collateral order exception in Vermont

2025Rule 5.1(a)’s final requirement is that the collateral order must be “effectively unreviewable on appeal from a final judgment.” Our Supreme Court has explained that in making this determination, “the question is not whether the order is appealable after final judgment, but whether the rights asserted would be lost, probably irreparably, if review were delayed until the conclusion of proceedings in the trial court.” State v. Lafayette, 148 Vt. 288, 291 , 532 A.2d 560, 561 (1987) (quotation omitted), overruled on other grounds by In re J.G., 160 Vt. 250 , 627 A.2d 362 (1993); accord In re Diet

2025Rule 5.1(a)’s final requirement is that the collateral order must be “effectively unreviewable on appeal from a final judgment.” Our Supreme Court has explained that in making this determination, “the question is not whether the order is appealable after final judgment, but whether the rights asserted would be lost, probably irreparably, if review were delayed until the conclusion of proceedings in the trial court.” State v. Lafayette, 148 Vt. 288, 291 , 532 A.2d 560, 561 (1987) (quotation omitted), overruled on other grounds by In re J.G., 160 Vt. 250 , 627 A.2d 362 (1993); accord In re Diet

2014“It ‘offers appellate redress in the small number of extraordinary cases where the normal appellate route will almost surely work injustice, irrespective of [the court’s] final decision.’” Id. (citing In re Maple Tree Place Assocs., 151 Vt. 331, 333 (1989) (per curiam)).

1991It "offers appellate redress in the small number of extraordinary cases where the normal appellate route will almost surely work injustice, irrespective of this Court's final decision." In re Maple Tree Place Associates, 151 Vt. 331, 333 , 560 A.2d 382, 383 (1989).

1991Johnsbury, 121 Vt. 404, 406 , 159 A.2d 94, 96 (1960) (when lack of jurisdiction appears “we do not wait for parties to object, but this Court must act of its own motion”); see, e.g., Chicago & North Western Transportation Co. v. Ulery, 787 F.2d 1239, 1240 (8th Cir. 1986) (“Although all parties join in urging us to accept th[e] position [that the issue of qualified immunity is immediately appealable], we must still examine it for ourselves, as it concerns our own subject-matter jurisdiction.”). 3 In Lafayette we adopted the collateral order exception to the finality rule announced in Cohen v. B

1988In Lafayette , we adopted the collateral order exception to the finality rule announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47 (1949).

2025Press, L.L.C., 566 F.3d 164, 181 (5th Cir. 2009) (concluding that order denying anti-SLAPP motion is immediately reviewable collateral final order), and Batzel v. Smith, 333 F.3d 1018, 1026 (9th Cir. 2003) (holding same), superseded by statute as stated in Breazeale v. Victim Services, Inc., 878 F.3d 759, 766-67 (9th Cir. 2017).

2025Press, L.L.C., 566 F.3d 164, 181 (5th Cir. 2009) (concluding that order denying anti-SLAPP motion is immediately reviewable collateral final order), and Batzel v. Smith, 333 F.3d 1018, 1026 (9th Cir. 2003) (holding same), superseded by statute as stated in Breazeale v. Victim Services, Inc., 878 F.3d 759, 766-67 (9th Cir. 2017).

2025Press, L.L.C., 566 F.3d 164, 181 (5th Cir. 2009) (concluding that order denying anti-SLAPP motion is immediately reviewable collateral final order), and Batzel v. Smith, 333 F.3d 1018, 1026 (9th Cir. 2003) (holding same), superseded by statute as stated in Breazeale v. Victim Services, Inc., 878 F.3d 759, 766-67 (9th Cir. 2017).

2025See In re Diet Drugs, 401 F.3d at 158-59 .

2025Rule 5.1(a)’s final requirement is that the collateral order must be “effectively unreviewable on appeal from a final judgment.” Our Supreme Court has explained that in making this determination, “the question is not whether the order is appealable after final judgment, but whether the rights asserted would be lost, probably irreparably, if review were delayed until the conclusion of proceedings in the trial court.” State v. Lafayette, 148 Vt. 288, 291 , 532 A.2d 560, 561 (1987) (quotation omitted), overruled on other grounds by In re J.G., 160 Vt. 250 , 627 A.2d 362 (1993); accord In re Diet

2025Compare Ernst v. Carrigan, 814 F.3d 116, 119, 122 (2d Cir. 2016) (explaining that federal appellate jurisdiction is limited to final decisions, which includes those that terminate an action and collateral final orders, and concluding that “orders passing on the merits of an anti-SLAPP motion do not fall within the collateral order doctrine”), with Henry v. 6 Lake Charles Am.

2014Discussion “The collateral order doctrine creates a limited, discretionary exception to the normal final judgment rule.” In re F.E.F., 156 Vt. 503, 507 (1991).

2014“It ‘offers appellate redress in the small number of extraordinary cases where the normal appellate route will almost surely work injustice, irrespective of [the court’s] final decision.’” Id. (citing In re Maple Tree Place Assocs., 151 Vt. 331, 333 (1989) (per curiam)).

2008See generally Swift & Co. Packers v. Compania Columbiana Del Caribe, S.A., 339 U.S. 684, 689 (1950).

2008See generally Swift & Co. Packers v. Compania Columbiana del Caribe, S.A., 339 U.S. 684, 689 , 70 S.Ct. 861 , 94 L.Ed. 1206 (1950).

1991See In re Pyramid Co., 141 Vt. 294, 300-01 , 449 A.2d 915, 918 (1982). 4 The good faith inquiry in a § 1983 suit asks whether an official’s acts violated clearly established “statutory or constitutional rights” of which the official reasonably should have known because § 1983 provides a remedy only for violations of federal constitutional and statutory law.

1991See In re Pyramid Co., 141 Vt. 294, 300-01 , 449 A.2d 915, 918 (1982). 4 The good faith inquiry in a § 1983 suit asks whether an official’s acts violated clearly established “statutory or constitutional rights” of which the official reasonably should have known because § 1983 provides a remedy only for violations of federal constitutional and statutory law.

1991Johnsbury, 121 Vt. 404, 406 , 159 A.2d 94, 96 (1960) (when lack of jurisdiction appears “we do not wait for parties to object, but this Court must act of its own motion”); see, e.g., Chicago & North Western Transportation Co. v. Ulery, 787 F.2d 1239, 1240 (8th Cir. 1986) (“Although all parties join in urging us to accept th[e] position [that the issue of qualified immunity is immediately appealable], we must still examine it for ourselves, as it concerns our own subject-matter jurisdiction.”). 3 In Lafayette we adopted the collateral order exception to the finality rule announced in Cohen v. B

1991We took the requirements of the exception to be those stated in Coopersac Lybrand v. Livesay, 437 U.S. 463, 468 (1978): “[T]he order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” In Mitchell v. Forsyth, 472 U.S. 511 (1985), the Supreme Court held that a trial court’s denial of a claim of qualified immunity met these requirements, and we agree with this determination.

1991See Hospitality Inns v. South Burlington R.I., 149 Vt. 653, 656-57 , 547 A.2d 1355, 1358 (1988).

1991See Hospitality Inns v. South Burlington R.I., 149 Vt. 653, 656-57 , 547 A.2d 1355, 1358 (1988).

1991Johnsbury, 121 Vt. 404, 406 , 159 A.2d 94, 96 (1960) (when lack of jurisdiction appears “we do not wait for parties to object, but this Court must act of its own motion”); see, e.g., Chicago & North Western Transportation Co. v. Ulery, 787 F.2d 1239, 1240 (8th Cir. 1986) (“Although all parties join in urging us to accept th[e] position [that the issue of qualified immunity is immediately appealable], we must still examine it for ourselves, as it concerns our own subject-matter jurisdiction.”). 3 In Lafayette we adopted the collateral order exception to the finality rule announced in Cohen v. B

1991Johnsbury, 121 Vt. 404, 406 , 159 A.2d 94, 96 (1960) (when lack of jurisdiction appears “we do not wait for parties to object, but this Court must act of its own motion”); see, e.g., Chicago & North Western Transportation Co. v. Ulery, 787 F.2d 1239, 1240 (8th Cir. 1986) (“Although all parties join in urging us to accept th[e] position [that the issue of qualified immunity is immediately appealable], we must still examine it for ourselves, as it concerns our own subject-matter jurisdiction.”). 3 In Lafayette we adopted the collateral order exception to the finality rule announced in Cohen v. B