dissenting. This is the second case to come before the Court within a year involving the powers of our assistant (or lay) judges.1 The first, Soucy v. Soucy Motors, Inc., 143 Vt. 615, 471 A.2d 224 (1983), involved their equity powers under existing statutes. The instant case, like State v. Dunkerley, 134 Vt. 523, 365 A.2d 131 (1976), before it, involves the powers of assistant judges in criminal cases under the United States Constitution. I believe that the controversy which developed following the Soucy decision, coupled with the serious nature of the offense charged here, has affected today’s result. If this case had come before us at the time Dunkerley was decided, the result here would have been different, of that I am certain. Today’s decision is not one which addresses a new question left open by Dunkerley, as the majority would persuade us. On the contrary, it is a retreat from the constitutional guarantees laid down so clearly in that case.
*51The legislature, long ago, stripped justices of the peace of judicial powers because, as such, they were net trained or otherwise qualified to perform those functions. Why it is that this Court, reversing the progressive course started in Dun-kerley, has fled back across the Rubicon to expand the powers of assistant judges, who are equally unqualified, I am at a loss to comprehend.
I.
DISCRETION
The holding in Dunkerley, that assistant judges may not participate in issues of law in criminal cases, is evaded here by broad and simplistic generalizations. Among these, the majority contends that, ultimately, the entire problem reduces to no more than an exercise of judicial discretion with no questions, either of law or fact, involved at all. The premise is wrong to begin with for at least two reasons.
A.
JUDICIAL DISCRETION IS A MATTER OF LAW PER SE
The majority undertakes to define “judicial discretion” by accepting, without analysis, the statement of a federal district court in 1964: “ ‘Discretion’ . . . means ‘sound discretion,’ not discretion exercised arbitrarily, but with due regard for that which is right and equitable under the circumstances, and directed by reason and conscience to a just result.” United States v. D’Argento, 227 F. Supp. 596, 600 (N.D. Ill. 1964). This definition is appropriate enough in the context of the case in which it appears. There was no need to address the legal aspects of judicial discretion; it was not an issue, and certainly it did not involve lay judges. In fact, not a single one of the decisions from other jurisdictions dealing with judicial discretion, cited in support of the majority opinion, involve lay judges. The legal ramifications of judicial discretion are neither acknowledged or discussed; they are simply ignored notwithstanding their clear significance. They should have been addressed at least, and explained away if possible.
No less a tribunal than the United States Supreme Court *52had occasion to recognize that “law” is an integral part of judicial discretion. Stating a definition, virtually identical to the definition relied on by the majority, except for the element that is the true key to the case at bar, the Supreme Court said:
When invoked as a guide to judicial action it [discretion] means a sound discretion, that is to say, a discretion exercised not arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of the judge to a just result.
Langnes v. Green, 282 U.S. 531, 541 (1931) (emphasis added).
It is not clear why the majority has elected to ignore the most important element of judicial discretion as it relates to this case. The decisions by this Court and courts of other jurisdictions that do not include the legal element of judicial discretion cannot be relied on as holding it is not an element, but only that it was not a concern in those cases.
On the other hand, where it has been deemed appropriate to address the question, the cases are legion, indeed I would venture to say they are nearly unanimous, in incorporating the legal element into their definitions. Thus:
It is well settled that discretion means legal discretion, in the exercise of which the judge must take account of the law applicable to the particular circumstances of the case and be governed accordingly. If the trial judge misconceives the applicable law or misapplies it to the factual complex, in total effect the exercise of legal discretion lacks a foundation and becomes an arbitrary act.
State v. Steele, 92 N.J. Super. 498, 507, 224 A.2d 132, 136-37 (1966) (emphasis added). In an early opinion written by Chief Justice John Marshall, the United States Supreme Court held:
Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the Court to follow it. Judicial power is never exercised for the purpose of giving *53effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the law.
Osborn v. United States Bank, 22 U.S. (9 Wheat.) 738, 866 (1824). “ ‘ [D] iscretion’ means legal discretion, in the exercise of which the trial judge must take account of the law applicable to the particular circumstances of the case and be governed accordingly.” Vorhies v. Cannizzaro, 66 N.J. Super. 551, 558, 169 A.2d 702, 706 (1961). Discretion contemplates “a conclusion based on a logical rationale founded upon proper legal standards.” McCleary v. State, 49 Wis. 2d 263, 277, 182 N.W.2d 512, 519 (1971) (emphasis added). Discretion means a legal discretion to be exercised in discerning the course prescribed by law according to principles established by the adjudicated cases. First National Bank v. Henshaw, 169 Okla. 49, 53, 35 P.2d 898, 902-03 (1934). It means a legal discretion, controlled and limited by sound principles of law applied to the facts. Nashville Grain Exch. v. United States, 191 F. 37, 39 (Comm. Ct. 1911). Discretion is a legal discretion, guided and controlled by fixed legal principles. Griffin v. State, 12 Ga. App. 615, 621, 77 S.E. 1080, 1083 (1913). It is not a personal discretion, but a legal discretion exercised according to principles of law. People v. Gage, 188 Mich. 635, 642, 155 N.W. 464, 467 (1915). Discretion means a judicial discretion calling for the invocation by a “trained mind” producing a result in conformity to law. Bartley v. Phillips, 317 Mass. 35, 42, 57 N.E.2d 26, 30 (1944). The exercise of discretion means the “application of statutes and legal principles to all of the facts of a case.” Shopiro v. Shopiro, 153 P.2d 62, 66 (Cal. App. 1944) (emphasis added).
I suggest that if every decision which does not include law in its definition of discretion can be cited as authority for the proposition that it is not an element, we may have the most comprehensive split of authority in judicial history.
I conclude, and I find the vast majority of courts, and probably all courts now, excepting, apparently, Vermont, agree that judicial discretion means legal discretion. It contemplates the understanding and application of legal standards, principles of law, and of adjudicated decisions. It envisions the exercise of this discretion by a law-trained judge. The Supreme *54Court of Indiana stated, in addressing the subject of lay judges: “We cannot in good conscience concede . . . that less legal ability and knowledge is required of a judge than of the lawyers practicing before the judge.” In re Judicial Interpretation of 1975 Senate Enrolled Act No. 441, 263 Ind. 350, 352, 332 N.E.2d 97, 98 (1975). The assistant judges, who are neither trained nor qualified, were confronted here with the determination and application of the law and legal standards and principles. Not only did they participate in the ruling, they overruled the presiding judge. In asserting a jurisdiction they never had, they violated the defendant’s fundamental constitutional right to due process. Discretion in the judicial sense does not exist in a vacuum; it is inextricably bound up with the law and the application of the legal standards and principles as the cases cited above indicate.
B.
SPECULATION AND THE NATURE OF MIXED QUESTIONS
Both parties argued on appeal that the acceptance or rejection of a plea agreement involves mixed questions of law and fact and, therefore, since questions of law are involved, albeit they may be mixed, participation by the assistant judges is prohibited by State v. Dunkerley, supra. The majority rejects this argument on the grounds, as I understand the opinion, that, in this case at least, there was no question of law (pure or mixed) to be resolved in the acceptance process; it was entirely a matter of nonlegal discretion of the kind any layman might exercise. In addition to my view discussed above, that all judicial discretion involves the application of legal standards and principles, I have two objections to the majority’s argument.
At the outset, it is an unsupported conclusion. The majority simply assumes that preliminary evidentiary rulings cleared the way for a pure act of discretion; no question of law could possibly remain. This is naked speculation, nothing more. Appellate courts are, necessarily, tied to the record transmitted from the lower court. They cannot make findings of fact — indeed if the findings below are inadequate the judgment must be reversed — nor can they speculate outside of the rec*55ord as to what happened or did not happen, or what was raised or not raised, below. Nevertheless, that is exactly what the majority has done. The opinion is really saying that the majority cannot visualize any question of law (pure or mixed) which might have arisen and been resolved at the in camera confidential discussion between the judges when they acted on the agreement. There is no transcript of these discussions, nothing; a void which the majority fills by speculating when the true situation is that we do not know. Therefore, I believe there is no basis for concluding that the decks had been cleared for a pure discretionary action.2
Secondly, I believe the majority fails to understand the nature of mixed questions of law and fact. They are not like apples and oranges mixed together in a basket, each unit of which may be identified as one or the other and separated out. A mixed question is analogous to a crossbred animal. In the latter instance there is but one animal, not two. In the former there is but one question, although it contains elements of law and elements of fact. That, I think, is what the parties are arguing, and they are right. Quite apart from the nature of judicial discretion itself, when the question before the court was whether to accept or reject the agreement, that question in itself was an inseparable mixture of the standards and principles of law to be applied to the fact of the proposed agreement and other surrounding facts. Therefore, the fact that the ruling was discretionary is immaterial. The ruling embraced a question of law; therefore, the action of the assistant judges was beyond their jurisdiction.
In view of the above discussion I think it is clear that in overruling the presiding judge and rejecting the plea agreement, the assistant judges exceeded their powers. In doing so, the defendant’s fundamental right to due process has been violated. This is not a case of first impression; it is a clear progeny of Dunkerley, and the result is contrary to the constitutional protections defined in that case.
*56II.
THE “SENTENCING” ARGUMENT
The majority argues next that in rejecting the “entire agreement” the assistant judges focused only on its sentencing aspect. The obvious flaw in this argument is that the case was not yet at its dispositive phase. The majority and the amicus brief filed on behalf of the assistant judges seem unable to make this distinction. At the point the lay judges saw fit to act as they did, the only issue before the court was the acceptance or rejection of the agreement. But this issue involved questions of law, whether mixed or not, as well as legal principles. See § I, supra. There is nothing magic about the lay judges’ “focus” on a phase of the case that had not been reached that exempts their action from the ruling in Dunlcer-ley prohibiting their participation in rulings on matters of law.
It is true that the acceptance of a plea agreement by the presiding judge acting alone may dilute in whole or in part, depending on the terms of the agreement, the sentencing powers of the assistant judges (assuming they exist).3 However, their analogous powers to make findings of fact are likewise diluted by the exclusion of evidence by the presiding judge that they might have chosen to hear. To hold that assistant judges have the powers claimed here merely because of another power which may arise at a later time is equivalent to saying that they must equally have the discretionary power to rule on the admissibility of evidence simply because they would, thereafter, have the power to base findings of fact on that evidence.
I disagree with this, and with any attempt to break down the acceptance or rejection of a plea agreement into separate compartments based on law and fact (or a mixture thereof), or on “focus,” considered in a vacuum. A ruling on a plea agreement incorporates the entire agreement and all of its aspects. Because such a ruling involves a mixed question and an act of judicial discretion, the person (s) making the decision must possess, above all, the qualifications to interpret, and apply the law and legal principles. However much they may protest, lay judges do not have that essential qualification; *57lacking that, they lacked the power to rule as they did. Their action was contrary to our holding in Dunkerley, and a violation of V.R.Cr.P. 54(c) (1) (ii).
III.
AUTHORITIES
It is evident that the majority has been unable to find any precedential authorities to support its position other than by reference to a case containing an incomplete definition of “discretion.” Nevertheless, in its effort to bolster the result, the majority relies on such cases as Gordon v. Justice Court, 12 Cal. 3d 323, 525 P.2d 72, 115 Cal. Rptr. 632 (1974), cert. denied, 420 U.S. 938 (1975), and North v. Russell, 427 U.S. 328 (1976). This attempt fails in the face of any careful analysis, and regardless of the effort to distinguish them, the attempt only serves to emphasize that they provide inescapable support for the contrary view espoused by this dissent.
In Gordon, the Supreme Court of California abolished the state’s system of lay judges as violative of due process. Nevertheless, the majority points out that under the California system the lay judges presided alone, with power to rule on all issues at trial (law as well as fact), whereas, in Vermont, the lay judges must always sit with the presiding judge.
That this distinguishing feature can and does break down is graphically illustrated by the case at bar. If, as it appears here, our lay judges have the power to overrule the presiding judge on questions of law, simply because of a mix with questions of fact, there are, for all practical purposes, no distinctions at all to the extent of those rulings between the abolished California system, and cases that come before Vermont’s triumvirate superior courts. That, of course, is precisely what has happened here, and why, to that extent, the distinguishing feature fails to stand up, and why Gordon, in holding the lay judge system violates due process, supports the identical due process claim made here by both defendant and the State. It is interesting certainly, if not indeed instructive, that the United States Supreme Court denied certiorari in Gordon.
Further, the majority attempts to counter the statement of the California court that the likelihood of a fair trial is substantially diminished when conducted by lay judges, Gordon, *58supra, at 329, 525 P.2d at 76, 115 Cal. Rptr. at 636, by saying that defendant here has not demonstrated any abuse of discretion on the part of the assistant judges in ruling as they did. Apart from the virtual impossibility of such a showing, this is irrelevant. In plea bargaining matters, the constitutionality issue hinges on jurisdiction: the authority or right to act at all. Very simply, they had no authority to act; therefore, the manner in which they did act is a smoke screen which should not be in the case.
I do agree with the majority that the United States Supreme Court decision in North v. Russell, supra, is not directly in point. I would go far beyond that: it is a red herring; it is not in point at all. In that case, as the majority points out, a person charged with driving under the influence of intoxicating liquor was subject to an initial trial before a lay judge alone who was authorized to rule on issues of both fact and law. Nevertheless, the Supreme Court held that fact, by itself, was not fatal, because, under the law of the state involved, if the suspect was convicted, he then had an absolute right to a new trial before a lawyer judge.
This distinction seems to me so obvious that reliance on North by the majority is badly conceived notwithstanding the rationale employed to explain it away. In fact, North provides legitimate support for defendant and the State. In order to have either precedential or instructive value for purposes of this case, a defendant would have to have an absolute right to a new acceptance hearing before a lawyer-trained judge alone whenever the assistant judges overruled the presiding judge. I would point out also that whatever right the defendant in North may have had to appellate review on issues of law had nothing whatever to do with his right to be tried before a lawyer-trained judge. The key to North is the de novo right, not the right to review by an appellate court. Since, unlike North, defendant here (and others in a similar situation) have no corresponding absolute right to a hearing de novo before a lawyer-trained judge alone, the case does not support the majority view. Indeed, it is implicit in North that if the absolute right to a trial de novo before a lawyer-trained judge did not exist, the result would have been different.
The majority’s attempt to distinguish North on the grounds that the mere presence of the lawyer-trained judge below, and *59the Dunkerley limits on the powers of assistant judges, coupled with the right of appeal to this Court before five lawyer-trained justices, “bring this case within the due process parameters announced in North,” fails for substantially the same reasons that the majority analysis of Gordon is flawed. As long as the assistant judges are given the powers to decide questions of law (pure or mixed) independently of the rulings of the presiding judge, the latter’s mere presence is meaningless, as is the right of appeal, since this Court has, by today’s decision, granted to assistant judges the very power that has been challenged: the right of lay judges to rule on questions having legal implications. That issue is no longer appealable. The only thing left to a defendant now is an appeal based on an abuse of discretion. However, that is a practical impossibility in plea agreement cases, because, as noted above, the deliberations of the trial court are conducted in secret. Cf. Slayton v. Ford Motor Co., 140 Vt. 27, 33, 435 A.2d 946, 949 (1981) (Billings, J., dissenting, based in part on the impossibility of determining whether the jury, which also deliberates in secret, was prejudiced by a controversial instruction). Moreover, there is no right to findings of fact or to conclusions of law even if they had been requested.
The majority also cites Santobello v. New York, 404 U.S. 257 (1971), for the proposition that a court may reject a plea agreement in the exercise of sound judicial discretion. Id. at 262. Santobello does not support the majority for several reasons. It is distinguishable on its facts; the decision did not involve lay judges. Moreover, the case does not undertake to define discretion as that term is applied to courts, i.e., as embracing legal concepts. There was no need to do so; consequently there is reason to suppose that it is in a different context.
There is not one single case cited by the majority, except those which, in fact, support this dissent, that involve lay judges, or contain definitions which address the key issue in this case; accordingly, they are not in point. And finally, the offhand rejection of V.R.Cr.P. 54(c) (1) (ii) as applicable to plea agreements is beyond comprehension. An act of judicial discretion was involved; that means a legal discretion. On the other hand the record provides absolutely no support for the *60majority assertion that there were no questions of law resolved, or remaining to be resolved, at the discussion in chambers.
I conclude the majority opinion is entirely lacking in any valid support from the cases cited and from the rules.
IV.
EFFECTIVE ASSISTANCE
Defendant argues that rejection of the plea agreement by the assistant judges served to deny him his constitutional rights to the effective assistance of counsel and due process of law. The basis 'of the objection, founded primarily on this Court’s decision in Dunkerley, supra, is adequately stated in the majority opinion (q.v.) ; accordingly, it need not be repeated here in full. Nevertheless, I am in complete accord with defendant’s position on the issue. Further, because the cases are so clearly and strikingly in point, I would remind the majority of the holding of the Indiana Supreme Court, quoted earlier in this opinion, relating to the legal knowledge and ability required of judges vis-a-vis attorneys, in In re Judicial Interpretation of 1975 Senate Enrolled Act No. 441, supra, and of the California Supreme Court in Gordon, supra, at 328, 525 P.2d at 75, 115 Cal. Rptr. at 635: “Whatever the justification for permitting laymen to preside over criminal trials in the 1800’s, it is a well-recognized principle that even longstanding practices are subject to constitutional scrutiny and must meet the advancing standards of due process.”
The opinion recites both of these statements, but sloughs them off with an argument that is spurious and hollow at best. In effect, the majority expects us to accept the proposition that the mere presence of the presiding judge below, and the right of appeal to this Court, consisting of five lawyer-trained justices, is adequate. As pointed out above, this argument not only begs the question, it does not even address it. Once the assistant judges are given the power, conferred upon them today by the majority, to rule on questions of law, however limited the right may be, that issue is dead; it is not appeal-able nor will the presence of the presiding judge below resolve anything since he is subject to the untrained and unqualified predilections of laymen who may now overrule him at will on plea agreements. I reiterate: the underlying issue to be exam*61ined here in its constitutional dimensions is jurisdiction. Justification for the majority view that fails to address the jurisdiction to make decisions is not in point; it speaks to a manufactured issue, and is entirely irrelevant to the constitutional issues which are before us.
Of course defendant has been denied the effective assistance of counsel. How can it be otherwise? Rulings on the legal issues inherent in the acceptance or rejection of plea agreements are in the hands of the untrained and unqualified, and defense counsel is helpless in the face of it. Counsel cannot even formulate a meaningful abuse of discretion claim because the deliberations which lead to the decisions are conducted behind closed doors.
It is disturbing that the majority pays lip service to the limitations placed on the authority of assistant judges by Dunkerley as additional support for its decision, when, in fact, the very express prohibitions, presumably established by that case, are brought to nothing for this defendant and for others who may be in similar circumstances hereafter. We should be under no complacent illusions: that is exactly what has occurred today. This Court is satisfied that less legal ability is required of assistant judges to the extent they are empowered to act independently than of the lawyers practicing before them. Cf. In re Judicial Interpretation, supra. Enhancing the powers of lay judges, at the expense of the constitutional right to due process of defendants caught in the toils of criminal law, is the unfortunate consequence of today’s decision. I believe that assistant judges are not trained or otherwise qualified to exercise the legal discretion called for in this case. On the other hand, as the Supreme Court of California has stated, while fairness is not impossible in matters which may be controlled by lay judges, the likelihood is substantially diminished. Gordon v. District Court, supra, at 329, 525 P.2d at 76, 115 Cal. Rptr. at 636. Courts must always have in mind and resist the temptation to respond to public pressure when a serious crime is involved; any other course approaches vigilante law. There will be others charged in the future with serious or minor offenses; in some cases the defendant will indeed be innocent. But what the majority has done today will affect the right of every person from this day on.
I would reverse and remand for a new hearing on the plea *62agreement before a superior judge sitting alone. That is the only remedy which can assure this defendant, and others to come, that their due process rights are of more concern to the Vermont judicial system than are the secondary concerns of the judges who are a part of the system.
Since there are currently no assistant judges who are lawyers, the terms “assistant judges” and “lay judges” are used interchangeably throughout this dissent. The phrase “presiding judge” in this dissent means a lawyer-trained superior judge.
There is nothing in the record either from which this Court can determine who made the decision on the motion to suppress. It would be unsupported speculation to conclude that, because it was a question of law, it was made by the presiding judge alone. In the absence of a record it may be speculated, with equal validity, that because the assistant judges were present, they participated.
The power of lay judges to participate in sentencing is not an issue in this case, although it has been questioned elsewhere.