Rule 80H.Civil Violations

Comparable amendments are being made simultaneously in Rules 80F(b) and 80K(b) and (c).

Advisory Committee’s Notes

Rule 80H(d) is amended consistent with the simultaneous amendment of Rule 80F(d) to expedite the handling of certain civil violation proceedings in which a waiver list may be established by a resident judge or the chief judge. See Advisory Committee’s Note to simultaneous amendment of Rule 80F(d). Appropriate instances include those offenses for which the Legislature has fixed a minimum mandatory penalty which many judges would order the defendant to pay.

Advisory Committee’s Notes

Rule 80H(b) is amended to eliminate the requirement of a filing fee in civil violation proceedings. The amendment reflects what is generally the present practice. Payment of filing fees in such proceedings simply represents the transfer of funds from one pocket of the state to another.

Rule 80H(i) is abrogated. Statutory procedures for the enforcement of fines in civil violation proceedings have effectively superseded the Rule. See 14 M.R.S.A. §§ 3141 et seq.

Rule 80H(k) is amended to make clear that the only costs to be awarded in civil violation proceedings are those expressly provided by statute. There is presently no costs provision in Rule 80H, which means that the provisions of Rule 54B apply to civil violation proceedings. In practice, the state never files a bill of costs in such proceedings. By statute, costs of $25 are automatically imposed when a fine is not paid within 30 days. 4 M.R.S.A. § 173-A. The present amendment makes clear that the statute is the sole provision regarding costs.

New Rule 80H(1) eliminates the requirement of service of notice of entry of order or judgment on the state and on a defendant who has pleaded guilty or been informed of the judgment in open court. This provision reflects current practice. The burden of serving such notices in civil violation proceedings would be immense, and the practice is not necessary in the cases encompassed in the Rule.

Advisory Committee’s Notes

Rule 80H(g) is amended to provide a procedure for removal from the District Court to the Superior Court of civil violation proceedings brought under Rule 80H in which a right to trial by jury may now be claimed as a result of the Law Court’s recent decision in City of Portland v. DePaolo, [531 A.2d 669] No. 4522 (Me. Oct. 1, 1987). In that case, a District Court prosecution under a Portland ordinance that prohibited the sale of obscene materials, the Court held that Rules 80H(g) and (j) violated the guarantee of trial by jury in civil actions provided by article I, section 20, of the Maine Constitution because those provisions prevented both removal and appeal with trial de novo to the Superior Court. The reach of DePaolo is unclear, because the opinion calls for an examination in each case to determine whether the case is one in which the right to a jury would not have existed at the time of the adoption of the Maine Constitution in 1820. Nevertheless, it seems plain that the jury issue will now be raised frequently in civil violation proceedings and that the right will be found to exist in many instances in which it has not heretofore been recognized.

Under the amended rule, the defendant must demand a jury in a motion for removal filed at any time after the commencement of the proceeding, but in any event not later than 21 days after defendant’s appearance under Rule 80H(d)(l). Failure to move for a jury within the time period results in waiver of the right. The 21-day period after appearance is designed for consistency with M.D.C.Cr.R. 40(a), under which jury trial in a District Court criminal prosecution must be demanded within 21 days after arraignment.

In language borrowed from Rule 75B(b) concerning motions for procedural orders in the Law Court, the amended rule provides that the motion may be heard ex parte. The court, however, has discretion to await a reply and decide the motion after hearing both parties. If the court finds that there is a right to jury trial, it may order the action removed. If the motion is granted, the rule requires the payment of a removal fee as in other removed cases.

Service of the order of removal will fulfill the function of the notice of removal provided for other civil actions in Rule 76C and the action is to proceed thereafter as provided in that rule. The purpose of this provision is to make clear that, regardless of the future course of the proceedings, the action will remain in the Superior Court. If the Superior Court on plaintiff’s motion decides that there is no right to trial by jury, or if the defendant ultimately waives the right in the Superior Court, the case will be tried in the Superior Court without a jury. Similarly, if the defendant changes the answer to one that admits the violation, judgment will be entered in the Superior Court without trial.

Advisory Committee's Note — October 24, 1977

Rule 80H is abrogated simultaneously with the promulgation of amended D.C.C.R. 80H to implement the amendment of 17 M.R.S.A. § 4-A(4) by 1977 Laws, c. 510, § 16. See Advisory Committee's Notes to 1977 amendment of D.C.C.R. 80H. The present rule is abrogated, because it is conceived that as a practical matter there will be no occasion to invoke Superior Court jurisdiction in civil violation proceedings. The detailed provisions of the present rule, with modifications called for by the increased number of civil violations, have been incorporated in the amended District Court rule.

Abrogation of the present rule means that there is now no procedure available for bringing summary proceedings upon civil violations in the Superior Court. Abrogation should not be understood, however, as reflecting any determination of the question whether there may be Superior Court jurisdiction of civil actions upon civil violations, either in plenary proceedings under the Rules of Civil Procedure or in summary proceedings if the Supreme Judicial Court should again provide for such proceedings by special rule.

Advisory Committee.'s Note — November 15, 1976

This rule is adopted to implement the provisions of the new Maine Criminal Code, 17-A M.R.S.A. §§ 4(3), 17(1), that certain conduct is to be deemed a "civil violation", the sanctions for which are enforceable in a civil action brought by the appropriate public official and commenced by service of a citation. Its provisions are made applicable in the District Court by the simultaneous adoption of D.C.C.R. 80H. In so far as possible, the rule tracks D.C.C.R. 80F, which provides for comparable proceedings under the Uniform Traffic Ticket and Complaint. Certain conforming changes have been made in D.C.C.R. 80F by simultaneous amendment.

The rule applies only to civil violations that have been expressly designated as such in the statute creating them. See 17-A M.R.S.A. § 4(3). An amendment to the rule will be necessary if the provisions of 17-A M.R..S.A.. § 4-A(4), declaring prohibited conduct for which imprisonment is not the penalty to be a civil violation, take effect as provided in 17-A M.R.S.A. § 4-A(1)(B) on October 1, 1977, without further legislative change. Further, the rule is not intended to preclude the commencement by the Attorney General of an ordinary civil action to enforce a civil penalty, or for other relief, where authorized by law.

Rule 80H(a) ties the scope of the rule to the statutory definition of "civil violation" and makes clear that the rule does not apply to traffic infractions. Such proceedings will continue to be brought in District Court under D.C.C.R. 80F. A separate rule is needed for traffic infractions because of differences in terminology and the fact that there is no Superior Court jurisdiction of them.

Rule 80H(b) provides that the action is commenced upon service of a citation on the defendant by personal delivery to him. Cf. Rule 3. This is important for purposes such as tolling the statute of limitations. The citation, which is to be in the form provided in subdivision (c), may be prepared either by a law enforcement officer who has probable cause or, upon complaint, by the clerk if he is satisfied that defendant has committed a violation. (This standard, borrowed from D.C.Cr.R. 4(a), is essentially a probable cause standard.) The latter method is based on 4 M.R.S.A. § 171-A, providing for issuance of such civil process upon complaint. The citation is to be served either by the preparing officer or by an officer to whom the clerk has transmitted it for service. In either event, the defendant is not to be taken into custody except as permitted in 17-A M.R.S.A. § 17 for a brief period necessary to ascertain his identity. After service, the officer is required to file the original of the citation with the court.

Rule 80H(c) provides that the citation shall contain the elements required by 17-A M.R.S.A. § 17(1). Cf. D.C.C.R. 80F(c). It is the intent of the rule that, pending adoption of a new form, the Uniform Traffic Ticket and Complaint, with appropriate deletions, may be used as process for any civil violation. The rule expressly states that the citation, whatever its form, is to serve as the state's complaint for pleading purposes in the civil action that is to follow.

Rule 80H(d) is identical to D.C.C.R. 80F(d), with elimination of references and terminology peculiar to traffic infraction proceedings. Note that, as in the traffic infraction rule, an answer admitting a violation is not admissible as an admission in other proceedings. The purpose is to encourage such answers in the interests of cutting down the number of trials. Cf. M.R.Ev. 410.

Rule 80H(e) limits venue to the county in which the violation is alleged to have been committed. Cf. D.C.C.R. 80F(e).

Rules 80H(f), (h), (i), are identical to D.C.C.R. 80F(f), (h), (i). Rule 80H(g) is necessary in the Superior Court. Like the limitation on discovery, it recognizes the basic simplicity of the issues in such proceedings and is intended to promote speed and economy in court.

Rule 80H(j) is identical to D.C.C.R. 80F(j) as amended. The intent of the rule is to take no position on the question of the state's right to appeal a civil violation, which is arguably left ambiguous by 17-A M.R.S.A. §§ 4(3), 17(1). The rule omits the provision found in D.C.C.R. 80F(j) prior to its amendment that required an appellant to deposit with the court the amount of the judgment as a condition for a stay. This provision was deemed unduly onerous on defendants who might have a legitimate ground of appeal and basically inappropriate as a condition on appeal in a civil action. See Rule 62(e).