Rule 80.6.Judicial bureau procedures

Reporter’s Notes—2022 Amendment: Rule 80.6 is amended in several places to correct statutory references and update terminology. Rule 80.6(a), (i), and (m) are amended to remove reference to “district court” and replace it with “Criminal Division of the Superior Court” to reflect the statutory change made by 2009, No. 154 (Adj. Sess.), §§ 236, 238, codified at 4 V.S.A § 1107(a). Rule 80.6(c)(4) is amended to correct a statutory reference by substituting 24 V.S.A. § 1977(a) for 24 V.S.A. § 1979(c). Section 1977(a) provides that the complaint in a municipal civil case in the judicial bureau is to be signed by the issuing municipal official. Section 1979(c) is part of a section providing a procedure for a judicial bureau hearing on a municipal ordinance violation. Paragraph 86(c)(4) relates to the issuance of municipal complaints rather than their hearing. Thus, § 1977(a) is the appropriate statutory reference. Rule 80.6(i)(1) is amended to substitute the word “transmit” for “mail” in reference for how the judicial bureau clerk should send the notice of appeal to the Criminal Division to reflect the change to electronic case records. Rule 80.6(k) is deleted and reserved. The rule referred to municipal fine contempt proceedings filed by a municipality pursuant to 24 V.S.A. § 1981(d), which was repealed in 2012. 2011, No. 83 (Adj. Sess.), § 1. The remedies of civil contempt and referral to a collections agency for failure to pay a judicial bureau judgment are now provided in 4 V.S.A. § 1109(c) and (d). Rule 80.6(m) is amended in accord with a statutory change substituting “Chief Superior Judge” for “Administrative Judge.” See 2021, No. 147 (Adj. Sess.), §§ 8, 9, 21, codified at 4 V.S.A. §§ 21a, 22, 1104; Administrative Order No. 18 (creating Chief Superior Judge). Rule 80.6(n) is amended to add V.R.C.P. 43.1 to the list of civil rules that do not apply in judicial bureau proceedings. Remote hearings are covered by the provisions of Rule 6 of the Vermont Rules of Small Claims Procedure.

Reporter’s Notes—2018 Amendment: Rules 80.6(c)(3), (e)(1) and (5), and (l)(1) are amended to change their 5-, 10-, 15-, and 20-day time periods to 7, 14, and 21 days consistent the simultaneous “day is a day” amendment of V.R.C.P. 6.

Reporter’s Notes—2016 Emergency Amendment: Rule 80.6(e)(3) is amended to incorporate language added to 4 V.S.A. § 1105(f) by Act No. 57 of 2013, § 23. A declaration under penalty of perjury is provided as an alternative to an affidavit by 50 U.S.C. § 3931(b)(4) (formerly 50 U.S.C. App. § 521(b)(4), recodified effective December 1, 2015). Presumably, an affidavit filed as formerly provided by the rule would satisfy the requirement of the amended rule. Rule 80.6(e)(6) is added to incorporate the language of 4 V.S.A. § 1105(g), added by Act No. 51 of 2007, § 1.

Reporter’s Notes—2005 Amendment: Rule 80.6 is amended to reflect the establishment of the judicial bureau by Act No. 121 of 1997 (Adj. Sess.), now found, as amended, in 4 V.S.A. §§ 1102- 1108, and to clarify the procedure for actions in the bureau. (Rule 80.6 was added to the Rules of Civil Procedure effective July 1, 2002, to carry forward the provisions of former D.C.C.R. 80.6 in light of the abrogation of the separate District Court Civil Rules. For provisions of the rule not affected by the present amendments, see Reporter’s Notes to former D.C.C.R. 80.6 and the 1994 emergency amendment thereto.) Rule 80.6(a) is amended to refer to the enabling statute in Title 4. Rule 80.6(b)(1) combines the current Rules 80.6(b)(1) and (2). It also clarifies the source of address for corporations. Consistent with due process standards, notice must be served in the way most calculated to give a corporate defendant actual notice. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950). Accordingly, the rule provides a hierarchy of methods that the officer must follow. Cf. 12 V.S.A. § 891. Note that address needed is that of the named corporate defendant, not another entity such as a rental company. The rule does not require the officer to make reasonable inquiry as to the address of a minor’s legal guardian, but the summons and complaint form will continue to provide space for that information, and officers are encouraged to obtain it. See Rule 80.6(l). The rule continues to put the burden of reporting a change in address upon the defendant. Rule 80.6(c)(1) only requires service at the address provided pursuant to Rule 80.6(b). Under Rule 80.6(e), a defendant who fails to answer or appear is defaulted. This is the sanction for a defendant who fails to provide a new address. Former Rule 80.6(b)(3) is renumbered as Rule 80.6(b)(2). Rule 80.6(c) is amended to recognize the practice of commencing the action by serving the complaint, which occurs prior to filing for most complaints within the judicial bureau’s jurisdiction. The amendment adds time limits for serving a filed complaint and filing a served complaint. Rule 80.6(c)(2) is amended to provide for service in person or by first-class mail and to permit service on a corporate defendant’s registered owner as well as registered agent. In the absence of statutory authority to the contrary, the driver of a vehicle would not be an appropriate recipient of service for a corporate defendant unless he or she acts in one of the corporate capacities enumerated in the rule. Rule 80.6(c)(3) is amended to recognize that the answer is filed with the judicial bureau, but not served upon the state or municipality. Rule 80.6(c)(5) is added to cure a serious problem with defective complaints. In the absence of probable cause review, the judicial bureau needs a mechanism to review the relatively small number of complaints that may be defective. Review will prevent the kind of situation that occurred in State v. Yorkey, 163 Vt. 355, 657 A.2d 1079 (1995), where a town had enacted an ordinance providing for fines payable to the town for speeding on a state highway. Holding that the town had no power to enact such an ordinance, the Supreme Court noted that the real purpose of the ordinance was to divert revenues from the state to the town. The review procedure will enable the judicial bureau to address such situations in the great majority of cases that are resolved by default or admission rather than hearing. Rule 80.6(c)(6) is added to cure the continuing problem of amendments on the face of an original complaint after a carbon copy has been served upon the defendant. The result often is that a defendant receives more points than stated on the copy or that the fine is higher than shown on the copy. Some defendants have been suspended for not paying the entire fine, yet they paid the amount shown on the copy served and were never served with an amendment. The rule allows the judicial bureau to void the complaint where a proper amendment has not been served. Rule 80.6(c)(7) is added to require voiding illegible complaints. Rule 80.6(c)(5)-(7) provide for voiding, rather than dismissing, the complaint. Cf. Rule 80.6(f). Voiding a complaint for defects in its preparation is the functional equivalent of dismissal without prejudice. Pursuant to Rule 80.6(c)(8), the clerk is to notify the officer of the reasons for voiding the complaint. If an officer wishes to cure the defects and prepare a proper complaint, then refiling is permitted, but if a complaint is voided a second time for the same reason, the second voiding will be with prejudice. Rule 80.6(d)(2) is amended to simplify where hearing notices to officers are mailed, to recognize that defendants may hire attorneys, and to recognize that most continuances are decided ex parte. If a continuance is granted, the clerk, as Rule 77(d) would require, must notify the nonmoving party in order to avoid the expense and burden of an unnecessary appearance. Rule 80.6(d)(4) is amended to reflect the adoption of the Vermont Rules of Small Claims Procedure effective September 1, 2002. The provision for electronic or stenographic recording is deleted, because V.R.S.C.P. 6(c) provides for such recording in all cases. Rule 80.6(d)(5) is amended to eliminate the requirement that the officer bring two photocopies of a municipal ordinance for use of the defendant and admission in evidence. The rationale is that the officer should be prepared to present the ordinance to avoid continuances. Copies can be made as necessary by the clerk. The rule makes clear that a photocopy is admissible in evidence, thus allowing the officer to retain the certified copy for use in other cases. Rule 80.6(d)(6) is added to make a provision for state and federal regulations similar to that of paragraph (5) for ordinances. Rule 80.6(d)(7) addresses the issue of failure to comply with discovery orders and subpoenas. Occasionally, a police department refuses to produce a radar manual, a certificate of accuracy or repair record for a speed measurement device, or other relevant documentation. The rule formalizes the use of sanctions in these situations. The permitted sanctions are essentially case management tools, rather than an award of costs or contempt. Rule 80.6(e)(1) is amended to apply generally to all types of complaints. The legislature eliminated the $175.00 limitation during the last legislative session. See 24 V.S.A., ch. 59, and 4 V.S.A., ch. 29. The amendment authorizes the judicial bureau clerk to perform the ministerial task of entering a default judgment for failure to timely answer a complaint. As the Reporter’s Notes to former D.C.C.R. 80.6(e) pointed out, the judicial bureau may default a defendant for failure to answer or for nonappearance at the hearing. If the officer fails to appear at the hearing, the result is a dismissal with prejudice by virtue of Rule 80.6(f), whether or not the defendant appeared. Rule 80.6(e)(3) carries forward existing language concerning the affidavit required by what is now the Servicemembers’ Civil Relief Act, 50 U.S.C.A. App. § 520 et seq. (enacted December 19, 2003), substituting “hearing officer” for “bureau.” See Reporter’s Notes to Rule 80.6(f)(4)(B). Note that the affidavit required may be included as an entry in the complaint. Rules 80.6(f)(1) and (2) are amended to clearly describe the authority of issuing officers and state’s attorneys to dismiss complaints. A state’s attorney is limited to dismissal prior to judgment; thus, the state’s attorney must file a motion to vacate a judgment where post-judgment dismissal is required. The judgment must be vacated to delete the motor vehicle record or fish and wildlife record. Former Rule 80.6(f)(3) is renumbered as Rule 80.6(f)(4)(A). New Rule 80.6(f)(3) is added to enable the judicial bureau clerk to dispose of hundreds of complaints served upon defendants each year without the officer filing or serving the original. The times for filing and serving are set forth in Rule 80.6(c). Rule 80.6(f)(4) is added to carry forward the hearing officer’s authority under former Rule 80.6(f)(3) to dismiss if the issuing officer fails to appear and to provide authority to dismiss actions for want of prosecution and to serve the ends of justice. Subparagraph (B), allowing dismissal after two years without adjudication, is based on Rule 41(b)(1). The provision is necessary to dispose of certain groupings of stale cases. For example, the judicial bureau has pending approximately 1,750 unanswered complaints that were filed between July 1990 and June 1997 in which default judgments cannot be entered because affidavits required by the Servicemembers’ Civil Relief Act, 50 U.S.C.A. App. § 520 et seq. before judgment may be entered have not been filed. See Rule 80.6(e)(3). The affidavit, required only for natural persons at least eighteen years of age, must state that the defendant is not on active duty with the military or that the facts are unknown or must include specific information about where the person is serving on active duty to enable the judicial bureau or issuing officer to request a discharge date. When a defendant is on active duty with no known discharge date, the case remains unresolved indefinitely. Judicial efficiency, as well as fairness, require dismissal in such cases, and in other stale cases going forward, because the judicial bureau has obsolete addresses for many of the officers and defendants, and evidence has been lost through faded memories. Rule 80.6(f)(4)(C), providing authority to dismiss to serve the ends of justice, is based on V.R.Cr.P. 48(b)(2). It is necessary, because state’s attorneys rarely are involved in the judicial bureau’s cases. Generally, a police officer serves as witness and prosecutor. The officer’s direct involvement in the facts of the case may sometimes interfere with sound decision-making in the prosecutorial role. The rule embodies the broad reading of V.R.Cr.P. 48(b)(2), as well as the criteria guiding the exercise of the judicial officer’s discretion, expressed in State v. Sauve, 164 Vt. 134, 666 A.2d 1164 (1995). The rule is not intended to give the hearing officer power to impose the functional equivalent of a deferred sentence without the consent of both parties. Former Rule 80.6(f)(4) is renumbered as Rule 80.6(f)(5). A new provision allows the issuing officer or state’s or municipal attorney to dismiss a complaint without prejudice in furtherance of a settlement agreement with the defendant—for example, to dismiss if the defendant agrees to go to a community restorative justice panel. Rule 80.6(g)(3) is added to make clear that Rule 80.6(g)(2) does not preclude use of a prior judgment of violation based on an admission from being used in the assessment of the appropriate fine or penalty in a later case. Rule 80.6(h)(2) is amended to stay payment of restitution (fish and wildlife cases) and costs pending appeal. Note that, pursuant to Rule 54(d)(1), applicable by virtue of Rule 80.6(n), costs may be awarded against the losing party, whether it is the municipality or the defendant. See Herbert v. Town of Mendon, 159 Vt. 255, 617 A.2d 155 (1992), however, the Court, at 159 Vt. 261, 617 A.2d at 159, upholding award of interest and costs against municipality in a zoning dispute under Rule 54(a)); 32 V.S.A. §§ 1431(f), 1433, 1471. Rule 80.6(i)(1) is amended to make clear the intention of the original rule that the judicial bureau can decide a motion to extend time to file an appeal in accordance with V.R.A.P. 4. Although there is no reference to the judicial bureau in the appellate rule, Rule 80.6(i)(1) as drafted incorporated V.R.A.P. 3 and 4, and the usual procedure is for the motion to be decided by the court from which the appeal is taken. The amended rule also makes clear that, as in a small claims action, the clerk, rather than the appellant as in other actions, is to serve a copy of the notice of appeal on the parties and the clerk of the district court. The same reason applies in both bureau and small claims proceedings: Greater efficiency and certainty when dealing in an informal process with many pro se parties. The original notice of appeal remains with the bureau to be transmitted with the record pursuant to Rule 80.6(i)(2). See Rules 72(a), 74(b)(1), 76(a)(2); V.R.A.P. 3(b)(1); V.R.S.C.P. 10(a). Former Rule 80.6(k) requiring the judicial bureau to set waiver penalties in the absence of municipal action has been deleted because recent statutory changes require municipalities to set waiver penalties. See 4 V.S.A. § 1102(d), 23 V.S.A. § 2302, as amended by Act No. 160 of 1999 (Adj. Sess.). New Rule 80.6(k) is added to provide for contempt proceedings as authorized in the last legislative session. New Rule 80.6(l) is added to provide a specific rule for notice to and appearance by the parents or guardians of minor defendants. The judicial bureau’s jurisdiction has increased over the years to involve more violations committed by minors (e.g., possessing tobacco, .02 alcohol violations, disorderly conduct in schools). Minors as young as seven years of age have appeared in court. Many minors appear with their parents or other guardians, but some hide their copy of the complaint from their parents and appear alone. The consequences for a minor found in violation by the judicial bureau may be more severe than consequences in juvenile court. Points, suspensions, fines, and high insurance premiums follow minors into adulthood, while juvenile delinquency records do not. The rule is intended to serve the welfare of minors by promoting the involvement of parents and other legal guardians without substantially undermining efficiency. The rule applies only if the defendant is a minor at the time that a particular provision is to be applied. Notice to and appearance by parents or guardians are not required after a defendant has reached majority. Under Rule 80.6(l)(1), the clerk is to send a copy of the complaint, or a form providing comparable information, to the parent or legal guardian, if known, otherwise to the generic “Parent or Legal Guardian” at the minor defendant’s address. Paragraph (2) requires notice to the legal guardian to appear at the hearing in a contested case. Paragraph (3) gives the hearing officer the option, if no legal guardian appears, of appointing a guardian ad litem or proceeding without a guardian. If the judgment is adverse to the minor defendant, on a showing of prejudicial adverse effect the hearing officer has discretion to order a further hearing and must appoint a legal guardian at that point. This procedure is intended to be the exclusive means of obtaining a rehearing on the ground of lack of appointment of a guardian. Rule 60(b)(6) remains available as a basis for reopening the matter on other grounds. * Rule 80.6(m) (formerly (l)) defines “officer,” “complaint,” “license,” “hearing officer,” and “judicial bureau clerk” in flexible terms appropriate for all contexts. Rule 80.6(n) (formerly (m)) is amended to clarify the application of certain of the Civil Rules in judicial bureau actions. *Rule 80.6(l)(3) was stricken from the rule by an amendment promulgated in an order of October 26, 2004.

Reporter’s Notes—2003 Amendment: Rule 80.6(d)(3) is amended to conform to the 1995 amendment of Rule 45, which eliminated the separate provision of Rule 45(d) covering deposition subpoenas. See Reporter’s Notes to that amendment and to former D.C.C.R. 80.6(d)(3).

Reporter’s Notes: Rule 80.6 is added in light of the abrogation of the District Court Civil Rules and the resulting applicability of the Vermont Rules of Civil Procedure to District Court civil actions. See Reporter’s Notes to simultaneous amendment of Rule 1. For the prior history of the rule, see Reporter’s Notes to former D.C.C.R. 80.6 and 1994 amendment.