Part 1 GENERAL PROVISIONS
Section 1.1 Definitions
Unless the context requires otherwise, the following
definitions apply throughout the Rules of Practice of the Office of
Professional Regulation:
(A)
Administrative Law Officer: A hearing officer appointed pursuant to
3 V.S.A. §
129(j) to hear contested
cases regarding denials of licensure or disciplinary matters.
(B) Appellate Officer: A hearing officer
appointed pursuant to
3 V.S.A. §
123(e) to hear appeals of
board decisions filed pursuant to
3 V.S.A. §
130a.
(C) Director: Director of the Office of
Professional Regulation, Office of Secretary of State.
(D) Docket Clerk: The Docket Clerk in the
Office of the Director of the Office of Professional Regulation.
(E) Filing (when used as a noun): Any
petition, application, complaint, motion, exhibit, or any other document or
thing of any description which is required or permitted to be filed with a
hearing authority in connection with a pending case.
(F) Hearing authority: The board or
commission regulating a profession or occupation or a hearing officer appointed
by a board or commission; for auctioneers, the Secretary of State or a hearing
officer appointed by the Secretary of State; for professions or occupations
regulated by the Director of the Office of Professional Regulation with
advisors, the administrative law officer appointed by the Secretary of State;
and the appellate officer assigned by the Director of the Office of
Professional Regulation.
(G)
Hearing Officer: A hearing officer appointed by a board pursuant to
3 V.S.A. §
129(f) to whom a case has
been referred.
(H) Office: The
Office of Professional Regulation in the Office of the Secretary of
State.
(I) Order of Notice: An
order issued by a hearing authority listing persons entitled to receive notice
of a proceeding before a hearing authority and copies of all documents filed in
the proceeding.
(J) Party: In a
disciplinary hearing and appeal, the licensee and the State of Vermont,
represented by the Office of the Attorney General or by Special Counsel; in a
license denial hearing before a board or commission, the applicant; in a
license denial hearing before an administrative law officer, the applicant and
the Director; in an appeal from a license denial hearing before a board or
commission, the applicant and the hearing authority; in an appeal from a
license denial hearing before the administrative law officer, the applicant and
the Director.
(K) Person: Any
individual, group, corporation, partnership, firm, association, or other entity
or organization.
(L) Presiding
Officer: Legal counsel authorized by a hearing authority under
3 V.S.A. §
129(g)(3) to preside at
hearings.
(M) Respondent: In a
disciplinary proceeding, the party against whom a specification of charges has
been filed.
Section 1.2
Waiver of Rules
To prevent unnecessary hardship, delay, or injustice, or for
other good cause, a hearing authority may waive the application of a rule upon
such conditions as it may require, unless precluded by rule or by
statute.
Part 2
SCOPE AND CONSTRUCTION OF RULES
Section 2.1
Applicability
These rules shall apply in all proceedings before a hearing
authority.
Section 2.2
Vermont Rules of Civil Procedure (VRCP) and Vermont Rules of Appellate
Procedure (VRAP)
The Vermont Rules of Civil Procedure and the Vermont Rules of
Appellate Procedure, whether specifically adopted herein by reference or
whether made applicable by Rule
2.4 below, shall, subject to
Rule 2.5 below,
apply in the form in which they exist on July 1, 1998 and as they may
thereafter from time to time be amended. References in such rules to any judge
or to any trial court shall be deemed to be a reference to a hearing authority.
References to the clerk of the court shall be deemed to be references to the
Docket Clerk in the Office of the Director of Professional Regulation.
References to trials shall be deemed to be references to hearings. References
to complaints shall be deemed to be references to petitions, applications, or
complaints. References to actions shall be deemed to be references to
proceedings before a hearing authority. Where less than the whole of any rule
of the Vermont Rules of Civil Procedure or the Vermont Rules of Appellate
Procedure is specifically adopted by reference, the provisions of the remainder
thereof shall not apply except by specific order of a hearing authority issued
pursuant to Rule 2.7.
Section
2.3 Conflicting Authority
In the event of any conflict, the provisions of any other rule
or order of a hearing authority shall prevail over these rules and over
otherwise applicable provisions of the Vermont Rules of Civil Procedure or the
Vermont Rules of Appellate Procedure.
Section 2.4 Procedures Not Specifically
Governed
Procedures not specifically governed herein shall be governed
by the Vermont Administrative Procedure Act (APA),
3 V.S.A. §§
801 -
849,
or if not addressed by the APA, by Vermont Rules of Civil Procedure except for
Rules 1, 2, 3, 4, 4.1, 4.2, 4.3, 5, 9, 13, 14, 16.1, 17 through 29, 33 through
41, 45, 47 through 57, 59 (a) through (d) and (f), 62 through 73, 76 through
78, 79(c), and 80 through 86 or the Vermont Rules of Appellate Procedure except
for Rules 1, 2, 3(c) and (f), 5, 6, 7, 8, 9, 12 through 20, 22, 23, 29, 30, 32,
37 through 41, 43, 44, 46 though 49, by any applicable hearing authority rule
or order, or by any applicable statute.
Section 2.5 Construction
These rules shall be liberally construed to secure the just and
timely determination of all issues presented to a hearing
authority.
Section 2.6
Severability
If any of these rules is found by a court of competent
jurisdiction to be illegal or void, the remainder shall be deemed unaffected
and shall continue in full force and effect.
Section 2.7 Repeal of Prior Rules
Rules of practice and any amendments or additions thereto
previously adopted by a hearing authority are hereby repealed, except that with
respect to any proceeding pending on the effective date hereof, a hearing
authority may apply any provision of such prior rules where the failure to do
so would work an injuctice or substantial inconvenience.
Part 3 PROCEDURES GENERALLY
APPLICABLE
Section 3.1 Practice Before a
Hearing authority
(A) Notice of appearance.
Attorneys or other representatives shall file a written notice of appearance
with the Director for any matter in which they are representing a party. The
Director shall notify all parties of the appearance. Except as otherwise
provided by law, a party's attorney or the representative who has failed to
comply with this requirement shall not be entitled to notice or service of any
document in connection with such matter, whether such notice or service is
required to be made by a hearing authority or by a party. A copy of each notice
of appearance shall, on the same day on which it is filed, be served by the
party filing the same upon all persons or parties on whose behalf a notice of
appearance has been filed. A list of such persons and parties will be provided
by the Docket Clerk upon request.
(B) Pro se appearances. Any individual may
appear pro se in his or her own cause. This rule shall in no respect relieve
any person or party from the necessity of compliance with any applicable rule,
law, practice, procedure, or other requirement. Except as provided in Rule 3.
1(D), anyone appearing pro se shall be under all the obligations of an attorney
admitted to practice in this state with respect to the matter in which such
person appears.
(C) Withdrawal of
appearance. An attorney or other representative who has appeared on behalf of a
party may withdraw only upon permission of a hearing authority.
(D) Ex parte communications.
(1) Prohibited communications. Unless
required for the disposition of ex parte matters authorized by law, upon the
filing of a complaint, petition, application, notice of appeal, or other filing
which a hearing authority has treated as the same, no member, employee, or
agent of a hearing authority may communicate, directly or indirectly, in
connection with any issue of fact, with any party or any interested person, or,
in connection with any issue of law, with any party or any employee, agent, or
representative of any party, except with the consent of all parties or upon
notice and opportunity for all parties to participate.
(2) Exceptions. Notwithstanding the above,
members, employees and agents of a hearing authority may communicate with other
members, employees or agents, provided that none of the latter has engaged in
prohibited communications. Members of an investigative committee of a hearing
authority may communicate with any party or any employee, agent, or
representative of any party, or any interested person in connection with any
issue of fact or law.
(3)
Participation in decisions. Unless required for disposition of ex parte matters
authorized by law, any member, employee, or agent of a hearing authority who
has, in connection with a pending, contested case, except with the consent of
all parties or upon notice and opportunity for all parties to participate,
communicated in connection with any issue of fact with any party or interested
person or, in connection with any issue of law, with any party or any employee
agent, or representative of any party, shall not participate or advise in the
decision, recommended decision, or hearing authority review except as a witness
or as counsel in public proceedings.
(4) Improper communications by parties. Any
person or party who, directly or through an employee, agent or representative,
communicates or attempts to communicate with any member, employee or agent of a
hearing authority on any subject so as to cause, or with the intent to cause,
the disqualification of such member, employee or agent from participating in
any manner in any proceeding, may be disqualified from subsequent participation
in the proceeding, may be dismissed as a party to the proceeding, or may be
deemed to have waived any objection to the subsequent decision by the hearing
authority with respect to any matter which is the subject of such
communication.
Section
3.2 Initiation of Proceedings
A proceeding is initiated by filing a complaint, specification
of charges, petition or other application with the Docket Clerk at the Office
of Professional Regulation during normal business hours. The Docket Clerk will
cause the filing which initiates the proceeding to be served on the respondent
or other person or entity entitled to notice by certified mail, return receipt
requested, within five days after such filing. If service cannot be
accomplished by certified mail, the Docket Clerk will make reasonable attempt
to accomplish service by regular mail or by personal service within the state,
if feasible.
Section 3.3
Answer
The respondent must file an answer to the charges with the
Director within 20 days of the date on which the notice of charges was mailed
by the Director. The answer must include:
(A) A response concerning the substance of
each of the numbered specifications in the charges, either admitting or denying
each of the specifications. If the respondent is without knowledge or
information sufficient to form a belief as to the truth of any specification,
the respondent must so state, and this has the effect of a denial. When the
respondent intends in good faith to deny only part of a specification, he or
she must specify so much of it as is true and must deny only the
remainder.
(B) A brief statement of
the legal and factual basis of any defense that the respondent intends to
offer.
A pre-hearing conference or a hearing on the charges shall be
scheduled for a date not more than 60 days after the filing of the
answer.
Section
3.4 Default
If a respondent does not answer a notice of charges within the
time allowed, the allegations of the charges will be treated as proven and
disciplinary action will be taken. Upon a showing of good cause, a hearing
authority may remove a default and schedule a new hearing when requested by the
respondent to do so.
Section
3.5 Signing of Petitions, Motions and Other Pleadings
Every petition, specification of charges, motion or other
pleading shall be signed by at least one representative of record in his or her
individual name, whose address and telephone number shall be stated. Except
when otherwise specifically provided by rule or statute, pleadings need not be
verified or accompanied by affidavit. The signature of a representative
constitutes a certificate by him or her that to the best of the subscriber's
knowledge, information and belief, there are good grounds to support the
pleading and that it is not interposed for purposes of delay.
Section 3.6 Pleadings and Other Filings;
Service, Filing, Form and Amendment
(A)
Service, when required. In addition to any other requirement imposed by law,
every filing shall, on the same day on which it is filed, be served by the
party filing the same upon the other party, unless a hearing authority for good
cause directs otherwise.
(B)
Service, how made. Whenever under these rules service is required to be made on
a party, it shall be made upon the attorney or person appearing pro se whose
appearance has been filed on behalf of such party. In all cases, service may be
made by mailing a copy of the filing, first class postage prepaid, to the
person whose notice of appearance is on file. Service may also be made by
personal delivery or by any other means authorized by the person entitled to
service.
(C) Filing, manner and
significance. Filing shall be accomplished by delivery to the Docket Clerk at
the Office of Professional Regulation or by delivery during the course of a
hearing to a hearing authority and later delivery to the Docket Clerk.
Regardless of the method of delivery employed, filing occurs only upon receipt
by the Docket Clerk or the hearing authority, as the case may be. Such filing
shall constitute a representation by the attorney or pro se representative
signing the same that a copy thereof has been or will be served on the same day
on which it is filed upon the other party on whose behalf a notice of
appearance has been filed.
(D)
Number of copies. Except as otherwise ordered by a hearing authority, all
materials required to be filed shall require an original only.
(E) Form of filings generally. In addition to
the requirements of Vermont Rules of Civil Procedure, Rule 10, all filings
shall be typewritten on paper 8 1/2" x 11" in size. Pages shall be numbered
sequentially. Filings shall be headed by a descriptive title. A hearing
authority or the Docket Clerk may refuse to accept for filing or, after filing,
may at any time reject any filing which fails to conform to the requirements of
this rule, provided, that if no substantial prejudice will occur to any other
party, the filing party shall be afforded a reasonable opportunity to cure the
defect, and such cure, if made, shall be deemed to relate to the original date
of filing.
(F) Amendments. Proposed
amendments to any filing may be made at any time. If unobjected to by the other
party within ten days of filing or at the commencement of any hearing in which
the amended matter is at issue, whichever is earlier, such amendments shall be
deemed effective, except that a hearing authority may at any time dismiss any
proposed amendments which it finds to have the effect of unreasonably delaying
any proceeding or unreasonably adversely affecting the rights of a party. Where
objection is made, amendments shall not be allowed unless a hearing authority
finds (a) that they will not unreasonably delay any proceeding or (b)
unreasonably adversely affect the rights of a party. A hearing authority may
condition the acceptance of any amendment as justice may require. An amendment
which is allowed over objection shall be deemed effective as of the date it is
approved, unless for good cause, a hearing authority orders that it shall be
effective as of a different date. Proposed amendments shall be clearly
identified as such and shall clearly indicate the changes they effect. In the
event an amendment makes a substantial change in a filing, a hearing authority
may order such additional notice to the other party as justice may
require.
(H) Custody. Once it has
been filed, any filing shall remain in the custody of the Docket Clerk at the
Office of Professional Regulation until other lawful disposition shall have
been made at the conclusion of the case or otherwise.
Section 3.7 Notice to Other Persons or
Parties
(A) Orders of notice. A hearing
authority may require a party who seeks the granting or denial of any form of
relief to file a proposed order of notice.
(B) Expenses. The expense of furnishing
notice shall be borne by the party on whose behalf of or for whose benefit such
notice is given.
Section
3.8 Motions
A motion not made orally during the hearing shall be in writing
and, if it raises a substantial issue of law, shall be accompanied by a brief
or memorandum of law. Any opposition to such a motion must be in writing and
must be filed no later than ten days after the motion it opposes unless
otherwise ordered by the hearing authority. Motions made during a hearing may
be required to be put in writing and supported by a brief or memorandum of law
within such period as a hearing authority may direct. A hearing authority may
decline to consider a motion not made within a reasonable time after the issue
first arises with respect to the moving party.
Section 3.9 Time
The provisions of the Vermont Rules of Civil Procedure, Rule
6(a) and 6(b) (Time - Computation and Enlargement), shall apply in proceedings
before a hearing authority.
Section
3.10 Defective Filings
Substantially defective or insufficient filings may be rejected
by a hearing authority, provided that, if it will not unreasonably delay any
proceeding nor unreasonably adversely affect the rights of any party, a hearing
authority shall allow a reasonable opportunity to a party to cure any defect or
insufficiency. A filing which is found to be defective or insufficient shall
not be deemed to have been cured until the date on which the last document is
filed which removes the defect or makes the filing complete. A filing is
substantially insufficient if, inter alia, it fails to include all material
information required by statute or rule.
Section 3.11 Consolidation of Hearings;
Separate Hearings
The provisions of Vermont Rules of Civil Procedure 42
(Consolidation; Separate Trials) shall apply in proceedings before a hearing
authority.
Section 3.12
Prehearing Conferences
In any proceeding, upon reasonable notice to the parties, a
hearing authority or presiding officer may direct the parties to appear before
the presiding officer for a conference to consider the following
matters:
(A) the simplification of
issues,
(B) the necessity or
desirability of amendments to any filing,
(C) the possibility of obtaining admissions
of fact and of documents which will avoid unnecessary proof,
(D) the limitation of the number of expert or
other witnesses,
(E) the
identification of all documents, witnesses, and offers of proof to be presented
at a hearing by any party.
(F) the
establishment of a hearing order and schedule, including deadlines for
completing discovery and filing prehearing motions.
(G) such other matters as may aid in the
disposition of the case.
The presiding officer shall make an order which recites the
action taken at the conference, including reference to any agreements made by
the parties. When entered, such order controls the subsequent course of the
proceeding unless later modified.
Section 3.13 Prefiled Written Testimony
(A) A party may file the direct written
testimony and exhibits of any witness it proposes to call in support of its
direct case or its rebuttal of the case of the other party.
(B) Form of prefiled written testimony.
Prefiled written testimony shall be in question and answer form. Its form and
content shall be such as would entitle the same oral testimony to be admitted
in proceedings before a hearing authority. Such testimony shall be typed and
double-spaced.
Section
3.14 Discovery
After a specification of charges has been filed, a party may
take depositions upon due notice of not less than 10 days to the other party
and without specific authorization by the hearing authority. No other means of
discovery shall be available to parties in proceedings before a hearing
authority.
Section 3.15
Informal Dispositions
(A) Consent orders. If a
respondent agrees to accept a specified disciplinary action, the hearing
authority may accept and issue a consent order based on the accompanying
specification of charges as agreed to by the parties, setting forth the
violation and the action, or may reject the proposed order. If the hearing
authority rejects the proposed order, a hearing will be scheduled. Consent
orders and specification of charges contain the factual and statutory basis for
the action and are permanent public records.
(B) Approval of consent orders. When a
specification of charges and a consent order has been negotiated, they are to
be filed with the Director. When time allows, the Director will send a letter
to the respondent notifying him or her of the time the hearing authority will
consider the order, together with a copy of the proposed order. A copy of this
letter and enclosures will be sent to the complainant. Consideration of the
proposed consent order will be set for a time satisfactory to the hearing
authority. The letter will make clear that the purpose of the review is to
consider approval of the consent order, not to take evidence. Copies of the
letter, proposed order, and charges will be distributed to the hearing
authority.
(1) Continuance. If an evidentiary
hearing has been scheduled, the parties may request a continuance in writing.
The Office will forward such requests to the hearing authority for action. In
unusual circumstances, when time does not allow the above procedures, as much
notice as possible will be given to each party.
(2) Review of consent order. At the hearing
to consider a consent order, both parties will have an opportunity to be heard,
and the hearing authority will have an opportunity to ask questions. The
parties may decide whether to attend the meeting and, if they attend, how
detailed they wish to be in response to questions from the hearing
authority.
(3) Public Record: At
the hearing a public record will be developed which will provide the basis for
the hearing authority's consideration and decision
Section 3.16 Conduct of Hearings
(A) Presiding Officer: A board or commission
may authorize its legal counsel to preside at hearings for the purpose of
making procedural and evidentiary rulings. A presiding officer may administer
oaths and affirmations, rule on offers of proof and receive relevant evidence,
regulate the course of the hearing, convene and conduct prehearing conferences,
dispose of procedural requests and similar matters, and take other action
authorized by these rules consistent with the Vermont Administrative Procedures
Act, 3 V.S.A. §§ 801-849.
(B) Hearing authority expert witnesses. In
its discretion, a hearing authority may call expert witnesses to testify as to
any matter in issue in any proceeding. Except as required to establish the
subject matter and scheduling of the testimony to be offered, a hearing
authority shall not communicate with such expert witnesses unless it is done in
open hearing or upon notice and opportunity for all parties to
participate.
(C) Examination of
witnesses by hearing authority or presiding officer, or both. Any member of the
hearing authority or the presiding officer, or both, may examine witnesses who
testify in any proceeding.
(D)
Rulings by hearing officers. When a matter has been assigned to a hearing
officer, such officer may make rulings of law on procedural matters, on the
admission or exclusion of evidence, and on any other matters necessary to
conclude proceedings before the officer. After the hearing officer has issued
and served a proposal for decision, a party may bring such rulings to a hearing
authority for review by requesting, pursuant to
3 V.S.A. §
811, the opportunity to file exceptions and
to present briefs and oral argument. Exceptions and briefs shall be filed with
the Docket Clerk within 20 days of the date that the hearing officer's proposal
for decision has been filed.
Section
3.17 Evidence
(A) General rule.
Evidentiary matters are governed by
3 V.S.A. §
810.
(B) Procedure with respect to prefiled
written testimony and exhibits. Prefiled written testimony, if admitted into
evidence, shall be included in any transcript of a hearing authority
proceeding. Objections to the admissibility of prefiled testimony or exhibits
shall be filed in writing not more than 30 days after such evidence has been
prefiled and not less than five days before the date on which such evidence is
to be offered.
Section
3.18 Objections and Exceptions
The provisions of Vermont Rules of Civil Procedure 46
(Exceptions Unnecessary) shall apply in proceedings before a hearing
authority.
Section 3.19
Testimony by Telephone or Other Electronic Means
Upon motion of any party and upon a showing of good cause, a
hearing authority may exercise discretion to conduct all or part of a hearing
by telephone, video or other electronic means, if each participant in the
hearing has an opportunity to participate in the entire proceeding and if all
participants and all interested members of the public have an opportunity to
hear and, if appropriate, to see the entire proceeding. In deciding a motion
under this procedure, the hearing authority may consider, among other factors,
the nature of the expected testimony of the witness, the duration of the
testimony, the nature of the exhibits or demonstrative evidence to which the
witness is expected to refer, the unavailability of the witness to testify in
person, the cost of testifying in person, any hardship to the witness by
testifying in person, and the extent to which demeanor and credibility are
significant.
Section 3.20
Subpoenas
Any attorney representing a party may issue subpoenas in
connection with any authorized hearing, investigation or disciplinary
proceeding. The chair of a hearing authority may issue subpoenas ex parte in
connection with any authorized hearing, investigation or disciplinary
proceeding.
Section 3.21
Proposed Findings of Fact
In any case, a hearing authority may require each party to file
proposed findings of fact. Each proposed finding shall deal concisely with a
single fact or with a group of facts so interrelated that they cannot
reasonably be treated separately. Proposed findings shall be consecutively
numbered and shall be in logical sequence. Where the party claims to have
established more than one ultimate fact, proposed findings shall be arranged
into separate groups, appropriately identified as to subject matter. Each
proposed finding shall contain a citation or citations to the specific part or
parts of the record containing the evidence upon which the proposed finding is
based.
Section 3.22 Briefs
Briefs shall address each issue of law which a party desires a
hearing authority to consider. Whenever a brief addresses more than one issue,
it shall be suitably divided into sections which separately address each
issue.
Section 3.23
Sanctions
(A) Proposed findings and briefs. An
attorney or party who fails to submit proposed findings or briefs, after having
been requested by a hearing authority to do so, or who manifestly fails to
conform to the requirements respecting proposed findings or briefs as specified
in Rules 3.21 and
3. 22, may be suspended from further participation in the proceeding or, for
such period of time as a hearing authority finds to be just. In addition, with
respect to any issue of law as to which a party has manifestly failed to
conform to the requirements of Rule 3. 22, such party may be deemed to have
waived any claims of law with respect to such issue, and the claims of the
opposing party with respect thereto may be deemed to be the law of the
case.
(B) Contemptuous or
disruptive behavior. An attorney, party or witness who engages in contemptuous
or disruptive behavior before a hearing authority shall first be warned once by
the hearing authority or presiding officer off the record in a bench conference
with the parties. Thereafter, if the attorney, party or witness persists in
such behavior, he or she shall be warned once on the record by the hearing
authority or presiding officer. Thereafter, if the attorney, party or witness
continues to persist in such behavior, he or she may be suspended from further
participation in the proceeding or, for such period of time as a hearing
authority finds to be just.
Section
3.24 Decision
A hearing authority shall issue a written decision within a
reasonable time of the closing of the record in the case. The Docket Clerk
shall serve a Notice of Decision on the parties and may provide notice to any
other person on request.
Section
3.25 Entry of Order
Upon a decision by a hearing authority granting or denying
relief, the Docket Clerk shall enter the order. A decision is effective only
when entered.
Section 3.26
Stay of Decisions
(A) Requesting a stay. No
decision of a hearing authority is automatically stayed by the filing of an
appeal. A party aggrieved by a final order of a hearing authority may request a
stay by written motion filed with the Director. The request must identify the
order or portion of the order for which a stay is sought and must state in
detail the grounds for the request. The party requesting the stay has the
burden of proof.
(B) Criteria for
evaluating request for a stay. In deciding whether to grant a stay, the hearing
authority considers the likelihood of success on the merits of the requesting
party's apeal, whether the party seeking the stay will suffer irreparable
injury if the stay is not granted, whether the issuance of a stay will
substantially harm other parties, and the location of the best interest of the
public.
Part
4 APPEAL
Section 4.1 Notice of
Appeal
(A) Appeal to Appellate Officer. A
party may appeal a decision of a board or commission (except the Board of Real
Estate Appraisers,
26 V.S.A. §
3323(c)) to an Appellate
Officer by filing with the Docket Clerk a written notice of appeal within 30
days of the date of entry of the order. The notice of appeal shall include a
statement of questions to be determined by the Appellate Officer. Thereafter,
every time a party files a paper, he or she must send a copy to the other
party. The Director shall assign the case to an Appellate Officer. The Office
shall prepare the record of the proceeding and deliver it to the assigned
Appellate Officer.
(B) Appeal to
Washington Superior Court. A party may appeal a decision of an Appellate
Officer or an Administrative Law Officer to the Washington Superior Court by
filing with the Docket Clerk a written notice of appeal within 30 days of the
date of entry of the order, in the manner provided in Vermont Rules of
Appellate Procedure 3 and 4. A check for the court filing fee, made payable to
the Clerk of the Washington Superior Court, must accompany the filing. Any
request for a stay pending appeal should be filed with the Washington Superior
Court.
Section 4.2
Record on Appeal
(A) Composition of record on
appeal. The record on appeal shall consist of the original papers listed in
3 V.S.A. §
809(e), including exhibits,
any transcript of the proceedings, and a certified copy of the docket entries
prepared by the Docket Clerk.
(B)
Transcript of the proceedings; duty of appellant to order; stipulation or order
for abbreviated transcript. If the oral proceedings were tape-recorded and the
hearing lasted no longer than three hours, the record shall include copies of
the tapes. If a stenographic record of the oral proceedings was made, or if the
hearing lasted longer than three hours, the appellant shall file with the
Docket Clerk an order for a complete transcript of the proceedings within ten
days after filing the notice of appeal. Unless the appellant is proceeding in
forma pauperis, the appellant must pay to the Office the estimated cost of
producing a transcript. If the appellant wishes to proceed on appeal in forma
pauperis, the appellant may, within ten days after filing the notice of appeal,
file an application to proceed in forma pauperis, with an affidavit stating
assets and liabilities. Should the Director grant the application, the Office
shall provide for the preparation of a partial or complete transcript as
necessary for the full presentation of the issues to be raised on appeal. In
any case, the Office shall provide the stenographer or transcriber. If the
parties agree to and file a joint stipulation, a partial transcript or an
agreed statement of facts may be substituted for a complete transcript. The
Docket Clerk will notify the parties when the record is complete.
Section 4.3 Appellate Prehearing
Conference
In any appeal, upon 14 days' notice to the parties, the
Appellate Officer may direct the parties to appear for a conference to consider
simplification of the issues, possibility of settlement, and such other matters
as may aid in disposition of the proceedings by the Appellate
Officer.
Section 4.4 Briefs;
Oral Argument
The appellant must submit a brief within 30 days after the date
on the notice that the record is complete. The appellee must file any
responsive brief within 21 days after the appellant's brief is filed. Briefs
shall not exceed 15 double-spaced pages. A case shall be deemed ripe for oral
argument when the responsive brief is filed or when the time for riling the
responsive brief has expired. Oral argument may be scheduled in advance of the
filing of the responsive brief consistent with the requirements of this Rule.
Each party will be allowed 15 minutes for oral argument.
Section 4.5 Taking Additional Evidence on
Appeal
Upon motion and good cause shown, the Appellate Officer may
schedule a hearing to take additional evidence on whether irregularities in
procedure occurred that are not otherwise of record. The hearing on those
irregularities is to be limited to those matters not of record. The Appellate
Officer is not authorized to rehear substantive evidence that otherwise was or
could have been raised before the hearing authority.
Section 4.6 Decision
The Appellate Officer shall issue a written decision within 60
days of final hearing affirming the order of the hearing authority, or
reversing and remanding with instructions to the hearing authority on
requirements to conform the hearing authority's order to the law. The Docket
Clerk shall serve a Notice of Decision on the parties and may provide notice to
any other person on request.
Section
4.7 Interlocutory Appeal
Upon motion of a party, the hearing authority shall permit an
appeal to be taken from any interlocutory order or ruling if the hearing
authority finds that the order or ruling involves a controlling question of law
as to which there is substantial ground for difference of opinion and that an
immediate appeal will materially advance the final disposition of the matter.
If the hearing authority denies the motion, the order denying the motion may
not be appealed until final disposition of the matter by the hearing authority.
If the motion is granted, the moving party must within ten days file a notice
of appeal pursuant to Rule 4.1. For cases within the jurisdiction of the
Appellate Officer, a scheduling order to expedite the hearing of the
interlocutory appeal shall be established. For all other cases, the appeal
shall be filed in the Washington Superior Court.
Section 4.8 Further Appeal
Except in cases involving real estate appraisers, further
appeal may be had to the Washington Superior Court, as authorized by
3 V.S.A. §
130a(c). Within 30 days of
the decision, the appellant must file a notice of appeal with and submit the
appropriate fee to the Docket Clerk who shall prepare the record and deliver it
to the Washington Superior Court. Pursuant to
26 V.S.A. §
3323(c), an individual
aggrieved by a decision of the Board of Real Estate Appraisers may appeal
directly to the superior court of the county in which the person resides. Any
request for a stay pending appeal should be filed with the appropriate superior
court.Statutory Authority:
3 V.S.A. §
831(d)
