In re Richard H. Joyce
No. 2017-440
Supreme Court
May Term, 2018
2018 VT 90
On Appeal from Office of Professional Regulation
NOTICE: This opinion is subject to motions for reargument under
Stephen A. Reynes, Appellate Officer
Richard H. Joyce, Pro Se, Wilmington, Appellant.
Elizabeth A. St. James, Office of Professional Regulation, Montpelier, for Appellee.
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.
¶ 2. Joyce has been a licensed surveyor since 1969. In 2014, Joyce completed a survey of the boundary between two adjoining properties. One of the property owners filed a complaint with the Office of Professional Regulation, Board of Land Surveyors (OPR) on December 5, 2014, regarding Joyce‘s compliance with professional surveying standards. OPR opened an investigation into the complaint and, in October 2015, notified Joyce that, after careful review of the complaint, “the Investigative Team found that the minimum standards [for the practice of the profession] were met.” Accordingly, OPR closed the investigation and did not pursue any charges related to the complaint at that time, though OPR did notify Joyce that “[c]losure [did] not preclude re-opening and reconsideration of the underlying facts should a pattern of practice or administrative deficiencies become apparent from future complaints.”
¶ 3. In June 2016, OPR sent Joyce a letter stating that “[n]ew evidence ha[d] been brought to [its] attention . . . that warrant[ed] further investigation and reconsideration.” OPR did not disclose the nature or origin of the new evidence. In December, OPR sent Joyce a letter notifying him that “[t]he State Prosecuting Attorney ha[d] filed the enclosed charges and ha[d] asked the Office of Professional Regulation to take disciplinary action against
¶ 4. OPR issued a decision on the charges in late July 2017, finding that the State had proven that Joyce violated four provisions governing professional standards for surveyors. OPR fined Joyce $750 and placed a two-year condition on his surveying license, requiring that he complete additional surveying training within 180 days of the entry of the order. The order noted Joyce‘s right to file an appeal with an OPR appellate officer within thirty days of the entry of the order, pursuant to
¶ 5. Joyce subsequently hired an attorney, who filed a notice of appearance and a notice of appeal on Joyce‘s behalf in August 2017. The notice of appeal argued that the complaint against Joyce had been closed in 2015, subject to reconsideration only “should a pattern of practice or administrative deficiencies become apparent from future complaints[,]” and, because OPR‘s 2017 order appeared to contain no “new evidence or administrative deficiencies of the initial decision to close the case,” OPR‘s renewed investigation of the initial complaint against Joyce was therefore “barred by the doctrine of res judicata.” The notice of appeal also argued that, because OPR failed to notify Joyce of new information or changed circumstances that warranted reopening his case, it was estopped from issuing a decision contrary to the one originally closing the case. The notice of appeal included a second document, drafted by Joyce personally, which listed Joyce‘s point-by-point responses to OPR‘s order. This document responded to each paragraph of OPR‘s factual findings and included counterarguments to each of OPR‘s legal conclusions and an analytic response to OPR‘s interpretation of a professional responsibility rule at issue.
¶ 6. In September 2017, OPR sent a letter to Joyce‘s attorney asking that he submit “a statement of questions to be determined by the Appellate Officer[,]” within ten days, as well as make arrangements to obtain either a recording of the June 2017 hearing or a transcript of the hearing.2 The letter noted that the cost of acquiring the transcript would be $440, two-thirds of which was payable at the time the transcript was ordered. Joyce‘s attorney responded by sending a letter to
¶ 7. The State subsequently filed a combined opposition to Joyce‘s motion for a summary ruling and a motion to dismiss Joyce‘s appeal. The State argued that Joyce‘s failure to order a transcript and file a statement of questions or brief constituted critical procedural irregularities requiring dismissal of the appeal. Alternatively, the State noted that “[i]f an appeal is permitted to continue, the State requests that Respondent be required to submit a statement of questions, order a transcript, and file an appellant brief as required by the [Administrative Rules of Practice of the Office of Professional Regulation].” The appellate officer issued an order on October 19, 2017, allotting time for Joyce or his attorney to file a response to the State‘s motion to dismiss. The order further noted that absent such a response, the appellate officer would “decide all pending motions based on the [r]ecord.”
¶ 8. On October 23, 2017, Joyce responded personally to the State‘s motion with, essentially, several pages of factual assertions contesting the factual findings in OPR‘s July 2017 order. Joyce also requested a stay of the $750 penalty pending resolution of the case. On November 6, 2017, Joyce‘s attorney filed a response to the State‘s motion, as well as a motion to withdraw as Joyce‘s counsel. The attorney‘s response was received and docketed on November 8, 2017. In his filing, Joyce‘s attorney reiterated that the appeal presented two legal issues—both raised in the attorney‘s notice of appeal—and that, therefore, a transcript was unnecessary for resolution of the appeal. Neither Joyce nor his attorney filed a statement of questions, ordered a transcript of the June 2017 hearing, or filed a brief.3
¶ 9. In November 2017, the appellate officer issued an order (1) granting Joyce‘s attorney‘s motion to withdraw, (2) granting Joyce‘s request to extend the period for payment of the civil penalty, (3) denying Joyce‘s request to decide the matter “in a summary manner,” and (4) granting the State‘s motion to dismiss the appeal. Joyce appeals from this order.
¶ 10. On appeal, Joyce raises numerous issues regarding the merits of OPR‘s July 2017 decision finding that he violated the standards of professional conduct. Joyce also makes reference to his attorney‘s res judicata argument regarding that decision. But the July 2017 decision is not on appeal here. The decision on appeal did not reach the merits of the July 2017 decision—that is, the OPR appellate officer did not review OPR‘s factual findings or its conclusions of law based on those factual findings. The appellate officer‘s decision turned exclusively on whether Joyce had complied with procedural requirements such that the appellate
¶ 11. Our standard of review in this case is controlled by the nature of the decision on appeal. The appellate officer‘s order did not specifically identify any rule of procedure that permitted dismissal of Joyce‘s action, but that dismissal was premised on Joyce‘s failure to comply with filing requirements, including a deadline imposed by the appellate officer for filing of a statement of questions and initiating a transcript request. We read the appellate officer‘s decision as essentially the kind of dismissal contemplated by
¶ 12. This Court reviews “an agency‘s procedural rulings for abuse of discretion,” including an agency‘s decisions applying judicially adopted rules of procedure and practice, such as the Vermont Rules of Civil Procedure and the Vermont Rules of Appellate Procedure. In re Stowe Cady Hill Solar, LLC, 2018 VT 3, ¶ 17, ___ Vt. ___, 182 A.3d 53. The standard we apply when reviewing for an abuse of discretion remains the same regardless of whether we are reviewing a trial court decision or an agency decision—“we will find an abuse of discretion where an agency has declined to exercise its discretion or has done so on untenable or unreasonable grounds.” Id. In this case, and for the reasons explained below, we hold that the appellate officer did not abuse his discretion in dismissing Joyce‘s appeal.
¶ 13. The appellate officer‘s decision began with
¶ 14. Here, Joyce provided the appellate officer with neither a statement of questions nor a transcript. Thus, according to OPR rules, the record was not complete, and the appellate officer was effectively unable to conduct a review of the proceedings below.
¶ 15. As noted above, a statement of questions is a required component for intra-agency appellate review under OPR rules of practice. Although the OPR rules do not explain the reason that a statement of questions is required, a statement of questions is likewise required for proceedings before the Environmental Division under
¶ 16. A statement of questions is also required for appeals to the superior court from the Probate Division.
¶ 17. An appeal in both the environmental and probate contexts is de novo, rather than on the record as in an appeal before an OPR appellate officer. See
¶ 19. Our conclusion is further supported by the nature of Joyce‘s filings in this Court. His arguments here are directed at the merits of the July 2017 OPR decision, and he disputes both OPR‘s findings of fact and OPR‘s legal conclusions. This suggests that Joyce was raising arguments related to the merits of that decision before the appellate officer, rather than simply arguing that the July 2017 decision was barred by res judicata or estoppel, as Joyce‘s attorney represented. A statement of questions would have served to focus the issues on appeal before the OPR appellate officer such that the appellate officer and the State would have the notice necessary to address the issues presented.
¶ 20. We likewise conclude that the appellate officer did not abuse his discretion by requiring Joyce to make arrangements to complete the record for review by ordering a transcript of the June 2017 hearing. A transcript is not necessary in every case. See
¶ 21. A transcript is necessary for appellate review of issues related to the underlying facts, whether those facts go to the elements of a charge or the procedural course of an action, and under
¶ 22. In part because Joyce did not file a statement of questions, which would have focused the issues on appeal, the appellate officer could not consider the record complete for purposes of the appeal without a transcript. See
¶ 23. The same rationale, coupled with the omission of a statement of questions, applies to the legal questions that Joyce‘s attorney identified in the notice of appeal. Although questions of law can be reviewed without reference to the record below, and thus without a transcript, in this case the issues raised by Joyce‘s attorney fall more accurately within the province of issues of mixed fact and law. Compare Evans, 2014 VT 104, ¶ 13 (reviewing statutory interpretation argument without transcript because issue presented only question of law), with Synnott, 2005 VT 19, ¶ 25 (declining to consider argument that supplemental oral jury instruction was erroneous because, without transcript, Court could not review instruction). Here, Joyce‘s attorney argued that “the legal question presented in this matter is whether [OPR] erred as a matter of law in failing to follow the procedure outlined by the OPR in its closure letter in 2015,” namely that the investigation into the initial complaint against Joyce would not be reopened unless a new complaint or
¶ 24. In the decision dismissing Joyce‘s appeal, the appellate officer concluded that without a transcript the record was unclear regarding whether Joyce had raised the res judicata issue in the June 2017 OPR hearing.5 The appellate officer was correct inasmuch as he concluded that Joyce‘s res judicata argument was not properly presented for appeal, but that conclusion rests on more than simply forfeiture of the argument because the record did not demonstrate that Joyce had presented this argument in OPR‘s June 2017 hearing. Rather, a transcript was necessary in this instance because of the precise nature of the res judicata argument.
¶ 25. Res judicata is an affirmative defense that is typically waived unless raised by the parties. Merrilees v. Treasurer, 159 Vt. 623, 623, 618 A.2d 1314, 1315 (1992) (mem.). The waiver rule is premised on the necessity to provide notice to all parties regarding the issues on appeal, and, accordingly we have permitted exceptions to this general rule where “notice considerations are not implicated.” Id. For example, in Merrilees this Court sua sponte raised the issue of res judicata and requested that the parties brief that issue. We held that, because res judicata requires “[n]o factual development” and the parties were “given an opportunity to fully brief the issue,” this Court could independently raise and decide whether res judicata barred the action directly before the Court. Id. But here, without a statement of questions, neither the appellate officer nor the other party had notice of the precise issues in play. And without a transcript, the precise res judicata argument Joyce‘s attorney raised could not be evaluated.
¶ 26. Joyce‘s attorney appeared to argue that res judicata barred OPR‘s July 2017 decision because that decision did not rest on any new complaints or evidence that would permit OPR, according to its 2015 closure of the initial complaint, to reopen and reconsider that complaint. To that end, Joyce‘s attorney pointed out that the July 2017 decision did not refer to any new complaints or evidence. While not necessarily accepting Joyce‘s argument that the 2015 closure had some preclusive effect, we note that this argument also depends upon a determination of whether there was, in fact, any new complaint or evidence that would permit reopening of the initial complaint. And that determination would have required a review of the transcript of the June 2017 hearing to definitively answer whether there was any new complaint or evidence. Thus, even were we to accept Joyce‘s notion that the 2015 closure had a preclusive effect, without a transcript the appellate officer could not consider the argument presented, even though res judicata can, in other cases, be considered without reference to the record of prior proceedings. The precise argument made here is unlike that raised in Merrilees, which required “[n]o factual development.” 159 Vt. at 623, 618 A.2d at 1315. Joyce‘s counsel raised a fact-dependent res
¶ 27. In his final order dismissing Joyce‘s appeal, the appellate officer wrote that the statement of questions and transcript requirements “are not a matter of form over substance,” rather, “[t]hey are designed and required to see that appellate issues governed through the Office of Professional Regulation are grounded in due process and focused analysis of the facts under law.” Although we note Joyce‘s position as a pro se appellant, the Administrative Rules of Practice state that “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.”
Affirmed.
FOR THE COURT:
Associate Justice