In re Joyce

• Decision Date: 17 August 2018
• Docket Number: No. 17-440,17-440
• Citation: 197 A.3d 378
• Parties: IN RE Richard H. JOYCE
• Court: Vermont Supreme Court

197 A.3d 378

IN RE Richard H. JOYCE

No. 17-440

Supreme Court of Vermont.

May Term, 2018

August 17, 2018

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.

CARROLL, J.

¶ 1. Richard H. Joyce appeals the decision of an appellate officer within the Office of Professional Regulation dismissing his appeal for failure to file a statement of questions for consideration on appeal and complete the record for appellate review by ordering a transcript. We affirm.

¶ 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 [his surveying] license."¹ Joyce responded to the notice of the charges with a nine-page letter concerning the merits of the case and requesting, among other things, that OPR "[c]onsider [the] letter to be a Motion to close [the] case." A hearing on the charges was held in June 2017.

¶ 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 3 V.S.A. §§ 129(d) and 130a. The order also contained instructions on how to request forms for proceeding in forma pauperis, including a statement that in forma pauperis status would make Joyce eligible to receive a transcript of the June hearing without cost.

¶ 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 OPR stating his client's intention to proceed without filing a brief, and instead rest on the legal argument outlined in the notice of appeal. In this letter, Joyce's attorney requested that the appellate officer "proceed in reviewing this matter in a summary manner based on the filings." Joyce's attorney further noted that a transcript would be unnecessary to the resolution of the case because the appeal presented only questions of law. The letter also explained that Joyce could not afford to pursue the case "given the transcript fees and legal fees," a sentiment which Joyce reiterated in a supplementary document. The OPR appellate officer issued an order treating these two documents "as a Motion to which the State is entitled to file a response."

¶ 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 officer could review OPR's July 2017 merits decision. Thus, the only issues before us in this appeal are whether the OPR appellate officer properly denied Joyce's motion for "review in a summary manner based on the filings" and whether the officer properly granted the State's motion to dismiss for failure to follow procedural requirements. Because these issues go hand in hand, we address them together.

¶ 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 Vermont Rule of Appellate Procedure 42(b), which permits dismissal of "any docketed case in which a party has not complied with a filing deadline." See, e.g., In re B.M., 165 Vt. 194, 196 n.3, 679 A.2d 891, 893 n.3 (1996) (dismissing appeal under Rule 42(b) because "[a]lthough [party] filed a notice of appeal, she did not file a brief or otherwise prosecute her case in this Court"). This rule has been incorporated into the rules of administrative practice, and thus applies to OPR proceedings. Administrative Rules of Practice § 2.4: Procedures Not Specifically Governed, Code of Vt. Rules 04 030 005 [hereinafter § 2.4: Procedures Not Specifically Governed], https://www.lexisnexis.com/hottopics/michie.

¶ 12. This Court reviews "an agency's procedural rulings for abuse of discretion," including an agency's decisions applying judicially adopted rules of...