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Rule 80.6 – Traffic and Municipal Ordinance Bureau Procedures

May 14, 2021 | Civil Procedure, Vermont

(a)Applicability of Rule. This rule applies to proceedings held pursuant to 4 V.S.A., chapter 29, before the judicial bureau or on appeal to the district court.
(b)Information Obtained from Defendant.

(1) An officer issuing a complaint shall make a reasonable inquiry as to the defendant’s mailing address. This may consist of asking the defendant whether the address shown on the defendant’s license is a correct mailing address of the defendant and if it is not, informing the defendant that a correct address is needed. If the defendant is a corporation, the mailing address shall be the address filed with the Vermont secretary of state or Vermont department of motor vehicles. If no such address is available, the mailing address shall be the address on the vehicle registration certificate or accompanying the vehicle’s United States Department of Transportation or Interstate Commerce Commission registration number. In the absence of such documentation, the mailing address shall be the address provided by the appropriate agency or official in the corporation’s home jurisdiction, or any address reasonably calculated to give actual notice to the defendant. The address obtained shall be the address to which all further notices will be mailed, unless the defendant subsequently informs the judicial bureau of another address.
(2) The officer shall also inquire whether the defendant is currently on active duty in the armed forces.
(c)Summons; Complaint; Answer. An action is commenced by filing with the judicial bureau or serving upon the defendant a complaint against a single defendant. If the action is commenced by filing, the complaint shall be served upon the defendant within 30 days. If the action is commenced by service upon the defendant, the complaint shall be filed within 30 days.

(1) The summons and complaint shall be in a form approved by the Supreme Court and distributed by the Court Administrator. They shall be signed by an officer and shall be served by delivery to the defendant in person or by first class mail to the address obtained pursuant to subdivision (b).
(2) If the defendant is a corporation, the complaint shall be served by delivery in person or by first class mail to its registered owner or registered agent or a corporate officer.
(3) A defendant shall file with the judicial bureau an answer within 21 days after service of the summons and complaint upon the defendant.
(4) The Court Administrator shall provide a form for municipalities to indicate those persons authorized to issue municipal complaints under 24 V.S.A. § 1979(c).
(5) Complaints will be filed without prior review by the hearing officer, except as provided in this paragraph.

(A) The hearing officer may review a complaint prior to filing if the complaint displays the following:

(i) omission of signature of the issuing officer;
(ii) omission of statement of conduct causing violation;
(iii) inconsistency between any two of the following: violation code, statute, waiver penalty, and point assessment;
(iv) other omission or inconsistency rendering the complaint defective.
(B) After reviewing a complaint displaying one or more of the omissions or inconsistencies itemized in subparagraph (A) of this paragraph, the hearing officer may void the complaint in a written entry, allow the officer to file an amendment, or accept the complaint for filing as justice requires. If the complaint is accepted for filing, all inconsistencies related to waiver penalties and points shall be resolved in favor of the defendant.
(6) If an officer serves a copy of a complaint upon the defendant and subsequently amends the original complaint without serving a proper amendment upon the defendant, the hearing officer may void the complaint.
(7) If an original complaint is not reasonably legible, the hearing officer shall void the complaint.
(8) The voiding of a complaint pursuant to paragraphs (5)-(7) of this subdivision shall be without prejudice. The judicial bureau clerk shall notify the officer of the reason for the voiding. If the complaint is refiled, it shall be on a new form and shall be served as provided in paragraphs (1) and (2) of this subdivision, except that it shall be sent to the defendant’s last known address. If a complaint voided and refiled as provided in this paragraph is voided a second time for the same reason, the second voiding shall be with prejudice.
(d)Motions; Discovery; Continuances; Subpoenas; Hearings.

(1) No pretrial motions or discovery shall be allowed without permission of the hearing officer.
(2) The judicial bureau clerk shall notify the officer, the state’s attorney if the state’s attorney has entered an appearance, and the defendant, and the defendant’s attorney of the time, date and location of the hearing. The officer’s hearing notice shall be mailed to the officer’s department or agency. Continuances may be granted ex parte or after consultation with the nonmoving party for good cause shown prior to or during the hearing by the hearing officer; if the hearing officer is not available within the time required to make and communicate the decision, the judicial bureau clerk may grant or deny the request for a continuance. Notice of the grant of a continuance shall be sent to the nonmoving party by the judicial bureau clerk.
(3) Subpoenas may be issued pursuant to Rule 45 of these rules.
(4) Rule 6 of the Vermont Rules of Small Claims Procedure shall govern trial procedure.
(5) If the complaint alleges a violation of a municipal ordinance, the officer shall bring to the hearing a certified copy of the complete ordinance in effect at the time of the alleged violation. A photocopy of the certified copy may be admitted in evidence.
(6) If the complaint alleges a violation of a state or federal regulation, the officer shall bring to the hearing an official or published copy of the regulation. A photocopy of any relevant official or published copy may be admitted in evidence.
(7) If a party or a person within the party’s control fails to comply with a subpoena or discovery order, the hearing officer may enforce the subpoena or discovery order against the responsible party by exclusion of evidence, continuance, or dismissal.
(e)Default; Execution on Default Judgment.

(1) If a defendant fails to answer a complaint within 21 days after service, the judicial bureau clerk shall enter a default judgment against the defendant. No motion for default judgment or affidavit of amount due is required.
(2) In those cases which are not subject to dismissal under subdivision (f) of this rule and in which a defendant has answered the complaint but has failed to appear at a duly noticed hearing on the merits, the hearing officer may either proceed with the hearing on the merits or enter a default judgment. No additional notice to defendant shall be required prior to entering the default judgment. If judgment is entered against the defendant based on evidence submitted at trial under this paragraph, execution shall not issue until the judgment has been served on the defendant by first class mail.
(3) Notwithstanding the foregoing, no judgment by default shall be entered until the filing of a declaration by the issuing officer or state’s attorney, under penalty of perjury, setting forth facts showing that the defendant is not a person in military service as defined in the Servicemembers Civil Relief Act, 50 U.S.C.§ 3911(2), except upon order of the hearing officer in accordance with that Act.
(4) Execution shall not issue on a default judgment until it has been served on the defendant by first class mail.
(5) The hearing officer may set aside a default judgment only pursuant to Rule 60 of these rules.
(6) All judicial bureau judgments shall contain a notice of tax setoff pursuant to 32 V.S.A. § 5941.
(f)Dismissal.

(1)Dismissal by the Issuing Officer. Prior to the date of the hearing, the officer may dismiss the complaint with the approval of his or her supervisor, except that, if the complaint is a municipal complaint, the officer may dismiss prior to the date of hearing without supervisor approval. On the date of hearing, the officer may dismiss the complaint with the permission of the hearing officer.
(2)Dismissal by the State’s Attorney or the Municipal Attorney. The state’s attorney or the municipal attorney may dismiss the complaint prior to judgment for the defendant’s failure to answer or prior to the date of hearing.
(3)Dismissal by the Judicial Bureau Clerk. The judicial bureau clerk may dismiss the action if service is not completed within 40 days after filing or the complaint is not filed within 30 days after service.
(4)Dismissal by the Hearing Officer.

(A) The hearing officer shall dismiss the complaint if the officer fails to appear at the hearing, unless the hearing officer or clerk has granted a continuance pursuant to paragraph (2) of subdivision (d).
(B) The hearing officer, after reasonable notice to the officer at the address of the officer’s department or agency, may dismiss any action if there has been no adjudication within two years after filing, unless good cause is shown for continuance.
(C) The hearing officer, after reasonable notice to the officer at the address of the officer’s department or agency and opportunity for hearing, may dismiss any action if the hearing officer concludes that such dismissal will serve the ends of justice and the effective administration of the judicial bureau’s business.
(5) All dismissals under this subdivision shall be with prejudice, except that the issuing officer or state’s or municipal attorney may dismiss a complaint without prejudice in furtherance of a settlement agreement with the defendant.
(g)Admissions.

(1) A person who mails an unsigned or incomplete answer to the judicial bureau accompanied by payment of all or part of the penalty shall be deemed to have entered an admission.
(2) Failure to answer, the entry of an admission by answer and other form of admission of the merits of the complaint shall not be admissible in any civil or criminal proceeding other than a proceeding relating to the validity or fact of a suspension.
(3) Notwithstanding paragraph (2) of this subdivision, the hearing officer may consider the defendant’s record of prior violations in determining the appropriate fine or penalty.
(h)Entry of Judgment.

(1) The hearing officer’s findings and judgment shall not be entered until after they have been delivered or mailed to the parties by first class mail.
(2) During the time for filing a notice of appeal and pending the appeal if a notice is filed, payment of any penalty, restitution, and costs imposed shall be stayed.
(i)Appeal.

(1) Any party entitled thereto by law may appeal to a district court from a decision of the hearing officer by filing with the judicial bureau a notice of appeal in the manner and within the time provided in Rules 3 and 4 of the Vermont Rules of Appellate Procedure, together with the entry fee required 32 V.S.A. § 1431(d). Upon the filing thereof, the judicial bureau clerk shall serve a copy of the notice of appeal upon each party and shall mail a copy of the notice and a copy of the docket entries with the entry fee, if any, to the clerk of the district court in the county in which the complaint was issued. The hearing officer may decide a motion to extend time to file an appeal in accordance with Rule 4 of the Vermont Rules of Appellate Procedure.
(2)Appeal on the Record.

(A) Unless otherwise requested in the defendant’s notice of appeal, the appeal shall be on the record. The record on appeal shall consist of the papers and exhibits filed in the judicial bureau, a certified copy of the docket entries, and the electronic recording of the hearing or the transcript thereof. No pleadings shall be required in the district court. Within 30 days of the filing of the notice of appeal, the judicial bureau clerk shall transmit the papers and exhibits filed to the clerk of the district court in the manner provided in Rule 11(b) of the Vermont Rules of Appellate Procedure. The appeal shall be docketed and the record deemed complete as provided in Rule 12 of the Vermont Rules of Appellate Procedure. If the proceedings in the judicial bureau were not electronically recorded, the appellant shall procure a transcript of the proceedings and cause the record to be completed in the manner provided by Rules 10 and 11 of the Vermont Rules of Appellate Procedure.
(B) After the record has been deemed complete, the district court shall schedule oral argument, unless waived by all parties, and notify the parties. The appeal shall be heard and decided based on the record made in the judicial bureau.
(3)De Novo Appeal. If the defendant requests a de novo review and a jury trial in the notice of appeal, the case shall be tried to a jury; otherwise, the case shall be tried to the district court. To the extent applicable, subdivisions (d), (e), (f) and (g) of this rule shall provide the procedure governing de novo appeals. However, in the discretion of the district court, discovery and pretrial motions may be allowed.
(4) Rule 6(b) of the Vermont Rules of Appellate Procedure governs appeals from the district court.
(5) Foureen days after the entry of judgment in the district court, if no request for permission to appeal to the supreme court has been filed, or five days after permission to appeal has been denied, the clerk shall certify the decision of the district court to the judicial bureau, returning therewith any original document transmitted as part of the record on appeal. Upon receipt of such certificate, the same proceedings shall be had in the judicial bureau as though the decision had been made there.
(j)Pending Criminal Charges. If the officer or a state’s attorney informs the judicial bureau that criminal charges arising from the same evidence as form the basis for civil action will be charged or are pending against the defendant, the judicial bureau shall not schedule the civil action for hearing unless requested to do so by the issuing officer, a state’s attorney or the defendant.
(k)Municipal Fine Contempt Proceedings. Upon motion to commence contempt proceedings filed by a municipality pursuant to 24 V.S.A. § 1981(d), the judicial bureau clerk shall review the payment records and determine whether any portion of the fine remains unpaid. If the fine has been paid in full, the clerk shall deny the motion and notify the municipality that the judgment has been satisfied. If any portion of the fine has not been paid, the clerk shall grant the motion and send the requested notice to the defendant. If the defendant does not satisfy the judgment as required by the notice, the clerk shall notify the district court to commence contempt proceedings.
(l)Legal Guardian of Minor Defendant.

(1)Notice of Filing. If a defendant is under 18 years of age, the clerk, within 14 days after the filing of the complaint, shall deliver to the legal guardian of the defendant a copy of the summons and complaint or shall deliver a notice of the filing on a form provided by the Court Administrator containing a brief description of the alleged violation, the name of the municipality where the alleged violation occurred, the date of the alleged violation, the name of the issuing officer, and the name of that officer’s department or agency. Notice shall be delivered in person or by first class mail to the legal guardian by name if known or, if unknown, by first class mail to “Parent or Legal Guardian of [defendant].” Notice by mail shall be sent to the legal guardian’s last known address or, if no address is known, to the defendant’s last known address. Failure to give notice under this paragraph shall not result in dismissal of the complaint.
(2)Notice of Hearing. If a defendant who is under 18 years of age denies the charge in a complaint, the clerk, in the manner provided in paragraph (1) of this subdivision, shall give the defendant’s legal guardian notice to appear at the hearing and shall give such notice for any subsequent hearings.
(3) [Repealed.]
(m)Definitions. Unless specified to the contrary, the following words whenever used in this rule shall have the following meanings:

(1) “Officer” means the law enforcement officer, municipal attorney, grand juror, or other legally authorized person who issued the complaint.
(2) “Complaint” means traffic complaint, municipal complaint, fish and wildlife complaint, littering and illegal dumping complaint, or other complaint authorized by statute, as the context requires, filed on a form approved by the Court Administrator under 4 V.S.A. § 1105.
(3) “License” means a license, permit, or privilege issued by the department of motor vehicles or the equivalent agency or official in another jurisdiction, or by the department of fish and wildlife, as the context requires.
(4) “Hearing officer” means a person appointed by the Administrative Judge pursuant to 4 V.S.A. § 1104 or temporarily appointed to serve pursuant to 4 V.S.A. § 22.
(5) “Judicial bureau clerk” means the clerk or a designee of the clerk.
(n) Applicability of Civil Rules. The following rules shall not apply to proceedings under this rule: Rules 3 (Commencement of Action), 4-4.3 (Process), 7(a) (Pleadings Allowed; Form of Motions), 8 (General Rules of Pleading), 9 (Pleading Special Matters), 10(b) (Form of Pleadings), 12 (Defenses and Objections), 13 (Counterclaim and Cross-Claim), 14 (Third-Party Practice), 16.1 (Complex Actions), 16.3 (Alternative Dispute Resolution), 18-24 (Joinder and Parties), 40(a)-(d) (Calendar; Continuances), 41 (Dismissal of Actions), 53 (Masters), 55 (Default), 56 (Summary Judgment), 57 (Declaratory Judgment), 62 (Stay), 64 (Replevin), 65 (Injunctions), 65.1 (Security), 66 (Receivers), 67 (Deposit in Court), 68 (Offer of Judgment), 70-76 (Judgments, Process, Appeals), 80.1-80.2 (Mortgage Foreclosure and Naturalization), 80.4 (Habeas Corpus), 80.5 (Civil Suspension for DWI), and 80.7 (Procedures for Immobilization and Forfeiture). The remaining rules do apply, provided that where the court finds that a procedure provided for in those rules would be inconsistent with the summary procedures contemplated by statute, it may order that a different procedure be followed. Rules 38, 39, 47, 48, 49, 50 and 51 shall apply only in the district court, and Rules 26–37 shall apply when permission to undertake discovery has been granted pursuant to paragraph (1) of subdivision (d) or paragraph (3) of subdivision (i) of this rule. In case of a conflict between this rule and another Civil Rule, the provisions of this rule shall govern.

Vt. R. Civ. P. 80.6

Adopted March 6, 2002, eff. July 1, 2002; March 25, 2003, eff. July 1, 2003; Aug. 19, 2004, eff. Jan. 1, 2005; Oct. 26, 2004, eff. Jan. 1, 2005; amended by emergency amendment Jan. 11, 2016, eff. April 1, 2016; amended Sept. 20, 2017, eff. Jan. 1, 2018.

Reporter’s Notes-2018 Amendment

Rules 80.6(c)(3), (e)(1) and (5), and (/)(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.