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NO. 161. AN ACT RELATING TO JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS.

(H.30)

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. PURPOSE

It is the intent of the general assembly that this act shall clarify existing law and practice by providing uniform language regarding appeals. The act is not intended to make substantive changes to the law. The act leaves questions such as choice between jury trial or court trial, de novo or on the record appeal, and scope of review to specific statutory provisions or prior practice governing appeals from particular agencies, including rules of court procedure.

Sec. 2. 3 V.S.A. § 815(c) is added to read:

(c) If the final decision of an agency is expressly provided by law to be reviewable in superior court or in the supreme court, such review shall be commenced by filing a notice of appeal pursuant to Rule 74 of the Vermont Rules of Civil Procedure or Rule 13 of the Vermont Rules of Appellate Procedure, as appropriate.

Sec. 3. 6 V.S.A. § 2722a(e) is amended to read:

(e)*[(1)]* Any applicant whose application has been denied shall have the right to *[a]* judicial review of the commissioner's decision in the superior court. *[Such review shall be initiated by serving on the commissioner a notice of appeal and filing such notice of appeal in the superior court of any superior court district in which the locality or market to be served is located, within 30 days after the filing of the denial by the commissioner and notification thereof to the applicant.]*

Sec. 4. 8 V.S.A. § 77 is amended to read:

§ 77. COURT REVIEW

Any person aggrieved and directly affected by an order of the commissioner may appeal *[directly to any court of competent jurisdiction]* to the supreme court except as otherwise expressly provided in this title. The filing of an appeal for review or injunctive relief shall not stay enforcement of an order, but the court may order a stay on such terms as it deems proper. The court may affirm the order of the commissioner, may direct him to take the action withheld, or may reverse or modify the order if it

(1) Was issued pursuant to unconstitutional statutory provisions; or

(2) Was in excess of statutory authority; or

(3) Was issued on unlawful procedure; or

(4) Is not supported by substantial evidence in the record.

Sec. 5. 8 V.S.A. § 3541(e) is amended to read:

(e) Appeals from orders of the commissioner disapproving any such form or withdrawing a previous approval may be taken as provided in *[sections 4660 and 4661]* section 77 of this title.

Sec. 6. 8 V.S.A. § 4114 is amended to read:

§ 4114. JUDICIAL REVIEW

Any party to the proceeding affected by an order of the commissioner shall be entitled to judicial review *[by following the procedure set forth in section 4707 of this title]* in the supreme court.

Sec. 7. 8 V.S.A. § 4161(3) is amended to read:

(3) Any action of the board of directors or the association may be appealed to the commissioner by any member insurer if such appeal is taken within 30 days of the action being appealed. Any final action or order of the commissioner shall be subject to judicial review in *[a court of competent jurisdiction]* the supreme court.

Sec. 8. 8 V.S.A. § 4491 is amended to read:

§ 4491. REVIEW

All decisions and findings of the commissioner of banking, insurance, securities, and health care administration made under the provisions of this chapter shall be subject to review by *[proper proceedings in any court of competent jurisdiction in this state]* appeal to the supreme court.

Sec. 9. 10 V.S.A. § 1024(b) is amended to read:

(b) Any party to the proceeding before the board may appeal from a final order of the board to the superior court of any county in which the proposed project is to be constructed. The appeal shall be filed with the clerk of the *[superior court]* board within thirty days from the date of issuance of notice of the board's action.

Sec. 10. 10 V.S.A. § 6613(e) is amended to read:

(e) A variance or renewal shall not be a right of the applicant or holder thereof but shall be in the discretion of the agency. However, any person adversely affected by a variance or renewal granted by the agency may obtain judicial review thereof *[by a proceeding]* in the *[appropriate]* supreme court.

Sec. 11. 18 V.S.A. § 1655(c) is amended to read:

(c) Any final order entered in any proceeding under subsections (a) and (b) above shall be subject to judicial review in the *[appropriate]* superior court.

Sec. 12. 19 V.S.A. § 740 is amended to read:

§ 740. PETITION

When a person owning or interested in lands through which a highway is laid out, altered, or resurveyed by *[selectmen]* selectboard members, objects to the necessity of taking the land, or is dissatisfied with the laying out, altering or resurveying of the highway, or with the compensation for damages, he or she may *[apply by petition in writing]* appeal, in the manner provided for state agencies subject to the Administrative Procedure Act (3 V.S.A. chapter 25), to the superior court in the same county, or in either county when the highway or bridge is in two counties*[, following the procedures of chapter 5 of this title]*. Any number of aggrieved persons may join in the *[petition]* appeal. The *[petition]*appeal shall be *[brought]* filed within *[twenty]* 30 days after the order of the *[selectmen]* selectboard members on the highway is recorded. If the appeal is taken from the appraisal of damages only, the *[selectmen]* selectboard members may proceed with the work as though no appeal had been taken. Each of the *[petitioners]* appellants shall be entitled to a trial by jury on the question of damages. *[Further appeal may be taken to the supreme court.]*

The words "necessity" and "damages" as used in this section shall have the same definition as set forth in chapter 5 of this title.

Sec. 13. 19 V.S.A. § 741 is amended to read:

§ 741. *[SERVICE OF PETITION;]* APPOINTMENT OF COMMISSIONERS

Sec. 14. 19 V.S.A. § 742 is amended to read:

§ 742. COMMISSIONERS' REPORT; JUDGMENT ON REPORT

The commissioners shall give notice to one or more of the *[selectmen]* selectboard members and to the *[petitioners]* appellants of the time and place where they will examine the area and hear testimony. After completing their inquiries, they shall make a report to the court. The court may accept or reject the report in whole or in part, and by its order or decree may establish, alter, resurvey or discontinue the highway, and may render judgment for the *[petitioners]* appellants for any damages as they have severally sustained. When this allowance is greater than was offered by the *[selectmen]* selectboard members, the court may tax costs for the *[petitioners]* appellants, or for either party, as is just.

Sec. 15. 19 V.S.A. § 743 is amended to read:

§ 743. OPENING OF HIGHWAY STAYED; DAMAGES

When the appeal to the superior court is based on objections to the necessity of taking the land, or on dissatisfaction with the laying out, alteration or resurvey by *[selectmen]* the selectboard members, the opening of the highway shall be stayed until the court renders its decision. The court may fix the time when it shall be opened, as provided in this chapter, and for paying damages awarded when the *[petition]* appeal includes or relates solely to the question of damages.

Sec. 16. 21 V.S.A. § 227 is amended to read:

§ 227. JUDICIAL REVIEW

(a) Any person adversely affected or aggrieved by an order of the review board *[may obtain a review of such order in]* may appeal to any superior court for the county in which the violation is alleged to have occurred or where the employer has its principal office*[, by filing in such court]*. The appeal shall be taken within *[sixty]* 30 days following the issuance of such order *[a written petition praying that the order be modified or set aside. A copy of such petition shall be forthwith transmitted by the clerk of the court to the review board and to the other parties, and thereupon the review board shall file in the court the record in the proceeding. Upon such filing, the court shall have jurisdiction of the proceeding and of the question determined therein, and]*. The court shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter upon the pleadings, testimony, and proceedings set forth in such record a decree affirming, modifying or setting aside in whole or in part, the order of the review board and enforcing the same to the extent that such order is affirmed or modified. The commencement of proceedings under this subsection shall not, unless ordered by the court, operate as a stay of the order of the review board. No objection that has not been urged before the review board shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of the review board with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. If any party shall apply to the court for leaveto adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for failure to adduce such evidence in the hearing before the review board, the court may order such additional evidence to be taken before the review board and to be made a part of the record. The review board may modify its findings as to the facts, or make new findings, by reason of additional evidence so taken and filed, and it shall file such modified or new findings, which findings with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive, and its recommendations, if any, for the modification or setting aside of its original order. Upon the filing of the record with it, the jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the same shall be subject to review by the supreme court. *[Petitions filed]* Judicial review under this subsection shall be *[heard]* considered expeditiously.

(b) The commissioner may also obtain a review or enforcement of any final order of the review board by filing a petition for such relief in the superior court within the jurisdiction of which the alleged violation occurred or in which the employer has its principal office and the provisions of subsection (a) of this section shall govern such proceedings to the extent applicable. If *[no petition for review, as provided in subsection (a) of this section, is filed]* judicial review is not sought within *[sixty]* 30 days after service of the review board's order, the review board's findings of fact and order shall be conclusive in connection with any petition for enforcement which is filed by the commissioner after the expiration of such *[sixty-day]* 30-day period. In any such case, as well as in the case of a noncontested citation or notification by the commissioner, which has become a final order of the review board, the clerk of the court, unless otherwise ordered by the court, shall forthwith enter a decree enforcing the order and shall transmit a copy of such court decree to the commissioner and the employer named in the petition. In any contempt proceeding brought to enforce a *[decree of a court of appeals]* court decree entered pursuant to this subsection or subsection (a) of this section, the court *[of appeals]* may assess the penalties provided in addition to invoking any other available remedies.

Sec. 17. 21 V.S.A. § 396 is amended to read:

§ 396. APPEALS FROM COMMISSIONER'S DECISIONS

(a) Appeals to superior court wherein a civil action between the parties would be triable. Any person aggrieved by any decision of the commissioner may appeal to the superior court*[, within thirty days after the decision has been rendered]*.

(b) Procedure. The court shall direct the record in the matter appealed from to be laid before it, hear the evidence and make such order approving in whole or in part or setting aside in whole or in part the decision appealed from as justice may require, and may refer any matter or issue arising in the proceedings to the commissioner for further consideration. However, in no case shall such an appeal operate as a supersedeas or stay unless the commissioner or the court to which such appeal is taken shall so order.

(c) Certifying record. An order of court to send up the record may be complied with by filing either the original papers or duly certified copies thereof, or of such portions thereof as the order may specify, together with a certified statement of such other facts as show the grounds of the action appealed from.

(d) Hearing. The court may take evidence, or may appoint a referee to take such evidence as it may direct and to report the same with *[his]* findings of fact.

(e) Costs. In any proceedings under this subchapter the court may make such award of costs as may seem equitable and just.

(f) Appeal, supreme court. Appeal from the decision of the superior court may be had to the supreme court.

Sec. 18. 23 V.S.A. § 802(i) is amended to read:

(i) No proof of financial responsibility shall be required, under subdivision 801(a)(3) of this title, and no license shall be suspended under that subdivision, unless the operator whose license or right to operate motor vehicles is subject to suspension has been afforded the opportunity of a hearing to determine whether the operator was, at the time of the accident, injury or damage in question insured against public liability and property damage, in the amounts required under section 801 of this title with respect to proof of financial responsibility. If the operator requests a hearing, and appears at the time and placeprovided, the commissioner or his or her appointed representative shall conduct a hearing, make findings and render a decision. The hearing examiner may consider such evidence as is offered and may consider also the operator and investigating officer report or reports filed in connection with the accident, injury or damages as well as the assumption permitted under subsection (e) of section 801 of this title. If the decision of the hearing examiner finds the operator to be uninsured at the time of the accident, injury or damages, then the person shall be required to provide proof of financial responsibility under this subchapter and, if he or she fails to do so, his or her license or right to operate a motor vehicle shall be suspended. A person found to be uninsured may have the finding reviewed *[under Rule 74 of the Vermont Rules of Civil Procedure]* in the superior court. The hearings provided for shall be conducted in Montpelier. Hearings shall be conducted with a minimum of procedural requirements, so as to provide persons an opportunity to be heard without delay and at reasonable expense to them and to the state.

Sec. 19. 24 V.S.A. § 3212(b) is amended to read:

(b) When a person having an interest in the land is dissatisfied with the damages awarded therefor, *[he]* the person may appeal to the superior court of the county wherein the land lies within ninety days of the recording of the order of the municipality. Any number of persons aggrieved may join in the appeal. *[The summons and complaint shall be served on the clerk of the municipality.]* Each of the appellants shall be entitled to a trial by jury. *[An appeal may be taken to the supreme court.]*

Sec. 19a. 24 V.S.A. § 3633(d) is amended to read:

(d) Municipal ordinances relating to sewage systems, which were approved before July, 1984 under 18 V.S.A. § 613 by the board of health, shall remain in effect and shall be deemed to have been adopted and approved under this section. Municipal ordinances relating to sewage systems which were approved before July 1984 by the commissioner of health, shall remain in effect until either the ordinance has been approved pursuant to this chapter or July 1, *[1998]* 2000, whichever occurs first.

Sec. 20. 30 V.S.A. § 27 is amended to read:

§ 27. REVIEW

The assessment by the board or department of public service of any tax or penalty under the provisions of sections 20 to 25 of this title may be *[reviewed by]* appealed to the Washington superior court*[, on petition filed by the company against the board or department. The petition shall be brought]*. The appeal shall be filed within ninety days after the receipt by the company or its agent of written notice by the board or department of its assessment. *[The petition shall be verified by oath and a citation shall be annexed, signed by a judge or the clerk of the court. If the assessment was made by the board the petition and citation shall be served on the chairperson or clerk of the board. If the assessment was made by the department, the petition and citation shall be served on the commissioner of public service. In each case service shall be completed at least twelve days before the same is returnable.]* Thereupon, appropriate proceedings shall be had and the relief, if any, to which the company may be found entitled may be granted and any taxes, interest or penalties paid, found by the court to be illegally assessed, shall be ordered refunded to the company with interest at six percent per annum from the time of payment, with costs, and judgment entered accordingly.

Sec. 21. 30 V.S.A. § 112 is amended to read:

§ 112. --FINDINGS; DAMS; ASSESSMENT OF DAMAGES; JURY TRIAL

When the board finds:

(1) In the case of dams, that a certificate of public good authorizing the project as herein required, or a license from the federal power commission has been granted; and

(2) That the condemnation of such property or right is necessary in order that the petitioner may render adequate service to the public in the conduct of the business which it is authorized to conduct, and in conducting which it will, according to the laws of this state, be under an obligation to serve the public on reasonable terms, and pursuant to the regulations of the board;

(A) That the condemnation of the property or right will not unduly interfere with the orderly development of the region and scenic preservation.

(3) That the condemnation of such property or right is sought in order that the petitioner may render adequate service to the public in the conduct of such business, it shall adjudge the petitioner entitled to condemn such property or right, shall assess the compensation to be paid therefor, and shall determine the time and manner of such payment. That compensation shall be based upon the value of the property on the day the petition is presented to the board, and shall include as separate elements the value of the property taken, impairment to the value of remaining property or rights of the owner, and consequential damages including but not limited to the damage to the owner's business. Provided, however, if the petitioner or the person or persons owning or interested in such property or right are dissatisfied with the compensation assessed by the board, either the petitioner or such person or persons, may, within thirty days after the order of the board is made, *[apply by petition in writing]* appeal to the superior court of the county within which such property or right, or any part thereof, is situated to have the amount of compensation reassessed and the time and manner of payment redetermined and either party may demand and have a trial by jury. *[Such petition shall be served and returned like a summons.]*

Sec. 21a. 32 V.S.A. § 4461(a) is amended to read:

Sec. 22. 32 V.S.A. § 7783 is amended to read:

§ 7783. APPEALS

Any person aggrieved because of any action or decision of the commissioner under the provisions of this chapter may appeal therefrom to the superior court of the county in which such person resides*[, which appeal shall be accompanied by a citation to the commissioner to appear before such court. Such citation shall be signed by the same authority and such appeal shall be returnable at the same time and served and returned in the same manner as is required in case of a summons in a civil action. The authority issuing the citation shall take from the appellant a bond or recognizance to the state, with surety, to prosecute the appeal to effect and to comply with the orders and decrees of the court in the premises]*. The appellant shall give security, approved by the commissioner, conditioned to pay the tax levied, if it remains unpaid, with interest and costs. Such appeals shall be preferred cases for hearing on the docket of such court. Such court may grant such relief as may be equitable and may order the state treasurer to pay to the aggrieved taxpayer the amount of such relief, with interest at the rate of six per cent perannum. If the appeal shall have been taken without probable cause, the court may tax double or triple costs as the case shall demand. Upon all such appeals which may be denied, costs may be taxed against the appellant at the discretion of the court, but no costs shall be taxed against the state.

Sec. 23. 32 V.S.A. § 9275 is amended to read:

§ 9275. APPEALS

Any person aggrieved by the decision of the commissioner upon petition provided for in section 9274 of this title may, within thirty days after notice thereof from the commissioner, appeal therefrom to the superior court of any county in which such person has a place of business subject to this chapter*[, which appeal shall be accompanied by a citation to the commissioner to appear before such court. Such citation shall be signed by the same authority and such appeal shall be returnable at the same time and served and returned in the same manner as is required in the case of a summons in a civil action. The authority issuing the citation shall take from the appellant a bond or recognizance to the state, with surety, to prosecute the appeal to effect, and to comply with the orders and decrees of a court in the premises]*. The appellant shall give security, approved by the commissioner, conditioned to pay the tax levied, if it remains unpaid, with interest and costs. Such appeals shall be preferred cases for hearing on the docket of such court. Such court may grant such relief as may be equitable and may order the state treasurer to pay to the aggrieved taxpayer the amount of such relief with interest at the rate established pursuant to 32 V.S.A. § 3108. Upon all such appeals which may be denied costs may be taxed against the appellant at the discretion of the court but no costs shall be taxed against the state.

Sec. 24. 32 V.S.A. § 9817 is amended to read:

§ 9817. REVIEW OF COMMISSIONER'S DECISION

(a) Any aggrieved taxpayer may, within thirty days after any decision, order, finding, assessment or action of the commissioner made under this chapter, appeal to the superior court*[, by filing a petition of appeal with the superior court as prescribed by law and on giving]*. The appellant shall give security, approved by the commissioner, conditioned topay the tax levied, if it remains unpaid, with interest and costs, as set forth in subsection (c) of this section.

(b) The appeal provided by this section shall be the exclusive remedy available to any taxpayer for review of a decision of the commissioner determining the liability of the taxpayer for the taxes imposed.

(c) Irrespective of any restrictions on the assessment and collection of deficiencies, the commissioner may assess a deficiency after the expiration of the period specified in subsection (a) of this section, notwithstanding that a *[petition]* notice of appeal regarding the deficiency has been filed by the taxpayer, unless the taxpayer, prior to the time *[his petition]* the notice of appeal is filed, has paid the deficiency, has deposited with the commissioner the amount of the deficiency, or has filed with the commissioner a bond (which may be a jeopardy bond) in the amount of the portion of the deficiency (including interest and other amounts) in respect of which *[the petition or appeal is made]* review is sought and all costs and charges which may accrue against *[him]* the taxpayer in the prosecution of the proceeding, including costs of all appeals, and with surety approved by the superior court, conditioned upon the payment of the deficiency (including interest and other amounts) as finally determined and all costs and charges. If as a result of a waiver of the restrictions on the assessment and collection of a deficiency any part of the amount determined by the commissioner is paid after the filing of the appeal bond, the bond shall, at the request of the taxpayer, be proportionately reduced.

Sec. 25. 9 V.S.A. § 2460(a) is amended to read:

(a) The attorney general or a state's attorney whenever he or she has *[probable cause]* reason to believe any person to be or to have been in violation of section 2453 of this title, or of any rule or regulation made pursuant to section 2453 of this title, may *[upon probable cause]* examine or cause to be examined by any agent or representative designated by him or her for that purpose, any books, records, papers, memoranda and physical objects of whatever nature bearing upon each alleged violation, and may demand written responses under oath to questions bearing upon each alleged violation. The attorney general or state's attorney may require the attendance of such person or of any other person havingknowledge in the premises in the county where such person resides or has a place of business or in Washington county if such person is a nonresident or has no place of business within the state, and may take testimony and require proof material for his or her information, and may administer oaths or take acknowledgment in respect of any book, record, paper or memorandum. The attorney general or a state's attorney shall serve notice of the time, place and cause of such examination or attendance, or notice of the cause of the demand for written responses, at least ten days prior to the date of such examination, personally or by certified mail, upon such person at his or her principal place of business, or, if such place is not known, to his or her last known address. Any book, record, paper, memorandum or other information produced by any person pursuant to this section shall not, unless otherwise ordered by a court of this state for good cause shown, be disclosed to any person other than the authorized agent or representative of the attorney general or a state's attorney or another law enforcement officer engaged in legitimate law enforcement activities, unless with the consent of the person producing the same. This subsection (a) shall not be applicable to any criminal investigation or prosecution brought under the laws of this or any state.

Sec. 26. EFFECTIVE DATE

Sec. 19a shall take effect on July 1, 1998. This section and the remainder of the act shall take effect on January 1, 1999.

Approved: April 29, 1998