In re Richard H. Joyce
Appeal from Office of Professional Regulation 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,
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." 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
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. 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.
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)