Kittredge v. State ( 2020 )

Kittredge v. State, No. 565-10-19 Wncv (Tomasi, J., Aug. 3, 2020).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
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STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Washington Unit Docket No. 565-10-19 Wncv
Lauren Kittredge,
Plaintiff
v.
State of Vermont,
Defendant
Opinion and Order on Appeal From the Department of Motor Vehicles
Petitioner Lauren Kittredge seeks review of the Vermont Department of
Motor Vehicles’ (DMV’s) decision, following a hearing, to suspend her right to
operate a motor vehicle. Vt. R. Civ. P. 74. Initially, DMV suspended her license for
15 days and, then, indefinitely. Ms. Kittridge requested a hearing concerning the
suspension. After a hearing before an administrative hearing examiner, the officer
affirmed the suspension concluding that the evidence supported the determination
that Ms. Kittredge was “incompetent” to drive and that her past conduct showed
that her continued operation posed a threat to the general public. 23 V.S.A. §
671(a). The Commissioner of DMV approved the examiner’s ruling. Ms. Kittredge
appealed that determination to this Court.
I. Standard
Ms. Kittredge’s appeal is on the record pursuant to Rule 74. See 23 V.S.A. §
105(b) (“A person aggrieved . . . may have such decision reviewed by the Superior
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Court pursuant to Rule 74 of the Vermont Rules of Civil Procedure.”). The Vermont
Supreme Court has described the nature of Rule 74 review as follows:
Courts presume that the actions of administrative agencies are
correct, valid and reasonable, absent a clear and convincing showing to
the contrary. Therefore, judicial review of agency findings is ordinarily
limited to whether, on the record developed before the agency, there is
any reasonable basis for the finding. Courts must remember that
“(a)dministrative agencies belong to a different branch of government,”
and that “(t)hey are separately created and exercise executive power in
administering legislative authority selectively delegated to them by
statute.”
State Dep’t of Taxes v. Tri-State Indus. Laundries, Inc., 138 Vt. 292, 294 (1980)
(citations omitted).
II. Analysis
The legal framework for suspending a driver’s license is found in 23 V.S.A. §
671(a). It provides:
In his or her discretion, the Commissioner may suspend indefinitely or
for a definite time the license of an operator, or the right of an
unlicensed person to operate a motor vehicle, after opportunity for a
hearing upon not less than 15 days' notice, if the Commissioner has
reason to believe that the holder thereof is a person who is
incompetent to operate a motor vehicle or is operating improperly so as
to endanger the public.
Id.1
The hearing examiner in this proceeding concluded that Ms. Kittredge’s
license to operate should be suspended on both of the grounds listed above: he found
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Similarly, the Commissioner may refuse “to issue a license to any person whenever
he or she is satisfied from information given him or her by credible persons, and
upon investigation, that the person is mentally or physically unfit, or because of his
or her habits, or record as to accidents or convictions, is unsafe to be trusted with
the operation of motor vehicles.” 23 V.S.A. § 603.
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that she was both “incompetent to operate a motor vehicle” and had history of
“improperly operating so as to endanger the public.” Id. Those determinations
were based on the examiner’s determination that Ms. Kittredge had been charged
with multiple instances of driving under the influence of alcohol but had not been
convicted because she had been found “incompetent” to stand trial. In making those
determinations, the examiner relied upon a letter submitted by the Washington
County State’s Attorney, a court document detailing Ms. Kittredge’s criminal
history, and the Information and sworn affidavits prepared by law enforcement in
connection with the Washington County charges. There is no dispute that the
Washington County charges were dismissed at the time of the hearing and that
earlier charges from Rutland County remained pending.
On appeal, Ms. Kittredge maintains that it was improper for the examiner to
rely on hearsay documents to make his ruling. She contends that such evidence is
not of a type reasonably relied upon by persons in the context of their daily affairs.
23 V.S.A. § 810. She also asserts that admitting such evidence denied her due
process because she was unable to “cross-examine” the drafters of the documents.
Additionally, she argues that the Commissioner erred in relying on evidence of
pending criminal cases in violation of 23 V.S.A. § 671(c) & (d). As to incompetency,
she submits that the medical reports admitted below rebut any claim of
incompetence. Lastly, she maintains that the Commissioner was required to order
an examination of her, pursuant to 23 V.S.A. § 636, prior to seeking a suspension of
her license.
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The Commissioner disagrees on all fronts. She asserts that the evidentiary
provisions of Section 810 do not apply to the proceedings involved in this case, that
Ms. Kittredge was provided due process, that it was appropriate to rely on pending
criminal matters under these circumstances, that the evidence submitted is
sufficiently reliable and convincing to support the Commissioner’s decision, and
that the provisions of Section 636 are discretionary and do not limit the ability of
the Commissioner to take affirmative action under Section 671 where warranted by
the evidence.
The Court makes the following determinations.
First, the Court disagrees with Ms. Kittredge’s contention that the
Commissioner is required to proceed initially under the examination procedures of
Section 636 anytime the Commissioner believes a driver is incompetent or poses a
danger to the travelling public. The plain language of Section 636 is discretionary
and optional. It indicates that the Commissioner “may” seek a “special
examination” of a questionable driver, and, “If” the Commissioner does, it describes
the types of examinations that may be required. Nothing in the language suggests
that it is mandatory and nothing in Section 671 demands that a suspension
determination must be made pursuant to an examination performed under Section
636.
The Court concludes that suspensions under Section 671 may proceed based
on evidence obtained by the Commissioner without first requiring an examination
under Section 636. That conclusion is supported by the language of the statute and
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by the interpretation of the Commissioner who is charged with enforcement of the
law. See Agency of Nat. Res. v. Supeno, 2018 VT 30, ¶ 23, 207 Vt. 108, 116–17 (if
statute is ambiguous or silent, courts “will defer to agency interpretation of a
statute within its area of expertise as long as it represents a permissible
construction of the statute” (internal quotations omitted)).
Second, the Court agrees with the Commissioner that the Rules of Evidence
are not applicable in these proceedings. 3 V.S.A. § 816(b) makes clear that hearings
of the type involved in this action are not subject to the “contested case” evidentiary
provisions set out in 3 V.S.A. § 810. See 23 V.S.A. § 105(a) (describing hearings
before the Commissioner). Accordingly, the Commissioner could rely upon the
documents submitted below.
Third, the Court disagrees with Ms. Kittredge that admitting evidence from
the Washington County State’s Attorney and of her criminal history records denied
her due process because she could not cross-examine the sources. Due process
requires notice and a meaningful opportunity to be heard. See In re Miller, 2009 VT
112, ¶ 9, 186 Vt. 505, 512. Ms. Kittredge had that here. She received notice of the
hearing, was represented by counsel, had the opportunity to call witnesses if she
wished, testified on her own behalf and had the chance to challenge the evidence
through that testimony, and submitted her own medical evidence. No more is
required to satisfy due process.
Fourth, Ms. Kittredge gets more traction with her objections to the
Commissioner’s reliance upon, at least, the criminal records from the Rutland
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Superior Court. It is undisputed that those criminal proceedings remained pending
at the time of the hearing. A review of the examiner’s decision shows that he relied,
in part, on those records in making his assessment both as to incompetence and
dangerousness.2 Section 671(c), however, states:
The Commissioner shall not suspend the license of an operator, or
the right of an unlicensed person to operate a motor vehicle, while
a prosecution for an offense under this title is pending against such
person, unless he or she finds upon full reports submitted to him or
her by an enforcement officer or motor vehicle inspector that the
safety of the public will be imperiled by permitting such operator
or such unlicensed person to operate a motor vehicle, or that such
person is seeking to delay the prosecution, but if he or she so finds,
he or she may suspend such license or right pending a final
disposition of the prosecution.
23 V.S.A. § 671(c).
While the examiner may have been able to make the predicate findings
needed for admission under Section 671(c), that provision was not expressly
discussed in the decision below. As a result, the examiner did not make the specific
findings necessary to support admission of the Rutland Superior Court records
under that law.
Additionally, though given brief discussion on appeal by both sides, neither
the examiner’s decision nor the parties’ briefs fully address how to interpret Section
671(d) or its relationship to Section 671(c). Section 671(d) provides that: “The
Commissioner shall not suspend the license of an operator, or the right of an
unlicensed person to operate a motor vehicle, for any cause which has constituted
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The Court agrees with the Commissioner that either statutory ground alone would
be sufficient support suspension.
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the subject matter of a prosecution in which the conviction of such person has not
been obtained.” Id. § 671(c). While the Court could imagine a number of possible
interpretations of that provision, those options have not been developed or explored
in this record. Indeed, one interpretation of the provision might bar consideration
of any pending or dismissed criminal actions.
Given the Commissioner’s reliance on the Rutland materials but the lack of
findings consistent with Section 671(c), the Court cannot determine whether the
Commissioner would have made such findings or, if not, whether her decision would
have been the same without such evidence. Nor can the Court determine, without
an initial interpretive ruling from the Commissioner, followed by full briefing, the
proper interpretation and scope of Section 671(d).
Where a lower tribunal has not provided sufficient findings of fact or legal
analysis, the Court retains authority to remand to an administrative body for
additional proceedings and findings. See, e.g., Town of Victory v. State, 2004 VT
110, ¶ 24, 177 Vt. 383, 393 (“where court found property valuation methodology
“fundamentally flawed,” court “should have remanded the matter back to PVR to
determine the valuation anew after correcting the flaws the court found.”);
Conservation Law Foundation v. Burke, 162 Vt. 115, 128 (1993) (noting that
insufficient record for agency action typically warrants remand). The Court will
follow that course in this case.
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Conclusion
For the foregoing reasons, the hearing examiner’s decision is vacated, and
this case is remanded for a new decision consistent with this opinion.
Dated this __ day of July 2020 at Montpelier, Vermont.
_____________________________
Timothy B. Tomasi
Superior Court Judge
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