In Re Libby, No. 197-4-04 Wncv (Katz, J., Feb. 10, 2005)

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STATE OF VERMONT                                          SUPERIOR COURT
Washington County, ss.:                              Docket No. 197-4-04 Wncv


In re BRENT LIBBY


                                      Entry

       This is a 3 V.S.A. § 130a(c) appeal from the Office of Professional
Regulation appellate officer’s review of a Real Estate Commission order
suspending Mr. Libby’s real estate broker license based on two instances of
unprofessional conduct. The appellate officer concluded that one ground of
unprofessional conduct was well founded, but reversed the other one.
Impliedly vacating the Commission’s suspension order, the appellate
officer remanded the case to the Commission for reconsideration of the
discipline ordered. Mr. Libby appealed the remand order to this court,
arguing that the appellate officer erred by affirming one of the grounds of
unprofessional conduct, and by concluding that the transcript, despite
“inaudible” sections, is adequate for purposes of review.

       An administrative remand order, such as the one in this case, is
interlocutory in nature unless the only purpose of remand is to enable the
execution of ministerial duties. See Williams v. Worker’s Compensation
Appeal Bd., 781 A.2d 251, 252 (Pa. Commw. Ct. 2001); Federman v.
Board of Appeals of Marblehead, 626 N.E.2d 8, 10 (Mass. App. Ct. 1994).
The remand order in this case requires the Commission to exercise its
discretion in reconsidering the fact of and, if appropriate, the terms of
disciplinary action; these are not ministerial duties.
        Interlocutory orders generally are not ripe for review. Interlocutory
review under Vermont’s Administrative Procedure Act is available only
where “review of the final decision would not provide an adequate
remedy.” 3 V.S.A. § 815(a). “This limitation places upon appellants the
burden of demonstrating that an appeal from a final order will not provide
such a remedy.” Petition of CVPS Corp., 142 Vt. 138, 139 (1982). Review
is inappropriate unless the “parties face the prospect of irreparable injury,
with no practical means of procuring effective relief after the close of the
proceeding . . . .” 2 Charles H. Koch, Jr., Administrative Law and Practice
(2d ed.), § 8.25[1] at 502 (citing Gardner v. Westinghouse Broadcasting
Co., 437 U.S. 478, 480 (1978)). “Infirmities that might lead a court to
engage in interlocutory review include bias of the administrative
decisionmaker, unreasonable delay, improper denial of a hearing, or
improper ex parte contacts.” 2 Charles H. Koch, Jr., supra, § 8.25[3] at 503
(citing In re City of Virginia Beach, 42 F.3d 881, 884 (4th Cir. 1994)).

       Appellant attempts no showing of infirmities in the administrative
record that might warrant interlocutory review. Instead, Appellant claims
that no such showing is necessary, relaying on In re Delozier, 158 Vt. 655
(1992) (mem.) and, separately, 3 V.S.A. § 130a. Delozier is a one
paragraph opinion stating, in its entirety:

               . . . . Appellee’s motion to dismiss is granted. 3 V.S.A.
       § 815(a) provides that appeals from preliminary, procedural
       and intermediate agency actions be heard by any “other
       court . . . expressly provided by law.” 3 V.S.A. § 130(c)
       provides that a party aggrieved by a decision of the appellate
       officer may appeal to the superior court of Washington
       County. Since a court other than the Supreme Court is
       expressly granted authority to hear appeals from decisions of
       the Board of Medical Practice, interlocutory appeals of
       preliminary, procedural or intermediate licensing board
       decisions must follow a similar route.




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Delozier addresses and resolves an appellant’s mistaken choice of court. It
does not support Appellant’s argument that any sort of interlocutory order
under 3 V.S.A. § 130a necessarily will be ripe for review in Washington
Superior Court.

       Appellant also argues that the language and structure of 3 V.S.A. §
130a specifically permits interlocutory review without limitation.
Appellant notes that section 130a(a) permits appeal only from a “final
decision of a board” to the appellate officer, while section 130a(c) permits
appeal from “a decision of the appellate officer” to Washington Superior
Court. Section 130a(c) must be intended to permit appeal from any
nonfinal decision, reasons Appellant, else “final” would appear textually in
section 130a(c) as its does in section 130a(a).

       We believe that 3 V.S.A. § 130a(c) and 3 V.S.A. § 815(a) must be
read congruently. As mentioned above, section 815(a) sites appeals of
contested cases in the Vermont Supreme Court unless a specific statute
places it elsewhere. The purpose of 3 V.S.A. § 130a(c) is to locate appeals
of decisions of professional boards in Washington Superior Court, as
opposed to the Supreme Court. The purpose is not to distinguish finality
requirements between sections 130a(a) and 130a(c). The status of the
reviewability of interlocutory orders is treated fully in 3 V.S.A. § 815(a), as
discussed above. It is not addressed at all in 3 V.S.A. § 130a. Reading
these sections together, we have no doubt that the rules relating to
interlocutory review in 3 V.S.A. § 815(a) apply to appeals taken under 3
V.S.A. § 130a(c).

        Appellants have not established that the appellate officer’s decision
is ripe for review.

       This appeal is dismissed and the matter remanded to the
Commission for further proceedings consistent with the administrative
officer’s decision of November 19, 2003.

    Dated at Montpelier, Vermont, __________________________, 20___.




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    __________________________
                         Judge




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