Chapter 30 COURTS[1]
Pursuant to G.L. 1956, § 45-2-34, there is established a municipal court in the town.
(Ord. of 8-9-16)
Sec. 30-27. Appointment; term; qualifications of municipal judge.
(a) The court shall be composed of one judge appointed by the council. The judge shall serve until his successor shall be duly appointed.
(b) Pursuant to Charter the appointment shall be for a term of two years, commencing in November of the year between general elections.
(c) The judge shall be a lawyer admitted to practice before the state supreme court, in good standing, and shall have not less than five years' experience in the active practice of law.
(Ord. of 8-9-16)
Sec. 30-28. Witnesses; attendance; subpoenas.
The court shall have the power to issue writs or summonses for witnesses, and compel their attendance, and to punish for contempt by fines or imprisonment. The court may also issue writs of habeas corpus and testificandum, upon continuance of any complaint or proceeding before it, may take recognizance to the state, with sureties in such sum as the court shall deem proper, with the condition to appear before the court and make further answer to such complaint or proceeding, and in the meantime to keep the peace, and, in want thereof, may commit the same to the state adult correctional institutions until such recognizance shall be given, or the parties lawfully discharged therefrom.
(Ord. of 8-9-16)
Cross reference(s)—Summonses, § 30-53; attendance and presence of the defendant, §§ 30-55, 30-61, 30-72; subpoenas, § 30-61.
Sec. 30-29. Municipal court clerk; appointment and duties and records.
(a) Pursuant to section 801 of the Charter, the town clerk shall be the clerk of the municipal court. The town clerk may utilize clerical staff of the town to perform, under the supervision of the town clerk, some or all of the duties of clerk of the municipal court.
(b) In any trial of a violation of the town ordinances excluding minimum housing ordinances, or G.L. § 45-24.3-1, the Rhode Island Housing, Maintenance and Occupancy Code, the clerk shall keep a record of the trial which shall include a copy of the notice of violation, the summon(es) and complaint(s), entries of appearance, motions and/or briefs filed by the parties, any judicial orders issued and the decision of the judge. Such records shall be maintained as a public record and shall constitute the record on appeal. The clerk shall furnish certified copies of the record upon request for which copies the clerk shall charge the same fees as are by law allowed to clerks of the superior court.
(c) The clerk of court shall keep a regular docket of all cases disposed of; shall record the judgments, orders, and sentences of the court; and shall furnish certified copies of such documents when required, for which copies the clerk shall charge the same fees as are by law allowed to clerks of the superior court. The clerk shall keep the office open to the public during such hours as the court shall determine, and shall also serve as magistrate and bail commissioner, setting bail for defendant until the court is in session.
(d) Nothing contained in this section shall prohibit the police department or the town administration or the town clerk from providing the secretarial and administrative assistance necessary for the court to perform its duties and responsibilities.
(e) An electronic record shall be made of the proceedings in the trial or hearing of every action in the municipal court under these provisions, but such record shall not be deemed to be part of the record on appeal. If requested, a copy of the aural recording shall be provided as a "Public Record" under the Access to Public Records act, and reasonable fees may be charged for the electronic or tape media utilized. In the event a typewritten transcription is sought for use in subsequent proceedings, the typing of the transcript and the cost thereof shall be borne by the requesting party.
(Ord. of 8-9-16)
Cross reference(s)—Regarding the Clerk's role under the rules of procedures, see subpoenas and attendance, § 30-61; appeals to the superior court, § 30-70; notice of orders and filing of pleadings and other papers with the court, § 30-76; appearance of attorneys, § 30-77; the calendar of cases, § 30-78.
(a) The municipal court shall have a seal which shall contain such words and device as the council shall adopt and approve.
(b) The judge and municipal court clerk shall have the power to administer oaths and affirmations.
(Ord. of 8-9-16)
Sec. 30-31. Sessions; time; place.
The municipal court shall be considered to be in session at all times, and at such places in the town as the court, or judge holding the court, shall appoint.
(Ord. of 8-9-16)
Cross reference(s)—See place of prosecution and trial, § 30-62.
(a) The council hereby confers on the municipal court original jurisdiction to hear and determine causes involving violations of:
(1) Any ordinance of the town.
(2) Minimum housing ordinances, including any violation of G.L. 1956, § 45-24.3-1, the Rhode Island Housing, Maintenance and Occupancy Code.
(3) Any other jurisdiction conferred by state law.
(b) Any defendant found guilty of any offense, excluding violations of the minimum housing ordinances, or G.L. § 45-24.3-1 et seq., may within seven days of such conviction file an appeal from such conviction to the superior court and be entitled in the latter court to a trial de novo. The appeal may be claimed by filing a written notice of appeal with the clerk of the Municipal Court. The party claiming the appeal shall certify that he/she has sent a copy of the notice of appeal to the opposing party or parties, or if represented by counsel, to their counsel of record. Provided further, however, that any defendant found guilty of any violation of a minimum housing ordinance, or of G.L. § 45-24.3-1 et seq. within seven days of such conviction file an appeal from such conviction to the Second Division of the District Court and be entitled to a trial de novo in accordance with G.L. §§ 8-8-3(a)(4) and 8-8-3.2.
(c) With respect to violations of municipal ordinances dealing with minimum housing, or G.L. § 45-24.3-1 et seq., the council hereby confers upon the municipal court, in furtherance of such jurisdiction, the power to proceed according to equity to:
(1) Restrain, prevent, enjoin, abate, or correct a violation;
(2) Order the repair, vacating, or demolition of any dwelling existing in violation; or
(3) Otherwise compel compliance with all provisions of such ordinances and statutes.
(Ord. of 8-9-16)
Sec. 30-33. Fines; penalties; imprisonment.
The municipal court may impose a sentence not to exceed 30 days in jail and impose a fine not in excess of $500.00, or both, and shall be empowered to punish persons for contempt. Each day on which a violation exists may be deemed to be a separate offence.
(Ord. of 8-9-16)
Cross reference(s)—See imposition of a penalty, § 30-67; defendant's right to presence at imposition of a penalty, § 30-72.
Sec. 30-34. Complaints; warrants; writs.
It shall be lawful for the judge of the court to prescribe and vary the form of all complaints, warrants, writs, or other process as to make the same consistent with the organization, style, and jurisdiction of the court. Such complaints, warrants, writs, and other process shall have the same effect, validity, and extent, and be served, obeyed, enforced, and returned, in the same manner and by the same officers, as if issued from the district courts. They may be served by any constables of the town who are authorized to serve process in civil or criminal cases.
(Ord. of 8-9-16)
(a) The municipal court shall be authorized to impose court costs in the amount which shall be set from time to time by the town council by resolution, and the payment of such costs shall be a part of the sentence.
(b) All payments shall be deposited in the general treasury of the town, and the treasurer shall remit to the state those assessments required by the General Laws.
(Ord. of 8-9-16)
Cross reference(s)—See division 2 for rules of procedure regarding the forms of complaints, warrants, writs, or other process as may be required by the court.
Sec. 30-36. Compensation of municipal court judge and municipal court clerk.
(a) The compensation of the judge of the municipal court shall be set by the council.
(b) The compensation of the clerk of the municipal court shall be set by the council.
(Ord. of 8-9-16)
Sec. 30-37. Acting judge and acting clerk.
(a) In cases of sickness, absence, or other disability or ineligibility of the municipal court clerk the town clerk may appoint an acting clerk, at the same compensation, or at such salary as the council may determine, for the term of such sickness, absence, disability, or ineligibility of the clerk.
(b) An acting municipal court judge or acting municipal court clerk shall perform all duties of the municipal court judge or municipal court clerk, respectively.
(c) In the event of that the municipal court judge is unable to preside, the judge of probate shall preside as the acting municipal court judge pursuant to section 805(b) of the town Charter.
(Ord. of 8-9-16)
Sec. 30-51. Rule 1. Scope and applicability.
These rules govern the procedure in the Tiverton Municipal Court in all matters related to the violation of the Town of Tiverton Code of Ordinances, including minimum housing ordinances of the town and any violation of the provisions of G.L. §§ 45-24.3-1—45-24.3-23 entitled Housing Maintenance and Occupancy Code, Town of Tiverton Zoning Ordinances and the Rhode Island State Building Code, G.L. § 23-27.3-1 et seq. When used in these rules, the term "code" shall refer to the Tiverton Code of Ordinances, the Tiverton Zoning Ordinance, the Housing Maintenance and Occupancy Code and the Rhode Island State Building Code collectively, unless otherwise specified. When used in these rules, the term "court" shall mean the Tiverton Municipal Court.
(Ord. of 8-9-16)
Sec. 30-52. Rule 2. Purpose and construction.
These rules are intended to provide for the just determination of every code violation proceeding to which they apply. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay; they shall also be construed consistent with the fact that they constitute the rules for the adjudication of civil violations of the code.
(Ord. of 8-9-16)
Sec. 30-53. Rule 3. The summons and complaint.
(a) The summons consists of a listing of the code violations alleged and a requirement that the defendant appear in court on the date and time and at the place indicated thereon. The summons shall be on a form prescribed by the judge of the municipal court and shall contain a proof of service of the summons and complaint upon the defendant. A separate summons shall issue for each named defendant. The summons shall be served in the same manner as if served in civil matters in the district courts of the State of Rhode Island.
(b) The summons shall be accompanied by a Town of Tiverton Municipal Court Complaint signed by the appropriate official. The truth and validity of the facts supporting the charge(s) shall be contained in the complaint and shall be sworn to before the Court at the first appearance date.
(c) A complaint which provides the defendant and the court with adequate notice of the offense being charged shall be sufficient if the offense is charged by using the date of the offense and a declaration of the facts giving rise to the offense. The complaint shall also state for each count the official or customary citation of any statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated. An error or an omission in the complaint shall not be grounds for dismissal of the complaint or for reversal of a judgment if the error or omission did not mislead the defendant to his or her prejudice.
(d) The court may permit a complaint to be amended at any time before judgment or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced. With the consent of the defendant, a complaint may be amended at any time before judgment or finding if a different offense is charged if the Court finds such amendment to be in the interests of justice.
(Ord. of 8-9-16)
Sec. 30-54. Rule 4. Joinder of offenses.
Two or more offenses may be charged in the same complaint in a separate count for each offense if the offenses charged are based on the same act or transaction.
(Ord. of 8-9-16)
Sec. 30-55. Rule 5. Appearance.
(a) Procedure. All defendants shall appear before the municipal court judge for appearance on the date and time indicated and at the place indicated on the summons. The town shall be represented by the town solicitor. Appearance shall be conducted in open court and shall consist of reading the complaint to the defendant or stating to the defendant the substance of the violation and calling on the defendant to answer thereto. The municipal court judge shall accept an answer in the form prescribed by Rule 6 of these rules.
(b) Default and/or dismissal. If the defendant or the prosecution shall fail to appear judgment may enter accordingly pursuant to Rule 16.
(Ord. of 8-9-16)
A defendant may answer, "admit" or "deny" to each of the violations listed in the complaint. If a defendant refuses to answer or if the court refuses to accept an admission, the Court shall enter an answer of "deny." If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial.
(Ord. of 8-9-16)
Sec. 30-57. Rule 7. Pleadings and motions.
(a) The filing of pleadings and motions in this court shall follow the practice and procedure of the filing of pleadings and motions in the Rhode Island District Court Rules of Civil Procedure, Rules 7—16, inclusive.
(b) A motion for recusal of the municipal court judge shall be made prior to the date of appearance indicated on the summons and complaint. Failure to file a motion for recusal prior to the date of appearance shall constitute a waiver thereof.
(Ord. of 8-9-16)
Sec. 30-58. Rule 8. Trial together of complaints.
The court may order two or more complaints to be tried together if the offenses could have been joined in a single complaint. The court may order two or more defendants to be tried together if the property which is the subject of the violation is owned by more than one defendant or they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.
(Ord. of 8-9-16)
Sec. 30-59. Rule 9. Depositions.
In cases of extraordinary and manifest necessity, in order to prevent a failure of justice, the court at any time after the filing of the complaint may upon motion of a party order that a witness's testimony be taken by deposition. In such cases, the procedure for the taking of depositions in the Rhode Island District Court as set forth in Rule 27 of the District Court Rules of Civil Procedure shall be followed with all expenses borne by the party movant.
(Ord. of 8-9-16)
Sec. 30-60. Rule 10. Discovery and inspection.
(a) Other books, papers, documents, tangible objects or places. Upon motion of a defendant the court may order the town solicitor to permit the defendant(s) to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof which are within the possession, custody or control of the town, upon a showing of materiality to the preparation of the defendant's defense and that the request is reasonable.
(b) Discovery by the town. If the court grants relief sought by the defendant under subsection (a) of this rule, it may, upon motion of the town condition its order by requiring that the defendant permit the town to inspect and copy or photograph scientific or medical reports, books, papers, documents, tangible objects, or copies or portions thereof, which the defendant intends to produce at the trial and which are within the defendant's possession, custody or control, upon a showing of materiality to the preparation of the town's case and the request is reasonable.
(c) Protective orders. Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted or deferred or make such other order as is appropriate.
(d) Time of motions. A motion or written request under this rule may be made only within 14 days after the first appearance or at such reasonable later time as the court may permit. The motion shall include all relief sought under this rule. A subsequent motion may be made only upon a showing of cause why such motion would be in the interest of justice.
(e) Continuing duty to disclose; failure to comply. If, subsequent to compliance with an order issued pursuant to this rule, and prior to or during trial, a party discovers additional material previously requested or ordered which is subject to discovery or inspection under the rule, the party shall promptly notify the other party's attorney or the court of the existence of the additional material. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems just under the circumstances.
(Ord. of 8-9-16)
Sec. 30-61. Rule 11. Subpoena.
(a) For attendance of witnesses; form; issuance. Every subpoena shall be issued by the clerk of court, shall state the name of the court and the title of the action, and shall command each person to whom it is directed to attend and give testimony at a time and place therein specified.
(b) For production of documentary evidence and of objects. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.
(c) Service. A subpoena may be served by the sheriff, by the sheriff's deputy, by a constable, or by any other person who is not a party and who is not less than 18 years of age. Service of a subpoena shall be made by delivering a copy thereof to the person named and by tendering to the person the fee for one day's attendance and the mileage allowed by law.
(d) Place of service. A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within the State of Rhode Island.
(Ord. of 8-9-16)
Sec. 30-62. Rule 12. Pretrial conference and trial.
A pretrial conference and trial shall be had at the place and time determined by the municipal court judge and the calendar of municipal court dates shall be posted on the Town of Tiverton website with adequate time for the defendant to prepare for any pretrial conference and trial.
(Ord. of 8-9-16)
Sec. 30-63. Rule 13. Inability of municipal court judge to hear case.
In the event of the inability of the judge of the Tiverton Municipal Court to hear and decide a matter within the jurisdiction of the court, and in the absence of the council appointing an acting municipal court judge consistent with section 30-37, the judge of the probate court shall preside as acting municipal court judge.
(Ord. of 8-9-16)
(a) Opening statements. Opening statements shall be permitted; a time limit of not less than five minutes shall be set within the discretion of the municipal court judge.
(b) Evidence—Form and admissibility. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by statute or by these rules. All evidence shall be admitted which is admissible under the statutes of this state, or under the rules of evidence applied in the courts of this state. The competency of a witness to testify shall be determined in like manner.
(c) Closing arguments. Closing arguments shall be permitted; a time limit of not less than five minutes may be set within the discretion of the trial judge.
(Ord. of 8-9-16)
Sec. 30-65. Rule 15. Motion to dismiss.
The court on motion of a defendant or of its own motion shall, at the close of the evidence offered by the town, order the dismissal of one or more offenses charged in the summons if the evidence is insufficient to sustain a judgment of such offense or offenses to a standard of clear and convincing evidence. If a defendant's motion to dismiss is not granted, the defendant may offer evidence without having reserved the right.
(Ord. of 8-9-16)
Sec. 30-66. Rule 16. Judgment.
(a) Burden of proof. The burden of proof shall be on the prosecution to a standard of clear and convincing evidence. Judgment on the general issue shall be in favor of the town or in favor of the defendant.
(b) Default. If a defendant shall fail to appear despite notice having been given, the case may be defaulted against the defendant. If the truth and validity of the allegations on the complaint have been sworn to by the officer issuing same, or if testimony is given providing proof of facts supporting the validity of the summons, and the service of the notice has been established, a default judgment may enter against the defendant.
(c) Dismissal. If the prosecution fails to appear for trial and/or arraignment, the matter may be dismissed.
(Ord. of 8-9-16)
Sec. 30-67. Rule 17. Judgment.
(a) Upon judgment against the defendant(s), penalty shall be imposed without unreasonable delay. Before imposing penalty the court shall afford counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally and ask the defendant if the defendant wishes to make a statement in his or her own behalf and to present any information in mitigation of penalty.
(b) Notification of right to appeal. The court shall advise the defendant of his or her right to appeal to the Newport County Superior Court in the manner prescribed in section [Rule] 20 of these rules.
(c) Judgment. All judgments shall be in writing. A judgment of shall set forth the adjudication, and penalty. If the judgment is in favor of the defendant or the charge is dismissed, judgment shall be entered accordingly. The judgment shall be signed by the judge.
(Ord. of 8-9-16)
Sec. 30-68. Rule 18. Clerical mistakes.
Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders.
(Ord. of 8-9-16)
Sec. 30-69. Rule 19. Relief from judgment or order.
On motion and upon such terms as are just the court may relieve a party or the party's legal representative from a final judgment, order, or proceeding for the following reasons:
(1) Mistake, inadvertence, surprise, or excusable neglect;
(2) Newly discovered evidence;
(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) The judgment is void;
(5) The judgment has been satisfied, released, or discharged or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
(6) Any other reason justifying relief from the operation of the judgment, in whole or in part.
The motion shall be made within a reasonable time, and not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this rule does not affect the finality of a judgment or suspend its operation.
(Ord. of 8-9-16)
Sec. 30-70. Rule 20. Appeals from decisions of the Tiverton Municipal Court.
(a) Any defendant found liable for any code violation as defined herein may, within seven days of judgment file an appeal from the judgment to the superior court and be entitled in the latter to a trial de novo.
(b) Appeal in accordance with this provision shall be made by filing a notice of appeal with the clerk of the Tiverton Municipal Court. Upon receipt of the notice of appeal, the clerk shall forward the record of the proceedings before the Tiverton Municipal Court to the Superior Court for Newport County. The documents, records, pleadings and motions maintained by the clerk of the court in the court file shall comprise the record on appeal.
(c) In forma pauperis. In appropriate cases, a defendant shall be permitted to proceed in forma pauperis.
(Ord. of 8-9-16)
Sec. 30-71. Rule 21. Collection of judgments.
Collection of judgments shall generally follow the course of civil practice in the district court as enumerated in Rule 69 of the District Court Rules of Civil Procedure including execution, supplementary proceedings, the issuance of decree for installment payments, trustee process, and contempt proceedings to the extent applicable.
(Ord. of 8-9-16)
Sec. 30-72. Rule 22. Presence of the defendant.
(a) Right to presence. The defendant has the right to be present at the appearance and at the imposition of penalty, except as otherwise provided by statute or by these rules. The defendant shall be present at every stage of the trial, except that the defendant may be excluded from the proceedings if, after appropriate warning, the defendant persists in conducting himself or herself in a manner so disorderly, disruptive, and disrespectful of the court that the trial cannot be carried on with the defendant in the courtroom.
(b) Waiver of presence. A defendant who is represented by counsel may waive his or her right to be present by filing a written waiver thereof.
(c) Corporate defendants. A corporation shall appear by counsel for all purposes.
(Ord. of 8-9-16)
(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of Court or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period is to be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, a Sunday, nor a holiday.
(b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion:
(1) With or without motion or notice, order the period enlarged if request therefore is made before the expiration of the period originally prescribed or as extended by a previous order, or
(2) Upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect.
(c) For motions-affidavits. A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion, and opposing affidavits may be served not later than one day before the hearing, unless the court permits them to be served at some other time.
(d) Additional time after service by mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him or her and the notice or paper is served upon him or her by mail, one day shall be added to the prescribed period.
(Ord. of 8-9-16)
An application to the court for an order shall be by motion. A motion other than one made during a trial or hearing shall be in writing unless the court permits it to be made orally. It shall state with particularity the grounds upon which it is made and shall set forth the relief or order sought. It may be supported by affidavit. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.
(Ord. of 8-9-16)
Sec. 30-75. Rule 25. Dismissal.
(a) By town solicitor. The town solicitor may dismiss a complaint and the prosecution shall thereupon terminate. The dismissal shall be in writing, either on the customary judgment form or on a separate writing. It shall be dated and signed; the name of the person dismissing the summons shall be printed legibly beneath the signature. A dismissal may not be filed during the trial without the consent of the defendant.
(b) By the court. If a defendant is subjected to unreasonable and prejudicial delay in bringing a complaint to trial, a motion to dismiss may be heard and granted if it is found to be meritorious and in the interests of justice. If the town is subjected to prejudicial delay in bringing a complaint to trial due to the abusive or dilatory actions of a defendant, a motion for the entry of default judgment may be heard and granted if it is found to be meritorious and in the interests of justice.
(Ord. of 8-9-16)
Sec. 30-76. Rule 26. Service and filing of papers.
(a) Service: When required. Written motions other than those which are heard ex parte, written notices and similar papers shall be served upon each of the parties.
(b) Service: How made. Whenever under these rules or by an order of the court service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party himself or herself is ordered by the court. Service upon the attorney or upon a party shall be made in the manner provided in civil actions.
(c) Notice of orders. Immediately upon the entry of an order made on a written motion subsequent to arraignment and which is not issued orally from the bench, the clerk shall mail to each party a notice thereof and shall make a note in the docket of the mailing.
(d) Filing: No proof of service required. All papers required to be served shall be filed with the court either before service or within a reasonable time thereafter. Such filing by a party or party's attorney shall constitute a representation by him or her that a copy of the paper has been or will be served upon each of the other parties as required by subsection (a) of this rule. No further proof of service is required unless an adverse party raises a question of notice. In such instance the affidavit of the person making service shall be prima facie evidence.
(e) Filing with the court defined. The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with him or her, in which event he or she shall note thereon the filing date and forthwith transmit them to the office of the clerk.
(f) Effect of failure to file. If any party to an action fails to file within five days after the service any of the papers required by this rule to be filed, the court, on motion of any party or of its own initiative, may order the papers to be filed forthwith, and if the order be not obeyed, the court may order them to be regarded as stricken and their service to be of no effect.
(Ord. of 8-9-16)
Sec. 30-77. Rule 27. Appearance, withdrawal, and excusal of attorneys.
(a) Appearance. The attorney for a defendant in a code violation action shall forthwith file his or her appearance in writing with the clerk of the court wherein the action is pending.
(b) Withdrawal.
(1) By motion. An attorney who has appeared on behalf of any defendant in a code violation action may not withdraw unless he or she first obtains the consent of the court. All withdrawals shall be upon motion with notice to the defendant and the town solicitor. A motion to withdraw shall not be granted unless the attorney who seeks to withdraw shall append to his or her motion the last known address of his or her client, which shall be the official address to which notices may be sent. A motion to withdraw shall be accompanied by an affidavit setting forth facts showing the military status of the defendant. If it appears that the defendant is in the military service of the United States, as defined in the Soldiers' and Sailors' Civil Relief Act of 1940, and any amendments thereto, the motion shall not be granted unless the defendant consents thereto in writing or another attorney appears of record as counsel at the time of such withdrawal.
(2) By stipulation. Where a defendant for whom an attorney has filed an entry of appearance is desirous of substituting new counsel a stipulation may be entered pursuant to which the first counsel withdraws his or her entry and replacement counsel enters his or her appearance. Such a stipulation shall not be entered where the substitution of counsel shall be cited by the defendant as a justification for delay of proceedings.
(c) Excusal. No attorney shall be excused from attendance except upon application to the municipal court judge, and such excuse from attendance shall be granted on such terms and conditions as the court may set. In case of the sudden illness of an attorney, or the attorney's absence from a hearing for some other imperative and unforeseen cause, the municipal court judge shall take such action, without notice, as shall appear reasonable in the circumstances.
(Ord. of 8-9-16)
Sec. 30-78. Rule 28. Courts and clerks.
(a) The calendar of cases to be heard will be posted at the Tiverton Municipal Court on the day of hearing.
(b) Cancellation of calendars. If a day's calendars are cancelled due to inclement weather or other unforeseen circumstance, all cases on said calendars shall be reassigned to the next day when the court shall be open for business and shall be called at the same time as originally established.
(Ord. of 8-9-16)
Sec. 30-79. Rule 29. Effective date.
These rules shall take effect when approved by the town council after public hearing thereon. They shall govern all code violation proceedings thereafter commenced and so far as just and practicable all proceedings then pending.
(Ord. of 8-9-16)
These rules may be known and cited as the Tiverton Municipal Court Rules of Procedure and may be cited as Tiv. Mun. Ct. R. P.
(Ord. of 8-9-16)
[1]Charter reference(s)—Probate court, § 804; municipal court, § 805.
Cross reference(s)—Administration, ch. 2.
[2]Editor's note(s)—An ordinance of August 9, 2016, amended article II, in its entirety to read as herein set out. Former article II, §§ 30-26—30-37, pertained to similar subject matter, and derived from the Code of 1967, § 25-1; an ordinance of July 25, 2011 and an ordinance of January 27, 2014.