Order Promulgating Amendments to Administrative Order No. 9, Permanent Rules Governing Establishment and Operation of the Professional Responsibility Program

This Order was promulgated on November 2, 2020; effective February 1, 2021.

Vermont’s Professional Responsibility Program has long focused on prevention and education as much as on disciplinary prosecution. Assisting attorneys to achieve professional competence is as critical to an effective system of attorney regulation as investigating and prosecuting violations of the Rules of Professional Conduct. Proactive regulation serves to protect the public and instill confidence in the profession while promoting professionalism and civility.

The amendments to A.O. 9 establish a Bar Assistance Program within the purview of the Professional Responsibility Board. The program will continue to provide guidance and educational programs on “traditional” legal ethics and professional responsibility. In addition, the Bar Assistance Program will assist by:

  • developing programs to educate judges, lawyers, legal professionals, law students, and the public on issues related to professional competence, professional responsibility, legal ethics, law practice management, and behavioral health issues that impact the practice of law;
  • developing programs that promote lawyer wellness and educate judges, lawyers, legal professionals, and law students on issues related to the signs, symptoms, causes, and prevention of behavioral health issues that affect professional competence and impact the practice of law; and
  • helping impaired lawyers and judges to begin and continue recovery.

The amendment assigns Bar Counsel with the responsibility for operating the Bar Assistance Program. Although Bar Counsel will continue to respond to ethics inquires, Bar Counsel will not have any role in screening formal disciplinary complaints. The amendment assigns this task to Screening Counsel. The proposed rules contain a confidentiality provision, specifying that information related to the operation of the Bar Assistance Program is confidential except for a limited list of exceptions.

 

Order Promulgating Amendments to Administrative Order No. 49

This Order was promulgated on November 2, 2020, effective immediately.

This order further amends A.O. 49, which declared a Judicial Emergency on March 16, 2020, in response to the COVID-19 pandemic.

The amendment lifts the ban on evidentiary hearings for Boards and Committees of the Supreme Court. Under the revised language, Boards and Panels can hold evidentiary hearings subject to the availability of adequate staffing and resources. The amendment directs that hearings should be conducted by remote video or audio technology to the maximum extent possible. The Boards or Panels may preside remotely and require participants to participate or testify remotely. Any objection to the use of remote audio or video technology will be evaluated by the Board or Panel using the standards in Vermont Rule of Civil Procedure 43.1. If the Board or Panel concludes that it is necessary to preside in person or have some or all participants in person, the protocols for entering judiciary buildings, including screening and social distancing, must be followed.

The full Order and other updates regarding the Coronavirus Disease 2019 (COVID-19) and court operations are available here.

 

Order Promulgating Amendments to Rules 26(c) and 34(b) of the Vermont Rules of Civil Procedure

This Order was promulgated on October 6, 2020; effective December 7, 2020.

The amendment to Rule 26(c)(2), regarding protective orders, adds the phrase, “for the discovery or disclosure,” for uniformity with the language of Federal Rule 26(c)(1)(B). Although, unlike the Federal Rule, disclosure is not mandatory under V.R.C.P. 26, the term is included because a scheduling order could require a disclosure.

The amendment to Rule 34(b) adds language from F.R.C.P. 34(b)(2)(B) permitting the production of copies of requested material, rather than their inspection. The language was added to the Federal Rule in 2015 “to reflect the common practice.” The amendment departs from the Federal Rule by providing that the requesting party may obtain inspection of the originals on a showing of “a reasonable need”—for example, a legibility issue not resolvable in a copy.

 

Order Promulgating Amendments to Administrative Order No. 49

This Order was promulgated on October 5, 2020, effective immediately.

Paragraph 3 of A.O. 49 is amended to delete language that had suspended jury trials in criminal cases until at least September 1, 2020.  Civil jury trials remain suspended until at least January 1, 2021.  Although there is no current suspension in effect for criminal jury trials, resumption of trials will not happen simultaneously in all areas of the state.  The Judiciary is taking steps to prepare courthouses and courtrooms to maintain the safety of court staff, jurors, and trial participants.  In addition, the Judiciary is undertaking a public-education campaign to communicate to prospective jurors and the public the steps that are being taken to safely resume jury trials.

 

Order Promulgating Amendments to Rule 6(b)(5) of the Vermont Rules for Public Access to Court Records

This Order was promulgated on September 14, 2020; effective November 16, 2020.

Rule 6(b)(5) is amended to conform the rule to statutory amendments regarding expungement and sealing of criminal-history record information in cases where a judicial officer has found no probable cause for some, but not all, of the charges brought in a single information by the prosecuting attorney. Per 2019, No. 32, 13 V.S.A. § 7603(a)(1)(A) now provides that unless either party objects in the interests of justice, the court shall issue an order sealing the criminal history record related to the citation or arrest of a person within 60 days after the final disposition of the case if the court does not make a determination of probable cause at the time of arraignment. This amendment is consistent with Vermont Rule for Public Access to Court Records 6(b)(5) and its long-standing predecessor Rule 6(b)(24). However, 13 V.S.A. § 7606(c)(1) and (2) now provide that the court shall remove an expunged offense from any accessible database that it maintains, but that until all charges on a docket are expunged, the case file shall remain publicly accessible.  The present amendment accordingly states that until all charges on a docket are expunged, the case file shall remain publicly accessible.

 

Order Promulgating Amendments to Administrative Order No. 49

This Order was promulgated on August 20, 2020, effective immediately.

This order further amends A.O. 49, which declared a Judicial Emergency on March 16, 2020, in response to the COVID-19 pandemic.

Paragraph 2 of A.O. 49 is amended to extend the judicial emergency to January 1, 2021 in recognition of the fact that the continuing and dynamic nature of the pandemic will continue to impact court operations and to require ongoing changes to court operations and rules.

The order also amends ¶  7, regarding access to court buildings, to allow entry to individuals participating in proceedings other than hearings, for example case manager conferences.

Appendix A referred to in ¶ 21 of A.O. 49, which concerns compliance with the Federal CARES Act in eviction actions, is amended to clarify that the required notice to vacate must give thirty days of notice.

 

Order Promulgating Administrative Order No. 50

This Order was promulgated on August 7, 2020; effective October 1, 2020.

Administrative Order No. 50 creates a pilot project that is a result of a joint effort between the Judiciary and the Office of Child Support (OCS) to more efficiently provide service to defendants in cases filed where OCS is providing services under Title IV-D of the federal Social Security Act, which established a Child Support Enforcement Program.  See 33 V.S.A. § 4101(a) (designating OCS as agency responsible for Title IV-D). In cases in Windham and Windsor Units, where efiling has been implemented, OCS will be able to effect service.  Administrative Order 50 revises provisions of V.R.F.P. 4.1(a)(2) to implement this pilot project and allows service by email under specified conditions.

 

Order Promulgating Amendments to Administrative Order No. 49

This Order was promulgated on July 23, 2020, effective immediately.

This order further amends A.O. 49, which declared a Judicial Emergency on March 16, 2020, in response to the COVID-19 pandemic.

The July 23 amendments add ¶¶ 21 and 22 to establish special pleading requirements for eviction and foreclosure proceedings potentially affected by the federal CARES Act, Pub. L. No. 116-136. That Act provides specific requirements for evictions for nonpayment from, and foreclosures of, properties financed by federally backed loans or participating in certain federal housing programs.

Paragraph 21 requires that in any eviction action of a tenant in residential housing commenced on or after March 27, 2020, the effective date of the CARES Act, the plaintiff must attach to the complaint a certificate that either the Act does not apply to the leased property or that the plaintiff has complied with the applicable provisions of the Act, specifically § 4024, codified at 15 U.S.C. § 9058. A form for the plaintiff’s certification is attached as Appendix A and certifications must be in substantially this form.

Similar provisions of ¶ 22 provide, for actions for residential foreclosure filed between March 27, 2020, and December 31, 2020, that the plaintiff must certify compliance with applicable provisions of the CARES Act that require the lender to grant up to 360 days of forbearance on request of the borrower and of federal regulations that require the lender to advise the borrower of this right. Paragraph 22(c) requires the plaintiff’s certification to be in substantially the form as Appendix B. The form requires that, subject to perjury or other sanctions, the lender either state that the CARES Act does not apply because the subject mortgage does not secure a federally backed loan, or that if it does, the lender has advised the borrower of the opportunity to request forbearance and that the borrower has either not responded to or declined the offer.

Both ¶ 21 and ¶ 22 have a similar justification. In both eviction and foreclosure proceedings, the court must be informed as to whether the CARES Act applies. The information necessary to make that determination is not readily accessible to the individual tenant or homeowner. Plaintiff landlords and lenders have both the need for this information in their operations and the capacity to acquire and present it with relatively little effort.

The July 23 amendment also clarifies that victims of crimes and victim advocates are among the individuals allowed to enter courthouses for the purpose of attending hearings in the relevant cases.

The July 23 amendment also modifies the MCLE requirements for continuing legal education for the 2019-2021 reporting cycle to account for the ongoing limitations on in-person gatherings because of the COVID pandemic.

 

Order Promulgating Amendments to Administrative Order No. 49

This Order was promulgated on July 17, 2020, effective immediately.

This order further amends A.O. 49, which declared a Judicial Emergency on March 16, 2020, in response to the COVID-19 pandemic.

The order amends ¶ 6(d) regarding email filings in the Supreme Court to eliminate any requirement that multiple paper briefs be filed at the conclusion of the judicial emergency and instead requires that one set of briefs and printed cases be filed within a week of the electronic filing. The Court retains its discretion to, by order, require parties to file additional paper copies of briefs and printed cases.

The order also amends ¶ 18 regarding the July 2020 bar examination. The in-person bar exam originally scheduled for July 2020 and rescheduled to September 2020 is cancelled. The order authorizes the Board of Bar Examiners to conduct and grade a remote bar examination in the fall of 2020. Applicants who were registered and authorized to sit for the July 2020 examination will be automatically registered for the remote examination. Registered applicants who choose not to take the remote exam may receive a refund or choose to register to sit for the February 2021 exam. Registered applicants choosing to take the exam in February 2021 will be permitted to continue to practice as a legal intern. The order also authorizes the Board to enter agreements with other states so that scores will be portable.

 

Emergency Order Amending Rules 3(b) and 4 of the 2020 Vermont Rules for Electronic Filing

This Order was promulgated on July 15, 2020; effective immediately.

The emergency amendment to Rule 3(b)(1) clarifies that government agencies, which are required to submit reports and other case documents such as Department of Corrections (presentence investigation reports) and Department for Children and families (disposition reports) and law enforcement entities must efile and are not excepted from efiling as self-represented litigants.

New paragraph 3(b)(4) is added to clarify that nonelectronic filing may be permitted by the court for documents such as a handwritten or edited stipulations, agreements, or other case documents that are created or finalized by parties and/or counsel who are present at court premises for related proceedings, including proceedings such as scheduled case-manager conferences.

The emergency amendment to Rule 4, subdivision (a) conforms the text of the rule to actual practice in the Odyssey efiling system.  In Odyssey, in contrast to an Independent (self-represented) User, a “Firm” registers, which includes solo practitioners, as well as government agencies. The Firm Administrator authorizes access for all user accounts in that firm.

The amended language in Rule 4(b)(4) addresses how others inside a firm may be authorized to file and view on an attorney’s behalf.

Rule 4(c) is amended to further clarify the process to secure elevated access to case documents not publicly accessible via the internet. Registration in the efiling system provides access to documents filed by the efiler. To view other documents in the case, including those filed by another party, the filer must register with the public access portal, and receive authorization. This is a one-time process for each portal user, which provides ongoing access for all subsequent cases in which the user is involved. See also V.R.P.A.C.R. 5 (governing specific rights of access by attorneys, parties, and others, to case records that are not otherwise publicly accessible).

Comments on these emergency amendments should be sent by September 15, 2020, to Hon. John A. Dooley (Ret.), Chair of the Special Advisory Committee on Rules for Electronic Filing, at the following address:

Honorable John A. Dooley, (Ret.), Chair
John.Dooley@vermont.gov

 

Promulgation Order Amending V.R.F.P. 4.3(b)

This Order was promulgated on July 13, 2020; effective September 14, 2020.

The amendment to Rule 4.3(b) deletes former paragraph (1) providing for a motion by a nonparty for relief from a parentage judgment. The amendment also deletes references to that motion in the caption and first sentence of subdivision (b), renumbers the amended first sentence as paragraph (1), and deletes the now superfluous caption of paragraph (2).

Former Rule 4.3(b)(1) was added by amendment in 2017 as a narrow response to the concern raised by the Supreme Court in Columbia v. Lawton, 2013 VT 2, 193 Vt. 165, 71 A.3d 1218, that existing law, 15 V.S.A, § 302(a), prohibited such a nonparty action in the absence of a constitutional claim. See Reporter’s Notes to 2017 Amendment. Subsequently, the Legislature enacted the Vermont Parentage Act, 15C V.S.A. §§ 101-809, and repealed the prior statute involved in Columbia. 2017, No 162 (Adj. Sess.), §§ 1, 2. The Act was effective July 1, 2018, § 6, and, per § 5, in certain proceedings before that date. The Vermont Parentage Act is a comprehensive measure, setting forth procedural provisions and means of establishing parentage, and providing requirements of standing and time limits for proceedings by nonparties challenging adjudications, acknowledgements, and presumptions of parentage. Essentially, the Act renders obsolete former Rule 4.3(b)(1).

 

Order Promulgating Amendments to Administrative Order No. 49

This Order was promulgated on June 19, 2020.

This order further amends A.O. 49, which declared a Judicial Emergency on March 16, 2020, in response to the COVID-19 pandemic.

The order amends the introductory language in ¶ 1 to respond to the evolving restrictions in the Governor’s Executive Order regarding assembling in groups and social distancing.

The order adds ¶ 5(c) to encourage the use of remote hearings when possible based on the available technology, participant access to remote participation, the nature of the hearing, and restrictions in applicable rules.

The order amends ¶7. Paragraph (b) is amended to eliminate the specific screening questions and instead provide the Court Administrator with authority to establish screening protocols. Paragraph 7(c), regarding the requirement to wear masks, is amended to give the Court Administrator authority to establish policies and protocols for exceptions to the general rule. Pursuant to that authority, the State Court Administrator has issued contemporaneously with the Court’s amendment an Administrative Directive addressed to “Health Screening and Safety Protocols for all Vermont Courthouses and Judicial Facilities.”

Finally, new ¶ 20 is added to direct that priority be given to juvenile cases and cases where defendants are detained pretrial.

 

Promulgation Order Amending V.R.P.P. 77(e)

This Order was promulgated on June 12, 2020; effective August 18, 2020.

The amendment to Rule 77(e) deletes paragraphs (1)-(5) and instead incorporates the amended Vermont Rules for Public Access to Court Records, promulgated effective July 1, 2019, as the source of exceptions to the general rule of public access to probate division records. The Public Access Rules support the implementation of the electronic case management system in all dockets in all courts.

 

Promulgation Order amending V.R.F.P. 4.3(f)

This Order was promulgated on June 12, 2020; effective August 18, 2020.

The addition of Rule 4.3(f) gives a uniform procedure in the Family Division for the enforcement of judgments or orders to pay money rendered in Family Division proceedings under V.R.F.P. 4.0-4.3.

 

Promulgation Order amending V.R.P.P. 3.1

This Order was promulgated on June 12, 2020; effective August 18, 2020.

The amendment to Rule 3.1 eliminates ambiguous, inconsistent, or obsolete language, including the time-honored but unspecific label “in forma pauperis.” The amendment also simplifies the process, consistent with the simultaneous amendments to V.R.C.P. 3.1 and V.R.A.P. 24.

 

Promulgation Order amending V.R.C.P. 3.1 and V.R.A.P. 24

This Order was promulgated on June 12, 2020; effective August 18, 2020.

The amendment to Rule 3.1 simplifies some provisions and eliminates ambiguous, inconsistent, or obsolete language, including the time-honored but unspecific label “in forma pauperis.”  Simultaneous conforming amendments are made to V.R.A.P. 24 and V.R.P.P. 3.1.

The amendment eliminates consideration of the income of “the applicant’s cohabiting family members” in determining the applicant’s income as ambiguous and overbroad. To the extent that paragraph (b)(2), covering an applicant who is not an aid recipient, requires consideration of more than the applicant’s resources, the proposal uses “household income” instead. The amendment eliminates language in paragraph (b)(1), which limited qualifying public assistance to that constituting “a major portion of subsistence” because of its breadth and ambiguity and the burden of calculation that it imposes on the clerk or designee.

Rule 24 is amended for consistency with the simultaneous amendments to V.R.C.P. 3.1 and V.R.P.P. 3.1.

 

Promulgation Order Adding V.R.P.P. 80.9, 80.10, and 80.11

This Order was promulgated on June 12, 2020; effective August 18, 2020.

New Rules 80.9-80.11 incorporate, with appropriate modifications, provisions of Rules 6, 6.1, 7, and 7.1 of the Rules for Family Proceedings regarding appointment of a guardian ad litem or an attorney.

New Rule 80.9 regarding representation of minors by guardians ad litem incorporates many provisions of V.R.F.P. 6. Throughout Rule 80.9, “minor” is substituted for “ward,” “proposed ward,” “person under guardianship,” or “child” for uniformity and simplicity of usage.

New Rule 80.10 relates to representation by attorneys and guardians ad litem of adults in specified proceedings.  It is adapted from V.R.F.P. 6.1.

New Rule 80.11 concerns representation by guardians ad litem and attorneys of child witnesses.  It is adapted from V.R.F.P. 7.1.  

 

Promulgation Order Amending V.R.P.P. 66 and 80.3 and Adding V.R.P.P. 74

This Order was promulgated on June 12, 2020; effective August 18, 2020.

The amendments to Rule 66 clarify its provisions in light of the Vermont Trust Code, 14A V.S.A. §§ 101-1204. The amendments clarify that its requirements do not apply to a trustee, consistent with 14A V.S.A. § 201. The amendment adds a requirement to file a supplemental inventory for omitted or newly discovered assets or information in Rule 66(a)(2) to implement 14 V.S.A. § 1053(a) as added by 2017, No. 195 (Adj. Sess.), § 6, effective July 1, 2018. New Rule 66(c)(4), requiring a sworn statement by the fiduciary that there are no outstanding expenses or unpaid debts or other claims against the estate, is added to provide assurance that the estate will not be reopened after compliance with Rules 66(c)(3) (final inventory) and 60.1(a)(2),(3) (closure of estate upon submission and court approval of fiduciary’s report).

Amended Rule 74 implements the provisions of 14 V.S.A. §§ 1851-1854, enacted by 2017, No. 195 (Adj. Sess.), § 12.  The statute provides a process for the court to waive further administration for all estates, other than small estates opened under 14 V.S.A. §§ 1901-1903. The provisions of the rule track the statute with some variations in language and a few additional features.

The amendment to Rule 80.3 makes it consistent with the statutory provisions governing small estates, 14 V.S.A. §§ 1901-1903, as amended by 2019, No. 36, § 1, effective July 1, 2019.

 

Order Promulgating Amendments to Administrative Order No. 49

This Order was promulgated on May 13, 2020; some provisions effective June 1, 2020 and some effective immediately.

This order further amends A.O. 49, which declared a Judicial Emergency on March 16, 2020, in response to the COVID-19 pandemic.

The order amends ¶ 2 to extend the judicial emergency until September 1, 2020.

The order amends ¶ 3, effective June 1, 2020, to lift the suspension of nonemergency hearings in the superior court and provide instead that jury trials are suspended in criminal cases until September 1, 2020, and in civil cases until January 1, 2021. The order removes ¶ 4, effective June 1, 2020, to lift the suspension of proceedings in the judicial bureau. Because nonemergency matters will no longer be suspended, effective June 1, 2020, the order removes ¶ 11, which provided discretion to Superior Judges to hold hearings in nonemergency matters.

Finally, the order adds ¶19, to allow attorneys, whoare due to relicense June 30, 2020 and face financial hardship due to the impact of the COVID-19 pandemic, to defer payment until September 1, 2020.

 

Promulgated Amendment to V.R.Cr.P. 32(c)(4)

This Order was promulgated on May 4, 2020; effective July 6, 2020.

Rule 32(c)(4) is amended to provide procedures for objecting to proposed probation conditions for consistency with State v. Lumumba, 2018 VT 40, 207 Vt. 254, 187 A.3d 353, State v. Bostwick, 2014 VT 97, 197 Vt. 345, 103 A.3d 476, and State v. Cornell, 2014 VT 82, 197 Vt. 294, 103 A.3d 469. The amendment makes the rule consistent with, yet not as expansive as, the provisions of Federal Rule of Criminal Procedure 32(f)(1).

Subparagraph (c)(4)(A) is amended to require written objections to PSI content in 7 days rather than 5 days.  The amendment also includes an express requirement that copies of any written objections be provided to the opposing party.

New subparagraph (c)(4)(C) is added to require that before pronouncing sentence and concluding the sentencing hearing, the sentencing judge must provide opportunity for comment and objection to what are in effect any “unnoticed” conditions of probation. This amendment is intended to expressly provide a defendant with an opportunity to articulate objection to conditions of probation that may not have been mentioned in the sentencing record, and thus to preserve claims of error as to purportedly unnoticed or “surprise” conditions, without the necessity of filing a motion for correction of sentence under V.R.Cr.P. 35.

 

Order Promulgating Amendments to Administrative Order No. 49

This Order was promulgated on April 30, 2020; effective immediately.

This order further amends A.O. 49, which declared a Judicial Emergency on March 16, 2020, in response to the COVID-19 pandemic.

The order amends ¶ 5(a) regarding remote participation to extend to the Environmental Division the same provisions applicable in most cases in the civil, family, and probate divisions.

The order amends ¶ 5(b) regarding remote participation in the criminal division to extend its provisions to juvenile delinquency proceedings. Further amendments to ¶ 5(b) allow nonevidentiary proceedings not requiring presence of the defendant or juvenile to be conducted via video conference. In evidentiary proceedings where the presence of the defendant is required, remote participation is by consent of the parties. 

Finally, the order amends ¶ 17, which relates to notarization and oaths, to eliminate the special procedure for allowing a party to self-attest to an oath where an oath and notary are required by court rules. Because of action taken by the Vermont Legislature, this provision is now unnecessary. Under S. 114, signed into law on April 28, 2020, a party may file without notarization any document that would otherwise require approval or verification of notary by including a self-attestation clause.   

 

Order Promulgating Amendments to Administrative Order No. 49

This Order was promulgated on April 21, 2020; effective immediately.

This order further amends A.O. 49, which declared a Judicial Emergency on March 16, 2020, in response to the COVID-19 pandemic.

The order amends ¶ 3 regarding the suspension of nonemergency hearings in the Superior Court.  In the list of proceedings excepted from the general suspension of hearings, the order now includes certain emergency hearings involving the modification or enforcement of parent-child contact in domestic and juvenile cases.

The order amends ¶ 5 regarding remote participation in hearings to provide trial courts with greater flexibility in presiding remotely through remote audio or video technology, and in setting hearings with remote audio or video participation. The amendment recognizes that the present Judicial Emergency warrants suspension of the notice and timing requirements relating to video hearings pursuant to V.R.C.P. 41.3(c), V.R.P.P. 41.3(c), and V.R.F.P. 17 (incorporating V.R.C.P. 41.3 for certain family proceedings). It authorizes courts to hold hearings, both evidentiary and nonevidentiary, in civil, probate, and most family division cases by remote audio technology. It authorizes courts in the criminal division to hold certain nonevidentiary proceedings by remote audio means where the presence of the defendant is not required by V.R.Cr.P. 43.  And it authorizes courts to hold evidentiary proceedings in the criminal division by remote means upon agreement of all parties

Finally, the order amends ¶ 7, which relates to access to court buildings, to require all individuals who enter Judiciary buildings to wear cloth masks. Masks must be worn in public areas, including the courtroom, in nonpublic areas shared in common with others, and in nonpublic workspaces when other people are nearby. The masks may be made of cloth and should cover the individual’s mouth and nose.

 

Order Promulgating Amendments to Administrative Order No. 49

This Order was promulgated on April 13, 2020; effective immediately.

This order further amends A.O. 49, which declared a Judicial Emergency on March 16, 2020, in response to the COVID-19 pandemic.

The order amends ¶ 6 regarding service of pleadings and other documents.  New paragraph 6(c), regarding service in the Superior Court, requires lawyers to serve documents except for service of process, on one another by email in divisions where there is no electronic filing.  To facilitate this, lawyers must provide up to three emails to receive service.  Lawyers may also agree in writing to an alternative method of service, including by mail or another electronic method, but must put the agreement in writing.  Email service is not required by or to self-represented parties, but the parties may agree to email or other electronic service in a writing filed with the court.  Former paragraph 6(c) is relettered 6(d).  Paragraph 6(e), concerning service in the Supreme Court is amended to incorporate the rules for the Superior Court in 6(c).  The sole exception is that for the Supreme Court, briefs and printed cases must be served as required by the appellate rules, in particular a paper copy must be served on a self-represented party unless the parties agree otherwise.

 

Order Promulgating Amendments to Administrative Order No. 49

This Order was promulgated on April 9, 2020; effective immediately.
This order further amends A.O. 49, which declared a Judicial Emergency on March 16, 2020 in response to the COVID-19 pandemic.
The order amends ¶ 2 to provide that the judicial emergency will extend until May 31, 2020.  The amendment removes language that had a different suspension period for jury trials so that suspension of jury draws and jury trials is coterminous with the period of the judicial emergency.  

 

Order Promulgating Amendments to Administrative Order No. 49

This Order was promulgated on April 6, 2020; effective immediately.

This order further amends A.O. 49, which declared a Judicial Emergency on March 16, 2020 in response to the COVID-19 pandemic.

The order amends ¶ 3(b) of the order, which relates to the suspension of nonemergency Superior Court hearings and directs that all jury draws and jury trials currently scheduled to take place on or before May 15, 2020 be suspended.

The order amends ¶ 6(c) regarding email filings in the Supreme Court. The amendment suspends the requirement that parties file paper copies of their briefs and printed case. Appellate briefs and printed cases will be considered filed when sent by email. Paper copies will still be required if ordered by the Court or within thirty days after either the judicial emergency ends or the filing requirement is no longer suspended.

Paragraph 7(a), concerning access to court buildings is amendment to correct terminology and refer to communication specialists. 

Paragraph 12, concerning oral arguments in the Supreme Court, is amendment to allow the Court to hold oral argument through video or other electronic means and to provide public access by electronic means.

New ¶ 17 is added and addresses notarization and oaths. It allows individuals to self-certify the truthfulness of their statements, subject to the penalty of contempt where notarization is required by court rule. It also allows remote administration of the oath for depositions and allows courts to administer an oath remotely in a hearing if the court is satisfied as to the identity of the witness testifying.

New ¶ 18 is added to suspend the administration of the July Uniform Bar Exam to a lat

 

Order Promulgating Amendments to Administrative Order No. 49

This Order was promulgated on March 25, 2020; effective immediately.

This order further amends A.O. 49, which declared a Judicial Emergency on March 16, 2020 in response to the COVID-19 pandemic.

The order amends ¶ 7 of A.O. 49, which pertains to access to judiciary buildings. The order restricts access to Vermont Judiciary courthouses to participants with some narrow exceptions. Registered members of the media may continue to enter courthouses to observe court proceedings that are not otherwise confidential. All individuals admitted to a courthouse must observe social distancing to the extent reasonably possible.

The order is also amended to add an Explanatory Note, which describes the progressive and ongoing measures taken by the Court as a balance between responding to mitigate the risks from the COVID-19 pandemic, providing public access to court proceedings and upholding the critical role that courts play in protecting individual rights and maintaining the rule of law.

 

Order Promulgating Amendments to Administrative Order No. 49

This Order was promulgated on March 24, 2020; effective immediately.

This order further amends A.O. 49, which declared a Judicial Emergency on March 16, 2020 in response to the COVID-19 pandemic.

The order amends ¶ 7 of A.O. 49, which pertains to access to judiciary buildings by removing the March 30, 2020 end date and extending the restrictions on entry during the time the order is in effect. The amendment also removes the list of countries and regions affected and instead refers to the list on the Department of Health website.

The order adds a section related to Committees, Boards, and Commissions (committees) established or governed by the Supreme Court, including those created by administrative orders and rules. The order indicates that committees will continue to operate to the extent possible. All in-person meetings are suspended. Committees may meet remotely and must take reasonable steps to facilitate public observation. In their discretion, committees may hold nonevidentiary hearings remotely.  Evidentiary hearings are postponed but can be excepted upon application to the Supreme Court. The order allows an oath for admission to the bar to be taken remotely by video. The order also addresses the MCLE requirements for attorney licensing renewal and provides a waiver for the types of activities for the 2018-2020 reporting period. The order allows committees to accept filings by email and indicates how to accomplish that filing.

The order addresses venue and allows the Chief Superior Judge, in consultation with the State Court Administrator, to both assign venue for certain proceedings if all participants can participate remotely and assign a change in venue if necessary to ensure access to justice and efficient administration of justice.

 

Order Promulgating Amendments to Administrative Order No. 49

This Order was promulgated on March 20, 2020; effective immediately.

This order further amends A.O. 49, which declared a Judicial Emergency on March 16, 2020 in response to the COVID-19 pandemic.

The order amends the portion of A.O. 49 related to email filings and lists the acceptable methods for how a party can sign a document filed with a court by email. 

The order adds a section related to court-ordered mediation, clarifying that the judicial emergency constitutes “good cause” and allows parties to attend mediation by video or telephone.

The order also adds a section on employee work locations and explains that judiciary employees must work only in their assigned building during business hours, except for authorized supervisors, or remotely in accordance with the Judiciary’s teleworking guidelines.

 

Order Promulgating Amendment to Administrative Order No. 49

This Order was promulgated on March 18, 2020; effective immediately.

This order amends A.O. 49, which declared a Judicial Emergency on March 16, 2020 in response the COVID-19 pandemic.

Pursuant to the order, hearings for nonemergency matters, although generally suspended, may proceed if litigants participate remotely and are not in the courthouse in the discretion of the Superior Judge and subject to the Court Administrator’s discretionary authority regarding staff availability for a particular unit.

The Supreme Court may hold oral arguments for summary or full-Court proceedings by telephone or consider cases without oral argument in its discretion.

 

Order Promulgating Administrative Order No. 49 - Declaration of Judicial Emergency and Changes to Court Procedures

This Order was promulgated on March 16, 2020; effective immediately.

In response to the novel coronavirus, COVID-19 and the Governor’s declaration of a state of emergency, the Supreme Court declares a judicial emergency, effective immediately and extending until April 15, 2020. To minimize risks to public-health, the Court has suspended all nonemergency superior court hearings, suspended judicial bureau hearings, allowed appearance by telephone or video for nonevidentiary hearings, and allowed filing by email. The Court has also limited access to Vermont Judiciary buildings until March 30, 2020. The Court is suspending strict enforcement of the deadlines related to requests for records under Vermont Rule of Access to Court Records § 6.

 

Order Promulgating Administrative Order No. 48

This Order was promulgated on March 9, 2020; effective immediately.

Consistent with the Court’s administrative responsibilities under the Vermont Constitution, Administrative Order 48 effectuates the Court’s ongoing emergency planning. When there is an emergency, the judiciary may be required to implement measures to ensure that litigants, staff, and judiciary personnel can access and participate in judicial proceedings. This may include modifying or suspending existing rules regarding time deadlines or the use of video, audio, or other technologies.

This order was sent out for comment on February 11, 2020. The comment period remains open. Comments on this order should be sent by April 13, 2020, to Emily Wetherell, Deputy Clerk of the Vermont Supreme Court, at the following address:

Emily Wetherell, Deputy Clerk
Vermont Supreme Court
109 State Street
Montpelier, VT  05609-0801
emily.wetherell@vermont.gov

 

Order Promulgating Amendments to Rule 6(15) and (26) of the Rules of the Supreme Court for Disciplinary Control of Judges

This Order was promulgated on February 10, 2020; effective April 13, 2020.

The amendments to Rule 6(15) and (26) update the cross references to the Code of Judicial Conduct 2019, which became effective October 7, 2019.

 

Order Promulgating Amendments to Rule 40(e)(4) of the Vermont Rules of Civil Procedure, Rule 27.1(b)(4) of the Vermont Rules of Appellate Procedure, Rule 50(d)(4) of the Vermont Rules of Criminal Procedure, and Rule 40(d)(4) of the Vermont Rules of Probate Procedure

This Order was promulgated on February 10, 2020; effective April 13, 2020.

The amendments update the cross references to the Code of Judicial Conduct 2019, which became effective October 7, 2019.

 

Order Promulgating Amendment to Rule 62(a)(3)(A) of the Vermont Rules of Civil Procedure

This Order was promulgated on February 10, 2020; effective April 13, 2020.

The amendment to Rule 62(a)(3)(A) deletes a comma after the word “chattel” in the second line to eliminate an ambiguity regarding the timing of when an order for possession could be issued. The change is meant to clarify that the 14-day limit applies to issuance of an order of possession as well as to commencement of enforcement proceedings.

 

Order Promulgating Amendments to Rules 3, 7, 9, 10 of the Vermont Rules of Small Claims Procedure

This Order was promulgated on February 10, 2020; effective April 13, 2020.

Amended Rule 3, along with simultaneous amendments to Rules 7, 9, and 10 now requires that the plaintiff serve the defendant with a small claims default judgment.

Under the existing rules, the court has no good address for the defendant and therefore only sends a copy of the judgment to the plaintiff. However, Rule 7(a) provides for payment within 30 days of “entry of judgment,” meaning the date that the judgment is docketed. If no such payment is made, plaintiff may move for financial disclosure, and there is no requirement in Rule 7(a) that the plaintiff prove that the defendant has received or seen the judgment. The plaintiff is only required to file a certificate of service showing that the motion was sent to the defendant by regular mail. The plaintiff may also seek trustee process or a writ of execution, or may file a judgment lien, before the defendant knows of the judgment. V.R.S.C.P. 9. It is not until the next enforcement step (a motion for contempt for not complying with whatever order comes out of the financial disclosure hearing) that the plaintiff is required to have the sheriff personally serve the defendant. Even then, the judgment itself is not served, only the judicial summons to come to the hearing. V.R.S.C.P. 8(b)(2). Rule 10(a) presents a similar problem with appeals.

Accordingly, amended Rule 3(f) requires service by sheriff or other authorized person and the filing of the return of service in every case before enforcement proceedings are taken. Amended Rule 3(g) conforms to the amendment of Rule 3(f).

Amended Rule 7(a)(1)(A) and (c) conforms to the simultaneous amendment of Rule 3(f).

Amended Rule 9(a), (b)(1), and (c) incorporates the appropriate 30-day period provided in Rule 10(a)(1) as simultaneously amended. If the defendant has appeared, enforcement proceedings may be undertaken within 30 days from the entry of judgment. If the judgment is a default judgment, the date is 30 days from the date of service on the defendant. The latter provision is intended to conform to the simultaneous amendment of Rule 3(f).

Amended Rule 10(a)(1) conforms appellate practice to the simultaneous amendment of Rule 3(f) requiring service of a default judgment on the defendant before enforcement proceedings are commenced.

 

Order Abrogating and Replacing the Vermont Rules for Mandatory Continuing Legal Education

This Order was promulgated on February 10, 2020; effective July 1, 2020.

The 2020 amendments to the Rules for Mandatory Continuing Legal Education are comprehensive and implement much of the ABA’s February 2017 Model Rule for Minimum Continuing Legal Education.

Some of the changes include the following:

  • Increasing the total number of credit hours per reporting period from 20 to 24.
  • Replacing the prior distinction between live and self-study programming with three types of programming and definitions of each.
  • Requiring attorneys to complete one credit hour of attorney wellness and one of diversity and inclusion programming in a reporting period.
  • Adding a carryover provision so that attorneys can use excess credit from the second year of the reporting period in the next reporting period.
  • Providing the MCLE Board with the authority to audit attorneys.

 

Order Promulgating Amendment to Rule 6.2 of the Vermont Rules for Family Proceedings

This Order was promulgated on February 10, 2020; effective April 13, 2020.

The addition of Rule 6.2 provides a single procedure for mental-health proceedings under 18 V.S.A. Chapters 179 and 181 (Involuntary Treatment); 18 V.S.A. § 8840 (Commitment to the Commissioner for Custody, Care, and Habilitation); and 18 V.S.A. Chapter 215 (Guardianship Services for People with Developmental Disabilities). The rule delineates which civil rules apply in these proceedings, indicates the proper venue for these proceedings, addresses appointment of counsel, and includes provisions on scheduling, discovery, and consolidation. The rule allows electronic service and filing, either under existing means or pursuant to the 2020 Electronic Filing Rules.

 

Emergency Order (Judicial Code of Conduct Application)

This Order was promulgated on January 23, 2020; effective immediately.

The Application section is amended to exempt periodic part-time judges from Rule 3.15, which requires judges to submit a public annual income report. Because periodic part-time judges serve only sporadically, an annual report is both unnecessary and overly onerous. The emergency amendment took effect immediately so that periodic part-time judges would not be required to submit an income report for the 2019 calendar year.

Comments on this emergency amendment should be sent by April 13, 2020, to Emily Wetherell, Deputy Clerk of the Vermont Supreme Court, at the following address:

Emily Wetherell, Deputy Clerk
Vermont Supreme Court
109 State Street
Montpelier, VT  05609-0801
emily.wetherell@vermont.gov

 

Order Amending Rule 804a of the Vermont Rules of Evidence

This Order was promulgated on January 6, 2020; effective March 9, 2020.

The amendment to Rule 804a reflects the Legislature’s efforts to eliminate offensive language and makes this rule’s language more consistent with the language of Rule 807. The rule retains the definition of “mental illness” provided in 18 V.S.A. § 7101(14), rather than using the term “psychiatric disability” provided by 1 V.S.A. § 147. The latter is a broader term that encompasses a wider arc of impairments. Its use here would cause the expansion of a rule that was originally

 

Order Promulgating Amendment to Administrative Order No. 14

This Order, promulgated on January 6, 2020, effective immediately, replaces Justice Skoglund with Justice Cohen as the justice responsible to entertain motions for Area II.

 

Order Promulgating the 2020 Vermont Rules for Electronic Filing

This Order was promulgated on December 10, 2019; effective March 2, 2020.

The 2020 Vermont Rules for Electronic Filing are designed to conform to the upcoming new Judiciary case management system (CMS). The CMS will have electronic filing and electronic casefiles and will be rolled out over time in the superior courts and the judicial bureau. Additions to these rules will be made when the new CMS is rolled out for the Supreme Court and other judiciary entities. The existing 2010 Vermont Rules for Electronic Filing, which were designed for eCabinet, will remain in effect and applicable to dockets where they are currently in use. Once the new CMS is rolled out in all the locations and dockets where eCabinet has been employed, the 2010 rules will be repealed.

Extensive instructions will supplement the rules and will often appear on screens for electronic filing and the viewing of electronic case files. The user must follow these instructions for electronic filing, service after commencement, and viewing of files. In addition to the efiling system, the public and parties will be able to view electronic case files, either by remote access and/or on terminals at court houses, through a public portal. To view nonpublic documents a separate registration for that portal and approval of elevated status will be required.

The adoption of these rules is coordinated with the adoption of extensive amendments to the Vermont Rules for Public Access to Court Records to enable, with necessary restrictions, the public and filers to view electronic case files when a filing is accepted. Those rules contain specific directions for filers to comply with requirements making certain records and information inaccessible to the public. Filers should consult the public access rules, as well as these rules, to be sure a filing complies.

 

Order Promulgating Amendments to Rules 3, 5, 5.1, 6, 9, 10, 11, 12, 13, 28, 30, and 45.1 of the Vermont Rules of Appellate Procedure

This Order was promulgated on December 10, 2019; effective March 2, 2020.

The amendments to the appellate rules update language in anticipation of the new case management system, which will be rolled out in phases throughout the state concurrent with electronic filing and electronic case files. The rollout will initially be in divisions of the superior court, and the Supreme Court will be at the end of the rollout period. The amendments to the appellate rules are made to accommodate appeals from cases that were filed under the new case management system and have electronic case files. When the case management system is implemented in the Supreme Court, the appellate rules will be amended further. The rules are amended in several places to use “transmit” instead of “mail” to allow electronic or other types of transmission of documents. The term “docket entries” is replaced with the more general term “record of actions.” Various rules have been amended to clarify when references are to the 2010 Vermont Rules for Electronic Filing.

Rules 28 and 30 are amended to specify how to refer to the record in cases filed under the 2020 Vermont Rules for Electronic Filing and to clarify that no printed case is required when there is an electronic case file under either the 2010 or 2020 Vermont Rules for Electronic Filing. In cases with no electronic case file, a printed case must still be filed.

 

Order Promulgating Amendments to Rules 5 and 79 of the Vermont Rules of Civil Procedure and Rules 5 and 79 of the Vermont Rules of Probate Procedure

This Order was promulgated on December 10, 2019; effective March 2, 2020.
The amendments to V.R.C.P. 5 and V.R.P.P. 5 are made to conform the rules to the 2020 Vermont Rules for Electronic Filing. The amendments explain the certificate of service requirements when documents are filed under the new efiling rules. The amendments clarify when references are to the 2010 Vermont Rules of Electronic Filing.

The amendment removes V.R.C.P. 79(a)(1) and V.R.P.P. 79(c) because the custodian of records is as specified in V.R.P.A.C.R. 3(c), effective July 1, 2019.

 

Order Promulgating Amendments to Vermont Rules for Environmental Court Proceedings 3, 4, and 5, Vermont Rules of Civil Procedure 4, 10, 45, 77, and 79.1,Vermont Rule of Criminal Procedure 44.2, Vermont Rules of Probate Procedure 4 and 79.1, and Vermont Rule for Family Proceedings 15

This Order was promulgated on December 10, 2019; effective March 2, 2020.
The amendments to various rules are designed to conform the rules to the adoption of the new case management system and the 2020 Vermont Rules for Electronic Filing. The new case management will be rolled out across the state in phases. Until the new case management system and electronic filing are fully implemented, different divisions of the superior court will be operating under different electronic filing rules. The Environmental Division currently has electronic filing under the 2010 Vermont Rules for Electronic Filing and so references are amended to specify that those rules are applicable. After the Court Administrator directs that electronic filing under the 2020 Vermont Rules for Electronic Filing will begin in the Environmental Division, the 2010 Vermont Rules for Electronic Filing will no longer apply, and the Rules for Environmental Court Proceedings will require revision. The amendments clarify when cross references in the environmental, civil, probate, and family rules are to the 2010 Vermont Rules for Electronic Filing.

 

Order Amending Rules 55 and 80.1 of the Vermont Rules of Civil Procedure

This Order was promulgated on November 5, 2019; effective January 6, 2020.

Rule 55 is amended to reflect the needs of current practice and to modernize language. The amendment deletes the requirement of subdivision (a) for a separate entry of default by the clerk in favor of a provision allowing the party seeking relief to file a motion for default judgment to initiate the process.

The amendment to Rule 55(a) follows the federal rule by deleting “as provided by these rules,” so that an indication of an intent to defend, even if not in compliance with the rules, does not trigger a default.

Rule 55(d) is now 55(b) and former (b) is now designated (c).

The amendment deletes the first sentence of former Rule 55(b)(1), now (c)(1), requiring an application to the court for a default judgment because it is superfluous in light of the new requirement for a motion. The addition of a sentence to paragraph (1) makes clear that the party seeking a default judgment has the burden on the issue of minority and must disclose any information in that party’s possession on the issue of competency.

The amendment to Rule 55(c)(2) eliminates the formal reference to entry of judgment by the clerk. The amendment changes the time for notice in Rule 55(c)(4) from five to seven days.

The amendment to Rule 80.1(c) provides consistency with the simultaneous amendment of Rule 55(a).

 

Order Promulgating Emergency Amendments to Rule 79.2(c) of the Vermont Rules of Civil Procedure and Rule 35(c) of the Vermont Rules of Appellate Procedure

This emergency order was promulgated on September 4, 2019; effective immediately.

V.R.C.P. 79.2 was amended effective September 3, 2019. That amendment added a restriction on use of devices in a courthouse by prohibiting any person from recording or transmitting the image or sound of an individual outside a courtroom without express consent. The prohibition was designed to prevent recording of juveniles, jurors, and participants in confidential proceedings from being recorded in public areas of the courthouse and to prevent the public from using recording as a harassment tool against others attending obligatory court hearings. The emergency amendment allows registered media to visually and orally record and transmit in the courthouse, consistent with the distinction made elsewhere in the rules. The restriction on communication with a sequestered witness is preserved. The media are precluded from recording or transmitting images or sound of parties and witnesses in confidential proceedings in areas immediately adjacent to the courtroom. Nonmedia are still precluded from recording or transmitting without express consent.

V.R.A.P. 35 was amended effective September 3, 2019. That amendment added a restriction on use of devices in a courthouse by prohibiting any person from recording or transmitting the image or sound of an individual outside a courtroom without express consent. The prohibition was designed to prevent individuals from using recording as a harassment tool against others attending obligatory court hearings. The emergency amendment eliminates the restriction on recording and transmitting in the courthouse and allows use in the courthouse that is nondisruptive. Disruptive uses include using a device to harass or intimidate another person. There is no distinction between media and nonmedia in the appellate rule, unlike the rule applicable in the superior court, because, among other reasons, there are no witnesses or jurors at the Supreme Court.

Comments on these emergency amendments should be sent by November 08, 2019, to Emily Wetherell, Deputy Clerk, at the Vermont Supreme Court, at the following address:

Emily Wetherell, Deputy Clerk
Vermont Supreme Court
109 State Street
Montpelier, VT  05609-0801
emily.wetherell@vermont.gov

 

Order Abrogating Administrative Order No. 10 and Promulgating the Vermont Code of Judicial Conduct 2019

This order was promulgated on August 6, 2019; effective October 7, 2019.

The Vermont Code of Judicial Conduct 2019 (hereinafter Vermont Code 2019) replaces and significantly changes the Vermont Code of Judicial Conduct promulgated by the Vermont Supreme Court in 1994 as Administrative Order No. 10 and subsequently amended (hereinafter Vermont Code 1994).

Vermont Code 2019 adopts the format and substantive provisions of ABA Code 2007, with necessary or appropriate Vermont variations. The purpose is to assure that Vermont judges will continue to be governed by principles of conduct that are substantially uniform with those applicable in other jurisdictions. While much of the substance of the former Code remains in effect, the revisions also clarify and expand many provisions in light of problems in application or changing conditions.

 

Order Promulgating Amendments to the Comments to Rule 1.1 of the Vermont Rules of Professional Conduct

This order was promulgated on July 9, 2019; effective September 9, 2019.

These amendments grew out of the work of the Vermont Commission on the Well-Being of the Legal Profession. The Commission was created in response to The Path to Lawyer Well-Being: Practical Recommendations for Positive Change, a report issued by the National Task Force on Lawyer Well-Being. The amendment recognizes that a lawyer’s mental, emotional, and physical well-being may impact a lawyer’s ability to practice law. The amendment is intended to remind lawyers that their behavioral health may impact clients and the administration of justice, and to encourage lawyers to employ preventive strategies and self-care.

 

Order Promulgating Amendments to Rule 41 of the Vermont Rules of Civil Procedure

This order was promulgated on July 9, 2019; effective September 9, 2019.

Rule 41(a) and (b) are reorganized and amended at the request of the Civil Division Oversight Committee to conform to current practice and to eliminate outdated terminology.

Rule 41(a)(1) as amended continues to allow an action to be dismissed without order of court if a notice of voluntary dismissal is filed at any time before an answer or motion for summary judgment has been filed. The addition of “claim” makes clear that, as now provided in new paragraph (a)(5), one or more claims that have been joined in a single action may be dismissed without dismissal of the entire action.

Other provisions of former paragraph (a)(1) have been separated for clarity and set forth in new paragraphs (a)(2)-(a)(6).

Former Rule 41(b)(1)(i), providing for involuntary dismissal of an action on a trial list that has been pending more than two years, has been deleted. Former subparagraphs (b)(ii) and (iii) have been renumbered as (i) and (ii) with language clarifications. Their time periods have been shortened and made uniform to allow more expeditious elimination of stale actions. Language has been added in (b)(ii) to make clear that the shorter time periods may be extended by the court and that dismissal may be entered against defendants who have not been served, leaving the action pending against those who have been served.

 

Order Promulgating Rule 23(g) of the Vermont Rules of Civil Procedure

This Order was promulgated on June 13, 2019; effective August 15, 2019.

New Rule 23(g) provides for the disbursement of residual funds that remain after satisfaction of all claims under a class action judgment or settlement. 

 

Order Promulgating Amendments to Rule 24 of the Vermont Rules of Admission to the Bar of the Vermont Supreme Court

This Order was promulgated on June 13, 2019; effective August 15, 2019.

Amended Rule 24 allows a legal intern, who is admitted in another U.S. jurisdiction, to appear in court without the presence of the supervising attorney and to sign documents in connection with the pending matter without the co-signature of the supervising attorney. This amendment essentially gives such legal interns the same authority as that given to nonresident attorneys admitted pro hac vice under Administrative Order No. 41, but without the need to submit a pro hac vice application and fee for each case in which the legal intern wishes to appear. In doing so, the amendment aims to reduce administrative, staffing, and financial obstacles that may otherwise prevent qualified legal interns, especially those working for state agencies, from appearing as legal counsel.

 

Order Adding Rule 39 to the Vermont Rules of Probate Procedure

This Order was promulgated on June 13, 2019; effective August 15, 2019.

New Rule 39 allows expedited proceedings in cases that potentially may be appealed de novo to the civil division. Under the amendment, if both parties have appeared, the judge may make a determination on the merits without swearing-in the parties if the facts as represented by them on the record are undisputed and no party objects.

 

Order Promulgating Amendments to Rule 3 of the Vermont Rules of Admission to the Bar of the Vermont Supreme Court

This Order was promulgated on May 1, 2019; effective immediately.

The amendment to Rule 3 increases the number of Examiners from nine to eleven by adding two attorney members and increasing the number of Associate Examiners from seven to eight to facilitate grading the additional questions contained in the Uniform Bar Examination. The number of Examiners necessary to comprise a quorum has been increased accordingly.

 

Order Abrogating and Replacing Rule 79.2 of the Vermont Rules of Civil Procedure, Rule 53 of the Vermont Rules of Criminal Procedure, and Rule 79.2 of the Vermont Rules of Probate Procedure, and Abrogating Vermont Supreme Court Administrative Directive No. 28

This Order was promulgated on May 1, 2019; effective September 3, 2019.

The rule was developed by a special committee composed of judges, court administrators, members of the Supreme Court’s procedural rules committees, and representatives of the media. The special committee’s draft was previously sent out for public comment, discussed by each of the procedural rules committees, and considered at a public hearing before a final version was recommended to the Supreme Court for promulgation. The Supreme Court made further alterations and sent the proposal out for comment a second time.

The rule governs both possession and use of recording and transmitting devices. It defines terms that are essential to the operation of the rule. Rule 79.2(c) broadly provides that a device may be used nondisruptively anywhere in a courthouse.

Rule 79.2(d) contains limits on use applicable to anyone possessing or using a device in a courtroom. The rule, supplemented by Administrative Order No. 46, lays out a scheme for registration of media and their representatives entitling them to use devices to record and transmit courtroom proceedings. The rule provides that participants may use devices in the courtroom with some restrictions. The rule allows nonparticipants to possess devices in the courtroom, but to use them only in limited circumstances. Devices must be turned off or in silent mode except during nonevidentiary hearings when the jury or jury pool is not present. The rule contains provisions applicable to jurors.

Rule 79.2(e) sets limits designed both to protect the decorum and the necessary confidentiality of certain proceedings. The rule allows limits on use but contains a presumption in favor of media access. 

Rule 79.2(f) states that the court may waive any of the limitations imposed by the rule on request for good cause and subject to any necessary or appropriate restrictions.

Former rules V.R.Cr.P. 53 and V.R.P.P. 79.2 are abrogated and replaced with a statement making the civil rule applicable to proceedings in the criminal and probate divisions. No change is made to V.R.F.P. 4.0(a)(2) or V.R.E.C.P. 3 so V.R.C.P. 79.2 will continue to apply to public proceedings in the family and environmental divisions.

Former Administrative Directive No. 28 is abrogated, which concerns use of electronic devices in a courtroom.

The new rules will not become effective until September 3, 2019 to allow time for educating court staff, members of the bar, members of the media, and the public on the provisions of the new rules. There is a short summary of the rule requirements linked below. The rule requires the Advisory Committees on the Rules of Civil Procedure, Rules of Criminal Procedure, Rules for Family Proceedings, and Rules of Probate Procedure to review the operation of the new rules and report back to the Court by September 7, 2021. The new rules will expire on September 6, 2022 absent further order from the Court.

 

Order Abrogating and Replacing Rule 35 of the Vermont Rules of Appellate Procedure

This Order was promulgated on May 1, 2019; effective September 3, 2019.

Rule 35 is abrogated and replaced consistent with the simultaneous amendment to V.R.C.P. 79.2. See Reporter’s Notes to V.R.C.P. 79.2.

Rule 35(b) provides definitions for terms used throughout the rule. These definitions are the same as those provided in V.R.C.P. 79.2(b) except that there is an added definition for “Chief Justice” and no definition for “juror.” 

Under Rule 35(c) any person is authorized to possess any device in a courthouse and use it in a nondisruptive manner except outside the courtroom, no person can record or transmit images or sound of an individual without express consent.

Rule 35(d) addresses use inside a courtroom. The rule allows registered media, participants, and nonparticipants to possess and use devices in the courtroom, but the devices cannot be used to communicate orally and may not make distracting sounds.  Media can record and transmit video and audio.  There are limits on the number and position of devices for video recording and transmission.  The use for the Supreme Court is broader than the use allowed in the superior court because there are no witnesses or juries at the Supreme Court.

Rule 35(e) sets limits on recording and transmission. Under (e)(1), there are limits on video and audio recording to ensure confidentiality of communications between members of the Court, between co-counsel, and between attorney and client. The Court is authorized in (e)(2) to prohibit, terminate, limit, or postpone recording or transmitting of a proceeding based on several factors.

 

Order Promulgating Administrative Order No. 46

This Order was promulgated on May 1, 2019; effective September 3, 2019.

Administrative Order 46 provides the administrative implementation and performance standards for recording and transmitting devices as set forth in V.R.A.P. 35 and V.R.C.P. 79.2 and related rules.  The administrative directive provides the processes for media registration and for creating a policy for each courtroom on media use and placement of equipment.

 

Order Promulgating Amendments to V.R.C.P. 26(b)(A)(i)

This Order was promulgated on May 1, 2019; effective July 1, 2019.

The amendment to Rule 26(b)(5)(A)(i) adapts the language of F.R.C.P. 26(a)(2)(A) for the provision of the Vermont Rule identifying expert witnesses whose identity must be disclosed in response to an interrogatory. The amended rule applies to “each person” who may be used at trial to present expert testimony under Vermont Rules of Evidence 702, 703, and 705. To remove uncertainty regarding whether this requirement applies to witnesses whose testimony falls within those Evidence Rules but who were not specially retained to develop their opinions, the proposed amendment makes clear that Rule 26(b)(5) applies “whether or not the witness may also testify from personal knowledge as to any fact in issue in the case.”

 

Order Promulgating Amendments to the Vermont Rules of Civil Procedure, the Vermont Rules for Family Proceedings, and the Vermont Rules of Probate Procedure

This Order was promulgated on May 1, 2019; effective August 5, 2019.

The addition of V.R.C.P. 43.1 provides a uniform procedure and standards for video or audio conference participation of parties and other necessary persons, as well as testimony of witnesses, in civil actions and in the civil division of the superior court.  The rule sets the terms on which video or audio conferencing may be employed, including time lines and factors to be considered.  The intent is to favor the use of video or audio conferencing when it will advance disposition of a proceeding as long as technical standards are satisfied and there is no countervailing circumstance in the particular situation.

The amendment to V.R.C.P. 43(a) reflects the fact that new Rule 43.1 and simultaneous amendments to the family and probate rules, permit testimony to be presented by video or audio conference in appropriate circumstances.

Rule 43.1 also applies so far as applicable in small claims actions by virtue of V.R.S.C.P. 6(a) and 13 and in the Environmental Division to the extent provided in V.R.E.C.P. 3, 4(a), and 5(a)(2). The simultaneous amendment to V.R.F.P. 17 makes the rule applicable in family division proceedings, other than juvenile proceedings under V.R.F.P. 1, subject to specific provisions for certain statutory mental-health and guardianship proceedings.

The amendment to V.R.P.P. 43(b) reflects the addition of new V.R.P.P. 43.1, promulgated simultaneously, which permits testimony to be presented by video or audio conference in appropriate circumstances.  New V.R.P.P. 43.1 basically adopts the procedures of V.R.C.P. 43.1 with minor changes in terminology and timing to better reflect probate practice.

 

Order Promulgating Administrative Order No. 47

This Order was promulgated on May 1, 2019; effective August 5, 2019.

Administrative Order No. 47 is adopted to implement V.R.P.P. 43.1 and V.R.C.P. 43.1 and related rules that are simultaneously promulgated to provide for video and audio conference participation of parties and other necessary persons, as well as testimony of witnesses, in actions in the civil, environmental, family, and probate divisions of the superior court. See V.R.C.P. 43.1(e), V.R.P.P. 43.1 and Reporter’s Notes to simultaneous adoption of V.R.C.P. 43.1, and simultaneous amendments of V.R.F.P. 17 and V.R.P.P. 43(b). The technical standards are adopted by Administrative Order rather than by Rule to permit more rapid and flexible change as necessary to take advantage of changing technological capabilities.

Sections 1(a)-(c) of the order require that, for video conferencing to be used, both remote participants and those in the courtroom must have visual and aural access to all aspects of the proceedings comparable to that which they would have if the entire proceeding was occurring, and all participants were present, in the courtroom. Sections 1(d)-(f) address the necessary capabilities that the video conference system to be used must have to ensure that those requirements are met. Section (1)(g) is intended to ensure that the use of video conference does not in any way diminish a remote party’s ability to communicate confidentially with counsel and to have timely access to any documentary material that may be necessary for full participation in the proceeding.

Sections 2(a)-(f) of the order are intended to adapt the provisions of Section 1 to the circumstances of audio conference and participation.

 

Order Abrogating and Replacing the Vermont Rules for Public Access to Court Records and Abrogating the Rules Governing Dissemination of Electronic Case Records

This Order was promulgated on May 1, 2019; effective July 1, 2019.

This order abrogates and replaces the Vermont Rules for Public Access to Court Records and abrogates the Rules Governing Dissemination of Electronic Case Records, which are incorporated into the new public access rules. The rules cover records in both physical and electronic form and their adoption is timed to coincide with the implementation of a new case-management system that will eventually support electronic filing and electronic case files in all dockets and all courts. In many parts, these rules retain the content of the former rules. In other parts, they amend the prior version or adopt entirely new content because of the shift to electronic case records.

Rule 1 contains a scope, purpose, and construction statement, explaining the joint responsibility of providing public access while protecting confidentiality. Rule 2 contains definitions. Rule 3 provides a general policy to grant access and delineates the custodian of records. Rule 4 provides the means of access to physical and electronic case and administrative records. Rule 5 sets out specific rights of access and includes an appendix listing the statutes and court rules providing specific rights of access. Rule 6 sets forth the exceptions to public access for case records, the inspection procedure, denial procedure, grievances, access during appeals, and access to statistical reports. The appendix to Rule 6 lists the statutes and court rules providing restrictions or prohibitions to public access. Rule 7 relates to filing of case records and states the responsibilities of the filer and the Judiciary. Rule 8 is about administrative records. Rule 9 sets out exceptions to the general access policy and contains the method and standards for granting access, sealing, or redacting records. Rules 10-13 are adopted from the Rules Governing Dissemination of Electronic Case Records. They contain provisions on electronic-case-record compilations, electronic-case-record reports, and electronic-data-dissemination contracts.

 

Order Promulgating Amendment to Rule 18(d) of the Vermont Rules for Family Proceedings

This Order was promulgated on February 4, 2019; effective April 8, 2019.

Rule 18(d)(1) is amended to clarify the process for appointment of a mediator when appointment has been ordered under subdivision (b). Under subparagraph (A), represented parties may choose the mediator. Under subparagraph (B), if the parties do not agree on a choice, or one or more of them is self-represented, the parties and the court may agree on a mediator from the Family Division Mediation Program’s list of mediators. If the parties cannot agree on an individual, the court may appoint a mediator from the list. If no mediator from the list is available, the court may appoint a mediator whose credentials are at least comparable to those for inclusion on the list. Those credentials include domestic-violence training.

 

Order Amending Rule 902 to the Vermont Rules of Evidence

This Order was promulgated on January 7, 2019; effective March 11, 2019.

The addition of Rule 902(13) reflects the enactment of 12 V.S.A. § 1913, a statute pertaining to the admissibility of evidence contained in blockchain records. Rule 902(13) mirrors the language and conditions set forth in § 1913(b)(1), a section declaring that blockchain records are self-authenticating.

 

Order Adding Rule 3(e) and Amending Rule 5(f) of the Vermont Rules of Probate Procedure

This Order was promulgated November 5, 2018; effective January 7, 2019.

Rule 3(e) is added to provide a “prisoner’s mailbox” procedure for the filing of a petition in a probate proceeding by an inmate confined in an institution. The amended rule is virtually identical to V.R.A.P. 4(f), adopted effective March 13, 2017, and V.R.C.P. 3(b), adopted effective August 13, 2018.

Rule 5(f) is redesignated as Rule 5(f)(1) and Rule 5(f)(2) is added to provide a “prisoner’s mailbox” procedure for the filing of documents after the petition in a probate proceeding by an inmate confined in an institution. The provision is virtually identical to the simultaneously added V.R.P.P. 3(e) providing the procedure for inmate filing of a petition. It is also substantially identical to V.R.C.P. 5(e)(4) and V.R.A.P. 25(a)(2)(C), promulgated effective August 13, 2018.

 

Order Promulgating Amendments to Rule 4(a) of the Vermont Rules of Admission to the Bar of the Vermont Supreme Court

This Order was promulgated November 5, 2018; effective January 7, 2019.

Rule 4(a) is revised to add two members to the Character and Fitness Committee, one attorney and one nonattorney. This change is being made to allow for more efficient processing of character and fitness report reviews during high-need times and for more members to be available for three-member panels. Because the overall size of the Board is increased from five to seven, Rule 4(a)(7) is revised to increase the quorum requirement from three to four.

 

Order Promulgating Amendments to Rule 26(b) of the Vermont Rules of Civil Procedure

This Order was promulgated on October 9, 2018; effective December 10, 2018.

The amendment corrects internal cross references to provisions of Rule 26(b) that were not corrected when the rule was amended by order of July 14, effective September 18, 2017.

 

Order Promulgating Amendments to Rule 1.1 of the Vermont Rules of Professional Conduct, Comments [6]-[8]

This Order was promulgated October 9, 2018; effective December 10, 2018.

The amendments track the ABA Ethics 20/20 changes to Model Rule 1.1 and its comments. Comments [6] and [7] are added to address the phenomenon of “outsourcing” work by lawyers and clarify how the duty of competence interrelates to such practices. Comment [6] is renumbered as Comment [8] and clarifies that the duty of competence includes having a general understanding of technology and its potential impact on client matters.

 

Order Promulgating Amendments to Rule 79.1(e) of the Vermont Rules of Civil Procedure, Rule 15(e) of the Vermont Rules for Family Proceedings, Rule 79.1(d) of the Vermont Rules of Probate Procedure, and Rule 45.1(d) of the Vermont Rules of Appellate Procedure

This Order was promulgated September 5, 2018; effective November 5, 2018. The amendments conform the rules with general revisions of Administrative Order No. 41, governing Licensing of Attorneys, effective May 15, 2017. In the revision and restyling of A.O. 41, former § 13, Admission Pro Hac Vice, is now designated as § 16 of A.O. 41.

 

Emergency Order Promulgating Amendment to Rule 3(k) of the Vermont Rules of Criminal Procedure

This Emergency Order was promulgated September 5, 2018; effective immediately.

Rule 3(k) was amended per 2017, No. 164, § 2 (Adj. Sess.) (effective July 1, 2018). The revision added provision for a prosecuting attorney, or a law enforcement officer, to contact a judicial officer for determination of temporary release following arrest; formerly, the rule had provided that a law enforcement officer was to make that contact. In addition, the enactment added that either the law enforcement officer or prosecuting attorney “shall provide the judicial officer with the information and affidavit or sworn statement required by Rule 4(a) of these rules.” The amended rule has spawned differences in interpretation over the meaning of “information” in the list of items required to be presented to the judicial officer for purposes of determining of temporary release.

The present emergency amendment provides clarification consistent with the purposes and intent of 2017, No. 164 (Adj. Sess.). The present amendment deletes the reference in the legislatively enacted amendment to “the information” (i.e., a charging document). The amendment maintains the mandate of the legislative enactment that an affidavit or sworn statement, consistent with Rule 4(a), be prepared and provided to the judicial officer, to enable an informed determination as to temporary release pending Rule 5 Initial Appearance. In addition, the amendment requires that the affidavit or sworn statement must include reference to the prosecuting attorney’s assessment of the offense(s) for which the defendant will be charged for purposes of determination of temporary release.

Comments on this emergency amendment should be sent by November 5, 2018, to Honorable Thomas Zonay, Chair of the Committee on the Rules of Criminal Procedure, at the following address:

Honorable Thomas A. Zonay, Chair
Advisory Committee on Rules of Criminal Procedure
Vermont Superior Court
Rutland Criminal Family Unit
9 Merchants Row
Rutland, VT 05701
Thomas.Zonay@vermont.gov

The Advisory Committee will review any comments received and advise the Court whether the amendments should be revised or made permanent.

 

Order Promulgating Amendments to Rule 23(d) of the Vermont Rules of Criminal Procedure

This Order was promulgated June 13, 2018; effective August 13, 2018. The amendment to Rule 23(d) is in response to the Supreme Court’s decision in State v. Breed, where the Court outlined the better practice when there may be a delay after the jury has been chosen but before trial. The rule is divided into three paragraphs. Paragraph (d)(1) requires that consent to a delay of commencement of trial must be by a signed writing filed with the court or in open court. Paragraph (d)(2) requires that after a delay of more than 24 hours, the court must provide an appropriate instruction. Paragraph (d)(3) clarifies that parties are entitled to supplemental voir dire on issues arising from the separation but must initiate a request.

 

Order Promulgating Amendments to Rule 17(a) of the Vermont Rules of Criminal Procedure

This Order was promulgated June 13, 2018; effective August 13, 2018.

The amendment Rule 17(a) expands the categories of persons who are authorized to issue subpoenas in criminal proceedings, either for attendance of witnesses or for production of documentary evidence and objects. This subdivision was amended effective February 20, 2017 to clarify that a subpoena is provided by the clerk, but actually issued by a judicial officer, subject to certain notice of rights on the part of persons subject to subpoena to object thereto, and the procedures for doing so. The amendment provides that subpoenas in criminal cases may now be issued either by a judicial officer, a court clerk, or a member of the Vermont bar. The amendment is intended to facilitate issuance of subpoenas in criminal cases, consistent with a defendant’s Compulsory Process guarantees, subject to the existing provisions of the rule establishing protections for persons and records that are the subject of subpoenas. The amendment is also intended to establish greater conformity with V.R.C.P. 45(a)(3), which has long provided that subpoenas in civil proceedings may be issued by either a judicial officer, a court clerk, or an attorney.

 

Order Promulgating Amendments to Rule 42 of the Vermont Rules of Criminal Procedure

This Order was promulgated June 13, 2018; effective August 13, 2018. The amendments to Rule 42, governing contempt process, reorganize and substantively amend the rule in three instances. A provision is added for notice to the defendant of the maximum penalty that may be imposed upon conviction. To facilitate appearance of counsel and assignment of counsel to represent the indigent defendant, a requirement is added to provide notice of the right to be represented by counsel and to make application for assignment of counsel. Specific provision is also made for the mode of appointment of a prosecuting attorney.

 

Order Promulgating Amendments to Rule 44.2(b) of the Vermont Rules of Criminal Procedure

This Order was promulgated June 13, 2018; effective August 13, 2018. The amendment to Rule 44.2(b) revises the rule in response to general revisions of Administrative Order No. 41, governing Licensing of Attorneys, effective May 15, 2017. Rule 44.2(b)(2), which formerly governed admission and practice of nonresident attorneys pending completion of law office study, or after such completion pending admission to the bar, is deleted as no longer necessary in view of A.O. 41’s abolition of the requirement of law office study as a condition of admission of attorneys to the Vermont bar.

 

Order Promulgating Amendments to Rules 3 and 5(e) of the Vermont Rules of Civil Procedure and Rule 25(a)(2)(C) of the Vermont Rules of Appellate Procedure

This Order was promulgated June 13, 2018; effective August 13, 2018.

The amendment redesignates the present Rule 3 as Rule 3(a) and adds Rule 3(b) to provide a “prisoner mailbox” procedure for the filing of a complaint in a civil action by an inmate confined in an institution. The amendment is virtually identical to V.R.A.P. 4(f), adopted effective March 13, 2017.

Simultaneous amendments adding V.R.C.P. 5(e)(4) and V.R.A.P. 25(a)(2)(C) establish an identical procedure for inmate filing of documents after the complaint that are required to be filed by V.R.C.P. 5 and papers after the notice of appeal required to be filed by V.R.A.P. 25.

 

Order Promulgating Amendments to Rule 45 of the Vermont Rules of Civil Procedure

This Order was promulgated June 13, 2018; effective August 13, 2018. The amendments to Rule 45 were made at the request of the Civil Division Oversight Committee to conform the rule to current practice and to assure uniformity among the clerks’ offices.

The amendment to Rule 45(a)(3) deletes “notary public” from the list of those empowered to issue a subpoena. Notaries do not have express power to issue subpoenas. See 24 V.S.A. § 445.

The amendment to Rule 45(a)(4) simplifies language and provides for prior or simultaneous service on the parties to avoid warning the witness before the parties can act. The amendment to Rule 45(b)(1) adds the requirement that witness fees be tendered with the subpoena to avoid issues of enforcement that might arise in the event of later nonpayment.
       
The amendment to Rule 45(f)(3)(A) clarifies the application of the interstate deposition and discovery provisions of the rule to attorneys not admitted in Vermont and unrepresented litigants.
       
The amendment to Rule 45(f)(3)(B) incorporates the provisions of former Rule 45(f)(6), substituting “motion” for “application” for consistency with the general provisions of the rules and adding the requirement that the practice on such motions is limited to Vermont-admitted attorneys because they are adversary proceedings.

The amendment to Rule 45(f)(3)(C) (formerly (B)) states that when a party submits a foreign subpoena judicial approval is now required before the clerk signs it. This provision and the amendment to paragraph Rule 45(f)(4) spell out that the clerk is to deliver the signed subpoena to the requesting party, who is responsible for service and payment of the witness fee. Former subparagraph (C) is redesignated (D).

Former Rule 45(f)(6) is deleted because it is now incorporated in Rule 45(f)(3)(B).

 

Order Promulgating Amendments to Rules 7(c), 9(b)(1), 11, 12(a), and 13(b) and (e) of the Vermont Rules of Admission to the Bar of the Vermont Supreme Court

This Order was promulgated June 13, 2018; August 13, 2018.

The amendment to Rule 7(c) allows for all institutions of higher education whose accreditor has been approved by the U.S. Department of Education (DOE) to satisfy the law office study (LOS) educational requirement. The amendment to Rule 7(c) also allows an applicant with an undergraduate degree from a foreign jurisdiction to satisfy the education requirement, provided the applicant can establish that such degree is equivalent to a bachelor’s degree from a DOE-approved institution.

The amendments to Rules 9(b)(1), 11, and 13(e) ensure consistency and clarity with regards to the permitted age of UBE and MPRE scores. The amendment to Rule 9(b)(1) clarifies that applicants must be active attorneys to waive the five-year limitation and that Board approval is not necessary for such a waiver. Also, the amendment to Rule 9(b)(1) allows for an extension to the time limitation for good cause.

The amendment to Rule 11 clarifies that the triggering date for the time limit for the age of the MPRE score is the date the applicant achieves a passing UBE score, consistent with the prior Board’s Notes. Also, the amendment to Rule 11 allows for an extension to the time limitation for good cause.

The amendment to Rule 12(a)(1) makes the time period to take the first-year CLE courses for admittees by examination consistent with the corresponding time period for admittees without examination in Rule 15. The amendment to Rule 12(a)(2) clarifies that for good cause the Board can grant an extension to the time limit for satisfying the first-year mentorship requirement.

The amendment to Rule 13(e) imposes a one-year outer limit for the MPRE score, consistent with the outer limit in Rule 11, and allows for an extension to the time limitation for good cause. The amendment to Rule 13(b) specifically permits concurrent applications for admission by transferred UBE score, meaning that an applicant can apply to sit for the UBE in a UBE jurisdiction other than Vermont and at the same time apply for admission by transferred UBE score to the Vermont bar, although the UBE score has not yet been earned.

 

Promulgation Order for A.O. 10, Application

This Order was promulgated on October 17, 2017, effective February 1, 2019. The amendment to section B(1) of the “Application of the Code of Judicial Conduct” removes the exemption for financial reporting for continuing part-time judges, which the Terminology section [3] defines as including “judges of probate and assistant judges.” The amendment will now require continuing part-time judges to submit a financial disclosure form to make their sources of income more transparent.  The rule change becomes effective February 1, 2019 to coincide with the beginning of the terms for part-time judges.