The following Proposed Amendments are proposed by the Rules Committees and have not been reviewed by the Supreme Court.

 

Proposed Amendments to Rules 8(b)(2), 9(b), 11, 12(a), 13(d), 17, and 18(c) of the Vermont Rules of Admission to the Bar of the Vermont Supreme Court

The proposed amendment to Rule 8(b)(2) clarifies what factors the Board of Bar Examiners considers when determining whether to waive the requirement that an applicant who has graduated from a foreign law school also be admitted to the bar in the foreign jurisdiction.

The proposed amendment to Rule 9(b)(1) clarifies what factors the Board of Bar Examiners considers when determining whether to waive the requirement that the bar exam be taken within five years of graduating from law school or completing the LOS Program.  The proposed amendment to wording in Rule 9(b)(3) regarding the passing UBE score is also corrected to specify that an Applicant must receive a score of 270 or higher.

The proposed amendment to Rule 11 regarding the MPRE passing score is corrected to clarify that an Applicant must receive a score of 80 or higher.

The proposed amendment to Rule 12(a)(2) allows applicants to commence their mentorship prior to admission to the bar, consistent with the clerkship that was required prior to the adoption of the UBE. Also, references in the Rule to the “the Board of Continuing Legal Education” are changed to “the Board of Mandatory Continuing Legal Education” to accurately reflect the name of the Board.

The proposed amendment to Rule 13(d) clarifies what factors the Board of Bar Examiners considers when determining whether to waive the requirement that the bar exam must be taken within five years of graduating from law school or completing the LOS Program.

The proposed amendment to Rule 17 amends the opening sentence of the rule to correct the cross reference to Rule 16.

The proposed amendment to Rule 18(c) requires an applicant to file a notice of appeal within 30 days of the date of a decision rather than 30 days of date the decision was mailed. This reflects the practice of notifying applicants (via electronic means) of the panel’s decision on the same day the decision issues.

Comments on these proposed amendments should be sent by January 18, 2022, to Andrew Strauss, Licensing Counsel of the Office of Attorney Licensing, at the following address:

 

Andrew Strauss, Licensing Counsel

Andrew.Strauss@vermont.gov

 

Proposed Order Amending Rules 2(a)(2) and (3), 6(a) and (c)(2)(3), 6.1(a) and (c)(1), and 8(h) of the Vermont Rules for Family Proceedings

Rule 2(a)(2) is amended to eliminate the reference to V.R.C.P. 78(a), (Motion Days) which was abrogated by order of June 7, effective August 9, 2021. Rule 2(a)(3) is amended to replace the reference to V.R.C.P. 78(b) with a reference to V.R.C.P. 7(b)(4) (Memorandum in Opposition), added by that order and embodying the provisions of former V.R.C.P. 78(b)(1) in revised form.

Provisions of Rule 6 and 6.1 are deleted because the probate rules now contain provisions on the appointment of guardians and attorneys in probate proceedings.  See V.R.P.P. 80.9 (Representation by Guardians ad Litem of Minors) and V.R.P.P. 80.10 (Representation by Attorneys and Guardians ad Litem of Adults in Specified Proceedings). In addition, the reference to the title of 18 V.S.A. Chapter 206 is amended to be consistent with legislation enacted in 2014.  2013, No. 96 (Adj. Sess.), § 114.

Rule 6.1(c)(1) is amended to replace the reference to V.R.C.P. 78(b) (Disposition of Written Motions With or Without Hearing), which was abrogated by order of June 7, effective August 9, 2021, with a reference to V.R.C.P. 7(b)(6) (Evidentiary Hearings) added by that order and embodying its relevant provisions in revised form.

Rule 8(h) is amended to eliminate the reference to V.R.C.P. 78 (Motion Day), which was abrogated by order of June 7, effective August 9, 2021. All relevant provisions of the former V.R.C.P. 78 are now incorporated in V.R.C.P. 7.

Comments on these proposed amendments should be sent by January 18, 2022, to Hon. Michael Kainen, Chair of the Advisory Committee on the Rules for Family Proceedings, at the following address:

 

Hon. Michael Kainen, Chair

Advisory Committee on the Rules for Family Proceedings

Michael.kainen@vermont.gov

 

Proposed Order Amending Rule 18(d)(2) of the Vermont Rules for Family Proceedings

The proposed amendment to Rule 18(d)(2) clarifies that mediation can take place either in person or using remote technology.

A.O. 49 was initially issued March 16, 2020, in response to the state of emergency resulting from the pandemic. Paragraph 13 of A.O. 49 authorized remote participation in mediation by video or telephone without a stipulation or court order. Further, in anticipation that at some point A.O. 49 would no longer be necessary, the Supreme Court requested that the Advisory Committee on Rules for Family Proceedings consider whether there should be a permanent change to Rule 18 related to remote participation. After considering responses from attorneys who practice family law to a Vermont Bar Association survey and responses from family mediators, the Committee concluded that both in person and remote participation in mediation should be permissible in family proceedings subject to V.R.F.P. 18 at the discretion of the mediator.

Comments on these proposed amendments should be sent by January 18, 2022, to Hon. Michael Kainen, Chair of the Advisory Committee on the Rules for Family Proceedings, at the following address:

 

Hon. Michael Kainen, Chair

Advisory Committee on the Rules for Family Proceedings

Michael.kainen@vermont.gov

 

Proposed Amendment to V.R.C.P. 50(b)

The proposed amendment to V.R.C.P. 50(b) is in response to the Vermont Supreme Court’s request in Blondin v. Milton Town School District, 2021 VT 2, ¶ 26 n. 10, that the Civil Rules Committee consider whether that rule “should be amended to be consistent with the federal rule and potentially to allow consideration of pure questions of law on appeal absent renewal following judgment.”

V.R.C.P. 50(b) as originally adopted in 1971 was identical to F.R.C.P. 50(b) as it then stood. In 1988 the Vermont Rule was amended to add a renewal requirement.  The Reporter’s Notes indicated that this renewal requirement was implicit in Federal Rule 50(b).  The U.S. Supreme Court in Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 407 (2006), held that failure to renew a pre-verdict motion for judgment as a matter of law under Rule 50(b) prevented appellate review of a sufficiency of evidence challenge. The proposed amendment of V.R.C.P. 50(b) adopts an interpretation of Unitherm advanced by several U.S. Courts of Appeals by limiting the requirement to renew the motion to sufficiency-of-the-evidence questions. The effect of the amendment is to allow case-by-case development of the line between sufficiency-of-the-evidence questions and pure questions of law.

Comments on these proposed amendments should be sent by December 15, 2021, to Allan Keyes, Esq., Chair of the Advisory Committee on the Rules of Civil Procedure, at the following address:

Allan Keyes, Esq., Chair

Advisory Committee on the Rules of Civil Procedure

ark@rsclaw.com

 

Proposed Order Amending Rule 66 of the Vermont Rules of Probate Procedure

The proposed amendments to Rule 66 reflect and clarify current practice regarding inventories and accounts.

Proposed Rule 66(b) is new. Rule 66(b)(1) contains a general requirement that an estate inventory must contain a description and value of the decedent’s assets and sets forth specific requirements for the content of inventories in the areas of real property, mobile homes, motor vehicles, firearms, and financial institution accounts. Former Rules 66(b) and (c) are redesignated (c) and (d) without change. New Rule 66(e) provides accounting standards consistent with 14 V.S.A. §§ 1055, 1057. Former Rules 66(d)-(f) are redesignated (f)-(h) without change.  Rule 66(i) is new. It spells out a process that enables a judge to deal with an inadequately prepared or presented inventory or account or other failure to comply with the provisions of Rule 66(a)-(h) by providing for their preparation “by a licensed professional with experience in fiduciary accounting.”

Comments on these proposed amendments should be sent by December 15, 2021, to Hon. Jeffrey Kilgore, Chair of the Advisory Committee on the Rules of Probate Procedure, at the following address:

 

Hon. Jeffrey Kilgore

Advisory Committee on the Rules of Probate Procedure

Jeffrey.Kilgore@vermont.gov

 

Proposed Order Amending Rules 5(c) and (d), 6(b)(20), (21), and (22) and Abrogating and Replacing Rule 9 of the Vermont Rules for Public Access to Court Records

The proposed amendments to Rule 5(c) and (d) clarify that the specific right of access to records for lawyers and guardians ad litem applies unless there is a restriction on access, such as for records containing trade secrets or other confidential information that is sealed from particular parties.

Proposed new Rule 6(b)(20) adds an exception to public access for motions for ex parte relief until there is a court decision on the motion.  Proposed new Rule 6(b)(21) adds an exception to public access for records subject to a motion for in camera review subject to the court’s decision.  Proposed new Rule 6(b)(22) adds an exception to public access for records containing trade secrets or other confidential business information. 

The proposal abrogates and replaces Rule 9, which concerns limiting or granting access to court records.  Under the proposed amended version, a hearing on a motion to seal or redact is not required unless there is a request or an objection to sealing or redacting or the court orders a hearing.  The proposed rule deletes reference to standing and instead provides a practical description of persons who are entitled to notice and an opportunity for hearing.  The proposed rule describes the circumstances in which all parties to a case may stipulate to the sealing or redacting of a document or documents, subject to the court’s finding of good cause.  The proposed rule also contains a provision specifying that a party can seek permission to appeal ruling on a motion to seal or for access through V.R.A.P. 5.1.

Comments on these proposed amendments should be sent by November 15, 2021, to Hon. Timothy B. Tomasi, Chair of the Advisory Committee on the Rules for Public Access to Court Records, at the following address:

Honorable Timothy B. Tomasi, Chair

Advisory Committee on the Rules for Public Access

Timothy.Tomasi@vermont.gov

 

Proposed Order Abrogating Rule 6(e) of the Vermont Rules of Civil Procedure and Rule 26(c) of the Vermont Rules of Appellate Procedure and Amending V.R.A.P. 26(d)(1) and 31(a)

The proposed amendment abrogates both V.R.C.P. 6(e) and V.R.A.P. 26(c).  These rules provide an additional 3 days for certain kinds of service.  Abrogation is overdue, given the general simplification of counting time that occurred when the “day is a day” method of counting was adopted in 2018.  Further, the Vermont trial courts and the Vermont Supreme Court are now fully operational under the Odyssey File and Serve system and nonelectronic service is limited. Timing difficulties caused by electronic filing outside of normal business hours, or arising in the limited number of cases involving nonelectronic service, can be addressed case by case by the court.

The proposed amendment to Rule 26(d)(1) extends the maximum limits on times to which filing times for briefs may be extended by stipulation. These time limits are identical to those in the Federal Rules of Appellate Procedure, which were put in place when the federal three-day rule was eliminated for electronic filing. Now that electronic filing has been adopted for appeals to the Vermont Supreme Court, and the three-day rule is proposed to be eliminated, the longer time periods are appropriate for Vermont.

The proposed amendment to Rule 31(a) extends the serving and filing times for principal and reply briefs. The proposed time for the appellant’s principal brief is increased from 30 to 40 days. The proposed time for appellee’s principal brief is increased from 21 to 30 days, and that for reply briefs is increased from 14 to 21 days.

Comments on these proposed amendments should be sent by November 15, 2021, to Allan Keyes, Esq., Chair of the Advisory Committee on the Rules of Civil Procedure, at the following address:

Allan Keyes, Esq., Chair

Advisory Committee on the Rules of Civil Procedure

ark@rsclaw.com

 

Proposed Order Amending V.R.C.P. 43(e) and 54(d)(2)(C)

The proposed amendment to Rule 43(e) replaces the reference to V.R.C.P. 78(b)(2) (evidence on motions if requested), which was abrogated by order of June 7, effective August 9, 2021, with a reference to V.R.C.P. 7(b)(6), added by that order and embodying the provisions of V.R.C.P. 78(b)(2) in revised form.

The proposed amendment to Rule 54(d)(2)(C) replaces the reference to V.R.C.P. 78 (Motion Day), which was abrogated by order of June 7, effective August 9, 2021, with a reference to V.R.C.P. 7(b)(4)-(6) added by that order and embodying its relevant provisions in revised form.

Comments on these proposed amendments should be sent by October 13, 2021, to Allan Keyes, Esq., Chair of the Advisory Committee on the Rules of Civil Procedure, at the following address:

Allan Keyes, Esq., Chair

Advisory Committee on the Rules of Civil Procedure

ark@rsclaw.com

 

Proposed Order Amending Rules 5 and 11 of the Vermont Rules of Civil Procedure

The proposed amendments to Rule 5 respond to the Supreme Court’s request to make permanent certain provisions of Administrative Order 49 that permit filing and serving certain documents by email. See A.O. 49, ¶ 6. The proposal also reflects the extension of the Odyssey case management system and Odyssey File and Serve for electronic service and filing to all units of the Superior Court and to the Supreme Court.

Rule 5(a) is carried forward and sets forth the service requirements for all papers after the summons and complaint or for which the rules may provide another mode of service. Proposed Rule 5(b)(1) provides five required or permitted methods of service.  Subparagraph (1)(A) makes clear that service between registered electronic filers must be made through the electronic filing system, or by another method agreed between the parties. Under subparagraph (1)(B), nonelectronic filings, or filings to be served by or on non-efilers, or on efilers not properly registered, may be served by the three traditional methods—delivery, mailing, or leaving with the clerk—or by email.  The five methods are defined in paragraph (2).

Under the proposed rule, unregistered self-represented parties, other participants, and attorneys, who are permitted to do so by the 2020 Vermont Rules for Electronic Filing, may file by delivery, ordinary mail, or email. The email address for each unit of the Superior Court can be found on the vermontjudiciary.org website and may change from time to time. Self-represented parties and lawyers are responsible for checking the email filing guidance on the website before filing by email and following the standards for email filing.

Proposed new Rule 11(e) is added at the suggestion of the Supreme Court to make permanent the provision of Administrative Order 49, ¶ 17, which permits the use of remote means to obtain attestations of parties. Paragraph (1) permits a party required to make a statement under oath to file instead a declaration that the statement is true, subject to the penalty of perjury under 13 V.S.A. § 2904(b), or to judicial sanction. Paragraph (3) makes clear that the provision does not apply to oath or notarization requirements provided by statute. Rule 11(e) is a narrower version of 28 U.S.C. §1746, which applies to federal statutory requirements as well.

Comments on this proposed amendment should be sent by October 1, 2021, to Allan Keyes, Esq., Chair of the Advisory Committee on the Rules of Civil Procedure, at the following address:

Allan Keyes, Esq., Chair
Advisory Committee on the Rules of Civil Procedure
ark@rsclaw.com

 

Proposed Order Amending V.R.C.P. 3.1, 4, 56, and 84, Abrogating the Appendix of Forms to those Rules

The proposed amendment to Rule 3.1(b)(2) substitutes “the applicant’s” for “household” to achieve internal consistency of usage throughout Rule 3.1 and to provide clear and consistent guidance to the Court Administrator in the development of forms to implement the rule. The party seeking waiver of fees and payment of costs is denoted “the applicant” elsewhere in the rule. See Rule 3.1(a), (b), (b)(1), (4), (c). The retention of “household” to describe income to be counted in paragraph (b)(2) when the rule was generally amended in 2020 was inconsistent with the general purpose of the 2020 amendments and created a confusing ambiguity in the application of the rule. See Reporter’s Notes to 2020 amendments.

The proposed amendments to Rules 4(b) and 4(l)(3)(D) and (H) are for consistency with the proposed amendment of V.R.C.P. 84 and the proposed abrogation of the Appendix of Forms consistent with the Supreme Court’s transfer to the Court Administrator of the authority to amend and adopt forms and publish them on the Judiciary website.

The proposed amendments to Rule 56 clarify the requirements for motions for summary judgment, oppositions to summary judgment motions, and motions in reply to opposition. The purpose is to separate out statements of often immaterial or nonresponsive additional facts and to discourage the not-uncommon practice of obfuscating the terms of a reply by adding a host of such additional facts. No substantive change is intended.

Rule 84 is proposed to be amended concurrently with the abrogation of the Appendix of Forms. Rule 84 and the Appendix of Forms were originally adopted with the Vermont Rules of Civil Procedure in 1971 on the model of the 1938 Federal Rules of Civil Procedure. For at least five years, the Vermont Court Administrator’s office has been publishing new and amended forms on the Judiciary website in a “Forms Library,” which now contains a great number and wide variety of detailed forms addressing matters beyond the scope of those in the former Appendix and published in a format appropriate for electronic filing. See https://www.vermontjudiciary.org/forms-library. The proposed amendment of Rule 84 establishes the Judiciary website as the primary source of forms.

The Appendix of Forms is abrogated to implement the simultaneous amendment of V.R.C.P. 84 establishing the Judiciary website as the location for publication and revision of Civil forms.

Comments on these proposed amendments should be sent by October 4, 2021, to Allan Keyes, Esq., Chair of the Advisory Committee on the Rules of Civil Procedure, at the following address:

Allan Keyes, Esq., Chair

Advisory Committee on the Rules of Civil Procedure

ark@rsclaw.com

 

Proposed Order Amending Rule 16.3(b)(3) of the Vermont Rules of Civil Procedure

The amendment to Rule 16.3(b)(3) is proposed pursuant to the Supreme Court’s directive under Administrative Order 49, ¶ 13, that the Civil Rules Advisory Committee “consider whether a permanent change to the rules relating to participation in remote mediation is advisable.”  The amendment retains the basic structure of Rule 16.3(b) that in-person attendance is the default position, with an option for remote mediation if the parties so stipulate or the court orders it (or excuses a party) for good cause.

Comments on this proposed amendment should be sent by September 3, 2021, to Allan Keyes, Esq., Chair of the Advisory Committee on the Rules of Civil Procedure, at the following address:

Allan Keyes, Esq., Chair

Advisory Committee on the Rules of Civil Procedure

ark@rsclaw.com

 

Proposed Order Adding Rule 11(a)(4) to the Vermont Rules of Criminal Procedure

Proposed Rule 11(a)(4) provides an additional procedure whereby a defendant may preserve a post-conviction challenge to a predicate conviction while pleading guilty or no contest to an enhanced offense, where the State has not consented to preservation of the challenge under the terms of Rule 11(a)(3). The proposed amendment provides that, with the approval of the court, a defendant may preserve a PCR challenge to a predicate conviction when entering a plea of guilty or nolo contendere even in cases where there is no plea agreement, or consent to the preservation otherwise given by the State, by stating on the record at the change-of-plea hearing an intent to challenge one or more of the convictions through a PCR petition, specifically identifying the convictions to be challenged, and stating the basis for the challenges.

Comments on this proposed amendment should be sent by October 4, 2021, to Hon. Thomas A. Zonay, Chair of the Advisory Committee on Rules of Criminal Procedure, at the following address:

Honorable Thomas A. Zonay, Chair

Advisory Committee on Rules of Criminal Procedure

Thomas.Zonay@vermont.gov

 

 

Proposed Amendments to Rules 9.1 and 55(c)(7) of the Vermont Rules of Civil Procedure and Rules 2(a), 3, and 8(c) of the Vermont Rules of Small Claims Procedure

The proposed amendments to V.R.C.P. 9.1 implement the recommendation of the Civil Division Oversight Committee that credit card debt collection actions and other actions brought by a debt-buyer rather than the original creditor be removed from small claims and brought in the civil division. Simultaneous amendments to V.R.C.P. 55(c)(7) and V.R.S.C.P. 2 and 3 are being proposed to accomplish this purpose.

The proposal is made based on the growing complexity of these cases, the inconsistency in how cases are handled by the lawyers serving as Acting Judges in small claims cases, and the difficulty of using lawyers as Acting Judges in these cases with the new case management system.  

The proposed amendment to Rule 8(c) eliminates the possibility of arrest as a result of contempt in small claims proceedings, in keeping with the goal of avoiding the imposition of such severe sanctions for failure to pay debts. See, e.g., https://www.aclu.org/report/pound-flesh-criminalization-private-debt.

Comments on these proposed amendments should be sent by October 19, 2020, to Allan Keyes, Esq., Chair of the Advisory Committee on the Rules of Civil Procedure, at the following address:

Allan Keyes, Esq., Chair
ark@rsclaw.com

Proposed Order Amending Rule 807 of the Vermont Rules of Evidence

This proposed amendment responds to the Vermont Supreme Court’s decision in State v. Bergquist, 2019 VT 17, __ Vt. __, 211 A.3d 946, by correcting Rule 807’s constitutional deficiencies described therein. The proposed amendments to subdivisions (c) and (f) ensure the Rule comports with the minimum constitutional standard set in Maryland v. Craig, 497 U.S. 836 (1990), as interpreted in Bergquist.

In criminal cases, the rule balances an important public policy interest—protecting certain witnesses in defined, vulnerable categories, from the trauma of testifying—against the defendant’s constitutional right to confront accusers. To comport with the Sixth Amendment, as interpreted in Craig, the proposed amendment requires the court to make its findings at least by preponderance of the evidence, without precluding argument for the application of a stricter standard of evidence.  To make the showing of necessity for these proceedings, the proposal requires the State to show that the witness would be traumatized not by the courtroom or other aspects of providing testimony, but by the presence of the defendant (or by defendant’s image when subdivision (e) applies). The State must also show that the witness would suffer a level of emotional trauma that is more than mere nervousness, excitement, or some reluctance to testify.  

The proposed amendment to subdivision (a) corrects an unintended effect of an amendment made in 2015. The purpose of that amendment was to make the rule consistent with the Legislature’s efforts to eliminate offensive language from the Vermont Statutes, however, the term “psychiatric disability” provided by 1 V.S.A. § 147 encompasses a wider arc of impairments than the original term used by the Rule, which was “mental illness,” as still defined in 18 V.S.A. § 7101(14). Thus, the language is amended to again refer to “mental illness.”

Comments on these proposed amendments should be sent by February 10, 2020, to Elizabeth Miller, Esq., Chair of the Advisory Committee on Rules of Evidence, at the following address:

Elizabeth Miller, Esq.
Dunkiel Saunders
91 College Street
Burlington, VT  05401
emiller@dunkielsaunders.com