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

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

Proposed Order Amending Rule 32(c)(4) of the Vermont Rules of Criminal Procedure

The proposal amends Rule 32(c)(4) 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. These decisions address the necessity for procedures requiring parties to object to recommended probation conditions.  The proposed amendment makes the rule consistent with, yet not as expansive as, the provisions of Federal Rule of Criminal Procedure 32(f)(1), which requires specific written objection not only to factual assertions pertinent to sentence, but to all material information, sentencing guideline ranges, and policy statements in presentence investigation reports.

The proposal amends subparagraph (c)(4)(A) to require written objections to PSI content in 7 instead of 5 days.  The proposed amendment also includes an express requirement that copies of any written objections be provided to the opposing party.

The proposal adds new subparagraph (c)(4)(C), which requires 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 proposed amendment is intended to expressly provide a defendant with an opportunity to articulate objection to conditions of probation that may not have reasonably featured at all in the course of 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.

Comments on this proposed amendment should be sent by January 6, 2020, 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
Vermont Superior Court
Orange Unit
5 Court Street
Orange, VT 05038
Thomas.zonay@vermont.gov

Proposed Order Amending Rules 3, 7, 9, 10 of the Vermont Rules of Small Claims Procedure

The proposed amendment to Rule 3, along with simultaneous proposed amendments to Rules 7, 9, and 10 address the lack of a current requirement that the plaintiff serve the defendant with a small claims default judgment.

Under the existing rules, because it is a default judgment 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 file a motion 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, the proposed amendment to Rule 3(f) requires service by sheriff or other authorized person and the filing of proof of service in every case before enforcement proceedings are taken. Rule 3(g) is amended to conform to the amendment of Rule 3(f).

The proposal amends Rule 7(a)(1)(A) and (c) to conform to the simultaneous amendment of Rule 3(f).

The proposed amendments to Rule 9(a), (b)(1), and (c) incorporate 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).

The proposed amendment to 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.

Comments on these proposed amendments should be sent by January 6, 2020, to Allan Keyes, Esq., Chair of the Advisory Committee on the Rules of Civil Procedure, at the following address:

Allan Keyes, Esq., Chair
Civil Rules Committee
Ryan Smith & Carbine, Ltd.
P.O. Box 310
Rutland, VT  05702 0310
ark@rsclaw.com

Proposed Order Amending Rule 6(15) and (26) of the Rules of the Supreme Court for Disciplinary Control of Judges

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

Comments on these proposed amendments should be sent by January 6, 2020, 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

Proposed Order Amending 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 VT Rules of Probate Procedure

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

Comments on these proposed amendments should be sent by January 6, 2020, 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

Proposed Order Amending Rule 804a of the Vermont Rules of Evidence

The proposed amendment to Rule 804a reflects the Legislature’s efforts to eliminate offensive language, and to make this rule’s language more consistent with the language of Rule 807.  The proposal maintains 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 intended to be applied narrowly.

Comments on this proposed amendment should be sent by December 2, 2019, 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

Proposed Order Abrogating and Replacing the Vermont Rules for MCLE

The proposed 2019 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 (“Model Rule”).  The Board’s Notes attempt to identify the relevant prior rules and to point out where the proposed new rules reflect a significant substantive change from the prior rules.

Some of the proposed changes include the following.  The proposal increases the total number of credit hours per reporting period from 20 to 24.  The prior distinction between live and self-study programming is replaced with three types of programming and definitions of those are provided.  In addition to the prior ethics requirement, the proposal requires attorneys to complete one credit hour of attorney wellness and one of diversity and inclusion programming in a reporting period.  The proposal adds a carryover provision so that attorneys can use excess credit from the second year of the reporting period in the next reporting period.  The proposal gives the MCLE Board the authority to audit attorneys and requires attorneys to keep records for two reporting periods.

Comments on these proposed amendments should be sent by December 2, 2019, to Andrew Strauss, Licensing Counsel of the Office of Attorney Licensing, at the following address:

Andrew Strauss, Licensing Counsel
Office of Attorney Licensing
Costello Courthouse
32 Cherry Street, Suite 213
Burlington, VT  05401
Andrew.Strauss@vermont.gov

Proposed Order Amending Rule 62(a)(3)(A) of the Vermont Rules of Civil Procedure

The proposed 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 proposed 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, consistent with the original intent of paragraph (3) to provide “a single uniform procedure for final judgements in possessory all actions.” See Reporter’s Notes to 1996 amendment adding Rule 62(a)(3).

Comments on this proposed amendment should be sent by December 2, 2019, to Allan Keyes, Esq., Chair of the Advisory Committee on Rules of Civil Procedure, at the following address:

Allan Keyes, Esq., Chair
Civil Rules Committee
Ryan Smith & Carbine, Ltd.
P.O. Box 310
Rutland, VT  05702 0310
ark@rsclaw.com

Proposed Order Adding Rule 4.3(f) and Rule 6.2 to the Vermont Rules for Family Proceedings

The proposed 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.  Paragraph (1) provides that V.R.C.P. 4.1 (attachment) and 4.2 (trustee process) apply in the Family Division and may be used to enforce such judgments or orders with two exceptions.

The proposed 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 proposed 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 proposed rule allows documents to be filed electronically in these proceedings.

Comments on these proposed amendments should be sent by December 2, 2019, to Hon. Michael Kainen, Chair of the Advisory Committee on Rules for Family Proceedings, at the following address:

Hon. Michael Kainen, Chair
Windham Civil Division
PO Box 207
Newfane, VT  05345
Michael.kainen@vermont.gov

Proposed Order Promulgating the 2019 Vermont Rules for Electronic Filing

The proposed 2019 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 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 proposed 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 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.

Comments on these proposed amendments should be sent by August 19, 2019, to Hon. Walter M. Morris, Reporter for the Special Advisory Committee on Rules for Electronic Filing, at the following address:

Hon. Walter M. Morris, Jr.
Vermont Supreme Court
109 State Street
Montpelier, VT  05609-0801
walter.morris@vermont.gov

Proposed Amendments to Rules 3, 4, and 5 of the VRECP, Rules 4, 10, 44.2, 45, 77, and 79.1 of the VRCP, Rules 4 and 79.1 of the VRPP and Rule 15 of the VRFP

The proposed amendments to various rules are designed to conform rules to the new case management system and concurrent 2019 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 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 2019 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 proposed amendments clarify when cross references in the environmental, civil, probate, and family rules are to the 2010 Vermont Rules for Electronic Filing.

Comments on these proposed amendments should be sent by August 19, 2019, to Hon. Walter M. Morris, Reporter for the Special Advisory Committee on Rules for Electronic Filing, at the following address:

Hon. Walter M. Morris, Jr.
Vermont Supreme Court
109 State Street
Montpelier, VT  05609-0801
walter.morris@vermont.gov

Proposed 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

The proposed 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 proposed 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 proposal uses “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.” The proposal amends various rules to clarify when references are to the 2010 Vermont Rules for Electronic Filing.

The proposal amends Rules 28 and 30 to specify how to refer to the record in cases filed under the 2019 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 2019 Vermont Rules for Electronic Filing. In cases with no electronic case file, a printed case remains a requirement. 

Comments on these proposed amendments should be sent by August 19, 2019, to Hon. Walter M. Morris, Reporter for the Special Advisory Committee on Rules for Electronic Filing, at the following address:

Hon. Walter M. Morris, Jr.
Vermont Supreme Court
109 State Street
Montpelier, VT  05609-0801
walter.morris@vermont.gov

Proposed 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

The proposed amendments to V.R.C.P. 5 and V.R.P.P. 5 are made to conform the rules to the proposed 2019 Vermont Rules for Electronic Filing.  The proposed amendments explain the certificate of service requirements when documents are filed under the new rules.  The proposal clarifies when references are to the 2010 Vermont Rules of Electronic Filing.  The proposal also cross references the Vermont Rules for Public Access to Court Records.

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

Comments on these proposed amendments should be sent by August 19, 2019, to Hon. Walter M. Morris, Reporter for the Special Advisory Committee on Rules for Electronic Filing, at the following address:

Hon. Walter M. Morris, Jr.
Vermont Supreme Court
109 State Street
Montpelier, VT  05609-0801
walter.morris@vermont.gov

Proposed Order Amending Rule 10 of Administrative Order No. 9

This proposed amendment grew out of the work of the Vermont Commission on the Well-Being of the Legal Profession. The proposed amendment authorizes bar counsel to refer a disciplinary complaint to a lawyers’ assistance program, which is consistent with an approach that emphasizes prevention, self-care, and treatment. It is also consistent with bar counsel’s general authorization to seek to resolve matters via nondisciplinary methods or to refer complaints to nondisciplinary dispute resolution programs.

Comments on these proposed amendments should be sent by March 11, 2019 to Michael Kennedy, Bar Counsel, at the following address:

Michael Kennedy, Bar Counsel
Professional Responsibility Program
32 Cherry Street, Suite 213
Burlington, VT  05401
Michael.Kennedy@vermont.gov

Proposed Amendment to Rule 77(e) of the Vermont Rules of Probate Procedure

The proposed amendment conforms Rule 77(e)(1) to the provisions of 14 V.S.A. § 2(c) as amended by Act 195 of 2017 (Adj. Sess.), §1.  The proposed amendment conforms Rule 77(e)(2) to a change in 14 V.S.A. §2 (e) also enacted by Act 195 of 2017 (Adj. Sess.), § 1, which provided that the prohibition of public inspection of the index of wills, like the prohibition of public inspection of wills, applies “during the life of the testator.” The proposed amended rule is intended to make clear that the death of a testator does not open the index to public inspection but authorizes the register to make the limited disclosure of information in it concerning a particular testator permitted by Rule 80.4(b).

Comments on this proposed amendment should be sent by January 7, 2019, to Hon. Jeffrey Kilgore, Chair of Advisory Committee on the Vermont Rules of Probate Procedure, at the following address:

Hon. Jeffrey Kilgore
Washington Probate Division
65 State Street
Montpelier, VT  05602
Jeffrey.Kilgore@vermont.gov