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

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

The proposed amendment conforms Rule 55 to reflect the needs of current practice. The proposal 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 proposed 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.

The proposed amendment deletes the first sentence of Rule 55(b)(1) requiring an application to the court for a default judgment because it is superfluous in light of the provision for a motion added to subdivision (a). The proposed 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 proposed amendment to Rule 55(b)(2) eliminates the formal reference to entry of judgment by the clerk. The proposal changes the time for notice in Rule 55(b)(4) from five to seven days. The proposal makes other minor wording changes in Rule 55(b) and (c) for consistency.

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

Comments on these proposed amendments should be sent by February 19, 2019, to Allan Keyes, Esq., Chair of Advisory Committee on the Vermont 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 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