The following Proposed Amendments are proposed by the Rules Committees and have not been reviewed by the Supreme Court.
Proposed Order Amending Rule 6(b)(5) of the Vermont Rules for Public Access to Court Records
The proposed amendment to Rule 6(b)(5) clarifies the existing rule in light of statutory changes governing expungement and sealing of criminal-history records 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 proposed 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 remains publicly accessible.
The proposed amendment clarifies that until all charges on a docket are expunged, the case file remains publicly accessible. Note that as to sealing and expungement and the timing, pursuant to 13 V.S.A. § 7603(a)(2) and (g), the parties may now stipulate to sealing or expungement of a criminal history record that is otherwise subject to the provisions of Rule 6(b)(5) at any time.
Comments on this proposed amendment should be sent by July 6, 2020, to Hon. Timothy Tomasi, Chair of the Advisory Committee on the Rules for Public Access to Court Records, at the following address:
Honorable Timothy B. Tomasi, Chair
Vermont Supreme Court
109 State Street
Montpelier, VT 05609-0701
Proposed Order Amending Rules 26, 34, and 78 of the Vermont Rules of Civil Procedure
The proposed 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 proposed 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.” See Federal Advisory Committee’s Notes to 2015 Amendment.
The proposed amendment to Rule 78(b)(1) adds language taken from Rule 7(a)(3) of the Rules of the United States District Court for the District of Vermont regarding the time for filing a memo in opposition to a motion. The proposal changes the time to respond to a dispositive motion—for summary judgment or dismissal—from 14 days to 30 days. The proposed 30-day response period for all dispositive motions would provide consistency with the existing response period for motions for summary judgment under V.R.C.P. 56(b), as well as with the District Court Local Rule.
Comments on these proposed amendments should be sent by April 13, 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
Proposed Order Amending Rule 4.3(b) of the Vermont Rules for Family Proceedings
The proposed amendment to Rule 4.3(b) deletes former paragraph (1) providing for a motion by a nonparty for relief from a parentage judgment. The proposal 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).
Comments on these proposed amendments should be sent by April 13, 2020, 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
Proposed Amendments to A.O. 9
The proposed 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 proposal 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 proposal assigns this task to newly created Screening Counsel. The proposed rules contain a confidentiality provision, specifying that information related to the operation of the Bar Assistance Program is confidential.
Comments on these proposed amendments should be sent by April 13, 2020, to Michael Kennedy, Bar Counsel, at the following address:
Michael Kennedy, Bar Counsel
Professional Responsibility Program
32 Cherry Street, Suite 213
Burlington, VT 05401
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.
91 College Street
Burlington, VT 05401