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

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 Order Amending Rule 7 of the Vermont Rules of Criminal Procedure

The proposed addition of subdivision (d) addresses amendment of an indictment or information prior to trial, including late-stage amendments when a case has been scheduled for final pre-trial conference, jury selection, and trial.  The proposed amendment allows the court on its own or in response to defendant’s motion to strike the amended information or indictment if it would cause undue delay or if defendant’s substantial rights would be prejudiced. 

Comments on this proposed amendment should be sent by June 8, 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 Order Amending V.R.C.P. 7 and 56 and abrogating V.R.C.P. 78

The proposed amendment to V.R.C.P. 7(b) consolidates and modernizes provisions of the civil rules governing motions. Pertinent provisions of V.R.C.P. 78, which are proposed to be simultaneously abrogated, are incorporated in this proposed amendment.  The proposed amendment provides a procedure for responding not only to a motion for summary judgment under V.R.C.P. 56, but to all dispositive motions, including motions to dismiss for untimely service or filing of the complaint under V.R.C.P. 3, for judgment on a claim or on the pleadings under V.R.C.P. 12(b) or (c), for judgment as a matter of law under V.R.C.P. 50(a), for default judgment under V.R.C.P. 55(a), or any other motion that may result in dismissal of all or part of a claim without trial.  The proposal addresses response time, oral argument, and evidentiary hearings on motions.

Proposed new V.R.C.P. 56(c)(5) states that a reply to a memorandum in opposition to a motion for summary judgment, as provided in the simultaneous amendment to V.R.C.P. 7(b)(4), is available.

The proposal abrogates V.R.C.P. 78, which required the Presiding Judge of each superior court to establish “motion days” at regular intervals. The rule is no longer consistent with practice in the superior court as currently constituted.

Comments on these proposed amendments should be sent by March 8, 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 Rules of Admission Abrogating and Replacing Rule 16

Proposed new Rule 16 adopts essential character and fitness eligibility requirements that affirmatively state the abilities needed to become a licensed lawyer. These requirements provide a clear framework to guide applicants and the Character and Fitness Committee in the determination of whether an applicant has the requisite moral character and fitness to practice law in the state. Further, the American Bar Association has recommended that states adopt essential eligibility requirements to promote lawyer well-being by providing clear eligibility guidelines for lawyers with mental or physical impairments.

The definition of character and fitness in proposed new Rule 16(b) includes a provision making it clear that health conditions, including substance-use disorders or mental-health impairments, are relevant only so far as they impact the applicant’s present ability to meet the essential eligibility requirements.

Other than the new provisions noted above, the substance of the rule remains unchanged, although somewhat reorganized to incorporate the new provisions.

Comments on these proposed amendments should be sent by January 4, 2021, to Andrew Strauss, Licensing Counsel of the Office of Attorney Licensing, at the following address:

Andrew Strauss, Licensing Counsel
Andrew.Strauss@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