Order Promulgating Amendments to Rule 23(d) of the Vermont Rules of Criminal Procedure

This Order was promulgated June 13, 2018; effective August 13, 2018. The amendment to Rule 23(d) is in response to the Supreme Court’s decision in State v. Breed, where the Court outlined the better practice when there may be a delay after the jury has been chosen but before trial. The rule is divided into three paragraphs. Paragraph (d)(1) requires that consent to a delay of commencement of trial must be by a signed writing filed with the court or in open court. Paragraph (d)(2) requires that after a delay of more than 24 hours, the court must provide an appropriate instruction. Paragraph (d)(3) clarifies that parties are entitled to supplemental voir dire on issues arising from the separation but must initiate a request.

Order Promulgating Amendments to Rule 17(a) of the Vermont Rules of Criminal Procedure

This Order was promulgated June 13, 2018; effective August 13, 2018.

The amendment Rule 17(a) expands the categories of persons who are authorized to issue subpoenas in criminal proceedings, either for attendance of witnesses or for production of documentary evidence and objects. This subdivision was amended effective February 20, 2017 to clarify that a subpoena is provided by the clerk, but actually issued by a judicial officer, subject to certain notice of rights on the part of persons subject to subpoena to object thereto, and the procedures for doing so. The amendment provides that subpoenas in criminal cases may now be issued either by a judicial officer, a court clerk, or a member of the Vermont bar. The amendment is intended to facilitate issuance of subpoenas in criminal cases, consistent with a defendant’s Compulsory Process guarantees, subject to the existing provisions of the rule establishing protections for persons and records that are the subject of subpoenas. The amendment is also intended to establish greater conformity with V.R.C.P. 45(a)(3), which has long provided that subpoenas in civil proceedings may be issued by either a judicial officer, a court clerk, or an attorney.

Order Promulgating Amendments to Rule 42 of the Vermont Rules of Criminal Procedure

This Order was promulgated June 13, 2018; effective August 13, 2018. The amendments to Rule 42, governing contempt process, reorganize and substantively amend the rule in three instances. A provision is added for notice to the defendant of the maximum penalty that may be imposed upon conviction. To facilitate appearance of counsel and assignment of counsel to represent the indigent defendant, a requirement is added to provide notice of the right to be represented by counsel and to make application for assignment of counsel. Specific provision is also made for the mode of appointment of a prosecuting attorney.

Order Promulgating Amendments to Rule 44.2(b) of the Vermont Rules of Criminal Procedure

This Order was promulgated June 13, 2018; effective August 13, 2018. The amendment to Rule 44.2(b) revises the rule in response to general revisions of Administrative Order No. 41, governing Licensing of Attorneys, effective May 15, 2017. Rule 44.2(b)(2), which formerly governed admission and practice of nonresident attorneys pending completion of law office study, or after such completion pending admission to the bar, is deleted as no longer necessary in view of A.O. 41’s abolition of the requirement of law office study as a condition of admission of attorneys to the Vermont bar.

Order Promulgating Amendments to Rules 3 and 5(e) of the Vermont Rules of Civil Procedure and Rule 25(a)(2)(C) of the Vermont Rules of Appellate Procedure

This Order was promulgated June 13, 2018; effective August 13, 2018.

The amendment redesignates the present Rule 3 as Rule 3(a) and adds Rule 3(b) to provide a “prisoner mailbox” procedure for the filing of a complaint in a civil action by an inmate confined in an institution. The amendment is virtually identical to V.R.A.P. 4(f), adopted effective March 13, 2017.

Simultaneous amendments adding V.R.C.P. 5(e)(4) and V.R.A.P. 25(a)(2)(C) establish an identical procedure for inmate filing of documents after the complaint that are required to be filed by V.R.C.P. 5 and papers after the notice of appeal required to be filed by V.R.A.P. 25.

Order Promulgating Amendments to Rule 45 of the Vermont Rules of Civil Procedure

This Order was promulgated June 13, 2018; effective August 13, 2018. The amendments to Rule 45 were made at the request of the Civil Division Oversight Committee to conform the rule to current practice and to assure uniformity among the clerks’ offices.

The amendment to Rule 45(a)(3) deletes “notary public” from the list of those empowered to issue a subpoena. Notaries do not have express power to issue subpoenas. See 24 V.S.A. § 445.

The amendment to Rule 45(a)(4) simplifies language and provides for prior or simultaneous service on the parties to avoid warning the witness before the parties can act. The amendment to Rule 45(b)(1) adds the requirement that witness fees be tendered with the subpoena to avoid issues of enforcement that might arise in the event of later nonpayment.
       
The amendment to Rule 45(f)(3)(A) clarifies the application of the interstate deposition and discovery provisions of the rule to attorneys not admitted in Vermont and unrepresented litigants.
       
The amendment to Rule 45(f)(3)(B) incorporates the provisions of former Rule 45(f)(6), substituting “motion” for “application” for consistency with the general provisions of the rules and adding the requirement that the practice on such motions is limited to Vermont-admitted attorneys because they are adversary proceedings.

The amendment to Rule 45(f)(3)(C) (formerly (B)) states that when a party submits a foreign subpoena judicial approval is now required before the clerk signs it. This provision and the amendment to paragraph Rule 45(f)(4) spell out that the clerk is to deliver the signed subpoena to the requesting party, who is responsible for service and payment of the witness fee. Former subparagraph (C) is redesignated (D).

Former Rule 45(f)(6) is deleted because it is now incorporated in Rule 45(f)(3)(B).

Order Promulgating Amendments to Rules 7(c), 9(b)(1), 11, 12(a), and 13(b) and (e) of the Vermont Rules of Admission to the Bar of the Vermont Supreme Court

This Order was promulgated June 13, 2018; August 13, 2018.

The amendment to Rule 7(c) allows for all institutions of higher education whose accreditor has been approved by the U.S. Department of Education (DOE) to satisfy the law office study (LOS) educational requirement. The amendment to Rule 7(c) also allows an applicant with an undergraduate degree from a foreign jurisdiction to satisfy the education requirement, provided the applicant can establish that such degree is equivalent to a bachelor’s degree from a DOE-approved institution.

The amendments to Rules 9(b)(1), 11, and 13(e) ensure consistency and clarity with regards to the permitted age of UBE and MPRE scores. The amendment to Rule 9(b)(1) clarifies that applicants must be active attorneys to waive the five-year limitation and that Board approval is not necessary for such a waiver. Also, the amendment to Rule 9(b)(1) allows for an extension to the time limitation for good cause.

The amendment to Rule 11 clarifies that the triggering date for the time limit for the age of the MPRE score is the date the applicant achieves a passing UBE score, consistent with the prior Board’s Notes. Also, the amendment to Rule 11 allows for an extension to the time limitation for good cause.

The amendment to Rule 12(a)(1) makes the time period to take the first-year CLE courses for admittees by examination consistent with the corresponding time period for admittees without examination in Rule 15. The amendment to Rule 12(a)(2) clarifies that for good cause the Board can grant an extension to the time limit for satisfying the first-year mentorship requirement.

The amendment to Rule 13(e) imposes a one-year outer limit for the MPRE score, consistent with the outer limit in Rule 11, and allows for an extension to the time limitation for good cause. The amendment to Rule 13(b) specifically permits concurrent applications for admission by transferred UBE score, meaning that an applicant can apply to sit for the UBE in a UBE jurisdiction other than Vermont and at the same time apply for admission by transferred UBE score to the Vermont bar, although the UBE score has not yet been earned.

Order Promulgating Amendment to §§ 1 and 2 of Administrative Order No. 40
(ADVISORY COMMITTEE ON THE RULES OF PUBLIC ACCESS TO COURT RECORDS)

This Order was promulgated April 30, 2018; effective immediately. The amendments to § 1 update some language by deleting references to “District Court Judges,” and clarify that the term limit does not apply to the designee of the State Archivist or to the chair of the relevant VBA committee. The language in § 2 regarding compensation for committee members has been updated.

Order Promulgating Amendment to §§ 1 and 2 of Administrative Order No. 29
(ADVISORY COMMITTEE ON RULES FOR FAMILY PROCEEDINGS)

This Order was promulgated April 30, 2018; effective immediately. The amendments to § 1 update some language by changing “trial court judges” to “superior judges” and “family court magistrate” to “magistrate,” and clarify that the term limit does not apply to the designees or to the chair of the relevant VBA committee. The language in § 2 regarding compensation for committee members has been updated.

Order Promulgating Amendment to §§ 1 and 2 of Administrative Order No. 24
(ADVISORY COMMITTEE ON RULES OF PROBATE PROCEDURE)

This Order was promulgated April 30, 2018; effective immediately. The amendments to § 1 of Administrative Order No. 24 change “Probate Court Judges” to “Probate Judges,” and clarify that the term limit does not apply to the chair of the relevant VBA committee. The language in § 2 regarding compensation for committee members is updated

Order Promulgating Amendment to §§ 1 and 2 of Administrative Order No. 23
(ADVISORY COMMITTEE ON THE RULES OF EVIDENCE)

This Order was promulgated April 30, 2018; effective immediately. The amendments to § 1 of Administrative Order No. 23 delete references to “District Court” and clarify that the term limit does not apply to the chair of the relevant VBA committee. The language in § 2 regarding compensation for committee members has been updated.

Order Promulgating Amendment to §§ 2 and 3 of Administrative Order No. 20
(ADVISORY COMMITTEE ON THE RULES OF CRIMINAL PROCEDURE)

This Order was promulgated April 30, 2018; effective immediately. The amendments to § 2 of Administrative Order 20 delete references to “District Court Judges” and “district court clerk.” Section 1 is amended to clarify that the term limit does not apply to the designees of the Attorney General and Defender General or to the chair of the relevant VBA committee. Language clarifying that if the Attorney General or Defender General is present at a committee, he or she may vote is deleted because that power is already granted to those individuals. It remains the case that the designee requires prior approval before being able to vote. The language in § 3 regarding compensation for committee members has been updated.

Order Promulgating Amendment to §§ 2, 3, 4 and 6 of Administrative Order No. 17
(ADVISORY COMMITTEE ON THE RULES OF CIVIL PROCEDURE)

This Order was promulgated April 30, 2018; effective immediately. The amendments to §§ 2, 4 and 6 of Administrative Order 17 delete references to “District Court Judges” and “District Court Civil Rules” and clarify that the term limit does not apply to the chair of the relevant VBA committee. The language in § 3 regarding compensation for committee members has been updated.

Order Promulgating Amendment to § 10 of Administrative Order No. 41

This Order was promulgated April 30, 2018; effective July 2, 2018. The amendment to § 10 revises the rule to permit federal judges and magistrates to claim judicial status as well as authorizing the MCLE Board to grant judicial status to a justice, judge, or magistrate from another jurisdiction upon request and showing of good cause.

Order Continuing Addition of Rule 80.11 to the Vermont Rules of Civil Procedure

This Order was promulgated April 30, 2018; effective immediately. Rule 80.11 of the Vermont Rules of Civil Procedure added on June 15, 2016, and amended on July 11, 2016, has been continued, and the sunset date of August 16, 2019 set in the Court’s order of June 15, 2016 is void. The Advisory Committee on the Rules of Civil Procedure has been directed to continue to review the operation of this rule and to advise the Court not later than August 31, 2021, whether the rule should be further revised or made permanent. It the absence of further order, the rule will be void and of no further effect in any civil action commenced after August 31, 2022.

Order Promulgating Amendment to Rule 54(a) of the Vermont Rules of Criminal Procedure

This Order waspromulgated on February 5, 2018, effective April 9, 2018. The amendment to Rule 54(a)(2) comports with statutory amendments. 23 V.S.A. §§ 2201-2207, referred to in the former rule as the “Traffic Act,” were repealed per 2015, No. 47, § 38. The offenses and tickets formerly covered under the repealed statutes were placed under the jurisdiction of the Judicial Bureau and subject to enforcement under 4 V.S.A. Chapter 29, under procedural rules promulgated by the Supreme Court. See 4 V.S.A. § 1106(f). The rules governing Judicial Bureau proceedings are prescribed in V.R.C.P. 80.6. In consequence, references to proceedings under the “Traffic Act” in Rule 54(a)(2) have been deleted.

Order Promulgating Amendments to V.R.Pr.C. 1.7 and 1.8

This Order was promulgated on January 8, 2018, effective March 12, 2018. Rule 1.8(j) is added to prohibit sexual relations between a lawyer and client unless a consensual sexual relationship existed when the client-lawyer relationship commenced. Comment [17] is amended to clarify that the rule applies to all sexual relationships formed after the commencement of the professional client-lawyer relationship, including consensual sexual relationships and sexual relationships in which there is no prejudice to the client’s interests in the matter that is the subject of the professional relationship. Comment [18] is added to provide guidance on sexual relationships that predate the commencement of the client-lawyer relationship.

Comment [12] to Rule 1.7 is deleted due to the simultaneous amendment to Rule 1.8(j), which explicitly precludes a lawyer from having a sexual relationship with a client unless a consensual sexual relationship existed when the client-lawyer relationship began.

Order Promulgating Amendment to Administrative Order No. 29

This Order was promulgated on December 20, 2017, effective immediately. The amendment increases the membership on the Advisory Committee on Rules for Family Proceedings from sixteen members to seventeen members and clarifies the language regarding the Superior Court clerk appointment.

Emergency Promulgation Order Amending V.R.E.C.P. 4(b)

This Emergency Order was promulgated on December 6, 2017, effective January 1, 2018. The amendment to Rule 4(b), as amended September 20, 2017, effective January 1, 2018, is further amended. The time period in Rule 4(b) for the Attorney General to move the court to vacate an order was amended from 10 days to 14 days in keeping with the day-is-a-day amendments to V.R.C.P. 6. The 10-day time period, however, comes directly from a statute. 10 V.S.A. § 8007(c). To avoid any conflict between the rule and the statute, the rule is amended back to the former time period of 10 days. As of January 1, 2018, the 10-day period will be counted using the day-is-a-day counting system.

Promulgation Order for V.R.Cr.P. 5(e)

This Order was promulgated on October 17, 2017, effective December 18, 2017. The amendments to Rule 5 revise the rule to conform to amendments to 13 V.S.A. § 7554c, which relates to pretrial risk assessments and needs screenings. Under the amendments, the results of the pretrial risk assessment and needs screenings are provided directly to defendants and their attorneys, the prosecutors, and the court. The amendment also clarifies that while the court may order a defendant to meet with a pretrial services coordinator and participate in a needs screening, to participate in a clinical assessment by a substance abuse or mental health treatment provide and follow the recommendations of the provider, and to otherwise participate in pretrial services, such orders are deemed to be in addition to conditions of release authorized by law, and do not serve to limit the discretion of the court to impose conditions of release authorized under 13 V.S.A. § 7554.

Promulgation Order for V.R.Cr.P.11.1

This Order was promulgated on October 17, 2017, effective December 18, 2017. The amendments to Rule 11.1 to reflect changes necessitated by enactment of Act 133 of 2015 (Adj. Sess.), which expressly prescribes the consequences resulting from the court’s failure to provide the defendant with notice of collateral consequences. The amendment also clarifies that the rule is of application only to convictions for violation of 18 V.S.A. § 4230(a) and not for all offenses prescribed by § 4230.

Promulgation Order for A.O. 10, Application

This Order was promulgated on October 17, 2017, effective February 1, 2019. The amendment to section B(1) of the “Application of the Code of Judicial Conduct” removes the exemption for financial reporting for continuing part-time judges, which the Terminology section [3] defines as including “judges of probate and assistant judges.” The amendment will now require continuing part-time judges to submit a financial disclosure form to make their sources of income more transparent.  The rule change becomes effective February 1, 2019 to coincide with the beginning of the terms for part-time judges.

Promulgation Order for A.O. 10, Canon 4

This Order was promulgated on October 17, 2017, effective December 18, 2017. The amendment to Canon 4 § H(2) clarifies that in addition to reporting compensation received as a result of extra-judicial activities, a judge is required to report rental income.  The amendment to Canon 4 § I adds a title and subdivision (1), which requires a judge to disclose any investment over $5,000 in an entity appearing as a party before the judge.

Promulgation Order Making V.R.A.P. 11(b)(3) Permanent

This Order was promulgated on October 17, 2017, effective December 18, 2017. The emergency amendment to Rule 11(b)(3) promulgated on March 9, 2015, effective April 10, 2015, has been made permanent. The emergency amendment had been made as part of the Supreme Court’s effort to obtain cost savings in the operations of the clerk’s offices in all courts by saving clerk time.

Promulgation Order for V.R.P.P. 47(d)

This Order was promulgated on October 17, 2017, effective December 18, 2017. The amendment conforms Rule 47(d) to current practice regarding recording of court proceedings, and deletes language that is unnecessary and inappropriate.

Emergency Promulgation Order for V.R.P.P. 52(b) and 60(c)

This emergency Order was promulgated on October 17, 2017, effective January 1, 2018. These emergency amendments make changes to the day-is-a-day order. It further amends Rule 52(b), as amended September 20, 2017, effective January 1, 2018, to provide a 14-day time period consistent with the basic purpose of the day-is-a-day amendments of the civil and probate rules rather than the 28 days adopted initially for consistency with the comparable provisions of the Federal Rules of Civil Procedure. The amendment to Rule 60(c), as amended September 20, 2017, effective January 1, 2018, is further amended to provide a 14-day time period consistent with the basic purpose of the day-is-a-day amendments of the Civil and Probate rules rather than the 28 days adopted initially for consistency with the comparable provisions of the Federal Rules of Civil Procedure. Both changes reflect the significant differences between probate and civil practice. Matters in probate court generally involve important personal concerns that could be adversely affected by the additional extension of the time for appeal resulting from the longer period. Moreover, there is less need in probate practice to be concerned with uniformity with the Federal Rules.

“Day is a Day” Amendments to Appellate, Civil, Criminal, Environmental, Family, Juror, MCLE, Probate, and Small Claims

These Orders were promulgated on September 20, 2017, effective January 1, 2018. The amendments to various rules adopt the “day is a day” rule, a simplified method of computing time periods adopted in 2009 amendments to the federal rules. Under the former rules, a period of 11 days or more was computed differently than a period of 10 days or less. The shorter time periods did not count intervening Saturdays, Sundays, or legal holidays. Under the amended rules, all deadlines are computed the same way no matter the length—all days, including intermediate Saturdays, Sundays, and legal holidays, are counted. If the period ends on a Saturday, Sunday, or legal holiday, the deadline falls on the next business day.

Because periods of 10 days or less would be shortened by the inclusion of intermediate Saturdays, Sundays, and legal holidays, the shorter time periods have been extended. Most time periods are changed to use multiples of 7 so that time periods will end on a week day. In general, the amendments change periods of 3 days to 5 days, 5 days to 7 days, 10 and 15 days to 14 days, 20 days to 21 days, 45 and 50 days to 42 and 49 days. Thirty-day time periods remain unchanged. Several 10-day time periods are enlarged to 28 days for consistency with the federal standard for motion practice.

The amendments to V.R.C.P. 6(e) and V.R.Cr.P. 45(e), providing an additional 3 days for actions required after service, adopt the simplified language of F.R.C.P. 6(d) and F.R.Cr.P. 45(c), as amended in 2005 and 2007, and follow the federal rule in effect until December 2016 by adding the additional 3 days after service by electronic means if permitted or required under V.R.C.P. 5(b)(4).

The amendments retain the language of the former rules making the computation provisions apply to a time period in “any applicable statute.” By Act 11 of 2017, the Legislature amended a number of statutory procedural time periods of 10 days to 14 days and of less than 10 days to be expressly “business days.” For consistency, the amendments add “business days” to time periods in rules that were taken from one of the amended statutes and a definition of “business day” is added.

Order Promulgating Amendment to V.R.P.P. 5(e)

This Order was promulgated on July 14, 2017, effective September 18, 2017. Rule 5(e) is amended to adopt language virtually identical to V.R.C.P. 5(h) as simultaneously amended, requiring a certificate of service to be filed after service of any document under Rule 5.

Order Promulgating Amendment to V.R.Cr.P. 32(g)

This Order was promulgated on July 14, 2017, effective September 18, 2017. The amendment adds subdivision (g) to V.R.Cr.P. 32 to provide specific procedures for conduct of restitution hearings convened pursuant to 13 V.S.A. § 7043.

Order Promulgating Amendment to Rule 8 of the Vermont Rules of Admission

This Order was promulgated on July 14, 2017, effective September 18, 2017. The amendment revises Rule 8 to reflect the Board’s practice, based on prior Rule § 6(h) and current Rule 8(c)(3)(A), of requiring that an Applicant requesting an equivalency determination for a Foreign Law School have exposure to the common law. This training is now an express requirement of Rule 8(b)(1), ensuring Applicants complete their legal education at a Foreign Law School whose curriculum is based on the principles of common law.

Rule 8(c)(4) is added to include a cure provision for Applicants who do not otherwise meet the requirements of Rule 8(b)(1).  The cure provision permits Applicants to correct a deficiency by completing a Master of Laws degree at an Approved Law School in the United States, subject to specific requirements which focus on ensuring that Applicants receive sufficient training in common law principles, professional responsibility, legal writing, U.S. law, and UBE topics.

Order Promulgating Amendments to V.R.C.P. 1, 26, 34(b), 37(f), and 55(c)

This Order was promulgated on July 14, 2017, effective September 18, 2017. The amendments to the civil rules incorporate or adapt recent changes to the federal rules.

The amendment to Rule 1 is intended to encourage increased cooperation among the parties by clarifying that parties as well as courts have a responsibility to achieve “the just, speedy, and inexpensive determination of every action.”

The amendment to Rule 26 redefines the scope of discovery. Discovery must now be relevant to any party’s claim or defense, as opposed to being reasonably calculated to lead to the discovery of admissible evidence. A proportionality requirement has been added, saying that discovery may now only be obtained if it is “proportional to the needs of the case” as defined by five factors.

The amendment to Rule 34(b) requires the grounds for objection to be stated specifically consistent with the requirement that an objection must state whether materials are being withheld.

The amendment to Rule 37(f) clarifies the consequences for failing to preserve electronically stored or other evidence.

Order Promulgating Amendment to V.R.C.P. 5(h)

This Order was promulgated on July 14, 2017, effective September 18, 2017. Rule 5(h), as added effective September 21, 2015, is amended to clarify and make uniform the procedures under it. In some clerks’ offices it has been interpreted to (1) require a separate form for each item served, (2) require that the form be on a separate document from the items it identifies, and (3) allow court staff to return filings that lack a certificate, rather than accepting them and then having the judge determine how to handle the absence. The amendment clarifies that the certificate may be incorporated in the document filed or be on a separate page and may embrace multiple documents. Further, the amendments to paragraph (3) clarify that a document filed without a certificate should be accepted for filing, subject to compliance with the order of the judge concerning the filing of a proper certificate.

Order Promulgating Amendment to V.R.Pr.C. 8.4

This Order was promulgated on July 14, 2017, effective September 18, 2017. The amendment to Rule 8.4(g) and new Comments [3]-[5] adopt, with minor verbal changes, amendments to the American Bar Association’s Model Rules of Professional Conduct approved by the ABA on August 8, 2016. The amendment prohibits conduct in the practice of law that discriminates or harasses on the basis of a lengthy list of characteristics.

Order Promulgating Amendments to Rules 9(b)(4), 12(b), and 13(d) of the Vermont Rules of Admission to the Bar of the Vermont Supreme Court

This Order was promulgated on June 1, 2017, effective August 1, 2017.  The amendment to Rule 9(b) reinstates the option of applying to the Board for permission to sit for the Bar Exam for a fifth time (which was the prior practice of the Board before the adoption of the UBE rules, effective April 18, 2016).

The amendment to Rule 12(b) provides a process by which an Applicant, who is newly admitted to the Vermont Bar, can rectify the untimely filing of a Mentorship Completion Certificate or other minor errors in the completion of the required Mentorship program. The amendment is drawn from
§ 10 of the Rules for Mandatory Continuing Legal Education which allows admitted attorneys time to complete a make-up plan if they fail to have the requisite number of continuing legal education credits by the applicable biannual reporting deadline.

Consistent with the recent amendment to Rule 9(b)(1), the amendment to Rule 13(d) extends the time in which the Applicant must sit for the UBE from 3 to 5 years.  The amendment also provides for an extension of this deadline for good cause, consistent with the concurrent amendment to Rule 9(b)(4).

Promulgation Order A.O. 9, Rule 1

This Order, promulgated on May 8, 2017, effective July 10, 2017, adds paragraph (4) to Rule 1(E) to make clear that the Professional Responsibility Board has the responsibility to review the Rules of Professional Conduct and to make proposals to the Court to amend those rules. The amendment reiterates the obligation under Administrative Order 11 to provide the proper notice and opportunity to comment on amendment proposals and notifies individuals that requests for changes should be directed to the Board.

Promulgation Order A.O. 14

This Order, promulgated on May 8, 2017, effective immediately, replaces Justice Dooley with Justice Carroll as the justice responsible to entertain motions for Area I.

Promulgation Order A.O.44

This Order, promulgated on May 8, 2017, effective May 15, 2017, updates cross references to Administrative Order 41, concerning licensing of attorneys, which has been revised, reorganized, and renumbered.  The reference to attorneys admitted for a government study license has been removed because that type of license is no longer available under A.O. 41.

Promulgation Order A.O. 45

This Order, promulgated on May 8, 2017, effective May 15, 2017, updates a cross reference to Administrative Order 41, concerning licensing of attorneys, which has been revised, reorganized, and renumbered.

Order Promulgating Emergency Amendments to Rule 77(e) of the Vermont Rules of Civil Procedure and Rule 6(b) of the Rules for Public Access to Court Records

This emergency Order, promulgated on April 20, 2017, effective April 24, 2017, brings court procedure into conformity with the policies underlying the Rules for Public Access to Court Records.

With the legislative repeal of 4 V.S.A. § 652(4) in 2013, the residual confidentiality provision of V.R.C.P. Rule 77(e), which precluded disclosure of records pertaining to the filing of an action until the action was disposed or at least one defendant was served, is superfluous, and is removed.

Rule 6(b)(25) of the Vermont Rules for Public Access to Court Records, which excluded from public access records related to the filing of a civil action prior to service, is removed to conform with the removal of the referenced confidentiality provision in Rule 77(e) of the Rules of Civil Procedure. Former paragraphs (26) to (36) are renumbered (25) to (35).

Order Promulgating Amendment to § 4 of Administrative Order No. 18

The amendment to § 4 of Administrative Order No. 18 provides the Chief Superior Judge, with the approval of the Chief Justice, the authority to assign active or retired magistrates to the trial courts.

This Order was promulgated on March 13, 2017, effective immediately.

Promulgating Amendments to Rules 4(a) and 80.2 of the Vermont Rules of Probate

The amendment to Rule 4(a) adopts language of V.R.C.P. 4(b) and requires that a blank Notice of Appearance form must be included by a petitioner when a complaint is served. This addresses a problem that arises with increasing frequency with the increase of self-representation. By providing a blank notice of appearance form at the time the complaint is served, unrepresented defendants will be encouraged to provide contact information for the court as well as to comply with V.R.P.P. 79.1(c).

The amendment to Rule 80.2(a) conforms the rule to present practice by requiring that a petition to open an ancillary estate in Vermont include a representation that the property is located in the Unit in which the proceeding is brought. The representation as to the location of real property is necessary to establish jurisdiction and venue.

This rule was promulgated March 13, 2017; effective May 15, 2015.

Order Repealing and Replacing Administrative Order No. 41

This Order, promulgated on March 13, 2017, effective May 15, 2017, repeals and replaces A.O. 41 with comprehensive changes. Some sections have been added, some existing sections have been reorganized and renumbered, and other sections have been deleted. The changes bring clarity to the licensing (and relicensing process) and reflect practices that have developed over time. Although some of the changes are stylistic, several substantive changes are made. The amendments create and define two new licensing categories: judicial and pro bono emeritus. The amendments also add a provision on relinquishing a license. The amendments remove former § 13A, which allowed government attorneys seeking admission without examination to practice pending completion of a three-month clerkship, because attorneys are no longer required to complete a three-month clerkship prior to admission.

Order Promulgating Amendments to V.R.Cr.P. 30 and V.R.C.P. 51(b)

This Order, promulgated on February 6, 2017, effective April 10, 2017, makes contemporaneous conforming amendments to Rule 30 of the Vermont Rules of Criminal Procedure and Rule 51(b) of the Vermont Rules of Civil Procedure.

The amendments to V.R.Cr.P. 30 and V.R.C.P. 51(b) clarify those circumstances in both criminal and civil trials in which objections to proposed jury instructions fully articulated at a charge conference may be preserved, without the necessity for their reassertion after the court’s reading of the instructions and prior to the jury’s retirement for deliberations.

Promulgation Order Adding Rule 4(f) to the Vermont Rules of Appellate Procedure

New Rule 4(f) provides that deposit of a notice of appeal in the internal prison mailing system can constitute timely filing and requires use of a prison “legal mail” system if available. The rule also explicitly creates a rebuttable presumption that the filing is timely if accompanied by a notarized statement showing deposit in the institution's internal mailing system on or before the last day for filing.

This Order was promulgated on January 9, 2017, effective March 13, 2017.

Order Promulgating Amendments to V.R.C.P. 43(f), V.R.P.P. 43(e), and V.R.Cr.P. 28

Contemporaneous conforming amendments have been made to Rule 43(e) of the Vermont Rules of Probate Procedure, Rule 28 of the Vermont Rules of Criminal Procedure, and Rule 43(f) of the Vermont Rules of Civil Procedure. The amendments make clear that the requirements in actions of all divisions of the Superior Court for court provision of interpreter services for persons with limited English proficiency (LEP), hearing impairments, or other disability resulting in the need for interpreter services comply with federal law.

This Order was promulgated on January 9, 2017, effective March 13, 2017.

Promulgation Order Amending Rules 4.2(a) and 4.3(b) of the Vermont Rules of Family Proceedings

Rule 4.3(b) is amended to address the question raised in Columbia v. Lawton, 2013 VT 2, 193 Vt. 165, 71 A.3d 1218, concerning the remedy for a person seeking to establish parentage after a prior determination of parentage to which that person was not a party. Under the amended rule, a nonparty to a prior parentage determination under 15 V.S.A. §§ 301-108 may seek to claim a deprivation of constitutional rights in that determination by filing a motion to intervene and reopen the matter.

The amendment to Rule 4.2(a) implements the simultaneous amendment of Rule 4.3(b) by clarifying that motions to intervene and for relief from a parentage judgment under new Rule 4.3(b)(1), like wage withholding actions under what is now Rule 4.3(b)(2), are excepted from the provisions of Rule 4.2.

This Order was promulgated on December 15, 2016, effective February 20, 2017.

Promulgation Order Amending Rule 5 of the Vermont Rules of Civil Procedure

The amendment to Rule 5 establishes procedures for service and filing of documents under the rule by electronic means in all divisions and units of the superior court.

This Order was promulgated on December 15, 2016, effective February 20, 2017.

Promulgation Order Amending Rule 17 of the Vermont Rules of Criminal Procedure

The amendment to Rule 17(a) clarifies that a subpoena is provided by the clerk of court, but actually issued by a judicial officer, subject to certain notice of rights on the part of persons subject to subpoena thereto. The amendment conforms the rule to current practice.

The amendment to Rule 17(c) adds express provision for “nonproceedings” subpoenas duces tecum, that is, for production of specified objects, including but not limited to documents and electronically stored information, outside of the context of deposition or judicial proceedings. The amendment also prescribes certain protections for persons who are subject to the issuance of subpoenas.

This Order was promulgated on December 15, 2016, effective February 20, 2017.

Order Promulgating Amendment to Rule 3(c)(16) of the Vermont Rules of Criminal Procedure

Rule 3(c) prescribes those nonwitnessed misdemeanor offenses for which a law enforcement officer, having probable cause, is authorized to arrest a person. The amendment to Rule 3(c)(16) conforms the nomenclature describing the offense of cruelty to a child to legislative enactment amending 13 V.S.A. § 1304. Per Act No. 60 of 2015, § 25, the Legislature amended the statute to create a felony offense of cruelty to a child, but retained codification of a misdemeanor offense in § 1304(a), which is the subject of V.R.Cr.P. 3(c)(16), recaptioning the section title as “Cruelty to a Child,” and deleting former reference in the section title to age of either the child or the defendant. The amendment makes a nonsubstantive change to the title of the offense specified.

This Order was promulgated on October 5, 2016, effective December 5, 2016.

Order Promulgating Amendments to Rules 9(b) and 24(d) of the Rules of Admission to the Bar of the Vermont Supreme Court

The amendment to Rule 9(b)(1) extends from three years to five years the time within which an applicant must sit for the bar exam after graduating law school or completing the LOS program.

The amendment to Rule 24(d) requires legal interns complete a course in evidence before conducting an evidentiary proceeding.

This Order was promulgated on October 5, 2016; effective December 5, 2016.

Order Promulgating Amendments to Conform Provisions of the Vermont Rules of Civil Procedure, Rules of Evidence, Rules for Family Proceedings, and Rules for Public Access to Court Records, and Administrative Orders of this Court to Rules 4.0-4.3 of the

These amendments conform the rules with the simultaneous abrogation of former V.R.F.P. 4 and promulgation of restyled and reorganized V.R.F.P. 4.0-4.3.

This Order was promulgated on August 25, 2016, effective December 5, 2016.

Order Abrogating Rule 4 of the Vermont Rules for Family Proceedings and Replacing It with new Rules 4.0-4.3.

The order abrogates Rule 4 of the Vermont Rules for Family Proceedings and replaces it with new Rules 4.0-4.3. The appendix to the promulgation order contains the new rules, which reorganize, reformat, and restyle former V.R.F.P. 4. The purpose is to make the rules more accessible and clearer.

New Rule 4.0 contains provisions that are generally applicable to all civil family proceedings—divorce, legal separation, dissolution of a civil union, the affirmation or annulment of a marriage, parentage, desertion, and nonsupport. Rule 4.1 contains additional special provisions for cases involving minor children and parentage. Rule 4.2 contains provisions pertaining to motions after judgment. Rule 4.3 contains provisions considered to be “special procedures” within the context of civil family proceedings.

This Order was promulgated on August 25, 2016, effective December 5, 2016.

Order Promulgating the Addition of Comment 14 to Rule 1.2 of the Vermont Rules of Professional Conduct

Comment [14] is added to clarify that Rule 1.2(d) does not prohibit Vermont lawyers from providing legal advice and legal assistance to clients on issues related to Vermont’s laws regulating marijuana and allowing some permissible uses. Rule 1.2(d) does not draw a distinction between state and federal law. Therefore, while the Department of Justice’s current enforcement policy is to focus prosecutorial resources on activities other than those that are legal under state-approved regulatory schemes, marijuana remains an illegal controlled substance under the Federal Controlled Substances Act. See 21 U.S.C. §§ 801-904. Arguably, a lawyer violates Rule 1.2(d) by providing a client with legal advice and legal assistance necessary to set up a dispensary of therapeutic cannabis that is legal under Vermont law. The amendment clarifies that such legal advice and assistance is not a violation of the rule.

This Order was promulgated on August 25, 2016, effective October 31, 2016.

Order Promulgating Amendments to Rules 4, 16.3 and 80.10 of the Vermont Rules of Civil Procedure

Rule 4(d)(2) is amended to provide a uniform, easily administered method of service of complaints and material information on the Vermont Attorney General as required by the state and federal False Claims Acts.

Rule 16.3, originally promulgated in 1999, is abrogated and replaced by the present rule, which is intended to conform to present practice and provide a simplified mediation rule for cases under the civil rules. The title of the new rule and references throughout are “Mediation,” rather than “Alternative Dispute Resolution,” reflecting that other forms of ADR are no longer required or governed by the rule.

Rule 80.10(e) regarding orders against stalking or sexual assault is amended consistent with the amendment of V.R.F.P. 9(e), effective September 21, 2015, to provide that the denial of a stalking or sexual assault order under Rule 80.10 must inform the plaintiff that a request for hearing may be entered within five business days after the order is entered on the docket.

The amendment is intended to expedite proceedings for holding a hearing when an ex parte temporary relief from abuse order has been denied by requiring that the written denial must inform the plaintiff that the request for hearing must be filed within five business days after entry of the denial on the docket.

This Order was promulgated on July 11, 2016, effective September 12, 2016.

Order Promulgating Emergency Amendments to Rule 80.11 of the Vermont Rules of Civil Procedure

Rule 80.11 as added June 15, effective August 15, 2016, is amended to reflect the abrogation and replacement of V.R.C.P. 16.3. New Rule 16.3 significantly simplifies the procedure of the former rule and provides only for mediation, rather than for a variety of alternative dispute resolution methods. The present amendments are intended to reflect those changes by substituting “mediation” for “alternative dispute resolution” wherever it appears and replacing cross-references to former Rule 16.3 with references to the appropriate provisions of the new rule.

This Emergency Order was promulgated on July 11, 2016, effective September 12, 2016.

Order Promulgating Permanent Amendments to Rules 5 and 11 of the Vermont Rules of Criminal Procedure

This Order, promulgated on June 15, 2016, effective August 15, 2016, makes permanent the emergency amendments to Rules 5 and 11 of the Vermont Rules of Criminal Procedure that were promulgated on December 21, 2015; effective January 1, 2016.

Order Promulgating the Addition of Rule 80.11 to the Vermont Rules of Civil Procedure

The rule creates an expedited procedure with an effective, efficient, and predictable case management process for lower-value or less-complicated cases. The Advisory Committee on the Rules of Civil Procedure has been directed to review the operation of the rule and to advise the Court not later than August 17, 2018 whether the rule should be further revised or made permanent. In the absence of further order, the rule will be void and of no further effect in any civil action commenced after August 16, 2019.

This rule was promulgated June 15, 2016; effective August 15, 2016.

Order Promulgating Amendments to Rule 41(e) of the Vermont Rules of Criminal Procedure

The amendments to Rule 41(e)(4), (5) and (6) authorize the filing of search warrant returns and accompanying documents by reliable electronic means to facilitate prompt filing where great distances, or particular circumstances of completion of the return, would otherwise impede timely submission of search warrant returns as contemplated by Rule 41, consistent with the warrant “accountability” procedures adopted in 2013. Subdivision 41(d)(4) already provides for the electronic application for and issuance of search warrants, and at this juncture there is general understanding of and experience with the process of issuing search warrants by reliable electronic means. The present amendment adds the filing of returns to this established process of transmission of warrant documents by reliable electronic means. The amendment adds the requirement that, in event of electronic submission, the original return and accompanying documents that were prepared by the executing officers must be subsequently filed with the court no later than 15 days following electronic submission to avert any dispute as to which are the original, and operative, return, inventory and other accompanying documents.

This Order was promulgated on May 10, 2016, effective August 15, 2016.

Order Promulgating Amendments to Rule 16(d) of the Vermont Rules of Criminal Procedure

The amendment adds a new subdivision (d)(3), which provides that the prosecuting attorney is not required to disclose to the defendant information as to the residential address or place of employment of the victim, unless the court finds, based upon a preponderance of the evidence, that nondisclosure of the information will prejudice the defendant. The amendment serves to implement the provisions of 13 V.S.A. § 5310, while expressly reserving the court’s authority to order that the state disclose the information where necessary to preserve a defendant’s due process and confrontation guarantees.

This Order was promulgated on May 10, 2016, effective July 11, 2016.

Order Promulgating Amendment to Rule 5 of the Vermont Rules of Criminal Procedure

The amendments to Rule 5 add a new subdivision 5(e), and former subdivisions (e), (f), (g), and (h) are now designated as (f), (g), (h), and (i) respectively. New subdivision 5(e) is added in response to the passage of Act No. 195 of 2013 (Adj. Sess.), establishing a system of pretrial risk assessments and needs screenings that may be voluntarily engaged in by defendants in: (a) felony cases excepting listed crimes; (b) felony or misdemeanor drug offenses; (c) cases in which showing is made that a defendant has a substantial substance-abuse or mental-health issue, and (d) all other cases, with limited exceptions, where the defendant has been held, unable to make bail, for over 24 hours after lodging, or (e) in more limited circumstances, ordered by the Court (and not voluntarily) as a condition of release under 13 V.S.A. § 7554. See 2013, No. 195 (Adj. Sess.), § 2, codified at 13 V.S.A. § 7554c. It is anticipated that the system will be phased in over a period of approximately ten months, beginning with defendants referenced in category (a).

This Order was promulgated on May 10, 2016, effective July 11, 2016.