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

Proposed Order Amending Rule 17(a) of the Vermont Rules of Criminal Procedure

The proposed 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 proposed amendment provides that subpoenas in criminal cases may now be issued either by a judicial officer, a 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 clerk, or an attorney.

Comments on this proposed amendment should be sent by May 9, 2018, to the Honorable 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
Rutland Criminal Family Unit
9 Merchants Row
Rutland, VT  05701
Thomas.zonay@vermont.gov

Proposed Order Amending Rule 42 of the Vermont Rules of Criminal Procedure

The proposed amendment to Rule 42, governing contempt process, reorganizes and substantively amends 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.

Comments on this proposed amendment should be sent by May 9, 2018, to the Honorable 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
Rutland Criminal Family Unit
9 Merchants Row
Rutland, VT  05701
Thomas.zonay@vermont.gov

Proposed Order Amending 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

The proposed 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 proposed amendment is virtually identical to V.R.A.P. 4(f), adopted.

Proposed 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.

Comments on this proposed amendment should be sent by May 9, 2018, to Allan Keyes, Chair of the Civil Rules Committee, 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 23(d) of the Vermont Rules of Criminal Procedure

The proposed 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.

Comments on this proposed amendment should be sent by May 9, 2018, to the Honorable 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
Rutland Criminal Family Unit
9 Merchants Row
Rutland, VT  05701
Thomas.zonay@vermont.gov

Proposed 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

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

The proposed 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 proposed 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 proposed amendment to Rule 9(b)(1) allows for an extension to the time limitation for good cause.

The proposed 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 and the three-year age limit for the MPRE in Rule 13(e). Also, the proposed amendment to Rule 11 allows for an extension to the time limitation for good cause.

The proposed 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 proposed 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 proposed amendment to Rule 13(e) imposes a one-year outer limit for the MPRE score, consistent with the outer limit in Rule 11. Also, the proposed amendment to Rule 13(e) allows for an extension to the time limitation for good cause. The proposed 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.

Comments on this proposed amendment should be sent by April 6, 2018, 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 § 10 of Administrative Order No. 41

The proposed 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.

Comments on this proposed amendment should be sent by April 6, 2018, 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 Administrative Order No. 47

Proposed Administrative Order No. 47 implements V.R.C.P. 43.1 and related rules that are simultaneously promulgated to provide for video and audio conference participation of parties and other necessary persons, as well as testimony of witnesses, in actions in the civil, environmental, family, and probate divisions of the superior court. See V.R.C.P. 43.1(e), Reporter’s Notes to simultaneous adoption of V.R.C.P. 43.1, and simultaneous amendments of V.R.F.P. 17 and V.R.P.P. 43(b). The technical standards are adopted by administrative order rather than by rule to permit more rapid and flexible change as necessary to take advantage of changing technological capabilities.

Comments on this proposed amendment should be sent by March 23, 2018, to the Hon. John A. Dooley at the following address:

Hon. John A. Dooley, Chair
Special Committee on Video and Electronics in the Courtroom
Vermont Supreme Court
109 State Street
Montpelier, VT  05609-0801
John.Dooley@vermont.gov

Proposed Amendments to Vermont Rules of Civil Procedure, the Vermont Rules for Family Proceedings, and the Vermont Rules of Probate Procedure

The proposed amendment to V.R.C.P. 43(a) reflects the fact that new Rule 43.1 and proposed simultaneous amendments to the family and probate rules, permit testimony to be presented by video or audio conference in appropriate circumstances. The proposed amendment provides expressly that proceedings under Rule 43.1 are an exception to the existing requirement that “testimony… shall be taken orally in open court” unless otherwise provided by specific rules. That provision has been held to prohibit testimony by telephone or other means except by agreement of the parties.  

The proposed addition of V.R.C.P. 43.1 provides a uniform procedure and standards for video or audio conference participation of parties and other necessary persons, as well as testimony of witnesses, in civil actions and in the civil division of the superior court.

The proposed amendment to V.R.F.P. 17 deletes the present text of the rule and the adds new subdivisions (a)-(d) providing that V.R.C.P. 43.1 applies in family division proceedings other than juvenile proceedings under V.R.F.P. 1, subject to specific provisions for certain statutory mental health and guardianship proceedings.

The proposed amendment to V.R.P.P. 43(b) reflects the fact that new V.R.C.P. 43.1, promulgated simultaneously, is applicable in the probate division and permits testimony to be presented by video or audio conference in appropriate circumstances. The proposed amendment provides expressly that proceedings under V.R.C.P. 43.1 are an exception to the existing requirement that “testimony ... shall be taken orally in open court” unless otherwise provided by specific rules.

Comments on these proposed amendments should be sent by March 23, 2018, to the Hon. John A. Dooley at the following address:

Hon. John A. Dooley, Chair
Special Committee on Video and Electronics in the Courtroom
Vermont Supreme Court
109 State Street
Montpelier, VT  05609-0801
John.Dooley@vermont.gov

Proposed Amendments to V.R.C.P. 16.2 and 26

The proposed amendment to Rule 16.2 adds a reference to the use of a scheduling order provided in the proposed simultaneous amendment of V.R.C.P. 26(b)(5)(A)(i)-(v) and conforms the designation of the provisions of the rule to the format of other rules.

The proposed amendments to V.R.C.P. 26(b)(4) and (5) clarify their provisions and bring them more closely in line with comparable provisions of the Federal Rules of Civil Procedure and the realities of current Vermont practice. The proposed amendments to V.R.C.P. 26(b)(5)(A) provide for automatic pretrial disclosure of all witnesses who will be offered as experts and the nature of their expected testimony. The proposed amendment to V.R.C.P. 26(b)(5)(A)(i) adapts language from the federal rule requiring automatic disclosure of all opinion witnesses qualified and testifying as experts under V.R.E. 702, 703, and 705 who may be used at trial. This disclosure requirement does not extend to lay opinion witnesses testifying under V.R.E. 701. The proposed amendment to V.R.C.P. 26(b)(5)(A)(ii) departs significantly from both prior Vermont practice and F.R.C.P. 26(a)(2) by giving the same treatment to witnesses retained or employed solely to provide expert testimony and to fact witnesses with expert qualifications. The amended rule provides a simplified report requirement for all categories of experts. The proposed amendment to Rule 26(b)(5)(A)(iii) provides that the disclosures under subparagraphs (A)(i) and (ii) must ordinarily be made by stipulation or a scheduling order under Rule 16.2. Otherwise, the disclosures must be made by the earlier of the trial date or the date by which the case is to be ready for trial, except that evidence attacking another party’s evidence must be made within 30 days of that party’s disclosure. The proposed amendments to Rules 26(b)(5)(A)(iv) and (v) adapt the provisions of former Rules 26(b)(5)(A)(i) and (iii) to the disclosure requirements of amended Rule 26(b)(5)(A). Minor conforming amendments have been made in Rules 26(b)(5)(B), (C), and (E). No amendments have been made to Rule 26(b)(5)(D).

The proposed amendment to V.R.C.P. 26(e) adapts provisions of F.R.C.P. 26(e) as most recently amended in 2007, and makes it consistent with the simultaneous amendments to V.R.C.P. 26(b)(5). The new proposed V.R.C.P. 26(e)(1) follows the federal rule in spelling out a general duty to supplement both a disclosure made under V.R.C.P. 26(b)(5) and a response to other forms of discovery. The new proposed V.R.C.P. 26(e)(2) departs from the federal rule by including party-deponents within the duty to supplement.

Comments on this proposed amendment should be sent by March 23, 2018, to Allan Keyes, Esq., Chair of the Civil Rules Committee, at the following address:

Allan Keyes, Esq., Chair
Civil Rules Committee
Ryan, Smith & Carbine, Ltd.
P.O. Box 310
Rutland, VT  05202-0310
ark@rsclaw.com

Proposed Addition of V.R.C.P. Rule 23(g)

The proposed addition of Rule 23(g) provides for the disbursement of residual funds that remain after satisfaction of all claims under a class action judgment or settlement.

Comments on this proposed amendment should be sent by March 23, 2018, to Allan Keyes, Esq., Chair of the Civil Rules Committee, at the following address:

Allan Keyes, Esq., Chair
Civil Rules Committee
Ryan, Smith & Carbine, Ltd.
P.O. Box 310
Rutland, VT  05202-0310
ark@rsclaw.com

Proposed Amendment to V.R.Cr.P. 54(a)(2)

The proposed 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) are deleted.

Comments on this proposed amendment should be sent by December 18, 2017, to the Hon. Thomas A. Zonay, Chair of the Criminal Rules Committee, at the following address:

Honorable Thomas A. Zonay, Chair
Advisory Committee on Rules of Criminal Procedure
Vermont Superior Court
Caledonia Unit
1126 Main Street, Suite 1
St. Johnsbury, VT 05819
Thomas.zonay@vermont.gov

Proposed Amendments to V.R.C.P. 45

The proposed 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 proposed 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 proposed 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 proposed 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 proposed amendment to Rule 45(f)(3)(A) clarifies the application of the interstate deposition and discovery provisions of the rule to lawyers not admitted in Vermont and unrepresented litigants.

The proposed 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 lawyers because they are adversary proceedings.

The proposed 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).

The proposed amendment to former Rule 45(f)(6) deletes the rule because it is now incorporated in Rule 45(f)(3)(B).

Comments on this proposed amendment should be sent by December 18, 2017, to Allan Keyes, Esq., Chair of the Civil Rules Committee, at the following address:

Allan Keyes, Esq., Chair
Civil Rules Committee
Ryan, Smith & Carbine, Ltd.
P.O. Box 310
Rutland, VT 05202-0310
ark@rsclaw.com

Proposed Order Abrogating and Replacing V.R.C.P. 79.2

The proposed amendment abrogates and replaces V.R.C.P. 79.2. The current rule focuses primarily on the recording of court proceedings by news media using conventional cameras and audio equipment for broadcasting or publication. The proposed rule reflects extensive advances in technology that place the ability to record and transmit images and sound in the hands of any person in a courthouse or courtroom with a smartphone or other portable electronic device in his or her pocket.

The rule was developed by a special committee composed of judges, court staff, members of all of the Supreme Court procedural rules committees, and representatives of the media.  Virtually identical rules will replace V.R.P.P. 79.2 and V.R.Cr.P. 53.

Comments on this proposed amendments should be sent by September 18, 2017, to the Hon. John A. Dooley at the following address:

Hon. John A. Dooley, Chair
Special Committee on Video and Electronics in the Courtroom
Vermont Supreme Court
109 State Street
Montpelier, VT  05609-0801
John.Dooley@vermont.gov

A public hearing on this amendment will be held on August 3, 2017 at 11 a.m. in Room 11 of the Statehouse.

Proposed Order Abrogating and Replacing V.R.A.P. 35

The proposed amendment abrogates and replaces V.R.A.P. 35 consistent with the simultaneous amendment to V.R.C.P. 79.2. Rule 35 incorporates the policies and language of V.R.C.P. 79.2, except where the Supreme Court structure and proceedings are different from those in the superior court.

Comments on this proposed amendments should be sent by September 18, 2017, to the Hon. John A. Dooley at the following address:

Hon. John A. Dooley, Chair
Special Committee on Video and Electronics in the Courtroom
Vermont Supreme Court
109 State Street
Montpelier, VT  05609-0801
John.Dooley@vermont.gov

A public hearing on this amendment will be held on August 3, 2017 at 11 a.m. in Room 11 of the Statehouse.

Proposed Order Promulgating Administrative Order No. 46

The proposed A.O. 46 provides for the administrative implementation and performance standards for V.R.A.P. 36, V.R.C.P. 79.2, V.R.Cr.P. 53, and V.R.P.P. 79.2 governing the use of electronic devices in the court.

Comments on this proposed amendments should be sent by September 18, 2017, to the Hon. John A. Dooley at the following address:

Hon. John A. Dooley, Chair
Special Committee on Video and Electronics in the Courtroom
Vermont Supreme Court
109 State Street
Montpelier, VT  05609-0801
John.Dooley@vermont.gov

A public hearing on this amendment will be held on August 3, 2017 at 11 a.m. in Room 11 of the Statehouse.

Proposed Amendment to Rule 44.2 of the Vermont Rules of Criminal Procedure

The proposed amendment to Rule 44.2 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.

Comments on this proposed amendment should be sent by August 7, 2017, to Hon. Thomas 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
Caledonia Unit
1126 Main Street, Suite 1
St. Johnsbury, VT 05819
Thomas.Zonay@vermont.gov

Proposed Amendments to Rule 26(b) of the Vermont Rules of Civil Procedure

These proposed amendments to Rule 26(b) clarify its provisions regarding identification and deposition of an expert who may testify and bring them more closely in line with comparable provisions of the Federal Rules of Civil Procedure. The proposed amendments have added numbering and make the provisions clearer and consistent with the remainder of the rule. 

THE COMMENT PERIOD ENDED ON MARCH 13, 2017.