Promulgated Rules Over the Last Two Years

Promulgation Order Adding A.O. 55 – Submission and Storage of Digital Evidence

This Order was promulgated on April 1, 2024; effective immediately.

Administrative Order 55 addresses how litigants are required to submit digital evidence such as video and audio recordings or high-quality photographs. Files that are not PDFs cannot be submitted through the Judiciary’s electronic filing system or stored in the electronic case management system. Traditionally, this evidence was submitted to the court on a physical device, such as a thumb drive or DVD. These methods presented several challenges, including difficulty accessing the exhibits from other counties or by the Supreme Court on appeal. VDEP provides a secure online database to store these exhibits for ready access by all court users. Digital evidence can easily be shared with other case parties. The Judiciary website contains detailed instructions on how to use VDEP.

Pursuant to § 3, in all units of the criminal division, attorneys, self-represented parties, and other case participants are required to upload any digital evidence to VDEP. 

All evidence that can be saved as a PDF file (for example, documents and photographs) must continue to be filed as required by existing procedural rules and the 2020 Vermont Rules for Electronic Filing.

Promulgation Order Amending Rule 9(b)(2) of the Vermont Rules of Small Claims Procedure

This Order was promulgated on April 1, 2024, effective July 1, 2024.

Rule 9(b)(2) is revised to update its reference to the location of the list of exemptions that formerly appeared as Form 34 of the Vermont Rules of Civil Procedure.

Promulgation Order Amending Rule 11(a) of the Vermont Rules of Civil Procedure

This Order was promulgated on April 1, 2024, effective July 1, 2024.

Rule 11(a) is amended to require every pleading, written motion, and other document that requires a signature to include the signer’s telephone number. The primary purpose of this change is to assist self-represented litigants who wish to contact an opposing attorney by telephone.

Promulgation Order Amending Rule 28(g)(1) of the Vermont Rules of Appellate Procedure

This Order was promulgated on April 1, 2024, effective July 1, 2024.

Rule 28(g)(1) is revised to update its cross-reference to the word-count limits in Rule 32. Former Rule 32(a)(7) is now (a)(4).

Promulgation Order Amending Rules 3(e) and 27(a)(3) of the Vermont Rules of Appellate Procedure

This Order was promulgated on April 1, 2024, effective July 1, 2024.

Rule 3(e) is amended to make the appellee’s docketing statement optional. In many appeals, the appellee’s docketing statement is cumulative and not necessary for the Court or parties. Although the filing is no longer mandatory, as a matter of practice an appellee should consider whether filing one is useful in a particular case. 

Rule 27(b)(3) is amended to allow a reply in support of a motion. This is consistent with the federal appellate rule, as is the time allowed for the reply—7 days after service of the response unless otherwise ordered. This amendment does not affect V.R.A.P. 27(b)(1), which allows the Court to act on a motion for a procedural order without notice to, or response from, other parties.

Promulgation Order Adding Rule 8(d) to the 2020 Vermont Rules for Electronic Filing

This Order was promulgated on April 1, 2024, effective July 1, 2024.

Rule 8 is amended to add new subdivision (d), which addresses the manner for filing exhibits into the electronic filing system. This rule concerns the filing of exhibits related to an evidentiary hearing and does not address attachments to pleadings or motions, which are covered by Rule 5(g). The rule change codifies current practice for the efiling of exhibits. The Vermont Judiciary website contains detailed instructions on how to submit exhibits with an exhibit list as the lead document and the exhibits as attachments to that lead document. The amended rule requires that each exhibit be submitted as a separate document instead of as one compiled document. It is important to separate exhibits into separate files so individual exhibits can be properly tracked and marked as offered or admitted.
 

Promulgation Order Amending V.R.C.P. 9.2

This Order was promulgated on February 5, 2024, effective July 1, 2024.

Rule 9.2(c) is deleted. Rule 9.2(c) provided that the court could take appropriate action when there was sufficient evidence that a tenant had applied for funds from the Vermont Emergency Rental Assistance Program (VERAP). VERAP was closed to new applications on October 1, 2022. By January 1, 2024, all pending applications were processed, and available funds exhausted. Therefore, Rule 9.2(c) is deleted as obsolete. 
 

Promulgation Order Amending V.R.P.P. 7(d)(e)

This Order was promulgated on February 5, 2024, effective July 1, 2024.

Rule 7(d) is amended, and Rule 7(e) is added to clarify the procedure for hearings on motions. Unlike the other divisions, the probate division has developed the practice of requiring written opposition to many motions in advance of a hearing. If no such objection is received, the probate division has the option of canceling the hearing and deciding the motion without a hearing.
 

Promulgation Order Amending V.R.P.P. 16.1(b)(d)

This Order was promulgated on February 5, 2024, effective July 1, 2024.

The amendment to Rule 16.1(b) enables the court to limit the participants in a mediation to a subset of parties and interested persons who have an interest in the issue being mediated. 

The addition of Rule 16.1(d)(2) provides the court and the participants with the options of in-person, remote, or hybrid participation in a mediation. Former (d)(2)-(8) are renumbered (d)(3)-(9).

Order Abrogating V.R.C.P. 9.3

This Order was promulgated on February 5, 2024, effective immediately.

Rule 9.3 is abrogated. This rule, entitled “Special Procedures in Certain Home Foreclosures and Mobile Home Replevin Actions” applied in all one-to-four-unit residential property foreclosure actions pursuant to 12 V.S.A. §§ 4941 or 4945 and all residential mobile home replevin actions pursuant to 9A V.S.A. § 9-609. The Rule required notice to certain homeowners who suffered a financial hardship related to the COVID-19 pandemic of possible help available from the Vermont Homeowner Assistance Program (VHAP) and allowed a stay of proceedings while the VHAP processed applications for assistance.

The VHAP closed to new requests for assistance in August 2023, and completed processing of all pending applications as of January 31, 2024. Because the program is closed, Rule 9.3 is abrogated as obsolete.

Promulgation Order Making Permanent the Amendments to V.R.S.C.P. 2

This Order was promulgated on December 11, 2023; effective immediately.

On August 14, 2023, Rule 2 was amended in an emergency order to conform the rule language to 12 V.S.A. § 5531, which raised the jurisdictional limit of the small claims court to $10,000.00, except for certain debt collection actions. The emergency amendment is now made permanent.
 

Emergency Promulgation Order Replacing Order Promulgating Amendments to Rule 6(a), (b), and (c) of the Vermont Rules for Public Access to Court Records

This Order was promulgated on December 11, 2023; effective January 1, 2024.

On October 10, 2023, the Court promulgated amendments to Rules 2, 5, 6, 7, and 9 of the Rules for Public Access to Court Records, to be effective January 1, 2024.  Those amendments included adding the following second sentence to Rule 6(b): “The exceptions to public access involve a type of case, a record, information, or a record and part of the information within it, as specified in each of the exceptions.”  Based on comments and after further consideration, the Advisory Committee on the Rules for Public Access to Court Records concluded that this additional sentence was not necessary and was confusing, and recommended that the October 10 promulgation order be revised.  The Court promulgated this order to revise the October 10, 2023 promulgation order to amend the rule without this additional sentence. The rule, as revised, becomes effective on January 1, 2024.
 

Promulgation Order Amending V.R.P.P. 47(e)

This Order was promulgated on November 6, 2023; effective January 8, 2024.

The amendment to Rule 47(e) updates the language regarding production of transcripts for probate proceedings.  The amended language conforms to parallel provisions in V.R.C.P. 72(c) and to V.R.A.P. 10(b)(2).

Promulgation Order Amending V.R.P.P. 40(d)(3)

This Order was promulgated on November 6, 2023; effective January 8, 2024.

The amendments to Rule 40(d)(3) make the procedure for motions to disqualify a probate judge consistent with that in the civil and criminal divisions, which is to refer the matter to the Chief Superior Judge or designee.

Promulgation Order Amending V.R.P.P. 12(a)

This Order was promulgated on November 6, 2023; effective January 8, 2024.

This is a housekeeping amendment that removes reference to 15 V.S.A. § 432(b), which was repealed in 1995.

Promulgation Order Amending V.R.P.P. 5.1

This Order was promulgated on November 6, 2023; effective January 8, 2024.

The order amends the service and notice requirements for beneficiaries of a decedent’s estate or trust even if they have not entered an appearance in the proceeding. The addition of Rule 5.1(b)(1)(iv) and 5.1(b)(4)(vi) make clear that the fiduciary in an estate or guardianship proceeding must provide the beneficiaries of the estate and the stated interested parties of the guardianship with the details of license to sell as set forth in the Report on License. The amendment also replaces language in the rule referring to “ward” with “person under guardianship.”

Promulgation Order Amending 2020 V.R.E.F. 5

This Order was promulgated on November 6, 2023; effective January 8, 2024.

The amendments to Rule 5(d) and (e) clarify the provisions regarding accepting and rejecting filings. The amended language provides that a filing may be accepted or rejected and that a rejection will provide the reason for the rejection. Rule 5(b) requires efilers to comply with the instructions in the efiling system. Some errors by efilers cannot be corrected by court staff after acceptance and therefore must be rejected. This includes errors such as filing into the wrong case, filing an initial filing as a subsequent filing or vice versa, or filing a criminal case with the wrong date or incorrect charge. The rule indicates that the Court Administrator will provide a list of permissible reasons for rejecting filings and make it available on the Judiciary website. New paragraph 5(d)(3) addresses failed submissions. In limited situations, efilings that do not comply with the efiling instructions or the system’s formatting requirements may result in a submission failure.  

New paragraph (d)(7) is added to provide a process for appealing a rejected efiling. The new provision indicates that the Court Administrator will provide an administrative process for reviewing the basis for a rejected efiling and delineate that process on the Judiciary website.

Rule 5(e), regarding court staff processing in the Supreme Court, is revised similarly to 5(d).

The amendment to Rule 5(g)(1) deletes former subparagraphs (g)(1)(A) and (B), which allowed motions requesting alternative forms of relief to be filed in a single document but required motions requesting independent forms of relief to be filed separately. This rule has been difficult to implement in practice because the distinction between alternative and independent forms of relief was not easily ascertainable by court staff reviewing filings. To achieve more clarity, new (g)(1)(A) requires that all motions be filed as separate lead documents. Rule 5(g) is amended regarding supporting material for motions. New 5(g)(2)(A) allows a memorandum of law in support of a motion to be filed as part of the motion document itself or as a separate document. One memorandum may be filed in support of multiple motions or responses as long as the memorandum identifies the motions or response to which it relates. Under revised (g)(2) efilers must file supporting material, including affidavits or exhibits, separately from the motion or memorandum.

Promulgation Order Amending V.R.Cr.P. 47(b) and (c) and 45(d)

This Order was promulgated on October 10, 2023; effective January 1, 2024.

The amendments to Rule 47(b)(1) clarify the motion and motion response provisions of the criminal rules. The amendments permit the filing of replies and surreplies and set out the manner and timing of filing. The addition of paragraph 47(b)(2) incorporates the provisions of former V.R.Cr.P. 45(d), which is deleted, to address the manner and timing of filing of affidavits accompanying memoranda on motions. The amendment to subdivision 47(c) provides that the court may state essential findings in writing, as an alternative to statement on the record, when factual issues are involved in determining a motion.

Promulgation Order Amending V.R.C.P. 64

This Order was promulgated on October 10, 2023; effective January 1, 2024.

The amendment to Rule 64(b)(1) deletes an obsolete reference to a District Judge. The amendments to Rule 64(b)(2), (3) and (i) delete an obsolete requirement of a finding “that the amount of the valuation is within the jurisdiction of the superior court.” The superior court has no monetary jurisdictional limit.

Promulgation Order Amending V.R.A.P. 28(e) and 30

This Order was promulgated on October 10, 2023; effective January 1, 2024.

The amendments to Rule 30 make a printed case a requirement for most appeals even where there is an appeal volume. Traditionally, the appellate rules required the appellant to submit a printed case to the Supreme Court so that the Court had ready access to the relevant materials from the trial court. In 2021, with the implementation of an electronic case management system at the Supreme Court, all cases records became electronic, and Rule 30 was amended at that time to make the printed case optional for cases that contain an appeal volume. The name printed case was retained even though no paper is filed.

The Court’s experience from working with the appeal volume for two years is that it can be inefficient and difficult to find relevant information, particularly when there are numerous documents. The amendments address this concern by making a printed case required under Rule 30(a)(1) for most appeals.  The appellant must compile a printed case with an index of its contents. Rule 30(d)(2)(A) is amended to require the index to the printed case to contain the page in the appeal volume where the document is located in addition to the page in the printed case.  Under revised 28(e)(1), if there is an appeal volume and no printed case or a document is not in the printed case, the parties must cite to the location of the document in the appeal volume. Under existing (e)(2), if there is a printed case, the briefs must reference the location of the document in the printed case.

The existing limited exceptions to the printed case requirement are retained for appeals from small claims, the Human Services Board, and Employment Security Board. In addition, under Rule 30(a)(1)(B), the printed case may be waived on the Court’s initiative or pursuant to a motion.

Promulgation Order Amending V.R.P.A.C.R. 2, 5(i), 6(a)(b)(c), 7(a) and 9(a)(b)

This Order was promulgated on October 10, 2023; effective January 1, 2024.

The amendments are the result of a comprehensive review of the exceptions to public access in V.R.P.A.C.R. 6(b) and related provisions of the rules. Some of the changes to the exceptions include: clarifying the items that are not publicly accessible related to a search warrant in 6(b)(2); removing 6(b)(3) regarding furlough reports; deleting 6(b)(12) regarding juvenile proceedings as duplicative of 33 V.S.A. § 5117(c); consolidating three existing exceptions regarding medical and mental-health information into one exception and using language from HIPAA; combining three financial-information exceptions into one; clarifying the discovery exception in 6(b)(16); and adding a provision to exempt proposed prefiled exhibits from public access.

Other amendments include updating definitions to use the term “record” instead of “document” and to replace “nonpublic” with “not publicly accessible” in Rule 7.

New Rule 5(i) clarifies that parties, their lawyers, and guardians ad litem do not have a specific right to access to certain records that are exempt from public access.

Promulgation Order Amending A.O. 9, Rule 14.A.

This Order was promulgated on October 10, 2023; effective January 1, 2024.

The amendment clarifies that if a disciplinary or disability matter is assigned to a hearing panel before the expiration of a member’s term, a member whose term expires during the matter may serve to the conclusion of the matter.

Promulgation Order Amending Administrative Order No. 50

This Order was promulgated on October 10, 2023; effective immediately.

Administrative Order 50, which authorizes a pilot project for service by the Office of Child Support in certain cases, is amended to expand the project to Addison and Bennington counties.

Promulgation Order Amending Administrative Order No. 11

This Order was promulgated on October 10, 2023; effective January 1, 2024.

The amendments to A.O. 11 § 2 update the list of rules committees to which the order explicitly applies to add the Advisory Committee on Rules for Electronic Filing, which was made permanent in September 2022. The list of rules in § 2 is also updated to add the Vermont Rules for Environmental Court Proceedings, Vermont Rules for Electronic Filing, Rules of Small Claims Procedure, and Rules for Mandatory Continuing Legal Education.  

The amendment to § 5 updates the language regarding publishing a notice of rule-making by the Court Administrator. In addition to publication in a newspaper, the Court Administrator may provide public notice through the Judiciary website, social media, and on-line forums.

The amendment to § 7(b) replaces “tape recording” with “transcript or audio recording” to modernize the language given current technology.

New § 9 is added to provide guidance regarding the effective date for rules. Section 9 provides that ordinarily rules will be adopted with an effective date at least 60 days from the date of promulgation and with an effective date of either July 1 or January 1. The regularized effective date was prompted by a suggestion to the Advisory Committee on the Rules of Civil Procedure by a member of the bar regarding the difficulty of following rule changes and the varied effective dates. The civil rules committee, with agreement from the criminal, probate, family, evidence, public access, and electronic filing committees, requested that the Court adopt regularized effective dates. Normalizing the effective date for amendments to rules will allow more predictability for both the bench and the bar.  

Former § 9 is renumbered § 10 and continues to provide that some or all requirements of the administrative order may be dispensed with when the public interest requires. This section applies to the provisions of proposed new § 9. There may be situations where a rule needs to become effective before the 60-day period passes and outside of the regularized effective dates of July 1 or January 1.

Emergency Promulgation Order Amending V.R.S.C.P. 2

This Order was promulgated on August 14, 2023; effective immediately.

This emergency amendment is made to conform with an amendment to 12 V.S.A. § 5531 raising the jurisdictional limit for small claims proceedings to $10,000.00, except for certain debt collection actions.  See 2023, No. 46, § 9.

The Advisory Committee has been directed to review any comments received and advise the Court whether the amendments should be revised or remain permanent.

Comments on this emergency amendment should be sent by October 23, 2023, 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

Emergency Promulgation Administrative Order No. 54

This Order was promulgated on August 7, 2023; effective August 9, 2023.

The purpose of Vermont Supreme Court Emergency Order Promulgating Administrative Order No. 54 is to increase access to legal services to flood victims by relaxing the court rules that apply to the attorney licensing process in certain circumstances. In particular, the emergency order eases the process to obtain an active law license for two groups: (1) Vermont lawyers with inactive law licenses and (2) out-of-state lawyers. A “Limited Emergency Pro Bono Law License” authorizes a licensee to provide pro bono legal services solely for matters related to the Flood Emergency until such time that the Court directs.

Administrative Order 54 is linked here:

Guidance regarding the application process and eligibility criteria are linked here: https://www.vermontjudiciary.org/Limited-Emergency-Pro-Bono-Law-License-LEPL-INSTRUCTIONS-GUIDANCE

The application form is linked here:

https://www.vermontjudiciary.org/Limited-Emergency-Pro-Bono-Law-License-REQUEST-FORM

Promulgation Order Amending Administrative Order No. 50

This Order was promulgated on August 7, 2023; effective August 7, 2023.

Administrative Order 50, which authorizes a pilot project for service by the Office of Child Support in certain cases is amended to expand the project to Washington County.

Promulgation Order Amending Administrative Order No. 4; § 6(a)

This Order was promulgated on July 13, 2023; effective July 1, 2023.

Administrative Order 4, § 6(a) is amended to increase the hourly compensation for assigned counsel. Pursuant to 13 V.S.A. § 5205(a), the Supreme Court sets “reasonable rates of compensation” for assigned counsel. The compensation of $50 per hour was established in 1993 and has not been increased. Both the Vermont Bar Association and the Office of the Defender General support an increase in compensation.

Promulgation Order Amending A.O. 38

This Order was promulgated on July 10, 2023, effective October 2, 2023.

Administrative Order No. 38 is amended to conform to concurrent amendments to V.R.F.P. 17 and V.R.C.P. 43.1. The amendment removes the reference to juvenile delinquency proceedings in the title and in § I because delinquency (and youthful offender) proceedings are now addressed in revised V.R.F.P. 17(c), which incorporates V.R.C.P. 43.1 for certain types of nonevidentiary proceedings. Subdivision I(c) is amended to update the cross reference to the factors for a court and parties to consider in evaluating whether to allow remote audio or video testimony by agreement under (b)(2), which now incorporates by reference consideration of and compliance with the provisions of V.R.Cr.P. 26.2.

Subdivision I(a) addresses circumstances of remote participation by the court and the parties where the presence of the defendant is not required by law; subdivision (b) prescribes circumstances in which parties may participate remotely by agreement of the parties, and in other proceedings where the defendant’s presence is required by law. In contrast to I(a)(1), paragraph (b)(1) reflects the concern that where the judge must serve as a factfinder, and in other circumstances in which a defendant’s presence is required by law, the judge may preside remotely only upon agreement of the parties, and not on the judge’s own motion and over objection.

Subdivision I(c) directs that the court and parties must observe the requirements of V.R.Cr.P. 26.2 in conjunction with any proposal for remote witness testimony by agreement.

Promulgation Order Amending 2020 V.R.E.F. 3(c) and 12, V.R.P.P. 5(e) and Adding V.R.P.P. 78

This Order was promulgated on July 10, 2023, effective October 2, 2023.

These amendments address the need in some probate proceedings for the court to inspect paper documents during consideration of the case. The amendment to 2020 V.R.E.F. 3(c) mandates retention of a paper document by the court when required by statute or other provision of law. The amendment to 2020 V.R.E.F. 12 directs that the court must retain a paper document even after it has been converted to electronic form if otherwise required by law. Contemporaneous amendment of V.R.P.P 5(e) and addition of V.R.P.P 78 delineate testamentary documents and vital records that must be provided on paper subject to retention and return to the parties upon completion of the case.

Promulgation Order Amending V.R.P.P. 43.1

This Order was promulgated on July 10, 2023, effective October 2, 2023.

The amendments to Rule 43.1 incorporate lessons learned regarding remote and hybrid proceedings based on the experience of the bar, judges, court staff, and the public.

Amended Rule 43.1(a) provides a default of remote proceedings with hybrid and in-person proceedings permissible with court permission. Most probate proceedings are conducted with relaxed evidentiary rules. Probate proceedings also often involve self-represented parties and individuals from a wide geographic area, including outside Vermont. The experience during the pandemic demonstrated that remote participation provides a good balance between the cost and convenience for the participants and the overall effectiveness of the proceeding, which is consistent with the scope of the Rules, set out in V.R.P.P. 1.

Amended Rule 43.1(b) contains new definitions for hybrid and remote proceedings. Under 43.1(c)(1), the court has discretion to issue standing orders or case-specific orders for hybrid or in-person participation based on a consideration of any relevant factors provided in (g). The parties may also move or stipulate to hybrid or in-person participation under (c)(2). In assessing whether to grant or deny a motion or stipulation, the court is guided by a consideration of the factors in subdivision (g). Because a hybrid or in-person hearing requires the availability of a courtroom and additional court staff, when a motion is granted, the court may need to reschedule the proceeding. The amendments to Rule 43.1(d) pertain to the judge to presiding remotely. The amendments to Rule 43.1(e) address the required notice to the parties in advance of the hearing. The notice must specify whether the proceeding is in person, remote, or hybrid and describe the process for requesting an alternate means of participation. Subdivision (f) allows exceptions to the notice and timing requirements of the rule. Rule 43.1(g) incorporates the factors from former (c)(6) and (d)(3) and (4) for the court to consider in evaluating whether to have hybrid or in-person proceedings. New 43.1(h) addresses the conduct of the proceedings and allows the court to impose conditions to ensure the fairness of the proceeding, ensure reliability of the evidence, or to protect public health. Finally, former 43.1(e), regarding technical standards, is relabeled (i).

Promulgation Order Amending A.O. 41 §§ 4 and 16

This Order was promulgated on July 10, 2023, effective October 2, 2023.

The amendment to Administrative Order 41, § 4(a) clarifies that the attorney licensing statement must be submitted in a manner approved by the State Court Administrator. The revised text is consistent with current practice in which relicensing is done through an online portal and not using a paper form. Amended § 4(c), regarding an attorney’s obligation to report any changes to contact information, clarifies that attorneys are responsible for keeping their contact information current and notice sent to the registered email address is sufficient even if not received due to a failure to update the information.

The amendment to Administrative Order 41, § 16 corrects a cross reference to Vermont Rule of Appellate Procedure 45.1 regarding appearance of attorneys not admitted in Vermont.

Promulgation Order Amending A.O. 47 (Technical Standards for Remote and Hybrid Hearings)

This Order was promulgated on July 10, 2023, effective October 2, 2023.

Administrative Order No. 47 is amended in conjunction with amendments to V.R.C.P. 43.1 and related rules given the experience of the bar, judges, court staff, and members of the public with fully remote and hybrid proceedings over the last few years.

As originally adopted, AO 47 had separate standards for video and audio conferencing. Amended § 1 now provides one set of standards applicable to both remote and hybrid proceedings. In general, participants must be able to hear all other participants during proceedings. Where participation is by video conference, participants must also be able to see other participants. The amended rule retains the requirement that all participants must have access to documents and other types of exhibits. It also continues to require that parties be able to confidentially consult with counsel.

Section 2, formerly about audio proceedings, now addresses access to public proceedings for nonparticipants. For fully remote proceedings, new § 2(a) states that when requested the public will be provided with a means to view and hear the proceeding remotely, absent extraordinary circumstances. Remote viewing may be through a link to a video platform or through a livestream. For hybrid proceedings, new § 2(b) states that the public may hear and view the proceeding in person in the courtroom and may also be able to observe remotely. For either remote or hybrid proceedings, an inability to accommodate a request to observe remotely will not serve as grounds to continue the proceeding.  

Promulgation Order Amending V.R.C.P. 43.1

This Order was promulgated on July 10, 2023, effective October 2, 2023.

Vermont Rule of Civil Procedure 43.1 was originally promulgated in 2019 to provide a uniform process for participation by audio and video conference. The COVID-19 pandemic reached Vermont less than a year later and court procedures were modified after the Supreme Court declared a judicial emergency. Remote and hybrid proceedings became much more widespread. The Court created the Special Advisory Committee on Remote Hearings to study, advise the Court about, and propose potential permanent rule changes governing remote participation in court proceedings. The amendments to Rule 43.1 are the result, in large part, of the Special Advisory Committee’s study and analysis of the experience of members of the bar, judges, court staff, and members of the public with fully remote and hybrid proceedings.

The promulgated rule contains different standards for nonevidentiary and evidentiary proceedings, relaxes the timelines for requesting remote participation, and introduces the concepts of remote and hybrid proceedings. Paragraph (a)(1) is added to set a default of in-person participation. Subdivision (b) adds definitions for evidentiary proceeding, hybrid proceeding, and remote proceeding. New subdivision (c) addresses nonevidentiary proceedings, which can be remote or hybrid in the court’s discretion. Subdivision (d) addresses evidentiary proceedings, which can be remote or hybrid for good cause based on a consideration of the relevant factors.  Under the amended rule, judges have the discretion to schedule remote and hybrid nonevidentiary proceedings while evidentiary proceedings require a determination of good cause based on a consideration of the factors in subdivision (h). Judges may issue standing orders for categories of proceedings or provide for remote or hybrid proceedings on a case-by-case basis. The court can do this on its own initiative or based on a motion or stipulation of the parties. Subdivision (e) revises the former (c)(4) regarding the judge presiding from a remote location. Subdivision (f) sets out the requirements for the hearing notice to require information on how the hearing will be conducted and how to request a different type of participation. Subdivision (g), entitled Exceptions, revises former (c)(5), previously entitled “Emergencies,” to allow exceptions from the rule’s time and notice requirements in certain circumstances. Subdivision (h) includes the factors for a court to consider in determining if there is good cause to have an evidentiary remote or hybrid proceeding.  Subdivision (i) addresses the conduct of the proceedings. New subdivision (j) provides that jury selection is governed by the standards for evidentiary proceedings. New subdivision (k) applies to civil stalking proceedings under 12 V.S.A. §§ 5131-5138 and sets a default of hybrid proceedings. Former subdivision (d), on technical standards, is relabeled as subdivision (l).

Promulgation Order Amending V.R.F.P. 1(a)(1) and 17

This Order was promulgated on July 10, 2023, effective October 2, 2023.

Vermont Rule for Family Proceeding 1(a)(1) is amended to make V.R.C.P 43.1 applicable to delinquency proceedings for the purposes of remote proceedings under V.R.F.P. 17.

The amendments to Vermont Rule for Family Proceedings 17 update its provisions concurrent with changes to V.R.C.P. 43.1. Rule 17 as originally adopted in 2009 authorized testimony by telephone in family division proceedings. The rule was amended in 2019 concurrent with the adoption of V.R.C.P. 43.1, which addressed appearance by video and audio conference generally. The amendment to V.R.F.P. 17(a) clarifies that V.R.C.P. 43.1 applies in parentage proceedings in addition to the existing named proceedings under V.R.F.P. 4 (divorce, annulment, and separation).  The amendment to V.R.F.P. 17(b) modifies the application of V.R.C.P. 43.1 in juvenile matters. New V.R.F.P. 17(c) makes V.R.C.P. 43.1 applicable in juvenile delinquency and youthful offender proceedings in a modified way.  All status conferences and pretrial proceedings are subject to V.R.C.P. 43.1 but other proceedings are in person absent good cause.  New V.R.Cr.P. 26.2 regarding testimony of a remote witness is incorporated for these proceedings given the applicable confrontation rights.  

V.R.F.P. 17(d), formally 17(c), regarding mental-health proceedings provides that hearings for involuntary treatment, continued treatment, and involuntary medication are scheduled as remote proceedings. However, if a party reasonably in advance of a hearing requests, or the court on its own initiative orders, the proceedings will be in-person. The intent of the change is that a request by a party for an in-person proceeding is granted automatically, i.e., the request is not a motion that the court must rule upon. Likewise, the court may, on its own initiative, schedule an in-person hearing.

V.R.F.P. 17(e), formally 17(d), pertaining to minor guardianship proceedings, is unchanged.

New subdivision (f) governs hearings in abuse-prevention hearings under Rule 9. The rule adopts the identical language governing stalking proceedings under new V.R.C.P. 43.1(k). Both rules provide that proceedings will be hybrid unless upon a party’s request or the court’s own initiative the court orders participation by a particular method.

New subdivision (f) incorporates V.R.C.P. 43.1 into other proceedings in the family division that are not otherwise specifically addressed in the rule.

Promulgation Order Amending V.R.Cr.P. 26(c) and (d)

This Order was promulgated on July 10, 2023, effective October 2, 2023.

The amendment to Rule 26(c) updates the existing rule to conform to the 2020 amendment to Federal Rule of Evidence 404(b), by imposing additional notice requirements on the State in seeking the introduction of other crimes, wrongs, or acts evidence in a criminal case. Under F.R.E. 404(b) the prosecution must: (1) identify the evidence that it intends to offer; (2) articulate the nonpropensity purpose for which the evidence is offered, and (3) state the basis for concluding that the evidence is relevant in light of this purpose. Although the text of Vermont Rule of Criminal Procedure 26(c) itself has not required an articulation of the nonpropensity purpose for which the evidence is being offered, Vermont caselaw requires the proponent seeking to admit evidence under Rule 404(b) to state the purpose of the evidence and the reasoning.  The amendment adds these requirements into the rule.

The amendment of Rule 26(d) makes nonsubstantive amendments to terminology to eliminate offensive language, and to comport with similar amendments made in 2020 to Vermont Rule of Evidence 804a (and to the 2023 amendment of V.R.E. 807). The phrase “person with a mental illness, or an intellectual or developmental disability” is substituted for former language, in referring to the individuals whose hearsay statements may be admissible at trial pursuant to V.R.E. 804a. There is no substantive change to the existing provisions of V.R.Cr.P. 26(d).

Promulgation Order Adding Rule 26.2 to the Vermont Rules of Criminal Procedure and Amending A.O. 47

This Order was promulgated on June 5, 2023, effective September 5, 2023.

New Rule 26.2 allows for video conference testimony in evidentiary criminal proceedings, upon agreement of the parties and approval by the court. In contrast to the provisions of V.R.C.P. 43.1 and V.R.P.P. 43.1, video testimony under the proposed rule may not be provided over defendant’s objection, and absent express waiver, in recognition of the Sixth Amendment and Article 10 rights to confrontation and cross examination accorded to the accused. The rule sets the timing and required content of a written notice of intent to provide testimony of a witness via video conference at trial. The new rule requires the court to address the defendant directly in open court and determine that the defendant understands the nature of the rights being waived. The rule sets out the requirements for providing video conference testimony. Finally, the rule provides criteria for the court to consider if a party seeks to withdraw from agreement for testimony of a witness by video teleconference.

The amendment to A.O. 47 § 1 incorporates the technical standards currently applicable in video and audio proceedings under V.R.P.P. 43.1 and V.R.C.P. 43.1 to proceedings under V.R.Cr.P. 26.2.

Emergency Promulgation Order Amending V.R.P.P. 80.10(c)(3)

This Order was promulgated on May 8, 2023, effective immediately.

Rule 80.10(c), regarding appointment of a guardian ad litem in specified proceedings, was adopted in 2020. As adopted, it allows a written objection to appointment of a guardian ad litem to be filed “no less than 7 days after appointment.” The word “more” is substituted for the word “less” to reflect the original intent of the 2020 amendment, which was to limit the time for objection.

Promulgation Order Amending V.R.P.P. 66

This Order was promulgated on April 10, 2023, effective July 3, 2023.

The amendments to Rule 66 reflect and clarify current practice regarding inventories and accounts.

Rule 66(b) is new. Rule 66(b)(1) contains a general requirement that, unless waived by the court for good cause, an estate inventory must contain a description and value of the decedent’s assets. The rule sets forth specific requirements for the content of inventories in the areas of real property, mobile homes, motor vehicles, high value items, and financial institution accounts. Former Rules 66(b) and (c) are redesignated (c) and (d) without change. New Rule 66(e) provides accounting standards consistent with 14 V.S.A. §§ 1055, 1057. Former Rules 66(d)-(f) are redesignated (f)-(h) without change.

Rule 66(i) is new. It spells out a process that enables a judge to deal with an inadequately prepared or presented inventory or account or other failure to comply with the provisions of Rule 66(a)-(h) by providing for their preparation “by a licensed professional with experience in fiduciary accounting.”

Promulgation Order Amending A.O. 9, Rules 3.A(4), 13.D(3), 16.F(2), 17.C, 20.F, 25, 26.D, and 27.H and I (Permanent Rules Governing Establishment and Operation of the Professional Responsibility Program)

This Order was promulgated on April 10, 2023, effective July 3, 2023.

The amendments remove gender-specific pronouns from Administrative Order 9 and are not intended to change the substance of the rules.

Order Amending Administrative Order No. 18

This Order was promulgated on March 6, 2023, effective immediately.

The amendments to Administrative Order No. 18 update and clarify the duties of the Chief Superior Judge outlined in § 4.

Order Amending Rules 6(b)(9) and 11(c) of Vermont Rules for Public Access to Court Records

This Order was promulgated on February 6, 2023, effective April 10, 2023.

The amendment to Rule 6(b)(9)(A) clarifies the existing provision that exempts the complaint and affidavit from public access until defendant has an opportunity for a hearing. The revised rule provides that temporary orders granting relief are publicly accessible. The amended rule clarifies the public access status of the complaint, affidavit, and resulting order when relief is denied.  Where temporary relief is denied and plaintiff does not pursue the case, the complaint, affidavit, and order denying relief remain nonpublic. Where temporary relief is denied and plaintiff does pursue the case, the order denying relief is not publicly accessible until the defendant has the opportunity for a hearing pursuant to statute.

The amendments to Rule 6(b)(9)(B) and (C) implement the restrictions of public access created by V.R.F.P. 9(b) and (g)(1) and V.R.C.P. 80.10(b). The purpose of the family and civil proceeding rules is to protect location and access information of the abuse-prevention proceeding plaintiff, and in a limited circumstance the defendant, from being accessible to the other party, the other party’s lawyer, or the public.

The amendment to Rule 11(c) reflects the fact that the Research and Information Services Division of the Court Administrator’s office has been reorganized and renamed as the Technology Services Center.

Order Amending Rule 4.3(a) of the Vermont Rules for Family Proceedings

This Order was promulgated on February 6, 2023, effective June 5, 2023.

The amendment to Rule 4.3(a) clarifies provisions related to consolidation of relief-from-abuse cases and domestic cases.  The amended language specifies that the rule applies to all actions subject to Rule 4.0 where a relief from abuse action is filed either prior to or following the filing of the action subject to Rule 4.0. The actions subject to Rule 4.0 are set forth in Rule 4.0(a)(1). In addition to divorce and annulment actions, they include legal separation, dissolution of a civil union, parentage, desertion, and nonsupport. The amendment to Rule 4.3(a)(3) automatically consolidates cases where a relief from abuse action is filed after the Rule 4.0 action and a temporary order is issued or, in the case of a denial, a request for hearing is filed, when one of the following three circumstances exists: (1) the complaint in that action is still pending; (2) there are pending post-judgement motions; or (3) the requests for relief in the abuse-prevention action conflict with an outstanding order in the action subject to Rule 4.0.

Order Amending Rules 9(b)(1), 11, and 13(e) of the Vermont Rules of Admission to the Bar of the Vermont Supreme Court

This Order was promulgated on February 6, 2023, effective April 10, 2023.

The amendment to Rule 9(b)(1) clarifies that an applicant must be on active status in the other U.S. jurisdiction to qualify for the exemption from the five-years-from-graduation requirement.

In conjunction with a similar amendment to Rule 13(e), the amendment to Rule 11 clarifies what good cause means in the context of the Board of Bar Examiners’ determination of whether to extend the time within which the Board will accept an MPRE score.

Order Promulgating Amendments to Rule13.E of Administrative Order No. 9, Permanent Rules Governing Establishment and Operation of the Professional Responsibility Program

This Order was promulgated on January 9, 2023, effective March 13, 2023.

The amendment clarifies that when a hearing panel suspends or disbars a lawyer, the decision is stayed during the duration of the appeal. This ensures that the lawyer (1) will not have to serve a suspension prior to receiving an opportunity to challenge it; and (2) cannot moot the Court’s review of a disciplinary decision by “serving” a suspension before the Court fully reviews and disposes of a disciplinary matter.

This amendment is consistent with the law on stays in other civil proceedings and current practice. The proposed new language does not change or alter the language in Rule 22, which provides the Court with authority to issue an interim suspension of the respondent’s law license for threat or harm.

Order Permanently Adopting Amendments to Rule 79.2 of the Vermont Rules of Civil Procedure, Rule 53 of the Vermont Rules of Criminal Procedure, Rule 79.2 of the Vermont Rules of Probate Procedure, Rule 35 of the Vermont Rules of Appellate Procedure and Administrative Order 46

This Order was promulgated on December 12, 2022, effective immediately.

These rules were amended on May 1, 2019, effective September 3, 2019, and further amended on September 4, 2019, to provide guidelines for the possession and use of recording and transmitting devices in the courtroom to accommodate advances in technology. When adopted, the amendments contained a sunset provision and a requirement that the advisory rules committees report back to the Court on whether the amendments should be made permanent. The rules committees have not reported any objection to the current state of the rules or proposed any further revision. Therefore, the 2019 amendments are now made permanent.

Promulgation Order Amending Rule 79.1(e) of the Vermont Rules of Civil Procedure and Rule 44.2(b) of the Vermont Rules of Criminal Procedure, Rule 79.1(d) of the Vermont Rules of Probate Procedure and Rule 15(a) of the Vermont Rules for Family Proceedings

This Order was promulgated on December 12, 2022, effective February 13, 2023.

Rule 79.1(e) is amended to make clear that admission pro hac vice is a matter of course on motion supported by the pro hac vice licensing card issued by the Court Administrator pursuant to A.O. 41, § 16. The card is issued on payment of fee and on the basis of the applicant’s certification that the applicant is not suspended or disbarred in any jurisdiction and is in good standing and admitted to practice in the licensing state. The licensing card is sufficient to show the court where the case is pending that the applicant is in good standing and not subject to any discipline. The court retains control over the conduct of the out-of-state attorney and of the sponsoring attorney, whose signature is on the motion, and the court may revoke the admission for good cause. This amendment is made with contemporaneous amendment of parallel provisions of V.R.Cr.P. 44.2(b), V.R.P.P. 79.1(d) and V.R.F.P. 15(a).

Order Promulgating Emergency Amendment to Rule 56(b) of the Vermont Rules of Civil Procedure

This Order was promulgated on December 12, 2022, effective January 1, 2023.

Rule 56(b) is amended without notice and comment to restore language consistent with the federal rule allowing a party to file for summary judgment “at any time until” 30 days after the close of all discovery that was changed in the 2022 amendment to require a party to file “within” the 30-day period. The amendment clarifies that a party may file a motion for summary judgment before as well as after the close of discovery.

Promulgation Order Amending Rule 807 of the Vermont Rules of Evidence

This Order was promulgated on November 7, 2022, effective January 9, 2023.

Rule 807 is amended to correct the constitutional deficiencies described by the Vermont Supreme Court in State v. Bergquist, 2019 VT 17, 210 Vt. 102, 211 A.3d 946, regarding when a witness can testify out of sight and hearing of a defendant. Subdivisions (c) and (f) are amended to ensure the Rule comports with the minimum constitutional standard set in Maryland v. Craig, 497 U.S. 836 (1990), as interpreted in Bergquist. To make the showing of necessity needed to justify testimony outside of a defendant’s presence, the State must 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.  

Subdivision (a) is amended to correct 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. See 2013, No. 96 (Adj. Sess.) (eff. July 1, 2014), An Act Relating to Respectful Language in the Vermont Statutes Annotated. The amendment adopted the terms used in the statute to describe individuals with mental or intellectual disabilities and referred to the newly enacted statute for the definitions of those terms. 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” to prevent the expansion of a rule that was originally intended to be applied narrowly, given its impact on the right of confrontation.

Order Promulgating Addition of Rules 9.2 and 9.3 to the Vermont Rules of Civil Procedure

This Order was promulgated on September 13, 2022, effective October 1, 2022.

New Rules 9.2 and 9.3 provide special procedures in residential eviction proceedings and certain home foreclosures or replevin actions. The rules stem from requirements in Administrative Order No. 49 ¶¶ 21 and 22 related to eviction and foreclosure proceedings during the COVID-19 pandemic. The two rules contain provisions related to the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act and federal appropriations for Vermont Emergency Rental Assistance (VERAP) and Vermont Homeowner Assistance Program (VHAP) funds.

Rule 9.2 applies to all actions for eviction of a tenant from residential housing based solely or in part on nonpayment of rent. Rule 9.2(b) requires plaintiffs to declare compliance with the notice requirement of the CARES Act. Rule 9.2(c) pertains to VERAP, which will stop accepting new applications after September 30, 2022. Under the rule, when either party presents the court with evidence that the tenant has filed a VERAP application, the court may take appropriate action.

Rule 9.3 requires plaintiffs in covered foreclosure and replevin actions to serve homeowners with notice of the availability of VHAP funds. Under 9.3(c), if homeowner has applied for funds and so requests, there is an automatic stay.

Pursuant to the promulgation order, the Advisory Committee is to review the operation of these rules and to advise the Court when appropriate, but not later than July 1, 2023, whether the rules should be terminated in whole or in part, extended, revised, or made permanent.

Emergency Order Promulgating Amendments to Rules 6(19) and 9 of the Vermont Rules of Supreme Court for Disciplinary Control of Judges

This Emergency Order was promulgated on September 13, 2022, effective October 1, 2022.

Rule 6(19)(a) is amended to allow a complaint to be filed with the Chair of the Board by email. The complaint must be submitted as an attachment to the email and must be sent to the email for the Chair that is associated with the Board. Following the COVID-19 pandemic, the Board was authorized to conduct its business by email under Administrative Order 49, ¶ 15(c). This was an efficient and helpful means of communication and therefore has been incorporated into the permanent rules.

Rule 9 is amended to incorporate provisions related email filing and remote participation that were first implemented in response to the COVID-19 pandemic under Administrative Order 49, ¶ 15(c) and (d). Rule 9(1) is amended to provide that a judge’s answer may be filed by the same means as provided under 6(19)(a), which is simultaneously amended to include email. Rule 9(5) and (6) are amended to allow the Board to preside remotely or to allow or require remote participation pursuant to V.R.C.P. 43.1.

Comments on these emergency amendments should be sent by November 14, 2022, to Barbara Blackman, Chair, Judicial Conduct Board at JCB@rsclaw.com .

Order Promulgating the Addition of Rule 1.1 to the Vermont Rules for Family Proceedings

This Order was promulgated on September 13, 2022, effective November 14, 2022.

Rule 1.1 implements the provisions of Chapter 52A of Title 33, Youthful Offenders, 2017, No. 72 (Adj. Sess.). Section 7 of Act 72 directs the Vermont Supreme Court to consider the adoption of appropriate rules. For the most part, the provisions of Rule 1.1 track the procedural provisions outlined in statute. The Supreme Court’s Advisory Committee on Family Rules concluded that the consolidation of these provisions into a rule would enhance consistency of practice in youthful offender proceedings.

Promulgation Order Amending Rule 9(b) and (g)(1) of the Vermont Rules for Family Proceedings

This Order was promulgated on September 13, 2022, effective November 14, 2022.

The amendments to Rule 9(b) and (g)(1) add email addresses if available to the contact information that a litigant is required to file with the court

Promulgation Order Amending Rules 1.2, 1.6, 1.15A, 3.1, 4.4, 5.3, 5.5, 8.3, and 8.4 of the Vermont Rules of Professional Conduct

This Order was promulgated on September 13, 2022, effective November 14, 2022.

Under amended Rule 1.2(c), a lawyer that has not entered a limited appearance but provides assistance in drafting a document must advise the client to comply with any rules of the tribunal regarding participation by a lawyer in support of a self-represented litigant. A new comment clarifies that, while the client controls the objectives of a representation, a lawyer does not violate any professional duty to the client by agreeing, for instance, to extensions of time or by affording professional courtesy to opposing counsel, parties, and witnesses while pursuing a client’s objectives. An additional amendment to a comment clarifies that a lawyer may counsel a client regarding the validity, scope, and meaning of Title 7, chapters 31 thru 39, regarding cannabis regulation, so long as the lawyer abides by the existing requirement of advising the client regarding the potential consequences of the client’s conduct under related federal law and policy.

New paragraph 1.6(c)(3) clarifies that a lawyer does not violate Rule 1.6 by disclosing information relating to the representation of a client by making a confidential inquiry of bar counsel on matters related to that representation. Comment [11] is amended to conform to proposed new paragraph (c). An amendment to 1.6(c)(5) is added to track the ABA Model Rule and to allow lawyers to conduct limited conflict checks prior to and in the process of changing employment. New comments 16 and 17 address paragraph (c)(5).

Paragraph 1.6(d) reflects that the modern practice of law includes possession of information related to the representation of client in many forms, including information that is stored electronically or digitally, and therefore clarifies that V.R.Pr.C. 1.6 applies to the electronic transmission and storage of information relating to a representation, and makes explicit that the duty under Rule 1.6 is broader than avoiding affirmative disclosures of information relating to the representation of a client.

New V.R.Pr.C. 1.15A(b), regarding use of pooled interest-bearing trust accounts, provides additional protection to clients and third persons for whom lawyers hold funds in trust. New paragraphs (c) and (d) clarify that it is not solely a lawyer or law firm’s pooled interest-bearing trust accounts, more commonly referred to as “IOLTA accounts” or “client trust accounts,” that are subject to compliance reviews and audits. New comments [1] to [3] are added to explain the limited appropriate uses of client trust accounts.

The amendment to Rule 3.1 makes clear that a lawyer who is representing a client in a matter that could result in the client being placed on an order of hospitalization does not violate the rule by holding the State to its proof. The change conforms to the ABA Model Rule.

The amendment to Rule 4.4(b), regarding inadvertent receipt of data, replaces “document” with “information” and moves what was stated in comment [2] into the body of the rule, thereby clarifying a lawyer’s duties. Comment [4] is added to clarify that Rule 4.4(b) is limited to a lawyer’s ethical obligation. The rules of procedure might impose additional obligations or duties related to the receipt of documents or electronically stored information that were inadvertently produced.

The new comments [3] and [4] to V.R.Pr.C. 5.3 regarding nonlawyer assistants are taken from the ABA Model Rules of Professional Conduct. The comments address the fact that it has become increasingly common for lawyers to contract for services with persons and entities who are not employed by the lawyer or the lawyer’s firm, including vendors who store information related to the representation of a lawyer’s client. Lawyers must be mindful of the duty to ensure that nonlawyer assistants act in a way that comports with a lawyer’s professional obligations and responsibilities.

The addition of comment [22] to Rule 5.5, which concerns the unauthorized practice of law, addresses practice by lawyers working remotely. The comment indicates that lawyers who are not admitted in Vermont may practice remotely in other jurisdictions while physically present in Vermont if they comply with a list of restrictions, including not holding themselves out as being admitted in Vermont. The amendment is consistent with an ABA opinion on lawyers working remotely and the decisions of several other jurisdictions.

The amendment to comment [4] of Rule 8.3, regarding the reporting of misconduct, clarifies that inquiries of bar counsel are confidential and bar counsel is exempt from the reporting requirement of Rule 8.3 and must keep confidential all information related to inquiries and requests for guidance.

The amendment to Rule 8.4, which defines professional misconduct, conforms the rule with the ABA Model Rule and harmonizes Rule 8.4(b)’s definition of “serious crime” with the definition of “serious crime” that appears in Administrative Order 9, Rule 21(c).

Promulgation Order Amending V.R.S.C.P. 6 and V.R.C.P.80.6(n)

This Order was promulgated on September 13, 2022, effective October 1, 2022.

Small Claims Rule 6 is amended to incorporate provisions regarding remote hearings for small claims actions and for judicial bureau proceedings. See V.R.C.P. 80.6(d)(4) (making V.R.S.C.P. 6 applicable to judicial bureau proceedings). In response to health concerns related to the COVID-19 pandemic, the Supreme Court declared an emergency in March 2020 and issued Administrative Order 49 making temporary changes to court rules and operations. Under ¶ 5(a), A.O. 49 authorized remote participation by video or audio in the civil division. Under ¶ 5(c), A.O. 49 authorized the hearing officer in judicial proceedings to preside remotely and ordered other persons to participate by remote audio or video.

Remote hearings were very effective in the judicial bureau and the current amendments allow remote proceedings to continue. Existing 6(a) is divided into four paragraphs. New 6(a)(2)(A) provides that in a nonjury hearing, the court may preside remotely and require other persons to participate remotely by either audio or video. Participants can request an in-person hearing and the court can grant the motion based on its consideration of the relevant factors in V.R.C.P. 43.1. For trial by jury, Rule 6(a)(2)(B) incorporates the procedures in V.R.C.P. 43.1.

Rule 80.6 is amended in several places to correct statutory references and update terminology.

Rule 80.6(a), (i), and (m) are amended to remove reference to “district court” and replace it with “Criminal Division of the Superior Court” to reflect the statutory change made by 2009, No. 154 (Adj. Sess.), §§ 236, 238, codified at 4 V.S.A § 1107(a). Rule 80.6(c)(4) is amended to correct a statutory reference by substituting 24 V.S.A. § 1977(a) for 24 V.S.A. § 1979(c). Rule 80.6(i)(1) is amended to substitute the word “transmit” for “mail” in reference for how the judicial bureau clerk should send the notice of appeal to the Criminal Division to reflect the change to electronic case records. Rule 80.6(k) is deleted and reserved. The rule referred to municipal fine contempt proceedings filed by a municipality pursuant to 24 V.S.A. § 1981(d), which was repealed in 2012. 2011, No. 83 (Adj. Sess.), § 1. Rule 80.6(m) is amended in accord with a statutory change substituting “Chief Superior Judge” for “Administrative Judge.” Rule 80.6(n) is amended to add V.R.C.P. 43.1 to the list of civil rules that do not apply in judicial bureau proceedings. Remote hearings are covered by the provisions of Rule 6 of the Vermont Rules of Small Claims Procedure.

Emergency Order Promulgating Amendments to Rules 17(b) and 20(e)(3) of the Rules of Admission to the Bar of the Vermont Supreme Court

This Emergency Order was promulgated on September 13, 2022, effective October 1, 2022.

Rule 17(b) is amended to allow a hearing panel to preside remotely or to allow or require remote participation by others pursuant to Vermont Rule of Civil Procedure 43.1. Following the COVID-19 pandemic, remote hearings were authorized and encouraged under Administrative Order 49, ¶ 15(d). This practice was an effective method for participation and therefore remote participation is incorporated into the rules.

Rule 20(e)(3) is added to incorporate an interim measure taken during the COVID-19 pandemic to permit the oath of admission to be administered remotely in real time. Administrative Order 49, ¶ 15(e) allowed the oath to be administered remotely by video in real time. This procedure has been an efficient way to administer the oath without requiring Applicants to travel to the courthouse.

Comments on these emergency amendments should be sent by November 14, 2022, to Andrew Strauss, Licensing Counsel of the Office of Attorney Licensing, at the following address:

Andrew Strauss, Licensing Counsel

Andrew.Strauss@vtcourts.gov

AO 49 Amendment - Declaration of Judicial Emergency and Changes to Court Procedures

This Order was promulgated on August 9, 2022. Many of the Order’s provisions are deleted, effective September 6, 2022, when permanent rules or policies go into effect.  The Order will otherwise remain in effect until September 30, 2022, to allow permanent rules to go into effect for the few remaining provisions.

The Vermont Supreme Court adopted Administrative Order 49 in March 2020, to amend procedures and adapt processes to protect public health while meeting its critical role in administering justice. Since then, AO 49 has been periodically amended (and considerably shortened) to reflect changing circumstances.  A number of the measures included in AO 49, particularly regarding remote hearings and email filings, have proven beneficial to court users. In conjunction with input from the public and from the legal community, the Court has undertaken a process of adopting policies and promulgating permanent rules, where appropriate, so that the remaining measures in AO 49 could either be phased out or incorporated in permanent rules.

Most of the now-remaining provisions in AO 49 will be deleted, effective September 6, 2022, when permanent rules or policies regarding those measures to be maintained will take effect.  Otherwise, only the provisions regarding remote hearings in the judicial bureau, oral arguments at the Supreme Court, notification requirements in foreclosure and eviction proceedings and Court committees, boards and commissions will remain in effect until September 30, 2022, to allow permanent rules pertaining to those matters to go into effect. Below is an explanation of the status of the AO 49 provisions.

Also, under simultaneously amended Administrative Order 3, the State Court Administrator will have authority to regulate court operations, including health and safety protocols. Administrative Directive TC-1, which will go into effect on September 6, 2022, includes new directives regarding those protocols. The new directives include a change in masking protocols; masks will be recommended but not required in public areas of courthouses. Judges will retain the discretion to require masks in their courtrooms, however, after considering specified health factors.  Administrative Directive TC-1 is described in more detail in Part III below.

The Court Administrator’s Office is very grateful to the bar for its patience, cooperation, and input as the Judiciary has attempted to respond to the pandemic in a way that reasonably balanced safety considerations with our common goals associated with the fair administration of justice.  We would very much appreciate your continued input going forward as the pandemic winds down but the effects on court operations continue.

Paragraph 3, related to jury trials, is deleted effective September 6, 2022. This paragraph currently has four requirements related to jury trials. First, it requires a unit plan to be approved by the Chief Superior Judge and Chief of Trial Court Operations prior to conducting jury trials. Under simultaneously amended Administrative Order 3, the State Court Administrator will have authority to regulate court operations and under simultaneously issued Administrative Directive TC-1, unit plans will remain in effect. Second, ¶ 3(b) currently allows the court to impanel more alternate jurors to accommodate disruptions from COVID-19 infection or exposure. Simultaneously amended Vermont Rule of Criminal Procedure 24(d)(1) will allow the court to impanel as many jurors as reasonably necessary under the circumstances. See the Reporter’s Notes to Criminal Rule 24(d)(1). Third, ¶ 3(c) allows the Chief Superior Judge to transfer a proceeding from its original unit to an alternate unit. This provision will expire without replacement as there are sufficient existing rules and statutes on venue to allow for the necessary flexibility. Finally, ¶ 3(d) allows jurors in remote trials to use devices notwithstanding V.R.C.P. 79.2(d)(5). This allowance was already incorporated into Administrative Order 52 regarding remote civil jury trials.

Most of paragraph 5 regarding remote participation is also deleted effective September 6, 2022. Remote participation in civil, environmental, probate, and most family proceedings will be governed by existing Vermont Rule of Civil Procedure 43.1, subject to any changes that might result from the work of the Special Advisory Committee on Remote Hearings. Remote participation in criminal and delinquency proceedings will be governed by simultaneously amended Administrative Order 38. Paragraph 5(c), which relates to remote proceedings in the judicial bureau, remains in effect to allow for consideration and promulgation of amendments to V.R.S.C.P. 6 and V.R.C.P. 80.6(n), which are currently out for comment.

Paragraph 6, which provides processes related to email filing and service, is deleted effective September 6, 2022, when permanent amendments to Vermont Rule of Civil Procedure 5, Vermont Rule of Appellate Procedure 25, and Vermont Rule of Probate Procedure 5 will go into effect.

Paragraph 7, regarding access to court buildings, is deleted effective September 6, 2022. Simultaneously amended Administrative Order 3 provides the State Court Administrator with authority to regulate court operations, including policies governing entry to and conduct in judiciary buildings related to health and safety.

Paragraph 8, which suspended strict enforcement of the deadlines related to public records requests will expire without replacement on September 6, 2022. Paragraphs 9 and 10 will also expire without replacement.

Paragraph 12, regarding oral argument in the Supreme Court, remains in effect until September 30, 2022, and amended Vermont Rules of Appellate Procedure 9, 33.1, and 34 will go into effect on October 1, 2022.

Paragraph 13, which governed remote mediation, is deleted effective September 6, 2022. Permanent amendments to Vermont Rule for Family Proceedings 18(d)(2) governing mediation went into effect June 20, 2022.

Paragraph 15 governing committees, boards, and commissions established by the Supreme Court remains in effect until permanent amendments can be promulgated.

Paragraph 17, related to notarization and oaths, will expire on September 6, 2022.

Paragraph 20 that required giving priority to juvenile cases and those involving defendants detained pretrial will expire on September 6, 2022. These cases should continue to have priority on the courts’ dockets, but it is not necessary to outline that in an order.

Paragraphs 21 and 22 relate to pleading and notification requirements in foreclosure and eviction proceedings. The Advisory Committee on the Vermont Rules of Civil Procedure has proposed the addition of new Rules 9.2 and 9.3, which are currently out for comment. Once permanent rules are implemented, they can replace the emergency provisions.

The full text of Administrative Order 49 and other updates regarding COVID-19 and court operations are available at www.vermontjudiciary.org/covid19.

Promulgation Order Amending Rules 9, 33.1., 34 of the Vermont Rules of Appellate Procedure

This Order was promulgated on August 9, 2022, effective October 1, 2022.

Rules 33.1, 34, and 9 are amended to update their provisions regarding remote oral argument. Because of the health concerns posed by the COVID-19 pandemic, the Vermont Supreme Court began holding remote oral arguments in April 2020. The arguments were conducted using Webex with Justices, attorneys, and self-represented parties appearing remotely by video or audio. Public access to the remote oral arguments was provided by a live stream. The Court conducted a survey of members of the bar on attorneys’ experiences with remote oral argument. Many respondents reported that remote argument was an efficient use of time and was effective. Some respondents preferred argument in the courtroom and missed the formality of in-person argument. Most respondents indicated they would choose in-person for full-Court arguments and remote for oral argument before a three-Justice panel.  The amendments to the rules reflect this distinction.

Rule 33.1(a)(2) is amended to clarify when a request for oral argument must be made.  The rule previously indicated that a request should be made “reasonably in advance of the date set for consideration.”  Supreme Court practice is for the Supreme Court docket clerk’s office to send a letter to the parties setting a date by which the parties should request argument. This allows the case to be properly scheduled on the calendar.  Rule 33.1(b)(2) is added to provide that oral argument before a three-Justice panel will be conducted remotely absent an order. An in-person oral argument is available under (b)(3) if a party files a motion and demonstrates good cause. The motion must be filed as soon as possible but no later than 7 days prior to the scheduled argument date. An in-person argument is not available when one party is incarcerated and self-represented. Rule 33.1(b)(4) is amended to provide that if there is a technology failure during a remote hearing, the Court may reschedule the argument, consider the case on the briefs, or take other appropriate action.

Rule 34(a) is amended to clarify when a case is ready to be scheduled and when a request for argument must be filed. Under the amendment, a case is ready to be scheduled when the appellee’s brief has been filed or is past due. At that time, the docket clerk’s office will send a letter to the parties setting a date by which to reply if oral argument is requested. The amended rule provides that if no party requests argument that date, the matter will be considered on the briefs unless the Court orders otherwise. Under new Rule 34(c), the default is that oral arguments before the full Court are scheduled for in-person participation. Under (d), the Court may grant a motion for one or more parties to participate remotely for good cause. The motion must be filed as soon as possible but at the latest 7 days before the scheduled argument date. An in-person hearing is not available when one party is incarcerated and self-represented. The revised rule also provides that if there is a technology failure during a remote hearing, the Court may reschedule the argument, consider the case on the briefs, or take other appropriate action. Former 34(c)-(j) are redesignated (e)-(l).

Rule 9, regarding bail appeals, is amended to incorporate provisions on remote oral argument. Rule 9(a)(1) is amended to specify that in appeals from conditions of release, the oral argument will be scheduled for a remote audio or video hearing. Rule 9(b)(1)(D) already provides that in de novo appeals under 13 V.S.A. § 7553a, the hearing may be conducted by remote audio or video. Rule 9(b)(2)(D) is added to provide that oral argument before a three-Justice panel may also be conducted by remote audio or video.

Promulgation Order Amending Rules 5, 6(a)(4) and 79.1 of the Vermont Rules of Probate Procedure

This Order was promulgated on August 9, 2022, effective September 6, 2022.

The amendments to Rules 5, 6, and 79.1 track new provisions of V.R.C.P. 5, 6, and 79.1 regarding email filing and email service.

Emergency Promulgation Order Amending Rule 24(d) of the Vermont Rules of Criminal Procedure

This Order was promulgated on August 9, 2022, effective September 6, 2022.

Rule 24 is amended at the request of the Supreme Court to make permanent certain provisions of Administrative Order 49, ¶ 3(b) that have on an interim basis authorized judges to seat more than four, and as many alternate jurors as reasonably required, to accommodate trial disruptions that might occur due to illness during the period of the Judicial Emergency.  The emergency amendment provides critical clarity and consistency during the full-scale restoration of jury trials in the Criminal Division post-COVID-19.

The present amendments rescind the existing limitations of subdivisions (d) and (f), which restrict the seating of no more than four alternate jurors and permit the court to impanel a reasonable number of alternate jurors.  In determining the number, the court can consider the anticipated length and complexity of the trial, and other factors such as the existing public-health conditions. The amendment, and its authorizations, do not contemplate that all jury panels going forward will be comprised of large numbers of alternate jurors beyond the two to four authorized under the present rule. However, with due regard to case circumstances, the court has discretion to seat additional prospective alternate jurors without specific numeric limitation, to assure that enough jurors remain at the conclusion of trial to enter into deliberations as to the case outcome.

Comments on these emergency amendments should be sent by October 17, 2022, to Hon. John Treadwell, Chair of the Advisory Committee on Rules of Criminal Procedure, at the following address:

Honorable John Treadwell, Chair

Advisory Committee on Rules of Criminal Procedure

John.Treadwell@vtcourts.gov

Promulgation Order Amending Administrative Order No. 38

This Order was promulgated on August 9, 2022, effective September 6, 2022.

Administrative Order 38 is amended to update its provisions regarding the use of remote video and audio technology for criminal and delinquency proceedings. A.O. 38 previously authorized the use of audio and video technology to secure the presence of defendants and certain witnesses that were incarcerated. In response to the COVID-19 pandemic, remote technology was used more broadly to allow the court to preside remotely and for remote participation by parties, witnesses, counsel, and other persons. These proceedings were authorized by Administrative Order 49, ¶ 5(b). As the Judiciary transitions away from emergency measures implemented in response to the pandemic, it continues to use remote technology when appropriate. The amendments authorize a court to preside remotely and to require parties, witnesses, counsel, and other necessary persons to participate remotely when the court is conducting a nonevidentiary proceeding and the defendant’s presence is not required by law. For evidentiary proceedings, the court may preside remotely, and the remote participation of others is authorized only upon agreement of the parties. The rule incorporates the factors in Vermont Rule of Civil Procedure 43.1 for the court to evaluate whether to allow remote witness testimony. In Section II, the technical standards from Administrative Order 47 are incorporated.

The Court is promulgating the amendments without resort to the notice and comment procedures set forth in Administrative Order No. 11 to authorize remote proceedings and participation after the expiration of the authorizing provision in Administrative Order No. 49. The rules are being sent out for comment and the Advisory Committees on the Rules of Criminal Procedure and for Family Proceedings are directed to consider any comments, and report back to the Court on whether to permanently adopt the amendments or make further changes.

Comments on these emergency amendments should be sent by October 17, 2022, to Hon. John Treadwell, Chair of the Advisory Committee on Rules of Criminal Procedure, or to Hon. Michael Kainen, Chair of the Advisory Committee on the Rules for Family Proceedings at the following addresses:

Honorable John Treadwell, Chair

Advisory Committee on Rules of Criminal Procedure

John.Treadwell@vtcourts.gov

Hon. Michael Kainen, Chair

Advisory Committee on the Rules for Family Proceedings

Michael.Kainen@vtcourts.gov

Promulgation Order Amending Administrative Order No. 3

This Order was promulgated on August 9, 2022, effective September 6, 2022.

Pursuant to the Vermont Constitution, the Supreme Court has “administrative control of all the courts of the state.” Vt. Const. ch. II, § 30. The Court in turn may delegate administrative duties to the Court Administrator. 4 V.S.A. § 21 (creating office of Court Administrator and providing that Supreme Court shall prescribe duties). The COVID-19 pandemic brought to light the need for the Judiciary to maintain cogent and data-driven operational policies for activities in Judiciary buildings and to quickly respond to urgent and unexpected health and safety issues. Therefore, Administrative Order 3 is amended to specifically authorize the Court Administrator to promulgate policies governing operations in the courts, including those regarding access and entry to Judiciary buildings to protect the health and safety of both court users and court personnel. In doing so, the Court Administrator must balance public-health considerations with the Judiciary’s responsibilities to serve the public and administer justice. Where the Judiciary shares space with other state agencies or common entry with county government offices, the Court Administrator should work to create mutually agreed policies on entry.

Promulgation Order Amending A.O. 52

This Order was promulgated on July 11, 2022, effectively.

Administrative Order 52, which established a pilot project for remote civil jury trials, is amended in two ways.  First, the pilot is extended to August 31, 2023, to allow more opportunity for the Judiciary and court users to gain experience with this format.  Second, the order is amended to underscore that prospective and seated jurors may use devices for remote trials notwithstanding the prohibition in V.R.C.P. 79.2(d)(5).

Promulgation Order Amending A.O. 23

This Order was promulgated on July 11, 2022, effective September 12, 2022

Administrative Order 23, regarding the Advisory Committee on the Rules of Evidence, is amended to expand the membership of the committee from ten to thirteen. The primary reason for the change is to broaden the membership to ensure a range of experience on the committee, representing the varied practice areas where the evidence rules are used. The amended order requires that the committee include seven attorneys each with a focus and experience in the following practice areas: general civil, criminal prosecution, criminal defense, probate, mental-health, family domestic, and juvenile. The order retains three additional general members that are not tied to a particular practice area.

Promulgation Order Adding A.O. 53

This Order was promulgated on July 11, 2022, effective September 12, 2022.

Administrative Order 53 is added to establish a permanent Advisory Committee on the Vermont Rules for Electronic Filing. The Supreme Court established a special advisory committee to develop rules governing procedures for electronic filing in conjunction with the implementation of the Judiciary’s electronic case management system. The resulting rules continue to require modification based on experience and a permanent committee will assist the Court in keeping the rules updated.

Promulgation Order Amending A.O. 41 § 4 and Adding § 18

This Order was promulgated on July 11, 2022, effective September 12, 2022.

The amendments to Administrative Order 41 add provisions regarding disclosure of insurance coverage for malpractice. A joint committee made of members from the Professional Responsibility Board and the Vermont Bar Association met several times, studied the approaches of several jurisdictions, and heard from a variety of individuals, including attorneys involved in attorney discipline and malpractice cases, and representatives of title and malpractice insurers. The committee proposed that A.O. 41 be amended to require that the annual licensing statement include a section requiring lawyers to disclose their insurance status. New § 4(a)(8) implements that requirement. New § 18 provides details of the required disclosure, exempting government attorneys, in-house counsel, active attorneys not representing clients, and attorneys not on active status. Section 18(d) provides that the information regarding insurance coverage is publicly available, but delays public availability until after a full license renewal period has passed.

Promulgation Order Amending V.R.C.P. 26(e)

This Order was promulgated on July 11, 2022, effective September 12, 2022.

The amendment to Rule 26(e) conforms the Vermont rule to the federal rule in two respects. The first relates to supplementation of expert disclosures and expert depositions. The amended rule requires supplementation of disclosure of information provided about expert witnesses or by expert witnesses when deposed. The second change is a clarification. As originally drafted, the federal and state rules on supplementation referred to supplementing a response that was correct when initially made. The Vermont rule now follows the federal rule by deleting “thereafter acquired” from the first sentence of the rule. This change eliminates any interpretation of the rule that the duty to correct or supplement does not arise if information available to the disclosing party at the time of the initial disclosure rendered the initial disclosure incomplete or inaccurate.

Promulgation Order Amending A.O. 9, Rules 7, 8, 20 and 26

This Order was promulgated on July 11, 2022, effective September 12, 2022.

The amendment to Rule 7(B) rescinds the existing limit on the number of terms that an Assistance Panel member may serve. Given the nondisciplinary format and goals of the Bar Assistance Program, the value of experienced members, and the relatively small pool of potential members, there is no reason to limit terms.

The amendment to Rule 7(C) rescinds the requirement that at least one member of an Assistance Panel be a current member of the Board. With only seven volunteer members, this requirement puts an unreasonable expectation on Board members’ time. Board members remain eligible to volunteer to serve as members of assistance panels.

The amendments to Rule 8 clarify the scope of the confidentiality of all information, communications, and records received and generated by the Bar Assistance Program. New paragraph (C) is added to clarify that all information, communications, and records related to matters considered by Assistance Panels are confidential. New paragraph (D) is added to clarify the situations in which otherwise confidential information, communications, or records must be disclosed. Old paragraph (C) is relabeled a paragraph (E) and is amended for clarity and to strengthen the confidentiality of information, communications, and records. Old paragraph (D) is relabeled as paragraph (F) and is amended to clarify the situations in which otherwise confidential information, communications, or records may be disclosed. Paragraph (F) loosely tracks V.R.Pr.C. 1.6(c) and is intended to permit Bar Counsel or the Bar Assistance Program to disclose information in situations in which a lawyer would be permitted to do so in a lawyer-client relationship. Old paragraph (E) is relabeled as paragraph (G) and is amended to reflect that, on occasion, the Professional Responsibility Program might contract with an attorney to serve when Bar Counsel has a conflict of interest or is otherwise unable to serve. Old paragraph (F) is relabeled as paragraph (H) and is amended make clear that the confidentiality provisions of Rules 5, 6, and 7 encompass all who might work or volunteer in or for the Bar Assistance Program.

The amendment to Rule 20 reflects the 2021 amendments that created the role of Screening Counsel.

The amendment to Rule 26(D) clarifies that lawyers who are suspended for 6 months or longer must petition for reinstatement to the active practice of law. By contrast, lawyers who are suspended for less than 6 months may resume practicing upon the expiration of the suspension.

Promulgation Order Amending Administrative Order No. 50

This Order was promulgated on July 5, 2022, effective July 5, 2022.

Administrative Order No. 50, originally promulgated in August 2020, created a pilot project to serve defendants more efficiently in cases where the Office of Child Support (OCS) is providing services under federal law. The pilot project began in Windham and Windsor Units, was extended to Caledonia and Orange Units in August 2021, extended to the Orleans Unit in March 2022 and is now extended to the Franklin, Grand Isle, Lamoille, and Essex Units.

Promulgation Order Amending Rule 6(b)(14) of the Vermont Rules for Public Access to Court Records

This Order was promulgated on June 6, 2022, effective August 8, 2022.

Rule 6(b)(14) contains a list of exemptions of personally identifying information. Rule 6(b)(14)(v) previously exempted the name “of a child alleged to be a victim” in a criminal case. To alleviate any confusion regarding whether the exemption referred to the alleged victim’s age at the time of the offense or currently, the amendment clarifies that the exemption applies to an alleged victim who was a minor at the time of the offense. The amendment also substitutes the term “minor” for “child” because minor is a legal term already defined by statute. See 1 V.S.A. § 173.

Promulgation Order Amending Rule 11(c) of the 2020 Vermont Rules for Electronic Filing

This Order was promulgated on May 9, 2022, effective September 6, 2022.

The amendment to Rule 11(c) conforms the rule to simultaneous amendments to V.R.C.P. 5(b)(2)(D), which requires efilers to serve discovery using the electronic filing system, unless the parties agree on an alternative method of service.

Promulgation Order Making V.R.C.P. 80.11 Permanent

This Order was promulgated on May 9, 2022, effective July 11, 2022.

Rule 80.11, which provides procedures for expedited actions, was originally adopted by the Supreme Court’s order of June 15, effective August 15, 2016, with a sunset date of August 16, 2019.  The rule is now made permanent.

By order of April 30, 2018, the Court ordered the rule, as amended, to be continued and directed the Advisory Committee on the Rules of Civil Procedure to continue to review its operation and to advise the Court whether it should be further revised or made permanent. The Committee discussed the rule at several recent meetings. A Vermont Bar Association membership survey conducted on behalf of the Committee, indicated that, although the expedited action procedure provided by Rule 80.11 is not used extensively, it is generally viewed as useful and effective, with no significant suggestions for revision. After review and discussion of the survey results, the Committee voted unanimously to recommend to the Court that V.R.C.P. 80.11 as presently constituted be promulgated as a permanent rule effective not later than August 31, 2022.

Promulgation Order Amending V.R.C.P. 5, 6(a), 29, 79.1

This Order was promulgated on May 9, 2022, effective September 6, 2022.

Rule 5 is amended at the request of the Supreme Court to make permanent certain provisions of Administrative Order 49 that permit filing and serving documents by email in certain circumstances.  In several places “paper” is changed to “document,” a word defined in the

Rule 5(a) is carried forward and sets forth the service requirement for all documents subsequent to the summons and complaint or for which the rules may provide another mode of service. New Rule 5(b)(1) defines the five methods of service—using the efiling system, email, delivery, mailing, and leaving with the clerk. New Rule 5(b)(2) sets forth five required or permitted methods of service. Subparagraph (2)(A) makes clear that service between electronic filers must be made through the electronic filing system, or by another method agreed between the parties, as provided in Rule 11(d) of the 2020 Vermont Rules for Electronic Filing.

New Rule 5(b)(2)(B) delineates the methods of service for nonelectronic filers, which includes self-represented parties or other participants that have not elected or are not required to electronically filed. Those individuals may serve or be served by delivery, mailing, or commercial carrier. Email service may be made in three circumstances. First, email service can be used if a self-represented party files a notice of appearance and provides both an email address and consent to be served at the email in accordance with simultaneously amended Rule 79.1(d). Second, the parties may agree to service by email in a signed writing filed with the court. Last, if a non-efiler does not have a valid physical or postal address, service can be made by email even if consent was not provided in the notice of appearance. The rule formerly allowed for service by leaving with the clerk where no address was known.  Leaving with the clerk is now authorized by Rule 5(b)(2)(B)(iii) if no valid physical, postal, or email address is known.  New Rule 5(b)(2)(D) pertains to service of discovery documents that are not filed with the court. Under this provision efilers must serve discovery documents by using the electronic filing system.

Revised Rule 5(e) has minor wording changes and is amended to allow unregistered self-represented parties and other participants to file by delivery, mail, commercial carrier, or email.  There are standards for email filing in new Rule 5(e)(4).  Rule 5(e)(5) specifies the filing date for documents depending on how they are filed.

New Rule 5(i) incorporates several definitions pertaining to filing and service from the 2020 Vermont Rules for Electronic Filing.

Rule 6(a)(4) is amended in conjunction with Rule 5(e)(5)(B) to specify that the last day for filing by email ends at midnight in the court’s time zone.

Rule 29 is amended to conform to concurrent changes in Rule 5 regarding service of discovery materials. Under new Rule 5(b)(2)(D), discovery between electronic filers must be made by using the electronic filing system unless the parties consent to service by another method such as through email or file sharing. Discovery on or by nonelectronic filers is made by mailing or delivery. Again, email or another method can be used if the parties agree.

Rule 79.1 is amended to clarify what is required from a self-represented party. Rule 79.1(d) requires self-represented parties to file and sign a Notice of Appearance for self-represented party, which is available on the judiciary website https://www.vermontjudiciary.org/sites/default/files/documents/100-00265.pdf  The form contains contact information to facilitate both service by other parties and notice by the court. The form also allows self-represented parties to consent to receive service by email. Even where a self-represented party does not consent to email service, the party may be served using an email provided on a pleading if there is no known physical or postal address. This conforms to a contemporaneous amendment to Rule 5(b)(2)(B)(ii).  Rule 79.1(e) and (h)(4) are amended to replace the word “paper” with “document.” Rule 5(i)(1) incorporates the broad definition of “document” from the 2020 Vermont Rules for Electronic Filing for purposes of filing and service. Rule 79.1(i), which required attorneys to provide an eCabinet registration number, is deleted as obsolete.

Promulgation Order Amending V.R.A.P. 25

This Order was promulgated on May 9, 2022, effective September 6, 2022.

The amendment to V.R.A.P. 25 is made in conjunction with the amendments to V.R.C.P. 5 regarding email filing and service. V.R.A.P. 25(a)(1) and (2), regarding filing of documents, is deleted. Amended 25(a)(1) instead states that filing must be made as provided in V.R.C.P. 5(e) and the 2020 Vermont Rules for Electronic Filing. Incorporating the filing requirements of V.R.C.P. 5(e) will provide consistency across different dockets and predictability. The service requirements of V.R.C.P. 5 are already incorporated into the appellate rule. 

The amendment also deletes V.R.A.P. 25(a)(2)(B), which previously provided: “A brief or printed case is timely filed if mailed or delivered to the carrier on or before the last day for filing.”  Given the implementation of electronic filing in the Supreme Court and the concurrent implementation of filing by email, the provision is outdated. To the extent the purpose of the exception for briefs is to give parties the maximum time to complete their briefs, simultaneous amendments expand the deadlines for these filings from 30 to 40 days for an appellant’s principal brief, from 21 to 30 days for an appellee’s principal brief, and from 7 days to 14 days for a reply brief.

AO 49 Amendment - Declaration of Judicial Emergency and Changes to Court Procedures 5-09-22

This Order was promulgated on May 9, 2022, effective immediately.

Paragraph 2 of Administrative Order 49 is amended to extend its effective date to August 31, 2022. The Judiciary continues to respond to the COVID-19 pandemic by amending provisions of the order as necessary. Paragraphs 5(d) and 7(b), concerning limited-entry courthouses, are amended to authorize the Court Administrator in consultation with the Chief Superior Judge to limit in-person hearings and in-person access to buildings with limited air-flow systems. The affected locations and any associated restrictions on in-person hearings or in-person access will be provided on the Vermont Judiciary website. Paragraph 15(c), concerning internal committees, boards, and commissions is amended to remove the prior prohibition on in-person meetings. Committees are still authorized to meet remotely. Paragraph 16, which concerned venue, is deleted. The Chief Superior Judge and superior judges have sufficient authority under existing statutes and rules to respond to any venue-related issues stemming from the pandemic. Finally, ¶ 24 is deleted effective June 20, 2022. This paragraph amended Vermont Rule of Civil Procedure 68 to extend use of the offer-of-judgment rule to plaintiffs. The Court has since promulgated a permanent amendment to Rule 68, which will become effective June 20, 2022.

The full text of Administrative Order 49 and other updates regarding COVID-19 and court operations are available at www.vermontjudiciary.org/covid19.

Promulgation Order Amending V.R.Cr.P. 45 (a)(4)(A) and (e)

This Order was promulgated on May 9, 2022, effective September 6, 2022.

The amendments to Rule 45 are part of a larger project to update rules regarding filing and service across all divisions. The amendment to Rule 45(a)(4)(A) clarifies that when email filing is permitted email filings are timely when made at any time prior to midnight on the last day specified for required action. This conforms with a simultaneous amendment to V.R.C.P. 6(a)(4).

The amendment also deletes V.R.Cr.P. 45(e), which previously allowed three additional days for filing after certain kinds of service.  A simultaneous amendment deletes the provision from V.R.C.P. 6(e) and V.R.A.P. 26(c).

Order Amending Rule 6(e) of the Vermont Rules of Civil Procedure and Rule 26 and 31(a) of the Vermont Rules of Appellate Procedure

This Order was promulgated on May 9, 2022, effective September 6, 2022.

V.R.C.P. 6(e) and V.R.A.P. 26(c) are simultaneously deleted. As most recently amended in 2018, Rule 6(e) provided:

(e) Additional Time After Certain Kinds of Service. When a party may or must act within a specified time after being served and service is made under Rule 5(b)(2) (mailing), (3) (leaving with the clerk), or (4) (sending by electronic means), 3 days are added after the period would otherwise expire under Rule 6(a).

Deleting these provisions is overdue, given the general simplification of counting time that occurred when the “day is a day” method of counting was adopted in 2018 and the widespread use of service by electronic means, either through OFS or by email.

V.R.A.P. 26(d)(1) is amended to extend the maximum time limits to which filing times for briefs may be extended by stipulation. Under subparagraph (1)(A), the extension for the appellant’s principal brief is increased from 30 to 40 days. The extension for appellee’s principal brief is increased from 21 to 30 days, and that for reply briefs is increased from 14 to 21 days. These time limits are identical to those in the Federal Rules of Appellate Procedure, which were put in place when the federal three-day rule was eliminated for electronic filing. Now that electronic filing has been adopted for appeals to the Vermont Supreme Court, and the three-day rule is being eliminated by simultaneous deletion of V.R.C.P. 6(e) and V.R.A.P. 26(c), the longer time periods are appropriate for Vermont.

Rule 31(a) is amended to extend the serving and filing times for principal and reply briefs. Under paragraph (1), the time for the appellant’s principal brief is increased from 30 to 40 days. The time for appellee’s principal brief is increased by paragraph (2) from 21 to 30 days, and that for reply briefs is increased by paragraph (3) from 14 to 21 days.

Order Abrogating Rule 18(d) of the Vermont Rules of Probate Procedure

This Order was promulgated on May 9, 2022, effective July 11, 2022.

Rule 18(d) previously indicated that V.R.F.P. 6 and 6.1 governed the representation of attorneys and guardians ad litem in proceedings under 14 V.S.A. Chapter 111.  Because representation by guardians ad litem and attorneys are now covered by V.R.P.P. 80.9 and 80.10, rather than by V.R.F.P. 6 and 6.1, Rule 18(d) is abrogated.

Promulgation Order Adding V.R.Cr.P. 11(a)(4)

This Order was promulgated on April 18, 2022, effective June 20, 2022.

The addition of Rule 11(a)(4) provides an additional procedure whereby a defendant may preserve a post-conviction relief (PCR) 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 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.

Promulgation Order Amending V.R.S.C.P. 7 and 8

This Order was promulgated on April 18, 2022, effective June 20, 2022.

V.R.S.C.P. 7 is amended to address issues that have been plaguing the small claims docket. The amendments require personal service of judgments before financial disclosure hearings can be held and extend the time period between new financial disclosure hearings. The amendments also include some simple language changes to make the rules clearer. Simultaneously adopted amendments of V.R.S.C.P. 8 modernize and simplify the contempt process for failure to appear at a financial-disclosure hearing.  The amendments clarify the basis for a contempt finding and narrow the remedies available for contempt. They also simplify the process for creditors seeking a contempt order.

Promulgation Order Amending V.R.C.P. 68

This Order was promulgated on April 18, 2022, effective June 20, 2022.

Rule 68 is amended to allow plaintiffs to make offers of judgment where the rule previously only allowed such offers by defendants. The change was initially adopted as part of Administrative Order 49 to make the practice more widely available at a time when in-person civil jury trials were largely on hold pursuant to Administrative Order No. 49, ¶ 24. The present amendment makes the change permanent

Promulgation Order Amending V.R.C.P. 50(b)

This Order was promulgated on April 18, 2022, effective June 20, 2022.

V.R.C.P. 50(b) is amended in response to the Vermont Supreme Court’s request in Blondin v. Milton Town School District, 2021 VT 2, ¶ 26 n. 10, __ Vt. __, 251 A.3d 959, that the Civil Rules Committee consider whether that rule “should be amended to be consistent with the federal rule and potentially to allow consideration of pure questions of law on appeal absent renewal following judgment.”  The amendment to V.R.C.P. 50(b) limits the requirement to renew a motion for judgment as a matter of law when it is a sufficiency-of-the-evidence claim.

Promulgation Order Amending Rule 18(d)(2) of the Vermont Rules for Family Proceedings

This Order was promulgated on April 18, 2022, effective June 20, 2022.

The amendment to Rule 18(d)(2) clarifies that mediation can take place either in person or using remote technology.

A.O. 49 was initially issued March 16, 2020, in response to the state of emergency resulting from the pandemic. Paragraph 13 of A.O. 49 authorized remote participation in mediation by video or telephone without a stipulation or court order. Further, in anticipation that at some point A.O. 49 would no longer be necessary, the Supreme Court requested that the Advisory Committee on Rules for Family Proceedings consider whether there should be a permanent change to Rule 18 related to remote participation. After considering responses from attorneys who practice family law to a Vermont Bar Association survey and responses from family mediators, the Committee concluded that both in person and remote participation in mediation should be permissible in family proceedings subject to V.R.F.P. 18 at the discretion of the mediator or by order of the court.

Promulgation Order Amending Rules 2(a)(2) and (3), 6(a) and (c)(2)(3), 6.1(a) and (c)(1), and 8(h) of the Vermont Rules for Family Proceedings

This Order was promulgated on April 18, 2022, effective June 20, 2022.

Rule 2(a)(2) is amended to eliminate the reference to V.R.C.P. 78(a), (Motion Days) which was abrogated by order of June 7, effective August 9, 2021. Rule 2(a)(3) is amended to replace the reference to V.R.C.P. 78(b) with a reference to V.R.C.P. 7(b)(4) (Memorandum in Opposition), added by that order and embodying the provisions of former V.R.C.P. 78(b)(1) in revised form.

Provisions of Rules 6 and 6.1 are deleted because the probate rules now contain provisions on the appointment of guardians and attorneys in probate proceedings. See V.R.P.P. 80.9 (Representation by Guardians ad Litem of Minors) and V.R.P.P. 80.10 (Representation by Attorneys and Guardians ad Litem of Adults in Specified Proceedings). In addition, the reference to the title of 18 V.S.A. Chapter 206 is amended to be consistent with legislation enacted in 2014.  2013, No. 96 (Adj. Sess.), § 114.

Rule 6.1(c)(1) is amended to replace the reference to V.R.C.P. 78(b) (Disposition of Written Motions With or Without Hearing), which was abrogated by order of June 7, effective August 9, 2021, with a reference to V.R.C.P. 7(b)(6) (Evidentiary Hearings) added by that order and embodying its relevant provisions in revised form.

Rule 8(h) is amended to eliminate the reference to V.R.C.P. 78 (Motion Day), which was abrogated by order of June 7, effective August 9, 2021. All relevant provisions of the former V.R.C.P. 78 are now incorporated in V.R.C.P. 7.