Vt. Memo to the Bar, Mar. 8, 2018

SUPREME CO URT O F VERMO NT

O FFICE O F THE CO URT ADMINISTRATO R

PATRICIA GAB EL, ESQ. Mailing Address

State Court Administrator Office of the Court Administrator

patricia.gabel@vermont.gov 109 State Street

Montpelier, VT 05609-0701

Telephone (802) 828-3278

FAX: 802 828-3457

www.vermontjudiciary.org

TO: Members of the Vermont Bar

FROM: Patricia Gabel, State Court Administrator

RE: Proposed Rule Amendments and Miscellaneous Information

DATE: March 9, 2018

For your information, please find the following information:

• Proposed Order Amending Rules 3 and 5(e) of the Vermont Rules of Civil Procedure and

Rule 25(a)(2)(C) of the Vermont Rules of Appellate Procedure

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

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

• Proposed Order Amending Rule 23(d) of the Vermont Rules of Criminal Procedure

• Updated Court Forms

• Obligations Under A.O. 41

• eCabinet Registration

I. PROPOSED RULE AMENDMENTS

(NOTE: THE FOLLOWING AMENDMENTS HAVE BEEN PROPOSED BY THE

COMMITTEES OR BOARDS AND HAVE NOT BEEN REVIEWED BY THE SUPREME

COURT.)

a. Proposed Order Amending Rules 3 and 5(e) of the Vermont Rules of Civil Procedure and

Rule 25(a)(2)(C) of the Vermont Rules of Appellate Procedure

The proposed amendment redesignates the present Rule 3 as Rule 3(a) and adds Rule 3(b) to

provide a “prisoner mailbox” procedure for the filing of a complaint in a civil action by an inmate

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

effective March 13, 2017.

Proposed simultaneous amendments adding V.R.C.P. 5(e)(4) and V.R.A.P. 25(a)(2)(C) establish

an identical procedure for inmate filing of documents after the complaint that are required to be filed

by V.R.C.P. 5 and papers after the notice of appeal required to be filed by V.R.A.P. 25.

Comments on this proposed amendment should be sent by May 9, 2018, to Allan Keyes,

Chair of the Civil Rules Committee, at the following address:

Allan Keyes, Esq., Chair

Civil Rules Committee

Ryan Smith & Carbine, Ltd.

P.O. Box 310

Rutland, VT 05702 0310

ark@rsclaw.com

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

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

substantively amends the rule in three instances. A provision is added for notice to the defendant

of the maximum penalty that may be imposed upon conviction. To facilitate appearance of

counsel and assignment of counsel to represent the indigent defendant, a requirement is added to

provide notice of the right to be represented by counsel and to make application for assignment

of counsel. Specific provision is also made for the mode of appointment of a prosecuting

attorney.

Comments on this proposed amendment should be sent by May 9, 2018, to the Honorable

Thomas A. Zonay, Chair of the Advisory Committee on Rules of Criminal Procedure, at the

following address:

Honorable Thomas A. Zonay, Chair

Advisory Committee on Rules of Criminal Procedure

Vermont Superior Court

Rutland Criminal Family Unit

9 Merchants Row

Rutland, VT 05701

Thomas.zonay@vermont.gov

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

The proposed amendment Rule 17(a) expands the categories of persons who are authorized

to issue subpoenas in criminal proceedings, either for attendance of witnesses or for production

of documentary evidence and objects. This subdivision was amended effective February 20,

2017 to clarify that a subpoena is provided by the clerk, but actually issued by a judicial officer,

subject to certain notice of rights on the part of persons subject to subpoena to object thereto, and

the procedures for doing so. The proposed amendment provides that subpoenas in criminal cases

may now be issued either by a judicial officer, a clerk, or a member of the Vermont bar. The

amendment is intended to facilitate issuance of subpoenas in criminal cases, consistent with a

defendant’s Compulsory Process guarantees, subject to the existing provisions of the rule

establishing protections for persons and records that are the subject of subpoenas. The

amendment is also intended to establish greater conformity with V.R.C.P. 45(a)(3), which has

long provided that subpoenas in civil proceedings may be issued by either a judicial officer, a

clerk, or an attorney.

Comments on this proposed amendment should be sent by May 9, 2018, to the Honorable

Thomas A. Zonay, Chair of the Advisory Committee on Rules of Criminal Procedure, at the

following address:

Honorable Thomas A. Zonay, Chair

Advisory Committee on Rules of Criminal Procedure

Vermont Superior Court

Rutland Criminal Family Unit

9 Merchants Row

Rutland, VT 05701

Thomas.zonay@vermont.gov

d. Proposed Order Amending Rule 23(d) of the Vermont Rules of Criminal Procedure

The proposed amendment to Rule 23(d) is in response to the Supreme Court’s decision in

State v. Breed, where the Court outlined the better practice when there may be a delay after the

jury has been chosen but before trial.

Comments on this proposed amendment should be sent by May 9, 2018, to the Honorable

Thomas A. Zonay, Chair of the Advisory Committee on Rules of Criminal Procedure, at the

following address:

Honorable Thomas A. Zonay, Chair

Advisory Committee on Rules of Criminal Procedure

Vermont Superior Court

Rutland Criminal Family Unit

9 Merchants Row

Rutland, VT 05701

Thomas.zonay@vermont.gov

II. MISCELLANEOUS

a. Court Forms

Court forms are constantly being updated. Please refer to the judiciary website for the most

up-to-date forms. https://www.vermontjudiciary.org/court-forms

b. Obligation under A.O. 41

Attorneys are reminded that an “attorney must report to the State Court Administrator within

thirty days any change of the office mailing or electronic mail address” and that “[n]otice sent to a

reported address is sufficient even if not received by the attorney because of failure to report the

proper address or failure of delivery not caused by the court.” A.O. 41, § 4(c); see A.O. 44, § 1.

Please email those changes to JUD.AttyLicensing@vermont.gov. Your cooperation is very

much appreciated.

To ensure you continue to receive these emails, please add JUD.AttyLicensing@vermont.gov

to your Safe Senders list.

c. eCabinet Registration

Administrative Order No. 44 requires attorneys in active status to register up to three email

addresses in eCabinet for purposes of receiving notices of hearing and other documents. You

may include staff email addresses in the three email addresses that you specify. eCabinet

registration is required whether you practice in court or not.

If you have already registered in eCabinet, the email address(es) you provided as part of that

process will be used.

If you have not already registered in eCabinet, please go to

https://efiling.eservices.crt.state.vt.us/, click Register Now, and follow the simple prompts.

Attorneys will need their attorney license numbers to register. Helpful information about the

Attorney Email Registration process is also available on the Electronic Filing page of the

judiciary website at https://www.vermontjudiciary.org/about-vermont-judiciary/electronic-

access/electronic-filing. Please contact jud.helpdesk@vermont.gov or call the Helpdesk at 802-

828-4357 with any questions in the meantime.

You are also reminded that you are required to update the email address(es) and other contact

information you have registered as soon as there are any changes, including changes to staff

email addresses you may have included with your registration. To revise the information, please

go to https://efiling.eservices.crt.state.vt.us/, log into eCabinet, click “Account,” choose “My

Profile,” and make the necessary changes to your contact information.

Notification to JUD.AttyLicensing@vermont.gov or in eCabinet of a change to your contact

information does not automatically notify the other. It is your responsibility to notify both. If you

are a member of the Vermont Bar Association, you will also need to separately notify the VBA.