Vt. Memo to the Bar, Sept. 6, 2018

SUPREME COURT OF VERMONT

OFFICE OF THE COURT ADMINISTRATOR

PATRICIA GABEL, 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, Esq., State Court Administrator

RE: Emergency Promulgated, Promulgated, Proposed Rule Amendments, and

Miscellaneous Information

DATE: September 6, 2018

For your information, please find the following information:

• Emergency Order Promulgating Amendment to Rule 3(k) of the Vermont Rules of Criminal Procedure

• Order Promulgating Amendments to Rule 79.1(e) of the Vermont Rules of Civil Procedure, Rule 15(e) of the

Vermont Rules for Family Proceedings, Rule 79.1(d) of the Vermont Rules of Probate Procedure, and Rule

45.1(d) of the Vermont Rules of Appellate Procedure

• Proposed Order Adding Rule 902(13) to the Vermont Rules of Evidence

• Proposed Order Abrogating and Replacing Rule 79.2 of the Vermont Rules of Civil Procedure, Rule 79.2 of the

Vermont Rules of Probate Procedure, and Rule 53 of the Vermont Rules of Criminal Procedure

• Proposed Order Abrogating and Replacing Rule 35 of the Vermont Rules of Appellate Procedure

• Proposed Order Promulgating Administrative Order No. 46

• Updated Court Forms

• Obligations Under A.O. 41

• eCabinet Registration

I. PROMULGATED RULE AMENDMENTS

a. Emergency Order Promulgating Amendment to Rule 3(k) of the Vermont Rules of Criminal

This Emergency Order was promulgated September 5, 2018; effective immediately.

Rule 3(k) was amended per 2017, No. 164, § 2 (Adj. Sess.) (effective July 1, 2018). The revision

added provision for a prosecuting attorney, or a law enforcement officer, to contact a judicial officer

for determination of temporary release following arrest; formerly, the rule had provided that a law

enforcement officer was to make that contact. In addition, the enactment added that either the law

enforcement officer or prosecuting attorney “shall provide the judicial officer with the information

and affidavit or sworn statement required by Rule 4(a) of these rules.” The amended rule has

spawned differences in interpretation over the meaning of “information” in the list of items required

to be presented to the judicial officer for purposes of determining of temporary release.

The present emergency amendment provides clarification consistent with the purposes and

intent of 2017, No. 164 (Adj. Sess.). The present amendment deletes the reference in the

legislatively enacted amendment to “the information” (i.e., a charging document). The

amendment maintains the mandate of the legislative enactment that an affidavit or sworn

statement, consistent with Rule 4(a), be prepared and provided to the judicial officer, to enable

an informed determination as to temporary release pending Rule 5 Initial Appearance. In

addition, the amendment requires that the affidavit or sworn statement must include reference to

the prosecuting attorney’s assessment of the offense(s) for which the defendant will be charged

for purposes of determination of temporary release.

Comments on this emergency amendment should be sent by November 5, 2018, to

Honorable Thomas Zonay, Chair of the Committee on the 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

The Advisory Committee will review any comments received and advise the Court whether

the amendments should be revised or made permanent.

b. Order Promulgating Amendments to Rule 79.1(e) of the Vermont Rules of Civil

Procedure, Rule 15(e) of the Vermont Rules for Family Proceedings, Rule 79.1(d) of the

Vermont Rules of Probate Procedure, and Rule 45.1(d) of the Vermont Rules of Appellate

This Order was promulgated September 5, 2018; effective November 5, 2018.

The amendments conform the rules with general revisions of Administrative Order No. 41,

governing Licensing of Attorneys, effective May 15, 2017. In the revision and restyling of A.O.

41, former § 13, Admission Pro Hac Vice, is now designated as § 16 of A.O. 41.

II. PROPOSED RULE AMENDMENTS

(NOTE: THE FOLLOWING AMENDMENTS HAVE BEEN PROPOSED AND HAVE NOT

BEEN REVIEWED BY THE SUPREME COURT.)

a. Proposed Order Adding Rule 902(13) to the Vermont Rules of Evidence

The proposed addition of Rule 902(13) reflects the enactment of 12 V.S.A. § 1913, a statute

pertaining to the admissibility of evidence contained in blockchain records. Proposed Rule

902(13) mirrors the language and conditions set forth in § 1913(b)(1), a section declaring that

blockchain records are self-authenticating.

Comments on this proposed amendment should be sent by November 5, 2018, to Elizabeth

Miller, Chair of the Committee on the Rules of Evidence, at the following address:

Elizabeth Miller, Esq.

Dunkiel Saunders

91 College Street

Burlington, VT 05401

emiller@dunkielsaunders.com

b. Proposed Order Abrogating and Replacing Rule 79.2 of the Vermont Rules of Civil

Procedure, Rule 79.2 of the Vermont Rules of Probate Procedure, and Rule 53 of the

Vermont Rules of Criminal Procedure

The proposed rule was developed by a special committee composed of judges, court

administrators, members of the Supreme Court’s procedural rules committees, and

representatives of the media. The special committee’s draft was previously sent out for public

comment, discussed by each of the procedural rules committees, and considered at a public

hearing before a final version was recommended to the Supreme Court for promulgation. The

Supreme Court made further alterations and is sending the proposal out for comment a second

time.

The proposed rule governs both possession and use of recording and transmitting devices. It

defines terms that are essential to the operation of the rule. Proposed Rule 79.2(c) broadly

provides that a device may be used nondisruptively anywhere in a courthouse.

Proposed Rule 79.2(d) contains limits on use applicable to anyone possessing or using a

device in a courtroom. The proposed rule, supplemented by Administrative Order No. 46, lays

out a scheme for registration of media and their representatives entitling them to use devices to

record and transmit courtroom proceedings. The proposed rule provides that participants may use

devices in the courtroom with some restrictions. The proposed rule allows nonparticipants to

possess devices in the courtroom, but to use them only in limited circumstances. Devices must be

turned off or in silent mode except during nonevidentiary hearings when the jury or jury pool is

not present. The proposed rule contains provisions applicable to jurors.

Proposed Rule 79.2(e) sets limits designed both to protect the decorum and the necessary

confidentiality of certain proceedings. The proposed rule allows limits on use, but contains a

presumption in favor of media access.

Proposed Rule 79.2(f) states that the court may waive any of the limitations imposed by the

rule on request for good cause and subject to any necessary or appropriate restrictions.

The proposal also abrogates current rules V.R.Cr.P. 53 and V.R.P.P. 79.2 and replaces those

rules with a statement making the civil rule applicable to proceedings in the criminal and probate

divisions. No change is proposed for V.R.F.P. 4.0(a)(2) or V.R.E.C.P. 3 so V.R.C.P. 79.2 will

continue to apply to public proceedings in the family and environmental divisions.

The proposal abrogates current Administrative Directive No. 28, which concerns use of

electronic devices in a courtroom.

Comments on this proposed amendment should be sent by November 5, 2018, to Emily

Wetherell, Deputy Clerk, at the Vermont Supreme Court, at the following address:

Emily Wetherell, Deputy Clerk

Vermont Supreme Court

109 State Street

Montpelier, VT 05609-0801

emily.wetherell@vermont.gov

c. Proposed Order Abrogating and Replacing Rule 35 of the Vermont Rules of Appellate

The proposal abrogates and replaces Rule 35 consistent with the simultaneous amendments

to V.R.C.P. 79.2. Proposed Rule 35(b) provides definitions for terms used throughout the rule.

Under proposed Rule 35(c) any person is authorized to possess any device in a courthouse and

use it in a nondisruptive manner. Proposed Rule 35(d) addresses use inside a courtroom. The rule

allows registered media, participants, and nonparticipants to possess and use devices in the

courtroom, subject to general prohibitions and limits on number and position of devices for video

recording and transmission. This is broader than the use allowed in the superior court because

there are no witnesses or juries present at the Supreme Court. Proposed Rule 35(e) sets some

limits on recording and transmission to ensure confidentiality of communications between

members of the Court, between co-counsel, and between attorney and client. Under the proposal,

the Court is authorized to prohibit, terminate, limit, or postpone recording or transmitting of a

proceeding based on several factors.

Comments on this proposed amendment should be sent by November 5, 2018, to Emily

Wetherell, Deputy Clerk, at the Vermont Supreme Court, at the following address:

Emily Wetherell, Deputy Clerk

Vermont Supreme Court

109 State Street

Montpelier, VT 05609-0801

emily.wetherell@vermont.gov

d. Proposed Order Promulgating Administrative Order No. 46

The proposed Administrative Order 46 provides for the administrative implementation and

performance standards for V.R.A.P. 35, V.R.C.P. 79.2, V.R.Cr.P. 53, and V.R.P.P. 79.2

governing the use of devices in the court. The proposed administrative order contains processes

for the media to obtain a permanent registration or a one-time registration and to add an

authorized individual to an existing registration. The proposed order sets limits on equipment

and personnel.

Comments on this proposed amendment should be sent by November 5, 2018, to Emily

Wetherell, Deputy Clerk, at the Vermont Supreme Court, at the following address:

Emily Wetherell, Deputy Clerk

Vermont Supreme Court

109 State Street

Montpelier, VT 05609-0801

emily.wetherell@vermont.gov

III. 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.