Vt. Memo to the Bar, Nov. 6, 2019

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: Promulgated, Proposed Rules and Miscellaneous Information

DATE: November 6, 2019

For your information, please find the following information:

• Order Promulgating Amendments to Rules 55 and 80.1 of the Vermont Rules of Civil Procedure

• Proposed Order Amending Rule 32(c)(4) of the Vermont Rules of Criminal Procedure

• Proposed Order Amending Rules 3, 7, 9, 10 of the Vermont Rules of Small Claims Procedure

• Proposed Order Amending Rule 6(15) and (26) of the Rules of the Supreme Court for Disciplinary Control of

Judges

• Proposed Order Amending Rule 40(e)(4) of the Vermont Rules of Civil Procedure, Rule 27.1(b)(4) of the

Vermont Rules of Appellate Procedure, Rule 50(d)(4) of the Vermont Rules of Criminal Procedure, and Rule

40(d)(4) of the Vermont Rules of Probate Procedure

• Updated Court Forms

• Obligations Under A.O. 41

• eCabinet Registration

I. PROMULGATED RULE AMENDMENTS

Order Promulgating Amendments to Rules 55 and 80.1 of the Vermont Rules of Civil Procedure

This Order was promulgated on November 5, 2019; effective January 6, 2020.

Rule 55 is amended to reflect the needs of current practice and to modernize language. The

amendment deletes the requirement of subdivision (a) for a separate entry of default by the clerk in

favor of a provision allowing the party seeking relief to file a motion for default judgment to initiate

the process.

The amendment to Rule 55(a) follows the federal rule by deleting “as provided by these rules,” so

that an indication of an intent to defend, even if not in compliance with the rules, does not trigger a

default.

Rule 55(d) is now 55(b) and former (b) is now designated (c).

The amendment deletes the first sentence of former Rule 55(b)(1), now (c)(1), requiring an

application to the court for a default judgment because it is superfluous in light of the new

requirement for a motion. The addition of a sentence to paragraph (1) makes clear that the party

seeking a default judgment has the burden on the issue of minority and must disclose any

information in that party’s possession on the issue of competency.

The amendment to Rule 55(c)(2) eliminates the formal reference to entry of judgment by the

clerk. The amendment changes the time for notice in Rule 55(c)(4) from five to seven days.

The amendment to Rule 80.1(c) provides consistency with the simultaneous amendment of Rule

55(a).

II. PROPOSED RULE AMENDMENTS

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

BEEN APPROVED BY THE SUPREME COURT.)

a. Proposed Order Amending Rule 32(c)(4) of the Vermont Rules of Criminal Procedure

The proposal amends Rule 32(c)(4) for consistency with State v. Lumumba, 2018 VT 40, 207 Vt.

254, 187 A.3d 353, State v. Bostwick, 2014 VT 97, 197 Vt. 345, 103 A.3d 476, and State v.

Cornell, 2014 VT 82, 197 Vt. 294, 103 A.3d 469. These decisions address the necessity for

procedures requiring parties to object to recommended probation conditions. The proposed

amendment makes the rule consistent with, yet not as expansive as, the provisions of Federal Rule

of Criminal Procedure 32(f)(1), which requires specific written objection not only to factual

assertions pertinent to sentence, but to all material information, sentencing guideline ranges, and

policy statements in presentence investigation reports.

The proposal amends subparagraph (c)(4)(A) to require written objections to PSI content in 7

instead of 5 days. The proposed amendment also includes an express requirement that copies of

any written objections be provided to the opposing party.

The proposal adds new subparagraph (c)(4)(C), which requires that before pronouncing sentence

and concluding the sentencing hearing, the sentencing judge must provide opportunity for comment

and objection to what are in effect any “unnoticed” conditions of probation. This proposed

amendment is intended to expressly provide a defendant with an opportunity to articulate objection

to conditions of probation that may not have reasonably featured at all in the course of the

sentencing record, and thus to preserve claims of error as to purportedly unnoticed or “surprise”

conditions, without the necessity of filing a motion for correction of sentence under V.R.Cr.P. 35.

Comments on this proposed amendment should be sent by January 6, 2020, to Hon. 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

Orange Unit

5 Court Street

Orange, VT 05038

Thomas.zonay@vermont.gov

b. Proposed Order Amending Rules 3, 7, 9, 10 of the Vermont Rules of Small Claims Procedure

The proposed amendment to Rule 3, along with simultaneous proposed amendments to Rules 7, 9,

and 10 address the lack of a current requirement that the plaintiff serve the defendant with a small

claims default judgment.

Under the existing rules, because it is a default judgment the court has no good address for the

defendant and therefore only sends a copy of the judgment to the plaintiff. However, Rule 7(a)

provides for payment within 30 days of “entry of judgment,” meaning the date that the judgment is

docketed. If no such payment is made, plaintiff may file a motion for financial disclosure, and there

is no requirement in Rule 7(a) that the plaintiff prove that the defendant has received or seen the

judgment. The plaintiff is only required to file a certificate of service showing that the motion was

sent to the defendant by regular mail. The plaintiff may also seek trustee process or a writ of

execution, or may file a judgment lien, before the defendant knows of the judgment. V.R.S.C.P. 9.

It is not until the next enforcement step (a motion for contempt for not complying with whatever

order comes out of the financial disclosure hearing) that the plaintiff is required to have the sheriff

personally serve the defendant. Even then, the judgment itself is not served, only the judicial

summons to come to the hearing. V.R.S.C.P. 8(b)(2). Rule 10(a) presents a similar problem with

appeals.

Accordingly, the proposed amendment to Rule 3(f) requires service by sheriff or other authorized

person and the filing of proof of service in every case before enforcement proceedings are taken.

Rule 3(g) is amended to conform to the amendment of Rule 3(f).

The proposal amends Rule 7(a)(1)(A) and (c) to conform to the simultaneous amendment of Rule

3(f).

The proposed amendments to Rule 9(a), (b)(1), and (c) incorporate the appropriate 30-day period

provided in Rule 10(a)(1) as simultaneously amended. If the defendant has appeared, enforcement

proceedings may be undertaken within 30 days from the entry of judgment. If the judgment is a

default judgment, the date is 30 days from the date of service on the defendant. The latter provision

is intended to conform to the simultaneous amendment of Rule 3(f).

The proposed amendment to Rule 10(a)(1) conforms appellate practice to the simultaneous

amendment of Rule 3(f) requiring service of a default judgment on the defendant before

enforcement proceedings are commenced.

Comments on these proposed amendments should be sent by January 6, 2020, to Allan Keyes,

Esq., Chair of the Advisory Committee on the Rules of Civil Procedure, 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

c. Proposed Order Amending Rule 6(15) and (26) of the Rules of the Supreme Court for

Disciplinary Control of Judges

The proposed amendments to Rule 6(15) and (26) update the cross references to the Code of

Judicial Conduct 2019, which became effective October 7, 2019.

Comments on these proposed amendments should be sent by January 6, 2020, 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 Amending Rule 40(e)(4) of the Vermont Rules of Civil Procedure, Rule

27.1(b)(4) of the Vermont Rules of Appellate Procedure, Rule 50(d)(4) of the Vermont Rules

of Criminal Procedure, and Rule 40(d)(4) of the Vermont Rules of Probate Procedure

The proposed amendments update the cross references to the Code of Judicial Conduct 2019,

which became effective October 7, 2019.

Comments on these proposed amendments should be sent by January 6, 2020, 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

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.

Please use the link below to report any form question, concern or issue

http://www.vermontjudiciary.org/website-feedback-form or you can access our Website Feedback

program at the bottom of each web page

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.