Vt. Memo to the Bar, Dec. 11, 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: December 11, 2019

For your information, please find the following information:

• Order Promulgating the 2020 Vermont Rules for Electronic Filing

• Order Promulgating Amendments to Rules 3, 5, 5.1, 6, 9, 10, 11, 12, 13, 28, 30, and 45.1 of the Vermont Rules

of Appellate Procedure

• Order Promulgating Amendments to Rules 5 and 79 of the Vermont Rules of Civil Procedure and Rules 5 and

79 of the Vermont Rules of Probate Procedure

• Order Promulgating Amendments to Vermont Rules for Environmental Court Proceedings 3, 4, and 5, Vermont

Rules of Civil Procedure 4, 10, 44.2, 45, 77, and 79.1, Vermont Rule of Probate Procedure 4 and 79.1, and

Vermont Rule for Family Proceedings 15

• Proposed Order Amending Rule 807 of the Vermont Rules of Evidence

• Updated Court Forms

• Obligations Under A.O. 41

• eCabinet Registration

I. PROMULGATED RULE AMENDMENTS

a. Order Promulgating the 2020 Vermont Rules for Electronic Filing

This Order was promulgated on December 10, 2019; effective March 2, 2020.

The 2020 Vermont Rules for Electronic Filing are designed to conform to the upcoming new

Judiciary case management system (CMS). The CMS will have electronic filing and electronic

casefiles and will be rolled out over time in the superior courts and the judicial bureau. Additions to

these rules will be made when the new CMS is rolled out for the Supreme Court and other judiciary

entities. The existing 2010 Vermont Rules for Electronic Filing, which were designed for eCabinet,

will remain in effect and applicable to dockets where they are currently in use. Once the new CMS

is rolled out in all the locations and dockets where eCabinet has been employed, the 2010 rules will

be repealed.

Extensive instructions will supplement the rules and will often appear on screens for electronic

filing and the viewing of electronic case files. The user must follow these instructions for electronic

filing, service after commencement, and viewing of files. In addition to the efiling system, the

public and parties will be able to view electronic case files, either by remote access and/or on

terminals at court houses, through a public portal. To view nonpublic documents a separate

registration for that portal and approval of elevated status will be required.

The adoption of these rules is coordinated with the adoption of extensive amendments to the

Vermont Rules for Public Access to Court Records to enable, with necessary restrictions, the public

and filers to view electronic case files when a filing is accepted. Those rules contain specific

directions for filers to comply with requirements making certain records and information

inaccessible to the public. Filers should consult the public access rules, as well as these rules, to be

sure a filing complies.

b. Order Promulgating Amendments to Rules 3, 5, 5.1, 6, 9, 10, 11, 12, 13, 28, 30, and 45.1 of the

Vermont Rules of Appellate Procedure

This Order was promulgated on December 10, 2019; effective March 2, 2020.

The amendments to the appellate rules update language in anticipation of the new case

management system, which will be rolled out in phases throughout the state concurrent with

electronic filing and electronic case files. The rollout will initially be in divisions of the superior

court, and the Supreme Court will be at the end of the rollout period. The amendments to the

appellate rules are made to accommodate appeals from cases that were filed under the new case

management system and have electronic case files. When the case management system is

implemented in the Supreme Court, the appellate rules will be amended further. The rules are

amended in several places to use “transmit” instead of “mail” to allow electronic or other types of

transmission of documents. The term “docket entries” is replaced with the more general term

“record of actions.” Various rules have been amended to clarify when references are to the 2010

Vermont Rules for Electronic Filing.

Rules 28 and 30 are amended to specify how to refer to the record in cases filed under the 2020

Vermont Rules for Electronic Filing and to clarify that no printed case is required when there is an

electronic case file under either the 2010 or 2020 Vermont Rules for Electronic Filing. In cases with

no electronic case file, a printed case must still be filed.

c. Order Promulgating Amendments to Rules 5 and 79 of the Vermont Rules of Civil Procedure

and Rules 5 and 79 of the Vermont Rules of Probate Procedure

This Order was promulgated on December 10, 2019; effective March 2, 2020.

The amendments to V.R.C.P. 5 and V.R.P.P. 5 are made to conform the rules to the 2020

Vermont Rules for Electronic Filing. The amendments explain the certificate of service

requirements when documents are filed under the new efiling rules. The amendments clarify when

references are to the 2010 Vermont Rules of Electronic Filing.

The amendment removes V.R.C.P. 79(a)(1) and V.R.P.P. 79(c) because the custodian of records

is as specified in V.R.P.A.C.R. 3(c), effective July 1, 2019.

d. Order Promulgating Amendments to Vermont Rules for Environmental Court Proceedings 3,

4, and 5, Vermont Rules of Civil Procedure 4, 10, 44.2, 45, 77, and 79.1, Vermont Rule of

Probate Procedure 4 and 79.1, and Vermont Rule for Family Proceedings 15

This Order was promulgated on December 10, 2019; effective March 2, 2020.

The amendments to various rules are designed to conform the rules to the adoption of the new

case management system and the 2020 Vermont Rules for Electronic Filing. The new case

management will be rolled out across the state in phases. Until the new case management system

and electronic filing are fully implemented, different divisions of the superior court will be

operating under different electronic filing rules. The Environmental Division currently has

electronic filing under the 2010 Vermont Rules for Electronic Filing and so references are amended

to specify that those rules are applicable. After the Court Administrator directs that electronic filing

under the 2020 Vermont Rules for Electronic Filing will begin in the Environmental Division, the

2010 Vermont Rules for Electronic Filing will no longer apply, and the Rules for Environmental

Court Proceedings will require revision. The amendments clarify when cross references in the

environmental, civil, probate, and family rules are to the 2010 Vermont Rules for Electronic Filing.

II. PROPOSED RULE AMENDMENTS

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

BEEN APPROVED BY THE SUPREME COURT.)

Proposed Order Amending Rule 807 of the Vermont Rules of Evidence

This proposed amendment responds to the Vermont Supreme Court’s decision in State v.

Bergquist, 2019 VT 17, __ Vt. __, 211 A.3d 946, by correcting Rule 807’s constitutional

deficiencies described therein. The proposed amendments to subdivisions (c) and (f) ensure the

Rule comports with the minimum constitutional standard set in Maryland v. Craig, 497 U.S. 836

(1990), as interpreted in Bergquist.

In criminal cases, the rule balances an important public policy interest—protecting certain

witnesses in defined, vulnerable categories, from the trauma of testifying—against the defendant’s

constitutional right to confront accusers. To comport with the Sixth Amendment, as interpreted in

Craig, the proposed amendment requires the court to make its findings at least by preponderance of

the evidence, without precluding argument for the application of a stricter standard of evidence. To

make the showing of necessity for these proceedings, the proposal requires the State to 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.

The proposed amendment to subdivision (a) corrects 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, 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.”

Comments on these proposed amendments should be sent by February 10, 2020, to Elizabeth

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

Elizabeth Miller, Esq.

Dunkiel Saunders

91 College Street

Burlington, VT 05401

emiller@dunkielsaunders.com

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.

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.