Vt. Memo to the Bar, Mar. 10, 2020

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: March 10, 2020

For your information, please find the following information:

• Order Promulgating Administrative Order No. 48

• Proposed Order amending V.R.P.P. 77(e)

• Proposed Order amending V.R.P.P. 66 and 80.3 and Adding V.R.P.P. 74

• Proposed Order adding V.R.P.P. 80.9, 80.10, and 80.11

• Proposed Order amending V.R.C.P. 3.1 and V.R.A.P. 24

• Proposed Order amending V.R.P.P. 3.1

• Updated Court Forms

• Obligations Under A.O. 41

• eCabinet Registration

I. PROMULGATED RULE AMENDMENTS

Order Promulgating Administrative Order No. 48

This Order was promulgated on March 9, 2020; effective immediately.

Consistent with the Court’s administrative responsibilities under the Vermont Constitution,

Administrative Order 48 effectuates the Court’s ongoing emergency planning. When there is an

emergency, the judiciary may be required to implement measures to ensure that litigants, staff, and

judiciary personnel can access and participate in judicial proceedings. This may include modifying

or suspending existing rules regarding time deadlines or the use of video, audio, or other

technologies.

This order was sent out for comment on February 11, 2020. The comment period remains open.

Comments on this order should be sent by April 13, 2020, to Emily Wetherell, Deputy Clerk of 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. PROPOSED RULE AMENDMENTS

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

BEEN APPROVED BY THE SUPREME COURT.)

a. Proposed Order amending V.R.P.P. 77(e)

The proposed amendment to Rule 77(e) deletes paragraphs (1)-(5) and instead incorporates the

amended Vermont Rules for Public Access to Court Records, promulgated effective July 1, 2019,

as the source of exceptions to the general rule of public access to probate division records. The

Public Access Rules support the implementation of the electronic case management system in all

dockets in all courts. The proposed amendment is intended to eliminate the possibility of

inconsistencies that might otherwise arise between different sets of rules in the context of electronic

filing.

Comments on this proposed amendment should be sent by May 11, 2020, to Hon. Jeffrey Kilgore,

Chair of the Advisory Committee on the Rules of Probate Procedure, at the following address:

b. Proposed Order amending V.R.P.P. 66 and 80.3 and Adding V.R.P.P. 74

The proposed amendment to Rule 66 clarifies its provisions in light of the Vermont Trust Code,

14A V.S.A. §§ 101-1204, and adds more explicit provisions concerning duties under the Rule. The

proposed amendment to Rule 66 clarifies that its requirements do not apply to a trustee, given the

provision of 14A V.S.A. § 201. The proposal adds a requirement to file a supplemental inventory

for omitted or newly discovered assets or information in Rule 66(a)(2) to implement 14 V.S.A.

§ 1053(a) as added by 2017, No. 195 (Adj. Sess.), § 6, effective July 1, 2018. The proposal also

adds Rule 66(c)(4), requiring a sworn statement by the fiduciary that there are no outstanding

expenses or unpaid debts or other claims against the estate, to provide assurance that the estate will

not be reopened after compliance with Rules 66(c)(3) (final inventory) and 60.1(a)(2),(3) (closure

of estate upon submission and court approval of fiduciary’s report).

Proposed Rule 74 implements the provisions of 14 V.S.A. §§ 1851-1854, enacted by 2017, No.

195 (Adj. Sess.), § 12. The statute provides a process for all estates other than small estates opened

under 14 V.S.A. §§ 1901-1903, under which the court may waive further administration. The

provisions of the rule track the statute with some variations in language and a few additional

features noted below.

The proposed amendment to Rule 80.3 makes it consistent with the statutory provisions

governing small estates, 14 V.S.A. §§ 1901-1903, as amended by 2019, No. 36, § 1, effective

July 1, 2019.

Comments on these proposed amendments should be sent by May 11, 2020, to Hon. Jeffrey

Kilgore, Chair of the Advisory Committee on the Rules of Probate Procedure, at the following

address:

c. Proposed Order adding V.R.P.P. 80.9, 80.10, and 80.11

Proposed new Rules 80.9-80.11 incorporate, with appropriate modifications, provisions of Rules

6, 6.1, 7, and 7.1 of the Rules for Family Proceedings regarding appointment of a guardian ad litem

or an attorney.

Proposed Rule 80.9(a) makes the procedure for appointment of a guardian applicable to nearly all

matters affecting minors under 14 V.S.A. Chapter 111 and gives the rule a broad scope to include

the appointment of a financial guardian, modifications of permanent guardianships, and minor

custodial guardianships. Throughout Rule 80.9, “minor” is substituted for “ward,” “proposed

ward,” “person under guardianship,” or “child” for uniformity and simplicity of usage.

Comments on these proposed amendments should be sent by May 11, 2020, to Hon. Jeffrey

Kilgore, Chair of the Advisory Committee on the Rules of Probate Procedure, at the following

address:

d. Proposed Order amending V.R.C.P. 3.1 and V.R.A.P. 24

The proposed amendment to Rule 3.1 eliminates ambiguous, inconsistent, or obsolete language,

including the time-honored but unspecific label “in forma pauperis,” and simplifies the process.

Simultaneous conforming amendments are made to V.R.A.P. 24 and V.R.P.P. 3.1.

The proposal eliminates consideration of the income of “the applicant’s cohabiting family

members” in determining the applicant’s income as ambiguous and overbroad. To the extent that

paragraph (b)(2), covering an applicant who is not an aid recipient, requires consideration of more

than the applicant’s resources, the proposal uses “household income” instead. The proposal

eliminates language in paragraph (b)(1), which limited qualifying public assistance to that

constituting “a major portion of subsistence” because of its breadth and ambiguity and the burden

of calculation that it imposes on the clerk or designee.

Proposed Rule 24 is amended for consistency with the proposed simultaneous amendments to

V.R.C.P. 3.1 and V.R.P.P. 3.1.

Comments on these proposed amendments should be sent by May 11, 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

e. Proposed Order amending V.R.P.P. 3.1

The proposed amendment to Rule 3.1 eliminates ambiguous, inconsistent, or obsolete language,

including the time-honored but unspecific label “in forma pauperis.” The proposal simplifies the

process, consistent with the simultaneous proposed amendments to V.R.C.P. 3.1 and V.R.A.P. 24.

Comments on this proposed amendment should be sent by May 11, 2020, to Hon. Jeffrey Kilgore,

Chair of the Advisory Committee on the Rules of Probate Procedure, at the following address:

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.