Vt. Sup. Ct. Promulgation Order of Feb. 3, 2025: VRCP Deleting11(e)Amending43(d)(h)56(c)(1)(2)(6)(d)(h)

STATE OF VERMONT

VERMONT SUPREME COURT

FEBRUARY TERM, 2025

Order Deleting Rule 11(e) of the Vermont Rules of Civil Procedure and Promulgating

Amendments to Rules 43(d) and (h), 56(c)(1), (2) and (6), 56(d), and 56(h) of the Vermont

Rules of Civil Procedure.

Pursuant to the Vermont Constitution, Chapter II, § 37, and 12 V.S.A. § 1, it is hereby ordered:

1. That Rule 11(e) of the Vermont Rules of Civil Procedure be deleted.

This amendment deletes Rule 11(e), captioned “Use of Declaration In

Place of Notarization,” which authorized use of a declaration whenever

these rules required the filing of a statement made under oath, an affidavit,

or a notarized document. Rule 11(e) did not apply when an oath, affidavit,

or notarization was required by statute. Amendments to 4 V.S.A. § 27b by

2023, No. 46, § 4, permit a broadening of the declaration rule. These

changes are incorporated in simultaneously adopted Rule 43(h), titled

“Declaration In Place of Affidavit or Oath.” Rule 43(h) authorizes use of a

declaration without exception whenever a rule or court order requires

filing or service of an affidavit or a statement signed under oath.

2. That Rule 43(d) and (h) of the Vermont Rules of Civil Procedure be amended as follows

(new matter underlined; deleted matter struck through):

RULE 43. EVIDENCE

(d) Affirmation in Lieu Place of Oath. Whenever under these rules an oath is required to be

taken, a solemn affirmation may be accepted in lieu thereof. Whenever a rule or court order

requires a person to take an oath, the court may accept a solemn affirmation in its place.

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(h) Order of Evidence. [Abrogated]. Declaration In Place of Affidavit or Oath. Whenever a

rule or court order requires the filing or service of an affidavit or a statement signed under oath, a

party may instead file or serve a document signed under penalty of perjury with language

immediately above the signature in substantially the following form:

“I declare that the above statement is true and accurate to the best of my

knowledge and belief. I understand that if the above statement is false, I will be

subject to the penalty of perjury or to other sanctions in the discretion of the

court.”

Rule 43(d) is reworded for clarity and consistency. Rule 43(h) is

added to authorize use of a declaration in place of an affidavit or

oath. This reflects the provisions of 4 V.S.A. § 27b, as amended

effective June 5, 2023, as applied to oaths and affidavits.

Subdivision (h) allows the use of an unsworn and unnotarized

declaration, signed in proper form as true under penalty of perjury,

in place of an affidavit or oath otherwise required by a rule or court

order. A declaration, for example, could be used to verify answers

to interrogatories otherwise required to be signed under oath.

V.R.C.P. 33.

Rule 43(h) does not extend to other notarizations, such as

acknowledgements, as to which the statute (or its exceptions) may

apply. See 4 V.S.A. § 27b (referring broadly to any document that

would otherwise require the approval or verification of a notary but

stating exceptions). Rule 43(h) has no exceptions.

The words used in the declaration must substantially conform to

those in subdivision (h). A false statement or affidavit is subject,

not only to penalty of perjury, but also to other sanctions in the

discretion of the court. See also V.R.C.P. 56(h) (Affidavit or

Declaration Submitted in Bad Faith).

Rule 11(e), which authorized use of a declaration in place of a

“notarization” not required by statute, is concurrently deleted.

While the rule by its terms allows a declaration as an alternative

to affidavits submitted for summary judgment purposes, Rule 56 is

concurrently amended to clarify that any declaration used to

support or oppose summary judgment must be made on personal

knowledge. V.R.C.P. 56(c)(6).

3. That Rule 56(c)(1), (2) and (6), (d), and (h) of the Vermont Rules of Civil Procedure be

amended as follows (new matter underlined):

RULE 56. SUMMARY JUDGMENT

(c) Procedures Supporting Factual Positions.

(1) A moving party asserting that a fact cannot genuinely be disputed must support the

assertion by filing a separate and concise statement of undisputed material facts consisting of

numbered paragraphs with specific citations to particular parts of materials in the record,

including depositions, documents, electronically stored information, affidavits, declarations,

stipulations (including those made for purposes of the motion only), admissions, interrogatory

answers, or other admissible materials. Upon request, the party must provide each adverse party

with a copy of the statement in an editable format that allows entry of responses to be

incorporated into a single document.

(2) A nonmoving party responding to a statement of undisputed material facts and asserting

that a fact is genuinely disputed, that the materials cited do not establish the absence of a genuine

dispute, or that the moving party cannot produce admissible evidence to support the fact, must

file a paragraph-by-paragraph response, with specific citations to particular parts of materials in

the record that the responding party asserts demonstrate a dispute, including depositions,

documents, electronically stored information, affidavits, declarations, stipulations (including

those made for purposes of the motion only), admissions, interrogatory answers, or other

admissible materials. The responding party must reproduce each numbered paragraph of the

moving party’s statement before including the response thereto. To the extent that the responding

party asserts that there are additional material facts that should be considered, the party may file

a separate and concise statement of additional material facts in numbered paragraphs, with

specific citations to particular parts of admissible materials in the record. Upon request, the party

must provide each adverse party with a copy of its response and of any separate statement of

additional facts in editable format that allows entry of replies to be incorporated into single

documents.

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(6) Affidavits or Declarations. An affidavit or declaration used to support or oppose a

motion must be made on personal knowledge, set out facts that would be admissible in evidence,

and show that the affiant is competent to testify on the matters stated.

(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or

declaration that, for specified reasons, it cannot present facts essential to justify its opposition,

the court may:

(1) defer considering the motion or deny it;

(2) allow time to obtain affidavits or declarations, or to take discovery; or

(3) issue any other appropriate order.

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(h) Affidavit or Declaration Submitted in Bad Faith. If satisfied that an affidavit or

declaration under this rule is submitted in bad faith or solely for delay, the court—after notice

and a reasonable time to respond—may order the submitting party to pay the other party the

reasonable expenses, including attorney’s fees, it incurred as a result. An offending party or

attorney may also be held in contempt or subjected to other appropriate sanctions.

Rule 56 is amended to refer to a “declaration,” an unsworn document

signed subject to the penalties of perjury under these rules or

applicable law. See 4 V.S.A. § 27b and V.R.C.P 43(h). This

amendment is consistent with Federal Rule of Civil Procedure 56, on

which it is based. See V.R.C.P. 56, Reporter’s Notes—2012

Amendment (Rule 56, as originally adopted and amended, was

replaced in 2012 by rule based almost entirely on December 2010

amendments of Federal Rule 56 but omitted references to

declarations). Under Rule 56(b)(6) as now amended, a declaration

used to support or oppose a summary judgment motion must be based

on personal knowledge.

4. That these amendments be prescribed and promulgated, effective on July 1, 2025. The

Reporter’s Notes are advisory.

5. That the Chief Justice is authorized to report these amendments to the General Assembly in

accordance with the provisions of 12 V.S.A. § 1, as amended.

Dated in Chambers at Montpelier, Vermont, this 3rd day of February, 2025.

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Paul L. Reiber, Chief Justice

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Harold E. Eaton, Jr., Associate Justice

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Karen R. Carroll, Associate Justice

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Signed by the Vermont Supreme Court William D. Cohen, Associate Justice

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Nancy J. Waples, Associate Justice