Rule 4.3.Arrest

Reporter’s Notes: This rule abolishes all forms of civil arrest before final judgment except in contempt proceedings initiated under 12 V.S.A. §§ 121- 123 or conducted in summary fashion under a court’s inherent power to punish for a contempt in its presence, recognized in In re Cooper, 32 Vt. 253 (1859); Ward v. Ward, 70 Vt. 430, 433, 41 A. 435 (1898). Arrest also remains available under 12 V.S.A. § 1624 to bring a contemptuous witness into court. See Rule 45(f). See also 14 V.S.A. §§ 1551, 1552 (probate process against person suspected of embezzlement, etc., who refuses to appear). In addition, arrest is available in statutory bastardy and nonsupport proceedings, and forcible entry and detainer proceedings, to which these rules do not apply. See Reporter’s Notes to Rule 81(a)(2), (3); 12 V.S.A. §§ 4911- 4926. Use of the remedy in these cases may also be subject to the constitutional defect discussed below, however. All provisions of 12 V.S.A. §§ 3521- 3693 pertaining to arrest on mesne process are superseded by the rule. While the Court has held civil arrest not in violation of the due process clause, LaFlamme v. Milne, 127 Vt. 301, 248 A.2d 692 (1968), cert. denied, 395 U.S. 965, 396 U.S. 915 (1969), the remedy is within the scope of Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337 (1969), which made clear that provisional remedies depriving defendant of property even temporarily prior to adjudication of the merits of the claim against him will be permitted only as a matter of urgent necessity. See Reporter’s Notes to Rule 4.1. There is every reason to suppose that the United States Supreme Court would restrict even more severely or forbid altogether a remedy that is a deprivation of personal liberty. Constitutional questions aside, civil arrest is abolished as a matter of sound policy. It imposed an irreparable personal indignity upon an individual whose rights had not yet been adjudicated. The risks of action for false imprisonment if the statutory procedure were not meticulously complied with had in any event severely limited the use of the remedy. See Thurston v. Leno, 124 Vt. 298, 204 A.2d 106 (1964). Arrest should not be available for the litigant who wishes to take those risks for purposes of harassment or vengeance. It is unnecessary as security for a judgment in light of the availability of attachment and trustee process and the possibility of arrest on execution after judgment. See Rule 69.