Reporter’s Notes—2020 Amendment: Rule 40(e)(4) is amended to update the cross reference to the Code of Judicial Conduct 2019, which became effective October 7, 2019.
Reporter’s Notes—2018 Amendment: Rules 40(a)(1) and (b) are amended to extend their 20-day time periods to 21 days consistent with the simultaneous “day is a day” amendments to V.R.C.P. 6.
Reporter’s Notes—2011 Amendment: See Reporter’s Notes to simultaneous amendment making the Vermont Rules for Electronic Filing permanent.
Reporter’s Notes—2010 Amendment: Rules 4(b), ( l)(3); 5(b), (e), (f); 6(a), (e); 10(d); 11(a), (b); 26(g); 40(a), (b); 45(a)(1)(G); 77(c), (d); 79(a)(1), (2); 79.1(g) of the Vermont Rules of Civil Procedure rules are amended or added to conform to the Vermont Rules for Electronic Filing as adopted by simultaneous emergency amendment. See Reporter’s Notes to those rules.
Reporter’s Notes—1996 Amendment: Rule 40(e)(4) is amended to incorporate the language of Canon 3F of the revised Code of Judicial Conduct adopted effective September 1, 1994. See Reporter’s Notes to that provision and to former Rule 40(e)(4). The final sentence of the rule is retained from former Rule 40(e)(4).
Reporter’s Notes—1989 Amendment: Subdivision (e) of this rule, and D.C.C.R. 40(e), are both amended concurrently with the promulgation of the Criminal Rule on disqualification. See V.R.Cr.P. 50(d), Reporter’s Notes, 1989 Amendment. The amendments to the Civil Rule and the District Court Civil Rule conform paragraph (e) of these rules to paragraph (d)(3) of V.R.Cr.P. 50. The conforming amendments make clear that the Administrative Judge may designate his or her responsibilities under this rule to another judge, and that the Administrative Judge or designee may rule on a disqualification motion even if that judge is the subject of the motion but only if no other judge is available.
Reporter’s Notes—1988 Amendment: Rule 40 is amended to add a new subdivision (e) governing motions to disqualify. The new rule substantially departs from the procedure followed under case law decided prior to promulgation of the rule. Under Richard v. Richard, 146 Vt. 286, 287-88, 501 A.2d 1190, 1191 (1985), and Daitchman v. Daitchman, 145 Vt. 145, 146-47, 483 A.2d 270-71 (1984), and earlier cases, each Superior Judge, District Judge and Assistant Judge ruled upon a motion requesting disqualification of that judge. The amended rule requires the judge whose disqualification is sought either to refer the motion to the Administrative Judge for Trial Courts or to grant the motion. The judge whose disqualification is sought cannot, under this rule, deny the motion. The new procedure is patterned after 28 U.S.C. § 144 and the March 6, 1987 Emergency Amendment of V.R.A.P. 31. The appellate rule was based on Texas Rule of Appellate Procedure 15 (West Publ. Co., Texas Rules of Court, 1986). This rule differs from the former appellate rule both in its mechanics, since it must be modified to apply to the trial courts, and in its omission of special treatment for “frivolous” motions to disqualify. Under this rule, even purportedly frivolous motions must be either referred or granted. The appellate rule is being amended, concurrently with the promulgation of this subdivision, so that the exception for purportedly frivolous motions is deleted. Subdivision (e)(1) of the new rule uses the language of Rule 40(c)(2) on motions for continuances. As with such motions, motions for disqualification must be made no later than the opening of the court on the second day of the term in which the action is in order for trial. However, if the cause or ground of the motion is not then known, the motion “shall” be made as soon as practicable after the cause or ground becomes known. The rule on continuances, Rule 40(c)(2), uses “may” where this new rule uses “shall.” The difference is intended to highlight the importance of filing such motions promptly so as not to interfere with court scheduling any more than is necessary. The concluding sentence of subdivision (e)(1) is important. A motion which is not filed within the time constraints established by the rule shall not be denied on account of its tardiness. To allow denial on that ground would run counter to the purposes of the Code of Judicial Conduct and of this rule. Instead the attorney or party at fault for the delay may be subject to sanctions. Subdivision (e)(2) requires that all disqualification motions be supported by an affidavit, or by a certificate of a party’s attorney subject to the obligations of Rule 11. The affidavit or certificate must state the reason for seeking disqualification. An attorney or party framing the allegations in the affidavit or certificate and motion would be well advised to consult Canon 3C of the Code of Judicial Conduct, contained in Administrative Order No. 10, found within the volume entitled Vermont Rules of Probate Procedure, Administrative Orders and Rules. Canon 3C was amended March 6, 1987. See the 1987 Supplement to the above-mentioned volume. Subdivision (e)(2) also requires that, if the motion is made after the second day of the term in which the action is in order for trial, the affidavit or certificate must set forth when it was that the grounds became known. If the grounds were known before the second day, the motion may be subject to sanctions. See subdivision (e)(1), above. Subdivision (e)(3) contains the heart of the new procedure. The judge whose disqualification is sought must either grant the motion or refer it to the Administrative Judge for Trial Courts. The Administrative Judge may, in his or her discretion, decide the motion or refer it to another judge for decision. See Administrative Order No. 18, § 4, also found in the volume mentioned above. This procedure is similar to that established for the United States District Courts by 28 U.S.C. §§ 144, 455. See also Texas Rule of Civil Procedure 18a (West Publ. Co., Texas Rules of Court, 1986). The rule allows the Administrative Judge to rule on a motion to disqualify even if that judge is the subject of such a motion in the same matter. This exception to the general practice is necessary. Otherwise situations could arise in which the entire trial bench is the subject of a litigant’s motion to disqualify, and no sitting judge would be able to rule on the motion. Subdivision (e)(4) governs remittal of disqualification. Canon 3D of the Code of Judicial Conduct and this rule authorize a judge who is disqualified by the terms of Canon 3C(1), 3C(2)(c), or 3C(2)(d) to disclose on the record the grounds for disqualification and to do so instead of sua sponte withdrawing (if no motion has been filed) or utilizing subdivision (e)(3) (if a motion has been filed). The rule refers to a judge who has been “determined to be disqualified” because it is the judge himself or herself who will recognize that grounds for disqualification exist, and will initiate the remittal process as an alternative to disqualification. The three subsections of Canon 3C listed direct judges to withdraw: (1) if the judge’s impartiality might reasonably be questioned; (2) if the judge or a family member has a financial interest in the case or in a party; and (3) if the judge or a family member is a party, an attorney or a witness in the case or could be substantially affected by the outcome. If the disclosure leads the parties and lawyers to agree in writing to waive the disqualification, the judge may continue to participate. Compare 28 U.S.C. § 455 (authorizing remittal solely where the judge’s impartiality might reasonably be questioned). The Vermont Code and this rule are designed to authorize remittal, and by this means avoid delay, only where the reason for disqualification is such that judges, in some circumstances, can be expected to retain their impartiality to the satisfaction of all parties involved. If the disclosure does not, without any participation by the judge, lead the parties and lawyers to agree in writing to remittal, the judge must immediately withdraw, or, if subdivision (e)(3) has been invoked (by the filing of a motion), immediately grant or refer the motion.
Reporter’s Notes—1981 Amendment: Rule 40(d) is amended to authorize an attorney’s certificate to state the reasons for continuance. The attorney’s certificate is specifically made subject to the obligations of Rule 11, that is: that the attorney has read the certificate, that there is good ground to support it and that it is not interposed for delay. The affidavit requirement in Rule 40(d) suggested that only statements from the parties themselves, and not their attorneys, could be used to satisfy the rule since attorneys were subject to responsibilities that made a statement under oath unnecessary. The parties are not, however, always in the position to state the essential facts justifying the continuance because the litigation is being managed by an attorney. The amendment clearly authorizes attorneys to state the reasons for continuance and gives them an appropriate vehicle to do so.
Reporter’s Notes—1980 Amendment: The second sentence of subdivision (c)(2) is amended by changing the reference to the Chief Superior Judge to a reference to the Administrative Judge. See the Reporter’s Notes to the simultaneous amendment to Rule 16.1. The reference to 4 V.S.A. § 906 is deleted as unnecessary, since this rule now specifies the type of rulings (resolving conflicting appointments of trial attorneys) authorized by that statute, which was amended in 1980 by changing “chief superior judge” to “administrative judge.” Furthermore, the principal authority for those rulings is now found in § 4(f) of Administrative Order No. 18. See 12 V.S.A. App. VIII. As now worded, of course, this rule will not be rendered technically obsolete should either the statute or administrative order be renumbered.
Reporter’s Notes—1979 Amendment: Rule 40(c)(3) is amended by the addition of a sentence which makes clear that a continuance may be on conditions as to costs and the like, in the court’s discretion. In a 1977 amendment of this rule, a sentence referring to “continued on terms” was deleted with no intention to alter the practice. See Reporter’s Notes to that amendment.
Reporter’s Notes—1977 Amendment: Rule 40 is amended to cure a problem that has arisen in the procedure for continuances by agreement and to remove language rendered obsolete by recent statutory changes. Under present Rule 40(c)(1), continuances by agreement are frequently entered into at the last minute before an already scheduled trial, with consequent waste of time on the part of the judges and clerks. To alleviate this problem, Rule 40(a)(2) is added, providing for periodic issuance of a trial list upon which will appear specific trial assignments, whether of cases reached in order or specially assigned under Rule 40(a)(1). Such lists have been used by many judges even though not provided for in the rules. Now the lists must be issued not later than the Tuesday before the week in which the first case is assigned. For any of the first 20 actions on a trial list issued under Rule 40(a)(2) the amendment to Rule 40(c)(1) imposes two conditions on the right to a continuance by agreement: (A) at least 24 hours notice must be given to the clerk; (B) the action must be no more than one year old. If these conditions are not met, continuances by agreement will no longer be honored. When a continuance by agreement of an action among the first 20 on a trial list has been entered, that action may thereafter be brought forward only on motion and a showing that the parties now are, or ought to be, ready. The foregoing conditions do not apply to actions not among the first 20 on a trial list. They may be freely continued by agreement as before, subject only to the two-year rule of Rule 41(b)(1). The figure 20 was chosen as a rough reflection of the number of cases likely to be reached on a given list. Note that the foregoing provisions do not apply to continuances for cause, which continue to be covered as before by Rules 40(c)(2), (3), and (d). The amendments to Rules 40(c)(2) and (3) are intended only to remove references to costs of the term, which now have no meaning in light of the 1973 amendment of 32 V.S.A. § 1471, setting costs at $35, plus service and witness fees. The words “and rules” are deleted from Rule 40(c)(3) as a clean-up change. In former County Court Rule 20, from which the language came, “rules” was used in the technical common-law sense of “orders,” rather than in the sense of “rules of court.”
Reporter’s Notes: This rule differs significantly from its federal equivalent as well as from practice under former County Court Rules 3, 19-21. It is based in part on Maine Rule 40. Rule 40(a) specifies that the clerk shall maintain a hearing calendar and distribute it in advance of the beginning of each term. Cf. former County Court Rule 3.5. It is made clear that ultimate control of the calendar rests with the court. The rule makes important changes in prior practice. The docket will no longer be called on the first day of the term, as provided in former County Court Rule 3.1. Instead the clerk will routinely set cases for trial in which issue is joined. Parties who wish to vary the assignment given them by the clerk must request the change from the Presiding Judge, or must agree upon or request a continuance. See Rule 40(c). The pendency of discovery proceedings or pretrial conference will be sufficient grounds for continuance. Action formerly taken by the court at the call of the docket on the first day of the term will now be taken when a case is reached on the calendar and called for trial, or under Rules 40(b) and 41(b)(1). Rule 40(b) provides for a special “progress calendar” for actions which have been on the docket for two years or more. Actions listed on this calendar will be dismissed unless the parties act in accordance with Rule 41(b)(1). See Reporter’s Notes to Rule 41. Rule 40(c)(1), makes clear that the parties may continue an action by agreement at any time, subject to the power of the court to order a dismissal under rule 41(b)(1) of an action that has been pending more than two years. Rule 40(c)(2) is taken from Maine Rule 40(b), with the addition of a sentence based on former County Court Rule 3.6. It is necessary to provide a time for motions for continuance, because of the abolition of the call of the docket referred to above. Rule 40(c)(3) is taken verbatim from former County Court Rules 20, 21. Rule 40(d) is taken substantially verbatim from former County Court Rule 19.