Rule 81.Applicability of the rules

Reporter’s Notes—2002 Amendment: Rule 81(a) is amended in light of the abrogation of the District Court Civil Rules and the resulting applicability of the Vermont Rules of Civil Procedure to District Court civil actions. See Reporter’s Notes to simultaneous amendment of Rule 1. The amendment also reflects other statutory changes. An obsolete reference to statutory provisions for election contests that were repealed by Act No. 269 of 1977 (Adj. Sess.), § 4(a), is deleted. Under present law, the Rules of Civil Procedure govern election contests with modifications to assure speedy disposition. See 17 V.S.A. § 2603(d).

Reporter’s Notes—1989 Amendment: Two significant modifications are made to Rule 81. The first eliminates subdivision (3) from the rule. The deleted language covered “proceedings to compel the support of a wife or a minor child or children under 15 V.S.A. §§ 201- 210, 385- 428.” Sections 201-210, as amended (and partially repealed) by Acts No. 201 and 249 of the Laws of 1973 (Adj. Sess.), authorize imposition of criminal fines and jail sentences upon married persons who, without just cause, refuse to provide support for their dependents. Support payments may be ordered as a condition of probation. These proceedings are criminal, not civil, at least in form. Beattie v. Traynor, 114 Vt. 238, 42 A.2d 435 (1945). Beattie held that, notwithstanding their criminal appearance, a “prosecution” under these statutes was civil in its “remedy.” Thus a settlement was enforceable as a contract. 114 Vt. at 241, 42 A.2d at 437. Yet it is obvious that much of the procedure found in the civil rules cannot be applied. For example, the Fifth Amendment would bar the imposition of sanctions where an answer (under Rules 7 and 8) failed to admit the truth of an allegation of nonsupport which the defendant knew to be true. Compare V.R.C.P. 11 with V.R.Cr.P. 49(d) (the good-faith and reasonable inquiry standard applies to all civil pleadings, but only to written motions and notices in criminal cases). See also Reporter’s Notes, V.R.Cr.P. 49—First 1985 Amendment (distinguishing V.R.C.P. 11 from V.R.Cr.P. 49(d) on constitutional grounds). Moreover, Vermont statutes provide an alternative avenue for obtaining support from a married person, and this avenue is wholly civil in nature. 15 V.S.A. §§ 291- 296. Support may also be obtained in a divorce action of course. 15 V.S.A. §§ 659, 752. See also V.R.C.P. 80(a) (amended in 1989 to allow all support actions to be brought under Rule 80). No reason remains, therefore, to treat actions under §§ 201-210 as civil in nature. Sections 385-428 constitute the Uniform Reciprocal Enforcement of Support Act. The statutes specify that U.R.E.S.A. actions be brought only in the district court. 15 V.S.A. § 398. Therefore only the District Court Civil Rules need refer to these sections. The other change in the rule is the elimination of reliance on the common law. The concluding paragraph of subdivision (a) formerly stated that in respects “not covered by statute, the practice in these proceedings shall follow the course of the common law but shall otherwise conform to these rules . . . .” Common law procedures have become foreign to most practitioners, and no sound reason exists for utilizing them. Therefore, the rule as amended requires that, in respects not covered by statute, the practice in these proceedings “shall conform to these rules . . . .” The result of these changes is that only two areas of statutory law are governed by Rule 81. These are proceedings for post-conviction relief, 13 V.S.A. §§ 7131- 7137, and proceedings for the contest of elections, 17 V.S.A. §§ 1361- 1366. The rule makes explicit that in these two areas statutory procedures prevail over those set forth in the rules, but where these statutes are silent the rules will provide the applicable procedure. See also D.C.C.R. 81 (in U.R.E.S.A. actions the statutory procedures are not altered by the District Court Civil Rules, but in respects not covered by statute those rules supply the relevant procedure).

Reporter’s Notes—1983 Amendment: Rule 81 is amended to add subdivision (e) to provide for the adoption of experimental procedures in one or more counties on order of the Supreme Court. Pursuant to Chapter II, § 37 of the Vermont Constitution, the Court has by Administrative Order adopted special procedures in one or more counties as an experiment. See 12 V.S.A. App. III, A.O. 22 (1981). Because there was no specified procedure for such an experiment, the Court provided for it by Administrative Order without the notice and comment that would normally precede amendment of these rules. See 12 V.S.A. App. VIII, A.O. 11 (1982). The addition of subdivision (e) to Rule 81 specifies that where the experimental procedures differ from or supplement procedures specified by the Civil Rules, the procedures will be established by Administrative Order but the process of amending the rules established by Administrative Order No. 11 will be followed. The authority of the court to create experimental procedures is clear. The court’s power to make rules of court administration or rules of practice and procedure is not limited to uniform, statewide rules. See Vermont Constitution Ch. II, §§ 30, 37. Compare 12 V.S.A. § 1; Davis v. Dunn, 90 Vt. 253, 98 A. 81 (1916). In fact, uniform statewide rules are of relatively recent origin in Vermont, and the power to take cases out of the rules for good cause has been recognized up to the Vermont Rules of Civil Procedure. See id.; In re Moody, 115 Vt. 1, 49 A.2d 562 (1946). No constitutional problem arises by having different procedural rules in effect in different parts of the state. See McGowan v. Maryland, 366 U.S. 420 (1961); Missouri v. Lewis, 101 U.S. 22 (1880). An amendment to D.C.C.R. 81(b) applies this amendment to District Court.

Reporter’s Notes: This rule is similar in effect to Federal Rule 81 and is based in part on Maine Rule 81. Rule 81(a) enumerates proceedings to which these rules have only limited applicability because the practice by statute or at common law thereunder is too well-established or complex to be readily adaptable to practice under the rules. Numerous provisions of the rules which do not conflict with the practice in the enumerated proceedings will apply to them under the rule, however. These include but are not limited to Rules 4(d)-(j), 5, 6, 7(b), 10, 11, 15, 24, 25, 43, 45, 46, 59, and 60. Use of discovery is made subject to court order because of the special nature of the proceedings involved. See Harris v. Nelson, 394 U.S. 286 (1969). The enumerated proceedings are as follows: (1) Proceedings for post-conviction relief and for habeas corpus under 13 V.S.A. §§ 7131- 7137 and 12 V.S.A. §§ 3951- 3985 are inherently civil in nature but are excluded from the rule because the procedure under them varies so greatly from that in normal civil actions. In particular, preservation of the writ of habeas corpus, which symbolizes such important and traditional rights of the citizen, seems desirable for its symbolic effect. (2) Bastardy proceedings under 15 V.S.A. §§ 331- 380, although criminal in form, are civil. See Beattie v. Traynor, 114 Vt. 238, 42 A.2d 435 (1945). They are omitted in view of the intricate nature of the statutory procedural provisions. Arrest of the putative father under 15 V.S.A. § 331 is an exception to the abolition of civil arrest in Rule 4.3. Rule 35(a), permitting blood tests, will now apply to bastardy proceedings. (3) Support proceedings are adequately covered by the Uniform Desertion and Nonsupport Act, 15 V.S.A. §§ 201- 210. Proceedings under the revised Uniform Reciprocal Enforcement of Support Act, enacted in 1969 as 15 V.S.A. §§ 385- 428, are now within the exclusive jurisdiction of the district court. 15 V.S.A. § 398. Note that jurisdiction by arrest under 15 V.S.A. § 404 is a further exception to Rule 4.3. (4) Election contest proceedings under 17 V.S.A. §§ 1361- 1366 so little resemble civil actions that there is no point in making the rules generally applicable to them. Rule 81(b), abolishing the writs of scire facias and the extraordinary writs, is similar in effect to Federal Rule 81(b) and is based on Maine Rule 81(c). Abolition of scire facias means that proceedings for forfeiture of a grant under 12 V.S.A. §§ 4981- 4996 will be carried on as an ordinary civil action and that other uses of the writ, as under 12 V.S.A. § 3486 (surety on bail) and 12 V.S.A. § 5244 (for subsequent breaches on bonds), will be by motion under the rules. The abolition of the extraordinary writs is consistent with the provisions of Rules 74 and 75, providing exclusive remedies for review of governmental action. All substantive rights to relief previously available by such writs may be obtained by proceeding under those rules or, if relief is sought against a party other than a governmental agency, by ordinary civil action. The provisions of Rule 65 pertaining to the grant of injunctive relief will supply the remedial framework for implementation of such rights. Accordingly, 12 V.S.A. §§ 4041- 4046 are superseded. Pending legislation (1971-H. 326, § 12) would amend 4 V.S.A. § 113 to give the County Courts jurisdiction of such proceedings concurrent with that of the Supreme Court. See Reporter’s Notes to Rule 75, Appellate Rule 21. Rule 81(c) makes clear that statutes, the terminology of which is made obsolete by the rules, are to be interpreted as though they had been properly amended to conform with the changed practice. Rule 81(d) gives the court a limited discretion to improvise procedures in unforeseen situations which the rules do not cover. It is not intended as a general power to enlarge the rules. See Reporter’s Notes to Rule 1.