Rule 83.Definitions

Reporter’s Notes—2010 Emergency Amendment: Rule 83 is amended to implement Act 154 of 2009, § 7 (Adj. Sess.), An Act Relating to Restructuring of the Judiciary, effective July 1, 2010, which enacted 4 V.S.A. § 30 establishing a single Superior Court of statewide jurisdiction with Civil, Criminal, Family, and Environmental divisions to replace the former Superior, District, Family and Environmental courts. See Reporter’s Notes to simultaneous emergency amendment of Rule 1. The present rule is redesignated as subdivision (a), and its provisions are amended in various respects to conform with the new structure established by the Act. Note that “presiding judge” in amended Rule 83(a) refers to the traditional role of a superior judge sitting with assistant judges, which is carried forward in new 4 V.S.A. § 36. For purposes of the rules, the term does not mean the presiding judge of each unit to be assigned by the administrative judge pursuant to 4 V.S.A. § 73(a) for administrative functions pursuant to § 73(c). New subdivision (b) is intended to provide “global” definitions that indicate the appropriate terminology to replace specific terms in the existing rules. Note that the definitions may not always apply in context. When a term is used in a sense different than that contemplated by these provisions, context should dictate the meaning to be given it.

Reporter’s Notes—2002 Amendment: Rule 83 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.

Reporter’s Notes—1985 Amendment: The definition of “court” contained in Rule 83(1) is amended to conform to the recently passed legislation on the participation of assistant judges, Act No. 201, 1983 (Adj. Sess.). See also Reporter’s Notes—1985 Amendment to Rules 39, 65 and 80. The legislation amended 4 V.S.A. § 219 to allow assistant judges to sit in equity matters. Accordingly, this definition of “court” is amended to strike the language that states that the court is a Superior Judge “in cases in which equitable relief is sought.” Because the legislature has now spoken clearly on the role of assistant judges, a specific definition of court is no longer necessary. Thus, there is no attempt to embody the legislative definition of court in the rule. There is one exception to the absence of specificity. The new statute allows the presiding judge to act alone on a “petition for emergency relief” when the full court is not sitting. 4 V.S.A. § 112(f). The rule defines the term “emergency relief” as present when the court can act ex parte. Examples are the ex parte writ of attachment, Rule 4.1(b)(3); the ex parte trustee process, Rule 4.2(b)(3); the ex parte writ of replevin, Rule 64(b)(3); the ex parte temporary restraining order, Rule 65(a); and the ex parte abuse prevention order, Rule 80(m)(3).

Reporter’s Notes—1980 Amendment: Subdivision (1) is amended to conform the definition of “court” to the fact that a judge acting for the regularly assigned, or presiding, judge need not be another Superior Judge. See the second paragraph of the Reporter’s Notes to the simultaneous amendment to Rule 16.1.

Reporter’s Notes: This rule has no equivalent in the Federal Rules but is based on Maine Rule 83. It is intended to clarify usage in rules where the terms indicated have been used for simplicity’s sake. In particular, with regard to the term “court” in Rule 83(1), it should be noted that a number of rules specify that an act is to be performed by the Presiding Judge or a Superior Judge alone, regardless of the type of action. Where “court” is used, it means the full court in cases that would heretofore have been appropriate for the cognizance of the Assistant Judges. In equity cases, in which the Assistant Judges lack jurisdiction, it means the Presiding Judge from whom relief is sought or a judge acting for him, as by appointment under Rule 63. See Reporter’s Notes to Rule 1; cf. Villeneuve v. Bovat, 128 Vt. 345, 262 A.2d 925 (1970). When a Superior Judge is acting alone, as under 4 V.S.A. § 117 or a provision such as Rule 30(d), “court” in any applicable rule means that judge.