Vt. R. Prob. P. 6
Vt. R. Prob. P. 6
Reporter's Notes-2018 Amendment
Rule 6(a) is amended to adopt the "day is a day" rule, a simplified method of computing time periods. The amendment incorporates, with minor changes, the language of the simultaneous amendment of V.R.C.P. 6(a), which, in turn, is based upon a 2009 amendment of F.R.C.P. 6(a). The amendment serves the purposes of both achieving simplicity and maintaining uniformity with the Vermont Civil Rules and the federal practice.
As the Federal Advisory Committee's Notes point out, this computation method does not apply when a statute prescribes a specific method for computing time. Amended V.R.P.P. 6(a) retains the language of the former rule making its computation provisions apply to a time period "in any applicable statute" (emphasis added) and clarifies that it is applicable only where the statute "does not specify a method of computing time." Federal Rule 6(a) as amended in 2009 omitted "applicable" from the prior federal rule in adopting language otherwise substantially identical to the language of amended V.R.C.P. 6(a). The Federal Advisory Committee's Note does not address the question whether "statute" standing alone includes every enacted provision containing a time period.
The retention of "applicable" in the amended Vermont rule is intended to preserve the effect of two Vermont Supreme Court decisions making clear that the test of whether a statute is "applicable" under former V.R.C.P. 6(a) is whether the statute concerns matters to which the Rules of Civil Procedure apply under V.R.C.P. 1. See Allen v. Vt. Emp't Sec. Bd., 133 Vt. 166, 168, 333 A.2d 122, 124 (1975), and State v. Hanlon, 164 Vt. 125, 128, 665 A.2d 603, 604 (1995), further discussed in the Reporter's Notes to the simultaneous amendment of V.R.C.P. 6(a).
The Federal Advisory Committee's Notes provide a helpful further explanation of the change in the computation method:
Under former Rule 6(a), a period of 11 days or more was computed differently than a period of less than 11 days. Intermediate Saturdays, Sundays, and legal holidays were included in computing the longer periods, but excluded in computing the shorter periods. Former Rule 6(a) thus made computing deadlines unnecessarily complicated and led to counterintuitive results. For example, a 10-day period and a 14-day period that started on the same day usually ended on the same day-and the 10-day period not infrequently ended later than the 14-day period....
Under [the amended rule], all deadlines stated in days (no matter the length) are computed in the same way. The day of the event that triggers the deadline is not counted. All other days-including intermediate Saturdays, Sundays, and legal holidays-are counted, [except that if] the period ends on a Saturday, Sunday, or legal holiday, then the deadline falls on the next day that is not a Saturday, Sunday, or legal holiday.
The phrase "legal holidays" in new Rules 6(a)(l)-(3) is defined in new Rule 6(a)(6) to include both federal and state holidays.
Of course, if the register's office is inaccessible on the last day or hour, or the day or hour to which the period has been extended. Rule 6(a)(3) provides that the deadline falls on the next accessible or available day or time. Inaccessibility includes failure of the electronic filing system in a case where a document is to be filed electronically. See V.R.E.F. 4(c); Federal Advisory Committee's Note to 2009 amendment adding F.R.C.P. 6(a)(3). Note that "act, event, or default" has been changed in the amended rule to "event" for brevity and simplicity. The change is not intended as a change in meaning.
Periods of less than 11 days in other provisions of the rules would be shortened by the inclusion of intermediate Saturdays, Sundays, and legal holidays. Accordingly, shorter time periods in other rules are being extended by simultaneous amendments, generally following guidelines stated in the Federal Advisory Committee's Notes:
Most of the 10-day periods were adjusted to meet the change in computation method by setting 14 days as the new period. A 14-day period corresponds to the most frequent result of a 10-day period under the former computation method-two Saturdays and two Sundays were excluded, giving 14 days in all. A 14-day period has an additional advantage. The final day falls on the same day of the week as the event that triggered the period-the 14th day after a Monday, for example, is a Monday. This advantage of using week-long periods led to adopting 7-day periods to replace some of the periods set at less than 10 days, and 21-day periods to replace 20-day periods.
In sum, in the Vermont rules, most periods of 3 days are changed to 5 unless there is a specific reason for the shorter time. Periods of 5 to 20 days are converted to 7 or multiples of 7 for convenience. Thus, 5 days becomes 7. Seven days remains 7. Ten and 15 days become 14. Twenty days become 21. Several 10-day time periods were enlarged and changed to 28 days for consistency with the changed federal standard for motion practice. Thirty-day time periods remain unchanged. Foity-five and 50-day periods, not found in the Federal Rules, have been changed to 42 and 49 days, consistent with the "multiple of 7" simplification adopted in the Federal Rules.
Note that time periods may be either forward-looking or backward-looking. Thus, amended V.R.P.P. 4(e) is forward-looking, requiring publication of notice "within 21 days after the petition is filed or the order is granted." Amended V.R.P.P. 6(c) is backward-looking, requiring service of affidavits supporting a motion "not later than seven days before the hearing" unless the court approves a shorter time. The last day of a period ending on a weekend or hoHday should be determined by counting in the same direction that the time period runs. For example, the Federal Advisory Committee's Notes suggest, that if
a filing is due within 30 days after an event, and the thirtieth day falls on Saturday, September 1, 2007, then the filing is due on Tuesday, September 4, 2007 (Monday, September 3, is Labor Day). But if a filing is due 21 days before an event, and the twenty-first day falls on Saturday, September 1, then the filing is due on Friday, August 31. If the clerk's office is inaccessible on August 31, then [the rule] extends the filing deadline forward to the next accessible day that is not a Saturday, Sunday, or legal holiday-no later than Tuesday, September 4.
In either the "after" or "before" situation, if the clerk's office in this example were inaccessible on Tuesday, September 4, the extension would continue until the office was accessible.
New Rules 6(a)(4)-(6) are based on the comparable provisions of F.R.C.P. 6(a) as amended in 2009.
Rule 6(a)(7) is added consistent with Act 11 of 2017 to make clear that an applicable statute, or another provision of these or other court procedural rules, computing a time period in "business days" creates an exception to the "day is a day" counting method generally made applicable by Rule 6(a)(1). Cf 14 V.S.A. § 2625(f)(2), as amended by Act 11 of 2017. Intermediate Saturdays, Sundays, and legal holidays will not be counted in computing a period specified to be in "business days," contrary to the practice specified by Rule 6(a)(1) for computing periods not so labeled.
Rule 6(b) is revised to adopt the format and language of F.R.C.P. 6(b) as restyled in 2007 and amended in 2009. The one-day time period in Rule 6(c) for service of opposing affidavits on motions is changed to 7 days, consistent with V.R.C.P. 6(d)(2) and F.R.C.P. 6(c)(2).
Rule 6(d), providing an additional 3 days for actions required after service by mail, has been revised to be consistent with the amendments to V.R.C.P. 6(e).