Rule 40 - Assignment of Cases for Hearing; Continuances; Disqualifications(a)Notice of hearing. When a probate proceeding is commenced by filing a petition pursuant to Rule 3, the court shall set a date for hearing in accordance with Rule 12. The petitioner shall include that date in the notice to be served under Rule 4. Whenever a motion or other paper is filed upon which a hearing will be held, the notice shall be served a reasonable period of time before the hearing to allow each party served to prepare and arrange to appear. The court may:
(1) Require the party who filed the paper to serve notice of the date of the hearing, as set by the court, on the parties required by these rules to be served, or (2) Serve notice of the hearing date, as set by the court, by ordinary mail on the parties required by these rules to be served. (b)Continuances. A hearing may be continued only by order of the court based on a motion or stipulation of the parties and a finding of good cause. A stipulation or motion for continuance shall be accompanied by a statement of the reason for the continuance and the date on which such reason will be removed. Failure to object to a motion for continuance within a reasonable period of time shall be considered as assent to the continuance. The court may require that a motion for continuance be supported by affidavits, or a certificate of an attorney subject to the obligation of Rule 11, showing good cause for the continuance. If the court orders a continuance, the court shall specify the date to which the hearing is continued, and the moving party shall notify the parties entitled to notice, unless otherwise ordered by the court. (c)Guardianships. Notwithstanding subsections (a) and (b), in a guardianship proceeding filed under 14 V.S.A. § 3060 et seq. the assignment of cases for hearing and the granting of continuances shall be governed by 14 V.S.A. § 3064.(d)Disqualification.(1) A motion for disqualification of a judge shall be made as soon as practicable after the cause or ground becomes known. A motion which is filed in violation of this paragraph shall not for this reason be denied but may, in the discretion of the court, render the attorney or party subject to sanctions. (2) Motions for disqualification shall be accompanied by an affidavit, or a certificate of a party's attorney subject to the obligations of Rule 11, stating the reason therefor and when such reason was first known. (3) The judge whose disqualification is sought shall either disqualify himself or herself or, without ruling on the motion, refer the motion to the Chief Superior Judge or a designee thereof. The Chief Superior Judge or designee may refer the motion to another judge for decision or may rule on the motion.(4) A judge who has been determined to be disqualified by the terms of Rule 2.11 of the Code of Judicial Conduct for any reason other than personal bias or prejudice concerning a party may disclose on the record the basis of the judge's disqualification and may advise the parties and their lawyers that they may consider, out of the presence of the judge, whether to waive disqualification. If, following disclosure, the parties and lawyers, without participation by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. If the parties and lawyers do not agree to waive the disqualification, the judge shall immediately withdraw from the proceeding or, if a motion for disqualification has been filed, immediately grant or refer the motion. Amended May 14, 1986, eff. 7/1/1986; 11/20/2001, eff. 3/1/2002; amended Feb. 10, 2020, eff. 4/13/2020; amended November 6, 2023, eff. 1/8/2024.Reporter's Notes-2024 Amendment
Rule 40(d)(3) is amended to make the procedure followed for disqualification in the probate division consistent with the procedure followed in the civil and criminal divisions. The term Administrative Judge for Trial Courts, which is used in the parallel civil and criminal rules, has been replaced with Chief Superior Judge, consistent with Administrative Order 18.
Reporters Notes-2020 Amendment
Rule 40(d)(4) is amended to update the cross reference to the Code of Judicial Conduct 2019, which became effective October 7, 2019.