were repealed. Two years later, when the Court adopted the civil rules, Rule 2 pro- claimed the merger: “There shall be one form of action to be known as ‘civil ac- tion.’”58
The Reporter’s Notes to V.R.C.P. 1
clearly separates the equitable jurisdiction of the civil courts from chancery.
The term “equity” is used rather than “chancery” in Rule 1 and elsewhere throughout the rules to make clear that the rules extend to all matters of eq- uitable cognizance properly brought before the County Courts regardless of the scope of the former Chancery Court’s jurisdiction. Abolition of the Chancery Court will work no change in prior practice. The Superior Judges in their capacities as Presiding Judges will act in equity matters with the same flexibility with which they previously acted as chancellors.
Within the first year, the Supreme Court had to invalidate a pair of orders of the court of chancery issued after July 1, 1971, when the court was abolished.59
The 1969
act gave the Court the power to alter stat- ute, when the civil rules provided a differ- ent standard or deadline, “not inconsistent with law.”60
Many chapters and sections
of Title 12, on court procedure, describ- ing legislatively-enacted procedures for the conduct of trials and other judicial pro-
ceedings, were decimated by the change.61 This was a milestone in the separation of powers, and another step in the march to- ward an independent judiciary that began as early as 1786.
The transition to a merged system was not complete with the adoption of the civ- il rules. The constitutional amendments of 1974 further expanded the powers of the Supreme Court to manage its proceedings. The Supreme Court needed to clarify some procedures before the evolution was com- pleted.
The Judicial Crisis of 1983
An assistant judge sat in on a trial involv- ing a dispute over a lease, where a tenant was locked out of the premises, and sought injunctive relief. That didn’t seem like re- versible error to the presiding judge, but the Supreme Court felt differently. This wasn’t the first time the court had ex- pressed concern about the presence of a side judge in a case involving equitable remedies, previously considering it harm- less error. But Soucy v. Soucy Motors, Inc. (1983) was the first, dramatic action by the court to reverse a decision because of the attending judge. With the assistant judge present, the trial court had no jurisdic- tion, despite the presence of the presiding judge, who shifted his responsibility by al- lowing the side judge to be on the bench
with him.62
The Supreme Court sounded
angry when it wrote, after reviewing its pri- or decisions admonishing trial judges for not acting on their directions, “This warn- ing has gone unheeded.” Justice Ernest Gibson’s dissent, joined by Justice Hill, found no cause for alarm and reminded the Court that “Equity courts his- torically have had authority to use advisory juries to hear issues of fact and, upon re- ceipt of their verdicts, either to accept or disregard and override them,” and pointed to V.R.C.P. 39(c) as evidence of its currency. He described how chancellors since 1878 had the discretion to refer a case to a mas- ter for hearing. In that light, wrote Justice Gibson, how could “the mere presence of assistant judges at the trial of an equitable action … constitute error per se.”63
When Vermont adopted the Rules of Civil Procedure in 1971, it sanc- tioned a change in its pleading prac- tice, proclaiming that there would henceforth be “one form of ac- tion.” V.R.C.P. 2. Procedurally, law and equity have been merged. “[S] ince July 1, 1971, equity is no longer a distinct action,” Wells v. Village of Or- leans, Inc., 132 Vt. 216, 219, 315 A.2d 463, 465 (1974), and equitable and le- gal claims are now lumped together in a single pleading. Today’s decision means that whenever a whiff of equi-
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THE VERMONT BAR JOURNAL • FALL 2012
www.vtbar.org
Ruminations: The Vermont Court of Chancery
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