Vt. R. App. P. 5

As amended through April 1, 2024

Rule 5 - Appeals Before Final Judgment

(a)Appeal on Report by Agreement.

(1) Before entry of final judgment, the superior court may report the action to the Supreme Court, if all the parties appearing agree and:

(A) the court concludes that a question of law raised is raised of sufficient importance or doubt to justify reporting; and

(B) in a civil action, the Supreme Court's disposition would finally dispose of the action in at least one alternative; or

(C) in a criminal action, the Supreme Court's decision would result in a final judgment for the defendant in one alternative.

(2) The order of report must:

(A) contain a statement of the question(s) of law involved;

(B) set forth the parties' agreement regarding the payment of any required entry fee for the appeal; and

(C) be signed by the superior court judge and entered on the docket.

(3) The superior court clerk must transmit the report to the Supreme Court clerk. Upon receipt, the Supreme Court clerk will open the appeal. The Supreme Court may dismiss an appeal that does not meet the requirements of (a)(1). If the Supreme Court accepts the appeal, the appeal will be considered and determined in the Supreme Court as provided by these rules for other appeals, with the plaintiff in a civil action or the State in a criminal action treated as the appellant. Any required entry fee must be paid to the Supreme Court clerk by the party or parties designated in the order of report within 14 days after entry of the order accepting the appeal.

(4) If the decision on a report in a criminal action is in favor of the State, the Supreme Court may not order entry of judgment of conviction but must remand the action for further proceedings consistent with its decision.

(b)Appeal of Interlocutory Order by Permission.

(1)Motion for Permission To Appeal in a Civil Action. On any party's motion in a civil action, the superior court must permit an appeal from an interlocutory order or ruling if the court finds that:

(A) the order or ruling involves a controlling question of law about which there exists substantial ground for difference of opinion; and

(B) an immediate appeal may materially advance the termination of the litigation.

(2)Motion for Permission To Appeal by the Defendant in a Criminal Action. On the defendant's motion in a criminal action, the trial court must permit an appeal if the trial court makes the findings specified in Rule 5(b)(1)(A) and (B).

(3)Motion for Permission To Appeal by the State in a Misdemeanor Criminal Action. On the State's motion in a misdemeanor action, the trial court must allow the State to appeal from a pretrial ruling on a question of law if the trial court makes the findings specified in Rule 5(b)(1)(A) and (B).

(4)Motion for Permission To Appeal by the State in a Felony Criminal Action.

(A) On the State's motion in a felony action, the court must allow the State to take an appeal from a pretrial ruling:

(i) granting a motion to suppress evidence;

(ii) granting a motion to have a confession declared inadmissible; or

(iii) granting or refusing other relief where the effect is to seriously impede (but not completely foreclose) continuation of the prosecution.

(B) The prosecuting attorney must certify that:

(i) the appeal is not taken for the purpose of delay; and

(ii) any evidence suppressed or declared inadmissible is substantial proof of a fact material to the proceeding or the relief to be sought on appeal is necessary to avoid seriously impeding the proceeding.

(5)Timing of Motion and Content of Order.

(A) The motion must be filed within 14 days after entry of the order or ruling appealed from, but the State's motion in a criminal action must be filed within 7 business days after the decision, judgment, or order appealed from.

(B) The superior court's order must state the grounds on which the appeal has been permitted or denied.

(C) For purposes of this rule, a pretrial ruling in a case tried by jury is a ruling made before the jury is impaneled.

(6)Permission To Appeal Granted.

(A) The superior court clerk will transmit the order permitting the appeal to the Supreme Court clerk.

(B) Upon receipt of the order permitting appeal, the Supreme Court clerk will open the appeal. If the Supreme Court determines that the relevant standard is met and accepts the appeal, it will be considered and determined in the Supreme Court as provided by these rules for other appeals. Any required entry fee must be paid to the Supreme Court clerk by the appellant within 14 days after entry of the order accepting the appeal.

(7)Permission To Appeal Denied.

(A) If the superior court denies the request for permission to appeal, the moving party may, within 14 days after entry of the order of denial, file a motion for permission to appeal in the Supreme Court. The motion and supporting documents must include:

(i) the question of law asserted to be controlling;

(ii) the facts necessary to understand the question;

(iii) the reasons why an interlocutory appeal should be permitted.

(iv) the written order, if any, from which an appeal is sought; and

(v) the superior court order denying permission to appeal.

(B) The moving party must serve the motion and supporting documents on all other parties.

(C) Within 14 days after service of the motion, any party may file and serve a response to the motion.

(D) The matter will be determined on the motion and response without oral argument unless the Court orders otherwise. If the motion for permission to appeal is granted, the moving party must pay any required entry fee to the Supreme Court clerk within 14 days of entry of the order accepting the appeal.

(8)Dismissal in the Supreme Court.

(A) On its own or the appellee's motion, the Supreme Court may at any time dismiss the appeal as improvidently granted.

(B) The appellee's motion must contain:

(i) a statement of the facts necessary to understand the question of law found controlling by the superior court; and

(ii) a statement of reasons why an interlocutory appeal should not have been permitted.

(C) The Supreme Court may consider the motion immediately or may wait until the time set for consideration of the appeal.

Vt. R. App. P. 5

Amended March 2, 1973, eff. 10/1/1973; 5/21/1973, eff. 10/1/1973; Supreme Court order 4/9/1974; 6/30/1982, eff. 7/1/1982; 11/30/1982, eff. 2/1/1983; 1/9/1985, eff. 3/15/1985; 12/9/1988, eff. 3/1/1989; 1/20/1992, eff. 3/2/1992; 10/11/2006, eff. 12/11/2006; 6/11/2013, eff. 9/3/2013; amended Sept. 20, 2017, eff. 1/1/2018; amended Dec. 10, 2019, eff. 3/2/2020; amended July 13, 2021, eff. 8/17/2021.

Reporter's Notes-2021 Amendment

Rule 5 is revised to update its requirements consistent with current practice and the implementation of the electronic case management system and electronic filing.

Rule 5(a)(2) details the contents of the order of report, which may be prepared by the parties for the superior court's approval or prepared by the court. Subparagraph (2)(B) is added to require the parties to include an agreement regarding payment of any required entry fee. Former subparagraph (2)(B) is renumbered as (2)(C) and specifies that the order of report must be entered on the superior court docket. Former subparagraph (2)(C) is deleted and its contents are included in revised (a)(3).

Rule 5(a)(3) is amended to clarify the process for appeals by report. The superior court transmits the report to the Supreme Court, and the Supreme Court opens the appeal. The entry fee must be paid within 14 days of when the Supreme Court accepts the appeal.

Rule 5(b)(6)(A) provides that the superior court must transmit the appeal to the Supreme Court clerk. Under Rule 5(b)(6)(B), the Supreme Court clerk opens the appeal, the Court determines whether the standard for interlocutory appeal is met, and the entry fee must be paid within 14 days of an order accepting the appeal. Rule 5(b)(7) is amended to clarify the contents of the motion for permission to appeal that must be filed in the Supreme Court. Rule 5(b)(7)(C) is amended to clarify that any party can file a response to a motion for interlocutory appeal. Rule 5(b)(7)(D) clarifies that the fee is due if the Supreme Court accepts the appeal.

For all appeals under this rule, the fee is due once the Supreme Court accepts the appeal. Electronic filers can pay the fee through the electronic filing system. Efilers and nonelectronic filers may also mail or deliver a check to the Supreme Court. If the Supreme Court does not accept the appeal, no fee is required. If accepted, a case follows the rules for other appeals. For example, the docketing statement and transcript order will be filed after the appeal is accepted.

Reporter's Notes-2020 Amendment

The term "docket entries" in Rule 5(b)(6)(A) is replaced with the more general term "record of actions" in anticipation of the new case management system. See Reporter's Notes to Rule 3.

Reporter's Notes-2018 Amendment

Rules 5(b)(5)(A) and 5(b)(7)(A) and (C) are amended to conform their 5-day and 10-day time periods to the simultaneous amendment of V.R.C.P. 6(a) and for internal consistency with appellate motion practice.

Rule 5(b)(5)(A) is amended to clarify that the State must file an appeal within 7 business days. This conforms to the concurrent amendment to 13 V.S.A. § 7403(e).

4. That Rules 5.1(a)(2) and 5.1(b)(2) and (4) of the Vermont Rules of Appellate Procedure be amended to read as follows (new matter underlined; deleted matter struck through):