* the impact of recording or transmitting on the rights of the parties to a fair hearing;
* whether the private nature of the proceeding outweighs its public value;
* the likelihood that physical, emotional, economic, or proprietary injury may be caused to a party or other person or entity;
* other good cause.
Vt. R. App. P. 35
Reporter's Note-2022
Amendment The amendments to Rule 35, promulgated on May 1, 2019, effective September 3, 2019, and further amended on September 4, 2019, provide guidelines for the possession and use of recording and transmitting devices in the courtroom to accommodate advances in technology. When adopted, the amendments contained a sunset provision and a requirement that the advisory rules committee report back to the court on the whether the amendments should be made permanent. The rules committee has not reported any objection to the current state of the rule or proposed any further revision. Therefore, the 2019 amendments are now made permanent.
Reporter's Notes-2019
Rule 35 is abrogated and replaced consistent with the simultaneous amendment to V.R.C.P. 79.2. See Reporter's Notes to V.R.C.P. 79.2.
Rule 35(b) provides definitions for terms used throughout the rule. These definitions are the same as those provided in V.R.C.P. 79.2(b) except that there is an added definition for "Chief Justice" and no definition for "juror."
Rule 35(c) authorizes any person to possess a device in a courthouse and use it in a nondisruptive manner except that outside a courtroom no person may record or transmit the image or sound of an individual without that individual's express consent.
Rule 35(d) addresses use inside a courtroom. The rule allows registered media, participants, and nonparticipants to possess and use devices in the courtroom, subject to general prohibitions in (d)(1), limits on number and position of devices for video recording and transmission, and the limitations in (e). This is broader than the use allowed in the superior court based on the fact that there are no witnesses or juries present at the Supreme Court.
Rule 35(e) sets limits on recording and transmission. Under (e)(1), there are limits on video and audio recording to ensure confidentiality of communications between members of the Court, between co-counsel, and between attorney and client. The Court is authorized in (e)(2) to permit, prohibit, terminate, limit, or postpone recording or transmitting of a proceeding based on several factors.
Rule 35 was amended effective September 3, 2019. That amendment added a restriction on use of devices in a courthouse by prohibiting any person from recording or transmitting the image or sound of an individual outside a courtroom without express consent. The prohibition was designed to prevent individuals from using recording as a harassment tool against others attending obligatory court hearings. The emergency amendment eliminates the restriction on recording and transmitting in the courthouse and allows use in the courthouse that is nondisruptive. Disruptive uses include using a device to harass or intimidate another person. There is no distinction between media and nonmedia in the appellate rule, unlike the rule applicable in the superior court, because, among other reasons, there are no witnesses or jurors at the Supreme Court.