2011 Vermont Code
Title 04 Judiciary
Chapter 1 SUPREME COURT
§ 36 Composition of the court

§ 36. Composition of the court

(a) Unless otherwise specified by law, when in session, a superior court shall consist of:

(1) For cases in the civil or family division, one presiding superior judge and two assistant judges, if available.

(2)(A) For cases in the family division, except as provided in subdivision (B) of this subdivision, one presiding superior judge and two assistant judges, if available.

(B) The family court shall consist of one presiding superior judge sitting alone in the following proceedings:

(i) All juvenile proceedings filed pursuant to chapters 51, 52, and 53 of Title 33, including proceedings involving "youthful offenders" pursuant to 33 V.S.A. { 5281, whether the matter originated in the criminal or family division of the superior court.

(ii) All protective services for developmentally disabled persons proceedings filed pursuant to chapter 215 of Title 18.

(iii) All mental health proceedings filed pursuant to chapters 179, 181, and 185 of Title 18.

(iv) All involuntary sterilization proceedings filed pursuant to chapter 204 of Title 18.

(v) All care for mentally retarded persons proceedings filed pursuant to chapter 206 of Title 18.

(vi) All proceedings specifically within the jurisdiction of the office of magistrate.

(3) For cases in the criminal division, one superior judge sitting alone.

(4) For cases in the probate division, one probate judge sitting alone.

(5) For cases in the environmental division, one environmental judge sitting alone.

(b) Questions of law and fact. In all proceedings, questions of law shall be decided by the presiding judge. In cases not tried before a jury, questions of fact shall be decided by the court. Mixed questions of law and fact shall be deemed to be questions of law. The presiding judge alone shall decide which are questions of law, questions of fact, and mixed questions of law and fact. Written or oral stipulations of fact submitted by the parties shall establish the facts related therein, except that the presiding judge, in his or her discretion, may order a hearing on any such stipulated fact. Neither the decision of the presiding judge under this subsection nor participation by an assistant judge in a ruling of law shall be grounds for reversal unless a party makes a timely objection and raises the issue on appeal.

(c) Availability of assistant judges. If two assistant judges are not available, the court shall consist of one presiding judge and one assistant judge. In the event that court is being held by the presiding judge and one assistant judge and they do not agree on a decision, a mistrial shall be declared. If neither assistant judge is available, the court shall consist of the presiding judge alone, and the unavailability of an assistant judge shall not constitute reversible error.

(d) Method of determining availability. Before commencing a hearing in any matter in which the court by law may consist of the presiding judge and assistant judges, the assistant judges physically present in the courthouse shall determine whether they are available for the case. If two or more cases are being heard at one time and assistant judges may by law participate in either, each assistant judge may determine in which case he or she will participate.

(e) Duty to complete hearing or trial. After an assistant judge has decided to participate in a hearing or trial, he or she shall not withdraw therefrom except for cause. However, if the assistant judge is not available for a scheduled hearing or trial or becomes unavailable during trial, the matter may continue without his of her participation, and he or she may not return to participate.

(f) Emergency relief. A presiding judge may hear a petition for emergency relief when the court is not sitting and may issue temporary orders as necessary.

(g) Jury trial. In order to preserve the right to trial by jury, when issues sounding in law and in equity are presented in the same action, the supreme court shall provide by rule for trial by jury, when demanded, of issues sounding in law. (Added 2009, No. 154 (Adj. Sess.), { 8.)