§ 36 — Composition of the court

(a) Composition of the court. 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 (2), one presiding judicial officer and two assistant judges, if available.
(B) The Family Division shall consist of one presiding judicial officer sitting alone in the following proceedings:
(i) all juvenile proceedings filed pursuant to 33 V.S.A. chapters 51, 52, and 53, 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 guardianship services proceedings for persons with developmental disabilities filed pursuant to 18 V.S.A. chapter 215;
(iii) all mental health proceedings filed pursuant to 18 V.S.A. chapters 179, 181, and 185;
(iv) all involuntary sterilization proceedings filed pursuant to 18 V.S.A. chapter 204;
(v) all care for persons with intellectual disabilities proceedings filed pursuant to 18 V.S.A. chapter 206; and
(vi) all proceedings specifically within the jurisdiction of the office of magistrate except child support contempt proceedings held pursuant to a magistrate’s jurisdiction under subdivision 461(a)(1) of this title.
(C) Use of the term “judicial officer” in subdivisions (A) and (B) of this subdivision (2) shall not be construed to expand a judicial officer’s subject-matter jurisdiction or conflict with the authority of the Chief Justice or Chief Superior Judge to make special assignments pursuant to section 22 of this title.
(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 in the submitted stipulation, except that the presiding judge, in the presiding judge’s 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, the assistant judge shall not withdraw from the hearing or trial 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 the assistant judge’s participation, and the assistant judge 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; amended 2013, No. 96 (Adj. Sess.), § 12; 2013, No. 185 (Adj. Sess.), § 1, eff. June 11, 2014; 2021, No. 105 (Adj. Sess.), § 4, eff. July 1, 2022; 2021, No. 147 (Adj. Sess.), § 10, eff. May 31, 2022; 2023, No. 6, § 10, eff. July 1, 2023; 2023, No. 46, § 6, eff. June 5, 2023.)