Friday, May 22, 2009

VBA Organized County Bar Focus Groups

As you know I have, at the request of the VBA Board of Managers, been asking members of the Commission on Judicial Operation to meet with and get input from the Bar. The list below contains those meetings that are confirmed as of this morning. We are also sending out a five question survey created by the National Center for State Courts to stimulate ideas before the focus groups meet.

Thursday, June 11: Chittenden 1:30 to 3:00- Marriott Courtyard

Friday, June 12: Franklin, Grand Isle, Lamoille 12:00 to 1:30- Franklin Superior Court

Friday, June 19: VBA Board 10:00-12:00- Red Clover Inn, Killington

Monday, June 22: Addison 12:00 to 1:30- Mahady Courthouse

Tuesday, June 23: Bennington time & place TBD

Wednesday, June 24: Washington-Orange 12:00 to 2:00 Lucia’s Rest.

Friday, June 26: Rutland 11:00 to 1:00- Superior Court

Friday, July 10: Windham 10:00 to 12:00 place TBD

Wednesday, May 20, 2009

Wednesday May 20, 2009

I’m back in the VBA office today after attending our third Solo and Small Firm Conference at the Basin Harbor Resort. I want to thank all 117 of you that attended. Many of you have attended all three of our biennial conferences that we began offering in 2005. For those of you that have yet to try out this event, you’ll have to wait until May 19 and 20, 2011!
Getting your CLE hours in such a beautiful relaxing environment is so different that other VBA meetings or CLEs. Getting in a round of golf or a bike ride doesn’t hurt either, I guess. Perhaps the best aspect of this meeting is the overnight part of it. I enjoy seeing people meet for the first time, have a meal together, relax out in the sun (even if it’s cool!), and make or renew friendships. The informal sharing of ideas and information, especially among solo practitioners who may not always have that chance, is a big plus.
In 2005, 106 of you came down to Basin Harbor for our inaugural conference. In 2007 we did one better, hosting 107 attendees. I’m liking this upward trend. Frankly, where else would you be able to get 13 hours of CLE, which included 2 hours in Professionalism and 2 hours in Ethics, meals and overnight lodging for about $400? Without taking anything away from the quality of what our commercial competitors offer, they can’t compete with that. That’s what your VBA membership is doing for you. And we’ll continue to do that. We’re of course open to hearing from you on this or any other issue. Let us know how your association can and should be working for you.

Wednesday, May 13, 2009

The Vermont Trust Code Study Committee

If you’ve been reading this blawg you certainly know that the legislature did pass S. 86 and it will be signed into law tomorrow, May 14th. There were 15 members of the Study Committee made up of lawyers and trust officers. I’d like to acknowledge the huge effort that went into this work and thank our members who participated. In alphabetical order, here are the members of the Bar:
Hon. George Belcher
Paul Hanlon, Secretary of the Committee
Mark Langan, Chair of the Committee
John Newman
Robert Pratt
Catherine Richmond
Steven Schindler
Mark Melendy
Julie Minor
Maryellen Sullivan
Mark Langan spent days in Montpelier testifying in both Senate and House committees. Paul Hanlon, unfortunately located down the street from the Statehouse, found himself on call for about a three week period. I’ve lost track on how many times he was called up to testify, meet with a representative or senator, review drafts with legislative counsel, etc.
We’re planning a CLE at the request of this Study Committee and the Probate and Trust Law Section for Tuesday June 2nd, at the Capitol Plaza in Montpelier. Although we’re still working out the details, I expect it to be a day long event with the speakers drawn from the Study Committee. Check the VBA website for details in the next few days.

Friday, May 8, 2009

For Real Estate and Municipal Practitioners

The following language is from H. 446, an act relating to renewable energy and energy efficiency. The assessment contemplated in a clean energy assessment district is something title examiners and municipal attorneys will need to be prepared to deal with.

Subchapter 2. Clean Energy Assessments
(a) The legislative body of a town, city, or incorporated village may submit
to the voters of the municipality the question of whether to designate the
municipality as a clean energy assessment district. In a clean energy
assessment district, only those property owners who have entered into written
agreements with the municipality under section 3262 of this title would be
subject to a special assessment, as set forth in section 3255 of this title.
(b) Upon a vote of approval by a majority of the qualified voters of the
municipality voting at an annual or special meeting duly warned for that
purpose, the municipality may incur indebtedness for or otherwise finance
projects relating to renewable energy, as defined in subdivision 8002(2) of
Title 30, or to eligible projects relating to energy efficiency as defined by
section 3267 of this title, undertaken by owners of real property within the
boundaries of the town, city, or incorporated village.
(a) Upon an affirmative vote made pursuant to section 3261 of this title and
the performance of an energy savings analysis pursuant to subsection (b) of
this section, an owner of real property within the boundaries of a clean energy
assessment district may enter into a written agreement with the municipality
that shall constitute the owner’s consent to be subject to a special assessment,
as set forth in section 3255 of this title. A participating municipality shall
follow underwriting criteria, consistent with responsible underwriting and
credit standards as established by the department of banking, insurance,
securities, and health care administration, and shall establish other qualifying
criteria to provide an adequate level of assurance that property owners will
have the ability to meet assessment payment obligations. A participating
municipality shall refuse to enter into a written agreement with a property
owner who fails to meet the underwriting or other qualifying criteria.
(b) Prior to entering into a written agreement, a property owner shall have
an analysis performed to quantify the project costs and energy savings and
estimated carbon impacts of the proposed energy improvements, including an
annual cash-flow analysis. This analysis shall be conducted by the entities
appointed as energy efficiency utilities under subdivision 209(d)(2) of Title 30,
or conducted by another entity deemed qualified by the participating
municipality. All analyses shall be reviewed and approved by the entities
appointed as energy efficiency utilities.
(c) A written agreement shall provide that:
(1) the length of time allowed for the property owner to repay the
assessment shall not exceed the life expectancy of the project. In instances
where multiple projects have been installed, the length of time shall not exceed
the average lifetime of all projects, weighted by cost. Lifetimes of projects
shall be determined by the entities appointed as energy efficiency utilities
under subdivision 209(d)(2) of Title 30 or another qualified technical entity
designated by a participating municipality;
(2) At the time of a transfer of property ownership excepting
foreclosure, the past due balances of any special assessment under this
subchapter shall be due for payment, but future payments shall continue as a
lien on the property.
(3) A participating municipality shall disclose to participating property
owners the risks associated with participating in the program, including risks
related to the failure of participating property owners to make payments and
the risk of foreclosure.
(d) A written agreement and the analysis performed pursuant to subsection
(b) of this section shall be filed with the clerk of the municipality for recording
in the land records of the municipality and shall be disclosed to potential
buyers prior to transfer of property of ownership. Personal financial
information provided to a municipality by a participating property owner or
potential participating property owner shall not be subject to disclosure as set
forth in subdivision 317(c)(7) of Title 1.
(e) At least 30 days prior to entering into a written agreement, the property
owner shall provide to the holders of any existing mortgages on the property
notice of his or her intent to enter into the written agreement.
(f) The total amount of assessments under this subchapter shall not exceed
more than 15 percent of the assessed value of the property. The combined
amount of the assessment plus any outstanding mortgage obligations for the
property shall not exceed 90 percent of the assessed value of that property.
(g) In the case of an agreement with the resident owner of a dwelling, as
defined in section 103(v) of the federal Truth in Lending Act:
(1) the assessments to be repaid under the agreement, when calculated
as the repayment of a loan, shall not violate chapter 4 of Title 9;
(2) the maximum length of time for the owner to repay the loan shall not
exceed 20 years; and
(3) the maximum amount to be repaid for the project shall not exceed
$30,000.00 or 15 percent of the assessed value of the property, whichever is
The owners of real property who have entered into written agreements with
the municipality under section 3262 of this title shall be obligated to cover the
costs of operating the district. A municipality may use other available funds to
operate the district.
A property owner who has entered into a written agreement with the
municipality under section 3262 of this title may enter into a private agreement
for the installation or construction of a project relating to renewable energy, as
defined in subdivision 8002(2) of Title 30, or relating to energy efficiency as
defined by section 3267 of this title.
(a) A municipality that incurs indebtedness for or otherwise finances
projects under this subchapter shall not be liable for the failure of performance
of a project.
(b) A municipality that incurs indebtedness for bonding under this
subchapter shall pledge the full faith and credit of the municipality.
Two or more municipalities, by resolution of their respective legislative
bodies or boards, may establish and enter into agreements for incurring
indebtedness or otherwise financing projects under this subchapter.
Those entities appointed as energy efficiency utilities under subsection
209(d) of Title 30 shall develop a list of eligible energy efficiency projects and
shall make the list available to the public on or before July 1 of each year.
(a) A municipality shall release a participating property owner of the lien
on the property against which the assessment under this subchapter is made
(1) Full payment of the value of the assessment; or
(2) Demand from a party who has filed an action for foreclosure on a
participating property.
(b) If a municipality releases a participating property owner of a lien upon
demand from a party who has filed an action for foreclosure and the
participating property owner redeems the property, the municipality shall
reinstate the lien on the property against which the assessment under this
subchapter is made.
(c) Notice of the release or reinstatement of the lien shall be filed with the
clerk of the municipality for recording in the land records of the municipality.
(a) A participating municipality may create a reserve fund for use in the
event of a foreclosure upon an assessed property. The reserve fund shall be
funded by participating property owners at a level sufficient to provide for the
payment of any past due balances on assessments under this subchapter and
any remaining principal balances on those assessments in the event of a
foreclosure upon a participating property.
(b) The reserve fund shall be capitalized in accordance with standards and
procedures approved by the commissioner of banking, insurance, securities,
and health care administration to cover expected foreclosures based on good
lending practice experience.
(c) The municipality shall disclose in advance to each interested property
owner the amount of that property owner’s required payment into the reserve
fund. Once disclosed, the amount of the reserve fund payment shall not
change over the life of the assessment.
Sec. 15k. 24 V.S.A. § 4592 is amended to read:
The bank, in addition to any other powers granted in this chapter, has the
following powers:
* * *
(8) To the extent permitted under its contracts with the holders of bonds
or notes of the bank, to consent to any modification of the rate of interest, time
and payment of any installment of principal or interest, security or any other
term of bond or note, contract or agreement of any kind to which the bank is a
party; and
(9) To issue its bonds or notes which are secured by neither the reserve
fund nor the revenue bond reserve fund, but which may be secured by such
other funds and accounts as may be authorized by the bank from time to time;
(10) To issue bonds, other forms of indebtedness, or other financing
obligations for projects relating to renewable energy, as defined in subdivision
8002(2) of Title 30, or to energy efficiency projects under subchapter 2 of
chapter 87 of this title. Bonds shall be supported by both the general
obligation and the assessment payment revenues of the participating

Municipal filing fees are increasing on July 1, 2009 from the current $8 per page to $10. the following is from the executive branch fee bill, H. 136:

* * * Municipal Clerks * * *
Sec. 21 . 32 V.S.A. § 1671(a) is amended to read:
(a) For the purposes of this section a “page” is defined as a single side of a
leaf of paper on which is printed, written, or otherwise placed information to
be recorded or filed. The maximum covered area on a page shall be 71/2
inches by 14 inches. All letters shall be at least one-sixteenth inch in height or
in at least eight point type. Unless otherwise provided by law, the fees to town
clerks shall be as follows:
(1) For recording a trust mortgage deed as provided in section 1155 of
Title 24, $10.00 per page;
(2) For filing or recording a copy of a complaint to foreclose a mortgage
as provided in subsection 4523(b) of Title 12, $10.00 per page;
* * *
(6) Notwithstanding any other provision of law to the contrary, for the
recording or filing, or both, of any document that is to become a matter of
public record in the town clerk’s office, or for any certified copy of such
document, a fee of $10.00 per page shall be charged; except that for the
recording or filing, or both, of a property transfer return, a fee of $10.00
shall be charged;
* * *
(8) For survey plats filed in accordance with chapter 17 of Title 27, a fee
of $6.00 $15.00 per 11 inch by 17 inch sheet, $15.00 per 18 inch by 24
inch sheet, and $15.00 per 24 inch by 36 inch sheet shall be charged.
Sec. 22. 32 V.S.A. § 9606(d) is amended to read:
(d) For receiving a property transfer return and tax payment, if any, under
this chapter, there shall be paid to the town clerk at the time of filing a fee of

Friday Morning Update

Last night the Senate adopted the FY 2010 budget on its part. Although it appears on the House Notice Calendar today, it is likely that it will not be debated until Saturday. In any event, here is some language that affects the judicial branch and affects those of you that do any criminal work. I’m just copying this narrative language from H.441:

Sec. E.204 Judiciary (Sec. B.204, #2120000000)
(a) For compensation paid from July 1, 2009 to June 30, 2010, the supreme
court is authorized to reduce by up to five percent salaries established by
statute that are paid by the judicial department appropriation and to reduce by
up to five percent the hourly rates of nonbargaining-unit employees earning in
excess of $15.00 per hour.
Sec. E.204.1 Judiciary (Sec. B.204, #2120000000)
4 V. S. A. § 25 is amended to read:
(a) The supreme court is authorized to declare up to 12 unpaid judicial
branch furlough days in a fiscal year and on those days may close courts in
the state. For purposes of implementing a furlough day, the supreme court is
authorized to reduce on a daily or hourly basis all salaries established by
32 V.S.A. §§ 1003(c), 1141, 1142, and 1181, and all other
salaries paid by the judicial branch. Furlough days declared under this section
shall have the same effect as holidays under 1 V.S.A. § 371 for the purpose of
counting time under the rules of court procedure and the Vermont Statutes
* * *
(a) The general assembly acknowledges that the commission on judicial
operation was established by the Vermont supreme court in response to Act
192 of 2008, in which the general assembly asked the court to convene a
commission to examine the efficient and effective delivery of judicial services
and to address the allocation of resources within the judiciary. The
commission is now engaged in this work and intends to report its
recommendations for resource reallocation and improvement of service delivery
to the general assembly prior to January 1, 2010. The general
assembly finds that it would be disruptive of the commission’s ongoing
processes to make substantial structural changes to the judiciary in fiscal year
2010, and that the interests of justice would be best served by deferring any
such changes until after the commission’s report is received and considered.
(b) The general assembly expects the work of the commission on judicial
operations to make recommendations which will both preserve the ability of
the judiciary to meet its constitutional responsibilities as a separate branch of
government and to find savings of $1,000,000 in the fiscal year 2011 budget.
(c) Notwithstanding any other provision of law, the judiciary budget shall
not be subject to any rescissions during fiscal year 2010.
(a) The court administrator, in consultation with the executive director of
the department of state’s attorneys and sheriffs, the defender general, and the
commissioner of the department of corrections, shall develop procedures for
regional arraignments and for an incarcerated defendant’s appearance by video
or telephone as permitted under rules 5 and 43 of the Vermont rules of criminal
procedure and Vermont Supreme Court administrative order 38. The
procedures shall be designed to reduce prisoner transportation costs to the
greatest extent possible while preserving the defendant’s right to a meaningful
court appearance.

The compensation and Commission language is new. The court now will have the authority to do the 5% salary reduction, without requiring agreement on the part of employees. Also, the court has been restricted in its furlough days (court closing days) because it had to close all courts on the same day. This is loosened up a bit with the use of “may”.
The important language though is contained in the section dealing with the Commission on Judicial Operation. The legislature validates the work of the Commission in sub (a); sets out an expectation in sub (b); and, finally, insulates the judiciary from any rescissions in FY 2010. This is of course a good result for the court even as it put more pressure on the Commission itself. Finally, the last section sets in motion a process to begin regional arraignments in order to reduce transportation costs while preserving a defendant’s right to a meaningful court appearance.
For those of you that followed the progress of H. 11 and then S. 26, and are aware of the amendment about an assistant judge simultaneously holding the office of probate judge, that language is not in the bill as passed. Instead this provision replaced it:
Sec. 13. STUDY
The committee on judicial operation created by Sec. 5.101.1 of No. 192 of
the Acts of the 2007 Adj. Sess. (2008) shall, in addition to its other duties,
study the issue of allowing a single person to simultaneously hold the offices
of assistant judge and probate judge. The study shall include an analysis of
whether simultaneously holding both offices by a single person is
constitutional as well as an analysis of its impact on the administration of

Thursday, May 7, 2009

Thursday evening

Well, S. 26 is done; the Senate adopted the report of the conference committee without controversy. That completes our work on this bill. It's on its way to the governor for signature. Remember it takes effect on passage so stay tuned for news of the date of signing.

Thursday afternoon update

The conference committee report on S. 26 has been adopted by the House. It was messaged to the Senate which convenes at 4 PM. The Senate could suspend its rules and take the bill up later today. I'll let you know if that happens. The budget and tax bills are done and are being signed this afternoon. Again, I have not seen the language but I've been assured that Vermont Legal Aid will see a $60K increase. The House has yet to act on the Senate's proposal of amendment to H.136, the executive branch fee bill. Section 21 of the Senate draft increases town clerk filing fees from $8 to $10 per page. We'll wait for the final version of this bill. I'll report on how it comes out.

May 7

Our last bill is out of conference committee and is on the House Notice Calendar. That bill, S. 26, started life as a “son of sam” bill but now contains much, much more. It is now the home of H. 11, the disposition of property upon death bill that was H.203 in 2008! So, I expect the house will suspend the rules and bring the conference report up for immediate action sometime today. The house has to act first as it’s a senate bill. Then when the house adopts the report of the committee of conference, I expect it to message the bill to the senate, where I hope the same steps will be taken. All that will be left if the governor’s signature. Keep an eye on sections 4 and 5 of the bill; those are the chapters dealing with descent and Survivors’ Rights. Those sections take effect upon passage- meaning the day the governor signs the bill. BUT, section 5 will only apply to persons dying on or after that effective date. We’ll let you know when that date is.
On the budget front, legislators, as you know, are moving ahead without an agreement with the administration. A veto seems likely which will result in a special session in June to do this again. Of the justice items I have been following there is this news. First, the senate conferees have put on the table a $60K increase in funding to Vermont Legal Aid. This is the same amount that VLA lost in the second round of rescissions in December. It had previously lost $25K in August. When I left the conference committee meeting yesterday afternoon, the house had yet to agree to the senate’s proposal. I know the house conferees want to agree but I just can’t say if it happened. The committee did meet again last night but I was not in the building. I’ll try to find out this morning.
Second, the house conferees offered language essentially insulating the judiciary from any further administration rescission in FY 2010. The administration doesn’t like this of course. At the afternoon meeting, the senators responded by accepting the house proposal. This is tied to the judiciary’s promise of finding $1 million in savings in FY 2011. But it guarantees that the work of the Commission on Judicial Operation can continue its work without being undermined by steps taken before it can file its report.
More later; thanks for reading.

Tuesday, May 5, 2009

Vermont Trust Code- S. 86

The Senate just voted to concur with the House proposals of amendment to S. 86. That completes work on the bill as the bill lacks only the governor's signature before it can go into effect on July 1,2009.

One down; one to go

Late yesterday the Senate Finance Committee, after hearing from Paul Hanlon, agreed to concur with the house amendments to S. 86, the trust bill. It's on for action this morning when the senate convenes at 8:15. I expect quick action and then the bill is off to the governor for review and signing. I'll update you later.
On the wills and estates bill, which I've been referring to as H. 11, we need to follow the progress of S. 26. The house incorporated H. 11 into S. 26; so H. 11 as a bill is gone. For those of you following its progress since January turn your attention to the senate bill which contains the exact same language. The house conferees are Willem Jewett, Peg Flory and Eldred French. The senate members are Kevin Mullin, Dick Sears, and John Campbell. As it's a senate bill, the conference committee is chaired by the house, in this case Willem, as he is the first conferee named by the speaker.
When I spoke with Willem yesterday he was anxious to get a quick meeting and resolve the differences between the two versions. Remember that the matters in dispute DO NOT relate to the original H. 11 language; both chambers fully support that bill's contents. The problem lies in senate-added language dealing with assitant judges. I'll report when I have more information as to the progress of this conference committee.

Monday, May 4, 2009

Last week of the session?

Well, it’s supposed to be the last week of the session. We’re still waiting on H. 11, the wills and estates bill and S. 86, the Vermont Trust Code. I expect that the house bill will take all week to resolve because of the language the senate added about assistant judges. I know it’s been a few weeks but I’m still trying to understand how that amendment was “germane” to the bill. A conference committee has to work this out.
The senate bill, on the other hand, needs only a few minutes in the Senate Finance Committee to explain the house amendments. But finding those few minutes is getting harder and harder as we get closer to adjournment.
It appears that the appropriations conferees are close to recommending a $16 million reduction in spending. But remember that the projected deficit is $34 million; so there’s still some way to go. Even the judiciary is thinking ahead to another cut and seeking legislative authority to adjust its spending if that happens.
The governor recommended a $1 million reduction in the court’s 2010 appropriation. The budget as passed reduced it by $550,000. At that funding level the courts would no longer need to close one day a month. Now the supreme court is concerned that the additional $450,000 may be in jeopardy. All of this is happening in the face of the work being done by the Vermont Commission on Judicial Operation which is due to report back to the legislature in January.
The legislature is meeting today, Monday, and I’ll be there most of the day and will report back as soon as I have an update.