Friday, April 29, 2011

This morning Judges Gerety and Tomasi appeared before the Senate Judiciary Committee for their confirmation hearings. Judge Mello is expected to visit with the Committee next week. The hearings went quickly and were without any controversy. Due to the press of Senate business as the session winds down, neither interview lasted for more than 15 minutes and both were conducted before two or three of the five committee members. I’m sure the confirmation votes will be unanimous once the other members are briefed on the conversations. Each judge was asked a different set of questions though. Judge Gerety was asked about sitting in the family division and about consistency in sentencing. Judge Tomasi was asked about what becoming a judge requires one to ‘give up”. He was also asked about bias in favor of the state because of his tenure as an assistant attorney general. He assured the committee that is not an issue.
I mentioned S. 101 in yesterday’s post. I can report that the House Judiciary Committee voted the bill out with a small amendment designed to remove any doubt in a paragraph dealing with the court’s authority in waiving part of a surcharge. It will pass the House and I’m confident the Senate will concur.
Thanks for reading. Have a great spring weekend. The session will resume on Monday afternoon in what we all hope is the last week.

Thursday, April 28, 2011


The Senate a few minutes ago adopted the House proposal of amendment on the uniform child custody jurisdiction and enforcement act. The bill will shortly go to the governor for signature meaning Vermont will join the other 48 states that have already adopted the UCCJEA. That leaves only Massachusetts.
I’ve waited long enough to update this blog; so here’s where I think we are as of now. I really hoped to have some final actions on bills to report but, as often happens, we’re still going back and forth between chambers. For example, the House amended H. 88, the UCCJEA as I wrote last week but it’s still on the Senate calendar. I’m hoping to hear the Senate concur this afternoon. Also, in late March the Senate passed S. 101, the child support bill that reduces the surcharge from 12 to 6% and creates a working group to examine child support enforcement. The bill went to House Judiciary where everyone, including me, forgot about it. I remembered it yesterday; brought it to the attention of House Judiciary; the court administrator; the administrative judge; and OCS. Everyone supports it and this morning, at my request, the committee reviewed it and I hope it will be out later today.
Two bills of interest to members of the Property Law Section are S.98, the licensed lender bill and H. 272, the private roads maintenance bill. Again, I had hoped to report on passage of both but I can’t. S.98, which came to the House well after the crossover date remains in the House Rules Committee. H. 272 is still in the House Commerce Committee. Enactment of either this year is now doubtful.
Yesterday the Senate Finance Committee agreed to add VBA property lawyer to the committee that will study the energy rating/audit issue and whether it should be mandated and disclosed as part of a sale. This was the thrust of H. 57 which remains in the House General Committee. The study committee language will appear in H. 56, the energy bill. Finally, H.21, the Uniform Limited Cooperative Associations (now “mutual benefit enterprises”) remains in the Senate Finance Committee for consideration in 2012.
Sorry I don’t have better or more complete news right now. Thanks for reading.

Wednesday, April 20, 2011

It’s always difficult to predict how the last weeks and days of a legislative session will go. For example, yesterday the Senate Institutions and the Senate Transportation Committees released their versions of the capital and transportation bills respectively. Normally each would then go to the Appropriations Committee for review and emerge days or weeks later. But yesterday, in a flurry of rules suspensions, the bills were taken up before they appeared on the calendar; were committed to Appropriations; reviewed and came back to the floor; and finally were read the second time, amended and are on track for passage today. Also, the Senate Finance Committee released the health care bill which was also committed to Appropriations. I don’t know if it will move as fast but as soon as it is out, along with the budget bill and the tax bill, the Senate will vote and return them to the House. The House will refuse to concur and all five bills will then go to committees of conference to work out the final versions. If all of that can happen by this Friday, adjournment can and should occur within two weeks, most likely Saturday May 7th. That’s not a prediction though!
Clearly, a lot is going on in the background and in informal conversations. The VBA still has some bills of interest either in transit between chambers or on the calendar. Yesterday, the Senate gave final approval to H. 88, the UCCJEA. A minor amendment was made in the Senate which the House will now react to. Our position is to move the amendment to another section; if the House chooses not to, we can live with the current version and perhaps revisit the bill next year. Passage is the priority this year.
The Senate may take up as early as this morning S. 98, the amendment to the licensed lender law. The amendment would ease the restriction on seller financing of commercial property and expand the definition immediate family members. But another broader fix, meaning seller financing of residential property not within current law, will have to be done at the federal level. See my post of last Friday; our congressional delegation is willing to help if we can get them some suggested language.
H. 56, the energy act has been amended in the Senate Natural Resources and Energy Committee to include a working study group to address the issues raised during testimony on H. 57, the energy audit bill. As you recall, four members of our Property Law Section testified in opposition to what was contained in H.57. Two weeks ago I had a conversation with a member of House General which has H. 57 and briefed him on how the VBA reacted to the Bianchi decision. Many of you may recall that we put together a committee that included all the parties with an interest in that case and worked out a draft bill for introduction the next January. I suggested that the same approach be used for the subject matter of H. 57. So that is what was added to H. 56. The only problem is that the VBA was left of the working group!. I brought that to the attention of Senate Natural and was asked to draft an amendment and present it today. I don’t think anyone opposes our participation. I know the Chair of the House Committee on General Affairs insists we be included.
The House Commerce Committee still has possession of H. 272, the private roads maintenance bill while it has seen passage of H.21, the limited cooperative associations act. That now sits in a Senate Committee for action in 2012. There are a number of other items of interest to the VBA that are in the pipeline. H. 79, the adult guardianship and protective proceedings act is in Senate Judiciary. The foreclosure “clean up” bill (H. 403) and the uniform principal and income act (H 327) are both in House Judiciary. We are trying to get some time during the final two weeks when conference committees are hard at work to brief the judiciary committee with an overview of both bills if we can. That will set the table for the next session. We also expect to see introduction of a rewrite of our nonprofit corporation statute next January. Again, we hope to brief the Commerce Committee before adjournment. Finally, the uniform collateral consequences of conviction act (S.38) remains on the senate calendar under the status of “ordered to lie”. In a sense it’s been tabled but can be called up by any senator with one day’s notice.
I’ll update you soon; thanks for reading.

Friday, April 15, 2011

I was away all week at ABA Day in Washington with VBA President Teri Corsones; President Elect Jim Carroll; ABA State Delegate Fritz Langrock; and VBA Delegate to the ABA Rich Cassidy. We did our annual visits with members of our congressional delegation presenting issues of concern to the ABA and to the VBA. The usual top issue for the ABA is funding of the Legal Services Corporation. This year they a request for support on a new bill calling for tax intercepts of unpaid judicial fines. The VBA presented our congressmen the issues our property bar is facing under the licensed lender law and the federal SAFE Act. They were unfamiliar with the issue but all three expressed concerns about its effect on Vermonters. We were invited by each to submit our drafts of amendments to either the bill or the proposed HUD regulations, which we’re told will be out in early May to address the issue. I’ve shared this with Property Law Section Chair Hall Miller and would invite any of you with suggestions to forward them to me or to Hal.
The House has passed the Uniform Limited Cooperative Associations Act and the Senate is due to take up the UCCJEA today. The private roads bill is still in Committee with some more testimony due early next week. I’ll update this blog next week on things that I need to investigate further before reporting. I heard this morning that the Senate morning committees which includes Judiciary will stop meeting after next Tuesday. The “big” bills are due to hit the Senate floor next week which will limit all committee time: appropriations; taxes; capital construction; transportation; and health care.
Thanks for reading; sorry for the delay in posting.

Thursday, April 7, 2011

Yesterday afternoon the Senate finally chose its three members of the Judicial Nominating Board. They are Senators Ashe, Campbell, and Westman. Now that membership is complete, the Board can hold its organizational meeting and the court administrator can send out the notice of vacancy for the seat presently held by Judge Keller.
The Senate advanced a couple of bills yesterday also. S. 77, the bill relating to testing of private water wells, passed. Also, the Senate passed S. 52, a bill to protect employees from abuse at work. As passed the bill calls for a committee to study the issue of workplace bullying. The VBA has been named as a member of the committee.
This morning the Senate Judiciary Committee completed its work on H. 88, the UCCJEA and recommended its passage on a 5-0 vote. They made a couple of minor changes which I am certain will be acceptable to the House. Then the governor’s signature will leave Massachusetts as the only state to not enact this law. Finally.
The House Commerce Committee is still working on H. 272, maintenance of private roads while its uniform limited cooperative associations bill (H. 21) was sent to the Ways and Means Committee for its review. Those entities are being renamed “mutual benefit enterprises” though.
I spoke with Senator Ann Cummings about S. 98, the licensed lender bill; she chairs the Senate Finance Committee where the bill was referred almost two weeks ago. She seemed surprised to know the bill was still there, so we should see it on the calendar soon. She did say that she has a deadline on next Friday, April 15 to get bills out. I assume that means all committee chairs are looking at that date. Finance has their hands full, though, with the tax bill and eventually the health care bill. That committee is meeting nights this week and next.
A subcommittee of our Business Associations Law Section is working on a rewrite of our non-profit corporation statute. That draft, in bill form, should be done this summer in plenty of time for introduction in January 2012. I’ve asked the Commerce Committee chair for an hour for some members of that working group to present an overview of what will no doubt be a pretty expansive piece of legislation. He seemed favorable and just asked that I stay on top of their calendar so we can get it in when there is an opening.
I’m trying to get H. 79, the adult guardianship jurisdiction act on the Senate Judiciary calendar soon; also, we’re trying to get the House Judiciary Committee to set aside some time before adjournment to get a briefing on the foreclosure statute “clean up bill” that was introduced again this session. Stay tuned for more on both of these.
Thanks for reading.

Wednesday, April 6, 2011

Yesterday I notified members of the Property Law Section about H.272 and the Employment Law Section about H. 450. Both bills are worth reading if you occasionally dabble in these areas. Here is a link to 272: and here is the link to 450: . H.272 is a bill that would meet Fannie May’s requirement that each state have a statute regarding allocation of costs for maintenance of private roads. Testimony this morning in the House Commerce and Economic Development Committee revealed that some loans were denied due to the lack of a written agreement among the owners of a private road and the lack of a statute that governed. Existing written agreements would still control if this bill is passed. The bill codifies what the Vermont Supreme Court ruled in Hubbard v. Bolieau, 144 Vt. 373 (1984).
Hal Miller was scheduled to testify but had to be rescheduled due to illness. The Vermont Bankers’ Association President Chris D’Elia; rep. Willem Jewett; Peoples United loan officer Christy Mitchell; Vermont Association of Credit Unions President Joe Bergeron; Addison County Realtor Claire Wallace; and Vermont Mortgage Bankers’ Association President Jason Pidgeon all testified in overwhelming support of the bill.
I doubt the committee will be getting back to the bill this afternoon their calendar seems pretty full. More time is set aside for tomorrow morning. Actually, that conflicts with scheduling for the Senate Judiciary Committee when it returns to the UCCJEA- the child custody bill. I’ve been planning on being there tomorrow morning but will now try to divide my time and report back to you in the afternoon.
H.450 is being introduced today as a committee bill. That means it goes on the Notice Calendar for tomorrow and to Action on Friday, if it is not committed to another committee. Again, I’ll keep you posted as this moves along.
I’ll report when I have news. You should know that, as we approach the end of the session, much happens in the background and I either don’t have any news to share or I may not have news that I can share at that time. But I am keeping track of the issues and bills we’ve been concerned about. As always, thanks for reading.