Saturday, January 28, 2012

Saturday January 28, 2012

It seemed a little quieter than usual yesterday at the statehouse, no doubt due to the icy roads in the early morning. I know some committees canceled their hearings and others shut down early. But the Senate Judiciary Committee kept to its schedule, closing in on finalizing S. 203, the child support enforcement bill. There is still some work to be done and I expect it will be completed next Friday when the chair hopes to vote the final bill out of committee. They also had time to interview newly appointed Judges Alison Arms and Marty Maley. Although I was in another meeting for most of those conversations I was assured that both did well and confirmation by the full Senate should be no problem. Two weeks earlier Justice Robinson went through a similar interview and next Friday E-Court Judge Tom Walsh will be in. The Senate Judiciary Committee is moving through these confirmations quickly this year. There are also two judges that are standing for retention this year: Judges Carroll and Pearson; so far no hearings have been scheduled to move those.
On the House side, the House Judiciary Committee completed its work on H. 403 the foreclosure bill! I’ve already been asked for a copy of the final version but I do not have a clean copy. It will be found on the house notice calendar on Tuesday of next week assuming that it was delivered to the clerk’s office. It will be a “strike all”, meaning that instead of trying to weave small changes and amendments to the bill as introduced, the committee started over and wrote an entire new bill. But, most of the bill remains unchanged; it’s just much easier to read and understand a clean copy. The committee is still trying to wrap up a few issues with the Uniform Principal and Income Act and I hope that’s done and out be the end of next week.
I spent a bit of time in the House Commerce and Economic Development Committee this week testifying in support of H. 565, the amendment to the licensed lender act. As I’ve written before, either here or to the Property Law Section list serve, the bill replaces “act” as a lender or mortgage loan originator with “engage in the business of”, evidenced by “habitualness and repetition”. It also expands the definition of family members and clarifies transfers between former spouses. Everyone hopes H. 565 will go a long way to solving the issues you’ve had with the SAFE Act since the 2009 amendments. In short the bill takes us back to 2008, or as one witness said “back to the future”. These changes comply with the HUD regulations. Commerce may be ready to vote the bill out next Tuesday; if so it could be off to the Senate by the end of the week. I recommended that the law become effective on passage, meaning, the day the bill is signed by the governor. I’ll keep you posted as to its progress.
House Commerce will also tackle the private roads maintenance bill, H. 272, next Wednesday, setting aside the entire morning to do so. Property Law Section Chair Hall Miller will be our witness.
I reported last time on the conservation easement bill as presented to House Judiciary. That’s not returned to the committee’s calendar. In House Natural Resources, a second hearing on the energy disclosure bill was canceled yesterday due to driving conditions; it will be rescheduled but the future of the bill remains unclear.
I along with Chris D’Elia, President of the Vermont Bankers’ Association spent some time with Sue Minter, the new Irene Recovery Officer. She read and was interested in learning more about out Post Irene Property Law Task Force report. Chris and I continue to see interest in our report and gratitude for both of our association’s contributions to Vermont recovery efforts. They appreciate our collaborative approach to Irene and to the other projects we’ve worked on together and those we’re still working on together. For example, H. 403 is the result of an ad hoc committee that began working on the rewrite, I think, in 2008.
Earlier this week I wrote about the meeting we had on extending foreclosure mediation to all cases. H. 600 was introduced but still needs a great deal of work. That’s a case where there was no cooperative effort outside the statehouse to bring the different stakeholders to the table to find an acceptable approach. Legislators have commented to me how different and how difficult it is to resolve these positions if the parties have not talked. We do have some time to work things out as the crossover deadline this year is the Friday before the Town Meeting recess, March 2nd.
I will be out of state next week attending the ABA Mid Year Meeting so I will not be reporting until February 7th at the earliest. As always, contact me with questions and suggestions.
Thanks for reading.

Wednesday, January 25, 2012

January 25, 2012

Yesterday the House Judiciary Committee heard from representatives of our ad hoc committee with what we all hope will be the final changes to H. 403. They also decided the one outstanding policy issue which our group was unable to resolve. I think it is fair to say that the committee is opposed to using the non judicial process for dwellings owned by individuals. Once legislative counsel incorporates the changes the committee will give the bill a final once over and it should be voted out unanimously. Then we do it all over again in the Senate.
Earlier in the day the Vermont Bankers’ Association hosted a meeting on the issue of extending foreclosure mediation to all foreclosure cases. There was NO agreement on that issue but the parties agreed to put their objections and proposals in writing and send them to the “other” VBA and the conversation will continue.
Later today the House Natural Resources Committee will begin work on H. 497, the energy disclosure bill that replaced last year’s H. 57. Tomorrow H. 565, the amendments to the licensed lender law will be taken up in House Commerce. I’m scheduled to testify for the VBA and will report back on how it goes.
Meanwhile the debate continues in this year’s version of permit reform. The Senate natural Resources Committee has a full list of witnesses for tomorrow morning on the future of the E Court as well as “on the record”, “modified on the record” or “de novo” appeals. Although I’m scheduled to be elsewhere at the time I’ll try to get a few minutes in each hearing and get a report back before the end of the week.
Thanks for reading.

Tuesday, January 24, 2012

January 24, 2012

We seem to be caught in a sort of time warp when it comes to the foreclosure statute rewrite in H. 403. Although I was away on Friday attending a New England regional bar meeting, the House Judiciary Committee spent some time again reviewing the bill and taking testimony from Judge Teachout. She was critical of some of the language and wanted the bill to cover some things that were not and are still not included. So, the Chair asked our ad hoc group to meet yet again to amend the amended language of the amended draft to the bill as introduced; yes, I meant to say that! So yesterday the VBA hosted yet another meeting where we continued to narrow down the issues and I think now we’ve resolved all but one: the owner occupied language that appears in non judicial foreclosure. I don’t think we’ll find agreement there and the Judiciary Committee will just have to make that policy decision. Later this afternoon we’re back before the Committee presenting and explaining our amendments yet again.
Also, the Vermont Bankers’ Association is hosting a noontime meeting to try to resolve the issue of extending mediation to all foreclosure cases, not just to those mortgages covered by HAMP (since that program is set to expire at the end of this year). There is no bill yet introduced that will make the extension but Vermont Legal Aid and the AG’s Office have it among their priorities for this session.
Later this week the House Commerce Committee will begin testimony on H. 565, the licensed lender bill. I hope all of you that are interested in this issue will take a look at the bill and get any comments to me before Thursday. At this point I have one of our members who wants to come in with some comments and suggestions to make the exemption language a bit more clear.
Action on H.272, the private roads maintenance bill has been delayed until next week due to the unavailability of witnesses.
There was an introductory explanation of H. 553, the conservation easement bill. At the conclusion of the limited time available to the committee the chair said he was not sure when or if they will return to hear more. I know there are many of you with some real reservations about the bill and I will track it and keep you informed in this blog.
Later this week the Senate Judiciary may well complete its work on H. 203, the child support enforcement bill along with S. 116 the probate bill. The House Ways and Means Committee will return to work on the proposal for the Tax Dept. to collect the education portion of our property tax. I know this is an issue of great concern to title searchers and we are approaching the time when I may ask you to start contacting your legislators and informing them of what this change could mean.
Finally, I will be presenting the report of the Post Irene Property Law Task Force to the Speaker of the House tomorrow and to the governor’s Irene Recovery Officer Sue Minter on Friday.
More as the week goes on. Thanks for reading.

Wednesday, January 18, 2012

Last Wednesday the House Judiciary Committee devoted the entire day to a review of H. 403. Many of us that served on the ad hoc committee were present. There were a few questions raised by the legislators that sent many of us back to work to resolve. That meeting was held yesterday at the VBA. I wish I could say that everything is done and put away but there’s still some work to do. Judge Teachout is scheduled to address the committee this Friday. Because Judiciary spent so much time on H. 403, they delayed discussion of the extension of the foreclosure mediation procedure to all mortgage foreclosures to another day. That proposal has a lot of opposition and the proponents have yet to do the necessary legwork with the opponents. If mediation does move forward I’d like to see the two foreclosure bills move separately and not be combined into one.

Last Friday when many of us were enjoying the “Thaw” in Montreal (the coldest place on the planet every MLK Weekend) the Speaker of the House asked Chris D’Elia of the Vermont Bankers’ Association to convene a meeting of interested parties to discuss the Supreme Court’s decision in In Re: HS-122. We were represented by Jeff Kilgore. Chris sent me a copy of his report to the Speaker. Here it is:

Per your request, on Friday, January 13, the Vermont Bankers Association convened a meeting of stakeholders to discuss the Supreme Court's ruling about keeping state tax credit information private. Those participating in the meeting included: representatives from the town of Manchester; Clerks and Treasurers Association; bankers; lawyers; realtors; the Tax Department; League of Cities and Towns; and Senator Ann Cummings.

After careful consideration and deliberation of the many challenges created by the Court's ruling, the group agreed on the following recommendations:

1. The HS122 report should be confidential;
2: A property tax bill containing only a gross tax amount be public;
3. A property tax bill containing both gross and net tax amounts be confidential;
4. An exemption created for the following parties to have access to the tax bill
containing both the gross and net tax amounts: lawyers; bankers; escrow servicing companies; accountants; tax preparers; realtors; outside auditors; and municipal personnel on a need to know basis;
5. A penalty provision to ensure compliance with the exemption;
6. All other town records should maintain their current status of public versus

Christopher D'Elia, Vermont Bankers Association
Alison Kaiser, Town Clerk, Stowe
Karen Richard, Town Clerk, Colchester
Christopher Rice, MacLean Meehan and Rice
Christopher MacDonald, Vermont Association of Realtors
William Johnson, Vermont Tax Department
Steve Jeffrey, Vermont League of Cities and Towns
Senator Ann Cummings
David Freteling, Town of Manchester


Last week I reported on the hearing at the Senate Natural Resources Committee on the report on Improving Vermont’s Environmental Protection Process. While I was in House Judiciary on foreclosure VBA Environmental Section Chair Gerry Tarrant testified to the committee on the Section’s response to the proposals in the report. Instead of trying to paraphrase his report I am reprinting his email to the Section explaining the hearing. Here it is:

The Environmental Section is composed of 176 lawyers. While we do not always agree and there is no unanimous position on the Shems/Markowitz Report I have received a number of responses from lawyers and all of the membership has had an opportunity to see their responses. Based on those responses I stated:

The lawyers in the Environmental Section strongly favor retaining the Environmental Division – Superior Court because most all lawyers – whether they present environmental groups or applicants – desire the due process a court provides.

While not as strongly stated, I stated that most of the lawyers I have heard from do not seem to favor on the record review but generally or strongly prefer a de novo review before a court. (See Slason, Reynes, Goss, Grayck, Landis-Marinello, Kockman, Anderson, McNaughton comments.) I took the opportunity to read some of what Larry Slason wrote to me contained in the second bullet under Section II written by Larry. I read most of the third bullet and spoke to the need to present “substantial evidence on every single permit criteria and subcriteria.” The committee members seemed to appreciate this and thought most applicants would know whether or not various applications/issues would be appealed early on. Of course, as the applicant prepares he needs to decide whether to prepare before he files so Larry is probably right that the applicant would need to make a much stronger (and expensive) case before the District Commission in most cases. If most cases are not ultimately appealed then it might be argued that applicants have over spent on initial presentations before the District Commissions. I also mentioned that without court stenographers or videotaping the proceedings any tape would make a district commission hearing incomprehensible for an on-the record appeal. Consistent with many comments I mentioned that I thought it might take too much time and effort to overcome what would really be a recording or tape of a less structured hearing process run largely by lay boards with relaxed evidentiary standards. I didn’t think it would solve the problems people want solved.

I was asked by Sen. McCormick why the super panel wouldn’t work in those larger cases so they applicants could side-step the local boards or regional commission. I advised him that it wasn’t clear but it seemed that most of the comments I received did not favor this approach based on forum shopping, abuse of discretion, unequal treatment, etc. I also mentioned that some of our larger firms that do business in Maine do not think that process works well there.

I was asked by Sen. Brock why lawyers do not appear to favor on the record appeals while business representatives were telling him that’s what they want. The only answer I had was that I didn’t think the businesses had had an opportunity to review this with their counsel before they took a position (and that on the surface most people think that “on the record” appeals seem cheaper and quicker) and that those lawyers who have thought about it seemed to understand that “on the record” appeals would end up taking more time and costing more money for more applicants.

Sen. Lyons asked a question on professional boards. She felt I was comparing the Environmental Court with a lay board and she had in mind a professional board like the PSB. She wanted to know why a professional board couldn’t work and also provide other benefits. I agreed it could work but that the PSB was unique because it only regulated a handful of utilities and although they had a full docket they were funded by “bill backs” from the utilities so money isn’t a problem. Plus they have the DPS Public Advocate funded by bill backs. That isn’t something that is workable with an environmental panel or board. But Sen. Lyons seemed to really like the PSB model.

I supported making the process faster and stronger by the Legislature adopting a bill that would 1.) give the Court a magistrate or additional clerk(s) to help with work load; 2.) requiring the ANR to adopt a process (with notice to interested parties) to allow their permits to be given binding effect in the future which would expedite the Act 250 process; and 3.) that a Municipal Administrative Procedures Act should apply to all municipalities.


Members of both the Environmental and Property Law Sections should pay some attention to the following bills:

H. 565, the revision of the licensed lender laws that caused and continue to cause so many questions and added expense to transfers of title.

H. 553, the conservation easement modification bill that the Property Law Section had quite a bit to say about late last year when I circulated a draft. The Environmental Law Section has so far been pretty quiet on this. It will get its first airing tomorrow afternoon in House Judiciary.

H. 497, energy performance disclosure required upon sale. This bill replaces H. 57 form last year’s session and is the product of a summer study committee.

This morning the House Ways and Means Committee spent time on hearing options on paying the education portion of the property tax directly to the state! I don’t know if this idea has legs but the bankers shot it down pretty quickly. I imagine title searchers might well agree!
Finally, as you may have learned through both print and TV media, yesterday I was involved in presenting the Final Report of the Post Irene Property Law Task Force to the entire Senate sitting as a “Committee of the Whole”. It was quite the day and since there has been so much coverage, I’ll leave it at that.

Thanks for reading.

Saturday, January 7, 2012

Saturday January 7, 2012

Well the first week of the session went by without my having the time to sit and pen a blog entry; so here goes. I’m sure you’ve followed news reports about what’s happened thus far in the session but I want to point out a few things of special interest to our members. You may recall that, back in October, I was asked to chair a special task force to review Irene’s impact on real property and our law’s ability to respond. So I organized what became known as the Post Irene Property Law Task Force. After numerous meetings involving nineteen different state agencies and associations our Final Report was delivered to the House and Senate Judiciary Committee this week. A copy is available on the VBA website.
Because the issues raised in the report cross the jurisdiction of almost every legislative committee, the President Pro Tem has asked that I and Co-Chair Chris D’Elia, President of the Vermont Bankers Association deliver and explain the report to the entire Senate. So, a “Committee of the Whole” will meet on the senate floor on Tuesday, January 17th. This will be the first time that process will be used in about thirty years! Extraordinary events call for extraordinary response.
Although Irene may have dominated my first week much more was going on. For example, the Senate Judiciary Committee heard testimony on the report of a special committee that studied strategies to improve child support collection.
Read the report here:
Judiciary will return to look at specific bill language next Friday. I will post a link to the bill when it is drafted and introduced. I don’t plan to be there then as I will be at the YLD Thaw in Montreal.
I spent a good portion of Wednesday morning in the Senate Committee on Natural Resources when it was considering a report on Improving Vermont’s Environmental Protection Process. That report can be read at the Natural Resources Board website:
After hearing the testimony of ANR Secretary Deb Markowitz and NRB Chair Ron Shems, I put two questions out to the VBA’s Environmental Law Section list serve at the request of Committee Chair Senator Ginny Lyons. They are: should the present Environmental Division of the Superior Court be replaced by a “professional board”; and, should appeals (to the Court if it is retained) be “on the record” or “de novo”. That generated quite a bit of discussion on the list and I am beginning to compile some witnesses to testify when the committee returns to this issue. I’m not sure exactly when that will be but I will continue to cover it in this blog as it moves forward.
I noticed this morning the upcoming introduction of H.513 next Tuesday; look at the purpose statement of the bill:
Statement of purpose: This bill proposes to replace the natural resources board with an environmental review board that would hear the appeals and enforcement cases related to state environmental permits that currently are heard by the environmental division of the superior court. The new board would have the administrative oversight and rulemaking authority for the Act 250 program presently assigned to the natural resource board’s land use panel. The rulemaking authority of the natural resources board’s water resources panel would be transferred to the secretary of natural resources. The environmental division of the superior court would continue to hear appeals and enforcement cases related to local land use bylaws, except that an appeal of a local land use decision would be to the environmental review board if the underlying project is also subject to state environmental permit requirements. Read the bill here:
I have not yet gotten to see the report of the Building Energy Disclosure Committee that worked on that issue over the recess between sessions. You may recall that H. 57 is the bill that would require disclosure at the time of sale. That bill seems to been replaced by H. 497 which was just introduced; here it is:
I expect hearings to begin on this soon although the committee of jurisdiction (House General, Housing and Military Affairs) does not have it on its calendar for next week. Instead they will be looking at unfair housing practices and mobile homes.
Here are a couple bills of interest introduced during the first week.
S. 115 would prohibit malpractice claims against public defenders unless the plaintiff first prevailed in a PCR proceeding based on ineffective assistance of counsel.
S.123 would require court clerks to allow attorneys of record to get a copy of jury questionnaires or to view them on a secure website.
S. 162 would provide that a general power of attorney may grant powers not expressly stated if the facts show that the principal intended the agent to have that authority.
S. 166 would provide for “on the record” appeals from Act 250 district commissions to the E-Court.
These are just a few that I thought worthy of mention. Remember that introduction does not indicate that any of them will even get a hearing after they are referred to the committee of jurisdiction. There were over 200 bills introduced this week, which of course got added to the hundreds from last year.
Next week, even though it’s a short one for many of us going to the Thaw, will be a busy one. On Monday, there’ll be a meeting at the VBA of the ad hoc committee that drafted what is now H. 403, the bill to reorganize our foreclosure statutes. We’re planning to do a final read through of some amendments and then present it to the House Judiciary Committee on Wednesday morning. In the afternoon, Grace Pazdan of Vermont Legal Aid and Elliott Burg of the AG’s Office will ask the committee to extend the foreclosure mediation program, developed for HAMP loans, to all mortgage foreclosure actions.
Also next week Mark Langan, Co-Chair of the VBA’s Probate and Trust Section will make two appearances at the statehouse. He will testify at the Senate Judiciary Committee on a probate study committee he participated in this summer; and then go to the House Judiciary Committee to testify on the Uniform Principal and Income Act.
Also, the speaker has asked lawyers, bankers, realtors, and town clerks to work together to resolve the issue of public availability of property tax bills. There is a growing call for overruling the Supreme Court’s decision in HS-122. I’ll report on this after a meeting scheduled for late next week.
I hope this overdue update on the happenings in Montpelier helps. As always let me know what more I can or should be reporting on to keep you informed. And, as always, thanks for reading.