Friday, May 10, 2013

Without trying to jinx anything I thought I’d do a quick wrap up even though “it ain’t over ‘til it’s over”. Word is split around town as to whether the session is likely to end tomorrow; it seems to be trending against a Saturday adjournment. But here’s where the bills the VBA has been following are. As you know, H.431, the foreclosure mediation bill has been signed and is now Act 8. The new foreclosure process will begin December 1st . Because it will be an “opt in” process both the House and the Senate passed versions of the budget contain money for Home Ownership Centers (HOCs) to do outreach and counseling of homeowners. Also, Vermont Legal Aid is slated to receive $75,000 to be used in foreclosure defense. That money and the $125,000 to the HOCs came from a settlement reached by the AG with a loan processor, which paid the state $371,000.

Last night the House concurred with a proposal of amendment from the Senate on S. 31, the “Billings” bill. So that’s now on its way to the governor for signature. Here’s the language, effective July 1st:


An act relating to prohibiting a court from consideration of interests in

revocable trusts or wills when making a property settlement in a divorce


It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 15 V.S.A. § 751 is amended to read:


* * *

(c)(1) Notwithstanding any provision of subsection (b) of this section to the

contrary, in making a property settlement the court shall not consider the

parties’ interests in revocable estate planning instruments, including interests

that pass at death by operation of law or by contract, unless the interest is

vested and not capable of modification or divestment.

(2) This subsection shall not apply to estate planning instruments

created by the parties of the divorce proceeding.

(3) A person shall not cause marital property to be placed in an estate

planning instrument for the purpose of excluding it from a property settlement.

A court may order a party to produce evidence related to an estate planning

instrument if it appears that marital property may be included in the


(4) A person who is not party to the divorce may be subjected to

discovery or compelled to testify on the subject of his or her own last will and

testament, on any revocable trust of which he or she is settlor or, in

conjunction with any of these instruments, on his or her assets if the court finds

that a party has fraudulently represented his or her opportunity to acquire

capital assets and income in the future.

(5) The court may impose all applicable sanctions, including an award

of attorney’s fees, upon finding that a party fraudulently represented his or her

opportunity to acquire capital assets and income in the future pursuant to this



This act shall take effect on July 1, 2013.

Other bills we followed include S.7, which has been amended to include “bad faith claims of patent infringement”. That language (section 2 of the bill) was added in the House and the bill is on the Senate calendar today. However, the Senate has already added similar language to another bill (H.299) and sent it over to the House. In one vehicle or the other, that section will become law.

We followed S. 119, a bill that would establish a panel to rule on amending perpetual conservation easements. The bill took too much time moving through the process on the Senate side to allow the House to complete its work. As of right now the bill remains in the House Committee on Natural Resources and will be acted upon in 2014. The additions to the bill by the Senate, both a fee to seek an amendment and the appropriation for the panel members, necessitated stops in Senate Finance and Senate Appropriations, after having left Senate Natural and Senate Agriculture. The same steps need to be taken on the House side and, regardless of the date of adjournment, there is not enough time to do what needs to be done.

The lakeshore protection bill is spending the summer and fall in the Senate Natural Resources Committee as members felt that the public needed more opportunities to speak to it. Accordingly, they are scheduling public hearings throughout the state before retuning next year to complete work on the bill.

Other bills that moved from the House to the Senate but moved so late in the session that they will likely not see action are H.441, changing some provisions of UCIOA, and H. 483, revisions to UCC Article 9. Both bills are sitting in the Senate Rules Committee awaiting “being sprung”. I’m not sure that’s going to happen right away but, you never know!

Another bill of interest to many is H.523, a judiciary “omnibus bill”. It contains a number of provisions that would affect practitioners. It contains language about the availability of jury questionnaires. It modifies a minor provision on the UCCJEA. It addresses an issue that has arisen in family division. It would allow the court to require the payment of the full filing fee IF a stipulation is not acceptable to the court or if the matter becomes a contested matter. It also clears up the fee for filing motions in family division, making it clear that there is no fee for pre judgment motions. Recently, some units began requesting a fee while others believed the fee was for post judgment motions only.

But wait, there’s more. In fact, this bill began life as H. 1 and was maybe two paragraphs long. Well, now it covers creating a fee for a motion for expungement of a criminal record; amends the attorney licensing special fund; adds what was S.1, requiring courts to consider the financial costs of sentencing alternatives; added a completely new section on abused animals; adds language on automated license plate readers; creates a position of chief deputy states’ attorney in larger offices; adds immunity for volunteer athletic coaches; and finally, (at least I think that’s all there is) permits assistant judges to sit with magistrates during child support contempt proceedings! I know that many of you expressed concern about this and I’ve certainly shared your concerns. But here’s where we are. Very little of all this was in the House passed version. The bill won’t go back to the House until later today at the earliest. It’s very likely the bill will summer in the House Judiciary Committee. That’s both good and bad. There are some useful parts of bill that we want. But, I don’t see it passing with all this new language added.

Finally, although the budget conferees are continuing to meet, I am hoping that the small bump in Vermont Legal Aid funding that both the House and Senate passed versions contain will stay in the final agreement. If it does, it will be the first increase for VLA in about six years; that includes any COLAs. They’ve seen no change in their funding for all that time. Fingers crossed. VLA needs the bump given the Vermont Bar Foundation’s funding cut due to weak IOLTA receipts.

I’ll update as soon as there is anything new to report; but, as always, thanks for reading.

Wednesday, May 1, 2013

Wednesday May 1, 2013

It’s been a busy few days since I weighed in here last. The “Billings” bill, S. 31, passed the House this morning with an amendment addressing spendthrift trusts. The House Judiciary Committee decided that the amendment really had no effect and let it go. The bill must now return to the Senate for either its concurrence or rejection and request for a committee of conference. We probably won’t know until next week what awaits the bill.

Yesterday and today were spent working on issues around federal pre-emption in cases of bad faith assertions of patent infringement and estate tax! The first is a pretty novel issue for the VBA to tackle but thanks to the good efforts of the VBA’s Intellectual Property Section and its Chair, Andrew Minitsky, the Section weighed in on its thoughts on S. 7. The bill then emerged from the House Commerce Committee and is now headed to House Judiciary for its review. I’m sure the VBA will be invited back to comment on the flaws that members of the Section noticed.

The estate tax provision and the apparent creation of a Vermont gift tax caught the attention of CPAs, members of our Probate and Trust and our Tax Law Sections and finally resulted in the passage of an amendment stripping three sections of the bill and creating a study committee to work out the details of what the Senate was trying to do in H. 528. Many thanks to Senators Ann Cummings and Peg Flory for their work on this amendment as well as to Paul Hanlon who met with both senators on Tuesday afternoon.

The Senate will be debating the budget this afternoon and tomorrow. after passage it returns to the House for conferees rto work out the differences in each version of the bill. The same holds true for the tax bill which passed earlier today.

As always, thanks for reading.