Wednesday, November 18, 2009

Judicial Reorganization

Everywhere I go in Vermont, whether to meet with bar members or not, there is talk about the reorganization of our judiciary. The Report of the Commission on Judicial Operation was recently cited as a partial answer to the impending budget crisis for the next legislative session. Don’t let this get by you! Read the report; ask questions if you have them; and then let your legislators know what you think can and should be done. I will try to get you answers on any questions you may have. Likewise, I am happy to pass on your comments to the Court if you’d like.
Remember that the charge to the Commission went way beyond saving $1 million as some are now saying. It began in May 2008 with the following:
Consolidation of staff, including clerks of courts, paid by the state within the judiciary budget and consolidation of staff functions, across courts in individual counties and statewide;
Regionalization of court administrative functions, both those now performed at the state level and those performed at the county level;
Use of technology, including video technology, to reduce unnecessary expenditures, including transport of prisoners, while improving access and maintaining the quality of adjudication;
Flexibility in use of resources to respond to the demands on the judiciary overall and particularly in instances where the amount and nature of demand changes;
Reallocation of jurisdiction between courts, consistent with effective and efficient operation; and
Any other idea for the efficient and effective delivery of judicial services.

We have heard our Chief Justice speak on numerous occasions about the effect the budget crisis has had and continues to have on the operation of our courts. I recently read something in the court’s October update from the court administrator that I’ve never seen before. The shortage of staff has prompted court employees to move around to help out in other courts outside the county.
Here is what I just read:

Cross Training and Job Sharing Successes
We want to express our thanks and kudos to the many case managers who have been regularly covering case manager conferences in other county courts to support staff shortages. Case managers have historically covered conferences in other courts as needed, even before JUDSLIST was implemented. With vacant positions and other staff shortages, they are pitching in more than ever. We are grateful to the following case managers for sharing the burden across county lines:

Karen Ackermann from Caledonia to Orleans and Washington
Margaret Crowley from Chittenden to Orleans
Beth Aiken from Washington to Orleans
Denise Gladding from Orange to Lamoille and Orleans
Charles Hacker from WRJ to Orleans
Cindy Mundell from Essex to Orleans

Kudos to Caledonia District, Family and Superior Court Staff
We wish to acknowledge Tammy Tyda, Deb Towle, and Bridget Sargent for the valuable
coverage they are providing to other courts, especially for Washington and Lamoille counties. Court manager Kathleen Pearl notes that being fully staffed with experienced, skilled individuals has made it possible to provide this kind of coverage consistently to other courts. Also, beginning in November, 2009, Essex County District Court arraignments and hearings will be held in the Caledonia District court, with the exception of jury draws and jury trials.

Seeing it spelled out like this somehow increases the urgency of needing to fix the system. I hope this helps in your understanding of this process.

Friday, November 6, 2009

Today's Commission meeting

The Commission on Judicial Operation unanimously voted to approve the draft report this morning and then adjourned just before 11:30. The work of the Commission is probably now finished. They also approved "in concept" a draft bill that carries out the intention of the report. Legislative Counsel Eric Fitzpatrick will take the draft the Commission posted yesterday and check it for errors, consistency, etc. before it is introduced in the legislature in January. It's my understanding that it will begin as a House bill and most likely be handled by the House Judiciary Committee.
Today's unanimous Commission vote was not without reservations on the part of every Commission member that spoke. Each understood the challenge facing the judiciary; each said that it's time to make hard choices; and each speaker didn't like the choices available. In particular, each person acknowledged reservations about the recommendations to change the Probate Court structure. But in the end, this is a proposal to the legislature that, for all the Commission work to date, will probably come out the other end looking very different!

Draft Reorganization Bill Posted

Late yesterday the Commission on Judicial Operation posted draft legislation on the judiciary's website. It would put into effect the changes listed in the draft report. The Commission meeting will begin in about an hour and we'll see if the draft is adopted, rejected, modified, etc. I'll report back later today.

Wednesday, November 4, 2009

Commission on Judicial Operation

Well it’s been four months since I last posted anything to this blog. Now that the draft final report of the Commission on Judicial Operation is online and will be discussed at the Commission’s “final” meeting on Friday, November 6th, it’s time to reactivate this blog and for all of us to stay in closer contact as this plays out. And it won’t be long before the legislature returns to town. I want to thank all of you that responded to the five question survey this summer and/or attended county bar focus groups to offer your input. We also had a very successful Annual Meeting “town hall” at which many of you participated. Now is the time to read the report which is found on the judiciary’s website under the link to November 6. It’s still a draft, remember. I’ll post here when the Commission votes on the final product. Between then and the opening of the legislative session I urge all of you to contact your house and senate members and let them know how you feel about the proposals. It’s important that they hear from the bar about access to justice. Don’t assume that every legislator, especially those not serving on the judiciary or appropriations committees, fully understands the depth of the crisis facing the courts. Doing nothing is not an option at this time. You may or may not like what the Commission will finally recommend. I don’t doubt that you may have other ideas or suggestions after spending some time with this report. I would be happy to hear those ideas and share them with the Chief Justice and the Court Administrator. Of course, you can take those directly to your legislators if you so choose. I’ll be posting more frequently now as we move into the session.

Monday, June 22, 2009

Focus Groups

I continue to attend Commission on Judicial Operation focus groups as well as facilitate those organized by the VBA. Last week I attended groups of court staff in three locations as well as two groups of court administrator and Supreme Court staff. Their perspectives were a bit different than some other groups I’ve heard. Also on June 11th, I met with the Chittenden County Bar, while on the 12th I facilitated the discussion with the Franklin, Grand Isle, and Lamoille County Bars. The Chief Justice has been to all meetings so far, while Justices Johnson, Skoglund and Burgess have each other some.
Later today I’m driving to Middlebury for the Addison Bar meeting; tomorrow it’s Bennington’s turn. On Wednesday, I meet with the Washington-Orange bars and on Friday I’ll be in Rutland. To date there are two more meetings scheduled: Caledonia, Orleans, and Essex Counties on July 1st and Windham County on July 10th. I’m still working on Windsor; I’ll up date you as soon as I have a date.
Last Friday, John Douglas of the National Center for State Courts facilitated a discussion with the VBA Board of Managers with the Chief and Justices Johnson and Burgess present. There was a lively discussion about alternatives to the judicial system as we know it.
It’s looking as though we’ll have a final report of the Commission in mid October for delivery to the legislature upon its return in January. We’re thinking about a “town hall” style meeting at the VBA Annual Meeting at Lake Morey on September 25th. Stay tuned for more details.

Wednesday, June 10, 2009

Update on Focus Groups

Well it’s been a few weeks since I logged on and updated this blog. I want to bring you up to date on the work of the Commission on Judicial Operation. The Bennington County Focus Group will be held at the Mt. Anthony Country Club on the 23rd of June as noted earlier. Also the Windham meeting will be at the Marlboro College Graduate Center in downtown Brattleboro on Friday, July 10th from 10:00 AM to Noon. Please join either group if you’re close by.
In the meantime I’m working on setting up a Caledonia-Orleans-Essex Focus Group to be held at the Caledonia Courthouse. We’re working on either July 1 or 2; I’ll post the date and time as soon as I have it.
I’ve been attending focus groups as they occur including the State’s Attorney’s and public Defender’s groups last week. Tomorrow I’ll be at the Chittenden County Bar group while on Friday, I’ll be at the Franklin, Grand Isle, and Lamoille County meetings. Please attend if you’re able and participate in the discussions. This may be your only chance to weigh in.
The Chief Justice has been to all the meetings thus far, at times accompanied by Justices Burgess, Johnson, and/or Skoglund. In fact, all four attended the Public Defender session last week. Remember, just as in the online survey you were invited to complete, nothing said at these group meetings is for attribution. The complete schedule of focus groups is in the post of May 22nd.

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.

Thursday, April 30, 2009

Thursday April 30

We’re in the final two weeks of the legislative session and two of our priorities are making slow progress to final passage. The Vermont Trust Code, S. 86, has passed the house and is back in the senate. The house amended the bill soothe senate must concur with the house-passed version, further amend the bill, or refuse to concur. We’re working with the Senate Finance Committee to accept the house language, concur, and send the bill onto the governor for signing.
The estate bill, H. 11, has passed the senate and, as I’ve reported before, the house has refused to concur. Another bill, S. 26 dealing with profits from crime (the so-called “Son of Sam” bill) is moving back from the senate to the house with a further proposal of amendment. OK, so here it gets a bit complicated. The senate passed S. 26; it went to the house. The house, having objected to the assistant judge language in H. 11, refused to concur with the senate’s additions. So the house added the estate language from H. 11 to S. 26 and sent it back to the senate. The senate then did just about the same thing! They added back the assistant judge language to S. 26. So it’s off to conference committee for both bills. Senator Sears yesterday said he wanted the conference committees on both bills, at least on the part of the senate, to have the same membership. I’m sure this will all shake out in the end but, as is always the case at this point in the session, it seems as though nothing will ever go right.
I’ll report back soon.

Sunday, April 26, 2009

Your input on judicial reorganization is needed

The Vermont Commission on Judicial Operation, with the assistance of and funding from the National Center for State Courts, is beginning to hold focus groups to discuss reorganization of our judiciary. On Monday, the Commission will meet with county clerks and court managers in Burlington. On Tuesday, it will hold focus groups with probate judges in the morning and assistant judges in the afternoon. The commission will meet with the VBA Board of Bar Managers on Friday, June 19th at the Board’s annual retreat. If you followed the link from this blog last week to the Commission’s interim report you will see that the work plan calls for the Commission to meet with legal aid, state’s attorneys and public defenders during judicial college week in June.
The Board has insisted that the Commission get input from you the practicing bar. I have begun to set up county bar meetings at which the Chief Justice will appear along with as many members of the Commission as can attend. The first such meeting will be a joint meeting of the Franklin, Grand Isle, and Lamoille County Bars. That meeting will be held in St. Albans on Friday, June12th. On Monday, June 22nd and Tuesday, June 23rd, meetings will be held with the Addison and Bennington Bars. The Rutland County Bar will meet on Friday, June 26th. As soon as the legislature adjourns, I’ll be contacting the remaining counties to ask if they want the same opportunity. If you’re reading this and want to set something up, contact me right away. This may be your only opportunity to make your voice heard on the reorganization. The Board of Managers does not want anyone to be caught by surprise next January when the legislature is presented with the recommendation of the Commission.

ABA Day in Washington; Richard Cassidy honored

VBA President Doug Molde, President-Elect Eileen Blackwood, ABA State Delegate Fritz Langrock, Association Delegate Rich Cassidy, and I attended ABA Day in DC from 4/21 to 4/23. After briefings by the ABA Government Affairs Office and presentations by capitol hill insiders we were off to the hill to deliver messages from the ABA and VBA. The focus of our visits and lobbying efforts was access to justice. The biggest issue this year, as in years past, was funding for the Legal Services Corporation. Presently funding sits at $390 million, up $50 from last year. The ABA and the Obama Administration are asking for $435 million. This is still well below the inflation adjusted amount from LSC’s early years.
This year the additional issues are re-authorizing the LSC as well as removing some restrictions imposed in 1996 on use of the funds. The final issues we presented dealt with legal services for servicemen deployed to active duty and legal information help and translation services for detained aliens facing deportation.
We met with each of our legislators on Wednesday. Our meeting with Congressman Welch was cut short as he left the office to present his resolution honoring Captain Richard Phillips from Underhill. He spoke eloquently on the floor of the House and we could see the pride in both him and his staffers with whom we watched him deliver his remarks.
Our meeting with Senator Sanders was perhaps the most productive one we’ve ever had with him. As he has for the past two years, he said we were not asking for enough for the LSC!
Finally, we went to see Senator Leahy, Chair of the Senate Judiciary Committee. The ABA always sends someone with us to that meeting; it’s their access to the perhaps the most important senator for their issues. Well, that meeting almost didn’t happen because our senator was on the floor managing debate on a bill he’d sponsored. Between his presentation and time out for roll call votes, he left the floor to visit with us. But, we could only visit outside the Senate Chamber. None of us had ever been to that part of the building, a place we could not access without an escort. His Chief of Staff Ed Pagano brought us there and, since a roll call was in progress, we saw many senators enter, vote and exit the chamber during our meeting.
Finally, at Thursday morning’s briefing we heard from Greg Craig, the President’s legal counsel, and Senator Tom Harkin.
Richard Cassidy was honored by the ABA with a Grassroots Advocacy Award presented by ABA President Tommy Wells. At a reception at the Library of Congress Rich became one of a handful of people so recognized by the ABA. Here are the remarks of President Wells:
Richard T. Cassidy has long been active in public service, in addition to maintaining very successful law practice.
Rich is a graduate of the University of Vermont and of Albany Law School. He has been in private practice in the Burlington area since 1980 and was a founder of his law firm, Hoff Curtis.
He represented the Vermont Bar Association in the American Bar Association House of Delegates from 1999 through August of 2005 and served as a member of the ABA Board of Governors from 2005 through 2008.
He resumed representing the Vermont Bar in the House of Delegates as of August of 2008. Last year, I appointed him to a three year term on the Standing Committee on the Delivery of Legal Services.
Over several years, Rich has worked closely with the ABA Governmental Affairs Office, ABA leaders, and Vermont Bar Association leaders in an attempt to persuade Congress to support the Attorney-Client Privilege Protection Act, which would reverse the Justice Department and other federal agency privilege waiver policies. Rich devoted a great deal of personal time to this effort, including taking time from his busy schedule to travel to Washington.
Although the legislation itself has not yet been enacted, Rich’s efforts were instrumental in Congress’s persuading the Department of Justice to adopt major reforms to its waiver policy in August 2008.
Rich is joined tonight by his wife Becky and friends and colleagues from the Vermont Bar Association.
Please join me in thanking and congratulating Richard T. Cassidy for his work on behalf of all Americans to protect the attorney-client privilege.
Congratulations Rich!

Tuesday, April 21, 2009

Vermont Commission on Judicial Operation

The Interim Legislative Report of the Commisson on Judicial Operation, including timelines and Appendices, is now posted on the Vermont Judiciary website.

You can review the Report by going to, which will take you to the home page. To the right of the text that is on the right side of the picture, you will find a link to the Commission webpage under the category "What's New?"

Monday, April 20, 2009

Monday April 20th

I didn’t get around to writing again on Friday as I spent most of the afternoon waiting for the House Ways and Means Committee to take up S. 86. After a couple of recesses of floor action, the committee did spend about an hour on the bill, concentrating mostly on the fees. Paul Hanlon did a “fly over” of the substance of the bill while bob Greemore talked about the fees. They’ve set aside this Wednesday to mark up and vote the bill out. It should be ready for floor action by Friday. But this is going to be a pivotal week for this session.
The Senate Appropriations and the Finance Committees are meeting today. Appropriations should have the budget done by this afternoon. If you looked at the legislature’s website as early as this morning, you would have seen that the calendar for tomorrow is not yet there. Instead, Friday’s calendar remains. Legislative council is waiting for the budget to post as an addendum to the calendar. Meanwhile, Finance hopes to put out its tax package in support of the spending plan. During its meeting on Friday there did not appear to be must support for extending the sales tax to services. Let’s hope this holds. If it doesn’t I will be sending out an action alert asking you to contact senators as soon as possible. Sit tight for the time being.
I will be in DC for the next few days and not back in the statehouse until Friday morning. Unless I learn more about what is going on I won’t post until the end of the week. I’ll be attending ABA Day along with VBA President Doug Molde, President-Elect Eileen Blackwood, ABA State Delegate Fritz Langrock, and VBA Delegate Richard Cassidy. We’ve scheduled appointments with both senators and our congressman to discuss issues of interest to the ABA and the VBA.

Friday, April 17, 2009

Solo and Small Firm Conference

2009 VBA Solo & Small Firm Conference

The VBA’s 2009 Solo & Small Firm Conference offers an opportunity for solo and small firm practitioners to recharge their professional batteries. This year’s conference focuses on how to survive in a slumping economy. Take a short break from your practice to relax and learn in a resort setting while networking with other solos and small firm practitioners from around the state.

Still need to log those ethics and professionalism credits? Two-hour seminars are to fulfill both requirements.

Looking to retool your practice? Check out our series of programs designed to provide you basic information about substantive areas of law into which you can expand your practice.

Wondering how to manage your practice so as to maximize efficiency and profitability? Take advantage of the opportunity to learn about topics ranging from managing your employees to collecting your bills and managing your money.

Still need to log those ethics and professionalism credits? Two-hour seminars are to fulfill both requirements.

You can earn up to 13.0 MCLE credits

It’s all packaged together in a high-quality, economical, and family friendly event that will bring you many opportunities to spend time with other lawyers facing the same issues you face every day. Where else could you mingle at the largest statewide gathering of solo and small firm lawyers?

And it's all being offered at a great value!

You can earn up to 13.0 MCLE credits, including 2.0 hours of professionalism credit and 2.0 hours of ethics credit. All this for a low, low registration fee that includes overnight accommodations as well as two days of breakfast and lunch, a reception, and dinner on Monday evening. Bring a guest or family members for an enjoyable time at the Basin Harbor Club.

Learn - Network - Relax

The VBA Solo & Small Firm Conference is designed to offer you a relaxing opportunity to learn and network. Dress throughout the two-day event is casual. Come, relax, enjoy, and reinvigorate your professional life! The VBA Solo & Small Firm Conference is much more than a CLE program—it’s a unique event that you simply have to experience for yourself. When you do, you won’t want to miss it again. Don’t miss out! Sign up today!! CLICK HERE for program information and to register.

Vermont Bar Association • PO Box 100 • Montpelier • VT • 05601-0100

Thursday, April 16, 2009

Thursday April 16th

Sorry I haven’t written in a week but a lot of what’s been going on is happening behind the scenes. That makes it both difficult to talk about or sometimes impossible to. Most of the legislature’s time is being devoted to the budget and to the tax bill. In the past week the House passed both. With the capital construction bill already past the House and the transportation bill ready for debate, the legislature is moving close to adjournment. In fact, the Senate Judiciary Committee had no schedule this week and yesterday the Chair of the Senate Government Operations Committee said that they were done for the year.
While we wait for the Senate’s version of the budget and how it will be funded, two of the bills I’ve been working on are making some slow progress. H.11 is ready for a second round of Senate floor action after a surprise amendment was added to the bill on Tuesday. Senator Illuzzi introduced an amendment without prior notice to validate an assistant judge’s being a candidate for assistant judge and probate judge at the same time. While the Vermont Constitution lists some offices that cannot be held simultaneously, it doesn’t mention those two. There was, of course, no committee review of the concept as it was a floor amendment done without notice; it did not appear on the calendar. Whatever one thinks of that idea, the troubling portion of the amendment is the language that applies it retroactively to validate the actions of Essex County Judge Alan Hodgdon. The vote to add the amendment to the bill resulted in a 14-14 tie which was decided by the Lt. Governor in favor of Senator Illuzzi. That stopped the bill in its tracks.
The Senate then sent the bill to its Government Operations Committee for a quick review which the committee tried its best to do yesterday. Judge Hodgdon, his attorney Eric Benson and Senator Illuzzi testified about a pending judicial conduct board case against him for exactly this type of activity. I was surprised to learn of the case and was equally surprised at his waiving confidentiality and openly discussing it at the hearing. I know nothing more about it at this time. I was asked to respond to the bill and my remarks were limited to asking the legislature not to intervene in the judiciary’s regulation of courts and judicial officers. This is still in play as I write this early on Thursday. The Senate is next scheduled to go on the floor tomorrow morning at 8:30.
The trust bill, S. 86, remains in the House Ways and Means Committee which must review the fee section. Since that committee was shepherding the tax bill on the floor both Tuesday and Wednesday, they have had no time to take any testimony. We’re hoping to appear there this afternoon again depending on floor time. In the meantime, the House Judiciary Committee will be hearing from Paul Hanlon this morning at 11. They don’t formally “have” the bill but they want to review it before it hits the floor for debate.
Back to the budget for a minute, I want you to know that Vermont Legal Aid remains on the “short list” for the Senate Appropriations Committee to increase its funding if possible. You may recall that the House level funded VLA- that means after about $85,000 in rescissions. We’re hopeful that we can get something back in their budget this year. We’re still waiting for the revenue numbers which are due out next Friday, the 24th at 10AM. If you know any members of the Senate Appropriations Committee and/or if you are represented by any of them, now is the time to email or call them to advocate for access to justice.

Thursday, April 9, 2009


Sales tax on services may be back. Your swift action may soon be needed. I’m quoting a couple of paragraphs from an email that I just now received addressing the issue; this was from Wednesday afternoon. “They” is the Senate Finance Committee while JFO is the Joint Fiscal Office.

“They've (JFO) dusted off their list of potential revenue options for the committee, which includes the entire list of professional services not subject to the 6% sales tax (accounting included at NAICS code 5412 - estimated to raise $6.0 million) as well as the bank franchise tax, corporate income tax, personal income tax, and sales and use tax. It was a brief overview for the committee.
The Committee has been tasked at looking at potential revenue options to raise at least $24 million - without it all falling on the personal income tax surcharge. I say at least, cause there is concern that the April numbers will be lower than expected. The Committee has also been tasked with moving on something by next Friday (not sure how realistic that is) to allow for 10 days of Committee of Conferences before adjournment. As noted, the House's misc. tax bill has yet to arrive in the Senate so Finance will not have a lot of time when it decides to move on something. Senate Finance will likely amend the misc. tax with the option they ultimately decide upon. Again, nothing has been decided, the attached are just options that JFO can think of at the moment for potential new revenue.”
Legal services tops the revenue list at $14.2 million at a tax of 6%. You have to recognize that this is an easy target when the state is so far behind in revenues. Stay tuned.

More on the Judiciary Budget

I just returned from the House Appropriations Committee hearing on FY 2010 downgrades. As it relates to the judiciary here is the gist of the conversation. Rep Acinapura had a number of questions for Acting CA Bob Greemore. Remember this is all about expecting revenue downgrades later this month. The numbers are due out on April 24th. All that’s being said thus far is that the downgrade will be between $10 and $50 million. Right now revenues are below the three month target for the first quarter. That’s really helpful in crafting a budget!
Anyway the questions this morning were these:
Is there a proposal to eliminate probate courts?
Is there a proposal to eliminate assistant judges?
Should probate registrars “certify” uncontested matters?
Should contested matters be tried in the superior court?
Should small courthouses (Essex, Grand Isle, Lamoille) be closed?
Should there be one court clerk/manager in counties with shared courthouse space?
Should the state recapture the money paid to counties?
Should court functions be consolidated?
Greemore responded by saying that all of these will be considered by the Commission on Judicial Operation. And that’s exactly why you’ve been hearing from the VBA about getting involved in this discussion. If you’re not at the table you’re probably on the menu!
Anyway, he went on to add the issue of “regionalizing” probate courts. Of course, that would require upgrading technology to allow that to happen.
He also cited the committee to 24 VSA 71(a), the section that requires the state to pay counties for space rent if state courts re housed in county buildings.

Thursday morning, April 9th

Yesterday the House Commerce Committee finished its work on S. 86, the trust code, when it recommended passage with a vote of 11-0. This bill has moved with unusual speed through the legislative process due in large part to the expert witnesses, Paul Hanlon and Mark Langan, who guided the committees through a complete understanding of the complexities of the code. I expect the bill to make a brief stop in House Ways and Means to review Section 30, the fees portion of the bill. Since Section 2 of the bill vests the probate court with jurisdiction over inter-vivos trusts (to accompany its jurisdiction over testamentary trusts) a fee schedule had to be written for the new filings. Here is that schedule from Sec. 30 of the bill:

(a) The following entry fees shall be paid to the probate court for the
benefit of the state, except for subdivision (17) of this subsection which shall
be for the benefit of the county in which the fee was collected:
* * *
(9) Testamentary trusts of $20,000.00 $50.00 150.00
or less For all trust petitions, other than
those described in subdivision (11) of this subsection,
where the corpus of the trust at the time the petition
is filed is $100,000.00 or less, including petitions to
modify or terminate a trust, to remove or substitute a
trustee or trustees, or seeking remedies for breach of trust
(10) Testamentary trusts of more than $20,000.00
For all trust petitions, other than those
described in subdivision (11) of this subsection,
where the corpus of the trust is more than
$100,000.00, including petitions to modify or
terminate a trust, to remove or substitute a
trustee or trustees, or seeking remedies for
breach of trust $100.00 $250.00
(11) Annual accounts on testamentary $30.00
trusts of more than $20,000.00
* * *
(21) Petitions for the removal of a $50.00
trustee pursuant to 14 V.S.A. § 2314(c) of trusts
of $20,000.00 or less
(22)Petitions for removal of a $100.00
trustee pursuant to 14 V.S.A. § 2314(c) of trusts
more than $20,000.00
(23) Petitions concerning advance $75.00
- 1226 -
directives pursuant to 18 V.S.A. § 9718

I’m heading up to a hearing in House Appropriations involving the judiciary. Interestingly, the schedule reads “Additional FY10 Base Budget Reductions”. A few days ago, I wrote that the judiciary’s budget was reduced by $550,000 and not the 1 million the governor recommended. It looks like the House is giving this a second look, even though the budget has passed the house and is now in the hands of the senate. Everyone expects that, come April 15th, state revenues will be lower than expected and hoped. All branches, departments, etc. will no doubt be revisited to look for additional savings. I’ll get back to you later today on the result of this morning’s conversation between Bob Greemore and the committee.

Tuesday, April 7, 2009

Update on Legislative and Judicial Activities

Yesterday, the House Commerce Committee met again to continue its review of S. 86, the trust bill. And once again Paul Hanlon and Mark Langan “walked” the committee through the bill. Although the committee had set aside three hours to finish the bill, it actually took less than that. Here’s Paul’s summary of what happened:
Mark Langan and I finished our testimony before the Commerce Committee today, with Dan Kimbell, and Bob Paolini offering support. Chairman Kitzmiller said he wanted to delay a vote on the bill until a time when the full committee could be there (today was another special committee meeting, and not all members were present). He expressed a desire to hear from Mike Hoyt of Legislative Council about technical corrections, and he said he would like to try for unanimous approval from the committee. The Committee will meet again on Wednesday to discuss the bill. They hope to convene between 10:30 and 11:00 when the House finishes its floor actions. I said I would be there in case there are any questions, and Dan said he would come also. Mike Hoyt offered to send over his technical corrections (I think I have seen them all already anyway) so that there are no surprises.
I had to leave the hearing early to attend the meeting of the Vermont Commission on Judicial Operation. This is the legislatively created commission to study and recommend changes to the present structure of our court system. The VBA Board of Managers has said repeatedly that it wants lawyer input before any changes are made and before even any proposals are floated. Accordingly, yesterday, the conversation focused on meetings with county bars throughout the state to hear from you any suggestions you might have that would advance the delivery of justice in a fair, cost efficient manner. Yesterday the Commission discussed guiding principles for the administration of the judiciary. As soon as I have the final version of those principles I will post them on this blog. They’ll be used to guide the conversation to address these issues regarding the following areas:

• Consolidation of staff, including clerks of courts, paid by the state within the judiciary budget and consolidation of staff functions, across courts in individual counties and statewide;
• Regionalization of court administrative functions, both those now performed at the state level and those performed at the county level;
• Use of technology, including video technology, to reduce unnecessary expenditures, including transport of prisoners, while improving access and maintaining the quality of adjudication;
• Flexibility in use of resources to respond to the demands on the judiciary overall and particularly in instances where the amount and nature of demand changes;
• Reallocation of jurisdiction between courts, consistent with effective and efficient operation, and
• Any other idea for the efficient and effective delivery of judicial services.

Thursday, April 2, 2009

Vermont Legal Aid

Vermont Legal Aid did not receive any increase in its state funding in the house version of the FY 2010 budget. This follows two rescissions during 2008 that cost VLA $170,000! That figure is reached because there is a 50% federal funds match to general fund dollars used for legal services. Despite the efforts of VLA’s Executive Director, Eric Avildsen, the VBA and many of you, we were unable to prevent those rescissions or increase funding in the house version of the budget for next year. The net result is that VLA’s funding is less than it received from the state in 2001.
The budget will soon be in the hands of the senate. The Senate Appropriations Committee is generally favorable and sympathetic to VLA. Now is the time for you to get involved to help guarantee access to justice for all Vermonters. Call the members of the Senate Appropriations Committee: Senators Bartlett; Kitchell; Sears; Miller; Snelling; Illuzzi; and Shumlin. Tell them it’s vital that VLA is able to carry on its work.

April 2,2009

Yesterday I was away from my desk and at the Statehouse most of the day and didn’t get to blog at all. There is a lot happening and it’s happening quickly as May 8th is closer than one thinks. The House Commerce Committee returned to S. 86, the trust bill yesterday, taking about an hour of testimony from Mark and Paul again. The committee is very interested in this discussion and is the one committee of the house that has some expertise at understanding uniform bills. Earlier this year, that committee advanced the Uniform Limited Cooperative Associations bill as well as a uniform investments bill. Mark and Paul will return sometime next week although no date has yet been set.
Schedules are fluid today and tomorrow for the house as the budget and civil marriage are hitting the floor for debate today.

Yesterday the Senate Judiciary Committee unanimously confirmed the reappointment of Matt Valerio as Defender General, Magistrates Gartner, Hoyt, and Harlow; and confirmed the appointment of Joe Benning to the Human Rights Commission. The senate needs to vote on these but there doesn’t appear to be any opposition to any of them.

A Conference Committee on the 2009 budget adjustment act finally signed an agreement yesterday afternoon. That conference report now needs to be approved by both chambers before heading to the governor for signature (or veto). You may be interested in language in the bill that affects the probate courts in the southernmost four counties. Section 118 of the bill merges the Manchester Probate District into the Bennington District, with an appropriate adjustment to the judge’s salary in Section 119.

Here is the language that controls the other three counties:

(b) If a judicial position becomes vacant in the probate districts of Fair
Haven, Hartford, Marlboro, Rutland, Westminster, or Windsor prior to
February 1, 2011, the county containing the district with the vacant judge
position shall become a single probate district county effective upon the date of
the vacancy. The remaining probate judge in the county shall become the
probate judge of the single district probate court for the remainder of the
current term. Upon consolidation, the judge of probate shall be paid
$59,321.00 for the Windham probate district and $75,859.00 for the Rutland
and Windsor probate districts.

The 2010 budget bill on the house floor today for debate also contains some language of interest to the judiciary. It amends 4 VSA 25 to make it optional for the supreme court to close courts on furlough days. The present statute requires the court to do so, and those days must the same statewide. So, if furlough days are required for budget reasons, the court will now have some flexibility as to how they are handled. The bill also contains this language bringing the judicial branch in line with the executive branch on salary reduction:

(a) For compensation paid from July 1, 2009 to June 30, 2010, the supreme court is authorized to reduce salaries established by statute that are paid by the judicial department appropriation up to 5 percent and reduce the hourly rates of non-bargaining unit employees earning in excess of $28.85 per hour up to 5 percent.

Tuesday, March 31, 2009

March 31, 2009

On Monday afternoon, Paul Hanlon, Mark Langan, and trust officer Chris Chapman spent nearly three hours with the House Commerce and Economic Development Committee explaining S. 86, the Uniform Trust Code bill. They were well received but only managed to get through five of the twelve sections of this 123 page bill. More testimony is planned for Wednesday morning. This week’s house calendar is pretty fluid as of this writing. The marriage equality bill is due out of committee today; the 2010 budget was voted out of committee yesterday.
According to the rules of the House, those bills will appear on the Notice Calendar on Wednesday and will move to the Action Calendar on Thursday. Today, the transportation bill, which includes a five cent gas tax hits the house floor for debate. I expect the next few days to be taken up with floor debate leaving little, if any, committee time to hear testimony and advance bills.
The Senate Economic Development Committee has released S. 137, the long awaited economic development bill. I advised our Environmental Law Section Chair, Gerry Tarrant, as well as the Environmental Court Judges about some language that they needed to review. I just got a copy of the bill as released from the committee and I’m looking at it to see if those concerns were addressed.
I just learned of another part of that bill that (sec. 109) that amends VRAP 37 by changing the date interest begins to run from the date of judgment to the date the claim was filed. I don’t know the history of why this appears in a stimulus bill and who may have testified (if anyone) either in favor or in opposition. I’ll try to find out.
Finally, for now, the House Appropriations Committee has decided to not follow the governor’s recommendation to cut $1million from the judiciary’s budget. Instead it cut $550,000. I checked in with Bob Greemore this morning who tells me that amount can be made up by a 5% pay cut for all employees earning >$60K. It would still require the half day closings that began in October but the full day furloughs will no longer be necessary. A partial victory I’d say.

Monday, March 30, 2009

Monday March 30th

S. 54, the clean energy assessment districts bill is out of the Senate Finance Committee and on the Senate Notice Calendar. You can read the Natural Resources Committee version along with the Finance Committee amendments here:
Go to page 781.
Last Friday afternoon the Judicial Nominating Commission held its organizational meeting in Montpelier. The Commission drafted an application that must be submitted by all applicants, even those that previously applied by submitting letters of interest, CV, etc. Look for an email announcement later this week. It will contain a link to the application that will be posted on our website.
In an unusual move, the House Commerce Committee is convening today at 1 PM to begin testimony on the S. 86, the Uniform Trust Code. I expect Paul Hanlon will be on hand to walk the committee through the senate passed bill. Hearings will continue on Wednesday morning and there is some time also available on Thursday. It’s possible that this major bill, the product of two years of work, will become law this year.
If you haven’t responded to last week’s email asking that you complete a short survey about the VBA and its services please do so as soon as you can. It’s important for us to know what you need the VBA to deliver to you. Thanks.
Later today I’ll be meeting with the Chief Justice to continue our discussions about the current budget crisis as well as the work of the Vermont Commission on Judicial Operation. The Commission is scheduled to meet next Monday at which time I hope we see a plan for its conduct of focus groups throughout the state to hear input from the stakeholders affected by any type of judicial reorganization. I’ll post something as soon as I have it.

Friday, March 27, 2009

March 27, 2009

The Senate Judiciary Committee spent the morning interviewing five candidates for confirmation or reconfirmation to different positions. First, Defender General Matt Valerio was interviewed. He's been nominated by the governor for his third term in that position. I think he is now the longest serving DG. Second up was Joe Benning who was interviewed as part of the confirmation process for his seat on the Human Rights Commission. Then the committee met with three magistrates: Gartner, Hoyt, and Harlow. Each made short presentations, answered a few questions and that was it. The committee is planning to vote on its recommendations to the full Senate next Wednesday.
I'm trying to get witnesses on the schedule for the House Commerce Committee on Monday and Wednesday of next week on S. 86, the Uniform Trust Code. The committee is moving quickly to consideration of the bil the Senate just sent them ealier in the week. Maybe the legislature is saerious about a May 8th adjournment.
Word this is that the House Appropriations Committee is balking at the $1 million cut in the judiciary's budget requested by the governor. But it is still early. I think the hope is that the budget will be ready for debate at the end of next week.

Thursday, March 26, 2009

Thursday 7:30 AM

Well, I spent the better part of the afternoon on Wednesday in the Senate Finance Committee where they were at work on S. 54, a bill relating to clean energy assessment districts. What the bill is about is this: municipalities could ask its voters to designate it as a clean energy assessment district. Should the voters approve, the municipality may incur indebtedness to finance renewable energy projects. Then, if a property owner borrows from the fund created by the municipality and enters into a written agreement, a special assessment will be entered on that property and recorded in the land records.
This assessment, like some others, takes precedence over a mortgage, even an existing one. Here comes the rub: the Vermont Bankers Association has a problem with that! Early this month I asked Hal Miller to look at H. 161, the House version of this bill. The bill was rewritten in the Senate Natural Resources Committee before it went to Finance; so the house bill Hal, Andy and Mark looked at is different from the one that is advancing.
Anyway, the bill can be read on the Senate Calendar beginning on page 643 here:
Take a look at Section 6, 24 VSA 3262 (a)-(f). I found it somewhat confusing when trying to figure out the reserve fund language along with the assessment running with the land in the event of foreclosure or transfer of title. What happens upon a sale of property that has been improved with the use of these funds? If the assessment has an unpaid balance, the obligation runs with the land. OK, so the new owner pays it off. But, didn’t the new owner likely pay a higher price because the improvements were made? Is the new owner paying twice?
Finance is returning to this bill this afternoon at 2; I hope to get back there to hear the rest of the testimony.

Wednesday, March 25, 2009

Retention vote outcome

Here are the numbers:
Judge Crawford: 145-1
Judge Teachout: 137-7
Judge VanBenthuysen: 141-3
Judge Grearson: 143-2

It always surprises me that some legislators will vote No on a judge's retention even though there is no debate and nothing negative in that judge's survey results.

Wednesday March 25th

I just returned from an 8:30 AM joint assembly on judicial retention. The general assembly heard positive reports from committee members on the retention of Judges Crawford, Teachout, VanBenthuysen, and Grearson. The vote in committee to recommend retention of each judge was 8-0. There was no floor debate. The secret ballot was taken but, in an unusual move, the joint assembly was dissolved without the votes being read. Each chamber will learn of the outcome when it convenes, the House today at 1; the Senate on Friday at 8:30 AM. I’ll try to get the vote totals later today and post them.
You may have seen today's Burlington Free Press article about the state budget issues. That article listed the judiciary's "$1 million problem". The administration and the judiciary remain about that much apart in their requests for 2010 funding. Failing to add the $1 million would result in 12 court closing days (furlough days) beginning July 1, 2009. That would include ALL employees of the judicial branch, not just those earning more than $60K per year. Now is the time to talk with your legislators and let them know that justice cannot be administered to Vermonters in that way.

Tuesday, March 24, 2009

Property Transfer Tax Returns

In response to issues that have been raised about the proposal, the Tax Department has prepared the following Q and A. There is another meeting next Monday so any comments would be appreciated. It would particularly helpful if you could think of all the situations where a short form could be used (easements would be the most common).

Liam L. Murphy, Esq.

Issues and Solutions for an On-line Property Transfer Tax System

Issue 1: The new 4 page form is too much paper and requires too much space for storage.

Solution: When we transition to the new on-line system it will be capable of printing out a one or two page document with all required information that could be similar to the old two page Property Transfer Tax Return (PTTR).

Issue 2: Many Town offices are not set up to store electronic information. Also there is a concern by attorneys about how the PTT form would be signed by buyers and sellers.

Solution: Seller’s attorney or closing agent would print a paper version of completed return to bring to the closing and then submit this electronic document to the Department via the on-line system. Buyer(s) and seller(s) would sign form as is presently done and original form would be sent to Town for recording along with Tax Department receipt and deed. Clerk would use this form for recording and municipal records but would fill-out an electronic acknowledgement that would be in that Town’s queue that can be brought up using the document number on the receipt. Clerk’s acknowledgement would use an electronic signature.

Issue 3: Use of the system should not be mandatory.

Solution: At least initially, the use of the system will not be mandatory for any parties until the system had been thoroughly tested including actual field experience. At some point, some requirements for use may be mandated though it is likely that a manual system will remain in place for non-professional preparers.

Issue 4: Use of the ACH credit and wire transfer payments will result in a transfer fee that will have to be borne by the parties to real estate transaction.

Solution: The Department was not proposing ACH Credit or Wire Transfer as payment options. ACH debit / electronic check payments which normally do not have payment fees associated with them is the proposed method of electronic payment. This is the same process as paying your State income tax using an electronic transfer, and there is no charge to the payer under that system as well.

Issue 5: The Department is saying that all fields on the form will be mandatory and a PTTR cannot be electronically submitted unless it is completed in full. This doesn’t make sense as not all the fields are necessarily applicable to some types of transactions so why/how are they to be filled out.

Solution: This may be true so the Department needs to work with preparers to identify the types of transactions where this is the case and identify the unnecessary fields. The system can be set up in a way that will allow a preparer to select a transaction type where selected fields need not be filled out.

Issue 6: While it occurs infrequently, what happens if after the closing the transaction is terminated and the property does not transfer. How does the buyer get the PTT payment back in a timely manner.

Solution: The ACH debit / electronic check would be transmitted to the system at the same time that the electronic form is submitted to the Department but the system will be set up to delay the actual transfer of the funds for PTT payment for 3 to 5 days. If the property does not transfer, the Department should be notified and the ACH debit process will be terminated or if the payment has been made, the Department will process a manual refund.

Issue 7: Will the use of the electronic submission of PTT information to the Department result in the information being immediately added to the Department’s PTT database.

Solution: When the PTT information is electronically submitted it will not immediately be incorporated into the Department’s PTT database. It will remain in a “pending” status until the Department has received the electronic acknowledgement from the appropriate Town clerk. Receipt of the acknowledgement is notice that the transfer has been recorded. At that time, the acknowledgement information will be added to the PTT information submitted earlier and the information will be electronically transferred to the Department’s database. The electronic “capture” of the PTT information will not only create efficiencies for the Department because it will eliminate the need to manually process the information but it will also eliminate data processing errors resulting in more accurate information regarding the transfer.

Issue 8: What happens if the on-line system is “down” and you cannot obtain a receipt.

Solution: Occasionally the system may require maintenance that will prevent people for using it but maintenance activity generally will be scheduled at times (nights and weekends) when there would typically be little activity and would be announced prior to shut-down so users can plan accordingly. There will be little chance that the system will not be available for unannounced, prolonged periods of time. In the event that this does happen, the Department would lift any mandatory use requirements, if any, and all preparers could use hardcopy forms.

Issue 9: If the Department has an electronic database with grand list information for nearly all properties in the State, why can’t some of the fields on the PTTR be automatically completed using the State’s grand list information.

Solution: In most cases, it can and it is our intent to design the system to accommodate this. If the preparer enters the right SPAN (School Property Account Number) associated with the property, the system should be able to pull information such as property location and acreage and complete these fields automatically. Of course, in situations such as subdivisions where no SPAN or grand list entry exists, the preparer would have to complete these fields manually.

Issue 10: If the Department can provide automatic data entry for completing some fields on the PTT form, why can’t the system to set up to do the same things for the acknowledgement section to help the Clerks.

Solution: It can and it is our intent to design the system to do this.

Issue 11: Does the Department intend to link the new PTT system to any other systems.

Solution: Yes. To both assist in correctly completing the PTT form as well as assist buyers of property enrolled in the current use program, we intend to link the Department’s current use database with the new PTT system. Once again, using the SPAN to identify the property, the system can be structured to identify instances where the appropriate current use enrollment designation on the PTT is checked for enrolled properties. This would greatly reduce the relatively frequent error that now occurs where the PTT form does not indicate the correct current use enrollment status. This will benefit not only the preparer but the new owner of a current use property as failure to correctly indicate this status can jeopardize the continued enrollment of the property. Further, the new system also can make available a printable document outlining the statutory current use requirements so that owners can maintain the eligibility of the newly purchased property after the transfer. This document could be given to the new owner as part of the closing process.

Issue 12: Since the form includes the seller’s and buyer’s SSNs, how will the confidentiality of this information be protected.

Solution: The on-line PTT system will offer more protection of confidential information like SSNs than the current system. When the preparer completes the electronic return they will need to provide SSNs for all sellers and buyers. This information will be part of the electronic transmission of information to the Department but when the preparer prints out the form to take to closing, the system will not include any SSN information on the hardcopy form that goes to the closing and then Town. Further, all communication between the user’s PC and PTT on-line system as well as the electronic transmission to the Department of the completed return will be over encrypted connections.

Tuesday March 24th

The Uniform Trust Code (S.86) has passed the Senate and should be introduced in the House on Thursday. Also the Senate advanced to third reading H. 11, the spousal share bill that passed the House in January.
A quick conversation with Peg Flory this morning leads me to believe that H. 328, the foreclosure re-write will probably have to wait until 2010. Tomorrow the Joint Assembly on Judicial Retention will convene at 8:30 in the House to vote on the retention of 4 judges. It is expected to be non controversial.

Friday, March 20, 2009

Friday- the day the Senate Judiciary Committee voted 5-0 to approve the "gay marriage" bill

There has been discussion in the Tax Dept. about electronic filing of property transfer tax returns. Liam Murphy attended the meeting and sent the following email report to the Property Law list serve. In the event you are not on that list, here it is:
As you may have heard the Tax Department is proposing legislation to require electronic filing of the PTTR and electronic payment of the tax directly to the Department. A copy of the proposal legislation is attached and a link to the Department website with the proposal is

The proposal is to make this effective next year in 2010.

The basic reasons for the proposal are: 1) to get the money into the state coffers faster. Currently many town clerks hold onto the checks for a long time before forwarding them to the state; 2) many forms are not currently completed properly or in full. The electronic version will mandate that all appropriate boxes be filled; and 3) electronic filing will mean that the data will be immediately transferred into the state's data base. Until recently the data on the PTTR was retyped into a database. The new electronic forms were designed so that they could be scanned and the information taken from the scanned version (that is why the new forms are 4 pages so that the boxes are big enough for the scanners to read.

I attended a meeting on Monday to hear about the project and provide initial comments. The meeting was attended by Tax Department officials, 3 Town clerks,a representative of the Vt League of Cities and Towns, a representative of the Bankers Association, an assessor and the computer company which is designing and constructing the project.

As I understand the current proposal, upon closing the form would be filed electronically and the tax paid electronically (by an ach transfer or electronic check). A record of filing or a "receipt" would be issued which would be attached to the paper copy filed with the Town Clerk office showing that the tax form was filed. When the deed or document is recorded the Town Clerk would provide recording information electronically to the Tax Dept in connection with the return. In addition an charge of $5 would be made for the privilege of filing electronically.

Some questions raised were

--this system contemplates filing of the form and payment of the tax before recording of the deed and what happens if the deed is not recorded (an intervening lien is found before recording and the deal is stopped) or the deed is rejected. What process will there be to undo the filing and get the tax back in an expeditious manner.

--this system contemplates that a record of filing and payment or receipt be provided to the clerk at the time a document is delivered for recording. Will the clerk be prohibited from recording without such a receipt? If so, what about those without access to a computer system to file electronically, especially those who may not use an attorney? What about transactions where no tax is due? What about Mobile Home transfers which often occur without a PTTR being prepared? What about Timeshares?

--this system contemplates the form being prepared by the Seller's attorney, being filed by the closing agent who would also pay the tax and the town clerk adding recording information to the return after recording. The system will have to provide access by multiple people at different computers at different times. Is this system going to be reasonably and technically possible? What protections would there be to insure the form is not changed between the various steps. Since the forms will include SSN, how will the privacy of such information be protected?

--what will be the additional costs in terms of setting up an electronic payment system?

--what happens if the system is down and therefore you cannot obtain a receipt?

--what about the signing of the electronic form by the sellers and buyers which would be required to obtain the certifications required in the form?

--is this going to be mandatory for everyone? just for closing agents? just for attorneys?

Since this was my introduction to the proposal, I told the group that I am sure my colleagues would have many more questions and issues. Therefore I would appreciate your sharing your thoughts and questions which I will forward to the Department for consideration. Of most immediate concern is the legislation since the Department is trying to get this passed this legislative session.

After receiving further comments from the Bar and the other parties, the Department intends to hold another meeting to discuss the questions and issues and I will keep you informed of the date and time in the event you wish to come and comment.

Fire away!


Now, of course, is the time to weigh in on this if you have an opinion to share.
Also, I want to remind readers that the Commission on Judicial Operations wants to hear from us on our ideas to make the judiciary more efficient. It's no surprise that a 19th century model needs some updating in order to deliver justice in the 21st century. You should have received from the VBA a letter from Eileen Blackwood and me on Tuesday March 10. If you need another copy contact the VBA. Basically it is a call from Eileen and from me for you to contact either of us with your suggestions.
Thanks. Have a nice weekend. I'll be back next week.

Thursday, March 19, 2009

Thursday AM

I'm heading into House Education with the Secretary of State and the Social Studies Coordinator from the Dept. of Education. We've been asked to update the committee on the progress of civic and law related education. As you know the VBA has been very active in this type of outreach. Our President Doug Molde and our Public Education Section Chair Mike Palmer are big supporters. And VBA staff member Kevin Ryan has been nationally recognized for his work. This afternoon I'll be sitting in on House Judiciary's hearing on judicial branch restructuring. Acting Court Administrator Bob Greemore will be updating the committee on the Commission on Judicial Operations work. Take another look at the memo from Eileen Blackwood and me from last week and get involved in this discussion.

Thursday March 19th

Yesterday, even as the statehouse focused its attention on the marriage bill, there were three other events of interest to the VBA. First, Defender General Matt Valerio presented his office's budget to the Senate Appropriations Committee. His request was uncontroversial and actually the conversation drifted off into other areas. As a nice compliment to Matt, the Chair asked him, somewhat facetiously, if he would do a seminar for other agency heads on management of budgets! Matt was followed by Vermont Legal Aid Executive Director Eric Avildsen who spoke about FY 2010 funding for VLA through the Agency of Human Services. VLA doesn't appear directly in the state's budget but AHS contracts with VLA to provide representation to state hospital committed people,etc. The balance of the state funding goes for general poverty law work. VLA has been funded since 2001 at just about $1 million. In the last three years, VLA with VBA support has lobbied for and won small COLAs of $25,000 each year. VLA's state funding is always matched with equal federal funding; so, that meant an increase of $150,000! Then the rescissions of 2008 came and VLA lost a combined total of $170,000; they're now back at 2001 funding. Eric made his most passioned plea to the committee that I've ever seen him make. His most imporatnt point was that the administration made the rescissions without ever consulting with him on caseloads, etc. The committee heard him and said "we'll take care of you". It was some reassuring news in these bad times.
While this was going on, Paul Hanlon was across the hall in Senate Finance witnessing their 7-0 vote to send S. 86, the Uniform Trust Code to the full Senate for passage. It's the beginning of the ennd of a two year project to get our trust laws updated.

Wednesday, March 18, 2009

Wednesday March 18th

For those of you that either worked on or followed the discussion of the foreclosure committee that worked over the summer and fall to draft a bill, it has now been introduced and can be found here:
The bill is in House Judiciary and we hope it gets some attention this year.

Tuesday, March 17, 2009

the legislature returns

It's Tuesday and the general assembly is back in town. By now you've heard that the equal marriage issue is in the spotlight under the golden dome. The Senate Judiciary Committee has nothing but that bill on its calendar all week. The statehouse is full of visitors who want to be heard on both sides of this issue. I just returned from a hearing in Senate Finance where Mark Langan and Paul Hanlon spoke for the fourth time on S. 86, the Uniform Trust Code. This time their presentation addressed two topics. First, since transferring jurisdiction to the probate courts for inter-vivos trusts is new, a fee schedule had to be created. The filing fees proposed to the Acting Court Administrator track those for testamentary trusts. Also, Paul responded to some concerns raised by the Attorney General on charitable trusts. The bill seems to be moving forward despite these issues and Finance hopes to vote it out tomorrow. Then a stop in Senate Judiciary will delay action until it is reviewed there. Hopefully the marriage bill will be in the House by then so trusts aren't slowed down.

Tomorrow I expect to listen to the Defender General and the Executive Director of Vermont Legal Aid make their budget pitches to the Senate Appropriations Committee for FY2010 funding. VLA suffered a big hit in the two rescissions at the end of 2008. Combined with federal matching funds, VLA lost about $170K! I'll report at the end of the day.

Wednesday, March 11, 2009

legislative reports

For those of you that have been readers of my "This Week in the Legislature" reports, you'll see a different format being used when the session resumes next week. We've decided to try a blog and we're calling it, cleverly, VBA Blawg. Check in next week.