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.

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!

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 www.vermontjudiciary.org, 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 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.

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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.

SALES TAX ON LEGAL SERVICES!!!!!!!!!

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:

§ 1434. PROBATE COURTS
(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.

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.

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.