Tuesday, December 21, 2010

Judicial Retention 2011

This upcoming legislative session will see 15 judges stand for retention- 10 superior judges and all five justices. The superior judges are:
Robert Bent
Cortland Corsones
Thomas Devine
Theresa DiMauro
Harold Eaton
Mark Keller
Michael Kupersmith
Linda Levitt
Gregory Rainville
John Wesley
This happens, of course, every six years. What is interesting about our statute is that a judge “inherits” the timing of his or her predecessor. So, every new judge doesn’t necessarily get an initial six year term; it’s the “seat” that has the six year term, not the individual. And when the constitution was amended to create this method of retaining judges, the entire Supreme Court was put on the six year cycle.
This results in an immense amount of work for the four representatives and the four senators who make up the Joint Committee on Judicial Retention. Their duties on this committee are in addition to the house members’ primary committee work and the senators’ two committee assignments. The retention committee works evenings, usually two nights a week until its work is done. And the judges must travel to Montpelier, probably three times, after a day on the bench. They are interviewed by the committee members; they usually attend a public hearing; and they return to answer follow up questions after the public input.
The House Speaker and the Committee on Committees (in the Senate) will appoint the committee members by the end of January. Although the committee is supposed to finish its work and bring its recommendation to a joint assembly by the tenth week of the session, that date will no doubt be rolled out by resolution of both chambers.
Some of you may already have been surveyed by legislative council if you’ve appeared before any of these judges. Stayed tuned to this blog for schedule updates as we get them.

Monday, December 20, 2010

Happy Holidays

It’s just about time for the legislature to return and for me to post regularly on this blog. But I wanted to update you on the recent election. When the new session convenes we will see 18 lawyer-legislators, 12 in the House and 6 in the Senate. Here’s the list. In the House: Betty Nuovo; Willem Jewett; Michele Kupersmith; Shap Smith; Duncan Kilmartin; Anne Donahue; Maxine Grad; Janet Ancel; Richard Marek; Sarah Buxton; Sandy Haas; and Tom Koch.
In the Senate we’ll see Bob Hartwell; Joe Benning; Sally Fox; Vince Illuzzi; Peg Flory; and John Campbell.
As you know by now taxes and restructuring the tax system will be high on the agenda in January. You have probably heard that the Blue Ribbon tax Structure Commission will be recommending the extension of the sales tax to services, while lowering the tax rate. Yes, as of right now, that will include legal services, at least some legal services. There is a long way to go to passing any legislation but it’s time for a heads up here; your business operations may have to undergo some fast changes. The VBA will be monitoring this issue and will keep you informed. Be prepared to be asked for help in contacting your representative or senator should I ask. Preserving access to justice for Vermonters has been a goal of the VBA for many years and now is not the time to make that access prohibitively expensive.
As always thanks for reading and following this blog. My best wishes for the holiday season.

Monday, May 10, 2010

Updates on bills passed

S. 173, the technical corrections bill to the Vermont Trust Code was signed by the governor on May 7, 2010. The final bill can be read here:
H.590, the foreclosure mediation bill contains language taken from H. 476, introduced but not acted upon. Here is the statement of purpose of that bill which now appears as Sections 6-11 in H. 590:
Statement of purpose: This bill proposes a number of changes related to the
laws governing real property. The bill proposes to:
(1) clarify that a power of attorney with respect to a real estate transaction
that is validly executed in another state is also valid in Vermont;
(2) add proper witnessing to the list of defects that is cured if an instrument
has been recorded for at least 15 years;
(3) codify the Vermont supreme court’s decision in Nelson v. Russo, 956
A.2d 1117 (2008), that in order to renew a court judgment, a plaintiff must file
a new and independent action instead of seeking to reopen the original action;
(4) require that recording of a copy of the complaint in actions to foreclose
judgment liens be in order for the action to extend the duration of the lien; and
(5) establish a 15-year limitations period after which enforcement actions
or other proceedings may not be brought relating to the failure to obtain or
comply with the terms or conditions of required highway permits, including
so-called “curb cut permits.”

Saturday, May 8, 2010

Update #2- Saturday 8:00PM

Restructuring is done! This afternoon the Senate approved the conference committee report by a vote of 29-0-1. At about 6:00PM, the House joined the Senate in voting 124-1 to finalize the restructuring bill. The legislative part of unification is now; the implementation part looms. As I wrote this afternoon, you can check the Journals of both chambers on Monday for the complete text of the bill. Thanks to all of you that have read this blog; followed the progress of this and other issues the VBA worked on this session; and thanks to those of you that weighed in with comments. I'll keep posting things here but they will probably be less frequent now that the session is over. I'll be traveling to the ABA Pro Bono Conference next week and may follow that with a couple days off.

Restructuring Update- 3:00PM Saturday

A few minutes ago House and Senate conferees (Sens. Sears, Campbell, and Nitka) signed the conference committee report on H. 470! It must head first to the Senate floor for action and then to the House. We hope it will do so later today. There is no link to it yet on the legislature’s website. On Monday, if it is adopted by the Senate later today, it could be read in its entirety in the Senate Journal of today. I’ll post a link on Monday to an outline of the agreement. This is an historic achievement and moment in our state’s history. I’m still not sure that many people understand that this is a redesign of a branch of government. We’ve heard much about “Challenges for Change” but much less about judicial restructuring. Without quoting our vice president, this is a big deal! Congratulations are due to the members of the Senate and House Judiciary Committees as well as the leadership of both bodies for keeping the focus on H. 470. Thanks for reading.

Saturday morning May 8, 2010

The foreclosure mediation bill has now passed both chambers and will soon be on the governor’s desk for signing. Until it is signed it will not have an Act number. It can still be read on either the Senate or House Journals of Friday, May 7th. Once again I urge everyone that may be interested in attending the CLE on June 7 and 8 and doing this work to read and fully understand what the bill requires.
Late Friday, the House finally refused to concur with the Senate’s version of judicial restructuring and appointed a committee of conference to work out the differences on H. 470. The House conferees are Reps. Lippert, Jewett, and Koch. Notice of that arrived in the Senate around 8PM; the Senate has not yet made its appointments but that should hopefully happen early today. Both chambers are in session beginning at 9:30. When there is some news and a break in the action I’ll run over to the VBA and update you. Have a nice Saturday.

Friday, May 7, 2010

Friday, May 7, 2010

The conference committee report on H. 590 is on the Senate Calendar this morning. There shouldn’t be any problems with getting a rules suspension; passing it in the Senate and messaging it to the House. There another rules suspension is needed to bring it up for a vote. Assuming all goes well, and this does not get mixed up in other issues, the bill should pass today. If you want to read it, it is printed in full in the Senate Calendar. Again, if you are interested in the June 7 and 8 CLE program you really do have to read the bill to understand the nature of the work and what will be required from the “mediator”. Now I put that in quotes because, after you read the bill, you’ll see that it contemplates a somewhat different role for the mediator.
So far no action on H.470; at least none to report on here.
More later.

Thursday, May 6, 2010

Thursday, May 6, 2010

Here is the link to H. 470 as it passed the Senate:
Although there is no formal conference committee yet appointed negotiations between the House and Senate are taking place. It’s possible that the House could vote on the Senate-passed version “with further proposals of amendment” and return it to the Senate for its approval. My guess is if the talks are productive that’s what will happen. We’re still waiting. But I’d suggest you read the bill as the final version will probably not differ much from what has already passed both chambers.
H. 590, foreclosure mediation, is in conference and the House has drafted a few minor changes to the Senate’s version, which I expect the Senate conferees will adopt. Once that conference report is signed it will go to both chambers for action. Since it’s a House bill the Senate must approve the report first. Then final action by the House will send the bill to the governor for signature. Stay tuned.

Tuesday, May 4, 2010

Tuesday May 4, 2010

Today was by far the most interesting day I’ve spent in the statehouse this session. The full Senate started its morning with third reading of H. 470. Third readings are usually pro forma but today there were a number of amendments to be voted on. Some were procedural but two were substantive and important. The first, offered jointly by Senators Shumlin, Sears, Illuzzi, and Mullin, would strike the provision in the House passed bill that requires probate judges to be lawyers. This provision was a proposal of the Commission on Judicial Operation and was supported by the VBA in its position paper. Senator Sears said, on the first day the bill arrived in his committee, that he would vote against the bill if that provision remained. He tried to get the committee to remove it but lost in a 3-2 vote. Going back to the sponsors, they include the Pro Tem, Judiciary Chair, another Judiciary Committee member, and a Senator who has long championed the roles of lay judges. The floor debate was fascinating to watch; I was surprised by the positions taken by certain Senators. Perhaps most surprising was the support for that amendment by Senator White, a member of the Commission on Judicial Operation which recommended the opposite position. The opposition was really led by John Campbell, a lawyer, and Vice Chair (to Sears) of Senate Judiciary. You can see how this can get uncomfortable. Senators Peg Flory and Dick McCormack spoke eloquently in opposition also. The final vote was 14-16 and the amendment failed! Now, in theory at least, that should not be on the table in conference because there is no difference in the versions of the bill between the House and Senate. But that’s in theory; we’re dealing in reality.
The second amendment was a last minute move to help increase the salaries of the probate judges that were reduced in the committee’s version of the bill which passed yesterday. That amendment can be read here:
It increases the notary fee from $20 to $30 (every four years) and sends $10 of that to the state general fund. That should raise about $180,000 every four years. A little less that ¼ of that amount is used annually to add to the salaries of those probate judges that took the biggest hit. Good idea? Bad idea? Who Knows? Remember that under both versions of the bill, the judiciary will face a deficit in FY12. Should this money have been ‘set aside” for that? Anyway, as I left the building around 2PM, the Chair of House Judiciary was called into the Speaker’s Office to discuss the bill. I expect that, upon reconvening this afternoon, the House will refuse to concur with the Senate amendments and appoint a committee of conference. I’ll update later today or in the morning when I have news. Both bills will be available on the legislative website to read but refer to yesterday’s blog post to see the side by side comparison done by Erik Fitzpatrick. Even though the Senate bill is a ‘strike all” it doesn’t mean it’s 100% different. That’s done as much for drafting purposes as for the substance of the bill.
Changing the subject to H. 590, foreclosure mediation, the Senate has appointed its conferees: Senators Campbell, Illuzzi, and Cummings. Although the conference committee has yet to meet, there have been discussions about some minor changes (and maybe one not so minor) to the Senate version that the House could go along with and wrap this up. I’m still working with the coalition that managed this bill to set up our CLE to qualify the mediators. We’ve had to schedule it for judicial college week, June 7th and 8th, a Monday and Tuesday in order to accommodate out of state speakers. Stay tuned for a special announcement of this CLE. As soon as the bill is finalized I’ll post a link; you should read and understand it if you are interested in attending and offering your services as a mediator. This will be a somewhat different CLE, with stricter attendance requirements and confirmations before anyone’s name is certified by the VBA as having successfully completed the foreclosure prevention and loss mitigation course.
More either later tonight or tomorrow. Thanks for reading.

Monday, May 3, 2010

Monday, May 3, 2010- first day of the final week?

Now that the restructuring bill (H.470) is out of committee you can read it in full in today’s Senate Notice Calendar, beginning on page 2353. Published there it is 102 pages in length. There will be amendments offered, no doubt, tomorrow which should appear on tomorrow’s calendar. Although the bill is written as a “strike all”, it is not completely different than the house passed version. The important differences, as I wrote about last week, are in the sections dealing with side judges and probate judges. The side judge piece is in section 198 on page 2429. This transfer the duty to pay to the counties when side judges sit with a presiding judge; the state will continue to compensate those 8 (I believe it’s 8) that hear small claims cases as well as those that hear judicial bureau cases. On the next page in section 199 you’ll find the new salary scale for probate judges. The Senate Judiciary Committee had to find a delicate balance between keeping 14 judges and compensating them in a way that would still reach the targeted savings. You’ll see that four counties-Bennington, Rutland, Windham, and Windsor actually see increases in probate judge compensation. Remember that three of these four presently have two probate districts: Bennington already consolidated upon the retirement of Doris Buchanan. I know that many of the probate judges are unhappy with this pay scale but I don’t expect an amendment to change that on the Senate floor. But we still have to get through a committee of conference and there anything can happen! Anyway, here is a link to an outline prepared by Erik Fitzpatrick, legislative counsel to the judiciary committees, as well as a two page summary of how the money works prepared by Maria Royle of the Joint Fiscal Office:
The handwritten note is mine from Friday’s committee discussion. I expect the outline to be used by senators during the floor debate which I expect wil happen Tuesday. I’ll keep you posted as things develop. Thanks for reading.

Friday, April 30, 2010

Friday, April 30, 2010- the end is in sight

Well the Senate Judiciary Committee voted out H. 470 by a vote of 5-0. It’s headed for a quick review by Senate Finance because of the increase in some probate fees. That committee has already approved those fees in the miscellaneous tax bill. The Senate will be in session on Monday when the bill will appear on the Notice Calendar. In theory, it should be up for second reading on Tuesday and third reading on Wednesday, after which it will return to the House for concurrence or for a committee of conference. This schedule may change, moving the bill more quickly than this. It tracks the discussions I’ve been relating in my posts this week. There will be some floor amendments offered, some unfavorable to unification and perhaps one with some technical corrections as legislative counsel pours over the bill and checks citations to statutory sections and the repealers.
Certainly the Senate took a different approach than the House but, if you trust Joint Fiscal’s number, they came closer to the target $1 million in savings. The real problem carries forward to FY12. Both bills leave nearly a $300,000 hole to be filled in that year. BTW, this bill should eliminate the need for the three ½ day closings per month in the courts. However, the one day a month furloughs will continue into FY11. I expect the bill will go into conference and am sensing lots of support for the Senate approach. We’ll see how it all works out.
On H. 689 (UCIOA) the House yesterday concurred with the Senate’s roll out of the effective date until January 1, 2012. On H. 590 we’re still waiting for the Senate to appoint its conferees to work out the differences with the House. But I am going ahead with the CLE for June 7 and 8 as if the bill has been signed into law.

Thursday, April 29, 2010

Thursday April 29, 2010-7:20 AM

Late yesterday the senate did amend H. 689, UCIOA. There was a late amendment offered that extended the effective date until January 1, 2012, instead of 2011. I’m not sure why the amendment was offered and adopted; nor am I sure of what the house’s response will be. I’ll update you on this as soon as I know more. (I’m posting this update at 7AM Thursday). Also late yesterday I got a copy of a new draft of H. 470 which the Senate Judiciary Committee should consider at 8:30 this morning. The draft pretty much tracks what I’ve reported in my last two posts about out of committee discussions. The draft contains the kind of cost sharing with the counties to pay for side judges while keeping their jurisdiction as it exists today as I wrote about. It does keep 14 probate judges at new salaries, mostly lower than what they earn today. Also included are some limits to their benefits if they work less than 50%. I’m not sure how they will react to this and I have not seen a fiscal analysis of whether this draft meets or at least approaches the $1 million savings the legislature asked the Commission to find. I’ll post something later after this morning’s committee meeting.
UPDATE at 2:00 PM. The Senate Judiciary Committee did go through the draft this morning as planned and reacted favorably to what they had before them. Everyone with a stake in the outcome had a chance to react to the bill and, for the most part, there was agreement that this version did address the concerns of the Commission on Judicial Operation. That's not to say that the probate judges were not disappointed with the salary scheme but, overall, the bill does keep 14 probate judges and keeps side judges where they are now. Each goup shares in the cost of achieving those goals. A final vote is scheduled for tomorrow assuming legislative counsel gets a clean draft for the committee to vote on.

Wednesday, April 28, 2010

Wednesday April 28, 2010

A couple of bills are moving. The technical corrections bill to the Vermont Trust Code (S. 173) is no won its way to the governor for signature. The Uniform Common Interest Ownership Act (H. 689) made it through second reading in the senate yesterday with no questions or objections. It should sail through today and then be signed into law. The House Commerce Committee voted out the benefit corporation bill (S. 263) by a vote of 8-3. The three dissenters were concerned about provisions in the bill that allow conversion to a benefit corporation. There is unanimous agreement on the portions that govern setting up a new benefit corporation. I expect this to be debated on the house floor tomorrow and Friday. After passage, and since it is a senate bill, it will return to the senate for its concurrence or go to a committee of conference.
There is no progress to report on restructuring. I hope that the senate committee completes work on it tomorrow or at the latest Friday. I did see a printout of probate judge proposed salaries after restructuring but while keeping 14 probate judges. I expect most to be unhappy with the proposal I saw as it did reduce most salaries. That’s what’s really left to work out in my opinion. I think the side judge and the small claims fees issues can be resolved without too much trouble. But we’ll see.
Today the House Judiciary Committee spent a good hour reviewing the senate’s version of H. 590, foreclosure mediation. The big change from the house passed version is the elimination of pre filing mediation. The committee seems to be committed to that approach- their approach. But all the stakeholders (VLA; AG; Vermont Bankers; Vermont Mortgage Bankers; BISHCA; and the Association of Vermont Credit Unions) support the senate passed version, thereby putting the house committee and its preferences squarely in play. Although the committee did not finish its review I expect they will not concur and request a committee of conference, thereby gaining some time to absorb the changes and think them through.
I really have nothing else to report right now. We’re entering the stage of conference committee meetings that are hit and miss within whatever time is available. It’s hard to predict when or even if something will take place. There is usually no schedule, at least not a public or published schedule. I’ll post something after the Senate Judiciary Committee makes some decisions on H. 470. Thanks for reading.
UPDATE: The House is now in session and they have just suspended the rules to take up H. 590 for the purposes of NOT concurring with the senate version. The Speaker appointed Reps. Koch, Jewett and Marek to the Committee of Conference.

Monday, April 26, 2010

Monday April 26, 2010

After a week away I returned Friday to find the Senate on the floor debating tax policy; so the schedule for the Senate Judiciary Committee was cancelled once again. The Senate will be in session this afternoon with the budget up for action. There is no committee work scheduled until Thursday morning when the Judiciary Committee hopes to complete work on H. 470. Obviously, much is happening outside of formal committee meetings. There is no way the committee can resolve the issues without that happening. Even though I was in DC, here is what was related to me from last week’s one committee hearing. I’m told that the counties will pay the compensation for side judges to sit with a presiding judge in the civil and family divisions. Also, I’m told they have agreed to a two hour minimum in place of the four hour minimum that now exists. What that means is that when side judge sits, no matter for what length of time, they earn four hour minimum pay (at about $145/day). That will now be replaced with a two hour minimum. The other problem area, as I’ve written about before, is the small claims fees presently retained by the counties. Last year’s total was about $722,000. The committee chair, Dick Sears, discovered that Addison and Caledonia Counties collect $45,000 and $30,000 respectively even though the county courts are in state owned building for which the judiciary pays Buildings and general Services a fee for space. The senate version of H. 470 will redirect that money to the state’s general fund. So the balance, about $650,000, should go to the state as per the house version of the bill. This is part of the calculation that makes the integration of county paid staff into state paid staff work. But the senate committee sees that money continuing to be paid to the counties as fee for space for the state courts (divisions) to be housed in county owned courthouses. I understand there is agreement to split those fees 50-50, state and county. According to Court Administrator Bob Greemore, the judiciary can make this work in FY11. The problem is pushed out a year into FY12 and beyond. I don’t have any update on the probate court piece of this unfortunately. The committee remains dedicated to retaining 14 probate judges. In understand that the association of probate judges’ salary proposal didn’t fly with the committee; so I guess that is still very much up in the air. So procedurally where are we? Assuming the bill gets done on Thursday, it then needs to get on the calendar; pass the senate; return to the house where they will refuse to concur; and both chambers will need to appoint a committee of conference to work out disagreements and write the final legislation. And there are only two weeks left! I’ll post something on Thursday afternoon.
H. 590, foreclosure mediation, has passed second reading in the senate on Friday without objection and should get final approval this afternoon. It will also need a conference committee to work out differences between the two versions. I expect, S. 263, the benefit corporation bill to come out of House Commerce tomorrow morning. S. 173, the technical correction to last year’s Vermont Trust Code is on its way to passage with no issues.
Stayed tuned for the final updates of the session (I hope!). Thanks for reading.

Monday, April 19, 2010

Monday, April 19, 2010

Well, last Friday turned out differently than planned; what else is new. The Senate Judiciary Committee got off to a late start due to an extended session in floor debate. That’s going to continue to happen as the session winds down. The “big” bills, those that must pass before adjournment, are all in the Senate- the appropriations bill; the capital bill; the transportation bill; challenges for change; and, judicial restructuring. True the last isn’t a “must pass” bill but I’m adding it here as I think it has gotten so much attention that I don’t think the Senate can leave it on the table. So, because the committee got that late start they were not able to get to foreclosure mediation (H.590). They have set aside Tuesday and Wednesday mornings to complete work on the bill. That leaves Thursday and Friday to finish H.470, restructuring. I’m pretty sure this will be the last week of morning committees so this is it; now or never. In fact, Committee Chair Dick Sears, also a member of the Appropriations Committee, will not be able to attend the Tuesday and Wednesday meetings as appropriations will be meeting all day.
So what did they accomplish during the time they had on Friday to work on H. 470? The answer is not much. Caledonia County Probate Judge Toby Balivet did testify but spoke about the weighted caseload study and its effect on judge salaries. It wasn’t what the Chair or the committee was expecting. They were hoping for a concession on the part of the probate judges on a salary structure that would tie compensation to caseload. They didn’t get that. This is all part of what the Chair calls his “win-win” strategy. He wants to retain 14 probate judges; he wants a more realistic salary structure; and he wants to see savings in the judicial budget. He did concede that 14 may not be possible; he is open to 12.
There are other things in the works, at least at the talking stage. There may be a deal to bill counties for side judges sitting with a presiding judge in the civil and family divisions. (I was about to write “superior and family courts” but I guess it’s time to think of those courts as divisions. I hope I’m not getting too far ahead here!). The Chair did some research and saw that two counties- Addison and Caledonia house their superior courts in state owned buildings. So, he wants to recover the small claims fees paid to those counties as “fee for space”. It could be said that those counties have been double dipping. The small claims fees are key to resolving this bill. Last year they totaled $722,000. The counties want to continue to receive that money (less about $75,000 paid to those counties mentioned above). But what makes the unification of county employees into the state system work is redirecting that money to the state to offset the increased payroll costs. That, taken along with probably 20 to 30 positions that the court administrator will eliminate, are the sine qua non of the H. 470 and the Commission on Judicial Operation. Don’t read that to say that 20 to 30 people will be fired. There are lots of vacancies in the system now, as I’m sure those of you in court have experienced. Eliminating those positions, combining others, and incentivizing early retirements can reach the goals the court administrator has set.
The probate judges’ association mentioned the possibility of raising adoption fees to contribute in a small way to the savings needed. The fee is currently $75 and the proposal is to raise it to $125. That didn’t seem to garner any support in committee. The Senate as a whole has advanced the fee bill (H.759) which contains new and revised probate fees; there are 5. Guardianships for minors will increase from $35 to $85; for adults from $50 to $100. Name change petitions will go from $75 to $125. And two new fees will be added: a petition for a partial decree will cost $100 while a petition for a license to sell real estate will cost $50. Finally, the committee will add S. 279, the non unanimous jury verdict bill as it passed the Senate, as an amendment to H. 470. The house has not taken up the bill so the stage is being set for the conference committee showdown.
Because the House spent most of the day on the floor debating challenges for change for the second day, the Commerce Committee hearing scheduled for 1 PM on S. 263, the Vermont Benefit Corporations Act, did not happen. But the Senate Finance Committee did complete work on H. 689, UCIOA. It appears on today’s Senate Notice Calendar. It was not amended by the committee so it should go to the governor for signing upon Senate passage.
So, as I mentioned above, the focus remains on the Senate Judiciary Committee on two bills: H. 590 and H. 470. Unfortunately I will be out of state until Friday and will miss discussion until then. I will stay in touch with what is happening and may be able to post a quick update if needed. As always thanks for reading.

Thursday, April 15, 2010

Thursday April 15, 2010

I’d like to report briefly on a couple of things going on this week in addition to restructuring. As you are aware from news reports, the House will take up the Challenges for Change bill later today. It’s filled with controversy and will no doubt dominate both this afternoon and tomorrow on the floor. Then it goes to the Senate which will have to find an additional $11 million in savings to bring the total up to the $31 million promised. All that is still pending as of today cannot get done by Friday, April 30th. I heard a rumor that the President Pro tem has already authorized an additional week, bringing the session to a close on Friday, May 7th. That’s not confirmed but it seems likely, given that Senate morning committees are planning to meet next week. if that does not happen, more that just restructuring will die.
There are four things going on this week that I have been following. H. 590, foreclosure mediation, is set to be done tomorrow morning. There was a new draft presented to the Senate Judiciary Committee Tuesday and that draft still has opposition and raised some new issues. Seven witnesses testified on that draft: Tom Candon, Deputy Commissioner of banking at BISHCA; Chris D’Elia, President of the Vermont Bankers Association; Warren Coleman, Vermont Mortgage Bankers Association; Joe Bergeron, President of the Vermont Credit Unions Association; John Hollar, American Financial Services Association; Elliott Burg of the AG’s office; and Chuck Storrow, representing VATIC, who offered an amendment (identical language from H. 476, introduced but not acted upon) supported by the Property Law Section and Vermont title companies. A lot remains to be done to bring all sides together and some closure to the bill. The committee chair gave the parties until tomorrow at 11 to bring the committee something they could vote on. Whatever the final product, the bill will be headed for a committee of conference.
The Senate Finance Committee reviewed H. 689, UCIOA, and worked with their legislative counsel to go section by section through the bill. I see this one moving fairly quickly as no one has stepped up to oppose any of it. In fact, the Vermont Association of Realtors weighed in saying it saw no issues with the bill. They added, of course, the proviso, that whenever a bill deals with real property there may be unexpected consequences! The committee will return to finish its work late Friday and I hope to see this on the Action Calendar next week.
This morning the House Commerce Committee began work on S. 263 relating to the Vermont Benefit Corporations Act. Unfortunately I was called out of committee to work on something else and was only able to hear the beginning of legislative counsel’s explanation of the bill. The Chair had asked committee members to hold off on asking questions until that was completed; so I don’t have any insight into how the committee feels about the bill. VBA Business Association Law Section Chair Tom Moody was able to testify today. Jerry Greenfield of Ben & Jerry’s also testified. The committee may return to this later tomorrow and I’ll try to get more information to you after that.
Those of you in the VBA’s Real Property Law Section may be aware of the proposal from the Tax Department in H. 783 for electronic filing of property transfer tax returns. The Tax Department is continuing to negotiate items of the bill with members of the Section and I believe there is either a conference call or in person meeting scheduled for some time tomorrow. As soon as I see the language of the final version I will point you to it.
So that brings me a report on judicial restructuring. Keep in mind that this is such a moving target what I write here will no doubt have changed by the time you read it. Yesterday the Senate Judiciary Committee continued to hear witnesses, focusing again on side judges and probate judges.VLS Professor Cheryl Hanna told the committee that the House version of the bill which gave side judges the traffic docket would most likely pass a constitutional challenge. Karen Horn of the Vermont League of Cities and Towns wants to restrict the side judges’ ability to levy a county tax greater than one cent on the grand list. I’m expecting an amendment similar to the language in H. 641, a bill introduced but never acted upon that would set up a county committee to set the tax rate. Windham Probate Judge Robert Pu testified about his experiences on the bench and related stories of ‘real people” who use and need local access to probate courts. He spoke about the ‘rift” between the supreme court and the probate judges that has developed from this process. That caught the attention of the Chair and he wants to hear more about it. His testimony ended with a proposal to raise certain probate court filing fees in order to raise some revenue to support the salaries of the probate judges. Those figures were delivered later in the day to the Senate Finance Committee and were incorporated in H. 759, a bill relating to executive branch fees. (Yes I know we’re talking about the judicial branch here). The final witness was Commission on Judicial Operation member Steve Dale who is also the Commissioner of the Department for Children and Families. He expressed his concern for the loss of court time due to furloughs and closings. He also called the present way of doing business inefficient and asked the committee to give the supreme court control of the scarce resources it has. The committee will be hearing from Caledonia Probate Judge Toby Balivet tomorrow morning; I expect that to be about probate judge salaries. The Chair is looking for some concessions and compromise. I think that’s going to be hard to find. I’ll try to update you tomorrow after lunch. Thanks for reading.

Monday, April 12, 2010

Monday April 12, 2010

My last report to you on Thursday, April 1st, ended with my saying that the Senate Judiciary Committee was going to begin work on H. 590, the foreclosure mediation bill, the next day. Well, that never happened due to extended floor debate. So I did not report to you last Tuesday as there was no schedule that morning on the issues we are following. That evening, however, the Senate Finance Committee spent about an hour hearing from Carl Lisman on the amendments to the Uniform Common Interest Ownership Act (UCIOA). H. 689 is back on their calendar for this Wednesday afternoon when the committee will hear from a representative of the Vermont Association of Realtors, of which the Chair, Senator Ann Cummings of Washington County, is a member. Barring anything unforeseen, I expect the bill to be approved, perhaps as early as this week. The effective date of this is delayed until January 1, 2011 to give all parties (i.e. the VBA) sufficient time to train practitioners on the changes. Stayed tuned for announcements of CLEs etc. on UCIOA.
There was no progress on either S. 173, the technical amendments to the Vermont Trust Code or S. 279, the non unanimous civil jury bill. The House Judiciary Committee has both bills but it spent its week on Challenges for Change and corrections policy. By the way, H. 461, the small estates bill that added surviving parent or parents, to the definition, has now passed both chambers and has gone to the governor for action. If signed it will be effective on July 1. I’ll keep you posted.
All of my time last week was spent in the Senate Judiciary Committee beginning Wednesday morning; the topic was H. 470, judicial restructuring. Before I give you a detailed description of what happened, allow me to jump ahead to Friday, when the committee spent time (finally) on H. 590. Although its time was cut short, they did hear from three four witnesses. The first was VLA Attorney Grace Pazdan who spoke of the foreclosure crisis from her experiences. The second was a homeowner who described in disturbing detail her experiences with Countrywide and her attempts at resolving a delinquency and fending off a foreclosure. The committee was visibly moved by the detail of her account. Elliott Burg of the AG’s office told the committee he wants to offer some amendments to the House bill. They also heard from Evan Meenan of Paul Frank and Collins, representing “some Vermont banks”. Because time was limited, they will return to the bill tomorrow to hear from the other witnesses who were sent away on Friday. Mark up of the bill is tentatively set for Thursday morning. “mark up” is a term used to mean that the committee will work among itself to discuss changes, if any, and to direct legislative counsel to draft those changes for discussion in advance of a final vote. They’ve set aside time to “mark up” H. 470 also on Thursday, even though they seem pretty far from a final result of that.
Before I move into discussing H. 470, I wanted to report also that the Committee Chair, Senator Dick Sears, said he’s asking the President Pro Tem for two weeks to wrap up both bills. He reported this on Friday, so he was obviously asking for committee time until Friday, April 23rd. It was thought that, in order to make an April 30th adjournment date, the committee was going to have to wrap up its work by this Friday, the 16th. It now seems as though adjournment may be pushed back a week. He also was pretty clear that if he didn’t get those two weeks, both H. 470 and H. 590 “would die in committee”.
Judicial restructuring; where are we now? Wednesday, Thursday and part of Friday mornings were spent in committee on H. 470. There was also a public hearing Wednesday evening at which 30 witnesses spoke to the committee. I had some “out of committee” meetings and conversations that took a good portion of Thursday afternoon. Here’s how it all went down. The week began with two GALs testifying about the cuts to family court and their impact on TPRs and CHINS cases. They were supported by VLS professor Alex Banks who represents children and domestic violence victims. The Chair said he is looking for alternatives to furlough days and the half day closings. Paul Hanlon told the committee of his fear that attempts to fix the court system may “break the probate court”. Two issues have arisen around the probate court proposals. One is eliminating the de novo appeal to superior court (or the new civil division). The committee seems to oppose that. The other is the requirement that probate judges be lawyers. The Chair vehemently opposes that; the Vice Chair strongly supports it. Tuesday morning’s testimony presented the committee with something they did not want: the tension between family and district court funding and probate court and assistant judge funding. No one wants it to be said that way but that’s the way it’s shaping up. the Washington Superior Court Clerk told the committee of low morale among her staff and saw the bill as a way to “get rid of county government”. The Chair is concerned about “fee for space”, i.e. the fee paid to counties for the state’s use of court facilities. Although there is a 1987 statute that gives the counties 75% of the notary fee as “fee for space” some counties are now asking for the small claims filing fees to remain in their coffers. Remember that approximately $722,000 in fees are redirected to the state under H. 470 to help offset the cost of integrating county employees into the state system. Well, the Chair did some research and was quite surprised to learn that in Addison and Caledonia Counties, two places where the superior court is in a state building, the counties still get to keep the small claims fees! More to come on this, I’m sure.
Other issues surfaced on Tuesday also. There was a question of whether a superior court clerk could also serve as the county clerk (as they do now). The committee wants testimony on the judicial function of side judges. They are scheduled to hear from VLS professor Cheryl Hanna this week. (Professor Peter Teachout and Judge Teachout are on sabbatical). Senator Illuzzi proposed an amendment to retroactively amend the Cannons of Judicial Conduct to permit a side judge from campaigning for his position at the same time he campaigns for probate judge. This is meant to address one case. Since this is not a new question (it arose last year in H. 11, the estates bill), the VBA opposed it again. There is no decision on it yet but I expect one this week. The committee still needs to deal with the magistrate retention issue as well as unification of overall staff. Senator Nitka opposed the removal of the language that dedicates staff to the E court, saying that those law clerks develop an expertise that should remain with the court (just as it does with the judges).
That full morning was followed by a 2 and 3/4 hour public hearing that filled Room 11. I broke down the testimony into four groups: those supporting H.470; those supporting side judges; those supporting 14 probate courts; and those supporting local access to courts. Without spending too much time on this here are some highlights from the hearing (repeated without attribution as I can’t be 100% certain of the quotes):
H. 470 is an assault on the citizen judiciary;
This is a takeover of county government;
Table the bill;
Probate courts are the gem of the judicial system;
Family and district courts are the black holes for resources:
There has been an intimidation factor from the supreme court;
The CJ has no understanding of the function of superior courts;
Side judges offer continuity in family court;
Side judges are the subject of ridicule around the country;
Our structure is fragmented and inefficient;
Put the bill to a public referendum;
Side judges make no difference in the outcome of cases.
On Thursday, the committee heard from some probate court practitioners: Bob Pratt and Bud Otterman. Both, as expected, were supportive of the probate court. Bob suggested looking at fees to increase revenue. During his telephone testimony the Chair raised the issue of setting probate judge compensation on the basis of the volume of cases handled, using Chittenden Probate Court as 100%. The afternoon meeting focused again on this as well as part of Friday morning’s session. There are alternate approaches on the table but there is no resolution or agreement. One model would find judges compensated at a much lower level that today. Query whether this would deter them or others from seeking the position this fall? The committee then turned its focus on the unification of staff and whether county employees would lose accumulated benefits if they became state employees. Jes Krause of VSEA testified as did Court Administrator Bob Greemore.
The Chair is dedicated to a “win win” outcome and will pursue that as his goal. The only issue is time: will they get the time to do this right? Testimony is scheduled for Wednesday morning. I’ll update you after that. Thanks for reading.

Thursday, April 1, 2010

Thursday, April 1, 2010 (this is not April fools!)

So it’s been a week since I reported on what’s happening on judicial reorganization or anything else in Montpelier. The Senate Judiciary Committee spent two days this week on H. 470. Last week I told you that they reinstated the judicial functions of side judges. Today the Chair called upon the side judge association to come to the table with a proposal to share in the cost of their sitting as judges. He also asked Caledonia Probate Judge Toby Balivet, who testified this morning, what his highest priority is. He said keeping 14 probate judges, one in each county. Again, the Chair invited him back with a proposal to rework judge salaries to share in the savings the legislature needs to find. The question Senator Sears asked is how can we justify a salary of, taking Franklin County as an example, 65% of the Chittenden Probate Judge (the only full time judge), when the caseload is only 39%? Clearly the committee is moving toward 14 judges but must find the savings to make that work. The alternative, unfortunately, is closing state courts in some counties- district and family courts.
The list of witnesses these last two days was long. Yesterday the committee began with Administrative Judge Amy Davenport; she walked them through a chart of increased caseload backlogs which she said fall disproportionately on district and family courts. Senator Sears reacted at one point by saying that the House had three months to work on this and the Senate only has three weeks. He also objected to “elected judges taking the majority of the hit” in restructuring.
Steve Schindler testified in opposition to the House language that makes the probate court one of record. His research showed that only 18 cases were actually appealed to superior court in 2008, less that one percent of all cases in probate court. He objects to “formalizing” the otherwise informal process for 99% of the other cases. This is shaping up to be a big issue for the committee along with the requirement that all probate judges be law trained.
Chris Chapman, a trust officer with the Trust Company of Vermont, urged the committee to set aside the commission’s report and return to a study of the probate court before acting. He specifically objected to the reduction in the number of probate judges and suggested the committee look to increasing filing fees as a way to add additional revenue. When asked by the Chair about the consolidation of Windham and Bennington Counties into one probate district (sharing one judge), he stated his opposition. That gave the Chair an opening to say that “the House put that in there to tweak me”.
Vermont Legal Aid Executive Director Eric Avildsen spoke to the committee in support of the court’s administrative control over a unified system. He also supported elimination of the judicial functions of side judges, calling their decisions “inconsistent”. He told the committee that the House had improved the bill from the bill as introduced. In short, VLA supports the division structure; it supports requiring probate judges’ being lawyers; and he didn’t oppose eliminating de novo appeals from probate courts.
Franklin Superior Court Clerk Jim Pelkey argued that the judiciary is already unified as he takes direction from the Court Administrator’s office. He suggested that a way to save money would be to transfer the Clerks’ salaries to the county budgets. He thought that properly trained side judges could hear small claims matters. He did favor eliminating de novo appeals to superior court. He also offered that the per diem expense for side judges to sit aside a presiding judge should be the county’s expense.
Bennington attorney John Williams testified by phone arguing for the legislature to allow a period of time for the four southern counties to acclimate the consolidation of eight probate judges into four. He opposed further consolidation.
Franklin Probate Judge Larry Bruce criticized the Commission on Judicial Operation’s lack of information on the probate court system. He talked about the de novo appeal numbers; he mentioned that 85% of the probate caseload is pro se. he reminded the committee of the additional caseload from the new Vermont Trust Code’s transfer of jurisdiction of inter-vivos trusts. He had concerns about losing the ability to hire a clerk or register, reading H. 470 as giving that authority to the court administrator. There was one interesting exchange about the issue of probate judges being lawyers. Larry said the statue allows him to designate his register as an acting judge in his absence. Well that sparked the Chair’s attention, causing him to question whether that could continue if the legislature required probate judges to be lawyers.
Today Judge Balivet added his support to the concept of a unified court although he did question whether cross training of staff is feasible. He had no strong feelings wither way on the issue of de novo appeals. I’ve addressed his other comments above.
Two Washington County probate practitioners testified- Dave Otterman and Mike Caccavo. Both argued to keep the probate system as it is with a judge in every county. Dave, in response to a question about probate judges being lawyers, said he saw no reason to not make that a requirement. He was undecided on whether to eliminate the de novo appeal while Mike supported it.
Bennington Assistant Judge Jim Colvin challenged the court administrator’s estimate of small claims filing fees being $700,000. He thinks that money, whether the amount, should go to the counties as “fee for space” or use of the county courthouse property. He also opposed the unification of staff in H. 470.
Finally the Chief Justice read a prepared statement into the record before taking some questions. His statement can be read here:
Remember that there will be a public hearing on this next Wednesday from 4:30 to 7:00PM in room 11 of the statehouse; anyone can testify.
So you’ll know that this isn’t the only thing happening in Montpelier, the legislature is advancing a substantial amendment to the Uniform Common Interest Ownership Act (H. 689). The Senate Judiciary Committee will set aside H. 470 tomorrow to begin work on H. 590, the foreclosure mediation bill. The VBA is already organizing a group to structure the training required for mediators in these cases. I’ll update you as we move forward. As always, thanks for reading.

Thursday, March 25, 2010

Senate Judiciary Begins Work on Judicial Restructuring

What was planned as the initial walk through of H. 470 by legislative counsel for the Senate Judiciary Committee turned out to be an action session as well as an information session. The Chair of the committee immediately objected to the provision in the House passed bill that requires probate judges to be lawyers. He went as far as to say that “it’s the most damning part of the bill and I will vote against the bill if that is in it”. He was not alone in that sentiment. There was objection to the court administrator being the person to hire the probate registers. The probate judge and the court administrator should consult and work together on selection of a register. That didn’t seem an impossible issue however. There was objection to removing the de novo appeal from probate to superior court. Two committee members objected to that language and the committee will hear testimony on that next week.
The committee took an immediate position on the role of assistant judges. They voted 4-0-1 to keep AJs doing what they do today BUT asking the counties to contribute to their salaries. But, two committee members want to talk about the small claims docket, having heard complaints about AJs and small claims cases. The provision that eliminates the dedicated number of staff to the E court drew the ire of two committee members.
There is language in the bill that extends the jurisdiction of magistrates to establishing parentage, PR&R and PCC. It also subjects magistrates to the retention process. Presently they are not retained as judges are. At the expiration of their 6 year terms, the governor either reappoints them or not. Then the Senate confirms the appointment. The Chair felt that subjecting them to retention reduces the power of the Senate. He asked legislative counsel to see that the language of their jurisdiction gets put in the appropriations bill (the “big” bill) because H. 470 is “not a must pass bill”.
After the morning break the court administrator Bob Greemore, took the witness chair and outlined the scenario of the next four years if restructuring does not happen. He handed out a spreadsheet showing the committee how the court would look if it had to absorb cuts of $1 million for the next four years. Services and staff would be cut drastically. I think some counties may eventually see services terminated. He described the current state of the judiciary including the loss of one furlough day a month as well as the time lost due to the weekly half day closings. Between the vacancies in judgeships as well as the closings the courts are losing almost 20% of their “judge-days”. The committee listened intently to his testimony and reacted less than it did earlier. There was a question about the redirection of the small claims filing fees to the state. The $700,000 in filing fees presently goes to the counties as the superior courts handle small claims. That money would go to the state to help offset the state’s taking over the county employees. The AJs have told the Chair that those fees are the “fee for space” for use of the county court buildings. That issue is left for another day.
The committee returned again to the probate court discussion, this time asking where the $853K savings will come from. Greenie told them that $410K is saved in probate judge salary while $440 comes from staff consolidation. There followed some general discussion about outside practices for the probate judges and the benefits package they receive. Some members felt there should be no outside practice while others thought that benefits should be prorated. Again, this is a discussion for another day.
Changing the subject, yesterday the Senate Judiciary committee voted out H. 461, the small estates bill earlier passed by the House. It expands the definition to include any individual who dies leaving no real estate and less than $10,000 in value of the estate. That should see quick Senate action next week and head to the governor for signature. The House is spending today and tomorrow on the floor in debate on four major “must pass” bills: the miscellaneous tax bill; the budget or “big bill”; the transportation bill; and the capital bill. All will take the two days and then next week, House committees will return to begin (continue) work on bills that came over from the Senate.
Thanks for reading.

An Outline of H. 470 as Passed the House

Here are the major topics and the sections where each is covered. I’m not guaranteeing I got every one of them but it’s a good start to reading the 180+ page bill.
Unification, Jurisdiction , Venue: 1, 7, 7a, 7b, 7c, 7d, 7e, 7f, 9, 11
Consolidation of Staff: 37, 237, 238, 238a
Probate Court: 17, 22, 199
Assistant Judges: 8, 14, 55a
Magistrates: 29, 36
Environmental Court: 3
Courthouses: 163
Transitional Provisions: 238

Wednesday, March 24, 2010

H. 470 Passes the House

In an overwhelming voice vote, the judicial restructuring bill took its first steps towards becoming law. As often happens, yesterday's 104-40 roll call vote was today followed only be a voice vote with little opposition. More amendments were offered today and all were defeated except one: the court administrator will, in the future, distribute the rotation schedule of trial judges electronically to all attorneys. The Senate Judiciary Committee will hear from witnesses tomorrow morning and not on Friday as previously scheduled.
There is a very long way to go before work on this bill is done.
Thanks for reading.

Tuesday, March 23, 2010

H. 470- its first test in the House

The House just advanced the judicial restructuring bill to third reading by a vote of 104-40. It had previoulsy defeated two amendments, one by a voice vote and one by roll call. The first amendment to allow assitant judges to sit with a superior judge in the civil and family division upon request of a party was defeated 108-38. The second, to keep the 14 probate judges as we presently have, was defeated by a voice vote.
More amendments are expected tomorrow morning before third reading. After debating and voting on them, the question will be "Shall the bill pass?" I expect the vote to be similar to today's.

Monday, March 22, 2010

Monday update

I forgot to add in the results of the retention vote of last Thursday. Here they are. Thanks for reading.

For Superior Judge David A. Howard
Total votes cast .........................166
Necessary for a majority .............84
For retention .........................162
Against retention ......................4

For Superior Judge Helen Toor
Total votes cast .........................166
Necessary for a majority .............84
For retention .........................160
Against retention ......................6

For Environmental Judge Thomas S. Durkin
Total votes cast .........................165
Necessary for a majority .............83
For retention .........................155
Against retention ....................10

Monday, March 22, 2010

Thank you to all who attended our session on judicial restructuring at the Mid Year Meeting on Friday. I want to especially thank Rep. Tom Koch and Court Administrator Bob Greemore for their participation in the presentation. Tomorrow the House will take up the bill for “second reading”. Under our rules, a bill must pass each chamber twice; the questions presented are: on second reading, “shall the bill be read a third time?” Then, on Wednesday the bill returns with the question “shall the bill pass?” If successful it goes to the Senate where the Senate Judiciary Committee has already scheduled two mornings of hearings. Remember that Senate committees only meet for a half day since each senator sits on two committees. Here is the committee’s schedule:
Thursday, March 25, 2010
9:00 AM H. 470 - An act relating to restructuring of the judiciary
Walk Through the Bill - Comparison - House Changes
Erik FitzPatrick, Legislative Counsel, Legislative Council

10:15 AM H. 470 - An act relating to restructuring of the
Toby Balivet, Judge, Caledonia County
Amy Davenport, Administrative Judge, Judiciary
Robert Greemore, Court Administrator, Court Administrator's Office

Friday, March 26, 2010

9:30 AM H. 470 - An act relating to restructuring of the judiciary
Toby Balivet, Judge, Caledonia County
James Colvin, Assistant Judge, Bennington Superior Court

11:00 AM H. 470 - An act relating to restructuring of the judiciary
Committee Discussion with Erik FitzPatrick, Legislative Counsel

Friday, March 19, 2010

It's Time to Weigh In!

Here is a link to a 4 page summary of the judicial restructuring bill H. 470.

We’ll be using it during the panel discussion today at the Mid Year Meeting. But even if you are not able to attend you should review so that it’s clear what the bill does and, more importantly, what it does not do. Now it’s time to get involved and, on behalf of the VBA Board of Managers, I’m asking you to contact your House member(s) now- this weekend. The bill should be debated on the floor of the House on Tuesday; it’s crucial that your representatives know how you feel about the changes. The VBA has worked long and hard on improving the initial proposal and conveying what our members told us. We think the present version of the bill comes as close to what most asked for that it should pass the House. You can help make that happen. Contact your representatives and urge them to support H. 470. Thank you. And thanks for reading.

Tuesday, March 16, 2010

Tuesday, March 16, 2010

Well, both the Senate and House Judiciary Committees have advanced bills that they have been working on to the respective bodies for floor action. The Senate Committee has completed work on the non unanimous jury bill, S. 279, by rewriting the bill to require an 11 of 12 majority to reach a verdict. The bill can be read here: http://www.leg.state.vt.us/docs/2010/calendar/sc100316.pdf.
(Scroll down to page 409). The bill sunsets this law on January 15, 2015. In the interim, the court administrator must report to both judiciary committees whether the number of hung juries or the average award of damages has changed; whether there has been an impact on medical malpractice cases; and any positive or negative impacts on the court system itself.
The House Judiciary Committee, for its part, has advanced H. 590. the foreclosure mediation bill, to the Calendar. It can be read here: http://www.leg.state.vt.us/docs/2010/calendar/hc100316.pdf. (Scroll to page 552). It has not changed from my report to you last week before I left town for my event at the ABA. Finally, and perhaps most significant of all, is H. 470, judicial restructuring. Read it here: http://www.leg.state.vt.us/docs/2010/calendar/hc100316.pdf. (Again scroll to page 440).
Here’s what I expect will happen this week. After the crossover deadline, the calendars of both chambers are full. That means most of the legislative day is spent, not in committee as usual, but on the floor in debate. The House and Senate must each vote up or down on its bills and advance (or not) them to the other chamber for work prior to the expected April 30th adjournment date. The other thing happening this week is the joint assembly to vote on the retention of Judges Durkin, Howard, and Toor. That will happen Thursday at 10:30. The only real committee work I see this of interest to us is later today (2:30) when the House Appropriations Committee is set to review H. 470. Remember that when Judiciary added back two probate judges (for a total of 8 but 7 FTEs), it needed to find the way to pay for that. Appropriations will try to resolve that today. That committee has a crossover deadline of this Friday, the 19th, after which the bill can be debated on the floor. There is still much to be done by the Judiciary Committee to assure all House members understand just what they are voting on and what the bill does and does not do! So, if Appropriations takes until this Friday to finish its work on the bill, debate will take place next week, probably beginning on Wednesday. Arrival of the bill in the Senate may be Tuesday, March 30th.
I’ll report what I learn from the Appropriations presentation later today and will continue to follow the progress of all three bills during the two days I’ll be in Montpelier this week. As you know our Mid Year Meeting is this week and I’ll be in Burlington on Thursday and Friday. Don’t forget we’re doing a one hour briefing and discussion on judicial restructuring on Friday from 10 to 11. The text of the bill has been uploaded to the materials for the Meeting and will be on the CD we’re giving to attendees. If you want to attend that session and follow along it may be smart to bring your laptop and the CD; printing out a 183 page bill is crazy! Anyway, as always, thanks for reading. Get in touch if you have questions. See you on Friday.

Thursday, March 11, 2010

Thursday March 11, 2010

As I mentioned yesterday I am away at an ABA meeting but am able to give you this update as provided to me by someone who has knowledge of what happened on Wednesday and this morning.
"Yesterday, House Judiciary heard from Bob Greemore about possible sources for the $250,000+/- savings they need to find to make up for the fact that they’ve added two FTEs to the Probate Judge count proposed by the Commission. [So there will be six full-time probate judges and two half-time probate judges for eight probate election districts altogether. Half-time judges are in Franklin-Grand Isle and Addison.]
Then they moved to assistant judges. The Committee had a consensus that Assistant Judges should no longer sit in their so-called “side judge” role. The Committee had consensus that whatever is ultimately decided, the AJs need a job description; they need to meet training requirements; the training needs to be under the auspices of the Court Administrator’s Office; and those who run and are elected are expected to fulfill the job description. [In other words, it’s no longer voluntary as to whether or not AJs sit on cases for which they’re eligible, once they’ve successfully met training requirements.]
Today, after further discussion, the straw poll of the Committee was that AJs would have no “side” judge responsibilities; no small claims responsibilities; and no municipal ordinance responsibilities, but that they would have traffic responsibilities.
The Committee also decided that although probate judges must be lawyers, Probate Judge Hodgdon would be grandfathered so he could continue to sit as a probate judge so long as he continues to be elected.
Magistrates will be subject to retention.
There will be language regarding a transitional period for ADA compliance by county courthouses that will allow for planning and costs to be placed in capital bill.
They changed the language of the current draft re: probate registers. Now it will say something along the following lines: the court administrator will designate a probate register in each unit, and the probate register can designate additional registers with approval of the court administrator."
Tomorrow is the committee's deadline. I'll post a link to the final bill as soon as I have it. Thanks for reading.

Wednesday, March 10, 2010

Wednesday March 10, 2010

Here’s a quick update on what happened on Tuesday. The House Judiciary committee did complete its work on H. 590, the mediation in foreclosure bill. The vote from the committee was 7-2-2. The Chair decided to hold the bill until Friday when it will be delivered to the House clerk’s office. Once a bill is delivered, it goes on the Notice calendar the next day. Then a bill advances to the Action Calendar on the next legislative day. Chairman Lippert did not want to distract the committee from its work on H. 470 by having to prepare for floor debate on the mediation bill. So, it will make the crossover deadline by being delivered by this Friday. But the bill still faces some hurdles. The Vermont Bankers’ Association has begun an all out effort to defeat the bill. It will probably get enough support to pass the House but its future in the Senate is less than clear to me right now.
On the Senate side, the Judiciary Committee returned to hear more testimony on S. 279the jury bill. Yesterday it heard from representatives of insurance companies while today testimony was scheduled from Paul Harrington, Executive Vice President of the Vermont Medical Society. I heard yesterday that he sent an alert to all Vermont physicians asking them to contact senators to express their opposition to the bill. I’ll do my best to get some long distance updates so I can report on where this now stands. Just as in the House, the Senate faces the same crossover deadline this Friday.
If you read the Vermont section of today’s Burlington Free Press and/or listened to Vermont edition on VPR at noon or 7 PM, you’d have a good update on where judicial restructuring now stands. At yesterday’s briefing of two House committees, Chairman Lippert announced that his committee had finalized plans for 6 full time probate judges and 2 half time judges. The bill that is about to emerge from the committee will look a lot like the position urged by the VBA’s Board of Managers. As soon as I can get the final version, I will get it out to you for your review. What I am missing today and tomorrow in committee is the final decision making on the two remaining issues: how to pay for the additional probate judges and the judicial functions (if any) of side judges.
So here’s the calendar. House Judiciary must finish its work by Friday. The bill will appear on the Notice Calendar on Tuesday, or earlier if the Speaker of the House decides to call a Monday session. But, since the bill involves spending, it must be committed to the House Appropriations Committee. That committee has a different cross over deadline- Friday, March 19th. So, debate can be expected during the wee of March 22nd. Passage by the House will get the bill to the Senate the week of the 29th. Will there be enough time for that body to work the bill? Remember that adjournment is expected on Friday, April 30th. The legislature is funded for a 16 week session, ending on that date. It leaves the Senate Judiciary, Government Operations, and Appropriations Committees about 4 weeks to get through a bill that may be about 200 pages long. The other thing to remember is that Senators serve on more than one committee. Senate committees meet only a half day as opposed to House committees. So there’s a lot to be done in a short time. There will be opposition to parts of the bill no doubt. The committee members have their work cut out for them as they must now educate all House members about exactly what the bill does and, probably more importantly, what it does not do. There’s a lot of misinformation out there in the legislature and, I still find, among members of the Bar. That’s one of the reasons we’re going to be discussing this at the Mid Year Meeting next Friday. Please join us for a briefing on the bill; come to ask questions; and learn how you can help by contacting your House member(s) before the vote in the House. As always, thanks for reading. I’ll try to update you on progress even though I’m out of town.

Tuesday, March 9, 2010

The Second Half Has Begun

Now that the Town Meeting recess is over, the rush to meet the crossover deadline is on. Three of the bills that I have been following and reporting about are on the agenda. First, the Senate Judiciary Committee has scheduled testimony for this morning on S. 279, the bill that would replace the unanimity requirement in civil juries with an 80% rule. Today the committee will hear from representatives of insurance companies that oppose the move. The bill does not reappear on the committee’s schedule this week so whether it advances to the House by Friday is not clear.
On the House side the House Judiciary Committee hopes to finish its work on two bills: H. 590, the foreclosure mediation bill and, of course, H. 470, judicial restructuring. As of now, I have nothing new to report on either. There is a re-draft of H. 590 for discussion this morning and the committee has set aside time to review and vote on it. Beginning this afternoon and continuing until Friday afternoon, the committee will work on H. 470 with the goal of a writing a bill and having it on the Notice Calendar next Tuesday. I expect a new draft to be distributed this afternoon after the House recesses its floor session for House Judiciary’s joint meeting with the House Government Operations Committee. That session could easily pave the way for both committees to wrap up their work on the bill if there is agreement on the outstanding issues. Without repeating what I reported on February 25th (my last post before the recess), the remaining issues were two: how to pay for the committee’s vision of probate districts and the number of judges and the judicial duties of assistant judges. Again, I have nothing new to report right now but should know more by the end of today. I’ll try to post an update alter today or early tomorrow. Then I’m off to Chicago for the ABA's Bar Leadership Institute for the rest of the week. I’ll do my best to keep you informed along the way. Thanks for reading.

Thursday, February 25, 2010

Thursday February 25, 2010

Sorry for the delay in getting this posted but with legislative committee schedules and the storm it’s hard to find the time to sit and write something. As you know this week the push is on to wrap up work on lots of things before the week long Town Meeting break. Even though crossover isn’t until Friday, March 12th, getting as much done this week as possible makes the first week back more tolerable. Give the commotion around the statehouse yesterday with the Vermont Yankee vote, it’s a wonder anything got done. So let me quickly mention a couple of things before moving on to my favorite (not) subject of judicial restructuring. First, the House concurred with the Senate version of H. 533, the military parental rights bill. They suspended rules and “messaged” the bill to the governor, hopefully for a quick signature. I posted notice of that this morning to the Family Law Section list serve and the conversation has already begun among its members. The list serve experience is working well and I encourage all of you to use the list serve for your Section or Sections. The exchange of ideas serves almost a mentor role. BTW, we’ll be covering the H. 533 at the family law CLE at the Mid Year Meeting in March.
This morning I heard testimony on S. 279 in Senate Judiciary from Judge Katz and Attorney John Paul Faignant. Both support the bill which would provide for an 80% verdict in civil cases, replacing the current requirement of unanimity. Judge Katz argued that the system has so changed over the years that the old rules should give way to a new approach. He felt that 80% is already extraordinary support for a proposition. And he asked, “If probability is enough why should we require unanimity on probability?” John Paul, an insurance defense lawyer with more than 30 years experience thinks the present requirement puts injured Vermonters at risk. He thinks unanimity is not a “level playing field”. He concludes that it will be more fair under an 80% verdict requirement.
The retention vote, scheduled for last night, will take place today by ballot during the day. I expect unanimous support for the retention of Judges Durkin, Howard, and Toor. The full legislative vote will be held on Thursday, March 18th.
The House Judiciary Committee will devote all of Friday to H. 590, the foreclosure mediation bill. In the last draft the committee reviewed, there was a provision for mediators to be lawyers and receive a minimum of 6 hours of CLE before they could mediate a case. I asked our ADR Section if anyone would be interested and the response was terrific. If asked by the committee tomorrow I can say that we have about 25 volunteers willing to take the training and do the work.
And now, back to judicial restructuring. House Judiciary spent three days this week on H. 470, at least so far. If they have time and get the figures they need, they’ll do more on it this afternoon. The week began with the Chair telling everyone in the room that the proposal for 5 probate judges was not going to be adopted. He said he expected 6 FTEs, if not 7. Judge Balivet spoke first arguing against the weighted caseload study’s recommendation of 6.35 FTEs. He calculated 7.17. He was followed by Lamoille Probate Judge Jim Mahoney, who was making his first appearance at the committee. He thanked them for probing the assumptions made by the Commission on Judicial Operation (CJO). He admitted to being protective of the county probate system because it works so well. He used, as an example, the guardian program that each county no doubt has in place. He argued that it would be much more difficult to do across county lines in a multi county district. He told the committee that with 5 probate districts “everybody loses”; with 7 you have winners and losers. He asked the committee to combine “like counties” in constructing districts. He agreed that probate judges should be lawyers but disagreed that the court should be one of record. He likes the informal process. Judge Belcher followed him and spoke more to the issue of morale and the conflict that came out of this process. He sees it as a problem within a team and doesn’t like this new adversarial relationship. Bennington County Assistant Judge Jim Colvin also testified about the recommendation to remove the judicial functions of side judges. He advocated for more jurisdiction. He thinks side judges can be trained to set child support and also argued that, if they retain their jurisdiction in small claims, the counties should pay them but also keep the filing fees. He rebutted some CJO findings saying that side judges have voluntarily reduced the time they sat with a presiding judge as a cost saving move.
On Wednesday morning Judge Davenport returned with yet another spreadsheet to rebut the numbers put out by Judge Balivet. Her explanation for reaching different conclusions is that the CJO included law clerk time in judicial time calculations. She says the number 7.17 is wrong. Later Judge Balivet agreed to the correction. In any event a committee member cut to the chase by saying, in short, we’re somewhere around 6 or 7 and it’s up to the committee to write the bill. Done. Legislative counsel Erik FitzPatrick then went through the draft he worked on in an attempt to focus the committee on the specifics of where they were going. Late in the day the committee came back to the probate district discussion and laid the alternatives on the table. There were essentially three proposals: one with 6 full time probate judges; a second with 14 with pro-rated salary and benefits; and a third with 7 judges constituting 6 or 6.25 FTEs. Willem Jewett is concerned with multi-county districts believing that elections will become more political as the districts get bigger. The committee asked the Court Administrator to run some numbers overnight and to compare the three scenarios with the CJO recommendation. Since each of the three scenarios cost more than the CJO recommendation, Greenie said the committee was looking at spending $120,000; $130,000; or, in the third case, $260,000 more. The challenge will be finding other savings to pay for this change. Anyway, this morning a new breakdown was presented. It seems that the committee may well come together on this: 8 positions with a FTE of 7. They would be as follows: Chittenden, Rutland, Washington-Lamoille, Bennington- Windham, Essex-Orleans-Caledonia, and Orange-Windsor will each have 1 full time probate judge. Franklin-Grand Isle and Addison will each have a half time judge. This may be about $280,000 more expensive than the CJO recommendation. Greenie will price this out exactly and may get back to the committee later today.
Setting aside that issue the committee then began discussing assistant judges. And the committee seemed split; some want to follow the CJO recommendation to remove judicial duties of side judges; others want to require them/ keep them hearing traffic cases; and one suggested they could do uncontested divorces. No one argued for their continued role in small claims court. One again they’re looking for cost and until they’re comfortable that they have all the data needed they won’t be rushing into a decision.
That’s it for now; I’m heading back to the statehouse to see if the committee will have the time to put these issues to bed. Friday, March 12th remains the committee’s target date for getting the bill out. It will need to go to the House Appropriations Committee for its review before it goes to the floor. Only if it survives floor debate will it (or something that looks like it) go to the Senate. Judicial restructuring still has a very long way to go. Thanks for reading.

Monday, February 22, 2010

Monday February 22, 2010

On Friday I got a break from judicial restructuring as the Senate Judiciary Committee heard testimony for the first time on S. 279, a bill that would allow non unanimous civil jury verdicts. The bill calls for a “super majority” of 80% to constitute the verdict of the jury. Senator John Campbell, a Windsor County attorney, Vice Chair of the Committee and Senate Majority Leader, sponsored the bill. The bill appears to have the support of the Chair, Senator Dick Sears, while Rutland Senator Kevin Mullin seems to be opposed, at least as of then. Two other committee members really didn’t reveal their leanings. I was asked to open the discussion and did so by telling the committee of the Vermont Supreme Court-created committee dating from November 2001 which resulted in a recommendation of exactly this change (along with many others) in March 2003. The 19 member committee seems to have voted 18-1 in favor of a super majority verdict. I then introduced the two witnesses: Brad Myerson, arguing in favor of the bill and Sam Hoar, a member of the former Supreme Court Committee, who argued against changing the present system. In a little over an hour both men spoke eloquently in support of their position. I was very impressed by the level of discourse as well as the questions the non lawyer committee members asked. Sam and Brad honored our profession in the way each handled the presentation.
Brad began by discussing a case he tried to a hung jury and mentioned that in 33 other states, the jury would have completed the case since there was only one holdout juror. He dispelled the myth that this bill would favor plaintiffs; a position that Sam supported. If more cases go to verdict it would help the judiciary, Brad argued. Sam’s criticized the Supreme Court study report as “intellectually dishonest” calling the bill a reform in search of a problem. He says the evidence in support of the “problem” is anecdotal and debatable. Since the court already has the authority to reject a verdict that it feels is improper, the remedy is already there. He cited to an Arizona jury study discussed in a law review article that showed negative changes on juror behavior in a non unanimous state.
The committee will return to deliberate on S. 279 on Thursday morning.
I spent the rest of Friday morning, through the lunch hour, in House Judiciary listening to mostly criticism of the second draft of H. 590, the mandatory mediation in foreclosure bill. As introduced the bill mandated mediation in the case of foreclosures in four unit homes or less. This draft gives a mortgagor 20 days to request mediation; it would no longer be mandatory. The AG and Vermont Legal Aid, proponents of the bill as introduced (which they drafted), of course objected. The content of the mediation is not specified as well as the sanctions for failure to comply with federal guidelines for remediation. Grace Pazdan, the Poverty Law Fellow at VLA, who specializes in foreclosure defense said that homeowners are not getting the modification help they need and which is available under federal law. The Vermont Mortgage Bankers’ Association argued that costs should be borne by the parties equally as opposed to the bill and the draft’s approach to have the plaintiff pay the cost of mediation. Tom Candon, speaking on behalf of BISHCA, likes the draft because the mediation is “up front”. He questioned whether there will be enough mediators. That caused members of the committee to ask me if I thought we could put together a list of mediators who would work in this area. The bill and the draft require the mediators to be lawyers and to undergo 6 hours of CLE before being qualified. The committee was pretty critical of that 6 hour number feeling it to be inadequate time to learn all the federal rules necessary to bring about good results in mediation. My posting to the ADR list serve has already brought about 25 offers to take the training when available and take the cases when they arise. The committee is planning to mark up and vote the bill on Friday, if possible before the week long Town Meeting break. The committee did not get to review H. 533 on Friday due to floor debate that lasted late into the morning. That bill, dealing with military parental rights, passed the Senate on a fast track and was sent back to the House. The House Judiciary Committee should sign off on the Senate passed amendments Tuesday afternoon and, if they do, the bill goes to the governor for signature. Thanks for reading.

Thursday, February 18, 2010

Thursday February 18, 2010

Because the House stayed on the floor engaged in debate there were no afternoon committee hearings. Instead I went to the Senate Appropriations Committee to hear the presentation by the Chief Justice on the 2011 budget. An obviously ill Chief turned down a request from the Chair to return when he was feeling better, saying “this is too important”. He opened his remarks by saying that the 2011 budget request is built on the recommendations of the Commission on Judicial Operation, which he acknowledged was a “hot button politically”. The Chair, Senator Susan Bartlett, assured him that the Senate Judiciary Committee will take the bill up when it comes over from the House. The Chief seemed worried about the outcome, once again repeating that the political opposition is strong. Recognizing that this is the legislature’s call, he said that “if you don’t change the structure you have to pay for it”. The conversation then shifted into openings in the judicial branch; shortage of staff; furloughs; half day closings; judicial vacancies; security contracts, etc. After the late arrival of Senators Sears and Illuzzi, there was a discussion of video conferencing between regional correctional centers and courts, with Senator Illuzzi expressing his disappointment with the time it’s taken to get them in place. Senators Sears and Illuzzi have apparently talked about sharing costs in the northeast counties, apparently by some sort of regionalization of the superior, district, and family courts. There was no further detail or discussion of what that meant. Perhaps they are looking for alternatives to the CJO recommendations. Senator Sears did say that he listened to the probate bar on Monday in Bennington and has reservations about that part of the bill. It seems clear now that the five district probate court is really off the table. What is not clear is what will replace it. Stay tuned. The committee ended the testimony early, without ever giving Justice Dooley the chance to testify on the specifics of the request, saying “let’s wait for the House to act”.
The retention hearing last evening went much better. The follow up meeting with the judges turned into a roundtable discussion about many issues. The committee is always anxious to learn what judges feel about the retention process; how reviewing the survey results helps them become better judges; how can the process be improved; how can the branches of government work together better; how can rotation be improved; how can Vermont improve justice, etc.
I need to correct something I said as recently as yesterday. The deadline for getting H. 470 out of committee is not next Friday, the 26th. in fact, the committee will have until the Friday after the recess, or March 12th. That will certainly help the House Judiciary Committee but will result in the Senate losing a week or work time. Judge Davenport and I sat in with the committee this morning for a shortened session during which they discussed venue and units of a superior court. The committee seems to be tending towards keeping venue as it presently exists and may adopt language offered by the VBA. They also touched on the subject of the number of units and whether they should be legislatively created or created by court rule. The court is advocating the rule approach while the VBA is asking the legislature to create the units which should follow county lines. One committee member suggested that there be 14 units. The issue of staffing those units arose, again. And the committee now needs to deal with the E court as part of a unified superior court if there are 12 or 14 units. How does environmental court fit in if it’s already a statewide court? Obviously there’s much to do; it’s probably a good thing that the House has an extra week. Depending on today’s action calendar, if the committee has time to meet, they will address jurisdiction issues. Legislative counsel is working on another draft of the bill, incorporating changes the committee wants to see for discussion purposes. If they don’t get back to that today I expect it will wait until next Wednesday. In the meantime, House Government Operations took testimony about the retirement system and the incorporation of county employees into the state payroll.
Tomorrow morning I’ll be appearing at the Senate Judiciary Committee for the first time this session introducing two opposing witnesses on S. 279, the non unanimous civil jury bill. Somehow I’ll try to get to House Judiciary to listen to their review of the Senate passed version of H. 533, the military parental rights bill (at 9AM); the new draft of H. 590, the mediation in foreclosure bill (at 11AM); and House Commerce to hear testimony on UCIOA (at 10 AM). Just another day. Thanks for reading.

Wednesday, February 17, 2010

February 17, 2010

I’ve finally found a few minutes to report on what’s been going on Tuesday and today. We’re moving into crunch time if the House Judiciary Committee hopes to get the restructuring bill out of committee before Friday, February 26th when the Town Meeting recess begins. But this week the House Government Operations Committee returned to hearing testimony on the bill, H. 470. They are looking at issues surrounding the incorporation of county employees into the state system; the creation of new electoral districts for the probate districts; and the number of probate districts/courts/judges. I was able to finally present the VBA position on the Commission report to the Government Operations Committee this morning. Judge Davenport, who had testified earlier this morning, told the committee that the five probate district recommendation is not going anywhere. So the debate will be how to construct the district map and how many FTE judges there will be. The other morning witnesses were all probate judges: Judges Balivet, Bruce and Lewis. They addressed issues of staffing, budget, caseload, adequacy of time, benefits, etc. Judge Balivet said that it was hard for the probate judges to not feel as though there was a target printed on their backs. He said that the total judiciary budget is about $36M with the probate portion about $3M. Yet the commission recommended a $1M cut. Judge Davenport pointed out that there will also be significant staff savings as well as savings from the reduction in services in Grand Isle and Essex Counties.
While this was going on and I was there the House Judiciary Committee met to begin trying to reach some consensus on the bill itself. I understand that they discussed the E court again; jurisdiction issues; and issues of venue. Besides the general concept of unification there remain many smaller issues that when you drill down require a good bit of thought and debate. For example, yesterday Judge Manley and Judge Belcher jointly testified to the overlapping jurisdiction of family and probate court in minor guardianship cases.
You know I certainly welcome your feedback or questions on anything that I report to you here; my contact email is bpaolini@vtbar.org. I also welcome questions on bills that I don’t report on. If I can find the answer for you I will. Just as an aside, I recently got my first pushback on this blog from a reader. Let’s just refer to that reader as TGW. Anyway, TGW thinks that my recent reporting is more ‘advocacy” that reporting. Although I disagreed, I am now thinking what would be wrong with advocacy? After all this is the VBA’s blog. Maybe I’m not as impartial as some would like when I report on what I am doing or saying on behalf of the VBA Board of Managers.
Yesterday the Senate gave preliminary approval to its version of H. 533, the military parental rights bill. They will return to it on Friday. House Judiciary will look at the Senate passed language then also and decide whether to concur or request a committee of conference. We hope it’s the former so this bill can be sent to the governor for signature. Remember that if that is what happens, the changes to the law will take effect immediately. We’ll keep you posted.
I’m heading back to the statehouse soon for continued House Judiciary work on H, 470, followed by a 3:30 hearing in the Senate Appropriations Committee at which the Chief Justice, Justice Dooley and CA Bob Greemore are expected to make the judiciary’s case for its FY11 budget. Then at 5PM, the Joint Committee on Judicial Retention will give Judges Durkin, Howard, and Toor the opportunity to comment in response to last week’s public hearing. I’ll update you on these afternoon and evening events tomorrow. Thanks for reading.

Friday, February 12, 2010

Friday, February 12, 2010

As promised, here’s a quick summary of the public hearing on the retention of Judges Durkin, Howard, and Toor. Thirteen witnesses spoke to 7 of 8 members of the committee; the hearing lasted about one hour. Ten of the thirteen supported the retention of Judge Toor while two of those opposed it. They were litigants (well, at least one was) who questioned her judicial demeanor and both said she had prevented them from presenting evidence. There was no real detail and no questions were asked by committee members.
Those speaking in favor of Judge Toor’s retention were: Ruth Whitney, the Addison court officer; Rob Keiner; Betsy Gregory, a GAL at family court in Chittenden County; Tom Heilman; Thomas Powell, a friend and neighbor; Bill Sorrell, who related the unanimous support of his staff attorneys; Barbara Watts, the Washington Superior Court officer; and finally retired Justice James Morse.
Ruth Whitney, Hal Miller, Chris Killian, and Kathleen Lott, a docket clerk at E court spoke favorably in support of Judge Durkin. Only Justice Morse put in a good word for judge Howard who otherwise sat quietly through the evening without hearing his name mentioned. In short, an uneventful night in the process to retain these judges. Next Wednesday they’ll return, in theory to answer any issues raised last night. I expect another quick evening. I’ll report next week.
The Senate Judiciary Committee has decided to hear testimony on S. 279 next Friday. Here’s the bill in its entirety:
1 S.279
2 Introduced by Senator Campbell
3 Referred to Committee on
4 Date:
5 Subject: Court procedure; conduct of trial; verdict in civil actions
6 Statement of purpose: This bill proposes that in a civil action, the verdict or
7 finding of a number of jurors equal to at least 80 percent of the jurors serving
8 on a jury shall constitute the verdict or finding of the jury.
9 An act relating to nonunanimous jury verdicts in civil actions
10 It is hereby enacted by the General Assembly of the State of Vermont:
11 Sec. 1. 12 V.S.A. § 1950 is added to read:
14 In a civil action, the verdict or finding of a number of jurors equal to at least
15 80 percent of the jurors serving on a jury shall constitute the verdict or finding
16 of the jury.
18 This act shall take effect on July 1, 2010.
I am working with the Chair, Senator Sears to get Sam Hoar and Brad Myerson to re-do their presentation in Montreal on the pros and cons of non unanimous civil jury verdicts.

Thursday, February 11, 2010

February 11, 2010- Part 2

Because I made you wait so long for a blog post I’m posting twice today. Since I’ll be in Montpelier waiting for the 7 PM public hearing on the retention of Judges Durkin, Howard and Toor, I have some time on my hands. This morning I ended my post by saying that I was off to the House Judiciary Committee to present the VBA’s position on units, jurisdiction, and venue in a unified court system. But considering the importance of these issues and that fact the Chief Justice was presenting the Court’s position I was joined by VBA President Eileen Blackwood, also a member of the Commission on Judicial Operation. We testified jointly to the major points the VBA Board wanted the committee to hear. Those points are: the divisions should be jurisdictional. The units (we call for 12) should be county based and created by statute and not rule. (The proposal is to join Grand Isle with Franklin and Essex with Caledonia.) we call for hearings to be held in the two smaller counties. We are also calling for maintaining the existing venue rules. One compromise put on the table by the Administrative Judge is the creation of a transitional rules committee to deal with the myriad of issues that arise from the unification. The VBA has asked that it select the attorney members. Any such committee should include five attorneys, those with experience in civil, criminal, family, probate, and with experience in litigation involving self represented litigants.
I’m not certain where this will go as the committee ran out of time and didn’t react to or discuss what they heard this morning. But the pace is definitely picking up. The House Government Operations Committee put me on notice that it wants to work on the bill next Wednesday and Thursday. Those are the days that Judiciary reserved for its work time. So it appears that Judiciary may have heard from all the witnesses it feels it needs; they’re now shifting to deliberation and mark up. One issue was rescheduled from today to Tuesday though. On Tuesday, after adjournment from the floor, Judge Manley and Judge Belcher will testify. We will continue to stay with this until it’s done.
Tomorrow I’ll post something early reporting on tonight’s hearing. Thanks for reading.

February 11, 2010

I know I promised a report upon my return from the ABA Mid Year Meeting but I’ve spent two full days in the statehouse leaving me neither the time nor the energy to post something. For that I apologize and will try to get you up to date right now. It’s early Thursday morning (6:09 to be exact) and I finally have some quiet time to report to you. I returned to find the House Judiciary Committee working on H. 590, the bill that would mandate mediation in foreclosure proceedings. For those of you that may bring or defend these cases I recommend reading this bill. A number of witnesses have testified favorably on the bill while only a few have raised concerns. They include Josh Lobe, Chris D’Elia of the Vermont Bankers Association and the Lamoille Superior Court Clerk Kathy Hobart. Judges Cohen and Crawford support the practice of mediation and Judge Cohen went a bit further and proposed a sort of pre-filing certification. This could cover telling a plaintiff what he needs to bring suit, e.g., good title, the note, etc. Judge Crawford said that mediation always settles the case. He called for mediators to be lawyers, as the bill would require. His proposal would be to require mediation unless a court orders otherwise. The real issue here is the added burden and costs to the plaintiff and the obligations imposed on the court to compile and manage a list of qualified mediators. One witness saw this entire issue as one for regulation of lenders (predominantly out of state lenders) by BISCHA. In fact there is a Senate bill that would increase the power of BISCHA to do just that. H. 590 was drafted and is being advocated by Vermont Legal Aid and the Office of the Attorney General. The House Judiciary Committee seems prepared to move the bill soon.
It was nice to take a break from judicial restructuring for a day but on Wednesday the committee returned to H. 470 as it does every Wednesday and Thursday. The day started with half of the morning session devoted to the Environmental Court. The committee was interested in why the court was not part of the restructuring proposal and why it was not going to be unified into the Superior Court (the new one). The answers were that the court is already a statewide court and is functioning well and should be left as is. Well, that prompted at least one committee member to say why are we doing something different with the probate court when the testimony was pretty similar. Judge Durkin gave the committee a history of the E court. He was followed by two witnesses from VNRC- Brian Shupe and Jon Groveman- who said that the increase in efficiency of the court is negligible and they opposed consolidation as they feared it would exacerbate existing problems. Jon Anderson called the E court a huge success and saw no benefits to be gained by consolidation. Gary Kessler, the ANR enforcement and compliance chief, agreed.
After a quick break the committee focused on court clerk and manager issues. Tari Scott, Manager of the Windsor Family-District Court spoke of her experience of cross training staff to support both dockets. This is as essential piece of unification and will need to be done statewide. She said it took about a year and a half. Diane Lavallee, Chittenden Superior Court Clerk, argued strenuously against unification, calling it a “recipe for disaster”. She reported increased levels of stress among her staff and feared for job losses among county employees. Sherry Britton, who manages all four courts in Grand Isle County, made the plea for preservation of a full service court in that county. She was supported by David Carter who lives and practices there.
After the House completed its floor activities in the afternoon, the committee got together for some discussion and reviewed the three issues they heard about in the morning: E court; Grand Isle and Essex Counties; and court consolidation. This discussion time is sort of like taking a straw poll of committee members and directing legislative counsel (in this case Erik Fitzpatrick) to attempt some drafting for committee deliberation and discussion. The committee appears heading toward looking at unifying the E court into the new superior court but, to use their words, keep it “walled off” from the other divisions (civil, criminal, family, and probate). In a sense the probate division is being treated in the same way. What I think they want is something that looks more unified and manageable but will retain its unique features. For example, judges will not rotate in and out of E court; the existing “specialist” judges will continue to preside but could be subject to temporary short term assignments in others divisions as needed. H. 470 changes the E court venue by eliminating the requirement that hearings be held in the county where the property is located. The committee seems opposed to that and dislikes the language calling for venue to be determined by rule.
On the second issue, Grand Isle and Essex Counties, the committee seems headed towards approving the minimal staff presence as long as, to quote one member, there is “a vibrant court presence” in those counties. I think the committee will adopt the VBA Board recommendation that hearings continue to be held in those courts and not force litigants to travel. Of course, there will need to be rules adopted to address venue issues, etc. none of that could possibly be in place by July 1st so this transition will be gradual and there will be some bumps in the road.
Finally, the committee talked about courthouse consolidation. I think there are only four counties with a unified courthouse right now. So that raises the issue of a single court manager in each superior court. For example, in Windsor County the two courts are about 14 miles apart, I think. No one seemed to know the answer to where the new probate divisions will actually be. For example, the Fair Haven District Probate Court is to be eliminated by act of the legislature last year. But there was discussion about retained the courtroom; at least one committee member is asking about the cost of doing that. The same question was raised about the cost of renting space for the E court. Clearly they’re looking to save some money on facilities as they add back at least one or two probate judges. As you know the VBA Board recommended no fewer than 7 probate judges and it now appears the committee will move in that direction. But that requires that they find some savings elsewhere. So the chair asked late yesterday that the Court Administrator bring a proposal to the table to save money on facilities!
In summary here’s what I know as of right now. There will be a unified superior court; it may include E court. The committee wants the probate division to maintain its current jurisdiction. They agree on the following: one manager; expanding judicial bureau jurisdiction; expanding magistrate jurisdiction; require probate judges to be lawyers; consolidate probate districts BUT the proposal for 5 districts is “off the table”. What is not yet clear is the role of side judges. There is some support for keeping them in the judicial bureau to hear traffic and some for sitting with a superior judge at the request of either the judge or the parties. The committee wants to work on the following issues: facility consolidation; rotation reduction; collecting unpaid fines; reducing benefits for part time probate judges; vacancy savings on the trial bench; reduction in force in the CAO; not having the administrative judge be a sitting trial judge.
This morning at 9 I will return to testify on some remaining issues. The committee schedule lists the Chief Justice and me on: “Jurisdictional nature of divisions in unified court system/venue rules/multi-unit districts”. Now we’re getting into the nitty gritty of the language of the bill itself as opposed the Commission report. I’ll report back later today as I’ll be here until 7 tonight to attend the public hearing on the retention of Judges Durkin, Howard and Toor. I’ll try to get a report out on today’s events before the hearing tonight. As always, thanks for reading. Get back to me with questions or comments if you have any.