Friday, January 29, 2010

Friday January 29, 2010

I need to update you as my last report was three days ago. By the way, I will be attending the ABA Mid Year Meeting and will not be here next week. So my next report is maybe ten days away. You may have seen some news reports of the swift House passage of H. 533 the military parental rights bill. VBA Family Law Section Chair Penny Benelli and VBA Board member and past Chair of that Section Amber Barber were very involved in the drafting and testifying on the bill. Amber and Penny Benelli got some well deserved recognition yesterday from the House Judiciary Committee, from the Speaker of the House and from Gen. Michael Dubie for their work on H. 533. They were named during the press conference and during reporting of the bill on the floor. Congratulations to Amber and Penny.
A couple of other bills advanced this week and some new ones were introduced. As I mentioned earlier in the week, the felony statute of limitations bill has cleared the Senate along with the technical corrections of the Vermont Trust Code. The small estates bill passed the House. What’s new in the hopper is H. 590, the mediation in foreclosure bill; S. 279, a bill that would reduce the unanimity requirement in civil jury trials to an 80% level; H.663, a bill that proposes to require appealable arbitration for medical malpractice cases and to cap damages; and finally, of interest if you’re following judicial restructuring, is H. 641 a bill establishing a process to set county budgets.
For those of you that have testified at House Commerce or have followed uniform bills in that committee Chair Warren Kitzmiller has relinquished that post and Bill Botzow is the new chair. It was a surprise and I can’t say why that happened.
OK, so I’ve delayed writing about H.470 and judicial restructuring long enough. Again I spent Wednesday and Thursday following and participating in testimony. National Center for State Courts VP Tom Clarke was in town this week and met with both Judiciary Committees, both Appropriations Committees, and both Government Operations Committees. He explained the weighted caseload study and spoke mostly about technology. But he brought a national perspective to the discussion. This is happening everywhere. Forty eight states are having significant budget problems in their judiciaries. Re-engineering is the only way out of this current crisis. Solutions nationwide involve consolidation, altering venue, managing resources centrally, standardizing business practices and technology. He recommended that the court redesign itself in three waves. This bill reflects the first wave. The second wave (years 2-3) involves the court looking deeper into itself and its business practices. Wave three (3 to 5 years out) is technology. On technology Bob Greemore added that Vermont is beginning a high risk period by adding e-filing at the same time as a new case management system is being introduced. Even Tom agreed this could be a problem. Finally, in answer to Chairman Lippert’s question about whether there have been constitutional challenges to extreme budget cutting, Tom responded that the doctrine of inherent powers allows a court to order its funding agency (the legislature) to fund the courts! He correctly called this the nuclear option. No, I can’t imagine going there.
On Thursday, the probate judges organized some witness testimony in opposition to the probate court consolidation part of the report/bill. They all said the probate courts should remain as they are now. A trust officer from the Trust Company of Vermont Chris Chapman, attorney Dave Otterman, and attorney Mike Caccavo all opposed any consolidation- the Commission’s five districts or the VBA’s recommendation of seven. Other witnesses spoke to the ease of use and access of the probate courts and staff. The sides in this battle are by now well defined, with the VBA almost squarely in the center. There are only a few weeks left for the committee to mark up its bill and convince their colleagues to support it. But there’s so much more to do.
I was asked to comment on the issues that we heard most often during focus groups this spring and summer. I delivered a memo containing 11 topics, most of which were covered in the bill or the VBA position paper. One that was not is this:
“Some current practices could be changed. For example, rotation of judges is not efficient and terms should at least be lengthened. Law practice is becoming more specialized but in the name of cutting costs judges are being asked to become more generalist, and this is neither efficient nor conducive to good delivery of justice. More courts like the environmental court should be set up with specialized dockets. Litigants should be permitted to set the pace of cases so that fewer status conferences could be held. Judges should be able to take cases with them when they rotate, if continuity would be better for justice. Routine matters, such as continuances, could be handled by an administrative person rather than a judge.” Those were Eileen’s notes compiled from a number of focus groups. I think the judiciary committee may be looking into this. I also offered the VBA’s comments on the specifics of the H. 470. There were some changes we offered that were agreed to by Judge Davenport. We are still discussing others, some of which may be more difficult to resolve.

Tuesday, January 26, 2010

January 26, 2010

The Joint Committee on Judicial Retention will be meeting tomorrow at 5 to set its schedule for this year’s round of judges that want to be retained. Here’s what to expect. The first meeting will be with the three judges- Judges Durkin, Howard, and Toor. That will happen at 5 PM on February 3rd in Room 10 of the Statehouse. The public hearing will be on Thursday, February 11th at 7 PM in Room 11. As is customary the judges are invited back to respond to anything that may have been raised during the public testimony; that will occur on Wednesday, February 17th at 5 PM, again in Room 10. The Committee will meet to deliberate and vote on Wednesday, February 24th at 5 PM in Room 10. The plan is for the joint assembly to occur on Thursday, March 18th at 10:30 AM. I’ll let you know if any of these dates change. All of these meetings are open to the public and you should feel free to testify on the 11th if you desire.
The House Judiciary Committee’s work on H. 533, the military parental rights act is finished. It was voted out unanimously and will be up for action on Thursday. I expect the bill will be on the fast track, at least through the House.
Sorry for such a short update; more tomorrow. Thanks for reading.

Friday, January 22, 2010

Friday, January 22, 2010

Sorry I didn’t get to report anything yesterday but it was a full day both in and out of committee. A lot of what happens in the statehouse of curse happens away from the witness chair in the committee rooms. For example, I met with Judge Davenport about H. 533, the military parental rights act. I learned that she had met with legislative council and worked on a new draft of the bill. After circulating that draft to Amber, Penny and Lt. Col. Abbott, I immediately heard their objections. So that started me on a three way negotiation process where, since I had previously offered to work with all parties, got me back in the witness chair this morning to present what I think is an agreement or at least is close to an agreement pending some drafting changes. The bill is due back next Tuesday for, I hope, final action by the House Judiciary Committee. I expect swift floor action with rules suspensions and messaging of the bill to the Senate.
The rest of yesterday was spent following the judicial reorganization testimony in House Judiciary. Morning testimony from Court Administrator Bob Greemore covered the staff impact of consolidation. Without being too specific and where cuts will be made or who will be cut, the number of court staff will shrink from 210 positions to 175. I do have a chart of a draft proposal for what it’s worth or will be worth when this bill is done. I was also quite interested in another spreadsheet he distributed which showed the savings from the consolidation of probate judges down to five full time positions. The savings is about $714,000 (down from $1.3M today). If fourteen judges were retained but were to be compensated on a percentage basis of the Chittenden Probate Judge, the savings would be about $503,000. For example, since the Addison caseload (here I’m just using the first county on the list) is 36% of the Chittenden caseload the salary of the Addison Probate Judge would be 36% of that of Judge Fowler. OK, so this does little to encourage people to run for probate judge especially in the smaller counties. But it keeps 14 judges, one in every county. Good idea; bad idea?
The VBA met with Judge Davenport to express its concerns over language in the bill itself and will be presenting a memo to both the committee and the court early next week. Bob Pratt, Chair of the Probate and Trust Section, has reworked the probate districts from 5 to 7. That will also be provided to the committee next week. one thing I found quite interesting is the Bob Greemore did tell the committee that he would not have drawn the five probate districts the way the Commission did. Although he and others have told me that privately I remain a bit surprised that he testified to it. That fed right into the hands of those committee members that are having that same issue.
Now while all of this is going on in the House, the Senate has been active doing other things. For example, the Senate Finance Committee has approved S. 173, the technical corrections bill to the Vermont Trust Code. The Senate Judiciary Committee voted out S. 165, the so called act relating to eliminating the statute of limitations for felonies. Well, it’s not exactly that. Here’s what the bill now says:
Sec. 1. 13 V.S.A. § 4503 is amended to read:
(a) If a prosecution for a felony or misdemeanor, other than arson and
murder, is commenced after the time limited by section 4501 or 4502 of this
title, such proceedings shall be void.
(b) If a defendant knowingly and voluntarily waives the statute of
limitations in writing and with the consent of the prosecution, the court shall
have jurisdiction over the offense and the proceedings shall be valid.
Subsection b is new language proposed to be added to the present 13 VSA 4503. That bill is on the Notice Calendar, along with S. 173, for action next week.
For those of you who may be interested in weighing in on the budget process here is notice of a public hearing to be done by interactive television:
Joint Public Hearing on Fiscal Year 2011 budget
o n Vermont Interactive Television
Appropriations Committees
Monday, February 8, 2009, 4:30 - 7:00 p.m. – The House and Senate
Appropriations Committees will hold a joint public hearing on Vermont
Interactive Television (V.I.T.) to give Vermonters throughout the state an
opportunity to express their views about the state budget for fiscal year 2011.
All V.I.T. sites will be available for the hearing: Bennington, Brattleboro,
Castleton, Johnson, Lyndonville, Middlebury, Montpelier, Newport,
Randolph Center, Rutland, Springfield, St. Albans, Waterbury, White River
Junction and Williston. V.I.T.'s web site has an up-to-date location listing,
including driving directions, addresses and telephone numbers,
For information about the format of this event, interested parties may call
the House Appropriations Committee office at 802/828-5767. Requests for
interpreters should be made to the office by 12:00 noon on Friday, January
29, 2010.
Returning to judiciary issues, the retention process is set to begin with an organizational meeting of the Joint Committee on Judicial Retention next Wednesday, January 27th at 5PM. There are three judges standing for retention this year: Judge Durkin, Judge Howard and Judge Toor. The fourth, Judge Reiss, is of course now on the federal bench. By the way, I recently heard that the governor does want to fill her seat as well as the seat of Judge Joseph who has announced his retirement effective June 30, 2010. If the judicial branch was looking for some vacancy savings there, they need to look elsewhere. Rep. Tom Koch, who replaced Peg Flory on the House Judiciary Committee, is also replacing her on the retention committee. After next week’s meeting I’ll post the schedule of interviews and public hearing dates if you want to testify.
Thanks for reading. Have a nice weekend.

Wednesday, January 20, 2010

A busy Wednesday!

What a day. It started as most do with a committee hearing on judicial restructuring. Retired District Court Judge Paul Hudson testified by telephone saying that the recommendations of the Commission on Judicial Operation (CJO) both save money and make sense. But in response to a question by Rep. Koch about the probate judge matter, he admitted to “no huge degree of certainty” but would rely on the estimates from the National Center for State Courts. Remember they originally calculated 6.3 probate judges would be needed. Judge Hudson said “there will be some disruption” and compared it to the change from municipal courts to the district court in the late 60s.
Rep. Marek called three of the five districts unworkable, i.e. the northern and the two southern districts. Judge Hudson called for reworking the northern district or, surprising everyone, appointing an attorney as an acting probate judge to share the workload! He had no real response to Rep. French’s inquiry as to whether the weighted caseload study may have bee “a little skewed”.
I spoke with Rep. Sweaney, Chair of the House Government Operations Committee about what role it was going to play. She will not “have” the bill in committee but will work on it even though it’s still in judiciary. Her concern remains the number of probate judges (districts).
After an hour long break to consider H. 533, the military parental rights bill, which I will report on below, the committee heard from Eric Avildsen, Executive Director of Vermont Legal Aid. Eric handed out a memo that closely tracks the position of the VBA Board. VLA is strongly supportive of the bill, especially the unification. He first argued for full funding, taking issue with Chairman Lippert and Speaker Shap Smith’s comments in Montreal. In short Eric is most concerned with Vermonters’ access to the courts, especially the low income population and those Vermonters with disabilities. He also raised issues with only 5 probate judges (but is still working on what that number should be) and has concerns about access in the “satellite” courts of grand Isle and Essex Counties.
I think I forgot to mention that last week Judge Davenport provided the committee with a short memo of jurisdictional changes to improve efficiency of the courts. It contained two items: first, extend magistrate jurisdiction to establishment of parentage, temporary parental rights and responsibilities, and parent child. The second concerns consolidating proceedings in the judicial bureau by adding snowmobile/boating tickets and fire prevention tickets.
The most interesting part of the day was the afternoon testimony from VLS Constitutional Law Professor Peter Teachout and Legislative Counsel Erik FitzPatrick. They both agreed and disagreed on whether the legislature’s removal of the “adjudicative function” of side judges would violate the Vermont Constitution. Teachout said it does but offered a work around if side judges sat at the request of the presiding judge or of one of the parties. If so, participation would be mandatory and it would only be for evidentiary hearings where issues of credibility etc. would come into play.
Erik’s take was a little different. After reviewing what legislative history he could find from the 1974 constitutional amendment he agreed that the legislature does not have the power to eliminate the judicial functions of side judges. But he feels that the terms “judicial function” and “adjudicative function” mean something different. And for that he relies on In re Assistant Judge William Boardman decided in May 2009. the Vermont Supreme Court wrote: “Nothing in the constitution or its implementing legislation suggests that the scope of ‘judicial functions’ or ‘judicial duties’ subject to discipline is narrowly limited to adjudicative matters.” Some committee members did not agree with their counsel’s advice!
In the meantime your Board of Managers is looking at specific language in H. 470 and is recommending changes. We’re meeting with Judge Davenport tomorrow morning to present our issues to see if there may be some common ground. Either way, I owe a memo to the judiciary committee with our language, which I will try to get to them by Friday.
So, as I mentioned the committee took a short break to return to H. 533, the military parental rights bill. I reported on yesterday’s proceedings. As I wrote yesterday I didn’t get a chance to weigh in on behalf of the VBA Board’s support of the bill. Today I followed the testimony of Judge Davenport who addressed drafting issues and spoke to the impact of the bill on the family court without taking a position on the policy of the bill. She had a few concerns that were in fact already addressed during Penny and Amber’s testimony on Tuesday. I offered to work with all parties to bring the bill together and expect a redraft tomorrow morning. The Chair of the committee Bill Lippert then surprised all of us I think when he said he wants this done and out of committee by Friday! Now that’s a tall order but that’s the process sometimes. In addition, the committee seems to moving toward the bill’s taking effect immediately. That means that family lawyers are going to have to stay tuned and pay attention to this as it moves. The VBA will of course continue to post news items about it and may have to quickly put together an educational program so that all of you are up to speed on the changes. This bill, remember, has 88 sponsors!
H. 461, an act relating to small estates is out of committee and on the House calendar for Notice tomorrow. That means it will be acted on Friday. Here’s what it looks like now:
H. 461
An act relating to small estates
Rep. Koch of Barre Town, for the Committee on Judiciary, recommends
the bill be amended by striking all after the enacting clause and inserting in
lieu thereof the following::
Sec. 1. 14 V.S.A. § 1901 is amended to read:
When application is made to the judge of probate for the
appointment of an administrator or executor of an estate, there may accompany
the petition, the following:
(1) A true and complete inventory of the estate of the deceased,
appraised under oath at its true cash value;
(2) A receipt showing that the funeral expenses of the deceased have
been paid, or a personal bond in an amount determined by the judge of probate to be
reasonable, conditioned for the payment of the funeral expenses of said the
deceased, within one year from the date of death; and
(3) The will, if any.
Sec. 2. 14 V.S.A. § 1902 is amended to read:
(a) Upon receiving and filing such petition, the judge of probate may make
such investigation of the circumstances of the case and the facts set forth in the
petition, as he or she deems proper and necessary, the
(b) The court may grant administration of the estate to the
petitioner or some other suitable person forthwith without further notice, and
may issue letters of administration to the administrator or letters testamentary
to the executor without requiring further bonds, if from the petition and the
investigation it appears to the satisfaction of the court that:
(1)(A) the deceased left a surviving spouse or children of any age, or
both; or
(B) the deceased left a surviving parent or parents but no spouse or
(2) the deceased died seized of no real estate; and
(3) the personal estate of the deceased, appraised at its true cash value as
of the date of death, amounts to not more than the sum of $10,000.00.
Sec. 3. 14 V.S.A. § 1903 is amended to read:
(a) In intestate estates whenever it shall appear to the satisfaction of the
judge of probate that an administrator appointed under sections 1901 and 1902
of this title has paid or caused to be paid the funeral and burial expenses of said
deceased, and has paid over all the balance and residue of said estate in
accordance with the provisions of chapter 42 of this title,
the court may forthwith discharge the administrator without further accounting
and without notice.

Because of my schedule today I was unable to get down to a hearing in the Senate Finance Committee where Paul Hanlon, Mark Langan and Hal Miller were scheduled to address the committee on S. 173, the bill relating to technical corrections to the Vermont Trust Code. I was told by a staffer of the committee that the testimony went well; there was no opposition; and there were a few amendments that will be approved tomorrow afternoon and that bill will head to the Senate Calendar. I’ll get those specifics to you as soon as I see them.
Sorry that this post is so long but a lot happened today. Thanks for reading.

Tuesday, January 19, 2010

Montreal to Montpelier

The Young Lawyers Division Mid Winter Thaw was a huge success this weekend as, perhaps for the first time in anyone’s memory, the temperature was above zero! Finally, it was a thaw and lots of us took advantage of the weather to attend CLEs and to eat at fine restaurants. I had the opportunity to take part in the conversation with members of the Supreme Court, the legislature and the VBA on judicial restructuring and I think the attendees got a flavor for how the bill got to where it is now and what’s remaining to be done.
On Saturday morning I moderated the debate between Sam Hoar and Brad Myerson on the issue of unanimity of civil jury verdicts. The so called “brawl in Montreal” was about what we expected and each of the presenters was well prepared and passionate in his views.
Your Board of Managers met in Montreal and among a fairly extensive agenda decided to lend its support to the following initiatives: it support the Uniform Collaborative Law Act (about to be debated at the ABA House of Delegates); it also supported the Uniform Adult Guardianship Jurisdiction Act- S. 169: it supports the Uniform Child Custody Jurisdiction and Enforcement Act- H.50; it supported the Uniform Collateral Consequences of Conviction Act at the ABA level; finally it supported the draft of the Military Parental Rights Act. That bill is now H. 533 introduced this morning. Also this morning a joint hearing of two house committees- Judiciary and General and Military Affairs- heard from Lt. Col. Ellen Abbott, Penny Benelli, Chair of the VBA Family Law Section and Amber Barber, VBA Board member. Since the committees ran out of time, I’ll add my voice expressing the Board’s support at a later time.
The governor’s legal counsel, Susanne Young met with the Board and said the Commission on Judicial Operation is on a parallel track to what’s happening in the Executive Branch. The “Challenges for Change” report is asking the legislature to permit the Executive to “manage to the budget”. The governor supports the CJ and the CJO. Certainly the “flashpoints” are the assistant judges and the probate judges. He’ll let the process play out. He thinks and hopes the legislature will act. Revenues are stuck at the 2006 level. He is looking for proposals to roll back the estate tax and to streamline the permitting process.
Later today, after the governor’s budget address, the House Judiciary Committee should take final action on H. 461, the small estates bill. I’ll let you know tomorrow if they voted it out. Tomorrow and Thursday I’ll be back in committee on restructuring. I’ll try to report on progress, or lack thereof, as soon as I can get back here to write something.
Thanks for reading.

Wednesday, January 13, 2010

Wednesday January 13, 2010

Wednesday was the longest day so far for the House Judiciary Committee as it devoted the entire day to the restructuring report and bill. Justice Johnson was the first witness in the chair as she reviewed the statement of the commission’s principles. Administrative Judge Davenport followed with some specific examples of what unification would mean and how it would operate. I was the last of the morning’s witnesses and had the committee’s attention for about 45 minutes. My testimony centered on the report of the VBA Board and, for the first time, the committee began to hear a different perspective on the work of the commission. As those of you that have read both the commission report and the VBA Board report, you know that they are very similar for the most part. So, my testimony focused on the probate court consolidation and the VBA Board opinion that 5 probate districts and 5 probate judges just would not deliver the service Vermonters expect and deserve.
I stated the VBA’s principles that underlay our report and they are two: we believe in full funding of the judiciary and maintain that it should not be treated as a department, agency or program of the executive branch. Secondly, we support the concept of unification of administrative management of the judicial branch- unification under the control of the Supreme Court. I opened and closed with that message. And I reminded the committee that the charge to the commission was fivefold before the additional one to find $1 million in savings in the judicial budget. I asked the committee to not allow that final add on (added one year after the commission was formed) to swallow the initial reason for its creation. The commission did find a million dollars in savings even though some of the commissioners did not like the recommendation they ultimately sent to the legislature. My message was, in short, to work on unification giving the court the management authority to make necessary changes to meet future budget challenges during future recessions. I took that position even if the savings aren’t attained in this budget year. That’s probably not likely to happen, actually as the chair of the Judiciary Committee wants to see some savings in the bill that emerges from his committee. Fine; there are possibilities for savings in other areas that wouldn’t require dismantling the probate court system as we know it.
After lunch the committee devoted its time to the probate court’s position. They heard from Attorney Ed Miller representing the probate judges as well as Judge George Belcher and Judge Toby Balivet, President of the Probate Judges’ Association. In short, they are asking the committee to reject the consolidation and maintain 14 probate courts as presently exist. Judge Belcher’s message was pretty clear- the savings from consolidation don’t equal the reduced access to justice that would result. He did comment on the language of the bill as it relates to jurisdiction of cases in a combined superior court with civil, criminal, family and probate divisions. The bill is pretty vague as to which case goes to which division and there is no guarantee that probate cases will go to the experienced probate judge. In fact, the VBA Board will be considering the language of the bill in this area and others at its meeting on Friday in Montreal. As soon as the Board settles its position, I will deliver the language to the judiciary committee and let you know what we’re offering. At least one committee member wants to retain the county based delivery of probate services even though it can be unified into a “superior” court. This may change staffing but probably not the number of judges. We’ll have to wait to see how this all works out.
Judge Balivet addressed the committee on the numbers. His calculation was that the savings the commission claims to be $1.2 million is really more like $440,000. the committee chair announced that he’s asked JFO (the Joint Fiscal Office), a non partisan office of the legislature to run the numbers. The judge made reference to the weighted caseload study the commission relied on which resulted in 6.35 probate judges. He did a salary and benefits calculation and came up with 7 probate judges; this is the minimum number the VBA Board thinks would work based on input from Bob Pratt. Again, the same committee member interested in retaining the county based system said his calculation resulted in 9. so the challenge is finding a workable solution from 5 to 14 judges and its resulting financial consequences.
I don’t know how long this process will take. I did submit names of members who responded to my emails to the Elder law and Probate and Trust Law Sections asking if they would like to testify. I hope the committee finds the time to hear from all of them. There are many others who will probably weigh in; some are: Vermont Bankers’ Association; Vermont Funeral Directors’ Association; Vermont Hospital Association; Vermont Health Care Association; Committee of Vermont Elders; Vermont Legal Aid Senior Citizens Law Project; and Vermont Adoption Council. And the there’s the Senate.
I’ll be out of the building for the next two days traveling to Montreal; attending the VBA Board meeting and taking part in a couple CLEs. I’ll report back next week. Thanks for reading.

Tuesday, January 12, 2010

Tuesday January 12, 2010

This morning the House Commerce Committee heard testimony on H. 480 a bill that seemed simple on it face but as always happens quickly got much more complicated. The bill as written would require that articles of termination of an LLC include a statement that all members of the LLC have received written notice by certified mail. OK; that’s easy enough to understand. The bill’s sponsor related a story of a constituent who was a member of an LLC that was terminated without notice to him. And the fix seemed simple in the bill as drafted. But enter the Office of the Secretary of State who was concerned that they might be put in a place of having to verify the “proof” that a member was notified. That they didn’t want to do nor could they do. They were, however, willing to amend their termination form to include a check off that notice had been provided to members.
Well the committee went round and round with alternative language dealing with certified mail; return receipt requested; first class mail; proof of receipt; proof of mailing, etc. I don’t know where it will end or what it will say when it’s over. They may in fact return to it later today. But in the usual legislative fashion something that seemed simple got more and more complicated as the morning went on. I’ll let you know what the bill looks like when it hits the House floor. But not to worry; there’s still the Senate.
On the restructuring front, tomorrow will be a big day in House Judiciary. After Justice Johnson and Judge Davenport testify before the committee I’ll be speaking to them about the VBA Board position. The afternoon schedule right now shows Judge Belcher and Judge Balivet on the witness list. I also recall that Assistant Judge Colvin from Bennington County will be testifying late tomorrow or Thursday. So the next two days will open the committee to some alternative approaches to the report of the Commission. And for those of you headed to Montreal for the Young lawyer’s Division Thaw weekend, please join us at 4:15 on Friday after the Professionalism CLE to hear more about restructuring and to share your views with members of the Commission and members of the legislature.
I’ll post something tomorrow after the dust settles. Thanks for reading.

Monday, January 11, 2010

January 11, 2010

I attended the House Judiciary Committee hearing Friday morning on H. 461 and heard the testimony of one of its sponsors, Rep. Anne Donahue of Northfield. She is attempting to amend 14 VSA 1902, the small estates section. She related the story of the untimely death of her 22 year old nephew, unmarried and without children. Even though his estate was minimal, the small estate process was unavailable to his parents because he left neither a surviving spouse or children. H. 461 would amend this section by expanding its applicability by adding to the present law “the deceased left a surviving parent or parents but no spouse or child. It continues the limitation of applicability to estates with no real estate and valued at less that $10,000. There were really no questions from committee members and no objections either by me or the Vermont Bankers’ Association, the only others in the room at the time.
Although the committee has not yet posted this week’s schedule, I expect to be able to present the VBA Board’s position on judicial restructuring this Wednesday. As of last week, the plan, as I understood it, was that the committee is going to hear from Justice Johnson, Judge Davenport and me on Wednesday morning. I’ll keep you posted.
I thought you might be interested in the following quote concerning restructuring from the Governor during last week’s state of the state address:

Access to our courts and the timely resolution of cases is one of the
fundamental obligations of state government. Ensuring that Vermont’s judicial
system is financially sustainable is of utmost importance. In the past year, the
Judiciary has pitched in to help meet our fiscal challenges. While furloughs
and occasional Court closings were necessary, they are not acceptable longterm
The recommendations of the Commission on Judicial Operations provide a
blueprint for a stronger and more affordable system of justice. I know some
ideas are controversial; some changes depart from long-held traditions; and the
necessary rebalancing will affect certain districts and constituencies. But like
all of our decisions this year, narrow interests must take a backseat to the
broader public interest. The General Assembly must give these
recommendations due consideration, finding in them, as I have, a path forward.

Thursday, January 7, 2010

Thursday January 7, 2009

I’m sorry I didn’t get back here yesterday to post anything about the restructuring testimony. It actually lasted all day and continued into early today. I’ll try to bring you all up to speed in this post. Wednesday opened with a joint meeting of three house committees: judiciary, government operations, and appropriations. The Speaker of the House, Shap Smith, welcomed legislators and commission members and advised that the commission’s work will be a priority for the house. He sees the judiciary at a critical point in its history. In fact, the House Judiciary Committee has committed to working on it every Wednesday and Thursday until the bill passes the House and moves over to the Senate.
The commission members present then outlined the report to the assembled committees. The CJ opened with some general comments concluding with “our funding issues threaten the civility of the state of Vermont and access to justice”. Justice Johnson followed by saying that unifying the court system will provide better service at less cost and increase access to justice. She talked about the e-filing system which will be rolled out over the next three to five years and the use of pro se “service centers” with a trained employee ready to help self represented parties. She predicted a $1.2 million savings by reducing middle management and shifting resources. VBA President Eileen Blackwood charted the staffing of a unified court as compared to the state-county hybrid system we now use. Trial Judges Grearson and Manley then outlined the proposals for changing the probate courts and the jurisdiction of side judges respectively. Court Administrator Bob Greemore went through some budget numbers, the most significant of which may be that the five probate judges that remain will be paid at the level of a magistrate or hearing officer and not as a superior judge.
The House Judiciary Committee continued with the report of the commission in its afternoon session. By the way, the newest member of that committee is Barre Town Representative tom Koch, a long time VBA member. Tom replaced Peg Flory, now a senator. The afternoon presentation started with commission member Dick Marron, a former representative from Stowe who talked about side judges and county budgets. Tom actually asked why the commission didn’t recommend the state takeover of county courthouses. Clearly this would only add yet another landmine in the path of restructuring. Tom also questioned the cost of keeping the Grand Isle and Essex courts open with one staff person in each location. Then Justice Dooley took over and ‘walked” the committee through the bill outlining where in the bill is the language implementing the major revisions of the report.
The committee continued into Thursday as it began working up a schedule for how to proceed. It appears that next Wednesday, they want to hear from Justice Johnson and the underlying principles the commission adopted. She will be followed by testimony from Administrative Judge Amy Davenport and then I will present the VBA Board position on the commission’s recommendations. On Thursday, the committee will try to schedule time for the probate judges and the side judges to present testimony. The National Center for State Courts would like to present at the end of January. Other dates remain to be filled in and I’ll post that as soon as I know what’s planned. Tom Koch asked for testimony as to why the environmental court is not part of the restructuring recommendation. The chair concluded today’s session by saying that anything that comes out of his committee “must save $1 million”.
That same committee wants to spend some time on a military parental rights act which was mentioned by General Dubie in his briefing of the legislature on Tuesday morning. That should happen during the week of the 18th. There is no bill yet but it was drafted by the VTANG in collaboration with some members of our family Law Section. The VBA Board will be reviewing it at its meeting in Montreal next week.
Just to prove that restructuring isn’t the only show in town, yesterday Carl Lisman, one of our uniform law commissioners, spent the afternoon with the House Commerce Committee discussing changes to UCC Article 7 and to the Uniform Common Interest Ownership Act. I wasn’t there as I was across the hall doing, what else, restructuring! Anyway it appears that this is just getting started also; I’m not sure yet whether to expect action this year or next. Also today Willem Jewett introduced H. 476, a bill dealing with real property. Here is both the link and its statement of purpose:
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.”
On Friday morning, Rep. Donahue will present H. 461, a bill that would broaden the range of estates which can qualify for treatment as small estates by permitting the probate court to hold small estate proceedings for a decedent who dies with surviving parents but without a surviving spouse or child.
Here’s the link to that bill:
I’ll report back after the 10:30 hearing tomorrow.
Thanks for reading.

Tuesday, January 5, 2010

Opening Day

The opening gavel has fallen and the session has begun its 16 week journey to the beginning of the campaign season. Although today is mostly about seeing friends and catching up, a number of bills were introduced and sent off to committees of jurisdiction where their fate is anything but clear. What I mean is that this session is all about the budget and I wonder how much time there will be to devote to other issues. In the second year of a biennium, the deadlines are earlier and harder. The so-called “crossover” date is usually about the end of February when the Town Meeting recess begins. Crossover means that, without a rules’ exemption, bills must be on the Notice Calendar by that date in order to guarantee consideration by the other chamber. There are exceptions, of course. That doesn’t apply to “money” bills- the appropriations, transportation, capital, or pay acts, or to any bill that the Rules Committee exempts. Anyway, with so many bills still pending from the first year of this biennium, plus those being introduced now, there will be too much to do in not enough time.
But here is a sampling of some of the bills of interest to the VBA. Of course, the most significant is the judicial restructuring bill, H.470. It is a 160 page bill that must be analyzed closely and will no doubt be scrutinized by at least six committees of the House and Senate. Representatives Grad and Donahue have introduced H. 461, a bill that would broaden the range of estates which can qualify for treatment as small estates by permitting the probate court to hold small estate proceedings for a decedent who dies with surviving parents but without a surviving spouse or child.
On the Senate side, Senator Campbell introduced S. 165 a bill that would eliminate the statute of limitations for felonies! I’ll send this to our Criminal Law Section for their discussion. He also introduced S. 169, the uniform adult guardianship and protective proceedings act. The statement of purpose is:
This bill proposes to enact the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act in Vermont. The act establishes which state has jurisdiction to make the initial guardianship decision, provides for transfer of guardianship cases between jurisdictions, and allows recognition of an out-of-state guardian’s authority to deal with issues in the state on a limited basis.

Senator Illuzzi has introduced two bills that may be of interest to some of you. The first, S. 172, makes some changes to the uniform common interest ownership act. The statement of purpose of the bill is as follows:
This bill proposes the following changes to the uniform common interest ownership act: (1) The bill proposes to eliminate the creation of statutory liens for fines imposed against a unit owner. Statutory liens would continue for unpaid assessments against the unit. (2) The bill proposes to require the association to notify the unit owner of alien against the unit at least 30 days prior to foreclosing on the lien, and to notify the owner of the amount of unpaid assessments the owner needs to pay in order to discharge the lien. Failure to provide the required notice prohibits the association from filing a foreclosure action against the unit. (3) The bill requires the association to discharge the lien within 30 days after the unit owner pays the unpaid assessments, and to notify the unit owner of the discharge within ten days. Failure to discharge the lien in a timely fashion results in civil liability against the association in the amount of $25.00 per day, up to a maximum of $5,000.00 in damages.
His other bill is S. 155 which would permit a judge to hold another judicial elective office. This is in response to an issue involving one of the Essex County side judges who is also a probate judge and who ran for a position as selectman! This bill would apply retroactively if passed as written!

Finally, Senator Nitka has introduced S. 227, the uniform child custody jurisdiction and enforcement act. This bill accompanies H. 50, introduced last year and still pending in the House Judiciary Committee. The purpose of both bills is stated as follows:
This bill proposes to revise the law on child custody jurisdiction in light of federal enactments and inconsistent case law among various jurisdictions. The bill provides standards for which states can exercise original jurisdiction over a child custody determination, enunciates a standard of continuing jurisdiction, and clarifies modification jurisdiction. Other aspects of the bill harmonize the law on simultaneous proceedings, clean hands, and forum non conveniens. The bill also proposes to provide for a remedial process to enforce interstate child custody and visitation determinations. In doing so, it brings a uniform procedure to the law of interstate enforcement.
The VBA Board will be considering supporting this bill at its next meeting in Montreal next week. The Family Law Section has indicated its support for it.

Finally, Senator Cummings, Chair of the Senate Finance Committee introduced S. 173, a bill that would make technical corrections to the newly adopted Vermont Trust Code.

I’ll be back to you tomorrow after the Commission on Judicial Operation makes its presentation to, now, three House Committees- Judiciary, Government Operations, and Appropriations. That may take all day. It is scheduled for 9 to noon and again after the House adjourns for the day. (The House goes into session at 1Pm on Wednesdays

Monday, January 4, 2010

The Legislature Returns

I did promise you that I’d be back to posting when the legislature returns and they’re back tomorrow! You’ve no doubt been reading the news about the state’s budget woes which are going to continue for at least two more fiscal years if not beyond that. In this session there’s Vermont Yankee to deal with along with education funding, highway and bridge funding, health care, etc. And, of course, we’re concerned about the report of the Commission on Judicial Operation. I hope that you’ve all had the chance to read it as well as the report of the VBA Board of Managers in response. Our report can be found here: It will also be printed in its entirety in the next issue of the VBA Journal.
First and foremost the VBA Board supports full funding of the judiciary as it always has. It also understands and supports a unified management structure of the judicial branch. Where the Board disagrees with the Commission is mainly in the recommendations about the probate court. The VBA Board has serious concerns about the changes the Commission has recommended and will work to oppose that portion of the bill when it is presented.
We expect that the bill will originate as a House bill. Although I have not yet seen it, I know that the two House committees are meeting jointly this Wednesday at 9:30 to hear a presentation on the report. The two committees of jurisdiction are the House Judiciary Committee and the House Government Operations Committee. I have already shared the VBA position with the chairs of these committees as well as their counterparts in the Senate and the appropriations committees in both chambers. It’s time for you to become involved in this if you have not yet been. Talk with your legislators about the changes; how you think they’ll affect the courts you appear in most often; share your ideas on better and more efficient ways to deliver justice. The discussion will be long before the session ends in May. Just because there is a Commssion report and a VBA report doesn’t mean that more isn’t coming. I know the association representing the probate judges has retained a lobbying firm to press their case. I expect that the assistant judges will have representation to argue for the retention (or the expansion) of their judicial role. There will be lots of moving parts to this and, if a bill does in fact pass and go the governor (if, I mean if) it may not look like anything that’s on the table right now. Sometimes, it looks so different that the proponents of January end up being the opponents in May. What a fun time of year.
Anyway a lot more is happening here at the VBA. our Collaborative Law, Family Law, Criminal Law, Elder Law, Probate Law Sections have all been working on proposed legislation that is being considered by the VBA Board of Managers for possible introduction in 2010. A special subcommittee of the Business Association Law Section is working on a rewrite of our non profit corporation statute. This is something that will take until the 2011 session.
I’ll report back after the opening tomorrow and again after the Wednesday morning hearing.
Thanks for reading.