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.