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.
Thursday, February 25, 2010
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.
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.
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.
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:
BILL AS INTRODUCED S.279
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:
12 § 1950. NUMBER OF JURORS REQUIRED FOR A VERDICT IN A CIVIL
13 ACTION
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.
17 Sec. 2. EFFECTIVE DATE
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.
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:
BILL AS INTRODUCED S.279
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:
12 § 1950. NUMBER OF JURORS REQUIRED FOR A VERDICT IN A CIVIL
13 ACTION
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.
17 Sec. 2. EFFECTIVE DATE
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.
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.
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.
Subscribe to:
Posts (Atom)