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.