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.
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