Senate Judiciary Begins Work on Judicial Restructuring

What was planned as the initial walk through of H. 470 by legislative counsel for the Senate Judiciary Committee turned out to be an action session as well as an information session. The Chair of the committee immediately objected to the provision in the House passed bill that requires probate judges to be lawyers. He went as far as to say that “it’s the most damning part of the bill and I will vote against the bill if that is in it”. He was not alone in that sentiment. There was objection to the court administrator being the person to hire the probate registers. The probate judge and the court administrator should consult and work together on selection of a register. That didn’t seem an impossible issue however. There was objection to removing the de novo appeal from probate to superior court. Two committee members objected to that language and the committee will hear testimony on that next week.
The committee took an immediate position on the role of assistant judges. They voted 4-0-1 to keep AJs doing what they do today BUT asking the counties to contribute to their salaries. But, two committee members want to talk about the small claims docket, having heard complaints about AJs and small claims cases. The provision that eliminates the dedicated number of staff to the E court drew the ire of two committee members.
There is language in the bill that extends the jurisdiction of magistrates to establishing parentage, PR&R and PCC. It also subjects magistrates to the retention process. Presently they are not retained as judges are. At the expiration of their 6 year terms, the governor either reappoints them or not. Then the Senate confirms the appointment. The Chair felt that subjecting them to retention reduces the power of the Senate. He asked legislative counsel to see that the language of their jurisdiction gets put in the appropriations bill (the “big” bill) because H. 470 is “not a must pass bill”.
After the morning break the court administrator Bob Greemore, took the witness chair and outlined the scenario of the next four years if restructuring does not happen. He handed out a spreadsheet showing the committee how the court would look if it had to absorb cuts of $1 million for the next four years. Services and staff would be cut drastically. I think some counties may eventually see services terminated. He described the current state of the judiciary including the loss of one furlough day a month as well as the time lost due to the weekly half day closings. Between the vacancies in judgeships as well as the closings the courts are losing almost 20% of their “judge-days”. The committee listened intently to his testimony and reacted less than it did earlier. There was a question about the redirection of the small claims filing fees to the state. The $700,000 in filing fees presently goes to the counties as the superior courts handle small claims. That money would go to the state to help offset the state’s taking over the county employees. The AJs have told the Chair that those fees are the “fee for space” for use of the county court buildings. That issue is left for another day.
The committee returned again to the probate court discussion, this time asking where the $853K savings will come from. Greenie told them that $410K is saved in probate judge salary while $440 comes from staff consolidation. There followed some general discussion about outside practices for the probate judges and the benefits package they receive. Some members felt there should be no outside practice while others thought that benefits should be prorated. Again, this is a discussion for another day.
Changing the subject, yesterday the Senate Judiciary committee voted out H. 461, the small estates bill earlier passed by the House. It expands the definition to include any individual who dies leaving no real estate and less than $10,000 in value of the estate. That should see quick Senate action next week and head to the governor for signature. The House is spending today and tomorrow on the floor in debate on four major “must pass” bills: the miscellaneous tax bill; the budget or “big bill”; the transportation bill; and the capital bill. All will take the two days and then next week, House committees will return to begin (continue) work on bills that came over from the Senate.
Thanks for reading.

An Outline of H. 470 as Passed the House

Here are the major topics and the sections where each is covered. I’m not guaranteeing I got every one of them but it’s a good start to reading the 180+ page bill.
Unification, Jurisdiction , Venue: 1, 7, 7a, 7b, 7c, 7d, 7e, 7f, 9, 11
Consolidation of Staff: 37, 237, 238, 238a
Probate Court: 17, 22, 199
Assistant Judges: 8, 14, 55a
Magistrates: 29, 36
Environmental Court: 3
Courthouses: 163
Transitional Provisions: 238

H. 470 Passes the House

In an overwhelming voice vote, the judicial restructuring bill took its first steps towards becoming law. As often happens, yesterday's 104-40 roll call vote was today followed only be a voice vote with little opposition. More amendments were offered today and all were defeated except one: the court administrator will, in the future, distribute the rotation schedule of trial judges electronically to all attorneys. The Senate Judiciary Committee will hear from witnesses tomorrow morning and not on Friday as previously scheduled.
There is a very long way to go before work on this bill is done.
Thanks for reading.

H. 470- its first test in the House

The House just advanced the judicial restructuring bill to third reading by a vote of 104-40. It had previoulsy defeated two amendments, one by a voice vote and one by roll call. The first amendment to allow assitant judges to sit with a superior judge in the civil and family division upon request of a party was defeated 108-38. The second, to keep the 14 probate judges as we presently have, was defeated by a voice vote.
More amendments are expected tomorrow morning before third reading. After debating and voting on them, the question will be "Shall the bill pass?" I expect the vote to be similar to today's.

Monday update

I forgot to add in the results of the retention vote of last Thursday. Here they are. Thanks for reading.


For Superior Judge David A. Howard
Total votes cast .........................166
Necessary for a majority .............84
For retention .........................162
Against retention ......................4

For Superior Judge Helen Toor
Total votes cast .........................166
Necessary for a majority .............84
For retention .........................160
Against retention ......................6

For Environmental Judge Thomas S. Durkin
Total votes cast .........................165
Necessary for a majority .............83
For retention .........................155
Against retention ....................10

Monday, March 22, 2010

Thank you to all who attended our session on judicial restructuring at the Mid Year Meeting on Friday. I want to especially thank Rep. Tom Koch and Court Administrator Bob Greemore for their participation in the presentation. Tomorrow the House will take up the bill for “second reading”. Under our rules, a bill must pass each chamber twice; the questions presented are: on second reading, “shall the bill be read a third time?” Then, on Wednesday the bill returns with the question “shall the bill pass?” If successful it goes to the Senate where the Senate Judiciary Committee has already scheduled two mornings of hearings. Remember that Senate committees only meet for a half day since each senator sits on two committees. Here is the committee’s schedule:
Thursday, March 25, 2010
9:00 AM H. 470 - An act relating to restructuring of the judiciary
Walk Through the Bill - Comparison - House Changes
Erik FitzPatrick, Legislative Counsel, Legislative Council

10:15 AM H. 470 - An act relating to restructuring of the
judiciary
Toby Balivet, Judge, Caledonia County
Amy Davenport, Administrative Judge, Judiciary
Robert Greemore, Court Administrator, Court Administrator's Office

Friday, March 26, 2010
8:30 AM FLOOR

9:30 AM H. 470 - An act relating to restructuring of the judiciary
Toby Balivet, Judge, Caledonia County
James Colvin, Assistant Judge, Bennington Superior Court

11:00 AM H. 470 - An act relating to restructuring of the judiciary
Committee Discussion with Erik FitzPatrick, Legislative Counsel

It's Time to Weigh In!

Here is a link to a 4 page summary of the judicial restructuring bill H. 470.
https://www.vtbar.org/Upload%20Files/WebPages/CLE/midyearmeeting/2010mym/Materials/7judicial/overview.pdf

We’ll be using it during the panel discussion today at the Mid Year Meeting. But even if you are not able to attend you should review so that it’s clear what the bill does and, more importantly, what it does not do. Now it’s time to get involved and, on behalf of the VBA Board of Managers, I’m asking you to contact your House member(s) now- this weekend. The bill should be debated on the floor of the House on Tuesday; it’s crucial that your representatives know how you feel about the changes. The VBA has worked long and hard on improving the initial proposal and conveying what our members told us. We think the present version of the bill comes as close to what most asked for that it should pass the House. You can help make that happen. Contact your representatives and urge them to support H. 470. Thank you. And thanks for reading.

Tuesday, March 16, 2010

Well, both the Senate and House Judiciary Committees have advanced bills that they have been working on to the respective bodies for floor action. The Senate Committee has completed work on the non unanimous jury bill, S. 279, by rewriting the bill to require an 11 of 12 majority to reach a verdict. The bill can be read here: http://www.leg.state.vt.us/docs/2010/calendar/sc100316.pdf.
(Scroll down to page 409). The bill sunsets this law on January 15, 2015. In the interim, the court administrator must report to both judiciary committees whether the number of hung juries or the average award of damages has changed; whether there has been an impact on medical malpractice cases; and any positive or negative impacts on the court system itself.
The House Judiciary Committee, for its part, has advanced H. 590. the foreclosure mediation bill, to the Calendar. It can be read here: http://www.leg.state.vt.us/docs/2010/calendar/hc100316.pdf. (Scroll to page 552). It has not changed from my report to you last week before I left town for my event at the ABA. Finally, and perhaps most significant of all, is H. 470, judicial restructuring. Read it here: http://www.leg.state.vt.us/docs/2010/calendar/hc100316.pdf. (Again scroll to page 440).
Here’s what I expect will happen this week. After the crossover deadline, the calendars of both chambers are full. That means most of the legislative day is spent, not in committee as usual, but on the floor in debate. The House and Senate must each vote up or down on its bills and advance (or not) them to the other chamber for work prior to the expected April 30th adjournment date. The other thing happening this week is the joint assembly to vote on the retention of Judges Durkin, Howard, and Toor. That will happen Thursday at 10:30. The only real committee work I see this of interest to us is later today (2:30) when the House Appropriations Committee is set to review H. 470. Remember that when Judiciary added back two probate judges (for a total of 8 but 7 FTEs), it needed to find the way to pay for that. Appropriations will try to resolve that today. That committee has a crossover deadline of this Friday, the 19th, after which the bill can be debated on the floor. There is still much to be done by the Judiciary Committee to assure all House members understand just what they are voting on and what the bill does and does not do! So, if Appropriations takes until this Friday to finish its work on the bill, debate will take place next week, probably beginning on Wednesday. Arrival of the bill in the Senate may be Tuesday, March 30th.
I’ll report what I learn from the Appropriations presentation later today and will continue to follow the progress of all three bills during the two days I’ll be in Montpelier this week. As you know our Mid Year Meeting is this week and I’ll be in Burlington on Thursday and Friday. Don’t forget we’re doing a one hour briefing and discussion on judicial restructuring on Friday from 10 to 11. The text of the bill has been uploaded to the materials for the Meeting and will be on the CD we’re giving to attendees. If you want to attend that session and follow along it may be smart to bring your laptop and the CD; printing out a 183 page bill is crazy! Anyway, as always, thanks for reading. Get in touch if you have questions. See you on Friday.

Thursday March 11, 2010

As I mentioned yesterday I am away at an ABA meeting but am able to give you this update as provided to me by someone who has knowledge of what happened on Wednesday and this morning.
"Yesterday, House Judiciary heard from Bob Greemore about possible sources for the $250,000+/- savings they need to find to make up for the fact that they’ve added two FTEs to the Probate Judge count proposed by the Commission. [So there will be six full-time probate judges and two half-time probate judges for eight probate election districts altogether. Half-time judges are in Franklin-Grand Isle and Addison.]
Then they moved to assistant judges. The Committee had a consensus that Assistant Judges should no longer sit in their so-called “side judge” role. The Committee had consensus that whatever is ultimately decided, the AJs need a job description; they need to meet training requirements; the training needs to be under the auspices of the Court Administrator’s Office; and those who run and are elected are expected to fulfill the job description. [In other words, it’s no longer voluntary as to whether or not AJs sit on cases for which they’re eligible, once they’ve successfully met training requirements.]
Today, after further discussion, the straw poll of the Committee was that AJs would have no “side” judge responsibilities; no small claims responsibilities; and no municipal ordinance responsibilities, but that they would have traffic responsibilities.
The Committee also decided that although probate judges must be lawyers, Probate Judge Hodgdon would be grandfathered so he could continue to sit as a probate judge so long as he continues to be elected.
Magistrates will be subject to retention.
There will be language regarding a transitional period for ADA compliance by county courthouses that will allow for planning and costs to be placed in capital bill.
They changed the language of the current draft re: probate registers. Now it will say something along the following lines: the court administrator will designate a probate register in each unit, and the probate register can designate additional registers with approval of the court administrator."
Tomorrow is the committee's deadline. I'll post a link to the final bill as soon as I have it. Thanks for reading.

Wednesday March 10, 2010

Here’s a quick update on what happened on Tuesday. The House Judiciary committee did complete its work on H. 590, the mediation in foreclosure bill. The vote from the committee was 7-2-2. The Chair decided to hold the bill until Friday when it will be delivered to the House clerk’s office. Once a bill is delivered, it goes on the Notice calendar the next day. Then a bill advances to the Action Calendar on the next legislative day. Chairman Lippert did not want to distract the committee from its work on H. 470 by having to prepare for floor debate on the mediation bill. So, it will make the crossover deadline by being delivered by this Friday. But the bill still faces some hurdles. The Vermont Bankers’ Association has begun an all out effort to defeat the bill. It will probably get enough support to pass the House but its future in the Senate is less than clear to me right now.
On the Senate side, the Judiciary Committee returned to hear more testimony on S. 279the jury bill. Yesterday it heard from representatives of insurance companies while today testimony was scheduled from Paul Harrington, Executive Vice President of the Vermont Medical Society. I heard yesterday that he sent an alert to all Vermont physicians asking them to contact senators to express their opposition to the bill. I’ll do my best to get some long distance updates so I can report on where this now stands. Just as in the House, the Senate faces the same crossover deadline this Friday.
If you read the Vermont section of today’s Burlington Free Press and/or listened to Vermont edition on VPR at noon or 7 PM, you’d have a good update on where judicial restructuring now stands. At yesterday’s briefing of two House committees, Chairman Lippert announced that his committee had finalized plans for 6 full time probate judges and 2 half time judges. The bill that is about to emerge from the committee will look a lot like the position urged by the VBA’s Board of Managers. As soon as I can get the final version, I will get it out to you for your review. What I am missing today and tomorrow in committee is the final decision making on the two remaining issues: how to pay for the additional probate judges and the judicial functions (if any) of side judges.
So here’s the calendar. House Judiciary must finish its work by Friday. The bill will appear on the Notice Calendar on Tuesday, or earlier if the Speaker of the House decides to call a Monday session. But, since the bill involves spending, it must be committed to the House Appropriations Committee. That committee has a different cross over deadline- Friday, March 19th. So, debate can be expected during the wee of March 22nd. Passage by the House will get the bill to the Senate the week of the 29th. Will there be enough time for that body to work the bill? Remember that adjournment is expected on Friday, April 30th. The legislature is funded for a 16 week session, ending on that date. It leaves the Senate Judiciary, Government Operations, and Appropriations Committees about 4 weeks to get through a bill that may be about 200 pages long. The other thing to remember is that Senators serve on more than one committee. Senate committees meet only a half day as opposed to House committees. So there’s a lot to be done in a short time. There will be opposition to parts of the bill no doubt. The committee members have their work cut out for them as they must now educate all House members about exactly what the bill does and, probably more importantly, what it does not do. There’s a lot of misinformation out there in the legislature and, I still find, among members of the Bar. That’s one of the reasons we’re going to be discussing this at the Mid Year Meeting next Friday. Please join us for a briefing on the bill; come to ask questions; and learn how you can help by contacting your House member(s) before the vote in the House. As always, thanks for reading. I’ll try to update you on progress even though I’m out of town.

The Second Half Has Begun

Now that the Town Meeting recess is over, the rush to meet the crossover deadline is on. Three of the bills that I have been following and reporting about are on the agenda. First, the Senate Judiciary Committee has scheduled testimony for this morning on S. 279, the bill that would replace the unanimity requirement in civil juries with an 80% rule. Today the committee will hear from representatives of insurance companies that oppose the move. The bill does not reappear on the committee’s schedule this week so whether it advances to the House by Friday is not clear.
On the House side the House Judiciary Committee hopes to finish its work on two bills: H. 590, the foreclosure mediation bill and, of course, H. 470, judicial restructuring. As of now, I have nothing new to report on either. There is a re-draft of H. 590 for discussion this morning and the committee has set aside time to review and vote on it. Beginning this afternoon and continuing until Friday afternoon, the committee will work on H. 470 with the goal of a writing a bill and having it on the Notice Calendar next Tuesday. I expect a new draft to be distributed this afternoon after the House recesses its floor session for House Judiciary’s joint meeting with the House Government Operations Committee. That session could easily pave the way for both committees to wrap up their work on the bill if there is agreement on the outstanding issues. Without repeating what I reported on February 25th (my last post before the recess), the remaining issues were two: how to pay for the committee’s vision of probate districts and the number of judges and the judicial duties of assistant judges. Again, I have nothing new to report right now but should know more by the end of today. I’ll try to post an update alter today or early tomorrow. Then I’m off to Chicago for the ABA's Bar Leadership Institute for the rest of the week. I’ll do my best to keep you informed along the way. Thanks for reading.