Friday, April 30, 2010

Friday, April 30, 2010- the end is in sight

Well the Senate Judiciary Committee voted out H. 470 by a vote of 5-0. It’s headed for a quick review by Senate Finance because of the increase in some probate fees. That committee has already approved those fees in the miscellaneous tax bill. The Senate will be in session on Monday when the bill will appear on the Notice Calendar. In theory, it should be up for second reading on Tuesday and third reading on Wednesday, after which it will return to the House for concurrence or for a committee of conference. This schedule may change, moving the bill more quickly than this. It tracks the discussions I’ve been relating in my posts this week. There will be some floor amendments offered, some unfavorable to unification and perhaps one with some technical corrections as legislative counsel pours over the bill and checks citations to statutory sections and the repealers.
Certainly the Senate took a different approach than the House but, if you trust Joint Fiscal’s number, they came closer to the target $1 million in savings. The real problem carries forward to FY12. Both bills leave nearly a $300,000 hole to be filled in that year. BTW, this bill should eliminate the need for the three ½ day closings per month in the courts. However, the one day a month furloughs will continue into FY11. I expect the bill will go into conference and am sensing lots of support for the Senate approach. We’ll see how it all works out.
On H. 689 (UCIOA) the House yesterday concurred with the Senate’s roll out of the effective date until January 1, 2012. On H. 590 we’re still waiting for the Senate to appoint its conferees to work out the differences with the House. But I am going ahead with the CLE for June 7 and 8 as if the bill has been signed into law.

Thursday, April 29, 2010

Thursday April 29, 2010-7:20 AM

Late yesterday the senate did amend H. 689, UCIOA. There was a late amendment offered that extended the effective date until January 1, 2012, instead of 2011. I’m not sure why the amendment was offered and adopted; nor am I sure of what the house’s response will be. I’ll update you on this as soon as I know more. (I’m posting this update at 7AM Thursday). Also late yesterday I got a copy of a new draft of H. 470 which the Senate Judiciary Committee should consider at 8:30 this morning. The draft pretty much tracks what I’ve reported in my last two posts about out of committee discussions. The draft contains the kind of cost sharing with the counties to pay for side judges while keeping their jurisdiction as it exists today as I wrote about. It does keep 14 probate judges at new salaries, mostly lower than what they earn today. Also included are some limits to their benefits if they work less than 50%. I’m not sure how they will react to this and I have not seen a fiscal analysis of whether this draft meets or at least approaches the $1 million savings the legislature asked the Commission to find. I’ll post something later after this morning’s committee meeting.
UPDATE at 2:00 PM. The Senate Judiciary Committee did go through the draft this morning as planned and reacted favorably to what they had before them. Everyone with a stake in the outcome had a chance to react to the bill and, for the most part, there was agreement that this version did address the concerns of the Commission on Judicial Operation. That's not to say that the probate judges were not disappointed with the salary scheme but, overall, the bill does keep 14 probate judges and keeps side judges where they are now. Each goup shares in the cost of achieving those goals. A final vote is scheduled for tomorrow assuming legislative counsel gets a clean draft for the committee to vote on.

Wednesday, April 28, 2010

Wednesday April 28, 2010

A couple of bills are moving. The technical corrections bill to the Vermont Trust Code (S. 173) is no won its way to the governor for signature. The Uniform Common Interest Ownership Act (H. 689) made it through second reading in the senate yesterday with no questions or objections. It should sail through today and then be signed into law. The House Commerce Committee voted out the benefit corporation bill (S. 263) by a vote of 8-3. The three dissenters were concerned about provisions in the bill that allow conversion to a benefit corporation. There is unanimous agreement on the portions that govern setting up a new benefit corporation. I expect this to be debated on the house floor tomorrow and Friday. After passage, and since it is a senate bill, it will return to the senate for its concurrence or go to a committee of conference.
There is no progress to report on restructuring. I hope that the senate committee completes work on it tomorrow or at the latest Friday. I did see a printout of probate judge proposed salaries after restructuring but while keeping 14 probate judges. I expect most to be unhappy with the proposal I saw as it did reduce most salaries. That’s what’s really left to work out in my opinion. I think the side judge and the small claims fees issues can be resolved without too much trouble. But we’ll see.
Today the House Judiciary Committee spent a good hour reviewing the senate’s version of H. 590, foreclosure mediation. The big change from the house passed version is the elimination of pre filing mediation. The committee seems to be committed to that approach- their approach. But all the stakeholders (VLA; AG; Vermont Bankers; Vermont Mortgage Bankers; BISHCA; and the Association of Vermont Credit Unions) support the senate passed version, thereby putting the house committee and its preferences squarely in play. Although the committee did not finish its review I expect they will not concur and request a committee of conference, thereby gaining some time to absorb the changes and think them through.
I really have nothing else to report right now. We’re entering the stage of conference committee meetings that are hit and miss within whatever time is available. It’s hard to predict when or even if something will take place. There is usually no schedule, at least not a public or published schedule. I’ll post something after the Senate Judiciary Committee makes some decisions on H. 470. Thanks for reading.
UPDATE: The House is now in session and they have just suspended the rules to take up H. 590 for the purposes of NOT concurring with the senate version. The Speaker appointed Reps. Koch, Jewett and Marek to the Committee of Conference.

Monday, April 26, 2010

Monday April 26, 2010

After a week away I returned Friday to find the Senate on the floor debating tax policy; so the schedule for the Senate Judiciary Committee was cancelled once again. The Senate will be in session this afternoon with the budget up for action. There is no committee work scheduled until Thursday morning when the Judiciary Committee hopes to complete work on H. 470. Obviously, much is happening outside of formal committee meetings. There is no way the committee can resolve the issues without that happening. Even though I was in DC, here is what was related to me from last week’s one committee hearing. I’m told that the counties will pay the compensation for side judges to sit with a presiding judge in the civil and family divisions. Also, I’m told they have agreed to a two hour minimum in place of the four hour minimum that now exists. What that means is that when side judge sits, no matter for what length of time, they earn four hour minimum pay (at about $145/day). That will now be replaced with a two hour minimum. The other problem area, as I’ve written about before, is the small claims fees presently retained by the counties. Last year’s total was about $722,000. The committee chair, Dick Sears, discovered that Addison and Caledonia Counties collect $45,000 and $30,000 respectively even though the county courts are in state owned building for which the judiciary pays Buildings and general Services a fee for space. The senate version of H. 470 will redirect that money to the state’s general fund. So the balance, about $650,000, should go to the state as per the house version of the bill. This is part of the calculation that makes the integration of county paid staff into state paid staff work. But the senate committee sees that money continuing to be paid to the counties as fee for space for the state courts (divisions) to be housed in county owned courthouses. I understand there is agreement to split those fees 50-50, state and county. According to Court Administrator Bob Greemore, the judiciary can make this work in FY11. The problem is pushed out a year into FY12 and beyond. I don’t have any update on the probate court piece of this unfortunately. The committee remains dedicated to retaining 14 probate judges. In understand that the association of probate judges’ salary proposal didn’t fly with the committee; so I guess that is still very much up in the air. So procedurally where are we? Assuming the bill gets done on Thursday, it then needs to get on the calendar; pass the senate; return to the house where they will refuse to concur; and both chambers will need to appoint a committee of conference to work out disagreements and write the final legislation. And there are only two weeks left! I’ll post something on Thursday afternoon.
H. 590, foreclosure mediation, has passed second reading in the senate on Friday without objection and should get final approval this afternoon. It will also need a conference committee to work out differences between the two versions. I expect, S. 263, the benefit corporation bill to come out of House Commerce tomorrow morning. S. 173, the technical correction to last year’s Vermont Trust Code is on its way to passage with no issues.
Stayed tuned for the final updates of the session (I hope!). Thanks for reading.

Monday, April 19, 2010

Monday, April 19, 2010

Well, last Friday turned out differently than planned; what else is new. The Senate Judiciary Committee got off to a late start due to an extended session in floor debate. That’s going to continue to happen as the session winds down. The “big” bills, those that must pass before adjournment, are all in the Senate- the appropriations bill; the capital bill; the transportation bill; challenges for change; and, judicial restructuring. True the last isn’t a “must pass” bill but I’m adding it here as I think it has gotten so much attention that I don’t think the Senate can leave it on the table. So, because the committee got that late start they were not able to get to foreclosure mediation (H.590). They have set aside Tuesday and Wednesday mornings to complete work on the bill. That leaves Thursday and Friday to finish H.470, restructuring. I’m pretty sure this will be the last week of morning committees so this is it; now or never. In fact, Committee Chair Dick Sears, also a member of the Appropriations Committee, will not be able to attend the Tuesday and Wednesday meetings as appropriations will be meeting all day.
So what did they accomplish during the time they had on Friday to work on H. 470? The answer is not much. Caledonia County Probate Judge Toby Balivet did testify but spoke about the weighted caseload study and its effect on judge salaries. It wasn’t what the Chair or the committee was expecting. They were hoping for a concession on the part of the probate judges on a salary structure that would tie compensation to caseload. They didn’t get that. This is all part of what the Chair calls his “win-win” strategy. He wants to retain 14 probate judges; he wants a more realistic salary structure; and he wants to see savings in the judicial budget. He did concede that 14 may not be possible; he is open to 12.
There are other things in the works, at least at the talking stage. There may be a deal to bill counties for side judges sitting with a presiding judge in the civil and family divisions. (I was about to write “superior and family courts” but I guess it’s time to think of those courts as divisions. I hope I’m not getting too far ahead here!). The Chair did some research and saw that two counties- Addison and Caledonia house their superior courts in state owned buildings. So, he wants to recover the small claims fees paid to those counties as “fee for space”. It could be said that those counties have been double dipping. The small claims fees are key to resolving this bill. Last year they totaled $722,000. The counties want to continue to receive that money (less about $75,000 paid to those counties mentioned above). But what makes the unification of county employees into the state system work is redirecting that money to the state to offset the increased payroll costs. That, taken along with probably 20 to 30 positions that the court administrator will eliminate, are the sine qua non of the H. 470 and the Commission on Judicial Operation. Don’t read that to say that 20 to 30 people will be fired. There are lots of vacancies in the system now, as I’m sure those of you in court have experienced. Eliminating those positions, combining others, and incentivizing early retirements can reach the goals the court administrator has set.
The probate judges’ association mentioned the possibility of raising adoption fees to contribute in a small way to the savings needed. The fee is currently $75 and the proposal is to raise it to $125. That didn’t seem to garner any support in committee. The Senate as a whole has advanced the fee bill (H.759) which contains new and revised probate fees; there are 5. Guardianships for minors will increase from $35 to $85; for adults from $50 to $100. Name change petitions will go from $75 to $125. And two new fees will be added: a petition for a partial decree will cost $100 while a petition for a license to sell real estate will cost $50. Finally, the committee will add S. 279, the non unanimous jury verdict bill as it passed the Senate, as an amendment to H. 470. The house has not taken up the bill so the stage is being set for the conference committee showdown.
Because the House spent most of the day on the floor debating challenges for change for the second day, the Commerce Committee hearing scheduled for 1 PM on S. 263, the Vermont Benefit Corporations Act, did not happen. But the Senate Finance Committee did complete work on H. 689, UCIOA. It appears on today’s Senate Notice Calendar. It was not amended by the committee so it should go to the governor for signing upon Senate passage.
So, as I mentioned above, the focus remains on the Senate Judiciary Committee on two bills: H. 590 and H. 470. Unfortunately I will be out of state until Friday and will miss discussion until then. I will stay in touch with what is happening and may be able to post a quick update if needed. As always thanks for reading.

Thursday, April 15, 2010

Thursday April 15, 2010

I’d like to report briefly on a couple of things going on this week in addition to restructuring. As you are aware from news reports, the House will take up the Challenges for Change bill later today. It’s filled with controversy and will no doubt dominate both this afternoon and tomorrow on the floor. Then it goes to the Senate which will have to find an additional $11 million in savings to bring the total up to the $31 million promised. All that is still pending as of today cannot get done by Friday, April 30th. I heard a rumor that the President Pro tem has already authorized an additional week, bringing the session to a close on Friday, May 7th. That’s not confirmed but it seems likely, given that Senate morning committees are planning to meet next week. if that does not happen, more that just restructuring will die.
There are four things going on this week that I have been following. H. 590, foreclosure mediation, is set to be done tomorrow morning. There was a new draft presented to the Senate Judiciary Committee Tuesday and that draft still has opposition and raised some new issues. Seven witnesses testified on that draft: Tom Candon, Deputy Commissioner of banking at BISHCA; Chris D’Elia, President of the Vermont Bankers Association; Warren Coleman, Vermont Mortgage Bankers Association; Joe Bergeron, President of the Vermont Credit Unions Association; John Hollar, American Financial Services Association; Elliott Burg of the AG’s office; and Chuck Storrow, representing VATIC, who offered an amendment (identical language from H. 476, introduced but not acted upon) supported by the Property Law Section and Vermont title companies. A lot remains to be done to bring all sides together and some closure to the bill. The committee chair gave the parties until tomorrow at 11 to bring the committee something they could vote on. Whatever the final product, the bill will be headed for a committee of conference.
The Senate Finance Committee reviewed H. 689, UCIOA, and worked with their legislative counsel to go section by section through the bill. I see this one moving fairly quickly as no one has stepped up to oppose any of it. In fact, the Vermont Association of Realtors weighed in saying it saw no issues with the bill. They added, of course, the proviso, that whenever a bill deals with real property there may be unexpected consequences! The committee will return to finish its work late Friday and I hope to see this on the Action Calendar next week.
This morning the House Commerce Committee began work on S. 263 relating to the Vermont Benefit Corporations Act. Unfortunately I was called out of committee to work on something else and was only able to hear the beginning of legislative counsel’s explanation of the bill. The Chair had asked committee members to hold off on asking questions until that was completed; so I don’t have any insight into how the committee feels about the bill. VBA Business Association Law Section Chair Tom Moody was able to testify today. Jerry Greenfield of Ben & Jerry’s also testified. The committee may return to this later tomorrow and I’ll try to get more information to you after that.
Those of you in the VBA’s Real Property Law Section may be aware of the proposal from the Tax Department in H. 783 for electronic filing of property transfer tax returns. The Tax Department is continuing to negotiate items of the bill with members of the Section and I believe there is either a conference call or in person meeting scheduled for some time tomorrow. As soon as I see the language of the final version I will point you to it.
So that brings me a report on judicial restructuring. Keep in mind that this is such a moving target what I write here will no doubt have changed by the time you read it. Yesterday the Senate Judiciary Committee continued to hear witnesses, focusing again on side judges and probate judges.VLS Professor Cheryl Hanna told the committee that the House version of the bill which gave side judges the traffic docket would most likely pass a constitutional challenge. Karen Horn of the Vermont League of Cities and Towns wants to restrict the side judges’ ability to levy a county tax greater than one cent on the grand list. I’m expecting an amendment similar to the language in H. 641, a bill introduced but never acted upon that would set up a county committee to set the tax rate. Windham Probate Judge Robert Pu testified about his experiences on the bench and related stories of ‘real people” who use and need local access to probate courts. He spoke about the ‘rift” between the supreme court and the probate judges that has developed from this process. That caught the attention of the Chair and he wants to hear more about it. His testimony ended with a proposal to raise certain probate court filing fees in order to raise some revenue to support the salaries of the probate judges. Those figures were delivered later in the day to the Senate Finance Committee and were incorporated in H. 759, a bill relating to executive branch fees. (Yes I know we’re talking about the judicial branch here). The final witness was Commission on Judicial Operation member Steve Dale who is also the Commissioner of the Department for Children and Families. He expressed his concern for the loss of court time due to furloughs and closings. He also called the present way of doing business inefficient and asked the committee to give the supreme court control of the scarce resources it has. The committee will be hearing from Caledonia Probate Judge Toby Balivet tomorrow morning; I expect that to be about probate judge salaries. The Chair is looking for some concessions and compromise. I think that’s going to be hard to find. I’ll try to update you tomorrow after lunch. Thanks for reading.

Monday, April 12, 2010

Monday April 12, 2010

My last report to you on Thursday, April 1st, ended with my saying that the Senate Judiciary Committee was going to begin work on H. 590, the foreclosure mediation bill, the next day. Well, that never happened due to extended floor debate. So I did not report to you last Tuesday as there was no schedule that morning on the issues we are following. That evening, however, the Senate Finance Committee spent about an hour hearing from Carl Lisman on the amendments to the Uniform Common Interest Ownership Act (UCIOA). H. 689 is back on their calendar for this Wednesday afternoon when the committee will hear from a representative of the Vermont Association of Realtors, of which the Chair, Senator Ann Cummings of Washington County, is a member. Barring anything unforeseen, I expect the bill to be approved, perhaps as early as this week. The effective date of this is delayed until January 1, 2011 to give all parties (i.e. the VBA) sufficient time to train practitioners on the changes. Stayed tuned for announcements of CLEs etc. on UCIOA.
There was no progress on either S. 173, the technical amendments to the Vermont Trust Code or S. 279, the non unanimous civil jury bill. The House Judiciary Committee has both bills but it spent its week on Challenges for Change and corrections policy. By the way, H. 461, the small estates bill that added surviving parent or parents, to the definition, has now passed both chambers and has gone to the governor for action. If signed it will be effective on July 1. I’ll keep you posted.
All of my time last week was spent in the Senate Judiciary Committee beginning Wednesday morning; the topic was H. 470, judicial restructuring. Before I give you a detailed description of what happened, allow me to jump ahead to Friday, when the committee spent time (finally) on H. 590. Although its time was cut short, they did hear from three four witnesses. The first was VLA Attorney Grace Pazdan who spoke of the foreclosure crisis from her experiences. The second was a homeowner who described in disturbing detail her experiences with Countrywide and her attempts at resolving a delinquency and fending off a foreclosure. The committee was visibly moved by the detail of her account. Elliott Burg of the AG’s office told the committee he wants to offer some amendments to the House bill. They also heard from Evan Meenan of Paul Frank and Collins, representing “some Vermont banks”. Because time was limited, they will return to the bill tomorrow to hear from the other witnesses who were sent away on Friday. Mark up of the bill is tentatively set for Thursday morning. “mark up” is a term used to mean that the committee will work among itself to discuss changes, if any, and to direct legislative counsel to draft those changes for discussion in advance of a final vote. They’ve set aside time to “mark up” H. 470 also on Thursday, even though they seem pretty far from a final result of that.
Before I move into discussing H. 470, I wanted to report also that the Committee Chair, Senator Dick Sears, said he’s asking the President Pro Tem for two weeks to wrap up both bills. He reported this on Friday, so he was obviously asking for committee time until Friday, April 23rd. It was thought that, in order to make an April 30th adjournment date, the committee was going to have to wrap up its work by this Friday, the 16th. It now seems as though adjournment may be pushed back a week. He also was pretty clear that if he didn’t get those two weeks, both H. 470 and H. 590 “would die in committee”.
Judicial restructuring; where are we now? Wednesday, Thursday and part of Friday mornings were spent in committee on H. 470. There was also a public hearing Wednesday evening at which 30 witnesses spoke to the committee. I had some “out of committee” meetings and conversations that took a good portion of Thursday afternoon. Here’s how it all went down. The week began with two GALs testifying about the cuts to family court and their impact on TPRs and CHINS cases. They were supported by VLS professor Alex Banks who represents children and domestic violence victims. The Chair said he is looking for alternatives to furlough days and the half day closings. Paul Hanlon told the committee of his fear that attempts to fix the court system may “break the probate court”. Two issues have arisen around the probate court proposals. One is eliminating the de novo appeal to superior court (or the new civil division). The committee seems to oppose that. The other is the requirement that probate judges be lawyers. The Chair vehemently opposes that; the Vice Chair strongly supports it. Tuesday morning’s testimony presented the committee with something they did not want: the tension between family and district court funding and probate court and assistant judge funding. No one wants it to be said that way but that’s the way it’s shaping up. the Washington Superior Court Clerk told the committee of low morale among her staff and saw the bill as a way to “get rid of county government”. The Chair is concerned about “fee for space”, i.e. the fee paid to counties for the state’s use of court facilities. Although there is a 1987 statute that gives the counties 75% of the notary fee as “fee for space” some counties are now asking for the small claims filing fees to remain in their coffers. Remember that approximately $722,000 in fees are redirected to the state under H. 470 to help offset the cost of integrating county employees into the state system. Well, the Chair did some research and was quite surprised to learn that in Addison and Caledonia Counties, two places where the superior court is in a state building, the counties still get to keep the small claims fees! More to come on this, I’m sure.
Other issues surfaced on Tuesday also. There was a question of whether a superior court clerk could also serve as the county clerk (as they do now). The committee wants testimony on the judicial function of side judges. They are scheduled to hear from VLS professor Cheryl Hanna this week. (Professor Peter Teachout and Judge Teachout are on sabbatical). Senator Illuzzi proposed an amendment to retroactively amend the Cannons of Judicial Conduct to permit a side judge from campaigning for his position at the same time he campaigns for probate judge. This is meant to address one case. Since this is not a new question (it arose last year in H. 11, the estates bill), the VBA opposed it again. There is no decision on it yet but I expect one this week. The committee still needs to deal with the magistrate retention issue as well as unification of overall staff. Senator Nitka opposed the removal of the language that dedicates staff to the E court, saying that those law clerks develop an expertise that should remain with the court (just as it does with the judges).
That full morning was followed by a 2 and 3/4 hour public hearing that filled Room 11. I broke down the testimony into four groups: those supporting H.470; those supporting side judges; those supporting 14 probate courts; and those supporting local access to courts. Without spending too much time on this here are some highlights from the hearing (repeated without attribution as I can’t be 100% certain of the quotes):
H. 470 is an assault on the citizen judiciary;
This is a takeover of county government;
Table the bill;
Probate courts are the gem of the judicial system;
Family and district courts are the black holes for resources:
There has been an intimidation factor from the supreme court;
The CJ has no understanding of the function of superior courts;
Side judges offer continuity in family court;
Side judges are the subject of ridicule around the country;
Our structure is fragmented and inefficient;
Put the bill to a public referendum;
Side judges make no difference in the outcome of cases.
On Thursday, the committee heard from some probate court practitioners: Bob Pratt and Bud Otterman. Both, as expected, were supportive of the probate court. Bob suggested looking at fees to increase revenue. During his telephone testimony the Chair raised the issue of setting probate judge compensation on the basis of the volume of cases handled, using Chittenden Probate Court as 100%. The afternoon meeting focused again on this as well as part of Friday morning’s session. There are alternate approaches on the table but there is no resolution or agreement. One model would find judges compensated at a much lower level that today. Query whether this would deter them or others from seeking the position this fall? The committee then turned its focus on the unification of staff and whether county employees would lose accumulated benefits if they became state employees. Jes Krause of VSEA testified as did Court Administrator Bob Greemore.
The Chair is dedicated to a “win win” outcome and will pursue that as his goal. The only issue is time: will they get the time to do this right? Testimony is scheduled for Wednesday morning. I’ll update you after that. Thanks for reading.

Thursday, April 1, 2010

Thursday, April 1, 2010 (this is not April fools!)

So it’s been a week since I reported on what’s happening on judicial reorganization or anything else in Montpelier. The Senate Judiciary Committee spent two days this week on H. 470. Last week I told you that they reinstated the judicial functions of side judges. Today the Chair called upon the side judge association to come to the table with a proposal to share in the cost of their sitting as judges. He also asked Caledonia Probate Judge Toby Balivet, who testified this morning, what his highest priority is. He said keeping 14 probate judges, one in each county. Again, the Chair invited him back with a proposal to rework judge salaries to share in the savings the legislature needs to find. The question Senator Sears asked is how can we justify a salary of, taking Franklin County as an example, 65% of the Chittenden Probate Judge (the only full time judge), when the caseload is only 39%? Clearly the committee is moving toward 14 judges but must find the savings to make that work. The alternative, unfortunately, is closing state courts in some counties- district and family courts.
The list of witnesses these last two days was long. Yesterday the committee began with Administrative Judge Amy Davenport; she walked them through a chart of increased caseload backlogs which she said fall disproportionately on district and family courts. Senator Sears reacted at one point by saying that the House had three months to work on this and the Senate only has three weeks. He also objected to “elected judges taking the majority of the hit” in restructuring.
Steve Schindler testified in opposition to the House language that makes the probate court one of record. His research showed that only 18 cases were actually appealed to superior court in 2008, less that one percent of all cases in probate court. He objects to “formalizing” the otherwise informal process for 99% of the other cases. This is shaping up to be a big issue for the committee along with the requirement that all probate judges be law trained.
Chris Chapman, a trust officer with the Trust Company of Vermont, urged the committee to set aside the commission’s report and return to a study of the probate court before acting. He specifically objected to the reduction in the number of probate judges and suggested the committee look to increasing filing fees as a way to add additional revenue. When asked by the Chair about the consolidation of Windham and Bennington Counties into one probate district (sharing one judge), he stated his opposition. That gave the Chair an opening to say that “the House put that in there to tweak me”.
Vermont Legal Aid Executive Director Eric Avildsen spoke to the committee in support of the court’s administrative control over a unified system. He also supported elimination of the judicial functions of side judges, calling their decisions “inconsistent”. He told the committee that the House had improved the bill from the bill as introduced. In short, VLA supports the division structure; it supports requiring probate judges’ being lawyers; and he didn’t oppose eliminating de novo appeals from probate courts.
Franklin Superior Court Clerk Jim Pelkey argued that the judiciary is already unified as he takes direction from the Court Administrator’s office. He suggested that a way to save money would be to transfer the Clerks’ salaries to the county budgets. He thought that properly trained side judges could hear small claims matters. He did favor eliminating de novo appeals to superior court. He also offered that the per diem expense for side judges to sit aside a presiding judge should be the county’s expense.
Bennington attorney John Williams testified by phone arguing for the legislature to allow a period of time for the four southern counties to acclimate the consolidation of eight probate judges into four. He opposed further consolidation.
Franklin Probate Judge Larry Bruce criticized the Commission on Judicial Operation’s lack of information on the probate court system. He talked about the de novo appeal numbers; he mentioned that 85% of the probate caseload is pro se. he reminded the committee of the additional caseload from the new Vermont Trust Code’s transfer of jurisdiction of inter-vivos trusts. He had concerns about losing the ability to hire a clerk or register, reading H. 470 as giving that authority to the court administrator. There was one interesting exchange about the issue of probate judges being lawyers. Larry said the statue allows him to designate his register as an acting judge in his absence. Well that sparked the Chair’s attention, causing him to question whether that could continue if the legislature required probate judges to be lawyers.
Today Judge Balivet added his support to the concept of a unified court although he did question whether cross training of staff is feasible. He had no strong feelings wither way on the issue of de novo appeals. I’ve addressed his other comments above.
Two Washington County probate practitioners testified- Dave Otterman and Mike Caccavo. Both argued to keep the probate system as it is with a judge in every county. Dave, in response to a question about probate judges being lawyers, said he saw no reason to not make that a requirement. He was undecided on whether to eliminate the de novo appeal while Mike supported it.
Bennington Assistant Judge Jim Colvin challenged the court administrator’s estimate of small claims filing fees being $700,000. He thinks that money, whether the amount, should go to the counties as “fee for space” or use of the county courthouse property. He also opposed the unification of staff in H. 470.
Finally the Chief Justice read a prepared statement into the record before taking some questions. His statement can be read here:
Remember that there will be a public hearing on this next Wednesday from 4:30 to 7:00PM in room 11 of the statehouse; anyone can testify.
So you’ll know that this isn’t the only thing happening in Montpelier, the legislature is advancing a substantial amendment to the Uniform Common Interest Ownership Act (H. 689). The Senate Judiciary Committee will set aside H. 470 tomorrow to begin work on H. 590, the foreclosure mediation bill. The VBA is already organizing a group to structure the training required for mediators in these cases. I’ll update you as we move forward. As always, thanks for reading.