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.