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:
http://www.vtbar.org/Upload%20Files/WebPages/Testimony_to_Senate_Judiciary_April_2%20_2_5.pdf
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.