Friday, January 28, 2011

A lot happened today in the statehouse and I’ll try to report it fully. But before I do that I want to report that the results of your voting for lawyer-members of the Judicial Nominating Board have been released. John Kellner and Walter Judge have been re-elected while Peg Flory is the new member from the southern district. Peg has previously served on the JNB as a House member so the bar will be bringing some well needed experience to what may prove a board with many new legislative (as well as gubernatorial appointments naturally) members. No other appointments have yet been made. I believe that will happen on Tuesday.


So, back to today; we’ve finally been successful in getting a hearing on the UCCJEA (H.88) in House Judiciary. The committee will do an overview of the bill next Thursday morning.

S. 1 passed both the House and Senate and is on its way to the governor for signing next week. So, the de novo appeal from probate court (soon to be probate division) to civil division (formerly superior court) will remain in place and not be repealed on February 1st.

For those of you with a civil practice focusing on medical malpractice, be advised that the House Health Care Committee will begin discussion of tort reform (yes, here we go again) next Wednesday afternoon. The VBA, with members on both sides of that courtroom, has sat this out in the past but I will attend and report to you what happens. If anyone reading this would like to weigh in on this, let me know and I’ll try to get you on a witness list.

Senator Illuzzi, Chair of the Senate Committee on Economic Development, Housing, and General Affairs, is working on a draft committee bill dealing with the licensed lender law and the problems with owner financed sales. There is no bill or language yet but we’ve been advised to be ready for a hearing on Tuesday, February 15th. I’ll post more information when I have it and will keep the Property Law Section list serve up to date. Again, witnesses are encouraged to share their experiences with the committee. If you’d like to be heard, let me know.

I spent a good portion of this morning in the Senate Judiciary Committee where two experienced lawyers addressed the committee on different issues. First, David Silver came up from Bennington to testify on S. 16, a bill related to confidentiality of cases accepted by the court diversion project. There was an interesting and engaging discussion among committee members but unfortunately not enough time to really make any headway. I’m sure the committee will return to it when they have the time.

Then Rich Cassidy, one of our uniform laws commissioners, presented S. 38, the uniform collateral consequences of conviction act. This bill also perked up the committee and a good conversation ensued; the committee will get back to it during the week of February 8th. Here’s a brief summary from the Commission’s website:



In 1974, 1.8 million people, or 1.3% or the adult population, had been imprisoned at some point of their life. By 2001 that number rose to number 5.6 million people, or 2.7% of the adult population. The Department of Justice estimates that if the 2001 imprisonment rate remains unchanged, 6.6% of Americans born in 2001 will serve prison time during their lives. In addition to those who have served prison time, an even larger proportion of the population has been convicted of a criminal offense without going to prison. According to a 2003 report of the Department of Justice, nearly 25% of the entire population (some 71 million people) had a criminal record.

Concern about the impact of collateral consequences has grown in recent years as the numbers and complexity of these consequences have mushroomed and the U.S. prison population has grown. Collateral consequences are the legal disabilities that attach as an operation of law when an individual is convicted of a crime but are not part of the sentence for the crime. Examples of collateral consequences include the denial of government issued licenses or permits, ineligibility for public services and public programs, and the elimination or impairment of civil rights. There is a real concern on a societal level that collateral consequences may impose such harsh burdens on convicted persons that they will be unable to reintegrate into society.

The Uniform Collateral Consequences of Conviction Act, promulgated by the Uniform Law Commission in 2009, is an effort to improve public and individual understanding of the nature of this problem and to provide modest means by which people who suffer from these disabilities may, in appropriate circumstances, gain partial relief from those disabilities.

The Act facilitates notification of collateral consequences before, during, and after sentencing. Under the provisions of the Act, states are to create a collection of all collateral consequences, with citations and descriptions of the relevant statutes. At or before arraignment individuals will be advised of the particular collateral consequences associated with the offense for which they are charged. Notice is also to be given at the time of sentencing, and if an individual is sentenced to prison, at the time of release. Formal advisement promotes fairness and compliance with the law

The Act provides mechanisms for relieving collateral sanctions imposed by law. The Act creates an Order of Limited Relief, designed to relieve an individual from one or more collateral consequence based on a showing of fitness for reentry. The Order does not automatically remove the consequence, but does remove the automatic disqualification imposed by law. A state agency retains the ability to impose the consequence on a case by case basis and if public safety would be compromised. The Act also creates a Certificate of Restoration of Rights. The Certificate is granted to individuals who demonstrate a substantial period of law-abiding behavior consistent with successful reentry and desistance from crime. Issuance of a Certificate facilitates reintegration of those individuals who have demonstrated an ability to live a lawful life.