Wednesday, March 30, 2011

The House General Affairs Committee returned to a bill we thought had seen its last days- H.57, the bill that would require energy ratings or energy audits before property could be sold. The results of the rating/audit would be delivered to the buyer before property could be sold and those results could be grounds for the buyer to cancel the contract of sale.
The VBA’s Property Law Section has been clear in its opposition to the bill and its harmful impact on conveyancing. The bankers’ and realtors’ associations oppose it. I don’t think this bill will move this session but it could well arise in January.It’s worth your keeping an eye on it and communicating with any of the members of that committee that you may know. Here is a list of members and contact information:
Head, South Burlington (862-2367)
Moran of Wardsboro (896-9408)
Savage of Swanton (868-3566)
Andrews of Rutland (747-6916)
Bouchard of Colchester (879-2522)
Ram of Burlington (881-4433)
Smith of New Haven (877-2712)
Stevens of Waterbury (244-4164)
The Joint Assembly on Retention is just finishing. Here are the results:
CJ Reiber 156-1
Dooley, J. 128-31
Johnson, J. 146-11
Skoglund, J. 149-7
Burgess, J. 155-1

The Superior Judge votes were:
Bent, J. 149-6
Corsones, J. 155-1
Devine, J. 151-5
DiMauro, J. 151-4
Eaton, J. 154-2
Kupersmith, J. 133-22
Levitt, J. 146-7
Rainville, J. 151-2
Wesley, J. 147-8

As always thanks for reading.

Tuesday, March 29, 2011

Now that the House has advanced the tax bill, the health care reform bill, and the appropriations bill over to the Senate there is plenty of committee time and work awaiting. The breaks in the schedule will be on Wednesday afternoon when the joint session to vote on retention will happen and perhaps all day Thursday when both the capital and transportation bills will hit the House floor.
This morning started in House Commerce where the committee returned to H. 21, the uniform limited cooperative associations act. The entity will be renamed “mutual benefit enterprise” both the distinguish them from coops as we know them and to meet the objections of some food coops. The committee hopes to have the bill out this week and passed over to the Senate. The Senate had its own version of the bill introduced at the beginning of the session (S.7); it is really the exact same language and, in fact, the Senate Finance Committee has heard some testimony on it earlier in the year. So even though the bill did not make the “crossover” date it could still pass and be enacted into law this year.
The House Judiciary Committee now has H. 258, a bill passed out of the Committee on Natural Resources and Energy that has the following statement of purpose:
Statement of purpose: This bill proposes to require the secretary of natural
resources, the land use panel, or the natural resources board to provide at least 20 days during which an aggrieved person may comment on a draft assurance of discontinuance or administrative order. The bill also requires a draft assurance of discontinuance or administrative order to be published for notice on the relevant website of the secretary of natural resources, the land use panel, or the natural resources board. In addition, the bill would prohibit the environmental division from signing an assurance of discontinuance or administrative order until any additional filings or proceedings are complete, including those filings or proceedings subsequent to a timely motion for intervention. The bill would also allow for public notice and comment on certain environmental tickets issued by the secretary of natural resources.
Witnesses lined up for today were:
David Mears, Commissioner, Department of Environmental Conservation, Agency of Natural Resources
Thomas Durkin, Environmental Judge, Vermont Superior Court, Environmental Division
Karen Horn, Director, Vermont League of Cities and Towns
John Hasen, General Counsel, Vermont Natural Resources Board
Gary Kessler, Director, Department of Environmental Conservation
Warren Coleman, General Counsel, MacLean, Meehan and Rice
Louis Porter, Lake Champlain Lakekeeper, Conservation Law Foundation

The Chief Justice and Justice Dooley were finally able to testify before the Senate Appropriations Committee this afternoon on the Court’s FY2012 budget. I reported on their House testimony on February 24th. Today’s testimony was very similar and equally well received. The CJ did state his concern for some backlogs that have developed; he blamed that on the courts’ continued furlough days. He wants to “buy them back” if money could be found in the general fund. His fear is well place- that furloughs become the norm and the court never gets out of this cycle. Justice Dooley responded to a question from the Chair about e-filing and its roll out. He said the court had signed a three year contract with the developers and that contract expires at the end of 2012. So, although that was the target for complete implementation of e-filing, he said it may not be fully implemented until the end of FY2012- June 30, 2012. Finally, Senator Illuzzi reported some constituent complaints about delays in the family division. He offered to work with the court on increasing the budget allocation for retired judge time in order to find the people to move some cases. he invited the court to return with its ideas.
BTW, tomorrow morning the House General Affairs Committee will be returning to H. 57, the energy audit bill. I reported a the Mid Year Meeting that seemed to be dead as it missed the crossover deadline; I’m not sure what is up with it but will report to you as soon as I know. Also, for property law practitioners I’m hearing from legislators whoa re hearing from their constituents about licensed lender law problems. As these stories spread around the statehouse many more people are becoming aware of the restriction on seller financing of residential real estate and how that’s affecting conveyances that most of you have been handling for years. The solution is still to be found but rest assured that the issue becomes more real every day. I’ll keep you posted.
Thanks for reading.

Thursday, March 24, 2011

Today was the first day this week that I felt I had something worth reporting. If you follow what happens under the golden dome you’re aware that the House spent just about all week in floor debate. First it was the tax bill; then the health care reform bill was up next, keeping the House in session until 12:45AM today. third reading of health care will happen this morning followed by the appropriations bill later. The speaker anticipates a 9 or 10PM adjournment tonight. So, house committees really have not met. The Uniform Limited Cooperative Associations Act was up for consideration in House Commerce but that was delayed.
On the Senate side, Rich Cassidy was back on Tuesday to respond to some amendments to the Uniform Collateral Consequences of Conviction Act; then this morning Senator Illuzzi brought the Senate Judiciary Committee a host of amendments so extensive that they include re-titling the bill. This will no doubt cause some delay on the Senate side.
The licensed lender bill, S. 98, will also be delayed because an amendment, also by Senator Illuzzi; that sent the bill back to the Senate Finance Committee. The amendment can be found in today’s Senate Calendar on page 334.
Administrative Judge Amy Davenport and VBA Board member Amber Barber testified in the judiciary committee this morning on H. 88, the UCCJEA; both urged the legislature to act quickly on the bill.
As always thanks for reading.

Monday, March 21, 2011

As you know by now both Judges Kupersmith and Levitt made it through the retention committee with unanimous votes of 8-o. Judge Keller, however, decided to withdraw his request for retention after losing the support of the committee in its 6-2 vote against his retention. The joint assembly vote will be held on Wednesday, March 30th beginning at 1PM.
Although I was attending our Mid Year Meeting last Thursday and Friday and therefore away from Montpelier I can report on what took place on matters of interest to VBA members. First the Senate Judiciary Committee advanced a committee bill on child support that does contain language for study of child support enforcement. It should appear on the Senate Calendar this week.
The Uniform Collateral Consequences of Conviction Act has passed second reading in the Senate and may see final action there tomorrow. Then it’s off to the House.
I know members of our Property Law Section are concerned about restrictions in the licensed lender law against holding mortgages on residential property unless you hold a license. S. 98 addressed some of the problem but it excludes residential property. BISHCA has successfully argued that adverse consequences would result if the Vermont licensed lender changes to be in conflict with the federal SAFE Act. The bill was pulled off the calendar at the end of the week at the request of the Chair of the Senate Finance Committee Ann Cummings. The Committee considered it briefly and reported it back to the full Senate without amendment. It seems that any further changes, at least in the Senate, will not happen.
Also of interest to property lawyers is S. 77 on the Senate Action Calendar. It is a bill that requires testing of water wells after initial construction. So I’m sure the first question readers will ask is what will happen if this requirement is not complied with; here’s the answer (note the delayed effective dates of parts of the bill):
Sec. 3. 27 V.S.A. § 616 is added to read:
(a) Prior to the execution of a purchase and sale agreement for a property
not served by a public community water system, the seller shall provide the
buyer with informational materials developed by the department of health
(1) the potential health effects of untreated well water; and
(2) the buyer’s opportunity under the agreement to test the potable water
(b) Noncompliance with this section shall not affect marketability of title.

The department of health, after consultation with the agency of natural
resources, shall revise and update its education and outreach materials
regarding the potential health effects of contaminants in private sources of
drinking water in order to improve citizen access to such materials and to
increase awareness of the need to conduct testing of private water sources. In
revising and updating its education and outreach materials, the department
shall update the online safe water resource guide by incorporating the most
current information on the health effects of contaminants, treatment of
contaminants, and causes of contamination and by directly linking users to the
department of health contaminant fact sheets.

This act shall take effect upon passage, except that 10 V.S.A. § 1981(a)
(testing of new wells) and 10 V.S.A. § 1981(d) (well test reports) shall take
effect on January 1, 2013.
After having spoken with Judge Tim Tomasi at the Mid Year Meeting last week I was reminded that he and Judges Mello and Gerety are still awaiting confirmation hearings in the Senate. I’m going to ask this week when the Senate Judiciary Committee plans to hold those hearings.
So this is a short update; I’ll add to it as I get caught up on last week’s events. As always thanks for reading.

Wednesday, March 16, 2011

We are still waiting for the Senate to select its members of the Judicial Nominating Board but the Governor has appointed his two choices. They are Kathy Pellett and Joseph Watson. They join house members Tim Jerman, Bill Lippert and Joe Acinapura. You have already chosen Peg Flory, John Kellner and Water Judge as the bar’s representatives.
Last night’s judicial retention hearing was probably the most difficult one I have sat through since 1987. The committee decided to put off the joint assembly vote until Wednesday, March 30th from next Thursday, the 24th. They did so because, although last night was to be the meeting at which votes on retention were to be taken, they did not vote on all the judges. They withheld decision on Judges Keller, Kupersmith, and Levitt; they will reconvene Thursday at 4:30. They did however unanimously approve the retention of everyone else, three with one abstention in each vote. Here are the votes in summary form:
Justices Burgess, Johnson, Reiber, and Skoglund; 8-0
Justice Dooley: 7-0-1
Judges Corsones, Devine, DiMauro, Rainville, Wesley: 8-0
Judges Bent and Eaton: 7-0-1
The committee did not get to discuss Judges Kupersmith or Levitt last night instead spending all its time on Judge Keller. The committee seems badly divided on his retention. His detractors are many, but he also has a number of supporters, many who are members of the bar. There really was no criticism of his judicial knowledge, preparedness, scholarship, etc. All the criticism goes to his demeanor. He is described as rude and as a “bully” in the courtroom. Some of the committee members also complained of his conduct before their committee in each of his two appearances there. One senator said he was troubled that the judge “misrepresented” the Judicial Conduct Board reprimand. For another take on this, check today’s Burlington Free Press as there was a reporter present.
I expect the vote will be taken Thursday. I will be out of the building at our Mid Year Meeting in Burlington. I can report the vote when I learn it but won’t be able to report more fully than that.

Tuesday, March 15, 2011

I haven’t reported to you since the Town Meeting break as I was away last week at the ABA Bar Leadership Institute. So I missed the legislature’s first week back. The "crossover” deadline has passed and today’s calendars from both chambers are full. What that means is that as of last Friday, all bills were required to be out of the primary committee of jurisdiction and appear on the Notice Calendar. The exceptions are the money bills- budget, transportation, capital, and tax bills. With such full calendars it’s likely that each chamber may spend as much or more time on the floor as in committee as they work through their calendars.

We did make some progress on issues we have been following and some we are supporting this year. The adult guardianship bill has passed the House and is in a Senate Committee. Rich Cassidy was successful in moving the Uniform Collateral Consequences of Conviction bill out of Senate Judiciary; it’s on the calendar for action this week. Vermont could be the first state in the country to adopt it! The House has already passed UCCJEA; so we’re three for three on uniform bills.

Property law practitioners will be happy to hear that H. 57 (energy audits) did not make it out of committee while they may be unhappy to hear that the licensed lender issues are still up in the air. The Family Law Section had a discussion last week about a draft bill advocated by the Office of Child Support. Section Chair Penny Benelli will testify tomorrow morning on the comments made by Section members. Judge Robert Bent was in Senate Judiciary this morning to comment on the draft child support bill. As this is or will be a committee bill it does not yet have a bill number; one will only be assigned if the committee advances the bill to the floor. (Last week we circulated the draft to members of the Family Law Section; if you are not Section member and would like to see it contact me and I can email a copy).

Here is what the draft purports to do:

Statement of purpose: This bill proposes to reduce the surcharge on unpaid
child support, and provide a mechanism for the court to discharge all or part of a surcharge upon a finding that the obligated parent lacked the ability to comply with the underlying support obligation, if it serves the interest of justice; allow child support orders to be extended until the child is age 22 if the child is enrolled in college; and establish a new combined process of civil and criminal contempt of a child support order.

Judge Bent’s concern was the combination of civil and criminal contempt; he prefers having the sanction of criminal contempt as a tool and didn’t want to have it become ineffective. I think the committee is heading towards a more comprehensive review of child support enforcement, perhaps after a study group makes recommendations for consideration next January. But there appears to be support for lowering the surcharge (from 12 to 6% not compounded). I’ll update this tomorrow after the morning testimony.

Tonight at 4:30 the Judicial Retention Committee is scheduled to meet and vote on the retention of all 15 candidates. However there is plenty of talk about two of the judges and a possible delay in the vote. I’ll fill you in tomorrow on what happens tonight. The joint assembly vote is set for Thursday, March 24th at 10:30. That may or may not be pushed back too.

Thanks for reading; sorry for the dry period but I’ll be trying to keep you up to date regularly now, well, maybe after this week’s Mid Year Meeting at the Hilton this Thursday and Friday. See you there.