Wednesday, May 2, 2012

Mid Day Update May 2, 2012

House and Senate conferees agreed this morning on the final version of S. 116, an act relating to probate procedures. It should be posted in the House Calendar of tomorrow.

Wednesday May 2, 2012

For those of you following H. 600, the foreclosure mediation bill, yesterday the Senate amended the bill by adding the following:

By striking out the First proposal of amendment in its entirety.
Sec. 4a. 12 V.S.A.§ 4633(e) is amended to read:

(e)(1) Except as provided in subdivision (2) of this subsection, the mediator may permit a party identified in subdivision (d)(1) of this section to participate in mediation by telephone or teleconferencing.
(2) The following parties shall be physically present at the mediation:
(A) the mortgagor, or a person with decision-making authority for the mortgagor; and
(B) the mortgagee, or a person with decision-making authority for the mortgagee.

The bill then passed the Senate and was messaged back to the House. The House Judiciary Committee wasted no time in rejecting these changes and on today's house calendar you'll find the following:

Rep. Koch of Barre Town moves that the House concur in the Senate proposal of amendment with the following additional proposals of amendment
First: In Sec. 2, 12 V.S.A. § 4631, in subsection (c), by striking the words “a randomized” and inserting in lieu thereof the words “an objective and neutral”
Second: By striking Sec. 4a in its entirety.

So it continues. After your emails to me and to the list serve of mediators yesterday I bundled them and delivered them (with names redacted) to certain members of both chambers. I'm sure that those emails, along with any of the calls, emails or letters you sent directly, were the reason for the no votes on the Senate floor and for the swift action in the house committee. Stay tuned.
Thanks for reading. 

Monday, April 30, 2012

Monday April 30, 2012

The only update I have from Saturday's session is that the Senate concurred in the House proposals of amendment to H. 403, the foreclosure re-write bill. It's off to the governor for signature.
So what's left. H. 600, the update to the foreclosure mediation process remains on the Senate calendar. Let's hope for action later today when the Senate convenes at 2 PM. They've made some changes so the bill will have to return to the House for final approval. S. 116 remains in a committee of conference. Conference committees on the budget and the pay act will be meeting starting today to resolve those issues. If all goes as planned we should see the state's last furlough day in June!
More as things happen. Thanks for reading.

Friday, April 27, 2012

Friday April 27, 2012

The Senate concurred in the House proposals of amendment to S. 203, the child support enforcement bill. The fianl version is, at this time, only available in the Senate Journal of Thursday on pages 16-26.

Wednesday, April 25, 2012

Wednesday April 25, 2012

Here’s a quick update for bills that we’ve been following this session.

These have been signed into law and are already in effect:

H. 21, mutual benefit enterprises (formerly limited cooperative associations).

H. 565, licensed lender.

S. 179, amending perpetual conservation easements. This bill passed the Senate in a stripped down version from its introduction. Property Law Section members should pay attention to what it contains and what a study committee is being charged with doing.

The following passed the Senate on Tuesday. Given that the Senate made no changes to the House passed version, the bills will now go to the governor:

H. 272, private roads

H. 327, uniform principal and income act.

The following are still on the Senate Action Calendar:

S. 203, child support. I expect the Senate will concur in the House proposals of amendment.

H. 403, foreclosure rewrite. Again I expect the Senate will accept a minor amendment added in the House.

H. 600, foreclosure mediation. The Senate Judiciary Committee has made some changes that need to pass the Senate and then the bill must return to the House for action.

S. 116, probate proceedings and power of attorney. This bill is in a committee of conference to work out differences between the two chambers.

A couple of bills may be dead for this year. For example, S. 28, the permit reform measure that would create an “on the record” appeal for Act 250 proceedings in district environmental commissions 1, 4, and 5 may not get out of the House Natural Resources and Energy Committee. Also, H, 763, the tax department collection of the education tax is bottled up in House Appropriations. The provision that would allow attorneys and others access to net tax figures has been added to H. 782, the miscellaneous tax bill. That should be out of the Senate Finance Committee today. Finally, S. 143, the building energy disclosure bill is being held in the Senate Rules Committee.

The FY 13 budget bill and the pay act are up for action in the Senate probably later today. Together those bills should end furlough days in our courts and restore pay cuts that most state employees took over three years ago. No doubt both will end up in committees of conference.

Of course this is only a snapshot in time; anything can happen in the final days of any session. If you are interested in something I didn’t mention, let me know and I’ll try to update it for you. as always, thanks for reading.

Tuesday, April 10, 2012

Tuesday April 10, 2012

So here’s a quick update since I last wrote. As you may know all bills must be read three times. The first reading is the day of introduction; second reading is the report of the committee of jurisdiction. Third reading happens the next legislative day. Today a number of bills passed second reading. In the House S. 116, the probate proceedings bill advanced. In the Senate, H. 403, foreclosure and H. 565, licensed lender advanced to third reading tomorrow.

I realized this morning that H. 327, the uniform principal and income act, was nowhere to be found. It was approved by the senate judiciary committee last week but didn’t appear on the calendar. Well I reminded the committee about it and I hope it shows up on the Notice calendar tomorrow.

Because of extended action on the floor of both the House and Senate neither judiciary committee had time to get to H. 600, foreclosure mediation (in the Senate) or S. 203, child support (in the House). We’re back tomorrow hoping for movement on both bills then.

H. 763, the tax department collection of the education tax bill seems stalled in house appropriations while S. 143, the energy disclosure bill is stalled in senate appropriations.

The permit reform bill, S. 28, ran into some problems this morning on the senate floor and, after a recess, consideration was delayed “to the next legislative day”. Senator Mark MacDonald raised his objections to the bill as the full senate sat in silence listening. That caused a delay in consideration amid many still unanswered questions about the scope of the pilot project and its effect on citizen participation. Quite a day in the senate. Thanks for reading. More tomorrow.

Thursday, March 29, 2012

Thursday March 29, 2012

As I wrote on Tuesday the pace has been as crazy as expected. You can feel adjournment in the air; in fact, you’d think it was coming this weekend and not at the end of April. Here’s a quick update; refer back to Tuesday’s post for more information. Magistrate Peterson finally met with the Senate Judiciary Committee which unanimously endorsed his confirmation and the full Senate followed suit yesterday. This afternoon the retention vote was held and all judicial officers were retained.

House Judiciary began its review of S. 203 and S. 116. Family Law Section Chair Penny Benelli testified on S. 203, while Probate Section Co-Chair Mark Langan was the witness on S. 116. In addition we offered an amendment to the power of attorney section of 116 adding language to deal with In re Lovell. The committee seems prepared to adopt it.

Yesterday the Senate Judiciary Committee spent the morning on four bills we worked on in the House: H. 327, uniform principal and income; H. 272, private roads; H. 403, foreclosure; and H. 600, the foreclosure mediation bill.

The licensed lender bill is scheduled for a hearing later today, having been moved up from Friday afternoon. No action ye on S. 143, energy disclosure or the bill on tax department collection of the education tax. That bill contains the exemption from privacy for lawyers, bankers etc in getting the net tax bill amount from town clerks. If that bill, which is in House Appropriations, doesn’t emerge we’ll need a vehicle to carry the exemption language. We’re working on it. Stay tuned.

Thanks for reading.

Tuesday, March 27, 2012

Tuesday March 27, 2012

So after three weeks of silence on my part I’m back to (hopefully) regular posts. After the Town Meeting break I was away at an ABA event while the legislature worked to meet the crossover deadline. Then, last week the House, at least, spent most of the week on the floor advancing the bills that made the Friday, March 16th deadline. The budget passed along with a number of other bills that are now in the Senate; the same thing happened there also.

I can report that a number of the issues we’ve been following and that I’ve been reporting on have passed the original chamber and have crossed over. This week is full as the committees of jurisdiction in the second chamber have scheduled initial hearings on those bills. Here’s what’s on the calendar as of this writing:

Today the House Judiciary will review S.116, the probate proceedings bill while the Senate Judiciary Committee will meet Magistrate Barry Peterson for his confirmation hearing. Later today the House General Committee will review S. 52, an act relating to workplace bullying.

Tomorrow is a bit crazy with both judiciary committees doing work of interest to us at the same time! The house committee will be reviewing S. 203, the child support enforcement bill while the senate side will look at H.327, the uniform principal and income act; H. 403, the rewrite of the foreclosure statutes; H. 600, the amendment to foreclosure mediation; as well as H. 272, the private roads bill. This is all happening while the House General Committee will continue its work on S.52.

On Thursday the retention of Judges Carroll, Pearson and Magistrate Peterson will be decided in a joint assembly at 1 PM. On Friday afternoon the Senate Finance Committee will take testimony on H.565, which contains the changes to the licensed lender law.

Clearly there’s a lot going on this week. I should mention that the bill dealing with amendments to perpetual conservation easements remains on the Senate Action while the Notice Calendar contains S. 143, the bill energy disclosure bill. There are issues with this bill that we’ve opposed. It came out of the Senate Natural Resources Committee on a 3-2 vote. It is stripped of most of its language by the Senate Finance Committee in its amendment that really just leaves intact a study committee. An interesting floor battle is taking shape for later this week perhaps.

Also, the confirmations of Judges Arms and Maley are still on the calendar for Senate action.

I’ll post updates as I can this week. Thanks for reading.

Friday, March 2, 2012

Friday March 2, 2012

Today is the start of a one week break in the session. A lot has happened but even more remains to be done. The week started with a public hearing on the retention of Judges Carroll and Pearson and Magistrate Peterson. A number of Lamoille County lawyers recommended to the committee that Judge Pearson be retained. Two also spoke to the acting judge work of Magistrate Peterson. Vernon representative Mike Hebert testified in favor of Judge Carroll but no lawyers from either Windham or Bennington Counties made the trip north. The meeting was short lived and, after consulting a bit further with each candidate for retention, the committee adjourned. I expect they will vote unanimously to approve all three when they next meet on March 14th. The joint assembly vote will be held on Thursday, March 22nd.

This week I focused on the Senate Natural Resources Committee which was attempting to finalize its work on three bills of interest to most of you. The permit reform bills (S.28 and H.513) have generated much testimony, mostly contradictory. Those bills don’t have committee support to move forward. However, the committee will have one more week to find consensus on the “modified on the record” approach; this could be in the form of a pilot project in a district environmental commission.

They also tackled the energy disclosure bills. They began with S.143 as introduced. It would set up a voluntary disclosure and then replaced it with the house version, the mandatory disclosure. Well after a week of back and forth, it’s now back to the voluntary version. But it’s not over. The bill will contain a mandatory provision requiring a seller to provide the disclosure if a buyer requests it. The bill still contains the database of energy reports. I testified in opposition to the bill and its effects on transfers of title as well as the possibility to stigmatize a property with a negative report. There’s a long way to go with this one.

S. 179 may be ready to move out of committee; it’s the bill concerning amending perpetual conservation easements. The original bill calling for a panel and a lot of process has been scaled way back. There will be a working group on conservation easements that the VBA will have a seat on. I’ll report more on this when the session resumes. Since what I’m referring to is still in draft form and has not been voted on as of this writing if you want to see its present form I’ll have to send it or fax it.

The House Ways and Means Committee yesterday voted out a committee bill by a vote of 6-5; H.763 proposes to have the department of taxes collect the education tax! Calm down; it’s not set to begin until 2015 and there are some steps that need to be taken before that happens. The bill is controversial as you see in the vote. The problem for us is that the bill also contains the exemption from privacy of the net tax bill for lawyers, their paralegals or assistants in connection with real estate transactions. If this bill is in trouble we’ll need a vehicle to attach that language to in order to enact it. The bill calls upon working groups to weigh in on technical areas affected by the Department’s billing. I will present this to the Board of Managers at its meeting at the Mid Year in three weeks for their input on whether to form our own working group or join with another.

Finally, foreclosure mediation is back on the radar as the House Judiciary Committee wants the VBA to do another training. I’ve reserved June 28th at the Capitol Plaza here in Montpelier for a follow up CLE for mediators. The bill requires a change in the way mediators are appointed. Again, a study committee is created to work on changes in law and policy because of the anticipated repeal of HAMP on December 31, 2013.

Well that wraps up my half time report. The session will resume on Tuesday, March 13th. Unfortunately I will be en route to an ABA event with the next two Presidents of the VBA and out of the building that week. As always, thanks for reading.

Thursday, February 23, 2012

Thursday, February 23, 2012

This morning E Court Judges Durkin and Walsh met with the Senate Natural Resources Committee on the permit reform issues the committee is studying: whether to replace the E Court with a “PSB like” professional board and whether appeals should be “on the record”; de novo; or a “modified on the record”. The judges were able to review caseload statistics with the committee as well as present on the court’s jurisdiction; staffing, etc. The judges were able to respond to some of the criticisms leveled at the court by the ANR/NRB report and, without endorsing one legislative approach over another, spoke to the potential issues that would arise if a reform were to be adopted. The committee spent about 30 minutes more than the allotted time for the hearing as they sat listening intently for that time.

Now that it appears that the committee may be coming to the end of taking testimony, it’s soon time to make some decisions. Those decisions will have to be made on the basis of what the members want; what the Senate may adopt: what the House is likely to go along with; and what the governor will accept. There are a lot of moving parts and I can’t say what the result will be. Some things are unacceptable to the House; some to the governor. So where does the committee go? Should this be left for another biennium when ANR and the NRB will have two years to shepherd this through? Would they be willing to back off now? Will the Senate Committee feel as though, after investing this much time, it needs to pass something? We may know more before the Town Meeting break.

Yesterday afternoon many of us played the waiting game to get a hearing at House Judiciary on H. 600, the foreclosure mediation bill. It didn’t happen. And it’s not going to happen tomorrow; so it’s off the calendar until next week if not after Town Meeting. But foreclosure mediators reading this should take note that the committee is looking at a rotation process for mediators. It is also asking us to do an updated training for mediators. The VBA has tentatively scheduled a CLE for you on Thursday, June 28th at Capitol Plaza. There have been changes to HAMP, which as you know has been extended to 12/31/2013.

H. 600 also anticipates the creation of a study committee to work on tweaks to the process adopted in 2010 in H. 590. No action has yet been taken on that portion of the proposal. I’ll report on it as soon as I have a sense of what’s happening.

As always, thanks for reading.

Wednesday, February 22, 2012

Wednesday, February 22, 2012

This morning the Senate Natural Resources Committee will be taking up S. 183, potable water supply testing. This bill replaces S. 77 which was passed in 2011 but then vetoed by the governor. It would mandate the same disclosure in this language:
Sec. 4. 27 V.S.A. § 616 is added to read:
(a) For purchase and sales agreements executed on or after January 1, 2013,
the seller shall provide the buyer, within 72 hours of the execution of a
purchase and sales agreement for a property with a potable water supply, as
that term is defined in 10 V.S.A. § 1972(6), that is not served by a public water
system, as that term is defined in 10 V.S.A. § 1671(5), with informational
materials developed by the department of health regarding:
(1) the potential health effects of the consumption of untreated
groundwater; and
(2) the buyer’s opportunity under the agreement to test the potable water
(b) Noncompliance with the requirements of subsection 1 (a) of this section
2 shall not affect the marketability of title.
Testing of new groundwater sources would begin on January 1, 2014; see new 10 VSA 1981(b).
What I am finding really interesting this year is how the Senate is working on House bills before they either pass the House or even get a hearing in the House. For example, on Friday, Senate Natural will “mark up” H. 553, the perpetual conservation easement bill. That bill got a quick hearing in House Judiciary; then, even though it is in Judiciary, got a hearing in Fish, Wildlife and Water Resources. So it hasn’t passed the House yet the Senate is “marking up the bill”. Odd.
Also the Senate Natural Resources Committee is working on the Senate version of building energy disclosure in S.143, a bill that didn’t get much traction in the House Natural Resources Committee. So I’m not sure where this is all going.
Depending on the today’s house calendar I may be back in judiciary as they are scheduled to take up H. 600, the foreclosure mediation bill. But this afternoon may be cancelled as the House will be debating the fee bill which could take some time. Also, the next two days will probably be spent on the House floor as the health care bill is up for action. It’s doubtful there will be any committee time later this week. I’ll keep you posted.
Thanks for reading.

Friday, February 17, 2012

Friday, February 17, 2012

Last night the retention of Judges Carroll, Pearson, and Magistrate Peterson got started with the appearance of all three before the Judicial Retention Committee. The committee, of course, has statements from each judge as well as survey results and comments from many of you. Obviously this isn’t the case for Judge Peterson who was only sworn in sometime last week. in fact, he has yet to sit on any cases. he expects his confirmation appointment with the Senate Judiciary Committee to be either next Friday or the Friday after the Town Meeting break. Confirmation and retention running concurrently; interesting huh?
Judge Carroll explained her last six years as having been divided between the criminal and family divisions in both Windham and Bennington Counties. She feels much more comfortable as a judge now than six years ago. She enjoys the family caseload and would like to stay in that rotation. She feels as though she’s making a difference there. Her passion is juvenile law. She talked about some of the challenges of being a judge, most notably the travel and the impact of furlough days. The only real concern raised in the comments is that she is biased towards the prosecution. She replied at length and explained that she makes every effort to consider all sides, admitting however that, during her 12 years as a prosecutor, things were much more “black and white” than they appear to her now as a judge.
Magistrate Peterson is the first to be retained under this process. the judicial restructuring bill of 2010 extended judicial retention to magistrates. Previously the governor had full discretion whether to reappoint or not. His testimony really focused on his experiences as a acting judge in small claims matters as well as extensive experience as an acting magistrate. He reminded the committee of the extension of magistrate jurisdiction that was also included in the judicial restructuring bill.
Finally Judge Pearson appeared, fresh from a jury trial in Hyde Park. He jumped right into responding to some negative comments about his “arrogance”; “acting like a king”; and “doesn’t realize he is a public servant”. It was obvious that these comments affected him deeply and he talked about them at length. I’m sure he and the others ahd in mind last year’s negative recommendation on the retention of a judge when they responded to these comments. However, in Judge Pearson’s case, the ratings in the survey were good and most recommended his retention.
You and members of the public have the opportunity to comment on these judges on Tuesday February 28th beginning at 7 PM in the statehouse.
Have a nice weekend; thanks for reading.

Wednesday, February 15, 2012

Wednesday February 15, 2012

Last Friday, as I expected, the licensed lender bill, H. 565, passed the House on a voice vote. Yesterday the Senate passed the child support enforcement bill, S. 203. Because of legislative rules, bills must “lay over” one day before they are introduced into the other chamber. So tomorrow when the Senate next convenes, H. 565 will be introduced. I expect it will be committed to the Finance Committee which, by the way, is chaired by Realtor Ann Cummings. Hopefully this bill will move quickly; and, remember, it will take effect upon passage. Stay tuned.
Also, I would expect S. 203 to end up in the House Judiciary Committee sometime Thursday. House Ways and Means continues to work on the net property tax issue with disclosures to lawyers, bankers, escrow agents and some others. Everyone i seeking a solution to the Supreme Court’s decision and I expect one will be found.
Yesterday the Chief Justice along with Justice Dooley and Court Administrator Bob Greemore made a lengthy and detailed presentation to the House Appropriations Committee on their budget request for FY 13. The court is in substantial agreement with the administration’s recommend but is asking for $400,000 in additional money. Here’s why. The “pay act” (a separate bill form the general appropriations bill which covers salaries) will contain a 3% increase for state employees. This will allow the judiciary to “buy back” 8 of the 12 furlough days we’ve lived with for the past few years. The add on 400,000 will pay for the last four. If the legislature approves the request and the governor signs the bill, furloughs will be over.
Justice Dooley explained the impact of furloughs to the committee after distributing caseload statistics that showed, in short, that caseloads are dropping while backlogs are increasing. Why? Well with 31 sitting trial judges, losing a day a month means that over the year we are actually losing the services of 1.5 judges for the year. Interesting calculation and result. It seemed to convince the committee. He also spent some time discussing the IT issues the court is facing. Those problems are in the court’s hardware and in the developing of the case management system. Because the developer of the system has not delivered as to expectations the court has held back some payments while it tries to work things out. He did say he doesn’t want the judiciary to end up where DMV is! So, in short, the system will not be in place by the 3 year deadline and it will cost more than planned. For anyone that has done technology upgrades, neither of these should be surprising.
The rest of this week contains more work on H. 600, the foreclosure mediation bill; H. 272, private roads; and some prep work for next week when the Senate Natural Resources Committee returns to work on H. 513, the environmental court/on the record appeal bill. It seems that energy disclosure and conservation easements are on hold right now; there’s no action scheduled on either right now. But things change fast. Now is the time to be vigilant as the crossover deadline approaches.
Thanks for reading.

Friday, February 10, 2012

February 10, 2012

The Judicial Retention Committee met last night for its organizational meeting and to adopt this year’s schedule for the retention of Judges Carroll and Pearson. Interestingly enough Magistrate Barry Peterson, newly sworn in on Monday of this week and not yet confirmed by the Senate, will also have to go through the retention process. That is because it is the office or the “seat” if you will and not the individual that has the six year term. So Magistrate Peterson is filling the term of now Judge Maley which term expires on March 31st. Anyway, here’s the preliminary schedule.
The first meeting with the Judges will be on Thursday, February 16th at 5:00 PM in room 10. It is possible that Judge Carroll may be out of state; if so her interview will be on Tuesday, February 28th at 6 PM. Following that at 7 PM there will be the opportunity for public comment on all the judges; both will occur in room 11. The follow up meeting with the Judges, where they can respond to any public comment, is presently scheduled for Thursday, March 1st at 5 PM in room 10. The committee will meet to vote on Wednesday March 14th at 5 PM in room and the joint assembly and floor vote will be on Thursday, March 22nd.
Yesterday the Senate Judiciary Committee voted to unanimously confirm the governor’s nominations of Judges Arms, Maley and Walsh. I hope the full senate will get to this vote next week.
On the house side the licensed lender bill advanced to third reading this morning and I expect it to pass without objection. We’re still trying to get private roads to move out of committee. Rep. Michele Kupersmith continues to work tirelessly on getting this through.
Thanks for reading.

Wednesday, February 8, 2012

February 8, 2012

As I wrote last time I was away last week attending the ABA Mid Year Meeting. While I was gone the House passed the foreclosure rewrite, H. 403, and sent it on to the Senate. The House also passed the Uniform Principal and Income Act and that advanced to the Senate. After crossover I expect the Senate will begin working on both. The child support bill (S. 203) and the probate bill (S. 116) still need a bit of work in Senate Judiciary before heading to the floor. That should be done this week.
Yesterday the House Commerce Committee unanimously advanced H. 565, the licensed lender bill that we’ve been waiting for. I’m certain it will pass with no opposition and will do what I can to get it some attention in the Senate as soon as possible.
Also yesterday afternoon afternoon the House Judiciary Committee held a hearing on H. 600, the foreclosure mediation bill. The proponents, Vermont Legal Aid and the AG’s Office, are asking that mediation be extended to all foreclosures, although that is no longer part of the bill. I think the concept will go nowhere this year. We’re talking about a summer/fall ad hoc committee to see if the proponents and the lenders can come up with an agreement. The Vermont Bankers’ Association has committed to taking the lead on organizing that group.
I spent a good part of the morning in the Senate Natural Resources Committee yet again as they continued to work on the report from the NRB, specifically the recommendations to replace the E Court with a “professional board” and “modified” on the record appeals. Frank Kochman testified to his opposition to both changes, speaking mostly on behalf of the intervening landowner. He was followed by Environmental Law Section Chair Gerry Tarrant who sent out this summary of his testimony to Section members:
Well, we learned today that the Senate Bill (S.28) is apparently no longer viable. According to the Chair of the Committee the Senate is now focusing on adopting House Bill #513. I’ll need to get up to speed on it but two of the features are “on-the-record” review and a PSB model administrative panel instead of the court.
Today I was asked to speak on the PSB model. I outlined my knowledge of the Board, indicated the costs and procedures associated with it and explained that the reason that system works well is because the regulated companies financially support it with an annual tax. I explained that it probably works better for the utility rate case/service end of regulation and not so well for the environmental regulation because the PSB panel is geared to economic and accounting issues, not environmental sensitivities. The PSB model works well because the regulated companies are monopolies, agree to fund regulation and don’t often complain. That is not the case with neighbors, environmental groups, Chambers of Commerce and applicants. Further the PSB can essentially bring in the Department of Public Service and ANR for testimony so it can address many if not most of the issues without public intervention (though there is public intervention on the larger wind and generation/transmission projects.) I asked the committee members to take a look at the annual costs associated with the PSB before they became very serious about adopting it. There weren’t too many questions but I sense (and have heard) the Committee is split down the middle on both issues. I again heard the Governor is pushing the Chair to pass on-the-record review.
I sense this will play out more in the coming weeks. The Chair indicated people will be invited back. Legislation is very slow and repetitive but these two issues seem to have stuck with at least some members of the two Natural Resource committees and on-the-record seems to be more important with the Governor.Frank Kochman testified this morning. Ed Stanak testified. Both testified against on-the-record review.
This morning I’ll be headed up to House Ways and Means as they continue to discuss two issues of importance to those of you who do real estate. There is an ongoing discussion of the tax department’s collection of the education tax and all the issues that may raise when trying to check tax status of property. They will also look at the HS-122 exemption and how far disclosure would apply. More on that after the hearing.
The energy disclosure bill is still showing some signs of life, this time in the Senate, again in Natural Resources. That is scheduled for discussion tomorrow.
Thanks for reading.

Saturday, January 28, 2012

Saturday January 28, 2012

It seemed a little quieter than usual yesterday at the statehouse, no doubt due to the icy roads in the early morning. I know some committees canceled their hearings and others shut down early. But the Senate Judiciary Committee kept to its schedule, closing in on finalizing S. 203, the child support enforcement bill. There is still some work to be done and I expect it will be completed next Friday when the chair hopes to vote the final bill out of committee. They also had time to interview newly appointed Judges Alison Arms and Marty Maley. Although I was in another meeting for most of those conversations I was assured that both did well and confirmation by the full Senate should be no problem. Two weeks earlier Justice Robinson went through a similar interview and next Friday E-Court Judge Tom Walsh will be in. The Senate Judiciary Committee is moving through these confirmations quickly this year. There are also two judges that are standing for retention this year: Judges Carroll and Pearson; so far no hearings have been scheduled to move those.
On the House side, the House Judiciary Committee completed its work on H. 403 the foreclosure bill! I’ve already been asked for a copy of the final version but I do not have a clean copy. It will be found on the house notice calendar on Tuesday of next week assuming that it was delivered to the clerk’s office. It will be a “strike all”, meaning that instead of trying to weave small changes and amendments to the bill as introduced, the committee started over and wrote an entire new bill. But, most of the bill remains unchanged; it’s just much easier to read and understand a clean copy. The committee is still trying to wrap up a few issues with the Uniform Principal and Income Act and I hope that’s done and out be the end of next week.
I spent a bit of time in the House Commerce and Economic Development Committee this week testifying in support of H. 565, the amendment to the licensed lender act. As I’ve written before, either here or to the Property Law Section list serve, the bill replaces “act” as a lender or mortgage loan originator with “engage in the business of”, evidenced by “habitualness and repetition”. It also expands the definition of family members and clarifies transfers between former spouses. Everyone hopes H. 565 will go a long way to solving the issues you’ve had with the SAFE Act since the 2009 amendments. In short the bill takes us back to 2008, or as one witness said “back to the future”. These changes comply with the HUD regulations. Commerce may be ready to vote the bill out next Tuesday; if so it could be off to the Senate by the end of the week. I recommended that the law become effective on passage, meaning, the day the bill is signed by the governor. I’ll keep you posted as to its progress.
House Commerce will also tackle the private roads maintenance bill, H. 272, next Wednesday, setting aside the entire morning to do so. Property Law Section Chair Hall Miller will be our witness.
I reported last time on the conservation easement bill as presented to House Judiciary. That’s not returned to the committee’s calendar. In House Natural Resources, a second hearing on the energy disclosure bill was canceled yesterday due to driving conditions; it will be rescheduled but the future of the bill remains unclear.
I along with Chris D’Elia, President of the Vermont Bankers’ Association spent some time with Sue Minter, the new Irene Recovery Officer. She read and was interested in learning more about out Post Irene Property Law Task Force report. Chris and I continue to see interest in our report and gratitude for both of our association’s contributions to Vermont recovery efforts. They appreciate our collaborative approach to Irene and to the other projects we’ve worked on together and those we’re still working on together. For example, H. 403 is the result of an ad hoc committee that began working on the rewrite, I think, in 2008.
Earlier this week I wrote about the meeting we had on extending foreclosure mediation to all cases. H. 600 was introduced but still needs a great deal of work. That’s a case where there was no cooperative effort outside the statehouse to bring the different stakeholders to the table to find an acceptable approach. Legislators have commented to me how different and how difficult it is to resolve these positions if the parties have not talked. We do have some time to work things out as the crossover deadline this year is the Friday before the Town Meeting recess, March 2nd.
I will be out of state next week attending the ABA Mid Year Meeting so I will not be reporting until February 7th at the earliest. As always, contact me with questions and suggestions.
Thanks for reading.

Wednesday, January 25, 2012

January 25, 2012

Yesterday the House Judiciary Committee heard from representatives of our ad hoc committee with what we all hope will be the final changes to H. 403. They also decided the one outstanding policy issue which our group was unable to resolve. I think it is fair to say that the committee is opposed to using the non judicial process for dwellings owned by individuals. Once legislative counsel incorporates the changes the committee will give the bill a final once over and it should be voted out unanimously. Then we do it all over again in the Senate.
Earlier in the day the Vermont Bankers’ Association hosted a meeting on the issue of extending foreclosure mediation to all foreclosure cases. There was NO agreement on that issue but the parties agreed to put their objections and proposals in writing and send them to the “other” VBA and the conversation will continue.
Later today the House Natural Resources Committee will begin work on H. 497, the energy disclosure bill that replaced last year’s H. 57. Tomorrow H. 565, the amendments to the licensed lender law will be taken up in House Commerce. I’m scheduled to testify for the VBA and will report back on how it goes.
Meanwhile the debate continues in this year’s version of permit reform. The Senate natural Resources Committee has a full list of witnesses for tomorrow morning on the future of the E Court as well as “on the record”, “modified on the record” or “de novo” appeals. Although I’m scheduled to be elsewhere at the time I’ll try to get a few minutes in each hearing and get a report back before the end of the week.
Thanks for reading.

Tuesday, January 24, 2012

January 24, 2012

We seem to be caught in a sort of time warp when it comes to the foreclosure statute rewrite in H. 403. Although I was away on Friday attending a New England regional bar meeting, the House Judiciary Committee spent some time again reviewing the bill and taking testimony from Judge Teachout. She was critical of some of the language and wanted the bill to cover some things that were not and are still not included. So, the Chair asked our ad hoc group to meet yet again to amend the amended language of the amended draft to the bill as introduced; yes, I meant to say that! So yesterday the VBA hosted yet another meeting where we continued to narrow down the issues and I think now we’ve resolved all but one: the owner occupied language that appears in non judicial foreclosure. I don’t think we’ll find agreement there and the Judiciary Committee will just have to make that policy decision. Later this afternoon we’re back before the Committee presenting and explaining our amendments yet again.
Also, the Vermont Bankers’ Association is hosting a noontime meeting to try to resolve the issue of extending mediation to all foreclosure cases, not just to those mortgages covered by HAMP (since that program is set to expire at the end of this year). There is no bill yet introduced that will make the extension but Vermont Legal Aid and the AG’s Office have it among their priorities for this session.
Later this week the House Commerce Committee will begin testimony on H. 565, the licensed lender bill. I hope all of you that are interested in this issue will take a look at the bill and get any comments to me before Thursday. At this point I have one of our members who wants to come in with some comments and suggestions to make the exemption language a bit more clear.
Action on H.272, the private roads maintenance bill has been delayed until next week due to the unavailability of witnesses.
There was an introductory explanation of H. 553, the conservation easement bill. At the conclusion of the limited time available to the committee the chair said he was not sure when or if they will return to hear more. I know there are many of you with some real reservations about the bill and I will track it and keep you informed in this blog.
Later this week the Senate Judiciary may well complete its work on H. 203, the child support enforcement bill along with S. 116 the probate bill. The House Ways and Means Committee will return to work on the proposal for the Tax Dept. to collect the education portion of our property tax. I know this is an issue of great concern to title searchers and we are approaching the time when I may ask you to start contacting your legislators and informing them of what this change could mean.
Finally, I will be presenting the report of the Post Irene Property Law Task Force to the Speaker of the House tomorrow and to the governor’s Irene Recovery Officer Sue Minter on Friday.
More as the week goes on. Thanks for reading.

Wednesday, January 18, 2012

Last Wednesday the House Judiciary Committee devoted the entire day to a review of H. 403. Many of us that served on the ad hoc committee were present. There were a few questions raised by the legislators that sent many of us back to work to resolve. That meeting was held yesterday at the VBA. I wish I could say that everything is done and put away but there’s still some work to do. Judge Teachout is scheduled to address the committee this Friday. Because Judiciary spent so much time on H. 403, they delayed discussion of the extension of the foreclosure mediation procedure to all mortgage foreclosures to another day. That proposal has a lot of opposition and the proponents have yet to do the necessary legwork with the opponents. If mediation does move forward I’d like to see the two foreclosure bills move separately and not be combined into one.

Last Friday when many of us were enjoying the “Thaw” in Montreal (the coldest place on the planet every MLK Weekend) the Speaker of the House asked Chris D’Elia of the Vermont Bankers’ Association to convene a meeting of interested parties to discuss the Supreme Court’s decision in In Re: HS-122. We were represented by Jeff Kilgore. Chris sent me a copy of his report to the Speaker. Here it is:

Per your request, on Friday, January 13, the Vermont Bankers Association convened a meeting of stakeholders to discuss the Supreme Court's ruling about keeping state tax credit information private. Those participating in the meeting included: representatives from the town of Manchester; Clerks and Treasurers Association; bankers; lawyers; realtors; the Tax Department; League of Cities and Towns; and Senator Ann Cummings.

After careful consideration and deliberation of the many challenges created by the Court's ruling, the group agreed on the following recommendations:

1. The HS122 report should be confidential;
2: A property tax bill containing only a gross tax amount be public;
3. A property tax bill containing both gross and net tax amounts be confidential;
4. An exemption created for the following parties to have access to the tax bill
containing both the gross and net tax amounts: lawyers; bankers; escrow servicing companies; accountants; tax preparers; realtors; outside auditors; and municipal personnel on a need to know basis;
5. A penalty provision to ensure compliance with the exemption;
6. All other town records should maintain their current status of public versus

Christopher D'Elia, Vermont Bankers Association
Alison Kaiser, Town Clerk, Stowe
Karen Richard, Town Clerk, Colchester
Christopher Rice, MacLean Meehan and Rice
Christopher MacDonald, Vermont Association of Realtors
William Johnson, Vermont Tax Department
Steve Jeffrey, Vermont League of Cities and Towns
Senator Ann Cummings
David Freteling, Town of Manchester


Last week I reported on the hearing at the Senate Natural Resources Committee on the report on Improving Vermont’s Environmental Protection Process. While I was in House Judiciary on foreclosure VBA Environmental Section Chair Gerry Tarrant testified to the committee on the Section’s response to the proposals in the report. Instead of trying to paraphrase his report I am reprinting his email to the Section explaining the hearing. Here it is:

The Environmental Section is composed of 176 lawyers. While we do not always agree and there is no unanimous position on the Shems/Markowitz Report I have received a number of responses from lawyers and all of the membership has had an opportunity to see their responses. Based on those responses I stated:

The lawyers in the Environmental Section strongly favor retaining the Environmental Division – Superior Court because most all lawyers – whether they present environmental groups or applicants – desire the due process a court provides.

While not as strongly stated, I stated that most of the lawyers I have heard from do not seem to favor on the record review but generally or strongly prefer a de novo review before a court. (See Slason, Reynes, Goss, Grayck, Landis-Marinello, Kockman, Anderson, McNaughton comments.) I took the opportunity to read some of what Larry Slason wrote to me contained in the second bullet under Section II written by Larry. I read most of the third bullet and spoke to the need to present “substantial evidence on every single permit criteria and subcriteria.” The committee members seemed to appreciate this and thought most applicants would know whether or not various applications/issues would be appealed early on. Of course, as the applicant prepares he needs to decide whether to prepare before he files so Larry is probably right that the applicant would need to make a much stronger (and expensive) case before the District Commission in most cases. If most cases are not ultimately appealed then it might be argued that applicants have over spent on initial presentations before the District Commissions. I also mentioned that without court stenographers or videotaping the proceedings any tape would make a district commission hearing incomprehensible for an on-the record appeal. Consistent with many comments I mentioned that I thought it might take too much time and effort to overcome what would really be a recording or tape of a less structured hearing process run largely by lay boards with relaxed evidentiary standards. I didn’t think it would solve the problems people want solved.

I was asked by Sen. McCormick why the super panel wouldn’t work in those larger cases so they applicants could side-step the local boards or regional commission. I advised him that it wasn’t clear but it seemed that most of the comments I received did not favor this approach based on forum shopping, abuse of discretion, unequal treatment, etc. I also mentioned that some of our larger firms that do business in Maine do not think that process works well there.

I was asked by Sen. Brock why lawyers do not appear to favor on the record appeals while business representatives were telling him that’s what they want. The only answer I had was that I didn’t think the businesses had had an opportunity to review this with their counsel before they took a position (and that on the surface most people think that “on the record” appeals seem cheaper and quicker) and that those lawyers who have thought about it seemed to understand that “on the record” appeals would end up taking more time and costing more money for more applicants.

Sen. Lyons asked a question on professional boards. She felt I was comparing the Environmental Court with a lay board and she had in mind a professional board like the PSB. She wanted to know why a professional board couldn’t work and also provide other benefits. I agreed it could work but that the PSB was unique because it only regulated a handful of utilities and although they had a full docket they were funded by “bill backs” from the utilities so money isn’t a problem. Plus they have the DPS Public Advocate funded by bill backs. That isn’t something that is workable with an environmental panel or board. But Sen. Lyons seemed to really like the PSB model.

I supported making the process faster and stronger by the Legislature adopting a bill that would 1.) give the Court a magistrate or additional clerk(s) to help with work load; 2.) requiring the ANR to adopt a process (with notice to interested parties) to allow their permits to be given binding effect in the future which would expedite the Act 250 process; and 3.) that a Municipal Administrative Procedures Act should apply to all municipalities.


Members of both the Environmental and Property Law Sections should pay some attention to the following bills:

H. 565, the revision of the licensed lender laws that caused and continue to cause so many questions and added expense to transfers of title.

H. 553, the conservation easement modification bill that the Property Law Section had quite a bit to say about late last year when I circulated a draft. The Environmental Law Section has so far been pretty quiet on this. It will get its first airing tomorrow afternoon in House Judiciary.

H. 497, energy performance disclosure required upon sale. This bill replaces H. 57 form last year’s session and is the product of a summer study committee.

This morning the House Ways and Means Committee spent time on hearing options on paying the education portion of the property tax directly to the state! I don’t know if this idea has legs but the bankers shot it down pretty quickly. I imagine title searchers might well agree!
Finally, as you may have learned through both print and TV media, yesterday I was involved in presenting the Final Report of the Post Irene Property Law Task Force to the entire Senate sitting as a “Committee of the Whole”. It was quite the day and since there has been so much coverage, I’ll leave it at that.

Thanks for reading.

Saturday, January 7, 2012

Saturday January 7, 2012

Well the first week of the session went by without my having the time to sit and pen a blog entry; so here goes. I’m sure you’ve followed news reports about what’s happened thus far in the session but I want to point out a few things of special interest to our members. You may recall that, back in October, I was asked to chair a special task force to review Irene’s impact on real property and our law’s ability to respond. So I organized what became known as the Post Irene Property Law Task Force. After numerous meetings involving nineteen different state agencies and associations our Final Report was delivered to the House and Senate Judiciary Committee this week. A copy is available on the VBA website.
Because the issues raised in the report cross the jurisdiction of almost every legislative committee, the President Pro Tem has asked that I and Co-Chair Chris D’Elia, President of the Vermont Bankers Association deliver and explain the report to the entire Senate. So, a “Committee of the Whole” will meet on the senate floor on Tuesday, January 17th. This will be the first time that process will be used in about thirty years! Extraordinary events call for extraordinary response.
Although Irene may have dominated my first week much more was going on. For example, the Senate Judiciary Committee heard testimony on the report of a special committee that studied strategies to improve child support collection.
Read the report here:
Judiciary will return to look at specific bill language next Friday. I will post a link to the bill when it is drafted and introduced. I don’t plan to be there then as I will be at the YLD Thaw in Montreal.
I spent a good portion of Wednesday morning in the Senate Committee on Natural Resources when it was considering a report on Improving Vermont’s Environmental Protection Process. That report can be read at the Natural Resources Board website:
After hearing the testimony of ANR Secretary Deb Markowitz and NRB Chair Ron Shems, I put two questions out to the VBA’s Environmental Law Section list serve at the request of Committee Chair Senator Ginny Lyons. They are: should the present Environmental Division of the Superior Court be replaced by a “professional board”; and, should appeals (to the Court if it is retained) be “on the record” or “de novo”. That generated quite a bit of discussion on the list and I am beginning to compile some witnesses to testify when the committee returns to this issue. I’m not sure exactly when that will be but I will continue to cover it in this blog as it moves forward.
I noticed this morning the upcoming introduction of H.513 next Tuesday; look at the purpose statement of the bill:
Statement of purpose: This bill proposes to replace the natural resources board with an environmental review board that would hear the appeals and enforcement cases related to state environmental permits that currently are heard by the environmental division of the superior court. The new board would have the administrative oversight and rulemaking authority for the Act 250 program presently assigned to the natural resource board’s land use panel. The rulemaking authority of the natural resources board’s water resources panel would be transferred to the secretary of natural resources. The environmental division of the superior court would continue to hear appeals and enforcement cases related to local land use bylaws, except that an appeal of a local land use decision would be to the environmental review board if the underlying project is also subject to state environmental permit requirements. Read the bill here:
I have not yet gotten to see the report of the Building Energy Disclosure Committee that worked on that issue over the recess between sessions. You may recall that H. 57 is the bill that would require disclosure at the time of sale. That bill seems to been replaced by H. 497 which was just introduced; here it is:
I expect hearings to begin on this soon although the committee of jurisdiction (House General, Housing and Military Affairs) does not have it on its calendar for next week. Instead they will be looking at unfair housing practices and mobile homes.
Here are a couple bills of interest introduced during the first week.
S. 115 would prohibit malpractice claims against public defenders unless the plaintiff first prevailed in a PCR proceeding based on ineffective assistance of counsel.
S.123 would require court clerks to allow attorneys of record to get a copy of jury questionnaires or to view them on a secure website.
S. 162 would provide that a general power of attorney may grant powers not expressly stated if the facts show that the principal intended the agent to have that authority.
S. 166 would provide for “on the record” appeals from Act 250 district commissions to the E-Court.
These are just a few that I thought worthy of mention. Remember that introduction does not indicate that any of them will even get a hearing after they are referred to the committee of jurisdiction. There were over 200 bills introduced this week, which of course got added to the hundreds from last year.
Next week, even though it’s a short one for many of us going to the Thaw, will be a busy one. On Monday, there’ll be a meeting at the VBA of the ad hoc committee that drafted what is now H. 403, the bill to reorganize our foreclosure statutes. We’re planning to do a final read through of some amendments and then present it to the House Judiciary Committee on Wednesday morning. In the afternoon, Grace Pazdan of Vermont Legal Aid and Elliott Burg of the AG’s Office will ask the committee to extend the foreclosure mediation program, developed for HAMP loans, to all mortgage foreclosure actions.
Also next week Mark Langan, Co-Chair of the VBA’s Probate and Trust Section will make two appearances at the statehouse. He will testify at the Senate Judiciary Committee on a probate study committee he participated in this summer; and then go to the House Judiciary Committee to testify on the Uniform Principal and Income Act.
Also, the speaker has asked lawyers, bankers, realtors, and town clerks to work together to resolve the issue of public availability of property tax bills. There is a growing call for overruling the Supreme Court’s decision in HS-122. I’ll report on this after a meeting scheduled for late next week.
I hope this overdue update on the happenings in Montpelier helps. As always let me know what more I can or should be reporting on to keep you informed. And, as always, thanks for reading.