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.