Without trying to jinx anything I thought I’d do a quick wrap up even though “it ain’t over ‘til it’s over”. Word is split around town as to whether the session is likely to end tomorrow; it seems to be trending against a Saturday adjournment. But here’s where the bills the VBA has been following are. As you know, H.431, the foreclosure mediation bill has been signed and is now Act 8. The new foreclosure process will begin December 1^st . Because it will be an “opt in” process both the House and the Senate passed versions of the budget contain money for Home Ownership Centers (HOCs) to do outreach and counseling of homeowners. Also, Vermont Legal Aid is slated to receive $75,000 to be used in foreclosure defense. That money and the $125,000 to the HOCs came from a settlement reached by the AG with a loan processor, which paid the state $371,000.

Last night the House concurred with a proposal of amendment from the Senate on S. 31, the “Billings” bill. So that’s now on its way to the governor for signature. Here’s the language, effective July 1st:

S.31

An act relating to prohibiting a court from consideration of interests in

revocable trusts or wills when making a property settlement in a divorce

proceeding

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 15 V.S.A. § 751 is amended to read:

§ 751. PROPERTY SETTLEMENT

* * *

(c)(1) Notwithstanding any provision of subsection (b) of this section to the

contrary, in making a property settlement the court shall not consider the

parties’ interests in revocable estate planning instruments, including interests

that pass at death by operation of law or by contract, unless the interest is

vested and not capable of modification or divestment.

(2) This subsection shall not apply to estate planning instruments

created by the parties of the divorce proceeding.

(3) A person shall not cause marital property to be placed in an estate

planning instrument for the purpose of excluding it from a property settlement.

A court may order a party to produce evidence related to an estate planning

instrument if it appears that marital property may be included in the

instrument.

(4) A person who is not party to the divorce may be subjected to

discovery or compelled to testify on the subject of his or her own last will and

testament, on any revocable trust of which he or she is settlor or, in

conjunction with any of these instruments, on his or her assets if the court finds

that a party has fraudulently represented his or her opportunity to acquire

capital assets and income in the future.

(5) The court may impose all applicable sanctions, including an award

of attorney’s fees, upon finding that a party fraudulently represented his or her

opportunity to acquire capital assets and income in the future pursuant to this

section.

Sec. 2. EFFECTIVE DATE

This act shall take effect on July 1, 2013.

Other bills we followed include S.7, which has been amended to include “bad faith claims of patent infringement”. That language (section 2 of the bill) was added in the House and the bill is on the Senate calendar today. However, the Senate has already added similar language to another bill (H.299) and sent it over to the House. In one vehicle or the other, that section will become law.

We followed S. 119, a bill that would establish a panel to rule on amending perpetual conservation easements. The bill took too much time moving through the process on the Senate side to allow the House to complete its work. As of right now the bill remains in the House Committee on Natural Resources and will be acted upon in 2014. The additions to the bill by the Senate, both a fee to seek an amendment and the appropriation for the panel members, necessitated stops in Senate Finance and Senate Appropriations, after having left Senate Natural and Senate Agriculture. The same steps need to be taken on the House side and, regardless of the date of adjournment, there is not enough time to do what needs to be done.

The lakeshore protection bill is spending the summer and fall in the Senate Natural Resources Committee as members felt that the public needed more opportunities to speak to it. Accordingly, they are scheduling public hearings throughout the state before retuning next year to complete work on the bill.

Other bills that moved from the House to the Senate but moved so late in the session that they will likely not see action are H.441, changing some provisions of UCIOA, and H. 483, revisions to UCC Article 9. Both bills are sitting in the Senate Rules Committee awaiting “being sprung”. I’m not sure that’s going to happen right away but, you never know!

Another bill of interest to many is H.523, a judiciary “omnibus bill”. It contains a number of provisions that would affect practitioners. It contains language about the availability of jury questionnaires. It modifies a minor provision on the UCCJEA. It addresses an issue that has arisen in family division. It would allow the court to require the payment of the full filing fee IF a stipulation is not acceptable to the court or if the matter becomes a contested matter. It also clears up the fee for filing motions in family division, making it clear that there is no fee for pre judgment motions. Recently, some units began requesting a fee while others believed the fee was for post judgment motions only.

But wait, there’s more. In fact, this bill began life as H. 1 and was maybe two paragraphs long. Well, now it covers creating a fee for a motion for expungement of a criminal record; amends the attorney licensing special fund; adds what was S.1, requiring courts to consider the financial costs of sentencing alternatives; added a completely new section on abused animals; adds language on automated license plate readers; creates a position of chief deputy states’ attorney in larger offices; adds immunity for volunteer athletic coaches; and finally, (at least I think that’s all there is) permits assistant judges to sit with magistrates during child support contempt proceedings! I know that many of you expressed concern about this and I’ve certainly shared your concerns. But here’s where we are. Very little of all this was in the House passed version. The bill won’t go back to the House until later today at the earliest. It’s very likely the bill will summer in the House Judiciary Committee. That’s both good and bad. There are some useful parts of bill that we want. But, I don’t see it passing with all this new language added.

Finally, although the budget conferees are continuing to meet, I am hoping that the small bump in Vermont Legal Aid funding that both the House and Senate passed versions contain will stay in the final agreement. If it does, it will be the first increase for VLA in about six years; that includes any COLAs. They’ve seen no change in their funding for all that time. Fingers crossed. VLA needs the bump given the Vermont Bar Foundation’s funding cut due to weak IOLTA receipts.

I’ll update as soon as there is anything new to report; but, as always, thanks for reading.

Wednesday May 1, 2013

It’s been a busy few days since I weighed in here last. The “Billings” bill, S. 31, passed the House this morning with an amendment addressing spendthrift trusts. The House Judiciary Committee decided that the amendment really had no effect and let it go. The bill must now return to the Senate for either its concurrence or rejection and request for a committee of conference. We probably won’t know until next week what awaits the bill.

Yesterday and today were spent working on issues around federal pre-emption in cases of bad faith assertions of patent infringement and estate tax! The first is a pretty novel issue for the VBA to tackle but thanks to the good efforts of the VBA’s Intellectual Property Section and its Chair, Andrew Minitsky, the Section weighed in on its thoughts on S. 7. The bill then emerged from the House Commerce Committee and is now headed to House Judiciary for its review. I’m sure the VBA will be invited back to comment on the flaws that members of the Section noticed.

The estate tax provision and the apparent creation of a Vermont gift tax caught the attention of CPAs, members of our Probate and Trust and our Tax Law Sections and finally resulted in the passage of an amendment stripping three sections of the bill and creating a study committee to work out the details of what the Senate was trying to do in H. 528. Many thanks to Senators Ann Cummings and Peg Flory for their work on this amendment as well as to Paul Hanlon who met with both senators on Tuesday afternoon.

The Senate will be debating the budget this afternoon and tomorrow. after passage it returns to the House for conferees rto work out the differences in each version of the bill. The same holds true for the tax bill which passed earlier today.

As always, thanks for reading.

Tuesday April 23, 2013

House Judiciary voted out the Billings bill, S. 31, unanimously today. It should appear on tomorrow's House Calendar under Notice; then it could be acted upon Thursday and Friday.
The Senate Appropriations Committee continues to plod through the budget bill in hopes of finishing it by tomorrow; I'm not sure if that's going to happen now.

Monday, April 22, 2013

Although there has been little to report on our priorities in the last month we did see final passage of H. 431, the foreclosure mediation bill. Tomorrow I expect that the House Judiciary Committee will endorse its version of S. 31, the “Billings” bill. I’m pretty sure that we’ll see final passage this year although it is likely the Senate will initially refuse to concur and ask for a committee of conference. The bills are not too far apart. The House version has the support of all the parties that testified both for and against the bill as introduced. So things are pretty close to resolution. We’ll see.

Right now the major items in the way of adjournment are taxes and the budget. we’re still hoping for the end of the session on Saturday May 11^th. It could run into the following week. The Senate Appropriations Committee initially hoped to complete work on its version of the budget last Friday. Well, they missed that deadline and will probably take until Wednesday to finish its work. Again, we just wait and see.

Thanks for reading. I’ll let you know tomorrow if S. 31 comes out of committee.

Wednesday, March 27, 2013

So it’s been two weeks since I’ve updated this blog; my apologies. It’s not as though I wasn’t keeping track of what’s been happening though. After my last post I was out of town for the VBA Mid Year Meeting while the house and senate struggled to meet the crossover deadlines. Then, as happens every year, the week after crossover, both chambers’ calendars are full and more time is spent on the floor of each chamber than is spent in committee.

The bills I have been following most closely, S. 31 (“Billings”) and H.431, foreclosure mediation, have both crossed over and each judiciary committee has begun work on its bill. Yesterday, Susan Murray and Penny Benelli testified on S. 31. Tomorrow senate judiciary will start work on the mediation update; I am scheduled to testify along with a few others. I expect both bills to reach the governor’s desk before adjournment.

Today the joint assembly agreed to retain all the superior judges and the one magistrate that sought retention. Later today and for the remainder of the week actually, the house will be debating the tax bill and the appropriations bill. That’s. of course, after they finish work on the shore lands protection bill! Things should get back to normal next week after al lthis floor action! Let’s hope anyway.

Thanks for reading.

Wednesday, March 13, 2013

Last night the Judicial Retention Committee voted to recommend retention of all the superior judges. There was no vote on Magistrate Zander who the committee wants to visit with again on Thursday, March 21^st as a follow up to the public hearing. There were no negative votes and only one member abstained on one judge with one member being absent. The votes, then were mostly 7-0-1 with one being 6-0-1 and one abstention. The joint assembly vote will be held on Thursday, March 28^th at 10:30.

The House Judiciary Committee heard testimony on H. 431, the update to the foreclosure mediation process. The bill extends mediation to all foreclosures after the expiration of HAMP, set for December 31 of this year. This is set up as an “opt in” process, supported by increased outreach by home ownership centers. Of course this requires funding for those centers and the House Appropriations Committee is looking at options to provide that funding. One option is to use most of a $371,000 settlement award to the state from a loan processing company case pursued by the attorney general. One of the items on the table is some increased foreclosure defense funds going to Vermont Legal Aid; the other option does not include that piece. Although crossover is Friday, money committees are not required to have their work completed by then; they have until the end of the month.

There was a lot of work on three other bills that all affect property and should be of interest to the real estate bar. Those bills are S.119, the perpetual easement bill; H. 216, the energy efficiency bill, and H.223, the shoreland protection bill. All three are in one stage or another of being redrafted ; I’ll try to get up to date information later today. I’ll also try to post a report today before I leave for the VBA Mid Year Meeting at the Sheraton tomorrow and Friday. Thanks for checking in a reading this update.

Friday, March 1, 2013

I know, it’s been a week since I last posted here; sorry but there was a lot going on in the last week before the Town Meeting break. Of interest to you, of course, is the public hearing on the retention of the seven judges and one magistrate. Let me just say that one litigant from Orleans County had some negative comments about Judge Gerety and Magistrate Zander. She said that the judge needed more training on dealing with people with “hidden disabilities”. She maintained that he did not let her speak and only did so reluctantly after she objected, giving her only two minutes.

Attorney Doug DiSabito, a former judiciary employee in Grand Isle County, testified in favor of Judge Tomasi. He praised him for his vast knowledge of the law and a real insight into people. He said the judge’s findings a re well written and he is respectful of litigants and the lawyers.

Two witnesses spoke in favor of Magistrate Zander. They were Caledonia and Essex Superior Court Clerk Kathleen Pearl and former ADAP and current Washington County Deputy Sheriff Dick Powell. Dick Powell spoke to the difficulty in dealing with self represented litigants during an emotional hearing at a difficult time in their lives. Both witnesses spoke to her respect for the people appearing before her and her willingness to listen to both sides of the issue. Kathleen Pearl spoke to the other duties Magistrate Zander performs. She cited examples of working on internal issues in the courthouse, serving on committees, etc.

Finally Teri Corsones and Steve Dardeck testified in favor of the retention of Judge Cohen. Steve told the committee that Judge Cohen stands out in patience, courtesy, and willingness to listen and shows no gender bias to either litigants or lawyers. Teri echoed the comments about patience and spoke to his support of the “low bono” project in Rutland County. She referred to Judge Cohen as an “exemplary model of professionalism and cooperation”.

So, now the legislature takes a week off; when they return on Tuesday, March 12^th, the retention committee will be meeting with Judge Cohen and Magistrate Zander. After that the committee will take its votes on whether to recommend retention of the each of the eight. The joint assembly vote is scheduled for Thursday, March 28th at 10:30.

Thanks for reading. Check back after March 12 for more updates.

Thursday, February 21, 2013

A couple of things of interest happened yesterday. First, the Senate Judiciary Committee after three attempts at rewriting S. 31, the Billings v. Billings fix, came to a unanimous agreement on a strike all bill. I sent the bill to the Family Law and Probate Law Sections. It can also be read in today’s Senate Calendar in the Notice section. After floor action the bill will move to the House where the process will start over. Almost 70 family and probate practitioners signed a letter to the judiciary committee members asking for action on the Billings fix. Stay tuned as there is way more to come.

Property lawyers were surprised yesterday when I distributed a bill that would end adverse possession in Vermont. No, I don’t know why. It’s H. 307 and can be read here: http://www.leg.state.vt.us/docs/2014/bills/Intro/H-307.pdf

Last night the Judicial Retention Committee met with judges Gerety, Griffin, Zonay and Magistrate Zander. No, that’s not a misprint. Judge Griffin was sworn in on January 4^th to fill out the remainder of the term of Judge Zimmerman, which expires on March 31^st. It’s the position that has the 6 year term not the individual. So, he has to be retained along with Judge Gerety who has been on the bench now for only 2 years. Judge Zonay was in a similar position as Judge Griffin 6 years ago and is now standing for his second retention.

Judge Gerety was the first to be interviewed and talked about how rewarding his work is. Although he was very familiar with the civil and family dockets while in practice he is working hard at mastering the criminal docket. In his letter requesting retention he reflected on two things he wants to improve. He admitted that when the court gets real busy and he starts to fall behind that he can be “short” with people as the stress builds. His other concern was the timeliness of some of his written decisions. Although most of his survey responses were very positive, the negative ones commented on exactly the two issues he had self identified. The committee appreciated the introspection and self criticism.

Judge Griffin’s questioning was quick as he discussed the transition from practice to the bench. BTW, his appointment was confirmed by the full senate earlier in the day.

Judge Zonay began his presentation by referring to his earlier retention when he said he took the position “to make a difference” and that remains his goal every day. He told the committee he took to heart all of the comments in his surveys grateful, of course, for the positive ones and learning and growing from the criticisms. There were some comments from GALs about the judge’s unwillingness to engage or listen to them. He responded that the law does not allow GALs to speak to certain things and he follows the law. That prompted Senator Peg Flory to ask Judge Zonay to think about needed changes to our statutes to clarify a solution.

Finally, the evening ended with the first ever Magistrate retention hearing. Previous to restructuring in 2010, magistrates (who always had a 6 year term like judges) had no process. Retention was merely at the discretion of the governor. Barb Zander told the committee that the five magistrates are grateful for the opportunity to get feedback and reviews through the retention process. she’s been a magistrate for thirteen years working in the Kingdom and in Washington county. She spoke to the impoverished nature of those counties and the high unemployment in the northeast part of the state. she had to address a number of negative comments from court staff and from litigants. Some of the comments said that people felt they didn’t get a fair hearing; that she can be intense; and, in one case, reduced a court staff person to tears. She responded of course, saying that she has let the calendar drive her and failed to think about what people are seeing. But she has begun a process of correction for the shortcomings that were identified. She is working with a mentor judge on demeanor issues. She is also going to get some time in a a courtroom with video capability so she can review her performance on the bench. Although in the courts she serves she is physically separated from staff, she will be making an attempt to be more social with them and have more interaction with them.

You will all have a chance to address the committee next Tuesday, February 26 from 7 to 8:30 PM in the statehouse if you’d like to be heard on the retention of any of the eight judicial officers. As always, thanks for reading.

 

 

Wednesday, February 13, 2013

Last night the first four judges were interviewed by the judicial retention committee. The committee heard from Judges Cohen, Crucitti, Manley and Tomasi. The two hour hearing focused mostly on the anonymous comments contained in the legislature’s survey of lawyers, court staff and others. Some judges faced more questioning than others. The committee chair, Rep. Tom Koch, made it clear that the committee does see the anonymity of those comments as an issue. But all recognized that judges don’t get the feedback that could be helpful to them between the retention processes that only occur every six years. What the committee really looks for are criticisms that repeat from one six year term to another. For example, Judge Cohen faced a number of negative comments including that he is indecisive, unclear from the bench, disorganized, unprepared, and takes too long to issue written decisions. But for the time in issuing rulings none of those criticisms were present six years ago. Rep. Koch engaged him in conversation about the MERS cases and praised his work in researching and issuing those decisions and in his help in passing the foreclosure mediation bill.

Judge Crucitti’s hearing was the quickest one I can recall, ending when the chair remarked that his scores were the highest he’d seen. The judge spoke about substance abuse and his willingness to take some chances and develop new programming to help defendants overcome that issue.

Judge Manley was next to appear and spoke to her experience in the three northeast counties where she presides in multi jurisdictional courts. She remains excited about her work even if it means learning new skills in dealing with, for example, self represented litigants. There is a different stress level in those courts where a judge covers three courts at once. She does enjoy going into a larger county where there may be one or more judges to consult with. She agrees judicial rotation is good for a judge’s “emotional health”. Although the domestic docket may be the most stressful, she enjoys the interactive nature of that docket as well as the juvenile docket. When in criminal division she enjoys working with jurors. Like Judge Crucitti, she has grown in the job and feels more comfortable in doing it. She did acknowledge the accuracy of a comment that she could be short with staff and has begi=un the address that shortcoming.

The final judge was Judge Tomasi. His background, as many of you know, included time in a Boston law firm, service as an assistant AG and an assistant US Attorney.  So, as often happens with our system of judicial selection and assignment, he was assigned to a multi jurisdictional court and had to learn the domestic and criminal dockets pretty quickly. He offered that it is difficult for judges to get feedback and was somewhat taken aback by comments from court staff. Some of the criticisms of Judge Tomasi are that he needs to take better control of the courtroom and be more assertive. He acknowledged that the first few years were very stressful but he’s reached out to more experienced judges for guidance.

I just returned from yet another canceled hearing on S. 31, the Billings bill. The Senate Judiciary committee is reviewing amendments to S. 77, the patient control at end of life bill that is up for Senate action this afternoon. I’m not sure when the committee will return to S. 31.

Thanks for reading.

Friday, February 8, 2013

The judges that will be interviewed on Tuesday, February 12 are: Judges Cohen, Crucitti, Manley and Tomasi. The others and Magistrate Zander will meet with the committee on Wednesday, February 20^th. aAso, due to today’s weather the confirmation hearing for Judge Griffin was cancelled and will take place next week. The schedule for next week is in flux right now and will not be available until Monday perhaps.

I just returned from a House Judiciary Committee hearing where Court Administrator Bob Greemore presented some requests from the judicial branch to the committee. Family division practitioners should be aware that one of the changes being presented would give the court the authority to revisit the reduced filing fee paid along with a stipulation. Apparently there is some track record that, after parties file with a stipulation and pay the reduced fee, the stip falls apart and the matter becomes contested. In those cases, with the proposed changes, the court can impose the difference in fees prior to the issuance of a final order.

The rest of the day will be pretty quiet as many afternoon committee meetings have been canceled and most legislators from the southern counties are gone; many in fact left last night. Have a nice weekend; thanks for reading.

Thursday, February 7, 2013

I had hoped to report on the Senate Judiciary Committee action on S. 31 but the committee got hung up on two other bills and never got to it. It’s been delayed until next Tuesday.

Tomorrow the full Senate should pass the budget adjustment act. The senate version also contains the $2,000,000 the judiciary requested.

In both today’s House and Senate calendars this appeared:

CROSSOVER DEADLINES

The following bill reporting deadlines are established for the 2013 session:

(1) From the standing committee of last reference, excluding the

Committees on Appropriations and Ways and Means, all House bills must be

reported out of committee on or before March 15, 2013.

(2) House bills referred pursuant to House Rule 35a, must be reported out

of the Committees on Appropriations and Ways and Means on or before March

22, 2013.

CROSSOVER DEADLINES

The following bill reporting deadlines are established for the 2013 session:

(1) From the standing committee of last reference (excluding the

Committees on Appropriations and Finance), all Senate bills must be reported

out of committee on or before March 15, 2013.

(2) Senate bills referred pursuant to Senate Rule 31, must be reported out of

the Committees on Appropriations and Finance on or before March 22, 2013.

 (3) These deadlines may be waived for any bill or committee only by

consent given by the Committee on Rules.

We’re still awaiting the introduction of some bills, for example, the updated foreclosure mediation bill and now we face a deadline that’s about a month away! There will either have to be a number of exemptions or plenty of unfinished work for January 2014!

Thanks for reading. Stay safe in the storm!

Wednesday, February 6, 2013

I need to update the comment I made yesterday about the 5% surcharge on filing fees. That surcharge is in effect until next year. Although we’ve referred to it as a three year surcharge stemming from judicial restructuring in 2010, in fact, the surcharge effective date was delayed into 2011. I apologize for any confusion. Next year the judiciary will be back in its normal three year rotation to review fees and will recommend extending the surcharge and build it into the base fee structure.

The retention hearing schedule is starting to firm up. judges will be in for interviews on two evenings beginning at 5PM. The first hearing will be next Tuesday, February 5^th in the Ethan Allen Room. So far, Judges Cohen and Manley are confirmed for that night. The second hearing will be on Thursday, February 20^th in room 10. So far only Judge Gerety is scheduled. I’ll post an update as soon as I have more detail. The public hearing (which will cover all judges and the magistrate) will be on Tuesday, February 26^th also at 5PM. I expect that will be in room 11.

Tomorrow the Senate Judiciary Committee will return to S. 31 and attempt to mark up and vote out the bill. I’ll report back later in the day tomorrow. As always, thaks for reading.

Tuesday, February 5, 2013

Last Friday morning Penny Benelli and Lindsey Huddle appeared before the Senate Judiciary Committee to voice opposition to S.31. The committee requested that they suggest amendments or changes to the bill as introduced and get those changes to legislative counsel by today. I haven’t seen anything yet. the next hearing on this bill is Thursday. Their objections were that, in looking at the history of the family where money was flowing from, say, one set of parents to the couple that to exclude any of that history would lead to an unfair outcome. But they concede that third parties should not have to be subject to discovery of a last will & testaments and revocable trusts.

 

This morning I attended a hearing in the House Judiciary Committee where the Administrative Judge, the Court Administrator and his deputy presented some legislative changes. They are seeking a cleanup of some outdated sections on Chapter 17 in Title 4; an amendment to the USSJEA passed a few years ago; and repealing of a mandate that probate offices be kept in the four southern districts in which one of the two courts was closed. This change wouldn’t prevent those offices from remaining open but would simply remove the mandate and make it optional. The committee spent some time discussing juror questionnaires and concluded that any changes were best left to rulemaking.

 

Later today the same witnesses will return to discuss fees with the committee. Also, tomorrow the Ways and Means Committee will hear from the court about fees. I’ve learned that the court will ask that the 5% surcharge that was imposed on filing fees as part of judicial restructuring in 2010 be made permanent.

Thursday, January 31, 2013

The Senate has appointed its members to the Joint Judicial Retention  Committee. The members are: Senators Benning, Flory, Galbraith, and Nitka. This biennium chairmanship moves back to the House and Rep. Tom Koch is the new chair. Hearings on the judges should begin in early February although the calendar is not yet set. As soon as it becomes available I’ll post it here.

Yesterday Justice Dooley and Court Administrator Bob Greemore made a presentation to the Senate Appropriations Committee on the budget request of $2 million in the budget adjustment bill. Recall that the House passed bill contains that money. There seemed to be no opposition to the request in committee. In fact, the bulk of the hearing focused on an inter-departmental transfer of some $25,000; totally irrelevant to the budget deficit issue. It looks as though things should move smoothly for the judiciary. Fingers crossed.

Tomorrow morning the Senate Judiciary Committee will return to S. 31, the “Billings” bill. Two family practitioners with objections to the bill will be in to testify in opposition to the bill as written. I’ll report after that hearing.

Don’t forget the Bill Watch page on our website:
https://www.vtbar.org/UserFiles/files/LEGISLATIVE%20BILLWATCH/Bill%20Watch.pdf

 

Book mark that page so you can return to either read a bill or check its current status.

 

Thanks for reading.

 

Wednesday January 30, 2013

This morning Uniform Law Commissioner Rich Cassidy testified before the House Judiciary Committee on the Uniform Collateral Consequences of Conviction Act, a bill that has yet to be introduced. Rich chaired the ULC committee that drafted the act. This will be the second go round for the UCCCA, the first version of which failed to pass the Senate in the last session. His testimony was really just background for the committee to begin to understand the issue. There is an estimated 35,000 statutes across the country that may apply post conviction. There may be as many as 300 statutes that contain consequences of conviction in Vermont. He also said that some estimate that 100,000 Vermonters may have a conviction in their past.

So what would this bill do? It would require the collection and updating of the list of collateral consequences. It requires notice to a defendant of the concept of collateral consequences that may be out there. it regulates the effect of collateral consequences from state to state and it would provide limited relief from some consequences.

As we know some consequences of a conviction are automatic (collateral sanctions) while others are discretionary (disqualifications). As I understand it the bill would make all sanctions discretionary and provide states specific grounds to exercise that discretion.

Check out this website for the list of consequences in Vermont, one of twelve states to have been researched to date: http://www.abacollateralconsequences.org/

Also, if you haven’t seen it yet, we created a Bill Watch page on our website where you can find those bills that we are tracking. Here’s the link:

https://www.vtbar.org/UserFiles/files/LEGISLATIVE%20BILLWATCH/Bill%20Watch.pdf

Book mark that page so you can return to either read a bill to check its current status.

Thanks for reading.

 

Friday, January 25, 2013

A couple of quick things this Friday afternoon. First, Lisa Maxfield here at the VBA has added a Bill Watch link on the VBA homepage. If you scroll to the bottom and select the second bullet under Explore you’ll see a spreadsheet of those bills that I am following.

Earlier today the Speaker of the House appointed the House’s four members of the Judicial Retention Committee. They are: Tom Koch, Linda Waite-Simpson; Suzi Wizowaty; and Chip Conquest. All four are members of the House Judiciary Committee.

Have a great weekend and, as always, thanks for reading.

Wednesday January 23, 2013

So, after a week without posting I’m back. Montreal was great as always and we didn’t really miss much under the golden dome when we were away. What is remarkable was that on Friday of last week the House Appropriations Committee voted out H. 47, the budget adjustment bill. It’s a midyear correction to the state’s spending. Fortunately for the judiciary the bill includes $2 million dollars that the judiciary needed. The bill passed the House on second reading yesterday on a voice cote and final action will occur this afternoon. let’s hope the funding for the courts stays in at this level; it’ll really alleviate a number of problems.

Yesterday the House Judiciary Committee heard testimony on H.1, a bill that would relieve the superior court clerks from the requirement of maintaining a separate book of judgments. Actually, I never knew that there was such a book. The testimony so far points to the requirement being somewhat redundant and of little value. Kathy Hobart, Clerk of the Lamoille Superior Court, offered that her survey of other clerks showed that they are almost never asked to produce the book. The Committee will return to the bill tomorrow afternoon and, barring any opposition, will likely vote it out and send it to the floor for action.

While that was happening the Senate Judiciary Committee began work on S. 1, a bill that would require a court to consider the approximate financial cost of available sentences prior to its issuing a sentence. More testimony needs to be taken and at this point I’m not certain where the bill may go.

This morning the Senate Judiciary Committee heard from Susan Murray and Mark Langan on S. 31, the bill that would overturn the Billings v Billings case. Susan was pretty clear about her and other family practitioners’ concerns about the case itself. She told the committee that the case created evidence problems, cost problems to the parties, to third parties and to the court itself, and family relationship problems. Mark spoke from the perspective of an estate planner whose clients may want protection from disclosure in some cases. they certainly don’t want to be subpoenaed to court in a divorce action.  The committee seems disposed to move the bill even though there may be some issue with the language about civil and criminal penalties for a party’s acting in bad faith. They will return to S. 31 on Friday, February 1^st in hopes of marking it up and voting it out. If any of you have concerns that this bill “goes too far” please let me know ASAP so I can get you before the committee next Friday. I’ll be cutting this paragraph and sending it out to both the Family Law and Probate and Estate Section list serves.

Finally, on a non legislative front, the VBA Board is looking into developing a protocol for dealing with the “medium” sized case, whether you define that at $50K or $75K or some other number. The Board is setting up a study committee to begin discussing how best to handle these types of cases to move them through the system at an affordable cost and timeline for litigants. Please let me know if you have any input on this topic and/or if you want to be involved in the working group.

As always, thanks for reading.

Friday, January 11, 2013

You have probably already read about the shakeup in committee chairmanships and assignments in the Vermont Senate. Dick Sears will remain as Chair of Judiciary but there are two new members - Joe Benning and Tim Ashe - replacing Diane Snelling and long time member Ann Cummings. In Appropriations, Sally Fox will replace Vince Illuzzi so at least one member of that committee will be a lawyer. The full list of committee memberships can be found in the Journal of the Senate dated January 10.

I sat in on House Judiciary this morning for two sessions. The first was Administrative Judge Amy Davenport briefing the three new members of the committee on the structure of the judicial system. After the committee returned from the floor session the entire committee heard from the Chief Justice, Judge Davenport again, Court Administrator Bob Greemore, and deputy Court Administrator Pat Gabel. All discussed the budget shortfall, the failed case management computer project, laws enacted last year, some issues for committee consideration this year,

Today is a typical opening day for one of the most important committees for our issues. I spend the majority of my time in the House and Senate Judiciary Committees. I will be invited soon to give our overview of what the VBA is, what we advocate for (or against) and how we can work together. Of course I’ll report on that when it happens.

Have a great weekend and thanks for reading.

Thursday January 10, 2013

Late yesterday just before the Speaker adjourned the House for the day he announced that he was going to appoint “non standing” committees as soon as possible. Although he didn’t specify I hope he was including the Judicial Retention Committee and the Judicial Nominating Board. As to the latter, the Bar’s election process is now over and results should be available soon. the Governor has already re-appointed the same two members from last session- Kathy Pellett and Joseph Watson. The House and Senate will now each appoint 3 members.

The Judicial Retention Committee is made up of four members from each chamber. The sooner they get going the better as there are seven judges and one magistrate up for retention. They are:

Superior Judges:

        Cohen, William

        Crucitti, James

        Gerety, Robert

        Griffin, Kevin

        Manley, Kathleen

        Tomasi, Timothy

        Zonay, Thomas

 

Magistrates

      Zander, Barbara

Tomorrow morning the House Judiciary Committee will host the CJ, the Administrative Judge and the Court Administrator in a judicial branch overview.

Thanks for reading.

Wednesday January 9, 2013 Part 2

The House just recessed its morning session after the Speaker made his committee assignments. The House Appropriations Committee remains virtually unchanged from last year with Peter Fagan replacing retired representative Joe Acinapura. The House Judiciary Committee, the most important committee for us, will have three new members. Here’s its lineup:

Bill Lippert, Chair

Maxine Grad, Vice Chair

Tom Koch, Ranking Member

Chip Conquest (new)

Andy Donaghy

Michelle Fay (new)

Charles Goodwin (new)

Richard Marek

Vicki Strong

Linda Waite-Simpson

Suzi Wizowaty

Wednesday, January 9, 2013

So the session starts today with mostly ceremony as the House elects its Speaker and House and Senate members are sworn in. Since there is no leadership contest in either chamber, committee assignments could quickly follow. Then the work of the session will begin. But even though the gavel has yet to fall, the legislature’s website has been listing bills for introduction. Among those, as of this morning, are two of interest if perhaps only to members engaged in a property law practice.

The first, H.3, proposes to repeal the requirement that an applicant for a potable water supply or wastewater permit notify affected property owners when an isolation distance surrounding the applicant’s proposed water supply or wastewater system extends onto property other than the property on which the proposed system will be located.

 

H. 7 proposes to give unit owners of common interest communities the ability to demand arbitration to challenge provisions, application, or enforcement of bylaws or rules of a governing association.

 

I don’t know the motivation for either bill but am confident that H. 7 introduced by House Judiciary Chair Bill Lippert will certainly get a hearing.

 

After the constitutional officers are sworn in tomorrow and the Governor gives his inaugural remarks the committees will get down to work. I’ll continue to update you as things unfold. As always, thanks for reading.

Thursday, January 3, 2013

 

 

The Chief Justice made a presentation to the House Judiciary Committee this afternoon seeking either a supplemental appropriation of $2 million OR the ability to spread this shortfall out over two fiscal years. The letter reprinted below was given to the committee. It explains the problem and the limitations that the court faces in making even greater changes.

 

 

TO: Martha Heath, Chair of House Committee on Appropriations

         Members of House Committee on Appropriations

 

FROM:  Robert Greemore, CourtAdministrator 

     

DATE:    January 3, 2013

RE:           FY 2013 Budget Adjustment Request

 

The Judiciary finished FY 2012 unable to pay about $2 million in obligations. This coupled with an ongoing operational deficit of about $500,000 would leave the Judiciary about $2.5 million short of paying obligations in FY 2013.

 

The principal reason for the inability to meet all obligations is the fact that the Judiciary did not realize enough employee turnovers to meet the vacancy savings target for FY 2012 by almost $1.5 million.  Also exacerbating the problem was the increase in security costs of $420,000 (more judge bench time contributed to this increase), increased demand for reimbursement of expenses for Guardians ad Litem by $25,000 (a 40% increase in CHINS filings contributed to this increase), increased unemployment compensation costs by $40,000, increased cost in labor negotiations by $25,000 and increased costs in serving papers in relief from abuse and other domestic issues by $12,000.  The vacancy savings rate contained in the FY 2012 budget was set using historical trend levels. This level was not attained probably due to the acceleration of employee turnovers caused by the retirement incentives offered during the restructuring efforts in previous years.

 

During our restructuring efforts, we reduced the number of employees working in the Judiciary by over 10%. Part of the justification for the size of reduction was the plan to have begun the implementation of case management technology during 2013.  This implementation was not realized.  We are still providing services to litigants in a paper dominated world with 40 fewer employees than we had to accomplish the same work.

As we looked for options to mitigate the problem, we had to eliminate most of the traditional methods to reduce spending.

 

•          Could not increase the number of furlough days since we had reached the maximum days authorized by statute.

•          The time to make monetary request of the Legislature had elapsed.

•          Layoffs would not have generated the money needed and the number of layoffs that would be needed would approach one third of all existing positions.

Other possible methods to control cost in the Judiciary had been rejected in the restructuring effort such as:

•          Closing courts.

•          Changing venue requirements.

•          Reducing the number of probate judges.

 

As a result of this analysis, there was no place to reduce spending within the timeframe of FY 2012. We began a hiring freeze reviewing every vacancy before approving a recruitment, but savings from this action will mostly be realized in 2013.

The Supreme Court is reducing spending in FY 2013 to help mitigate the spending issues. The Court has approved spending reductions of about $soo,ooo in FY 2013 which will lead to about $8oo,ooo in FY 2014. The Court has under consideration other actions depending upon budget decisions made during the upcoming Legislative session, but each will reduce staffing, curtailing further the delivery of services to Vermonters.

The Court is requesting $2 million to be included in the FY 2013 Budget Adjustment Act or the ability to manage the budget issue over 2 to 3 fiscal years.  Ifthe latter, then the Court would like the assistance of the Administration and the Legislature to add $1 million in FY2013 budget adjustment and another $1 million over the target in FY2014 budget. This would allow the Judiciary to mitigate the budget issue from FY2012 and use the spending reductions to curb ongoing spending demands to meet budget targets in the future.