Thursday, February 21, 2013

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:

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 4th to fill out the remainder of the term of Judge Zimmerman, which expires on March 31st. 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

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

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 20th. 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

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:


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.


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

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 5th in the Ethan Allen Room. So far, Judges Cohen and Manley are confirmed for that night. The second hearing will be on Thursday, February 20th 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 26th 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

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.