Thursday, May 8, 2014

Here is a quick summary of where we are as of early Thursday. I’ve already reported that the minor guardianship bill (H.581) has passed. This week H. 88, the bill dealing with parent child contact between a child of a sexual assault and an offender has passed. The House concurred with the Senate version of the bill, thanks in large part to the testimony of Family Law Section Chair Penny Benelli and Kate Kennedy.

Although the appropriations conference committee has not yet signed off on a deal, as of right now funding for the judiciary, the defender general and Vermont Legal Aid appear to be secure. There doesn’t appear to be any disagreement between the conferees on those numbers. But, as of yesterday there was a new $2.2 million hole in the budget. But without resolution of the tax bill, it’s too early to close on the spending side. Adjournment Saturday? Maybe not.

Yesterday the House and Senate agreed on H. 497, the open meeting bill. Our Municipal Law Section had objections to language in the House passed version that infringed upon the right to confidential attorney client conversations, restricting  when the could occur in executive session. Kudos again to Chuck Storrow, Dan Richardson and Peg Flory. But I need to acknowledge the efforts many of our Municipal Law Section members made in contacting senators on the Government Operations Committee. It was interesting to hear some of them say things in committee that sounded very much like the emails you wrote to them! Even though I’ve been at this a long time, I must say that I was surprised to find the VBA arguing with the ACLU to protect the attorney client privilege! I still don’t understand why they took the position they did.

As of now, the Uniform Collateral Consequences of Conviction bill, H. 413, has passed both chambers and appears ready with one small change. The House yesterday rolled back the effective date to July 1, 2016 from the earlier Senate date of July 1, 2015. The Senate concurred in the House changes. This makes Vermont the first state to adopt this bill, drafted by a Uniform Law Commission committee headed by Rich Cassidy. Congratulations to Rich as he moves towards becoming President of the ULC!
Finally the House and Senate agreed on S. 263, the bill that would allow assistant judges to sit with magistrates in family division in all but child support contempt proceedings. What I found interesting is that it seems to have come out of the House Judiciary Committee with no testimony and was used as a vehicle for another measure to require rulemaking for ethical standards for hearing officers. The bill came out of committee, moved through the House and Senate Wednesday and was finalized today. Such is the end of the session!

Unless there is a last minute hiccup, this may be my last report of the session. Please contact me if I have not reported on something you think I should have; I’ll try to get you the most current info. But in the meantime, I’m waiting to hear that final gavel fall! Enjoy spring and thanks for reading.

Wednesday, April 30, 2014

For those of you in the Municipal Law Section, you’ve been reading emails about H. 497, the open meeting bill which affects executive sessions. In the House passed bill, going into executive session to receive legal advice had two preconditions. The Section disagreed and was successful in amending the bill in committee. After three hearings in the Senate Government Operations Committee, all five members finally supported the language we’ve been proposing- almost! The committee agreed last night to add the rewritten exemption (taking out rendition and using “providing”, I believe; sorry I don’t have the language in front of me). BUT, they added it as a sub F which makes it subject to the preliminary finding re: premature disclosure. An independent sub (11) was not going to win approval.

Chuck Storrow presented the new language and the compromise placement of that language. Dan Richardson answered numerous questions and persuaded the committee by using concrete examples of how this works in the real world. AND, Sen. Peg Flory, who I reached out to earlier in the day came to the hearing and helped in convincing at least two committee members.

Now, none of this would have happened without the contacts Section members made over the last week. I know of contacts between members of this Section and Senators Ayer and McAllister. They were the first two to declare support. Sen. French of Rutland County came around after digesting all the comments. Sen. Pollina of Washington County reluctantly was a yes. The last holdout was the committee chair Jeannette White of Windham County. She was a yes last night but I don’t think her heart’s really in it. So where do we go from here?

The committee has not voted the bill out yet. Along with our amendment there were others. A new clean draft will need to be done by legislative counsel; presented to the committee for a vote and then the bill heads to the floor for the full Senate to consider.

If it passes, it has to go back to the House; the House can either concur or refuse to concur and request a committee of conference. If we can convince the members of the House Government Operations Committee that this amendment is an improvement to the house passed bill, we may be able to get concurrence. If not, the 3 appointees from the house along with 3 from the Senate will write the final bill.

So, even though adjournment is scheduled for May 10^th, there remains a lot to be done in that short time.

If you had a conversation and/or received a responsive email from one of the members you were in touch with, I’d suggest a follow up thanking that senator for his or her efforts. As soon as the final version is voted on and posted I’ll get it out to you; then a thank you would be in order. Again, everyone, thank you for rallying for this issue. Although it’s not 100% of what you wanted, I think you’ve improved the bill and helped protect the attorney-client privilege.

Today the Senate should be advancing H. 88, the bill concerning parent child contact when a child is conceived as a result of a sexual assault. The House passed a very broad bill that raised concerns among members of our Family Law Section. The Senate Judiciary Committee’s bill is very different. It can be read in today’s Senate calendar:

http://www.leg.state.vt.us/docs/2014/calendar/sc140430.pdf (see page 1899).

Finally, this morning the Senate Judiciary Committee voted out H. 413, the uniform collateral consequences of conviction bill. The bill was amended in two places, the most significant being the limitation to non listed crimes. Listed crimes which number I think 30 or 31 are the most heinous crimes. Adding that limitation was the only way to get the Chairman’s support. The bill may come up for full senate action as early as Friday. Although some day next week is more likely.

The minor guardianship bill, H. 581, passed the senate with amendments and is now on the House Notice Calendar for full house concurrence or to go to a committee of conference. This may happen tomorrow.

I’ll keep you posted as these matters settle. Thanks for reading. 

Wednesday, April 16, 2014

Yes, I know it’s been too long since I reported. But I’ve been traveling a bit on VBA and ABA business and have not been in the statehouse that much in the last two weeks. As you know, the work of the first two months of the session moved from the House to the Senate. This morning the Senate Judiciary Committee took testimony on two bills that we have been following. The first, H. 413, is the uniform collateral consequences of conviction bill. Rich Cassidy took the committee through the bill and there seemed to be support for it. Judge Davenport and John Treadwell, chief of the AG’s criminal division, supported the bill with some small changes. It appears the committee will return to this issue next week and vote it out. Then it’ll be up to the House to either concur or decline and request a committee of conference. I doubt the changes will be that dramatic that consensus cannot be reached.

Right after that the committee heard from Penny Benelli and Kate Kennedy on H. 88, the bill that would vest primary parental rights in a victim of sexual assault. They both pointed out constitutional issues as well as the lack of counsel in the hearing as designed by the House. Issues concerning the best interest of the child standard as well as the interplay between the H. 88 hearing and TPR hearings left the committee with more questions than answers. Legislative counsel was directed to work up a new draft for the committee to review next week. Clearly the committee is leaning towards protecting a victim of “stranger” sexual assault and cutting off the rights of the offender. But how this affects situations where there is or was an ongoing relationship, even a marriage, needs more thought. Whatever the Senate does will send the bill into a conference committee with the House.

Later today, Dan Richardson will address the Senate Government Operations Committee on H. 497, the open meeting law bill. There is an issue in Sec 3 of the bill which amends 1 VSA 313 (Executive Sessions) by adding a new sub 10, which in (E) seems to encroach upon the attorney client relationship.

Tomorrow the minor guardianship bill is back before Senate Judiciary to work out some remaining disagreements between probate practitioners in Franklin- Grand Isle Counties and Administrative Judge Davenport.

All of this is happening in what should be the penultimate week of senate committee meetings. They’ve been told to cease regular meetings after Friday April 25^th. There’s much to be done yet and too much will get left on the table if that happens. Adjournment could come as early as Saturday 3^rd although I think the following Tuesday or Wednesday is a better bet.

As always, thanks for reading. 

Tuesday, March 25, 2014

So, my last report was on February 28^th, the day the general assembly began their one week Town Meeting break. Although I said I’d report again the week of the 18^th, I did not do that. So, in  my defense it was a short week- on Thursday and Friday I was at the VBA Mid Year Meeting. Because of the size of the calendars in both chambers right after the crossover deadline most of the week was spent in floor debate in order to move bills. In fact, the House Judiciary Committee made the decision to not schedule any witnesses other than members of the legislative council. That really helped people like me who need to be elsewhere.

This week started off with news that the House Appropriations Committee has released the FY 15 budget, which, does contain $50,000 for Vermont Legal Aid to continue to offer foreclosure defense services. You may remember that funding for that work came from mortgage foreclosure settlement funds the state received. Those funds run out on June 30^th. it’s only about a fifth of what is being lost but at least it’s something and, given, this year’s budget challenges I’m sure VLA is happy to get it. Now the challenge is to hold it in the Senate. The budget and the tax bills should be up for floor debate Thursday and Friday of this week. That will no doubt preempt any house committee time later this week.

As I continued to write during the first two months of the session I followed bills mainly in the House Judiciary Committee. Well, now those bills are in the Senate Judiciary Committee where I will be camped out more than anywhere else for the remainder of the session. Actually, on Thursday the committee will take its first look at the guardianship of minors bill, H. 581. There has been some input into the bill sent to the committee by the Probate Bench-Bar committee of the Franklin Grand Isle Bar Association. Judge Davenport responded to those points by letter this morning. For those of you in the Family Section and the Probate and Trust Section, Amber Barber sent it to your list serve. If anyone else who has not received it wants a copy, just email me and I’ll forward it to you. the committee has set aside all Thursday morning to work on the bill.

There are a couple of other things in the works. We have been asked to comment on  sections of the economic development bill (H 736) in House Commerce that deal with computer crimes. We’ve also asked to be heard on H. 497, a bill dealing with open meetings. That bill passed the House and is in Senate Government Operations. It has some language of interest to the members of the Municipal Law Section about legal advice to public bodies and when an executive session is permissible. We don’t have a schedule for that bill yet but we’ve asked to be on the witness list.

That pretty much brings you up to date. I’m waiting to hear more detail about how the budget writers treated the Judiciary and the Office of the Defender General. I may add to this post if I hear or will report later this week. As always, thanks for reading. 

Friday, February 28, 2014

So, we’re already at the Town Meeting break; the general assembly returns on Tuesday, March 11^th. Crossover is that Friday the 14^th; that means a hectic week in committees to get bills out. I will not be here that week as I’ll be attending the Bar Leadership Institute at the ABA in Chicago; I hope it warms up out there by then.

This week was pretty busy too as they move towards the break. The judicial retention process wrapped un on Wednesday evening with unanimous votes to retain all six Superior Judges. The joint assembly to vote on retention will be held in the third week of March. Again, I spent most of my time in the House Judiciary Committee as they moved towards completing work on a number of bills I have been following, have testified on, or some of you have testified on. They are H. 413, the uniform collateral consequences of conviction bill; H. 642, the bill eliminating a right jury trial for traffic appeals; H. 618, the juvenile jurisdiction bill for 16 and 17 year olds charged with crimes; and H. 866, a bill dealing with judicial nominating. This was just introduced and is now in the committee for review and possible action by March 14^th. It makes some minor changes to the nominating process and a couple significant ones. First, it would raise the standard to “best “qualified in order for a candidate’s name to go to the governor. It would also add judicial bureau hearing officers to the people that must go through the judicial board nominating process.

Some of you may remember a group the VBA Board created some years ago to work on judicial qualifications. The committee recommended a “well qualified” standard and did some work on redefining the qualifications presently in the statute. Well this bill incorporates those definitions and uses “best qualified” instead of “well”. The VBA has always supported these changes. I was there for the discussion and, since I will be at the ABA when the committee plans to discuss the bill, I testified in support of that and other parts of it. The VBA Board has not taken a position on the question of whether judicial bureau hearing officers need to go through the JNB process; the committee chair thinks they should, in keeping with the spirit of a “unified judiciary”.

The Senate has passed H. 263, the bill that would authorize assistant judges to sit with magistrates in child support contempt proceedings. Also, the House passed H. 497 relating to the open meeting law. It may be interesting to look at Section 3, amending 1 VSA 313(b). It reads:

(b) A public body may not hold an executive session except to consider one or more of the following:

(10) After making a specific finding that premature general public knowledge would place the public body or a person involved at a substantial disadvantage:

(A) Contracts;

(B) Labor relations agreements with employees;

(C) Arbitration or mediation;

(D) Grievances, other than tax grievances; or

(E) Professional legal advice in connection with pending or imminent civil litigation or a prosecution, to which the public body is or may be a party.

Of course I eliminated #s 1-9 as I wanted to direct your attention to #10. Query: is there a good reason to limit legal advice to a pending or imminent action? Would the public body in any other time then be subject to discussions with counsel in an open meeting? We’ll see where this goes when the Senate takes it up after crossover.

Other than working with Eric Avildsen of Vermont Legal Aid on his budget issues and helping out the federal judicial nominating  commission, that’s pretty much been my week. Thanks for reading. I’ll be reporting again the week of March 18.

Thursday, February 20, 2014

The House Judiciary Committee is continuing its work on the collateral consequences bill (H 413) as well as the juvenile jurisdiction bill (H 618). Both are back on the table for discussion on Friday. I’ve been asked to tell the committee that the VBA Board of Managers had already endorsed the collateral consequences language back in 2010. As far as the juvenile jurisdiction bill goes, I’m not certain it has the support to emerge from the committee even with the amendments. Obviously the states attorneys don’t like and four have developed their own protocols to achieve much of the same results as the bill would achieve if enacted, at least according to them. One committee member pointed out that this is an election year and one or more states attorneys may not be in office next year and their protocols may leave with them.

Tomorrow the Senate Judiciary Committee has scheduled time to mark up and vote on S. 263, the bill I discussed yesterday concerning extending authority to assistant judges to sit with magistrates on child support contempt cases. it will probably have enough support to come out to the floor.

Last night was the public hearing on the retention of the six judges whose terms expire on March 31^st. only Jackie Fletcher, Court Manager for the Environmental Division testified in support of Judge Walsh. No other witnesses appeared. However, a couple of letters and emails were received by the committee. Tow of them concerned Judge Maley; both related to the wind case on Lowell Mountain. Parties to the civil case complained about his handling of the matter. But with the case still pending (almost two and half years after he made his rulings) he was hesitant to go into too much detail about the case. The second email concerned the criminal case that resulted in the conviction of some trespassers in the area where Green Mountain Power was attempting to erect towers. He defended his rulings in that jury trial and told the committee he (and the judge that handled pre trial matters) had been upheld by the Supreme Court.

The final communication was about a serious and difficult homicide trial which prompted the relative of the victim (at least I believe it was from a relative) to write that, during the trial, at various bench conferences the attorneys and the judge could be seen and heard to be laughing. Judge Davenport. Who was in attendance, explained that sometimes “lowering the temperature” helped relieve everyone’s stress. The committee “got it”, especially when she analogized it to conference committee tensions in the waning days of a session. But it got me to think that maybe we aren’t sensitive to what others, not familiar with courts, must think when they see attorneys advocate and argue and then seem to be “enjoying” themselves along with a judge. It’s just something to think about I guess.

Anyway, as always, thanks for reading. 

Wednesday, February 19, 2014

Things got off to a bit of a slow start this week with H. 413, collateral consequences our only bill up yesterday. The House Judiciary Committee has done a good job of hearing from all parties with an interest in the bill. There is anew draft version which the committee should soon be reviewing. The only remaining issue I see if where the database or collection of collateral consequences will be housed and who will be responsible for updating it. I think when those issues are resolved the bill could be on its way to the house floor for a vote. The VBA Board of Managers, by the way, supported this bill before the ABA House of Delegates back in January 2010.

So far today I’ve had the opportunity to visit the Senate Judiciary Committee for the first time this session. Since they have mainly work on criminal law related issues, and since those issues are well covered by the AGs, the States Attorneys and the Office of the Defender General, I usually don’t follow those bills. But today the committee began work on S. 263, the bill that would allow assistant judges to sit with magistrates in child support contempt proceedings. Bennington AJ Jim Colvin testified by phone in favor of the bill. Pat Gabel, Court Administrator, spoke to the committee about the availability of assistant judges, who are able to decide when and in which cases or courts they choose to sit. I was asked to testify even though I was not on the witness list and did my best to summarize the 20 comments I received from members of our Family Law Section back in December. I submitted those comments from which I redacted the names of the writers. I think the committee plans to return to this bill on Friday.

This afternoon, House Judiciary will return to H. 618, the bill relating to exclusive jurisdiction over delinquency proceedings by the Family Division of the Superior Court. I’m still not sure where this one will go if it moves at all. Tonight, of course, is the public hearing on the retention of six superior court judges. There has been a lot of press inviting members of the public to testify; let’s see who shows up. More tomorrow on the outcome of tonight.

Thanks for reading. 

Thursday, February 13, 2014

So it’s been over a week since my last post and, yes, I have heard from a few of you about whether I was AWOL. I can assure you I have been here and covering committees of interest. Here a summary of the last week’s activities. Last Thursday I attended a House Judiciary Committee hearing on H. 618, the bill that would require all criminal charges against kids under 18 be brought in Family Division. As introduced the bill does not allow transfer of those cases to the Criminal Division. Immediately the committee talked about putting those transfer provisions back in the bill. This bill would really undo the work of a special session of the general assembly after the Essex killing involving defendants Hamlin and Savage. Probably some of you remember that.

I also got involved in H. 795, a bill to change some of the procedures to collect restitution from criminal defendants. This is not so much a VBA concern bu,t as Chair of the state’s Victims Compensation Board, it is an issue I work on. Actually, this morning we made our presentation to the House Appropriations Committee.

Last Friday I was out of the building at VLS participating in more interviews for our next Poverty Law Fellow. We’re down to a small group of incredibly talented young lawyers, any one of whom would serve our veteran population very well. making a final decision between these candidates will not be easy.

Tuesday morning started again in House Judiciary, again on the restitution bill; the afternoon was devoted to H. 413, the collateral consequences of conviction bill. This time Chittenden States Attorney TJ Donovan weighed in supporting it. Other witnesses agreed. The bill seems to be moving toward completion and floor action soon. yesterday House Judiciary worked towards completion also on S. 119, the amending perpetual conservation easements bill as well as the juvenile jurisdiction bill, H. 618. So, for the most part I have been following the work of House Judiciary almost exclusively. So, after crossover ( Friday, March 14^th) my attention will turn to the Senate Judiciary Committee which will begin work on the bills the House has sent over.

There were two events of interest yesterday. First, the Chief Justice, Justice Dooley, Court Administrator Patricia Gabel, and the judiciary’s new financial person, Matt Rivin, made their presentation to the House Appropriations Committee. The testimony came minutes after the House adopted the Senate’s changes to the budget adjustment bill. That bill, as it came back from the Senate, contained a supplemental appropriation of about $650,000 for the judicial branch.  The Chief spoke at length about the judicial advisory council that the court convened to address governance issues within the branch. The governor's recommended budget contains a 3.1% or $1.267 million increase in the base.

I was surprised when one committee member said he felt like “we’re throwing money down the drain”. He felt as though “trust was broken” and he wants to see what the court has identified ans the problem and how it will fix it. Thinking that that was the feeling of a single member of the committee I mentioned to another member this morning that I was shocked by that and was told “the whole committee feels that way”. OUCH! Clearly a lot needs to be done by the judicial branch. I don’t envy the work of the appropriations committees this year.

Last evening the three remaining judges up for retention appeared before the retention committee. Judge Nancy Corsones was the first to be interviewed. Her surveys six years ago spoke to her need to “slow down” and she took that advice. This year’s surveys contained a few negative comments (as almost every judge has seen); she responded to those. Her love of her job was evident and the was expertise she has developed in family court. She spoke to the drug problem, to the decline in decorum among the public in the courtroom and addressed issue of the mental health docket after Tropical Storm Irene.

Judge Hayes was next and said that this process of retention is “painful but valuable”. In that, she agreed with Judge Corsones. This year her surveys were quite positive and it appears that the issues she faced six years ago have been corrected. Since 2008, she has worked on lessening the use of humor in the courtroom, lest it be misunderstood; she has worked on being more respectful of lawyers and not interrupting them. In response to a comment that she didn’t appear to  know the law, she offered that may have been during a tenure in the Civil Division, where she had not sat for some time. For her 11 years on the bench she has spent 7 in Family Division.

Judge Suntag was up last and spoke to the changes in his survey results from 12 years earlier. He discussed his teaching around the country and responded to committee questions about his local rule about plea agreements in the criminal docket. He also spoke to the Integrated Domestic Violence Docket he has instituted in Windham County. This grant supported effort should reduce recidivism, as results from other parts of the country have shown. Given the focus of this session on opiate and prescription drug abuse, the committee was very interested in his approach and in Judge Corsones’ comments about the effects of drugs in juvenile, family and criminal cases.

Well, I think I’m caught up. Sorry for the delay in keeping you informed. As always, let me know what you think about any of these issues and/or anything I may have missed which you want to hear about. Until my next post, thanks for reading. 

Wednesday, February 5, 2014

This was quite an interesting morning in the House Judiciary Committee as they took their first look at three new bills: H. 731, H. 545, and H. 413. I introduced all three in yesterday’s post. Rep. Kristina Michelson spoke to the bills he introduced, H. 731, and why it would preserve judicial resources. Her stated goal is to give a small claims defendant the right to ask for appointment of a specially assigned judicial officer (judge or attorney) and apply the Rules of Evidence to the hearing. The only way the Rules would apply under current law is to request a jury trial. Justice Crawford was there and commented, from his experience as a trial judge, that a relaxed hearsay rule is really what allows the small claims court to function. Although, per Justice Crawford, there may be times when the Rules should apply, the court operates on evidence people would use in conducting the affairs of daily life.

This bill was followed by H. 545, which would raise the jurisdictional limit of small claims actions to $10,000. The sponsor of the bill offered that jurisdictional limits around the country range from $2500 to $15000, with 9 states having a $10000 limit. Vermont went from $3500 to the present $5000 limit in 2007. She argued that increasing the limit would create more access for plaintiffs. Jean Murray of Vermont Legal Aid spoke to the credit card companies’ use of small claims against mostly unrepresented defendants. Justice Crawford raised the issue of loss of revenue in filing fees. He also spoke to quicker judgments for “debt buyers” or consolidators. He felt the usual “mom and pop” type small claims are mostly under $5000 but would need to do some research to be certain. Administrative Judge Davenport spoke to the increased work load on court staff, given that the courts handle service on defendants. This could result in increasing staff, an appropriation on the bill, etc. The bill doesn’t seem to have legs after this morning.

Finally the Committee began work on H. 413, the collateral consequences of conviction bill. Rich Cassidy testified by phone as to the background of the bill; he was followed by Assistant AG John Treadwell. The AG’s Office is supportive of the bill with some amendments and with the clarification of who will bear the responsibility to maintain a list of all collateral consequences. The bill is sponsored by three members of the House Judiciary Committee and I think it will be advancing after some further testimony. Rich told the committee that the bill has been adopted in large part in North Carolina prompting the Committee Chair, Bill Lippert, to say that he wanted the committee to hear from someone from North Carolina as to how the bill is affecting criminal proceedings there, if at all.
Thanks for reading. 

Tuesday, February 4, 2014

I was back in the House Judiciary Committee this morning for the final action on H. 88. The committee voted unanimously to send the bill to the House floor.  There was one amendment to the bill that would require joinder of actions if a divorce, for example, was filed. You can read draft 2.1 which is the draft that was voted on here:

http://www2.leg.state.vt.us/CommitteeDocs/House%20Judiciary/Bills/H.88/Bills,%20Amendments%20and%20Summaries/1-28-2014~Michele%20Childs~H.88~Draft%20No.%202.1,%201-28-2014%20strike%20all.pdf

This afternoon, the committee will return to the minor guardianship bill, H. 581, with hopes of completing its work on that bill also. I’m not that certain it’s ready yet but it’s certainly close to being done. Then, tomorrow, S. 119 is up for “mark up” in the afternoon. Given the weather forecast, at least right now, anything can happen to schedules this week.

Wednesday morning brings a change in focus for the committee as they look at three bills for the first time. They will look at H. 731, a bill that would permit a party to request that a judicial officer other than an assistant judge preside in a small claims action and that would require the rules of evidence apply when such a request is made. The second bill, H. 545, would increase the jurisdictional limit in small claims to $10,000. Finally, the committee will hear about collateral consequences of conviction in H. 413. I think this is the first time the House is considering this issue. I recall that the Senate Judiciary Committee in the past has heard testimony on it but never took action.

These are all interesting  issues that the committee will be focusing on as they enter the second month of this year’s session. I’ll report on these and other happenings as I can. Thanks for reading. 

Thursday, January 30, 2014

Last night’s retention hearing interviews of Judges Maley, Walsh and Davenport went as smoothly as any in recent memory. Even though Judges Maley and Walsh are going through this process for the first time, they did well and engaged the committee members in detailed conversations about their court work. Judge Maley had about six years experience as a family court magistrate before being named a superior court judge. But, until judicial restructuring in 2010 magistrates were not subject to the retention process. Some judges really fear the process but both of these judges seemed to handle it just fine. Sure each had a combination of negative and very positive comments on the legislative council questionnaire, but both spoke with confidence in response to committee questions.

Interestingly both judges spoke to the isolation they feel as judges. Judge Maley spoke to the diversity of cases he encountered in the civil division. Judge Walsh complimented the environmental division staff with helping improve time to resolution of cases and the disposition guidelines that were adopted for the division.

Judge Davenport’s interview really just consisted of a discussion of the varied duties of the administrative judge. She only received 8 comments on the questionnaires due to the few days she has been able to be on the bench in the last year and a half to two years. So the committee’s conversation with her focused more on disposition guidelines and case and document management systems.

Two weeks from last night the committee will be interviewing Judges Hayes, Suntag and Nancy Corsones. On February 19^th, from 7 to 8:30 there will be a public hearing and the opportunity for any of you to appear to offer testimony on any of the six judges. That will take place in Room 11 at the statehouse.

Thanks for reading.

Wednesday, January 29, 2014

So, once again I've let a few days pass without an update. Last Friday I was away from Montpelier attending the New England Bar Association meting in Massachusetts. Last Thursday I returned to the House Judiciary Committee for continued work on H. 581, the minor guardianship bill. The Committee continues to work its way through the bill and to reconcile some differences. That work will continue this afternoon after the House adjourns from the floor.

There is a new version of H. 88, the custody bill that may see a vote later today also in Judiciary. Now is actually a good time to point out some great improvements to the legislature’s website, especially the committee pages. Go to their home page: http://www.leg.state.vt.us/.  Follow the link to Committee Schedules and Agendas. If you click on the blue square next to the committee name, you’ll be taken to the agenda for the week. But, if you click on the name of the committee, much more information is available. So, staying with the House Judiciary Committee, following that link will take you to the materials and written testimony submitted to the Committee. And, you can sort by day, witness or bill. If, for example, you wanted to see the latest draft of H. 88. Click on “Sort by Bill”, then H.88, then Bill, Amendments and Summaries. Every committee now has these materials posted. Gone are the days when I had to come back to the VBA, scan in a bill amendment and email it to the Section list serve that might be interested in the issue.

Try it out on S. 119, the amending perpetual easement bill. The committee spent the entire morning hearing witnesses and reviewing submissions. They will return to it on Friday morning with at least two others scheduled to testify.

Tonight, starting at 5PM, the first three judges facing retention will be interviewed by the Judicial Retention Committee. They are Judges Davenport, Maley and Walsh. Refer to my post of Monday to see the full retention schedule, including the public hearing. I’ll report on tonight’s proceedings tomorrow.

As always, thanks for reading. If there is anything you think I should cover or report on which I have not please let me know. 

Monday, January 27, 2014

Here is this year's Judicial Retention hearing schedule:

Judicial Retention Schedule for 2014

I.  Initial Meetings with Judges

Wednesday, January 29th from 5pm to 7pm—Ethan Allen Room

       Judge Thomas Walsh
       Judge Martin Maley
       Judge Amy Davenport

Wednesday, February 12th from 5pm to 7pm—Ethan Allen Room

       Judge Kate Hayes
       Judge David Suntag
       Judge Nancy Corsones

II.  Public Hearing on Wednesday, February 19th at 7pm—Room 11

       Attendance by judges is optional

III.  Follow up Meetings with Judges

Wednesday, February 26th from 5pm to 7pm—Ethan Allen Room

       Judge Martin Maley
       Judge Kate Hayes
       Judge Nancy Corsones

Thursday, February 27th from 5pm to 7pm—Ethan Allen Room

       Judge Thomas Walsh
       Judge Amy Davenport
       Judge David Suntag

Wednesday January 22, 2014

I’ve been camped out in the House Judiciary for the last two days following discussions on S. 119, amending perpetual conservation easements and H. 88, the PR&R bill I wrote about last week. The committee took some preliminary testimony from Darby Bradley on 119 with the chair commenting on the length of the bill and searching for the reason why it is necessary. Darby told the committee there are rules on amending easements in current law and there exists some uncertainty with the IRS re: donated or charitable deduction parcels. He is hoping to create a system people can have confidence in, comprehensive enough to satisfy IRS concerns that Vermont’s system protects state and federal interests. This bill has a long way to go on the house side even though it already passed the senate last year. There are fees and appropriations in the bill that require review by at least two other house committee before it can hit the floor.

Yesterday afternoon and this morning the committee focused on H. 88. As I reported last week there remain substantial questions about the bill although the committee seems to be coming together on a final product. All I can give you now is the lsit of questions that are still being asked. I expect the next draft will contain a statement of purpose saying that the bill is meant to protect a victim from continued contact and or harassment from her abuser. The issue of whether the bill should apply to statutory rape is still an open one but, given the discretion of the court, I expect it will read “sexual assault” and not be limited to violent acts. The same logic would then apply to the gender issue which sits just below the surface. There is still an issue of how w hearing is to be conducted. We do know that it will be held in the family division but today there was a suggestion that, upon conviction in the criminal division, a victim could move that court to issue the order. I’m not sure where the judiciary would be on both these options.

Yesterday I notified the Property Law Section of two bills that would create a de minimus exemption to the licensed lender law requirements. Those bills are H. 594 and H. 639. Some of you may have an interest in H. 642 which would eliminate jury trials on traffic ticket appeals.

Check out H. 586 here: http://www.leg.state.vt.us/docs/2014/bills/Intro/H-586.pdf

From the summary of the Bill

 Beginning January 1, 2015, the Secretary of Natural Resources would be required to permit discharges of regulated stormwater runoff from the development redevelopment, or expansion of impervious surface equal to or greater than one-half acre.

That is going to significantly expand the jurisdiction as well as the permit issues.  There are a lot of residential lots that are ½ acre.  Looks like it is going to be by rule, see Page 22-23 of the as proposed bill.

This is the best part though – a statewide fee:

§ 1293. WATER RESOURCES PRESERVATION FEE

 (a)(1) The Secretary shall establish by rule a fee, known as the Water

 Resources Preservation fee, on all developed property in the State for the

 support of the Water Resources Preservation Program and its purposes as set

forth under section 1292 of this title. Property exempt from taxation under

32 V.S.A. § 3802, 32 V.S.A. chapter 135, or by municipal vote shall not be exempt from assessment of the fee under this section. The fee on developed property shall be assessed in proportion to the property’s area of impervious surface, provided that the Secretary may establish a default fee for residential developed property based on the average estimated 1 horizontal impervious surface area for a single-family residential unit in Vermont. The default fee for residential developed property shall not exceed $50.00 per year per parcel of property.

I’m heading back up to committee shortly where I expect the judiciary will be asking to make the temporary surcharge on filing fees permanent. That surcharge, as you may recall, was added after restructuring in 2010, effective (I believe February 1, 2011). That fee is set to sunset on June 30^th unless re-enacted. More on this after today.

Thanks for reading.

Thursday January 16, 2014

After the opening days last week I was out of town at the YLD Thaw in Montreal. I spent Tuesday and Wednesday in House Judiciary covering the initial discussions on two bills. On Tuesday the committee began work on H. 581, a bill to revise the law concerning guardianships of minors. Wednesday’s testimony was on H. 88, a bill to permit a parent to petition the court for permanent sole custody of a child who was conceived as a result of a sexual assault.

H. 581 can be found here: http://www.leg.state.vt.us/docs/2014/bills/Intro/H-581.pdf

It is the result of a two year study committee whose final report can be read here: http://www2.leg.state.vt.us/CommitteeDocs/House%20Judiciary/Report%20of%20Minor%20Guardianship%20Study%20Committee/12-4-2013~Amy%20Davenport~Minor%20Guardianship%20Proceedings%20in%20Vermont%202012%20Report%20to%20the%20Vermont%20Legislature.pdf

The bill establishes procedures for appointing guardians for minors in either a consensual or a contested matter. It defines a child in need of guardianship, lays out the powers and duties of a guardian, and addresses termination of the guardianship.

The Probate Judges had some objections to the bill as some feel it makes it more difficult to get a guardianship. There are differences of opinion on whether the child (>14) must be present, whether or when the rules of evidence should apply, and whether counsel should be appointed for the child. The House Judiciary Committee plans to return to this bill next week. I believe Judge Davenport will be called to testify. If any of you have an interest in this please let me know and I’ll do my best to get you on the list of witnesses.

The second bill mentioned above is H. 88 which is found here: http://www.leg.state.vt.us/docs/2014/bills/Intro/H-088.pdf

Although there are a number of sponsors and it appears on its face to be a simple bill, it does present some problems and some committee members have voiced their concerns. In short the bill proposes to grant permanent sole parental rights and responsibilities to the victim parent of a sexual assault, where the non moving parent was the perpetrator. An order would be permanent and not subject to modification. The evidentiary standard is clear and convincing. A conviction of the underlying charge is not required. So where are the issues? Well, according to DCF counsel Jody Racht, if a later TPR petition is filed the non custodial parent must be notified and would be a party to the case. H.88 is not a TPR proceeding and at least one committee member sees it as, perhaps, an end run around the “best interests of the child” standard. Could it also be an end run around the criminal process? Sexual assault is not limited to, for example, forcible sexual assault. Sarah Kenney of the Network Against Sexual and Domestic Violence spoke to the aftermath of a sexual assault and the continued victimization by “using” parent-child contact against the victim. The question arose that perhaps couples living together at the time of the assault or indeed married should not be subject to such a statute.

Here’s an unintended result of this bill as it presently reads. We all remember the case of a female high school teacher who had sexual relations with a boy under 18. That’s sexual assault. H. 88 would allow the boy-victim to move for permanent PR&R if that teacher had conceived a child. Hmmm? Clearly this bill requires some work. I know witnesses will be called next week as the committee continues its work on this.

This afternoon, three members of the House Judiciary Committee (there are 11) will introduce H. 618, a bill that would require that al criminal charges against kids under 18 begin as juvenile delinquency proceedings in family division. It would also allow the family division to extend jurisdiction over the child until age 21.

Sorry for the delay in posting this week but there has been a lot going on, some of which was pretty emotional and really slowed down my game. As we all heard yesterday the VBA is going to be involved in a judicial selection commission named by Senator Leahy to choose a replacement for Judge William Sessions. There’ll be some busy but exciting days ahead. Thanks for reading. 

Wednesday January 15, 2014

I started a blog post but got distracted by moving tributes to Sally Fox on the floor of the House and then in the Senate. Now I'm listening to the Governor's budget address. I'll post a detailed report tomorrow on what's been happening so far this week. Thanks for reading and, this time, thanks for waiting.

They're Baaack!

They’re baaack! Happy 2014 everyone and thanks for checking in on this page. Today the second half of the biennium kicked off and most committees got right down to work. Although the first days contain their share of ceremonial events I think committee chairs are approaching their tasks knowing that time is limited. After tomorrow’s State of the State address by the Governor and next week’s budget message, the real work will begin.

I sat in on a meeting of the House Judiciary Committee in which they set out their early agenda. Senate Judiciary will be doing pretty much the same thing tomorrow. as will come as no surprise I expect both committee to jump right into the issues surrounding opiate addiction and its effect on the crime rate in this state. the Governor will be speaking to this tomorrow also. Interestingly, he invited all State’s Attorneys to that speech tomorrow afternoon.

As is common at the beginning of the year, over one hundred bills were introduced today, the great majority in the Senate. Now just because a bill is introduced doesn’t mean it will pass or even get a hearing. But here are some of the topics that are covered in those bills. Both chambers now have a bill raising the jurisdictional limit in small claims cases to $10,000. The Senate has bills making bullying and aggravated bullying crimes, along with criminal threatening.

Senator Snelling has introduced S. 224, which would require an Act 250 permit prior to the construction of a new structure, the expansion of an existing structure, and certain clearing of vegetation within the shorelands of lakes.

Senator Sears has introduced S. 263, a bill that would permit an assistant judge to sit in a child support contempt proceeding presided over by a magistrate.

There are two bills which would affect the judicial nominating process- S. 276 and S. 305. The former deals with eliminating the requirement that the JNB use the APA to adopt rules. The latter, a bit more substantive would modify the policies of the JNB as follows: see (4) especially:

(c) Except as provided in subsection (d) of this section, proceedings of the Board, including the names of candidates considered by the Board and information about any candidate submitted by the court administrator or by any other source, shall be confidential.

(d) The following shall be public:

(1) operating procedures of the Board;

(2) standard application forms and any other forms used by the Board, provided they do not contain personal information about a candidate or confidential proceedings;

(3) all proceedings of the Board prior to the Board’s receipt of the first candidate’s completed application form; and

(4) at the time the Board sends the names of the best-qualified candidates to the Governor, the total number of applicants for the vacancy and the total number of best-qualified candidates sent to the Governor.

Finally, you’ve already heard about S. 270, Senator Sears’ bill to make the AG an appointed, not elected, position.

So, there’s a lot thrown on the table but May is a long way off. The budget challenges the state faces, the opiate addiction issue, the connection between that and precious metal dealers, Vermont Health Connect, single payer, etc., will take up most of the attention of the members.

As always let me (Bob) know if you want to know more about any issue that I may not be including in these reports. I’ll be in the building tomorrow but then out Thursday and Friday for the YLD Thaw in Montreal. 

Thanks for reading.