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.