Monday, May 18, 2015

It’s been two weeks plus since I posted to this blog; but there’s a reason for that. Let me explain. At the end of the session, especially after conference committees begin working on resolving differences between the two chambers, lots happens in the background. More than other times during the session, conversations happen outside of the committee room and off the record. Things move quickly and change often, too often actually. It’s hard to say where things are at any point in time. It’s best to do our work quietly and in one on one or in small group conversations.

The legislature adjourned as you know about 11PM Saturday. The funding for the judiciary held at $43,945,757  (H.490) even though the revenue bill deleted the $10 IFP fee. The legislature passed H.489 which includes increased fees mostly in probate cases to support the judiciary. The only change from the earlier senate passed version was the elimination of the $10 fee to apply for "in forma pauperis".My concern was that the predicted $35,000 that fee was to raise would be subtracted; didn’t happen.

As we’ve reported before, Dan and I reached out to his Representative Mary Hooper.  We spoke to her on numerous occasions. She became a true advocate for the judiciary. After the roll call vote last night on the budget Mary explained her vote as follows:

Rep. Hooper of Montpelier explained her vote as follows: “Mr. Speaker:

Vermonters’ access to justice is protected in this budget. The Judiciary is receiving a $2 million increase which will ensure – unlike 6 years ago – our courts will be open every day.”

Also, the chair of the Senate Appropriations Committee addressed the same issue on the floor of the senate during its passage of the budget. She said that senators had heard from many members of the bar who raised concerns about access to justice and that spurred the committee to look for ways to fully fund the courts. In addition, Vermont Legal Aid had a cut from the house passed bill restored in the senate.

The conference report contains some policy language about the courts. It can be read on pages 2488-2492 here:

http://legislature.vermont.gov/assets/Documents/2016/Docs/JOURNAL/hj150516.pdf

The capital bill (H.482) passed on Thursday with the Lamoille courthouse funded at $5M. The court's case management system will get $500K next year and $4M the year after. This is down from $750K next year and $5M the year after.

Real estate practitioners should be interested in what the legislature did to raise funds to clean up Lake Champlain. H. 35, a bill to improve the quality of state waters contains a .02% surcharge on the property transfer tax. Here is the language of the bill:

        Property Transfer Tax Surcharge; Water Quality Long-Term Financing Report

Sec. 38. 32 V.S.A. § 9602a is added to read

§ 9602a. CLEAN WATER SURCHARGE

There shall be a surcharge of 0.2 percent on the value of property subject to

the property transfer tax under section 9602 of this title, except that there shall

be no surcharge on the first $100,000.00 in value of property to be used for the

principal residence of the transferee or the first $200,000.00 in value of

property transferred if the purchaser obtains a purchase money mortgage

funded in part with a homeland grant through the Vermont Housing and

Conservation Trust Fund or which the Vermont Housing and Finance Agency

or U.S. Department of Agriculture and Rural Development has committed to

make or purchase. The surcharge shall be in addition to any tax assessed under

section 9602 of this title. The surcharge assessed under this section shall be

paid, collected, and enforced under this chapter in the same manner as the tax

assessed under section 9602 of this title. The Commissioner shall deposit the

surcharge collected under this section in the Clean Water Fund under 10

V.S.A. § 1388.

Sec. 39. REPEAL OF CLEAN WATER SURCHARGE

32 V.S.A. § 9602a (Clean Water Surcharge) shall be repealed on July 1, 2018.

NOTE: the surcharge in Sec. 38 takes effect on passage.

So the date the governor signs the bill is the date to watch for. As soon as I know that I will let you all know.

I can report that three bills we were interested in this year have all been signed into law. They are the Uniform Transfer to Minors Act; the revised Uniform Limited Liability Company Act; and the Uniform Interstate Family Support Act.

So, for now, this wraps up my legislative reporting. I want to thank all of you for your help during this session. Tom Moody and Peter Erly led the effort to get the LLC bill through the process deftly and quickly. Penny Benelli helped the UIFSA to pass. Stephanie Willbanks and Joe Cook’ s efforts guaranteed passage of the UTMA. Without their help and willingness to volunteer their time, none of this would have happened. It’s a real testament to the members of the VBA and their service to our profession and to all Vermonters. You all make me proud to work for you.

As always, thanks for reading. Enjoy summer. The legislature will be back before we know it! 

Yikes, I can’t believe I just said that.

Wednesday April 29, 2015

H 489, the revenue bill and H 490, the budget bill are done and on the Notice Calendar. Action will occur Thursday and Friday; then both will go into conference with the House, hopefully late Friday. This sets adjournment for two weeks from Friday.

In H. 489, sections 33 and 34 contain the new fees that support the addition back of the 500K the administration wanted to cut. The language is on pages 29 to 35 of Addendum 1 to today’s Senate Calendar here:

http://legislature.vermont.gov/assets/Documents/2016/Docs/CALENDAR/sc150429b.pdf

Also, sec. 87 calling for a report from the Tax Dept. on extending the sales tax to services replaces the language we opposed yesterday in our testimony. Here is that section:

Sec. 87. SALES TAX PROPOSAL

(a) The General Assembly concludes that the structural deficiencies in

Vermont’s current revenue and budgeting structure, combined with a change in

the State economy from an economy based on goods to an economy based on

services, requires an examination and rethinking of Vermont’s current sales tax

base.

(b) On or before January 15, 2016, the Commissioner of Taxes shall report

to the Senate Committee on Finance and House Committee on Ways and

Means on how the Department of Taxes would implement an extension of

Vermont’s sales and use tax to select consumer services, not to include

business to business services, most commonly taxed in other states. The

extension of the sales and use tax modeled in the report shall provide two

scenarios designed to raise both $15 million and $30 million in revenue in

Vermont on an annual basis. The report shall include a draft of proposed rules

which shall identify specific services by industry type that are taxable or not

taxable. 62

(c) On or before January 15, 2016, the economists for the Legislative and

Executive Branches, with the assistance of the Joint Fiscal Office and the

Department of Taxes, shall file a joint report to the Senate Committee on

Finance and the House Committee on Ways and Means on the fiscal impact of

further extending Vermont’s sales and use tax to a broader range of consumer

services. The report shall analyze the short- and long-term economic impacts

to the State of Vermont of such an extension, and contrast those impacts with

the short- and-long term projections of Vermont’s current sales and use tax

revenues without the changes in the proposal.

In 490, read E. 204; this contains some of the "lighten the load" language the judiciary wanted. It also includes a statement of intent in E. 204.15 supporting filling the judicial vacancies. See pages 89-93 of today’s Addendum 2 to the Senate Calendar:

http://legislature.vermont.gov/assets/Documents/2016/Docs/CALENDAR/sc150429a.pdf

Here are the funding provisions for the judiciary in the Senate version (see Sec B. 204):

Sec. B.204 Judiciary

Personal services 35,212,260

Operating expenses 8,683,467

Grants 76,030

Total 43,971,757

Source of funds

General fund 38,465,850

Special funds 2,667,462

Tobacco fund 39,871

Federal funds 473,301

Interdepartmental transfers 2,325,273

Total 43,971,757

The Senate increased the funding by $758,000 over the total passed by the House. As I said above, we’re waiting for floor action tomorrow and Friday, followed by a committee of conference. It’ll be a while.

Thanks for reading. 

Tuesday, April 28, 2015

So I just returned from the Senate Finance Committee where I was the first of 21 witnesses to testify about the latest draft of the tax bill. I commented on sections 49-54, the extension of the sales tax to services. I know some of you have already written to your senators stating your opposition and for that we thank you. I did not want to address the issue of the increased administrative burden on you if the tax is enacted. Instead, I went after language in the bill that I found confusing and troubling. Here’s some of what I said. 

In Sec 49, the definitions section, “business to business” transactions are exempt. Over lunch today talking with a local lawyer he raised the following hypothetical. If he were to do title work, for example, for a husband and wife he would need to collect a sales tax. But if that husband and wife were to form an LLC or partnership, they would be exempt from the sales tax!

If “business to business” transactions are exempt that would mean that the tax would only apply to individuals who are perhaps the least likely to be able to absorb and afford such a tax. The tax would apply to a victim of domestic abuse hiring counsel to represent her. It would apply too a custodial parent trying to collect child support or enforce an order of the court. It would apply to the landlord trying to evict a tenant after going months without collecting any rent. Likewise, it would increase the cost to a tenant who needed representation in a case on uninhabitable premises. I told the committee that taxing Vermonters such as these is bad public policy and will only increase the number of self-represented litigants in an already overburdened court system.

Also, if you look at Sec. 54 there is troubling language that sets the tax rate at 4.75% “of the sales price charged…” Really? Is the tax on the amount billed or the amount actually collected? We all know those numbers are rarely the same.

Finally, I raised what I consider to be a constitutional issue in criminal cases. If I were to exercise my 6^th Amendment right to “have assistance of counsel” in my defense, can the state tax me on what I pay my attorney? Isn’t that a tax on exercising my rights? Is it any different than taxing lobbyists and their clients?

In any event I think the committee will leave us in the bill as there is hardly time for deliberation, discussion and amendments now. The committee is hoping to vote the bill out tonight! Then it’s off to conference where I expect and hope the services tax goes away. The budget bill can’t be finished without knowing what the tax bill will raise. The capital bill can’t be finished until the budget is done. Stay tuned. As always, thanks for reading. 

Monday. April 27, 2015-TAX ON SERVICES RETURNS!

I received the following from the Chair of the Senate Finance Committee on Saturday. I am planning to testify at 1 PM on Tuesday but wanted all VBA members to be aware of what the committee will be discussing. Now is the time for each of you to weigh in if you have an opinion on this. Here is a link to the membership of the Finance committee; if any of these senators represent you please let them know how you feel about extending the sales tax to services. http://legislature.vermont.gov/committee/detail/2016/25

You are receiving this because you have expressed interest in this year's legislative revenue discussions as it relates to you, your organization or business, or your clients. Senate Finance has been taking testimony on and off all session on various tax considerations. As we move closer to a vote on a revenue plan, we have reserved two three hour time slots on Monday and Tuesday of this week for overall comment from interested persons on the draft bill, H.489. The meetings will be this Monday from 3-6pm and Tuesday from 1-4pm in Rooms 10 or 11. 

We welcome specific or general comments about the FY2016 revenue plan, which primarily features the income tax revisions, and the FY2017 changes which primary relate to an expansion of the consumer sales tax and lowering the sales tax rate from 6% to 4.75%. 

You can find Draft 4.2 here: http://legislature.vermont.gov/assets/Documents/2016/WorkGroups/Senate%20Finance/Bills/H.489/Drafts,%20Summaries,%20Amendments,%20and%20Fiscal%20Analysis/H.489~Peter%20Griffin~Draft%20No.%204.2,%204-24-2015~4-24-2015.pdf

You can find a plain English summary here: http://legislature.vermont.gov/assets/Documents/2016/WorkGroups/Senate%20Finance/Bills/H.489/Drafts,%20Summaries,%20Amendments,%20and%20Fiscal%20Analysis/W~Peter%20Griffin~H.489%20Section-by-Section%20-%20Draft%20No.%204.2,%204-24-2015~4-24-2015.pdf

Please let Charlie Enscoe know if you or someone you are affiliated with would like to book a slot before the committee. He can be reached at censcoe@leg.state.vt.us

April 6, 2015

I apologize for having been silent on events in the legislature for the month of March. Due to a death in the family I spent the month in New York. VBA President Dan Richardson covered for me and devoted more time to our presence in the statehouse that he expected when he became President. The following summary on the judiciary funding issue is his.

As you all may already know, the House Appropriations Committee passed H. 490 two weeks ago that did three things affecting our conversation: 1) it created a study group that will work this summer to look to see how systematic changes can create the savings sought by the legislature and the administration; 2) It cut $500,000 from the judiciary’s budget but restored it for FY 16 with one-time money equal to $500,000; and 3) it implemented the proposed $600,000 pay act cut and the $900,000 in underfunding of existing judiciary obligations.  Notwithstanding these cuts, the partial restoration of funds and the study group felt like a big lift from the house that was, as I explained at the last meeting, just ready to slash the budget and let the judiciary deal with it.  These changes reflect a lot of efforts on the VBA’s part and on members’ part to persuade legislators of the problems. 

Whether these cuts will stay in the Senate’s version is less clear.  Last week, I testified in Senate Judiciary, and the Committee seemed supportive of walking back these cuts.  Senator Tim Ashe, in particular, was upset with the idea that the $500,000 being called “bridge funding.”  As he put it, a bridge is supposed to take you across that chasm and not drop you in the middle. 

The Judiciary is not happy with the budget because of the $500,000 cut to their base budget, which without this year’s one-time funding will become a hole for them next year and every year thereafter to fill or cut.  In other words, the Judiciary understands that the one-time funding allows them to dodge a bullet this year, but it comes with a price tag that any budget discussion next starts with a base budget at this lower amount.  That means, the Judiciary, under the House bill, has less than one-year to come up with a permanent $500,000 cut to its budget for next year’s budget process.   

More importantly, the $1.5 Million in cuts to the pay act and from the underfunding remain, which pose a serious problem for the Court beginning July 1st.  The Judiciary’s remaining focus for the year is to undo the $500,000 cut (more semantics than actual money swapping since the money is already there for FY16) and to fight to restore the $600,000 through a mixture of fee increases and restoration of some pay act funds.  If successful, that would keep the Judiciary where they are now, underfunded and relying on vacancy savings but able to fund its current operations.  As I pointed out to Pat Gabel, the Chief, and Judge Grearson the problem is that now the Administration and the House are lined up behind this budget and the Judiciary will not only have to persuade the Senate to disagree these cuts but take the fight to the house and the Administration.  It is a tall order.

The judiciary is supportive of the summer study/working group.

Despite opposition, the videoconferencing arraignment pilot project looks like it will be going forward.  The House bill provides funding for a pilot project, and the Judiciary has begun to move forward.  They have also heard the message from several corners, including the VBA, that they need to work with the various partners on this project. 

The big news according to Pat is that the Administration has made it very clear that they want the long-term cuts to come from courthouse closures.  Pat has stated in no uncertain terms that the Court does not support closing courthouses and will fight to keep them open, but that the Administration sees closing some courthouses as a necessary budget cut.  Pat reported to me that the Administration made no bones about it, and that they would keep the budget pressure on the Judiciary until it closes courthouses.  The important thing to keep in mind is that when we are talking about closing courthouses, we are also talking about laying off the court staff.

Judge Grearson is making out next year’s trial court rotation schedule, and he reported that with the four current vacancies unlikely to be completely filed by September 1st, the rotation schedule is going to have a lot of holes in it.  These gaps will largely fall to the civil docket as resources will have to go to family and criminal.  Even if the Governor makes new appointments, the new judges will take time to close their practices and receive training.  Grearson estimates a 4 to 6 month process to put the new judges on the bench, hearing cases, after the appointments are made. On top of this, Judge Grearson indicated that there might be more vacancies coming in the late summer/early fall.  So this is a problem that may get worse before it gets better.

27 February 2015

So it’s now one week since I met with the Speaker of the House about the court’s budget and I’ve heard nothing from the supreme court about the suggestion of fees to reduce the cutback. I gather from the testimony of the court administrator (CA) yesterday at the house judiciary committee that the court is ignoring that idea.

She proposed other money saving ideas to the committee; well, sort of. The first is a proposal to add videoconferencing equipment to 7 correctional facilities to allow remote court hearings. The judiciary would have to purchase not only those 7 but 14 for the 14 courthouses. The cost would be $306,000. They are proposing a July pilot project in Chittenden County followed by expansion in January. This should help reduce the sheriffs’ transportation costs of $2.2 million by about 25-30%. But, there will be no savings in FY 16; there will be a net cost with savings to be seen in FY 17.

The court hopes to follow the lead of New Hampshire, Massachusetts, Connecticut, and Virginia. 

This, as some of you may remember, has been tried before but didn’t succeed. The CA attributed that to lack of discipline in project management and the technology at the time, although New Hampshire has apparently been doing it for 18 years.

The court does desperately need to cut back on transport fees as over two million dollars a year is really not at all sustainable. But this proposal does nothing to help the cut of $500 K that’s about to hit the judiciary hard. I’ve spoken to some members of the committee who remain confused as to what the court intends to do for the fiscal year beginning in 4 months. You can read about the video proposal here:

http://legislature.vermont.gov/assets/Documents/2016/WorkGroups/House%20Judiciary/Budget/W~Pat%20Gabel~Video%20Opportunity~2-26-2015.pdf

The question was asked about attorneys meeting their clients. The CA responded that defense counsel could meet their clients before a hearing or could travel to the correctional facility and meet with and appear with their client from there. I wonder how that will work with some public defenders who may have clients out on bail and in the correctional centers; how do you appear for both say, for status conferences?

The court is having a bill drafted that will cover some other issues. I was not given a copy of it. I expect that it will bypass some appeals to the superior court and redirect them to the supreme court. I expect it to say that appeals from magistrate decisions will go “on the record” to the supreme court, bypassing the family court judge.

The proposal will also include probate hearings on the record and appeals to the supreme court on that record. You readers will have to tell me whether all probate courts are outfitted with the equipment needed to make that record.

In divorce cases with substantial assets at stake or complex business valuation issues, the court wants the authority to appoint a special master to aid movement of the case through the family court.

Finally, and I’m not sure just what this could entail, the CA spoke about the court seeking authority to change venue by rule. I believe she said “up to four counties”. This is part of the court’s repetition of “right sizing” the courts. Although the supreme court does not support closing courthouses. This proposal will require some study and comment when it’s on paper.

I expect the House Judiciary Committee will return to these proposals on Tuesday March 10 and Thursday March 12. Stay tuned.

This should shed more light on how bad things are:

http://www.leg.state.vt.us/jfo/appropriations/fy_2016/List%20of%20Ideas%20for%20Budget%20Reductions.pdf

Finally, the governor has made his appointments to the Judicial Nominating Board; now we’re only awaiting the senate’s three names. I expect legislative counsel will convene the Board after the senate appoints its three members on Tuesday, March 10^th. At the first organizational meeting the Board will adopt rules and elect a chair. Then the governor is expected to ask them to fill one judicial vacancy.

So, this is my last report until after the Town Meeting break. Thanks as always for reading and don’t forget to buttonhole your reps and senators next week and ask that the court be fully funded. 

Wednesday, February 25, 2015

It’s time I updated what’s been happening in Montpelier. First of all, the House chose its members of the Judicial Nominating Board. They are Bill Lippert, Maxine Grad, and Patti Komline. I spoke with Sen. Mazza yesterday about the Senate’s appointments. He is part of the three member Committee on Committees and said he’d urge Pro Tem John Campbell and Lt. Gov Phil Scott to make their appointments soon. And, we are still awaiting the governor’s two appointments. It’s hoped that then the new JNB is complete, at least one judgeship may be filled. If that means that the JNB will have to meet during the session, then that’s what will happen. By the time the notice of application goes out, followed by the interview period etc, it’ll be summer before names go to the governor. According to Chief Superior Judge Grearson, he’d like a new judge or judges to be ready to be on the rotation schedule by September.

So, where are we on judicial funding issues? After hearing many of you, some probate judges, trial court clerks, VBA Board members talk about increasing fees I took that message to members of the house appropriations committee. Some members seem interested in that conversation. Remember though that the fees (and fines) generated go to the general fund and not to the court’s budget. My approach was to ask that, in exchange for increased dollars to the general fund, that the court would be given a pass on the proposed $500K cut this year. In exchange the court could continue its meetings with its “justice partners” through the rest of this year and report to the legislature in January where to find efficiencies and potential savings.

Last Friday I made that pitch to the speaker in a one on one meeting. His response was that he’d be willing to see a “dollar for dollar” swap- any increase in fees would reduce the court’s cut. He wasn’t able to go further. I communicated that message to the chief justice an court administrator within minutes of leaving that meeting. To date, I haven’t heard from the court as to whether this is a direction they want to pursue. I know that the speaker talked about that idea to the chair of the senate appropriations committee Jane Kitchel; she is also interested.

Yesterday afternoon the chair of the Senate institutions Committee, Peg Flory,  asked me to sit in on a 3:15 hearing on the “judiciary protocol for prioritizing of capital projects”. The question was whether to go forward with the $5.2 million capital project at the Lamoille courthouse or redirect that money to a case management system. The court administrator (CA) told the committee that the “priorities of the court are changing given the current cuts”. The commissioner of building and general services objected saying that substantial money had already been spent on engineering etc. Also, he said they have already rented space for court staff who will be relocating in April in preparation for the construction. She also said that redirecting that money will not result in any savings in FY 16. Sen. Mazza asked what the return on that investment would be; Sen. Rogers said that the cost of running IT systems is always higher than planned. Again the CA responded that some states claim a 20% savings. She doesn’t expect VT will see any savings because “we’re underfunded already”.

Senators Mazza and McAllister asked about increasing fees and again the CA didn’t really respond. All she said was that last year was the court’s three year cycle to have fees reviewed and, with the exception of removing the surcharge and rounding up the filing fees, the fees were not increased. So it seems as though the door may be open to moving forward on this.

Everywhere in the statehouse people interested in the judiciary are talking about the funding crisis hitting the courts. I’ve asked all of you at least twice now to talk with your representatives and senators about fully funding the judiciary. You should see many of them next week at your town meetings. Make sure they understand what this means for access to justice and preservation of the rule of law.

OK, back to senate institutions. The CA spoke to moving to increase use of videoconferencing, which of course would require an investment upfront. There were no details as to cost or timing. She also spoke to regionalization of termination of parental rights cases (TPRs). Sen. Flory asked about the experience with the use of video for criminal cases in the past. The CA responded that the technology is better today and these systems are in use in other states. She thinks a 25-30% savings in the cost of transport and travel if the money is invested in video technology.

The hearing ended with the CA repeating the well-known limitations in the paper filing system, data entry 30 year old system that our courts use. She also raised the issue of whether every county should have a “full capacity court”. Should some courthouses be outfitted with the newest technology and trials held there, even if it means taking a case to another county? I’ve run that idea by some trial lawyers and they seemed interested; this is especially true among those who practice in the federal district court. She repeated that the supreme court does not support closing courts.

Two final issues were raised: at what level are courthouses maintained? Should some of that cost be shared by the county? Finally security costs came up again. This time it was raised by Sen. Mazza. Earlier in the day in my conversation with Sen. Kitchel, she raised the same question.

So that’s where we are at the moment. I’ll continue to report any news. Thanks for staying informed and for reading these posts. 

Thursday, February 19, 2015

Last night’s public hearing on judicial retention was uneventful. There were only three witnesses, all of whom testified in support of Judge Teachout. No other witnesses appeared to speak for or against the other judges or magistrates.

Before the public hearing began, the committee interviewed our newest judge, Judge Waples. She will be interviewed by the senate judiciary committee on Friday morning and hopefully confirmed soon thereafter. As she is filling the superior court seat once held by Judge Crawford, which term expires 31 March 2015, she needs to go through the retention process. Obviously, she hasn’t even sat as a judge yet so there is not record on which to base a retention vote. It’s just one of those quirks of our system.

Also, tomorrow the senate judiciary committee will interview Justice Eaton for confirmation. Neither should present any problems.

There are a couple of things of note for all of you to take a quick look at. The house government operations committee is working on a bill presented by the secretary of state; H. 206 would change the way notaries are commissioned; set qualifications, including continuing education; set out what may be accepted for identification, among other things. The bill can be read here: http://legislature.vermont.gov/assets/Documents/2016/Docs/BILLS/H-0206/H-0206%20As%20Introduced.pdf

This bill will affect each of you and the notaries in your office. You should read it and send me your reaction. I testified yesterday preliminarily and addressed the cost issue, the examination for first time notaries (yes really!), the continuing education, etc. I think we can support the online registration, the qualifications and standards set out in 206 but there is some dispute as to the remainder of the bill. Please let me know your thoughts.

Our Family, Juvenile, and Criminal Law Sections have been following S. 9 since the first week of the session. The senate judiciary committee voted the bill out yesterday unanimously and sent it to the appropriations committee. It’s there because of funding included in the bill for a legislative oversight committee. Here’s a link to the amended version of S. 9:

http://legislature.vermont.gov/assets/Documents/2016/WorkGroups/Senate%20Judiciary/Bills/S.9~Luke%20Martland~Draft%20No%201.1~2-18-2015.pdf

I’ll keep you posted as we move into the last week before the Town Meeting break. Thanks for reading. 

16 February 2015

Public Hearing on Judicial Retention of the following Superior 
Court Judges and Magistrates: 

Honorable Brian J. Grearson, Superior Judge 
Honorable Mary Gleason Harlow, Magistrate 
Honorable Christin A. Hoyt, Magistrate 
Honorable Mary Miles Teachout, Superior Judge 
Honorable Howard E. VanBenthuysen, Superior Judge 

The Joint Committee on Judicial Retention will hold a public hearing on 
Wednesday, February 18, 2015, starting at 7:00 pm. 

The hearing will be held in Room 11 at the State House. Members of the public interested in testifying regarding the above Judges may sign up 30 minutes prior to the hearing. 
Each person will have 5 minutes to testify and the hearing will adjourn at 8:00 pm. 

12 February 2015

Yesterday was a busy day for the VBA. It began in the House Government Operations Committee where Deputy Secretary of State Chris Winters presented a bill that would regulate notaries public. The bill, H. 206 can be read here:

http://legislature.vermont.gov/assets/Documents/2016/Docs/BILLS/H-0206/H-0206%20As%20Introduced.pdf

It is needed, he said, to provide standards for notarial acts, create a stable system of regulation and insure Vermont’s standards are compatible with those of other states. Applications and renewals would be online an run by the secretary of state’s office of professional regulation. The cost would double ($30 every two years instead of every four) with the money going to the state (I believe) instead of the counties. You should all review the bill as it will affect you and members of your office staff. Please get your comments, if any to me as the VBA will be asked to weigh in.

I met with the Executive Director of Vermont Legal Aid, Eric Avildsen, in the morning shortly after he spoke with the appropriations committee member responsible for his (AHS) budget. The governor has recommended a reduction in the VLA grant of $47,000. While that amount may seem small, those dollars bring in a dollar for dollar federal match, making that 47K cut almost a $100,000 loss. If that happens, VLA will be funded at about the 2008 level. In actuality it needs a $75,000 increase just to keep up with inflation.

I spent the afternoon with the judiciary in the house appropriations committee as they made their budget presentation. The chief justice led off with an overview of the underfunding crisis and his use of vacancy savings to stay within budget. But he called vacancy savings a “cancer on the branch; continued erosion of support for the courts is leading to distrust and disrespect of the courts”.

He was followed by court administrator Pat Gabel and Chief Superior Judge Brian Grearson along with CFO Matt Riven. They all testified firmly and effectively in opposition to the governor’s recommended cut of $500,000 in FY16. This 9 page document is worth a read, especially pages 4 to 6:

http://www.leg.state.vt.us/jfo/appropriations/fy_2016/Department%20Budgets/FY2016%20Budget%20-%20Judiciary%20-%20Summary%20-%20Key%20Budget%20and%20Programmatic%20Issues%202-11-15.pdf

The budget bill will not be voted out of the House until after the Town Meeting recess. I urge all of you to contact your representatives now to ask that they NOT support the reduction in judicial funding. Don’t just call, email or leave a message; try to start a conversation and try to get a commitment that they will stand with the court on its budget request. Follow up with your legislator at Town Meeting and let me know where he or she stands. This has to be a grass roots effort and, as officers of the court, we have a responsibility to preserve our system of justice. We need your help; it’s time to act.

Finally, I ended my day at the evening meeting of the judicial retention committee where three judges and two magistrates were interviewed. These meetings are generally cordial with the candidate for retention making an opening statement as to why he or she wants to continue to serve. The committee then questions each one usually basing questions on the results of the surveys.

 Judge Grearson was up first and his conversation focused on three of his roles: until recently as a full time trial judge; his role in treatment court; and now as chief superior judge. What impressed me the most of his comments was something he alluded to in appropriations earlier in the day. He said vacancy savings in not a savings. “you’re not saving, you’re compromising”. There’s more to managing a court system that trying to save money by not filling positions. You can only do so much when morale is as low as it is right now.

If I recall correctly Matt Riven said there are 22 unfilled positions in the judiciary. We know that there are 3 open superior judge positions, with another coming on February 28, when Judge Suntag retires. The fifth will follow with the retirement of Judge Wesley this summer (I believe). And there is talk of a sixth before September. Also, Magistrate Shelly Gartner is retiring at the end of March. Judge Grearson can only move bodies around so much to try to keep all dockets covered. We’ve heard from many of you about delays already; without restoration of the funding needed, it’s going to get worse.

Judge Teachout followed and was immediately hit with a comment form the committee that they were disturbed at the high number of negatives in the survey responses. Comments such as “arrogant, disrespectful, hostile and demeaning” were heard. The judge was taken aback by those and, although she admits to be formal in court and to insisting on following the rules, she did not see herself in that way. But, as all retentions do, this makes for a time of self-reflection and improvement.

I have to relate something she said though because it seemed so odd to me. While some respondents complained about formality, Judge Teachout spoke about having to remind counsel in court to rise when addressing the court! Maybe I’ve been out of practice too long but I never heard anything of the sort. Have we really gotten that lax? Are we no longer mentoring new lawyers? Should the VBA be training new lawyers about protocol? Aren’t law schools doing that? It surprised me and I know it surprised the other judges in the room.

Judge Van Benthuysen addressed two issues in his comments: first, he said that one year rotations are too short, especially for judges that cover treatment courts. Secondly, he questioned our practice of generalist judges saying “we’re not all equally good in all dockets”.

The two magistrates Mary Harlow and Christine Hoyt, facing retention for the first time, were well received. Each spoke to being nervous with eh new process and each felt humbled by reading comments about their performance. They did well overall. Each was asked about how they handle a case when only one side is represented. They spoke to their duty to help develop the evidence and the ways they may use to do that.

Sorry for the length of today’s post but, as I said at the beginning, it was a busy day. As always, thanks for reading. But now we need you to act. Call your legislators; meet them at town Meeting; let them know of the crisis the court is facing. Thanks.

Stay warm.

10 February 2015

Sorry I haven’t reported for a few days but I traveled out of state for the ABA Mid Year Meeting; yes, it was in a warmer and sunny place- Houston, TX. Since I last posted the House passed the Uniform Transfer to Minors Act and sent it to the Senate. Now, the Senate will hold it until after crossover- the day when bills (except money bills) must be passed by one chamber in order to receive consideration in the other. That date, this year, is March 13^th, although there is some flexibility in the first year of a biennium.

Tomorrow the House should act on the Uniform Interstate Family Support Act (H. 86). VBA Family Law Section Chair Penny Benelli testified in support of the bill which needs to be passed in order as a condition of continued receipt of federal funds supporting child support programs.

Also tomorrow the Joint Committee on Judicial Retention will interview the three judges and two magistrates up for retention this year. Here is the committee schedule should you be interested in providing input to the committee or to testify at the public hearing.

JUDICIAL RETENTION SCHEDULE 2015

Wed. 2/11    First Comm. meeting with Superior Judges, Magistrates

5:00 p.m., Room 10

          Hon. Brian Grearson

          Hon. Mary Miles Teachout, Superior Judge                          

          Hon. Howard VanBenthuysen, Superior Judge

          Hon. Mary Gleason Harlow, Magistrate

          Hon. Christine Hoyt, Magistrate

                   

Wed. 2/18    Public hearing

7:00 p.m., Room 11

Thurs. 2/26   Follow up Comm. Meetings with Superior Judges, Magistrates

5:00 p.m., Room 10

March 2-March 6     Town Meeting Week Recess

Wed. 3/11    Comm. Meeting to deliberate, vote and make reporting

5:00 p.m., Room 10          assignments

Tues. 3/17    Have summaries of reports available for caucuses

Thurs. 3/19   Joint Assembly (if Comm. is not ready, postpone by Joint

10:30 a.m.    Resolution until 3/26)

A lot has been happening, although mostly in the background, on the judicial budget issue. There’s not much to report here except to say that the Senate agrees with the House on the budget adjustment to the judiciary budget. The $500,000 cut proposed by the governor for FY 16 is still in play. The Supreme Court convened a meeting yesterday of about 20 stakeholders to discuss options to save some money. Those options include “right-sizing” use of courtrooms; increased use of video conferencing; reduced prisoner transport; specialty court dockets, etc. Of course, closing courthouses (Grand Isle and Essex) came up as did reducing the number of probate courts. But nothing conclusive came out of that meeting; there was no consensus on a plan. Tomorrow afternoon, the CJ is presenting the court’s budget to the House Appropriations Committee. It’ll be interesting to hear his summary of yesterday.

I’ll update this as soon as I can after tomorrow’s hearing. Thanks for reading. 

4 February 2015

Two senate committees- judiciary and health & welfare- continue to work on S. 9, an act relating to improving Vermont's system for protecting children from abuse and neglect. The bill was the result of a summer study committee convened after the death of two children in DCF custody. The VBA Family, Juvenile, and Criminal Law Sections are reviewing the bill and considering their positions on the changes being proposed. DCF and Chief Superior Court Judge Brian Grearson are involved in reviewing it also.

The Uniform Transfer to Minors Act moved to third reading yesterday after the house approved the amended version as reported by the judiciary committee. I expect the bill will pass the house this afternoon and be introduced in the senate on Friday.

Later today the newly constituted Joint Committee on Judicial Retention will hold its organizational meeting. Here is the membership of the new committee:

JUDICIAL RETENTION COMMITTEE – 2015

House Members                                    Senate Members

Willem Jewett                                      Peg Flory

Chip Conquest                                     Joe Benning

Barbara Rachelson                                Alice Nitka                                                   

Gary Viens                                          Michael Sirotkin

         

Judges up for retention this year include Judge Grearson, Judge Teachout and Judge Van Benthuysen. Magistrates Harlow and Hoyt are also up for retention.

Thanks for reading. 

28 January 2015

Here’s a short update and what’s happening both on a substantive issue and on the funding crisis in the judicial branch. The House Judiciary Committee is nearing completion of its review of the Uniform Transfer to Minors Act. Yesterday, legislative counsel Erik FitzPatrick presented some amendments to the committee that were requested last week. After discussion and a few more changes, he emailed them to Stephanie Willbanks, Joe Cook, Mark Langan, and me. Stephanie weighed in with one comment as did I; pending any issues that may be raised by Joe or Mark, the Committee may vote the bill out as early as 1:30 today.

Tomorrow the Committee will focus on the H.86 - An act relating to the Uniform Interstate Family Support Act. Uniform Law Commissioner Richard Cassidy will testify and VBA Family Law Section Chair Penny Benelli will also. I’ll post an update when there’s more to report on that.

On the judiciary budget front, you now know that H. 82, the budget adjustment act is out of committee, on today’s Notice Calendar and up for action Thursday and Friday on the House floor. Yesterday the Senate Appropriations Committee heard from the court administrator on the $224,138 cut in this year’s budget. Although I continue to deliver the message I’ve heard from many of you that these cuts are damaging access to justice, the judiciary seems willing to manage to that level of reduced funding. Every state agency (yes, I know we’re talking about a branch and not an agency or department) is expected to keep about a 3% vacancy savings. The judiciary now carries a 3.5% vacancy. The cuts in the budget adjustment bill would force them to raise that to 7-8%; too much to ask, I’d say. The question for you the reader is whether a branch of government should be forced to operate at that reduced level. When does that reduction affect the constitutional obligation of the judicial branch? And, if, as some of you are telling me, the answer is NOW, what should we do about it? I will continue to deliver your message to the legislature. My hands are a bit tied though since the court is acceding to the reduction.

So, back to yesterday’s hearing. There are a couple of highlights I want you all to know. Senator Sears pressed court administrator Pat Gabel on the costs of court security ($2.5M). He thinks they’re spending too much on security. He’s looking for the governor’s recommended $500,000 cut in next year’s budget. He said he’d be willing to discuss court closings if the court administrator has a recommendation on saving some of the “wasted” money spent on security.

In response to the letter to the Chief Justice by the House Appropriations Committee last Friday, she said the court is prepared to convene and lead a process that includes all the parties. (The VBA is one of the parties copied in that letter). She raised two other topics: the potential regionalization of certain dockets and, not closing courts but “right sizing courts”.

When Senator Sears asked about the court’s decision to not fill the Environmental Division manager’s position, Pat said the following: she had been tasked by the supreme court to report to them (within 60 days) on the “regionalization of management”. That was new to me. She had previously told me, as had the Chief, that the court had not made a final decision on filling that position. Now, it appears to be tied to something that we’ve not heard before.

Finally, Senator Sears raised the issue of consolidating probate courts again. As many of you may recall when H. 470, the judicial restructuring bill, was introduced it reduced the number of probate courts from the then 18 to 5! The VBA opposed that in 2010 and the final act settled on 14 courts. He’s bringing it up again as a way to reach the $500,000 savings the governor is looking for. Pat Gabel made it clear that that is not the judiciary’s recommendation.

So, where does this leave us? I expect the budget adjustment debate is over; it’s certainly too late to change anything in the House. Now is the time for each of you to contact your senators and let them know the effect these cuts are having on your clients’ access to justice. As one person, I can only do so much. Nothing beats a constituent contacting a legislator. It would be even better if you could get a client story before your senator.

Thanks for reading. Send me any comments or questions you may have. 

26 January 2015

Anne Galloway, founder of VT Digger, published this report today on the judiciary budget crisis:

http://vtdigger.org/2015/01/26/judiciary-says-500000-cut-lead-court-delays/

it’s a summary of what has been happening in appropriations  committee hearings last week. Although the VBA opposed not only the $500,000 cut in the FY 16 budget year but also the $730,473 rescission in this year’s budget. Unfortunately the judiciary did not contest this year’s cut. My testimony fell on deaf ears since the recipient of that money really didn’t object. No, I don’t know why.

If you followed the link last week to the letters submitted by the court, check it out again today. I’ve added a letter from the chair of the House Appropriations Committee to the Chief Justice. Please continue to contact you legislators, concentrating now on your senators. If you have clients that are being prejudiced by these cuts, relate that case or, even better, have the client contact his or her senator.

On a more positive note, the House Judiciary Committee is scheduling its third hearing on the Uniform Transfer to Minors Act. It looks as though after many attempts, Vermont may finally adopt UTMA, leaving only South Carolina still operating under the UGMA. Updates to the Vermont Limited Liability Company Act and to probate administration have been submitted to legislative council and are being drafted for introduction.

Anyway, here’s a list of bills by title only that may be of interest to some of you. All house bill can be found here: http://legislature.vermont.gov/bill/all-house/2016

Senate bills are here: http://legislature.vermont.gov/bill/all-senate/2016

H. 3- adverse possession

H. 6- shoreland protection standards

H. 12- licensing consumer litigation funding companies

H. 13- regulating flood insurance coverage requirements

H. 23- Uniform Transfer to Minors Act
H. 53- isolation distances for potable water supplies and wastewater systems

S. 3- licensing consumer litigation funding companies

S. 9- improving Vermont's system for protecting children from abuse and neglect

S.17- 10-year statute of repose for actions arising out of improvements to real property

S.26- physician expert witnesses in medical malpractice actions

21 January 2015- Focus on the Judiciary Budget

A number of you have been asking about the judiciary budget in light of the rescissions in this fiscal year (ending 30 June) and the proposed base budget reduction in FY16 beginning 1 July. Here is a link to three letters from the Court Administrator’s Office and the Chief Justice going back to August 2014.

https://www.vtbar.org/UserFiles/files/Judiciary%20Budget%202015/1015_001.pdf

The first rescission in August was $181,335. The newest (see the January 12, 2015 letter) is for an additional $224,138, totaling a cut of $405,473. The administration is seeking a $500,000 general funds base budget reduction for next year. Here is the administration’s language in the budget adjustment bill:

Sec. 70. JUDICIARY SAVINGS

(a)      The Court Administrator will propose to the House and Senate Appropriations Committees by March 31, 2015, changes in judicial operations that will yield savings of at least $500,000 in General Funds in fiscal year 2016.  These savings shall represent a permanent and on-going reduction in expenditures.

You already know the judiciary cannot sustain cuts of this magnitude.

We already have three judicial vacancies, and the Judiciary has been required to maintain an extraordinary vacancy savings policy for court staff, as well.  There may well be another judgeship that opens before the legislative session ends. Your Board of Managers’ concern is the impact of these vacancies and cuts on access to justice for Vermonters. The Chief Justice’s letter of January 14th strongly states the court’s opposition to further cuts. Yesterday, in House Judiciary he said that this level of cuts will affect the court’s ability to meet its constitutional obligations.

Now is the time to contact your legislators and let them know of the danger inherent in these cuts. We talk a lot about access to justice and for many that means access for low income Vermonters. Right now we may be heading into a larger crisis in access for everyone. Let’s not let that happen.

Guess What day It Is?

Well, the 2015-2016 session is underway. There are some shifts in committee membership, as expected. But, the interesting thing this year is that the House Judiciary Committee has undergone a change such as I don’t ever remember. Five committee members did not seek re-election; two were defeated. The long time Chair, Bill Lippert, is now the Chair of the House Health Care Committee. Here is the current committee membership:

Rep. Maxine Jo Grad, Chair

Rep. Willem Jewett, Vice Chair

Rep. Tom Burditt, Ranking Member

Rep. Chip Conquest

Rep. Bill Frank

Rep. Martin LaLonde

Rep. Marcia Martel

Rep. Betty A. Nuovo

Rep. Barbara Rachelson

Rep. Vicki Strong

Rep. Gary Viens

With all those new faces it will no doubt take some time to bring committee members up to speed on the work they’re about to undertake. It is, of course, the committee we work with most closely. In fact, on Friday morning Chief Superior Judge Brian Grearson and Court Administrator Pat Gabel are giving an overview of the judiciary. I am presenting right after them on the VBA, the VBF, the Access to Justice Coalition, etc.

Other committee of importance are Commerce and Economic Development where we expect to see a bill updating the LLC laws. Here are its members:

Rep. Bill Botzow, Chair

Rep. Michael Marcotte, Vice Chair

Rep. Warren F. Kitzmiller, Ranking Member

Rep. Fred Baser

Rep. Steve Carr

Rep. Maureen Dakin

Rep. Jean O'Sullivan

Rep. Corey Parent

Rep. Heidi E. Scheuermann

Rep. Laura Sibilia

Rep. Valerie A. Stuart

Perhaps most importantly, especially for the judicial branch budget is the House Appropriations Committee. It looks like four new members of that committee this biennium:

Rep. Mitzi Johnson, Chair

Rep. Peter J. Fagan, Vice Chair

Rep. Kathleen C. Keenan, Ranking Member

Rep. Bob Helm

Rep. Marty Feltus

Rep. Mary S. Hooper

Rep. Diane Lanpher

Rep. Anne Theresa O'Brien

Rep. Albert "Chuck" Pearce

Rep. Kitty Beattie Toll

Rep. Matthew Trieber

As always, I’ll do my best to keep you up to date on the happenings under the golden dome; stay warm, and, thanks for reading.