Wednesday, February 10, 2016

Wednesday February 10, 2016

So I haven't reported in a few days and for that I apologize. I am just back from the ABA Mid Year Meeting where I attended my first House of Delegates meeting as a representative of our association. What a great experience. I was impressed by every aspect of the organization of the House, the sincerity and knowledge of the delegates and the seriousness with which they approach every item on the day long agenda. Many thanks to Fritz Langrock, out state delegate, who is a great mentor.

But anyway, you're probably more in what's happening in Montpelier. Las t week the four judges up for retention this year appeared before the Retention Committee. There really weren't any surprises and all four made strong arguments as to why they deserve another six year term. Judge Durkin spoke to reducing the backlog in E division cases since he came to the bench. He also let the committee know how he has sat and will continue to sit in all jurisdictions as needed to fill the needs of the judiciary. He did tell the committee about the staffing challenges the E division has faced and also responded to a question about pro se litigants in his court.

Judge Howard spoke to the committee about the eight new judges; fully 25% of the judiciary is new. That will impact operations as well as judicial college programing. He also addressed the staffing challenges and the caseload increases due mostly to opiate abuse. He did offer a suggestion about low level misdemeanors  and suggested they be diverted or deferred. The only criticism from the surveys was a comment that he could show some frustration and irritability.

Judge Toor said that working with pro se litigants is a challenge and now a large part of the job. That of course raises issues of showing compassion for the people appearing before the bench. Although a judge has to let "people tell their story" there needs to be a balance between the time that takes and the need to make  case to resolution. She talked about the pro se clinic she began in Chittenden County. She makes an effort to write in "plain english". The committee was impressed with her reaching out to jurors after the end of a trial, as well asher offering to give feedback to the lawyers. Some of the comments in her surveys went to her being very much a judge who follows or insists on following the rules. She admitted that she is critical if the parties are not prepared. There was a discussion about whether Vermont should continue to recruit "generalist judges"  and that morphed into a conversation about rotation.

Judge Mello was last; he spoke to his background and his practice before joining the bench. As this was his first retention hearing he didn't face much criticism except for one reviewer who criticized his choice of words in a sentencing hearing. Clearly, he recognized that and has been more careful about this choice of language.

Tomorrow, Thursday the 11th, the committee will hold a public hearing at 7 PM in Room 11 at the statehouse to hear from anyone who wants to be heard on any of these judges. I'll report on that after Friday. As always, thanks for reading.

Wednesday, February 3, 2016

Wednesday, February 3, 2016

Yesterday I sat through the presentation of Vermont Auditor of Accounts Doug Hoffer's report on the judiciary's collection of public defender co-pays. If you haven't seen the news reports or read the report, it essentially concluded that the judiciary is only collecting about a third of the amount ordered. His report can be found here:

As the auditor said, "to the extent you folks are looking under rocks for money", every dollar not collected impacts the state's finances.His main criticisms of the judiciary is that they don't do anything to collect what the court ordered. Now, of course, this population of defendants may not have a great ability to make payments but a court did order something to be paid. Also, he criticized the court by saying, even though it does have a collection function, they don't collect this money as it isn't theirs but goes into the public defender special fund.

The court administrator and the chief superior judge are expected to reply this afternoon. Their comments to the report can be found in the link above beginning on page 20. I'll report back after that.

Also, this afternoon the judiciary will be presenting its ideas on lightening the load. I've been assured that the VBA will be able to bring in its witnesses to address those things the  court wants to pursue. If you are members of the VBA Sections on Probate, Family, Municipal, or Workers' Comp you've already read most of that through our list serves.

Tonight is the initial meeting of the Joint Committee on Judicial Retention. They will be interviewing Judges Durkin, Howard, Mello and Toor beginning at 5PM. Again, I'll report on that tomorrow.

Thanks for reading.

Tuesday, January 26, 2016

Tuesday January 26, 2016

By now those of you in the Probate and Trust, Family Law, Municipal Law and the Worker’s Comp Sections are well aware of the Supreme Court’s proposal to “lighten the load”. The draft, dated April 2015, makes many procedural changes, especially to review of initial decisions, and was widely panned by Section members. I’ve collected all those responses and will be delivering them, without attribution to the House Judiciary Committee when it begins to consider this issue a week from Thursday.
But that’s only the beginning; there will be other hearings. Many of those Section members have offered to testify, mostly in opposition to the proposals. I’ve reached out to VTAJ who worked with us last April to stop a change in the workers’ comp are; that proposal is back again. No, I can’t explain why. BTW, if you’re not a member of any of those Sections but do practice in those areas and want to learn more, you can do two things. First, join the Section on the VBA website and second, email me and ask for a copy of the proposals. Since it is not yet a bill I can only forward you the draft that I have in email format.
You should also know the VBA is working on the call center fiasco and will do whatever it takes to see that you are not forced to waste your time using that method of communication with court staff. Once again I’ve asked for the help of the trial bar through VTAJ and hopefully together our message will be heard.
Sorry that this update is so quick and so short; more as I know more.

Thanks for reading. 

Tuesday, January 19, 2016

Tuesday, January 19, 2016

This is my first post of the adjourned session even though we at the start of week three. There has been a lot of news coming out of Montpelier relating to the suspension of a sitting senator, marijuana legalization, and re-evaluating Act 46 to raise or remove the spending cap. Just this morning the House was set to debate the raising of the cap but the bill was pulled back into the Education Committee after the Agency revealed it provided school districts with erroneous per pupil spending amounts. This isn't the first time something like this has happened. You may recall from last fall the issue with underestimating the impact of the medicare spending increases.

With all the focus on education spending and recreational marijuana a lot of the things I am following have taken a back seat. For example, I'll direct your attention to H. 206, a bill dealing with notaries public. Here's a link to the bill:
I have been working on an exemption for members of the bar and have discussed that both with the Office of the Secretary of State as well as the Chair of  the House Committee on Government Operations.I think we can accommodate those who feel the bill is necessary (and it does make some good improvements to an otherwise unregulated system) while not burdening you with requirements that seem to apply to other groups. More on this as it moves along.

Senator Peg Flory introduced S. 193, a bill that modernizes and restructures our law regarding decedents' estates. This bill is the product of an effort by your Probate and Trust Section led by Chair Bob Pratt. It's a lengthy bill as you can imagine and it will not get any attention this year. I see it as priority for us for the 2017 session. You can read it here;

The Senate and House Natural Resources Committees are both working on S. 123, an act relating to standardizing procedures for permits issued by the DEC and to make appeals from those decision son the record. The bill is "being written on the fly"; by that I mean the department is taking comments and working with interested parties to draft a good compromise. Again, I'll keep you posted. Those of you in the Environmental Law Section following the list serve discussion are already familiar with this one.

The judicial retention process is about to begin for four judges this year. Here is the tentative schedule:

Wed. 1/27 Organizational meeting; Committee meets to set hearing schedule
5:00 p.m., Room 10 and discuss preliminary matters

Wed. 2/3 First Comm. meetings with Judges 5:00 p.m., Room 10
   Hon. Thomas Durkin
   Hon. David Howard
   Hon. Robert Mello
   Hon. Helen Toor

Thurs. 2/11 Public hearing 7:00 p.m., Room 11

Wed. 2/17 Follow-up Comm. meetings with Judges 5:00 p.m., Room 10

Wed. 2/24 Comm. Meeting to deliberate, vote and make reporting 5:00 p.m., Room 10 assignments

Thurs. 3/17 Joint Assembly (if Comm. is not ready, postpone by Joint
10:30 a.m. Resolution until 3/24)

Finally, the VBA Board is continuing to work on issues relating to the call center in Burlington. Many of you have weighed in with your views on how it's working, or not working. Please, if you haven't yet commented and have something to say on this please share it with me.

Thanks for reading.