Thursday March 2, 2017

House of Delegates approves policies on array of issues important to the rule of law

The ABA House of Delegates, convening Feb. 6 in Miami during the association’s Midyear Meeting, adopted new policies on a number of pressing issues of importance to the legal profession.

ABA President Linda A. Klein, addressing the delegates, called this a “defining season” for lawyers and their commitment to the rule of law, due process and access to justice.

“There has been a lot of talk about protecting our borders,” she said. “Let me tell you what the most important border is: It’s our Constitution and the rule of law it embodies. We as lawyers are called upon to protect it.”  She emphasized the importance of avoiding sweeping bans based on religion or national origin and that lawyers must insist on the right to due process and legal representation for immigrants.

Klein also highlighted that, for a nation based on the rule of law, nothing is more important than a fair and impartial judiciary. Also on the ABA’s list of important issues are support for the Legal Services Corporation and criminal justice reform, she said.

Policy resolutions adopted by the delegates include opposing an executive order issued in January to restrict entry into the United States from seven specific countries, and urging attention to legal procedures and legal rights in crafting future executive orders regarding border security, immigration enforcement, and terrorism. Other new policies include support for action to improve the civil justice system, prevent sexual and gender-based violence, protect those with disabilities from discrimination, and provide legal assistance to veterans.

Panel discussions focused on a wide variety of topics, including the judicial nomination and confirmation process, the death penalty, public service loan forgiveness programs, the gender pay gap, immigration, environmental issues, and legal innovation.

Details of the Resolutions voted on can be found on the VBA website under the Mid Year Meeting agenda. Please contact me with any questions you may have about the actions of the ABA House of Delegates. 

Thanks for reading. 

Tuesday, February 21, 2017

The Court Administrator made her presentation this morning to the House Appropriations Committee on the judicial branch FY18 budget request. The governor recommended an increase in the current year's amount and the court is requesting an additional almost $500K. Details can be found in the documents listed under Patricia Gabel on this page

http://legislature.vermont.gov/committee/document/2018/9/Date/2-21-2017

To best understand their request and what the governor has agreed to fund, read the bottom two documents- the crosswalk and the summary. Today will no doubt be the only time the judicial branch gets the opportunity to present to House Appropriations before the budget is voted on. Of course, another opportunity exists when the bill goes to the Senate.

Tonight is the public hearing on alimony beginning at 5:30. Any family law practitioner with an interest in this issue and a position on whether to incorporate the guidelines as recommended by the Family Division Oversight Committee should try to appear. If that's not doable perhaps an email to the members of the Senate Judiciary Committee will help. Here's why you can find them; click on their names and it will bring up their emails:

http://legislature.vermont.gov/committee/document/2018/29/Date

And don't forget the public hearing on the retention of justices and judges this Thursday at 7PM in Room 11.

Thanks for reading.

Retention Hearing Thursday February 16, 2017

These are Teri Corsones' notes from last night's retention hearing on the last five superior judges. Remember that the pubilc hearing is coming up on Thursday February 23rd at 7PM in room 11 of the statehouse. 

Judge Theresa DiMauro

 

24 years on the bench; 4^th retention cycle. Judge DiMauro has had a variety of assignments since the last retention cycle, including Windsor Civil, Rutland Criminal, Washington Civil, Windham Criminal and currently a DUI Treatment Court. Many of the assignments were impacted by unusual emergency circumstances which required her to cover other courts in addition to her regular assignment. The emergencies were also during the time of the severe judge shortage, which led to many case management challenges. Filling the judicial vacancies has helped. One committee member commented she had seen Judge DiMauro on the bench doing arraignments, during a Legislators’ Day, and commended Judge DiMauro for her patience with defendants. Another encouraged her to consider an “open door” approach to  soliciting feedback from attorneys. Judge DiMauro has found the experience of covering DUI Treatment Court to be a gratifying one.

 

Judge Michael Kainen

 

A little over one year on the bench.  Currently in Caledonia, and was in Windham Civil before that. He did not have civil experience in the past, and is enjoying learning the docket. He also covers contested divorce cases. He took on a number of cases in the beginning, not realizing the amount of time needed to write lengthy opinions. He is learning the benefits of “findings days”, and  case management in general. He is now making mre decisions fro the bench. He is also gaining experience regarding pro se litigants.

 

Judge Mary Morrissey

 

Also on the bench a little over a year. Her background was criminal and some juvenile. She’s been assigned to the family docket primarily, in Chittenden and in Franklin. She is also covering TPR cases. As has been noted for a number of the “new judges”, there is a learning curve regarding case management. She appreciates the guidance that more veteran judges are always willing to give. She favors alimony guidelines.

 

Judge Gregory Rainville

 

11 years on the bench; second retention cycle. He was surprised at a number of the survey responses, especially compared to the survey responses he received in conjunction with his first retention. He thinks it would be helpful to have more regular opportunities for feedback, and suggested brief annual surveys, submitted anonymously. He is taking action to respond to the survey responses. He also urges the Legislature to consider increasing the number of law clerks.  The law clerk he works with also works with two other judges. He acknowledged that there are issues that he is working to address, including sentencing philosophies and balancing equities with black letter law.

 

Judge Kirstin Schoonover

 

Also on the bench a little over a year. She worked initially in the Family Division in the Washington Unit, and is now in the Chittenden Unit, working in the domestic and juvenile dockets.  She noted a higher level of resources available in the Chittenden Unit.   Her background was working for Legal Aid. She addressed various survey comments that she attributes to several highly contentious cases she had in the Washington Unit. She also acknowledged the learning curve involved in effective case management.

Retention Hearing February 15, 2017

These are my contemporaneous notes form last night's retention hearing of five superior judges. The remaining five will appear before the committee tonight.

Judge Allison Arms:
5 and a half years; doing criminal docket in Chittenden now.
Comments- doesn’t appear to be happy; lack of humor. Serious person- difficult to know when a lite comment is appropriate.
What surprised you the most of going on the bench? High pressure environment- difficult decisions- time challenged- unexpected things happen. 17 years as PD. When the decision is hers it’s a very different matter. Good comments about moving cases along. Alimony guidelines: would be very useful.

Judge Thomas Carlson:
16 months a judge- did domestic docket mostly. Now in Lamoille doing all cases. Loves the challenges- intellectual, people. Likes to listen to the stories, figure out the law and then decide. Comments: a new bright star in the judiciary. Recognizes he needs more time in criminal court. Reads a lot of caselaw. Still learning docket management. Judges are very helpful as mentors. Intersection of criminal, family and juvenile court can be frustrating- fundamental challenges of poverty and there’s only so much a court can do. DCF’s job is “brutal”. Juvenile court and the services around it that can make a big difference. never had a bad experience with side judges while in practice. So far a positive experience dealing with them as a judge.


Judge Cortland Corsones:
10 years on the bench. Honored and excited to do this job; remains challenging and exciting to do this job. Has learned to be a good listener rather than a talker. Pro se litigants: two pro se in family cases; how difficult is it to get the info you need to decide? Takes a more active role; gives them a chance to speak then focuses them on the factors that need to be addressed. More difficult with one attorney is in a case; more difficult for the lawyer actually. Would like more opportunity to send people to diversion. Likes the deferred sentence bill that expands deferred sentences to those over 28 years of age. In family cases he likes to try to get the parties to talk and try to work some issues out. We need alimony guidelines. Opiates: support treatment; support DCF; more resources for juvenile courts as they are falling behind.


Judge Thomas Devine:
Second retention cycle. Just because someone has a very good lawyer doesn’t mean he has a good case. 12 years a judge after 10 as a magistrate. Talked about his approach to juvenile cases. Not an easy docket; biggest fear is sending a child home and harm coming to that child. Judges need to know more than just the law- need to know about domestic violence, child abuse, etc. Some comments about taking too long to decide. Has to be less of a perfectionist. More aware of human frailties as we age. Need to step back and not let some minor thing distract you. He was asked about his concentration in juvenile courts. He has sat in general jurisdiction courts and even within a system of rotation he likes the juvenile docket. Cases in which he has taken too long are those with complicated property division issues.


Judge Rob Bent:
Senator Benning recused himself. 11 years on the bench. A small percentage of our population uses most of our judicial resources. Every time I sentence someone or remove a child I’m doing social work. Try to follow the path of least harm. Maybe has a rocky relationship with some DCF lawyers. Some affidavits from DCF set the wrong tone; he wants to get parents engaged and not beat them down. First identify the problem; try to get parents to acknowledge it and then get to explore how to fix it. There was a comment about gender bias. He takes a comment like that very seriously. Asks himself if he would decide the same way if the genders were switched. Addressed time management and case management. “Courts are the sharp edge of social work”. Comment about deciding cases at status conferences. He tried to really find if there is an issue to decide. Concerned about the legislature’s reach into the courtroom; there has to be an analysis about which new idea to implement. When everything becomes a priority nothing is a priority.

Thursday February 9, 2017- Judicial Retention interviews of Supreme Court Justices

CJ Paul Reiber:

3rd time up
No statement- offered to answer questions
Sen. Benning spoke to practice of assigning bailiffs to oral argument but the CJ said they changed the process. He asked about assigning judges if there is a recusal and the CJ explained how that's done administratively,
Sen. Flory asked about pro se; he deferred to Justice Robinson. Little civil jury work these days. Spoke about 1991 moratorium of civil jury trials due to budget pressures. Wants to energize civil docket.
Sen. Sirotkin asked if the judiciary should propose its own budget? -
Rep. Rachelson asked what is your role as CJ?
Sen. Nitka asked about probate judges; he doesn’t want to reopen that issue. Wants relaxed venue in CHINS.


Justice Eaton:

First time up for retention as a Justice; twice as superior judge .
Sen Flory asked about his sitting in trial court; it was a stark reminder of needs of the courts.
Sen Benning asked about some of the comments; some good, some negative.
Rep. Viens asked what are we doing right and wrong on opiates? Tech topic of treatment courts came up.
Rep. Troiano asked about expanding PD availability.
Sen. Nitka asked about the alimony reform discussion in Senate Judiciary. He declined to answer as they have an alimony case right now.


Justice Robinson:

On the court 5&1/2 years
Spoke to bar work in pro bono and Washington state licensed legal technician law.
Rep. Rachelson was impressed by comments that indicated that she is consistently well prepared.  The issue of limits of small claims courts was raised during a discussion about a "pro se" court. 
Rep. Viens- "great comments; you’re well respected". But he was concerned about constituent complaints that judgments are never paid from small claims actions.
Rep. Rachelson asked whether the justices should be getting more feedback?


Justice Skoglund:

20th year; she continues to love the job;  not so much the administration. Stays in contact with legislature talking about its role in updating the law.
Sen. Sirotkin was impressed by her letter. She likes going back to trial bench.  Some comments showed that she is engaging and makes people feel comfortable.
Sen. Nitka also remarked about the nice comments.

Judicial Retention Public Hearing

PRESS RELEASE

General Assembly – 115 State Street – Montpelier, VT 05602 – 802-828-2228 – Fax: 802-828-2424

FOR IMMEDIATE RELEASE

Date: Contact: Phone: Fax: E-mail:

Feb 23, 2017
Peggy Delaney 802-828-2278 802-828-2424 pdelaney@leg.state.vt.us

Public Hearing on Judicial Retention of the following Supreme Court Justices and Superior Court Judges
Supreme Court Justices: 
Justice Paul Reiber 
Justice Harold Eaton, Jr. 
Justice Beth Robinson 
Justice Marilyn Skoglund

Superior Judges:
Judge Alison Arms
Judge Robert Bent
Judge Cortland Corsones 
Judge Thomas Devine 
Judge Theresa DiMauro 
Judge Kirstin Schoonover 
Judge Mary Morrissey 
Judge Thomas Carlson 
Judge Gregory Rainville 
Judge Michael Kainen

The Joint Committee on Judicial Retention will hold a public hearing on Thursday, February 23, 2017, 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 no sooner than 30 minutes prior to the hearing. Each person will have 5 minutes to testify. The hearing will adjourn at 8:00 pm unless there are no persons requesting to testify, in which case the meeting may adjourn at 7:30 pm.

Judicial Retention Update

Here is the judicial retention schedule as agreed to by committee yesterday. 

Next Thursday, February 9^th at 4:30 the four Justices seeking retention will meet with the committee. This meeting and all other meetings with the judges will take place in Room 11.

On Wednesday February 15^th, Judges Arms, Bent, Carlson, Corsones (Cortland), and Devine will appear before the committee.

The next night, Thursday the 16^th, Judges DiMauro, Kainen, Morrissey, Rainville, and Schoonover will be interviewed.

Those three meetings will be followed by a public hearing on Thursday February 23^rd at 7PM, also in Room 11 for anyone to appear to speak about any of the justices or judges.

As always, the committee will set aside Wednesday March 1^st at 4:30 to meet with any of the judges as a follow up to anything that may come up at the public hearing.

Then on Wednesday March 15^th the committee will meet to deliberate and vote on the retention of all the judges. They hope to hold the joint assembly for the vote on Thursday March 23^rd.

Thursday February 2, 2017

This morning the judiciary proposed the following fees to the House Ways & Means Committee. The court says the fees are an attempt to standardize what is happening in different counties and that the proposal is revenue neutral and doesn't actually raise any fees:

TO:                      House Ways and Means

FROM:               Trial Court Operations, Vermont Judiciary

DATE:                February 2, 2017

RE:                      Recommended Statutory Fee Language

---

The Finance and RIS divisions have reviewed the proposed fee changes with the Court Operations division.  Our understanding is that all these proposed fee changes reflect clarification of court procedures where there is currently uncertainty and/or disparity in approach.  Given the current uncertainty, we understand that there is variation as to the current level of fee charged.  In addition, particularly regarding probate fees which have only recently been incorporated into VTADS, there is relatively little historical data that can provide guidance.  For these reasons, it is impossible to identify the number of instances that the new fee would apply to, and the net new revenue, if any, that would be raised.   However, given the relatively narrow scope of circumstances that these fees apply to, it can be assumed that any net revenue change would be small.

1.      Family – To Register and Modify a Foreign Order

a.       [new statute]: 32 V.S.A. §1431(b)(7) – Prior to the registration in Vermont of a child custody determination issued by a court of another state, there shall be paid to the clerk of the court for the benefit of the State a fee of $90.00 unless the request for registration is filed with a simultaneous motion to modify, in which event the fee for registration shall be $40.00 in addition to the fee for the motion as provided in subdivision (4) of this subsection.

2.      Probate – Motion to Reopen Estate

a.       [new statute]: 32 V.S.A. §1434(a)(29) – Motion to Reopen Estate dependent on the value of the newly found asset pursuant to (a)(1)-(8) of this subsection.

3.      Probate – Motion to Reopen any other existing Probate case

a.       [amending existing statute]: 32 V.S.A. §1431(e) - Prior to the filing of any postjudgment motion in the Civil, Criminal, Probate, or Environmental Division of the Superior Court, including motions to reopen civil suspensions and motions for sealing or expungement in the Criminal Division pursuant to 13 V.S.A. § 7602, and including motions to reopen existing probate cases, there shall be paid to the clerk of the court for the benefit of the State a fee of $90.00 except for small claims actions and estates. A filing fee of $90.00 shall be paid to the clerk of the court for a civil petition for minor settlements.

4.      Probate – Small Estate Affidavit Procedure Pursuant to Vermont Rules of Probate Procedure 80.3(h)

a.       [new statute]: 32 V.S.A. §1434(a)(30) –Petitions for Small Estate Affidavit Procedure pursuant to VRPP 80.3(h) - $50.00

5.      Probate – Request for Findings Regarding Motor Vehicle Title

a.       [new statute]: 32 V.S.A. §1434(a)(31) – Request for Findings Regarding Motor Vehicle title pursuant to 23 V.S.A. §2023(e)(2), $50.00

6.      Probate – Clarifying current language

a.       32 VSA 1434(a)(12) - Annual accounts on decedents’ estates filed for any period ending more than one year following the appointment of administrator or executor opening of the estate., $85.00.

7.      All Dockets – Miscellaneous Fee

a.       [new statute] – 32 V.S.A. §1751(b)(1)(G) For exemplified certificates, $10.00.

Quick Update February 1, 2017

The House just approved their three members to the Judicial Nominating Board. They are:

Rep. Grad of Moretown
Rep. Morris of Bennington
Rep. Myers of Essex

I should add that the Bar elected its three members; they are David Mickenburg, John Evers, and David Silver.

The Senate will also appoint three members and the governor has two appointments. 

Wednesday, February 1, 2017

Last Friday Teri and I met with Rich Cassidy on  H. 206, last year's notary bill. We went through the objections you know well but it didn't appear we made any progress. He pushed back on almost everything. This Friday we're meeting at the secretary of state's office with the other stakeholders to see if we can come together on the bill. 
Tomorrow the judiciary is appearing before the Ways & Means Committee to discuss judicial fees. That was supposed to happen this morning but got moved to Thursday. I'll let you know what I hear there.
I just left House Commerce and Economic Development where Carl Lisman presented H. 35, the uniform voidable transactions act. Tom Moody spoke for our Business Associations Committee and suggested the committee bring in a bankruptcy lawyer or, better still, a creditor's lawyer, a debtor's lawyer and a trustee. That may happen as soon as mid to late next week.
The non-profit law subcommittee has finished its work and I just sent their final version of the bill to legislative counsel for clean up and submission to the Commerce Committee. The bill has already been introduced in short form and the committee is awaiting the text. 
I'm following two bills dealing with municipalities recovering costs of remediating abandoned property at tax sales. They are H. 13 and S. 13. Each has had one hearing introducing the bill and the Senate Gov Ops committee will return to it tomorrow afternoon. 
I'm also part of a group of our Property Law Section along with the Vermont Bankers Association looking at current use and the secondary market issues of priority of liens. We had an initial phone conference last Friday and we're meeting at the bankers' offices this Friday morning. 
Also, earlier today the Senate Judiciary Committee heard from Judge Grearson on the Alimony Report of the Family Division Oversight Committee. No action was taken as this was simply an introduction. The committee will return to this issue next Thursday. 
The Judicial Retention Committee is organizing later today. I think a preliminary schedule has them meeting with the four Justices next week and the remaining eight superior judges on two nights the week later. I'll post the schedule as soon as I have it after the committee approves it. 
Let's hope the groundhog sends the right message tomorrow. 
Thanks for reading. 

Friday, January 27, 2017

The Speaker of the House just appointed the House members of the Joint Judicial Retention Committee; those members are:

Rep. Conquest of Newbury
Rep. Rachelson of Burlington
Rep. Troiano of Stannard
Rep. Viens of Newport City

Now the committee can organize and begin the process of interviewing ten superior judges as well as the four supreme court justices that are seeking retention. Every six years the committee is stressed with such a large number of judges. As many of you may know, the position or seat that a judge occupies has a six year term. The individual judge does not. In the past I can recall a number of times that a judge was still in the confirmation process and was in the retention process at the same time.

As the committee posts its scheduled times to interview the judges and justices and when the public hearings will be held I will post that here and on the VBA website so any of you who wish to be heard will know when and where to appear. Usually, these hearings are held around 5 PM with the public hearings beginning at 7 PM.

We are continuing to work on a bill from last year (H.206) dealing with regulation of notaries public. Last session we identified a number of issues with the bill and it appears the Secretary of State will be proposing a similar if not identical bill this year. I will keep you informed as this moves along. It may require effort on the part of each of us to get this right.

Have a nice weekend and, as always, thanks for reading.

Tuesday January 17, 2017

Last Friday the Senate named its members of two committees of interest to the VBA. The first, the Joint Committee on Judicial Retention will contain these four senators:
Senator Nitka
Senator Flory
Senator Benning
Senator Sirotkin
The House has not yet appointed its four members.

The Senate also appointed its members to the Legislative Committee on Judicial Rules; the members will be:
Senator Sears
Senator Balint
Senator Benning
Senator Clarkson
Again, we are still waiting the House appointments.

I'll report as soon as I have other news or updates to share. Thanks for reading.

Wednesday, January 11, 2017

The Senate named its committees last Friday and they have begun working this week. I will list the membership of both the Senate Judiciary and Appropriations Committees as I did with House committees last week. 

The Judiciary committee has exactly the same members as last session:

Sen. Sears, Chair

Sen. Benning, Vice-Chair

Sen. White

Sen. Nitka
Sen. Ashe

The Appropriations Committee, a seven member committee has these members:

Sen. Kitchel, Chair

Sen. Nitka, Vice-Chair

Sen. Sears

Sen. Starr

Sen. McCormack

Sen. Ashe

Sen. Westman

It’s important to note that three of five judiciary committee members also serve on the money committee. They are very knowledgeable of the funding needs of the judiciary as well as civil justice providers such as Vermont Legal Aid.

Back on the House side things got started quickly in the Judiciary Committee as the Tuesday morning calendar opened with a presentation by the five Supreme Court Justices on the judicial branch and “results abased accountability”. All five spoke to the committee along with Court Administrator Pat Gabel and Chief Superior Judge Brian Grearson. Their handouts to the committee can be found here: http://legislature.vermont.gov/committee/document/2018/18/Date/1-10-2017

The VBA made its presentation in the afternoon with Teri Corsones and I addressing the committee about our association, its mission and its many accomplishments in advancing access to justice for all Vermonters.

Many bills have already been introduced and many more are to come. The VBA has an interest in a number of them of course and I will be circulating those to Section Chairs for distribution and discussion on our list serves.

The Judicial Retention process will soon begin when the Speaker of the House and the Committee on Committees in the Senate each name for members of the joint committee. This year, as happens every six years, all members of the Supreme Court stand for retention. Of course Justice Dooley is not up for retention having chosen to retire on March 31^st. But there are also 10 superior judges who want to continue in office. They are:

Hon. Alison Arms

Hon. Robert Bent

Hon. Thomas Carlson

Hon. Cortland Corsones

Hon. Thomas Devine

Hon. Theresa DiMauro

Hon. Michael Kainen

Hon. Mary Morrissey

Hon. Gregory Rainville

Hon. Kirstin Schoonover

This will be a busy year for the committee members who, in addition to their standing  committee, will have to interview and conduct public hearings on these fourteen judges.

I’ll end this update here but once again ask that if any of you have questions about bills or legislative process and/or want to discuss any issue please let me know.

Thanks for reading.

Wednesday, January 4, 2017

The 2017-2018 legislative session is underway. In an unusual move newly elected Speaker Mitzi Johnson announced house committee assignments today in what was in years past mostly a day of ceremony and formalities. Perhaps this early start previews an early adjournment. I am reminded that during his campaign governor elect Scott called for a three month session. That’s no doubt out of reach but an early start to committee work could shorten the usual mid May adjournment.

The two committees of jurisdiction of most import to the VBA are Judiciary and Appropriations, as the latter controls budgeting for the judicial branch and for Vermont Legal Aid, two entities the VBA has traditionally worked to support.

Here is the membership of both:

JUDICIARY

Rep.  Maxine Grad, Chair

Rep.  Charles Conquest, Vice Chair

Rep.  Thomas Burditt, Ranking Member

Rep.  Selene Colburn

Rep.  Eileen Dickinson

Rep.  Kimberly Jessup

Rep.  Martin LaLonde

Rep.  Ruqaiyah Morris

Rep.  Barbara Rachelson

Rep.  Gary Viens

Rep.  Janssen Willhoit

APPROPRIATIONS

Rep.  Catherine Toll, Chair

Rep.  Peter J. Fagan, Vice Chair

Rep.  Kathleen C. Keenan, Ranking Member

Rep.  Maureen Dakin

Rep.  Martha Feltus

Rep.  Robert Helm

Rep.  Mary S. Hooper

             Rep.  Bernard Juskiewicz

Rep.  Diane Lanpher

             Rep.  Matthew Trieber

             Rep.  David Yacovone

This is also the first time that a VBA Board member, retired Superior Judge Ben Joseph, is a member of the House. He will serve on the Education Committee. There are a number of lawyers in the general assembly. Here’s a list which I hope is complete:

In the House Ben Joseph, Carol Ode, Sue Buckholz, Janssen Willhoit, Maxine Grad, Martin LaLonde, Sandy Haas, Janet Ancel and, in the Senate Peg Flory, Joe Benning, and Michael Sirotkin.

I’ll try my best to keep up with daily (well almost daily) reporting to you as the session moves forward. For a complete list of committee assignments follow this link:

http://legislature.vermont.gov and click on Committees.

Thanks for reading.