The Young Lawyers Division Mid Winter Thaw was a huge success this weekend as, perhaps for the first time in anyone’s memory, the temperature was above zero! Finally, it was a thaw and lots of us took advantage of the weather to attend CLEs and to eat at fine restaurants. I had the opportunity to take part in the conversation with members of the Supreme Court, the legislature and the VBA on judicial restructuring and I think the attendees got a flavor for how the bill got to where it is now and what’s remaining to be done.
On Saturday morning I moderated the debate between Sam Hoar and Brad Myerson on the issue of unanimity of civil jury verdicts. The so called “brawl in Montreal” was about what we expected and each of the presenters was well prepared and passionate in his views.
Your Board of Managers met in Montreal and among a fairly extensive agenda decided to lend its support to the following initiatives: it support the Uniform Collaborative Law Act (about to be debated at the ABA House of Delegates); it also supported the Uniform Adult Guardianship Jurisdiction Act- S. 169: it supports the Uniform Child Custody Jurisdiction and Enforcement Act- H.50; it supported the Uniform Collateral Consequences of Conviction Act at the ABA level; finally it supported the draft of the Military Parental Rights Act. That bill is now H. 533 introduced this morning. Also this morning a joint hearing of two house committees- Judiciary and General and Military Affairs- heard from Lt. Col. Ellen Abbott, Penny Benelli, Chair of the VBA Family Law Section and Amber Barber, VBA Board member. Since the committees ran out of time, I’ll add my voice expressing the Board’s support at a later time.
The governor’s legal counsel, Susanne Young met with the Board and said the Commission on Judicial Operation is on a parallel track to what’s happening in the Executive Branch. The “Challenges for Change” report is asking the legislature to permit the Executive to “manage to the budget”. The governor supports the CJ and the CJO. Certainly the “flashpoints” are the assistant judges and the probate judges. He’ll let the process play out. He thinks and hopes the legislature will act. Revenues are stuck at the 2006 level. He is looking for proposals to roll back the estate tax and to streamline the permitting process.
Later today, after the governor’s budget address, the House Judiciary Committee should take final action on H. 461, the small estates bill. I’ll let you know tomorrow if they voted it out. Tomorrow and Thursday I’ll be back in committee on restructuring. I’ll try to report on progress, or lack thereof, as soon as I can get back here to write something.
Thanks for reading.
Tuesday, January 19, 2010
Wednesday, January 13, 2010
Wednesday January 13, 2010
Wednesday was the longest day so far for the House Judiciary Committee as it devoted the entire day to the restructuring report and bill. Justice Johnson was the first witness in the chair as she reviewed the statement of the commission’s principles. Administrative Judge Davenport followed with some specific examples of what unification would mean and how it would operate. I was the last of the morning’s witnesses and had the committee’s attention for about 45 minutes. My testimony centered on the report of the VBA Board and, for the first time, the committee began to hear a different perspective on the work of the commission. As those of you that have read both the commission report and the VBA Board report, you know that they are very similar for the most part. So, my testimony focused on the probate court consolidation and the VBA Board opinion that 5 probate districts and 5 probate judges just would not deliver the service Vermonters expect and deserve.
I stated the VBA’s principles that underlay our report and they are two: we believe in full funding of the judiciary and maintain that it should not be treated as a department, agency or program of the executive branch. Secondly, we support the concept of unification of administrative management of the judicial branch- unification under the control of the Supreme Court. I opened and closed with that message. And I reminded the committee that the charge to the commission was fivefold before the additional one to find $1 million in savings in the judicial budget. I asked the committee to not allow that final add on (added one year after the commission was formed) to swallow the initial reason for its creation. The commission did find a million dollars in savings even though some of the commissioners did not like the recommendation they ultimately sent to the legislature. My message was, in short, to work on unification giving the court the management authority to make necessary changes to meet future budget challenges during future recessions. I took that position even if the savings aren’t attained in this budget year. That’s probably not likely to happen, actually as the chair of the Judiciary Committee wants to see some savings in the bill that emerges from his committee. Fine; there are possibilities for savings in other areas that wouldn’t require dismantling the probate court system as we know it.
After lunch the committee devoted its time to the probate court’s position. They heard from Attorney Ed Miller representing the probate judges as well as Judge George Belcher and Judge Toby Balivet, President of the Probate Judges’ Association. In short, they are asking the committee to reject the consolidation and maintain 14 probate courts as presently exist. Judge Belcher’s message was pretty clear- the savings from consolidation don’t equal the reduced access to justice that would result. He did comment on the language of the bill as it relates to jurisdiction of cases in a combined superior court with civil, criminal, family and probate divisions. The bill is pretty vague as to which case goes to which division and there is no guarantee that probate cases will go to the experienced probate judge. In fact, the VBA Board will be considering the language of the bill in this area and others at its meeting on Friday in Montreal. As soon as the Board settles its position, I will deliver the language to the judiciary committee and let you know what we’re offering. At least one committee member wants to retain the county based delivery of probate services even though it can be unified into a “superior” court. This may change staffing but probably not the number of judges. We’ll have to wait to see how this all works out.
Judge Balivet addressed the committee on the numbers. His calculation was that the savings the commission claims to be $1.2 million is really more like $440,000. the committee chair announced that he’s asked JFO (the Joint Fiscal Office), a non partisan office of the legislature to run the numbers. The judge made reference to the weighted caseload study the commission relied on which resulted in 6.35 probate judges. He did a salary and benefits calculation and came up with 7 probate judges; this is the minimum number the VBA Board thinks would work based on input from Bob Pratt. Again, the same committee member interested in retaining the county based system said his calculation resulted in 9. so the challenge is finding a workable solution from 5 to 14 judges and its resulting financial consequences.
I don’t know how long this process will take. I did submit names of members who responded to my emails to the Elder law and Probate and Trust Law Sections asking if they would like to testify. I hope the committee finds the time to hear from all of them. There are many others who will probably weigh in; some are: Vermont Bankers’ Association; Vermont Funeral Directors’ Association; Vermont Hospital Association; Vermont Health Care Association; Committee of Vermont Elders; Vermont Legal Aid Senior Citizens Law Project; and Vermont Adoption Council. And the there’s the Senate.
I’ll be out of the building for the next two days traveling to Montreal; attending the VBA Board meeting and taking part in a couple CLEs. I’ll report back next week. Thanks for reading.
I stated the VBA’s principles that underlay our report and they are two: we believe in full funding of the judiciary and maintain that it should not be treated as a department, agency or program of the executive branch. Secondly, we support the concept of unification of administrative management of the judicial branch- unification under the control of the Supreme Court. I opened and closed with that message. And I reminded the committee that the charge to the commission was fivefold before the additional one to find $1 million in savings in the judicial budget. I asked the committee to not allow that final add on (added one year after the commission was formed) to swallow the initial reason for its creation. The commission did find a million dollars in savings even though some of the commissioners did not like the recommendation they ultimately sent to the legislature. My message was, in short, to work on unification giving the court the management authority to make necessary changes to meet future budget challenges during future recessions. I took that position even if the savings aren’t attained in this budget year. That’s probably not likely to happen, actually as the chair of the Judiciary Committee wants to see some savings in the bill that emerges from his committee. Fine; there are possibilities for savings in other areas that wouldn’t require dismantling the probate court system as we know it.
After lunch the committee devoted its time to the probate court’s position. They heard from Attorney Ed Miller representing the probate judges as well as Judge George Belcher and Judge Toby Balivet, President of the Probate Judges’ Association. In short, they are asking the committee to reject the consolidation and maintain 14 probate courts as presently exist. Judge Belcher’s message was pretty clear- the savings from consolidation don’t equal the reduced access to justice that would result. He did comment on the language of the bill as it relates to jurisdiction of cases in a combined superior court with civil, criminal, family and probate divisions. The bill is pretty vague as to which case goes to which division and there is no guarantee that probate cases will go to the experienced probate judge. In fact, the VBA Board will be considering the language of the bill in this area and others at its meeting on Friday in Montreal. As soon as the Board settles its position, I will deliver the language to the judiciary committee and let you know what we’re offering. At least one committee member wants to retain the county based delivery of probate services even though it can be unified into a “superior” court. This may change staffing but probably not the number of judges. We’ll have to wait to see how this all works out.
Judge Balivet addressed the committee on the numbers. His calculation was that the savings the commission claims to be $1.2 million is really more like $440,000. the committee chair announced that he’s asked JFO (the Joint Fiscal Office), a non partisan office of the legislature to run the numbers. The judge made reference to the weighted caseload study the commission relied on which resulted in 6.35 probate judges. He did a salary and benefits calculation and came up with 7 probate judges; this is the minimum number the VBA Board thinks would work based on input from Bob Pratt. Again, the same committee member interested in retaining the county based system said his calculation resulted in 9. so the challenge is finding a workable solution from 5 to 14 judges and its resulting financial consequences.
I don’t know how long this process will take. I did submit names of members who responded to my emails to the Elder law and Probate and Trust Law Sections asking if they would like to testify. I hope the committee finds the time to hear from all of them. There are many others who will probably weigh in; some are: Vermont Bankers’ Association; Vermont Funeral Directors’ Association; Vermont Hospital Association; Vermont Health Care Association; Committee of Vermont Elders; Vermont Legal Aid Senior Citizens Law Project; and Vermont Adoption Council. And the there’s the Senate.
I’ll be out of the building for the next two days traveling to Montreal; attending the VBA Board meeting and taking part in a couple CLEs. I’ll report back next week. Thanks for reading.
Tuesday, January 12, 2010
Tuesday January 12, 2010
This morning the House Commerce Committee heard testimony on H. 480 a bill that seemed simple on it face but as always happens quickly got much more complicated. The bill as written would require that articles of termination of an LLC include a statement that all members of the LLC have received written notice by certified mail. OK; that’s easy enough to understand. The bill’s sponsor related a story of a constituent who was a member of an LLC that was terminated without notice to him. And the fix seemed simple in the bill as drafted. But enter the Office of the Secretary of State who was concerned that they might be put in a place of having to verify the “proof” that a member was notified. That they didn’t want to do nor could they do. They were, however, willing to amend their termination form to include a check off that notice had been provided to members.
Well the committee went round and round with alternative language dealing with certified mail; return receipt requested; first class mail; proof of receipt; proof of mailing, etc. I don’t know where it will end or what it will say when it’s over. They may in fact return to it later today. But in the usual legislative fashion something that seemed simple got more and more complicated as the morning went on. I’ll let you know what the bill looks like when it hits the House floor. But not to worry; there’s still the Senate.
On the restructuring front, tomorrow will be a big day in House Judiciary. After Justice Johnson and Judge Davenport testify before the committee I’ll be speaking to them about the VBA Board position. The afternoon schedule right now shows Judge Belcher and Judge Balivet on the witness list. I also recall that Assistant Judge Colvin from Bennington County will be testifying late tomorrow or Thursday. So the next two days will open the committee to some alternative approaches to the report of the Commission. And for those of you headed to Montreal for the Young lawyer’s Division Thaw weekend, please join us at 4:15 on Friday after the Professionalism CLE to hear more about restructuring and to share your views with members of the Commission and members of the legislature.
I’ll post something tomorrow after the dust settles. Thanks for reading.
Well the committee went round and round with alternative language dealing with certified mail; return receipt requested; first class mail; proof of receipt; proof of mailing, etc. I don’t know where it will end or what it will say when it’s over. They may in fact return to it later today. But in the usual legislative fashion something that seemed simple got more and more complicated as the morning went on. I’ll let you know what the bill looks like when it hits the House floor. But not to worry; there’s still the Senate.
On the restructuring front, tomorrow will be a big day in House Judiciary. After Justice Johnson and Judge Davenport testify before the committee I’ll be speaking to them about the VBA Board position. The afternoon schedule right now shows Judge Belcher and Judge Balivet on the witness list. I also recall that Assistant Judge Colvin from Bennington County will be testifying late tomorrow or Thursday. So the next two days will open the committee to some alternative approaches to the report of the Commission. And for those of you headed to Montreal for the Young lawyer’s Division Thaw weekend, please join us at 4:15 on Friday after the Professionalism CLE to hear more about restructuring and to share your views with members of the Commission and members of the legislature.
I’ll post something tomorrow after the dust settles. Thanks for reading.
Monday, January 11, 2010
January 11, 2010
I attended the House Judiciary Committee hearing Friday morning on H. 461 and heard the testimony of one of its sponsors, Rep. Anne Donahue of Northfield. She is attempting to amend 14 VSA 1902, the small estates section. She related the story of the untimely death of her 22 year old nephew, unmarried and without children. Even though his estate was minimal, the small estate process was unavailable to his parents because he left neither a surviving spouse or children. H. 461 would amend this section by expanding its applicability by adding to the present law “the deceased left a surviving parent or parents but no spouse or child. It continues the limitation of applicability to estates with no real estate and valued at less that $10,000. There were really no questions from committee members and no objections either by me or the Vermont Bankers’ Association, the only others in the room at the time.
Although the committee has not yet posted this week’s schedule, I expect to be able to present the VBA Board’s position on judicial restructuring this Wednesday. As of last week, the plan, as I understood it, was that the committee is going to hear from Justice Johnson, Judge Davenport and me on Wednesday morning. I’ll keep you posted.
I thought you might be interested in the following quote concerning restructuring from the Governor during last week’s state of the state address:
Access to our courts and the timely resolution of cases is one of the
fundamental obligations of state government. Ensuring that Vermont’s judicial
system is financially sustainable is of utmost importance. In the past year, the
Judiciary has pitched in to help meet our fiscal challenges. While furloughs
and occasional Court closings were necessary, they are not acceptable longterm
solutions.
The recommendations of the Commission on Judicial Operations provide a
blueprint for a stronger and more affordable system of justice. I know some
ideas are controversial; some changes depart from long-held traditions; and the
necessary rebalancing will affect certain districts and constituencies. But like
all of our decisions this year, narrow interests must take a backseat to the
broader public interest. The General Assembly must give these
recommendations due consideration, finding in them, as I have, a path forward.
Although the committee has not yet posted this week’s schedule, I expect to be able to present the VBA Board’s position on judicial restructuring this Wednesday. As of last week, the plan, as I understood it, was that the committee is going to hear from Justice Johnson, Judge Davenport and me on Wednesday morning. I’ll keep you posted.
I thought you might be interested in the following quote concerning restructuring from the Governor during last week’s state of the state address:
Access to our courts and the timely resolution of cases is one of the
fundamental obligations of state government. Ensuring that Vermont’s judicial
system is financially sustainable is of utmost importance. In the past year, the
Judiciary has pitched in to help meet our fiscal challenges. While furloughs
and occasional Court closings were necessary, they are not acceptable longterm
solutions.
The recommendations of the Commission on Judicial Operations provide a
blueprint for a stronger and more affordable system of justice. I know some
ideas are controversial; some changes depart from long-held traditions; and the
necessary rebalancing will affect certain districts and constituencies. But like
all of our decisions this year, narrow interests must take a backseat to the
broader public interest. The General Assembly must give these
recommendations due consideration, finding in them, as I have, a path forward.
Thursday, January 7, 2010
Thursday January 7, 2009
I’m sorry I didn’t get back here yesterday to post anything about the restructuring testimony. It actually lasted all day and continued into early today. I’ll try to bring you all up to speed in this post. Wednesday opened with a joint meeting of three house committees: judiciary, government operations, and appropriations. The Speaker of the House, Shap Smith, welcomed legislators and commission members and advised that the commission’s work will be a priority for the house. He sees the judiciary at a critical point in its history. In fact, the House Judiciary Committee has committed to working on it every Wednesday and Thursday until the bill passes the House and moves over to the Senate.
The commission members present then outlined the report to the assembled committees. The CJ opened with some general comments concluding with “our funding issues threaten the civility of the state of Vermont and access to justice”. Justice Johnson followed by saying that unifying the court system will provide better service at less cost and increase access to justice. She talked about the e-filing system which will be rolled out over the next three to five years and the use of pro se “service centers” with a trained employee ready to help self represented parties. She predicted a $1.2 million savings by reducing middle management and shifting resources. VBA President Eileen Blackwood charted the staffing of a unified court as compared to the state-county hybrid system we now use. Trial Judges Grearson and Manley then outlined the proposals for changing the probate courts and the jurisdiction of side judges respectively. Court Administrator Bob Greemore went through some budget numbers, the most significant of which may be that the five probate judges that remain will be paid at the level of a magistrate or hearing officer and not as a superior judge.
The House Judiciary Committee continued with the report of the commission in its afternoon session. By the way, the newest member of that committee is Barre Town Representative tom Koch, a long time VBA member. Tom replaced Peg Flory, now a senator. The afternoon presentation started with commission member Dick Marron, a former representative from Stowe who talked about side judges and county budgets. Tom actually asked why the commission didn’t recommend the state takeover of county courthouses. Clearly this would only add yet another landmine in the path of restructuring. Tom also questioned the cost of keeping the Grand Isle and Essex courts open with one staff person in each location. Then Justice Dooley took over and ‘walked” the committee through the bill outlining where in the bill is the language implementing the major revisions of the report.
The committee continued into Thursday as it began working up a schedule for how to proceed. It appears that next Wednesday, they want to hear from Justice Johnson and the underlying principles the commission adopted. She will be followed by testimony from Administrative Judge Amy Davenport and then I will present the VBA Board position on the commission’s recommendations. On Thursday, the committee will try to schedule time for the probate judges and the side judges to present testimony. The National Center for State Courts would like to present at the end of January. Other dates remain to be filled in and I’ll post that as soon as I know what’s planned. Tom Koch asked for testimony as to why the environmental court is not part of the restructuring recommendation. The chair concluded today’s session by saying that anything that comes out of his committee “must save $1 million”.
That same committee wants to spend some time on a military parental rights act which was mentioned by General Dubie in his briefing of the legislature on Tuesday morning. That should happen during the week of the 18th. There is no bill yet but it was drafted by the VTANG in collaboration with some members of our family Law Section. The VBA Board will be reviewing it at its meeting in Montreal next week.
Just to prove that restructuring isn’t the only show in town, yesterday Carl Lisman, one of our uniform law commissioners, spent the afternoon with the House Commerce Committee discussing changes to UCC Article 7 and to the Uniform Common Interest Ownership Act. I wasn’t there as I was across the hall doing, what else, restructuring! Anyway it appears that this is just getting started also; I’m not sure yet whether to expect action this year or next. Also today Willem Jewett introduced H. 476, a bill dealing with real property. Here is both the link and its statement of purpose:
http://www.leg.state.vt.us/docs/2010/Bills/Intro/H-476.pdf
Statement of purpose: This bill proposes a number of changes related to the
laws governing real property. The bill proposes to:
(1) clarify that a power of attorney with respect to a real estate transaction
that is validly executed in another state is also valid in Vermont;
(2) add proper witnessing to the list of defects that is cured if an instrument
has been recorded for at least 15 years;
(3) codify the Vermont supreme court’s decision in Nelson v. Russo, 956
A.2d 1117 (2008), that in order to renew a court judgment, a plaintiff must file
a new and independent action instead of seeking to reopen the original action;
(4) require that recording of a copy of the complaint in actions to foreclose
judgment liens be in order for the action to extend the duration of the lien; and
(5) establish a 15-year limitations period after which enforcement actions
or other proceedings may not be brought relating to the failure to obtain or
comply with the terms or conditions of required highway permits, including
so-called “curb cut permits.”
On Friday morning, Rep. Donahue will present H. 461, a bill that would broaden the range of estates which can qualify for treatment as small estates by permitting the probate court to hold small estate proceedings for a decedent who dies with surviving parents but without a surviving spouse or child.
Here’s the link to that bill: http://www.leg.state.vt.us/docs/2010/bills/Intro/H-461.pdf
I’ll report back after the 10:30 hearing tomorrow.
Thanks for reading.
The commission members present then outlined the report to the assembled committees. The CJ opened with some general comments concluding with “our funding issues threaten the civility of the state of Vermont and access to justice”. Justice Johnson followed by saying that unifying the court system will provide better service at less cost and increase access to justice. She talked about the e-filing system which will be rolled out over the next three to five years and the use of pro se “service centers” with a trained employee ready to help self represented parties. She predicted a $1.2 million savings by reducing middle management and shifting resources. VBA President Eileen Blackwood charted the staffing of a unified court as compared to the state-county hybrid system we now use. Trial Judges Grearson and Manley then outlined the proposals for changing the probate courts and the jurisdiction of side judges respectively. Court Administrator Bob Greemore went through some budget numbers, the most significant of which may be that the five probate judges that remain will be paid at the level of a magistrate or hearing officer and not as a superior judge.
The House Judiciary Committee continued with the report of the commission in its afternoon session. By the way, the newest member of that committee is Barre Town Representative tom Koch, a long time VBA member. Tom replaced Peg Flory, now a senator. The afternoon presentation started with commission member Dick Marron, a former representative from Stowe who talked about side judges and county budgets. Tom actually asked why the commission didn’t recommend the state takeover of county courthouses. Clearly this would only add yet another landmine in the path of restructuring. Tom also questioned the cost of keeping the Grand Isle and Essex courts open with one staff person in each location. Then Justice Dooley took over and ‘walked” the committee through the bill outlining where in the bill is the language implementing the major revisions of the report.
The committee continued into Thursday as it began working up a schedule for how to proceed. It appears that next Wednesday, they want to hear from Justice Johnson and the underlying principles the commission adopted. She will be followed by testimony from Administrative Judge Amy Davenport and then I will present the VBA Board position on the commission’s recommendations. On Thursday, the committee will try to schedule time for the probate judges and the side judges to present testimony. The National Center for State Courts would like to present at the end of January. Other dates remain to be filled in and I’ll post that as soon as I know what’s planned. Tom Koch asked for testimony as to why the environmental court is not part of the restructuring recommendation. The chair concluded today’s session by saying that anything that comes out of his committee “must save $1 million”.
That same committee wants to spend some time on a military parental rights act which was mentioned by General Dubie in his briefing of the legislature on Tuesday morning. That should happen during the week of the 18th. There is no bill yet but it was drafted by the VTANG in collaboration with some members of our family Law Section. The VBA Board will be reviewing it at its meeting in Montreal next week.
Just to prove that restructuring isn’t the only show in town, yesterday Carl Lisman, one of our uniform law commissioners, spent the afternoon with the House Commerce Committee discussing changes to UCC Article 7 and to the Uniform Common Interest Ownership Act. I wasn’t there as I was across the hall doing, what else, restructuring! Anyway it appears that this is just getting started also; I’m not sure yet whether to expect action this year or next. Also today Willem Jewett introduced H. 476, a bill dealing with real property. Here is both the link and its statement of purpose:
http://www.leg.state.vt.us/docs/2010/Bills/Intro/H-476.pdf
Statement of purpose: This bill proposes a number of changes related to the
laws governing real property. The bill proposes to:
(1) clarify that a power of attorney with respect to a real estate transaction
that is validly executed in another state is also valid in Vermont;
(2) add proper witnessing to the list of defects that is cured if an instrument
has been recorded for at least 15 years;
(3) codify the Vermont supreme court’s decision in Nelson v. Russo, 956
A.2d 1117 (2008), that in order to renew a court judgment, a plaintiff must file
a new and independent action instead of seeking to reopen the original action;
(4) require that recording of a copy of the complaint in actions to foreclose
judgment liens be in order for the action to extend the duration of the lien; and
(5) establish a 15-year limitations period after which enforcement actions
or other proceedings may not be brought relating to the failure to obtain or
comply with the terms or conditions of required highway permits, including
so-called “curb cut permits.”
On Friday morning, Rep. Donahue will present H. 461, a bill that would broaden the range of estates which can qualify for treatment as small estates by permitting the probate court to hold small estate proceedings for a decedent who dies with surviving parents but without a surviving spouse or child.
Here’s the link to that bill: http://www.leg.state.vt.us/docs/2010/bills/Intro/H-461.pdf
I’ll report back after the 10:30 hearing tomorrow.
Thanks for reading.
Tuesday, January 5, 2010
Opening Day
The opening gavel has fallen and the session has begun its 16 week journey to the beginning of the campaign season. Although today is mostly about seeing friends and catching up, a number of bills were introduced and sent off to committees of jurisdiction where their fate is anything but clear. What I mean is that this session is all about the budget and I wonder how much time there will be to devote to other issues. In the second year of a biennium, the deadlines are earlier and harder. The so-called “crossover” date is usually about the end of February when the Town Meeting recess begins. Crossover means that, without a rules’ exemption, bills must be on the Notice Calendar by that date in order to guarantee consideration by the other chamber. There are exceptions, of course. That doesn’t apply to “money” bills- the appropriations, transportation, capital, or pay acts, or to any bill that the Rules Committee exempts. Anyway, with so many bills still pending from the first year of this biennium, plus those being introduced now, there will be too much to do in not enough time.
But here is a sampling of some of the bills of interest to the VBA. Of course, the most significant is the judicial restructuring bill, H.470. It is a 160 page bill that must be analyzed closely and will no doubt be scrutinized by at least six committees of the House and Senate. Representatives Grad and Donahue have introduced H. 461, a bill that would broaden the range of estates which can qualify for treatment as small estates by permitting the probate court to hold small estate proceedings for a decedent who dies with surviving parents but without a surviving spouse or child.
On the Senate side, Senator Campbell introduced S. 165 a bill that would eliminate the statute of limitations for felonies! I’ll send this to our Criminal Law Section for their discussion. He also introduced S. 169, the uniform adult guardianship and protective proceedings act. The statement of purpose is:
This bill proposes to enact the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act in Vermont. The act establishes which state has jurisdiction to make the initial guardianship decision, provides for transfer of guardianship cases between jurisdictions, and allows recognition of an out-of-state guardian’s authority to deal with issues in the state on a limited basis.
Senator Illuzzi has introduced two bills that may be of interest to some of you. The first, S. 172, makes some changes to the uniform common interest ownership act. The statement of purpose of the bill is as follows:
This bill proposes the following changes to the uniform common interest ownership act: (1) The bill proposes to eliminate the creation of statutory liens for fines imposed against a unit owner. Statutory liens would continue for unpaid assessments against the unit. (2) The bill proposes to require the association to notify the unit owner of alien against the unit at least 30 days prior to foreclosing on the lien, and to notify the owner of the amount of unpaid assessments the owner needs to pay in order to discharge the lien. Failure to provide the required notice prohibits the association from filing a foreclosure action against the unit. (3) The bill requires the association to discharge the lien within 30 days after the unit owner pays the unpaid assessments, and to notify the unit owner of the discharge within ten days. Failure to discharge the lien in a timely fashion results in civil liability against the association in the amount of $25.00 per day, up to a maximum of $5,000.00 in damages.
His other bill is S. 155 which would permit a judge to hold another judicial elective office. This is in response to an issue involving one of the Essex County side judges who is also a probate judge and who ran for a position as selectman! This bill would apply retroactively if passed as written!
Finally, Senator Nitka has introduced S. 227, the uniform child custody jurisdiction and enforcement act. This bill accompanies H. 50, introduced last year and still pending in the House Judiciary Committee. The purpose of both bills is stated as follows:
This bill proposes to revise the law on child custody jurisdiction in light of federal enactments and inconsistent case law among various jurisdictions. The bill provides standards for which states can exercise original jurisdiction over a child custody determination, enunciates a standard of continuing jurisdiction, and clarifies modification jurisdiction. Other aspects of the bill harmonize the law on simultaneous proceedings, clean hands, and forum non conveniens. The bill also proposes to provide for a remedial process to enforce interstate child custody and visitation determinations. In doing so, it brings a uniform procedure to the law of interstate enforcement.
The VBA Board will be considering supporting this bill at its next meeting in Montreal next week. The Family Law Section has indicated its support for it.
Finally, Senator Cummings, Chair of the Senate Finance Committee introduced S. 173, a bill that would make technical corrections to the newly adopted Vermont Trust Code.
I’ll be back to you tomorrow after the Commission on Judicial Operation makes its presentation to, now, three House Committees- Judiciary, Government Operations, and Appropriations. That may take all day. It is scheduled for 9 to noon and again after the House adjourns for the day. (The House goes into session at 1Pm on Wednesdays
But here is a sampling of some of the bills of interest to the VBA. Of course, the most significant is the judicial restructuring bill, H.470. It is a 160 page bill that must be analyzed closely and will no doubt be scrutinized by at least six committees of the House and Senate. Representatives Grad and Donahue have introduced H. 461, a bill that would broaden the range of estates which can qualify for treatment as small estates by permitting the probate court to hold small estate proceedings for a decedent who dies with surviving parents but without a surviving spouse or child.
On the Senate side, Senator Campbell introduced S. 165 a bill that would eliminate the statute of limitations for felonies! I’ll send this to our Criminal Law Section for their discussion. He also introduced S. 169, the uniform adult guardianship and protective proceedings act. The statement of purpose is:
This bill proposes to enact the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act in Vermont. The act establishes which state has jurisdiction to make the initial guardianship decision, provides for transfer of guardianship cases between jurisdictions, and allows recognition of an out-of-state guardian’s authority to deal with issues in the state on a limited basis.
Senator Illuzzi has introduced two bills that may be of interest to some of you. The first, S. 172, makes some changes to the uniform common interest ownership act. The statement of purpose of the bill is as follows:
This bill proposes the following changes to the uniform common interest ownership act: (1) The bill proposes to eliminate the creation of statutory liens for fines imposed against a unit owner. Statutory liens would continue for unpaid assessments against the unit. (2) The bill proposes to require the association to notify the unit owner of alien against the unit at least 30 days prior to foreclosing on the lien, and to notify the owner of the amount of unpaid assessments the owner needs to pay in order to discharge the lien. Failure to provide the required notice prohibits the association from filing a foreclosure action against the unit. (3) The bill requires the association to discharge the lien within 30 days after the unit owner pays the unpaid assessments, and to notify the unit owner of the discharge within ten days. Failure to discharge the lien in a timely fashion results in civil liability against the association in the amount of $25.00 per day, up to a maximum of $5,000.00 in damages.
His other bill is S. 155 which would permit a judge to hold another judicial elective office. This is in response to an issue involving one of the Essex County side judges who is also a probate judge and who ran for a position as selectman! This bill would apply retroactively if passed as written!
Finally, Senator Nitka has introduced S. 227, the uniform child custody jurisdiction and enforcement act. This bill accompanies H. 50, introduced last year and still pending in the House Judiciary Committee. The purpose of both bills is stated as follows:
This bill proposes to revise the law on child custody jurisdiction in light of federal enactments and inconsistent case law among various jurisdictions. The bill provides standards for which states can exercise original jurisdiction over a child custody determination, enunciates a standard of continuing jurisdiction, and clarifies modification jurisdiction. Other aspects of the bill harmonize the law on simultaneous proceedings, clean hands, and forum non conveniens. The bill also proposes to provide for a remedial process to enforce interstate child custody and visitation determinations. In doing so, it brings a uniform procedure to the law of interstate enforcement.
The VBA Board will be considering supporting this bill at its next meeting in Montreal next week. The Family Law Section has indicated its support for it.
Finally, Senator Cummings, Chair of the Senate Finance Committee introduced S. 173, a bill that would make technical corrections to the newly adopted Vermont Trust Code.
I’ll be back to you tomorrow after the Commission on Judicial Operation makes its presentation to, now, three House Committees- Judiciary, Government Operations, and Appropriations. That may take all day. It is scheduled for 9 to noon and again after the House adjourns for the day. (The House goes into session at 1Pm on Wednesdays
Monday, January 4, 2010
The Legislature Returns
I did promise you that I’d be back to posting when the legislature returns and they’re back tomorrow! You’ve no doubt been reading the news about the state’s budget woes which are going to continue for at least two more fiscal years if not beyond that. In this session there’s Vermont Yankee to deal with along with education funding, highway and bridge funding, health care, etc. And, of course, we’re concerned about the report of the Commission on Judicial Operation. I hope that you’ve all had the chance to read it as well as the report of the VBA Board of Managers in response. Our report can be found here: http://www.vtbar.org/Upload%20Files/WebPages/VBA%20Report%20on%20the%20Judicial%20Commisssion%2012%2028%2009%20FINAL.pdf. It will also be printed in its entirety in the next issue of the VBA Journal.
First and foremost the VBA Board supports full funding of the judiciary as it always has. It also understands and supports a unified management structure of the judicial branch. Where the Board disagrees with the Commission is mainly in the recommendations about the probate court. The VBA Board has serious concerns about the changes the Commission has recommended and will work to oppose that portion of the bill when it is presented.
We expect that the bill will originate as a House bill. Although I have not yet seen it, I know that the two House committees are meeting jointly this Wednesday at 9:30 to hear a presentation on the report. The two committees of jurisdiction are the House Judiciary Committee and the House Government Operations Committee. I have already shared the VBA position with the chairs of these committees as well as their counterparts in the Senate and the appropriations committees in both chambers. It’s time for you to become involved in this if you have not yet been. Talk with your legislators about the changes; how you think they’ll affect the courts you appear in most often; share your ideas on better and more efficient ways to deliver justice. The discussion will be long before the session ends in May. Just because there is a Commssion report and a VBA report doesn’t mean that more isn’t coming. I know the association representing the probate judges has retained a lobbying firm to press their case. I expect that the assistant judges will have representation to argue for the retention (or the expansion) of their judicial role. There will be lots of moving parts to this and, if a bill does in fact pass and go the governor (if, I mean if) it may not look like anything that’s on the table right now. Sometimes, it looks so different that the proponents of January end up being the opponents in May. What a fun time of year.
Anyway a lot more is happening here at the VBA. our Collaborative Law, Family Law, Criminal Law, Elder Law, Probate Law Sections have all been working on proposed legislation that is being considered by the VBA Board of Managers for possible introduction in 2010. A special subcommittee of the Business Association Law Section is working on a rewrite of our non profit corporation statute. This is something that will take until the 2011 session.
I’ll report back after the opening tomorrow and again after the Wednesday morning hearing.
Thanks for reading.
First and foremost the VBA Board supports full funding of the judiciary as it always has. It also understands and supports a unified management structure of the judicial branch. Where the Board disagrees with the Commission is mainly in the recommendations about the probate court. The VBA Board has serious concerns about the changes the Commission has recommended and will work to oppose that portion of the bill when it is presented.
We expect that the bill will originate as a House bill. Although I have not yet seen it, I know that the two House committees are meeting jointly this Wednesday at 9:30 to hear a presentation on the report. The two committees of jurisdiction are the House Judiciary Committee and the House Government Operations Committee. I have already shared the VBA position with the chairs of these committees as well as their counterparts in the Senate and the appropriations committees in both chambers. It’s time for you to become involved in this if you have not yet been. Talk with your legislators about the changes; how you think they’ll affect the courts you appear in most often; share your ideas on better and more efficient ways to deliver justice. The discussion will be long before the session ends in May. Just because there is a Commssion report and a VBA report doesn’t mean that more isn’t coming. I know the association representing the probate judges has retained a lobbying firm to press their case. I expect that the assistant judges will have representation to argue for the retention (or the expansion) of their judicial role. There will be lots of moving parts to this and, if a bill does in fact pass and go the governor (if, I mean if) it may not look like anything that’s on the table right now. Sometimes, it looks so different that the proponents of January end up being the opponents in May. What a fun time of year.
Anyway a lot more is happening here at the VBA. our Collaborative Law, Family Law, Criminal Law, Elder Law, Probate Law Sections have all been working on proposed legislation that is being considered by the VBA Board of Managers for possible introduction in 2010. A special subcommittee of the Business Association Law Section is working on a rewrite of our non profit corporation statute. This is something that will take until the 2011 session.
I’ll report back after the opening tomorrow and again after the Wednesday morning hearing.
Thanks for reading.
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