As promised, here’s a quick summary of the public hearing on the retention of Judges Durkin, Howard, and Toor. Thirteen witnesses spoke to 7 of 8 members of the committee; the hearing lasted about one hour. Ten of the thirteen supported the retention of Judge Toor while two of those opposed it. They were litigants (well, at least one was) who questioned her judicial demeanor and both said she had prevented them from presenting evidence. There was no real detail and no questions were asked by committee members.
Those speaking in favor of Judge Toor’s retention were: Ruth Whitney, the Addison court officer; Rob Keiner; Betsy Gregory, a GAL at family court in Chittenden County; Tom Heilman; Thomas Powell, a friend and neighbor; Bill Sorrell, who related the unanimous support of his staff attorneys; Barbara Watts, the Washington Superior Court officer; and finally retired Justice James Morse.
Ruth Whitney, Hal Miller, Chris Killian, and Kathleen Lott, a docket clerk at E court spoke favorably in support of Judge Durkin. Only Justice Morse put in a good word for judge Howard who otherwise sat quietly through the evening without hearing his name mentioned. In short, an uneventful night in the process to retain these judges. Next Wednesday they’ll return, in theory to answer any issues raised last night. I expect another quick evening. I’ll report next week.
The Senate Judiciary Committee has decided to hear testimony on S. 279 next Friday. Here’s the bill in its entirety:
BILL AS INTRODUCED S.279
1 S.279
2 Introduced by Senator Campbell
3 Referred to Committee on
4 Date:
5 Subject: Court procedure; conduct of trial; verdict in civil actions
6 Statement of purpose: This bill proposes that in a civil action, the verdict or
7 finding of a number of jurors equal to at least 80 percent of the jurors serving
8 on a jury shall constitute the verdict or finding of the jury.
9 An act relating to nonunanimous jury verdicts in civil actions
10 It is hereby enacted by the General Assembly of the State of Vermont:
11 Sec. 1. 12 V.S.A. § 1950 is added to read:
12 § 1950. NUMBER OF JURORS REQUIRED FOR A VERDICT IN A CIVIL
13 ACTION
14 In a civil action, the verdict or finding of a number of jurors equal to at least
15 80 percent of the jurors serving on a jury shall constitute the verdict or finding
16 of the jury.
17 Sec. 2. EFFECTIVE DATE
18 This act shall take effect on July 1, 2010.
I am working with the Chair, Senator Sears to get Sam Hoar and Brad Myerson to re-do their presentation in Montreal on the pros and cons of non unanimous civil jury verdicts.
Friday, February 12, 2010
Thursday, February 11, 2010
February 11, 2010- Part 2
Because I made you wait so long for a blog post I’m posting twice today. Since I’ll be in Montpelier waiting for the 7 PM public hearing on the retention of Judges Durkin, Howard and Toor, I have some time on my hands. This morning I ended my post by saying that I was off to the House Judiciary Committee to present the VBA’s position on units, jurisdiction, and venue in a unified court system. But considering the importance of these issues and that fact the Chief Justice was presenting the Court’s position I was joined by VBA President Eileen Blackwood, also a member of the Commission on Judicial Operation. We testified jointly to the major points the VBA Board wanted the committee to hear. Those points are: the divisions should be jurisdictional. The units (we call for 12) should be county based and created by statute and not rule. (The proposal is to join Grand Isle with Franklin and Essex with Caledonia.) we call for hearings to be held in the two smaller counties. We are also calling for maintaining the existing venue rules. One compromise put on the table by the Administrative Judge is the creation of a transitional rules committee to deal with the myriad of issues that arise from the unification. The VBA has asked that it select the attorney members. Any such committee should include five attorneys, those with experience in civil, criminal, family, probate, and with experience in litigation involving self represented litigants.
I’m not certain where this will go as the committee ran out of time and didn’t react to or discuss what they heard this morning. But the pace is definitely picking up. The House Government Operations Committee put me on notice that it wants to work on the bill next Wednesday and Thursday. Those are the days that Judiciary reserved for its work time. So it appears that Judiciary may have heard from all the witnesses it feels it needs; they’re now shifting to deliberation and mark up. One issue was rescheduled from today to Tuesday though. On Tuesday, after adjournment from the floor, Judge Manley and Judge Belcher will testify. We will continue to stay with this until it’s done.
Tomorrow I’ll post something early reporting on tonight’s hearing. Thanks for reading.
I’m not certain where this will go as the committee ran out of time and didn’t react to or discuss what they heard this morning. But the pace is definitely picking up. The House Government Operations Committee put me on notice that it wants to work on the bill next Wednesday and Thursday. Those are the days that Judiciary reserved for its work time. So it appears that Judiciary may have heard from all the witnesses it feels it needs; they’re now shifting to deliberation and mark up. One issue was rescheduled from today to Tuesday though. On Tuesday, after adjournment from the floor, Judge Manley and Judge Belcher will testify. We will continue to stay with this until it’s done.
Tomorrow I’ll post something early reporting on tonight’s hearing. Thanks for reading.
February 11, 2010
I know I promised a report upon my return from the ABA Mid Year Meeting but I’ve spent two full days in the statehouse leaving me neither the time nor the energy to post something. For that I apologize and will try to get you up to date right now. It’s early Thursday morning (6:09 to be exact) and I finally have some quiet time to report to you. I returned to find the House Judiciary Committee working on H. 590, the bill that would mandate mediation in foreclosure proceedings. For those of you that may bring or defend these cases I recommend reading this bill. A number of witnesses have testified favorably on the bill while only a few have raised concerns. They include Josh Lobe, Chris D’Elia of the Vermont Bankers Association and the Lamoille Superior Court Clerk Kathy Hobart. Judges Cohen and Crawford support the practice of mediation and Judge Cohen went a bit further and proposed a sort of pre-filing certification. This could cover telling a plaintiff what he needs to bring suit, e.g., good title, the note, etc. Judge Crawford said that mediation always settles the case. He called for mediators to be lawyers, as the bill would require. His proposal would be to require mediation unless a court orders otherwise. The real issue here is the added burden and costs to the plaintiff and the obligations imposed on the court to compile and manage a list of qualified mediators. One witness saw this entire issue as one for regulation of lenders (predominantly out of state lenders) by BISCHA. In fact there is a Senate bill that would increase the power of BISCHA to do just that. H. 590 was drafted and is being advocated by Vermont Legal Aid and the Office of the Attorney General. The House Judiciary Committee seems prepared to move the bill soon.
It was nice to take a break from judicial restructuring for a day but on Wednesday the committee returned to H. 470 as it does every Wednesday and Thursday. The day started with half of the morning session devoted to the Environmental Court. The committee was interested in why the court was not part of the restructuring proposal and why it was not going to be unified into the Superior Court (the new one). The answers were that the court is already a statewide court and is functioning well and should be left as is. Well, that prompted at least one committee member to say why are we doing something different with the probate court when the testimony was pretty similar. Judge Durkin gave the committee a history of the E court. He was followed by two witnesses from VNRC- Brian Shupe and Jon Groveman- who said that the increase in efficiency of the court is negligible and they opposed consolidation as they feared it would exacerbate existing problems. Jon Anderson called the E court a huge success and saw no benefits to be gained by consolidation. Gary Kessler, the ANR enforcement and compliance chief, agreed.
After a quick break the committee focused on court clerk and manager issues. Tari Scott, Manager of the Windsor Family-District Court spoke of her experience of cross training staff to support both dockets. This is as essential piece of unification and will need to be done statewide. She said it took about a year and a half. Diane Lavallee, Chittenden Superior Court Clerk, argued strenuously against unification, calling it a “recipe for disaster”. She reported increased levels of stress among her staff and feared for job losses among county employees. Sherry Britton, who manages all four courts in Grand Isle County, made the plea for preservation of a full service court in that county. She was supported by David Carter who lives and practices there.
After the House completed its floor activities in the afternoon, the committee got together for some discussion and reviewed the three issues they heard about in the morning: E court; Grand Isle and Essex Counties; and court consolidation. This discussion time is sort of like taking a straw poll of committee members and directing legislative counsel (in this case Erik Fitzpatrick) to attempt some drafting for committee deliberation and discussion. The committee appears heading toward looking at unifying the E court into the new superior court but, to use their words, keep it “walled off” from the other divisions (civil, criminal, family, and probate). In a sense the probate division is being treated in the same way. What I think they want is something that looks more unified and manageable but will retain its unique features. For example, judges will not rotate in and out of E court; the existing “specialist” judges will continue to preside but could be subject to temporary short term assignments in others divisions as needed. H. 470 changes the E court venue by eliminating the requirement that hearings be held in the county where the property is located. The committee seems opposed to that and dislikes the language calling for venue to be determined by rule.
On the second issue, Grand Isle and Essex Counties, the committee seems headed towards approving the minimal staff presence as long as, to quote one member, there is “a vibrant court presence” in those counties. I think the committee will adopt the VBA Board recommendation that hearings continue to be held in those courts and not force litigants to travel. Of course, there will need to be rules adopted to address venue issues, etc. none of that could possibly be in place by July 1st so this transition will be gradual and there will be some bumps in the road.
Finally, the committee talked about courthouse consolidation. I think there are only four counties with a unified courthouse right now. So that raises the issue of a single court manager in each superior court. For example, in Windsor County the two courts are about 14 miles apart, I think. No one seemed to know the answer to where the new probate divisions will actually be. For example, the Fair Haven District Probate Court is to be eliminated by act of the legislature last year. But there was discussion about retained the courtroom; at least one committee member is asking about the cost of doing that. The same question was raised about the cost of renting space for the E court. Clearly they’re looking to save some money on facilities as they add back at least one or two probate judges. As you know the VBA Board recommended no fewer than 7 probate judges and it now appears the committee will move in that direction. But that requires that they find some savings elsewhere. So the chair asked late yesterday that the Court Administrator bring a proposal to the table to save money on facilities!
In summary here’s what I know as of right now. There will be a unified superior court; it may include E court. The committee wants the probate division to maintain its current jurisdiction. They agree on the following: one manager; expanding judicial bureau jurisdiction; expanding magistrate jurisdiction; require probate judges to be lawyers; consolidate probate districts BUT the proposal for 5 districts is “off the table”. What is not yet clear is the role of side judges. There is some support for keeping them in the judicial bureau to hear traffic and some for sitting with a superior judge at the request of either the judge or the parties. The committee wants to work on the following issues: facility consolidation; rotation reduction; collecting unpaid fines; reducing benefits for part time probate judges; vacancy savings on the trial bench; reduction in force in the CAO; not having the administrative judge be a sitting trial judge.
This morning at 9 I will return to testify on some remaining issues. The committee schedule lists the Chief Justice and me on: “Jurisdictional nature of divisions in unified court system/venue rules/multi-unit districts”. Now we’re getting into the nitty gritty of the language of the bill itself as opposed the Commission report. I’ll report back later today as I’ll be here until 7 tonight to attend the public hearing on the retention of Judges Durkin, Howard and Toor. I’ll try to get a report out on today’s events before the hearing tonight. As always, thanks for reading. Get back to me with questions or comments if you have any.
It was nice to take a break from judicial restructuring for a day but on Wednesday the committee returned to H. 470 as it does every Wednesday and Thursday. The day started with half of the morning session devoted to the Environmental Court. The committee was interested in why the court was not part of the restructuring proposal and why it was not going to be unified into the Superior Court (the new one). The answers were that the court is already a statewide court and is functioning well and should be left as is. Well, that prompted at least one committee member to say why are we doing something different with the probate court when the testimony was pretty similar. Judge Durkin gave the committee a history of the E court. He was followed by two witnesses from VNRC- Brian Shupe and Jon Groveman- who said that the increase in efficiency of the court is negligible and they opposed consolidation as they feared it would exacerbate existing problems. Jon Anderson called the E court a huge success and saw no benefits to be gained by consolidation. Gary Kessler, the ANR enforcement and compliance chief, agreed.
After a quick break the committee focused on court clerk and manager issues. Tari Scott, Manager of the Windsor Family-District Court spoke of her experience of cross training staff to support both dockets. This is as essential piece of unification and will need to be done statewide. She said it took about a year and a half. Diane Lavallee, Chittenden Superior Court Clerk, argued strenuously against unification, calling it a “recipe for disaster”. She reported increased levels of stress among her staff and feared for job losses among county employees. Sherry Britton, who manages all four courts in Grand Isle County, made the plea for preservation of a full service court in that county. She was supported by David Carter who lives and practices there.
After the House completed its floor activities in the afternoon, the committee got together for some discussion and reviewed the three issues they heard about in the morning: E court; Grand Isle and Essex Counties; and court consolidation. This discussion time is sort of like taking a straw poll of committee members and directing legislative counsel (in this case Erik Fitzpatrick) to attempt some drafting for committee deliberation and discussion. The committee appears heading toward looking at unifying the E court into the new superior court but, to use their words, keep it “walled off” from the other divisions (civil, criminal, family, and probate). In a sense the probate division is being treated in the same way. What I think they want is something that looks more unified and manageable but will retain its unique features. For example, judges will not rotate in and out of E court; the existing “specialist” judges will continue to preside but could be subject to temporary short term assignments in others divisions as needed. H. 470 changes the E court venue by eliminating the requirement that hearings be held in the county where the property is located. The committee seems opposed to that and dislikes the language calling for venue to be determined by rule.
On the second issue, Grand Isle and Essex Counties, the committee seems headed towards approving the minimal staff presence as long as, to quote one member, there is “a vibrant court presence” in those counties. I think the committee will adopt the VBA Board recommendation that hearings continue to be held in those courts and not force litigants to travel. Of course, there will need to be rules adopted to address venue issues, etc. none of that could possibly be in place by July 1st so this transition will be gradual and there will be some bumps in the road.
Finally, the committee talked about courthouse consolidation. I think there are only four counties with a unified courthouse right now. So that raises the issue of a single court manager in each superior court. For example, in Windsor County the two courts are about 14 miles apart, I think. No one seemed to know the answer to where the new probate divisions will actually be. For example, the Fair Haven District Probate Court is to be eliminated by act of the legislature last year. But there was discussion about retained the courtroom; at least one committee member is asking about the cost of doing that. The same question was raised about the cost of renting space for the E court. Clearly they’re looking to save some money on facilities as they add back at least one or two probate judges. As you know the VBA Board recommended no fewer than 7 probate judges and it now appears the committee will move in that direction. But that requires that they find some savings elsewhere. So the chair asked late yesterday that the Court Administrator bring a proposal to the table to save money on facilities!
In summary here’s what I know as of right now. There will be a unified superior court; it may include E court. The committee wants the probate division to maintain its current jurisdiction. They agree on the following: one manager; expanding judicial bureau jurisdiction; expanding magistrate jurisdiction; require probate judges to be lawyers; consolidate probate districts BUT the proposal for 5 districts is “off the table”. What is not yet clear is the role of side judges. There is some support for keeping them in the judicial bureau to hear traffic and some for sitting with a superior judge at the request of either the judge or the parties. The committee wants to work on the following issues: facility consolidation; rotation reduction; collecting unpaid fines; reducing benefits for part time probate judges; vacancy savings on the trial bench; reduction in force in the CAO; not having the administrative judge be a sitting trial judge.
This morning at 9 I will return to testify on some remaining issues. The committee schedule lists the Chief Justice and me on: “Jurisdictional nature of divisions in unified court system/venue rules/multi-unit districts”. Now we’re getting into the nitty gritty of the language of the bill itself as opposed the Commission report. I’ll report back later today as I’ll be here until 7 tonight to attend the public hearing on the retention of Judges Durkin, Howard and Toor. I’ll try to get a report out on today’s events before the hearing tonight. As always, thanks for reading. Get back to me with questions or comments if you have any.
Friday, January 29, 2010
Friday January 29, 2010
I need to update you as my last report was three days ago. By the way, I will be attending the ABA Mid Year Meeting and will not be here next week. So my next report is maybe ten days away. You may have seen some news reports of the swift House passage of H. 533 the military parental rights bill. VBA Family Law Section Chair Penny Benelli and VBA Board member and past Chair of that Section Amber Barber were very involved in the drafting and testifying on the bill. Amber and Penny Benelli got some well deserved recognition yesterday from the House Judiciary Committee, from the Speaker of the House and from Gen. Michael Dubie for their work on H. 533. They were named during the press conference and during reporting of the bill on the floor. Congratulations to Amber and Penny.
A couple of other bills advanced this week and some new ones were introduced. As I mentioned earlier in the week, the felony statute of limitations bill has cleared the Senate along with the technical corrections of the Vermont Trust Code. The small estates bill passed the House. What’s new in the hopper is H. 590, the mediation in foreclosure bill; S. 279, a bill that would reduce the unanimity requirement in civil jury trials to an 80% level; H.663, a bill that proposes to require appealable arbitration for medical malpractice cases and to cap damages; and finally, of interest if you’re following judicial restructuring, is H. 641 a bill establishing a process to set county budgets.
For those of you that have testified at House Commerce or have followed uniform bills in that committee Chair Warren Kitzmiller has relinquished that post and Bill Botzow is the new chair. It was a surprise and I can’t say why that happened.
OK, so I’ve delayed writing about H.470 and judicial restructuring long enough. Again I spent Wednesday and Thursday following and participating in testimony. National Center for State Courts VP Tom Clarke was in town this week and met with both Judiciary Committees, both Appropriations Committees, and both Government Operations Committees. He explained the weighted caseload study and spoke mostly about technology. But he brought a national perspective to the discussion. This is happening everywhere. Forty eight states are having significant budget problems in their judiciaries. Re-engineering is the only way out of this current crisis. Solutions nationwide involve consolidation, altering venue, managing resources centrally, standardizing business practices and technology. He recommended that the court redesign itself in three waves. This bill reflects the first wave. The second wave (years 2-3) involves the court looking deeper into itself and its business practices. Wave three (3 to 5 years out) is technology. On technology Bob Greemore added that Vermont is beginning a high risk period by adding e-filing at the same time as a new case management system is being introduced. Even Tom agreed this could be a problem. Finally, in answer to Chairman Lippert’s question about whether there have been constitutional challenges to extreme budget cutting, Tom responded that the doctrine of inherent powers allows a court to order its funding agency (the legislature) to fund the courts! He correctly called this the nuclear option. No, I can’t imagine going there.
On Thursday, the probate judges organized some witness testimony in opposition to the probate court consolidation part of the report/bill. They all said the probate courts should remain as they are now. A trust officer from the Trust Company of Vermont Chris Chapman, attorney Dave Otterman, and attorney Mike Caccavo all opposed any consolidation- the Commission’s five districts or the VBA’s recommendation of seven. Other witnesses spoke to the ease of use and access of the probate courts and staff. The sides in this battle are by now well defined, with the VBA almost squarely in the center. There are only a few weeks left for the committee to mark up its bill and convince their colleagues to support it. But there’s so much more to do.
I was asked to comment on the issues that we heard most often during focus groups this spring and summer. I delivered a memo containing 11 topics, most of which were covered in the bill or the VBA position paper. One that was not is this:
“Some current practices could be changed. For example, rotation of judges is not efficient and terms should at least be lengthened. Law practice is becoming more specialized but in the name of cutting costs judges are being asked to become more generalist, and this is neither efficient nor conducive to good delivery of justice. More courts like the environmental court should be set up with specialized dockets. Litigants should be permitted to set the pace of cases so that fewer status conferences could be held. Judges should be able to take cases with them when they rotate, if continuity would be better for justice. Routine matters, such as continuances, could be handled by an administrative person rather than a judge.” Those were Eileen’s notes compiled from a number of focus groups. I think the judiciary committee may be looking into this. I also offered the VBA’s comments on the specifics of the H. 470. There were some changes we offered that were agreed to by Judge Davenport. We are still discussing others, some of which may be more difficult to resolve.
A couple of other bills advanced this week and some new ones were introduced. As I mentioned earlier in the week, the felony statute of limitations bill has cleared the Senate along with the technical corrections of the Vermont Trust Code. The small estates bill passed the House. What’s new in the hopper is H. 590, the mediation in foreclosure bill; S. 279, a bill that would reduce the unanimity requirement in civil jury trials to an 80% level; H.663, a bill that proposes to require appealable arbitration for medical malpractice cases and to cap damages; and finally, of interest if you’re following judicial restructuring, is H. 641 a bill establishing a process to set county budgets.
For those of you that have testified at House Commerce or have followed uniform bills in that committee Chair Warren Kitzmiller has relinquished that post and Bill Botzow is the new chair. It was a surprise and I can’t say why that happened.
OK, so I’ve delayed writing about H.470 and judicial restructuring long enough. Again I spent Wednesday and Thursday following and participating in testimony. National Center for State Courts VP Tom Clarke was in town this week and met with both Judiciary Committees, both Appropriations Committees, and both Government Operations Committees. He explained the weighted caseload study and spoke mostly about technology. But he brought a national perspective to the discussion. This is happening everywhere. Forty eight states are having significant budget problems in their judiciaries. Re-engineering is the only way out of this current crisis. Solutions nationwide involve consolidation, altering venue, managing resources centrally, standardizing business practices and technology. He recommended that the court redesign itself in three waves. This bill reflects the first wave. The second wave (years 2-3) involves the court looking deeper into itself and its business practices. Wave three (3 to 5 years out) is technology. On technology Bob Greemore added that Vermont is beginning a high risk period by adding e-filing at the same time as a new case management system is being introduced. Even Tom agreed this could be a problem. Finally, in answer to Chairman Lippert’s question about whether there have been constitutional challenges to extreme budget cutting, Tom responded that the doctrine of inherent powers allows a court to order its funding agency (the legislature) to fund the courts! He correctly called this the nuclear option. No, I can’t imagine going there.
On Thursday, the probate judges organized some witness testimony in opposition to the probate court consolidation part of the report/bill. They all said the probate courts should remain as they are now. A trust officer from the Trust Company of Vermont Chris Chapman, attorney Dave Otterman, and attorney Mike Caccavo all opposed any consolidation- the Commission’s five districts or the VBA’s recommendation of seven. Other witnesses spoke to the ease of use and access of the probate courts and staff. The sides in this battle are by now well defined, with the VBA almost squarely in the center. There are only a few weeks left for the committee to mark up its bill and convince their colleagues to support it. But there’s so much more to do.
I was asked to comment on the issues that we heard most often during focus groups this spring and summer. I delivered a memo containing 11 topics, most of which were covered in the bill or the VBA position paper. One that was not is this:
“Some current practices could be changed. For example, rotation of judges is not efficient and terms should at least be lengthened. Law practice is becoming more specialized but in the name of cutting costs judges are being asked to become more generalist, and this is neither efficient nor conducive to good delivery of justice. More courts like the environmental court should be set up with specialized dockets. Litigants should be permitted to set the pace of cases so that fewer status conferences could be held. Judges should be able to take cases with them when they rotate, if continuity would be better for justice. Routine matters, such as continuances, could be handled by an administrative person rather than a judge.” Those were Eileen’s notes compiled from a number of focus groups. I think the judiciary committee may be looking into this. I also offered the VBA’s comments on the specifics of the H. 470. There were some changes we offered that were agreed to by Judge Davenport. We are still discussing others, some of which may be more difficult to resolve.
Tuesday, January 26, 2010
January 26, 2010
The Joint Committee on Judicial Retention will be meeting tomorrow at 5 to set its schedule for this year’s round of judges that want to be retained. Here’s what to expect. The first meeting will be with the three judges- Judges Durkin, Howard, and Toor. That will happen at 5 PM on February 3rd in Room 10 of the Statehouse. The public hearing will be on Thursday, February 11th at 7 PM in Room 11. As is customary the judges are invited back to respond to anything that may have been raised during the public testimony; that will occur on Wednesday, February 17th at 5 PM, again in Room 10. The Committee will meet to deliberate and vote on Wednesday, February 24th at 5 PM in Room 10. The plan is for the joint assembly to occur on Thursday, March 18th at 10:30 AM. I’ll let you know if any of these dates change. All of these meetings are open to the public and you should feel free to testify on the 11th if you desire.
The House Judiciary Committee’s work on H. 533, the military parental rights act is finished. It was voted out unanimously and will be up for action on Thursday. I expect the bill will be on the fast track, at least through the House.
Sorry for such a short update; more tomorrow. Thanks for reading.
The House Judiciary Committee’s work on H. 533, the military parental rights act is finished. It was voted out unanimously and will be up for action on Thursday. I expect the bill will be on the fast track, at least through the House.
Sorry for such a short update; more tomorrow. Thanks for reading.
Friday, January 22, 2010
Friday, January 22, 2010
Sorry I didn’t get to report anything yesterday but it was a full day both in and out of committee. A lot of what happens in the statehouse of curse happens away from the witness chair in the committee rooms. For example, I met with Judge Davenport about H. 533, the military parental rights act. I learned that she had met with legislative council and worked on a new draft of the bill. After circulating that draft to Amber, Penny and Lt. Col. Abbott, I immediately heard their objections. So that started me on a three way negotiation process where, since I had previously offered to work with all parties, got me back in the witness chair this morning to present what I think is an agreement or at least is close to an agreement pending some drafting changes. The bill is due back next Tuesday for, I hope, final action by the House Judiciary Committee. I expect swift floor action with rules suspensions and messaging of the bill to the Senate.
The rest of yesterday was spent following the judicial reorganization testimony in House Judiciary. Morning testimony from Court Administrator Bob Greemore covered the staff impact of consolidation. Without being too specific and where cuts will be made or who will be cut, the number of court staff will shrink from 210 positions to 175. I do have a chart of a draft proposal for what it’s worth or will be worth when this bill is done. I was also quite interested in another spreadsheet he distributed which showed the savings from the consolidation of probate judges down to five full time positions. The savings is about $714,000 (down from $1.3M today). If fourteen judges were retained but were to be compensated on a percentage basis of the Chittenden Probate Judge, the savings would be about $503,000. For example, since the Addison caseload (here I’m just using the first county on the list) is 36% of the Chittenden caseload the salary of the Addison Probate Judge would be 36% of that of Judge Fowler. OK, so this does little to encourage people to run for probate judge especially in the smaller counties. But it keeps 14 judges, one in every county. Good idea; bad idea?
The VBA met with Judge Davenport to express its concerns over language in the bill itself and will be presenting a memo to both the committee and the court early next week. Bob Pratt, Chair of the Probate and Trust Section, has reworked the probate districts from 5 to 7. That will also be provided to the committee next week. one thing I found quite interesting is the Bob Greemore did tell the committee that he would not have drawn the five probate districts the way the Commission did. Although he and others have told me that privately I remain a bit surprised that he testified to it. That fed right into the hands of those committee members that are having that same issue.
Now while all of this is going on in the House, the Senate has been active doing other things. For example, the Senate Finance Committee has approved S. 173, the technical corrections bill to the Vermont Trust Code. The Senate Judiciary Committee voted out S. 165, the so called act relating to eliminating the statute of limitations for felonies. Well, it’s not exactly that. Here’s what the bill now says:
Sec. 1. 13 V.S.A. § 4503 is amended to read:
§ 4503. PROCEEDINGS BEGUN AFTER TIME LIMITATION
(a) If a prosecution for a felony or misdemeanor, other than arson and
murder, is commenced after the time limited by section 4501 or 4502 of this
title, such proceedings shall be void.
(b) If a defendant knowingly and voluntarily waives the statute of
limitations in writing and with the consent of the prosecution, the court shall
have jurisdiction over the offense and the proceedings shall be valid.
Subsection b is new language proposed to be added to the present 13 VSA 4503. That bill is on the Notice Calendar, along with S. 173, for action next week.
For those of you who may be interested in weighing in on the budget process here is notice of a public hearing to be done by interactive television:
PUBLIC HEARING
Joint Public Hearing on Fiscal Year 2011 budget
o n Vermont Interactive Television
Appropriations Committees
Monday, February 8, 2009, 4:30 - 7:00 p.m. – The House and Senate
Appropriations Committees will hold a joint public hearing on Vermont
Interactive Television (V.I.T.) to give Vermonters throughout the state an
opportunity to express their views about the state budget for fiscal year 2011.
All V.I.T. sites will be available for the hearing: Bennington, Brattleboro,
Castleton, Johnson, Lyndonville, Middlebury, Montpelier, Newport,
Randolph Center, Rutland, Springfield, St. Albans, Waterbury, White River
Junction and Williston. V.I.T.'s web site has an up-to-date location listing,
including driving directions, addresses and telephone numbers,
http://www.vitlink.org/.
For information about the format of this event, interested parties may call
the House Appropriations Committee office at 802/828-5767. Requests for
interpreters should be made to the office by 12:00 noon on Friday, January
29, 2010.
Returning to judiciary issues, the retention process is set to begin with an organizational meeting of the Joint Committee on Judicial Retention next Wednesday, January 27th at 5PM. There are three judges standing for retention this year: Judge Durkin, Judge Howard and Judge Toor. The fourth, Judge Reiss, is of course now on the federal bench. By the way, I recently heard that the governor does want to fill her seat as well as the seat of Judge Joseph who has announced his retirement effective June 30, 2010. If the judicial branch was looking for some vacancy savings there, they need to look elsewhere. Rep. Tom Koch, who replaced Peg Flory on the House Judiciary Committee, is also replacing her on the retention committee. After next week’s meeting I’ll post the schedule of interviews and public hearing dates if you want to testify.
Thanks for reading. Have a nice weekend.
The rest of yesterday was spent following the judicial reorganization testimony in House Judiciary. Morning testimony from Court Administrator Bob Greemore covered the staff impact of consolidation. Without being too specific and where cuts will be made or who will be cut, the number of court staff will shrink from 210 positions to 175. I do have a chart of a draft proposal for what it’s worth or will be worth when this bill is done. I was also quite interested in another spreadsheet he distributed which showed the savings from the consolidation of probate judges down to five full time positions. The savings is about $714,000 (down from $1.3M today). If fourteen judges were retained but were to be compensated on a percentage basis of the Chittenden Probate Judge, the savings would be about $503,000. For example, since the Addison caseload (here I’m just using the first county on the list) is 36% of the Chittenden caseload the salary of the Addison Probate Judge would be 36% of that of Judge Fowler. OK, so this does little to encourage people to run for probate judge especially in the smaller counties. But it keeps 14 judges, one in every county. Good idea; bad idea?
The VBA met with Judge Davenport to express its concerns over language in the bill itself and will be presenting a memo to both the committee and the court early next week. Bob Pratt, Chair of the Probate and Trust Section, has reworked the probate districts from 5 to 7. That will also be provided to the committee next week. one thing I found quite interesting is the Bob Greemore did tell the committee that he would not have drawn the five probate districts the way the Commission did. Although he and others have told me that privately I remain a bit surprised that he testified to it. That fed right into the hands of those committee members that are having that same issue.
Now while all of this is going on in the House, the Senate has been active doing other things. For example, the Senate Finance Committee has approved S. 173, the technical corrections bill to the Vermont Trust Code. The Senate Judiciary Committee voted out S. 165, the so called act relating to eliminating the statute of limitations for felonies. Well, it’s not exactly that. Here’s what the bill now says:
Sec. 1. 13 V.S.A. § 4503 is amended to read:
§ 4503. PROCEEDINGS BEGUN AFTER TIME LIMITATION
(a) If a prosecution for a felony or misdemeanor, other than arson and
murder, is commenced after the time limited by section 4501 or 4502 of this
title, such proceedings shall be void.
(b) If a defendant knowingly and voluntarily waives the statute of
limitations in writing and with the consent of the prosecution, the court shall
have jurisdiction over the offense and the proceedings shall be valid.
Subsection b is new language proposed to be added to the present 13 VSA 4503. That bill is on the Notice Calendar, along with S. 173, for action next week.
For those of you who may be interested in weighing in on the budget process here is notice of a public hearing to be done by interactive television:
PUBLIC HEARING
Joint Public Hearing on Fiscal Year 2011 budget
o n Vermont Interactive Television
Appropriations Committees
Monday, February 8, 2009, 4:30 - 7:00 p.m. – The House and Senate
Appropriations Committees will hold a joint public hearing on Vermont
Interactive Television (V.I.T.) to give Vermonters throughout the state an
opportunity to express their views about the state budget for fiscal year 2011.
All V.I.T. sites will be available for the hearing: Bennington, Brattleboro,
Castleton, Johnson, Lyndonville, Middlebury, Montpelier, Newport,
Randolph Center, Rutland, Springfield, St. Albans, Waterbury, White River
Junction and Williston. V.I.T.'s web site has an up-to-date location listing,
including driving directions, addresses and telephone numbers,
http://www.vitlink.org/.
For information about the format of this event, interested parties may call
the House Appropriations Committee office at 802/828-5767. Requests for
interpreters should be made to the office by 12:00 noon on Friday, January
29, 2010.
Returning to judiciary issues, the retention process is set to begin with an organizational meeting of the Joint Committee on Judicial Retention next Wednesday, January 27th at 5PM. There are three judges standing for retention this year: Judge Durkin, Judge Howard and Judge Toor. The fourth, Judge Reiss, is of course now on the federal bench. By the way, I recently heard that the governor does want to fill her seat as well as the seat of Judge Joseph who has announced his retirement effective June 30, 2010. If the judicial branch was looking for some vacancy savings there, they need to look elsewhere. Rep. Tom Koch, who replaced Peg Flory on the House Judiciary Committee, is also replacing her on the retention committee. After next week’s meeting I’ll post the schedule of interviews and public hearing dates if you want to testify.
Thanks for reading. Have a nice weekend.
Wednesday, January 20, 2010
A busy Wednesday!
What a day. It started as most do with a committee hearing on judicial restructuring. Retired District Court Judge Paul Hudson testified by telephone saying that the recommendations of the Commission on Judicial Operation (CJO) both save money and make sense. But in response to a question by Rep. Koch about the probate judge matter, he admitted to “no huge degree of certainty” but would rely on the estimates from the National Center for State Courts. Remember they originally calculated 6.3 probate judges would be needed. Judge Hudson said “there will be some disruption” and compared it to the change from municipal courts to the district court in the late 60s.
Rep. Marek called three of the five districts unworkable, i.e. the northern and the two southern districts. Judge Hudson called for reworking the northern district or, surprising everyone, appointing an attorney as an acting probate judge to share the workload! He had no real response to Rep. French’s inquiry as to whether the weighted caseload study may have bee “a little skewed”.
I spoke with Rep. Sweaney, Chair of the House Government Operations Committee about what role it was going to play. She will not “have” the bill in committee but will work on it even though it’s still in judiciary. Her concern remains the number of probate judges (districts).
After an hour long break to consider H. 533, the military parental rights bill, which I will report on below, the committee heard from Eric Avildsen, Executive Director of Vermont Legal Aid. Eric handed out a memo that closely tracks the position of the VBA Board. VLA is strongly supportive of the bill, especially the unification. He first argued for full funding, taking issue with Chairman Lippert and Speaker Shap Smith’s comments in Montreal. In short Eric is most concerned with Vermonters’ access to the courts, especially the low income population and those Vermonters with disabilities. He also raised issues with only 5 probate judges (but is still working on what that number should be) and has concerns about access in the “satellite” courts of grand Isle and Essex Counties.
I think I forgot to mention that last week Judge Davenport provided the committee with a short memo of jurisdictional changes to improve efficiency of the courts. It contained two items: first, extend magistrate jurisdiction to establishment of parentage, temporary parental rights and responsibilities, and parent child. The second concerns consolidating proceedings in the judicial bureau by adding snowmobile/boating tickets and fire prevention tickets.
The most interesting part of the day was the afternoon testimony from VLS Constitutional Law Professor Peter Teachout and Legislative Counsel Erik FitzPatrick. They both agreed and disagreed on whether the legislature’s removal of the “adjudicative function” of side judges would violate the Vermont Constitution. Teachout said it does but offered a work around if side judges sat at the request of the presiding judge or of one of the parties. If so, participation would be mandatory and it would only be for evidentiary hearings where issues of credibility etc. would come into play.
Erik’s take was a little different. After reviewing what legislative history he could find from the 1974 constitutional amendment he agreed that the legislature does not have the power to eliminate the judicial functions of side judges. But he feels that the terms “judicial function” and “adjudicative function” mean something different. And for that he relies on In re Assistant Judge William Boardman decided in May 2009. the Vermont Supreme Court wrote: “Nothing in the constitution or its implementing legislation suggests that the scope of ‘judicial functions’ or ‘judicial duties’ subject to discipline is narrowly limited to adjudicative matters.” Some committee members did not agree with their counsel’s advice!
In the meantime your Board of Managers is looking at specific language in H. 470 and is recommending changes. We’re meeting with Judge Davenport tomorrow morning to present our issues to see if there may be some common ground. Either way, I owe a memo to the judiciary committee with our language, which I will try to get to them by Friday.
So, as I mentioned the committee took a short break to return to H. 533, the military parental rights bill. I reported on yesterday’s proceedings. As I wrote yesterday I didn’t get a chance to weigh in on behalf of the VBA Board’s support of the bill. Today I followed the testimony of Judge Davenport who addressed drafting issues and spoke to the impact of the bill on the family court without taking a position on the policy of the bill. She had a few concerns that were in fact already addressed during Penny and Amber’s testimony on Tuesday. I offered to work with all parties to bring the bill together and expect a redraft tomorrow morning. The Chair of the committee Bill Lippert then surprised all of us I think when he said he wants this done and out of committee by Friday! Now that’s a tall order but that’s the process sometimes. In addition, the committee seems to moving toward the bill’s taking effect immediately. That means that family lawyers are going to have to stay tuned and pay attention to this as it moves. The VBA will of course continue to post news items about it and may have to quickly put together an educational program so that all of you are up to speed on the changes. This bill, remember, has 88 sponsors!
H. 461, an act relating to small estates is out of committee and on the House calendar for Notice tomorrow. That means it will be acted on Friday. Here’s what it looks like now:
H. 461
An act relating to small estates
Rep. Koch of Barre Town, for the Committee on Judiciary, recommends
the bill be amended by striking all after the enacting clause and inserting in
lieu thereof the following::
Sec. 1. 14 V.S.A. § 1901 is amended to read:
§ 1901. FILING INVENTORY AND BOND CONDITIONED UPON
PAYMENT OF FUNERAL EXPENSE WITH PETITION
When application is made to the judge of probate for the
appointment of an administrator or executor of an estate, there may accompany
the petition, the following:
(1) A true and complete inventory of the estate of the deceased,
appraised under oath at its true cash value;
(2) A receipt showing that the funeral expenses of the deceased have
been paid, or a personal bond in an amount determined by the judge of probate to be
reasonable, conditioned for the payment of the funeral expenses of said the
deceased, within one year from the date of death; and
(3) The will, if any.
Sec. 2. 14 V.S.A. § 1902 is amended to read:
§ 1902. LETTERS OF ADMINISTRATION AND LETTERS
TESTAMENTARY, SMALL ESTATES, NOTICE
(a) Upon receiving and filing such petition, the judge of probate may make
such investigation of the circumstances of the case and the facts set forth in the
petition, as he or she deems proper and necessary, the
(b) The court may grant administration of the estate to the
petitioner or some other suitable person forthwith without further notice, and
may issue letters of administration to the administrator or letters testamentary
to the executor without requiring further bonds, if from the petition and the
investigation it appears to the satisfaction of the court that:
(1)(A) the deceased left a surviving spouse or children of any age, or
both; or
(B) the deceased left a surviving parent or parents but no spouse or
child;
(2) the deceased died seized of no real estate; and
(3) the personal estate of the deceased, appraised at its true cash value as
of the date of death, amounts to not more than the sum of $10,000.00.
Sec. 3. 14 V.S.A. § 1903 is amended to read:
§ 1903. SAME; DISCHARGE UPON PAYMENT OF FUNERAL
EXPENSES; RESIDUE
(a) In intestate estates whenever it shall appear to the satisfaction of the
judge of probate that an administrator appointed under sections 1901 and 1902
of this title has paid or caused to be paid the funeral and burial expenses of said
deceased, and has paid over all the balance and residue of said estate in
accordance with the provisions of chapter 42 of this title,
the court may forthwith discharge the administrator without further accounting
and without notice.
Because of my schedule today I was unable to get down to a hearing in the Senate Finance Committee where Paul Hanlon, Mark Langan and Hal Miller were scheduled to address the committee on S. 173, the bill relating to technical corrections to the Vermont Trust Code. I was told by a staffer of the committee that the testimony went well; there was no opposition; and there were a few amendments that will be approved tomorrow afternoon and that bill will head to the Senate Calendar. I’ll get those specifics to you as soon as I see them.
Sorry that this post is so long but a lot happened today. Thanks for reading.
Rep. Marek called three of the five districts unworkable, i.e. the northern and the two southern districts. Judge Hudson called for reworking the northern district or, surprising everyone, appointing an attorney as an acting probate judge to share the workload! He had no real response to Rep. French’s inquiry as to whether the weighted caseload study may have bee “a little skewed”.
I spoke with Rep. Sweaney, Chair of the House Government Operations Committee about what role it was going to play. She will not “have” the bill in committee but will work on it even though it’s still in judiciary. Her concern remains the number of probate judges (districts).
After an hour long break to consider H. 533, the military parental rights bill, which I will report on below, the committee heard from Eric Avildsen, Executive Director of Vermont Legal Aid. Eric handed out a memo that closely tracks the position of the VBA Board. VLA is strongly supportive of the bill, especially the unification. He first argued for full funding, taking issue with Chairman Lippert and Speaker Shap Smith’s comments in Montreal. In short Eric is most concerned with Vermonters’ access to the courts, especially the low income population and those Vermonters with disabilities. He also raised issues with only 5 probate judges (but is still working on what that number should be) and has concerns about access in the “satellite” courts of grand Isle and Essex Counties.
I think I forgot to mention that last week Judge Davenport provided the committee with a short memo of jurisdictional changes to improve efficiency of the courts. It contained two items: first, extend magistrate jurisdiction to establishment of parentage, temporary parental rights and responsibilities, and parent child. The second concerns consolidating proceedings in the judicial bureau by adding snowmobile/boating tickets and fire prevention tickets.
The most interesting part of the day was the afternoon testimony from VLS Constitutional Law Professor Peter Teachout and Legislative Counsel Erik FitzPatrick. They both agreed and disagreed on whether the legislature’s removal of the “adjudicative function” of side judges would violate the Vermont Constitution. Teachout said it does but offered a work around if side judges sat at the request of the presiding judge or of one of the parties. If so, participation would be mandatory and it would only be for evidentiary hearings where issues of credibility etc. would come into play.
Erik’s take was a little different. After reviewing what legislative history he could find from the 1974 constitutional amendment he agreed that the legislature does not have the power to eliminate the judicial functions of side judges. But he feels that the terms “judicial function” and “adjudicative function” mean something different. And for that he relies on In re Assistant Judge William Boardman decided in May 2009. the Vermont Supreme Court wrote: “Nothing in the constitution or its implementing legislation suggests that the scope of ‘judicial functions’ or ‘judicial duties’ subject to discipline is narrowly limited to adjudicative matters.” Some committee members did not agree with their counsel’s advice!
In the meantime your Board of Managers is looking at specific language in H. 470 and is recommending changes. We’re meeting with Judge Davenport tomorrow morning to present our issues to see if there may be some common ground. Either way, I owe a memo to the judiciary committee with our language, which I will try to get to them by Friday.
So, as I mentioned the committee took a short break to return to H. 533, the military parental rights bill. I reported on yesterday’s proceedings. As I wrote yesterday I didn’t get a chance to weigh in on behalf of the VBA Board’s support of the bill. Today I followed the testimony of Judge Davenport who addressed drafting issues and spoke to the impact of the bill on the family court without taking a position on the policy of the bill. She had a few concerns that were in fact already addressed during Penny and Amber’s testimony on Tuesday. I offered to work with all parties to bring the bill together and expect a redraft tomorrow morning. The Chair of the committee Bill Lippert then surprised all of us I think when he said he wants this done and out of committee by Friday! Now that’s a tall order but that’s the process sometimes. In addition, the committee seems to moving toward the bill’s taking effect immediately. That means that family lawyers are going to have to stay tuned and pay attention to this as it moves. The VBA will of course continue to post news items about it and may have to quickly put together an educational program so that all of you are up to speed on the changes. This bill, remember, has 88 sponsors!
H. 461, an act relating to small estates is out of committee and on the House calendar for Notice tomorrow. That means it will be acted on Friday. Here’s what it looks like now:
H. 461
An act relating to small estates
Rep. Koch of Barre Town, for the Committee on Judiciary, recommends
the bill be amended by striking all after the enacting clause and inserting in
lieu thereof the following::
Sec. 1. 14 V.S.A. § 1901 is amended to read:
§ 1901. FILING INVENTORY AND BOND CONDITIONED UPON
PAYMENT OF FUNERAL EXPENSE WITH PETITION
When application is made to the judge of probate for the
appointment of an administrator or executor of an estate, there may accompany
the petition, the following:
(1) A true and complete inventory of the estate of the deceased,
appraised under oath at its true cash value;
(2) A receipt showing that the funeral expenses of the deceased have
been paid, or a personal bond in an amount determined by the judge of probate to be
reasonable, conditioned for the payment of the funeral expenses of said the
deceased, within one year from the date of death; and
(3) The will, if any.
Sec. 2. 14 V.S.A. § 1902 is amended to read:
§ 1902. LETTERS OF ADMINISTRATION AND LETTERS
TESTAMENTARY, SMALL ESTATES, NOTICE
(a) Upon receiving and filing such petition, the judge of probate may make
such investigation of the circumstances of the case and the facts set forth in the
petition, as he or she deems proper and necessary, the
(b) The court may grant administration of the estate to the
petitioner or some other suitable person forthwith without further notice, and
may issue letters of administration to the administrator or letters testamentary
to the executor without requiring further bonds, if from the petition and the
investigation it appears to the satisfaction of the court that:
(1)(A) the deceased left a surviving spouse or children of any age, or
both; or
(B) the deceased left a surviving parent or parents but no spouse or
child;
(2) the deceased died seized of no real estate; and
(3) the personal estate of the deceased, appraised at its true cash value as
of the date of death, amounts to not more than the sum of $10,000.00.
Sec. 3. 14 V.S.A. § 1903 is amended to read:
§ 1903. SAME; DISCHARGE UPON PAYMENT OF FUNERAL
EXPENSES; RESIDUE
(a) In intestate estates whenever it shall appear to the satisfaction of the
judge of probate that an administrator appointed under sections 1901 and 1902
of this title has paid or caused to be paid the funeral and burial expenses of said
deceased, and has paid over all the balance and residue of said estate in
accordance with the provisions of chapter 42 of this title,
the court may forthwith discharge the administrator without further accounting
and without notice.
Because of my schedule today I was unable to get down to a hearing in the Senate Finance Committee where Paul Hanlon, Mark Langan and Hal Miller were scheduled to address the committee on S. 173, the bill relating to technical corrections to the Vermont Trust Code. I was told by a staffer of the committee that the testimony went well; there was no opposition; and there were a few amendments that will be approved tomorrow afternoon and that bill will head to the Senate Calendar. I’ll get those specifics to you as soon as I see them.
Sorry that this post is so long but a lot happened today. Thanks for reading.
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