Thursday, May 8, 2014

Thursday, May 8, 2014


Here is a quick summary of where we are as of early Thursday. I’ve already reported that the minor guardianship bill (H.581) has passed. This week H. 88, the bill dealing with parent child contact between a child of a sexual assault and an offender has passed. The House concurred with the Senate version of the bill, thanks in large part to the testimony of Family Law Section Chair Penny Benelli and Kate Kennedy.
Although the appropriations conference committee has not yet signed off on a deal, as of right now funding for the judiciary, the defender general and Vermont Legal Aid appear to be secure. There doesn’t appear to be any disagreement between the conferees on those numbers. But, as of yesterday there was a new $2.2 million hole in the budget. But without resolution of the tax bill, it’s too early to close on the spending side. Adjournment Saturday? Maybe not.
Yesterday the House and Senate agreed on H. 497, the open meeting bill. Our Municipal Law Section had objections to language in the House passed version that infringed upon the right to confidential attorney client conversations, restricting  when the could occur in executive session. Kudos again to Chuck Storrow, Dan Richardson and Peg Flory. But I need to acknowledge the efforts many of our Municipal Law Section members made in contacting senators on the Government Operations Committee. It was interesting to hear some of them say things in committee that sounded very much like the emails you wrote to them! Even though I’ve been at this a long time, I must say that I was surprised to find the VBA arguing with the ACLU to protect the attorney client privilege! I still don’t understand why they took the position they did.
As of now, the Uniform Collateral Consequences of Conviction bill, H. 413, has passed both chambers and appears ready with one small change. The House yesterday rolled back the effective date to July 1, 2016 from the earlier Senate date of July 1, 2015. The Senate concurred in the House changes. This makes Vermont the first state to adopt this bill, drafted by a Uniform Law Commission committee headed by Rich Cassidy. Congratulations to Rich as he moves towards becoming President of the ULC!
Finally the House and Senate agreed on S. 263, the bill that would allow assistant judges to sit with magistrates in family division in all but child support contempt proceedings. What I found interesting is that it seems to have come out of the House Judiciary Committee with no testimony and was used as a vehicle for another measure to require rulemaking for ethical standards for hearing officers. The bill came out of committee, moved through the House and Senate Wednesday and was finalized today. Such is the end of the session!
Unless there is a last minute hiccup, this may be my last report of the session. Please contact me if I have not reported on something you think I should have; I’ll try to get you the most current info. But in the meantime, I’m waiting to hear that final gavel fall! Enjoy spring and thanks for reading.


Wednesday, April 30, 2014

Wednesday, April 30, 2014


For those of you in the Municipal Law Section, you’ve been reading emails about H. 497, the open meeting bill which affects executive sessions. In the House passed bill, going into executive session to receive legal advice had two preconditions. The Section disagreed and was successful in amending the bill in committee. After three hearings in the Senate Government Operations Committee, all five members finally supported the language we’ve been proposing- almost! The committee agreed last night to add the rewritten exemption (taking out rendition and using “providing”, I believe; sorry I don’t have the language in front of me). BUT, they added it as a sub F which makes it subject to the preliminary finding re: premature disclosure. An independent sub (11) was not going to win approval.
Chuck Storrow presented the new language and the compromise placement of that language. Dan Richardson answered numerous questions and persuaded the committee by using concrete examples of how this works in the real world. AND, Sen. Peg Flory, who I reached out to earlier in the day came to the hearing and helped in convincing at least two committee members.
Now, none of this would have happened without the contacts Section members made over the last week. I know of contacts between members of this Section and Senators Ayer and McAllister. They were the first two to declare support. Sen. French of Rutland County came around after digesting all the comments. Sen. Pollina of Washington County reluctantly was a yes. The last holdout was the committee chair Jeannette White of Windham County. She was a yes last night but I don’t think her heart’s really in it. So where do we go from here?
The committee has not voted the bill out yet. Along with our amendment there were others. A new clean draft will need to be done by legislative counsel; presented to the committee for a vote and then the bill heads to the floor for the full Senate to consider.
If it passes, it has to go back to the House; the House can either concur or refuse to concur and request a committee of conference. If we can convince the members of the House Government Operations Committee that this amendment is an improvement to the house passed bill, we may be able to get concurrence. If not, the 3 appointees from the house along with 3 from the Senate will write the final bill.
So, even though adjournment is scheduled for May 10th, there remains a lot to be done in that short time.
If you had a conversation and/or received a responsive email from one of the members you were in touch with, I’d suggest a follow up thanking that senator for his or her efforts. As soon as the final version is voted on and posted I’ll get it out to you; then a thank you would be in order. Again, everyone, thank you for rallying for this issue. Although it’s not 100% of what you wanted, I think you’ve improved the bill and helped protect the attorney-client privilege.

Today the Senate should be advancing H. 88, the bill concerning parent child contact when a child is conceived as a result of a sexual assault. The House passed a very broad bill that raised concerns among members of our Family Law Section. The Senate Judiciary Committee’s bill is very different. It can be read in today’s Senate calendar:

Finally, this morning the Senate Judiciary Committee voted out H. 413, the uniform collateral consequences of conviction bill. The bill was amended in two places, the most significant being the limitation to non listed crimes. Listed crimes which number I think 30 or 31 are the most heinous crimes. Adding that limitation was the only way to get the Chairman’s support. The bill may come up for full senate action as early as Friday. Although some day next week is more likely.
The minor guardianship bill, H. 581, passed the senate with amendments and is now on the House Notice Calendar for full house concurrence or to go to a committee of conference. This may happen tomorrow.

I’ll keep you posted as these matters settle. Thanks for reading. 

Wednesday, April 16, 2014

Wednesday, April 16, 2014


Yes, I know it’s been too long since I reported. But I’ve been traveling a bit on VBA and ABA business and have not been in the statehouse that much in the last two weeks. As you know, the work of the first two months of the session moved from the House to the Senate. This morning the Senate Judiciary Committee took testimony on two bills that we have been following. The first, H. 413, is the uniform collateral consequences of conviction bill. Rich Cassidy took the committee through the bill and there seemed to be support for it. Judge Davenport and John Treadwell, chief of the AG’s criminal division, supported the bill with some small changes. It appears the committee will return to this issue next week and vote it out. Then it’ll be up to the House to either concur or decline and request a committee of conference. I doubt the changes will be that dramatic that consensus cannot be reached.
Right after that the committee heard from Penny Benelli and Kate Kennedy on H. 88, the bill that would vest primary parental rights in a victim of sexual assault. They both pointed out constitutional issues as well as the lack of counsel in the hearing as designed by the House. Issues concerning the best interest of the child standard as well as the interplay between the H. 88 hearing and TPR hearings left the committee with more questions than answers. Legislative counsel was directed to work up a new draft for the committee to review next week. Clearly the committee is leaning towards protecting a victim of “stranger” sexual assault and cutting off the rights of the offender. But how this affects situations where there is or was an ongoing relationship, even a marriage, needs more thought. Whatever the Senate does will send the bill into a conference committee with the House.
Later today, Dan Richardson will address the Senate Government Operations Committee on H. 497, the open meeting law bill. There is an issue in Sec 3 of the bill which amends 1 VSA 313 (Executive Sessions) by adding a new sub 10, which in (E) seems to encroach upon the attorney client relationship.
Tomorrow the minor guardianship bill is back before Senate Judiciary to work out some remaining disagreements between probate practitioners in Franklin- Grand Isle Counties and Administrative Judge Davenport.
All of this is happening in what should be the penultimate week of senate committee meetings. They’ve been told to cease regular meetings after Friday April 25th. There’s much to be done yet and too much will get left on the table if that happens. Adjournment could come as early as Saturday 3rd although I think the following Tuesday or Wednesday is a better bet.

As always, thanks for reading. 

Tuesday, March 25, 2014

Tuesday, March 25, 2014


So, my last report was on February 28th, the day the general assembly began their one week Town Meeting break. Although I said I’d report again the week of the 18th, I did not do that. So, in  my defense it was a short week- on Thursday and Friday I was at the VBA Mid Year Meeting. Because of the size of the calendars in both chambers right after the crossover deadline most of the week was spent in floor debate in order to move bills. In fact, the House Judiciary Committee made the decision to not schedule any witnesses other than members of the legislative council. That really helped people like me who need to be elsewhere.
This week started off with news that the House Appropriations Committee has released the FY 15 budget, which, does contain $50,000 for Vermont Legal Aid to continue to offer foreclosure defense services. You may remember that funding for that work came from mortgage foreclosure settlement funds the state received. Those funds run out on June 30th. it’s only about a fifth of what is being lost but at least it’s something and, given, this year’s budget challenges I’m sure VLA is happy to get it. Now the challenge is to hold it in the Senate. The budget and the tax bills should be up for floor debate Thursday and Friday of this week. That will no doubt preempt any house committee time later this week.
As I continued to write during the first two months of the session I followed bills mainly in the House Judiciary Committee. Well, now those bills are in the Senate Judiciary Committee where I will be camped out more than anywhere else for the remainder of the session. Actually, on Thursday the committee will take its first look at the guardianship of minors bill, H. 581. There has been some input into the bill sent to the committee by the Probate Bench-Bar committee of the Franklin Grand Isle Bar Association. Judge Davenport responded to those points by letter this morning. For those of you in the Family Section and the Probate and Trust Section, Amber Barber sent it to your list serve. If anyone else who has not received it wants a copy, just email me and I’ll forward it to you. the committee has set aside all Thursday morning to work on the bill.
There are a couple of other things in the works. We have been asked to comment on  sections of the economic development bill (H 736) in House Commerce that deal with computer crimes. We’ve also asked to be heard on H. 497, a bill dealing with open meetings. That bill passed the House and is in Senate Government Operations. It has some language of interest to the members of the Municipal Law Section about legal advice to public bodies and when an executive session is permissible. We don’t have a schedule for that bill yet but we’ve asked to be on the witness list.

That pretty much brings you up to date. I’m waiting to hear more detail about how the budget writers treated the Judiciary and the Office of the Defender General. I may add to this post if I hear or will report later this week. As always, thanks for reading. 

Friday, February 28, 2014

Friday, February 28, 2014


So, we’re already at the Town Meeting break; the general assembly returns on Tuesday, March 11th. Crossover is that Friday the 14th; that means a hectic week in committees to get bills out. I will not be here that week as I’ll be attending the Bar Leadership Institute at the ABA in Chicago; I hope it warms up out there by then.
This week was pretty busy too as they move towards the break. The judicial retention process wrapped un on Wednesday evening with unanimous votes to retain all six Superior Judges. The joint assembly to vote on retention will be held in the third week of March. Again, I spent most of my time in the House Judiciary Committee as they moved towards completing work on a number of bills I have been following, have testified on, or some of you have testified on. They are H. 413, the uniform collateral consequences of conviction bill; H. 642, the bill eliminating a right jury trial for traffic appeals; H. 618, the juvenile jurisdiction bill for 16 and 17 year olds charged with crimes; and H. 866, a bill dealing with judicial nominating. This was just introduced and is now in the committee for review and possible action by March 14th. It makes some minor changes to the nominating process and a couple significant ones. First, it would raise the standard to “best “qualified in order for a candidate’s name to go to the governor. It would also add judicial bureau hearing officers to the people that must go through the judicial board nominating process.
Some of you may remember a group the VBA Board created some years ago to work on judicial qualifications. The committee recommended a “well qualified” standard and did some work on redefining the qualifications presently in the statute. Well this bill incorporates those definitions and uses “best qualified” instead of “well”. The VBA has always supported these changes. I was there for the discussion and, since I will be at the ABA when the committee plans to discuss the bill, I testified in support of that and other parts of it. The VBA Board has not taken a position on the question of whether judicial bureau hearing officers need to go through the JNB process; the committee chair thinks they should, in keeping with the spirit of a “unified judiciary”.
The Senate has passed H. 263, the bill that would authorize assistant judges to sit with magistrates in child support contempt proceedings. Also, the House passed H. 497 relating to the open meeting law. It may be interesting to look at Section 3, amending 1 VSA 313(b). It reads:
(b) A public body may not hold an executive session except to consider one or more of the following:
(10) After making a specific finding that premature general public knowledge would place the public body or a person involved at a substantial disadvantage:
(A) Contracts;
(B) Labor relations agreements with employees;
(C) Arbitration or mediation;
(D) Grievances, other than tax grievances; or
(E) Professional legal advice in connection with pending or imminent civil litigation or a prosecution, to which the public body is or may be a party.
Of course I eliminated #s 1-9 as I wanted to direct your attention to #10. Query: is there a good reason to limit legal advice to a pending or imminent action? Would the public body in any other time then be subject to discussions with counsel in an open meeting? We’ll see where this goes when the Senate takes it up after crossover.
Other than working with Eric Avildsen of Vermont Legal Aid on his budget issues and helping out the federal judicial nominating  commission, that’s pretty much been my week. Thanks for reading. I’ll be reporting again the week of March 18.


Thursday, February 20, 2014

Thursday, February 20, 2014


The House Judiciary Committee is continuing its work on the collateral consequences bill (H 413) as well as the juvenile jurisdiction bill (H 618). Both are back on the table for discussion on Friday. I’ve been asked to tell the committee that the VBA Board of Managers had already endorsed the collateral consequences language back in 2010. As far as the juvenile jurisdiction bill goes, I’m not certain it has the support to emerge from the committee even with the amendments. Obviously the states attorneys don’t like and four have developed their own protocols to achieve much of the same results as the bill would achieve if enacted, at least according to them. One committee member pointed out that this is an election year and one or more states attorneys may not be in office next year and their protocols may leave with them.
Tomorrow the Senate Judiciary Committee has scheduled time to mark up and vote on S. 263, the bill I discussed yesterday concerning extending authority to assistant judges to sit with magistrates on child support contempt cases. it will probably have enough support to come out to the floor.
Last night was the public hearing on the retention of the six judges whose terms expire on March 31st. only Jackie Fletcher, Court Manager for the Environmental Division testified in support of Judge Walsh. No other witnesses appeared. However, a couple of letters and emails were received by the committee. Tow of them concerned Judge Maley; both related to the wind case on Lowell Mountain. Parties to the civil case complained about his handling of the matter. But with the case still pending (almost two and half years after he made his rulings) he was hesitant to go into too much detail about the case. The second email concerned the criminal case that resulted in the conviction of some trespassers in the area where Green Mountain Power was attempting to erect towers. He defended his rulings in that jury trial and told the committee he (and the judge that handled pre trial matters) had been upheld by the Supreme Court.
The final communication was about a serious and difficult homicide trial which prompted the relative of the victim (at least I believe it was from a relative) to write that, during the trial, at various bench conferences the attorneys and the judge could be seen and heard to be laughing. Judge Davenport. Who was in attendance, explained that sometimes “lowering the temperature” helped relieve everyone’s stress. The committee “got it”, especially when she analogized it to conference committee tensions in the waning days of a session. But it got me to think that maybe we aren’t sensitive to what others, not familiar with courts, must think when they see attorneys advocate and argue and then seem to be “enjoying” themselves along with a judge. It’s just something to think about I guess.

Anyway, as always, thanks for reading. 

Wednesday, February 19, 2014

Wednesday, February 19, 2014


Things got off to a bit of a slow start this week with H. 413, collateral consequences our only bill up yesterday. The House Judiciary Committee has done a good job of hearing from all parties with an interest in the bill. There is anew draft version which the committee should soon be reviewing. The only remaining issue I see if where the database or collection of collateral consequences will be housed and who will be responsible for updating it. I think when those issues are resolved the bill could be on its way to the house floor for a vote. The VBA Board of Managers, by the way, supported this bill before the ABA House of Delegates back in January 2010.
So far today I’ve had the opportunity to visit the Senate Judiciary Committee for the first time this session. Since they have mainly work on criminal law related issues, and since those issues are well covered by the AGs, the States Attorneys and the Office of the Defender General, I usually don’t follow those bills. But today the committee began work on S. 263, the bill that would allow assistant judges to sit with magistrates in child support contempt proceedings. Bennington AJ Jim Colvin testified by phone in favor of the bill. Pat Gabel, Court Administrator, spoke to the committee about the availability of assistant judges, who are able to decide when and in which cases or courts they choose to sit. I was asked to testify even though I was not on the witness list and did my best to summarize the 20 comments I received from members of our Family Law Section back in December. I submitted those comments from which I redacted the names of the writers. I think the committee plans to return to this bill on Friday.
This afternoon, House Judiciary will return to H. 618, the bill relating to exclusive jurisdiction over delinquency proceedings by the Family Division of the Superior Court. I’m still not sure where this one will go if it moves at all. Tonight, of course, is the public hearing on the retention of six superior court judges. There has been a lot of press inviting members of the public to testify; let’s see who shows up. More tomorrow on the outcome of tonight.
Thanks for reading.