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
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
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:
(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
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
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.
Thursday, February 13, 2014
So it’s been over a week since my last post and, yes, I have heard from a few of you about whether I was AWOL. I can assure you I have been here and covering committees of interest. Here a summary of the last week’s activities. Last Thursday I attended a House Judiciary Committee hearing on H. 618, the bill that would require all criminal charges against kids under 18 be brought in Family Division. As introduced the bill does not allow transfer of those cases to the Criminal Division. Immediately the committee talked about putting those transfer provisions back in the bill. This bill would really undo the work of a special session of the general assembly after the Essex killing involving defendants Hamlin and Savage. Probably some of you remember that.
I also got involved in H. 795, a bill to change some of the procedures to collect restitution from criminal defendants. This is not so much a VBA concern bu,t as Chair of the state’s Victims Compensation Board, it is an issue I work on. Actually, this morning we made our presentation to the House Appropriations Committee.
Last Friday I was out of the building at VLS participating in more interviews for our next Poverty Law Fellow. We’re down to a small group of incredibly talented young lawyers, any one of whom would serve our veteran population very well. making a final decision between these candidates will not be easy.
Tuesday morning started again in House Judiciary, again on the restitution bill; the afternoon was devoted to H. 413, the collateral consequences of conviction bill. This time Chittenden States Attorney TJ Donovan weighed in supporting it. Other witnesses agreed. The bill seems to be moving toward completion and floor action soon. yesterday House Judiciary worked towards completion also on S. 119, the amending perpetual conservation easements bill as well as the juvenile jurisdiction bill, H. 618. So, for the most part I have been following the work of House Judiciary almost exclusively. So, after crossover ( Friday, March 14th) my attention will turn to the Senate Judiciary Committee which will begin work on the bills the House has sent over.
There were two events of interest yesterday. First, the Chief Justice, Justice Dooley, Court Administrator Patricia Gabel, and the judiciary’s new financial person, Matt Rivin, made their presentation to the House Appropriations Committee. The testimony came minutes after the House adopted the Senate’s changes to the budget adjustment bill. That bill, as it came back from the Senate, contained a supplemental appropriation of about $650,000 for the judicial branch. The Chief spoke at length about the judicial advisory council that the court convened to address governance issues within the branch. The governor's recommended budget contains a 3.1% or $1.267 million increase in the base.
I was surprised when one committee member said he felt like “we’re throwing money down the drain”. He felt as though “trust was broken” and he wants to see what the court has identified ans the problem and how it will fix it. Thinking that that was the feeling of a single member of the committee I mentioned to another member this morning that I was shocked by that and was told “the whole committee feels that way”. OUCH! Clearly a lot needs to be done by the judicial branch. I don’t envy the work of the appropriations committees this year.
Last evening the three remaining judges up for retention appeared before the retention committee. Judge Nancy Corsones was the first to be interviewed. Her surveys six years ago spoke to her need to “slow down” and she took that advice. This year’s surveys contained a few negative comments (as almost every judge has seen); she responded to those. Her love of her job was evident and the was expertise she has developed in family court. She spoke to the drug problem, to the decline in decorum among the public in the courtroom and addressed issue of the mental health docket after Tropical Storm Irene.
Judge Hayes was next and said that this process of retention is “painful but valuable”. In that, she agreed with Judge Corsones. This year her surveys were quite positive and it appears that the issues she faced six years ago have been corrected. Since 2008, she has worked on lessening the use of humor in the courtroom, lest it be misunderstood; she has worked on being more respectful of lawyers and not interrupting them. In response to a comment that she didn’t appear to know the law, she offered that may have been during a tenure in the Civil Division, where she had not sat for some time. For her 11 years on the bench she has spent 7 in Family Division.
Judge Suntag was up last and spoke to the changes in his survey results from 12 years earlier. He discussed his teaching around the country and responded to committee questions about his local rule about plea agreements in the criminal docket. He also spoke to the Integrated Domestic Violence Docket he has instituted in Windham County. This grant supported effort should reduce recidivism, as results from other parts of the country have shown. Given the focus of this session on opiate and prescription drug abuse, the committee was very interested in his approach and in Judge Corsones’ comments about the effects of drugs in juvenile, family and criminal cases.
Well, I think I’m caught up. Sorry for the delay in keeping you informed. As always, let me know what you think about any of these issues and/or anything I may have missed which you want to hear about. Until my next post, thanks for reading.
Wednesday, February 5, 2014
This was quite an interesting morning in the House Judiciary Committee as they took their first look at three new bills: H. 731, H. 545, and H. 413. I introduced all three in yesterday’s post. Rep. Kristina Michelson spoke to the bills he introduced, H. 731, and why it would preserve judicial resources. Her stated goal is to give a small claims defendant the right to ask for appointment of a specially assigned judicial officer (judge or attorney) and apply the Rules of Evidence to the hearing. The only way the Rules would apply under current law is to request a jury trial. Justice Crawford was there and commented, from his experience as a trial judge, that a relaxed hearsay rule is really what allows the small claims court to function. Although, per Justice Crawford, there may be times when the Rules should apply, the court operates on evidence people would use in conducting the affairs of daily life.
This bill was followed by H. 545, which would raise the jurisdictional limit of small claims actions to $10,000. The sponsor of the bill offered that jurisdictional limits around the country range from $2500 to $15000, with 9 states having a $10000 limit. Vermont went from $3500 to the present $5000 limit in 2007. She argued that increasing the limit would create more access for plaintiffs. Jean Murray of Vermont Legal Aid spoke to the credit card companies’ use of small claims against mostly unrepresented defendants. Justice Crawford raised the issue of loss of revenue in filing fees. He also spoke to quicker judgments for “debt buyers” or consolidators. He felt the usual “mom and pop” type small claims are mostly under $5000 but would need to do some research to be certain. Administrative Judge Davenport spoke to the increased work load on court staff, given that the courts handle service on defendants. This could result in increasing staff, an appropriation on the bill, etc. The bill doesn’t seem to have legs after this morning.
Finally the Committee began work on H. 413, the collateral consequences of conviction bill. Rich Cassidy testified by phone as to the background of the bill; he was followed by Assistant AG John Treadwell. The AG’s Office is supportive of the bill with some amendments and with the clarification of who will bear the responsibility to maintain a list of all collateral consequences. The bill is sponsored by three members of the House Judiciary Committee and I think it will be advancing after some further testimony. Rich told the committee that the bill has been adopted in large part in North Carolina prompting the Committee Chair, Bill Lippert, to say that he wanted the committee to hear from someone from North Carolina as to how the bill is affecting criminal proceedings there, if at all.
Thanks for reading.
Thanks for reading.