Monday, April 6, 2015

April 6, 2015


I apologize for having been silent on events in the legislature for the month of March. Due to a death in the family I spent the month in New York. VBA President Dan Richardson covered for me and devoted more time to our presence in the statehouse that he expected when he became President. The following summary on the judiciary funding issue is his.

As you all may already know, the House Appropriations Committee passed H. 490 two weeks ago that did three things affecting our conversation: 1) it created a study group that will work this summer to look to see how systematic changes can create the savings sought by the legislature and the administration; 2) It cut $500,000 from the judiciary’s budget but restored it for FY 16 with one-time money equal to $500,000; and 3) it implemented the proposed $600,000 pay act cut and the $900,000 in underfunding of existing judiciary obligations.  Notwithstanding these cuts, the partial restoration of funds and the study group felt like a big lift from the house that was, as I explained at the last meeting, just ready to slash the budget and let the judiciary deal with it.  These changes reflect a lot of efforts on the VBA’s part and on members’ part to persuade legislators of the problems. 

Whether these cuts will stay in the Senate’s version is less clear.  Last week, I testified in Senate Judiciary, and the Committee seemed supportive of walking back these cuts.  Senator Tim Ashe, in particular, was upset with the idea that the $500,000 being called “bridge funding.”  As he put it, a bridge is supposed to take you across that chasm and not drop you in the middle. 

The Judiciary is not happy with the budget because of the $500,000 cut to their base budget, which without this year’s one-time funding will become a hole for them next year and every year thereafter to fill or cut.  In other words, the Judiciary understands that the one-time funding allows them to dodge a bullet this year, but it comes with a price tag that any budget discussion next starts with a base budget at this lower amount.  That means, the Judiciary, under the House bill, has less than one-year to come up with a permanent $500,000 cut to its budget for next year’s budget process.   

More importantly, the $1.5 Million in cuts to the pay act and from the underfunding remain, which pose a serious problem for the Court beginning July 1st.  The Judiciary’s remaining focus for the year is to undo the $500,000 cut (more semantics than actual money swapping since the money is already there for FY16) and to fight to restore the $600,000 through a mixture of fee increases and restoration of some pay act funds.  If successful, that would keep the Judiciary where they are now, underfunded and relying on vacancy savings but able to fund its current operations.  As I pointed out to Pat Gabel, the Chief, and Judge Grearson the problem is that now the Administration and the House are lined up behind this budget and the Judiciary will not only have to persuade the Senate to disagree these cuts but take the fight to the house and the Administration.  It is a tall order.

The judiciary is supportive of the summer study/working group.

Despite opposition, the videoconferencing arraignment pilot project looks like it will be going forward.  The House bill provides funding for a pilot project, and the Judiciary has begun to move forward.  They have also heard the message from several corners, including the VBA, that they need to work with the various partners on this project. 

The big news according to Pat is that the Administration has made it very clear that they want the long-term cuts to come from courthouse closures.  Pat has stated in no uncertain terms that the Court does not support closing courthouses and will fight to keep them open, but that the Administration sees closing some courthouses as a necessary budget cut.  Pat reported to me that the Administration made no bones about it, and that they would keep the budget pressure on the Judiciary until it closes courthouses.  The important thing to keep in mind is that when we are talking about closing courthouses, we are also talking about laying off the court staff.


Judge Grearson is making out next year’s trial court rotation schedule, and he reported that with the four current vacancies unlikely to be completely filed by September 1st, the rotation schedule is going to have a lot of holes in it.  These gaps will largely fall to the civil docket as resources will have to go to family and criminal.  Even if the Governor makes new appointments, the new judges will take time to close their practices and receive training.  Grearson estimates a 4 to 6 month process to put the new judges on the bench, hearing cases, after the appointments are made. On top of this, Judge Grearson indicated that there might be more vacancies coming in the late summer/early fall.  So this is a problem that may get worse before it gets better.

Friday, February 27, 2015

27 February 2015



So it’s now one week since I met with the Speaker of the House about the court’s budget and I’ve heard nothing from the supreme court about the suggestion of fees to reduce the cutback. I gather from the testimony of the court administrator (CA) yesterday at the house judiciary committee that the court is ignoring that idea.

She proposed other money saving ideas to the committee; well, sort of. The first is a proposal to add videoconferencing equipment to 7 correctional facilities to allow remote court hearings. The judiciary would have to purchase not only those 7 but 14 for the 14 courthouses. The cost would be $306,000. They are proposing a July pilot project in Chittenden County followed by expansion in January. This should help reduce the sheriffs’ transportation costs of $2.2 million by about 25-30%. But, there will be no savings in FY 16; there will be a net cost with savings to be seen in FY 17.
The court hopes to follow the lead of New Hampshire, Massachusetts, Connecticut, and Virginia. 

This, as some of you may remember, has been tried before but didn’t succeed. The CA attributed that to lack of discipline in project management and the technology at the time, although New Hampshire has apparently been doing it for 18 years.

The court does desperately need to cut back on transport fees as over two million dollars a year is really not at all sustainable. But this proposal does nothing to help the cut of $500 K that’s about to hit the judiciary hard. I’ve spoken to some members of the committee who remain confused as to what the court intends to do for the fiscal year beginning in 4 months. You can read about the video proposal here:

The question was asked about attorneys meeting their clients. The CA responded that defense counsel could meet their clients before a hearing or could travel to the correctional facility and meet with and appear with their client from there. I wonder how that will work with some public defenders who may have clients out on bail and in the correctional centers; how do you appear for both say, for status conferences?

The court is having a bill drafted that will cover some other issues. I was not given a copy of it. I expect that it will bypass some appeals to the superior court and redirect them to the supreme court. I expect it to say that appeals from magistrate decisions will go “on the record” to the supreme court, bypassing the family court judge.

The proposal will also include probate hearings on the record and appeals to the supreme court on that record. You readers will have to tell me whether all probate courts are outfitted with the equipment needed to make that record.

In divorce cases with substantial assets at stake or complex business valuation issues, the court wants the authority to appoint a special master to aid movement of the case through the family court.
Finally, and I’m not sure just what this could entail, the CA spoke about the court seeking authority to change venue by rule. I believe she said “up to four counties”. This is part of the court’s repetition of “right sizing” the courts. Although the supreme court does not support closing courthouses. This proposal will require some study and comment when it’s on paper.

I expect the House Judiciary Committee will return to these proposals on Tuesday March 10 and Thursday March 12. Stay tuned.
This should shed more light on how bad things are:

Finally, the governor has made his appointments to the Judicial Nominating Board; now we’re only awaiting the senate’s three names. I expect legislative counsel will convene the Board after the senate appoints its three members on Tuesday, March 10th. At the first organizational meeting the Board will adopt rules and elect a chair. Then the governor is expected to ask them to fill one judicial vacancy.


So, this is my last report until after the Town Meeting break. Thanks as always for reading and don’t forget to buttonhole your reps and senators next week and ask that the court be fully funded. 

Wednesday, February 25, 2015

Wednesday, February 25, 2015



It’s time I updated what’s been happening in Montpelier. First of all, the House chose its members of the Judicial Nominating Board. They are Bill Lippert, Maxine Grad, and Patti Komline. I spoke with Sen. Mazza yesterday about the Senate’s appointments. He is part of the three member Committee on Committees and said he’d urge Pro Tem John Campbell and Lt. Gov Phil Scott to make their appointments soon. And, we are still awaiting the governor’s two appointments. It’s hoped that then the new JNB is complete, at least one judgeship may be filled. If that means that the JNB will have to meet during the session, then that’s what will happen. By the time the notice of application goes out, followed by the interview period etc, it’ll be summer before names go to the governor. According to Chief Superior Judge Grearson, he’d like a new judge or judges to be ready to be on the rotation schedule by September.

So, where are we on judicial funding issues? After hearing many of you, some probate judges, trial court clerks, VBA Board members talk about increasing fees I took that message to members of the house appropriations committee. Some members seem interested in that conversation. Remember though that the fees (and fines) generated go to the general fund and not to the court’s budget. My approach was to ask that, in exchange for increased dollars to the general fund, that the court would be given a pass on the proposed $500K cut this year. In exchange the court could continue its meetings with its “justice partners” through the rest of this year and report to the legislature in January where to find efficiencies and potential savings.

Last Friday I made that pitch to the speaker in a one on one meeting. His response was that he’d be willing to see a “dollar for dollar” swap- any increase in fees would reduce the court’s cut. He wasn’t able to go further. I communicated that message to the chief justice an court administrator within minutes of leaving that meeting. To date, I haven’t heard from the court as to whether this is a direction they want to pursue. I know that the speaker talked about that idea to the chair of the senate appropriations committee Jane Kitchel; she is also interested.

Yesterday afternoon the chair of the Senate institutions Committee, Peg Flory,  asked me to sit in on a 3:15 hearing on the “judiciary protocol for prioritizing of capital projects”. The question was whether to go forward with the $5.2 million capital project at the Lamoille courthouse or redirect that money to a case management system. The court administrator (CA) told the committee that the “priorities of the court are changing given the current cuts”. The commissioner of building and general services objected saying that substantial money had already been spent on engineering etc. Also, he said they have already rented space for court staff who will be relocating in April in preparation for the construction. She also said that redirecting that money will not result in any savings in FY 16. Sen. Mazza asked what the return on that investment would be; Sen. Rogers said that the cost of running IT systems is always higher than planned. Again the CA responded that some states claim a 20% savings. She doesn’t expect VT will see any savings because “we’re underfunded already”.

Senators Mazza and McAllister asked about increasing fees and again the CA didn’t really respond. All she said was that last year was the court’s three year cycle to have fees reviewed and, with the exception of removing the surcharge and rounding up the filing fees, the fees were not increased. So it seems as though the door may be open to moving forward on this.

Everywhere in the statehouse people interested in the judiciary are talking about the funding crisis hitting the courts. I’ve asked all of you at least twice now to talk with your representatives and senators about fully funding the judiciary. You should see many of them next week at your town meetings. Make sure they understand what this means for access to justice and preservation of the rule of law.

OK, back to senate institutions. The CA spoke to moving to increase use of videoconferencing, which of course would require an investment upfront. There were no details as to cost or timing. She also spoke to regionalization of termination of parental rights cases (TPRs). Sen. Flory asked about the experience with the use of video for criminal cases in the past. The CA responded that the technology is better today and these systems are in use in other states. She thinks a 25-30% savings in the cost of transport and travel if the money is invested in video technology.

The hearing ended with the CA repeating the well-known limitations in the paper filing system, data entry 30 year old system that our courts use. She also raised the issue of whether every county should have a “full capacity court”. Should some courthouses be outfitted with the newest technology and trials held there, even if it means taking a case to another county? I’ve run that idea by some trial lawyers and they seemed interested; this is especially true among those who practice in the federal district court. She repeated that the supreme court does not support closing courts.

Two final issues were raised: at what level are courthouses maintained? Should some of that cost be shared by the county? Finally security costs came up again. This time it was raised by Sen. Mazza. Earlier in the day in my conversation with Sen. Kitchel, she raised the same question.


So that’s where we are at the moment. I’ll continue to report any news. Thanks for staying informed and for reading these posts. 

Thursday, February 19, 2015

Thursday, February 19, 2015



Last night’s public hearing on judicial retention was uneventful. There were only three witnesses, all of whom testified in support of Judge Teachout. No other witnesses appeared to speak for or against the other judges or magistrates.
Before the public hearing began, the committee interviewed our newest judge, Judge Waples. She will be interviewed by the senate judiciary committee on Friday morning and hopefully confirmed soon thereafter. As she is filling the superior court seat once held by Judge Crawford, which term expires 31 March 2015, she needs to go through the retention process. Obviously, she hasn’t even sat as a judge yet so there is not record on which to base a retention vote. It’s just one of those quirks of our system.

Also, tomorrow the senate judiciary committee will interview Justice Eaton for confirmation. Neither should present any problems.

There are a couple of things of note for all of you to take a quick look at. The house government operations committee is working on a bill presented by the secretary of state; H. 206 would change the way notaries are commissioned; set qualifications, including continuing education; set out what may be accepted for identification, among other things. The bill can be read here: http://legislature.vermont.gov/assets/Documents/2016/Docs/BILLS/H-0206/H-0206%20As%20Introduced.pdf
This bill will affect each of you and the notaries in your office. You should read it and send me your reaction. I testified yesterday preliminarily and addressed the cost issue, the examination for first time notaries (yes really!), the continuing education, etc. I think we can support the online registration, the qualifications and standards set out in 206 but there is some dispute as to the remainder of the bill. Please let me know your thoughts.

Our Family, Juvenile, and Criminal Law Sections have been following S. 9 since the first week of the session. The senate judiciary committee voted the bill out yesterday unanimously and sent it to the appropriations committee. It’s there because of funding included in the bill for a legislative oversight committee. Here’s a link to the amended version of S. 9:


I’ll keep you posted as we move into the last week before the Town Meeting break. Thanks for reading. 

Monday, February 16, 2015

16 February 2015



Public Hearing on Judicial Retention of the following Superior 
Court Judges and Magistrates: 

Honorable Brian J. Grearson, Superior Judge 
Honorable Mary Gleason Harlow, Magistrate 
Honorable Christin A. Hoyt, Magistrate 
Honorable Mary Miles Teachout, Superior Judge 
Honorable Howard E. VanBenthuysen, Superior Judge 

The Joint Committee on Judicial Retention will hold a public hearing on 
Wednesday, February 18, 2015, starting at 7:00 pm

The hearing will be held in Room 11 at the State House. Members of the public interested in testifying regarding the above Judges may sign up 30 minutes prior to the hearing. 
Each person will have 5 minutes to testify and the hearing will adjourn at 8:00 pm. 

Thursday, February 12, 2015

12 February 2015



Yesterday was a busy day for the VBA. It began in the House Government Operations Committee where Deputy Secretary of State Chris Winters presented a bill that would regulate notaries public. The bill, H. 206 can be read here:

It is needed, he said, to provide standards for notarial acts, create a stable system of regulation and insure Vermont’s standards are compatible with those of other states. Applications and renewals would be online an run by the secretary of state’s office of professional regulation. The cost would double ($30 every two years instead of every four) with the money going to the state (I believe) instead of the counties. You should all review the bill as it will affect you and members of your office staff. Please get your comments, if any to me as the VBA will be asked to weigh in.

I met with the Executive Director of Vermont Legal Aid, Eric Avildsen, in the morning shortly after he spoke with the appropriations committee member responsible for his (AHS) budget. The governor has recommended a reduction in the VLA grant of $47,000. While that amount may seem small, those dollars bring in a dollar for dollar federal match, making that 47K cut almost a $100,000 loss. If that happens, VLA will be funded at about the 2008 level. In actuality it needs a $75,000 increase just to keep up with inflation.

I spent the afternoon with the judiciary in the house appropriations committee as they made their budget presentation. The chief justice led off with an overview of the underfunding crisis and his use of vacancy savings to stay within budget. But he called vacancy savings a “cancer on the branch; continued erosion of support for the courts is leading to distrust and disrespect of the courts”.

He was followed by court administrator Pat Gabel and Chief Superior Judge Brian Grearson along with CFO Matt Riven. They all testified firmly and effectively in opposition to the governor’s recommended cut of $500,000 in FY16. This 9 page document is worth a read, especially pages 4 to 6:

The budget bill will not be voted out of the House until after the Town Meeting recess. I urge all of you to contact your representatives now to ask that they NOT support the reduction in judicial funding. Don’t just call, email or leave a message; try to start a conversation and try to get a commitment that they will stand with the court on its budget request. Follow up with your legislator at Town Meeting and let me know where he or she stands. This has to be a grass roots effort and, as officers of the court, we have a responsibility to preserve our system of justice. We need your help; it’s time to act.

Finally, I ended my day at the evening meeting of the judicial retention committee where three judges and two magistrates were interviewed. These meetings are generally cordial with the candidate for retention making an opening statement as to why he or she wants to continue to serve. The committee then questions each one usually basing questions on the results of the surveys.
 Judge Grearson was up first and his conversation focused on three of his roles: until recently as a full time trial judge; his role in treatment court; and now as chief superior judge. What impressed me the most of his comments was something he alluded to in appropriations earlier in the day. He said vacancy savings in not a savings. “you’re not saving, you’re compromising”. There’s more to managing a court system that trying to save money by not filling positions. You can only do so much when morale is as low as it is right now.

If I recall correctly Matt Riven said there are 22 unfilled positions in the judiciary. We know that there are 3 open superior judge positions, with another coming on February 28, when Judge Suntag retires. The fifth will follow with the retirement of Judge Wesley this summer (I believe). And there is talk of a sixth before September. Also, Magistrate Shelly Gartner is retiring at the end of March. Judge Grearson can only move bodies around so much to try to keep all dockets covered. We’ve heard from many of you about delays already; without restoration of the funding needed, it’s going to get worse.

Judge Teachout followed and was immediately hit with a comment form the committee that they were disturbed at the high number of negatives in the survey responses. Comments such as “arrogant, disrespectful, hostile and demeaning” were heard. The judge was taken aback by those and, although she admits to be formal in court and to insisting on following the rules, she did not see herself in that way. But, as all retentions do, this makes for a time of self-reflection and improvement.

I have to relate something she said though because it seemed so odd to me. While some respondents complained about formality, Judge Teachout spoke about having to remind counsel in court to rise when addressing the court! Maybe I’ve been out of practice too long but I never heard anything of the sort. Have we really gotten that lax? Are we no longer mentoring new lawyers? Should the VBA be training new lawyers about protocol? Aren’t law schools doing that? It surprised me and I know it surprised the other judges in the room.

Judge Van Benthuysen addressed two issues in his comments: first, he said that one year rotations are too short, especially for judges that cover treatment courts. Secondly, he questioned our practice of generalist judges saying “we’re not all equally good in all dockets”.

The two magistrates Mary Harlow and Christine Hoyt, facing retention for the first time, were well received. Each spoke to being nervous with eh new process and each felt humbled by reading comments about their performance. They did well overall. Each was asked about how they handle a case when only one side is represented. They spoke to their duty to help develop the evidence and the ways they may use to do that.

Sorry for the length of today’s post but, as I said at the beginning, it was a busy day. As always, thanks for reading. But now we need you to act. Call your legislators; meet them at town Meeting; let them know of the crisis the court is facing. Thanks.

Stay warm.

Tuesday, February 10, 2015

10 February 2015



Sorry I haven’t reported for a few days but I traveled out of state for the ABA Mid Year Meeting; yes, it was in a warmer and sunny place- Houston, TX. Since I last posted the House passed the Uniform Transfer to Minors Act and sent it to the Senate. Now, the Senate will hold it until after crossover- the day when bills (except money bills) must be passed by one chamber in order to receive consideration in the other. That date, this year, is March 13th, although there is some flexibility in the first year of a biennium.

Tomorrow the House should act on the Uniform Interstate Family Support Act (H. 86). VBA Family Law Section Chair Penny Benelli testified in support of the bill which needs to be passed in order as a condition of continued receipt of federal funds supporting child support programs.

Also tomorrow the Joint Committee on Judicial Retention will interview the three judges and two magistrates up for retention this year. Here is the committee schedule should you be interested in providing input to the committee or to testify at the public hearing.

JUDICIAL RETENTION SCHEDULE 2015
Wed. 2/11    First Comm. meeting with Superior Judges, Magistrates
5:00 p.m., Room 10
          Hon. Brian Grearson
          Hon. Mary Miles Teachout, Superior Judge                          
          Hon. Howard VanBenthuysen, Superior Judge
          Hon. Mary Gleason Harlow, Magistrate
          Hon. Christine Hoyt, Magistrate
                   
Wed. 2/18    Public hearing
7:00 p.m., Room 11

Thurs. 2/26   Follow up Comm. Meetings with Superior Judges, Magistrates
5:00 p.m., Room 10

March 2-March 6     Town Meeting Week Recess

Wed. 3/11    Comm. Meeting to deliberate, vote and make reporting
5:00 p.m., Room 10          assignments

Tues. 3/17    Have summaries of reports available for caucuses

Thurs. 3/19   Joint Assembly (if Comm. is not ready, postpone by Joint
10:30 a.m.    Resolution until 3/26)

A lot has been happening, although mostly in the background, on the judicial budget issue. There’s not much to report here except to say that the Senate agrees with the House on the budget adjustment to the judiciary budget. The $500,000 cut proposed by the governor for FY 16 is still in play. The Supreme Court convened a meeting yesterday of about 20 stakeholders to discuss options to save some money. Those options include “right-sizing” use of courtrooms; increased use of video conferencing; reduced prisoner transport; specialty court dockets, etc. Of course, closing courthouses (Grand Isle and Essex) came up as did reducing the number of probate courts. But nothing conclusive came out of that meeting; there was no consensus on a plan. Tomorrow afternoon, the CJ is presenting the court’s budget to the House Appropriations Committee. It’ll be interesting to hear his summary of yesterday.


I’ll update this as soon as I can after tomorrow’s hearing. Thanks for reading.