Wednesday, January 28, 2015

28 January 2015

Here’s a short update and what’s happening both on a substantive issue and on the funding crisis in the judicial branch. The House Judiciary Committee is nearing completion of its review of the Uniform Transfer to Minors Act. Yesterday, legislative counsel Erik FitzPatrick presented some amendments to the committee that were requested last week. After discussion and a few more changes, he emailed them to Stephanie Willbanks, Joe Cook, Mark Langan, and me. Stephanie weighed in with one comment as did I; pending any issues that may be raised by Joe or Mark, the Committee may vote the bill out as early as 1:30 today.

Tomorrow the Committee will focus on the H.86 - An act relating to the Uniform Interstate Family Support Act. Uniform Law Commissioner Richard Cassidy will testify and VBA Family Law Section Chair Penny Benelli will also. I’ll post an update when there’s more to report on that.

On the judiciary budget front, you now know that H. 82, the budget adjustment act is out of committee, on today’s Notice Calendar and up for action Thursday and Friday on the House floor. Yesterday the Senate Appropriations Committee heard from the court administrator on the $224,138 cut in this year’s budget. Although I continue to deliver the message I’ve heard from many of you that these cuts are damaging access to justice, the judiciary seems willing to manage to that level of reduced funding. Every state agency (yes, I know we’re talking about a branch and not an agency or department) is expected to keep about a 3% vacancy savings. The judiciary now carries a 3.5% vacancy. The cuts in the budget adjustment bill would force them to raise that to 7-8%; too much to ask, I’d say. The question for you the reader is whether a branch of government should be forced to operate at that reduced level. When does that reduction affect the constitutional obligation of the judicial branch? And, if, as some of you are telling me, the answer is NOW, what should we do about it? I will continue to deliver your message to the legislature. My hands are a bit tied though since the court is acceding to the reduction.

So, back to yesterday’s hearing. There are a couple of highlights I want you all to know. Senator Sears pressed court administrator Pat Gabel on the costs of court security ($2.5M). He thinks they’re spending too much on security. He’s looking for the governor’s recommended $500,000 cut in next year’s budget. He said he’d be willing to discuss court closings if the court administrator has a recommendation on saving some of the “wasted” money spent on security.

In response to the letter to the Chief Justice by the House Appropriations Committee last Friday, she said the court is prepared to convene and lead a process that includes all the parties. (The VBA is one of the parties copied in that letter). She raised two other topics: the potential regionalization of certain dockets and, not closing courts but “right sizing courts”.

When Senator Sears asked about the court’s decision to not fill the Environmental Division manager’s position, Pat said the following: she had been tasked by the supreme court to report to them (within 60 days) on the “regionalization of management”. That was new to me. She had previously told me, as had the Chief, that the court had not made a final decision on filling that position. Now, it appears to be tied to something that we’ve not heard before.

Finally, Senator Sears raised the issue of consolidating probate courts again. As many of you may recall when H. 470, the judicial restructuring bill, was introduced it reduced the number of probate courts from the then 18 to 5! The VBA opposed that in 2010 and the final act settled on 14 courts. He’s bringing it up again as a way to reach the $500,000 savings the governor is looking for. Pat Gabel made it clear that that is not the judiciary’s recommendation.

So, where does this leave us? I expect the budget adjustment debate is over; it’s certainly too late to change anything in the House. Now is the time for each of you to contact your senators and let them know the effect these cuts are having on your clients’ access to justice. As one person, I can only do so much. Nothing beats a constituent contacting a legislator. It would be even better if you could get a client story before your senator.

Thanks for reading. Send me any comments or questions you may have. 

Monday, January 26, 2015

26 January 2015

Anne Galloway, founder of VT Digger, published this report today on the judiciary budget crisis:
it’s a summary of what has been happening in appropriations  committee hearings last week. Although the VBA opposed not only the $500,000 cut in the FY 16 budget year but also the $730,473 rescission in this year’s budget. Unfortunately the judiciary did not contest this year’s cut. My testimony fell on deaf ears since the recipient of that money really didn’t object. No, I don’t know why.

If you followed the link last week to the letters submitted by the court, check it out again today. I’ve added a letter from the chair of the House Appropriations Committee to the Chief Justice. Please continue to contact you legislators, concentrating now on your senators. If you have clients that are being prejudiced by these cuts, relate that case or, even better, have the client contact his or her senator.

On a more positive note, the House Judiciary Committee is scheduling its third hearing on the Uniform Transfer to Minors Act. It looks as though after many attempts, Vermont may finally adopt UTMA, leaving only South Carolina still operating under the UGMA. Updates to the Vermont Limited Liability Company Act and to probate administration have been submitted to legislative council and are being drafted for introduction.

Anyway, here’s a list of bills by title only that may be of interest to some of you. All house bill can be found here:

H. 3- adverse possession
H. 6- shoreland protection standards
H. 12- licensing consumer litigation funding companies
H. 13- regulating flood insurance coverage requirements
H. 23- Uniform Transfer to Minors Act
H. 53- isolation distances for potable water supplies and wastewater systems

S. 3- licensing consumer litigation funding companies
S. 9- improving Vermont's system for protecting children from abuse and neglect
S.17- 10-year statute of repose for actions arising out of improvements to real property
S.26- physician expert witnesses in medical malpractice actions

Wednesday, January 21, 2015

21 January 2015- Focus on the Judiciary Budget

A number of you have been asking about the judiciary budget in light of the rescissions in this fiscal year (ending 30 June) and the proposed base budget reduction in FY16 beginning 1 July. Here is a link to three letters from the Court Administrator’s Office and the Chief Justice going back to August 2014.

The first rescission in August was $181,335. The newest (see the January 12, 2015 letter) is for an additional $224,138, totaling a cut of $405,473. The administration is seeking a $500,000 general funds base budget reduction for next year. Here is the administration’s language in the budget adjustment bill:

(a)      The Court Administrator will propose to the House and Senate Appropriations Committees by March 31, 2015, changes in judicial operations that will yield savings of at least $500,000 in General Funds in fiscal year 2016.  These savings shall represent a permanent and on-going reduction in expenditures.

You already know the judiciary cannot sustain cuts of this magnitude.

We already have three judicial vacancies, and the Judiciary has been required to maintain an extraordinary vacancy savings policy for court staff, as well.  There may well be another judgeship that opens before the legislative session ends. Your Board of Managers’ concern is the impact of these vacancies and cuts on access to justice for Vermonters. The Chief Justice’s letter of January 14th strongly states the court’s opposition to further cuts. Yesterday, in House Judiciary he said that this level of cuts will affect the court’s ability to meet its constitutional obligations.

Now is the time to contact your legislators and let them know of the danger inherent in these cuts. We talk a lot about access to justice and for many that means access for low income Vermonters. Right now we may be heading into a larger crisis in access for everyone. Let’s not let that happen.

Wednesday, January 7, 2015

Guess What day It Is?

Well, the 2015-2016 session is underway. There are some shifts in committee membership, as expected. But, the interesting thing this year is that the House Judiciary Committee has undergone a change such as I don’t ever remember. Five committee members did not seek re-election; two were defeated. The long time Chair, Bill Lippert, is now the Chair of the House Health Care Committee. Here is the current committee membership:

Rep. Maxine Jo Grad, Chair
Rep. Willem Jewett, Vice Chair
Rep. Tom Burditt, Ranking Member
Rep. Chip Conquest
Rep. Bill Frank
Rep. Martin LaLonde
Rep. Marcia Martel
Rep. Betty A. Nuovo
Rep. Barbara Rachelson
Rep. Vicki Strong
Rep. Gary Viens
With all those new faces it will no doubt take some time to bring committee members up to speed on the work they’re about to undertake. It is, of course, the committee we work with most closely. In fact, on Friday morning Chief Superior Judge Brian Grearson and Court Administrator Pat Gabel are giving an overview of the judiciary. I am presenting right after them on the VBA, the VBF, the Access to Justice Coalition, etc.
Other committee of importance are Commerce and Economic Development where we expect to see a bill updating the LLC laws. Here are its members:

Rep. Bill Botzow, Chair
Rep. Michael Marcotte, Vice Chair
Rep. Warren F. Kitzmiller, Ranking Member
Rep. Fred Baser
Rep. Steve Carr
Rep. Maureen Dakin
Rep. Jean O'Sullivan
Rep. Corey Parent
Rep. Heidi E. Scheuermann
Rep. Laura Sibilia
Rep. Valerie A. Stuart
Perhaps most importantly, especially for the judicial branch budget is the House Appropriations Committee. It looks like four new members of that committee this biennium:

Rep. Mitzi Johnson, Chair
Rep. Peter J. Fagan, Vice Chair
Rep. Kathleen C. Keenan, Ranking Member
Rep. Bob Helm
Rep. Marty Feltus
Rep. Mary S. Hooper
Rep. Diane Lanpher
Rep. Anne Theresa O'Brien
Rep. Albert "Chuck" Pearce
Rep. Kitty Beattie Toll
Rep. Matthew Trieber
As always, I’ll do my best to keep you up to date on the happenings under the golden dome; stay warm, and, thanks for reading.

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.