Wednesday, February 10, 2016

Wednesday February 10, 2016



So I haven't reported in a few days and for that I apologize. I am just back from the ABA Mid Year Meeting where I attended my first House of Delegates meeting as a representative of our association. What a great experience. I was impressed by every aspect of the organization of the House, the sincerity and knowledge of the delegates and the seriousness with which they approach every item on the day long agenda. Many thanks to Fritz Langrock, out state delegate, who is a great mentor.

But anyway, you're probably more in what's happening in Montpelier. Las t week the four judges up for retention this year appeared before the Retention Committee. There really weren't any surprises and all four made strong arguments as to why they deserve another six year term. Judge Durkin spoke to reducing the backlog in E division cases since he came to the bench. He also let the committee know how he has sat and will continue to sit in all jurisdictions as needed to fill the needs of the judiciary. He did tell the committee about the staffing challenges the E division has faced and also responded to a question about pro se litigants in his court.

Judge Howard spoke to the committee about the eight new judges; fully 25% of the judiciary is new. That will impact operations as well as judicial college programing. He also addressed the staffing challenges and the caseload increases due mostly to opiate abuse. He did offer a suggestion about low level misdemeanors  and suggested they be diverted or deferred. The only criticism from the surveys was a comment that he could show some frustration and irritability.

Judge Toor said that working with pro se litigants is a challenge and now a large part of the job. That of course raises issues of showing compassion for the people appearing before the bench. Although a judge has to let "people tell their story" there needs to be a balance between the time that takes and the need to make  case to resolution. She talked about the pro se clinic she began in Chittenden County. She makes an effort to write in "plain english". The committee was impressed with her reaching out to jurors after the end of a trial, as well asher offering to give feedback to the lawyers. Some of the comments in her surveys went to her being very much a judge who follows or insists on following the rules. She admitted that she is critical if the parties are not prepared. There was a discussion about whether Vermont should continue to recruit "generalist judges"  and that morphed into a conversation about rotation.

Judge Mello was last; he spoke to his background and his practice before joining the bench. As this was his first retention hearing he didn't face much criticism except for one reviewer who criticized his choice of words in a sentencing hearing. Clearly, he recognized that and has been more careful about this choice of language.

Tomorrow, Thursday the 11th, the committee will hold a public hearing at 7 PM in Room 11 at the statehouse to hear from anyone who wants to be heard on any of these judges. I'll report on that after Friday. As always, thanks for reading.

Wednesday, February 3, 2016

Wednesday, February 3, 2016


Yesterday I sat through the presentation of Vermont Auditor of Accounts Doug Hoffer's report on the judiciary's collection of public defender co-pays. If you haven't seen the news reports or read the report, it essentially concluded that the judiciary is only collecting about a third of the amount ordered. His report can be found here:

http://auditor.vermont.gov/sites/auditor/files/PD%20Fee%20Collections%20Report%20-%20Final.pdf

As the auditor said, "to the extent you folks are looking under rocks for money", every dollar not collected impacts the state's finances.His main criticisms of the judiciary is that they don't do anything to collect what the court ordered. Now, of course, this population of defendants may not have a great ability to make payments but a court did order something to be paid. Also, he criticized the court by saying, even though it does have a collection function, they don't collect this money as it isn't theirs but goes into the public defender special fund.

The court administrator and the chief superior judge are expected to reply this afternoon. Their comments to the report can be found in the link above beginning on page 20. I'll report back after that.

Also, this afternoon the judiciary will be presenting its ideas on lightening the load. I've been assured that the VBA will be able to bring in its witnesses to address those things the  court wants to pursue. If you are members of the VBA Sections on Probate, Family, Municipal, or Workers' Comp you've already read most of that through our list serves.

Tonight is the initial meeting of the Joint Committee on Judicial Retention. They will be interviewing Judges Durkin, Howard, Mello and Toor beginning at 5PM. Again, I'll report on that tomorrow.

Thanks for reading.

Tuesday, January 26, 2016

Tuesday January 26, 2016



By now those of you in the Probate and Trust, Family Law, Municipal Law and the Worker’s Comp Sections are well aware of the Supreme Court’s proposal to “lighten the load”. The draft, dated April 2015, makes many procedural changes, especially to review of initial decisions, and was widely panned by Section members. I’ve collected all those responses and will be delivering them, without attribution to the House Judiciary Committee when it begins to consider this issue a week from Thursday.
But that’s only the beginning; there will be other hearings. Many of those Section members have offered to testify, mostly in opposition to the proposals. I’ve reached out to VTAJ who worked with us last April to stop a change in the workers’ comp are; that proposal is back again. No, I can’t explain why. BTW, if you’re not a member of any of those Sections but do practice in those areas and want to learn more, you can do two things. First, join the Section on the VBA website and second, email me and ask for a copy of the proposals. Since it is not yet a bill I can only forward you the draft that I have in email format.
You should also know the VBA is working on the call center fiasco and will do whatever it takes to see that you are not forced to waste your time using that method of communication with court staff. Once again I’ve asked for the help of the trial bar through VTAJ and hopefully together our message will be heard.
Sorry that this update is so quick and so short; more as I know more.

Thanks for reading. 

Tuesday, January 19, 2016

Tuesday, January 19, 2016


This is my first post of the adjourned session even though we at the start of week three. There has been a lot of news coming out of Montpelier relating to the suspension of a sitting senator, marijuana legalization, and re-evaluating Act 46 to raise or remove the spending cap. Just this morning the House was set to debate the raising of the cap but the bill was pulled back into the Education Committee after the Agency revealed it provided school districts with erroneous per pupil spending amounts. This isn't the first time something like this has happened. You may recall from last fall the issue with underestimating the impact of the medicare spending increases.

With all the focus on education spending and recreational marijuana a lot of the things I am following have taken a back seat. For example, I'll direct your attention to H. 206, a bill dealing with notaries public. Here's a link to the bill:

http://legislature.vermont.gov/assets/Documents/2016/Docs/BILLS/H-0206/H-0206%20As%20Introduced.pdf
I have been working on an exemption for members of the bar and have discussed that both with the Office of the Secretary of State as well as the Chair of  the House Committee on Government Operations.I think we can accommodate those who feel the bill is necessary (and it does make some good improvements to an otherwise unregulated system) while not burdening you with requirements that seem to apply to other groups. More on this as it moves along.

Senator Peg Flory introduced S. 193, a bill that modernizes and restructures our law regarding decedents' estates. This bill is the product of an effort by your Probate and Trust Section led by Chair Bob Pratt. It's a lengthy bill as you can imagine and it will not get any attention this year. I see it as priority for us for the 2017 session. You can read it here;

http://legislature.vermont.gov/assets/Documents/2016/Docs/BILLS/S-0193/S-0193%20As%20Introduced.pdf

The Senate and House Natural Resources Committees are both working on S. 123, an act relating to standardizing procedures for permits issued by the DEC and to make appeals from those decision son the record. The bill is "being written on the fly"; by that I mean the department is taking comments and working with interested parties to draft a good compromise. Again, I'll keep you posted. Those of you in the Environmental Law Section following the list serve discussion are already familiar with this one.

The judicial retention process is about to begin for four judges this year. Here is the tentative schedule:

Wed. 1/27 Organizational meeting; Committee meets to set hearing schedule
5:00 p.m., Room 10 and discuss preliminary matters


Wed. 2/3 First Comm. meetings with Judges 5:00 p.m., Room 10
   Hon. Thomas Durkin
   Hon. David Howard
   Hon. Robert Mello
   Hon. Helen Toor


Thurs. 2/11 Public hearing 7:00 p.m., Room 11


Wed. 2/17 Follow-up Comm. meetings with Judges 5:00 p.m., Room 10


Wed. 2/24 Comm. Meeting to deliberate, vote and make reporting 5:00 p.m., Room 10 assignments



Thurs. 3/17 Joint Assembly (if Comm. is not ready, postpone by Joint
10:30 a.m. Resolution until 3/24)

Finally, the VBA Board is continuing to work on issues relating to the call center in Burlington. Many of you have weighed in with your views on how it's working, or not working. Please, if you haven't yet commented and have something to say on this please share it with me.

Thanks for reading.

Monday, May 18, 2015

Monday, May 18, 2015


It’s been two weeks plus since I posted to this blog; but there’s a reason for that. Let me explain. At the end of the session, especially after conference committees begin working on resolving differences between the two chambers, lots happens in the background. More than other times during the session, conversations happen outside of the committee room and off the record. Things move quickly and change often, too often actually. It’s hard to say where things are at any point in time. It’s best to do our work quietly and in one on one or in small group conversations.

The legislature adjourned as you know about 11PM Saturday. The funding for the judiciary held at $43,945,757  (H.490) even though the revenue bill deleted the $10 IFP fee. The legislature passed H.489 which includes increased fees mostly in probate cases to support the judiciary. The only change from the earlier senate passed version was the elimination of the $10 fee to apply for "in forma pauperis".My concern was that the predicted $35,000 that fee was to raise would be subtracted; didn’t happen.

As we’ve reported before, Dan and I reached out to his Representative Mary Hooper.  We spoke to her on numerous occasions. She became a true advocate for the judiciary. After the roll call vote last night on the budget Mary explained her vote as follows:

Rep. Hooper of Montpelier explained her vote as follows: “Mr. Speaker:
Vermonters’ access to justice is protected in this budget. The Judiciary is receiving a $2 million increase which will ensure – unlike 6 years ago – our courts will be open every day.”

Also, the chair of the Senate Appropriations Committee addressed the same issue on the floor of the senate during its passage of the budget. She said that senators had heard from many members of the bar who raised concerns about access to justice and that spurred the committee to look for ways to fully fund the courts. In addition, Vermont Legal Aid had a cut from the house passed bill restored in the senate.

The conference report contains some policy language about the courts. It can be read on pages 2488-2492 here:

The capital bill (H.482) passed on Thursday with the Lamoille courthouse funded at $5M. The court's case management system will get $500K next year and $4M the year after. This is down from $750K next year and $5M the year after.

Real estate practitioners should be interested in what the legislature did to raise funds to clean up Lake Champlain. H. 35, a bill to improve the quality of state waters contains a .02% surcharge on the property transfer tax. Here is the language of the bill:

        Property Transfer Tax Surcharge; Water Quality Long-Term Financing Report

Sec. 38. 32 V.S.A. § 9602a is added to read

§ 9602a. CLEAN WATER SURCHARGE
There shall be a surcharge of 0.2 percent on the value of property subject to
the property transfer tax under section 9602 of this title, except that there shall
be no surcharge on the first $100,000.00 in value of property to be used for the
principal residence of the transferee or the first $200,000.00 in value of
property transferred if the purchaser obtains a purchase money mortgage
funded in part with a homeland grant through the Vermont Housing and
Conservation Trust Fund or which the Vermont Housing and Finance Agency
or U.S. Department of Agriculture and Rural Development has committed to
make or purchase. The surcharge shall be in addition to any tax assessed under
section 9602 of this title. The surcharge assessed under this section shall be
paid, collected, and enforced under this chapter in the same manner as the tax
assessed under section 9602 of this title. The Commissioner shall deposit the
surcharge collected under this section in the Clean Water Fund under 10
V.S.A. § 1388.

Sec. 39. REPEAL OF CLEAN WATER SURCHARGE

32 V.S.A. § 9602a (Clean Water Surcharge) shall be repealed on July 1, 2018.

NOTE: the surcharge in Sec. 38 takes effect on passage.
So the date the governor signs the bill is the date to watch for. As soon as I know that I will let you all know.

I can report that three bills we were interested in this year have all been signed into law. They are the Uniform Transfer to Minors Act; the revised Uniform Limited Liability Company Act; and the Uniform Interstate Family Support Act.

So, for now, this wraps up my legislative reporting. I want to thank all of you for your help during this session. Tom Moody and Peter Erly led the effort to get the LLC bill through the process deftly and quickly. Penny Benelli helped the UIFSA to pass. Stephanie Willbanks and Joe Cook’ s efforts guaranteed passage of the UTMA. Without their help and willingness to volunteer their time, none of this would have happened. It’s a real testament to the members of the VBA and their service to our profession and to all Vermonters. You all make me proud to work for you.

As always, thanks for reading. Enjoy summer. The legislature will be back before we know it! 
Yikes, I can’t believe I just said that.



Wednesday, April 29, 2015

Wednesday April 29, 2015



H 489, the revenue bill and H 490, the budget bill are done and on the Notice Calendar. Action will occur Thursday and Friday; then both will go into conference with the House, hopefully late Friday. This sets adjournment for two weeks from Friday.
In H. 489, sections 33 and 34 contain the new fees that support the addition back of the 500K the administration wanted to cut. The language is on pages 29 to 35 of Addendum 1 to today’s Senate Calendar here:

Also, sec. 87 calling for a report from the Tax Dept. on extending the sales tax to services replaces the language we opposed yesterday in our testimony. Here is that section:

Sec. 87. SALES TAX PROPOSAL
(a) The General Assembly concludes that the structural deficiencies in
Vermont’s current revenue and budgeting structure, combined with a change in
the State economy from an economy based on goods to an economy based on
services, requires an examination and rethinking of Vermont’s current sales tax
base.
(b) On or before January 15, 2016, the Commissioner of Taxes shall report
to the Senate Committee on Finance and House Committee on Ways and
Means on how the Department of Taxes would implement an extension of
Vermont’s sales and use tax to select consumer services, not to include
business to business services, most commonly taxed in other states. The
extension of the sales and use tax modeled in the report shall provide two
scenarios designed to raise both $15 million and $30 million in revenue in
Vermont on an annual basis. The report shall include a draft of proposed rules
which shall identify specific services by industry type that are taxable or not
taxable. 62
(c) On or before January 15, 2016, the economists for the Legislative and
Executive Branches, with the assistance of the Joint Fiscal Office and the
Department of Taxes, shall file a joint report to the Senate Committee on
Finance and the House Committee on Ways and Means on the fiscal impact of
further extending Vermont’s sales and use tax to a broader range of consumer
services. The report shall analyze the short- and long-term economic impacts
to the State of Vermont of such an extension, and contrast those impacts with
the short- and-long term projections of Vermont’s current sales and use tax
revenues without the changes in the proposal.

In 490, read E. 204; this contains some of the "lighten the load" language the judiciary wanted. It also includes a statement of intent in E. 204.15 supporting filling the judicial vacancies. See pages 89-93 of today’s Addendum 2 to the Senate Calendar:

Here are the funding provisions for the judiciary in the Senate version (see Sec B. 204):
Sec. B.204 Judiciary
Personal services 35,212,260
Operating expenses 8,683,467
Grants 76,030
Total 43,971,757
Source of funds
General fund 38,465,850
Special funds 2,667,462
Tobacco fund 39,871
Federal funds 473,301
Interdepartmental transfers 2,325,273
Total 43,971,757

The Senate increased the funding by $758,000 over the total passed by the House. As I said above, we’re waiting for floor action tomorrow and Friday, followed by a committee of conference. It’ll be a while.


Thanks for reading. 

Tuesday, April 28, 2015

Tuesday, April 28, 2015



So I just returned from the Senate Finance Committee where I was the first of 21 witnesses to testify about the latest draft of the tax bill. I commented on sections 49-54, the extension of the sales tax to services. I know some of you have already written to your senators stating your opposition and for that we thank you. I did not want to address the issue of the increased administrative burden on you if the tax is enacted. Instead, I went after language in the bill that I found confusing and troubling. Here’s some of what I said. 
In Sec 49, the definitions section, “business to business” transactions are exempt. Over lunch today talking with a local lawyer he raised the following hypothetical. If he were to do title work, for example, for a husband and wife he would need to collect a sales tax. But if that husband and wife were to form an LLC or partnership, they would be exempt from the sales tax!

If “business to business” transactions are exempt that would mean that the tax would only apply to individuals who are perhaps the least likely to be able to absorb and afford such a tax. The tax would apply to a victim of domestic abuse hiring counsel to represent her. It would apply too a custodial parent trying to collect child support or enforce an order of the court. It would apply to the landlord trying to evict a tenant after going months without collecting any rent. Likewise, it would increase the cost to a tenant who needed representation in a case on uninhabitable premises. I told the committee that taxing Vermonters such as these is bad public policy and will only increase the number of self-represented litigants in an already overburdened court system.

Also, if you look at Sec. 54 there is troubling language that sets the tax rate at 4.75% “of the sales price charged…” Really? Is the tax on the amount billed or the amount actually collected? We all know those numbers are rarely the same.

Finally, I raised what I consider to be a constitutional issue in criminal cases. If I were to exercise my 6th Amendment right to “have assistance of counsel” in my defense, can the state tax me on what I pay my attorney? Isn’t that a tax on exercising my rights? Is it any different than taxing lobbyists and their clients?


In any event I think the committee will leave us in the bill as there is hardly time for deliberation, discussion and amendments now. The committee is hoping to vote the bill out tonight! Then it’s off to conference where I expect and hope the services tax goes away. The budget bill can’t be finished without knowing what the tax bill will raise. The capital bill can’t be finished until the budget is done. Stay tuned. As always, thanks for reading.