Wednesday, January 20, 2010

A busy Wednesday!

What a day. It started as most do with a committee hearing on judicial restructuring. Retired District Court Judge Paul Hudson testified by telephone saying that the recommendations of the Commission on Judicial Operation (CJO) both save money and make sense. But in response to a question by Rep. Koch about the probate judge matter, he admitted to “no huge degree of certainty” but would rely on the estimates from the National Center for State Courts. Remember they originally calculated 6.3 probate judges would be needed. Judge Hudson said “there will be some disruption” and compared it to the change from municipal courts to the district court in the late 60s.
Rep. Marek called three of the five districts unworkable, i.e. the northern and the two southern districts. Judge Hudson called for reworking the northern district or, surprising everyone, appointing an attorney as an acting probate judge to share the workload! He had no real response to Rep. French’s inquiry as to whether the weighted caseload study may have bee “a little skewed”.
I spoke with Rep. Sweaney, Chair of the House Government Operations Committee about what role it was going to play. She will not “have” the bill in committee but will work on it even though it’s still in judiciary. Her concern remains the number of probate judges (districts).
After an hour long break to consider H. 533, the military parental rights bill, which I will report on below, the committee heard from Eric Avildsen, Executive Director of Vermont Legal Aid. Eric handed out a memo that closely tracks the position of the VBA Board. VLA is strongly supportive of the bill, especially the unification. He first argued for full funding, taking issue with Chairman Lippert and Speaker Shap Smith’s comments in Montreal. In short Eric is most concerned with Vermonters’ access to the courts, especially the low income population and those Vermonters with disabilities. He also raised issues with only 5 probate judges (but is still working on what that number should be) and has concerns about access in the “satellite” courts of grand Isle and Essex Counties.
I think I forgot to mention that last week Judge Davenport provided the committee with a short memo of jurisdictional changes to improve efficiency of the courts. It contained two items: first, extend magistrate jurisdiction to establishment of parentage, temporary parental rights and responsibilities, and parent child. The second concerns consolidating proceedings in the judicial bureau by adding snowmobile/boating tickets and fire prevention tickets.
The most interesting part of the day was the afternoon testimony from VLS Constitutional Law Professor Peter Teachout and Legislative Counsel Erik FitzPatrick. They both agreed and disagreed on whether the legislature’s removal of the “adjudicative function” of side judges would violate the Vermont Constitution. Teachout said it does but offered a work around if side judges sat at the request of the presiding judge or of one of the parties. If so, participation would be mandatory and it would only be for evidentiary hearings where issues of credibility etc. would come into play.
Erik’s take was a little different. After reviewing what legislative history he could find from the 1974 constitutional amendment he agreed that the legislature does not have the power to eliminate the judicial functions of side judges. But he feels that the terms “judicial function” and “adjudicative function” mean something different. And for that he relies on In re Assistant Judge William Boardman decided in May 2009. the Vermont Supreme Court wrote: “Nothing in the constitution or its implementing legislation suggests that the scope of ‘judicial functions’ or ‘judicial duties’ subject to discipline is narrowly limited to adjudicative matters.” Some committee members did not agree with their counsel’s advice!
In the meantime your Board of Managers is looking at specific language in H. 470 and is recommending changes. We’re meeting with Judge Davenport tomorrow morning to present our issues to see if there may be some common ground. Either way, I owe a memo to the judiciary committee with our language, which I will try to get to them by Friday.
So, as I mentioned the committee took a short break to return to H. 533, the military parental rights bill. I reported on yesterday’s proceedings. As I wrote yesterday I didn’t get a chance to weigh in on behalf of the VBA Board’s support of the bill. Today I followed the testimony of Judge Davenport who addressed drafting issues and spoke to the impact of the bill on the family court without taking a position on the policy of the bill. She had a few concerns that were in fact already addressed during Penny and Amber’s testimony on Tuesday. I offered to work with all parties to bring the bill together and expect a redraft tomorrow morning. The Chair of the committee Bill Lippert then surprised all of us I think when he said he wants this done and out of committee by Friday! Now that’s a tall order but that’s the process sometimes. In addition, the committee seems to moving toward the bill’s taking effect immediately. That means that family lawyers are going to have to stay tuned and pay attention to this as it moves. The VBA will of course continue to post news items about it and may have to quickly put together an educational program so that all of you are up to speed on the changes. This bill, remember, has 88 sponsors!
H. 461, an act relating to small estates is out of committee and on the House calendar for Notice tomorrow. That means it will be acted on Friday. Here’s what it looks like now:
H. 461
An act relating to small estates
Rep. Koch of Barre Town, for the Committee on Judiciary, recommends
the bill be amended by striking all after the enacting clause and inserting in
lieu thereof the following::
Sec. 1. 14 V.S.A. § 1901 is amended to read:
When application is made to the judge of probate for the
appointment of an administrator or executor of an estate, there may accompany
the petition, the following:
(1) A true and complete inventory of the estate of the deceased,
appraised under oath at its true cash value;
(2) A receipt showing that the funeral expenses of the deceased have
been paid, or a personal bond in an amount determined by the judge of probate to be
reasonable, conditioned for the payment of the funeral expenses of said the
deceased, within one year from the date of death; and
(3) The will, if any.
Sec. 2. 14 V.S.A. § 1902 is amended to read:
(a) Upon receiving and filing such petition, the judge of probate may make
such investigation of the circumstances of the case and the facts set forth in the
petition, as he or she deems proper and necessary, the
(b) The court may grant administration of the estate to the
petitioner or some other suitable person forthwith without further notice, and
may issue letters of administration to the administrator or letters testamentary
to the executor without requiring further bonds, if from the petition and the
investigation it appears to the satisfaction of the court that:
(1)(A) the deceased left a surviving spouse or children of any age, or
both; or
(B) the deceased left a surviving parent or parents but no spouse or
(2) the deceased died seized of no real estate; and
(3) the personal estate of the deceased, appraised at its true cash value as
of the date of death, amounts to not more than the sum of $10,000.00.
Sec. 3. 14 V.S.A. § 1903 is amended to read:
(a) In intestate estates whenever it shall appear to the satisfaction of the
judge of probate that an administrator appointed under sections 1901 and 1902
of this title has paid or caused to be paid the funeral and burial expenses of said
deceased, and has paid over all the balance and residue of said estate in
accordance with the provisions of chapter 42 of this title,
the court may forthwith discharge the administrator without further accounting
and without notice.

Because of my schedule today I was unable to get down to a hearing in the Senate Finance Committee where Paul Hanlon, Mark Langan and Hal Miller were scheduled to address the committee on S. 173, the bill relating to technical corrections to the Vermont Trust Code. I was told by a staffer of the committee that the testimony went well; there was no opposition; and there were a few amendments that will be approved tomorrow afternoon and that bill will head to the Senate Calendar. I’ll get those specifics to you as soon as I see them.
Sorry that this post is so long but a lot happened today. Thanks for reading.

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