Schedule for November 2009

    The study panel is also recommending the complete unification of Vermont’s court system, currently split between the state and county levels, a reduction in the number of probate courts, and the elimination of the judicial functions currently performed by the assistant judges.

    The commission was charged with finding nearly $1 million in savings from the judiciary budget and is to report its findings to the legislature in January. The commission will meet Friday morning to discuss the final draft of the report.

    The panel claims its proposed changes would save $1.2 million in general fund spending and another $1.2 million in county taxes.

    Currently, the district and family courts are state courts, while the probate and superior courts are county courts. Some county court personnel are paid by the county and some are paid by the state. The counties also receive the fees generated by the small claims court to help cover their court costs.

    Under the proposal, each county, with the exception of Grand Isle and Essex, would have a single superior court with a single clerk and a single presiding trial judge. Each court would have four divisions: probate, criminal, civil, and family. Additional judges would serve under the presiding judge.

    The commission argues that this arrangement would allow for consolidation of resources, eliminate redundancies and create greater flexibility in the allocation of resources. Currently, the family court in particular is strapped for resources.

    The consolidation would generate $650,000 in savings, according to the commission. Closing the Grand Isle and Essex courts would save the state another $350,000.

    However, taking on the county courts would add $3.3 million to the budget, some of which would be offset by transferring $700,000 in small claims court fees to the state budget.

    Another million in savings would be generated by shuttering all but five of the probate courts.

    Probate court judges are elected and all but the Chittenden County judge are part-time. Under the proposal, the probate judges would still be elected, but from much larger areas. Chittenden County would continue to have a probate judge, but the rest of the state would be consolidated into regional courts comprised of four or five counties. The multiple part-time judges would be replaced by four full-time judges, and staff at the courts would be consolidated at a projected savings of $1.1 million.

    It is this proposal that has drawn the most criticism.

    Probate court judges have questioned the commission’s methodology and conclusions.

    In reaching its conclusions the commission examined the number of cases handled by the probate court in Chittenden Court versus the number handled in other courts. In determining the number of cases handled, the study looked at the number of cases opened and closed in the court in a given year. The Chittenden Court handled 727 cases per judge versus 188 cases per judge in the rest of the state.

    In an article in Vermont Bar Journal, probate judges Joanne Ertel and George Belcher challenged those numbers. Many probate cases involve guardianship, particularly of elderly persons with dementia, and those cases remain open as long as the person has a designated guardian. Thus, looking at the number of cases opened and the number of cases closed does not give an accurate picture of the number of cases actually being handled by the probate judges, said the judges.

    In addition, 80 percent of probate cases have at least one pro se party, a person who is appearing without an attorney.

    Instead of looking at the number of cases opened and closed in a given year, Ertel and Belcher argue the Commission should have used the weighted caseload numbers. Those numbers, according to Ertel and Belcher, indicate that the number of full-time judges necessary to handle the caseload in the trial courts – family, district and superior – is 43.3 and 6.4 probate judges would be needed to handle probate court. Currently, the part-time hours worked by the probate judges are the equivalent of 6.7 full-time judges, according to Ertel and Belcher. The trial courts have only 35 full-time judges.

    Finally, Ertel and Belcher point to the absence of anyone from the probate court system on the commission. “It is ironic that a commission whose purported goal was to unify the judiciary would exclude a component of the judiciary from the process of unification,” Ertel and Belcher wrote.

    An initial proposal to remove potentially contentious cases from the probate court to the superior court has been replaced with a proposal to make probate cases immediately appealable to the Vermont Supreme Court and to use the existing court record rather than making the appeals de novo proceedings.

    Like the probate judges, the assistant judges are elective offices created by Vermont’s constitution. The assistant judges oversee the county budget and sheriff, and appoint the superior court clerk. They also sit on some cases, assisting the trial judge with determinations of fact.

    Assistant judges also may preside over non-contested divorces, traffic court and small claims court. The Commission is proposing the elimination of all of the assistant judges judicial functions, leaving only their administrative role.

    It would be less expensive to hire a hearing officer to hear traffic court cases and attorneys at a cost of $75 per day to oversee small claims court, according to the Commission.

    Consolidation of the courts would allow for the easier introduction of shared technological improvements such as electronic filing, which would reduce the amount of time spent on clerical duties. Some of the personnel freed up by technological improvements would be used to assist Vermonters filing pro se, according to the commission.

    Tom Garrett, executive director of Law Line of Vermont, which provides legal assistance to poor Vermonters, said the probate courts “have really set a good example on how to be a pro se friendly court. I would really like to see that environment carried forward to other courts.”

    “In order to make that happen, the state has to have control over all the courts,” Garrett said. Currently, the state has been unable to put all courts on the same computer databases, according to Garrett.

    Asked if the closing of the Essex court, located in Vermont’s poorest county, would hinder the access of poor Vermonters, Garrett said the current court is located in a remote corner of the county and many Essex residents would likely find it easier to go to the court in St. Johnsbury. In addition, there is often not a judge present in the Essex courthouse.

    “By and large these changes will make more services available” by freeing up resources, said Garrett.

    Garrett also supports the pro se centers proposed by the commission to make it easier for Vermonters to file court paperwork on their own. Law Line is currently working with the family court to develop pro se forms.

    In September the Franklin-Grand Isle Bar Association approved a resolution opposing the closing of the Grand Isle courthouse and the proposed changes to the probate court. Messenger efforts to reach Joe Bauer, the attorney who proposed the resolution, were unsuccessful as of press time.

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