Fall 2009-#14. The Probate System in Vermont: Should it be Dismantled?.

Author:By Hon. George K. Belcher and Hon. Joanne M. Ertel
 
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Vermont Bar Journal

2009.

Fall 2009-#14.

The Probate System in Vermont: Should it be Dismantled?

THE VERMONT BAR JOURNALVolume 35, No. 3Fall 2009The Probate System in Vermont: Should it be Dismantled?By Hon. George K. Belcher and Hon. Joanne M. Ertel"Difference of opinion leads to enquiry, and enquiry to truth, and that I am sure is the ultimate sincere object of us both." Thomas Jefferson, 1815

Introduction

The probate courts have developed as unique entities within the Vermont judiciary. The differences between the probate courts and the other courts are many. First, the probate courts operate on a shoestring budget outside the bureaucratic structure of the judiciary. Second, the probate courts do not have the ancillary support systems of the other courts: no GAL program, no mediation program, no case managers, no contract attorneys, and no parent coordinators. As a result, probate judges do much work themselves that would be delegated in other courts. Third, probate judges are elected(fn1) rather than political appointees like the other judges,(fn2) and they are not required to be attorneys.(fn3) Finally, the probate courts are dependent upon county government for their equipment and space.(fn4) Despite the constraints, the probate courts seem to work-which can be measured, in part, by the small number of appeals and judicial conduct complaints. A radical change is now being proposed that, if adopted, will transform and dismantle the probate courts.

In 2008 the Vermont Legislature authorized the Vermont Supreme Court to convene a commission on judicial operation that included members from all three branches of government and the public.(fn5) The Commission is charged with fling a fnal report on October 20, 2009, which will include proposals and draft legislation. Cost savings were a huge impetus for this Commission. In anticipation of the fnal report, the Commission met on September 11, 2009.(fn6) At that time the Commission considered a report of the Working Group on the Restructuring of, and Access to, the Judiciary. This report, which would dramatically alter the face of the probate courts, was received favorably by the Commission, subject to possible adjustment by other data. This article examines the changes that were recommended by the working group . It examines how the composition of the Commission, the process, and the method of data collection shaped the conclusion. The article then explores the potential consequences of the recommendations if they are accepted by the Commission or by the Vermont Legislature. It concludes that the recommendations cannot be supported because of the fawed nature of the process, the inaccuracy of the data relied upon, and the failure to adequately weigh the consequences of the recommendations. The article closes with suggestions regarding potential alternative sources of savings and effciencies. It is not the intent of this article to suggest that there cannot be cost savings within the probate court or that the probate court couldn't beneft from some change. While the authors strenuously disagree with the methods and conclusions of the workgroup, we do respect the effort and time which has been devoted to this exercise by the Commission members. Finally, the authors recognize and do not intend to diminish the extreme stress placed upon the legislature to cut costs.

The Composition of the Commission

The Vermont Supreme Court was charged with selection of the members of the Commission. It deliberately excluded from the Commission individuals familiar with the workings of the probate court. It specifcally did not include a probate judge, a register, or an attorney who practices regularly in the probate court.(fn7) The decision was justifed by the explanation that a fresh look from outside the system was needed and that the inclusion of "stakeholders" might slow the process. Nonetheless, the Commission did include two trial court judges who theoretically are "stakeholders" as well. 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 unifcation. The Commission also understandably included two Supreme Court Justices. It was surprising to learn that the remaining three Supreme Court Justices were recruited to work on the subgroups that made recommendations to the Commission. Essentially, the entire Supreme Court was involved in the inner workings of the Commission.(fn8) The Court Administrator's offce provided staff support and signifcant data to the Commission. The Court Administrator attended all Commission meetings. Although the Commission included members of the legislative and executive branches of government, its work has been driven by the Supreme Court and the Court Administrator's offce. It is diffcult not to be skeptical of a Commission that, by design, excluded the group most familiar with one of the systems being examined.

The Process

While the process purported to be open, a closer look at the process suggests otherwise. Most of the Commission meetings were not publicly noticed, so there was little opportunity for others to attend.(fn9) Late attempts to show that the process was "open and transparent" do not ring true when the interim report and the early discussions about principles and approaches were made without public hearing or even timely minutes. The probate judges requested minutes of Commission meetings in April 2009. No minutes were provided until the meeting on September 11, 2009, when the Commission gave wholesale approval to minutes for fve meetings dating back to November of 2008.(fn10)

The Commission made an effort to "build" consensus. The many "focus groups," or meetings with specifc groups, were preceded by a survey addressing certain issues, including regionalization of courts.(fn11) During the focus group meetings, the moderator would prompt discussion about the survey, including the issue of consolidation. Notes were taken and reported.(fn12) It is no wonder, however, that one of the frst conclusions from the "Working Group on Consensus Building and Outreach"(fn13) was that consolidation was a "theme" of the focus groups.(fn14)The information from the focus groups, the surveys, the data, the interpretation of the "themes,"(fn15) and the consideration of solutions have been presented and delivered...

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