Winter 2010-#2. Board of Managers of the Vermont Bar Association Report on Proposed Changes to the Judiciary.

Vermont Bar Journal

2010.

Winter 2010-#2.

Board of Managers of the Vermont Bar Association Report on Proposed Changes to the Judiciary

THE VERMONT BAR JOURNALVolume 35, No. 4Winter 2010Board of Managers of the Vermont Bar Association Report on Proposed Changes to the JudiciaryIntroduction

As the representative organization for legal practitioners in the state, the Vermont Bar Association is committed to providing all Vermonters with access to justice and efficient and effective legal services. This work begins and ends with the judicial system. In its Report to the Legislature, the Vermont Commission on Judicial Operation proposes several important changes to the current system that will change how Vermonters access the court system. In many instances, the changes proposed by the Commission are long overdue modernizations and efficiencies that the Bar welcomes. In a few cases, though, the changes appear to be driven more by budget numbers than by systemic concerns. To assist members and the general public in sifting through these issues, the Board of Bar Managers has prepared this summary and analysis of the major issues that the Commission has identified as part of its Report and proposal.

Full Funding of the Judiciary

It is the uniform consensus of the Board of Managers that the most difficult issue facing the judiciary over the immediate and foreseeable future is a lack of funds. This is evident in the most controversial sections of the Judicial Commission's Report, which come from the unenviable task of trying to revise a system that will provide consistent service and access to justice with fewer and fewer resources. The Board of Managers believes that continuing to under-fund the judiciary, a co-equal branch of government, is tantamount to the denial of legal process and will limit the public's access to justice.

Whether it is a family struggling through divorce proceedings, a society's need to convict and punish criminals, the resolution of business differences, or the orderly resolution of a parent's estate, the judiciary is a fundamental part of how Vermont functions. To the extent that the Board of Managers disagrees with the Commission's Report or was unable to come to a strong consensus on a particular issue, our debate reflected the reality of making impossible decisions that negatively impact the public's access to justice, regardless of how such a decision is made. In just one example, the Board of Managers considered that the amount spent on education-much of which is raised through property tax-is roughly fifty times that which is spent on the judiciary, and the Board of Managers asks whether an adjustment to revenue allocation and spending at the state level is in order.

For these reasons, the Board of Managers believes that the bar must take as its lead position the message that the only way to avoid the impacts promised either through the Commission's recommendations or as the result of not adopting the Commission's recommendations is committing to consistently funding the judiciary at the level necessary for it to function and deliver the services Vermonters need and expect.

A Unified Judiciary

The major ambition of the Judicial Commission is to develop legislation that will effectively unify the judiciary on an administrative and financial level while improving access and maintaining the quality of adjudication. Currently, the Supreme Court and the Court Administrator's Office oversee and control the budget and management for the district, family, and environmental court systems, and the Judicial Bureau.

The superior and probate courts are hybrid systems. The superior court clerk, who serves as the manager of the superior court, is appointed by the county-elected side judges, but the clerk is paid by the state. The superior court staff, however, is paid by the county, and they serve at the direction of the clerk and the side judges. Probate court staff is paid by the state, but they are hired by the county-elected probate judges. Some superior court and some probate court expenses are paid by the state and some are paid by the county. Side judges receive a county salary, but they are also paid by the state whenever they choose to sit in certain types of cases in family court, superior court, or traffic court.

The practical result of this system is that the judiciary has little leeway or ability to control its budget and the management of courts within its system. Instead, the judiciary is required to pay employees, such as superior court clerks and probate court staff, without the ability to consolidate positions, re-assign staff in certain courts, or focus on which courts have the greatest need across the entire system. State- wide disparities in court staff pay, work requirements, and benefits have resulted and have had an effect on morale for both court employees and court users.

There is no question that the judiciary as a whole is under-funded and additional cuts to the judiciary's budget will further diminish its ability to deliver legal services in a timely manner and will limit the public's access to justice. The Board of Managers recognizes, however, that reductions to the judiciary, like all state government entities, are inevitable in the current fiscal situation. Even if the legislature declines to adopt any of the other specific cuts or proposals, we believe that it is essential for the legislature to create a unified judiciary for the purposes of budgeting and management. We believe this is a conclusion shared by the Board and the bar as a whole. While the Board of Managers may...