Winter 2010-#3. The Commission Report: Probate Analysis and Response.

AuthorBy Hon. Ernest Tobias Balivet

Vermont Bar Journal


Winter 2010-#3.

The Commission Report: Probate Analysis and Response

THE VERMONT BAR JOURNALVolume 35, No. 4Winter 2010The Commission Report: Probate Analysis and ResponseBy Hon. Ernest Tobias Balivet"Doing nothing is not an option."

Justice John A. Dooley III

"Dismantling the best parts of the system is not a solution."

Probate Judge Ernest Tobias Balivet


This article addresses the Vermont Commission on Judicial Operation's "Final Report to the Legislature" issued November 6, 2009. The Final Report proposes $1,221,665 in budget cuts, achieved almost entirely by reductions in the $2.9M probate share of the $36.9M judiciary budget.(fn1) The Final Report is ultimately a flawed work product because the Commission: * engaged in a rushed procedure; * engaged in a selective, rather than comprehensive, analysis; * misapplied and failed to apply available data and accepted analytical approaches; and * Miscalculated the potential savings. This article also discusses several potential opportunities for substantial immediate savings in the judiciary budget, as well as an ordered approach to the pursuit of future additional savings.

Questions that may legitimately have been asked of the Commission at the conclusion of its work include:

* Why is there no indication that the "most efficient court" analysis was applied to each of the trial courts? What cost savings would have resulted if it had been? * Why was the workload impact of personnel reductions not discussed? * If staffing can be matched with workload at existing locations, how will regionalization, with increased transportation costs to personnel and parties, save money?

I. The Final Report: A Rush to Judgment Workload Analysis

Central to any analysis of the needs of the judiciary is a system-wide weighted caseload study "to objectively assess the number of judicial officers and court staff required to handle the caseload and whether these resources are being allocated appropriately across the state."(fn2) This is the core data from which all other conclusions are drawn. The Commission held its first organizational meeting November 8, 2008. A state-wide weighted caseload study was not undertaken until May, 2009, and was based upon a four week time frame rather than the recommended eight weeks.

The weighted caseload results and the working group reports were filed with the Commission on the same day, September 11, 2009. The working group reports were adopted as the rough draft basis for the Commission's final report.(fn3)No significant changes occurred between the working group reports and the final report. No comprehensive examination of the weighted caseload results was ever undertaken. The Commission never had an opportunity to analyze the weighted caseload results.

Computation Errors

To arrive at dramatic "compelling" caseload comparisons, the Commission compared cases per judge between Chittenden and the other probate courts, dividing the probate caseload among the seventeen probate judges as if they were full-time. The Commission was well aware that all of the probate judges, except in Chittenden County, are part-time,(fn4) but failed to apply this information to the calculation. Based on compensation, the probate judges consist of the equivalent of seven full-time equivalent (FTE) judicial positions.(fn5) Based on weighted caseload results, the probate judges consist of 6.35 FTE positions.(fn6) The use of either of the 7.0 or 6.35 FTE figures would have resulted in a significantly more accurate representation.

Non-Related Savings Included

The Final Report estimates $686,208 in judicial compensation savings and $440,377 in staff compensation savings, for a total of $1,126,525 [sic] from the probate recommendations.(fn7) In fact, these figures include the estimated effect of the consolidation of the southern probate districts to the county level, ordered by the General Assembly in the last session, that takes final effect in the next election cycle. The cost reduction effect of the southern consolidation was estimated by the office of the Court Administrator before passage at $177,849.91. It has subsequently been revised downward in the Final Report to $71,000.(fn8)

Selective Analysis

The arguments applied in the Commission's proposal for consolidation of the probate courts could have, and should have, also been applied to the remaining trial level courts. Yet, there is no indication any effort was made to do so. The Final Report notes that Chittenden probate court handles approximately 19% of the entire probate caseload. A comparable, and often larger, "Chittenden imbalance" applies to all of the other trial dockets. Chittenden accounts for 22% of the superior and family court caseloads, and 28% of the district court caseload. Yet there is no exploration in the Final Report of the possibility, for example, of a four-region district court, reducing the current county-wide structure.

Probate consolidation was also supported on the theory that Chittenden has the lowest cost per case in the probate docket, and savings could be achieved by duplicating the Chittenden model for the balance of the probate docket. There is no indication in the Final Report that any attempt was made to apply a similar "most efficient unit" analysis to each of the trial courts. Although Chittenden is not in each instance the most efficient unit, applying this analysis to the other courts, using the Commission's own available data,(fn9) suggests substantial potential savings are possible, certainly well worth further exploration.

Using Windham as a model, for example, suggests the superior court could function with 5.91 FTE judicial positions and 35.45 staff positions at a budget savings of $2,276,070.(fn10) Using Lamoille as a model, the family and district courts, operating with 19.06 FTE judicial positions and 128.63 FTE staff positions, could...

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