The Law Firm of Bucknam Black Davis PC

Is It Over Yet? — Thoughts on Vermont’s Judicial Reform Act (H.470) by Michael Roosevelt, Law Clerk


Vermont’s Rules of Civil Procedure, Rule 1, calls for court rules to “be construed and administered to secure the just, speedy, and inexpensive determination of every action.”

This first rule of Vermont’s courts appears to have been forgotten or ignored and the result is H.470 (An act relating to restructuring of the judiciary) which is unlikely to achieve the objectives of Rule 1. This is partially due to the fact that the stated objective of the judicial reform process was to save “one million dollars” as though underlying judicial ills could be cured by treating its economic symptoms without also treating the problems of justice and speed. A savings of a million dollars is chicken feed when compared with other areas of the state budget, and any million dollar savings are going to be achieved by slowing down the court system and thus increasing the costs that are borne by those Vermonters who have the misfortune to come in contact with this system either as plaintiffs or defendants.

I attended the public hearing held in April by the Senate Judiciary Committee and saw little reason for optimism regarding the immediate future of the judiciary system. Those of us in the room were treated to a history lesson regarding how Grand Isle County came to be (it split from Franklin County in the late 1700s so that it could have its own court); we heard about the “efficiencies” that hypothetically might be achieved by court consolidation; we heard how persons outside the state think that our system of elected judges is “quaint”, etc. However – the majority of those giving testimony supported the existing system over the not clearly delineated changes set forth in the bill at that time.

Historic precedent is revered in Vermont and therefore the idea of eliminating judicial functions of the “quaint” elected assistant judges struck me as singularly “un-Vermont” as well as remarkably anti-democratic. The positions of probate judge and assistant judge were written into the Vermont Constitution (1777) for a reason – and that reason is as valid today as it was then: to allow the public a say in how Vermont courts (and justice) are administered.

So what if our system isn’t the same as other states’? There’s a lot about Vermont that is different from other states and that’s one reason why many of us live here. Chalk it up to diversity.

The idea that the changes proposed would improve “efficiency” answered the wrong question. That question was, “How can we make Vermont justice cheaper [for the state]?” but generally left out, “How can we make Vermont justice better and swifter?”

When dealing with the law, there is little efficiency. The most “efficient” approach would be to set up tribunals – as the Taliban do – and dispense summary justice. That would be quick and cheap, but it also wouldn’t necessarily be just. When parties are unable to resolve their differences among themselves, it usually is the result of a myriad of problems few of which are easily resolved. You can’t apply a “business model” to the courts because interpreting the law, and dispensing justice, is an inherently human (and therefore inefficient) process.

Comments were made at the Senate hearings regarding electronic court filings. This would involve major investments in electronic equipment on the part of attorneys whose offices may not have the equipment or know how to use it. Many Vermont attorneys are sole practitioners who can ill afford such expense on the one hand and on the other hand the cost of setting up and running a court system that could accommodate electronic filing would also be significant and very time-consuming. In addition, the proliferation of electronic documents, including discovery documents, could clog the now down-sized court system unless changes are made within the statutes which control how cases are prepared and presented to the court. Gone are the days when each court filing is typed out by hand. Now it is a matter of minutes to crank out pleadings and wallpaper the court manager with the stuff.

One can speculate regarding the motivation behind the Committee for Judicial Operations that prepared the initial judicial reform report and the process that it used to arrive at its conclusions. One thing remains clear: despite having paid lip-service to public input by using focus groups, the public is certainly unaware of what may befall it when court restructuring begins to be implemented in July.

The reason for that is that the whole process was backwards from the beginning. If one is going to make major changes in any sort of system, the first step is to define the ideal overall situation for that system. Having established the ideal – and using that as a measure with which to compare reform proposals – one can work toward solutions which more or less approximate that ideal. In effect – if there was an infinite amount of time, money and political will – what would the ideal Vermont Judicial system look like? What would be ideal for the litigants (a question which appears rarely to have been asked); what would be ideal for the courts; what would be ideal for the attorneys, etc.? During the April Senate hearing, the idea was put forth in testimony that the “stakeholders” should not play an integral part in the reform process. If this concept was taken to its absurd conclusion, why was anyone in Vermont consulted on this?

Now that it is over (for the time being), the bottom line regarding Vermont’s judicial reform is (a) the process was irreparably flawed from the outset, (b) the bill should have been scrapped and (c) assuming judicial reform was necessary in the first place, the whole process should now be closely monitored – including post-judgment evaluations by the actual users of the system (i.e. persons who have recently had cases before the courts), with the objective of making adjustments to the changed system so that eventually everyone wins. To its credit, the Senate Judiciary Committee was able to make last-minute changes to the House’s judicial reform bill, and forestalled many of the radical changes proposed in the initial House bill. But if Vermont history is any indicator, expect to see renewed efforts to further change Vermont’s judicial system (in the guise of “efficiency” and/or “economy”) to make it look like those of other states.

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