Probate court sized up for big changes

MIDDLEBURY — Eleanor “Misse” Smith left a local law practice three years ago to successfully run for the bench in Addison County Probate Court.
Smith served notice on Tuesday that her tenure as a judge may last for just one, four-year term. It’s not that she doesn’t love her job — she finds it very rewarding. It’s just that her job — and indeed, the way Vermont courts do their business — may change dramatically based on recommendations a judicial study panel has passed on to the 2010 Legislature.
“Personally, if this happens, I am done as a judge,” Smith said of the Vermont Commission on Judicial Operation’s (VCJO) report, which includes a recommendation that the Addison, Rutland and Bennington county probate courts be consolidated into a single, tri-county district presided over by one elected judge who would commute to courthouses within that region.
“I would have no interest in this job; I would go back to private practice,” she said.
The proposed changes to probate court operations are just one of the recommendations set forth in the VCJO report, released earlier this month. It was in May of 2008 that the Legislature asked the Vermont Supreme Court to form the panel to consider, among other things, the use of technology and consolidation of manpower and court operations in an effort to save more than $1 million annually in judicial system costs. Vermont courts have already been asked to absorb furlough days and enact other cost-cutting measures this past year in wake of declining state revenues.
The panel, composed of citizens and members of the three branches of government, discussed potential cost-saving measures while receiving input through 44 focus groups held throughout the state.
It was on Nov. 6 that the VCJO released its final report, which among other things recommends:
• Creation of a single superior court with four divisions: civil, family, criminal and probate. The court would be administered by the Supreme Court on a county basis with staff support directed by a single manager appointed by the Vermont Court Administrator and a presiding judge designated by the Administrative Judge for Trial Courts.
• Eliminating the judicial functions of assistant judges. Assistant judges would continue to be responsible for the county functions, such as preparing the budget and overseeing buildings, but they would no longer be paid by the state to sit with the presiding judge on certain civil, non-jury cases and on divorce, parentage and relief from abuse cases in the family court’s domestic docket.
The Vermont Association of County Judges has already issued a letter opposing the VCJO’s recommendation on side judges, of which there are 28 in the state (including two in Addison County). Association president James Colvin noted that there were no side judges represented on the VCJO.
“It is reasonable and legitimate to conclude from the exclusion of the state’s elected judges from this process that eliminating these judges was a foregone conclusion,” Colvin wrote in his Oct. 15 letter to the commission.
Smith noted there were also no probate court judges on the commission.
• Integrating probate court into the trial court system by making probate court a division of the newly formed superior court. There would also be a requirement that the probate judge be a lawyer. There would be a total of five probate court judges statewide.
Smith is concerned that the recommendations, if adopted by the Legislature, would affect that quality of probate court service — and access to that service — that a local judge can provide.
As an example, Smith noted probate court is at times asked to rule on emergency guardianship cases. A rotating judge in a larger district would be hard-pressed to tend to such cases promptly, according to Smith.
“What happens if there is no judge here, and how do you find the judge if he or she is on the road or not around?” Smith said. “To me, it’s a fundamental access to justice issue.”
Local probate court judges, Smith added, know the lay of the land in their counties. Such knowledge will not be possible for judges who must deal with a three-county expanse, she argued.
“I know lots of these people and their families and what’s going on,” Smith said. “One of the current complaints about the judiciary is that judges are rotating all the time.”
Rotating between three courthouses poses a potential communication problem, according to Smith.
“The court commission’s recommendations pre-suppose that the technology is already in place. But it’s not,” Smith said. “Every single probate court is equipped differently; we are not on the same computer system. The logistics about how one person is supposed to handle three counties with three different setups is staggering.
“The proposed cost-savings are illusory,” she added.
Smith estimates she works 80 percent (of a full-time position) at a judgeship that is deemed a 48-percent job.
Probate court is handling a caseload that includes around 165 adult guardianships and 122 estates. Some of the guardianship cases can stay open for decades, Smith said. And the estate cases can also become quite complex — such as the recent Shard Villa case that ultimately settled following several court hearings.
The court also processes adoptions — 17 this year so far. These are some of the more pleasurable cases that Smith tries to give a personal touch; she has a special “wand” that she uses to playfully tap the adoptee when the legal process is finalized.
“I take the time necessary to do the job,” Smith said of her duties.
As it stands, probate court accounts for 8 percent of the state’s judiciary budget, yet the VCJO is proposing to derive the vast majority (more than $1 million) of its of its overall recommended savings from that sector, according to Smith.
She’s been sending e-mails to legislators and other state officials urging them not to endorse the VCJO’s recommendations on probate court.
“This proposal would essentially dismantle the probate court system,” Smith said.
Rep. Willem Jewett, D-Ripton, is a senior member of the House Judiciary Committee, which may be the first group of lawmakers to receive and debate the VCJO’s report. Jewett vowed to look at the recommendations carefully — and their implications — before endorsing far-reaching changes to the judiciary’s structure and operations.
“I hear Judge Smith loud and clear,” Jewett said, adding that probate court’s mission and structure is more conducive to quick results and customer service than some of the other courts that take longer and exact more legal expenses.
But Jewett believes that the VCJO’s work has at least triggered a much-needed dialogue.
“The good thing about a (financial) crisis like this is it forces you to take on challenges you didn’t have to take up when there was a bunch of money (in the state coffers),” Jewett said.
Still, lawmakers cannot just look at the VCJO’s report through a financial prism, Jewett stressed.
“This isn’t just about dollars and cents,” Jewett said. “We have to improve access to justice.”
Gov. James Douglas just received the VCJO’s report and its individual recommendations. During an interview on Tuesday with the Addison Independent, Douglas said he is pleased at how the commission tackled the job and that it is advancing, for discussion, some substantial budget cuts during these tough times.
“This is a time when we are preparing a budget for next year that is very tight: I have asked all of my department heads to come in with requests that are 8 percent below the current year,” Douglas said. “The fiscal year 2012 budget looks even worse. We have to find efficiencies throughout state government.
“I think the general direction (the VCJO) is recommending makes sense: I know there are some controversial ideas … I think they need to be explored,” Douglas said.

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