Commission on Judicial Operation Report
The Commission on Judicial Operation was created by an act of the Vermont Legislature in May 2008 and charged with conducting a thorough review of Vermont’s court system, with the goal of providing for more efficient and effective delivery of judicial services. In May 2009, the Commission was further directed to identify at least $1 million in savings in the FY 2010 budget.
The 15-member Commission met eight times and heard from more than 800 participants who responded to surveys or took part in focus groups. The Commission’s final Report to the Legislature was unanimously approved by Commission members on Nov. 6, 2009, and contained more than a dozen key recommendations to meet the Legislature’s directives.
After extensive debate and deliberation, the Vermont Legislature passed historic legislation in May, 2010 that restructured the judicial branch. This statutory reform brought the court structure within Vermont’s constitutional requirement for a unified judicial system, reduced the public tax burden by reducing the appropriation to the court system, and sought to achieve efficiencies while increasing access to justice for all Vermonters.
Because of the new law, the previous family, district, superior and probate courts ceased to exist, and the new Vermont Superior Court came into existence. There are now fourteen units of the new Vermont Superior Court, one corresponding to each county. The new Superior Court has five divisions: civil, criminal, environmental, family, and probate.
Q. We hear that the Vermont Court System must be restructured. Why?
Vermonters can no longer afford the inefficiencies of our outdated court system. Vermont currently operates 62 different courts at over 30 different sites. Some of these courts have small caseloads and are therefore much costlier to operate. The court system has responded to state budget shortfalls by furloughing employees and closing courts statewide for 2 ½ days each month. This is a short-term response to what will be a long-term budget problem, and results in limited access to justice. The proposed restructuring offers a more comprehensive approach that will not only save taxpayers money, but will also bring the courts up to date with new technologies that will make it easier for Vermonters to access the judicial system. The Judiciary branch simply won’t be able to meet its constitutional responsibilities to Vermonters without making these changes.
Q. How does Vermont’s government funding crisis affect Vermonters’ rights under the Constitution?
The Vermont Judiciary is being challenged to reduce the total budget for Judicial Branch Services by very large and unprecedented amounts. Current statutes block the Supreme Court from making necessary changes to this system to preserve Vermonters’ access to courts, while at the same time saving money. As a result, Vermont courts are now closed 2 ½ days per month, which is over 10% of the normal working hours of operation.
There are currently forty (40) positions being held vacant, which represents roughly 12% of currently-authorized staff, while some courts remain over-staffed based on relative need.
During the 2009 Legislative session, with revenues still falling off a cliff, the Legislature charged the Commission on Judicial Operation with identifying an additional $1 million in FY10 budget reductions over and above the most recent budget reductions suffered by the Judiciary. On October 2, 2009, all agencies and branches of state government were asked by the Executive Branch how they would manage if there were an 8% budget reduction across state government from FY2010 levels. It is unclear what the outcome of this budget exercise will be or what the impact will be on the Judicial Branch. What is clear is that the Supreme Court must have the flexibility it needs to responsibly manage the court system through difficult times.
Q. What is the Commission on Judicial Operation? Who created it, and why?
During the 2008 legislative session, the Legislature asked the Supreme Court to appoint a Commission on Judicial Operation composed of members of the three branches of government and the citizens of Vermont. The Legislature asked the Commission to make recommendations regarding a number of topics, such as consolidation of staff [including clerks of courts], regionalization of court administrative functions currently performed at the state and county levels, use of technology, flexibility in use of resources to respond to varying demands on the judiciary, reallocation of jurisdiction between courts, and any other ideas for the efficient and effective delivery of judicial services.
Q. Does the Commission have the authority to restructure the courts?
No. The Commission will be making recommendations to the Supreme Court and to the Legislative Branch of state government. The Supreme Court has the constitutional responsibility to administer the Judicial Branch and to interpret the law, including determining the constitutionality of statutes passed by the Legislature. The Legislature has the power to appropriate state funds and to pass legislation. The Commission also includes members of the Executive Branch, and the Executive Branch will receive a copy of the recommendations.
Q. What impact will the restructuring of the court system have on access to justice for all Vermonters?
The Commission’s recommendations for restructuring the court system identify the need to preserve and improve local access to justice for court users.
Local access means that, in each county, there should be a place where court users may obtain information, file papers, obtain appropriate referrals, and receive pro se assistance for all dockets—civil, criminal, family, and probate. The court staff should be knowledgeable about all dockets and/or be able to make appropriate referrals to people with knowledge. They must be capable and willing to provide information and to otherwise assist those who participate in court proceedings without lawyers, as other members of the public.
The Commission also recommends that, in addition to the basic information available at all courts and the possible establishment of an 800 number, the Court Administrator’s office should create a service center for self-represented litigants [“litigant service center”] in each major court center, and a network of services in more rural areas, possibly utilizing public libraries. The litigant service center is a key building block to supporting access to justice for self-represented litigants and has been used successfully in other state judicial systems.
In addition, the Judiciary has a unique opportunity to improve judicial services, greatly increase access to justice and implement efficiencies that will reduce costs over time, all through the introduction of new technologies.
Q. How will Restructuring Improve the Accountability of our Courts to the Constitution and the Law?
Although the Constitution unifies the court system under the Supreme Court, the statutes preserve a hybrid state/county system that creates inefficiencies, forces redundancies in procedure and personnel, and prevents the Supreme Court from matching scarce resources to the most compelling needs. These statutes interfere with the Supreme Court’s ability to save money in cases where it makes common sense to do so in ways that will not interfere with Vermonters’ access to justice.
The Commission's proposals eliminate county administration of the Superior Court. The counties would retain control of county court facilities, although court administration and presiding judges would determine what judicial business would occur in the county facilities. The current state/county facility cost-sharing would continue. The county would not be required to take on any increased cost responsibilities caused by increased judicial activity in these facilities.
Q. Isn’t county-based court administration already accountable to taxpayers?
Neither voters nor town governments have the power to control county spending or taxes at the county level. Assistant judges establish county budgets and present them once per year. The assistant judges set their own county-based compensation. No vote or further approval is required. The costs are then added by the towns as a levy that accompanies the town's property taxes.
Q If the work group proposals to the Commission were to be implemented, what would be the savings for Vermont taxpayers?
| County | State | |
|---|---|---|
| Convert County paid employees that perform judicial functions and are necessary to staff the new configured superior court | $1,896,405[1] | -$1,896,405 |
| Reduce middle management positions | 0 | $649,907 |
| Reallocate revenue from Small Claims Filing Fees | ($700,000) | $700,000 |
| Reduce services in Grand Isle and Essex counties | 0 | $353,588 |
| Consolidate Probate Court | $1,126,525 | |
| Assistant Judge: Net Savings | $288,050 | |
| TOTAL SAVINGS | $1,196,405 | $1,221,665 |
[1] The total cost of all employees in the superior courts paid for by the county is $2,333,000. Some of those employees perform non-court related county functions such as passports. Some represent middle managers whose positions would be eliminated by the reduction in middle management resulting from consolidation of the four trial courts and reduction in services in Grand Isle and Essex. When these personnel costs are deducted from $2,333,000, the balance is $1,896,405.
Q. What recommendations were made by the National Center for State Courts based on the Weighted Caseload Study that it conducted for the Vermont Judiciary?
- Reduce the number of managers and deputies in the trial courts
- Reduce the number of judges and court staff in the probate courts
- Identify the more efficient trial courts
- Investigate what makes those courts more efficient
- Analyze the extent to which the special characteristics of the more efficient courts can be generalized to other courts
- Estimate the extent and timing of possible staff savings from technology projects
- Plan for how the qualifications, skill sets, and core job functions of administrative staff will change as new technology is systematically implemented
Through the restructuring proposed by the Commission and the National Center for State Courts, in conjunction with the introduction of the electronic case file and electronic filing, dramatic increases in efficiency and reductions in cost can be achieved.
Particular activities can be done anywhere within the state and do not have to be duplicated in all courts. For example, by establishing what is essentially a virtual clerk’s office, Judiciary employees located throughout the state can work on court scheduling in any court or in any docket, depending on what makes the most sense.
These efficiency gains are very substantial and will result in a significant reduction of personnel costs for routine administrative functions.
Q. What were the key proposals developed by the various work groups?
Q. Will the courts in Grand Isle County and Essex County be closed?
The proposals recommend reducing court staff and operations in those two counties as a result of the relatively few cases filed there. Access to judicial services would be maintained in the two counties by having a single court staff person available in each of the current courthouses to accept filings and provide information, with additional services to be available in neighboring county courthouses serving a larger part of the population.
Judges, along with necessary support staff, could still travel to these county courthouses when justified or made necessary by a particular case.
Q. Will access to Probate services be changed from the point of view of the users of the current Probate Courts?
No, except that there will be 14 court sites as opposed to 17 court sites to obtain information or to file documents. Specialized probate services will be available at each Superior Court in the State, and the Probate Judges will travel to courthouses for judicial proceedings. In addition, with the advent of technology, users will be able to access probate services online, as well.
Q. What recommendations have been made specifically related to Probate Courts?
Currently, there are 17 elected probate judges, all of whom are part time with the exception of the probate judge in Chittenden County. [The Legislature has reduced the number to 14 as of 2011.] The work groups propose reducing the current number of probate judges to five full-time positions. The results of the weighted case load study conducted by NCSC indicate that probate could be handled by five to six full-time probate judges.
Q. Why do Commission work group proposals recommend that all Vermont judges be attorneys?
The Commission has adopted Principles for Administration of the Judiciary that call for all judges to be attorneys. This is based on the widely held belief, shared by those who participated in focus groups and surveys, that Vermonters deserve judicial decisions to be made by persons who are legally educated to resolve their disputes in court. Small claims and traffic litigants may not have as much at stake as clients in larger superior court cases, those accused in criminal court, or aggrieved parents in family court, but these litigants still deserve their legal disputes to be decided by a judge trained as a lawyer. Small claims cases and traffic offenses are important to the people facing the consequences, and principles of equal justice dictate that their cases by judged by lawyers rather than lay people. Assistant judges are dedicated public servants, but are not trained as lawyers and should not be relied upon for legal analysis
Q. In these times of tight budgets, aren’t assistant judges an inexpensive alternative to legally trained judges?
Assistant judges choose when they will sit as side judges [next to the presiding judge] on cases or parts of cases; whether they will seek to qualify to sit alone on other kinds of cases; and, in the latter case, to what extent they will be available to sit on cases. [The Judiciary’s state budget pays them for days they sit on cases, which is in addition to their county-based compensation.] Two-thirds of the $411,000 paid to assistant judges last year was for cases in which the side judges sat with a presiding judge. Vermonters can no longer afford this two-tiered and inefficient justice system.
Additionally, the use of side judges to sit by themselves in small claims cases is more costly than using attorneys, who traditionally do not charge for the service. In small claims litigation, legally trained acting judges are paid $75 per day where assistant judges are compensated about $150 per day. Most of the time the attorneys assigned as acting judges do not bill the state for their services. In 2008, the Judiciary spent about $78,000 for assistant judges in these cases.
In Judicial Bureau litigation (primarily traffic tickets), assistant judges are less expensive than legally trained hearing officers. The recommendation of the work groups is that litigants deserve legally trained judicial officers since driving and hunting privileges are at stake. In 2008, the Judiciary spent about $56,000 for assistant judges in these cases.
- Implementation of Technology
- Consolidation of the Trial Courts and Management Staff
- Full Time Probate Judges
- Consolidation of Court Operations in Grand Isle and Essex Counties
- Require all judges and other judicial officers to be attorneys
- Venue Statutes to be Replaced with More Flexible Venue Rules