Vermont Bar Journal, Vol. 40, No. 2 Spring 2015, Vol. 41, No. 1 | Page 6

President’s Column

of easy and ready electronic access to the
court system.9 The question is whether Vermont can do the same and whether we can
work together to make sure that this upgrade begins.
Growing Needs and Obligations

Part of the challenge facing the judiciary
is the two-fold problem of increasing caseloads. Every year the legislature drafts new
laws and legal obligations that ultimately
require adjudication. At the same time, existing dockets, such as the Children in Need
of Supervision (CHINS) and the Termination
of Parental Rights (TPR) cases have exploded—rising 200% in some counties. With
its existing funding and staffing, the judiciary simply cannot keep up with the twofold rise in demand. This is also to say nothing of the increasingly complex civil matters and business-to-business and regulatory litigation that often bears the brunt of
the shortfalls.
We need to make sure that as new
laws and new demands arise on the judiciary’s resources that the funding comes
with it. Right now there is no formal process for the judiciary to report or express
to the legislature how increasing demands
in its caseload are affecting its resources.
There are no formal requirements for the
legislature to consider the impact on the
court system when it promulgates new
laws. In other words, imagine if the legislature passed a law ordering the creation
of a state highway system without checking with the agency of transportation if
it had the money or resources to build it.
That is what happens every time the legislature passes a bill that adds a new criminal
statute or a new source of liability. Just as
the legislature created the Joint Fiscal Office in 1971 to provide financial analyses on
the economic impact of legislation,10 there
needs to be a Joint Judicial Office where
the impact on courts and adjudication are
analyzed and considered. Whether such an
office comes from the judiciary, the legislature, or from the VBA, it should feature as
a formal part of how laws are created and
judicial budgets reviewed.
New Problems, New Partners

One of the most successful judicial programs launched in the past ten has been the
drug court docket, which has proven very
successful in answering Vermont’s widespread addiction problem. The drug court’s
success has been tempered by the fact that
its resource-intensive nature has slowed its
expansion and limited its applicability. As it
is configured, a drug court docket requires
consistent and constant hearings before a
judge and a treatment team comprised of
counselors, probation officers, therapists,
6

and doctors. Drug court is all about regular
reports to the judge, immediate penalties
for backsliding, and positive reinforcement
from judicial authority when goals are met.
Drug court also poses challenges to the
nature of the judiciary. Unlike most criminal
court cases where a defendant is arraigned,
allowed discovery, and then, short of a plea
deal, tried to either conviction or acquittal,
drug court creates an ongoing monitoring
process. In drug court, the judge is less of
a fact-finder and legal decision maker and
more of a monitor and manager. Court appearances focus on updates to the defendant’s recovery and opportunities for rewards or consequences. It is a different version of what a judge should do.
Expanding drug court or applying its
qualities to other dockets is both a challenge and an opportunity. It suggests that
the future of at least a portion of the judiciary lies in making new partnerships, training judges in the science of addiction behavior, and teaming the court up with social
services. In this way, the court becomes the
keystone of an arch composed of various
governmental and private/non-profit services available to individuals who can use
the system to overcome a biological and
psychological addiction. The shift cannot
be understated. The more the court becomes involved in such projects, the more
it changes its role away from adjudication.
By no means is this a bad idea, but it does
represent a change in the way the judiciary
works and its funding needs. As its champions will note, such costs are worth the results and systemic savings over time, but at
the end of the day if we compare courts to
courts, it simply costs more to run an effective drug court.
One take-away from this is that there is
a substantial benefit to taking a particular type of case and developing a specialized docket where judges gain specialized
knowledge and skills and where non-judiciary partners can integrate themselves
into the process. Isn’t this where the legislature is headed with its charge for greater oversight in CHINs cases? Isn’t this already occurring in the environmental division, where applicants and opponents are
joined to state and local regulators in an increasingly uniform permitting process? At
this point, shouldn’t we be starting a conversation about what other areas would
benefit from such process? Consumer debt
sticks out as an obvious choice and could
work as a lower-threshold state bankruptcy
court to address debtors and creditors in a
fashion that focused resources on identifying and confirming the debt and developing reasonable payment plans.

lative session, it is that we as a profession
need to communicate more with our legislators, judicial partners, and friends in the
administration. We need to take the conversations that we have been having as
a bar and as individual practitioners and
open it up to the larger public because to
this point the message has not been getting through to those who need to hear
it most. As the largest consumer of judicial services, we are in a unique position
to speak about the issues facing the judiciary from the position that matters most:
our clients’. I encourage all of you to continue the conversations that you have started with your representatives and senators
and expand the con ٕ