[B]udget cuts over the past year have led to more vacancies in the state court system. The chief court administrator says there will be five vacant judge positions in the Superior Court by fall.
The Shumlin administration, meanwhile, has asked the Judicial branch to find more longterm savings.
Patricia Gabel, the court administrator, says four superior judgeships are open now and a fifth will be vacant in September. Each position would cost $188,000 to fill, Gabel says. That still leaves 30 judges on the state’s Superior and Environmental Court benches.
The vacancies on the bench have created backlogs that make judgeships are less attractive to potential appointees, and members of the bar are weighing the constitutionality of court delays.
Currently, there are vacancies from the retirements of David Suntag, of Windham County, Linda Levitt, of Addison County, and Amy Davenport. Harold Eaton, of Windsor County, was promoted to the Supreme Court last fall. Shelley Gartner, a magistrate in Rutland County, retires March 31, and John Wesley, of Windham County, is set to retire Sept. 1.
Read more about the judiciary cuts here.
Bob Paolini, executive director of the Vermont Bar Association, said the vacancies are “rare, but it’s not unprecedented.”
“Our concern about having that many vacancies is just Vermonters’ access to justice,” Paolini said.
Chris Maley, chair of the Vermont Association for Justice’s legislative committee, said delays in trials caused by vacancies raise constitutional questions at the state and federal levels.
Timely access to justice is one of the underpinnings of the due process clause of the U.S. Constitution. The Vermont Constitution also requires the courts to function “without unnecessary delay.”
In a Feb. 27 letter, Gov. Peter Shumlin directed the state’s Judicial Nominating Board to convene promptly to address the current vacancies. Shumlin has appointed five new judges since he took office in 2011, including one in January.
The state’s Judicial Nominating Board, which recruits and screens potential judges, met last week. Vice-Chair Rep. Bill Lippert, D-Hinesburg, said Shumlin had the opportunity to appoint two judges in January, and the board was disappointed he didn’t take it. Lippert is the former chair of the House Judiciary Committee.
“What concerns me more is the Judiciary turns to people who don’t go through the judicial nominating process,” Lippert said. Sometimes the Judiciary will appoint a lawyer to hear a single case if there’s an overloaded, he said. “There’s a constitutional right to due process, and you have the right to see a judge.”
Fiscal issues
Gov. Peter Shumlin’s fiscal year 2016 budget increases the Judiciary branch budget by $1.8 million, which represents a 5 percent hike over last year’s budget. But Shumlin has asked the courts to absorb a $600,000 cut to personnel as part of the $10.8 million in reductions the governor has sought through a renegotiation of the state employees contract. The governor has also asked for $500,000 in unspecified, permanent reductions to Judiciary branch spending. Shumlin officials have said they want the judiciary to modernize and reorganize the courts to achieve those savings.
Filling all of the five major judgeships for one year would cost $952,000, according to Gabel — and the state would need to hire between four and five support people for each judge.
Sen. Dick Sears, D-Bennington, told Gabel in a hearing Wednesday in the Appropriations Committee that the court system should be ready to fill the vacancies in southern Vermont if it wants committee members to fight for the Judiciary budget.
“We just approved today a judge from Burlington,” Sears said. “What I’m saying is, ‘Why should I fight for your budget, when you’re still going to short-change me no matter what I do?’ … We’re losing our court manager in Bennington. We’re losing a judge in Windham County.”
Sears said the vacancies are disproportionately affecting the state’s southern four counties.
“What I want is some assurance from the court that if we do our best to keep their budget that they’ll fill these vacancies,” Sears said.
Sen. Jane Kitchel, D-Caledonia, chair of Senate Appropriations, said Wednesday that the committee decided against raising court fees by 20 percent to pay for the $600,000 in Pay Act cuts.
The committee will now look at modest fee increases and cutting security costs. “Many of these courthouses are rural,” Kitchel said. “The volume of the public coming in is small.”
Either way, she said, the committee wants to work with Gabel to help ensure Vermonters get “timely justice.”
Backlog of cases
Allen Gilbert, executive director of the ACLU of Vermont, said Vermonters overutilize the court system.
The National Center for State Courts estimates the state had 151,851 cases in 2012, including traffic cases. New Hampshire, which has nearly double the population of Vermont, had 159,197 cases that year.
“Vermonters just use their courts a heck of a lot, so when you reduce the number of judges by the amount you have now, it puts a strain on everybody,” Gilbert said. “Who knows how bad it would have to get for someone to actually win a case under Article 4?”
A constitutional case against the state would most likely go to a civil trial court, where the Vermont Association for Justice says a three-hour trial has a four-month wait, and a two-day trial has a minimum 18-month wait. (In federal courts, U.S. Supreme Court Chief Justice John Roberts has decried court delays caused by budget cuts.)
Lippert estimated it would be June before the nominating board submits a list of candidates for the governor. Paolini, of the Vermont Bar Association, said in the worst-case scenario the seats would not be filled until a year from now.
Lippert said members of the board would like to see Shumlin fill four of the open seats this year.
Former Gov. Jim Douglas had a similar vacancy problem during his tenure. He appointed three new judges during his last month in office.
