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Judiciary Rejects Rollout Delay Recommendation

The Judiciary did not follow the Legislative Committee on Judicial Rules August 28, 2020 recommendation to delay the e-filing rollout to the Bennington, Rutland, Addison and Chittenden Units and the Environmental Division on October 19. HERE’s a copy of the letter from Chief Justice Reiber to the Committee, and HERE’s a copy of CAO Gabel’s letter in response to the Addendum that accompanied the recommendation. The Court Users’ Group that met with the Judiciary’s consultant on September 28 described how many of the issues referenced in the Addendum remain as issues. They also described new issues that have arisen in the meantime. Click HERE for a summary of the meeting.

Legislative Committee Urges Delay of E-File Rollout

On Friday, August 28 the Legislative Committee on Judicial Rules sent the attached LETTER and ADDENDUM to Chief Justice Reiber and to Court Administrator Patricia Gabel, urging a delay of the rollout of the Odyssey e-filing system to the Bennington, Rutland , Addison and Chittenden Units and to the Environmental Division until the e-filing issues present in the Windham, Windsor and Orange Units are resolved, and until training for the rollout is improved. See below for more details and follow up information to the “H.961 Includes VBA Filing Recommendations” Bar News story from early July.

As noted in the Bar News story copied below, the VBA set up two study groups following passage of H.961 on June 30. Click HERE for a description of the “Odyssey Court Users Study Group” and click HERE for a description of the “Odyssey Alternative E-Filing Fee Study Group” members and Charge and Designation. Each group has been requesting a first meeting with the Judiciary since early July. Immediately following the release of the letter from the Legislative Committee on Judicial Rules on August 28, a request was made for the two groups to provide potential meeting dates in September. Those dates are being organized this week in the hopes that the initial meetings will be set up in early to mid-September.

Bar News Story, July 8, 2020:

H.961 includes three provisions related to the new Odyssey e-filing system, including: “The Judiciary shall meet with representatives of the Vermont Bar Association and other court users to listen to and respond to court users’ experience with the Odyssey File and Serve system and to examine alternatives to the current e-filing charges. The Judiciary shall report its efforts and recommendations for improving the rollout of the program and for improving court users’ experience with the system, including costs, to the Joint Fiscal Committee and Joint Legislative Justice Oversight Committee not later than October 30, 2020.” The other provisions provide that CARES monies will be used to cover e-filing fees through December 30, 2020 and that the “User Agreement” that e-filers must sign to utilize the Odyssey File and Serve system will be brought into compliance with 9 V.S.A. chapter 152, which prohibits unconscionable terms in contracts.

With respect to the first provision, the VBA has set up two separate groups to meet with the Judiciary, one to present court users’ experience with the Odyssey File and Serve system and the other to examine alternatives to the current e-filing charges. If you would like the court users’ group and/or the alternative e-filing fee group to have the benefit of your insights or recommendations as they meet with the Judiciary per H.961, please email info@vtbar.org with “E-filing” in the subject line. We will be sure to continue to represent your interests on this topic.

With respect to the e-filing fees provision, a goal of examining alternatives to those charges is to have alternative e-filing charges in effect on December 31, 2020.

As stated in the Executive Summary of the E-Filing Fees Study Committee Report, “[t]he Committee recognizes the many benefits of an electronic filing system in the courts. It appreciates the Legislature’s funding of the system and the Judiciary’s work to implement it.” We look forward to working together with the Judiciary to ensure the success of the new system. We will also provide updates on the meetings with the Judiciary on the VBA website. Below is the original Bar News story about the E-Filing Fees Study Committee Report.

On Friday, May 15, the VBA Board voted to approve the eFiling Fees Study Report and Recommendations, linked HERE. See below for an Executive Summary of the Report, links to the Senate Judiciary video testimony and for more information. Many thanks to the eFiling Fees Study Committee and other volunteers for their generosity of time and effort in compiling the Report so expeditiously. Copies of the Report have been provided to the Supreme Court, the Court Administrator’s Office and Senate Judiciary, which has taken an active interest in the topic. We will keep you posted on further developments as they happen.

EXECUTIVE SUMMARY: E-FILING FEES STUDY COMMITTTEE REPORT AND RECOMMENDATIONS

The VBA eFiling Fees Study Committee was tasked with making recommendations to the VBA Board regarding the recent imposition of efiling fees and charges in the Odyssey File and Serve efiling system. The VBA began receiving complaints about the amount and frequency of the fees as soon as the system went into effect on April 20, 2020 in the Windham, Windsor and Orange Units. The Committee’s review of the efiling fee aspects of the system revealed significant issues of concern. The Committee recommends that the efiling fee charges in their present form be eliminated and that other funding sources, potentially including CARES funds, be secured. It also recommends that the CAO immediately address the issues of concern and that the Odyssey File and Serve system not be expanded to other counties until those concerns are addressed.

Primary Issues of Concern

The Committee’s work revealed the following primary issues of concern:

1. The imposition of the new efiling fees and charges represents a radical departure from fees historically charged in the Vermont court system.

2. The Judiciary had other options when it selected per-use efiling fees and charges and did not involve the Legislature or the Bar in the decision-making process.

3. The Judiciary lacked the authority to impose such fees without legislative oversight.

4. The Judiciary did not provide the Bar clear or reasonable notice regarding the amount and frequency of the efiling fees and charges.

5. Adverse ramifications of the per-use efiling fees and charges include serious access to justice concerns, Constitutional and ethical implications, an impossibility of projecting court costs and the disparate treatment of represented parties.

6. The per-use efiling fees and charges will discourage rather than encourage self-represented litigants to use the courts’ new efiling system.

Recommendations

The Committee recognizes the many benefits of an electronic filing system in the courts. It appreciates the Legislature’s funding of the system and the Judiciary’s work to implement it. The present efiling fees and charges aspect of the system needs correction in order for the areas of serious concern to be addressed. The Committee’s specific recommendations in the immediate term are;

1. That the Office of the Court Administrator, if feasible, immediately halt the imposition of e-filing fee charges in the Odyssey File and Serve system, investigate the use of new CARES monies to pay for the fees in the meantime until funding alternatives are secured, and postpone expansion of the system to other counties until the issues described above are addressed.

 2. That the Office of the Court Administrator immediately address the issues described above and engage with the Bar and other court users to determine the best e-filing fees option for Vermont, in order to re-negotiate the terms of the Tyler contract regarding e-filing fee charges. The Legislature is to be kept informed of progress made.

 3. That the Vermont Bar Association support any legislative effort that will support these recommendations.

In order to prevent a re-occurrence of the above issues going forward, the Committee also made several recommendations regarding future actions, including when the Tyler Technologies contract expires in 2022. The recommendations include notice and an opportunity to be heard in the initial decision-making process; the solicitation and consideration of input from all categories of court users throughout the decision-making process; and improved notice and training throughout the state once collaborative decision-making has occurred and decisions about modifications to court systems have been made.

Testimony:

Here is a LINK to the Senate Judiciary April 29 hearing, where the efiling fees testimony starts at the 1:36 mark. Here is a LINK to the Senate Judiciary May 13 hearing, where the efiling fees testimony starts at the 1:14:18 mark.

eFiling Fees Committee info: 

The VBA began receiving comments and concerns about the eFiling fee aspects of the new Odyssey “File and Serve” system shortly after it began operations on Monday, April 20 in Windham, Windsor and Orange Counties. On Thursday, April 23, VBA Board President Beth Novotny and VBA Executive Director Teri Corsones raised those concerns during a weekly phone conference with Judiciary and CAO leadership. On Friday, April 24, the VBA Board held a special meeting to review the concerns and voted to create an Ad Hoc eFiling Fees Study Committee. The Committee’s Charge and Designation is to immediately review the eFiling fee aspect of the Odyssey system in light of the concerns raised regarding substantive law, ethical implications and training materials, and to make a recommendation to the VBA Board with respect to any position to be taken by the VBA regarding the eFiling fee aspect of the new eFiling system. The VBA website will include ongoing information about the Committee as it conducts its work. Please direct any comments or concerns about the eFiling fees to info@vtbar.org, with eFiling Fees in the subject line, and your email will be directed to the Committee. The Committee is in receipt of any emails sent to the VBA to date.