Law Enforcement Use of Force Bill

The following is my report that I delivered today in support of S.119, which passed on a 106 to 37 roll call vote.

Events across the nation have focused attention on police use of force. These events have focused our attention, as legislators, on the following question:  What is the legislature’s role in overseeing and guiding police use of force in Vermont?  Your House Judiciary Committee’s answer to this question is that our role is significant.  When it comes to use of force, we must ensure that law enforcement is accountable to the citizens of Vermont.

It has been a long time since the legislature has played any role in this area, let alone a significant one. With S.119, the legislature fulfills its responsibilities.

The State created law enforcement entities and gave them certain duties.  It gave them the duty to implement the adjudicative processes of criminal law – in other words, the duty to investigate crime, serve legal process, and make arrests and the like.  It also gave law enforcement the duty to maintain public order. 

The legislature has given explicit powers to State law enforcement.  In 24 VSA 293, the legislature provided that a sheriff is to execute lawful writs, warrants, and processes.  24 VSA 302 provides sheriffs with the power to execute searches pursuant to warrants.  24 VSA 299 provides that “a sheriff shall preserve the peace, and suppress, with force and strong hand, if necessary unlawful disorder.”  24 VSA 1931 allows municipalities to create police departments while 24 VSA 1935 provides that police officers shall have the same powers as sheriffs.  20 VSA 1914 provides that state police have the same powers with respect to criminal matters as sheriffs.

The Vermont legislature in the first instance sanctioned police authority, including the authority to use force. It is well within the legislature’s purview to limit that authority by setting standards for that use of force. Indeed, in its role in ensuring public safety, it is the legislature’s responsibility to regulate the powers granted to law enforcement, particularly the power to use force.

And it has done so in the past.  Well, it has kind of done so in the long ago past.  Subsection (3) of 13 VSA 2305 gave law enforcement broad authority to use deadly force.  That provision states, in part, that a law enforcement officer will be guiltless if he or she kills or wounds someone “to assist in serving legal process, in suppressing opposition against him, or her in the just and necessary discharge of his or her duty.” This provision was enacted in either 1779 or 1787 and amended in 1840.

This aged language, to say the least, provides lax guidelines for police use of lethal force.  It is in dire need of updating.  Given modern U.S. Supreme Court cases related to police use of excessive force, this provision is likely unconstitutional.

S.119 would provide a needed update of statutory standards for law enforcement use of force.

The State has imposed duties on law enforcement that put officers into situations where they may need to use some level of force to meet legitimate law enforcement objectives or to protect the officer or another person. Because the State is authorizing the use of force, it also should lay the ground rules for that use of force. Those ground rules, or standards, will clarify what Vermonters expect of law enforcement when it comes to use of force.  They will ensure that law enforcement officers are accountable when their use of force does not meet these expectations while allowing use of force when necessary.

S.119 would set forth standards for the use of force and the use of deadly force in statute. The Department of Public Safety and Executive Director of Racial Equity will then work out the details of implementing those standards in a uniform state-wide policy.

These statutory standards are modeled from legislation enacted in California in 2019, and also draw from law enforcement use of force policies in Seattle, Washington; Camden, New Jersey; Washington D.C; and Burlington and South Burlington, Vermont. The bill also draws from, and is consistent with, existing standards found in federal and state case law related to use of force.

Broadly, the standards provide that the use of force by law enforcement is lawful if it is “objectively reasonable, necessary, and proportional” and the use of deadly force is lawful if it is “objectively reasonable and necessary in defense of human life.” 

SECTION BY SECTION ANALYSIS

Sec. 1  – 20 V.S.A. § 2368

This section creates the standards for law enforcement use of force. 

Subsection (a) sets out definitions that apply throughout the statute.

Subsection (b) sets out the standard for the lawful use of force in policing.  It describes the general policy that force should be used judiciously and with respect for every person’s right to be free from excessive use of force.

Subdivision (b)(2) requires that any use of force by law enforcement to achieve any lawful law enforcement objective must be objectively reasonable, necessary, and proportional. 

As provided in subdivision (b)(4), the objective reasonableness standard must be evaluated from the perspective of a reasonable officer in the same situation, based on the totality of the circumstances. That subdivision also provides specifically that the analysis of objective reasonableness shall consider whether the officer failed to use feasible alternatives to force.

(b)(5) imposes a duty on law enforcement officers who know that a subject’s conduct is the result of a factor beyond the subject’s control, such as an impairment, disability, or language barrier, to use that information in deciding whether the use of force is appropriate.

(b)(6) affirms the right of a law enforcement officer to act in self-defense.

 Subsection (c) sets out the policy for use of deadly force by law enforcement, which is force that creates a substantial risk of causing death or serious bodily injury.

(c)(1) describes when the use of deadly force is appropriate.  It provides that a law enforcement officer is justified in using deadly force upon another person only when, based on the totality of the circumstances, such force is objectively reasonable and necessary to either:

  • defend against an imminent threat of death or serious bodily injury to the officer or to another person; or
  • to apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended.

(c)(2) provides that force is “necessary” when, in light of the particular circumstances, an objectively reasonable law enforcement officer would conclude there was no reasonable alternative that would prevent death or serious bodily injury to the officer or to another.

The remaining subdivisions under (c) provide that

  • law enforcement shall cease the use of deadly force as soon as the subject is under their control or no longer poses an imminent threat,
  • law enforcement must use reasonable efforts to identify themselves when feasible before using force,
  • use of deadly force is prohibited against a person based on the risk that person poses to themselves and no one else,
  • use of certain restraints, commonly referred to as chokeholds, are prohibited
  • a law enforcement officer is required to intervene if they observe another officer using a prohibited restraint.

Sec. 2.   13 V.S.A. § 2305

This section amends the justifiable homicide statute, the statute initially enacted in the late 1700s.  It modernizes the language in subdivision (1).  It makes the intent clearer in subdivision (2).  And it aligns subdivision (3) with the new standards for law enforcement use of force. 

As I mentioned before, currently subdivision (3) is likely unconstitutional, as it appears to provide protection for law enforcement that interferes with the constitutional protections against unreasonable search and seizure provided for in the 4th Amendment. The amended language in subdivision (3) provides that law enforcement are entitled to the defense of justifiable homicide if they kill or wound a person while using force that is in compliance with standards set forth in Sec. 1. 

This defense is available to a law enforcement officer who uses a prohibited restraint in violation of the criminal offense that was created in S.219, which passed before the legislature recessed in June and was signed into law by the Governor. So, even though a chokehold is prohibited as a restraining technique, it may still be used where deadly force is justified, namely where a law enforcement officer needs to use it to prevent death or serious bodily injury to the officer or another person.

Sec. 3. Repeals of sunsets

This section repeals two sunsets imposed by S.219: 1) the sunset on the new crime regarding law enforcement use of prohibited restraints and 2) the sunset on the justifiable homicide statute that is amended in Sec. 2.

Sec. 4.  DPS model policy

Section 4 directs the Department of Public Safety and the Executive Director of Racial Equity to report to the standing committees in February 2021 on the process and outcome of their work to develop a statewide model use of force policy for law enforcement.  That process was directed by the Governor’s Executive Order Number 03-20, issued on August 20, 2020.

Law enforcement witnesses testified that they would prefer, instead of setting forth standards in statute for the use of force, that we should rely on a model policy to ensure uniformity in police use of force across the State. 

This approach would shirk our oversight responsibility, our duty to create standards governing the use of force this body has authorized.

In addition, policies generally are not enforceable in court.  Statutory standards are. 

This fact is understood by law enforcement.  The Vermont Criminal Justice Training Council is the entity that trains all law enforcement officers in Vermont on the use of force.  In the Council’s training materials, it states that “a violation of a department policy can result in sanctions or punishments from your department,” but only if the policy mirrors the law can its violation result in criminal charges or lawsuits.

The possibility of criminal charges or lawsuits can help motivate compliance with standards for use of force and ensures accountability of law enforcement to Vermonters. 

Because of its enforceability in a court of law, an enacted statutory provision would have far more potential to shape police culture than internal police regulations would.

This is not to say that a uniform state-wide use of force policy is not vital. A policy would provide the necessary details for police conduct to comport with the statutory standards.

S.119 provides guidelines for the use of force and use of deadly force in statutory standards while leaving to the Governor’s process the development and adoption of a uniform State policy for implementing those standards.  To give time to the Department of Public Safety to develop that policy consistent with the statutory standards, the effective dates in Section 5 of the bill provide that the statutory standards take effect in January of next year. The remainder of the bill takes effect on passage.

That concludes my section by section overview, and now I will turn to a broader issue.  In the absence of this bill, the legal standards that apply to law enforcement use of force in Vermont are set forth by courts, primarily by the U.S. Supreme Court, the U.S. Court of Appeals for the Second Circuit, and the Vermont Supreme Court.

For the most part, the standards in S.119 are the same as those set forth by the courts.  The bill also includes important clarifications.

First, how should we expect law enforcement to deal with individuals whose conduct is the result of a medical condition, mental impairment or some other factor?  Courts suggest that law enforcement should take such impairments into consideration when determining what force, if any, should be used in a particular situation.  Subsection (b)(5) requires law enforcement to take this into consideration.

[Chamberlain v. City of White Plains, 960 F.3d 100 (2d Cir. 2020);Champion v. Outlook Nashville, Inc., 380 F.3d 893, 904 (6th Cir. 2004) (“The diminished capacity of an unarmed detainee must be taken into account when assessing the amount of force exerted”); Deorle v. Rutherford, 272 F.3d 1272, 1283 (9th Cir. 2001) (Where it is or should be apparent to the officers that the individual involved is emotionally disturbed, that is a factor that must be considered in determining . . . the reasonableness of the force employed.”)]

Second, subsection (c)(2) provides that deadly force is necessary when, given the totality of the circumstances, an objectively reasonable law enforcement officer in the same situation would conclude that there was no reasonable alternative to the use of deadly force. As the Vermont Attorney General testified, deadly force should be a last resort. The controlling case law is not entirely clear on this point. So, the language in subdivision (c)(2) makes it clear – under Vermont law, deadly force may be used only as a last resort.

[Cugini v. City of New York, 941 F.3d 604, 612 (2d Cir. 2019) (“Graham thus stands for the proposition that a government office may not intrude on a person’s Fourth Amendment rights by employing a degree of force beyond that which is warranted by the objective circumstances of an arrest.”); Rogoz v. City of Hartford, 796 F.3d 236, 248 (2d Cir. 2015) (the jury “could well find that Watson had used more force than was necessary.”); Vos v. City of Newport Beach, 892 F.3d 1024 (9th Cir. 208) (“the Graham factors are not exclusive.  Other relevant factors include the availability of less intrusive force. . .”); Glenn v. Washington County, 673 F.3d 864, 872 (9th Cir. 2011) (“[Whether listed in Graham,] other relevant factors include the availability of less intrusive alternatives to the force employed … .”); Chew v. Gates, 27 F.3d 1432, 1440 n.5 (9th Cir. 1994) (noting that “the availability of alternative methods of capturing or subduing a suspect may be a factor to consider” in determining whether a particular application of force was unreasonable; Estate of Heenan v. City of Madison, 111 F. Supp. 3d 929, 942 (W.D. Wis. 2015) (“The failure to use an alternative, non-deadly force is not dispositive, although whether such an alternative existed is a factual question that may weigh on a trier of facts’ ultimate determination of objective reasonableness.”); Becker v. City of Evansville, No. 3:12-cv-182-WGH-TWP, 2015 U.S. Dist. LEXIS 8414, at 37 (S.D. Ind. 2015) (“The availability of other means of apprehension presents a relevant consideration in the Graham analysis”). ]

In 2016, the Police Executive Research Forum, published the Guiding Principles on Use of Force.

In the words of the Chief of the Metropolitan Police Department of Washington, D.C., “The question is not, ‘Can you use deadly force?’ The question is, ‘Did you absolutely have to use deadly force?’ … And the decisions leading up to the moment when you fired a shot ultimately determine whether you had to or not.”  

Which leads me to the third critical clarification in S.119 of existing court-created standards for use of force.

The definition of “totality of the circumstances” in subsection (a)(6) includes the conduct and decisions of the law enforcement officer leading up to the use of force. It is not entirely clear where the Second Circuit is on whether conduct leading up to the use of force should be considered in determining whether that use of force was reasonable.  In a 1996 case, Salim v. Proulx, the court stated that the officer’s “actions leading up to the shooting are irrelevant to the objective reasonableness of his conduct at the moment he decided to employ deadly force.”  In a case decided at the end of May of this year, Chamberlain v. City of White Plains, the Second Circuit came to a different conclusion, finding that conduct leading up to a use of force should be part of “the balancing of factors bearing on whether the offer’s use of force was objectively reasonable under the circumstances.”

At least two other circuits, the First and Third, have clearly stated that such conduct should be considered in determining whether the use of force was objectively reasonable. Other circuits disagree.

[Abraham v. Raso, 183 F.3d 279 (3d Cir. 1999); St. Hilaire v. City of Laconia, 71 F.3d 20 (1st Cir. 1995)]

S.119 clears up this uncertainty in Vermont. Police officer conduct leading up to the use of force should be considered.

The standards in S.119 should not change how most of our law enforcement officers already act in situations involving use of force.  Police departments such as the one in South Burlington already have policies that largely comport with the standards in S.119.  In his testimony before the Judiciary Committee, the main trainer on use of force for the Vermont Criminal Justice Training Council stated that they already train police officers in the use of proportional force and in de-escalation techniques, for example. Still, it is important that we hold law enforcement officers accountable to these standards by having them in statute.

Before I list the witnesses that the Judiciary Committee heard from, I will give a bit more background regarding the process that we undertook to receive input on S.119.

While the Committee considered S.119 in June, it became clear that many people in communities affected by police use of force wanted to weigh in on that bill as well as on other police reform efforts. To address that, the Judiciary Committee took advantage of the time that the recess offered and, with the Government Operations Committee, hosted three public hearings on S.124 and S.119.  In coordinating those hearings, we worked with the Social Equity Caucus to ensure that we were reaching out to Black, Indigenous, and People of Color and disability rights communities to encourage their involvement.  The Social Equity Caucus also conducted an online survey that, among other topics, asked for input on S.119.  There were nearly 1500 responses to the survey.

When we returned from recess, to receive further input, House Judiciary invited 20 representatives of the BIPOC and disability rights communities to testify on the bill.  We received oral and written testimony from seven individuals representing these communities. The Committee also heard from representatives of the law enforcement community and modified aspects of the bill to try to address their concerns.

S.119 Witness List

Attorney and Founder of MadFreedom, a psychiatric survivor rights organization

Executive Director, VT Human Rights Commission

Executive Director of Racial Equity, Agency of Administration

Executive Director, National Alliance on Mental Illness (NAMI) of Vermont

Movement Politics Director, Rights and Democracy Vermont

Councilor, Burlington City Council

Retired Defender General and Director of the Human Rights Commission

Advocacy Director, ACLU of Vermont

Representative from Northfield

Legislative Counsel

Vermont Attorney General

Director, Civil Rights Unit, Office of the Attorney General

Assistant Attorney General, Vermont Attorney General’s Office

Commissioner, Department of Public Safety

Director of Administration, Vermont Criminal Justice Training Council

Chief of Police, Montpelier, and on behalf of the Vermont Police Association

Chief, South Burlington Police Department, and on behalf of Vermont Association of Chiefs of Police

Deputy State’s Attorney, Department of State’s Attorneys & Sheriffs

State’s Attorney for Washington County

The vote in our Committee was 8-3.

Judiciary Committee Update: Police Reform – Use of Force Standards

House Judiciary continued taking testimony on S.119, a bill to establish a statewide use of force standard for law enforcement. 

While the Committee considered S.119 in June, it became clear that many people in communities affected by police use of force wanted to weigh in on that bill as well as on other police reform efforts. To address that, we took advantage of the time that the recess offered and, with the Government Operations Committee, hosted three public hearings on S.124 and S.119.  In coordinating those hearings, we worked with the Social Equity Caucus to ensure that we were reaching out to BIPOC and disability rights communities to encourage their involvement.  The Social Equity Caucus also conducted an online survey that, among other topics, asked for input on S.119.  There were over 1500 responses to the survey.

Based in part on that input, House Judiciary started the post-recess session with a proposed strike-all amendment that provides further guidance for law enforcement on the justified use of force and use of deadly force. To receive further input, we invited representatives of the BIPOC and disability rights communities to testify on the bill.  Based on oral and written testimony from seven individuals representing these communities, we made further revisions to the bill, primarily to address concerns related to the use of force in situations where the subject of that force is physically or mentally impaired.

This past week, the Committee also heard from representatives of the law enforcement community. They were generally not supportive of placing use of force standards into statute. Instead, they would prefer to have such standards set forth in a uniform state-wide policy to be developed through the Vermont Criminal Justice Training Council.

We are now seeking compromises that either bring along law enforcement or at least speak to their concerns while maintaining the improvements that have been made to the bill based on BIPOC and disability rights communities’ input. We are seeking to set forth standards for the use of force and use of deadly force in statute while having the details of implementing those standards worked out in a uniform state-wide policy.

Suspended Drivers’ Licenses

On Friday, I reported out a part of a miscellaneous judiciary bill, S.234. The following is my report:

In a rural state like Vermont, access to transportation is critical for economic prosperity, public safety, and healthy communities.  Many Vermonters lack access to a vehicle or public transportation, but a less obvious barrier exists in the form of driver’s license suspensions.  Most driver’s license suspensions are due to either failure to pay underlying tickets or the failure to pay the reinstatement fee necessary to get the license back. Around 25,000 Vermonters have a suspended license because they have not paid their tickets or their reinstatement fee.  Often, their poverty keeps them from being able to pay.  Often, their inability to drive to work perpetuates that poverty.  In short, suspended licenses are often a result of poverty and a contributing factor to poverty in Vermont.

Over the past several years, the legislature has passed bills that reduce the number of individuals who have a suspended license solely because of failure to pay a fine or court fees.  Section 25 of S.234 continues that work.

Section 25 establishes a Reinstatement Fee Waiver Program.  It requires the Department of Motor Vehicles to reinstate drivers’ licenses without requiring a reinstatement fee under certain conditions.  Vermonters who have had their licenses suspended for non-criminal reasons can have their license reinstated if the suspension has lasted more than one year and if the person has satisfied all other reinstatement conditions and requirements. Reinstatement fees are also waived for people whose licenses were suspended for failure to pay the court fine prior to July 1, 2014, when such suspensions were indefinite. People whose licenses are under suspension for accumulating 10 or more points as of the program’s effective date are not eligible for the fee waiver. DMV must reinstate eligible licenses by April 30, 2021.

The version of the Program in the House bill makes a change to the Senate bill, which had waived the operator’s court fines and fees in addition to the DMV reinstatement fee. Under the House proposed amendment, individuals are still obligated to pay any fines or court fees they still owe. But they can drive under a valid license.

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Here is some additional information that I gathered that I did not include in my report to the virtual House Floor:

The following is a fairly comprehensive sampling of non-criminal reasons for suspension:

As for reinstatement conditions, this is from the DMV’s website:

Reinstatement requirements will vary depending on your offense. Contact us for your specific requirements. Common requirements may include:

·         Submit an SR-22 (proof of insurance)

·         Retake and pass the driving skills and knowledge tests

·         Satisfy any court requirements

·         Pay reinstatement fee(s)

·         Obtain medical clearance

·         Complete alcohol courses as ordered by the courts

Until July 1, 2014, all suspensions for failure to pay a penalty imposed by the Judicial Bureau were indefinite. Act 128 of 2013, Section 3, provided that motorists whose licenses were suspended for unpaid tickets would be eligible for reinstatement after 120 days. The reinstatement was not automatic (a reinstatement fee was required) and DMV did not apply this retroactively to suspensions already in existence on 7/1/14 when the Act took effect. The time limit means that the person can get their license reinstated by paying the reinstatement fee after 120 days even if they never pay the penalty itself. The 120-day limit was shortened to 30 days by Act 147 of 2016, Section 5.

2020 SBHS Graduation Ceremony

Here is the text of my welcoming comments at the South Burlington High School graduation ceremony.

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Good evening. On behalf of your elected school board representatives – Elizabeth Fitzgerald, Bridget Burkhardt, Alex McHenry, Brian Minier and myself – I welcome you to the South Burlington High School Class of 2020 graduation ceremony.

I am especially pleased to be here because I have known many of the graduating seniors since they were in kindergarten, way back in the 2007-2008 school year. That’s when my family moved to South Burlington. Like many others, we chose to move here so our kids, one of whom is graduating today, could benefit from South Burlington’s excellent public schools.

There is a promise that exists between a community and its public schools. In exchange for the community’s support, the public school teaches every child who passes through its doors – whatever their backgrounds or abilities, and whether the doors are physical or virtual.

In South Burlington, our teachers are guided by the outcomes the community expects from its public schools. The community expects our graduates to be academically proficient in a broad range of subject matters. We expect them to have developed personally, with self-awareness and interpersonal skills. We expect them to have developed a sense of citizenship, to be empowered and enthusiastic contributors to their communities. We expect them to be life-long learners, able to adapt to the changing needs of the economy and to succeed in the face of such changes. And we expect that our graduates “will successfully complete their education from the South Burlington School District ready for their next step,” whatever that may be. As part of their promise to the community, our public schools strive to help our students meet all of these expectations. And the amazing class of 2020 is evidence that they have succeeded.

Of course, there is another vital component of public education. Our public schools are where the community’s children meet and sit side by side in classrooms, on bleachers, in cafeterias, and in the last three months, on Zoom. They question, they debate, they navigate friendships. They learn from each other as surely as they learn from their teachers.

Before us today are the products of the promise between the community and the South Burlington Public Schools. Our resilient graduating seniors. With the help of parents, guardians, supportive friends and family, and our District’s fabulous teachers, staff and administrators, they are ready for their next steps. Ready to go on to college, to serve this country in the military, to start careers, to engage with the world in innumerable ways.
Graduating seniors, the class of 2020, on behalf of the South Burlington School Board, we are honored to send you on your way.

Education Funding

COVID-19 has created significant challenges for Vermont’s public education system. Although our teachers and administrators have been doing an exemplary job in ensuring continuity in student learning, remote education is not a substitute for that offered within our school buildings. Students returning to school, hopefully this Fall, will have lost ground and will lack certain skills and concepts that they were to learn this Spring. They will have greater need for support and will require additional instruction to close gaps created by the COVID-19 disruption. It would be inappropriate to cut back on school funding critical to educational support and programming.

Legislators recognize the need to, at a minimum, maintain the current level of educational services. But we also understand the financial stress faced by the community that pays for the State’s public education. That stress comes at a time when the State faces an education fund deficit this year and a projected shortfall next year due primarily to the significant reduction in the collection of consumption taxes such as the sales tax and room and meals taxes. It also comes at a time when 19 school districts, including South Burlington, have not passed a budget for next year.

The House Ways and Means Committee has been trying to determine how to address the revenue shortfall while avoiding a significant increase in property taxes. The Committee has been exploring various revenue options including federal relief funds provided to Vermont through the CARES Act. Unfortunately, determining how to use those federal funds to help pay for public education has been complicated due to the many restrictions on their use. The jury is still out on whether that resource will provide the needed relief.

The legislature has also sought to address the situation of the 19 districts that do not yet have a voter-approved budget. The House and Senate Education Committees are determining the spending levels that these districts would be authorized to incur if they are unable to obtain voter-approved budgets. What default budget is authorized if concerns over public health prevent a district from holding a budget vote before the new fiscal year? What can the districts spend if they do have a vote, but no budget is approved by the voters before the new fiscal year? The schools must continue to educate the community’s children, but with what budget?

Under the city’s charter, the South Burlington School District can borrow the equivalent of the previous year’s budget until it obtains a voter-approved budget. In South Burlington, which has seen an increase in enrollment – 90 additional students expected next year – a level-funded budget would result in the layoff of approximately 30 teachers and/or staff, larger class sizes, a reduction in advanced placement courses, a reduction in class offerings including some foreign languages and drivers education, less social and emotional support, and fewer co-curricular activities.

Other districts could face more dramatic cuts. Without a voter-approved budget, those districts, under State law, face spending levels restricted to 87% of their previous year’s budgets.

To address this situation, the Senate and House Education Committees have contemplated various options. Districts could be allowed to spend at the previous year’s budget level. Or they could spend at the previous year’s budget level but with a cost of living increase. Or they could spend at the previous year’s budget level plus the average budget increase across the State (a bit over 4%). Or school boards could adopt budgets without a vote, so long as those budgets were lower than previously warned or defeated budgets. It is not clear where these committees will end up, but this last idea has been particularly controversial and has little likelihood of finding support in the legislature.

In any event, school boards, including in South Burlington, are reluctant to proceed with budgets that have not received voter approval. Fortunately, soon after the Governor imposed a state of emergency, the legislature passed Act 92 to grant the Secretary of State authority to modify election procedures to ensure voter access and public safety. The Secretary provided guidance allowing municipalities flexibility in scheduling elections and setting forth standards for safely conducting them. South Burlington will be following those standards for early voting on the School District’s budget and on the May 28th in-person voting day.

Worksheets and online learning do not substitute for trained teachers in classrooms. The legislature, as well as the South Burlington School Board, recognize this and are seeking to ensure that our public schools are adequately funded to make up for our students’ lost time. Admittedly, this is asking a lot of our community, but the students will need our support this Fall.

Judiciary Committee Update

A new normal is slowly taking hold in the Vermont legislature. All committees are back to meeting, albeit remotely, and are testing technology that can be used for secure remote voting. The legislature is ensuring that we can do the important work to help Vermonters impacted by the coronavirus pandemic.

The Judiciary Committee on which I serve got back to business the first week of April. The Committee last met in mid-March, and since then the legal landscape over which it has jurisdiction has changed dramatically. Shortly after our last Committee meeting, the Vermont Supreme Court issued Administrative Order 49, a Declaration of Judicial Emergency and Changes to Court Procedures. The order suspended all non-emergency Superior Court hearings and provided a list of the emergency hearings that could still proceed, including those necessary to ensure due process rights or public safety. It suspended all hearings of the Judicial Bureau, the court that hears cases involving civil citations issued by state or local law enforcement officers. The order placed restrictions on physical access to Vermont’s courthouses while also broadening the authorization for remote telephonic or video access to permitted hearings.

Last week, the Judiciary Committee heard from witnesses who addressed how the restrictions related to coronavirus, including those in Administrative Order 49, have impacted the State’s criminal and civil justice system. Chief Justice of the Vermont Supreme Court Paul Reiber and Chief Superior Judge Brian Grearson explained that the courts are operating with substantially-reduced staff and have expanded use of remote video hearings.

A representative of the Department of State’s Attorneys and Sheriffs testified that they are still available around the clock to work with law enforcement. Most of their work is being conducted remotely, with few hearings required to be in person. For new non-violent offenses, law enforcement is citing offenders and scheduling hearings six to eight weeks in the future, with the possibility of further postponement. As for offenses related to public safety, however, individuals are still being arrested and lodged pending a bail hearing.

A significant portion of the work of the State’s Attorneys as well as the Defender General’s Office is seeking to safely reduce the prison population, where inmates in close proximity are especially vulnerable to an outbreak of the coronavirus. State’s Attorneys are not requesting that defendants be held on bail where public safety is not at risk. They are also seeking dismissal of cases based on time served and early release in other situations.
A representative of the Defender General’s Office explained that their focus has shifted from handling incoming cases to looking back at past cases to see if they involved vulnerable individuals, such as those who are elderly, who are currently serving sentences. Defenders are filing petitions for extraordinary relief seeking early release of these individuals in appropriate circumstances.

The efforts of the State’s Attorneys, Defender General’s Office, and the Department of Corrections have resulted in a decrease of 208 inmates in Vermont prisons (from 1671 to 1463) over the previous three weeks.

Witnesses testified that domestic violence is a particular concern. Social distancing recommendations can put victims at risk because domestic abuse thrives in secrecy and isolation. It becomes more difficult for a victim to reach out for help when trapped in a home with the abuser. The economic downturn adds additional chellenges, increasing stress on relationships and making it more difficult for a victim to leave a domestic violence situation.

Organizations that help victims of domestic violence are still operating, and the domestic abuse hotline (800-228-7395) is still open 24 hours a day. Although shelter capacity for victims has become more limited, those who are escaping abusive situations are being housed in hotels and motels for the time being.

In the coming days, the Judiciary Committee will continue to monitor how the coronavirus response is impacting access to justice and public safety and will consider whether any emergency legislation is needed to address those impacts.

House Judiciary Committee Update

The 2020 legislative session is reaching its halfway point. March 13 will be the “crossover deadline,” the date by which House and Senate committees must take action on any bills that they want to send over to the other body. The only exceptions are the Appropriations and Ways and Means committees, which have one additional week to finish their respective work. In the second half of the session, the House will be considering the Senate bills that have crossed over. I serve on the House Judiciary Committee, and the following explains some of the bills we will be sending to the Senate for its consideration during the second half of the session.

Sentencing Reform: Vermont’s current criminal law is a bit of a hodgepodge. It is made up of common law that has been put into statute and new offenses created by the legislature over the years. Our criminal laws have evolved in a manner that has led to inconsistency between offense levels – similar conduct leads to different punishments. The House passed H.580, which starts the process of implementing recommendations from the Sentencing Commission related to restructuring Vermont’s criminal code. The Sentencing Commission continues its work and, by the end of the year, will make additional recommendations on proposed sentences for criminal offenses in time for the legislature to address them next biennium.

When the restructured criminal code goes into effect, it will provide more consistent interpretations of our criminal offenses, better notice to citizens and police as to what conduct is prohibited, and greater proportionality between offenses and punishment. In addition, the updated code should lead to shorter terms of imprisonment for many offenses, thus reducing our incarcerated population.

Keeping Our Kids Safe: In 2020, the House continued its ongoing work to update Vermont’s child sexual exploitation laws. While this is a subject that makes many people uncomfortable, it is not a subject we can avoid if we want to protect our youth. Current state laws do not address existing file sharing technology used for child pornography, which means some people who should be charged with very serious crimes currently have a loophole. The House Judiciary Committee is working on legislation (H.936) to ensure that anyone engaged in sexual exploitation of children will be held accountable.

Good Samaritan Law: Some laws in Vermont are unfortunate relics of past times. Under current law any unmarried woman engaging in sexual intercourse meets our legal definition of prostitution. In February, the House passed a bill (H.568) to create a committee to review Vermont’s prostitution laws with an aim to modernize them while maintaining criminal penalties for trafficking, coercion, and exploitation of minors.

In addition, the bill added prostitution to our Good Samaritan Law. The Good Samaritan Law protects those calling for emergency help from being prosecuted for certain criminal offenses. For example, someone using heroin can call 911 to request emergency assistance for a fellow user who has overdosed without fear of then being charged with the offense of possession of heroin.

By adding prostitution to the Good Samaritan Law, we are helping to ensure that people who are often in dangerous situations have better access to law enforcement protection. Whether one supports decriminalization of sex work, is opposed to decriminalization, or is on the fence, we can all agree vulnerable Vermonters should be kept safe. This law is an important step to ensuring more protections for these victims.

Town Meeting Report

Criminal Justice Reform

Justice Reinvestment II: The House is focused on criminal justice reform this biennium. The House Corrections and Institutions Committee has taken the lead on related initiatives. The work is driven by commitment to building a Vermont criminal justice system that is equitable and rehabilitative; a system where sentenced and incarcerated Vermonters have access to due process and services that meet their needs and set them up for successful re-entry and participation in our communities; a system where people are treated with dignity and respect; and a system that ensures public safety.

Despite foundational strengths and progress improving criminal justice outcomes, Vermont faces some challenges in continuing to safely reduce corrections populations. We have started to see an increase in violent crime, overcrowded prison facilities, and critical gaps in how people within the corrections system with behavioral or mental health needs are identified and connected to resources.

To better understand the drivers of crime, recidivism and prison population, the legislature enlisted the help of the Council of State Governments. It has led work that has included all branches of Government and stakeholders. This process is known as Justice Reinvestment II. CSG helped synthesize mountains of criminal justice data and, as a result, the House is now working on legislation that will restructure furlough and parole to ensure better consistency and access to due process; strengthen policies to allow people to earn more time off their sentences for good behavior; strengthen connections to appropriate substance use disorder treatment and mental health services in the community; and develop re-entry housing that better fits the needs of people leaving prison. We believe these policy changes and strategic investments will ensure more successful re-entry for those leaving prison and lower recidivism and re-incarceration rates, which will result in savings and greater public safety.

Sentencing Reform: Vermont’s current criminal law could be defined as a hodgepodge. It is made up of common law that has been put into statute, and new offenses created by the legislature over the years. Our criminal laws have evolved in a manner that has led to inconsistency between offense levels – similar conduct leads to different punishments. The House passed H.580, a bill I introduced, which starts the process of implementing recommendations from the Sentencing Commission related to restructuring Vermont’s criminal code. The Sentencing Commission continues its work and, by the end of the year, will make additional recommendations on proposed sentences for criminal offenses in time for the legislature to address them next biennium.

When the restructured criminal code goes into effect, it will provide more consistent interpretations of our criminal offenses, better notice to citizens and police as to what conduct is prohibited, and greater proportionality between offenses and punishment. In addition, the updated code should lead to shorter terms of imprisonment for many offenses, thus reducing our incarcerated population.

Judiciary Committee Update

Keeping Our Kids Safe: In 2020, the House continued its ongoing work to update Vermont’s child sexual exploitation laws. While this is a subject that makes many people uncomfortable, it is not a subject we can avoid if we want to protect our youth. Current state laws do not address existing file sharing technology used for child pornography, which means some people who should be charged with very serious crimes currently have a loophole. The House Judiciary Committee is working on legislation to ensure that anyone engaged in sexual exploitation of children will be held accountable.

Protecting Victims of Domestic Violence: The House Judiciary Committee is working diligently to protect those trying to escape from domestic violence with H.610, a bill that prevents people served with abuse prevention orders from accessing firearms. Often the time after an abuse prevention order is served is the most volatile and the most dangerous for the person seeking relief. 50 percent of murders in Vermont occur in domestic violence situations. The Judiciary Committee has developed H.610 to offer additional security and safety for endangered Vermonters.

Good Samaritan Law: Some laws in Vermont are unfortunate relics of past times. Under current law any unmarried woman who engages in sexual intercourse meets our legal definition of prostitution. In February, the House passed a bill (H.568) to create a Committee to review Vermont’s prostitution laws with an aim to modernize them while maintaining criminal penalties for trafficking, coercion, and exploitation of minors.
In addition, the bill added prostitution to our Good Samaritan Law. The Good Samaritan Law protects those calling for emergency help from prosecution for certain criminal offenses. For example, someone using heroin can call 911 to request emergency assistance for a fellow user who has overdosed without fear of then being charged with a the offense of possession of heroin.

By adding prostitution to the Good Samaritan Law, we are helping to ensure that people who are often in dangerous situations have better access to law enforcement protection. Whether one supports decriminalization of sex work, is opposed to decriminalization, or is on the fence, we can all agree vulnerable Vermonters should be kept safe. This law is an important step to ensuring more protections for these victims.

Education

Universal Pre-K: Universal PreKindergarten is an important part of Vermont’s education system. The House Education Committee has taken extensive testimony on a bill to clarify Act 166, a 2014 initiative that provides 10 hours of publicly-funded Pre-K per week for all Vermont students. Vermont employs a “mixed delivery” system in which both public schools and private programs play an important role. Among other clarifications, the bill attempts to streamline Universal Pre-K administration by disentangling the dual oversight roles of the Agency of Education and the Agency of Human Services. The Committee is also considering whether private providers should be required to hire licensed educators to provide direct instruction to all students within three years. (Current regulations require simply that a licensed educator be present.) The bill includes a study on the ability of private providers to meet this goal, which would examine workforce capacity, cost and funding implications.

A Focus on Literacy Education: Vermont has a great education system that requires continued oversight to ensure all our students achieve success. In the latest National Assessment of Educational Progress (NAEP), also known as the “Nation’s Report Card,” Vermont’s literacy and math scores dropped. Though our NAEP scores remain slightly above the national average, the 2019 report indicates that “better than the national average” is still alarming: 32 percent of our fourth graders scored below the NAEP “basic” level, 31 percent demonstrated only “basic” reading skills, and just 37 percent are “proficient” (28 percent) or “advanced” (9 percent).

Against that backdrop, the House Education Committee is developing a literacy bill with a clear goal: to ensure that all Vermont students learn to read. The bill takes a regional approach by offering grant money, through the Education Fund, to groups of four or more supervisory unions that are geographically adjacent. These regional groups would work together, in a sustained and targeted manner, to adopt best practices. Funds could be used for staffing, coaching, training or other approaches to guarantee that all K-3 students, and especially those who struggle, receive instruction from highly skilled teachers in the five foundational pillars of literacy: phonemic awareness, phonics, reading fluency, vocabulary, and comprehension.

School Construction: Since Vermont put a moratorium on State funding for school construction aid a decade ago, districts have been deferring maintenance or issuing bonds to pay for projects. Over last summer and fall, an informal working group led by the Vermont Superintendents Association compiled a report indicating that schools in the State face up to $565 million in pending or proposed projects. The House Education Committee is reviewing H.209, a bill on which I am the lead sponsor, that sets up a task force to assess how other states are addressing school construction, and the costs and options for Vermont.

Environmental Issues

Global Warming Solutions Act: The House has spent considerable time focusing on strategies to address climate change. In February, the House passed the Global Warming Solutions Act (GWSA) based on H.688, a bill on which I was one of the lead sponsors. The GWSA buildes accountability into our systems of reducing greenhouse gases.
Climate change is not a distant threat. It is happening today, and it is accelerating. The 2010s was the hottest decade on record; the 2000s was the second hottest. Vermont saw six storms that qualified for FEMA assistance in the 2000s. In the 2010s that number grew threefold to 18. We are experiencing more extreme-temperature events, more power outages, and more ticks than ever before.

Vermont has set ambitious climate goals, but up until now, they have lacked teeth. The lack of accountability and coordination has slowed progress. In fact, far from leading on climate, Vermont has lagged behind Massachusetts, Maine, and New York. We are the largest per capita emitters of greenhouse gas in the Northeast and the only state whose emissions have increased in the last 30 years. Massachusetts passed a GWSA law over a decade ago mandating greenhouse gas reductions. Their emissions have declined 25 percent while their economy has grown 25 percent. Maine and New York both passed similar bills last year.

GWSA lays the foundation for building a future of resilience, energy transition, and economic development. It starts by establishing an accountability framework. It also directs the State to work with community experts to develop a roadmap for action. Taken together, these steps will move our goals into action so we can proactively adopt policy to address climate change.

Act 250 Amendments: For fifty years, Act 250 has provided a critical tool for directing development in Vermont in a manner that promotes our shared vision of prosperous cities, villages and towns surrounded by working farms and forests, all set within a landscape of unspoiled mountains with clear air, and clean streams, rivers, lakes and ponds. Our State, and the challenges we face, have evolved since Act 250 was enacted. The rate of land development is increasing and has substantially exceeded the rate of population growth. Water quality is declining. Species are going extinct at an ever-accelerating rate due to loss of habitat. Extreme weather caused by the climate crisis have led to increased threats to our communities. Recognizing these issues, the House passed H.926 to modernize Act 250 to reflect today’s challenges and needs.

This bill proposes changes that require consideration of climate change, ecosystem protection, and environmental justice when proposed development must comply with Act 250 (only approximately ¼ of development in Vermont must obtain an Act 250 permit). H.926 strikes a balance between increasing project review to protect important resources while releasing certain areas from Act 250 review where we want to encourage development. It eases Act 250 regulations for downtowns and village centers where development is strategic and sustainable. It also works to strengthen natural resource protection by promoting sustainable trail development, protecting forest blocks, and supporting working forests.

Climate Change and Transportation: Last year, the General Assembly established a pilot Electric Vehicle (EV) incentive program that rolled out in December 2019. This program has already helped fund more than 50 new plug-in car purchases. The House is currently considering a $3 million proposal to continue promoting EVs, including more public charging infrastructure.

About 45 percent of Vermont’s carbon emissions currently come from transportation, so this energy sector is the biggest target in our effort to tackle the climate crisis. The House is considering increased investment in public transit this year and the promotion of Transportation Demand Management plans that incentivize carpools, biking, and telecommuting to reduce the need for commuting and parking spaces.

Older Vermonters Act
The number of Vermonters over the age of 65 is projected to jump by 50 percent over the next decade. Our current demographic makes us the second oldest state in the nation behind Maine.

H.611 establishes an Older Vermonters Act, detailing a system of services, supports, and protections for Vermont residents 60 years of age or older to remain as independent as possible into their later years. This “bill of rights” ensures that policy decisions relative to older Vermonters enhance their self-determination, safety and protection, financial security, optimal health and wellness, social connection and engagement, housing and transportation, and family caregiver support.

The legislation also directs the development of a Master Plan for Aging in Vermont to serve as a blueprint for state government, local communities, private organizations, and philanthropy to build environments and systems that promote healthy aging.

The bill ensures that the Department of Disabilities, Aging and Independent Living (DAIL) will act as a guiding voice in state government regarding the needs of older Vermonters. It also requires DAIL to set up a process for registering all business organizations providing in-home services to older Vermonters not covered by Medicaid.
Other features of the bill include a study committee to examine the issue of self-neglect in older Vermonters, as well as formal reporting on adult abuse and neglect complaints and investigations.

Reforming Noncompete Agreements
This year, the House Commerce and Economic Development Committee looked at reforming noncompete agreements. Such agreements require employees to promise not to work in the same industry in a geographic region for a certain amount of time after leaving the job. In some cases, these agreements have been overused by employers. Signing a noncompete agreement may mean that the employees cannot find gainful employment in their area of expertise or geographic region for a period of time. This disproportionately harms low-level employees, leaving them without the ability to work. At the beginning of the Biennium, I introduced a bill (H.1) that would ban noncompete clauses in Vermont. In February, the House passed an amended version of the bill that would prohibit most noncompete agreements between an individual and a business. The bill limits noncompete clauses to a small sector of employees – those that are higher-income earners (about $75,000) and are key executive or administrative employees. It provides them with ten days to review the agreement, and the ability to have the agreement reviewed by an attorney, with the cost reimbursed by the employer. Non-solicitation agreements and confidentiality agreements remain available for businesses to use with their employees to protect proprietary information and client lists.

Regulating Cannabis
In 2018 the legislature decriminalized the possession of small amounts of cannabis. Cannabis is therefore already legally in use in Vermont, and has been in use even before these legalization efforts. But, in Vermont, individuals’ primary source for cannabis is the black market. The bill the House passed (S.54) creates a regulated market for cannabis, ensures that the state collects tax revenue from the sale of cannabis, and regulates cannabis products so that Vermonters know what is in the products they purchase and consume. A key feature of this bill is the use of tax revenue to focus on preventing youth use and ensuring our roads are safe. The goal of this bill is the elimination of the black market as much as possible, delivering products of certified purity and known potency, and minimizing the growth of heavy and hazardous use by adults and any use by children.

Strengthening Vermont’s Rural Health Care Systems
During the 2019 session, the House took the lead in creating the Rural Health Services Task Force to evaluate the state of rural healthcare in Vermont and consider what is needed for the sustainability of this system. The Task Force brought together members of State government with different types of health service providers from across rural Vermont, including representatives of hospitals, mental health services, substance abuse treatment, primary care, visiting nurses, and private practice. The task force returned to the legislature at the beginning of the 2020 session with two main recommendations: to expand telehealth and to address our healthcare workforce shortages. The House is now focusing health care policy around these two themes.

“Telehealth” incorporates a variety of practices that allow for medical care and advice to be delivered remotely. In “telemedicine,” an appointment takes place via a real-time video connection between a patient and a provider. The House is working on expanding insurance reimbursement for telehealth. Telehealth has potential to increase access to healthcare for rural Vermonters, older Vermonters, and others who face challenges in getting to an appointment. Telehealth access is only available to the extent that communities have strong enough Internet to take advantage of these opportunities, so the House recognizes the link between broadband Internet expansion and access to healthcare.

Vermont’s health care workforce is currently in need of 70 primary care physicians, and this number is only expected to increase: 36% of Vermont’s primary care physicians are over age 60. Vermont is also short nearly 4,000 nurses, which puts significant strains on our remaining workforce and also impacts the quality of care for our patients. The House is putting forth a variety of plans to address this workforce need, including supporting students through scholarships and loan repayment and reducing excessive barriers to licensure. In addition, the House is considering a proposal to put additional funding into training for EMS personnel, a need that is felt by many of Vermont’s communities. We look forward to supporting educational opportunities for Vermonters while also maintaining a strong health care workforce.

Updating Our Constitution
The House is committed to defeating structural racism to build a truly just and equitable society. People of all races and genders who live in, work in, and visit Vermont should feel welcome and safe. Proposal 2, a proposed amendment to ban slavery in the Vermont State Constitution, unanimously passed the House on January 21st. It would amend the Vermont Constitution to clarify that slavery and indentured servitude in any form are prohibited. Article 1 of Vermont’s Constitution currently outlaws only adult slavery, setting the age for which a person cannot be enslaved at 21. This implies that the Vermont framers condoned child slavery. (In actuality, they were more likely allowing for youth apprenticeships that were very common at the time.) While the 13th Amendment of the U.S. Constitution banned slavery in 1865, Proposal 2 would close the age loophole and send a very clear message that slavery or indentured servitude is not condoned under the Vermont Constitution.

The process to amend the State Constitution spans two different sessions in the Legislature. An amendment must originate in the Senate and be approved by a two-thirds vote. Then it must receive a majority vote in the House. The passage of this amendment requires House and Senate approval in this biennium (before May 2020) and in the next biennium (before May 2022), and then a majority vote in the general election (November 2022). It is a deliberately slow process as changing our State’s Constitution should not be taken lightly.

 

Domestic Violence and Firearms

Vermont is a safe state. According to the Federal Bureau of Investigation, Vermont has the second lowest per capita rate of violent crime in the country. Despite this distinction, Vermont has a persistent and dangerous domestic violence problem. Over the past five years, the number of people sentenced for felony domestic violence has increased by 23%. Between 1994 and 2017, half of all homicides in Vermont were related to domestic violence.

There is a strong and deadly relationship between domestic violence and firearms. Of all women shot to death in the United States, half were shot by their intimate partners. In Vermont, over half (55%) of domestic violence homicides between 1994 and 2017 were committed with firearms. Even when abuse does not end in homicide, abusers’ access to firearms can enable them to injure, threaten, and traumatize their partners.

Often, before these harms occur, law enforcement has been involved. Of women killed by their intimate partners in the United States, half had contact with the criminal justice system about their abuse within the preceding year. Contacts with law enforcement provide critical windows of opportunities for intervention to prevent harm.

Recognizing this, in 2018 the legislature passed Act 92, which allows law enforcement to remove firearms when they respond to a report of domestic violence. Similar protections, however, are not in place for domestic abuse victims who use the civil court process to seek safety. The most lethal time for victims of domestic violence is when they initially separate from their partners. At this time they may seek a relief from abuse order requiring the abuser to cease contact.

During the current session, the House Judiciary Committee has been working on a bill, H.610, that would provide additional protections when an individual seeks a relief from abuse order in civil court. The bill seeks to ensure that these protections are consistently available to victims across the State. It standardizes procedures to ensure relinquishment of firearms by an abuser when a relief from abuse order is issued, thus taking advantage of the window of opportunity when a victim has taken the step to end the abuse.

Courts already have the authority to order relinquishment of firearms, but this authority is inconsistently exercised. Perhaps a victim does not think to tell the court that the abuser possesses firearms. Even if the court orders firearm relinquishment, it may not occur because there is not a clear path for law enforcement to retrieve firearms from households.

H.610 would add clarity and consistency to the process of seeking emergency and final relief from abuse orders that include provisions requiring relinquishment of firearms. When someone goes to court to seek a relief from abuse order, the individual must fill out an affidavit and complaint form provided by the court. The bill would require the affidavit to include a prompt asking whether the alleged abuser possesses firearms. If the affidavit or other evidence indicates that this is the case, the court must include a relinquishment requirement if it issues a relief from abuse order.

When a law enforcement officer serves the order, the officer will determine whether to immediately seek relinquishment or whether to obtain a warrant to seize the firearms, depending on factors such as safety and the logistics of removing the firearms. The bill requires that the return of service (a document filed with the court indicating that the order has been served) must state the number of firearms, if any, that were relinquished. The bill also requires law enforcement serving the order to attempt to contact the person who sought the order following relinquishment or seizure of firearms. Both of these provisions are aimed at providing information to help give the person escaping abuse a sense of security.

Ensuring that the issue of firearms relinquishment is addressed would save lives, as research demonstrates. A study published in the American Journal of Epidemiology, for example, found that state laws requiring that abusers relinquish guns are linked to a 12 to 16 percent reduction in intimate partner murders with guns.

H.610 contains other provisions to reduce firearm violence, particularly in the context of domestic violence. It would close the so-called Charleston Loophole for background checks; make it a State crime for an individual subject to an emergency or final relief from abuse order to possess, ship, transport, or receive a firearm; and allow a family member to seek an Extreme Risk Protection Order directly from the court rather than having to go through law enforcement. The bill provides additional tools to reduce firearm homicides and injuries in the context of domestic violence.

Medical Monitoring

Vermonters exposed to toxic chemicals by polluters may develop debilitating or deadly diseases that do not become symptomatic until long after exposure. It is critical to detect any disease that does develop as early as possible. This is done through medical monitoring, which includes screening and ongoing observation to detect the symptoms early of diseases linked to exposure to a toxic substance. It ensures that those harmed are referred for medical care at the earliest possible time, when effective treatment can improve outcomes.

Last year, for the second time in two consecutive Bienniums, the legislature passed a bill that would require companies that have wrongly exposed Vermonters to disease-causing toxic chemicals to pay for medical monitoring. Under the bill, to prove that they are entitled to the remedy of medical monitoring paid for by the defendant, plaintiffs would have to convince a judge or jury that (1) the company wrongfully exposed them to a known toxic substance, (2) the exposure to the toxic chemical increased their risk of developing a latent disease, (3) the exposure was at a level that could credibly trigger the need for medical monitoring, and (4) there are diagnostic tests that can detect the latent disease. While it set a high bar of proof, the bill would have provided a path for Vermonters to receive a remedy that was not available under Vermont law.

Just as he had done when the prior version of the bill reached his desk the previous Biennium, the Governor vetoed the 2019 version of the bill, claiming that it would make it difficult for Vermont manufacturers to secure insurance or cover claims. This view, unfortunately, was based on speculation regarding insurance cost and availability. Testimony before the House Judiciary Committee did not provide any evidence that manufacturers in the 16 states allowing the remedy of medical monitoring have faced problems obtaining insurance. The Governor’s veto was based on being risk averse to business uncertainty when he should have been risk averse to the uncertainty faced by individuals who have been exposed to toxic chemicals and are worried about their health.

In any event, the Governor’s concerns about insurance have largely become moot in the past month. As the legislature sought to ensure that the remedy of medical monitoring was available to Vermonters, a lawsuit seeking that remedy had been progressing in Vermont federal district court. In December, the court ruled that, indeed, such a remedy is recognized under the common law (court-made law) of Vermont.

This ruling does not, however, mean that there is no need to pass legislation establishing the medical monitoring remedy. Creating the remedy in statute as opposed to court-made law would provide more certainty to Vermonters. The bill the legislature passed is more specific as to what plaintiffs must prove to show they are entitled to the remedy. In addition, under the bill, it would be less burdensome for plaintiffs to prove entitlement to the remedy than under the court’s ruling. It would still be difficult, just less so. The bill also exempts farmers and small businesses from being subject to the medical monitoring remedy whereas the court-created remedy has no such exemptions to its application. Finally, the court-recognized remedy is not yet assured as the case will likely go through a lengthy appeals process in the courts.

In short, when the legislature returns for the second session of the Biennium, it should override the Governor’s veto of the medical monitoring bill in order to provide Vermonters exposed to toxic substances the certainty they deserve.