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.

Updating Vermont’s Criminal Laws

Vermont’s current criminal laws need to be reexamined and reorganized. Over 900 criminal offenses are contained in various parts of the Vermont statutes. Statutory criminal prohibitions in the State cover commercial interactions, environmental regulations, and traditional common law crimes of violence and property damage. Current penalties range from a fifty-cent fine to death. Archaic criminal offenses such as defiling a butter crate are still on the books. Some of the State’s crimes come from common law developed by judges that has long since been written into the criminal code. Others were created by the legislature over the years, often triggered by a crime or social problem that gained public interest at the time, compelling the legislature to act.

The structure, or more accurately the lack of structure, of Vermont’s current criminal law presents challenges. There are inconsistent penalties for conduct that deserves similar consequences. For example, someone who writes a check to themselves out of grandma’s checkbook can face up to 10 years in prison, but someone who uses grandma’s credit card without permission for the same amount faces only one year in prison.

In 2018, the legislature passed Act 142 to reconstitute the Vermont Sentencing Commission. Its goal is, in part, to reexamine and reorganize the State’s criminal code and make recommendations regarding criminal sentencing to the legislature. It was charged with reducing geographical disparities in sentencing and developing a classification system that creates categories of criminal offenses based on the maximum potential period of imprisonment and the maximum potential fine. In doing so, it was to review existing sentencing law and practice as well as the effective use of criminal punishment to determine whether current statutory penalties are appropriate. In short, the Commission will determine how Vermont’s criminal laws can be transformed into a more rational criminal code.

The Commission is made up of a diverse group of individuals involved in the criminal justice system: legislators, prosecutors, defense attorneys, and representatives from the Department of Corrections, Department of Public Safety, the Crime Research Group, and the Center for Crime Victim Services. I have been serving on the Commission on behalf of the House Judiciary Committee.

Since its creation, the Commission has met eleven times. In November, it issued a report as required by Act 142. The report made several recommendations, but also noted that additional work remained to be done.

The Commission recommended that the legislature implement a classification scheme that includes five classes of misdemeanors (Classes A through E) and five classes of felonies (Classes A through E), with tiered maximum imprisonment terms and maximum fines. For instance, a Class A misdemeanor would carry a penalty of maximum imprisonment of two years and a maximum fine of $10,000, whereas a Class E misdemeanor would carry no term of imprisonment and a maximum fine of $500. The Commission defined four broad categories of offenses – sexual offenses, property offenses, motor vehicle offenses, and crimes against persons – and reviewed each offense and their associated statutory penalty within the categories to determine how they should be placed in the proposed classification structure. In its report, it made classification recommendations for sexual offenses and property offenses.

Work is continuing on classifying motor vehicle offenses and crimes against persons. The Commission will also continue to evaluate whether to decriminalize certain fine-only offenses, making such offenses civil infractions rather than crimes. The end goal of this multiyear effort is to create a more consistent and understandable criminal code to improve our criminal justice system.

Access to Justice

The Vermont Supreme Court has declared that November is Access to Justice Month. This designation casts light on the fact that each year thousands of Vermonters enter courthouses as plaintiffs or defendants without a lawyer. Without legal representation, they do not have equal access to justice and can suffer profound impacts on their housing, family, livelihood and wellbeing.

Many Vermonters simply decide not to go to court to resolve legal disputes. When they do go to court, it is often without legal representation. Statistics from Vermont in 2012 show that 94% of defendants in small claims cases represented themselves; 84% of parentage cases and 54% of divorces involved at least one self-represented litigant; 90% of the defendants in landlord-tenant cases were self-represented compared to only 24% of plaintiffs; and 84% of defendants in collections and 74% in foreclosure cases represented themselves, usually facing lawyers on the plaintiff’s side. There is no reason to believe that this rate of self representation has substantially changed in recent years.

Having legal representation in court, particularly when facing a represented opponent, can be critical for equitable access to the civil justice system. Some low-income Vermonters are fighting for custody of their children or are seeking protection from an abusive spouse. Others may become homeless due to eviction or foreclosure. Elderly Vermonters may be victims of fraud. Unable to afford a lawyer, such individuals must either forego judicial remedies, perhaps failing to show up in court at all, or proceed at a disadvantage, particularly when they face a lawyer for the other side.

Many organizations are trying to alleviate this situation. The Vermont State Bar Association provides assistance through its pro bono (providing legal representation for free) and low bono (providing it at reduced rates) programs. The Vermont Law School assists through its South Royalton Legal Clinic. Vermont Legal Aid, a non-profit corporation, provides free civil legal services to those with a disability, living in poverty, or over age 60. Its partner, Legal Services Vermont, provides a legal advice hotline and coordinates pro bono services of private lawyers through the Vermont Volunteer Lawyers Project. Those facing eviction can receive assistance through the Pro Bono Eviction Clinic also run by Legal Services Vermont. Unfortunately, because of inadequate funding, these groups are able to assist only a fraction of those in need of assistance or representation.

It would be to the State’s economic benefit if more indigent litigants received legal representation. A recent report, Economic Impacts of Civil Legal Assistance Programs in Vermont, shows that money invested in providing legal services to Vermonters has a high rate of return. The report quantifies the economic impact that legal services for low-income citizens have on the Vermont economy. It determined that every dollar invested in such services returns eleven dollars to the economy. The returns to individuals and families include SSI, SSDI, and other Social Security benefits; Medicaid and Medicare-funded reimbursements; child and spousal support payments; and Veteran’s benefits. Often these returns are coming into the State economy from Federal programs. In addition, legal aid organizations in Vermont also achieved cost savings for the State. By preventing incidences of domestic violence, they reduced the need for emergency treatment and lower law enforcement costs. They also saved by avoiding the costs of foreclosure, and avoiding the costs of emergency shelters and other costs of homelessness by preventing evictions. These returns and cost savings were obtained when litigants were provided legal counsel. And the benefit is not solely monetary – the income generated or saved goes into the pockets of individuals and families to pay for groceries, rent, medicine, clothing, and transportation, providing a level of stability to these families.

In the upcoming session, the legislature should keep in mind the benefit of ensuring that indigent litigants have access to legal representation. Doing so not only provides significant economic returns, but also fulfills the State’s obligation to provide equal justice under the law.

Justice Reinvestment

The State has recently launched a Justice Reinvestment initiative to develop policy options to reduce the costs of incarceration and reinvest those savings in programs that reduce recidivism and increase public safety. But this is not the first such effort in Vermont. In the mid-2000s, Vermont faced a high and unsustainable rate of prison population growth. To address this problem, in 2007 Vermont formed a Justice Reinvestment Working Group.

The State received help from the Council of State Governments (CSG), a bipartisan organization that helps states shape public policy. To develop options for justice reinvestment, CSG worked with individuals involved with the Vermont criminal justice system to analyze its criminal justice data and interview stakeholders across its criminal justice system. As a result of this work, in 2008, Vermont enacted laws that improved screening and assessment of offenders for behavioral health treatment needs, increased their access to community-based substance use treatment programs, focused supervision resources on individuals most likely to reoffend, and expanded transitional housing opportunities and job training programs. Since then, the legislature has expanded eligibility for alternatives to incarceration, such as house arrest and furlough, and reinvested additional funds in prison and community-based treatment and reentry services.

These laws helped to reverse the upward pressure on the State’s prison population. In 2007, that population was projected to increase 23% by 2018. Instead, the population actually fell 16% between fiscal years 2007 and 2018. Even though the State’s incarcerated population has declined, Vermont has maintained one of the lowest crime rates in the nation, with the second lowest rate of property crime and violent crime.
Despite this progress, Vermont’s criminal justice system is currently facing some adverse trends. The State has had an expanding pretrial detention population (individuals held without bail or unable to post bail). Although still low, the violent crime rate has inched up. Recidivism rates, though generally quite stable, have been on the rise.

Because of these trends, State leaders recognized that we should re-evaluate whether we are effectively investing in strategies that break the cycle of crime and incarceration. They also recognized that we need to better identify, analyze and address the challenges in the State’s criminal justice system caused by the opioid crisis. Accordingly, the second Justice Reinvestment Working Group was formed, again with the assistance of CSG.
The new working group, which first met in August, consists of leaders from all aspects of the Vermont criminal justice system as well as mental health experts and legislators. It is charged with assessing the population trends and programming in the State’s corrections system and considering criminal justice reform strategies with the overarching goals of promoting safer, healthier communities and reducing costs.

The working group, with CSG’s help, will delve into the following key questions: How can the State reduce the number of people who cycle back through the system into prison while improving public safety? How can the State build on successful substance addiction treatment programs to reach additional rural and isolated communities and populations? How do individuals’ behavioral health challenges, such as serious mental illnesses and substance addictions, affect their movement through the criminal justice system and reentry into their communities? How can the State improve data sharing, tracking, and measurement of the prison population to better inform decisions and planning?

To answer these questions CSG staff will review the available data held by the Department of Corrections, courts, prosecutors, and others. They will also interview individuals in the criminal justice and mental health systems, as they did in 2007. Then the working group will analyze that material and, by December 1, 2019, report on the data collected, options developed and analyzed, and recommendations for policy changes. I will be collaborating with the Chair of the Judiciary Committee, who is a member of the working group, to further this important work.

Let’s Not Wait

“Do something!” the crowd chanted, drowning out Ohio’s governor at a vigil following a mass shooting on a busy street in Dayton. That shooting, in early August, claimed nine lives. It occurred less than 24 hours after 22 lives were taken in a mass shooting at a Wal-Mart in El Paso, Texas and less than a week after four were fatally shot at a food festival in Gilroy, California. At the end of August, another mass shooting, with a killer shooting randomly from his car, took seven lives in Odessa, Texas.

The calls to “do something” initially resonated in Washington. It appeared that the Senate would actually take up legislation expanding background checks and promoting “red flag” laws. Unfortunately, that resonance has dissipated. The issue quickly lost its salience in the nation’s capital.

Salience is defined as “the quality of being particularly noticeable, important, or prominent.” The urgency of addressing gun violence is most noticeable, important, and prominent soon after horrific events like those in Dayton, El Paso, Gilroy, and Odessa. Last year, gun violence was salient in Vermont after the mass shooting in Parkland, Florida and the near miss in Fair Haven, Vermont. The salience of those events helped pave the way for the legislature to pass, and the Governor to sign, laws making it harder for those who mean to hurt themselves or others to obtain firearms and reducing the lethality of firearms that may be misused. Act 97 allows law enforcement to show a judge that an individual presents an extreme risk of harm to himself, herself or others and obtain an Extreme Risk Protection Order, requiring the person to relinquish any dangerous weapons. Act 92 allows law enforcement to temporarily remove firearms from the scene of a domestic violence incident. And Act 94 expands the requirement for background checks to include private sales, places restrictions on the sale of firearms to those under age 21, limits the transfer and possession of high-capacity ammunition magazines, and bans the transfer and possession of bump-fire stocks.

The salience of an issue, though necessary, may not be sufficient impetus to enact laws to address gun violence. Last December, a young man committed suicide in Essex with a handgun that he had purchased four hours earlier. His parents made this incident salient, urging legislators to pass a law to establish waiting periods for firearm purchases. And the legislature did pass a bill that established a 24-hour waiting period for the purchase of handguns. But despite testimony and studies showing that such a waiting period would save lives, Governor Scott vetoed this bill.

I would prefer that legislative action on beneficial policy such as reasonable firearm regulation did not require salience: Vermont should not have to wait for the next salient event – a near miss or personal tragedy – to do something to reduce potential harm from firearms. And despite the progress that the State made last year, in light of the setback from the Governor’s veto this year, there is more to be done. Let’s not wait until the issue becomes salient again.

Let’s not wait until we have more firearm victims in domestic violence situations. Let’s find ways to make sure firearms are kept from domestic abusers or those threatening such abuse.

Let’s not wait until a child accesses an improperly-stored firearm and harms himself, herself or another person. Let’s strengthen our safe storage laws.

Let’s not wait for additional individuals to acquire firearms easily and quickly to cause harm to themselves or others. Let’s continue to push for a reasonable waiting period for the purchase of firearms. Let’s consider restrictions on the most lethal firearms.

Let’s not wait for federal action to address firearm violence. Let’s continue to act locally, knowing that we are participating in a regional solution, joined by other New England states implementing commonsense firearm restrictions.

In the next legislative session, I do not intend to wait. I will continue my efforts to “do something” to reduce the harm from firearms.

Restoring Lake Champlain

The deteriorating condition of Vermont’s waterways harms the State’s economy and way of life. Restoring them requires the State to raise sufficient funds and use them efficiently on appropriate cleanup projects and initiatives. In my June column, I explained that, after four years of consideration, the legislature agreed to a dedicated long-term funding source for water cleanup efforts. I now explain how the legislature has addressed implementing, administering, and funding clean water projects.
For years, Vermont has been confronting the growing threat to Lake Champlain from pollution, primarily too much phosphorous. This nutrient stimulates excessive growth of algae in the Lake, which poses a public health hazard and harms recreational uses, aesthetic enjoyment, and the Lake’s wildlife. Phosphorus comes from a variety of sources. It spills into the Lake from farm fields and barnyards, where it is a product of fertilizers such as manure. It also comes from eroding streambanks, stormwater runoff from developed areas including roads and parking lots, stormwater runoff from forested lands, and wastewater discharges.

In 2015, the legislature took a major step in addressing this ongoing problem when it passed Act 64, Vermont’s Clean Water Act. The law was intended to help the State meet its obligations under the federal Clean Water Act, particularly to satisfy restrictions known as a Total Maximum Daily Load (TMDL). The TMDL caps the amount of phosphorous allowed to enter twelve different segments of Lake Champlain.

To meet these caps, Act 64 modifies existing regulatory programs and creates new ones. These programs require entities to obtain permits from the Agency of Natural Resources (ANR) or the Agency of Agriculture, Food and Markets for a variety of activities that may discharge pollutants into the State’s waterways. To obtain a required permit, an entity may have to implement and maintain best management practices such as building a stormwater retention basin, which treats stormwater runoff by emulating the water-treatment provided by natural watersheds.

The legislature recognized that such practices required by regulatory programs would not reduce pollution sufficiently to meet the State’s water quality standards. Voluntary, or “non-regulatory,” projects were needed as well. Thus Act 64 amended the statutory cleanup requirements, requiring non-regulatory reduction strategies. These could include restoring wetlands, reforesting buffers along streams, reducing development in floodplains, and assisting with practical and cost-effective management practices for stormwater control from construction, redevelopment, or expansion of impervious surface that does not require a permit. To encourage nonprofit organizations, landowners, municipalities, and other entities to undertake such projects, the Act established a Vermont Clean Water Fund to provide resources to both required regulatory and voluntary projects.

During the 2019 Session, the legislature determined that oversight of voluntary projects would be improved by using a regional watershed-based implementation system for them. It passed Act 76, which directs ANR to designate “clean water service providers” for each impaired water basin. The designated entities will likely be regional planning commissions, natural resource conservation districts, or local clean water associations. The providers will approve, implement, administer, and oversee clean water projects at the local level when the project is not required under a regulatory program. Act 76 requires ANR to assign a provider for each of the Lake Champlain basins by November 1, 2020. There are six Lake Champlain basins – areas of South Burlington are within either the Winooski River Basin or the Northern Lake Champlain Basin.

To help direct the providers’ oversight, ANR will establish the amount of pollution reduction that each provider will be responsible for achieving. By November 1, 2021, ANR will establish a methodology for determining the cost per unit of pollution reduction for clean water projects in the Lake Champlain basins. This will help the clean water service providers ensure that they are reducing pollution in the most efficient way. They will consider the costs and benefits of proposed projects’ phosphorus reduction as they weigh which projects to fund. The providers will report annually to ANR regarding implementation of clean water projects and compliance with their pollution-reduction goals.

This new service delivery model will be integral to the State meeting its clean water obligations for Lake Champlain.

 

Access to Justice for Victims of Childhood Sexual Abuse

One of the Judiciary Committee’s major accomplishments this year was eliminating the statute of limitations for civil lawsuits based on childhood sexual abuse. The statute of limitations that had been on the books denied access to justice for some victims of such abuse and enabled some abusers to avoid liability.

Sexual abuse of a child often leads to depression, post traumatic stress disorder, alcohol and opioid abuse, and many other health problems. Mental health experts categorize it as an “adverse childhood experience” that can lead to years of negative impact on the victim. However, victims of childhood sexual abuse often do not disclose the abuse or seek legal remedies until long after it occurred. They may not do so because the resulting psychological and emotional damage may not manifest itself until adulthood, they are ashamed of the abuse and keep it secret or repress the memory of the abuse, or they are initially reluctant to sue an abuser who was someone the victim trusted or someone in a position of power.

In short, victims may for years be unaware of the damage they suffer due to childhood sexual abuse or may bury the abuse. But they may eventually come forward. The average age for disclosure of childhood sexual abuse is 52 years old. If there is a restrictive statute of limitations, barring claims after just a few years, delayed disclosure can prohibit a victim from seeking justice in a courtroom.

Vermont law had provided that a victim could bring a civil lawsuit for childhood sexual abuse within six years after the abuse. Alternatively, the victim could bring a civil lawsuit within six years after the victim had “discovered” that an injury or condition was caused by the abuse. This is called the discovery rule. It extended the time within which a victim of childhood sexual abuse could bring a civil lawsuit against an abuser if the victim did not connect an injury with the abuse until long after the abuse occurred.

But, as the Judiciary Committee learned, there were problems with the discovery rule. Even though it extended the time to sue, it still imposed an unnecessary barrier to a victim’s ability to seek justice. Under the discovery rule, victims have to prove the point in time when they learned that their injuries were caused by previous abuse. There was no rational reason to place this burden on victims. The more important point in time is when victims are psychologically ready and able to pursue relief in a court of law.

Because of the drawbacks of the statute of limitations for lawsuits based on childhood sexual abuse, the legislature passed and the Governor signed Act 37 (H.330), which eliminates the statute of limitations for such lawsuits. A victim is now able to sue his or her abuser at any time, when ready to do so. The law also provides that the elimination of the statute of limitations for claims of childhood sexual abuse applies retroactively. That means that if a victim’s claim was barred by the previous statute of limitations, the victim is now able to bring the claim.

A victim of childhood sexual abuse can also make a claim against an entity that employed, supervised, or had responsibility for the person allegedly committing the sexual abuse if that entity failed to exercise reasonable care to prevent the abuse. This law eliminates the statute of limitations for that claim as well.

Eliminating the statute of limitations to open the courthouse doors to adult survivors of childhood sexual abuse will shift the cost of abuse from the victims to the abusers, provide an additional deterrent to this conduct, and identify hidden child predators.

Funding Water Quality Improvement

Clean water is essential to Vermonters’ health, economy, and way of life. It is important to the State’s ecology, tourism industry, drinking water, and property values. But right now over 350 Vermont lakes, ponds, rivers, and streams have unsatisfactory water quality. The legislature has sought to address this complex issue over the past three Bienniums.

The Vermont Clean Water Act (Act 64) of 2015 was an important step in addressing water pollution statewide and meeting the State’s legal obligations under the federal Clean Water Act. Act 64 did not, however, include a necessary element for the successful implementation of the Vermont Clean Water Act: a long-term and stable funding source for the Clean Water Fund.

The State Treasurer, in a Clean Water Report submitted in January 2017, estimated that it will cost $2.3 billion over 20 years to achieve compliance with water quality requirements. The Treasurer projected that revenue from current sources available for water quality improvement over that period would be approximately $1.06 billion, leaving a 20-year total funding gap of $1.3 billion. To fill this gap, the Treasurer recommended that the State raise $25 million in additional revenues per year to dedicate to water quality. The gap in funding would initially be filled through bonded debt. The Treasurer evaluated a host of other revenue options to meet the funding needs starting in fiscal year 2020.

Based in part on the Treasurer’s report, the legislature in 2017 established a working group on water quality funding to develop draft legislation by December 2017 to implement an equitable and effective long-term funding source to support clean water efforts. The Working Group unfortunately failed to recommend a long-term funding method and instead proposed that the legislature continue to rely on government bonding for the next five years.

Recognizing that relying on bonding is not a sustainable long-term funding solution, the legislature made incremental progress last Biennium on identifying other revenues for the Clean Water Fund. It decided to continue a property transfer surcharge that was a component of Act 64 and to use unclaimed deposits on returnable beverage containers (called escheats). These sources of funds were still not sufficient, however, to cover the shortfall in necessary funding.

This year, the legislature reached agreement on an additional dedicated long-term funding source, which the Governor is expected to accept. The legislature decided to allocate 6% of the existing rooms and meals tax to the Clean Water Fund, resulting in $7.5 million in the upcoming fiscal year and almost $12 million annually thereafter. The tax is not being raised, but rather being reallocated. With these appropriations, along with funding included in the Capital Bill (bonded debt), the total available for clean water will be $50 million for fiscal year 2020 and $55 million per year thereafter.

These funding sources are not necessarily the revenue streams that I would have preferred to fund water quality improvements. I would have favored a revenue source that would promote mitigation (in other words, one that would encourage positive or discourage negative behavior) and would have a more direct relationship with water quality. An excise tax on fertilizers (reflecting the impact of phosphorous runoff) or a per-parcel fee (taking into account the impact of impervious surfaces on stormwater runoff) would have been more apt. Nevertheless, I did support the proposed solution because it relies on identified, dedicated and sustainable funding streams that the State can count on to protect this vital resource.

End of Session Report

Cleaning Up Vermont’s Waterways

Increasingly severe storms resulting from climate change are harming Vermont’s homes, farms, and businesses. Stormwaters scour unprotected topsoils, sending sediment down rivers and streams and into our lakes. That sediment feeds algae blooms and lowers water quality, threatening the survival of the fish and wildlife that depend on clean water. Left unchecked, stormwater reduces access to clean water and water recreation for Vermonters and lowers not only the market value of properties bordering water but also the value of grand lists for the towns in which those properties are located.

The legislature passed S.96, which would create a new way to allocate clean water funding. Prioritizing investment in clean water infrastructure incorporates climate change resilience in bridges, roads, and riparian barriers along the banks of our rivers and streams.

Clean water building projects mean economic growth measured in jobs and in the positive ripple effects on the economy that those jobs create. Clean water building projects mean farmers can prevent phosphorus and nutrient run-off into streams, rivers, and lakes. Clean water building projects mean Vermont can make progress on its path to satisfying its agreement with the Environmental Protection Agency to reduce phosphorus runoff into all of the basin’s waters.

Soil health and fertility also ties directly to the cleanup of Lake Champlain. When soil is full of biomatter, it acts like a sponge. Water does not “run off,” but instead it remains and generates growth. This describes regenerative farming. Furthermore, healthy soils and what they support (crops and pasture, forests and wetlands) pull out far more CO2 than sickly soil or parking lots.

The legislature passed S.160, which will jumpstart the pioneering work being done on food system strategies, ecosystem services, and carbon sequestration. Another bill codifies three healthy soil initiatives: the Vermont Environmental Stewardship Program, the Conservation Reserve Enhancement Program, and the Agriculture Environmental Management Program.

After many years of work and smaller incremental successes, the legislature also finally established a dedicated long-term funding source for the Clean Water Fund. We allocated 6% of the existing rooms and meals tax to the Fund, resulting in $7.5 million in the upcoming fiscal year and almost $12 million thereafter.

The rooms and meals tax, the property tax surcharge, and the escheats (unclaimed deposits), will all go into the Clean Water Fund and will be distributed to projects that reduce the most pollution for our investment. With appropriations through the Capital Bill, the Transportation Bill, and General Fund, the total available for clean water will be $50 million for fiscal year 2020 and $55 million per year thereafter.

Encouraging Electric Vehicles

The transportation bill (H.529) passed by the legislature includes a pilot program to help Vermont take a small step toward reducing greenhouse gas emissions and reducing the $800 million Vermonters spend on fossil fuels imported from out of state for transportation each year. Only about 3,000 plug-in Electric Vehicles are registered in Vermont today. Knowing that our Comprehensive Energy Plan looks to have 45,000 EV’s registered by 2025, this program would offer low to moderate income households a $2,500 incentive (or more for lower income households) toward the purchase or lease of a new or used plug-in EV. Also, this coming year, the Agency of Transportation has the goal of ensuring that there is a Level 3 “fast-charge” station within 30 miles of every Vermonter.

Banning Single-Use Disposable Products

The Governor signed S.113 into law, which bans some single-use disposable products, including single-use carryout plastic bags at point of sale (the plastic bags at retail and grocery stores’ checkout stations), single-use plastic straws (although establishments may offer plastic straws upon request), single-use plastic stirrers, and expanded polystyrene food service products.

The bill aims to help businesses by creating one consistent statewide program, rather than having numerous, municipal-based initiatives across the State, each with a different set of requirements. It will mitigate the harmful effects of these single-use products on the environment and recycling facilities, while relieving pressure on Vermont’s sole landfill to manage the disposition of single-use products. Overtime, this will save all Vermonters money by deferring the need to build additional landfill capacity in the future.

Regulating Toxic Substances in Drinking and Surface Waters

The legislature passed S.49 to regulate polyflouroalkyl substances in drinking and surface waters. Perflouroalkyl and ployflouralkyl substances (PFAS) are used in a wide variety of industrial and commercial processes and are found in everyday products such as non-stick cookware, water- and stain-repellent clothing, stain-resistant fabrics, carpets, cosmetics, firefighting foams, and other products that resist grease, water, and oil. These products are bio-accumulative, highly mobile in water, highly resistant to degradation, and toxic to humans in very small concentrations. Manufacturers continue to produce these chemicals and to produce thousands of alternative PFAS that are likely to pose significant health risks.

PFAS have been found in more than 400 drinking water wells in Bennington County, in private and public water supplies near the Southern Vermont Airport in Clarendon, and in a drinking water supply near Shaftsbury Landfill. The bill would establish an interim Maximum Contaminant Level (MCL) for five PFAS compounds, set deadlines for the Agency of Natural Resources (ANR) to finalize MCL and surface water standards for these compounds, and require PFAS testing of public water systems. The bill also establishes a public process for ANR to evaluate regulation of PFAS compounds in drinking water, complete a statewide evaluation of sources of PFAS contamination, and evaluate treatment options for PFAS in landfill leachate.

Protecting Pollinators

In recent years, the legislature has seen concern over the health of our pollinators, which include domesticated honeybees as well as our native pollinators like bumblebees, wasps, butterflies, and a host of other species including birds and bats. Pollinators serve a very important function, helping to produce the food we eat. It is estimated that we have lost 40% of the insect population in recent years, and one theory is that it is due to more prolific use of chemical pesticides including neonicotinoids.

The Governor signed H.205, an act that requires regulation of the sale and application of neonicotinoid pesticides in order to protect pollinator populations. The law also requires the Secretary of Agriculture, Food and Markets to register, as a restricted-use pesticide, any neonicotinoid pesticide labeled as approved for outdoor use that is distributed, sold, or offered for sale in the State. The increased registration fee for a neonicotinoid pesticide will be used to provide educational services, technical assistance, and increased inspection services related to neonicotinoid pesticides and pollinator health.

Another goal of H.205 is to educate beekeepers about the negative effects of viruses spread by Varroa mites. When they register their hives, beekeepers will be asked to report a current Varroa mite and pest mitigation plan for each registered hive.

The Agency of Agriculture, Food and Markets is tasked with establishing a training program that will address such subjects as bee health, Varroa mite identification and control, identification of common diseases or pests, and proper maintenance of hives. A person who completes the course will be awarded a Vermont Beekeeper Educational Program Certificate.

Increasing Renewable Energy

Increasing the proportion of electricity produced by renewable generation is good for Vermont.  The House passed two bills this year to build this capacity. S.95, which awaits the Governor’s signature, doubles the cap on net-metering projects as it applies to school districts. S.95 also sets a timeline for approval of new net-metering applications. H.133, which the Governor has signed into law, updates how small hydro projects get paid, so they receive a fair price. H.133 also adds energy storage systems to the types of electric facilities covered by grid planning and coordination.

Integrating renewable energy into our electric system insulates our economy from fossil-fuel price volatility. It provides more support jobs and keeps more of our utility expenditures in our local economy. It reduces our contribution to climate change by lowering greenhouse gas emissions. And it enhances our ability to weather the more frequent and more intense storms caused by climate change.

Our Environmental Commitment

Altogether, the FY2020 budget makes a number of investments to address environmental challenges like climate change. This year’s budget includes:

  • $2.8 million for electric vehicles and charging stations;
  • $38 million for public transit subsidies and park & ride facilities;
  • $35 million for rail subsidies and upgrades;
  • $16 million for home weatherization assistance for Vermonters of low and moderate income;
  • $500,000 for conservation of significant lands for forest integrity and watershed protection;
  • $50 million for clean water efforts;
  • Funding for working groups on Forest Carbon Sequestration; Carbon Emissions Reduction; Public Transit Ridership; a Transportation & Climate Initiative; the creation of an All Fuels Energy Efficiency Program; Building Energy Labeling; and Ecosystems Services.
  • The total budgetary investment in our environment, including existing and new funding, tallies $167 million.

JUDICIARY COMMITTEE ACCOMPLISHMENTS

Statute of Limitations Reform

Sexual abuse of a child often leads to depression, PTSD, alcohol and opioid abuse, and many other health problems. It is an Adverse Childhood Experience that can lead to years of negative impact on the victim. However, victims of childhood sexual abuse often do not disclose the abuse until long after it occurred. Victims are often ashamed of the abuse and keep it secret. They may suffer severe psychological and emotional damage that may not manifest itself until adulthood. Others develop an arsenal of defense mechanisms and may repress memory of the abuse for an extended period of time. In addition, the abuser may be someone the victim trusted or someone in a position of power. These associations can lead victims not to disclose their victimization promptly, if at all. The average age for disclosure of childhood sexual abuse is 52 years old.

Victims of childhood sexual abuse may seek monetary damages from their abuser in a civil action. Under current Vermont law, a victim can bring a civil lawsuit for childhood sexual abuse within six years after the abuse or within six years after the victim has “discovered” that an injury or condition was caused by the abuse. If there is a restrictive statute of limitations, delayed disclosure can prohibit a victim from seeking justice in a courtroom.

The Governor signed H.330, which eliminates the statute of limitations for bringing claims of childhood sexual abuse. Victims would be able to sue their abusers at any time, when they are ready to do so. The law provides that the elimination of the statute of limitations for claims of childhood sexual abuse applies retroactively. That means if a victim’s claim had been barred by the previous statute of limitations, the victim will now be able to bring the claim.

A victim of childhood sexual abuse can also make a claim against an entity that employed, supervised, or had responsibility for the person allegedly committing the sexual abuse if that entity failed to exercise reasonable care to prevent the abuse. This bill eliminates the statute of limitations for that claim as well.

Medical Monitoring

Recognizing the need to protect Vermonters from the impact of toxic chemicals, the Vermont legislature enacted Act 154 in 2016. The law directed the Agency of Natural Resources to convene a working group to address the use and regulation of toxic chemicals. In January 2017, the working group recommended that the legislature should enable individuals to recover the expense of medical monitoring for diseases when they have been exposed to toxic substances due to another’s wrongful conduct.

Medical monitoring is a program designed by experts in the field of public health and medicine. It includes screening and ongoing observation to detect the symptoms of latent diseases linked to exposure to a toxic substance. Monitoring allows for the earliest detection and treatment of these latent diseases. Similar to early detection efforts such as mammograms and colonoscopies, this program ensures the best possible health outcomes at the least cost. It ensures that those harmed are screened and referred for medical care at the earliest possible time when effective treatment can improve outcomes.

Both the House and the Senate passed S.37, which would ensure that the cost of medical monitoring is not borne by the general public or the harmed individuals, as currently is the case. Rather, that cost would be paid by the industrial entity that caused the need for incurring those health costs.

It would not be easy for individuals to prove that they are entitled to the remedy of medical monitoring. Individuals will have to convince a judge or jury that a company wrongfully exposed them to a known toxic substance; that the exposure to the toxic chemical increases their risk of developing a latent disease; that the exposure was at a level that could credibly trigger the need for medical monitoring; and that there are diagnostic tests that can detect the latent disease. While it sets a high bar of proof, the bill would provide a path for Vermonters to receive a remedy that is not currently available under Vermont law. It is not clear whether the Governor will veto this bill due to concerns expressed by businesses.

Firearm Violence Prevention

The presence of a firearm dangerously compounds the risk of impulsive acts of violence, especially suicide. Waiting periods create an important cooling-off window for gun purchasers to reconsider their intentions, which can lead to a change of heart and a saved life. In addition, waiting periods provide additional time for the completion of a thorough background check. S.169, passed by both the House and Senate, would establish a 24-hour waiting period for the purchase of handguns.

Many suicide attempts occur with little planning during a short-term crisis and those who attempt suicide impulsively are more likely to choose a violent method. Studies confirm that most suicide survivors contemplated their actions for only a brief period of time – often less than 24 hours – before making a suicide attempt. Firearms are the most lethal means of suicide, with over 85% of firearm suicide attempts resulting in death. This fact is especially important because almost all people who survive a suicide attempt go on to live out their lives and do not subsequently die by suicide.

In addition to helping prevent suicides, this waiting period may also help prevent homicides. Firearms are the most frequently-used weapons in domestic homicides and over half of all homicides in Vermont are domestic violence-related. A cooling-off period can help prevent impulsive violence in domestic disputes. A 2017 study in the Proceedings of the National Academy of Science estimated that waiting periods for handgun purchases reduce gun homicides by roughly 17% and gun suicides by 7 to 11%.

A waiting period for handgun purchases would also help in combatting the drug trade. Currently, traffickers bring drugs into Vermont and exchange them for handguns, some purchased by Vermont residents near the time of the transaction. The waiting period would be an obstacle to such a deal and would make Vermont less attractive to those trading drugs for guns.

In the end, however, it is the logic of a waiting period that provides the strongest rationale for the passage of S.169. Lethal harm to oneself or another can occur when an impulsive act is combined with access to a lethal weapon. A waiting period provides time to cool off, to let the heat of the moment pass, to distance impulsivity from the ability to acquire a handgun.

In addition to providing a cooling-off period, this waiting period addresses a gap in the law, known as “default proceed” or the Charleston Loophole. Federal law allows a dealer to deliver a gun to a purchaser as soon as a background check is completed, which usually takes only a few minutes. Sometimes, however, a background check may not be completed instantly. In such a situation, after three business days have passed, the dealer may still provide the firearm to the purchaser, even if a background check is incomplete. S.169 would close this gap. The 24-hour waiting period would commence upon completion of the background check, including in those instances when law enforcement needs additional time to do its work, such as, for example, determining if the purchaser is subject to a domestic violence restraining order.

S.169 also eases restrictions on the transfer and use of large capacity magazines. Last year, the legislature passed Act 94, which placed restrictions on high-capacity magazines. The law, however, allowed large capacity magazines to be transported into Vermont for use in shooting competitions. But under current law, that authority will sunset in June of this year. S.169 would allow the continuation of the transport of these devices for organized shooting competitions. Without the provisions in S.169, such shooting competitions in Vermont would effectively come to an end.

OTHER STATE HOUSE ACCOMPLISHMENTS

Multi-Bill Effort to Reduce Vaping and Tobacco Use Among Youth

Despite trendlines of decreasing tobacco use in recent decades, the presence of vaping and e-cigarettes has created a new crisis point. From 2017 to 2018, e-cigarette use among high school and middle school students rose 78% and 48%, respectively. That amounted to the biggest one-year spike of any substance in nearly 50 years and prompted the U.S. Surgeon General to declare a public health crisis.

The House Human Services Committee spent many hours this year developing strategies to reduce the number of young Vermonters who use vaping and tobacco products. One bill (S.86), signed into law by the Governor, raises the legal age for buying and using cigarettes, electronic cigarettes, and other tobacco products from 18 to 21 years of age. S.86 is part of a three-pronged strategy this legislative session to make it more difficult for youth to obtain and afford tobacco products. Earlier in the session, legislators overwhelmingly approved another bill (H.26) ending Internet sales of e-cigarettes, and a third (H.47) placing a 92 percent excise tax on them. The Governor signed these into law as well.

Reproductive Liberty for Vermonters

The Vermont Legislature approached reproductive liberty on two separate fronts this year: a constitutional amendment and a new statute. For more than 40 years, Vermonters have relied on protections offered by U.S. Supreme Court case law to support personal autonomy in reproductive health decisions, and citizens of the Green Mountain State have not chosen to limit or restrict those protections. Vermonters have long recognized that decisions related to reproductive health care and abortion are deeply personal and private, and are best left to a woman and her doctor.

The legislature approved Proposition 5, a Vermont constitutional amendment that would protect personal reproductive autonomy. The lack of a definitive enumeration of reproductive liberty in Vermont’s Constitution, the threats to Roe v. Wade from a very conservative U.S. Supreme Court, and the cloud of multi-state efforts to erode reproductive autonomy all build a strong case for Proposition 5.

The proposed constitutional amendment now awaits consideration by the 2021-2022 legislature. If it passes both chambers again during the next biennium, Vermonters will vote in 2022 on whether to add the language in Proposition 5 to the State Constitution.

Earlier this year, the House passed H.57 to ensure that women’s access to abortion continues to remain unconstrained by law with a strong vote of 106-37; the Senate approved H.57 by a vote of 24-6. The Governor has said he will not veto the legislation, which will become law without his signature. The bill and the constitutional amendment go hand-in-hand to guarantee Vermonters’ access to reproductive liberty both in statute and in the Vermont Constitution.

Child Care Assistance for Vermont Families

The Child Care and Early Learning bill (formerly H.531) is a $7.5 million State investment that aims to make child care more accessible and affordable for Vermont families, as well as to open up new child care spaces statewide. The legislation also seeks to support the retention and professional development of child care workers.

The bill adjusts the market rates and benefit levels for the Child Care Financial Assistance Program to ensure that families whose gross income is up to 100 percent of current federal poverty guidelines receive 100 percent assistance. The new eligibility guidelines expand the financial subsidy to a wider swath of middle-income families too.

In addition, the bill seeks to retain child care providers working in the field, many of whom struggle to earn livable wages while paying off sizable college loans. It also provides internship compensation and scholarship assistance to support current child care workers (in both center- and home-based care), as well as attract new workers to the early learning field.

Economic Development

We want to create an economy that works for all Vermonters, not just a select few, an economy where our workers can find well-paying jobs and a secure future, with success at any age. To create a strong Vermont economy, the House Committee on Commerce and Economic Development focused on the areas of consumer protection, workforce development, and economic development.

This year’s economic development bill (S.162) supports a range of programming. It will promote training opportunities for small companies, create weatherization training programs, create a Career Technical Education Program for robotics training, decrease barriers for new American citizens to enter the workforce, and provide advancement grants for additional adult training and workforce education. The bill will also help employers hire workers with barriers to employment, fund social media marketing campaigns, and provide relocation support.

In Vermont, every industry faces workforce needs, especially in health care, construction, hospitality, transportation, and advanced manufacturing. We want to see more Vermonters employed in meaningful skilled jobs through completing apprenticeships, certificates, and associate degrees. The legislature seeks to help employers hire more employees and help employees get hired in good-paying jobs that match their skills.

Creating an Education System for All of Us

The House is committed to eliminating 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. With that goal in mind, one of the first proposals the House Education Committee took up this year was the ethnic studies bill (H.3). The bill passed both the House and Senate by unanimous roll-call votes in February and was signed into law as Act 1. The law aims to identify structural racism in Vermont schools, reduce bias, and build a culture of equity by teaching students the history of all of us, including ethnic and social groups that historically have been marginalized, harassed, discriminated against, or persecuted.

Act 1 establishes a working group that will review Vermont’s education standards to determine if they meet those goals. By June 2021, the task force will recommend to the State Board of Education any updated or new standards. Each school will then be guided by these standards in reviewing—and, if necessary, revamping—its classroom practices, curriculum, and extracurricular programs.

Act 1 will help Vermont students better understand the history, contributions and perspectives of people whose stories are often not told in textbooks. It will promote cultural competency and critical thinking. It will allow students to safely explore questions of racial, social, and gender identity. It will reduce hatred and bias, making our schools safer. And it will prepare our young people to work, live, and thrive in a world that is increasingly diverse.

Broadband Build Out

Access to reliable, affordable high-speed internet service is essential for full participation in modern society. Yet roughly 17,000 Vermont households lack access to even the most basic internet service. Another 50,000 homes and businesses struggle with connection speeds that do not support 21st Century tasks. These unserved and underserved households are typically in the most rural parts of the State, where the costs of connecting to broadband internet are the highest.

This year the Vermont House passed H.513 to get high-speed internet service to the farthest corners of our State. The bill empowers local municipalities to determine the connectivity solutions most appropriate for their communities and provides financing programs to get local initiatives off the ground. It funds a technical specialist to support local groups. It explores alternatives such as allowing electric utilities to provide internet service using existing infrastructure. It streamlines procedures so providers can build broadband access more quickly and cost-effectively to our most rural communities.

A Vermont that works for everyone, regardless of where they live, must have high-speed internet access in every corner of the State. While change will not happen overnight, this year we are finally taking concrete steps to build on grassroots success stories, create viable business plans, facilitate start-up financing, and get real results.

            Making Investments in a Strong

Vermont Future

The legislature passed a balanced budget for fiscal year 2020, which goes into effect on July 1, 2019. The $6.1 billion budget represents a 2.6% increase over the previous year.

The budget is a blueprint representing our priorities and shared Vermont values. It includes significant investments in the health of our natural environment, the development of our workforce, the growth of our economy, and the needs of vulnerable Vermonters. It also makes payments towards long-term liabilities.    Highlights include:

  • $1.6 million for small business support in agriculture, forestry, and other working lands enterprises;
  • $2.8 million in tax credits for redevelopment of Designated Downtowns and Village Centers;
  • $1.3 million for regional development corporation block grants;
  • $1.2 million in matching funds to businesses for training incumbent workers to gain skills resulting in higher salaries at those same businesses;
  • $7.4 million, added to a $5.8 million base, plus $1.6 million in one-time funds for child care, supporting families and providers, as well as workforce incentive pilots and system investments;
  • $1.3 million added to master grant funding for Parent Child Centers in support of services to young families;
  • $1.5 million for appropriate community placements for persons with complex mental health challenges;
  • $2.5 million added to provide a benefit increase in the Reach-Up Program;
  • An additional $5.2 million to designated agencies across the entire system of mental health and developmental services;
  • An additional $2.1 million for a 2% increase for home and community service providers in Choices for Care; and
  • An additional $445,000 for court diversion plus a 5% increase for court security services.

Keeping Our Promises

There are three State retirement systems: the Vermont State Teachers’ Retirement System (VSTRS), the Vermont State Employees Retirement System (VSERS), and the Vermont Municipal Employees Retirement System (VMERS). They cover a substantial number of Vermonters.

Currently, VMERS is funded at 82.2%, VSERS at 70.7%, and VSTRS at 55.2% of the levels needed to meet the State’s projected pension liability. All three systems were adversely affected by the 2007 recession, and have been recovering. The status of VSTRS, however, reflects the decision by policymakers from 1991 through 2006 to use funds for other purposes that should have been used to cover the actuarially required annual contribution. Since 2007, when a 30-year catch-up plan was established, contribution has been no less than 100%. This year, as an example, State policymakers committed $120 million to the system, with the understanding that an average of $150 million will be required each of the next twenty years.

This catch-up plan requires significant investments, pitting pension obligations against current needs in other parts of the budget. Some would like to see the State go in an entirely different direction, changing from the long-existing defined benefit to a defined contribution approach, similar to an IRA plan. This idea has not gained traction. The State made a commitment to these three classes of employees — it is a contract, and a promise, not to be broken. Throughout the years, employees have made their required contributions. They have agreed to increases in employee contributions and a raise in the age for normal retirement, among other changes. These compromises, together with the use of one-time revenue to bump up the financial underpinnings of VSTRS and VSERS, are currently on target to save taxpayers approximately $1.3 billion in interest payments by 2038.

Adequate and reliable income in retirement helps our economy. According to the State Treasurer, retiree expenditures attributable to the pension benefits support 2,809 jobs for Vermonters. Additionally, the stability of the pension is key to reduced elderly poverty, with fewer individuals needing to rely on state and public assistance.

 

 

 

Report for S.169 – a bill to establish waiting periods

The following is the report that I delivered to the House on S.169, which addresses procedures related to firearms and establishes a 24-hour waiting period for the purchase of handguns.

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S.169 amends certain provisions of last year’s Act 94 related to large capacity ammunition feeding devices, which I will refer to as large capacity magazines, and background checks.  It also clarifies the implementation of the extreme risk protection orders in last year’s Act 97. Finally, it creates a 24-hour waiting period for the purchase of handguns.

I will first discuss the waiting period and then turn to the other provisions of the bill.

The presence of a firearm dangerously compounds the risk of impulsive acts of violence, especially suicide.  Waiting periods create an important cooling off window for gun purchasers to reconsider their intentions, which can lead to a change of heart and a saved life.  In addition, waiting periods provide additional time for the completion of a thorough background check.

S.169 would establish a 24-hour waiting period for the purchase of handguns. In urging this body to concur with the Senate bill, I will discuss five rationales for supporting this bill: the stories of Vermonters, expert testimony, data, logic, and compromise.

By stories, I mean the real-life accounts of family, friends, and neighbors lost to firearm violence. In December Andrew Black committed suicide in Essex with a handgun that he had purchased four hours earlier. Rob Black explained to the House Judiciary Committee that his son had shown no signs of depression.  A breakup with his girlfriend triggered the impulsive act of purchasing a handgun and, shortly after, using it to end his life. A waiting period could have interrupted this chain of events. Others testified to the traumatic effect of suicide on those who knew the victim and live with the doubt and questions as to what they could have done differently to help their friend or family member avoid that fate.

As for expert testimony, the Judiciary Committee heard from a specialist in pediatric critical care who is also a member of the Community Violence Prevention Task Force. She testified that many suicide attempts occur with little planning during a short-term crisis and that those who attempt suicide impulsively are more likely to choose a violent method.  Studies confirm that most suicide survivors contemplated their actions for only a brief period of time – often less than 24 hours – before making a suicide attempt.

Firearms are the most lethal means of suicide, she explained, with over 85% of firearm suicide attempts resulting in death. This fact is especially important because almost all people who survive a suicide attempt go on to live out their lives and do not subsequently die by suicide.  Contrary to common belief, the vast majority of suicide survivors recover and do not remain suicidal.

Based on this witness’s experience and her understanding of the scientific studies, she concluded that restrictions on highly lethal means would lead to fewer suicide deaths. A waiting period for purchasing handguns is such a restriction. National and State physician organizations support this conclusion.  The American Academy of Pediatrics, the American College of Physicians, the American Medical Association, the Vermont Chapter of the American Academy of Pediatrics, and the Vermont Medical Society all support the passage of a waiting period.

In addition to helping prevent suicides, this waiting period may also help prevent homicides.  A representative of the Vermont Network Against Domestic and Sexual Violence testified that firearms are the most frequently-used weapons in domestic homicides and that over half of all homicides in Vermont are domestic violence-related. A cooling off period can help prevent impulsive violence in domestic disputes.

Some argue that victims in domestic abuse situations need handguns immediately for selfdefense.  But handguns are not a panacea in those situations.  The witness from the Network explained that firearms do not increase victim safety and are rarely used in self-defense by victims of domestic violence – for every one time a woman used a handgun to kill someone in self-defense, 83 women were murdered with a firearm by their partner.  She concluded that S.169 would reduce the likelihood of these impulsive acts of violence.

Representatives of the Attorney General’s Office and of the Department of State’s Attorneys and Sheriffs testified, supporting the bill as a positive step for public safety.  They also noted that having a waiting period for handgun purchases would help in combatting the drug trade.  Currently, traffickers bring drugs into Vermont and exchange them for handguns, some that are purchased by Vermont residents near the time of the transaction. The waiting period would be an obstacle to such a deal.  It would make Vermont less attractive to those trading drugs for guns.

Data also supports S.169.  Studies published in respected scientific journals support the conclusion that a waiting period will reduce firearm violence. A 2015 study in the American Journal of Public Health published research showing that states with waiting period laws had 51% fewer firearm suicides and a 27% lower overall suicide rate than states without such laws. When South Dakota repealed its 48-hour waiting period for handgun purchases in 2009, overall suicides the following year increased by 7.6% compared with a 3.3% increase for the United States in general.

Another Study from 2017 in the Proceedings of the National Academy of Science concluded that a cooling off period significantly reduces the incidence of gun violence.  The authors estimated that waiting periods on handguns reduce gun homicides by roughly 17% and gun suicides by 7 to 11%.

In the end, however, it is the logic of a waiting period that provides the strongest rationale for the passage of S.169.  Lethal harm to oneself or another can occur when an impulsive act is combined with accessibility to a lethal weapon.  A waiting period provides time to cool off, to let the heat of the moment pass, to distance impulsivity from the ability to acquire a handgun.

I’ve talked about stories, expert testimony, data, and logic.  Another reason to support S.169 is that it reflects a compromise between proponents and opponents of firearm restrictions. The bill eases a number of restrictions on the transfer and use of large capacity magazines. Under current law, individuals may not transfer large capacity magazines in Vermont.  S.169 provides that individuals who own large capacity magazines may transfer them to immediate family members in a will.

In addition, last year’s law allowed large capacity magazines to be transported into Vermont for use in shooting competitions.  But under current law, that authority will sunset in June of this year.  S.169 would allow the continuation of the transport of these devices for organized shooting competitions. Without the provisions in S.169, such shooting competitions in Vermont would effectively come to an end.

Furthermore, the bill broadens the definition of immediate family members who do not need to obtain a background check for private sales or transfers between immediate family members.  In short, these provisions reduce certain restrictions on firearm owners.

The terms of the waiting period itself also represent a compromise.  Proponents of a waiting period urged the legislature to have a longer waiting period – either 48 or 72 hours.  They also wanted the waiting period to extend to all firearms. A 24-hour period for handguns is a compromise that reduces the burden of the waiting period on gun shows while also providing the important interruption of impulsive purchases and impulsive intent to harm oneself or others.

Having the waiting period extend to handguns only will still provide significant benefits.  According to the Department of Justice, Bureau of Justice Statistics, between 1993 and 2011, handguns were used in from 70 to 84 percent of firearm-related crimes. A study of firearm fatalities conducted by Vermont Public Radio found that handguns are used in 2/3 of firearm suicides in Vermont.

Section by Section Summary

  1. 169 makes several amendments related to firearms procedures.

Section 1 of the bill deals with large capacity magazines.  Last year, the General Assembly passed Act 94, found at 13 VSA § 4021, which generally prohibits the possession of large capacity magazines – no more than 10 rounds for long guns and no more than 15 rounds for handguns.  There were a number of exceptions to this general prohibition, and Section 1 of this bill concerns those exceptions.

First, subdivision (c)(1)(A) provides that a Vermont resident who lawfully possesses a large capacity magazines may transfer it from one immediate family member to another immediate family member by a lawfully executed will. As provided in Section 2 of the bill described below, the definition of immediate family member is expanded.

Second, in subdivision (d)(1)(B), the prohibition on possession of large capacity magazines does not apply if the device is transferred to or possessed by a Vermont or federal law enforcement officer for legitimate law enforcement purposes. However, law enforcement officers from other states were omitted, so S.169 includes them here.  This subdivision provides that the prohibition does not apply to a large capacity magazines possessed by an out-of-state law enforcement officer who is called into this State to assist a Vermont officer for legitimate law enforcement purposes.

Act 94 also included an exception to the magazine ban for devices transported into Vermont by a resident of another state for a shooting competition. However, this exception was sunsetted, so it expires on July 1, 2019.  S.169 makes three changes to this exception: (1) First, the language is changed slightly from an “established” shooting competition to an “organized” shooting competition, which the sportsmen’s groups indicated more accurately describes the events; (2) Second, the exception is expanded to include Vermonters as well as out of state residents, so Vermonters can possess and use large capacity magazines at the competitions so long as the device was grandfathered in by being lawfully possessed on or before October 1, 2018; (3) and Third, which you have to turn to Section 6 at the end of the bill to see, the sunset on the shooting competition is repealed, which means that possession and use of the magazines at shooting competitions will continue to be permitted in the future.

Section 2 of the bill addresses the background check requirement for firearms purchases, which was also established in Act 94 last year.  Under that provision, background checks were generally required for all firearms transfers, though again there were a number of exceptions.  One of those exceptions applied to transfers between immediate family members.  Section 2 of the bill expands the list of immediate family members to include a parent-in-law, a sibling-in-law, aunt, uncle, niece, and nephew.  As a result, transfers between additional family members can be made without needing a background check.

Section 3 of the bill establishes the new waiting period requirement for hand gun transfers. Under this section, a handgun cannot be transferred until 24 hours after completion of the background check required by federal or state law.

In addition to providing a cooling off period, this waiting period addresses a gap in the law, known as “default proceed” or the Charleston Loophole.  Federal law allows a dealer to deliver a gun to a purchaser as soon as a background check is completed, which usually takes only a few minutes.  Sometimes, however, a background check may not be instantly completed.  In such a situation, after three business days have passed, the dealer may provide the firearm to the purchaser, even if a background check is incomplete.  Each year over 3000 ineligible persons receive firearms through this default provision nationwide.  Dylann Roof was one individual who obtained a firearm without a completed background check, which would have revealed that he was a prohibited person, not allowed to obtain a firearm.  He used that firearm to kill nine people at Emanuel AME Church in Charleston.

Individuals should not be able to skirt the background check by taking advantage of this gap in the law.  S.169 would close this gap.  The 24-hour waiting period would commence upon completion of the background check, including in those instances when law enforcement needs additional time to do its work, such as, for example, determining if the purchaser is subject to a domestic violence restraining order.

Under subsection (c), the waiting period does not apply to a transfer that does not require a background check.  This means that a hand gun may be transferred without a waiting period if one of the exceptions to the background check requirement applies, such as transfers between immediate family members and law enforcement officers, transfers in emergency situations, or temporary loans.

Sections 4 and 5 of the bill concern Vermont’s extreme risk protection order statute that was passed in Act 97 last year. Act 97 established a procedure for a State’s Attorney or the Attorney General to obtain a court order, called an Extreme Risk Protection Order (known as an ERPO).  Such an order temporarily prohibits a person from possessing a dangerous weapon if the court finds that the person’s possession of the weapon poses an extreme risk of harm to the person or to other people. It came to the Senate Judiciary Committee’s attention, however, that some health care providers who would like to provide relevant information to law enforcement officers about potentially dangerous people are unsure if they can do so without violating the privacy provisions of HIPAA, the Health Insurance Portability and Accountability Act of 1996.

When the Senate Judiciary Committee reviewed this issue, it discovered that HIPAA already includes a relevant exception.  Health care providers can disclose information when the provider believes in good faith that disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public. This imminent threat standard is essentially the same as the extreme risk standard that we have in the ERPO law.  Section 4 makes that connection explicit by clarifying that an imminent threat includes circumstances when the health care provider reasonably believes that the patient poses an extreme risk of causing harm to himself or herself or another person by purchasing, possessing, or receiving a dangerous weapon.  Having this language gives health care providers the confidence to let law enforcement officers know when an extreme risk exists.

Section 5 is an attempt to gather information on the use of ERPOs in Vermont. It requires the Court Administrator, with the assistance of the Agency of Human Services, to report data on ERPO use annually to the Senate and House Committees on Judiciary.  The report will include the number of petitions filed and the number of orders issued, the county where the petition was filed, and follow-up information describing whether the order was renewed or terminated and whether the subject of the order was charged with violating it. In addition, the Agency of Human Services is required to include in the reports an analysis of the impact of extreme risk prevention orders on Vermont suicide rates.

As I mentioned earlier, Section 6 repeals the sunset for use of large capacity magazines in organized shooting competitions.

Section 7 provides that the bill takes effect on passage.

We heard from numerous witnesses.  We also held a  public hearing where we heard from 61  community members.

The vote in committee was 7-4-0.