Stewart Ledbetter interviewed me about the impeachment investigation of the Franklin County State’s Attorney and the Franklin County Sheriff. See the interview here.

Vermont’s part-time citizen legislature meets from early January through mid-May. But even when the legislature is not in session, your representative’s work is not done. Off-session committees meet periodically, including the Joint Legislative Justice Oversight Committee and the Judicial Rules Committee on which I serve. Legislators also spend time helping constituents and may be appointed to serve on various study committees. And representatives often engage in informal work including discussions with advocates, other legislators, and legislative counsel (the legislature’s nonpartisan attorneys) to examine pressing issues and possible legislative responses.

It was during one of these meetings that I was recently reminded of the judiciary’s dire need for guardians ad litem, who act as advocates for children involved in court cases. I was on a call discussing a bill that would give children the right to testify in custody cases and the many factors that complicate such a procedure. A judge participating in this call noted that courts may allow a child to testify, but they must assure that allowing such testimony is in the best interest of the child. In addition, if a child is allowed to testify, the court must provide the child with a guardian ad litem.

As explained on the Vermont Judiciary’s website, a judge appoints a guardian ad litem “in every child abuse or child neglect case and sometimes in delinquency and other cases. The [guardian ad litem] makes recommendations to the court for the child’s best interests in and out of court until the case is over.”

Guardians ad litem are community volunteers. Typically, they meet with the child at least once a month; gather information from parents, foster parents, and other people close to the child; regularly communicate with Vermont’s Department for Children and Families and the child’s lawyer; attend all court hearings involving the child; and ensure that the court has all information about the child relevant to the case.

As I learned from the Chief Superior Judge, the courts do not have adequate guardians ad litem right now to be able to appoint one for every child in every case. Despite the courts’ efforts at recruitment, they are unable to meet the children’s needs.

Meanwhile, thousands of Vermont’s children and youth are part of proceedings in the courts’ family divisions. Many of these vulnerable children are victims of abuse or neglect or have been accused of delinquent acts. They may be in foster care while they face uncertainties about their futures. These children need someone to help them understand what is happening in their cases and to make sure their voices are heard. A guardian ad litem fulfills this role.

One does not need any particular education or professional background to be a volunteer guardian ad litem. The time commitment varies depending on the case and one can choose to represent one child or several. The guardian ad litem program is administered through the Court Administrators office and also has regional coordinators to provide support. New guardians attend a three-day training session and are offered ongoing training opportunities. If you are interested in this opportunity to make a profound difference in a child’s life, you can obtain further information and apply to become a guardian ad litem at www.vermontjudiciary.org/programs-and-services/guardian-ad-litem-program.

On the last day of this year’s legislative session, the House passed House Resolution 11, which created a Special Committee on Impeachment Inquiry. The Resolution recognized credible accusations of separate misconduct by Franklin County State’s Attorney John Lavoie and Franklin County Sheriff John Grismore. The Speaker of the House appointed seven representatives to the Special Committee and I was named as Chair.

The Special Committee is not a typical legislative committee. Its task is to investigate sensitive matters and decide whether its findings should lead to the impeachment of one or both of these elected officials. We have heard calls for the Committee to open its work to the public in full, but I am writing to explain that parts of the Committee’s work should not be done in public. Its work is not the equivalent of a civil trial, a criminal trial, or a pre-trial hearing. It is an investigation. The Committee is the equivalent of a prosecutor or a grand jury determining whether to bring an indictment. Such investigations are not done in public.

Investigations such as this one are kept confidential for several good reasons. Most fundamentally, confidentiality is necessary to protect the integrity of the investigation.

While the Committee’s investigation is ongoing, premature disclosure of sensitive information could lead to interference, tampering, or manipulation of evidence. By limiting access to information to those directly involved in the investigation, confidentiality reduces the risk of external influences and helps maintain the integrity of the process.

Confidentiality helps to ensure that Committee members approach the evidence and facts objectively, without being influenced by external factors or public opinion. When sensitive information remains confidential, the Committee can focus on gathering and analyzing evidence impartially. This promotes a fair and thorough investigation, preserving its integrity.

Confidentiality is also essential to safeguard the identities and statements of witnesses who provide crucial information to the Committee. For witnesses, testifying about traumatic events can be emotionally challenging, especially for victims or witnesses who have experienced abuse or other forms of harm. Testifying in a public session with numerous spectators can be intimidating and affect a person’s ability to provide an accurate and honest account of events. Testifying in public session can have significant psychological impacts on individuals involved in sensitive cases such as the ones the Committee is investigating, especially when their personal experiences are recorded and available online, subject to possible copying and rebroadcasting outside of their control.

Allowing witnesses to testify behind closed doors in executive session addresses these concerns.  Witnesses can share their experiences with the Committee without fear of intimidation or retribution. They can express themselves more freely and provide clearer and more reliable testimony. In addition, if assured confidentiality, additional victims or witnesses may be more willing to come forward to offer testimony and evidence. This promotes the flow of accurate and reliable information, enhancing the integrity of the investigation.

The rights of the respondents must also be considered. Preserving confidentiality prevents the unnecessary public exposure of potentially unfounded allegations or unverified information. It safeguards the respondents’ privacy and reputation until a thorough investigation is completed and wrongdoing, if any, is established.

The Special Committee has considered multiple precedents that support going into executive session to conduct parts of its investigation. Other legislative committees with investigatory powers, such as the House Ethics Panel, Sexual Harassment Prevention Panel, and Discrimination Prevention Panel, have even more stringent confidentiality rules and procedures than those for the Special Committee on Impeachment Inquiry. These panels conduct investigations and hear testimony in nonpublic settings, and rarely are the witnesses or the information gathered during those investigations made public.

Additionally, legislatures in Connecticut, South Dakota, and Illinois have recently conducted impeachment investigations. These states as well as the U.S. Congress have procedures requiring confidentiality and have conducted hearings in executive session during their investigations to determine whether to bring articles of impeachment.

Most on point, however, is Vermont’s own impeachment precedent. In 1976, the Vermont House Judiciary Committee held closed-door sessions to hear testimony from witnesses in the investigation that lead to articles of impeachment against Sheriff Mayo.

Chapter 1, Article 6 of the Vermont Constitution provides “that all power being originally inherent in and consequently derived from the people, therefore, all officers of government, whether legislative or executive, are their trustees and servants; and at all times, in a legal way, accountable to them.”

I certainly agree that the Committee is accountable to the people of Vermont. The people of Vermont expect us to ensure that elected officials who breach the public trust, who are unfit for office, are held responsible. To determine whether to hold them responsible through impeachment, the Committee needs to weigh credible allegations against the investigated officials. To do so, the Committee must conduct a thorough investigation and maintain the integrity of that investigation. And to ensure the integrity of its investigation, the Committee will need to, at times, take testimony and deliberate in executive session.

During the final weeks of the 2023 legislative session, the House Judiciary Committee focused on issues related to mental health in the criminal justice system. The Committee updated laws related to competency to stand trial and also set the stage for opening a forensic facility to secure certain individuals charged with an offense and facing a mental health crisis.

Individuals who have been charged with a criminal offense and are either afflicted with a mental illness or have an intellectual disability may not be competent to stand trial. The central question with competency is the defendant’s mental health status  at the time of the trial: a defendant is incompetent to stand trial if they are unable to understand the criminal charges or are unable to participate meaningfully in their own defense. A person found incompetent to stand trial can be recharged with the crime later, if the person regains competency. This differs from a defendant being found not guilty by reason of insanity, which concerns their state of mind at the time of the offense rather than at the time of trial.

When a defendant’s competency is raised in a criminal proceeding, a mental health professional must perform a competency evaluation. Currently, it may take months before such an evaluation can be conducted. Such delays have existed for years, but were exacerbated during the Covid pandemic. 

Having to wait for a competency evaluation impinges on the defendant’s right to a speedy trial. Delays not only hurt defendants, who may end up awaiting trial in prison for a crime they did not commit, but also victims and victim’s family members. People naturally seek closure, and delays on the path to justice may cause further pain and harm. 

The legislature passed Senate Bill 91 to reduce wait times for the initiation of competency evaluations. At the present time, only a psychiatrist may conduct such evaluations. The bill would expand the availability of examiners by also allowing doctoral level psychologists with training in forensic psychology to conduct competency evaluations. 

The bill would limit the circumstances under which a court may order a subsequent competency evaluation.  In determining whether to order a subsequent evaluation, the court must consider any clinical evidence provided by the treating physician indicating that the defendant’s competency may have changed. The bill would also permit the court to issue an arrest warrant for a defendant who has received notice of a competency evaluation but failed to appear for it. Without any repercussions for failure to appear, many defendants do not show up for one or even multiple competency evaluations, at a significant cost to the State, and extending wait times. The bill would additionally ensure that mental health documents are expeditiously shared with the examiner conducting the competency evaluation. These and other provisions will help reduce the waiting time for evaluations, which also will help with the current overall court backlog. 

When a defendant is deemed to be incompetent to stand trial, the individual may be committed to the custody of the Department of Mental Health (DMH) or, if the person has an intellectual disability, to the Department of Aging and Independent Living (DAIL). Senate Bill 89 would lead to the opening of a forensic facility for certain individuals in the custody of DMH or DAIL.  The bill puts Vermont on a path to open a facility that would house individuals who have been charged with a violent crime, are deemed not competent to stand trial, and still present a significant risk of danger to themselves or others if not held in a secure setting. The facility would also house individuals who have been adjudicated as not guilty by reason of insanity. 

There is general agreement that Vermont is in need of a forensic facility. Vermont’s system of care does not account for individuals who do not need hospital-level care but do need intensive mental health support, sometimes including involuntary medication. A forensic facility would serve that need. 

The bill proposes to locate the nine-bed forensic facility within the existing Vermont Psychiatric Care Hospital, but several steps must be taken before the facility is ready to house individuals by the summer of 2024. DMH and DAIL will start a rule-making process related to the use of restraints or involuntary medication in a forensic facility. Also, a working group will examine whether commitment to a forensic facility is appropriate for Vermonters with intellectual disabilities and, if so, will propose legislation setting forth the procedures and criteria for considering whether individuals should be committed to such a facility.

More than 700 Vermont residents died of gunshot wounds in the decade between 2011 and 2020. 88 percent of those gun deaths were suicides. Of all firearm-related deaths in Vermont in 2021, 89 percent were suicides and eight percent were homicides. The 2021 suicide rate by all methods in Vermont was 20.3 per 100,000 people, compared to a national rate of 14.0 per 100,000 people. Suicide among Vermont men and boys is 50 percent higher than the national average. In 2021, there were 142 suicides in Vermont, and 83 of those (58%) were completed by firearm. Rand Corporation research estimates that in 2016, firearms were present in 47 percent of Vermont homes and in 32 percent of homes in the United States. Children are 4.4 times more likely to die by suicide in a home with a firearm compared to a home without a firearm.

These were some of the troubling findings that the House Committee on Health Care included in H.230, a bill that would implement measures to reduce suicide. That committee advanced three policies to meet that goal.

First, the bill would create a secure-storage requirement. It would require a person to securely store firearms in circumstances where a child or person prohibited from possessing a firearm is likely to gain access to them. If a child or prohibited person accesses an improperly secured firearm and commits a crime or causes harm with it, the owner of the firearm would face potential imprisonment or fine or both. To avoid impinging on a person’s right to self-defense, the provision would not apply if a firearm is carried by the owner or another authorized user or within such close proximity that it can be readily retrieved and used by the owner or authorized user.

Second, the bill would improve access to Vermont’s red-flag law, which allows a court to issue an Extreme Risk Protection Order (ERPO). This is a civil order that temporarily prohibits individuals who pose a danger of injury to self (including suicide) or others from purchasing, possessing, or receiving any dangerous weapons, including firearms. Under current law, only a State’s Attorney or the Office of the Attorney General may file an ERPO petition. H.230 would allow a family or household member to initiate the process for obtaining an ERPO by directly petitioning the court for an emergency order.

If a court issues the emergency order, it must hold a hearing within 14 days to provide the person against whom the order was issued an opportunity to be heard. At that point, the State’s Attorney or Attorney General would take over the case from the family or household member and become the party to the action. H.230 would make the process for obtaining an ERPO more accessible to those who are in the best position – family or household members – to know if someone is a danger to themselves or others.

Third, the bill adds a waiting period.  A person would not be allowed to transfer a firearm to a purchaser until 72 hours after the purchaser passes a background check or after 7 days without any result from the background check, whichever occurs first.

After the bill was passed out of the Health Care Committee, the House Judiciary Committee, which I chair, took testimony and worked on H.230. Although we considered other issues related to the bill, we focused on the constitutionality of the provisions, in particular whether they would run afoul of the Second Amendment of the U.S. Constitution.

In the Judiciary Committee, we heard from witnesses who testified that they believe the provisions in H.230 are constitutional and from others who believe that they are unconstitutional. Ultimately, as our legislative counsel testified, courts will have the final say. At this time, it is not clear how the courts binding on Vermont will rule on such firearms regulations. And it may not be clear for a while.

The Vermont Attorney General testified that she acknowledged that there were concerns about the constitutionality of any gun legislation in light of the recent Supreme Court decision in New York State Rifle & Pistol Association v. Bruen. But the Attorney General concluded that her office thinks H.230 is constitutional and urged the legislature to pass the bill.

I have no reason to disagree with the Attorney General. Indeed, we heard strong testimony that the provisions in H.230 for safe storage, improving accessibility to our red flag law, and implementing a waiting period are constitutional. As I fully explain in a post at martinlalondevt.com, I believe that the courts will find such provisions to be constitutional. In the interim, implementing these measures will save lives.

Under the Bruen and Heller opinions, the provisions in H.230 should be deemed constitutional under the Second Amendment. The Supreme Court’s test in Bruen, once again, is the following: “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”

Starting with the Secure Storage provisions:

Under the Supreme Court’s test, we must ask what the conduct is that H.230 is regulating and whether the Second Amendment’s plain text covers that conduct.

The firearm must be securely stored when it is not being carried or in close proximity to the owner or authorized user.

The plain text of the Second Amendment guarantees the right to keep and bear arms.

As explained in the Heller opinion, to keep arms means to have weapons or to possess them.

The secure storage provisions in H.230 do not impinge on one’s right to have or possess firearms.

To bear arms, as explained in Heller, means to “wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.” It means to “carry weapons in case of confrontation.”

The secure storage provisions in H.230 do not prohibit an owner or authorized person from carrying a firearm in the home. It also does not prohibit an owner or authorized person from having a firearm in such close proximity that it can be readily retrieved and used. The bill also explicitly states that there is no violation if a child or prohibited person accesses and uses the firearm in self-defense or defense of another person.

So, in the first instance, H.230 does not impinge on the right protected by the Second Amendment.

Assuming that the conduct is covered by the text of the Second Amendment, one would look to whether the regulation is consistent with the National historical tradition of firearms regulations.  As explained in Bruen, (may I quote)

“(T)his historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are “relevantly similar.”

“To be clear, analogical reasoning under the Second Amendment is neither a regulatory straightjacket nor a regulatory blank check. On the one hand, courts should not “uphold every modern law that remotely resembles a historical analogue,” because doing so “risk[s] endorsing outliers that our ancestors would never have accepted.” On the other hand, analogical reasoning requires only that the government identify a well-established and representative historical analogue, not a historical twin. So even if a modern-day regulation is not a dead ringer for historical precursors, it still may be analogous enough to pass constitutional muster.”

There are analogous provisions related to firearm storage. For example, as recognized in a different context in the Vermont Supreme Court case, State of Vermont v. Misch, “Vermont’s 1863 gunpowder storage law, which required more than one pound of powder be securely stored in a metal canister, placed a burden on the ability to rapidly prepare and fire multiple rounds of ammunition.”

There are other Vermont and National historic regulations that are also analogous. But a court need not undertake that analysis because, as I explained, the secure storage provision does not infringe on the right to keep and carry a firearm for self defense.

The secure storage provisions in H.230 simply do not impinge on the Second Amendment’s right to keep and bear arms.

Moving to the ERPO provisions.

As stated in Heller, nothing in the Supreme Court’s “opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill.”

Laws prohibiting possession of firearms by felons and the mentally ill provide apt analogies for the ERPO law, which bars an individual who is an immediate danger to themselves or others from possessing a firearm. Such laws aim to keep firearms from those who presumably may misuse them.

There are several dozens of historical laws related to limiting access to firearms by people deemed dangerous, just as ERPO laws do.

The ERPO provisions of H.230 should be deemed constitutional.

Moving to the Waiting Period provisions.

First and foremost, the best support for the constitutionality of laws regulating the sale and transfer of firearms is the limiting language from Heller that Bruen made clear to not disturb. The Supreme Court went out of its way to identify “laws imposing conditions and qualifications on the commercial sale of arms” as “longstanding” and “presumptively lawful.” District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008).

A waiting period would impose a condition on the sale of arms, not on the right to possess and carry weapons in case of confrontation and not on the right to keep and bear arms.

The plain text of the Second Amendment, as at least one court has found, does not address the sale and transfer of arms.

Also there are nearly 80 historic laws regulating aspects of sale and manufacture of firearms. There’s no shortage of historical analogs for courts to parse through if and when any provision of H.230 is challenged.

The best historical analogues are two laws from Maine and Massachusetts that regulated the sale and transfer of firearms by setting safety standards that any firearms sold needed to meet. Those laws are on the Judiciary Committee’s webpage. 

Notably, colonial government regulation included some restrictions on the commercial sale of firearms. In response to the threat posed by Indian tribes, the colonies of Massachusetts, Connecticut, Maryland, and Virginia all passed laws in the first half of the seventeenth century making it a crime to sell, give, or otherwise deliver firearms or ammunition to Indians.

At least two colonies also controlled more generally where colonial settlers could transport or sell guns. Connecticut banned the sale of firearms by its residents outside the colony.

And under Virginia law, any person found within an Indian town or more than three miles from an English plantation with arms or ammunition above and beyond what he would need for personal use would be guilty of the crime of selling arms to Indians, even if he was not actually bartering, selling, or otherwise engaging with the Indians. 

Citations for these laws can be found in the case Teixeira v. Cnty. of Alameda, 873 F.3d 670, 685 (9th Cir. 2017), which is on the Judiciary Committee webpage.

In short, the waiting period provisions of H.230 impose conditions and qualifications on the commercial sale of arms and should be deemed constitutional.

You all can feel confident that the provisions of H.230 have been well-drafted to withstand constitutional challenges and are good policy.

Regarding claims that Heller found firearm storage laws unconstitutional:

• This is an incorrect reading of the Heller decision, which made clear that it was not striking down such laws (see page 60 of the decision): “Nor, correspondingly, does our analysis suggest the invalidity of laws regulating the storage of firearms to prevent accidents.” Courts have subsequently upheld state secure storage laws,including the Ninth Circuit.

• Heller invalidated a law that required people, as interpreted by the Supreme Court, to keep guns unloaded even if under attack in their homes. That’s not what any secure storage laws do, as the Court itself recognized.

Since Heller, courts have upheld the constitutionality of secure storage laws.