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.

The following is the report I delivered on the House Floor in support of H.230, an act relating to mechanisms to reduce suicide.

Your House Judiciary Committee focused on three main issues when we considered H.230.

First, we considered issues related to criminal offenses. We asked the following:  Were the elements of the offenses in the bill clearly defined and consistent with current law?  Were the penalties associated with the offenses consistent with current penalties? What issues might arise with respect to the enforceability of the offenses?

Second, we considered court process. This was a particular focus when we looked at the bill’s proposed changes to Vermont’s red flag law – a law that currently allows a State’s Attorney or the Attorney General to obtain an Extreme Risk Protection Order.

Third, our main concern was the constitutionality of the provisions. We analyzed whether the provisions would run afoul of the Second Amendment of the U.S. Constitution or of Article 16 of the Vermont Constitution.

As to the benefits of H.230 in addressing suicide prevention, we defer to the Committee on Health Care, although some of our witnesses discussed that issue. We did consider how the provisions would otherwise impact public safety, an issue within the Judiciary Committee’s jurisdiction.

Before reviewing the details of the Judiciary Committee’s strike all amendment to H.230, I will first provide a background for our analysis of the law’s constitutionality. I will describe the current state of the law related to the Second Amendment to the U.S. Constitution.

That amendment states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

In the 2008 case District of Columbia v. Heller, the U.S. Supreme Court held for the first time that the Second Amendment protects an “individual right to possess and carry” firearms for the purpose of self defense. However, the Court did not indicate how the lower courts should evaluate firearms regulations going forward. Post-Heller, courts generally analyzed firearms regulations under one of two standards — intermediate scrutiny (where a law must be substantially related to an important state interest) or strict scrutiny (where a law must be narrowly tailored to serve a compelling state interest). These tests required balancing the state’s professed need for the regulation against the state’s encroachment on the right to possess and carry firearms. These are known as “means-ends” tests.

When the Judiciary Committee had considered firearm violence prevention measures in the past, we applied this means-ends balancing test.  We balanced important or compelling state interests against any restrictions to the right to keep and bear arms, and we would seek to narrowly tailor the measures to maintain a proper balance. 

But the Supreme Court recently discarded that test in the Second Amendment context. Last year in the case New York State Rifle & Pistol Association v. Bruen, the Supreme Court changed the legal analysis that is required to evaluate firearms laws under the Second Amendment. The Court expressly rejected any type of means-end balancing test, and instead said that going forward the test would be the following:   (May I quote from the Bruen decision?)

“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.”

Since issuance of the Bruen opinion, courts have been using and will continue to use this test to review laws implicating the Second Amendment. And so far, the courts have come to divergent conclusions on how to apply the Bruen test.

The overarching question for courts and for us in applying the Bruen test is:  What types of regulations may be permitted under the Bruen test?  It is unclear if the 6 member Bruen majority even agrees on the answer to that question. Two justices who wrote a separate opinion in Bruen might join the three dissenting justices to uphold some firearms regulations that others in the majority would strike down. Justice Kavanaugh wrote a concurring opinion joined by Chief Justice Roberts emphasizing that a key holding of the Court’s earlier decision in Heller was still good law. Justice Kavanaugh explained:   (May I quote from the Bruen Concurrence?)

Properly interpreted, the Second Amendment allows a “variety” of gun regulations.

As Justice Scalia wrote in his opinion for the Court in Heller, . . .  ‘Like most rights, the right secured by the Second Amendment is not unlimited. . . the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…. [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. [Footnote 26: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.]

At least five of the current justices, then, could vote to uphold a relatively broad spectrum of firearms regulations.

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 on whether the provisions are constitutional. 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.

It is more clear that H.230 is constitutional under Article 16 of the Vermont Constitution. In the 2021 opinion State of Vermont v. Misch, the Vermont Supreme Courtset forth a standard called the reasonable-regulation test for evaluating challenges under Article 16. Under that test, the Vermont Court will uphold a statute implicating the right to bear arms provided it is a reasonable exercise of the state’s power to protect the public safety and welfare. The provisions of H.230 would protect the public safety and welfare of Vermonters and should be deemed constitutional under Article 16.

The Vermont Attorney General testified that she acknowledged that there were concerns about the constitutionality of any gun legislation in light of the Bruen decision. But the Attorney General concluded that her office believes 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, both under the Second Amendment and Article 16 of the Vermont Constitution. Courts will have the final say, but we believe they should find such provisions to be constitutional.

Now, turning to the Judiciary Committee’s strike all amendment, found on today’s calendar at page 974.

Based on testimony and documents from the Department of State’s Attorneys, the strike all amendment adds five findings.  Finding number 8 provides recent information about the effectiveness of our red flag law. Findings 9 through 12 address certain issues related to public safety. Findings 9 and 10 note that firearms purchased in Vermont and transferred out of state contribute to violent crime in other states. Finding 11 notes that firearms are often acquired in Vermont through straw purchases, where someone buys a gun for another person who is not legally allowed to own one, such as felons. Waiting periods are shown to deter straw purchases. Finding number 12 notes that research has shown that waiting period laws can reduce gun homicides.

Turning to section 2 of the bill, which involves secure firearms storage.  The amendment grammatically changes subdivision (a)(1) for clarity.

Subsection (2) was revised to address a vagueness concern.  The bill as passed by Health Care stated that “This subsection shall not apply if the firearm is carried by or under the control of the owner or another lawfully authorized user.”  The term “under the control of” was deemed vague so we replaced that language to “within such close proximity that it can be readily retrieved and used by the owner or another authorized user.”

Skipping to the definitions section on page 977 of today’s calendar, the strike all amendment adds a definition at subdivision (e)(1) of authorized user.

Back to page 976. Subdivisions (3)(A) and (B) in the bill as passed by Health Care were listed as exceptions to subsection (a). The Judiciary Committee felt that rather than exceptions to the requirements for secure storage in subsection (a), these were more properly considered as actions that should not give rise to a violation of the secure storage requirement. This is admittedly a bit of a nuanced change.

Moving on to subdivision (b)(1), which the Judiciary Committee has struck. This provision would have imposed a fine on the owner of a premises for failing to properly secure firearms, whether or not the firearms were ultimately accessed and misused. This provision probably raised the most concern in testimony and the committee because it would be difficult to enforce. And there is a concern for privacy. The concern was raised that in order to enforce the provision, someone would have to go into a home and inspect the premises to see if firearms are securely stored. Striking this provision eliminates these concerns around enforcement and privacy.

Our strike all amendment provides that criminal penalties would only be applied for violation of the safe storage provision in cases when a child or prohibited person accesses an unsecured firearm and misuses it. Misuse means committing a crime with the firearm, displaying the firearm in a threatening manner, or causing death or serious bodily injury with the firearm. 

The other significant change to the secure storage provision in the strike all amendment relates to injury. Subdivision (b)(2) imposes a five-year felony if a child or prohibited person gains access to an unsecured firearm and causes death or, in the bill as passed by Health Care, injury to any person.  Under the Health Care Committee’s definition, “injury” would include a harmful effect on one’s health, including mental, emotional, or physical health, based on the misuse of an unsecured firearm.  And certainly such an injury would be possible. But this is not a recognized injury under our criminal laws, particularly for a felony-level offense. That definition is too broad. For a felony-level offense, the appropriate standard is serious bodily injury, which is defined in the strike all amendment through a cross reference to 13 VSA 1021(a)(2).

(2) “Serious bodily injury” means:

(A) bodily injury that creates any of the following:

(i) a substantial risk of death;

(ii) a substantial loss or impairment of the function of any bodily member or organ;

(iii) a substantial impairment of health; or

(iv) substantial disfigurement

In subsection (c), injury is changed to serious bodily injury. In addition, the word shall is changed to may to recognize the importance of prosecutorial discretion in such situations. A witness from the Department of State’s Attorney testified that subsection (c) was not necessary because a State’s Attorney would already consider whether to charge a parent in this situation. But we felt it was important to send the message acknowledging the trauma that a parent would experience in this situation while recognizing that the decision is within the discretion of the prosecutor.

Turning now to Sections 4 through 6 on page 978.

The intent of the Health Care and Judiciary Committees is to make the process for obtaining an Extreme Risk Protection Order (or ERPO) more accessible to those who know first-hand whether someone poses an extreme risk to themself or others.

As has been explained, an ERPO 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. They usually would seek an emergency, or ex parte, ERPO first. To obtain an ex parte ERPO, the court must find by a preponderance of the evidence that the respondent poses an imminent and extreme risk of causing harm to themselves or another person by purchasing, possessing, or receiving a dangerous weapon or by having a dangerous weapon within their custody or control. A hearing for an ex parte ERPO does not have to include the person against whom the order is sought. But, if the court issues an ex parte ERPO, it must provide that person notice that the order was entered and must hold a hearing open to that person within 14 days. After that later hearing, if the court finds by a higher standard – clear and convincing evidence – that the person is a danger to themself or others, it may issue an order that lasts up to six months. If an ex parte or final ERPO is issued, law enforcement will assist in obtaining weapons that the respondent must relinquish.

H.230 as passed by Health Care would allow a family or household member to initiate the process for obtaining an ERPO by directly petitioning the court for the order  A State’s Attorney or the Attorney General would also still be able to do so.

The Judiciary Committee’s amendment first changes the definition of “Household member.” In the bill as passed by Health Care, the definition cross references 15 VSA 1101. That definition would include anyone who has ever lived with or dated the person who presents an extreme risk of harm, which is extremely broad.  The committee’s amendment narrows the definition to include only those currently living together, sharing occupancy in a dwelling, dating, or engaged in a sexual relationship.

Turning to section 6 of the strike all on page 979 of today’s calendar. The Judiciary Committee’s new subdivision 4054(b)(1)(B) would provide the following:  if a court grants an ex parte ERPO that was initiated by a family or household member, the Court would notify a State’s Attorney or Attorney General, and one of these offices would take over the case. They would become the party in court in the action for a final ERPO.

Jumping back to section 5 of the bill at page 978. Instead of requesting a temporary ex parte order, the family or household member could instead directly file a petition for a final ERPO. Under new subdivision 4053(b)(2) in our strike all amendment, the State’s Attorney or the Attorney General would be substituted as the plaintiff in the action.

To obtain a final ERPO, the standard of proof to show that the person is an imminent and extreme risk of causing harm to themselves or another person is clear and convincing evidence. That standard would be difficult for a lay person to meet. This is the primary reason for substituting the State’s Attorney or Attorney General in a case seeking a final ERPO. 

In addition, once an ex parte or emergency ERPO is entered, law enforcement and a State’s Attorney or Attorney General will already necessarily be involved in the process for obtaining relinquished firearms.

The Judiciary Committee amendment also strikes what was Section 5 of H.230 as passed by the Health CAre Committee. With the substitution of the state’s attorney or Attorney General in the case, it is important that a family or household member files the petition in the county where the respondent resides or the county where the events giving rise to the petition occurred. The case shouldn’t be filed in the county where the family or household member resides if it is different than where the respondent resides or the events occurred.

In addition the Judiciary Committee amendment strikes what was Section 8 of H.230 as passed by the Health Care Committee. With the substitution of a State’s Attorney or Attorney General in the final ERPO process, and therefore as the moving party for any extension of the ERPO, the changes to Section 8 were no longer necessary.

Family or household members would continue to be able to go through a State’s Attorney or Attorney General to obtain an emergency ERPO. In many instances this would be a better approach given the expertise of those offices. But the amendment eases the way for a family or household member to initiate the process by going directly to court.

In short, the Judiciary Committee’s amendments to H.230 seek to make the process for obtaining an ERPO more accessible to family and current household members, those who are in the best position to know if someone is a danger to themselves or others.

72 HOUR WAITING PERIOD FOR FIREARMS TRANSFERS

Turning to Section 7 of H.230, which involves a 72-hour waiting period for the purchase of a firearm in Vermont. 

Last year, the legislature passed S.30, which, among other provisions, closed the so-called Charleston Loophole. In Vermont, anyone purchasing a firearm needs to undergo a background check. However, gun purchases can legally go forward under federal law after three days if the background check has not yet been completed. That is the “Charleston Loophole.” S.30 closed this loophole – under the bill, the purchase could not be made until the background check was final, no matter how long that might take. The Governor vetoed S.30. 

In response, the legislature passed S.4 with a compromise related to background checks. S.4 provided more time for completion of the background check, from 3 days to 7 days, but if the background check was not completed in 7 days, the firearm purchase could proceed. The Governor signed S.4.

Back to H.230, the waiting period provision in the bill as passed by Health Care would have inadvertently closed the Charleston Loophole. Under the bill, a firearm purchase could not go forward until the background check was completed and the purchaser was deemed not to be a prohibited person. To honor the compromise reached last year, the Judiciary Committee amendment would provide that the transfer of a firearm could proceed either 72 hours after the purchaser passes a background check or after 7 days without any result from the background check, whichever occurs first.

The Judiciary Committee amendment also addresses a concern related to gun shows. These shows often occur over a weekend, making it more difficult for a transaction to occur and for a purchaser to obtain a firearm under a 72-hour waiting period. The amendment would exempt purchases at gun shows from the 72-hour waiting period. This exception, however, would be repealed effective July 1, 2024.  This repeal would give the legislature time for further consideration of whether a person who has proof of firearm ownership and can pass a background check should be subject to the 72-hour waiting period. It would allow time to consider a method for firearm purchasers to be able to show that they already own a firearm.

We heard from the following witnesses:

1.              A doctor with the Pediatric Critical Care, University of Vermont Children’s Hospital

2.              Co-sponsor

3.              President, VT Federation of Sportsman Club

4.              Litigation Attorney, Giffords Law Center to Prevent Gun Violence

5.              Vermont Attorney General

6.              Government Affairs Manager, Lake Champlain Regional Chamber of Commerce

7.              President, Gun Owners of Vermont

8.              Student – Mount Abraham Union High School, representing GunSense Vermont

9.              Legislative Counsel

10.  Associate Regional Director of State Government Affairs, Everytown for Gun Safety

11.  Counsel, Everytown for Gun Safety

12.  Attorney, Vermont Department of State’s Attorneys and Sheriffs

13.  Supervising Attorney, Appellate Division, Office of the Defender General

14.  Chief Superior Judge, Vermont Judiciary

The Committee vote was 7-4-0.

H.230 provides meaningful measures to reduce the incidence of firearm violence in Vermont, particularly related to the use of this lethal means of suicide. There is strong support for the constitutionality of the provisions. H.230 is a solution that we should implement now. It will save lives while preserving Vermonter’s right to keep and bear arms. I ask you to support the Judiciary Committee’s strike-all amendment.

The House Judiciary Committee has had a productive first half of the 2023 Biennium, passing out ten bills addressing a wide range of issues. It passed bills that would establish protections for providers and patients of reproductive or gender-affirming health care, modernize Vermont’s power of attorney law, and eliminate driver’s license suspensions as a consequence for failure to pay fines on moving violations. Throughout the session, the committee has also focused on addressing domestic and sexual violence.

Data from the Vermont Network Against Domestic and Sexual Violence shows that more than 40,000 Vermonters experience domestic or sexual violence every year. The House Judiciary Committee has worked on multiple bills this session to protect more Vermonters and better address the full spectrum of abuse.

Most survivors of domestic or sexual violence do not seek relief from their abuser either through a protective order or a report of abuse to law enforcement. In Vermont, only 12 to 20% of survivors access the criminal justice system and BIPOC survivors are even less likely to do so. National data suggests that only a quarter of sexual assault victims report the abuse to law enforcement or seek medical care.

Often individuals do not report domestic or sexual violence because they fear the typical criminal justice process. Also, many survivors wish to, or out of financial necessity must, continue to be in some form of relationship with the people who harm them – whether this is continuing an intimate partner relationship or navigating the challenges of coparenting. Going to court or to the police is not necessarily an option they are likely to pursue.

To address this reluctance and provide an avenue other than a court or the police to address such violence, stakeholders have explored the potential for restorative approaches. In 2018, the Vermont Legislature passed Act 146, which created an interdisciplinary Study Committee to examine restorative justice approaches to addressing domestic and sexual violence. The Committee’s report included consensus recommendations that the House Judiciary Committee followed in its work on H.41. 

The bill, recently passed by the House, would allow community justice centers (CJCs) to receive referrals of domestic and sexual violence cases under specific conditions. Opening the door to a restorative justice approach, which is victim-centered and focused on repairing harm, may lead more victims to seek relief.

While domestic violence is most often equated with physical violence, domestic abuse can take many forms. One such damaging form of intimate partner violence is litigation abuse. Litigation abuse is the misuse of court proceedings by abusers to control, harass, intimidate, coerce, and/or impoverish survivors. Abusers may make frequent court filings that the survivor of domestic violence then needs to answer, costing money, work time, and a sense of security. Abusive litigation is also a drain on the court’s very limited resources. 

To address litigation abuse, the House has passed H.45, which limits a convicted abuser’s ability to use the court system to continue harming a survivor of domestic violence, stalking, or sexual assault. The bill would establish a narrowly defined process to protect victims while still ensuring the due process rights of those using abusive tactics. It would allow a court to screen legal filings to protect both the wellbeing of the survivor and the resources of the court.

The House also passed H.148, a bill that would ban child marriage. Vermonters who marry younger than 18 years old (89% of whom are female) are more likely to be abused by their spouse and are at higher risk for a host of physical and mental health challenges. Because marriage is a contract, this bill aligns with Vermont’s stance that children cannot enter into a legally binding contract.

When the legislature returns from the town meeting break, the House Judiciary Committee will continue its consideration of H.27, a bill that would include coercive control as a form of abuse for which a victim may obtain a protective order. Abusers may use various coercive tactics to control their partners, isolate them from support, and deprive them of independence. This type of abuse often escalates until physical abuse occurs. H.27 would expand a victim’s access to protection by allowing judges to consider the full pattern of abusive behavior before it potentially turns lethal.

The following is my report for H.89, an act relating to civil and criminal procedures relating to legally protected health care.

Last spring in its opinion in Dobbs v. Jackson Women’s Health Organization, the Supreme Court overturned Roe v. Wade. This precedent had protected the right to abortion for nearly 50 years.  In Dobbs, the Court left the protection of reproductive rights to individual states. Following the decision, many states are banning or severely restricting access to abortion services.

Under the reasoning of Dobbs, the Court will likely leave protection of other rights, such as gender-affirming health care, to the states. Many states are now prohibiting transgender people from receiving gender-affirming care.

Some states with these bans are likely to try to use their own laws to stop such care from happening beyond their borders. When their residents receive reproductive or gender-affirming care from Vermont-licensed providers, these states may try to hold the Vermont providers criminally or civilly liable.

Banning or restricting reproductive and gender-affirming health care is contrary to Vermont’s public policy.

Vermonters understood the threat that the U.S. Supreme Court posed to reproductive liberty and wisely started work on protecting these rights over four years ago. That work culminated this past November in voters overwhelmingly approving a constitutional amendment protecting reproductive rights and bodily autonomy.

The Vermont legislature has also recognized the right to gender-affirming health care. In a resolution last year, the Vermont legislature condemned the actions of states that ban best practice medical care for transgender youth.  We committed to exploring all available options to ensure that transgender youth and their families are safe in Vermont to make the best decisions for themselves in consultation with their health care providers.

With the introduction of H.89, the House is now poised to take the next step in protecting access to reproductive health care as well as gender-affirming health care. H.89 would create a so-called Shield Law to protect Vermont doctors, nurses, therapists, and others who are providing reproductive or gender-affirming health care that is legal here in Vermont. The law would protect patients and those who help them obtain this health care if the patient and those who help them are located in Vermont when they receive the service. H.89 would offer some protection to patients who are not located in Vermont when they obtain this health care from a Vermont provider, as well as those who help such patients obtain care.

H.89 would check the overreach by other states. It would reduce legal risks for providers of health care that is legally protected in Vermont. It would also reduce legal risks for patients and for those who aid, support or encourage patients obtaining such care from a Vermont provider.

The bill would protect Vermont-licensed providers from out of state subpoenas and summons where the action in the other state involves health care that is legally protected in Vermont. It would bar Vermont state agencies and employees from giving information to other states to help with an investigation or proceeding involving legally protected health care. It would prevent extradition of Vermont providers charged with providing legally protected health care when extradition is not required by the Constitution. It would allow people to countersue if someone tries to enforce an out of state judgment related to legally-protected health care. It would protect Vermont providers, patients and clinics from threats and violence. And it would protect the home addresses of patients and providers of legally protected health care.

A separate bill that has been introduced in the Senate, S.37, would ensure that medical professionals do not face punishment from licensing boards for providing legally protected health care here in Vermont. The bill would also protect such providers from facing higher medical malpractice insurance premiums. These two bills would complement each other, collectively providing comprehensive protections for providers and patients.

Now, to the details of H.89.

Section one found on page 63 of today’s calendar adds definitions that will apply throughout all 33 titles of the Vermont statutes.

“Legally-protected health care activity” is defined as including reproductive health care services and gender-affirming health care services. Those services are also defined in the section.

The definition in subdivision 150(b)(2) explains that actions that are otherwise prohibited by Vermont law are not legally protected health care activity. The bill provides that “the protections applicable to ‘legally protected health care’ shall not apply to a lawsuit, judgment, or civil, criminal, or administrative action that is based on conduct for which an action would exist under the laws of this State if the course of conduct that forms the basis for liability had occurred entirely in this State.”  So, for example, if a defendant could be liable in a lawsuit in Vermont for conduct that took place in Vermont, such as malpractice or practicing without a license here in Vermont, H.89 would not protect that defendant against a lawsuit brought in another State for that same conduct.

Under subdivision 150(b)(3), if a clinician is licensed in Vermont and physically present in Vermont when providing legally protected health care services, H.89 would protect that provider from actions in other states wherever the patient is located. As long as the Vermont provider is licensed in Vermont, they do not have to be licensed in the state where the patient is located at the time the services are rendered to receive the protections of the shield law. This provision clarifies that H.89’s protections extend to the provision of telemedicine services involving legally protected health care for patients outside of Vermont. This does change the assumption for telemedicine that the law of the patient’s location applies. But so long as the Vermont-licensed provider is following Vermont law and accepted clinical practices as established by professional organizations and licensing Boards, the law would shield them from liability. 

Rather than proceeding straight through the bill, the best way to understand what this Shield Law would do is to present a scenario and explain how the different provisions would protect a Vermont provider of legally protected health care services.

Assume that a Vermont-licensed clinician in Vermont supports a patient from Texas in obtaining an abortion.  A Texas resident could use a Texas law known as SB-8 to sue the Vermont clinician to obtain a $10,000 bounty. Under H.89, the Vermont clinician would be shielded from that lawsuit.

I’m going to skip around in reviewing H.89 to explain how the bill would protect the Vermont provider.

Beginning with Section 3 starting at the bottom of page 64 of today’s calendar. The Vermont provider will be protected from “abusive litigation” that is brought with the intent of suppressing the provision of health care services that are legal in Vermont. Section 7301 defines abusive litigation as “litigation or other legal action to deter, prevent, sanction, or punish any person engaged in legally protected health care activity.” Subdivisions (1)(A)(i) and (ii) provide further detail. The Texas lawsuit would be considered abusive litigation under these definitions.

Subdivision 7301(1)(B) clarifies that Vermont will consider such litigation to be based on conduct that occurred in Vermont if “any act or omission” forming the basis of the lawsuit occurred or was initiated in Vermont. So, if the Texas patient traveled and received services in Vermont or the Vermont-licensed clinician provided the service to someone in Texas through telehealth, Vermont courts would hold that the conduct occurred in Vermont and will apply Vermont law.

Jumping to section 7304 found on page 67 of today’s calendar. In the Texas case, the Texas plaintiff might seek testimony or documents from the Vermont provider to support their lawsuit. Section 7304 provides that a Vermont court will not honor such a request. Subsection 7304(a) provides that a court shall not order a person in Vermont to give testimony or produce documents in the other state’s proceeding where that proceeding is considered abusive litigation under Vermont law.

When a Vermont court receives a subpoena request from another state, it may not be immediately clear that the subpoena is connected to abusive litigation, simply because of the way such requests are filed.  So that court might issue the subpoena. In that case, subsection 7304(b) would allow the Vermont party to quash the subpoena by showing that it was issued in connection with abusive litigation. The Vermont clinician in my scenario, then, would be able to invalidate such a subpoena from a Texas court.

Despite the inability to obtain testimony or documents from the Vermont clinician, the Texas court could still proceed with the case without the cooperation or appearance of the clinician. It could also issue what is called a default judgment against the clinician. But under H.89, that is not the end of the story.

So, we turn to section 7302 on page 65 of today’s calendar.  Under this section, the Vermont clinician can bring a lawsuit in Vermont at this point against the Texas plaintiff, for interfering with legally protected health care. This section establishes a new cause of action for “tortious interference with legally-protected health care activity.” Subsections 7302(b) and (c) provide further details regarding what the tortious interference case would address. Subsection 7302(d) explains the relief available to the person, in my scenario the Vermont clinician, including damages that could include the amount of the Texas judgment against the Vermont clinician, plus costs and attorneys’ fees.

Subsection 7302(e) explains when a Vermont court can exercise jurisdiction over the party who brought the abusive litigation in the other state – here, the plaintiff in the Texas case.

Turning to section 7303 page on the bottom of page 66 of today’s calendar.  Whether or not a tortious interference claim is brought and whether or not it was successful, the plaintiff in the other state can still try to enforce its judgment in Vermont. In my scenario, the Texas plaintiff could seek to enforce their judgment in a Vermont court. The Vermont court can enforce the judgment, but only if the Texas court (1) had jurisdiction over the Vermont clinician and (2) provided the clinician with due process.  The standards for showing jurisdiction can be complicated. In short, jurisdiction probably could be established if the Vermont clinician had certain contacts with Texas, such as having an office or practice there. Due process is also complicated. At a minimum, the Vermont clinician would have to have been given notice and an opportunity to be heard in the Texas case.

In addition, the Vermont court could decline to give effect to the Texas judgment if it finds that the judgment is penal in nature. Whether it is penal in nature is also a complicated issue. If it is clear that the civil judgment is not intended to compensate the plaintiff but is instead to punish, deter, or sanction the Vermont clinician, a Vermont court could very well find the judgment to be penal and would therefore not give it effect.  These are issues that future lawsuits will likely clarify.

Turning your attention to subsection 7303(b) on the top of page 67 of today’s calendar. This provides for a five-year statute of limitations for the enforcement of judgments from another state (referred to as “foreign judgments”) where those judgments are issued in connection with abusive litigation involving legally protected health care. A five-year statute of limitations is in line with what other states impose for the enforcement of foreign judgments. In our Texas scenario, the Texas plaintiff would have to seek enforcement in a Vermont court within five years of receiving their judgment in Texas.

Before I discuss one other provision of H.89 in the context of the scenario that I laid out, I’m going to address a few other provisions that are in section 4 of the bill.

Subsection 7302(f) on page 66 of today’s calendar provides that the tortious interference cause of action may not be brought if the other state’s lawsuit or judgment is based on conduct for which there is a right to sue in Vermont, including any contract, tort, common law, or statutory claims. In other words, if the lawsuit could have been brought under Vermont law, a tortious interference claim would be disallowed.

Subsection 7302(g) excludes the attorney representing the out-of-state party from liability under the tortious interference cause of action.

Section 7305 on page 67 of today’s calendar clarifies that Vermont law will apply in any case in Vermont involving legally protected health care.

Section 7306 bars certain entities from cooperating with those in other states who are investigating or proceeding against Vermont’s legally protected health care services. No Vermont public agency or employee may knowingly provide information or use resources to help with an interstate investigation or proceeding that seeks to impose civil or criminal liability on someone in Vermont based on legally protected health care services. Subsection 7306(b) provides certain exceptions to this prohibition.

Now let’s back up to Section 2 of H.89, which is found on page 64 of today’s calendar.  This section prevents the misuse of Vermont’s anti-SLAPP statute. The term “SLAPP” is an acronym for Strategic Lawsuit Against Public Participation. Vermont’s anti-SLAPP statute allows a defendant to avoid liability in actions “arising from the defendant’s exercise, in connection with a public issue, of the right to freedom of speech or to petition the government for redress of grievances.” Section 2 would bar a defendant faced with the tortious interference claim from relying on the Vermont anti-SLAPP statute. The court would not consider the tortious interference claim as suppressing freedom of speech or the right to petition.

To illustrate, let’s go back to my scenario.  Assume an individual in Texas obtains a judgment in Texas against a Vermont provider who has helped a Texas resident receive an abortion. The Vermont provider files a case alleging tortious interference with legally-protected health care activity – the cause of action created in section 3 of the bill.  Without the exception in H.89, the Texas defendant could seek to end the tortious interference case through use of Vermont’s anti-SLAPP statute. The defendant could claim that the Vermont tortious interference case impinged on their rights to free speech. But section 2 of H.89 amending the anti-SLAPP statute would foreclose this attempt.

Having covered Section 3 of the bill, I will next move to Section 4, which begins on page 68 of today’s calendar. The provision prohibits interference with access to a health care facility. It is modeled after a federal law called the Freedom of Access to Clinic Entrances, a law that has been upheld by federal courts. The federal law imposes a criminal penalty, but H.89 imposes a civil fine.

Subsection 1033(a) provides findings, explaining that “all persons must be able to access health care facilities for the purpose of obtaining legally protected health care activity.”  This right is to be balanced against the right to protest those procedures, but willful obstruction should be prevented.

Subsection 1033(b) provides relevant definitions, including what is meant by “health care facilities” and what is a “physical obstruction.”

Subdivision 1033(c)(1) prohibits anyone from using force or threat of force to knowingly injure, intimidate, or interfere with a person’s access to legally protected health care, or attempting to do so.

Subdivision 1033(c)(2) prohibits anyone from knowingly damaging the property of a health care facility that provides legally protected health care.

I will note that these prohibited activities can also result in criminal liability under provisions of our existing criminal code including those related to trespassing or disorderly conduct.  This provision provides a civil fine to provide another option for addressing such interference.  Subsection 1033(d) provides a $300 civil penalty.

Subsection 1033(e) clarifies that this section does not prohibit conduct or expression that is constitutionally protected.

Section 5 on page 69 amends 4 VSA 1102 to state that the Judicial Bureau has jurisdiction over violations relating to interference with access to health care facilities.

The next two sections address situations when another state has brought a criminal case against a Vermont provider of legally protected health care activity.

To provide context, I will explain another scenario.  Alabama law provides that anyone who engages in or causes a transgender minor to receive gender-affirming care faces a felony punishable by up to 10 years in prison or a fine up to $15,000. Assume that a Vermont-licensed therapist located in Vermont provides services related to gender-affirming care via telehealth to an Alabama family. An Alabama District Attorney seeks to prosecute the therapist and the minor’s parents. The DA seeks to have the therapist extradited to Alabama to face charges.

Under Vermont’s current extradition law, if the Vermont-licensed therapist had provided services while located in Alabama and then traveled back to Vermont, the therapist would be considered a fugitive and Vermont would have no choice but to extradite the therapist. However, because the therapist in this scenario was located in Vermont when providing the services, extraditing the therapist under current law would be discretionary.

Section 6 located on page 69 of today’s calendar amends Vermont’s extradition law to take away that discretion. If the therapist was in Vermont when providing the legally protected health care, section 4970 would prevent the person’s extradition.

Moving to Section 7. This section amends the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases.  If the Alabama DA seeks to secure the attendance of the therapist in Alabama as a witness for the prosecution of the minor’s parents, section 6650 would prevent that from occurring.

Subsection 6650(a) restates Vermont’s public policy against interference with legally protected health care activity.  Subsection 6650(b) provides that a court shall not issue a summons requiring a witness to appear in another state if the action in the other state involves legally protected health care.  So, the Vermont court would not honor the Alabama summons.  The court would, however, have to honor the summons if the criminal violation being prosecuted in that state is also a crime in Vermont.

Section 8 of H.89 starts on page 70 of today’s calendar.  This section amends 15 VSA chapter 21, which currently protects the confidentiality of the addresses of victims of domestic violence, sexual assault or stalking.  Section 8 amends chapter 21 so that these protections are extended to a person providing, assisting another person in obtaining, or obtaining for themselves reproductive health care services or gender-affirming health care services in Vermont.

Subdivision 1150(a)(2) finds that such individuals may be harassed, intimidated or threatened because of their legally protected health care activity. Subsection 1150(b) explains that the address confidentiality program allows state and local agencies to respond to requests for public records without disclosing the location of protected persons.

Section 1151 provides definitions, adding cross references to the definitions of gender-affirming health care services and reproductive health care services.

Section 1152 sets forth the application process for inclusion in the confidentiality program. Subdivision 1152(a)(1)(A)(ii) adds persons providing, assisting with, or obtaining reproductive or gender-affirming health care services in Vermont.

Section 8 also includes variety of requested non-substantive edits to clean up the language of this chapter.

Section 9 provides the effective dates of the bill.  Sections 1 to 7 take effect on passage. Section 8 – the confidentiality provision – takes effect on September 1, 2023.

In my review of H.89 to this point, I have focused on the protections for those in Vermont, particularly for those who provide legally protected health care services. These protections extend to doctors, clinicians, and nurses. They also cover insurers, Vermont patients, or anyone else in Vermont helping or engaging in a patient’s access to such services – people who could be in the cross hairs of another state’s legal action aimed at deterring, preventing, sanctioning, or punishing anyone who is engaged in legally-protected health care activity.

Protections in H.89 are also provided to out-of-state patients. We are not able to prevent another state from taking action against a patient in that state or against someone in that state who helps a patient receive reproductive or gender-affirming health care services.  But we do not have to cooperate with the other state in its efforts. Under the shield provided by H.89, Vermont courts and agencies would decline to provide witness testimony, statements, or documentation that could further the other state’s case against a patient or anyone who assisted them.

As I come to the end of this report, I will provide another example of how the shield law would protect Vermonters. Vermont youth may attend college or summer camps in states that ban or restrict reproductive or gender-affirming health care. That Vermonter may access reproductive health care in that other state from a Vermont provider or continue to work by telehealth with their Vermont therapist on topics considered gender-affirming health care. The shield law would protect this doctor-patient relationship in the manners I have described. 

The provisions in the H.89 shield law and similar shield laws in other states will raise new and interesting legal questions. Having said that, we have heard from several legal experts including a law professor, Vermont’s Solicitor General in the Attorney General’s office, the chief of the criminal division of the Attorney General’s office, the ACLU, other attorneys, and legislative counsel, who all have said that under current law H.89 is constitutional.

Before I list our witnesses, I will highlight some of what H.89 does NOT do. It does not change Vermont’s statutes or the medical community’s guidelines related to reproductive or gender-affirming health care. It does not change the standards of care or how the standards of care are determined. It does NOT affect existing statutes or guidelines regarding a minor’s ability to consent to such care.

Vermont cannot change the fact that many states have made abortion and gender-affirming care illegal. We cannot change the fact that many states have restricted or denied access to such health care.  But what we can do with this bill is protect Vermont-licensed healthcare providers and people who obtain or help others obtain reproductive or gender-affirming health care from Vermont providers from the very real threat that other states pose.

The committee vote was 9-1-1 and we ask for your support.

I am honored to once again serve South Burlington in the Vermont State House and I thank the voters of District 12 for their support. This biennium, I will be taking on additional responsibilities as the chair of the House Judiciary Committee. In that role, I have guided the Committee in deliberations on the legislature’s response to the U.S. Supreme Court’s opinion overruling Roe v. Wade, which left the protection of reproductive rights to individual states. Under the reasoning of this case, the protection of other rights, such as gender-affirming health care, is also left to the states.

Vermonters understood the threat that the U.S. Supreme Court posed to reproductive liberty and wisely started work on protecting these rights over four years ago. That work culminated this past November in the voters overwhelmingly approving a constitutional amendment protecting reproductive rights and bodily autonomy.

In addition to curtailing or barring access to reproductive health care, many states have attempted to limit access for LGBTQ+ youth to gender-affirming health care, such as puberty blockers. For example, last year the Alabama governor signed a bill into law that prohibits transgender minors from receiving gender-affirming care. The bill also provides that anyone who engages in or causes a transgender minor to receive such care faces a felony punishable by up to 10 years in prison or a fine up to $15,000. In contrast, in a resolution last year, the Vermont legislature condemned the actions of states that ban best practice medical care for transgender youth and prosecute parents for seeking such essential care for their children. It further committed to exploring all available options to ensure that transgender youth and their families are safe in Vermont to make the best medical care decisions for themselves in consultation with their health care providers.

With the introduction of H.89, the House is now poised to take the next step in protecting access to reproductive health care as well as gender-affirming health care. H.89 would create a so-called Shield Law to protect Vermont doctors, nurses, and others who are providing reproductive or gender-affirming health care that is legal here in Vermont. The law would also provide protections to patients receiving this health care from Vermont clinicians.

States that have passed or are passing laws restricting reproductive or gender-affirming health care are creating civil sanctions against those involved in providing such health care, even criminalizing such care. And they are also likely to try to use these sanctions to stop such care from happening beyond their borders. When their residents come to Vermont and receive reproductive or gender-affirming care, these states may try to hold Vermont providers criminally or civilly liable.

H.89 would check this overreach by other states. It would advance protections against abusive lawsuits against a person providing health care that is legally protected in Vermont or a patient receiving that care from a Vermont provider.

The bill includes several provisions: Under the bill, Vermont courts could not order anyone to give testimony or a statement or produce documents for use in connection with abusive litigation targeting legally protected health care. All public agencies in Vermont would be barred from cooperating in an interstate investigation or proceeding that tries to impose liability for obtaining or providing legally protected health care. Vermonters could sue anyone who interferes with someone obtaining or providing legally protected health care in Vermont. There would be a new misdemeanor crime for physically interfering with someone obtaining or providing legally protected health care in Vermont. The bill would also maintain the confidentiality of the addresses of patients who receive and clinicians who provide legally protected health care.

The House Judiciary Committee has been taking testimony on these and other provisions to understand how they uphold Vermont’s public policy of ensuring the legal right to access reproductive and gender-affirming health care services in a way that complies with the Constitution. A separate bill to be introduced in the Senate will also ensure that medical professionals do not face punishment from licensing boards for providing abortion care that is legal in Vermont but banned in another state. The bill will also ensure that such providers do not face higher medical malpractice insurance premiums.

I. Expanding Safe and Affordable Housing

Over the past three years, the General Assembly has committed about $375 million to housing — roughly half from federal COVID relief funds and half from the General Fund and prop- erty transfer tax. These appropriations have been used to enhance shelter capacity and supportive services for those who are homeless, to build more than 1,000 units of housing that will be affordable to low- and middle-income families, to repair rental properties that are currently un- available because they are not up to code, and to provide incentives to develop accessory dwelling units and down-payment grants for first-generation homebuyers.

Given Vermont’s critical housing needs, bolstering our housing stock was once again a top priority. Through federal COVID relief funds, over $42 million was earmarked this year in S.210 and S.226 to help Vermont renters and homeowners. With this funding, we were able to:

● Dedicate $20 million toward forgivable loans to property owners to bring rental proper- ties up to code, and incentivize the construction of new Accessory Dwelling Units, to expand Vermont’s rental housing stock.

● Direct $22 million to subsidize new construction to lower costs for middle-income home- buyers, plus $1 million to the Vermont Housing Finance Agency (VHFA) for down payment grants for first-generation homebuyers. Repair and improvement grants will also be available for manufactured homes.

● Reform zoning laws, expand tax credits, and create pilot projects to encourage denser development and more vibrant town centers.

● Create a statewide contractor registry to protect against consumer fraud in residential construction projects with a value of over $10,000.

● Increase the Department of Fire Safety’s capacity to conduct rental inspections.

Overall, these investments — a total of over $90 million when combined with mid-year budget adjustments dedicated to emergency shelter and low-income housing — will enable us to provide more safe, healthy, and affordable housing as soon as we can. We’ve advanced funding and policy that will make a dent in our critical housing needs, while establishing pilot programs that could provide a template for future investment on a state and federal level.

II. Investing in Workforce and Economic Development

S.11 is a significant workforce and economic development bill that addresses the negative economic impacts of COVID on our employers, workers, and families and establishes opportunities to grow Vermont’s economy. The bill creates or enhances programs to increase workforce participation and reinforce and sustain workers in nursing, mental health care, childcare, and the trades. It includes scholarships, forgivable loans, education, training, and intern- ship programs. S.11 provides for economic development programs to support businesses and municipalities, sick leave related to COVID, and tax credits. It also assists specific sectors, including the creative economy.

In total, $113.5 million is appropriated using ARPA and General and Education Funds to achieve these goals. A few highlights include:

● Forgivable loans for businesses ($19 million)

● Creative economy ($9 million)

● Nursing and healthcare ($12.5 million)

● Trades ($4.5 million)

● COVID paid family leave ($15.18 million)

● Unemployment insurance ($8 million)

● Community recovery and revitalization grant program ($10 million)

● Downtown and village tax credit ($2.45 million)

● Continuation of Everyone Eats program ($1.3 million)

III. Financial Stability for Our Public Pension System

The General Assembly has put the State’s public pension system on a path toward long- term sustainability, so that teachers, troopers, and other state employees can rely on a well-funded, solvent system when they retire. Legislators balanced commitments — one to state employees and teachers and another to Vermont taxpayers — in the face of a $5.6 billion unfunded liability that would have continued to grow with- out action.

Act 114 is the result of 15 months of hard work to engage Vermonters in a shared and sustainable solution. The State of Vermont will contribute $200 million in one-time surplus revenues. Meanwhile, teachers and state employees will increase and restructure their contributions — higher-income workers will pay a higher percentage of their income — and accept a small adjustment to cost-of-living increases. These savings will be re-invested into the pension system to retire the debt sooner.

In all, these changes will eliminate $2 billion of unfunded liability and ensure retirement security and healthcare certainty for retired teachers and state employees for years to come. The law represents the culmination of months of hard work and negotiation by the Pension Task Force, made up of legislators, public employees, and an administration employee. Through that collaboration, we won unequivocal tripartisan support and got a deal across the finish line.

The Governor vetoed the bill, but the House and Senate voted unanimously to override. The resounding override sends a clear and strong signal of support for our hard-working teachers and state employees. This is the first time in State history that both chambers have voted unanimously to override a veto.

Act 114 gives our teachers and state employees peace of mind: They will have their hard-earned pension when they retire.

IV. Reproductive Liberty as a Constitutional Right

For many decades, Vermont has recognized reproductive choices as deeply personal, fundamental rights that should be free from governmental or political restrictions. Reproductive choices affect all Vermonters in their freedom to become a parent, use birth control, or choose or refuse sterilization.

This session, after a four-year, deliberate, and inclusive legislative process, the House passed Proposal 5 by an overwhelming majority. If ratified by the voters in November, Prop 5 will enshrine reproductive liberty into our State’s constitution, ensuring that these rights are preserved for future generations.

While the U.S. Supreme Court is poised to overturn federal protections provided by Roe vs. Wade, and many states across the country are slipping backwards in their laws regarding reproductive liberty, Vermonters will now be able to vote these values into our State Constitution this November, a historic opportunity at a critical time for our nation.

V. Environmental Protection

A. Clean Water

The legislature continues to support clean water for Vermont and Vermonters. This includes investing in water, sewer, and stormwater infra- structure and programs that improve community resilience to climate change impacts, such as flooding.

In total, Vermont received $1.2 billion from the federal American Rescue Plan Act. In the FY22 budget, $100 million of that amount was designated for water and sewer investments. The FY23 budget allocates an additional $104 million. This includes:

● $31 million for permitting, design, and construction support in certain stormwater retro- fit projects

● $15 million to support design and construction of community-scale water and decentralized wastewater projects to reinforce underserved designated centers

● $5 million to municipalities, businesses, and nonprofits to install or enhance pretreatment processes to address high-strength or toxic wastes

● $10 million to municipalities with small and primarily residential customer bases to up- grade or replace water or wastewater treatment systems at risk of failure

● $20 million to assist municipalities to design and construct projects to reduce or eliminate wet weather sewer overflows

● $6.5 million for improving water and wastewater systems at coop-owned and nonprofit mobile home parks

● $15 million to replace failed on-site water and wastewater supplies for Vermonters with low income or who are unable to access or afford market rate loans

● $1.5 million to update leaking service lines and old plumbing and replace outdated fixtures with high-efficiency devices

Looking ahead, $355 million more is anticipated for water investments through the federal Infrastructure Investment and Jobs Act (IIJA). Funds are anticipated mid to late summer: $9.5 million to the Clean Water State Revolving Loan Fund (CWSRF) this year, increasing to $13 million by 2026; and $19 million to the Drinking Water State Revolving Loan Fund (DWSRF) this year, increasing to $26 million by 2026. In each of five years there will also be $30 million for lead service line replacement.

Anticipated this year for tackling PFAS- chemical contaminants is $500,000 to the CWSRF, increasing to $1.125 million by 2026, as well as $8 million for five years to the DWSRF. There will also be $8 million per year for five years targeting Lake Champlain water quality projects. This federal IIJA funding is in addition to an ongoing annual appropriation of $6 million through the EPA/Lake Champlain Basin Program. There are, addition- ally, millions anticipated to help clean up twelve Superfund sites and more than 5,000 brownfield properties in Vermont.

In 2022, the legislature also passed H.466 with strong tri-partisan support. This bill creates a program to track and manage our State’s surface water withdrawals. The program ensures that there is adequate surface water, even at times of drought, to meet our water needs and maintain water quality standards now and into the future. A major housing bill, S.226, also contains flood- plain protection incentives to reduce the flood damage risks that face our communities.

B. Investing in Climate Action

The State’s FY23 budget includes $566.7 million from the federal American Rescue Plan Act. Of that amount, $129.8 million is allocated for weatherization and other climate change mitigation investments. These allocations are informed by the knowledge that, in Vermont, transportation and thermal (building heating) are the sectors that pose the greatest challenges in reducing greenhouse emissions. They include:

● $45 million to the Home Weatherization Assistance Program for lower-income households

● $35 million to the Electric Efficiency Fund for weatherization incentives to Vermonters of moderate income

● $2 million to support continued build- out of electric vehicle charging infrastructure along highway networks

● $20 million to provide low- and moderate-income households with financial and technical assistance to upgrade home electrical systems to enable installation of energy saving technologies, plus $5 million to install, at low or no cost, heat-pump water heaters

● $15 million to improve landscape resilience and mitigate flood hazards

● $2 million to help low- and moderate-in- come households purchase electric equipment for heating, cooling, and vehicle charging, plus support for municipal back-up electricity storage installations

● $4.8 million to provide farms with help implementing soil-based practices that improve soil quality and nutrient retention, increase crop production, minimize erosion potential, and re- duce waste discharges

● $1 million for the Urban and Community Forestry Program to plant up to 5,000 trees to improve air quality and reduce heat island effects

The FY23 budget also includes climate investments from the General and Transportation Funds: $32.2 million and $600,000 respectively. These allocations support electric vehicle charging infrastructure, electrification incentives, and investments in public transportation.

One final investment in this category is $8 million from the General Fund to provide up to 70% reimbursement to municipal and cooperative electrical distribution utilities for implementation of Advanced Metering Infrastructure. This infrastructure provides information necessary to improve energy efficiency, while also helping utilities manage costs and improve customer service.

C. Helping Vermonters Switch to Clean Heat

The House and Senate passed H.715, the Clean Heat Standard (“CHS”), to put Vermont on a path to a more affordable, lower-emissions energy future. The CHS is the most significant policy recommended in Vermont’s Climate Action Plan and the most important climate bill passed by the legislature this year.

The CHS would obligate companies selling heating fuel in Vermont to lower greenhouse gas emissions over time. The requirements could be met by delivering a range of clean heat alternatives — heat pumps, weatherization, advanced wood heating — that reduce fossil fuel consumption, or by displacing some fossil fuel delivery with lower carbon-intensity biofuels. Consumers would continue to have a choice with their heating options and would benefit from more incentives when they choose cleaner heat alternatives.

In early May, the Governor vetoed H.715. In his letter to the General Assembly, he requested that the CHS return to the legislature for final review before its 2025 approval and that the bill include more analysis of CHS costs and impacts. In fact, the final bill had included these measures so it is unclear why the Governor used these rationales to justify his veto. Unfortunately, the House was one vote short of overriding the veto.

The climate crisis is a threat to our com- munity and our prosperity and we cannot afford to delay action. We must move forward to help all Vermonters adapt our lives, communities, and businesses to the accelerating effects of climate change in a way that leaves no one behind.

D. Protecting Biodiversity

Vermont biodiversity has been declining precipitously in recent decades. The State continues to lose forest cover, and the remaining forest is increasingly fragmented. H.606 establishes
the goals of conserving 30% of the State’s land by 2030 and 50% by 2050. The Secretary of the Agency of Natural Resources will develop a plan to meet these goals using Vermont Conservation Design as a guide.

VCD is a state-created map of “the areas of the state that are of highest priority for maintaining ecological integrity.” Conservation would be achieved through a combination of private, state, and federal land. To further these goals, H.697 extends the Use Value (Current Use) program to include reserve forestland under certain conditions. Reserve forestland is land that is managed for the purpose of attaining old forest values and functions. This extension encourages the management of land for old forests, which currently comprise less than one percent of Vermont’s forestland. Protecting old forests is important as they are more complex than young forests and thus harbor greater biodiversity.

VI. Judiciary Committee Work

A. Advancing Firearm Safety Measures

Some of our most at-risk Vermonters are those fleeing domestic violence. The majority
of all homicides in Vermont are domestic violence-related, and almost everyone involves a firearm. Act 87 helps address this danger by clarifying that judges can order the relinquishment of firearms in an emergency Relief from Abuse Order to remove guns from emotional, potentially dangerous situations.

The law advances further important public safety measures. It removes firearms from other potentially volatile situations—and protects our frontline health care workers—by banning fire- arms from hospitals. The law also protects Vermonters by extending the amount of time some- one must wait to purchase a firearm when their criminal background check is delayed.

B. Identifying Racial Disparities in Vermont’s Criminal Justice System

We continue to work toward a fairer and more equitable Vermont. But we know that Vermonters of color are much more likely to be stopped by law enforcement than white Vermonters. We also know that Black Vermonters make up a disproportionate number of incarcerated persons in our State. To help identify and address the sources of these disparities, we need better data from the State’s criminal justice system.

To that end, H.546 creates a Division of Racial Justice Statistics. The new division will collect data on individual interactions with law enforcement, State’s Attorneys, Vermont courts, the Department of Corrections, and other entities to uncover and remedy systemic racial bias and disparities in our criminal and juvenile justice system. An advisory council has also been created to incorporate the data into suggestions for concrete actions the legislature can take as we strive to make our State welcoming to people of all racial and ethnic backgrounds.

C. Access to Adoption Records

Act 100 allows adopted Vermonters to access their original birth certificates. During testimony on this bill, many adoptees spoke movingly on how incomplete they felt, how difficult it was to move on without having birth documents — access that most Vermonters take for granted. With passage of this law, adopted Vermonters— over 30,000 of our neighbors—will own their history in a way previously denied to them. It also creates a registry for future birth parents to clarify if they wish to be contacted by children they have felt the need to give up for adoption. This registry also allows them to share any information they wish their birth children to know, making this process kinder for both birth parents and adoptees.

D. Medical Monitoring for Vermonters Exposed to Toxic Substances

Over the past several years, Vermonters have been disturbed to learn of several incidents of toxic contamination in our State. People exposed to these toxic substances often have
no way of knowing what the long-term consequences could be for their health. But they may not have the financial means to afford the medical monitoring that could catch health issues at an early stage when treatment would be most beneficial. Act 93 provides a cause of action for compelling the party responsible for exposure to a toxic substance to cover the costs of medical monitoring of those affected by the contamination. It lifts a burden of uncertainty off Vermonters coping with long-term health concerns through no fault of their own.

VII. Advancing Equity

A. Amending Vermont’s Constitution to Address Slavery

Vermont outlawed slavery in 1777 when it ratified its first constitution. But the ban is not absolute. As currently written, the prohibition against slavery only applies to people over the age of 21. Additionally, under the current language, the Constitution does not bar a Vermonter over 21 from consenting to being bound into slavery. Proposal 2 would amend Article 1, Chapter 1 of the Vermont Constitution, replacing this original section with language stating plainly that “slavery and indentured servitude in any form are prohibited.” Changing the State constitution is a four-year process. The legislature must approve proposed language in two successive biennia.

In early February 2022, the legislature gave its second vote of approval. The proposed amendment will be on the ballot for all Vermont voters to consider in November 2022. Some may question the need for this change because slavery has been outlawed in the United States since 1865. The unfortunate reality in 2022 is that forms of modern slavery, such as sex trafficking and the labor of undocumented immigrants, still exist in this country and Vermont has not been spared. Given the continuing challenges with racism in our society, passing Prop 2 sends a crucial message about the aspirations we have for our State and how all Vermonters deserve to be treated.

B. Truth and Reconciliation Commission

If signed by the Governor, Act 128 establishes the Vermont Truth and Reconciliation Commission. The Commission will spend three years examining systemic discrimination that has been caused or permitted by State laws and policies. Its final report, due by June 2026, will detail findings and recommend steps Vermont can take to eliminate institutional, structural, and systemic discrimination, and to address the related harm. Progress reports are due every year to the legislature. In creating a Vermont that works for all of us, it’s essential to seek out the voices of com- munities that have been and remain impacted by discrimination and racism, to learn from their experiences and work with them to eliminate disparities and redress harms.

C. Expanding Access, Lowering Barriers to Safe and Affordable Housing

In 2015, the General Assembly created a revolving fund within the Vermont Housing Finance Agency. That fund, the Down Payment Assistance Program, assists first-time homebuyers who meet income-based criteria. The program has been very successful. From 2015 through March of 2022, it has provided $7,474,098 in loans to 1,565 borrowers. If signed by the Governor, S.226 would expand the program to include a $1 million grant program for first-time homebuyers who are also first-generation buyers. The bill recognizes that Black, Indigenous, and Persons of Color have historically lacked access to capital for home ownership and have been systemically discriminated against in the housing market. It directs the Housing Finance Agency to work with community racial justice organizations to develop an outreach plan, which would ensure that down payment assistance opportunities are effectively communicated, and that funds are equitably available, to communities of Vermonters who have historically suffered housing discrimination.

S.226 also would amend provisions of the Vermont public accommodations and fair housing laws. Those laws are currently under-enforced because Vermont courts inconsistently apply the current standards for harassment and discrimination claims in the sale or rental of a dwelling
or real estate. S.226 clarifies and simplifies those standards to remove barriers to such claims. (In a separate bill, H.729, the statute of limitations for filing such claims is extended to six years.)

Finally, S.226 would establish an advisory Land Access Opportunity Board, composed of representatives of groups that have faced historic discrimination in land and home ownership. The new board will work with the Vermont Housing and Conservation Board and its partners to re- duce current disparities as a result of that dis- crimination.

D. Supporting Transgender Youth

Recognizing that several states have restricted or banned access to best practice medical care for transgender youth, the General Assembly in J.R.S.53 affirmed its support for transgender youth who seek essential medical care for the treatment of gender dysphoria. Mi- nor patients, their parents, and their healthcare providers should have the freedom to decide what medical care is appropriate in accordance with current medical best practices. In the resolution, the General Assembly commits to exploring all available options to ensure that transgender youth and their families are safe in Vermont and able to make the best medical care decisions for themselves in consultation with their healthcare providers.

E. Pupil Weighting Factors

In Vermont, we take seriously our collective responsibility for educating all our students in every corner of the State. This year, Act 127, we took significant steps to update our education funding system to account for the varying costs of educating different categories of students. For example, it costs more to achieve equivalent educational outcomes for English language learners or children from economically-deprived backgrounds than for children who are not in those cohorts. S.287 modifies the educational funding mechanism to provide districts with the resources needed to achieve strong outcomes for all students.

VIII. Education

A. Mental Health Support for Educators and Students

The COVID pandemic has taken a tremendous toll on the social, emotional, and mental health of Vermont’s school communities. Act 112 taps into $3 million in federal stimulus funds to establish a two-year program that will offer COVID recovery support for teachers and staff ($500,000) and provide grants to expand mental health and wellbeing services for children and youth ($2.5 million).

The student-focused grants can be used for a wide variety of programs, such as expanding school-based counseling and after-school or summer programs. Grant recipients must work closely with teachers, school counselors, and staff to provide one-on-one or small-group sessions that address important topics like resilience, sub- stance abuse, suicide prevention, social isolation, and anxiety. The grants will target geographically diverse and underserved regions in Vermont.

B. Free Universal Breakfast and Lunch for the 2022–2023 School Year

Vermont made huge strides in combating food insecurity during the pandemic. With federal support, public schools provided free breakfast and lunch for all students during the last two school years. But this federal funding ends in June 2022. To maintain this critical program, the legislature passed S.100 to continue universal school meals through the 2022–2023 school year with $29 million from the Education Fund surplus.

S.100 reduces hunger and erases stigma in our schools by ensuring that a nutritious break- fast and lunch are available to all students. Under the pre-pandemic program, not all food-insecure students qualified for free or reduced-price school lunch; the income limit was set very low, at $32,227 for a single parent with one child. During the upcoming school year, we will collect data around the cost of universal school meals and study potential long-term funding opportunities for this program.

C. School Construction Updates

This year the legislature continued its work on school facilities statewide, including obtaining an inventory and conditions assessment of Vermont’s school buildings. It covered 305 schools and made initial assessments on safety, security, technology, and systems such as roofing, HVAC, plumbing, and fire suppression and prevention. Additional assessment is ongoing. Schools must also conduct radon testing by 2025.

D. Investing in Childcare

Vermonters spend more of their income on childcare than the citizens of any other State. Vermont parents of toddlers spend an average of one quarter of their annual income on childcare. Even for those who can afford it, quality childcare is scarce. To meet that demand, we need to create more than 8,000 new slots. Over the past four years, the legislature has been working to help in many different ways, including:

● Expansion of the Child Care Financial Assistance Program eligibility requirement from 300% to 350% of the federal poverty level

● Elimination of co-pays for all families below 150% of poverty level

● Early educator access to a loan repayment program of $700,000 and a scholarship program of $1.8 million

● A study looking into the goals of no family paying more than 10% of income for childcare and higher compensation for early childhood educators

● $27 million of Vermont’s ARPA funds invested in childcare stabilization

in FY22 budget adjustment and $1 million added in FY23 budget

● $800,000 a year for capacity grants to create more slots in childcare centers with a focus on ages 0 to 3

● $125,000 grants to students pursuing early childhood education careers

● $6,000,000 for childcare from unallocated reserves if we have at least $86 million in undesignated funds at the end of FY22

● $6 million added for retention bonuses

IX. A Balanced and Transformative State Budget

The FY2023 state budget (H.740) totals $8.3 billion, a 5 percent increase over the current fiscal year. The budget honors the commitment the legislature made at the beginning of the pan- demic: to support Vermonters, their families, and their communities across all 14 counties, and to leave no one behind in a strong statewide recovery.

That commitment includes investing $453.7 million in federal COVID relief in five broad areas: Economy, Workforce, and Communities; Housing; Broadband Connectivity; Climate Action; and Clean Water. Those investments, added to FY2022 investments, complete the allocations
of the $1.2 billion received through the federal American Rescue Plan Act.

The budget includes a long-overdue rate increase of 8 percent to community mental health providers, designated agencies, specialized service agencies, and home health care providers. It provides millions to support substance abuse disorder prevention and recovery. It includes increased funds for Adult Day programs, Vermont Legal Aid and the Vermont Health Care Advocate.

We’re investing $96 million in broadband projects and $137.8 million in community, work- force, and economic development. The University of Vermont base budget is increased by $10 mil- lion, the first increase in 14 years. The Vermont State College System also has a base increase of $10 million, plus $14.9 million to serve as a “bridge” in their ongoing transition to fiscal and operational stability. Coverage is expanded by $4.9 million for working families within the Child Care Financial Assistance Program.

This year’s investments in housing pro- grams, including the “missing middle” and manufactured housing, tally $90 million. Transformational climate and water initiatives include $80 million for weatherization and $45 million for municipal energy resilience grants. There is also $8 million for advanced metering infrastructure and over $60 million for additional electrification initiatives.

The legislature’s work in the 2021-22 Biennium resulted in major accomplishments, including investing significant funds in housing and workforce development, putting the State’s public pensions on a path to sustainability, and assisting vulnerable Vermonters. The House Judiciary Committee on which I serve also produced important legislation that may not have received as much attention. Below, I focus on four of those bills from this past Session.

Firearm Safety Measures.  Some of our most at-risk Vermonters are those fleeing domestic violence. The majority of all homicides in Vermont are domestic violence-related, and usually involve a firearm. Act 87 helps address this danger by clarifying that judges can order the relinquishment of firearms in an emergency relief from abuse order to remove guns from emotional, potentially dangerous situations.

The law advances other important public safety measures.  It removes firearms from potentially volatile situations—and protects our frontline healthcare workers—by banning firearms from hospitals. The law also protects Vermonters by extending the amount of time someone must wait to purchase a firearm when their criminal background check is delayed.

 Identifying Racial Disparities in Vermont’s Criminal Justice System. Vermonters of color make up a disproportionate number of incarcerated persons in our state. To help identify and address the sources of these disparities, we need better data from the State’s criminal justice system. To that end, H.546 creates a Division of Racial Justice Statistics. The new division will collect data on individual interactions with law enforcement, State’s Attorneys, Vermont courts, the Department of Corrections, and other entities in order to uncover and remedy systemic racial bias and disparities in our criminal and juvenile justice system. An advisory council has also been created to incorporate the data collected into suggestions for concrete actions the legislature can take as we strive to make our state welcoming to people of all racial and ethnic backgrounds.         

Access to Adoption Records.  Act 100 allows adopted Vermonters to access their original birth certificates. During testimony on this bill, many adoptees spoke movingly on how incomplete they felt and how difficult it was to move on without having birth documents — access that most Vermonters take for granted. With passage of this law, adopted Vermonters—over 30,000 of our neighbors—will own their history in a way previously denied to them. It also creates a registry for future birth parents to clarify if they wish to be contacted by children they given up for adoption. This registry also allows them to share any information they wish their birth children to know, making this process kinder for both birth parents and adoptees.

Medical Monitoring for Vermonters Exposed to Toxic Substances. Over the past several years, Vermonters have been disturbed to learn of several instances of toxic contamination in our state. People exposed to these toxic substances often have no way of knowing what the long-term consequences could be for their health. They also may not have the financial means to afford the medical monitoring that could catch health issues at an early stage, when treatment would be most beneficial. Act 93 provides a cause of action for compelling the party responsible for exposure to a toxic substance to cover the costs of medical monitoring to those affected by the contamination. It lifts a burden of uncertainty off Vermonters coping with long-term health concerns through no fault of their own.

One effort that did not make it across the finish line involved restructuring Vermont’s criminal code. The House passed three bills that dealt with this issue (H.87, H.475, and H.505), but the Senate Judiciary Committee was unable to take them up before the Session ended. I am excited to be running to return to the State House and, if I am reelected, one of my priorities will be to finish this work.