A Long Week in the House

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As the legislative session winds down (about two weeks left), long hours and controversial bills have been the norm in the House.

This past Wednesday and Thursday, the House took up a bill related to the Patient Choice at End of Life law, also known as the Death With Dignity Act. That law, which was passed in the last biennium, provides immunity for doctors who prescribe medication for the purpose of hastening a patient’s death. The law provides a number of protections, among which are the requirements that the patient must make two oral requests for medication to be self-administered for the purpose of hastening the patient’s death; the patient must make a written request for such medication in the presence of two witnesses who are not interested persons (e.g., family members, acquaintances); a physician must determine that the patient is, in fact, terminally ill, is capable, and is making an informed and voluntary decision; and the physician must inform the patient of the patient’s diagnosis, prognosis, range of treatment options, availability of palliative or hospice care, and the probable result of taking the prescribed medicine. The law also provides that these protections would sunset on July 1, 2016. After these protections sunset, physicians would still be immune from prosecution for prescribing medications that would hasten death. Apparently, to get this law passed, this sunset provision was included to get the votes of certain lawmakers who did not want the state involved in the matter.

The bill before the House would repeal the sunset provision and thus would keep the protections in place. Before voting on whether the repeal should go to a third reading the House considered an amendment that would have repealed the law in its entirety. After long debate, this amendment was defeated by a 60 to 83 vote, and the bill then was passed to a third reading.

The next day several amendments were offered at third reading to modify certain requirements of the law and to impose additional reporting requirements. Most were defeated except for one directing the Department of Health to adopt rules to facilitate the collection of certain information. The bill then passed, thus the protections of the Act will be retained.

I did vote for the bill, as I think having some control over one’s end-of-life choice is important, so long as protections are in place that ensure the choice is appropriate and informed. Representative Komline summed it up well when she said at the close of debate that “They take this medication when the time for hope is over. They’re not choosing death. They’re just choosing the way they die.”

On Thursday, the House next took up S.9, a Child Protection Bill. I have provided a description of this bill in a previous post. When the bill was first introduced in the Senate, it included a provision that would have created a felony for failure to protect a child. This provision sparked significant controversy primarily because it could act as a disincentive for people to get involved in trying to protect children. The bill that passed excluded any new or enhanced crimes and overwhelmingly passed the House.

Also on Thursday, the House started its consideration of a health care bill. My next article for The Other Paper, which I will post on Thursday, will address the main aspects of this bill. Here, I will mention three aspects of the bill that The Other Paper article will not address.

First, the bill was amended to include tobacco substitutes (electronic cigarettes) in current law regulating the display, sale, and use of tobacco products. In addition, it imposed a tax on the sale of tobacco substitutes.

Second, the bill relies on revenues generated through expanding the sales tax to include sales of candy and soft drinks, increasing taxes on tobacco products, and imposing a meals tax on items purchased from vending machines. These taxes, and the tax on tobacco substitutes, are appropriate sources for funding health care reform. The prices of these products do not fully reflect their costs to society, namely in the increased costs of health care due to obesity and tobacco use. Taxing these products internalizes some of the external societal costs that they impose – it makes the price of the product more accurately reflect their true cost. In addition, by increasing their prices, their consumption and use should decrease, with the resulting decrease in health care costs.

Finally, the bill includes provisions establishing performance milestones for Vermont Health Connect (“the Exchange”). Among these milestones will be the delivery of functioning technology by May 31, 2015 that addresses change of circumstances, and delivery of a fully automated system by October 1, 2015 that allows for 2016 plan enrollment. The bill provides for the independent review of the Exchange by the Joint Fiscal Office and requires the Agency of Administration to explore alternatives to the Exchange in the event the General Assembly decides to seek an alternate path to Vermont Health Connect.

Fortunately, it was not all controversy and work this past week. On Wednesday morning, I sang the devotional with the Statehouse Singers (see prior post). And on Thursday evening, after 10 hours on the House Floor, I participated in the annual Cabaret. This fund raising event features skits, jokes and songs performed by representatives, senators, and Statehouse staff, poking fun at each other and our work. I played guitar and sang a solo, the Gun Bill Blues, sang to the tune of Fulsome Prison Blues, and accompanied Judiciary Committee members in a tune about gaining weight over the course of the Session because of eating too many snacks in the Committee room. After a long, tiring day, the event was a welcome respite.

Judiciary Committee Update

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Over the past two weeks, Judiciary has heard testimony related to the Child Protection Bill, S.9. We have focused on adjusting language related to the responsibilities of Mandated Reporters to report to the Department of Children and Families. On one hand, we want to require timely reporting of suspicions of abuse and neglect of a child, but on the other, we want to avoid requirements that are too far-reaching. If the language requiring reporting is too broad, Mandated Reporters could flood DCF with calls to avoid potential prosecution or penalties for failing to report. Such a result would make it far more difficult for DCF to focus on those cases that present clear risks of harm to children. In the end, Judiciary and most witnesses concluded that getting the balance correct will depend less on the precision of the language crafted for the law than on appropriate and continued training of Mandated Reporters.

In its considerations of S.9, Judiciary also has sought the correct balance between reliance on the criminal justice and the child protection systems. The question that has hung over this bill from its introduction in the Senate is whether the legislature should emphasize punishing and deterring behavior that harms children, or emphasize education, treatment, and other services to avoid the harm in the first place. The bill as passed by the Senate emphasized the former, creating a 10-year felony for failure to protect a child. House Health and Human Services shifted the emphasis to the child protection system, eliminating the failure-to-protect felony from the bill and instead increasing the penalties of certain existing crimes. Judiciary has continued the shift away from reliance on punishing caregivers when something goes wrong. It is currently considering eliminating from the bill some or all of the increased criminal penalties that Health and Human Services added. Judiciary anticipates having a vote on the bill early in the coming week.

Judiciary has also taken testimony on S.102, which provides for forfeiture of property associated with certain regulated drug possession, sale, and trafficking violations and with dog fighting. The bill provides two avenues for the State to seek forfeiture of such property, one allowing forfeiture post-conviction and the second allowing pre-conviction forfeiture in certain limited circumstances. Testimony seems to be building to the conclusion that Judiciary should strike from the bill the second avenue that permits forfeiture without requiring a conviction. In addition, the Committee is considering whether the proceeds from forfeiture should, in part, go to law enforcement or whether all proceeds should go to the General Fund. We have heard testimony that allowing proceeds from forfeiture to go to law enforcement would act as an incentive for law enforcement to focus too many resources on those crimes that allow for forfeiture.

In the coming week, House Judiciary will also address amendments from the Senate to two House bills: H.120, which creates a state False Claims Act, and H.105, which criminalizes the nonconsensual distribution of explicit photos or videos.

Healthy Workplaces

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This past week, the House passed the Healthy Workplaces bill, H.187. The law, if it makes it through the Senate, would provide up to 60,000 Vermont employees with at least three days of annual paid sick leave after they have worked at their job for a year or 1,400 hours, whichever comes first. It would also expand mandatory paid leave to five days after two years of employment. H.187 would allow employees to use leave to care for themselves or sick family members.

The bill was sponsored by two legislators who are also small business owners. These sponsors had opposed other versions of such a bill in previous sessions, but felt this bill struck the right balance between the needs of employers and employees. A legislator who is also a doctor emphasized the benefits of the bill to public health, because it would allow parents to stay home with a sick child rather then sending him or her to school and would allow employees in food service industries to avoid going to work ill. The following provides some additional background as to the benefits of this bill:

A Pragmatic, Universal Approach With Employer Flexibility

• The bill creates a framework that allows employers the freedom and flexibility to manage business needs.

• The 1,400 hour waiting period takes into account turnover in industries like food service and construction. To put it in context, a weekend line cook would get one paid shift off after a year of work under H.187.

• Hard-working Vermonters are seeking employer support – this bill lets long-term, year-round employees know they are valued.

• The incremental two year phase-in gives businesses time to adjust.

• Employers have testified that benefits such as these lead to a happier and more stable workforce.

Paid Sick Days Make Our Communities Healthier

• Over 70 percent of food service establishments in New England do not provide paid sick time. Retail and personal care service jobs are a close second. The sectors that come into greatest contact with the public are the least likely to provide paid time off.

• When children go to school sick because their parents cannot miss work, other children and staff are put at risk.

• A 2014 Joint Fiscal Office Cost Benefit Analysis estimated that Vermont would save $5 million dollars in emergency room costs if earned sick days were provided with the understanding from research that people are 5.9 percent less likely to delay routine medical care and catch chronic conditions early if they have access to paid time off from work.

A Modest Step to Support Women, Children, Low-Income Workers

• Roughly 80 percent of the Vermont workforce currently has access to paid time off. The 20 percent that do not – about 60,000 working Vermonters – are disproportionately women earning low wages in multiple jobs.

• 72 percent of Vermont children under 12 live in households where all adults work. Women are more likely than men to stay home with sick children, and are currently much less likely to have access to earned sick days.

• A modest number of paid sick days reduce the trade-off between earning a paycheck and caring for a sick child or visiting the doctor. A recent UVM study shows that Vermont children are 15 percent more likely to have seen a doctor within the past year if their parents have at least three paid days off.

These points and the support of two organizations for which I have a great deal of respect, Vermont Businesses for Social Responsibility and the Main Street Alliance, convinced me that this was a bill I should support.

Firearms Possession Bill Passes House

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This past week, the House passed a bill, S.141, by a vote of 80 to 62. The bill has three main components: (1) it prohibits violent felons from owning firearms, (2) it requires state courts to submit to the National Instant Criminal Background Check System (“NICS”) the names of those whom a court has adjudged to be a danger to themselves or others due to mental illness, and (3) it establishes a process for individuals who are no longer so adjudged to regain their rights to purchase and possess firearms. This is a bill that both respects the Second Amendment and protects public safety.

It was an interesting, although sometimes frustrating debate. Throughout this session I have respected and understood the rationale behind different perspectives even if I disagreed with them. But most of the arguments against S.141 were worthy of little respect as they mostly relied on conspiracy theories, irrelevancies, and misinformation. Those opposing the bill complained that it was born of out-of-state money supplied by Michael Bloomberg (the previous Mayor of New York City and an opponent of the National Rifle Association). A conspiracy theory and, more importantly, irrelevant. The bill had broad support from Vermonters, including many of my own constituents.

Opponents also argued that the bill would lead to veterans declining to seek treatment for ailments such as Post Traumatic Stress Disorder out of fear that doing so would result in their losing their guns. Shamefully, opponents of the bill have obscured the purpose of the legislation and have stoked this very fear. If any veteran declines to seek treatment after this legislation passes, it will not be due to the contents of the law, but to the rhetoric of its opponents. Under the law, seeking voluntary treatment for a mental illness in no way would cause one’s name to be submitted to the NICS. A person’s name is submitted to the NICS only if a court finds by clear and convincing evidence that an order should be issued requiring that individual to enter treatment because he or she is a danger to himself, herself, or others.

S.141 stood on its own merits. During the floor debate, a number of proponents of the bill offered moving and persuasive testimony. One member, a Vietnam veteran, explained that he has received voluntary treatment over the past 30 years in his fight with Post Traumatic Stress Disorder. S.141 would not have applied to him, he noted. Another member closed the debate by telling of his brother who had been adjudged to be a danger to himself but was nonetheless able to purchase a firearm, which he used to commit suicide.

In explaining her vote, another proponent of the bill summed up the issue nicely:

“Vermont has a strong culture of gun responsibility, but giving easy access to violent felons has never been part of that. Federal law already prohibits dangerous people from possessing weapons, but right now aspects of this law can’t be enforced at the state level. We want our state to be a place where a violent felon knows that if he or she has a gun they will be prosecuted. We want the family members of those who have recently been adjudicated as a danger to themselves to know that if their loved one tries to buy a gun at a gun shop, the background check will stop them. We want to be clear that people can recover from mental illness, and that if someone who has been previously adjudicated gets better, there is a process in place so that they can get their rights restored. The bill does all of this, while carefully protecting the right to bear arms.”

So, probably the most controversial bill that we will face this session is behind us. There will, of course, still be disagreements and heated debate when the House takes up other issues such as requiring paid sick leave. It should continue to be engaging over the final few weeks of the session.

Some Q & A Regarding the Gun Bill

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Yesterday, House Judiciary passed out of committee a bill that would restrict gun ownership rights of violent felons and those who are a danger to themselves and others. Check out my April 11 blog post for more details on the bill. The following provides some answers to questions and concerns that I have been receiving from folks regarding the bill.

Q: Will this bill force people to decide whether they want to seek help or treatment and risk losing their right to have a firearm or not get help and keep their rights?

A: No. Seeking voluntary treatment does not lead to submission of a person’s name to the Registry. It is only by way of a court adjudication finding that someone is in need of treatment and is committed to the custody of the Department of Mental Health that a person’s name is submitted to the National Instant Criminal Background Check System (“NICS”). Through such an adjudication, a court may issue an order of hospitalization or order of non-hospitalization. Both such orders require a finding, by clear and convincing evidence, that an individual is a danger to himself, herself, or others.

Q: Will this bill make it almost impossible to have one’s rights restored once someone has been deemed no longer a threat to himself, herself, or others?

A: After an individual is no longer in the custody of the Department of Mental Health (in other words, is no longer subject to an order of hospitalization or order of non-hospitalization), the reason why that individual was put onto the NICS in the first place has been removed. Nevertheless, there remains a risk of relapse of such a person, particularly within one to two years after custody has ended. There are different ways to balance the procedure for regaining one’s rights and the risk of relapse.

The bill passed by the Senate addressed the balance by imposing an 18-month waiting period between the date on which a person is no longer in the custody of the Department of Mental Health and the filing of a petition for relief from disability (to get one’s rights to gun ownership back). The individual would have to show by a preponderance of the evidence that he or she is no longer in need of treatment and that it would not be against the public interest if relief were granted.

House Judiciary amended this provision. It eliminated the 18-month waiting period before a petition can be filed. Instead, the petition can be filed as soon as a person is no longer subject to an order of hospitalization or non-hospitalization. But, the State’s Attorney or Attorney General has six months in which to file an objection to the petition. This, in effect, will provide at least a six-month waiting period. If there is any question about whether granting the petition would increase the risk to the public interest, the State’s Attorney or Attorney General would likely file an opposition. It would thereafter take months for the petition to be resolved in Court. The bottom line is that, practically speaking, there will be sufficient time after release from custody to ensure that an individual has not relapsed and become a danger to himself, herself, or others.

Q: Isn’t this bill redundant with federal law and thus unnecessary? Isn’t this a solution looking for a problem?

A: Vermont is the only state that has not passed such a law. Forty-nine other states did not think having such a law would be redundant or a solution looking for a problem.

In addition, relying simply on the federal law requires reliance on federal law enforcement and prosecutors. Enacting this bill would reduce this reliance, placing additional law enforcement and prosecutorial authority with the State. Moreover, protection of persons and property within Vermont is not necessarily a federal function. Rather, that is a core function of the state. Accordingly, passing this law to assist Vermont law enforcement is, in one view, a state’s rights issue. This should be a pleasing result for federalism fans.

Under current law, when a Vermont law enforcement officer encounters a felon in possession, he or she will either formally or informally refer the matter to the ATF or U.S. Attorneys Office. The federal authorities act on only a small portion of these referrals because their limited resources are focused on interstate cases (e.g. drug gangs). Vermont officials often decide not to refer cases because they know federal officials will not pursue certain cases. Furthermore, they often decline to refer the felon in possession offense because it could lead to the disruptive situation of an underlining crime being prosecuted in state court while the federal felon in possession crime is prosecuted in federal court. The bottom line is that many instances of violent felons in possession of firearms are not prosecuted.

In short, it is reasonable to give state law enforcement and prosecutors the tool to keep guns out of criminal’s hands.

Op Ed and Other Media Related to Bill to Ban Strikes and Imposition

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Aki Soga, the Burlington Free Press Editorial Page editor, wrote an Op Ed article on the unsuccessful attempt in the legislature to ban teacher strikes.  He concluded that “[a]nyone who sees in the defeat of the strike ban provision only an affirmation of the status quo lacks the vision to be a leader in education in Vermont.”

Also, I had the opportunity last week to discuss the vote on my amendment to ban teachers strikes and school board impositions in “Under the Golden Dome,” a program produced weekly during the legislative session.  You can watch the video here.  My clip is toward the end of the video.

Finally, here is a link to a post-mortem on the issue that appeared on the Seven Days web site.

Reasonable Restrictions on Firearm Ownership

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This past week, House Judiciary spent its time off the floor taking testimony and discussing potential tweaks to S.141, An Act Relating to Possession of Firearms. When the Senate considered this bill earlier in the session, it was one of the most controversial pieces of legislation that the General Assembly had before it. The controversy primarily involved inclusion of a provision requiring universal background checks. The Senate passed out a version of the bill that excluded this provision. Nevertheless, House Judiciary has still heard from a lot of people who are opposed to the bill, which restricts ownership of firearms by violent felons and those who are a danger to themselves or others.

This Slope Isn’t Slippery

One of the arguments that I have heard against the bill is that it simply starts Vermont down a slippery slope toward further curtailment of Second Amendment rights. I don’t buy that argument.

One problem with slippery slope arguments is that they avoid the merits of the issue itself, and focus instead on imagined consequences. In other words, they change the subject. To most, the merits of keeping violent felons from having guns is obvious. But to many, the merits of universal background checks are not so obvious. Each idea should be judged on its own merits, and, indeed each has been. The Senate passed out its gun bill excluding the provision requiring background checks because of its questionable merits.

I’ll give you another example besides gun-related legislation. I have heard the argument that allowing marriage between same-sex couples will only lead to allowing marriages between people and their goats. Well, no. The issue was whether two consenting adults have equal rights to get married. It has nothing to do with goats. Support for reform A does not require support for reform B. Someone who believes that the government shouldn’t discriminate against gay men or women by refusing same-sex marriage, does not have to believe that the right to marry should be extended to a man and his goat.

Similarly, one can be in favor of keeping guns out of the hands of violent felons and those who are a danger to themselves or others, while also believing that background checks impermissibly impinge on the Second Amendment protection for the right to own guns.

I will grant that slippery-slope positions are not self-evidently wrong. If the state restricts gun ownership by violent felons and those who are a danger to themselves or others, maybe legislators will be more willing to consider other restrictions on gun ownership. But the opposite could easily be true. After going through the arduous and controversial process to restrict gun ownership by violent felons and those who are a danger to themselves or others, the legislature will be more reluctant to go through that again any time soon to impose other restrictions on gun ownership or will believe it has reacted appropriately to the problem and does not need to impose further restrictions.

Section-by-section Summary of S.141

Section 1: This section establishes a Vermont criminal offense for possession of a firearm by a person who has been convicted of a violent crime. All 49 other states and the federal government currently find this conduct to be criminal. A violation would be punishable as a two-year misdemeanor.

A violent crime is defined to include the following offenses: (1) those involving a subset of “listed crimes,” which is a legislatively-created list of major offenses; (2) sexual exploitation of children; or (3) selling, dispensing, or trafficking significant amounts of illegal drugs where the amount is so great that the penalty is a 10-year felony. A violent crime also generally includes an offense in another jurisdiction comparable to one on this list if the penalty would prohibit a person from possessing a firearm under federal law. “Firearm” is defined the same way as in the federal law, which excludes antique firearms and muzzle loaders.

Section 2: This section makes it more likely that someone who has relinquished firearms due to a restraining order and failed to pay a storage fee will be notified that the firearms are to be sold. Last year in Act 191 (the Fee Bill), the General Assembly created a procedure for a person who is required to relinquish his or her firearms pursuant to a relief from abuse order to store them with a law enforcement agency, an approved federally licensed firearms dealer, or another person. If the applicable storage fee is not paid then the weapon may be sold after a reasonable effort is made to notify the owner of the sale. Act 191 defined “reasonable effort” to mean providing notice of the sale by first class mail, certified restricted delivery. Section 2 of S.141 amends that definition and provides that reasonable notice means notice as provided for in the Vermont Rules of Civil Procedure. This means that notice must be provided through personal service, and only if that proves impossible can notice be provided by mail or by publication.

Section 3: This section requires the Departments of Public Safety and of Mental Health to report on progress in establishing a Vermont version of the New Hampshire Gun Shop Project, an initiative in New Hampshire to reduce the number of firearms-related suicide deaths by helping gun shop owners avoid providing firearms to suicidal persons.

Sections 4, 5, and 6: These sections deal with reporting the names of some people prohibited by federal law from possessing firearms for mental health reasons to the National Instant Criminal Background Check System (known as NICS). S.141 requires Vermont to join the 38 states that currently do some version of this type of reporting.

Section 4 relates to criminal proceedings and requires that a report be made if a defendant is found not responsible for a crime by reason of insanity or incompetent to stand trial due to a mental illness and is committed to the Department of Mental Health after a determination by the Criminal Division of the Superior Court that the person is a danger to himself or herself or others. Section 6 relates to civil commitment proceedings and requires that a report be made if a defendant is subject to a hospitalization order or non-hospitalization order after the Family Division of the Superior Court determines that the person is a danger to himself or herself or others. The reports to the NICS are confidential and only include information sufficient to identify the person, the reason for the report, and a statement that it is made in accordance with federal law. The person who is the subject of the report is also provided with a copy, which must inform the person that he or she is thereafter prohibited from possessing a firearm. Section 5 is a technical provision that permits these reports to be made without violating state confidentiality laws.

Section 7: Section 7 establishes a process through which a person who has been prohibited from possessing a firearm for mental health reasons can petition the Court to have his or her name taken off the NICS database if he or she is no longer a danger to himself or herself or others. The Court considers the circumstances regarding the petitioner’s case, including his or her mental health and criminal record, character evidence, and statements from known victims.

Section 8: Since the bill is prospective and only applies to court findings of dangerousness made after the effective date, Section 8 provides a mechanism to report the names of those who have been previously found dangerous by a court and for that reason are currently in the custody of the Department of Mental Health when the bill is enacted. Section 8 requires that by October 1, 2015, the Department must report the names of those persons to the Court Administrator, who then reports them to NICS in the same manner as will be done for other proceedings going forward.

Section 9: This section provides that the violent criminals in possession, fee for storage, and New Hampshire Gun Shop Project provisions are effective July 1, 2015, while the provisions related to mental health reporting are effective October 1, 2015.

The Committee will likely be voting on the bill early this coming week.