Judiciary Wrap Up

Although Vermont is one of the safest states in the country, its citizens still rightfully expect the legislature to continue to prioritize public safety.  In considering bills that address public safety, the Judiciary Committee must also ensure that the law does not unduly infringe upon individual liberties and freedoms.  The Committee seeks to fulfill Vermonters’ expectations that they will have ready and equitable access to justice, that individuals will receive due process if their rights and liberties may be curtailed, and that the law will protect vulnerable citizens.  In addition to balancing these often-competing goals, the Committee focuses on many other aspects of the State’s judicial and legal affairs.

This session, to improve public safety, the legislature enacted a number of laws addressed by the Judiciary Committee.   Act 1 strengthens aspects of the Sex Offender Registry, ensuring that a sex offender reports updated information for the Registry to the Department of Public Safety prior to his or her release from a correctional facility. H.105 makes it a crime to disseminate sexually explicit photographs or videos of individuals online without their consent and with intent to harm, even if the subject had consented to the taking of the photograph or video. S.102 assists law enforcement in its efforts to combat drug trafficking by modifying rules related to the forfeiture of assets used in perpetrating certain drug-related crimes. The Act also expands forfeiture rules related to dog fighting. Act 14 prohibits violent felons from owning firearms and 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.

While addressing these efforts to improve public safety, the legislature was careful to protect individual liberties. S.13 (a separate bill than Act 1) ensures that Sex Offender Registry information listed on the Internet is accurate. It also provides a mechanism for individuals to challenge the accuracy of information or their inclusion on the Registry. While S.102 allows forfeiture of assets used in the perpetration of certain crimes, it does not allow for such forfeiture to occur unless an individual is actually convicted of that crime. This contrasts with the federal forfeiture law, which allows for forfeiture when an individual is charged with certain crimes, whether or not convicted. Act 14 provides a procedure for individuals to have their name removed from the NICS database.

Criminal convictions often result in consequences for Vermonters beyond court-imposed penalties and sentences, particularly for felons. For example, even after serving their time and paying any imposed penalties, individuals who have been convicted suffer from an inability to obtain housing or employment due to their criminal records. In addition, incarceration for non-violent offenders is often costly and counterproductive.

Collateral consequences and counterproductive incarceration are particularly problematic for juvenile offenders. Current science shows that the brain continues to change and mature throughout childhood and adolescence. Due to the stage of their brain development, adolescents are more likely to act on impulse and misread or misinterpret social cues, and less likely to think twice, change their mind, or pause to consider the consequences of their actions. They are, in short, more likely than adults to make bad decisions and to violate criminal law. So long as their record follows them, juvenile offenders will suffer the consequences of their errors long after they have reached adulthood and completed the court-imposed punishment for the crime.

The legislature has enacted law that seeks to alleviate the problem of collateral consequences and counterproductive incarceration, particularly for juveniles. S.115 establishes a quicker path to expunging their criminal record for individuals who committed their crimes when younger than 25. H.62 prohibits sentences of life without parole for a person who committed his or her offense as a minor. Each of these bills await the Governor’s signature. The House also passed H.95, which seeks to ensure that States Attorneys file more cases in the Family Division of state court rather than in the Criminal Division when those cases involve juveniles. If filed in the Family Division, the juvenile’s record will not be public, thus collateral consequences from the conviction will not travel with him or her into adulthood. The Senate did not act on this bill in this session.

In addition, the Judiciary has taken testimony on a bill that seeks broader reform of Vermont’s criminal justice system. The bill would, among other changes, reduce the number of crimes punishable as felonies; eliminate jail time for non-violent offenders; prevent people from being kept in jail past the end of their sentence due to lack of housing; expand parole eligibility for individuals who have serious medical conditions, were sentenced for an offense committed as a juvenile, or are 65 years of age or older; and eliminate incarceration for violations of parole conditions that are not new crimes. Although the bill was not advanced in this session, such issues will likely be at the forefront of Judiciary’s work in the next session, when it continues to seek to rationalize the penalties for the various crimes in Vermont law, reduce unnecessary and costly incarceration rates, and minimize the collateral consequences of conviction.

During the current session, Judiciary also worked to improve protection of children. The Committee assisted with a major initiative of the General Assembly in light of the tragic deaths of two infants last summer. It took testimony on aspects of S.9 that related to criminal justice. Further, in H.86, the legislature enacted amendments to the Uniform Interstate Family Support Act, which assists with the enforcement of child support orders regardless of where a child lives.

The legislature also enacted a State False Claims Act (H.120), which provides for penalties for those who knowingly submit false or fraudulent claims to the State. Full enforcement of this law should bring revenues to the State while also providing a further deterrent to those who would defraud the government. Addressing a separate type of fraud, the legislature also amended laws related to home improvement. Act 13 makes it easier for prosecutors to prove that a contractor has engaged in home improvement fraud.

In short, the Judiciary Committee had a busy and productive session.

Difficult Decisions

During the course of this legislative session, I have had to make many decisions on how to vote, both in the Judiciary Committee and on the House floor. Many of those decisions have been relatively straightforward. Most of the bills have passed out of the Judiciary Committee on unanimous votes, and many have passed the House unanimously or nearly so.

Decisions on other votes, however, have been more difficult. Two such votes occurred this week, one on a bill to allow voter registration on the same day as voting and the other on a bill to eliminate the philosophical exemption for vaccination for children entering school.

Proponents of the same-day voter registration bill argue that voting is a fundamental right and any barriers to the exercise of that right should be eliminated. Easing the way to vote should bring more people to the polls, and a strong democracy depends on citizen participation. But others are opposed, claiming that same-day registration would make it too easy to register and vote, resulting in increased voter fraud. Elections tainted by voter fraud would undermine the very democratic ideals that free and open elections are supposed to serve.

The bill to eliminate the philosophical exemption for vaccination has been one of the more divisive of the session, as it involves the competing rights of individuals to make health care decisions and rights of a community to be protected from infectious diseases. Proponents and opponents of the philosophical exemption are passionate about the issue.

Proponents of the exemption allege that vaccines are risky and can harm children; it is too difficult to obtain a medical exemption from vaccination; vaccine manufacturers are not liable for the damages they incur and have little incentive to ensure the safety or effectiveness of their vaccines; and the state already has a high vaccination rate (94-98%) and a low rate of invocation of the philosophical exemption. They also assert that removing the exemption takes away the freedom and rights of parents to make educated decisions for their children in a situation where there is no imminent threat that requires the government to intervene.

Opponents of the exemption argue that scientific evidence overwhelmingly supports the safety and favorable risk-benefit ratio of vaccine administration. They reason that philosophical exemptions are associated with clusters of unvaccinated children and outbreaks of vaccine-preventable diseases; our current Vermont law not only contributes to rising rates of under-vaccinated children, but also puts others at risk, including children and adults with diseases or treatments that impact their immune system and those too young to be vaccinated; children, elderly, and immuno-compromised patients deserve to live in a place made safer by higher vaccination rates; parents do not have a right to put other children at risk by not vaccinating their own children; and once-vanquished diseases such as pertussis and measles are resurging as a result of declining vaccinations. In short, they assert that achieving high rates of vaccination in schools is a public health imperative to which individual choice should give way.

The decisions I had to make on these bills provide an opportune time to elaborate on my decision-making process in the legislature. There are many factors that go into my thinking when I decide how to vote.

One consideration is certainly the input that I receive from constituents. I do take into consideration the views that constituents express when they contact me or meet with me at my weekly sessions at the Panera on Shelburne Road. When I receive input from constituents, I do not simply count the pros versus the cons on the issue. I do not let the squeakiest wheel control my deliberation. Rather, I consider the arguments that constituents make and review the facts and supporting materials that they refer me to in order to arrive at my own conclusions.

Nevertheless, what my constituents might or might not think about an issue can only go so far in influencing my vote. It would not be possible for me to cast every vote in the legislature as the majority of my constituents might want me to in part because I simply cannot determine what that majority might think on each issue. Doing so would require me to poll District 7-1 each time a decision has to be made, which, of course, would be extraordinarily difficult if not impossible. Occasionally, however, a state-wide poll may be available on an issue, which can give a sense of where the broader community falls on a particular issue.

When considering certain bills, I also reach out to community members who I know have an interest in or expertise on an issue. For example, I spoke with Tom DiPietro, South Burlington’s Deputy Director of Public Works, to learn more about the city’s interests in the water quality bill the House considered earlier in the session. I also spoke with Donna Kinville, the South Burlington City Clerk, about same-day voter registration. I do not necessarily follow all of the advice that I receive from these community members, but I rely on them to help me make an informed decision.

On bills before the Judiciary Committee, I have the opportunity to gain detailed knowledge on the issues involved. The committee takes testimony from witnesses with various expertise, experiences, and viewpoints and committee members have the opportunity to ask them questions. We review materials that witnesses provide and that we locate through our own research. We receive guidance from attorneys of the Legislative Council and economists from the Joint Fiscal Office. In short, we become well versed in the issues related to the bills over which the Judiciary Committee has jurisdiction.

Because the issues that the legislature addresses are so varied, complicated, and numerous, it is not possible to delve as deeply into those bills that come through other committees. Accordingly, I must exercise a certain amount of deference to the judgment of the committees that investigate in depth the issues within their jurisdictions. This does not mean that I simply accept their judgments, although unanimous support for a bill from a bi- or tri-partisan committee does carry weight as to whether I will support its conclusion. To the extent possible, I seek to verify other committees’ conclusions and weigh the counterarguments. In doing so, and when I feel I need more information on the issue, I will also consider the viewpoints of experts and other witnesses from whom the committees have heard.

Typically, by the time a bill reaches the House floor and we are called upon to vote, my position on a topic has solidified. On other occasions, the debate on the House floor may crystalize an issue on which I am still wavering.

An additional factor that may influence my decision is politics. As a freshman legislator, I am still learning how this factor plays out. To date, I have not felt direct pressure from the leadership of the House or the Democratic Caucus to vote in a particular manner. But I also know that if I constantly vote against the majority, my ability to accomplish work on behalf of my constituents will be diminished. This session, I have voted against the party line on occasion. I sponsored an amendment to ban strikes and imposition in the context of teacher collective bargaining, despite the general opposition to this idea by the Democratic Caucus. But this has been one of the few instances where my own views have run counter to the party.

My votes this week on the bill that will allow residents to register to vote on election day and the bill that will eliminate the philosophical exemption for vaccination for children entering school provide examples of how I reach my voting decisions. I did not hear from any constituents on the same-day voter registration bill. I did, however, hear from the South Burlington Town Clerk, who opposed the bill. Primarily, she was concerned about the increased chances of voter fraud that she believes the bill will create. To alleviate this concern, she urged that individuals seeking same-day registration have an ID or other evidence of their residence.

I considered her input in my deliberations. The Government Operations Committee had also considered her input, which she had delivered in testimony, along with the input of other town clerks and the Vermont Municipal Clerks and Treasurers Association. The Committee sought to address these concerns by pushing off the effective date of the bill to January 2017 and requiring a study that would consider, among other issues, how other states with same-day voter registration address what type of proof of residency should be required by individuals seeking to register on election day.

In considering how to vote, I reviewed the rules related to voter registration in Vermont and the voter registration form. That form requires an individual to affirm that he or she meets the requirements to vote in the district: a United States citizen, a resident of the town in which he or she wishes to vote, and at least 18 years old. The individual must also take a voter’s oath. The form makes clear that giving false information as to one’s qualifications to be registered to vote in the town can result in penalties of up to $10,000 or imprisonment for not more than 15 years. I felt that the requirements and warnings set forth in this form would act as an adequate disincentive to most individuals who might consider trying to register fraudulently. I also reviewed reports and other evidence that had been provided to the Government Operations Committee and were available on its website that indicated the very low incidence of voter fraud.

From this review and from listening to the debate on the House floor, I was satisfied that the minimal risks of an increase in voter fraud did not outweigh the benefits of removing barriers to an individual’s ability to exercise his or her fundamental right to vote. I accordingly voted for the bill, which passed the House. In many states, Republican-controlled legislatures are introducing, not eliminating, barriers to voting, with the likely result of disenfranchising many impoverished and under-represented citizens. I’m proud that Vermont is taking a different approach.

In considering how to vote on the bill to eliminate the philosophical exemption, I considered the viewpoints of and facts offered by constituents, experts, and the Health Care Committee, and points made during the floor debate and in a packed public hearing. On this issue, I received more emails and calls from constituents than any other issue that has come before the legislature this session. All but one of these constituents urged me to vote to remove the philosophical exemption. I received emails from many other Vermonters including South Burlington residents outside District 7-1, many who sought to keep the exception in place. I also noted that a state-wide poll shows that over 70% of Vermonters support eliminating the exemption.

I reviewed materials that individuals referred me to and those that were available on the Health Care Committee’s website. On the one hand, I did empathize with many of the points that proponents of the exemption advanced, including their desire to make individual decisions that they viewed as in the best interest of their children. I was most troubled by the apparent difficulty that individuals face when they try to obtain medical exemptions to vaccinations.

On the other hand, I accept the scientific consensus that vaccines are safe and effective, a high vaccination rate is necessary to obtain so-called herd immunity in order to protect vulnerable individuals who are unable to be vaccinated, and the risks of harm from vaccinations are outweighed by the risks from infectious diseases that vaccinations protect against. I also was influenced by the fact that Vermont has one of the lowest vaccination rates in New England and that other surrounding states without the philosophical exemption have higher vaccination rates. The testimony of Vermont Health Commissioner Harry Chen and from a number of respected doctors supporting elimination of the exemption carried significant weight. Also, the bill modifies the provision relating to obtaining medical exemptions, making such exemptions easier to obtain. Moreover, by eliminating the philosophical exemption, doctors will need to consider patients’ requests for the medical exemption instead of simply advising them to exercise the philosophical exemption. Finally, during debate, I felt that those who supported eliminating the exemption were able to effectively answer all of the arguments in favor of keeping the exemption in place.

Ultimately, I was swayed by the view that individual liberties must be balanced against the responsibilities that individuals have toward the community in which they live and so I voted for the bill to eliminate the exemption, which bill passed the House. Having one’s children vaccinated before they enter school, unless one receives a medical exemption or invokes a religious exemption, is part of the responsibility that parents should undertake for the sake of the community’s public health.

These decisions were not easy, but in the end I think that they were in the best interest of my South Burlington constituents and Vermont.

I believe that voters gave me the honor of representing them because they expected that I would use my best judgment on the issues that are important to South Burlington and Vermont. They expect that I will evaluate the facts and policies that lie beneath the problems the legislature is asked to resolve, consider the proposed solutions and the consequences of those proposals, listen to and understand the input I receive from constituents, and use my experience and intelligence to arrive at what I believe to be the best outcome.

Judiciary Committee Update

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.

Some Q & A Regarding the Gun Bill

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.

Reasonable Restrictions on Firearm Ownership

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.

Appropriations and Revenue Bills

I have found the Vermont Statehouse to be largely nonpartisan. This is most evident within committees, which for the most part put politics aside and try to derive the most workable solutions to the problems they face. The Judiciary Committee, on which I serve, has so far this session passed twelve bills out of committee, each on 11-0 votes.

This past week, the Appropriations Committee on an 11-0 bipartisan basis voted out of committee the budget bill for fiscal year 2016 (H.490). The nonpartisanship abruptly ended. However, once the whole House took up this bill along with a revenue/tax bill (H.489), which had passed out of the Committee on Ways and Means on a party-line 8-3 vote.

Before the third reading of these bills, a group of Republicans offered amendments plainly aimed solely at scoring political points, not at trying to resolve the underlying issues facing the legislature. They sought to cast themselves on the side of lower- and middle-income Vermonters by suggesting a reduction in taxes on those making less than $60,000 and an increase in spending on low income heating assistance. They did not, however, provide offsetting additional taxes on those earning higher incomes or realistic spending cuts.

In any event, the budget and revenue bills did eventually pass with some bipartisan support and without the Republicans’ amendments. And despite the political game playing that occurred, I do recognize the benefits of having a minority party that acts as a check on the majority. Further, through trying to reach compromise among the parties – the Democrats, Republicans, and Progressives – the legislature as a whole can achieve a better solution. In order to reach compromise, though, each party is likely going to have to accept some outcomes or positions that they find disagreeable.

Indeed, this was certainly the case with both the revenue and budget bills. I initially found aspects of the bills to be objectionable, but those aspects were the price of passing bills that, overall, are steps in the right direction for fiscal sustainability in Vermont. Also, as I delved more deeply into the explanation of those aspects of the bill, what I found alleviated my concerns enough so that I was comfortable voting for the bills.

As to the revenue bill, I disliked its apparent potential disincentive to charitable giving. Among other changes to the tax code to raise revenue, the bill caps itemized deductions, including for gifts to charitable organizations, at two and a half times the standard deduction amounts (a couple filing jointly, for example, could still deduct $31,500). Because these deductions provide an incentive for giving, a number of nonprofit organizations objected that scaling them back would hinder their fundraising.

As I learned, though, the actual impact on charitable giving would likely be very limited. Most of the tax benefit from a charitable contribution comes from the federal deduction, which is two to three times more valuable than the state benefit. It would make little financial sense to stop contributing to charities because of the limitation of the state deduction while foregoing the more valuable federal deduction.

People donate for a variety of reasons, not simply to receive a tax deduction. In fact, only 30% of Vermonters itemize their deductions but many more than that contribute to charities. The cap on deductions will affect a small group of taxpayers, resulting in a tax increase for slightly more than 6% of filers.

In effect, the cap on deductions, as well as other aspects of the revenue bill, results in a more progressive income tax. Given that the income growth for the top two income brackets in Vermont has grown significantly over the past several years, while middle class income has for the most part stagnated in the state, adding progressivity to the tax system made good sense to me.

I had a number of issues with the cuts proposed in the budget bill, but my major concern related to a $6 million cut in funding to the Low Income Heating Energy Assistance Program (“LIHEAP”). During the floor debate, however, I learned that the effect of this cut should not be dramatic. LIHEAP is a federal program. Up until recently, Vermont supplemented the program by providing state dollars through the Emergency Board, which would consider the need for additional funding in the fall after federal dollars for the fund had been designated. Two years ago, the legislature instead appropriated money for LIHEAP up front rather than waiting until it understood the extent of the federal investment in the program. The budget bill will return the state to the previous procedure.

Further, as the economy has improved and as fuel costs have decreased, the pressure on LIHEAP’s resources have decreased. As of the end of February, LIHEAP still had $3 million available if it needed a crisis grant, which is an additional benefit provided to households experiencing a heating crisis. This amount, if unused, will roll over to next year’s program. Finally, an amendment was approved that will designate up to $5 million of any general fund surplus at the end of this fiscal year to LIHEAP. In short, low income Vermonters are not at risk of losing the LIHEAP assistance that they may need next winter.

Having largely addressed my major concern with the budget bill, I was able to focus on its more positive features. First, in conjunction with the revenue bill, it closes the $113 million budget gap that the state was facing in the next fiscal year. Second, the FY 2016 budget is not an end point but part of a long term process of fiscal change to achieve a balance between the state’s spending and its expected revenue growth rates. Spending was projected to grow by five percent annually, while the state’s domestic product is projected to grow by only three percent annually.

As the Appropriations Committee has explained, to meet this balancing goal, the budget bill:

1) Reduces reliance on one-time funding. In the last fiscal year, the budget relied on $53 million in one-time funds. This budget includes $25 million in one-time funds and next year’s budget is projected to include just half that.
2) Reduces the rate of spending growth. To this end, the budget includes a number of efforts to reduce long-term spending in corrections, public safety, buildings, and other areas.
3) Sets forth two additional longer-term goals: to move toward budgeting for less than 100% of projected revenues and to explore a two-year budget, allowing time in the second year to focus on results-based accountability, evidence-based budgeting, and structural reforms.

Slower than anticipated economic growth, continued federal reductions in programs, and a growing demand for state services have created a difficult budget environment. The FY 2016 budget that was passed on to the Senate starts a multiyear process that will bend the spending curve toward long term sustainability. For more on these bills, I would suggest reading April Burbank’s recent article in the Burlington Free Press.