Judiciary Committee

Judiciary Committee Update

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In the past week, the House passed a variety of bills that had been voted out of the Judiciary Committee. One such bill would ensure that States Attorneys file cases involving juveniles in the Family Division of state court, where certain confidentiality and other procedural protections are in place, rather than in adult criminal court, which lacks such protections (H.95). Another bill would make it a crime to disseminate sexually explicit photographs or videos of individuals online without their consent, even if the subject had consented to the taking of the photograph or video (H.105 as amended). A third bill would make it easier to prosecute home improvement fraud (H.483).

The Judiciary Committee took testimony on a bill passed out of the Senate that would modify procedures related to placement on the Sex Offender Registry (S.13). Currently, the Department of Public Safety administers the Registry, making decisions as to the posting of an offender’s information to the Registry before his release from incarceration. The bill would instead have the court make determinations related to an offender’s inclusion on the Registry at the time of sentencing, deciding whether the offender should be placed on the Registry and, if so, for how long. In addition, the bill provides a procedure to allow individuals to challenge the information on, or to request removal from, the Registry. These changes were prompted by audits of Registry’s error-rate, which were performed to determine whether address information would be included on the Internet version of the Registry. The Committee is considering what Registry error rates would be acceptable to allow an individual’s address information to be placed on the Internet Registry, which would be widely available to the public.

In addition, the Committee has taken up a bill relating to criminal justice reform (H.221). This 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 at 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. The overall aim of the bill is to reduce unnecessary incarceration and thus reduce Vermont’s prison population and its associated costs. It represents a start in updating the 19th and 20th century solutions in Vermont’s criminal code that are currently used to address our 21st century problems.

Judiciary also took testimony on the enforcement provisions of the water bill (H.35). It has made recommendations to the Committee on Fish, Wildlife, and Water Resources suggesting changes to those provisions of the bill. In addition, Judiciary started its consideration of the Child Protection Bill, (S.9), participating in a joint hearing with the Human Services Committee.

Judiciary took testimony from and worked with the State Court Administrator and Chief Superior Judge to evaluate efficiencies that could lead to savings in the Justice System. For example, the state courts are considering an initiative to start conducting arraignments by video conferencing, which would produce savings from decreased need to transport defendants and for Court security. The Committee provided its various proposals related to Court savings to the Committees on Ways and Means and Appropriations.

False Claims and Young Dems

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It has been a busy week in the legislature after returning from the Town Meeting Week recess. The House passed a bill, H.40, that sets a renewable energy standard for Vermont, with emphasis on utilities meeting goals for renewable energy and efficiency. The Judiciary heard extensive testimony on enforcement provisions included in the water cleanup bill, H.35. In addition, Judiciary passed out of committee three bills: H.95, which makes incremental progress toward having cases against juvenile offenders brought more often in the family rather than the criminal division of Superior Court; H.105, which makes it a misdemeanor to disclose sexually explicit images without consent (so called revenge porn); and a committee bill that strengthens the ability of the Attorney General to bring cases against contractors for home improvement fraud.

Today, the House passed a bill, H.120, that I helped report out on the House floor yesterday.

Reporting Out H.120

The bill proposes to create a Vermont False Claims Act — an anti-fraud law modeled on the Federal False Claims Act (“FFCA”). The FFCA was first enacted in 1863 to combat fraud by suppliers of goods to the Union Army during the Civil War. Since that time, the FFCA has been amended several times to broaden its scope and enhance its ability to combat fraud against government funds in all sectors. Starting in 2009, the federal government has used the FFCA to recover over $23 billion in cases related to government programs.

The Vermont False Claims Act would provide for penalties for anyone who knowingly submits false or fraudulent claims to the State’s government. It would also authorize a person who has evidence of fraud, called the relator, to bring action on behalf of the State against those who commit fraud against government programs. Any recovery is refunded to the State, and in certain circumstances such as those involving Medicaid, to the federal government. Relators are eligible to collect a percentage of the funds recovered as an award for having rooted out such fraud.

The federal government has had such success in combating fraud and abuse with the FFCA that it created incentives in the Deficit Reduction Act (“DRA”) of 2005 for states to enact anti-fraud legislation of their own. These incentives relate specifically to recovery in cases of Medicaid fraud. The Medicaid program is funded jointly by the federal government and each state’s governments. Normally any recovery of funds fraudulently obtained under the Medicaid program are returned to the federal and state governments proportionally to the shares that each pay into the program. States that enact DRA-compliant legislation are qualified to receive a ten percent increase in their share of any amounts recovered under these laws. As a result, the majority of states have enacted some form of a False Claims Act.

If H.120 is ultimately enacted, Vermont’s share of Medicaid fraud recovery will increase from 46% to 56%. The financial incentive would allow Vermont to compensate Relators, while ideally detecting, enforcing, and recovering a greater percentage of the fraudulent claims filed in the state.
Enactment of the bill would have a positive impact on revenue for the State. The Joint Fiscal Office estimated that, through the law, Vermont could recover at least $280,000 dollars annually.

Earlier this week, we were visited by members of the South Burlington High School Young Democrats. I introduced the group from the floor of the House and the four South Burlington representatives chatted with them about our work. Here we are with the Young Dems.

Young Dems Visit the Statehouse

Town Meeting Day 2015

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Today is Town Meeting Day in South Burlington, and tomorrow is Election Day.  I prepared a summary of my Committee’s activities so far, as well as other relevant legislative updates, as a handout for my constituents on Election Day.

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False Claims Act and Other Judiciary Committee Work

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In the Judiciary Committee, we continued to review H.120, which proposes a state False Claims Act. The basic purpose of the Act is to protect public funds, and the state stands to collect significant money should it enact the law.

The Act would improve the state’s ability to recover penalties from businesses and others who defraud state government. It would help detect fraud by providing incentives to individuals, known as relators, to bring actions against companies that have made false claims in their dealings with the state.

H.120 is modeled after the federal False Claims Act, which has resulted in the recovery of billions of dollars from defendants. The federal law is frequently used to address Medicaid fraud, including in Vermont. Because Medicaid is a joint federal and state program, approximately 46% of any recovery in such actions is shared with Vermont. To give states an incentive to enact their own False Claims Act, and thus increase enforcement, the U.S. Congress has provided that any state adopting such an act would receive an additional 10% of any funds recovered. Judiciary has heard from various interests and, with certain adjustments to the bill, most testimony has favored enactment.

Judiciary also heard testimony on H.95, relating to jurisdiction over delinquency proceedings by the Family Division of the Superior Court, and H.105, relating to the online dissemination of sexually explicit photographs or videos of individuals without their consent. In the coming week, the committee will consider redrafts of these bills.

In addition to false claims, delinquency, and “revenge porn,” the committee took up H.103, which would add psychological abuse as a ground for obtaining a Restraint From Abuse order. Although recognizing the concerns related to such injuries, testimony on behalf of the Judicial Branch and other witnesses emphasized the great difficulty in basing emergency restraining orders on allegations of psychological abuse.

Also, this week I joined the basketball caucus, a Friday early morning get-together at Montpelier’s Recreation Building of eight to twelve legislators and other Statehouse stalwarts. We have real jostling for advantage and elbows flying on the court for an hour in advance of the verbal jostling that might occur on the House floor later in the day.

“Under the Golden Dome”

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Yesterday I had the opportunity to share my views in “Under the Golden Dome,” a program produced weekly during the legislative session and named after the distinctive gold leaf on the dome of the Vermont capitol building.  In the program, legislators discuss current events in the State House.  I spoke about the effort to improve water quality in Lake Champlain as well as recent undertakings by the Judiciary Committee.  You can watch the video here.  My portion begins five minutes and twenty-seven seconds into the video.

Week Five – An Update on Judiciary Committee Matters

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The past week in the legislature has been a full one on many different fronts. I worked on issues that came before the House Judiciary Committee, tracked the action on education funding reform, introduced my own bill related to collective bargaining between school boards and teachers associations, continued to follow potential legislation addressing the cleanup of Lake Champlain and climate change, and tried to continue to be aware in a general sense of the many other issues that are coming before the legislature.

Over the past two weeks, the House Judiciary Committee has heard testimony on and delved into issues related to juvenile justice. It considered H.62, which would prohibit sentences of life without parole for a person who committed his or her offense as a minor. Currently no inmates are serving such a sentence in Vermont. Nevertheless, enactment of the bill would recognize that, because their brains are not fully developed, juvenile offenders are less culpable and have the unique ability to be rehabilitated. Eliminating this harsh sentence would not excuse a juvenile’s behavior, but would provide the opportunity for such an offender to demonstrate rehabilitation to a parole board.

House Judiciary also considered H.95, which relates to jurisdiction over delinquency proceedings by the Family Division of the Superior Court. The objective of the bill is to channel more cases involving juveniles into the Family Division of state court, where certain confidentiality and other procedural protections are in place, rather than adult criminal court, which lacks such protections. The Committee received mixed testimony, the primary concern being whether the Family Division would have the resources to hear these additional cases. Currently, the judicial branch, and in particular the Family Division of state court, lack sufficient resources to keep up with caseloads that have been increasing due to the fallout from the opiate addiction problem in Vermont. Accordingly, we are paying close attention to this resource crunch when considering bills that would expand the number of cases that come before the state courts, particularly the Family Division.

During the course of hearing testimony on these bills, the Committee received interesting and enlightening testimony related to brain development. Current science on this topic supports our efforts to ensure that Vermont’s criminal justice system is appropriately handling juvenile offenders.

The Committee also considered H.105, which would amend the State’s laws related to voyeurism to impose criminal sanctions on individuals who disseminate sexually explicit photographs or videos of individuals online without their consent, even if the photograph or video itself was taken with consent – so-called revenge porn. Websites created specifically for this type of pornography sometimes include a victim’s name, address, and links to social media profiles with the images, and some websites charge a fee to have the materials removed. H.105 is different than laws adopted in most other states in that it also imposes sanctions on dissemination of digitally-altered sexually explicit images of another person without their knowledge and consent. The Committee will hear additional testimony in the coming week, including testimony addressing concerns related to First Amendment protections, particularly with respect to digitally-altered images.

House Judiciary also voted H.86 out of committee. H.86 will amend the Uniform Interstate Family Support Act (“UIFSA”), originally enacted in Vermont in 1996. The Act sets forth jurisdictional rules and determines which state’s law applies when more than one state is involved in establishing, enforcing or modifying a child support or spousal order, or is establishing a child’s parentage. UIFSA requires that every state defer to child support orders entered by courts of the child’s home state. Modifications to a support order may occur only in the home state unless the child and parents no longer live there. Custodial parents may request either directly or through the state agency responsible for child support that another state enforce the support order. I will take on the responsibility of reporting out this bill to the full House this coming week. That involves explaining the bill on the floor of the House and responding to any questions.

In addition to my work on the Judiciary Committee, this past Thursday I introduced H.102, “an act relating to labor relations for teachers and administrators,” which is a bill that I have worked on since early December. In an article that will be published this Thursday in The Other Paper, I describe my work on that bill. I’ll post the article next week.

On a lighter note, this past week I discovered that the Statehouse Cafeteria serves up excellent homemade chocolate chip cookies. I already knew that their chef makes the best cake doughnuts in Vermont, if not in all of New England. I, however, am trying to behave and keep my consumption of these delights to a minimum or else I will put on an extra ten pounds by the end of the session.

First Four Weeks in the Legislature

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My first four weeks in the Vermont House of Representatives have been illuminating, engaging, and energizing. I am quickly learning the protocols and procedures of Vermont lawmaking and familiarizing myself with the many challenges facing the legislature this session.

The Vermont General Assembly is considering a number of complex and potentially divisive issues, including child protection, education governance and funding, health care reform, production of a balanced budget for the next fiscal year, Lake Champlain cleanup, job growth, marijuana legalization, and mandated universal background checks for gun purchases. I am trying to keep tabs on these and other issues. Nearly seven hundred bills will likely be introduced during this session, though only a small percentage of those will actually become law.

I have jumped right into my duties on the House Judiciary Committee, co-sponsoring two pieces of legislation related to child support. One bill, H.85, would allow the Office of Child Support (“OCS”) to notify individuals electronically of administrative actions regarding enforcement of support orders. This bill is currently stalled as OCS reconsiders its approach after the Committee expressed a number of concerns at a hearing on the bill earlier this week. The second bill, H.86, would extend the Uniform Interstate Family Support Act to other countries that are members of a convention signed in 2007. The Committee will hear further testimony on that bill next week and may vote to send it to the House floor. I expect that it will pass the House, then move to the Senate for consideration. The bills I sponsor appear on my House Legislative web page here.

The Judiciary Committee has broad jurisdiction and deals with myriad issues. Bills already before the Committee involve adverse possession, transfers of property to minors, prohibition of life sentences without parole for minors, and jurisdiction over delinquency proceedings in the family court. My legal background has proved to be invaluable in understanding the issues before the Committee and in interpreting the language of proposed legislation.

With eight out of eleven members new to the Committee, we spent time during the first weeks of the session familiarizing ourselves with the issues, laws, and governmental and other organizations that come before it. Among others, we heard introductory testimony from Vermont’s Attorney General and Defender General, the Chief Justice of the Vermont Supreme Court, the Executive Director of the Vermont Bar Association, the Commissioner of the Department of Children and Families, the State’s Attorneys’ Office, several legislative liaisons from law enforcement, and a number of nongovernmental organizations. Here is a link to the Committee’s web page and its daily agendas.

One presentation before the Committee was particularly surprising and disturbing. Yesterday, we heard from officers of the Department of Homeland Security, the U.S. Border Patrol, and the Vermont State Police on matters related to human trafficking; here is a link to a news story on the topic. We learned that trafficking of women for prostitution is a growing problem in Vermont and is frequently linked to the drug trade and addiction. We are not likely to see any bills on the issue this session; the State Police Officer specifically said that law enforcement does not want to see any changes to the law, as it currently provides the correct framework for their efforts. He did, however, emphasize that the legislature needs to continue to provide resources for addiction treatment to help the victims of human trafficking.

Last week the House passed the first bill, H.16, that was voted out of the Judiciary Committee this session. H.16 requires certain inmates to report to the Sex Offender Registry before their release from a correctional facility. It specifically addresses a small number of offenders who are “maxing out,” or leaving a corrections facility without any further supervision or contact with the Department of Corrections (“DOC”). This was what is called a technical correction bill because it merely codified current practice, though the DOC and others testified that it is best to have it clear in the law.

A bill to which the Committee will likely give significant attention started in the Senate and should arrive on House Judiciary’s doorstep in mid-February. S.9 is a multifaceted bill addressing child protection matters. The bill came out of a joint committee that met before the session started following the deaths last year of two young children in families that the Department of Children and Families were working with. The House Judiciary Committee participated in joint hearings with the House Human Services, Senate Health & Welfare, and Senate Judiciary committees to receive background information on S.9.

Besides my duties on the Judiciary Committee, I have been working on a bill related to collective bargaining between school boards and teacher associations. I worked with the Office of Legislative Council to put my ideas related to the fact finding process and arbitration into a draft bill and then lobbied other legislators to co-sponsor the bill with me. It will be introduced next Tuesday and I am to present the concepts behind the bill to the General, Housing & Military Affairs Committee, which takes up bills related to labor laws. I will discuss this bill in more depth in a future post. In the meantime, here is a link to a newscast where I am briefly discussing the idea behind it.

Because Chittenden District 7-1 abuts Lake Champlain, I am also keeping track of how the legislature is addressing the cleanup of Vermont’s waters. I have been attending weekly information meetings of the Water Caucus, a group of House and Senate legislators who are interested in this particular problem and solutions, and I have been following introduced bills related to the issue.

It’s not all toil in the Vermont Capital. I have joined the Statehouse Singers, a group of legislators and statehouse staff who meet for short rehearsals during the session. Yesterday, for the devotional (a daily poem, homily, or music), the Statehouse Singers sang Vermont’s State Song, These Green Mountains. The acoustics in the chamber are fabulous and I have to say we sounded great.