Category Archives: Courts & Judiciary

Capitol Beat 4-6-15

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Vermont Press Bureau chief Neal P. Goswami and VPB reporter Josh O’Gorman talk health care, education, voter registration and the week ahead at the State House in this week’s episode.

Senate advances gun bill

MONTPELIER — The Vermont Senate on Wednesday gave preliminary approval to new gun restrictions by a 20 to 8 vote that will make it a state-level crime for some convicts to possess firearms and require that people determined by a court to be in need of mental health treatment be reported to a federal database.

Wednesday’s vote followed months of behind the scenes political machinations and some public spats as advocates and opponents of the new gun measures tried to gain the upper hand. Advocates, including Gun Sense Vermont, which strongly backed the bill, claimed success Wednesday.

“I think any time there is a vocal minority it can be a little tricky, but what’s so exciting is how vast, aggressive grassroots support has really changed the landscape. It’s meaningful because, finally, common sense gun legislation is getting passed,” Gun Sense Executive Director Ann Braden said.

But opponents, including the Vermont Federation of Sportsmen’s clubs and the National Rifle Association, also claimed victory because they were able to kill off earlier versions of proposed legislation that included expanded background checks.

“At the end of the day, from the bill that was originally proposed to this, the other side, I think that their agenda has been rejected. On that note we’re happy,” said NRA lobbyist Darin Goens. “If the question was asked on the original bill I think the vote would have been very different.”

Braden said her group will not be looking to restore the background check provision in the House.

“We’re focused just on this bill, not adding on,” she said.

The scaled-back bill passed Wednesday was the result of proposals from the Senate Judiciary Committee and the Health and Welfare Committee. Judiciary Committee Chairman Dick Sears, D-Bennington, told his colleagues on the Senate floor Wednesday that the bill looked to clarify a simple point — who should possess a firearm under Vermont state law.

Sears noted that that all of the other states have a similar state-level law that excludes some convicts from possessing firearms, as does the federal government.

“We are the outlier in this particular area. There are no other states at this point,” he said.

A agent with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives and a federal prosecutor provided testimony to the Judiciary Committee that federal prosecutors “don’t have the time or the resources to prosecute these offenses in federal court,” Sears said.

Under the law, people convicted of so-called “listed crimes,” the most serious crimes in the state, will be restricted from possessing a firearm. The law makes some exceptions for lewd and lascivious behavior, as well as reckless endangerment and other motor vehicle-related crimes. The law also includes crimes involving the selling or trafficking of drugs that carry prison terms of at least 10 years.

The legislation will also require those found by a court to be “in need of treatment” for mental health reasons to be reported to the National Instant Criminal Background Check System. Sears said 38 states require such reporting.

Sears noted that the state of Virginia passed a law requiring such reporting following a mass shooting at Virginia Polytechnic Institute and State University in 2007.

“I would hate for Vermont to wait for such a tragedy,” he said.

Much of the debate on the Senate floor Wednesday centered on how and when a person could have their right to possess a firearm restored after being reported to the database. The Senate approved an amendment that would allow a person to seek restoration of their right after 18 months, if they were found by a court to no longer be in need of treatment.

Sen. Joe Benning, R-Caledonia, sought passage of an amendment that would have eliminated a waiting period altogether, but it was defeated on a voice vote.

“This is a constitutionally delineated right,” Benning said. “My concern is that once you have had a constitutional right removed it should not be your problem to try and get it back.”

Sen. John Rodgers, D-Essex-Orleans, voiced opposition to the bill, fearing that it will be altered as it makes its way through the House. He asked why an existing state law that makes it a crime for people to possess a firearm while committing a crime is not enough.

“The key word is “while committing another crime,” Sears said, noting that state prosecutors, under the provisions of the bill, would be allowed to prosecute some convicts just for possessing the firearm.

“If you believe that convicted violent felons and drug traffickers …. ought not to have firearms, then I guess that’s how your vote would be. To me, this is a pretty simple policy choice that we’re faced with,” Sears said.

Rodgers also expressed a believe that many gun rights groups have expressed throughout the legislative process, that outside groups were influencing the legislation and encouraging lawmakers to act.

“This is largely driven from outside forces and I believe the Judiciary Committee had some evidence of that in testimony recently,” he said.

Rodgers said the state has a long heritage and tradition of gun ownership and those that disagree with it “may want to seek another place that has a culture that they like.” He made a motion to delay the bill by having it committed to the Appropriations Committee but that effort failed on a voice vote.

The bill is up for a final vote in the Senate Thursday before heading to the House.

A full story will appear in Thursday’s editions of the Barre-Montpelier Times Argus and the Rutland Herald.

Roll call vote results:

Yes
Sen. Tim Ashe, D/P-Chittenden
Sen. Becca Balint, D-Windham
Sen. Philip Baruth, D-Chittenden
Sen. Joe Benning, R-Caledonia
Sen. Chris Bray, D-Addison
Sen. John Campbell, D-Windsor
Sen. Brian Campion, D-Bennington
Sen. Ann Cummings, D-Washington
Sen. Jane Kitchel, D-Caledonia
Sen. Ginny Lyons, D-Chittenden
Sen. Mark MacDonald, D-Orange
Sen. Dick McCormack, D-Windsor
Sen. Alice Nitka, D-Windsor
Sen. Anthony Pollina, D-Washington
Sen. Dick Sears, D-Bennington
Sen. Michael Sirotkin, D-Chittenden
Sen. Barbara Snelling, R-Chittenden
Sen. Rich Westman, R-Lamoille
Sen. Jeanette White, D-Windham
Sen. David Zuckerman, P/D-Chittenden

No
Sen. Brian Colamore, R-Rutland
Sen. Dustin Degree, R-Franklin
Sen. Peg Flory, R-Rutland
Sen. Dick Mazza, D-Grand Isle
Sen. Norm McAllister, R-Franklin
Sen. Kevin Mullin, R-Rutland
Sen. John Rodgers, D-Essex-Orleans
Sen. Bobby Starr, D-Essex-Orleans

NRA lobbyist says he represents Vermont interests

MONTPELIER — A National Rifle Association lobbyist is on hand at the State House for today’s Senate debate and vote on a gun bill, just days after gun rights advocates accused Gun Sense Vermont of being a front for a national group.

Gun Sense maintains that it is a Vermont-based, grassroots organization. The two-year-old group is seeking passage of a bill, S.141, that would make it a state-level crime for some convicts to possess firearms. It would also require the names of people found to be mentally ill by a court to be reported to a national database.

Earlier versions of legislation before the Senate included an expansion of background checks to private gun sales, but that has since been shelved.

On Monday, the Vermont Second Amendment Coalition blasted Gun Sense for being a front for former New York City Mayor Michael Bloomberg’s group Everytown For Gun Safety. A lobbyist from the Necrason Group, testifying on behalf of Gun Sense, told the Senate Judiciary Committee that Gun Sense needed “to get national expertise” before signing off on a proposed amendment.

NRA lobbyist Darin Goens, right, sits in  the State House cafeteria Wednesday with Evan Hughes of the Vermont Federation of Sportsmen's Clubs.

NRA lobbyist Darin Goens, right, sits in the State House cafeteria Wednesday with Evan Hughes of the Vermont Federation of Sportsmen’s Clubs.

On Wednesday, just hours before the Senate was due to debate the bill, NRA lobbyist Darin Goens denied being a national interest on the other side of the debate.

“We’re a grassroots organization. I represent Vermonters. I’m not sure they represent Vermont citizens. They’re a national group who has funded a lobbyist,” Goens said, while sitting and chatting with Evan Hughes of the Vermont Federation of Sportsmen’s Clubs.

Goes said he has worked with Hughes’ group in opposed S.141.

“We’ve worked hand-in-hand with the Federation of Sportsmens Clubs,” he said. “They’re our state association so we’ve worked with them for the last several years,” Goens said. “On this particular issue we’ve met with legislators jointly. We’ve discussed amendments. We’ve organized events to make sure that our membership turns up at the capitol to make sure they’re voice is heard.”

Data breach reported by the Vermont Department of Labor

MONTPELIER — The Vermont State Police have launched a criminal investigation into a former Vermont Department of Labor employee that “acquired” the names and social security numbers of at least 39 people from the department’s unemployment database.

The department said the former employee intentionally acquired the unauthorized information through her regular work duties. Although she had access to the information through her work, the department does not allow its employees to copy, transfer, disclose or retain that information for any purpose that is not related to the department’s business. No computer systems were breached, according to the department.

Officials did not identify the woman accused of acquiring the personal information.

In a press release, the department said the data was acquired on Feb. 24. Officials immediately asked the Vermont State Police to begin a criminal investigation. Police were granted a search warrant for the woman’s home and seized copies of documents and personal computer devices to aid the investigation.

The Labor Department said it also reported the breach to the Vermont Attorney General’s Office, the Department of Information and Innovation, the Department of Human Resources, the U.S, Department of Labor and the Internal Revenue Service.

The Labor Department said Friday that the criminal investigation is ongoing, but some information is known. The names and social security numbers of 39 people, and an additional 41 social security numbers not associated with names, were in the woman’s possession. The quarterly wage reports of seven people were also improperly accessed, but no Federal Employer Identification Numbers appear to have been involved.

The Vermont State Police are continuing to examine the items seized in the search, including data on the woman’s home computer and from her internet provider, but have not yet identified any transfer of data to other people or entities. As a result, the Vermont Department of Labor said Friday it believes the risk of identity theft is minimal.

All people affected by the data breach will receive a written notice from the department alerting them that their personal information was improperly accessed. The letters, which will be sent out no later than March 28, encourage individuals affected by the unauthorized access to call the Department of Labor if they have questions, check for information posted on the department’s website and to conduct credit monitoring as recommended by the Vermont Attorney General’s Office.

House budget plan becoming more clear

MONTPELIER — The House’s path to closing the state’s $113 million budget gap is becoming more clear after a new framework was revealed Friday by House Appropriations Committee Chairwoman Mitzi Johnson.

Johnson, D-South Hero, in her first year leading Appropriations, unveiled her own budget proposal the committee will use to finalize its 2016 fiscal year spending plan. It incorporates many of Gov. Peter Shumlin’s ideas to close the original $94 million hole the state faced in January, and incorporates new ideas for the additional $18.6 million needed after a revenue downgrade in late January.

Rep. Mitzi Johnson

Rep. Mitzi Johnson

Some of Johnson’s ideas are taken from a list of potential cuts totaling $29 million that lawmakers crafted with the Shumlin administration. House Speaker Shap Smith, D-Morrisville, said Monday that list of potential cuts “is appropriate to use” to close the gap.

Among the cuts used by Johnson in her budget proposal are:

— $5 million reduction for Vermont Health Connect, including subsidies
— Eliminating a $6 million state contribution to the Low Income Home Energy Assistance Program
— Closing the Southeast State Correctional Facility in Windsor, for a $820,000 savings in both the 2016 and 2017 fiscal years
— A $1 million reduction in funding for the Vermont Veterans Home
— A $1 million reduction in funding for the Department of Information and Innovation
— A $560,000 reduction in funding for Vermont PBS split over the next two years

In total, Johnson’s proposal makes about $57 million in general fund cuts. It would incorporate $10.8 million labor savings the administration is seeking from state employees and also consolidate four emergency dispatch centers down to two.

Johnson’s proposal would utilize more than $20 million one-time or short-term funding sources. About $5 million in reserve funds would be tapped to help close the gap. It also would shift $4.8 million in spending for the Vermont Housing and Conservation Board to the capital bill to be raised through bonds. Another $1.7 million would be generated by leasing prison beds to the U.S. Marshal Service.

Whatever proposal the Appropriations Committee settles on will be paired with a revenue package fine-tuned by the House Ways and Means Committee. Smith, D-Morrisville, said the House will likely move forward with a revenue package of $35 million.

It will include, Smith said, a Shumlin proposal to eliminate the ability to deduct the previous year’s state and local taxes for taxpayers who itemize deductions. That will generate an additional $15 million tax revenue.

House Speaker Shap Smith

House Speaker Shap Smith

The House will look to also cap the amount of all itemized deductions at 2.5 times the standard deduction, according to Smith. That will raise about $18 million in additional revenue. Another $2 million in a separate fee bill will generate the remaining revenue to help balance the general fund.

Smith said he supports the framework of Johnson’s proposal which will help the committee finalize its plan this week, including the use of reserve funds.

“I do think that the framework that she’s put forward, it works. I think we both have been trying to figure out ways to bring down the amount of one-time money that is used, recognizing that next year could be difficult as well. At this point in time, I think she’s done about as good of a job as she can limiting the use one-time money,” he said. “I think it is appropriate to use (reserve funds) given the challenge that we face as long as we’re thinking strategically how we might replace it … in outgoing years.”

Smith and other House leaders are still planning to finalize a budget plan this week, but additional time will be taken if needed, he said.

“My view is that if something comes up I’d rather get it right than get it done fast. I think that we’re on target right now for the completion of the budget by the end of the week with consideration of the full House next week,” Smith said.

neal.goswami@timesargus.com

Read Johnson’s budget outline below:

Gun bill advances in Senate

MONTPELIER — The Senate Judiciary Committee advanced a bill ahead of the Legislature’s Friday evening deadline for non-money bills on a 5-0 vote, ensuring the full Senate will consider a scaled back-gun bill this year.

The legislation, supported unanimously in the committee Friday, seeks to ban some convicted criminals from possessing weapons and will require people found by a court to be a danger to themselves or others to be reported to the federal National Instant Criminal Background Check System. It would take effect on Oct. 1.

The legislation is a scaled back version of another bill, S.31, that Judiciary Committee Chairman Dick Sears, D-Bennington, declared “dead,” because it included an expansion of background checks for private gun sales, something that was vehemently opposed by gun rights activists.

Sears, who wrote the original draft of the revised bill that looks to keep guns out of the hands of some convicts, said he supports the idea because Vermont is the only state in the nation without such a statute. The federal government also has a similar law, but federal prosecutors often do not prosecute because of limited resources, advocates argued.

The committee voted unanimously Friday to merge the Sears-crafted language with the mental health reporting component, which came as a proposal from the Senate Health and Welfare Committee. That committee’s chairwoman, Claire Ayer, D-Addison, urged the Judiciary Committee to include it in its provision earlier this week. It was also part of S.31.

Those found by a court to be a danger to themselves will, if the bill is signed in to law, be reported to the federal database beginning Oct. 1. Anyone reported to the database could be removed from the database after three years if a court rules they are no longer a danger.

The committee labored over which crimes to include in the ban Friday morning before voting on the measure. Most major crimes in Vermont are included, but the committee agreed Friday to remove lewd and lascivious conduct, several motor vehicle crimes and all misdemeanors except domestic violence.

The committee’s action Friday was hailed by Gun Sense President Ann Braden, who helped launch the effort for new gun laws in January. She called the vote “an historic victory.”

“This is a gun violence prevention bill that’s going forward despite the opposition of the gun lobby. It shows that second amendment rights [and] respect for the 16th amendment in the Vermont Constitution goes hand-in-hand with gun violence prevention,” Braden said.

Although Sears declared Friday that S.31 — and expanded background checks for private gun sales — is dead for this year and next year, Braden said her group will continue to push for it.

Sen. Dick Sears

Sen. Dick Sears

“I think these are really important measures that are definitely going to keep guns out of the wrong hands. In terms of background checks, we still want that to happen. We knew that this was going to take a long time,” she said.

Evan Hughs, legislative liaison for the Vermont Federation of Sportsmen’s Clubs, said his group will also continue its effort to ensure that gun rights are not infringed upon.

“It’s one more step in an evolving process of legislation. As the federation we’re concerned about the interests of the hunting and shooting community in the state of Vermont,” he said following Friday’s vote. “At this point we still have things that concern us but we’re willing to participate in getting the bill right.”

The meticulous attention the committee paid to the bill Friday illustrates the delicate process — and political challenges — involved in passing gun legislation. Sears said he felt “extreme pressure from all sides.”

“When I announced that I wasn’t supporting the background portion of the bill that pissed off most of the more liberal members of my caucus as well as the leadership of my caucus as well as many of my constituents back home,” he said.

Senate President Pro Tem John Campbell, D-Windsor, an original sponsor of S.31, pushed Sears hard to advance a bill. He spent considerable time in the Judiciary Committee, often seated near Sears, monitoring its progress.

“I think his behavior has been fascinating,” Sears said.

His attention was bothersome to Sears, and prompted the veteran lawmaker, who is known to express his displeasure at times, to offer Campbell total control earlier this week.

“There was one point where I asked him if he really wanted to chair the committee,” Sears said.

Campbell, a deputy state’s attorney in Windsor County and a former police officer, said he was pleased with Friday’s vote, but noted it is only “one small battle won.” The extra attention, he said, was a result of its importance.

“When you see the effect that heroin and other drugs have had on our families here in Vermont, I was willing to do anything I needed to do to try to come up with an answer,” he said. “In addition to being the pro tem I am also one of the senators. This is a bill that I actually sponsored, and as such, it was one where I felt I had not only a duty but an obligation to shepherd it in any way I could.”

The Senate Judiciary Committee, and Senate President Pro Tem John Campbell, D-Windsor, listen to testimony on a gun bill.

The Senate Judiciary Committee, and Senate President Pro Tem John Campbell, D-Windsor, listen to testimony on a gun bill.

Campbell said he was aware of Gov. Peter Shumlin’s discussions with members of the committee and was trying to counter that force.

“The governor made it very clear how he feels about this bill. He doesn’t support it,” Campbell said. “The governor is very powerful and the administration is very powerful. As such, I guess I had to step up my involvement.”

Shumlin, who strongly opposes any new gun laws, was pushing his message. Sears said he had conversations with Shumlin, including a call Thursday night from the governor to inquire about the bill’s status.

“He asked me what I was expecting to have happen,” Sears said. “He never said, ‘Don’t do it,’ but he’s been pretty clear publicly.”

The governor has adopted a wait-and-see stance. He acknowledged in an interview Friday that he has been speaking with committee members “over the last weeks,” but will not declare if he intends to veto the legislation if it clears both chambers and reaches his desk.

“If a bill comes to my desk, I will look at it when it gets to me. These bills have a long way to go. My feelings I’ve made clear. We’ll see what happens,” he said. “Let’s give them the latitude to do what they think is right and the governor will do what I think is right.”

Sears said the bill, as crafted, is narrow and could end up with the governor’s support.

“If we can get it through without adding something on in either the Senate or the House, I suspect he’s going to be comfortable with the idea that there’s certainly people that probably shouldn’t possess firearms,” Sears said. “It’s up to him. He’ll do what he wants.”

Shumlin, however, is far from offering his support.

“These are tough bills. (Sears is) trying to come out with one that he thinks is sensible, but we may well agree to disagree,” Shumlin said.

Campbell, despite warnings from some opponents of the bill that his efforts would cause him political harm, said he decided to push away.

“The price that I will end up paying for this is one that won’t be known for a couple years. I’ve had people tell me, quite frankly, that my political career is over for pushing this bill. As I’ve said before, that’s fine, I’m ready to deal with that.”

neal.goswami@timesargus.com

Read the legislation below:

Senate fends off effort to repeal aid-in-dying law

MONTPELIER — The Senate gave preliminary approval Wednesday to legislation that prevents safeguards in the state’s aid-in-dying law from expiring after fending off a spirited attempt to repeal the 2013 law that allows terminal patients to obtain lethal medication to end their lives.

Under the current law, patients who want to obtain lethal medication must be a Vermont resident and have a terminal diagnosis with a prognosis, according to two doctors, of less than six months to live. A doctor must also find that the patient has the capacity to make the decision to obtain the medication voluntarily. And, the patient must make two oral requests at least 15 days apart followed by a written request with two witnesses attesting that the request was made voluntarily.

But those steps, based on a landmark Oregon law, are set to expire in July 2016 if the law is not amended. That’s because two former senators who did not seek re-election last year — Peter Galbraith of Windham County and Bob Hartwell of Bennington County — insisted those safeguards sunset in exchange for supporting the law.

Sen. Claire Ayer

Sen. Claire Ayer

Senate Health and Welfare Committee Chairwoman Claire Ayer, D-Addison, is spearheading the effort to amend the law to ensure those provisions remain. Legislation to do that hit the Senate floor Wednesday and was approved on a voice vote.

“It was our opinion, based on testimony, that safeguards need to be in place,” she said.

Ayer said Attorney General William Sorrell informed her committee that there have been no investigations of abuse or coercion, which the safeguards aim to prevent, because of the law. And the Department of Health reported that the law is working as intended, she said.

Ayer also said family members of patients who have utilized the law — six patients have initiated the process and at least three have taken the lethal medication — support retaining the safeguards.

The safeguards do not expire until next year, but Ayer said she wants the Senate to act now.

“We don’t want to risk it getting caught up … in the end of the biennium swirl next year,” she said.

Voting in favor of keeping the safeguards is not a vote in favor of the law, but “a vote to protect the interests of your constituents.”

Sen. Kevin Mullin, R-Rutland, made a motion to postpone action on the bill until January 2016 to allow lawmakers more time to consider the law’s impact. That motion was rejected on a voice vote.

“This is a painful issue,” Senate Majority Leader Philip Baruth, D-Chittenden, said. “The pain is not eased in any way by delaying what we’ve set out to do.”

The debate Wednesday was much shorter than the debate in 2013 when the underlying law passed by a thin margin. But there was still passionate debate.

Sen. Norm McAllister, R-Franklin, who sponsored an amendment Wednesday to repeal the 2013 law, said his wife died a year-and-a-half ago of a painful disease that “eats you alive.” But his wife relied on available palliative care, McAllister said.

“There were days that were very bad, but we worked through those,” he said. “I had to deal with that.”

His amendment failed by a 12 to 18 roll call vote.

McAllister said government should not be involved in how and when people die.

“Seeing what the palliative care is in this state and the comfort they give you and the support they give the families, I don’t think this bill is necessary and I think it sends a real bad message that we’re letting government involved in decisions that need to be personal,” he said.

McAllister also said many doctors in his district are opposed to the law.

Ayer conceded that some doctors are opposed to the law, but they are not forced to write prescriptions if they are opposed, she said.

“A lot of health care providers have a problem with it, that’s why it’s completely voluntary,” Ayer said.

Sen. Dick McCormack, D-Windsor, said the 2013 law created a right for Vermonters and repealing the law would be “an extreme act and it ought to be done with the utmost caution.”

“The amendment to repeal the bill undoes an existing right. That is a weighty and unusual step for the Legislature,” he said. “It’s done, but it’s done in extreme circumstances.”

Rutland County Republican Sen. Peg Flory said the state should not be sending a message to residents that it is OK to end your own life.

Sen. Peg Flory

Sen. Peg Flory

“I think it’s bad policy when the state tells people that it should be a viable alternative, that some lives you ought to consider ending,” she said.

Flory sponsored another amendment that would prevent doctors who prescribe medications to patients for symptom relief of terminal illness that are then used by a patient to end their lives from facing any criminal or civil liability or professional disciplinary action. It also sought to repeal the aid-in-dying law. It failed on a 10 to 20 roll call vote.

Lynne Cleveland Vitzthum, who represents the Vermont Center for Independent Living, has played a leading role in the effort to repeal the law. Vitzthum, who has a son with disabilities, said Wednesday following the votes that she expects future challenges to the law.

“It’s certainly not settled for the future. As I’ve said before, this issue is never going to go away,” she said.

The legislation is up for final approval in the Senate Thursday before heading to the House.

neal.goswami@timesargus.com

Race on to advance gun legislation

MONTPELIER — Lawmakers are making a final effort to push gun legislation through the committee process ahead of Friday’s crossover deadline, but significant hurdles remain.

The Judiciary Committee began considering new legislation Wednesday that would prohibit a person convicted of a violent crime from possessing a firearm. Crimes in the proposal include the state’s so-called listed crimes — more than 30 serious offenses with hefty prison terms and fines. The proposal also includes any offense involving sexual exploitation of a minor and trafficking of certain drugs.

Judiciary Committee Chairman Dick Sears, D-Bennington, said 49 other states have a similar law on the books.

Some crimes could be removed from the list, however, after concern was raised that not all should disqualify a person from owning a firearm.

“I have issues with some of the things that are on the list of crimes,” said Sen. Alice Nitka, D-Windsor.

Gone from the discussion is the most controversial component of a previous bill considered by the committee — background checks for private gun sales. Instead, the Senate Judiciary Committee is considering new language — and a new bill — that focuses on making it a violation of state law for felons to possess firearms.

The effort to reframe the debate without the background check provision is being lead by Senate President Pro Tem John Campbell, D-Windsor, and Senate Health and Welfare Committee Chairwoman Claire Ayer, D-Addison.

The Senate Judiciary Committee reviews a new proposal Wednesday that would make it a violation of state law for some felons to possess firearms.

The Senate Judiciary Committee reviews a new proposal Wednesday that would make it a violation of state law for some felons to possess firearms.

Both lawmakers were cosponsors of S.31 earlier this. That bill has been abandoned following extreme opposition from gun rights advocates who were furious about the proposed expansion of background checks.

Meanwhile, the Senate Health and Welfare Committee has crafted language that would require Vermont courts to report to the National Instant Criminal Background Check System when someone is determined by a court to be a danger to themselves or others. That, too, was a component of S.31.

Ayer presented the proposal to the Judiciary Committee Wednesday and asked that it be added to the bill it is now considering.

“We hope that you’ll include it in the bill rather than have us amend it from the floor like it’s an afterthought,” she said.

Through testimony, Ayer said her committee found that reporting in other states to a federal mental health database has “reduced gun violence somewhat.” She said reporting would be limited to those who are determined to be a danger by a court, those who are found not responsible for a crime by reason of insanity, and those who are incompetent to stand trial due to a mental illness and are committed to the Department of Mental Health.

“We agree that those specific people should be on the database because the evidence suggests that they are more likely to commit gun violence,” she said.

The proposal, Ayer said, also creates a system that would allow for people to be removed from the database. They could petition the court to order their name be removed after five years if the court finds they are no longer a danger, she said.

“We thought that we should have a process here in Vermont. People get better. They’re not mentally ill for life,” Ayer said.

But questions about whether the law would be retroactive went unanswered Wednesday. Sen. Joe Benning, R-Caledonia, said the Judiciary Committee will need to clarify the intent of the law and clearly state if people already adjudicated by a court and found to be a danger to themselves or others must be reported. Not doing so will create legal problems, he warned.

“That’s where legal problems will start,” he said. “You’re going to cause litigation.”

Sears had hoped to take testimony from a U.S. attorney in Vermont and a Federal ATF agent on the proposal Wednesday, but was told that they are unlikely to provide testimony. He said it was “disappointing” they were unwilling to answer questions for lawmakers about the federal law that bans felons from possessing weapons.

“I guess they’re afraid of the question, ‘Why aren’t you prosecuting these cases?’” Sears said.

Whether the the proposals taken up Wednesday by the committee will clear Friday’s legislative deadline remains unknown. Sears said he plans to take more testimony Thursday, particularly on the mental health component, which appeared to anger Campbell, who said he wants to ensure the bill to moves forward.

But Sears, whose opposition to the background checks in S.31 helped scuttle it, offered two choices — the committee can take testimony and then consider adding the Health and Welfare Committee’s language, or skip testimony and force Ayer and other supports to try and add it to the legislation on the Senate floor if it makes it that far.

Sears told Campbell it remains possible the legislation will not meet the Friday deadline.

“There are bills that probably aren’t going to make it. This one is a high priority, but I can’t promise you that we have three votes,” Sears said.

neal.goswami@timesargus.com

Shumlin signs new law aimed at sex offenders

MONTPELIER – Gov. Peter Shumlin signed into law on Wednesday legislation that enhances reporting requirements for sex offenders when they are released from prison.

The new law, introduced by House Judiciary Committee Chairwoman Rep. Maxine Grad, D-Moretown, requires sex offenders to report to the Department of Public Safety Sex Offender Registry before they are released from prison. Offenders previously had up to three days after their release to report information about their intended residence. The Department of Corrections could not compel an offender to provide such information before release.

The law also requires sex offenders to report to the Sex Offender Registry within 24 hours of being released from probation, parole, furlough or a supervised community sentence.

Gov. Peter Shumlin signs H.16 in to law.

Gov. Peter Shumlin signs H.16 in to law.

“This is common sense legislation that will make our communities and state a safer place for everyone,” Shumlin said. “I want to thank Rep. Grad and Sen. [Dick] Sears [D-Bennington] as well as the House and Senate Judiciary Committees for their hard work on this legislation.”

Grad said the law will ease concerns for communities and victims when sex offenders are released.

“This law makes offenders accountable and provides communities with vital information about where an offender intends to live prior to his or her release,” Grad said. “This change from the three days given for notification is significant. Those can be three very long days for a victim and her community.”

The law took effect immediately and applies to offenders currently sentenced for qualifying crimes and those sentenced after enactment.

Consideration of child protection law delayed a day

MONTPELIER — Legislation aimed at boosting the state’s child protection laws was pulled from the Senate floor Tuesday to allow senators more time to understand the bill.

Senate Judiciary Committee Chairman Dick Sears, D-Bennington, requested the one-day delay in order answer persistent questions from constituents about the bill’s contents. It’s undergone several changes since the Legislature reconvened in early January.

A special legislative panel, the Committee on Child Protection, was formed last year after the deaths of 2-year-old Dezirae Sheldon, of Poultney, in February 2014, and 15-month-old Peighton Geraw, of Winooski, in April 2014. Both were ruled homicides, and murder charges have been filed against family members.

The panel spent the summer and fall holding hearings and ultimately drafted S.9, a comprehensive bill to address issues in Vermont that were identified after hearing from dozens of witnesses. The legislation has been changed throughout the course of the legislative session to address concerns with the original proposal.

Sen. Dick Sears

Sen. Dick Sears

But those changes have not been made clear to the public, or have been misconstrued, Sears, who serves as co-chairman of the special legislative panel, said at a caucus Tuesday. He said he pulled the bill Tuesday to address those questions at the caucus. The bill is now expected to be up for preliminary approval on Wednesday.

“Somehow, in this building, frequently, things are misconstrued,” he told fellow lawmakers.

At issue is the creation of a felony crime that carries a 10-year prison term. The “failure to protect” proposal would make it a felony if a parent or caregiver failed to protect a child. Sears said it would enhance a similar misdemeanor crime already on the books in Vermont.

The new law would apply to people if a person “knows or reasonably should have known” that a child was in danger of suffering death, serious bodily injury or sexual abuse. People could be held criminally liable if they fail to take action to prevent such danger or if their failure to act was a cause of harm to child.

The proposed felony law was included at the behest of Attorney General William Sorrell.

“A lot of testimony, particularly from the attorney general in the summer and fall, focused on Vermont’s lack of a law called failure to protect. Twenty-nine other states have failure to protect statutes,” Sears said. “As introduced, admittedly, the section of failure to protect a child was very broad. The new crime would only apply to a carefully limited range of conduct.”

Sears said Tuesday that his committee has “substantially narrowed the scope of the crime and added affirmative defenses.” The law is modeled after one in place in Hawaii, and the affirmative defenses against the law were added to help prevent abuse of the law.

The legislation originally included references to illness and pain in the section pertaining to the proposed felony. That language caused blowback from a range of people, included those who thought it might create criminal liability for parents who opt to skip vaccinations for their children under existing exemptions in Vermont law.

Sears said the legislation now provides for situations where a parent or caregiver “makes a reasonable decision not to provide medical care or treatment.”

“That’s an affirmative defense. Some want a specific statement against vaccinations in there that the failure to vaccinate would not result in a conviction,” he said.

Sears said the language included in the bill protects the rights of parents who do not want to vaccinate their children.

“Could a state’s attorney charge somebody? I suppose anything is possible, but pretty highly unlikely,” he said. “It’s certainly not the intent here to have somebody who fails to vaccinate their child and then gets measles to be charged with a felony.”

Sen. Claire Ayer, D-Addison, the chairwoman of the Senate Health and Welfare Committee and co-chairwoman of the Committee on Child Protection, said her committee recommended removing the references to illness and pain after receiving messages from constituents concerned that the bill would take away their rights.

Sen. Claire Ayer

Sen. Claire Ayer

“People saw the word illness and thought that they would be liable if they didn’t vaccinate their kids. We took out the word two or three weeks ago. They’re just late getting their emails out, I guess,” Ayer said. “We also took out the word pain because people want to be able to use corporal punishment on their children. So, we took that out as a standard.”

Sen. Ginny Lyons, D-Chittenden, vice chairwoman of the Senate Health and Welfare Committee, which also reviewed the bill, said the legislation represents a first step in improving the state’s child protection laws. Additional work will be needed, she said.

“This bill does not accomplish everything and I think that as you hear from constituents and as you begin to understand what is in the bill and what it does do, that it is not a comprehensive response to everything that does need to be done,” Lyons said.

The final version of the Senate bill also stripped out language that could have led to felony charges for exposing a child to the possession, manufacturing, sale or cultivation of drugs. New language was added calling for a 30-year prison sentence and up to a $1.5 million fine if a child is present where methamphetamine is being made.

Included in the legislation is language that would shift the emphasis in child protection cases away from reunification of a child with a family to one that focuses instead on the best interests of the child. The Department of Children and Families came under fire after the deaths of Sheldon and Geraw for over-emphasizing reunification.

Sears said he expects the legislation to receive widespread support in the Senate before it heads to the House for that chamber’s consideration.

neal.goswami@timesargus.com

Marijuana bill revealed but not expected to move this year

MONTPELIER — Legislation to legalize marijuana in Vermont was unveiled at the State House Tuesday, but a key lawmaker said it will not be taken up this year.

Chittenden County Sen. David Zuckerman, a Progressive and Democrat, has drafted a bill that would allow Vermont residents 21 and older to possess up to one ounce of marijuana, two mature plants, seven immature plants and any additional marijuana produced by the plants. Growing would only be allowed indoors.

Under the legislation, nonresidents could possess one-quarter of an ounce of marijuana. Criminal penalties would remain in place for anyone possessing more than the amount allowed under. Penalties would also remain in place for anyone possessing marijuana that is under the age of 21.

Edible marijuana products would be allowed, but those products would not be allowed to appeal to people under the age of 21. It would also prohibit edible marijuana products from mimicking similar products that do not contain marijuana.

Sen. David Zuckerman

Sen. David Zuckerman

The bill has been anticipated for some time following a RAND study released last month that showed the state could reap significant revenue if it legalizes marijuana.

A delegation, including Public Safety Commissioner Keith Flynn, recently traveled to Colorado to learn about that state’s legalization efforts. Upon returning, however, Flynn noted that officials in Colorado believed the state moved too quickly to legalize. They were forced by a ballot initiative. In Vermont, some hope to legalize the drug through legislation.

Any significant progress this year was ruled out Tuesday by Sen. Dick Sears, the Bennington County Democrat who chairs the Senate Judiciary Committee. The bill would need to make its way through his committee, but Sears said Tuesday that he will not take it up this year.

Sen. Dick Sears

Sen. Dick Sears

Zuckerman’s bill would create the Board of Marijuana Control within the Department of Public Safety to adopt rules governing the cultivation and sale of pot. It would also be responsible for administering a registration program for places that sell the drug. Zuckerman has proposed that the board consist of five members appointed by the governor, and that a director be hired to oversee operations.

The board would also create the regulatory structure for cultivation, production, testing and sale of marijuana.

Only nonprofit dispensaries or benefit corporations would be allowed to register with the board as a cultivator, product manufacturer, testing laboratory retailer or lounge, under the legislation. Registration of such groups would begin no later than Sept. 15, 2016.

The legalization of marijuana, under the legislation, would provide revenue to the state through a series of excise taxes and fees. Zuckerman proposed a $2,000 application fee for marijuana establishments and an annual registration fee ranging from $1,000 to $50,000. Those fees would be used to implement, administer and enforce the new law.

An excise tax of $40 per ounce would be charged for marijuana flowers. A $15 per ounce excise tax would be levied on any other marijuana, and $25 for each immature marijuana plant sold by a cultivator.

The bill earmarks 40 percent of the revenue raised through the excise taxes for public education about the risks of alcohol, tobacco and marijuana consumption, and for criminal justice programs and substance abuse treatment. Also funded by the taxes would be law enforcement and academic and medical research on marijuana.

The remaining revenue would go to the state’s general fund.

The bill includes several other provisions, including:

— Maintain criminal penalties for driving under the influence of marijuana
— Smoking marijuana in public would remain prohibited
— Smoking marijuana within 1,000 feet of a public or private school or regulated child care facility would be prohibited
— Allows municipalities to prohibit or regulate marijuana establishments
— Allows landlords and innkeepers to prohibit cultivation on their property

Gov. Peter Shumlin has said he favors legalization, but believes Vermont must learn more from the efforts in Colorado and Washington before acting. His office reiterated that sentiment Tuesday after Zuckerman’s bill was revealed.

“The governor’s bias is towards legalization but he wants to learn from the experiences of Washington state and Colorado. This is ultimately a conversation that the Legislature and Vermonters will have to have, and the governor is pleased that the conversation is underway,” spokesman Scott Coriell said.

Read the proposed legislation below:

Labor costs, guns and organs: Capitol Beat, Feb. 16, 2015

Play

Vermont Press Bureau chief Neal Goswami and VPB reporter Josh O’Gorman chat about the showdown between the Shumlin administration and the Vermont State Employee’s Association over labor costs, the state of gun legislation in the State House and a bill that would make organ donation the default option in Vermont. Also, Barre-Montpelier Times Argus Editor Steve Pappas talks about a few stories he’s worked on in the past couple of weeks, including a profile of Rep. Janet Ancel and Sen. Tim Ashe, the lawmakers that chair the taxing committees in the State House. He also updates on a potential second bid for governor by Republican Scott Milne. Lots going on in this episode — have a listen.

Check out recent episodes of City Room with Steve Pappas, which are discussed in today’s podcast episode:

Scott Milne episode

Paul Costello and Ted Brady episode

Vermont delegation heads to Colorado for pot fact-finding

MONTPELIER, Vt. (AP) — Senior Vermont law enforcement officials and others are planning a fact-finding trip to Colorado next week to look at that state’s experience with marijuana legalization.

Public Safety Commissioner Keith Flynn, Chitttenden County State’s Attorney T.J. Donovan and pro- and anti-legalization advocates will be among those traveling to the Rocky Mountains.

“Colorado was the first state to legalize marijuana, and we want to see the impacts of that law.” Flynn said Friday. “Legalization is being discussed in Vermont and we believe that an on the ground look at how it has been implemented will give us a unique insight into the issue. It is important to learn as much as we can about the regulation, the effects on communities, and any other information that will provide policymakers with as much information as possible when considering decision points around this issue.”

The nine-member delegation, which also will include the Rutland County sheriff, Bennington’s police chief and an assistant U.S. attorney, plans to meet with a range of people in Colorado to talk about that state’s experience with legalization.

The list includes law enforcement officials, members of the Colorado governor’s staff, school personnel and the U.S. attorney in Denver. They’ll also tour a marijuana growing operation and a store selling marijuana products.

Sorrell outlines state’s GMO case for lawmakers

MONTPELIER — Vermont Attorney General William Sorrell told the Senate Agriculture Committee Wednesday that he expects a judge to rule on dueling motions in the GMO labeling case within the next three months, which will help lay out a path for the rest of the case.

A host of food industry groups filed suit last year against the state’s GMO labeling law, set to take effect July 1, 2016, claiming it is unconstitutional. Sorrell briefed the committee Wednesday on the status of the case.

The plaintiffs have asked the judge for a summary judgment, claiming the state is restricting their free speech rights by forcing them to label products that contain GMOs. They also claim the state cannot prevent them from calling a product natural if it contains GMOs.

The state has filed a motion for dismissal of the lawsuit. Oral arguments have already been heard, and Sorrell said the state “attacked each count of the plaintiffs’ complaint.”

In some cases, restricting the right to speech can be unconstitutional, according to Sorrell.

“In first amendment free speech arena, there’s the freedom to speak or the freedom to remain silent. So, restricting speech can be a violation of free speech rights,” Sorrell said.

Attorney General William Sorrell testifies before the Senate Agriculture Committee on Wednesday, Jan. 28.

Attorney General William Sorrell testifies before the Senate Agriculture Committee on Wednesday, Jan. 28.

Under the state’s GMO labeling law, the state is compelling food manufacturers to state whether or not food products have GMO ingredients. “They’re objecting, saying, ‘You are forcing us to speak on labels and we don’t want to,’” Sorrell said.

In this case, Sorrell said the state has argued that it is not unconstitutional, and courts have found such compelled speech to be constitutional in similar cases.

“On the compelled speech issue we suggest that there are legitimate governmental concerns about environmental issues and public health issues as it relates to genetically engineered products, and legitimate governmental interest to accommodate religious considerations for a segment of the population,” he said.

The state’s motion to dismiss cited a case from an appeals court in Washington, D.C., one step below the U.S. Supreme Court, in which the appeals court ruled that meat must be labeled with the country of origin. The court applied a lenient standard for the government to overcome, according to Sorrell.

“We suggest in our argument that this is very much akin to the country of origin required disclosure on meat products that we’re talking about here,” he said. “We should win on the compelled speech piece.”

And, unlike products that contain alcohol or tobacco and require health warnings, the required labeling requires facts to be disclosed, much like nutrition labels.

“Unlike those kinds of warnings, what our statute requires are simply factual assertions without sort of the taint or flavor, if you will, of saying, ‘Caution, these are hazardous to your health,’” Sorrell said. “These are akin to the … kinds of closures that you typically see on products for calories, fat content, salt and sugar and the like. The standard to which we should be held shouldn’t be a higher standard because it is just a factual assertion as opposed to a warning.”

Sorrell said he is also confident in the state’s argument for prohibiting the use of the term “natural” for GMO products.

“There is no first amendment right to make either false or misleading statements,” he said.

The state’s case points to a posting on the website of Monsanto, a biotechnology company that is part of the suit against the state, that describes GMOs as “plants or animals that have had their genetic makeup altered to exhibit traits that are not naturally theirs.”

“We say, ‘Listen, there’s no way you can say that this is natural,” Sorrell said.

Committee Chairman Sen. Robert Starr, D-Essex/Orleans, indicated he believes that posting will harm the plaintiffs’ case.

“They kind of shot themselves in the foot with that post,” Starr said.

The suit also claims an undue burden on interstate commerce. Sorrell told the committee that the law provided more than two years notice to food manufacturers of the pending labeling requirement.

“The state was very accommodating there,” he said.

And GMO labeling is already required in more than 60 countries and two other states, Connecticut and Maine, have passed labeling requirements, but those have yet to take effect.

“This is not Vermont as some island in the world that’s requiring labeling,” Sorrell said.

U.S. District Court Judge Christina Reiss is expected to issue a ruling on the initial motions within the next several months, according to Sorrell. That will inform both sides how the rest of the case will proceed, he said.

“I think we’re hoping to be on a track where whatever evidentiary proceeding we’re going to need to do will be done some time by late fall. Hopefully, a decision at the trial court [will happen], if not within this calendar year, then very early into the next calendar year,” he said.

neal.goswami@timesargus.com

Video: Hearing on S.9, protecting children from abuse