SmartTranscript of Senate Judiciary 2025-05-06 - 11:00AM

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[Cameron Boyd]: The record, Cameron Boyd, also the legislative council. With note of pride for me, it's my first time in this committee to in this role. However, I started my career in Vermont as an intern during my last semester of law school with Michelle Childs. So I did spend some time in this committee It's true. Eleven years ago. I'm not from Vermont. I'm from Alabama. I learned what a stone was in this committee. So just a little point of note for me. So Happy to be here. Mister chair, would you like me to share the language? I think you all have it. [Chair Nader Hashim]: Yeah. If you don't mind, if there's still one second. Awesome. [Cameron Boyd]: Give me just a brief moment now to get started. If you don't mind sharing the link for me, that would be perfect. So, Gus, just sort of a little background then as as I'm trying to pull this up. This started as a standalone house bill, as you mentioned, h one sixty nine. It was introduced in the house. It is in house general. And the language that you have here is slightly different than the bill that was introduced. The bill that was introduced would add citizenship and immigration status into the protected classes for both public accommodations and unfair housing practices. So that's the primary, you know, length of the bill. That's why the seven pages is because we will be going in and adding those two citizenship and immigration status into each of those subdivisions under unfair housing practices and then public accommodations. The bill, as introduced, also included a prohibition on requesting Social Security numbers, landlords. It wouldn't prohibit landlords from requesting a Social Security number on the rental applications. The part of that language was included in s one twenty seven, which is the housing bill that the senate passed. As the housing bill was in the senate economic development, they incorporated parts of one sixty nine, specifically the parts of prohibiting discrimination, public accommodation, and unfair house practices. They did not incorporate the prohibition on requesting Social Security number. As this was in the senate, Senate economic development committee, there were some concern that was raised about that language, and so they made tweaks to it before it was passed. And now I'm able to share my screen. Okay. We're gonna skip over section one for right now, so I'm gonna come back to it. Sections two, three, and four, as I mentioned, adding citizenship immigration status into health and accommodations unfair housing practices. When you get down to one of the provisions in the unfair housing practices, subdivision six specifically says that men cannot discriminate against any person in the making or purchasing of loans or providing other financial assistance for real estate related transactions or in the selling, borrowing, appraising, and purchase of real property, etcetera. When this provision was in the Senate economic development initially in the housing bill s one forty seven, So there was concern raised by financial institutions about that subdivision in particular. Federal law allows financial institutions to take into account someone's immigration status when making determinations of whether to issue out loans or not. They they calculated into the the risk associated with an individual and and that determination. So there was some concern from banking institutions about including immigration status specifically. So the senate removed that from the unfair housing practices section in your housing bill. So the housing bill that senate passed, one twenty seven, includes citizenship and immigration status protections and public accommodations, but only included citizenship status in unfair housing practices. Okay? Then it went to the house. House one twenty seven is in house general. And since they received that bill, they have been discussing these provisions. Because, again, it's stand alone h one sixty nine sitting on their wall, and then they have portions of it in the senate housing bill that they've been reviewing. Right? So in testifying and and going through with witnesses and working through with the committee, that's why you have this document. And that's why it's drafted as orphan language as a possible amendment to one sixty nine. What the house did was they ended up incorporating this into their proposed amendment to your house of bill. Okay? So senate economic development is now working through their proposed amendment to the housing bill that they received from the house, and the question is whether to incorporate this language into their bill. So that's the context. K? Cool. And, again, I'm gonna come back to section one. I just get us down to what I was just discussing, citizenship and immigration status and housing. You have these subdivision two and a subdivision e, which is being added to the unfair housing practices. There were two primary concerns that were raised or have been raised. I mentioned one of them, the financial institutions and ability to take into account someone's immigration status and issuing out loans, and federal law specifically allows them to do that. So subdivision e was drafted. I worked with my counterpart, Maria Royal, in our office to draft this subsection e, which says for the purposes of that subdivision, it shall not constitute a law of discrimination for a lender to consider a credit applicant's immigration status to the extent such status is bearing on the lender's rights and remedies regarding loan repayment. I don't [Speaker 2 ]: know. Who's responsibility is it to show that it has a bearing on the rights and remedies regarding loan repayment to further provide Okay. Yeah. [Cameron Boyd]: So as I see this working out, it would be an individual believes that they've been discriminated against by a bank or a financial institution. They would then make a complaint with the human rights commission first. And then the bank or financial institution would then need to show that they're asking for immigration status or the policy that they have meets this submission, and they're asking for it where they're not unlawfully discriminating against someone because they're considering the immigration status to the extent that they're waiting whether or not to give someone a loan. So it's really gonna be back dependent on what the bank is doing. The the cases that I've read, because there are some protections that under federal law Right. For for these types of arguments. And I can go we can we can deep dive into that to the extent that you're all enlightened to. The cases that I've seen so far that have an argument under federal law are banks that simply don't allow you to even submit an application unless you're a citizen or unless you have a Social Security number. And so there have been certain cases, primarily DACA recipients or individuals that are protected or here in this country due to DACA. They were bringing cases under federal law against those institutions saying they were being discriminated against because they may have a cosigner who is a citizen, or they simply can't even submit the application. And the the financial institutions in those instances were claiming under federal law they have the ability to take into account immigration status and making determinations on whether to issue credit and courts are saying, but you're not even allowing them to submit the application. So your policy is potentially a violation of federal law. That's a very roundabout way. I don't know if I answered your question directly, and I apologize if I didn't. [Speaker 2 ]: And that's okay. I there may not be an answer because I think, you know, to your point, so many of these things are fact dependent. I just always worry when the burden of proof falls off the person claiming discrimination and not the person saying, no. I'm not discriminating. [Cameron Boyd]: Yeah. My understanding is the the individual is going to have to show that there is discrimination against them either, you know, on its face, the policy discriminatory, or there's some sort of discriminatory, you know, disparate impact to them as an individual. If they're able to make that showing, then the financial institution or the bank would have to come in and show that their policy or specifically the practice to that individual is not discriminatory. And the reason the committee wanted to add this is because they didn't want there to be a conflict between state and federal law. Federal law specifically authorizes a financial institution to take into account your immigration status, whether issuing credit. And without a similar provision, what you could have is you could have a financial institution that's denying someone individually alone because they're taking into account, you know, your they're only here on a student visa. And, you know, if your visa expires in twelve months, we don't wanna issue you a mortgage. And if you don't have a similar provision, somebody brings a case against that that financial institution, and they're saying, but I'm authorized to take this into account under federal law, and then it becomes a question of how the state is gonna interpret its state law if you don't have similar provisions. [Chair Nader Hashim]: I think the [Cameron Boyd]: K. I'll try again. [Speaker 2 ]: Well, so my problem is is I know that there are some areas where we as a state are able to be more protective than federal law and other areas where that's not necessarily true. And I'm not familiar enough with those banking laws to know if that's an area where we can be more protective. [Cameron Boyd]: So I think in this area, public accommodations and unfair housing, you as a state general, you know, you're able to be more protected. We have more protected classes in our public accommodations and unfair housing practices than exist at the federal level. So you're able to be more protective. The concern and the issue that I was raising with the committee is you don't want to put yourself in a position where you're asking individuals to potentially be in direct conflict with federal law. So if we say as a state, you can't discriminate against somebody in giving out loans because of their immigration status, and the Human Rights Commission and the court determined that to mean something much more stringent than what's a federal law. You're gonna have banks that are gonna be in conflict, and they're gonna raise branch challenges. They're gonna say federal law specifically authorizes us to do this, not requires us, but it allows us to do it. And you state by not giving us that similar authorization, you're putting us at risk. And if somebody breaks a claim against us, my point to you all, the attorney of the finance institution, I would be our comprehension. That because federal banking laws specifically offer us banks to do it, that your state can't prohibit it. And I'm just concerned if you don't have a similar provision there. It's just bringing the entire protection scene into your question. Thanks. Here is I can't I'm [Chair Nader Hashim]: fairly confident national origin is considered a suspect classification. How's [Cameron Boyd]: and I I [Chair Nader Hashim]: imagine it's been litigated already, but how how does that federal law meet strict scrutiny when they're talking about authorizing that for people based on citizenship or immigration status, which in my mind, I'm connecting to national origin. [Cameron Boyd]: I'm gonna try my best to give a description of what I found at the federal level, and I apologize if I need to come back and answer some of your questions. I I wasn't aware I was coming in here until a few moments ago. There are two federal laws at play. One of them is forty two USC nineteen eighty one, and it specifically protects and says that that individuals shall have, you know, the same rights as white citizens in making and enforcing contracts. Federal law federal courts have interpreted that to me when it says individuals have the same rights as white citizens is that that applies to aliens as well as naturalized citizens. Are you saying white citizens? That is what the statute says. Yes, sir. Because it was drafted immediately after the fourteenth amendment, and I believe it started in the eighteen sixties. It was then amended, I believe, in the eighteen seventies. And, yes, that is what the language still says. That's crazy. [Speaker 2 ]: Yeah. The language certainly tells a story. Yeah. [Cameron Boyd]: Okay. Forty two USC nineteen eighty one. All persons of the jurisdiction of the United States shall have the same right in every state to make and enforce contracts as is enjoyed by white citizens. And so this is about making and enforcing contracts and understand that a mortgage or a loan is a contract. So you have this. Separate from this, you also have, I believe, is the Equal Credit Opportunity Act, and I can pull that up as well if you want. But that is the law that prohibits discrimination in the making of loans and mortgages and issuance of credit to insert your list of classes. National origin is one of them. That is also the statute that specifically authorizes those banks to take into account someone's immigration status when determining whether to issue credit. What I haven't found is I haven't found any let me back up. So, again, under this law, the courts have said that this includes or is also a protection of individuals' aliens who are here. And and I'm trying my best to use language that the courts use. I've said this in every committee I've been in, so please forgive me if I'm not using language that some individuals would prefer that I use. I'm trying my best to follow what the courts are saying. Again, this statute applies to aliens. There is a question about whether or not this protection would extend to individuals who are here unlawfully. That's an open question. I've seen some court cases that specifically attach the word lawfully to this. And so presuming that individuals who are not here lawfully would not enjoy this protection or would not be able to make a claim under this law, It does say all persons within the jurisdiction. Yep. I agree. I just haven't seen that argument specifically made and a court make that whole thing. Other things that I haven't seen is when you look at, again, as I mentioned, the Equal Credit Opportunity Act, you know, with the federal fair housing, they use national origin. I haven't seen courts read into national origin immigration status. So what I've seen is you would have to make an argument that you are being discriminated based on your national origin being, you know, pick something versus making an argument that you're being discriminated against your immigration status. And when I was initially doing the research and I spoke with the lead sponsor of the house, Phil, I kind of talked to her about that. Open question for me. If you were discriminating against someone and they make a claim, you're discriminating against me because of my national origin being Latin American or from a Latin American countries, and I turn around and say, no. I'm not. I'm discriminating against you because you're an illegal agent. I don't know whether a court is going to read or allow that case to go forward if you're how they would just you know, how they are gonna distinguish those two, whether they're gonna make that as no. That's just a pretext, and you're actually discriminating against someone because of their national origin or not. Trying to circle all the way around to your question, mister chair. This specifically comes up because of, again, the Equal Credit Opportunity Act, which I can try to bring up as well. But the that law in particular specifically authorizes financial institutions to do this, and I haven't seen a case where someone's arguing that that provision of the law is unconstitutional because it somehow doesn't pass strict scrutiny in that sense. So, Ruben, I'm I'm thinking about the due process clause, which also says cannot deprive any person. Mhmm. Just like here, it's any person. Correct. So whether somebody is here legally or not, they're entitled to due process. Yes? One would make that argument, and we are seeing would would one be correct at Nervous? This is not my area of expertise. I'm being careful because the the president of the United States and his administration is arguing the opposite. Yep. So I'm trying to be careful here for those two reasons. Pre Trump. Wasn't the understanding in in the case law that it's any any person is within the jurisdiction of the US is I want to defer to my judiciary colleagues on that. Okay. Yes. Because as I read the language of the statute that you put out, it does speak to this bill and to the additions to it in a in a affirming where it sits comfortably with my reading of that federal statute. Still bring a case against that financial institution institution claiming discrimination under the law that we just looked at. It's just gonna be a fact specific scenario. Yeah. Again, are you denying every loan to every individual who is an alien that's here lawfully because you don't want to loan to people. They're here lawfully. There was a memo that actually came out. If you wanted to, I could I could try to find it and pull it up. A few years ago, I think it was in twenty twenty three, there was a memo that came out from the what I didn't say it. It was the US Department of Justice and the one of the credit bureaus, and it was reminding banks that potentially blanket discrimination against aliens who are here lawfully in issuance of credit could violate that provision. Mhmm. And so the concern, though, was, again, as I mentioned earlier, putting us, putting your financial institutions here in Vermont somehow in conflict with complying with state versus federal law. If federal law allows them to take it into account and without similar language in this bill, if you don't have that and you just say discrimination against immigration status is a violation of of our laws, it opens them up to potential lawsuits from individuals for complying with federal law. On six, page six, it seems like they cover that base down fourteen to eleven. Yes, sir. No. I I [Chair Nader Hashim]: agree with you. Yes, sir. Yep. [Cameron Boyd]: They're in the subsection, and that's why the the house general committee wanted that language in. Yeah. Senator Lindsey. [Speaker 2 ]: But the federal law is a may, not a shall. So if federal law allows something that that, you know, other spaces doesn't mean the state can't disallow it. But if federal law law says you shall do something and we disallow it, then we run into conflict in a different way. [Cameron Boyd]: I think so this is this is how I share [Chair Nader Hashim]: it with house general. [Cameron Boyd]: This is a policy decision for you all. You all can say, despite the fact that federal law authorizes you to do this, we're not gonna put a similar provision in the subsection. And then it just just gonna become an open question. Someone potentially could make complaints to the Human Rights Commission against the bank. And then at that point, Human Rights Commission and the courts are going to determine whether asking about immigration status on an application is going to be a violation of state law. And my comments to the committee were, if I'm the counsel for the financial institution, I'm going to make an argument that that is preempted. A court's going to then make that determination. I agree with you, senator. It's federal law authorizes it. I think a law could say, great. We don't want to authorize it. It's not a requirement. It's a may, and we don't think that you should. And my point is simply, I think that is going to open up the state to a preemption argument, and it's potentially going to be struck down. I can't guarantee that. That's just that's what I would be arguing if I were counseled the other side. Okay. As I'm trying to find out, then I hope you forgive me. I am not. So I am just going to keep talking about the bill. The other provision in here is this subsection b. There are specific federal programs that authorize or require that funds for housing go to individuals that are that are geared lawfully. So you're comparing your section eight housing vouchers, etcetera. There are federal provisions within those statutory sections that state that the funds cannot be provided to individuals who work here unlawfully. And there was concern about what the Trump administration might do in the housing context. Currently, there is no prohibition on renting to individuals who are here on. And the question from the committee was, well, what happens if the federal government imposes set restrictions? And so the house general committee wanted this language, this subsection d inserted, which says if required by federal law, verification of immigration status, that's where it started, Now I'm just not the highlighted language. It started with if required by federal law verification of immigration status shall not constitute a violation of subsection a. Again, there are certain federal dollars that require them to go to somebody who's in law office. That was where that provision started. And then they added for differential treatment on the basis of citizenship or immigration status. So if it's required by federal law, differential treatment on the basis of citizenship or immigration status will not constitute a violation of subsection a. Again, it's not required now, but there was concern among the committee members about what could happen in the future. And so that is why this subsection was included. Do you have a question, Sarah? [Speaker 2 ]: I did. And it's a little bit out of our jurisdiction, but it is coming up as we talk about this and the protections we're talking about. Under current law, there is no under current state law, we can rent someone regardless of immigration status. Are those individuals provided all the same rights and protections under our housing policy? That's my question. Makes sense. Yes. And I [Cameron Boyd]: think that's probably a question best for the Human Rights Commission. My I don't know if I haven't found any case in Vermont that would indicate otherwise. So I think, yes. [Speaker 2 ]: The state housing and the protections around deposits being returned and all of that extend. So Yes. Yes. Okay. Thanks. So I certainly know we've heard some pretty awful cases of people you know, hybrid workers being rented really so far. Right. Rentals and would wanna make sure that they are protected. [Cameron Boyd]: Yes. I would have to pull up those sections, but, no, I don't think no. Those, you know, prohibitions and requirements apply to the landlord irrespective of who they're who they're they're renting those locations to. And so that is the the primary piece of the bill related to public accommodation and unfair housing practices. Again, the question in the senate economic development committee is whether to include this in our housing bill. It would add these two classifications into those protections, include these two, you know, subsection caveats. The other piece is at the very beginning where, if you recall, I mentioned that part of one sixty nine initially included a prohibition on landlords from requesting a Social Security number to do a background check for your credit chest. The committee took a lot of testimony and found out you don't you're not required to have Social Security numbers to do a background or a credit check. It's potentially more effective to do it that way. And so the committee landed on this language, which is in the currently, it's a section related to rental application fees. So we're kinda striking two provisions there and having the section just be residential rental applications. So the new subsection a, which is current language and law that says that landlords cannot charge an application fee in order to submit a rental application, this would add a subsection b, which would state that in order to conduct a background or credit check, a landlord shall accept any of the following. And then it would be either an original or a copy of an unexpired form of government issued identification and individual taxpayer identification number. So there are individuals who are here in the country, you know, that can get an individual taxpayer identification number if they're not eligible to get a Social Security number so they can file their taxes or a Social Security number. So you would have to accept any of those following. And then the committee wanting to, you know, ensure that that was hopefully playing out in real life for individuals, and so they wanted the rental applications to inform applicants of that requirement. And so, you know, how I read these things going together, this subsection b along with including immigration status into the unfair housing practices is if you're a landlord and you, for example, only allow people or you will only rent to people who provide you the Social Security number. I think you're opening yourself up to a complaint of somebody saying, I don't have a Social Security number. You have a blanket prohibition on renting to people without one. That's a discrimination based on my immigration status. I think that that would be a successful argument one you would make. It doesn't prohibit the landlord from asking for one, but if you don't have one, the landlord, if they're needing to do a background check or credit check, would have to take these other forms as well. Question came up at Senate Economic Development about, well, what if somebody doesn't have credit or, you know, a a credit history? And I was telling them that I don't see anything in this language that would prohibit a landlord from saying, if you do not have minimum credit of x, I will not rent to you. Okay. And then, again, as long as they're accepting these forms of identification, they're not excluding people without a social. You don't have to have a social to do a credit check. So, like, those are the fact specific arguments that you're gonna get into when you include these provisions or when they go to tier client submission, etcetera. [Speaker 2 ]: The way that I read being one being a shall would mean that the individual applying for tenancy provides one of these, and the landlord shall accept it, not say, oh, I don't want this. I want a different thing. Correct. K. [Cameron Boyd]: That is it was drafted with that thought in mind. Just Great. Any any further questions or comments about this? [Chair Nader Hashim]: Well, we don't have it technically in our committee to vote on, but [Cameron Boyd]: I suppose are there [Chair Nader Hashim]: wait. Are are we generally supportive, unsupportive, neutral? Generally support. [Speaker 2 ]: Generally support, actually. [Cameron Boyd]: Yeah. I've just yeah. Like Housing. Yeah. I'm curious about unlawfully being here. The landlord has no way of knowing based on this? What do you mean exactly? Like immigration status unlawfully being here. The landlord would have no way of knowing based on this if someone's here unlawfully or applying for it. I think if this were to go into law, And you as a landlord began to verify immigration status for the purpose of not renting to individuals who were here unlawfully. I think that an argument could be made to the human rights commission to the court that you are discriminating against something. Mhmm. That's where I just can't assure you all whether a court is going to extend the protection to someone who's here unlawfully. [Chair Nader Hashim]: I don't know. And this is a back [Cameron Boyd]: to the conversation we were having about the process. Yeah. I think arguments can be made that they do apply. You know? It's a prohibition against discrimination against trying to grab the language in your persons. Yeah. I'm looking at our stats now. You know? So I think that an argument could be made that it does unless there is, and that's why they added the subsection d there, maybe federal law changes. It says you have to verify. You can only rent to people that are here lawfully. Mhmm. And at that point, the landlord's gonna be protected by validating immigration status at the point of detention. I will say other concerns came up in the context of potentially landlords harboring individuals who are here unlawfully. So there's specific federal law that makes it a crime to harbor unlawful individuals. I mentioned to the Senate Economic Development Committee and mentioned it here. Multiple circuit courts have found that the mere act of renting to someone is not itself harboring an individable such that it's a violation of federal law. So circling all the way back to answer your question, without anything else, if this language as it's presented in front of you were to go into law every month, I think that an individual could make an argument that if you are excluding unlawful individuals Yes. That you are violating fifth immigration status, whether the Human Rights Commission and the court would then extend the protection to those people. Yeah. [Chair Nader Hashim]: No. I think I can't hear you. [Cameron Boyd]: I think that'd be I would I would start with the human rights submission, how they've interpreted. They may have cases that they've only interpreted that. I just have to tell them. [Chair Nader Hashim]: Just as a quick follow-up to what you said, if I'm understanding it correctly, I think in terms of landlord liability if this is to go into law and the landlord can't become aware of immigration status in my general opinion. And I think that would and based off what our counsel just said, I think that would shield them to some extent from what the federal law is in terms of harboring. Because you can't know as a result of state law, and it's you're not getting something elements for that or whatever the federal violated thing. I mean, you're right. I should light down a little bit here. [Cameron Boyd]: And just very quickly, I would say again, the the circuits that have made the termination on this require, there would be something in addition to simply renting to someone. You know, if you're a so the protection here, if you're a if you're a landlord and you're concerned, well, you've added this to state law now. I have to rent to somebody who is potentially here unlawfully because I don't wanna run a valid state law. Mhmm. I have concerns about how that may put me in breaking federal law or breaking And what [Chair Nader Hashim]: is that federal law, by the way? [Cameron Boyd]: I can see. It is eight USC thirteen twenty four. So these are criminal penalties related to bringing individuals into the country unlawfully, and then specifically there is says, any person who knowingly or in reckless disregard the fact that a alien has come to enter the workplace in the United States in violation of the law conceals, harbors, or shields from protection such a limit. So either federal criminal laws against, you know, again, harboring people, bringing people in, etcetera, etcetera. The courts have said, though so the third, fifth, eighth circuits state that harboring income to conduct that tends to substantially facilitate noncitizens remaining and prevents authorities from detecting noncitizens. The second, seventh, and ninth, or in the second circuit have opinion that harboring requires a defendant to act intentionally or purposely. So simply renting to somebody without you doing additional steps to try and prevent their detection from federal authorities. Courts have said it's not doesn't rise to the level of of that criminal offense. And folks [Speaker 2 ]: Yeah. I don't know that that the federal law contains the knowingly standard. Wouldn't the most protective be for have at the state level for really everyone, landlord, that tenant just be a prohibition on asking about immigration status? Because if you don't know Yes. I mean, [Cameron Boyd]: I think that's gonna be a defense for you as a landlord. Right? I didn't pass. Well, I mean, I [Chair Nader Hashim]: There's also reckless disregard there as well. [Cameron Boyd]: It's knowing or reckless disregard of the fact. [Speaker 2 ]: But if you don't know, you can't recklessly disregard it. [Chair Nader Hashim]: Well, I think there are arguments that you could depending on what the facts are. But, I mean, those are hypotheticals. I just wanted to make sure I knew that it was knowingly and reckless, but yeah. [Cameron Boyd]: Any other questions or comments? [Chair Nader Hashim]: Alright. Well, thank you. You're welcome. Appreciate it. Well, happy to hear.
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