Vermont Legislature SmartTranscripts:

[Rep. Martin LaLonde (Chair)]: To the house judiciary committee as we have the honorable judge, Zone, to weigh in on h four 0 nine. Along before we get started? Yep. One minute. Yep. We have a distinguished guest here. Excellent. Former representative Tom Coach who was a long time member of this committee if I remember right. Welcome to the chair.

[Rep. Kenneth Goslant (Clerk)]: Welcome back. Welcome back. Thank you. Hi.

[Rep. Martin LaLonde (Chair)]: Happy to have you here. Well, we'll try to start behaving then. So like we're fully functional like it used to be when you were chairing the price. We don't try our bets everybody. Right. Make it look like I am. Judge Zone, age four zero nine, if you could weigh in and I'm sure that there may be some questions that folks have for you, but over So to

[Hon. Thomas A. Zonay (Chief Superior Judge)]: for the record, Tom Zonnay, Chief Superior Judge, I have reviewed what I believe is the most current draft, draft 3.1 of age four zero nine. Section one changes the word expungement to the word ceiling, and that essentially catches up to the ceiling bill that you did last year and the year before, all the ceiling work that you've done, it catches up to that and makes it clear that when something is sealed, it does qualify under this for the bail review. And in fact, I expected something like that would be coming this year because I think it was most likely an oversight last year when everything was being done. No one was looking at this. And so this makes sense. As far as section two, last year, this was part of the miscellaneous judiciary bill. And at that time, and it was my position and the same position now that this clarifies what I heard testimony on from some who believe that there's a question as to this. And to the extent it removes the question, it is something that we certainly have no issue with at all. And just makes it clear that the state can appeal certain orders as opposed to wondering whether indeed it fell under C1 or other sections.

[Rep. Martin LaLonde (Chair)]: Okay. All right. Questions for Judge Zoni, because I know he-

[Hon. Thomas A. Zonay (Chief Superior Judge)]: and I do note that this version had it effective upon passage as opposed to the prior versions, which was July 1, and that certainly is fine. We can make that work too.

[Rep. Martin LaLonde (Chair)]: Okay. Great. Great.

[Rep. Angela Arsenault (Member)]: Angela. Hi, Joshson. Good morning. I'm just wondering in section two, looking at yesterday's version, so let me make sure I have the, like, line numbers correctly. But this idea of that any appeal an appeal can be affirmed or the order can be affirmed by a single Supreme Court justice. And there was a question yesterday I had a question when Kim McManus was justifying about the general practice preventing well, not preventing, but is it likely or possible that a single justice could reverse? There's so many double negatives happening. Have to make sure So there's an appeal of a denial for bail.

[Rep. Martin LaLonde (Chair)]: Bail revocation. Yep.

[Rep. Angela Arsenault (Member)]: Okay. So if that is appealed, then the state is saying, no, we really want you. We believe that the evidence supports revocation of bail to a single Supreme Court justice. And what we heard yesterday was that the most likely outcome, if the evidence potentially supports an overturning of that decision, it would just be remanded back to the Superior Court judge and saying with a note or notes, take a look at this. It seems like you might have missed this or that, rather than the Supreme Court justice saying, you're right, state, bail should be revoked.

[Hon. Thomas A. Zonay (Chief Superior Judge)]: So what you are highlighting is the distinction between section C and section D. Under subsection D, if you go to page four, on line four, it talks about if someone is held under 70 five-53A, that's the 60 hold without for a crime of violence, prior to shall be entitled to an independent second evidentiary hearing on the merits of the denial of bail, which shall be a hearing de novo by a single justice of the Supreme Court. So what would happen under a 70 five-fifty three A is that the appeal is basically a new hearing. It's de novo, they present evidence, and so in that appeal, the Supreme Court justice or judge assigned to hear that case as an acting justice would be able to say, yes, we are hold Our decision is to hold this person without bail. That is not the way that subsection C works. Subsection C works the same as any other appeal. The court decides issues of law and it would then generally remand it. There are times that a, an appeals court can look at something and say, we don't need to send this back, here's the decision. But I think that Ms. McManus' position that the most likely outcome is a remand would be accurate because that's the way that section is structured.

[Rep. Angela Arsenault (Member)]: Okay. And thank you for that clarification. So is it important then that the words modify or vacate remain on page three, again, yesterday's version. Think it's also yeah, page three, line 19, draft 3.1.

[Hon. Thomas A. Zonay (Chief Superior Judge)]: There are times that the appeals court, based upon what it has before it, can say, if you have conditions one, two, three, the court can say, we don't need to send this back. Three is no good. You can't have three. And so that would be modifying it or, changing it. So having that language there does provide flexibility to the appeals court in certain circumstances, we'll call it the right case, to be able to make changes to an order if it does not believe it needs to send it back for remand.

[Rep. Angela Arsenault (Member)]: And vacate is also important to keep?

[Hon. Thomas A. Zonay (Chief Superior Judge)]: Yeah. That vacate certainly is something that the court should have the ability to always do to an order.

[Rep. Angela Arsenault (Member)]: Yeah. Okay. So it's a very it's a different process. We're setting it's just a different process than the one you described in subsection d, And that's by design.

[Hon. Thomas A. Zonay (Chief Superior Judge)]: Is more Subsection D is a process that is used only for July. That was set up specially for those cases. This process that you are putting in section C2 is one that's used for all cases, for a bail appeals and conditions of release. And there was one more thing I noted when I was reading this. If you look on page four, line nine, since you're gonna be doing things with this, it says, or district judge, you might wanna cross that out. There's no longer district judges. So if it just said, or judge's consent or a superior judge and you deleted or district judge, that would clarify that we no longer have district judges.

[Rep. Martin LaLonde (Chair)]: Okay. Yeah, then we'll do that and we'll get a new version.

[Michelle Child (Legislative Counsel)]: Thank you.

[Rep. Martin LaLonde (Chair)]: Any other questions for Judge Ott? I don't see any, so thank you very much, judge. I really appreciate it.

[Michelle Child (Legislative Counsel)]: Thank you.

[Hon. Thomas A. Zonay (Chief Superior Judge)]: Have a great day.

[Rep. Kenneth Goslant (Clerk)]: See you soon.

[Hon. Thomas A. Zonay (Chief Superior Judge)]: Take care.

[Rep. Martin LaLonde (Chair)]: Yeah, thanks. Good luck with your new part.

[Hon. Thomas A. Zonay (Chief Superior Judge)]: Thank you. Thank you.

[Rep. Martin LaLonde (Chair)]: Perfect timing. So we're doing H409 first.

[Michelle Child (Legislative Counsel)]: You gave me?

[Rep. Martin LaLonde (Chair)]: Yeah, we were going to check with Eric on that issue with our Right.

[Rep. Angela Arsenault (Member)]: Thought that we I thought that that

[Rep. Martin LaLonde (Chair)]: got resolved. Did that get resolved? I thought that that

[Michelle Child (Legislative Counsel)]: got resolved. Was I incorrect? And I checked it right.

[Rep. Martin LaLonde (Chair)]: I didn't think it was resolved.

[Michelle Child (Legislative Counsel)]: Okay.

[Rep. Angela Arsenault (Member)]: You're live. Good

[Michelle Child (Legislative Counsel)]: morning. For the record, Michelle Child, from the legislative council. So I did speak to Eric about that issue. He was saying that the two issues of what you're working on on the bill, and these are separate issues. And then your question was about whether or not if there are repeated like, under the current system. So let's say that your proposal you know? So it doesn't exist. You know? Right now, they issue the citation, right, for the for the reappearance Sometimes. Rather than arrest. Yeah. Right. So I think my your your question was if they are do multiple kind of issues of citation and they keep failing to show up at the initial appearance, could they impose something beyond the $200?

[Rep. Martin LaLonde (Chair)]: It's the No. No. That's kind of a blend of two different things, it sounds like to me. But So can I suggest, Scott, that you and I sit down with Eric and Michelle afterwards just try to Maybe Good? Make the straight and So it's Yeah. We're gonna be

[Rep. Kenneth Goslant (Clerk)]: comfortable with that. I I I mean, they may be completely independent of each other.

[Michelle Child (Legislative Counsel)]: Right. And when I did talk to Eric about what we were talking about here and there, he was like, they're totally different things. And he was of the same opinion that these were completely separate.

[Rep. Martin LaLonde (Chair)]: So Fine with that. So, I mean, we can still talk a little about that other thing to make sure we got that right.

[Michelle Child (Legislative Counsel)]: Sure. Right. And I thought that Kim had answered the other question about, like, if a person comes back in because it'll still be their initial appearance because they haven't appeared before, that they would be under the $200

[Rep. Kenneth Goslant (Clerk)]: Yeah. I was fine with that.

[Michelle Child (Legislative Counsel)]: Okay. That's what I thought your question was.

[Rep. Martin LaLonde (Chair)]: I No. I just thought this was more of an appropriate place for what Right. I was proposing to be, Which I don't think it is, but if it is, we can still do it. Don't have to We're hold this up a not prohibited from further amending 'seventy five, 'fifty '1, if that's what's wrong. But we do have one amendment that I'm going need you to make and have me send us that updated version that we can vote on towards the end of voting if that works out, if people are ready to vote. That is on I don't know if you have the draft, but it's draft 3.1 These things are line nine. Should strike board district we don't have district jobs. Oh, it is. So that tweet, if it can be given in 3.2 or whatever that Sure.

[Michelle Child (Legislative Counsel)]: That's no problem. I'll do that as soon as I'm probably going to share. But And, you know

[Rep. Kenneth Goslant (Clerk)]: Can we just go back to page two that I brought up yesterday for that longest that longest Okay. Signage ever in history and just get clarification, which I I should have done with the job care about specified hours and stuff. I'd really like to know what that is Unless somebody found unless somebody found out about it and knows. But

[Michelle Child (Legislative Counsel)]: So, Kenny, I'm sorry. Can you direct me to the page

[Rep. Kenneth Goslant (Clerk)]: in Page page two Mhmm. Starting on line 12.

[Michelle Child (Legislative Counsel)]: To return to custody after specified hours is continued. So, I'm presuming that that is something somebody has perhaps some type of arrangement with DOC that they're allowed to. I don't know what the status is, they're they're under some kind of furlough that they're on supervision. They're allowed to go to a job or something like that and then return to custody. But I can follow-up on that. Was Kim not able to answer that?

[Rep. Kenneth Goslant (Clerk)]: No. I didn't get an answer. But it's it's it's kind of out there in the air, like, who makes that decision and who doesn't. I mean, if it's DOC or something like that, that's that's

[Michelle Child (Legislative Counsel)]: Well, I'll I'll I'll reach out to DOC and get an example of what they do.

[Rep. Kenneth Goslant (Clerk)]: It just seems like there's a long range of where that could fall. Tom, you must deal with this, right? Pardon? I'll read the whole sentence, buddy. Going back to the the specified hours that I was asking about yesterday with this. I mean, who who dictates that and and and what does it really mean? Well, I mean, what?

[Rep. Martin LaLonde (Chair)]: Page two, line 13. 13.

[Rep. Angela Arsenault (Member)]: I would love to see this rewritten. Don't even think it's what we're dealing with. I honestly don't even think it's what we're dealing with. It is so poorly. It's very hard to understand what this is.

[Rep. Martin LaLonde (Chair)]: There's a lot of thought to that. I'm not gonna read put in that bill request to rewrite that.

[Rep. Angela Arsenault (Member)]: I think if we could maybe

[Rep. Martin LaLonde (Chair)]: Or maybe just short form. Form, and then you can work on

[Rep. Angela Arsenault (Member)]: that way.

[Michelle Child (Legislative Counsel)]: I think it would be important to

[Rep. Angela Arsenault (Member)]: know if this has anything to do with, like, what what this bail revocates. It doesn't. Right? It

[Rep. Martin LaLonde (Chair)]: It's on any duty we're trying to do.

[Michelle Child (Legislative Counsel)]: Right. It's not domestic and a miscellaneous Well, the thing is that we really would prefer not to be amending the same section of law multiple times in the same year? I mean, just because sometimes if bills are all kind of come you know, like, at the at the end, it gets a little a little crazy.

[Rep. Martin LaLonde (Chair)]: Right. So so fine. Well, so we we won't vote on this. We can if you can work and Angela can work on seventy five fifty six a, and see if you can make that make sense. Kenneth, you have

[Michelle Child (Legislative Counsel)]: to Please email Zonay and ask him under what's

[Rep. Martin LaLonde (Chair)]: What Ian said, if it if

[Rep. Kenneth Goslant (Clerk)]: it doesn't matter, what's it doing in the snow?

[Rep. Martin LaLonde (Chair)]: Well, it's it's there's just changes that they make if there's ever a him or her changes to the person. It's just those kind of what do you call those changes? I mean, just the Drafting.

[Michelle Child (Legislative Counsel)]: Just conforming to our drafting manual. We have a drafting manual. We use gender neutral language now. So when we see, you know, those types of terms, we change all, you know, things like that. This because this was something that you already had passed and voted on last year when I didn't rewrite it, like the I didn't rewrite existing law just to make it sound better. I just picked up the substantive pieces of it that you had already passed the house last year. Happy to rewrite it. I love to rewrite super long sentences and unclear language that's been there for a long time. But I just you do wanna get clarity on, you know, the issue, I guess, of the whether that's, you know, like a work furlough or something like that. And I can reach out to judge on that. But I will caution you just on one thing, which is sometimes if you're going to rewrite something that has a lot of pieces to it, sometimes stakeholders who are working with those statutes want to then come in and have a say about that rewriting because they may there's things like I'll give you an example. So in the domestic abuse prevention statutes in title 15. Right? And there's this they use the term family or household member. Right? Everybody gets all, like, confused about what household member is. And there's a definition, and then it's, like, under the definition of household member, then it also includes people who have a dating relationship. So they're not actually in the same household, but maybe they have a dating relationship or maybe they hooked up one time and that counts as a dating relationship within couch as a household member. Like, it's messy and I've always hated it and always wanted to kind of take a stab at rewriting it. But people are used to working with the existing statutes. And so sometimes there can be a little it it could be like a, you know, we're gonna just rewrite this, but maybe there's a little friction in the stakeholder community about rewriting. So what

[Rep. Martin LaLonde (Chair)]: this is saying to me, thank you, is is that this could open a full can of worms. Right. And it detracts us from what we're actually planning to do with this. I mean, this is existing language. People worked with it for a while, presumably. Yes, it could be written. It could be a lot clearer. But it's really not relevant to what this bill is about, except that it's in the same section. And that is trying to make it so state's appearance can appeal bail revocation. Section A has nothing to do with that. So there's the will of the committee, if they want to step back from this for a while, I think there's other things that we need to work on that are a little more of a priority. I prefer that we proceed with what we do have in here and put this on our list of things that we want to change for next biennial change.

[Michelle Child (Legislative Counsel)]: The thing is, is because you're not changing that one section, you actually could do it in miscellaneous because you could just do that one subsection, rewrite the sentence, and stick it in miscellaneous without it affecting what you're passing in here. Do you know what I'm saying?

[Rep. Martin LaLonde (Chair)]: Right. So so we could do that. Yes.

[Michelle Child (Legislative Counsel)]: And then Eric and I will just try to keep track to make sure that there's not an issue with effective dates. But usually, there's not a problem in the sense of miscellaneous is usually the last one across the finish line. So

[Rep. Martin LaLonde (Chair)]: Yeah. We're doing effective date immediately on this

[Rep. Angela Arsenault (Member)]: one. Right. Oh, great.

[Michelle Child (Legislative Counsel)]: And so this one if this, you know, senate takes it up right after crossover and it goes to the governor and is signed, then there's really no you know what I mean? So there's no problem with that. Okay. And I already made the change on here. So you I do have version 4.1 if you do wanna get it out of here.

[Rep. Angela Arsenault (Member)]: I'm just gonna echo this of saying that it has that it shall take effect on passage. That seems like there's a timeliness piece to this, so it would be great to move it forward as we can. And I feel like it's also moving the judiciary process forward, which is a goal of ours. We can keep things moving. And so I'd say let's go as is and revisit if we can.

[Rep. Kenneth Goslant (Clerk)]: So I mean I I mean, no disrespect. I mean I mean, nothing bad about this. But instead of just kicking the can down the road, why don't like so many other things that I've been in here now for slowing on my eighth year, why don't we get it right the first time so then we don't the future legislators don't keep revisiting the same old thing and maybe catching something. And that's where I'm at with this whole thing. And if it and if it's a simple fix, if it's a simple fix and we still keep a long ungodly sentence, then then then fine with it. But it's like it's like, oh, we'll let somebody else worry about it. Like, I've heard that for so many times that that

[Rep. Martin LaLonde (Chair)]: So so I I completely disagree with you. Well, of course. But why wouldn't you disagree with me? Particularly in the context of this bill, we're trying, this paragraph, I agree it's confusing and probably needs work. And we just talked about another avenue that we can do that for the miscellaneous bill. And we can get this one moving because we want to get this ability to appeal as soon as possible for states attorneys. And we want to fix this expungement versus ceiling confusion that we have in the other section. So I'd rather get this one out and and you and and Angela can work with Eric on language for a that you can put in the miscellaneous bill. I'll work with

[Rep. Kenneth Goslant (Clerk)]: you on this, Martin, but I'm watching you. No. So I mean, that fair?

[Rep. Martin LaLonde (Chair)]: I mean, well, know, that's that we'll we'll do that. Isn't it one thing they could do right off the bat? Just have a short form bill written up, then we got it. You could do that too just as a belt in suspenders, but I think it's on paper. It's something that can be worked out for a minute. Right. If it doesn't work in the miscellaneous bill, have a consent.

[Rep. Angela Arsenault (Member)]: What I also

[Michelle Child (Legislative Counsel)]: want to mention is that

[Rep. Martin LaLonde (Chair)]: Potentially that short form could be taken and put into the miscellaneous bill. Yeah, yeah, no, I suggest do both. Get all the merit for the miscellaneous put in short form bills so we have two vehicles that we can fix. But moving this one along

[Michelle Child (Legislative Counsel)]: I'm gonna offer you a third option as well. Know they have options, which is this is gonna go to the senate, and it's gonna sit over there till after crossover.

[Rep. Martin LaLonde (Chair)]: If you go to bed Or

[Michelle Child (Legislative Counsel)]: or maybe not. Maybe maybe over here. Oh, okay. I was gonna say, you know, if you're just changing language around readability, it's not substantive. We meet with, your counterparts regularly. You could easily ask them, say, would you mind making this language change?

[Rep. Martin LaLonde (Chair)]: So so again It's not substantive because we don't know, again, what's gonna happen with this. Right.

[Michelle Child (Legislative Counsel)]: But I'm just saying if you have the language and you say, well, we don't wanna wait for miscellaneous, we're gonna ask the senate to consider just, you know, rewarding this sentence.

[Rep. Martin LaLonde (Chair)]: So before we get too far into this, were they miscellaneous bill or a short form bill that I know Michelle was busy but could she ask the questions that need to be asked to find out if we're going to blow something up by getting into this where it might not even be worth moving forward. But I think we do that when we're looking at miscellaneous bonus vehicle for it. Okay. I just think we should just move this one along because we want this to be No, no, I'm saying move this along but in the meantime, still take a look at it other than having these folks do work on it and then find out after they put work and time into it and find out that it's just not something that makes sense to do.

[Rep. Angela Arsenault (Member)]: Yeah, think that'll be part of the investigation.

[Rep. Martin LaLonde (Chair)]: Yeah, I think they should right away be working with her. He's working on the miscellaneous bill. Right now is the time to start to set Oh, it good. Thank you. All right.

[Michelle Child (Legislative Counsel)]: I will touch base with Eric on this and also I will reach out to judge certainly.

[Rep. Martin LaLonde (Chair)]: So does everybody want to have version 4.1 in front of them?

[Michelle Child (Legislative Counsel)]: I already emailed it to everybody and Nate has it as well.

[Rep. Martin LaLonde (Chair)]: Is that good enough or do you want a hard copy that has that one change striking or disparate judge?

[Rep. Angela Arsenault (Member)]: Don't even have the personal email. Great.

[Rep. Martin LaLonde (Chair)]: That was more substantive, I would say card, Facebook. But you're okay. All right, I'll take a motion to obtain H-four zero nine draft number 3.1. It's a strike all amendment. 4.1. We're a team here. Yeah. Version 4.0409, strike all amendment to the bill as it was introduced. That right? It's a strike all amendment. Is that fair?

[Michelle Child (Legislative Counsel)]: It is.

[Rep. Martin LaLonde (Chair)]: Thank you. Is there a second? Second. All right, any discussion? Very briefly, even though I really appreciated that riveting discussion around the Section A of the revocation bill, moving this forward as quickly as we can because of the confusion around the $200 bail cap on misdemeanor offenses in Vermont right now. Really important. So I'm glad that we're not going to slow this down, that we can push this through, and then hopefully we can address all the concerns on that section later. Just remember, it hasn't passed committee yet. Hope. I hope. Any other discussion? You don't want me to talk about it.

[Rep. Angela Arsenault (Member)]: I'll just be very curious to see how this plays out.

[Rep. Martin LaLonde (Chair)]: Well, of course. I mean, like Always with our

[Rep. Angela Arsenault (Member)]: I know. But are we keeping track? Oh, so should we have added a Having a We

[Rep. Martin LaLonde (Chair)]: can always go, well, report that. We can we can, on our own, ask on an annual basis how often are these occurring. And I bet you, if there's any Supreme Court opinion on bail revocation, we will know about it.

[Michelle Child (Legislative Counsel)]: That's true.

[Rep. Martin LaLonde (Chair)]: Yes. Is true. Because that's all this is doing is Right. So you get something to the Supreme Court as we vote. We do legislative counsel. Actually, somebody turns in here. It's actually me who followed what's going on in the Supreme Court something else. Ian will let you know. That's good. Anything else? Yes. No. Kind of playing out Ian's concern that I look at as as important as getting that expungement removed and missing. Yeah, there's some confusion out there. With all the work that we've done on ceiling for the last ten years. We're doing more, by the way, with the diversion of that pill test. That's a little Oh, yeah. Sorry.

[Rep. Angela Arsenault (Member)]: Will Just to take away to to to a more serious point on so I do think it's important. Every everything we do, we should be tracking as fast as we can. And particularly when we're talking about something like this, bail revocation, when we're talking about incarcerating people, we want to make sure that it's being used judiciously, no pun intended, but wisely, So that's where I'm coming from. I don't take this lightly.

[Rep. Martin LaLonde (Chair)]: No, no, no. I agree. No. I appreciate that. Thank you. Anything else? Could the clerk call the roll, please? We have to have somebody They did. Who did? Who did it? Ian. Ian. And the second one's Karen. Arsenault?

[Rep. Angela Arsenault (Member)]: Yes.

[Rep. Kenneth Goslant (Clerk)]: Roland? Yes. Bednow? Yes. Rosemount? Yeah. Harvey? Yes. Malay?

[Rep. Alicia Malay (Member)]: Yes.

[Rep. Martin LaLonde (Chair)]: Oliver? Yep. Rachelson? Yes.

[Rep. Kenneth Goslant (Clerk)]: Christie?

[Rep. Martin LaLonde (Chair)]: Burditt? Yes. We're wrong? Yes. I understand Ian is, unless somebody else is eager to do this, Ian would be the report. Make sure we get that 4.1 to the clerk's Office. All right, well, you. Should we just take a five, yeah, let's take a break until 10:30.