Vermont Legislature SmartTranscripts:

[Speaker 0]: This year Bless you. Please. Thursday morning, January first. And

[Speaker 1]: we are gonna take some additional testimony on h five forty one. And we have Sally Ober, town clerk of Lincoln, joining us. Thank you so much for being, Karen, being willing to talk to us. And if you could

[Speaker 0]: identify yourself for the record and proceed.

[Speaker 2]: Great. My name is Sally Ober. I'm the town clerk in Lincoln, Vermont. So just ready here we go. Good morning and greetings, Chair LaLonde and committee members. Thank you for considering this important topic of interference with election officials and the process of voting. Voting is part of the foundation of our democracy, and we must be ever vigilant to protect it. I am here today as a member of the Vermont Municipal Clerks and Treasurer's Association. It's VMCTA for short. It's a big mouthful. Our mission is to provide education, mentoring, advocacy, and more to town and city clerks and treasurers of Vermont. Our VMCTA executive board just very recently adopted a resolution condemning interference and threats toward election officials, and I will read that statement to you now. The Vermont Municipal Clerks and Treasurer's Association strongly condemns threatening, harassing, bribing, or interfering with election officials, either while performing their duties or outside of work hours. We also condemn threatening, harassing, or interfering with the lives of their family members, pets, or close friends. Election officials perform their work under oath to uphold the laws of their state and of The United States constitution. Injurious acts toward election officials will not change the outcome of a vote. Anyone with a complaint about the acts of an election official should follow the procedures of law as required by 42 USC Section 15512A and 17 VSA Section 2,458. Our association was prompted to adopt that resolution recently because of some repeated activities that are going on, and I'll give you some examples of those activities. I just want to make clear that what I'm about to share with you is my personal experience. I have been serving as an elected town clerk in Lincoln for nearly twenty years. I consider my job of running elections to be among my most important duties. Elections are run locally in Vermont, and the results matter nationally. For all of my life, I expected that the elections in The United States were run freely and fairly without tampering. When I became a town clerk in 2006, my assumptions were confirmed. Town clerks and local election officials take their jobs very seriously, and we do everything in our power to run elections according to law. In my experience, our laws are set up well to ensure election integrity. It wasn't until 2016 that my assumptions were rattled. Just days before the November general election, I received a disturbing email with about a seven page manifesto informing me that there was a CIA terrorist cult in Vermont, and if I didn't pay attention, people were going to die. This message was so long and involved, I barely had the capacity to read the whole thing because we clerks have a lot to do in the final days before an election. I was alone in the office, and it really upset me. I didn't know whether to dismiss this email as junk or do something. Because it involved threats of death to unknown persons, I reached out to our secretary of state's office and reported it. When I tried to block this sender, they sent me another similar message from a slightly different email address just before the next federal election. Since 2016, I now have come to expect to receive some sort of disturbing or time consuming message in my inbox before federal elections. One year, all Vermont town clerks got an email about registering someone to vote. This person had a very complex story and said that they wanted to vote for a certain candidate. The complexity of the question prompted some clerks to ask for advice on our our Clerks Association online list serve. We found out that every clerk in Vermont got the same emailed request. Some of them said that the person wanted to vote for candidate X, and some of them said for candidate Y. It felt like we were all being tested on how we would respond. We got the director of elections involved, and clerks were informed to disregard disregard that message. Taking the time to respond to this fake request interfered with our election preparations. Before another election, clerks in Vermont got emails informing us that our vote tabulator machines were corrupted, and we should cancel the election because the results would not be valid. This sent many clerks into a frenzy trying to figure out how to handle the situation. Canceling an election is not within the authority of town clerks, nor is it within the authority of the Secretary of State. The way to invalidate an election is after the fact by following a legal complaint procedure. In 2024, a threat came much closer to me personally. A voter whom I know came into our office with his adult son to pay his taxes before the general election. He often gives me a hard time about elections, and this time he told me that if a certain candidate won the presidential election, there would be war, and he would send his son to fight. It wasn't until after they left that I wondered whether I was being included as a target in this war. I don't know if this voter is connected to the other email threats that I get, but this one felt much more personal like being right there in my face. I stopped my election preparations to report it to the FBI, which took quite a lot of my time. All of these incidents are distracting from doing the work that we clerks need to do to be well prepared for running free and fair elections. Making the penalty for interfering with election officials more than a misdemeanor will hopefully be a greater deterrent for people to disrupt our work. Threats and interference toward election officials and volunteers can drive out good people from doing a very challenging but important job for our country. I hope H541 can help. I thank you for your time and consideration of my testimony, and I would be happy to answer any questions.

[Speaker 1]: Thank you very much. Questions for Sally?

[Speaker 0]: I have one. Yeah, go ahead. Thank you, Chair. Sally, thanks so much for your testimony today. After you reported the incident to the FBI, and I'm sure that must have been a really, really terrifying experience, right? Something that you're not accustomed to, especially after your years of service to the town of Lincoln. I'm curious if you reported to the secretary of state's office and if they had a response.

[Speaker 2]: Yes. I did share with them, and, I I actually just wondered if I should report it. So they were the ones who encouraged me to take it to the FBI. And I guess what I got out of it was that as a clerk, it's not really my place to decide how credible these threats are. Know, like, people can type anything they want. They could just have a bad day and send something out and try to rattle you a little bit, and it there may be nothing intentional or real behind their threat.

[Speaker 0]: Right.

[Speaker 2]: And so what I learned was it's best to report because if this continues, then we'll have a record that this is sort of an ongoing issue with perhaps this particular person. I guess I never really heard much back from the FBI other than sort of what felt like an automated response saying, thank you for your evidence and submission. They never really I don't think they really followed up and said, yeah, this person's someone we're very concerned about. Think it's just sort of putting it on the record

[Speaker 0]: I think that's very important that you did the right protocol as recommended by the Secretary of State's office. And you said that you've been a clerk since the year 2006. Is that right?

[Speaker 2]: Yes, that's right.

[Speaker 0]: So I imagine in the last almost twenty years of service, you've met a lot of other town clerks around the state of Vermont. And I'm sure a lot of them you count as friends. And I'm wondering if the experience that you've had in Lincoln is, feel, and again, this is your perspective, but a more isolated experience or if it's something a bit more pervasive around the state of Vermont.

[Speaker 2]: I'm not sure how widespread it is in Vermont. I know it's horrible in swing states, and we have spent a lot of our election trainings now preparing for threats and violence. That part of it's really disturbing. The people that came to give trainings are former election officials who said they quit their job of being election officials because people were threatening their children, their grandchildren, their pets, killing their dogs. It was horrible to hear what's happening in other states, and I really don't want it to become a big thing here. Right. And and there are other clerks in Vermont who actually have to seal off their doors with cameras and locks and only let people in to be buzzed in because of people who threaten them. I know there are there's one in Addison County who's hurt their door. Like, you can't just walk into that town office anymore because of the people in their community that threaten the clerk. And I don't know if it's all about elections. It could be about other things that people are upset about, but it it's out there.

[Speaker 0]: Yeah. And do you get the sense that it is one political party over the other?

[Speaker 2]: I was told not to be political here. I don't know, but I can just say that I I think all of us in this room or in that room and everywhere can say that the discord in the world of politics has kinda ramped up in the last ten years. I I really don't like to point fingers. I'm I'm a neutral town clerk who runs elections fairly, and I I have a sense, but I don't feel like saying.

[Speaker 0]: Alright. Well, I appreciate that. And then and certainly, as someone on the committee as an elected official, you know, I've had my own experience with, you know, people in my own town that, you know, whether it's intimidation of public officials and threats and emails and phone calls and texts. So I unfortunately can empathize and relate to your experience and you've had to go through that. And I think I speak on behalf of all of us when I say thank you for your service to the state of Vermont because it it really is a very noble duty that you do, and I'm sure that I know the town of Lincoln is very fortunate to have you.

[Speaker 2]: Thank you. I also would I just would also like to point that I'm here talking about clerks, but I'm pretty I have a pretty good sense that there are also threats towards our state election officials. I don't know the details, but I get in conversations, we're close with our secretary of state's office and the elections team. And I know past election officials have had some pretty disturbing things happen to them. I'm not in any place to share details about that, but it's not just town clerks. It's our state officials too, And they need to be protected just as well.

[Speaker 0]: Absolutely. Thank you.

[Speaker 1]: Thank you very much. Any other questions? Not seeing any, thank you so much for taking the time to testify today. Really appreciate it.

[Speaker 2]: Thank you. You so much. Thank Thank you. I think I'll hang on and hear what others have to say.

[Speaker 1]: Excellent. Yeah. Welcome to do that. Welcome to do that. So we're gonna turn to judge zone a next if we can. I know it's a little out of order, but I see that you're here and available now. So over to you, judge.

[Speaker 3]: Good morning, Tom Zone, Chief Superior Judge. I'll just kind of run through the bill. Obviously, this is a policy decision for the legislature and I won't be commenting on the policies. If you go to page two of the bill, I think it's important to keep in mind that in 2022, the legislature made changes to title 13 BSA section 17 o two that talked about criminal threatening. Subsections e and f were added that tied into election candidates, elections. Subsection e provided that a person who violates the criminal threatening statute with the intent to terrify, intimidate, or undo or unlawfully influence a person to prevent that person from complying with state laws or rules, state court or administrative orders or state executive orders shall be imprisoned. And then subsection f goes down to talk about if you violate it with the intent to terrify, intimidate, or unlawfully influence the conduct of a candidate for public office, a public servant, an election official. And so I point this out because several years ago, the legislature went through a process to bring these types of statutes into the criminal threatening. And now it's a policy decision if you wanna kind of break that up and put another section that seems to be similar, not the same, similar in title 17. But I just wanted to highlight that you already have criminal threatening that does tie into a number of actions that relate to elections in title 13. The there is a difference between the title 13 and title 17, the proposal in section two. Under title 13, the criminal threatening statutes say that a person shall not by words or conduct knowingly threaten another person or a group of particular persons, and two, as a result of the threat, place the other person in reasonable apprehension of death, serious bodily injury, sexual assault, and smother language. And I point that out because section two of the new bill five forty one does not have that second clause. And so it changes the conduct. It does not require the reasonable person apprehension or the reasonable person side for the apprehension. It simply just requires the actions. That's a policy decision, but I wanted to make it clear that the legislature, this bill is setting up things that deal with similar conduct that could theoretically fall under both and you're giving different standards.

[Speaker 1]: Right, and we also had a question and one of the biggest questions on this bill is the constitutionality relative to the truth threat doctrine and certainly have more testimony. And part of it is that we are basing it off of the federal law and double checking, but my initial check earlier this fall was that that law hadn't been challenged or hadn't been found unconstitutional. And so, yeah, it's slightly different standard in the context of voting certainly, but I understand what you're saying and we'll need to look at that a little closer.

[Speaker 3]: Subsection, two, line 16 on page two, it says a candidate for public office, a public servant, an election official, or a public employee for the purpose of interfering with the preparation or operation of an election. Candidates, I do not believe, prepare or operate an election. They run-in an election. So I would take a look at that language. I I don't see that you that that language, that clause is necessary in there because that seems to be focused on preparing and operating. On page three, line three, it talks about the attorney general's ability under the chapter to take certain actions, where the attorney general may institute any appropriate action, injunction, or other proceeding. I think you need to change the word injunction. There's not an institution of an injunction. It's an action seeking an injunction or an action seeking injunctive relief. The injunction would be what they're seeking in the action. Right. Same page, line nine under civil investigations. It says that the attorney general or state's attorney can have any designated agent or representative. And just to be clear, that any designated agent or representative, that is a very wide berth. In other words, they could hire anybody, not a law enforcement officer, not someone employed by them. They could contract out to anyone to come in and do it. And so designating that designation seems to be without any guardrails for who they can bring in.

[Speaker 4]: Right.

[Speaker 3]: Line 11 talks about written responses under oath to questions bearing upon each alleged violation. So it seems like what that is an attempt to include is basically what we would call in the civil world interrogatories. You put out a question and then you have the rules, you have to answer it under oath. There's no timeframe set forth here for how long someone has to answer them. There's no procedure for the scope, the number, the types of things that are generally controlled by the rules of civil procedure. What this basically would provide is that the attorney general or state's attorney could theoretically send out as many as they want and say, got five days to answer them. And so without any guidance here, it could lead to some issues.

[Speaker 5]: Right. Could that just be pursued to Yeah,

[Speaker 1]: that's all can. Okay, yep. Thank you for that.

[Speaker 3]: On line 14, it says they can then do an in person attendance, they could require, of any person having knowledge in the premises. I have no idea what that means. It's not a legal term that I could think of, but similar to my comments about the written responses, this seems to be saying they can do depositions. And so it seems to be a cross between allowing almost an inquest type procedure where someone has to show up and answer questions about a matter under investigation in the criminal docket and civil discovery. It doesn't seem to land in either one. Then I think I jumped to page

[Speaker 4]: Five.

[Speaker 3]: Line three. A person upon whom a notice is served pursuant to the provisions of this section shall comply with its terms unless otherwise provided by the order of a court of this state. So what it appears to be attempting to do with this section is to say you have to abide by it unless a judge says you don't. But you then have to wait to find out, well, it doesn't say anything about my ability to challenge this if I have to abide by it. What are my rights? And that seems to be on page six, line four. Any person aggrieved by a civil investigation may seek relief. And so appears that the intent is to say that someone has to abide by it under b one unless they do something under subsection d, the first sentence, and a judge says they don't have to do it. So my suggestion would be if that is the intent, you would possibly wanna move what's at the end in subsection d up to the section that talks about you have to abide by it, but here is your right. Put it all together. Here are your rights to challenge it. It also uses the phrase aggrieved party. I suppose the aggrieved party standard is broader than saying a person against whom who's being investigated, but the only person who could be aggrieved is a person upon whom the notice is being served, correct? And if the answer to that is yes, why wouldn't it just say a person upon whom a notice is served? Because the entire chapter seems to be focused the entire section seems to be focused on someone being served with the notice or to either provide written materials or show up for in person under oath testimony. And then finally, the second sentence of subsection D on page six, lines six through nine, except for cases the court considers to be of greater importance, proceedings before superior court is authorized by this section shall take precedence on the docket over all other cases.

[Speaker 1]: All well fair enough.

[Speaker 3]: Say anything more on that from

[Speaker 1]: I don't I don't think so. So is that is that the language that see, my understanding was this is like current law taken from our campaign finance law under title 17. So I think that language is hiding somewhere else.

[Speaker 3]: It may be. But if it's hiding, we need to say, ali ali, oxen free, we need to get them out, and we need to

[Speaker 1]: Here's the good thing is that this bill is now on a longer runway because this whole section is going to be worked on so that we don't have essentially equivalent enforcement sections in different places in Title 17. So I think we're going to be in a position to correct that provision right there.

[Speaker 6]: Is accurate, Darzoni, if my note next to that sentence is just, no? That's my paraphrase.

[Speaker 3]: I'm a go with that.

[Speaker 1]: Okay. All right. We've just

[Speaker 0]: been talking about this, whether we

[Speaker 1]: say promptly or ten to twenty days and this one just does it. This

[Speaker 3]: one just puts it right up to the top.

[Speaker 1]: Right, right. That's it.

[Speaker 3]: You what you're

[Speaker 1]: No doing weekends for you either. Any questions for Judge Zone on these? Don't say thank you very much. This is all very helpful and gives us things to think about over the next few weeks as we work off that other language.

[Speaker 3]: Sounds good. Have a great day. Take care.

[Speaker 1]: All right. Thank you. All right. We'll go with Ken McManus next. Have we heard from Matt Valerio if he's He's not confirmed that he is testifying? He wants to confirm. Okay. See.

[Speaker 6]: He disagrees with me.

[Speaker 1]: I'm not if that's the case.

[Speaker 6]: Good morning, everyone. Kim McManus, Department of State's Attorneys and Sheriffs. I'm excited to hear that there's a longer runway on this bill, only because I'm going to bring up a few issues, I don't have solutions for you. I did not have time to kind of answer give some answers. And I'd like to have that time to be helpful to the committee. But big picture, I've not been able to canvas my department on this bill. However, I feel fairly comfortable and confident saying that we, of course, support anything that's going to make our voters feel safe in being able to express their opinion without any fear or threat to themselves. We do have just and I think this has already come up in some testimony. Since there is the provision of the criminal threatening statute, this is a different standard, which it appears to be. It's not that someone has to show fear of death or serious bodily injury. We would suggest defining the terms for intimidate, coerce, and threaten for what you want those to mean in the statute for this situation, that would be very helpful. Of course, if this went through, litigation would parse some of that out. But because, especially around threatening, we have case law and definitions coming from our disorderly conduct statute, our criminal threatening statute, also previously the old probation condition dealing with threatening, it would be very helpful if you all guided us on what you want those terms to mean in this context. And again, I don't have those definitions to offer you today, but I can do a little work on that to suggest some language if you would like. Also, of course, you have your very capable ledge counsel to do that. The other piece that we would suggest, this as written, appears to want to capture words, not just words and conduct. And if that's the case, we would suggest adding in the clause that appears in the criminal threatening statute that explicitly says I'll just get the language, pretty notes that a threat and threatened do not include constitutionally protected activity, which will, we think, help some of the issues that have come up around that true threat piece. Because again, we do have language and case law around that. But we think adding that type of savings clause in here would help, would be helpful. Judge Zone pointed out the what standard as far as objective standard for how that person is feeling, that threat, that would be helpful, again, to add that reasonable person language in there if that is indeed how you want it analyzed versus how an individual would feel from the behavior. Lastly, I wanted to point out and again, this sounds like a longer conversation for another day when we're revisiting Title 17 and these civil investigations. We just want to note for the committee, our department does not have the bandwidth to do these civil investigations. We do not have the resources to do this. We appreciate that this language was copied from campaign finance law. I can assure you we are not doing those investigations. We have, I believe, three or four investigators embedded in our department, almost exclusively doing domestic violence investigation. Just so everyone knows, this is not something that we can actively, proactively manage right now. So we just wanted to mention that. But again, it sounds like there's more work and discussion on those sections. So we can come back another time on that.

[Speaker 1]: Yes, there's going to be quite a bit more work on all of this.

[Speaker 6]: And again, we support an additional tool, depending on the facts and circumstances, that this may assist in these areas, but we would like a little more guidance.

[Speaker 1]: Understood. Okay. Any questions for Kirk at this stage in this pill's path? I don't see any, so thank you very much. Defender General Valerio, if you can join us. Thank you for being here.

[Speaker 4]: Happy to be here.

[Speaker 1]: Really?

[Speaker 6]: They come frass.

[Speaker 4]: I have a sometimes, you know, kind of flat presentation. I got a feeling by the time I'm done, it won't be as flat. Now I can see.

[Speaker 1]: Yeah. That's important. Well, if you identify yourself for the record and proceed. Thank you.

[Speaker 4]: I am the guy who you just said I was. I'm Matt Valeria. I'm the defender general for the state. And I'm here to look at h five forty one. I've reviewed this. I've had our appellate division review this. And let me say that with this bill, as with any bill or legislation that looks at abridging speech, you are in deep water with ice skates, and you better hope the ice is thick enough, because, you're on very thin ice, if any ice, with this with this bill. Now I'm sure that other commenters so far have brought up the issue some of the First Amendment issues that arise when you're dealing with threats, and the difference between a true threat and, not a true threat. And I would just note that the interesting thing about this as compared to, say, disorderly conduct or criminal threatening or that sort of thing is you're talking about speech here in the political arena. The most highly scrutinized area of speech that there is under our US and Vermont constitutions. It is looked at by courts under a standard of strict scrutiny. Okay? And so it is a very limited area that you can get into usually requiring some sort of combination of speech and action or speech and imminent violence or imminent threat of action that could be violent. And as a result, this bill has written and I know it's as introduced and it's a first draft, and you're gonna, you know, beat it to death over the next few weeks, as it should be, to try to weed out the problems and identify the things that maybe you can protect against. Phenomenon that we are trying to and I I think you're trying to look at here cuts both ways. Right? So on the one hand, you have the president decrying the violence of protesters in Minnesota and saying, well, that's not speech. You know? And on the other hand, you've got people concerned about, you know, like the violence we saw on January 6. Okay. Even maybe that's being rewritten. But the bottom line is you have that type of violence that clearly was action but there's also street threats and we just like two sides, you know, and this doesn't just cut against whoever you don't like speaking. And that's kind of the whole point of the First Amendment. The people who you really hate their speech and hate their the level of vitriol that they put forth in attempting to kind of get their side across. It's particularly in the political arena. It's offensive to people on the other side, people in the middle, sometimes people on their own side. And you've gotta be very careful about how you, how you address, those sort of issues. The this is one of those things where I I would urge you, and I don't maybe you already have done this, but the law school has a an expert on First Amendment rights who professor, who I don't know. I I have very little to do in the law school, to be honest. But I would suggest that you bring that guy in and have him analyze the bill from top to bottom. I was, one of, one of our appellate, lawyers, teachers at the law school and said, you know, this bill, they're almost thinking about taking it in a civil liberties course and saying, this is your exam question. Point out all the problems from top to bottom, because it is replete with those types of potential issues. The, you know, the

[Speaker 1]: I

[Speaker 4]: guess I can talk about some of the, you know, the particular things that I heard talking about, the criminal threatening statute and the disorder of conduct statute in the areas where we have dealt with threats in the past, one of the things that is important, I think, in this is that you do, to the extent that you can, try to define these terms of of coercion and the like that she suggested. You know, the interesting thing is if you do it or if you don't do it, it doesn't really matter that much. Because, ultimately, whatever you write is going to be looked at in a given case with strict scrutiny by the Supreme Court, hopefully, with the idea of preserving speech. That's the that is the kind of the whole basis of it. Right? It's not about making people comfortable. It's about protecting unpopular discourse. In the political arena, as you might know, having been elected, which I never have been, except president of the Bar Association. I don't know if anybody voted against me. But you know I had to if they've after I was president. Anyway, that was twenty something years ago, and I don't really remember. In any event, I I don't put myself out there like you you people have to when you when you're elected. But, you know, our country has a long history of negativity surrounding elections. And if, you know, you can go back to the seventeen hundreds, and there's some very interesting history around, you know, the Adams and Jefferson election and the like. I've brought in some of the cartoons that were written back then that, you know, they would violate this statute 10 different ways that, you know, given their conduct during that time. Mean, it continued. It doesn't I'm not saying it's good or it's it's morally right or anything like that, but it survived the First Amendment. So I already talked about the, when whenever you're talking about speech and not physical actions or a combination of the two, review is strict scrutiny, kind of sweeping words like intimidation, and interference and disturbance on page two lines ten and eleven, is it seems to be very broad and captures protected speech as well as unprotected speech. It's vulnerable to, an attack on its face because it chills protected speech even though it does carry you know, gets at the intent. This is that throwing the baby out with the bathwater sort of thing where you yeah. You got rid of bathwater, but oops, there goes the baby, you know? And and that's because it it has the potential to stop people from doing things that they have every right to do. It would be as written and valid on its face, in my opinion. The on page two, lines twelve and thirteen, seventeen and eighteen. When you use the words for the purpose of interfering with the right of another person to vote, what does interference mean in that context? Is it subjective and open to a discriminatory application? You know, what does intimidate mean in that in that context? You know, if you have a legitimate demonstration against a particular candidate going on, whatever it is, a 125 feet from a from a voting place, and that is causing concern to people who are going into the voting place, Can that be intimidating? Sure. Is it legal? Absolutely. I had a going back to, like, literally now, like, 1983, And I was in college at the time, and I was working for a candidate up in Chittenden County. And I had an interaction with a person who I didn't know at the time at a voting place. And the the person who, again, I didn't know was kind of pointing me in the face. You get, you know, you get back. You can't you know, you're trying to intimidate people. You're trying to, figure in my face kind of thing. And, you know, I'm a college student with, you know, lots of energy. Mhmm. And some sense, but not enough. I know a lot less now than I did that. And, you know, I'm giving it back. And, ultimately, you know, cops come over, and they're like, you know, get back. And, I didn't realize the person I was arguing with was the secretary of administration for the governor. And the governor's duty detail was asking me to, you know, shut up, basically. And I found out after the fact, you like, you know who that was? I'm like, no. And they you know, I just thought it

[Speaker 1]: was

[Speaker 4]: some person. He's, you know, not letting us do whatever we wanted to do. And so I wrote a letter to the Burlington Tree Trans back when they took letters. I don't know if they do anymore. And they and I just described what had happened, and I said that I thought it was inappropriate for to people for people to abridge speech in that way. And then I noted, of course, particularly with somebody who was part of the governor's administration. I got a letter back that said that I was they weren't going to print it, and it was a they perceived it as a personal attack on the the governor and their staff. And, like, I didn't even know apparently, the governor was there. I didn't even know that. I was just doing my thing. Right? And and so these sort of issues are always ones, like, for me that have you know, I've had some personal experience with it, so to speak. And, you know, one of the things I've always believed in is that the constitution was there to protect things that are unpopular, and that is exactly what the First Amendment's all about. The I guess I'll go down to page three.

[Speaker 1]: And

[Speaker 4]: this is where you start the the civil portion of things. I know what you're doing, the campaign finance and this. This is not the same. This is, again, speech oriented stuff, and the protections are greater. It's a different kind of speech. In in many ways, it's pure speech. And just because you call something civil doesn't eliminate the search and seizure protections that you have under the Vermont and US constitutions. The government is not relieved of its responsibility to get a warrant based upon probable cause just by declaring that something is a civil matter, and particularly when there's the potential for criminal liability, which there is replete throughout this statute. I would note as well that a person cannot be compelled to testify under oath without the right to counsel in a matter that might be incriminating and on the mere basis that the AG and I get yes. If I don't blame the NSAs for wanting to opt out of this. My guess is that anything that is, you know, criminal is gonna maybe be pursued by the AG's office as opposed to the state's attorney's office, although they might work together, on these things. But just calling something civil doesn't allow the state to say, hey. I have a reason to believe that a person has been in violation of this chapter, and then go in and, like, look at all your stuff or compel you to testify. There are very there now there are exemptions. They're very, very discreet on the civil side of these things. Usually, it has to do with stuff that is inherently dangerous, like handling of nuclear materials, toxic waste, weapons of mass destruction, and Yeah. Particular audit requirements that have to do with weapons, you know, weapons of war, that kind of thing, where the government has the right under under these very, you know, kind of discreet, dangerous situations, you know, that involve, like, mass issues where they can go in without a warrant and pursue civil civil remedies. Speech would not be one of those things. Alright? So

[Speaker 0]: So the question can

[Speaker 5]: I just I don't I don't wanna interrupt you too much? I just wanna know I had the sort of same question yesterday around that, and I was wondering how in the 2042 a six on page five, line one and two, the non applicable to criminal investigation carve out for the civil investigations. Does that cure this issue at all, or is it is this, like, kind of meaningless?

[Speaker 4]: Well, that has to do with the notice. As

[Speaker 5]: I This subsection shall not be applicable to any criminal investigation or prosecution drawn under the laws of this or any other state. What page you have? I'm on page five. Oh, alright. I'm sorry. I was

[Speaker 4]: on page four because there's the There is one yeah. The part that said talks about criminal I think yeah. I had a note on that. My my note was, this is more evidence that this is a criminal prosecution in sheep's clothing. What you you'll note that if there's a seizure that is illegal, not based on probable cause, this actually recognizes that there may be a criminal prosecution that is running parallel to it. And just like, you know, it it doesn't it doesn't help you. Yeah. It just it actually kind of illuminates the issue that you have two things going on. This is let's let's dial this, like, way back to something very common. DUI civil suspension and DUI criminal. Right? All of the same rights regarding due process, search and seizure, and all of that apply on the civil side for a civil suspension of your auto license as they do for the for the criminal side and whether you're gonna get a penalty probation or jail. Same thing. Right? Yeah. So you said this is kind of this what I sub six here is what I call the wizard of Oz provision, and I've seen it some number of times, which is pay no mind to the man behind the curtain. He's not doing this. This is totally different. No. This is it's the same thing. And, actually, when you when you go when yeah. There's also a What I think you have here is a doing this bill is doing everything it can to kind of civilly gather information and then ultimately use it on the criminal side if necessary. And you can't, like, unknow something or unsee something. All you can do is suppress it, right, under the Fourth Amendment, or under Vermont's constitution, which actually provides more protection against searches and seizures than the US constitution. So I let me just I could go through my actual notes and read this crap, but I just said what I just, you know, I just kinda told you what it said without pointing to specific lines in the bill. Let me go over point your attention to sub 11 or line 11 on page five of six. It's there's a a portion above which says or or maybe even below that talks about contempt. Just when I get out of when I get out of line. Oh, but look at what let me back you up a little bit. I actually prefer questions usually because then it's easier to just answer them than it is to go through this stuff. But On page four of six, it says such notice shall include a statement that a knowing and intentional violation of this chapter is in it. It's subject to criminal prosecution. So this is where, like, the civil part becomes a criminal thing if you intentionally do it. Like, I don't know anybody who intentionally doesn't or speaks unintentionally about these matters, especially when it's, like, in writing and documents and things like that. It just it just keeps providing more and more evidence that what we have is not, almost not even a parallel thing. We have a civil investigation that's gonna lead to a criminal prosecution potentially. It also in lines nine, ten, and 11 So, you know, anything and but anything we see is can't be used or disclosed unless you're disclosing it to the attorney general, state's attorney, or law enforcement officer engaged in legitimate law enforcement activities, which might be what? The criminal prosecution of the exact same activity. Alright. The and then sub six, which is the carve out, you know, don't pay any attention to the guy behind the curtain. Right? The fine that you that is, talked about here under the civil portion, I just this is kind of a minor point, but I just wonder, is this a civil penalty, or is this a criminal fine? Like, what kind of fine is it? I'm not sure given above that it matters. And then it talks about any disobedience of any order under this section by any entered under the by the court shall be punished by contempt. Alright. Well, we know court. What type of contempt? Is it civil contempt or is it criminal contempt? There's a difference. Is it and the I don't know. A lot of people, even the court, to be honest, many new judges don't really know the law of contempt. They don't understand it because it doesn't come up very often. There's two major types of contempt. Contempt in the presence of the court, like where I call a judge lots of bad names and try to disparage and interfere with the what's going on in the court. And then there's court. Then there is contempt out of the presence of the court, which, number one, requires that there be a valid court order, but, this says shall be punished as contempt of court. You can't say that this shall be punished because there is discretion for and the person who is subject to contempt has these must have the ability to purge themselves from the contempt. So they need to have they have the right to a hearing to show cause why they should not be held in contempt, number one. And then number so they might challenge the validity of the order. They might challenge the, you know, the constitutionally constitutionality of the order to begin with. They might challenge the due process that gave rise to issuing the order. And then you can't this is kind of ordering the prosecutor in the executive branch to bring a charge, which you can't do. There's there has to be discretion. And you kinda skip that whole due process part and just says, shall be punished. So that whole line's got a bunch of issues.

[Speaker 1]: Sure. Yeah. Go ahead. I mean, the

[Speaker 7]: question, you shared that. I just so it seems like this piece needs a lot of, looking at, and maybe there were some pieces that weren't considered or see. The other piece that I remember asking yesterday is that this was adapted from the piece of campaign finance Mhmm. Law. Sounds like maybe there were some adaptations that aren't working out so well. I'm curious your thoughts on the original what's in campaign finance. Like, does that work for you there? Not saying that we're going to duplicate that. I think the chair showed there's gonna be, like, a working group to try to come up with a new version of this. So I'd be curious to hear if you're like, that one is great. So if you stick more with that, like, that's gonna be or you're like, that one actually isn't great either. So

[Speaker 4]: Well, what I'd say is that one is different. That one is, you know, it's apples to oranges. It's very can I tell you a story? I was in DC for totally other re different reason the day that Bill Sorrell went down and argued the campaign finance law at the time before the US Supreme Court. Before I was defender general, had this, like, fifteen year legal career where I did a bunch of things. And one of the things that I had done is represented movie studios around, you know, around the world and, like, sales of things and such. And the Anna Nicole Smith inheritance case had gotten to the US Supreme Court and was being argued the exact same day that Bill Surratt was arguing campaign finance reform. And I was in DC for a different reason, but I and I was a DG at the time. But I'm like, hey. Well, I'm here. Why don't I just go to the Supreme Court and see the Anna Nicole Smith argument? And then I'm like, Serena, what are you doing here? He's like, what are

[Speaker 1]: you doing here? I'm like,

[Speaker 4]: oh, never mind. Because that wasn't you know? And the the US Supreme Court had, like, big questions about that version of campaign finance based on First Amendment issues. Right? And then we came back and reworked it, and I don't know that there was another supreme US Supreme Court challenge of it. Now I'm not I'm not an expert on campaign finance reform. And and to be honest, I and I am in those protections and the like. But you can see oh, I'm gonna say, you can see how even that form of speech is so scrutinized. And this is even a higher level because it is very it's speech without action, and it's in a and it's in a political arena subject to facial challenges and strict scrutiny, like, really hard to fashion something. So, honestly, no matter what you do here, even if you make some of the suggestions that, mister Manus and as I and may you know, if you bring in a First Amendment expert in, even if you follow, like, whatever those suggestions are, you're still gonna be on thin ice because this will be this is one of those things that you know, in the old days, the ACLU used to jump all over. I don't know that they do it as much anymore. They've kind of changed their focus to some degree. But this is this is the kind of thing it's just really hard because you can't legislate around the First Amendment. You know? And then when it comes to searches, seizures, statements, you know, compelling statements under oath, that kind of thing, you can't legislate around the fourth, fifth, sixth, fourteenth amendments of the US constitution and and our analogs in the Vermont constitution. So everything you do here is going is, you know, from a from an academic sort of intellectual legal standpoint, this stuff is fascinating. This is this is great, but there's a lot at stake. You know? And we there's no better time, like, to be looking into this kind of thing than what we're seeing around around the country right now about, like, what kind of speech is okay, what kind of action is okay.

[Speaker 1]: And,

[Speaker 4]: you know, it really does cut both ways. From a you know, from an academic standpoint, it it you know, it's it's like you're in the lab. Right? Unfortunately, there's a lot at stake in the lab right now. And try to I know you try to get it right. This is just a hard place to get it right. So just so the the needle that I see that we were are trying to thread, and maybe we can't, is couple

[Speaker 1]: things. It is it's really tied with interfering with the right to vote. And and it's intimidation, threat, and of course. Does that change the possible standard for true threat? Is is it I understand that when we're talking about politics and political realm, the freedom of speech is protected as anywhere. But this is actually interfering with another right, which is the right to vote. Maybe it doesn't change, but the other thing and the part of the reason why we're going through this exercise is that it's good enough for the feds because this modeled after '18 USC section five ninety four, then why don't we take a look and dive into it? We may in the end decide that, yeah, that it's not gonna work. And we will bring in Rodney Small as an expert in First Amendment law. But that's kind of why That's

[Speaker 4]: the name I was not remembering. Because I don't have anything to do with him. But he's the guy.

[Speaker 1]: And maybe it doesn't make enough of a difference. Maybe And you can write it.

[Speaker 4]: The And what you don't wanna do is write it so it's facially invalid. Right. And then on a then on a case by case basis, you're going to define what those terms mean as long as you don't, on its face, go after speech alone. You know? And that's where, like, the academics in this area are going to be better. And I can honestly, if I just had a little bit more time I I spent obviously, you can tell I spent some time on this. But if I had a little bit more time, I could I could give you the list of cases. I could give you the definitions that are in our in the Vermont case law where, you know, you have differences between, you know, what kinds of threats are true threats and not threats. And I could I could go through all of that stuff just like we did in, was it, the 2022 when you changed the the criminal threatening statute to add activity. I also wonder why you don't just stick it there. But, you know, it might just but but this might make some sense. From a you know, from prosecution and defense standpoint, like, when we're looking at crimes, I know we do have these things scattered throughout other titles in in Vermont law, but this one seems to be fit right in there. Not that this, you know, fit kinda fits here too, but that isn't where I'd I'd look if I were trying to Figure. Figure it out. But, you know, when when push comes to shove and these things end up getting challenged or defended, I think somebody will find it. You know? So it's not it's not that big a deal. It's just, you know, crimes are usually entitled 13. That's all.

[Speaker 1]: Yeah. And part part of the just on that. And and you're right. It could be entitled 13. Maybe that's where if we proceed with this, we we put it. But but it also is changing. Our jumping off point was titled 17 in some current law related to intimidation and such. Yeah. Could be be replaced, but

[Speaker 4]: we'll figure that one out too. Yeah. You know, that's relative to the big issues. That's not the big issue at all. So, you know, there's probably a sweet spot, and the sweet spot may not be what you don't wanna do is freeze that political speech. You don't wanna put people who have something legitimate that they can do and say, having that deterred by the statute. And that's that's where your that's where your problem is right there on the on the criminal side. You know, the the civil portion of it has a lot of issues.

[Speaker 1]: Yeah. And and that that kinda got added towards the end, frankly. And and I think that, yeah, we've already heard a lot

[Speaker 4]: about that particular component. Know, overall, you know, honestly, I this is not going unless something really goes crazy, and I really hope it doesn't, but we're not gonna see we probably won't see five of these cases in ten years. And so it's not gonna have a big impact. It's just, you know, when it does, it's going to it has big implications for kind of the pillars of of what we stand for. Yeah.

[Speaker 1]: But we have to get that right.

[Speaker 4]: So that's what I have. Any other questions for for for Matt? So

[Speaker 1]: we have I've I've been explaining to people we have a long runway. We'll just get And it keeps stretching longer, and we'll see if we can get this plane off the tarmac. Come on. It's it's always a good metaphor. So I appreciate I appreciate the input on that. And also, I I know that you were saying that you're gonna provide some written testimony on the animal cruelty bill. You may want to if you haven't put a bunch of time into that yet, that's going to have a major revision of that bill. I think given the testimony we've had this week. Yeah,

[Speaker 4]: it's it's basically basically done. But

[Speaker 1]: Yeah. I mean, I think You know, it hit the same issues that we've been trying to

[Speaker 4]: Yeah. Some of it. And, you know, some of it is kind of the policy side of it and the kind of impact on both prosecution and defense with these animal cruelty bills. Yeah. Great. If you don't mind, let me just say

[Speaker 1]: Go ahead.

[Speaker 4]: Something very brief about it without going into the details of the bill. The animal cruelty prosecutions, in particular forfeitures and and the care type proceedings that go on right now are a baiting for existence.

[Speaker 7]: The what? A baiting for existence? A fully existed.

[Speaker 4]: The public lawyers, the prosecution, the defense, the court, the people who come in ninety nine percent of the time have mental illness issues even though they're not incompetent. They are indigent. They are transient. They and they will fight every single one of them every step of the way until their dying breath. And so forfeiture of animals, care proceedings, those kinds of things are akin to back when they used to do it. But they, you know, seized cars for DUIs, that kind of thing. And we'd spend $50,000 in legal resources to get a $2,000 beater, we are, you know, we are spending more than that on these cases for the forfeiture of an animal. And, you know, I like animals fine, and I've had animals. My kids like them too, but my kids are older. So, anyway, it is a massive drain. Is it a massive drain unlike the resources of public defenders and prosecutors? Unbelievable. And if and in my career, I've you know, when I was representing people in court on a regular basis, I could represent somebody charged with murder. I could represent people who had, you know, molested multiple children. Nobody blinks. I represented some dog that got abandoned that had its butt frozen in a snowbank because the people got evicted, and they couldn't take the dog with them. Now the dog got unfod from the snowbank and ended up recovering, which is nice. But I got more like talk about threats and death threats and all that kind of thing. I got more of that kind of thing regarding animal cruelty cases than I ever got representing any person charged with murder, charged with sexual assault, you name it. It didn't matter. And it it it's a so hot button, but it takes you know, I was hired privately by the fan the parents of the woman who was involved with this, you know, eviction from a mobile home kind of thing. It was unbelievable. I'd never seen anything like it. And we we spent a lot of resources on that. I do not relish the chance to be doing and having our people do forfeiture and cost of care, you know, proceedings that run parallel and with no contact time wise with the criminal case that's going on. That's just a general comment on it because it is a it's it's really it's it's remarkable in a way I can't even explain to you when these cases come in. And every single one of them gets appealed to the Supreme Court. Every one of them. It's I'm just telling. So, you know, that's just a general that's from, like, a a defender general administering a system and seeing what prosecutors have to do and what defenders have to do. These cases are a resource and, you know, nightmare. So but that you know, if I'm with

[Speaker 1]: It's complicated in here as well as we are dealing with that bill.

[Speaker 4]: So You know, there there was other stuff in there too that, you know, I really didn't wanna

[Speaker 1]: Well, some of that stuff may may change over the

[Speaker 4]: Yeah. So I'm gonna I'm just if it's gonna change, I'm glad that I didn't you know? Do you really so, basically, what you're telling me is just hold off. We will get the next drafts

[Speaker 1]: and get something. Yeah.

[Speaker 5]: And and it'll be different enough,

[Speaker 1]: I think.

[Speaker 5]: But I'm just

[Speaker 4]: every now and then, I'm smarter than I look by not coming in with version one. You

[Speaker 1]: know, sometimes yeah. I was good on this one, though. This one your comments on version one was are very helpful, so

[Speaker 4]: I really appreciate it. Well, thank you. And, I was happy to be here, to be honest.

[Speaker 1]: Excellent. Thank you for your time, Pat. Really appreciate it. And I know that we have one of your people in this afternoon testifying on H5. So Kate Lamson is going to be, I guess, Zooming in probably, I assume.

[Speaker 4]: Yeah, she will be. Only Dixie has danced every day from Bennington. And you might still be. It's not quite sure. But I love that guy. But boy, was he persistent. In any event, yeah, I think you'll enjoy Kate. She was a prosecutor for a number of years and then became a defender. And so she's seen both sides of this. Great.

[Speaker 1]: And we'll look forward to

[Speaker 4]: To give you a unique perspective.

[Speaker 1]: Definitely need that, and I appreciate that. All right. Thank you very much, Matt. And

[Speaker 4]: Thank you.

[Speaker 1]: Thank you. I believe Alison Despathy will be on her way momentarily. We can go off live just but if people can stick around,

[Speaker 3]: think

[Speaker 1]: she's on her way.