Vermont Legislature SmartTranscripts:

[Speaker 0]: Committee this Thursday morning, January 29, and we're back to H five seventy eight of the Animal Community Bill, and we have draft number 1.1 to take

[Eric Fitzpatrick (Office of Legislative Counsel)]: a look at. And over to you, Legislative Council. Eric, thank you for being here, and thank you Hillary for backing him up. Thank you very much to everybody. Nice to see everyone this morning. Eric Fitzpatrick with the Office of Legislative Council. As the chair said, here to walk the committee through a proposed strike all amendment to age five seventy eight, and activating penalties and procedures for animal cruelty offenses. So this is a strike all, amendment. And if you seen a hard copy of it, you can see it's pretty lengthy. There's a lot to it. There's a lot of new language. There's some language that struck. I, as have done in the past, have used yellow highlighting to indicate where the changes are between this draft and previous one. I will refer to some of the unchanged, unhighlighted language a little bit as I'm going through it because it's sort of helpful to understand what it was to understand what the proposal is in the amendment. But for the most part, I probably won't be spending as much time with the unchanged piece of the unhighlighted language. But if for some reason, there's something there that you wanted to ask me about, feel free to jump in, slow me down, go back to one of those unhighlighted parts, and we can talk about that too. But that's kind of the general way I'll approach the walk through. And also to reverse the committee's recollection about the big picture here. Remember, there were, as is often the case, three major points that were involved in the original bill as introduced, age five seventy eight, animal cruelty. Because it has to do with the crime of animal cruelty, right? You have two different potential offenses, a misdemeanor animal cruelty offense, a felony animal cruelty offense. Misdemeanor is generally a one year max, two year for a second offense. Felony is five year felony if it's aggravated. That's what we have on the books right now. The three sort of main changes that went on with h five seventy eight as introduced, and it's a lot of things, but these are kind of the big picture three things. It expanded the definition of sexual conduct with an animal for purposes of the crime of animal cruelty. So as it is, the sexual conduct piece has some elements. It expands it in a number of different ways. It adds some additional types of conduct. It makes it a felony when it's done in the presence of a minor, that sort of thing. So that's one of the three. That one is the one that has the least amount of changes in the amendment. So there's some little things you'll see. There's some tweaks and a couple of things added here and there. But for the most part, that's gonna be the one that we go through the most quick. But that's number one. Number two, as you may recall that in addition to the criminal sanctions, the misdemeanor felony stuff that a court may impose when someone gets convicted of one of these animal cruelty offenses, there's also a list of other types of sanctions that aren't criminal in nature, but it could be, for example, the person's prohibited from possessing the animal that was subject to the cruelty or any other animal that the person owns or possesses or has control over. Or an additional one can be that the court can say, we can't possess any other animals in the future for a certain period of time. I think it's a five year five year minimum. And there's a number of those other sanctions. But the key point to remember here is those sanctions are discretionary for the court. Right? The language says, may. In other words, the court could choose to impose some of those other sanctions, but it might choose not to. And that's the existing law. That's not being met. That's the existing law. Remember then one of the major changes of h five of the of the bill as introduced that we went through was it made that may a shot. So those additional sanctions are would no longer be permissive or discretionary. They would be mandatory. The court would be required to impose this. That was h five seventy eight as introduced. The amendment you're looking at now kinda takes a middle ground. So it keeps some of those sanctions will continue to be discretionary as is the case under current law. But some of the others will become mandatory. That's proposal. And those primarily involve possession of the animal. Not or or possession of any animal because we have two different two different provisions that the court can impose there. And whether or not it is permissive or discretionary or mandatory is generally going to turn on whether that offense was a first offense or whether it was a second or subsequent, and whether or not that offense was a misdemeanor or whether it was a felony. There's gonna be some detail in there that we'll go through when we look at the language. But that, I think, into big picture, would be helpful to just keep in mind. Yeah. That's what's going on with that. That's the structure it tries to set up, that sometimes those those sanctions will be discretionary. Sometimes they'll be mandatory. Generally, we'll turn on whether or not the offense was first time or not and whether or not it was a misdemeanor or theft. Alright. So that's topic number two. Top number three. Now, you may recall, too, that when there is a probable cause to believe that an animal is subject to cruelty, the animal can be seized by an animal control officer. That's generally a law enforcement officer or a sorry, it's a humane officer. And the humane officer is ordinarily a law enforcement officer or a municipal animal control officer. So they can seize it either with or without a warrant. If they get a warrant, they tell the judge they have probable cause to believe the animal is being abused. Or if it's an emergency situation and they think there's a life threatening condition for the animal, they can seize without a warrant. In either case, it might be that criminal charges will be brought against the person, right, under the misdemeanor felony statutes that I just mentioned. Or it might be that the animal could be subject to a civil forfeiture proceeding. Not necessarily true that they would file a crime. They might, they might not. But you could also the state and the officer could file a petition for forfeiture of the animal, civil. We have a lower standard of proof. You have a different it's not subject to the beyond a reasonable doubt. There's differences between civil and criminal. But either way, you think about it. Either way, if the animal gets seized and if one of those two court proceedings is gonna happen, then somebody's gonna be providing care for that animal in the meat. Right? In between that moment that it's seized and however long it takes to get that court proceeding resolved, somebody is incurring expenses to feed, to provide care. Many times in these cases, there'll be veterinary care that's necessary. So all that stuff that accumulates over that period of time, somebody is paid. So that's this third issue that is sometimes called cost of care. You sort of describe it generally. As introduced, remember H578's approach to deal with that was to create this separate cost of care action, this civil action, so that the organization that has custody the animal or the state can file a separate civil action against the owner and, get payment from them, get the court to order payment from them of the cost of care. Totally separate action. This, amendment that you're looking at doesn't touch that. Leaves that alone. You may decide you wanna keep it or not depending on what you think of the alternative approach that the amendment takes. And the the the approach that the amendment takes is instead of, getting into that separate action, instead amend and attempt to expedite and move forward more quickly the existing civil forfeiture provision. So instead of creating a new action, it attempts to get at the same issue, which is these accumulating costs. And you think about it. If you can expedite that civil forfeiture proceeding, make it go quickly, more quickly, then the amount of cost is not gonna be as much. Right? Because it won't be the animal won't have to be cared for for as long. So there's that piece of it. In addition to that, it also includes a requirement that the owner pay security if they're gonna have a hearing and contest the forfeiture. So you see, that's to address the cost issue in a different way. You have one way, if you can tighten up the hearing, then there will be a smaller amount of cost in the first place. Second way as well, there's always going to be some cost. Is there some way you can put in a procedure or some mechanism that allows those costs to be compensated more directly, more easily, really, without requiring the separate court process, like the cost of care action. The way it does that is it requires payment of a bond. So somebody gets their animal forfeited, and the way that you sort of think for a second how that's gonna work, they can request a hearing, which is certainly constitutionally required if you have your property seized by the government. But they also are required to pay a bond. And you'll see when we get into it that this bond payment is by rule. The new division of animal welfare that you created last year creates rules to say how much this payment gonna be, how's the payment schedule gonna work, all that sort of stuff. That's the mechanics of it. We can get into that later. But that's the big picture. So that's the approach that the amendment takes, streamline to the extent possible within constitutional limitations, the forfeiture process, and provide for payment of a bond to try and compensate for cost of care expenses. That's sort of bucket number three, sexual conduct, the mandatory versus discretionary sanctions, and how to recoup the costs here at the end. So that's the big picture. I can pause there for a moment, or we can jump right in and start looking at the language, whichever the committee prefer. Let's jump in. Sounds good. Thank you, Chitt. So let's look first then at topic number one, which is the definition of sexual conduct. You'll see that right there on page one of the amendment. You'll see no highlighting here, so there's no changes on this particular page. But one thing to note here is that in this on page one, you'll see lines 15 and line 18. When when conduct is prohibited because it's defined as sexual conduct, there's an introductory clause without a bonafide veterinary or animal husbandry purpose. So in other words, sometimes some of this conduct might actually be for a legitimate veterinary reason. For example, like an artificial insemination situation or something like that, that is gonna involve some touching of the animal sexual work. Right? And you're not attempting to criminalize that here, or neither was the existing statute. But this is really primarily a technical change. When when you when the bill is introduced, expanded the definition of sexual conduct to include over on page two, Look at the unhighlighted con language for a second. Any intentional transfer or transmission of semen by a person upon any part of an animal, neglected to include without a bona fide veterinary or animal husbandry purpose. That's just repeating language that already exists in other places. I think that's really was an oversight that that language wasn't there in the first place. So that's the only change there. Alright. So another thing that that the bill has introduced, you may recall, was expanded its definition of and I'm over on page four now. Expanded this definition of sexual conduct with an animal in another way, which is to include visual images, to include the possession, film, or distribution of visual images of sexual conduct with an animal. Essentially, it's talking about pornography involving an animal, essentially. And so that was added. No change to that. That's line 14, page four page four. I'm sorry. No. Line 15, page four. But it does add so the proposal in the amendment is to add another instance that would also count as animal cruelty. And you see that's number 12, age four. And this conduct that would be prohibited would be constituting animal cruelty. He's possessing an animal while the person is prohibited from possessing an animal by a court order issued under the statute. So remember, as I was saying in the beginning, one of the sanctions that a court can impose for animal cruelty is an order that the person not possess an animal or either the animal or any other animal that was living with the person or any other animal for a certain period in the future. If the person goes ahead and possess it with any, then they're violating that court order, which probably could be prosecutors' contempt as well. But this specifically adds provision that if the person does that, that also constitutes animal protein.

[Speaker 0]: Do you want questions now or just by by section. So, yeah, we'll go ahead.

[Rep. Barbara Rachelson (Member)]: I want you, but go. Thoughts

[Rep. Thomas Oliver (Member)]: on just expanding it to possessing an animal when prohibited from possessing an animal by a court order and just cutting out the pursuant to subsection three fifty three. So it would just be any court order that prohibited animal possession. So if you had a condition of release or a probation condition in a criminal case, and then you possess an animal that they could bring in an

[Eric Fitzpatrick (Office of Legislative Counsel)]: to Anti some kind of stalking order, RFA. Because people could have that in it.

[Speaker 0]: Yep.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah. I think that that that also would work. Yep.

[Speaker 0]: Yeah. No. That makes sense. Okay.

[Rep. Barbara Rachelson (Member)]: So I'm wondering about possess. If somebody has their friend's dog visiting them, they don't possess the dog, but they may be with the dog. And maybe they're even watching the dog, they don't possess the dog?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Right. And so are you thinking that they want to is the idea that you would want to make sure that that conduct was prohibited? In other words, they couldn't do that as well, or what what

[Rep. Angela Arsenault (Member)]: Right. I mean

[Eric Fitzpatrick (Office of Legislative Counsel)]: hoping to go.

[Rep. Barbara Rachelson (Member)]: I just would hate first for it to be somebody saying, oh, no. It's not my dog. It's my daughter's dog. She's in Florida, and I'm watching it for a week.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah. And in fact, I think another way and I I probably I should have done this in the first place, so thank you. That's a good catch. If you look because the way it's phrased now, and I know as representative now said, we're gonna probably strike that reference to specific, court order issued under three fifty five three But it could just track that language, which you can order someone not to own any animal owned, possessed, or in the custody of the defendant. So if we just track that language. Possessed

[Speaker 0]: or cared for.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Well, right now, it could do that. It's in I'm looking at B1 and A under the amendment, page eight, line 13.

[Speaker 0]: Line 13.

[Eric Fitzpatrick (Office of Legislative Counsel)]: So the court can order any animal owned, possessed, or in the custody of the defendant. But I don't think there's care for Oh, yeah, it's also for the future, right, you're right. It's care for over page nine, line seven. So in the future, it uses the care force.

[Rep. Barbara Rachelson (Member)]: Right. Because somebody could be flopster and be like, oh, I don't I I could I should just think the Yeah.

[Speaker 0]: No. That should expand. I mean, it's supposed to be picking up what we're prohibiting Right. And that's not dispossessed. Right, right.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yep. Thanks, Kash. Thank you. So

[Speaker 0]: while we're at it, I'm just going to flag an issue that would be like legislative council to look into a little bit further. And that's with respect on page four, line fifteen, sixteen. In reading State v. Van Buren for the lawyerism case. It references a case, Stevens, where the court emphatically refused to add depictions of animal cruelty to the list of categories of unprotected speech. So there may be a First Amendment problem with respect to that line fifteen, sixteen. At least I just want you to look into that.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Will do. Just to flag that for me to make sure. Do you have a site on Stavie Bendere?

[Speaker 0]: I mean, I'll find the I have the case.

[Rep. Barbara Rachelson (Member)]: I have the I have

[Speaker 0]: I can go over it.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Okay, great. Thank you very much. Sounds good. So we'll look at that issue. The first amendment issue with respect to g, have some new language that we just talked about for Subdivision 12. Gonna move on unless there's anything else here. Alright. So remember, I mentioned that one of the ways in which the bill has introduced expanded the definition of sexual conduct with an animal was it also provided that if a minor was involved, either participating or observing, then it tracked, it repeated all that same sexual conduct language. If for purposes of participation or observing by a minor, it became a felony. So it's a five year felony in that case. And that you see over on page five, line seven through 20. So that all that language gets repeated, the same language that you already have for purposes of a misdemeanor not involving them. However, again, I think just a matter of oversight, as we were just talking about, or will probably come under the same person amendment analysis that Chair LaLonde just mentioned, the addition of visual images in the misdemeanor section was not repeated in the felony section when a minor is involved. I can see that. So if you look at page six, lines four and five, it's just the same language from the misdemeanor, except adding in the presence of a minor or in which the minor participates and makes a felony, the same way you did with all the other sexual conduct offenses. Again, primarily technical with the exception of the First Amendment approach. More than technical. I agree. Yes.

[Speaker 0]: Yeah. That one might not be as much of

[Eric Fitzpatrick (Office of Legislative Counsel)]: a problem.

[Speaker 0]: You got the minor in there. Yeah. That's right. Exactly.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Alright. So that is actually the end of the first bucket, the the definition of sexual conduct bucket. So I'm gonna move on to the second one, which is the additional sanctions that the court has the discretion to impose or at least has the discretion under current law. And under the bill, remember, it became mandatory. Court shall impose a judicial census. And as I mentioned, the proposed amendment takes kind of a middle ground, some mandatory, some discretionary, depending on whether it's a first or second offense and whether or not the it was aggravated or misdemeanor. So a couple of instances where you can see this distinction starts on page eight. So you'll see this is in existing law, page nine. Sorry. Line nine, page eight. You see, in addition to any other sentence, the court may. See that that may in line nine? This is important because this is this what flows under that subdivision, under b one, is gonna be the list of discretionary sanctions. The court may, just for a second, turn over to page 10, line 12. Now if you look at that line, it says, in addition to any other sentence, the court may impose, the court shall. Everybody see that? This and that set that whole subdivision is new because what we're doing is bifurcating these sanctions into some permissive ones and some mandatory ones. And we're doing that in these two different subject. I'm just sort of outlining up front so you could say, okay. Here's the may, and the shall's gonna be over there. Wait. What line is that? The second one?

[Speaker 0]: Yeah. The second one on page 10.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Page 10, line 12. You'll see the shall was the very last word of that line. The court shall.

[Speaker 0]: Took me a long time to find it, but there it is.

[Eric Fitzpatrick (Office of Legislative Counsel)]: That's alright. There's a lot of a lot of language here. Thank you. Yep. Okay. So turn back to page eight, though. So alright. So which ones are the discretionary? So where did which which is the may cover? Alright. First of all, now we're talking about possession of the animal that was subject to the cruelty or any other animal that might be living with the person. The person owns their control. So that's what we're talking. That's this first category here. So for that situation, you'll see line 12 for our first violation. Alright? So we're talking about first violations here, and that is in part that is one of the main reasons that this language is here under the May. Right? It's a may because it's a first violation. So if it's a first violation of one of those animal cruelty offenses, what can the court do? They can order any rights to the animal subject to cruelty in any other animal. And you'll see that except livestock or poultry exception is preserved. It just moved to the next sentence because I thought that it reads poorly. It's difficult to understand what that means. Any other owned possessed, and it adds on line 14. You'll see not just can the court order the person not to possess the animal subject to cruelty or any other animal, line 14, own, possessed, and then you've added residing or domiciled. So that was an addition to make clear that any animal that is either domiciled or residing with the person can also be ordered. Now probably that would likely come under the second language in the custody of. There's probably some crossover there, but just to be sure, the language is added.

[Rep. Barbara Rachelson (Member)]: So in the case of a person who was watching their sister's dog, is that

[Eric Fitzpatrick (Office of Legislative Counsel)]: Temporarily, you mean? Say they're watching Or maybe even for the day while the sister's at work?

[Rep. Barbara Rachelson (Member)]: The day the sister is homeless and whatever. Would that animal either be subject to this or returned to their owner so that they're not forfeited?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Well, the animal isn't forfeited. It's the person or if it's their right to So I would say that that would come under in the custody of the existing language that that animal is in that person's custody for that period of time. And I would say, yes. The court if the court now remember, this is discretionary. But if the court did order, hey. You can't possess you can't have any other animals in your custody while this is going on. I would say that counts as custody. You

[Speaker 0]: wouldn't want the other person's dog to be abused. Right. Yep. Sure.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Now as I mentioned, this order that the person can't possess any other animal, other than the animal that's who was being abused. As an exception, line 13, except livestock or poultry. I think probably the idea is there, for example, someone who's a farmer may have abused a dog, but I think that their intent probably of that exception, I wasn't here when I was put in there, but sort of thinking about what it might intend is that that doesn't necessarily mean that the court could order the farmer to not possess any cows, for example, if they're running a farm. So so with that but but that was unclear the way it was written as to whether the how that clause applied. So rather than keep it there, just put it out into a separate sentence and say, livestock or poultry shall not be subject forfeiture under this subdivision a. So, generally, they are accepted unless or an exception to the exception, unless the person was convicted of abusing livestock or poultry. So if that's the type of animal that the person abused, well, they get banned in court by order and not to possess any animals. Then it's not a first time violation. No. It's still a first time violation. This this is only for a a first violation. You can see the language does come in subsequently for a second or subsequent.

[Speaker 0]: But this is the conviction for the first. Yes, the

[Rep. Barbara Rachelson (Member)]: first conviction. Right, okay. But if they are doing that, abusing their livestock because they have a prior conviction, wouldn't that part?

[Eric Fitzpatrick (Office of Legislative Counsel)]: It's not a prior conviction, the conviction. If you look up at line 10, these are requirements that go along, follow the conviction. You're right though, if they had another one, and you're not gonna be under this, you're gonna come under the mandatory one on the next page.

[Rep. Barbara Rachelson (Member)]: Like a game board, skip to the next. So jump into that.

[Eric Fitzpatrick (Office of Legislative Counsel)]: So skipping to the next spot on the board. And so go over to page nine. Now we're talking about the future right. Right? That was all the animal that's in your possession now or that you own or that's under your custody at the moment. This one says, alright. For this talks about see line four, page nine, any future right to own, possess, or care for any man or animal. And the court also has the authority under this list of sanctions to order the person not possess any animals in the future or for a period of not less than five years. That's line five. That's the existing law. That's what the court has the authority now. So again, we're bifurcating this out a little bit, but you see what happens here. This is for a first violation. Line three for a first violation, then how does it work for the court's authority? Well, what the court can do is and it it depends on whether it's misdemeanor or felony, cruelty. For misdemeanor cruelty, which is lines three to five, or can order the person not to possess for a period of up to five years. You see line five. So that's where it's gonna be. Going forward, it's a misdemeanor conviction. You can say up to five years. Can't be more than five, and it doesn't even have to be five. Doesn't have to be at all, really, because it's discretion. But let's say it's a felony. Then you go to line six and eight for a first violation of three fifty two a. That's the felony. Then they can order for that the defendant not have an animal for any period of up to ten years. So there's a longer possible maximum for them if it's a felony conviction. And lastly, you see lines nine to 11. That's just a repeat of the language you just saw. This is the the livestock or poultry exception and the exception to the livestock or poultry exception.

[Speaker 0]: Go ahead and answer that.

[Rep. Angela Arsenault (Member)]: I have a picky language question. Does it need to say future right to own when you're talking about a period up to five years? It's just a right zone, right?

[Eric Fitzpatrick (Office of Legislative Counsel)]: I think you're probably right, technically. I would be a little hesitant because of the court's general rule when interpreting a statute saying, we presume the legislature had an intent in doing something. So you strike the word future.

[Rep. Angela Arsenault (Member)]: Double up on the intent by keeping future.

[Eric Fitzpatrick (Office of Legislative Counsel)]: In other words, future is existing law. You strike it here. Sort of be unpredictable what the court might say. But that has been the language for many years. Too bad I wasn't here when it

[Speaker 0]: comes mind.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I bet so. We can make it retroactive, maybe.

[Rep. Angela Arsenault (Member)]: It's redundant.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah. It's true. Fair Fair enough. Right. Alright. So now we're moving over to so we've gone through the first offenses. Oh, sorry. Before we get to the second offenses, we're over on page 10 now. We're at this remember, so now we're still in this list of other sanctions the court may impose for animal cruelty. The the amendment also proposes to add one. In addition to this thing that we're talking about now about the the amount of time they they can be prohibited from owning, whether it's a felony, misdemeanor, etcetera, it also adds one more category, page 10 lines five to 11. So the court could also order that there should be prohibited from working in any capacity that requires the person to be in contact with an animal. And then there's some examples. It's including, but not limited to, but it gives some illustrative examples at a commercial boarding or training establishment, shelter, animal control facility, pet shop, grooming facility, etcetera, etcetera, or any nonprofit organization or incorporated for the purpose of providing for promoting the welfare, protection, and human treatment advantage. Another thing the court could order, again, it's not required, discretionary, court could order that the person be prohibited from engaging in that kind of work. That's the proposal. Barbara's book.

[Rep. Barbara Rachelson (Member)]: Could somebody work at a for profit organization that is promoting the welfare of animals?

[Eric Fitzpatrick (Office of Legislative Counsel)]: I think the the idea is that some of those are pet shop Right. Commercial breeding service. I think those But there

[Rep. Barbara Rachelson (Member)]: profit might be a that There might be a nonprofit that has a for profit.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I would say that you could list that if you wanted. Totally up to you. But I also would say that these are only illustrative examples. So if you look at lines five through six, it's prohibited from working in any capacity that requires the person to be in contact with an animal. So I think that would be included, but that doesn't mean you couldn't add that, if you want it, to the list of examples.

[Rep. Barbara Rachelson (Member)]: And there are all these services like Rover, I think, that are you're sort of an Uber walker for a dog, and so I don't know if it's also If we need to talk about dog walking because you're a self contractor, and if those companies aren't asking, have you been And I don't know if they are, but would they need to say, Have you been convicted of animal cruelty? Because if somebody's walking your dog, seems like they have incredible access and maybe not the typical they feel like they're not as regulated.

[Speaker 0]: So it's the working in any capacity that really covers a lot. Are you suggesting that there are certain companies that haven't checked the background? Don't know if any of these companies necessarily checked the background. Hopefully, they do. But I

[Eric Fitzpatrick (Office of Legislative Counsel)]: don't think we Humane society, I think.

[Rep. Barbara Rachelson (Member)]: Humane society. But I don't know if we need to include for profit or as an independent contractor, can't work with Because somebody might be like, Oh, I didn't know I couldn't be an independent contractor and walk dogs. Those people also are like dogs. You can hire them if you want vacation. So somebody having your pets to themselves for two weeks would be

[Steve Brown (State’s Attorney, Windham County)]: like- If you wanted to

[Eric Fitzpatrick (Office of Legislative Counsel)]: be clear on that point, on line five, you could say, Be prohibited from working in any capacity, comma, including as an independent contractor, comma, and then go on to the rest, you want to just be 100% sure that that group was covered.

[Rep. Thomas Oliver (Member)]: I'm just wondering, do we want a violation of subsection F to also be a new animal policy charge.

[Speaker 0]: Oh, you mean to add to the So I think right now Or add to the possessors on page four, line 17, add work list. Work list. That satisfy that? Therefore, all the lists. All the lists. Cares for, resides with, all those.

[Eric Fitzpatrick (Office of Legislative Counsel)]: And that way, yeah, that covers it.

[Speaker 0]: If you're prohibited from all those things under court order, then violate the law. And we'll accept it. Should I

[Eric Fitzpatrick (Office of Legislative Counsel)]: put that and all the others? And all the others.

[Speaker 0]: Leave your legislative drafting standards. That's to say that.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Think that makes sense. Alrighty. So we're moving on now to the to the second or subsequent offenses, animal cruelty offenses in the court. In this situation, remember, I mentioned this before. Let's look at it again. Page 10, line 12. For second or subsequent offenses, these other sanctions become mandatory. Right? See the shall, last word in line 12? Alright. So, again, we're in the same group of offenses. The first one is the also on page 10, this is the forfeiting any of their rights to the animal that is subject to the cruelty or any other animals that live with the person. Second or subsequent violations, again, you have the livestock exception, lines eighteen and twenty. So again, the difference here is that the court doesn't decide whether or not you forfeit your rights, it's shot. So second or subsequent offense, that the animal is forfeited, sorry, not the animal is forfeited. Your right to own the animal is forfeited, as is your right to care for, have animals, etcetera. Alright. So what about the future property rights? That's over page 11. Again, second or subsequent violation is broken out into the misdemeanor or felony. Lines one through three is the the misdemeanor. So if it's a second or subsequent violation of the misdemeanor animal cruelty statute, you are prohibited from owning an animal in the future or any right to own, possess, or care for for a period of not less than five years. That's line three. So that's different. That's not up to five years. That's a five year minimum for purposes of a prior conviction. Again, lines four through six. What about a second or subsequent violation of the felony, aggravated cruelty statute? In that case, you're you're forfeiting right to own an animal in the future for a period of, again, line six, not less than ten years. So you got a ten year minimum if it's your second felony violation or subsequent. And again, the livestock or poultry exemption language is repeated on seven through nine.

[Speaker 0]: So back on page 10, subdivision F, I think subdivision F should be tied to those periods of time that we have, you know, the May 1 violation that, you know, there's a time limit to that prohibition on working with animals. So it's the same five, ten year and also the same with the second or subsequent. I think the working with is kind of with the care for residing with maybe, once again, lead this to drafting conventions, maybe it just says working with, and then we separately define in the definition section what we mean by working in the capacity.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yep, that could That

[Speaker 0]: might be easier

[Eric Fitzpatrick (Office of Legislative Counsel)]: to go. Right.

[Speaker 0]: But do people agree? I mean, I think that was the intent, was that you're not allowed to possess what's expanded to any kind of contact with animals for that period of time.

[Rep. Barbara Rachelson (Member)]: And we're not expunging it. So if somebody is applying somewhere, probably some organizations might say, have you ever been convicted of? And so they may set their own thing, but that doesn't That's fine. The court isn't making it. So if you wanted, after your five years is up, you wanted a job at the remains society or to volunteer there, you might still have to fill out an application that asks you, have you ever been convicted of? Oh, In which you would say yes, and they are allowed to say, we don't allow people who have ever been convicted. Nothing precludes that.

[Speaker 0]: Right, right, right. I see what you mean. Okay. Yeah, Angela.

[Rep. Angela Arsenault (Member)]: Thank you. I am wondering if on page 10, lines sixteen and seventeen, to mirror the the language on page eight for the first violation, we should strike except livestock or poultry

[Speaker 0]: Well, right. Sixteen, seventeen.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Oh, yes. Nice catch. Thank you. That should should be struck.

[Rep. Kenneth Goslant (Clerk)]: Alright.

[Speaker 0]: Alright.

[Eric Fitzpatrick (Office of Legislative Counsel)]: We're now moving on to a separate process that's supposed to hear the lines. I should say separate. Separate, but it's very much related. Page 11 through 13. This creates accentuating. I think represent Burditt might have been the one who one of the people who was asking about this. This is adding a process for a person. So as we're just talking about how a person can be prohibited by court order or from possessing an animal, either presently or for a period of time in the future. Right? So court can order that. This creates a process. So if the court does order that, a person can petition the court for an order asking that they essentially be relieved of that prohibition on possessing an animal. They could do that at some point in the future. If they choose to say they're under that ten year or actually, I think that was a minimum. Say they're under some period of time that the court ordered they can't possess an animal, the person can file this petition in court and ask for a judicial review of whether or not they ought to be allowed to possess an animal at that point in time. So I should tell you, just so you know, this language and the concept is based on something that's already in statute with respect to firearms. So you have the petition that can be filed if someone is prohibited from possessing firearms, in particular, because of their interaction with the mental health care system. If they've been involuntary subject to mental health treatment, that person actually prohibited under federal law from progressing a firearm. And there is a piece in Vermont law that allows someone who is prohibited by state mental health for often possessing to file a petition with the court and get the court to say they're no longer a danger to themselves or others, so their firearms rights can be restored. This is modeled on that approach. It's a similar idea. If you have a court order in place saying you can't possess an animal, this allows the person a process to have the court say, if you make a determination, if it's appropriate, that they can possess. So how does that work? Generally, you see that they can file the petition. Bottom of page 11, asking if they be relieved from the prohibition. Over on to page 12, they have to provide notice to the prosecutors so the prosecutor has an opportunity to contest if they want to. It's filed in the criminal division where the offense or adjudication occurred. Subdivision two, page 12, the court doesn't have to have a hearing. If the prosecutor doesn't object or if the parties stipulate, they can just go ahead and grant it if they want to. That's also modeled on an option that's available in the firearms context. I listed some factors that the court may consider. You see page 12. It's a nonexclusive list, lines 14 through 20. Again, this doesn't exist, so I was thinking what factors might be appropriate. You may wish that they either strike some or add some others. Obviously, ones there is a comparable list in the firearms statute, but none of them really translate to here because that's a different situation. So the ones that I have now, it's obviously subject to any change you wanna make, whether the person committed any subsequent animal cruelty offenses or other criminal offenses, whether the person successfully completed any required conditions of probation, whether the person participated in prevention or educational programs, or obtained psychiatric or psychological counseling. And again, these are just factors the court may consider, and it's about exclusiveness. So just examples. Angela, go ahead.

[Rep. Angela Arsenault (Member)]: Just a quick question about one of those conditions B on line sixteen and seventeen, whether the person successfully completed any required conditions of probation. Would the court interpret that to mean conditions of probation related to the just the animal cruelty conviction or case, or probation, including other

[Eric Fitzpatrick (Office of Legislative Counsel)]: That was certainly the intent. So you may be right. You want to include that specifically. Alternatively Or not. The

[Rep. Thomas Oliver (Member)]: court considering the defendant's on probation for something else and has a bunch of violations of probation because they're not complying, that may be something the court would consider. Yeah.

[Rep. Angela Arsenault (Member)]: I think I'd want to be clear about which one it is, though, what the expectation is.

[Speaker 0]: I think if it says conditions of probation as it is right now, it's the broader

[Eric Fitzpatrick (Office of Legislative Counsel)]: And it would be interpreted that way.

[Speaker 0]: Yeah, I would think so. Not tied to required conditions of occupation. Yeah,

[Rep. Barbara Rachelson (Member)]: but Joe may know the interpretive.

[Speaker 0]: Well, he won't tell us because

[Rep. Thomas Oliver (Member)]: And it's just examples, right? Yeah.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I just wonder if that's an

[Rep. Angela Arsenault (Member)]: unnecessary point of confusion. If a petitioner is assuming one thing, but

[Speaker 0]: then another point, I don't know.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Let me throw in my 2¢. Yes. I tend to agree to represent Arsenault, because I look at A and B. Next up. Because in this case, I look at a also. And just imagining how it would be interpreted. A, you specifically said, why would the person committed any subsequent animal cruelty offenses or any other criminal offenses? So the court might say, if the legislature intended to include any other probation for any other offense, you would have said so, same way you said so on a.

[Rep. Angela Arsenault (Member)]: Yes. Of course, we are missing the word or online.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yes. I noticed that. See if I can talk right later, I'll count that. You too. Yeah. I thought that's right.

[Speaker 0]: So the language as far as the court may consider, does that mean they can't consider anything else, or is that understood that this is just some of the things they can consider?

[Eric Fitzpatrick (Office of Legislative Counsel)]: That is understood. It's nonexclusive, exactly. Five wait for Angela.

[Speaker 0]: Eric,

[Eric Fitzpatrick (Office of Legislative Counsel)]: I have a

[Rep. Barbara Rachelson (Member)]: question about page 12, subsection two, line six.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Just one, sorry, I'm just All jotting this right, sorry, go ahead. Where were we, page one now?

[Rep. Barbara Rachelson (Member)]: Page 12, I'm sorry. Line five and six. I'm just wondering, we said that they need to give notice to they'll the, provide notice to the prosecutor, does that include notice to the attorney general, or is there some automatic way the attorney general was looking at every

[Eric Fitzpatrick (Office of Legislative Counsel)]: petition? No, it would just be whoever, because sometimes either one of them might be the prosecuting officer in a given case.

[Speaker 0]: Could be otherwise.

[Rep. Barbara Rachelson (Member)]: Right. Okay, so it is not that the attorney general's gonna weigh in on every case? Correct. Okay.

[Speaker 0]: Alright.

[Eric Fitzpatrick (Office of Legislative Counsel)]: So, yeah, and then you have some more language about how that proceeding works where the person files for a request that they'd be allowed to And really, the language that maybe I'd point the committee most to is over on page 13, lines two to four, because that is sort of the standard, when does the court grant this petition? And again, that was since this doesn't exist, I was thinking what makes some sense, but maybe either it doesn't, or you wanna change that or whatever. But the way I put it now is that the court makes a finding that the petitioner is no longer likely to abuse an animal in violation of San Dimel abuse statutes. That might be one way that the court would say, Okay, in that case, you're not prohibited from possessing anymore. But there may be some other standard that you think might be better. So

[Rep. Thomas Oliver (Member)]: that no longer likely to abuse, which kind of stuck out to me a little. I'm curious if Is there language like that in the firearm petition stuff that you sort of mirrored this on?

[Eric Fitzpatrick (Office of Legislative Counsel)]: It's similar. The wording isn't the same. But in the firearms statute, what the court has defined, and this term is defined in mental health law, defined that the person is no longer a person in need of treatment. But in mental health law, in a nutshell, that means they're no longer likely to harm themselves or others. So yes, on the one hand. On the other hand, a little tighter in the firearms, because that term is defined.

[Rep. Thomas Oliver (Member)]: Yeah.

[Eric Fitzpatrick (Office of Legislative Counsel)]: So comparable concept.

[Rep. Thomas Oliver (Member)]: Yeah. I guess we'll I'll see what Xanay thinks. Right. Yeah.

[Eric Fitzpatrick (Office of Legislative Counsel)]: So if the petition is granted subdivision five, lines five to seven, then if the court grants a petition, then the prohibition no longer applies so they can go ahead and possess an animal. Yeah. In Subdivision 6, it's appealable to the Vermont Supreme Court. Court reviews it on the record. De novo. And lastly, this is also directly from the firearms piece, lines 11 through 13. This is to prevent multiple successive petitions. So if a person gets denied, they can't two weeks later file again. They can only file they have to wait a year if they get denied.

[Speaker 0]: Sorry, one other question.

[Rep. Thomas Oliver (Member)]: Eric, is there a process for deciding whether something should be de novo or not for appeals like this?

[Eric Fitzpatrick (Office of Legislative Counsel)]: Think, I'm not sure. There probably is some fallback rule, some general rule, I think. I know that legal questions are generally reviewed de novo, whereas factual questions, they generally defer to the trial court. But I don't know if the court has sort of a handy rule of thumb that they use for which is which.

[Rep. Thomas Oliver (Member)]: Yeah. Okay.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Angela? Were we adding

[Rep. Angela Arsenault (Member)]: work with the own possessed care for, that phrase that we're repeating. Is that what we were adding also work with and all the conditions? Do we have to repeat all of that where it says Where are we? Page 13, claims five through seven, the court shall enter an order declaring that the order prohibiting the person from possessing or carrying prohibit

[Speaker 0]: So lines six and seven needs to be consistent with what the work

[Rep. Angela Arsenault (Member)]: The number of the against

[Speaker 0]: the executive at the work.

[Rep. Barbara Rachelson (Member)]: That bulky little phrase.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yes. And we'll need to add that in a number of places over on page 11, line 18, line 18, example. If you want to include the ability of the person who's filing his petition to be also to be getting to obtain an order that says, Okay, you can work with animals now. Right. Yeah. Right? Yeah. All the prohibition Yeah. Yep. Yes. Yep. Good. Yep. Alright. So we're now moving on to topic three. That's the end of topic two. That was the sanctions. Right? The sanctions the court may impose. But now we're moving on to this remember, I mentioned, this is an expedited civil forfeiture proceeding. And so the idea is to have the proceeding move forward in a more timely fashion and also allow for some of the costs that are incurred to be paid more easily in a more direct way and in a more early phase of the proceeding. So those are kind of the two things you see at work here. And remember, again, that this all comes into play because a humane officer can seize the animal at the outset, whether or not there's criminal charges filed or not. Because if there's no criminal charges filed, they still can bring this civil orbiter proceeding. That's proceeding against the animal. In theory, it's not a criminal conviction or any kind of criminal action against the owner. It's only to obtain forfeiture of the animal. It's a civil, not a criminal proceeding. So there's a number of changes that are made, proposed to be made to that proceeding. And you'll see it sort of starts at bottom, page 15. It strikes much of the existing forfeiture process.

[Speaker 0]: Not all of it.

[Eric Fitzpatrick (Office of Legislative Counsel)]: There are little pieces that it keeps, you'll see as we go along. But for the most part, it strikes the existing forfeiture process and starts fresh. So turning over to page 16, just a couple of things to note. Yeah.

[Rep. Angela Arsenault (Member)]: Just to make sure that this is noted by folks that on page 14 I didn't hear you say the Oh, you're

[Eric Fitzpatrick (Office of Legislative Counsel)]: right. Sorry.

[Rep. Angela Arsenault (Member)]: Missed that. We're changing the musts to a shall, if practicable.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Correct. And this is the veterinarian accompanying the humane officer Exactly. During the

[Rep. Angela Arsenault (Member)]: And that's the practicable practicability is proven somehow?

[Rep. Thomas Oliver (Member)]: I think what we heard was that if there was a challenge to the seizure, that then beyond the stage showed it was not possible to get a veterinarian care.

[Rep. Barbara Rachelson (Member)]: Okay, thank you.

[Speaker 0]: Thank

[Eric Fitzpatrick (Office of Legislative Counsel)]: you. Just a couple of things to note as we're going through, just so you can see, because we're gonna I'm gonna point these out as some of the big changes in the new process. So I'm on page 16, line sort of eight through nine and ten. Some of the struck language there, you see there's different stages of hearing that have to be added under the existing model. You imagine the forfeiture, or the seizure, I should say. There might be a time that passes between seizure and when the state's attorney institutes the forfeiture proceeding. So there's a time lag right there. Then after they institute it, within twenty one days after that, lines eight through nine, that's when you have to have the preliminary hearing. Then the defendant the defendant requests, there'll be a final hearing twenty one days after that. So you can see how those time periods can become very lengthy. So one of the idea here the ideas here is to, I said, expedite that process as possible. You also see on line 16 page sorry, line 20, the current burden that the state has is clear and convincing evidence. The proposal here is to go with a more moderate burden of preponderance of the evidence. So more likely than not, not clear and convincing. So it's not as It's that middle Sorry, it's the standard burden of proof in a civil court action, preponderance of the evidence, like who than not. So you'll see that when you go on, too. But sort of speaking generally for a second, what are the main changes to this new hearing process? The way it's going to work is that when the humane officer seizes the animal, right at that time, they give the owner notice of this. They hand them a copy of this section, and they give them a form that they can fill out if they want to request a hearing. And they tell the person, and it's in the form as well, you have ten days to request a hearing. And if you don't request a hearing within that ten days, then the animal's going to be forfeited. So the person has the right to request a hearing if they want it. So you have that constitutional right. But they could choose not to. And if they don't, then the animal would be forfeited. Additionally, at that time, the person is informed that they have to request a bond. I'm sorry, not request. They have to post a bond. So this provides some security. And the word used as security doesn't use the word bond, but it's a similar concept, which is that some money has to be posted. And then think about where does that money go? The way the proposal is the money gets posted with the court, but the court doesn't have to do anything at all with it. Remember, was I think you may recall that was something that judge Sohnet was concerned about. Instead, the money just goes right to the division of animal welfare. And they're gonna be the ones who manage the distribution of it to the custody organizations that incur the costs, that sort of thing.

[Speaker 0]: If they can't afford to post a bomb,

[Rep. Thomas Burditt (Vice Chair)]: they're not receiving the same due process as somebody else might say couldn't pay for the bomb. So how does that be addressed?

[Eric Fitzpatrick (Office of Legislative Counsel)]: That is an incredibly astute and excellent form. The same point that I thought of last night. So the answer to that is yes. If I'll move on to how we how we address. But, yes, you're exactly right that if a person is required to forfeit their property simply because they cannot pay the security, cannot pay the bond. That is almost certainly unconstitutional. That's a due process violation, and that's essentially penalizing somebody for not having the ability to pay. And so they don't get the same due process. So it's both a due process and a equal protection violation, according to the research I did. So, however, there's a way around that. And the way around that I was afraid of that. And the way around I should say way around. There's a way to address. And that is if you turn to page let's see here. Page 24, lines three and four. So the security required by this section may be reduced or waived by the court on the basis of financial hardship to the defendant. So courts seem to have said, at least the most recent decision I was looking at, that an ability to waive the required payment in the case of financial hardship. And that way you provide for the ability of someone to request a hearing, and they're not gonna be having their property for it just because of their financial hardship. That's the idea of having that language there, is to cure the due process machine, or at least improve it. And probably offer a spawn. Same idea.

[Rep. Angela Arsenault (Member)]: So is there a set process that already exists to do that? Who's determining the financial hardship? And is there

[Rep. Barbara Rachelson (Member)]: a form? Nope. No. So that's

[Rep. Kenneth Goslant (Clerk)]: what the

[Eric Fitzpatrick (Office of Legislative Counsel)]: court would could be. Be on the basis of decisional law. And the court could turn to other things. For example, there's a list, I don't know, of factors that are used in the context of the public defender statute. So court could conceivably look at that. But nothing laid out here. Sort of gives the court the basis to make a finding of financial hardships, waive the fee.

[Speaker 0]: Yeah, go ahead, Alicia.

[Rep. Angela Arsenault (Member)]: Just a drafting question, think, like a style question. Is there any way would it be out of the ordinary to actually move that language from and four and page 21 closer to the introduction of the security?

[Eric Fitzpatrick (Office of Legislative Counsel)]: The reason that it's not done, and you can do it, can repeat it twice, is because there is bond language, or sorry, security language at both the trial court proceeding and the appeal proceeding. So rather than put it in both places, I disagree. But you kind if you want, certainly, if you think it'd be more

[Rep. Angela Arsenault (Member)]: interesting. I'm just wondering, I guess I'd be curious to know how people use, how practitioners use our and Vermonters reading statutes. I don't know how many Vermonters are reading statutes, but it's just interesting to get all the way through this going like, oh my god, no, I can pay this. It's like, by the way. Well, it's like the big reveal.

[Speaker 0]: It's at the end of the story.

[Rep. Angela Arsenault (Member)]: Right? One thing I think of it

[Eric Fitzpatrick (Office of Legislative Counsel)]: is like The big reveal. I have a suggestion. I

[Speaker 0]: a suggestion. I carry it.

[Rep. Angela Arsenault (Member)]: So looking at because I agree with that. Looking at page 18, know we're going going ahead, but it's saying what needs to be included in the notice. I'm wondering if there could be an e or something that says and include the ability to apply for financial hardship.

[Rep. Barbara Rachelson (Member)]: Something will be Right.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah. Right

[Rep. Angela Arsenault (Member)]: there, maybe with C, where it says a statement of the amount due as security and how to pay it, that could include language on or how to petition. Don't know if petition's the right word, but you know.

[Rep. Thomas Burditt (Vice Chair)]: They fill out ability to pay forms all day long.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Something I can form a ticket request.

[Rep. Angela Arsenault (Member)]: Yeah, on the notice, right. Then also where it is on page 21. I have one other question about this section, but I

[Eric Fitzpatrick (Office of Legislative Counsel)]: want you to correct my Thank you. Okay, go ahead.

[Rep. Angela Arsenault (Member)]: So I'm wondering, what's the universe of people who might claim a legal interest to an animal?

[Eric Fitzpatrick (Office of Legislative Counsel)]: An animal might be found by more than one person, maybe it's a family, maybe it's spouses, maybe it's an animal that's So that's something

[Rep. Angela Arsenault (Member)]: that's understood or Yes, right,

[Speaker 0]: right, exactly. Sort of

[Eric Fitzpatrick (Office of Legislative Counsel)]: that legal interest formula or language rubric, I should say, is something the court's very familiar with. So yeah. So that's as we're so that's sort of the security discussion that we were just having and that so the person has ten days to request this hearing and to post the bond, post the security has to be done all within ten days unless they have this financial hardship extension. And if they do request a hearing, they do within that ten day period request, it has to be held within thirty days. And then as I mentioned, the Department of Animal Welfare holds security. And and then that all is laid out on pages 17. Actually, you see on page 17 too that unless this happens, it's lines seven through nine, so sort of, again, trying to streamline this process. Unless the if the person doesn't request a hearing and doesn't post the bond, assuming they don't have hardship, lines seven through nine, titled to an animal shall be forfeited pursuant to in this other section of preexisting log out title. So if they don't do those things, you don't request a hearing, you don't post the bonds, title's corporate, that's it. So again, trying to both minimize the cost by reducing the amount of time and then also provide for payment and security to offset the cost of care.

[Speaker 0]: This is minor, but I think this doesn't make a huge difference in this context. But I always have days a day in the back of my mind and have the things seven, fourteen, 21. Can we make the ten days fourteen days? So if your animal is taken on a Friday, you have two weeks from this Friday. It's just to be consistent with the day of the day. Right.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Sure. It's a full policy decision for you guys.

[Speaker 0]: I mean, this is not quite the same because we talked about plebiscaviate time. It's well, I mean, the the reason for that rule is it makes it easier for people deal with quartz. I'd be more comfortable with like two weeks generally anyway. The ten days seems to be pretty tight.

[Rep. Barbara Rachelson (Member)]: Reference to us is a meeting today.

[Speaker 0]: Admissions day? Well, that's why I'd say days a day, fourteen days. Fourteen days, not students.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah. And in, like And you want there's a lot of ten day stuff, but you want you just noted it there. Right. So you want ten days changed, fourteen everywhere? Because it's different time. Is it ten days?

[Speaker 0]: Well, particularly if it has anything to do with filing stuff in court, then yes. Okay. Definitely want it to be fourteen days because that would be consistent with what we've done with all Yep. So in other words, like this- I choose ten to fourteen, wherever the heck it is. Or seven if we wanted to go shorter, but I don't know. I always find it wonderful that I'm able to bring up the different day once in a while, I really do. It warms my heart.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Right, right. It's the

[Speaker 0]: small things in life. All right, anyway, go ahead. Sorry to have interrupted.

[Eric Fitzpatrick (Office of Legislative Counsel)]: No, not at all. So the so what hap so on the humane as I was mentioning, when the humane officer seizes the animal, they provide notice. And we were just talking about what has to be in that notice. We're talking about we're gonna add to that. They they have the opportunity to request for financial hardship. But another point I wanted to raise too is on page 17, lines 14 through 17. So if the person is there, the owner is there, they get notice and delivered. So due process is satisfied. No problem. They have noticed their rights and their opportunity to request a hearing. But what if a person's not there? This might happen. If you make an officer sees that there's an emergency situation, and they can remember because they have the authority to seize without a warrant in an emergency life threatening situation. Say they do that, the person's not there, they haven't gotten notice because they weren't there. So in that case, that's lines, again, to make sure that this procedure complies with due process, lines 15 through 17. Any person who is known to claim a legal interest in an animal who is not present shall be served with a notice as provided for by rule four of Montrose Sept procedures. That means they get personally served, they can't find them. There's a system in rule five. If you can't personally serve them, you can mail it to them. If you can't mail it to them, you can pack it on their door, that kind of thing. There's this sort of series of steps that are all outlined in GoFire. And that's only for people who weren't there. If you were there and you served, you don't have to do anything, because they were handed the notice face to face. All right. And then we have, sort of looked at some of it, what does that notice include? There's some basic descriptive information called the D and A over onto page 18. Statement that the person and this is line two. They may post a security and request a hearing. If they are to do so within fourteen, see there's a ten to fourteen there. So letting them know they can request a hearing. They don't want their animal seized. They can go to court and have a hearing. Statement of the amount of security due and a form they can use to request a forfeiture hearing. And now if that hearing request was made within fourteen see, I'm on line three, page Sorry, line nine. Page 18, line nine. Court is required to hold this hearing if the person requests it within the time limit. And if they do make that request within the period of time, then they have to have the hearing within thirty days. Everybody see that? And here's another big difference. You see where the hearing is, line 11, it's in the civil division. It's another concern that Judge Goslant had. Remember that these things taking place in the criminal division is, first of all, unusual because it's a civil proceeding, not a criminal one. And secondly, there's pretty, as you know, especially clogged docket in the criminal division as opposed to the civil division. From what I understood, judge, they will be able to adapt to expedited timelines much better in the civil division than

[Speaker 0]: they would in the criminal division. Makes sense. Yeah. I mean, there's arguments against that as well, but I think overall. Right. So

[Rep. Barbara Rachelson (Member)]: I'm wondering if somebody is indigent and wants to have a hearing, I know the task force on forfeiture was recommending that public defender be appointed if somebody was blacksided, but it's not current law. So if somebody wanted to have a hearing with this bill, they couldn't afford an attorney.

[Eric Fitzpatrick (Office of Legislative Counsel)]: They would be have to appear on their own without attorney. Yes. If they could afford one. And then or they could ask legal aid conceivably.

[Speaker 0]: It we'd be hard pressed to waste this on legal aid right now because They don't have funding. They don't have funding, and it's civil, so it can't be the defendant general. 90% of the cases in civil court would be pro se. I think nine. I think it's like 90%, each percentage. But Sony can correct me when he eventually

[Rep. Thomas Burditt (Vice Chair)]: Wouldn't there be a criminal action in tandem with this?

[Speaker 0]: There would, but that would that would be not a separate

[Rep. Thomas Burditt (Vice Chair)]: matter, but oftentimes, that attorney will help track both so they know what's going on.

[Eric Fitzpatrick (Office of Legislative Counsel)]: That's that's And, also, not necessarily. That's the that's the idea. They're they're not necessarily gonna be a criminal. There could be. There might not be. K. Next provision has to do with the mechanics of the bond. So I was at we're mentioning the put person has to pay a bond. Sorry. Can I ask one question

[Speaker 0]: before you Yeah, go ahead?

[Rep. Thomas Oliver (Member)]: The ten day, fourteen day time for requesting a hearing, if the person isn't served in person when the seizure happens and we're going through the syllables of procedure for service, when does that ten day fourteen day clock start ticking?

[Eric Fitzpatrick (Office of Legislative Counsel)]: I don't know. That's an interesting question. It might be Yeah, don't know. I'm not gonna answer that off the top of my head, because I would probably just something completely wrong. It looks like we

[Rep. Thomas Oliver (Member)]: said it starts ticking at the time of the animal, the time the animal is seized.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Certainly the case if they Right are

[Speaker 0]: at the time.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Whether, or how, sort of within the confines of due process requirements, whether or not that hearing could still go forward. Because I think personal actual service in every case is not required for due process. As long as it's reasonably calculated to provide the person with notice. So might that mean that the time limit could go on longer for somebody who isn't served? Potentially. But I think I would tend to say whether or not that created a constitutional problem, or property de carbon as applied question, right? Mean, it's not something that would make the statute flat out due process violation as written and said, well, how did that play out as far as Let's say they couldn't serve the person, couldn't find the person, they couldn't get them to accept service, or maybe they tried to evade service. And you can't do that either. All that would sort of have to play out in proceeding. But I will look at the central question generally. I think it probably would sort of depend on how much time had passed, whether or not that is an issue, whether or there's a flat deadline.

[Speaker 0]: Isn't there a date by which service is considered effectuated by the court? That would be the

[Eric Fitzpatrick (Office of Legislative Counsel)]: I don't know. I don't know the answer to that. It's an interesting question. Yeah?

[Speaker 0]: Yeah? We can do it

[Rep. Thomas Burditt (Vice Chair)]: for sure. Worst case scenario, couldn't you do it at your initial appearance?

[Speaker 0]: Again, this might not have a criminal case as hatchet. Right. Do you know that? Yeah. So the key here is making, you know, that there has been sufficient attempt for this person to know that they have fourteen days to request a hearing or if they are going to have forfeited their hearing. And my question is just like right now, way we have been is that that fourteen day clock starts ticking from the moment the animal seized. It should be, so long as there was service at that time. It should be connected to service.

[Rep. Thomas Oliver (Member)]: It should be connected to service, if not seizure, or I don't know.

[Rep. Thomas Burditt (Vice Chair)]: What's so likely that it's going to follow a sole zip tie, including the forfeiture?

[Speaker 0]: Know what I mean? The evidence that have noticed that they have to ask for this hearing fourteen days, my view, to a protecting process, that they've had their opportunity. They know that they have to ask for this hearing for a date forfeited their end. That's why we went to fourteen days instead of Well, fourteen days is just a technical how courts calculate days. Okay.

[Rep. Thomas Oliver (Member)]: Thank you. Yeah, that part is

[Speaker 0]: just really mostly technical. I know.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Okay, sorry. I think so. So we

[Speaker 0]: need to nail that down that it's attached to service. However, whether it's service at the time of seizure or afterwards.

[Eric Fitzpatrick (Office of Legislative Counsel)]: So in other words, if the person is present and handed the notice, the fourteen day clock start ticking right back. Yeah.

[Rep. Thomas Oliver (Member)]: And so if we get away from the seizure altogether, we just do it by service and kind of satisfies them. Because I'm just thinking about, like, they're not there, then the first step is get a share of to do or a service processor, and that can take a while.

[Speaker 0]: Pretty long.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Right. So that's the sort of category within which there could be that delay. If they are there and serve, then the clock starts ticking right away. All right, so on the bond issue, sort of the mechanics of it, so over on page 18, Sorry, the security. You see it sort of lays out that the person requesting a hearing has to post this bond. There's some guidelines for how much the bond is gonna be or how long it's gonna be. Cover necessary among line 15. Cover necessary food and necessary veterinary care for an initial forty day period. And then there's subsequent thirty day periods when they're gonna have to also postpone. All of that is general. The specifics, you'll see lines 19 through 21, are gonna be laid out in a schedule that's adopted by rule by the Department I'm sorry, the Director of Animal Welfare. So the amount of security and the payment schedule shall be set in rules adopted by the Director of Animal Welfare, and that's the Administrative Procedure Act that's being referred to there. So the legislature will get another look at that in the administrative rules process, right, because they're gonna have to propose this by rule, and that'll come back to the legislature so you have an opportunity to to see what that's all about. Security shall be posted within ten days following the seizure. You see that bottom page 18 over on the 19. Again, that ten day period starts running on foot traffic. And then you see the mechanics again, that last line of the subdivision, page 19, lines two and three. Court collects the security and transfers it to the animal welfare fund that already exists in law. The legislature created last year. And we have to modify that in this bill because you're expanding what the animal welfare fund can do, what money they can hold, what constitutes the fund, and that they can make distributions from it for purposes of custody and care of animals that are seized in criminal context.

[Speaker 0]: So maybe you can't answer this question, but because of the way this is being set up now, does this go to ways and means and appropriations? Or is it because it's kind of a different?

[Eric Fitzpatrick (Office of Legislative Counsel)]: I wouldn't see it as an appropriations issue because it's not.

[Speaker 0]: I wouldn't answer check with them.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah. Yeah. And maybe ways and means because it's involving the cancer at the sun. But again, it's not a It shouldn't be. It's really more of a Yeah, it's not.

[Speaker 0]: Right. But I'll nail that down.

[Rep. Barbara Rachelson (Member)]: Yeah. Built on an

[Speaker 0]: ad. Right.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I will note that I am doing a walkthrough tomorrow afternoon of a different animal welfare bill in house gov ops that also has some language about the authority of the animal welfare fund and the director of animal welfare. So just so you're aware of that. So it's not contradictory or in any way different than this, but it's adding some pieces to the same sections of statute, just so you're aware. So you may hear about that as well.

[Speaker 0]: We'll have to decide if we need to have gov ops look at this thing. Right. Right. Yep. So it's agriculture, gov ops, and food ocean

[Eric Fitzpatrick (Office of Legislative Counsel)]: water. Alright. Thanks. Sure. Alright. So now we're on page 19, subdivision c there. Remember, mentioned this earlier. This is the the adjustment of the burden of proof still on the state. You can see it's lines four and five. State is the burden of establishing by a preponderance of the evidence. Right? It's not clear and convincing anymore. It's a lower threshold. Your general civil threshold of preponderance, more likely than not, that the animal is subject to cruelty, neglect, or abandonment, and that just tracks the cruelty. So if a state can show by a preponderance that the animal was subject to cruelty, then then the court, lines ten and eleven, court will order the immediate forfeiture of the animal because the state met its burglary. So that's the way it works in the civil proceeding. Now you'll see Subdivision C, they're starting on line 12 all the way down to the rest of the page. This is this is allowing the owner to show that the animal should not be forfeit. And then, essentially, if you think of forfeiture proceedings in general, whether it's related to automobiles and DUI or motor vehicle infraction contacts or proceeds of crime, that sort of thing. There is always and there's a constitutional element to this. There's always an opportunity for the person to show it's called the innocent owner defense, It's what we're referred to as generally. And this is sort of a type of bag that allows the owner to say, hey, look, see line 15. I'm not the defendant in this case. Line 16, I didn't participate in the cruelty. And line 18, I didn't know about it either. So if you can show that, and actually open into 20 as well, and also that they will provide care to the animal if it's released to them, well, then the court can find, oh, okay, in that case, we're not going to order forfeiture. We're going to let this person have custody in. So it allows someone to show and make that defense. So that's that piece over from 20, that's just, see, there's no changes there. That's just existing procedures for the hearing, disability affidavits, that kind of thing. Lines 13, that any testimony that the defendant gives in the civil proceeding can't be used against the defendant at the current proceeding, that's existing law too. Does make clear, line 19, that rules of evidence do generally apply, except that hearsay is admissible. So that's an exception. It's allowing the court in that civil forfeiture proceeding to hear evidence that people that might technically be hearsay in another context. Here.

[Rep. Angela Arsenault (Member)]: There is. Mhmm. But I feel like it's still involved in this or it might get to the end. But you said this was all me right after, like, the a gun is seized by

[Speaker 0]: your armist.

[Eric Fitzpatrick (Office of Legislative Counsel)]: No. No. That was only the that was only the petition that the person can file to have the prohibition for five years or whatever, waived. And so that's a specific firearm. The rest of this is not related

[Rep. Angela Arsenault (Member)]: to fire. So my question is, so we get seized. It's the humane officer that takes it. On the form, it's going to give the information, contact information of who now has custody of it. Is there any discussion in here of how it's determined who's eligible to take custody of the animal?

[Eric Fitzpatrick (Office of Legislative Counsel)]: No, I'd ask your witnesses that question, because I think that's also an issue. That's nothing new about this bill. That civil forfeit procedure exists, and how they determine who takes custody is sort of how happens in practice. So I don't have any information on that, but I think your witnesses would be able to answer that question.

[Speaker 0]: All

[Eric Fitzpatrick (Office of Legislative Counsel)]: right. So now, all right, we go through this hearing, what happens next? Page 21. We're here, we're that. It's a court subsection either. What if the court doesn't order foreclosure? So in other words, the court finds that the state didn't meet its version of proof. What happens then? Well, the animal is returned to owner upon the payment of the cost of care. Because remember, animals still had to be held for a period of time before the court reads that decision. So costs were accumulating during that time. Person still has to pay that accumulated expense. And if this is lines five and six, but payment of those costs are not required if the court finds that there was no reasonable basis for the seizure. So if the court finds, hey, look, there was no basis for seizing the animals in this situation, well, they're not gonna make the person pay for it in that situation. And then as well, there's a provision in the next line that if a person doesn't make the payment, well then whoever it was, it kind of goes to your question, Well, who was holding the animal during that time? It's referred to as the custodial caretaker, line seven. That person still accumulated the cost. So it allows some reimbursement to that person from the animal welfare fund. Because remember, they've, in theory, been collecting bonds for people. But they're only up to not to exceed the amount of security line, 70. So they're not just gonna have all their costs reversed necessarily, but if they did, someone did post some security, well, then it makes some sense to pay back the person who incurred the costs. So that's why that's. Now, if the court does order forfeiture, in other words, the state did meet their burden, the court orders it forfeited, and then, and this is lines 13 through 16, then that security that they have paid is applied to the costs of care that were incurred by the caretaker. So in other words, you see how the idea here is to have some of these costs paid upfront so there doesn't have to be a separate action afterward. The person paid security, then you can take that security and apply it, pay it back to the custodial caretaker for whatever they incurred during that period. But if there's any extra, so let's say the person, whatever bond they submitted turned out to be more than how much it cost to care for the animal, well, money goes back to the person who posted it. That's line 16, page 21. So there's not like a double dipping there. Back. I could say I'm just too much. If

[Rep. Kenneth Goslant (Clerk)]: you back up to

[Eric Fitzpatrick (Office of Legislative Counsel)]: that, back up to where you just were,

[Rep. Kenneth Goslant (Clerk)]: though, The custodial caregiver is the one that's gonna be

[Eric Fitzpatrick (Office of Legislative Counsel)]: on the on the hook for the extra expense. Right? If there's not enough money there. I mean, that's not really fair to them. That is true. Then that Then you turn to existing law, and you're right, they'd have a gap there. In that case, you go get line 19, that's under existing law. Then the restitution unit could go after the person for that gap. But you're right. In terms of making the custodial caretaker whole upfront, they'd only be able to use that amount for It's an

[Rep. Kenneth Goslant (Clerk)]: That's just gonna tie it up more in a lawyer's hands. It's just gonna cost more debt. And the animal is still gonna be housed. I mean, it's not gonna be released.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Well, no. They would be worse. Right? In this case, it's assuming that well, first of that's existing law. So the idea is that now there's no opportunity to get cost up upfront. By having the bond, you allow them to at least get some payment back in the beginning. But some. Some. Right. That's not really fair. Well, as I say, the the restitution unit is the one who goes after the rest. The rest is a policy decision for youths. I have

[Rep. Angela Arsenault (Member)]: a question about that. Can you ask that question that

[Rep. Kenneth Goslant (Clerk)]: Yeah. As soon as I'm done grinning about policy.

[Speaker 0]: Angela, do you

[Rep. Angela Arsenault (Member)]: to I just want to make sure I'm understanding this. So there's a chance that the security amount would cover the care cost. It's not a guarantee that it will meet the cost. Think I the intention is that it will meet the costs, and that will be developed in the rulemaking procedure, I think, and that was referred to.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Amount- Standard. Yeah, if you look back at page 18, line 14, security has to be an amount needed to cover food and necessary veterinary care for the animal for initial four day period, and then you have similar costs for a subsequent thirty day period. So again, specifics of that will be in the rule, but that's the idea. So it could go either way. It could be that that'll be enough because the idea it's based on some hopefully estimate well, not hopefully, definitely some estimate by people who have more certainly more knowledge about how much that stuff costs than I do or

[Rep. Angela Arsenault (Member)]: Or any of us.

[Eric Fitzpatrick (Office of Legislative Counsel)]: I wasn't gonna say that. Okay. Presumably, the professionals can put an estimate together that hopefully reflects some degree of reality as to how much it'll cost. As you say, they might still end up short sometimes. Sometimes maybe they'll end up with a little more, but to be a good question for the witnesses is still

[Rep. Kenneth Goslant (Clerk)]: I'm just gonna use a simple animal, a horse, right? That's a whole different breed of animal, pun intended, right? They're way more fussy on food, you gotta have better food, right? If the farmers or somebody hasn't got the proper cut of hay, they don't eat well, maybe they will if they're starving, I don't know, But, I mean, they are they are finicky animals, which is the only reason why I like Clydesdales. And they're finicky.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Don't get me wrong. But just to kinda because that's a very good point. And I had some discussion as we're I was drafting this. Presumably, this schedule is not gonna be having the same amount of cost of care for Oh, cool. It's gonna be based on the animal. And and that the and I think you can ask your witnesses about this, particularly the witness who is gonna have to develop the schedule, for example. You know?

[Rep. Kenneth Goslant (Clerk)]: I'm looking at him.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yes. Hey. What's the plan? You know? And I think you're in I guess it is. Your answer will be, yeah. It's gonna depend on the animal and all that.

[Speaker 0]: So we're gonna hold questions for you to go get through the rest of this so we can get to Steven Brown and Sure.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Of background with questions,

[Speaker 0]: and we do have language and exams. Yeah. So so, yeah, we could go through that, and then we can hear from state secretary Brown. So what

[Eric Fitzpatrick (Office of Legislative Counsel)]: So should I take a break? No. No. No. Go ahead

[Speaker 0]: and Okay.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah. Either way. It's fine.

[Speaker 0]: We'll go five, ten minutes just to kind of walk

[Eric Fitzpatrick (Office of Legislative Counsel)]: and rest. Yep. And then we'll circle back with questions. Yeah. Sounds good. So let's skip over to 20 page 22 is where we are next then. We just sort of got through that procedures of the of what happens if the Vaan or security, rather. There was an appeal right to it's bottom page 22. Forfeiture order may be appealed to the supreme court. I'd add some again, trying to move these timelines on. If a notice appeal is filed within five days after the order is is issued and the appellant post security. Again, this goes back to representative Arsenault's question about why did he have that security language down at the end there because there's also a requirement. If you're gonna appeal it, you can appeal it. But, again, it's making clear that you have to post security for the appeal period as well. But again, same point that representative Oliver is making, which is that there's a financial hardship exemption as well. So that applies to all of that. That's why that language again. So yeah, they do have to post security, but they can get a hardship exemption for that. And then you have the timelines of the And that language just repeats page 20. That's just a repeating of the exact same language about security mechanism that gets paid to the animal welfare division, they gets paid to the court rather, and they transfer to the animal welfare fund. And then again, you have some timelines on the appeal, lines thirteen and fourteen, shall be an expedited timeline, a final decision issued within five business days after the hearing. Alright. So now we're gonna kinda can move we've actually already looked at this already. So bottom page 23, this is the list a number of officers who are included in the crime of impeding a public officer. So it's unlawful for a person to interfere with these officers that then two adds the director of welfare to that. If a person impedes them, for example, while they're conducting an investigation, that it gets added to that crime. Over on page 24, there's some language that the time limits are not jurisdictional, may be extended for good cause shown. So again, there is a good cause ability of the court to extend these. And there's the language we looked at earlier, security may be reduced or waived on the basis of financial hardship. Now this part, we're gonna don't have to say much about. But if you start on page 24, line five, you see no changes for the next several pages all the way over on the page 27. Because what is all that? That's that cost of care action that was in the village and tributes. That's this whole separate thing from this forfeiture proceeding we were just talking about. That's the one where a separate civil action can be filed by that custodial caretaker, the person who had custody animal during that period or the state. And they can try and recover costs that way as well. You may decide that this isn't necessary now because of the streamlined expedited forfeiture proceeding with the new timelines and the new mechanisms for payment of the security upfront, this may not be That's a different approach. So you may still wanna have this, you may not have it. It's still in here for now, because that's a committee decision. So that brings us all the way over to page 27. And this adds, this is, again, this is in title 20. You see, we've moved now from title 13 to title 20. That's public safety title, where the division of animal welfare was placed last year when that statute was passed. And you'll see that blank start at the very bottom, page 27. And this adds to the list of things that the department the division of animal welfare has authority to do. What do we have authority to do? Turn over to page eight. Actually, they're required to adopt rules. And what are the rules gonna involve? That's lines three through eight. Representative Goslant, this kind of responds to what you were bringing up. The rules have to provide for the receipt and management of security posted in animal forfeiture proceedings and transferred to the to the fund by the courts, including the amount required, and to make distributions and reimbursements from the fund for the purposes authorized by which is the statute we have just looked at. So they can make reimbursements to these organizations that, for example, were holding these animals for three months while the court proceeding was going on to reimburse them for their costs. That's the idea. And now the fund itself, there's a statute also right there next in existing that you passed last year that creates the animal welfare fund within the Department of Public Safety. So this has to make some tweaks to that fund to adapt to what we were just looking at. What's it do? It says the fund, what's gonna be in the fund? You'll see existing law one and two, revenue collected from surcharges associated with certain offenses, appropriations made by the general assembly. And then what do you add? Subdivision three, security posted at animal forfeiture. Proceedings are transferred to the fund by the court. So that stuff goes right into the fund. And then over on page 29, subsection d, director of animal welfare has the authority to make distributions or reimbursements from the fund for the purposes authorized by the forfeiture statute we've just heard. Excellent. Thank very much. Well, that was that

[Speaker 0]: was good. And and I I noted some of my own questions, and I know other people may have questions. So we'll have you come back after we talk to Stephen Brown, a couple questions.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Sounds great. And I know we're

[Speaker 0]: going to be having you back on Tuesday of next week and maybe have you sit at the house. Judge Sonay, we're going to schedule Sonay for tomorrow at eleven.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Oh, He's not coming today?

[Speaker 0]: Yeah, he ran out of time. But for now, we'll hear from State's Attorney Brown and then we'll take a break before we turn to some other business. Thank you for, making some time available for us, Stephen. I really appreciate it.

[Steve Brown (State’s Attorney, Windham County)]: Well, thank you, for inviting me. I really appreciate the opportunity to, testify about this bill. I, and all just to be candid, I have thoroughly reviewed the bill as introduced, and I just got the second edition of the bill this morning, and I, read through it while sitting in the courtroom. So I can't say I fully digested it, but I think I got the gist of the changes that were made. And I appreciate the committee getting that bill to me before I testified this morning. So my name is Steve Brown. I am the state's attorney of Windham County, and I've been practicing as a prosecutor for eighteen plus years. And I fortunately or unfortunately have handled a number of these proceedings over the course of my career. And I think the changes that are being proposed by the committee make a lot of sense and really are needed changes. I'm happy to go through kind of point by point some of the things that I've highlighted if that's helpful for the committee. Great.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah, that's very helpful. Thank you.

[Steve Brown (State’s Attorney, Windham County)]: So if you go to section three fifty three B3, there's language, at least in the bills introduced and I think it remained in the in the latest edition that allows a court to extend a order for a person not to possess, own, or care for any animal. I think it's for I think it's a five year period and a ten year period. That makes a lot of sense. The one question that I had when I was reviewing the bills introduced was, what is the enforcement mechanism? Are you expecting people to be on probation for that length of period of time? But when I read the new bill, I did really like the added language that makes it that I think provides an enforcement mechanism that makes it a crime to possess an animal after being ordered by a court not to possess it. And that makes a lot of sense. I think we can get some good outcomes without having to put somebody on probation or some other type of sentence. Just having an order in place is great. And now there's an enforcement mechanism. So I think it's a great change. The well, on the topic of enforcement mechanisms, if you go to three fifty three b five, and I'm referencing the the bills introduced, there's language about periodic, unannounced visits. And the language that was added to the bills introduced, added defendant beginning after the end of the five year prohibition to own possession care for an animal for a period of subscribed subdivision three of this section. So it allows for visits to people's properties once they've been then allowed to possess animals. What is the enforcement mechanism? What happens when somebody says no, you're not coming out of my property. No, you can't come inspect my barn, whatever, you know, whatever the location is where the animals are residing. So, I I think the committee should should think about what type of enforcement mechanism we need to enforce that provision. In three fifty three F, in the bill Could

[Speaker 0]: you hold just for one second? Any suggestions on that, on an enforcement mechanism? Our legislative council may have a suggestion on it. Quite a few have. Yeah, let me think

[Steve Brown (State’s Attorney, Windham County)]: about that. I'm happy to think about that and email some of your committee members. I don't want to shoot off the hip.

[Speaker 0]: Okay. No, that's fine. Yeah.

[Steve Brown (State’s Attorney, Windham County)]: In three fifty three F, there was language that replaced the word telephone testimony with remote testimony. And that was omitted, I think, in the latest version of the bill. The old bill allowed telephone testimony. We obviously now have the ability to use, Webex and Zoom, and I think it would just update the statute to be in current practice. And it gives, folks greater protections because you can actually see, the person testifying, in lieu of just hearing them testify. I don't think that's a terribly controversial change to the language of the statute. In three fifty four a, this is not a huge change, but in three fifty four a, there's language that requires the Secretary of Agriculture, Food and Markets shall be consulted prior to any enforcement action brought pursuant to this chapter that involves livestock and poultry. That language has been interpreted by the Vermont Supreme Court to, be essentially advisory. There's no, there is no, language in the statute that prohibit that provides any sort of, relief to a person, who's, had a case filed against them or other enforcement action. So in other words, it would be helpful to have language that clarifies three fifty four a to mean its advisory, because the Supreme Court and state versus Bona, I can give the citation to you all. It's a it's a three justice opinion, 2015 Westlaw, five seven nine three two three four. I'll say that again. 2015 Westlaw five seven nine three two three four. The opinion says clearly, a failure to a consult require failure to failure to, consult with the secretary does not require dismissal of a criminal or civil action. And so perhaps I have some language that says that in March a, it would be helpful to have that clarified so there's no question that that the failure to consult isn't fatal to a criminal action or civil forfeiture action. And then it brings me to cost of care, which is obviously the hot topic that the committee is dealing with here. And first I wanna say that on the cost of care branch, we need to have language in the statute that provides some limited immunity to humane societies and other custodial caregivers who are taking in the animals. Let me explain what I mean. So animal forfeitures range from a fairly simple forfeiture of one animal, let's say a cat, all the way up to, let's say, dozens of horses or other livestock. When we are seizing a cat that is not a particularly complicated operation, seizing larger farm animals, horses, cows, requires a lot of planning and often requires resources that really we don't have in state law enforcement. And the humane societies and some of the care providers will help will come on to the site to help remove the animals from the site. And what I'm hearing from the care providers, the nonprofits, the agencies who aren't funded, who get no funding from the state is that they are having trouble getting insured because of risk of lawsuit, helping law enforcement and being involved in these cases. So if we could have some language that provides some limited immunity from lawsuit when these agencies are are being asked to help law enforcement take animals that have been abused and neglected off of a property, that would be hugely helpful. It would also be hugely helpful to have language that extends that immunity while the caregiver is caring for the animal prior to forfeiture. So that period between the seizure and the forfeiture, I'm not suggesting that it should be all outright immunity, but it should perhaps be an immunity that requires if a lawsuit is brought needs to be some sort of gross misconduct on the part of the caregiver. Because we don't want these caregivers already saddled with very, in some cases, very expensive care of animals. And I just heard some of that discussion. I think when I I logged in. We don't want these agencies to also then have to be faced with litigation because they're being called upon by us to help them care for the care for the animals. So that's really my first ask. And that's really one of my most important asks that I'm here to ask the committee to consider. The a couple other items I would like to highlight, that would allow caregivers and humane societies under, the statute to initiate their own enforcement action to collect a judgment. So let's pretend we have a case where we have a judgment, against a person. The court has found that the animals, should be forfeited. The court then held a cost of care hearing as determined, for example, that $50,000 of care is owed to the caregiver. The statute currently allows the restitution judgment order, restitution unit to collect the judgment. I think that the caregiver should also be permitted to file independent collection proceeding to collect on those judgment orders as well. It just gives them a little bit more leeway and authority to go after the collection end of the case.

[Eric Fitzpatrick (Office of Legislative Counsel)]: The Can

[Speaker 0]: question you on that particular issue? Is that Tom, is there Tom, do you have a question on that?

[Rep. Thomas Burditt (Vice Chair)]: Yeah. It's similar. My first I've got two little questions. My first one would be, has there any ever been any necessity in one of your cases in your experience where there needed to be forensic examinations or examinations for purpose of evidence that might cost money by a vet?

[Steve Brown (State’s Attorney, Windham County)]: Yeah, I think I understand the question. So have we ever had to use resources to get an animal examined so that we could use that examination in a court proceeding. Is that

[Rep. Thomas Oliver (Member)]: Yeah.

[Steve Brown (State’s Attorney, Windham County)]: Yeah. So the animals, in my experience, are always examined by veterinarians. And the cost is often incurred by the caregivers. The veterinarians that I've worked with over the years for the most part have always been very willing to come and testify and to do their part in these cases. I've never had pushback from veterinarians to testify when called upon. So yeah, the examination is a part of every case because we need that evidence, especially if there's medical neglect being alleged.

[Rep. Thomas Burditt (Vice Chair)]: I have a part two to that and and it kind of has to do with how I used to deal with this stuff involving humans, you know, people. And that would be until ownership is transferred of that animal to say, like, humane society or whoever, I personally believe that the person who's getting the bill is the person responsible for the animal. Like

[Steve Brown (State’s Attorney, Windham County)]: Yes. Fundamentally, that's what happens, but that's not it takes, there's some steps to get to that point. And currently under the law, we have to have, the animal has to be, have been forfeited. And then there needs to be a cost of care hearing where the, where a court has to determine that the care has been reasonable and that the costs incurred were a function of the seizure. And that hasn't been traditionally a huge obstacle. But it takes a lot of time. And every day that is a day that the horse or cat or dog or animals be in the care of a caregiver and hasn't been forfeited is a day that they're incurring additional expense. So even once forfeiture happens, there's an appeal period and the current statute allows the animal to be then transferred one, you know, pending appeal. So that's usually not a roadblock. But the longer it takes to get to the forfeiture decision, the longer and the larger the bills are for the cost of the animal. And some of the bills I've seen have have been over a quarter of $1,000,000. We're not talking, you know, we're not talking small amounts of money.

[Speaker 0]: Thank you. Angela? Yeah. Another question for you as well.

[Rep. Angela Arsenault (Member)]: Yeah. Thank you so much for being here. I'm curious, your point about independent that's like the ability to initiate an independent election proceeding. I guess the the implication is that right now folks are barred from doing that or they're just that pathway doesn't exist. Is that true?

[Steve Brown (State’s Attorney, Windham County)]: So it's not clear to me that pathway exists. I'm not sure they're barred from that, but I think there's potentially an argument that perhaps they could be barred from that. I've never explored it. I've never seen I'm not aware of any court decisions one way or the other on that issue. But, in the instance where there's a judgment that's a substantial amount of money upwards of over $100,000 would be a nice option for caregivers to be able to any main societies to be able to have that option to have their own counsel go out and try to collect through obviously through legal means through the court system to collect on that judgment and perhaps take that judgment outside the state of Vermont. And I don't know how far the restitution unit will go to collect. But sometimes private counsel has additional resources that maybe the state doesn't have to go out and assist in collecting those debts.

[Rep. Angela Arsenault (Member)]: And is your is your concern for your, you know, an understandable concern for for that the need for that pathway alleviated at all with the new proposal. And I know you just received it. But with this setting up of a system through which the security is posted or the animal is forfeited. Potentially caregivers are receiving at least some of that money upfront. Do

[Eric Fitzpatrick (Office of Legislative Counsel)]: you see that as an improvement?

[Steve Brown (State’s Attorney, Windham County)]: Yeah, think potentially that could alleviate some of the issues that we're currently seeing under the statute. Because right now, as the bill currently reads, in order for somebody to initiate a for a a challenge to the forfeiture, they need to if I read the bill correctly, they need to post that bond at the beginning of the litigation. So potentially that could help. Yes. And while we're on that subject, may I also, highlight, a procedural question that I had, when animals are seized from a owner, would the state be serving some sort of formal official notice that, a forfeiture proceeding has been initiated and, should that notice provide the procedural steps that an owner should take in order to challenge the forfeiture. In other words, I I didn't see it in the statute. I didn't see that the state had any sort of any sort of duty to provide the owners with any sort of information at the beginning and I would recommend that the statute layout what exactly we would need to be providing, owners who've had animal seized and what steps they need or need not take in order to, move forward. Does that make sense?

[Speaker 0]: Yeah, we talked a little bit about this before you got on as far as a notice, making sure there's a notice to the owner either at the time of seizure, there's gonna have to be some sort of service of notice to the individual, but it's still, it's a little bit different and it puts the onus and that will be part of the description of whatever is provided the owner, that they actually have to request, the hearing. And within fourteen days, it's going to be that they would have to request a hearing. And then within thirty days, they would have that hearing. So there put some onus on the owner to take that step, and if they don't, then the animal would be forfeited. That's the approach that we've taken, but we are going to clarify that in the next version of this.

[Steve Brown (State’s Attorney, Windham County)]: Yeah, it'd be good to clarify what the notice should look like, what information should be in it.

[Rep. Angela Arsenault (Member)]: Do you have the Sorry.

[Speaker 0]: Yeah, you go

[Rep. Angela Arsenault (Member)]: So on page 17 of the new draft 1.1, starting on page 17, line 12, and going over to page 18, lines one through seven. I wonder if that's what you're talking about. So it's saying that notice shall be given at the time of seizure. And then it says what the notice shall include.

[Steve Brown (State’s Attorney, Windham County)]: Okay, okay.

[Eric Fitzpatrick (Office of Legislative Counsel)]: So if you can take a look at that when

[Rep. Angela Arsenault (Member)]: you have a minute and let us know if we're missing anything. Okay.

[Steve Brown (State’s Attorney, Windham County)]: I will do that. My computer is not particularly happy with me right now. I Yeah, you can certainly

[Speaker 0]: get back to, you certainly back to us on that particular question.

[Rep. Angela Arsenault (Member)]: Yeah, and just so you know, we did talk about adding as a required element of that notice information about, know, steps for proving financial hardship.

[Speaker 0]: Okay.

[Steve Brown (State’s Attorney, Windham County)]: That's great.

[Rep. Angela Arsenault (Member)]: Or the existence of that option, should say.

[Steve Brown (State’s Attorney, Windham County)]: That was another question I had is what happens when somebody doesn't have the financial means to post the bond? Okay. And it looked like the current draft has

[Speaker 0]: kind

[Steve Brown (State’s Attorney, Windham County)]: of meshed the, what I was calling the bond hearing and the forfeiture hearing into one proceeding. The initial draft kind of had dual, you could have, you know, dual cases pending. You could have the bond case pending and the forfeiture, but it looks like they've been meshed together. Is that a fair Yes. Assessment? Okay.

[Speaker 0]: Yes. Okay.

[Steve Brown (State’s Attorney, Windham County)]: I will, of course, take a deeper dive into the new draft, and I'm happy to share those thoughts with the committee. I'm happy to answer more questions. I'm happy to do whatever you all would like me to do.

[Speaker 0]: Any other questions? Yeah. We definitely appreciate if you have additional comments to to submit those.

[Eric Fitzpatrick (Office of Legislative Counsel)]: This is a

[Speaker 0]: bill that will be having, hopefully only one more version. Hopefully this is the penultimate version, but we'll see what happens with that. So anything that you could provide by the beginning of next week would be appreciated. But Angela has a question as well.

[Rep. Angela Arsenault (Member)]: I have a question that I think is for you that I didn't ask our legislative counsel. Again, this is new language in the most recent draft. Let me know if you want to think about it a little bit. On page 20, lines nineteen and twenty, we say, The rules of evidence shall apply in this forfeiture hearing, except that hearsay shall be admissible. And I just wondered if you have thoughts on why or if it's important to allow hearsay in these cases.

[Steve Brown (State’s Attorney, Windham County)]: Yeah. The court the court the committee may want to clarify what type of hearsay. They may wanna use the word reliable hearsay. And there's a very robust body case law that we currently have that interprets what what reliable hearsay means in the statute. Reliable hearsay is that word is that phrase is used throughout the statutes and the rules. Reliable hearsay would allow, for example, a affidavit from a veterinarian or an affidavit from a law enforcement officer with firsthand accounts. And obviously, an affidavit from a law enforcement officer recounting what somebody else told them may get you out of the realm of reliable hearsay. But reliable hearsay has been it's been litigated. It has a meaning to lawyers and judges, and I think it's probably a safe phrase to use for the for this type of proceeding.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Okay. Thank you.

[Steve Brown (State’s Attorney, Windham County)]: I I think that, you know, currently the statute allows it allows the use of affidavits to prove up the state's case under forfeiture if the affiant, the veterinarian or law enforcement officer is available to testify currently by telephone, although we use Webex. You may wanna make sure there's some safeguards in there to make sure that any hearsay, any reliable hearsay that is used, perhaps the Appian is available in some mechanism to testify. If it's remote, that really takes the burden off of a witness having to travel a long distance to get to to get to a court for hearing because we have veterinarians that are all over the place who have treated animals that we've that we've seized and to ask a veterinarian to take an entire day to come testify for twenty minutes is really difficult. But when they can hop on a Webex and testify for twenty minutes, it's it's been huge. It's been really helpful and, has definitely allowed us to, to move cases forward.

[Rep. Angela Arsenault (Member)]: Great. Thank you.

[Speaker 0]: Alright. Thank you so much for your time. I really appreciate it. I'm glad that we were able to finally fit you in. Keep on working on that backlog. We appreciate your work.

[Steve Brown (State’s Attorney, Windham County)]: I apparently have I board representative Goodnow enough, so he left the committee about this.

[Speaker 0]: Yeah. Definitely definitely give him some grief for that.

[Eric Fitzpatrick (Office of Legislative Counsel)]: Yeah. Alright. Thank you, everybody. Thank you.

[Speaker 0]: So we're gonna take a break till quarter after, and then we're gonna look actually at we used to do a drive by at 05:40, which is a bill that's in corrections. And Hillary, we're gonna have Hillary do a walk through.

[Eric Fitzpatrick (Office of Legislative Counsel)]: We're all very excited about that.

[Speaker 0]: Then we will hopefully still have time then for Jeannie and