Vermont Legislature SmartTranscripts:

[Martin LaLonde (Chair)]: House Judiciary Committee this Friday morning, January 30, and we're turning to some additional testimony on H five seventy eight animal cruelty bill. Gonna hear from judge Zonay first. Thank you very much for being here this morning.

[Chief Superior Judge Tom Zonay]: Good morning. Thank you. So, Tom Zone, Chief Superior Judge. I have taken a look at version 1.1. I believe that's the most recent version. Alright. Yes. So, if we go to page the first section I'll talk about is, if we go to page 11, at the bottom of page 11 on line 18, This section, subsection begins to talk about a petition for an order that the person be relieved of the prohibition. That they can't possess pets. If you go on to page 12, line five, it says that the court shall grant the petition without a hearing if neither the state's attorney nor attorney general files an objection. It then says, if the court grants the petition, the court shall make findings and issue an order in accordance with this section. The court can't make findings about the appropriateness of granting it if it's essentially a default And so if the intent here is that the court shall grant it, then it should just say the short, the court shall grant it and issue an order. It shouldn't have language about issuing findings. The only finding would be is nobody responded. I would note that it's a policy decision for the legislature to have that type of shall because if the court imposes this, let's say, at a sentencing hearing, if the state doesn't ask for it or the defense doesn't ask for it, what this does is it provides a mechanism for the parties to essentially change a sentence over the authority of the court to keep it. And in contrast with the section, I believe you may have heard about yesterday for reinstitution of firearms, the certificate for being able to have firearms, that has a may in it as opposed to a shall. And so, again, policy, but you may wish to say the court may because the court may have reasons it wants to bring the parties back in. Right, right.

[Martin LaLonde (Chair)]: So that'd be line five changing the shell debate.

[Chief Superior Judge Tom Zonay]: Yes, that should work.

[Martin LaLonde (Chair)]: And striking the need for findings in that particular scenario. Yeah, that makes On

[Chief Superior Judge Tom Zonay]: page 12 lines fourteen and fifteen, actually line 15, it should have the word or after the word offenses, I believe. Whether the person committed any subsequent animal cruelty or other criminal offenses. This section or next section, three, when the court is considering whether or not to lift the prohibition from the order, it says the court may consider, factors. It is questionable whether these factors are intended to be exclusive or non exclusive and so if the intent is to have them as non exclusive factors, you may wish to have the lead and say may consider any relevant factors, comma, including.

[Martin LaLonde (Chair)]: Yeah. It's interesting because Eric Fitzpatrick suggested that isn't exclusive, but I like, I mean, the fact that I looked at it and was questioning, I think we may as well be clear about it. Any relevant factors including? Yes. Right, okay. Makes sense.

[Chief Superior Judge Tom Zonay]: If you then go to subsection four page 13 line one. Again, the word shall grant a petition if it finds petitioner has demonstrated. If you're comparing this to, again, 13 BSA eighty eleven, the court may. The court maintains that discretion. Great. I would also note that subsection four on page 13 is really the ultimate issue. They're not going to do something to animals again. It's likely it's not going to happen And if you compare this to 13 VSA eighty eleven, there are, I'll say subsets, they're not saying the person's not going to go out and commit the crime, it's you're looking at other aspects of it making specific underlying findings. And so you may wish to take a look and say are we really intending the judge to have to be the soothsayer and predict that it is no longer likely or are we having the judge find that these factors are there and I would suggest taking a look at eighty eleven just to get an idea of how it's structured for firearms may be helpful.

[Martin LaLonde (Chair)]: Yeah, that was flagged to us yesterday that no longer likely to abuse is we do need to do some work on it. Any other suggestions other than looking at, eighty eleven factors?

[Chief Superior Judge Tom Zonay]: I think a I think if you look at eighty eleven, you would be able to tie it into some of the some of the concepts that the policy seems to effectuate about what you're really looking for the judge. You know, there's been no evidence of this. There's no evidence of that things like that.

[Martin LaLonde (Chair)]: Is it is that, title 13?

[Chief Superior Judge Tom Zonay]: It is title 13. Eight zero one one. Correct.

[Martin LaLonde (Chair)]: Thank you.

[Chief Superior Judge Tom Zonay]: Page 13 line five. It says the court shall enter an order declaring that the order prohibiting the person from owning possessing no longer applies. You may just say the court shall enter an order vacating. Just a little simpler. Order saying that they can't have it.

[Martin LaLonde (Chair)]: Vacating the order.

[Chief Superior Judge Tom Zonay]: Yes, that should work. Page 13, lines eight through 10 talk about an appeal to the Supreme Court. Lines nine and ten say the appeal shall be on the record and the supreme court may review the record de novo. You don't need the second half of that sentence because there's no record de novo review. Inconsistent concepts. De novo means a new trial or new hearing and on the record means you don't get a new hearing. So if it just says the appeal should be on the record, that's fine. That's what it would be anyway absent specific language saying it was de novo but I would delete after the word record. Page 13, page 13 line 11 through 13, section seven. It gets a little wordy and confusing as to what is is being stated here. You may wish to take some guidance. The intent seems to be that if someone files a petition, they can't keep filing successive petitions. If you look at title 13 section 7,605 which addresses the ceiling petitions, It says if a petition for expungement or ceiling is denied by the court pursuant to this chapter, no further petition shall be brought for at least two years unless a shorter duration is authorized by the court. And so that type of language I think would be a little clearer. It also leaves open that if someone appeals and the Supreme Court were to issue a different order that that order may impact when someone can refile. Yep. Then we can jump ahead to page 17.

[Martin LaLonde (Chair)]: And

[Chief Superior Judge Tom Zonay]: this is where we start having a lot of words about dates and times and ten days and five business and this and that and I did hear yesterday chair LaLonde say, what about fourteen days instead of ten? And I believe if I was on the Supreme Court, my response would be, I concur. May be certainly it's a policy decision but if you went to fourteen days, day is a day under the rules of civil procedure that would work. Speaking of rules of civil procedure, if you look at lines ten and eleven on page 17, it says the computation of the ten day period shall include the day on which the animal is seized. That's actually not consistent with the rules. The rules exclude the day on which you start, and so it would start the next day. I think it's easier to stay with the rules.

[Martin LaLonde (Chair)]: So we're gonna probably be changing that anyway to upon notice being effectuated or something to that effect. It's not the seizure, but it's the notice that is when the computation starts.

[Chief Superior Judge Tom Zonay]: Okay. And so that may shortcut what I was gonna say next. If you go to page 18, there's quite a bit of interplay between you have ten days to file the request and then if no, if you don't file a request within ten days, on the tenth day, the court has to do a, it shall issue a forfeiture. Well, I don't know how you can issue the forfeiture on the tenth day if the tenth day they still have a right to file and so that that's, an inconsistency there. So

[Martin LaLonde (Chair)]: I What will line is that? I'm sorry.

[Chief Superior Judge Tom Zonay]: It says if you look at line threes concerning the seizure and that failure to do so within ten days will result in forfeiture. And then there's other language, on page 17. If you go back up to line seven and eight, titled to an animal proceeds pursuant to subsection B shall be forfeited pursuant to ten days after the seizure if the procedures are followed. So you're setting up a ten day for both events. Also. Okay. I the there is a provision later on that talks about someone not having to post security if there is a hardship. This, however, sets up, under line six and seven on page 17. It says, they have to request a hearing and post security within the ten day period, but there's no there's no indication of how they know what the amount of security is. There's no indication of how the court would have proceedings to determine whether there's a hardship within that ten days to waive the security requirement. And so that would need to be fleshed out more on how that's going to operate.

[Martin LaLonde (Chair)]: Right. So so it could be and if we had just a post security of a fixed amount, would that resolve that?

[Chief Superior Judge Tom Zonay]: But they still would have how do we know that they're getting notice of what the fixed amount is?

[Martin LaLonde (Chair)]: That it would be in the notice, presumed. Oh, sorry. I'm just saying that

[Chief Superior Judge Tom Zonay]: It's in the notice. Apologize.

[Martin LaLonde (Chair)]: But it still doesn't give the opportunity to waive the vote. So we still have to figure that out.

[Chief Superior Judge Tom Zonay]: And that, if you look at the current statute, it talks about having preliminary hearing, things like that. Anytime you're tightening up the timelines to try to move things along quicker, it provides an opportunity for those types of notices and those types of steps to be rendered difficult to put in. If you had a preliminary hearing, that's something that could take place at the prelim, if you have a preliminary hearing within X days, twenty one days, there's no question. At that hearing it says okay, look, you gotta post this, you have to do that. And so those are policy decisions for how you wanna structure it, but they would provide some clarity and guidelines for the individuals as opposed to say here's a piece of paper and it tells you everything you need to know. Do it or here's the consequence.

[Martin LaLonde (Chair)]: So question, so the preliminary hearing would be, in your view, wouldn't be the full on hearing on whether forfeiture should happen presumably. Because we say that that's within thirty days.

[Chief Superior Judge Tom Zonay]: Yeah, you have, think of it like a civil suspension for a DWI under title 23 secondtion twelve oh five. You're served the notice, you have a set time to file it, the notice itself tells you when you have a preliminary hearing, yeah, it's within twenty one days, the court then schedule, it's scheduled, the police know what days they can bring them in based upon the arraignment calendar. You come into court on that twenty one days and you could, yes, I've received the paperwork, any discovery, where do we stand? Okay, now we're gonna schedule the final hearing and it's scheduled within forty two days. And this year you're saying it's scheduled within thirty days, but it provides that opportunity to, instead of running, running to try to get somewhere, you get to pause and say, okay, here's what's happening, here's how it's going to happen, and here's what the expectations are, and if they're not met, here's what the consequences are.

[Martin LaLonde (Chair)]: Or that's one option or the other option is to not require the security until they have that hearing on thirty days.

[Chief Superior Judge Tom Zonay]: Yeah.

[Martin LaLonde (Chair)]: I mean, they wanna compress everything.

[Chief Superior Judge Tom Zonay]: Yeah. So that right now under three fifty four subsection e one has the preliminary hearing. And so when you move away from that, there are consequences, if you will.

[Martin LaLonde (Chair)]: So would it be possible, I mean, anything's possible. Would it be practical if we had a preliminary hearing fourteen days and then presumably the forfeiture hearing fourteen days after that. In other words, you're still within the thirty days that you've been hearing from other witnesses being part. That make sense?

[Chief Superior Judge Tom Zonay]: It does. Certainly anytime you have tight timelines like that, there's a consequence. And so we're we're a zero sum game with time for So court if we're told you have to do something, someone's gonna get bumped. And what the legislature is saying when it sends us bills that say, do you have these tight timelines is this is the bill that takes precedence over the other cases. And so if that's the intent, it will be effectuated.

[Martin LaLonde (Chair)]: Although there is the escape clause of the time limits established in the section are not jurisdictional and may be extended by the court for good cause shown.

[Chief Superior Judge Tom Zonay]: I will say that the court scheduling, I think theoretically can be good cause shown, but I don't think that it is our intent to ever say good cause is just that we're busy. In other words, it's gotta be something more than just the court docket because we want to effectuate what the legislature and if it's signed by the governor, what what is intended by the bill. Okay. Okay. Page 19, lines it starts on line six and goes on. It says the shall make findings of fact and conclusions of law and shall issue a final order within five business days after the hearing. So there's, first of all, there's a lot of language in this bill about five business days and we use, that

[Martin LaLonde (Chair)]: take very long the seven days. Yeah. I've already cut you those. Yeah.

[Chief Superior Judge Tom Zonay]: Alright. There we go. That works. But, where it says the court shall make findings of fact and conclusions of law and issue a final order within five business days, Anytime you put in those time limits for what happens, the question is what if it doesn't happen? So what's the consequence? Do we deny the forfeiture if we don't issue it within five days? Is that automatic denial, animals go back or automatic grant and they don't get the animals? In other words, timeline when you put in and you put in something that says you shall do something, there should be a consequence. The absence of that, would note, especially with people with decisions, people are saying, okay, they didn't do it. And if that's the policy the legislature wants to follow, that's fine. But I would suggest that putting artificial timelines on for the issuance of decisions. We've had cases recently down in Broutyboro for instance, where there have been multiple days of hearings. And what you're essentially saying, if you say a judge that you expect decision in five days is that judge has a busy trial coming up that's been scheduled for two weeks and they get this hearing in, do we cancel the medical malpractice trial that's had witnesses coming in from all over the country because the judge needs time to issue the five day decision here? I just think that you don't need to put in those timelines. We understand the importance of timely decisions and especially when you have the financial implications and property rights here.

[Martin LaLonde (Chair)]: So promptly or timely? What's the better one of this particular instance? I know we use both those.

[Chief Superior Judge Tom Zonay]: Promptly, Promptly works. Because timely would indicate that there is actually a timeline. We do have a ninety day rule for the outside for issuance of decisions. That's a policy, but I think promptly would effectuate that. Line we go down now to line page. Line 19 on page 20. The rules of evidence shall apply except hearsay shall be admissible. You then have up above that on line four affidavits of law enforcement officers and that's the current language which allows certain affidavits. That's consistent with, again, civil suspension proceedings. But with civil suspension proceedings, it's very clear that they are summary proceedings and the rules of evidence do not apply. Instead, there are, for instance, rule 80.5 of the civil procedure says, hearings under this subdivision shall be summary proceedings. Evidence is admissible if it is a type commonly relied upon by reasonably prudent persons in the conduct of their affairs and the Vermont rules of evidence are inapplicable except for the rules of privilege. And so when you put in language like this, the question is, is that what the intent is? To go to something in that direction? Which is a summary proceeding or is it to say they really do apply but hearsay is admissible? Is there a reliability requirement?

[Martin LaLonde (Chair)]: At a minimum we were gonna add reliable hearsay, but so is the option to, well, guess do we need to cite to the rule 80.5? Is that the rule you've mentioned?

[Chief Superior Judge Tom Zonay]: That's for civil proceed that rule is specifically for civil suspension for DUI cases.

[Martin LaLonde (Chair)]: Okay. Alright. Fine.

[Chief Superior Judge Tom Zonay]: But I just use that as a reference that how you had the legislature, when you said summary proceedings in 12 o five, how it's been interpreted for the rules of evidence.

[Martin LaLonde (Chair)]: And is this considered a summary proceeding that's of a of a different deal, but, a summary proceeding?

[Chief Superior Judge Tom Zonay]: That's the choice for the legislature. Do you want it to be a summary proceeding?

[Martin LaLonde (Chair)]: Go ahead, Ian. Zone A, could it

[Ian Goodnow (Member)]: be I don't really remember what the language is for like a 12 D motion hearing where the state can rely on affidavits, but it still has the rules of evidence presumably?

[Chief Superior Judge Tom Zonay]: You know what I'm talking about? Well, yeah, 12 D hearings under 12 D, the state has to establish by substantial admissible evidence in the light most favorable to the state that it has each of the elements. But the question there is not whether it's admitted at the time of the hearing so much as it is it's admit if it would be admissible at trial. And the rule specifically provides a state as here can provide can proceed on certain affidavits, but the test is what you've given us here, does it show that it would be admissible at trial? And so in that situation, if there's an officer's affidavit and it contains hearsay, you'd need a statement from the the witness because the witness if the witness came in and testified, it would be admissible at trial. 12 o five j as in John says that hearings under this section shall be summary proceedings, and so legislature has been very clear when you want to have something be a summary proceeding to identify it as such. And so if that's the intent here to to have to not really have the rules of evidence apply but have it in a different direction, you may wish to take a closer look at that.

[Martin LaLonde (Chair)]: Okay.

[Chief Superior Judge Tom Zonay]: And there was the provision. Let me jump back up, I apologize. Trying to work off of some comments in the side electronically as opposed to writing it all out. There is language in here. I can't come across it right now where it says the supreme court has to issue its decision within five days.

[Martin LaLonde (Chair)]: Yeah. That one's gotta change. The PC?

[Chief Superior Judge Tom Zonay]: So I

[Martin LaLonde (Chair)]: Yeah, I can't find a different name. Still get that out. Yeah, it's on page 23, line 13.

[Chief Superior Judge Tom Zonay]: Thank you. I haven't gotten there, that's why. I was thinking for some reason it was up above, but yes. Also, expedited timeline. Are you telling the Supreme Court that if it has everything else that wants this case put ahead of it, we have can imagine a number of matters that

[Martin LaLonde (Chair)]: Well, maybe it would be a little presumption just there. But I

[Chief Superior Judge Tom Zonay]: think the court understands its obligation to to address things in a timely fashion, and I just don't know that you need it is on page 23 lines 12 through 14.

[Martin LaLonde (Chair)]: Yeah. So please apologize to, chief justice rider for our presumptuousness that if he ever has seen that provision.

[Chief Superior Judge Tom Zonay]: I have not sent it to him so I'll let him know that you have sent that message.

[Martin LaLonde (Chair)]: Or not, you can just slut that one. The

[Chief Superior Judge Tom Zonay]: only other comments I had were when you're looking at the security provisions, if you look at page 23, it talks about the court collecting it. I would suggest the court be kept out of the collection business here. The payment should be made directly to the director of animal welfare, whoever someone there. Think of it like child support. The legislature has put in a statute that unless the court finds good cause, the money goes to it goes to OCS in a child support order. OCS takes care of it. The court doesn't get the money coming to us and then send it along. We this should just go right to them. Yeah. But those are the comments I have at this time.

[Martin LaLonde (Chair)]: Martin, can ask one question? Yeah, please.

[Ian Goodnow (Member)]: Hey, judge. So one other question I had was if we're going to go down the preliminary hearing route, So your example of the civil suspension hearing for GDI, it's like, in my experience, civil suspension almost always gets runs. They waive the timelines and they run it with the criminal case. In the language we have here, would they be able to, like, for good cause shown, essentially do the same thing if there was a underlying criminal matter happening at the same time as a civil forfeiture?

[Chief Superior Judge Tom Zonay]: In theory, yes. Court One of the reasons I think moving it out of the criminal division was to afford the ability to move the case forward in a more timely fashion than to have something like that occur, and you're exactly right. Oftentimes, what we see in a civil suspension is, well, there's a criminal, let's tie it all together and this therefore, the civil which is intended to move quicker is gonna be delayed by the criminal. It is very clear that the legislature by putting this in the civil division, separating it at least division wise from the criminal does not want that to happen. And that is the way it would go forward. Does that mean there may not be times a judge may say in certain circumstances that there is good cause for delay? Sir, that can happen, but the inclusion of the language here that talks about essentially immunity and that you cannot use what happens in the civil case is a recognition that it's supposed to keep going. And, so while yes, it theoretically could be a decision by the judge that would be that would not happen unless the state and defense have an opportunity to fully and fairly advise the court of their assent or objection. And when we look at the state, my thought would be that if the court is being asked to delay something, the state through its victims advocates and its work would be able to find out from the animal welfare agencies what is their position. And so all that would come to the court in making that decision. Okay, thank you.

[Martin LaLonde (Chair)]: Any other questions for Judge Zonay? So we'll probably have another revised version of this sometime later next week. We'll give you an opportunity to, if you want to weigh in at that point.

[Chief Superior Judge Tom Zonay]: Thank you.

[Martin LaLonde (Chair)]: We'll certainly try looking at Thursday next week to give our legislative council time to work on this.

[Chief Superior Judge Tom Zonay]: We appreciate it. Well, you. Have a great day, everybody.

[Martin LaLonde (Chair)]: Yeah, thank you very much for your time. Have a good weekend. Thank you.

[Chief Superior Judge Tom Zonay]: You too,

[Martin LaLonde (Chair)]: take care. Attorney McManus, if you could join us. Thank you for being available.

[Kim McManus]: Happy to be here. Good morning, everyone. For the record, Kim McManus, Department of State's Attorneys and Sheriffs. Fortunately, you have heard directly from two state's attorneys who have practiced in this area and they gave me both of their impressions of the first bill as introduced and then the revised version. I only have two comments to add at this point, and then we'll reserve any additional comments for the next draft, as I know you're noodling through a lot of the logistics of this new forfeiture hearing setup. First comment for state attorneys and deputy state attorneys who have been involved in these cases. I would be remiss if I didn't say that an overwhelming comment that I received back when looking at the first draft is that they do not see a distinction between, sexually assaulting an animal, whether it's in front of a child or not. They of course appreciate that in front of a minor, it is a felony, but broadly, and I can't say the entire department because I did not survey the whole department, but of the DSAs and essays that I reached out to, who I know have particular experience in these cases, Their feedback was that sexual conduct with an animal in and of itself should be considered a felony. So I just state that for your consideration. The second one is more of a logistics piece, and it's page 27. At the bottom of page 27 on line 14, And this is regarding any funds that have been deposited in the court, or whether it's the court or animal welfare services, whoever's been holding the money. If there's money remaining, that the money is released upon the disposition of the related criminal charges. And we wanted to point out that once that civil forfeiture hearing process begins, that is then a separate process. And there may be times where the criminal case might be disposed, but the civil forfeiture is still ongoing. So we think there needs to be language there to cover both so that that money is not released too early if the civil forfeiture is not complete.

[Martin LaLonde (Chair)]: So where is that again? Can you I didn't catch that.

[Kim McManus]: 27, lines 14 through 16.

[Martin LaLonde (Chair)]: Page 20. This is one question we, I don't know if you have an opinion on this. We didn't ask, I guess I don't know if judge Zone would have had an opinion on this, but perhaps you all do. That all comes under the cost of care part of this bill. Question, one question is whether we need that at all given the way we're trying to set up the forfeiture component, because that's to try to get the funds that are needed that are subject to cost of care. And in fact, I think there might be some confusion if there's two different ways that we're trying to pay for the cost of the care.

[Kim McManus]: And I'll admit, yes, this is language that I believe was in the first draft without the cost of care piece. So I do wonder whether it was a little hard for me to follow the path of when whether this was needed or not. But if but as it's written right now, it would be confusing, if that money was released solely on the basis of the criminal case being disposed of.

[Martin LaLonde (Chair)]: Yes, if this stays, we need to look at that. Okay.

[Kim McManus]: Those were the only two comments.

[Martin LaLonde (Chair)]: Wow, we waited a long time for us to get that from you, and I apologize for having to reschedule you for that.

[Kim McManus]: No, that is quite all right, and again, when we see the next revision, But we overall, though, a general statement of support for this bill from the department, as you heard from both states attorneys, these are cases that really, they're hard cases for our prosecutors. And they're ones that those who do them are very passionate about them. So they appreciate the efforts being made to try and shorten these windows of time and especially the proactive seizure of the animals upfront, that is greatly appreciated.

[Martin LaLonde (Chair)]: All right, any questions? Okay. I'm not seeing any. Thank you very much for that. And this afternoon we have witnesses, and we're really trying to keep them at ten to fifteen minutes so we can get out of here by about 02:30 ish or a quarter to three on the statute repose