Vermont Legislature SmartTranscripts:

[Rep. Thomas Burditt (Vice Chair)]: Five. Hi. Welcome back

[Rep. Martin LaLonde (Chair)]: to the House Judiciary Committee. Turning our attention to it's a short form bill, but we have language that is on your desks, H eight forty nine. But to start this off, I do need a motion to take up H-eight 49, which is a short form bill.

[Hillary Chittenden (Office of Legislative Counsel)]: So moved.

[Rep. Martin LaLonde (Chair)]: I don't think I need a second, but all in favor, please raise your hand. Okay, so we can go ahead and we can have Hillary do a walk through of the proposed language, which is draft number 1.1. Thank you for being here, Hillary.

[Hillary Chittenden (Office of Legislative Counsel)]: Happy to be here.

[Rep. Martin LaLonde (Chair)]: And just by way of introduction, this is just something that I've been aware of this concept for the past couple months. And really, bottom line is it's a bill that we have constitutional rights. We have some ways to vindicate those constitutional rights. There's a federal law that allows vindication of constitutional rights, which this is modeled after. And we want to look at the possibility of having a state cause of action in addition to that federal cause of action to vindicate constitutional rights. With that, over to you, Hillary. Thank you for being here.

[Hillary Chittenden (Office of Legislative Counsel)]: Happy to be here. For the record, Hillary Chittenden for the Office of Legislative Council. Chair Lavon just did my job for me. That is in

[Rep. Martin LaLonde (Chair)]: a

[Hillary Chittenden (Office of Legislative Counsel)]: nutshell. We'll talk about it in a little bit more detail. I have some slides for those of us who are visual learners. They're very simple. But since this is one of the more abstract legal bills, I thought it'd be useful to have a little bit of a simple reference point. So the plan for this morning, what's a cause of action? What's an existing law? What does H-eight 49 propose doing? What are other states doing or what have they done? And can states do this? So first of all, for those of us who did not go to law school or finished law school or have any interest in law school, What's a cause of action? It's permission to go to court. So to go into court and ask for something, you need some source of law to tell you that you can do it. And that's what a cause of action is. A cause of action generally says who can sue, who can they sue for doing what, and what can that person get. Here, we'll be talking about getting damages. When you see damages here, we're talking about money. So the idea is they compensate someone for harm that happened in the past and they deter future unlawful conduct. So I mentioned you have to have a cause of action from some source of law that can be common law. Generally legislatures create causes of action and occasionally courts will imply cause of action. But that's pretty rare. Any questions about our basic cause of action concept here? Thank you for that.

[Rep. Angela Arsenault (Member)]: Let me just say there are also some who didn't go to law school

[Hillary Chittenden (Office of Legislative Counsel)]: but are practicing attorneys and know all about causation.

[Rep. Angela Arsenault (Member)]: I just hope they don't allow.

[Hillary Chittenden (Office of Legislative Counsel)]: Absolutely. I don't know which way it cuts, whether you get the credit for deciding to still become a lawyer for going law school, maybe a little extra perk there. So as the chair mentioned, what's an existing law? There is not a Vermont state or federal statute that creates cause of action for damages against federal officials for violating The United States Constitution. There is a federal statute called Section nineteen eighty three, and that creates a cause of action for damages against state or local officials for violating the US constitution. And as we'll talk about shortly, H-eight 49 essentially creates a state version of Section nineteen eighty three that also applies to federal officials. So Section nineteen eighty three was passed after the civil war. Congress passed a bunch of Civil Rights Acts, was concerned about state and local officials not abiding by the, that time, recent fourteenth and fifteenth amendments. And that's the origin of that federal statute. So this is not statutory law. Oh, yes. Do you know what that was regarding?

[Rep. Martin LaLonde (Chair)]: What? That original case that caused that.

[Hillary Chittenden (Office of Legislative Counsel)]: That caused section nineteen eighty three? I'm not sure it was sparked by a case. I think it was more generally an observation that state and local officials after the civil war in parts of the country were not keen on abiding by the new fourteenth and fifteenth amendments. And so it general was preemptive response to say, here is a way for people to enforce these constitutional rights that we have recognized.

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

[Hillary Chittenden (Office of Legislative Counsel)]: No, of course, happy for questions throughout. This is not statutory law, but the US Supreme Court has recognized a cause of action for damages against certain federal officials for violations of certain constitutional rights in very narrow specific factual circumstances. This did start with a case called Bivens. So sometimes you'll see reference to Bivens actions, but this is extremely narrow. And it's not clear how long all of these options will exist, a court can overrule prior cases. So there's a lot more there. Happy to answer questions about that later. And I think you'll also have witnesses who can speak to that in more detail, too. So any questions about existing law going forward?

[Rep. Martin LaLonde (Chair)]: Thank you.

[Hillary Chittenden (Office of Legislative Counsel)]: All right, now we've gotten to the bill. So what does H-eight 49 propose doing? Poses creating a cause of action for damages against a state, local or federal official who violates the US constitution. So if we turn to the bill language, I'm on draft 1.1 of the strike ball, which has the actual bill language. This is page one, line eight. This would add a new chapter to title 12 and a new section because this is a very Want someone to be able to find where this is if they go to title 12. And so a new chapter and a new section under it is the easiest way to mark that. But we've done previously in adding new similar sections. So this would add a new chapter, two zero five, called Deparation of Constitutional Rights, and a new section. This is line 10, section 5,797, Civil Action. You'll see subsection A on lines 11 through 19. This is not the most plain language way to say that someone has a cause of action against a state, local or federal official for money damages if that person violates the federal constitution. But the bill uses this language because it is the language of Section nineteen eighty three. So the federal law, yes. So the benefit or the reason to use that language is that it is referencing all of the case law, all of the understandings about the federal law, and just saying that this is a state version of that and that it would apply to federal officials. So there are a couple minor differences to the language in 1983 because of that change, but that's why it is phrased this way. So who can sue? Any citizen of the state of Vermont or other person within the jurisdiction of the state of Vermont. Who can be sued and for doing what. This is line 11, every person who under color of any statute, ordinance, regulation, custom or usage subjects or causes to be subjected any person in Vermont to the deprivation of privileges, rights privileges or immunities secured by the US constitution. Under color basically means when someone is acting in an official capacity. So in our kind of short reference on this slide about actions for damages against state, local or federal officials, under color is saying against those persons when they're acting in an official capacity. So that's where that's coming from. And what can a person bringing an action like this get? They can get damages for past harm. They can also get other. Any questions about that first part of eight forty nine, that subsection A? I think I know, but can you say what equitable relief would be about the injections? Yes. So equitable relief broadly encompasses anything a court wants to fashion. Generally, it refers to either an injunction or declaratory relief. Declaratory relief is a court declaring what the law is or what the person is entitled to. It's just an announcement. And an injunction either orders someone to do something or to stop doing something. And all of those kinds of relief would be available here. Existing law provides some more avenues to seek those kinds of things than to get damages under current law against state or federal officials. But both would be available here. Both are available under section nineteen eighty three. So again, the way it is drafted intends to reference everything about section nineteen eighty three.

[Rep. Martin LaLonde (Chair)]: So this would cover the way for noncitizens of the state of Vermont?

[Hillary Chittenden (Office of Legislative Counsel)]: As long as they are a person within the jurisdiction of the state of Vermont, which I understand to be someone located here and who can be subject to suit in the state, who can file suit in the state. I'm happy to look further. The citizen language is from the federal statute. So I'm not certain that it intends to attach anything different with respect to Vermont than resident. But I'm happy to look a little bit more at the case log and see if there's more there. Yep. Yeah. Sure.

[Rep. Martin LaLonde (Chair)]: Okay. I just got a confused look on my face. Don't we already have language that's already covering this? I mean, it just looks like it's going into more detail of, again, language we already have or laws we already have. What am I missing?

[Hillary Chittenden (Office of Legislative Counsel)]: So currently, if you, as a resident of the state of Vermont, if a federal official violates your constitutional rights, so this could be the kinds of constitutional rights that are often litigated under Section nineteen eighty three, are excessive force by law enforcement. You can bring First Amendment claims under Section nineteen eighty three. But for those kinds of violations, if that happens to you as a resident of the state, you cannot go to court and ask if that happens to you caused by a federal official, you cannot go to court and ask for damages to compensate you for the harm that happened to you. So you could go to federal court and ask for damages for harm caused by state or local officials who have violated your constitutional rights. But this would allow you to go to state court initially and seek damages for those kinds of harms.

[Rep. Martin LaLonde (Chair)]: State, local, or federal. State, local, or federal.

[Hillary Chittenden (Office of Legislative Counsel)]: It is still likely to end up in federal court for a variety of reasons, but happy to answer more questions about some of those details along the way.

[Rep. Martin LaLonde (Chair)]: Yeah, thank you. Was going to wait for witnesses, I think.

[Rep. Ian Goodnow (Member)]: Yeah. So the other thing it would allow is for someone who's got a 1983 claim against a state official to bring that in Vermont and not have to bring it in federal court. Correct. They can bring that in state court. My only other question, and I don't know this very well, there is cost shifting for attorney's fees for certain 83 claims, I think. Would you also get this in this one if you brought them correctly?

[Hillary Chittenden (Office of Legislative Counsel)]: Policy decision for the committee as draft. So section nineteen eighty three does not specifically itself reference attorneys fees or cost shipping. There's a separate federal statute that says that attorneys fees are available under other federal statutes, one of which is Section nineteen eighty three. So as drafted, this is silent as to attorneys fees. Generally, silence about attorneys fees means they are not available. Whether to include them is a policy decision for the committee.

[Rep. Martin LaLonde (Chair)]: Is equal access to justice? Isn't that a federal law? No.

[Rep. Thomas Burditt (Vice Chair)]: I'm gonna ask same questions that have been asked and make you repeat

[Rep. Martin LaLonde (Chair)]: the same answers in a sense.

[Rep. Thomas Burditt (Vice Chair)]: So we have a federal law. Mhmm. And and and this language for Vermont, 95%, I'll use that percentage, goes with federal law, except for tweets we need to make it applicable to government officials, Vermont state government officials. Is that pretty close?

[Hillary Chittenden (Office of Legislative Counsel)]: One tweet at the end to make it applicable to federal government officials. Okay. So the federal law covers state and local officials, not federal officials.

[Rep. Thomas Burditt (Vice Chair)]: The federal law doesn't cover federal. Okay. Surprise, not surprise.

[Hillary Chittenden (Office of Legislative Counsel)]: I think I mentioned the origins of the federal law section nineteen eighty three to perhaps offer an explanation as to why they were focused on state and local officials. This was post civil war. It was originally called the Ku Klux Klan Act. That's what they were concerned about at the time, and perhaps a reason why they referred only to state and local officials. But this law would create a federal cause of action you have to bring in federal court. But if a state creates a state cause of action, you can bring it in state court. And it would allow you to bring the same kinds of claims as the federal law in state court against state and local officials. But the new thing that it would cover would be that you could bring those claims against federal officials. I'm glad you asked the question. That's probably the clearest explanation I've given so far. So you gave me the chance to And tee that

[Rep. Martin LaLonde (Chair)]: there will probably at some point, but I may be jumping ahead of myself of being a challenge of whether we've been actively managing that. And maybe that's what you're about to talk.

[Hillary Chittenden (Office of Legislative Counsel)]: We are definitely headed there. Other questions. I guess before we get there, just one note. Are other states doing this? Do they have laws like this? Are they considering bills like this? So some states have had laws on the books for a while that do a version of this. They create causes of action for interfering or attempting to interfere with state or federal constitutional rights by using threats, intimidation, or coercion. So in a sense, they're narrower because the constitutional violation has to be using threats, intimidation, or coercion, just like a more specific factual scenario. It's going to not be all constitutional violations. But in another way, some of them are broader because they refer to both the federal and the state constitution. And some of them are not limited to officials. Some of them require that it be someone acting under color of law, which means acting in their official capacity. But some of the laws refer to anyone, whether or not acting in their official capacity. So those are slightly

[Rep. Martin LaLonde (Chair)]: You said some of the laws

[Rep. Thomas Burditt (Vice Chair)]: referred to anyone, which would be anybody walking down the street? Correct. Thought it was only government that could restrict constitutional rights? Yes, no?

[Hillary Chittenden (Office of Legislative Counsel)]: Ideally, the government's not restricting constitutional rights. I have not looked at the cases under some of those state laws about who they're actually bringing them against. But as written, they're not limited to people acting in their official capacity. So you could have a private person who, I guess, anyway, I'm not sure exactly the factual scenario that's covered. You're pointing out that it seems odd that a private person could violate someone's constitutional rights. So I'm happy to look for an example of when that happens under those laws. Okay,

[Rep. Martin LaLonde (Chair)]: thank you.

[Hillary Chittenden (Office of Legislative Counsel)]: Yeah. No, it's a good question. This is a big area of law. I have done my best to do an overview for you, but there's lots that I would have to follow-up. So happy to do that. That law is different than this one. So just saying that those existing laws are a version of this, but they're not written exactly like this one, including for that reason. This one is under

[Rep. Thomas Burditt (Vice Chair)]: color You know what, of I don't need an answer to that I really don't if it's not in our law.

[Hillary Chittenden (Office of Legislative Counsel)]: This law is under color of law, which means in official capacity. But I just did want to reference that some states have been doing a version of this for a while. Other states are considering bills that are similar to H-eight 49. So California and New York, a couple of others, but California and New York's bills are more similar. There are some differences, which I'm happy to talk about, but they are considering doing very similar things to what H-eight 49 would do.

[Rep. Angela Arsenault (Member)]: Okay. Thank you. It's always helpful to see, are we the first doing this or are we kind of following others? And so for those that have been existing, realizing it's not as similar to what we have in front of us, those have been upheld.

[Hillary Chittenden (Office of Legislative Counsel)]: I'm happy to look more closely at challenges to those laws. There are certainly, I know of one case with respect to New Jersey where a certain application of the law was not upheld, perhaps for some of the reasons that we've talked about. So I'm happy to look at more of the existing laws, but none of them were challenged on grounds that would apply to this one. I mentioned that California and New York are considering bills. Illinois passed a version of this last year, but theirs is meaningfully different for a couple of reasons. One of which is it is limited to actions against people conducting civil immigration enforcement. So very specific and narrow, which raises some challenges. It also is based on violations of both the federal constitution and the Illinois constitution, which if you apply violations of the state constitution against federal officials can also raise concerns. Both of those parts of the Illinois bill are not applicable here. But Illinois passed that in December, been signed into law in December. And The United States has filed suit challenging it. There hasn't been any progress in the case since then, but keep an

[Rep. Martin LaLonde (Chair)]: eye on it.

[Hillary Chittenden (Office of Legislative Counsel)]: So all of that leading to the can states do this question. It's an unsettled question of law with respect to federal officials. There are two likely issues that would come up. The first, I think you talked about with Sophie earlier this week with respect to S-two zero eight. This is intergovernmental immunity. State laws can't directly regulate or discriminate against the federal government Because H-eight 49 applies to state, local, federal officials, it doesn't raise concerns about discriminating against the federal government. I think a federal official or the federal government could argue that it directly regulates the federal government. I think in the Illinois case, they are raising a version of that argument. Although the Illinois law also arguably, they've argued it discriminates in a way that they could not argue here. The direct regulation argument is something along the lines of, if you are creating liability against federal officials, then you risk chilling their conduct in a way that changes their conduct. And if you are trying to change their conduct, then you are directly regulating it. That's the kind of argument that the federal government has made in Illinois, and that's the kind of intergovernmental immunity argument they would raise. I think the argument on the other side, which is fairly strong, is that a law like this is not trying to place state law over federal law. Our big concern with intergovernmental immunity is the supremacy clause, is federal law supreme. This is really lifting up the federal constitution. So it's consistent there. And it's not creating new rights or responsibilities. It's just requiring that federal officials and state and local officials abide by the constitution. And to the extent that the federal government were to try to argue, they'd have to argue that they have some legitimate federal government goal or objective that this law interferes with. But because this law only prohibits unconstitutional conduct, there's no way that the federal government could argue that they have a legitimate federal interest in unconstitutional conduct happening. So those are the arguments on both sides. As always, coming from Legis Council, I am not a court. I cannot predict what a court will say. I can offer both of those arguments and say that there is certainly a merit to the argument defending a bill like this. And I think you'll hear from further witnesses about the relative risk or strength of some of those arguments. Before I go into federal preemption, nobody's favorite except for maybe me. Any questions about the intergovernmental immunity piece? I do think you'll have chances to ask more questions of other witnesses, and I'm also happy to follow-up on other questions if you have them. So federal preemption just asks whether Congress in passing laws expressly says or suggests that they don't want states to do something. So if Congress in a statute says, you can only use our statute, that means states can't do something in that area. Or if the way Congress structured a statute suggests that they only want the federal law to operate in a space, then the state can't do something. So here there are two federal statutes that touch on the topic of when you sue a federal official for damages. There's the Federal Tort Claims Act, which is if you sue a federal official for negligence or another regular tort, basically The US steps in as a defendant and they would pay if that were the outcome of the suit. The Westfall Act is a separate federal statute. And it says that if you're going to sue a federal employee for something covered under the Federal Tort Claims Act, that's the only way you can do it. You can't have another cause of action that tries to get damages if it's something covered by the Federal Tort Claims Act. Basically says, if you're in Federal Tort Claims Act territory, you have to stay there, only way to do it. The Westfall Act does have an exception, which is it doesn't apply for actions brought for violations of The US constitution. So there is an argument that I guess I would say the arguments on both sides are that if federal official If this were to pass and a federal official were sued, a federal official could say, this falls under the Federal Tort Claims Act. The US needs to step in and litigate it. It comes into this area. The argument on the other side would be that a constitutional violation is not the kind of regular tort that the Federal Tort Claims Act covers. So we're not even in Federal Tort Claims Act area to begin with. And even if we were, that this kind of suit would be an action brought for a violation of the US constitution. And so it falls outside of these statutes and would be allowed. Very plain language simplified version of preemption, but the takeaway is that this could be an issue that comes up. There are arguments to justify what the bill would be doing. There are scholars and jurists who have commented on both sides of how to interpret those statutes. It's not a settled question of law. We don't have a clear answer. And I think that there will also be I understand that there may be future opportunities to ask other witnesses more about this question to be extent folks are interested. But any questions on the can states do this question?

[Rep. Martin LaLonde (Chair)]: Not at this point. I'm sure we'll

[Rep. Angela Arsenault (Member)]: All right.

[Hillary Chittenden (Office of Legislative Counsel)]: That is the close of my walkthrough of 08:49. Happy to answer any other questions the committee has about Bill Fext or anything that I've mentioned to.

[Rep. Thomas Burditt (Vice Chair)]: As far as states do this, yeah, we could do it.

[Hillary Chittenden (Office of Legislative Counsel)]: Fair to question the way that

[Rep. Martin LaLonde (Chair)]: I framed What happens down the road is another We can pass the law. Right. Well, Yeah. Will it be upheld? Right.

[Rep. Thomas Burditt (Vice Chair)]: I mean, I gotta believe since it's against

[Rep. Martin LaLonde (Chair)]: I don't know that would. I guess it would be a gun. Yes. I would anticipate there would be a challenge if the events is it'd be worth it. So Ian? Just one question. There

[Rep. Ian Goodnow (Member)]: are requirements to bring suit in federal court for a civil action like this that don't exist in Vermont's court, correct?

[Hillary Chittenden (Office of Legislative Counsel)]: What kinds of things do you think you can do?

[Rep. Ian Goodnow (Member)]: Like damage of Yeah, I don't know what the right word is for it, but do you know what I'm

[Hillary Chittenden (Office of Legislative Counsel)]: The one that I'm familiar with is that so to be in federal court, you either have to have like a federal claim, federal question, or you have citizens of different states with a minimum damages cap. This gets into some interesting questions about what kinds of court this could end up in. Someone bringing a cause of action under this could choose to be in state court. If it's against a state or local official, it would likely stay in state court. If it were against a federal official, there's a federal statute that allows federal officials to remove cases from state court into federal court. So it's likely that it would end up in federal court in that case. It's also possible that a plaintiff could try to bring a case under this state cause of action directly into federal court because it implicates a federal constitutional violation, which is a federal question on the face of the claim, which is the kind of thing you can bring directly into federal court. So I'm not sure if that quite answers your question.

[Rep. Ian Goodnow (Member)]: No, it does. It does. Yeah, it's helpful. I think I'm just thinking about the question around the federal officials and how that will work is really interesting. The other half of this that I see impacting Vermont is just that there are a lot of 83 claims filed in federal court here. And this would give opportunities for people to file essentially an A3 claim in Vermont court against Vermont officials. And that's interesting. And I'm just trying to understand how that would impact those type of claims. If there's anything that I can like.

[Hillary Chittenden (Office of Legislative Counsel)]: Yeah, I think that might be a question for other witnesses. I do not regularly litigate Section nineteen eighty three claims. So I'm less able to immediately answer what the differences would be in having that kind of suit available in a federal court versus in a state court. But I think

[Rep. Angela Arsenault (Member)]: a very interesting question. It's a good question. Great.

[Rep. Martin LaLonde (Chair)]: Thank you. What questions are we? Not seeing any. So Emily or Falco testify.

[Rep. Ian Goodnow (Member)]: I think we're going to do both. Okay.

[Falko Schilling (ACLU of Vermont, Advocacy Director)]: I'll have Emily start, then I'm happy

[Rep. Martin LaLonde (Chair)]: to follow-up and separate. Emily's online. So we'll just have the the two witnesses from ACLU and then we're gonna adjourn for the day so people can get on the road. So we'll just plug plug away through to lunch.

[Rep. Kevin “Coach” Christie (Ranking Member)]: Mister chair?

[Rep. Martin LaLonde (Chair)]: Yeah. Yes. Folks.

[Rep. Kevin “Coach” Christie (Ranking Member)]: I had a quick question for alleged counsel but I guess we already.

[Rep. Martin LaLonde (Chair)]: No. No. Let's go. Go ahead.

[Rep. Angela Arsenault (Member)]: You can ask a question.

[Rep. Kevin “Coach” Christie (Ranking Member)]: In relation to legal fees, as you mentioned, would we just amend this bill to include the language that you suggested?

[Hillary Chittenden (Office of Legislative Counsel)]: The committee policy question for the committee, whether

[Rep. Martin LaLonde (Chair)]: to

[Hillary Chittenden (Office of Legislative Counsel)]: provide for attorney's fees, if the committee made that choice, then yes, the bill would include you would have language specifically saying a court may award a jury's death, essentially, or whatever other additional requirements or authorizations you want it to meet. We talked about the basic parts of the clause of action. It can specify a lot of other things about what can happen with that kind of case. So if the committee is interested in pursuing any of those, it's a policy decision. But I can certainly help with language and students.

[Rep. Kevin “Coach” Christie (Ranking Member)]: Okay, thank you. Thank you very much, because it when I think about what the chair said earlier in reference to our mission, one of our missions or part of our mission as a committee is to ensure that Vermonters have access to justice. And so the key piece to access to justice is access to an attorney. You know, so I think you see my thinking there.

[Rep. Martin LaLonde (Chair)]: No, I appreciate that, Coach. So we'll certainly hear from witnesses on that and we'll have further discussion as well. So, Deputy White joins us there as well. I know

[Rep. Ian Goodnow (Member)]: we may lose some of

[Rep. Martin LaLonde (Chair)]: our members who have to head further south and we're concerned about the weather. Know Tom has to leave sooner. But that's the wonders of that these are life on there. People You're making fun of the What did he do? I think he made fun of the boomer, I think.

[Rep. Thomas Burditt (Vice Chair)]: Thank you for being a

[Rep. Martin LaLonde (Chair)]: very good friend. Thank you, Emily. So Yeah,

[Falko Schilling (ACLU of Vermont, Advocacy Director)]: thank you so much for the opportunity to testify today. Getting back for the third time this week and been able to spend a lot of good time together. For the record, my name is Falko Schilling, and I'm the Advocacy Director for the American Civil Liberties Union of Vermont. I'll let my colleague introduce herself, but I think what we're gonna do today is Emily's gonna go over a broader overview of why the ACLU supports both this proposal and other proposals like this around the country. Some of the landscape, I think Ledge Council did an excellent job covering a lot of that ground. So some of this might be duplicative. And then I'm gonna speak a little bit to the language itself and then be happy to take some questions. Alright.

[Rep. Martin LaLonde (Chair)]: Over to you, Emily then.

[Emily Dindyle (ACLU National, Senior Policy Counsel)]: Hi, everyone. Thanks, Falco. I'm Emily Dindyle. I'm a senior policy counsel at the ACLU National Office. Thank you so much for having me here today. And I agree with Falco that Ledge Council overview was dead on and covered a lot of what I was going to touch on. So I don't want to be too repetitive. I know that we are at limited time here. So, I guess I'll just say that it is the ACLU's position. We agree with Leggett Council that states absolutely have the authority to do this, that there are certain constitutional considerations, you know, to take into consideration when drafting. But eight forty nine as drafted, in our opinion, is is constitutionally sound and should be upheld in light of those, constitutional consideration.

[Rep. Martin LaLonde (Chair)]: Before you before you I I apologize, Emily. Before you go on, I wanna just make clear, if you're in a position, you can advocate more, legislative council certainly laid out the arguments on both sides. You're welcome, and you just said that you think this will prevail constitutionally. I just want to make sure that we understand the difference from where we're coming from with legislative council. So advocate away is what we're asking for.

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

[Rep. Martin LaLonde (Chair)]: Nonpartisan yeah. Nonpartisan so go ahead. I'm sorry.

[Emily Dindyle (ACLU National, Senior Policy Counsel)]: I know. I appreciate that. I appreciate that. I think that an important thing that she said is that there's very little precedent. So, of course, it's hard to say one way or another. But our position would be that the only reasons this would be constitutionally infirm would be if it would violate some provision of the supremacy clause, namely that there's a conflict between a state law and a federal law, and then the supremacy clause would require a favorability of the federal law. In this case, our opinion is that there is no conflict. That's because the goal of a 19 of a Converse nineteen eighty three statute is to fill a gap that doesn't exist, meaning there's no conflict because there's no federal law that currently would allow a private individual to sue a federal official for a a violation of the US constitution. So our position is that there's no conflict there. The other concern on the supremacy clause issue is the whether the state is discriminating against the federal government, and that's where this concept of ensuring that the law applies to all government officials equally. That is how you would avoid that argument. And so some of these other statutes that have been challenged or raised certain concerns, such as the Illinois Bivens Act, the language there, for instance, was specific to civil immigration enforcement. So the federal government's argument that that discriminates against the federal government would be stronger there, in our opinion, because civil immigration enforcement is squarely within federal law, for the most part, as opposed to the way that eight forty nine is drafted to include anyone under the color of the law, federal, state, local. That is, in our opinion, how you overcome and withstand the constitutional issue of discrimination. I'll pause there. Does that answer your question on the issue of the constitutional claims?

[Rep. Martin LaLonde (Chair)]: I think so. I mean, unless you wanna dive deep into preemption as well. And you don't need to if you don't want to. But

[Emily Dindyle (ACLU National, Senior Policy Counsel)]: No. I I think one of the things that we are coming from as the ACLU is really addressing this gap and the issue of there being a gap in enforceability of constitutional rights that we want states to fill. And so I can talk a little bit more about the gap. I think Legis Council did a great job. Basically, the problem is that right now for private individuals to sue a federal official for a violation of the US constitution has largely been left to federal law. Either there's a there's the nineteen eighty three statutory provision that is limited to state and local officials, As someone aptly called out, it's a federal law that does not allow federal officials to be accountable. And then that gap was somewhat addressed in by the Supreme Court in 1971. That was in the Bivens lawsuit, where the court found that there is a constitutional right for individuals to sue federal law enforcement or federal officials for violations of The US constitution. However, that opinion was never codified. So we still don't have a federal law that is analogous to 1983 that would allow private individuals to sue federal officials for violations of the constitution. Also, that Bivens claim has been watered down to the point where, in practice, it simply is insufficient. And so our position at the ACLU and a lot of our coalition partners working on this is that this is a significant gap that affects people's civil rights protections because without an enforcement mechanism, without a remedy, there's really no right. And that this isn't about creating a new right. This is about ensuring that there's some kind of way to enforce that and that it's completely appropriate and frankly necessary for states to do that. And that we just want to encourage states to do that in a way that we're here to advise you on our opinion on how to do that in a way that is constitutional. And, again, I believe the draft as written would meet that meet those concerns. And and the only thing that I would add is that there's even more states than I think we are now at 13 states who have bills on this of varying degrees, but that the ACLU across the country is supporting for this reason, that there's a gap to fill. And we I just wanna if it's helpful, the other states are Colorado, Georgia, Maryland, New Mexico, Washington state, and Wisconsin, at least. And we are hearing rumblings that other states are preparing to file as well.

[Rep. Martin LaLonde (Chair)]: Yeah. Great. Questions for I'm not seeing any right now. So we'll unless if there's anything else, Emily, we'll go to Falco.

[Emily Dindyle (ACLU National, Senior Policy Counsel)]: Alright. I'll pass to Falco. Thank you very much for having

[Hillary Chittenden (Office of Legislative Counsel)]: me.

[Rep. Martin LaLonde (Chair)]: Yeah. Thank you for being here.

[Falko Schilling (ACLU of Vermont, Advocacy Director)]: So thank you. First, before I dive in, I do wanna note that you might see that there's more folks around the room today than maybe some other times. Today was the ACLU Vermont's lobby day, coincidentally, we scheduled this months ago and it happened to be today. So there's a number of folks who are joining here and I think watching down in Room 11 who are just interested in this testimony and all the really good work that has been happening in this committee. So I just wanted to let you know who the folks around the room where the name tags are.

[Rep. Martin LaLonde (Chair)]: Before you start, I mean, we did this when we had only four, but I'm gonna do it again. If you could go around the room and just introduce yourself. It's where you're from in the state. It's that's from Moybridge.

[Rep. Angela Arsenault (Member)]: My name is from New Camp. So Great. Thank you. Wendy Wilkinson from St. Alden's. Jessica Neary from Linden.

[Hillary Chittenden (Office of Legislative Counsel)]: Betty Keller from St. Johnsbury.

[Rep. Angela Arsenault (Member)]: Kathy Mann Spanden. Betty Katz from Linden. Ian Meghan Garrison, Missouri.

[Hillary Chittenden (Office of Legislative Counsel)]: Annica McCann, St. Johnsbury. Malay Rowland, Burlington.

[Rep. Martin LaLonde (Chair)]: Thomas Rowland, Burlington.

[Rep. Angela Arsenault (Member)]: Ian Moore, St. Johnsbury. George Priscilla Stable. Steve Wolf,

[Rep. Martin LaLonde (Chair)]: Dave Rutland. Thank you all for being here, and you're always welcome to come and sit in on things or just watch us on, how do you say it, YouTube? YouTube.

[Rep. Angela Arsenault (Member)]: Fun, Falco, this is the inaugural day of the ACLLURP Day.

[Falko Schilling (ACLU of Vermont, Advocacy Director)]: First Same time next

[Rep. Martin LaLonde (Chair)]: year. You yourself wrong. Thank you so much.

[Rep. Ian Goodnow (Member)]: Do you want to cheer?

[Rep. Martin LaLonde (Chair)]: I appreciate that. And I'm terrible at I'm Martin LaLonde, a representative from South Burlington, and I've been on this committee for twelve years and been chairing it for the last three. So last six. Six. No, three, four. That's how we work. It's on my board for you. Alright. Okay. Kenneth Goslant, I'm the state rep from Norfield and Berlin.

[Rep. Kenneth Goslant (Clerk)]: Been here eight years all in this committee. Nice to have you here.

[Rep. Angela Arsenault (Member)]: Hi, everyone. I'm Angela Arsenault, a representative from Williston in my fourth year and fourth year on

[Hillary Chittenden (Office of Legislative Counsel)]: this committee.

[Rep. Karen Dolan (Member)]: Hi, everybody. Karen Dolan. I'm a representative from Essex Junction.

[Rep. Thomas Oliver (Member)]: Good afternoon. I'm Thomas Oliver from Sheldon, Swan, and it's my fourth year.

[Rep. Ian Goodnow (Member)]: My name is Ian Goodnow. I represent part of Brattleboro, and I am the junior junior member

[Falko Schilling (ACLU of Vermont, Advocacy Director)]: of the Windham Union.

[Rep. Angela Arsenault (Member)]: So I've only been, this is my second half of

[Rep. Ian Goodnow (Member)]: my first biennium. I've only been

[Rep. Martin LaLonde (Chair)]: doing My for a few name is Thomas Burditt from West Rutland Vice Chair here in

[Rep. Thomas Burditt (Vice Chair)]: the House Judiciary and my sixteenth year in the building and my twelfth year in the committee.

[Rep. Martin LaLonde (Chair)]: Wow. And Coach, could you introduce yourself and then Alicia? We have two members who are on Zoom as well. Or Alicia, if Coach is not available right now.

[Rep. Alicia Malay (Member)]: Yeah. No, I'm here. Hi. Alicia Malay from Pittsburgh, represent Pittsburgh and Proctor.

[Rep. Martin LaLonde (Chair)]: Yeah. And if coach might not be there right now. So back over to you, Philip, if I could.

[Falko Schilling (ACLU of Vermont, Advocacy Director)]: So I really appreciate the committee taking this bill up, especially as a short form. And I would echo everything that you've heard from Legis Council and from my colleague earlier. We are strongly in support of the language that's included in HH49, I think, in terms of the strategies used for drafting it. We saw this language last night, and we're very, very happy to see the choices that were made in going into this draft, really modeling it after section nineteen eighty three. This is also limited to state claims, or limited to federal constitutional claims, which I think avoids some of the other concerns that folks have raised in other places. And I think just high level, the goal of this, as we said, is to address the gap. It's not to create new liability for state and local officials, but to address that gap where there's federal officials who might engage in unconstitutional conduct. Then there's not recourse for the citizens of the state of Vermont to be able to adequately bring those claims forward. And that's something we want to have under state law so folks can dedicate those claims. And I think we talked a little bit about this in talking about bill S209 earlier when we were talking about some of the regulation on sensitive locations. In particular, we were talking about folks trying to exercise, for instance, their Fourth Amendment rights, and that that is one of the strongest protections folks have. But as we've also heard that there's no rights without remedies, and if there's violations without the ability to actually get recourse or damages or equitable relief, that seriously undermines folks' constitutional rights and their ability to vindicate them. So that's why we're strongly supportive of this piece of legislation. We think at this moment in time, it makes a lot of sense, and there's some urgency around it. So my only two changes that I would hope the committee might consider with this bill, First is what Coach brought up in terms of the addition of attorney's fees. It's correct that this is modeled very directly off of section nineteen eighty three with the addition of federal officials, but we would suggest, you know, importing similar language to what currently exists under nineteen eighty three for attorneys fees, which is generally reasonable, reasonable attorneys fees and litigation costs. So that's something that we would suggest. To Coach's point that he made, it's hard to access justice when you can't access an attorney. This allows folks to take these cases on when there might be a violation and the opportunity to bring that forward. So that's something that we would suggest in the spirit of trying to mirror how 1983 operates currently and importing those same rights within to state law. The only other changes, I think we advocate for making the effective date on passage, just because this is the longer we go without folks having the ability to vindicate their constitutional rights, the more likelihood that there are constitutional violations where folks don't have the ability to seek recourse. So that's the only other change we would make to the bill as introduced. And so long and the short of it, we're very supportive of this piece of legislation, happy to answer more questions in terms of how things might operate. Think Ledge Council did an excellent job, but we'll leave it there for now. Just know that there's a wide range of folks across the country who are interested in looking into this. You have a number of different pieces of testimony that were submitted on your website that I hope folks might take a look at if there are more questions, including from folks at Popular Democracy Institute for Justice, scholars out in the University of Wisconsin who have looked into this and spent a lot of time thinking about it. So I hope folks can review those. We're also happy to answer any more questions on the stand.

[Rep. Martin LaLonde (Chair)]: Yeah. Not question for you, Falco, but on the effective date, would we be able to do it on passage? And I'm thinking, is there anybody that has to in the state government, the judicial system or whatever, that would have to do the education to bring people up? Yeah. We should need. Yeah. We've got so many other witnesses. Unanswerable right now.

[Rep. Ian Goodnow (Member)]: Yeah. There more types of damages and claims that can be made under a federal 83 claim currently beyond just attorney's fees? There's

[Falko Schilling (ACLU of Vermont, Advocacy Director)]: reasonable litigation to us, attorney's fees, but then, of course, there is damages for injuries incurred. Emily, I don't know if you wanna speak more to this or you have this

[Rep. Martin LaLonde (Chair)]: off the top of

[Falko Schilling (ACLU of Vermont, Advocacy Director)]: my head, but think you need to be able to prove those monetary damages. So those would be things like damage to property, intentional infliction, emotional distress, but you have to able to demonstrate those real money damages to collect. Emily, did I get that right? Is there anything you wanna add?

[Rep. Martin LaLonde (Chair)]: You brought

[Emily Dindyle (ACLU National, Senior Policy Counsel)]: that right. There's compensatory damages are available under nineteen eighty three, I'm pretty sure.

[Rep. Ian Goodnow (Member)]: And is there just one other question. Are there types of damages available for particular types of claims brought under '83. So, like a discriminatory claim. If we're going to add that in here, just want to make sure that we're capturing all the different ways that 83 is used now.

[Falko Schilling (ACLU of Vermont, Advocacy Director)]: Yeah, I think, Emily, you can speak to this as well. But generally, I if there are I don't have that off the top of head, I can look into case law, but I think the idea is that that case law would then be very informative in state courts and how they would apply it in a similar manner if there are differences in the ability to recover. Statutorily, I think we could look to I forget the statutory site off the top of my head just in terms of announcing the ability of attorney's fees. But I think modeling that off of because it's not within 1980 I think it's 1980. Yeah, I forget off the top my head. But I think modeling that off of what currently exists so we have as much cohesion between what exists in federal law and what we'd be putting in state law, that would be the avenue that we would suggest.

[Rep. Martin LaLonde (Chair)]: Okay. Thank you.

[Emily Dindyle (ACLU National, Senior Policy Counsel)]: I agree. And I'll just say we'll follow-up. I think we should follow-up with more specifics on that to confirm.

[Rep. Martin LaLonde (Chair)]: Again, I know that Hillary mentioned this, but by following the language in the federal law, we're also going to be taking advantage that it's not brand new for courts when they take it out. There's going be a lot of precedent that will help us understand how this would be applied.

[Falko Schilling (ACLU of Vermont, Advocacy Director)]: Yeah, I think that's correct. And what you heard from legislative counsel is when these suits proceed, it's most likely that they would then proceed in state courts, which have the history and practice of hearing Then federal court. Then federal court. Starting state court, then probably most likely be removed to a federal court. And that's where those claims are heard now. And they would be basing how those claims proceed off existing jurisprudence, which we have not seen this play out, but that's most likely that would happen. And I'll also once again defer, Emily, if you have anything else you want to add.

[Rep. Martin LaLonde (Chair)]: Can you just explain for us because I mean, that was mentioned a little bit before, but Maybe this is getting into the weeds too much, but I'm going take chance of what removal means. If you start a case in state court, why would it get removed to federal court?

[Falko Schilling (ACLU of Vermont, Advocacy Director)]: Because my understanding is that existing statutes allow federal officials to say, based on this type of claim, we think the correct venue is within federal court, and you can make that petition. And then based on existing rules and statutes, there would be the ability to remove it to a different court because that would be the appropriate venue for that claim to be heard.

[Rep. Martin LaLonde (Chair)]: The court would still be looking at the state law in the application. Right.

[Rep. Thomas Burditt (Vice Chair)]: So would the lawyers be being paid if I bring a case forward and I lose, would my lawyer fees be paid?

[Falko Schilling (ACLU of Vermont, Advocacy Director)]: My understanding is no. But, Emily, you can bet. No.

[Rep. Thomas Burditt (Vice Chair)]: And and that's good. I I would have issues with it if if they were paid. Somebody who who was definitely discriminated against or their constitutional rights were, you know, infringed upon, don't have as much problem. But if you lose your case and it's it's deemed that, yeah,

[Rep. Martin LaLonde (Chair)]: nothing happened to you, think it should be up to you to cover this call.

[Hillary Chittenden (Office of Legislative Counsel)]: Generally referred to the prevailing plaintiff, so the court has to decide that the plaintiff was successful in some way to then award attorney's fees. Oh, okay.

[Rep. Martin LaLonde (Chair)]: Thank you. Sadly, I had to defend some of those way back when at the Department of Justice, which means I had lost cases, but I'll put them somewhere. It's funny to me that.

[Rep. Thomas Burditt (Vice Chair)]: If you had never lost any case, I would say

[Rep. Martin LaLonde (Chair)]: you've only done one case. Any other questions for Philip? So thank you very much for the testimony. Thank And we'll be having more testimony next week. On Tuesday, we have Professor Fander from Northwest Pittsburgh Law School going to be in and Tucker Jones from the BPS. And at some point, Julio Thompson, and we'll figure out Judge Thornay will bring in as well. So we'll have testimony during the week next week. We are adjourned until 01:00 on Tuesday next week. Everybody drive safe

[Rep. Thomas Burditt (Vice Chair)]: and