Vermont Legislature SmartTranscripts:

[Rep. Martin LaLonde (Chair, Vermont House Judiciary Committee)]: Hi, welcome to the House Judiciary Committee this Tuesday afternoon, February twenty fourth, and we're continuing our consideration of H. Let me make sure I got the right bill. 40 It's eight forty nine. Thank you very much. And we have a couple witnesses this afternoon, some additional witnesses later this week, but we'll start with Professor Fander. Thank you very much for being available.

[Professor James E. Pfander (Northwestern University Pritzker School of Law)]: It's my pleasure, Chairman LaLonde, and greetings to the members of the House Judiciary Committee. I'm delighted to be here. As the chairman mentioned, my name is Jim Fander, and I've been a professor at Northwestern University Pritzker School of Law for a number of years, specializing in the fields of federal jurisdiction and constitutional remedies. I worked for a time as a consultant to the Judicial Conference of the United States and its committee on federal state jurisdiction and really enjoyed that work. So I'm glad to be back in this role. The decision the decision of the committee with respect to H eight forty nine is a really interesting one, I think. I'm worried that my Internet may be failing.

[Rep. Martin LaLonde (Chair, Vermont House Judiciary Committee)]: Are you guys? We can hear you fine.

[Professor James E. Pfander (Northwestern University Pritzker School of Law)]: Okay. Maybe that's the most important thing then. It's it's an interesting piece of legislation that you guys are considering, and I just thought I would share a couple of thoughts about the way it might operate if it were be if it were to be enacted into law. I won't read my prepared remarks. I'll just treat those as submitted for the record and focus on a couple of the specific issues that you may be interested in as you continue to consider the bill. One of the first questions is who is the proper party to be sued as a defendant in one names under the proposed statute? And as you know, am I still being heard fine because my apparently the video is frozen.

[Rep. Martin LaLonde (Chair, Vermont House Judiciary Committee)]: Yeah. You you you are coming through fine, but what you can do is just turn off the video. Okay. And and that that helps with the bandwidth and and that makes sure that your voice is coming through clear.

[Professor James E. Pfander (Northwestern University Pritzker School of Law)]: Zoom Right. Is spinning now, so I apologize for that. I'm just going to carry on on the assumption that, I'm being heard. And if I get an opportunity to close out my video, I'll certainly do that. One question is, what body of law will apply to claims brought under this statute? The statute itself authorizes suits for both damages and injunctive relief against constitutional violations. And, of course, the focus of this statute is on violations of the federal constitution. And so, the focus will be on whether there is a suit available in law or equity for violation of the federal constitution. And one question is who are the proper parties who might appear as defendants in such an action? I think the answer to that is it's going to be the officer himself or herself and not the governmental entity itself. There's a the really interesting case by the Vermont Supreme Court, Zulu versus state Zulu versus state, I guess, authorizes, an implied right of action against the state itself for certain kinds of constitutional violations under the state constitution. But this statute doesn't, create a liability that runs against the state. The liability runs against the officer instead. And that's very much in keeping with the model of litigation that takes place under 42 USC section nineteen eighty three. The federal statute that authorizes suits against state and local officials for violations of the federal constitution and laws. And so, proceeding on the assumption that because the statute is in some ways modeled on 1983, it seems likely that the proper parties here will be officers and not governmental entities. The next question you might wonder about is what will the liability rule be in such a claim? Can an officer assert a qualified immunity defense to such a claim as one could do under the current terms of Section nineteen eighty three? And the statute doesn't address that issue. It leaves open the question of qualified immunity and therefore would appear to proceed on the assumption that the qualified immunity doctrine is not displaced here. But that's going be a question, obviously, for the courts to resolve as they interpret the statute. One question might be who will bear the ultimate responsibility for the liability that is imposed, if any, under the terms of the statute? And while the liability falls on the officer, the practice of indemnification may well operate in many cases to shift the final burden to the governmental entity that employs the officer rather than to the officer himself or herself. As you likely know, it's very common for state officials and local officials who have been sued in federal court or state court on a Section nineteen eighty three claim to seek and receive indemnifying support from their employer. And so the ultimate burden of the liability is typically shifted to the government and doesn't ultimately rest on the officer himself or herself. You might wonder what constitutes action under color of law because the statute's built on 1983. It seems likely that the color of law interpretations that have developed under 1983 would apply here as well. So the supreme court has decided that officers act under color of law when they take action within the course of in scope of their employment and when they wear the badge of authority even if the Uh-oh.

[Rep. Martin LaLonde (Chair, Vermont House Judiciary Committee)]: Doug Bufferdale. Yeah.

[Rep. Ian Goodnow (Member)]: I'll send him an email.

[Rep. Martin LaLonde (Chair, Vermont House Judiciary Committee)]: Yeah, I'll send him an email. It was just that qualified immunity. I hear that sounds very. November working properly. Would be okay. Okay, you just joined it, Ian. All right, so professor, I think you were just had talked about qualified immunity.

[Professor James E. Pfander (Northwestern University Pritzker School of Law)]: I see. Okay, so my apologies. I rambled on there a bit, but I think the screen may have gone dark and I was invited to then reboot the the Zoom meeting. So I'm glad to be with you all again. So with respect to the liability rule, the statute doesn't say anything specifically about qualified immunity, and so the courts will have to decide whether that doctrine applies to the statute here. Seems likely that it might well do so, given that the statute is modeled on 1983 and 1983 has been interpreted to include such a defense for officials sued under the terms of the statute. I mentioned the possibility of indemnity and the fact that in many instances the individual officer will not face personal liability for violations of the statute because the employer or the governmental entity will pick up the price of any liability that's imposed. So the practice of indemnity is very common both at the state and local governmental level and also at the federal governmental level. For purposes of determining whether something is action under color of state law, the point here would be that any time an officer wears a badge of authority, they're acting under color of state law, even if they act in violation of state law. That's a decision that the Supreme Court of the United States made clear in the Monroe versus Pate case, and it seems likely that that same interpretation would apply under this statute. One really important point about the statute, of course, is that it only incorporates claims under the federal constitution and doesn't impose liability on anyone for violations of the state constitution. And you might wonder what the content of those federal constitutional guarantees are. I think the best source for defining the content of those enforceable federal constitutional rights will be nineteen eighty three litigation. So that focuses our attention on claims under the Fourth Amendment for unreasonable searches and seizures and false arrest and so forth, perhaps claims under the Fourteenth Amendment for violation of the new process clause or equal protection clause, suits under the First Amendment for violations of free speech, the free exercise of religion, freedom of assembly, the right to petition, sues under the Eighth Amendment for cruel and unusual punishment, and under the Fifth Amendment, perhaps for violations of the Takings Clause, although it's very likely that a takings violation addressed to federal actors would likely be transferred to the Federal Court of Claims for determination rather than proceeding as a suit against the officer himself or herself. I'd be happy to talk more about the elements of the claims and the kinds of constitutional rights that might be enforceable under the terms of the statute. One question you might wonder about is what the likely impact on state and local officials will be as a result of the adoption of a statute such as this one. And in some ways, the impact may be relatively slight in the sense that the state and local officials are already subject pursuant to section nineteen eighty three to suits for damages and injunctive relief for violations of the federal constitution. So the largest impact of the statute will will likely be on action taken by federal officials or by individuals acting under color of federal law who are not currently subject to any statute that imposes personal liability on them for constitutional torts. As you all know, the federal government officials are subject to personal liability only under the terms of the so called Bivens doctrine. And under that doctrine, suits are available for a much more circumscribed set of constitutional violations, typically claims under the Fourth Amendment against law enforcement officials and under the Eighth Amendment against prison officials. But in many, many other settings, the Bivens lawsuit is not available to enforce rights against federal officials. So although the statute is even handed in its application to state and local actors on the one hand and to federal government actors on the other and expresses a general view that the people of Vermont would prefer to hold all government officials accountable for violations of the constitution. The major change, if any, that would take place through the adoption of the statute would be to create a statutory right of action for violations of the Constitution committed under color of federal law. I think I'll stop right there in terms of providing a kind of overview of the statute because you probably understand these elements just as well as I do. That'll And give you a chance to focus my attention on the questions you have and perhaps the concerns you have as you contemplate its enactment.

[Rep. Martin LaLonde (Chair, Vermont House Judiciary Committee)]: Great, I'll open it up for questions from the rest of the committee before I I'm waiting to see if there's questions here. So I can ask I'll I'll ask a couple questions. First, so how does how does law compare to what other states are doing as far as Converse section nineteen eighty three laws?

[Professor James E. Pfander (Northwestern University Pritzker School of Law)]: Yeah, we're in the early stages of state consideration of Converse nineteen eighty three statutes, and some contemplated statutes operate much like this one in offering a kind of neutral set of assurances that apply to all government officials with respect to compliance with the federal constitution. I think of these kinds of statutes as statutes that enable the enforcement or the provision of constitutional remedies for violations of the federal constitution by actors at all levels of government. And because it's the constitution that's actually doing the regulating, There's no provision in state law that imposes any additional obligations on the officers or confers any additional rights on individuals aside from those specified in the constitution. And I think that kind of neutral across the board approach to Converse 1983 litigation may be the easiest statute to defend if challenges are raised about the possible preemption of state law as it applies to federal officials. Illinois has adopted, what it calls the Illinois Bivens statute, and I've chatted with folks in the Illinois legislative branch about the statute. It is in particular very interested in identifying the possibility of litigation or authorizing litigation against immigration enforcement. It is even handed in the sense that it applies to both state officials and federal officials involved in immigration enforcement. And so in that sense, it resembles the proposed statute here. The difference, I would say, with the Illinois statute is that it goes further and doesn't just authorize the enforcement of the federal constitution, but also specifies some particular additional obligations and qualifications, that might be seen as actually imposing new regulatory standards for official conduct in those cases. And given the concern with the power of the state to adopt regulations that regulate the federal government and its officialdom directly, the government and the Department of Justice have filed an action to enjoin the enforcement of the Illinois statute on the theory that it is preempted by federal law. So the comparison between the Vermont statute and the Illinois statute is interesting in that way. The Vermont statute doesn't include the additional bells and whistles and therefore would not appear to be subject to a similar challenge.

[Rep. Martin LaLonde (Chair, Vermont House Judiciary Committee)]: Appreciate that. So, coach, has a question, online. Unmute yourself and go ahead, coach. We're waiting for Representative Christie to unmute himself. I have a

[Rep. Karen Dolan (Member)]: question too.

[Rep. Martin LaLonde (Chair, Vermont House Judiciary Committee)]: So I want to go to Ian first while you're working on unmuting yourself. Ian, go ahead.

[Rep. Ian Goodnow (Member)]: Yeah. Is your title professor?

[Professor James E. Pfander (Northwestern University Pritzker School of Law)]: Yeah, you can call me Jim.

[Rep. Martin LaLonde (Chair, Vermont House Judiciary Committee)]: Okay, Jim.

[Rep. Ian Goodnow (Member)]: Jim, thank you. And I laughed earlier because you understand this much better than So I do at you saying that we probably understand it just as well is not true in my sense or in my case. So my question is going to probably expose that even more. You're talking about questions around what constitutional claims could be brought with this proposed statute and that we could look to nineteen eighty three claims under the federal statute as sort of like a guidepost for what we could see brought here. My question is, are there any constitutional claims that a Vermonter could bring with this proposed statute that you couldn't bring in the federal statute other than a federal official violating the federal official point of it? Is there anything else beyond that that you could see where there's a new claim that a vermacher would have?

[Professor James E. Pfander (Northwestern University Pritzker School of Law)]: I think there's a possibility that a court interpreting the statute might interpret the statute to encompass some potential claims that have not already been recognized as a matter of section nineteen eighty three law. But the statute itself doesn't provide any real basis for doing so. It is a broad based statute that confers rights on individuals to seek remedies in law and equity for constitutional violations. But the Supreme Court of the United States has been in the business of interpreting nineteen eighty three and of deciding when, a claim under the constitution is actionable under section nineteen eighty three. So what I think of the court doing in these kinds of cases is defining the elements of the constitutional tort claim, identifying the kinds of constitutional claims that are that are actionable under nineteen eighty three. And so I tried to sketch in my written submission the possibility that a court might, you know, run into a claim like, for example, a Fifth Amendment Miranda rights claim for an improper custodial interrogation without Miranda warnings. And in the Supreme Court's decision, the court concluded that that right was not enforceable under nineteen eighty three, even though it might well be enforceable in a suit to suppress evidence proposed for admission at trial. What happened in the case, of course, is that the individual was acquitted at trial or was otherwise released from criminal liability, and so there was no occasion to address maybe the suppression question in the context of that litigation. So it brought a separate action for damages against the officers responsible for the custodial interrogation. And the Supreme Court said, no, that kind of claim is not actionable under nineteen eighty three. It is, I think, possible that a state court might interpret a state statute more broadly than the Supreme Court of the United States has interpreted a federal statute. So there are interpretive degrees of freedom available to a state court, as it considers, the application and interpretation of a state statute. Obviously, the Vermont Supreme Court will not be bound by the interpretations the Supreme Court of the United States has embedded in the 1983 statute. But I do imagine that the nineteen eighty three precedents will be a very useful source of information about the likely application of House Bill eight forty nine if it were enacted into law.

[Rep. Ian Goodnow (Member)]: What? And one follow-up and so that's very helpful, that clarifies it for me quite a bit. Do you see that as being an issue at all? I wouldn't call it a second bite at the apple as far as settled in the federal Supreme Court versus in a state court, but just the fact that there could be another question brought in a state court that has been discussed on the federal side and that they could be sort of guided by what happened on the federal side. Do you see that as any issue with this with this bill in Vermont or in other states?

[Professor James E. Pfander (Northwestern University Pritzker School of Law)]: I don't really see it as such. I think that the area in which it's most likely to arise is in an action against a federal official. Yeah. And in an action against a federal official, the chances are very good, I think, that the action will either begin in federal court or will be removed to federal court. And the ultimate interpretation of the constitution's application to the conduct of the federal official will likely be in the hands of the US Supreme Court. The Vermont State Supreme Court is likely to have interpretive control over the interpretation of the statute and certainly over the statute's application to the activities of state and local Vermont government officials. But I think its control over that interpretive process is likely to be superseded or qualified in suits against federal officials, which are likely to go forward in federal court and ultimately to be resolved by the Supreme Court of the United States. There is a provision, as I mentioned in my written submission, for the certification of questions of state law to the Vermont Supreme Court. So even when federal courts are wrestling with such a claim, assuming they ever do, they can get help on the interpretation of state law from the Vermont Supreme Court.

[Rep. Ian Goodnow (Member)]: Yeah. Okay, great. Thank you very much. My pleasure.

[Rep. Martin LaLonde (Chair, Vermont House Judiciary Committee)]: So I've had the chance to review your written submission in particular. One of the areas you cover is the chances of this surviving a challenge and really preemption. And it gets pretty technical, so I'm not going to ask you repeat what is well written here because we can look at it there. But if you could just kind of a higher level cover what the challenges to this law we might see and how we might stand as far as risk.

[Professor James E. Pfander (Northwestern University Pritzker School of Law)]: Right. So there are a couple of preemption doctrines that have been mentioned in discussions of Converse nineteen eighty three statutes such as the one that you all are considering. And and those are the ones that I dismissed pretty quickly in my written submission. One's called federal supremacy preemption, which has mostly been applied in or I think always been applied by the Supreme Court of the United States in the criminal context and hasn't been extended to civil actions. And so since this is a civil action contemplated by the statute, the supremacy preemption doctrine would not appear to be applicable. Intergovernmental immunity, the idea that the federal government shouldn't be regulating state official action, except perhaps to enforce the constitution or federal laws, not digging into the details of the regulatory power of the state. Similarly, the state is not supposed to be in the business of regulating the federal government or federal interests. That's a doctrine of intergovernmental immunity that dates back to McCulloch against Maryland. But in this case, it it looks like a nondiscriminatory, even handed statute that doesn't really set out to regulate the federal government so much as to enable the enforcement constitutional regulations that are already in place and applicable to federal government actors. And so if you think it's the constitution that's doing the regulating rather than state law, I think the argument for preemption is pretty weak. The other two arguments that I addressed in my written submission could be described as conflict preemption and Westfall Act preemption. With respect to conflict preemption, the idea would be that if federal law says it's supposed to be this way and Vermont state law says, no, the rule has to be different in this particular way, The conflict between state and federal law might be the basis for a finding of preemption. And that is an argument that might have some purchase, but it depends on why one believes that the Supreme Court of the United States has not expanded Bivens liability to other federal officials. If it were to take the view, if the Supreme Court were to take the view that federal law requires that those officials be immune from any money damages, that would be one thing. And if the state were to subject them to money damages, that would seem to be a conflict that would generate a finding of preemption. But the Supreme Court's decisions refusing to extend the Bivens doctrine are not based on the idea that the officers have an entitlement to freedom from liability. They're based on the idea that the supreme court itself is not the best institution or department of government to fashion a right of action. And so what the supreme court has been saying is we need the legislature to weigh the costs and benefits here rather than doing the right of action creation ourselves as a matter of judge made law. And if that's the basis for the court's decision, then that empowers the legislature to step into the breach and to provide the right of action that the Supreme Court feels it as a matter of separation of powers is not really in a position to provide as a matter of judge made law. So the Supreme Court's turn against the Bivens doctrine is not a body of law that is meant to immunize federal actors from their obligation to comply with the constitution. It's just a judicial diffidence to create a right of action that should be in the court's judgment created by legislators instead of by judges. And so there's no conflict there because the absence of current liability is not driven by a perception of federal immunity. It is instead driven by a sense of judicial incapacity. And so for me, that suggests that the doctrine of conflict preemption is really not in play here either. And then finally, with respect to the Westfall Act, and I have to agree with you, LaLonde, that this is an area that gets us down into the weeds very quickly. But the easiest way to conceptualize the problem of Westfall Act preemption is to think in terms of the savings clause that the Westfall Act included for civil actions for violation of the constitution. Because although the Westfall Act displaces some state tort related liability for federal government officials, the statute expressly preserves the right of individuals to sue federal officers for violations of the constitution. And that savings clause was meant to preserve the existing Bivens liability and also perhaps to preserve any statutory based constitutional liability, that might, develop. And so if you read the language of the statute carefully, it seems to contemplate that the availability of liability under the Federal Tort Claims Act should not be interpreted to foreclose suits for constitutional violations. And I won't go further into those weeds now unless somebody wants to go down there with me.

[Rep. Martin LaLonde (Chair, Vermont House Judiciary Committee)]: I think the weeds are sufficient in the written piece, which I think two or three readings I might understand fully what it was. But no, I appreciate it. But the bottom line is, if I may say it, is that there are arguments in favor of this law that should be upheld. But of course, we have to wait for the courts to see what they think if this is eventually challenged.

[Professor James E. Pfander (Northwestern University Pritzker School of Law)]: I think that's a fair summary. Yes.

[Rep. Martin LaLonde (Chair, Vermont House Judiciary Committee)]: But, so, coach and then Karen. Coach.

[Rep. Kevin "Coach" Christie (Ranking Member)]: Hello there. Good afternoon, everybody.

[Rep. Martin LaLonde (Chair, Vermont House Judiciary Committee)]: Good afternoon, coach. Hey, coach.

[Rep. Kevin "Coach" Christie (Ranking Member)]: James, There's something that came up during our initial discussions around this topic in general and a concern in that. It seems that it would be important within our state law if adopted to ensure that attorneys fees are allowed in these cases because the average Vermonter even with supports from some of the national, you know, entities might not be able to to present, you know, those cases, you know, in any venue, be it the state level or the federal level. Is your understanding that and I know it might seem close to the weeds but is it your understanding that most of the other states have adopted, that within their legislation?

[Professor James E. Pfander (Northwestern University Pritzker School of Law)]: It depends on the statute, I think. There are certainly statutes, and Colorado is an example of one, states in which they have made provision for the recovery of attorney's fees. And that approach, that decision, I think, makes sense for just the reasons you've identified. Civil rights litigants often come into conflict with state and federal government officials and don't have the means to pursue those claims entirely on their own or out of their own pocket. And attorney's fees can be very helpful in supporting litigants in pursuing civil rights redress either under section nineteen eighty three or under a statute such as this one. I think, nineteen eighty three already provides for an award of attorney's attorney's fees to successful litigants in suits brought against state and local officials. And so, there will be attorney's fees available for at least a slice of contemplated claims of the kind captured by h eight forty nine. But the statute itself does not make any provision for an award of attorney's fees. And I think one way to understand and perhaps to defend that legislative choice is to understand that, there is no current provision for an award of attorney's fees in a Bivens action brought against federal officials. And so if you bring that claim under current law against a federal official, you can make a contingency fee contract with your attorney and try to pay your attorney that way. But there's no provision for attorney's fees. It may be that the initial draft of the legislation decided to omit the claim for attorney's fees on the theory that the claim for attorney's fees would operate primarily in suits against federal government officials and in doing so might pose the kind of additional expense for those official defendants that might trigger more concerns from a preemption perspective. So I think it's certainly within the power of the Vermont legislature to provide for attorney's fees and litigation with state and local officials. There may be a greater question about the extent to which that legislative authority would extend to attorney's fees with respect to federal defendants. So that's my best attempt to answer the question. I don't know of other state statutes, but I'm not, I'm not necessarily up to date on all of the attorney's fees provisions that appear in the range of state legislation. I don't know that those provisions extend to suits against federal government officials, but I'm guessing that at least some of them do. It's possible that I can consult the appendix to the Law Review article that I wrote with my friends, Joanna Schwartz and Alex Reinert, and, and try to, give you a better sense of what the attorney fee treatment in those state statutes is. I'm sorry. Don't have it, on the tip of my tongue.

[Rep. Kevin "Coach" Christie (Ranking Member)]: Well well, that's that's appreciated. I know it was, a random thought, but it did come up in discussion. I think it was last week, in relation, you know, to the eight ninety three types of claims. Right. Okay.

[Rep. Martin LaLonde (Chair, Vermont House Judiciary Committee)]: Alright.

[Rep. Kevin "Coach" Christie (Ranking Member)]: Thank you very much.

[Rep. Martin LaLonde (Chair, Vermont House Judiciary Committee)]: Thank you, coach. And care.

[Rep. Karen Dolan (Member)]: Yes. Thank you for being here and sharing this with lots of information. I don't know if I've captured all of it, but I think the chair what I got with the chair shared is that in a nutshell, like, we're kinda walking the line here, it needs to be tested in court is my takeaway of this. But I and I don't have access to the written testimony that you shared, so it might be in there, but are there any language suggestions that you have that would strengthen it?

[Professor James E. Pfander (Northwestern University Pritzker School of Law)]: I don't have any particular suggestions to strengthen the likelihood that the statute would survive a preemption claim. I think it's been well structured to avoid the kinds of obvious preemption claims that might result from a more aggressive form of state regulation. For example, the statute doesn't track nineteen eighty three exactly. It speaks only to violations of the federal constitution, and it doesn't say anything about federal laws. 1983 authorizes the enforcement of certain federal statutes as well. And by omitting any reference to laws, this the draft makes it clear constitution is gonna be doing the regulating here and that the state of Vermont and the legislature of Vermont is not imposing obligations on state or federal officials to comply with any particular federal or state statutes. And so that's a drafting choice that I think does improve the likelihood that the statute would would survive a preemption challenge. And so I think the idea fundamentally of a statute such as this one is that the power to regulate federal officials and to keep federal officials within the boundaries of the law was one that this country managed primarily for about the first hundred and fifty years of its existence through claims based on common law rights of action. And many of those common law suits were brought in state courts. And so when you look back at the history of the nineteenth century, you see common law claims for trespass, common law claims for false imprisonment, other kinds of state and, you know, general common law claims being asserted against federal officials, both in state and in when the jurisdiction existed in federal court. And so the states have always performed an important role in adjudicating claims of government accountability addressed both to state officers and local officers, but also against federal officers. And this kind of statute is meant to reassert, in a sense, the state's regulatory and adjudicatory control over state and federal official action that happens to occur within the within the boundaries of the state. And so for that reason, the reassertion, if you will, of a state regulatory role is a kind of callback to the state regulatory role that existed at the time of the founding and continued right through the nineteenth and much of the twentieth century.

[Rep. Martin LaLonde (Chair, Vermont House Judiciary Committee)]: Thank you. That's helpful.

[Rep. Karen Dolan (Member)]: And I feel like it will be helpful for me to share with my children of why history is important. We revisit it. Thank you.

[Professor James E. Pfander (Northwestern University Pritzker School of Law)]: You're quite welcome.

[Rep. Martin LaLonde (Chair, Vermont House Judiciary Committee)]: Thank you very much, Professor. I really appreciate your availability and the written testimony that this really helps us understand this bill. I really appreciate it. And we will probably I will follow-up or our legislative council will follow-up as far as the treatment of attorney's fees in the other states. You'll probably be hearing Thank from

[Professor James E. Pfander (Northwestern University Pritzker School of Law)]: you. I hope I do. Thank you very much and thanks for all of your time. I appreciate the opportunity.

[Rep. Martin LaLonde (Chair, Vermont House Judiciary Committee)]: Thank you. Thank you very much. And we'll go to Tucker Jones if you could join us. So we have you twice today. This is

[Rep. Ian Goodnow (Member)]: I guess.

[Rep. Martin LaLonde (Chair, Vermont House Judiciary Committee)]: Day for us.

[Tucker Jones (Vermont Department of Public Safety)]: Good to see you all again.

[Rep. Martin LaLonde (Chair, Vermont House Judiciary Committee)]: Thanks for being here.

[Tucker Jones (Vermont Department of Public Safety)]: Yeah. Thank you, Chair LaLonde. Good to see everyone. Tucker Jones with the Department of Public Safety. Before I begin, I'd like to introduce a colleague who I have in the room with me today. It is her second day, Emily McCarthy.

[Rep. Martin LaLonde (Chair, Vermont House Judiciary Committee)]: Welcome. Thank you. Nice to meet you all.

[Tucker Jones (Vermont Department of Public Safety)]: There's a chance you'll see more of her in the future. We'll to kind of make the connection now. So as it relates to this bill, Chair LaLonde, I'm coming at it from the perspective of the Department of Public Safety, primarily focused on any potential impact on state and local officials primarily. And to that end, there is a concern that to the extent this bill or this proposed cause of action could be construed as expanding existing liability in 1983 claims, that that would be opening a separate kettle of fish that I don't think was part of the intent in introducing this. The concern is even if that's not the intent, if that's a possible outcome, that that would be a concern for those who are involved with civil liability defense for public sector employees in Vermont now. Like, for example, our colleagues at the Vermont League of Cities and Towns that manage the Civil Liability Defense Fund and their potential concern about this creating greater exposure that already exists in 1983 claims. It was very helpful with the professor's careful testimony kind of explaining that although it's nice that we've essentially copied and pasted the 1983 language here, it's possible that courts could interpret this in a variety of ways that doesn't necessarily strictly comply with how it's been interpreted in the federal courts for the '19 83 claims. As one example there, and I think even the professor mentioned it, was the defenses and immunities that are available in 1983 claims. And so when I speak with those who are tasked with managing civil liability defense at the state and local level, there is concern here that the bill is silent on that issue. Some of the other bills in other states specifically address that question with language like a specific statutory language. California is in their bill. They have some language. Massachusetts also has some language, something to the effect of any defense under nineteen eighty three. So any defense under 42 USC nineteen eighty three available to a defendant is likewise and to the same extent available in defense of an action brought under this section. That type of language starts to address that. It would also be worth considering a second sentence that basically says the scope of liability is the same as well. Liability as interpreted by the federal courts of law 1983, because it's really the scope of liability and the defense is available for state and local officials. The goal there would be to make the liability exposure here coterminous with liability exposure in the existing 1953 claims. When I spoke with VLCT, it's like language would be helpful. It got them pretty far along in feeling more comfortable about this, but not completely because this is still creating a new cause of action that would expose state and local officials to this new set of questions that now Vermont courts would be grappling with and trying to figure out how to interpret it. And so to the extent that there is any potential for daylight between existing 1983 exposure and this, would be a concern. And it would be something that transcends just the Department of Public Safety. The Department of Public Safety happens to be one public employer with several 100 employees that could see liability out of this. But there's an entire municipal world. There's entire county world, other state agencies. It does affect the enterprise as a whole. Risk management that manages liability for the state, the civil division of the attorney general's office handles the defense of blue suits, etcetera, etcetera. So that's kind of something to keep in mind. And I think there's potentially some language that would allay some of that fear or some of that concern. I might say legitimate concern because as the professor mentioned, there's potential there. Right.

[Rep. Ian Goodnow (Member)]: There any state California and Massachusetts have language around the defenses available under 1983 being put forward to the state statute. Are there any states that have language around liability?

[Tucker Jones (Vermont Department of Public Safety)]: Yeah, I'll have to check whether the language that I pulled was specifically for defenses, and I was particularly focused on the immunities because that is one of the open questions in some of the materials that have been submitted, like Harrison Starks piece, longer form piece, specifically brings up that question of, well, is qualified immunity still available there? And how it could go, that's an open question. That's a concern, right? So that's a primary concern of the defenses, because that would really open up a separate set of issues, which you have liberty to do, but would implicate a lot of different concerns at the state and local level that are perhaps beyond the scope of what you want to

[Rep. Martin LaLonde (Chair, Vermont House Judiciary Committee)]: achieve here. So the intent was not to get your qualified immunity in this. Was the intent along the lines of what you're saying. And that part can be clarified.

[Tucker Jones (Vermont Department of Public Safety)]: And, you know, just to that end, I'm just to might as well mention it. In one of the other submissions here, Protect Democracy United had another multi page submission that they submitted last week. They specifically addressed this question, And they were addressing it from the perspective of potential constitutional attacks on it. And they say here, you know, it's highly likely this is on the fifth page of their six page submission. They said it's highly likely that US Department of Justice would argue that any Vermont law appearing to deny federal officers at least qualified immunity is preempted by the federal interest, etcetera, etcetera. Whatever the merits of that argument, explicitly providing that officers have the same defenses they have in federal section nineteen eighty three cases should sidestep any such constitutional attack. So it's also from that perspective of shoring up the law from a tech. It was my understanding that I

[Rep. Martin LaLonde (Chair, Vermont House Judiciary Committee)]: guess some things we don't want to have this implicit that qualified immunity that how nineteen eighty three is applied federally would apply here, but may as well be clear about that.

[Tucker Jones (Vermont Department of Public Safety)]: Yeah. And I can send you the language that I just recited regarding the defense.

[Rep. Martin LaLonde (Chair, Vermont House Judiciary Committee)]: That'd be great.

[Tucker Jones (Vermont Department of Public Safety)]: Could look as to the scope of liability language if there's any kind of draft language out there that would look good.

[Rep. Martin LaLonde (Chair, Vermont House Judiciary Committee)]: That would be helpful. I appreciate that. Any other questions? Right, we'll see you again shortly. So we'll take a break until two because Erica is gonna be available at 02:00 for our walk through of H six forty two relating to youthful offender pursuits. So thank you.

[Tucker Jones (Vermont Department of Public Safety)]: Thank you. Thank you.