Vermont Legislature SmartTranscripts:

[Rep. Martin LaLonde (Chair)]: Alright, welcome to the House Judiciary Committee this Tuesday afternoon, March thirty first. And we have a few things we're gonna look at today. We're gonna start with S-two 18, a high level drive by. This is a bill that we dealt with a bit last year, and it's changed some. And it's just being run by us and had to do with chloride or salt build. Also not on the agenda, but H657, we need to close the loop on that bill that we described by a week and a half or so ago. We'll do that second, and then we're gonna go to the open land improvement fraud that we do. Those two things. So over to you, Legislative Counsel O'Grady.

[Michael O'Grady, Office of Legislative Counsel]: Good afternoon. This is Michael O'Grady with Legislative Counsel. I am gonna share my screen and put up on the screen s two eighteen as it passed the senate. You can find this on house environment's web page. So as the chair just referenced, you looked at most of this bill last year in h 86. It was also s 29. It was also added to h three nineteen, but it ultimately did not pass both bodies, even though each body passed it independently in the different bills. So what this program does is it is trying to address an issue of chloride contamination of the state's waters. As I think you have all heard over your time here, the state has to meet water quality standards. It has to go out every three years and determine whether or not state waters are meeting water quality standards. If they are not, the water has to be designated as impaired, and there has to be a plan that's adopted to clean up those waters. Currently, there are nine waters that are impaired due to chloride, mostly in Chittenden County, but not just in Chittenden County. The the latest is in Franklin County. And what would a plan do? What would the state require in order to bring water into to compliance with the water quality standards? Well, it would regulate how chloride, how salt is applied. Because when you look at the sources of chloride in the impaired waters, it is almost entirely from the application of salt for chloride chloride products for winter, deicing and for summer dust control. And it's municipal roads, state roads, private impervious surfaces that are all contributors of that chloride. So what this program s two eighteen does, it establishes a voluntary program at the Agency of Natural Resources for the certification of commercial salt applicators who will be instructed and certified in best management practices that will regulate or control the use of chloride salt for winter de icing summer dust control with the caveat that it is intended to maintain safety while reducing the contribution of chloride to the state's water. When a commercial applicator and and also a municipal applicator is trained, they receive a legal benefit. And that legal benefit last year in age 86 was immunity from suit. It just said a commercial applicator applying according to the best management practices is immune from suit if the alleged harm is from failure to de ice or other issue from snow or and the applicator was applying according to the best management practices. So there were advocates who did not support the immunity from liability. Instead, they proposed an affirmative defense instead of immunity from liability. And that is what was in the senate passed version, and that is what is in s two eighteen as passed this year. And you can see that affirmative defense language, and the chair asked me to just focus on that component of the bill that is the judiciary's judiciary committee's jurisdiction. So that certified commercial applicator or the owner occupant or lessee of the real property maintained by that certified applicator have an affirmative defense against the claim for damages resulting from a hazard caused by snow or ice if the claimed damages were caused solely by snow or ice, and any failure to delay in removing or mitigating the hazard is the result of that applicator's implementation of the BMPs. It does not apply if the commercial applicator was grossly negligent or reckless in their disregard of the hazard. And in order to assert that affirmative defense, the applicator has to maintain records of their practices, including the rate, type and rate of application of salt and salt alternatives, dates of treatment, and the weather conditions for each event requiring deicing. So what is the difference between immunity from liability and an affirmative defense?

[Matthew Valerio, Vermont Defender General]: That was my question. Took it from me. So

[Michael O'Grady, Office of Legislative Counsel]: it's generally what who has the burden and how you access or assert either. So immunity from liability can preclude a plaintiff from bringing an action. It's then on the plaintiff to show that the immunity from liability does not apply, either like a blanket immunity, such as legislators have for their speech on the floor, or qualified immunity, which was what you provided last year in h eighty six. You said they shall be immune if those conditions were met. Plaintiff would have to show that those conditions aren't met in order to be able to access the court and to seek a remedy. And the advocates were concerned that that would freeze those persons that were potentially harmed out of a remedy or out of the courts entirely. What an affirmative defense does, it is something that the defendant argues at the pleading stage, usually the initial pleading stage when there is a complaint brought against them. In their response to that complaint, in their pleading, they say, yes. That happened. Don't argue that they were a commercial applicator. They don't argue that they that they applied salt or solve alternatives. They argue that they are free from liability because they met the conditions of that affirmative defense. So why is that a difference? Well, it allows the plaintiff into court. It shifts the burden from the plaintiff to the defendant, and the defendant has to show based on the facts that they qualify for the affirmative defense. So the plaintiff is not frozen out of a remedy, is not basically excluded from a court, the the burden shifts to the defendant to show that they qualify for that affirmative defense, and they are not liable. So that is the key change from what was in h eighty six last year for the purposes of this committee's jurisdiction. Burdittenden shifts from the plaintiff to the defendant. The plaintiff still has that opportunity to seek a remedy. The defendant still has that opportunity to not be liable if they can show all the conditions that are required for the affirmative defense.

[Unknown Member (House Judiciary)]: So I'm I'm an applicator, and I make the decision not to be certified. Where does that leave me in the in the lawsuit? Or else, I guess?

[Michael O'Grady, Office of Legislative Counsel]: So you don't have that affirmative defense. You won't be able to say if there's a claim brought against you that that you are not liable. Then it will be on the facts, and it will be whether or not you know, it'll depend on the situation, the condition, and the plaintiff will show that you were negligent. And so that's where the benefit is to the certified applicator. They just have to show that they met the conditions and they will be immune from that negligence claim. You, the noncertified applicator, won't be immune from that negligence claim. And so it's a lower bar. The plaintiff will only have to show you had a duty of care, and you failed that duty of care.

[Unknown Member (House Judiciary)]: What if I kept records as a noncertified Well, that

[Michael O'Grady, Office of Legislative Counsel]: that will all go to whether or not you you breached your duty of care. And you would then it will be very fact based. It will be the plaintiff will bring their facts. You'll show your facts and whether or not there was duty, whether the duty was breached, whether there were damages.

[Unknown Member (House Judiciary)]: So I'd have more to prove if it didn't be employed. In a sense, I guess I'd have more to prove than a certified applicator, because certified applicator is going to have, say, pitch for a number of three or four criteria. As long as I meet those criteria, I'm good. Right. Exactly.

[Rep. Martin LaLonde (Chair)]: Does that care? We have any numbers on

[Unknown Member (House Judiciary)]: how many, maybe we went over five, or privately owned applicators are

[Unknown Member (House Judiciary)]: judgments fought against them or lawsuits against them?

[Michael O'Grady, Office of Legislative Counsel]: I don't have that number, and that would be pretty hard to find considering there's not a rate recording of that at the superior court level. I can tell you how many applicators have been certified in New Hampshire. It's over 700 that are certified annually in New Hampshire. It started out there were only, like, five in the first year. Now over 700 get certified. And they do so because there was a case that was brought in New Hampshire against an applicator. That applicator had all of the records. They showed that that in New Hampshire, it's immunity from liability. It's not an affirmative defense. So that that defendant showed that they met all the conditions for the immunity from liability, and court dismissed the case. They also determined from video recording that the plaintiff didn't injure themselves in the parking lot or on the sidewalk. The plaintiff tried to cross over a vegetated, bushy area, and that's where she fell. And the the applicator had no duty to maintain that. So that would probably even if they had been noncertified, they probably wouldn't have been negative. But they showed the conditions meeting the eligibility for the immunity from liability, and they they won't.

[Unknown Member (House Judiciary)]: This is coming back to me, so thanks for this. I'm like, okay. We're next for some of these conversations. I understand the affirmative defense piece of it and that it's being part of being voluntary. Yes. This is something like an incentive you could call it. If you do do it, you get this. Maybe I don't use the word incentive, but it's something you get if you choose to do it. Yes. My question is, what what are the barriers doing? Is there a cost? Is there a fee? Like, just trying to understand. Is it very accessible?

[Michael O'Grady, Office of Legislative Counsel]: Well, one I

[Unknown Member (House Judiciary)]: don't know if that gets into it in here.

[Michael O'Grady, Office of Legislative Counsel]: What the bill does is requires ANR to set up that program and to provide the training. They can do that training either through an ANR employee or through a contractor. In either event, they're gonna need money. And with most of the bills that are creating new appropriations, there's a contingent funding funding clause that says ANR is not required to do this if they don't get the funding for it. So it did not it was not funded in the house proposal of the appropriations bill because you hadn't seen this bill. This bill hadn't been in front of the house when you looked at the big bill last week. But now there will be that discussion in the senate because the senate did look at it. The senate put it on its list of things to review in their version of the big bill, and you will have that opportunity in in conference to reconcile whether or not to provide funding for the program or not.

[Unknown Member (House Judiciary)]: Okay. That's not included in the bill as is?

[Michael O'Grady, Office of Legislative Counsel]: It is not included that. The bill does contemplate that this program will be a fee based program, that the applicators applying for certification will have to pay a fee for certification, but that specific fee is not currently in the bill. So, yep, there's gonna be a recommendation back to you next year on what that fee would be.

[Unknown Member (House Judiciary)]: From that group doing the work to come up

[Michael O'Grady, Office of Legislative Counsel]: with the program. They're gonna come up with the program. They're gonna determine whether or not they're gonna use an ANR or or they're they're gonna contract that, determine what the fee will be at that point.

[Unknown Member (House Judiciary)]: And we you're saying it comes back to us. We would weigh in if we, like, we ultimately approve it or not?

[Michael O'Grady, Office of Legislative Counsel]: Yes. As as you probably know, your Ways and Means Committee really likes to control the fees.

[Rep. Martin LaLonde (Chair)]: And

[Michael O'Grady, Office of Legislative Counsel]: so there's this report back to you all, the general assembly, with a recommended fee to be charged either by the state or by a third party for certification. And then you would have to enact what that were authorized.

[Unknown Member (House Judiciary)]: Thank you. I'm just trying to understand. I know our piece is the affirmative defense, but I'm just trying to understand how people would be able to access it and get it.

[Michael O'Grady, Office of Legislative Counsel]: So there is another part of the bill that's that's very similar, but you should also be aware aware of because it goes to a larger question or issue that's been before this I know that's been before this committee. And this it's the same affirmative defense that's offered to municipal salt applicators. They would not be going through an ANR certification program. They would be trained annually by AOT because annually road workers are offered training from AOT in what's called the Vermont Local Roads curriculum. The bill would require the Vermont Local Roads curriculum to include the BMPs for chloride application, salt and salt alternatives. And then once that municipal salt applicator goes through that training, and they would have to do it annually, they would get that affirmative defense. You'd see page 10 lines.

[Rep. Martin LaLonde (Chair)]: Go through it annually?

[Michael O'Grady, Office of Legislative Counsel]: They do go through it annually. State? Yeah. No. The the municipal Municipal. Right. Municipal. The state already has a program that they run, and they also have the the state torts claims act, which limits their liability. And so they basically, AOT said that this is not necessary for them because they already have their own standards. They already have their own controls, and they already have that limited liability. But the municipalities, as you know, have been looking for a broader immunity. This does not give out broad immunity. It's just the same affirmative defense that the commercial applicator would get. Same. They have to be trained. The damages were caused solely by snow or ice. Any failure or delay in removing or mitigating hazardous result of the implementations of those BMPs. And they have to maintain records in order to assert the affirmative defense.

[Unknown Member (House Judiciary)]: Maybe I missed it. But What if there was some sort of issue behind beyond our control about people being able to get assault or tan and being able to do the job correctly?

[Michael O'Grady, Office of Legislative Counsel]: So it's it's it's not about whether or not you're applying. It's how you apply. So if you don't have a salt or salt alternative to apply, you don't get the affirmative defense because you're not you can't argue that the hazard was caused solely by snow or ice, and you were applying the BMPs because you weren't applying BMPs because that you didn't have the defense. If there's an if there's an You have to

[Unknown Member (House Judiciary)]: stretch it because you don't have enough.

[Michael O'Grady, Office of Legislative Counsel]: Right. But that in that case, most likely, the liability is gonna be with the property owner and not with the applicator. The applicator can't apply because they don't have it. The liability would be property. The property owner gets the same affirmative defense if their applicator that they've contracted with is meeting all the conditions of the affirmative defense. So there's no salt or sand or salt alternative to apply. There is no affirmative defense because you can't argue that you're complying with the BNP.

[Unknown Member (House Judiciary)]: So so this sets up the whole program, and it's takes effect upon passage, but nobody can sign up for it.

[Michael O'Grady, Office of Legislative Counsel]: Well, ANR has to adopt the rule for

[Unknown Member (House Judiciary)]: the program. Fee yet. Pardon? But there's no fee established yet? There's no

[Michael O'Grady, Office of Legislative Counsel]: fee established yet. And and ANR has time in order to adopt the rules because as you all know, rule making can take up to a year. Yeah. And so they have

[Unknown Member (House Judiciary)]: So if if they need all that time, what why would it take effect on passage?

[Rep. Martin LaLonde (Chair)]: Not

[Michael O'Grady, Office of Legislative Counsel]: There are a couple of things in the bill that you want to take effect on passage, and and that is, first, giving ANR their rulemaking authority on passage so that they can go right away to rulemaking it, as fast as possible instead of waiting until July or some other future date. There's also a report back on, saltpiles, municipal saltpiles in the state, whether they're covered, whether they're in proximity to a water, whether that they should be moved or covered, and what the cost of that would be. There is no mandate to cover. There is no mandate to move. It's just about identifying those saltpiles, municipal saltpiles, that potentially pose a problem and potentially could that problem could be solved through cover or movement. ANR largely has that information already, and to give them the ability to put that together quickly and get it to you by December is one of the reasons why it's effective on passage as well.

[Rep. Martin LaLonde (Chair)]: Any other questions from us? So I guess a question for me is, are there additional individuals we need to hear from? We want to hear from, Admiral Prasin or somebody from one of leagues in cities in town. I mean, it's similar to what we took up last year. I think you explained the difference. It's affirmative action instead of immunity. What do you think?

[Unknown Member (House Judiciary)]: The league, I think the league. Okay, all right.

[Rep. Martin LaLonde (Chair)]: I think pretty easy. Yeah, we'll get into precedent when we get this week. I'll let Chair Sheldon know that we'll go So I think we're supposed to have Hillary for a walk through of 183. So we'll do one hundred eighty three and take testimony from Matt Valeria on S-one Hundred 83, And then we'll turn to six fifty seven.

[Unknown Member (House Judiciary)]: Goodnight. Thank Stay on

[Rep. Martin LaLonde (Chair)]: line for a couple. Stay on the line. So we know if a person is on the whole? We're going to get it. We'll pass it out. It's neither one of them, right? We're getting That's 33 and, yeah, age six fifty seven.

[Matthew Valerio, Vermont Defender General]: Thank you.

[Unknown Member (House Judiciary)]: I just printed the amendment out. Out there.

[Rep. Martin LaLonde (Chair)]: So let's do one yeah. No. We'll put in a few for a second. So we can hear from Matt first. You wanna join us, Matt? I mean, it's not a super complicated feeling that you can get your viewpoint and then we'll have Hillary give us the walkthrough. Oh, or I guess not. So we'll have Hillary give us the walkthrough.

[Unknown Member (House Judiciary)]: Matt, you gotta hold us again.

[Rep. Martin LaLonde (Chair)]: What? Do you want to start, Matt, or do you want to do it go after the walk through?

[Matthew Valerio, Vermont Defender General]: Doesn't matter to me. This is about as simple as it gets, so it won't be long.

[Rep. Martin LaLonde (Chair)]: Yeah. Think the walk through is not going be too long either. We'll have

[Unknown Member (House Judiciary)]: to do You'll be disappointed if we have a lot of questions.

[Rep. Martin LaLonde (Chair)]: Kick in back when he's down.

[Hilary Chittenden, Office of Legislative Counsel]: Sorry. He's from a walk through of Senate institutions.

[Rep. Martin LaLonde (Chair)]: We're still here. Not a problem. No, this is ours to deal with. Yeah, this is a little private bias. We have jurisdiction in this one.

[Hilary Chittenden, Office of Legislative Counsel]: All right. For the record, Hillary Chittenden, for the Office of Legislative Counsel. S-one 183, talking about home and land improvement fraud. It's really making two changes to existing law. The first is clarifying one of the elements of the current crime to avoid a constitutional issue. Happy to talk more about that, but that's the first change that S-one 183 makes. And second, it clarifies that the statute applies to contracts and change orders. Change orders are basically a contract modification. They're their own contract. But if you enter into a contract and then later for house improvements and you later say, can you also fix the roof on my garage? That might be a change order that changes the kind of work that you're doing under a home improvement or a land improvement contract. So that's the preview, the two changes. I will go ahead and dive into the laboratory language. So this is 183. The first substantive changes are on page two. Subsection A are just the existing definitions in statute, no changes there. Subsection B is where we have the first substance of the elements of the crime of home improvement or land improvement fraud. So two things to say about home improvement fraud. You guys have a qualifying contract, first thing. That's basically what the first part of subsection B sets. It can be written or oral, but it has to be a contract for home or land improvement. And there are some amount requirements. So it has to be at least a thousand dollars if it's a contract with a single owner or if it's for contracts with multiple owners, that'd be a minimum value of 2,500. The second part of it, which is where the meat of the changes come, are that the contractor has to knowingly commit fraud in entering into the contract. The statute outlines a couple of kinds of fraudulent conduct. The changes that are being made are to the first one. So this statute was passed in 2003 and there have been some changes since then. And the challenge is that the change in 2015 removed some language and changed some language so that instead of criminalizing fraud and entering into the contract, the language read as if it were criminalizing breach of contract. So breach of contract, you say you're gonna do something, you don't finish it, you don't do it. A homeowner can pursue a civil suit for a remedy, but that in and of itself is not a crime. States really can't criminalize breach of contract, but they can criminalize fraud and entering into a contract. So the change that S-one 183 makes, this is line 13. Well, there's a change on line seven and then 13 through, 21 is that, this essentially returns to or uses most of the language in the pre 2015 version of the statute. So it goes from the 2015 amendment language, which said if the person fails to perform the contract and doesn't make a refund or finish the job when the owner asks them to, then they can be criminally liable. That's criminalizing breach of contract. And there are two recent trial court level decisions in Vermont that have determined that that is a violation of the thirteenth Amendment. We'll talk more about that in a second. So what S-one 183 does in making this change is that it replaces that language that these trial court decisions have found poses a constitutional issue. And it returns to the language in the pre-twenty fifteen amendment. So a person commits the offense of home improvement or land improvement fraud when they knowingly enter into a contract. The key here is knowingly entering into the contract. You have to have knowledge at the time you're making the contract that you are not going to perform it. The key holding of the Supreme Court precedents that these Vermont trial court decisions were relying on for the thirteenth Amendment problem was that you have to show, you have to require that a prosecutor show intent to defraud at the time of contract. You can't just criminalize someone from not completing a contract. The reason for that is if you are criminalizing breach of contract, you're effectively imposing criminal punishment or requiring someone to work under threat of criminal punishment, which the Supreme Court decisions have found violates the thirteenth Amendment's prohibition against indentured servitude. Those decisions are older. They were really looking at post civil war laws that effectively advanced money to former enslaved persons and then threatened them with criminal punishment for not staying and working off a debt. Home improvement and land improvement fraud are a different context, but there's a New York and a Wisconsin decision in the '80s or the '90s applying that same logic. And these two trial court decisions have found the same. The Vermont Supreme Court has not weighed in yet. One of the trial court decisions is on appeal. So there will be a ruling forthcoming at some point. But S one eighty three avoids a potential issue by adding knowingly on line seven to require knowledge at the time of entering into the contract. And by replacing lines 13 through 20 with the language on 20 to 21, returns to criminalizing fraud and entering into the contract instead of breaching the contract. So as amended, the statute would read that the person has to knowingly promise performance that the person does not intend to perform or knows will not be performed in whole or in part. That's the first big change. Any questions about that before I

[Unknown Member (House Judiciary)]: touch on the second one? Questions?

[Rep. Martin LaLonde (Chair)]: No, it seems straightforward. Thank you.

[Hilary Chittenden, Office of Legislative Counsel]: All right. The second one shows up in several places. So anytime that the statute refers to a contract or agreement, it now also refers to a change order. So as I mentioned, a change order is a kind of contract. It's like an additional or modification of a contract when you decide to modify whatever home or land improvement you originally contracted for. Adding change order clarifies that intent to defraud at the time you enter into a change order is also grounds for criminal liability under home or land improvement fraud. So you'll see that on page two, line eight, page two, line 10, and page three, lines two, six, and seven. F one eighty three adds change order where the statute refers to contract or agreement. That's my short and sweet version of a walkthrough. Happy to talk more about anything I've mentioned or answer any questions.

[Rep. Angela Arsenault (Member)]: I have just a quick question. Think that in page two, line seven, you said that it was important to add knowingly there. I'm wondering why if it's also included on line 12. Not suggesting taking out, just wondering what the thinking was there.

[Hilary Chittenden, Office of Legislative Counsel]: It's a great question. The trial court decisions in interpreting the existing statute to find a thirteenth Amendment issue relied on a couple of things, but one of them was the fact that the twenty fifteen amendments were moved knowingly where it is now added back in. I think there's an argument that as amended, these two knowingly are doing pretty similar work, right? That you knowingly enter into a contract and you knowingly promise performance that you do not intend to perform. That if you're promising performance that is also, if you're knowingly promising performance that is at the time you are entering into the contract. So I think that first knowingly is an abundance of caution belt and suspenders. You really have to require intent to defraud at the time that you're entering into the contract. But it's a fair point and a question I have also asked myself. I just read

[Rep. Angela Arsenault (Member)]: that on line seven. I read that knowingly as that is applying to the entering into a contract.

[Hilary Chittenden, Office of Legislative Counsel]: I guess one other way to answer it is that adding it both on line seven and on line 12 for purposes of the things that follow, is that you are very clearly attaching knowingly center to both elements. You're attaching it to the requirement that there be a contract. You're knowingly entering into a contract. You know that a contract will result and you will be bound by what you promised to do. And you're also knowingly promising to do something that you don't intend to finish or impart. So I think abundance of caution, but I appreciate the question. Any

[Rep. Martin LaLonde (Chair)]: other questions for her? It's relatively straightforward. I don't know that Representative JoAnn Brianna was right on voting against this because of criminalizing the contract. I won't admit this. I've already admitted this to JoAnn.

[Rep. Angela Arsenault (Member)]: I will say that I was happy to learn that it was the 2015 change that actually caused the problem.

[Rep. Martin LaLonde (Chair)]: But we did it another. No, it's our fault to be extending this to land improvement as well. Right. We had the opportunity

[Unknown Member (House Judiciary)]: to

[Rep. Martin LaLonde (Chair)]: Yeah,

[Unknown Member (House Judiciary)]: it's through it. But

[Hilary Chittenden, Office of Legislative Counsel]: the initial issues were not introduced in

[Unknown Member (House Judiciary)]: 2024. We just extended that.

[Rep. Martin LaLonde (Chair)]: All right, so thank you, Matt Valeria for joining us. Next. Matt, thank you for being here. No problem.

[Matthew Valerio, Vermont Defender General]: I don't really need to look at this. I'm not the layer of defender general. Mhmm. I was here in 2003 when the original version was passed, and I was here in 2015 when the next version was passed. And I said in 2015 exactly what is being discussed now, in addition to some other reasons why, traditionally, the criminal law does not, create strict liability crimes, for civil violations, civil penalties for breach of contract. This is and I'm sure he's smiling down on me at this point. This is one of the senator Sears bills that we refer to as, What happened to Dick Sears' mother ends up in a bill? And there's some number of these, including telecommunication fraud and mail. So there's there's a group of these sort of things where elderly people are taken advantage of. And the they ended up in in bills like this. And in 2015, when this came back, what what part of what the issue was was that the attorney general's office had difficulty proving cases of intentional fraud. But fraud is an intentional crime under common law and under the model penal code, and it was under our current statutory scheme. So, you know, there are multiple ways to look at this issue. One is that and and you also should have some understanding of how these crimes are these this activity, which gave rise to a crime, comes up in business. People, contractors, will routinely go into jobs fully intending on completing the job, but they have multiple jobs going on. Somewhere, they might be a subcontractor or the like, and somewhere along the way, somebody doesn't pay them. And because they're working off of credit lines and the like, sometimes the banks will revoke a credit line, and now they don't have the cash available to finish the job that they had bid originally, and they don't have the means to remedy the situation after the fact. Now they went into the deal fully intending to complete the job, but circumstances beyond their control after the fact change, and now they don't have the ability to complete the job, either from a materials point of view or from being able to pay workers who work for them. What the the bill did in 2015, which became law, is effectively say, we don't care about outside factors that give rise to your breach. Just the fact that you have a breach and you cannot fix it results in a potential criminal penalty. You also have contractors out there who are, to be frank, incompetent, and they don't know how to bid their jobs. They don't understand their expenses. They think they can get it done cheaper than they can, and they really want the job. And then they get in the middle of it and realize they can't finish. Now that is negligence, but it's typically not criminal. But what, again, the bill in 15 that became law did is said, we don't really care what your reasons are. We're making this a crime. The courts, they were looking at these, and I predicted this at the time, were not going to allow people to be forced to work when they had no ability to comply, number one, or and people are gonna end up kind of on this list of, you know, when you get a criminal conviction for for contractor fraud, where traditionally, the common law and model penal code doesn't treat this activity as criminal. So, you know, it's some number of years later, now over a decade after it was originally passed, but you know, I guess, you know, I hate to say, Well, I told you so, but I told you so.

[Rep. Martin LaLonde (Chair)]: You love to say it a lot.

[Matthew Valerio, Vermont Defender General]: Yeah, well, you know. So the thing is, you gotta stick around as long as I've been here for the last twenty five years to be able to do it. If I wasn't here at the time, I, you know, probably I'd be sitting in my living room saying, I told them so. But I get to do it here, and so that's kind of interesting. In any event, you know, this isn't a bill to me that does anything to kind of go back to what traditional common law and criminal law identifies as criminal activity, where people are intending to effectively steal from somebody, intending to they have bad intent going into their into the deal that they take somebody's money and run away with it. Those things are not easy to prove, but crimes should not be easy to prove. There's another system of justice, the civil justice system, that deals with breaches of contract, and that's not always satisfactory. It does put a burden on the the homeowner or landowner to be diligent in understanding, you know, maybe you need a bond, maybe you need to make sure that there's a credit line available, maybe you need to research your contractor and not just believe the person who shows up at your door and says, hey. I can do your siding for x amount of dollars. And it sounds like such a good deal. Why wouldn't you do it? But if you the bill, as it's written, and as it kind of reverting to what it was, previously, recognizes the realities of business, and recognizes the tradition in criminal law where if people aren't intentionally trying to take somebody's money or defraud them, it's not a crime. I would, by the way, not take out the intentional GM knowingly in either section, because I think it makes it abundantly clear. And lawyers, they're where you have a even even a little gap, it's it's opening for litigating one word. And, you know, we do it all the time. And it's to the theory you can make it, the better. I don't think it harms anything by having it in there. You don't have to infer that it you know, the knowingly carries through the statute. It's easy enough to keep it the way

[Michael O'Grady, Office of Legislative Counsel]: it

[Matthew Valerio, Vermont Defender General]: is. So, you know, I support the bill. It is not a huge burden on the public defense system or the criminal justice system as a whole. But it just seems to me, even notwithstanding the thirteenth Amendment issues that have been raised by the court as kind of the vehicle to get to this point, is that it's fair to those who, in good faith, enter into contracts that end up going south somewhere in the middle, where, you know, they I'm sure that folks would just soon finish their contracts. But we don't solve those problems with the criminal law traditionally. We solve them with civil law and negligence law, breach of contract, and maybe even consumer fraud, on us on the civil side. I used to do a lot of those cases in the years I was in private practice. At one point, I was actually, I believe, considered somewhat of an expert in it. And those were pretty effective, where you had somebody who wanted to continue their contractor business in in getting results. But it wasn't it wasn't criminal. It doesn't rise to the level of something where jail or fines or probation or or the like was the appropriate resolution. Because frankly, it get the job done any better than the civil system does. And the civil system has its limitations as well, even if you get a judgment. But this is not traditionally a criminal a criminal area, but it rose kind of rose escalated to that level because there was an issue with it. Wasn't I thought it was covered by other law, which I think it was. But that having been said, change in 'fifteen was really the result of the attorney general's office at the time saying this was difficult to prove, and it is, and probably should be. So that's pretty much my testimony.

[Unknown Member (House Judiciary)]: This is pure curiosity. You may not have the answer to, like, the Supreme Court case that led to being found unconstitutional. I'm curious if it was land improvement or home improvement.

[Matthew Valerio, Vermont Defender General]: Well, these were both trial court in Vermont. The ones from the '80s and the '90s from other states, I was familiar with them at the time because it was part of the argument in 2015. But both of these in Vermont were trial court decisions.

[Unknown Member (House Judiciary)]: Do you know if they were a belaying or belaying

[Matthew Valerio, Vermont Defender General]: or And don't really most of the ones that went up, or had been litigated have not been land fraud. They've been they've been con the, you know, built contractor field

[Hilary Chittenden, Office of Legislative Counsel]: Yes. The late nineteenth century, early twentieth Supreme Court cases that these recent Vermont child court cases are relying on aren't really home improvement or land improvement fraud statutes. Their statutes say, if you are a laborer and you promise to do work on someone's land, I think general agricultural, and you get an advance and you don't pay it back, that can be grounds for criminal liability. So I guess if you have to classify it, it'd be an improvement, but that's not really how it was, not those types of over time.

[Matthew Valerio, Vermont Defender General]: Some of these land improvement ones, if I remember the testimony from eleven years ago, really had to do with, like, a lot of logging type stuff. We had a separate we have a separate logging statute as well. It also has, like, a civil penalty, three times stump value or something for, you know, longfully cutting trees. And and they were kind of intermeshed together when when this was being discussed. I don't know that it makes that much difference, but these usually were kind of trying to deal with the folks who are coming door to door saying, Hey, I'll paint your house for $2,500. I need $1,000 down. And, you know, they show up for one day, splatter some paint, never show up again. Thanks for the other $900 that we just put in our pocket, that kind of thing. That's really what was, I think, they were looking at. There are giant, like, breaches by big companies that, like, lose their credit lines and that kind of thing because a sub doesn't somebody doesn't pay them, that kind of thing. That that happens in business all the time. Interestingly, we don't usually go after those guys. It's usually the little guys that get subject to this.

[Rep. Martin LaLonde (Chair)]: Any other questions from that? All right. This one seems straightforward. It's good to have a feel that you can follow support. You'd

[Matthew Valerio, Vermont Defender General]: Let's see what happens. There's something wrong with this one.

[Rep. Martin LaLonde (Chair)]: Thank you very much, man. So we're going to shift to page six fifty seven because Angela is going to be presenting an amendment to House Human Services. So just really quickly, a week and a half or so ago, we had some testimony on this. Frankly, I thought that we had closed the loop on what our recommendations were to house human services. There was some tweaking of language for clarity that they made in the amendment, but actually I was mistaken. We hadn't closed the loop on the immunity for liability issue, which I wasn't here. I was presenting to repulse appropriation, so I didn't realize that that was still an open issue. But with that, I will turn it over to Angela if you could just help him explain where we are with this really good clarifying language more than before than anything else.

[Rep. Angela Arsenault (Member)]: Yes, if there were something we could call it other than an amendment, might be more appropriate, really. But anyway, if folks recall, I think we had Adam McFasten testify on behalf of the plaintiff's attorneys. And there was some concern about the language potentially being a bit too broad, the immunity provision being a bit broad. And I can read the difference if folks want to hear. So in the bill that passed on second reading that we heard, it's on page nine of draft 8.1, immunity from liability said any entity provider or health care professional who contracts with an unaccompanied youth pursuant to this section shall be immune from liability for the determination to contract with a minor unless the entity provider or health care professional acted with gross negligence. So the amendment proposes using more specific language that really gets at, as Ledge Counsel Attorney Katie McGlynn explained or phrased it for me, really is more specific to the purpose of the bill. So it's just saying, as you can see, an entity provider, healthcare professional who relies in good faith on a certification form presented by a person who claims to be a certified unaccompanied youth pursuant to the section shall be immune from liability for such reliance unless they act with those negligence. So it's just much more specific language to balance the necessary protections so that providers feel safe, comfortable entering into the various forms of contracts and service provision that's stipulated in the bill, but also that youth who may be armed still have the ability to seek damages for any real negligence. That's the first one. And then the interestingly, the conversation we were just having about one eighty three, sort of relevant to this second instance of amendment. So this instance of amendment comes from existing statute. This language was not touched in June, but the keen eye or set of eyes, parabies at the Office of the Child Youth and Family Advocate realized that the existing statute in '13 BSA 1311 was potentially exempting shelter providers from something we did not want to exempt them from. So in 13 BSA, thirteen eleven, it says that Let's see. I'm going read some more. So there are A person commits the crime of unlawfully sheltering or aiding a runaway child if And then it's three things. Knowingly shelters a runaway child, intentionally aids a child to become a runaway, or three. Knowingly takes, entices, or harbors a runaway child with the intent of committing a criminal act involving the child or with the intent of enticing or forcing the child to commit a criminal act. Then just one line down, it says exempt from the prohibitions are shelter, directors, agents, employees of a shelter, person who's taken a child into custody. So, inadvertently, that broad exemption said that shelter directors or a person who takes a child into custody is not prohibited from taking, enticing, or harboring a runaway child with the intent of committing a criminal act or involving a child or with the intent of enticing or forcing the child into a criminal act. So this amendment changes that and says, these folks are exempt from the prohibitions of subdivision B1 and B2, which is just knowingly shelters a runaway child or intentionally aids, helps, or assists a child to become a runaway child, but will not be exempt from the prohibition against taking a child with the intent of committing a criminal act.

[Rep. Martin LaLonde (Chair)]: Makes

[Rep. Angela Arsenault (Member)]: sense. Which we don't want them to be exempt from. No. Yeah. Right. That's the amendment.

[Rep. Martin LaLonde (Chair)]: Okay. The question about you, so this is kind of, I mean, second thing is just something that was picked up on, which it just seems very, very clear

[Rep. Angela Arsenault (Member)]: that fix is necessary, and it happens to be put into this amendment. Right. Because we're bill, obviously, the bill is addressing this section 13, ESA thirteen eleven, this section of statutes, so might as well fix it while we're in there.

[Rep. Martin LaLonde (Chair)]: Right, and the amazing part, from what I understand, I wasn't here for the testimony. There was some clarification is what the discussion was around the table, and this does that clarification. That correct? So I think unless anybody has objection to this, I don't think we need to have a straw poll for this. These are really two clarifying bits. But I just wanted to make sure everybody heard since it did come out of the conversation that was a couple weeks ago. Anything else on this? All right, so we will, this case we'll take a break or fifteen minutes and we'll get to Andrew and Todd's vehicles and we have one other witness. And I am reaching out to see if I can get into the other couple of people that are on the fluoride assault bill still this afternoon, because I think we'll have plenty. We should probably have plenty of time to do that. So we