Vermont Legislature SmartTranscripts:

[Martin LaLonde (Chair)]: Hi. Welcome back to the House Judiciary Committee and turning our attention to s two zero nine. And there's just one change given one proposed change that is language I proposed and had Rick draft up, given some of the testimony and discussion that we had yesterday. It's on page two, and it's regarding buildings. It's significantly, I will admit, narrows what buildings would be under this restriction in the language of building owned and only controlled by the state or a political subdivision of the state where members of the public may enter in order to conduct government owned business. I mean, it doesn't include specific, I mean, it very much wouldn't include the National Life building or equivalent kind of facilities that are leased or rented. I recognize that this does, again, significantly narrows this, but I think it gets at somewhere, it would include the State House, for instance, and other kind of obvious state and political subdivision buildings. Yeah, Kenneth? What's political subdivision? It appears in a few 100 different places in our statutes. I think 56 places it does define it, and it would be towns, cities, municipalities. It's my understanding. It includes, you know, that's in villages. So is there like a breakdown of certain buildings that you can give me a for instance on, or Okay. That's town hall?

[Kenneth Goslant (Clerk)]: Mean, if it's Municipal if owned by the municipality or the subdivision, and they fully control it, then yes. If it's like a municipal office that's being leased or rented from someplace else, this doesn't cover it.

[Unidentified Committee Member]: And that members of the public may enter.

[Martin LaLonde (Chair)]: And it has to be places where the public can enter.

[Angela Arsenault (Member)]: Thank you.

[Martin LaLonde (Chair)]: So it's to try to address I was kind of hearing from folks is that it gets very complicated as far as knowing where this provision would apply and where it wouldn't. And I think this is the best way to really narrow what people should know about our state buildings. And, again, I know that it doesn't necessarily include everything we'd like to see it, but it does go a step further than what we've received from the senate. Yes, yes, Angela.

[Angela Arsenault (Member)]: Yeah, I would just say that I acknowledge that as well, that it narrows from where we were a couple of days ago, that when we're holding two different truths at the same time, this makes a lot of sense to me. So knowing that it's important that the law be easily understood by the folks who would be affected, this makes more sense to me. Don't think that we're going too far if we think that we can expect federal agents to know if the state is leasing office space and what that all means. Appreciate the straightforward nature of this language, and I think it's an improvement, even though I recognize it's a narrowing.

[Unidentified Committee Member]: Yeah, it's definitely a compromise. And I think I just want to put voice to the fact that it is smaller and less wealthy communities that are going to have municipal and state buildings that are not state owned and are rented, and that the narrowing of this language is going to impact those communities more than larger communities. And so that said, I really do get why we need to narrow the language to get it to a place that actually is workable. So I think it is a compromise that

[Martin LaLonde (Chair)]: I support. Your

[Jay Pershing Johnson (Governor Scott's Legal Counsel)]: timing is perfect. Yeah. It's pretty imperfect, actually.

[Martin LaLonde (Chair)]: Perfectly imperfect. I think I just heard federal authorities. This is a federal authority bill only? No, not as it is right now. It would apply, but my understanding is there really aren't civil arrests that are made without warrant or order by state or local law enforcement. So in effect, it really is applying federal. Let's see here. I think that gets us one more question. Can you hold that question? Because we don't have Jay for very long, and I just wanted her to touch base on the building issue. There's some language. If you can give We've changed the language slightly from Well, not slightly. I think significantly from what we sent to you. If you could see Yeah, but I would think it's, I would assume largely the same testimony that you may have for us.

[Jay Pershing Johnson (Governor Scott's Legal Counsel)]: About and also local. Internal to the government. Oh, no. Okay. And and if

[Martin LaLonde (Chair)]: you're not prepared to to because this is new language, it it narrows pretty significantly from the language we had before. So it takes out rented or leased property and makes clear I mean, these are the pretty clear federal buildings, like the pavilion, like here. Yeah. Or a wholly owned municipal clerk's office. But you can give us the broader, pros or cons, however you want to weigh in this, and thank you for collusion.

[Jay Pershing Johnson (Governor Scott's Legal Counsel)]: Oh, yeah, no, thank you for inviting me. Again, Jay Pershing Johnson, Governor Scott's Legal Counsel. So I guess my thoughts largely come from BGS, which essentially makes the point that we don't have personnel sort of manning the desk of every state building. This says, may enter in order to conduct governmental business. We have lots of locked buildings where people have to be buzzed in. I think that's a lot of AHS, maybe district offices. Then you have other kinds of state buildings. I think it's even true, you can walk into the pavilion, but you can't go upstairs. You can't get into, say, the building where State Surinence Sheriffs are located. You need to badge access, so they'll let you in. But to the extent that you are able to badge in, just because you're a member of the public, and you show up at the door and the person there is a receptionist or somebody there, They're not necessarily security. They may be just an administrative person sitting at the desk, not trained for anything except to say, hello, who are you here to see? And they'll probably ask for, they may ask, I know in public safety's building, you go into their building and that is, you can enter the lobby, there's a person sitting behind a glass wall, and they say, Can we have your ID? Which they can log on to while you're visiting, and who are you here to see? And then that person comes to get you. So there's all kinds of different ways that people access state buildings. Here, obviously, you can walk in the door and walk down the hall and it's public, it's the people's house. So with those constraints, it would be very hard to sort of, I guess, how would this be implemented in a state building? Is one question. What does this mean if the intent is to address the fears of individuals who are not going to a state building because they may be arrested, how does this address those fears? What if the ICE person is waiting in the lobby and the person, whatever, their subject walks in and they arrest them with their administrative warrant, what is that person at the desk supposed to do at that point? Do they call local law enforcement? Do they call their supervisor? And they say to the ASA agent, I'm sorry, can you hold one sec? It would seem to me that because this is going to require a ticket, you're gonna have to call local law enforcement.

[Martin LaLonde (Chair)]: So this doesn't require a ticket? This this one? So Oh, it doesn't?

[Jay Pershing Johnson (Governor Scott's Legal Counsel)]: Yeah. No. This is So just to share on that? The

[Martin LaLonde (Chair)]: the remedies are are are either find no remedies here. It's at the bottom of page three.

[Jay Pershing Johnson (Governor Scott's Legal Counsel)]: G's office for bringing civil action

[Martin LaLonde (Chair)]: It's not a criminal action there, and it's a private right of action on Subdivision B and enforcement authority in the attorney general's office in Subdivision C. So essentially, scenario, as I understand it, Jay, is that if that were to happen in a building, the person who was arrested would have a call of action, or or even attorney general's office wouldn't bring an action. I don't think So have

[Jay Pershing Johnson (Governor Scott's Legal Counsel)]: call the police Yeah.

[Martin LaLonde (Chair)]: I I don't think the expectation of that.

[Jay Pershing Johnson (Governor Scott's Legal Counsel)]: So the person is detained by ICE. They get taken to the ICE facility and sent to Texas. And then they call the attorney general's office, who is then supposed to issue an injunctive relief against ICE for performing their legal function in Vermont. So anyway, there's logistical issues with what is that person supposed to do, and not every person has access to every building, and there isn't always somebody staffing it, and the person staffing it may or may not be security. And it's very unlikely that in the state house, have certified law enforcement. We don't have that in our buildings. And in a courtroom, you would, I guess you'd have a sheriff, and you would have obviously Capitol Police here. But I do run into then that sort of federal question that the Ninth Circuit brought sort of into high relief, which is, don't you run into the same problem? The state is actually trying to criminalize, or not criminalize, penalize the exercise of a federal law enforcement, the lawful exercise of a federal law enforcement function. And while it's spread across all of the different law enforcement agencies, it's irrelevant according to the Ninth Circuit. Also, can't harbor and we can't impede, and we can't prohibit anyone from communicating with a federal officer. So my first concern would be sort of one raised on behalf of just the operations folks, what are they supposed to do? What is our policy supposed to look like? And actually, that person probably isn't allowed to stop the officer. And And then you run into this question, if any AG's office actually enjoin ICE from arresting people in the performance of their federal function, are we not, again, trying to regulate federal function? It's kind of where I run into the questions.

[Martin LaLonde (Chair)]: And so we've had some testimony from the AG's office and also looked at a Northern District Of New York case that treats us somewhat differently, particularly in that instance. And there are more just that case involving the similar kind of setup related to courts, like our current law, and has been upheld. There was an executive order actually in New York that specifically targeted immigration enforcement in state facilities, were buildings wholly owned or in part. And that was upheld because there's the state interest in the property. So that's one thing. And there's also state interest and this wasn't directly in that particular case, but it was kind of alluded to it from the college, as far as poor governmental services that if they're being provided, the state has a lot more authority vis a vis the federal government. So that's kind of it's a little bit different than we'll see how different it is because if this gets all the way through, that's not a deal to be Circuit? That case is not I don't believe it's been appealed. I'd have to double check. Okay. But yeah, so this will inevitably be litigated, almost certainly. The question is what kind of arguments we have. And we've heard that we had some different arguments here than we did with respect to two zero eight. And the

[Jay Pershing Johnson (Governor Scott's Legal Counsel)]: only other practical concern then would be, to the extent the AG's office is supposed to see conjunctive relief for individuals in this situation, it's my understanding they are severely resource constrained to the point where they aren't even prosecuting cases in their criminal decision. They've already got a caseload of probably about 50 federal cases. They have asked for more people for But I guess a question is, if they in fact are resource constrained, how much does this add to their burden? Which I guess would concern this committee.

[Martin LaLonde (Chair)]: Yeah, that's always a concern, and thanks for raising that as well. Angela, thank you.

[Angela Arsenault (Member)]: And to your question about what is the reception staff or others who are just in the lobby or whatever of state building, what are they supposed to do? My reading of the bill is that there is not an expectation placed on them to enforce this in any way. And I think about schools, most schools don't have security staff, Most libraries are not going to have security staff. A lot of the places on this list don't have those personnel. So just to be clear that there is no expectation on folks inside state owned buildings to be enforcing the law. It's really more in those cases, if the hypothetical you shared were to happen, I think the law is in place for remedy after the fact. Sure.

[Jay Pershing Johnson (Governor Scott's Legal Counsel)]: And the other question I I guess So say you have the Capitol Police, and this happens, and the Capitol Police do nothing. That's your expectation.

[Martin LaLonde (Chair)]: What was it? So

[Jay Pershing Johnson (Governor Scott's Legal Counsel)]: an ICE agent walks through the building with the understanding that there's an agent here who may even be walking out of a committee room. They arrest that person with an administrative warrant and they go to exit the building. What is Capitol Police supposed to do?

[Angela Arsenault (Member)]: I think that I wouldn't place that expectation on the police. I would bet there's a good chance that that discussion has perhaps even already been had by the Capitol Police. I mean, as long as whatever there, there's no expectation. There's no expectation for anyone to interfere. I think the guidance, even in the bill that we discussed yesterday, the school guidance, no one is saying that I've seen, that I haven't seen any guidance to any entity saying it's your job to stand in the middle of this. Okay.

[Jay Pershing Johnson (Governor Scott's Legal Counsel)]: I mean, that's, yeah, so that's an answer to questions that have been raised. It is this, of course, we all know, there's legally no expectation, but there is often an expectation. I mean, right? But as long as that's clear, there is, and again, I just question sort the of, if this intent is to help people feel less afraid, whether this in fact raises false hopes in a way that, practically speaking, will not do anything.

[Unidentified Committee Member]: I think I just have a question. So two things. One, do you think someone could challenge the validity of the arrest if they were to be taken in one of the locations that they're not allowed to just use an administrative warrant on and they're arrested?

[Jay Pershing Johnson (Governor Scott's Legal Counsel)]: Maybe in state court. But at that point, there is a federal immigration proceeding and that person has been arrested for a purpose. Right? You obviously I mean, not obvious. It should be obvious, not always obvious, that there was probable cause to obtain the administrative warrant. That's what second sergeant has held. So you have to have probable cause. Same first for a criminal. And then you arrest that person. And whatever that It could be the person that has a felony for reentry, and it's a final order, and they have refused. So it's kind of a The federal government has made a legal arrest in the course of their federal duties under federal law, and they're gonna be proceeding in immigration court, or some other And if they have a challenge, I mean, obviously there are cases that are gonna go to the district courts. But generally speaking, Not generally speaking, there could be those kinds of outcomes, right? You go to a federal district court, or you will end up in a federal immigration detention facility and going to immigration court, but you may or may not have counsel. And in Vermont, you may well have counsel. And so you'll be experiencing that, and you may have a case that will be untested under this law to argue that under this statute, your arrest was unlawful because you were on your way into a school.

[Unidentified Committee Member]: Not any Oh, yes.

[Jay Pershing Johnson (Governor Scott's Legal Counsel)]: Right? And so then So that's your argument. You have representation, and the federal government shows up and says, This person was exercising their federal authority under lawful I mean, the federal jurisdiction, federal authority, lawful, legally obtained warrant. Okay. I I guess I just don't, I don't know how that plays out in court. You can ask all the other litigators who have been in this chair, right? I would just be curious about what how strong they think that state legal argument is. And ultimately, what the I mean, if it's the you could get punitive damage and reasonable costs and attorney's fees from the federal government. I kind of doubt that that's viable, but I don't, I'm not a litigator. I would ask the AG's office, obviously has testified and others, ACLU, can testify on how likely that claim would be, it's succeeding.

[Martin LaLonde (Chair)]: Any other questions for Jay? It's not. I think it will adjourn for the morning and think we will be back this afternoon after the floor. I'm not sure what time, but I'm gonna guess two.