Vermont Legislature SmartTranscripts:

[Sen. Nader Hashim (Chair)]: Great. Alright. Good morning. It is January 7 for senate judiciary, and we are starting off with s two zero nine. It was introduced by senator Vyhovsky and a number of others. And we'll have Senator Vyhovsky do an introduction, and then we'll hear from Rick to provide us a walk through and take it from there. So Senator Vyhovsky, if she's all here.

[Sen. Tanya Vyhovsky (Member)]: Wonderful. Thank you. So this is, dare I say, a fairly simple little bill. We currently have a law on the books prohibiting civil arrest without assigned to judicial warrant in courthouses. And what this law proposes or what this bill proposes to do is to expand that to include state and municipal buildings, schools, shelters, and health care facilities to that list of places where civil arrest would only be allowed in the signing judicial warrant. And the sort of thought behind this is those are all places people might have to go and should be able to do so without fear of being snatched. And

[Sen. Nader Hashim (Chair)]: and just to clarify, civil arrest,

[Eric FitzPatrick (Office of Legislative Counsel)]: obviously different from my

[Sen. Nader Hashim (Chair)]: criminal arrest. And,

[Eric FitzPatrick (Office of Legislative Counsel)]: actually, that's probably the question for Rick,

[Rick Siegel (Office of Legislative Counsel)]: but I'm a good spouse, doc.

[Eric FitzPatrick (Office of Legislative Counsel)]: Anything else?

[Sen. Tanya Vyhovsky (Member)]: No. You know, all all I'll say is, you know, in the op section, I did a lot of digging with our legislative council and the ACLU and others for ways to protect Vermonters and make sure that they have access to essential services, and

[Sen. Tanya Vyhovsky (Member)]: this was one avenue that I saw, that we could do that. Right.

[Sen. Nader Hashim (Chair)]: Any questions for everyone? No. I'll wait for the walk through. Sounds good. Almost called his senator. Rigor, could you Oh.

[Sophie (Office of Legislative Counsel)]: I'm going

[Sen. Nader Hashim (Chair)]: to grace.

[Sen. Tanya Vyhovsky (Member)]: Is that a privilege that you're you're hoping for?

[Rick Siegel (Office of Legislative Counsel)]: Less pay, so I don't know.

[Sophie (Office of Legislative Counsel)]: Yeah. Much less.

[Rick Siegel (Office of Legislative Counsel)]: Good morning. Rick Siegel, office of the Legislative Council. Good see you all again. I'm gonna share my screen here for s two zero nine. And as senator Klosech said, it is a simple bill as far as the change to the law. There's a bit more background that I'll that I'll talk about. In fact, let's let's talk about the the Bill Act one fifty three. That was 2022. You may remember this one. This initially codified this idea of civil arrest protections in courthouses. There's this common law idea that when you go to court, you should be protected from a civil arrest. Some states codified it. We have, Vermont has now, some states haven't, but it comes from Maine actually, where

[Sen. Nader Hashim (Chair)]: Rick, I'm sorry. Just before we start going forward, can you just clarify what is a civil arrest and how is it differentiated from a criminal?

[Rick Siegel (Office of Legislative Counsel)]: So it's kind of an oxymoron. Right? You don't really associate civil cases with arrests, and they're not common. So a civil arrest would be, you know, a contempt of court, where you're in the court, or you are supposed to appear in court and you're not there, so the judge says, bring this person to the court. Right? That would be an example of civil arrest, where the law enforcement comes and literally breached the court. You're under arrest and that you're in police custody during that time, but you're not really gonna be punished. Right? Except for going to the thing you're supposed to go to. So I think a good way to explain it is it is not a punishment. It is a coercive act. It's meant to bring the person to the destination they were supposed to go to. In attempt of court, if you're in the courtroom and you do something that the court does not approve of,

[Eric FitzPatrick (Office of Legislative Counsel)]: you can be in contempt and taken out of the

[Rick Siegel (Office of Legislative Counsel)]: courtroom and temporarily held. Right? But a civil arrest is not a very common thing. It is not a citizen's arrest. Some people think they're the same thing. They're not. In the immigration context, which I think is what this bill mostly speaking to, is, the INA, the Immigration Nationality Act, permits federal law enforcement, ICE, DHS, or to basically civilly arrest people to begin the deportation or to take them to

[Eric FitzPatrick (Office of Legislative Counsel)]: the removal

[Rick Siegel (Office of Legislative Counsel)]: proceeding. Would be the case of the civil arrest in the immigration

[Sen. Nader Hashim (Chair)]: context. So immigration arrests are considered under

[Rick Siegel (Office of Legislative Counsel)]: the umbrella of a civil arrest? It is under the INA's deportation removal procedure, yes. You can be criminally charged with immigration crime, that's not as common. That would require a judicial warrant, not require a judicial warrant, just a administrative to amend the immigration.

[Sen. Nader Hashim (Chair)]: And if there was a judicial warrant, this, if it were passed through the law, this would not prohibit the judicial warrant being carried out. That's right. Okay. Please, sir.

[Rick Siegel (Office of Legislative Counsel)]: Oh, yeah. Glad glad to use the background. So like I was saying, this act 103 codified this idea that specific to courtrooms, that if you are in a courtroom, going to a courtroom, or leaving a courtroom, you should not be subject to a civil unrest. And Vermont passed that in 2022. So at I'm sorry. S two zero nine, which is what we're walking through today, adds on to that law that was passed several years ago. On page two, c one, this is the part of the law that was added in 2022, this prohibition. You'll see a person on line nine. A person shall not be subject to civil arrest while traveling to, interning, remaining at, overturning from a current law court proceeding is what is in the statute. Subdivision B is added to say state, county, or municipal building. School. Community based shelter, severe weather shelter, or emergency housing provided under the 33 BSA Chapter 21, a healthcare facility as that term is defined in 18 BSA 90 four-two. I have each of these pulled up in statutes so we can look at them in just a second. But this would be the additional places that a person would not be subject to a civil arrest unless there is a mutual warrant. And I'll show you that here. The exceptions do not change. In fact, this is the only part of the bill that does change, is C1 adding those additional locations that are protected from civil arrest. So the exceptions are, if there is a judicial warrant, you can still be arrested in not just a courthouse, but in the school, health care facility, etcetera. B is specific to a courtroom, so if you're in the court and you are in contempt with court, this does not get you out of that. You are still subject to civil arrest. And C, an arrest may importer or safety in court if a proceeding is occurring. So no changes there. Subdivision 3A, the addition of C there is just a grammatical correction from the bill last time. A person who violates a subsection, and it could be an officer, it could be a non officer, someone tries to execute a civil arrest, a sentence arrest, I guess, by knowingly and willfully executing or assisting with an arrest prohibited by that subdivision shall be subject to consent proceedings and may be liable in civil action to false precedent. A person who is arrested, they bring a civil action. So if you are if you if this bill were to pass as written, and if you're arrested in school, let's say, wrongful leave, right? Then you would be able to bring a civil action against the entity person that did this Subducency, the AG can also turn a civil action on behalf of the state for relief if there is reasonable cause, believe that a violation occurs. No action shall be brought against the judiciary or any of its members or employees for actions taken to maintain order of safety. Again, this was passed originally just from courts. So the thing about that is that's one of the exceptions there that you don't want to put a judge or a court employee in the line here. B, the section shall be construed to limit more infringement on any right, privilege, remedy available under common law or any of conditional law rule. F, notwithstanding section, which I'll bring up bring up here in a second, these protections and remedies afforded by the subject and applied irrespective of when the privilege against civil arrest is invoked. In fact, let me show

[Sen. Philip Baruth (Member)]: you that one now just because

[Rick Siegel (Office of Legislative Counsel)]: So this 3578 requires a person and the officer at the time of the civil arrest that they're invoking their right to be free from civil arrest. So this law, when it comes to the corporate aspect and its other acceptance strategy, you would not have to claim that privilege at the time of arrest, it could be later on. You don't lose your right to invoke your protection from civil arrest if you don't announce that right of intervening is taken away by the officers. And then the definition, as used in the subsection, civil arrest means an arrest for purposes of obtaining a person's presence or attendance at a civil proceeding, including a deliberation proceeding, and the act can take effect on passage. I can bring up the definitions of the municipal or the community shelter or the health care facility if you'd like.

[Sen. Nader Hashim (Chair)]: Well, one one quick note. I I do think this might be a question for Beth St. James, actually, we may want to consider definition for school. I think it could be very broad, like, way written right now. Maybe any initial questions?

[Sen. Philip Baruth (Member)]: I do have a question about community based shelter. Is there a definition for that already in statute?

[Rick Siegel (Office of Legislative Counsel)]: There may be, but we're not gonna At this point, it's not even cross referenced, so if you want to define that, it would be helpful.

[Sen. Philip Baruth (Member)]: Yeah, I'm just wondering if, kind of maybe this is similar to Chittenden's question about school, you know, a community based and shelter could be very broad. And I mean, personally, I I wouldn't mind a broad provision because I don't like these arrests in any context of a hurricane. So but it does seem maybe a squishy bite in terms of the definitions.

[Rick Siegel (Office of Legislative Counsel)]: That always can be more specific, especially when you're holding people civilly accountable for an arrest in one of these places. You don't want someone to be made, file a new law when it's not clear that Good Samaritan is that an example, Is that right? I would say yes, but that judge may disagree with me that this is not a community shelter. I think it's more clarity would be helpful for the law, but you could also make it very broad. You could say, including this, if you don't want to be specific to a cross reference. Yeah. Enough. Yeah.

[Sen. Robert Norris (Vice Chair)]: Do have one more question. I mean, a civil arrest in Vermont by law enforcement officers basically nonexistent as far as the criteria. So what we're saying here basically is the federal entities who are out there doing that now, are they working within the scope of the federal law when they're doing this?

[Rick Siegel (Office of Legislative Counsel)]: So the INA, the Immigration and Nationality Act, does give federal law enforcement the right to civilly arrest people who they believe, through an administrative law, are in this country without documents, right? So you remove them or take them to their removal proceeding. So yes, that federal law does give them the authority to do that. Correct.

[Sen. Robert Norris (Vice Chair)]: So what they're doing is illegal. Right. Thank you.

[Sen. Nader Hashim (Chair)]: What's the difference between an administrative warrant and a judicial warrant?

[Rick Siegel (Office of Legislative Counsel)]: So judicial warrants are based on probable cause that has been reviewed by a judge, and the judge, based on their subjective opinion, believes that this is worthy of a person being arrested, right, that your Fourth Amendment is being protected. And that's true of the warrant is again provided. The INA has, its own process for how these are issued. It's not a judge, specifically a DHS employee supervisor that reviews the case, and decides that we think this person should be brought to a to prove a person not probable cause.

[Sen. Nader Hashim (Chair)]: And oh, thank you. Could you also describe what we as a state have to pass law that may affect, immigration enforcement? Okay.

[Rick Siegel (Office of Legislative Counsel)]: So, yeah, immigration is one of those, areas where it's mostly federal law. Right? Federal government has wide latitudes in regular immigration law, but then the state has wide latitude in its police powers. Right? How, crimes are enforced, to the extent that the state has sovereignty over its own own borders and borders here. So the Supreme Court has not yet ruled on this specific type of state regulation. There have been some federal courts specific specific to the court. Let me be more clear. When a state declares its courtrooms to be, you know, in civil arrest, federal courts have decided for the most part that that is a use of state power that's approved by the Tenth Amenden, the IMA is this one thing, that federal law enforcement is allowed to go in and arrest somebody suddenly, but states also allowed it to say, well, you can see that, but not here. Right? You think that this aspect of our state, the courtroom, state buildings, whatever you want to say, it gets a little bit gray, right? You can't say the entire state is immune from civil arrest, that would not be appropriate, but there looks to be some authority for the state to say, yeah, but we don't think this is an appropriate place for you to use your right to simply refuse. Got it.

[Sen. Nader Hashim (Chair)]: So just to summarize, is it fair to say that, generally speaking, we have the authority to create policy regarding how laws the manner in which laws are enforced, but we don't have the authority to say whether or not laws can be enforced.

[Rick Siegel (Office of Legislative Counsel)]: Yeah. That's fair

[Sen. Nader Hashim (Chair)]: with the time. Thanks. Any other questions, I do have

[Sen. Robert Norris (Vice Chair)]: in in reading through 02/2009, and Sandra Vyhovsky was in the curve walk through. I should mention this was the detect for a long resident. I don't see anywhere in here where it specifies just says persons or persons. I guess that'll be looking for the definition under s two zero nine as what is a Vermont residence. The follow-up question is under thirty five seventy seven on page one. Can you give me, like, a sample as to what this would

[Sen. Nader Hashim (Chair)]: or would not cover?

[Sen. Robert Norris (Vice Chair)]: Is somewhat confusing. I you're under privilege from arrest. It's appeared to be elected officials.

[Rick Siegel (Office of Legislative Counsel)]: I'm sorry. The the the page one, the 3,577, the subsection a. So this this law is I'm not sure when it was passed. It's been years. It's one of those laws where if you look at the statute, there's

[Eric FitzPatrick (Office of Legislative Counsel)]: no date on it. So

[Rick Siegel (Office of Legislative Counsel)]: it's it's been on the books for a very long time. The courtroom provision was, like I said, added just a few years ago. So the history of being governor, you all, various state officers being immune from arrest, why you come back, you form a history? Because I don't know

[Sen. Philip Baruth (Member)]: the history right now.

[Rick Siegel (Office of Legislative Counsel)]: But there appears to be some interest to protect officers, elected officials, from when they're coming to the State House to be protected from arrest.

[Sen. Philip Baruth (Member)]: Was swiped. They had to wait when they arrested, sergeant McAllister, wait for him to leave the building, and step up to have a cigarette.

[Sophie (Office of Legislative Counsel)]: Was Just

[Sen. Robert Norris (Vice Chair)]: long I I I would like

[Eric FitzPatrick (Office of Legislative Counsel)]: to know more hateful about it.

[Sen. Robert Norris (Vice Chair)]: It's just long Sure. We're not setting ourselves here for a time. Seems a bit

[Rick Siegel (Office of Legislative Counsel)]: So, yeah, subsection a is change

[Sen. Nader Hashim (Chair)]: to the law.

[Rick Siegel (Office of Legislative Counsel)]: Subsection a is Antiquated. Totally unique to the there are all these exceptions or subsection C, which is currently the courthouse accepting. Subsection A and B, in fact, are, again, it might be 100 years old. I can go back and see how these laws are. But subsection C is what all these other exceptions apply to currently.

[Sen. Robert Norris (Vice Chair)]: But it does say the tennis arm had been going to and returned to the general assembly.

[Sen. Philip Baruth (Member)]: Actually, David Sutherland got pulled over for speeding on his way to the State House and to go and do this, and then arrange to go and get his ticket later.

[Eric FitzPatrick (Office of Legislative Counsel)]: That's that's what I've often told.

[Sen. Nader Hashim (Chair)]: You can't be pulled over on your way to the state House, but they can send you a ticket. Yeah. So it's not that you can just speak down the interstate. You have no recourse whatsoever. Yeah. They can't impede your way to the state houses.

[Rick Siegel (Office of Legislative Counsel)]: I also want to make clear that's not just civil rights. Right? The civil arrest is specific to this issue. The subsection A is also criminal, excessive felonies, and what is it? Disease. Treason. Yeah. So it's a bit more protective of the, you all than, people going to court.

[Sen. Nader Hashim (Chair)]: Any other questions? I guess, first part of

[Eric FitzPatrick (Office of Legislative Counsel)]: the question.

[Sen. Nader Hashim (Chair)]: Oh, sorry. I didn't know. What's the

[Sen. Robert Norris (Vice Chair)]: answer for us to who's this applied to a head Vermont resident Vermont residents, and it says nothing but a person who's in here. Yeah. Won't be the definition of Abraham Lincoln. So Someone who's here or someone who's

[Rick Siegel (Office of Legislative Counsel)]: I I wouldn't use that term because that's not the term we're using. A person would be any human being. That's what this statute currently is. So you can change that, but it's currently 80 cubed by the standards, either temporarily or

[Eric FitzPatrick (Office of Legislative Counsel)]: Okay. That's the way it's Anything else?

[Sen. Nader Hashim (Chair)]: Any witnesses this is a question for the committee or if you have any thoughts. Any witnesses that folks wanna hear from regarding this bill? Yeah. We can add to the roster. We'll be excuse me. We'll be working on the agenda tomorrow morning. Concerning the line of people up for different bills. So, folks have any recommendations or suggestions for witnesses that they wanna hear from. Happy to hear.

[Sen. Tanya Vyhovsky (Member)]: Well, given that I spent a lot

[Sen. Tanya Vyhovsky (Member)]: of time in the off session working

[Sen. Tanya Vyhovsky (Member)]: with the ACLU and a lot of this to hear from the ACLU.

[Sen. Nader Hashim (Chair)]: Well, we're gonna broaden the list a bit, so I'll I'll take a few folks. I'm move you to brainstorming too. Okay.

[Rick Siegel (Office of Legislative Counsel)]: I'm very good. I'll give it to you. Please. The school, as you'll talk about, not just my colleague that's in things, but also someone that's involved, either a superintendent or Do you want to include day cares? That's kind of need to think about that term, what that includes, universities. Does it include Norris? Does it include two year colleges? Probably not, but something to think about there.

[Sen. Nader Hashim (Chair)]: Some reason in my head, I thought we had churches.

[Sen. Tanya Vyhovsky (Member)]: I thought I did too, but I may have forgotten who said add it, and I'm more than happy to add it.

[Sen. Nader Hashim (Chair)]: Okay. Yeah. I know we're not in markup right now, but just the mental note that I'm making. In my opinion, I think the churches should be added, but

[Sen. Tanya Vyhovsky (Member)]: I'm not

[Eric FitzPatrick (Office of Legislative Counsel)]: opposed to that.

[Sen. Nader Hashim (Chair)]: Clarity if you wanted to. I

[Sen. Tanya Vyhovsky (Member)]: will say that towards the end

[Sen. Tanya Vyhovsky (Member)]: of the den towards the end of the deadline, something slipped through the cracks as I was trying to approve a couple dozen bills. Alright.

[Sen. Nader Hashim (Chair)]: Anything else, Windham? Great. Thank you, Ruth. Yeah. Thank you.

[Sen. Tanya Vyhovsky (Member)]: If we're going to hear from a superintendent, an

[Eric FitzPatrick (Office of Legislative Counsel)]: anti recognized superintendent services provider,

[Sen. Tanya Vyhovsky (Member)]: they can send some policies, sources like this.

[Sen. Nader Hashim (Chair)]: Do you know them? Yes.

[Sen. Tanya Vyhovsky (Member)]: So

[Sen. Nader Hashim (Chair)]: next, we're be having Eric at ten. So we've got five minutes. So we can go off the air and six minute break. Thanks, Rick. Yeah. Thanks for your

[Sen. Philip Baruth (Member)]: We just see the Russian back tanker.

[Sen. Robert Norris (Vice Chair)]: Yeah. I heard Still alive? Heard There was a Venezuela taker.

[Sophie (Office of Legislative Counsel)]: We're still live. Yes. Okay. In front of the same information. And send live news. Just wanted to make sure you knew. Okay.

[Sen. Nader Hashim (Chair)]: I think we're live. Oh, Oh, well, I guess we're since we're live, I can Okay. Keep it there if we're not starting place. So okay.

[Sen. Robert Norris (Vice Chair)]: Sorry.

[Eric FitzPatrick (Office of Legislative Counsel)]: So we're back. Is the camera working? Is there a try?

[Sen. Nader Hashim (Chair)]: No worries. Well, I see it. Yeah. Close enough. So we're back in senate judiciary for five minute break. We're going to s one seventy eight, which was introduced by me. This is a bill related to speedy trial rights. I'll do the full walkers since we have our attorney here to do that. But, basically this is a change to our speedy trial rights, is a law that is not really, that hasn't been updated in quite some time. It essentially creates the sort of procedure that creates some accountability when it comes to cases that are that have been pending for an extremely long time, and it's essentially a, a policy that will help in addressing our FACT bond. Well, actually, you know what? I'm just gonna pass it to Eric. And if you wanna do our walk through and just go through the bits and pieces of this, that'd be great.

[Eric FitzPatrick (Office of Legislative Counsel)]: Sure. Yeah. Absolutely. Good morning, everybody. Eric Christ Patrick with the Office of Legislative Counsel here to do my first walkthrough in this committee of the year, Senator Hashim was saying it's S-one 178, which is an act relating to speedy trial procedures in criminal cases. It's my first one this year, probably last year, that when I do a walk through, a lot of times I take a minute or two to talk about some background, sort of ground everybody in the big picture of what's going on. That way, I think it can be helpful when you see the details to have that in mind when you look at it. So Senator Hashim is saying, this is a proposal to enact some specific timelines for particular kinds of cases. So when there applies nonviolent misdemeanors, nonviolent felonies, so a criminal charge of a nonviolent misdemeanor is not brought to trial within twelve months after the charge is filed, you have an opportunity for the defendant to file a motion to dismiss. That's what the bill sets up. It sets up a procedure, a process, as Senator Hashim was saying. With respect to nonviolent felonies, it's twenty four months. So they have twenty four months within which they can file this motion to dismiss. There's no result mandated by the bill. In other words, it's not a requirement that the court dismiss the case or to make any particular finding. It sort of sets up this process that would apply in the speedy trial situation. When you say speedy trial, I think a lot of times, first thing that jumps to people's mind is the constitution. Mean, appropriately so, the Sixth Amenden does specifically protect the right to a speedy trial. Sixth Amendment in The United States constitution guarantees that right. But there are no specific timelines in the Sixth Amendment. There's no specific timelines in the Supreme Court case law that's come down under the Sixth Amendment. So states have been free to enact their own statutes. Now some have sent some states either just sort of track the general US Supreme Court case on this, which is called Parker de Amigo, which is sort of as a balancing test. Again, no specific timelines. But plenty of states, whether through court rule or passing statutes, like the one you see proposed in front of you, have a negative specific timing. And that's what S-one 178 proposes to do.

[Sen. Nader Hashim (Chair)]: Yeah, just wanted to jump in regarding the administrative directive from the court. Yeah, in the segue to Is that number 10? Oh, you were about No.

[Eric FitzPatrick (Office of Legislative Counsel)]: No. Please, you go first.

[Sen. Nader Hashim (Chair)]: Yeah. So that was issued in December 2024. So, you know, the the timelines that are provided in this bill are actually more describing this more lenient compared to what our supreme court issued. And, again, what our supreme court issued is guidance, not necessarily a requirement that has to be followed. But what our supreme court said is that all misdemeanors, violent or nonviolent, have to be adjudicated with one hundred and eighty days, and felonies, both violent and nonviolent, have to be adjudicated within one year. And considering the backlog and considering what I think is a bit more fair, the timelines that I thought of this are a bit longer than what the Supreme Court issued. But, yeah, just want to throw that out.

[Eric FitzPatrick (Office of Legislative Counsel)]: Yes, exactly. I think as you mentioned, Senator Chittenden, the Supreme Court administrative order, first of guidelines or goals, uses those words. So, but yours, you're right, are are not as strict as the ones that are in the supreme court supreme court administrative order. And as I mentioned, plenty of other states have done this both similarly by court rule as Vermont has done or by passing statutes. This bill in particular, S-one 178, is based somewhat on a Massachusetts rule of criminal procedure, rule number 36, the Massachusetts rule, so I'll mention a couple of places where some of that stuff is directly from the rule. Is

[Rick Siegel (Office of Legislative Counsel)]: that a court rule? Yeah. Oh, so not a statute? Correct.

[Eric FitzPatrick (Office of Legislative Counsel)]: And that's just Yeah. That's the way it got. But also, interestingly, not as but also more strict than the proposal that Senator Hashim has, for example, in the in the Massachusetts rule, it's twelve months for all offenses, not just nonviolent. So for more violent offenses, you also have a twelve month time limit under the Massachusetts Supreme Court rule, subject to some to some extensions, which is actually one of the places that I've taken the language from the Mass Court rule as well to point that out whenever buy. So there's always this ability. And it's it's a it's a clear line, but there's also a long list of circumstances under which that time period can be extended. So in that sense, there's some flexibility here. But the other way that that that Massachusetts rule is far more strict than this one, this proposal of s one seventy eight, is that the Massachusetts rule, if you don't meet the timeline, mandates dismiss. Case has to be dismissed.

[Sen. Philip Baruth (Member)]: Well, that's a question that I had for you. Reading through it, it looks like everybody is, you know, not obligated. Everybody except a response if required. Correct. But the court may refer to a hearing, may dismiss, etcetera. Does that have to do with separation of powers?

[Eric FitzPatrick (Office of Legislative Counsel)]: In a sense, yes. That the sort of concept of separation of powers does sort of underlay all of this, know, telling the court specifically how to handle the situation. But I think that you would I don't think it would necessarily be a violation if you decided that you wanted to say, for example, dismissal shall be required in a particular situation. But the approach of this bill is not to do that, not to mandate a particular result, but another sort of overarching principle that you've got that would underlie this bill, which is also incorporated, I'll point out where that is, is Rule 48 of the Vermont Rules of Criminal Procedure. And that permits a court to always dismiss any criminal prosecution in the interest of justice. Okay. And this is overriding principle that would provide the court with the authority. Let's say, you he follows the procedure that's outlined in the bill, hears from the prosecution or or assuming they respond. We assume they will, as we mentioned. If they don't respond, there is a specific dismissal. But let's assume they respond. Court weighs the arguments and decides that, you know, it really isn't a valid reason for what you get for to do. Any particular case, the court has the authority under rule 48 to dismiss it in the interest of justice.

[Sen. Philip Baruth (Member)]: Even without this? Correct. And I'm thinking of there's some judges in North District, and my thought was who dismissed a whole bunch post pandemic, a whole bunch of cases. I remember that. Was that Rule 48?

[Eric FitzPatrick (Office of Legislative Counsel)]: I don't know. That's a good question. It might well be. It might well be. And I think, if I remember correctly, there was even, in addition to that, I almost think that there was a time during the pandemic when prosecution, defense and court had all agreed on dismissing a bunch of cases for the sake of efficiency and interest of justice,

[Sen. Nader Hashim (Chair)]: you might say.

[Eric FitzPatrick (Office of Legislative Counsel)]: So there's a in a couple of these leading Supreme Court cases on Rule 48 and when the court can dismiss, Supreme Court has listed a bunch of criteria that the court be considering and those are incorporated into the zoning law. So that was sort of a reference to this court's adherent authority to do that, which is an interesting separation powers question. So

[Sen. Nader Hashim (Chair)]: Eric, there was one question I was thinking from this morning regarding So let's say a nonviolent misdemeanor is beyond that deadline. They're at two years. Right. It is the defense that would file the motion. Right. Exactly. And so the burden would be it could still be on the defense to prove that it is in the interest of justice to dismiss the case. Yes.

[Eric FitzPatrick (Office of Legislative Counsel)]: I think you're right. That Yeah. The the the first instance of what would happen when the defendant they would say the defendant as the bill gives them the right to do, files their motion to dismiss. The prosecution then does have a burden to to explain why. But you're right that that as far as dismissal goes, that'll be that's on the defense to stay. Or if they're gonna demonstrate to

[Sen. Nader Hashim (Chair)]: the court that it's in the

[Eric FitzPatrick (Office of Legislative Counsel)]: interest of justice. Well, I think the court does, if I remember right, the court does have inherent authority to do this so that even if the defense didn't necessarily file the motion, the court would have the ability to to dispense. So I it's just a note for

[Sen. Nader Hashim (Chair)]: the future America. My from my perspective, you know, what my hope to accomplish with this is to have the burden on the state when it comes to proving that it's Indian's justice to not dismiss the case. Mhmm. Mhmm. In other words, if there is a nonviolent misdemeanor that's four or five years old. I was looking at Windham County. The oldest one right now is from 2017 that is still active. I think it's reasonable to have a procedure that requires the prosecutor to explain why that case needs to continue, and my opinion that they have to explain why it's in the interims of justice for that case to

[Eric FitzPatrick (Office of Legislative Counsel)]: stay on the ballot, or stay on the docket. Mhmm, mhmm. So I see what you're saying. And so, you could even add as a possible, and thinking about markup as you're saying. I'm just looking at page 2.4, but like order of now it's framed as response out of plan while the trial did not commence within a time period. You could add, and why it is in the interest of justice for the case not

[Sen. Nader Hashim (Chair)]: to be dispensed. That's what

[Eric FitzPatrick (Office of Legislative Counsel)]: the burden's on them to actually make that case. But that's just, it may be a better way

[Sen. Nader Hashim (Chair)]: to do that, but as you said, it's occurred to

[Eric FitzPatrick (Office of Legislative Counsel)]: me it's more possible approach. So with that in mind, think you probably understand just what's going on in the but we can also take a look at where what we just talked about actually occurs in the field, how it all plays out in terms of statutory language. So if you turn to a look at the provisions themselves, unless there's initial any more questions to the panel before we do that? That's good.

[Sen. Nader Hashim (Chair)]: So, general one, what is the definition of, like, when it commences, a trial is commenced?

[Eric FitzPatrick (Office of Legislative Counsel)]: It once adjudicated or In this case, oh, I see. Well, you have to try to within a year after the charges. So the clerk, the clock starts ticking when the criminal charges are filed. And then that's a good question. Would it be, you know, the paneling of a jury? Would it

[Sen. Nader Hashim (Chair)]: be the first day of the testimony? Would would like think it would likely be depending on the That's

[Eric FitzPatrick (Office of Legislative Counsel)]: what I think I've

[Sen. Nader Hashim (Chair)]: heard. Good question to address. Other things coming in tomorrow, I believe. Okay.

[Eric FitzPatrick (Office of Legislative Counsel)]: But yeah, that nice segue, Senator Mattos. Thank you. Thank that takes us to that language right there that puts in this next turn of language, what we were just talking about, A1, two on page one, set up this timeline and how it works. Subdivision A one, the first one is about nonviolent misdemeanors. Defendant can move for dismissal if the if the trial hadn't commenced within one year after the charge was filed. Subdivision two is nonviolent felony. Can move for dismissal if the trial has been commenced within two years after the charge was filed. So that's your timelines that are set out there. You turn over to page two. Subdivision b one at the top, then we'll say, well, then what Let's say the this this defendant files their motion. B one says what have to happen next. Prosecutor shall respond to the motion within fourteen days. So they've got a fourteen day time limit to file a response. And the court may set a matter for a hearing two. Within their response, what did the prosecution have to say? See that line three and four, they have to explain why the trial didn't commence within that time.

[Sen. Philip Baruth (Member)]: I'm sorry to stop you so sorry. Yeah, no problem. When it says they may set a hearing. Right. If they don't, then what happens?

[Eric FitzPatrick (Office of Legislative Counsel)]: For example, the prosecution. Prosecution, whether the court sets a hearing or not, have to buy a response in the court, you're not supposed to. In theory, the court could make a decision or a ruling based on the papers. They wouldn't they're not required to set the matter for a hearing out of this.

[Sen. Philip Baruth (Member)]: Well, what I'm thinking of is because we're dealing with the backlog. And Right. Everybody's inundated, and everybody's overworked Mhmm. Including judges. So what if a judge has said, I'm I'm not dealing with this crowd. I'm I'm not gonna respond to any of this. Do they just go away if there's no hearing set?

[Eric FitzPatrick (Office of Legislative Counsel)]: You mean if the if the prosecution the the defendants filed their motion and the and What what have the prosecutors filed for? Assume they do. Okay. I don't think a court would just ignore a filed motion. It's a question for judge zoning whether that's ever something that the court would do. It it things that they generally require themselves to respond to any motion that's filed, but I don't wanna speak for him.

[Sen. Philip Baruth (Member)]: Does responding mean setting the matter for the hearing? Not necessarily. Because I I guess what I'm wondering is could could somebody who considered themselves overworked just say, well, there are going to be delays, and I don't hold with this idea that I need to set hearings for these, so I'm just going ignore them?

[Eric FitzPatrick (Office of Legislative Counsel)]: They could decide not to set a hearing. Yeah. I think they would be institutionally and possibly under some other rule obligated to at least respond to the motion one way or

[Sophie (Office of Legislative Counsel)]: another. Okay.

[Eric FitzPatrick (Office of Legislative Counsel)]: Even if it were to say something along the lines of what you're saying.

[Sen. Philip Baruth (Member)]: Yeah, I'm just wondering, you know, given given everybody's workload and what we're trying to do, I take the purpose of the bill to be reducing the backlog by allowing people requiring that people who have waited too long have the court look at the matter and maybe dismiss them. But the conditional aspect of what the court can do seems like if they were overworked, it might. But I hear you now saying they might not send a matter for caring, but they'd have to respond, and that would probably be an explanation of why they wouldn't send a care in

[Eric FitzPatrick (Office of Legislative Counsel)]: any way. If they were going that route. Yeah. Yeah. Focus on. And maybe an explanation why they were they could choose to defer any kind of ruling if they wanted to. There's no again, as I mentioned earlier, this overarching rule 48 of the proposed procedure allows the court to dismiss in the interest of justice is not a requirement. So the court could respond to the motion and the response by the prosecutor, however it's not fit, set a hearing, not set a hearing, issue an order that says A, B, or C, whatever it might be. But sort of gets required in the process to sort of get started in motion.

[Sen. Robert Norris (Vice Chair)]: Perfect. That's okay. That was me. I like you, but okay. But my question is, my concern is for victims, for alleged victims. I don't see where it really mean, it mentions briefly on page three, under line one k, the attitude of the complainant or victim with respect to dismissal of the case, but I'm concerned about what happens to victims if they suffer monetary loss or or whatever else. Is this something that is the state just is unable to prove this? I guess there's no there's no place for these victims to go, Oh, wow, this is just done all over.

[Eric FitzPatrick (Office of Legislative Counsel)]: Well, assuming, for example, as you just said, that they suffered a minor figure loss of some kind, they would still have their restitution proceeding. Victims fund. They would be compensated out of their crime victims restitution special fund or the crime victims special fund, they're two different ones. So, and I think there are some specific rules within the restitution proceedings, for example, that talk specifically about dismissals not having an impact on the ability of victims to how they How the ongoing situations where the offender has not paid their restitution, how that impacts an ongoing proceeding. So it's a good question to think about that and see if that affects this or not. I don't think it would. I think that those rights that a victim has under the victim's comp and restitution statutes would still exist notwithstanding this,

[Rick Siegel (Office of Legislative Counsel)]: but I will follow-up on that. I don't wanna jump back because I'm

[Sen. Robert Norris (Vice Chair)]: a pinched, but senator Baruth was was talking about SH filing in motion or whatever to the courts. Is this is this something that, because of the pandemic over the course, you you're just ingesting the courts now with the multitude of cases that are just still just hanging out there that file motions on these? Are these folks grandfather dinners or starting date on this? Or

[Sen. Nader Hashim (Chair)]: Yeah. So that was something I was going to bring up towards the end here is I think the question is unanswered. What I would like is either a prospective enforcement of this because if the if the state you know, let's say this passes and the state suddenly has fourteen days to to file literally hundreds of motions, it's that would be on close to impossible, I think. So I think that having it apply either prospectively or creating some sort of tiered approach where there's a case that's, say, three years old, the state has six months to file a motion. If it's four years old, they have four months to file a motion. Could do something like that. But I think having it all happen at once would be insurmountable. Yeah. So that's something that we'll figure out

[Eric FitzPatrick (Office of Legislative Counsel)]: either towards the end or during lockup. Right. That reminded me that there was sort of a tiered approach in Massachusetts, too. Yeah. Another way to think about that same idea. Yeah. Yeah. Thank you.

[Sen. Nader Hashim (Chair)]: Senator Mattos. Just real quick. Will we get Judge zoning to Marley's side?

[Eric FitzPatrick (Office of Legislative Counsel)]: Yes. Is he gonna give us an update on the backlog

[Sen. Nader Hashim (Chair)]: like they did last year? At some point, maybe. Maybe not. I I did ask, if I recall correctly, for the the general update later this year, probably sometime next week or the week after, but, again,

[Eric FitzPatrick (Office of Legislative Counsel)]: Two other things that I'll just point out in the bill so you know where they come from. So we just we're on page two line and we just talked about response, what the prosecutor response has to contain. You look at lines four and five. This is the response may refer to any of the following factors. You see that on line five, then you have this list of factors. Those are 12 factors. Those are the ones I mentioned that the courts under a Vermont Supreme Court case called State V. Serve from 1995. Those are the 12 factors that the court considers when thinking about a motion that's missed under Rule 48 in the interest of justice. So the court already set out those factors. It's not an exclusive list, but that's where those factors come from. So it comes from that case, those are the things, the kind of things that the court thinks about when it decides should this case be dismissed under the writings of justice under Rule 48. Two other quick things, over on page three, you'll see lines five to seven, we mentioned this already. So if the prosecutor for some reason doesn't respond at all, then the court may specifically talk about a remedy there. It doesn't talk about a specific remedy anywhere else, but in that case, the bill says the court may dismiss the case with prejudice. That means you can't revile. With prejudice, prosecution can't revile. Then the last thing starts on line eight, subsection C. You can see, for purposes of this section, the following periods shall be excluded when computing the time within which the trial of any events must commence. So you've got these twelve month and twenty four month time periods, right, that generally apply. This is a long list of periods that are excluded. So if a delay happens for any one of these, basically one, two, three pages of reasons there, those don't get counted. And where that list comes from, that's the exact same list that was in Massachusetts School of thirty six. So that's where that comes from. They use those exact same reasons to allow for the prosecution not to have met that timeframe. That doesn't say you have to include them all or anything, but that's the basis for it. That's why it's there. I think that's it. Yep.

[Sen. Nader Hashim (Chair)]: Committee, any additional questions We from will be hearing from the state attorneys at 12:11. Have you heard back from Camille Brochu from the Well, we we

[Eric FitzPatrick (Office of Legislative Counsel)]: can yeah.

[Sen. Nader Hashim (Chair)]: Okay. Alright. So we'll also eventually hear from the federal office on this. Okay. And we'll figure out some other witnesses as well.

[Eric FitzPatrick (Office of Legislative Counsel)]: I'm sure there's plenty in the amount of time. Yeah. The one thing I wanted to mention was when I was talking about these cases on rule 48, was the state case, which two lead cases. The other one actually called state v Fitzpatrick. Checked with

[Sophie (Office of Legislative Counsel)]: my mother. It's got no relation.

[Eric FitzPatrick (Office of Legislative Counsel)]: So no no concept of

[Sen. Nader Hashim (Chair)]: interest. Okay. Great. Okay. Thank you. Appreciate it. You.

[Sen. Philip Baruth (Member)]: Turns out you have a dark path. They

[Eric FitzPatrick (Office of Legislative Counsel)]: should always wonder if I've got wing of the family.

[Sen. Robert Norris (Vice Chair)]: There's always one.

[Sen. Nader Hashim (Chair)]: A few minutes early, we can just get started with your testimony.

[Sophie (Office of Legislative Counsel)]: Okay. About this. It's been a procedure.

[Sen. Nader Hashim (Chair)]: Request. It was a. Okay. And we'll be talking about your the speed problem. That's what I meant. Yeah. Correction. Yeah.

[Eric FitzPatrick (Office of Legislative Counsel)]: Okay. Good. I So I was gonna listen to that. That's once you're set at the end. Yeah. Correct. Great. Thank you. Yeah. Thank you.

[Sen. Robert Norris (Vice Chair)]: So

[Sophie (Office of Legislative Counsel)]: I should change the time

[Sen. Nader Hashim (Chair)]: I don't know that you need to Is it a public live stream? Because I think when it appears on YouTube, it just it shows the times. It's squishy.

[Eric FitzPatrick (Office of Legislative Counsel)]: Yeah.

[Sen. Nader Hashim (Chair)]: Okay. So we are now switching gears to s two zero eight. We have so busy that into the blessed council here with us. This bill is related to law enforcement identification and masking. This has been a topic that I for all of us have heard about in some capacity or another, and it is something that we are addressing here now, the state of the month. So, Sophie, if you wanna, start with your walk through, we also do have this pretty handy start there. Thank you. Thank you.

[Sophie (Office of Legislative Counsel)]: My my plan was just to walk through on this, and then I have a presentation in terms of constitutional applications. So Oh, sorry. So this I'm so pleased about me for the office of legislative council. It's my first time in this committee, so very pleasant to be here. I picked up this bill from the judiciary team. I've taken some changes in personnel. So, again, as as such, she noted this has to do with anti masking. Just a little bit of background, there are some bills proposed in a number of different states around anti masking for law enforcement. The only one that's gone into effect so far is the California bill. The one that this S. Two zero eight is on is regarding the the new Dora bill, which is called the MELT bill, which stands for Fundating End of Dora's Tactics. There are other bills in Massachusetts, there are more in Tennessee as well. So just by way of background, there has been a lawsuit filed by the federal government against the California bill, which went on full effect on January 1. The hearing on the federal government's bill is going to be held on January 12. So as far as I know where, that bill has actually it was passed in September, but it's actually taken aback. That's January 1 from September.

[Sen. Philip Baruth (Member)]: Okay. Hopefully that is there a stay on it, or is it considered in the course?

[Sophie (Office of Legislative Counsel)]: I believe it's enforced because the hearing is on the motion to enjoin

[Sen. Philip Baruth (Member)]: I see. Moving forward. Okay. And have they abided by it? Do we know?

[Sophie (Office of Legislative Counsel)]: I don't know. I mean, I haven't seen anything from the readings region's on how it's laid out.

[Sen. Nader Hashim (Chair)]: Okay. It's the Ninth Circuit. Right? It's

[Sophie (Office of Legislative Counsel)]: in the district court at this point. This bill proposes to do three things. So to require all local, state, and federal law enforcement officers to clearly identify themselves by their name or their badge or both on their uniform. Also to prohibit law enforcement officers from wearing masks or personal disguises while interacting with the public in the performance of their duties, and then it does list some specific circumstances where masks are permitted. And then it provides a penalty if you violate the law that goes into that with the assigned of up to $1,000 or loss of professional licensure, subrogation for both. So that's just the overall goal of what this bill does. This bill would be placed in Title 20 under the internal security and public safety provisions of the Vermont statute under Chapter 151 of Vermont Criminal Justice Council. And so it would be a brand new section, section 20 three-seventy three. So at the bottom of page one, I think, expresses the legislative intent and the intent of the General Assembly to exercise the power granted to go on by the tenth amendment to The US constitution to protect the health, safety and welfare of its residents and law enforcement officers present in the state by codifying standards for law enforcement identification. Subsection B, line four on page two, it uses the definitions for law enforcement agency and law enforcement officer that are currently in state law, And then it adds on to subsection, subdivision two, law enforcement officer has the same meaning as currently in statute, and then it includes officers of a federal law enforcement agency or any person acting on the proper of the state or federal law enforcement agency. So that would include contractors as well. And then it lists in subsection c, the identification requirements. So as a subsection one, design 12, law enforcement officers will be clearly identified by the officer's name or badge number or both on the officer's uniform. Subdivision two is where the prohibition is on not wearing any mask or personal disguise while performing one's officers' duties with the public. And then subsection three gets into the exceptions, and those are the occasions when a mask would be permissible. So again, it lists out medical grade masks, respirators. And then at the top of the page, the rings, you know, smoke exposure and fire situations, water rescue operations. I looked at little chemical agents designed to protect against exposure to cold during weather emergencies. And then in subdivision four, there's it separates our tactical services unit who are using gear that protects their faces when performing their responsibilities. And subsection B talks about law enforcement officers who are in unattended and unattended drug related operations or assignments who may use a personal disguise when necessary to perform their assignments.

[Sen. Philip Baruth (Member)]: Can I just ask about that? So this administration has been very brave with the use of fentanyl as an emergency that triggers additional powers across the board, including seizing those with but, you know, on much smaller scale, they are saying, you know, ICE agents have this power, the president has this power, because there's a fentanyl crisis. Could they, under this provision, say that, you know, given the situation with drugs coming into The US, this entire

[Sophie (Office of Legislative Counsel)]: armed and law enforcement, girls masked every day. So I don't know what they could argue. You know, obviously they can argue, choose what arguments they want to make. The goal here is, if you're working in undercover and drug related operations, generally the goal of this is to really address more masking in the immigration context. So again, if it's a criminal operation that involves fentanyl, if there are individuals involved in drug operations, then that might be legitimate. But if this is a question of somebody, again, I'm just echoing back to the earlier testimony you've heard around civil regressive things, If goal is to pick somebody up, they want to take them for an immigration hearing or removal law check, but then that would not be an active undercover operation. So I think there would be arguments to be made on the other side if those were raised. Okay.

[Sen. Philip Baruth (Member)]: Thank you very much.

[Sophie (Office of Legislative Counsel)]: And again, the last section here is on penalty. So it provides it to the law enforcement office 758. This bill would be fined not more than $1,000 or is that professional licensure certification or if applicable, both. And then it proposes that the act would take effect 07/01/2026. I've provided a handout, which I know that I see that you have, you can color mine, you print some color, And the goal of this was because the two statutes that were most discussed in the media in 2025, with the New York bill and the California bill, this was really to compare the different bills. So I just wanted to highlight a couple of things. So under definitions of California No Secret Police Act, one of the arguments that's been made in the legal proceedings there is that the law is discriminatory because it includes local law enforcement officers and federal law enforcement officers, but it doesn't include the California State Police. That's not an issue with the bill that's proposed here. This would cover local, state, and federal law enforcement officers. It's not pulling out particular Vermont offices. So I just wanted to provide that for you and then you can certainly see in California bill there is more extensive provisions particularly around requiring law enforcement agencies to have a policy in place to say that they will be, you know, following the rules on facial coverings. So that might be helpful to get them to questions. That's great. Let you know. So

[Sen. Nader Hashim (Chair)]: I know you mentioned you have a presentation here about, before we go to the presentation, are there any questions on the field about? I'm just curious about line seven f, a mask designed to protect against exposure to coal during a declared weather emergency. So if it's, like, cold out, it's not an emergency,

[Eric FitzPatrick (Office of Legislative Counsel)]: but if I'm out snowballing

[Sen. Nader Hashim (Chair)]: in my driveway, I probably Where are you showing pages? Page three, line seven.

[Sophie (Office of Legislative Counsel)]: Alright. So this this would be first law enforcement officer actually engaged in their duties.

[Sen. Nader Hashim (Chair)]: Right. But if it's, you know, five degrees out, that's pretty cold, but it's probably not declared weather emergency. Yeah. Yeah. I I agree with that. I think I know we're not in market right now, but just note for the future. In my opinion, I think that it shouldn't necessarily be a declared weather emergency. I think that, you know, if there's, you know, certain rescue on the side of a mountain looking for lost gear, they're all probably gonna be wearing masks. And so I think we can can work some of that, but thanks.

[Eric FitzPatrick (Office of Legislative Counsel)]: I I was just curious.

[Sen. Nader Hashim (Chair)]: Yeah. If there's an infection. Good catch. I mean,

[Sophie (Office of Legislative Counsel)]: one of the issues with with that, I think is anyone who had an expert since we were just about two symptoms. You know? Well, it's cold.

[Eric FitzPatrick (Office of Legislative Counsel)]: Anything comes

[Sophie (Office of Legislative Counsel)]: to It's cold. I have a. So that that would be something to think about how you would graph that so it's not too forward. Yeah. Probably.

[Sen. Nader Hashim (Chair)]: And then just curious on line 17 there with a penalty, it says thousand dollar fine or lose the officer's professional licensure or certification if applicable, or both. So that means, like losing your professional licensure or certification wouldn't apply to a federal agent, because State of Vermont doesn't have the ability to

[Sophie (Office of Legislative Counsel)]: That is a question that, for the committee to think about is what the enforcement mechanism would be if this bill were to advance, because there would be restrictions on the ability to impact federal officers' licensure or certification?

[Sen. Nader Hashim (Chair)]: Could they be defined as well? Yeah, that's a good question. Obviously, we wouldn't be able to make any administrative changes regarding licensure of the federal agent. Although it's possible that there could be a recommendation to do so for the Vermont Grants County Council a state or local police officer deputy. It doesn't necessarily mean that that is what would happen, but it is possible.

[Sophie (Office of Legislative Counsel)]: Senator Mattos can I just wanted to verify, and you just did for me that this doesn't only apply to federal agents? It applies to all law enforcement operating in Vermont. Yes. Yes.

[Sen. Tanya Vyhovsky (Member)]: And I would assume we'd

[Sophie (Office of Legislative Counsel)]: be able, to your point, to fine someone that was operating in the state, say a federal agent.

[Sen. Nader Hashim (Chair)]: That's I think the bigger question that we would have to have a lengthier conversation about. The question that was swirled around my head earlier was, so for example, if a federal agent happens to be drinking on the job and they get a DUI, they're not exempt from the criminal charge because obviously drinking on the job has nothing to do with federal law enforcement. However, I think that the federal government could likely make an argument saying that you can't impose this penalty for federal agents wearing masks because them being anonymous is necessary for their law enforcement duties and what they're doing. That's what I suspect they would argue. And so that's the constitutional question that we have to do

[Eric FitzPatrick (Office of Legislative Counsel)]: too long for a while.

[Sophie (Office of Legislative Counsel)]: I think there would need to be some mechanism, but they're not to how you would handle it as well. So because, again, this would be under the Vermont General Justice Council, so they would have authority to address for a local law enforcement officer, but there's gaps there in terms of what the enforcement has. So

[Sen. Philip Baruth (Member)]: this yes.

[Sen. Nader Hashim (Chair)]: Is it black, I should ask, is there any bit civil in this context?

[Sophie (Office of Legislative Counsel)]: That's at the moment, it's yes. It would be it looks like an invention of civil penalty, but it's about $2,000. And, again, if you look at what New York and California, New York, it provides that it would be a misdemeanor. Punishable is a misdemeanor. And then in California, it's a willful and knowing violation. Punishable is an infractional misdemeanor. And then criminal penalties not applicable if the law enforcement officer was acting as as an employee of an agency that has a written policy. And then they also provided in California the law would remove some of the immunity, privileges and immunity that a police officer might have in terms of inter charged with a false arrest or, you know, tortious conduct. So they have a a different approach. So this is different than New York and California. Yeah.

[Sen. Nader Hashim (Chair)]: And I think the issue that we could potentially encounter is if it is a criminal charge compared to a civil charge, like, essentially a private victim, that's where I think the challenges could arise. Will we have any more conversations with the taxpayer?

[Sophie (Office of Legislative Counsel)]: See to Sean. Senator Wilson.

[Sen. Tanya Vyhovsky (Member)]: I have a financially related question that you may not be the right attorney to ask, and that is what is the penalty for not paying an administrative fine, or is there one?

[Sophie (Office of Legislative Counsel)]: I'm not sure. Okay.

[Sen. Philip Baruth (Member)]: Have a number five?

[Sen. Nader Hashim (Chair)]: They go to the backlog. Sorry, it's easy. Yes. So

[Sophie (Office of Legislative Counsel)]: this does raise some constitutional issues. I'm sure this committee is familiar with the with a lot of the constitutional issues I'm gonna mention, but I just thought it might be helpful to go through that. So Which is Having different type of issues. Okay. The first was to talk about the the tenth amendment. Sorry. Put it on the. The tenth amendment, which is mentioned in the statute, in the bill, and that essentially provides the powers retained by the state and the people, and those powers that aren't specifically delegated under The US constitution. So essentially, any powers that aren't specifically given to the federal government and not explicitly withheld from the state are reserved to the state. So for example, things that are specifically delegated to The United States are things like coinage, preparing war, regulating interstate commerce, but the state has the ability to regulate where the constitution doesn't reserve those powers to the federal government. Okay. Anti commandeering is when the Supreme Court, when the federal government tries to force the states to do things. So there's kind of a balance between anti commandeering and then what we'll talk about later, which is intergovernmental immunity, and they're kind of opposite sides of the same point. So on the one hand, The US can't force the states to do things, and the other hand, the states can't force the federal government to do things. So anti command hearing here, and again, just to talk about it in the immigration context, would be things around sort of forcing states to enforce federal immigration laws, and there's extensive decisions on that, that states have the option to assist ICE, but they're not required to do so. And I know you had last session, those bill around 2 87 gs contract. So again, those are agreements that states can voluntarily enter into with ICE, where they can use their local state law enforcement to assist, but there's no requirement for states to do that.

[Sen. Philip Baruth (Member)]: Can I ask, oh, please go ahead? Commandeering, one of the tools federal government seems to be allowed to use is withholding federal money unless you do bags. That doesn't fall under the Supreme Court's definition?

[Sophie (Office of Legislative Counsel)]: So there's cases that go in different directions on that. So it can depend on how much money. So if it's the state, federal government's going to withhold 10%, we have a case on that, have a long case from a while ago, but where the federal government was going to appoint 10% of the transport, and the Vermont court held that that, in the big scheme of things, the whole size of the budget, the amount of money that was coming in from the federal government to support transport, that that was not a violation of anti commandeering.

[Sen. Philip Baruth (Member)]: So it didn't rise to that level.

[Sophie (Office of Legislative Counsel)]: But again, this is a hot topic right now. I mean, I think these are all questions that are going to percolate I'm

[Sen. Philip Baruth (Member)]: thinking about gender affirming care, and there are a series of threads out there that if a state continues to allow gender affirming care, the whole raft of health and human services money will be cut off. Seems like what you're saying is the argument for Vermont would be that that scale and scope reaches the threshold there.

[Sophie (Office of Legislative Counsel)]: And there is a Second Circuit decision that dealt with grants, and there was an argument where states were saying, well, we're being excluded from these grants because we've got policies that the federal government doesn't agree with, And the second Circuit, which is the Circuit that governs Vermont at the federal level, held that it was the grant, so you're free not to take the grant. So, you know, again, there's there's lore out there, but it's this is definitely a gray area that's going to be percolating up. Okay. Right now. So yeah. So this bill really is not getting into business issue. I just like it because it is it's in the mix of the constitutional issues around inflation. But here, the bill you have to await is not implicating. You know, this is a bill that you would be doing, not something the federal government is seeking to have for model to. I can get into the next one. Okay. And then under Vermont's constitution, we specifically have in our constitution chapter one, article five, the state police powers, so that the people of the state have the sole and inherent exclusive right of governing and regulating the internal police are the same. So although this bill is specifically talking about law enforcement, the police power is generally the power to govern. It's not limited to police, so that's just a coincidence here. But essentially the state has the authority to pass laws that they believe are in the best interests of people of the state for the health of welfare of the state. And so that I think is part of the reference here with the legislative intent is referencing tenth amendment and then looking at specific language on the legislative intent is to protect health safety of the residents and law enforcement officers present in the state by codifying the standards and application standards. It's okay.

[Sen. Nader Hashim (Chair)]: One question regarding severability. I see that this bill would be, well, bill or any act is covered by one BSA two fifteen. Is there, let's say hypothetically it's found that this can't apply to federal agents, do we have to change any of the wording so that it will continue to apply to all other law enforcement in the state? Because I'm seeing that we have a our definition there on page two, line seven. Actually, actually no, it's so it does spell out, and it does differentiate between local, state, or federal, so I think I'm stamping my own button there.

[Sophie (Office of Legislative Counsel)]: But I think essentially what would happen is if it was held unconstitutional for the state to regulate federal law enforcement officers, the law would move forward as it being applicable to our state and local, but it would just apply to federal. Interesting thing. So switching to on the federal side, there's the supremacy clause of the US constitution. Again, and this essentially provides that where there's conflicts more we'll get into this in a second, but that the federal law is the supreme law of the man. And so typically, what the US Supreme Court has done is they've done this through preemption, which I'm sure you've heard about before, but there are three types of preemptions. So there's express preemption, which is when the federal law explicitly says we're in charge of this, and the states can't regulate in this area. Field preemption, where there's just such extensive regulation on parts of the state, on parts of the federal government that there's no room for the estates, and then conflict preemption, which is essentially when it's impossible for someone to comply both with federal law and with a state law. There are a couple of arguments that can be raised that derive out of this, the supremacy clause. So one of them is supremacy clause immunity and the other is intergovernmental immunity. So supremacy clause immunity essentially prohibits states from undermining federal law by prosecuting federal officials who are properly carrying out their federal duties. It cites here an 1890 case because the Supreme Court has really not addressed this particular immunity for over a century, but the lower courts have, and so they've evolved this two part test that's shown on the screen. Interestingly here, in this particular bill, you're talking about criminal prosecution at this point. So I don't know that an argument could be raised that this is a violation of the supremacy clause immunity. But, essentially, if if you did have criminal prosecution or, you know, federal law enforcement officer was potentially exposed to a criminal prosecution, the two part test is, was the official doing something authorized by federal law, and they had to vote for these would have to be answered as yes in order to avoid prosecution. Were the official's actions necessary and proper to fulfil their federal responsibilities? Senator Mount? Is there a definition of necessary and proper, or is that subjective? It's, yes, that kind of this situation, these are very situation dependent provisions. To move this around. Okay. So looking at that, is there authorization for federal law enforcement officers to mask? There is no current federal statute or officially enacted policy or rule that explicitly authorises or requires masking by federal officers. So one argument is no, there's no federal authorisation to mask. On the other hand, officials with Homeland Security have publicly stated that they're leaving it up to individual officers to choose whether to mask. So the other side could argue, well, yes, there is authorisation because the Department of Government Security has said we can choose to do it.

[Sen. Philip Baruth (Member)]: But have they publicly stated it, or is it a rule?

[Sophie (Office of Legislative Counsel)]: There's no formal rule, but there have been statements by Christine Noam and other people within the Department of Homeland Security.

[Sen. Philip Baruth (Member)]: But wouldn't we still have authority if they haven't expressed it as a rule or a statute?

[Sophie (Office of Legislative Counsel)]: Well, this would be the argument if, again, if you were getting into this, the argument on that two part cast would be, are they engaged, are they veteran and are they authorized to do this? And the argument would be, on one side, no, because there's no statute or rule that requires them to do it or permits them to do it. On the other side, well, we're being told by our supervisors that we can.

[Sen. Philip Baruth (Member)]: Yeah. And

[Sophie (Office of Legislative Counsel)]: as far as identifying oneself, because that is part of this bill as well, the National Defence Authorisation Act does require law enforcement to visibly display their identity and the name of their agency when responding to a civil disturbance. And then ICE agents, under current regulations, are required by law to identify themselves as immigration officers at the time of an arrest.

[Sen. Philip Baruth (Member)]: Because it seems like there are, I've seen film of a number of these arrests where they refuse to identify themselves and still take people in custody. So I assume those are being litigated individually when they happen.

[Sophie (Office of Legislative Counsel)]: Yeah. I I mean, that someone's supported and removed from the country, and I don't know what action they would have to

[Eric FitzPatrick (Office of Legislative Counsel)]: Right.

[Sophie (Office of Legislative Counsel)]: Do it at that point.

[Sen. Nader Hashim (Chair)]: Senator Mattos? Just along those lines that, you know, there's a video clip or whatever. I don't know if you know the answer, but they're required to identify themselves how many times. Like, if the video doesn't start until after the ICE agent says, I'm so and so with ICE, then the video starts. Every time after that, if they're asked, do they have to answer? If they answer at once, does that satisfy the So the requirement?

[Sophie (Office of Legislative Counsel)]: So the regulation set says at the time of the arrest, the designated immigration officer shall, as soon as it is practical and safe to do so, A, identify himself or herself as an immigration officer who's authorized to execute an arrest, and B, state that the person is under arrest, aggravated for the arrest.

[Sen. Philip Baruth (Member)]: Okay. That practical and savior clause strikes me because the argument that's been coming down from homeland's period is that the masking is necessary because otherwise these people won't be doxed and they'll suffer consequences for the operations that they're lawfully doing, which is true in a way. There are people out there looking to identify ISIS who are going fast. So I I have seen online where somebody takes their mask out for some reason, screenshot, and then that person is identified and moved around the internet. But it seems like then you're just getting rid of that little piece because anything would be protected by identity or per se.

[Sophie (Office of Legislative Counsel)]: Yeah, I mean, that's certainly the argument that's been raised by the federal government, both in media and then in the California case, that they have to do it for this reason.

[Sen. Philip Baruth (Member)]: But it seems like that just undermines the whole statute because in this day and age, anybody could claim that their identity makes it vulnerable to online retaliation.

[Sophie (Office of Legislative Counsel)]: And there certainly have been stories of impersonation. You know, that's the other piece that gets back to the health and safety and welfare is, you know, there definitely, you know, of people in less than age in ICE offices to, and that people, So, yeah. That

[Sen. Nader Hashim (Chair)]: part, I think it was at the end of the definition there, when safe to do so, could you make the argument that when the individual's back in the car, that is one of the officer feels it is safe to do so for the exact reasons that Senator Baruth brought us?

[Sophie (Office of Legislative Counsel)]: Yeah.

[Sen. Nader Hashim (Chair)]: With with that, you know, like, argument that they might have made. Somebody could make that a few times.

[Sophie (Office of Legislative Counsel)]: Yeah. I never got to.

[Eric FitzPatrick (Office of Legislative Counsel)]: It doesn't happen. I don't know.

[Sen. Nader Hashim (Chair)]: Yeah. But I yeah. And then I think what what is differentiated here with our bill is that this this doesn't necessarily require an officer, ICE, or otherwise, to say to verbally say, I'm officer so and so with ICE rather requires that there is some form of identification on their uniform Mhmm. And without a mask, unless involved into the exceptions. But I'm not does the does that second bullet point require them to be verbally identifying themselves and taking that time to do that?

[Sophie (Office of Legislative Counsel)]: Yes. It says identifying himself or herself as an immigration officer is authorized to execute an arrest. Okay.

[Sen. Nader Hashim (Chair)]: And compared to ours, is it correct to say then that ours that this bill doesn't require necessarily verbal identification, but does require that they have Right. Or third? Thank you. Not to go further down this hole, but civil disturbance, is that covered by, like, in ICE?

[Sophie (Office of Legislative Counsel)]: So that is is a separate statute, and I can look further into that. But it this is just in terms of where our federally law enforcement officers are required to identify themselves, and that is one of the areas, is under the National Defense Authorization Act, and that's for federal law enforcement. And again, I don't because my head is superhassive with that. Oh. But I can double check on that. But the only one that's specifically with the ICE, there's a regulation, and that's the the language on the bottom. Okay. And there's no there's again, there's nothing in the regulations for ICE officers that talks about asking or not asking. Mhmm. It's only this is the only case. Seems like they're asleep. There we go. Yeah. Alright. And then inter intergovernmental immunity, this is the other defense that comes up under the the supreme the supremacy clause. And this is our state local laws that either regulate The United States directly or discriminate against the federal government and those with whom it deals. So again, that California bill excludes California state police, so that's one of the arguments the federal government is making in that case, is that it's discriminatory because it's not covering all California that's sort of singling out, you know, as local California law enforcement officers. And then regulating so direct regulation, you know, again, the what likely the argument would be is that it constrains the agents in performing their their employment. There is a case out of the Supreme Court back in the nineteen twenties that said, where The US hasn't spoken, state law can validate by the effects incidentally the mode of carrying out federal employment duties. So, again, you had referenced earlier, Senator Hashim around being drunk on the job, whichever. I mean, there are certainly you can state laws that apply to federal officers when they're acting beyond the scope of their duties. So the question that this bill raises really was going to go to how incidental is the bill to carrying out those federal law enforcement duties. And again, there's a case out of the Seventh Circuit from 2022 that held that Nords, Victor and Scotland, to get to The US, can be constitutional even if they indirectly increase costs, provided that the law imposes the costs in a neutral and non discriminatory way. Again, I don't know here that cost would be an argument, but in that particular case, it was to do with not allowing ICE to take over facilities and, you know, and on. And there was this a a state law that said, no. You can't do that. And then the argument was we are discriminating against us. And it was like, no. It may cost you a bit more to, you know, house people elsewhere, but, you know, we could do that. But the discrimination against federal government wouldn't apply here because this is applying the whole law enforcement. Okay. It would really be more of that first question whether you're regulating The United States directly.

[Sen. Nader Hashim (Chair)]: Thank you. That was a helpful presentation. Nader, do we have any questions for the Dutch Council? I don't think so. I

[Sen. Robert Norris (Vice Chair)]: got one question. Don't know who it's for. So in in doing the walk through, reading the existing. It I don't know if any law enforcement officer in the state, state police, that mask themselves. I do. Not aware of that. Okay? And you can have your peace out of So are we if someone says if it says ice across their chest or if it's just ATA, whatever they say, and they verbally identify what agency they're from and whatever else, have they met the criteria under this bill, or is this just a mask?

[Sen. Nader Hashim (Chair)]: If they

[Sen. Robert Norris (Vice Chair)]: don't think they're mask out there in violation, does that say we're looking at?

[Sophie (Office of Legislative Counsel)]: It has two pieces. Two pieces. It's both. One is identification Mhmm. By your name and your agency, and then or the name and badge number, and then the other one is the mask in piece. So there's there's two pieces to it.

[Sen. Robert Norris (Vice Chair)]: So in looking at the tenth amendment, I'm wondering, by them still having a mask down, at what level did that rise to the protection and safety of of public affairs just because they had a mask on? Understand identifying yourself. I go out 100% here. But what threat is being imposed because they have a mask? Well, interpretation, I would be a big thing here.

[Sen. Nader Hashim (Chair)]: I don't know if that's necessarily a question for Ledge Council.

[Sen. Philip Baruth (Member)]: I'm I'm saying why. There's actually, there's a whole list comparison chart. So from California, for instance, the arguments are listed like this. Routine use of facial covering by law enforcement has significant implications for public perception, etcetera. Facial coverings limit nonverbal communication, increasing risk of conflict of isolation, etcetera. So here, there's six rationales for how it affects public safety. That's California, correct? Right.

[Sen. Robert Norris (Vice Chair)]: I mean challenge constitutionally?

[Sen. Nader Hashim (Chair)]: Not because of the legislative intent, because it is discriminatory based on the exclusion of California state police.

[Sophie (Office of Legislative Counsel)]: And also that it's a direct regulation for it's interfering with our ability to carry out that it So,

[Sen. Philip Baruth (Member)]: I mean, I think there are a number of arguments that suggest themselves to me, one of which is that we we don't in America, we don't have masked agents who don't identify themselves and force people into cars. When that happens, people, I think, are right to be alarmed and confused and to try to fight or stop that from happening. And that risks escalation, people getting shot, etcetera. So I think normalizing masking and not identifying is normalizing the situation where risks are greater than they are today. Public safety risks.

[Sen. Nader Hashim (Chair)]: Quick interjecting here. Is Kim McManus on the Zoom? I just don't wanna go into her. She's not on his book.

[Eric FitzPatrick (Office of Legislative Counsel)]: Other

[Sophie (Office of Legislative Counsel)]: questions? I will simply add that I do know of at least one instance where political law enforcement was masked, and that that did create quite a bit of public concern. Yes. So so I I am aware of this officer's office of law enforcement.

[Sen. Robert Norris (Vice Chair)]: Do you tell us

[Eric FitzPatrick (Office of Legislative Counsel)]: what the great example that was? Or

[Sen. Tanya Vyhovsky (Member)]: It it was a Williston police officer, and I've spoken to the chief of Williston police, and they dealt with it quite well, actually, quite clearly stating that that, while not in their uniform code, will be added because they are completely against that behavior for all of the reasons that senator Baruth just

[Sophie (Office of Legislative Counsel)]: stated. Thank you.

[Sen. Nader Hashim (Chair)]: Mhmm. Thank you for your testimony. I'm sure we'll we'll have you back in as we move along with this, Phil.

[Sen. Philip Baruth (Member)]: Good to see you. Thank you. Well, I do have a question, but you're not ready for this. We

[Sen. Nader Hashim (Chair)]: can take a break until Ken shows up about being available, and we can go about this.