Vermont Legislature SmartTranscripts:

[Senator Nader Hashim (Chair)]: Welcome back to Senate Judiciary. It's January 15. I mistakenly said we'll be hearing from a professor at 10:00. That was my mistake in hearing from a professor at 10:30. We have Commissioner Morrison from the Department of Health and Safety here to provide the department's input on 02/2008 and 209, or I'm sorry, just 208. Hope it's just 208. It's 208. Will yeah, and war is always going.

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: Okay. Senator, my name is Jennifer Morrison. I'm the Commissioner of the Department of Public Safety. In my background, I have twenty eight and a years in the municipal law enforcement service, and I have worked at the Department of Public Safety for five and a half years. In my capacity as commissioner, oversee the Vermont State Police. Relative to Bill S-two zero eight, there were a couple of areas that you asked me specifically to weigh in on. I wanted to make a couple of quick statements and then move to those observations plus a couple I have's. I'm happy to help you clarify the exceptions to a no mask statute, but I actually think there's a better path forward to achieve the same goal. I would recommend that you either direct the Vermont Criminal Justice Council to adopt a rule as part of the existing code of conduct, or that you live in the direction of requiring a statewide policy on this topic. And I can tell you that the Law Enforcement Advisory Board has already taken this matter up as of Monday morning's meeting. They added it to the agenda, because their meeting fell right after our legislative chat on Monday mornings, I let them know about this draft language, and they immediately took it up and they have added it to their next agenda, their next meeting's agenda. So the Law Enforcement Advisory Board has already queued up to recommend policy and whether you choose to require that the council make it mandatory or advisory would be up to you guys, matter of what your intended goal is. The reason why I would leave it out of statute and in the realm of the council is that it brings any alleged violation into a well established and consistent framework statewide. It does not it can't be impacted by 14 different prosecutors having 14 different thoughts on the matter. It would come into a one statewide consistent framework for review and potential sanctions for misconduct. I also think it could be written in a way that would help you achieve your goal further, which might include broadening the culpability from just the individual officer to an immediate supervisor or the chief of the agency, the head of the agency, the CEO of the agency, if it's treated in a misconduct realm as opposed to any criminal court realm. And obviously we don't want to do anything that would, I don't think this would become a statute that's used a lot, but you don't want to do anything to contribute to the existing court case backlog. So with that being said, do think there's a better way to do this. If it were to remain in statute, I would recommend that you could reduce this to almost one paragraph by saying what it is you want upfront, that it shall be unlawful for any law enforcement officer in Vermont in the course of their official duties to obscure their face for the purpose of hiding their identity. I mean, that's what you're really after. And I think that just saying it affirmatively leaves a lot less room for wiggle room inside exceptions. So that's my opinion, is just say what you want and make it be so. On page one, line 12, when you reference badge numbers, would recommend that you change that to identify themselves by name or radio or badge unique number. Unique radio or badge number. Most people would argue that we don't wear badge numbers, that we have radio call numbers. That's how you identify them with radio. And I think that there's, in some agencies, some the sheriffs have a unique numbering scheme that I'm sure the senator could fill you in on, but I would recommend that we don't just use the word badge number, that unique radio or badge. On line two, that appears again. I'm sorry, page two, line 13, that badge number appears again. On page two, line 19, A law enforcement officer may wear a medical grade mask that is surgical. Unless you tease that out, that that could be worn and be acceptable when its real purpose is to disguise your face. Like, So, again, I think you need to affirmatively say what you don't want and not bother with all these exceptions, which is my opinion. I noted that there were a few things that really aren't teased out in the exceptions. You asked for input on line seven on page three, which is a mask designed to prevent against exposure to cold during a declared weather emergency. I don't know what a declared weather emergency is, so I think that would have to get changed. Obviously, a balaclava is a reasonable headgear if you're walking a beat in today's weather. If you're a motor, if you're on a snowmobile, obviously underneath your helmet, you're going to have that type of gear and you're going to probably leave it on while you're interacting with people on the trails, right? I didn't see exceptions for ATV or motorcycle face coverings for protection, also bandanas, whatever it is that people wear. Search and rescue, likewise, again, in plundant weather of any kind. It could be hail, it could be pelting rain. And this, by way of saying all this, I'll go back to the exceptions make it more likely that you're gonna get people who wear them and claim an exception that is not necessarily what you are after in drafting this bill. And then on page three, line 11 go ahead, sir.

[Senator Nader Hashim (Chair)]: I got a quick one on there. Go ahead, sir. So what you're suggesting is it's not even optional for officers on their own now. They're all unaware of a mask to protect themselves from exposure to whatever they may feel.

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: No, they

[Senator Nader Hashim (Chair)]: should Whatever they have, they should be able to.

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: Yeah, 100%. They should be able to. I mean, I live with an immunocompromised person. If I were still on the road and I were going into a crowded space, I would probably be putting on a mask of some sort to protect my husband. But the way it's worded right now is it says that it is an exception to wear a medical grade mask, either a KN95 or an N95 or a surgical mask, but it doesn't say to protect you from airborne pathogens or something like that. So again, I think we've already seen this in other parts of the country where it just becomes part of their regular gear to wear a surgical mask when the purpose is to obscure their face, not to protect themselves from, necessarily protect themselves from malware pathogens. I think you should just help say what you don't want, and I also don't think it should be in statute. It should have been dealt with by the council. The last area that you asked me to weigh in on was on page three, line 11 related to tactical services unit. Team officers may use gear necessary to protect their bases from physical harm while performing TSU responsibilities. You could say that this terminology is not incorrect. We happen to call our special team TSU, but tactical team, that nomenclature would be commonly understood to be any rapid entry team, any emergency response team is what they call their team up in Burlington, SWAT, some people still use that nomenclature. I think that the way you've worded it would be easy to suss out, that people know what that means. Okay. So that's my feedback on it. I clearly understand what you're trying to accomplish. I think there's an easier way by doing it through the council.

[Senator Nader Hashim (Chair)]: Thank you. Your testimony is really helpful. I think one of the or one of the things that I'm trying to think of or figure out now with your recommendation is, you know, obviously, part of this is also in response to the concerns about federal agents that are wearing masks, which is something that we've seen a lot more of over the last year. And do you can you share any input on if this were to go through the council or the statute were to say statewide policy shall be developed, would that be able to also incidentally, affect federal agents engaged with law enforcement? No. The council has no jurisdiction over federal agents. I I would I I imagine that you would

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: have legal experts who could advise you on whether or not a state tax statute can be employed against a federal agent in their official capacity. Would imagine they have something related to qualified immunity or other protections if they're in the fragrance of their official duty.

[Senator Nader Hashim (Chair)]: Yeah, and so that's what we're trying to suss out here and avoid doing what California did by kind of separating agencies into groups and having it apply to some agencies and not others, which was half of the reason they got sued. Hence the reason we were trying to put it in statute in a fully encompassing way that doesn't specifically target any one particular group of law enforcement, but law enforcement generally under the Tenth Amenden. But, you you you raise a lot of good and helpful points. So thank you again for troubles.

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: Absolutely. I am wondering if currently and forgive me. It's been a bit since I've gone through all the language around the council But a if this were in statute and a local or state officer violated it, would that because they violated the law, would they be able to be disciplined that way by the council? I mean, if this were a statute, it could be charged criminally is the way you've envisioned it.

[Senator Nader Hashim (Chair)]: But it's Civilly. Just to just to Civilly?

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: Yeah. Okay. If you directed the council statutorily to create this as part of code of conduct or as a policy, to consider it as misconduct, they would not be able to be charged simply, but they would be answerable to the council for whatever level of misconduct that bucket this it falls in the category a and category b misconduct. So it would be handled administratively through the and it could impact their certification or other they have the ability to take other actions besides suspending or terminating. I guess what I'm wondering is if an officer violates the law, is that grounds for potential misconduct by the council? So if you left it in statute and there was no tethering it to the existing council regulations, yes, there are provisions, and this is an area you'd want to talk to their, to Christopher Cowell or their attorney, but there are, in the misconduct buckets, there are provisions for any violation of the law. So, I mean, that could be anything from a hunting and fishing violation to something like this or something else, but it being a civil violation, you know, I I think it was dealt with, like, a world's problems. That's my guess. And would it be possible, and this might be actually a question a question for our attorney who I not sure it's gonna come up at the moment.

[Senator Tanya Vyhovsky (Member)]: Or Oh, you are the right attorney. You're the attorney on this.

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: I am not being made interested at the moment.

[Senator Tanya Vyhovsky (Member)]: Okay. I'm happy to report that. Okay. And so I guess but I my question for for you or maybe the attorney is could we do both? Could we do the put it

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: in statute and explicitly allow the criminal justice counsel to consider this misconduct?

[Senator Tanya Vyhovsky (Member)]: And again, you're not the right person to ask, that's okay. I'm not the right person

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: to ask, but I've gotta I'm quickly doing an inventory of my brain, and yet I would guess that the answer's yes, but you would run into the same issue as they did at the beginning, which is you have 14 counties that might have different political persuasions and have different I mean, at the end of the day, isn't the point to treat all law enforcement officers the same under the second amendment? And if you have 14 different prosecutors weighing in on how to interpret that, you have the potential for inequitable treatment right off the bat. Brings up a larger concern about inequitable treatment. Period. Yeah. Sure enough. Sure enough. So anyway, I I I understand what you're trying to accomplish with this draft language. Know, I just think there's an easier way to do it, but that would probably gain compliance from all with no jurisdiction over our federal partners, and I'm not sure we can now stick for them anyway. Senator Mattos,

[Senator Christopher Mattos (Clerk)]: you talked about the council and then you had met William on the legislative day or whatever it was. I'd You wanna get whatever we can do. I wanna get it right. I don't wanna just rush because it's Yes. That have happened recently. What's kind of the process for the council for looking at that for the next eighteen years?

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: So the law enforcement advisory board is a separate entity from the criminal justice council, but it is frequently where matters are referred to by the legislature or by the governor's office to begin drafting policy and to revise policy, receive input, etcetera. That that is how policy is related to pursuit and various other things get formed. And then they are elevated to the council. Once the LEAB says, okay, we think this is a done draft on our end, it gets handed off to the council, and they have a broader number of people on the council, and it is passed to their Voltage Council, and then they go through the process of taking on it and then voting to adopt it and adopt it. So they also the council also has a specific subcommittee that deals with misconduct, so it would probably go from the LEAB to there and then up to the floor of council. Okay.

[Senator Christopher Mattos (Clerk)]: Certainly. It'll go to a lot of the stakeholders and Yes. Really, you know, that's how I think you get Yes. Better, not quote unquote buy in on a policy. Right? And then it goes through and people have input and Yes.

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: It'll be considered from many vantage points, including, non law enforcement partners who have a large number of seats on the council right now. Okay.

[Senator Tanya Vyhovsky (Member)]: Again, may not be the right you may not be the right person, but

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: it's sort of and that my question is if you have a sense of the average amount of time it takes for a policy to go through that process, And you may not tend not to Well, be able I have a lot of experience with policy and with the LEAB and the council. This is not nearly as complex, controversial a policy as pursuit use force and some other policies that have bubbled up through that pipeline. So I would guess that it could be done within six to nine months. Would be willing to bet that the LEAB could pass it off to, the council within six months, and the council would have whatever process they undertake. I can't speak for that. No. Know you've got it, which is why I, again, want to acknowledge that this is the thing I'm doing today. I'm asking people questions that maybe they're not. Well, it's specked me with it, but it's based on thirty five years of experience with system. Not just with me. Thank you, Chittenden. Yeah,

[Senator Nader Hashim (Chair)]: think there's some really flexible ways of love, I guess, but for the purposes of making this all encompassing and not creating silos of different law enforcement that are subject to different rules, going to that federal question. I'm wondering if it makes sense to have a statute that makes this essentially a traffic ticket violation, civil violation and leaving and having that violation apply to all the categories of law enforcement candidates after the LEAB and the BCJC come to some sort of agreement as to how to manage the misconduct aspect of it, and also coming up with better definitions for things like the old weather issue and some of the others that he raised earlier, does that seem like a piece of old approach?

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: Shooting from the hip, I'd say that what I like about what you just proposed is that it introduces a hearing officer who can be a neutral arbiter of whether or not the reason that the law enforcement officer was wearing a mask is reasonable. I think what this doesn't address, that this proposed language doesn't address that has to be considered as reasonable, is that there are instances where law enforcement officers, whether that's local or state or federal, are identified for legitimate conduct in uniform and are doxxed and harassed and their families suffer. So there are legitimate reasons that may not appear in here that a law enforcement officer might protect their face in certain circumstances. That might be the movement of a high profile prisoner. That might be even an action of speech and civil unrest. It could be, you know, it could be a reason. So I think introducing someone that can weigh the topic of circumstance and make a decision, that's appealing in that it's one, not a counsel of some political appointees, some do you see what I'm saying? Like, one person who's evaluating the circumstance. So that appeals to me from what you just mentioned, but you'd have to ask Director Brakell what would happen in the current scheme if a law enforcement officer got a ticket. I'm not sure that would rise to that level of scrutiny. I just don't know the answer to that. Mercifully, I don't know the answer to that.

[Senator Nader Hashim (Chair)]: Okay. I'm just gonna I'm just gonna let you know. Has been out in conversation. Thank you. Well, that's all I have at the moment. Any other questions I'll say about.

[Senator Christopher Mattos (Clerk)]: Just real quick with the based off what you just said with the you know, having the statute directing LEA, do you have directing

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: Law enforcement advisory board.

[Senator Nader Hashim (Chair)]: Yeah. Does

[Senator Christopher Mattos (Clerk)]: that cause confusion about who kinda has jurisdiction over an issue or no?

[Senator Nader Hashim (Chair)]: I think could. That would probably also be a question for director Patel. What I envision is

[Senator Christopher Mattos (Clerk)]: sort of, I guess,

[Senator Nader Hashim (Chair)]: a belt in suspenders approach where you have this civil violation that would apply indiscriminately to any law enforcement that is violating what we have in statute,

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: and

[Senator Nader Hashim (Chair)]: what we would have in statute would come from the recommendations of the LEAB, the justice counsel about about the better language without the exceptions, but also the misconduct process because we can't, as a state, do any sort of misconduct process against federal agents for law enforcement. What we can against local and state. Well, that's yeah. That's that's that's

[Senator Christopher Mattos (Clerk)]: the only thing. Because my thought is if you have two folks on the road speaking LEAB and then also state's attorney, If the state's attorney is the first one to make the action, you're gonna get 14 different responses, and I don't know if it causes confusion throughout the state about which way you go about handling one of these matters.

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: Don't you have to answer the fundamental question of whether or not a Vermont statute would be applicable to a federal officer? Because if it's not gonna be applicable to a federal officer, you gain nothing from I mean, it's a feel good measure at that point to pass the statutes. Then you could go directly to directing a council to add it as a type of misconduct or to have a mandatory policy.

[Senator Nader Hashim (Chair)]: So, my understanding from the initial testimony that we have from the deputy so that we'll probably testimony that we'll have about ten minutes, is there are in certain circumstances ways that we can enforce state laws against federal agents, but it cannot be discriminatory. And also it does take it to a much more challenging level to create a criminal charge against a federal agent. And then there's also the argument of are we interfering with a federal investigation, would be problematic. The two problems that California ran into was that they did discriminate. They created different prophecies and made them accept those people to be law enforcement. They also had it as a I believe they had it as a criminal charge. Thank you. And and so the federal government, my understanding, their lawsuit alleges that California stat would discriminate against the federal government, that they're being treated differently compared to the local and state law enforcement. And the statute will interferes with their with their investigations. So I guess I I mean, I I think the question, at least in the courts, is unanswered at the moment as to whether or not under the tenth amendment a state can pass this type of law. I think we'll if you're able to stick around, think we'll hear from a professor here soon. Like, who will articulate it much better than I can.

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: I have to go back to headquarters. However, I would think that if you if you don't get that answer settled, you'll get two thirds of what you're looking for by moving through an already established framework and a council. I don't I just don't know the answer about whether we would have anything to coerce the choices of federal agency doing legitimate law enforcement work in Save A Mime. I mean, I'll be curious what the final answer is too, and hopefully, we'll have more in the next few weeks. Okay. Thank you. Thank you for being. You're well. You're was experience.

[Senator Nader Hashim (Chair)]: Thank you. Appreciate it. I

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: did actually introduce him by saying it's

[Senator Tanya Vyhovsky (Member)]: a simple little bill, I did that with a fair amount of tongue in cheek.

[Senator Nader Hashim (Chair)]: Good morning, professor. Thank you for joining us. I know we're a couple of minutes early, but you good with us just getting started now?

[Professor Jessica Bulman-Pozen (Columbia Law School)]: Hi. Yeah, good morning. I thought I would get here early in case there are any technical problems, but I'm happy to start whenever you're ready.

[Senator Nader Hashim (Chair)]: Fantastic. Would you like to hold on? No. Great. Yeah, thank you, Professor. Fu. Just want to introduce yourself, bit of your background, then if you want to share your general views on the bills that you were invited here to speak on. Then I suspect the committee may have some questions for you.

[Professor Jessica Bulman-Pozen (Columbia Law School)]: Great. Yes. So good morning, everyone. Thank you, Senator, for inviting me to speak with you today. I'm Jessica Bohlman Posen. I'm the Betz Professor of Law and a co director of the Center for Constitutional Governance at Columbia University. I've taught here since 2012. Before that, I was an attorney advisor in the United States Department of Justice's Office of Legal Counsel. And so I'm pleased to have a chance to speak with you about the two bills you sent me, two thousand eight and two thousand and nine. In brief, I believe that these bills are an important exercise of Vermont's police power, that they're not foreclosed by the supremacy clause of the United States constitution. And so let me say a word about the state's affirmative power to adopt such legislation. Then I'll say a word about the most important legal challenges and responses to such challenges, and then happy to address any questions you may have for me. So, as I'm sure you know, the first legal question when considering legislation is whether the government has the power to adopt a law in the first instance. With respect to that question, here the answer is undoubtedly yes, because in our constitutional system, states possess the police power. This is an inherent authority to regulate to protect the health and safety and welfare of states people. And nothing in The United States Constitution eliminated the state's police power, which pre existed the Constitution itself. To the contrary, the tenth Amendment of the United States Constitution reserves such authority to the states. A minor drafting point, in fact, on that score is that I noticed that right now, two zero eight indicates that it is the intent of the General Assembly to exercise the power granted to Vermont by the Tenth Amendment. In fact, the Tenth Amendment does not grant Vermont any power in this regard. Vermont already possesses the power. It simply recognizes that Vermont possesses such power. Again, it's a minor detail, but I think it speaks to the fundamental importance of the state's police power in our constitutional system. This is a power that also makes the states, as well as the federal government, responsible for ensuring the liberty and the security of the American people. And as you no doubt also know, most protections in this country therefore come from state and not from federal law. An additional small drafting point with respect to two zero eight and its exercise of the police power is that I would recommend including legislative findings about why, as you're probably already planning to do, but about why this bill is necessary and useful with respect to protecting the safety and welfare of Vermonters. For example, the documented instances of people impersonating law enforcement and engaging in crimes like kidnapping, ensuring that Vermonters who may be subject to arrest recognize that the person attempting to arrest them is in fact law enforcement rather than such an impersonator or the like. It's not necessary to have such findings, but I think it would bolster the understanding of the bill as important police power legislation. Now, the harder question, which I assume is mostly what I'm here to speak about, is whether even if Vermont has the authority to act in the first instance, this legislation violates a distinct provision of Constitution. Even when states use their police power to pass legislation, they can't violate other parts of the Constitution. Here, I think the strongest legal challenges would come from the supremacy clause from Article six of the Constitution, specifically the doctrines of intergovernmental immunity and preemption, both of which are understandings that come from Article six that declares federal law supreme over state law. So let me say a word about each. There's much, much that could be said. I'll try to keep it brief again and then turn to your questions. With intergovernmental immunity, the doctrine says that states may not discriminate against the federal government or regulate it directly. In the draft bills that I am looking at, is no such discrimination. Two zero eight expressly applies even handedly to all law enforcement, local, state, and federal alike. Two zero nine likewise appears to apply to all levels of government, although I don't see an express specification of its applicability. So a drafting point here is I would urge you, however you may modify this legislation as moves through your committee or through the legislature, not to change this aspect of the law to ensure that it continues to apply in an even handed, neutral, and equal way to state and local, as well as federal officials. That is a critical piece of defending against intergovernmental immunity challenge. The stronger argument with respect to the bill is not about discrimination, but about direct regulation. That's the second piece of the intergovernmental immunity doctrine, that states cannot directly regulate the federal government. And here insofar as the bills apply to federal as well as state actors, that will be a federal government challenge. Here, there are hard questions. The Supreme Court, though, has distinguished between state laws that control, in its terms, federal officers, and laws that, in its terms, incidentally affect the mode of carrying out federal law. So in a seminal case from more than a century ago, Johnson versus Maryland, the court said that Maryland couldn't require federal postal officers to have a state license in order to drive and carry out their federal employment. This would amount to controlling federal officers. But the court said, in the same case, that federal employees don't secure a general immunity from state law, and that states can require federal officers, even when they're carrying out federal law, to comply with general rules that, again, might affect incidentally the mode of carrying out the employment. The court gave the example of a traffic ordinance regulating the mode of turning at the corners of streets. So I think here, has a strong argument that two zero eight and two zero nine do not control federal actors. They don't prevent federal law enforcement or state law enforcement, but here federal law enforcement from carrying out their statutory obligations. The bills more narrowly affect the mode of how all law enforcement actors do their work, with identification, without masks or disguises except in specified contexts, not in certain sensitive locations. I think this kind regulation is not quite as incidental as the example provided in Johnson of turning at street corners, a traffic regulation regulating that, but it still seems closer to that permissible end of the spectrum than to controlling federal certain officers themselves. And again, here the state's interests and the strength of the state's police power interests would also weigh in the balance. The court has instructed that in the intergovernmental immunity context, courts should consider the full range of each sovereign's legislative authority. An additional point with respect to two zero nine is that Vermont would be acting not only as a regulator, but also as a proprietor defining what activity is permissible in state owned facilities that lie at the core of its sovereignty. So that brings me to preemption, which again is a similar doctrine with respect to regulating federal and state interactions under the supremacy clause, but operates a little bit differently. As relevant potentially to these bills, preemption doctrine renders invalid state law that conflicts with federal law. I think the principal reason a preemption challenge to these bills should fail is that there is no conflicting federal law. There are only discretionary executive branch decisions. For two zero eight, with respect to identification and masking, there is, at least as far as I am aware, no federal law, no federal regulation carrying the force of law that requires or that expressly permits unidentified masked law enforcement. So any conflict with the state bill would seem to come between legislation on the one hand and a discretionary executive branch decision, not federal law itself. There is a long standing presumption against preemption in areas of traditional state regulation, including policing. And I think given this conflict that does not involve federal law itself, a preemption challenge should fail. Again, with two zero eight, I think the intergovernmental immunity challenge would be the stronger challenge, but a preemption challenge could also be raised. I think it is a weaker challenge. For two zero nine, the preemption challenge might look a little different. As I understand it, Vermont is seeking to add certain sensitive state locations to its existing prohibition on civil arrests around courthouses. The common law privilege against courthouse arrests long predates Congress's adoption of the Immigration and Nationality Act, the INA, and other federal immigration laws. So as a number of federal courts have already recognized, if Congress meant to abrogate that courthouse arrest privilege in these federal immigration laws, it would have had to speak clearly. It did not do so. Federal law has therefore not been understood to abrogate that privilege and to provide the kind of conflict that would lead to preemption. With respect to the extension to other sensitive state locations like schools and hospitals, there's not a comparable privilege that I am aware of. So I think the reliance would instead be on overarching federalism principles that recognize the sovereign prerogative of states to control their facilities, to control their properties. I think here again, there's a strong argument that the INA and other federal immigration laws do not expressly provide for civil immigration arrests to occur in state facilities over which the state has exercised its sovereign control. And that again, comparable to the courthouse context, given such silence that federal law is not best read to preempt state law. I'll also note, as I'm sure you're aware, that the executive branch decision to begin to conduct enforcement in these spaces is itself a departure from past federal executive practice. I don't believe it has been codified as such in a way that would carry force of law. So again, we have a conflict principally between executive branch discretionary decisions and state law rather, or proposed state law rather than state law itself. So maybe I'll stop there and just say again that I think although they still would be quite likely to face legal challenges, I think Vermont has compelling arguments as to their constitutionality, and I would be happy to address any questions you might have for me.

[Senator Nader Hashim (Chair)]: Thank you, Professor. Senator Nader Hashim has a question.

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: I have a question, and

[Senator Tanya Vyhovsky (Member)]: you may not know the answer to it, but also you may. So my understanding is that Colorado had passed in 2025 a law very similar to this, about creating that sensitive space. And they're actually, their law, my understanding, is is a prohibit prohibition on entering into hospitals or schools without a signed judicial warrant. Are you aware of this law or and or if it has been challenged in the courts?

[Professor Jessica Bulman-Pozen (Columbia Law School)]: I'm not aware of Colorado's. I know in New York, some of this work has been done through executive order. There's the Protect Our Courts Act that speaks again to the courthouse arrest privilege. And then so far through executive order rather than state legislation, the state has attempted to expand the protection to other sensitive state locations. And in the litigation that has been proceeding, is ongoing, but that has been proceeding this year, the District Court upheld the state's policies against challenge by the federal government. I'm not familiar with the Colorado. Okay.

[Senator Tanya Vyhovsky (Member)]: So I knew that it may be so specific that you might not be, but I figured it was worth asking.

[Senator Nader Hashim (Chair)]: Mindy, any other questions? You covered a lot of the areas that I wanted to get at. But one one question that I do have is regarding enforcement. In terms of when and where a state can enforce a law against a federal agent and the difference between enforcing a civil law or a civil violation versus a criminal violation. I was just wondering if you could provide some more information in that area.

[Professor Jessica Bulman-Pozen (Columbia Law School)]: Sure. So I think in this particular context, the kinds of questions one would usually have with respect to enforcing state law against federal officers ultimately get folded into the questions of intergovernmental immunity that I was addressing. But let me say a few words about supremacy clause immunity sort of more generally to respond. If the state wants to say prosecute or potentially bring a civil action against a federal employee, Let's say that a FBI agent kidnaps a child down the street and the state wants to bring a suit and wants to bring a prosecution in that case. The state can do so. States can prosecute federal officers. Federal officers have supremacy clause immunity defenses they can raise. So what would happen in that context is that the state would bring its case, the federal officer raising, again, that case, it's unlikely to be a colorable defense, but raising a supremacy clause immunity defense would be able to remove the case to federal court if there's a colorable federal defense, which would be supremacy clause immunity, which is also from Article VI. At that point, a federal court looking at the state's prosecutorial authority would determine whether the federal actor was operating in the scope of his employment and whether his actions were reasonable and necessary and proper, you see some different language, but basically reasonable with respect to that. So in the example I gave, surely the answer is no, not in the scope of employment, not reasonable necessary. In contrast, if the kidnapping charge arises from a federal agent arresting someone in the course of carrying out federal law, and the state wants to bring a prosecution, that defense would be a colorful defense. So that's, again, there's no bar on states prosecuting federal officials. The federal officials have an immunity defense, but they have to then be able to show that what they were doing was part of the scope of their employment and that their actions were reasonable. So that's, again, probably with respect to a state law that is not already specific to this context, that hasn't been upheld, for example, against an intergovernmental immunity challenge, a general state law that applies to everybody, a state law against kidnapping, against murder, etc. With civil actions, I think it would be much the same if you're dealing with a violation of a state statute, if that's what you're talking about. Again, there could be a possible claim of immunity, but the courts would evaluate whether it is in fact a valid claim of immunity or not. So there's no categorical bar on states enforcing their law against federal officers. It's just the question of whether the federal officer has immunity in response.

[Senator Nader Hashim (Chair)]: Sarah Behovsky, think, has another question.

[Senator Tanya Vyhovsky (Member)]: I do, but I'm I'm trying to figure so probably based on your testimony, we as a state have the right to if if the law is deemed okay to impose either a civil or a criminal penalty?

[Professor Jessica Bulman-Pozen (Columbia Law School)]: I think the state has that choice if the law is a valid exercise of the state's police power, is not foreclosed by the supremacy clause because it is preempted by federal law or otherwise a direct regulation of the federal government, I think, yes, the state can make that selection. The questions with respect to immunity are challenging ones, but they're ones that could apply in either context.

[Senator Tanya Vyhovsky (Member)]: And would that immunity apply if someone were and this is going, I think, this is more to 02/2009 than 02/2008, but in 02/2009, there's some language that kind of a private right of action, so someone could sue that federal agent if they violate this. Would that immunity clause apply to that as well or only to the state's actions?

[Professor Jessica Bulman-Pozen (Columbia Law School)]: Yeah, I I think, again, with respect to this kind of legislation, you are almost certainly going to, if you pass into law, get a challenge by the federal government. That would be a facial challenge, just challenging the law, full stop. That's why I think the enforcement questions become a little bit more complicated, because either a court might deem the laws unconstitutional, in which case you won't get to that point. But if a court upholds the legislation against a challenge under the supremacy clause, then it should be much harder for a federal officer, either context civil or criminal or with respect to the private suits you're suggesting, to raise a colorable defense. It's possible, again, there could be some kind of exceptional circumstance that was not contemplated. But I think most of these questions would be folded into the intergovernmental immunity analysis that would occur with respect to the facial challenge to the legislation.

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: Okay, thank you.

[Senator Christopher Mattos (Clerk)]: Any other Senator Mattos, just a I won't say a quick one because I don't know if it would be quick, but thank you, professor. You spoke about the state's people. What's the definition of the state's people? Because when I look at, you know, the prohibition in the bill, a person shall not be subject to civil arrest, and I kind of put that towards the state's people. So what's the definition of the state's people? Somebody passing through, a resident, kind of what's that definition?

[Professor Jessica Bulman-Pozen (Columbia Law School)]: So I don't think there's a single definition for constitutional purposes, but I would say, generally speaking, when we talk about the state's people, we're talking about residents of the state.

[Senator Christopher Mattos (Clerk)]: So like a full time year round resident or what would be the definition of a resident of the state?

[Professor Jessica Bulman-Pozen (Columbia Law School)]: For purposes of the bill? Is that? Yeah. Don't can you sorry. Can you direct me to where you're looking?

[Senator Nader Hashim (Chair)]: Page

[Senator Christopher Mattos (Clerk)]: two, line nine, where it says a person shall not be subject to civil arrest while traveling to, entering, remaining at, or returning from A, and then it lists the spaces.

[Professor Jessica Bulman-Pozen (Columbia Law School)]: Yeah. I I don't understand the language of the bill here to speak to whether someone is a citizen or resident of Vermont itself. It doesn't seem to speak to that. I thought you received a testimony with respect to Vermont's police power and its understanding of its own people, you could see some different definitions, I think.

[Senator Christopher Mattos (Clerk)]: Yeah. I think both kind of like the overarching, what is

[Senator Nader Hashim (Chair)]: the state's people? So it might be

[Senator Christopher Mattos (Clerk)]: a bigger question than just this definition.

[Professor Jessica Bulman-Pozen (Columbia Law School)]: Yeah. I mean, I think it it probably won't be pertinent to to this piece of legislation specifically, but states have the authority to define their political communities. They have some leeway in in doing so. There are obviously federal constraints with respect to exclusion on the part of the states, but states may recognize state citizens, people who would not necessarily follow from federal constitutional protections as such. But I think states can also regulate with respect to their territory and with respect to people in their jurisdiction who may not be state citizens, for example, or even state residents on any kind of definition of that term because the state has the authority to regulate its territory as well as its people.

[Senator Nader Hashim (Chair)]: And I was saying, with the plain language of what's written on five zero nine H2, Line nine, definition, the word a person that generally refers to anybody that is a human being comes in the jurisdiction of that state. Yeah, and, you know, we could hear from that council further, I suppose. Well,

[Senator Tanya Vyhovsky (Member)]: I think corporations are only people too for purposes of free speech.

[Senator Nader Hashim (Chair)]: Any Okay. Other questions to the professor?

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: Well,

[Senator Nader Hashim (Chair)]: thank you very much, professor. I appreciate your testimony.

[Senator Christopher Mattos (Clerk)]: It is helpful and enlightening. And, yeah, thank you for coming up.

[Professor Jessica Bulman-Pozen (Columbia Law School)]: Okay. Thank you for having me.

[Senator Christopher Mattos (Clerk)]: Thank you.

[Senator Nader Hashim (Chair)]: And we have scheduled for an hour from now confirmation vote of judge to be one of what was that? When when is it scheduled for? Elevatory. But Oh,

[Senator Christopher Mattos (Clerk)]: I see. 10:50. So do you folks wanna take a break, or do you

[Senator Nader Hashim (Chair)]: just wanna do the vote now, have a discussion, take the vote, wrap things up?

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: Question just about processes. It's been a bit since we've done this. Do we historically have the judge present if

[Senator Nader Hashim (Chair)]: they want to be for that vote? No. Historically, it has been for the discussion of the vote with the judge has not been Okay.

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: I just wanted to make

[Senator Tanya Vyhovsky (Member)]: sure that if that is something, like I it's

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: been a while, that didn't change it without the judge being able to. But if we don't do that, I would advocate that we just do it and be done for the day. Yeah.

[Senator Nader Hashim (Chair)]: Pretty sure we haven't had them.

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: I have no idea. Yeah, we haven't had them in the room before at moment.

[Senator Nader Hashim (Chair)]: That's what I thought. It would be a little uncomfortable. Good take

[Senator Christopher Mattos (Clerk)]: away from that.

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: Isn't this working still when you're comfortable?

[Senator Nader Hashim (Chair)]: Yeah, that's all. Does the same applaud the Supreme Court Justice issue? I think so, yeah.

[Senator Tanya Vyhovsky (Member)]: You don't want them to be angry

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: about our vote and like, come at us.

[Senator Nader Hashim (Chair)]: It also kind of could have a chilling effect on our conversation. It's a little if if we wanna have a very candid conversation about how we feel, it feels strange to have them sitting there, not able to say anything. So

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: I just couldn't remember. Valid point.

[Senator Nader Hashim (Chair)]: What do you have for Judge O'Han's reaction? I do. Discussion that folks wanna have regarding Judge? I saw he was very aggressive.

[Senator Christopher Mattos (Clerk)]: Yeah.

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: I was also quite impressed.

[Senator Nader Hashim (Chair)]: I was also white. Yeah.

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: So that's what you're Well No.

[Senator Nader Hashim (Chair)]: I've seen, just going on the JV, obviously. So I'm guessing one to get there.

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: Is that on the defendant. So you what I really appreciate I know he came in here and sort of explained it as a detriment, know, his sort of different path towards the the judiciary,

[Senator Tanya Vyhovsky (Member)]: but I actually find that to be

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: an asset, really bringing in a different viewpoint and a different set of life experiences. It's you know, as we try to tweak some of the language to really open up the judicial door to nontraditional candidates and I actually hate using that language because what that really means is, like, not faulty white people. I I really appreciated this and seeing that in some ways it's working. Would say there's not a lot of events in that direction that we could think of. Anybody

[Senator Nader Hashim (Chair)]: else?

[Senator Christopher Mattos (Clerk)]: I just I think, his experience and personality and levelheadedness, and I think it'll be a great asset, to the bench to be able to I think he'll do a fine job of listening to all the arguments that come before.

[Senator Nader Hashim (Chair)]: I Yeah. Feel much the same as everybody, although I won't just rehash all the same points. I'm happy to make a motion, vote them up favorably. I would vote that in the meeting. Vote to confirm judge Booth. Accept the I don't know that we have a bill sheet, a sense for. I just go up to the secretary. Do we know the bill sheet right away? It works. Okay. Well, well yeah. I think, yeah, I think that makes sense, and then I'll see, yeah, that it's issued by Yeah. See. The clerk. Yes.

[Senator Christopher Mattos (Clerk)]: Senator Ruth. Yes. Senator Mattos? Yes. Senator Norris?

[Senator Robert Norris (Vice Chair)]: Yes. Senator Oops. Yes. Senator Hashim? Yes.

[Senator Christopher Mattos (Clerk)]: 5 00.

[Senator Nader Hashim (Chair)]: Oh, fantastic. Who would like to report out I

[Commissioner Jennifer Morrison (Vermont Department of Public Safety)]: would take care of that. He's still on the calendar. Yeah. Excellent.

[Senator Nader Hashim (Chair)]: So if you want to take that to Secretary. All right, committee. Good job. We did our first thing. All right. Thank you, everybody.