Vermont Legislature SmartTranscripts:

[Unidentified Staff/Technician]: We are alive. Good morning. It is January 29 in the senate judiciary.

[Jack McCullough (Director, Mental Health Law Project, Vermont Legal Aid)]: Have You're

[Sen. Nader Hashim (Chair)]: doing McGinnis from the Vermont Family Alliance?

[Unidentified Committee Member]: Yes. And,

[Sen. Nader Hashim (Chair)]: yeah, the floor is yours if you wanted to hear your views and your thoughts on cross border.

[Renee McGinnis (Policy Analyst, Vermont Family Alliance)]: Sure. Thank you. Thank you for taking my testimony today. My name is Renee McGinnis. I'm the policy analyst for Vermont Family Alliance. Vermont Family Alliance is a parental rights and criminal protection status group. Vermont Family Alliance acknowledges that there have been many violations of equal rights in the past and is not opposed to an equal rights amendment with broader language as recommended by Pierre Teachow, constitutional law professor, and only if it is equally applied. Our main concern after analyzing Prop four testimony by constitutional law, Professor Peter Peachow, and listening to discussions on Prop four by both the Senate and House Judiciary Committees in 2024, is that the legislature will pass laws that discriminate against biological women, Christians, and traditional families by providing expanded protections to some of the finite list of persons, safe, sanctioned, historical, marginalized populations under Section one, Purpose B, and specifically under the gender identity and gender expression. In the proposed amendment, Vermont Family Alliance has opposed the passage of Proposition four by the General Assembly to put before the voters in November 2026 for the following reasons. Number one, Prop four presents a finite list of groups that are protected by laws passed under Prop four at the exclusion of other groups. Peter Tchow pointed out that the finite list of protected classes presents an interpretive challenges for the courts. In his testimony to this committee on 01/30/2024, he recommended broader language along the lines of the fourteenth amendment of The US constitution as follows, every person is entitled to be treated with equal respect and dignity under the law. Therefore, government acting either alone or in conjunction with private actors shall not deprive any person of life, liberty, or property without due process of law or deny any person the equal protection of the laws. The legislature shall have no power, shall have the power to enforce the provisions of this article with approval of legislation. The Senate Judiciary did not take up Teach suggestion for broader language, but passed about four out of the committee with a finite list of groups. Teach Out also stated in his testimony to the House Judiciary Committee on May 1, quote, Once you start listing protected classes, you raise the question of why the particular types of discrimination are listed and others are not. The law has a technical term for this reflected in the Latin mass of which means that if you include certain classes in a closed list, you mean to exclude others. Because of the way Prop four is currently framed, practitioners and courts will constantly be faced with difficult questions. Are members of the classes specifically listed in the amendment in Prop four the only ones entitled to judicial protection against discrimination? If not, are they entitled to special protections that members of other classes are not entitled to? If neither of those, then what is gained by enlisting them? Peachow suggested that, if possible, the House Judiciary Committee returned prop boards to the Senate to request a quick fix by inserting language on the grounds such as to expand protections to all groups of people. He wrote, It is important to remember we are considering the adoptions of a constitutional amendment, a fundamental statement of governance that is supposed to guide us over the long term. So while we are doing it, it's important to try to get it right. The House Judiciary Committee passed Prop four out of committee, knowing that the language would cause issues with interpretation in the courts, because passing Prop four within the 2024 timeline was a higher priority than getting the language right. Legislation passed under Proposition four that intentionally or consequentially prioritizes the rights and protections of transgender women over biological women will face court challenges. Deacon stated in his January 2024 testimony to Senate judiciary that, quote, The federal standard establishes the floor below which states cannot go, but it does not prevent states from providing greater protections. The limit is when the state law conflicts with federal constitutional law. That is the limitation that Vermont would face if it were to attempt to invoke a newly added equal protection clause and support for adopting affirmative action programs giving preferences to members of historically disadvantaged groups. He brings up the US Supreme Court case, Students for Fair Admissions versus Harvard, North Carolina, and skipping down to the next highlighted section. So, if the state constitution were to be amended and include an equal protection clause, that clause should not be invoked by the state as support for adoption of affirmative action programs that take this form. Since federal law is supreme, all such programs would be vulnerable to challenge under the federal equal protection clause, en route they constitute impermissible discrimination on the basis of race, end quote. Vermont VA Alliance further asserts that any laws that LD provides and violate biological males that identify as females under gender identity and gender expression under prop form will be challenged as a violation of the equal protection clause in the fourteenth amendment. Number three, legislators have already demonstrated, some legislators have already demonstrated that they have a mindset to discriminate against subgroups under Proposition four. The original 2019 proposed amendment detained religion. It was removed in the 2023 version, and then it was added back in in the committee in 2024, which suggests the likelihood that some legislators will not exercise equal protections in laws introduced and passed under Proposition four, but will actively attempt to discriminate against some groups by expanding protections for some of the finite, in the finite list of groups at the expense of others. Number four. Any laws passed under Proposition four that expand protections for gender identity and gender expression over biological sex will be challenged as unconstitutional. We already see this. Any Vermont laws passed under Prop four that bump up against the equal protection clause of the Forks and Defenden of the US Constitution, and SCOTUS decisions, such as Student Prepared Answers versus Harvard, will face illegal damage. B, MedVermontChristian, or versus Saunders, given a preliminary injunction to allow MedVermontChristian back into the Vermont Principals Association. He anticipated its decision in favor of from Mount Christian regarding their participation in interscholastic sports and in child tuition. The Supreme Court decision coming in early summer twenty twenty six on whether to uphold state bans on transgender males and girls sports under Title IX will also serve as president, and we anticipate a decision in favor of upholding state bans, which will apply to states that allow transgender women to play across sports. Number five, legislators have failed to disseminate information to the public on Proposition four. There were fewer in attendance at the 05/01/2024 public hearing than there were members on the House Judiciary Committee that hosted that public hearing. Only six people, none of whom were from the general public, testified. And number six, quite simply, Proposition four will give the Vermont legislature neither the constitutional upper hand nor the moral upper hand that it is seeking. The Vermont legislature simply cannot pass laws that expand protections for a finite list of Vermonters while violating the rights of other groups due to the supremacy clause of The US constitution and SOTUS decisions. That's our testimony. Okay. Yeah.

[Sen. Nader Hashim (Chair)]: Any questions?

[Unidentified Committee Member]: No, I do have a question. My understanding is that we can't change it properly because it's not appropriate. Correct. Yeah. Not the second plan.

[Renee McGinnis (Policy Analyst, Vermont Family Alliance)]: And the House could never change things, right? There was always Right.

[Sen. Nader Hashim (Chair)]: Yeah, thank you. I suspect that we could spend a lot of time talking about all the different points and debating that. The only question that I do have, more of a procedural question, It is important to me to make sure that everybody has access and information to what is going on here regardless of their viewpoints. So I guess with number five, regarding failure to disseminate information to the public, are there specific things that you believe we haven't shared, or do you think that we need to have more public hearings or what, just trying to get a better idea on

[Renee McGinnis (Policy Analyst, Vermont Family Alliance)]: what I think the poor attendance might suggest that people were not aware or not aware of this constitutional amendment. And then I don't know whether or not, know my legislators are not sharing this in their newsletters, I'm not receiving any information from my representatives or senators about this constitutional amendment. I think we need an educated citizenry to understand what they're actually voting on. The purpose section is relevant, think it's very important. They will just be looking at the language of what would appear in the constitution and everything. People deserve more information before they vote on that. Thank you.

[Sen. Nader Hashim (Chair)]: I I agree with that.

[Renee McGinnis (Policy Analyst, Vermont Family Alliance)]: I also just have a procedural question. Since we've done this research, the time lock. Do we have to have those public hearing in the second by any of because I know with deputy Klotch, who, last constitutional cycle, we

[Unidentified Committee Member]: hadn't wanted to vote for them.

[Sen. Nader Hashim (Chair)]: That, I don't know.

[Renee McGinnis (Policy Analyst, Vermont Family Alliance)]: If I may, I believe so because the house chair Judiciary Olamant, I think he did mention court turnout, the first hearing that he said would get another Olamant. So actually I did that back. I'm not sure if he's actually said he's gonna be here. He just knows that he's going through this process. Again, hopefully more people will come to know about this, but I think there needs to be an active, proactive means to do that if this sounds familiar. Okay. So that was my first procedural question and my other procedural question, and it may be about our Russian Secretary of State, I'm happy to follow-up, but they have to publish information once this goes to the ballot for the citizens to vote on. Right? I believe so. Okay. That's what I thought. Yeah.

[Unidentified Committee Member]: Yeah. I would be happy to. Alright. Can you make a note about public

[Sen. Nader Hashim (Chair)]: hearing? Have to figure out if we We'll figure it out, but just hope for the future, it's negative.

[Renee McGinnis (Policy Analyst, Vermont Family Alliance)]: So I thought there were pretty specific layouts about how we had to share it, who we had to share it with, who the Secretary of State had to share it with. I thought that was pretty well laid out in statute, so I'd just like to brush up on that. Yeah.

[Sen. Nader Hashim (Chair)]: Any other questions? Great. Thank you. Have a nice day.

[Renee McGinnis (Policy Analyst, Vermont Family Alliance)]: You too.

[Sen. Nader Hashim (Chair)]: We are now switching gears here

[Jack McCullough (Director, Mental Health Law Project, Vermont Legal Aid)]: from.

[Sen. Nader Hashim (Chair)]: It's funny to be here. They have to move their testimony sometime next week. We've got plenty of time to bring And we'll hear from additional witnesses moving into next week. Yeah. Thank

[Jack McCullough (Director, Mental Health Law Project, Vermont Legal Aid)]: you, I'm Jack McCullough. I'm a lawyer from out legal aid since I'm chief of the street, and I'm the director of the mental health law project. And in the Mental Health Law Project, we have the contract at the to represent everybody in the state who's subject to any type of involuntary mental health. That's these who are committed and it's a request that they be involved, they're dedicated, people who are living in the community or is not hospitalization. And a couple of years ago, people who are independent in criminal cases who are heavier than found in the SNAND trial or not guilty by prisoners of descent. And the next step is process there, is what's called the hospitalization. What is determining whether hospitalization or involuntary psychiatric treatment case, so what is it? What I always like to start with, and I think it's particularly relevant here, is that the best thing that the legislature could do to address all the problems of the mental health system is to substantially and sustainably increase the resources At any given point, there is probably the thousands of vacancies in the system. Adequate in the system makes it unable to respond to crises. And probably more importantly, makes it unable to avoid people going into crisis. And this leads to all kinds of problems, homelessness, but also criminal acts that could have been avoided if we have the systems. However, this bill is a in search of a problem if it's not something that is necessary to address an actual problem confronted by a reality by our state. For years, we've been told by advocates for this type of legislation that the forensic population, they've been charged with crimes and he had found competent or not fit anybody's with savvy, is so different from the rest of the psychiatric population that in the rest of people in the mental health system, it is definitely easy to be people from segregated into some other type of facility. And my observation from interacting with these boys was that I never present any clinical cases any cases in any sentence. It's just not affirmed. There's no reason typically, have the same signal pathologies, the same things that bring them to this state as anyone else in the system. And there's always something that they're needing to spur to the care system. What we see now is that there are people inside the end of the hospitals who got their diabetes and other than the other. Was in the vicinity system. And right now, every person who is involuntarily detained in one of our psychiatric hospitals, they're court or they're waiting to hear and to let you talk. And about the professional that they need to be hospitalized for their own protection or for the protection of the. And that's true whether they're there to put in charge for the crime or whether they're in the courtroom. There's been some other incident that someone could leave them with someone else. Similarly, everyone who's on an ordered non hospitalization, which is the administration of outpatient, someone who's already received and involved in the health treatment but not required to go to the hospital, Everyone is on or non authorization because they don't go to see them. There's the new term. They could be on an order of non hospitalization. They could be safe unmeasurable danger for themselves or the public. Another thing that well, I'll get to that point here. This proposed bill proposes certain people, and it's hard to know even how many people are. But was saying that the game certain people in the most strict and and mostly expensive said impossible, but no show on. And so the question is, should we really be creating a middle, expensive, high security facility when people say it's going to have to get out of jail? The bill, as I've read it, raises serious cuts and overturns a long standing Vermont Supreme Court president, and. Costs are that this likely to resolve the issue of the court challenges on the number of other dispensed. First, the golden bag as far as the media, 1977, the US Supreme Court in the vote on congress and and adamant versus Texas know that it's a matter of constitutional law. Someone can't be offended without showing. That someone who's had a mental illness did not involuntarily house of violence, without showing, but we're evidence that they pose a danger to themselves in their lives. Disability is not important to this. Second is the dispute process and requires that whenever the government is going to deprive someone from other different than anyone, it's very clear that he volunteered and litigated his deprivation of liberty. The government has the obligation to prove that it's justified, even if I identify the show on the page. This bill would shift that burden from the government showing that they would be getting the pension approved by clearing the evidence that they're not in the future. That is a clear constitutional violation there. Vermont Supreme Court has held that the process requires that once a person is submitted, They're entitled to have periodic review of their public attention initiating the divide and establish that in case of MHUK. That would be not the Canadians. This bill either puts the burden on the defendant to request a review of your pension, or instead, the alternative is what I would say is an unpleasantly law, probably unconstitutional law, interval of five, which is perfectly good. And finally, this is just not necessary. What we see now is sometimes people are admitted to the hospital for treatment, for psychiatric treatment. They're gonna be found in the of the cryotherapy trial. And when they're there, they get the standard treatment for psychiatric patients based on the condition. Even without the specific mandate that Chihuahua doesn't have, even without a specific mandate to do what can be done and make them competent. Have seen numerous cases in which the application of the statin psychiatric treatment has resulted in a person's doctor, restored to confidence and then the. Stand trial for their offense or or after a plea, it's sentenced for their offense. So summary, it's visible. It's significant and serious constitutional concerns. Needlessly deprives their liberty and goals that if we would achieve, it can be passed without taking this action. So we oppose this bill. I know that you're at a stage where you're how much time you have to go to, but I think this is very, complicated. It's gonna take a lot of time to work through all the issues. Yeah, I think the concerns are not surpassed at all. Okay. Thank you.

[Sen. Nader Hashim (Chair)]: Just a few questions regarding competency restoration. Mean, that's that's the piece that at the moment I'm most interested in. And I'm trying to figure out what, you know, how to how to balance this in situations where somebody is found not competent to stand trial. And then their case just ends up existing in this, in the ether, essentially, and there's really no resolution except, you know, every several months they come back and they say, yeah, it's still not confident to stand trial, and then it just becomes inactive. And so can you expand a bit more on your thoughts regarding section one and competency restoration? I know you mentioned you just wanted to provide a general overview and this is a bill that's been a big a lot of time, but do you have any more specific thoughts about competence and respiration as it relates to this?

[Jack McCullough (Director, Mental Health Law Project, Vermont Legal Aid)]: Well, yeah, there are a couple of observations. One is that the great majority of cases in some of the defendant stand trial are misdemeanors and minor offenses. And often, part of the resolution of those cases is even in the cases that were going on in active status, judiciary, or just dismissed by the state's attorney. And I'm glad that section two got some clarity to that. But as for section one, I don't I haven't seen an indication that how someone would be restored to competency, other than by the treatment they've seen in the hospital anyway. For someone who's who's charged with a serious offense, I certainly, for example, many people with underlying charges for their justice for some form of homicide. I've seen those people treated with a disorder competency within the abnormal course of a mental health system, or treated brought to the point where they can no longer pose nature of themselves or others and that are able to be out of confinement and.

[Sen. Nader Hashim (Chair)]: That's that's that's all I have for for quite a couple of. Committee, if any Okay.

[Jack McCullough (Director, Mental Health Law Project, Vermont Legal Aid)]: Thanks very much.

[Sen. Nader Hashim (Chair)]: You have this stuff's up. I'm sorry.

[Jack McCullough (Director, Mental Health Law Project, Vermont Legal Aid)]: It's time to follow and just

[Sen. Nader Hashim (Chair)]: Okay. Great. And I was going to say if you have as we progress along, if

[Jack McCullough (Director, Mental Health Law Project, Vermont Legal Aid)]: you

[Sen. Nader Hashim (Chair)]: have more specific testimony on, you know, different provisions in our section and

[Jack McCullough (Director, Mental Health Law Project, Vermont Legal Aid)]: so on that they want to test in biology. Great. Thanks. Thanks a lot. We're going back. Alright.

[Sen. Nader Hashim (Chair)]: So, we're gonna be coming back at 10AM for 02:08. Quick update on Red. Okay. So we'll be back at 10AM. Some testimony from Rick regarding S two zero eight. Then shortly after that, people will be addressing the Supreme Court nominees. So just need to be back right around town

[Unidentified Staff/Technician]: or