ACLU of Vermont Legislative e-update
Feb. 8, 2010
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Hello --
The
Legislature is starting to get into the thick of its work. Budget
proposals are being scrutinized closely, including those around
education. A major portion of tax dollars go to fund public schools.
How those dollars are raised and distributed is a key piece of
education equity.
It appears that an agreement on teacher
pensions has been worked out, but many other issues are still to be
resolved. It's likely that hard work on them won't be done until after
Town Meeting on March 2 because that's when voters review budgets and
decide on spending. Spending decisions made at Town Meeting drive state
determinations on how much money is needed for the Education Fund.
We're following a lot of other issues at the moment.
-- Allen Gilbert, executive director
-- Serena Hollmeyer, Loomis fellow
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Fetal Bills Draw
Attention
The "fetal
rights" issue heated up markedly in the Legislature last week. A mirror
copy of Sen. Vince Illuzi's Senate bill (S. 175) was introduced in the House by
Rep. Mary Morrissey. H. 605, "an act relating to crimes against an unborn
child," has 55 sponsors, most of them (46) Republicans.
On Thursday the
Burlington Free Press ran a story about another car accident, this time in
Morristown, in which a woman lost twin fetuses. It was similar to the
Bennington car crash last summer that prompted interest in the issue. The two
mothers want heightened penalties because of their losses.
The accidents
were tragic. But the sad thing about the legislative wranglings now underway is
that the whole debate isn't necessary. The Legislature essentially addressed
the issue of fetal deaths and vehicular homicide when it amended the charge of
grossly negligent operation of a vehicle in 1991.
That action came following a
car accident that resulted in the death of a fetus. The state wanted to charge
grossly negligent operation, because of the death of the fetus. But the Vermont
Supreme Court, in the 1989 case State v. Oliver, said the state couldn't do
this. A fetus was not a person. The statute didn't apply.
In 1991 the
Legislature expanded grossly negligent operation statute to cover not just
death resulting from an accident, but also serious bodily injury. (The change
was part of an overhaul of numerous criminal statutes.) That produced the
result of broadening the offense to cover fetal deaths, because the mother is
almost always the victim of serious bodily injury in a crash where her fetus
dies.
Bottom line: In
most cases, if a fetus dies in a car crash, the state can bring the charge of
grossly negligent operation and get the same result (15 years in jail for the
defendant) as it would if there were a separate law covering only fetal deaths.
The House
leadership has said that if there's any action taken on the issue, it will have
to start in the Senate. Sen. Richard Sears, the chair of the Senate Judiciary
Committee has not said whether his committee will take up the issue. Sears has
his own bill, S. 273. It tries to avoid the issue of whether a fetus is a person
and should be accorded rights that a person has.
All this may
sound like a lot of politics and torturous legalese, but we and other
pro-choice advocates see the push for a fetal bill as part of efforts
nationwide to open a new front on the abortion debate. Newsweek online had a story the other week that looked at events in different states that could shift
the ground for approaching reproductive freedom issues.
Despite disclaimers
in all of the bills that they do nothing to change the legal rights of fetuses,
a debate around fetal deaths is almost certain to open a Pandora's box that
ultimately would lead to the question of a woman's right to choose and the
control she has over her own body.
As Rep. Rachel
Westman said in an article in Friday's Rutland Herald/Times Argus, "All
these bills bring into question at what point does a woman stop having full
rights as a citizen to determine medical choices....Whenever we're talking
about creating a special separate status for a fetus, when we do that we
inadvertently take away some of the rights of the woman. The question is --
does pregnancy make a woman less of a citizen or mean she should have less
rights?"
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Innocence Protection Bill Reviewed
The
Senate Judiciary Committee is also working on changes to the original
innocence protection bill it passed in 2007. That's the bill that
allows for the use of DNA to prove someone's innocence. Vermont was one
of only nine states not to have such a bill.
It's hard to
believe that bills like this face much opposition, but they do.
Prosecutors and police say convicted felons will use the protections
just to tie up the courts. They lost that basic argument three years
ago, but they're again voicing skepticism about changes the committee
chair, Sen. Dick Sears, has suggested.
Questions this year
center around a requirement that all interrogations of someone taken
into police custody be recorded. Police say a recorder (even a small
audio one) often isn't available, batteries fail, tapes malfunction,
that a suspect stops talking as soon as the officer pulls out a
recorder, that this is an unnecessary mandate that will cost thousands
of dollars.
The resistance is not uncommon, but it usually
disappears once the requirement is put into place. Police and
prosecutors realize a tape-recorded confession is solid evidence. It's
easy to determine if any part of the confession may have been coerced.
It's simply best practice.
There's also resistance to proposed
rules around collection and retention of evidence. The resistance
centers on lack of space. Evidence "lockers" are jammed to the ceiling
with everything from clothes to car doors, police say. Yet everyone
recognizes that the evidence may be important in determining someone's
guilt or innocence.
Finally, there's pushback around a
proposal to create an oversight commission for the state's crime lab.
The oversight now comes internally, through the Department of Public
Safety's own supervisory practices and approval from national public
safety organizations.
The pushback is not unexpected.
Legislators go out of their way to say it's not that they don't trust
law enforcement, it's just good practice. Sadly, Vermont has done
little to establish independent oversight of nearly any aspect of
Vermont's law enforcement community. Oversight of police is done
internally, or by the municipal or state bodies that they report to.
There is no public ombudsman's office where someone can lodge a
complaint about police practices, and have it reviewed by a qualified,
autonomous investigator.
The latest "Focus" supplement in our ACLU-VT Defender newsletter looks at issues around police accountability. It's posted in the "Pubs" section of our Web site.
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Privacy Of University Donations
The
University of Vermont and the Vermont State Colleges have won approval
from a Senate committee to add another exemption to the
already-voluminous list of exemptions to the state's public records law.
Vermont
is an "open records" state, meaning all information collected by
government is presumed to be available to the public unless deemed
confidential. The original law guaranteeing access was passed in the
1970s following abuses during the Watergate era. It had a limited
number of exemptions -- income tax returns, for example, were deemed
private.
But since then, the list of exemptions has grown to
more than 200. The Senate Government Operations Committee looked at all the
exemptions several years ago when the Douglas administration was
accused of keeping records from the public. The committee wanted to
begin to pare back the number of exemptions, but funds to establish a
special committee to begin a review were never appropriated.
It's
now the same committee that last week proposed to add an other
exemption to the law, saying it was OK for UVM and VSC to keep a
donor's names private if the donor requested anonymity. The irony was
not lost on committee members.
The committee, in fact, had
walked into one of the trickiest areas of conflicting rights we deal
with at the ACLU. It's the clash between the public's right to get the
information it needs to hold government accountable vs. an individual's
right to privacy around things such as financial matters, medical
information, and education records.
We told the committee we
hated to see yet another exemption added to the public records law, and
that we didn't think such an exemption was needed. UVM is already
providing anonymity to donors who request it, and case law provides
some basis for privacy. Understandably, the university would rather
have a state statute to back up its offer of anonymity rather than to
have to promise legal assistance if someone is taken to court over the
issue.
The donor privacy provision was attached to a bill (H. 331)
dealing with records management. That bill has already passed the
House, so assuming the Senate passes the amended bill it will have to
go back to the House for a second round of approval. That means it
could get stripped away if it threatens the underlying bill, which is
seen mainly as an important housekeeping measure.
Read the Burlington Free Press story on donor records confidentiality.
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Vermont Eugenics Survey Resolution
One
of the saddest, darkest moments in Vermont legislative history came in
1931 when lawmakers passed a bill allowing sterilization of "idiots, imbeciles, feeble-minded, or insane
persons."
Vermont
wasn't alone in this ignominy. Two dozen other states had already
decided government could decide who could and could not have children.
Sterilization was "voluntary," but to hear stories from members of
Vermont families targeted as unfit for procreation, it was anything but.
Last week the House Human Services Committee heard testimony concerning a resolution acknowledging the law was horribly misguided and that the state deeply regrets the action it took.
Read our blog post on the testimony.
Read the Associated Press story on the testmony.
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Open Meetings
The
editor of the Bennington Banner, Jim Therrien, took notice this fall of
stories about the public being shut out of public meetings. He and
other members of the Vermont Press Association are -- like the ACLU and
other open government advocates -- concerned that too much of the
public's business is getting done behind closed doors.
The tool
that's used to exclude citizens is a provision of the open meeting law
that allows for "executive sessions." The provision tries to recognize
the need for public bodies, in limited circumstances, to discuss issues
without public scrutiny.
The problem is, the provision can
easily be abused. A citizen of one town contacted us after looking
through records of his town's select board meetings. He determined that
one-third of the select board's time had been spent behind closed
doors. That's excessive.
The executive session provision is very
clear in setting out the reasons a board may go into executive session,
the process it must follow to exercise the provision, and what it can
and can't discuss in the closed session.
Jim Therrien wanted to
remind boards in the Bennington area of their responsibility to follow
the law in conducting public meetings. He asked that an article be put
on their town meeting warnings that would affirm their adherence to the
law and promote a discussion about its importance.
He's had no takers.
Read/listen to a Vermont Public Radio story about Therrien's efforts.
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Contact Information
e-mail: info@acluvt.org
phone: 802-223-6304
postal: 137 Elm St.
Montpelier, VT 05602
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