ACLU-VT 2010 legislative wrap-up
May 14, 2010
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Hello
--
The 2010 session is over, ending early Thursday
morning. Legislators didn't make their April deadline, and even slipped
past the extra week they originally felt should allow them to wrap
things up. As is usually the case, money was behind the disagreements
that made adjournment a slog.
We followed a lot of bills this
session. We felt there were more successes than disappointments
concerning civil liberties issues. (Still, it's the disappointments that
weigh heaviest in your thoughts as you look back at a session,
unfortunately.)
Below is a quick overview of what happened -- and
in some cases, of what didn't happen. Feel free to write with questions
or comments.
--
Allen Gilbert, executive director
-- Serena Hollmeyer, Loomis fellow
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Education Funding Equity Preserved -- Mainly
School spending cuts emerged as a major issue as the
session wound to a close. Spending cuts were part of the "Challenges for
Change" proposal made by the Douglas administration. Gov. Douglas
wanted mandatory 2-percent across-the-board cuts, with stiff penalties
if a district didn't meet them.
We presented the Legislature with
evidence that mandated cuts would violate the equity provisions of the Brigham decision,
because of the effect of the penalties (see memo from attorney
Robert Gensburg to legislators). Both the House and Senate agreed with
our position. The governor backed down. In the end it was agreed that
cuts would be district-specific targets developed by the state
Department of Education; boards will be asked to meet those targets.
Winning
this battle was significant. Unfortunately, it may have helped set up a
loss on another equity front -- school mergers.
Both the House
and Senate proposed bills that included incentives for districts to
merge. We have nothing against mergers, or merger incentives, as long as
everyone is treated fairly. Unfortunately, neither bill did that.
Districts would be rewarded a tax break for merging -- regardless of
whether the merger saved money, and regardless of whether students'
learning opportunities were improved. Granting towns unequal access to
school funds, especially for uncertain results, violates the equity
provision of Brigham.
But it was clear from the time these bills
were introduced that legislators needed to be able to say they had done
something to shrink the number of schools and (supposedly) save money.
The bills provided political cover from the governor's charges that
legislators were doing nothing to rein in school costs. We suggested
ways that the incentives could be tweaked to avoid the equity problem
and to guarantee savings -- but the legislators weren't interested and
pushed the bills forward anyhow.
The good news is that the
financial effect on equity in the measure that did pass (H. 66) is small -- in
terms of others' tax rates -- and exists for a limited period of time.
The bad news is that legislators have created a carve-out that trims a
corner off the current school funding formula -- a formula that has
reliably delivered equity to the state's schools for 13 years. Because
of passage of this bill, there will undoubtedly be temptations in the
future to make other carve-outs. (See our memo on merger
incentive carve-outs.)
A civil right like equal treatment is
never fully won. It must be re-won over and over, even when equity
principles are established in law. We anticipate continued tension over
this issue. Litigation is always a possibility.
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Fetal Bills Not Taken Up
Neither
the House nor the Senate was, in the end, interested in three bills (S. 273, "An Act
Relating to Assault of a Pregnant Woman, and S. 175 and H. 605, mirror bills
both titled "An Act Relating to Crimes Against an Unborn Child") that
became lightning rods of controversy during the session.
Two
women who lost fetuses in car crashes pressured the Legislature to
change statutes to heighten penalties when such losses occur.
We
felt the bills were unneeded because of revisions in 1991 to the
state's grossly negligent operation of a vehicle statute. The revisions
allow heightened penalties against a driver when an accident results in
serious bodily injury. This broadening of the original negligent
operation statute essentially covers fetal losses, because the mother is
almost always the victim of seriously bodily injury in a crash where
she loses her fetus.
We also agreed with other pro-choice advocates who
feel that "fetal rights" bills are often used as wedges to enact laws
that diminish a woman's control over personal health choices. Abortion
rights are supposedly not the issue, yet they emerge as such as debates
develop.
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Marijuana Issues Put Off
A bill (S. 226 -- go to p. 635
of Senate calendar when link opens to see final version considered) to
create "compassionate care centers" that would dispense medical
marijuana reached the Senate floor but stalled and never made it to the
House. Renewed efforts to decriminalize possession of small amounts of
marijuana didn't even get that far -- no committee even took up a bill.
(House Judiciary is where action needed to take place, since the Senate
had spoken positively on the issue two years ago. House Judiciary said
it was too busy with other issues to take up marijuana
decriminalization.)
The medical marijuana dispensary bill at
first appeared poised for passage in the Senate. It had the backing of
leadership. But law enforcement was united in its opposition at a
hearing that featured a special panel of officers testifying en masse. Legislators were, in the
end, unwilling to buck the anti-drug message.
It seems ironic
that in another committee the state was seeking relaxation of
involuntary medication laws (see item below, on mental health laws)
while in the Senate Government Operations Committee officials were
arguing against the voluntary (but doctor-approved) medical use of a
drug whose only drawback seems to be an image problem. Even the American
Medical Association now acknowledges the palliative effects of
marijuana.
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Changes
To Mental Health Laws Turned Back
The Douglas
administration tried but failed to make changes to the
involuntary
medications law. It also sought to collapse commitment and involuntary
medication into one procedure.
The proposals, contained
within the administration's Challenges for Change bill, were part of an
ongoing struggle to deal with the planned closing of the state hospital
in Waterbury. The plan has been to have designated
regional hospitals provide necessary mental
health services.
Contention has arisen around exactly how
those hospitals would carry out the important procedures that provide
the due process needed to commit someone or force them to take
medication. The ACLU, and other advocates, believe the proposals violate
due process rights and increase coercion.
Despite this year's
success in fighting these changes, the issues won't go away until the
state addresses the need for services now provided at the state
hospital. (It should be noted that legislation did pass to send
individuals back to court who were sent to an in-patient setting for
forensic psychiatric evaluation but were found not to need
hospital-level of care. We'll be watching this to see if it leads to
inappropriate incarceration.)
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Major Shift Ordered For
Corrections
The inevitable finally occurred this session -- the
Legislature, and the governor, realized that throwing more people in
jail for longer periods of time is a very expensive venture. And the
venture is hard to justify when crime rates haven't increased.
The
result, forced by the state's financial challenges, was a decision to
reduce the state's prison population. That will come through a variety
of measures. For example, nonviolent detainees who can't make bail and
offenders who have met
their minimum sentences will await their court dates or
serve their remaining sentences in their homes and communities.
There
was pushback from communities who fear they will become "dumping
grounds" for released offenders. Some limits were placed on how many
people can be released in certain places.
We
agree with career Corrections officials, however, that prison is not
the best
place for most offenders. Public safety can be protected, and offenders
rehabilitated, in suitable placements outside of locked facilities. In
the end, it took money -- or the lack thereof -- for this viewpoint to
prevail.
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Campaign Finance Changes
Fizzle
The Senate tried to latch on to national
anger at the U.S. Supreme Court's Citizens
United campaign finance decision, but the effort came to
nothing.
The Citizens United
decision lifted the ban on corporate spending in federal elections.
Some Vermont politicians worried corporate money was about to flood
Vermont politics. They proposed tough disclosure requirements and huge
fines for any violations.
Vermont has never had a ban on
corporate contributions in state elections. Most legislators saw little
need for a draconian law that might end up addressing a nonexistent
problem. Their skepticism sunk the measure.
Controversy remains
as to what campaign finance law -- if any -- is currently in force,
given the overturning in 2006 of the state's 1997 law by the U.S.
Supreme Court. What is certain, however, is that Vermont has some of the
weakest candidate financial disclosure laws in the country. The state
has been loathe to pierce a veil of privacy that continues to shroud
candidates' net worth. We have no way of knowing what financial
conflicts might exist for statewide and legislative candidates unless
candidates voluntarily disclose their financial information. Sometimes
that happens, and sometimes it doesn't.
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Cyber-Bullying Bills Seen
As Problematic, Rejected
Three bills around
hazing, harassment, and bullying (in particular, cyber-bullying) were
considered this session. Only one, H. 648, requiring private colleges
to adopt and enforce hazing and harassment policies (as public colleges
are required), was passed.
We felt that the two other bills (H.
575 and H. 691) presented significant civil liberties problems. We
testified against them because of the way they would have extended
schools' authority beyond school grounds or school events to discipline
children's behavior. What children do outside of school is largely
parents' responsibility. And there's already a state law addressing
mis-use of the Web, cell phones, and other electronic media.
We
offered alternative language that would have granted schools limited
authority to discipline for some off-campus conduct while still
respecting the discipline guidelines laid out by the U.S. Supreme Court
in the seminal Tinker v. Des Moines
case.
The issue appeared problematic enough that neither
cyber-bullying bill left the House Education Committee.
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Profiling By Age Allowed In Highway Safety Bill
We expressed no concerns about a ban on texting while
driving, but we did argue against a primary seatbelt enforcement law.
That's because giving police another reason to pull over a driver for an
infraction that can be hard to detect can lead to profiling -- by race,
or other characteristics.
The House and Senate, unwisely,
decided to ensure profiling takes place by establishing primary
seatabelt enforcement -- but only if you're under 18. That means that an
officer can't pull you over if he or she thinks you aren't wearing your
seatbelt UNLESS the officer thinks you're under 18.
This is,
essentially, permissible profiling (by age), and will no doubt result in
police stopping people who may be 20, 25, or even older -- even though
the law doesn't permit them to be stopped for seatbelt enforcement.
We
have consistently argued that if a primary seatbelt law is passed,
police should be required to collect "stop data" (data on race, gender,
and age). The stop data can then be analyzed to make sure profiling
isn't occurring. The House and Senate should have realized that it's
especially important to collect stop data when there's an "under-18" law
so there's data to show whether police are restricting their stops to
the appropriate age population.
The seatbelt law as passed is
likely to lead to so many complaints that seatbelt supporters will argue
next session that primary enforcement should be extended to everyone.
We'll request -- again -- that stop data be collected.
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Donor Anonymity Bill Derailed
An effort failed to provide statutory
protection to the names of people donating to the University of Vermont,
the Vermont State Colleges, and the Vermont Student Assistance
Corp.
Those institutions' current practice is to keep
confidential the names of donors wishing anonymity. The institutions'
lawyers cite a provision of the state Public Records Act that allows
personal financial information collected by state agencies to be
private.
But the institutions don't want to have to litigate the
question of the applicability of the law should a public records request
for donors' names be made. An exemption to the Public Records Act would
provide the sought-after assurance of anonymity.
The state's
print, broadcast, and online news media exploded in outrage, and forced
backers of the bill to retreat. In the end, the bill was "ordered to
lie" in the Senate.
The issue pointed to the need for a review of
the state's Public Records Act. That law says information collected by
government is public unless specifically exempted. Originally, there
were a dozen or so exemptions. Now, there are more than 230. Some of
them aren't even relevant because the information described is no longer
collected.
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Innocence Protection Bill
Weakened
A bill (S. 153) that would have enhanced
safeguards in the state's original Innocence Protection Act (passed in
2007) met stiff opposition from the law enforcement community. S. 153
didn't pass both chambers, but portions were attached to the judicial
restructuring bill (which did pass). The end result was mixed.
Independent oversight of the state's crime lab was nixed, police beat
back a requirement that custodial interrogations be recorded (at least
for two years, when the issue will be considered again), and state
officials were ordered to draw up best practices for eyewitness
identifications (such identifications are a leading cause of wrongful
convictions).
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Laptop Ban In Senate Lifted
A Senate rule put in place in 2008 that banned the
use of laptop computers by advocates, lobbyists, and other members of
the public in the Senate gallery was lifted this session. The ACLU had
complained that the rule unfairly discriminated against the public since
journalists were allowed to use computers in the same places. The rule
was also embarrassingly inconsistent with the state's public embrace of
e-technologies. The 2008 rule codified a practice that had grown under
the Senate's presiding officer, Lt. Gov. Brian Dubie. As early as 2005,
non-journalists were told to leave the chamber if they wanted to use
their laptops, even to look up bills or the day's Senate calendar. Rules
for making unnecessary noise or creating a disturbance remain in place.
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Frivolous Tax Protest
Penalty Rejected
The state Tax Department asked
the House Ways and Means Committee for authority to impose a "frivolous
tax protest penalty" on a taxpayer "who raises objections to an
assessment or refund denial based on previously judicially rejected
tax-protest arguments." It was unclear whether many Vermonters raise
some objections, but the Tax Department wanted to be able to fine such
scofflaws up to $1,000. First Amendment freedoms -- such as the right to
protest government action -- can only be restricted if government
identifies a specific, real problem and shows how the restriction will
work. The restriction must be narrowly tailored to do the minimum to
solve the identified problem. The Ways and Means Committee decided that
test hadn't been met, and rejected the request.
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Upcoming
Event: Civil Liberties Over Lunch In Middlebury
Want
to talk about civil liberties as you munch your lunch?
The Ilsley
Public Library in Middlebury and the ACLU have teamed up to sponsor a
four-part reading and discussion series on challenges to and protection
of basic rights. The discussion began in February but runs through May
19. The final presentation is:
- Arc of Justice: A Saga of Race, Civil Rights, and Murder in the
Jazz Age by Kevin Boyle, May 19, guest speaker ACLU-VT Executive
Director Allen Gilbert.
The discussion takes place at
12:15 p.m. at the library.
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