|
|
End-Of-Session ACLU-VT e-update
May 12, 2011 |
|
Legislature Ends On High Note
The 2011 session was a marked departure from the past eight years.
There was a new energy in the legislature, a sense that new ideas could
be explored and passed into law. Gone, for the most part, was the threat
of a gubernatorial veto over a variety of bills. Consequently, bills
that had been considered and passed before, and vetoed, were introduced
again. Bills that previously no one wanted to spend time considering
because of the threat of a possible veto, were introduced. And the
change in administration meant that new initiatives advocated by
Democratic Gov. Peter Shumlin were shaped into bills and, for the most
part, passed by the Democratic legislature. Also gone was interminable
wrangling over the budget, despite very deep cuts in sensitive areas
such as schools and human services.
The removal of constant,
partisan sparring between legislative leaders and the governor allowed
political resources to be spent in other ways. The result was a
productive session that led to at least one trail-blazing bill - health
care - and a slew of other bills less dramatic but still notable. Many
of these less dramatic bills had important civil liberties implications.
Chief among them was a public records reform bill. Others included a
medical marijuana dispensaries bill and a national popular vote bill.
Top
|
|
|
Public Records Law Revamped (H. 73)
When Vermont's public records law was passed in 1976, it had two
glaring shortcomings. The first was that it didn't cover cities, towns,
and school districts; that was fixed the next year. The second was that
it didn't have an effective enforcement mechanism; that was finally
fixed this year. The key provision of H. 73 makes the awarding of
attorneys fees and costs mandatory to citizens or others who go to court
to enforce the public records law, and win. Up to now, judges have had
the discretion to make awards - and they rarely did. Under the new bill,
a public agency can still play under the old "may"-award-fees rule if
it decides within 20 days of being sued to turn over the records. Other
important aspects of the bill include redaction of exempt information as
an alternative to withholding an entire record; assurance of
accessibility for records requestors with a disability; and a study
committee to look at the 240-plus exemptions that have been globbed onto
the law over the past 35 years. And, inspection of records will remain
free.
Top
|
Equity In School Funding Preserved (H. 436)
A
provision in the House Ways and Means Committee's miscellaneous tax
bill would have rewarded school districts that had cut their budgets.
The reward would have come in the form of a lower school tax rate.
Despite the fact that a lower budget automatically means a lower rate
for taxpayers, the "bonus" reward plan was a turned-on-its-head version
of the Education Department's failed idea last year to punish schools
that didn't cut their budgets. The provision had been added to the bill
with little discussion. We felt it violated basic school funding equity
principles. We pointed out to members of the House Ways and Means, and
Education, committees that schools that had slashed their budgets the
previous year wouldn't benefit, or that towns facing unanticipated
expenses couldn't get the break. The provision was withdrawn from the
bill. And $1 million -- the cost of the rewards program - went back to
the Education Fund.
Top
|
Human Trafficking Bill Approved (H. 153)
This bill is full of terms you wouldn't see in an ordinary labor
bill - debt bondage, labor servitude, commercial sex, and blackmail.
They all relate to situations and conditions that human rights advocates
say lead to slavery. More than 27 million persons, a large proportion
of them women, are estimated to currently be enslaved around the world.
While Vermont has only seen "elements" of human trafficking, according
to the bill's findings, Vermont is the only state in the Northeast and
only one of the remaining five in the nation not to have human
trafficking legislation. A task force set up two years recommended a
comprehensive statute, based on national models, to bring Vermont in
line with efforts nationally and internationally to combat any problems
that might arise. Traffickers will face tough penalties, and victims
will have rights to fight back, under the new law.
Top
|
Medical marijuana dispensaries established (S. 17)
Despite
a last-minute effort by federal officials to derail establishment of a
dispensaries system, the legislature finally addressed the glaring
weakness of the state's medical marijuana program - a reliable way for
certified patients who benefit from marijuana's therapeutic effects to
obtain the drug legally. Federal officials threatened a number of states
considering similar programs, and some backed down. But Vermont
lawmakers saw this as an opportunity to help a small number of people in
debilitating pain and who can't grow their own marijuana. Safeguards
against the possible abuses raised by federal officials include
oversight of the dispensaries by the state Department of Public Safety.
Top
|
National Popular Vote System Ratified (S. 31)
This
bill, which failed twice before to gain passage, sets up a mechanism
for the election of the president by popular vote, while retaining the
electoral college. Vermont became the seventh state to join a "compact"
whose provisions will kick in when enough states that can, in the
aggregate, deliver 270 electoral votes, sign on. That number is the
minimum number needed to elect the president. When a state joins the
compact, it pledges its electoral votes to whoever has won the national
popular vote, regardless of that state's own vote.
Top
|
|
Schools' Discipline Reach Extended (S. 100)
Key provisions of a bill (H. 412)
that wasn't able to stand on its own were attached at the last minute
to this year's miscellaneous education bill and won passage. For the
first time, Vermont school officials will now have the authority to
discipline students for bullying and harassment that takes place outside
of school. Discipline of children is generally the responsibility of
parents. But the new provisions take the approach that when there is a
"nexus" between out-of-school misconduct and a bullied victim's ability
to access school programs, school authorities may intervene, up to the
point of expelling the alleged bully from school. We were successful in
having the bar for discipline follow the standard in the U.S. Supreme
Court's landmark Tinker v. Des Moines decision.
Top
|
Vanity Plate Restrictions Eased (S. 94)
Last year a Vermont driver, disappointed that he was unable to
obtain a state vanity license plate with the letters and numbers JN36TN,
won a federal court decision that said Vermont's restriction on
religious messages on license plates was unconstitutional. (JN36TN can
be seen as a reference to the book of John in the Bible; in verse 16 of
the third chapter is the well-known Christian phrase, "For God so loved
the world that he gave his only begotten son.") In response, the
legislature faced the prospect of changing the law, not changing the law
and facing more lawsuits, or eliminating the special plate program
altogether. The third prospect quickly emerged as a political "third
rail" - more than 20,000 Vermonters have paid an extra $38 to have a
personalized plate. Additional litigation was viewed as troublesome and
expensive. So the legislature eased some of the restrictions,
particularly around religious messages. You still can't swear on your
license plate, though, or make reference to "a privilege not given by
law in this state." The costs of any further litigation were estimated
to be less than the revenue the state derives from the sale of the
special plates. |
|
New Birth Certificates For Transgendered Individuals (S. 15)
When an individual changes his or her gender identity, the original
birth certificate becomes a source of confusion since the gender is no
longer correct. The opportunity for a transgendered individual to obtain
an updated birth certificate was originally part of a massive vital
records bill (H. 99).
But when passage of that unwieldy bill became uncertain, the birth
certificate provision was added to another bill, on midwifery services
and home births. The provision states that "upon receiving from the
probate division of the superior court a court order that an
individual's sexual reassignment has been completed, the state registrar
shall issue a new birth certificate to show that the sex of the
individual born in this state has been changed.
Top |
|
Open Meeting Bill Introduced But Stalled (S. 67)
Significant changes to the state's open meeting law would have been
made through a bill that cleared the Senate. The House made some
additional changes to the Senate bill, however, and the Vermont Press
Association complained that the bill didn't go far enough. The Senate
balked, and agreement was reached to hold the bill to next year. Further
consideration will start in the House Government Operations in January.
The Senate bill would have created, for the first time since the open
meeting law was passed in the 1970s, a prevailing plaintiff's right to
recover attorneys fees and costs in open meeting litigation. It would
have clarified the reasons for closing the public out of meetings
through executive sessions, strengthened meeting notice requirements,
and established conditions around "electronic meetings." It's
disappointing that both the public records and open meeting bills
couldn't make it into law. The two together would have sent a consistent
message that public officials need to pay attention to both records and
meetings laws. Now the focus of change is just on records -- when (for
local officials at least) open meeting issues usually loom larger.
|
Campaign Finance Reform Shelved (S. 20) Campaign
finance reform was the third "open government" bill the ACLU lobbied
for this year. We focused on why Vermont's campaign finance laws are
routinely given failing grades by national watchdog groups. The reasons
are the absence of candidate financial disclosure statements and
difficult-to-access campaign finance reports. But legislators felt that
disclosure reports are not necessary in a small state where voters
likely have personal knowledge of candidates' finances; legislators also
felt that strides are being made to build an easily-accessible online
database of campaign finance reports. Instead, members of the Senate
Government Operations Committee focused on campaign contribution limits
and corporate spending in campaigns. The former were the basis for the
U.S. Supreme Court's throwing out of Vermont's campaign finance law five
years ago. And the latter have never before been prohibited in Vermont
elections. The governor made it clear he would not sign a bill that
might result in a new round of expensive litigation. And legislative
leaders hesitated at turning off the spigot of corporate money to fund
candidates' campaigns. The bill became contentious, faltered, but
remains in the committee for further consideration next year. Top |
Death With Dignity Bill Held Up (H. 274/S. 103)
This
was the third try at having Vermont adopt a "death with dignity" or
"patient choices" bill for terminally ill patients.Currently in Vermont,
a doctor can be criminally charged for assisting a patient to exercise
end-of-life choices that culminate in death. Only Oregon and Washington
allow doctors to work with patients to control how they die. It was
believed that the changed dynamics in the statehouse would finally spell
success in Vermont. Support was offered by the governor and the House
speaker. But the Senate remained lukewarm to the idea, and Speaker Shap
Smith said he didn't want to take up a bill that wasn't assured enough
votes for passage in both chambers. The bill was held, hopefully for a
fresh start and successful passage next year.
Top
|
|
Police Lose Bid For Access To Prescription Drug Database
Law
enforcement retreated from an agreement made in 2006 that they wouldn't
examine individual Vermonters' prescription records held in the state's
drug database by making a pitch to legislators that they wanted
"limited" access to the records. But their effort failed. The database
will continue to be a database for medical, not law enforcement,
purposes. The request from police came at a bad time. The state is
building an all-encompassing e-medical patient records system. Major
privacy and security concerns have been raised. A huge hurdle to
building the system could arise if people became wary that police may
someday want to access Vermonters' e-medical records -- as police have
shown they now want to access Vermonters' prescription e-drug records.
Top
|
|
"Smart Meter" Privacy Threats Highlighted
S. 78,
a technology infrastructure bill, envisions big changes in the way
Vermonters access the Internet, make calls, and use electricity. It's
the build-out of a "smart grid" by electric utilities that raises
significant privacy issues. In a smart grid, there are "smart meters" in
everyone's home, to monitor and hopefully moderate electricity use. The
meters record exactly how much electricity is being used by which
appliances when -- and transmit the data to utility headquarters for
monitoring and analysis. The ACLU is worried about the collection of
energy use data, and who will have access to it. As we found with cell
phone tracking data, police often want access to databases with
information about individuals' whereabouts or activities. We want to
make sure police have a warrant before any smart meter data is turned
over. We will follow this issue through the utility regulatory process.
Top
|
|
|
|
|
|
|
|
|
