The most important civil liberties action in the 2012 legislative session was defeat of a proposal that would have provided police with warrantless access to patient information from the state Health Department's prescription drug e-database. The most important aspect of the session was its chaotic nature, with an unusually high number of bills tacked onto other bills and numerous challenges to what was “germane” and what wasn’t. By the end of the session, everyone – including legislators – was scrambling to untangle what had happened, and what hadn’t. Since this was the end of a biennium, the next legislature starts all over; no bills can be held over. Below you’ll find a quick summary of bills or issues we followed; click the link at each item for additional information.
- Prescription drug database -- Police denied warrantless access to patients’ e-database information.
- Racial profiling -- New study authorized, bias-free policing policy mandated, but collection of “stop data” still voluntary.
- Bullying and harassment– Schools directed to do more to fight bullying, and standard for legal determination of harassment clarified.
- School consolidation– Fatter merger incentives offered, pulling more money from Education Fund and chipping away at school funding equity.
- Search warrants– Database listing search warrant applications, service, and returns to be established.
- Access to police records– Supreme Court invites legislature to act if records should be made available to public, but issue referred to (another) legislative study committee and the authorizing legislation gets lost in the end-of-session mash-up.
- Police professionalism– Licensing of police would be required under a bill that’s been referred to a study committee.
- Internal police investigations– Perennial bill shielding all records of internal police investigations from the public also to be studied further.
- Open meetings– Bill passed last year by Senate making significant changes in state’s open meeting law dies.
- Marijuana decriminalization– Efforts fail again this year, but new study promised for next year.
- Smart meters– Moratorium placed on opt-out fees, privacy/security to be taken up in Public Service Board proceedings.
- Death with dignity– Renewed attempt made in Senate to pass bill, but key committee blocks consideration.
- Mental health– State hospital closed; treatment facilities around state will provide "continuum" of services.
- Property tax “prebate” information– After many years and a lawsuit, prebate information affirmed as confidential.
Prescription drug database (H. 745 as passed by House; H. 745 as passed by Senate, found on p. 2776 of April 30, 2012 House Calendar). The effort by the Shumlin administration and the state Senate to allow police warrantless access to Vermonters’ prescription drug information from a state database came to an end on the last day of the session, when the bill, H. 745, died in conference committee between House and Senate members. The House argued for passage of 15 of 16 main provisions in the bill, but would not accept the 16th – warrantless access. The Senate conferees dug in their heels and refused to pass any parts of the bill unless warrantless access were included. Fall-out from the stand-off spilled over into testy post-session comments, reflecting the attention the bill had gathered. Gov. Peter Shumlin and Senate President Pro Tem John Campbell vowed to bring up the warrantless access issue again next year. But clearly Vermonters are uneasy about police authority to reach into Vermonters’ personal health records. When the prescription drug database was created in 2006, Vermonters were assured their data would be safe from unwarranted access and would be kept private. The push only five years later for warrantless access was seen by many as a breach of trust that could have serious consequences for the building of the state’s health information e-exchange, an important piece of the state’s health care reform efforts. The ACLU has argued consistently that private data held in databases by government or private companies should not be accessed without a warrant. The fight over H. 745 wasn’t just about prescription drug records and when police can access them. It was about police access to other medical records, to cell phone tracking records, to GPS readings, to smart meter data, and to digital records in any kind of database. The House, fortunately, agreed information about our private lives deserves the protection of the Fourth Amendment and Article 11 of the Vermont Constitution.
Racial profiling (H. 535). This bill authorizes a study of existing police and corrections data to determine the extent of racial profiling by law enforcement and racial disparities in the state’s prison population. It requires every police department in the state to adopt a bias-free policing policy. It does not, however, require the collection of “stop data” by all police departments. Instead, departments are encouraged to work with the Chiefs of Police Association “to extend the collection of roadside-stop race data uniformly throughout state law enforcement agencies, with the goal of obtaining uniform roadside-stop race data for analysis.” While this is a good step forward, the state’s speed at reviewing and ending any racial profiling has been glacial. Only one other state in the country does not require the collection of stop-data – Mississippi.
Bullying and harassment (H. 771). Changes to the state’s school bullying, harassment, and hazing laws took on the “add-me” form that characterized much of the legislation passed this session. In this case, the changes were lumped in with the annual miscellaneous education bill (despite their existence in a separate bill introduced last year and reviewed extensively). Schools will have to adopt anti-bullying, harassment, and hazing policies at least as stringent as model policies developed by the state Education Department. If a school doesn’t adopt such policies, the school will be presumed to have adopted the state model policies – an interesting new approach to mandating statewide policy adoption. The legal standard that must be met to claim harassment has occurred was clarified; the Vermont Supreme Court had previously set a standard that was felt to be improbably high.
School consolidation (S. 113). This bill started out as a bill to address child abuse and neglect, and mandatory reporters, but it ballooned into a second miscellaneous education bill. Contained within the bill are generous incentives to encourage school consolidation – within supervisory unions and among supervisory unions. Some of the incentives are in the hundreds of thousands of dollars; these are in addition to tax breaks that a law passed two years ago provides. Money to cover the incentives and breaks will come from the Education Fund – which means taxpayers from around the state will bear the costs, ultimately driving up everyone’s tax rates. Schools that merge will benefit while non-merging schools will lose. The ACLU has worried about these incentives since the Douglas administration begin pushing school consolidation in 2010. We have nothing against mergers, or merger incentives. But raising everyone else’s taxes simply to encourage mergers -- regardless of whether the merger saves money, and regardless of whether students' learning opportunities are increased – isn’t right. Granting towns unequal access to school funds, especially for uncertain results, violates the equity provision of the Vermont Supreme Court’s 1997 Brigham school funding decision in a case brought by the ACLU-VT. It is dangerous whenever legislators create 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 15 years (a conclusion affirmed yet again this year in the Picus Report commissioned by the legislature). We predicted in 2010 that one carve-out leads to other carve-outs – and that’s exactly what happened this year. (See our 2010 memo on merger incentive carve-outs.)
Search warrants (S. 138, as passed the Senate). This bill eventually became an omnibus crime bill, but ultimately died in the jockeying and confusion of the legislature’s last days. For the search warrant portion, the bill’s demise didn’t matter. The legislature’s drafting and consideration of a bill that the judiciary create and maintain a publicly available searchable database of warrants applied for, granted, and returned was enough to stir the judiciary to action. Everyone had been embarrassed by the press’s disclosure that no such database existed, and that it was virtually impossible to find out how this key element in legal searches was being utilized. The Supreme Court issued an emergency order to create the database. Efforts in the legislature to restrict public access to warrants through “sealing” were turned back – not so much on the grounds the public should generally be able to see what’s in a returned warrant, but on the grounds that the courts already have authority to seal warrants and such action should remain at judicial discretion.
Access to police records (S. 138). The public’s right to know what police are up to has become an increasingly contentious point as law enforcement has pushed the limits on turning the public away when newspapers or private citizens seek police records. The police have hidden behind a section of the state’s public records law that says “records dealing with the detection and investigation of crime” are exempt from public inspection. The exemption is so broad that police have withheld documents as innocuous as radio logs. A series of lawsuits -- some filed by the ACLU, others by news organizations -- has sought to narrow the exemption. At first it appeared the state Supreme Court was moving in that direction. But this spring the court issued an opinion that said the public records law as written “permanently and categorically exempt(s) all criminal investigatory records from public disclosure.” It doesn’t matter that the federal government and nearly half the states apply an “access absent harm” test to determine if a police record should be public. If you want police records treated differently, one justice said, rewrite the law. While this is indeed what the ACLU, the Vermont Press Association, and other open government advocates have urged for several years, the legislature has not taken up this task with a great deal of speed. Instead, a provision in what became this session’s omnibus crime bill sought to punt the issue to yet another study committee – the Nonviolent Misdemeanor Sentence Review Committee. That would have been the fourth legislative committee in 16 months to consider the police records access issue. No due date for a report was set – the committee was simply to report annually to the legislature, until the committee goes out of existence in 2014. But then the Senate tried to add just one more thing to the bill, already jammed with disparate provisions, on the second-to-last day of the session – and the bill died. So the football is still rolling around somewhere on the legislative gridiron, a loose ball no one seems interested in picking up anytime soon.
Police licensing and complaints (S. 248). A bill to license police officers, introduced in part because of a string of questionable actions by Hartford Police Department officers, got a hearing in the Senate Government Operations Committee but was quickly shunted to an improvised study group. The study will be done through a sub-committee of the state Law Enforcement Advisory Board, which is currently chaired by the executive director of the Vermont Criminal Justice Training Council, Rick Gauthier. The ACLU is part of the sub-committee. We have long advocated for greater police oversight. About 45 professions, from teachers to doctors to plumbers to beauticians, are currently licensed, but not police officers. We think licensing would provide accountability that currently is lacking. Public trust is one of the most important tools police officers can have in doing their jobs; they stand to benefit from a consistent statewide system that does more than provide the basic training of the current police certification system. (An interesting provision of H. 535, the racial disparities bill, seeks to establish a way the public can make complaints about police. The provision’s intent was presumably to cover racial profiling complaints, but setting up a mechanism would be a positive step in addressing a perennial public concern that there is no meaningful way to file complaints about police and have them reviewed by an impartial body.
Internal police investigations (S. 87). This bill has come up every session for the last decade, failing each time to move very far in the legislative process. The bill, strongly supported by state law enforcement, would keep internal police investigation records secret. One would think that after all the stories over the past several years about “bad” cops the profession would want to publicize the ways it weeds them out and protects the good work done by the great majority of Vermont police officers. Continuing to insist on secret investigations seems a self-inflicted wound. The Senate Government Operations Committee took some testimony on the bill this session but decided to solicit further comments from interest groups over the summer and fall. The committee may then take up the issue again next session.
Open meetings (S. 67). This bill, which would have made significant changes to the state's open meetings law, passed the Senate last year, was about to be considered on the House floro, but then got shelved. The bill wasn’t taken off the shelf this year, and it died from inaction. S. 67 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." The bill’s failure was indicative of a lack of interest this year in open government issues – a marked contrast to last year, when the governor and legislature made them signature issues.
Marijuana decriminalization (S. 134). This bill proposed to make possession of less than two ounces of marijuana a civil rather than a criminal offense and to decrease criminal penalties for possession of less than a pound of marijuana. A similar bill, but with different penalties, was introduced in the House as H. 427. Neither bill got very far. Supporters in the Senate tried to attach the bill to the prescription drug database bill (H. 745), but failed. In the House, the bill was bottled up in the House Judiciary Committee; a move to pull it out of that committee and debate the measure on the floor of the House failed. House Speaker Shap Smith has been the obstacle to change; Gov. Peter Shumlin favors decriminalization, and the state’s Public Safety commissioner has said he will not oppose it. Smith agreed to a study for next year, the first signal he’s given he might drop his resistance to decriminalization.
Smart meters (S. 214). Legislators were more keyed in to smart meter concerns this year than last, and a bill around privacy and opt-in/opt-out was taken up. The ACLU argued privacy concerns could best be addressed in ongoing PSB proceedings, so legislators' attention focused on possible adverse health effects of smart meters and opt-in/opt-out issues. The Vermont Department of Health had done a study that concluded smart meters posed limited or no adverse affects. Advocates countered there were adverse effects, and presented evidence from experts rebutting the Health Department's claims. In the end, legislators decided that people who don't want a smart meter installed at their homes can opt out and cannot be assessed additional fees -- at least until July 2013. We will continue to work through the PSB proceedings to require police to have a warrant before they can access customers’ smart meter data, and to direct any subpoenas for data to the customer and not the utility (thereby ensuring the customer a chance to contest the subpoena).
Death with dignity (S. 103). The Senate was the scene of this year’s effort to gain approval of a death with dignity (also known as “patient choices”) bill, but like three attempts before, it failed. Gov. Shumlin favors the measure, as does House Speaker Shap Smith. But procedural blocks remain. This year the block was the Senate Judiciary Committee, which held hearings on the bill but did not vote it out of committee. That incensed other senators; they argued the bill deserved to be debated before the full Senate. Members of the Senate Health and Welfare Committee then tried to attach the bill to another bill (dealing with tanning salons) – a move that ultimately failed but did provide a limited forum for debate on the Senate floor.
Campaign finance (S. 20, Senate’s last draft found on p. 1461 of May 1, 2012 of Senate Journal). Once again the legislature declined to take up a campaign finance bill, despite the fact a number of the state’s campaign finance laws remain in limbo following the Randall v. Sorrell decision of 2009. The graveyard for campaign finance reform was the Senate, where a bill was bottled up for more than a year. When an opportunity to discuss it on the Senate floor came up this year, senators balked when Sen. Peter Galbraith proposed banning corporate contributions. Galbraith waved a list of contributions made by corporations to various senators, but senators insisted they were not influenced by such contributions. A separate resolution calling on Congress to restrict corporate influence in politics was, however, passed. It suggested a constitutional amendment might be in order around the issue of “corporate personhood.”
Drivers licenses for migrant workers (S. 238). The legislature recognized the problems migrant workers have in traveling and accessing services and medical care, as well as purchasing basic necessities. A state driver’s license would help them out, and also serve as identification. Yet lawmakers weren’t ready to grant licenses; they want further study of the issue first, covering among other things “the comparative costs and benefits, including potential conflicts with federal law, of adopting one or more licensing and identification frameworks in Vermont.” But even a study is a positive step in what has been a very difficult area for Vermont migrants to navigate. The agricultural community continues to feel that migrant workers are essential to keeping Vermont farms operating, and Gov. Peter Shumlin has supported them. The ACLU has worked with other advocacy organizations on the drivers’ license issue.
Mental health treatment facilities (H. 630). One of the major achievements of this legislative session is the closing of the Vermont State Hospital in Waterbury, an antiquated facility that nearly everyone agreed should be replaced but no one could agree on what to replace it with. Tropical storm Irene, which greatly damaged state facilities in Waterbury, including the hospital, forced the question. A decision was made to “right-size” the state’s mental health system, permanently closing the state hospital and replacing it with a number of smaller facilities with “acute inpatient beds” throughout the state. The goal is to “provide flexible and recovery-oriented treatment opportunities and to ensure that the mental health needs of Vermonters are served…(and) that the agency of human services fully integrate all mental health services with all substance abuse, public health, and health care reform initiatives, consistent with the goals of parity.”
Property tax prebate information (H. 782 , found on p. 37 of bill, the annual miscellaneous tax bill). The issue of the confidentiality of teh amount of homeowners’ property tax prebates has been debated for five years. (Prebates are offsets the state makes to homeowners’ property tax bills so the education portion of the bill is adjusted for the homeowner’s income.) Last year prebate privacy was the subject of a successful lawsuit by the town of Manchester, which claimed the information was confidential and could not be disclosed. While everyone agreed other parts of homeowners’ property tax bills are public (total bill and property appraisal, for example), the prebate information was deemed off-limits because it could be used to determine (sometimes with an accuracy of a few dollars) homeowners’ personal incomes. The legislature could have tried to reverse the court decision and deem the prebate amount public (as the House wanted to do in 2008, but the Senate didn’t); however, the legislature instead affirmed that the information is confidential and can only be disclosed in limited circumstances (to an escrow agent, for example). The ACLU has argued this position since the issue arose in 2007 and threatened to bring litigation if any town disclosed the information. When Manchester was forced to defend its officials’ withholding of the information, the ACLU filed an amicus brief supporting the town’s position.