It was a very busy session for civil liberties at the Vermont Statehouse this year. A number of positive bills with important civil liberties implications passed. Other bills were introduced but didn’t advance – although they’ll still be up for consideration in 2014, since 2013 was the start of the two-year biennium.
Below are highlights of issues we were involved in – through proposing legislation, testifying, lobbying, working with other advocates to build grassroots support, providing legal expertise, or monitoring. Click the links in the highlights section for detailed information about each item; click the bill links in the details section to access the bill language.
- Police criminal investigation records access broadened. The federal FOIA standard balancing the public’s right-to-know with legitimate privacy interests will be used to determine the release of criminal investigation records.
- Patients granted end-of-life choices. A compromise between an Oregon-style “death-with-dignity” law and a “best medical practices” approach was reached to address an issue that’s come before the legislature for nearly a decade.
- Possession of small amounts of marijuana decriminalized. An ounce or less means a civil violation – basically, a ticket and a fine – rather than a criminal charge.
- Migrant workers can get drivers’ license. They’re to be called “drivers’ privilege cards”; farm workers and others who may not be citizens can obtain them and drive legally.
- Automated license plate readers to be regulated. How the data is stored, who has access to it, and how long it’s kept will be subject to strict statutory rules.
- Privacy of medical records in prescription drug database preserved. Revisions and expansion of drug laws focused on health rather than law enforcement in combating abuse.
- Campaign finance reform falters again. Contribution limits, corporate spending, and frequency of reporting got all the headlines, but the really key issue was lost in the shuffle – the continuing lack of a robust electronic reporting database with online access and easy search functions.
- Danger of drones recognized but legislation held. A bill was introduced to regulate law enforcement use of drones, but it came late in the session and never got a hearing.
- No Facebook privacy for job applicants. The legislature decided it wasn’t going to tell employers they can’t demand that a job applicant turn over passwords to social media sites to see what the applicant may be writing to friends.
- Taser regulation bill stutters. The hope is that the law enforcement community will act on its own to regulate use of the powerful stun gun weapons, blamed for the death of Macadam Mason last summer in Thetford.
- Professional regulation of police and police internal investigations reform put off. As the rundown on several other issues may suggest, there’s a pot simmering around issues related to police oversight.
- Pre-K vouchers debated but not passed. An expansion of pre-kindergarten education options would have created a voucher system that, among other things, raised the question of whether religious institutions were receiving state funds to provide public education programs.
- Nondiscrimination on basis of gender identity guaranteed in provision of health services. An administrative act rather than legislative fiat addressed the need for equal access to health services by transgender individuals.
- Equal pay for equal work by men or women mandated. This bill is about money, but a good many other things as well.
Police criminal investigation records access broadened (S. 148). Reporters and members of the public have long tussled with Vermont police over access to criminal investigation records. In 2012 the Vermont Supreme Court ruled there is no access: the “(c)(5)” exemption in the state’s public records law -- 1 VSA 317 (c)(5) – “permanently and categorically” seals the records from disclosure, the court said. The legislature had been reviewing the numerous exemptions to the public records law, but this decision sped up review of the police exemption -- especially since police actions had recently come into question in several high-profile cases. We argued for, and the governor supported, adoption of the federal Freedom of Information Act standard, which requires disclosure unless police or others can show harm if information is released. The legislature agreed to incorporate the six provisions of federal law that form the balancing test that’s applied to determine if withholding a record is warranted. An extra provision was added to express the legislature’s intent that the names of crime victims and witnesses should normally be withheld, but that redaction of names doesn’t mean the rest of the record shouldn’t be released. The bill is a major victory in improving transparency in an area that is all too often shielded from public view, and accountability is lacking.
Patients granted end-of-life choices (S. 77). An end-of-life choices bill has been offered in the statehouse for the last 10 years. Each session it was tweaked, and each year it got a little bit closer towards passage. This was to be the year the bill made it all the way through – which it did, but not after one of the more fractious and tortured debates seen in recent memories. The Senate was evenly split, 15-15, between two poles: One side favored adopting a full-scale “death-with-dignity” law that detailed numerous requirements and provided comprehensive services to someone within months of dying from a terminal illness, and the other side favored doing nothing. Opponents finally agreed to accept language that simply said a physician couldn’t be held liable for assisting someone who had chosen to die because of an end-of-life illness. Supporters went along with the minimal language just to keep the bill alive and to give the House a chance to improve it. The House studied the issue, and offered back another full-scale “death-with-dignity” bill. This set up a dramatic fight that led to one of the more interesting compromises anyone could imagine. The two bodies agreed to use the House’s comprehensive “death-with-dignity” approach for three years, and then switch to the Senate’s minimal “physician immunity” approach after that. How the switchover will play out is uncertain (presumably, a new bill could be offered to retain the comprehensive “death-with-dignity” approach, despite the agreed-upon sunset). But for now, Vermont joins only three other states – Oregon, Washington, and Montana – in granting patients the right to decide how they wish to live out their last days.
Possession of small amounts of marijuana decriminalized (H. 200). Possession of marijuana remains illegal in Vermont, but if you’re caught with an ounce or less you won’t be a criminal. You’ll be issued a ticket and ordered to pay a fine -- $200 for the first offense, $300 for the second, and $500 for third and subsequent offenses. If you’re under 21, you’ll be sent to court diversion. No criminal history record is created in either case. That’s an important part of the bill. “Collateral consequences” of a drug charge range from denial of student financial aid to the inability of obtaining professional licenses. The bill enjoyed widespread support across the political spectrum, and the governor has indicated he’ll sign the measure. Vermont joins an increasing number of states decriminalizing small amounts of marijuana. Possession remains a crime under federal law, but federal officials usually save their policing resources to go after dealers and growers.
Migrant workers can get drivers’ licenses (S. 38). Vermont relies on an increasing number of Mexicans and Guatemalans to run the state’s dairy farms. It’s an open secret that many of them are here without proper documentation. That has left many migrants in work situations little better than servitude. Among other challenges, they haven’t been able to get drivers’ licenses, which has made them subject to the good graces of their employers when they need to go shopping for groceries, to see a doctor, or visit friends at other farms. The group “Migrant Justice” launched a campaign two years ago to help them get drivers’ licenses. Put off first when a license bill was turned into a study committee, they persisted and this year won mobility for workers – a chance to apply for a state “drivers’ privilege card” that will allow them to drive a car, legally, without being interrogated about their work status. This bill is an act of justice, fairness, and appreciation for people many of us will never meet but who rise early, stay up late, and often leave their families for months on end to produce the milk we drink. This is a law to be proud of.
Automated license plate readers to be regulated (S. 18). Very little was known about ALPRs before we did a series of public records requests last summer and found out more than three dozen departments in all parts of the state had them, and that data was being uploaded to a centralized computer database at the state Department of Public Safety. Big data, it seemed, had come to Vermont, and the ALPR systems were completely unregulated. Sen. Tim Ashe of Burlington introduced a bill to regulate the systems. He helped shepherd it through the Senate, but then it was sidetracked in the House – until the last week of the session, when it was quickly taken up and ultimately passed. What legislators heard when the bill hit the House floor surprised many. They thought ALPRs seemed the very incarnation of George Orwell’s Big Brother. Some argued the systems should be put on hold. Given the fact they’ve been up and running here in Vermont for three years, however, regulation of what already exists seemed the wiser course. The law shortens the length of time data may be retained, clearly defines who can have access to the data and under what circumstances, and requires annual reporting on the use of ALPRs and data requests.
Privacy of medical records in prescription drug database preserved (H. 522). Last year’s legislative session ended on an acrimonious note as the House and Senate fought to the last hours over whether police should be allowed warrantless access to records in the state Health Department’s Vermont Prescription Monitoring System. The result was defeat of a comprehensive drug law aimed at fighting drug misuse and abuse. This year, the House focused like a laser on specific drug problems identified in last year’s bill and fashioned solutions that doctors, nurses, drug counselors, and even police said would work. Warrantless access to Vermonters’ prescription drug records wasn’t included in the bill, and in the end wasn’t even proposed – even by the Senate, which last year killed the bill because of its absence. This year’s bill includes common-sense measures such as providing immunity for helping someone experiencing an overdose and allowing the use of drugs like Narcan (also known as “Naloxone”) to counter possible overdoses. These are important, positive steps that put people’s health first. The Public Safety Department indicated, once again, it would likely be back again next year to ask for warrantless access to drug records. But the issue is likely to get more complicated if plans to merge prescription drug records and general medical records move forward.
Campaign finance reform falters again. Since Vermont’s campaign finance law was tossed out by the U.S. Supreme Court in 2006, the legislature has tried numerous times to pass a new statute. A gubernatorial veto stopped one measure, legislative inaction stopped two others, and last year, a reform bill deadlocked on the Senate floor over corporate contributions. This year, the effort stalled when the House insisted on limiting contributions to so-called “Super PACs” a move sure to cause a constitutional challenge that nearly anyone who follows the Supreme Court agrees would probably bring the law down. So once again nothing got passed. “Nothing” includes no new reporting rules for candidates and little extra money for the Secretary of State to build an effective database where the public can track the money flowing through politics. The irony of the state’s failed efforts is that it’s not inconceivable the Supreme Court could soon remove all campaign limits – meaning the state argued years over limits that in the end didn’t matter, and never constructed the system that could bring some measure of accountability to the campaign financing system.
Danger of drones recognized but legislation held back (H. 540). Within five years after federal approval of drone access to U.S. airspace, up to 7,500 non-military unmanned devices will be flying overhead, predicts the Federal Aviation Administration. The high-tech devices no longer seem like science fiction. One Vermont lawmaker, Rep. Kevin Christie of Hartford, heard complaints about drones from a constituent over the Town Meeting break. He came back to Montpelier convinced it’s time to plan for how they’ll be used. He introduced a bill in April to prohibit drone surveillance without a warrant, except in emergency situations. He was joined by two dozen other representatives from across the political spectrum — Democrats, Republicans, Progressives, the right, the left, and the center. Other states have seen drone legislation. The Virginia General Assembly passed a bill placing a two-year moratorium on the use by state law enforcement agencies of the unmanned devices. The city of Charlottesville, Va., banned them. The ACLU’s tack has been to improve privacy laws to ensure that the new technology will be used responsibly and consistently. We don’t want to wake up one morning and realize we’ve become a surveillance society in which our every move is monitored, tracked, recorded, and scrutinized by the authorities. H. 540 is expected to be taken up next year.
No Facebook privacy for job applicants (S. 7). Sen. Dick Sears introduced S. 7 to protect job applicants from having to give prospective employers access to their social media accounts before being considered for a job. The legislature decided it wasn’t going to demand such a thing of employers; rather, it would ask a bevy of experts to study the issue and report back next year. Then some business-minded advocates identified the corpus of the bill as a good carrier for a late-starting “patent trolls” bill. “Patent trolls” are allegedly sketchy companies that have bought up patents from bankrupt corporations or others and then claim – some say fraudulently – that certain other companies are infringing those patents. The “target” companies face exorbitantly expensive litigation to fight off the trolls, or they can settle the claims out of court. The settlements are sometimes likened to extortion. In the last days of the session, the patent troll bill was touted as critical legislation that had to pass – so critical that the trolls were added not just to S. 7 but also to H. 299, a propane refund bill. Both bills appear to have passed, ensuring copious troll detection but no Facebook privacy protection.
Taser regulation bill stutters (H. 225). Doubt lingers that Vermont police are acting responsibly in their use of the powerful electric stun guns known as “Tasers.” While a comprehensive Taser regulation bill was introduced in the House, there seems to be little appetite to take on what has become widespread deployment of the increasingly controversial weapon. About 30 police departments have them, including the Vermont State Police. The Taser shooting last June by a VSP trooper of a Thetford man, Macadam Mason, and Mason’s subsequent death, led to questions about whether the officers using them have been trained properly and whether Tasers are being used inappropriately as pain devices when a person doesn’t immediately comply with an officer’s orders. Their use on vulnerable populations, such as the disabled or mentally distressed, have led many to wonder what police know about many of the people involved in incidents they’re called to. H. 225 would require a statewide policy on training and would acknowledge Tasers can kill and should therefore only be utilized when a person poses an imminent danger to himself or others.
Professional regulation of police (H. 61) and police internal investigations put off (S. 96). The consideration of several bills governing police actions indicated increasing legislative interest in police oversight. Use of Tasers was considered, but put on hold; licensing of police was looked at and -- so far -- rejected; and while the criminal investigation records access bill may increase transparency around certain police actions, no such transparency is guaranteed for internal investigations of police officers. Despite the fact that the Vermont Constitution squarely vests police oversight with the legislature (Article 5), historically lawmakers have been reluctant to intervene in what has come to be seen as a “local control” issue. The legislature defers to the individual agencies that oversee police forces – be they local select boards, city councils, or the Department of Public Safety. Consequently, the notion of setting statewide standards for the use of force or the disciplining of wayward officers is largely foreign. Increasingly, however, questions have arisen as to police oversight and accountability. When people learn it’s the police who are policing the police, through internal investigation procedures, questions arise as to how independent such judgments can be. Last year a police licensing bill resulted in a study by the state Law Enforcement Advisory Board regarding whether a professional regulation system similar to other such systems run by the state Office of Professional Regulation should be established for police as well. The report concluded police regulation issues exist, but recommended the profession itself – through the Vermont Criminal Justice Training Council, which operates the Vermont Police Academy – take on the responsibility of greater oversight. The good news in the report was the recognition from within the police profession that greater oversight of officers may be needed. The unknown aspect of the recommendation is whether the profession is up to the task. A litmus test could be if the police profession itself steps up this summer to regulate Taser use. If the profession doesn’t take that on, the legislature could conclude it needs to step in. Such intervention could become a major issue in next year’s legislature.
Pre-K vouchers debated but not passed (H. 270, as passed House). This bill would allow parents of pre-K children to send their child to the pre-K program of their choice, regardless of whether their town has such a program and regardless of whether the program is operated by a public entity. The state would provide funds for up to 10 hours of pre-school education a week – a credit worth about $3,600 over the course of a year. During discussion of the plan, it was discovered that some of the existing programs may be operated by churches. While we worked with representatives to include a provision in the bill that no funds can go to a sectarian organization in violation of the state and federal constitutions, questions remain whether perhaps the separation of church and state has been violated for a number of years under the precursor to this year’s pre-K proposal. The bill was ultimately held back from full legislative deliberation this year, but it is expected to be taken up again next year.
Nondiscrimination on basis of gender identity guaranteed in provision of health services. A bill, H. 304, was introduced this year to ensure that transgender Vermonters do not face discrimination from insurers providing health services. A new law wasn’t necessary, it turned out. In April, the state Department of Financial Regulation (which oversees insurance companies in Vermont) issued an “insurance bulletin” that stated such discrimination is illegal, under both existing state and federal law. Insurance companies “shall not exclude coverage for medically necessary treatment including gender reassignment surgery for gender dysphoria and related health conditions,” the bulletin stated. Vermont’s nondiscrimination laws, as well as the federal Affordable Care Act, prohibit denial of such services. More detailed guidance is expected soon from the U.S. Department of Health and Human Services and The Centers for Medicare and Medicaid Services. Meanwhile, transgender Vermonters don’t need to worry about getting the health care they need. H. 304 isn’t necessary; the protection is already there.
Equal pay for equal work by men or women mandated (H. 99). It’s shocking to think that after 50 years of legislating that women must be paid the same as men for the same work, there’s still the need for a law to provide tools to make that happen. The bill contains numerous provisions protecting an employee’s right to find out how much other employees are making, and protecting from retaliation an employee who complains about pay or working conditions. But the bill is about much more than money. It’s about making it possible for more workers to succeed at work while also succeeding as family members -- through flexible work arrangements, for example. The two-page “Findings” section of the bill is a primer on unfair or uninformed labor practices women face.
For more information on these or other bills, visit the legislative home page at www.leg.state.vt.us