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Tuesday, March 12, 2002
The Senate was called to order by the President pro tempore.
Devotional Exercises
A moment of silence was observed in lieu of devotions.
Pledge of Allegiance
The President pro tempore then led the members of the Senate in the Pledge of Allegiance.
Message from the House No. No. 29
A message was received from the House of Representatives by Mr. Palmisano, its First Assistant Clerk, as follows:
Mr. President:
I am directed to inform the Senate the House has passed a bill of the following title:
H. 568. An act relating to claims against municipal officers.
In the passage of which the concurrence of the Senate is requested.
The House has adopted a Joint Resolution of the following title:
J.R.H. 225. Joint resolution honoring the U.S. Navy Seabees on their 60th anniversary and the U.S. Navy Civil Engineer Corps on their 135th anniversary.
In the adoption of which the concurrence of the Senate is requested.
The House has considered a Joint Resolution originating in the Senate of the following title:
J.R.S. 115 Joint resolution commemorating the bicentennial of the United States Military Academy at West Point.
And has adopted the same in concurrence.
Bill Introduced
Senate bill of the following title was introduced, read the first time and referred:
S. 298.
By Senators Shumlin and Campbell,
An act relating to crimes and procedures involving terrorism.
To the Committee on Judiciary.
Bill Referred to Committee on Appropriations
S. 243.
Senate bill of the following title, appearing on the Calendar for notice and carrying an appropriation, under the rule was referred to the Committee on Appropriations:
An act relating to a cardiovascular health coalition.
Bill Referred to Committee on Finance
S. 241.
Senate bill of the following title, appearing on the Calendar for notice, and affecting the revenue of the state, under the rule was referred to the Committee on Finance:
An act relating to practicing auricular acupuncture for the treatment of alcoholism, substance abuse and chemical dependency.
Rules Suspended; Bill Committed
S. 264.
Appearing on the Calendar for notice, on motion of Senator McCormack, the rules were suspended and Senate bill entitled:
An act relating to reports of abuse, neglect and exploitation of elderly and disabled adults.
Was taken up for immediate consideration.
Thereupon, pending the reading of the report of the Committee on Natural Resources and Energy, Senator McCormack moved that Senate Rule 49 be suspended in order to commit the bill to the Committee on Finance with the report of the Committee on Natural Resources and Energy intact,
Which was agreed to.
Bill Referred
House bill of the following title was read the first time and referred:
H. 568.
An act relating to claims against municipal officers.
To the Committee on Judiciary.
Joint Resolutions Placed on Calendar
J.R.S. 117.
Joint Senate resolution of the following title was offered, read the first time and is as follows:
By Senator Campbell,
J.R.S. 117. Joint resolution congratulating the Hartford High School Hurricanes’ 2002 Division II championship boys ice hockey team.
Whereas, being ranked number seven in a divisional playoff competition does not portend the most favorable outcome for an aspiring state champion team, and
Whereas, the Hartford High School Hurricanes’ boys ice hockey team’s placement on this less-than-auspicious numerical plateau motivated the players to prove their true worth, and
Whereas, having already befuddled the pundits by their mere presence in the Division II championship game against the Northfield High School Marauders, the Hurricanes, from the second the opening whistle blew, skated with a resolve to emerge victorious, and
Whereas, teamwork was the theme all evening as Dan Ammel commenced the Hurricanes’ offensive drive less than five minutes into the first period with a pass to teammate Matt Gerety, who, in turn, relayed the puck to Nick Trottier for the honor of scoring the opening goal, and
Whereas, despite a Marauder goal early in the second period, the Hurricanes, through the quick reflexes of Matt Gerety, concluded the second period with a 2-1 lead, and
Whereas, the Marauders tied the contest nine minutes into the final period, creating a 2-all tie, and
Whereas, with a mere 1:29 left in regulation play, a low-angle shot off the stick of Dan Ammel directed the puck into the goal for a 3-2 Hurricane triumph and the 2002 Division II championship title, and
Whereas, the Hurricane’s outstanding goalie, Ryan Van Schoick, had an amazing 534 saves, and gave up just 41 goals, during the 23 game season, and
Whereas, Hurricane skaters Andre Dean, Tyson Dean, Shawn Spear, Matt Gerety, Richard Rosenbeck, Brian Martin, Nick Trottier, Brad DeFelice, Jeff Lallier, Anthony White, Alex Tenenbaum, Anthony Symancyk, Matt Kemon, Dan Ammel, Dan Campbell, Matt McCabe, Chad Finnemore, Mike Pierce and Ryan VanSchoick, along with valued team manager Jeff Holmes, each exhibited the skill and spirit necessary for a Hartford High School victory, and
Whereas, Coaches Todd Bebeau and Kevin Guilbault were the lynchpins igniting the team’s confidence and drive, now therefore be it
Resolved by the Senate and House of Representatives:
That the General Assembly congratulates the Hartford High School Hurricanes’ boys ice hockey team on winning the 2002 Division II championship title, and be it further
Resolved: That the Secretary of State be directed to send a copy of this resolution to Todd Bebeau at Hartford High School.
Thereupon, in the discretion of the President pro tempore, under Rule 51, the joint resolution was placed on the Calendar for action tomorrow.
J.R.S. 118.
Joint Senate resolution of the following title was offered, read the first time and is as follows:
By Senators Illuzzi, Doyle, Leddy and Mazza,
J.R.S. 118. Joint resolution in memory of former Senator E. Douglas McSweeney Jr. of Burlington.
Whereas, E. Douglas McSweeney Jr. of Burlington was the oldest of ten children, and graduated from the former Cathedral High School and the University of Vermont, and
Whereas, following honorable military service in the Korean War, in 1958, Douglas McSweeney earned his Doctor of Medicine degree from the University of Ottawa, and
Whereas, as an associate professor at the University of Vermont Medical School, Dr. McSweeney was a popular and respected faculty member, and continued to make house calls, even after his retirement, and
Whereas, he was a member of many professional societies, and was honored as a Fellow by the American College of Surgeons, served on the organization’s board of directors, and as chair of the Vermont State Medical Society, and
Whereas, he had a second life beyond the operating theater as a member of the Vermont Senate, to which he was elected from Chittenden County and did serve two terms, from 1979 to 1983, and
Whereas, aside from his legislative tenure, former Senator McSweeney had an impressive public career, serving on the Burlington Board of Aldermen, the Burlington Planning Commission, the Governor’s Commission on Higher Education and as a surgeon for the Burlington Fire Department, and
Whereas, his mark has been left on the City of Burlington as a key, early and strong supporter in the establishment of the Burlington Bike Path, and
Whereas, for 42 years, he and his wife, Marilyn, created and presided over a family that grew to include four children, Douglas III, Shelly, Shawn, and Molly, and eight grandchildren, all of whom are deeply saddened by the death of such a wonderful husband, father and grandfather, now therefore be it
Resolved by the Senate and House of Representatives:
That the members of the General Assembly mourn the passing of former Senator Douglas McSweeney of Burlington, and be it further
Resolved: That the Secretary of State be directed to send a copy of this resolution to Marilyn McSweeney in Burlington, and to each of his children.
Thereupon, in the discretion of the President pro tempore, under Rule 51, the joint resolution was placed on the Calendar for action tomorrow.
J.R.H. 225.
Joint resolution originating in the House of the following title was read the first time and is as follows:
Joint resolution honoring the U.S. Navy Seabees on their 60th anniversary and the U.S. Navy Civil Engineer Corps on their 135th anniversary.
Whereas, the United States Navy Civil Engineer Corps was established on March 2, 1867, as a professional resource for U.S. Navy projects requiring engineering expertise, and
Whereas, in late 1941, as the onslaught of an international war was growing readily apparent, Rear Admiral Ben Moreell, Chief of the U.S. Navy’s Bureau of Yards and Docks proposed the establishment of naval construction battalions, and
Whereas, on March 5, 1942, the U.S. Congress officially authorized the establishment of these new battalions, which became known as the Seabees, and
Whereas, the Seabees’ motto, "We Build, We Fight" and their colorful yellow bee mascot, have come to symbolize the battalions’ readiness to build military facilities promptly and efficiently, and
Whereas, in the major international conflicts in which the United States has been involved, including Korea, Vietnam, the Gulf War, the Balkans and Afghanistan, the Seabees have provided essential construction expertise for the development of basic infrastructure requirements, such as airstrips, bridges, roads and housing for military personnel, and
Whereas, the Seabees have proudly maintained another role outside the battle zone as "The Navy’s Goodwill Ambassadors", constructing orphanages, schools and health care facilities in underdeveloped countries, and providing much needed disaster relief assistance, both domestically and internationally, and
Whereas, while not from an ocean-bordering state, Vermonters have served with honor in this vital military construction organization, including the first and third officers commissioned as "Naval Civil Engineers," now therefore be it
Resolved by the Senate and House of Representatives:
That the General Assembly salutes the men and women of the U.S. Navy Seabees as they commemorate the battalions’ 60th anniversary and the U.S. Navy Civil Engineer Corps on their 135th anniversary, and be it further
Resolved: That the Secretary of State be directed to send a copy of this resolution to Admiral Vern Clark, Chief of Naval Operations, in Washington, D.C.
Thereupon, in the discretion of the President pro tempore, under Rule 51, the joint resolution was placed on the Calendar for action tomorrow.
Consideration Postponed
S. 224.
Senate bill entitled:
An act relating to reports of abuse, neglect and exploitation of elderly and disabled adults.
Was taken up.
Thereupon, without objection consideration of the bill was postponed until the next legislative day.
Bill Passed
Senate bill of the following title was read the third time and passed:
S. 266
An act relating to Vermont animal cruelty task force.
Bills Amended; Third Readings Ordered
S. 111
Senator Cummings, for the Committee on Judiciary, to which was referred Senate bill entitled:
An act relating to emergency care and treatment of an animal.
Reported recommending that the bill be amended by striking out all after the enacting law and inserting in lieu thereof the following:
Sec. 1. 12 V.S.A. § 525 is added to read:
§ 525. EMERGENCY CARE AND TREATMENT OF AN ANIMAL
(a) For purposes of this section, an "emergency" shall include a fire, flood, storm or other natural disaster, hazardous chemical or substance incident, or transportation accident where an animal is injured or in need of assistance to protect its health or life.
(b) A person who in good faith provides care and treatment to an animal during an emergency shall not be held liable for civil damages by the owner of the animal, unless his or her acts constitute gross negligence or unless he or she will receive or expects to receive remuneration.
(c) Nothing contained in this section shall alter existing law with respect to tort liability of a practitioner of veterinary medicine for acts committed in the ordinary course of his or her practice.
Sec. 2. 14 V.S.A. § 2330 is added to read:
§ 2330. TRUST FOR A PET ANIMAL
(a) A trust for the care of a designated domestic or pet animal is valid. The intended use of the principal or income may be enforced by an individual designated for that purpose in the trust instrument or, if none, by an individual appointed by the probate court upon application to it by an individual, or by a trustee. Such trust shall terminate when no living animal is covered by the trust or at the end of 21 years, whichever occurs earlier.
(b) Except as expressly provided otherwise in the trust instrument, no portion of the principal or income may be converted to the use of the trustee or to any use other than for the benefit of a covered animal.
(c) Upon termination, the trustee shall transfer the unexpended trust property as directed in the trust instrument or, if there are no such directions in the trust instrument, the property shall pass to the estate of the grantor.
(d) The probate court may reduce the amount of the property transferred if it determines that amount substantially exceeds the amount required for the intended use. The amount of the reduction, if any, passes as unexpended trust property pursuant to subsection (c) of this section.
(e) If no trustee is designated or no designated trustee is willing or able to serve, the probate court shall appoint a trustee, and may make such other orders and determinations as are advisable to carry out the interest of the transferor and the purpose of this section.
And that when so amended the bill ought to pass.
Thereupon, the bill was read the second time by title only pursuant to Rule 43, the recommendation of amendment was agreed to, and third reading of the bill was ordered.
S. 229.
Senator Campbell, for the Committee on Judiciary, to which was referred Senate bill entitled:
An act relating to installation of an object in lieu of an air bag.
Reported recommending that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:
Sec. 1. 13 V.S.A. § 2026 is added to read:
§ 2026. INSTALLATION OF OBJECT IN LIEU OF AIR BAG
(a) No person shall knowingly install or reinstall or knowingly cause to be installed or reinstalled:
(1) an object in lieu of a vehicle air bag that was designed in accordance with the federal safety regulation for the make, model and year of a vehicle; or
(2) an inoperable vehicle air bag, knowing that the airbag is inoperable.
(b) A person who violates subsection (a) of this section shall be imprisoned not more than three years or fined not more than $10,000.00, or both.
(c) A person who violates subsection (a) of this section, and serious bodily injury as defined in section 1021 of Title 13 or death results, shall be imprisoned not more than 20 years or fined not more than $25,000.00, or both.
And that when so amended the bill ought to pass.
Thereupon, the bill was read the second time by title only pursuant to Rule 43, the recommendation of amendment was agreed to, and third reading of the bill was ordered.
Consideration Postponed
S. 286.
Senate bill entitled:
An act relating to Vermont hospitals, the certificate of need program, and the hospital budget review process.
Was taken up.
Thereupon, without objection consideration of the bill was postponed until the next legislative day.
Joint Resolutions Adopted in Concurrence
Joint House resolutions entitled:
J.R.H. 222.
Joint resolution designating February 28, 2002, as Hunger Awareness Day.
J.R.H. 223.
Joint resolution recognizing March as American Red Cross month, and honoring the Vermont American Red Cross chapters and volunteers.
Having been placed on the Calendar for action, were taken up.
Thereupon, the resolutions were adopted collectively in concurrence.
Rules Suspended; Bill Amended; Third Reading Ordered
S. 73.
Appearing on the Calendar for notice, on motion of Senator Mazza, the rules were suspended and Senate bill entitled:
An act relating to permits for motor vehicle signal lamps.
Was taken up for immediate consideration.
Senator Crowley, for the Committee on Transportation, to which the bill was referred, reported recommending that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:
Sec. 1. 23 V.S.A. § 1251 is amended to read:
§ 1251. SIRENS AND COLORED SIGNAL LAMPS
No motor vehicle shall be operated upon a highway of this state equipped with a siren or signal lamp colored other than amber *[visible from the front of the motor vehicle]* unless a permit authorizing such equipment, issued by the commissioner of motor vehicles, is carried in the vehicle. The commissioner may *[promulgate such]* adopt additional *[regulations]* rules as may be required to govern the acquisition of permits and the use pertaining to sirens and colored signal lamps.
Sec. 2. 23 V.S.A. § 1252(a) is amended to read:
(a) When satisfied as to the condition and use of the vehicle, the commissioner shall issue and may revoke, for cause, permits for sirens or colored signal lamps in the following manner:
(1) Sirens *[and/or]* or blue or blue and white signal lamps, or a combination of these for all law enforcement vehicles, owned or leased by a law enforcement agency or a certified law enforcement officer and if the applicant is a constable, the application shall be accompanied by a certification by the town clerk that the applicant is the duly elected or appointed constable and attesting that the town has not voted to limit the constable’s authority to engage in enforcement activities under 24 V.S.A. § 1936a.
(2) Sirens and red or red and white signal lamps for all ambulances, fire apparatus, vehicles owned or leased by, or provided to volunteer firemen and voluntary rescue squad members, including a vehicle owned by a volunteer’s employer when the volunteer has the written authorization of the employer to use the vehicle for emergency fire or rescue activities and motor vehicles used solely in rescue operations.
(3) No vehicle may be authorized a permit for more than one of the *[above]* combinations described in subdivision (1) and (2) of this subsection.
(4) Notwithstanding subdivisions (1) and (2) of this subsection, no motor vehicle, other than one owned by the applicant, shall be issued a permit until such time as the commissioner can adequately record the information regarding both the owner of the vehicle and the applicant for the permit.
(5) Upon application to the commissioner, the commissioner may issue a single permit for all the vehicles owned or leased by the applicant.
Sec. 3. 23 V.S.A. § 1253 is amended to read:
§ 1253. INSPECTION OF PERMITS
Permits issued by the commissioner in accordance with the provisions *[hereof]* of sections 1251 and 1252 of this title shall be carried in some easily accessible place in the vehicles authorized to use *[said]* the equipment and shall be available for inspection at any or all times by any law enforcement officer, or during the inspection by the authorized personnel of an official inspection station designated as such by the department of motor vehicles, as provided by section 1222 of this title. No inspection sticker may be issued for a vehicle equipped with a siren or colored signal lamp, or both, *[except those exempted under section 1255 of this title,]* unless a current or valid permit for *[such]* the siren or colored signal lamp, or both, is produced for inspection. If a vehicle’s permit is issued pursuant to subdivision 1252(a)(5) of this title, a copy of the permit is acceptable.
And that when so amended the bill ought to pass.
Thereupon, the bill was read the second time by title only pursuant to Rule 43, the recommendation of amendment was agreed to, and third reading of the bill was ordered.
Rules Suspended; Bill Amended; Third Reading Ordered
S. 249.
Appearing on the Calendar for notice, on motion of Senator Mazza, the rules were suspended and Senate bill entitled:
An act relating to bail.
Was taken up for immediate consideration.
Senator Campbell, for the Committee on Judiciary, to which the bill was referred, reported recommending that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:
Sec. 1. 13 V.S.A. § 7551 is amended to read:
§ 7551. *[TO WHOM RECOGNIZANCE IS TAKEN]* APPEARANCE BONDS; GENERALLY
(a) A recognizance]* A bond given by a person charged with a criminal offense or by a witness in a criminal prosecution under section 6605 of this title, conditioned for the appearance of the person or witness before the court in *[causes]* cases where the offense is punishable by fine or imprisonment, and in appealed *[causes]* cases, shall be taken to the *[state, county, town or village to which the fine and costs are payable]* district or superior court where the prosecution is pending, and shall remain binding upon parties until discharged or until the prosecution is finally determined. The person or witness shall *[personally attend upon the court in which the prosecution is pending, from day to day and from term to term, and not depart without permission of the court, until the final determination of such prosecution]* appear in court at all court proceedings as required by the court, and abide by all conditions of release.
(b) A bond or recognizance required to be taken to the state, county, town or village, if taken to the treasurer thereof, shall be valid, and the same proceedings may be had thereon as if taken to the state, county, town or village.]*
Sec. 2. 13 V.S.A. § 7554 is amended to read:
§ 7554. RELEASE PRIOR TO TRIAL
* * *
(1) The person shall be ordered released on personal recognizance or upon the execution of an unsecured appearance bond in an amount specified by the judicial officer unless the judicial officer determines that such a release will not reasonably assure the appearance of the person as required. In determining whether the person presents a risk of nonappearance, the judicial officer shall consider, in addition to any other factors, the seriousness of the offense charged and the number of offenses with which the person is charged. If the officer determines that such a release will not reasonably assure the appearance of the person as required, the officer shall, either in lieu of or in addition to the above methods of release, impose the least restrictive of the following conditions or the least restrictive combination of the following conditions which will reasonably assure the appearance of the person as required:
* * *
(C) Require the execution of *[an]* a secured appearance bond in a specified amount and the deposit with the clerk of the court, in cash or other security as directed, of a sum not to exceed ten *[per centum]* percent of the amount of the bond such deposit to be returned upon the appearance of the person as required.
(D) Require the execution of *[an appearance]* a surety bond, in a form which shall be established by the court administrator, with sufficient solvent sureties, or the deposit of cash in lieu thereof.
* * *
Sec. 3. 13 V.S.A. § 7554a is amended to read:
§ 7554a. APPROVAL OF FIDELITY COMPANIES AND AGENTS; DUTY OF COURT ADMINISTRATOR
The court administrator, after consultation with the commissioner of banking, insurance, securities, and health care administration, may approve an entity that is licensed or authorized under the provisions of chapter 111 of Title 8, and any agent who is licensed under the provisions of chapter 131 of Title 8, to act as a surety, or on behalf of a surety, in this state to execute a bond in the form established by the court administrator under subdivision 7554(a)(1)(D) of this title, or post bail as required as a condition of release, and if so approved, the entity or agent shall not need to be approved by any court, judicial officer or any other person.
Sec. 4. 13 V.S.A. § 7557 is amended to read:
§ 7557. BAIL UPON POSTPONEMENT OF TRIAL
When a district or superior court postpones the trial of a criminal *[cause]* case or the examination of a person charged with a criminal offense *[which is bailable, the court may take security of the person by way of recognizance to the state, for his]*, the court may impose the least restrictive conditions or combination of conditions permitted under subdivision 7554(a)(1) of this title which will reasonably assure the person’s appearance before the court on the day to which the trial or examination is postponed.
Sec. 5. 13 V.S.A. § 7560 is amended to read:
§ 7560. FILING ORDER OF RELEASE
When a defendant is released as provided in section 7554 of this title, the*[ judicial]* officer in charge of a facility under the control of the department of corrections, county jail or local lockup shall promptly file a copy of the order of release and any accompanying recognizance, bond, or cash bail with the *[judge or]* clerk of the court before which the defendant is required to appear.
Sec. 6. 13 V.S.A. § 7560a is added to read:
§ 7560a. FAILURE TO APPEAR; FORFEITURE OF BOND; PROCEEDINGS
(a) If a person who has been released on a secured or unsecured appearance bond or a surety bond fails to appear in court as required:
(1) The court may:
(A) upon hearing and notice thereof to the bailor or surety, forfeit any bail posted on the person; and
(B) issue a warrant for the arrest of the person.
(2) The state’s attorney may file a motion to forfeit the amount of the bond against the surety in the superior or district court where the bond was executed. The motion shall include a copy of the bond and shall state with particularity the violation of the bond which renders the surety liable.
(b) The surety may reply to a motion to forfeit a bond. Replies must be filed within ten days of the filing of the motion.
(c) Upon notice to the parties, the court shall schedule a hearing on a motion to forfeit a bond. The court shall order the surety to produce the principal at the hearing.
(d) If the court finds that the surety has violated the terms of the bond by failing to produce the principal at the hearing or at any other court appearance at which the principal was required to appear, the court shall grant the motion to forfeit the bond. The court may, on motion, or on its own motion, adjust the amount of the forfeiture and order the forfeiture of all or part of the bond amount to the state.
(e) If a surety fails to comply with a forfeiture order issued under subsection (d) of this section, the attorney general may commence proceedings to enforce the order and collect the forfeited amount.
(f) No bond may be forfeited, in whole or in part, for violation of any condition of release other than a condition that the principal appear in court as required.
Sec. 7. 13 V.S.A. § 7562 is amended to read:
§ 7562. RELIEF OF BAIL—WARRANT TO ARREST AND COMMIT
If the *[bail]* surety for a person accused of a crime wishes to surrender the *[principal]* person in discharge of *[his recognizance he]* the surety’s obligations under the bond, the surety may apply in writing to the *[authority who took the recognizance]* court for a warrant to apprehend and detain the *[principal]* person *[and commit him to jail in the county where the offense is charged to have been committed]*. The *[authority shall]* court may thereupon issue such warrant, *[directed to any sheriff or constable in the state,]* and on *[commitment]* detention of the *[principal to jail upon such warrant]* person, the *[bail]* surety’s obligation under the bond shall be discharged.
Sec. 8. 13 V.S.A. § 7563 is amended to read:
§ 7563. —EXECUTION OF WARRANT; EXPENSES
(a) On receipt of *[such]* a warrant issued under section 7562 of this title with respect to a person charged with a criminal offense, and tender of *[his legal]* fees provided for by law, an officer shall apprehend and detain the *[principal and commit him to jail, according to the directions in his precept]* defendant, and leave with the *[jailer]* officer in charge of the facility a copy of the warrant, with his or her return thereon *[as in other cases]*. The expense of arrest and *[commitment]* transport of the defendant to the facility shall be paid by the person applying for the warrant.
(b) On receipt of a warrant issued under section 7562 of this title with respect to a witness in a criminal prosecution, and tender of fees provided for by law, an officer shall apprehend the witness and deliver him or her to the court for disposition.
Sec. 9. 13 V.S.A. § 7564 is amended to read:
§ 7564. —FEES
Fees for the arrest and *[commitment]* detention shall be the same as for the service of other process. If there is dispute about the amount of fees, *[the same shall be audited by the authority who took the recognizance]* it shall be submitted to the court which issued the warrant, and *[his]* its decision shall be final.
Sec. 10. 13 V.S.A. § 7570 is amended to read:
§ 7570. POWER OF COURT TO *[CHANCER]* RETURN FORFEITED SECURITY
In actions brought to recover the penalty or forfeiture annexed to a recognizance taken in a criminal cause, the court may reduce the penalty of such bond and render judgment thereon as the circumstances of the case require.]* A surety may file a motion requesting the return of forfeited bail, bond or any other security at any time after the order of forfeiture is entered. The court shall set the motion for hearing and provide notice thereof to the surety and the state’s attorney. If the court finds that the interests of justice would be served by returning all or part of the security, the court may grant the motion and return as much of the security as it deems equitable under the circumstances.
Sec. 11. 13 V.S.A. § 7573 is amended to read:
§ 7573. PEACE BONDS
A district court may order a person who is arrested for a criminal offense, to find sureties that he or she will keep the peace, when it is necessary, and may *[commit him to jail]* order the person detained until he or she complies.
Sec. 12. 13 V.S.A. § 7576 is added to read:
§ 7576. DEFINITIONS
As used in the chapter:
(1) "Appearance bond" means a written agreement which allows a person charged with a criminal offense to be released if the person pledges to pay the court a specified amount in the event that the person fails to appear at a court proceeding.
(2) "Bail" means any security, including cash, pledged to the court to:
(A) ensure that a person charged with a criminal offense will appear at future court proceedings; or
(B) protect the public.
(3) "Secured appearance bond" means a written agreement which allows a person charged with a criminal offense to be released if:
(A) the person pledges to pay the court a specified amount in the event that the person fails to appear at a court proceeding; and
(B) a portion of the bond is paid to the court prior to release.
(4) "Surety" means a person who agrees to be responsible for guaranteeing the appearance in court of a person charged with a criminal offense.
(5) "Surety bond" means a written agreement, in a form established by the court administrator, under which a surety guarantees the appearance in court of a person charged with a criminal offense, and pledges to pay the court a specified amount if the person fails to appear.
Sec. 13. REPEAL
The following sections in Title 13 are repealed: §§ 7552 (Prosecution by private prosecutor), 7565 (Proceedings in lower court on continuances), 7566 (Procedure when authority taking bail is out of office), 7567 (Proceedings to collect forfeited bail), 7568 (Scire facias upon forfeiture in supreme court), 7569 (Upon forfeiture in district court), 7571 (Motion to chancer forfeited bonds), and 7572 (Surrender of principal considered to chancering).
And that when so amended the bill ought to pass.
Thereupon, the bill was read the second time by title only pursuant to Rule 43, the recommendation of amendment was agreed to, and third reading of the bill was ordered.
Rules Suspended; Consideration Postponed
S. 258.
Appearing on the Calendar for notice, on motion of Senator Mazza, the rules were suspended and Senate bill entitled:
An act relating to the discovery and management of Native American remains.
Was taken up for immediate consideration.
Senator Costes and Senator Kittell, for the Committee on General Affairs and Housing, to which the bill was referred, reported recommending that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:
Sec. 1. 22 V.S.A. §§ 768 and 769 are added to read:
§ 768. DISCOVERY AND MANAGEMENT OF HUMAN REMAINS ON NONIMPROVED PARCELS
(a) As used in this section and in section 769 of this title, the following words shall have the following meanings:
(1) "Improved parcels" means parcels of land with structures or improvements (which shall include homes, septic systems, and wells) established on them on the effective date of this section.
(2) "Nonimproved parcels" means parcels of land with no structures or improvements on them on the effective date of this section.
(3) "Significant concentrations" means those areas having four or more sets of human remains per 1,000 square feet.
(b) The division shall identify, define, and provide maps of all general areas of known archaeological sensitivity, based on history, soil studies, and excavations made prior to the effective date of this section.
(c) Any owner of property located in an area designated under subsection (b) of this section may request that the division provide or arrange a state-funded archaeological survey of that property. This survey must be timely and make use of the best nonintrusive technology available to identify the most sensitive sites without further disturbance of human remains. The results of this survey will be provided to the property owner and recorded in the land records of the town in which the property is located.
(d) If this survey indicates the likely presence of a significant concentration of human remains, the state archaeologist shall proceed in a timely manner and in close consultation with the property owner to perform limited, site-specific investigations to confirm the earlier study results.
(e) The division shall take all steps necessary to assure that areas thus determined to host significant concentrations of human remains shall be preserved and protected through a negotiated purchase of the property by a consortium of state, local, and private interests. Areas thus affected may be less than an entire parcel. However, if the area affected is such that it prevents development of the entire parcel, the entire parcel should be purchased with funds coming from the historic sites special fund created under section 724 of this title, or from other sources.
(f) Any nonimproved parcel that has not been identified as hosting a significant concentration of human remains may be developed in accordance with state and local regulatory requirements and the "improved parcels" policy established in section 769 of this title. Landowners and developers of property located in an area designated under subsection (b) of this section, however, must be mindful of the sensitivity of this general area, and must be diligent in their observations during excavation.
§ 769. DISCOVERY AND MANAGEMENT OF HUMAN REMAINS ON PARCELS UNDERGOING IMPROVEMENT OR ALREADY IMPROVED
(a) Parcels undergoing improvement.
(1) Any owner of property located in an area designated under section 768 of this title who is applying for a state or local permit to develop that property in a manner that requires excavation deeper than 18 inches, must either:
(A) request a state-funded archaeological survey utilizing nonintrusive technology, and allow that survey to be completed within 90 days of request; or
(B) notify the division of excavation dates, and allow a state-funded monitor on the property to observe during excavations.
(2) If the survey conducted under section 768 of this title or under subdivision (1)(A) of this subsection shows no indication of a significant concentration of human remains, excavation may proceed with due caution.
(3) If any excavation indicates the presence of human remains, whether or not the property is located in an area designated under section 768 of this title, further excavation will not continue until the following procedures have been carried out:
(A) The property owner shall contact the Vermont state police for their determination of whether or not the human remains are part of a criminal incident. During this time of investigation, it shall be the landowner’s responsibility to cover the remains in such a manner that they are protected from the elements until permanently reinterred.
(B) If the state police determine that no crime is involved, they shall contact the zoning administrator, or any other official designated by the municipality to receive notice under this section, or if there is no zoning administrator and no other official has been designated, the municipal clerk. In this instance, the state police also shall contact the division, which shall procure an anthropologist familiar with the state who, within six days, shall determine, on-site, the cultural origin of the remains. The anthropologist will notify the zoning administrator, designated official, or municipal clerk, of his or her findings, within 24 hours of arriving at a determination.
(C) If the anthropologist determines that the remains are not Native American, the remains will be properly handled according to state law.
(D) If the anthropologist determines that the remains are Native American, the following shall take place:
(i) The zoning administrator, designated municipal official, or municipal clerk shall notify the property owner and the governor’s advisory commission on Native American affairs.
(ii) Representatives of the governor’s advisory commission on Native American affairs shall be allowed to come on the site as soon as possible, during daylight hours, to stabilize the remains. The on-site stabilization activity shall not exceed four hours.
(iii) An on-site meeting involving the property owner, representatives of the governor’s advisory commission on Native American affairs and the zoning administrator, municipal designee, or municipal clerk shall be held within five days after notification by the zoning administrator, municipal designee, or municipal clerk under subdivision (3)(D)(i) of this subsection.
(iv) The property owner, after consultation with the representatives of the governor’s advisory commission on Native American affairs shall:
(I) Leave the remains intact and move the location of the project to avoid the remains, or continue the project in a manner that will not further disturb the remains; or
(II) Leave the remains intact and discontinue the project; or
(III) Allow the remains to be removed from the property by representatives of the governor’s advisory commission on Native American affairs. The timeline for removal will be agreed upon during the on-site meeting, with removal to be completed within seven days of the on-site meeting held under subdivision (3)(D)(iii) of this subsection.
(v) Provided the governor’s advisory commission on Native American affairs demonstrates no interest in the remains within 45 days of being notified by the zoning administrator, designated municipal official, or municipal clerk, the remains will be removed from the property according to state law.
(b) Improved parcels.
(1) The division may negotiate to provide that improved parcels determined to host significant concentrations of human remains will be preserved and protected through a negotiated purchase of the property or the development rights by a consortium of state, local, and private interests. Areas thus affected may be less than an entire parcel.
(2) Improved parcels determined by survey and excavation to have no evidence of a significant concentration of human remains may be further developed in accordance with state and local regulatory requirements. Landowners and developers of property located in an area designated under subsection 768(a) of this title, however, must be mindful of the sensitivity of this general area, and be diligent in their observations during excavation.
(c) Mediation required. Disputes arising from the implementation of the policy established in section 768 of this title and in this section will be submitted to mediation as the first step in trying to resolve the dispute. The zoning administrator or a designated municipal official will maintain a list of mediators that have been deemed acceptable to both parties to such a dispute.
Sec. 2. COMMERCE AND COMMUNITY AFFAIRS; UNMARKED BURIALS FUND
(a) The agency of commerce and community affairs is authorized to establish an unmarked burials fund for the purpose of assisting municipalities to assure that human remains discovered in unmarked burials on private lands are treated appropriately and respectfully. This fund is to be managed pursuant to chapter 7, subchapter 5 of Title 32. The fund shall be comprised of any monies from time to time appropriated to the fund by the general assembly or received from any other source, private or public. All balances at the end of any fiscal year shall be carried forward and remain in the fund.
(b) Disbursement shall be by the department of housing and community affairs to municipalities, as defined at 24 V.S.A. §4303(4), that have adopted a process designed to treat human remains contained in unmarked burials with respect while also respecting private interests in real property. Such process shall provide for collaboration to determine the proper treatment of human remains among town officials, holders of interests in affected property, and members of the public asserting an interest in human remains contained in an unmarked burial either by reason of membership in the family or cultural community from which the human remains are likely to have derived, or due to the historic or cultural significance of the human remains. Municipalities that have not adopted such a process, but in which unmarked burials have been accidentally discovered, shall also be eligible for funds, provided the funds are used in a manner consistent with a model process recommended by the department and consistent with the provisions hereof.
(c) The municipality shall use the funds for monitoring the excavation, archeological assessment, archeological site investigations or field investigations, anthropological assessment, mediation, and acquisition of property rights. Funds shall be disbursed for acquisition only upon determination by the commissioner of commerce and community affairs that such disbursement will not unduly burden the fund.
And that when so amended the bill ought to pass.
Thereupon, the bill was read the second time by title only pursuant to Rule 43, and pending the question, Shall the recommendation of amendment of the Committee on General Affairs and Housing be agreed to?, upon request of Senator Costes, without objection further consideration was postponed until tomorrow.
Adjournment
On motion of Senator Mazza, the Senate adjourned until one o’clock and thirty minutes in the afternoon on Wednesday, March 13, 2002.