Senate Calendar

tuesday, april 25, 2006

113th DAY OF ADJOURNED SESSION

TABLE OF CONTENTS

                                                                                                                Page No.

NEW BUSINESS

Third Reading

H. 211    Regulating emissions from diesel-powered commercial vehicles........ 1797

Second Reading

Favorable

H. 791    Allocating funds from solid waste management assistance fund......... 1797

                  Appropriations Committee Report............................................... 1797

H. 887    Participation in the state employees’ defined contribution fund.......... 1797

                  Government Operations Committee Report.................................. 1797

Favorable with Proposal of Amendment

H. 294    Relating to groundwater management.............................................. 1797

                  Natural Resources and Energy Committee Report........................ 1797

                  Appropriations Committee Report............................................... 1802

H. 373    Relating to stalking.......................................................................... 1802

                  Judiciary Committee Report......................................................... 1802

                  Appropriations Committee Report............................................... 1814

H. 817    Relating to stormwater management................................................ 1814

                  Natural Resources and Energy Committee Report........................ 1814

                  Appropriations Committee Report............................................... 1816

House Proposal of Amendment

S. 314     Relating to early childhood education............................................... 1816

NOTICE CALENDAR

Favorable

H. 883    Amending the charter of the city of Burlington.................................. 1818

                  Government Operations Committee Report.................................. 1818

Favorable with Proposal of Amendment

H. 306    Transportation of individuals in the custody of the state ................... 1819

                  Health and Welfare Committee Report......................................... 1819

 

H. 568    Applicability of an act regarding trustees.......................................... 1820

                  Finance Committee Report.......................................................... 1820

H. 618    Services for transitional youth.......................................................... 1822

                  Health and Welfare Committee Report......................................... 1822

H. 702    Executive branch fees..................................................................... 1823

                  Finance Committee Report.......................................................... 1823

H. 867    Relating to miscellaneous changes to education law.......................... 1824

                  Education Committee Report....................................................... 1824

H. 881    An act making appropriations for the support of government

               (See Addendum for Tuesday, April 25, 2006)

House Proposal of Amendment

S. 50       Relating to riots............................................................................... 1826

S. 194     Relating to sealing juvenile records relating to a delinquent act.......... 1828

S. 198     Relating to a “Sorry Works” program.............................................. 1839

S. 256     Relating to sexual exploitation of an inmate...................................... 1841

House Proposal of Amendment to Senate Proposal of Amendment

H. 677    Board and licensing hearing panels for professional educators.......... 1846

ORDERED TO LIE

S. 112     Relating to the practice of optometry............................................... 1847

S. 157     Relating to rulemaking for Vermont origin........................................ 1847

S. 315     Relating to creation of the Vermont Land Bank program.................. 1847

S. 316     Relating to access to broadband services throughout Vermont......... 1847

S. 319     Relating to expanding the scope of the net metering program............ 1847

H. 480    Relating to precursor drugs of methamphetamine............................. 1847



 

ORDERS OF THE DAY

ACTION CALENDAR

NEW BUSINESS

Third Reading

H. 211

An act relating to regulating emissions from diesel-powered commercial motor vehicles.

Favorable

H. 791

An act relating to allocation of funds from the solid waste management assistance account of the waste management assistance fund to the environmental contingency fund.

Reported favorably by Senator Illuzzi for the Committee on Appropriations, upon commitment.

(Committee vote: 7-0-0)

(For House amendments, see House Journal for March 31, 2006, page 804)

H. 887

An act relating to group D participation in the state employees’ defined contribution plan.

Reported favorably by Senator Kitchel for the Committee on Government Operations.

(Committee vote: 6-0-0)

(No House amendments.)

Favorable with Proposal of Amendment

H. 294

An act relating to groundwater management.

Reported favorably with recommendation of proposal of amendment by Senator Snelling for the Committee on Natural Resources and Energy.

The Committee recommends that the Senate propose to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  10 V.S.A. chapter 48, subchapter 5 is added to read:

Subchapter 5.  Interim Groundwater Withdrawal Permit

§ 1415.  INTERIM GROUNDWATER WITHDRAWAL PERMIT

(a)  As used in this section:

(1)  “Groundwater” means water below the land surface.

(2)  "Person" means any individual, partnership, company, corporation, cooperative, association, unincorporated association, joint venture, trust, the state of Vermont or any department, agency, subdivision, or municipality, the United States government or any department, agency, or subdivision, or any other legal or commercial entity.

(3)  “Withdraw” means the removal of groundwater by any method or instrument.

(b)  No person shall withdraw more than 50,000 gallons of groundwater a day from a well drilled after July 1, 2006, for commercial or industrial purposes without first receiving from the secretary of natural resources an interim groundwater withdrawal permit under this section.  Prior to issuance of a permit under this section:

(1)  The secretary shall determine that such withdrawal meets the applicable requirements of section 1675 of this title and any applicable rules adopted thereunder or the requirements adopted pursuant to subsection (e) of this section; and

(2)  the applicant shall submit to the Vermont state geologist and the department of environmental conservation a geologic cross section and groundwater contour map of an area, the size of which shall be in conformance with appendix A, part 3, subsection 3.3.5.2 of the Vermont water supply rule, surrounding the proposed source of the groundwater withdrawal..

(c)  Groundwater withdrawal by a public water system, as that term is defined in section 1671 of this title, or for use for fire safety, agriculture, agricultural or dairy processing, dewatering operations during building construction, geothermal energy production, or public sanitation shall be exempt from the requirements of this section.

(d)  A permit issued under this section shall be valid for the period of time specified in the permit but not more than five years.

(e)  The secretary of natural resources may adopt rules to implement the provisions of this section and to establish criteria for the issuance of a permit under section 1675 of this title for commercial or industrial groundwater withdrawals from a well drilled after July 1, 2006.

Sec. 2.  10 V.S.A. § 1675(g) is added to read:

(g)(1)  Effective July 1, 2006, a public water system applying for a permit under this section for the bottling of more than 50,000 gallons of drinking water a day from a single source for public distribution and sale shall, in addition to complying with the requirements of this chapter and any rules adopted thereunder, submit to the Vermont state geologist and the department of environmental conservation a geologic cross section and groundwater contour map of an area, the size of which shall be in conformance with appendix A, part 3, subsection 3.3.5.2 of the Vermont water supply rule, surrounding the proposed source.

(2)  The requirements of subdivision (1) of this subsection shall apply to a public water system permitted under this section when the system proposes to expand the bottling of drinking water from a single source such that the total gallons of water bottled from the single source would exceed 50,000 gallons a day.

Sec. 3.  STUDY OF GROUNDWATER REGULATION AND FUNDING

(a)  A committee is established to examine potential regulatory programs to protect the groundwater resources of the state.  The committee shall issue a preliminary report of its findings to the house committee on fish, wildlife and water resources, the senate committee on natural resources and energy, and the house and senate committees on agriculture by January 15, 2007.  The committee shall issue a final report of its findings to the house committee on fish, wildlife and water resources, the senate committee on natural resources and energy, and the house and senate committees on agriculture by January 15, 2008.  The final report shall include:

(1)  A recommendation from the committee as to whether the groundwater resources of the state of Vermont should be declared a public trust resource.

(2)  An analysis of the regulatory implications of declaring the groundwater of the state to be a public trust resource if the committee so recommends under subdivision (1) of this subsection.

(3)  A proposed schedule for the groundwater mapping of the state by the agency of natural resources.

(4)  A proposed appropriation to the agency of natural resources for the groundwater mapping of the state, including any proposed new or existing revenue sources that may be used by the agency to aid in funding the groundwater mapping.

(5)  Proposed legislation for the regulation of groundwater withdrawal in the state, addressing:

(A)  The type of groundwater withdrawals subject to regulation;

(B)  A threshold amount or amounts of groundwater withdrawal subject to regulation;

(C)  Groundwater users exempt from regulation;

(D)  The regulation of interbasin groundwater transfers;

(E)  The fee to be charged for regulated groundwater withdrawal;

(F)  Monitoring, reporting, or recordkeeping requirements for regulated groundwater withdrawal; and

(G)  Any other issues deemed relevant by the committee.

(b)  The committee shall consist of the following members:

(1)  the secretary of natural resources or his or her designee;

(2)  the state geologist or his or her designee;

(3)  the secretary of agriculture, food and markets or his or her designee;

(4)  one member each from the house committees on agriculture and on fish, wildlife and water resources and the senate committees on agriculture and on natural resources and energy as appointed respectively by the speaker of the house and the committee on committees;

(5)  a representative appointed by the governor from each of the following:  the business community, municipalities, a local environmental organization, a regional or statewide environmental organization, and the general public;

(6)  two representatives of the agricultural community appointed by the governor.

(c)  The committee may elect a chair and a vice chair and may hold public hearings.  Legislative council shall provide support for the committee.

(d)  All members of the committee shall serve on the committee for the duration of the study unless circumstances dictate a permanent replacement.  Vacancies shall be appointed in the same manner as original appointments.

Sec. 4.  GROUNDWATER MAPPING

The agency of natural resources shall explore all available alternatives for the immediate initiation of groundwater mapping in the state, including working in cooperation with the U.S. Geologic Survey and obtaining the necessary funding from the U.S. Environmental Protection Agency.  The agency shall report its findings to the house committee on fish, wildlife and water resources, the senate committee on natural resources and energy, and the house and senate committees on agriculture by January 15, 2007.

Sec. 5.  AGENCY OF NATURAL RESOURCES GROUNDWATER REPORT

On or before January 15, 2008, the agency of natural resources shall submit a report to the senate committee on natural resources and energy and the house committee on fish, wildlife and water resources regarding the status of the agency’s efforts to collect and analyze information regarding the groundwater resources of the state.  The report shall include:

(1)  An analysis by the agency of natural resources of whether the withdrawal of groundwater or bottling of drinking water in certain geographic areas of the state has impacted the use or quality of groundwater or surface water for domestic drinking water or other purposes;

(2)  A listing of any areas identified under subdivision (1) of this section, a summary of how the agency of natural resources responded to groundwater or surface water shortages in those areas, and agency recommendations on how to avoid similar impact areas in the future;

(3)  A compilation of groundwater supply information included in the well completion or closure reports submitted to the agency of natural resources in the last 15 years by licensed well drillers;

(4)  The amount of drinking water approved for bottling per day from each source in the state permitted under 10 V.S.A. § 1675 for use by a bottled water facility;

(5)  Any groundwater mapping completed by the agency; and

(6)  Any other information deemed relevant by the agency.

Sec. 6.  10 V.S.A. § 8003(a)(6) is amended to read:

(6)  10 V.S.A. chapter 48, relating to well drillers and groundwater withdrawal;

Sec. 7.  SUNSET

10 V.S.A. chapter 48, subchapter 5 (interim groundwater withdrawal permit) is repealed July 1, 2011.

(Committee Vote: 6-0-0)

Reported favorably with recommendation of proposal of amendment by Senator Snelling for the Committee on Appropriations.

The Committee recommends that the Senate propose to the House to amend the bill in Sec. 3 by inserting a new subsection (e) to read as follows:

(e) legislative members are entitled to per diem payment and reimbursement for expenses pursuant to 2 V.S.A. § 406.

(Committee Vote: 7-0-0)

(For House amendments, see House Journal for February 10, 2006, page 308; February 14, 2006, page 318.)

H. 373

An act relating to stalking.

Reported favorably with recommendation of proposal of amendment by Senator Campbell for the Committee on Judiciary.

The Committee recommends that the Senate propose to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  12 V.S.A. chapter 178 is added to read:

Chapter 178.  Orders Against Stalking

or Sexual Assault

§ 5131.  DEFINITIONS

As used in this subchapter:

(1)  “Course of conduct” means a pattern of conduct composed of two or more acts over a period of time, however short, evidencing a continuity of purpose.  Constitutionally protected activity is not included within the meaning of “course of conduct.”

(2)  “Following” means maintaining over a period of time a visual or physical proximity to another person in such manner as would cause a reasonable person to have fear of unlawful sexual conduct, unlawful restraint, bodily injury, or death.

(3)  “Lying in wait” means hiding or being concealed for the purpose of attacking or harming another person.

(4)  “Nonphysical contact” includes telephone calls, mail, e‑mail or other electronic communication, fax, and written notes. 

(5)  “Sexually assaulted the plaintiff” means that the defendant engaged in conduct that meets elements of lewd and lascivious conduct with a child as defined in 13 V.S.A. § 2602, sexual assault as defined in 13 V.S.A. § 3252, or aggravated sexual assault as defined in 13 V.S.A. § 3253, and that the plaintiff was the victim of the offense.

(6)  “Stalk” means to engage in a course of conduct which consists of following or lying in wait for a person, or threatening behavior directed at a specific person or a member of the person’s family, and:

(A)  serves no legitimate purpose; and

(B)  would cause a reasonable person to fear for his or her safety or would cause a reasonable person substantial emotional distress.

(7)  “Stay away” means to refrain from knowingly:

(A)  initiating or maintaining a physical presence near the plaintiff;

(B)  engaging in nonphysical contact with the plaintiff directly or indirectly;

(C)  engaging in nonphysical contact with the plaintiff through third parties who may or may not know of the order.

(8)  “Threatening behavior” means acts which would cause a reasonable person to fear unlawful sexual conduct, unlawful restraint, bodily injury, or death, including verbal threats, written, telephonic, or other electronically communicated threats, vandalism, or physical contact without consent.

§ 5132.  JURISDICTION AND VENUE

(a)  The superior court shall have jurisdiction over proceedings under this chapter.

(b)  Proceedings under this chapter may be commenced in the county in which the plaintiff resides.  If the plaintiff has left his or her residence to avoid being stalked or sexually assaulted, the plaintiff shall have the option to bring an action in the county of the previous residence or the county of the new residence.

§ 5133.  REQUESTS FOR AN ORDER AGAINST STALKING OR SEXUAL ASSAULT

(a)  A person, other than a family or household member as defined in 15 V.S.A. § 1101(2), may seek an order against stalking or sexual assault on behalf of him or herself or his or her children by filing a complaint under this chapter.  The plaintiff shall submit an affidavit in support of the order.

(b)  Except as provided in section 5134 of this title, the court shall grant the order only after notice to the defendant and a hearing.  The plaintiff shall have the burden of proving by a preponderance of the evidence that the defendant stalked or sexually assaulted the plaintiff.

(c)  In a hearing under this chapter, neither opinion evidence of nor evidence of the reputation of the plaintiff’s sexual conduct shall be admitted.  Evidence of prior sexual conduct of the plaintiff shall not be admitted; provided, however, where it bears on the credibility of the plaintiff or it is material to a fact at issue and its probative value outweighs its private character, the court may admit:

(1)  Evidence of the plaintiff’s past sexual conduct with the defendant.

(2)  Evidence of specific instances of the plaintiff’s sexual conduct showing the source of origin of semen, pregnancy, or disease.

(3)  Evidence of specific instances of the plaintiff’s past false allegations of violations of chapter 59 or 72 of Title 13.

(d)  If the court finds that the defendant has stalked or sexually assaulted the plaintiff, the court shall order the defendant to stay away from the plaintiff or the plaintiff’s children, or both, and may make any other such order it deems necessary to protect the plaintiff or the plaintiff’s children, or both.

(e)  Relief shall be granted for a fixed period, at the expiration of which time the court may extend any order, upon motion of the plaintiff, for such additional time as it deems necessary to protect the plaintiff or the plaintiff’s children, or both.  It is not necessary for the court to find that the defendant stalked or sexually assault the plaintiff during the pendency of the order to extend the terms of the order.  The court may modify its order at any subsequent time upon motion by either party and a showing of a substantial change in circumstance.

(f)  No filing fee shall be required.

(g)  Every order under this chapter shall contain the name of the court, the names of the parties, the date of the petition, and the date and time of the order and shall be signed by the judge.

(h)  Form complaints and form orders for an “Order Against Stalking or Sexual Assault” shall be provided by the court administrator and shall be maintained by the clerks of the courts.

(i)  When findings are required under this section, the court shall make either written findings of fact or oral findings of fact on the record.

(j)  Every final order issued under this section shall bear the following language:  “VIOLATION OF THIS ORDER IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AND MAY ALSO BE PROSECUTED AS CRIMINAL CONTEMPT PUNISHABLE BY FINE OR IMPRISONMENT, OR BOTH.”

(k)  Affidavit forms required pursuant to this section shall bear the following language: “MAKING FALSE STATEMENTS IN THIS AFFIDAVIT IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AS PROVIDED BY 13 V.S.A. § 2904.”

§ 5134.  EMERGENCY RELIEF

(a)  In accordance with the Vermont Rules of Civil Procedure, a person other than a family or household member as defined in 15 V.S.A. § 1001(2) may file a complaint for a temporary order against stalking or sexual assault.  Such complaint shall be filed during regular court hours.  The plaintiff shall submit an affidavit in support of the order.  The court may issue a temporary order under this chapter ex parte, without notice to the defendant, upon motion and findings by the court that the defendant has stalked or sexually assaulted the plaintiff.  An order may be granted requiring the defendant to refrain from stalking or sexually assaulting the plaintiff and to refrain from interfering with the plaintiff’s personal liberty.

(b)  Every order issued under this section shall contain the name of the court, the names of the parties, the date of the petition, and the date and time of the order and shall be signed by the judge.  Every order issued under this section shall state upon its face a date, time, and place that the defendant may appear to petition the court for modification or discharge of the order.  This opportunity to contest shall be scheduled as soon as reasonably possible, which in no event shall be more than 10 days from the date of issuance of the order.  At such hearings, the plaintiff shall have the burden of proving by a preponderance of the evidence that the defendant stalked or sexually assaulted the plaintiff.  If the court finds that the plaintiff has met his or her burden, it shall continue the order in effect and make such other orders as it deems necessary to protect the plaintiff or the plaintiff’s children, or both.

(c)  Form complaints and form orders shall be provided by the court administrator and shall be maintained by the clerks of the courts.

(d)  Every order issued under this chapter shall bear the following language:  “VIOLATION OF THIS ORDER IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AND MAY ALSO BE PROSECUTED AS CRIMINAL CONTEMPT PUNISHABLE BY FINE OR IMPRISONMENT, OR BOTH.”

(e)  Affidavit forms required pursuant to this section shall bear the following language: “MAKING FALSE STATEMENTS IN THIS AFFIDAVIT IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AS PROVIDED BY 13 V.S.A. § 2904.”

§ 5135.  SERVICE

(a)  A complaint or ex parte temporary order or final order issued under this chapter shall be served in accordance with the Vermont Rules of Civil Procedure and may be served by any law enforcement officer.  Orders against stalking or sexual assault shall be served at the earliest possible time and shall take precedence over other summonses and orders, with the exception of abuse prevention orders issued pursuant to chapter 21 of Title 15.  Orders shall be served in a manner calculated to ensure the safety of the plaintiff.  Methods of service which include advance notification to the defendant shall not be used.  The person making service shall file a return of service with the court stating the date, time, and place that the order was delivered personally to the defendant.

(b)  If service of a notice of hearing issued under section 5133 or 5134 of this title cannot be made before the scheduled hearing, the court shall continue the hearing and extend the terms of the order upon request of the plaintiff for such additional time as it deems necessary to achieve service on the defendant.

§ 5136.  PROCEDURE

(a)  Except as otherwise specified in this chapter, proceedings commenced under this chapter shall be in accordance with the Vermont Rules of Civil Procedure and shall be in addition to any other available civil or criminal remedies.

(b)  The court administrator is authorized to contract with public or private agencies to assist plaintiffs to seek relief and to gain access to superior court.  Law enforcement agencies shall assist in carrying out the intent of this section.

(c)  The office of the court administrator shall ensure that the superior court and the district court have procedures in place so that the contents of orders and pendency of other proceedings can be known to both courts for cases in which an order against stalking or sexual assault proceeding is related to a criminal proceeding.

§ 5137.  FILING ORDERS WITH LAW ENFORCEMENT PERSONNEL; DEPARTMENT OF PUBLIC SAFETY PROTECTION ORDER DATABASE

(a)  Police departments, sheriff’s departments, and state police district offices shall establish procedures for filing notice against stalking or sexual assault orders issued under this chapter and for making their personnel aware of the existence and contents of such orders.

(b)  Any court in this state that issues a notice against stalking or sexual assault order under this chapter shall transmit a copy of the order to the department of public safety’s protection order database.

§ 5138.  ENFORCEMENT

(a)  Law enforcement officers are authorized to enforce orders issued under this chapter.  A foreign abuse prevention order as defined in 15 V.S.A. § 1101 shall be accorded full faith and credit throughout this state and shall be enforced as if it were an order of this state.  Law enforcement officers may rely upon a copy of any order issued under this chapter or any foreign abuse prevention order.  Enforcement may include, but is not limited to, making an arrest in accordance with the provisions of Rule 3 of the Vermont Rules of Criminal Procedure.

(b)  In addition to the provisions of subsection (a) of this section, violation of an order issued under this chapter may be prosecuted as a criminal contempt under Rule 42 of Vermont Rules of Criminal Procedure.  The prosecution for criminal contempt may be initiated by the state’s attorney in district or superior court in the unit or county in which the violation occurred.  The maximum penalty which may be imposed under this subsection shall be a fine of $1,000.00 or imprisonment for six months, or both.  A sentence of imprisonment upon conviction for criminal contempt may be stayed in the discretion of the court, pending the expiration of the time allowed for filing notice of appeal or pending appeal if any appeal is taken.  After two years have passed from conviction under this subsection, the court may on motion of the defendant expunge the record of the criminal proceeding and conviction unless the defendant has been convicted of a felony or misdemeanor involving moral turpitude or a violation of a protection order after such initial adjudication.

Sec. 2.  13 V.S.A. § 1030 is amended to read:

§ 1030.  VIOLATION OF ABUSE PREVENTION ORDER OR AN ORDER AGAINST STALKING OR SEXUAL ASSAULT

(a)  A person who commits an act prohibited by a court or who fails to perform an act ordered by a court in violation of an abuse prevention order issued under chapter 21 of Title 15 or chapter 69 of Title 33, or an order against stalking or sexual assault issued under chapter 178 of Title 12, after the person has been served notice of the contents of the order as provided in those chapters; or a foreign abuse prevention order issued by a court in any other state, federally recognized Indian tribe, territory or possession of the United States, the Commonwealth of Puerto Rico, or the District of Columbia; shall be imprisoned not more than one year or fined not more than $5,000.00, or both.

(b)  A person who is convicted of a second or subsequent offense under this section shall be imprisoned not more than three years or fined not more than $25,000.00, or both.

(c)  Upon conviction under this section for a violation of an order issued under chapter 21 of Title 15, the court shall, unless the circumstances indicate that it is not appropriate or not available, order the defendant to participate in domestic abuse counseling or a domestic abuse program approved by the department of corrections.  The defendant may at any time request the court to approve an alternative program.  The defendant shall pay all or part of the costs of the counseling or program unless the court finds that the defendant is unable to do so.

(d)  Upon conviction for a violation of an order issued under chapter 178 of Title 12, the court may order the defendant to participate in mental health counseling or sex offender treatment approved by the department of corrections.  The defendant shall pay all or part of the costs of the counseling unless the court finds that the defendant is unable to do so.

(d)(e)  Nothing in this section shall be construed to diminish the inherent authority of the courts to enforce their lawful orders through contempt proceedings.

(e)(f)  Prosecution for violation of an abuse prevention order or an order against stalking or sexual assault shall not bar prosecution for any other crime, including any crime that may have been committed at the time of the violation of the abuse prevention order.

Sec. 3.  15 V.S.A. § 1101 is amended to read:

§ 1101.  DEFINITIONS

The following words as used in this chapter shall have the following meanings:

* * *

(1)  “Abuse” means the occurrence of one or more of the following acts between family or household members:

(A)  attempting Attempting to cause or causing physical harm;.

(B)  placing Placing another in fear of imminent serious physical harm;.

(C)  abuse Abuse to children as defined in subchapter 2 of chapter 49 of Title 33.

(D)  Stalking as defined in 13 V.S.A. § 106.

(E)  Sexual assault as defined in 13 V.S.A. § 3252.

* * *

(3)  A “foreign abuse prevention order” means any protection order issued by the court of any other state that contains provisions similar to relief provisions authorized under this chapter, the Vermont Family Court Rules or, chapter 69 of Title 33, or chapter 178 of Title 12.

* * *

Sec. 4.  15 V.S.A. § 1103 is amended to read:

§ 1103.  REQUESTS FOR RELIEF

(a)  Any family or household member may seek relief from abuse by another family or household member on behalf of him or herself or his or her children by filing a complaint under this chapter.  The plaintiff shall submit an affidavit in support of the order.

* * *

(c)  If the court finds that the defendant has abused the plaintiff and that there is a danger of further abuse, the court shall make such orders as it deems necessary to protect the plaintiff, the children, or both, which may include the following:

* * *

(6)  if the court finds that the defendant has a duty to support the child or children, a temporary order of child support pursuant to chapter 5 of this title, for a period not to exceed three months.  A support order granted under this section may be extended if the relief from abuse proceeding is consolidated with an action for legal separation, divorce, or parentage;

(7)  an order concerning the care, custody, or control of any animal owned, possessed, leased, kept, or held as a pet by either party or a minor child residing in the household. 

(d)  In a hearing under this chapter, neither opinion evidence of nor evidence of the reputation of the plaintiff’s sexual conduct shall be admitted.  Evidence of prior sexual conduct of the plaintiff shall not be admitted; provided, however, where it bears on the credibility of the plaintiff or it is material to a fact at issue and its probative value outweighs its private character, the court may admit:

(1)  Evidence of the plaintiff’s past sexual conduct with the defendant.

(2)  Evidence of specific instances of the plaintiff’s sexual conduct showing the source of origin of semen, pregnancy, or disease.

(3)  Evidence of specific instances of the plaintiff’s past false allegations of violations of chapter 59 or 72 of Title 13.

(e)  Relief shall be granted for a fixed period, at the expiration of which time the court may extend any order, upon motion of the plaintiff, for such additional time as it deems necessary to protect the plaintiff, the children, or both, from abuse.  It is not necessary for the court to find that abuse has occurred during the pendency of the order to extend the terms of the order.  The court may modify its order at any subsequent time upon motion by either party and a showing of a substantial change in circumstance.

(e)(f)  No filing fee shall be required.

(f)(g)  Every order under this chapter shall contain the name of the court, the names of the parties, the date of the petition, the date and time of the order, and shall be signed by the judge.

(g)(h)  Form complaints and form orders shall be provided by the court administrator and shall be maintained by the clerks of the courts.

(h)(i)  When findings are required under this section, the court shall make either written findings of fact or oral findings of fact on the record.

(i)(j)  Every final order issued under this section shall bear the following language:  “VIOLATION OF THIS ORDER IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AND MAY ALSO BE PROSECUTED AS CRIMINAL CONTEMPT PUNISHABLE BY FINE OR IMPRISONMENT, OR BOTH.”

(k)  Affidavit forms required pursuant to this section shall bear the following language:  “MAKING FALSE STATEMENTS IN THIS AFFIDAVIT IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AS PROVIDED BY 13 V.S.A. § 2904.”

Sec. 5.  15 V.S.A. § 1104 is amended to read:

§ 1104.  Emergency relief

(a)  In accordance with the rules of civil procedure, temporary orders under this chapter may be issued ex parte, without notice to defendant, upon motion and findings by the court that defendant has abused plaintiff, his or her children, or both.  The plaintiff shall submit an affidavit in support of the order. Relief under this section shall be limited as follows:

(1)  upon a finding that there is an immediate danger of further abuse, an order may be granted requiring the defendant:

(A)  to refrain from abusing the plaintiff, his or her children, or, both, or from cruelly treating as defined in 13 V.S.A. § 352 or 352a any animal owned, possessed, leased, kept, or held as a pet by either party or a minor child residing in the household; and

* * *

(e)  Affidavit forms required pursuant to this section shall bear the following language: “MAKING FALSE STATEMENTS IN THIS AFFIDAVIT IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AS PROVIDED BY 13 V.S.A. § 2904.”

Sec. 6.  15 V.S.A. § 1105 is amended to read:

§ 1105.  SERVICE

(a) A complaint or ex parte temporary order or final order issued under this chapter shall be served in accordance with the rules of civil procedure and may be served by any sheriff, deputy sheriff, or any municipal or state police law enforcement officer.  Abuse orders shall be served at the earliest possible time and shall take precedence over other summonses and orders.  Orders shall be served in a manner calculated to insure the safety of the plaintiff.  Methods of service which include advance notification to the defendant shall not be used. The person making service shall file a return of service with the court stating the date, time and place at which the order was delivered personally to the defendant.

* * *

Sec. 7.  15 V.S.A. § 1107 is amended to read:

§ 1107.  FILING ORDERS WITH LAW ENFORCEMENT PERSONNEL; DEPARTMENT OF PUBLIC SAFETY RELIEF FROM ABUSE PROTECTION ORDER DATABASE

(a)  Police departments, sheriff’s departments and state police district offices shall establish procedures for filing abuse prevention orders issued under this chapter, chapter 69 of Title 33, chapter 178 of Title 12, and foreign abuse prevention orders and for making their personnel aware of the existence and contents of such orders.

(b)  Any court in this state that issues an abuse prevention order under section 1104 or 1103 of this chapter, or that files a foreign abuse prevention order in accordance with subsection 1108(d) of this chapter, shall transmit a copy of the order to the department of public safety relief from abuse protection order database.

Sec. 8.  33 V.S.A. § 6939 is amended to read:

§ 6939.  FILING ORDERS WITH LAW ENFORCEMENT PERSONNEL; DEPARTMENT OF PUBLIC SAFETY PROTECTION ORDER DATABASE

(a)  Police departments, sheriff’s departments and state police district offices shall establish procedures for filing orders issued under this subchapter and for making personnel aware of the existence and contents of such orders.

(b)  Any court in this state that issues an order under this subchapter shall transmit a copy of the order to the department of public safety protective order database.

Sec. 9.  REPORT FROM COURT ADMINISTRATOR

The court administrator shall report to the senate and house committees on judiciary on or before January 15, 2009 on the number of orders issued pursuant to this act and the implementation and administration of the provisions of the act concerning orders against stalking and sexual assault.

Sec. 10.  13 V.S.A. § 7554(a)(3) is amended to read:

(3)  A judicial officer may order that a defendant not harass or contact or cause to be harassed or contacted a victim or potential witness.  This order shall take effect immediately, regardless of whether the defendant is incarcerated or released. 

Sec. 11.  STUDY

(a)  A study committee is hereby established for the purpose of reviewing and addressing the rights of victims under current law to facilitate better enforcement of such rights and to consider specially the following issues:

(1)  scheduling and continuances of court hearings as they relate to victims;

(2)  the victim’s input with plea agreements and sentencing recommendations;

(3)  victim notification by the department of corrections and the parole board; and

(4)  the role of the victim at parole board hearings.

(b)  The committee shall consist of the following 15 members:

(1)  the executive director of the Vermont center for crime victim services or his or her designee;

(2)  the coordinator of the network against domestic and sexual violence or his or her designee;

(3)  two victims/survivors of crime who are members of the Vermont victim/survivor of crime council;

(4)  a representative of the prisoner’s rights office;

(5)  a representative of the Vermont chapter of the American Civil Liberties Union;

(6)  a defense attorney appointed by the Vermont bar association;

(7)  the attorney general or his or her designee;

(8)  the executive director of the department of state’s attorneys and sheriffs or his or her designee;

(9)  the court administrator or his or her designee;

(10)  the defender general or his or her designee;

(11)  the commissioner of public safety or his or her designee;

(12)  the commissioner of the department of corrections or his or her designee;

(13)  the chair of the Vermont parole board; and

(14)  an attorney appointed by the Vermont bar association.

(c)  In its deliberations, the committee shall consult with the governor’s criminal justice cabinet, as needed.

(d)  The committee shall have the assistance and cooperation of all state and local agencies and departments.  The center for crime victim services shall provide professional and administrative support for the committee.

(e)  The at-large members and victims/survivors of crime shall be entitled to per diem compensation and reimbursement for expenses in the same manner as legislative members, provided they are not state employees, through the center for crime victim services.

(f)  The committee shall present its findings and recommendations, including proposals for legislative action, to the general assembly no later than January 15, 2007.

and, that upon passage, the title be amended to read “AN ACT RELATING TO ORDERS AGAINST STALKING OR SEXUAL ASSAULT”

(Committee Vote: 6-0-1)

Reported favorably with recommendation of proposal of amendment by Senator Sears for the Committee on Appropriations.

The Committee recommends that the Senate propose to the House to amend the bill in Sec. 11 by striking out subsection (e) in its entirety and inserting in lieu thereof a new subsection (e) to read as follows:

(e)  The two victims/survivors of crime shall be entitled to per diem compensation and reimbursement for expenses provided in 32 V.S.A. § 1010 provided they are not state employees, through the center for crime victim services.

(Committee Vote: 5-0-2)

(For House amendments, see House Journal for February 16, 2006, page 373.)

H. 817

An act relating to stormwater management.

Reported favorably with recommendation of proposal of amendment by Senator Kittell for the Committee on Natural Resources and Energy.

The Committee recommends that the Senate propose to the House to amend the bill by as follows:

First:  In Sec. 2, 10 V.S.A. § 1264(a)(18), by striking out the words “natural and” where they appear after the words “surface drains,” and before the words manmade wetlands

Second:  By adding Secs. 5a and 5b to read as follows:

Sec. 5a.  10 V.S.A. § 1278 is added to read:

§ 1278.  OPERATION, MANAGEMENT, AND EMERGENCY RESPONSE PLANS FOR POLLUTION ABATEMENT FACILITIES

(a)  Findings.  The general assembly finds that the state shall protect Vermont’s lakes, rivers, and streams from pollution by implementing programs to prevent sewage spills to Vermont waters and by requiring emergency planning to limit the damage from spills which do occur.

(b)  Planning requirement.  Effective July 1, 2007, the secretary of natural resources shall, upon renewal of a permit issued under section 1263 of this title, require a pollution abatement facility, as that term is defined in section 1571 of this title, to prepare and implement an operation, management, and emergency response plan for each permitted facility.  An operation, management, and emergency response plan shall include the following:

(1)  Identification of those elements of the facility, including collection systems that are determined to be prone to failure based on installation, age, design, or other relevant factors. 

(2)  Identification of those elements of the facility identified under subdivision (1) of this subsection which, if one or more failed, would result in a significant release of untreated or partially treated sewage to surface waters of the state.

(3)  A requirement that the elements identified in subdivision (2) of this subsection shall be inspected in accordance with a schedule approved by the secretary of natural resources.

(4)  An emergency contingency plan to reduce the volume of a detected spill and to mitigate the effect of such a spill on public health and the environment.

(c)  The secretary of natural resources shall post publicly notice of an illegal discharge that may pose a threat to human health or the environment on its website within 24 hours of the agency’s receipt of notification of the discharge.

(d)  Rulemaking.  The secretary shall adopt rules implementing this section.

Sec. 5b.  10 V.S.A. § 1263(d) is amended to read:

(d)  A discharge permit shall:

(1)  specify the manner, nature, volume, and frequency of the discharge permitted and contain terms and conditions consistent with subsection (c) of this section;

(2)  require proper operation and maintenance of any pollution abatement facility necessary in the treatment or processing of the waste by qualified personnel in accordance with standards established by the secretary.  The secretary may require operators to be certified under a program established by the secretary.  The secretary may require a laboratory quality assurance sample program to insure qualifications of laboratory analysts;

(3)  contain an operation, management, and emergency response plan when required under section 1278 of this title and additional conditions, requirements, and restrictions as the secretary deems necessary to preserve and protect the quality of the receiving waters, including but not limited to requirements concerning recording, reporting, monitoring, and inspection of the operation and maintenance of waste treatment facilities and waste collection systems; and

(4)  be valid for the period of time specified therein, not to exceed five years.

Third:  By striking out Sec. 10 in its entirety and inserting in lieu thereof the following:

Sec. 10.  EFFECTIVE DATE

(a)  This section and Secs. 1 (findings), 2 (stormwater system definition), 3 (stormwater permitting compliance history), 4 (agricultural stormwater offset), 5 (orphan stormwater system pilot program), 6 (appropriations), 7 (agency of natural resources orphan stormwater system annual report), 8 (extension of local community implementation fund), and 9 (sunset of orphan stormwater system program) of this act shall take effect upon passage.

(b)  Sec. 5a (operation, management, and emergency response plans for pollution abatement facilities) shall take effect July 1, 2006.

(c)  Sec. 5b (wastewater discharge permits) shall take effect July 1, 2007.

(Committee Vote: 6-0-0)

Reported favorably by Senator Illuzzi for the Committee on Appropriations.

(Committee vote: 7-0-0)

(For House amendments, see House Journal for March 15, 2006, page 653.)

House Proposal of Amendment

S. 314

An act relating to early childhood education.

The House proposes to the Senate to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  PREKINDERGARTEN EDUCATION STUDY COMMITTEE

(a)  There is created a prekindergarten education study committee to be made up of two senators chosen by the committee on committees, two representatives chosen by the speaker, one representative of the department of education chosen by the commissioner, one representative of the department for children and families chosen by the secretary of human services, two members chosen by the governor, one representative of child care providers currently under contract with a public school district to provide prekindergarten services chosen by the commissioner of education, and one representative of child care providers who is not under contract with a public school chosen by the secretary of human services.  The committee may meet up to six times, shall receive per diem and expenses pursuant to 2 V.S.A. § 406 and 32 V.S.A. § 1010, and shall receive staff services from the legislative council, the joint fiscal office, the department of education, and the agency of human services.

(b)  The committee shall, at a minimum, gather the following information:

(1)  How many private and public or publicly funded prekindergarten education services currently exist in Vermont.

(2)  What kinds of services and educational programs are offered by existing prekindergarten education programs.

(3)  The costs of existing prekindergarten education programs and how they are funded.

(4)   Current department of education and agency of human services standards for prekindergarten education facilities. 

(c)  The committee shall, at a minimum, study and make findings regarding:

(1)  What the research says about the effects of prekindergarten education.

(2)  Whether prekindergarten education services should be offered at public expense and, if so:

(A)  whether services should be provided by public schools, private providers, or both;

(B)  the estimated costs of providing public prekindergarten programs and what public monies should be used to support them;

(C)  what would be the mechanism for dispersing these monies; and

(D)  what state agency or agencies should have responsibility for developing standards regarding the quality and content of prekindergarten education programs and for determining educator qualifications, and whether standards for public schools should differ from those for private providers.

(3)  Which groups of children benefit academically and socially from receiving prekindergarten educational services. 

(4)  Whether all groups of prekindergarten children benefit from an inclusionary educational environment.

(5)  Whether enrollment in a prekindergarten education program should be voluntary.

(6)  Whether participation may take place outside the district of residence.

(7)  Whether a community should conduct a needs assessment before starting or expanding a program, and if so, how private providers and school districts should be involved in the assessment. 

(d)  On or before January 30, 2007, the committee shall present the information it has gathered, its findings, and its recommendations to the senate and house committees on education, the senate committee on health and welfare, and the house committee on human services.

Sec. 2.  INTERIM PROVISIONS

(a)  In order to enable the legislative prekindergarten education study committee to accomplish its work and give the general assembly the time to consider and respond to the recommendations of the committee, the state board of education shall not change, repeal, or adopt any rules regarding provision of early childhood or prekindergarten education services prior to June 30, 2008.

(b)  During school year 2006–2007, only a school district which has planned and budgeted for a prekindergarten education program prior to July 1, 2006 shall be authorized to begin a new program.

(c)  During the 2007–2008 school year, a school district which begins a new program of prekindergarten education shall contract with qualified early childhood education service providers in the school district unless it determines that it cannot efficiently and effectively provide quality services using these providers, or that no qualified programs exist in the district or no private programs are interested in providing the services in collaboration with the school district.  In determining efficiency and effectiveness, school districts shall emphasize affordability, access, and high quality in early learning experiences.  In the case of a dispute, the commissioner of education shall determine whether a school district has met the requirements of this subsection, and a decision of the commissioner shall be final.

Sec. 3.  EFFECTIVE DATE

This act shall take effect on passage.

NOTICE CALENDAR

Favorable

H. 883

An act relating to amending the charter of the city of Burlington.

Reported favorably by Senator Condos for the Committee on Government Operations.

(Committee vote: 5-0-1)

(For House amendments, see House Journal for April 11, 2006, page 913).

Favorable with Proposal of Amendment

H. 306

An act relating to transportation of individuals in the custody of the state.

Reported favorably with recommendation of proposal of amendment by Senator Kittell for the Committee on Health and Welfare.

     The Committee recommends that the Senate propose to the House to amend the bill as follows:

First:  In Sec. 1, 33 V.S.A. § 5541, by adding a new subsection (d) to read as follows:

(d)  It is the policy of the state of Vermont that mechanical restraints are not routinely used on children subject to this chapter unless circumstances dictate that such methods are necessary.

Second:  In Sec. 2, 18 V.S.A. § 7511, by adding a new subsection (d) to read as follows:

(d)  It is the policy of the state of Vermont that mechanical restraints are not routinely used on persons subject to this chapter unless circumstances dictate that such methods are necessary.

Third:  In Sec. 3, by adding a new subsection (c) to read as follows:

(c)  The department for children and families, the department of health, the department of corrections, the department of state’s attorneys and sheriffs, the office of the defender general, and the court administrator’s office shall meet to discuss protocols for the secure transport of children and pregnant inmates who are in state custody and develop strategies for reducing the frequency and necessity of secure transports using mechanical restraints.  The group shall provide the house committee on human services and the senate committee on health and welfare with a letter detailing its findings and recommendations no later than January 15, 2007.

Fourth:  By adding a new section to be numbered Sec. 4 to read as follows:

Sec. 4.  28 V.S.A. § 801a is added to read:

§ 801a.  PREGNANT INMATES

(a)  It shall be the policy of the state of Vermont to respect the unique health issues associated with a pregnant inmate.  The department of corrections shall not routinely restrain pregnant inmates who are beyond their first trimester of pregnancy in the same manner as other inmates, recognizing that to do so might pose undue health risks for the mother and unborn child.

(b)  The commissioner of the department of corrections shall ensure that all reasonable and appropriate measures consistent with public safety are made to transport a pregnant inmate in a manner which:

(1)  prevents physical and psychological trauma;

(2)  respects the privacy of the individual; and

(3)  represents the least restrictive means necessary for the safety of the inmate, medical and correctional personnel, and the public.

(c)  Unless the inmate presents a substantial flight risk or other extraordinary circumstances dictate otherwise, mechanical restraints of any kind shall not be used on a pregnant inmate after she has been declared by an attending health care practitioner to be in active labor.  The inmate shall remain unrestrained after delivery while in recovery at the hospital.  If restraints are used while the inmate is in labor or in the hospital during recovery after delivery, the commissioner of corrections shall make written findings as to the reasons why mechanical restraints were necessary to prevent escape or to ensure the safety of the inmate, medical and correctional personnel, or the public.

(d)  The department shall provide personnel as may be necessary to supervise the inmate to and from the hospital and during her stay at the hospital.

(Committee vote: 5-0-1)

(For House amendments, see House Journal for February 28, 2006, page 495.)

H. 568

An act relating to applicability of an act regarding trustees.

Reported favorably with recommendation of proposal of amendment by Senator Gander for the Committee on Finance.

The Committee recommends that the Senate propose to the House to amend the bill to amend the bill as follows:

First:  By adding a new section to be numbered  Sec. 2 to read as follows:

Sec. 2.  14 V.S.A. § 2314(c) is amended to read:

(c)  A co-trustee or a majority of the beneficiaries to whom or for whose use the current net income of the trust estate is at the time authorized or required to be paid or applied and who shall at the time be at least 18 years of age who believe that an existing trustee should be replaced by a more suitable trustee may petition the court for a replacement.  The court may grant the petition, remove an existing trustee, and appoint a replacement trustee if, after giving notice as provided by the Vermont Rules of Probate Procedure, the court finds that a change in trustee would be in keeping with the intent of the grantor.  In deciding whether to replace a trustee, the court may consider shall find based on the following factors that the intent of the grantor has been significantly frustrated:

* * *

And by renumbering the remaining sections to be numerically correct

Second:  In renumbered Sec. 3, 14 V.S.A. § 2314(e), after the following: “relating to the action” by adding the following: if the court finds that the action of the trustee so removed in administering the trust was a breach of the trustee's fiduciary duty

Third:  By adding a new section to be numbered Sec. 4 to read as follows:

Sec. 4.  32 V.S.A. § 1434(a) is amended to read:

(a)  The following entry fees shall be paid to the probate court for the benefit of the state, except for subdivision (13) of this subsection which shall be for the benefit of the county in which the fee was collected:

* * *

(8)  Annual accounts on decedents’                                 $  25.00

estates filed for any period

ending more than one year

following the death of the

decedent opening of the estate

* * *

(17)  Petitions for removal of a                                        $50.00

trustee pursuant to 14 V.S.A. § 2413(c)

of trusts under $20,000.00 or less

(18)  Petitions for removal of a trustee                             $100.00

pursuant to 14 V.S.A. § 2413(c) of trusts

of more than $20,000.00

(19)  Petitions concerning advance                                               $75.00

directives pursuant to 18 V.S.A. § 9718

(Committee vote: 6-0-1)

(For House amendments, see House Journal for February 3, 2006, page 216.)

H. 618

An act relating to Health and Welfare.

Reported favorably with recommendation of proposal of amendment by Senator Lyons for the Committee on Health and Welfare.

     The Committee recommends that the Senate propose to the House to amend the bill by striking out Sec. 4 in its entirety and inserting a new Sec. 4 to read as follows:

Sec. 4.  TRANSITIONAL YOUTHS; SERVICES STUDY

(a)  The agency of human services, in consultation with the department of education, shall analyze current law and regulation regarding Medicaid eligibility for young adults between the ages of 18 and 22 and shall report on the following:

(1)  current Medicaid eligibility requirements;

(2)  how the state currently administers Medicaid for youth, including the type of outreach that has been done to assure a full opportunity for enrollment;

(3)  an estimate of the percentage of eligible youths who are enrolled;

(4)  additional options available to increase access to Medicaid coverage for all categories of potentially eligible youths over the age of 18, including but not limited to the developmentally disabled youths who are not in custody, and the cost of each option;

(5)  the cost of extending health care coverage through Medicaid, the Vermont health access plan, Dr. Dynasaur, or an other state-funded health care program solely to an individual under the custody of the state on his or her 18th birthday for the period of time the individual attends college or postsecondary training.

(b)  The agency of human services shall study the costs and benefits of providing necessary and essential transitional services up to age 22 for a youth who has been in the custody of the state; has a developmental disability and has been receiving state‑funded services or services under an individual education plan (IEP) on the youth’s 18th birthday; or has been receiving state‑funded services for severe emotional disturbance on his or her 18th birthday in order to assist the youth in becoming a self-sufficient adult.

(c)  The agency of human services shall study the costs and benefits of continuing Reach Up assistance under chapter 11 of Title 33 while the child is a full-time student to families whose child reaches the age of majority and attends a postsecondary education or training program.  The study shall include a financial analysis, the feasibility of using TANF funds for this purpose, and any other issues relating to the use of federal funds for this purpose.

(d)  The reports under this section shall be provided to the senate committee on health and welfare and the house committee on human services no later than January 15, 2007.

(Committee vote: 5-0-1)

(For House amendments, see House Journal for March 15, 2006, page 650 and March 16, 2006, page 663.)

H. 702

An act relating to executive branch fees.

Reported favorably with recommendation of proposal of amendment by Senator Cummings for the Committee on Finance.

The Committee recommends that the Senate propose to the House to amend the bill as follows:

First:  In Sec. 2. 7 V.S.A. §231(a), by striking out subdivisions (6), (10), (11), (12) (13), and (15) and inserting in lieu thereof:

(6)  For a third class license, $440.00 $880.00 for an annual license and $275.00 $440.00 for a six months’ month license;.

* * *

(10)  For a third class cabaret license, $440.00 $880.00 for an annual license and $275.00 $440.00 for a six months’ month license;.

(11)  For up to four ten fourth class vinous licenses, $50.00; $100.00.

(12)  For vinous direct sales by a manufacturer or rectifier, $50.00; $300.00.

(13)  For a special events permit, $25.00; $100.00.

* * *

(15)  For a wine tasting permit, $15.00 $50.00.

Second:  By striking out Sec. 23 in its entirety and inserting in lieu thereof two new sections to be numbered Sec. 23 and 23a to read as follows::

Sec. 23. 13 V.S.A. §7282(a) is amended to read as follows:

(a) In addition to any penalty or fine imposed by the court or judicial bureau for a criminal offense or any civil penalty imposed for a traffic violation, including any violation of a fish and wildlife statute or regulation, violation of a motor vehicle statute, or violation of any local ordinance relating to the operation of a motor vehicle, except violations relating to seat belts and child restraints and ordinances relating to parking violations, the clerk of the court or judicial bureau shall levy an additional fee of:

* * *

(7) For any offense or violation committed after June 30, 2005, but before July 1, 2006, $22.00, of which $14.75 shall be deposited into the victims' compensation special fund and $2.25 shall be deposited into the criminal justice training council special fund established in section 2363 of Title 20.

(8)  For any offense or violation committed after June 30, 2006, $26.00, of which $18.75 shall be deposited in the victims’ compensation special fund and $2.25 shall be deposited into the criminal justice training council special fund established in section 2363 of Title 20.

(9)  For any offense or violation committed after June 30, 2003, an amount equal to 15 percent of the fine imposed for the offense, rounded upward to the nearest whole dollar, which shall be deposited into the crime victims’ restitution special fund established by section 5363 of this Title.

Sec. 23a. REPEAL

Sec. 13 of 49 of the acts of 2001 (adjourned session) is repealed.

(Committee Vote: 5-0-2)

(No House amendments.)

H. 867

An act relating to miscellaneous changes to education law.

Reported favorably with recommendation of proposal of amendment by Senator Wilton for the Committee on Education.

The Committee recommends that the Senate propose to the House to amend the bill by as follows:

First:  In Sec. 16, in the catchline, by striking out the word “POSTPARTUM” and inserting in lieu thereof the word PARENTING and in the first sentence of subsection (a) by striking out the word “postpartum” and inserting in lieu thereof the word parenting

Second:  In Sec. 16, subsection (c), in the first sentence, following the words “A school district shall pay” by inserting “up to” and by striking out the word postpartum and inserting in lieu thereof the word parenting

Third:  In Sec. 22, at the end of the section, by adding three new subsections (e), (f) and (g) to read:

(e)  The commissioner of education shall work with Vermont educators and the state board of education to study the quality of Vermont public schools and independent schools which receive public funds and to study and analyze methods to reduce costs.  On or before January 30, 2007, the commissioner shall deliver the results of the analysis and recommendations for legislative action to the senate and house committees on education.

(f)  On or before January 30, 2007, the commissioner of education shall report to the senate and house committees on education regarding recommendations, if any, for amendments to Title 16 provisions addressing school district auditing requirements, including the frequency and scope.  In developing the recommendations, the commissioner shall confer with the state auditor of accounts and with representatives of the Vermont association of school business officials, the Vermont superintendents association, and the Vermont school board association.

(g)  The commissioner of education shall gather information which will facilitate discussion about increasing the compulsory education age to 18 during the next legislative session, and present the data to the Senate and House committees on education during January, 2007.  Information gathered shall include the number of young people who have dropped out of school in each of the last 10 years, the types of facilities and programs that are available to help young people at risk of not completing school to obtain a high school diploma or its equivalent, costs of services alternative to the public school system, and other information which will inform the discussion.

Fourth:  Following Sec. 23, by inserting two new Secs. 24 and 25 to read:

Sec. 24.  16 V.S.A. § 2963a(a) is amended to read:

(a)  The commissioner of education, in place of reimbursement under section 2963 of this title, shall reimburse a school district for 80 percent of the following expenditures:

(1)  costs not eligible for reimbursement under section 2962 of this title for each student causing the school district to be eligible for extraordinary services reimbursement pursuant to that section.  However, in order for a school district to be eligible for reimbursement under this section, the total costs of the district eligible for extraordinary services reimbursement must equal or exceed 15 percent of the total costs eligible for state assistance under sections 2961, 2962, and 2963 of this title; and

(2)  the costs incurred by the school district in placing and maintaining a student in a program operated by the Vermont Center for the Deaf and Hard of Hearing.  However, such expenditures do not include costs incurred for up to two such students by a school district with an average daily membership of fewer than 1,000 and for up to three such students by a school district with an average daily membership of 1,000 or greater.

Sec. 25.  REPEAL EXTENSION

16 V.S.A. § 711b shall remain in effect until July 1, 2008, notwithstanding the provisions of Sec. 15(4) of No. 130 of the Acts of the 2003 Adj. Sess. (2004) which repeals the section effective July 1, 2006.

Fifth:  By striking out Secs. 4 and 18 in their entirety, renumbering the sections of the bill to be numerically correct, and in the old Sec. 24(a) by striking out "Sec. 16(c)" and inserting in lieu thereof Sec. 15(c)

(Committee Vote: 4-0-1)

(For House amendments, see House Journal for April 4, 2006, page 816.)

H. 881

An act making appropriations for the support of government.

Reported favorably with recommendation of proposal of amendment by Senator Bartlett for the Committee on Appropriations.

(For Committee Report, see Addendum to Senate Calendar for Thursday, April 25, 2006)

(Committee Vote: 7-0-0)

(For House amendments, see House Journal for March 24, 2006, page 756)

House Proposal of Amendment

S. 50

An act relating to riots.

The House proposes to the Senate to amend the bill by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  13 V.S.A. § 901 is amended to read:

§ 901.  DUTIES OF OFFICERS

A district judge, sheriff, deputy sheriff or constable police chief, or the commissioner of the department of public safety, or their designees having notice or knowledge of the unlawful, tumultuous, or riotous assemblage of three or more persons within his or her jurisdiction, among or as near as he or she can safely come to such rioters, shall command them in the name of the state of Vermont immediately and peaceably to disperse.  If after such command such rioters do not disperse, such the law enforcement officer or magistrate and such other person as he or she commands to assist him or her shall apprehend and forthwith take them before a district court.

Sec. 2.  13 V.S.A. § 902 is amended to read:

§ 902.  RIOTERS REFUSING TO DISPERSE

Persons so unlawfully and riotously assembled who, after proclamation made, do not immediately disperse, and persons unlawfully and riotously assembled to the number of three or more who do an unlawful act against a man’s person or property or against the public interest, and persons present at the place of an unlawful or riotous assemblage who, when commanded by a magistrate or law enforcement officer to assist him or her or to leave the place of such riotous assemblage, fails so to do, shall each be imprisoned not more than six months or fined not more than $100.00, or both.

Sec. 3.  FINDINGS

The general assembly finds:

(1)  Families and friends have a substantial interest in organizing and attending funerals for deceased relatives.

(2)  The interest of families in being able to mourn privately and peacefully the loss of deceased relatives is violated when a funeral becomes the target of picketing and other public demonstrations.

(3)  Picketing related to a funeral causes emotional distress to the grieving families during a difficult and private time.

(4)  Full opportunity exists under the terms and provisions of this act to exercise freedom of speech and other constitutional rights other than during funerals and within one hour before a funeral.

Sec 4.  13 V.S.A. § 3771 is added to read:

§ 3771.  DISTURBING A FUNERAL SERVICE

(a)  As used in this section:

(1)  “Funeral service” means the ceremonies, rituals, and memorial services held at a church, mortuary, cemetery, or home in connection with the burial or cremation of a dead person.

(2)  “Picketing” means a protest, demonstration or other similar activity directed at a funeral service.

(b)  No person shall disturb or attempt to disturb a funeral service by engaging in picketing within 100 feet of the service within one hour prior to and two hours following the publicly announced time of the commencement of the service.

(c)  A person who violates this section shall be imprisoned not more than 30 days or fined not more than $500.00, or both..

House Proposal of Amendment

S. 194

An act relating to sealing juvenile records relating to a delinquent act.

The House proposes to the Senate to amend the bill as follows:

First:  By striking Sec. 2 in its entirety and inserting in lieu thereof the following:

Sec. 2.  33 V.S.A. § 5538 is amended to read:

§ 5538.  SEALING OF RECORDS

(a)(1)  On application of a child who has been adjudicated delinquent or in need of care or supervision, or on the court’s own motion, and after notice to all parties of record and hearing  Except as provided in subsection (b) of this section, in matters relating to a child who has been adjudicated delinquent on or after July 1, 2004, the court shall order the sealing of all files and records of the court applicable related to the proceeding if it two years have elapsed since the final discharge of the person unless, on motion of the state’s attorney, the court finds;:

(1)  Two years have elapsed since the final discharge of the person,

(2)  He (A)  the person has not been convicted of a felony or misdemeanor involving moral turpitude listed crime as defined in 13 V.S.A.

§ 5301 or adjudicated delinquent or in need of care or supervision of such an offense after such initial adjudication and prior to the hearing and no, or a proceeding is pending seeking such conviction or adjudication, and; or

(3)(B)  His rehabilitation of the person has not been attained to the satisfaction of the court. 

(2)  At least 60 days prior to the date upon which a person is eligible to have his or her delinquency record automatically sealed pursuant to subdivision (1) of this subsection, the court shall provide such person’s name and other identifying information to the state’s attorney in the county in which the person was adjudicated delinquent.

(b)  On application of a child who has been adjudicated delinquent on or after July 1, 2004 for an offense listed in 13 V.S.A. § 5301, after notice to all parties of record and hearing, the court shall order the sealing of all files and records related to the proceeding if it finds:

(1)  two years have elapsed since the final discharge of the person;

(2)  the person has not been convicted of a listed crime as defined in 13 V.S.A. § 5301 or adjudicated delinquent for such an offense after such initial adjudication and no new proceeding is pending seeking such conviction or adjudication; and

(3)  the person’s rehabilitation has been attained to the satisfaction of the court.  

(c)  In matters relating to a child who has been adjudicated delinquent prior to July 1, 2004, on application of the child or on the court’s own motion, and after notice to all parties of record and hearing, the court shall order the sealing of all files and records related to the proceeding if it finds:

(1)  two years have elapsed since the final discharge of the person;

(2)  the person has not been convicted of a listed crime or adjudicated delinquent for such an offense after such initial adjudication and no new proceeding is pending seeking such conviction or adjudication; and

(3)  the person’s rehabilitation has been attained to the satisfaction of the court.  

(d)  On application of a person who, while a child, was found to be in need of care or supervision or on the court’s own motion, after notice to all parties of record and hearing, the court may order the sealing of all files and records related to the proceeding if it finds:

(1)  the person has reached the age of majority; and

(2)  sealing the person’s record is in the interest of justice.

(e)  The application or motion and the order may Except as provided in subsection (i) of this section or otherwise provided, orders issued in accordance with this section shall include the files and records specified in sections 5536 and 5537 of this title of the court, law enforcement, prosecution, and the department for children and families related to the specific court proceeding that is the subject of the sealing.

(b)  Notice of a hearing held under this section shall in any event be given to:

(1)  The state’s attorney having jurisdiction,

(2)  If the final discharge was from an institution or from parole, the authority granting the discharge, and

(3)  If the files and records specified in sections 5536 and 5537 of this title are included in the application or motion, the law enforcement officers or department having custody of the files and records.

(c)(f)(1)  Upon Except as provided in subdivision (2) of this subdivision, upon the entry of an order sealing such files and records under this section, the proceedings in the matter under this act shall be considered never to have occurred, all general index references thereto shall be deleted, and the person, the court, and law enforcement officers and departments shall reply to any request for information that no record exists with respect to such person upon inquiry in any matter.  Copies of the order shall be sent to each agency or official named therein.

(2)(A)  Any court, agency, or department that seals a record pursuant to an order under this section may keep a special index of files and records that have been sealed.  This index shall only list the name and date of birth of the subject of the sealed files and records and the docket number of the proceeding which was the subject of the sealing.  The special index shall be confidential and may be accessed only for purposes for which a department or agency may request to unseal a file or record pursuant to subsection (g) of this section. 

(B)  Access to the special index shall be restricted to the following persons:

(i)  the clerk of the district or family court;

(ii)  the commissioner and general counsel of any administrative department;

(iii)  the secretary and general counsel of any administrative agency;

(iv)  a sheriff;

(v)  a police chief;

(vi)  a state’s attorney;

(vii)  the attorney general;

(viii)  the director of the Vermont crime information center; and

(ix)  a designated clerical staff person in each office identified in subdivisions (i) – (viii) of this subdivision (B) who is necessary for establishing and maintaining the indices for persons who are permitted access.

(C)  Persons authorized to access an index pursuant to subdivision (B) of this subdivision (2) may access only the index of their own department or agency.

(d)(g)(1)  Inspection Except as provided in subdivisions (2), (3), and (4) of this subsection, inspection of the files and records included in the order may thereafter be permitted by the court only upon petition by the person who is the subject of such records, and only to those persons named therein.

(2)  Upon a confidential motion of any department or agency that was required to seal files and records pursuant to subsection (e) of this section, the court may permit the department or agency to inspect its own files and records if it finds circumstances in which the department or agency requires access to such files and records to respond to a legal action, a legal claim, or an administrative action filed against the department or agency in relation to incidents or persons that are the subject of such files and records.  The files and records shall be unsealed only for the minimum time necessary to address the circumstances enumerated in this subdivision, at which time the records and files shall be resealed.

(3)  Upon a confidential motion of the department for children and families, the court may permit the department to inspect its own files and records if the court finds extraordinary circumstances in which the state’s interest in the protection of a child clearly outweighs the purposes of the juvenile sealing law and the privacy rights of the person or persons who are the subjects of the record, and the sealed record is necessary to accomplish the state’s interest.  The motion may be heard ex parte if the court, based upon an affidavit, finds a compelling purpose exists to deny notice to the subject of the files and records when considering whether to grant the order.  If the order to unseal is issued ex parte, the court shall send notice of the unsealing to the subject of the files and records within 20 days unless the department provides a compelling reason why the subject of the files and records should not receive notice.  The files and records shall be unsealed only for the minimum time necessary to address the extraordinary circumstances at which time the files and records shall be resealed.

(4)  Upon a confidential motion of a law enforcement officer or prosecuting attorney, the court may permit the department or agency to inspect its own files and records if the court finds extraordinary circumstances in which the state’s interest in public safety clearly outweighs the purposes of the juvenile sealing law and the privacy rights of the person or persons who are the subjects of the record, and the sealed record is necessary to accomplish the state’s interest.  The motion may be heard ex parte if the court, based upon an affidavit, finds a compelling public safety purpose exists to deny notice to the subject of the files and records when considering whether to grant the order.  If the order to unseal is issued ex parte, the court shall send notice of the unsealing to the subject of the files and records within 20 days unless the law enforcement officer or prosecuting attorney provides a compelling public safety reason why the subject of the files and records should not receive notice.   The files and records shall be unsealed only for the minimum time necessary to address the extraordinary circumstances at which time the files and records shall be resealed. 

(5)  The order unsealing a record must state whether the record is unsealed entirely or in part and the duration of the unsealing.  If the court's order unseals only part of the record or unseals the record only as to certain persons, the order must specify the particular records that are unsealed or the particular persons who may have access to the record, or both. 

(e)(h)  On application of a person who has pleaded guilty to or has been convicted of the commission of a crime committed under the laws of this state prior to attaining the age of majority, or on the motion of the court having jurisdiction over such a person, the files and records may be sealed after proceedings in conformity with and subject to the limitations of subsections (a), (b), (c) and (d) of this section after notice to all parties of record and hearing, the court shall order the sealing of all files and records related to the proceeding if it finds:

(1)  two years have elapsed since the final discharge of the person;

(2)  the person has not been convicted of a listed crime as defined in 13 V.S.A. § 5301 or adjudicated delinquent for such an offense after the initial conviction and no new proceeding is pending seeking such conviction or adjudication; and

(3)  the person’s rehabilitation has been attained to the satisfaction of the court.  

(i)(1)  In matters relating to a person who was charged with a criminal offense on or after July 1, 2006 and prior to the person attaining the age of majority, the files and records of the court applicable to the proceeding shall be sealed immediately if the case is dismissed.

(2)  In matters relating to a person who was charged with a criminal offense prior to July 1, 2006 and prior to the person attaining the age of majority, the person may apply to seal the files and records of the court applicable to the proceeding.  The court shall order the sealing, provided that two years have elapsed since the dismissal of the charge.

(j)  Upon receipt of a court order to seal a record relating to an offense for which there is an identifiable victim, a state’s attorney shall record the name and date of birth of the victim, the offense, and the date of the offense.  The name and any identifying information regarding the defendant shall not be recorded.  Victim information retained by a state’s attorney pursuant to this subsection shall be available only to victims’ advocates, the victims’ compensation program, and the victim and shall otherwise be confidential.

(k)  For purposes of this section, to “seal” a file or record means to physically and electronically segregate the record in a manner that ensures confidentiality of the record and limits access only to those persons who are authorized by law or court order to view the record.  A “sealed” file or record is retained and shall not be destroyed unless a court issues an order to expunge the record.

(l)  The court shall provide assistance to persons who seek to file an application for sealing under this section.

(m)  Any entities subject to sealing orders pursuant to this section shall establish policies for implementing this section and shall provide a copy of such policies to the house and senate committees on judiciary no later than January 15, 2007.  State’s attorneys, sheriffs, municipal police, and the judiciary are encouraged to adopt a consistent policy that may apply to each of their independent offices and may submit one policy to the general assembly.

Second:  By adding Sec. 6a to read as follows:

Sec. 6a.  13 V.S.A. § 7041(d) is amended to read:

(d)  Upon violation of the terms of probation or of the deferred sentence agreement, the court shall impose sentence.  Upon fulfillment of the terms of probation and of the deferred sentence agreement, the court shall strike the adjudication of guilt and discharge the respondent.  Upon discharge, the record of the criminal proceedings shall be expunged as if an application pursuant to section 5538 of Title 33 had been granted, except that the record shall not be expunged until restitution has been paid in full, absent a finding of good cause by the court.

Third:  In Sec. 7, subsection (b), by striking subdivisions (7) and (8) and inserting in lieu thereof:

(7)  an attorney specializing in representing children in juvenile proceedings appointed by the Vermont bar association;

(8)  an attorney specializing in representing parents in juvenile proceedings appointed by the Vermont bar association;

(9)  the commissioner of public safety or his or her designee; and

(10)  a representative from the Vermont center for crime victim services.

Fourth:  By striking Sec. 8 in its entirety and adding the following Secs. 8 – 15 to read:

Sec. 8.  14 V.S.A. § 3061 is amended to read:

§ 3061.  DEFINITIONS

The words and phrases used in this subchapter shall be defined as follows:

* * *

(4)  "Mentally retarded" “Developmentally disabled” means significantly subaverage intellectual functioning which exists concurrently with deficits in adaptive behavior;

* * *

(11)  "Respondent" means a person who is the subject of a petition filed pursuant to section 3063 of this title or a ward who is the subject of any subsequent petition, motion or action filed pursuant to this subchapter.

(12)  “Party” shall have the same meaning as defined by Rule 17(a)(3) and (b) of the Vermont Rules of Probate Procedure.

(13)  “Ward” means a person under a guardianship order.

Sec. 9.  14 V.S.A. § 3065 is amended to read:

§ 3065.  COUNSEL

(a)(1)  Counsel shall be appointed for the respondent in initial proceedings relating to an involuntary guardianship up to and including the appointment of a guardian under section 3069 or 3070 of this title or dismissal of the petition under section 3068 of this title. Counsel shall have the right to withdraw after a guardian is appointed or after dismissal.  The respondent shall have the right to be represented by counsel of his or her own choosing at any stage of a guardianship proceeding.  Unless a respondent is already represented, the court:

(A)  shall appoint counsel for the respondent when an initial petition for guardianship is filed;

(B)  shall appoint counsel for the respondent in any subsequent proceeding if the respondent or a party requests appointment in writing; and

(C)  may appoint counsel for the respondent on the court’s initiative in any subsequent proceeding.

(2)  Appointed counsel shall have the right to withdraw upon conclusion of the proceeding for which he or she has been appointed.

(b)  Counsel shall receive a copy of the petition upon appointment and copies of all other documents upon filing with the court.  Counsel shall consult with the respondent prior to the any hearing and, to the maximum extent possible, explain to the respondent the meaning of the proceedings and of all relevant documents.  Counsel for the respondent shall act as an advocate for the respondent and shall not substitute counsel’s own judgment for that of the respondent on the subject of what may be in the best interest of the respondent.  Counsel’s role shall be distinct from that of a guardian ad litem if one is appointed.  At a minimum, counsel shall endeavor to ensure that:

(1)  the wishes of the respondent, including those contained in an advance directive, as to the matter before the court are presented to the court;

(2)  there is no less restrictive alternative to guardianship or to the matter before the court;

(3)  proper due process procedure is followed;

(4)  no substantial rights of the respondent are waived, except with the respondent’s consent and the court’s approval, provided that the evaluation and report required under section 3067 of this title and the hearing required under section 3068 of this title may not be waived;

(5)  the petitioner proves allegations in the petition by clear and convincing evidence in an initial proceeding, and applicable legal standards are met in subsequent proceedings;

(6)  the proposed guardian is a qualified person to serve or to continue to serve, consistent with section 3072 of this title; and

(7)  if a guardian is appointed, the initial order or any subsequent order is least restrictive of the ward's personal freedom consistent with the need for supervision.

     (c)  Respondent's counsel shall be compensated from the respondent's estate unless the respondent is found indigent in accordance with Rule 3.1 of the Rules of Civil Procedure.  For indigent respondents, the court shall maintain a list of pro bono counsel from the private bar to be used before appointing nonprofit legal services organizations to serve as counsel.

Sec. 10.  14 V.S.A. § 3068a is added to read:

§ 3068a.  RIGHTS OF A WARD

A ward retains the same legal and civil rights guaranteed to all Vermont residents under the Vermont and United States constitutions and all the laws and regulations of Vermont and the United States.  These rights include:

(1)  The right to participate in decisions made by the guardian and to have personal preferences followed unless:

(A)  the preference is unreasonable and would result in actual harm; or

(B)  the ward does not have a basic understanding of the benefits and consequences of his or her chosen preference.

(2)  The right, without interference from anyone, to retain an attorney and to communicate freely with counsel, the court, ombudsmen, advocates of his or her choosing, and other persons authorized by law to act as an advocate for the ward. 

Sec. 11.  14 V.S.A. § 3069(b)(5) is amended to read:

(5)  to consent to surgery or other medical procedures, subject to the provisions of section 3075 of this title, subsection 9711(g) of Title 18, and any constitutional right of the ward to refuse treatment;

Sec. 12.  14 V.S.A. § 3073 is amended to read:

§ 3073.  CHANGE OF RESIDENTIAL PLACEMENT

(a)(1)  When a guardian who has been granted the power to choose or change the residence of the ward pursuant to section subdivision 3069(b)(1) of this title wishes to admit the ward to a nursing home or change the residential placement of the ward from a private home to a boarding home, nursing home, residential care home, assisted living residence, group home, or other similar facility, the guardian must first file a motion for permission to do so. 

(2)  For any other change of residence sought by a guardian who has been granted the power to choose or change the residence of the ward pursuant to subdivision 3069(b)(1) of this title, the guardian shall give notice to all parties and to such other persons as the court directs as soon as practicable prior to the change of placement.

(b)(1)  In an emergency, the a guardian who has been granted the power to choose or change the residence of the ward pursuant to subdivision 3069(b)(1) of this title may change the residential placement of the ward from a private home to a boarding home, nursing home, residential care home, group home or other similar facility without petitioning the probate court for prior permission without petitioning the court for prior permission or without giving prior notice to parties.  Immediately after the any emergency change in residential placement for which prior permission under subsection (a) of this section would be required in the absence of an emergency, the guardian shall file a motion for permission to continue the placement.  A hearing on the change in residential placement

(2)  Immediately after any emergency change of placement for which prior permission under subsection (a) of this section is not required, the guardian shall give notice of the change of placement to all parties and to such other persons as the court directs.

(3)  Any party may request a hearing on a change in residential placement.  The hearing shall be set for the earliest possible date and shall be given precedence over other probate matters.

(c)  In a hearing on a change of placement, the court shall consider:

(1)  the need for the change of placement;

(2)  the appropriateness of the new placement;

(3)  the wishes of the ward, if known; and

(4)  whether the guardian has considered alternatives.

Sec. 13.  STUDY; GUARDIANSHIP MONITORS

(a)  The general assembly finds:

(1)  Current law requires guardians to file annual reports with the court about the financial and personal status of the person in need of guardianship. Frequently, annual accountings and personal status reports either are not filed or are filed but contain incomplete or inaccurate information.

(2)  Currently, courts may not have the resources to monitor every guardianship and must rely on the information provided by the guardian in the annual report to identify problems that arise in the guardianship.  Mistakes, conflicts of interest, and abuses of power may go unnoticed unless the guardian or a person interested in the welfare of the ward brings it to the court’s attention.

(3)  Current law requires annual notices to wards of the right to petition to terminate or modify guardianships.  Even when annual notices are sent, wards may not be able to take steps on their own to bring issues to the attention of the court, even when real issues exist.

(4)  A system of comprehensive monitoring may help protect the rights and interests of persons under guardianship.

(b)  A committee is established to study the need for and feasibility of establishing a pilot guardianship monitor program in at least two probate court districts.

(c)  The committee shall consist of the following members:

(1)  Two sitting probate judges appointed by the Vermont association of probate judges.  The association shall designate one of its appointees as the convening authority.

(2)  A member of the court administrator’s office.

(3)  A representative of the elder law committee of the Vermont bar association.

(4)  A representative of the disability law committee of the Vermont bar association.

(5)  A representative of Vermont Legal Aid, Inc.

(6)  Two representatives appointed by the secretary of the agency of human services, including a representative from the department of disabilities, aging, and independent living.

(7)  A representative of the community of Vermont elders.

(8)  A representative of Vermont protection and advocacy.

(9)  A representative of the Vermont coalition of disability rights.

(d)  The committee shall report its findings and recommendations to the house and senate committees on judiciary and the governor on or before January 15, 2007.  The report shall include a recommendation of whether a system of guardianship monitoring is needed and, if so, a complete description, analysis, and recommendations for the following:

(1)  The duties and responsibilities of the monitor.

(2)  The number of monitors needed to staff a pilot program.

(3)  The location and supervision of the monitor.

(4)  The relationship of the monitor to the probate judges and the court administrator’s office.

(5)  The average caseload of a monitor.

(6)  The cost of establishing a pilot guardianship monitor program and the cost of a statewide guardianship monitor program.

(7)  The probate court districts which will be included in a pilot program.

(8)  The method for measuring the outcome of a pilot program.

(9)  The duration of a pilot program.

Sec. 14.  STATUTORY REVISION

The office of legislative council shall revise subchapter 12 of chapter 111 of Title 14 by substituting the term “developmentally disabled” for the term “mentally retarded” wherever it appears.

Sec. 15.  EFFECTIVE DATE

Secs. 7 and 13 of this act shall take effect upon passage, and the remainder of the act shall take effect August 1, 2006.

House Proposal of Amendment

S. 198

An act relating to a “Sorry Works” program.

The House proposes to the Senate to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  12 V.S.A. § 1912 is added to read:

§ 1912.  EXPRESSION OF REGRET OR APOLOGY BY HEALTH CARE PROVIDER INADMISSIBLE

(a)  An oral expression of regret or apology, including any oral good faith explanation of how a medical error occurred, made by or on behalf of a health care provider or health care facility, that is provided within 30 days of when the provider or facility knew or should have known of the consequences of the error, does not constitute a legal admission of liability for any purpose and shall be inadmissible in any civil or administrative proceeding against the health care provider or health care facility, including any arbitration or mediation proceeding.

(b)  In any civil or administrative proceeding against a health care provider or health care facility, including any arbitration or mediation proceeding, the health care provider, health care facility, or any other person who makes an oral expression of regret or apology, including any oral good faith explanation of how a medical error occurred, on behalf of the provider or facility, that is provided within 30 days of when the provider or facility knew or should have known of the consequences of the potential adverse outcome, may not be examined by deposition or otherwise with respect to the expression of regret, apology, or explanation.

(c)  As used in this section:

(1)  “Health care facility” shall have the same meaning as in subdivision 9402(7) of Title 18.

(2)  “Health care provider” shall have the same meaning as in subdivision 9402(8) of Title 18.

(d)  The liability protections afforded by subsections (a) and (b) of this section shall not be construed to limit access to information that is otherwise discoverable.

(e)  This section shall apply only to medical errors that occur on or after July 1, 2006.

Sec. 2.  SORRY WORKS! PILOT PROGRAM

(a)  For purposes of this section:

(1)  “Commissioner” means the commissioner of banking, insurance, securities, and health care administration.

(2)  “Department” means the department of banking, insurance, securities, and health care administration.

(b)  The Sorry Works! pilot program is established under the oversight of the commissioner.  Any hospital that voluntarily chooses to participate shall be eligible for the program beginning on January 1, 2007.  Hospitals may participate only with the approval of the hospital administration and the hospital’s medical staff. 

(c)(1)  Under the program, participating hospitals and physicians shall promptly acknowledge and apologize for mistakes in patient care that result in harm and promptly offer fair settlements.  If a settlement is accepted, further litigation with respect to the mistake shall be prohibited. 

(2)  Participating hospitals shall provide to the patient written notification of the patient’s right to legal counsel.  The notification shall include an affirmative declaration that no action was taken to dissuade a patient from using counsel for the negotiations. 

(3)  A communication between parties engaged in negotiation pursuant to this program is privileged and is not subject to discovery or admissible in evidence in any civil or administrative proceeding.  Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in negotiations pursuant to this program. 

(4)  Participation in Sorry Works! shall toll the applicable statute of limitations in cases where such negotiations are unsuccessful.  The commissioner shall establish guidelines for determining when negotiations under the Sorry Works! program begin and end for purposes of tolling the statute of limitations.

(d)  Participating hospitals shall report to the department their total costs for medical malpractice verdicts, settlements, and defense litigation for the preceding five years to enable the department to determine average costs for that hospital during that period.  The department shall develop standards and protocols to compare costs for cases handled by traditional means and cases handled under the Sorry Works! program for purposes of reporting to the general assembly as to the financial impact of the program.

(e)  The commissioner shall establish criteria for the program, including the criteria under which hospitals shall be selected to participate.  A program participant may withdraw from the program by notifying the commissioner.  Any mistakes in patient care that result in harm that occurred prior to the program participant notifying the commissioner shall continue to be subject to this section and the terms of the program.

(f)  In consultation with hospitals, providers, and other interested parties, the department shall adopt rules to implement the pilot program no later than October 1, 2006.

(g)  The department shall initiate a dialogue with insurers and encourage them to participate in the Sorry Works! pilot program with any hospital that is willing to commit to the program.  The department shall use all of the methods at its disposal to gain the participation of insurers necessary to enable hospitals to participate and the program to be implemented.  

(h)  The department shall report to the general assembly on or before January 15, 2009 on the implementation and administration of the program, including the value of extending the program and any recommendations to facilitate participation.

(i)  This pilot program shall sunset on June 30, 2009.

House Proposal of Amendment

S. 256

An act relating to sexual exploitation of an inmate.

The House proposes to the Senate to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  13 V.S.A. chapter 89 is added to read:

Chapter 89.  Sexual Exploitation

§ 4201.  DEFINITION

As used in this chapter, “sexual act” shall have the same meaning as provided in section 3251 of this title.

§ 4202.  SEXUAL EXPLOITATION OF AN INMATE

(a)  No correctional employee, contractor, or other person providing services to offenders on behalf of the department of corrections or pursuant to a court order or in accordance with a condition of parole, probation, supervised community sentence, or furlough shall engage in a sexual act with a person who the employee, contractor, or other person providing services knows:

(1)  is confined to a correctional facility; or

(2)  is being supervised by the department of corrections while on parole, probation, supervised community sentence, or furlough, where the employee, contractor, or other service provider is currently engaged in a direct supervisory relationship with the person being supervised.  For purposes of this subdivision, a person is engaged in a direct supervisory relationship with a supervisee if the supervisee is assigned to the caseload of that person.

(b)  A person who violates subsection (a) of this section shall be imprisoned for not more than five years or fined not more than $10,000.00, or both.

§ 4203.  SEXUAL EXPLOITATION OF A STUDENT

(a)  As used in this section:

(1)  “Employee” means a person who has direct supervisory or programmatic contact with students as a result of the person’s work for the program or school in which the student is enrolled or in attendance and shall include persons employed by the school district or program, volunteers, contractors and their employees, and persons employed by the supervisory union who work in the school in which the student is enrolled or in attendance.

(2)  “Independent school,” “supervisory union,” and “school district” shall have the meanings defined in 16 V.S.A. § 11. 

(b)  No person who is an employee of a school district or an independent school shall engage in a sexual act with a student under the age of 18 who is enrolled in or attending a program in the same public school or independent school where the employee is working. 

(c)  A person who violates subsection (b) of this section shall be imprisoned for not more than five years or fined not more than $10,000.00, or both.

§ 4204.  SEXUAL EXPLOITATION OF A CHILD BY A MEMBER OF THE CLERGY

(a)  As used in this section, “member of the clergy” means a priest, rabbi, clergy member, ordained or licensed minister, leader of any church or religious body, accredited Christian Science practitioner, person performing official duties on behalf of a church or religious body that are recognized as the duties of a priest, rabbi, clergy, nun, brother, ordained or licensed minister, leader of any church or religious body, or accredited Christian Science practitioner.

(b)  No person who is a member of the clergy shall engage in a sexual act with a child under the age of 18 who is either a member of such person’s congregation or under the supervision of the person.

(c)  A person who violates subsection (b) of this section shall be imprisoned for not more than five years or fined not more than $10,000.00, or both.

§ 4205.  SEXUAL EXPLOITATION OF A PATIENT

(a)  As used in this section, “health care provider” means an individual licensed or certified or authorized by law to provide professional health care service in this state to an individual during that individual’s medical care, treatment, or confinement.

(b)  No person who is a health care provider shall engage in a sexual act with a child under the age of 18 who is a patient of the provider.

(c)  A person who violates subsection (b) of this section shall be imprisoned for not more than five years or fined not more than $10,000.00, or both.

§ 4206.  SEXUAL EXPLOITATION OF CHILD BY PERSON IN POSITION 

  OF AUTHORITY OVER CHILD

(a)  No adult who is 18 years old or older shall engage in a sexual act with a child under the age of 18 if the person holds a position of official adult authority over the child.

(b)  A person who violates this section shall be imprisoned for not more than five years or fined not more than $10,000.00, or both.

§ 4207.  CONSTRUCTION

The criminal statutes provided for in this chapter shall be in addition to, not in lieu of, the criminal statutes in chapter 72 of this title.  The provisions of this chapter do not limit or restrict prosecutions for sexual assault or aggravated sexual assault.

Sec. 2.  28 V.S.A. § 853 is amended to read:

§ 853.  PUNISHMENT; MAINTENANCE OF RECORDS; RECOMMENDATION OF TRANSFER

(a)(1)  Except in serious cases as provided in subdivision (2) of this subsection, punishment for a breach of the rules and regulations of the facility shall consist of deprivation of privileges.  In cases of

(2)  Serious breaches of the rules and regulations shall include assault, escape, or attempt to escape, or other serious breach of the rules,.  In cases involving a serious breach, the disciplinary committee may recommend to the supervising officer of the facility, and he who may then order, other forms of discipline in addition to or as substitution for a loss of privileges, that any portion of an inmate’s reduction of term for good behavior be forfeited or withheld in accordance with section 812 of this title.  In cases involving breach of the rules and regulations of the facility that result.  If the serious breach results in damage to state-owned property, the disciplinary committee may fix the an amount of restitution or reparation, which shall not exceed an amount the offender inmate can or will be able to pay, and shall fix the manner of performance.  Other forms of discipline for a serious breach of the rules may include:

(A)  Recommendation by the disciplinary committee and by the supervising officer also may be made to the commissioner that the inmate be transferred to another facility. 

(B)  For serious breach of the rules the disciplinary committee Segregation, in accordance with the regulations of the department, may also recommend, and the supervising officer may order, that an inmate be confined in a cell or room, apart from the accommodations provided for inmates who are participating in programs of the facility.; provided:

(1)(i)  The period of such confinement segregation shall not exceed thirty 30 days consecutively;

(2)(ii)  The inmate shall be supplied with a sufficient quantity of wholesome and nutritious food, which shall be of the same quantity and nutritional quality as that provided to the general population of inmates at the facility;

(3)(iii)  Adequate sanitary and other conditions required for the health of the inmate shall be maintained; and

(4)(iv)  The supervising officer of the facility shall comply with any recommendation that may be made by the institution’s facility’s physician for measures with respect to dietary needs or conditions of confinement segregation of each inmate required to maintain the health of the inmate.

(b)  No cruel, inhuman, or corporal punishment shall be used on any inmate, nor is the use of force on any inmate justifiable except as provided by law.

(c)  The supervising officer of any facility shall maintain a record of all breaches of rules, of the disposition of each case, and of the punishment, if any, for each breach.  Each breach of the rules by an inmate shall be entered in the file of the inmate, together with the disposition or punishment therefor.

Sec. 3.  28 V.S.A. § 102(c)(19) is amended to read:

(19)  If a treaty in effect between the United States and Canada a foreign country provides for the transfer or exchange of a convicted and sentenced offender to the country of which the offender is a citizen or national, the commissioner may, with the written consent of such offender obtained only after the opportunity to consult with counsel, and in accordance with the terms of the treaty, consent to the transfer or exchange of any such offender and take any other action necessary to initiate the participation of the state in the treaty.

Sec. 4.  29 V.S.A. § 701a is amended to read:

§ 701a.  SOLITARY CONFINEMENT; SEGREGATION OF INMATES WITH A SERIOUS MENTAL HEALTH DISORDER ILLNESS

(a)  The commissioner shall promulgate adopt rules pursuant to chapter 25 of Title 3 regarding the classification, treatment, and maximum length of stay in solitary confinement segregation of an inmate with a serious mental illness as defined in subdivision 906(1) of this title; provided that the length of stay in segregation for an inmate with a serious mental illness:

(1)  Shall not exceed 15 days if the inmate is segregated for disciplinary reasons.

(2)  Shall not exceed 30 days if the inmate requested the segregation, except that the inmate may remain segregated for successive 30-day periods following assessment by a qualified mental health professional and approval of a physician for each extension.

(3)  Shall not exceed 30 days if the inmate is segregated for any reason other than the reasons set forth in subdivision (1) or (2) of this subsection, except that the inmate may remain segregated for successive 30-day periods following a due process hearing for each extension, which shall include assessment by a qualified mental health professional and approval of a physician.

(b)  On or before October 1, 2001, the agency of human services, department of corrections, shall enact an emergency rule implementing the directive of this section.  The emergency rule shall specifically address the obligations and responsibilities of the department of corrections relative to the solitary confinement of a male or female inmate with a serious mental illness as defined in section 906 of this title.  For purposes of this title, and despite other names this concept has been given in the past or may be given in the future, “segregation” means a form of separation from the general population which may or may not include placement in a single occupancy cell and which is used for disciplinary, administrative, or other reasons.

(c)  On or before the 15th day of each month, the department’s health services director shall provide to the joint legislative corrections oversight committee a report that, while protecting inmate confidentiality, lists each inmate who was in segregation during the preceding month by a unique indicator and identifies the reason the inmate was placed in segregation, the length of the inmate’s stay in segregation, whether the inmate has a serious mental illness, or is otherwise on the department's mental health roster, and, if so, the nature of the mental illness.  The report shall also indicate any incident of self harm or attempted suicide by inmates in segregation.  The committee chair shall ensure that a copy of the report is forwarded to the Vermont defender general and the executive director of Vermont Protection and Advocacy, Inc. on a monthly basis.

Sec. 5.  JOINT LEGISLATIVE CORRECTIONS OVERSIGHT COMMITTEE

During the 2006 interim, the joint legislative corrections oversight committee shall explore the current law and practices concerning the segregation of inmates, including inmates with a cognitive impairment and inmates with a serious mental illness or who are otherwise on the mental health roster.  The committee’s work shall include review of the process and standards by which the department, through hearings and other means, determines whether placement in segregation is appropriate for inmates with a serious mental illness, the qualifications of hearing officers, and the due process protections afforded by the hearings.  The committee shall also consider the incidence of self harm and attempted suicide by segregated inmates and the identification of alternative management techniques.  The committee shall also explore the current law and practices concerning transfers of inmates with mental conditions to out-of-state facilities.  On or before January 15, 2007, the committee shall present its analysis together with any related proposals for legislation to the house and senate committees on judiciary and the house committee on institutions. 

and, that upon passage, the title of the bill shall read:  “AN ACT RELATING TO SEXUAL EXPLOITATION AND TO ISSUES CONCERNING THE DEPARTMENT OF CORRECTIONS”

House Proposal of Amendment to Senate Proposal of Amendment

H. 677

An act relating to a standards board and licensing hearing panels for professional educators.

The House proposes to the Senate to amend the proposal of amendment as follows:

In Sec. 2, 16  V.S.A. §1693(b) by striking the subsection in its entirety and inserting in lieu thereof a new subsection (b) to read:

(b)  Appointment and qualifications.  All members of the standards board shall be appointed by the governor for terms of three years which shall begin July 1 of the year of appointment.  No person shall be eligible for more than one sequential reappointment.  The governor shall appoint a replacement to fill any vacancy on the standards board for the remainder of the term.  The governor shall assure appointments are consistent with the following requirements:

* * *

ORDERED TO LIE

S. 112

An act relating to the practice of optometry.

PENDING ACTION:  Second reading of the bill.

S. 157

An act relating to rulemaking for Vermont origin.

PENDING ACTION:  Second reading of the bill.

S. 315

An act relating to creation of the Vermont Land Bank program.

Pending Action:  Second Reading of the bill.

S. 316

An act to accelerate access to broadband services throughout Vermont.

Pending Action:  Second Reading of the bill.

S. 319

An act relating to expanding the scope of the net metering program.

Pending Action:  Second Reading of the bill.

H. 480

An act relating to precursor drugs of methamphetamine.

Pending Action:  Second Reading of the bill.

 

CONFIRMATIONS

     The following appointments will be considered by the Senate, as a group, under suspension of the Rules, as moved by the President pro tempore, for confirmation together and without debate, by consent thereby given by the Senate.  However, upon request of any senator, any appointment may be singled out and acted upon separately by the Senate, with consideration given to the report of the Committee to which the appointment was referred, and with full debate; and further, all appointments for the positions of Secretaries of Agencies, Commissioners of Departments, Judges, Magistrates, and members of the Public Service Board shall be fully and separately acted upon.

     Robert Alberts of Bridport – Member of the Vermont Housing Finance Agency – By Sen. Ayer for the Committee on Finance.  (2/10)

     John Valente of Rutland – Member of the Vermont Municipal Bond Bank – By Sen. Maynard for the Committee on Finance.  (2/24)

     Paul Andrew of South Burlington – Member of the Vermont Municipal Bond Bank – By Sen. Ayer for the Committee on Finance.  (3/15)

     Thomas James of Essex Junction – Member of the State Board of Education – By Sen. Collins for the Committee on Education.  (3/15)

     Dagyne Canney of North Clarendon – Member of the Vermont Housing Finance Agency – By Sen. Maynard for the Committee on Finance.  (3/27)

     John Hall of St. Johnsbury – Commissioner of the Department of Housing and Community Affairs – By Sen. Gander for the Committee on Economic Development, Housing and General Affairs.  (4/11)

     Patricia McDonald of Berlin – Chair of the Vermont Employment Security Board (November 15, 2004-February 28, 2005)– By Sen. Miller for  the Committee on Economic Development, Housing and General Affairs.  (4/12)

     Patricia McDonald of Berlin – Chair of the Vermont Employment Security Board (March 1, 2005-February 28, 2007) – By Sen. Miller for  the Committee on Economic Development, Housing and General Affairs.  (4/12)

     Patricia McDonald of Berlin – Commissioner of the Department of Labor – By Sen. Miller for the Committee on Economic Development, Housing and General Affairs.  (4/12)

     Bruce Hyde of Granville – Commissioner of the Department of Tourism and Marketing – By Sen. Miller for the Committee on Economic Development, Housing and General Affairs.  (4/12)

     Michael A. Welch of St. Johnsbury – Member of the Valuation Appeals Board – By Sen. Ayer for the Committee on Finance.  (4/13)

     Sonia D. Alexander of Wilmington – Member of the Valuation Appeals Board – By Sen. Ayer for the Committee on Finance.  (4/13)

     Dawn Bugbee of St. Albans – Member of the Vermont Educational and Health Buildings Finance Agency Board – By Sen. Ayer for the Committee on Finance.  (4/13)

     Kevin Dorn of Essex Junction – Secretary of the Agency of Commerce and Community Development – By Sen. Illuzzi for the Committee on Economic Development, Housing and General Affairs.  (4/13)

     Michael W. Quinn of Essex Junction – Commissioner of the Department of Economic Development – By Sen. Miller for the Committee on Economic Development, Housing and General Affairs.  (4/13)

Eryn Brownlee of Montpelier – Member of the Children and Family Council for Prevention Programs – By Sen. Lyons for the Committee on Health and Welfare.  (4/14)

Lynn Marie Bundy of Montpelier – Member of the Children and Family Council for Prevention Programs – By Sen. Lyons for the Committee on Health and Welfare.  (4/14)

Suzanne Masland of Thetford – Member of the Children and Family Council for Prevention Programs – By Sen. Lyons for the Committee on Health and Welfare.  (4/14)

Robert Sheil of Montpelier – Member of the Children and Family Council for Prevention Programs – By Sen. Lyons for the Committee on Health and Welfare.  (4/14)

William B. LaWare of Williston – Member of the Children and Family Council for Prevention Programs – By Sen. Lyons for the Committee on Health and Welfare.  (4/14)

Frank Mazur of South Burlington – Member of the Public Oversight Commission – By Sen. Lyons for the Committee on Health and Welfare.  (4/14)

Gregory MacDonald of East Montpelier – Member of the Vermont Tobacco Evaluation and Review Board – By Sen. Lyons for the Committee on Health and Welfare.  (4/14)

Coleen Krauss of Montpelier – Member of the Vermont Tobacco Evaluation and Review Board – By Sen. Lyons for the Committee on Health and Welfare.  (4/14)

Gregory Peters of Shelburne – Member of the Public Oversight Commission – By Sen. Lyons for the Committee on Health and Welfare.  (4/14)

Phyllis Soule of Fairfax – Member of the Human Services Board – By Sen. Kittell for the Committee on Health and Welfare.  (4/14)

Mary Jane Wasik of Pittsford – Member of the Human Services Board – By Sen. Mullin for the Committee on Health and Welfare.  (4/14)

Hillary Roper of Stowe – Member of the Public Oversight Commission – By Sen. Mullin for the Committee on Health and Welfare.  (4/14)

David M. Anderson of Tunbridge – Member of the Public Oversight Commission – By Sen. Mullin for the Committee on Health and Welfare.  (4/14)

John Lindley, III of Montpelier – Member of the Public Oversight Commission – By Sen. Mullin for the Committee on Health and Welfare.  (4/14)

Kitty LaBarge of South Hero – Member of the Public Oversight Commission – By Sen. Mullin for the Committee on Health and Welfare.  (4/14)

Ezekiel S. Cross of Shaftsbury – Member of the Board of Medical Practice – By Sen. Mullin for the Committee on Health and Welfare.  (4/14)

Sigrid Solomon of Bennington – Member of the State Board of Education – By Sen. Doyle for the Committee on Education.  (4/25)

Jennifer Poehlmann of Richmond – Member of the Children and Family Council for Prevention Programs – By Sen. Leddy for the Committee on Health and Welfare.  (4/25)

Stephen R. Dale of Montpelier – Commissioner of the Department of Children and Families – By Sen. Leddy for the Committee on Health and Welfare.  (4/25)

Eileen Dickinson of St. Albans – Member of the Public Oversight Commission – By Sen. Kittell for the Committee on Health and Welfare.  (4/25)

REPORTS ON FILE

Pursuant to the provisions of 2 V.S.A. §20(c), one (1) copy of the following reports is on file in the office of the Secretary of the Senate:

114.   Alternatives to Incarceration for Women Offenders Report.  (Agency of Human Services, Department of Corrections)  (April 2006).