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Journal of the House

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TUESDAY, JANUARY 3, 2006

At ten o'clock in the forenoon the Speaker called the House to order.

Devotional Exercises

Devotional exercises were conducted by Speaker Gaye Symington.

Pledge of Allegiance

Page Elizabeth Kane of Swanton led the House in the Pledge of Allegiance.

Communication from the Governor

“November 3, 2005

The Honorable Gaye R. Symington

324 Browns Trace

Jericho, VT 05465

Dear Speaker Symington,

I have the honor to inform you that I have appointed Stephen B. Dates of Shelburne to serve the unexpired term of Representative George Schiavone serving House District Chittenden 5-2.

Sincerely,

s/s/ James H. Douglas

Governor

JHD/ms

cc: Deborah Markowitz, Secretary of State

Donald Milne, Clerk of the House”

New Member Seated

The newly appointed member, Stephen B. Dates of Shelburne, having taken and subscribed the oath, administered by the Clerk, as required by the Constitution and laws of the State, was conducted to his seat by the Doorkeeper.

Communication from the Governor

“November 15, 2005

The Honorable Gaye R. Symington

324 Browns Trace

Jericho, VT 05465

Dear Speaker Symington,

I have the honor to inform you that I have appointed Joseph Acinapura of Brandon to serve the unexpired term of Representative Bob Wood serving House District Rutland 7-1.

Sincerely,

s/s/ James H. Douglas

Governor

JHD/ms

cc: Deborah Markowitz, Secretary of State

Donald Milne, Clerk of the House”

New Member Seated

The newly appointed member, Joseph Acinapura of Brandon, having taken and subscribed the oath, administered by the Clerk, as required by the Constitution and laws of the State, was conducted to his seat by the Doorkeeper.

Communication from Clerk

“January 3, 2006

Honorable Gaye Symington

Speaker of the House

Dear Madam Speaker:

I have the honor to inform you and the members of the House that I have appointed BetsyAnn Wrask of Stowe as second assistant Clerk.

Sincerely,

/s/ Donald G. Milne

Clerk of the House

cmc/DGM”

Oath Administered to Second Assistant Clerk

The oath was administered to BetsyAnn Wrask, the Second Assistant Clerk who thereupon entered upon the discharge of her duties.

House Bills Introduced

House bills of the following titles were severally introduced. Pending first reading of the bills, on motion of Rep. Flory of Pittsford, the rules were suspended and the bills were read the first time by number and referred as follows:

H. 550

By Rep. Kainen of Hartford,

An act relating to operating a motor vehicle while under the influence of alcohol or drugs;

To the committee on Judiciary.

H. 551

By Rep. Parent of St. Albans City,

An act relating to a wildlife disease researcher in the Department of Fish and Wildlife;

To the committee on Fish, Wildlife and Water Resources.

H. 552

By Rep. Parent of St. Albans City,

An act relating to a prohibition against feeding of wild deer;

To the committee on Fish, Wildlife and Water Resources.

H. 553

By Rep. Condon of Colchester,

An act relating to a cap on education property tax revenues and statewide negotiation of health benefits for teachers;

To the committee on Education

H. 554

By Reps. Adams of Hartland and Deen of Westminster,

An act relating to the classification of state waters;

To the committee on Fish, Wildlife and Water Resources

H. 555

By Rep. Bohi of Hartford,

An act relating to the establishment of fire districts;

To the committee on Government Operations.

H. 556

By Rep. Hutchinson of Randolph (by request),

An act relating to fluoridation of public water systems;

To the committee on Human Services.

H. 557

By Rep. Hutchinson of Randolph,

An act relating to a permit for commercial use of fish and wildlife access areas;

To the committee on Fish, Wildlife and Water Resources.

H. 558

By Rep. Hosford of Waitsfield,

An act relating to income tax exemption for social security payments;

To the committee on Ways and Means.

H. 559

By Rep. O’Donnell of Vernon,

An act relating to low income elderly homestead exemption;

To the committee on Ways and Means.

H. 560

By Rep. Hutchinson of Randolph,

An act relating to sales tax exemption for health club admission;

To the committee on Ways and Means.

H. 561

By Rep. Rodgers of Glover,

An act relating to the alcohol content of beer;

To the committee on General, Housing and Military Affairs.

H. 562

By Rep. Condon of Colchester,

An act relating to motor vehicle retail installment sales contracts;

To the committee on Commerce.

H. 563

By Rep. Nuovo of Middlebury,

An act relating to restricting the use of cellular phones while operating a motor vehicle;

To the committee on Transportation.

Bill Referred to Committee on Appropriations

H. 249

House bill, entitled

An act relating to wood products income tax credit and education property tax limitation;

Appearing on the Calendar, carrying an appropriation, under rule 35a, was referred to the committee on Appropriations.

Bill Referred to Committee on Appropriations

S. 165

Senate bill, entitled

An act relating to economic advancement tax incentives and economic development;

Appearing on the Calendar, carrying an appropriation, under rule 35a, was referred to the committee on Appropriations.

Message from the Senate No. 1

A message was received from the Senate by Mr. Marshall, its Assistant Secretary, as follows:

Madam Speaker:

I am directed to inform the House that the Senate has on its part adopted joint resolutions of the following titles:

J.R.S. 42. Joint resolution to provide for a Joint Assembly to receive the State-of-the-State message from the Governor.

J.R.S. 43. Joint resolution to provide for a Joint Assembly to hear the budget message of the Governor.

J.R.S. 44. Joint resolution relating to Town Meeting adjournment.

In the adoption of which the concurrence of the House is requested.

Joint Resolution Adopted in Concurrence

J.R.S. 42

Joint resolution, entitled

Joint resolution to provide for a Joint Assembly to receive the State-of-the-State message from the Governor.

Resolved by the Senate and House of Representatives:

That the two Houses meet in Joint Assembly on Thursday, January 5, 2006, at two o’clock in the afternoon to receive the State-of-the-State message from the Governor.

Was taken up read and adopted in concurrence.

Joint Resolution Adopted in Concurrence

J.R.S. 43

Joint resolution, entitled

Joint resolution to provide for a Joint Assembly to hear the budget message of the Governor.

Resolved by the Senate and House of Representatives:

That the two Houses meet in Joint Assembly on Tuesday, January 17, 2006, at two o'clock in the afternoon to receive the budget message of the Governor.

Was taken up read and adopted in concurrence.

Remarks Journalized

On motion of Rep. Westman of Cambridge, the following remarks by Rep. Errecart of Shelburne were ordered printed in the Journal:

“Madam Speaker:

I rise first to extend a very warm welcome to the new member from Shelburne, Rep. Dates. Rep. Dates and I spent far more time together than we ever wanted as members of Shelburne’s Ad Hoc Velco Committee. After working with Rep. Dates for a power line solution that is good for the Town of Shelburne and the State of Vermont, I can assure you that he is hard working, smart, reasonable, and thoughtful, and is a strong addition to this body.

Second, I rise to express my regret at the departure of Rep. Schiavone. Rep. Schiavone has worked tirelessly to improve Vermont. Most of us are familiar with Rep. Schiavone’s hard work on a number of legislative committees. Most of us know far less about his other projects. He has served on Shelburne’s Board of Civil Authority, on the Shelburne and Champlain Valley Union High School Boards, as Chair of the Northern Vermont Red Cross and Chair of the Medical Center Associates. He’s serving now as the Chair of the Board of the Burlington Emergency Shelter.

I owe a huge debt of gratitude to Rep. Schiavone and his wife, Linda. They have been terrific mentors, first with helping me to figure out and execute a plan to get elected, and second with helping me not to make too many egregious mistakes in serving in this body. I doubt that I would be serving here today but for the Schiavones.

I will greatly miss Rep. Schiavone’s dedication, grace, and good humor. I hope we have all learned from his friendly and courteous legislative demeanor. He leaves this body, Shelburne and Vermont all better places because of his public service.”

Remarks Journalized

On motion of Rep. Emmons of Springfield, the following remarks by Rep. O’Donnell of Vernon were ordered printed in the Journal:

“Madam Speaker:

I would like to take a moment to remember a friend who dedicated his life to this body.

Forever we will see the image of Rep. Wood in the halls of this building, walking down the ramp in his corduroy jacket with his maroon pants stuck in the top of his boot.

I ask that you keep him in your thoughts and prayers and always remember what he stood for. He loved us all and the great state of Vermont that he served so well.”

Remarks Journalized

On motion of Rep. Pillsbury of Brattleboro, the following remarks by Rep. Emmons of Springfield were ordered printed in the Journal:

“Madam Speaker:

I rise to say a few words for the member from Brandon Rep. Bob Wood. As many of you know I was Rep Wood’s Vice Chair for 8 years. We are from the opposite ends of the political spectrum but we worked well together and with respect for each other. Bob worked with many of us in this building and I must say I learned a lot about issues and life from Bob. We worked together in dealing with the other body, and at times in dealing with many of you here in this body. His passing has created a large void in this General Assembly, and a void within myself. I too see him in the hallways and in the Committee room. In fact, this morning upon entering the House Institutions Committee I saw a plaque with the green sneakers that the Committee had made up for Bob last year. Bob used to always like to kid about those sneakers. In fact they were given to him by the member from Burlington Rep. John Tracy when John was a member of the Institutions Committee. John and Bob had a very close relationship and those sneakers were given to Bob as a tribute.

Many times over the past year I have wanted to seek Bob’s advice and been unable to and felt that emptiness. Instead, I think of how much Bob loved Vermont and worked hard for our way of life. I want to take this time to say thank you; thank you Bob for all the time and the work you gave to our state of Vermont and that you are missed.”

Committee Appointments Announced

The Speaker announced the following committee appointments:

Rep. Acinapura of Brandon to the committee on Commerce

Rep. Ancel of Calais to the committee on Ways and Means

Rep. Copeland-Hanzas to the committee on Health Care

Rep. Dates of Shelburne to the committee on Government Operations

Rep. Green of Berlin to the committee on Agriculture

Rep. Metzger of Milton to the committee on Human Services

Committee Relieved of Consideration

and Bill Committed to Other Committee

H. 456

Rep. McLaughlin of Royalton moved that the committee on Education be relieved of House bill, entitled

An act relating to use of Vermont products and nutrition education in schools;

And that the bill be committed to the committee on Agriculture, which was agreed to.

Bill Recommitted

H. 373

House bill, entitled

An act relating to stalking;

Appearing on the Calendar for action, was taken up and pending the reading of the report of the committee on Judiciary, on motion of Rep. Lippert of Hinesburg, the bill was recommitted to the committee on Judiciary.

Bill Read Second Time; Third Reading Ordered

H. 548

Rep. Parent of St. Albans spoke for the committee on Fish, Wildlife and Water Resources.

House bill entitled

An act relating to personal watercraft safety;

Having appeared on the Calendar one day for notice, was taken up, read the second time and third reading ordered.

Bill Read Second Time; Consideration Interrupted by Recess

S. 164

Rep. Bohi of Hartford, for the committee on Government Operations, to which had been referred Senate bill, entitled

An act relating to elections and voter registration;

Reported in favor of its passage in concurrence with recommendation of proposal of amendment as follows:

First: In Sec. 1, § 2124 of 17 V.S.A., by striking subdivision 2124(a)(5) up until the old period, by striking “; and” at the end of subdivision 2124(a)(4), and by adding the word “and” following the semi-colon in subdivision 2124(a)(3)

Second: In Sec. 2, § 2144(a) of 17 V.S.A, by striking the second sentence and inserting in lieu thereof the following:

“The town clerk’s office in each municipality shall be kept open on the second Monday preceding the day of the election from no later than ~~10:00 a.m.~~ 3:00 p.m. until ~~12:00 noon,~~ 5:00 p.m. or for the last two hours of the normal business day on that Monday for the purpose of receiving applications for addition to the checklist.”

Third: In Sec. 3, § 2144a of 17 V.S.A., subdivision (4), in the third sentence, by inserting after the phrase “to produce the required information” the following “or if an election official questions the legitimacy of the information presented by the person seeking to register at the poll on election day”

Fourth: In Sec. 5, § 2546 of 17 V.S.A., subsection (b), in the third sentence, by striking the term “precisely” where it appears and adding “previously”

Fifth: In Sec. 7, by striking “2007” where it appears and adding “2009”

Sixth: By striking Sec. 8 in its entirety and inserting in lieu thereof:

Sec. 8. EFFECTIVE DATE

(a) This section, Sec. 1, and Secs. 4 through 6 shall take effect upon passage.

(b) Secs. 2 (deadline for voter application), 3 (same-day voter registration), and 7 (survey of elections expenses for same-day voter registration) shall take effect January 1, 2007.

Having appeared on the Calendar one day for notice, was taken up and read the second time. Pending the question, Shall the House propose to the Senate to amend the bill as recommended by the committee on Government Operations?

Recess

At eleven o’clock and twenty minutes in the forenoon, the Speaker declared a recess until one o’clock in the afternoon.

Afternoon

At one o’clock and thirty minutes in the afternoon, the Speaker called the House to order.

Consideration Resumed; Action Postponed

S. 164

Consideration resumed on Senate bill entitled

An act relating to elections and voter registration;

Pending the question, Shall the House propose to the Senate to amend the bill as recommended by the committee on Government Operations? Rep. Bohi of Hartford moved to postpone action until Thursday, March 16, 2006.

Consideration Interrupted by Recess

S. 18

Rep. Zuckerman of Burlington, for the committee on Agriculture, to which had been referred Senate bill, entitled

An act relating to liability resulting from the use of genetically engineered seeds and plant parts;

Reported in favor of its passage in concurrence with proposal of amendment as follows:

By striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1. SHORT TITLE

This act shall be known and may be cited as the Farmer Protection Act.

Sec. 2. 6 V.S.A. chapter 35, subchapter 3 is added to read:

Subchapter 3. Liability Resulting from the Use of

Genetically Engineered Seeds and Plant Parts

§ 650. DEFINITIONS

As used in this subchapter, “injury” includes:

(1) loss of any price premium that would have accrued to a farmer by contract or other marketing arrangement or that would have been otherwise reasonably available to the person through ordinary commercial channels;

(2) any reasonable additional transportation, storage, handling, or related charges or costs incurred by a farmer that occurred because of the use of genetically engineered seeds or plant parts;

(3) any judgment, charge, or penalty for which the farmer of nongenetically engineered products is liable because of breach of contract, including loss of organic certification.

§ 651. LIABILITY FOR DAMAGES RESULTING FROM GENETICALLY ENGINEERED CROPS

(a) The buyer of genetically engineered seeds or plant parts may recover damages for any injury proximately caused by the use of genetically engineered seeds or plant parts.

(b) The manufacturer of genetically engineered seeds or plant parts may be liable to any person for an injury proximately caused by the use by any person of genetically engineered seeds or plant parts.

(c) For the purposes of this section, the buyer of genetically engineered seeds or plant parts is a consumer, and genetically engineered seeds or plant parts are consumer goods.

(d) A farmer who is not in breach of contract for the purchase or use of genetically engineered seeds or plant parts and unknowingly comes into possession or unknowingly uses such seeds or plant parts as a result of natural reproduction, cross-pollination, or other alteration shall not be liable for any injuries, claims, losses, and expense, including attorney’s fees, caused by the use of a genetically engineered seed or plant part.

§ 652. SEED CONTRACTS GOVERNED BY VERMONT LAW

(a) A seed contract for the purchase of seeds or plant parts in Vermont is governed by the laws of Vermont. If a seed contract purports to choose the laws of a jurisdiction other than Vermont to govern the contract, such provisions of the contract are void and unenforceable.

(b) The venue for an action under this subchapter shall be in the county in which the injury is alleged to have occurred.

§ 653. LIMITATION OF ACTION

An action brought pursuant to this subchapter shall be brought within three years after the cause of action accrues and not after.

Sec. 3. SEVERABILITY

If any provision of this act or its application to any person or circumstance is held invalid or in violation of the constitution or laws of the United States, the invalidity or the violation shall not affect other provisions of this act which can be given effect without the invalid provision or application, and to this end, the provisions of this act are severable.

Rep. Jewett of Ripton, for the committee on Judiciary, recommended that the House propose to the Senate that the bill be amended by striking all after enacting clause and inserting in lieu thereof the following:

Sec. 1. FINDINGS; PURPOSE

(a) Vermont’s farmers and agriculture are vitally important to sustaining the economy and maintaining the traditional values of our state. Building on our long history of cooperation among farmers and protecting the viability of all types of farming are critical to keeping agriculture a healthy part of life in Vermont.

(b) In balancing the interests of all farmers, it is important to ensure that they retain the greatest possible flexibility as they make decisions as to how best to run their farms. They also need as much protection as possible against having liability unfairly shifted to them for the actions of others.

(c) Vermont law has recognized the economic and cultural importance of agriculture. Vermont has defined farmers as consumers under our Uniform Commercial Code and Consumer Fraud Act, and federal case law has allowed farmers to be compensated for economic loss caused by the wrongful action of others. Vermont courts also furnish fair forums for resolving agricultural disputes which may arise in this state. These protections would be jeopardized if anyone selling products to Vermont farmers is able to compel disputes with those farmers to be heard in other states, under another state’s laws, and before non-Vermont juries.

Sec. 2. INTENT

It is the intent of the general assembly to:

(1) codify farmers’ ability to recover economic losses caused by the wrongful action of others;

(2) confirm farmers’ status as consumers with all the protections that provides;

(3) provide Vermont farmers with a Vermont forum and choice of law when legal disputes arise.

Sec. 3. 6 V.S.A. chapter 210 is added to read:

Chapter 210. Farmers and Agricultural Goods

Liability Actions

§ 4715. DAMAGES IN ACTIONS

In any action in which liability for damages against a manufacturer of goods for agricultural use has been established in this state, the damages recoverable by a prevailing party may include economic losses.

§ 4716. FARMERS ARE CONSUMERS

(a) Vermont farmers are consumers for the purpose of actions in product liability.

(b) Goods purchased by farmers for agricultural use are consumer goods.

§ 4717. CHOICE OF LAW

If a contract for agricultural goods which are used in Vermont purports to choose the laws of a jurisdiction other than Vermont to govern the contract, such provisions of the contract are void and unenforceable. Any disputes involving such contracts shall be decided using the law of Vermont.

§ 4718. VENUE

The venue for an action relating to goods for agricultural use in Vermont shall be the Vermont county in which one of the parties resides. If neither party resides in the state, the venue may be any county in Vermont.

§ 4719. PROVISIONS MAY NOT BE VARIED

The provisions of this chapter may not be varied or waived by agreement of the parties.

Sec. 4. SEVERABILITY

If any provision of this act or its application to any person or circumstance is held invalid or in violation of the constitution or laws of the United States or the state of Vermont, the invalidity or the violation shall not affect other provisions of this act which can be given effect without the invalid provision or application, and to this end, the provisions of this act are severable.

and that after passage, the title of the bill be changed to read as follows: “AN ACT RELATING TO FARMERS AND AGRICULTURAL GOODS LIABILITY ACTIONS”

Recess

At one o’clock and forty minutes in the afternoon, the Speaker declared a recess until two o’clock and thirty minutes in the afternoon.

At two o’clock and forty-five minutes in the afternoon, the Speaker called the House to order.

Consideration Resumed;

Recommendation of Proposal of Amendment Agreed to

and Third reading Ordered

S. 18

Consideration resumed on Senate bill, entitled

An act relating to liability resulting from the use of genetically engineered seeds and plant parts;

Rep. Jewett of Ripton moved to substitute the report of the committee on Judiciary for the report of the committee on Agriculture, which was agreed to.

Pending the question, Shall the House propose to the Senate to amend the bill as recommended by the committee on Judiciary? Reps. Klein of East Montpelier, Randall of Troy, Deen of Westminster, Dowland of Holland, Emmons of Springfield, Haas of Rochester, Kilmartin of Newport City, Kitzmiller of Montpelier, Louras of Rutland City, Martin of Springfield, McLaughlin of Royalton, Obuchowski of Rockingham and Pillsbury of Brattleboro, moved to substitute an amendment for that offered by the committee on Judiciary by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1. SHORT TITLE

This act shall be known and may be cited as the Farmer Protection Act.

Sec. 2. FINDINGS; PURPOSE

The general assembly finds that agriculture is a central and vital component of our state's economy. Vermont has a unique national reputation for producing high quality crops, and its agricultural heritage is dependent on maintaining this reputation. Vermont is a leading producer of organic crops. Vermont’s economy is also dependent on tourism that results from maintaining the state’s reputation as a state with a pure and preserved natural environment. Genetically engineered crops have been shown to be dispersed into the environment, including through pollen drift, seed mix‑ups, inadvertent transfer of seeds by humans and animals, and extreme weather events. The liability for the effects of genetically engineered crops has unfairly fallen on farmers who do not plant genetically engineered crops as well as farmers who do plant genetically engineered crops, and it can be expected that the liabilities associated with the growing of genetically engineered crops in Vermont will be passed by the manufacturer to the growers of the crops and to farmers who do not plant genetically engineered crops. Genetically engineered crops cannot be successfully segregated from crops that are not genetically engineered in current agronomic science, agricultural practices, and agricultural infrastructure. Therefore, it is the purpose of this act to ensure that farmers are not harmed by this technology and to place the liability for any harm on the manufacturer of the genetically engineered crops.

Sec. 3. 6 V.S.A. chapter 35, subchapter 3 is added to read:

Subchapter 3. Liability Resulting from the Use of

Genetically Engineered Seeds and Plant Parts

§ 650. DEFINITIONS

As used in this subchapter:

(1) “Genetically engineered crop” means a crop grown from genetically engineered seed as defined in subdivision 641(9) of this title or a genetically engineered plant part as defined in subdivision 641(10).

(2) “Injury” includes:

(A) loss of any price premium that would have accrued to a farmer by contract or other marketing arrangement or that would have been otherwise reasonably available to the person through ordinary commercial channels;

(B) any reasonable additional transportation, storage, handling, or related charges or costs incurred by the contaminated farmer that would not have been incurred in the absence of crop contamination;

(C) any judgment, charge, or penalty for which the farmer of nongenetically engineered products is liable because of breach of contract, including loss of organic certification.

§ 651. LIABILITY FOR DAMAGES RESULTING FROM GENETICALLY

ENGINEERED CROPS

(a) The manufacturer of a genetically engineered seed or plant part is liable to any person who has suffered injury by the release into Vermont of a genetically engineered crop produced from such seed or plant part. The prevailing plaintiff in an action under this subsection may recover compensable damages, reasonable attorney’s fees, and other litigation expenses.

(b) The liability created by this section may not be waived or otherwise avoided by contract or other means other than insurance.

(c) A farmer who is not in breach of contract for the purchase or use of genetically engineered seeds or plant parts and unknowingly comes into possession or uses such seeds or plant parts as a result of natural reproduction, cross-pollination, or other contamination shall not be liable for any injuries, claims, losses, or expense, including attorney’s fees, caused by the use of a genetically engineered seed or plant part.

§ 652. CHOICE OF LAW

If a contract for the purchase of genetically engineered seeds or plant parts which are used in Vermont has provisions that purport to choose the laws of a jurisdiction other than Vermont to govern the contract, the provisions of the contract are void and unenforceable. Any disputes involving such contracts shall be decided using the law of Vermont.

§ 653. VENUE

The venue for an action relating to the use of genetically engineered seeds or plant parts in Vermont shall be the Vermont county in which one of the parties resides. If neither party resides in the state, the venue may be any county in Vermont.

§ 654. PROVISIONS MAY NOT BE VARIED

The provisions of this subchapter may not be varied or waived by agreement of the parties.

§ 655. LIMITATION OF ACTION

An action brought pursuant to this subchapter shall be brought within three years after the cause of action accrues and not after.

Sec. 4. SEVERABILITY

Pending the question, Shall the House substitute an amendment offered by Reps. Klein of East Montpelier, et al, for the recommendation of proposal of amendment offered by the committee on Judiciary?

Rep. McAllister of Highgate demanded the Yeas and Nays, which demand was sustained by the Constitutional number. The Clerk proceeded to call the roll and the question, Shall the House substitute an amendment offered by Reps. Klein of East Montpelier, et al, for the recommendation of proposal of amendment offered by the committee on Judiciary? was decided in the negative. Yeas, 68. Nays, 79.

Those who voted in the affirmative are: