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Senate Calendar

tuesday, may 24, 2005

140th DAY OF BIENNIAL SESSION

TABLE OF CONTENTS

                                                                                                                Page No.

ACTION CALENDAR

UNFINISHED BUSINESS OF THURSDAY, MAY 19, 2005

House Proposal of Amendment

S. 41       Unemployment compensation for survivors...................................... 1213

NEW BUSINESS

Third Reading

S. 171     Agricultural water quality................................................................. 1214

Second Reading

Favorable with Recommendation of Amendment

S. 112     Relating to the practice of optometry............................................... 1214

                        Government Operations Committee Report............................ 1214

Favorable with Proposal of Amendment

H. 531    Reorganizing the Agency of Human Services................................... 1215

                        Government Operations Committee Report............................ 1215

Joint Resolution for Action

JRS. 36  Relative to federal policy concerning MTBE.................................... 1216

NOTICE CALENDAR

Favorable with Proposal of Amendment

H. 516    Appropriations for the support of government.................................. 1216

               (See Addendum for report of Committee on Appropriations)

House Proposals of Amendment

S. 102     Restitution procedures.................................................................... 1216

S. 166     Remote control hunting................................................................... 1224

ORDERED TO LIE

S. 157     Relating to rulemaking for Vermont origin........................................ 1225

H. 510    Amending the charter of the city of Barre......................................... 1225





 

ORDERS OF THE DAY

ACTION CALENDAR

UNFINISHED BUSINESS OF THURSDAY, MAY 19, 2005

House Proposal of Amendment

S. 41

An act relating to Unemployment Compensation for Survivors.

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

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

Sec. 2.  DOMESTIC AND SEXUAL VIOLENCE TRAINING; DEPARTMENT OF EMPLOYMENT AND TRAINING

The Department of Employment and Training in cooperation with the Vermont Network Against Domestic and Sexual Violence shall design and implement training program no later than 120 days after the effective date of this act.  The training shall be provided to appropriate department employees who interact with claimants under chapter 16A of Title 21 and shall include all the following:

(1)  The nature and dynamics of domestic violence, sexual assault, and stalking.

(2)  Other resources and support services available for the survivors.

Second:  In Sec. 1, § 1254(2)(A) of 21 V.S.A., by striking out the final sentence and inserting in lieu thereof the following:

Failure to pursue reasonable alternatives may be excused if the individual establishes that pursuit of alternatives is likely to:

(i)  Be futile.

(ii)  Increase the risk of future incidents of domestic and sexual violence.

(iii)  Not adequately address the specific circumstances that led to the individual’s decision to separate from employment.

Third:  In Sec. 1., 21 V.S.A. § 1254(2), in subdivision (B) at the end of the final sentence and before the period, by adding the words and prior to releasing the requested information

Fourth:  In Sec. 1., 21 V.S.A. § 1256 in subsection (b) in the second sentence by striking out the words “a reasonable time” and inserting in lieu thereof the words seven working days

Fifth:  In Sec. 1, chapter 16A of 21 V.S.A., by striking out § 1253 and renumbering the subsequent sections to be numerically correct

Sixth: By adding a Sec. 4 to read as follows:

Sec. 4.  APPROPRIATION; FUNDING SOURCES; FUTURE FUNDING

(a)  There is appropriated from the Crime Victims Restitution Fund in FY 2006, the amount of $30,000.00 to the Department of Employment and Training to pay for claims approved pursuant to chapter 16A of Title 21.  Any amounts unexpended by the department at the end of this fiscal year shall be carried forward until fully expended.  In addition to this appropriation, the Department of Employment and Training may accept donations and gifts in accordance with 32 V.S.A. §5 to pay claims approved pursuant to chapter 16A of Title 21.

(b)  No funds from the Unemployment Compensation Trust Fund shall be used to pay claims under chapter 16A of Title 21.

(c)  In fiscal year 2007, an appropriation for the Domestic and Sexual Violence Survivors’ Transitional Program shall be included in the state budget recommended by the governor.

NEW BUSINESS

Third Reading

S. 171

     An act relating to agricultural water qualitiy.

Second Reading

Favorable with Recommendation of Amendment

S. 112

An act relating to the practice of optometry.

Reported favorably with recommendation of amendment by Senator White for the Committee on Government Operations.

The Committee recommends that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  Sec. 12(a) of No. 108 of the Acts of the 2004 General Assembly is amended to read:

(a)  26 V.S.A. § 1724 (formulary committee) shall be repealed in its entirety on December 31, 2005 July 1, 2006.  Any formulary in effect on this date shall remain in effect unless or until a process for adopting a new formulary is authorized by law.

Sec. 2.  REPEAL

26 V.S.A. § 1728b (disclosure of information by optometrist) is repealed.

(Committee vote: 6-0-0)

Favorable with Proposal of Amendment

H. 531

An act relating to reorganizing the agency of human services.

Reported favorably with recommendation of proposal of amendment by Senator White for the Committee on Government Operations.

The Committee recommends that the Senate propose to the House to amend the bill by striking out Secs. 5 and 6 in their entirety and inserting in lieu thereof new Secs. 5 and 6 to read as follows:

Sec. 5.  33 V.S.A. § 5562 is amended to read:

§ 5562.  JUVENILE JUSTICE UNIT; JUVENILE JUSTICE DIRECTOR

(a)  A juvenile justice unit is created in the family services division of the department for children and families.  The unit shall be headed by a juvenile justice director. 

(b)  The governor shall appoint an exempt juvenile justice director, reporting directly to the secretary of the agency of human services, who shall have the responsibility and authority to monitor and coordinate all state and participating regional and local programs that deal with juvenile justice issues, including prevention, education, enforcement, adjudication, and rehabilitation.

(b)(c)  The juvenile justice director shall ensure that the following occur:

* * *

Sec. 6.  JUVENILE JUSTICE DIRECTOR; TRANSFER

The exempt position of juvenile justice director, currently assigned to the agency of human services, shall be converted to a classified position and transferred to the department for children and families.

(Committee Vote: 6-0-0)

(No House amendments)


Joint Resolution for Action

J.R.S. 36

Joint resolution relative to federal policy concerning MTBE.

(For text of Resolution, see Senate Journal for May 20, 2005, page 798)

NOTICE CALENDAR

Favorable with Proposal of Amendment

H. 516

     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 text of the report of the Committee on Appropriations, see Addendum to the Senate Calendar for May 24, 2005.

House Proposal of Amendment

S. 102

An act relating to restitution procedures.

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.  LEGISLATIVE INTENT

It is the intent of the general assembly that the crime victims’ restitution special fund be used to reimburse individuals who are victims of crime.  Businesses and government entities shall continue to receive restitution from the restitution unit as it is collected from offenders.

Sec. 2.  13 V.S.A. § 5362 is amended to read:

§ 5362.  RESTITUTION UNIT

(a)  A restitution unit is created within the center for crime victim services for purposes of assuring that crime victims receive restitution when it is ordered by the court.

(b)  The restitution unit shall administer the restitution fund established under section 5363 of this title.

(c)  The restitution unit shall have the authority to:

(1)  Collect restitution from the defendant offender when it is ordered by the court on or after July 1, 2004, deposit the funds collected into the restitution fund, and make payments to victims out of the fund under section 7043 of this title.

(2)  Collect restitution from the defendant when it is ordered by the court prior to July 1, 2004 and make payments to victims.  Restitution Bring an action to enforce a restitution obligation as a civil judgment under section 7043 of this title.  The restitution unit shall enforce restitution orders issued prior to July 1, 2004 shall be enforced pursuant to the law in effect on the date the order is issued.

(3)  Bring an action to enforce a restitution order issued on or after July 1 2004 as a civil judgment under section 7043 of this title.

(4)(A)  Share and access information, consistent with Vermont and federal law, from the court, the department of corrections, the department of motor vehicles, the department of taxes, and the department of employment and training in order to carry out its collection and enforcement functions.

(B)  Provide information to the department of corrections concerning supervised offenders, including an offender’s restitution payment history and balance, address and contact information, employment information, and information concerning the restitution unit’s collection efforts.

(4)  Investigate and verify the amount of insurance or other payments paid to or for the benefit of a victim, and adjust the amount disbursed to the victim from the crime victims’ restitution special fund accordingly.

(5)  Adopt such administrative rules as are reasonably necessary to carry out the purposes set forth in this section.

Sec. 3.  13 V.S.A. § 5363 is amended to read:

§ 5363.  CRIME VICTIMS’ RESTITUTION SPECIAL FUND

(a)  There is hereby established in the state treasury a fund to be known as the crime victims’ restitution special fund, to be administered by the restitution unit established by section 5362 of this title, and from which payments may be made to provide restitution to crime victims.

(b)(1)  There shall be deposited into the fund:

(1)(A)  All monies, except for monies given to the victims compensation fund under subdivisions 7043(h)(3) and (j)(2) of this title, collected from persons against whom restitution has been ordered on or after July 1, 2004 collected by the restitution unit pursuant to section 7043 of this title.

(2)(B)  All fees imposed by the clerk of court and designated for deposit into the fund pursuant to section 7282 of this title.

(3)(C)  All monies donated to the restitution unit or the crime victims’ restitution special fund.

(4)(D)  Such sums as may be appropriated to the fund by the general assembly.

(2)  If a person donates funds, or if a restitution recipient has declined to accept payment of restitution, the donated or declined amounts shall be retained in the crime victims’ restitution special fund.

(c)  The restitution unit shall make disbursements from the restitution special fund only to pay restitution obligations arising under section 7043 of this title,  to support the restitution unit, or pursuant to subsection (d) of this section. 

(d)(1) The restitution unit is authorized to advance up to $10,000.00 to a victim or to a deceased victim’s heir or legal representative if the victim:

(A) was first ordered by the court to receive restitution on or after July 1, 2004;

(B) is a natural person or the natural person’s legal representative; and

(C) has not been reimbursed under subdivision (2) of this subsection.

(2)  The restitution unit may make advances of up to $10,000.00 under this subsection to the following persons or entities:

(A) A victim service agency approved by the restitution unit if the agency has advanced monies which would have been payable to a victim under subdivision (1) of this subsection.

(B)  A victim who is a natural person or the natural person’s legal representative in a case where the defendant, before or after an adjudication of guilt, enters into a drug court contract requiring payment of restitution.   

(3) An advance under this subsection shall not be made to the government or to any governmental subdivision or agency.

(e)  If the restitution unit collects in excess of $10,000.00 from an offender, the amount in excess of $10,000.00 shall first be paid to that offender’s victims until the victims have received the full amount of restitution ordered.  Any excess remaining after the victims have received the full amount of restitution ordered shall be divided between the victims’ compensation fund and the crime victims’ special restitution fund in proportion to the amount which each paid.

(f)(1)  In no event shall the amount of restitution advanced to the victims of a single crime spree during a single fiscal year under this title exceed five percent of the balance of the fund at the end of the prior fiscal year.  If this section applies, an advance payment to a victim shall be reduced by the same percentage that the restitution unit reduces the total amount advanced to all victims in connection with the crime spree.  Unless otherwise ordered by the court, the restitution unit shall determine the offenders and crimes encompassed within a crime spree.

(2)  A victim whose advance payment is reduced pursuant to this subsection shall be entitled to receive additional advance payments during subsequent fiscal years until the restitution order has been satisfied or the $10,000.00 cap has been reached, whichever occurs first.

(c)(g)  All balances in the fund at the end of any fiscal year shall be carried forward and remain a part of the fund.  Disbursements from the fund shall be made by the state treasurer on warrants drawn by the commissioner of finance and management.

(d)(h)  Notwithstanding anything in this section or any other provision of law to the contrary, revenue from the surcharge fees deposited into the crime victims’ restitution special fund shall be used exclusively to support the restitution unit and restitution for crime victims, and for no other purpose.

Sec. 4.  13 V.S.A. § 5364 is added to read:

§ 5364.  SUBROGATION LIEN

The state shall be subrogated to the rights of the victim, assignee, heir, or dependent to whom restitution payments are made to the extent of the payments made.  The state shall have a lien therefor and may commence an action or intervene in any action to protect and enforce such lien.  Such subrogation rights shall be against any person liable for the pecuniary loss.

Sec. 5.  13 V.S.A. § 7043 is amended to read:

§ 7043.  RESTITUTION

* * *

(c)  In awarding restitution, the court shall make findings with respect to:

(1)  The total amount of the material loss incurred by the victim.  If sufficient documentation of the material loss is not available at the time of sentencing, the court shall set a hearing on the issue, and notice thereof shall be provided to the defendant offender.

(2)  The defendant’s offender’s current ability to pay restitution, based on all financial information which the defendant has filed with the court available to the court, including information provided by the offender.

(d)(1)  An order of restitution shall establish the amount of the material loss incurred by the victim, which shall be the restitution judgment order. In the event the defendant offender is unable to pay the restitution judgment order at the time of sentencing, the court shall establish a restitution payment schedule for the defendant offender based upon the defendant’s offender’s current and reasonably foreseeable ability to pay, subject to modification under subsection (k) of this section.

(2)(A)  Every order of restitution shall:

(i)  include the defendant’s offender’s name, address and social security number;

(ii)  include the name, address, and telephone number of the defendant’s offender’s employer; and

(iii)  require the defendant offender, until his or her restitution obligation is satisfied, to notify the restitution unit within 30 days if the defendant’s offender’s address or employment changes, including providing the name, address, and telephone number of each new employer.

(B)  A defendant’s social security An offender’s Social Security number shall only be used by the restitution unit for the purpose of facilitating the collection of restitution, and shall not otherwise be released.

(e)(1)  If not paid at the time of sentencing, restitution may be ordered as a condition of probation, supervised community sentence, furlough, preapproved furlough, or parole if the convicted person is sentenced to preapproved furlough, probation, or supervised community sentence, or is sentenced to imprisonment and later placed on parole.  A person shall not be placed on probation solely for purposes of paying restitution.  A defendant An offender may not be charged with a violation of probation, furlough, or parole for nonpayment of restitution.

(2)  The department of corrections shall work collaboratively with the restitution unit to assist with the collection of restitution.  The department shall provide the restitution unit with information about the location and employment status of the defendant offender.

(f)  When restitution is requested and but not ordered, the court shall set forth on the record its reasons for not ordering restitution.

(g)  Restitution ordered under this section shall not preclude a person from pursuing an independent civil action for all claims not covered by the restitution order.

(h)(1)  The court shall transmit a copy of a restitution order to the restitution unit, which shall make payment to the victim from the restitution fund established under in accordance with section 5363 of this title.  If the victim has died, payment shall be made to the victim’s estate.

(2)  A payment out of the restitution fund shall not exceed $10.000.00, except as provided in subdivision (j)(2) of this section.

(3)  To the extent that the victims compensation board has made payment to or on behalf of the victim in accordance with chapter 167 of this title, restitution, if imposed, shall be paid to the restitution unit, which shall make payment to the victims compensation fund.

(i)  The restitution unit may bring an action to enforce a restitution order against a defendant an offender in the superior or small claims court of the county where the offender resides or in the county where the order was issued. In an action under this subsection, a restitution order issued by the district court shall be enforceable in superior or small claims court in the same manner as a civil judgment.  Superior and small claims court filing fees shall be waived for an action under this subsection.

(j)(1)  All restitution payments by a defendant shall be made to the restitution unit, with the exception of restitution relating to a conviction for welfare fraud ordered under this section and recouped by the economic services division.  The economic services division shall provide the restitution unit with a monthly report of all restitution collected through recoupment.  This subsection shall have no effect upon the collection or recoupment of restitution ordered under Title 33.

(2)  If the restitution unit collects in excess of $10,000.00 from the defendant, the amount in excess of $10,000.00 shall be paid to the victim until the victim has received the full amount of the restitution order.  Any excess remaining after the victim has received the full amount of the restitution order shall be divided between the victims compensation fund and the restitution unit in proportion to the amount which each paid to the victim.

(k)  The sentencing court may modify the payment schedule of a restitution order if, upon motion by the restitution unit or the defendant offender, the court finds that modification is warranted by a substantial change in circumstances.

(l)  If the defendant offender fails to pay restitution as ordered by the court, the restitution unit may file an action to enforce the restitution order in superior or small claims court.  The court shall set the matter for hearing and shall provide notice to the restitution unit, the victim, and the defendant offender.  If the court determines the defendant offender has failed to comply with the restitution order, the court may take any action the court deems necessary to ensure the defendant offender will make the required restitution payment, including:

(1)  amending the payment schedule of the restitution order;

(2)  ordering, in compliance with the procedures required in Rule 4.1 of the Vermont Rules of Civil Procedure, the disclosure, attachment, and sale of assets and accounts owned by the defendant offender;

(3)  ordering the defendant’s offender’s wages withheld pursuant to subsection (n) of this section; or

(4)  ordering the suspension of any recreational licenses owned by the defendant offender.

(m)(1)  Any monies owed by the state to an offender who is under a restitution order, including lottery winnings and tax refunds, shall be used to discharge the restitution order to the full extent of the unpaid total financial losses, regardless of the payment schedule in the restitution payment plan established by the courts.

(2)  When an offender is entitled to a tax refund, any restitution owed by the offender shall be withheld from the refund pursuant to subchapter 12 of chapter 151 of Title 32.

(3)(A)  For all Vermont lottery games, the lottery commission shall, before issuing prize money of $500.00 or more to a winner, determine whether the winner has an outstanding restitution order.  If the winner owes restitution, the lottery commission shall withhold the entire amount of winnings restitution owed and pay it to the restitution unit.  The restitution unit shall offset the winnings by the amount of restitution owed and the The remainder of the winnings, if any, shall be sent to the winner.  The winner shall be notified by the restitution unit of the offset prior to payment to the victim and given a period not to exceed 20 days to contest the accuracy of the information.

(B)  The restitution unit shall inform the lottery commission of persons with outstanding restitution orders upon request.  Each person subject to such an order shall be identified by name, address, and Social Security number.

(C)  If a lottery winner has an outstanding restitution order and an outstanding child support order, the lottery winnings shall be offset first pursuant to section 792 of Title 15 by the amount of child support owed, and second pursuant to this subsection by the amount of restitution owed.  The remainder of the winnings, if any, shall be sent to the winner.

(4)  Monies Unless otherwise provided, monies paid under this subsection shall be paid directly to the restitution unit, which shall notify the victim that the monies have been received.

(n)(1)  The sentencing court at the time of sentencing, or the superior or small claims court in a subsequent proceeding, may issue a wage withholding order directing current and subsequent employers of the defendant offender to pay a portion of the defendant’s offender’s wages directly to the restitution unit until the defendant’s offender’s restitution obligation is satisfied.  The wages of the defendant offender shall be exempt as follows: 

* * *

(2)  The court shall transmit all wage withholding orders issued under this section to the restitution unit, which shall forward the orders to the defendant’s offender’s employers.  Upon receipt of a wage withholding order from the restitution unit, an employer shall:

(A)  withhold from the wages paid to the defendant offender the amount specified in the order for each wage period;

(B)  forward the withheld wages to the restitution unit within seven working days after wages are withheld, specifying the date the wages were withheld;

(C)  retain a record of all withheld wages;

(D)  cease withholding wages upon notice from the restitution unit; and

(E)  notify the restitution unit within 10 days of the date the defendant’s offender’s employment is terminated.

(3)  In addition to the amounts withheld pursuant to this section, the employer may retain not more than $5.00 per month from the defendant’s offender’s wages as compensation for administrative costs incurred.

* * *

(o)  A restitution obligation shall be nondischargeable, An obligation to pay restitution is part of a criminal sentence and is nondischargeable in the United States Bankruptcy Court to the maximum extent provided under 11 U.S.C. § 523, in the United States Bankruptcy Court §§ 523 and 1328.

(p)  A transfer of property made with the intent to avoid a restitution obligation shall be deemed a fraudulent conveyance for purposes of chapter 57 of Title 9, and the restitution unit shall be entitled to the remedies of creditors provided under section 2291 of Title 9.


House Proposal of Amendment

S. 166

An act relating to remote control hunting.

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.  10 V.S.A. § 4715 is added to read:

§ 4715.  REMOTE-CONTROL HUNTING

(a)  As used in this section:

(1)  “Captive animal” includes an animal which has been brought into and kept in captivity for the purpose of taking it, and any increase of such animal.

(2)  “Remote-control hunting” means the use of a computer, any device which uses the internet, or any other technology to control remotely the aiming and discharge of any device such as a firearm, bow, or spear to take a wild animal or captive animal.

(b)  Except as provided in subsection (e) of this section, no person shall take a wild animal or captive animal using a remote‑control hunting device.  This subsection shall apply to any person who is in Vermont while using a remote‑control hunting device regardless of the location of the animal taken.

(c)  No person shall establish or operate a remote-control hunting site in Vermont.

(d)  No person shall import, export, or possess a wild animal or captive animal, or part thereof, taken by a remote-control hunting device, except that a person operating under a permit pursuant to subsection (e) of this section may possess an animal carcass, or part thereof, taken by that person using a remote‑control hunting device.

(e)  A person who is impaired to the degree that he or she cannot operate a device allowed for taking of game under Vermont law, may obtain a permit to take game in Vermont with a remote-control hunting device.  A person applying for this permit shall personally appear before the commissioner or the commissioner’s designee and submit certification from a licensed physician describing the person’s limitations.  The commissioner may obtain a second medical opinion to verify the disability.  Upon satisfactory proof of the disability, the commissioner may issue a permit describing the device and method the person may use to take game, and may require that the permittee be accompanied while hunting by a person who is licensed to hunt in Vermont and who is able to track injured game and to retrieve and care for a carcass.  If the permit is not intended to be a permanent permit, it shall state the date on which the permit expires.  The permit shall be attached to the hunting license, and the holder shall carry it at all times while hunting and produce it on demand for inspection by any fish and wildlife warden or other law enforcement officer.

Sec. 2.  EFFECTIVE DATE

This act shall take effect on passage.

ORDERED TO LIE

S. 157

An act relating to rulemaking for Vermont origin.

PENDING ACTION:  Second reading  of the bill.

H. 510

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

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.

Theodore Lindgren of Springfield – Member of the Parole Board – By Sen. Campbell for the Committee on Institutions.  (4/14)

Joseph Acinapura of Brandon – Member of the Parole Board – By Sen. Giard for the Committee on Institutions.  (4/20)

Dean George of Middlebury – Member of the Parole Board – By Sen. Giard for the Committee on Institutions.  (4/20)

Karen Handy Luneau of St. Albans – Member of the Vermont State Colleges Board of Trustees – By Sen. Collins for the Committee on Education.  (5/5)

David E. Luce of Waterbury Center – Member of the Community High School of Vermont Board – By Sen. Doyle for the Committee on Education.  (5/5)

Walter E. Freed of Dorset – Member of the Liquor Control Board – By Sen. Dunne for the Committee on Economic Development, Housing and General Affairs.  (5/6)

Ugo Sartorelli of Barre – Member of the State Police Advisory Commission – By Sen. Doyle for the Committee on Government Operations.

Patrick Flood of East Calais – Commissioner of the Department of Aging and Independent Living – By Sen. White for the Committee on Health and Welfare.  (5/18)

James Morse of Charlotte – Commissioner of the Department of Children and Families – By Sen. Flanagan.  (5/18)

Paul Jarris, M.D. of Shelburne – Commissioner of the Department of Health – By Sen. Leddy for the Committee on Health and Welfare.  (5/18)



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us