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House Calendar

THURSDAY, APRIL 26, 2007

114th DAY OF BIENNIAL SESSION

House Convenes at 1:00  P M

TABLE OF CONTENTS

                                                                                                               Page No.

ACTION CALENDAR

     Action Postponed Until Thursday, April 26, 2007

Favorable with Amendment

S.  39  Health Insurance Reimbursement for Naturopathic Physicians............ 1109                                Rep. Milkey for Health Care

Third Reading

S.  54  Relating to Motor Vehicle Wreckers................................................. 1110

Committee Bill for Second Reading

H. 545  Relating to the Agency of Human Services....................................... 1110

               Rep. Evans for Government Operations

Favorable with Amendment

S. 133  Motor Vehicle /Junior Operators / Primary Seat Belt Enforcement.... 1110

               Rep. Grad for Judiciary

               Rep. G. Clark Amendment............................................................ 1114

 

For Action Under Rule 52

J.R.H. 25  Authorizing Forests, Parks and Recreation Land Exchanges........ 1115

NOTICE CALENDAR

Favorable with Amendment

H. 542  Amendment to Charter City of Vergennes........................................ 1115

               Rep. Manwaring for Government Operations

 

S.    6  Preventing Conviction of Innocent Persons........................................ 1116

               Rep. Jewett for Judiciary

 

 

S.   93   Miscellaneous Changes to Education Law....................................... 1128

               Rep. Donovan for Education

S. 137  Reducing Phosphorus Allowed in Household Cleansing Products ..... 1135

               Rep. C. Martin for Fish, Wildlife and Water Resources

Favorable

H. 330  Repeal of Law to Municipal Trailer Park Ordinances....................... 1136

               Rep. Valliere for General, Housing and Military Services

S. 52  Motor Vehicles, Snowmobiles, Motorboats, All-Terrain Vehicles....    1136

               Rep. Minter for Transportation

S. 128  Sunsets on Forensic Examinations at Designated Hospitals................ 1136

               Rep. Mrowicki for Human Services

Senate Proposals of Amendment

H. 296  Potable Water Supply and Wastewater System Permitting............... 1136

H. 313  Administration and Enforcement of Fines in Judicial System.............. 1137

 

CONSENT CALENDAR

(See Addendum to House and Senate Calendar)

H.C.R. 123  In Memory of Elizabeth Daley Jeffords .................................... 1156

H.C.R. 124  Congratulating 2007 Champions Vermont Frost Heaves........... 1156


 

ORDERS OF THE DAYACTION CALENDAR

     Action Postponed Until Thursday, April 26, 2007

S. 39

An act relating to health insurance plan reimbursement for covered services by naturopathic physicians.

Rep. Milkey of Brattleboro, for the Committee on Health Care, recommends that the House propose to the Senate that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  8 V.S.A. § 4088d is added to read:

§ 4088d.  COVERAGE FOR COVERED SERVICES PROVIDED BY

                 NATUROPATHIC PHYSICIANS

(a)  A health insurance plan shall provide coverage for medically necessary health care services covered by the plan when provided by a naturopathic physician licensed in this state for treatment within the scope of practice described in chapter 81 of Title 26.  Health care services provided by naturopathic physicians may be subject to reasonable deductibles, co-payment and co-insurance amounts, fee or benefit limits, practice parameters,

cost-effectiveness and clinical efficacy standards, and utilization review consistent with any applicable regulations published by the department of banking, insurance, securities, and health care administration. Any amounts, limits, standards, and review shall not function to direct treatment in a manner unfairly discriminative against naturopathic care, and collectively shall be no more restrictive than those applicable under the same policy to care or services provided by other health care providers, but may allow for the management of the benefit consistent with variations in practice patterns and treatment modalities among different types of health care providers.  A health insurance plan may require that the naturopathic physician’s services be provided by a licensed naturopathic physician under contract with the insurer or shall be covered in a manner consistent with out-of-network provider reimbursement practices for primary care providers.  Nothing contained herein shall be construed as impeding or preventing either the provision or the coverage of health care services by licensed naturopathic physicians, within the lawful scope of naturopathic practice, in hospital facilities on a staff or employee basis.

(b)  As used in this section, “health insurance plan” means any individual or group health insurance policy, any hospital or medical service corporation or health maintenance organization subscriber contract, or any other health benefit plan offered, issued, or renewed for any person in this state by a health insurer, as defined by 18 V.S.A. § 9402.  The term shall not include benefit plans providing coverage for specific disease or other limited benefit coverage.

Sec. 2.  EFFECTIVE DATE

This act shall be effective on October 1, 2007.

(Committee vote: 9-1-1)

(For Senate amendments see Senate Journal 3/21/07-Pages 272-273

Third Reading

S. 54

An act relating to motor vehicle wreckers.

Committee Bill for Second Reading

H. 545

An act relating to the agency of human services.

(Rep. Evans of Essex will speak for the Committee on Government Operations.)

Favorable with Amendment

S. 133

An act relating to the operation of a motor vehicle by junior operators and primary safety belt enforcement.

Rep. Grad of Moretown, for the Committee on Judiciary, recommends that the House propose to the Senate that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  TITLE OF THE ACT

This act shall be known as and may be cited as the "Highway Traffic Safety Act of 2007."

* * * Legislative Findings * * *

Sec. 2.  LEGISLATIVE FINDINGS

The general assembly finds that:

* * * General Findings * * *

(1)  In December 2006, the governor transmitted to the Division Administrator of the Federal Highway Administration, the Strategic Highway Plan for Vermont that stated "The first half of 2006 was trending toward a near record-breaking year for highway deaths and incapacitating injuries."  In response to this trend, the Strategic Highway Fatality Plan for Vermont was created with the mission to "minimize the occurrence and severity of crashes, related human suffering, and economic losses on the Vermont transportation network."

(2)  In response to this increase, the commissioner of public safety held a law enforcement summit to develop collaborative strategies to combat these fatalities.

(3)  According to the governor's highway safety office, each highway fatality costs the state of Vermont more than $900,000.00.

(4)  In further recognition of the terrible toll in terms of human suffering, and financial loss resulting from motor vehicle crashes, on July 6, 2006, the Vermont department of health’s injury prevention program hosted the 2006 Symposium on Preventing Crashes Among Young Drivers at the Inn at Essex, Vermont.  The symposium brought together key leaders in highway safety, transportation, public health, and youth development for an in-depth,

multi-disciplinary exploration of crashes among young drivers and opportunities for prevention.

* * * Teen Driving Safety * * *

(1)  The Strategic Highway Safety Plan for Vermont of 2006, signed by the governor and endorsed by state agencies stated that “new language” should be added to the existing graduated driver license legislation to achieve:

(A)  Restrictions on passengers in cars driven by young drivers.

(B)  Nighttime limitations for young drivers.

(C)  Primary safety belt enforcement to the age of 18.

(D)  No cell phone use for junior operators. 

(2)  From a public health perspective, "Motor vehicle crashes are among the most serious problems facing teenagers (Anatomy of Crashes Involving Young Drivers-Preventing Teen Motor Crashes).  According to the National Center for Disease Control, highway injuries and deaths constitute the largest reason for  youth injuries and deaths, and therefore constitute a public health risk warranting remedial action.

(3)  According to the above sources, the 2002 cost of crashes involving drivers ages 20 through 25 was $40.8 billion.  (National Center for Injury Prevention and Control, 2006.)

(4)  A study conducted by the Insurance Institute for Highway Safety on junior operators demonstrated that a single passenger nearly doubled the risk of a fatal crash, and two or more passengers raise the risk five-fold for the junior operator.

(5)  Nighttime is one of the riskiest times of day for junior operators due to DUI, darkness, and sleep deprivation in teens.  Midnight to 2 a.m. is the most dangerous time.

* * * Cell Phones * * *

(1)  The National Highway Traffic Safety Administration policy on cell phones states "The primary responsibility of the driver is to operate a motor vehicle safely.  The task of driving requires full attention and focus.  Cell phone use can distract drivers from this task, risking harm to themselves and others.  Therefore, the safest course of action is to refrain from using a cell phone while driving."

(2)  Teens, driving, and cell phones are a dangerous mix due to teens' vulnerability to distractions and accidents. ("Teens, phones, cars, a bad mix", The Sunday Rutland Herald, June 26, 2005--Source--The National Transportation Safety Board.)

* * * Safety Belts * * *

(1)  States with primary enforcement average 10 percent higher usage than states with secondary enforcement.

(2)  A crash involving an unrestrained person costs 55 percent more than for someone who was restrained.

(3)  Approximately 74 percent of the costs associated with crashes are paid for by society, the victim pays the balance.

(4)  Drivers who do not wear safety belts are also most likely to engage in risky driving behavior, such as speeding or drinking and driving.

(5)  Traffic crashes are a health care issue, not an enforcement issue.  As Dr. Eliot Nelson, pediatrician at Vermont's Childrens Hospital and professor at the UVM school of medicine said "By passing primary (enforcement), the legislature can save more lives with one stroke of the pen than I can in a lifetime of practice."

* * * Stickers Indicating Operation by Junior Operators * * *

Sec. 3.  23 V.S.A. § 607(d) is added to read:

(d)  The department of motor vehicles shall issue removable stickers which shall be affixed to the interior rear window of all vehicles when operated by a junior operator.  The sticker shall indicate that the vehicle is being operated by a junior operator. 

* * * Junior Operator Curfew * * *

Sec. 4.  23 V.S.A. § 614(c) is added to read:

(c)  A person operating with a junior operator’s license shall not operate a motor vehicle between midnight and 5:00 a.m. except when the operator is traveling on a direct route between work and home, or traveling for a school‑related activity.

* * * Operation After Recall Is a Civil Violation * * *

Sec. 5.  23 V.S.A. § 676 is amended to read:

§ 676.  OPERATION AFTER SUSPENSION, REVOCATION, OR

            REFUSAL, OR RECALL - CIVIL VIOLATION

(a)  A person whose license or privilege to operate a motor vehicle has been revoked, suspended or, refused, or recalled by the commissioner of motor vehicles for any reason other than a violation of sections 1091(b), 1094(b), 1128(b) or (c), or 1201 or a suspension under section 1205 of this title and who operates or attempts to operate a motor vehicle upon a public highway before the license or privilege of the person to operate a motor vehicle has been reinstated by the commissioner commits a civil traffic violation.

(b)  In establishing a prima facie case against a person accused of violating this section, the judicial bureau shall accept as evidence, a printout attested to by the law enforcement officer as the person’s motor vehicle record showing convictions and resulting license suspensions.  The admitted motor vehicle record shall establish a permissive inference that the person was under suspension or had his or her license revoked or recalled on the dates and time periods set forth in the record.  The judicial bureau shall not require a certified copy of the person’s motor vehicle record from the department of motor vehicles to establish the permissive inference.

* * * Restriction on the Use of Cellular Telephones * * *

Sec. 6.  23 V.S.A. § 1095a is added to read:

§ 1095a.  WIRELESS TELEPHONE USE

(a)  A person operating a motor vehicle with a learner permit under the provisions of section 617 of this title or with a junior operator license under the provisions of section 607 of this title shall not use any wireless telephone or hand-held electronic device while operating on the traveled portion of the highway.

(b)  A person operating a motor vehicle with a valid license shall be prohibited from using any wireless telephone or hand-held electronic communication device while operating on the traveled portion of the highway.

(c)  The prohibition in subsection (b) of this section shall not apply to hands-free operation of a telephone.  The prohibitions in subsections (a) and (b) of this section shall not apply if it is necessary to place an emergency 911 call.  As used in this subsection, "hands-free" means a mobile telephone that has an internal feature or function, or that is equipped with an attachment or addition, whether or not permanently part of the mobile telephone, by which a user engages in a conversation without the use of either hand; provided, however, this definition shall not preclude the use of either hand to activate, deactivate, or initiate a function of the telephone.

* * * Primary Enforcement of Safety Belt Law * * *

Sec. 7.  REPEAL

23 V.S.A. § 1259(e) (secondary enforcement of safety belt law) is repealed.

Sec. 8.  ACCEPTANCE OF FEDERAL FUNDS

The state is authorized to accept any additional funding available from the federal government attributable to the passage of this act.

Sec. 9.  EFFECTIVE DATE

This act shall take effect on June 30, 2007.

(Committee vote: 9-1-1)

(No Senate Amendments)

Proposal of Amendment to Proposal of Amendment to be offered by Rep. Clark of Vergennes  to S. 133

Moves to amend the proposal of amendment by striking Sec. 9 in its entirety and inserting in lieu thereof three new sections to be numbered Secs. 9, 10, and 11 to read as follows:

Sec. 9.  4 V.S.A. § 1102 is amended to read:

§ 1102.  JUDICIAL BUREAU; JURISDICTION

* * *

(b)  The judicial bureau shall have jurisdiction of the following matters:

* * *

(11)  violations of 18 V.S.A. § 4234b(b), relating to selling ephedrine base, pseudoephedrine base, or phenylpropanolamine base;

(12)  violations of 13 V.S.A. § 2510, relating to the unauthorized possession of signs issued by the state or a municipality.

Sec. 10.  13 V.S.A. § 2510 is added to read:

§ 2510.  UNAUTHORIZED POSSESSION OF SIGNS ISSUED BY THE STATE OR A MUNICIPALITY

(a)  A person who possesses without prior authorization any of the following signs shall be subject to a civil penalty not more than $500.00:

(1)  A sign issued by the state enhanced 9‑1‑1 board pursuant to subdivision 7053(a)(3) of Title 30.

(2)  A traffic control sign, signal, or marking issued pursuant to section 1025 of Title 23.

(3)  A municipal sign issued pursuant to section 1029 of Title 23.

(4)  An official directional sign posted for the purpose of providing tourist information pursuant to section 486 of Title 10.

(b)  An action under subsection (a) of this section shall be brought in the same manner as for a traffic violation pursuant to chapter 24 of Title 23.

Sec. 11.  EFFECTIVE DATE

(a)  Secs. 1-8 of this act shall take effect on June 30, 2007.

(b)  Secs. 9 and 10 of this act shall take effect on July 1, 2008.

For Action Under Rule 52

     J. R. H. 25

     Joint resolution authorizing the commissioner of forests, parks and recreation to enter into land exchanges.

(For text see House Journal April 25, 2007)

NOTICE CALENDAR

Favorable with Amendment

H. 542

     An act relating to approval of amendment to the charter of the city of Vergennes.

Rep. Manwaring of Wilmington, for the Committee on Government Operations, recommends the bill be amended in Sec. 2, 24 V.S.A. App. Chapter 15, § 26(b), in the second sentence, after the first instance of the word “capacity” , by inserting the following: outside the territorial limits of the city

(Committee vote: 11-0-0)

 

S.  6

An act relating to preventing conviction of innocent persons.

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

Sec. 1.  13 V.S.A. chapter 182 is added to read:

CHAPTER 182.  INNOCENCE PROTECTION

Subchapter 1.  Postconviction DNA Testing

§ 5561.  PETITION FOR POSTCONVICTION DNA TESTING

(a)  A person convicted of a qualifying crime may at any time file a petition requesting forensic DNA testing of any evidence which may contain biological evidence that was obtained during the investigation or prosecution of the crime.  The petition shall:

(1)  specifically identify the crime for which the petitioner asserts that he or she is innocent and the evidence which the petitioner seeks to have subjected to DNA testing;

(2)  contain the petitioner’s certification, under oath, that the petitioner did not commit the crime for which he or she was convicted;

(3)  contain the petitioner’s certification, under oath, that the petition is true and accurate; and

(4)  allege facts showing that DNA testing may be material to the petitioner’s claim of innocence.

(b)  As used in this section:

(1)  “Biological evidence” means:

(A)  a sexual assault forensic examination kit; or

(B)  semen, blood, saliva, hair, skin tissue, or other identified biological material.

(2)   “Person convicted of a qualifying crime” means a person convicted of:

(A)  one of the following crimes as defined in this title:

(1)  rson causing death, § 501;

(2)  assault and robbery with a dangerous weapon, § 608(b);

(3)  assault and robbery causing bodily injury, § 608(c);

(4)  aggravated assault, § 1024;

(5)  murder, § 2301;

(6)  manslaughter, § 2304;

(7)  aggravated murder, § 2311;

(8)  kidnapping, § 2405;

(9)  unlawful restraint, §§ 2406 and 2407;

(10)  maiming, § 2701;

(11)  sexual assault, § 3252;

(12)  aggravated sexual assault, § 3253;

(13)  burglary into an occupied dwelling, § 1201(c); or

(14)  lewd and lascivious conduct with a child; § 2602.

(B)  any felony not listed in subdivision (b)(1) of this section, if the petition is filed within 30 months after the conviction becomes final, the person presents specific facts demonstrating that DNA evidence will provide substantial evidence of the person’s innocence, and the court finds that the interests of justice would be served by permitting the petition.   

(c)(1)  The petition shall be filed in the superior court of the county where the conviction was imposed, and shall not be heard by a judge who presided over the trial, sentencing, or any motion hearing related to evidence to be admitted at the trial. 

(2)(A)  Unless subdivision (B) of this subdivision (2) applies, the petitioner shall provide copies of the petition to the attorney general and to the state’s attorney in the district where the conviction was obtained. 

(B)  If the petitioner is not represented by counsel, the court shall provide copies of the petition to the attorney general and to the state’s attorney in the district where the conviction was obtained.

(3)  Within 30 days after it receives the petition, the state shall agree to perform the requested DNA testing in a timely manner or file a response to the petition.  The petitioner may file a reply to the state’s response only within ten days after the response is filed. 

(4)  The court shall schedule a hearing on the petition within 90 days after the state’s response is filed unless the state notifies the court that it has agreed to provide the testing in a timely manner or the court dismisses the petition pursuant to subsection (c) of this section. 

(5)  Time limits under this subsection may be extended for good cause shown or by consent of the parties.

(c)  The court shall dismiss the petition without a hearing if it determines that:

(1)  the petition, response, reply if any, files, and records conclusively establish that the petitioner is entitled to no relief; or

(2)  the petition was not made to demonstrate innocence or the appropriateness of a lesser sentence and will unreasonably delay the execution of sentence or administration of justice.     

§ 5562.  ASSIGNMENT OF COUNSEL

The court may appoint counsel if the petitioner is unable financially to employ counsel and may order that all necessary costs and expenses incident to the matter, including but not limited to court costs, stenographic services, printing, and reasonable compensation for legal services, be paid by the state from the appropriation to the defender general.  On appeal, the supreme court may make a similar order.

§ 5563.  VICTIM NOTIFICATION

If the address of a victim of the crime which the petitioner claims to be innocent of in the petition is known, the state’s attorney or attorney general shall give written notice of a petition under this section to the victim as soon as the petition is received.  If the victim’s current address is not known, the state’s attorney or the attorney general shall consult with the department of corrections victim services division to verify the victim’s last known address.  The notice shall be by any reasonable means to the victim's last known address and shall indicate whether the petitioner is represented by public or private counsel.  Upon the victim's request, the state’s attorney or attorney general shall give the victim notice of the time and place of any hearing on the petition and shall inform the victim of the disposition of the petition and the outcome of any hearing.  If DNA testing is ordered, the state’s attorney or the attorney general shall inform the victim whether the test results require further court hearings, the time and place of any hearings, and the outcome of the hearings.

§ 5564.  DISCOVERY

(a)  Upon motion by the petitioner or the state, and after providing the nonmovant with reasonable opportunity to respond to the motion, the court may permit reasonable discovery and the right to depose witnesses.  The court in its discretion may delay ruling on any discovery motions until after it has determined whether to dismiss the petition pursuant to subsection 5561(c) of this section.  

(b)  A discovery order issued pursuant to this section may include the following:

(1)  The court may order the state to locate and provide the petitioner with any documents, notes, logs, or reports relating to items of physical evidence collected in connection with the case or to help the petitioner locate items of biological evidence that the state contends have been lost or destroyed.  The court may further order the state to take reasonable measures to locate biological evidence that may be in its custody or to help the petitioner locate evidence that may be in the custody of a public or private hospital, public or private laboratory, or other facility.

(2)  If evidence has previously been subjected to DNA testing, the court may order production of laboratory reports prepared in connection with the testing and may order production of the underlying data and the laboratory notes.

(3)  If any DNA or other biological evidence testing was previously conducted by either the prosecution or the defense without knowledge of the other party, the court may order that the previous testing be disclosed.

(4)  If the court orders DNA testing under this subchapter, the court shall order the production of any laboratory reports prepared in connection with the testing and may order production of the underlying data, bench notes, or other laboratory notes.

§ 5565.  PRESERVATION OF BIOLOGICAL EVIDENCE; POLICIES

The department of public safety shall disseminate policies regarding the collection and preservation of biological evidence to all state and local law enforcement agencies on or before July 1, 2007.  Law enforcement agencies shall adopt the policies distributed pursuant to this section, or adopt similar policies on a department-by-department basis.

§ 5566.  ORDER; NECESSARY FINDINGS; CONFIDENTIALITY

(a)  The court shall grant the petition and order DNA testing if it makes all of the following findings:

(1)  A reasonable probability exists that the petitioner would not have been convicted of the crime which the petitioner claims to be innocent of in the petition if the results of the requested DNA testing had been available at the time of the original prosecution.

(2)  One or more of the items of evidence that the petitioner seeks to have tested is still in existence.

(3)  The evidence to be tested was obtained in connection with the offense that is the basis of the challenged conviction and:

(A)  was not previously subjected to DNA testing; or

(B)  although previously subjected to DNA testing, can be subjected to additional DNA testing that provides a reasonable likelihood of significantly more probative results.

(4)(A)(i)  The chain of custody of the evidence to be tested establishes that the evidence has not been tampered with, replaced, or altered in any material respect; or

(ii)  If the chain of custody does not establish the integrity of the evidence, the testing itself has the potential to establish the integrity of the evidence.

(B)  For purposes of this subchapter, evidence that has been in the custody of a law enforcement agency, a governmental body, or a public or private hospital shall be presumed to satisfy the chain-of-custody requirement of this subdivision.

(b)  The court may designate in its order:

(1)  the type of DNA analysis to be used;

(2)  the testing procedures to be followed;

(3)  the preservation of some portion of the sample for replicating the testing;

(4)  additional DNA testing, if the results of the initial testing are inconclusive or otherwise merit additional scientific analysis.

(c)  DNA profile information from biological samples taken from any person pursuant to a petition under this subchapter shall be confidential and shall be exempt from any law requiring disclosure of information to the public.

§ 5567.  APPEALS

An order entered on the petition may be appealed to the Vermont supreme court pursuant to the Rules of Appellate Procedure.

§ 5568.  CHOICE OF LABORATORY; PAYMENT

(a)  If the court orders DNA testing under this subchapter, the testing shall be conducted at a facility mutually agreed upon by the petitioner and the state and approved by the court.  If the parties are unable to agree, the court shall designate the testing facility and provide the parties with a reasonable opportunity to be heard on the issue.

(b)  The court shall impose reasonable conditions on the testing to protect the parties’ interests in the integrity of the evidence and the testing process.

(c)(1)  The state shall bear the costs of testing performed at the state crime laboratory.

(2)  Except as provided in subdivision (3) of this subsection, the court may require the petitioner or the state or both to pay for testing performed at a private laboratory.

(3)  If the state crime laboratory does not have the ability or resources to conduct the type of DNA testing to be performed, the state shall bear the costs of testing at a private laboratory which does have such capabilities or resources.

§ 5569.  PROCEDURE AFTER TEST RESULTS OBTAINED

(a)  The results of any postconviction DNA testing conducted pursuant to this subchapter shall be disclosed to the state’s attorney, the attorney general, the petitioner, and the court.

(b)  If the results of forensic DNA testing ordered under this subchapter support the facts alleged in the petition, the court shall schedule a hearing as soon as practicable after the results are received to determine the appropriate relief to be granted.  The petitioner and the state shall be permitted to submit motions and be heard at the hearing.

(c)  At or subsequent to the hearing, the court may issue an order including but not limited to the following:

(1)  setting aside or vacating the petitioner’s judgment of conviction;

(2)  granting the petitioner a new trial;

(3)  granting the petitioner a new sentencing hearing;

(4)  discharging the petitioner from custody;

(5)  specifying the disposition of any evidence that remains after the completion of the testing;

(6)  granting the petitioner additional discovery on matters related to DNA test results or the conviction or sentence under attack, including documents pertaining to the original criminal investigation and the identities of other suspects; or

(7)  providing such other relief as the court deems appropriate.

(d)  If the person’s conviction is reversed or vacated or the person is pardoned as a result of DNA evidence:

(1)  The court shall order the removal and destruction of the person’s name and any information about that conviction from the sex offender registry established under section 5402 of this title, the child abuse registry established under section 4916 of Title 33, the vulnerable adult registry established under section 6911 of Title 33, and any other registry on which the person’s name appears solely because of his or her conviction of the offense for which the person’s actual innocence has been established.  If the person has more than one entry on a registry, only the entry related to the offense for which the person’s actual innocence has been established shall be removed and destroyed.

(2)  The court shall order the Vermont crime information center to remove and destroy any criminal records it has related to the person’s commission of the offense for which his or her actual innocence has been established.  If the center has records related to the person’s commission of other offenses, only the records related to the offense for which the person’s actual innocence has been established shall be removed and destroyed.

(3)  It shall not be a violation of Vermont law for the person to respond when asked, that he or she has never previously been convicted of a crime, and that his or her innocence of the crime charged has been established.  This subdivision shall not apply if the person has been convicted of a crime other than the one for which the person’s conviction was reversed or the person was pardoned as a result of DNA evidence.   

(e)  An order issued under this section may be appealed to the Vermont supreme court pursuant to the Rules of Appellate Procedure. 

§ 5570.  SUCCESSIVE PETITIONS

(a)  The court shall not be required to entertain a second or successive petition for similar relief on behalf of the same petitioner unless it appears the petition will be assisted by the availability of more advanced DNA technology.

(b)  The court may entertain a second or successive petition if it determines that doing so would serve the interests of justice.

Subchapter 2.  Compensation for Wrongful Convictions

§ 5572.  RIGHT OF ACTION; PROCEDURE

(a)  A person convicted and imprisoned for a crime of which the person was exonerated pursuant to subchapter 1 of this chapter shall have a cause of action for damages against the state.

(b)  An action brought under this subchapter shall be filed in Washington County superior court.  Notice of the action shall be served upon the attorney general.

(c)  The Vermont Rules of Civil Procedure shall apply to actions brought under this subchapter, and the plaintiff shall have a right to trial by jury.  The Vermont Rules of Appellate Procedure shall apply to appeals from orders and judgments issued under this subchapter.

(d)  The attorney general may consider, adjust, determine, and settle any claim for damages brought against the state of Vermont under this subchapter.

§ 5573.  COMPLAINT

(a)  A complaint filed under this subchapter shall be supported by facts and shall allege that:

(1)  the complainant has been convicted of a crime, been sentenced to a term of imprisonment, and served all or any part of the sentence; and

(2)  the complainant’s actual innocence has been established by DNA evidence which resulted in the person’s conviction being reversed or vacated or the granting of a pardon. 

(b)  The court may dismiss the complaint, upon its own motion or upon motion of the state, if it determines that the complaint does not state a claim for which relief may be granted.

§ 5574.  BURDEN OF PROOF; JUDGMENT; DAMAGES 

(a)  A claimant shall be entitled to judgment in an action under this subchapter if the claimant establishes each of the following by a preponderance of the evidence:

(1)  The complainant was convicted of a crime, was sentenced to a term of imprisonment, and served all or any part of the sentence.

(2)(A)  The complainant’s conviction was reversed or vacated; or

(B)  The complainant was pardoned for the crime for which he or she was sentenced.

(3)  DNA evidence establishes that the complainant did not commit the crime for which he or she was sentenced.

(4)  The complainant did not fabricate evidence or commit or suborn perjury during any proceedings related to the crime with which he or she was charged.

(b)(1) Except as provided in subdivision (2) of this subsection, a claimant awarded judgment in an action under this subchapter shall be entitled to damages for each year the claimant was incarcerated in an amount to be determined by the trier of fact and adjusted proportionally for partial years served.  The damage award may also include:

(A)  Economic damages, including lost wages and costs incurred by the claimant for his or her criminal defense and for efforts to prove his or her innocence.

(B)  Up to ten years of physical and mental health care through the state employees’ health care system, offset by any amount provided through the claimant’s employers during that time period.

(C)  Compensation for any reasonable reintegrative services and mental and physical health care costs incurred by the claimant for the time period between his or her release from mistaken incarceration and the date of the award.

(D)  Reasonable attorney’s fees and costs for the action brought under this subchapter.  

(2)  A claimant entitled to judgment under this section whose conviction resulted from a plea agreement shall only be eligible for the remedies provided by subdivisions (1)(B), (C), and (D) of this subsection. 

(c)  Damages awarded under this section:

(1)  shall not be subject to any state taxes, except for the portion of the judgment awarded as attorney’s fees; and

(2)  shall not be offset by any services awarded to the claimant pursuant to this section or by any expenses incurred by the state or any political subdivision of the state, including expenses incurred to secure or maintain the claimant’s custody or to feed, clothe, or provide medical services for the claimant.

(d)  The claimant’s acceptance of a damages award, compromise, or settlement as a result of a claim under this subchapter shall be in writing and, except when procured by fraud, shall be final and conclusive on the claimant, and constitute a complete release by the claimant of any claim against the state and a complete bar to any action by the claimant against the state with respect to the same subject matter. 

(e)  A claimant shall be entitled to compensation under this subchapter only if he or she would not otherwise have been incarcerated for another sentence.  

§ 5575.  PAYMENT

(a)  Any award made or compromise or settlement against the state of Vermont agreed upon by the attorney general in response to an action brought under this subchapter shall be paid by the state treasurer out of the treasury, and the emergency board shall reimburse the state treasurer therefor from time to time.

(b)  If the state elects to self‑insure for liability as defined in section 5601 of Title 12, any award, compromise, or settlement against the state of Vermont agreed to by the attorney general shall be paid by the treasurer from the liability self-insurance fund.

(c)  To the extent that an award, settlement, or compromise is covered by a policy of liability insurance, payment will be governed by the terms of the policy.

§ 5576.  LIMITATIONS

(a)  Except as provided in subsection (b) of this section, an action for wrongful conviction under this subchapter shall be commenced within three years after the person’s actual innocence is established by the person’s conviction being reversed or vacated or by the granting of a pardon.

(b)(1)  If the state challenges the establishment of the actual innocence of a person entitled to bring an action under this subchapter, the limitations period shall not commence until the challenge is finally resolved.

(2)  If a person entitled to bring an action under this subchapter is not provided the notice required by section 5586 of this title, the person shall have an additional year within which to bring the action.     

§ 5577.  NOTICE OF RIGHT OF ACTION

(a)  A copy of this subchapter shall be provided to a person by a court:

(1)  issuing judicial relief establishing the person’s actual innocence through vacating or reversing the person’s conviction; or

(2)  receiving notice of a pardon.

(b)  A person receiving a copy of this subchapter pursuant to subsection (a) of this section shall be required to acknowledge its receipt in writing on a form established by the court administrator.  The acknowledgement shall be entered on the docket by the court and shall be admissible in an action filed under this subchapter.

Sec. 2.  PRESERVATION OF EVIDENCE STUDY COMMITTEE

(a)  A committee is established for the purpose of studying issues related to the preservation of evidence in criminal cases.

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

(1)  one member appointed by the executive director of the department of state’s attorneys and sheriffs, who shall be the chair of the committee;

(2)  one district court clerk appointed by the court administrator;

(3)  the attorney general or designee;

(4)  one member appointed by the Vermont chiefs of police association;

(5)  the captain of the bureau of criminal investigations or designee;

(6)  one member appointed by the Vermont criminal justice training council;

(7)  the commissioner of public safety or designee;

(8)  the executive director of the Vermont crime laboratory or designee;

(9)  the defender general or designee;

(10)  an investigator appointed by the defender general; and

(11)  a staff public defender appointed by the defender general;

(12)  one member appointed by the Vermont sheriffs’ association;

(13)  one member appointed by the Vermont center for crime victims services.

(c)  The committee shall consider the following:

(1)  Current statewide policies regarding the preservation of evidence in criminal cases, and whether a statewide policy should be adopted;

(2)  Current policies in local jurisdictions regarding the preservation of evidence in criminal cases, and whether these policies are consistent with one another and with relevant statewide policies;

(3)  Best practices regarding the preservation of evidence in criminal cases;

(4)  The appropriate duration for preservation of evidence, with specific consideration of whether evidence should be preserved while a convicted person is incarcerated or while the person is under other forms of state supervision;

(5)  Whether and how advances in DNA testing technology should effect policies concerning preservation of evidence;

(6)  Whether current facilities provide enough space to preserve the evidence that needs to be preserved; and   

(7)  Whether there should be one central, statewide repository for evidence collected in criminal cases.

(d)  The committee shall have the assistance and cooperation of all state and local agencies and departments.  The committee shall consult with the Innocence Project.  The department of public safety shall provide professional and administrative support for the committee. 

(e)  The committee shall report its findings and recommendations, including proposals for legislative action, to the senate and house committees on judiciary no later than December 15, 2007 whereupon the committee shall cease to exist.

Sec. 3.  EYEWITNESS IDENTIFICATION AND CUSTODIAL

           INTERROGATION RECORDING STUDY COMMITTEE

(a)  A committee is established for the purpose of studying issues related to best practices regarding eyewitness identification procedures and audio and audio-visual recording of custodial interrogations.  The committee shall:

(1)  study and analyze federal and state models and develop best practices regarding:

(A)  audio and audio-visual recording of any custodial interrogations related to the investigation or prosecution of felonies; and

(B)  eyewitness identification procedures for conducting photo lineups and live lineups.

(2)  Study current statewide policies regarding eyewitness identification procedures for conducting photo lineups and live lineups and audio and

audio-visual recording of custodial interrogations, and whether statewide policies on these issues should be adopted; and

(3)  Study current policies in local jurisdictions regarding eyewitness identification procedures for conducting photo lineups and live lineups and audio and audio-visual recording of custodial interrogations, and whether these policies are consistent with one another and with relevant statewide policies.

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

(1)  one member appointed by the executive director of the department of state’s attorneys and sheriffs, who shall be the chair of the committee;

(2)  the attorney general or designee;

(3)  one member appointed by the Vermont chiefs of police association;

(4)  the captain of the bureau of criminal investigations or designee;

(5)  one member appointed by the Vermont criminal justice training council;

(6)  the commissioner of public safety or designee;

(7)  the defender general or designee;

(8)  an investigator appointed by the defender general;

(9)  a staff public defender appointed by the defender general;

(10)  one member appointed by the Vermont sheriffs’ association;

(11)  one member appointed by the Vermont center for crime victims services; and

(12)  one member appointed by the Vermont bar association.

(d)  The committee shall have the assistance and cooperation of all state and local agencies and departments.  The committee shall consult with the Innocence Project.  The department of public safety shall provide professional and administrative support for the committee. 

(e)  The committee shall report its findings and recommendations, including proposals for legislative action, to the senate and house committees on judiciary no later than December 15, 2007, whereupon the committee shall cease to exist.

(Committee vote: 10-0-1)

(For text see Senate Journal March 1, 2007 – pp. 205-215 )

S. 93

An act relating to miscellaneous changes to education law.

Rep. Donovan of Burlington, for the Committee on Education, recommends that the House propose to the Senate that the bill be amended as follows:

First:  By striking Secs. 3 and 3a in their entirety and inserting in lieu thereof the following: 

Sec. 3.  [Deleted.]

Sec. 3a.  [Deleted.]

Second:  By adding a new section to be Sec. 6a to read:

Sec. 6a.  16 V.S.A. § 823(a) is amended to read:

§ 823.  ELEMENTARY TUITION

(a)  Tuition for elementary pupils shall be paid by the district in which the pupil is a resident.  The district shall pay the full tuition charged its students attending a public elementary school.  However, if If a payment made to a public elementary school is three percent more or less than the calculated net cost per elementary pupil in the receiving school district for the year of attendance, the district shall be reimbursed, credited, or refunded pursuant to section 836 of this title, unless otherwise agreed to by.  Notwithstanding the provisions of this subsection or of subsection 825(b) of this title, the boards of both the receiving and sending districts may enter into tuition agreements with terms differing from the provisions of those subsections, provided that the receiving district must offer identical terms to all sending districts, and further provided that the statutory provisions apply to any sending district that declines the offered terms.

Third:  By striking Sec. 8 in its entirety and inserting a new Sec. 8 to read:

Sec. 8.  [Deleted.]

Fourth:  By striking Sec. 10 in its entirety and inserting a new Sec. 10 to read:

Sec. 10.  16 V.S.A. § 4028(c) is amended to read: 

(c)  Any district which has adopted a school budget that includes excess spending, as defined in 32 V.S.A. § 5401(12), shall, upon timely notice, be authorized to use a portion of its excess spending penalty in obtaining an education operations consultant, as follows:  The district may employ a consultant for recommendations on how to reduce its future education spending, and the department of education shall pay the consulting costs from the property tax revenue to be generated by the excess spending increase to the district’s spending adjustment as estimated by the commissioner, up to a maximum of $5,000.00.  “Timely notice” for this purpose means written notice from the district to the commissioner within 60 days after the budget is adopted.  The consultant may not be an employee of the district or of the department of education.  A copy of the consultant’s final recommendations shall be submitted to the commissioner, and each affected town shall include in its next town report an executive summary of the consultant’s final recommendations and notice of where a complete copy is available.  No district is authorized to obtain consulting funds under this section more often than once every five years.

(c)(1)  Any district that has adopted a school budget which includes high spending, as defined in 32 V.S.A. § 5401(12), shall, upon timely notice, be authorized to use a portion of its high spending penalty to reduce future education spending as follows:

(A)  By entering into a contract with an education operations or budget consultant.

(B)  By entering into a contract with an energy or facilities management consultant.

(C)  By engaging in discussions with other school districts about reorganization or consolidation for better service delivery at a lower cost. 

(2)  To the extent approved by the commissioner, the department shall pay the district from the property tax revenue to be generated by the high spending increase to the district’s spending adjustment as estimated by the commissioner, up to a maximum of $5,000.00.  For the purposes of this subsection, “timely notice” means written notice from the district to the commissioner by September 30 of the budget year.  If the district enters into a contract with a consultant pursuant to this subsection, the consultant shall not be an employee of the district or of the department of education.  A copy of the consultant’s final recommendations or a copy of the district’s recommendations regarding reorganization, as appropriate, shall be submitted to the commissioner, and each affected town shall include in its next town report an executive summary of the consultant’s or district’s final recommendations and notice of where a complete copy is available.  No district is authorized to obtain funds under this section more than once in every five years.

Fifth:  By striking Sec. 12 in its entirety and inserting in lieu thereof a new Sec. 12 to read:

Sec. 12.  SCHOOL DISTRICTS; ANALYSIS AND RECOMMENDATIONS REGARDING HIGH SPENDING

(a)  The commissioner of education shall explore and analyze the reasons school districts exceed the excess spending threshold defined in 32 V.S.A. § 5401(12) and develop recommendations for exempting school districts from the consequences of exceeding the excess spending threshold in the following circumstances:

(1)  The district has high costs for special education services, the department has recommended ways to lower the costs, the district has followed the recommendations, and the district still exceeds the threshold; or

(2)  The district has high costs for special education services, the department has been unable to identify ways to lower the costs, and the district still exceeds the threshold; or

(3)  The district pays tuition for all or most of its students to attend one or more schools outside the district and the commissioner determines that it is not possible for the district to make alternative arrangements that would enable it to stay beneath the high spending threshold.

(b)  On or before January 15, 2008, the commissioner shall file a report with the house and senate committees on education and on appropriations regarding the recommendations required by this section.  The report shall include a detailed fiscal analysis of the recommendations and related draft legislation.  It shall also include an analysis of the effectiveness of 16 V.S.A. § 4028(c), which permits high spending districts to hire a budget consultant with money paid as a consequence of exceeding the threshold.

Sixth:  By striking Sec. 13 in its entirety and inserting in lieu thereof two new sections to be Secs. 13 and 13a to read:

Sec. 13.  16 V.S.A. § 2975 is added to read:

§ 2975.  UNUSUAL SPECIAL EDUCATION COSTS; FINANCIAL ASSISTANCE

The commissioner may use up to two percent of the funds appropriated for special education expenditures, as that term is defined in subsection 2967(b) of this title, to directly assist school districts with special education expenditures of an unusual or unexpected nature.  These funds shall not be used for exceptional circumstances that are funded under section 2963a of this title.  The commissioner’s decision regarding a district’s eligibility for and amount of assistance shall be final.

Sec. 13a.  REPEAL

Sec. 9(a) of No. 117 of the Acts of the 1999 Adj. Sess. (2000) (financial assistance for unusual special education costs), as amended by Sec. 18 of No. 107 of the Acts of the 2003 Adj. Sess. (2004), is repealed.

Seventh:  By striking Sec. 16 in its entirety and adding new six new sections to be Secs. 16‑21 to read:

Sec. 16.  16 V.S.A. § 4001(1) is amended to read: 

(1) “Average daily membership” of a school district, or if needed in order to calculate the appropriate homestead tax rate, of the municipality as defined in 32 V.S.A. § 5401(9), in any year means:

(A)  the full‑time equivalent enrollment of pupils, as defined by the state board by rule, who are legal residents of the district or municipality attending a school owned and operated by the district, attending a public school outside the district under an interdistrict agreement, or for whom the district pays tuition to one or more approved independent schools or public schools outside the district during the annual census period.  The census period consists of the first 40 days 11th day through the 31st day of the school year in which school is actually in session; and

(B)  the full‑time equivalent enrollment in the year between the end of before the last census period and the end of the current census period, of any state‑placed students as defined in subdivision 11(a)(28) of this title.  A school district which provides for the education of its students by paying tuition to an approved independent school or public school outside the district shall not count a state‑placed student for whom it is paying tuition for purposes of determining average daily membership.  A school district which is receiving the full amount, as defined by the state board by rule, of the student’s education costs under subsection 2950(a) of this title, shall not count the student for purposes of determining average daily membership.  A state‑placed student who is counted in average daily membership shall be counted as a student for the purposes of determining weighted student count.

Sec. 17.  16 V.S.A. § 4010(h) is added to read:

§ 4010.  DETERMINATION OF WEIGHTED MEMBERSHIP

* * *

(h)  On December 1 each year, the commissioner shall determine the equalized pupil count for the next fiscal year for district review.  The commissioner shall make any necessary corrections on or before December 15, on which date the count shall become final for that year.

Sec. 18.  STATEWIDE NETWORK FOR DISTANCE LEARNING

(a)  The department of education shall examine, analyze, and make recommendations concerning a process by which the state could develop a statewide, managed network offering shared, high‑quality distance‑learning opportunities to all Vermont schools through accredited, online course offerings from nationally recognized distance learning schools and through Vermont‑based distance learning courses.

(b)  The department shall present its analysis and recommendations in the form of a report to the general assembly on or before January 1, 2008.  The report shall:

(1)  Explain the impediments that have prevented the creation of this network and describe how the department would overcome these impediments.

(2)  Outline in detail a process by which the department would create a network of high‑quality distance‑learning opportunities for all Vermont schools, which would include:

(A)  A professional development program to improve the skills of Vermont educators in creating course offerings and overseeing the distance learning system.

(B)  A warehouse of content‑based, electronic resources for educators.

(C)  Shared infrastructure services such as e‑mail, content filtering, spam filtering, and security services.

(3)  Include a detailed fiscal analysis of the funding required for initial and ongoing implementation of the proposed network, including proposed sources of funding.

(4)  Include a detailed timeline for implementation.

Sec. 19.  PREGNANT AND PARENTING PUPILS ATTENDING TEEN PARENT EDUCATION PROGRAMS

(a)  Subject to the provisions of subsection (b) of this section, a school district of residence shall make the following payments for a publicly funded pregnant or parenting pupil attending a teen parent education program: 

(1)  The school district shall pay the teen parent education program 83 percent of the base education payment for the year of attendance prorated based on the pupil’s full‑time equivalent enrollment, as defined by state board rule, in academic courses at the teen parent education program.

(2)  If the district of residence does not maintain a school, the otherwise qualified pregnant or parenting pupil may enroll in any public school or approved independent school (the “enrolling school”) in which any other legal pupil in the district of residence may enroll at public expense.  In this situation, the district of residence shall reimburse the enrolling school for coordinating the pregnant or parenting pupil’s education plan at the teen parent education program and for planning and facilitating the pupil’s subsequent education plan and transition to the enrolling school, at a rate of 17 percent of the base education payment for the year in which the pupil attends the teen parent education program.

(b)(1)  The pregnant or parenting pupil must be enrolled in a school maintained by the school district of residence or, if the district does not maintain a school, enrolled at a public school or an approved independent school at the district’s expense. 

(2)  The teen parent education program must be recognized by the department for children and families.

(3)  As determined by the district of residence or by the enrolling school if the district does not maintain a school, the pupil must be taking academic courses at the teen parent education program that are the substantial equivalent of the courses required by the district of residence or enrolling school, as applicable, to obtain a high school diploma.  The sending district or enrolling school, as applicable, will collaborate with the teen parent education program regarding the pupil’s programs and progress.

(4)  In the event of a dispute, the pupil, the teen parent education program, the district of residence, or the enrolling school may request a ruling from the commissioner of education which shall be final.

(5)  On or before January 8, 2008, the commissioner of education shall report to the house and senate committees on education regarding information gathered from the teen parent education programs and recommendations for future legislation.  The report shall include an overview of the pupils served, current funding mechanisms, and a description of the academic resources offered by the programs.  The report shall also include data regarding the pupils’ educational success rates, including the number of pupils taking academic courses at the teen parent programs, the number of courses taken by the pupils, the number of pupils who remain in the program and the number who drop out, the number of pupils who return to the school in their district of residence or to the enrolling school, and the number of pupils who obtain a high school diploma or GED after receiving services at the teen parent education center.

Sec. 20.  Sec. 168a of No. 122 of the Acts of the 2003 Adj. Sess. (2004) is amended to read:

Sec. 168a.  SCHOOL DISTRICT CONSOLIDATION; TRANSITION AID;
       APPROPRIATION SUNSET

(a)  In its first year of operation After voter approval of the establishment of a union, unified union, or interstate school district, the commissioner of education shall pay to a joint contract, the board of the union, unified union, or interstate school district which began operation during or after school year 2003‑2004 a facilitation grant of five percent of the base education payment amount in 16 V.S.A. § 4001(13) based on October 1 enrollment for that year the combined enrollment of the participating districts on October 1 of the year in which the successful vote was taken or $150,000.00, whichever is less, from the education fund.  The funds grant shall be in addition to funds received under 16 V.S.A. § 4028 and for districts beginning operation during or after school year 2004‑2005 shall be paid in thirds in the same manner that other state education aid is paid under that section

(b)  This section shall sunset on June 30, 2008 2010.

Sec. 21.  EFFECTIVE DATES; SUNSET

(a)  Sec. 19 shall take effect on July 1, 2007 and shall remain in effect until July 1, 2008.

(b)  All other sections of this act shall take effect on July 1, 2007.

(Committee vote: 10-1-0)                                   (No Senate Amendments)

S. 137

An act relating to reducing the amount of phosphorus allowed in household cleansing products used in dishwashers.

Rep. Martin of Springfield, for the Committee on Fish, Wildlife and Water Resources, recommends that the House propose to the Senate that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  10 V.S.A. § 1382 is amended to read:

§ 1382.  PROHIBITIONS

(a)  No household cleansing products except those used in dishwashers, for cleansing medical and surgical equipment, food and beverage processing equipment, and dairy equipment may be distributed, sold, offered, or exposed for sale at retail, after April 1, 1978, or at wholesale, after January 1, 1978, or used in a commercial establishment in this state, after April 1, 1978, which shall contain a phosphorus compound in concentrations in excess of a trace quantity.

(b)  No household cleansing products used in dishwashers, for cleansing medical and surgical equipment and food and beverage processing equipment, may be distributed, sold, offered, or exposed for sale at retail, after April 1, 1978, or at wholesale, after January 1, 1978, or used in a commercial establishment in this state, after April 1, 1978, which shall contain a phosphorus compound in concentrations in excess of 8.7 percent by weight expressed as elemental phosphorus. 

(a)  No household cleansing products containing a phosphorus compound in concentrations in excess of a trace quantity may be distributed, sold, offered for sale at retail or wholesale, exposed for sale at retail or wholesale, or used in a commercial establishment in this state, except as set forth in subsections (b) and (c) of this section.

(b)  No household cleansing product used in a dishwasher in a commercial establishment, used to cleanse food and beverage processing equipment, including dishes, pots, pans and utensils, used to cleanse medical or surgical equipment, or used to cleanse dairy equipment may be distributed, sold, offered for sale at retail or wholesale, exposed for sale at retail or wholesale, or used in a commercial establishment if it contains a phosphorus compound in concentrations in excess of 8.7 percent by weight expressed as elemental phosphorus.

(c)  As of July 1, 2010, no household cleansing product used in a residential dishwasher may be distributed, sold, offered for sale at retail or wholesale, or exposed for sale at retail or wholesale if it contains a phosphorus compound in concentrations in excess of a trace quantity, except for product inventory purchased by retailers prior to July 1, 2010.

(c) (d)  The provisions of this section shall not be construed to limit the phosphorus content of household cleansing products used in agricultural production and for cleansing equipment used in processing of agricultural products.

(d) (e)  The provisions of this section shall not be construed to limit the phosphorus content of household cleaning products approved by the commissioner of health for use in lead hazard management projects.

(Committee vote: 9-0-0)            (No Senate Amendments)

Favorable

H. 330

     An act relating to repeal of the law relating to municipal trailer park ordinances.

Rep. Valliere of Barre City, for the Committee on General, Housing and Military Affairs, recommends the bill ought to pass.

( Committee Vote: 7-0-1)

S. 52

An act relating to motor vehicles, snowmobiles, motorboats, and all-terrain vehicles.

Rep. Minter of Waterbury, for the Committee on Transportation, recommends that the bill ought to pass in concurrence.

(Committee Vote: 11-0-0)          (No Senate Amendments)

S. 128

An act relating to certain sunsets on forensic examinations at designated hospitals.

Rep. Mrowicki, for the Committee on Human Services, recommends that the bill ought to pass in concurrence.

(Committee Vote: 10-0-1)          (No Senate Amendments)

Senate Proposals of Amendment

H. 296

     An act relating to potable water supply and wastewater system permitting.

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

First:  By striking out Sec. 1 in its entirety

Second:  By striking Sec. 6 in its entirety and inserting in lieu thereof the following:

Sec. 6.  TRANSITION PROVISIONS

(a)  Notwithstanding any other provision of law, no permit or permit amendment shall be required for the design and installation of a replacement potable water supply serving only one single‑family residence on its own individual lot, provided:

(1)  the design and installation is performed in accordance with the Vermont Water Supply Rules;

(2)  a form provided by the secretary regarding the replacement well is recorded and indexed in the land records for the municipality where the project is located; and

(3)  no other action has been taken or has been caused to be taken that would require a permit under these rules.

(b)  This section shall remain in effect only until the date that the proposed revisions to the wastewater system and potable water supply rules have taken effect.

Sec. 7.  Effective DATE

This act shall take effect upon passage.

and by renumbering the remaining sections to be numerically correct.

 (For text see House Journal 3/27/07 – pp. 417-423)

H. 313

     An act relating to the administration and enforcement of fines within the judicial bureau.

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

Sec. 1.  4 V.S.A. § 1105 is amended to read:

§ 1105.  ANSWER TO COMPLAINT; DEFAULT

(a)  A violation shall be charged upon a summons and complaint form approved and distributed by the court administrator.  The complaint shall be signed by the issuing officer or by the state’s attorney.  The original shall be filed with the judicial bureau, a copy shall be retained by the issuing officer or state’s attorney and two copies shall be given to the defendant.  The complaint shall include a statement of rights, instructions, notice that a defendant may admit, not contest, or deny a violation, notice of the fee for failure to answer within 20 days, and other notices as the court administrator deems appropriate.  The court administrator, in consultation with appropriate law enforcement agencies, may approve a single form for charging all violations, or may approve two or more forms as necessary to administer the operations of the judicial bureau.

(b)  A person who is charged with a violation shall have 20 days from the date the complaint is issued to admit or deny the allegations or to state that he or she does not contest the allegations in the complaint.  The judicial bureau shall assess against a defendant a fee of $10.00 for failure to answer a complaint within the time allowed.  The fee shall be assessed in the default judgment and deposited in the court technology special fund established pursuant to section 27 of this title.

(c)  A person who admits or does not contest the allegations may so indicate and sign the complaint.  The bureau shall accept the admission or statement that the allegations are not contested and accept payment of the waiver penalty.

(d)  If the person sends in the amount of the waiver penalty without signing the complaint, the bureau shall accept the payment indicating that payment was made and that the allegations were not contested.

(e)  A person who denies the allegations may so indicate and sign the complaint.  Upon receipt, the bureau shall schedule a hearing.

(f)  If a person fails to appear or answer a complaint the bureau shall enter a default judgment against the person.  The bureau shall mail a notice to the person that a default judgment has been entered.  A default judgment may be set aside by the hearing officer for good cause shown.

(g)  All judicial bureau judgments shall contain a notice of tax setoff pursuant to 32 V.S.A. § 5941.

Sec. 2.  4 V.S.A. § 1109 is added to read:

§ 1109.  REMEDIES FOR FAILURE TO PAY

(a)  As used in this section:

(1)  “Amount due” means all financial assessments contained in a judicial bureau judgment, including penalties, fines, surcharges, court costs, and any other assessment authorized by law.

(2)  “Designated collection agency” means a collection agency designated by the court administrator.

(3)  “Designated credit bureau” means a credit bureau designated by the court administrator or the court administrator’s designee.

(b)  A judicial bureau judgment shall provide notice that a $15.00 fee shall be assessed for failure to pay within 30 days.  If the defendant fails to pay the amount due within 30 days, the fee shall be added to the judgment amount and deposited in the court technology special fund established pursuant to section 27 of this title.

(c)  Civil contempt proceedings.  If an amount due remains unpaid for 75 days after the judicial bureau provides the defendant with a notice of judgment, the judicial bureau may initiate civil contempt proceedings pursuant to this subsection.

(1)  Notice of hearing.  The judicial bureau shall provide notice by first class mail sent to the defendant’s last known address that a contempt hearing will be held pursuant to this subsection, and that failure to appear at the contempt hearing may result in the sanctions listed in subdivision (2) of this subsection.

(2)  Failure to appear.  If the defendant fails to appear at the contempt hearing, the hearing officer may direct the clerk of the judicial bureau to:

(A)  cause the matter to be reported to one or more designated credit bureaus; or

(B)  refer the matter to district court for contempt proceedings.

(3)  Hearing.  The hearing shall be conducted in a summary manner.  The hearing officer shall examine the defendant and any other witnesses and may require the defendant to produce documents relevant to the defendant’s ability to pay the amount due.  The state or municipality shall not be a party except with the permission of the hearing officer.  The defendant may be represented by counsel at the defendant’s own expense.

(4)  Contempt.

(A)  The hearing officer may conclude that the defendant is in contempt if the hearing officer states in written findings a factual basis for concluding that:

(i)  the defendant knew or reasonably should have known that he or she owed an amount due on a judicial bureau judgment;

(ii)  the defendant had the ability to pay all or any portion of the amount due; and

(iii)  the defendant failed to pay all or any portion of the amount due.

(B)  In the contempt order, the hearing officer may do one or more of the following:

(i)  Set a date by which the defendant shall pay the amount due.

(ii)  Assess an additional penalty not to exceed ten percent of the amount due.

(iii)  Direct the clerk of the judicial bureau to cause the matter to be reported to one or more designated credit bureaus.  The court administrator or the court administrator’s designee is authorized to contract with one or more credit bureaus for the purpose of reporting information about unpaid judicial bureau judgments.

(iv)  Recommend that the district court incarcerate the defendant until the amount due is paid.  If incarceration is recommended pursuant to this subdivision (4), the judicial bureau shall notify the district court that contempt proceedings should be commenced against the defendant.  The district court proceedings shall be de novo.  If the defendant cannot afford counsel for the contempt proceedings in district court, the defender general shall assign counsel at the defender general’s expense.

(d)  Collections.

(1)  If an amount due remains unpaid after the issuance of a notice of judgment, the court administrator may authorize the clerk of the judicial bureau to refer the matter to a designated collection agency.

(2)  The court administrator or the court administrator’s designee is authorized to contract with one or more collection agencies for the purpose of collecting unpaid judicial bureau judgments pursuant to 13 V.S.A. § 7171.

(e)  For purposes of civil contempt proceedings, venue shall be statewide.

(f)  Notwithstanding 32 V.S.A. § 502, the court administrator is authorized to contract with a third party to collect fines, penalties, and fees by credit card, debit card, charge card, prepaid card, stored value card, and direct bank account withdrawals or transfers, as authorized by 32 V.S.A. § 583, and to add on and collect, or charge against collections, a processing charge in an amount approved by the court administrator.

Sec. 3.  4 V.S.A. § 1110 is added to read:

§ 1110.  Licenses or governmental contracts

(a)  As used in this section:

(1)  “Agency” means any unit of state government, including agencies, departments, boards, commissions, authorities, or public corporations.

(2)  “Contract” means a contract for the provision of goods, services, or real estate space.

(3)  “License” means any license, certification or registration issued by an agency to conduct a trade or business, including a license to practice a profession or occupation, or a license required to engage in recreational activities, including licenses to hunt, fish, or trap.

(b)  Every applicant for a license shall sign a statement that the applicant is in good standing with respect to any unpaid judgment issued by the judicial bureau or district court for fines or penalties for a violation or criminal offense.  A license may not be issued or renewed without such a statement.

(c)  No agency shall enter into, extend, or renew any contract unless the person submits a statement that the person is in good standing with respect to any unpaid judgment issued by the judicial bureau or district court for fines or penalties for a violation or criminal offense as of the date the contract is made.

(d)  For the purposes of this section, a person is in good standing with respect to any unpaid judgment issued by the judicial bureau or district court for fines or penalties for a violation or criminal offense if:

(1)  60 days or fewer have elapsed since the date a judgment was issued; or

(2)  the person is in compliance with a repayment plan approved by the judiciary.

Sec. 4.  13 V.S.A. § 7171 is amended to read:

§ 7171.  Collection by complaint, information, or indictment

(a)  Fines, forfeitures, and penalties incurred or imposed by statute may be recovered by complaint, information, or indictment, unless some other mode of recovery is specially provided.

(b)  The attorney general court administrator is authorized to contract with private collection agencies for collection of fines, forfeitures, fees and penalties, fines, surcharges, court costs, and any other assessment authorized by law incurred or imposed by statute on persons who have failed to pay after reasonable notification of the debt, and the risk that the debt may be referred to a collection agency and that the debtor will be liable for the collection agency’s fee.  The attorney general and the court administrator may agree to pay collection agencies a fee based on a fixed rate for services rendered or a percentage of the amount actually collected by such agencies and remitted to the state.  Notwithstanding 32 V.S.A. § 502, the attorney general may charge against such collections an agreed‑upon fixed rate or percentage of collections  The debtor shall be liable for the collection agency’s fee, in addition to the judgment amount.  The collection agency shall deduct its fee from the collected amount and remit the balance to the judiciary.  All collection agency fees shall be governed by the contract with the court administrator and shall be clearly disclosed in all notices sent by the collection agency to the debtor.

Sec. 5.  23 V.S.A. § 2307 is amended to read:

§ 2307.  REMEDIES FOR FAILURE TO PAY TRAFFIC VIOLATIONS

(a)  As used in this section:,

(1)  “Amount “amount due” means all financial assessments contained in a judicial bureau judgment, including penalties, fines, surcharges, court costs, and any other assessment authorized by law.

(2)  “Designated collection agency” means a collection agency designated by the court administrator.

(3)  “Designated credit bureau” means a credit bureau designated by the court administrator or the court administrator’s designee.

(b)  Notice of risk of suspension.  A judgment for a traffic violation shall contain a notice that failure to pay or otherwise satisfy the amount due within 20 30 days of the notice will result in suspension of the person’s operator’s license or privilege to operate, and the denial, if the person is the sole registrant, of the person’s application for renewal of a motor vehicle registration, until the amount due is paid or otherwise satisfied.  If the defendant fails to pay the amount due within 20 30 days of the notice and the case is not pending on appeal, the judicial bureau shall provide electronic notice thereof to the commissioner of motor vehicles who, after 20 days from the date of receiving the electronic notice, shall suspend the person’s operator’s license or privilege to operate and deny, if the person is the sole registrant, the person’s application for renewal of a motor vehicle registration until the amount due is paid or otherwise satisfied. 

(c)  Civil contempt proceedings.  If an amount due remains unpaid for 45 days after the judicial bureau provides the defendant with a notice of risk of suspension pursuant to subsection (b) of this section, the judicial bureau may initiate civil contempt proceedings pursuant to this subsection.  During proceedings conducted pursuant to 4 V.S.A. § 1109, the hearing officer may apply the following mitigation remedies when the judgment is based upon a traffic violation:

(1)  Notice of hearing.  The judicial bureau shall provide notice by first class mail sent to the defendant’s last known address that a contempt hearing will be held pursuant to this subsection and that failure to appear at the contempt hearing may result in the sanctions listed in subdivision (c)(2) of this section and subject to procedures for tax setoffs under 32 V.S.A. § 5941.

(2)  Failure to appear.  If the defendant fails to appear at the contempt hearing, the hearing officer may direct the clerk of the judicial bureau to:

(A)  cause the matter to be reported to one or more designated credit bureaus; or

(B)  refer the matter to district court for contempt proceedings.

(3)  Hearing.  The hearing shall be conducted in a summary manner.  The hearing officer shall examine the defendant and any other witnesses and may require the defendant to produce documents relevant to the defendant’s ability to pay the amount due.  The state or municipality shall not be a party except with the permission of the hearing officer.  The defendant may be represented by counsel at the defendant’s own expense.

(4)  Mitigation remedies.

(A)(1)  The hearing officer may waive the reinstatement fee required by section 675 of this title or reduce the amount due on the basis of:

(i)(A)  the defendant’s driving history, ability to pay, or service to the community;

(ii)(B)  the collateral consequences of the violation; or

(iii)(C)  the interests of justice.

(B)(2)  The hearing officer may specify a date by which the defendant shall pay the amount due and may notify the commissioner of motor vehicles to reinstate the defendant’s operator’s license or privilege subject to payment of the amount due by the specified date.  If the defendant fails to pay the amount due by the specified date, the judicial bureau may notify the commissioner to suspend the defendant’s operator’s license or privilege.  A license may be reinstated under this subdivision only if the defendant’s license is suspended solely for failure to pay a judicial bureau judgment.

(C)(3)  The judicial officer shall have sole discretion to determine mitigation remedies pursuant to this subdivision, and the judicial officer’s determination shall not be subject to review or appeal in any court, tribunal, or administrative office.

(5)  Contempt.

(A)  The hearing officer may conclude that the defendant is in contempt if the hearing officer states in written findings a factual basis for concluding that:

(i)  The defendant knew or reasonably should have known that he or she owed an amount due on a judicial bureau judgment;

(ii)  The defendant had the ability to pay all or any portion of the amount due; and

(iii)  The defendant failed to pay all or any portion of the amount due.

(B)  The hearing officer may in the contempt order do one or more of the following:

(i)  Set a date by which the defendant shall pay the amount due;

(ii)  Assess an additional penalty not to exceed ten percent of the amount due;

(iii)  Direct the clerk of the judicial bureau to cause the matter to be reported to one or more designated credit bureaus.  The court administrator or the court administrator’s designee is authorized to contract with one or more credit bureaus for the purpose of reporting information about unpaid judicial bureau judgments; and

(iv)  Recommend that the district court incarcerate the defendant until the amount due is paid.  If incarceration is recommended pursuant to this subdivision, the judicial bureau shall notify the district court that contempt proceedings should be commenced against the defendant.  If the defendant cannot afford counsel for the contempt proceedings in district court, the defender general shall assign counsel at the defender general’s expense.

(d)  Collections.

(1)  If an amount due remains unpaid for one year after the issuance of a notice of risk of suspension pursuant to subsection (b) of this section and the defendant has failed to appear at a judicial bureau contempt hearing, the court administrator may authorize the clerk of the judicial bureau to refer the matter to a designated collection agency.

(2)(A)  The court administrator or the court administrator’s designee is authorized to contract with one or more collection agencies for the purpose of collecting unpaid judicial bureau judgments.

(B)  The court administrator may authorize a collection agency to settle a judicial bureau judgment for less than the amount due and to retain a portion of the amount collected for its services.  The judgment amount shall be reduced in the judicial bureau records to reflect the settlement amount and the fee retained by the collection agency.

(e)  For purposes of civil contempt proceedings, venue shall be statewide.

(f)  Notwithstanding 32 V.S.A. § 502, the court administrator is authorized to contract with a third party to collect fines, penalties, and fees by credit card, debit card, charge card, prepaid card, stored value card, and direct bank account withdrawals or transfers, as authorized by 32 V.S.A. § 583, and to add on and collect a processing charge in an amount approved by the court administrator.

Sec. 6.  23 V.S.A. § 305a is added to read:

§ 305a.  –WHEN NOT ISSUED

The commissioner shall not renew the registration of a person who is the sole registrant after receiving notice from the judicial bureau that the person has not paid a judgment for a traffic violation.

Sec. 7.  32 V.S.A. § 509a is added to read:

§ 509a.  Judiciary overpayment; refund

Notwithstanding the provisions of section 509 of this title, when a person who owes money to the judiciary makes an overpayment, the judiciary shall forthwith refund to that person the amount of such overpayment; however, there shall be no obligation to refund sums in the amount of $10.00 or less.  If a person is owed a refund of more than $10.00 and cannot be located by the judiciary, the refund shall be submitted to the abandoned property procedure.  For refunds of $10.00 or less which are not demanded by the person within a year after the payment, the refund shall revert to the state and be deposited into the revenue fund where the original payment was deposited. 

Sec. 8.  32 V.S.A. § 583 is amended to read:

§ 583.  Credit card payments

(a)  A statewide officer or secretary of a state agency, commissioner of a state department, or the court administrator may accept payment of taxes, registration fees, license fees, penalties, fines, interest, charges, surcharges, or any other fees or amounts due the state by means of credit cards, debit cards, charge cards, prepaid cards, stored value cards, and direct bank account withdrawals or transfers.

(b)  The court administrator may not accept credit cards, debit cards, charge cards, prepaid cards, stored value cards, and direct bank account withdrawals or transfers for payments of fines, penalties or surcharges assessed by a circuit of the district court.  However, the court administrator may accept credit cards, debit cards, charge cards, prepaid cards, stored value cards, and direct bank account withdrawals or transfers for any payments to the Chittenden, Essex, and Washington circuits of the district court.

(c)  The state treasurer shall negotiate and contract with banks and bank credit card companies or others to provide as a method of payment to state agencies, or departments, or the judiciary the use of credit card or debit card accounts or direct bank account withdrawals or transfers, and may agree to pay such bank or other company a fee or percentage of the amount collected and remitted to the state.  The court administrator may so contract for the judiciary with the approval of the state treasurer.  Notwithstanding section 502 of this title, an agency, a department, or the judiciary may charge against such collections the percentage or fee imposed.

(d)(c)  The state treasurer shall assist each statewide officer, secretary, commissioner, and court administrator who elects to accept payments, as authorized by this section, with establishing procedures for accepting those payments.

(e)(d)  A statewide officer or secretary of a state agency, a commissioner of a state department, or the court administrator who has authority to accept payment of fees, penalties, fines, charges, surcharges, or any other amounts due the state by a credit card, debit card, charge card, prepaid card, or stored value card shall not charge or collect any additional amounts for using such card to make the payment unless the agency develops a policy regarding additional charges.  Each policy and recommended charge, except that which is adopted and recommended by the court administrator, shall be approved by the secretary of administration prior to applying the charge.  Any such charge shall approximate the cost of providing the service. 

(f)(e)  By January 15 of each year, the treasurer, with the assistance of the court administrator, shall file a report with the general assembly and the joint fiscal committee which:

* * *

Sec. 9.  DEBT COLLECTION BY JUDICIARY

The court administrator is authorized to send a notice to defendants who have failed to pay judicial bureau and district court judgments issued prior to September 25, 2006 to inform them of the judiciary’s intent to collect the debt through any authorized means, and that the debt will be subject to procedures for tax setoffs under 32 V.S.A. § 5941.  Concurrent with providing the notice to the debtor, the judiciary shall assess a $10.00 collection fee which shall be added to the judgment amount and deposited in the court technology special fund established pursuant to 4 V.S.A. § 27.  If the defendant satisfies the judgment within 20 days, the fee shall be waived.  The court administrator may charge the cost of preparing and sending the notice against revenues collected in this effort.  This authorization shall expire on June 30, 2009.

Sec. 10.  12 V.S.A. § 5540a is amended to read:

§ 5540a.  JURISDICTION OVER SMALL CLAIMS; ASSISTANT JUDGES; ADDISON, CHITTENDEN, FRANKLIN, GRAND ISLE, LAMOILLE, ORANGE, ORLEANS, WASHINGTON, WINDHAM, AND WINDSOR COUNTIES

(a)  Subject to the limitations in this section and notwithstanding any provision of law to the contrary, assistant judges of Addison, Chittenden, Franklin, Grand Isle, Lamoille, Orange, Orleans, Washington, Windham, and Windsor counties sitting alone shall hear and decide small claims actions filed under this chapter with the appropriate superior court if the assistant judges first elect to successfully complete the training required in subsection (b) of this section.

(b)  With the exception of assistant judges authorized to preside in small claims matters prior to the effective date of this act who have successfully completed the testing requirements established herein, an assistant judge hearing cases under this section shall have completed at least 100 hours of relevant training and testing, and observed 20 hours of small claims hearings in accordance with the protocol for said training and observation which shall be established by a majority of the assistant judges of the state, which shall include attendance at colleges or classes available in various locations in and outside the state to lay judges.  An assistant judge who hears cases under this section shall complete 16 hours of continuing education every year relating to jurisdiction exercised under this section and shall file a certificate to such effect with the court administrator.  Training shall be paid for on a per capita basis of those judges electing to take the training by the county, which expenditure is hereby authorized.  Law clerk assistance available to superior court judges shall be available to the assistant judges.

(c)  A decision of an assistant judge shall be entered as a small claims judgment and may be appealed pursuant to section 5538 of this title.  The appeal shall be decided by the presiding judge.

(d)  An assistant judge upon successful completion of the training under subsection (b) of this section, shall cause the superior court clerk to notify the court administrator of the assistant judge's successful completion of training. Upon receipt of such notification, small claims cases which require a hearing shall first be set for hearing before an assistant judge in the superior court in the county and shall be heard by the assistant judge.  If the assistant judge is unavailable due to illness, vacation, administrative leave, disability, or disqualification, the administrative judge pursuant to section 22 of Title 4 may assign a judge, or appoint and assign a member of the Vermont bar to serve temporarily as an acting judge, to hear small claims cases in Addison, Chittenden, Franklin, Grand Isle, Lamoille, Orange, Orleans, Washington, Windham, and Windsor counties.  No action filed or pending shall be heard at or transferred to any other location unless agreed to by the parties.  If both assistant judges of the county elect to successfully complete training to hear these matters, the senior assistant judge shall make the assignment of cases to be heard by each assistant judge.  The assistant judges, once qualified to preside in these matters, shall work with the court administrator's office and the administrative judge such that the scheduling of small claims cases before the assistant judges are at such times as to permit adequate current court personnel to be available when these cases are heard.

(e)  This section shall be repealed effective on July 1, 2008 July 1, 2011.

Sec. 11.  13 V.S.A. § 7043a is added to read:

§ 7043a.  Licenses or governmental contracts

(a)  As used in this section:

(1)  “Agency” means any unit of state government, including agencies, departments, boards, commissions, authorities, or public corporations.

(2)  “Contract” means a contract for the provision of goods, services, or real estate space.

(3)  “License” means any license, certification, or registration issued by an agency to conduct a trade or business, including a license to practice a profession or occupation, or a license required to engage in recreational activities, including a license to hunt, fish, or trap.

(b)  Every applicant for a license shall sign a statement that the applicant is in good standing with respect to any restitution order.  A license may not be issued or renewed without such a statement.

(c)  No agency shall enter into, extend, or renew any contract unless the person submits a statement that the person is in good standing with respect to any restitution order as of the date the contract is made.

(d)  For the purposes of this section, a person is in good standing with respect to any restitution order if:

(1)  60 days or fewer have elapsed since the date a restitution judgment was issued;

(2)  the person is in compliance with a repayment plan approved by the restitution unit; or

(3)  the person is in compliance with a court-ordered restitution judgment order.
Sec. 12.  15 V.S.A. § 798 is amended to read:

§ 798.  ENFORCEMENT OF CHILD SUPPORT ORDERS; SUSPENSION OF LICENSES

(a)  Upon noncompliance with an order issued under section 606 of this title, a motion may be filed seeking an order for suspension of licenses under this section.  The motion shall be scheduled for hearing in accordance with the Vermont Rules of Family Proceedings within 30 days of the filing of the motion.  At a hearing under this subsection, the obligor shall have the opportunity to present evidence relating to the reasons for noncompliance.  An inability to comply shall be a defense in an action brought under this subsection.  The noncomplying party shall have the burden of demonstrating inability to comply.  An order issued under subsection (b) of this section is in addition to other remedies available at law.

(b)  Upon a finding of noncompliance with an order issued under section 606 of this title and a delinquency of at least one-quarter of the annual support obligation, a family court judge or magistrate, if assigned by the presiding family court judge, may order a civil suspension of a noncomplying party 's motor vehicle operator's license issued under chapter 9 of Title 23 or commercial driver license issued under chapter 39 of Title 23, recreational license, and any other license certification or registration issued by an agency to conduct a trade or business, including a license to practice a profession or occupation.

(c)  Upon receipt of a license suspension order issued under this section, the license issuing authority shall suspend the license according to the terms of the order.  Prior to suspending the license, the license issuing authority shall notify the license holder of the pending suspension and provide the license holder with an opportunity to contest the suspension based solely on the grounds of mistaken identity or compliance with the underlying child support order.  The license shall be reinstated within five days of a reinstatement order from the court or notification from the office of child support or the custodial parent, where the rights of that parent have not been assigned to the office of child support, that the parent is in compliance with the underlying child support order.  The license issuing authority shall charge a reinstatement fee as provided for in section 675 of Title 23, or as otherwise provided by law or rule.

(d)  The license issuing authority shall adopt procedural rules in accordance with the provisions of chapter 25 of Title 3 to implement the provisions of this section.

(e)  Notwithstanding the provisions of this section to the contrary, after notifying the obligor of the pending revocation or suspension and giving the obligor an opportunity to object and request a grievance hearing pursuant to 33 V.S.A. § 4108 to contest the suspension on the grounds that the action is improper due to a mistake of fact, the office of child support may direct a licensing authority, with the exception of the department of motor vehicles, to revoke or suspend an obligor's right to a license,  and with respect to hunting, fishing and trapping, the right to hunt, fish and trap, without obtaining a modification of the court order if any amount due under the order has accumulated to one-twelfth of the annualized amount of child support.  All objections to the suspension shall be made to the office of child support and not to the licensing authority, and the licensing authority shall not be required to hold a hearing before suspending a license pursuant to this subsection.

(f)  A license shall be reinstated within five days of notification from the office of child support or the custodial parent, where the rights of that parent have not been assigned to the office of child support, that the obligor is in compliance with the underlying child support order or repayment plan.  The licensing authority shall charge a reinstatement fee as provided by law or rule.

Sec. 13.  APPROPRIATION FOR DOMESTIC VIOLENCE PREVENTION

There is appropriated the amount of $190,000.00 from the general fund to the center for crime victims services.  The center shall use the funds to present grants to organizations that provide services to victims of domestic violence.  These funds shall be used for programs that are designed to prevent domestic violence and are targeted at the needs of children in families affected by domestic violence.  At the end of FY08, any unexpended portion of this appropriation shall be carried forward and used for the same purpose.

Sec. 14.  REPORTS

(a)(1)  The commissioner of the department of fish and wildlife, in consultation with the court administrator, the office of child support, the center for crime victims services, the department of motor vehicles, and the department of information and innovation, shall develop a proposal for an automated system for the department of fish and wildlife to suspend a license to hunt, fish, or trap for a violation of:

(A)  4 V.S.A. § 1110, relating to any unpaid judgment issued by the judicial bureau or district court for fines or penalties for a criminal offense;

(B)  13 V.S.A. § 7043, relating to failure to comply with a restitution order; and

(C)  15 V.S.A. §§ 795 and 798, relating to failure to comply with a child support order.

(2)  The commissioner shall report to the house and senate committees on judiciary and to legislative council not later than December 1, 2007 regarding the proposed automated system and any costs associated with implementation.

(b)  The commissioner of the department of motor vehicles and the court administrator shall report to the senate and house committees on judiciary no later than December 1, 2007 on methods to protect the interests of innocent owners when suspending the registrations of motor vehicles titled to more than one person on account of the failure of one of the titleholders to pay to the judicial bureau judgments for traffic violations.

(c)  The Vermont law school is requested to provide a report to the senate and house committees on judiciary no later than November 15, 2008 on the results and performance of assistant judges in deciding small claims cases.  The report shall include an analysis of a sufficient number of small claims decisions by assistant judges to permit a statistically supportable conclusion about whether the percentage of the decisions containing clear error is within a range which provides substantial justice to litigants. 

Sec. 15.  VICTIMS OF SEXUAL ASSAULT STUDY COMMITTEE

(a)  A committee is established to study certain issues related to victims of sexual assault.  The committee shall examine:

(1)  the financial cost of forensic sexual assault examination and other health care needs of sexual assault victims, including follow-up care for victims undergoing PEP, best practices in other states, and whether the cost of forensic sexual assault examinations should be capped;

(2)  how forensic sexual assault examination kits are collected and transported by law enforcement and how the kits are received and processed by the Vermont Forensic Laboratory;

(3)  the currency of practice standards for sexual assault nurse examiners, oversight and enforcement of standards, and the training and certification opportunities available in Vermont;

(4)  the feasibility of instituting a pediatric sexual assault examination program in Vermont.  The committee shall review the study conducted by the Vermont children’s alliance and consult with other state and national organizations with expertise in pediatric sexual assault examiner programs;

(5)  whether a victim of sexual assault shall be considered eligible for the victims compensation program based solely on a report to a sexual assault nurse examiner;

(6)  the current funding sources for the sexual assault nurse examiner program and the need for additional resources.

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

(1)  One member appointed by the Vermont center for crime victim services, who shall serve as co-chair of the committee.

(2)  One member appointed by the Vermont center for the prevention and treatment of sexual abuse, who shall serve as co-chair of the committee.

(3)  One member appointed by the Vermont hospital association.

(4)  One member appointed by the Vermont network against domestic and sexual violence.

(5)  A survivor of sexual assault appointed by the Vermont center for crime victim services.

(6)  One member appointed by the department of public safety.

(7)  The director of the Vermont forensic laboratory.

(8)  One member of the Vermont children’s alliance.

(9)  A pediatrician appointed by the Vermont medical society.

(10) A sexual assault nurse examiner appointed by the sexual assault nurse examiner advisory board.

(11)  One member of the senate appointed by the committee on committees.

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

(d)(1)  Members of the committee who are not state employees shall be entitled to per diem compensation and reimbursement for expenses through the center for crime victim services to the same extent that legislative members of committees are entitled to such compensation and reimbursement under 2 V.S.A. § 406. 

(2)  For attendance at a meeting when the general assembly is not in session, the legislative member of the committee shall be entitled to per diem compensation and reimbursement for expenses as provided by 2 V.S.A. § 406.

(e)  The committee shall present its findings and recommendations, including proposals for legislative action, to the general assembly no later than December 1, 2007.

Sec. 16.  Sec. 9 of No. 169 of the Acts of the 2005 Adj. Sess. (2006) is amended to read:

Sec. 9.  DISSEMINATION OF ELECTRONIC CASE RECORDS

The judiciary shall not permit public access via the internet to criminal case records or family court case records prior to June 1, 2007 July 1, 2008.  The court may permit criminal justice agencies, as defined in 20 V.S.A. § 2056a, internet access to criminal case records for criminal justice purposes, as defined in section 2056a. 

Sec. 17.  24 V.S.A. § 441 is amended to read:

§ 441. APPOINTMENT; JURISDICTION; EX OFFICIO NOTARIES; APPLICATION

(a) The judges of the superior court may appoint as many notaries public for the county as the public good requires, to hold office until ten days after the expiration of the term of office of such judges, whose jurisdiction shall extend throughout the state.

(b) The clerk of the supreme court, county clerks, district court clerks, family court clerks, justices of the peace, and town clerks and their assistants shall be ex officio notaries public.

(c)(1) Unless subdivision (2) of this subsection applies, every Every applicant for appointment and commission as a notary public shall complete an application to be filed with the clerk of the superior court stating that the applicant is a resident of the county and has reached the age of majority, giving his business or home address and providing a handwritten specimen of the applicant's official signature.

(2)  The judges of the superior court may appoint as a notary public a person not less than 17 years of age upon application to the clerk of the superior court stating that the applicant is an honor student and a resident of the county, giving the applicant’s home address and providing a handwritten specimen of his or her official signature.  The application shall be accompanied by a certification from the applicant’s school that the applicant is an honor student under criteria established by the school. 

(d)  The attorney general, a state’s attorney, a deputy attorney general, an assistant attorney general, and a deputy state’s attorney shall be ex officio notaries public.

(d)(e)  An ex officio notary public shall cease to be a notary public when he vacates the office on which his status as a notary public depends.

Sec. 18.  4 V.S.A. § 27 is added to read:

§ 27.  MUNICIPAL TICKET REPAYMENT REVOLVING FUND

(a)  A municipal ticket repayment revolving fund is created for the purpose of facilitating the transfer of incorrectly deposited judicial bureau payments to the appropriate municipality.  A municipality may request a loan from the municipal ticket repayment revolving fund in the amount owed another municipality if the municipality requesting the loan:

(1)  received payments from the judicial bureau that were actually owed to the other municipality for penalties collected by the judicial bureau for violations of an ordinance within the other municipality; and

(2)  received such payments from the judicial bureau between June 30, 2004 and June 30, 2007.

(b)  The court administrator shall have the authority to approve all loans from the municipal ticket repayment revolving fund.  To request a loan from the fund, a municipality shall file an application on a form approved by the court administrator by July 1, 2008.  The application shall contain the following information:

(1)  an agreement, signed by both municipalities, defining the amount owed by one municipality to the other; and

(2)  a plan for the municipality requesting the loan to repay the fund by July 1, 2013.  The plan may authorize the court administrator to withhold judicial bureau violation payments to the municipality requesting the loan for deposit into the fund.

(c)  The maximum loan balance at any time shall be $100,000.00 for one municipality and $400,000.00 for all municipalities.  The court administrator shall administer the municipal ticket repayment revolving fund and shall establish procedures to allocate the available funds fairly and equitably.

(d)  Nothing in this section shall prohibit the sending or receiving municipality from otherwise agreeing on, or bringing a civil action to resolve, overpayment issues prior to June 30, 2004.

Sec. 19.  23 V.S.A. § 1098 is added to read:

§ 1098.  DISPOSITION OF PENDING CASES

(a)  The judicial bureau shall enter judgment against the defendant in all cases in which:

(1)  prior to January 1, 2007, the defendant filed an answer admitting or not contesting the violation;

(2)  the defendant paid all or a portion of the fine, penalty, or surcharge; and

(3)  The issuing officer did not file the original complaint prior to July 1, 2007.

(b)  Notwithstanding any law to the contrary, a judgment entered pursuant to this section shall not result in points assessed against the defendant by the department of motor vehicles. Any funds received by the judicial bureau for judgments under this section shall be deposited in the court technology special fund up to $150,000.00, and the balance to be deposited to the municipal ticket repayment revolving fund defined in 4 V.S.A. § 27.

(c)  The judicial bureau shall dismiss the action in all cases in which:

(1)  the defendant filed an answer denying or contesting the violation prior to January 1, 2007; and

(2)  the issuing officer did not file the original complaint prior to July 1, 2007.

Sec. 20.  EFFECTIVE DATE

(a)  In Sec. 5 of this act, 23 V.S.A. § 2307(b), the provisions relating to the denial of a motor vehicle registration, and Sec. 6 in its entirety shall take effect January 1, 2010. 

(b)  Secs. 3 and 11 shall take effect January 1, 2008.

(c)  Sec. 16 shall take effect on passage.

(d)  All other sections shall take effect July 1, 2007.

and, that upon passage, the title shall read:  “AN ACT RELATING TO THE ADMINISTRATION AND ENFORCEMENT OF JUDICIAL FINES AND JURISDICTION OF ASSISTANT JUDGES OVER SMALL CLAIMS”

(No House Amendments)

CONSENT CALENDAR

Concurrent Resolutions for Notice under Joint Rule 16

     The following joint concurrent resolutions have been introduced for approval by the Senate and House and will be adopted automatically unless a Senator or Representative requests floor consideration before the end of the session of the next legislative day.  Requests for floor consideration in either chamber should be communicated to the Secretary’s office and/or the House Clerk’s office, respectively.

H.C.R.  123

House concurrent resolution in memory of Elizabeth Daley Jeffords

H.C.R.  124

House concurrent resolution congratulating the 2007 American Basketball League champion Vermont Frost Heaves

 

PUBLIC HEARINGS

Thursday, April 26, 2007, Room 11 –  3:00 – 6:00 PM   - House Committee on Education  -  H. 526 – Governor’s cap proposals.

 

SPECIAL MESSAGE

To all House Members:

Please turn  your HCR Resolutions in to Michael Chernick by April 26, 2007.   Thank you.

 

 

 

 

 



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us