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Journal of the Senate

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Thursday, March 1, 2007

The Senate was called to order by the President pro tempore.

Devotional Exercises

Devotional exercises were conducted by the Venerable Dhyani Yawahoo of Lincoln.

Bills Introduced

Senate bills of the following titles were severally introduced, read the first time and referred:

S. 157.

By Senator Racine,

An act relating to retirees of the University of Vermont.

To the Committee on Economic Development, Housing and General Affairs.

S. 158.

By Senator Campbell,

An act relating to statewide coordinator on stuttering.

To the Committee on Education.

S. 159.

By Senators Snelling, Bartlett and Kitchel,

An act relating to improving economic security of low income Vermonters through asset building.

To the Committee on Health and Welfare.

S. 160.

By Senators Lyons, Ayer, Campbell, Giard, McCormack and Racine,

An act relating to use value appraisal.

To the Committee on Finance.


S. 161.

By Senator Illuzzi,

An act relating to the uniform management of institutional funds act.

To the Committee on Judiciary.

Bill Referred

House bill of the following title was severally read the first time and referred:

H. 93.

An act relating to beer producers’ interest in retail liquor licenses.

To the Committee on Economic Development, Housing and General Affairs.

Joint Resolution Placed on Calendar

J.R.S. 21.

Joint Senate resolution of the following title was offered, read the first time and is as follows:

   By Senator Illuzzi,

     J.R.S. 21.  Joint resolution requesting Congress to authorize a 90,000‑pound weight limitation for all commodities transported by truck tractors, semitrailer combinations, or truck‑trailer combinations having five or more axles and traveling on interstate highways in Vermont.

Whereas, the interstate highways which cross the state of Vermont serve as major thoroughfares for the long‑distance shipment of commodities, and

Whereas, interstate highways are built to the highest safety standards of any roads in the United States, and

Whereas, haulers of water and milk traveling on Vermont’s interstate highways are now authorized to ship a maximum load of 90,000 pounds when transporting those items by truck tractors, semi‑trailer combinations, or truck‑trailer combinations having five or more axles, and

Whereas, these vehicles are equipped with the necessary brake and suspension systems to transport safely weight loads equal to 90,000 pounds, and

Whereas, the 80,000‑pound weight limitation for haulers shipping commodities other than milk or water in these vehicles is inequitable and not justified, and

Whereas, Congress has authorized a 90,000‑pound weight limitation for the transporting of all goods in these vehicles on the interstate highways in the state of New Hampshire, and

Whereas, if haulers were authorized to ship 90,000‑pound loads, regardless of the commodity, in these vehicles on Vermont’s interstate highways, the transporting of goods would be accomplished more efficiently and in fewer vehicles, and

Whereas, operating vehicles on the interstate in Vermont instead of on state roads and city streets promotes greater efficiencies and an improved quality of life, and

Whereas, the Congressional authorization of the 90,000‑pound weight limitation for interstate highways located in the state of New Hampshire demonstrates that the highway safety issues related to this weight increase have already been examined in detail, now therefore be it

Resolved by the Senate and House of Representatives:

That the General Assembly requests Congress to grant statutory authorization permitting a 90,000‑pound weight limitation for all commodities transported in truck tractors, semi‑trailer combinations, or truck‑trailer combinations having five or more axles and traveling on interstate highways in Vermont, and be it further

Resolved:  That the Secretary of State be directed to send a copy of this resolution to United States Secretary of Transportation Mary Peters and the members of the Vermont Congressional delegation.

Thereupon, in the discretion of the President, under Rule 51, the joint resolution was placed on the Calendar for action tomorrow.

Senator Campbell Assumes the Chair

Bill Amended; Third Reading Ordered

S. 93.

Senate committee bill entitled:

An act relating to miscellaneous changes to education law.

Having appeared on the Calendar for notice for one day, was taken up.

Senator Condos, for the Committee on Finance, to which the bill was referred, reported recommending that the bill be amended as follows:

First:  By adding a new section to be numbered Sec. 3a to read as follows:

Sec. 3a.  16 V.S.A. § 559(e)(1) is amended to read:

(e) Application of this section. Application of this section. Any contract entered into or purchase made in violation of the provisions of this section shall be null and void; provided, however, that:

(1) the provisions of this section shall not apply to contracts for the purchase of books or other materials of instruction or to the purchase of insurance products;

Second:  By striking out Sec. 12 in its entirety and inserting in lieu thereof a new Sec. 12 to read as follows:

Sec. 12.  32 V.S.A. § 5402(a) is amended to read: 

(a)  A statewide education tax is imposed on all nonresidential and homestead property at the following rates:

(1)  the tax rate for nonresidential property shall be $1.59 per $100.00; and

(2)  the tax rate for homestead property shall be $1.10 multiplied by the district spending adjustment for the municipality, per $100.00, of equalized education property value as most recently determined under section 5405 of this title.  The homestead property tax rate for each municipality which is a member of a union or unified union school district shall be calculated as required under subsection (e) of this section; provided, however, the district spending adjustment shall not include excess spending in any district with a total of 20 or fewer students that does not maintain an elementary or high school, in any year in which the district’s excess spending was solely attributable to new special education spending.

Third:  By adding a new section to be numbered Sec. 16 to read as follows:

Sec. 16.  EFFECTIVE DATE

Sec. 12 shall take effect on passage.

And that when so amended the bill ought to pass.

Thereupon, the bill was read the second time by title only pursuant to Rule 43, and the recommendations of amendment were collectively agreed to and third reading of the bill was ordered.

Bill Passed

Senate bill of the following title was read the third time and passed:

S. 77.

An act relating to transferring title to a motor vehicle to a surviving spouse


Senator Shumlin Assumes the Chair

Bill Amended; Consideration Postponed

S. 116.

Senate bill entitled:

An act relating to miscellaneous election law amendments.

Was taken up.

Thereupon, pending third reading of the bill, Senator White moved that the bill be amended as follows:

First:  By striking out Sec. 3 in its entirety

Second:  By striking out Sec. 11 in its entirety and inserting in lieu thereof a new Sec. 11 to read as follows:

Sec. 11.  17 V.S.A. § 2587 is amended to read:

§ 2587. RULES FOR COUNTING BALLOTS

* * *

(e)  In the case of “write-in” votes in a primary election, the act of writing in the name of a candidate, or pasting a label containing a candidate’s name upon the ballot, without other indications of the voter’s intent, shall constitute a vote for that candidate, even though no cross is placed after such name.  The election officials counting ballots and tallying results must shall list every person who receives a “write-in” vote and the number of votes received.  On each tally sheet, the counters shall add together the names of candidates that are clearly the same person, even though a nickname or last name is used.  Names of fictitious persons shall not be listed.

(f)  In the case of “write-in” votes in a general election, the act of writing in the name of a candidate, or pasting a label containing a candidate’s name upon the ballot, without other indications of the voter’s intent, shall constitute a vote for that candidate, even though no cross is placed after such name.  The election officials counting ballots and tallying results shall list each person who receives a “write-in” vote and the number of votes received, except that a write-in candidate shall not have his or her name listed and votes counted unless the candidate has filed a declaration of candidacy form at least 24 hours prior to election day with the official where nominating petitions must be filed for the office.  The declaration of candidacy form shall contain the same information as the candidate consent form.  Votes for write-in candidates who have not filed a declaration of candidacy form shall be counted as “write-in” votes but shall not be listed by name.  On each tally sheet, the counters shall add together the names of candidates that are clearly the same person, even though a nickname or last name is used.  Names of persons who did not file a declaration of candidacy and fictitious persons shall not be listed, but votes for these persons shall be counted as “write-in” votes.

(g)  When the same number of persons are nominated for the position of justice of the peace as there are positions to be filled, the presiding officer may declare the whole slate of candidates elected without making individual tallies, providing each person on the slate has more votes than the largest number of write-in votes for any one candidate.

Third:  In Sec. 12, 17 V.S.A. § 2590(c) in the second sentence, after the words “two town election officials” by inserting the words who are not members of the same political party

Fourth:  In Sec. 15, 17 V.S.A. § 2602(c), in the second sentence, after “two election officials” by inserting the words who are not members of the same political party

Which was agreed to.

Thereupon, the bill was read the third time and pending the question, Shall the bill pass?, on motion of Senator White consideration of the bill was postponed.

Bill Amended; Bill Passed

S. 7.

Senate bill entitled:

An act relating to medical marijuana.

Was taken up.

Thereupon, pending third reading of the bill, Senator Mullin, on behalf of the Committee on Health and Welfare, moved to amend the bill in Sec. 1, 18 V.S.A. § 4474b, by striking out subsection (e) in its entirety.

Which was agreed to.

Thereupon, the bill was read the third time and passed.

Bill Amended; Bill Passed

S. 124.

Senate bill entitled:

An act relating to planning and evaluating operations for inpatient psychiatric hospital services.

Was taken up.

Thereupon, pending third reading of the bill, Senator Scott, on behalf of the Committee on Institutions, moved to amend the bill as follows:

     First: In Sec. 1, subsection (a) subdivision (4), after the word “facility” by inserting the words or any other facility

     Second: In Sec 1, subsection (a) subdivision (7), by striking out the words “on the FAHC campus

     Third:  In Sec. 1 by striking out subsection (c) in its entirety and inserting in lieu thereof a new subsection (c) to read:

(c)  The committee on committees of the senate and the speaker of the house are authorized to retain one or more consultants to compile, analyze and review what has been done to date, and investigate the necessary steps to meet conditions of participation or waivers from the Centers for Medicare and Medicaid Services and the United States Congress to enable the participation of the existing state hospital in federal funding or the development of  one or more regional psychiatric facilities, or both, and they are authorized to spend up to $100,000.00 from the appropriation referenced in subsection (b) of this section to accomplish this purpose.  The consultant or consultants shall report preliminary progress on or before May 1, 2007 jointly to the chairs of the House and Senate Appropriations and Institutions Committees, the Senate Health and Welfare Committee, and the House Human Services Committee. A final report shall be submitted to the above mentioned committee chairs and to the Secretary of Administration no later than June 30, 2007.

     Fourth:  On Sec. 1, subsection (d) at the end of the subsection by inserting the words or combination of both

Which was agreed to.

Thereupon, the bill was read the third time and passed.

Bill Passed in Concurrence

H. 128.

House bill of the following title was read the third time and passed in concurrence:

An act relating to approval of an amendment to the charter of the town of Bradford.


Consideration Postponed

S. 128.

Senate bill entitled:

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

Was taken up.

Thereupon, without objection consideration of the bill was postponed until the next legislative day.

Senator Mazza Assumes the Chair

Third Reading Ordered

S. 133.

Senate committee bill entitled:

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

Having appeared on the Calendar for notice for one day, was taken up.

Thereupon, the bill was read the second time by title only pursuant to Rule 43, and third reading of the bill was ordered.

Senator Shumlin Assumes the Chair

Joint Resolution Adopted on the Part of the Senate

J.R.S. 20.

Joint Senate resolution entitled:

Joint resolution providing for and relating to an extension of the date for the convening of a Joint Assembly to vote on the retention of Superior Judges and District Judges.

Having been placed on the Calendar for action, was taken up and adopted on the part of the Senate.

Rules Suspended; Joint Resolution Committed

J.R.S. 21.

Pending entry on the Calendar for action, on motion of Senator Mazza, the rules were suspended and Joint Senate resolution entitled:

Joint resolution requesting Congress to authorize a 90,000‑pound weight limitation for all commodities transported by truck tractors, semitrailer combinations, or truck‑trailer combinations having five or more axles and traveling on interstate highways in Vermont.

Was taken up for immediate consideration.

Thereupon, pending the question, Shall the joint resolution be adopted?, on motion Senator Mazza, the joint resolution was committed to the Committee on Transportation.

Concurrent Resolution Withdrawn

S.C.R. 10

At the request of its sponsor, S.C.R. 10 was ordered to be withdrawn from consideration by the Senate.

Adjournment

On motion of Senator Mazza, the Senate adjourned until four o’clock and forty-five minutes in the morning.

Called to Order

At four o’clock and forty-five minutes the Senate was called to order by the President pro tempore.

Bills Introduced

Senate bills of the following titles were severally introduced, read the first time and referred:

S. 162.

By Senator Condos,

An act relating to expansion of affordable housing income tax credit.

To the Committee on Economic Development, Housing and General Affairs.

S. 163.

By Senator Condos,

An act relating to reduction of property transfer tax on primary residences.

To the Committee on Economic Development, Housing and General Affairs.


S. 164.

By Senator Flanagan,

An act relating to campaign finance and the Vermont campaign finance option.

To the Committee on Government Operations.

S. 165.

By Senators Lyons and Ayer,

An act relating to local option tax revenue funding of regional alternative transportation.

To the Committee on Transportation.

S. 166.

By Senator Lyons,

An act relating to prohibiting mandatory overtime.

To the Committee on Health and Welfare.

Committee Bill Introduced

Senate committee bill of the following title was introduced, read the first time, and, under the rule, placed on the Calendar for notice the next legislative day:

S. 167.

By the Committee on Government Operations,

An act relating to voter registration.

Consideration Postponed

Senate bills entitled:

S. 116.

An act relating to miscellaneous election law amendments.

S. 128.

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

Were taken up.

Thereupon, without objection consideration of the bills was postponed until the next legislative day.

Rules Suspended; Bill Ordered to Lie

S. 27.

Appearing on the Calendar for notice, on motion of Senator Mazza, the rules were suspended and Senate bill entitled:

An act relating to increasing the minimum tip wage.

Was taken up for immediate consideration.

Thereupon, pending the reading of the report of the Committee on Economic Development, Housing and General Affairs, on motion of Senator Miller, the bill was ordered to lie.

Rules Suspended; Bill Amended; Third Reading Ordered; Rules Suspended; Bill Passed

S. 6.

Appearing on the Calendar for notice, on motion of Senator Mazza, the rules were suspended and Senate bill entitled:

An act relating to preventing conviction of innocent persons.

Was taken up for immediate consideration.

     Senator Campbell, for the Committee on Judiciary, to which the bill was referred, reported recommending that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  13 V.S.A. 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 contain facts showing that DNA testing may be material to the petitioner’s claim of wrongful conviction.

(b)  As used in this section, “person convicted of a qualifying crime” means a person convicted of:

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

(A) arson causing death, § 501;

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

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

(D)  aggravated assault, § 1024;

(E)  murder, § 2301;

(F)  manslaughter, § 2304;

(G)  kidnapping, § 2405;

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

(I)  maiming, § 2701;

(J)  sexual assault, § 3252(a)(1) or (a)(2);

(K)  aggravated sexual assault, § 3253;

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

(M)  lewd and lascivious conduct with a child, § 2602; or

(2)  any crime 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)  The petition shall be filed in the superior court of the county where the conviction was imposed, and shall not be heard by the judge who presided when the original sentence was imposed.  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, and the state shall file a response within 30 days after it receives the petition.

(d)  The court shall schedule a hearing on the petition within 90 days after it is filed unless the court dismisses the petition pursuant to subsection (e) of this section.  Time limits under this subsection may be extended for good cause shown or by consent of the parties.

(e)  The court may dismiss the petition if it determines that:

(1)  the petition, response, 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.  DISCOVERY

The court may make the following discovery orders at any time after a petition has been filed under this subchapter:

(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.

(5)  The results of any postconviction DNA testing conducted pursuant to this subchapter shall be disclosed to the state, the department of corrections, the parole board, the petitioner, and the court.

§ 5564.  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 adhere to the policies distributed pursuant to this section.

§ 5565.  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 or would have received a lesser sentence if favorable results had been obtained through DNA testing 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 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.


§ 5566.  APPEALS

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

§ 5567.  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 defender general 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.

§ 5568.  PROCEDURE AFTER TEST RESULTS OBTAINED

(a)  If the results of forensic DNA testing ordered under this subchapter are favorable to the petitioner, 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.

(b)  At or subsequent to the hearing, the court may issue an order directing one or more of the following:

(1)  setting aside or vacating the petitioner’s judgment of conviction, judgment of not guilty by reason of mental disease or defect;

(2)  granting the petitioner a new trial or fact-finding hearing;

(3)  granting the petitioner a new sentencing hearing, commitment hearing, or dispositional 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)  directing the state to place any unidentified DNA profiles obtained from postconviction DNA testing into a state or a federal database, or both.

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

§ 5569.  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

§ 5571.  RIGHT OF ACTION; PROCEDURE

(a)  A person convicted and imprisoned for a crime which the person did not commit 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.

§ 5572.  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, the information or indictment being dismissed, the granting of a pardon, or an acquittal after a second or subsequent trial or through some other means. 

(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.

§ 5573.  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, the complainant’s indictment or information was dismissed, or the complainant received an acquittal after a second or subsequent trial; 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)  A claimant awarded judgment in an action under this subchapter shall be entitled to $50,000.00 in damages for each year the claimant was incarcerated, adjusted proportionally for partial years served.  The damage award may also include:

(1)  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.

(2)  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.

(3)  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.

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

(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. 

§ 5574.  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.

§ 5575.  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, the indictment being dismissed, the granting of a pardon or an acquittal after a second or subsequent trial or through some other means.

(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 cause of action under this subchapter accrues before the effective date of this chapter, the action shall be commenced within three years after the effective date.

(3)  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.     

§ 5576.  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, dismissing the information or indictment, or entering judgment on an acquittal after a second or subsequent trial or through some other means; and

(2)  receiving notice of a pardon.

(b)(1)  A person receiving a copy of this subchapter pursuant to subdivision (a)(1) 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.

(2)  A person receiving a copy of this subchapter pursuant to subdivision (a)(2) of this section shall be required to acknowledge its receipt in writing on a form established by the parole board.  The acknowledgement shall be retained on file by the parole board as part of its official records and shall be admissible in an action filed under this subchapter.

(c)  The administrative judge and the court administrator shall make reasonable attempts to provide notice of this subchapter to persons whose actual innocence was determined by judicial relief issued consistent with subdivision (a)(1) of this section prior to the effective date of this act.

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)  one member appointed by the attorney general;

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

(5)  a state trooper appointed by the state police bargaining unit of the Vermont state employees’ association;

(6)  one member appointed by the commissioner of public safety;

(7)  the executive director of the Vermont crime lab or designee;

(8)  the defender general;

(9)  one member appointed by the defender general; and

(10)  a staff public defender appointed by the defender general.

(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 and with crime victims’ organizations, and may consult with the senate and house committees on judiciary.  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.

And that when so amended the bill ought to pass.

Senator Bartlett, for the Committee on Appropriations, to which the bill was referred, reported recommending that the bill ought to pass.

Thereupon, the bill was read the second time by title only pursuant to Rule 43, the recommendation of amendment was agreed to, and third reading of the bill was ordered.

Thereupon, on motion of Senator Mazza, the rules were suspended and the bill was placed on all remaining stages of its passage forthwith.

Thereupon, the bill was read the third time and passed.

Rules Suspended; Bill Passed

     Pending entry on the Calendar for action tomorrow, on motion of Senator Mazza, the rules were suspended and Senate bill entitled:

     S. 93.  An act relating to miscellaneous changes to education law.

     Was placed on all remaining stages of its passage forthwith.

     Thereupon, the bill was read the third time and passed.

Rules Suspended; Bill Amended; Third Reading Ordered; Rules Suspended; Bill Passed

S. 78.

Appearing on the Calendar for notice, on motion of Senator Mazza, the rules were suspended and Senate bill entitled:

An act relating to having the cost of picking up the hauling milk paid by the purchaser.

Was taken up for immediate consideration.

     Senator Giard, for the Committee on Agriculture, to which the bill was referred, reported recommending that the bill be amended as follows:

First:  In Sec. 1, by adding a new subdivision (1) to read as follows:

(1)  6 V.S.A. § 2676 dictates that the ownership of milk passes from the farmer to the buyer when the milk is transferred from a farm tank to a tank truck.

and by renumbering the remaining subdivisions to be numerically correct

Second: In Sec. 3, by striking out subsection (c) in its entirety and inserting in lieu thereof a new subsection (c) to read as follows:

(c)  The emergency rule shall take effect when, by rule, legislation, or other agreement, two other states in Northeast Marketing Area, Federal Order 1, have accomplished the purpose of this act or on January 1, 2008, whichever comes first.

And that when so amended the bill ought to pass.

Thereupon, the bill was read the second time by title only pursuant to Rule 43, the recommendation of amendment was agreed to, and third reading of the bill was ordered.

Thereupon, on motion of Senator Mazza, the rules were suspended and the bill was placed on all remaining stages of its passage forthwith.

Thereupon, the bill was read the third time and passed.

Rules Suspended; Bill Passed

     Pending entry on the Calendar for action tomorrow, on motion of Senator Mazza, the rules were suspended and Senate bill entitled:

S. 133.  An act relating to the operation of a motor vehicle by junior operators and primary safety belt enforcement.

     Was placed on all remaining stages of its passage forthwith.

     Thereupon, the bill was read the third time and passed.

Rules Suspended; Bills Messaged

On motion of Senator Mazza, the rules were suspended, and the following bills were ordered messaged to the House forthwith:

S. 6, S. 7, S. 77, S. 78, S. 93, S. 124, S. 133, H. 128.

Adjournment

On motion of Senator Mazza, the Senate adjourned until ten o’clock in the morning.



Published by:

The Vermont General Assembly
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Montpelier, Vermont


www.leg.state.vt.us