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Journal of the Senate

________________

Friday, May 4, 2007

The Senate was called to order by the President.

Devotional Exercises

A moment of silence was observed in lieu of devotions.

Message from the House No. 77

     A message was received from the House of Representatives by Ms. Wrask, its Second Assistant Clerk, as follows:

Mr. President:

I am directed to inform the Senate that the House has considered Senate proposal of amendment to House bill of the following title:

H. 91.  An act relating to the Rozo McLaughlin farm-to-school program.

And has concurred therein.

Pursuant to the request of the Senate for a Committee of Conference upon the disagreeing votes of the two Houses on Senate bill of the following title:

S. 7.  An act relating to the compassionate use of marijuana for medical purposes.

The Speaker has appointed as members of such committee on the part of the House

                                         Rep. Donahue of Northfield

                                         Rep. Jewett of Ripton

                                         Rep. Frank of Underhill

The House has considered the report of the Committee of Conference upon the disagreeing votes of the two Houses on Senate bill of the following title:

S. 37.  An act relating to mosquito control.

And has adopted the same on its part.

Rules Suspended; Proposal of Amendment; Third Reading Ordered

H. 15.

Pending on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and House bill entitled:

An act relating to a statewide school year calendar.

Was taken up for immediate consideration.

     Senator Collins, for the Committee on Education, to which the bill was referred, reported recommending that the Senate propose to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following

* * * Statewide School Year Calendar * * *

Sec. 1.  FINDINGS

The general assembly finds:

(1)  School districts need to find ways to collaborate in order to maintain concurrent schedules, improve student learning, and reduce costs through sharing of resources.

(2)  Students learn best when provided educational services for uninterrupted periods of instructional time.

(3)  Educators can deliver instructional services more efficiently and effectively when schools are following the same vacation, holiday, and statewide assessment schedules.

(4)  Common professional development days provide educators the opportunity to participate in regional and statewide programs.

(5)  A uniform calendar ensures better attendance at regional programs, such as technical centers.

(6)  The dates on which a school year begins and ends have great impact on children, their families, and local businesses, as does the scheduling of in‑service days and vacation.

Sec. 2.  16 V.S.A. § 1071 is amended to read:

§ 1071.  SCHOOL YEAR AND SCHOOL DAY CALENDAR

(a)  Minimum number of days School calendarExcept as provided in this section, each public school shall be maintained and operated for The commissioner shall develop at least two proposals for school calendars for use by all public schools.  To develop the calendars, which the commissioner shall use as the model for future calendars, the commissioner shall engage in a public process with students, parents, educators, the business community, and other interested parties.  The purpose of the proposed calendars shall be to improve high quality learning opportunities for all Vermont students.  The commissioner shall make the proposed calendars available by October 1, 2007.  At least one of the proposed calendars shall require that each school district provide at least five and one‑half hours of classes daily to students in all grade levels on the Tuesday, Wednesday, and Thursday in the week preceding Labor Day.  At least one of the proposed calendars shall provide for the first student day of the academic year to occur after Labor Day.  The proposed calendars shall include:

(1)  at least one hundred seventy‑five 175 common student attendance days in each school year.  For purposes of this section, a majority of students enrolled in a school must be recorded on the school roll as in attendance on any day counted as a student attendance day.;

(2)  at least five common teacher in‑service education days, during which time activities shall be conducted without students present in order to increase the competency of the staff, improve the curriculum of the school, enable teachers to attend state educational meetings, or disseminate student progress information to parents or the community.  At least one of the five days will be organized by the department and conducted at regional sites throughout the state;

(3)  to the extent possible, common periods for statewide assessments;

(4)  periods of vacation and holidays so as to ensure uninterrupted periods of instructional time;

(5)  a sufficient number of makeup days to compensate for unanticipated closings.  

(b)  Hours of operation.  Within the minimum set by the state board, the school board shall fix the number of hours that shall constitute a school day, subject to change upon the order of the state board.  A majority of students in each grade must be in attendance or participating in a school‑sponsored academic activity for a minimum of five and one‑half hours, including time available for lunch, for a day to constitute one full student attendance day.  If a majority of students in any grade is in attendance or participating for fewer than five and one‑half hours, the day shall be counted as one‑half of a student attendance day unless a waiver due to an emergency is requested of and granted by the commissioner.

(c)  Unanticipated closings.  When a public school is closed for cause beyond the control of the school board it may petition the state board for a waiver of the requirements of this section.  The petition shall be filed with the state board within 10 days of each occurrence and not later than June 15 of the school year involved; and the state board shall act on the petition at its next meeting held five or more business days following receipt of the petition.  Action may include approval of the request, disapproval of the request, or postponement of a decision for a definite period in order to enable the district to schedule makeup days.  If the petition is approved and a waiver granted, the school district shall be deemed to have satisfied the requirements of this section.  If the state board fails to act at that meeting, the petition shall be deemed to have been approved and the waiver granted.

(d)  Unique community situations.  If a school district or group of school districts needs to deviate from the uniform calendar due to a circumstance unique to the community which cannot otherwise be accommodated, the district or districts may petition the state board for a waiver by January 1 for the ensuing school year, and the state board shall act on the petition at its next meeting.

(e)  Regional calendar.  Before April 1 of each year, the superintendents of schools and the headmasters of public schools not managed by school boards in an area shall meet, and by majority vote, establish a uniform calendar within that area for the following school year.  The calendar shall include student attendance days, periods of vacation, holidays and teacher in‑service education days and shall comply with subsection (a) of this section.  Unless permitted by the commissioner, no area served by a regional technical center shall be divided into two or more calendar regions.  Regional calendar.  Before February 1 of each year, the director of each regional technical center shall designate a time and location at which the school board members of each district eligible to send students to that regional technical center shall meet to establish a uniform calendar.  In areas served by more than one technical center, the directors of both centers shall jointly designate the time and location of the meeting.  A majority of those board members present and voting at the meeting shall approve one of the calendars proposed by the commissioner to be used by all districts in the region in the ensuing academic year. 

(f)  Additional days.  Nothing in this section prohibits a school board from scheduling additional days for student attendance or teacher in‑service education.  However, those days shall not conflict with any applicable school displace or replace days identified as common student attendance days or common teacher in‑service education days on the statewide calendar.

(g)  Upon application of one or more school districts, after approval by the voters of each such district, the state board may grant a waiver of the requirements of subsection (a) if it is satisfied that equivalent educational programming will be maintained or improved.  The waiver may be granted for any purpose, including the conservation of energy.


Sec. 3.  NONCOMPLIANCE

On or before January 15, 2008, the commissioner of education shall propose to the senate and house committees on education an appropriate financial penalty to be imposed upon any district that fails to provide at least five and one‑half hours of classes daily to students in all grade levels on each of the 175 common student attendance days adopted by the region in which the district is located. 

Sec. 4.  EFFECTIVE DATE

This act shall take effect on passage.  The calendar proposals developed under Sec. 2 of this act shall be in effect at all schools for the 2009–2010 school year and each year thereafter.

     The Committee further recommends that upon passage the title of the bill shall be amended to read:

     AN ACT RELATING TO SCHOOL CALENDARS.

And that the bill ought to pass in concurrence with such proposal of amendment.

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

Rules Suspended; Third Reading Ordered

H. 547.

Appearing on the Calendar for Notice, on motion of Senator Shumlin, the rules were suspended and House bill entitled:

An act relating to fiscal year 2007 supplemental appropriations.

Was taken up for immediate consideration.

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

Senator Shumlin Assumes Chair

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

President Assumes the Chair

Senate Resolution Adopted

Senate resolution of the following title was offered, read and adopted, and is as follows:

   By All Members of the Senate,

S.R. 19.  Senate resolution designating May 6, 2007, as Vermont Vets for Victory Day.

Whereas, almost two million American military men and women, active, guard, and reserve, are on duty around the world, and

Whereas, many of them are engaged in combat in Iraq and Afghanistan, and

Whereas, members of the United States military are making considerable personal sacrifices, including long separations from their families, and

Whereas, many troops have made the supreme sacrifice, now therefore be it

Resolved by the Senate:

That the Senate of the State of Vermont declares full support for our troops, and be it further

Resolved:  That the Senate of the State of Vermont is proud of the sacrifices and bravery of our servicemen and women and expresses its sincere gratitude for their heroic service to the United States of America, and be it further

Resolved:  That this Senate of the State of Vermont recognizes May 6, 2007, as Vermont Vets for Victory Day, and be it further

Resolved:  That the Secretary of the Senate send a copy of this resolution to Adjutant General Michael Dubie, Governor James Douglas, the President of the United States, and Veterans Services Director Clayton Clark at the Vermont Department of Veterans Affairs.

House Proposal of Amendment Not Concurred In; Committee of Conference Requested

S. 6.

House proposal of amendment to Senate bill entitled:

An act relating to preventing conviction of innocent persons.

Was taken up.

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

Sec. 1.  13 V.S.A. chapter 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) arson 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 therefore 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.

Thereupon, pending the question, Shall the Senate concur in the House proposal of amendment?, on motion of Senator Sears, the Senate refused to concur in the House proposal of amendment and requested a Committee of Conference.

House Proposal of Amendment Concurred In with Amendment

S. 116.

House proposal of amendment to Senate bill entitled:

An act relating to miscellaneous election law amendments.

Was taken up.

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

First:  By striking out Sec. 8 in its entirety and inserting in lieu thereof a new Sec. 8 to read as follows:

Sec. 8.  17 V.S.A. § 2493(a) is amended to read:

(a) The secretary of state shall adopt rules governing the use and the selection of any voting machine in the state. These rules shall include requirements that:

* * *

(2)  The secretary of state shall provide for the security of voting machines at all times. Voting machines, not including the ballot box portion, shall be locked in a vault or a secure location at all times when not in use.  The secretary of state may conduct a random post election audit of any polling place election results for a primary or general election within 30 days of the election.  If the secretary determines that a random audit shall be conducted of the election results in a town or city, the town clerk shall direct two members of the board of civil authority to transport the ballot bags to the office of the secretary of state not later than 10:00 a.m. on the morning when the secretary has scheduled the audit.  The secretary shall open the ballot bags and conduct the audit in the same manner as recounts are to be conducted under sections 2602e through 2602h ballots are counted under sections 2581 through 2588 of this title.  The secretary of state shall publicly announce the results of the audit as well as the results from the original return of the vote.  If the secretary finds that the audit indicates that there was possible fraud in the count or return of votes, the secretary shall refer the results to the attorney general for possible prosecution.

* * *

(5) Establish a process for municipalities using voting machines, whereby markings on ballots that are unreadable by a machine may be transferred by a pair of election officials, who are not members of the same political party, to ballots that are readable by the machine.

Second:  By adding a new section to be numbered Sec. 8a to read as follows:

Sec. 8a.  17 V.S.A. § 2532(a) is amended to read:

(a)(1)  An early or absentee voter, or an authorized family member or health care provider acting in on the voter’s behalf, may apply for an early voter absentee ballot by telephone, in person, or in writing.  “Family member’’ here As used in this section, “family member” means a person’s spouse, children, brothers, sisters, parents, spouse’s parents, grandparents, and spouse’s grandparents.  Any other authorized person may apply in writing or in person.  The application shall be in a form prescribed by the secretary of state. substantially the following form:

REQUEST FOR EARLY VOTER ABSENTEE BALLOT

Name of early or absentee voter: ____________________________________

Current address: _________________________________________________

Residence (if different): ___________________________________________

Telephone contact:    _________________         E-mail:    ________________

If applicant is other than the early or absentee voter:

Name of applicant: _______________________________________________

Address of applicant: _____________________________________________

Relationship to early or absentee voter: _______________________________

Telephone contact:    _________________         E-mail:    ________________

Date: _____________ Signature:_____________________________________

(2) If the application is made by telephone or in writing, the information supplied must be in substantial conformance with the information requested on this form.

Third:  By adding a new section to be numbered Sec. 8b to read as follows:

Sec. 8b.  17 V.S.A. § 2546 is amended to read:

§ 2546.  DEPOSIT OF EARLY VOTER ABSENTEE BALLOTS IN BALLOT BOX

(a)  No sooner than 30 days before the opening of polls on election day, the town clerk of a municipality with at least 5,000 registered voters on its checklist may direct two election officials working together to open the outside envelope in order to sort absentee ballots by ward and district, may data enter the return of the ballots by the voter, may determine that the certificate has been signed, and may place the inside envelopes in various secure containers to be transported to the polling places on election day.   No sooner than 48 hours before the opening of polls on election day, a town clerk in all other municipalities may direct two election officials working together to open the outside envelope and remove the certificate envelope in order to determine that an absentee ballot certificate has been properly signed by the early voter, and that the name of the early voter appears on the checklist.  The election officials shall check the name of the early voter off the entrance checklist and place the sealed envelope into a secure container marked “checked‑in early voter absentee ballots” to be transported to the polling place on election day.  Upon opening of the polls on election day, ballots from this container may be opened by election officials, who are not members of the same political party, and deposited either into the ballot box or into the voting machine.

(b)  The town clerk or presiding officer shall deliver the unopened early voter absentee ballots to the election officials at the place where the entrance checklist is located.  If the ballots are in a container marked “checked‑in early voter absentee ballots,” two election officials from different political parties may open the envelopes and deposit the ballots into the ballot box or into the voting machine.  If the ballots have not been previously checked off the entrance checklist and if an elections election official determines that the certificate on the envelope is signed by the early voter, the name of the early voter appears on the checklist, and the early voter is not a first-time voter in the municipality who registered by mail, the elections election official shall mark the checklist, open the envelope, and deposit the ballot in the proper ballot box or voting machine.  If the early voter is a first-time voter who registered by mail, the elections election official shall determine whether the identification required under subdivision 2563(a)(1) of this title has been submitted by the voter. Upon ascertaining that the proper identification has been submitted by the voter, the elections election official shall mark the checklist, open the envelope, and deposit the ballot in the proper ballot box or voting machine.  If the proper identification has not been submitted, the ballot shall be treated as a provisional ballot, as provided in subchapter 6A of this chapter.

(b)(c)  All early voter absentee ballots shall be commingled with the ballots of voters who have voted in person.

Fourth:  By adding a new section to be numbered  Sec. 8c to read as follows:

Sec. 8c.  17 V.S.A. § 2548(b) is amended to read:

(b)  A person who in good faith has received early voter absentee ballots for his or her use but has not yet marked them, if he finds that he or she is able to vote in person, may cast the early voter absentee ballots as provided above, or may vote in person after returning the complete set of unmarked ballots, together with the envelope intended for their return, to the presiding officer at the time the voter appears to vote in person.  If a person does not have his or her absentee ballots to return, the person shall be checked off the checklist and permitted to vote only after completing a sworn affidavit that he or she does not have his or her absentee ballots to return.  The presiding officer shall return the unused early voter absentee ballots and envelope to the town clerk, who shall make a record of their return on the list of early or absentee voters and treat them as spoiled or unused ballots, pursuant to section 2568 of this title.

Fifth:  By adding a new section to be numbered Sec. 9a to read as follows:

Sec. 9a.  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 oval is marked or 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 with the official where nominating petitions must be filed for the office by 12:00 p.m. on the day prior to election day.  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.

Sixth:  By striking out Sec. 14 in its entirety and inserting in lieu thereof a new Sec. 14 to read as follows:

Sec. 14.  17 V.S.A. § 2682 is amended to read:

§ 2682.  PROCESS OF VOTING; APPOINTMENTS

* * *

(c)  In a municipal election controlled by this subchapter, the person receiving the greatest number of votes for an office shall be declared elected to that office; a certificate of election need not be issued.  However, in order to be elected a write-in candidate must receive 30 votes or the votes of one percent of the registered voters in the municipality, whichever is less.  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 oval is marked or 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 with the town clerk or presiding officer by the close of the polls on election day or unless there are no candidates printed on the ballot.  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.

* * *

(e)  If there is a tie vote for any office, the legislative body, or in their stead, the municipal clerk, shall within seven days warn a runoff election to be held not less than 15 days nor more than 22 days after the warning.  The only candidates in the runoff election shall be those who were tied in the original election.  However, if one of the candidates that are tied withdraws his or her candidacy within five days after the election, the town clerk shall certify the other tied candidate as the winner, and there shall be no runoff election.

Thereupon, pending the question, Shall the Senate concur in the House proposal of amendment?, Senator White moved that the Senate concur in the House proposal of amendment with an amendment as follows:

First:  By striking out Sec. 8a in its entirety

Second:  In Sec 8b subsection (a) in the last sentence by striking out the word “may” and inserting in lieu thereof the word shall and in subsection (b) in the second sentence by striking out the word “may” and inserting in lieu thereof the word shall

Third:  By striking out Sec. 9a in its entirety

Fourth:  By striking out Sec. 14 in its entirety and inserting in lieu thereof a new Sec. 14 to read as follows:

Sec. 14.  17 V.S.A. § 2682(e) is amended to read:

(e)  If there is a tie vote for any office, the legislative body, or in their stead, the municipal clerk, shall within seven days warn a runoff election to be held not less than 15 days nor more than 22 days after the warning.  The only candidates in the runoff election shall be those who were tied in the original election.  However, if one of the candidates that are tied withdraws his or her candidacy within five days after the election, the town clerk shall certify the other tied candidate as the winner, and there shall be no runoff election.

Which was agreed to.


Joint Resolutions Adopted in Concurrence

Joint House resolutions entitled:

J.R.H. 21.

Joint resolution in support of the worldwide ONE campaign and urging Congress to appropriate and the President to spend an additional one percent of the federal budget on the goals of the ONE campaign.

J.R.H. 28.

Joint resolution commemorating the 25th anniversary of the Vermont Vietnam veterans memorial and all Vietnam war veterans.

Having been placed on the Calendar for action, were taken up.

Thereupon, the resolutions were severally adopted in concurrence.

Rules Suspended; Third Readings Ordered

H. 542.

Appearing on the Calendar for Notice, on motion of Senator Shumlin, the rules were suspended and House bill entitled:

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

Was taken up for immediate consideration.

Senator Ayer, for the Committee on Government Operations, to which the bill was referred, reported that the bill ought to pass in concurrence.

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

Rules Suspended; House Proposal of Amendment Concurred In

S. 194.

Appearing on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and House proposal of amendment to Senate bill entitled:

An act relating to firefighters and cancer caused by employment.

Was taken up for immediate consideration.

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

Sec. 1.  LEGISLATIVE FINDINGS

The general assembly finds the following:

(1)  In the course of fighting fires, firefighters are frequently exposed to many different products of combustion, diesel smoke, hydrocarbons, cyanides, plastics, polychlorinated biphenyls (PCBs), benzene, chloroform, soot, styrene, and formaldehyde, all of which are known carcinogens.  Firefighters may also be exposed to heavy metals, carcinogenic chemicals, volatile gases, minerals, and other substances with acute toxic effects.

(2)  Scientific studies performed both nationally and internationally have recognized that firefighters have significantly greater incidents of certain cancers than the general population.

(3)  Gathering and establishing evidence of work-related causation for such cancers is difficult and costly and requires significant expert testimony.

(4)  Approximately 28 states and the provinces of Canada have adopted legislation creating a presumption that certain cancers suffered by eligible firefighters are caused by exposure during their employment as firefighters.  Vermont adopts this rebuttable presumption to protect the safety and well-being of its firefighters.

(5)  The Vermont league of cities and towns (VCLT) in its March 23, 2007 report hypothesized that this act would result in a significant increase in workers’ compensation premiums for firefighters.  A subsequent economic analysis questioned the VLCT’s projected premium rate increase because it failed to take into consideration the five conditions precedent before a firefighter may take advantage of the rebuttable presumption.  Further, the medical data used was outdated; was for only one year, rather than the average of several years; and used cost figures for all members regardless of age or types of cancer rather then the median cost of treating adult males with the limited number of cancers identified in this act.

(6)  The VLCT analysis relied on birth-to-death probability statistics from the National Cancer Institute and did not acknowledge that men 70 years of age or older in the general population are three times more likely than men between the ages of 60 and 69 to contract cancer.  This is significant because Vermont firefighters over the age of 65 cannot take advantage of the rebuttable presumption created by this act.

(7)  The increased cancer risks for firefighters should motivate the VLCT and its member municipalities to develop and improve safe firefighting practices, including the purchase and use of improved protective equipment, which will reduce the frequency and extent of firefighters’ exposure to carcinogenic materials, thereby reducing the incidents of cancer for Vermont’s firefighters.

(8)  Any firefighter seeking to avail himself or herself of the rebuttable presumption created by this act will necessarily be required to live a healthier lifestyle, thereby reducing the overall cost of health care in Vermont, regardless of whether these costs are paid by a private health insurer, the VLCT health insurance trust, or workers’ compensation insurance carriers.

Sec. 2.  21 V.S.A. § 601(11)(E), (F), and (G) are added to read:

(E)  In the case of a firefighter, as defined in 20 V.S.A. § 3151(3) and (4), who suffers death or disability from a cancer listed in subdivision (iv) of this subdivision (11 E), the firefighter shall be presumed to have suffered the cancer as a result of exposure to conditions in the line of duty, unless it is shown by a preponderance of the evidence that the cancer was caused by non‑service‑connected risk factors or non‑service‑connected exposure, provided:

(i)  The firefighter completed an initial and any subsequent cancer screening evaluations as recommended by the American Cancer Society based on the age and sex of the firefighter prior to becoming a firefighter or within two years of the effective date of this act, and the evaluation indicated no evidence of cancer.

(ii)  The firefighter was engaged in firefighting duties or other hazardous activities over a period of at least five years in Vermont prior to the diagnosis.

(iii)  The presumption shall not apply to any firefighter who has used tobacco products at any time within ten years of the date of diagnosis.

(iv)  The disabling cancer shall be limited to leukemia, lymphoma, or multiple myeloma, and cancers originating in the bladder, brain, colon, gastrointestinal tract, kidney, liver, pancreas, skin, or testicles.

(v)  The firefighter is under the age of 65.

(F)  A firefighter who is diagnosed with cancer within ten years of the last active date of employment as a firefighter shall be eligible for benefits under this subdivision.  The date of injury shall be the date of the last injurious exposure as a firefighter. 

(G)  It is recommended that fire departments maintain incident report records for at least ten years.

Thereupon, the question, Shall the Senate concur in the House proposal of amendment?, was decided in the affirmative.


Rules Suspended; Bill Passed in Concurrence with Proposal of Amendment

H. 15.

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

An act relating to a statewide school year calendar.

Was placed on all remaining stages of its passage in concurrence with proposal of amendment forthwith.

Thereupon, the bill was read the third time and passed in concurrence with proposal of amendment.

Rules Suspended; Bills Passed in Concurrence

H. 542.

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

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

Was placed on all remaining stages of its passage in concurrence forthwith.

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

H. 547.

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

An act relating to fiscal year 2007 supplemental appropriations.

Was placed on all remaining stages of its passage in concurrence forthwith.

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

Committee of Conference Appointed

S. 6.

An act relating to preventing conviction of innocent persons.

Was taken up.  Pursuant to the request of the Senate, the President announced the appointment of

                                         Senator Sears

                                         Senator Nitka

                                         Senator Campbell

as members of the Committee of Conference on the part of the Senate to consider the disagreeing votes of the two Houses.

Rules Suspended; Bills Messaged

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

S. 6; S. 116; H. 15; H. 542; H. 547.

Rules Suspended; Bill Delivered

On motion of Senator Shumlin, the rules were suspended, and the following bill was ordered delivered to the Governor forthwith:

S. 194.

Recess

On motion of Senator Shumlin the Senate recessed until 4:00 P.M.

Called to Order

At 4:15 P.M. the Senate was called to order by the President.

Message from the House No. 78

     A message was received from the House of Representatives by Ms. Wrask, its Second Assistant Clerk, as follows:

Mr. President:

I am directed to inform the Senate the House has considered Senate proposals of amendment to House bills of the following titles and has refused to concur therein and asks for Committees of Conference upon the disagreeing votes of the two Houses and the Speaker has appointed as members of such Committees on the part of the House

H. 248.  An act relating to establishing the Vermont telecommunications authority to advance broadband and wireless communications infrastructure throughout the state.

                                         Rep. Kitzmiller of Montpelier

                                         Rep. Shand of Weathersfield

                                         Rep. Marcotte of Coventry

H. 520.  An act relating to the conservation of energy and increasing the generation of electricity within the state by use of renewable resources.

                                         Rep. Dostis of Waterbury

                                         Rep. Klein of East Montpelier

                                         Rep. Smith of Morristown

H. 531.  An act relating to ensuring success in health care reform.

                                         Rep. Maier of Middlebury

                                         Rep. McFaun of Barre Town

                                         Rep. Leriche of Hardwick

Pursuant to the request of the Senate for a Committee of Conference upon the disagreeing votes of the two Houses on Senate bill of the following title:

S. 6.  An act relating to preventing conviction of innocent persons.

The Speaker has appointed as members of such committee on the part of the House

                                         Rep. Lippert of Hinesburg

                                         Rep. Flory of Pittsford

                                         Rep. Clarkson of Woodstock

Rules Suspended; Third Reading Ordered

H. 546.

Pending entry on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and House bill entitled:

An act relating to compensation and retirement benefits for certain state employees and emergency management.

Was taken up for immediate consideration.

Senator White, for the Committee on Government Operations, to which the bill was referred, reported that the bill ought to pass in concurrence.

Senator Kitchel, for the Committee on Appropriations, to which the bill was referred, reported that the bill ought to pass in concurrence.

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

House Proposals of Amendment to Senate Proposals of Amendment Concurred In

H. 523.

House proposals of amendment to Senate proposals of amendment to House bill entitled:

An act relating to moving families out of poverty.

Were taken up.

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

First:  In Sec. 1, 33 V.S.A. § 1011(e), by inserting at the end of the sentence the following: provided that federal financial participation is available for such transitional medical assistance

Second:  In Sec. 11(b), 33 V.S.A. § 1114, by striking out subdivision (b)(5) in its entirety and inserting in lieu thereof a new subdivision (b)(5) to read as follows:

(6)(5)  A participant who is needed in the home on a full or part‑time basis in order to care for an ill or disabled parent, spouse, or child.  In granting deferments, the department shall fully consider the participant’s preference as to the number of hours the participant is able to leave home to participate in work activities.

Third:  In Sec. 11, 33 V.S.A. § 1114, by striking out subsection (c) in its entirety and inserting in lieu thereof a new subsection (c) to read as follows:

(c)  A participant who is able‑to‑work‑part‑time or is unable‑to‑work shall be referred for assessment of the individual’s skills and strengths, accommodations and support services, and vocational and other services in accordance with the provisions of his or her family development plan.  The work requirement hours shall reflect the individual’s ability to work. Participants with disabilities that do not meet the standards used to determine disability under Title XVI of the Social Security Act shall participate in rehabilitation, education, or training programs as appropriate.  A participant who qualifies for a deferment or modification and who is able‑to‑work‑part‑time shall have his or her work requirement hours modified or deferred.  In granting deferments, the department shall fully consider the participant’s estimation of the number of hours the participant is able‑to‑work.

Fourth:  In Sec. 15, 33 V.S.A. § 1122(e), by striking out subdivision (6) in its entirety and inserting in lieu thereof a new subdivision (6) to read as follows:

(6)  The participating parent agrees to limit employment to no more than 20 hours per week when school is in session.  The department may establish exceptions by rule to allow the participating parent to work more than 20 hours per week.

Fifth:  In Sec. 25, by striking out subsection (a) in its entirety and inserting in lieu thereof a new subsection (a) to read as follows:

(a)  The department for children and families shall develop a three‑year implementation plan with the goal of establishing Reach First on April 1, 2008, establishing Reach Ahead for families who leave Reach Up on October 1, 2008, as provided for in 33 V.S.A. § 1203(1) and establishing Reach Ahead for all other families as provided for in 33 V.S.A. § 1203 no later than April 1, 2009.

Sixth:  In Sec. 26, by striking out subsection (b) in its entirety and inserting in lieu thereof a new subsection (b) to read as follows:

(b)  The amendments to 33 V.S.A. chapter 11 contained in Secs. 2‑13 (Reach Up), 14 (solely state‑funded programs), and 16 (Reach Up transitions) of this act shall take effect immediately when the rule changes necessary to implement the sections become final, but no later than April 1, 2008.  Until the time that the rule modifications are final, the Reach Up program shall operate under current law.  Any provisions in these sections relating to Reach Ahead shall take effect on October 1, 2008.

Seventh:  In Sec. 26, by striking out subsection (d) in its entirety and inserting in lieu thereof a new subsection (d) to read as follows:

(d)  Reach First established in Sec. 1 of this act shall be implemented no later than April 1, 2008.  Reach Ahead established in Sec. 18 shall be implemented for families who leave Reach Up as provided for in 33 V.S.A. § 1203(1) no later than October 1, 2008.  Subject to appropriation, Reach Ahead shall be implemented for all other families as provided for in 33 V.S.A. § 1203 no later than April 1, 2009.

Thereupon, the question, Shall the Senate concur in the House proposals of amendment to the Senate proposals of amendment?, was decided in the affirmative.

Report of Committee of Conference Accepted and Adopted on the Part of the Senate

S. 37.

Senator Giard, for the Committee of Conference, submitted the following report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon House bill entitled:

An act relating to mosquito control.

Respectfully reports that it has met and considered the same and recommends that the Senate accede to the House’s proposal of amendment and that the bill be further amended in Sec. 2a by striking out both instances of the phrase “and the department of health

                                                                        HAROLD W. GIARD

                                                                        HULL P. MAYNARD, JR.

                                                                        ROBERT A. STARR

                                                                 Committee on the part of the Senate

                                                                        JOHN W. MALCOLM

                                                                        CHRISTOPHER A. BRAY

                                                                        KRISTY SPENGLER

                                                                 Committee on the part of the House

Thereupon, the question, Shall the Senate accept and adopt the report of the Committee of Conference?, was decided in the affirmative.

Further Proposal of Amendment; Bill Passed in Concurrence with Proposals of Amendment

H. 522.

House bill entitled:

An act relating to viability of Vermont agriculture.

Was taken up.

Thereupon, pending third reading of the bill, Senator Kittell, on behalf of the Committee on Agriculture, moved that the Senate further propose to the House to amend the bill as follows:

First: In Sec. 8, by striking out subsection (d) in its entirety and inserting in lieu thereof a new subsection (d) to read as follows:

(d)  Any menu item that includes poultry that is exempt under this section shall clearly state the name of the farm from which the poultry was purchased and shall include the words “poultry processed on the farm and not inspected” on the menu in proximity to the menu item.  Poultry sold to food restaurants under the exemption in this section shall include a label alerting the purchaser to these labeling requirements.

Second:  By adding a new section to be numbered Sec. 8a to read as follows:

Sec. 8a.  18 V.S.A. § 4306 is amended to read:

§ 4306.  INSPECTION

It shall be the duty of the board to enforce the provisions of this subchapter and of  6 V.S.A. § 3312(d), and it shall be permitted to inspect through its duly authorized officers, inspectors, agents or assistants, at all reasonable times, an establishment subject to the provisions of this subchapter.

Third:  By adding a new section to be numbered Sec. 8b to read as follows:

Sec. 8b.  18 V.S.A. § 4309 is amended to read:

§ 4309.  PENALTY

A person who violates a provision of this subchapter or 6 V.S.A. § 3312(d), for which no other penalty is provided, shall be fined not more than $300.00 for the first offense and, for each subsequent offense, not more than $500.00.

Fourth:  In Sec. 23(a), by striking out the following: “consult with the secretary of the agency of natural resources in determining” and inserting in lieu thereof the following: determine

Thereupon, pending the question, Shall the Senate proposal of amendment be amended as recommended by Senator Kittell?, Senator Scott moved to amend the proposal of amendment of Senator Kittell, in the first proposal of amendment, in Sec. 8, subsection (d) in the first sentence, by striking out the word “include” and inserting in lieu thereof the words prominently display

Which was agreed to.

Thereupon, the question, Shall the Senate proposal of amendment be amended as recommended by Senator Kittell, as amended?, was decided in the affirmative.

Thereupon, pending third reading of the bill, Senators Campbell and Illuzzi moved to amend the Senate proposal of amendment by adding a new section to be numbered Sec. 23b to read as follows:

Sec. 23b.  16 V.S.A. §§ 912 and 913 are added to read:

§ 912.  Pupil’s right of refusal; animal dissection

(a)  Any student in a public or independent elementary or secondary school may refuse to dissect, vivisect, incubate, capture, or otherwise harm or destroy an animal or any part of an animal, or to observe any of these activities, as part of a course of instruction.

(b)  Any restaurant may offer frog legs that originated from a school dissection class on their menu if

     (1)  Any menu item that includes frog legs that is exempt under this section shall clearly state the name of the school from which the frog was dissected and shall include the words “frog legs dissected in the school and not inspected” on the menu in proximity to the menu item.  Frog legs sold to food restaurants under the exemption in this section shall include a label alerting the purchaser to these labeling requirements.

(c)  A student who chooses to refrain from participating in or observing a portion of a course pursuant to this section shall be assigned an alternative education project to learn the material required by the course.  If course assessments require harmful or destructive use of animals, the student shall be offered an alternative assessment by which to demonstrate mastery of the material.  A student may refuse to participate in any alternative education project or alternative assessment that involves or necessitates the harmful use of an animal or animal parts.  A student shall not be discriminated against based upon his or her decision to exercise the right afforded by this section.

(c)  As used in this section, the word “animal” means any living organism of the kingdom animalia and includes an animal’s cadaver or the severed parts of any animal’s cadaver.

§ 913.  Animal use in science classes and science fairs

(a)  In public and independent elementary and secondary schools, live vertebrate animals shall not:

(1)  Be experimentally medicated in a manner causing painful reactions or inducing painful or lethal pathological conditions.

(2)  Be injured in any other manner, including anesthetization and electric shock. 

(b)  Live animals on school premises shall be housed and cared for in a humane and safe manner.

Thereupon, pending the question, Shall Senate proposal of amendment be amended as recommended by Senator Campbell and Illuzzi?, Senator Campbell requested and was granted leave to withdraw the proposal of amendment.

Which was agreed to.

Thereupon, the bill was read the third time and passed in concurrence with proposals of amendment, on a roll call, Yeas 25, Nays 1.

Senator Campbell having demanded the yeas and nays, they were taken and are as follows:

Roll Call

Those Senators who voted in the affirmative were: Ayer, Campbell, Carris, Collins, Condos, Coppenrath, Cummings, Doyle, Flanagan, Giard, Hartwell, Illuzzi, Kitchel, Kittell, Lyons, MacDonald, Maynard, McCormack, Miller, Nitka, Racine, Scott, Shumlin, Snelling, White.

The Senator who voted in the negative was: Mazza.

Those Senators absent and not voting were: Bartlett, Mullin, Sears, Starr.

Committees of Conference Appointed

H. 520.

     An act relating to the conservation of energy and increasing the generation of electricity within the state by use of renewable resources.

Was taken up.  Pursuant to the request of the House, the President announced the appointment of

                                         Senator Cummings

                                         Senator Lyons

                                         Senator McCormack

as members of the Committee of Conference on the part of the Senate to consider the disagreeing votes of the two Houses.

H. 531.

     An act relating to ensuring success in health care reform.

Was taken up.  Pursuant to the request of the House, the President announced the appointment of

                                         Senator Racine

                                         Senator Flanagan

                                         Senator Mullin

as members of the Committee of Conference on the part of the Senate to consider the disagreeing votes of the two Houses.

Rules Suspended; Bills Messaged

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

H. 522; H. 523; H. 546.

Rules Suspended; Action Messaged

On motion of Senator Shumlin, the action on the following bills was ordered messaged to the House forthwith:

H. 520; H. 531.


Rules Suspended; Bill Delivered

On motion of Senator Shumlin, the rules were suspended, and the following bill was ordered delivered to the Governor forthwith:

S. 37.

Message from the House No. 79

     A message was received from the House of Representatives by Ms. Wrask, its Second Assistant Clerk, as follows:

Mr. President:

I am directed to inform the Senate the House has considered a bill originating in the Senate of the following title:

S. 115.  An act relating to increasing transparency of prescription drug pricing and information.

And has passed the same in concurrence with proposals of amendment in the adoption of which the concurrence of the Senate is requested.

The House has considered Senate proposal of amendment to House bill of the following title:

H. 99.  An act relating to a legislative interim study committee on public libraries.

And has concurred therein.

The House has considered Senate proposal of amendment to House bill of the following title:

H. 15.  An act relating to a statewide school year calendar.

And has refused to concur therein and asks for a Committee of Conference upon the disagreeing votes of the two Houses;

And the Speaker has appointed as members of such Committee on the part of the House

                                         Rep. Mook of Bennington

                                         Rep. McDonald of Berlin

                                         Rep. Barnard of Richmond

The House has considered Senate proposal of amendment to House proposal of amendment to Senate bill of the following title:

S. 78.  An act relating to having the cost of picking up and hauling milk paid by the purchaser.

And has concurred therein with proposals of amendment in the adoption of which the concurrence of the Senate is requested.

The House has adopted a joint resolution of the following title:

J.R.H. 29.  Joint resolution designating May 6-12 as Vermont Food Allergy Awareness Week and honoring children with food allergies and their parents.

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

The House has considered a joint resolution originating in the Senate of the following title:

J.R.S. 36.  Joint resolution relating to weekend adjournment.

And has adopted the same in concurrence.

     The House has adopted concurrent resolutions of the following titles:

     H.C.R. 125.  Concurrent resolution congratulating Liz Stephen on her accomplishments as a competitive Nordic skier.

     H.C.R. 126.  Concurrent resolution in memory of former Representative J. Russell Carpenter and of M. Ellen Carpenter.

     H.C.R. 127.  Concurrent resolution congratulating the nursing staff at Southwestern Vermont Medical Center on the center’s second designation as a Magnet® hospital.

     H.C.R. 128.  Concurrent resolution commemorating the 75th anniversary of the Green Mountain National Forest.

     H.C.R. 129.  Concurrent resolution honoring state employees during Public Service Recognition Week.

     H.C.R. 130.  Concurrent resolution honoring Vermont Adaptive Ski and Sports and the participating athletes on its Sugarbush ski team.

     H.C.R. 131.  Concurrent resolution congratulating the Vermont Business Roundtable on its 20th anniversary.

     H.C.R. 132.  Concurrent resolution honoring Dan Collins for over 40 years of superb service as a public educator.

     H.C.R. 133.  Concurrent resolution honoring Northfield fire chief William C. Lyon.

     H.C.R. 134.  Concurrent resolution honoring Sandra Demasi Kingsley for her outstanding 32‑year career on the administrative staff at Norwich University.

     H.C.R. 135.  Concurrent resolution congratulating the Community High School of Vermont on earning accreditation from the New England Association of Schools and Colleges.

     H.C.R. 136.  Concurrent resolution congratulating Collin Bigras on being named to the 2007 Sub-Junior All-American Trapshooting First Team.

     H.C.R. 137.  Concurrent resolution honoring the role of foster parents during foster parent month.

     H.C.R. 138.  Concurrent resolution congratulating Thomas Secoy on winning the 2007 Vermont Arbor Day poster contest.

     H.C.R. 139.  Concurrent resolution commemorating the 25th anniversary of the Vietnam Veterans Memorial, “The Wall,” in Washington, D.C. and all Vietnam War Veterans.

     H.C.R. 140.  Concurrent resolution welcoming the FISA’s 2007 international rowing tour on the Connecticut River.

     H.C.R. 141.  Concurrent resolution congratulating the Route 100B Byway Committee on the designation of the Mad River Byway.

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

     The House has considered a concurrent resolution originating in the Senate of the following title:

     S.C.R. 22.  Concurrent resolution commending the State House cafeteria management and staff for their outstanding work during the first year of the 2007-2008 biennium.

And has adopted the same in concurrence.

Senate Concurrent Resolution

     The following joint concurrent resolution, having been placed on the consent calendar on the preceding legislative day, and no Senator having requested floor consideration as provided by the Joint Rules of the Senate and House of Representatives, is hereby adopted on the part of the Senate:


By Senator Campbell,

S.C.R. 22. 

Senate concurrent resolution commending the State House cafeteria management and staff for their outstanding work during the first year of the 2007-2008 biennium.

     [The full text of the Senate concurrent resolutions appeared in the Senate calendar addendum for Thursday, May 3, 2007, and, if adopted in concurrence by the House, will appear in the volume of the Public Acts and Resolves to be published for this session of the sixty-ninth biennial session of the Vermont General Assembly.]

House Concurrent Resolutions

     The following joint concurrent resolutions having been placed on the consent calendar on the preceding legislative day, and no Senator having requested floor consideration as provided by the Joint Rules of the Senate and House of Representatives, are hereby adopted in concurrence:

H.C.R. 125

House concurrent resolution congratulating Liz Stephen on her accomplishments as a competitive Nordic skier

Offered by:  Representative Klein of East Montpelier

H.C.R. 126

House concurrent resolution in memory of former Representative J. Russell Carpenter and of M. Ellen Carpenter

Offered by:  Representative Morrissey and others

Offered by:  Senators Hartwell and Sears

H.C.R. 127

House concurrent resolution congratulating the nursing staff at Southwestern Vermont Medical Center on the center’s second designation as a Magnet® hospital

Offered by:  Representative Morrissey and others

Offered by:  Senators Sears and Hartwell


H.C.R.  128

House concurrent resolution commemorating the 75th anniversary of the Green Mountain National Forest

Offered by:  Representative Morrissey and others

H.C.R. 129

House concurrent resolution honoring state employees during Public Service Recognition Week

Offered by:  House Committee on Government Operations

H.C.R. 130

House concurrent resolution honoring Vermont Adaptive Ski and Sports and the participating athletes on its Sugarbush ski team

Offered by:  Representative Grad and others

H.C.R. 131

House concurrent resolution congratulating the Vermont Business Roundtable on its 20th anniversary

Offered by:  Representative Pugh and others

H.C.R. 132

House concurrent resolution honoring Dan Collins for over 40 years of superb service as a public educator

Offered by:  Representative Stevens of Shoreham

H.C.R. 133

House concurrent resolution honoring Northfield fire chief William C. Lyon

Offered by:  Representative Donahue and others

Offered by:  Senators Scott, Cummings and Doyle

H.C.R. 134

House concurrent resolution honoring Sandra Demasi Kingsley for her outstanding 32‑year career on the administrative staff at Norwich Univ ersity

Offered by:  Representative Donahue and others

Offered by:  Senators Scott, Cummings and Doyle


H.C.R. 135

House concurrent resolution congratulating the Community High School of Vermont on earning accreditation from the New England Association of Schools and Colleges

Offered by:  House Committee on Institutions

Offered by:  Senate Committee on Education

H.C.R. 136

House concurrent resolution congratulating Collin Bigras on being named to the 2007 Sub-Junior All-American Trapshooting First Team

Offered by:  Representative Koch and others

Offered by:  Senators Coppenrath, Hartwell, Maynard and Nitka

H.C.R.  137

House concurrent resolution honoring the role of foster parents during foster parent month

Offered by:  Representative Andrews and others

Offered by:  Senator Nitka

H.C.R. 138

House concurrent resolution congratulating Thomas Secoy on winning the 2007 Vermont Arbor Day poster contest

Offered by:  Representative Krawczyk and others

H.C.R.  139

House concurrent resolution commemorating the 25th anniversary of the Vietnam Veterans Memorial, “The Wall,” in Washington, D.C. and all Vietnam War Veterans

Offered by:  Representative Morrissey and others

H.C.R. 140

House concurrent resolution welcoming the FISA’s 2007 international rowing tour on the Connecticut River

Offered by:  Representative Deen and others

Offered by:  Senators Shumlin and White


H.C.R. 141

House concurrent resolution congratulating the Route 100B Byway Committee on the designation of the Mad River Byway

Offered by:  Representative Grad and others

Offered by:  Senators Cummings, Doyle and Scott

     [The full text of the House concurrent resolutions appeared in the Senate calendar addendum for Thursday, May 3, 2007, and will appear in the volume of the Public Acts and Resolves to be published for this session of the sixty-ninth biennial session of the Vermont General Assembly.]

Adjournment

On motion of Senator Shumlin, the Senate adjourned, to reconvene on Monday, May 7, 2007, at eleven o’clock in the forenoon pursuant to J.R.S. 36.

 



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The Vermont General Assembly
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Montpelier, Vermont


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