ACLU of Vermont Legislative e-update
Feb. 22, 2010
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Hello --
All
eyes will be on the Senate this week as it takes up the issue of
whether to retire the Vermont Yankee nuclear power plant in Vermont.
The vote is Wednesday, and it's shaping up to be one of the defining
moments of this year's session. Unlike last year's veto overrides (on
gay marriage and the budget), the Senate's Yankee vote will likely not
mark the end of a contentious process. Instead, it'll ratchet up the
heat and attention around what's already become a consuming issue at
the Statehouse.
Nonetheless, work continues in the committees on
a wide range of bills. We've been busy on a number of fronts, following
issues touching on protest rights, open government, cyber-bullying, and
medical marijuana.
This is the last week before the Town Meeting
break. After the break, lawmakers will have one more week to get bills
out of committee if they hope to have them considered by the other
chamber, and passed, this session. Legislative leaders are again aiming
for a clipped 16-week session, meaning adjournment in early May.
Considering how much more work must be done on the state budget, time
is starting to run out.
-- Allen Gilbert, executive director
-- Serena Hollmeyer, Loomis fellow
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A Fee If You Protest Your Taxes?
The
House Ways and Means Committee took testimony earlier this month on a
plan by the state Tax Department to impose a "frivolous tax protest
penalty" on a taxpayer "who raises objections to an assessment or
refund denial based on previously judicially rejected tax-protest
arguments".
It's unclear whether lots of Vermonters are raising
such objections. But the Tax Department wants the authority to fine you
up to $1,000 if you do.
Federal law allows such penalties. But
the language the state Tax Department wants is so broad as to be
arbitrary and devoid of appeal rights.
Whenever a basic freedom
-- such as the right to protest government actions -- is
restricted by government, government must identify a specific, real
problem and show how the restriction will work. The restriction must be
narrowly tailored to do the minimum to solve the identified problem.
We
testified against the provision and hope it will be dropped. It's a bit
embarrassing to see the state pick up a sledgehammer for a problem that
doesn't seem to be a major issue.
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Fetal Bills Won't Be Taken Up
Earlier
this month the chair of the Senate Judiciary Committee, Sen. Richard
Sears, announced that his committee won't be taking up any of the
"fetal
rights" bills introduced this year -- not even his own bill.
Sears told his hometown newspaper, the Bennington Banner, that there was no "consensus" around the issue, and without consensus there was little sense in moving forward.
Action, if there is to be any this year, likely shifts to the House. There, H. 605,
"an act relating to crimes against an unborn
child," has 55 sponsors, most of them (46) Republicans. The bill is
unlikely to get much attention in any of the committees, though, so the
only chance it may have for consideration is as an amendment during floor discussion of another bill.
An amendment would probably fail, but not before supporters drew attention to their cause. Op-eds and letters-to-the-editor are appearing in local newspapers around the state. Sears has been receiving small stacks of letters criticizing his action. The bills' supporters are energized.
Some
behind the efforts are familiar faces. They were involved in last
year's fight against gay marriage. The Web site, "Bennington Babies,"
makes an emotional appeal for the rights of the unborn -- ignoring the
fact that penalties for accidents in which fetuses may likely be harmed
were increased in 1991 because of the rewriting of the state's grossly
negligent operation motor vehicles law.
We and other pro-choice
advocates remain concerned that this issue is a wedge to diminish a
woman's control over her body and her personal health choices. If you
see any of your legislators over the Town Meeting break, tell them you
applaud the decision not to consider any "fetal rights" bills.
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Cyber-bullying Bill Reviewed
The House Education Committee took testimony last week on three bills concerning student bullying, harassment, and hazing.
- H. 575 gives schools the authority to punish for misconduct that occurs outside of school -- anywhere, anytime.
- H. 648 ensures private colleges adopt and enforce harassment and hazing policies.
- H. 691
is a "super-sized" H. 575. It does everything H. 575 does PLUS requires
schools to adopt state-mandated bullying policies, requires schools to
develop and teach a curriculum around Internet safety, and makes
bullying a civil offense punishable by a fine of up to $500.
H.
575 is the bill that is being most seriously considered. It grew out of
recommendations from a study committee set up by the Legislature to
address complaints about young people's offensive mis-use of the
Internet and other electronic communications -- so-called
"cyber-bullying." There has been national attention on some extreme
examples of such bullying.
Our
chief concern with bills such as H. 575 is the extension of schools'
authority to punish children for out-of-school misconduct.
We dissented from the study committee's recommendations and explained to the House Education Committee why:
- Disciplining children for out-of-school misconduct is parents' responsibility.
- Bills
as broad as H. 575 are likely to run into legal challenges. Case law is
split on schools' authority to punish for out-of-school misconduct. The
U.S. Supreme Court has not addressed the issue.
- With authority
comes responsibility. Schools could be sued for NOT intervening in
cases where parents claim their child was bullied or harassed outside
of school.
- There's already a law addressing mis-use of the Web, cell phones, or other electronic media -- 13 VSA 1027.
We
shared with the committee our written dissent, which includes
alternative language that relies on constitutional protections from the
U.S. Supreme Court's 1969 Tinker v. Des Moines decision.
Read the ACLU's dissent.
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Medical Marijuana Dispensaries Considered
Two
marijuana-related bills are in play this session. One deals with
decriminalization of small amounts of marijuana, the other with medical
marijuana.
The Senate considered and passed a decriminalization
bill two years ago (first-time offenders possessing small amounts would
be sent to diversion rather than face criminal charges). The House took
no action on it. This year, there's a bill in the House (H. 150)
for decriminalization, which the Senate says it will consider if the
House passes it. But there's reluctance in the House Judiciary
Committee -- where the bill currently lies -- to take it up.
The
other marijuana-related bill this session would create a dispensary
system to provide medical marijuana to approved patients (S. 226, with a companion House bill, H. 630).
Vermont has allowed doctor-certified, state-licensed patients to use
medical marijuana, but the law provides no way to get the drug --
unless you grow your own. Advocates would like the state to allow
marijuana to be dispensed to certified patients through "compassionate
care centers" run by nonprofits.
The Senate Government
Operations Committee has held several hearings on the bill. Noticeably
absent from the initial hearings was the state Department of Public
Safety, which last week expressed surprise such a bill had been
introduced and was being considered. (This despite the fact other law
enforcement personnel had already testified on the bill.) The
department urged the committee to slow down, and asked for a day it
could present testimony from a panel of law enforcement personnel it
chose.
The department has used this technique in the past to
show its opposition to a bill. It's a "shock and awe"-type approach,
where a half dozen officers in full uniform sit as a group before the
committee and describe what they see as the negative consequences of a
bill. The message is clear.
Thursday will be the day the law
enforcement panel assembles, in Room 10 of the Statehouse (downstairs,
on the first floor to the right of the Lincoln statute) at 9:30 a.m.
The committee, which has been leaning towards passing out a bill, needs
to see there's support for pushing S. 226 forward, despite last-minute
opposition. Come if you can, even just to be there. There is always
strength in numbers -- which is perhaps why the Department of Public
Safety employs the "panel" idea when it wants to get its message across.
After
the Legislature adjourns, we hope there will be a debate among
gubernatorial candidates on drug policy issues. Professional groups
such as the Vermont Bar Association have tried for years to draw public
attention to the need for reform; perhaps if there is some positive
action in the Legislature this year, and the public hears candidates
talking about our broken approach to drug issues, we'll see some
progress towards developing more sensible ways of looking at a subject
that's vexed our society for decades.
The
ACLU
has worked with other organizations and individuals on this issue for a
number of years. One such group is the Vermont Alliance for Intelligent
Drug Laws, or VALIDVT. There's comprehensive information on drug law reform at the National ACLU's Drug Law Reform Project's site.
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Changes Sought To Campaign Finance Law
I
reported in late January that despite ongoing confusion about which, if
any, campaign finance laws are currently in place in the state, no new
bills were being considered.
That has changed. President
Pro Tem Sen. Peter Shumlin, along with the chairs of the Senate
Government Operations and Judiciary committees, Sen. Jeanette White and
Sen. Richard Sears, respectively, have quickly produced a two-page
amendment to current law (or what is believed to be current law) that
they say is in response to the U.S. Supreme Court's Citizens United v. Federal Election Commission decision.
The
bill is only two pages long. It doesn't yet have a number, suggesting
it'll be added as an amendment to a campaign finance bill now sitting
in the House.
The new bill requires that
"electioneering communications" carry prominent disclosures stating who
paid for them. In the case of radio ads, a message identifying the
sponsor would have to be broadcast every five seconds. Penalties
for campaign finance violations would increase by 10,000 percent --
from $1,000 to $100,000. Jail time would be increased, too, 1,000
percent -- from six months to five years. Members of the boards of
directors of corporations or other organizations -- including
nonprofits -- would be liable for campaign violations by their
organizations. Campaign finance violations are serious crimes, senators said, and the penalties should reflect that. The
provision applies to so-called "independent" campaign communications.
These are communications placed by someone other than the candidate. It
was these sorts of messages that were the subject of the Citizens United case. Some
of the provisions have brought skeptical questions, both practical and
constitutional. Having a radio ad's sponsor identified every five
seconds could result in most of the ad time taken up by repetitive
identifications. The committees were reminded that Vermont's previous
campaign finance law was struck down by the U.S. Supreme Court because
of onerous provisions that didn't address real problems.
At
the core of the debate is, as Vermont Law School Professor Cheryl Hanna
reminded the Senate Judiciary Committee, the question of "how, in a
modern age with changed technology, we can best provide citizens with
the information they need to make the best decisions."
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Upcoming Civil Liberties Films At Green Mountain Film Festival
The ACLU is community partner for two films coming up at this year's Green Mountain Film Festival in Montpelier.
William Kunstler: Disturbing the Universe,
Monday, March 22 at 6:15 p.m. and Tuesday, March 23 at 11:30 a.m., both
at Montpelier City Hall arts center. Filmmaker Emily Kunstler, William
Kunstler's daughter, will lead discussions after each showing. The
father-daughter angle is one of the many interesting aspects to this
documentary on the late civil rights lawyer, whose clients included the
"Chicago 8," Attica prison inmates, and Native Americans at Wounded
Knee.
The Most Dangerous Man in America, Monday, March 22 at 4;15 p.m., Wednesday, March 24 at 8:30 p.m., and Sunday, March 28 at 4:15 p.m., all at Montpelier
City Hall arts center. Daniel Ellsberg won that moniker following his
leaking of the Pentagon Papers, a secret compilation of documents on
the Vietnam War, to The New York Times. The film has been nominated for an Oscar as best documentary.
For tickets and complete schedules, go to the festival's Web site.
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Civil Liberties Over Lunch In Middlebury
Want to talk about civil liberties as you munch your lunch?
The
Ilsley Public Library in Middlebury and the ACLU have teamed up to
sponsor a four-part reading and discussion series on challenges to and
protection of basic rights. The discussion began last week, but runs
through May 19. You can catch up.
- In Our Defense: The Bill of Rights in Action by Ellen Ackerman and Carolyn Kennedy, March 17, guest speaker attorney Wanda Otero-Ziegler.
- Gideon's Trumpet by Anthony Lewis, April 21, guest speaker attorney Mitch Pearl.
- Arc of Justice: A Saga of Race, Civil Rights, and Murder in the Jazz Age by Kevin Boyle, May 19, guest speaker ACLU-VT Executive Director Allen Gilbert.
All discussions take place at 12:15 p.m. at the library.
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Contact Information
e-mail: info@acluvt.org
phone: 802-223-6304
postal: 137 Elm St.
Montpelier, VT 05602
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