Editor’s note: Taylor Dobbs and Kate Robinson contributed to this report.
This legislative session, two judicial issues captured the headlines — the death with dignity bill and a proposal to allow police access to the state’s prescription drug database. Both attempts at sweeping reforms failed.
A number of other changes to the legal system addressed by the Legislature’s Senate and House judiciary committees have garnered little attention. This session lawmakers approved changes to divorce proceedings for gays, criminal record expungement and new child-support enforcement rules, highway condemnation requirements and search and rescue protocols.
Though these pieces of legislation may not have hit the media spotlight, many will have real-world consequences for Vermonters. Some are designed to protect the vulnerable; others make it harder for individuals to flout the law.
H.413 will allow the state to assess fines on nursing homes for cases of abuse
One of the new public safety bills that expands the attorney general’s authority to prosecute abuse of vulnerable adults — went into effect on Tuesday when Gov. Peter Shumlin signed H.413 into law at a senior center in Shelburne.
At a press conference and bill signing at Shelburne Bay Senior Living Community, Shumlin told the story of 81-year-old Daniel Wright who died shortly after moving into Green Mountain Nursing Home in Colchester in 2005. Wright was assaulted by another resident who had dementia and had a history of violence against staff and other patients. The perpetrator’s mental state made prosecution impossible. A subsequent case involving Wright’s family and the home was settled out of court.
Shumlin said though the nursing home staff did not deal the deathblow against Wright, they failed in other areas.
“None of the prior assaults upon residents had been reported as required by both state and federal law,” he said. “They were covered up. The nursing home had taken no steps to protect its residents and gave no special orders for supervisors so that other residents wouldn’t be harmed. … On the day of the assaults, nursing staff failed to take Mr. Wright’s vital signs and failed to notify the physicians of the assaults that he had endured. After his death, they failed to notify the medical examiner.”
Shumlin did not name Green Mountain Nursing Home in his speech. Sorrell confirmed Wright was a resident of the home.
Robert Sterling, administrator of Green Mountain Nursing Home, said he understood Wright’s case differently. “He died, according to the autopsy of natural causes and everything,” Sterling said.
Wright’s death was one of the cases that spurred the attorney general’s office to seek a legislative remedy.
Assistant Attorney General Linda Purdy, who investigated the case, said autopsy results stated Wright’s primary cause of death was natural, but his conditions were complicated by the assaults.
“He died of both some cardiovascular problems and the secondary cause, which they couldn’t really quantify, was the attack and the injuries he sustained,” Purdy said.
The nursing home’s attorney, Scott McGee, said that despite the tragic nature of the events, staff at the home were all doing their jobs correctly. “As far as we were concerned, all the right steps had been taken,” McGee said. “In these kinds of things, people can second-guess lots of steps. Everyone was working in good faith.”
Sorrell’s office threatened a civil action against the nursing home, but found they didn’t have strong legal footing to do so.
“We wanted more clear legal authority to bring such a suit,” he said.
H.413 does exactly that, Sorrell said. Under the new law, the state may bring a civil action of up to $50,000 against a nursing home or individual caretaker where neglect, abuse or exploitation results in death and other actions for lesser amounts when the victim survives.
H.535, Bias-free policing
For the first time, local law enforcement will be required to adopt bias-free policing policies and to collect racial information from routine traffic stops.
H.535 requires all Vermont law enforcement agencies to implement “bias-free” policing policies designed to deter police from racial discrimination. The policies would be based on Vermont State Police guidelines and recommendations the Attorney General’s office made to the state’s 73 independent policing entities in 2010. About 30 municipal police and sheriffs departments have policies addressing racial discrimination.
The growing disproportionate representation of blacks in prison has raised questions about racial bias among law enforcement officials and the court system.
H.758, dissolution and divorce
Gays from out of state who obtain civil unions or marriage certificates from Vermont have had no way of dissolving that union or divorcing in home states that didn’t recognize their Vermont status.
This bill makes it possible for couples to break up through a no-fault process based on mutual agreement.
Previously under Vermont law, gay couples had to live in Vermont for six months before they could get a divorce or dissolution.
S.37, expungement of a nonviolent misdemeanor criminal record
This bill creates a process for expunging the record of an arrest or conviction for many nonviolent misdemeanors.
Sen. Dick Sears, D-Bennington, says he supported the legislation because he heard from Vermonters who had been arrested and convicted of minor crimes 20 to 30 years ago for possession of small amounts of marijuana and other petty offenses but who hadn’t been in trouble with the law for decades and wanted to apply to have their records expunged.
“The bill provides a process for people to apply to state’s attorney in the county where they were convicted,” Sears said. “If they are clean of any crime for 10 years or more … they can apply to have the record expunged.”
The basic conditions? Ten years must have elapsed, any sentence must have been completed, restitution paid or conditions met and there can have been no subsequent criminal convictions. The final decision is at the discretion of the court.
Certain offenses, such as sexual exploitation of children and violation of a protection order, cannot be expunged.
When the court decides in favor of removing the criminal record, it issues a certificate that “must state that such person’s behavior after the conviction has warranted the issuance of the order.” The FBI and all other agencies which have or might have the record are notified. The statute requires that from the time the certificate is issued the person “be treated in all respects as if he or she had never been arrested, convicted or sentenced for the offense.”
S.203, child support enforcement
According to a report from the Department of Children and Families, about 30 percent of court-ordered child support goes unpaid each month. The state of Vermont has nearly $100 million in unpaid child support on the books.
Under a new statute, parents who refuse to pay child support may be subject to civil contempt. If the court finds the individual in contempt, he or she may be required to search for work, participate in employment, educational, or training-related activities. If the individual fails to complete the court-ordered program, he or she may be subject to incarceration.
Sears said, under the new provisions, the nonpaying parent “holds the keys to jail cell” — he or she can be released from prison by paying up or complying with the court’s recommendation.
While the state can’t hold someone in jail for lack of funds, it can detain an individual for contempt of court.
Though scofflaws wouldn’t be held for long, Sears said “it’s enough to grab some people’s attention.”
The legislation softens requirements for parents who are willing to make payments but who have been hurt by the economic downturn, Sears said.
The bill also revises the options for calculating available income in determining child support, and it makes it easier to get relief from a default child support order if the parent can show the court used incorrect financial information in calculating income.
S.122, human trafficking, prostitution provision
If someone is convicted of prostitution and can show they have been a victim of human trafficking, the court can allow the individual to file a motion to vacate.
Once the motion is granted, the victim’s name is removed from all the related court records.
The victim need not have reported the crime of human trafficking to law enforcement before the arrest. Various protections are now offered to victims of human trafficking that parallel those provided for victims of domestic violence, sexual assault and stalking, such as providing lists of counseling and shelter services. State services will now be revised to meet the needs of human trafficking victims.
S.115, a bill barring ineffective assistance claims against assigned counsel
Some defendants have sought to hamper the criminal justice process by suing assigned defense attorneys who were in the middle of litigating their cases, according to Defender General Matthew Valerio.
Valerio says S.115 bars defendants from inappropriately manipulating the system. “Now you have to follow the normal process and get redress through courts before suing your attorney,” he said.
“It doesn’t take away your rights to pursue a negligence case, it just tells you what order it has to be done in and by doing that it prevents individuals who for the wrong reasons are attempting to manipulate the criminal justice system,” Valerio said.
Valerio’s office hires more than 50 lawyers a year to work on contract with the state. These attorneys have to purchase their own malpractice insurance. There was a concern that the lawsuits against some contract attorneys who are doing serious felony work with the most difficult clients and getting a number of claims could get to point where it would be difficult to obtain malpractice insurance.
Convicted criminals had been taking a page from Michael Brillon, who was sent to jail on a domestic violence charge and went through six assigned public defenders. His case went to the Vermont Supreme Court, which ruled that his right to a speedy trial had been hampered, and eventually the U.S. Supreme Court, where justices ruled that “delay caused by the defense weighs against the defendant.”
H.751, juvenile delinquent custody
This legislation allows 16- to 17-year olds who have committed minor crimes the option to stay in state custody and receive services for an additional six months.
That additional time could make a difference for some kids, Sears said. The bill also calls for a study to evaluate the success rate of the juvenile system.
Editor’s note: This story was updated between 5:15 a.m. and 6:30 a.m. May 16.
