 S7, one expungement and I would would it be preferable to have the redraft on our green chairing to go over and see where people have issues. I forgot to say this is Senate Judiciary for taking up S7 on expungements and it is February 23rd one day after George Washington's birthday. So why don't we go through the it's a 23 page bill that I didn't print it out this time. Go ahead Bryn if you could. Okay so good morning committee for the record. Bryn here from Legislative Council here to talk about draft 1.2 of S7 the expungement bill. Can everyone see it on my screen okay? Yes, thank you. Okay so this bill I just wanted to preface my remarks this morning by saying that I did send out a draft 1.1 of this amendment last week I believe or maybe it was something and I this draft 1.2 is substantively the same as draft 1.1 I did just make a couple of technical changes at the request of Marade and some other witnesses I believe. So for all of the witnesses who want to who are concerned that this might be very different it's not it's substantively the same as what was sent out on Sunday. So I'm going to just jump right in and start with the first change which is I believe on page three and this is that we've I've removed the strike through of subdivision B for that cross reference to gross grossly negligent operation of a motor vehicle resulting in serious bodily injury or death the committee will remember there was some discussion about about that what was supposed to be a technical amendment may have had a broader impact and so we we fixed that. So I move on to page four this is a new section that was put in at the request of Marade from legal aid and if you remember this this is the new language on the surcharge makes a change to this statute in the fines costs and penalties chapter of title 13 and the intent intent of this language is to operationalize that change that you made in the miscellaneous judiciary bill last year that provided that courts can waive surcharges associated with petitions to seal or expunge so this language really is just intended to operationalize that change that you made last year. Somebody leaving a long message on my phone I muted myself. Any comments on this change from anyone? Okay so I'll keep going quite a bit of scrolling here apologies so the next change is on page eight and this is a change to the definition of subsequent offense and this is really clarifying that a subsequent event offenses the conviction of a crime a later crime that is committed by the person who's who's petitioning to have their records sealed or expunged and so that just tightens up that definition so it does not apply to charges subsequent charges it only applies to subsequent convictions. Bryn. Comments. Yep Senator Benning. Sorry that I think that was me Dick. Oh I'm sorry Senator Baruch how could I mistake two of you. So does that mean that someone could be currently charged and in the process of being adjudicated but not yet convicted and be allowed to seal or expunge? Depending on the circumstances yes so as you know that the expungement section has various timeframes that are associated with being able to petition for a seal a sealing order an expungement order so if a person was charged and being adjudicated it's possible that they may have that position be able to move forward you may want to hear from other other people who are like Judge Gerstin may have a comment on that. Yeah that sounds a little this is where I'm a little confused so just so I'm clear I was convicted of automobile theft grand larceny of an automobile and then 10 years later I asked to have it expunged but I've got a conviction for the same offense pending. Does this say I can get my old one done? So again I think it's as you know the statute is so complicated with the timeframes that it sets out that it would depend on how how long it had been so subsequent offense sort of starts the clock for waiting for eligibility for being able to seal or expunge so depending on the time frame it's possible that yes you would be able to if you were just charged with another offense and hadn't yet been convicted depending on how long it had been. All right any comments from anybody in the audience? James Pepper, state's attorneys. James Pepper from the state's attorneys and chair thank you. That it's that is true the situation that you laid out senator is would be true there is always the ability there is some discretion with the state's attorneys to not stipulate to the petition for instance if there was a pending charge that looked pretty likely that it was going to lead to a conviction that person would then be entitled to a hearing where the state's attorney could lay out his or her objections to the granting of the expungement and ultimately a judge would decide one way or the other whether granting that expungement for that 10-year-old conviction while there is a charge pending was in the interest of justice so there are some checks and balances that would remain even with this language. Can somebody get their arrest expunged if they weren't found guilty? Yes that's uh dealt with in a separate section of the expungement chapters right yeah that's almost that that's a very quick expungement without a waiting with only a 60-day waiting period yeah um especially in today's does the state do the state's attorneys support this language or suppose this our support of this language I think it is a helpful clarification about what subsequent offense means because I think that the way that the statute currently is written leaves some level of interpretation that can lead to some of the disparities but I think this highlights a subsequent part of the bill about who can stipulate to early petitions whether it should be both the state's attorney and the and the attorney general or just the state's attorney or the only the or just the office that prosecuted the offense because that office will know about these kind of subsequent offenses better than perhaps the office that's not prosecuting me or didn't prosecute the offense so the short answer is yes uh the state's attorneys are supportive of this Senator Sears this is Judge Grierson for the record Brian Grierson Chief Superior Judge the way that Pepper just described the scenario if a petition came into the court and there was a charge pending and there was no agreement by the parties the court would have to look at whether or not it would expunge in in the interest of justice with a charge pending and I'm depending on the nature of the offense the history the court would have that discretion so the way he described it would be the way I would also interpret it okay thank you other questions or comments where we move on to section three okay I'll move down to page nine on section three and in subdivision two this is new language that we were just talking about with respect to the office that prosecuted the offense so this language was suggested by the state's attorney's office notwithstanding any other provision of law only the office that prosecuted the offense that's the subject of a petition can stipulate to that petition prior to the date that the offense is eligible for sealing our expungement um any thoughts on this one or many of the many or witnesses senator if I might david share with the attorney general I just wanted to remind the committee we already had a back and forth on this but I did want to remind the committee that this is a section that we object to for the reasons I spoke about last time we discussed the bill with respect to allowing the attorney general's office to serve as another entity that can process these expungements especially where there's high volume in some counties and although we have not and would not attempt to overrule the state's attorneys I think having that ability for there to be another entity looking at these possibilities does help promote statewide consistency and lower disparate outcomes so for those reasons we we do object to this and senator this is marshall paul from the office of the defender general I'd like to chime in also we object to this provision for basically the same reasons the attorney general's office has mentioned I mean I think what we've seen around the state is at least at different times given different um different state's attorneys there has been you know all kinds of reasons why state's attorney's offices have been unable or in some cases unwilling to stipulate to expungements but the attorney general's office does and sometimes that's just a matter of resources I mean we've approached state's attorneys regarding stipulated expungements and had the state's attorneys essentially say they don't have time to deal with that problem and then approach the attorney general's office and been able to negotiate a stipulated outcome that really wasn't you know nobody objected to it it's just that the state's attorney's office didn't want to deal with that process at that time so I I think that to the extent that we don't have the attorney general's office having the ability to stipulate to these expungements it's really just going to increase geographic disparities there's going to be state's attorneys who approach these differently than other state's attorneys and the AG's office can serve as sort of a backstop to provide sort of one unified you know um sort of option of last resort and option for state's attorneys offices that are would otherwise be overwhelmed with petitions so we certainly don't support this amendment and honestly you know frankly I don't quite understand the objection or the you know the reason for including this amendment um you know I mean I guess I gather that there's a concern among state's attorneys that the AG's office will stipulate to expungements that the state's attorneys wouldn't stipulate to I don't know why that that can't be worked out between the state's attorneys and the AG's I mean I can't imagine that the AG's office would really want to you know engage in that type of conflict with the state's attorneys nor that judges you know if that kind of conflict was evident would actually be finding it in the interest of justice to approve a stipulated early expungement unless somebody was being totally unreasonable to me this just provides a really important backstop and a means to make these expungements a little more consistent around the state. Senator Sears. Yes Senator White. So I understand the why the attorney general might be able to be a backstop here and be included but the way I read this is that leaving the AG out of this the way I read this is that if a an offense was prosecuted in Essex this chitin then state's attorney couldn't stipulate so maybe we just add something in here that says other than the AG's office it can only be only the office that prosecuted the offense because I don't know that it makes sense to have other state's attorneys offices stipulating to the expungement petition so I don't know if that helps or muddies it at all but to me that kind of muddies it in a way. I mean you wouldn't want. Here's the problem that I see here we've had these days like in the Moyle County for example if the prosecutor and the attorney general decide to hold a expungement day and somebody from Caldonia County arrives does this mean that they can't have their record expunged on that day? Could I respond to that? So it would be fact dependent what this amendment is saying is that this only applies when someone wants to waive the waiting period like the example you gave earlier about the grand larceny over $900. If someone showed up you know there's a current waiting period pursuant to this bill I think of 7 years or 10 years and if someone wants to show up after a year and the attorney general is willing to stipulate to that petition his office would have been the one that had to have prosecuted that case in order for him to stipulate you know if it was all this is saying is that in order to waive that waiting period which I think we've you know there's certain certainly evidence to show that the waiting period is an important aspect to expungement then it has to be the prosecutor's office that prosecuted the case. I do think that the language should be clear that the only thing we're talking about here is the waiting period. It's on line 18 that's what we were trying to get at is that may stipulate to the petition prior to the debate prior to the date the offense is eligible for sealing. In my reading of it I didn't I didn't understand that's all that's all I think it should say a petition to shorten the waiting period or whatever the term as we use that would be fine the intent is not to remove the state's the attorney general all together it's just for the the petitions that are trying to waive the waiting period. Okay, ready? What do you want to do? Senator Bennett. So I can't remember whether there's a provision elsewhere in this that describes the respondent as being the state's attorney who prosecuted the case and I can't scroll this because I'm not in control but I understand the logic of making it clear that it would only be the state's attorney's office that prosecuted the offense or the attorney general for the rest of this provision. Otherwise your your potential for forum shopping is there. Okay, so if we could insert language that makes it clear to me anyway is the committee okay with this language if it's just as long as it's clear it's just the petition to waive the waiting period. Yep, I am. I am as well. Yep. Moving on to page 10 this has to do with the restitution. All right, so this is new language that we added that is getting at the issue of what of a person's eligibility for expungement or ceiling if they were serving a term of probation that was dependent upon their payment of restitution. So it provides that anyone who's serving a term of probation for a qualifying offense that's dependent on their payment of restitution becomes eligible for ceiling or expungement once they've satisfied that restitution order as long as the other eligibility criteria that are set forth in the statute are met. Brynn? Yes. I may be confusing something but I thought that was already the case. Does this change existing law or does it make it? I think what changes it is that there are waiting periods that are imposed for when a person completes like satisfies the judgment. So I think that the idea here is that once a person has paid their restitution then those waiting periods don't have to apply if a person completes their probation at the same time that they complete their restitution order. So I think what changes it is it makes the person more quickly eligible to have their record expunge your ceiling. Okay, got it. Brynn, what page is that? 10. Thank you. Page 10 lines 8 through 11. Everybody okay with this? Just a question Senator and to Brynn, so does this mean I mean presumably the person would have to be discharged from probation at the same time? Yes. And that's what that's what really would start the clock running. In other words, if they've paid the restitution and that's the only reason they're on probation at that point. Presumably they would be discharged from probation and that would start the clock running on whatever time frame this offense falls on. Yeah, but does that line up with the probation bill? That's why I was asking Senator. That's 45. So we we asked the question again. Does this line up with S45 where you can get off probation and have a look at S45? In other words Brynn, I don't think unless you tell me if I'm wrong, I don't think you want this provision to mean that if they're on probation and there is a these have to be an old case where it's a condition of probation they pay restitution because we do not do that anymore. But presumably if they've then paid their restitution in order to be eligible for ceiling or expungement they would still have to have completed their sentence i.e. it have to be discharged from probation. Yes. Okay. Judge what about those old cases that somebody for instance has been given a probation term of say five or ten years? You know I think if just my opinion Senator Benning is that if someone has completed restitution under one of those old probation or restitution while on probation orders they should be encouraged to come in and then petition for discharge from probation if that's the only thing that's keeping them on probation. I'm not going to disagree with you, but this would enable them to apply for relief under the expungement statute whether they're petitioning the court for discharge or not. That's why I was asking the question because I don't think that's what would be intended. I mean I agree with you that's why I asked the question because being eligible for ceiling or expungement still requires them to otherwise qualify which would mean they have to be they have to have completed their sentence and whatever the waiting period is for ceiling or expungement have to kick in. I just don't want to have that term of probation and a person petitioning the court especially in the days of COVID to hold up a potential expungement. Well they're going to be held up if in my view if they haven't they've got to complete the sentence with restitution only being one portion of it but and if that's the only thing that's keeping them on probation that's why I'm saying at that point upon completing the restitution judgment order they should be petitioning the court to be discharged from probation which would then make them eligible for whatever the time frame is for ceiling and expungement. Let me ask it a different way judge is there any harm in leaving this language just the way it is? Unless someone unless someone interprets it and I guess that someone could be a judge or a state's attorney I guess or individual interprets it that completing restitution alone makes you eligible for ceiling and expungement and I just don't I don't understand that's really what you want here. Well I think we agree that this deals with only old cases because we don't do this anymore but if a person who is pro se approaches the attorney general or the state's attorney and asks for an expungement the state's attorney and or the attorney general are generally not going to petition at the same time for a discharge from probation that would normally be the defendant themselves who do that. I agree well I don't want to have a situation where a pro se individual is still on probation can't get off probation and can't get the restitution I'm sorry the expungement given to them because they've got assistance of counsel if you will on the one hand for the expungement but not on the other hand unless they go through a more formal process to have that petition for discharge granted. If I understand your question senator you would then be asking the court to consider sealing or expunging a case that is still a live case in other words is still the person is still on probation for that case and that that just yeah I see your point doesn't doesn't make sense if I might I think the language in here is a little confusing I think it I mean I think that what we what was trying to be accomplished here was to deal with cases like Ms. Reddick where someone was put on probation and a term of their probation was paying restitution and the only reason that they stayed on probation for like you know 10 or 15 years rather than two or three years was because they had to do their restitution and now that they've completed their restitution it would seem you know incongruous to make them wait 10 more years to seek expungement just because they were one of the unlucky few who still left on probation with a restitution as a term of probation and so I think that what this language is trying to say it doesn't quite say and I think maybe if we modified it to say something along the lines of and I'm just doing this off the top of my head so I don't know that this will come out quite right but that if a person is serving a term of probation that contains a condition requiring the payment of restitution that they shall be eligible for sealing or expungement after and I'm just making this up but it could be something like you know whatever the waiting period for that offense is after that period of time has passed since the statutory minimum term of the sentence has passed as long as the restitution is fully paid off. Marshall I appreciate that thought but I think what I'm going to do is I'd like to get it right before we vote it out so we have some time Friday morning and at the end after we've gone through the bill this may be the only change that we need to make but I'd rather have you and state's attorneys and Brent and the judge all on the same page on this so that we do get it right and make sure that we're dealing with that situation so I wonder maybe we can come back to this if we have more time this morning or if we need to we've got Friday morning to take care of this. And I don't disagree with the concept behind what it's trying to do it's just we need to straighten out the language. Yep okay so could we move on and then either come back to this this morning or see if that's the only issue that's outstanding for the committee deal with it Friday morning we're going way through this thing. Yep so the next change is on page 14 and 15 we've just added some subheadings intended to make the those specific subsections of the expungement statute a little bit clearer. The next substantive change is on page 17 so this is these are the requirements for sealing or expunging on a qualifying felony property offense and then transporting regulated substances offenses so currently under the current language it's qualifying felony property offenses are barred from expungement after sealing the record if the person is charged with a subsequent offense and the language here was recommended this was a part of the recommendations that came in from legal aid and what this does is it narrows that limitation the subsequent offense limitation so that a person who is convicted of a subsequent offense is still later eligible for expungement of that sealed record unless they commit a listed crime within seven years prior to their petition or a non-listed crime within three years prior to their petition to expunge so rather than cutting off people who are later convicted of a subsequent offense it just narrows the eligibility for expungement for these types of offenses any thoughts on this section anyone committee or audience well the three years i'm wondering i i heard brin say that came from legal aid how does that accord with that seems like the quickest interval i remember us considering in terms of these waiting periods is that so brin um i will need to check on that i can't remember any of the other um language having something that quick because you could have somebody who three and a half years ago um was convicted of an offense that's that's pretty recent um so that's that's my only question there i would just um so this is once a record has already been sealed i just was i want to point out that we're not talking about the waiting period to have it um have the record dealt with it all this is for records that are already sealed um to expunge those already sealed records just to be clear yep i i think my question's the same okay um i'm just wondering if we're because maybe i'm wrong but it seems like these things will eventually all move to a common point and are we establishing three years as a as a time frame it it it just seems seven years ten years those those all seem like intervals where you could judge someone's changed behavior or a demonstration of that the fact that their other offense was a an outlier everybody okay i'm not i i wonder i'm gonna take care of something okay um does anybody have comments on that piece of language and i i i can't see you so you just speak um if you do um good morning this is moray dorayli from vermont leglade i'm not sure if anyone from the committee wanted to speak but if not i'll i'll go ahead to this for a second so the in front of what happened that part of old age is you start bleeding sometimes oh wow i need to get rid of it um so part of the intention behind this oh excuse me where are we on this one do you want to come back to this or are we marina marina is um gonna speak to it if that's okay good yeah so um the intention behind this proposed amendment and it is a bit different from what we had originally proposed um but the intention is that it's these timeframes are supported by the literature on recidivism which say that for minor crimes you know a three-year period of time is really sufficient to show that a person has changed their behavior for some of the more major crimes um seven years is is the comfortable mark um if if a person hasn't not recidivated within seven years um you know there's not a real threat to public safety um and you know that person is um just as likely as anyone else to commit a crime um so i was just attempting to sort of track the our policy with what the literature suggests i think in my original proposal um there were a couple of additional crimes it wasn't just the 5301 seven i think there were also some i had listed um the sections that laid out some of the felonies um and the predicate offenses as well and was really just looking to get those the misdemeanor crimes um as the ones that that uh where the look back period would only be three years um if that makes sense is is there anywhere else in this um in this set of statutes where we have three years not yet and and this is you know been sort of a continued conversation that we've been having to to attempt to sort of track that um the research with how our our laws are being drafted but um it was a proposal so okay senator david here if i might comment just on the drafting uh and what i think the implications are and and murray can certainly correct me where i'm wrong but as i read this proposal it's not actually shortening the timeline it's just changing the conditions for eligibility after the time has run um setting aside the the waiver possibility for now um so you know section one of this of this part of it notes that you've got to wait eight years for the ceiling and then and then section two still requires an eight-year waiting period before the expungement can happen all that's changing is set is the conditions uh which allow an expungement to happen it's still got to wait the eight years but now they're saying if you haven't committed these offenses in this period of time you get to have that expungement um if you did commit one of those offenses then you got to wait uh or basically it just qualifies you but the the the change is not so much shortening the waiting period as just changing the conditions that you have to meet after the waiting period has run well conditions for eligibility um that's right yeah so yeah so you know you've waited your eight years and if in the three years prior to that um you didn't have an offense that's outside of the listed offenses you qualify but you still had to wait the eight years um well in in a sense i mean it's semantic right if if you committed a uh a disqualifying crime then you haven't waited the eight years right because you you'd still have to wait longer to get past the disqualifying crime so that's right that's i think i think we're understanding each other i think that's right and and i and i would just reiterate that the eight years still has to be waited um in any case i yeah i guess unless i'm reading it wrong it just sounds like um if i were reporting this on the floor and somebody asked me a question uh which i don't plan to report this by the way um i would be hard pressed to try to explain this piece and i think um it's just not clear to me i'm reading it yeah so if you're not if you're not convicted of a listed offense within seven years prior to petitioning for expungement or you have not been convicted of an offense not listed within three years of petitioning for expungement i it's it's uh it's kind of frustrating not to be able to scroll this because i keep wanting to scroll up to see the section you know what are we talking about yeah we're looking at a at a sentence in isolation um okay a quick stop there a criminal history record sealed pursuant to the subsection eight years after the date on which the ceiling order is issued okay so so there's a clock after sealing of eight years and then eight years goes by you can get it unless you were convicted um within seven years for a listed crime or three years for an unlisted crime so if someone uh let's see if someone in the sixth year of the eight-year clock committed a crime that was unlisted they would be ineligible for another year so that that would make the the elapsed time nine years before they could get a ceiling so the the three years of position petition or the seven years just adds years on to the eight-year clock that's what i look at i i agree with that senator that's that's how i read it okay so so my question is if we say three years for unlisted crimes we're we're rendering that addition of years shorter than in other areas it seems to me we're we're sort of we're we're reducing the look back period to an interval that's shorter in other areas shorter than in other areas of our expungement and sealing um so you could wind some up with somebody who um waited their eight years and committed a crime just over three years ago and they would be eligible for expungement and that that i i understand what morade is saying which is it's an attempt to nudge our sealing and expungements towards shorter periods because the literature goes there but it seems to me somewhat at odds with what we've been doing which is this person has committed three crimes and the last crime was only three years ago i don't know if that was to me but i can answer i mean i think the please anybody let's say it's two to keep it simple and the more recent crime was two years ago um you know that one isn't eligible most likely for you know obviously again i'm going to set aside waivers here is that one isn't eligible uh so you know that one's still on the books but the one that the one for which the individual completed the sentence at least 16 years prior because remember this is two eight-year waiting periods we're talking about um that that one would then be eligible after they've finished out that three-year period so it's a very old offense we're talking about here and and again the intention is just to ensure that people who have felony property crimes are not barred forever from expunging those offenses so under under the bill as introduced um petitioners would be eligible to seal it um and they would be barred from expunging if they ever had a subsequent offense after the offense that's been sealed um our language was an attempt to rectify that to ensure that after some amount of time and as david uh stated it's it's quite a bit of time but after some amount of time that record can actually be you know wholesale expunged david could you just explain the two eight-year periods now now i'm again confused yeah so against senator the challenge here might be just not having a scrollable text but the um we're looking at subsection two and subsection one lays out the eight-year waiting period before you can seal the record yeah subsection two it lays out the second eight-year waiting period before you can go further and expunge the record yeah and again marita's right that what this amendment is doing is simply saying that you could remain eligible for expungement even if you commit a subsequent offense whereas the prior proposal basically said you lose the ability to expunge forever and okay uh so if i could just bear i i i feel as though the whole push behind sealing and expungement is to help people who have obviously stopped committing crimes long periods of time have gone by and in which case the state goes through a great deal of bureaucratic effort to help them by sealing and expunging to the extent where expungement used to mean literally pulling out tapes and erasing things so um you know we've been doing a lot of good faith effort if somebody committed a crime even an unlisted crime just over three years ago should the state be in the business of cleaning up their earlier record if they're you know in in three years ago is not a long period of time i i just i think at that point they're actively showing criminogenic behavior why would the state go to the trouble of cleaning up their past record for them at that point um i can i weigh in yeah yeah i i do think that if somebody has has committed a crime and 16 years goes by in this case it would be 13 years goes by and they haven't done anything and then they they um lift a pair of socks or um steal some food at the grocery store or whatever that that is not i mean i think that they we should expunge their old old record i i just think that this is um putting people why would anybody try anyway i i think that we need to i like this i think that um if somebody commits an unlisted crime which could be pretty minor within that three-year period they've clearly been good for 13 years and now they commit some um minor um mis some misdemeanor and we're gonna slap them on the hands for their actions 16 years ago we're gonna go back to that so i i like this actually it may be confusing but i like it this would include unlisted felonies yep so you said misdemeanor well it could be a misdemeanor but it could be a felony it could be i'm in the field camp all right this is uh james pepper from the state's attorneys um you know i was having a hard time really understanding this provision as well but i think i have it now um but uh one just complication that i would throw in there too is you know you're talking about subsequent offense subsequent offenses that are listed offenses someone could be under sentenced and seeking to expunge a prior felony and say what you will about habitual offender statutes but that could have an implication on if you expunge a prior felony that was one of the you know three prior felonies that led to a habitual offender enhancement then all of a sudden you know there would be a PCR post-conviction relief petition to to eliminate probably the sentence that that enhancement so there there is another complication here that's just we've started to see a little bit um with the expungement expansions in the past but it's just one complication that i think should be brought to the attention of the committee for this provision so you're opposing this i i think you know with respect to the i mean i should say the state's attorneys the subsequent offenses that are listed offenses uh where someone might still be under sentence um you know attacking the underlying uh trying to expunge the underlying convictions is somewhat problematic and i think that that's why you know having them sealed is a good path to go down but uh i think the state's attorneys and again i i don't think i really fully understood the implications of this section until we you know the committee just discussed it but um i think the state's attorneys would be opposed uh for some several reasons may i just ask a question for clarity because i think some of that i don't know what attorney pepper just said confused me so pepper are you saying that there's cases right now where someone has expunged a felony that was the basis for a habitual offender enhancement and then filed a pcr to try to undo the habitual i think that that's what this would lead the door to i'm just trying to clarify because you said it's happened to some degree what can you tell me what's happened to some degree because i was asking questions like this of our prisoner's rights office and i didn't hear anything like this so it's kind of a surprise that i'm hearing it and i'm just trying to clarify what's actually happened have there been cases when people have filed pcrs to undo a habitual based up because they've expunged one of the felonies that was the basis for the habitual what i'm saying is i think this opens the door to that i can find uh i can ask the state's attorneys if they've seen it in the past no no no my question was specifically just because you said that this has happened and that was concerning to me because i tried to sort of look into well and martial happen that's a different story and i'm a lot that makes me a lot more comfortable if this hasn't happened i i hear james saying that um he is worried that that may happen and he's willing to check and see whether it has actually happened and i i think that's great i'm just saying because it had happened and that was totally contrary to my information and i wanted to before i said anything that i was using accurate information to me it had not sounded like it had ever happened but then james was saying it had we're gonna hold we're gonna hold this one until friday i guess and hopefully senator nick will be mad but if i might add that um brin i would like to see it an alternative language that only allows the a misdemeanor i don't disagree with senator white's comments about hopefully somebody stealing it some food would not be prosecuted in the state who was hungry small enough not a trailer truck but i would like it limited to a misdemeanor okay and do you have a time period that you'd like no the three years for me that right now i'm trying to figure out exactly what this does and give pepper and marshal a chance to look at further at it um but i think i at any rate if we were going to do this i wouldn't want to see felonies included in it i would i would prefer personally i'm gonna vote for it to say this is misdemeanors and people can make a minor mistake and that's the other thing that i probably should have added before is my reading of the bill as introduced um is that any offense um that was committed after the seal defense even if it was very close in time after the seal defense would uh vitiate the opportunity to get that seal defense ever expunged so does that make sense um that was also part of the concern that just because of the the timeline of when offenses were committed if you're eligible for a seal defense and then the very next year or you know two years down the line there's another offense on your record that seal defense is forever sealed and i was attempting to sort of fix that as well um because that just seems a little bit illogical and unfair um i'm not sure if there's a way to fix that i think we need a roadmap why don't we keep moving on i hesitate to say it senator but i have to after listening to the discussion that when we talk about automatic sealing and expungement this is a good example of why why it's not and that's why i'm glad to see the language in the latter part of the bill that we can at least talk about a different process i i was just gonna before judge greerson spoke up i was gonna say this reminds me of his um periodic calls to consider getting rid of the two tracks and just having one track um because i i feel as though we're we're creating a a web of interwoven requirements and timelines that you know i'm just thinking about trying to count days of good time and how complicated that got um so you know um i would be really at a loss to try to take an individual fact pattern and figure out what the actual abilities for that person were in terms of sealing and expungement i didn't like the two tracks when we first started talking about this my only recollection of why sealing was requested was that there were um individuals who might be migrant workers who needed to have some proof that they had an actual um conviction out there and i'd never understood the logic behind that but this has never made any sense to me and i wouldn't want to be the one on the floor trying to explain this process at all this the sealing i think is also because you have certain uh predicate offenses and without um without a process of sealing how do you get back to the predicate i guess the the other way to answer that would be that there's only one thing called expungement but is in effect sealing in other words the records are still still there i forget who has testified numerous times talking about access the question always being that it's about who has access yep um who is that janette i think it was um well i do know that it was the guy from me um and from council of state governments oh that's right that's right did talk about that and that most places have only one process but then they have there is limited access there's only certain people can have access and for only certain reasons and that seems to me to make imminent sense to to do it that way yep and i don't i'm not going to take credit for that senator bruce but that's that's what i've been trying to say for some time it's access meaning who for how long and under what circumstances that's what we should be focusing on yep and that we heard that from a number of people including judge gurus and i'm sorry i no no don't worry about it moving right along line 10 right so are we moving are we moving past this section because i just wanted to point out that subdivision three has that um that's right it allows the allows that record to be expunged with the stipulation of um the prosecuting attorney may i ask a question before we move on yep which on the expunge or on the well my question is since um we have heard from many people and now uh seemingly three committee members about having only one one track here and limiting the access as was suggested by judge gerson should we even start re-looking at the way we do this at all and not passing an expungement bill but just re redefining the whole system is my question okay um so we have one more change to get through before we get to the study committee maybe talking about the study committee would would help everybody think about that question that senator white just posed yeah okay thank you so um the last change before we get to the to the directive to the sentencing commission is another request from illegal aid it includes some language that would require the court to make a reasonable effort to notify people who have had their records sealed that they may be eligible for a subsequent expungement after a required waiting period and we mirror the language that you use in s45 about um notice to victims about what a reasonable effort to notify means okay any discussion about that or shall i move on to the okay mr chair yep could we hear about um that from either the uh maybe judge gerson in terms of the the that's as i understand it that's putting a requirement on them that they don't currently have is that correct judge gerson uh yes um so the original language that was proposed was making the reasonable effort to notify the person and i i was suggested to brennan she incorporate that language from s45 i mean the way i see this playing out if if the person comes in and their record is sealed and maybe it's an oversimplification my part but i would think that would be the time to say okay the order is granted sealing your record and whatever notice we put in i would think it would be simple to include it in the sealing order so i don't see it as having a significant impact on the court because we would be would be issuing the order sealing and that's the would seem to me to be the appropriate time to give them notice that there is a possibility of expungement in the future but so would the uh would the sealing order go out by first class mail to the person's last general generally speaking that's the way they go okay because we've had contact through in other words if if the state's attorney or the attorney general's office was ever bringing this petition they've obviously had contact with an individual so presumably somewhere in that process they would provide us with it with a current address if they don't then we're going to be looking at an address that is probably anywhere from eight to ten years old so i'm thinking that if we if our files are updated at the time of sealing with an address we issue the order that would be the time to include in that order oh by the way you have the possibility of expungement but our notice would be pretty limited because you can see all the complications of someone being eligible for expungement it's not going to be anything other than saying there's a possibility of you having this record expunged in the future so i don't see it as having a significant impact if that was your question so it was thank you moving right along okay so i'm going to move to the last change which is the last section of the bill amending the directive to the sentencing commission so this we've just added some language here to require the sentencing commission to do two things to consider how to automate the process of sealing and expungement and also to develop a comprehensive policy that provides an avenue for expungement for all offenses except for big 12 offenses and it directs them to report back to the justice oversight committee by october 15th of this year on their recommendations for how to make all criminal offenses eligible for sealing or expungement except for big 12s and implementing a petitionless process to seal or expunge conviction records that both provides notice to the prosecuting attorney's office and also the opportunity for the prosecutor to oppose the sealing thank you does anybody got any problem with that part no but i would like to add my suggestion well i thought we were going to talk about your yeah i thought we were going to talk about that more on friday oh okay okay um i thought i thought people have had a chance to think about how do we um how do we i think the issue your rails re raised is we have some crimes that are sealed some crimes that are expunged some crimes that can get sealed and then later expunged it does create a confusion confusing track but i think more importantly who has access to those records um one was we did hear the senator benning noted from folks who may have had immigration issues that they needed that record to prove something um so that would be a person who would have access um with where there's a subsequent offense somebody may need access the ui for example that was sealed but i guess that could be part of the study that we asked the sentencing commission to look at it would be a huge change and then the other two issues are the um they have to do with section two number six the subsequent offense who can stipulate it um you know as a new incident we said we come back to that and then what we just talked about which is the page 17 lines one through seven i'm going to include lines one through seven even though not all of it is so i i realized that um making such a huge shift is a it's a major major step but it seems to me that every year we make the the current system more complicated and as you said we need a roadmap so we we keep trying to somehow get um sealing and expungement coordinated and and it seems to me that we are every year just making the whole system a little more complicated and that we might want to look at is this the system we really want to keep um and should we look at a different system pretty easy to put the two track question into this study committee i would hate to try to do it ourselves with the short time we have now and then all of a sudden find the house is rejecting the bill all together because it just can't grasp it yeah i think it's better to put those questions into the study i think so too but then back to yeah back to janette's earlier question i think which is should we if if we're if we're sort of acknowledging the logic behind examining the two track system and maybe getting off it should we this session pass a bill that adds more layers of complexity that will have to be erased um yes i mean no we should not i know that's a tough question because we've done a lot of work on this bill um but but you know at at some point we will have to bite the bullet if we're going to if we're going to reverse course and go to one track and so the the question would be do we do that now or do we hold that question till later and act now as though we're not considering since we substantially passed this bill last year i'm not of the mind to bag the bill until we get more information so i think that um this bill has some important provisions we heard you know for the pandemic before the governor's pandemic had already started i would say we before the governor's emergency order on march 13th that led to us going remotely we held the hearing in windowsky and i think this bill addresses a lot of those concerns from many members of the public and i need to lose the bill if anything um i think we've come a long way and so i would suggest we do the bill um but uh we take a hard look at the three issues i'm trying that we add the the question that senator white has asked the senator to look at the sealer's plunger and what and that we make decisions about the other two issues friday morning senator sears yes there may be some parts to this bill that i that i agree should be passed um now that don't add to the complexity of the two two part system but there are some that add more complexity to it and maybe we should look at those and see if if it's wise to pass those adding those complexities and just keeping in the ones that address some of the underlying issues whether it's sealing or expungement okay okay when when the committee's done if if i could comment um on the section on the section which on the section about the uh the work of the sentencing commissioner yes remind the committee of a couple of things last spring when the pandemic hit you'll recall i'm pretty sure it's act 95 uh actually suspends the whole process for uh processing expungement uh request now that's not to say they're still not being done to some extent i think sarah george had testified to that effect but there is a a provision that uh allows the court to suspend processing of those requests for 120 days after the a o 49 ends and as of right now of course a o 49 goes until the end of march whether or not it's extended i i don't know but so there is this lag time um that is possible where no matter if this bill passes in any form that there's still going to be a backlog of of these types of cases being processed it's number one um and i think the committee wants to be aware of that number two i noticed in the language talking about um and we've talked periodically in this committee as well as house judiciary about automatic expungement and in my view automatic literally means there's no discretion involved and you can see as you go along in this process that we've currently operating under there at any number of situations where some discretion has to be exercised and it should be exercised by law enforcement and the prosecutors and not the court so when the term automate is in there um if that's realistic it's got to we've got to devise a system where there isn't any discretion the timeline comes and the file is sealed and the only thing i would add to that is that you know now would seem to be a good time to look at this system because we are now on the verge of uh the court having one case management system vcic obviously has all of their records centralized we have an opportunity to remove this and and put it into an entity that their sole function is is to process requests and deal with these records as has one entity um and i just think it's a good opportunity to to um to look at the current system um and see if we can find a way of improving it for for everybody along the way whether it's state's attorneys vcic judiciary or and the litigants whose records are affected by this so i would hope we could um continue along those lines well we're gonna take a break and come back at 11 30 take up um global calls when well we were i mean while we were meeting um so peggy if we come back at 11 30 i don't exactly what right now 11 24 so five minute break okay okay so soon as david all's ready i'm ready ready sir right we we have a redraft of global calls or we just uh we have the amendments that we started working on last time uh didn't get all the way through i guess yep should i pull that up on the screen yes please do all right um here we go so hopefully you're seeing a strike all amendment s 11 uh this is david hall legislative council s 11 is a bill relating to prohibiting robo calls and um last time we i was taking you through this strike all which still adds this new section of law and title nine uh but now you know also includes this intent section which would be codified uh but the the real purpose of subsection a again is to try to basically say in plain english you know what it means to have a a law that's co-extended with federal law as i've tried to convey the the difficulty with actually importing the federal law itself into ours is that it's it it comprises two separate acts plus the regulations which the regulations themselves you know incorporate by reference other regulations including pieces from HIPAA concerning you know what it means to be a healthcare provider or a health message that is allowable for the purpose of robo call i mean the easy way to explain that is your prescription is ready right i mean that's an that's a robo call most people probably are not gonna object to but to get there there's no easy legal easy way to to do that without you know going d down the rabbit hole of uh you know 47 usc 227 47 cfr 64.1200 d so to try to avoid that morass which is changing constantly i don't think i mentioned last time some of the some of the provisions in the regulations at the federal level that govern this stuff actually just took effect on february 12th i mean it is it's a it's a it's a very because it's you know related to multiple agencies the ftc and the fcc that regulatory authority and then the technology obviously is constantly being updated and then lastly the most recent federal legislation the traced act um which we discussed last time around which requires the largest telecom providers to adopt this shaken stirred system where they're doing sort of a front in verification of who is making the call and that it's a it's a legal number um they're trying to weed out these calls before they even get to you but you know all of this stuff is happening at a rapid pace through orders and rulemaking and and new legislation as of uh you know the course of this past year so to try to capture all of that in words in the state statute would be very complicated and troublesome i think uh and therefore you know the approach that's easiest but also clearest i think was to try to say our federal our state law is co-extended with federal law and then we looked at that ftc web page together and said here's what it boils down to at a general level tons of nuance and you know frankly if you're in the business where you want to use robo calls for certain reasons like you've got a regulatory compliance burden no doubt about it and you need to know what the federal law is and what the regs are and it's hard there are law firms whose job it is to create matrices and guidance documents for businesses who who want to utilize this technology but in a simple nutshell kind of way here in our statute you there's a plain statement that your intent would be in a one to create a state law prohibition on the use of automatic telephone dialing systems and on the placement of robo calls to vermont consumers it's co-extensive with federal limitations created in the tcpa and the tcf apa i do say in a one i use the word robo call as a matter of statement of intent again as of a plain english kind of conveyance of what you're hoping to accomplish understand that in federal law there is no definition of robo call and we could try to make one up but if we do you know i might i don't want to come what we make up might be interpreted to be different than federal law which says artificial or pre-recorded voice that's how they sort of capture that component of it and then the automatic telephone dialing system is the other component in a two here you plain statement you want to continue to permit certain robo calls to the extent they are allowed under federal law including so these are the examples this doesn't change the substance of the state legislation which is if it's legal under the federal law it's legal in vermont if it's illegal under the federal law it's illegal in vermont and we can pursue state law causes of action but here you know we looked at these before calls made for an emergency purpose with prior express written consent of the called party david yes sir sorry to stop you there but does express written consent include clicking a box it could so we did this with automatic renewals you remember in economic development you know there are there are ways to strongly nudge or even force consumers into clicking a box in order to move forward and you can have language down deep that allows robo calls going forward or automatic renewals i'm not suggesting that we change it if this is the federal law i just wanted to be aware of whether that was allowed i assumed it was because with my pharmacist i get text and i signed up for it by clicking a box i get text when my prescription's ready yeah i i just pointing out it is a a potential loophole for people to yeah you know that is yeah okay go ahead david sure yeah that is so the the the federal standard and in most cases is prior express written consent not all and again it depends on you know what kind of line they're calling and whether it involves advertising or telemarketing there's lots of rabbit holes you can dive down but this would be something that's allowed if a consumer has given you prior express written consent there should be no reason you know to negate the consumer's preference i suppose under c calls conveying messages that are purely informational you know this is again this is one place where the the the nuance of federal law is difficult the the statute says you can't do this unless the agency by regulation allows you to do this in certain ways and then there's a regulation that comes after that and says would that include that might my warranty is expiring and this is my last chance i mean they could argue that's informational right um well the way that the federal regulation works it can either be a call it is not commercial or that is commercial but doesn't try to sell you anything so it depends on whether not the you know they're trying to sell you or advertise or telemarket to you or if it by contrast is just a legitimate you know conveyance of information if your warranty they're trying to sell me a warranty but but it's my last chance to do it right so they're informing me i mean i mean arguably but it's also uh it's illegal to try to deceive uh or commit fraud or abuse consumer and i i mean at least the warranty calls i get are for vehicles that i don't even own so yeah actually i'm getting mail on that too my 2012 fusions warranties run out i feel bad for whoever owns it now they're still trying to buy back my car that i sold in 2013 okay moving right along all right um call is concerning the collection of a debt but not including calls that attempt to sell consumer services to reduce debt this is not to be confused with uh the specific carve out for collection of debt owed to the federal government which i think i mentioned before the supreme court actually struck down that part of the law because uh they found it gave preference to that content based speech over others and so the federal government no longer gets its own carve out and priority um under the statue but uh a non-commercial collection call is allowed as long as they're not trying to tag on help us you know we we'll give you that we'll sell you the service to help you eliminate your debt in 90 days something like that that's illegal people can do political calls the calls from healthcare providers uh i mentioned um that's a very general statement again there's nuance there about if you're on the list of the kind of healthcare provider and the nature of the call and it's not selling you anything and it's high hip of compliance etc and then we talked about g the messages from charities either directly i want to clarify something i said the other day i did not mean necessarily um a huge percentage of charities are scams and i did not mean to robocalls from charities a huge percentage of scams i did not mean to imply that charitable organizations are necessarily scams there are a number of well-intentioned charities who do great work and don't have huge overhead they're either my experiences that those that use robocalls those charities that use robocalls are frequently either trying to uh to scam or secondly they may be having huge charges for the administration of the fundraising efforts so that rather than 10 or 15 percent of the cost of fundraising going to the fundraising 90 percent is going to the administration of the fundraising and only about 10 percent is going to the actual charities and i just want to clarify that when i said that last time i did not necessarily mean the charities so relative to the bill is introduced this does add the definition of automatic telephone dialing system and again this is from 47 usc 227 the the telephone consumer protection act and um it's a defined term there as i said they do not define the term robocall but they do define automatic telephone dialing system so you'll see in c line 14 the prohibition is to an on initiating a telephone call to a vermont consumer using an automatic telephone dialing system or an artificial pre-recorded voice so those are the two things that are verboten uh under the state law to the extent on uh you know prohibited under federal law and the rest you you have seen um civil violation is a violation of the consumer protection act um and there is enforcement capacity here uh in court civil action attorneys fees penalties of 500 for first thousand for subsequent uh criminal penalties of 90 days a thousand dollars are both and then each call is a separate violation under each of those provisions and lastly the ag's office should work together with others state and federal to uh try to identify these callers and enforce provisions to the extent it can do our bankers have any issues with any of this christelia uh thank you mr chairman for your record christelia president of the vermont bankers association i will be brief number one i i greatly appreciate you adding the intent section um and understanding completely the complexity of trying to capture all of the federal laws or regulations and not wanting to embed those in a bill here in vermont but at least the intent section gives people some understanding of what's allowable if you will so that's greatly appreciated again i understand why you don't include a definition of robocall so uh no issue there but i do want to flag something for you that came up uh that i learned this week and it's related to embedding the definition of auto dialer and i think this goes back to david's comments again of the moving landscape of what's happening at the federal level so it's my understanding that there were just recently arguments in a supreme court case regarding facebook and versus i think it's dughid d u g u i d and it's specifically dealing with the auto dialer definition and there are several appellate court cases that come up with two definitions so the supreme court case is trying to resolve that i flag it for you because not knowing what may happen with the supreme court case your embedded definition may change or may have to change depending on what they come up with so i just wanted to flag that for you again is something new that i learned since your last hearing and then the final thing is i i know david mentioned this in the previous hearing because we've had two of our institutions whose numbers have been spoofed they've still asked me just for a brief statutory reference to vermont statute that would prohibit spoofing if that would be acceptable to the committee otherwise we greatly appreciate it we understand what you're trying to accomplish and support that we just want to again as i stated in my first comments uh in the first hearing avoid any unintended consequences so thank you i'm good with spoofing being in the bill um david is that complex to add to the bill it's just put in no spoofing david um so um we have uh a requirement that it's deceptively not simple um i think emailed to the committee um last wednesday that um a few years ago you all adopted a law went through finance working with ag's office to require that a person who is placing a telephone solicitation must provide accurate caller id information so they have to give an accurate telephone number and to the extent the recipient of the call or the the the the the entity that is facilitating the call has the capability they also have to provide an accurate number excuse me an accurate name for the caller there was one caveat that um if you were making the call on somebody else's behalf you could supply the name and number of the person on whose behalf you were calling so for instance if vpr hired uh you know a fundraising campaign or to do a fundraising campaign they could supply the name and number for vpr rather than you know peggy's solicitation services um here's the problem first i there there's an issue about whether non-harmful spoofing is protected speech and at least one circuit court has found that it is and has shrugged down a ban on uh certain spoofing and so you can't really i'd be loathe i'd be loathe recommend to you to say just ban spoofing um because in some cases it's permissible um and under the federal law you can't spoof in order to deceive uh or you know commit fraud um and that's the federal prohibition and under the state law there is a mandate that you provide accurate caller id information so if you were to spoof you know that's technically uh right now a consumer protection violation all that is already it's already illegal it's already illegal at the federal and the state level and i i'm not sure how to thread it in here uh at all to be honest right it appears in you know this is adding 94 64 e i think um i think the prohibition is in 90 uh excuse me 24 64 c maybe um so i i can put some thought to try to how to reference it but i'm not sure how to do that to me okay well what i think we're better off we you know okay 2017 we amended 9 vsa 24 64 a to impose the affirmative requirement to provide accurate caller id information yeah we've had actually you know i've gotten robocalls from phone numbers like the one that the hospital uses so you answer it because you think it's hospital free registering somebody's goofing it i guess so it's already illegal christ any comment on that uh yes understanding that it's already a legal we were just again wanting to avoid the unintended consequences of somebody looking this particular section and because a bank's number was spoofed uh that it was a problem for them so that's why it's just if it's a reference to say that what you've got in 24 64 a uh that prohibition applies here but i understand if david can't thread it i just want to make sure those entities that have their number spoofed are protected under this particular section are there any other areas that people are uncomfortable with in this bill the amendment to david and again i would just raise the issue of not knowing what the supreme court might do with your definition of auto dialer where do we want to go i don't have strong feelings one way or the other myself i don't think it's a bad thing to mirror federal law so i'm i'm in support of the bill uh but at the committee's discretion whether it goes forward or in what form well i i think we should amend the bill as as seen in the draft that david just provided no i want to i realize that one could argue it's limited in scope and it won't have much effect but the attorney general did say it would be a good thing to have in a tool bag but i also think being that we live in a copycat world if Vermont passes such a bill other legislators around the country will begin to look at such a bill and the more states to do this the more um i think congress may listen and take some real action particularly those that are out of the country um where they can but at least in this country they can do that i i just think some you know it's i haven't met anyone who told me that they really enjoyed the real law calls so i'll move we usually i don't make a motion but i'll move that we that we amend s 11 with the draft that david just was there any further discussion senator bruce oh i was just second just second okay you ready for the discussion hearing none beggy could you call the roll senator benning yes senator nicker you're muted senator you're still muted there you go no now you're now you say yes or no senator yes oh thank you senator white yes senator baruth yes senator sears yes i'll now move that we report the bill favorably as amended further discussion second seconded by senator nicker beggy could you please call the roll senator benning yes senator nicker yes senator white yes senator baruth yes senator sears yes yes would like to report this bill i think it's your baby i'm i'm going to just call on senator rock my co-sponsor that's what i was going to say just ask him i'll i'll report it beggy david can you send me the clean version after it's gone through editing thank you and david would you send me a few comments about why what's here and what's not here that would be helpful yes or take a poll in the senate and see if anybody's in favor of robo calls likes them all right um beggy uh why don't we um let go of the adjourn to youtube and