 Ron, are you with us? Yes, we're now live. OK, thank you. Good morning. It is March 30th, 2022. And this is where at the General Housing and Military Affairs Committee this morning. And we are going to hear from our legislative counsel, Damian Leonard, who is sitting in his chair this morning. And he is going to share draft 4.2 of Bill H-329 with us this morning. Damian, the mic is yours. OK, thank you. Good morning, everyone, for the record. I'm Damian Leonard from the Office of Legislative Counsel. Now, let's hope that's my only slip up this morning. So most of you saw or would have received draft 4.1 last night. This morning, I'm talking with the chair based on some of the replies that came back. He asked me to make some revisions, so that is draft 4.2. And I will point to those as we go through and explain the reasoning behind the revisions. Representative Murphy. I just was going to ask, I'd like to print that out because I haven't even seen 4.2, and I appreciate the walkthrough. But I'd love to have it in hand. Is it on our website? It should be, yes. I just was working from what the chair sent out about this morning. Yeah, so that's my question. I prepared for 4.1. So now there's a 4.1 was not even on our web page. So now we have 4.2 is that on our web page? Yes, 4.1 and 4.2 are on the web page. And we'll have Demian review what the changes are. They're not substantial, but we will go through that. Yeah, so the difference, there's no difference in the wording until you get to the removal of a subdivision in there. So that's the difference between the two drafts. So if you've read 4.1, you're familiar with the language. And I'll point out where language was removed. Thank you. So OK, so the changes from this between this and the last draft we looked at are highlighted in yellow. So I'm just going to scroll down to where those start. And so in the last draft that we looked at, we were amending the definitions that apply to both public accommodations and fair housing. That has been struck out because of the concerns raised by the school boards and the other associations working with the school boards association about the potential impact on school harassment cases, which are prosecuted under the Public Accommodations Act. But was that a tango? Thank you. Just to be perfectly clear, Demian, so the removal of that language so we do not reference any of those statutes, means that whatever the schools are doing now, they will continue to follow the same statute. And this new law would not affect those statutes. Is that correct? At the same time, yes. 16, isn't that what we're from? So 16 BSA 570 F has those has those lawsuits brought under the Fair Housing and Public Accommodations Act. So the and those are brought as a cause of action under under this the broader chapter. And what we're focusing on here is to get away from that. We're amending just the unfair housing practices section. So it'll apply to that. So before prior versions, we've been looking at a definition of harass that applied to the entire chapter, which raised questions. If you have a harassment suit that's brought under a separate separate law, but the cause of action is under that chapter, there's ambiguity at now about what the definition of harassment is. And an argument could be made that the definition of harass that was in the prior version of the bill where the whole chapter could apply to that. So in this case, we've swapped that section out for just the unfair housing practices section. The first change here is on line 10 of page 6. We struck out the word therewith and replaced it with with a dwelling or other real estate. So now the sentence reads, or in the provision of services or facilities in connection with a dwelling or other real estate. And so this is. Can you just explain to the non-lawyer the difference between therewith? Representative Bowley. Oh, I'm sorry. OK. I'm very sorry, Mr. Chair. I don't know why I did that. So therewith is so the original sentence was to discriminate against or to harass any person in the terms, conditions, privileges, and protections of the sale or rental of a dwelling or other real estate or in the provision of services or facilities in connection therewith. So the therewith refers back to the subject of the first part of the sentence. And the reason why we're taking that out is part of our effort to eliminate legalese and add clarity for a non-lawyer reading the statute. So we're saying with a dwelling or other real estate here. And then this reflects the so what I did here is in looking at this, I looked at how this section has been interpreted and how the Federal Fair Housing Act, which has identical language, has been interpreted. And the services or facilities language is really it's not specifically related to the sale or rental of a dwelling or other real estate. It includes, for example, after you've rented to someone enforcing the policies differently so that they don't have equal access to the services or facilities at the apartment complex or the condominium that they live at. So that based on reviewing that case law and then with the intent of clarifying this and getting rid of legalese, we've struck there with and put in with a dwelling or other real estate. So that's the change there. The next change here is adding the definition of harass specifically applied to this section. So it says, as used in this section, harass means to engage in unwelcome conduct that detracts from undermines or interferes with the person's terms, conditions, privileges, or protections in the sale or rental of a dwelling or other real estate or in the provision of services or facilities in connection with a dwelling or other real estate because of. And then another change to note here is that previously I had in drafting this hastily copy of the definition of harass from the employment law to the Fair Housing and Public Accommodations Act. And the protected characteristics are actually slightly different in these. So I've corrected that so that this reads now with the protected characteristics in our fair housing law. So we're not creating a new set of protected characteristics, which could have potentially a broader impact with respect to the bill. So it's race, sex, sexual orientation, gender identity, age, marital status, religious creed, color, national origin, or disability, or because the person intends to occupy the dwelling with one or more minor children, or because the person is a recipient of public assistance, or because they are a victim of abuse, sexual assault or stalking. And that lines it up with the actual Fair Housing law in Vermont so that we aren't providing harassment protections for a different list of protected characteristics. And if you want me to compare and contrast them, I'm happy to do that. But the intent here is to make sure we're not changing the underlying law. So a couple of important things to note before I get to the rest of this is that this definition applies to this section by its terms on line 17. And then again, with its references to the sale or rental of a dwelling or other real estate or in the provision of services or facilities in connection with a dwelling or other real estate. So the intent here is to clearly separate it from public accommodations or any other suits that might be brought under this chapter, including under 16 BSA 570 F, which is the educational harassment. The on page 7 from line 6 to 9, this is the language regarding notwithstanding any judicial precedent, harassing conduct may not be severe or pervasive to be under unlawful pursuant to the provisions of this section. Again, we're clearly stating of this section not a reference to the chapter as a whole. And then in determining whether conduct constitutes unlawful harassment, the determination would be made on the basis of the record, according to the totality of the circumstances, and a single incident may constitute unlawful harassment considered in the aggregate and conduct based on multiple characteristics given the totality rather than an isolation conduct may constitute unlawful harassment regardless of whether the complaining person is a person being harassed or the complaining person acquiesced or otherwise submitted to or participated in the conduct, whether the conduct is also experienced by others outside the protected class, whether the complaining person was able to enjoy the benefit of applicable terms, conditions, privileges, or protections in the sale or rental of the dwelling or other real estate or to obtain services or facilities in connection with dwelling or other real estate despite the conduct, whether it resulted in physical or psychological injury or whether it occurred outside the dwelling or other real estate. So with all of those, we're taking the same language that we had in the employment law and applying it to fair housing. What has been removed here was the subdivision below this, which the chair asked me to remove it this morning. It essentially was a belt and suspenders section adding an additional statement saying this doesn't apply to anything under the Public Accommodations Act or 16 VSA 570F. Because this length, this subdivision already says as used in this section and then repeatedly says, with respect to a dwelling or other real estate, my interpretation is that it's not necessary, but I had in the first draft 4.1 added the other section as essentially an additional clarifying statement. And the chair asked me to remove that because we're already being clear that it applies to this section and that it applies only to dwellings and other real estate, so rental or sale or provision of services or facilities and connection with them. Representative Murphy. I just think it's important to share that I think that it's also due to the letter that's on our website that one of our witnesses requested this change before the committee even saw what was drafted. I just need to get out of the record. And that's fine. So the chair asked me to make the change, but my understanding is yes, he had to do the letters that had been submitted and I was going to bring that out. Well, what I would like also to say is in defense of that being removed because it was just built in suspenders. We're getting near the end of the changes here, so I think it's not inappropriate to say that I am very concerned that pieces I have put on the table OK, OK, OK, stop right there. When we finish this walkthrough, we are going to give the mic to you, express all your concerns. OK, are we going to address them? Are we just going to let me say them again? Well, we're going to hear what you have to say. OK, I think it's interesting. Interesting way to deal with it. Thank you. OK. Yes, Representative Hango. I think I'll defer till the end because I feel like I might have the same. OK, some similar things to say. All right, there enough. So Damian, if you would continue, please. That's actually it for the walkthrough, OK? So the struck language is available on draft 4.1. Same page, lines 9 to 11. So those are the two options there. I can take questions on this. These were the changes I was asked to make. My understanding, though, is that there are other sections now for the committee to discuss and that the committee may have questions on this. So I'm happy to take questions or give way to committee discussion of the bill as a whole. OK, so that would be good. We're going to turn this over to Representative Murphy to express some of the concerns that she has expressed to the committee in the past. And I think it would be good to have you here to hear them again. OK, Damian? OK, I'll be staying with you. Yeah, great. Representative Murphy. Well, I appreciate that we do often put in belts and suspenders pieces. I think there's intention in doing that. It clarifies things. But I've had a concern with pieces along the way. And I will take you right to them so we can follow them and not make it difficult for people to just be looking at it in abstract on page two. And we're working with draft 4.2 because that's what the chair is deemed today. We didn't even get a chance to look at 4.1. 4.2. And on page two, lines 18 through 21, I have asked to be removed several times. I have been told by Ledge Council that it is not common in any way, shape or form, for the notwithstanding statement to be connected to the provisions liberally, narrowly, in any of our statute. That paragraph, the provisions being construed liberally, construed narrowly, is used sometimes, but that it was unique or very near unique, that it was tied to a notwithstanding. I think with the expansion of what we're doing on the statement and definition of harassment, it is more than what we should be taking a stand on. I think that on this circumstance, leaving the notwithstanding language so that it prefaces where we are saying and where our statement began many months ago, weeks ago, with harassment and discrimination need not be severe or pervasive, that's the one we want to say has been precedent. And we're saying it should not be considered precedent. I think it's very important to keep those pieces connected. And my understanding as it's laid out here is that you would just then remember on page three, the two to be a one and the three to be a two, and strike the paragraph one. So that is what I've been asking for. And I'm concerned none of these drafts have ever even highlighted my concern. Let alone remove it before the committee even saw it. And the other would be a repeat of that on page five. Could I check? Did I finish my thought? Yeah, I want to talk more about that one. This is the same. It's the same language. It's all one piece. So it's on page five. We repeat the exact same under small C, lines 18 through 20, and then one through two on the following page, that it's the exact same notwithstanding that things be construed liberally and narrowly. And again, when I raised my concern, I was told that it's done anyway. It's common practice. So it's just belts and suspenders or however you want to look at it unnecessary to have it in our statute. And so I'm not quite sure why it isn't able to be at least highlighted for discussion. Well, it is being discussed right now. And although it hasn't been highlighted, it hasn't been discussed at any length with the committee. So that's why it remains in the bill until we can have a committee discussion surrounding the removals that you suggest. Thank you very much. Then I guess I would be concerned with my language was removed from 4.1 before the committee had a chance to discuss it. 4.1, we already, ledge council has already reviewed that for the only language changes in 4.1 to 4.2, he has reviewed those and that the language you suggest to be removed was not removed from 4.1. Right, but you just said that because we aren't removed is because the committee hasn't discussed it. Correct. We didn't discuss what was just removed from 4.1 either. Well, again, this is open for discussion right now. Thank you. Okay, Representative Kalaki. Barbara, I just wanted to make sure I understand that you're feeling that this section, these two sections, there's no need to, because we've defined this, there's no need to tell the court they should look at it liberally. Is that? My concern is that when we ask them to look at it liberally in being open to what could be considered, but look at it narrowly and what we're looking at is exemptions. And we put the emphasis on it by putting it in statute, which is what we've been told by our ledge council is what this does, that it is court practice to do it, often, but if we put it in our statute, they must and we are saying you shall. So my concern is we're already saying a very liberal translation and definition of what harasses, very liberal, which I think is great. I want people to have success in bringing things forward, but I think this is beyond. And I would use this defense that every time I've pointed out examples of harassment in this committee, it's been seen as a joke. And they have been examples that could have been taken to our court of ethics that I as a third party witness was seeing something I thought was harassment. So I just lay it out, we're writing state statute, we're not making intent, we're not giving guidance, we're writing law. And I just feel that that is a step beyond what this bill should be doing. And I think if we take it, this bill needs to go to judiciary. And I also feel that we don't even know where this bill is going because it didn't make crossover. So there's a lot of unknowns, but I'm not willing to let this one go out of the room without really saying we didn't finish our work on this. And as a representative and a member of this committee to be feeling like I'm second rate to information that witnesses are bringing to us and voices they have, does not leave me feeling very well for the voice I have here for my constituents. Second. Yes, Representative Hango. So I had my hand up earlier and I was gonna wait. So my objection to the underlying premise of the bill has already been discussed many, many weeks ago back in January. So my objection now is to the process and Representative Murphy brought it up. The very last night we got an email saying that version 4.1 was available. So late last night I read through it. And then I walked in here this morning and 4.2 is now available. And 4.1 was not even on our webpage last night. So the process of this, that nobody had a chance outside of us and whoever wrote 4.2 knew that 4.1 was even in existence. And now 4.2 is here, which I did not have time to digest. And apparently the changes were at the request of a witness, which really disturbs me about the process because this committee has not discussed this bill in many weeks, several weeks. And I have objected to this past years and I'm gonna continue to object to this type of process. And then beyond that, I totally agree that this bill needs to be seen by judiciary because this is out of my comfort level of understanding these types of statutes and how they're going to affect people in the workplace and in the housing market. Although I know we are the housing committee, but this is very much out of my realm when we come to talking about the judicial branch. So that is what I have to say today. Thank you for listening. Thank you. Thank you very much. Thank you. Josef Walsh. Yeah, a couple of things. Yeah, I think it probably is a good idea for this to go to judiciary after it leaves us for some of the same reason I've already been expressed. And part of the reason for that is I would support leaving in paragraph one in both of those places cited by Representative Murphy because they do express legislative intent and that is something we definitely have done and other bills to try to make it clear to whoever's trying to interpret this statute, whether it be laypeople or a court, this is what the legislature intends to build to be doing and how we intend it to be interpreted. But then again, that could be something for judiciary to take a closer look at if there are more youths to deal with that sort of issues. So I guess I would argue for, yeah, let's do our work to send it to judiciary, but also I would leave in the first paragraph on whether or not we're standing just to make sure our position is clear. Thank you. So there you have the reason that that language remains in the bill and it has nothing to do with any type of harassment or anything. There has been no agreement in this committee as to whether or not that language should be removed. And so it stays until the committee agrees by a majority of a vote or a strong vote poll that that language should be removed. So that is the reason that the language has remained in the bill. Senator, yeah, Representative Murphy. I just want to share that I do argue with Representative Walts that it can be our intent, it's not in an intent block. It's in 21 BSA and 21 nine BSA nine and 21, 21 BSA and nine BSA. We're putting it in statute. We're not putting it in an intent block of this bill. And so that's very different. And it's not something that has not been done. As I said, we have testimony from our Ledge Council that the pairing of that paragraph of liberal and narrow with the notwithstanding is not common. It's very rare if it exists at all. It's a really big statement to be making. So I argue that. And I would also say that we haven't discussed it because every time I brought it forward, I was told discussion would come. So they keep saying that the committee hasn't had this discussion and now we have. No, I didn't say it didn't. We didn't have a discussion, Representative Murphy. I said we have not reached the consensus as to the removal of the language in this committee. That is what I said. Right. And I would argue that because we haven't discussed it because every time I brought it forward, it was not permitted to be discussed at the time. We have heard you and we understand what your position is very well. What I am saying is that we have not reached the consensus in this committee as to whether or not that language should be removed. That's what we need to do. I agree. And I would once more state that we did not come to agreement on removing the language from 4.1 either. And it was removed. From where? From 4.1. From 4.1. Language that was removed was not agreed on by this committee to be removed. Well, again, that was, we just had a walkthrough and to promote discussion as to whether or not that amendment should have taken place. But the language was removed. We're at it right now. We're hearing that right now. Representative Kalaki. Thank you. Damien, I think Representative makes a really good point. I wonder if we remove that section in your opinion of this draft, would it change anything in the interpretation in the courts of this law if it's enacted? It was removed. So if you separated the notwithstanding judicial precedent to the contrary from the broad construction language, I think that would potentially have an impact is what you're saying is when you put in notwithstanding judicial precedent to the contrary, you're saying notwithstanding anything that you the court deemed was not a broad and liberal construction of this, construed this broadly. So you're saying you can ignore judicial precedent that you think was not construing this as broadly as it's supposed to be. The judicial precedent is that remedial laws like fair housing and public accommodations and the employment discrimination law should be construed broadly. In reviewing case law in these, I came across that phrase multiple times about the federal and state level. So that is existing case law, but when you put in the notwithstanding judicial precedent to the contrary, you're saying you can ignore judicial precedent that didn't construed this broadly in favor of the plaintiff. So there is a difference in the words there and the courts read statutes to give the words meaning. So when you add something in or you take something away, they interpret it to have meaning. And so with respect to that, that is potentially a substantive change. It's hard for me to speculate about where that would happen. And I'm sure the advocates can provide more context to that, but that is potentially a substantive change in the bills there, more so than just adding in the construed this broadly. So the, I think that answers your question, does it? Yes. Okay. Thank you. I think that you were gonna finish a thought on that. I actually just wanted to clarify my testimony from earlier because you had asked about, asked me to confirm whether there was a letter in support of the change that chair asked me to make. And there was, I should also say that the VSBA and the other groups sent in a letter asking for a larger carve-out. And those are both on the committee webpage, but I just wanted to get clear that there were two letters. And I have to be clear about the two opinions that are there. So that's all I wanted to do. Yeah, so no, I don't appreciate that. And I just wanted to be clear for the committee that the request was on. And I do know that we had asked people to work on the whole question of when we saw the conflict with the ed statute, that because of the way things are drafted, that it just did go into, it's spidered out into things we hadn't anticipated. So I think we had those discussions. I think those were things we talked about. But I would ask you, just am I correct in remembering that the pointing together of the notwithstanding with that broad construction language is an anomaly in our statute? Yes, I believe that was my testimony. And I'm looking back here to see if I can find my search of the statutes on that. But yeah, the broad construction, language by itself is fairly common. Dozens of instances, maybe a little bit over 100 within the BSA. But I'm not familiar with the notwithstanding judicial precedent language appearing together with that. And I'm just pulling back up my search on that. My search on that, and it's actually the, there is no instance that I can find of notwithstanding judicial precedent, the contrary appearing in the actual statutes. I can't speak to intent language or construction language that might appear in session law. That's harder to search. Sure. The three instances I can find in the statute, well, those actually look like they're from session law. If I'm looking at it right now, but the way they read was nothing, notwithstanding sections blank blank and blank of this act, nothing in this act shall be construed to alter the substance or effect of existing law or judicial precedent. So saying we're not, we've written this here, but we're not trying to alter the precedent. So this language is new for Vermont. So, but with the severe pervasive, clearly because that is the judicial precedent, you're saying we're overriding that precedent contrary with the construing it broadly. I've already sort of testified to the difference between saying that as the lead-in versus just saying this, it's the intent of the general assembly that this should be construed liberally. Thank you. Representative Hango, did you have your? I did. And I'm still trying to follow the paper trail. So forgive me if this makes absolutely no sense at all, but I'm back onto the process of this. So last night when we received 4.1 and I looked at it, there was nothing else under the date of yesterday, March 29th on our website page. And this morning now we have 4.2 and I was alerted to the fact as we sat down here that there had been a letter from one of the witnesses that was on our webpage. Again, it was not posted on yesterday's date. So I would have had no knowledge of it. It's now posted on today's date along with the new version 4.2. Again, we had not discussed 4.1. And now as I'm digging into the various layers of our website, I'm seeing that there's also testimony, written testimony from the school boards and the principals association, et cetera. I would never have known to look for that nor would I have known to look for Boyan's testimony because I was still on 4.1 until we sat down here this morning. So I find this all moving too fast for me to read the testimony and understand what it's saying and comment intelligently on it. So I do wanna bring the rest of the committee's attention to today, March 30th, if you look under that you've gotta click on the bill number and then click on the witness testimony and you will see new testimony for today. But if you click on the date you will not be, I don't think, you will be seeing the additional testimony that has been submitted to us in writing. It's all on, I'm sorry, it's all on the documents for today on our committee website. And I read them all this morning. Okay. I may just be a refreshing. Yeah. Well, that could have clicked very well. They will be my mistake but I will go back again and see where I typically look, which is our documents page, which comes up immediately. And then I look on today's date. And as it loads, okay. It is now on there. So I did not have a refreshed copy. So forgive me for that. Representative, oh yeah. One final thing when we receive an email that there's a new version, it would be good to know that they're, because last night it was not on our webpage that I could, that I saw, it would be good to know that there was testimony backing up that new version. I think that would have been helpful. Thank you. Yes, thank you. Chair, students. The material was posted as soon as it was received. That made a decision about changing 4.1 to 4.2 based on the letter that I received. So that's on me for not doing it differently but the material is posted as soon as we get it. I will always be open about putting it forward. I know it's not a question of one person's sensitivity towards it. It's about doing it the right way. So that material was posted as soon as we received it this morning. And as to, as to represent Murphy's points when I walked in, the decision to have a conversation about any particular material was never finished. It was never a hard stop or a hard no. We haven't finished work on this bill. And I think I've mentioned it before that we would yes, get to it. If it was interpreted as being ignored, I apologize or put aside or not treated with the respect that it seems to have done. That's on me, you know, but this bill isn't going to be buttoned up or finished or anything until there is some form of consensus regardless of what that consensus is. And until that happened, as we will continue to hear your concerns and the concerns of others on it as we move forward. It's as simple as that. And if I gave the impression that I was stonewalling or that I was being underhanded, which is what I just don't really feel is what the case was. And if the process wasn't held up to people's standards, then I apologize for that. That's on me, I'll just leave it there. Mr. Chair. Yes, Representative Pango. Thank you. I appreciate that and in no way shape or form am I trying to say anything was underhanded. I'm just trying to figure out where I missed and the this bit, VSBA, et cetera, the these testimony says that they were addressing changes in draft 4.1, which when I got the email last night, I couldn't find on our website version 4.1. So I don't know if I was just not finding it or if it was not posted last night because clearly they looked at it and had time to write testimonies for today. So I'm not sure where 4.1 was other than in my email box, inbox. So, Blomley. Yes, well, I am wondering kind of where we go from here. Does it make sense to take up 4.1, which had the other, you know, the provision that was does not appear in 4.2 and talk through Representative Murphy's concerns and any other concerns that folks have with, you know, with the bill in that iteration so that diligence to the feedback that we've gotten from the school boards and, et cetera. I'm just trying to figure out, hey, so where do we go from here? Okay, well, right now we're in the process of discussing these concerns. So I would like to address the nonwithstanding language because having spent thousands of hours in courtrooms in Vermont and having actually read probably thousands of opinions on various motions and such, I think that the notion that more guidance to our judiciary is appropriate has value. When you're saying notwithstanding other decisions, it starts at a clean slate so that a judge can look at the evidence in this case and make determinations based on this evidence and not solely or even at this point remotely on precedence. So the way that evidence is very, very important in determining the case for a judge. And I would stand by the nonwithstanding language because I do believe that our judiciary deserves all the guidance they can have from the legislature concerning laws that we pass. And I think that this language does do that. So, Representative Crocky. I'd like to kind of chew on this a little bit. And for me, I want to make sure I understand if we just took out line 17 on page three. Are we 4.2 or 4.1? 4.2, page two, line 17. Well, I just, I think he's asking for... So if we just took out line 17, the nonwithstanding, would it make any sense to keep that next section, the number one in there? Or does it need a header? So we're still saying it should be constructed liberally. No, you have it backwards. On that page, the nonwithstanding stays because it translates over to the next page of two and three where we're emphasizing the harassment and discrimination need not be severe pervasive. Okay. So we want to not withstand it in the past. Okay. So it's the... I want to chew on this by understanding. So line 17 needs to be there. Number one is the thing you're questioning. And then later in the bill... On page five. On page five. You're saying... On page five where... What line on page... I'm sorry, 18 through 20. You're... Tell me what you're... It's the exact same nonwithstanding language. To take that out? Yeah. That holds... Correct. Yeah. And I understood the first one, the reversal. Tell me why this one... What's the first two for you? Why are you suggesting taking this out? Because when I was... A few weeks ago discussing my concern, I had a concern with all of it. And I still do. And the nonwithstanding language was explained to me as being something that is common practice. So that it's not necessary to be in it. I think it puts an emphasis on a change of the harass that isn't needed. I think that it's already been done by the severe or pervasive. And making that be a nonwithstanding. I think that's the statement we were working on and has been the continuity of this bill. And I felt comfortable that Ledge Council was making it very clear, as did witnesses, that it is court practice to use this broad construction language in their actions. So I don't feel it causes harm to remove it. I think it adds emphasis to have it in, that I'm not comfortable with. I think it's beyond what is necessary. Yep, yep. As of more so, I'm hearing. Yep, thank you. Christina. And I can ask just... What I'm hearing you saying, please correct me if I'm wrong, is that you feel like emphasizing something does what to the notion of what it's emphasizing. That's what I'm unclear on, on your objection to it. I'm not sure. I'm honestly not connecting the dots between, between what's there and what your concern is. And I just want to, I just really want to try to understand that. So just, does that make sense? Well, I, I, there's two different areas. So I, I think that to carry the conversation to that level, I, we really need to talk about the notwithstanding connection to the, the broad construction language. That's the first piece on page two. That's very different from on page five, where it's just in general to legislative intent that we not withstand. So that is a follow-up of the fact that it is the exact same language. And if I'm asking for its removal in one section to be consistent, I felt I should show both. The one that really causes me great concern is where we are setting precedent, doing something that's a complete anomaly in our state statute and tying notwithstanding to that broad construction language. So the one on page two is the one that truly concerns me. The one on page five is for consistency that it is the exact same language, except that it is not prefaced by the notwithstanding statement. Page five is also prefaced by notwithstanding. They both have that lead on. So it would be removing that first line of that. And maybe that's unconsciously why I was triggering to it. So I guess in that one, at least removing the notwithstanding from that section where it's legislative intent. So where are we now? You're on the page five because I had the two different. I know. So, well, Let me get this clear. You're suggesting we move notwithstanding language from both sections on page two and page five. No, because that's, that's the confusion. Yeah, exactly. That's why I think I was going with remove the notwithstanding link or the broad construction language on both. And I hadn't triggered on it being not. Five is an intersection C. Is that what you're suggesting to remove the entire section? Yeah. Or at minimum removing line 18. On page five, at minimum removing line 18. Okay. Yeah. So about. Oh, go ahead. Do you want to finish your thought? What about page two? On page two, removing lines 18 to 21. Again, the entire section. Well, but leaving the notwithstanding because we tie it to. Okay. The severe pervasive, which is what we do. We've been trying to do from the very beginning. That was the goal of this bill. And so if I may, let me, so. The issue is with the first page to material. Is that you're uncomfortable with the precedent that it might set or that it is setting. If it's not setting, it might be set for the first page. And that's the most important testimony. But in. But without the notwithstanding language in page five. It's okay to say this is what our intent is to give a direction to the courts or to have a reason that this is what our intent is. And that. And that you may feel that that's sufficient to cover. But it's not. It's not. It's it's in a chapter that is titled legislative intent. Rather than in a chapter that's titled unlawful employment practice. Right. It's very. Yeah. All this time. One of the reasons I wanted to like stop and have this conversation. This group with this kind of bumpers is because. I'm not. I'm not seeing the same linear. Right. I just wanted to add a little bit closer on. On the up. I need to. Thank you. At least. Yes. I like to believe that I'd see things in the linear fashion. Sometimes. Yeah. This is a question for being in Damien. So if it. It seems to this layperson that not withstanding any state or federal judicial precedent, but contrary, is a statement in and of itself that signals to a court that the court has the freedom to break with precedent in making a decision about whether something is harassment or not. It's not just the freedom to break with precedent. It is a direction that says your precedents that are to the contrary of this do not apply. Uh-huh, okay, thank you. It's not just saying you may. Right. It's saying any precedent to the contrary is now out of the picture. You have to apply this. Right. So that being said, anytime you change the statutory law, the court looks at that as an intent to change the meaning of the law. The, I forget the exact wording of the canon of construction, but it's, you know, we interpret the words of the legislature to have meanings that they all have meaning. So if you were to even just say harassment and discrimination need not be severe or pervasive to constitute a violation of this section, that by itself would signal to the court, you know, hey, we've gotta look at this by saying notwithstanding any precedent to the contrary, we're saying ignore all that prior precedent when you're construing this. And so it's a stronger statement, but it's basically saying the same thing as adding in this language that says it need not be severe or pervasive to constitute a violation. With the broad liberal construction, we've typically just said, you know, that's sort of construction language. When you're looking at this court, instru it liberally as a remedial statute and construe any exceptions narrowly in order to maximize deterrence of the behavior we're trying to protect against. So, and sometimes we say the opposite. We say, you know, this shall be construed narrowly to these things we've specifically outlined because we don't want it to go beyond that. But here we're saying, construe it liberally to accomplish these remedial purposes. So when you're looking at these words, give a broad construction to our intent here because our goal was to remedy discrimination. If you say notwithstanding there, that by itself, that statement has power to say, there's now room to argue that in the past that precedent wasn't a liberal construction. And so that becomes basically that clause in and of itself has independent power where you're basically saying ignore any prior precedent that's contrary to this. So by itself, the language, this section shall be construed liberally. It's sort of a restatement of our intent that this is a remedial statute which reflects court constructions. There are, there is an argument potentially. And again, I'm trying to walk a fine line here if not speaking on either side of this, but there is a potential argument that especially decisions from decades ago may not have been as liberal as a court making strudum now in terms of remedying discrimination because of changing views on the issue of discrimination and harassment within the workplace or in public accommodations. So you could say notwithstanding any judicial precedent contrary and basically saying you can over, we would like you to overrule anything that you don't think construed this liberally without saying that you're basically saying this shall be construed liberally. And the courts still have the power to overrule their prior decisions, but it's a really high standard and it happens very rarely. Those are, we hear about those cases a lot, press at the Supreme Court overrules the precedent but those are very few cases out of many, many cases that are out there. They're just the ones where it's, this is a sea change in the law. So it's significant, but the courts, when the courts are looking at this, they don't overrule precedent lightly. That is a really big step for them to take. When you change the law on the page though, they have to look at it as a new law and give meaning to the words on the page. So to the extent those change the law such as getting rid of the severe or pervasive standard, that's a sea change and the precedent is going to have to be removed. Saying notwithstanding any precedent to the contrary, reiterates our intent to overrule that precedent. I am familiar with other state legislatures saying explicitly to the extent that this complex with the holding in X case, it is the intent of this particular legislature to overrule that holding. And I've seen that in intense statements in other state's laws where they disagree with the holding or they believe the holding is not consistent with their intent. But so that it's not absolutely unusual, but it typically is reserved for when you're clearly trying to change the law like you are with the severe or pervasive standard here. If that's the change that the committee intends to make, saying the notwithstanding that it may not be 100% necessary, but it makes sense and it provides sort of a reiteration of the intent to the court. With the provisions being construed liberally, I think the question is whether you think there is precedent out there that may not have been construed liberally and you're asking the court to revisit that because that's what that notwithstanding at that point, to at least in my interpretation, that's what it's saying and you have a couple other attorneys on the call today who may have different thoughts about that. But that's potentially because you're going beyond just the normal, this is our rule of construction here, which is what they've applied in remedial statutes anyway, or at least that's what the court states that it's applying. So there's room for disagreement whether decisions are actually doing that or not, but that's not for me to say. So yeah, so just to clarify the conversation, Representative Murphy, I think there are two potential options on the table. One is to just strike the notwithstanding clause with respect to that liberal construction language in the two places. And the other is to remove the liberal construction language entirely and then leave the notwithstanding language with respect to the severe pervasive standard in both cases. So, and it's worth noting in the fair housing and public accommodations, we've added the liberal construction in the intent section because there isn't a section like that for complaint law, although we could add one. That's another option, not to confuse things, but the actual severe pervasive is in the definition of harass in the fair housing language, which is the source of the concerns from the school board because they have a different definition of harass that they have to apply. Representative Murphy. That's not a same extent. I just was- Yeah, yeah. Oh, yeah, you were gonna end up? Okay. I don't have enough time, so please. Okay, I just wanted to put, I don't know how we're gonna do this, but I think it's, I think everyone's clear what I'm asking and so I'm just gonna make as a motion what I'm asking. And then we can get a straw poll on it and it can be done because I- Well, my question is, would you, Damien is proposing alternatives? I'm gonna clarify what Damien's, what I'm asking for and I think it's within what he was presenting, but it's what I'm offering. Okay, and you would like a straw poll on that? I think so. I think that's the- Right now. And then people can offer alternatives, but this is what I'm looking for. Let me ask one question now. Representative Hango, would you like, we're about time for a break here. Would you like time to make some comparisons between 4.1 and 4.2 on the break and we can make it a little longer? Is that, does that make you more comfortable? I appreciate that. However, I, the questions I have between the two, I don't think could be answered in that short of a time. So anyway, I- So I- Yeah, so I would like to make a motion. Okay. That what I'm asking is that on page two of draft 4.2, we remove the language on lines 18 through 21 and read number two and three to be one and two on page three. Slide on for us. It was removing- 18 through 21. 21. H2. And then on page three, numbers two and three become one and two. Yeah. And on page five of the same draft number 4.2, we remove line 18 and bring the small C and capitalize the T of line 19 to leave the construed liberally broad construction language in that section where it's the legislative intent but remove that total line 18 which has the notwithstanding. Not the entire section C. No, just line 18 and move the small C down to line 19 and capitalize the T. Well, that's just a progression as to- Correct. Second, yes. Okay, great. Representative, well, okay. So you're forming, you're making an informal motion. Yes. Is there a second to that motion? Second. To have a straw poll on the language chain proposed by Representative Murphy. Yes. Representative Byron. Thank you. Representative Hango. Yes, discussion on that I would like to know because I'm still struggling with the judicial terms, terminology, if that's what Damian just told us or not. Yeah, so that would remove the notwithstanding judicial precedent to the contrary from those sections. It also gets rid of the, so it gets rid of that the piece there where it says we're not just reaffirming this sort of liberal construction that you already applied over medial statutes. We're saying notwithstanding anything to the contrary. So it gets rid of that with respect and then it gets rid of the liberal construction language altogether with respect to the employment discrimination section. So you're just left with notwithstanding precedent to the contrary, need not be severe pervasive and behavior that or conduct that a reasonable employee would consider a petty, slight or trivial inconvenience shall not constitute unlawful harassment or discrimination. So setting the floor. The, so I can show you all what this would look like. Let's take a look, can we take a look? Yeah, yeah. It'll take me two minutes to make the changes. Can I break? Yeah, okay, very good. And the motion is on the floor. Yes. Okay. I don't actually know what we're doing right now. That's why we're taking a time break.