 Good morning, we're now on the record. Welcome to Vermont House Judiciary Committee. And we are continuing our consideration of H818 regarding sexual exploitation of children. And yesterday when we adjourned, we were still speaking with one of our witnesses, Marshall Pauls from the Attorney, I'm sorry, from the Defender General's office. And I had to unfortunately cut Marshall off. So why don't we, why don't we start with you, Marshall? You're available. Or so I actually, I had a handout which I had sent to Mike Bailey, not realizing. So I just sent it to Mike F. And maybe that will get up on the website soon. But I don't really have much more to add to my testimony tomorrow, or yesterday, besides that, like I said, I would do, I put together just a really quick, it was meant to be a two-page, but it ended up being a three-page section of some case law. What I ended up doing is taking case law from one case out of Texas, a case called ex parte lo, just because I think it's a good case because it walks, a lot of these First Amendment cases when appellate courts look at a First Amendment statute, they sort of, they skip through a lot of steps of the analysis. And the reason why I chose to use this case, ex parte lo, isn't because it says anything exceptional or interesting, but just because it walks through every single step of the analysis and explains why they're doing what they're doing and how it is different from reviewing other types of statutes. And I just see a chat from Mike saying that he did not receive it. So let me just pop onto my email, see why that happened. I have it as said to the right address, Mike, I will check it again as soon as I'm done talking and maybe just resend it. Marshall, you could also send it to House Judiciary. I don't know if that comes, it should be in your directory or if not, if that doesn't pop up for you, you can send it to me and then I could send it to the committee in the interim. It's right in my email box. There you go, I just sent it. Okay, Martin, you had your hand up, were you gonna, okay, you're all good. Yeah, I was gonna say the same thing. So I just sent it. So if people want to take a look at it, I don't necessarily wanna put it up on the screen and sort of walk through it because it's pretty lengthy and it really is pretty self-explanatory. But it really just explains what I was talking about yesterday in terms of the presumptions in the First Amendment cases being the opposite of the presumptions in all other cases and that facial overbreath really does result in the invalidation of entire statutes if they cover too much territory that is protected speech. And the other thing I would mention is just that in terms of, no, the other thing I was gonna do today was put together some suggested language. David Scher reached out to me and suggested that he and I should talk and try to come up with language together, possibly working with Michelle. And I think we are planning on doing that and talking about a time next week to meet. And so that's why I'm gonna hold off on any suggested language because I think that probably between me and David and Michelle will be able to come up with something. Well, thank you. I certainly appreciate that. Any questions? Oh, I'm sorry, Barbara and Tom. Thank you. So Marshall, I was at like my lowest energy yesterday when you were passionately presenting. And so I wanna make sure I fully understood what I took away was your worry about the constitutionality of this law pretty much. But if I missed like another big theme that you had and are concerned about, I'd love to hear that. So really, it boils down to the constitutionality of it. I mean, I don't think that from a policy perspective, there's anything, it certainly makes sense that this would be conduct that would be treated with a criminal sanction of some kind. It fits right in with the rest of the statute. I think my point to it is, it's really twofold. One is that, I have constitutional concerns about the language that we're using. And my particular concerns are that that could jeopardize not just this portion of the statute, but other portions of the statute as well. And that even outside of that sort of practical concern, just as a matter of principle, this is a very serious felony with lifetime consequences. And to my mind, when we are in the business of putting people behind bars for many, many years, talking decades, we have a duty to do it right and to get it precise and to make sure that what we're doing is constitutional in every way we can. And honestly, to be pretty conservative about that, because it's, we're talking about some of the most serious offenses you can be charged with. And so that's my only, apart from just the practical aspects of it, that's my only sort of principle point to it. And you weren't worried that we were gonna sweep more people in than should have been swept in? Well, I certainly worried about that at the beginning. I mean, if you look back to the original version of this bill from last year, it would have criminalized owning the Sears catalog with lewd intent. It was so blatantly unconstitutional and went so far beyond the actual interests that we have in prosecuting this type of conduct in protecting the population that we're trying to protect here, that I had a lot of concern about that. And as this bill has worked its way, both through that first year and then through this second sort of phase of revisions, I think we're to the point where it's now targeting exactly what it's meant to target and it's just about making sure that the language we use to do that is sort of in keeping with what has been approved by federal courts, by the US Supreme Court in particular. Thank you. Tom. Thank you. Marshall, thank you for your work. I think especially with sex crimes that we need to be 110% sure when we're gonna start pointing fingers at people because if it happened to, the way I guess this has written there and especially the way it was written last year like you were talking about, there was that potential to point the fingers at people that may not have broke the law. And if they didn't, I mean, as everybody knows, if somebody is accused of a sex crime and the public they're guilty and we certainly don't need to go down that road. And I mean, this lie, not only protects the victim in the way that we're discussing to change it, it's also gonna protect the potential criminal, I guess you could say. But I just wanna commend you and David for getting together and working on it and hammering out some language through the years I found out that some of our best legislation comes when the concerned parties get together and work out the issues that we have. So thank you to both of you. Thank you. Martin. So Marshall, thank you very much. Nice to see you again. I'm a little disappointed that you're gonna be working with David because I really wanted to get deeply into constitutional issues with you this morning. And now I'm not really going to get to do that. I could, but it would be, no reason to do that. But I... It could be premature. Let's wait and see if me and David actually... Yeah, that's what I mean. But I did wanna throw a couple thoughts out there to make sure I understood where you were coming from. And I won't get too deep into this, but as far as the overbreath issue, I was wondering, and maybe this is gonna be fixed by making it very clear that we're talking about an actual child when we are talking about simulation. And I understand where you were coming from with that. But it does connect up to the fact that the definition, the whole chapter really deals with children and you would think it would be actual child. But I think once you say simulation, you kinda need to have that. So I agree with that. But with that, does that take care of your concern about the statutes overbreath being substantial? Can I reserve comment on that until I get a bad time to talk? All right, so that flag is an issue that I had. And so that's fine, that's fine. But I guess this is more flagging a couple of things that kind of came up to me with, you don't have to answer them, but the other big issue was, you talked a lot about the Williams case and intent and objective and subjective intent. And I really wanted to understand that a little bit better that because, and this is I guess as much for some of the new folks on the committee that what we were presented is just one part of the definitions for what we're dealing with in this bill. Thank you. But it's helpful to have actually, I looked at the whole title 13, chapter 64 to understand the context of this change. And for those, when you get past the definitions, when you get into the actual offenses, each of those have a scene or have a state of mind requirement of knowledge, of intent, essentially. And it seems that that's where the intent language should be, not in the definition of what a simulation is or is not. And you don't have to necessarily comment on that, but just. Well, I will throw out a comment, I agree with you. And I think that the point from Williams was that there's a Supreme Court highlighted an intent requirement that was specific to the simulation, which makes it so that it would not necessarily be appropriate to be in the definition section, which flies across the board and really should only be in portions which have to do with simulation, which probably has a lot to do with why a lot of the other states that have laws about simulated child pornography have it as a standalone law and not as part of their normal possession of child pornography statue. But I think that probably me and David will be able to put together something that works one way or another and hopefully doesn't require a homestatch. OK, yeah, all right, I appreciate that. I guess I didn't quite read Williams the same way as you did, but I'll let you and David figure that out. So thank you. And maybe next time we can get into it a little deeper on constitutional issues. Sounds good. Any other questions for Marshall? I'm not seeing any other hands. Make sure I'm not missing anybody. OK. If not, Marshall, are you all set? Because I'll turn to David now. Anything else? Thank you very much. Great, OK. David, good morning. Good morning. Thanks to the committee for their consideration on this bill. And I have mostly good news for you, which is that although I think Marshall and I will remain far apart on some of our read of the case law, I do think that the changes that the deaf gen is concerned about are ones that we'll be able to figure out and come to an agreement on. Our read of the law is different. I think that the current way that the statute defines child is a very typical way that statutes work. We often have definition sections at the beginning of a statutory chapter. And then the way that a particular word is defined holds throughout the chapter. So anytime you see the word, it is defined the way the definition section says it is. And again, that seems typical to me. And I think the definition we have that child means any person under 16 years of age is clear that we couldn't be talking about simulations or things that are not persons who are under 16. That being said, I think we can hew as closely as possible to the constitutional precedence and just close off any possible doubt there. And we're fine to work on that. The issue around the intent, again, my read of it is that the current intent language is typical intent language that ensures that the person has to have meant to have possession of that, which is unlawful to have. But again, happy to close the loop there and make sure that we are being very clear and clear in a way that will both satisfy the defender general, but also on our side, we want to make sure that we're not writing in an intent standard that's so high that it is outside the normal standards that we would use for describing criminal conduct or saying that conduct is criminal. So I do think that that's an area where our office and the defender general will be able to work together to come to agreement on that. But just a couple other points that I wanted to make. And Marshall, I could clearly have a hour-long appellate argument on this. And who knows, maybe we will someday. So I don't want to belabor some of the disagreement because, again, I think we'll be able to come to an agreement on the key points. But I did just want to say, in terms of the potential overbreath challenge, which is a constitutional challenge that would say that because a law encompasses too much speech that is protected by the First Amendment, it is therefore overbroad. It needs to be struck down. And Marshall's concern was that this could be subject to an overbreath challenge. And as a result, the entirety of the child sexual abuse statutes could be struck down. I don't read the laws the same way in terms of what the danger is there. I think that two things, I don't think that it would be subject to an overbreath challenge. And that's our sort of fundamental disagreement. But a secondary disagreement or area where we see the law differently is how a court would deal with that if it did. And we, again, I don't think we need to go into this in great detail, but there's something called a doctrine of severability. And my read of this is that it would be very easy for a court. And a court would, in fact, just excite the piece of the law that is creating the overbreath challenge. And it would be very easy for them to do that because it's own little section that we are proposing in this bill. And they could easily just take that out and say the rest of the law stands and is operable without that section. And that would be, I think, a typical way of analyzing this, the way courts normally analyze overbreath, I should say, yeah, overbreath challenges and the severability doctrine. So I don't share that fear or that concern. I think the statutes are going to be fine as a matter of even if there were to be a constitutional problem. And again, my underlying disagreement is whether there even is a danger. And we just, the way the statutes drafted now, we don't think there is. Obviously, Marshall and I read the Ferber case very differently, which is that underlying the sort of original case that lays out the Supreme Court's doctrine on child pornography and pulls it out of protected speech, generally. The Ferber actually was decided on an overbreath doctrine. They say in Ferber, and I can just read one sentence really quickly, the court says, applying these principles. And when they say these principles, the court was talking about First Amendment principles. They say, applying these principles, we hold that the relevant statutory section is not substantially overbroad. So Ferber, as like the core of what it's doing, it's not just extra verbiage that it's thrown in there as speculation about what the law might be. They're saying our whole thing is that we are looking at the whole expansive sweep of this law. And we're not just looking at the particular circumstances of the case that brought Ferber to court, that the prosecutors charged Ferber with. And we're saying, looking at the whole expansive sweep, this is not overbroad. And in order to do that, they had to. They necessarily had to and are reading that they did look at all possible uses of the law, including the simulation aspect of it, which was necessarily a part of the section that they were reviewing. And again, when you're doing an overbreath challenge, the court looks at everything. And so I believe that they had to look at that. I believe that the text shows that they did look at that and consider that the simulated aspect of it. And that's just the logic of an overbreath challenge, is let's look at the whole sweep, see if there's too much that's caught up in it. Ferber decides it's not. Again, that's an area where the defender general and I disagree on the law. But we think that because of that, we are in very safe territory because of the statute we're proposing is very similar to the Ferber statute. The defender general brought up the point that there could be differences in the way we are proposing that this law be structured that makes it more vulnerable to appeal than the similar statutes in other cases. Again, my reading of the other state's laws is that we're all doing it very similar. We said similarly, we set out a definition in a definition section that includes, that now our proposal would be that now it includes simulated as part of the definition. And then in other sections, you apply that, you write the statute that actually criminalize a certain behavior relying on the definition section to clarify exactly what it is that is being outlawed. And we're following the same formula, I think, that most of the other states follow. And so I don't see us as being in uniquely concerning territory constitutionally. So again, I think that the defender general and I could have very long and interesting argument, maybe teach a class someday about this stuff. But I think that we are going to be, the actual areas of language disagreement, textual disagreement are relatively narrow. And I think we'll be able to find our way through those. So I look forward to bringing that back to the committee. Great, well, I certainly appreciate that. And I echo Representative Burdett's comments that often some of the best work that gets produced is when parties stakeholders do work together. And for new members, often I will send people off to the cafeteria and we're out into the hall or something like that. And just with a little time and patience, things often do get narrowed down or perhaps really worked out in full. So I do appreciate both Attorney General's office and Defender General's office in your efforts. So committee members, I realize there's a lot of legal terms flying around. And if anybody would like just some clarity or review, we've heard severability, you could say it, what else, over breath, all sorts of things. So we have Michelle here who could review some of those terms or do just a general summary or overview of the concepts that what we've been hearing and what is in consideration. Would that be helpful for people? I see, yes, okay. So Bob, just you raising your hand means yes, we absolutely will do that and I appreciate you stepping up, Martin. Yeah, actually, and if Michelle can start with the concept of, well, I use the fancy term C-Enter but the state of mind necessary in criminal law because I think that's something we're gonna run into again and again, so that would be helpful if she could start with that. Putting you on the spot, Michelle, but certainly if you wanna take a break for a few minutes to kind of collect your thoughts, but. Well, I would, I'm happy to chime in. You know, the two witnesses deal with a lot of this stuff much more often than I do, so I'm just gonna go a little bit off the cuff here. So in talking with Martin's talking about mens rea, the mental state of the person's intent is that is when you think about it and you think about the different criminal laws, an important, an essential element there is what is the intent of the actor? And then there's levels of intent that within, that are used within the statute. So what you wanna know is so if you think about, maybe think about something that people probably think of if you watch a crime drama or something like that and you think about like first degree murder, so everybody kind of has heard that term or things like that is, and we're talking about there's different levels, so something like that would be premeditated or intentional. So there was like a clear intent to commit the act. On the other spectrum, on the other side of that you might have something like negligence. So it would be that it wasn't an intentional act that the person took but through their negligence was their state of mind with regard to the act that would subjected them to the criminal offense. And there's, I can, what I can do is I think I have an old thing that I did years ago for judiciary magazine, you might remember is I did like a glossary. Do you remember that? It's probably like 15 years old or something. And I bet it's probably in our DOCS management system and I can pull that up and send it to y'all that might be helpful. And so it'll go over some of those terms that we use in here fairly often and we can talk about those things. So I think the intent issue obviously comes into the thing is about with the child sexual abuse materials because it's, everybody's very concerned understandably making sure that someone who isn't charged with one of these offenses through mistake or they weren't intending to download the information or be in possession of that information. And so intent really does come up as a very important issue within these particular types of crimes. And so let me look for that document and then I can do that. You can also, I can probably pull the jury instructions that Vermont has with regard to the intent. And so it can kind of give a bit of a more built out description of the intent that we use here in Vermont. So you also mentioned severability and I think both of the witnesses have been talking about that. There's the doctrine of severability meaning essentially that the court should only invalidate the unconstitutional portions of a law rather than bringing the whole thing down and leaving. So generally there's that, but also I think I just sent you guys the citation for what we have in statute in title one. So there is a severability just generally applicable statute that we have in Vermont law. Sometimes you'll see legislation in Vermont that will have its own severability clause. And I always kind of wonder why that's in there sometimes because we have the title one provision, but sometimes people just like to see it on the page for reassurance, but that's the issue of severability. Then on the overbreath issue is, I can't really talk, it's been, I think I haven't dealt with this in a while, but that's generally what everybody's been talking about which is that you wanna make sure that when you're talking about creating a criminal statute that implicates speech that you're not sweeping in a bunch of constitutionally protected speech, you wanna be making sure that it's narrowly targeted right at that particular conduct that you wanna prohibit that you have a valid basis to be able to prohibit because it's not constitutionally protected because there's a compelling state interest as to why you have to make some infringements things like that. And so the overbreath is just making sure that we're trying to do the good work that you wanna do that you're not unintentionally bringing in and affecting other areas that are protected. So, is that helpful? Thank you so much. Is that questions? Anybody? Certainly if a professor's share and Paul's wanna weigh in on a- Yeah, weigh in. Just looking for a hands, many members of the... Bob, was that helpful to you? Kate, Felicia, I think you know some of this, but, oh, everybody's okay. And I also comment that I don't like, I don't like crimes that have negligence as the men's rail. There aren't a whole lot of those, but... Also, anyone is always free, if you wanna email me, set up a time to talk, ask me for some resources and stuff. I'm always available for stuff like that. If you don't wanna take up committee time, always happy to sit down and chat with any of you about any of this stuff. And I'll give an endorsement that it's really, it's been really helpful when I have reached out to Michelle. So I highly recommend it. All right. So, I think we will pause on H-18. I think it'd be helpful to see what happens after defender general's office and attorney general's office meet with Michelle. Hopefully you will do that. I know Monday's a holiday. Hopefully you will do that earlier in the week because I would like to get back to this Wednesday and Thursday. We're still working on the agenda, but it'd be good to have, if that's possible, to get back to this and see where we're headed, because I know this is an important bill, especially to our lead sponsor, and I've heard it. So, all right. Well, great. Well, thank you, David, Marshall, and Michelle. And then we don't have anything else scheduled this morning, but committee, let's just take some time to talk about the week, how it went, what we're looking to do ahead. Michelle, I think we're all, I'll sit with you if you, I'm sure you have other things that you need to do. Well, I could multiply task. Is it, I was thinking, maybe if you're talking about planning, it might just kind of stay on and listen. Okay, sure, absolutely. So, so far, committee, we are, we're gonna take up this bill, H-18. We're gonna go back to H-20, which was the pretrial services that we looked at yesterday and hear from Judge Greerson, Eric, the ways that we heard from yesterday. So, the Attorney General's Office, the Attorney General's Office, I'm gonna hold off on the Department of Corrections at this point, because I think, I'm hoping that things will become illuminated and clearer when we go back to the witnesses and to Eric from yesterday and move on from there. The other thing we talked about is when we heard from Judge Zones, the chair of the Sentencing Commission and he mentioned that the Sentencing Commission is going to expire in less than a year. It's going to sunset. That's another term that we use around here quite a bit. And what a sunset, often we'll put in the sunsets when we pass something saying, you know, let's come back. Let's come back in a year or two. In a year or two, let's come back and visit this to make sure if this is still working, if there's anything else we need to do. And so, that's called a sunset. And we can either eliminate the sunsets and have whatever the law is or the commission or whatever continue without a yearly or every two-year review, or we can extend it. So, we do continue to come back. So, that's something that I would like to look at. And we talked about doing it as a committee bill, because I thought that would be an interesting exercise and learning experience for us. But a committee bill is something that, where we, the Judiciary Committee, become the sponsors of the bill. And I'm hoping that the Sentencing Commission sunset is something that we will all agree on and that shouldn't be too complicated. So, that's what I have on my seat. Tom, go ahead. Just something that came to mind as you were speaking about the sunset laws. And I see a similarity between that and session law in that they potentially, I mean, the sunset law is potentially coming to an end, but the session law, a law does come to an end. And maybe you could just touch on that a little bit. In terms of what session law is. As far as the session law and just, I guess the difference between them. Okay. So, Michelle, this is where I may need you, but my understanding of session law is that it doesn't go in the green books. That's not a very good explanation, but it's sort of the reasoning. It might be legislative intent, but there's probably a rule. There's probably a rule with legislative counsel as to what does or doesn't go into session law. So, I would rather defer to Michelle if she's available, unless there's another member that knows the answer. Sorry to put you on the spot. It's fine. I think Michelle is multitasking. That would be my guess. Which is fine. I mean, we can certainly talk to them. Do you know? Do you know what? I mean, it's usually like statements of purpose, intent, things like that. So, after six years, I still don't know exactly what the difference is. So, I'm eager to hear what Michelle tells us. Okay. All right. Well, as you see, so for new members, doesn't matter how long you've been here, lots of things we don't know and lots of things to still learn. So, okay, the, I'm trying to think if I'm, so the other thing that we were looking at in terms of a agenda, so it came up the preamble to criminal code or some sort of, I'm still ambiguous as to where this would go, but one of the things I was thinking about is some sort of session as a committee where we go back and say, we've heard this testimony, we've met a number of the justice system players. What do we think the purpose of the justice system is? And do something like we've done in the past. And I'm sorry, Selena isn't here, but I would see her, right? But she has been great at being our note taker and our scribe in terms of using whiteboard and really putting up there, just what our thoughts are. It's not about right answers, wrong answers, but it's to do that type of exercise. And I will send you, Mike found, we did it twice. The first time we did sort of a more of a kind of a mission statement, and then actually Ken, I think this came from some of your questions where we looked at what is the role of the judiciary committee? And that was another thing where we just put things up on the board and it was helpful because I felt that it grounded us, it summarized things that we had heard and there are oftentimes when we were asked to look at something and I would say, nope, it's not in our lane and I would point to the whiteboard and I would say, this is our role, that's not up there, that's institution's role. So I welcome Ken or others to chime in about that process and whether something like that would interest you. I know it's a bit vague. And also in terms of, if anybody else can add more clarity in terms of the preamble that either Judge Zones was talking about or Bobby Sand, that'd be helpful too. Tom, your hand went, are you? No, I put it down. Okay. Ken, do you remember that exercise we did in terms of the role of the judiciary committee? Can't hear you. I can't, let me see if I can. There goes a hand up and I just put it down. I just, right now it's, in case you haven't noticed, I'm just sitting here kind of staring intently because the couple of things that we've done already are just trying to understand the basics where things come from, how things develop where they are. To a certain point to anybody that has no idea of the judicial system and maybe I'm the least knowledgeable person here because I just have what I would use as a common sense approach, but that's not how things get done here. And I don't mean that in a bad way, it's just, I would just go for it to get stuff done and then tweak it as it goes, moves forward and the lawyer's just tear it apart. So going back to the whiteboard, I actually think that I still have that on my phone somewhere of what we wrote down because I thought that was interesting. And I think this committee, or me personally, like right now today, like I'm so overwhelmed with this child thing, just really, really bothers me immensely. And it's just trying to keep it so I can understand it and then learn as we go. And then when you go and you hear David and Marshall going back and forth on it, it's like, okay, so I'm just sitting here not saying anything and trying to learn from that. I don't know if I just made any sense, but that's where I am. Yeah. Now, you didn't make sense. Is there what would be helpful in terms of the H18 that we're working on, the child abuse, child sexual exploitation? What would be helpful for you to, do you need, do you want to listen to Michelle? Do you? I think just hear more. I think a lot of times just sitting and listening and learning and watching where people are coming from. And the professionals go at it and then I think with me, it's just a lot of my common sense of how I look at things and how I make decisions. It's what I've always done. I'm kind of lucky in most ways. I've never needed or used lawyers a lot. So, it's like when I first came in judicial, it's like, oh my God, this is an overwhelming committee, but also very satisfying in what we do. God, I can't believe I just admitted that. I'm down. Well, again, so our role is to listen to the witnesses and they are subject matter witnesses. So in this case, we have the attorney general and the defender general's office. And then we also have counsel who is non-partisan, does not take a side, but does as our attorneys explain the law to us. And then in the end, it's up to us to decide whether or not it's good policy. And based on the testimony and legal counsel that we've received. And I think that was one of the things. It's just like when I said about the judge, it's like what I was really looking for was past practice of what's happened in the courts to learn by that. And then it's like, obviously that's where you got to go and use who's available to you, the profession, Michelle and stuff like that that we've done. And where David's coming from and where Marshall's coming from. And then I assume at some point we'll probably have Rory in here for speaking on stuff on Washington County. But it's just a lot going on with us. It's a lot. No, we are busy committee and we did jump in because that tends to be my style. So Kate, I see your, oh, Barbara, I'm sorry, I don't know who raised their hand first. But, and I also wanted to say that, so Martin sent me the role of the judiciary and also Mike yesterday sent me the other one. So I'm just trying to figure out what we did on the whiteboard. I'm trying to figure out how we can either screen share or get it back, maybe email it to everybody on the committee. Welcome, Selina. I see that you've joined. We're talking about doing some more sort of committee thinking, visioning, defining. This is a follow up to both morning, both Bobby Sand and Judge Zone is talking about some sort of preamble or something like that. But we had talked about the justice system, the thoughts on the justice system. So that's where we are. And we're also talking about next week and what we'll do next. So, I gave you lots of kudos for your role. Sorry to be a little late. I had to. You wanted an intern? Yeah, yeah. So good to see you. So how about Kate and then Barbara? Yeah, I just had a comment. I just wanted to say that I would really appreciate that kind of exercise. I feel like just generally for me, anytime I work with a group, certainly a group like this that has such important intent, it's really helpful to ground myself in a mission or a vision. And I think particularly with the work that we're doing, it's so complex in terms of trying to thread this needle of, we wanna protect the most vulnerable, but in our judicial system, the most vulnerable is sitting on both sides of the courtroom. And so how do we honor that? And I think having some definitions for me and some guardrails and some things to sort of ground myself in are really helpful. I'm listening to testimony and sort of thinking about where we're headed at any given moment. Right, so yeah, so thank you. Thank you, Mike. And yeah, we certainly can build off of this one, but I actually would love a clean slate because we're a new committee. Yeah, or we could put this to the side or something, but I don't, I really want it to come from us, because we're a new committee and our new members bring new things to the committee. And also I think those of us who as with each year, we learn more and do more, I think it's helpful. But it is great to have this. It's also, the other one was the mission statement and that was sort of a timeline looking at all the different points where a person might come in contact with the justice system, which I think is also helpful because often we start from arrest or a police stop or something like that. And we're learning in terms of off-ramps that there's, it's really a much longer continuum. Barbara. So I am actually trying to build on Maxine, what you and Kate have just talked about. It seems like if as a group we could articulate and where we have agreement, put those in one spot and where other principles are really important to people, but we don't have agreement, like put those in another spot. But like what is our vision for what the judicial system and other areas that we have jurisdiction over should look like? Like people should get their business done quickly or, so things that more than identifying the problems like sort of looking at what we all value so that we have sort of a lens to use as we're looking at bills. Like how does this fit in with the principles we all just agreed are so important? It reminds me a little bit of being on jury duty and having the jury, the judges or not his orders, but the jury guidelines or whatever, just so as we get into the thick of things, again, we can look at what the premises were that we see so as so valuable. Great, thank you. I appreciate that. And I, yeah, so I asked people to be thinking about it and somebody's trying to get into the, got my waiting room. Okay. And Selena also, I wanted to ask if you could perhaps take a lead on this as well, because you're so helpful and you're so good at this in terms of, and this would be next, we do this next week, so we could think about it over the weekend in early next week. But I do think that would be helpful. And Barbara, I like your idea of things that we don't agree on because I think we'll put up there deterrence, punishment. There'll be things where I think people do disagree or feel like we need more research or whatever, but it's still important to have that all up there as well. Martin. Very much a technical question and probably for Selena as much as anything. Selena, do you have one of those whiteboard apps like Trello? Have you heard of Trello? Yes, I am a Trello user. So that's an interesting thought. We could use that and just do some share screen. There is a whiteboard functionality in Zoom. I haven't used it, but I'd looked into it last session when we were sort of talking about maybe doing some group brainstorming. So there's also that option, but Trello is certainly like a much more visual, you know. Yeah, just to know how to use it, just to share screen and have your screen up that might be that technical part of it. Cause yeah, I've used it some as well and it really is a good visual tool. It is, it is, yeah, I like that. I like that approach, Martin, that's a good idea. And yeah, I'm happy to help sort of do note-taking and whatever degree of facilitation or co-facilitation to help with that. Yeah, and also possibly framing the prompt or the prompts too would be helpful. Coach. Thank you. Selena, we were talking about you as we were planning in a good way. And that whole discussion about the technical aspects, you know, did come up because we are visual people and as learners, that's really important. We've used both tools in a number of different activities that we've done and it is just so, you know, as we're getting used to the platforms that we're using, it's nice to be able to have that. But thanks for agreeing to help us through this part of the process because you do it so well. Oh, thanks. Yeah, of course it'll be team effort, like all the good things. Great, thank you. Thank you coach so much. Thank you. And let's see. Coach, do you have something else or? So your hand is still, no, okay. So can somebody refresh my memory or make a distinction if there is one between what Bobby Sand was saying in terms of a preamble or a, versus what Judge Zones was talking about. I'm still trying to, somebody have that in there. I see Selena. Yeah, thank you. I'm not quite sure what Judge Zones suggestion was, but I know that Bobby was specifically, I think suggested really looking at like, is it time to write, and even if it's just a hypothetical one, a preamble to the whole criminal code. Essentially, although we sort of don't quite have a criminal code the way that some states do, but that was how I understood that, but I'm not, I'm not, I don't know, I'm not quite sure what Judge Zones was suggesting. Okay, that's helpful. Thank you. Sure, I'm gonna go to Martin. I see other hands when I go to Martin because of this, because of the Sentencing Commission. And then I'll go to Coach Kate. I mean, this has been part of the effort we're trying to get to the point of having like, following the model penal code in our own special way. And that was what H580 was and what the Sentencing Commission is working towards. So you're right, Selena, we don't really have that right now, but that's kind of the end goal. And I would think just maybe the Sentencing Commission should ponder or look at whether there is something like this that the model penal code or other states that have real criminal codes, if they have these kinds of preambles, that may be something to work on or to look at. We don't really have a, I mean, maybe that's even something to have Eric take a look at for a possibility for a bill coming out of here. Okay. Thank you. So that's helpful. And I, what I was envisioning in terms of the exercise that we were talking about is something that is way before we even get to a preamble to the criminal code. So, okay, great. So coach and Kate or whoever, sorry if I'm going out of order. That's fine. I think Selena and Martin both capsulized the thought very well. I think for us, we can start at whatever juncture we'd like, I think as a committee, as far as that discussion, because it's new. We don't have one. It doesn't exist and the code doesn't exist. I think Martin's point about that's, why the commission and some of the work of the commission is so valuable because we're trying to bring this new entity into life, so to speak. So that being said, we have a number of resources. One of the things that came up in that discussion is continuing the commission and their work in general. Not like it's the never-ending story, but they did kind of, or at least Judge Zone shared his interest in getting more work done around the codes. So that's kind of an offer in a way to work towards an end of some sort. And then we just got a request from UVM for research process work as well. So, I mean, there's a number of resources that we could avail ourselves of, even there, even a short question, what are the other states doing? Something to that effect. So, I think that's a great question. What are the other states doing, something to that effect? But just a thought. Thank you. Kate. Yeah, thanks. I just just had some clarifying questions. These are the aspects of the judicial system get confused by it. It seems like there's like so many lanes and avenues of law. So when you're talking about criminal code and the sentencing commission or the group that's working on that, I think I'm probably 100% of the time gonna come down on the side of like we should ground ourselves in values always and name those. But just curious to get a little bit of definition or background around like what is it, what's the specific significance of a preamble for that particular sort of like lane of law? Okay, so generally, and actually I see Michelle has to go in a few minutes and it's sort of a good segue to session law versus what's in the green books. But preamble could be legislative intent. You know, what we're thinking, what the purpose is of the model penal code, you know, if we go that way or of a law so that people who are reading the law can look to that to understand or courts can look to that to understand what the legislative intent was, why we passed it. Yeah. Okay. But I'm gonna, because Michelle needs to go, Michelle, I couldn't really answer other than saying session law is stuff that doesn't go in the green books. Right. Like legislative intent and purpose, but that was not very clear. Right. So you're just wondering. We're all here on our Zoom, you know, where so we don't have the green books behind us like we normally do. Right, yes. I know I keep, I don't go into the office very often but sometimes when I do, I seem to be slowly one by one pilfering all my green books off the shelf because it's nice something that you have there is you have all the case notes and all of that kind of stuff that's in there. And you can sometimes it's just really nice to be flipping through a book instead of looking online all the time. But the difference between session law and what you put in statute is that there are some things that you want to have in legislation and session law has the same force of law as what you put in statute. So it doesn't have a lesser standard of adherence or anything like that. But there are some things that just don't really make sense to put in the books that will be there for years and years and years. And so examples of that are, you'll see that lots like with always with, or almost always with money provisions, with appropriations, right? So if you think about the budget, right? And every year there's a budget, you don't want to have books of budgets every year with things that are in statute. These are things that are important for a certain moment in time. And, but they don't necessarily need to stay in there for people to be looking up. So we use session law at the discretion of the attorney who's drafting it, but sometimes it is always up to you guys. So sometimes we may put in session law some purpose or intent and then it would appear in the section, in the statutory section but it'll appear in the notes in the bottom rather than up above. Sometimes it's really important to legislators and they say, no, we want it codified. We want it right up front there for folks to see. And that's, we don't tend to care about that. That can be a judgment call for you. But when we're drafting, we usually try, we make the initial call about stuff like that. Sometimes there will be findings and some people and some committees really love findings kind of setting up their argument for why they are going to, why are they are passing this legislation? From our office's standpoint, we're not necessarily huge fans of findings and we find, we usually recommend that those be in session law. Because sometimes it just goes on and on with a long list of, these are all the reasons why we think this is a good idea and it's, you can totally do that but I think generally that kind of stuff is good for session law and not necessarily needs to be codified. So it is available. You put stuff in there sometimes with intent and purpose to make sure so if they're tricky language issues and you wanna make absolutely clear and plain language that you guys are responding perhaps to a Vermont Supreme Court decision sometimes that happens is the court interprets something and they say, oh, this is kind of vague we're gonna interpret it this way and you guys next door say, ah, that's actually not what we meant and you wanna go back and so sometimes you'll put it in session law upfront in the bill and say, in response to this particular decision we are making this change and our intent is this. So session law important and you'll see it all the time in legislation but it's just a kind of a value judgment about whether or not it really needs to be part of the actual statute. We too, so is that helpful? Yeah, so we do study committees in session law. Again, that's something unless it's a committee, an oversight committee or a study committee that's gonna be going on for a long time but if you have one in shortened duration we put it in session law. So the committee is created it's gonna exist for a year or two they have a reporting requirement and then it disappears and so it may appear for a little while and then it's just gone and so what we do during the summers or this year we crammed into November and December is all the attorneys in our office we work with Lexis Nexus and we're essentially the editors of the green books and so we work with our publisher they take all the legislation that passes each year they incorporate it into these draft updates of all the green books and then they send those proofs to our office and then we all take different titles and we review them we review the language to make sure that the language was incorporated properly we review the notes and all of those types of things and so we're kind of keeping an eye and making sure that if there was session law lots of times the question from Lexis Nexus will be do you want this in the notes or not? Like is it important? So and then we make a judgment call about whether or not we think it's helpful for the reader who's gonna open the book do they need to see that language or is it just some study committee that is not really gonna not that study committees aren't important but it doesn't it doesn't matter for general interpretation of the statute. Thank you and Michelle do you happen to have a green book? Any green book because we're talking about I'm not sure that everybody knows just a prop doesn't matter what title but No, I was gonna grab my title 13 but it's actually under my iPad in which I'm talking to you right now we all have this right? Right. Sure I'm trying not the only one with stacks of books with all my devices. So these and usually what Maxine has us do what has one of like either me or Brent or Eric has come in at the beginning of the biennium and we just kind of walk through these a little bit and look at them and talk about how to use them. And you can get all of the statutes online do you want me to talk about this for a minute Sure, sure, yeah. But you can you they're all available online the statute so you've access to all of that and what you don't get are all the notes under it and those are just in the books. I prefer to use the green books if I can but like I sent you the link to the severability statute earlier and all of that stuff is on there and I would encourage you for the new folks go online I think our website is really great. I have access to everything I need through our document management system, things like that but I honestly I go off most often to the website because it's so easy to navigate and look up the statutes and have different windows open and looking at the different definitions and things like that. And so if you go on there and you can buzz around we typically work in this committee works in title four which is the judiciary title. So the titles are organized by subject matter there's 33 titles, judiciary is title four. You also work in title 12 which is court procedure title 13 which is crimes and criminal law title 14 which is the state's pro-weight law 15, 15A, 15B, 15C is all family law. So what you have title 15 is domestic relations so that's marriage divorce, child custody, stuff like that. 15A is adoption, 15B is an interstate compact I think I would have to say I haven't ever worked on 15B in the 20 plus years I've been here so I can't even remember and then 15C is actually your latest title that this committee worked really long and hard on a few years back on creating a brand new title just addressing the issue of parentage. And so that was a fun thing to work on updating the parentage laws to be recognizing the changing nature of families today because we had really some super old stuff on the books that didn't remotely reflect what's happening with families today. And so you have that one, 16, you also work sometimes in title 23 which is motor vehicles usually that's upstairs not but in the building upstairs then transportation but sometimes like things like DUI you guys work on those because there's criminal implications sometimes you're in title 28 which is corrections. So there's some overlap because with corrections you have something like you have things like probation probation is court imposed as opposed to like furlough which is DOC imposed so you guys will deal with things involving the courts and corrections. And then title 33 is human services and that you have the CHINS cases you have delinquency, you have those types of things child abuse and neglect. And so you'll work in 33 and then there's also 18 which is the health title and the regulated drugs. So the illegal drugs that's in title 18 in the health chapter. So Judiciary works in more titles and covers more things than really any other committee. That was really helpful. Thank you. Thank you. Tom. Yes, thank you. I just wanna skip back a little bit, Michelle. What I think I heard you say is that sometime intent goes into session law? Yeah, yep. Okay. And so not legal terms by any means. I mean session law comes to an end the way I put it at some point I don't know if it's the end of the year or the end of the session, whatever the date is. So in a situation where there's I guess some deliberation going on, they would still go back and look at that intent even though the session law has come to an end. The session law doesn't come to an end. Oh, I thought, I guess I'm under the impression that session law is only good for a period of time. No. Okay. No, I mean we use it when things are time limited like a study committee or an appropriation, things like that. Okay. It's not like it comes to an end unless you have language there that says it now ends. So like we study committees, it'll say and this committee shall no longer exist as of this date or whatever. But they're more like guiding documents. And when we're talking about intent, I just wanna make sure that I'm clear is that I'm talking about a statement from y'all around the intent of the act and the specific language as opposed to what we're talking about with Marshall and David, which is your mental state, your intent with regard to the act that subjected you to the criminal charge. That's a separate issue. Yes, yeah. Tom, are you thinking about sunsets? No, I guess I just misinterpreted what session law was. I was just thinking that we kind of needed to do something for a year, but whatever the period of time and after that period of time, it wasn't needed anymore if that's an explanation. But yeah, I guess I have a whole new view on what the definition of session law is. Thank you. Here, I'm gonna look up and give you an example. So if I go and I look at, this is a good example, I look at the civil unions law, right? We don't even have civil unions. I mean, people still have civil unions, but it's not like you now can establish a civil union or whatever. But at the time, so there's still the statutory scheme is still on the books, even though people can't now enter civil unions, but people still are out there who have civil unions. And there was a, as you can imagine, with something like this, responding to the Baker case and it being a very charged issue, it is there, we put in a purpose and we also put in legislative findings and I also apparently added a severability clause for belts and suspenders, so people would be clear on that. But that is all in the history note and I don't know if people can kind of, can you see that at all on there? Is that's a history note under there and it lists all of that. So that's helpful to have in there, but it's not, there's no wheel, it's just kind of y'all giving some context for the statutory language that you've adopted. So it's still good, it's valid, it's there for people to see. It's one of the nice things about using the books instead of online because those notes are not online. It gives you and it tells you like where you can go find it and pull up the act and take a look at it, but it's still there. I mean, if you didn't want it there any longer, you would have to repeal it just like you repeal a statute, a statute. Okay, great, thank you. Yeah, and Michelle, whenever you need to go. Sure, no, I just have my plumbers here, but it sounds like you let himself in, so it's all good, what else? Oh, all right, yeah, and we're adjourning at 11.45 anyway, but I see two hands, I see Kate and then Ken. Yeah, thank you. So I'm still trying to get a little bit of clarity around, so when you, I think you said title 13 was criminal law. So when we're talking about, we were talking about a preamble for criminal code or penal code, is that a separate thing or is that related to like that section of law that you're describing? You know, I didn't, I wasn't really keyed in to your discussion on the criminal code. I think what you guys were doing is kind of setting up the intro for why you're doing what you're doing and I don't know what Eric is calling it or if it's purpose or intent or whatever, but you know, that it'll be, you know, that might be something with adopting a whole new thing that you might want to, that you would probably want to codify, but it is part of it and it would go into title 13 with the changes. Is that, does that answer your question? Yeah. Yeah, thank you. I'm sure I'll have many more, but I think for now. And feel free to send me emails or whatever. Ken. So, Michelle, so the civil unions is in the green book and I assume it goes in the green book when it becomes law and how it became law or whatever, so you fall back on, that's where it is. Is that part correct? Yes, yep. Okay, and now because you're saying now with civil unions really aren't, you didn't say this, but in my mind it's like it doesn't matter anymore because it's just recognized as a marriage or whatever, it's not really even followed. It doesn't need to be followed, correct? Well, it does in the sense that, and so when we did marriage equality in 2009, there was a policy decision that to still leave civil unions on the books, not to repeal civil unions. Some states were looking at, like I think Connecticut, it was like it kind of turned your civil union into a marriage and converted it and then they adopted marriage equality, but at the time advocates, they said, well, some people really like it being civil unions, they wanna hold on to their civil union and they're not really interested in marriage because that doesn't fit for them or for whatever. So, and so, or they said, because at the time, and this is before the US Supreme Court had weighed in on the issue and states had very differing, had very different ways that they would approach this. So some states would recognize same sex couples and civil unions, but they wouldn't recognize marriage. It was just kind of all over the place. And so there were a lot of couples who at the time when this was still percolating through the courts that said, well, we have a civil union, now we're gonna get married, but we wanna have both because that affords us the greatest protection when we're traveling, especially if they have kids. And so there were folks who had both, but when we did marriage equality, we created a mechanism where if you had a civil union and you're like, yeah, that was like second class, I wanted to be out of that and I wanna be married that you could upon getting married, you could just automatically dissolve your civil union. So it's important that these laws are still there because there's still people out there who have civil unions. And so it's important that this law stays on the books so that you can see that what the rights are if you're in a civil union. So even though you can't get a civil union now, the law is still there. It wasn't repealed when we did marriage. The history of how it all happened and now it's marriage, it's called marriage equality. It's just marriage, everybody can get married. Beautiful, someday I will, all the way I am. Okay, Kate. Okay, I'm sorry, can you have another comment or question? No, okay, all right. Well, thank you, that was helpful. And Martin has sent us preamble, right? Too, I haven't looked at it, but something related to what we're talking about preamble to a model penal code. Be helpful. And Selena, I'll touch base with you over the weekend or early in the week to be thinking about how to formulate our everything session. And anybody else too, wanna reach out to me or just think about how to do this. But I think it'd be great to really start from the beginning of a new committee, do review what Mike has sent us in terms of what this committee has done in the past. But definitely start a news is what I would like to do. We still have a few more minutes before we adjourn. Any questions about next week or anything else? Kate. Thank you, just another clarifying question. So looking at what Mike said, and then are you all gonna be touching base about to sort of give some direction in terms of some like grounding questions that we might be thinking about or is that something we sort of define that? It's helpful for me if I have sort of like a specific question or thing that I'm brainstorming around. Yeah, so I'm open to what those questions could be. So, and if you wanna work with Selena or reach out to me, it's really, I want this to come from everybody in kind of an organic process. It'd be great to have your thoughts on what some of those questions would be. Does that answer your question? Or are you looking for more specific, you know, this is what we're gonna be doing. This is what we're gonna be answering. Yeah, however, I think just looking for some clarity around how you wanted to manage it if you were gonna pass down questions or it sounds like it's a more sort of like organic team process. So I'm happy to shoot out like how I might be thinking about the broader question that you're bringing up and I can email those to you all. Yeah, that would be great. And actually, if you and Selena wanna be a little study committee or something, subcommittee or subcommittee. Yeah, let's do that. Yeah, great. Thank you. Sounds great. Thank you. Anybody else? All right, well, great. Well, thank you everybody. Have a restful weekend and be safe and healthy. And thank you, Mike. I don't see what I know you're on. Thank you so much for helping us out and for the week. And I will look out for the agenda, for the draft agenda. And Monday is a holiday. So legislative council does have the day off, but we will get you an agenda as soon as possible. But Tuesdays, as usual, we're on the floor at 10 caucuses and lunch. So general rule for Tuesday is committee at 1.15. Okay. And then Wednesday and Thursday, the general rule is 15 minutes after the floor in the afternoon, but mornings on Wednesdays and Thursdays is at nine. And then Friday again, 15 minutes after the floor. There will be some Friday afternoons where we will be meeting, but not until 1.15 because of caucuses and tax workshops and various other things going on. I think the date of the budget was just set or we'll decide on that, but there will be times where we'll have joint sessions and other things will come in that we'll need to work around. So, all right. Anything else before we adjourn? Thank you.