 Good afternoon, and welcome back to House Judiciary Committee. It is at 1.18 in the afternoon, and we are going to get a walk-through on S-140, which is an act relating to prohibiting civil arrests at courthouses. I'm going to walk you today and we'll have the witnesses tomorrow. With that, I will welcome our legislative counsel, Eric Patrick. Good afternoon. Good afternoon. Thank you very much. Nice to see everybody. This is Eric, that's Patrick with the Office of Legislative Counsel, here to walk the committee through Senate Bill number 140, which is an act relating to prohibiting civil arrests at courthouses. This is one of those bills where a little bit of background is very helpful before we dive into the language of the bill because it's the order of understand the context in which the language operates. It's really helpful in this case actually to have a little bit of historical background, because what's going on in this bill is that it is proposing to codify a privilege that has been in existence for hundreds of years in the common law. Started in the common law in England and when we say common law, we mean as the committee knows, law that has developed in the courts over the years. It's not by statute, but has developed through court decisions over the years, which are sometimes codified in statute and that is what the proposal is to do here. What has been the case for as I say, quite a number of centuries since English common law, is that there has been this prohibition on civil arrest at courthouses. What that means is, when we say civil arrests, that means an arrest for purposes and it's actually in the language of the bill. If you look at the second page further down in the bill, the term is defined and it's defined as an arrest for purposes of obtaining a person's presence or attendance at a civil proceeding, including an immigration proceeding. In other words, a civil arrest has nothing to do with the criminal law. It's got nothing to do with an arrest warrant that's issued for the commission of a crime. It's got nothing to do with a person being arrested by a police officer because there's probable cause to believe the person committed to crime. It's got absolutely the ability of law enforcement or anybody else to conduct a criminal arrest is completely unaffected by this bill. It only refers to the prohibition on civil arrests and that means that you're arresting a person in order to obtain their presence at a civil, not a criminal, a civil court proceeding. Now an obvious question that might come up as well, does that ever happen? That's a legitimate question because it doesn't happen much. It used to happen quite frequently. In the past historically, the primary way that a person's presence was obtained either as a witness or a party at a court proceeding, if they didn't come voluntarily, was to arrest them. There was a civil arrest of a person in order to bring them into court as a witness or a party in a civil proceeding. Now that's not done anymore because as the committee knows, nowadays the modern practice and certainly for quite some time now, is that the sheriff serves a summons on somebody either when they are needed as a witness at a proceeding or whether they are being sued and their presence is commanded at a proceeding, that's done through service of process. The sheriff brings them notice and a complaint and a summons and serves it to them and they sign it. And that's how a person's presence is obtained at a civil proceeding as opposed to a criminal one. But for a long time, that wasn't the case. If someone didn't appear voluntarily, they could be arrested civilly and brought to court for the proceeding. So as I mentioned, that practice doesn't occur anymore. But one of the few instances in which the civil arrest proceeding or mechanism I should say still happens is in immigration proceedings, federal immigration proceedings. When immigration and customs enforcement, for example, federal immigration agency arrests a person to bring them to an immigration proceeding, that is a civil arrest because the immigration proceedings are civil in nature. They're not criminal. So they are sometimes as people have potentially heard, it has been reported in the news that these arrests have taken place to secure someone's presence for either deportation or immigration proceedings of another nature in federal, arrested by a federal officer and brought before a federal tribunal for that sort of proceeding. So that's sort of the background of what is going on in S140 because the proposal here is to prohibit those kinds of arrests that a person can't be arrested for purposes of their appearance in the civil proceeding. I know everybody's got a copy of the bill. So I don't think I'll ask the chair to probably don't need a screen share for the bill, I assume. There is one. I want to do a quick screen share if that's OK because there's a very recent federal court case from the Southern District of New York in which this federal privilege that I'm talking about, sorry, not federal privilege, this privilege against civil arrest was discussed. And I highlighted a couple of pieces from it that might be interesting for the committee to understand. So if that works OK, I could just share that for a moment. Sure, sure. Thank you. I'll just do, shouldn't take, oops, great. Now as I say, this court decision was recent, I believe, it's December of 2019. And it came up precisely because of an arrest for purposes of an immigration proceeding, a federal immigration proceeding, as I just mentioned. And it happened in the state of New York. Sorry, why is that not working? Here we go. Can everyone see this highlighted language? Not yet. Is there a co-host? Yeah, there we go. Is that OK now? Yeah. Oh, thank you. Thank you. But yes, so this is from December 2019 in the US District Court, Southern District of New York, case called Gonzales for the United States Immigration and Customs Enforcement. And the judge discussed this privilege against civil arrest at courthouses in extensive detail. And I have a copy of the full case if anyone wants to take a look at it. It's actually interesting. But I just highlighted a couple of pieces that I thought would be interesting for the committee to understand before we walk through the language of the bill. You see the court discussed the history of the privilege and that it dated to English common law. And it was a privilege against any civil arrest in and around courthouses. And also against civil arrests of witnesses and parties necessarily traveling to and from the courthouse. Some language that the court quotes from Blackstone's commentaries, which is an ancient and famous treatise on the law, sort of states the privilege quite clearly, suitors, witnesses, and other persons necessarily attending any courts of record upon business are not to be arrested during their actual attendance, which includes their necessary coming and going. The coming and going piece, you see actually it's not highlighted, but it says in the middle of the paragraph there that it dates to at least the 15th century. So it has quite a bit of history behind it. There's a case from 1791 here that's quoted in the bottom of this page in the top of the next one, which just has the phrase that the privilege applies. This is the first line of the next page. Privilege from arrest, ayuendo, ayuridayuendo. My pronunciation of that Latin is probably way off, but it means going and returning. That was interesting. So applies going and returning to the courthouse. You see, the purpose of it is to encourage parties and witnesses to come forward voluntarily, which makes sense. The idea is that witnesses and parties are afraid that they're going to be arrested when they show up at the courthouse, then they're less likely to appear voluntarily and also to maintain order in the courthouse so that there isn't the tumult, as the case refers to, that would occur if arrests are occurring at the courthouse. So as I mentioned, the privilege was adopted into American common law after independence, so it's part of American common law, and it's never thought to apply to criminal arrests. It's civil only. So this privilege does exist, but the question that the court had to decide in the New York cases, well, does that privilege apply when someone is arrested by federal authorities for purposes of an immigration proceeding? So the court said it did. Privilege does apply. So a person could not be arrested for that, but that applies only in New York. Now, it's actually only in the southern district of New York since it's one federal court case and one district of the federal court system. So the proposal in S140 is to make that privilege to make clear, to codify this common law privilege, make it a part of Vermont statute so that it would apply to arrest at Vermont courthouses under the statute if it were to pass. Should mention that two other states have passed similar legislation in which I certainly looked at those when I was drafting this language, and they are after the court decision actually, New York passed the statute. So subsequent to that decision from the southern district, New York does now have a statute that codifies the common law privilege and Colorado as well. So there are two states that at least that I'm aware of that have similar statutes in place now. So having said that, that's sort of the background and the big picture of how the privilege works and what the general purpose of S140 is. You'll see when you look at the language that specifically does what I just described in general terms and the first subsection, subsection A proposes to add this new section in the court procedure set title, title 12. Subsection A just lays out the prohibition quite clearly any person or a family member or household member of the person. So it's not just the person, but it's also the person's family or household member who is attending a court proceeding in good faith as a party, juror, attorney or witness. So it can be any one of those roles that the person has for a court proceeding and while they're attending it, they are privileged from civil arrest while they're either traveling to, entering, remaining at or returning from the court proceeding. So that's the general prohibition. A person has this privilege not to be arrested while they're going to or returning from or at a court proceeding. Now, there's some exceptions in subsection B, you see. Excuse me, Eric. Yeah, sorry, please go ahead. Just trying to under, so juror, attorney, witness, those roles are clear to me. Party, do we mean sort of like a part, someone that has like a legal party status in the proceedings? Yes, yes, yes, absolutely. Someone who was just, if I was just there to support a family member who was a defendant or a plaintiff, in a case, my reading is I would not be covered by this language because I'm not there as kind of a form in one of the, a formal role in regards to the case itself. I'm just kind of there as a familial support person in a household member. Yes, if you were not a family member. Well, maybe I was a household member, but I wasn't attending in one of these specific roles. Do you know what I mean? Like if I went and my spouse was a defendant and I was just kind of sitting there in the courtroom to be a support person for them, I wouldn't be covered under this law. If I was called as a witness in the proceedings, I would be. Am I reading that correctly? Yes, I think you've got it. Yep, exactly. Thank you. Yeah, sure. Madam Chair. Yes. So this happened right here in our court, the Windsor. Courthouse. A family member drove another family member to our courthouse and basically was detained by ICE because they heard that he would be driving his spouse for a ticket here. So is that person just out of luck at that point in the courthouse? If the person was not going to be a witness, you mean? Right. Then I think the way the language is written that yeah, if the person was not going to be either a party, a witness, juror, et cetera, they would be covered as a witness they would be covered as a family member, but they would also have to fit one of those categories. So in addition, so unless you met one of those categories, basically you're kind of out of luck is what I'm hearing. Yeah, I think that's right. If you don't fit into a category, then the privilege doesn't apply. I think that's the right reading of it. Okay, I'm not sure where I'm at as far as amending, but it just, you know, that's basically what happened here. And even if this was in existence, it wouldn't have helped this family from the detention component. Okay, thank you. Yeah, so Eric, what would happen to use a scenario that the coach just used and say the person driving the other person in is in one of these categories? It's a federal agency that is there to make the arrest or whatever, do they go by federal law or state law? Well, that's a very good question. And it was actually, you probably mean to also ask, what about the supremacy clause, right? The what you said? The supremacy clause of the United States Constitution. I think that's what we're getting at. Yeah, and it's a legitimate question. And in fact, it was addressed in the federal court decision that I was referring to earlier. The one in New York? Exactly, yep. And what the court held in that case was that, yes, generally speaking, federal law is supreme under the supremacy clause of the United States Constitution to the extent that federal law either expressly overrule state law or whether it by implication overrule state law. But what the court held in that case was that federal immigration law also was subject to the privilege, to this common law privilege predated federal immigration law as I was mentioning goes back many centuries. And the court said, yeah, federal immigration law by implication adopted this privilege is when the United States adopted the common law and independence and therefore the privilege still applies. So it's still prohibited. Now, that was one, to be frank, that was the Southern District of New York's conclusion. You would, I think, have to anticipate that a statute like this until either the Second Circuit, which Vermont is in, or the United States Supreme Court reaches the same conclusion, it's possible that question would be litigated. But there's grounds for concluding that the privilege could override federal law because of, for the reason that the judge indicated in the New York case. Okay, great. Eric, if you could send along the case for Amber to post that degree. Yeah, sure. It's a point, yeah. I actually, it might have been confusing in my email. It actually was in my previous email, but because they both had the same title, my excerpt and the full case itself. So I'll resend it if you can't find it, Amber. Thanks. Oh, no, I don't. That was my fault. I should have titled it differently. That has a question. I was gonna wait till you get done. You'll walk to Eric. I don't know if he's done it or not. But basically, I got two questions actually. So we are creating a Vermont law to direct federal law enforcement as to what they can and can't do. Because you'd have to give me an example where Vermont law enforcement would arrest anybody on a civil warrant heading to a civil court. Yeah, I think, I don't know of any other examples that when this would occur. So I think you're right that at least the most sort of well-known example is exactly that. It's arrest by federal immigration authorities, exactly. Because I've brought people to a civil court once or twice in my life. And if it's a civil arrest warrant, they're never gonna go to jail. They're gonna go to civil court. So I can't think of any other reason why if someone's going to civil court, Vermont law enforcement would arrest someone to continue their journey to civil court. And the example that you gave was, there's also an exception that says that Vermont law enforcement could be held liable if in fact assisting a law enforcement, a federal law enforcement agency from executing an arrest. That's right, yes, that's part of it. Well, if I drive down the road and in the perfect world and one of those law enforcement officers is getting assaulted, I can't stop and assist that person? Well, actually, we know that's a good point because that discussion came up in the Senate as well. As they wanted to be sure that the, if a state law enforcement officer is assisting a federal law enforcement officer for purposes of this arrest and in which they could be liable, they didn't want it to be a situation where they were, for example, coming to the defense of the federal law enforcement officer or they were unknowingly participating in an arrest for immigration purposes. So the language was inserted, you'll see, this is in remedies, subsection C1, person who violates the section by knowingly and willfully executing their assisting with the arrest. So you have to knowingly and intentionally be arresting someone for purposes of the civil proceeding in order for you to be liable. And one quick follow-up, if that might. Yeah. So if this passes and federal law enforcement can't execute for whatever reason because of recodifying something, if in fact they are doing that and local law enforcement drives by and they're being resisted or assaulted or whatever, just going back to the fruit of the poisonous tree. They had low legitimate reasons for being there to begin with, but if we stop and assist, does that also throw some of the fruit of the poisonous tree? Again, I think it goes back to whether the, They know it's not possible. Whether there's a knowing and intentional assisting with an arrest knowing that it's for immigration or some other civil purpose. So if they're assisting an arrest for purposes intentionally, knowing that it was in order to obtain the person's presence at a civil proceeding as opposed to a criminal proceeding, then that's where the prohibition applies. And that's where, in other words, if the person doesn't know that, the state law enforcement officer says just protecting the federal officer because they're involved in a scuffle or because they just simply don't know that they're assisting in an arrest that's for a civil proceeding, whether an immigration proceeding or some other kind, that they're not aware of it, then I don't think they would be prohibited from helping. On the bottom line here, we're creating a section of law to address federal law enforcement. Yeah, at least, yeah, certainly that's a big part of it, I think, yeah. It doesn't only apply to them, but I think you're right that at least that's the most sort of well-known example of when a civil arrest doesn't occur. Thank you. Yeah. So yeah. Oh, sorry, go ahead. No, I don't know if you've already walked through this part. On the subsection C1, this is probably, this may be nitpicky, I don't know, but is a civil contempt proceeding really an appropriate remedy in this situation? Isn't civil contempt to force somebody to do something, essentially? I just don't understand how a civil contempt proceeding works in this kind of scenario. I guess I'm not quite following the question. Well, if somebody violates the section by assisting with the arrest. Right. My understanding of a civil, well, my understanding, just tell me, I'm misunderstanding this part, a civil contempt proceeding is essentially to get somebody to do something that they're in contempt because they are not producing evidence or they are, it's not like a punishment. It is some way to coerce, essentially, the individual subject to the contempt to clear themselves of the contempt. Like how does one clear themselves of the contempt in this kind of situation? The action that has occurred has already passed. I think that I can look into this bit more, but I thought civil contempt was broader than that. And that, for example, someone who's disrupting the court and disobeying a court order, for example, could be held in contempt, even though the action has already passed and that that's used as a consequence for their behavior in court. And I think that was sort of the thought here is that it's because it's connected to court proceedings that would be an appropriate remedy. Okay. All right. Yeah, maybe I have a too narrow of an understanding of civil versus criminal contempt. But we can, it's worth looking into. I'm not a hundred percent sure. May I just check into where some other circumstances where civil contempt is used. So as representatives move on and notice we're getting at, that's the, those are the first provision of what the remedies are if the statute is violated. And that is specifically targeted at the person who violates. So in other words, if you're a law enforcement officer or someone else who violates this section by knowingly and willfully executing or assisting with a civil arrest, then you can be subject to civil contempt proceedings or you can be liable in a civil action for false imprisonment. So that's what can the penalties that are available for a person who violates. Now, if you go on in the remedies provision, you'll see that there's also civil remedies provided for the person who is arrested. So the person who is arrested in violation, in other words, there's a civil arrest contrary to the statute. They can bring a civil action in civil court in the civil division for damages that could include injunctive relief, equitable relief, punitive damages, costs and attorneys. So they have this ability to bring a civil lawsuit if they've been arrested in violation of the statute. And you'll see the office of the attorney general also has some authority to bring a civil action. In this case, for injunctive or equitable relief, that means, for example, an action to seek the court to declare that a certain practice is unlawful or to order that a certain practice not occur anymore. And so the AG's office is given specific authority to bring those sorts of actions. There's some immunity in subdivision four. You'll see that judiciary has immunity so that it can't be subject to any suits, any actions they take to maintain order or safety in the courtroom. And the civil arrest definition, I already went over. And the household member definition is the same as in the family law, actually relief from abuse orders. Provision defines family members because it's family members, sorry, household members who have the ability to bring RFA actions, to seek RFA's I should say. And that definition is just the same one that's used here. So that's the essentially what the bill does and what the language does. Thank you, Eric. I know that I'm still looking for attempts to be used in the family court. You have for instance failure to pay child support or yes, a failure to follow court order, basically. Yeah, I think, but the idea is that you can under civil contempt, I'm looking at the rule here and it conforts with what I thought I understood is you have to have the ability to purge the contempt. You can be fined or until you pay that child support is one situation. The situation where there's misbehavior in court, you can be held in contempt and you can be fined until you cease that behavior. When you cease that behavior, then you could purge your contempt. But in this situation, it's like an individual, just an arrest, a one-time kind of situation. It's not like an ongoing behavior, I don't think. I mean, it's not like they're gonna be arresting people continuously. It's a very rare event. So that's why it just doesn't seem to fit to me, but I'll defer to Eric on that, but. Okay. All right, well, yeah, Eric, we could get back to us on that, that'd be great. Sure. And we also, so we are gonna hear tomorrow from our witnesses. Yeah, so we can, you know, we can ask those questions as well. Okay, anything else, sir? Madam Speaker? I mean, I just promoted you. Little Freudian slip there. There was an article in our local paper today because we're kind of uniquely poised on the border of New Hampshire, Hartford is. So the upper valley, you know, is more like 60,000 people, you know, in one space. You know, the border really doesn't exist. To make a long story short, this is in relation to some of the testimony we took today, you know, regarding article 11 and a comment made, I think, and shared by us all, you know, the quality of the hire is critical. So the question becomes, you know, what's gotten us here? And it is that question of trust. So there's an article in the Valley News. I'd love to share it with you, and then you can tell me if you'd like us to, you know, to share it with the rest of the committee, but it speaks about what's going on in New Hampshire right now. And because we share that border, I know that a number of our officers have left Vermont to go to New Hampshire for employee. And every once in a while, we get some that come in that direction, but it's usually an exit migration, because they pay more. So which, you know, you got to take care of your family too, but it's more of the trust part of the article that I think you might find interesting. But I'll send that your way. Great, great, thank you. Thank you. Any questions for Eric on the language of this bill? Again, we'll hear a testimony tomorrow. Nope. Great, well thank you, Eric. Yeah, sure. Appreciate it. Thanks, Eric. Yeah, you bet. Thanks for coming in. Thank you. Definitely. Any other questions? Let me know. Okay, thanks. Great. So we have a brief break. We're going to start back up at two o'clock. Okay.