 This is actually Thursday, August 27th. And I know it's Thursday because Marley's at doggie day camp. We're taking up H962 and that correlating to the duration of the temporary relief from the views order. Before we do, I just want to be handed that before we went live, there was a brief discussion about some of the from the some of the committee members regarding the shooting in Kenosha, Wisconsin, and the fact that Senator Baruch has a bill that would limit firearms that protests. And so there was a brief discussion about that. And it was also discussion about what has been going on on the four corners in Bennington recently where the fireworks have been armed in protest of taking. And that is what they perceive as anti gun legislation. So there was that brief conversation and I don't want to have anybody come back and say, they were secretly talking about gun control. There was a conversation about what's happened, although I will say that the committee may discuss some of these things in the near future. As an eye towards building legislation for next year. But with that, Dick, if I could go would you like to comment. Yeah, I would like to make comment. So when Eric helped me write that bill. A year ago it was, it was imagining circumstances like those that are now actually taking place. So it was imagining that in open carry states, you might have very worked up protesters who are getting indirect encouragement from the White House. They're going to the streets with guns at protests, and then in the heat of that polarized environment, kill innocent protesters. And that's exactly what we're seeing. So the aim of that bill is to defend the public square to make sure that it remains a safe space for people to protest not just black lives matter but any issue that's of importance to them. And I just add that more than one state house has now been occupied by armed protesters. The bill also forbids weapons formally in state owned buildings and our state house. So I think those are starting to look more like very common sense protective measures. I mean, I agree this session probably isn't the time to deal with it but January I think would be a good, a good time to start that discussion. Yeah, but actually I would like that if we have time this session I'd like to at least have beginning discussion so that Eric can get some idea if he, if Eric is still the the person drafting the firearm legislation that give some idea and some committee discussion about the limits. I mean I've always felt that as an open carry state, frankly I'd rather know somebody's got the firearm than not know they have the firearm. I mean comfortable with the open carry and I've, you know, seen hunters in November, you know, walking our highways and roads, they're certainly doing their hunting and know all of that so. But this is we had situations at the four corners in Bennington. This is a major United States group seven and nine intersects in the town of Bennington, and we had several armed protesters there one day. And, you know, it scared a lot of the local business people and a lot of other people as well as intimidated a few tourists, but it did get attention that was their goal they got attention. Anyway, that was what we were talking about before we went live and I just feel like to be totally transparent, we should have that discussion live so people know what we're talking about. Other than that we did discuss my breakfast. And we discussed difficult and doggie day came and Alice's difficulty of getting online from Ludlow, which needs better broadband. But with that, I would turn it over to Eric to walk us through h962, which is a relief from abuse bill. I'll, I'll set centers here so they're sure I please is Eric. Okay. Well, good morning, everybody. It's Eric Fitzpatrick with the Office of Legislative Council. Nice to see everybody. We're taking up this morning and Senator Sears indicated each 962, which is an act relating to the duration of temporary relief from abuse orders. The language is pretty straightforward but it's one of those bills where it's very helpful to discuss for a couple of minutes what's going on with the temper relief from abuse orders generally kind of gives you a little background and that way you can, I think get a get a more clear handle on what the language is actually doing the change that it's proposing to make. Dealing with RFAs the acronym for relief from abuse orders. You remember that this committee has dealt with RFAs. Many times over the years and so I'm sure it's pretty familiar to everybody but the general concept is that a relief from abuse order is something that a court can issue. The plaintiff, the person comes into the court and is able to show that the plaintiff has been abused and that there's a danger of further future abuse. So they've been abused in the past, there's a danger of future abuse. The court finds those things it can issue in an RFA relief from abuse order can include, you know, whatever conditions are appropriate to protect the plaintiff could be, you know, physical distance. The defendant has to keep their physical distance from the plaintiff that can't go to the plaintiff's home can't contact the plaintiff's children, whatever conditions the statute says are necessary to protect the plaintiff can be included in the RFA. Now the important point that's going to help with understanding each 962 is to remember that there are two kinds of RFAs. There's a temporary RFA temporary emergency RFA, and there's the final RFA final relief from abuse order. What's the difference between the two things, the temporary RFA often called an emergency RFA and as you would expect from what it's called is only issued in an emergency. The court finds that there is not just a danger of future abuse, but what's called an immediate danger of future abuse. There's an immediate danger that it can introduce, sorry, it can order this temporary relief from abuse order, temporary RFA. A couple of big distinctions between the temporary and the final is the temporary, the defendant does not actually have to be there when the court issues it, which means you may recall the terminology for that is ex parte. So the order can be issued ex parte without the defendant present because of this emergency situation there frequently issued, you know, on the weekends at night during off court hours, those sorts of things when there's this emergency situation. But it's only another key point is the temporary order is only in effect for a maximum of 14 days. And that's for, it's a due process principle that's at the reason for that because the defendant wasn't there. And if you have a court issue in order that affects somebody's liberty interest and they're not present in court and the Constitution requires that they have to have another hearing within a reasonable period of time at which they can appear and defend themselves and argue against the order or whatever it is that that they'd like to say. So the way the statute is set up. The final hearing has to occur within 14 days after the temporary initial RFA is issued. And as I say the defendant isn't necessarily there when the when the temporary one is issued. Another key fact to remember now this is about both temporary and final orders is they general they have to be served to be personally served by a law enforcement officer before they take effect. If you think about it that's also there's a due process reason for that to you can't be required to comply with an order with criminal sanctions for not doing it if you've never been given it. If that's what it is you're supposed to do, then you know it's sort of a due process issue if you're then penalized later on for not complying with an order that you never saw. So they have to be personally served by a law enforcement officer, and that's another crucial point to age 962, because what 962 does is it is it attempts to close a sort of a time gap that I'll describe right now. So if you think about the timeline of how all this would happen. A plaintiff goes into court saying in an emergency situation says I need an emergency temporary relief from abuse order is able to show that there's an immediate danger of immediate future abuse as well as past abuse court issues the order has to be in effect for a maximum of 14 days and that order will always say right in it, here's when the final hearing is has the date right in it usually it's what has to be within that 14 day period. So they've got the order, it's in effect. It says, you know what includes whatever conditions are necessary to protect the plaintiff stay away don't contact me etc etc. The final hearing day comes along, let's say it's day 12, you know, it's within that 14 day period 12 days later, final hearing comes along. And if you and I'm going to right now turn to the language because this is we're going to get right into the language now with this, we're segueing right into it. If the defendant turns up at that final hearing. Then, the language, currently in 15 vsa 1105 which I'm looking at specifically says, the defendant who attends the hearing and receives notice from the court on the record that the final order has been issued because remember at that final hearing the courts going to hear from both parties and decide alright is there is there a danger future abuse and should I issue this final order that's going to be in effect for a much longer period of time up to a year. If the court goes ahead and issues that order, then the defendant who was physically present is deemed to have been served. Okay, that's the crucial point here because remember, these orders don't go into effect generally until they're personally served by a law enforcement officer, but if defendant turns up at that final hearing. And then they're deemed to have been served. So, if you think of the, the timeline, there's always a relief from abuse order in effect continuously because the temporary one was in effect until the final hearing at the final hearing defendant shows up court says okay I'm going to issue the order statute says they're deemed to have been served. They're served right then at that moment order goes into effect. So there's whatever conditions that are in effect or have been ordered by the court about what the plaintiff can do are in effect for the entire time. However, imagine the different scenario where the defendant does not turn up at the final hearing. Okay, so you have this temporary order. That's only an effect for 14 days. Final hearing takes place on day 12 defendant doesn't turn up. The defendant has not been served yet. So, or it usually takes time for that to happen, particularly if you have a defendant who isn't interested in being served. So you then have this potential for a time gap, because that temporary order expires after 14 days. So you have the hearing on day 12, 48 hours later temporary order goes away. There's no longer any conditions. Sorry, go ahead centers here when you say the person hasn't been served. They've never been served the temporary RFA. No, they were served the temporary, but that expires after 14 days. Okay, but they were serve the temporary we're not talking about people who couldn't be found to serve the temporary. No, that's correct, because the temporary also similarly can't go into effect until it served anyway, they have to be they have to find them and serve them. You're so you're right. It's they were served the temporary. And but then, you know, they decide not to turn up at the final hearing, temporary goes away. And then you're left with a period of time until they the law enforcement can find the person and serve the final, during which there's no order in effect, the conditions. The person can then freely contact plaintiff contact, you know, go to the house, whatever it is that they that they may have been prohibited from doing under the temporary order. Since it's not in effect anymore, then go ahead and do it and it's not unlawful. It's not illegal for them to do it. And that's what. This is the civil action, not a criminal action. Exactly. Yep. Exactly. Although they can be charged. I mean, they could have been charged with domestic assault or domestic violence or some nature. But this is a civil process so that not showing up isn't necessarily as like not showing up for a court hearing where you're going to be a rain for murder. Yeah, it's not illegal necessarily to not show up. However, an interesting point that kind of gets out what you're saying centers here is that, although this is a civil proceeding, violating the conditions of the order is a criminal violation. So that you could, you know, while the temporary is in effect, if you violate the conditions, you can be charged criminally for violating the RFA. But if the temporary goes away, because the person never showed up at the at the final hearing and it expires after 14 days. During that period of time, they can go ahead and do whatever they want, even if the condition said they couldn't and it wouldn't be criminal until they're served with that final order because during that gap period, there is no order in effect. Eric. At that point, does the court have the option of issuing another ex parte temporary order. That's an interesting question that'd be good. The, the, I would think that the answer to that might be yes, that if the, because it seems like you're just back to square one with the absence of the person. So, otherwise the court would be powerless and they do have the ex parte power in general so. Yes, I think so I think that's probably true. But that again, as with the first one, it wouldn't take effect until it was personally served. So you might still have that gap. Yeah, yeah. But I think, yeah, they probably could do another one. But if the 14 days past, you might have some time period in there where there, there weren't any conditions in effect. Yep. So, so anyway, yes, that's the, it's, it's the, the attempt to close that gap that is going on an age 962, because essentially the gist of what 962 says is, because you remember looked at the existing language says, if the defendant shows up at that final hearing they're deemed to be served. So no problem there with a time period when there wouldn't be any conditions in effect. So what the new language says is that the, if the court does issue that final order at that final hearing so again assume the defendant isn't going to be there. If the final order is issued, the temporary order shall remain in effect until personal service of the final order. See that. So what it says is that all right, that situation in which the defendant doesn't turn up. There may be a period where there isn't an order in effect because we've said statutorily that the temporary order stays in effect until that final order gets served. So, again, if they're physically present at the hearing, no problem, because the statute says they're deemed to have been served. But if they're not, then this proposal is to have that temporary order stay in effect until they are able to locate the defendant and serve the final order on him or her. I remember doing the deem to have been served recently. Am I correct? That we, we added that because of a problem where people didn't think they were served when the court ordered certain things. Yeah, your memory on that is probably right, Senator Sears. I don't think that I handled that bill. So I'm not remembering it, but perhaps. I think it's fairly recent. And I wanted to, my only comment is we keep changing the law regarding these. I think it might be helpful for the various groups that are interested in this, the network and defense bar and states attorneys and others to raise this issue at the sentencing commission level. I think that, or at least some level where there could be some look at our overall laws as compared to other states, because it seems like we're constantly trying to address a problem that comes up with this thing or that thing. And it's hard to keep track, quite frankly. I think it would behoove people to actually look at how are we doing this and other states, how do we handle relief from abuse and other domestic violence issues, because it seems like every session. There's another issue and oftentimes, sometimes it involves firearms. I know it did in the house earlier house bill. It's a constant change that we're making and I think it computes confuses those who are in law enforcement, defense, other places when it's constantly being updated. So, I don't know whether we put a study on to this or tack something in that would just suggest that legislative council do a review of other states and how they handle these relief from abuse orders. That sort of thing. Just to talk. I think I got it. The rest of the committee have it you did a great walkthrough. Maybe you aren't finished. I don't know. Are you finished? No, I was. Yeah, I suppose now that I think of it the one the one other little piece that's in there. We were talking about the what happens when the defendant doesn't turn up. There's also some language in there that got added. It might have been on the house floor. I guess that's the situation where I guess it happens and her Judge Greerson will be able to speak to this a bit more, but I guess it's a very rare situation but occasionally the plaintiff who has been seeking the order doesn't turn up at the at the final hearing and some languages added to be clear that if for some reason in the rare instance when the plaintiff doesn't turn up, then ordinarily what would happen is that the court would dismiss the motion, unless there's good cause not to dismiss it. Again, I think that's a pretty unusual situation, but they felt that they should include that language just in case. That's confusing. So can I ask a question. Joe is right after Senator Joseph Benning. I think Alice had her hand up first. Oh, I couldn't tell you both for Joe looks like he's in a courtroom so I got worried. It doesn't matter. Well, I'm just wondering. So with the new proposal and the order continuing ongoing and the person doesn't show up. Is there another opportunity for another hearing to occur so that the person can, the defendant can appear. Is that automatic? I guess Judge Greerson might answer that he's not deferred to judge Greerson on that one. There would be another another opportunity. And I can explain more when I testify, but if this, if the defendant has been served, but does not appear, If the order has not been served, the order would remain in effect under this legislation, but we would have to send a notice of a new hearing of a final hearing. So they would have another opportunity to be heard. If they have been served and do not appear. They would not necessarily have the opportunity for hearing unless they request it. So I'm looking at the list of bills that the pro tem has indicated we have to decide whether to take up as the Senate and this bill happens to be one of them. I am very nervous about two provisions here. One deals with the most obvious that I've never seen before and that is when a plaintiff decides not to show up. That the court might be in its own mindset deciding well we're going to issue an order anyway. That to me I've never seen that and maybe that's appearing elsewhere than I'm just not aware of it but that's to me that's something that's a major event in legislation. And I would really like to hear some testimony as to the pros and the cons of that particular issue. I'm going to pass a bill out in a situation where we're under the gun to get out and being told we have limited time to work but to me this is a major event in the criminal world, because you are effectively placing a potential criminal liability on a defendant where it doesn't even show up to make a complaint. And if the court decides on its own motion that it wants to impose this burden on somebody's liberties I have deep problems with that. The other question I guess I had was, if I'm looking at the language correctly. And by the way Eric you made a comment earlier about defendants sometimes not being at the temporary hearing my experiences defendants are never at a temporary hearing because they're not aware that the plaintiff has walked into a courtroom and has sought a temporary hearing from abuse order. I would say it's an extremely rare event and judge you can correct me if I'm wrong that a defendant is actually there in the building at the same time a plaintiff does that. In fact I've never heard of it but it's nice to say the majority of times in my experience has been that there is no defendant present at all when a temporary order is requested. I'm looking through this language and I'm trying to get a grasp on what the change is actually doing here. Sometimes a defendant is not present at a scheduled hearing for a final hearing, because they haven't been served. Sometimes they are not present because they can't be for instance they're incarcerated, and they just didn't get out of the prison to get to the hearing. I know those things are changing with this video conferencing and whatnot but to me all of this discussion means this bill I would like to have some testimony on to figure out the ups and the downs of what we're trying to do and I don't know how far dick you're you're anxious to take this particular legislation. I'm happy to hear from whomever you would suggest we hear from my obviously some but you know somebody like the defender general but if you've got other suggestions I'm happy to hear from anyone I actually I'm wondering about that particular amendment that allows the if the plaintiff fails to appear. I suppose it's maybe Eric or somebody can correct me during testimony but I suppose it's designed for those cases where the plaintiff is so intimidated or so worried of further retribution if she or he doesn't appear. And this kind of you know deals with that so that they're not to blame. I don't want to have to be the blame. And I've heard over the years and talking with states attorneys that sometimes they lose the victim, because they're afraid to testify against their abuser. I understand that I don't know if it's constitutional. I thought you had a right to confront your accuser. I would question that Eric if you have a comment on that. I mean obviously I, I could ask Judge Greerson but then he probably can't tell me what's constitutional. It works for the judiciary that determines what's contributed. If only we could ask for advisory opinions but we can't do that. It would be easier if we could ask for an advisory. In your, in your learned experience, is this a constitutional amendment? I think it's probably okay because the, while there's certainly a right to confront your accuser that in this, and we're, this is a sort of imagining a case when the plaintiff doesn't turn up at all. And they could essentially be viewed as waving that right in that situation. I have an interesting backstory though on where that sentence came from. It's not necessarily where one would think. As the bill was about to come out of the House Judiciary Committee and this is all happened on the record in public so I'm not talking about anything that isn't, you know, we could go back in the YouTube and watch it but the, that sentence was not in the bill. It was only the first and set the first and third sentences. There was nothing in there about the plaintiff's very, very to appear. But Matt Valerio, Defender General, was the one who caught the issue that Senator Benning you just raised that well what if, without that sentence he sort of he thought that there was even more of a possibility that the court could go ahead and issue the order because if you read the language literally, they would say well the order remains in effect and even if the defendant doesn't show well he said well that seems to be the case that the order would automatically remain in effect, even if the plaintiff doesn't show. So he suggested trying to close that possibility and to structure it so that if the plaintiff didn't show, the court wouldn't be required to go ahead and issue the order anyway. What would happen in the ordinary course most cases would be that the court would dismiss the petition and I think, I can't recall exactly how the language of absent, because the way the conclusion was the court would dismiss the petition unless there was good cause not to sort of to allow for the occasional situation I think even Judge Gerso might even to mention this one, like, say the plaintiff couldn't make it because he or she was in the hospital, or something like that if that was the reason maybe that would qualify as some exigent circumstance where they might issue the order but that was a discussion that Matt was involved in so he'd be a good person to talk to going further to sort of explore that issue a bit more as you were suggesting Senator Benningey. I think he would also be a good witness on that. If I could just sorry, yeah, please put in. You know, you're dealing with a situation where you might have a defendant who is in a, you know, deranged state who says, if you show up at that hearing at that time I'll kill you. And the plaintiff stays away from the hearing because they're justifiably afraid of showing up. This language would, as I read it, would allow the court to go ahead. If it knew of that, is that not right judge. I would have to disagree with you, Senator. Okay. And I'll be glad I can either talk now or later but as someone mentioned, Senator Sears and Eric agree, these are civil proceedings. And in the normal course of events, if a party does not show up at a hearing in a civil matter, they're defaulted one way or the other. In other words, the defendant doesn't appear in assuming there's been service, a default judgment be entered against them. In the normal course of events in a civil proceeding if the plaintiff has filed a motion or hearing request and they don't show up, then the request is denied for failure to appear. And so this issue as Eric indicated came up. It was not part of the original language or original bill. It came up in the course of discussion in the house. What I indicated, it's not up to a judge and read an affidavit and it may be a terrible fact pattern. In other words, extremely serious injury as a result of this. That's it but if the plaintiff doesn't show up and we have no information as to why a plaintiff can show up. As a civil proceeding, we would dismiss the petition. Without any information, it would be dismissed. What this language I think was designed for was a situation where the court had information explaining why the plaintiff was not appearing. That was my example I thought. Yeah, well, except you put it in terms of being afraid to testify and that would not be a reason. In other words, what we have found quite frankly with COVID is a lot of these hearings are now done in a hybrid fashion, meaning there may be the plaintiff may be present but the defendant is on the phone or the defendant is present and the plaintiff is on the phone. So we have really changed these procedures. I would expect that would continue but the plaintiff has to offer testimony to support ultimately the request. So if there's a physical inability to be present. Like being in the hospital. Right, exactly. And that's the example I gave to Eric. But could I could I just ask let's let's assume we exit the COVID emergency and we're back on a normal footing in terms of needing to physically show up. If someone who is not the plaintiff came to the court at the hearing and said my sister my mother can't be here today and produced a written threat from the defendant saying I will kill you if you show up at the hearing. I think the court wouldn't deem that good. What is the language. Good car findings for good cause. I think what would happen under those circumstances, the court would have to have a hearing on that in other words they just wouldn't accept the note there would have to be some kind of inquiry of the person providing that information and the court would have to make a decision whether they, whether they accept that testimony or not but ultimately. And that's the the crux of this language which goes back to Joe's point. It puts in the hands of the court. What what good causes, and it allows perhaps disparate readings of that across the state. So you might have one judge. No. I agree with you anytime you put in a clause that says for good cause that God cause is not defined and it would be on a case by case basis so one judge receiving that information to describe may say yes I think that's good cause and I'm going to continue the temporary order. I'm going to grant a final order that would still be a hearing at best it would be will continue this for whatever a week or two weeks a short term because as Eric said, these are supposed to be summary proceedings. And so, at best that might get somebody continuance, because ultimately they're going to have to provide the testimony to support their request. At the same time another judge could read that and say no. This I don't find this to be good cause and if the plaintiff can appear today to testify. Then we'll dismiss it. You know default default becomes. Sometimes we don't know the reason why a party doesn't appear. I mean a defendant could appear, could be served and not appear. And we grant the order. The plaintiff may not appear and we dismiss the case. Either party, as a result of the default judgment can always file a request with the court to reopen the decision and give an explanation of why they could not appear on that particular day. It's not not necessarily a final decision. Well, can I ask, I'm reading this language. It looks to me like if a plaintiff doesn't show up and a judge decides there's good cause, not to dismiss the petition that the judge could actually issue a final order. I'm not really misinterpreting what I'm reading here. I mean it looks as if once the judge decides the petitions going forward, what is to prevent the judge from issuing a final order at that point, because they don't have the testimony in front of them to grant a final order. Well they have the testimony that has been filed by way of a petition. The petition is still alive. What is, what does this language do to say wait a minute you can't have a final hearing, unless the plaintiff is actually present because the way I'm reading it it looks to me you can make an argument that, in fact, if the petition is still alive because the court has said there's probable cause. What's the final hearing that you're now at you're not continuing a temporary order, you're at the final hearing if the judge decides, I think what I'm reading here is perfectly good enough for me to issue a final order. What's to prevent that from happening. Because I don't think they have the authority to issue a final order unless they take testimony. When we when we hear a final hearing. I don't want to say it doesn't make a difference as to what's in that affidavit but we rely on the testimony that's presented during the hearing, which sometimes is inconsistent with what has been presented so there's a judge could not issue a final order without the plaintiff there to offer testimony. I think you've raised several good points Joe and issues that we need to deal with. This is no longer a simple little bill. Thank you. So, I think I would like to hear judge Greerson's testimony on the whole bill. I think I would like to hear and bill and Ingrid Jonas, and at the next meeting we'll have Matt larry went to talk more about the, what's behind this particular. When I was searching for witnesses. The legislative website said there were no witnesses in the house. And I think that was a clue by the seat of our pants here and Peggy and I and putting together the list of witnesses certainly I, you know, so I want to explain that too. But I think it might be helpful to hear the whole with the various witnesses have to say and then come back to how we resolve this issue of having a defendant. Excuse me if the plaintiff is not present, how do you deal with that. My understanding the original bill, the only thing they wanted to do was deal with when the defendant isn't present and how do you deal with it that was seen as a gap in current law. So somehow in closing that gap that looks like Matt wanted to make sure that he didn't have a reason. So anyway, let's, is that okay. Yeah, I think it's very important to know that when an affidavit is filed initially by a plaintiff in a temporary situation, 999 times out of 1000, the defendant has no idea that that's actually happened. If the court order gets issued, and it is served. There are restrictions placed on the defendant's liberty interests I'm going to call it. For instance, you can't be 300 feet within this particular plaintiff. The individual violates that term, while it is now a civil proceeding, they are now charged with a crime of violation of an abuse prevention order. So we've got to walk really carefully through the examination of why this language came to be. I understand and appreciate the need to fill in that gap. If a defendant is not served for whatever reason. I'm really scratching my head that we suddenly vest the court with a power that to me is not clear as to whether or not the mere power is to extend the temporary order, or actually go ahead and have a final hearing on its own. And that's disturbing to me but I'd really like to flesh out what brought all this to begin with. Is there an easier way to correct the gap that we need to fill, then have this set up a potential disaster for somebody who has never actually been to court yet, but has had these restrictions placed on their liberties. So you could have a case where the defendant is not present, nor is the plaintiff. It's disturbing to me that the court could take on its own judge to continue in order. How will you deal with that since you're the next witness. You are the judge, you're on the bench, have a case. There's been a temporary emergency temporary RFA. The defendant is not present, nor is the plaintiff. Good morning everybody. For the record Brian Greer some Chief Superior judge with the scenario just outlined by Senator Sears that that petition would be dismissed. If we don't have any information as to why the parties haven't appeared whether plaintiff or defendant plaintiff doesn't appear and there's no explanation that would be dismissed. So why do we need that language. Well, let me go back a little bit. You're right, Senator. Let me go back even further and say that Eric did do a good job of outlining this bill in the in the reasons behind it. The bill was originally intended to just cover this gap period. And I'll explain that also the language that it's now under consideration. It's a rose out of the house I don't even remember who first raised the issue although it may have been it may have been mad I don't remember but it certainly wasn't. We didn't raise it the judiciary didn't raise that it didn't see that as an issue. I don't recall who did but that that what's in front of you now of course is the house's remedy to that issue. The bill started long before the session long before coven. The discussions among individuals involved in in RFA proceedings the judiciary domestic violence to address this this so called gap and the gap that we're trying to address is when the temporary order is issued and I would agree with Eric as well as Senator Benning. These orders are issued ex parte the defendant does not have an opportunity to be heard. And that's why the orders do not become have any effect on the defendant and lesson until they're actually served with the order. And under the current statutory framework. The order is issued. It does have to be heard within 14 days and most courts get them have a have a regular scheduled RFA day in every court. When the orders temporary orders are issued we already know what the hearing date is and the notice with the order would include a notice of hearing for that final hearing. And also language that says this order will expire either at noon on the day of the final hearing or at 12 o'clock midnight. In any event it says right in the order the terms will expire on that day. And if the under the current framework if the defendant has not been served. We end the plaintiff does appear and still request the order. We would issue a temporary another temporary order and send that out for service. So now you've got perhaps two orders out there for service. And but that the original temporary order has expired. So although there are two orders out there for service there is no order in effect. So the original discussion. As I said, began long before the session was to simply address that issue by the language that says the terms of a temporary order will continue until dismissed by the court or until a final hearing. Or until a final order is served under the original bill language. That's all that was intended. And this would allow the order to be issued. If the defendant is not served the temporary order would continue in effect and we would just have to send a new notice of hearing to be served on the defendant. I think I asked about the opportunity for hearing if the defendant has not been served the temporary order would remain in effect. But we'd have to send a notice new notice of hearing to give the defendant that opportunity for here. On the other hand if the defendant has been served and elect not to appear at the hearing. We would still the court to issue a final hearing, final order, excuse me, to be sent out for service, but it would also allow the temporary order to remain in effect until that service is made. That was the intention, going into the session in the original. Eric if I've misstated that tell me but that was the, the original language in the bill somewhere in. In the hearing process this issue came up about what if a plaintiff doesn't appear. And that's the language that's now in the bill is the result of that discussion. I would disagree with Senator Benning, respectfully by saying the court could not issue a final order based on a temporary on an affidavit. And so we would not issue a final hearing until we've taken evidence to determine whether or not a final order is appropriate. And so we would not issue it. The reality is that with a civil proceeding, I would argue that even without the language that is now in controversy, the court is sometimes confronted with non appearance. The court is now and we have to make a decision by our inherent authority, how to, how to address non appearance. But if we don't have any information made available to us, a party just doesn't appear. And I'm talking now the plaintiff. The motion or request for hearing would be dismissed. We don't have a basis to continue it. Could I ask a question about that? Sure. I just want to make sure I'm understanding you correctly. So, is it your testimony that the court could not under any circumstances, order a final order, or that they shouldn't and tradition and Norms would. I don't think they have the authority to issue a final order if the plaintiff does not appear. Okay, thank you. And if that was the issue that was concerning to the committee, then I would have no problem in you adding that language to make it clear, but I have no. No qualms in saying that the court would not have the authority to issue a final order based on an affidavit filed. I think that's a good connection with the request for an X party order. It seems to me an easy fix is just to add a phrase here that says, if the court does not dismiss the petition for good cause, it may continue the temporary order. Leave it at that. Because the very next sentence talks about a final order being issued. And to me that implies that the court can go forward on a final hearing. Let's. So, I think if that's the concern and you could add that language, I court would not issue a final order but if you think that language creates that possibility, then that that would be the remedy certainly there was certainly When I was asked about this language certainly wasn't my intention or any, any thought that that would give us the authority to issue a final order. As I said, a few minutes ago, even without this language, I think the court always has the inherent authority to decide under what circumstances the case will be dismissed or, or continue. Without absent any information, just failure to appear is going to result in a default one way or the other. There is a on our judiciary website, a judiciary committee site. There was a memo from the Vermont Federation of Sports Clubs Sports Club, as well as from a number of people, two of whom are future witnesses this morning. And I would note that it doesn't mention this idea of the defendant, not the plaintiff not being present as I read through the memo. I think, you know, I recall and Eric again can correct me. Eric, when this issue came up before the house Eric contacted me and asked me what I thought and I said, Judge just doesn't have the authority to continue or continue a order that's in effect, just because they feel that the, the, the facts as stated in Napa David they feel are whatever term you want to use horrendous serious. I don't know why the plaintiff isn't here but boy these are serious allegations and we're going to continue to the order. We have to have a basis to do that I have been in situations on the bench in these proceedings when a plaintiff or party has been unable to be physically present. In the hospital. There are any number of other reasons but I'm saying without even without this language, having that information would give the court the inherent authority to continue. We're looking at this as if this is the only avenue. I'm assuming if the per minute that the defendant, excuse me, the plaintiff may not be there because they're in the hospital because of a severe beating by a defendant. I don't think that we would have a criminal case going on at the same time that would place conditions on defendant. I mean I've seen states attorneys prosecute cases where the plaintiff no longer wanted to testify against their abuser. And many of those and so it's not that. So I'm not sure what problem this actually solves. I'm with Joe. Yeah I'd like to go back judge to the days when you and I were both practicing family law. I'm sure you'll agree with me that there are some occasions when a plaintiff will walk into a courtroom and embellish a story in order to gain tactical advantage in a subsequent custodial process. I'm not saying that that's common, but it does happen. So I have to look at this from all angles that I possibly can and in this, the temporary order places restrictions on a defendant's liberty interests, no matter what they are. I'm really anxious to hear from a lot of witnesses to talk about this and Dick when you raise the issue of the Sportsman's Federation. I'd be very surprised if they weren't thinking about this particular provision that a judge would now be vested with the ability to say that. My comments had nothing to do with that, with that provision regarding when the plaintiff didn't show up. I'm supportive. I think I'm not even sure that they were aware that that was the amendment happened. Eric said it was on the floor. So people who have commented or maybe basing it on the bill as it passed out of house judiciary. I think subsequently, subsequently, I don't know particularly which group, but I know I did have a conversation with with Bill more about it. I don't know. Anyway, my comments regarding this, this provision where the plaintiff fails to appear and not the other parts of the bill which I support. I still have questions about that section. Senator White has been silent. I have been. Surprisingly, but so I guess my question is, we're talking about two different kind of aspects here. Do we, is there agreement on the first one about the, the, this time gap or not. Not being present. Yeah, I'm getting confused here about. Do we agree on that or not Joe. Well, if the defendant is in the courtroom at the time of the hearing and is there and subsequently is not handed documents. I would certainly agree that the defendant is currently on notice that there's an order against them I have no problem with that. I'm a little bit unclear yet as to what the thought process is for why the language is necessary for a defendant to know how to articulate this properly. I'm not going to necessarily disagree Jeanette but I'd like to hear testimony on what the rationale was for the language that was being put in the red flag for me was really the plaintiff, not showing up. I do a very long story about a case that I had where we literally had a woman walk into the courtroom, got custody of the kids pursuant to a relief from abuse order, took off for Wyoming, and never showed up for the hearing. And my guy ended up having the order overturned and then had to go through the process of employing sheriffs out in Wyoming to retrieve the kids. It was a rather famous group of people that led to another issue and I don't want to bring it up in a public setting right now. But the bottom line is I've seen cases where things were embellished for strategical purposes. So, vesting the court with the authority to maintain a temporary order in place with the plaintiff not showing up is something that really has raised a red flag for me. Right, that's why I wanted to go back and to talk about the, if the defendant doesn't show up. Is that, are we okay with with that and then the plaintiff not showing up is a different issue and I don't I think that we're conflating them here. Right, I think the defendant has to be served one way or the other in order for the order to be effective on the defendant. If they're not present in the courtroom, that's fair game. They're on notice. If they're not, you can't remove somebody's liberty interest or place restrictions on them without giving them notice that that's happened. Well, but they have been served with the order, the temporary order, Senator. Fair, fair game. Yes, fair game. And that's why I'm saying the original part. You're continuing the temporary order, right? Exactly. You're not adding to it. You couldn't add, you couldn't add a new requirement to the temporary order. You couldn't add it to the temporary order. You could issue a new final order, but that wouldn't be effective until it's served. That was the original intent of this legislation. So, like, the question I would have is, when you issue the temporary order, you put on there that if you do not show up at the final hearing, the temporary order will continue until you do show up. Then there, their notice that, that it's going to continue. I don't, I don't guess I don't see such an issue there because they know they have to show up. So anyway, that, that I want, I want to kind of want us to separate the two issues. I would really like to hear from Sarah and Bill Bognac before we go on to the next issue and take a break. If we could. Thank you, Judge Grison. Thank you, Senator. And I think it's the second part of this bill that's causing the confusion. Originally, I think everyone was in agreement with the first part of it. And we can survive. It's not unusual for the other body to take a simple little building complicated. I'm not going to comment on that. I'll just close my microphone. Let the record show that the judge agreed. Record show the judge has appeared and he does not agree. Sarah, please. Thank you for being here this morning. Yes, good morning. It's good to see you. And thank you so much for the opportunity to testify. Senator Sears. Your memo is on the website. Yes, just for the record, Sarah Robinson, deputy director at the Vermont network against domestic and sexual violence. And Senator Sears, I really very much appreciate your observation and suggestion to kind of take a comprehensive look in the future at the relief from abuse order statutes generally and how other states have their statutes structured and that would very much be something that we would be open to. But as Eric and the judge have highlighted, the intention of this was to fix what is a long standing. But in our estimation was a very simple fix that had broad support to this time gap when a defendant doesn't appear at a final hearing. And although this is has been a longstanding issue for several years. The pandemic and COVID brought this into focus in a different way. And so I thought I'd just talk a little bit about that. I will speak to the issue of the plaintiff not appearing as well. And then I'd be happy to, to answer any questions. To reiterate the, the purpose of the proposal is really in those cases where the defendant has already been served with a temporary order so they have been personally served with it they are aware of the conditions. They're aware of the hearing date. They do not appear at the hearing simply extending the terms of that temporary order until a final order can be served. So I just want to be very clear that our intent is not at all to hold a defendant to conditions of an order that they are not aware of. It would only be for a temporary order that they are already aware of and are already operating underneath. So, as I mentioned, there's, there's several reasons why we believe this change is especially important now and I just wanted to highlight that. So, the statute does require that in order for an order that has been issued by the court to actually be in effect. It does need to be personally served on a defendant and personal service of orders is inherently risky. And unlike, you know, the court process where there's some kind of structure around social distancing practices certainly in during the pandemic service of orders requires unannounced physical contact in homes or workplaces. Law enforcement officers often have limited information about the defendant's health status or anything else really happening at a home. This is prior to the pandemic but certainly came into focus during the COVID-19 pandemic as well. And in addition to protect victim safety, our current statute, which we very much support, it forbids law enforcement officers from using any methods of service that provide any kind of advanced notification to the defendant. So they are showing up unannounced just for that temporary order. Alice, can you take over for a minute please? Thank you. And some defendants do intentionally evade service which creates this gap in protection that can last for days or weeks. And locating a defendant in order to serve a final order can require marshaling additional law enforcement resources that I'm sure the sheriff can also speak to. While this gap is in existence so the temporary order has expired, the final order has been issued, the court has found that there's reason to issue that order but it has not been personally served. The defendant can really violate the terms of the temporary order with impunity during this gap. And many of the things that a defendant may do to violate the terms of the previous order, it may harass or intimidate victims, might be calling their phone, violating distance requirements of stay away orders, etc. Those things may not rise to the level of criminal behavior on their own and defendants are able to really take advantage of this gap in protection for victims to violate those terms with impunity. And the other kind of COVID-19 item I wanted to bring to your attention is that currently as the judge noted many relief from abuse hearings are occurring by phone where either one or both parties are participating in the hearing by phone. And the current statute provides that if a defendant is present, they are deemed to have been served. This has not yet been challenged. Advocates are concerned that there are potential legal challenges that may arise from defendants arguing that their participation in hearings remotely or by phone should not automatically mean that they are present, therefore deemed to have been served. So we do think that that's a timely issue that would be addressed with this proposal. So I just wanted to circle back to this issue of the plaintiff not appearing. And the way that both Eric and the judge recalled that this language coming in is also how I how I recall it is not at all part of our initial proposal. From the network's perspective, I can just say we recognize that this is a civil process and as such, it is an order that needs to be driven by and pursued by the plaintiff. And it is our full expectation that if a plaintiff does not appear at a final hearing that they have in the except for very particular extreme circumstances that they have chosen for the moment not to pursue a final order. I would say across the board. Again, except in very rare circumstances, those proceedings are dismissed by the court. And so we would be really fine with language similar to what Senator Benning offered. Once we're able to kind of see it, but just wanted to reiterate we agree with the judge the intention was to be able to continue a temporary order, not issue a final order that the court could continue the temporary order in rare cases when the plaintiff is not present because for example they were hospitalized. The court had the availability of that information. But again, I just wanted to clarify, but we also do not believe and would not are not advocating for the court to have authority to grant a final order if the plaintiff does not appear. So, so I think that was all I wanted to mention but I'm happy to take any questions that you all might have. Senator Benning. Sarah, thank you for your testimony. Do you happen to know I was going to jump into my files to see if I could find a relief from abuse order temporary from abuse order but do you happen to know whether the temporary order has language in it that directs the defendant to the date of the hearing and says if you don't show up court can issue orders against you or something to that effect. I would have to go back to the statute but what I do know is that, and if Eric is still on my recollection is that what is clear is that the temporary order is in effect until it must expire within 14 days. So I think that that is really the only direction and I can say that generally on the temporary orders themselves, you know there is the date of the hearing, and that date of the hearing serves as the expiration date. Often of the order itself. Eric, if you're still listening, I don't know if you can leave in and find one of those potential orders but I'd like to recall what the language is about it. I've been looking at the the statute because the statute does. I don't have a I don't have a form order, but the statute does say in a couple of places and I'm looking at Sarah 1104 B and D. Some specifics that have of particular items that have to be in that temporary order you know some some in one case, actual language violation of this order as a crime for which you, you know maybe imprisoned etc. Every order issued under the section shall contain and it was a number of things, you know the final the date time in place of the final order and the fact that the defendant has to appear. I don't know anything about this particular point that we're making that that if you if you don't appear. You know the consequences of that but but if you did decide to include that there certainly is an easy place to put it in the sense that you already have some provisions about what has to be in that order. I'm reading that as well every order issued shall state the date time in place when the defendant may appear for modification or discharge and then it it says the opportunity to contest shall be scheduled as soon as reasonably possible, which in no event shall be more than 14 days. I don't have my files are in my office I'm not there but I will get a copy of the temporary order. So I'm just hearing what Sarah just read and it says may appear. It seems like that would be misleading to a defendant. You know you may appear or you may not. I mean does it really read that I can I can respond to that I mean it's a simpler seating so they don't have to appear. It's their choice. As Sarah indicated that a violation of the order could be a criminal offense, but we can't we can't order someone to court it's it's because the nature of the proceeding. It's a civil proceeding they're free to appear or not appear. Seems like it could be misleading to people. I hear what you're saying but it seems like he's tell somebody lay person well you may appear blow it off if you want. I think that that provision that if you don't appear the temporary order will continue until you do. I mean something like that that seems to me that takes care of it but there's no question, depending what the legislature does with this bill will have to modify our, our forms so that they will reflect whatever the current law is. Yes. I have to I have to. Are we going to take a break at some point because I have to. My plan was to take a break a half an hour ago. Okay, because I have I have something that I have got to do within the next five minutes or so I would suggest that this was Sarah that we take a break break and then come back and hear from Bill. On the actual when you can I just can I just ask, can I just ask one question. If the judge stands the temporary order is that for 14 days or is it indefinite judge you muted. Sorry, if, if under any circumstances we issue a temporary order. Again, because these are summary proceedings will continue them for a short time that it's not uncommon when somebody comes in for a final hearing that the plaintiff or the defendant for instance will ask to consult with an attorney. They will continue a temporary order for two weeks to give them a chance to do it. It's a very limited time. I will tell you that I have been in situations where it is extremely the law enforcement is having extremely difficult time to find someone. So after a couple of short continuances we may continue it for a month let's say, but this legislation would address that issue. And have one order that's remains out there, and there's not a series of that's what we're trying to avoid here series of two or three temporary orders that can be confusing anymore. So, there if it's continued it's a short duration. So, let's take a break and 11am back at 11 here from Sheriff poignac, and then we can hear from the H hopefully vote out h560 something. The license suspension bill. Okay, so let's be back here at 11. Thank you for your audio and video everybody do what shut off your audio and video. Okay. Thank you. Senator white is back with us. So, Sheriff, welcome to Senate judiciary remotely. I'm very good. It's pleasure to be here and good to see you all. Unfortunately, I'm having internet connections for my video so it's Chelsea. You can see us but we can't see you. Correct. So for the record Sheriff bill boniac. Orange County. And are you the president of the sheriff's association this year. I still am yes. Okay. I'm not going to, I'm not going to rehash everything because we, the whole group talked about a lot. I just want to point out a few. I think reasonable key peer key points to this. When they talk about the temporary emergency orders, you know when we're not in in any shape or form. Talking about a final order. I just want to make that very clear. But the max 14 days. You also used Eric use the word. A reasonable period, which I think is a key point here. So, once the final order or once the temporary order has been served and a final order, or the final hearing schedule, and the defendant does not show up. As long as the plaintiff wants to continue the order, then there should be a new notice of hearing to extend the temporary order until until a final hearing takes place. And where we see the gap. And I believe Sarah could, you know, even. Even the judge can testify to this. The gap is where right after the 14 days is over. That order is removed from our system. So, just for argument sake, if, if, say, the defendant shows up after right after the court hearing is scheduled. So in other words, he shows up at the end of the day. And he says, I'll be back. You know, it's too late today, but we can hear it here to another day. You know, the judge could issue another order but the problem is, right after the 14 days that order is removed from the system and you had to put a brand new temporary order in place. So if you just had a notice of hearing to extend the order that protection will still be in place. Do you have any questions on that when I'm, when I'm getting that. I think, yeah, I don't think so. Any committee members with a question. Bill. Have you had situations where the order, the temporary order was in place. The defendant didn't show. And the temporary order went away. And you had, you know, you couldn't enforce, for example, the no contact provision or vision to stay away from somebody's home or even mature in a fire. Would you have to mature in their firearms? If that was part of the original order. If that's part of the original order, we would. Yes, we had those, we had those circumstances already happened. And that's what I think brought this forward is that that gap. Where the 14 days is it's over. The order is not in place anymore. And then a new hearing is scheduled. However, in that timeframe, there's no protections for that victim for that point. I know you talked about the, you know, what if the plaintiff doesn't show up. I'm talking about where the plaintiff wants that order to continue until a final hearing can take place. Thank you, Bill. Other questions for Bill. Bill, any more testimony on this tool. No, you've covered everybody covered everything quite well and yeah, I just want to make, you know, make sure that you know you're not talking about a final order here. The temporary, you know, once the, once the defendant was served with the temporary order and does not show up for the final. And those 14 days are gone. But the victim, the plaintiff wants to continue going forward. So then the judge could issue a new order, but until I serve that victims left without protection. There could be a gap of a day, two days, three days. You don't, you just don't know if the defendant decides to, you know, avoid service altogether. We still be something in place. Okay. Any other questions for the sheriff. Thank you very much. Extremely helpful. Final witness for today is a great on this bill is Ingrid Jonas, the major, a major in the Vermont state. Please. Thank you, major. Thank you for joining us. Thanks for having me. I'm in that awkward situation where I've missed all of the previous testimony, except for when you. I heard Sheriff Bagnac. So I hate when I, I'm not able to attend the whole thing out of concern that I'll be redundant. Well, let's not worry about that. Okay. Not worry about that. I will say I will highlight for you that the major. There's been a major bono contention about an amendment that was added at the last minute. That provides for the possibility. If the plaintiff fails to attend the hearing that the order could, the judge could decide to issue an order. Okay. If neither the plaintiff nor the defendant are there. You still could have an order. Okay. I think that's a major disagreement between, I would say disagreement or level of concern about, about the bill. Okay. I might need to just give that a little bit more thought or I'm happy to answer questions on that I didn't. I don't know if I wasn't looking at the right bill, but that didn't stand out to me. I more wanted to just come out for the record. Okay. Thank you. Thank you for joining us from on state police. I am a division commander at the rank of major, but my division or section of state police is called the support services division. I want to just say out front that VSP support the changes in language put forth in this bill, because we see it as helpful to survivors of violent crimes and also helpful to law enforcement. The reasons for that is a clear that this would feels like it removes an unsafe incentive for defendants not to appear for final hearings and it eliminates that gap that we've all that we're all aware of and I'm sure has been spoken up today. I will say that defendants in these cases can be difficult to find sometimes there's reasons I'm sure emotional and practical and reasons why they tend to evade or avoid service and this would help alleviate some of that we when I provided testimony last time on this I remember some questions around or some concerns around. If it would make it so that law enforcement would lower their priority and serving these orders and that is not the case. These are high priority efforts to get these orders served, they're usually monitor quite closely at the barracks level and they're the first thing barring an emergency that the troopers are sent out to do on their shifts. But again, this addresses that concerning gap. When a defendant does not show up for the final hearing. I think that says it all. I'm hoping that I'm understanding the bill correctly and that it would extend the temporary order until the final orders been served meaning there would be no period where the victim is unprotected. And therefore the intentions of the court are not allowed to be ignored by the defendant. And again as I said earlier it allows us as officers to have some additional flexibility and time to serve the order in a way that is most efficient. And it's also sort of amplified during coven times in that. You know we are trying to be careful around our contact with the public, you know, obviously weighing out safety needs but this gives just a little bit more control and flexibility in when we can serve those orders. I'm not leaving anybody hanging is what I mean. I think those are the main highlights I wanted to point out, we can't, I can't see anything wrong with this bill. There is of course I'm sure that there would be some people who feel that there are due process issues for the defendant, however, that is in the control of the defendant so. There's also the issue of whether, you know, if there was a more restrictive order, if the temporary order was more restrictive say it disallowed contact with children, and that restriction was relieved during the final hearing. Obviously that restrictive condition would still be in place. But that is essentially in the control of the defendant by not appearing. And those are pretty much all of my thoughts and comments I'm happy to answer any questions or clarify. If that was not clear. Anybody. I think it was clear. Okay, didn't seem clear on this end I will tell you. Often. We appreciate your testimony and thanks for taking time and thanks for all you've done and do during this pandemic particularly your division of the Mont State police we do appreciate it, we may not say that. But we know how difficult it's been. Thank you. I appreciate that it's nice to see everybody and let me know if I can be of help. Certainly will. It's been in one of those times was hard to believe you're living through it. I already have grandchildren so it's not something I'll be able to tell them but my grandchildren will be able to tell their grandchildren living through this pandemic. Thank you so much. I think this wraps that up this issue of this bill and we'll do it next week unless there are other people besides Matt Valerio that you would like to hear from. Okay, good. Eric, thank you very much. Thank you.