 So welcome. Good afternoon. This is House Judiciary and we are continuing our consideration of S 114 that we understand that the Senate Judiciary has voted on, but not yet. We are trying to get up to speed and understand, understand it and judge, welcome. Yeah, sure. And for those of you who are testifying today, representatives alone did send a memo with some of the committee's questions so if you haven't had a chance to review that I don't know if you can but but we do have a number of questions based on just going through the walk through so I will turn it over to you your honor right now. And thank you. Thank you. Thanks to the committee for inviting me for the record Brian Greerson Chief Superior Judge. I have on another screen. Draft 3.2 of S 114 is that when everyone's looking at. I did not see a representative of the lawns email. Did that just was that sent. Not long ago. About 1230 left 1230. Let me see if I can find it probably didn't have any questions for me right. Oh no not at all. Okay. So, um, how would, how would you like me to start by answering trying to answer the questions or going through the bill. Well, I think for some general background as to how my understanding is that that the language came from the judiciary. And so, so I think a just background background why why these provisions are are needed. What they would address. Thank you. Okay. So the bill, if you will, was probably started seems like a long time ago but it was. A long time ago. I think it was a long time ago when myself were invited to appear before I think it was joint rules on a Sunday afternoon. Not mistaken. And it wasn't clear what the committee, that committee was looking for, but what we attempted to do by way of memorandum to that committee was to outline some of the issues that we had seen developing very early on in the process. I'm sure all of you know, enacted administrative order 49, which essentially limited the types of hearings that the court could schedule essentially all emergency hearings and then listed those that fit in their opinion, fit that category. I also gave some leeway that would allow filings to come before the local judge. And if they did not appear to fit into the categories that the Supreme Court had listed they could refer them to me, and I would, I wouldn't be deciding the merits of the issue but I would decide whether the allegations rose to an emergency level that I could then direct the local judge to hear. So that's how we've been operating for the last few weeks and we're also operating with substantially reduced staff in every court every court is still operating but on a very limited basis, and the staffing. The staffing is really what's driving the ability to work, even when these emergency requests come in the first question to be asked, do we have staff available, or when do we have staff available to schedule these proceedings staff levels change in the courts from day to day. Terry Scott of Chief of trial court operation has a daily check in with all of the courts to determine what the staffing is and that that you know that's really driving a lot of what we're able to schedule or when we're able to schedule it. So first of things we're hearing of course are incarcerated individuals either by way of arraignment, all of which are being done via video. Now as far as I know. Bail reviews in juvenile proceedings that we're hearing emergency request for change of parent child contact, same applies in the domestic docket. We're still hearing RFAs, most of those are done remotely, if someone does not have remotely by telephone, if someone does not have access to phones, then they will still come into court to hear those. But essentially, the bill was what we were seeing in the courts and for instance, the issue, one of the early issues identified, or what do we do about evictions. And there is a bill as I'm sure you all know in legislature now to put a stay on evictions and foreclosure proceedings. So the piece that you see in this bill that came from the judiciary was essentially a recognition early on that at least the Supreme Court was not going to impose a stay of evictions. They did not see it as their function their role and believe that the legislature and or the executive branch should impose a stay if there's going to be one. So this was a very early piece, at least from us saying well if there's no stay. This is something that would allow the court some discretion on these rent escrow orders. For those of you that don't know when an eviction proceeding is filed and I'm talking a residential eviction. The earliest hearing is what's called a rent escrow hearing, meaning the landlord and tenant come to the courthouse. If the tenant is going to want to remain in the property, they have to pay the rent going forward. We defer the decision on any back rent that's accumulated. The rent escrow orders allow them to remain in the property. And so this first section of the bill was a recognition that under the current circumstances. Economic and public health individuals may not be able to pay the rent as ordered so it gave the courts and flexibility that otherwise didn't have and really the only change there you'll see is when it changed one word. In other words, instead of saying shall pay it said may so the court could entertain that that's essentially where that comes from. The other section to execution powers of attorney and section three relating to deeds really is a recognition of the fact that with the governor's order on stay at home stay safe. Getting notary publics or the availability of notary publics, the meeting of face to face in order to have a document signed before notary public, both those sections. In other words, they weren't in our original memo these came, some of this bill comes from other sources, but that's the reason those are there to address the issue of the, either the lack of notaries, people who are notaries not wanting to perform that role, or doing it in a way that would allow for social distancing. And for this part of the courts request judiciary quest, and that is driven by the fact that under the current rule 43. The presence of the defendant is required during certain or most proceedings, and this was a recognition. The judiciary that as this pandemic unfolded, we now have available video available in all of the Department of Corrections facilities, and through the major courts Wyndham Windsor. The Orleans, Washington, Bennington, Rutland, Chittenden and Franklin counties and we're already had the ability through rules to allow for rule five or the initial proceedings via video, which would lead to arrangements. But it quickly became apparent that attorneys in the courts saw an avenue of conducting other proceedings that we hadn't done before, for instance, plea changes via video sentencing. And these were all uncontested matters in other words we weren't going ahead with contested sentencing but the best example I can give you is someone who was incarcerated, who had a pending charge that by agreement of the parties. This individual was not necessarily going to be released, but the fact that they were still on a detention or detainee pretrial status. They weren't allowed to participate in certain program. And so by allowing a sentencing to go ahead via video. If a person could enter the plea be sentenced and not have to leave the facility. I'm sure you've heard testimony from Department of Corrections or will that one of their biggest risks is having individuals come out of the facility and then go back in right away. So this allowed us to do certain things but it required the defendant to wave personal appearance. And with the consent of the defense attorneys proceed this way, but it's not provided or that that's not provided for in the current rule. So this rule is to specifically say that the defendant that they're consulting with the attorney, their attorney, they can wave their personal appearance and personal appearance for purposes of the rule going forward would could be accomplished either by telephone or video. So this in my opinion is a very important part of this bill. And I believe it has the support and Marshall, I see is on and can speak to it but the defender general spoken favor of this piece and I'll obviously let them speak for themselves but I think everyone saw the value in allowing this. And I'll just keep going unless you want questions on specific sections I can come back. So section five is is really a broad based recognition that because of the reduced staffs because of the limited time and court the limited schedules that a lot of statutory guideline time frames timelines could not be met. And most part people recognize that they couldn't be met so this is just a relaxation of certain guidelines, for instance bail review, or review of conditions of release. It just expands them, I think it's up to 14 days. 14 days as opposed to 48 hours under bail review and I think it's 10 days Marshall on conditions of release. So just expanded them but it was more a recognition of we're not able to get to them in a timely fashion. And that was true of other other timelines in committee may be aware at one point there was provisions in here to relax the time frames on some mental health hearing. That was taken out of the bill. I don't know if it'll appear again but again, it was really from the judiciary's perspective. It was more of a practical recognition that we're not meeting those timelines. And so they're out. But the mental health hearing timelines are out of the bill. When you get into section two. This is section five but it's section two of that bill I'm reading on page five line eight. That again is a recognition of in this time frame, and particularly even when we come away from the so called AO 49 emergency provisions. We have a significant backlog in all of our dockets, and the court is in the process now of going through a process of trying to come up with a priority of cases in each of the dockets and that's going to take some time. And again, a recognition that request to seal an expunge can be time consuming with staff. We have limited staffs. And even when these emergency orders are lifted, we don't necessarily anticipate that with the switch, you know, changing the changing the date is all of a sudden going to mean we're going to have full staffs. So this again is a recognition. We're just not going to be able to get to those requests for expungement or ceiling. And that's why it's reflected in there for I think it's 100. 120 days. Selena. What is the status. Judge Gerson of the in the budget adjustment. You know there were additional positions temporary positions. And I believe that's in your current budget request to solely for the expungement work so what is what is the status of those positions and what are the workflows or those among the people who are not currently working. What can you just fill us in on on how those resources are being used. I will try to I mean the legislature, I don't know if it was the last session or the session before approved funding for I want to say it was five positions. Expungement and ceiling process and the the offenses that were included in that going back at least a session maybe two ago. So those folks have been hired, and they are part of the process that I'm saying now we are operating with reduced staffs in every court, every courthouse. But I think what you're referring to is we did have a request in this session because of increased increasing the types of offenses for expungement and or ceiling I think we had an additional request for staffing needs but you know that obviously hasn't happened. I think I meant to I'm asking more about the status of the current workers that the workers that are currently funded. Well, I guess I would say that the people that were hired in those positions are considered staff so it's not as if we've isolated them to do only expungements not in this emergency situation. Maybe if that was the case. I mean the staffs go from docket to docket sometimes court to court. So it's not as if those positions were isolated. And while everything else is struggling to schedule we would say, Okay, you are hired to do expungements and ceilings. You're going to do that. I don't know if that answers your question but they're part of the court staff. They're part of the reduced court staff. And these just can't be a priority, certainly under the current circumstances. I know that's difficult for folks that have worked long and hard on expungement and ceiling process but there's always we have to set some priorities within the within the court process and if you've had reference or had the chance to look at AO 49 it's clearly not identified as an emergency process that has to has to proceed. It's not on the list. Does that answer the question. I think it does. I just, I think we fun. Yeah, I mean, of course I understand that that is not on the emergency list of things that have to proceed right now and this very very clear down world I think I'm thinking more about the like what comes afterwards part of things and was just trying to understand how those positions were being utilized, you know, like especially in this time period but I think I was just a little confused about your answer where it sounded like you were saying like well those people were never just doing expungements but I think we know. Then I misspoke what I was trying to say was this understood extent that they were doing that before this emergency happened, they would now be devoted to whatever process whatever matters are being scheduled in the courts now. I mean they mean, you know an individual may not be there at all. I mean some staff members no longer come in so the staff members that do come in and are coming in in some places on a rotating schedule. They're going to have to do whatever that day's work calls for an expungement just isn't in that mix so. That's what I was trying to say when they're not isolated during the course of this emergency period to do only the work they were hired to do everybody's doing things that they may not have been hired to do. In other words, another example maybe that would help is the Wyndham civil court, for instance, got down to one staff member, and we didn't close the court but we've certainly suspended operations in that court to send that staff member over to assist in the family civil division where they're even on a reduced level that's where most of the cases that are being heard require staffing so even though that person was hired as a docket clerk if you will in the civil division, they're now over in another courthouse handling other matters and I'm sure that's what's happening with the people that were hired as to do the expungement and ceiling work. And it's just going to take a while to get back to whatever normal is on the other side of this. That's why we've asked for the extended time after the emergency is lifted. So I do see Barbara's hand but judge I'm going to ask you to go through the finish through the memo and then we'll get back to our section by section questions. Barbara first, just trying to see where I left off. So section three again I'm on still on page five beginning line 13. Again as a recognition what was happening was the DUI cases when they come in also carry with them what are referred to as civil suspension proceedings relating to the suspension of the driver's license, and they have again specific timelines that have to be heard 21 days from the time the person was stopped 42 days from the time the case comes into court, and we were just unable to to with any certainty, guaranteed those timelines could be met. So that again is a recognition that we're not able to schedule those cases. And therefore, those timelines have been suspended. And because they would otherwise call sometimes for an automatic license suspension. The Senate judiciary included the provision that licenses would not be suspended until we could schedule those civil suspension proceeding section six relates the statute of limitations in civil actions. And that's merely a recognition that for any number of reasons that have arisen during the emergency period. We have told the statute of limitations until this emergency is over and I believe it's 60 days. If, if a lawsuit had to be filed today during the emergency period, and not knowing if attorneys who are handling a particular case for a client were able to process that matter. Recognize the need to have a delay in the filing of that action 60 days after the emergency period so no one would lose the possibility of a claim being filed due to the emergency or due to the unavailability of the lawyer. Or any other number of issues. And finally, section seven was just added recently. And in my opinion, in addition to the provision relating to video appearances, this is probably the most important part of this bill. Because the longer this has gone on, the more we realize the the inability to have notarized documents filed and certainly in some cases timely filed. So this is an amendment to an existing for VSA 27 B. Again, I'm looking on page six section seven beginning online for the reference to online nine to title for section 27 B is a statute relating to electronic filing, which is not available in all of our courts. But it was a recognition again that if you're filing electronically, you would not have a notarized document. It allows for documents to be filed in lieu of a notary to use the statement of a sworn declaration that begins online 13. And so this statute if included in the bill would be a broad based would apply to any filings with court with the two notable exceptions on the bottom. The section would not apply to a search warrant or non testimonial identification order, meaning they would still require a notary public's and that is the same language that is in title for 27 B under existing law. So in some in substance that that's, that's the bill. Those are areas that we felt needed to be addressed. Thank you. So I'm actually going to go past the judges time because I think the committee does have some some questions and so, so Barbara, if you ask your concerns about section five or or if you had something else at the time but but Thank you. Hi, church girls. Oh, there. So, can you, I just want to back up for one second before I get into more specifics about section five. Was there any kind of decision matrix that was used I know the Chief Justice talked a little bit about courts and pandemic planning to sort of look at what are the most important actions that the court needs to take. You know if it's like physical harm harm to civil liberties so I guess I'm just wondering when you've had to make these tough choices about what things will go on sort of the back burner and what things won't. I don't think there was any kind of framework that that was used or was it more of a just discussion. Well, Well, certainly there was discussion but I'm not sure what you mean by a framework I mean there certainly wasn't a grid that was created that, you know, went through the myriads of cases that come into probate criminal family and civil. Certainly a recognition, I think in every docket that certain types of cases had to go forward. And as as the court has gone on, obviously, this whole process is evolving for everyone. I think I want to say they're up to at least five or maybe even six amendments since then so there has been recognition as we go along that they need to go back in and look at proceedings. So, you know, it was certainly a deliberative. Yeah, I, and it's not like as easy as like an ER decision making matrix but would you by chance know where we stand now in terms of how caught up we are in expungements and ceilings that have been requested but might have been, you know, pre emergency order like or do we have a backlog already, are we pretty caught up with expungements and ceilings. I really don't have any idea I can tell you that over the last few weeks, if any have come in, I can't tell you that they haven't been addressed but it's, it's, it's not a priority. It was the court staffs in no small part that were seeing the need to have this postponement if you will of processing those. But I kill I couldn't tell you if every request that came in before the emergency started had been addressed or what the backlog is. I don't know if there's any process that could be put in place or modified, where these could be done by folks off site I realized that the staff that representative Colburn was referring to are, I didn't think they're full time so I don't know how much they get paid when they don't work and so I'm thinking it's sort of a win-win if they can do the work and people who want to get expunged or able to get their records expunged. I don't know what the volume normally would be but I'm thinking as we're getting more people out of prison now we've heard that we're down like 200 people roughly I think. And I know a lot of people have lost their jobs temporarily or permanently. So I'm also concerned about people who are going to apply for jobs as the pandemic. As we come out on the other side and the obstacle of being able to get a job if expungement isn't occurring. I don't know when sealing will occur but it'll have to occur in a time frame that recognizes that other matters may take precedence over those particular issues. I can tell you without knowing every single person that came out of jail if they've come out of an incarcerated sentence, it'll be a little while before they're eligible for expungement or sealing. It's not that we're ignoring it but there has to be a recognition in every facet of the judicial system whether it's family or civil or criminal that we have, we're going to have to establish priorities of cases that are coming out. Whenever this emergency is over, there's going to be a significant backlog and the priority has to be on people who are incarcerated awaiting trial. We've had trials that have been scheduled that jury drawings had to be canceled. These are people that are being held without bail. We have juvenile proceedings that have been put on the board had to be deferred merit hearings, disposition hearings. So it's just, it's a matter of, and I will say that the biggest concern, one of the concerns I have is what will we have for staff. When we come out of this, how long is it going to take to get back to what we used to think as normal and there's probably going to be a new normal on the other side of this so I understand the concern but it's only one of many that we have. No, I, I know and I guess I just want to make sure that we're not in our decision making sort of will end up hearing from people who I don't want to say just have lobbyists but who are able to articulate the work that they're doing and how it's held up and I just want to not forget about the people who can't be here to talk about the impact on them. Your, your point a minute ago led me to my second worry which is the changing the 48 hours and the seven days on the conditions and bail review. Increasing the time so isn't that theoretically adding to the time that somebody would be incarcerated without getting a chance to have their bail reviewed or their conditions reviewed. Well I couldn't say that it doesn't extend the time because it extends, for instance from 48 hours to seven days. Right. But as I said earlier that's more of a recognition of what we're able to do with the resources we have in. I think on the, on the, if I can say the positive side of this. I think you're seeing for the first time in most people's memory the, the incarcerated population going down in the detainee number, going down below 300 I don't know what it is today but below 300 so I think you're finding that, and certainly my recommendations to the trial judges and considering bail requests. I would like to think that everyone is taking a closer look at what kinds of cases where bail is being set. So I think the majority of cases that I'm seeing and I'm sure Marshall has as much information as I do but what I'm seeing is more serious cases. That are coming in on bail reviews, and it's not as if we're going to use that timeframe to say okay we've got 14 days to do this, we're trying to get them in as quickly as possible. And we will still attempt to do that but this again is more of a recognition of the inability to meet those timeframes than anything else. And going from 48 to 14 days, you don't think there's any chance to kind of tighten that up so it's not really going to two full weeks. It's not all 14 days so the first section on page five on line for section a talks about conditions of release relating to the setting of bail cash bail goes from 48 hours to seven days conditions of release that are just conditions and not bail are the 14 days. So that's changing something from a curfew could be anything from changing the curfew to changing the residents changing a reporting requirement so it's the first one that goes from 48 hours, seven days. And that's a week. What I can't tell you is when someone files that bail review on a Wednesday of a given week. I cannot guarantee anyone at this point that we are able to have that hearing on Friday of that same week. So this gives us some flexibility and scheduling that we just don't have the ability to move as quickly on these matters. As we're used to do I do we like this. No, we understand the need to get these matters heard it doesn't mean because it's seven days that we're going to schedule it seven days out. It may mean that they will if we have the judge available and the time and the staffing that we will bring it in. Either the next day or within the original 48 hours. And then Martin do you want to put in on your concerns regarding a section was a five. Section five but it's the subsection three regarding the suspensions of driver's license for DUI. That was just that was just one area in this bill that gave me biggest pause and biggest concern if somebody who would otherwise have their driver's license suspended for six months or three years or whatever, all of a sudden has doesn't have it suspended until the delayed court hearing. And I noticed that in your judge in your recommendations in your memo you didn't, you did suggest suspending the hearings but didn't suggest allowing the individual to retain their driving privileges pending the hearing. I didn't for the simple reason that, and it's no excuse but the memo was prepared on relatively short notice to be able to present to that the rules committee, and it's kind of taken on a life of its own. So that as it went from my memo to a bill form and Senate judiciary, my original thinking I was only thinking of the DWIs that come in that don't have an automatic license suspension. And I think it was the defender general that in discussing this section of the bill with him pointed out that for subsequent offenses there is an automatic license suspension. So when the bill came into Senate judiciary. That's when the discussion took place about license suspension so that's why it's in there. Now, it's not that I. Yes, I understand maybe this is going to be a better better question for Marshall, as far as. Why do we have to allow the individual to continue with the driver's license I'll ask you first but that's going to be one for Marshall as well. Is there is there perhaps another route that one could go, for instance, and there's a question at the end of this for for these various offenses civil offenses, one of the opportunity options is to have a ignition interlock device. I could for this interim period to have a waiver of the application fee and the individual has to get an inter ignition interlock device if he or she wants to continue to drive. Otherwise the license is suspended until that hearing occurs. Are we not seeing the ability to do ignition interlock devices right now because of the coronavirus. Maybe there's another option I'm just very concerned about for some amount of period of time during the, the situation we're in now that individuals who have driven with a point one six blood alcohol level and may have had a previous DUI can continue to have a license in those privileges. Let me go back to the beginning of your question. It from our from the judiciary's perspective, the reason I originally proposed the waiver of those initial timelines, I will be quite honest with you I didn't consider the license suspension consequences because I wasn't thinking of subsequent offenses. It was driven by the fact that we would have difficulty in scheduling the civil suspension hearings in a timely fashion during this period. And so that was what drove my original request, and I had not considered the consequences of subsequent offenses and that's why I'm saying that came in later as more people became involved in a discussion of the, the area that I was pointing to, and I hadn't considered it so are there other alternatives. There may be but to the extent that they require processing in court through through civil suspension proceedings, or even the prosecution of the DUI offenses. The problem isn't finding the time in the, the ability to process those cases, DUIs in and of themselves are not considered a priority and not considered an emergency hearing, other than that, we were bringing in DUIs for permanent purposes in other words asking people who otherwise would be released on conditions of release to come into court where our goal has been to minimize people coming into court they were coming into court solely to set these timelines for civil suspension hearing. And so that's what drove the original request on my part was to really avoid having people to come in and come into court. Because they, that's the only way the process worked. That process can't be done remotely. The what that process can't be done remotely. Well, if they're cited in, they, they need to have an attorney assigned, and we have to set those deadlines, there's not. I guess to some extent you could do it remotely but we do not have the time to schedule these matters for hearing. Is it possible to just carve out subsequent offenses, not have the situation where the, where there's a delay of the hearing or suspension of the hearing, or is that still a large number. I do not have the numbers for you today and I don't know if Marshall does. He might have a better handle on the numbers of cases, his office sees. But part of the problem also is when you come to the civil suspension piece is that they since they are civil proceedings. Attorneys are not always assigned to those they're not assigned to those cases, some defenders choose to represent individuals in those civil suspension proceedings, because they are so aligned with the DUI processing but that does not happen in every In some counties, I would see the public defender there for a DUI case, but they would not be representing the individual in a civil suspension because it is not a criminal offense. And so that varies from county to county as to how that happens so it's not as simple as saying can you have a remote proceeding. Because it may be a remote proceeding with a pro se self represented litigant, and that creates other other issues. So what I thought was a rather straightforward request is obviously much more complex than I appreciated when I put that in that memo. You were speaking to some of those issues and and the defender general did as well when it went in front of Senate judiciary. And that's why the bill appears as it does. There is an evolution here that particular piece. Right. I kind of hear from the defenders on that particular issue as well. But I'm still troubled that the subsequent offenses that could be some number of months when there doesn't seem to be any consequences for for that particular individual. The only other thing I would say is that, you know, these cases don't necessarily resolve themselves in the same timeframe we're talking about this emergency anyway. Because a DWI comes in during the emergency period. Let's assume this emergency period ends. Let's just say for the sake of argument the first of June. It's unlikely anything would have happened between March 17 when the administrative order went into effect. And in June 1, just because of the nature of the docket in the scheduling matters. So, I don't think it's a question of obviously how long this process goes on and how long it takes us to get back to normal. Am I not, am I mistaken? I thought that the driver's license is automatically suspended. So during that period of time, the driver's license would be suspended for Zoom. It is for subsequent offenses, not, not the. Yeah, that's what that's the realm I've been concerned about. And that's what I've been talking about. All right. All right, thanks. I don't know if you're done with me or not, but I had heard through other folks that you've had other witnesses testifying not necessarily on this bill yet, but on other issues that may pertain to the judiciary, including RFAs. And I don't know if you want me to get into that now, or if that's coming at a later time today or some other day, but Yeah, no, let's, let's wait on that. The question was, are there other things that, for instance, since your memo, you know, that are coming to light that might need work on it. So, or behind on this, so let's, let's stick to this. Okay. But I'm available if you need me on other matters. Yeah, that would be, that'd be helpful. Thank you. Okay. Thank you. Yeah, thank you. So we're going to take Marshall now. Okay. Can you hear me? Are people able to hear me? Yes. Yes. I've seen some knowledge. Okay. So I will pick up where the judge and representative along left off in talking about DUIs and sort of work my way backwards just for the sake of convenience. I think that the DUI question, I totally understand the concern, but I think that in this case, there's really no other option. The only option is to either schedule the hearings and have the hearings take place, which I think would be very difficult given the current level of staffing, not just in the judiciary, but in defense offices, prosecutors offices, frankly at DMV is also involved in those hearings. And I think that the real issue is that there's no way that you, what you cannot do is you can't say, we're going to impose the suspension, but with no timeframe for the hearing. And that's because it's a due process issue that if the government's going to take something away, even if it is something just a driver's license, and even if it's just temporary, there has to be some sort of a hearing on that. And the Constitution definitely favors what they call a pre deprivation hearing, meaning that you get a hearing about whether or not it's okay to take that driver's license away before the driver's license is actually taken away. And the Constitution also recognizes that there's some circumstances where the government has such a strong interest that they can take something away from somebody, deprive something from somebody and have the hearing afterwards. But if they're going to do that, there's very strict guidance out there about how fast that what they call a post deprivation hearing has to take place. And in this case, it's been recognized that this 42 days isn't is a acceptable timeframe that if you take somebody's driver's license away for a second or subsequent DUI that that's okay as long as you have a hearing on that deprivation within 42 days. Now the problem is that if you were to just simply say, we're going to keep the suspensions in place, but we're not going to schedule the hearings, you would essentially be saying that you're getting the government's taking your license away. And there is no time frame for a post deprivation hearing. And that's where you would run into constitutional issues that would be a Matthews v eldritch problem. And so, what I would say is that there's really two ways this can be handled one is the way that it is handled in the bill currently which is to simply say, we're going to treat second and subsequent DUI is the same way we treat first time DUI's, which is you don't have your license taken away until you've had your civil suspension here. Or we could say, we're going to do whatever it takes to make sure that we have that hearing within the 42 days, whether or not that's something that all the players in the system could accommodate I don't know, but just legally speaking I think those are the only two options. Any other questions about that or move on to other things. So, Marshall, I, I haven't done the deep legal analysis on this but but I don't think that this is the only legal way that this could be done, just for example, I mean, the 42 days is not something that. Yes, that's that's enough for post deprivation timeframe but in other situations longer periods and that are have also been considered fine for the promptness of a post deprivation hearing. So I can understand that there could be an extension of those timeframes I agree having no date at all is problematic but if you said, it's going to be 120 days. Yeah, maybe that's going to be litigated but I know that there's other situations where that has been found to be a sufficiently prompt. Or another alternative also could be that yeah it's going to be picking number 90 days. And if the hearing is not held within the 90 days of the license will be reinstated. And so that's there are a couple other ways to get at this where somebody with a second or subsequent loses their driver's license and still has the sufficiently prompt post deprivation hearing. And if it's not done in that prompt manner then then again it's reinstated so it would seem to me that that's like something like that could work. I don't have an answer because the nature of Matthews is that there's no way to predict what Matthews analysis results in because it is one of, you know, in my opinion one of the least useful Supreme Court cases out there in terms of providing you with any guidance or any ability to sort of look at a situation and try to figure out how the court would resolve it. I don't have an answer for you in terms of what 180 days be okay what would 90 days be okay. You know that's something that would simply have to be put to litigation. And frankly I don't think that's, you know, I don't think that it's current I don't think that this is the right time for that kind of uncertainty. The other position on it would be to either maintain the status quo and just make the hearings take place, which would not be ideal because these are often contested hearings. They are often joined with other hearings in a DUI so for example often a civil suspension hearing will be joined with a suppression hearing for the criminal case. And to wind up in weird situations where you have the criminal cases being completely halted by executive order or administrative order 49, but then, you know, the civil proceedings still going on or something would get complex. So it wouldn't be our preference but I do think that if you know if you have the hearings if you make the hearings take place even during the pandemic and even during administrative order 49. That could work, or just simply leave it as we're going to treat the UI to the same way we treat the UI once, which is to say, no deprivation until you've had your here. I mean, I don't think that's an option as far as having the hearings but maybe I'll turn back around to get the judges input on the concept of a, I'll pick a number 120 days and you lose your license and they are unable to get the hearing in that 120 day period. The license would be reinstated. If I should ask the judge that right now or wait until Marshall is done with the rest of the vaccine. Well, I mean I'll just jump in with my concern about that 120 day and then if there's no hearing then it's just a suspension. I mean I guess my concern with that is just, you know, in addition to the constitutional concerns and the litigation that would necessarily ensue is just sort of the fundamental unfairness we actually see fairly regularly by defendants being successful at civil suspension hearings and having your licenses reinstate, you know, winning the civil suspension hearing it's not at all uncommon. So really what we would be saying then is just on the basis of an arrest alone with no with never, you know, never getting to the point of going into court and proving your case you're going to be denied your ability to drive at a really crucial time. Honestly, when there's a lot of services that have shut down, there's a lot of, you know, it's really difficult to get access to public transportation right now. You'd be saying we're going to take everybody and say, for four months you're not going to have a hearing and then you may never have a hearing at all, maybe that the hearing never predicts place and you just had a four month license suspension without any ever having an ability to go to college and just as a matter of fundamental fairness, I think that's something that would be problematic. Selena go ahead. I think you're still muted representative Cobra and I couldn't hear anything. Sorry, I'm always like simultaneously trying to lower my hand and unmute my mic and forgetting to do one. Yeah, and it's not really a question at just like more, unless you want to add more detail but just, I think, like, I hear your concerns representative alone and but I also think we have this balancing test of like the public safety implications of not doing the suspensions and then the public safety implications of taking potentially vulnerable people and like further isolating them for long periods of time right now with the world the way it is right now and I don't know how we solve that balancing test but that seems to be a critical part of the question we have to weigh here you know. Isn't that what we're trying to do is isolate people. So let's get let's let's get through testimony because we're behind time which and I think it's important to have taken the time but also want to make sure that Marshall gets to the and and the conditions of release in those other sections. So addressing the expungement and conditions of release on the expungements, we've always supported some sort of automation of the expungement system, I don't think that's actually a remedy here though. The reason for that is that they're not going to be able to do any of the judiciary wouldn't be able to implement any sort of automatic expungement system that didn't require staff time and staff work. Anytime, hopefully, within the duration of this pandemic I'm hoping it doesn't last until we have, you know, finally a fully functional electronic system that can do those kinds of things. Really, honestly, from our perspective expungements just are not a priority right now our focus has been on getting people out of facilities and when we, you know, in the last few weeks since I've been on the phone constantly dealing with clients dealing with attorneys. I haven't had anybody asked me about expungement it's been the first like two week period and months maybe even years where nobody's asked me about expungement so we just don't see it as a priority. And we don't have a problem with the sort of suspension of expungements right now with the 120 day extension, so that there's not a huge backlog that hits the judiciary as soon as as far as the extensions of time for bail review and conditions of release review. We don't oppose what's in the bill, which is not to say that we are super supportive of it. You know, we don't love the idea of extending the timeframes for those reviews, but honestly, this bill is more of a reflection of what's actually happening that it is a reflection of sort of what we all desire. And, frankly, we're not seeing too much of a problem. People who want to be heard quickly are being heard quickly, and there's actually really good work going on on the judiciary's part that we support that really requires this, you know, these timeline extensions so for example, bail reviews that are all raising the same issues regarding the existence of coronavirus in facilities and the transmission of coronavirus around facilities are all being transferred and heard in front of the same judge all at one time, which we think is a positive and that's going to lead to more consistent and more accurate results on these on these bail reviews that are all raising the same issues. And that's something you know that sort of consolidation of cases is something that would be impossible if the normal 48 hour I'm sorry timeline was in place. So, we're not opposed at the same time will say that we, you know, are concerned that there will be cases where people will not get access to avail review when they need. So, that's a provision that we're mixed on, but we don't oppose it because really, frankly, we're not sure how else it would work out. I just given the resources that are available to the judiciary, and we do see some benefit in this time. And where things are moving so quickly in giving the judiciary the latitude they need to be able to consolidate these cases and hear these cases in a way that ensures some consistency. So that it's not that people are getting you know, raising the very same issues and getting very disparate results from county to county, and that sort of thing. So, while, you know, the idea of extending the time frames for bail reviews certainly makes me as a defense attorney a little queasy. I think that in this situation for these purposes. It's not at all inappropriate. And I think that actually addresses all of the questions that were in the email. I'm happy to also speak to any questions that were not in the email. Thank you. Committee. Okay, great. I'm not seeing any hands. Okay. Great. Thank you so much. Okay. So, David, if you are still available, and we'll take we'll hear from john at the end if we have time. And if not, we do have extra time tomorrow. If folks are available. Okay. Thanks for having me. I actually don't think I have a huge amount to add to what's been discussed. I, and I'll go through just a couple of the points here that affect our office in particular. One is with respect to the extension of the civil timelines the civil case timelines and with that one, you know, theoretically our office could be impacted in the state of Vermont. Theoretically could be impacted with respect to extending the time to file on those. But we do think it is a fair and reasonable thing to do, even if it means that there are some cases might end up getting filed that wouldn't have otherwise because the people who would not be able to sort of navigate this unusual world are most likely the pro se individuals who may have a valid claim to make, and we wouldn't want to see them be treated differently or in effect be treated differently than more sophisticated parties who retain law firm So we think it's a fair thing to do, despite the fact that it may be exposing are the state to a few more cases, although we really don't imagine it would be a dramatic difference. With respect to the DUI timeline issue that's come up a few times on this call as I've testified before our office really doesn't do too many DUIs and so I think I would largely stay out of that thicket. I do think that there are interests on both sides here that are important both the public safety interest in terms of keeping the roads safe from potentially unsafe drivers, but also a very real due process interest that's reflected in the current timelines. And, you know, they may be that there's a solution that can be arrived at with respect to a sort of longer time period after which if there's no hearing a license comes back on a temporary basis I think that's something that is a reasonable but this legislation the proposed legislation is really recognizing the realities that the courts are operating under. And there's a lot of issues out there that are being delayed that have a really great impact on people's lives and I think it's important to, as the judge alluded to. There's a lot of really pressing matters that the courts are trying to balance in a very difficult time so I think just keeping that context in mind is important and as I know the committee knows. With respect to the various reviews and so forth again I think I don't have that much to add to a Judge Greerson and and Attorney Paul had to say it is a reflection of what's happening now as opposed to really like a new policy that's being decided. The courts are doing the best they can and the voters are doing the best they can very difficult circumstances to get to important hearings as quickly as they can. And this legislation is a reasonable reflection of the best efforts that are being made. Thank you David. Any questions for David. I'm not seeing any. Okay, great. Thank you. So John are you are you available I don't see pepper so I understand he's with another committee still perhaps. Can you hear me. Yes. Okay, sorry yes I was trying to find my unmute button pepper I believe he's still over there with corrections. I'm going to offer a couple things if you'd like. And some of them. If you don't have time we can certainly be available tomorrow but I actually on the DUI question that you just had. One of the things I think you know that can be pointed out is that the statute actually says that the hearing should be added in certain amount of time, unless good cause, or some other issue comes up and other statute for me but I would think that the pandemic and situation we're in right now would certainly qualifies that but I think the biggest concern and representable long pointed this out are the subsequent DUIs. And you have your the second or anything after the second it's and it's actually not the court that does a suspension it's it's really the DMV that does the automatic suspension so you may. I don't believe that the Senate had anyone in DMV but you may want to ask them, you know what the process is, and how they would, what this would mean for them, going forward. Are you still here? Yeah, yeah. Oh, I'm sorry. It was like it was dead dump going. This is like dead air back on the radio days. Keep going. Okay. Okay, so that's that's just with the with the DUI and right now I'm just trying to go down to get those questions that were being posed because I have about 30 documents open in front of me on my computer so if you just give me a second here. I'll get those. Okay. So we're dealing obviously with just section section five, you know the judge handled and explaining extremely well about the 48 hours and the need for that that's that's all as far as right now resources are very difficult. They're being taxed and it would be difficult to have those. And so I think that he's addressed out those issues regarding the timing and the expungement issue again I think I agree 100% it's they're not as Marshall pointed out, I don't believe that there is a huge push for expungements at this point in time. And I my concern is always that when I think somebody suggested it might just making or we should make make expungements automatic. I think it would be not any it would not be a good idea to to make a change like this and haste, especially during this time period, and one in which it's really not as as critical as some of the other matters we're facing. You know, to me and to say to turnies what what our concern is we've been working very closely with do see and with the defense bar and trying to get the detainees that we feel it could be would be able to be sent back into the community. To so that they're not held during the time that they're being detained, and we've been very successful and as you as you've seen we've also has been extremely large dip in the population of incarcerated in that's a lot and having to do with. I think our work with the DOC and with the defense bar so we're continuing to do that and the states turnies are. We have our guidelines actually we've had guidelines up for internally for three, three to four weeks or three weeks now. And those are directive to, especially in dealing with law enforcement and explaining that we do not want you to make it be making a rest where you're going to be detaining people, unless it is something that's absolutely critical. Otherwise they should be cited out which is what has been happening. And so we are trying to do what we can to contribute to the lesson of the population that is currently and the other people that are being held by do see. And we see the driver's license that I think I just explained that, and I will just take questions because I don't see anything else here on these questions that has not already been addressed completely by the previous witnesses. Thank you john committee questions. I am not seeing hands yet. Nope. Okay. Great. So, right, so committee actually we still have more time. Any questions for for judge Gerson, in terms of this bill. Yes. Yeah, yeah, I'll go back to that question or what I raised with Marshall, as far as whether they're, if I could have the judges input on a concept of having a timeframe extended for second or subsequent of 90 days. This is the automatic suspension of licenses, but if there's not a hearing held within 90 days. It would be reinstated automatically. If that's if you could just comment on that kind of concept, Judge Gerson, that'd be helpful. And you're on mute still. Sorry. They gave me time to think. I think it's, I think it's complicating an issue that is complicated enough. And my concern is that not everyone involved in these, and I mentioned it earlier not everyone involved in these process has the benefit of advice from from attorneys. And I think, I think we can still get to these matters in a timely fashion obviously as we go through the dockets. When we come out on the other side of this, I would expect that these kinds of proceedings would have at least the civil suspension would have some level of priority in the criminal docket not necessarily relying DUI because they invariably end up with with can end up with jury trials so that they have a whole separate course. But these are preliminary hearings that I expect would be heard within a reasonable time once that's over. I'm concerned about automatic suspensions. And if I knew better when this was going to end and how long we'll be back to normal. I think I could answer the question more definitively. I'm just concerned. Thank you. Okay, anything else on s 114. Judge Gerson. Oh, yeah, go ahead. It's not it's not a question actually for judge Gerson it was just more committee discussion on that, just some more folks I think it would be helpful to hear from on the DUI piece if right. No, yeah, I'll get to that towards the end because I'm making a list list to certainly. Okay. So since we do a little bit more time. Just Gerson you had started to say that they're maybe some other areas that need attention or at the very least bringing to our attention and possible possible legislation. Yeah, they were actually they're not part of this bill because they were brought to my attention by other folks and primarily this involves the issue of RFA proceedings and issues related to that subject. I've communicated with Sarah Robinson and also to some extent legal aid. And I guess I would start by saying that we are still RFA's are a procedure that is still ongoing. We have not asked to change the timeframes related to those proceedings otherwise they would have been in this bill. We recognize the necessity of getting these types of cases in as early as we can. And so the courts have maintained their regular schedules for these cases. The most part, my understanding is that they are being heard remotely. And that is by telephone. I cannot tell you whether some attempts have not been made to do these by video, I can tell you that the court, in addition to the video systems that are in place. They're continuing to explore ways of having hearings remotely in other words allowing people to appear via Skype or zoom or any other excellent but that's still a work in progress so to a great extent these hearings that are going forward either the individuals are in court, or maybe one individual is in court one party, and the others are calling in. I've had discussion with not only Sarah Robinson but Heather Holter from the Domestic Violence Council about the question of making telephone appearances mandatory and my own opinion and I believe it's reinforced by the domestic rights of these people is that that could be a mistake because not everyone has access to phones, and we don't want to preclude the possibility of someone not having access to a phone so if people want to the courts are still having them appear in court if they want to appear by phone, we're doing it that way so the two issues that came up where if the committee will recall in six H, I think it's H 610 language about once a temporary order is issued when served, the language in the bill I believe calls for the temporary order to continue in force until it is dismissed, or until a final order is served on the defendant. The language that we supported in 610, and we would certainly support it being included, whether it's in this bill or if you're working on some other bill where it would apply. I think it's important, perhaps even more important now than it was originally for this reason that if we get service on the defendant of a temporary order, whether or not they appear in court for that final hearing is more difficult during these times for the reasons I've stated. Somebody may attempt to to call into court and maybe their phone runs out of battery so they're not able to any number of things could happen why someone doesn't appear, but at least these orders would continue in full force and effect. Unless they're dismissed or until the final order is served so we think that that provision is important. Your honor excuse me is, is there any concern about service or I've heard, I've heard mixed things that law enforcement might be concerned about actually serving orders. Yeah. I have heard those comments I've spoken with, I think, John Campbell and I were on the phone, probably a week or seems longer ago than that to talk about that shoe, Roger Mark who. And I think that there are concerns they have been expressed, but my understanding is, and at least what I'm gathering from domestic violence. They're still serving these orders. Now, maybe there will come a point in time when they say no we can't. There's certainly less civil process being served these days and if the stay on foreclosures and eviction goes through there would it be even less civil process so it would still leave. It would be a limited number of orders, and because we've reduced the types of orders that are the issues that hearings that can be scheduled. I would like to think that there always be enough sheriffs and process servers out there to serve these orders but it is it think it's an ongoing concern. Discussed. Right and I, I heard of it as a concern for the officer's safety and contact and. Yeah, right. Yeah, it's not just a matter of numbers being able to do it but it's the, again, it comes right down to the very basic issues we're all discussing and that is social distancing and stay home and going into areas where they don't have any knowledge or understanding and knock on the door, what the circumstances are so there's certainly that but as far as I know this. These orders are still being served. So the issue one of the issues that came up. And I could be wrong but I had understood that you may have heard testimony last week from someone I believe from legal aid who was suggesting that one. Because of issues they had been seeing I don't know what the issues were because I didn't hear the testimony but they were proposing that temporary orders, once granted, would extend throughout the life of this emergency period. I don't know if that is an accurate reflection of the testimony you heard. I'm going to be hearing from legal aid tomorrow I think there was reference but but the person who testified didn't have the exact information so we are going to ask about that tomorrow. And yeah, in my concern would be, as the committee may remember from other hearings other testimony, these temporary orders are granted exparte, in other words without the opportunity for the defendant to respond. In the only way they can respond is to schedule the final hearing so extending an order temporary order and exparte order without opportunity to be heard is not not anything that the judiciary would certainly support. And the second piece, and I'll let obviously Sarah will be testifying and other folks. These cases are still coming in. And I think my sense is from from talking with the judges that they are able to handle these proceedings in other words. I don't want to say in every case but I think every attempt is made when parties come in whether one's on the phone or one in court and they're both there. There is an attempt made to get an agreement to see if the parties can agree on an order. And that will continue in my my sense from talking with the judges about some of these changes is that they at this point feel that they're able to process these cases in a timely fashion and haven't encountered difficulties other than the difficulty sometimes of having one party on the phone and one party in court that presents all kinds of issues with as far as presenting documents exhibits is made more difficult cross examination of witnesses if one party is on the phone and one isn't is extremely difficult so I don't want you the committee to think that it's doesn't have its problems but the judges, I would almost say uniformly you're saying we're able to process these. We're certainly encouraging folks if they don't want to come to court don't want to take a risk to call in and we're not asking for formal written motions to be filed. Someone calls the court that morning and says, I'm afraid to come in, or for whatever reason, can I appear by phone we're granting those requests as liberally as we can so I would just be concerned about trying to change that process. It seems to be working from from our perspective. And I'm glad to come back when, whenever the committee is hearing other witnesses if I can be of assistance but with that other change, as I said to extending temporary orders or at least their validity consistent with 610 we would favor. I would just be very careful about tweaking the system right now, because it seems to be working. Sorry, Selena. I think we, it's cool it's really good to hear that this is working in a timely way and that that these proceedings can continue and I deeply appreciate the other ways it sounds like the judiciary is adapting and prioritizing these hearings we did hear testimony and it might have been from legal and I'm trying to recall. I think it was in this committee about some instances and perhaps this was earlier on where some folks had tried to participate remotely and we're told they had to present in person for these hearings. Is it is it true that at each courthouse now the that option to participate remotely is, has that is that consistent across all 14 counties at this point. Let me just say that at the beginning of this emergency period. Everybody was finding their own way. There is no question that the preference for any judge would be to have the parties in court for some of the reasons I've just explained that cross examination, seeing exhibits admission admission of exhibits is extremely difficult. So I'm certainly not going to say that initially. Some judges may have said look, there are rules for a telephone participation and so you've got to file a motion and to the extent that I think that I've been able to convey the message it is, look, these are different times, different circumstances. We have to accept the fact that some people just are afraid to come to court. They may be except exhibiting symptoms that they don't want to come to court and potentially expose other people. There may be any number of reasons and so we've tried to, as I said be extremely liberal in accommodating those requests, knowing that it is not, you know, perhaps the most. The best way for these proceedings to run but I think with everything going on. There seem to be able to get through these and people get heard and and decisions are made in. So, certainly at the beginning it's a struggle I'm not going to tell you that there might be hiccups now and then, but I think it's working. I would say that I didn't hear the other testimony. You know, folks on the other side may have seen things that I'm not aware of. And that's why I'm glad to come back and address those issues if necessary but I'm sure there were problems at the beginning and we're getting better at it let's put it that way. I like to think. I appreciate that. Thank you. Great. Okay. Great. Thank you very much, Judge Gerson. So, to get back to more what testimony we need on S 114 committee so far on my list, I have a DMV on section five subsection three. Perhaps the ACLU. I don't think they, I'm pretty sure they did not testify on this and then send it to just very but regardless I think it would be helpful on this on the sections that especially section five subsection two. Anybody else in terms of other witnesses. I mean, if we really are considering amending that section, I think, like I said earlier to me it would be a public safety balancing test of like, okay, how, how, what is the danger of having people on the road versus the danger of cutting people off from say food and healthcare at this time because they have no transportation. I think I would want to hear, like, from DPS about just highway safety, how they're handling DUIs right now and, and to be able to make that balancing test but I think it depends how like I also recognize it. I would only want to hear that if we're really quite serious about thinking that we might go this, because I think they're pretty. Their time is pretty precious right now. Okay. Anybody else. Sure. Yeah. Yeah, go ahead. Yeah. Barbara. Okay. Yeah. Yeah. Yeah. Yeah. It's a different square spot probably than you are. So I'm wondering about, I know we're hearing from legal aid about domestic violence stuff, but I'm wondering about hearing about them about any of the. Drivers license or driver suspension issues and the expungement issues since they've been quite involved with that. Okay. Does it make sense to hear from Tom at all at Vermont criminal justice reformers. Like, I don't know if they've been involved in any of this, but. I don't think they happen because I think I'm, we're really have been working off of the witnesses that Senate judiciary had. Right. Yeah. Okay. Yeah. And I look into Tom pretty recently and, you know, I'm sure he would welcome the opportunity to weigh in. I think a lot of their focus is on what's happening inside of corrections right now. They're doing a lot of work there. And we already talked about Terry, right? Related to. The other section. Right. And so I know you're in contact with her. I'm sure you're interested in the details of some of the other issues. And then we do have, I'm not sure everybody was on at the time, but we do have somebody coming in. Peering tomorrow on a section one and the landlord concerns. So Terry provided a name for us. So I think that will be helpful. And then we can reassess that section, whether or not. We want to keep it in or whether or not we should see if, if we can. So, okay. So, Madam chair. In relation to section one. I put a request out to. The agency of. Commerce and community development since they do the housing. And the financial supports for that. Regarding Tom and Ken's question. So, I don't know. For the, what supports or what eligibility. Might the. Be within the funding structure. For landlords. Since that. Was a question that had come up before. So hopefully we'll have that, you know, shortly. Because I would imagine we'll all be asked that question at some point. You know, or another. Because there are constituents as well. And then thanks, Selena and Martin. For the DUI question. Because that. Is a very broad. You know, topics. So I think. Even though there are pressures on. DPS, it would be a good idea to hear. Their perspective on that as well. Because it is what it is. Thanks. Right. Thank you. And I'll work with Mike to, to get folks on, even though we have a little bit of time tomorrow, I'm not sure we can get people on such short notice when we would have otherwise been able to, but. It's certainly more challenging right now. So, but, but if not. I think we'll be able to get people on. Certainly next week. So we are. Meeting tomorrow at 1230. So thank you. Thank you, everybody. And. I guess we will go off off the record and take good care.