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May 31, 2018

Governor Phil Scott issued the following veto message for S.222, An act relating to miscellaneous judiciary procedures.


Pursuant to Chapter II, Section 11 of the Vermont Constitution, I am returning S.222, An act relating to miscellaneous judiciary procedures, without my signature because of my objections described herein.

This bill purports to make several technical amendments related to civil and criminal procedure statutes. However, it makes substantive changes to the laws regarding video conferencing of arraignments and other appearances before a Court officer, and modifies regulations for marijuana dispensaries, and sealing and expungement of records.

Of primary concern are the changes to video conferencing of arraignments and other appearances before a Court officer. I understand the Judiciary was quite clear with both the Senate and House Judiciary Committees regarding its desire to proceed with this tool to facilitate Court administration. I am concerned the Legislature has disregarded the obvious separation of powers issue. Chapter II, Section 30 of the Vermont Constitution provides, in relevant part: "The Supreme Court shall have administrative control of all the courts of the State..." The Vermont Supreme Court has held the "Judiciary must control the 'management of the courts' to fulfill its function of providing justice to those who appear before us." Wolfe v. Yudichak, 153 Vt. 235, 255 (1989). One of the necessary aspects of court administration is the discretionary aspect of allocating judicial resources and this bill removes this tool from the purview of the Judiciary.

In 2015, the Judiciary was asked by the Legislative and Administrative branches to come up with structural savings to address anticipated budget shortfalls. The Judiciary identified the high cost, risk to safety, and scheduling challenges of prisoner transports in Vermont as factors caliing for innovation regarding prisoner appearances.

The Judiciary undertook a pilot project to conduct video appearances in the Chittenden County criminal division and associated Department of Corrections facilities. In Decemb er of 2017, the pilot project expanded to the Bennington court and Marble Valley Correctional Facility and I understand expansion is currently underway in the Windham court and the Southem State Correctional Facility.

In the interim, these pilot projects have reduced the costs and risks associated with transporting individuals between correctional facilities and the courts. The system has been in effect for almost three years without a single court challenge, and the numbers show since July 1, 2017, when defendants were given the option of in-person or video arraignment, they overwhelmingly chose video. I understand the Judiciary has worked to address the concerns of the defenders regarding their ability to communicate with their clients and made improvements to both the technology and confidentiality in the facilities.

This bill would eliminate the ability of the Judiciary to provide video conferencing as an effective tool for improving efficiencies and allocating scarce resources unless either the Defender General and the Executive Director of the Department of States Attorneys and Sheriffs jointly certify the video conferencing program in use at a facility adequately ensures attorney-client confidentiality and the client's meaningful participation in the proceeding or with the approval of defense counsel, or in the case of an unrepresented defendant, consent. This effectively enables two Executive Branch officers to usurp the authority of the Judiciary to effectively manage Judiciary resources; this constitutes an unacceptable violation of the separation of powers.

Video arraignments have been challenged on a variety of constitutional grounds in a number of states, including New Hampshire, and have been upheld as a reasonable allocation of scarce court resources. The appropriate venue for a constitutional challenge to video conferencing is in the courts of this State, not through the legislative process.

As noted, based on the objections outlined above, I cannot support this legislation and must return it without my signature pursuant to Chapter II, Section 11 of the Vermont Constitution.


Philip B. Scott