Judiciary committee approves amendment to H.118 removing “particular” from protected-class language

The Judiciary Committee approved an amendment to H.118 on Feb. 5 that removes the word “particular” from language describing a person’s actual or perceived membership in a protected category, the committee's legislative counsel said.

Ben Novogrovsky, legislative counsel to the committee, told members the change appears on page 1, line 11, and is mirrored on page 2, line 4 of draft 1.1. "On page 1, line 11, the word particular has been removed from a group of particular persons. So now it would just read, another person's or group of persons actual perceived membership in a protected category… and then again, the same changes reflected on page 2, line 4," Novogrovsky said.

Committee discussion centered on how "perceived membership" would be interpreted in practice and on constitutional questions raised by witnesses and members. Novogrovsky said perceptions would be established "based on a variety of factors," giving an example used in the discussion: outward indicators such as a mezuzah on a doorframe might lead someone to be perceived as Jewish even if they were not.

Several members said the constitutionality of the enhancement language could be litigated if challenged. One committee member who spoke in favor of moving the bill forward acknowledged uncertainty after reviewing case law but said the committee heard compelling testimony on the bill's goals and that legal questions could be resolved in court. That member said they were "comfortable that we have very good arguments that this is constitutional," noting the matter could reach the Vermont Supreme Court or higher.

Members also discussed prosecutorial impact and sentencing. A committee member summarizing conversations with state attorneys said the enhancement may be most consequential for underlying offenses that do not already carry long sentences: "If the underlying crime is more than five years, then we may not choose to… the enhancement may not do much in a sense for sentencing… I think that's the point, that this is really in some ways for those crimes that do not already carry a really heavy… penalty," the member said.

The committee approved the amendment and then voted to advance draft 1.1 of H.118. The amendment and the committee's report were moved and seconded; final approval was taken by voice and a subsequent roll-call-style verbal confirmation of members. Members who were named during the confirmation included Nolan, Redknapp, Roseland, Harvey, Rachelson and Chrissy, each recorded as voting yes during the verbal confirmation.

The bill sponsor and committee agreed to coordinate next steps on the floor; a committee member said Anne Donahue would introduce a related item, H.26, shortly after floor action.

The change adopted in draft 1.1 narrows a specific adjective from the bill's hate-motivation language but leaves the statutory concept of "actual or perceived membership" intact. Committee members and counsel said questions about evidence of perception and constitutional limits would likely be resolved through litigation if the provision is challenged in court.

Votes at a glance - Amendment to remove the word "particular" from H.118 (draft 1.1): approved by voice vote; exact tally not specified. - Committee approval to report draft 1.1 of H.118: approved by voice vote with verbal confirmation of members; named yes votes included Nolan, Redknapp, Roseland, Harvey, Rachelson and Chrissy.

Ending The committee reported draft 1.1 of H.118 to the floor and scheduled related business; members said legal tests about perception and mens rea would likely be addressed in subsequent litigation if challenges arise.