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Panel weighs H.A.49 that would allow suits against officials for constitutional violations
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Summary
Legislative counsel and legal experts debated H.A.49 on March 18, a draft bill that would create a state civil cause of action modeled on 42 U.S.C. § 1983 and — controversially — extend remedies against federal officials; panelists warned of federalism and sovereign‑immunity challenges.
Legislative counsel briefed a committee March 18 on H.A.49, a draft statute that would create a civil cause of action in state law for violations of the U.S. Constitution and, uniquely in the draft, make that path available against state, local and federal officials acting under color of law.
"H.A.49 would create a cause of action for damages against state, local, or federal officials for violating the U.S. Constitution," counsel told the committee, explaining that the bill imports defenses available under 42 U.S.C. § 1983 and would make both monetary damages and injunctive relief available under a new chapter in Title 12.
Supporters, including an ACLU Vermont representative testifying for civil‑liberties groups, said the bill fills a gap in remedies for constitutional harms and urged parity across defendants to reduce litigation‑risk arguments. "ACLU Vermont strongly supports this bill," the witness said, arguing the draft is closer to a defensible structure than some alternatives being discussed elsewhere.
Legal officials warned of likely, complex federal‑law questions. "The attorney general doesn't have any enforcement authority nor does any state agency," Julio Thompson, assistant attorney general and co‑director of the civil rights unit, told the panel, and he outlined concerns about federal preemption, the Federal Tort Claims Act, the Westfall Act, and differences between state statutes of limitations and federal claims processes. Thompson also reviewed the Supreme Court's limited approach to creating constitutional remedies (Bivens doctrine) and said the court has repeatedly declined to expand such remedies, leaving questions for Congress.
Tom Zoney, identified as a chief superior judge, described H.A.49 as a policy bill and said legislative intent language can help courts interpret the statute. Several panelists suggested that, should a federal‑official provision be enacted, the state should expect early litigation and possible removal of cases to federal court.
The committee used the hearing to surface technical drafting choices — which defenses to import, how to set a statute of limitations, and whether the federal‑official language should be narrowed to specific categories such as federal law‑enforcement employees. No vote or final drafting decision was made at the session; counsel said the bill panel would follow up with more detailed materials on specific drafting options and case‑law issues.
