Senate Judiciary hears expert, public concerns about bill allowing suits against federal officials

The Vermont Senate Judiciary Committee on March 26 heard expert and public testimony on a proposed law that would let people in Vermont sue federal officials for violations of the U.S. Constitution. Professor Jim Fander of Northwestern University School of Law said the draft tracks the language of 42 U.S.C. § 1983 but expands coverage to “official action under color of federal law.”

Fander told the committee the bill would create a state cause of action analogous to § 1983 but limited to constitutional claims. “It applies not only to official action under color of state law, but also applies to official action under color of federal law,” he said, explaining that the draft omits references to federal statutes and focuses on constitutional privileges and immunities.

Why it matters: supporters say the statute fills a gap left by federal jurisprudence. Fander reviewed judge‑made remedies such as Bivens and ex parte Young, and said the Supreme Court has in recent years urged legislatures, not courts, to provide causes of action for some constitutional claims. Several states — including California, Massachusetts and Illinois — have similar statutes or proposals, he said.

Committee members pressed witnesses on federal preemption and the Westfall Act, which amends the Federal Tort Claims Act. Fander said existing decisional law makes outright preemption a difficult claim and noted the Westfall Act contains a savings provision for constitutional claims. He recommended that adopting language similar to § 1983 has the advantage of relying on a well‑developed body of law for interpreting defenses and immunities.

The Department of Public Safety raised practical concerns about the statute’s effect on state and local employees. “The issues of this bill as applied to federal officials is something that the Department of Public Safety doesn't have a direct interest in because we're obviously more focused on the impact of this on state and county and local officials,” Dr. Jones said, urging clarity so liability exposure for state employees remains co‑terminous with existing § 1983 practice.

Members and public commenters focused on qualified immunity and whether the draft should explicitly import the same defenses available under § 1983. A Montpelier commenter representing an organization stated in testimony that the draft may be too narrow and sought clarification on whether the bill would allow suits to proceed in Vermont rather than be dismissed in federal court.

Thomas Roland, who identified himself in testimony as "district 13," said the draft should ensure that local officers are not compelled to carry out unconstitutional federal directives without a way to decline and seek redress. “If our officers here are not allowed to commit unconstitutional acts as well, it seems that the 849 would be much stronger,” Roland said in remarks to the committee.

Several witnesses and submissions cited by Fander — including a memo from Protect Democracy United — recommended expressly preserving the defenses available under federal § 1983 litigation so the statute would avoid a preemption challenge and not alter liability exposure for state employees.

No final action was recorded in the transcript. Committee counsel returned to guide members through the draft language and the committee anticipated further deliberation.

What’s next: the committee will continue review of the draft; witnesses said federal litigation likely will test any state statute’s scope and defenses if the bill becomes law.