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Committee hears H.849 to allow state‑law suits against federal officials for constitutional violations
Summary
Counsel told the Senate Judiciary that H.849 would create a state cause of action for violations of Vermont constitutional rights against state, local, and federal officials; defenses analogous to 42 U.S.C. §1983 (including qualified immunity) would remain available and cases could still be removed to federal court.
Hillary Charter, Office of Legislative Council, told the Senate Judiciary on April 8 that H.849 proposes a state‑law cause of action allowing suit against government officials — state, local or federal — who violate Vermont constitutional rights. Charter said the bill directs courts to treat defenses available under the federal analog (42 U.S.C. §1983) as available to defendants in the state cause, and that the legislature’s intent is that courts construe the state cause consistently with federal precedent where appropriate.
Committee members asked whether the bill would meaningfully change defendants’ existing defenses. Charter said it would not eliminate defenses: "Those defenses are still available," and qualified immunity remains a procedural defense that can be raised and decided by the court. The panel discussed Vivven (Bivens) jurisprudence and whether federal officers could be sued in state court under the new state cause; Charter said some federal‑actor claims are constrained by existing Bivens doctrine and said several factual scenarios that courts have historically limited would remain legally complex.
Members also discussed procedural effects. Charter confirmed that defendants may remove cases filed in state court to federal court when federal‑question jurisdiction or other removal statutes apply, and emphasized that removal is a defendant’s procedural right that federal courts then resolve. Committee members asked practical questions about how qualified immunity would be resolved and whether this bill would change removal dynamics; Charter said removal remains likely in many cases involving federal officers.
After questions, a motion was moved and the committee recorded votes: Senator Norris voted no; Senators Baru, Matoss, Vioski and Fashen voted yes. The committee reported H.849 out of committee following that vote.
The committee asked counsel to provide follow‑up research; counsel offered to do additional case‑law review if members wanted more detail about the application of Bivens‑type claims to protest or search‑and‑seizure contexts.
Next steps: the committee reported H.849 and counsel will supply additional case citations and clarifications if requested.
