Bill As Introducedh.214

BILL AS INTRODUCEDH.214

1999Page 1

H.214

Introduced by Representatives Seibert of Norwich, Bristol of Brattleboro, Brooks of Montpelier, Heath of Westford, Jordan of Middlesex, Kehler of Pomfret, Kinsey of Craftsbury, Lippert of Hinesburg, Pugh of South Burlington and Westman of Cambridge

Referred to Committee on

Date:

Subject:Crimes and criminal procedure; discrimination; injunctive actions

Statement of purpose: This bill proposes to amend the Hate Crimes Act to allow the attorney general on behalf of a victim to bring an action for injunctive relief, compensatory and punitive damages, attorney’s fees and any other appropriate relief against any person who participated in or incited a hate crime. A victim of a hate crime or the attorney general on behalf of the victim could seek a court order similar to an abuse prevention order available to victims of domestic violence. Violation of the injunction is a criminal offense.

AN ACT RELATING TO CIVIL RIGHTS INJUNCTIONS

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1. 13 V.S.A. § 1457 is amended to read:

§ 1457. CIVIL LIABILITY AND ENFORCEMENT

(a) Independent of any criminal prosecution or the result thereof, the attorney general or any person suffering damage, loss or injury as a result of conduct prohibited by section 1455 or 1456 of this title may bring an action for injunctive relief, compensatory and punitive damages, costs and reasonable attorneys fees, and other appropriate relief against any person who participated in or incited such conduct.

(b) The attorney general may seek the imposition of a civil penalty of not more than $10,000.00 for each violation of law, including violations of any injunction issued pursuant to this section. For an intentional and continuing violation of a court order after a date set in the order, each day of violation shall be a separate offense.

Sec. 2. 13 V.S.A. chapter 33 is added to read:

CHAPTER 33. CIVIL RIGHTS INJUNCTIONS

§ 1458. DEFINITIONS

As used in this chapter:

(1) A “complainant” is anyone who has suffered damage as a result of a civil rights violation.

(2) A “civil rights violation” occurs whenever a person participates in or incites conduct prohibited by section 1455 or 1456 of this title.

(3) A “civil rights injunction” means an injunction or other order based upon a civil rights violation.

(4) “Damage” includes destruction or defacing of personal or real property, personal injury, or the receipt of threats of violence or threats of damage to property.

(5) “Protected category” includes race, color, religion, national origin, sex, ancestry, age, service in the armed forces of the United States, handicap as defined by 21 V.S.A. § 495(d)(7)-(11) and sexual orientation, and perceived membership in any such group.

(6) “Petitioner” includes the attorney general or a complainant who is seeking a civil rights injunction.

§ 1459. COMMENCEMENT OF ACTION AND HEARING

(a) The superior court shall have jurisdiction over proceedings under this chapter.

(b) Preliminary orders under section 1460 of this title may be issued by a judge of the district, superior or family court.

(c) Proceedings under this chapter may be commenced in the county in which the complainant or the defendant resides. Proceedings initiated by the attorney general also may be commenced in Washington County.

(d) The petitioner may seek a civil rights injunction by filing a complaint under this chapter. No filing fee shall be required.

(e) A preliminary hearing upon a complaint for civil rights injunction shall be scheduled as soon as reasonably possible, but in no event more than 10 days from the date of filing of the complaint. Service shall be made in accordance with section 1461 of this title.

(f) Forms for notices of hearing and orders shall be provided by the court administrator and shall be maintained by the clerks of the courts.

(g) The petitioner shall have the burden of proving by a preponderance of the evidence that a civil rights violation has occurred.

§ 1460. RELIEF

(a) If the court finds that the defendant has committed a civil rights violation, the court shall make such preliminary and final orders as it deems necessary to protect the public, the complainant and any aggrieved persons, including any of the following orders:

(1) An order to refrain from violating the civil rights of the complainant;

(2) An order restricting the defendant's ability to contact the complainant;

(3) An order prohibiting the defendant from coming within a fixed distance of the complainant, the complainant's residence or other designated locations where the complainant is likely to spend time;

(4) An order to refrain from violating the civil rights of others who are, or are perceived to be, members of the complainant's actual or perceived protected category.

(b) Upon motion of the attorney general or complainant, the court may extend any order for such additional time as it deems necessary. For such an extension, it is not necessary for the court to find that violation of civil rights has occurred during the pendency of the order.

(c) Every preliminary or final order issued under this section shall bear the following language: VIOLATION OF THIS ORDER IS A CRIME SUBJECT TO A TERM OF IMPRISONMENT OR A FINE, OR BOTH, AND MAY ALSO BE PROSECUTED AS CRIMINAL CONTEMPT PUNISHABLE BY FINE OR IMPRISONMENT, OR BOTH.

§ 1461. SERVICE

(a) A complaint, notice of hearing, and preliminary or final order issued under this chapter shall be served in accordance with the Vermont Rules of Civil Procedure and may be served by any sheriff, deputy sheriff, municipal police officer or state police officer.

(b) Civil rights complaints, notices of hearing and orders shall be served at the earliest possible time and shall take precedence over other summonses and orders other than abuse orders.

(c) Orders shall be served in a manner to reasonably insure the safety of the complainant.

(d) The person making service shall file a return of service with the court stating the date, time and place at which the order was delivered to the defendant.

(e) If service of a notice of hearing issued under section 1459 of this title cannot be made before the scheduled hearing, the court shall continue the hearing upon request of the petitioner for such additional time as it deems necessary to achieve service on the defendant.

§ 1462. PROCEDURE

(a) Notwithstanding any law to the contrary, proceedings commenced under this chapter shall be in accordance with the Vermont Rules of Civil Procedure and shall be in addition to any other available civil or criminal remedies.

(b) The supreme court shall establish rules consistent with this chapter that provide prompt access to relief.

(c) Police departments, sheriffs’ departments and state police district offices shall establish procedures for filing orders issued under this chapter and for making their personnel aware of the existence and contents of such orders.

(d) Any court that issues an order under section 1460 of this chapter shall transmit a copy of the order to the department of public safety civil rights protection database.

§ 1463. ENFORCEMENT

(a) Law enforcement officers are authorized to enforce orders issued under this chapter. Enforcement may include making an arrest in accordance with the provisions of Rule 3 of the Vermont Rules of Criminal Procedure.

(b) A law enforcement officer may rely upon a copy of any order issued under this chapter which has been provided to the law enforcement officer by any source.

§ 1464. PENALTIES

(a) Provided that notice was properly served in compliance with section 1461 of this title, a person who violates a civil rights injunction issued under this chapter shall be imprisoned not more than two years or fined not more than $2,000.00, or both.

(b) A person who is convicted of a second or subsequent offense under this section shall be imprisoned not more than five years or fined not more than $10,000.00, or both.

(c) Nothing in this section shall be construed to diminish the inherent authority of the courts to enforce their lawful orders through contempt proceedings.

(d) Prosecution under this section shall not bar prosecution for any other crime, including any crime that may have been committed at the time of the violation of the civil rights injunction.

Sec. 3. Rule 3(a)(8) of the Vermont Rules of Criminal Procedure is added to read:

(8) when the officer has probable cause to believe a person has violated a civil rights injunction issued by a court pursuant to Chapter 33 of Title 13.