"Scribblings": An Occasional Newsletter from the Legislature 
By Rep. Thomas F. Koch Barre Town

Amid the many bills, resolutions, and ideas floating around the Statehouse, some are inevitably worse than others. This year, there are some particularly bad ones, and it is with regret that I report that some of them are getting serious attention and may even become law. So the theme of this "Scribblings" is what kind of foolishness is this?

The Senate has taken up a proposal to decriminalize marijuana. The debate is driven by a very politicized dispute between Governor Douglas and Windsor County State’s Attorney Bobby Sand over the handling of a felony marijuana charge brought against a Windsor County attorney, as well as by public perception that scarce resources are being used to prosecute and incarcerate people for minor drug offenses.

In the Windsor County case, the defendant was charged with possession of 2 ½ pounds plus 32 growing plants of marijuana, a huge amount, which upon conviction could incur prison sentences of five years and fifteen years, respectively. Because it was a first offense, the state’s attorney referred the case to court diversion, which means there was no actual prosecution of the case. The governor publicly criticized that decision, and the ensuing war of words escalated in a partisan manner until both sides finally declared a truce.

The debate then moved to the legislature, driven by proponents of more lenient laws relating to marijuana, including some who would actually legalize some amounts of pot (and, one might suspect, a few other drugs as well). The suggestion is that we are wasting a substantial amount of resources enforcing marijuana laws and incarcerating people for simple possession of small amounts of pot. But while there may be a public perception that we are wasting resources, what is the reality?

At a public hearing last week, Washington County State’s Attorney Tom Kelly tried to set the record straight. First, he said, each state’s attorney is in charge of allocating his or her own office’s resources, and each state’s attorney can exercise discretion in prosecuting or not prosecuting marijuana offenses. If there is a logjam of marijuana cases in a particular office, it is not the fault of the law, but the fault of the state’s attorney. Finally, he added that there is no such logjam in his office, and he does not feel excessively burdened by marijuana cases.

Some argue that marijuana should be treated more like alcohol, eliminating the potential for jail time, as we did for public intoxication years ago. Now there’s a success story to emulate!! Alcohol is and always has been the most prevalent and destructive drug we deal with, and suggesting that we treat marijuana like we treat alcohol makes no sense to me whatsoever.

Then there is the additional public perception that we have a lot of people in jail for simple possession of marijuana. I decided to check the facts, and what I learned is that earlier this week (the statistics can change from day to day), there were 11 people sentenced to jail in Vermont for simple marijuana possession. But the significant fact is that every one of them was in jail primarily for some other, more serious, offense, and marijuana possession was simply an additional offense. The truth is that nobody last Monday was serving time only for conviction of simple possession of marijuana, and our prisons are not crammed with people who have been convicted solely for possession of pot!

I do not disagree that prosecutors should exercise discretion in prosecuting marijuana cases. And in many cases, referral to the diversion program is entirely proper.

But in order to use diversion, the prosecutor needs something to divert the defendant from, and without at least the threat of incarceration, prosecutors will lose all leverage.

Furthermore, one of the legitimate functions of law is public education, and perhaps the damage this debate is doing is in the minds of our young people. A friend who happens to be a youth counselor said to me last week that he had been discussing marijuana use with some of the young people he works with. As he tried to underscore the risks of drug use in general and marijuana use in particular, the kids responded, "What do you mean? The legislature is going to legalize pot anyway!"

Public perception. What are we doing? What are we thinking? What message are we sending to our young people?

Then there is the subject of data mining, which is the practice of the pharmaceutical industry trying to determine which drugs physicians are prescribing, and then using that information to approach the physicians and persuade them to prescribe a particular manufacturer’s drug instead. It is a practice that I do not like and believe should be outlawed or severely restricted.

The problem is that the State of New Hampshire was the first to outlaw data mining. They got sued, and last spring the federal district court in New Hampshire declared their law unconstitutional. That just happened to be the same week our legislature was about to vote on a copycat data mining law. Faced with the likelihood that a copycat law in Vermont would meet the same fate as New Hampshire’s law, the health care committee pulled the bill back into committee and, with the help of the Attorney General, "tweaked" the bill, which the Attorney General then pronounced "defensible."

There were those of us who urged caution and suggested that we ought to wait until the New Hampshire case had fully run its course through all appeals before adopting a law in Vermont. We suggested that the tweaked version was not so different as to avoid a court challenge, and that such a challenge—win or lose—would be very expensive. Nevertheless, the majority proceeded full steam ahead and voted for the bill.

Meanwhile, Maine also adopted a similar law, less strict than either New Hampshire’s or Vermont’s. Not surprisingly, the pharmaceutical industry sued Maine, and the federal district court in Maine, concluding that the drug companies would likely prevail at a trial on the merits, issued a temporary injunction preventing Maine’s law from taking effect.

Vermont has now been sued as well, and it is costing us dearly. The Attorney General has seven attorneys in his civil litigation division, four of whom are known to be working on this case, at least part time. That is a substantial allocation of limited resources. In addition, the budget adjustment bill that passed the House this week contains $117,000.00 to pay expert witnesses for this case, and the case is just beginning.

The Attorney General has now come to the legislature suggesting some amendments to make this "defensible" law even "more defensible!" Seeing the handwriting on the wall, the AG is asking that we re-write the law before we lose the case! But even with these amendments, the AG now advises that this is "an uphill fight."

So the question is why are we looking for this fight in the first place? What do we have to gain? The theory is that if we can prevent data mining, then we can prevent the use of the data for marketing purposes, and if we can restrict marketing and advertising, we can drive down the price of drugs. The trouble with that theory is that it is untested, and as the New Hampshire court concluded, there is no evidence that it will work.

If our only gain is speculative cost savings, what are the risks? First, the lawsuit will be expensive just to present Vermont’s case. The current tab of $117,000.00 for expert witnesses will undoubtedly grow, and lawyer time, depositions, travel, and other expenses need to be considered. Half a million dollars is not an unreasonable estimate. And if we lose, the law requires that we reimburse the drug companies for their attorney fees and other expenses in challenging the law. We need to remember that just a year ago, we lost a challenge to our campaign finance law, and we had to pay $1,500,000.00 to the challengers. We could end up doing so in this present litigation.

I have a suggestion. Rather than amend the data mining law, repeal it! The drug companies would have to drop their lawsuit, and we could cut our losses. Then wait to see how the New Hampshire and Maine cases finally turn out after all appeals have been taken. That should give us some pretty good guidance as to what we can and cannot do to limit the practice of date mining. Once we have that guidance, re-enact a law that follows the court’s guidelines and takes the maximum permitted action to restrict data mining. That way, we may avoid a new lawsuit, and even if we do get sued, the new law will be most likely to survive the challenge. I intend to offer such a repeal amendment next week, but I predict that I will not be successful. It seems that we enjoy being sued!

Finally—at least for this week—there is the lead paint bill.

Lead is a known poison, and in children, it can cause developmental disabilities, low IQs, and other health problems. The greatest source of exposure to lead is in paint manufactured before 1978; dust or flakes of paint inhaled or ingested can result in elevated levels of lead in one’s blood. So in 1996, legislation was adopted requiring sellers of homes to disclose to buyers any knowledge of lead paint hazards; it also required landlords to perform "essential maintenance practices" at least annually, to minimize exposure to lead hazards. The result has been a substantial reduction in the prevalence of elevated blood levels of lead in Vermont’s children.

But our children are not one hundred percent lead free, so now the Attorney General and others want to enact additional requirements. Never mind the fact that we did not make any substantial efforts to enforce the 1996 laws until 2004, and that greater enforcement would result in greater compliance. Forget about parental responsibility. Don’t worry about cost. And above all, pay no attention to the concept of "affordable housing!" We need more laws, until we have completely wiped out lead paint hazards!

First, the bill sets up numerous educational and licensing requirements for persons working on buildings containing lead paint. There are categories for "lead contractor," "lead abatement worker," "lead designer," "lead risk assessor," "lead-safe renovator," and "lead supervisor." Each needs to complete "an accredited training program approved by the department" and have a current license issued by the department. The extent of training required, and the authority of the various types of licensed "experts" remains to be determined by the health department!

The bill then goes on to say "No person shall for compensation of any kind engage in any activity likely to disturb more than one square foot of lead-based paint without first registering or obtaining a license from the commissioner, as provided in this section." And yet another section reads, "No person shall perform, or hire another person to perform, any work for compensation of any kind in any target housing or child care facility if the work is likely to disturb more than one square foot of lead-based paint unless the person hired holds a current registration or license issued by the department applicable to the work to be performed."

What this means is that if you "disturb more than one square foot" (i.e., sand or scrape a wall in order to repaint) of any surface containing lead paint, even in your own single-family house, the work needs to be done by a person who has been certified as a lead paint specialist! Hiring your own son to paint your house will now be illegal, unless he has taken a course in lead paint management! More likely, you will end up hiring a professional house painter, educated and licensed by the Vermont Department of Health, and you can only imagine what the increased demand for painters will do to the prices they will charge!

Will seniors on fixed incomes be able to maintain their homes, or will they just let them fall into disrepair? What will landlords charge for rent in order to cover the expenses of maintenance and liability insurance? But who cares? And who is listening? Let’s not be confused by facts, homeowners’ rights, cost, or practicality. Lead is bad, and we need a new law! And by gosh, we’re going to pass it!

I wish I cold tell you that this exhausts the list of foolish ideas. Alas, no such luck. It’s just that I’m out of space. And the sooner the legislature runs not out of space, but out of time, the safer the people will be. In too many areas, this place is being run by zealots—facts and reason make no difference. Just take an idea and run it through, with no concern for the consequences.

I just hope the governor has a lot of ink in his veto pen.