ALASKA

Pam Finley

Two issues of general interest arose during the 2011 session.  First, the House wanted to adjourn on the 90th legislative day in accordance with AS 24.05.150(b), which was enacted in a 2006 initiative. The Senate  preferred to have up to 121 days in the session, as allowed by art. II, sec.  8 of Alaska's Constitution.  The House invoked art. II, sec. 10 of Alaska's Constitution, which allows the governor to adjourn the Legislature if either house certifies that the two houses cannot agree on the time of adjournment.  This was the first time the provision of art. II, sec. 10 had been used in Alaska.  The governor adjourned the Legislature and immediately called a special session on certain designated bills.  The Legislature continued to work on those bills and eventually adjourned from its special session about the same time it would have adjourned under the constitutional 121 session limit.   Second,  the Senate Finance Committee wanted to include in the capital budget contingency and non-severability clauses that would have required all specified energy project appropriations to take effect if any were to take effect.  The governor took the position that the contingency and nonseverability clauses were unconstitutional because they infringed on the governor's line item veto power.  The Senate eventually decided to remove the clauses from the capital budget.

COLORADO

Attorneys in the Office of Legislative Legal Services read Colorado cases and prepare case annotations that are published in the Colorado Revised Statutes. Since legislators are presumed to know how the courts have interpreted the statutes, the office has begun a system to inform legislators of Colorado cases of interest that construe the statutes.Starting in October 2011, the office will send quarterly e-mails to legislators informing them of cases of interest, cases where the statute was construed or found unconstitutional, or cases overruling precedent. The office has developed a list of criteria for determining what cases should be covered in the notice of judicial opinions. The notices are sent to the legislators based upon the committees of reference.

The office also has started a blog, theColorado LegiSource, which is available at http://blog.lls.coloradogeneralassembly.us Written by the office's nonpartisan legal and support staff, the blog will discuss such things as legislative procedure and process, hot topics, legislator's rights and responsibilities, and recent judicial decisions and commentary. The blog has a reminder page and an Ask OLLS feature that allows legislators to submit questions to the office. A nine-member blog board solicits, writes and edits the blog features.

DELAWARE

Rich Dillard

Hot button issues update: All three were enacted into law.

The medical marijuana bill (SB 17 w/ SA 3, SA 4, HA 6 and HA 7)was signed on May 13 and went into effect on July 1, but the Department of Health and Social Services has a year to promulgate regulations to implement the distributions.
 

The bill making a comprehension revision of Delaware's drug laws (HB 19 w/ HA 1 and SA 1) was signed April 20 and goes into effect "on the first day of the fifth full month after which it is enacted into law." If my math is correct, that means September 1.

The bill authorizing gay marriage in all but name (SB 30)was signed May 11 at the Queen Theater (I'm not making that up) and will go into effect on New Year's Day.

Bill Drafting Note: Delaware's bills and amendments traditionally have been drafted as insert and/or delete, with a synopsis (not a legal part of the bill) giving context and/or explanation for the change(s). SB 63 w/SA 1 and HA 1 will change that as of next January by mandating instead a strikethrrough and underline for both bills and amendments. Synopses still will be used. How much of the statute or bill must be included in the bill or amendment was not stated in the legislation and may vary by drafter, at least for a while.

Redistricting Note: For the first time in the three redistrictings of the Senate since I started here, two senators have been put together in one district. One of the northern districts migrated south due to population changes.

FLORIDA 

Edith Elizabeth Pollitz

It's been a tight interim for the Division of Statutory Revision and folks doing committee work in Florida. The 2012 Regular Session falls two months early due to reapportionment. The statutes database came out on time despite a staff decrease in the reviser's office and a rather heavy legislation year. The new Statutory Revision Leagis system (first year working electronically was last year) is saving essential time since there are fewer people.  

ILLINOIS

Ronald P. Michel 

 While protests at military funerals have become a national topic of discussion, in large part due to the actions of the Westboro Baptist Church of Topeka, Kan., lawmakers across the country have wrestled with the issue of how to protect the privacy of grieving family members and simultaneously maintain constitutional freedoms. In Illinois, the Criminal Code of 1961 has prohibited certain disorderly conduct at funerals and memorial services by prohibiting noisemaking within 200 feet of any ingress or egress of a funeral site if the volume of the noisemaking is likely to be audible and disturbing to mourners at the funeral site. House Bill 180 expands the protections afforded to mourners at a funeral site by extending the 200-feet barrier to 300 feet. The law continues to ban picketing 30 minutes before to 30 minutes after funeral ceremonies. Governor Quinn signed the new bill into law at the Illinois State Fair on the fair's Veterans' Day. The law does not specify military funerals and, accordingly, applies to all funerals and memorial services.

Senate Bill 7 makes dramatic changes to the education system in Illinois upon becoming law. The new law changes the processes by which teachers are hired, evaluated and dismissed. Public schools in Chicago will have the option of lengthening the work and school day, as well as the work and school year. Whereas teachers previously received tenure after a number of years, now the process by which a teacher receives tenure will include evaluations during a probationary period. Among other provisions, the education reform measures make changes concerning collective bargaining, impasse and mediation and places additional conditions for teachers to strike. The shift allows teacher evaluations and dismissals to link more directly to performance standards and rely less on tenure.
 

LOUISIANA

Clifford Williams
This spring, in a special session convened in March, the Legislature tackled redistricting of its legislative districts and redrew the lines for the congressional districts. The House plan that was submitted to the U.S. Department of Justice provided that 29 of the 105 House districts would have a majority minority population. The Senate plan, also submitted to that department, provided that 11 of the 39 Senate districts would have a majority minority population. With the decrease in population, the number of Louisiana congressional districts was reduced from seven to six. All plans have been precleared by the Justice Department, as required by the Voting Rights Act.

The regular session, which was convened in April, was a "limited" session-what we call a "fiscal" session. Facing a large budget deficit and a pledge from the governor to veto any tax increases, the Legislature was hard-pressed to find a solution for this problem. The executive branch and the Legislature successfully fashioned a balanced budget, mainly using a three-pronged approach. The first of these approaches involved the use of federal funds to plug part of the hole. Second, certain money was moved from dedicated funds and placed in the general fund. Finally, various budget cuts were proposed by the Legislature and the executive branch. Of interest: Legislation enacted to renew a tobacco tax, set to expire on June 30, 2012, was vetoed by the governor. An attempt to override the governor's veto was unsuccessful. However, the proposal was cleverly attached to a Senate constitutional amendment and another item of legislation, originating in the Senate, which would provide for the statutory provisions. Both items were placed into conference, whereupon the proper language was ironed out and presented to the members for adoption. The governor did not veto, as it appears that the tobacco tax provisions were amended to provisions that had the backing of the administration.

MAINE

Marion Hylan Barr
LD 1589, "An Act To Criminalize Possession, Trafficking and Furnishing of So-called Bath Salts Containing Synthetic Hallucinogenic Drugs," was enacted during the First Special Session of the 125th Legislature as Public Law 2011, chapter 465, an emergency act effective Sept. 28, 2011. Less than three months earlier, the Maine Legislature enacted Public Law 2011, chapter 447, "An Act To Prohibit the Sale or Possession of So-called Bath Salts Containing Dangerous Synthetic Drugs," (formerly LD 1562), which also was an emergency act signed into law July 6, 2011. Since early spring 2011, the sudden prevalence of synthetic hallucinogenic drugs known as "bath salts" became alarming to law enforcement, emergency medical personnel, poison control centers, the public and the Legislature.

During the First Regular Session of the 125th Legislature, the Joint Standing Committee on Criminal Justice and Public Safety crafted an amendment that essentially treated these synthetic hallucinogenic drugs as if they were Schedule W drugs under the Maine Criminal Code. Schedule W drugs are the most dangerous, and the possession, furnishing or trafficking of these kinds of drugs are subject to the harshest penalties. The committee's unanimous amendment was adopted but then revised before finally being enacted due financial constraints; instead of funding the amendment adopted by the committee, the Legislature ultimately reduced all penalties, including making possession a civil offense instead of a criminal offense. Although the law banning bath salts took effect immediately, the continued and alarming increase in the number of reported cases of those using bath salts and committing other serious crimes related to that use- making them a danger to others as well as to themselves- led the Legislature to revisit its earlier actions. Governor Paul LePage introduced LD 1589, which proposed reintroducing the more severe penalties that were first adopted in the committee amendment to LD 1562. LD 1589 proposed that all penalties be criminal, although a first time possession was a Class D crime, becoming a Class C crime only if the person has a prior drug conviction. LD 1589 also included an important change that authorizes courts to impose probation as a sentencing alternative for those first-time Class D possession cases. This is consistent with other Class D drug offenses under the Maine Criminal Code, and it means that courts may order treatment as part of probation conditions. During the debate on LD 1589, much of the Legislature's discussion again centered around costs, but in addition to judicial and corrections costs, the Legislature also talked of how best to provide the necessary three-prong approach to battling bath salts: education, prevention and interdiction. ;

In the midst of Maine's ongoing work to tackle its growing bath salts epidemic, the U.S. Drug Enforcement Agency (DEA) used its emergency scheduling authority under the Controlled Substances Act (CSA) to issue a temporary ban on three synthetic cathinones (bath salts): 4 - methylmethcathinone, 4-MMC (mephedrone); 3, 4 - methylenedioxypyrovalerone, MDPV; and 3, 4 - methylenedioxymethcathinone, MDMC; (methylone). The notice of intent to temporarily control was published in the Federal Register on Sept. 8, 2011. The action was based on a finding that placement of these synthetic cathinones into the Schedule I of the CSA is necessary to avoid imminent hazard to the public safety. This action makes possessing and selling these chemicals-or products that contain them- illegal in the United States for at least one year while the DEA and the U.S. Department of Health and Human Services further study whether these chemicals should be permanently controlled. Any final order will be published in the Federal Register (not prior to Oct. 11, 2011) and will impose the administrative, civil and criminal sanctions available for Schedule I substances under the CSA. ;

Because of the U.S. DEA's actions, the Maine Legislature will likely revisit its statute banning bath salts; if the federal government schedules these synthetic hallucinogenic drugs, the tate likely will follow, although scheduling will not alter the existing penalty structure. In the meantime, the penalties treating these drugs as though they were as dangerous as Schedule W drugs will be applied, and the Legislature will continue to work with law enforcement agencies, medical professionals, substance abuse treatment providers and community members to find resources to create and implement a three-prong approach.

MARYLAND

Sherry Little
Before the January 2011 90-day Maryland General Assembly session, estimates were that fiscal 2012 revenues would be $2 billion less than the spending required to maintain current services. To meet the constitutional obligation of balancing a budget for the fiscal year ending June 30, 2012, the governor and General Assembly had to deal with the $2 billion shortfall.

The challenge was made even more daunting because federal stimulus money the state had received under the American Recovery and Reinvestment Act of 2009 was declining by $1.2 billion, so the state would have to come up with this money in FY 2012. The Assembly's Spending Affordability Committee also had recommended that the FY 2012 budget contain spending reductions of 33.33 percent in the structural deficit between ongoing general fund revenues and spending.

In spite of these obstacles, the General Assembly successfully resolved the $2 billion shortfall for FY 2012 and adopted a balanced budget of $34.2 billion. The solution relied in part on almost $600 million in surplus funds from FY 2011. In addition, the governor and General Assembly made budgetary cuts to reduce the projected FY 2012 structural deficit by $721 million, or 36.9 percent, exceeding the recommended goal by more than 3.5 percent. Most of the reductions came from actions to limit spending, notably imposing a Medicaid hospital assessment to reduce general funds for Medicaid, restructuring state employee and teacher pension benefits, maintaining level funding for the state's per-pupil aid for K-12 education, slowing growth in the state's share of community college costs, and increasing state retirees' share of health care costs.

The State's general fund cash balance was estimated to be $42.9 million at the end of FY 2012, in addition to 5 percent reserves totaling $681.5 million in the Rainy Day Fund. However, Maryland ended FY 2011 with a surplus that was nearly $350 million higher than expected due primarily to an increase of 7.5 percent in individual tax revenues. The higher than anticipated fiscal 2011 surplus will be available to help close the $1 billion estimated budget shortfall for fiscal 2013. Maryland remains one of the few states in the nation with a AAA bond rating from all three major rating agencies.

During the 2011 session, the General Assembly also passed legislation to increase the sales tax rate on the retail sale of alcoholic beverages by 3 percent (from 6 percent to 9 percent), effective July 1, 2011. This increase is expected to boost annual revenues by $84.8 million in FY 2012, growing to $90.7 million by FY 2016. In FY 2012, $15 million of this increased revenue will be used to fund a waiting list initiative for those with developmental disabilities; and $47.5 million will be used for public school construction projects in local jurisdictions, with priority given to projects for older school buildings or projects that can be completed in one year, among other considerations.
 

MINNESOTA

 Karen Lenertz

The Minnesota Legislature met in regular and special sessions in 2011. A state shutdown was ended on July 19, 2011, when in special session the Legislature settled on a budget for the 2012-2013 biennium. While the main focus this year was the budget, some other legislation discussed in the Legislature this year is highlighted below.

The Health and Human Services omnibus bill had a number of notable reforms. In Laws 2011, First Special Session, Chapter 9, article 7, section 53, the Legislature passed a medical assistance reform waiver, directing the commissioner to develop a proposal and waiver application to the federal Department of Health and Human Services that seeks numerous reforms of state delivery of medical assistance. Due to the budget deficit, the bill also contains several provider rate decreases and repeals the rebasing of medical provider payment rates. Finally, the bill prohibits liquor stores, tobacco stores, gambling establishments and tattoo parlors from allowing the use of welfare EBT transactions at their places of business.

In Laws 2011, chapter 88, a state constitutional amendment is being proposed to the people at the November 2012 general election. If adopted, the Minnesota Constitution would be amended to provide that only a union of one man and one woman shall be valid or recognized as a marriage in the state.

Laws 2011, Chapter 5, authorizes the creation of alternative teacher license programs by a school district or charter school in partnership with a college or university with a Board of Teaching-approved alternative teacher preparation program or in consultation with a college or university in partnership with an education-related nonprofit organization. The purpose of the legislation is to improve academic excellence and ethnic and cultural diversity in the classroom and close the academic achievement gap.

In Laws 2011, Chapter 91, the electronic process for charging a person with a crime is expanded to apprehending, prosecuting or adjudicating juveniles or adults for a crime, delinquent act or petty misdemeanor. It also will be used by the Department of Public Safety when administrating license revocations under the implied consent law.

In Laws 2011, Chapter 24, the State Agency Value Initiative (SAVI) was established to allow a state agency keep 50 percent of any unspent funds at the end of a budget cycle. The funds then carry over into the next biennium, and agencies and agency employees then can choose how to spend the money. A participating agency will establish a peer review committee to give the employees a say in how the savings are spent. The funds must be used for projects that support the agency's purpose. Effective June 30, 2013, the law expires June 30, 2018.

During the 2011 legislative session, the governor vetoed Senate File 509, which would have required all Minnesota voters to present a valid state-issued photo identification with the voter's current address before casting a ballot. Those in nursing homes, battered women's shelters and similar facilities were exempted from the requirement to show photo identification.

NEBRASKA

Scott Harrison
In 2006, the Nebraska Legislature enacted LB 1024, which provided for creation of a new political subdivision, the learning community. A learning community is a grouping of school districts governed by an elected council. Member school districts maintain their separate existence. Learning communities were given authority to levy a property tax. One learning community was created that included school districts in two counties of the state, both large population centers. The learning community has levied a property tax, and the revenue will be divided among the member school districts under a statutory formula. A lawsuit was filed seeking a declaration that the tax levy was a state property tax, which is prohibited by the state constitution. On Sept. 23, 2011, the district court judge ruled the tax was a state property tax.

The judge applied the following two-prong test developed by the Nebraska Supreme Court in other cases: 1) Was the property tax levied by the state? and2) Was the property tax levied for a state purpose? The judge found that a tax levied by a political subdivision could be considered as being levied by the state, based upon a prior Nebraska Supreme Court decision. The judge then reviewed legislative history and determined that the purpose of the legislation was to "convert the traditional state function of providing 'equalization aid,' . . . into a local function supported by property tax funds." The judge distinguished another case that provided school funding based upon a grouping of school districts.

The ruling has created a budgetary problem for the learning community and member school districts for the next tax year because the tax levies are to be certified soon. The district court decision will be appealed and, according to newspaper articles, a stay of the decision will be requested as part of the appeal. The case is Sarpy County Farm Bureau v. Learning Community of Douglas and Sarpy Counties, DOC CI-10 Page 2509.

VIRGINIA

Ellen Porter

The 2011 Regular Session adjourned sine die on February 27 after 47 days. Although a number of measures passed the General Assembly, the tenor of lawmakers' efforts was dampened by awareness of fiscal limitations.

On June 9, the General Assembly convened for a Special Session to consider redistricting legislation. The bills drawing new districts for the House of Delegates and the Senate were signed into law by the governor and submitted by the Attorney General's Office to the Department of Justice for approval pursuant to Section 5 of the Voting Rights Act. The attorney general also filed suit in the U.S. District Court for the District of Columbia asking for preclearance of the plans. The Department of Justice precleared the House of Delegates and Senate redistricting plans on June 7-just in time for the general election this November. However, the Republican-controlled House of Delegates and the Democratic-led Senate appear to be at odds over the redistricting of Virginia's 11 congressional districts. Legislation to establish such districts remains in a conference committee.

On July 29, the General Assembly convened yet again for election of Supreme Court of Virginia justices, Court of Appeals of Virginia judges and Circuit Court judges. Although the state faces dozens of judgeship vacancies and a considerable demand due to a backlog of cases, funding for all the positions may not be available.

To monitor legislative activity, please visit the Virginia General Assembly website at http://legis.state.va.us/.

WASHINGTON

Jeffrey Mitchell

The overriding issue for this year's 105-day regular session, which ended on April 24, was adoption of a 2011-13 operating budget. Because of the continuing economic malaise and its efffect on state revenues, legislators were confronted with a budget shortfall of approximately $5 billion. As might be expected, an additional 30 days were needed as part of a special session to pass a budget and the related implementing legislation. Unfortunately, revenue forecasts over the summer have lowered projected 2011-13 revenues by an additional $1.8 billion, which will require further budgetary reductions. Because of the severity of the situation, Governor Gregoire has called a special session beginning on November 28.

WEST VIRGINIA

Mark McOwen

The 80th Legislature's first Regular Session began Jan. 12, 2011, and concluded March 18, 20l1, with passage of 191 bills out of 1,894 introduced. General law legislation passed this session includes bills that expand the state's ethics act to require candidates for state office to report information relating to their spouses and to prohibit certain professional employees of the executive, judicial and legislative branches from lobbying for one year after leaving employment (HB 2464); add products known as "K2," "BZP" and "Spice," and synthetic cocaine-like substances, including substances known as "bath salts" or "plant feeder," to the list of prohibited controlled substances (HB 2505); provide regulations for operation of ziplines and canopy tours in the state (HB 2532); require insurance coverage for autism spectrum disorders (HB 2693); establish special primary and general elections for gubernatorial vacancy (HB 2853)(see below); provide pay raises for public employees (HB 2879 and Budget Bill); reduce sales tax on food by 1 percent (HB 2971)(see below); legalize hunting coyotes with a green-colored light (HB 3000); permitting liquor sales on election day (HB 3100); establishing the West Virginia Health Benefit Exchange (SB 408); provide tax credits for certain Marcellus Shale and other natural gas related industries (SB 465); and authorizing municipalities to create Deferred Retirement Option Plans. ;

Since then, the governor has convened two extraordinary sessions, both in August. The first extraordinary session was convened primarily to consider redistricting legislation for the state's three congressional districts and for its state senatorial and delegate districts. All three bills passed, but the delegate district bill was vetoed for technical reasons, which were corrected during the seconc extraordinary session convened two weeks later. Another enactment from the first extraordinary session was Committee Substitute for SB 1001, which completely eliminates sales tax on food by July 1, 2013, and increases funding for the state's rainy day fund.

The last two reports from West Virginia have recounted the unique events that have unfolded since the death in office of U.S. Senator Robert C. Byrd on June 28, 2010. Then-sitting Governor Joe Manchin III has since been elected to fill Senator Byrd's unexpired term. The current State Senate President Earl Ray Tomblin, who, since then-Governor Manchin's resignation created a vacancy in the office, has been "acting" as governor under the state Constitution, was nominated in a special May 14, 2011, primary election to run against two opponents in a special general election to be held Oct. 4, 2011, to fill former then-Governor Manchin's unexpired term. Regardless of the outcome of the race in 2011, however, a new election for the office of governor for the term beginning in 2013 will be held in 2012; the filing deadline for that race will be about midway during the second Regular Session of the 80th Legislature. Likewise, Senator Manchin's seat also will be up for election.

Meanwhile, in the interim period, the presiding officers of the Senate and House of Delegates have formed a new joint committee to work on issues relating to regulating drilling for natural gas in the Marcellus Shale, as well as property rights and other related matters. Other issues with potentially significant funding challenges that are being addressed include overcrowded prisons, the impact of substance abuse, roadway and other infrastructure maintenance, and public pensions and other post-employment benefits. The Legislature's monthly interim study meetings continue and will conclude immediately before the next regular legislative session. A complete list of study topics is available at the Legislature's website.

Members are not up for election this year. The second Regular Session of the 80th Legislature will convene Jan, 11, 2012, for 60 days. To monitor legislative activity, visit the West Virginia Legislature's website at http://www.legis.state.wv.us/. For toll-free access, dial 1-877-56LEGIS.