Colorado's big news is that we have a new director for the Office of Legislative Legal Services. After 38 years of service, Charley Pike is retiring. Charley has been the director since 2003 and served prior to that as the Revisor of Statutes. We will miss him a great deal and wish him an enjoyable retirement! Our new director is Dan Cartin. Dan has worked for the office for 21 years and has served in many capacities with the office, including as a team leader and a deputy director. We welcome Dan as our new director!
Each year, we usually staff four to six interim committees that study issues and propose legislation. This year, however, as a way to save money in the legislative budget, the General Assembly decided to not create any interim committees. Committees or task forces that do not receive state funding may meet voluntarily, but staff will not be provided for these meetings.
The office has created an online ethics tutorial, which is primarily aimed at teaching members of the Colorado General Assembly the various constitutional provisions, statutes and legislative rules that govern ethics in our state. Each page has a brief explanation of the laws and rules governing ethical conduct, a hypothetical scenario, a question and four answers, and links to the relevant ethics provisions. The ethics tutorial is accessible under legal topics at www.state.co.us/gov_dir/leg_dir/olls .
We have two updates from the July 2010 submission: the rumors about replacing the 5¢ bottle deposit with a 4¢ bottle nonrefundable fee were true. SB 234 makes the change as of Dec. 1, 2010 and the new fee is supposed to expire Dec. 1, 2014. The U.S. Supreme Court declined to hear Delaware’s appeal from the Third Circuit’s curtailment of its sports betting endeavors, so Delaware’s sports betting is officially limited to sponsoring parlay betting on pro football. Of course, that is still more than any other state east of the Mississippi.
A handheld cell phone ban while driving will take effect in January 2011. HS 1 to HB 229 includes many types of electronic communication devices and explicitly bans texting and e-mailing in addition to talking. There is a $50 civil penalty for a first offense. The law also preempts counties and municipalities from enacting anything stronger.
Edith Elizabeth Pollitz
The Division of Statutory Revision has transitioned to the new Leagis system for incorporating laws into the Florida statutes and producing various accompanying tables related to movement of the law. The summer production period was our first using the new system in place of literal cut and tape on cardstock. Leagis cut a huge amount of preparatory work and enabled us to clear out many file cabinets and give up storage space we no longer need. We were uncertain if we could get the new system up and tested adequately in time to use it for 2010 statutes. In order to use the system this year, we waived some testing requirements and had staff perform the testing normally handled by the contractor. There were some bugs, as could be expected, particularly with regard to transfer of the data to our online formats at the end of the process. However, Leagis does some very sophisticated sorting and incorporation of law material into statutes sections, adds law history entries automatically at the end of affected sections, and sets up footnote format easily. It also eliminates sometimes difficult-to-read handwriting and the cost of sending paper manuscripts to Prison Industries for archive scanning, since PDFs are created for the worked material in the new system. There was not time to complete development of the Florida Statutes Subject Index, Laws of Florida Index, and specialty indices on Leagis for the 2010 production period. User acceptance testing of that component is currently underway, however, both by the division’s indexers and the Division of Legislative Information for purposes of their citator. Once this final part of Leagis goes into production, the old mainframe can be discarded. The House and Senate have used Leagis for bill drafting for several years.
It’s good that we are gaining some efficiency through technology (although there were some expenses, too, because everyone needs two monitors to use the new system). Our staff is shrinking dramatically—from 25 people five years ago; to 20 at present, including the retirement of our “computer guru” on September 30. Due to a longstanding hiring freeze, we cannot replace those who retire (one of our technical editors—the folks who did the cut and tape and now manipulate data on-screen to produce the statutes—plans to leave in January, and another editor who plans to retire next summer is out on long-term medical leave). The computer will need to fill in for people in this scenario, although there is still plenty of work that is more than simply a computer function. It will be interesting to see how it all works out in the end.
The Second Regular Session of the Sixtieth Idaho Legislature convened on Jan. 11, 2010, and met through March 29, 2010. This session marked the return of the Legislature to Idaho’s newly restored and expanded Capitol Building, following a two-year construction period. As part of the Capitol expansion, underground atrium wings—with glass skylights that run the length of the central corridors and offer a view of the Capitol dome—were constructed on both sides of the existing Capitol. The wings provide additional space for state-of-the-art legislative committee hearing rooms and legislative offices.
During the session, despite some very difficult budget challenges, the Legislature introduced roughly 550 bills—fewer than the nine preceding sessions. Of those bills, 359 passed. The Legislature’s actions, in part, established a new stabilization fund for higher education, provided new election and voting reform measures, improved childhood immunization procedures, refined confidentiality statutes on public records, authorized new programs to battle invasive species, reformed endowment land processes, and developed a fund source for aquifer management.
A number of interim committee meetings have occurred since the Legislature’s sine die in March. The Natural Resources Interim Committee met for updates on the Eastern Snake Plain Aquifer and on the status of various cases involving water calls that are working their way through the court system. The Committee also received updates on a relatively recent federal court ruling that returned wolves in Idaho and Montana to the Endangered Species List having been delisted in May 2009.
Idaho’s Energy, Environment and Technology Interim Committee also met during the interim to discuss, among other topics, proposed geothermal legislation, an integrated resource plan, and load shaping for renewables and wind energy.
The First Regular Session of the Sixty-first Idaho Legislature will convene for an organizational session during the first week of December 2010; session will convene on Jan. 10, 2011.
During the spring legislative session, the Illinois General Assembly passed more than 600 bills pertaining to a variety of issues, including creation of sales tax and revenue bond districts and reorganization of the Metropolitan Pier and Exposition Authority.
To promote economic growth and tourism in southern Illinois, the General Assembly passed Senate Bill 2093. The law creates the Innovation Development and Economy Act. The Act authorizes counties and municipalities, with approval of the director of the Illinois Department of Revenue, to create sales tax and revenue bond districts (also referred to as STAR bond districts) within specific areas. Counties and municipalities may issue revenue and general obligation bonds to pay for project costs associated with development of a STAR bond district. Bonds may be paid from the incremental increase in the amount of revenue generated within the STAR bond district from designated state and local occupation and use taxes. The amount of the incremental increase is measured from the base year, the year immediately before the STAR bond district was created. The base amount of tax revenue continues to be distributed to those entities within the district that impose occupation and use taxes.
In response to the high cost of holding a convention at McCormick Place in Chicago, the General Assembly passed Senate Bill 28. As one of the largest convention centers in the United States, McCormick Place generates significant revenue for the City of Chicago and the state. Senate Bill 28 amends the Metropolitan Pier and Exposition Authority Act to attract and maintain conventions hosted at McCormick Place by reducing exhibitors' costs and restructuring the authority's governing body. The bill ends the terms of the current board members of the Metropolitan Pier and Exposition Authority, the body governing McCormick Place, and provides for appointment of a new board 18 months after the bill's effective date. During the period before the new board is constituted, the law provides for the appointment of a specifically named person as the trustee of the authority. The trustee is authorized to exercise the powers of the Authority Board and the board's chief executive officer. The law also provides for appointment of an interim board with veto power over the trustee.
Just when we thought coastal Louisiana was well on its way to recovery from the effects of hurricanes Katrina and Rita, the Deepwater Horizon well exploded, killing 11 people and spilling thousands of gallons of oil along the state’s southeastern coast. When the fishing grounds were forced to close, those whose livelihood depends upon those fertile fishing grounds and who were still recovering from the hurricanes’ effects now were thrust backward once more.
The BP well disaster, coupled with the projected $2 billion to $3 billion deficit, will make the 2011 Regular Session a contentious one. The Legislature also will tackle legislative redistricting in a special session before the regular session. After Mardi Gras and Easter, the capitol will not be a pleasant place. Forecasts indicate that we are at the edge of the cliff with no net to catch us. The governor indicated to the Legislature and citizens that there will be no tax or fee increases, so the budget must be reduced by other means. As always, higher education and health care will again face cuts. We are being told to enjoy Christmas, Mardi Gras, and Easter because legislative reapportionment and budget issues will put a damper on the spring and summer.
The projected budget deficit was a major issue of the Maryland General Assembly’s 2010 session. The governor withdrew nearly $1 billion in spending from the FY2010 budget in July, August and November 2009. Budgetary savings resulted from abolishing 533 positions and employee furloughs. Cutbacks were made to agency spending, local aid, capital projects and entitlement programs.
Against this background, the General Assembly enacted a $32 billion budget for FY2011, a decrease of $300 million below FY2010 spending. For the FY2011 budget, the governor and General Assembly closed the fiscal gap by constraining growth in the budget and one-time fund transfers. Federal stimulus funding from ARRA continued to play a central role in both the 2010 and 2011 budgets. Maryland remains one of the few states to have an AAA bond rating from all major rating services.
Education remained one of the highest priorities of the General Assembly. Aid for primary and secondary education will increase by $210.5 million in FY2011 to a total of $5.7 billion, 3.8percent more than FY2010 aid. State aid provided directly to local boards of education increases by $119.7 million (2.5 percent), while teachers’ retirement costs, which are paid by the state on behalf of the local school systems, grows from $759.1 million to $849.8 million (12 percent).
Maryland was one of nine states and the District of Columbia to be awarded a federal Race to the Top (RTTT) grant; the state’s grant is $250 million. Several successful 2010 legislative initiatives were aimed at strengthening the state’s competiveness. One measure lengthens the amount of time before a teacher gains tenure, requires student growth to be a significant component of teacher performance evaluations, and establishes incentives for highly effective teachers and principals who teach the lowest achieving schools. Other legislation implements the ongoing development of a statewide longitudinal data system that will contain student and workforce data from all levels of education and five years into the state’s workforce following college graduation. Local boards also will be encouraged to use innovative school scheduling models in low-performing or at-risk schools, models include extended year, year-round classes to reduce prolonged lapses in classroom instruction.
The General Assembly rejected all salary increases for the governor, lieutenant governor, attorney general, comptroller, treasurer, secretary of state and all members of the General Assembly, maintaining salaries at 2006 levels for the next four years. In FY2011 state employees will continue to be affected by the state’s weak fiscal condition. Employees will again not receive cost-of-living increases, merit increases or deferred compensation matches. A furlough and temporary salary reduction plan mirroring that instituted during FY2010 was built into the FY2011 budget. Salaries will decrease by an average of 2.6 percent to satisfy the five- to 10-day furlough and service reduction requirements. In FY2011, the regular state workforce will decrease by 719.3 positions.
The General Assembly also created a new Public Employees’ and Retirees’ Benefit Sustainability Commission. It is to provide an initial report in December 2010, and a final report in June 2011. The reports must contain actionable recommendations that can be implemented no later than FY2013.
The 2010 regular session ended at midnight on May 16, 2010, and was immediately followed by a brief special session to draft and adopt a budget balancing bill. Other meaningful legislation dealing with health, criminal and public employment was considered in the regular and special sessions.
First Special Session, Chapter 1, includes a compromise provision that allows either the current or next governor to decide whether the state should expand Medical Assistance, the state Medicaid program. The new federal health care reform expands coverage to low-income people without families or private health insurance. Presently, the state serves these people through General Assistance Medical Care or MinnesotaCare, neither of which receives federal funding. Under the new proposal, these people would move onto Medical Assistance, and the state would receive matching funds for participation. To participate in the expanded program, however, the state would need to spend $118 million upfront to receive the additional $1.4 billion federal funding.
The 2010 regular session, Chapter 337, permits an appointing authority to offer a retirement incentive of up to 24 months of the employer’s share of health and dental insurance.
Employees must have at least 15 years of service and be eligible for an annuity immediately upon retirement, must accept the incentive no later than Dec. 31, 2010, and must retire no later than June 30, 2011. The law applies to employees in the legislative, judicial and executive branches; local governments; teachers; and the Minnesota state colleges and universities.
Chapter 366 makes the ignition interlock pilot program permanent. Repeat offenders and first-time offenders with alcohol concentrations of twice the legal limit or higher must use an ignition interlock device to drive legally in Minnesota. First-time offenders with alcohol concentrations lower than twice the legal limit must choose between a limited driver’s license (as under current law) or a broader license subject to use of an ignition interlock. The law also lengthens the driver’s license revocation periods applicable to repeat DWI offenders and provides longer revocation periods for offenders with alcohol concentrations of twice the legal limit (0.16) or more.
Chapter 391 made significant changes to the forfeiture laws, primarily those relating to controlled substances. The law requires officers to give receipts for seized property, and implements time lines for forfeiture notice and hearings. A limit is placed on the value of property that can be forfeited administratively, and a prosecutor must certify administrative forfeitures. Sales must be conducted in a commercially reasonable manner; and no sales can be made to employees of law enforcement agencies or their family members. A wider range of forfeiture cases can be heard in conciliation court, and owners of certain seized property may regain possession pending the forfeiture’s outcome by giving security or posting bond equal to the property value.
The Office of the Revisor of Statutes made available more documents on the Internet. The most recent additions are searchable administrative rules from 1982 to 2007.
The governor of Missouri issued a proclamation on June 18 calling a special session of the General Assembly to consider "the need for an economic development program promoting investment in Missouri's automobile manufacturing and supplier industry and modernization of the state employee retirement system. . . ." The General Assembly convened on June 24 and adjourned July 14 after enacting two laws on those issues. The first law allows Ford to keep up to $100 million in withholding taxes of its employees over 10 years, with another $50 million in similar incentives available for Ford suppliers and other automotive companies. A 20-hour Senate filibuster by opponents of the bill failed to prevent its passage.
The automobile industry incentive package was contingent upon passage and gubernatorial approval of the state employee retirement bill, which would require state employees hired on or after Jan. 1, 2011, to contribute 4 percent of pay to their retirement accounts and would lengthen the time for those state employees to vest in their pensions. The governor signed both measures.
The last official action of the 95th Missouri General Assembly took place on September 15, with a short veto session centered on use of federal stimulus money. House Bill 1903 had attempted to create a separate budget fund to receive budget stabilization funds from the federal government and another budget fund to receive money from the federal Race to the Top Program. The bill contained a provision that would have required the Department of Elementary and Secondary Education to submit a plan detailing proposed school district distributions to the Joint Committee on Education for its approval or rejection. The governor vetoed the bill on constitutional grounds. The veto override motion failed to receive the necessary two-thirds majority on an 85-68 vote.
Prefiling of bills for the next legislative session begins December 1. The First Regular Session of the 96th General Assembly will convene Jan. 5, 2011.
On Sept. 16, 2010, Montana Governor Schweitzer filed a lawsuit against the Montana Legislature. The governor's primary allegation is that a bill that implemented the Legislature’s most recent general appropriations bill contained many subjects that are in violation of the Montana Constitution. The governor asked the court to apply its ruling prospectively, after the upcoming legislative session. A lawsuit by the executive branch against the legislative branch over drafting of bills is unprecedented in Montana. If you have insight about this type of suit, please feel free to contact:
Chief Legal Counsel
Montana Legislative Branch
PO Box 201706
Helena, MT 59620-1706
Paula Tackett, director of the Legislative Council Service (LCS) since 1989, stepped down in June 2010. The new director is Raul Burciaga, who has worked with the LCS since 2000. He was previously the assistant director for drafting. We have hired four attorneys: Peter Kovnat, Kim Bannerman, Elise Rudio and Pam Stokes. Our next legislative session will be a “long” 60-day session, beginning on the third Tuesday in January 2011. We are already preparing for redistricting, and our budget woes seem to continue. The Legislature created a task force to consider efficiencies that could be gained from restructuring government. The interim tax committee has been reviewing tax incentives or benefits to determine whether any legislative actions can be taken to produce savings. Both gubernatorial candidates for governor were women. Susanna Martinez was elected and will be the state’s first woman governor beginning in January.
Like most states, Washington's 2010 legislative session was defined by budget problems stemming from continued erosion of state tax revenues. At the outset of the 60-day regular session, the Legislature was confronted with a $2.6 billion budget gap, in addition to the $9 billion deficit the Legislature bridged a year earlier. The Legislature was not able to reach agreement in the allotted 60-day regular session, so met in a 30-day special session. In the waning days of the special session, the Legislature finally agreed on a budget plan that includes approximately $800 million in new tax revenues.
While budget and revenue issues demanded most of the legislative energy during the 2010 session, many notable bills addressing a wide range of issues also were adopted. A small sampling follows. Several years ago, the Legislature made it a secondary offense to drive while talking on a cell phone or texting. This year, Senate Bill 6345 makes driving while either texting or talking a primary offense. Beginning July 1, 2011, Senate Bill 6248 bans the manufacture and sale of containers made with bisphenol A if the containers are designed to hold food and beverages used by children under age 3. The law also bans the manufacture and sale of sports bottles containing bisphenol A beginning July 1, 2012. Under Senate Bill 5516, people who seek help for someone suffering a drug overdose would not face prosecution for possession of drugs. House Bill 1317 prohibits distribution as public records of birth dates and photographs in the personnel files of police, court and corrections employees except to the media. House Bill 2776 implements a new funding structure for the K-12 education system, specifically, establishing new funding formulas for average class size, staff, administration, and other areas. When fully implemented, the changes could increase the state's funding commitment by billions of dollars.
The November statewide ballot contained a wide range of proposals. Of the nine measures certified for the ballot, most had a fiscal theme. During the 2010 legislative session, the two-thirds legislative vote requirement for tax increases was temporarily suspended. Initiative Measure No. 1053, which passed, reinstate this supermajority vote requirement. Initiative Measure No. 1082, which failed, would have authorized employers to purchase private industrial insurance. Initiative Measure No. 1098, which also failed, would have established a net income tax on high wage earners while reducing state property taxes and state business and occupation taxes. Voters had two liquor privatization proposals to choose from - Initiative Measures No. 1100 and No. 1105. Both proposals would have privatized the sale of spirits (distilled, high alcohol content beverages); and I-1100 would also have repealed certain pricing and delivery restrictions for beer and wine suppliers and distributors. Both measures failed. Initiative Measure No. 1107, which passed, repeals a number of the tax increases approved by the Legislature in the 2010 session. This includes a repeal of the sales tax on bottled water, a repeal of a new excise tax on carbonated beverages, and a restoration of business and occupation tax breaks for a variety of food processors. Referendum Measure No. 52 was a $500 million bond package, which failed. Bond proceeds would have been used for energy-efficient renovations at public schools and universities. House Joint Resolution 4220, which passed is a state constitutional amendment that grants judges more power in denying bail. The constitutional amendment is in response to person who killed four police officers last November after he was released on bail less than a week before the shootings. Senate Joint Resolution 8225 amends the state Constitution by subtracting federal subsidies for state interest payments from the determination of interest for the debt limit calculation also passed.
Since the 79th Legislature’s second Regular Session concluded March 20, 20l0, the governor has convened two extraordinary sessions. During the first in May a number of supplementary appropriations bills for the FY2010 were passed, as well as general law bills that included SB1004 (replacing the term “mentally retarded” with the term with “intellectual disability” throughout the state code) and SB1005 (addressing criminal penalties for the illegal sale of firearms). The second in July focused mainly on establishing special and general primary elections to fill the unexpired term of the Honorable Robert C. Byrd, (D-W. V.), who died in office June 28, 2010, as the longest serving member in the history of the U.S. Senate. Governor Manchin appointed his former gubernatorial counsel Carte Goodwin, to fill the seat until the November election. Governor Manchin (D) ran for and won the seat and Senate President Earl Ray Tomblin was sworn-in as acting governor on Nov. 16, 2010 .
Another succession issue is on the horizon. West Virginia’s constitution does not provide for a “lieutenant governor.” Instead, it provides that, in the event of a governor’s resignation, “the president of the Senate shall act as governor until the vacancy is filled . . . (and) . . . [w]henever a vacancy shall occur in the office of governor before the first three years of the term shall have expired, a new election for governor shall take place to fill the vacancy” (Article 7, §16). Since Governor Manchin won in November and resigned with less than 3 years remaining in his term in order to become U.S. Senator, one of many questions being considered here is when an election for governor must next occur. The answer may lie in whether the statute addressing elections to fill that gubernatorial vacancy fulfills constitutional mandates, (See W. Va. Code §3-10-2). These events have ushered in a truly historical period for the state, the sort of “interesting times” that lend even more excitement to the labors of the legislative lawyer.
Meanwhile, 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 on the Legislature’s website.
November 2 also brought the general elections for all 100 House of Delegates seats and half (17) of the Senate seats. The first Regular Session of the 80th Legislature will convene Jan. 12, 2011 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.