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State News December 2012

State News - December 2012

The Legislative Lawyer  is published twice a year by NCSL's Legal Services Staff Section. In each issue, correspondents from state legislatures share the latest news.

State News Editor: Edith Elizabeth Politz

Regional Correspondents:
Great Lakes John Rowings (IN)|Mid-Atlantic Rich Dillard (DE)|West Jeffrey Mitchell (WA)|New England Brian Leven (VT)|Mid-West Scott Harrison (NE)
 

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ALASKA

Pam Finley
Pam Finley is retiring as revisor as of the end of September 2012. The new revisor will be Kathryn Kurtz, who has been the assistant revisor for approximately six years. The assistant revisors will be Gerald Luckhaupt and Lisa Kirsch. Also, just in case we forgot to mention it, Tam Cook, who had been the Director of Legal Services for decades, retired in the fall of 2010 and was succeeded by Doug Gardner. 
 

COLORADO

Debbie Haskins
In the most recent bid for the publication contract for the Colorado Revised Statutes, the Committee on Legal Services, a legislative committee, required the successful contractor to have the capability and willingness to work with the committee to develop and promote Colorado’s statutes in electronic formats usable with today’s electronic devices. The committee selected LexisNexis as the contract publisher. The new contract goes in effect January 2013. One  feature of LexisNexis’s bid was that it had already begun developing e-books of the Colorado law.
 
While the project is still in the design and development stage, LexisNexis is working with the committee and the Office of Legislative Legal Services to design the functionality, features, and touch-screen capabilities that will be most useful and desirable to the public. Members of the committee have been testing the design during the 2012 legislative session and during the interim on iPads on loan from LexisNexis. Notwithstanding the development of e-books, the only official version of the Colorado Revised Statutes will continue to be the printed soft-bound Colorado Revised Statutes.
 
Colorado's ongoing case challenging the constitutionality of its system of financing public education (K-12), Lobato v. State, continues to work its way through the courts. In 2005, 124 individual parents and 14 school districts sued the state board of education, the education commissioner, and the governor. The Denver District Court initially dismissed the case but the decision was appealed to the Colorado Court of Appeals which upheld the dismissal. In 2009, the Colorado Supreme Court reversed the dismissal and held that there were justiciable issues and remanded the case back to the Denver District Court to determine whether the state's public school financing system is rationally related to the state constitutional mandate that the General Assembly provide a thorough and uniform system of public education. On Dec. 9, 2011, the Denver District Court issued its ruling. In a 183-page written order, the court concluded that "the Colorado public school financing system is not rationally related to the mandate to establish and maintain a thorough and uniform system of free public schools" and results in a denial of rights of the individual plaintiff guaranteed by the state constitution. The court enjoined the defendants to design, enact, find, and implement a system of public school finance that provides and assures that adequate, necessary, and sufficient funds are available in a manner rationally related to accomplish the purposes of the education clause and the local control clause of the state constitution. The court stayed enforcement of the injunctive relief it ordered to allow the state a reasonable time to implement the order. The state filed an appeal on January 23, 2012.  Briefs have been filed in the case and we are waiting to hear if the Court will schedule oral arguments in the case. In the meantime, the present financing formula remains in effect.
 
Another Colorado case that might be of interest to other states is the recent Colorado Court of Appeals decision (May 10, 2012) entitled Freedom From Religion Found., Inc. v. Hickenlooper. The Freedom from Religion Foundation, Inc. ("FFRF") and four Colorado citizens sued Governor John Hickenlooper claiming that six annual proclamations of a Colorado day of prayer issued by Governor Hickenlooper and former governors violate the preference clause of the Colorado Constitution, Art. II, Sec. 4, which states that preference may not be given in law to any religious denomination or mode of worship. This section is Colorado's equivalent of the United States Constitution's first amendment establishment clause. The Colorado Court of Appeals found in favor of FFRF and the four Colorado citizens, holding that the proclamations issued from 2004 to 2009 are governmental conduct that violates the preference clause. According to the court, under the Lemon test established by the United States Supreme Court, the predominant purpose of these proclamations is to advance religion and they thus constitute preferential treatment to religion in general. Also, looking through the eyes of a reasonable observer, the proclamations have the primary effect of promoting religion because they send the unequivocal message that the governor endorses the religious expressions embodied therein, thus promoting religion over nonreligion.
 
The governor argued that, since the United States Supreme Court has approved legislative prayer in Marsh v. Chambers, the Colorado Court of Appeals should similarly find that the proclamations for a Colorado day of prayer are constitutional. But the Colorado Court of Appeals held that legislative prayer and the proclamations at issue in this case are distinguishable from Marsh. The court held that the proclamations, unlike legislative prayer, are not a well-established part of Colorado's history, have a greater scope because they are addressed to the public generally, and have a different effect because they "encourage citizens to 'unite' with those who believe in God and pray to God for the benefit of our country, our state, our leaders, and our people."
 
The case was remanded to the trial court to conduct additional proceedings in order to determine whether a permanent injunction should be issued to enjoin Governor Hickenlooper and his successors from issuing similar proclamations. 

DELAWARE

Rich Dillard

 Update from the last issue: As to the Sussex County Sheriff’s claim to have police powers, the House tabled the Resolution to request that the Delaware Supreme Court determine whether the Delaware Constitution granted him those powers, and instead the General Assembly passed, and the governor signed, legislation removing all references to sheriffs in code sections involving the power to make arrests. The Sussex County Sheriff has filed a lawsuit asking the Superior Court to rule that he has Delaware Constitutionally created police powers. Stay tuned.
 
Even before the general election, the 147th General Assembly is guaranteed to have more changes in leadership than in at least three decades. The speaker of the House announced his retirement, as did the Senate minority whip. Both the House minority leader and House minority whip are giving up their seats to run for the State Senate and the president pro tempore of the Senate (equivalent to the speaker of the House) was defeated in the September primary election.  The Delaware General Assembly does not have term limits. 

FLORIDA

Edith Elizabeth Pollitz

The ongoing issue of privatization of prison health care is back in the news. On Sept. 12, the Joint Legislative Budget Commission approved a plan to privatize a large portion of health care in prisons. The privatization effort is estimated to save around $58 million. As of the date of this writing, the American Federation of State, County and Municipal Employees (AFSCME) is planning to sue and Democratic members of the Legislature are arguing that action of the Legislature as a whole is required for this move to proceed.
 
This issue cropped up in the 2011-2012 General Appropriations Act, which included proviso language authorizing the Department of Corrections to contract with private business for provision of prison health care. Because the provision was placed in appropriations instead of in a bill specifically relating to corrections issues, unions representing health care workers working in the prisons sued, arguing placement of the authority for the contract in an appropriations act was a violation of the constitutional “single subject” requirement for legislation. The case was mooted when it came up before the judge in July as the appropriations act had expired effective at the end of the fiscal year. The saga continued when the unions asked the judge to reverse the ruling in August after the Secretary of Corrections proceeded with the privatization plan under a claim of independent statutory authority under s. 20.315(12), authorizing the department to contract with “other entities” to provide needed services, interpreting that term to include for-profit companies.  The judge reaffirmed the dismissal. The issue was raised as to the need for the proviso language in the appropriations bill if this independent authority to contract with for-profit entities exists. That has not been settled. 

INDIANA

George Angelone 
The Indiana General Assembly is adjourned until January. The intervening election will result in a very large class of freshman members of the House of Representatives and a few new members of the Senate. Retirements plus open districts created through redistricting account for most of the changes. The rare high turn-over in the legislature and the election of a new governor in November 2012 will make the next session interesting.
 
Jack Ross is retiring as Executive Director of the Indiana Legislative Services Agency. By the time this state report is printed, the new director will be selected from a list of over 6o candidates.
 
The new executive director will come just as the agency is planning a major up-grade to its computer software systems. The current system is over 15 years old.
 
The General Assembly is currently winding up its interim study committee period. These committees cover the full range of legislative topics. The committees principally hear testimony that legislators would not have time to hear during the regular session.  
 

KANSAS

Mary Torrence
 
The 2013 legislative session will be an unusually interesting one. Between redistricting and election of members of both the Senate and House this year, there will be a large number of new faces. There will be turnover in Senate and House leadership positions as well, due to retirements and election defeats.
 
The investigation of allegations of Open Meetings Act violations by legislators, arising from dinners hosted by the Governor and attended by majority party members of legislative committees, has concluded. The district attorney found no substantive violations of the act. However, it became clear there is a need to educate legislators on the provisions of the act.
 
Closing arguments in a challenge to the state’s school finance law were heard Aug. 29. The decision of the three-judge panel on the question of whether the state has provided students the suitable education required by the Kansas Constitution should be rendered by the end of November. At that point the parties will have 30 days to appeal the decision to the Kansas Supreme Court.
 
Work continues on the legislative computer system. Implementation and support of the system is rapidly transitioning from the vendor to legislative IT staff. The scope of the system is based on an ambitious vision of e-democracy and encompasses all aspects of the legislature except the audit function.
 
In the past two years there have been numerous retirements of longtime legal and support staff in the Revisor’s Office. In March 2013 I will join those who have retired. The turnover has highlighted the importance of succession planning. While the changes mean loss of considerable experience, they also make way for bright new staff bringing energy and considerable skills to the office. The Revisor’s Office, and the Kansas Legislature, will be in good hands!
 

LOUISIANA

 Clifford Williams
 
The 2012 Regular Session of the Louisiana Legislature produced an ambitious education reform package pushed by the governor.  However, the governor's attempt to radically reform the state's retirement program did not see as much success. The administration pushed two education items which were both prefiled on March 2 and sent to the governor for executive approval on April 10. The regular session actually convened on March 12, thus both bills were passed in less than a month. Many legislators expressed their concern with the speed in which these items were passed. Act No. 1 revamps provisions of law relative to teacher tenure, teacher evaluations, and teacher pay-for-performance, and Act No. 2 provides for a voucher program and other reforms.  The main thrust of Act No 2 is the so-called "voucher" program. The new law allows parents of certain public school students to apply for a state "voucher" to enroll their children at participating parochial, private, or charter schools. The act also authorizes parents of a "failing" school to petition to have the school placed within the Recovery School District. The RSD is essentially a state-wide school district that has taken over failing schools from all across the state.
 
 Lawsuits have been filed seeking a halt to the implementation of both acts, with the main argument against Act No. 2 being that it is unconstitutional to use state funds to pay for the education of a child at a parochial or private school.   The only retirement reform bill passed, Act No. 483, changed certain retirement systems from a defined-benefit plan to a cash-balance plan. However, the new law will only apply to employees hired after a certain date and a lawsuit has also been filed to halt its implementation. The 2012 Regular Session of the Louisiana Legislature also saw the emergence of a fiscally conservative group, called the "fiscal hawks." This group, composed of legislators belonging to the same party as the governor, spoke out and voted against the administration's use of one-time monies to plug holes in the budget. The group has now formed a Budget Reform Coalition and we are anticipating a very contentious 2013 fiscal session.  
   

MAINE

Margaret Reinsch
 
VETERANS COURTS
 
The Maine Legislature passed enabling legislation authorizing the Chief Justice of the Maine Supreme Judicial Court to establish veterans’ treatment courts.  Veterans’ treatment courts are specialized sentencing dockets in select criminal cases in which the defendant is a veteran or a member of the United States Armed Forces. The specialized dockets will enable veterans’ agencies and social service agencies to provide treatment for that defendant. The Supreme Judicial Court may adopt administrative orders and court rules of practice as necessary. The State Court Administrator as well as other state departments and social service agencies may seek federal funding for the veterans treatment courts. The treatment is not provided by the courts but by participating social service agencies and government departments. The bill was presented in memory of former Army Ranger Justin Crowley-Smilek of Farmington, a decorated combat veteran who received both the National Defense Service Medal and the Joint Service Achievement Medal and who served his country in Afghanistan. Public Law 2011, chapter 500 was enacted as an emergency measure effective March 14.
 
FREEDOM OF ACCESS ACT CHANGES
 
The Maine Legislature reviewed the recommendations of the Right to Know Advisory Committee (http://www.maine.gov/legis/opla/righttoknow.htm) and enacted almost all of the proposed changes to Maine’s Freedom of Access Act.  Public Law 2011, chapter 662, among other changes, repeals and replaces the current section of law that lays out the process and fees concerning inspecting and copying public records, although much of the current language is retained. It allows inspection and copying of public records during reasonable office hours. The reasonable office hours must be posted. It requires the agency or official, when acknowledging the receipt of a request for public records, to provide a good faith estimate of when the response to the request will be complete. Although the time estimate is not binding, the agency or official must make a good faith effort to meet that time target. The agency or official may not charge for inspection unless the requested public record is such that it cannot be inspected without being compiled or converted.  If the agency or official must compile the record for inspection, then the agency or official may charge $15 per hour, after the first hour, for the time it takes to enable inspection. If the agency or official must convert a public record into a form susceptible of visual or aural comprehension or into a usable format, the agency or official may charge for the actual cost to perform the conversion. The per-hour cost for compiling a record is increased from $10 to $15, after the first hour.
 
Chapter 662 clarifies that a request for a public record does not have to be made in writing or in person. An agency or official is not required to create a record that does not exist in response to a request for a public record. An agency or official is not required to provide a requester with access to a computer terminal. Chapter 662 requires an agency or official to provide access to an electronically stored public record either as a printed document of the public record or in the medium in which the record is stored, at the requester's option, except that the agency or official is not required to provide access to an electronically stored public record as a computer file if the agency or official does not have the ability to separate or prevent the disclosure of confidential information contained in or associated with that file.
 
Chapter 662 creates the position of public access officer and requires each state agency, county, municipality, school administrative unit and regional or other political subdivision to designate an existing employee to serve in that capacity as a resource for freedom of access questions. Requests for public records do not have to be made to the public access officer. The public access officer must undergo the same freedom of access training as elected officials.
 
Chapter 662 requires government agencies, when making purchases of or contracting for computer software and other information technology resources, to consider maximizing public access to public records, as well as maximizing the exportability of public records while protecting confidential information.
 
Chapter 662 includes funding for a half-time Assistant Attorney General to serve as Public Access Ombudsman in the Office of the Attorney General. This funding, when combined with funding for a half-time position provided in Public Law 2011, chapter 655, provides funds for one full-time ombudsman position.  The ombudsman position was created by the Legislature in 2006 but has been unfunded until this year. 
 
On September 7, Attorney General William Schneider announced that attorney Brenda Kielty has been selected to serve as Maine’s first Public Access Ombudsman. The responsibilities of the Public Access Ombudsman include responding to informal inquiries about Maine’s Freedom of Access Act, working to resolve complaints, preparing educational materials about the law in collaboration with the Right to Know Advisory Committee and making recommendations about improving access to public records and proceedings.
 
LINE-ITEM VETO
 
In 1995, Maine voters approved a constitutional amendment giving the Governor the ability to line-item veto appropriations and deappropriations.  (Maine Constitution, Art. 4, Pt. 3, § 2-A.)  The provision provides that a majority of all the elected members in each House is sufficient to override the veto, and each dollar amount vetoed must be voted on separately to override the veto.
 
The Maine Legislature passed a budget in mid-April (105-30 in the House and by 35-0 in the Senate), and adjourned for a four-week recess. Governor Paul LePage objected to $6 million in state spending for municipal general assistance programs and a $3 million Medicaid expenditure that relies on a program that he says is inconsistent with federal law. It was the first time the line-item veto had been exercised in Maine.
 
According to House and Senate rules, lawmakers had a window of five days to reconvene and respond to the vetoes. Although the Democrats quickly voiced support for returning to the statehouse for an override vote, Republicans polled their members and decided to not return until the already-scheduled May date, letting the vetoes stand.

MARYLAND


Sherry Little 

Seven statewide ballot questions will be on Maryland’s general election ballot. Three of the questions are statutory enactments petitioned by voters to statewide referendum. These questions address in-state college tuition rates for undocumented immigrants, same-sex marriage, and congressional districting.
 
Maryland’s “Dream Act” (Public Institutions of Higher Education – Tuition Rates – Exemptions, Chapter 191 of 2011, Senate Bill 167) allows certain individuals who attended and graduated from Maryland high schools to pay in-state tuition and, in certain instances, in-county tuition at community colleges. An individual who graduates from or earns a certain number of credits from a community college in the state is then eligible to pay the resident tuition rate at a public four-year higher education institution under specified circumstances. Because of their inability to establish permanent residency, these individuals, including many immigrants, both documented and undocumented, are considered nonresidents for tuition purposes regardless of how long they have lived in Maryland. The act also extends the time in which honorably discharged military veterans may qualify for in-state tuition rates.
Under the act, an individual, including an undocumented individual, is authorized, regardless of residency status, to pay in-state tuition at a community college in Maryland if, among the other requirements, the individual:


  • attended a Maryland high school for at least three years and either graduated from a Maryland high school or received the equivalent of a high school diploma in Maryland; and

  • provides the community college with documentation that the individual or the individual’s parent or legal guardian has filed a Maryland income tax return annually (1) for the three years during which the individual attended high school in the state, (2) during any period between graduation from high school in the state and registration at a community college, and (3) during the period of attendance at the community college.

An individual who meets the specified requirements and is awarded an associate’s degree by, or earned 60 credits at, a community college in the state is eligible for the resident tuition rate at a public four-year higher education institution in Maryland if, among other requirements, the individual provides the institution documentation regarding the annual filing of Maryland income tax returns by the individual or by the individual’s parent or legal guardian up to and including the period of attendance at the institution, and registers at the institution within four  years after graduating from, or achieving 60 credits at, a community college in the state. Students qualifying for in-state tuition rates by this method will not be counted as in-state students for purposes of counting undergraduate enrollment.
Another referred law (The Civil Marriage Protection Act, Chapter 2 of 2012, House Bill 438) amends current law to allow gay and lesbian couples to obtain a civil marriage license. Other prohibitions and age restrictions relating to who may legally marry remain in place. The Act also provides numerous exemptions, protections, and immunities to accommodate religious groups and affiliated organizations. The legislation’s effective date is January 2013, or after any lawsuit over a referendum effort is resolved, if the lawsuit occurs after January 2013.

 

A third referred law (Maryland’s Congressional Districting Plan, Chapter 1 of the Special Session of 2011, Senate Bill 1) establishes a new congressional districting plan for the election of Maryland’s eight representatives in the U.S. House of Representatives based on new census figures, as required by law. In the fall of 2011, the General Assembly met in a special session to establish a new congressional districting plan based on census data collected in 2010. The plan subsequently was challenged in federal court, but in December 2011 a three-judge panel of the U.S. District Court for the District of Maryland ruled that the plan was legal and constitutional. On June 25,  the U.S. Supreme Court affirmed the district court ruling.

 

Regardless of the outcome of the vote on this question at the 2012 general election, the congressional districting plan enacted under Chapter 1 will remain in effect for the duration of the two-year term of the U.S. Congress that begins in January 2013, and any member elected to the U.S. Congress at the November 2012 general election from those districts will remain in office until the end of that two-year term.

MISSOURI

John Hembree
The last official action of the Ninety-Sixth Missouri General Assembly took place on Sept. 12, with a short veto session concerning the override of a bill allowing religious and moral exemptions to covering contraception in health insurance policies. SB 749 allows employers to choose not to cover contraception, abortion, or sterilization if those services go against their religious or moral convictions. The Senate voted to override the Governor's veto on a 26-6 vote, and the House concurred on a 109-45 vote.  

The regular session which ended on May 18 saw the General Assembly override another of the Governor's vetoes. That legislation redrew the boundaries of the state's congressional districts in response to the 2010 census figures.

Prefiling of bills for the next legislative session begins Dec. 1.  Convening the first Regular Session of the Ninety-Seventh General Assembly will occur on Jan. 9, 2013.


TEXAS

Mark Moore
 The legislature is close to completing the interim period between regular legislative sessions (the Texas Legislature meets for a 140-day regular session every two years, plus for any 30-day special sessions called by the governor). The most recent regular session ended on May 30, 2011, and a special session to address fiscal issues and a few other matters immediately followed. That special session ended June 29, 2011. No further special sessions are currently anticipated.
 
The Texas Legislative Council has nearly completed its code revision and other projects for the interim. The projects currently being undertaken include continuation of the Special District Local Laws Code, in which local laws creating various special districts are being revised, and research on a variety of substantive issues that affect Texas legislation.
 
Legislative committees are also well into the legislative interim and have received their charges from the speaker of the House of Representatives and the lieutenant governor. A number of bills will likely arise from their work on these charges for the 83rd Legislature, which begins Jan. 8, 2013. The charges include multiple issues related to the drought currently affecting Texas, such as water rights (especially groundwater rights) and wildfire response; education issues such as school finance and the response to various related lawsuits; transportation; occupational regulation; affordable health care; and the relationship between the state and the federal government regarding federal regulation, including various federal mandates and state implementation of those mandates.
 
Each of these subjects will probably generate significant legislation. In addition, as with the 2011 legislative sessions, budgeting issues will likely play a major role.
 

VERMONT

Katie McLinn and Michele Childs

The Vermont General Assembly adopted legislation during the 2012 legislative session to decentralize its mental health system of care. Flooding of the former Vermont State Hospital caused by tropical storm Irene in August 2011 presented the legislature with an opportunity to reevaluate the state’s delivery of services to individuals with mental health conditions. The resulting Act 79 establishes an integrated and recovery-oriented system of care that utilizes clinical best practices and least restrictive settings to improve the financial and geographic accessibility of treatment.
 
The model previously used by the state consisted of a 54-bed acute inpatient hospital with some community supports. Act 79 moves away from that centralized model by establishing an array of services that vary in degree of intensity. The legislature approved the construction of a 25-bed acute inpatient hospital owned and operated by the state, as well as the renovation of two units with a total of 20 acute inpatient beds at private hospitals contractually obligated to accept patients in the custody of the commissioner of mental health. The system will include a secure residential recovery facility for individuals no longer requiring acute inpatient care, but who remain in need of treatment in a secure setting. In addition, Vermont’s new law authorizes the commissioner of mental health to contract for 31 beds in intensive residential recovery facilities aimed at preventing or diverting hospitalization. The legislature also approved the development of a facility for individuals seeking to reduce or forego reliance on medication during their first episode of psychosis. Act 79 authorizes the commissioner of mental health to strengthen community supports, such as enhanced programming, adult outpatient services, and mobile crisis teams. The legislation also increases the role of peers in the treatment and recovery of individuals with mental health conditions.
 
Vermont’s new law establishes a clinical resource management system to coordinate individuals’ movement to appropriate services and to perform ongoing evaluations and improvements of the mental health system. This system will facilitate several functions, including use of coordinators to assist emergency service clinicians in the field, use of an electronic bed board to track available bed space, coordination of patient transport services, access by individuals to a mental health patient representative, and periodic review of individuals’ clinical progress.
 

VIRGINIA

 Mary Spain
 
The Virginia General Assembly (GA) passed a new biennial budget for the fiscal years running from July 1, 2012, through June 30, 2014, in mid-May following its regular 60-day 2012 session and a subsequent extra session to resolve the budget impasse. 
 
The dominant topic since the spring has been the presidential election. Virginia has earned the label "battleground" state. The Republican primary was easily won by Mitt Romney in a two-way race with Ron Paul. Other Republican candidates failed to meet the Commonwealth's stringent ballot access requirements. 
 
Polls now show races too close to call in the presidential contest between Obama and Romney and in the Senate election to replace retiring Jim Webb by one of two former governors— George Allen (R) or Tim Kaine (D).  Virginia's governor and state legislators run in odd-numbered years and will be on the 2013 ballot.
 
New voter ID procedures are in place that require an ID at the polls—one of a long list of possible documents and not necessarily a photo ID.  The Justice Department precleared the new requirement.  Voters without ID will be given a provisional ballot to mark and be required to provide ID within three days after the election.  It remains to be seen if the new ID requirements will generate many provisional ballots and whether the election results might be delayed.

WASHINGTON

Jeffrey Mitchell

The Washington Legislature has conducted a regular legislative session and three special sessions since last year's update.  The additional sessions were largely a function of the state's ongoing budget difficulties.
 
As a prelude to the 2012 regular session, the legislature convened in December 2011 for a short special session to take early action on several budget items. These early action steps reduced the budget problem by almost $500 million. An interesting side issue involved a local public facilities district's potential default on a $42 million debt. Legislators debated whether the state should provide some type of assistance to prevent the default. Ultimately, the Legislature took no action on the matter during the special session and the district went into default. However, legislation was adopted during the regular session providing more revenue flexibility for the district. The district's financial situation has largely improved since then.
 
The 2012 regular legislative session was dominated by fiscal matters associated with the state’s remaining $1.5 billion budget imbalance. The regular 60-day legislative session ended on March 8 with no budget agreement. Within minutes after sine die, Governor Gregoire announced that she would call the Legislature back to Olympia for a 30-day special session. On the morning of April 11, after legislators had spent almost 22 hours on the floor debating some final bills and budget items and rolling into another special session several hours earlier, the final gavel came down for 2012. The legislature adopted many notable bills.  Below is a short summary of several of them.  
 
SHB 2177 prohibits the duplication or distribution of child pornography as part of the discovery process in a criminal prosecution, as long as the material is made reasonably available to the prosecution, defense counsel, and expert witnesses. The legislation allows the defendant to review the materials only in the presence of counsel or, if pro se, under supervision of a person appointed by the court, and provides for the sealing or destruction of the materials at the close of trial.
 
E2SHB 2319 continues the state’s implementation of federal health care reform, setting additional requirements and policy for the operation of the Washington's Health Benefits Exchange, which will begin operating January 1, 2014.
 
ESSB 5991 is a legislative response to the Penn State child-abuse scandal. It requires administrative, academic, and athletic department employees, including student employees, of state and private institutions of higher education to report suspected child abuse or neglect if the person has reasonable cause to believe a child has suffered abuse or neglect. The report would be made to either law enforcement or the state Department of Social and Health Services. 
 
In 2012, the Legislature adopted more explicit and stringent balanced budget requirements.  SSB 6636 requires the Legislature to enact a balanced operating budget in the current and ensuing fiscal biennia, beginning with the 2013-15 biennium.  To facilitate compliance with the balanced budget requirements, a state budget outlook process is also established.  The state Economic and Revenue Forecast Council will prepare a state budget outlook for revenues and expenditures.
The November ballot will present Washington voters with six statewide measures.  Below is a brief description of several of the ballot proposals garnering more attention.
 
Initiative Measure No. 502 would remove state criminal and civil law prohibitions with respect to growing, manufacturing, distributing, and possessing marijuana for those over the age of 21.  A number of licensing, tax and other requirements would have to be met. 
 
Initiative Measure No. 1185 would reaffirm the two-thirds vote requirement for taxes. The initiative would also require all fees to be approved by a simple majority of the legislators in each house of the legislature. Similar initiatives have been approved by the voters several times in the past. The state Supreme Court heard arguments recently on the constitutionality of letting an initiative set a supermajority vote requirement for legislative actions that raise taxes.
 
Initiative Measure No. 1240 would allow the authorization of a limited number of charter schools within the state’s public school system. More specifically, 40 new charter schools would be allowed over a five-year period. A charter school would be operated by a nonprofit corporation. All charter schools would be considered public schools under state law and therefore would be required to provide basic education and would be subject to statewide student assessment.
 
Washington law currently prohibits marriage if the parties to the marriage are of the same sex. Five years ago, legislation was enacted allowing two individuals of the same sex to enter into a state-registered domestic partnership if they meet certain requirements. Referendum Measure No. 74 would legalize marriage for same-sex couples. Same-sex domestic partnerships, in which neither party is over 62 years old, will be automatically converted into a marriage as of June 30, 2014, unless the parties either get married or dissolve the domestic partnership before that date.
 
While education funding has always been a high priority issue for the legislature, it has taken center stage due to a state Supreme Court decision in January. In McCleary v. State, the Court held that the state has failed to meet its constitutional duty to fully fund the costs of its basic education program. The means of implementing its constitutional duty to fully fund K12 education is left to the legislature. However, the court has retained jurisdiction to monitor the legislature's progress over the next couple of years. The additional annual cost to fully fund a basic education program will likely exceed $1.5 billion. 
 

WEST VIRGINIA

Mark McOwen

Since the 2nd Regular Session of the 80th Legislature concluded March 16, the Legislature’s monthly interim study meetings continue and will conclude immediately prior to the next regular legislative session.  Among the 132 study topics are spay/neuter laws and funding options; transparency for tax expenditures to create/retain jobs; impact of economic changes on the state coal industry study; West Virginia Buy American Act; Boy Scout property tax exemption; involuntary commitment process; tanning bed and tattoo use by teens; Medicaid prescription drug cost control; municipal police & fire pension funding; and prison overpopulation.  A complete list of study topics may be found at the Legislature’s website.

 

Our last report noted that a federal court ruling adverse to the Legislature's congressional redistricting plan was on appeal to the Supreme Court. On September 25, in Tennant v. Jefferson County Commission (docket 11‑1184), the court reversed the three Judge panel district court’s  ruling, holding that the 0.79 percent population variance resulting from the new redistricting plan did not violate the federal constitutional guarantee of “one person, one vote.”  Finality eludes our grasp, however, because the case was remanded to the district court to address plaintiffs’ claims under the West Virginia Constitution.

 

November 6 brings general elections for all 100 House of Delegates seats and half (17) of the Senate seats. The 1st Regular Session of the 81st Legislature will convene Jan. 9, 2013, and immediately adjourn to Feb. 13 to afford the newly elected governor additional time to prepare a proposed budget and legislative package. The session is limited to 60 consecutive days beginning on that date.  To monitor legislative activity, please visit the West Virginia Legislature’s website at http://www.legis.state.wv.us/.  For toll-free access, dial 1-877-56LEGIS.


 

State Correspondents

 

We are fortunate to have a dedicated and reliable group of regional and state correspondents who supply us with state news, articles and other input for The Legislative Lawyer. The Legal Services Staff Section thanks all of you for your effort.

AK Pam Finley
AL Karen Smith
AZ Don Thayer
CA Saskia Kim
CO Debbie Haskins
CT Bradford Towson
DE Rich Dillard
FL Edith Elizabeth Pollitz
HI Ken Takayama
IA Rich Johnson
ID Katharine Gerrity
IL Ronald P. Michel
IN George Angelone
KS Mary Torrence
LA Clifford Williams
MA Louis Rizoli
MD Sherry Little
ME Peggy Reinsch
MN Karen Lenertz
MO Russ Hembree
MS Ted Booth
MT Robert Stutz
ND Jay Buringrud
NE Scott Harrison
NH Paul Lindstrom
NJ Robert Rothberg
NM Pam Ray
NV Brenda Erdoes
NY J. M. Wice
OH Rich Merkel
OK Scott Emerson
OR Ted W. Reutlinger
PA Stacey Connors
SD Jacqueline Storm
TN Emily Urban
TX Mike Ewing
VA Mary Spain
VT Brian Leven
WA Jeffrey Mitchell
WI Cathlene Hanaman
WV Mark McOwen
WY Dave Gruver
 
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