Legislative drafting is a craft. Though its practitioners labor in various settings--state, federal and international ---a legislative drafter can draw appreciatively from the analysis of a drafter in another context. Given that academic resources in the United States tend to be focused on drafting at the federal level, drafters for state legislatures can learn from congressional drafting even if they need to modify it on occasion to reflect differences due to scale, federalism or structure, such as single subject rules in state constitutions. A recent law review article presents a helpful opportunity for state legislative drafters to reflect on their craft in response to a substantial empirical study of the legislative drafting process in Congress.
Tools for Management Coaching Tuesday, Dec. 17, 2013 | 2:30 p.m. ET/ 1:30 p.m. CT/ 12:30 p.m. MT/ 11:30 a.m. PT (Free 1 hour webinar)
Legislative staff managers and supervisors will benefit from this introductory webinar on coaching and the tools for shifting the focus of interactions with others.
Bill Drafting: Using Shall Carefully for Clearer Laws (aired Nov. 21, 2013)
This hour-long webinar for legislative drafters and legislative editors discussed using the word “shall” in drafting legislation. Topics included: the false imperative; wrong actor ;“shall have been”; and the passive voice in drafting.
The Legal Services Staff Section (LSSS) and NCSL produce a number of webinars each year for legislative staff. These webinars are archived so that staffers who are unable to view the live presentation can still benefit from the training.
Supreme Court News
Lisa Soronen, Executive Director, SLLC
The Supreme Court will decide in McCullen v. Coakley whether a Massachusetts statute prohibiting speech within 35-feet of a reproductive health care facility violates the First Amendment. The State and Local Legal Center (SLLC) filed an amicus brief in this case.
Massachusetts law initially allowed protesters to come within six feet of those entering a clinic within an 18-foot buffer zone around the clinic. Protesters would crowd six feet from a clinic door making entry into the clinic difficult and intimidating. So in 2007 Massachusetts adopted a 35-foot fixed buffer zone around clinics. The First Circuit held that this statute is a constitutional time, place, and manner regulation of speech because numerous communication channels remain available to protesters.
While only two other states regulate speech within a specific distance of reproductive health care facilities (Colorado and Montana), buffer zones are very common. The SLLC’s brief points out that how the Court rules in this case could affect state and local government’s ability to regulate speech to protect public safety in many contexts. For example, lower courts have upheld buffer zones to prevent congestion at special events and places that regularly draw crowds and near funerals to protect vulnerable mourners. These buffer zones and many others may be in jeopardy if the Court rules against Massachusetts.
Mary Jean Dolan, International Municipal Lawyers Association Special Counsel, wrote the SLLC’s brief which was joined by the National League of Cities, the National Association of Counties, the International City/County Management Association, the United States Conference of Mayors, and the International Municipal Lawyers Association.
The Colorado State Capitol has installed a geothermal heating and cooling system which pumps water from two wells drilled into the Arapahoe aquifer more than 850 feet underground. The Capitol, opened in 1894, will now be cooled and heated by the geothermal system. It is the first Leadership in Energy & Environmental Design (LEED)-certified capitol building in the country.
The Capitol is currently undergoing repairs to strengthen the underlying cast iron drum holding up the dome and replace the copper drum and gold leaf on the outside of the dome. The construction is expected to be completed in 2014. The next project, estimated at $6 million, is to remove the acoustical tiles to restore the ceiling and original skylights in both the House and Senate chambers.
Colorado residents and legislators have been dealing with the aftermath of extremely destructive wildfires in the past two years and September floods that affected 17 counties, displaced some 6,000 people, damaged more than 16,000 homes and destroyed 1,800, and caused seven fatalities. Years of drought, pine beetle destruction, and the increasing numbers of homes built in the wildland-urban interface contributed to the explosive wildfires that spread rapidly. In September, after several hours of unprecedented rainfall, Colorado experienced flash floods that also hit some areas that were damaged by previous wildfires. In response, a legislative interim committee was formed called the Wildfire Matters Review Committee. They have been discussing such topics as wildfire mitigation efforts, insurance issues, and coordination between local governments and state government in fighting fires and dealing with large wildfires. The floods damaged 200 miles of roads and 50 state bridges. It will take a year or more to get all the roads and bridges repaired.
Since the last submission, the 147th Delaware General Assembly recessed on July 1 until the second Tuesday in January. Bills on hot button issues passing at least one chamber had the following results: gay marriage became law [HB 75] on May 7 and became effective July 1; mandatory criminal background checks for most gun transactions between people who are not licensed firearms dealers became law [HB 35 with its 10 amendments] when it was signed May 8 and went into effect July 1; it is now a crime not to report a lost or stolen firearm since [SB 16] was signed 6/12/13 effective immediately, while a bill which would increase the penalty for falsely reporting a lost or stolen firearm unanimously passed the Senate but has not yet been considered by the House [SB 18]; a bill that mixed guns and mental health issues went down to defeat in the Senate with a vote of 6-13-2 after passing the House 40-1 [HB 88]; a bill creating mandatory minimum penalties for possession of a firearm by a person who is prohibited due to conviction of certain crimes is sitting in a Senate committee after passing the House 40-1 [HB 73], while a bill increasing mandatory minimum penalties for possession of a firearm by a person who is prohibited due to conviction of a violent felony became law [HB 36] when it was signed July 18 with immediate effect; a bill adding possession of a firearm during the commission of a felony to the list of crimes triggering the habitual criminal statute became law with just one no vote in the Legislature [SB 40], it took immediate effect when it was signed July 3; and a bill to repeal the death penalty never got out of committee in the House after squeaking out of the Senate 11-10 [SB 19].
Edith Elizabeth Pollitz
So far, things are quiet in Florida this fall, so there is little to report.
The Senate is taking a good look at gaming. The Florida Senate Gaming Committee scheduled four public workshops in various locations in the state in October and November. The workshops are intended to gather information on the findings in the “Two-Part Gaming Study,” which was required in the 2013 session as a means of looking at the state’s gaming regulations. Senate President Don Gaetz noted that “gaming regulations have been amended piecemeal over decades,” one impetus for the review. The meetings aim to gather information regarding economic and social effects possible changes.
Ronald P. Michel
Several bills have been signed into law in Illinois during the summer months. Here are just a few of Illinois’ new laws:
House Bill 183 created the Firearm Concealed Carry Act which allows residents and non-residents who meet specified qualifications to apply for a license to carry a concealed firearm in Illinois. The Concealed Carry Licensing Review Board determines whether an applicant is eligible or ineligible for the five-year license. The Firearm Concealed Carry Act establishes training requirements and prohibits a licensee from carrying a concealed handgun into certain specified locations.
House Bill 1247 amended the Illinois Vehicle Code. The code previously prohibited the use of electronic communication devices for composing, sending or reading an electronic message, but House Bill 1247 prohibits the use of hand-held wireless telephones while driving. The bill establishes exceptions to the prohibition for hands-free devices, two-way radios and electronic devices capable of performing multiple functions as long as these devices are not used for a proscribed purpose.
House Bill 1 created the Compassionate Use of Medical Cannabis Pilot Program Act. The act provides that when a person has been diagnosed by a physician with a debilitating medical condition, the person and the person's primary caregiver may be issued a registry identification card by the Illinois Department of Public Health. The card permits the patient or the primary caregiver to legally possess no more 2.5 ounces of usable cannabis during a 14-day period. The usable cannabis must be derived solely from an intrastate source and is subject to a sales tax. House Bill 1 has a sunset provision that ends the pilot program four years after the effective date of the bill, unless the General Assembly renews it.
The interim between the first and second regular sessions of the 118th Indiana General Assembly has been one of the most intense in memory. Summer 2013 began with the first-ever Regular Technical Session Day held on June 12 to override Governor Mike Pence's veto of HEA 1546. The General Assembly met that day pursuant to a statute enacted in 1995 allowing it to meet to make technical corrections, resolve conflicts, and consider gubernatorial vetoes.
Regular interim study work began in the legislative branch soon thereafter. The number of study committee topics has been increasing in recent years and 2013 was no exception. A number of high profile education and transportation issues have highlighted a busy summer that reached its scheduled conclusion Nov. 1.
In addition, the General Assembly has responded to controversies emerging in the state's school accountability system by reviewing the school-by-school letter grades given by the Department of Education in 2012. The legislature entered into a memorandum of understanding with Governor Mike Pence and Superintendent for Public Instruction Glenda Ritzto form the Accountability System Review Panel to advise the State Board of Education in the creation of new designations of school performance.
Work on the total transformation of the General Assembly's computer and information systems continues on schedule. A new legislative website and an electronic committee management system will highlight the changes being made in the 2014 session.
The General Assembly is mourning the death of State Representative Phyllis Pond in late September at the age of 82. Representative Pond was first elected to the House of Representatives in 1978 and was the longest-serving woman in the history of the Indiana General Assembly at the time of her death.
Maine Capitol Connection. The Legislature currently provides live streaming of the audio and video of the Senate and House sessions, as well as the audio of joint standing and select committees, via the Legislature’s website (http://www.maine.gov/legis/). At the request of Maine Public Broadcasting, the Maine Legislature’s Legislative Council in January approved the network’s proposal for a free over-the-air State House news channel called “Maine Capitol Connection.” The proposal identified the endeavor as a six-month pilot project, with planned coverage of the legislative, judicial and executive branches in Augusta.
The broadcasts covered daily sessions of the House and Senate, as well as public hearings and work sessions of specific joint standing and joint select committees. Broadcasts were available on at least one cable television provider, and online either live or in replays.
(from http://www.mpbn.net/News/MaineCapitolConnection.aspx ): The mission of the Maine Capitol Connection is to provide:
1. Citizens with the means to watch their state government at work.
2. Elected and appointed officials and others who influence public policy with a direct conduit to citizens without filtering their points of view.
3. The audience with frequent access to elected and appointed officials, governmental bodies, agencies and commissions, and other decision makers.
4. Students and educators with a working knowledge of Maine state government.
5. Adherence to broadcast production values that accurately convey the business of state government without editing, interpreting or distorting the proceedings.
Vetoes. Republican Governor Paul LePage vetoed 82 bills passed by the Maine Legislature during the first regular session this year. No governor has come close to this number of vetoes. In 1977, Governor James Longley, an independent, issued 49, which was the record up til now. Democrats control the Senate (19-15-1 [unenrolled]) and the House of Representatives (89-58-2 [Independent]-2 [unenrolled]). Of the 82 vetoes, 77 were sustained. The Maine Constitution requires a two-thirds vote of those present and voting in each house to override a Governor’s veto, and the Legislature provided it in both the House and Senate on five bills: the biennial budget (LD 1509, Public Law 2013, chapter 368) and an energy bill (LD 1559, PL 2013, c. 369), both requiring a two-thirds vote to go into effect immediately; a bill to require a warrant to obtain cell phone location information (LD 415, PL 2013, c. 409); a bill to change the document fees for county registries of deeds (LD 559, PL 2013, c. 370); and a Science, Technology, Engineering and Mathematics (STEM) education and workforce bill (LD 1132, PL 2013, c. 410).
During its 433rd session, the General Assembly of Maryland considered more than 2,600 bills and resolutions from January to April, 692 of which were enacted. Most of the measures took effect October 1, 2013.
The Firearm Safety Act of 2013, which passed at the end of the 2013 session and became law on October 1, is comprehensive legislation that, with specified exceptions, bans any assault weapon, defined as an assault pistol, an assault long gun, or a copycat weapon; reduces detachable magazine capacity in the state from 20 to 10 rounds of ammunition for a firearm; and prohibits the possession or use of restricted firearm ammunition (sometimes called “cop killer bullets”) during or in relation to the commission of a crime of violence. The law also establishes, with specified exceptions, a new licensing scheme for handguns under the authority of the State Police. It a state and national criminal history records check with the submission of a complete set of fingerprints, as well as completion of a safety training course.
Other provisions define prohibitions applicable to possession of a regulated firearm, rifle or shotgun for people with mental disorders, including those who have been voluntarily admitted for more than 30 consecutive days or involuntarily committed to a facility. A process to apply for relief from firearms disqualification is also delineated in the law. There are registration requirements for people moving into the state and reporting requirements for lost or stolen firearms. There are also extensive licensing qualifications and recordkeeping requirements for firearms dealers and exemptions from criminal prohibitions, importation and storage activities for a licensed firearms dealer or manufacturer relating to assault weapons and detachable magazines.
Another new law establishes a Center for School Safety to operate as an independent unit of state government to provide a coordinated approach to safety issues. A separate center will be operated by the State Police. Also, local boards of education in conjunction with the State Board of Education must implement a comprehensive evaluation and reporting process related to each public school’s emergency management plan. Additionally, there is $25 million for statewide public school security improvements and a directive that counties and local education agencies give priority to installing controlled access measures in all public schools.
There are new laws that continue the implementation of the federal Affordable Care Act. The General Assembly and the governor also agreed to permit the trial use of medical marijuana through academic medical centers. In Maryland it will now be an affirmative defense, in a prosecution for the possession of marijuana or related paraphernalia, that the defendant was a caregiver and the marijuana or paraphernalia was intended for medical use by an individual with a debilitating medical condition.
Several enactments address the high unemployment rate of veterans and seek to ease the transition of military members and their families who move into the state. One law facilitates professional licensing for active military personnel, veterans and their spouses through the expedited issuance of business and health occupations licenses, registrations and certificates. Another law exempts honorably discharged veterans from paying out-of-state tuition at a public institution of higher education in the state if the individual resides in or is domiciled in the state. Additionally, public institutions of higher education must adopt guidelines on awarding academic credit for a student’s military training, coursework and education. An existing loan program for military reservists and National Guard personnel called to active duty, service-disabled veterans, and businesses that employ or are owned by these individuals was expanded to include all veteran-owned small businesses in the state.
Additional laws, which have garnered considerable public attention, authorize primary enforcement of the use of handheld cell phones by drivers operating motor vehicles and require that anyone riding in a motor vehicle, now including someone in a rear seat, wear a seat belt or be in a child safety seat. The later law is enforceable only as a secondary action. Both of these measures were effective on October 1.
The last official action of the 97th Missouri General Assembly took place on Sept. 11, with the annual veto session focused on 29 gubernatorial vetoes. A modern-dayrecord of 10 veto override motions (9 bills and an appropriation item) were approved, although two major override attempts came up short. House Bill 253 had covered a wide range of state tax issues, including reductions of business and individual income tax rates, tax amnesty provisions, and the streamlined sales and use tax agreement. The governor vetoed the bill on constitutional and budgetary grounds. The veto override motion failed by 15 votes to receive the necessary two-thirds majority on a 94-67 vote.
Another vetoed bill, HB 436, would have attempted to nullify federal gun laws and bar publication of the name of any gun owner. The override motion came one vote short in the Senate, failing on a 22-12 vote. Both the president pro tempore and the majority floor leader voted against the override, with the former stating, "My love of the Second Amendment does not trump my love for the First."
Among the 10 successful overrides were bills to: limit punitive damages for injured miners by a certain lead-mining company (HB 650); allow public governmental bodies to conduct votes via video-conferencing (SB 170); eliminate the current ban on foreign ownership of farmland by allowing a limited amount as approved by the state Department of Agriculture (SB 9); prevent uninsured motorists from collecting noneconomic damages from an insured driver in an accident (HB 339); and continue appropriation for a certain vocational education school.
Prefiling bills for the next legislative session begins Dec. 1. Convening the first regular session of the 98th General Assembly will occur on Jan. 8, 2014.
Since the 2014 General Assembly adjourned April 3, two topics have dominated the media in the Commonwealth: the November election for governor and ethics issues.
The November election.
Virginia and New Jersey will elect governors in November. New Jersey incumbent Governor Chris Christie is favored to win a second term. But Virginia has a hot contest in progress. Incumbent Governor Bob McDonnell cannot be reelected; and the two candidates project very different images and positions. Republican Attorney General Ken Cuccinelli II is viewed as a conservative and tea party favorite. Democrat Terry McAuliffe served as Democratic National Committee chair. Negative ads flourished.
Out-of-state campaign donations are common. Around 25 percent of the $17.5 million in donations over $100 that McAuliffe received through Aug. 31 came from out-of-state donors. Similarly around 31 percent of the $10.8 million that Cuccinelli received in that period came from inside the Commonwealth. See, the analysis by the Virginia Public Access Project, a nonpartisan group that tracks money in politics. http://www.vpap.org/
Polls taken Sept. 22 and 23 give McAuliffe a five or six point lead with six weeks left to campaign. As one opinion piece noted, the negative ads have succeeded: neither candidate has a positive public approval rating.
Governor McDonnell's final year in office has been marred by a stream of ethics questions involving gifts and loans—some as big as $145,000—that a Virginia businessman provided to the governor and his family. The same businessman also made gifts valued at $18,000 to Cuccinelli. These ethics questions have prompted comments that Virginia's ethics and campaign laws are among the weakest in the country and spurred multiple calls for legislation to strengthen them. Virginia does not place limits or caps on gifts or campaign contributions, but relies on disclosure requirements. Legislative proposals in this area is very likely in the 2014 General Assembly session.
It took the regular session plus two special sessions for the Legislature to wrap up its 2013 work. The 2013 regular session began with the Legislature facing a current level budget shortfall of approximately $900 million, even though recent quarterly revenue forecasts have greatly stabilized, providing much less change than forecasts in prior years. This shortfall was caused in part by expiring taxes and a court decision impacting estate tax revenues. The Legislature also had to address a state Supreme Court ruling--McCleary v. State, 173 Wn.2d 477 (2012)—holding that the state is not meeting its constitutional requirement to amply fund K-12 education.
To address McCleary, the 2013-15 K-12 operating budget contains $982 million in enhancements for basic K-12 education. This was primarily achieved by various fund transfers and revenue redirections as opposed to the enactment of new revenue. The state Supreme Court, as part of its decision in McCleary, has retained oversight in the form of a report by the Legislature to the court within 60 days after the operating budget is signed into law. The report is designed to help the court monitor compliance with its decision to ensure full funding of K-12 education by 2018. The most recent report was submitted at the end of August.
Several notable policy bills were enacted by the Legislature in 2013.
ESHB 1341 authorizes compensation for people who have been wrongfully convicted. Individuals who substantiate a wrongful conviction of a felony offense in superior court may bring a claim for compensation. Compensation is similar to the amounts paid by the federal government. A wrongly convicted person will receive $50,000 for each year of imprisonment, including time spent awaiting trial. An additional $50,000 will be awarded for each year on death row. A person will receive $25,000 for each year on parole, community custody, or as a registered sex offender.
E2SSB 5193 substantially modifies the compensation program for owners of livestock who suffer losses due to wolf attacks. The additional funds for the program will come from an increase in the cost of personalized license plates.
2E2SSB 5296 modifies the state's toxic-waste cleanup program. The program is funded by a tax on "hazardous substances," including petroleum products. The tax revenues have been substantially redirected in recent years to address the state's budget troubles. The bill has many provisions, but its core purpose is to refocus spending of hazardous substance tax revenues on the cleanup of toxic waste sites.
E2SSB 5912 imposes stricter restrictions on drunk drivers. Under the new law, repeat offenders will be booked into jail on their second offense. They must install an interlock ignition device on their car within five days of their release, and some will be required to participate in an electronic alcohol monitoring program.
The Legislature enacted several significant revenue-related bills, with one specifically addressing a state Supreme Court decision impacting state estate tax revenues.
Chapter 8, Laws of 2013, 2nd sp.s. (2E2SHB 1971) significantly changes the taxation of the telecommunications industry. Prior to the passage of this legislation, a sales tax exemption applied to land line telephone service. Cellular phone service companies argued that the exemption should apply to residential cellular phone service as well, and challenged the applicability of the exemption in court. The 2013 legislation eliminates the sales tax exemption for all residential telephone service thereby extending state and local sales tax to all telephone service. The legislation also repeals dedicated taxes for the Washington Telephone Assistance Program, which provides subsidies for low-income telephone service, and the Telephone Relay service, which provides subsidies for telecommunication service for the deaf and hard of hearing. These programs are now funded out of the state general fund. The legislation also requires retailers of prepaid wireless service to collect the state and county Enhanced 911 taxes. Last, the legislation establishes a state universal service program to help offset expenses for high cost phone service in rural areas.
On October 8, 2012, the state Supreme Court in In re Estate of Bracken, 175 Wn.2d 549 (2012), held that certain types of marital trust property are not subject to the Washington estate tax. The total fiscal impact from this decision was estimated to be $160.1 million for the 2013-15 biennium, with approximately $100 million associated with anticipated and pending refund requests. With the enactment of Chapter 2, Laws of 2013, 2nd sp.s., (EHB 2075), the Legislature restored the application of the estate tax to this marital property. The legislation also included a new tax exemption for certain small business interests, an annual inflationary adjustment to the $2 million general exclusion amount, and an increase to the top four estate tax rates.
ESSB 5882 is an omnibus bill that creates or extends 15 new tax preferences ( i.e. tax credits, exemptions, deductions, etc.), and also creates new transparency and accountability provisions that will apply to the enactment of future tax preferences. Future tax preferences will be subject to an automatic 10-year expiration date unless an alternate expiration date is provided. Tax preference legislation must provide explicit intent language, metrics and data sources to measure the effectiveness of the tax preference.
Two state-wide initiatives will appear on the November ballot.
Initiative Measure 517 addresses the initiative and referendum process with three main components: First, it establishes protections for persons who are gathering signatures or those signing initiatives or referenda. It makes it the crime of disorderly conduct to interfere or retaliate against a person collecting signatures or signing an initiative or referendum. Second, it requires that any state or local initiative with the necessary signatures to be submitted to voters—even if there has been a successful pre-election challenge. Third, it allows an initiative to be submitted up to 16 months before the election as opposed to 10 months.
Beginning July 1, 2015, Initiative Measure 522 would require most genetically engineered: raw agricultural commodities; processed foods; seeds; and seed stocks, to be labeled as genetically engineered when offered for retail sale. In other words, foods sold at retail need to be labeled as containing genetically-engineered ingredients.
Since the first regular session of the 81st Legislature concluded April 17, the Legislature’s monthly interim study meetings continue and will conclude immediately before the next regular legislative session. Among the nearly 100 topics assigned for study are aging watershed dams and channels; distribution of power to rural communities; Feed to Achieve and senior food vouchers; higher education funding issues; funding issues for local health departments, volunteer fire departments, libraries and the State Park system. Others include issues arising from declining revenues from lottery and gaming; tolls and other revenue sources for highway maintenance and construction; leasing of horizontal gas wells; governance of health and human resources agencies; implementing new public education reform legislation; and implementing the expansion of Medicaid. A complete list of study topics may be found at the Legislature’s website.
On June 15, Delegate Richard Thompson resigned as speaker of the House of Delegates. Only one time has this happened before in West Virginia. Concurrently with his resignation, he accepted a gubernatorial appointment as the state Secretary of the Department of Veterans’ Assistance. On June 18, the House convened and elected Delegate Timothy R. Miley to serve the unexpired term as Speaker of the House of Delegates for the 81st Legislature. He is the 56th speaker of the state, which celebrated its sesquicentennial this summer.
Members are not up for election this year. The second regular session of the 81st Legislature will convene Jan. 8, 2014 for 60 days. 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.
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. If you would like to contribute to this column, please contact email@example.com for more information.
AK Kathryn Kurtz
AL Karen Smith
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 Gordon Self
LA Clifford Williams
MA Louis Rizoli
MD Sherry Little
ME Peggy Reinsch
MN Karen Lenertz
MO Russ Hembree
MS Ted Booth
MT Todd Everts
ND Jay Buringrud
NE Scott Harrison
NH Paul Lindstrom
NJ Howard Rotblat
NV Brenda Erdoes
OK Scott Emerson
OR Ted W. Reutlinger
PA Joshua Funk
TN Emily Ogden
VA Mary Spain
VT Michele Childs
WA Jeffrey Mitchell
WI Cathlene Hanaman
WV Mark McOwen
WY Dave Gruver