Oct/Nov 2006 NCSL State Legislatures Magazine: Trends and Transitions

State Legislatures text graphic
October/November 2006

October/November 2006 Contents

Trends and Transitions

People & Politics
No Work Left Behind
Energy Efficiency Pays
Grape Expectations
Local Governments Wary of New Eminent Domain Laws

People & Politics
Maryland Senate President Pro Tem Ida Ruben, a 32-year veteran of the legislature, lost her primary race in August, as did Senator John Giannetti, a freshman Democrat who unseated a 37-year incumbent last election and then sided with the Republican governor on several controversial issues. He lost to former delegate and Ambassador to Romania Jim Rosapepe.

Carol Petzold lost a three-way Democratic primary for a Maryland state Senate seat. Petzold was chair of the NCSL Women’s Network. She and another member of the House of Delegates, Adrienne Mandel, lost to newcomer Mike Lenett. Senator Paula Hollinger finished third in a three-way Democratic primary to John Sarbanes, son of retiring U.S. Senator Paul Sarbanes in the Baltimore congressional district being vacated by Representative Ben Cardin (former Speaker of the Maryland House), who won the U.S. Senate primary.

In New Hampshire, Senator Robert Boyce who the Concord Monitor said had “the most conservative voting record in Concord” lost his bid for reelection to a former football coach. Boyce was chair of the Senate’s Internal Affairs Committee that handles election-related bills. He was vice chair of the Senate Finance Committee and was the New Hampshire state co-chair of the American Legislative Exchange Council.

New York Democratic Senator Ada Smith lost a close primary. Smith lost her Senate leadership position a couple of years ago after negative publicity involving a traffic citation, and controversy seemed to dog the incumbent through the primary election.

One primary race that drew national attention was the battle in the Democratic primary for the 5th congressional district in Minnesota. State Representative Keith Ellison defeated several opponents for the right to be on the fall ballot and fill the seat of retiring U.S. House member Martin Sabo, former NCSL president and one of NCSL’s founding fathers. Sabo served in the Minnesota Legislature for many years, including time as the House speaker. Ellison could become the first Muslim ever elected to Congress and the first African-American elected to the U.S. House from Minnesota if he wins in November.

Senator Steve Kelley, chair of the Minnesota Senate Education Committee, lost the Democratic primary for attorney general to Assistant Attorney General Lori Swanson. Minnesota Senate Majority Leader Dean Johnson beat back a challenge in a Democratic primary.

In Arizona, Republican Senate incumbent Toni Hellon, chair of the K-12 Education Committee, lost her effort to return to Phoenix. Former state senator Gabrielle Giffords won the Democratic primary in the 8th congressional district and will face off in November against the Republican winner, former state Representative Randy Graff, who defeated state Representative Steve Huffman in a close contest to succeed retiring Representative Jim Kolbe.

Common sense and the Constitution won in this case,” said House Speaker Jim Weiers, in reaction to a decision by the Arizona Supreme Court that the governor exceeded her line item veto power when she vetoed a portion of a bill related to state employee compensation. “The Legislature is not going to tolerate power grabs by any governor, Democrat or Republican,” he said. The Legislature brought the case against Governor Janet Napolitano, challenging the validity of the veto. The court agreed. In an opinion issued Sept. 12, 2006, the court ruled that the section in question “does not set aside a defined amount of public revenue from any specific funding source” and is not subject to line item veto power. Furthermore, the “Legislature’s right to have the votes of a majority given effect has been overridden and the Legislature, as an institution, has sustained a direct injury to its authority to make and amend laws by a majority vote.” NCSL filed an amicus brief in support of the Legislature.

Arizona Representative Jonathan Paton missed the primary election and he won’t be around for the general either. Paton was deployed to Iraq in August for five months. A freshman, he is one of eight state lawmakers around the country currently deployed with the military and one of 57 state legislators in 30 states in the military, according to Representative K. Mark Takai of Hawaii. Takai began surveying legislative leaders after he was released from active duty in November 2005. Thirty legislators are currently or have been deployed at some time during their legislative service. Defense Department regulations allow Paton to continue as a lawmaker and candidate throughout his deployment. Takai launched the National Network of Legislators in the Military at NCSL’s Annual Meeting in Nashville in August.

No Work Left Behind
Life sometimes gets in the way of work. The birth or adoption of a child, caring for a sick family member, or recovering from a serious illness requires time off from work. The Federal Family Leave Act, passed in 1993, allows 12 weeks of unpaid leave in a 12-month period for these kinds of family events. Many families, however, simply cannot afford to go without a paycheck for very many weeks, if at all.

California is the first, and so far the only, state to provide paid family leave for all employees, both public and private. Passed in 2002, its law allows workers to deduct a small premium from their paychecks to participate in the State Disability Insurance Program.

Under the program, workers are entitled to a maximum of six weeks leave each year for the birth or adoption of a child or to care for a seriously ill parent, child, spouse or registered domestic partner. They receive 55 percent of their weekly wage, up to a maximum of $840. The program is administered by the state and the benefits are paid for by workers, not by employers. Even so, some employers express concerns about lost time on the job and training costs for replacement workers.

Twelve states and the District of Columbia have adopted their own family and medical leave acts. California, Hawaii, Illinois, New Jersey and Ohio provide paid family leave for state employees. Four states—Connecticut, Hawaii, Washington and Wisconsin—allow private employees to use their regular sick leave for family leave.

Many states have considered legislation in the past several years that would provide for either paid or unpaid family leave. Bills were introduced in 15 states in 2005 and in 19 states during the 2006 legislative sessions. None providing for paid leave have passed. Those that make family leave appealing for both employees and employers are more likely to be supported by businesses.

For more information on California’s law, visit http://www.edd.ca.gov/fleclaimpfl.htm.

Energy Efficiency Pays
The Hawaii Legislature recently joined New Hampshire in establishing a Pay-As-You-Save (PAYS ®) pilot project. The program allows building owners and tenants to purchase and install renewable energy products with no up-front payment or debt commitment. A charge is added to utility bills for as long as the owner or tenant occupies the building. When they leave, the charge passes to the next owner or tenant. In Hawaii, all customers at a building with a PAYS ® solar hot water heater will pay less than they would have without the energy saving equipment. The charge is structured to be less than the energy savings over the course of each year.

A customer’s electricity distribution company, energy supplier, a third-party capital provider or product vendor provides the up-front capital to purchase the equipment. Whoever supplies the capital is repaid (including financing costs) through the customer’s monthly PAYS ® tariff.

Developed by the Energy Efficiency Institute’s Paul Cillo and Harlan Lachman, PAYS® requires regulatory approval in most jurisdictions. In some cases, regulators may desire legislative approval to authorize the program. The tariffed charge is treated like any utility charge, meaning that nonpayment by the owner results in disconnection, and a utility can recover bad debt.

From a state perspective, the only costs of implementing PAYS ® are for the design and set-up of the regulations and tariff. States can use any sources of capital to fund the equipment installations.

PAYS ® works in both regulated and deregulated energy markets. Michigan also is considering the system.

Grape Expectations
Fine wines delivered to your doorstep—that’s the idea of direct-to-consumer shipping. But it’s an issue that has been actively litigated and legislated in recent years. The U.S. Supreme Court weighed in on the direct shipping of wine in the May 2005 Granholm v. Heald ruling. The case involved challenges to Michigan and New York laws that prohibited or severely restricted out-of-state wineries from shipping their product directly to consumers in those states. In-state wineries were allowed to ship directly.

The Court ruled that a state cannot treat in-state and out-of-state wineries differently and therefore the two laws were unconstitutional. States either had to allow both to send their product to consumers or prohibit it.

At the time of the decision, about half the states allowed out-of-state wineries to ship directly to customers. It was done through a permit process that regulated limited shipments or through reciprocal agreements with other states. Since the Granholm ruling, many states have re-examined their laws. Michigan and New York opened their borders to shipping. Courts in Florida, Ohio and Pennsylvania struck down the state wine shipping laws based upon the Supreme Court decision. Now at least 37 states allow some degree of direct shipping, although the methods and regulations vary.

Local Governments Wary of New Eminent Domain Laws
State eminent domain laws passed in the wake of the controversial Kelo decision have made it harder for local governments to approach redevelopment. And the fallout isn’t over yet, legislators were told in a crowded session at the National Conference of State Legislatures’ 2006 Annual Meeting.

When the U.S. Supreme Court decided on June 23, 2005, that it would not over-rule the Connecticut Supreme Court in Kelo v. City of New London, it set off a firestorm of public criticism. “It went from being a non-issue in Georgia to a snowball rolling down a hill,” said Georgia’s House Speaker Glenn Richardson.

The Supreme Court’s decision essentially allowed private development to occur over the objections of local landowners if it was deemed to be for a “public purpose.” That caused a huge legislative response. Forty-six states have had legislative sessions since Kelo and 31 of them—two-thirds—passed legislation to limit eminent domain powers. Six states proposed constitutional changes.

Laws passed fall into seven categories:

Prohibit eminent domain use for economic development.
Bar such use to increase tax revenues.
Ban a transfer of private property to another private owner.
Define the term “public use” more narrowly to reduce such takings.
Restrict the use of eminent domain to blighted property and redefine what constitutes blight.
Change the process to require public hearings, more open transactions and more public input.
Require compensation at greater than market value.

Pace Law School Professor John Nolon views the new laws as trouble for cities. State legislators have so tightened the rules that “cities that have no other opportunity … except for redevelopment” have lost the ability to pursue a viable future, he says.

Many new restrictions bar the use of eminent domain to improve the tax base, he noted. Cities challenged by under-employment, population loss and “lulus,” or “locally unwanted land uses” like hospitals and nonprofit landowners, may so bog down some cities that the only possible development is redevelopment, he said.

Other summaries from sessions at the 2006 NCSL Annual Meeting are available at www.ncsl.org/programs/press/2006/notesfromnashville_summaries.htm

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