NATIONAL C ONFERENCE OF S TATE L EGISLATURES

Legal Services Staff Section THE LEGISLATIVE LAWYER “To Better Serve Our Legislatures”

Volume XXII, When Does the Term Limits Clock Begin to Issue 1 May 2008 Run in Louisiana? BY J ERRY G. J ONES

In an election suit challenging candidacy quali- "For purposes of Article III, Section 4(E) of the fications, the Louisiana Supreme Court, by a 6- Constitution of Louisiana only, the service of a 1 vote in a case of first impression, concluded person who is elected to fill an unexpired term that the term limits provision of the Louisiana in the office of state legislator shall begin at the time such person takes the oath of office before constitution precluded a state senator from his house of the legislature." NCSL seeking re-election. Background - Fact . On December 13, 1997, Background - Law . Adopted in 1995, Article Cleo Fields was elected in a special election to III, §4(E) of the Louisiana Constitution states: Available on the fill a vacancy in the state senate. The election Web at: "No person who has been elected to serve as a results were promulgated on December 18. On http://www.ncsl.org/ member of the Senate for more than two and December 23, Senator Fields timely submitted programs/legman/ one-half terms in three consecutive terms, that his oath of office to the secretary of state. 4 legalsrv/lssshome.htm service being during a term of office that began on or after January 8, 1996, shall be elected to A special session was held by the Legislature in the Senate for the succeeding term. No person March of 1998. On March 23, the first day of who has been elected to serve as a member of the special session, Senator Fields took a sec- To submit an article for the House of Representatives for more than two ond oath of office before the Senate, reciting publication, please and one-half terms in three consecutive terms, the same text as in the previous oath. contact the editor. that service being during a term of office that began on or after January 8, 1996, shall be Senator Fields was subsequently elected to two E-mail : elected to the House of Representatives for the consecutive four-year terms as senator. [email protected] succeeding term ." Telephone : In September of 2007, Senator Fields filed a (303) 866-2157 The constitution provides that legislators notice of candidacy to run again for the same elected in regularly scheduled elections serve Mail : 1 senate seat. Suit was promptly filed to chal- State Capitol, Room 091 four year terms. They take office on the same lenge the candidacy. Denver, CO 80203 day as the governor and other statewide elected officials, noon on the second Monday in Janu- District Court and First Circuit Court of ary next following the election. 2 Appeal. The plaintiffs filed suit in district court objecting to the candidacy on the grounds that The constitution also specifies that vacancies in the senator was prohibited from seeking re- INSIDE THIS the legislature are filled by election, and that a election by the term limits provision in the con- person elected to fill the remainder of an unex- 5 ISSUE:I SS UE: stitution. Included within the suit petition was pired legislative term must take office within the allegation that, to the extent it conflicted thirty days after the secretary of state promul- 3 with the term limit provision language, the Term Limits Decision in gates the election returns. newly enacted statutory language in R.S. Louisiana ...... 1 In 2006, the Legislature enacted new statutory 18:601(B) was unconstitutional. language, La. R.S. 18:601(B), adding to the Bills of Attainder ...... 4 state election code the following provision: (Continued on page 2)

State News ...... 6 1. La. Const. Art. III, §4(C). 2. La. Const. Art. III, §5(A) and Art. IV, §3(A). 3. La. Const. Art. III, §§4(D) and 5(B). 4. La. Const. Art. X, §30 - "Every official shall take the following oath or affirmation: 'I, . . ., do solemnly swear (or affirm) that I will support the constitution and laws of the United States and the constitution and laws of this state and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as . . ., according to the best of my ability and understanding, so help me God.'" 5. La. R.S. 18:1401, et seq, sets forth specific requirements for challenges in election matters, including time periods for filing and expediting of judicial proceedings. Page 2 THE L EGISLATIVE L AWYER Volume XXII, Issue 1

The plaintiffs claimed that under the language of the constitution Five judges on the First Circuit dissented, concluding that the Fields had served more than two and one-half terms and could language of the term limits provision created a question of how not run again, whether the term limits clock began to run on the to calculate the applicable time period when less than a full four- date he was elected or the date he took the first oath of office. year term was involved. The legislature had appropriately ad- dressed the question via the language of R.S. 18:601(B) and, Fields responded with several exceptions (defenses by motions) absent a finding of unconstitutionality with the challenging party to the suit and a motion for summary judgment. The exceptions meeting its heavy burden of proof of showing invalidity, the included that the court lacked subject matter jurisdiction, based statute and its effects should not be disturbed. upon the language in the state constitution stating that each house of the legislature "shall be the judge of the qualifications The Louisiana Supreme Court . The Louisiana Supreme Court and elections of its members." 6 The exceptions and motion fur- granted review from the First Circuit's ruling and quickly held ther argued that, primarily because of the newly enacted lan- oral arguments. Judgment was rendered a few days later. guage in R.S. 18:601(B), no cause of action had been stated in the suit and the court accordingly should rule in favor of Fields. The Court, by a 6-1 vote, concluded that under the language of the term limits provision, the determinative Applying the provisions of R.S. 18:601(B), David Deculus, Clara Deculus, Della date is the date a member is "elected to serve". claimed Fields, the term limits "clock" did Neely and Nancy Salemi v. Doug Wel- This is the date that starts the term limits not begin to run for him until the date he took born, Clerk of Court for East Baton "clock". Calculating from this date, Fields had the second oath of office before the Senate in Rouge Parish and Candidate Cleo already served more than two and one-half March of 1998. Therefore, he had not yet Fields , No. 2007-C-1888, Louisi- terms and was thus ineligible to run for another served two and one-half terms and was quali- ana Supreme Court, October 1, term. The judgment of the court of appeal was fied to run for a third full term. 2007. affirmed. Judicial procedures were expedited as required by the state elec- Reviewing the legislative history of the joint resolution in 1995 tion code. 7 The district court overruled Fields' exceptions and that proposed the term limits constitutional provision 9, the state motion for summary judgment, finding that it did have subject Supreme Court noted the changes in the resolution's language matter jurisdiction and the plaintiffs' petition did state a cause of that took place during legislative passage, and concluded: action. However, the district court rendered judgment in favor of Fields, finding him to be qualified under the newly enacted "The clear language of the constitutional provision, buttressed by an analysis of the legislative history, establishes that the people statutory language. enacted an amendment to the Constitution which provides that the Sitting en banc , the First Circuit Court of Appeal, by a 7-5 vote, date of the election is determinative in an analysis of the applica- bility of term limits. affirmed that portion of the trial court's judgment finding subject 8 matter jurisdiction , but reversed the trial court's judgment find- Because we find that the date a legislator is elected to serve is ing Fields to be qualified. Reviewing the term limits provision in operative in determining whether he is term limited under La. the constitution, the First Circuit concluded that Fields had al- Const. art. III, § 4(E) it is therefore necessary to determine when ready been elected to serve as a member of the Senate for more a candidate is officially elected . According to La. R.S. 18:576(C), than two and one-half terms, and was thus ineligible to run the secretary of state is required to compile the results of the elec- again. tions immediately upon receipt of the results from the clerks of court and must make the compiled results available to the press With regard to the new language in R.S. 18:601(B), the First and public. These election night results, however, are unofficial. Circuit stated, "To the extent LSA-R.S. 18:601 may be inter- La. R.S. 18:576(D). Following election day, the secretary of state is required to promulgate election returns on or before the twelfth preted to be in derogation of the clear language of the Louisiana (Continued on page 3) constitution, it is unconstitutional."

6. La. Const. Art. III, §7(A). 7. The plaintiffs' petition was filed in district court on September 10 and the decision of the state supreme court was rendered on October 1. The Louisiana Elec- tion Code, La. R.S. 18:1401, et seq, sets forth specific requirements for challenges in election matters, including time periods for filing and expediting of judi- cial proceedings. 8. The First Circuit Court of Appeal stated in its opinion:

Senator Fields maintains that under LSA-Const. art. III, § 7(A), the legislature has the exclusive constitutional authority to judge the “qualifications and elections of its mem- bers.” The legislature's authority under LSA-Const. art. III, § 7(A) to judge the “qualifications and elections of its members” occurs after an individual has been elected to a legislative position, after the individual has become a member of the legislative body. To conclude otherwise would make the disciplinary remedies provided for therein- punishment for disorderly conduct or contempt, or expulsion-nonsensical.

Louisiana Constitution article III, section 7(A) has no bearing on the district court's authority to adjudicate the plaintiffs' challenge to Senator Fields's qualifications as a candi- date in the October 20, 2007, election for the office of Senator of Senate District 14, pursuant to LSA-R.S. 18:492. District courts have original jurisdiction over disputes regard- ing the “right to office or other public position.”LSA-Const. art. V, § 16(A). District courts “shall have exclusive original jurisdiction of actions objecting to candidacy.” LSA- R.S.18:1403.

David Deculus, Clara Deculus, Della Neely and Nancy Salemi v. Doug Welborn, Clerk of Court for East Baton Rouge Parish and Candidate Cleo Fields, No. 2007 CE 1836, Louisiana First Circuit Court of Appeal, Sept. 19, 2007 (opinion unpublished as of this writing).

9. In Louisiana, amendments to the state constitution are by joint resolution approved by two-thirds vote of the elected members of both houses of the legislature, and ratified by a majority of the electors voting on it. La. Const. Art. III, §15(A) and Art. XIII, §1. A joint resolution is not submitted to the governor for approval or veto. La. Const. Art. III, §17 (B) and Art. XIII, §1. Volume XXII, Issue 1 THE L EGISLATIVE L AWYER Page 3 Do not miss NCSL's 2008 Legislative Summit!

This 2008 Legislative Summit--a meeting of ideas, solutions, innovations and connections--is in New Orleans, which is America's European masterpiece, a city of style and taste and the birthplace of jazz, July 22 - 26. The conference features Marvin Odum You'll "want to be in that number" when thousands of legislators and staff gather in New who was named president of Shell Oil Orleans at the Ernest N. Morial Convention Center for the most important conference of Company in March 2008. Before assum- the year. ing his new position, he was executive Plan to arrive Tuesday, July 22, in the early afternoon and attend standing committee and vice president of the company's explora- staff section sessions, which are open to all attendees. The Louisiana Host Committee will tion and production operations in the welcome you at an unforgettable party Wednesday night. Stay 'til Saturday! western hemisphere, contributing to its leadership in addressing the nation's cur- After a busy week full of issue forums, committee rent and future energy needs. Be sure to attend our hot topic session, meetings and provocative speakers, stay Friday Immigrants and Economics: What's night so you can attend the spectacular closing night event at the World War II museum and the Bottom Line?, to hear the pros the Contemporary Arts Center. On Saturday morning you'll hear from two of the nation's and cons of foreign workers in the U.S. premier pollsters, and then take advantage of volunteer opportunities: join in to assist Sec- economy and what it means for state ond Harvest Food Bank of New Orleans, or brave the bayou and venture deep into the Lou- budgets. You'll hear from leading isiana swamps to help replant the wetlands. economists and researchers, and find out what actions states have taken re- Fabulous tours are available for your spouse or guest, and a children's program that includes lated to immigrants. music, cooking and the bayous--the best that Louisiana has to offer.

(Continued from page 2) stitutional term limits, but rather determines when a legislator's day following the primary or general election. La. R.S. 18:574(E). service begins." (footnotes omitted). In an uncontested election, the election returns compiled and promulgated by the secretary of state shall be the official results. In footnote to the above statement, the Court further explained La. R.S. 18:575(A). Therefore, according to the foregoing provi- that while "there is disagreement as to whether the court of ap- sions of the Election Code, the date the secretary of state promul- peal ruled La. R.S. 18:601(B) unconstitutional, because of our gates the election returns is the date on which a candidate is offi- ruling today, La. R.S. 18:601(B) and La. Const. art. III, § 4(E) cially elected. may be harmonized; therefore, any discussion of the constitu- In the instant case, the election to fill the vacancy in Senate District tional issue by the court of appeal was unnecessary. As such, 14 took place on December 13, 1997. The secretary of state prom- whether or not La. R.S. 18:601(B) is unconstitutional is of no ulgated the election returns on December 18, 1997, within the 12 moment for our present analysis, thus we express no opinion on days required by La. R.S. 18:574(E). The first term to which Sena- the constitutional issue." 10 tor Fields was elected began on January 8, 1996, and the half-way point of that term was January 9, 1998. Senator Fields was elected However, one justice in an additional concurrence noted regard- to serve the unexpired remainder of that term as of December 18, ing the statute that: 1997. Accordingly, because Senator Fields was elected prior to January 9, 1998, he was elected to serve for more than half of the "Emanating from the people, the constitution is the basic, funda- first term, and again for two more terms. Thus, he is precluded by mental law of this state and is afforded primacy. Enacted by the the constitutional term limitation set forth in La. Const. art. III, § legislature and signed into law by the governor, a statute cannot 4(E), from seeking re-election in the October 20, 2007, elec- contradict nor conflict with the constitution. The legislature cannot tion. " (footnotes omitted and emphasis added). effectuate a change in the constitution by legislative enactment without a vote of the people. For the purpose of resolving this The Court further concluded that the language of R.S. 18:601(B) matter, between these parties, the constitution clearly and unambi- was simply not relevant to the matter at issue, stating: guously resolves the issue and the statute must yield if the statute cannot be construed in a fashion which harmonizes it with the "Because the date of election is controlling and La. R.S. 18:601(B) constitution." 11 merely sets the date for the beginning of the legislator's term of service, La. R.S. 18:601(B) therefore becomes irrelevant for pur- The dissenting justice, reasoning as had the five appeal court poses of the constitutional term limitation found in La. Const. art. dissenters, concluded that the statute must be presumed constitu- III, § 4(E). Thus, we are required to apply only the Louisiana Con- tional until properly shown otherwise, that such proper showing stitution in this instance, not because La. R.S. 18:601(B) is mean- had not been made, and that the statute applied to render the ingless, but because it is not in conflict with La. Const. art. III, § 4 candidate qualified. 12 (E). Accordingly, La. R.S. 18:601(B) is not determinative in decid- ing whether a limitation is imposed on a candidate because of con- (Continued on page 5)

10. In addition to arguments regarding R.S. 18:601(B) made by the plaintiffs and defendants, the Louisiana Senate filed an amicus brief with the Supreme Court (a) expressing con- cern that the First Circuit Court of Appeal's statements on the statute's constitutionality were confusing and lacked guidance both for potential candidates and for legislative bod- ies judging the qualifications and elections of their members, and (b) pointing out that, under separation of powers, appropriate consideration must be given by courts to the presumption of constitutionality of statutes and the importance of proper adherence to procedures for attacking the validity of statutes. The author was one of several attorneys involved in preparation of the amicus filing. 11. Justice Weimer, additionally concurring. 12. Justice Johnson, dissenting. Page 4 THE L EGISLATIVE L AWYER Volume XXII, Issue 1 Is Your Bill A Bill of Attainder? By Jack Stark

In recent years a number of states have enacted bills that directly Another part of the standard definition of bill of attainder, penalize persons for failure to comply with certain requirements. “judicial trial,” has also been an issue in cases. Courts have An example is a bill that invalidates the professional licenses of taken “judicial” and “trial” seriously. The court in Cummings, men who have fallen behind in paying child support. Another for instance held that the legislative branch, which imposed the example is a bill that imposes the same penalty on persons who penalty, did not operate under rules of evidence and did not al- are delinquent in paying taxes. At first glance such bills do not low for representation by counsel, and that the bill itself allowed seem to be out of the ordinary. However, their constitutionality for no flexibility in regard to the penalty. Some recent acts that is, at least, questionable. The relevant constitutional provisions are likely to implicate bill of attainder prohibitions create an are Article I, section IX, clause 3 of the United States Constitu- administrative procedure to decide whether the penalty imposed tion (forbidding the federal government from enacting bills of by a bill is legitimate. One problem is that an administrative attainder and leading to important case law defining such bills), hearing is not a judicial trial. Another problem is that the ear- Article I, section X, clause 1 of the United States Constitution marks mentioned in Cummings are unlikely to apply in an ad- (forbidding the states from enacting bills of attainder) and provi- ministrative hearing. Thus, it appears that merely creating an sions in state constitutions that have the same effect as the latter. administrative procedure is not enough to escape the constitu- tional bill of attainder provisions. The two leading cases on bills of attainder are Cummings v. Missouri, 71 US 277 (1866) and ex Parte Garland, 71 US 333 At this point it certainly appears that the bill of attainder doctrine (1866), which were handed down on the same day and are obvi- is a serious impediment to legislation. Unfortunately it is diffi- ously companion cases. The definition of bill of attainder in cult to predict the extent to which this is so. One reason for the those cases is “a legislative act that inflicts punishment without a difficulty is the occasional propensity of courts to stretch their judicial trial.” The latter case is particularly instructive because analyses beyond the bounds of credulity in order to validate bills the penalty is identical to those in some of the recent legislative that are attacked on this ground. That is particularly true in the acts that are referred to above. Garland, who had been involved seven bill of attainder cases in which the plaintiff was a member with the Confederacy, refused to take an oath of loyalty to the of the Communist Party. In general the case law on bills of at- United States. As a result he was denied the right to practice tainder is marked by contradictions, questionable logic and the law. In both cases the legislative acts in question were held to multiplication of methods of analysis, such as the efflorescence be unconstitutional. These two cases are still good law. In fact, of tests used to determine whether punishment was imposed. the later cases on bills of attainder are basically glosses on the definition that these cases set forth. In short, a legislative counsel who is charged with drafting legis- lation that might be a bill of attainder needs to be alert to that For example, in many later cases courts have propounded ways possibility and probably needs to do some research. Luckily, to decide whether punishment was inflicted. Many tests have others have been over this ground and have published the results been held to be relevant. Quite a few of them involve dichoto- of their work. One shortcut is to consult the Congressional Re- mies, with one of the elements indicating that punishment was search Service’s excellent analysis of all the provisions in the inflicted and the other indicating that it was not inflicted. One United States Constitution. It can easily be accessed at http:// dichotomy is right verses privilege. In cases that employ this www.findlaw.com/casecode/constitution/ . Another shortcut is dichotomy, revocation of a right is punishment but revocation of the long analysis of the bill of attainder case law in my Prohib- a privilege is not. Another is retroactivity (which is an identify- ited Government Acts: A Reference Guide to the United States ing characteristic of bills of attainder) verses prospectivity Constitution , which is part of a series of analyses of constitu- (which is an identifying characteristic of constitutional bills). tional provisions that is published by Greenwood Press and that One naturally identifies punishment with criminal penalties, but now consists of nineteen books. Garland is a civil case. In fact, bill of attainder cases character- istically involve civil penalties. Examples are loss of a job and Jack Stark is a retired attorney for Wisconsin’s General Assem- denial of student aid. bly and author of The Art of the Statute.

The 2008 Legal Services Staff Professional DevelopmentDevelopment Seminar will be held September 10 - 13 in Columbus, Ohio. This annual meeting aimed at attorneys and bill drafters in LSSS is hosted this year by the Ohio Legislative Service Commission with Rich Merkel and Lisa Sandberg as the host state chairs. The seminar will feature programs on topics relating to foreclosure and mortgage issues, election reform, election issues, juvenile crime, statutory construction, ethics for legislative attor- neys, and how to draft criminal laws. A drafting track will also be taught by Bruce Feustal of NCSL. For the program, continuing legal education credits will be applied for. Sessions will be held at the Columbus Renaissance Hotel and at the Ohio State Capitol. For more information, look at the LSSS portion of the NSCL website. Volume XXII, Issue 1 THE L EGISLATIVE L AWYER Page 5

Editors who edit bill drafts for legislatures or work on preparing statutes for publications are invited to attend a Professional Development Seminar for LegislativeLegislative EdEditors:itors: Why We Sweat the Small Stuff on October 15-17, 2008, in Denver, Colorado. The program committee of the Legal Services Staff Section is planning this conference with the host state, Colorado Office of Legislative Legal Services. Sessions will include how editors and drafters work together to produce quality bill drafts, strategies for communication in the legislative environment, understanding editing of a bill by understanding principles of bill drafting, proofreading "201", which will focus on drafting and editing checklists, manuals, technological methods for working smarter, editing from the publications' perspective, and sessions on improving your editing and writing skills. Sessions will be held at the historic Brown Pal- ace Hotel, located in downtown Denver, and at the Colorado State Capitol. The Colorado hosts are arranging for optional tours of the Capitol Dome, the Capitol, and the Governor's Mansion. For more information, look at the LSSS portion of the NCSL website. The editors conference is held every other year and this is the third editor’s conference for LSSS.

(Continued from page 3) and Representative Waddell was declared elected for another Afterward . Although expressing reservations about the court's term. opinion, Senator Fields accepted its conclusion and promptly endorsed another candidate in the race. 13 (The constitutional After that, it appeared the only challenge at the state level that provision does not prohibit a term-limited member from sitting could have been made to his taking office was a challenge at the out a term and then again seeking the same seat. Nor does it time of his January seating in the state House of Representa- prohibit a term-limited member of one house from seeking elec- tives, pursuant to the constitutional provision that each house of the legislature "shall be the judge of the qualifications and elec- tion to the other house, as nineteen legislators sought to do in 14 Louisiana.) tions of its members." Local legal scholars opined in news media reports that the Fields and Waddell situations were le- Regarding the court’s analysis of La. R.S. 18:601(B) as irrele- gally distinct, and that the state Supreme Court's ruling regard- vant, the author believes that such treatment may technically ing Fields may not be applicable to the seating of Waddell. 15 satisfy appropriate “judicial restraint” in avoiding constitutional Other media reports quoted some House members to the effect review of statutes whenever possible. However, given the plain that a challenge to Waddell's seating was being considered. 16 language of the statute that its provisions are for the term limits purposes only, the actual effect is the same as if the statute had News reports also stated that members of the NAACP were been declared unconstitutional. The court’s interpretation ren- considering federal court action regarding the state Supreme ders the statute meaningless in practice, while leaving it techni- Court's ruling, and whether allowing the seating of Representa- cally valid as law. tive Waddell would constitute a potential equal protection or other violation of federal law. 17 (Senator Fields is a black De- The court's ruling also potentially impacted another Louisiana mocrat and Representative Waddell is a white Republican.) legislator. Like Senator Fields, Representative Wayne Waddell Senator Fields asked supporters to drop further legal efforts to in the state House of Representatives was first elected to fill a challenge either the ruling or the seating of Waddell. 18 vacancy, subsequently elected for two more terms, and then On January 14, 2008, the Louisiana Legislature convened in qualified to seek an additional term. Also, like Senator Fields, if 19 the provisions of R.S. 18:601(B) were not applicable then the organizational session for the taking of office of its members. calculations from the date of Waddell's first election indicated Representative Waddell was seated without challenge or oppo- that he had already served more than two and one half terms. sition. Unlike Fields, however, Waddell had no opposition and no Jerry G. Jones is the Senate Counsel, Louisiana Senate, Baton challenge was ever made to his candidacy. The qualifying pe- Rouge, Louisiana and may be reached at riod and time period for filing challenges to candidacy ended, [email protected]

13. Gyan, Jr., Joe, and Shuler, Marsha. "Court: Fields Off Ballot", Baton Rouge The Advocate newspaper, October 2, 2007. 14. La. Const. Art. III, §7(A) - "Judging Qualifications and Elections; Procedural Rules; Discipline; Expulsion. Each house shall be the judge of the qualifications and elections of its members; shall determine its rules of procedure, not inconsistent with the provisions of this constitution; may punish its members for disorderly conduct or contempt; and may expel a member with concurrence of two-thirds of its elected members. Expulsion creates a vacancy in the office." See also, Salamanca & Keller, "The Legislative Privilege to Judge the Qualifications, Elections, and Returns of Members", 95 Kentucky Law Journal 241 (2006-2007). 15. Shuler, Marsha. "Fields: Ruling Applies to Republican", Baton Rouge The Advocate newspaper, October 3, 2007; Column, "Inside Report: Legalities Hit Fields, Spare GOP Senator", Baton Rouge The Advocate newspaper, October 17, 2007. 16. Maginnis, John. "Waddell's Seating to Be Challenged, Say Lawmakers", Louisiana Political Fax Weekly, October 12, 2007. 17. Shuler, Marsha. "Fields: Ruling Applies to Republican", Baton Rouge The Advocate newspaper, October 3, 2007; Column, "Inside Report: Legalities Hit Fields, Spare GOP Sena- tor", Baton Rouge The Advocate newspaper, October 17, 2007. 18. Shuler, Marsha. "Fields Asks End to Fight on Election Challenge", Baton Rouge The Advocate newspaper, October 18, 2007. 19. La. Const. Art. III, §2(D) - "(D) Organizational Session. The legislature shall meet in an organizational session in the state capitol to be convened at ten o'clock in the morning on the day the members are required to take office. No such session shall exceed three legislative days. The session shall be for the primary purpose of judging the qualifications and elections of the members, taking the oath of office, organizing the two houses, and selecting officers. No matter intended to have the effect of law shall be introduced at an organizational session." Page 6 THE L EGISLATIVE L AWYER Volume XXII, Issue 1

STATE NEWS

CALIFORNIA The secretary of state, Mike Coffman, decertified electronic Saskia Kim voting machines in December due to concerns about security In 2007, the Legislature sent 964 bills to Governor Arnold and accuracy. He has since recertified many machines but Schwarzenegger and he signed 750 of them into law— questions remain about the dangers of continuing to use elec- including measures that will finance the building of more prison tronic voting. A bill with bipartisan support has been intro- facilities, restrict access to social security numbers in public duced to return to an all-paper ballot, but county clerks want to records, prohibit smoking in cars when minors are passengers, use machines or do mail-only elections. The clerks have and increase motorists’ fees to raise millions of dollars for the dubbed the bill the "Help Colorado Wait in Line Act." The development of alternative fuel and clean-air technology. Most University of Denver created a panel to study the Colorado con- of these laws went into effect on January 1, 2008. stitution and make recommendations about ways to reform how the constitution is amended while preserving the citizen's right The governor rejected 22.2 percent of the bills; in fact, he has to do initiatives. A select committee of legislators has been vetoed nearly a quarter of all the bills that have been presented meeting to review their recommendations for constitutional to him by the Legislature since he took office. (Former Gover- reform. nor Gray Davis holds the record for the highest percentage of vetoes—24.91 percent in 2000—since such comparisons began Floor work of the Colorado House of Representatives is now in 1967.) being televised. After adjourning for the 2007 Interim Study Recess, the Legis- Security has been upgraded in the state capitol building since a lature reconvened on January 7, 2008 and approximately 1,900 person with a gun was shot and killed by the State Patrol just bills were introduced for consideration this year. outside of the governor's office. The new security has been a challenge to our office because one of only two staffed security COLORADO entrances is right outside our main office door. Debbie Haskins During a special session in 2006, the General Assembly re- The General Assembly created a special commission a few ferred a measure to the voters (Referendum K) that was ap- years ago to study health care options and health care reform proved. The legislation required the state attorney general to file for Colorado. The commission submitted five different plans to a lawsuit in federal court requesting that the federal government the General Assembly after the session had started. However, enforce immigration laws. A federal district court judge held since the fiscal impacts of the various plans were so costly, that the courts did not have jurisdiction over the issue. nothing seems to be moving forward. An interim committee looked at several different ways to change the structure of the Moreover, the judge stated that the attorney general failed to severance tax laws. prove that Colorado is at risk of a terrorist attack as a direct result of the federal government's failure to enforce immigra- A big issue this session includes whether to increase the sever- tion laws. Similar lawsuits in other states have also failed. ance tax on oil and gas interests in order to help with the state's budget and for what purpose such increase, if it is approved by The saga of the amendment 41 gift ban continues. A nonprofit the voters, should be used: group and various individuals, including a former state senator and a current member of the house of representatives sued Gov- Higher education, health, or roads? ernor Ritter seeking a declaration that the gift-ban in the voter- Another issue is whether to make changes to the state's conser- initiated and voter-approved amendment 41 was unconstitu- vation easement program. Conservation easements placed on tional. The plaintiffs argued that the gift ban and gift limit chill private lands prohibit most development, while allowing the and severely burden plaintiffs' exercise of first amendment owner to retain private ownership. In exchange the landowners rights to speak and associate with others, prohibit their ability to are given state income tax credits that can be sold for cash. give gifts to family members, prevent petitioning the govern- While land has been protected through this method, the pro- ment, and were vague. Last May, a district court judge issued a gram has recently been criticized because some tax credits have preliminary injunction against the governor from enforcing the been based on potentially inflated appraisals and some of the gift ban. In February 2008, the Colorado Supreme Court re- protected lands have questionable public value. versed the district court's order and directed the court to vacate Sen. Chris Romer has created what he believes is the first-ever the preliminary injunction. The court held that the governor "Wikipedia-style" legislation by soliciting the public's input on was a proper party defendant and that the amendment was self- a proposed bill draft on relieving skier traffic congestion on executing because it was to be implemented by an independent Interstate 70. He invited people to complete a short on-line ethics commission. The Court reversed the district court on the survey asking them to choose up to three proposed solutions. grounds that plaintiffs failed to present a constitutional chal- Based on that input, he is drafting a bill that will be introduced lenge that was ripe for review since the ethics commission was later this session. If you are interested, go to not yet in existence and has not yet had the opportunity to im- groups.google.com/group/fixI70now. plement or enforce the amendment. Volume XXII, Issue 1 THE L EGISLATIVE L AWYER Page 7

DELAWARE At the Division of Statutory Revision, the editorial staff is Rich Dillard shrinking. One of the division’s three legal editors transferred to Except for a Special Session of the Senate to confirm judicial House Bill Drafting 3 years ago; a second attorney retired at the nominations in late November, the first half of the 144 th General end of February 2008. Neither has been replaced. The office Assembly ended on July 1, 2007. Of the pending “hot button may be unique among state offices in that it basically pays for issues” mentioned in the previous issue, only the retroactive itself through sale of the statutes and laws it publishes. removal of the civil statute of limitations for sex crimes commit- October 2007 will be remembered more for special sessions than ted against minors [SB 29] has become law. The Senate Bill for black cats, witches, and Jack-O-Lanterns in Florida. Three regulating stem cell research [SB 5] was defeated in the House major issues dominated the 2007 legislative year. PIP insurance on June 30 th and the House Bill forbidding open containers of sunsetted on October 1. This caused all kinds of confusion for alcohol in cars [HB 20] passed the House but was not acted legislators, insurers, and the public. The first October session upon by the Senate. The others mentioned failed to come up for (Special Session C) was set for October 3-12, originally to con- any vote in the final 3 weeks of session. Nor have any been sider “only” a $1 billion budget shortfall; but PIP was added to acted upon in the first 5 weeks of the second half of the 144 th . the call. Meanwhile, consumers were flooded with paper from New on the hot button list for 2008 was a House Bill [HB 258] car insurers, urging them to support PIP’s demise. GEICO flew and a Senate Bill [SB 122] (both currently in the House) at- a plane over the state capitol during the October 3-12 special tempting to make changes in the law for people whose homes session, a banner streaming behind the plane featuring the visage are sited on land belonging to someone else. Officially called of one of the famous cavemen. It is unclear whether the mes- “manufactured home communities”, most people know them sage had something to do with PIP or was only intended as en- better as mobile home parks or trailer parks. The Speaker of the couragement to state employees to go with GEICO. On October House was publicly pushing for their consideration in January 5, the Legislature passed H.B. 13, which revived PIP and added but neither has been acted upon to date. Rumors of safeguards to avoid fraud. Budget slashing culminated with an “compromise legislation” have made the papers but as yet has interim appropriations bill on October 12. not been introduced. The property tax mess that stymied efforts in regular session and A carryover from the first half of the 144 th General Assembly is provoked Special Session B in the summer came back to haunt a battle over the authorization of an offshore wind farm, which us when a judge held the ballot language for the constitutional has engendered a number of public hearings. amendment that would have replaced Save Our Homes (limits increase in homestead value for tax roll purposes to three per- Legislation to increase organ donations [HB 302] would create cent or a figure equal to the Consumer Price Index, whichever is an opt-out requirement for drivers license holders rather than the less) unconstitutional. It looked as if clearer ballot language current opt-in procedure. were not produced in special session by an October 30 deadline FLORIDA (earlier reports had this deadline set for October 29), the meas- Edith Elizabeth Pollitz ure would not make it on the ballot for the planned January 29 It’s OK to drive down for vacation again, as the no-fault law that election. This rather odd election date was the result of Flor- lapsed and was revived in special session has now kicked in ida’s attempt to get ahead of the pack in the presidential primary effective January 1, 2008 (see below for details). rush by moving our primary from the second Tuesday in March to the last Tuesday in January, an issue that’s made national On January 29, Florida held its early presidential primary de- news—we are good at that concerning elections. spite the fact that our Democratic Party primary delegates do not count (at least as of right now). But that was not the only thing Special Session D began 10 minutes after sine die of Special on the ballot that day. The “D” Session property tax amend- Session C on October 12. This session wrestled with solutions ments that required 60 percent approval for passage made the to the property tax issue, going different directions (plural in- cut. The controversial amendments (let’s face it, all of the prop- tended) from the original plan instead of revising the ballot lan- erty tax plans were controversial) can be found at: http:// guage to keep the results of Special Session B on track. Every- www.flsenate.gov/data/session/2007D/Senate/bills/billtext/pdf/ one agreed to undo the efforts of Special Session B concerning a s0002Der.pdf . The implementing legislation, S.B. 4-D is at: super exemption in favor of continuing Save Our Homes , adding http://election.dos.state.fl.us/laws/07laws/ch_2007-339.pdf . portability, and increasing the homestead exemption, but the And it’s not over yet. The Taxation and Budget Reform Com- hoped-for consensus bogged down as the special session headed mission, a constitutional body that has the power to propose toward the deadline. The House broadened the tax relief plan to constitutional amendments to be voted on by the public, has include a five percent cap on assessments for businesses and been wrestling with the tax issue, discussing the possibility of second home owners (would have benefited those of you who decreasing property taxes and raising sales taxes and revising have always dreamed of a vacation home in Florida). Mean- exemptions. Their proposals will go before the voters in the while, the Florida Supreme Court decided to bypass the appeals November 2008 election. court and hear oral arguments on the validity of the ballot lan- guage from Special Session B based on its significance as an Meanwhile, the budget problems that required adjustments last issue of great public importance. Both houses gave up and went fall have continued to plague the state. The first order of busi- home for the week after it became clear on October 22 that they ness for the 2008 Regular Session was another budget bill—to were far apart in their approaches. It was uncertain if or when make cuts in the 2007-2008 budget for the remaining portion of they would go back into session on the final day of the special the fiscal year. session (October 29) as the week drew on. A weekend session Page 8 THE L EGISLATIVE L AWYER Volume XXII, Issue 1 was out of the question because everything in Tallahassee was the roadless area conservation program; American Indian educa- booked up for Florida State University’s homecoming festivities tion in Idaho and reservation fuel tax collection and expenditure. (they could not meet the previous weekend because of the FSU- The National Forest System-Woody Biomass Interim Commit- Miami football game). Governor Charlie Crist then explored the tee received information on timber sale receipts for state and option of extending the session yet another day (until ballot lan- federal lands in Idaho and on the changes in the Idaho forest guage approval deadline day, October 30). He did not, and they inventory. The stewardship contract coordinator for the U.S. finally came to an “agreement,” when the Senate rolled out a Forest Service’s Northern Region, informed the Committee that new, less activist plan, late on Sunday, voted on it on Monday under stewardship contracting, the harvest of timber on national (October 29), and headed out. This left the House to grudgingly forest lands generate receipts that can be used to do service approve what the Senate did if they wanted anything at all. The work, such as forest restoration. plan that finally passed included a 10 percent cap on assess- ments for nonhomestead property (a lower amount of relief than Renovation continues on the Idaho State Capitol. Remodeling of the House wanted), the popular portability provision, and an the Capitol Annex, formerly the historic Ada County Court- extra $25,000 in homestead exemption that does not apply to house, has been completed to accommodate the Idaho Legisla- school taxes (estimates are that, deleting the school taxes, it will ture and staff for the next two to three legislative sessions. practically work out to about $15,000 more in homestead ex- ILLINOIS emption). The state dropped the appeal of the unconstitutional Rosalind A. Sargent ruling on the ballot language for the original plan from the ear- The 95 th General Assembly of the State of Illinois wrapped its lier special session, thus avoiding a possible nightmare scenario Fall Veto Session on October 12 amid a seemingly never-ending where voters would be asked to vote on two competing new tax general session, which, while scheduled for adjournment on plans that both could have, technically, been approved. May 31 st of this year, has yet to see an official end. Though IDAHO peppered with temporary reprieves here and there, this legisla- Katharine Gerrity tive year has been saturated with general sessions, special ses- Idaho is currently in the final days of the Second Regular Ses- sions, committee of the whole meetings, looming “doomsdays” sion of the Fifty-ninth Idaho Legislature, which began on Janu- and threats of government shut-downs, and even concerted court ary 7 th . During the interim between the 2007 and 2008 Legisla- battles between the governor and certain legislative leaders and tive Sessions, various committees met throughout the state to officers. It has arguably been the most contentious year in the address specific issues of interest. state’s legislative history; certainly, the most heated of recent memory. The Natural Resources Interim Committee conducted several meetings with the primary issue of concern being that of water During Veto Session, original funding levels were restored for availability and management. The Committee specifically re- the offices of the attorney general and the auditor general, cer- viewed the implementation of conjunctive administration in aq- tain legislative agencies, and the state’s courts. This restoration, uifers throughout the State of Idaho, litigation involving con- which occurred through budgetary overrides, accounted for junctive administration of surface and ground water rights, and about $7.9 million of the approximately $470 million in cuts projected costs of the Idaho Department of Water Resources in made to the state budget by the governor back in August. regard to the funding of aquifer management throughout the Though the House took action to restore a much larger portion state. The Legislative Council on River Governance also met in of the $470 million, the Senate concurred only in the $7.9 mil- Boise in August. The group is composed of legislators from lion. Idaho, Montana, Oregon and Washington who meet to discuss The six-day veto session also included the override of the gover- issues relating to water in the Northwest, particularly common nor’s total veto of Senate Bill 1463, which amends the Silent interests and challenges along the Columbia River Basin. Reflection and Student Prayer Act to require, rather than allow, a Throughout the course of several meetings, the Tax Exemptions teacher to observe a brief period of silence at the opening of Interim Committee adopted a number of principles to recom- every school day with the participation of all pupils assembled. mend to the Legislature to utilize in evaluating tax deductions, However, with the arrival of the regular spring session, which credits and exemptions in Idaho. These principles include con- began in January of this year, came House Bill 4186. This cepts of equity and fairness, certainty, convenience of payment, House Bill, which is currently under consideration in the House, economy in administration, simplicity, benefit objectives, and changes the title of the Act to the Student Silent Reflection Act transparency and visibility. and removes all references to student prayer. The Interim Committee on Energy, Environment and Technol- Issues that continue to divide legislators and the governor, and ogy met to discuss, among other topics, a green building and that sustain the threat of continued upheaval, include mass tran- energy saving approach for new state buildings and school sit subsidies and capital construction projects, which are also buildings. The Committee also heard from various electric utili- closely associated with the incendiary issue of gaming expan- ties in Idaho about energy saving programs offered to customers sion within the state. and from the governor’s office regarding an initiative relating to INDIANA climate change. George Angelone The Idaho Council on Indian Affairs met and heard testimony on Indiana is wrapping up summer study committees. The next a number of topics including the state’s anti-methamphetamine regular session will begin on November 20 and then recess until media campaign, scheduled to commence during January, 2008; January. Volume XXII, Issue 1 THE L EGISLATIVE L AWYER Page 9

As a result of an adjustment of assessed values to reflect shifts House Of Representatives, asking the Franklin Circuit Court to due to six years of market value changes, home owners saw their declare the state’s education funding system unconstitutional, property tax bills rise (due to shifting AV) by 24%. In areas in and to order the governor and the General Assembly to devise a which market prices rose significantly, property tax bills rose at budget to give schools “a sufficient appropriation of funds” and a much higher rate. Although there was considerable public dis- priority over all other state services. The Council for Better cussion, no special session was called this summer to deal with Education, made up of various school boards, also sued, making property taxes. Most proposals discussed in the media focused similar claims, and the lawsuits were joined by the trial court. on having state government pick up more of the costs that had (03-CI-00055, 03-CI-01152). The lawsuit was styled Young v. traditionally been paid by local government, including, possibly, Williams . On February 13, 2007, following extensive briefing expenses incurred to operate schools and child welfare services. of the legal issues and discovery, the Franklin Circuit Court dis- Some advocate exempting either just home owners or all prop- missed the lawsuit on the merits. The court held that the level of erty owners from property taxes. When legislators return for the education funding provided by the General Assembly was not regular session, property tax reform is likely to be an extremely inadequate, and did not violate Section 183 of the Kentucky important issue. Constitution. The court held that the General Assembly's The 2008 session ended March 15. A major property tax reform method of determining adequacy, through educational outputs, bill and a resolution proposing to amend the constitution to cap was not arbitrary. The Plaintiffs did not appeal this ruling. property taxes passed. A bill to enact an immigration control law In another case, American Express v. Kentucky State Treasurer , failed. A number of other issues were addressed including mort- the Treasurer sought to implead the Director of the Legislative gage fraud and public employer responsibilities to provide a Research Commission in a case involving the interpretation of a private place for new mothers to nurse their babies. budget provision, to force the LRC to defend the budget provi- KANSAS sion. The LRC argued that legislative immunity and specific Mary Torrence statutory exemptions prohibited the Director from being joined in such a lawsuit. The Franklin Circuit Court denied the motion, The past two years have been times of change for the Kansas upholding the LRC's argument that legislators and legislative Office of Revisor of Statutes. During the 2006 session the office staff were not subject to being joined as defendants in declara- was moved to the underground garden level of the Capitol as tory judgment actions. part of an extensive capitol restoration project. While it has taken awhile to adapt, the office is lovely and, for the first time In another recent lawsuit, Devine v. Board of Education of Jef- in my 34-year tenure, the entire Revisor’s staff is in one loca- ferson County , several teachers sued the Clerks of the Senate tion. This has resulted in increased efficiency, teamwork and and House in Jefferson Circuit Court, alleging a controversy camaraderie. over the provisions of the 2006 Budget Bill, HB 380, relating to the addition of instructional days to the school calendar. The In September 2006 the previous revisor, Norman Furse, stepped Jefferson Circuit Court, on motion by the Kentucky Legislative down to become Revisor Emeritus and I was appointed Revisor Research Commission, transferred venue of the case to the of Statutes. During the ensuing session the legislature expanded Franklin Circuit Court, the seat of government. The Legislative our staff from 15.5 attorneys to 21.5. The Legislature also cre- Research Commission then successfully argued that Plaintiffs ated two legislative fellow positions for law students and new could not force the clerks to defend the constitutionality of legis- law school graduates for the purpose of attracting and training lative actions, as the clerks have no "statutory, constitutional, or future staff attorneys. It is a challenge to train so many new peo- other legal standing to perform any act related to the interpreta- ple but our veteran attorneys have risen to the challenge and our tion and implementation of the executive branch budget", and new attorneys are exceptional. People who say today’s young the Clerks were dismissed from the case on June 27, 2007. people lack a work ethic obviously have not met this group! LOUISIANA Additional staff caused us to outgrow our new office space. An Clifford Williams expansion project to provide additional offices was completed in February and we now have an office for each attorney. The fall elections brought major changes to Baton Rouge. The new Republican governor is the son of immigrants from India. Through all this the Legislature has been working with Propy- Of the 105 members of the House, there are 60 new members. lon, an Irish company, to develop an integrated legislative com- One is a former senator who won election to his former House puter system that will include bill drafting, statute publication, seat and one is the wife of the former seat holder. Of the 39 chamber automation and decision support. The first phase of the senators, there are 18 new members. However, 13 of them were system will replace our mainframe bill drafting system that has House members last term. In relation to numbers, term limits been in place for more than 35 years. The new bill drafting sys- had a drastic affect upon the legislature and with the influx of so tem is scheduled to be in operation by the 2011 session, an ex- many new members there comes new ideas, at least in the citing prospect for our staff. House. More calls for transparency in government, better and We invite legislative staff from other states to visit our office stronger ethics laws, more accountability of state spending, and when in Topeka. We will be happy to show you around! more money for highways, roads and bridges. In an effort to KENTUCKY thwart the partisanship that has plagued the legislature the last Laura Hendrix few years, the governor supported bipartisan leadership in the legislature. The speaker of the House is a Republican, the chair- In 2003, a group of individuals sued the President of the Senate man of the House Appropriations Committee is a Democrat, and of the Kentucky General Assembly and the Speaker of the the chairman of the House Ways and Means Committee is a Page 10 THE L EGISLATIVE L AWYER Volume XXII, Issue 1

Republican. The president of the Senate is a Democrat, the protection. The new bill enacts a mechanism by which prescrib- chairman of the Senate Finance Committee is a Republican, and ers’ licensing boards provide information and a process to pro- the chairman of the Senate Revenue and Fiscal Affairs Commit- tect confidentiality beginning October 1, 2007; enacts proce- tee is a Democrat. However, legislators from the northern part dures by which the Maine Health Data Organization accepts this of the state still believe too much power is concentrated in the information and makes available lists of the names of prescrib- southern part of the state. The speaker and the speaker pro tem ers who have filed for confidentiality protection; and provides are from the New Orleans area. The senate president is from a for rulemaking in the governor’s Office of Health Policy and parish near Orleans parish and the president pro tem is from Finance to implement the law. The new law adds statements of Baton Rouge. findings and purposes - that the Legislature finds that enactment Since inauguration on January 14, we have had two special ses- of the law will assist the State to achieve the following compel- sions, one focused on ethics and another focused on spending ling state interests: to improve the public health, to limit annual the $1 billion surplus and providing more funds for highways, increases in the cost of health care and to protect the privacy of roads, and bridges. In order to spend the surplus, both the patients and prescribers. The findings and purposes include House and the Senate had to approve a resolution raising the more detailed statements of legislative purpose. In addition, the spending limit, something the former Democratic governor had summary on the committee amendment to LD 4 provides an trouble getting done in her last regular session, as she was op- explanation of the amendment and legislative intent. posed by the Republicans and a few Democrats. Many of the Litigation – A lawsuit was filed in US District Court in Maine returning members joked with the speaker about how his phi- to declare the law unconstitutional on the basis that it interferes losophy has changed. In that last year he led the fight to not with First Amendment freedom of speech and to prevent its raise the expenditure limit, however, this year he leads the effort coming into effect by three health information specialists, IMS to raise the limit. The governor has had two successful special Health Incorporated, Verispan LLC and Source Healthcare Ana- sessions and all are now wondering if the honeymoon may be lytics. The federal district court issued a preliminary injunction over. The regular session begins on March 31 st . The press, leg- that prevents Maine from enforcing the confidentiality provision islators, and staff are using phrases like, "company man", used until a final determination on the merits can be made. However, to describe the governor's floor leaders during the ethics session the State can continue to register prescribers who are seeking and "drank the kool-aid", referring to how easy the governor's confidentiality (thereby building a database) and can collect fees packages won approval during both sessions. Stay tuned. We'll from manufacturers to pay for that registration program. The see if the kool-aid becomes sweeter or bitter. State of Maine has appealed the federal district court decision on MAINE the preliminary injunction to the First Circuit Court of Appeals Jane Orbeton so that the appeals court can review some of the legal issues preliminarily decided, but the state has asked for the appeals Overview - The confidentiality of patient prescription drug in- court to delay the case until the court decides the case involving formation has been protected in Maine from disclosure by health a similar New Hampshire law. The First Circuit decision in the plans, pharmacy benefits managers and electronic transmission New Hampshire case will give everyone insight into the appeals intermediaries (covered entities) since August 23, 2006 by Title rd court's thinking and may resolve some of the legal issues in the 22 MRSA §1711-E. This law was expanded by the 123 Maine Maine case. Legislature to protect prescription drug information that identi- fies the prescriber if the prescriber has filed for confidentiality MARYLAND protection. The new law also expands the list of covered entities Sherry Little to include health plan administrators and persons or entities em- Maryland Senators and Delegates, both elected to four-year ployed by or contracted to provide services to one of the covered terms, exercise their lawmaking powers for a regular session entities. beginning the second Wednesday in January with adjournment Process - In the 123 rd Legislature, the Health and Human Ser- 90 calendar days later. Since the Revolutionary War, only 57 vices Committee considered three bills that addressed the confi- special sessions have been held outside the regular timeframe. dentiality of prescription drug information, LD 4, 386 and 838. And, up until three years ago, it had been over a decade since a The committee handled all three bills together, eventually decid- special session was convened. There were four special sessions ing to recommend the passage of one bill, LD 4, as amended by in the 1990s and four earlier in the 1980s. Then, in 2004 and the committee and to recommend against passage of the other again in 2006, the General Assembly met in special sessions to two bills. The sponsors of all three bills worked together with address the costs of medical malpractice insurance and electric the committee, nonpartisan committee staff and the interested rate relief, respectively. parties as the committee considered proposals and worked However, the governor called another special session, beginning through legal, implementation and drafting issues. at the end of October 2007, and ending some three weeks later, New law - Public Law 2007, chapter 460 was signed by Gover- to address Maryland’s projected $1.7 billion structural deficit. nor John Baldacci on June 29, 2007. The law, which took effect After some decidedly very tough deliberations, the General As- on September 20, 2007, amends Title 22, section 1711-E. It sembly passed six bills and the governor signed them on the day retains most of the patient prescription drug confidentiality law, the special session adjourned. The enactments included provi- unchanged. Beginning January 1, 2008, it prohibits covered sions to increase the State sales tax from five to six percent in entities from licensing, using, selling, transferring, or exchang- January 2008, extend the sales tax to computer services effective ing for value for marketing purposes prescription drug informa- July 1, 2008 with a sunset date of June 30, 2013, and increase tion that identifies a prescriber who has filed for confidentiality the corporate income tax rate from seven to eight percent in Volume XXII, Issue 1 THE L EGISLATIVE L AWYER Page 11

January 2008. Other revenue measures established new individ- charge of up to three and one-half cents calculated to pay the ual income tax brackets and rates in January 2008 and increased debt service on trunk highway bonds until 2039. The bill also the State tobacco tax from $1 to $2 per pack, also in January removes the caps on the vehicle registration tax and allows 2008. Another measure established the operational and regula- counties to raise sales tax by either one-quarter cent in the Min- tory framework for a proposed video lottery terminal (slots) pro- neapolis-St. Paul metropolitan area or one-half cent outside the gram, contingent on voter ratification at the general election in metropolitan area for local transportation purposes. November 2008, of a proposed amendment to the Maryland In February 2008, several changes were made to the Revisor of Constitution to authorize as many as 15,000 slot machines at Statutes website. The website is now using SSL (Secure Sock- specified locations in the State. ets Layer). This is an incremental step towards eventually pro- Following the end of the special session, five legislators, includ- viding official, authentic documents on the web. The HTML ing both the Senate and House Minority Leaders, filed suit in a coding of statutes, laws and rules pages changed. The new cod- county circuit court to overturn the results of the special session ing makes access easier for individuals with visual or mobility on the basis that procedures mandated by the Maryland Consti- impairments. One of the most prominent changes is a persistent tution were not followed during the session, thereby rendering left-navigation form appearing at the upper left side permitting the laws passed during the period unconstitutional. The suit al- the immediate display of different document types. Also, se- leged, among other things, that one chamber (the Senate) had lected pages have expanded content resulting from improved adjourned for more than three days without the consent of the database and information retrieval capabilities. To see the other chamber (the House), as required by the Constitution. The changes visit https://www.revisor.leg.state.mn.us/pubs/ Carroll County Circuit Court judge rejected the suit, in part, on MISSISSIPPI the grounds that the procedural irregularities did not invalidate Ted Booth the actions of the legislature. The suit was then appealed directly to the Court of Appeals, Maryland’s highest court. In a brief 2007 was an election year for state and district officials in Mis- order issued in early March, the Court of Appeals affirmed the sissippi. All 122 members of the House of Representatives and ruling of the circuit court. An opinion is to be issued at a later all 52 Senators are up for election. In addition, the statewide date. offices of Governor, Lt. Governor, Attorney General, Secretary of State, State Treasurer, State Auditor, Commissioner of Insur- As the regular session of the General Assembly comes to a close ance, and Commissioner of Agriculture and Commerce were at midnight on Monday, April 7, lawmakers are in earnest dis- also up for election. The race for Lt. governor was particularly cussions aimed at repealing the special session’s tax on com- important to the legislative institution as by Senate rule, the Lt. puter services. Since approximately $200 million will be needed governor appoints committee chairs and members and refers to replace the expected revenue from that tax, actions under con- legislation to the standing committees of the Senate. The incum- sideration are the imposition of an income tax surcharge on bent Lt. governor, Amy Tuck, was term limited so there was no Marylanders with taxable income of $1 million or more, along incumbent in the race. The general election was held on Novem- with further cuts to the $31.2 billion State budget including ber 6, 2007. transportation funding cuts. Since January 8, 2008, the Mississippi Legislature has been in MINNESOTA regular session. As elections for all House and Senate seats Karen Lenertz occurred in 2007, both bodies have new members, and some The Minnesota Legislature convened for a short special session new faces in leadership this year. In the House, Speaker Billy on September 11, 2007, in order to pass an appropriation bill McCoy retained his speakership, and Representative J. P. Com- providing money for disaster relief. The bill provided over $147 pretta remains the House Speaker Pro-Tem. In the Senate, Sena- million in relief to flooded areas of southeast Minnesota, desig- tor Billy Hewes was elected President Pro-Tem. Presiding over nated under a Presidential Declaration of Major Disaster. A the Senate is newly elected Lt. Governor Phil Bryant. Mr. Bry- number of state agencies will disburse the funds and the bill also ant is the former State Auditor. In both house Democrats con- tapped a variety of state funds with about half of the money stitute a majority although Republicans hold most leadership coming from the state's general fund, and a large amount of positions in the Senate. bond proceeds used to finance capital projects. The bill also in- Major issues confronting the Legislature in the 2008 session cluded several tax provisions, including abatements, in order to include: provide relief. A second article of the bill addressed the I-35W bridge collapse and appropriated money received from the fed- • Addressing funding needs for the Medicaid program, eral government to the department of transportation for the pur- • Meeting the growing needs of K-12 funding, and poses specified in those federal grants. Finally, a third article • appropriated money and provided tax relief for other disasters Ethics Reform. that have occurred in the state, including earlier floods in Funding issues will be particularly difficult in our current stag- Crookston and Browns Valley, a fire in the city of Grand Marais nant economy. Adjournment sine die is scheduled for April 19, and Cook County, and drought and flood relief for farmers. 2008. The Minnesota legislature began its 2008 regular session on NEW MEXICO February 12. Early in the session, the legislature overrode the Pam Ray governor's veto and enacted a $6.6 billion, 10-year transporta- The 2008 legislative session in New Mexico was a short session tion funding bill. The bill raises motor fuel taxes for the first (30 days), predominantly for the budget, appropriations and time in 20 years by five cents per gallon plus an additional sur- Page 12 THE L EGISLATIVE L AWYER Volume XXII, Issue 1 revenue matters. The governor could send messages with bills • Failing to report, over an eight year period, $180,000 in that were not specifically appropriations or revenue bills, and all campaign contributions. bills with governor's messages are germane. The most notable Wright has been indicted on felony charges for some of these legislative priority of the governor, Bill Richardson, was to pro- same actions, but has not yet been tried. vide universal health care for the people of the state, but no comprehensive health care bills were approved, and the execu- The vote in the House to expel was 109 to five. Wright is of the tive branch and the state Senate are now in negotiations to see if same party as is a substantial majority of the House. Wright is they can identify components of a universal health care system also black, and in House Ethics Committee hearings had raised that the senate will approve and the governor will sign. If a solu- the issue that he was being targeted out of racial discrimination. tion is reached we will see a special session in the late summer However, 13 of the 18 black representatives voted for expul- or fall. sion. All five who voted against expulsion were black. Wright, in the last vote he was allowed to cast, voted against expelling In general, money was less available than in the past few years. himself. The legislature passed only 107 bills, the lowest number adopted in a short session since 1976. Other issues discussed but not The previous person to be expelled was Josiah Turner, who was resolved involved an overhaul of the state's public school fund- expelled in 1880 for calling other legislators names. He called ing formula; a proposal to grant unmarried couples, regardless of the Speaker of the House a "gander head." gender, the same rights as married couples; and an effort to es- In other news, the US Supreme Court has agreed to hear yet tablish an authority to generate local tax money to subsidize the another North Carolina redistricting case. The plaintiffs in the rapid rail system being constructed from south of Albuquerque case are county commissioners of Pender County, near Wil- to Santa Fe. The fiscal year 2009 budget adopted is approxi- mington. They contend that in drawing the state House redis- mately $6 billion, an increase of six percent over the current tricting plan in 2003, the General Assembly violated Pender fiscal year. The public schools, higher educational institutions County's right under the Whole County Provision of the state and Medicaid received increases totaling $250 million, out of a constitution to be unsplit in a House district. The State defended total budget increase of $342 million. by saying it had to split the county to draw a black-controlled Evan Blackstone, a drafting attorney with the legislative council district to comply with Section 2 of the Voting Rights Act. The service is leaving to become the General Counsel of the State State Supreme Court found for the plaintiffs, saying the district Auditor's Office. He has been with the legislative council ser- drawn did not have a black majority even of total population, vice for almost four years. and that Section 2 requires drawing a minority district only if the district can be drawn so that the minority group is more than 50 Interim legislative committees will begin again shortly. The percent of its voting-age US citizens. The US Supreme lawyers from the legislative council service together staff a total Court granted certiorari to hear the case, it was believed, to re- of about twenty committees, subcommittees and task forces dur- solve a split among federal circuits over what Section 2 requires. ing each interim These are oversight and subject matter com- mittees that are either required by statute or are created by the As it happens, the black incumbent in the district the legislature legislative council each year. drew splitting Pender County was Thomas Wright. Otherwise it is now quiet at the round house (our capitol) in FALL 2007: Santa Fe. We had more snow than usual, so the mountain snow Please remember that North Carolina was until 10 years ago the pack is sufficient for water needs. It was a cold winter and we only State that did not give the governor a veto. So we are con- are looking forward to spring. tinually encountering new veto-experiences that are old hat to NORTH CAROLINA everyone else. In September, North Carolina almost had its first William R. Gilkeson veto override. SPRING 2008: At issue was legislation passed by the 2007 General Assembly to provide a $40 million benefits package to keep a Good- On March 20, 2008, the North Carolina House of Representa- year Tire & Rubber plant from leaving Fayetteville, NC. tives expelled Rep. Thomas E. Wright. He was the first member (Fayetteville is best known as the home of the Ft. Bragg Army expelled by either house of the NC General Assembly since Base and the 82nd Airborne.) 1880. It is not new in NC for the General Assembly to enact incentive Wright, an 8-termer from Wilmington, was accused of the fol- packages to induce a new industry to come to the State. Dell lowing: Computers and Google have received such inducements to lo- • Soliciting a state official to write a fraudulent letter saying cate facilities in NC in recent years. What was new in the 2007 his agency intended to commit $150,000 to a project of legislation was that the State would be offering benefits to a Wright's nonprofit health foundation. The project company already located in NC to induce it to stay. would convert a building into foundation offices and a his- The final version of the bill passed overwhelmingly -- 98 to 11 tory museum. The accusation was that both Wright and the in the House and 41 to five in the Senate. state official knew the agency did not intend to commit the $150,000, and that Wright intended to use the money to Governor Mike Easley, in his veto message, focused on the fraudulently obtain funding elsewhere. precedent the legislation would set. "It calls for the state to give up to $40 million in cash to an existing company in one county • Converting to his personal use $8,900 he had raised from with little or no regard for how much the company actually pays three corporations for his nonprofit health foundation. in state and local taxes, what wages it pays now or in the future, Volume XXII, Issue 1 THE L EGISLATIVE L AWYER Page 13 or whether it lays off nearly 25 percent of its workforce. Never cial Session Committee on Energy Policies has advanced this in the history of the state has anyone given a company up to $40 legislation to the full Senate. million and allowed them to lay off hundreds of workers." An overhaul of the state’s open records law has been advanced Easley proposed an alternative, providing higher standards, that in both the Pennsylvania House and Senate. The Senate version, he could accept. Legislative supporters of the bill pointed out Senate Bill 1, changes current law so that all records from ex- that the legislation was permissive. It allowed, rather than re- ecutive agencies and local agencies are presumed to be open quired, the State to provide the benefits. A commission con- unless they fall under a specific exception established in law. trolled by appointees of governor could decide whether to issue The bill includes exceptions so that certain records remain pri- the benefits, and could impose stricter standards if it wanted to. vate, such as Social Security numbers, medical records, records So, they asked, what was the point of the veto? The governor that would threaten domestic security, and police investigative said he did not like the precedent that was being set. records. A key provision would require all state contracts, in- The legislators convened in an override session September 10 cluding contracts with the Legislature, to be posted online in a and hung out for two days while the governor and legislative searchable database. This language would offer the public un- leaders negotiated. It had the atmosphere of a family dis- precedented access to state spending decisions. The Senate open pute. The governor and the leaders of both houses are all De- records legislation would make numerous additional improve- mocrats. Especially notable was the friction between Gov. Eas- ments to the law, including: creating an open records clearing- ley and Senate Majority Leader Tony Rand of Fayetteville, one house to provide information, training and advisory opinions on of the governor's longest and closest supporters. open records; cutting the response period for state agencies from 10 days to five days; improving the appeals process; increasing At last a deal was reached: Companies could qualify for benefits penalties for noncompliance from $300 to $1,000 for a first of- if they operate in the State's poorest counties and invest $200 fense, and up to $2,000 for subsequent offenses; requiring all million within a six-year period, which can be retroactive. They agencies to appoint an open records officer to specifically deal must pay average wages at least 140% of the county average and with requests, including coordination and tracking; requiring the provide health benefits. The benefits would include the return of open records clearinghouse to create a uniform form that may be 95 percent of sales tax paid on new equipment, building materi- used to request records, making it easier for requestors; requir- als, and energy. They can also get back a portion of income ing agencies to accept email requests; establishing standard fees taxes plus worker training and State permitting fees. If a com- for photocopying records; adding the judicial branch's financial pany cuts its workforce, its grant is reduced. If its work force records to the law; and clarifying that PHEAA is covered by the falls by 20 percent, its payments are suspended until it increases law. employment. The agreement made it possible for not only Good- year, but also a competitor, Bridgestone Firestone, to get bene- A House-Senate conference committee will be appointed to fits. (Bridgestone Firestone has a plant in Wilson, NC.) Over 10 compromise on a version of a statewide public smoking ban. years, the two companies could receive $60 million. The Senate had previously passed smoking ban legislation that provided an exemption to allow smoking in casinos, some res- Corporate benefits packages could become an issue in next taurants and clubs. The House version restricted smoking in year's election for governor. A leading candidate for the Repub- restaurants and public places more than the Senate version. The lican nomination, former Supreme Court Justice Robert Orr, has Senate declined to adopt the House version, and the House in- recently headed a foundation against the practice. (Easley is sisted on its version, which triggers a conference committee to term-limited and cannot run again.) resolve the issue and produce a compromise bill. PENNSYLVANIA TEXAS By Stacey Connors Mark Moore The Pennsylvania General Assembly convened a special session The legislature is well into the 591-day interim period between on energy this fall. Governor Rendell convened the special ses- regular legislative sessions (the Texas Legislature meets 140 sion on energy to consider legislation regarding funding for and days every two years, plus any 30-day special sessions called by the making of investments in clean and renewable energy, en- the governor). No special sessions are currently anticipated for ergy conservation, and economic development efforts relating this interim. thereto, and the establishment of requirements regarding the renewable energy content of liquid fuels. The Alternative En- The Texas Legislative Council is midway through its code revi- ergy Investment Act , Special Session Senate Bill 1, was ad- sion projects for the interim. The projects being undertaken in- vanced to the full Senate from the Senate Special Session Com- clude: (1) the Special District Local Laws Code, in which an- mittee on Energy, although much work lies ahead to reach a other group of local laws creating various special districts will consensus on legislation creating a fund to promote energy con- be codified, (2) the Probate Code, which will codify the dece- servation and alternative energy. Special Session Senate Bill 1 dents' estates statutes from the old Probate Code and (3) the would provide $20 million annually for consumer/home energy Transportation Code, to which some railroad provisions will be efficiency programs, $20 million annually in tax credits for in- added. vestments in alternative energy production projects; and $20 Legislative committees are also well into the legislative interim million annually to finance a $250 million bond for alternative and have received their charges from the speaker of the house of and renewable energy development, clean energy and energy representatives and the lieutenant governor. A number of bills conservation, and pollution control technology. The Senate Spe- will arise from the responses to these charges for the 81st Legis- lature, which begins January 2009. The charges include multiple Page 14 THE L EGISLATIVE L AWYER Volume XXII, Issue 1 issues related to transportation funding, Medicaid provider reim- At the November general election, Washington approved several bursement, water rights (especially groundwater), immigration, initiatives, referenda, and joint resolutions. The following is a the state's need for physicians and other health care profession- brief description of the highlights. Initiative Measure 960 ex- als and property taxes (especially property tax rates in school tends the two-thirds supermajority vote requirement to any tax districts and property appraisal methods for local governments). increase, regardless of which fund or account the money is de- VIRGINIA posited. (Prior law required two-thirds approval for any bill in- Mary Spain creasing taxes for deposit into the general fund and several other accounts.) The measure also requires legislative approval for all The Virginia General Assembly convened Wednesday, January new fees and fee increases and requires a public press release 9, 2008, for its 60-day or "long" regular session. Democrats via e-mail each time a fee or tax bill is introduced, scheduled, or took control of the 40-member Senate in the November 2007 acted on in the legislative process. Referendum 67 authorizes a general election by a narrow 21 to 19 margin, while Republicans court to award treble damages to an insurance claimant if an retained control of the 100-member House of Delegates al- insurer unreasonably denies a claim for coverage or commits though with a new and slimmer majority of 53 Republicans, 44 certain unfair business practices. Engrossed Substitute Senate Democrats (later 45 Democrats after a special election), and two Joint Resolution 8206, a state constitutional amendment, creates independents who generally support Republican positions. a budget stabilization account. One percent of general state Disagreement on the new biennial 2008-2010 budget took five revenues must be deposited in the account. Money in the ac- extra days to resolve, and the General Assembly adjourned the count may be appropriated by a simple majority vote of each regular session sine die on Thursday, March 13, 2008, with a house only if the governor declares an emergency or state fore- new budget. However, major issues remained to be resolved -- casted employment growth for any fiscal year is less than one how to finance desired capital improvements for colleges and percent. Other withdrawals require a three-fifths supermajority universities and how to pay for needed road and transportation vote. Engrossed House Joint Resolution 4204, another amend- improvements. ment to the state constitution, authorizes simple majority voter On March 13, 2008, the General Assembly convened the 2008 approval for local school levies. Previously, all local property Special Session I to consider legislation relating to bonds and tax levies for schools required a three-fifths supermajority vote. capital improvements and procedural matters and then recessed On November 29, the Legislature convened for a one day spe- until April 23, 2008. On that date, the General Assembly will cial session. The topic du jour was property taxes. Earlier that meet first in a reconvened session to consider the governor's month, the Washington State Supreme Court had invalidated a actions on legislation from the regular session, and second in the five-year old initiative capping property tax growth at one per- special session to take up the capital improvements issue. cent per year. The Court's reasoning was based on the state con- No date has been set to take up transportation funding issues. stitutional requirement to fully set forth the language amended The 2007 General Assembly had passed a major transportation in bills and initiatives. The Legislature, during its one day ses- package. One part imposed substantial "abusive driver" fees on sion, reinstated the one percent cap. As a bonus, the Legislature Virginia drivers to raise transportation funds. This proposal passed a second bill authorizing individuals earning less than the evoked multiple objections (the fees were very high and out-of state median income to defer a limited amount of their property state drivers were not subject to the fees), and it was repealed by taxes. the 2008 General Assembly. A more major component of the On March 13, the Legislature concluded a 60-day regular ses- 2007 package gave regional transportation authorities in north- sion. Of the 335 bills that the Legislature passed, some of the ern Virginia and the southeastern Hampton Roads power to im- more notable include: pose various regional taxes and fees to fund transportation pro- • A bill increasing the availability of all day kindergarten jects in these most heavily congested areas. On February 29, from 10 percent to 20 percent of the poorest public schools 2008, a unanimous Virginia Supreme Court struck down the part by the end of the 2008-09 school year. of the 2007 transportation package that gave the two regional authorities power to impose taxes. The Court held that taxes • A bill laying the foundation to impose permanent tolls on could be imposed only by elected officials under the Virginia bridges and highways. Constitution and could not be imposed by the appointed boards • A bill allowing voters in cities and counties to decide of the regional authorities. whether to use public money for public campaigns. During the regular session, the General Assembly considered • A bill regulating the amount of lead, cadmium and phtha- 3,322 measures, passed 1,654 bills and resolutions, carried over lates in children's products and toys. 316 measures to 2009, and killed 1,352 measures. It passed 889 • bills including the biennial budget. A bill giving tribal police the same authority as local and state law enforcement officers. WASHINGTON • Jeff Mitchell A bill granting about 170 rights and responsibilities of mar- riage to those in domestic partnerships. Since the last update, a whirlwind of legislatively related activity has transpired. This includes the passage of several significant • A bill creating a pilot study that would allow up to 30 gro- ballot measures at the November election; the Legislature con- cery stores to offer limited beer and wine-tasting events. vening for a special session in late November; and the Legisla- A notable bill that never gained traction would have contributed ture recently completing its regular session. $75 million to keep the Seattle SuperSonics basketball team in Volume XXII, Issue 1 THE L EGISLATIVE L AWYER Page 15

Washington. The current owners are looking to move the team WISCONSIN to Oklahoma. Cathlene Hanaman WEST VIRGINIA Following a winter that saw record snowfall in Madison (over Mark McOwen 100 inches), the Democrat-controlled Senate and the Republi- The governor convened the 78 th Legislature into a brief 2 nd ex- can-controlled Assembly closed regular session but continue traordinary session of 2007 in August, during which 14 bills ideological battles into a special session that aims to address a were passed. Among the bills were new provisions expanding budget shortfall. prohibitions against unlawful purchases of scrap metal that met The end of regular session left several issues unresolved, includ- the “due process” objections of the governor expressed when he ing: vetoed similar legislation passed during the 2007 Regular Ses- • A reform of the “John Doe” law, which requires a judge to sion (HB202); authorizing state and local agencies to maintain investigate a complaint if a citizen alleges that a crime has the confidentiality of resident addresses of victims of domestic been committed in the judge’s jurisdiction. Persons seeking abuse, sexual assault or stalking (HB203); clarifying the legality to reform this law alleged that incarcerated persons were of the law enforcement practice of sending persons wearing con- using this law to harass public employees by claiming that cealed electronic surveillance devices into suspect’s homes the employees had committed crimes. The houses pro- (HB204); and providing a new personal income tax break for posed, considered, and passed different means of reforming certain tolls paid on the West Virginia Turnpike (SB2001). the law. The assembly passed a proposal that eliminated The 78 th Legislature’s 2 nd Regular Session began in January, access to the John Doe process if the complainant were in 2008 and concluded March 16. Early counts indicate passage custody, if the alleged crime happened on certain state- of 245 bills this year. General law legislation passed this ses- owned properties, or if the subject of the complaint was a sion includes a bill that will eliminate the state’s net-worth- specified state employee. The Senate passed a proposal that based Business Franchise Tax by 2015, and reduce the corporate generally gave a judge more discretion if a John Doe com- income tax from eight and three-quarters to six and one-half plaint were filed. percent by 2014 (SB680). Another bill eliminates the capital • How to fix a wait for autism care. The Senate Democrats stock-based corporate license tax July 1 of this year (HB4421). wanted to require insurers to cover some therapies, but the Salaries were increased for teachers (SB573), State Police assembly Republicans preferred spending resources to (SB574), state employees (Budget Bill SB150) and legislators eliminate the current waiting list for the care. (HB4076). Driver’s licenses will be denied to high school stu- dents who fail or drop out (HB4023) and the duration of bus • The Great Lakes Water Compact. This issue may merit a rides for younger students will be reduced (HB4406). Bills de- special session. State sovereignty, gubernatorial vetoes, and signed to reduce thefts of catalytic converters (SB638) and beer water withdrawal continue as some of the divisive points. kegs (HB4423) were passed. No state funds may be used to Other issues left open include a statewide smoking ban, mental purchase American or State flags that are not made in the United health background checks for gun purchases, and psychological States (HB4150). The Anatomical Gift Act was revised examinations for new law enforcement officers. (HB4304), public-private partnerships will be permitted for cer- tain road projects (HB4476), senior citizens may defer their real Many issues were resolved, including: property tax bills until death (SB239), all law-abiding citizens • A requirement that hospitals provide emergency contracep- may use deadly force to defend self (SB145), and airplanes will tion to victims of sexual assault. receive reduced property tax treatment (SB265). The Stream- • A proposal to authorize a school district to open the enroll- lined Sales Tax statutes were updated (SB596) and sales tax ment of virtual charter schools to pupils who reside outside holidays for Energy Star products are authorized (SB474). Im- the school district. mediately on adjournment of the regular session, the governor convened a brief extraordinary session during which bills passed • The creation of a government accountability board for the allowing members of the teachers’ defined contribution retire- investigation and enforcement of elections, ethics, and lob- ment plan to transfer into the teachers’ defined benefit plan bying laws. (HB101) and providing a one-time $600 payment to low income Wisconsin continues to contemplate additional constitutional state and teacher retirants (HB103). Gubernatorial action on provisions, some of which never left the Assembly. But, on these and the remaining bills may be monitored at the website. April 1, voters will consider the option of eliminating the The Legislature will meet monthly to study various topics dur- “Frankenstein veto,” which gives the governor’s pen possibly ing the interim period between regular sessions. May 13 brings unrivaled power. Although the “Vanna White” veto was re- primary elections and November 4 brings general elections to all moved from the governor’s powers in 1990—as a result the gov- 100 House of Delegates seats and half (17) of the Senate seats. ernor can no longer simply strike letters but rather may strike The 1 st Regular Session of the 79 th Legislature will convene only complete words—the governor still may strike parts of sen- January 14, 2009 and adjourn by February 11 to afford the tences and cobble together new concepts in appropriation bills. newly elected governor the opportunity to prepare a proposed Under the current interpretation, large appropriation bills, such budget and legislative package. To monitor legislative activity, as the budget bill that Wisconsin produces biennially, provide please visit the West Virginia Legislature’s website at http:// ample text and opportunity for the governor to divert money, www.legis.state.wv.us/ . For toll-free access, dial 1-877- create policy, and eliminate pesky words such as “not.” 56LEGIS. Page 16 THE L EGISLATIVE L AWYER Volume XXII, Issue 1

LSSS CORRESPONDENTS We are fortunate to have a dedicated and reliable group of regional and state correspondents National Conference of State Legislatures who supply us with state news, articles and other input for The Legislative Lawyer . The Legal LEGAL SERVICES STAFF SECTION Services Staff Section thanks all of you for your effort. Executive Committee Members Regional Correspondents Chair: Diane Boyer-Vine, [email protected] Great Lakes John Rowings [email protected] Mid-Atlantic Rich Dillard [email protected] Vice-chair: West Jeffrey Mitchell [email protected] Lisa Sandberg, [email protected] New England Brian Leven [email protected] MidWest Scott Harrison [email protected] Secretary: Margaret Piety, [email protected] State News Editor: Edith Elizabeth Pollitz

Directors: State Correspondents Debbie Haskins, [email protected] Doug Himes, [email protected] Roger Norman, [email protected] Laura H. Hendrix, [email protected] AL AK Pam Finley MA Louis Rizoli OH Rich Merkel Jon Heining, Texas [email protected] AL Karen Smith MD Sherry Little OK Scott Emerson AZ Don Thayer ME Peggy Reinsch OR Ted W. Reutlinger Past Chairpersons: CA Saskia Kim MN Karen Lenertz PA Stacey Mosca Bob Nelson, [email protected] CO Debbie Haskins MO Russ Hembree RI Cay Massouda Michael Chernick, [email protected] CT Bradford Towson MS Ted Booth SD Jacqueline Storm Nancy Cyr, [email protected] DE Rich Dillard MT Greg Petesch TN Emily Urban Rich Merkel, [email protected] FL Edith Elizabeth Pollitz NC William R. Gilkeson TX Deborah Fulton Pam Ray, [email protected] HI Ken Takayama ND Jay Buringrud UT Gay Taylor IA Rich Johnson NE Scott Harrison VA Mary Spain Newsletter Editor: ID Katharine Gerrity NH Paul Lindstrom VT Brian Leven Jery Payne, [email protected] IL Rosalind A. Sargent NJ Howard Rotblat WA Jeffrey Mitchell IN George Angelone NM Pam Ray WI Cathlene Hanaman NCSL liaison to LSSS: KS Mary Torrence NV Brenda Erdoes WV Mark McOwen Kae Warnock, [email protected] KY Ann Zimmer NY J. M. Wice WY Dave Gruver LA Clifford Williams

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