The Thicket at State Legislatures

A Complementarity of Powers

by Karl Kurtz

At a workshop for Algerian parliamentarians last week, our faculty team was emphasizing the separation of powers in the American system of government.  An attorney for the Algerian Council of Nations (Senate) spoke up and said, "In Algeria, we have a complementarity of powers instead of a separation of powers."  In saying this, she was recognizing the strong authority of the executive branch in Algerian government but suggesting that the parliament supplements the work of the executive and makes it more effective.

Her comment was clearly aimed at the Algerian system of government.  But the more I reflected on the "complementarity of powers", the more I liked how the phrase captures much of the reality of the relationship between branches of government in our American separation of powers system. The legislative, executive and judicial branches of government often complement each other, perhaps more than they compete.

Two small examples of ways in which the legislative and executive branches of government collaborate came up in our workshop with the Algerians.  Minnesota Senate counsel Peter Wattson answered a question about the effective date of new laws by saying that Minnesota has a default effective date of August 1 but that executive agencies, bill authors, committees and staff often communicate about the most appropriate effective date and negotiate a change.  Gary Vanlandingham, director of Florida's OPPAGA, pointed out that legislative program reviews of executive agencies are not designed to embarrass the agencies but rather to help them strengthen their programs.

New York Court Gives Governor the Power to Appoint a Lt. Governor

by Karl Kurtz

Yesterday, New York's high court upheld the power of Gov. David Paterson to fill a vacancy in the office of lieutenant governor, created when he himself succeeded from lieutenant governor to governor last year.  Paterson had appointed Richard Ravitch to the position earlier this year, and the Senate Republican leader, Dean Skelos, had filed suit asserting that the governor did not have this power.

From the New York Times summary of the decision:

At issue in the decision and the dissent were two provisions in state law, which could be read as conflicting. One provides that the governor “shall appoint” a person to fill a vacancy in positions for which there is no other provision for the fulfilling the vacancy. The other provides that the temporary president of the State Senate “shall perform all the duties of the lieutenant governor” if the position is vacant.

Judge Lippman wrote that the two provisions “are complementary rather than duplicative” and that the latter provision provides only for “stopgap coverage” of the lieutenant governor’s function and cannot “be understood to state that the vacancy may not be filled.” 

Lower courts had consistently ruled that the governor did not have the power, but in a 4-3 decision the New York Court of Appeals ruled the other way.

Senator Dean G. Skelos of Long Island, the Republican leader in the State Senate, who was the named plaintiff in the suit, said in a statement on Tuesday, “The court has given new power and authority to an unelected governor where no such power had existed under the State Constitution.”

He said Judge Pigott’s premise raised the troubling prospect that an unelected lieutenant governor could become governor and then appoint yet another unelected governor, without needing even confirmation by the State Senate. “The court’s decision to allow the state’s highest offices to be filled with no accountability whatsoever to the public or to their elected representatives in the Legislature, is dangerous to democracy,” Mr. Skelos said.

“One thing is clear — we must change the law,” he said. “We need to clarify the process of filling the office of lieutenant governor to ensure accountability to the people through election or, minimally, Senate confirmation.

Senator John L. Sampson of Brooklyn, the leader of the Democratic conference in the chamber, issued a statement congratulating Mr. Ravitch, saying that “today’s ruling will encourage all parties to end the political rancor and work together to meet the needs of all New Yorkers.”

AZ Court Decides Budget Question

By Jan Goehring

The Arizona Supreme Court denied Republican Governor Jan Brewer's request that the Legislature immediately send her the budget bills, passed June 4, 2009. The Republican-controlled Legislature had held the bills while continuing negotiations with the Governor. A veto was anticipated. The court heard oral arguments yesterday and took jurisdiction of the case. The ruling described the situation as a "good faith" dispute between the two branches of government. The Legislature assured the court it would transmit the bills by June 30. The Arizona House Republicans have posted a link to the opinion.  

Arizona Budget Goes to Court

By Jan Goehring

Arizona Governor Jan Brewer filed a lawsuit against the Legislature yesterday claiming the state constitution requires they send her the budget bill passed June 4, according to azcentral.com. The bill faced a likely veto. The presiding officers, Senate President Bob Burns and Speaker Kirk Adams, held the bill as negotiations with the Governor over their budget differences continued.

On Monday, in response to the threat of litigation, the leaders issued a joint press release.  "It is unfortunate the governor is seeking to involve the courts in an ongoing budget negotiation while the Legislature is still in session. It delays and obstructs the process.” 

The case is on a fast track with a response from the Legislature due Friday and a hearing scheduled for next Tuesday.

New York Senate Update

by Karl Kurtz

Yesterday a New York judge dismissed a case filed by Senate Democrats to overturn the Republican-led coalition's takeover of the state Senate.  The judge said that it would be an "improvident intrusion" for the courts to intervene in a legislative branch dispute.  The effect is to throw the matter back to the senators to resolve for themselves.

The Thicket can't keep up with this saga.  Plus we don't want to become all New York Senate all the time.  For those interested in blow-by-blow accounts, check in periodically with The Daily Politics or Capitol Confidential.

The Rockefeller Institute's Bob Ward has a nice commentary on the situation in the Albany Times-Union. He concludes:

A ruling from the high court would likely be the quickest route to resolution of the Senate stalemate. But in legislatures, which are intended to balance complicated and conflicting interests, the easy answer is not always the best.

Photo credit: "Acting State Supreme Court Justice Thomas McNamara, right, addresses attorneys representing Republicans and Democrats in the Senate leadership fight before dismissing the case Tuesday in Albany. (Paul Buckowski / Times Union"

Extension for States on Adam Walsh Act

by NCSL Staff

A victory for states! This week, Eric Holder, the Attorney General of the United States, signed a one year agreement to extend the deadline for states to comply with the Sex Offender Registration and Notification Act (SORNA), which is part of the Adam Walsh Child Protection and Safety Act.

This extension is a win for all states and one that the National Conference of State Legislatures has fought hard for on Capitol Hill. It also represents an important first step toward making this tough federal law more workable at the state level.

The SORNA compliance deadline for states would have been the middle of this year. The penalty for noncompliance is a 10 percent reduction to federal Byrne/JAG law enforcement assistance grants. But with the Attorney General's signature, states now have until 2010 to come into compliance.

SORNA is a very prescriptive law that mandates information states must collect regarding sex offenders and defines different tiers of sex offenders to determine how long a person has to register as a sex offender. Many of its requirements pertain to juveniles adjudicated delinquent and will force states to completely overhaul how juvenile sex offenders are treated. It also will require periodic, including in-person, verification of registration information and requires internet-based information by added to a national registry among other related requirements.

Although this is a victory for states, many will still face challenges in implementing compliancewith Title 1 of SORNA in just one year. The cost is a major factor for states, especially during this tough economic climate. Many states are grappling with how to redefine their offender classes in order to comply with federal law, while others are working to address the juvenile provisions of the Act.

Death Penalty is Still an Issue for State Legislatures

by Meagan Dorsch

New Mexico has become the most recent state to abolish its death penalty. This brings the total number of states with the death penalty to 35. New Mexico is the second state to abolish capital punishment since the death penalty was reinstated in 1976; New Jersey did so in December, 2007.

A little more than a year ago, we sat down with NCSL's Sarah Hammond, to discuss the activity surrounding the death penalty at the federal level. While there was a narrowing of the death penalty in recent years at the federal level, the majority of activity this year was seen in the states. Eight states total introduced measures to abolish the death penalty during the 2009 legislative session.

Listen to our podcast (8:49) to learn some of the factors states might be considering when proposing legislation to abolish the death penalty, what happens if a states does change their law on capital punishment and why the federal government has said they have taken some of their leads on this issue from states.

Community Supervision of Offenders

by Meagan Dorsch

As states struggle to balance their budgets, many states are looking at allowing offenders who break the rules of their probation/parole to serve time in the community and preserve expensive prison beds for more dangerous criminals. 

Nationwide, 35 percent of all state prison admissions in 2006 were for offenders who violated their parole, not for new convictions, according to the most recent figures from the Federal Bureau of Justice Statistics. California led the nation: nearly two-thirds of its prison admissions were attributed to parole violations.

In this edition of The Buzz, Alison Lawrence, a criminal justice expert with The National Conference of State Legislatures, explains the three broad approaches states have developed to handle violations and what strategies state lawmakers are using to hold offenders accountable for breaking the rules of probation or parole.

NCSL has identified corrections and sentencing as one of the Top 9 Issues legislatures across the country will face during the 2009 legislative session.

Listen to our podcast(8:03) and read Alison Lawrence's Probation and Parole Violations: State Responses report. 

Federal Law Provides a Floor, not a Ceiling, for State Regulation

by Susan Frederick

The New York Times today labeled a Supreme Court decision in Wyeth v. Levine "one of the most important business cases in years." It was also an important federalism case—one that the states won on a 6-3 ruling.

The details of the case of a Vermont woman whose arm was amputated after she was given an anti-nausea drug using an injection method that led to gangrene are described in the New York Times story. The issue was whether the drug-maker had adequately warned against this injection method. Vermont state courts ruled in favor of the woman, and the drug company, Wyeth, appealed to the Supreme Court.

The key federalism issue was whether FDA regulations preempt conflicting state laws in cases involving a drug company's failure to warn of dangers. The FDA had taken this preemptive stance in a preamble to a 2006 regulation on prescription drug labeling. NCSL had weighed in at the time against the FDA's promulgation of this regulation in a letter to then Health and Human Services Secretary Mike Leavitt citing several valid reasons why the regulation should not go forward:

18 vs. 21: States Battling Lowering the Minimum Drinking Age

by Michelle Blackston

Since 1988, 21 has been the minimum legal drinking age for all 50 states and the District of Columbia. That's because Congress enacted the National Minimum Drinking Age Act just a few years prior.

Over the last few years, some state legislatures have considered legislation to lower the minimum legal drinking age. Remember our August Thicket posting on this issue? We said there would be more to come!

In 2007, New Hampshire considered a bill to lower the drinking age to 18. In 2008, the Minnesota Legislature debated a bill that would have allowed those over 18 to consume alcohol in bars and restaurants. Kentucky, South Carolina and Wisconsin considered legislation that would have allowed military personnel over the age of 18 to drink alcohol. Vermont established a special committee to study the issue.

In this edition of The Buzz at State Legislatures Magazine, we sit down with Matthew Gever, a policy associate with the National Conference of State Legislatures. Matt explains why this issue has become a heated debate in some states and why it's gaining a lot of traction. He also talks about the consequences states could face by lowering the drinking age and what dangers could face younger drinkers. 

Listen to our podcast (7:30) and weigh in on the issue. Do you think states should lower the minimum drinking age?