The Thicket at State Legislatures

Initiative Fun in Michigan

by Brian Weberg

Michigan voters are going to have some fun this fall if sponsors are able to get a raft of government reform proposals certified in time for the ballot.  In addition to the proposed measures to create a part-time legislature with reduced pay and to elect state senators statewide on a proportional basis that we reported here a few months ago, recent news from the Wolverine State highlights what some are suggesting is a stealth campaign to shift the state's political balance of power under the guise of government reform. 

Proponents argue that the measure brings long-needed change to state government.  The lengthy amendment includes reductions in the number of members in the legislature, pay cuts to the governor, legislators and judges, new financial disclosure rules, lobbying restrictions and reform of the redistricting process. 

Michigan Republican Party chairman Saul Anuzis, comically struggling with a fold out copy of the initiative in a video on YouTube, commented "I've seen Michelin maps of Europe that were smaller and easier to read."  Republicans have come out strongly against the proposal, while the spokesperson for the measure is Dianne Byrum, a termed-out state legislator who completed her legislative career as leader of the House Democrats in Lansing.  However one judges the merits of the reform, it's clear that it is adding fuel to the already scorched political landscape in Michigan.   

Death Penalty Ruling will Impact States

by Sarah Hammond

On June 25, 2008, the United States Supreme Court barred imposing the death penalty for individuals convicted of raping a child.

The challenge in Kennedy v. Louisiana came from a Louisiana man who was sentenced to death in 2004 for the brutal rape of his 8-year-old stepdaughter. The 5-4 decision held that executing child rapists violates the Constitution's ban on cruel and unusual punishment.

"The death penalty is not a proportional punishment for the rape of a child," Justice Anthony Kennedy wrote in his majority opinion.

The ruling will affect Louisiana and five other states, Georgia Montana, Oklahoma, South Carolina and Texas, who in recent years amended their death penalty statutes to make the rape of a child a capital offense. 

Louisiana was the first to do so in 1995, adding death for the rape of a child under the age of 12.  Unlike Louisiana, the other states limited the death penalty to defendants who had previous convictions of sexual assault against a child. 

Judges Jam up Lawyer-Legislators in New York

by Karl Kurtz

In a tangled web in which it is difficult to sort out fact, fiction and rumor, New York State judges are jousting with the Legislature over a pay raise.  Neither state judges nor legislators have received a pay raise since 1999.  The state Senate passed a pay raise for judges in 2007, but the bill did not make it out of the Assembly, purportedly because Assembly members want their own pay raises tied to the judges'.

State judges are angry over the failure to get pay raises and are striking back.  Chief Judge Judith Kaye has filed a lawsuit against the governor, Speaker Sheldon Silver (photo) and Senate Majority Leader Joe Bruno demanding a pay raise.  The attorney general, Andrew Cuomo, has declined to defend the governor and legislators in the case, so the state is hiring outside counsel.

Recently a number of judges trying cases in which New York legislator-lawyers--or their law firms--are appearing have recused themselves because they say that they are so angry over the pay raise issue that they would not be able to rule fairly.  At least some of them have said that this is a deliberate effort to slow down the process and punish the legislators for their inaction, even though Judge Kaye has warned them against this tactic.

Now another judge in Erie County has filed a notice with the county clerk seeking advice as to whether Speaker Silver's law firm should be disqualified from participating in a multi-million dollar civil suit because of a conflict of interest resulting from the speaker being a named defendant in Judge Kaye's suit.  For his part, Speaker Silver, who is of counsel to the firm, says that he has no stake in his office's lawsuit and that the claim is irrelevant.

As is so often the case in New York, the focus of attention is on the top leaders of the Assembly (mostly in this case) and the Senate.  They are viewed in the media as being all-powerful, autocratic and to blame for everything that is wrong or (rarely) right.  This simplistic view of the power of legislative leaders overlooks the fact that Speaker Silver and Senator Bruno cannot and do not take action without support from their party's majority caucus.  On an issue as visible as the judges' pay raises, they would not remain top leaders if they did other than the bidding of their caucuses.  Lawyers make up a minority of the members of the Assembly and the Senate, so judges taking out their frustration on the lawyer-legislators seems misguided.

Oregon Special Session Upheld by Court

by Larry Morandi

The Oregon Supreme Court ruled on February 2 that a special legislative session scheduled to start today can proceed as planned.  At issue was whether the special session, called over a year ago to test the viability of annual sessions in a state that meets every two years, met the constitutional requirements for the legislature declaring an "emergency."  The plaintiffs argued that no discrete, unforeseen crisis existed.  A circuit court disagreed (see "Oregon Court Dismisses Challenge to Special Session") and the Supreme Court affirmed that decision.

The decision was based on written notice issued by the House speaker and the Senate president on January 18 stating that "interim committees of the Legislative Assembly have identified specific budget and policy issues that need resolution without delay," not on a resolution passed in January of last year that declared an emergency.  The Supreme Court noted that "even had there been no SCR 1, the same legislators could have filed the same notice, with the same justification, and their colleagues could have agreed that a special session should be called."

One final note with separation of powers implications:  The plaintiffs asked the court to "look behind the acts of the legislators to weigh and assess the motives behind those acts."  The Supreme Court declined to go there, concluding that "Such an exercise of power by this court would be an improper invasion by the judicial branch into the very thought processes of members of a coordinate branch of government.  We have not, and we do not, claim such power."

Oregon Court Dismisses Challenge to Special Session

by Larry Morandi

In January 2007, the Oregon Legislature approved a resolution to experiment with annual sessions (see "Oregon Legislature Adopts Annual Sessions, Sort of").  On January 28, 2008 an Oregon circuit court turned down a challenge to the special legislative session scheduled for start on February 4.  Oregon State Senator Larry George argued that special sessions can only be called for emergencies and that declaring an "emergency" through Senate Concurrent Resolution 1 a year ago circumvented the constitution's prescription for biennial sessions and amounted to a "supplemental" session.

Senate President Peter Courtney and House Speaker Jeff Merkley contended the court had no jurisdiction in the case; that Article IV, section 10 of the constitution "vests with the Legislative Assembly the sole and unreviewable discretion to determine whether a special session is warranted pursuant to its emergency powers."  The court disagreed and framed the issue as "whether the Oregon legislature has properly complied with the provisions of the Oregon Constitution in calling itself into this forthcoming special session."

Judge Lipscomb determined that the resolution by itself was not adequate to trigger the legislature's emergency powers, but that a formal notice issued by leadership on January 18, 2008 provided the necessary legal backing.  Oregon Revised Statutes § 171.015 requires written notice justifying the need for a special session and Judge Lipscomb found it sufficient.  The case will be reviewed by the Oregon Supreme Court with a decision likely by February 1.      

Texas Ruling Prevents House from Removing its Speaker

by Karl Kurtz

Last Friday evening, Texas Attorney General Greg Abbott issued an interesting opinion saying that the speaker of the house is a "state officer" with a fixed term of two years and cannot be removed from the chair by the members of the legislature.  By Texas Constitution and statute, state officers can be removed from office only by a vote of impeachment in the house and trial and conviction in the senate.  Like any other member of the house, though, the attorney general said that the speaker can be expelled from the body by a vote of two-thirds of the membership.

The attorney general issued the opinion in response to a request from Representatives Jim Keffer and Bryan Cook who had attempted to oust their fellow Republican Tom Craddick from the speakership last May.  Speaker Craddick had blocked this move by ruling them out of order for the reasons that were ultimately supported by Attorney General Abbott.

The attorney general qualified his finding by saying that the Constitution does not specify that the speaker is a state officer, nor that the speaker's term of office is fixed, but that in his opinion, based on court precedents from the 19th and 20th centuries, the Texas Supreme Court was "likely" to rule in this fashion.  The attorney general refused to rule on another question that was posed as to whether the speaker has the right to deny recognition of members for motions, saying that he did not want to rule on matters of internal house rules.

Speaker Craddick hailed the decision, while his opponents decried it, as described in The Dallas Morning News story on the subject.

This opinion, which seems unusual in the context of what we know of other states' procedures, appears to be peculiar to Texas law.  Mason's Manual of Legislative Procedure, the most commonly used authority on legislative procedure in the states, specifically states:

Sec. 581. Removal of Presiding Officer

1. A presiding officer who has been elected by the house may be removed by the house upon a majoirty vote of all the members elected, and a new presiding officer pro tempore elected and qualified.
2. When there is no fixed term of office, an officer holds office at the pleasure of the body or until a successor is elected and qualified.

Mason's Manual, however, is subordinate to any state's constitution, statutes and internal legislative rules of procedure.  The attorney general's opinion doesn't mention Mason's.

Suing States Over Budgetary Decisions

by Karl Kurtz

Yesterday's Sacramento Bee has an interesting story, "State's unruly budget pattern," about the frequency with which state courts side with plaintiffs in lawsuits against California's budget settlements.  In addition to large legal fees for the state, these decisions often mean that budget cuts made by the legislature to balance the budget in one year have to be paid back with interest in later years. 

In the article, California's Legislative Analyst, Elizabeth Hill, is quoted as saying that in 30 years in Sacramento she can't remember a single year in which the state was not sued over the budget.  While no doubt our biggest state often has the biggest problems and usually the biggest numbers on everything, this statement still surprised me.  I am not aware of that much litigation over budget decisions in other states.

[Addendum, 10/15/07.  Liz Hill responded to this post with an email message saying that what she told the reporter "was that I could not think of a time in my more than 30 years that we were not tracking pending litigation for its effect on the budget.  This is different than the tone of her article and the thrust of your commentary."  I certainly agree that this is different from how the reporter and I paraphrased the remark and apologize to Liz for any misinterpretation.  Nonetheless, the basic point that California appears to experience more budget litigation than other states appears still seems valid.]

When I asked our NCSL budgeting expert, Arturo Perez, about the article, he said that the California experience seemed unusual to him, too.  He asked legislative staffers in the next two largest states, Texas and New York, about their experience with litigation over the budget.  His contacts in those states both told him that although they have had to deal with lawsuits over school funding, spending limits, corrections and a few other areas, most of the lawsuits have not dealt with the budget process or actions taken by the legislature directly tied to the execution of the budget.

Arturo and I speculate that California experiences more lawsuits on the budget not just because of its size, complexity and diversity but also because of the initiative process that has put many constraints on what the governor and legislature can do in writing budgets.

We would be interested in hearing from other states on the frequency of lawsuits against the legislature's budget decisions.  Please add a comment below or click on "Contact us" in the right column and send us an e-mail.

Poll Results: Confidentiality of Bill Drafts

Our poll, "Do you think that legislators should have the right to share bill drafts (before they are introduced) with some members of the public but not with others?", which was inspired by Bruce Feustel's post, "A Separation of Powers Victory in Wisconsin," drew 36 responses.  In a vote that was closer than we would have expected in a blog whose readers are presumably favorably disposed to the legislative branch, 21 (58%) responded yes and 15 (42%) said no.

A Separation of Powers Victory in Wisconsin

by Bruce Feustel

The Wisconsin Attorney General recently challenged the state legislature’s bill drafting procedure. Citing the state’s public records law, the Attorney General sued two legislators, attempting to require them to provide copies of their unintroduced bill drafts that they had allegedly shared with special interest groups but not the general public. Wisconsin is similar to most states in that legislators are free to share bill drafts, prior to introduction, with whomever they want to in order to get feedback on the bill from a political, legal or practical standpoint.

On June 27, a Wisconsin Circuit Judge ruled for the defendant legislators, saying the bill drafts clearly fell within an exception to the public records law. Further, the bill drafting procedure was viewed “to be at the very core of the legislature’s essential role in government and appears to be beyond the proper jurisdiction of this court.”

[Story update]: Advocates of legislative independence and the separation of powers can celebrate this victory, but an AP story (or is it an editorial?) by Ryan J. Foley has a different take on it, leading with these two paragraphs:

Wisconsin lawmakers are winning a legal battle to limit your knowledge about what they're working on - and they're making you pay $400,000 for it.

Lawmakers have racked up $398,000 in legal fees so far to defend their ability to keep drafts of bills hidden from the public, officials said Thursday. The mounting bills are being paid by taxpayers.

The story goes on to quote legislators who point out that it was the Attorney General who brought the suit in the first place and caused the Legislature to have to defend itself.

[Bruce Feustel is a senior fellow in NCSL's Legislative Management program.]

Postmortem on Property Rights

by Larry Morandi

As expected, the eight property rights ballot measures dealing solely with eminent domain received voter approval on November 7 (Louisiana approved theirs on September 30).  All passed with comfortable margins ranging from 55–86 percent.  Six were legislative referrals and three citizen initiatives.  Not surprising since the bills enacted by 30 state legislatures after a controversial Supreme Court decision—Kelo v. New London—received comparable levels of support.

The twist in the elections was that two of the three ballot measures that combined eminent domain with another property rights issue—regulatory takings—lost, and a fourth that dealt only with regulatory takings also went down to defeat.  Eminent domain differs from regulatory takings in that the former is a physical taking of property while the latter occurs when a regulation deprives a landowner of all economically viable use of the property.  The regulatory takings measures would have required government to pay landowners for any reduction in property value caused by a regulation or rescind the action.

They went down for a number of reasons.  How much it might cost budget-strapped cities and counties and what the effect on local planning would be were certainly considerations.  Resentment that much of the financial backing came from out-of-state sources was also at play.  Another concern?  Property rights "cut both ways"—how do you balance the rights of individual landowners with those of their neighbors whose property values may be affected by incompatible development.

Expect the regulatory takings debate to continue during the 2007 sessions, though most likely not in combination with eminent domain…which will receive more attention on its own.

Most Anti-Government Ballot Measures Headed to Defeat?

by Jennie Bowser

Frustration with government is evident in the collection of measures on statewide ballots tomorrow:  at least 14 measures in 11 states aim at curbing government power through limiting terms, reining in the judiciary, limiting taxes and spending, or restricting government’s right to regulate land use. 

Here’s a run-down on what recent polls are showing on the anti-government ballot measures:

With a vote that could be the nail in the coffin of the term limits movement, Oregon’s legislative term limits proposal is headed toward failure – 57 percent of those polled last week said they would vote no.  And since Oregon votes entirely by mail, it’s likely that many ballots had already been completed and mailed at the time the survey was conducted.

Arizona Legislature Prevails

by Jan Goehring

It's a win for the Arizona Legislature and an interesting look at the interactions of the three branches of government.  "Common sense and the Constitution won in this case," said House Speaker Jim Weiers. "The Legislature is not going to tolerate power grabs by any governor, Democrat or Republican," he added according to an Arizona Republic story.

In the Forty-Seventh Legislature v. Napolitano, the Arizona Supreme Court found that the Governor exceeded her line item veto power when she vetoed a portion of a bill that related to state employee compensation. The opinion, issued September 12, 2006, states that the section in question "does not set aside a defined amount of public revenue from any specific funding source" and is not subject to line item veto power.

The Legislature, by separate vote in each chamber, authorized its presiding officers to file a suit on behalf of the Legislature to challenge the validity of the veto. The court first considered if the case posed a legal or political issue and found that the question of whether the constitution permitted the Governor to use her veto power presented a purely legal question. It then determined the Legislature had standing to bring the action based upon the vote authorizing the challenge to the veto. Also, if the line-item veto was invalid, the "Legislature's right to have the votes of a majority given effect has been overridden and the Legislature, as an institution, has sustained a direct injury to its authority to make and amend laws by a majority vote."

The Governor had argued that the Legislature's failure to try to override the veto precluded court action because they failed to exercise that remedy. The argument didn't persuade the Court. "[T]he Legislature should not be put to the task of attempting to override an invalid veto," according to the ruling.

NCSL filed an amicus brief in support of the Legislature.

Voter ID Laws in the Courts

by Karl Kurtz

Today's Los Angeles Times has a thorough story, Parties Battle Over New Voter ID Laws, on Republican efforts to reduce voter fraud through requiring IDs at polling places. Democrats claim that such requirements are designed to suppress turnout among minority populations who traditionally support Democrats.  The story contains a rundown on court cases in AZ, MO, GA, OH, FL, IN, NM and WI.  The story was prompted in part by a decision in an Arizona case in federal court yesterday not to block use of voter IDs in today's primary election.

The Enrolled Bill Rule

by Karl Kurtz

Updating a story that we first wrote about in April, the New York Times today reports that a challenge to the constitutionality of this year's federal Deficit Reduction Act was heard in Federal District Court yesterday.  The plaintiffs, Public Citizen Litigation Group, claim that the U.S. House and Senate violated the Constitution by failing to pass identical versions of the bill before it was sent to the President for signature. 

The defendants, the Department of Justice, did not argue the question of whether the bills were identical or whether the differences in the bills were merely technical ones caused by a clerical error.  Instead, according to the Times article, they asserted an 1892 precedent, the enrolled bill rule, which says that if the Speaker of the House and the President of the Senate certify that the bills are identical (which they did), then the courts are required to uphold the legislation.

The issue for the courts will be whether or not they are willing to step into what the government claims is the legislative branch's business.  Stay tuned.

Some Days you Wish for a King

by Karl Kurtz

"[My state] is frequently hamstrung by the initiative process, which thwarts the delicate balance and compromise that characterizes good legislation."

"The voters are getting better than they deserve."

"Some days you wish for a king."

These are just a few of the comments on the effectiveness of the legislature that we received from a national survey of legislative staff. Most of the survey focused on the work of legislative staff, and the results will appear in the July issue of State Legislatures magazine.

But we also asked some questions about staff perceptions of the legislative process. Because there's not room for a report on these questions in the magazine story, we want to share some of the results here in The Thicket.

Tug of War

by Jan Goehring

We all learn at some point about the three branches of government and the checks and balances between the legislative, executive and judicial branches. But how that theory plays out in the real world is a whole different ballgame.

In Arizona, the give and take between the three branches is heading into a tug of war. The Republican controlled legislature recently decided to file a lawsuit challenging a line-item veto by the Democratic governor, Janet Napolitano. The state constitution allows the governor to veto an "item of appropriation."

What the governor vetoed, however, was an employee classification for new hires that the legislature adamantly says is not an appropriation. As reported in the Arizona Republic, Speaker Jim Weiers sums up the issue by saying "If you've got a governor that's able to thwart the intent (of a bill) by superseding the intent of the Constitution, then there is no Legislature any more." NCSL has filed an Amicus Curiae Brief in support of the legislature.