Wednesday, March 19, 2014

2014 Budget Session: Legislative Wrap-Up

The Wyoming Legislative session ended last week on a disappointing note with Representatives Bob Nicholas (R- Cheyenne) and Tim Stubson (R-Casper) destroying SF 28 Post- Conviction actual innocence and SF30 Compensation for persons exonerated based on DNA evidence. Rep. Nicholas amended both bills to include onerous hearing provisions that indicated that he was on a crusade to ensure that those wrongly incarcerated would not be compensated for the miscarriage of justice.  The House members refused to compromise on the amendments in the conference committee which led to both bills being indefinitely postponed. The Casper Star-Tribune, Wyoming Tribune Eagle and WyoFile all wrote excellent articles on this travesty. Both bills started with good support on introduction and an understanding with most legislators and observers that the bills were needed, if not long overdue. It is frustrating to see such willful pique in legislators. 

In other news of willful pique, the Medicaid expansion proposals to provide health care for Wyoming’s poor was again blocked in the name of political grandstanding to the base and a pathetic little bill allowing that the Governor “may” explore the expansion with the feds was passed. Given the fact that the Governor has stated that he has no intention of ever doing anything of the sort it was more like a slap in the face to those who go without adequate health care in our state. This despite the hundreds of constituents that made it clear to their representatives that they supported the bill.

HB49 Marijuana possession was a bill that would have decriminalized the possession of small amounts of Marijuana which did not pass introduction. It was given  little legitimate discussion as one legislator thought it would bring drug cartels roaring into Wyoming to do business. Of course, legalization and decriminalization bills have proven to do exactly the opposite, and not only keep millions of citizens out of jail, but keep criminals out of the marijuana business. Wyoming spends millions a year jailing and prosecuting small time offenders leaving those offenders with a criminal record that can follow them their entire life. For further information on how marijuana laws are harmful and ineffective, read our Program Coordinator, Ryan Frost's article It's time to rethink pot laws in Wyoming, or go to the The Uncovery to use the ACLU's new interactive online tool for marijuana arrest information.  

HB77 The Student Religious liberties bill, which was sponsored by Rep. Kroeker and supported by the WyWatch Family Action group outlined a number of protections that are already stated in the Constitution and case law the bill then went on to provide statutory protection for students that proselytized or prayed in the classroom and at student events. Testimony in the committee hearing decried the fact that Gideon Bibles were no longer passed out in the classroom and that teachers were forced to lie to their students about evolution, science, history, and socialism.  The ACLU of Wyoming was the only group that testified against the bill in committee, but fortunately the bill was never considered in the Committee of the Whole.  The WyWatch group blamed Rep. Kermit Brown R- Laramie for this, according to their website.  

Similar bills have popped up across the nation and are a clear danger for all of us.  A grave concern is that this type of law would allow students to harass and bully other students under the guise of religious freedom.  The bills are similar in nature to the religious refusal bills. (A religious refusal bill was just vetoed by the Governor of Arizona to much hue and cry)

Rep. Connolly’s HB 87 Marriage Equality bill also failed introduction, but it is heartening to continue to see these bills being sponsored and of course the ACLU will vigilantly continue to work for passage.

HB100 Investigative subpoenas Our perennial favorites are the investigative subpoena bills and we see one almost every session as the law enforcement folks continue to try and broaden their power for investigating without probable cause.  Glad to see this one fail in the Committee of the Whole.

HB105 Unmanned aerial surveillance  We were sorry to see this “drone” bill fail. It was a good bill and provided the privacy protection needed by requiring that law enforcement have a warrant for the use of drones in criminal investigations. It is unfortunate that this bill did not pass as the use of drones is going to grow at an incredible rate in the next few years and it would have been good to be in front of this growth with our laws.

This mean-spirited HB108 Validity of marriage bill from Representatives Gay, Davison, Halverson and Jaggi would ensure that same-sex couples married in other states would have absolutely no rights in Wyoming and was surely partly in response to the Wyoming Supreme Court case that allowed for same-sex couples married in other states to divorce in Wyoming.  The bill failed introduction.

HB126 Restoration of rights after felony conviction No easing of requirements for restoration of rights, but kudos to Representatives Zwointzer (Dan), Barlow, Connolly, Greene, Kroeker, Loucks, Petroff and Senator Case for continuing to try.

HB134 Death penalty repeal Rep. Watt filed a this bill – what a surprise. That it failed introduction, not a surprise.

HB158 Indecency A really scary, undoubtedly unconstitutional indecency bill sponsored by Representative Jaggi, Davison, Gingery, Halverson, Krone and Senator Craft that would have changed public indecency to private indecency if it caused “affront or alarm”. Your Uncle Bob in his boxers and t-shirt might cause affront or alarm sitting in his Barcalounger. But should he go to jail for it?!? We were glad to see this bill fail.

SF34 Involuntary hospitalization - emergency hearings  Using very good sense the legislature passed this short clarification of the County Attorney’s responsibility in involuntary hospitalization (mental health holds) instead of the complicating, due process killing sister bill SF40 Involuntary hospitalization and treatment.    

SF47 Katie’s Law  After a great deal of amending and discussion, Katie’s Law was again defeated.  These laws allow for the collection of DNA upon arrest and are basically just fishing expeditions for law enforcement for individuals who are considered innocent until proven guilty. Statutes now allow for DNA to be taken and stored upon conviction of certain violent crimes.

Senator Bruce Burns’s SF49 Death penalty – execution  “death by firing squad bill” failed introduction. Death penalty states are facing severe problems as drug makers that supplied the execution drugs are no longer willing to supply them for execution due to changing attitudes toward the death penalty.

SF87 Public records preservation, a good bill that died in committee.

SF116 Expungement of felonies a bill that allowed for an expansion of the number of felonies that might be expunged passed with added amendments.  Good bill supported by Senators Burns, Case, Driskill, Rothfuss and Schiffer along with Representatives Berger, Blevins, Colemen, Connolly, Greear, Greene, Throne and Dan Zwonitzer.

There are always a number of other bills that we follow, and a number of those bills passed giving the state more felonies with harsher penalties. There are other bills that sure waste a lot of legislative time, but can also be somewhat entertaining and we try and follow those bills during the session, too.

What’s up next?

Here’s a list of the topics we will be following during the interim. The interim will be especially busy for the Joint Judiciary Committee as they have an unusual number of topics this year and we will be following a most of them.

JOINT JUDICIARY COMMITTEE

Firearm Background Information
The Committee will examine background information provided to the National Instant Criminal Background Check System for purposes of determining eligibility to purchase a firearm including information relating to involuntary hospitalization orders.

Juvenile Data Collection
The committee will receive information and consider the need for legislation relating to the collection and protection of juvenile justice data.

Criminal Trespass for Data Collection
The Committee will receive information and investigate the need for legislation to address trespassing on land to collect data.

Sentencing and Detention
The Committee will received information from the Department of Corrections and consider legislation relating to sentencing and detention, including mechanisms for improving and managing criminal justice populations.

Forfeitures and Seizures
The Committee will review forfeiture and seizure provisions and consider the need to clarify, update and create uniformity among statutes.

Method of Execution
The Committee will receive information from the Department of Corrections concerning the need to amend provisions relating to the method of execution.

JOINT CORPORATIONS, ELECTIONS AND POLITICAL SUBDIVISIONS COMMITTEE

Electronic Records

Employers Review of Social Media

Social Media Accounts Upon Death

JOINT LABOR, HEALTH AND SOCIAL SERVICES COMMITTEE

Mental Health and Prevention Management
The Committee will study access and quality of care issues in the states’ mental health system, including overall access to substance abuse/mental health care, suicide prevention and the prevention management organization, and employee drug testing at the state institutions.

SELECT COMMITTEE ON TRIBAL RELATIONS

Education
The Committee will receive reports and review information regarding education, including mechanisms for improving the quality of education and for improving graduation rates the committee will review opportunities for vocational and medical field training and will also receive a report on the new Wind River Job Corps Center.

Law Enforcement and Juvenile Justice
The Committee will consider issue relating to law enforcement, jurisdiction, juvenile justice and domestic violence. The Committee will also receive a report from the Indian Law an Order Commission.

SELECT COMMITTEE ON LEGISLATIVE TECHNOLOGY AND PROCESS

General Responsibilities Relating to Public Information and Public Outreach
As previously assigned by management Council, the Select Committee on Legislative Technology and Process will oversee legislative public outreach initiatives and efforts to improve the information available to the public about legislative activities.

All of the committees work is available here. Citizens are welcome at committee meetings to listen or give testimony. It is a great way to interact with and influence legislators.




Written by Linda Burt, executive director

Thursday, March 6, 2014

ACLU of Wyoming statement of support on marriage lawsuit, Courage v. Wyoming

Yesterday, four couples and Wyoming Equality filed the first-ever challenge to Wyoming’s laws on marriage in the case of Courage v. Wyoming. While we are not directly involved in this lawsuit, the ACLU of Wyoming stands in solidarity with Wyoming Equality and the plaintiffs who are arguing that current law violates the Wyoming’s Constitution’s guarantee of equal protection and due process.

Marriage is a unique, one-of-a-kind promise that represents love, commitment and responsibility, and the ACLU of Wyoming believes that LGBT people, like everyone else, should have the freedom to marry the person they love. The ACLU is proud to have been part of the LGBT rights movement since 1936 and we will continue to work alongside our partners until the freedom to marry exists in every state. 

Thursday, February 20, 2014

Legislative Update: Week Two

As usual the first week of the 2014 Wyoming legislative budget session was brisk and many non-budget bills had been filed for consideration. During a budget session any bill that is not an appropriations or budget bill must receive a 2/3 vote for introduction.  A number of bills received that 2/3’s vote this year giving committees a lot of work to accomplish in the first weeks of the session. Thursday February 20, 2014 was the last day for bills to be reported out of the Committee in the House of Origin. Those bills that were not reported out were effectively dead for the rest of the session.  The last Medicaid expansion bill to be considered was not reported out of committee and so died in committee on Wednesday the 19th. The Chairman of the Committee did not hold a vote on the bill and effectively killed it without having any of the members on record with a vote.

The Wyoming Supreme Court’s recent decision on the Superintendent of Education, Cindy Hill’s case has further confused the future of the Department of Education and the role of both the legislature and the superintendent.  This issue has widened the apparent difference of opinions within the Republican Party. It remains to be seen if the legislature will be able to fashion a solution to this incredibly divisive issue or if they will even try.

For the first year in sometime the ACLU was not dealing with controversial reproductive rights legislation which was a great relief. While there were two LGBT issue bills filed they died early in the first week. Representative Connolly filed a definition of marriage bill that would have simply defined marriage as a between two persons.  Representative Gay filed a validity of marriage bill which would have denied LGBT couples married in other states any rights in Wyoming. Fortunately, that also died a quick death.
We were left this year to lobby a number of bills that contained interesting but sometimes complicated constitutional issues.  We also watched a number of bills that might provide some concern to the ACLU.  Normally we do watch the elections bill to make sure there is nothing of note in the changes promoted.  Our office also watches criminal bills with the same concern.

Our office was working with Representative Sue Wallis on a marijuana legalization bill when Representative Wallis unexpectedly died a week before the session. Representative Wallis was a great representative who we often worked with on reproductive rights issues and she will be greatly missed by many in the legislature.  Her replacement, Troy Mader, has little background for the legislature and once published a book saying that individuals with HIV/AIDS should be prohibited from having sexual relations, quarantined because of their “filthy sexual habits”. 

Representative Byrd filed a bill to decriminalize the use of Marijuana that failed introduction.  There has, however, been talk of changing these laws for the past two years.  There are still many in the legislature that have an archaic view of marijuana use and prefer to see our young people locked up in huge numbers for possession.  Ryan Frost had a great op-ed published in both the Casper and Cheyenne papers outlining the argument for the loosening of penalties for possession or use of marijuana. I hope that this bill will come up again in the next session and will at least be given a fair discussion.

I testified this week in the House Judiciary Committee on HB 77; a bill that would “ensure” religious liberties for students.  The reasoning behind this bill is that Christian students are being discriminated against in public schools because of their beliefs.  I think you would find it interesting to review the bill:


This was our statement on the bill -

Children’s religious education should be directed primarily by parents, families and religious communities and not by the public schools.

HB 77 is unnecessary: students’ rights to express and practice their faith in the public schools are already well-protected by existing law.

The First Amendment already protects students’ voluntary ability to pray and express religious viewpoints. The U.S. Constitution, the Wyoming Constitution, and federal laws already guarantee that these rights cannot be denied.

 Sections of HB77 21-4-701 through 21-4-704 cover rights that are already settled law and statutory authority is not necessary.


Section 21-4-705 which attempts to devise a limited public forum does not meet the criteria necessary to set up that forum.

In an attempt skirt the Constitution, Section 21-4-705 requires that, whenever a student is slated to speak at a school event, a school must establish a so-called “limited public forum.”  This fix rests on a fundamental misunderstanding of what constitutes a limited public forum and the nature of religious coercion.   Schools that set up the policy required by Section 21-4-705 are not likely to have set up a true limited forum that would be recognized as such under the law.

“The right to engage in voluntary prayer or religious discussion free from discrimination does not include the right to have a captive audience listen, or to compel other students to participate. Teachers and school administrators should ensure that no student is in any way coerced to participate in religious activity.”  See “Religious Expression in the Public Schools,” issued by the United States Department of Education, Secretary of Education, May 1998.  This guideline issued by the U.S. Department of Education is consistent with the constitutional strictures on public schools recognized by the Supreme Court and other federal courts.  Under the Establishment Clause, students may not be subjected to unwanted prayer and proselytizing as a condition of attending a public school.  Section 21-4-705 would flout this fundamental principle of Establishment Clause law.  It would subject students to religious coercion in a limitless range of settings, including those which the Constitution already prohibits, e.g., prayers over the loudspeaker at football games and reciting Bible verses during morning announcements.  

As a result, students of minority religious faiths (and non-believers) may be routinely required to accept religious messages or participate in religious exercise that conflicts with their own religious beliefs.  Conversely, if a student of a minority religious faith (e.g., a Muslim, Wiccan, Buddhist, etc.) or a non-believer were to be selected (under a “neutral criteria”), that student would be permitted to subject all classmates to prayer and proselytizing specific to his or her faith tradition and beliefs in connection with school events.  In both cases, parents would have no recourse to ensure that their children were not coerced into such religious exercise. 

Every session we deal with law enforcement agencies that want the power to be able to issue investigative subpoenas without probable cause. HB100 is another one of these attempts; but so far legislators have resisted allowing this without probable cause but we will continue to keep watch on it.  Basically subpoenas without probable cause are just fishing expeditions.

Our office had drafted and offered a bill on unmanned aerial surveillance (drones) to the joint judiciary committee with no takers but Representative Loucks has offered a bill that looks like it took some items from our bill and we are supporting it. http://legisweb.state.wy.us/2014/Introduced/HB0105.pdf

Representative Zwonitzer once again offered a bill to make the restoration of rights after a felony conviction easier but there are still members who believe that there should be no second chances and the bill failed introduction.

Representative Watt brought a death penalty repeal bill that was a surprise and of course failed introduction but we did take the opening to write an op-ed about abolition that should be in the papers within the next week.

One of the tougher discussions has surrounded the involuntary hospitalization of the mentally ill.  The Joint Judiciary Committee had this as an interim topic last year and took a lot of testimony from folks, much of it contradictory.  The Committee did come up with two bills and a third bill (SF114) was offered by the county attorneys.  During the Senate committee hearing for SF36 and SF40 our office, the Wyoming Trial Lawyers Association and the County Attorneys Association all argued against SF40 which promptly passed out of committee.

http://legisweb.state.wy.us/2014/Introduced/SF0034.pdf

This is our statement on the bills:

INVOLUNTARY HOSPITALIZATION

The inadequacies within the involuntary commitment procedures (W. S. 25-10-109 – 110) are not addressed in SF0040 – Involuntary hospitalization and treatment.  This cumbersome bill obliterates due process for those held against their will and exacerbates the current systems deficiencies.

SF0034 – Involuntary Hospitalization – emergency hearings is a simple straight forward bill that solves the current problem of individual county attorney’s refusal to participate or facilitate the emergency detention and involuntary hospitalization process.  

The most significant issue for Wyoming is the lack of facilities for treating mental illness in our state.  Even larger towns struggle to find appropriate treatment facilities and the waiting list for the Wyoming State Hospital is sometimes as long as two months. Neither bill addresses this issue.

Please vote no on SF0040 to protect the individual right to due process and the liberty interest.
Vote yes on SF0034 in order to ensure county attorney participation in the Title 25 process.

Senator Nutting brought Representative Esquible’s Katie’s Law bill from last year. We were able to kill the bill last year and this year so far there has been some improving amendments but we are still not in favor of the bill.

http://legisweb.state.wy.us/2014/Introduced/SF0047.pdf

This is our statement on the bill:

SF0047 – Katie’s law does not meet the constitutional protections required for obtaining and retaining personal DNA information.  In a recent Supreme Court case decision Maryland v. King, 569 U.S. ____ (2013) the Court found that Maryland was not prohibited from taking a DNA cheek swab from an arrestee under the Maryland DNA Collection Act.

In his dissent Justice Scalia stated:

The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence.

We agree with Justice Scalia and urge you to read his entire dissent.  While we agree with Justice Scalia and find the majority decision troubling even the majority Court found that a number of safeguards must be in place in order for this intrusion into privacy to take place.

SF0047 – Katie’s Law contains none of these protections.

The Maryland DNA Collection Act:
1.      The DNA sample may not be tested or placed in the DNA data base prior to arraignment.
2.      If charges are dropped the DNA is automatically destroyed and the arrestee and his attorney are notified of the destruction.
3.      Information filed in DNA data base is automatically expunged on all data bases’ upon a not guilty finding, a conviction that is reversed or vacated or an unconditional pardon.
4.      Data must be expunged from all data bases (local, state, federal) within 60 days and a documentary letter sent.
5.      Any samples that are matched prior to expungement may not be used as admissible evidence or for probable cause in a criminal case.

SF0047 contains none of these protections and requires that innocent individuals must request that DNA be removed from state data bases (no mention of federal or local data bases) and must secure and provide documentation of innocence.


Update written by Linda Burt