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
