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.

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.

This is our statement on the bills:


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.

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