Kentucky General Assembly: One Week, Seven New Laws

The first 5 legislative days of the 2017 Kentucky General Assembly are in the books and in that short time, the legislature has managed to pass seven bills. Two of those bills have to do with abortion restrictions, three of those bills have to do with labor law, and the other two bills have to do with pension disclosures and the UofL board of trustees. It takes at least five full legislative days after the beginning of the session to pass any bill into law, so this has been a very fast moving session. While a lot happened last week, the overall theme was very basic: we have a legislative branch completely controlled by Republicans, and they delivered on their legislative priorities.

Labor Laws:

• HB1 — Right To Work
• We discussed HB1 last week, which is the “right to work” bill. Despite large protests from unions throughout the week, the house and senate passed right-to-work into law. To hear the potential impacts of this law, we did a whole show on it, so you should listen to that.
• This law (along with most of the others that passed) went through with an “emergency” clause, which means it becomes effective immediately, once the governor signs it. The rest of the laws go into effect at the beginning of next year.
• HB 3 — Repeal of the prevailing wage
• We did not talk about the prevailing wage on our right to work show, but the idea is pretty simple: until this week, government projects (state AND local) required that workers be paid the “prevailing wage”, which essentially means that construction workers got paid union wages. Removing the prevailing wage would save local governments a lot of money on projects, but that money would have been spent directly on workers.
• SB 6 — “Paycheck Protection” Act
• Senate Bill 6 is an iteration of what many states have and call a “paycheck protection act”. These laws require that unions receive written approval to collect dues for political activities.
• Even before this laws, unions were not allowed to finance campaigns for or against candidates and are not allowed to run election ads during campaigns. They are allowed to lobby and mobilize members for political purposes. Based on a Supreme Court ruling, union members have been allowed since 1988 to “opt out” of this kind of dues collection. However, this creates an “opt-in” situation, which will inevitably result in fewer of these types of dues being collected.

Abortion Restrictions

• HB 2 — Ultrasound Requirement
• HB 2 requires an ultrasound to be performed prior to an abortion.
• The law passed the House with 12 people voting against it, and the Senate with 5 people voting against it. All no votes were from Democrats in Lexington, Louisville, or Frankfort.
• These laws have been found unconstitutional (North Carolina and Wisconsin)
• ACLU of Kentucky has already filed a suit challenging the law on behalf of EMW Women’s Surgical Center (only abortion provider in the state)
• ACLU of Kentucky Legal Director: “The law “violates longstanding constitutional principles, including the right to privacy, the right to bodily integrity and First Amendment Freedoms”
• Right to privacy and bodily integrity: He’s talking about the 14th Amendment Due Process right. Of course, the 14th Amendment nothing about a right to privacy or bodily integrity. These constitutional rights come from Supreme Court case law, like Roe v. Wade
• First Amendment: He’s talking about freedom of speech. The idea here, is that the doctor has a 1A right when it comes to what he discusses with a patient, and this ultrasound would be compelled speech.
• Source: http://www.courier-journal.com/story/news/politics/2017/01/09/aclu-files-lawsuit-block-abortion-bill/96355178/
• SB 5–20 week abortion ban
• SB5 bans abortions after 20 weeks of pregnancy.
• It includes some language about the health of the mother, but no exceptions for rape or incest.
• This law allows men who impregnate women who have abortions to sue the “person who intentionally violated” the 20 week ban (again, no exception for rape or incest).
• Appellate courts have struck down these laws in Arizona and Idaho, and has struck down an Arkansas 14-week ban (they now have a 20-week ban that is still in effect for now).
• SB5 also creates a “litigation fund”, which could be filled by appropriations (not this session, since it’s a short session), which is to be used to defend this law in court. These laws have also been found unconstitutional
• This law will certainly face constitutional challenges, so we thought we’d talk about how these challenges happen
• Not just anyone can challenge a statute. You must have standing.
• What does standing mean?
• Basically, you have to have a real stake in the decision
• Three constitutional standing requirements:
• Injury — must be sufficient, must have a remedy
• Examples: Chokehold policy case
• Caused by defendant (the Commonwealth) — fairly traceable
• Redressable
• Example: child support prosecution case
• No standing for:
• Generalized citizen grievances, taxpayers, third parties
• Note on third party standing: Doctors DO have standing when it comes to abortion laws. Court looks at the closeness of relationship between P and third party and also looks at the third party’s ability to assert their own rights (the women may not because of privacy). ALso look at, do the parties’ interests align?
• Also has to be within zone of interests
• Standing must be shown in the pleadings
• Filing: Could file in federal court because it raises a federal question (challenge to US Constitution). Could also file in state court (circuit court), in which case it’d work its way through state appellate process, and then after the Supreme Court of Kentucky, it could go to the US Supreme Court
• What does this litigation fund mean?
• Essentially, Andy Beshear, our Democrat Attorney General is not going to defend these laws. The litigation fund sets aside money to have private firms defend the suits.

SB3 — Disclosure of Legislator Pensions

• Pensions paid to legislators are subject to disclosure in the Open Records Act. ALL pension benefits have to be disclosed, too: KRS, KTRS, Judicial Retirement Plan, in addition to Legislators Retirement plan.

SB12 — AN ACT relating to responsible real property ownership.

Amend KRS 258.095 to modify the definition of persons who would qualify as the “owner” of a dog for purposes of that chapter.

• The bill which addresses Governor Bevin’s restructuring of the UofL board of trustees passed 25–11 in the Senate and 57–35 in the House, meaning fewer GOP members voted for it than any other bill that passed last week. One Republican actually voted against the bill in the Senate (Will Schroder of Wilder voted against it).
• The first thing the law does is legitimize the Governor’s actions — it abolishes the board and recreates a smaller one and allows the Governor to appoint the board of trustees from people on a list provided by a commission.
• The law also requires that future BoT members be subject to confirmation by the KY Senate.
• The GOP made a lot of mention of a similar law that was passed by the Democratic led legislature in 1992. The legislature did, in fact, pass a law that abolished and recreated the Board of Trustees at Kentucky universities and created a new way in which the trustees were selected. However, in 1991, right as Governor Wallace Wilkinson’s term was ending, he nominated HIMSELF to serve as a trustee at UK. Wilkinson hated the then-president Charles Weathington, and this was a pretty bold move. The legislature and next Governor (Brereton Jones) were really mad, so they changed everything around. Is this the same thing?
• In shortening the membership of the BoT, the law does away with all but two people who serve a term longer than 4 years (there had been six, previously). This could make the board more political, as a higher proportion of BoT members would be nominated by a governor in each term.
• As we discussed a couple of weeks ago, SACS, the accrediting body, has placed UofL on probation because of Governor Bevin’s actions related to the board of trustees. This law might deal with some of the accreditation issues raised by SACS, the major issue was the dismissal of the trustees without a hearing. This issue still stands, even after this law has been passed.
• Democrats were fuming about the speed at which this law was passed. SACS was due to send UofL a letter this week regarding the university’s probation — why they were concerned and how UofL could fix the problem. Democrats basically begged for the GOP to wait for this letter before passing SB12, but they were rebuffed. The GOp really wanted this passed before the initial recess.
• The GOP legislature might have been moving quickly in order to impact the court case Andy Beshear filed against the Governor’s actions. The KYSC agreed on Monday (the 9th) to expedite this case, bypassing the Appellate Court. The new law might have an impact on how the case will be argued
• There’s a mootness argument, because Bevin’s actions are now codified in a new bill
• There’s an exception to mootness: “capable of repetition yet evading review”
• AG’s argument would be that this is his MO and he could do this again

What’s Next?

• Medical malpractice ‘tort reform’ legislation has passed the Senate and is awaiting action by the House. There are other tort reform laws that have been introduced.
• SB107 extends the Governor’s powers around boards. It would legitimize all of the Governor’s board-related actions, and grant him new powers over state boards. The Governor could dismiss entire boards if they are not performing up to standards, including “inability to reach a consensus”.
• There was a RFRA and bathroom bill introduced in the House, by Rick Nelson, a Democrat from far Eastern KY. Governor Bevin has stated that he doesn’t care about a bathroom bill, but the RFRA might see action.
• There is a bill in the house making killing of a police office a hate crime.
• No sex with pets.
• Robert is looking at bills relating to jailers, pensions, and heroin.
• The extra Saturday session cost the state $70,000, and the Governor didn’t even sign the laws until Monday.
• The legislature has adjourned until February 7.

Quick Hits

• State Auditor Mike Harmon has indicated that his office will audit the Yum Center’s finances.
• Wednesday will be a really, really busy day for the federal legislature. Many of President-elect Trump’s nominees will have hearing, the vote-a-rama to begin the repeal of the ACA is going on, and President-elect Trump will have a press conference for the first time in about 6 months.
• David Lee Wilbers, the investigator whose false statements to grand juries led Matt Bevin to text Andy Beshear that his office was “an increasing embarrassment to the Commonwealth” has been fired.