May 8, 2006
Eminent Domain Developments
The Missouri General Assembly has just passed HR 1944, an interesting approach to balancing governmental interests in use of eminent domain powers and private parties' concerns about potential governmental overreaching. The St. Louis Post-Dispatch highlights key features, including special protections for farms, requirements that governments pay certain moving expenses, requirements that governments pay homeowners 25% more than property would command on the open market, and payment of enhanced "heritage value" (based on number of years owned) for homeowners and businesses with fewer than 100 employees. The legislation also calls for creation of the position of ombudsman by the office of public counsel to assist citizens and document the use of the eminent domain power.
May 7, 2006
Legislative Trends and Tensions: Year to Date
State Net Capital Journal's most recent report includes an overview of state legislative trends so far this year. Among the highlights are: Maryland's requirement that major employer pay 8% of wages toward employee health benefits; Massachusetts' universal healthcare program; Washington State's ban on phosphates in dishwashing detergents; South Dakota's near-total ban on abortions; eminent domain amendments post-Kelo; lobbying reform post-Abramoff; limits on disruptions of funerals (such as those created by anti-gay church members from a Kansas church); energy assistance; minimum wages; and use of deadly force to protect homes. Also of note--some states have significant budget surpluses, including Wyoming, Washington and Utah (reported to have better than $1 billion each).
As to tensions: two stories stand out. There is reportedly a deep division within the Virginia legislature regarding funding strategies for major transportation improvements (the Senate wants to pay for them through tax hikes and the House strongly objects). Governor Timothy Kaine is preparing an executive order that would declare police, prisons, and hospitals among other state agencies as "necessities of government" that would continue operating in the event of a budget impass on July 1. Lawmakers and academics disagree on whether the Governor would have power to exercise executive authority in this way. If the Governor acts in this way, various legal challenges are predicted:
"Employees at agencies not deemed essential, for example, could be inclined to ask a court to force Kaine to keep their agency open. Previous situations like this in other states offer little guidance for how a court might respond.
Legal scholars say it is unlikely that any court will order all of government to be either shut down or kept open, and judges are usually unwilling to make judgment calls that are normally left to politicians. A similar stalemate in KENTUCKY in 2004, for instance, left the Bluegrass State without a budget for months. In that case, the courts simply sat on the challenge to the governor's authority until the dispute was resolved in the Legislature. The judge then declared the case moot. (WASHINGTON POST)
Finally, Governor Jeb Bush of Florida had his own tangles with legislative colleagues regarding his proposal to seek voter approval of an expanded voucher programs allowing use of public money to send children to private schools, after a recent Florida Supreme Court decision ruled a 1999 voucher program unconstitutional The Republican-controlled State Senate rejected the proposal by a single vote, and the Republican majority leader (who opposed the measure) was subsequently stripped of his office by the State Senate president. The Senate is expected to take up an alternative bill.
Arm of State: Not
The Supreme Court late last month provided further clarification about the implications of the "arms of the state" sovereign immunity doctrine under the 11th amendment in other circumstances. Northern Insurance Company of NY v. Chatham County, Georgia involved a suit in admiralty by an insurance company that sought damages in connection with the collision between an insured boat and a county drawbridge that was alleged to have malfunctioned. The county asserted immunity from suit in admiralty, arguing that it possessed "residual immunity" for purposes of admiralty law, even though it could not have asserted immunity under the "arm of the state" immunity doctrine for purposes of 11th amendment sovereign immunity analysis.
In an opinion by Justice Thomas, the unanimous court held that: an entity that does not qualify as an “arm of the State” for Eleventh Amendment purposes cannot assert sovereign immunity as a defense to an admiralty suit. He reasoned that sovereign immunity from federal actions results from sovereignty that pre-existed ratificaiton of the Constitution and that related principles regarding "arms of the state" should apply in admiralty actions as well. The Court also rejected the county's alternative argument that a distinct sovereign immunity doctrine should bar in personam admiralty suits in cases arising from the county's exercise of core state functions relating to navigable waters.