The Tap: Monday, January 9, 2017

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The Tap covered election news, public policy, and other noteworthy events from February 2016 to February 2022.

Review of the day

The excerpts below were compiled from issue #48 of The Tap, which was published on January 14, 2017. READ THE FULL VERSION HERE.

Federal

Jared Kushner

• Jared Kushner, Donald Trump’s son-in-law, will serve as a senior adviser to the president-elect. Kushner, who was a key adviser to Trump throughout the 2016 campaign, is a New York-based real estate developer. He is also the owner and publisher of the New York Observer newspaper. He will reportedly not receive a salary for his position in the Trump administration. His attorneys have said that he will sell many of his assets in order to avoid potential conflicts of interest, according to The New York Times.

• There is a debate over whether or not federal law may prohibit Kushner from holding an official role in the Trump White House. A federal statute from 1967 states, “A public official may not appoint, employ, promote, advance, or advocate for appointment, employment, promotion, or advancement, in or to a civilian position in the agency in which he is serving or over which he exercises jurisdiction or control any individual who is a relative of the public official.” Some legal scholars—including Kushner’s attorney—have argued that the law does not apply to the White House. Other scholars, however, have taken the opposite view, arguing that the statute does apply to the White House.

SCOTUS Watch

• The U.S. Supreme Court heard arguments in two cases as the court returned for its January sitting:
  • The court reviewed an opinion of the Colorado Supreme Court in Nelson v. Colorado. After an appellate process and new trial, Shannon Nelson was acquitted on five charges related to statutory sexual assault. Between her initial conviction and her subsequent acquittal, the state Department of Corrections (DOC) withheld $702.10 from her inmate account to pay for costs, fees, and restitution that Nelson owed. After her acquittal, Nelson sought to get this money back. A trial court held that it did not have the authority to order the Colorado Department of Corrections to refund the money, but a Colorado court of appeals reversed, ordering that Nelson be refunded. File:Nelson v. Colorado Colorado Supreme Court opinion.pdf, however, holding that Nelson must seek her refund under provisions of the Colorado Exoneration Act and that "due process does not require a defendant to be compensated automatically for the time she spent incarcerated while seeking an appeal or new trial. Similarly, due process does not require an automatic refund of fines paid in connection with a conviction during that time."
  • In Lewis v. Clarke, the court considered whether a Native American tribe’s sovereign immunity against torts extended to non-tribal employees performing work-related actions for the tribe. In an effort to get around the Mohegan Sun tribe’s sovereign immunity, Brian and Michelle Lewis sued William Clarke personally for civil damages, but the Connecticut Supreme Court held that the tribe’s sovereign immunity applied in this case and that Clarke could not be sued personally for work-related actions performed under the authority of the tribe.

State

Initiative Filed

• The Just Want Privacy Campaign filed an initiative in Washington that would change who is able to use private facilities such as restrooms and locker rooms in public schools. The initiative would roll back a 2015 ruling by the state’s Human Rights Commission that guaranteed access to such spaces for people based on the gender with which they identify. The measure would restrict access to private facilities in public schools that are used by more than one person at a time to people of the same biological sex at birth. In order to make the November 7 ballot, Just Want Privacy must submit 259,622 valid signatures by July 7.

Kentucky Passes & Signs Two Abortion-Related Bills

• Kentucky Gov. Matt Bevin (R) signed a pair of abortion-related bills into law. The legislation was approved by both chambers of the state legislature on January 7. The first bill restricts abortions after 20 weeks, and the other requires someone seeking an abortion to get an ultrasound first. The 20-week bill was passed with an emergency clause, which means it went into effect immediately. According to The Hill, similar 20-week restrictions in other states have already been upheld in state and federal courts. Kentucky is the 20th state to pass a 20-week restriction. Kentucky recently became a Republican trifecta as a result of the 2016 elections, when the state House flipped from Democratic to Republican control.

Washington AG Proposes Plans to Limit Assault Weapons

• Washington Attorney General Bob Ferguson (D) proposed two separate plans to limit the sale of assault-style weapons and high-capacity magazines in the state. The first piece of legislation would ban the sale of those items in the state. As a fallback plan, he also proposed legislation that would make sales legal but raise the legal age to purchase and require the guns to be licensed. Ferguson said that he used a similar definition of “assault weapon” as bills passed in New York and Connecticut, which have already withstood legal challenges. Washington is one of 19 states currently under divided government.

New Hampshire Introduces Bill to Address Alleged Russian Interference

• New Hampshire State Senate Minority Leader Jeff Woodburn (D) introduced a bill to establish a committee that would “evaluate and recommend” potential state responses to alleged Russian interference in national elections. Woodburn’s first suggestion for the committee was to ban Russian-made vodkas from state-run liquor stores. The senator said that his bill was not a partisan issue, and he invited all of the chamber’s 24 members to sign on as co-sponsors of the bill. “Foreign interference in our elections not only undermines our Constitutional democracy, but our independence and sovereignty,” Woodburn said. New Hampshire is currently one of 25 Republican trifectas.

Will Connecticut See Legalized Marijuana?

• Connecticut State Sen. Martin Looney (D-11) filed SB11, which would legalize marijuana for recreational use and permit the retail sale of marijuana in the state. Looney suggested that the tax and regulatory structure should be similar to that of Colorado, saying that the plan would generate significant revenue for the state’s General Fund. If SB11 passes both chambers of the state legislature and gets the governor’s signature, Connecticut would become the first state in the country to legalize recreational marijuana through a state legislature rather than a ballot measure. Before being considered by the full Senate, SB11 would need to pass the Joint Committee on Judiciary. Connecticut is currently one of six states with a Democratic trifecta. Although the state Senate is a numerical tie, Lt. Gov. Nancy Wyman (D) gives Democrats a tie-breaking vote in the chamber.

Seven More States Jump Into Session

• State legislative sessions began in Arizona, Arkansas, Georgia, Idaho, Iowa, Kansas, and Washington. Of those seven states, six are currently Republican trifectas. Washington, the one state that is not a Republican trifecta, is currently under divided government. The Iowa State Senate came into Republican hands after Democrats lost control of the chamber in the 2016 elections. This is the first time the GOP has had a trifecta in Iowa since 1998. In total, 1,028 legislators went back to work in those six states. That number represents 13.9 percent of the 7,383 state legislators across the country.

Local

LA Strategizes to Pay Its Settlement Costs

• The Los Angeles City Administrative Office released a report stating that the city should borrow up to $70 million via bond measure to cover its legal settlement costs without drawing on its emergency reserves. The report projected that the city would spend $135 million in the fiscal year to pay these settlements, exceeding the $60 million that the city has allocated for them in recent years. Recent settlements included cases involving housing, police shootings, broken sidewalks, and wrongful convictions.
  • Los Angeles will hold a primary election for mayor, eight city council seats, city attorney, and city controller on March 7, 2017. Any race where no candidate earns a majority (50 percent plus one) of the primary votes cast in that race will advance to a general election on May 16, 2017. Thus, the March election is functionally a general election and the May election is functionally a runoff, as it is only held for races that are not determined in the primary. Los Angeles is the largest city in California and the second-largest city in the U.S. by population.

Federal Government Gives 1.1 Billion To Chicago Transit Authority

• In Illinois, Chicago officials announced that the federal government is providing approximately $1.1 billion in grant funding to the city’s transit authority. This grant will specifically fund expansions to the Red and Purple “L” rail lines on the northern side of the city. The expansion, which is scheduled to begin in 2018, is estimated to cost more than $2 billion, and the city will match the federal grant in order to pay for the project. Chicago is the largest city in Illinois and the third-largest city in the U.S. by population.

D.C.’s New Legal Defense Fund

• Washington, D.C., Mayor Muriel Bowser (D) announced that the city would create a legal defense fund for residents living in the country without legal permission. The $500,000 for this fund, which will be called the Immigrant Justice Legal Services Grant Program, will be moved from the Office on Latino Affairs. In her statement, the mayor said, “If immigration enforcement changes and problems arise, DC’s immigrant population will have our support and the support of DC’s legal community.” The Washington Post speculated that the legal defense fund was being created in response to the incoming Trump administration. Washington, D.C., is the 23rd-largest city in the U.S. by population.

Chaffetz Halts D.C. Law

• U.S. Rep. Jason Chaffetz (R-UT), who chairs the House Oversight and Government Reform Committee, announced that he would halt a Washington, D.C., law legalizing the prescription of fatal drugs by physicians to terminally ill patients attempting to die. This new law was passed by the D.C. city council in November and signed by Muriel Bowser (D) in December last year. Chaffetz’s committee has authority over city matters and can void city laws through the use of a disapproval resolution. This power was last used in 1991 to void a law that would have changed the maximum height of buildings in the city.
  • This is a form of government preemption. At the state and local level, preemption is a legal concept that allows a state law to supersede a conflicting local law due to the state's power to create cities as granted by state constitutions. The federal government can preempt state law in a similar manner. In this instance, the federal government is preempting local law due to the unique nature of how D.C. is overseen.Click here to learn more about preemption conflicts at the state and local level.

Preview of the day

The excerpts below were compiled from issue #47 of The Tap, which was published on January 7, 2017. READ THE FULL VERSION HERE.

Federal

SCOTUS is Back

• The U.S. Supreme Court reconvenes for its January sitting and will hear arguments in two cases on Monday.
  • In Nelson v. Colorado, the court will examine whether a Colorado procedural rule violates the Due Process Clause of the Fourteenth Amendment. Shannon Nelson was convicted on five counts of sexual battery at trial, but her convictions were overturned on appeal. In most states, when an individual has a criminal conviction overturned on appeal, any court costs that were held by the state are returned—but Colorado requires exonerated individuals to file a civil lawsuit under provisions of the state’s Exoneration Act. Nelson argued that her refund from the state should have been provided upon her vacated convictions, but the Colorado Supreme Court held on appeal that the procedural rules of the state’s Exoneration Act did not violate her rights to due process under either the Colorado Constitution or the U.S. Constitution.
  • In Lewis v. Clarke, the court will consider whether a Native American tribe’s sovereign immunity against torts extends to non-tribal employees performing work-related actions for the tribe. Brian and Michelle Lewis were struck by a car driven by William Clarke during the course and scope of Clarke’s work-related actions for the Mohegan Sun Casino, which is operated by an instrumentality of the Mohegan Tribe. In an effort to get around the tribe’s sovereign immunity, the Lewises sued Clarke personally for civil damages, but the Connecticut Supreme Court held that sovereign immunity applied in this case and that Clarke could not be sued personally for work-related actions performed under the authority of the tribe.

State

Seven More States Jump Into Session

• State legislative sessions are scheduled to begin in Arizona, Arkansas, Georgia, Idaho, Iowa, Kansas, and Washington. Of those seven states, six are currently Republican trifectas. Washington, the one state that is not a Republican trifecta, is currently under divided government. The Iowa State Senate will be in Republican hands, after Democrats lost control of the chamber in the 2016 elections. This is the first time the GOP has had a trifecta in Iowa since 1998. In total, 1,028 legislators will be back to work in those six states. That number represents 13.9 percent of the 7,383 state legislators across the country.