Capitol Updates

 This week's Capitol Updates newsletter:

 

February 18, 2019

The legislative pace picked up considerably last week, the second week of session. Bills that do not get a hearing in their assigned committee on or before February 28th will be dead for this session. That means the author and those interested in a bill have only two more meetings of a committee to get the bill heard and passed out of committee. There's not too much pressure this week, but next week will be hectic. It's like the difference between the 3rdand 4thquarter. In the 3rdquarter you're starting to feel the pressure, but in the 4thit's "do or die" time for a bill.

The legislative calendar can be brutal. It usually starts in late summer, early fall with discussion of issues for the upcoming session being aired out. Meetings, ideas, bill language move at a leisurely pace. This whole process gets somewhat sidetracked in an election year which pushes a lot of that preparation up to November. The action accelerates in early December with the bill request deadline and bill introduction in January. When session starts, it's like opening a fire hose. Bills on which authors have spent a lot of time, and put their hearts into, may end up dead for the session because they fail to meet the upcoming February 28thcommittee deadline. It's not a perfect system, but it's what you get with a part-time legislature.

This year's crop of bills reflects the priorities of an unusually large group of new and almost new legislators. The priorities include a willingness to work on social issues that in the past may have been overlooked. For example, HB 1018 by Rep. Marcus McEntire, R-Duncan that requires each school district to provide age-appropriate instruction about HIV/AIDS education and related issues, passed out of the House Education Committee. HB 1013 by Rep. Carol Bush, R-Tulsa that increases the number of ombudsmen in the Long-Term Care program at DHS passed out of the Health Services and Long-Term Care Committee.

HB 1074 by Rep. Brian Hill, R-Mustang that requires DHS to verify the applicability of the Indian Child Welfare Act within 3 months of a child being taken into custody, passed the Children, Youth and Family Services Committee. HB 1328 by Rep. Kelly Albright, D-Midwest City that broadens the ability of child-placing agencies to recruit, certify or provide services for kinship foster care also passed the Children, Youth and Family Services Committee.

These, and many other bills considered last week are not the kind of bills that generate headlines and turn out demonstrators at the Capitol. But they represent the efforts of serious newer legislators working on problems they see from their own experience or that have been called to their attention by others. The breadth of bills this session is encouraging. Real people problems like healthcare, criminal justice reform, education funding and services to people surviving at the margins seem to be on the minds of many legislators. Their efforts will take time, but they will make a difference.



House Judiciary Committee approves criminal justice reform, other measures

Shawn Ashley, eCapitol

The House Judiciary Committee approved a pair of criminal justice reform measures and a series of other bills Tuesday.
Rep. Avery Frix, R-Muskogee, said HB2310 would allow a defendant to choose whether to allow a judge to set their sentence or for it to be left to a jury. Currently, sentences are set by a jury if the defendant opts for a trial.
HB2310 requires in all cases in which a jury may assess and declare punishment: the judge to instruct the jury on the offense charged and to determine only the guilt or innocence of the defendant on the offense charged and that punishment shall not be determined by the jury at this time; and the defendant may elect to have the judge or jury assess punishment within the limitations fixed by law including sentencing alternatives available to the court or jury pursuant to the provisions of statute if the jury reaches a verdict that the defendant is guilty of the offense charged or guilty of a lesser included offense. It requires the court, if the defendant elects to be sentenced by the judge, to order a presentence investigation and report, unless waived by the defendant, and shall set a date for sentencing of the defendant. It requires the court receive aggravating and mitigating evidence and argument on punishment unless waived by the State and the defendant prior to pronouncing the sentence. The bill requires the court to assess punishment within the limitations fixed by law including sentencing alternatives available to the court pursuant to the provisions of statute. The bill provides if the defendant elects to have the jury assess punishment, aggravating and mitigating evidence, including evidence of second and subsequent offenses, an argument on punishment be received by the jury unless waived by the state and the defendant. It requires the court instruct the jury on the law relating to punishment for the offense. It also requires the court instruct the jury on the law relating to second and subsequent offenses and sentencing alternatives available to the jury pursuant to statute. The bill permits the jury to assess and declare in its punishment any such sentencing alternatives available to the court.
Several committee members expressed reservations about the bill. Rep. Rande Worthen, R-Lawton and a former prosecutor, said he feared it would result in delays in the judicial system and defendants already had the right to waive a jury trial, allowing the judge to determine the guilt or innocence and set the sentence if found guilty.
"This is going to affect every county in the state and could create serious backlogs," Worthen said.
Rep. Ben Loring, D-Miami and also a former prosecutor, said the bill could result in defendants giving up their right to a pre-sentence investigation, which could result in harsher sentences.
Frix stressed the bill left the decision of whether a judge or jury would set the sentence to the defendant. If a judge sets the sentence, he added, it creates the possibility of alternatives that a jury would not be able to consider, such as probation.
The bill received a do pass recommendation as amended. The amendment, by Chair Chris Kannady, clarifies the opportunity for the defendant to choose whether the judge or jury sets the sentence.
The committee also gave a do pass recommendation to HB2273, by Rep. Josh West, R-Grove. The bill establishes legislative intent that the Pardon and Parole Board or Governor consider parole to be an essential public safety mechanism used to incentivize compliance in programming and treatment in prison to provide supervision upon release. The bill requires the Board to state on record the reason for denying parole and requires the Board to suggest a course of remediation. It requires parole eligibility for consecutive sentences to be determined by combining sentences. The bill allows every offender on felony probation to earn discharge credits for compliance to allow for early termination of sentence. The bill requires the Department of Corrections and the Board to establish rules and regulations for the provisions of the act.
West said one of the purposes of incarceration is rehabilitation and the knowing the reason for the denial of parole could help in the process. West was asked whether the bill impacted the length of sentences or the process by which an offender is considered for parole. He said it did not.
The committee also gave a do pass recommendation to a bill adding an offense to the list of crimes for which an offender must serve at least 85 percent of their sentence. The committee substitute for (CS) HB1056, by Rep. Marcus McEntire, R-Duncan, expands the list of crimes that a person, if convicted, must serve at least 85 percent of their imposed sentence to include assault and battery with intent to cause great bodily harm by strangulation or attempted strangulation.
The committee substitute places the offense on two lists of offenses for which offenders must serve at least 85 percent of the sentence.
McEntire said the idea for the legislation was brought to him by a constituent. He said he was surprised to learn the offense was not already on the list of 85 percent crimes.
Rep. Jason Lowe, D-Oklahoma City, asked why McEntire wanted to add another crime to the 85 percent list. "We need to put people we are scared of in prison, not people we are mad at," he said.
McEntire added, "These are the type of characters that need to be in jail...I agree we need to be smart on crime, but we are being dumb on domestic violence."
West's HB2271 also received a do pass recommendation from the committee. The bill modifies situations in which mental injury or illness is a compensable injury to include a police officer, firefighter, emergency medical technician or other emergency medical technician who is among the first to arrive at the scene of an emergency.
Kannady noted the bill would result in a significant change in the treatment of mental injuries and illnesses with the workers' compensation system. He took issue with a flyer from the State Chamber that suggested the bill would undermine the workers' compensation system.
"I find it disturbing that there is still a stigma associated with (mental injury and illness) in 2019 and that they would come out with that," said West.
West said he hoped the bill would encourage those with mental injuries and illness to seek help.

Stitt names Buck human services secretary, Prater tax commissioner

Tyler Talley, eCapitol

Gov. Kevin Stitt has named Steve Buck as his secretary of human services and early childhood initiatives and Charles Prater as the next commissioner of the Oklahoma Tax Commission.
Buck's appointment was in an executive order issued Wednesday. Prater's appointment came in an executive order Thursday.
Buck currently serves as executive director of the Office of Juvenile Affairs (OJA) and previously served as former Gov. Mary Fallin's Secretary of Health and Human Services.
Stitt announced in January that what previously had been the secretary of health and human services also would be split in two, creating a secretary of health and mental health and a secretary of human services and early childhood initiatives. Stitt has not yet named the individual who will hold secretary of health and mental health post.
Buck's appointment by Stitt makes him the first member of Fallin's cabinet to be appointed to a position in the Stitt administration. Stitt also retained Rusty Rhoades, Commissioner of Public Safety, and Adjutant General Mike Thompson.
Prater will succeed Tom Kemp at the Oklahoma Tax Commission.
"Charles Prater has built a successful career in accounting and finance, and his knowledge and expertise will serve Oklahoma well as we work toward greater transparency and accountability in state government," said Stitt.
"It is an absolute honor to be nominated as a commissioner to the Oklahoma Tax Commission by Gov. Stitt," said Prater. "It will be my privilege and duty to serve the citizens of Oklahoma, the governor and his staff, and our Legislators in this capacity. I will work hard every day alongside the governor to help make Oklahoma a top ten state."
Prater currently serves as the President and CEO at Assurance Resource Company (ARC). A certified public accountant, Prater has over 35 years of private sector experience in public accounting and as an executive officer and board member in a publicly-held regulated financial services company, receiverships, insurance arbitration, tax and strategic planning and audits. In addition to working at ARC, Prater has served as the Chief Financial Officer for Neuroscience Specialists and Compone Services, LTD, and the Vice President of UICI and CEO of their Insurance Subsidiaries.
Prater sought the Republican nomination for state auditor and inspector in 2018. He lost in August's primary runoff to Cindy Byrd, who won November's general election and was sworn into office, along with Stitt, one month ago.

Senate adopts Joint Rules, approves three bills

Shawn Ashley, eCapitol

The Senate adopted the Joint Rules by which it and the House will operate during the 57th Legislature and approved three bills.
SCR0002, by Sen. Greg Treat, R-Oklahoma City and Rep. Charles McCall, R-Atoka, which establishes Joint Rules of the 57th Legislature, was adopted on a voice vote with no objections. Senate Majority Floor Leader said the rules are the same as those under which the two chambers operated during the 56th Legislature, except the deadlines had been updated to reflect those for 2019 and 2020. The Senate approved the following bills without discussion or debate:
* SB0004, by Sen. Dewayne Pemberton, R-Muskogee, and Rep. Kevin McDugle, R-Broken Arrow, designates the second Saturday of December as "A Day of Remembrance," and authorizes and requests the governor to issue a proclamation commemorating the day and honoring soldiers buried at the Fort Gibson National Cemetery and the Fort Sill National Cemetery. It provides holiday wreaths will be placed on the graves of those soldiers in remembrance of their service and to show respect during the holiday season on or before the second Saturday in December. The bill passed 46-0.
* SB0115, by Sen. Micheal Bergstrom, R-Adair, it expands the airline/railroad alcoholic beverage license to include commercial vessels operating solely on the state's waterways. It requires the commercial vessels purchase alcoholic beverages from the holder of a wholesaler license or beer distributor license and that they will not be exempt from the excise tax. The bill and its emergency clause passed 43-3.
* SB0295, with title restored, by Sen. Chuck Hall, R-Perry and Rep. Garry Mize, R-Edmond, requires all bonds issued to have on the backs the certificate required by Article X, Section 29 of the Oklahoma Constitution. It requires bonds and any bonds or other obligations issued by the Oklahoma Capitol Improvement Authority to be submitted to the Attorney General of Oklahoma for examination. It requires bonds approved by the Attorney General to be prima facie valid and binding obligations according to their terms. It repeals language related to the certificate of regularity and incontestability of bonds. The bill passed 46-0.
The gallery was full during Tuesday's floor session, filled mostly with representatives of Free the States, an abortion abolitionist group that supports the passage of SB0013. The bill, by Sen. Joseph Silk, R-Broken Bow, creates the Abolition of Abortion in Oklahoma Act.
The Senate will reconvene Tuesday at 1:30 p.m.
SB0013 states it is the intent of the Legislature to provide to unborn children the equal protection of the laws of this state; to establish that a living human child, from the moment of fertilization upon the fusion of a human spermatozoon with a human ovum, is entitled to the same rights, powers, privileges, justice and protections as are secured or granted by the laws of this state to any other human person; and to treat as void and of no effect any and all federal statutes, regulations, executive orders and court rulings, which would deprive an unborn child of the right to life. The bill removes exemptions from court actions acts which cause the death of an unborn child if those acts were committed during a legal abortion to which the pregnant woman consented or acts which are committed pursuant to the usual and customary standards of medical practice during diagnostic testing or therapeutic treatment. It requires district attorneys to ensure the enforcement of certain criminal statutes related to acts punishable in a foreign jurisdiction in regards to abortion regardless of any contrary or conflicting federal statutes, regulations, executive orders, or court decisions. The bill removes exemptions from criminal prosecution acts which cause the death of an unborn child if those acts were committed during a legal abortion to which the pregnant woman consented and acts which are committed pursuant to usual and customary standards of medical practice during diagnostic testing or therapeutic treatment. It prohibits the mother of the unborn child be prosecuted for causing the death of the unborn child unless the mother has committed a crime that caused the death of the unborn child. The bill defines the term "abortion" to mean the act of using or prescribing an instrument, drug, medicine or any other substance, device or means with the intent to cause the death of an unborn child. It defines the term "unborn child" to mean the unborn offspring of human beings from the moment of fertilization, through pregnancy, and until live birth, including the developmental stages of human conceptus, zygote, morula, blastocyst, embryo and fetus. It defines the term "fertilization to mean the fusion of a human spermatozoon with a human ovum. It adds acts which cause the death of an unborn child during an abortion to the definition of the term "homicide." It removes language that permits only physicians to perform abortions. It provides there will be no cause of action under the Genetic Counseling Licensure Act against any person for failure to mention, discuss, suggest, propose, recommend or refer for abortion and removes the exception from the exemption for instances in which an abortion is necessary to protect the life of the mother. It removes the term "abortion" from the list of procedures listed in the definition of the term "hospital." It removes an abortion from the list of medical procedures upon which an employer cannot discriminate. The bill removes a reference to counseling for abortion from the definition of the term "health services." It requires the attorney general to monitor the enforcement of certain criminal statutes related to acts punishable in a foreign jurisdiction in regards to abortion regardless of any contrary or conflicting federal statutes, regulations, executive orders, or court decisions and requires the attorney general to direct state agencies to enforce those laws regardless of any contrary or conflicting federal statutes, regulations, executive orders, or court decisions. The bill provides that any federal statute, regulation, executive order or court decision that purports to supersede, stay or overrule the act to be in violation of the Oklahoma Constitution and the Constitution of the United States of America and therefore void. The bill prohibits the State of Oklahoma, its political subdivisions, and agents thereof from entering an appearance, special or otherwise, in any federal suit challenging the act. It declares the provisions of the act inseverable. The bill repeals language providing for State Board of Medical Licensure and Supervision review of partial-birth abortions; language regarding procuring the destruction of a quick child; and language related to procuring and submitting to or soliciting an abortion. It repeals language concerning the regulation of Mifepristone RU-486 and abortion-inducing drugs. The bill repeals various sections of law establishing the requirements and procedures for legal abortions.

Have a good week. Give me a call at 918.671.6860 if I can be of help in any way.