(KY) Judge Weighs Whether Lawmakers Can Revive Dead Legislation

A Kentucky judge is questioning how the state legislature passed a pension overhaul bill that prompted thousands of teachers to protest.

June 7, 2018, at 4:13 p.m.

By ADAM BEAM, Associated Press

FRANKFORT, Ky. (AP)Kentucky has lots of abandoned private sewer systems causing problems for homeowners. To fix this, a state lawmaker sponsored a bill to let local governments buy these systems, even if they are outside the government’s boundaries.

But when lawmakers gutted the 11-page sewer bill and replaced it with a 291-page overhaul of the state pension system, howls of protest echoed through the Capitol. Because the bill had technically already passed the Senate, lawmakers were able to send it to the governor’s desk in about six hours instead of the minimum five days the state Constitution requires to pass new legislation. The bill was not available for the public to read until the day after lawmakers passed it.

Lawmakers in Kentucky and state Capitols across the country routinely use this process to pass bills in the waning days of a legislative session, arguing it is sometimes the only way to pass complex and contentious legislation within the tight deadlines imposed by their state constitutions. But Thursday, a state judge questioned whether it was legal during a hearing on a lawsuit seeking to block the pension bill.

“We have a Lazarus problem here. How can you raise a bill from the dead without starting over?” Franklin Circuit Judge Phillip Shepherd said.

Thursday’s hearing in the case to nullify the pension law was the first step in a legal process that will likely end at the state Supreme Court. The question of how lawmakers pass legislation could be the main issue. Shepherd indicated as much Thursday as he spent most of his time asking questions about the process and saying he had concerns about its effects on “open and transparent legislation.”

Lawmakers have been using this process for decades. In 2015, they turned a bill about prison health care into an anti-drug bill that increased penalties for heroin dealers and directed more money toward substance abuse treatment. In 2017, lawmakers turned a bill about dog bites into one that overhauled the University of Louisville’s broad of trustees as it was in a crisis over its accreditation.

David Fleenor, an attorney for Kentucky’s legislative leaders, noted lawmakers did not pull the pension bill out of thin air. The bill had previously been Senate bill 1, which had gone through the legislative process with public hearings but had gotten bogged down in the Senate. When lawmakers finally reached agreement to pass it, they did not have enough time left to do it the usual way.

“This is a citizen legislature that is there for a very finite period of time,” said David Fleenor, an attorney for Senate President Robert Stivers. “You need a mechanism to be able to do that.”

Stephen Pitt, an attorney for Republican Gov. Matt Bevin, warned if the court ruled this process was illegal it would open the door for countless other bills to be challenged. But Democratic Attorney General Andy Beshear dismissed that as a “scare tactic.” He noted the same argument was used a few years ago in a lawsuit challenging the legislative practice of stopping the clock on the last day of the session to give lawmakers more time to pass bills. The court ruled that was illegal, and it did not result in a cascade of nullified laws.

Beshear argued the practice of gutting and replacing bills shuts out the public because the legislature moves so fast it does not give them a chance to participate.

“You call it a Lazarus situation, this is like a Walking Dead bill,” Beshear said. “You have to kill it twice.”

Teachers and other state workers packed the courtroom for Thursday’s hearing, some wearing red t-shirts that read “a pension is a promise.” Erin Grace, a 37-year-old teacher at Rockcastle County High School, said one way or another, the bill will be overturned.

“If it’s not overturned in court, we’re going to elect people that are going to reverse it as quickly as it was enacted,” she said.

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