ACLU End-of-Session 2006 Legislative Review

            It was a busy year at the statehouse for civil liberties issues. Here are highlights; click the links for details.

• Civil commitment defeated. Calls for committing sexual and violent offenders to institutions after they had served out their jail sentences were heard before the session began. The effort, strongly opposed by the ACLU, was defeated. Sentences for sex offenders were toughened, however, and the Web sex offender registry expanded.

• Death penalty shunned. Following the federal Donald Fell trial last year, death penalty supporters announced they would push to reinstitute capital punishment for state convictions. A bill was introduced, but it was never considered.

• Public records law strengthened. Last year the Douglas administration asserted a “deliberative process privilege” in refusing to turn over state documents requested by citizens, state workers, and advocacy organizations. An “open government” bill, dismissing the state’s assertion, was passed with support of a broad coalition of groups, including the ACLU.

• Opt-out rights clarified. Schools are required by federal law to turn over student contact information to military recruiters – unless families and students “opt out”. A new law establishes the rights of students to opt “out” of receiving recruitment materials from the military, while opting “in” to receive materials from colleges. Families must be informed of other privacy rights.

• Alien notification required. Courts are now required to advise aliens of the consequences of pleading guilty to a criminal offense. (Consequences can include deportation.)

• SLAPP suits challenged. Citizens’ participation in public affairs is sometimes chilled by the filing of a SLAPP suit (Strategic Litigation Against Public Participation) against them. A new law allows courts to order the “striking” of such suits.

• No shackling of kids. Children transported while in state custody to medical facilities or other institutions will no longer be routinely shackled.

• Prison sex exploitation outlawed. Vermont has been the only state in the nation not to have a statute prohibiting sexual contact between guards and prison inmates. For a number of years, human rights and civil liberties groups have called for a statute to make such contact illegal. Finally, this year, a bill was developed and passed.

• Free expression of gender identity. Discrimination based on a person’s gender identity or expression is outlawed. This protection had not existed in previous laws on harassment and discrimination. (NOTE: Gov. James Douglas has vetoed this bill.)

• Emergency contraception. Certified pharmacists can dispense the “EC” or “Plan B” pill to women without a prescription. The new statute puts Vermont in the forefront of reproductive rights legislation.

• Prescription drug monitoring program limited. A new statewide electronic database of prescriptions filled in Vermont pharmacies will focus on medical, not law enforcement, purposes.

• “Meth” bill requires evidence of criminality for prosecution. A federal push led to new requirements when purchasing cold and allergy medicines containing “precursor” drugs that can be used to make methamphetamine. Possession alone of the medicines will not be evidence of misuse, however.

• Employer access to criminal records broadened. Attempts have been made in the past to broaden access to criminal records. This year those attempts succeeded, spurred in part by the financial support the broader access will provide the Vermont Crime Information Center.

• Picketing at funerals prohibited. Vermont legislators signed on to national efforts to try to thwart anti-gay picketing at military funerals. The language of the ban is problematic, but it relies mainly on existing disorderly conduct and disturbing the peace statutes for guidance.

• Changes to riot act fail. Law enforcement sought broader authority to enforce the state’s 200-year-old-plus riot statute. The effort failed.

• Death with dignity bill reworked, gains committee vote. Following a favorable U.S Supreme Court decision, there was hope a bill could come to the floor of either chamber this session. While a House Committee considered a new bill, the bill failed a committee vote for reporting to the full House.

• “No contact” with victims or potential witnesses clarified. Language was inserted to ensure that a change in stalking laws could not be read as preventing defendants and their lawyers from preparing an adequate defense in stalking-related cases.

• Limits of eminent domain clarified. Protections were added so that property cannot be taken if the primary purpose is economic development.

• Tax changes endorsed. Local option tax authority for some towns was extended, and Tax Increment Financing (TIF) districts were authorized.

            We were involved in each of these issues, in varying ways – from leading on the issue and forming coalitions, to working with others through other coalitions, to giving testimony before committees, to providing background information, to strategizing.

            Below are more detailed narratives on each of the issues listed above.

       Civil commitment defeated (H. 856). Calls for committing sexual and violent offenders to institutions after they had served out their jail sentences were heard before the session began. The effort, strongly opposed by the ACLU, was defeated. Sentences for sex offenders were toughened, however, and the Web sex offender registry expanded.

      Anti-crime measures are often political favorites. In Vermont, it’s harder to make crime such a big issue since our crime rates are low. However, sex crimes – even the release of someone who offended years ago – garners wide public attention. Both years of the biennium were suffused with anti-sex crime measures. Last year a “safe communities” bill was pushed. This year it was a “sexual violence prevention act.” Both bills circled around the issue pushed hard by the Gov. Douglas administration – civil commitment of sex and violent offenders. Such civil commitment systems have been started in about 15 states, and the U.S. Supreme Court has given them a constitutional OK (on narrow votes). But a Vermont legislative sex offender study committee argued against them, and extensive hearings last summer by the House Judiciary Committee similarly rejected them.

      The political pressure to “do something” grew following the Judge Edward Cashman decision in the Mark Hullet case. The House’s “sexual violence prevention act” increased funds for special sex crime investigation units, and prevention efforts. Sentences were stiffened, including establishment of “indeterminate” sentences in certain cases. These indeterminate sentences are not meant to keep someone in prison forever (as civil commitment effectively does) but rather to act as a deterrent to an offender who is released after serving a minimum number of years. If the individual re-offends, s/he can be hauled back into prison to serve more jail time.

      When the bill crossed to the Senate, senators wanted tougher action. They urged mandatory minimum sentences, along with expansion of the internet sex offender registry. The mandatory minimums became the focal point in conference committee discussions between the two bodies. In the end, agreement was reached on one “true” mandatory minimum (for aggravated sexual assault, five years), and “presumptive” mandatory minimums were imposed for two other crimes (lewd and lascivious conduct with a child, second and subsequent offenses). “Presumptive” minimums mean the sentence must carry a specified minimum jail term unless the judge explains in writing why a lighter sentence is appropriate.

      The irony of the passage of H. 856 may be its undermining of a bill passed last year, to stem the ballooning Corrections Department budget and reduce prison overcrowding. As H. 856 was nearing final passage, the Corrections commissioner warned legislators that mandatory minimums could mean a substantial increase in the state’s prison population, at a substantial additional cost. That’s exactly the opposite outcome sought by a gubernatorial prison overcrowding commission in 2004. H. 856 includes additional money for GPS monitoring; the goal is to release nonviolent offenders into the community, freeing up prison space. Still, Corrections spending is troubling. Twenty years ago, 4 percent of the state budget went to Corrections; now, the figure is 10 percent.

            Death penalty shunned (H. 830). Following the federal Donald Fell trial last year, death penalty supporters announced they would push to reinstitute capital punishment for state convictions. A bill was introduced, but it was never considered.

            Rep. Duncan Kilmartin was very public about his desire to bring capital punishment back to Vermont, after its abolition nearly 20 years ago. Kilmartin seemed to be working on what some label a “perfect” death penalty law – a law that addresses all the constitutional concerns that have been raised in the past half-century.

            The bill barely made the deadline for the filing of new bills, and once introduced it stayed on the House Judiciary Committee wall. That committee spent nearly its entire first month on the sexual violence prevention act. That bill alone raised such serious, constitutional issues that no one showed any interest in taking up the death penalty issue as well. No further efforts to move the bill – through a floor amendment, for example – were attempted. To us that seemed a strong message that there is no legislative interest in reinstituting capital punishment in Vermont.

            Public records law strengthened (H. 615). Last year the Douglas administration asserted a “deliberative process privilege” in refusing to turn over state documents requested by citizens, state workers, and advocacy organizations. An “open government” bill, dismissing the state’s assertion, was passed with support of a broad coalition of groups, including the ACLU.

      This issue became very contentious as testimony was heard on the bill and a public hearing held. However, as the bill continued through the legislative process, support grew. The Senate even added a study of existing public records exemptions. These exemptions have grown like topsy and now total more than 150. The governor initially hinted he might veto the bill. In the end, however, he signed it – albeit quietly in his office. We feel that increasingly, government has tried to keep what is the business of the public out of the public eye. This law makes that more difficult – although recent news stories report that the administration is still dragging its heels on releasing documents in an environmental case.

            Opt-out rights clarified (H. 538). Schools are required by federal law to turn over student contact information to military recruiters – unless families and students “opt-out”. A new law establishes the rights of students to opt “out” of receiving recruitment materials from the military, while opting “in” to receive materials from colleges. Families must be informed of other privacy rights.

      Worry had been expressed by parents, the ACLU and other groups that schools had not been telling families of their right to opt out of receiving recruitment materials from the military. We also learned that some schools were telling families of this right, but then also insisting that students who opt out of receiving military recruitment information also had to opt out of receiving information from colleges -- in other words, families didn’t have separate opt-out rights for military recruiters and college recruiters. H. 538 states that families do have separate opt-out rights, and that schools must annually inform families of these rights. Building on this requirement, legislators added language that the state Department of Education must annually develop a list of notices schools must provide families. A further detail: The bill defines “secondary student” as a student in Grades 9-12. That means recruiters can’t ask for contact information for younger students – as recruiters have asked some schools.

       Alien notification required (S. 182). Courts are now required to advise aliens of the consequences of pleading guilty to a criminal offense. (Consequences can include deportation.)

      This bill arose from situations where an alien in the country (legally or not) may not realize the consequences of pleading guilty (or no contest) to a criminal charge. (In some cases, a conviction can lead to deportation.) The law simply requires a judge to tell a defendant that “admitting to facts sufficient to warrant a finding of guilt or pleading guilty or nolo contendere to a crime may lead to your deportation and could prevent you from becoming a United States citizen.”

       SLAPP suits challenged (S. 103). Citizens’ participation in public affairs is sometimes chilled by the filing of a SLAPP suit (Strategic Litigation Against Public Participation) against them. A new law allows courts to order the “striking” of such suits.

      SLAPP suits are usually brought in private-party disagreements. They are typically expensive to defend, and can cause a good deal of distress to citizens who are simply trying to exercise basic speech rights and to participate in government affairs. A number of states already have laws restricting SLAPP suits. What prompted the current interest in Vermont was a case in Barnard where a wealthy landowner felt certain residents in town were allied against his plans to develop his property. The landowner filed a SLAPP suit that effectively silenced the neighbors.

      The new law allows defendants in a SLAPP suit to go to court and ask for a “motion to strike.” The judge holds a hearing and makes a determination whether the suit can continue, or be “struck.” The motion is granted UNLESS “ (A) the defendant’s exercise of his or her right to freedom of speech and to petition was devoid of any reasonable factual support or any arguable basis in law; and (B) the defendant’s acts caused actual injury to the plaintiff.” The judge’s decision can be appealed. Costs and attorney’s fees are awarded to the defendant(s) if the motion is granted. If the court denies the motion and finds the motion to be frivolous or intended solely to cause unnecessary delay, the court awards costs and reasonable attorney’s fees to the plaintiff(s).

      We think the bill is an important tool in ensuring ordinary citizens can continue to participate in public affairs – an important right -- without fear of being sued.

       No shackling of kids (H. 306). Children transported while in state custody to medical facilities or other institutions will no longer be routinely shackled.

            This bill addresses the use of leg irons and handcuffs on children who are being transported while under state care. Many other states have found this practice to be barbaric, and have prohibited it.

      The use in Vermont of so-called “mechanical restraints” on children was highlighted last summer when a 10-year-old autistic child was driven from Rutland to Brattleboro in the back of a sheriff’s car in handcuffs and leg irons – without any determination that he represented a danger to anyone. The new law clarifies that such restraints are to be used only when absolutely necessary to ensure a child’s health or safety, and then only the “least restrictive” means of restraint can be used. The law also requires annual reporting of how often restraints are used.

       Prison sex exploitation outlawed (S. 256). Vermont has been the only state in the nation not to have a statute prohibiting sexual contact between guards and prison inmates. For a number of years, human rights and civil liberties groups have called for a statute to make such contact illegal. Finally, this year, a bill was developed and passed.

      Prohibited are sexual acts between inmates (or released offenders) and prison guards, contractors, probation or parole officers who are supervising the inmate. The bill stalled a bit towards the end of the session as other provisions unrelated to prison rape were added, but it passed on the penultimate day of the session after these provisions were dropped.

            Emergency contraception (H. 237). Certified pharmacists can dispense the “EC” or “Plan B” pill to women without a prescription. The new statute puts Vermont in the forefront of reproductive rights legislation.

       This bill was considered in the House last year, and for awhile seemed forgotten. But the Senate picked up the ball this spring, and passed it on strong majorities in committee and on the floor. Support may actually have strengthened in reaction to efforts at some town meetings to vote on “parental notification” advisories.

       Note that the “Plan B” pill is NOT the RU-486 pill, which has become controversial because of reported heightened health risks.

       Free expression of gender identity (H. 865). Discrimination based on a person’s gender identity or expression is outlawed. (NOTE: Gov. James Douglas has vetoed this bill.)

            This law adds “ gender identity or expression” to the list of classes protected from discrimination (the other classes are “race, color, creed, religion, age, disability, sex, sexual orientation, or national origin”). The term “gender identity or expression” is defined as “an individual’s actual or perceived gender-related identity, appearance, expression, or behavior, regardless of the individual’s assigned sex at birth.”

            There were charges that this bill was rammed quickly through the House, without an opportunity for opponents to testify. The Senate rectified any errors that might have been made in the House’s consideration but concurred with the House view that the bill was necessary.

            Most of those speaking in favor of the bill were transgendered individuals, and they told distressing stories of discrimination. Doubters and opponents argued their points on religious grounds, as well as on the reasoning that courts could use the classes of “sex” and “sexual orientation” to extend protections to transgendered individuals. In the end, the prevailing view was that specific protections were needed in Vermont law.

       Prescription drug monitoring program limited (S. 90). A new statewide electronic database of prescriptions filled in Vermont pharmacies will focus on medical, not law enforcement, purposes.

      We followed the prescription drug monitoring proposal since it was first introduced as a bill last year. As soon as we realized privacy concerns weren’t being given adequate attention, we raised them. We were especially concerned because of an existing Vermont law that gives law enforcement access to anyone's prescription records, at any pharmacy in Vermont, without a warrant or subpoena. That law has been in force for more than 30 years and has withstood constitutional challenges, the last a case in 1992.

            The administration worked hard to have this bill pass, in its original form. At the end of the 2005 session, there was even an effort to attach it – with little testimony -- to the broad health care reform bill. We raised privacy issues, and the proposal was kept aside for further study. We testified this fall when the Senate Judiciary Committee held a special off-session hearing on the bill. A direct prohibition of law enforcement access to the database was added to the bill. A study of the existing pharmacy access law to “address medical record privacy concerns that may be raised by permitting law enforcement unfettered access to pharmacy records” was also mandated.

      In the House, the bill was considered by the House Human Services Committee. That committee spent a lot of time listening to patients, physicians, and health officials about the reasons why an electronic database for Schedule II-IV drugs (those drugs that can be addictive) would serve sound medical purposes. Law enforcement testified it, too, was most interested in helping people get treatment for drug problems – not simply throw them in jail. Privacy issues were debated at great length, and protections added.

      In the final version of the bill, the only access that law enforcement will have to database records is through a court order (which they are already authorized to seek), through referrals by the professional licensing boards that oversee physicians and pharmacists, or if the commissioner of health (after consultation “with at least one of the patient’s health care providers”) feels a “serious and imminent threat to a person or the public” can be avoided through disclosure.

       We view S. 90 as one of the most important bills to come out of this legislative session. It was one of the first times the Legislature grappled with medical records privacy in the digital, post-HIPAA age. “HIPAA” is the federal “Health Information Portability and Access Act.” The law is meant to protect the privacy of our medical records while allowing some access to ensure effective and consistent medical treatment. But as the legislative committees reviewing S. 90 found out, accomplishing this is very, very hard to do. We believe the final bill is a solid, respectable effort to ensure that the monitoring program has a health and not a law enforcement focus.

       “Meth” bill requires evidence of criminality for prosecution (H.480). A federal push led to new requirements when purchasing cold and allergy medicines containing “precursor” drugs that can be used to make methamphetamine. Possession alone of the medicines will not be evidence of misuse, however.

       This bill started as a somewhat draconian measureto regulate the sale of over-the-counter medications (like Sudafed) that contain ephedrine, pseudoephedrine, or phenylpropanolamne. Among the provisions was a “permissive inference” that anyone who had 9 grams of these chemicals in pill form possessed them for criminal intent (that’s slightly more than three packs of the allergy/cold medicine that I get -- 48-count, 60-mg tablets). You’d have to prove your innocence, in other words, to avoid a felony that could result in a five-year jail sentence and/or a $100,000 fine. Along the way to purchasing these legal medicines, you’d have to sign an electronic log whose information would be forwarded to the Vermont Crime Information Center.

       The House Human Services Committee took extensive testimony on this bill in an effort to understand the health issues as well as law enforcement issues involved. The bill that emerged from the House looked at the situation mainly from a health perspective (it did not, for example, contain the “permissive inference”). Meanwhile, a federal “meth” bill was passed, raising the question whether Vermont even needed a law of its own. Vermont law enforcement argued that federal agents and prosecutors would only go after big-time offenders; Vermont needed its own law so state and local officers could work on smaller cases on the state level. The Senate agreed. The final bill was close to the federal law.

            Basically, here’s how the federal and state laws will work when applied in tandem. Possession of less than 9 grams of ephedrine, pseudoephedrine, or phenylpropanolamne with intent to make meth is a misdemeanor punishable by up to a year in jail, a $2,000 fine, or both. Possession of 9 or more grams with intent to make meth is a felony punishable by up to five years in jail, a $100,000 fine, or both. Medicine containing the drugs will be kept behind pharmacy counters or in a locked cabinet. Purchasers will need to sign a log book when buying the medicines, and after Sept. 1 a photo ID will have to be presented to verify identification. Daily sales will be limited to no more than 3.6 grams of the “precursor” drugs.

       Employer access to criminal records broadened. (S. 262). Attempts have been made in the past to broaden access to criminal records. This year those attempts succeeded, spurred in part by the financial support the broader access will provide the Vermont Crime Information Center.

      S. 262 allows nearly all employers access to the Vermont Crime Information Center’s database. Previously, only schools and other entities serving vulnerable populations could access this information.

      Bills such as this present a difficult balancing of privacy rights and the right of access to public documents. The ACLU believes public records (such as court records) should be available to the public, but we also believe records hold a power that demand they be accurate and not misused.

      In committee testimony we argued for protections that ensure that the accuracy of records can be verified and that the information will not be misused. Anyone who is the subject of an employer’s criminal background check will be given a copy of the record (if one exists). Additionally, anyone can request a copy of his or her own record; if none exists, the person will receive a statement saying so.

      The use of aliases in Vermont is not uncommon. Drivers’ licenses without photo IDs can sometimes lead to false identifications. So it’s possible that soon we shall all be encouraged to check to see if VCIC has any records on us, much like we’re now encouraged to periodically check our credit reports.

      The law includes a study committee to review general public access to criminal records. The bill also includes a freeze on court plans to allow Web access to court criminal records, for a fee. Concerns about consistency, reliability, and privacy interests have been expressed. The VCIC records, on the other hand, are considered “clean.” VCIC will collect a fee each time an employee requests a check of someone’s record, providing important revenue to the center. The additional revenue will also allow the center to cut fees for schools and other service providers.

       Picketing at funerals prohibited (H. 718). Legislators signed on to national efforts to try to thwart anti-gay picketing at military funerals. The language of the ban is problematic, but it relies mainly on existing disorderly conduct and disturbing the peace statutes for guidance.

            This bill was driven by emotion rather than principle. It was barely kept alive, surviving to passage only as an amendment to two different bills – the last a driving-while-license-suspended motor vehicle bill. The anti-protest bill (and others like it in other state legislatures) was spawned by threats from members of the Westboro, Kansas, Baptist Church to protest at military funerals. The Westboro church people have been going around the country to military funerals saying soldiers’ deaths are God’s retribution on the military for allowing gays to join the ranks.

       The bill as introduced was clearly unconstitutional. It would have banned a “protest, demonstration, riot or other similar activity” within 500 feet of a church, cemetery, or mortuary two hours before and two hours after a funeral. We argued that existing state statutes could be used to arrest any unruly picketers, and urged legislators not to, in essence, single out specific demonstrators whose message may be offensive. In the end, lawmakers created a new statute within the “breach of the peace” section of state law, relying on language from existing state law but focusing on picketing at funerals. Legislators also narrowed the disruptive protest zone (from 500 feet to 100 feet), and the time span. The pertinent language is: “No person shall disturb or attempt to disturb a funeral service by engaging in picketing within 100 feet of the service within one hour prior to and two hours following the publicly announced time of the commencement of the service.”

       The problematic language is obviously “disturb or attempt to disturb.” Is “attempt to disturb” the wearing of a lapel pin with the words “No war”? Or a pin with “Leviticus 18:22” (which is the oft-cited Biblical passage denouncing homosexuality)? While “disturb” can, arguably, be defined objectively, “attempt to disturb” is a subjective standard that invites viewpoint discrimination. Court cases are beginning to pop up around the country on these bans. Whether the Vermont ban can stand a constitutional challenge will most likely depend on the specific facts of the case.

            Changes to riot act fail (S. 50). Law enforcement sought broader authority to enforce the state’s 200-year-old-plus riot statute. The effort failed.

            The broader authority was originally sought by the chief of police at the University of Vermont. Following the Red Sox “riot” of two years ago, he wanted the authority to declare a riot (currently only a district judge, sheriff, deputy sheriff or constable has the authority to do so). Taking notice of the bill, other law enforcement officers asked that they be included on the list of those with such authority.

      The state’s riot act is one of the oldest pieces of law on the state’s books. In reviewing it, the Senate determined that some basic protections were needed to guarantee citizens’ constitutional liberties. We felt that the riot act should be scrapped, because its premise is that people can be arrested for their presence somewhere, rather than for any actions they take. Most states have, in fact, moved toward revising disturbing the peace or disorderly conduct statutes to address the sorts of activities covered by riot acts.

      When the House received the bill, it decided to return to the language of the original bill, stripping out the Senate’s language protecting journalists and other innocent bystanders. It also stripped out Senate language that specified that to be arrested you had to be present AND “engaged in the unlawful and riotous conduct giving rise to the proclamation.”

            The two versions of the bill were never reconciled, and the bill died.

       Death with dignity bill reworked, gains committee vote. Following a favorable U.S Supreme Court decision, there was hope a bill could come to the floor of either chamber this session. While a House Committee considered a new bill, the bill failed a committee vote for reporting to the full House. (H. 168).

      The favorable court case, regarding the Oregon death with dignity law, came down in late winter. This encouraged supporters. A rewrite sought to address questions that had been raised in previous discussions and hearings. The House Human Services Committee took up the bill towards the end of the session. This prompted criticism that not enough time was being devoted to thoughtful consideration of the issue; “process” was not being respected. Supporters argued there had been sufficient debate on the issue to move forward. No one had any illusions that a bill would pass this year and become law; rather, the goal was a committee vote that could serve as sign the Legislature was committed to addressing the issue and encouraging continued public debate. Those skeptical of the bill suggested a statewide referendum on the issue.

       In the end, a committee vote was taken on the bill, but the vote was a 5-5 tie, so the bill was not reported out. End-of-life choices are clearly very, very difficult topics for legislators – or anyone else – to deal with. The ACLU believes that citizens have a fundamental, constitutional right to control their own bodies. We believe it is not government’s role to intervene in medical decisions that are properly an individual’s to make.

       “No contact” with victims or potential witnesses in certain trials clarified (S. 183). Language was inserted to ensure a change in stalking laws could not be read as preventing defendants and their lawyers from preparing an adequate defense.

       Victims’ rights advocates pushed hard this session for changes to the state’s stalking laws. They succeeded in having large sections rewritten, in an effort to provide more protections for victims. Stalking laws are difficult, however, in that the rights of defendants – particularly due process rights – must also be protected. S. 183 (a bill originally separate from H. 373, the stalking bill) expanded the power of judges to order a defendant not only not to “harass” a victim or potential witness, but also not to “contact” or “cause to be contacted” a victim or potential witness. The Office of the Defender General, the Vermont Bar Association, the Vermont Trial Lawyers Association, and the ACLU argued that this could be interpreted as barring ANY contact between the defendant and a victim or potential witness – even by the defendant’s lawyer. As S. 183 was pulled into H. 373 and discussed in conference committee, “legislative intent” language was added to ensure this wasn’t the case, and that the usual rules of criminal procedure apply.

       Limits of eminent domain clarified (S. 246). Protections were added so that land could not be taken if the primary purpose is economic development.

      Many states grappled this year with the implications of the last year’s U.S. Supreme Court case regarding seizure of homes and land in New London, Connecticut, for redevelopment purposes. Vermont already had a fairly strong provision protecting the rights of private property owners. But the Legislature felt it proper to strengthen certain provisions. S. 246 prohibits the state from exercising eminent domain rights if the primary purpose is economic development. There remains an exception for “urban renewal,” but the definition of “blighted area” was sharpened so that “No area shall be determined to be a blighted area solely or primarily because its condition and value for tax purposes are less than the condition and value projected as the result of the implementation of any state, municipal, or private redevelopment plan.”

       Tax changes endorsed (S. 122 and S. 291). Local option tax authority for some towns was extended, and Tax Increment Financing (TIF) districts were authorized.

      This is an area of concern for the ACLU because of the education tax changes required by the Brigham lawsuit and the resulting law (Act 60 of the 1997 session) that was passed by the Legislature to address education equity requirements.

      Local option taxes (adding a penny to the sales tax in a specific city or town, for example) have long been sought by municipalities. To ease the transition for some towns under Act 60, the Legislature in 1997 allowed local option taxes in a limited number of towns (those experiencing the greatest education tax increases) and only for a limited period of time (until 2007). The revenue was split so that 75 percent went to the municipality to pay for municipal expenses, and 25 percent went to the state Education Fund.

      Only a few municipalities exercised the option. However, this year, with the sunset looming, cities and towns advocates pushed for an indefinite extension of the option, and the broadening of the law to include all municipalities. In the end, the bill was attached to other measures, and details were negotiated up to the last minute. The sunset was extended for the towns that already had been authorized to levy a local tax. Broader authority to levy the tax in other towns was not granted, however.

      S. 291 allows the creation of special Tax Increment Financing districts. The districts are given special tax treatment, on the theory that without the special treatment no municipality would make the investment to develop the property in question.

       Both measures raise equity questions. The Brigham decision states clearly that a child’s educational opportunities cannot depend on the wealth of his or her individual town. Rather, children’s education is a state responsibility and all towns must have equal access to the funds necessary to give children a decent education.

      The local option tax and TIF law carve out exceptions to the statewide property tax equity established in Act 60. These are not the first “carve-outs” to the state’s tax equity system. While each may seem justified, the question is whether over time the numerous carve-outs in sum represent a serious threat to equity. The state has no comprehensive list of all the carve-outs that have been created. We think such a list is important to develop. Only then can a thoughtful analysis be made of whether education tax equity is at risk.

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