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No. 15                                                                                           May 28, 1999

Court Says "No More Mix and Match" To General Assembly

This week, the Ohio Supreme Court threw another curve ball at its co-equal branch of government, the Ohio General Assembly. In an opinion written by former legislator, Justice Paul Pfeifer, the Court, by a 5-2 declared that Ohio's pilot program for school vouchers was unconstitutional. However, the Court did not lay its nullification at the doorstep of a separation of church and state, as opponents of the program had hoped, but on the technical grounds that the program was instituted without regard to the constitutional provision which requires all legislation to contain only one subject.

The Court, except in one small instance, held that the program, which provides vouchers to the parents of over 4,000 Cleveland school children to go to the school of their choice, including sectarian schools, met constitutional muster on issues of separation of church and state. The Court also said that the program, in its limited form, does not run counter to the state's constitutional obligation to provide a "thorough and efficient system of common schools."

However, the Court did say in the case (97-1117) that by creating the new voucher program within the state budget, the legislature violated its obligation to consider items appropriate for separate legislation in separate legislation. The Court said that this "cutting edge" legislation of a mere ten pages was stuck inside of a budget bill that was over 1,000 pages long. As such, the program constituted a "rider" which breached the constitution's requirement of separate consideration of important legislative matters.

The Court set a June 30,1999 effective date for its decision so as not to interfere with those in this school year who are making use of the voucher program.

While proponents and opponents of the voucher program expressed this week their mixed feelings about the decision to put the voucher program back into legislative play, the broader implications of the decision have yet to be sorted out.

The Senate is currently considering a two-year budget bill that was drafted by the House prior to this decision. The Court decision, while saying "Yes, the 'one-subject' rule of the Constitution does mean something and here's one example of that meaning," is still a decision that leaves a lot of grey in the picture for many pieces of legislation. That the Court picked this particular piece of legislation as a grievous example of the violation of the "one subject" rule came as a surprise to many, including some legislators who are often sticklers for the "one-subject" rule.

Prior to the decision, an objection to amending a new item into a bill based upon the 'one subject' clause of the Constitution was usually met with a glazed stare, unless someone agreed with you that the amendment was a bad one on its merits. The decision now injects in the legislative process a new credible path of caution and a new credible path for litigious challenges to laws proposed and laws already on the books.

SENATE JUDICIARY, 10 a.m., North Hearing Rm.

HB 95 PUBLIC RECORDS (Terwilleger) Awards reasonable expenses to the relator if a writ of mandamus is issued in a taxpayer's suit and authorizes a similar award plus court costs to a prevailing aggrieved person in a mandamus action under the Public Records Law. (1st Hearing)

HOUSE HEALTH, RETIREMENT & AGING, 10 a.m., Rm. 017

HB 199 ALTERNATIVE PUBLIC PENSION (Cates) Creates an alternative retirement program for public employees covered by Ohio's state retirement systems. (9th Hearing)

HOUSE ETHICS & STANDARDS, 11 a.m., Rm. 113

SB 78 PUBLIC RECORDS (Oelslager) Generally grants members of the public the option of choosing the medium in which they will receive copies of public records and requires a public office to transmit copies of a public record through the United States mail if so requested. (1st Hearing)

HOUSE PUBLIC UTILITIES: 911 SUB., 11 a.m., Rm. 018

HB 310 9-1-1 SERVICE (Mead) Provides for enhanced wireless 9-1-1, including requirements for its operation, administration, funding, and regulation and makes other changes. (3rd Hearing)

HB 152 EMERGENCY PHONE ASSESSMENT (Logan) Provides for a monthly charge not exceeding 50-cents on telephone access lines to fund the operating and equipment costs of establishing and maintaining no more than one public safety answering point of a countywide 9-1-1 system that previously lacked funding. (3rd Hearing)

HOUSE PUBLIC UTILITIES, After session, Rm. 017

SB 3 ELECTRIC DEREGULATION (Johnson) Provides for competition in retail electric service, including provisions regarding market structure, consumer protection, competitive auctioning and transition revenues; levies a kilowatt-hour excise tax on electric distribution companies; revises taxes for electric companies and rural electric companies and reduces tax assessment rates on certain electric company and rural electric company tangible personal property. (4th Hearing)

HOUSE LOCAL GOVERNMENT & TOWNSHIPS, 4 p.m., Rm. 121

HB 298 SMOKING RULES (Schuler) Requires that any orders or rules enacted by a board of health related to smoking be adopted by the legislative authority of a municipal corporation or township before those orders or rules are effective within the boundaries of that political subdivision. (4th Hearing- Possible vote)

HB 303 UNFUNDED MANDATES (Buchy) Creates the Local Government Mandates Commission and makes other changes. (3rd Hearing)

SENATE STATE & LOCAL GOVT. & VETERAN'S AFFAIRS, 4:30 p.m., South Hearing

HB 91 TOWNSHIP PARTIONING (Terwilleger) Provides that a township reduced at the request of a municipal corporation to less than 22 square miles may continue as a reduced township unless a petition is filed by the township electors and makes other changes. (1st Hearing)

HB 189 MUNICIPAL POPULATION COUNT (Taylor) Excludes persons under detention in a detention facility from persons counted to determine the population of a municipal corporation for purposes of classifying the municipal corporation as a village or a city. (2nd Hearing)

HOUSE PUBLIC UTILITIES, 8:30 a.m., Rm. 017

SB 3 ELECTRIC DEREGULATION (Johnson) Provides for competition in retail electric service, including provisions regarding market structure, consumer protection, competitive auctioning and transition revenues; levies a kilowatt-hour excise tax on electric distribution companies; revises taxes for electric companies and rural electric companies and reduces tax assessment rates on certain electric company and rural electric company tangible personal property. (5th Hearing)

SENATE WAYS & MEANS, 10 a.m., South Hearing Rm.

HB 76 LOCAL DEBT LIMIT (Brading) Exempts from the calculation of a subdivision's debt limit a specified portion of the principal amount of securities issued for permanent improvements if payments in lieu of taxes are pledged to repay those securities. (2nd Hearing)

SB 108 ESTATE TAX (Latta) Reduces the estate tax by 36% over five years and phases out the share of the estate tax paid to the state. (3rd Hearing - Possible vote)

SB 144 PERS PAYMENTS (Johnson) Requires the Public Employees Retirement System to credit interest on a member's contributions and, under certain circumstances, pay an amount of the employer contributions on the death of a member or withdrawal of a member's contributions. (For the purposes of referring to Pension Subcommittee)

HUD FUNDING/CDBG

HUD is facing particularly severe cuts. The Senate VA/HUD Appropriations Subcommittee staff has reported that they are expecting a 2000 allocation of $10 billion below this year. This would require, at a minimum, a 12 percent across-the-board cut in overall funding from this year's level for the programs under the subcommittee's jurisdiction. However, HUD is likely to see far more than a 12 percent cut in its programs. Actual program allocations will vary. The Veteran's Administration is expected to get $1.7 billion more than requested by President Clinton. NASA, the Federal Emergency Management Agency (FEMA) and the Environmental Protection Agency (EPA) are not likely to take deep cuts. Without an agreement to lift the 1997 caps, this could mean cuts up to 30 percent in all HUD programs.

The House VA/HUD Appropriations Subcommittee has been given $5.8 billion less than last year to distribute among the programs under their jurisdiction. To make matters worse, committee staff have indicated they are committed to adding back $3 billion over the President's budget request into the Veteran's Administration 2000 appropriation. This will raise the shortfall to $8.8 billion for other programs under this subcommittee's jurisdiction and will mean a 30+ percent, or $1.4 billion, cut for CDBG (figures for other programs are not yet available). Other HUD programs important to cities are expected to face similar cuts.

CALL TO ACTION: Call or arrange a meeting with your Representative(s) as soon as possible and communicate the importance to your city of full CDBG funding in 2000.

TRANSPORTATION FUNDING

The Senate Transportation Appropriations Subcommittee has approved a draft spending bill that would appropriate $12.1 billion in discretionary funding for FY 2000 for transportation. The current funding level for transportation programs is $12.3 billion. At press time for the State League Update, the House Appropriations Transportation Subcommittee had not yet finalized action on the appropriations. Of importance to cities, the Senate appropriations measure includes a provision that would revise funding authorized by TEA 21 for transit programs. Under the Senate Appropriations committee's proposal, each State would receive no more than 12.5 percent of the national total available funding for transit system operations. States with little or no transit needs would be authorized to divert these funds for highway projects. NLC opposes this provision and supports allocation based on need for transit projects, since different states have different needs.

CALL TO ACTION: Contact Senators DeWine and Voinovich and ask them to oppose the provision in the Senate Transportation Appropriations that would revise transit program funding approved in TEA 21 because that allocation should be based on the greatest need.

TAKINGS

Takings legislation is back in the form of S. 1028, the "Citizens Access to Justice Act of 1999." This bill, introduced by Senate Judiciary Committee Chair Orrin Hatch (R-UT), permits developers to challenge local zoning decisions in federal court without first requiring them to exhaust appeals at the state and local level.