Legislative Update - Friday, February 17, 2006
by Marcia Shanor
Executive Director, Wyoming Trial Lawyers Association

Friday, February 17 is the last day for bill introductions. Bills not introduced will not be considered this session. For more information on specific bills or session information go to the Legislative Services Web Site. The Equality State Policy Center is also a good site for daily updates on a wide variety of issues.

For wildlife and conservation issues check the Wyoming Conservation Voter?s web site.

Bills that may be of interest and their status are listed below.

SF 68 Unfair claims and settlements act was introduced yesterday with a 23-7 vote. The bill was assigned to the Senate Judiciary Committee and should be heard next week. SF 68, sponsored by Senators Coe, Larson, Decaria and Reps. Luthie and Berger, amends 26-13-124. The bill removes the requirement for demonstrating a pattern of general business practice when considering a person or insurance company to be engaging in an unfair practice in the business of insurance. SF 68 also provides for a third party right of action.

HB 102 - Worker's Compensation co-employee immunity failed introduction on a 37-22 vote with one excused yesterday. HB 102 was sponsored by Representatives Cohee, Illoway and Osborn and Senators Peck and Vasey. The bill would have changed the effect of the holding in the Wyoming Supreme Court decision in Bertagnolli v. Louderback, 2003 WY 50, 67 P.3rd 627 (2003). The bill would have amended 27-14-104 to provide immunity for co-employees for all workplace injuries except for those intended to cause physical harm, including but not limited to negligence, gross negligence, culpable negligence, recklessness and willful and wanton misconduct.

HB 7 - Insurance-intoxication exclusion was introduced and passed by the House Transportation Committee. The bill is on General File in the House. HB 7 is sponsored by the Joint Transportation, Highways and Military Affairs Interim Committee. This bill prohibits clauses in insurance policies which exclude coverage for losses caused by the insured?s being intoxicated or under the influence of drugs. HB 7 also repeals W.S. 26-18-126 which authorizes alcohol exclusion clauses in disability policies. The bill does not preclude an insurer from excluding coverage for any claim arising from the commission of a felony.

HB 46 - Duty to retreat was introduced with a 57-1 vote with two excused. The bill will be heard in the House Judiciary Committee on Monday morning. There are a number of groups who are concerned about the bill including the Wyoming Association of Sheriffs & Chiefs of Police, the Wyoming Coalition Against Domestic Violence & Sexual Assault and some of the prosecuting attorneys. There will be a number of changes proposed in committee.

HB 46 is sponsored by Reps Watt and Powers. It provides criminal and civil immunity to a person using force as permitted in W.S. 6-2-602 unless against a peace officer acting in the performance of his official duties. The bill also requires the court to award reasonable attorney?s fees, costs and compensation for loss of income and expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the defendant is found to be immune from prosecution. HB 46 also defines when force can and cannot be used and reckless endangering. A person pointing a firearm at or in the direction of another is guilty of reckless endangering unless it is done in defense of person or property.

SF 48 - Health care commission amendments was introduced, referred to the Senate Labor, Health and Social Services Committee and will be heard Monday morning.

SF 48 is sponsored by the Joint Labor Health and Social Services Committee. The bill extends the sunset date of the commission to 2009, expands the commission membership, grants the commission subpoena authority and requires several studies and reports. One of the studies calls for a detailed plan for one or more demonstration projects of patient safety and alternate compensation systems as recommended in the Health Care Commission?s October 2005 report. The plan is to outline operation for alternative compensation system demonstration projects and include draft legislation necessary to authorize the projects. The plan will include determination of cost and the cost should not exceed the cost of the current tort system. Compensation for those injured by avoidable adverse medical events is to be included along with providing a more favorable professional environment for attracting medical professionals. The plan is to consider making an alternative compensation system available to governmental hospitals and their employees and to provide liability coverage for the participating governmental entities. The act is effective July 1 and the plan is to be completed by November 10, 2006.

HB 9 - Workers? compensation-drug and alcohol testing was introduced, passed by the Labor Health and Social Services Committee, passed General File and is on Second Reading in the House. HB 9 sponsored by the Joint Labor, Health and Social Services Committee will provide a discount of up to 5% of the base rate for employers using a division approved drug and alcohol testing program.

HB 18 - Service of process fees sponsored was introduced and referred to the House Judiciary Committee. The bill is sponsored by Rep. Brechtel and will increase process fees from up to $20.00 to not more than $35.00.

HB 23 - Protection Orders Duration is on the list for introduction. HB 23 is sponsored by Reps. Olsen, Edwards and Sen. Larson and increases the duration of a protection order from up to three months to up to a year. The bill also allows the order to be extended repeatedly for one year periods upon motion of the petitioner and a hearing and to be subject to judicial review by request of either party.

HB 28 - Sexual assault examinations was introduced, passed by the House Judiciary Committee and is on General File today. HB 28, sponsored by Reps. Petersen, Gingery, Lunau and Quarberg and Senators Burns and Decaria, changes the medical examination requirements for a victim of sexual assault. HB 28 provides that a law enforcement agency may with the victim?s consent arrange for an examination by a licensed health care provider acting within the scope of their practice. The examination may include treatment, evidence collection and evaluation. Release of the examination results and any reports or evidence to law enforcement will not be done without the victim?s consent. The bill also adds language to 6-2-309 (e) regarding minor victims.

HB 29 - Anti-trust provisions was introduced and referred to the House Agriculture, Public Lands and Water Resources Committee. HB 29 is sponsored by the Joint Agriculture, Public Lands and Water Resources Interim Committee. This bill enhances damages recoverable for unfair business discrimination injuries suffered directly or indirectly. Any person, firm, private corporation or trade association may recover three times the actual damages, costs and reasonable attorneys? fees. HB 26 also provides that in any subsequent actions, the court may take any steps necessary to avoid duplicative recovery against a defendant.

HB 48 - Harassment, intimidation or bullying prohibition was introduced and referred to the House Education Committee. HB 48 is sponsored by Reps. Watt, Hinckley, Iekel, Robinson and Warren. The bill requires that school districts establish policies prohibiting harassment, intimidation or bullying and provides immunity for a school employee, student or volunteer reporting an incident involving harassment, intimidation or bullying.

HB 62 - Use of mobile communications while driving is still on the list for introduction. The bill, sponsored by Rep. Esquibel, prohibits the use of a cellular or satellite telephone while operating a motor vehicle unless the telephone is specifically designed to allow hands-free operation.

HB 66 Sex offender penalties failed introduction on a 36-23 vote with one excused. The bill was sponsored by the Joint Judiciary Interim Committee. HB 66 would have increased the penalty to life imprisonment without parole if a sexual offender was convicted of sexual assault of a minor and had one or more previous convictions of first, second or third degree sexual assault of a minor or the conviction of a crime that involved a victim who was under the age of sixteen years at the time of the offense and the offender was at least four years older than the victim.

HB 75 Sexual molestation of children-penalties was introduced and referred to the House Judiciary Committee. HB 75, sponsored by Reps. Pedersen, Cohee, Harvey and Hinckley and Sen. Peterson, establishes enhanced penalties for sex offenses involving victims twelve years of age or younger. The bill provides that penalties for sexual assault in the first degree will be a felony punishable by not less than 25 years or more than 50 years in prison. Second degree sexual assault will be a felony with 15-25 years in prison and third degree, a felony with 5-15 years imprisonment. This bill also increases the penalty to life imprisonment without parole if the actor is convicted of sexual assault involving a victim of twelve or younger and has one or more previous convictions of first, second or third degree sexual assault of a victim twelve years of age or younger.

HB 85 - Guardians ad litem-immunity was introduced and referred to the House Judiciary Committee. The bill, sponsored by Reps Petersen, Buchanan, Gingery and Senator Hanes, provides immunity from civil or criminal liability for a guardian ad litem while acting in the scope of duties unless false or unfactual information is knowingly or negligently reported.

HB 106 - Protection orders was introduced and referred to the House Judiciary Committee. The bill extends the period of time a protection order shall be effective from up to three months to one year. HB 106 allows either party to move to modify, terminate or extend the order and provides that the order may be extended repetitively for additional periods not to exceed one year each.

HB 173 Medical liability insurance assistance is on the list for introduction in the House. The bill is sponsored by Reps. Osborn, Cohee, Harvey, Iekel, Lubnau, Meuli and Senators Barrasso, Jennings, Massie, Ross and Sessions. HB 173 provides for assistance of 25% of the cost of a physician?s medical malpractice insurance premium up to $35,000 per year. To be eligible to receive assistance, a physician must be licensed, in full or part-time practice, maintain medical malpractice insurance with minimum limits of $1,000,000 and $3,000,000 and must sign a contract to provide medical care to any Wyoming resident who is qualified under the Wyoming Medical Assistance and Services Act or the Wyoming Uninsured Child Health Insurance Program.

SF 4 - Public record-electronic mail was introduced, passed by the Senate Rules Committee, passed Committee of the Whole and is on Second Reading in the Senate Friday.

SF 4, sponsored by the Management Council, defines transitory electronic mail and provides for deletion of transitory electronic mail by the official or employee of a public office sender or recipient. Deletion must occur under the supervision of the official custodian of public records.

SF 5 - Privileged communications was also introduced, passed by the Senate Rules Committee, passed Committee of the Whole and is on Second Reading in the Senate today.

SF 5, sponsored by the Management Council, provides that certain specified communications between a legislator and legislative staff be deemed confidential and privileged. Unless the privilege is waived by the individual legislator involved the following will be deemed confidential and privileged: requests for research or advice on a legislative issue, requests for drafting legislation or amendments to legislation, any matter under consideration by a legislative committee other than communications made publicly to legislative staff in a public meeting of a committee or development of legislator?s position on legislation or discussion of any matter arising out of or relating to the deliberative process of the legislator. All documents and electronic records including correspondence, email, notes, memoranda and preliminary or final drafts not yet introduced will be confidential. Communications between a legislator and a contractor or consultant retained by the legislature and private communications of or to a legislator in his official capacity including communications with constituents will also be considered confidential.

SF 36 - Open containers of alcohol was introduced, passed by the Senate Judiciary Committee and is on General File in the Senate today. The bill is sponsored by Senator Ross and Rep. Hinckley and provides that alcoholic beverages shall not be transported in a moving motor vehicle unless in the original unopened package, in the trunk or any other outside compartment of the vehicle, in the back of a pickup truck, in the rear compartment of a vehicle not equipped with a trunk, in a cabinet or compartment of a recreational vehicle that is locked and not readily accessible to the driver. The bill excludes passengers on a chartered bus or chartered limousine.

SF 55 - Qualifications of circuit court magistrates was introduced and referred to the Senate Judiciary Committee. The bill, sponsored by Senator Hanes, adds qualifications for part-time magistrates of the circuit court requiring that a part-time magistrate be a resident of the district within which the circuit court is located.

SF 76 - Drug Court Amendments failed introduction. SF 76, sponsored by the Joint Labor, Health and Social Services Committee would have expanded the jurisdiction of drug courts to address other social problems including domestic violence, child abuse and neglect, mental health disorders and other social problems. The bill provided that each court would have had a choice of which functions it would undertake.

SF 99 - Wyoming Structured Settlement Protection Act is on the list to be introduced. SF 99 is sponsored by Senator Ross and Rep. Luthi and specifies procedures for transfer of structured settlement payment rights.

Eminent Domain Bills -
HB 26 - Eminent domain failed introduction in the House. The bill was sponsored by the Joint Agriculture, Public Lands and Water Resources Interim Committee. Following the United States Supreme Court?s decision in Kelo et al v. New London et al., 545 U.S.__2005 which held that the city of New London?s disposition of the petitioner?s property for a project to promote economic development does qualify as a ?public use? in the Fifth Amendment?s Takings Clause, many states have passed legislation more narrowly defining ?public use.? HB 26 would have amended Section 1. W.S. 1-26-502(a) by defining public use as the possession, occupation and enjoyment of the land by the general public or by a public entity. Public use would not have included the taking of private property by a governmental entity for the benefit of another private individual or private entity nor shall it include lands acquired primarily for: (A) Economic development; (B) Industrial development; (C) An increase to the tax base; (D) An increase to tax revenues; and (F) An increase in general economic health.

SF 26 - Eminent domain moratorium is still on the list to be introduced in the Senate. SF 26 is sponsored by the Joint Agriculture, Public Lands and Water Resources Committee. The bill prohibits initiation of condemnation or eviction actions under W.S. 1-26-501 through 1-26-817 when the taking will result in the property being owned or controlled by a private party.

SF 103 - Eminent domain revisions is also still on the list to be introduced in the Senate.
SF 103 is sponsored by Senators Schiffer, Hanes and Representative Landon. The bill allows for legal review of the findings of a regulatory agency as to whether the requirements to exercise eminent domain were met. SF 103 provides for a jury trial for the condemnee on the issues of good faith, whether the taking is consistent with the greatest public good and least private injury test and whether the condemnor can show necessity for the taking. Attorney fees are to be paid to the landowner if the jury award for the taking exceeds the last written offer given to the landowner prior to filing the condemnation action. The bill provides for compensation of a partial taking of property. It also requires that the right of condemnation for private condemnors be a last resort and that the private condemnor bear the burden of proving by a preponderance of the evidence that the condemnation is a last resort.

And don?t forget SF 17 Abandonment of sheep. The bill is on the list for introduction. It is illegal for a sheep herder to abandon sheep, punishable with a minimum fine of $200.00 and up to six months in prison. This bill increases the penalties to a minimum fine of $5,000 and up to a year in prison. And, if you offer a sheep herder a job without five days notice to his current employer, the fine will be a minimum of $10,000 up to $20,000 and a year in prison.

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2006 Budget Session Preview

The Budget Session of the 58th Legislature will begin February 13, 2006. One hundred and twenty-nine committee sponsored bills will be considered and it is expected that there will be another 400-500 bills filed so the 20 day session will be a busy one. The mix of issues is also interesting and covers a wide range of topics but with more than a billion dollar surplus, much of the focus and debate will be on spending and saving.

Surplus means what is left after all of the needs or requirements have been met. To meet Wyoming's needs, and our needs list is long as is the wish list, will require more than the billion dollars. For example, it is projected that meeting our highway needs would require spending the entire "surplus." The debate on what projects are funded and how much is saved will likely be a lively one.

If you are interested in reading bills or following legislative action be sure to use the Legislative Services web site. The WTLA web site will also have updates on many of the bills listed below. Another resource is the Equality State Policy Center's web site, which will also have daily updates on legislative issues.

There are a number of pre-filed bills that may be of interest.

In the House, HB 7 - Insurance-intoxication exclusion is sponsored by the Joint Transportation, Highways and Military Affairs Interim Committee. This bill prohibits clauses in insurance policies which exclude coverage for losses caused by the insured's being intoxicated or under the influence of drugs. HB 7 also repeals W.S. 26-18-126 which authorizes alcohol exclusion clauses in disability policies. The bill does not preclude an insurer from excluding coverage for any claim arising from the commission of a felony.

HB 9 - Workers' compensation-drug and alcohol testing, sponsored by the Joint Labor, Health and Social Services Committee, will provide a discount of up to 5% of the base rate for employers using a division approved drug and alcohol testing program.

HB 18 - Service of process fees sponsored by Rep. Brechtel will increase process fees from up to $20.00 to not more than $35.00.

HB 23 - Protection Orders Duration is sponsored by Reps. Olsen, Edwards and Sen. Larson.
HB 23 increases the duration of a protection order from up to three months to up to a year. The bill also allows the order to be extended repeatedly for one year periods upon motion of the petitioner and a hearing and to be subject to judicial review by request of either party.

HB 26 - Eminent domain is sponsored by the Joint Agriculture, Public Lands and Water Resources Interim Committee. Following the United States Supreme Court's decision in Kelo et al v. New London et al., 545 U.S.__2005 which held that the city of New London's disposition of the petitioner's property for a project to promote economic development does qualify as a "public use" in the Fifth Amendment's Takings Clause, many states are passing legislation more narrowly defining "public use." HB 26 amends Section 1. W.S. 1-26-502(a) by defining public use as the possession, occupation and enjoyment of the land by the general public or by a public entity. Public use shall not include the taking of private property by a governmental entity for the benefit of another private individual or private entity nor shall it include lands acquired primarily for:

  • (A) Economic development
  • (B) Industrial development
  • (C) An increase to the tax base
  • (D) An increase to tax revenues
  • (F) An increase in general economic health.
HB 28 - Sexual assault examinations, sponsored by Reps. Petersen, Gingery, Lunau and Quarberg and Senators Burns and Decaria, changes the medical examination requirements for a victim of sexual assault. HB 28 provides that a law enforcement agency may with the victim's consent arrange for an examination by a licensed health care provider acting within the scope of their practice. The examination may include treatment, evidence collection and evaluation. Release of the examination results and any reports or evidence to law enforcement will not be done without the victim's consent. The bill also adds language to 6-2-309 (e) regarding minor victims.

HB 29 - Anti-trust provisions is sponsored by the Joint Agriculture, Public Lands and Water Resources Interim Committee. This bill enhances damages recoverable for unfair business discrimination injuries suffered directly or indirectly. Any person, firm, private corporation or trade association may recover three times the actual damages, costs and reasonable attorneys' fees. HB 26 also provides that in any subsequent actions, the court may take any steps necessary to avoid duplicative recovery against a defendant.

HB 46 - Duty to Retreat, sponsored by Reps Watt and Powers, provides criminal and civil immunity to a person using force as permitted in W.S. 6-2-602 unless against a peace officer acting in the performance of his official duties. The bill also requires the court to award reasonable attorney's fees, costs and compensation for loss of income and expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the defendant is found to be immune from prosecution. HB 46 also defines when force can and cannot be used and reckless endangering. A person pointing a firearm at or in the direction of another is guilty of reckless endangering unless it is done in defense of person or property.

HB 48 - Harassment, intimidation or bullying prohibition is sponsored by Reps. Watt, Hinckley, Iekel, Robinson and Warren. The bill requires that school districts establish policies prohibiting harassment, intimidation or bullying and provides immunity for a school employee, student or volunteer reporting an incident involving harassment, intimidation or bullying.

HB 62 - Use of mobile communications while driving, sponsored by Rep. Esquibel, prohibits the use of a cellular or satellite telephone while operating a motor vehicle unless the telephone is specifically designed to allow hands-free operation.

Two bills address penalties for sex offenders:
HB 66 Sex offender penalties, sponsored by the Joint Judiciary Interim Committee, increases the penalty to life imprisonment without parole if a sexual offender is convicted of sexual assault of a minor and has one or more previous convictions of first, second or third degree sexual assault of a minor or the conviction of a crime that involved a victim who was under the age of sixteen years at the time of the offense and the offender was at least four years older than the victim.

HB 75 Sexual molestation of children-penalties sponsored by Reps. Pedersen, Cohee, Harvey and Hinckley and Sen. Peterson, establishes enhanced penalties for sex offenses involving victims twelve years of age or younger. The bill provides that penalties for sexual assault in the first degree will be a felony punishable by not less than 25 years or more than 50 years in prison. Second degree sexual assault will be a felony - 15-25 years and third degree, a felony - 5-15 years imprisonment. This bill also increases the penalty to life imprisonment without parole if the actor is convicted of sexual assault involving a victim of twelve or younger and has one or more previous convictions of first, second or third degree sexual assault of a victim twelve years of age or younger.

HB 85 - Guardians ad litem-immunity, sponsored by Reps Petersen, Buchanan, Gingery and Senator Hanes, provides immunity from civil or criminal liability for a guardian ad litem while acting in the scope of duties unless false or unfactual information is knowingly or negligently reported.

In the Senate, SF 4 - Public record-electronic mail sponsored by the Management Council, defines transitory electronic mail and provides for deletion of transitory electronic mail by the official or employee of a public office sender or recipient. Deletion must occur under the supervision of the official custodian of public records.

SF 5 - Privileged communications sponsored by the Management Council, provides that certain specified communications between a legislator and legislative staff be deemed confidential and privileged. Unless the privilege is waived by the individual legislator involved the following will be deemed confidential and privileged: requests for research or advice on a legislative issue, requests for drafting legislation or amendments to legislation, any matter under consideration by a legislative committee other than communications made publicly to legislative staff in a public meeting of a committee or development of legislator's position on legislation or discussion of any matter arising out of or relating to the deliberative process of the legislator. All documents and electronic records including correspondence, email, notes, memoranda and preliminary or final drafts not yet introduced will be confidential. Communications between a legislator and a contractor or consultant retained by the legislature and private communications of or to a legislator in his official capacity including communications with constituents will also be considered confidential.

SF 36 - Open containers of alcohol sponsored by Senator Ross and Rep. Hinckley, provides that alcoholic beverages shall not be transported in a moving motor vehicle unless in the orginal unopened package, in the trunk or any other outside compartment of the vehicle, in the back of a pickup truck, in the rear compartment of a vehicle not equipped with a trunk, in a cabinet or compartment of a recreational vehicle that is locked and not readily accessible to the driver. The bill excludes passengers on a chartered bus or chartered limousine.

SF 48 - Health care commission amendments is sponsored by the Joint Labor Health and Social Services Committee. The bill extends the sunset date of the commission to 2009, expands the commission membership, grants the commission subpoena authority and requires several studies and reports. One of the studies calls for a detailed plan for one or more demonstration projects of patient safety and alternate compensation systems as recommended in the Health Care Commission's October 2005 report. The plan is to outline operation for alternative compensation system demonstration projects and include draft legislation necessary to authorize the projects. The plan will include determination of cost and the cost should not exceed the cost of the current tort system. Compensation for those injured by avoidable adverse medical events is to be included along with providing a more favorable professional environment for attracting medical professionals. The plan is to consider making an alternative compensation system available to governmental hospitals and their employees and to provide liability coverage for the participating governmental entities. The act is effective July 1 and the plan is to be completed by November 10, 2006.

SF 55 - Qualifications of circuit court magistrates sponsored by Senator Hanes, adds qualifications for part-time magistrates of the circuit court requiring that a part-time magistrate be a resident of the district within which the circuit court is located.

SF 68 - Unfair claims settlement practices sponsored by Senators Coe, Larson, Decaria and Reps. Luthie and Berger, amends 26-13-124. The bill removes the requirement for demonstrating a pattern of general business practice when considering a person or insurance company to be engaging in an unfair practice in the business of insurance. SF 68 also provides for a third party right of action.

SF 76 - Drug Court Amendments sponsored by the Joint Labor, Health and Social Services Committee expands the jurisdiction of drug courts to address other social problems including domestic violence, child abuse and neglect, mental health disorders and other social problems. The bill provides that each court will have a choice of which functions it will undertake.

In the medical arena, there are a number of bills designed to assist in physician, psychiatrist and nurse recruitment, provide education to our young people about healthy living, provide loans for medical malpractice insurance, increase medicaid reimbursement for obstetrical services, implement state funded vaccination programs, provide electronic health records, establish a grant program for hospital improvement and expand the child health insurance program to cover parents. There is also a controversial measure to place a year long moratorium on the licensing of hospitals and medical specialty centers while a study is done by the Wyoming Health Care Commission to determine the effects of medical specialty centers on Wyoming's health care system.

There was hope that one of the appropriations considered this year would be for a loan to establish a physician's owned medical malpractice insurance company in Wyoming. Several WTLA members worked with a Nevada Insurance Company to research the requirements for a Wyoming doctor owned company. Preliminary actuarial data was presented to the Joint Judiciary Committee during the interim. The Wyoming Medical Society rejected the proposal and the effort stalled because of lack of support from the medical community.

And this is the short list. It should be an interesting session. If there are issues of concern or you have questions, please call the WTLA office (307) 635-0820.