Article by Counsel to the Governor
Posted December 6, 2016A “Publius of Mississippi” has an interesting column in this issue apparently inspired by a “classic” 1925 Mississippi Supreme Court dissent’s account of “midget minded statesmen” who “are strong on midget legislation.” 1 While I cannot agree with all of that column, it certainly is true that some questionable or even “midget minded” bills have been “dropped in the hopper” over the years. This is probably inevitable. One of my personal favorites: “A north Mississippi lawmaker in 1996 apologized to his fellow House members for putting a provision in a bill, without telling them, to legalize cockfighting.” Reportedly, he “had called cockfighting ‘an emerging agribusiness.’” 2 Maybe he was inspired by Tom Russell’s Gallo del Cielo.3
Happily, the legislative process weeds out most such ill-advised measures. That being the case, this column will take up the more mundane task of discussing legislation that was actually signed into law during the recently concluded session, including several important education reforms that will lead to improved opportunities for Mississippi’s children, as well as several other sensible laws that may be of interest to the bar.
Last year, Governor Bryant articulated a comprehensive education agenda for the 2013 session and called on the Legislature to focus the session on improving public education in Mississippi. With the support of leadership in both Houses, the Legislature followed through on the Governor’s plan and enacted a series of reforms that should transform the State’s public school system for years to come.
Among these, the “Literacy-Based Promotion Act” (S.B. 2347) enacts a key component of the Governor’s agenda: a “third-grade reading gate” to end the practice of “social promotion.” The Act provides that any student who displays a substantial deficiency in reading at any time in kindergarten through the third grade must receive “intensive reading instruction and intervention immediately.” Beginning with the 2014-2015 year, if the student’s reading deficiency is not remedied by the end of third grade, “the student shall not be promoted to Fourth Grade,” unless one of a limited number of “good cause” exceptions applies. To help these students attain grade-level performance, each retained student will receive specialized, intensive instruction, such as in small groups or smaller classes, tutoring, extended school days, or summer reading camps.
The Literacy-Based Promotion Act is based on similar legislation enacted in Florida a decade ago. Studies have shown that Florida school children have benefited greatly from the program, with substantial gains in both reading and math achievement. Further, third-grade retention substantially reduces a student’s likelihood of being retained in later grades, and early grade retention has proven to be more effective and beneficial than later grade retention.
The “Mississippi Charter Schools Act of 2013” (H.B. 369), which Governor Bryant signed into law after several years of supporters’ hard work, represents another important reform. The Act authorizes the creation of up to fifteen charter schools per year in Mississippi. A charter school is a public school; it cannot charge tuition and operates under a “charter contract” with the independent Mississippi Charter School Authorizer Board. Like a public school, a charter school must be open to any student in the school district, and its percentage of low-income and special-needs students must mirror that of the district as a whole. If the school is over-enrolled, then slots must be filled by lottery. Charter schools will receive the same pro rata share of state education funds and local school district funds that other public schools receive. Initially, charter schools will be able to locate in any school district rated “D” or “F” and may also locate in an “A”, “B”, or “C” district with the local school board’s approval.
The straightforward and compelling logic behind charter schools is that they are given greater flexibility to innovate and freedom from some regulations in exchange for greater accountability to parents and taxpayers. If a charter school does not perform, then it will not survive — its customers (i.e., parents) will look elsewhere and/or the State will revoke its charter. Charter schools are already having positive impacts in other states, including just across the Mississippi River at the highly successful KIPP Delta schools in West Helena, Arkansas. Thus, while charter schools will not solve all of the education challenges facing Mississippi, the Charter Schools Act is an important first step toward offering greater parental choice.
Finally, Senate Bill 2658 contains several other elements of the Governor’s agenda, including a pilot program for a performance-based compensation for teachers and expanded college scholarships for top Mississippi students who commit to teach in Mississippi schools. The performance-based compensation pilot will be implemented over the next two years in four school districts. The State Department of Education will study the pilot and then recommend legislation for a statewide program by November 2015. The program will combine quantitative and qualitative performance measures, drawing on a 2012 report by researchers at MSU.
In addition to these important education reforms, several other bills were signed into law that should be of interest to the legal community. Speaker Gunn authored a bill making significant changes to the State’s DUI laws (H.B. 481), including the use of “ignition interlock” devices. An ignition interlock connects a vehicle’s ignition system to a breath analyzer and prevents anyone with a blood-alcohol concentration above a specified level (.03% under this bill) from starting the vehicle. Under the new law, a court may order use of an ignition interlock for 90 days after a first-offense DUI conviction and must order its use for longer periods after second and third offenses. In addition, the bill imposes new penalties, including a maximum ten-year sentence and a five-year license suspension, for a “fourth or subsequent” DUI. For purposes of this provision, offenses are counted “without regard to the period of time over which the offenses were committed.” (Current law recognizes only a “third or subsequent” offense, and the look-back period is limited to five years.) While the bill imposes new penalties for DUI offenses, it also offers significant new opportunities for nonadjudication or expunction of first offenses under certain circumstances. This new law is not effective until July 1, 2014, but it should have a significant positive impact once implemented. A number of other states have ignition interlock laws, and the CDC has concluded that use of such devices reduces DUI re-arrests by up to 67%.
This session also produced several insurance-related bills. House Bill 374 prohibits the issuance of a health insurance policy that “limits or restricts the insured’s ability to assign the insured’s benefits under the policy to a licensed health care provider.” The purpose of the bill is to allow insureds to assign benefits directly to a healthcare provider (typically, an out-of-network provider) to facilitate payment for services. Although two federal appellate courts have held that ERISA preempts similar statutes, the Fifth Circuit upheld a similar Louisiana law. La. Health Serv. & Indem. Co. v. Rapides Healthcare Sys., 461 F.3d 529 (5th Cir. 2006).
Another insurance bill, House Bill 534, makes several changes to the statutes governing the Insurance Department’s examinations and investigations of insurers. Notably, the bill provides that any “documents, materials or other information … created, produced or obtained by or disclosed to the commissioner or any other person in the course of an examination” are privileged and confidential and shall not be discoverable or admissible evidence in any private civil action. This law is consistent with the laws of a number of other states and the National Association of Insurance Commissioners' model law but may be challenged under the separation-of-powers provisions of the State Constitution.4
This session also produced two bills on Second Amendment-related issues. House Bill 2 clarifies that a visible, holstered pistol is not a “concealed weapon” — and, thus, that it is not a crime to carry one. This clarification was needed to address a perceived distinction between Miss. Code § 97-37-1(1), which broadly prohibits the carrying of any pistol “concealed in whole or in part on or about one’s person” (emphasis added), and the State’s concealed carry law, which authorizes the issuance of licenses “to carry … concealed pistols” (Miss. Code § 45-9-101(1)(a)). Last year, the Attorney General interpreted the latter statute to license the carrying of completely concealed weapons only — and, thus, opined that, even with a license, it was a crime to carry a partially concealed (i.e., visible but holstered) pistol. Op. No. 2012-00248, available at 2012 WL 3060408. Under this view, some had suggested that a person could be prosecuted if a strong wind blew his coat open to reveal a theretofore completely concealed pistol. Or as the late Chief Justice Roy Noble Lee colorfully put it, “[c]onceivably, carrying a revolver suspended from the neck by a leather throng could be partially concealing it.” L.M., Jr. v. State, 600 So. 2d 967, 971 (Miss. 1992) (concurring). House Bill 2 clarifies this area of the law and protects rights guaranteed by Section 12 of the State Constitution. The bill goes into effect on July 1.
The other Second Amendment-related bill, House Bill 485, provides that “[t]he name, home address, any telephone number or other private information of any person who possesses a [concealed carry] permit … shall be exempt from the Mississippi Public Records Act.” The bill was a response to a New York newspaper’s publication of an online database of names and addresses of all handgun licensees in that state, potentially endangering their safety and certainly chilling the exercise of the underlying constitutional right. While there is a strong argument that the State and Federal Constitutions already prohibited such public identification of licensees and public disclosure of their personal information,5 House Bill 485 now makes clear that their records may not be disclosed by state officials.
Finally, this session produced two updates to laws related to murder. First, House Bill 28 revises the Code section on “attempts” (97-1-7) so that, effective July 1, attempted murder is punishable by life imprisonment if the jury fixes that sentence; otherwise, the court shall impose a sentence of at least twenty years. While the law already recognizes the crime of attempted murder, punishment for the crime has been limited to just ten years’ imprisonment. For this reason, attempted murders are often prosecuted as aggravated assault, which carries a sentence of up to twenty years. House Bill 28 addresses this discrepancy so that attempted murder can be charged as such. Second, Senate Bill 2377 amends the law to distinguish between first- and second-degree murders, bringing Mississippi into line with most other states. Effective July 1, a murder committed with the “deliberate design to effect … death” or during the commission of certain enumerated crimes shall be first-degree murder and carry a sentence of life imprisonment. Other murders are deemed “second degree” and carry a sentence of twenty years’ to life imprisonment.
While the 2013 regular session should be remembered for its education reforms, the reality is that much post-session analysis has focused on what did not pass before sine die, i.e., a bill to extend repealers on certain provisions of the state Medicaid law and a Medicaid appropriations bill for FY2014. As has been much discussed, House Democrats voted four times to block these measure; put simply, the minority party has decided to hold hostage 641,000 current Medicaid beneficiaries, as well as providers, in a misguided effort to force a massive expansion of an entitlement program that the State already struggles mightily to fund. Whatever one’s views on expansion, jeopardizing the existing Medicaid program and those who depend on it is an irresponsible and unprecedented political game that should end.
