2008 Legislative Session
ACLU of Rhode Island was involved in the following legislation in 2008:
Civil Rights Bills
A budget article establishing a special kind of charter school, known as mayoral academies, initially contained a provision allowing the academies to be exempt from a wide variety of school mandates, including antidiscrimination provisions! Due to an outcry from the ACLU and others, that particular exemption was removed before the budget article passed.
R.I. Civil Rights Act (S 2143/H 7361)
The General Assembly unanimously passed a bill promoted by the Affiliate to make clear that plaintiffs have three years, rather than one year, to sue under the Rhode Island Civil Rights Act, a major state law prohibiting discrimination in employment and other settings. The bill, sponsored by Rep. Donna Walsh and Sen. Daniel Connors, was in response to a recent divided R.I. Supreme Court ruling that concluded that complainants have only one year to bring suit under the law, even though the default statute of limitations for virtually all other personal injury actions in Rhode Island is three years. In vetoing the bill, the Governor claimed that the three-year proviso was “unreasonable” to the business community, even though — for almost two decades, until last year’s court ruling –- employers and employees had operated under a three-year assumption. As a result of the veto, a victim of discrimination now has a shorter time to file suit than just about any other type of claimant, including a person who is a victim of a dog bite (three years) or of property damage to his or her car (ten years).
First Amendment Rights Bills
The Affiliate successfully opposed a bill that sought to expand the definition of criminal “harassment” to include not just unwanted direct contact, but also the posting of information on Web sites about people. If passed, the bill could have subjected innumerable Internet users and bloggers to criminal penalties if their criticism of people or businesses was deemed to be designed to cause “substantial emotional distress.” After the ACLU argued that the bill raised serious free speech concerns, Rep. Edith Ajello and Sen. Charles Levesque persuaded fellow Judiciary Committee members to remove problematic language from the legislation.
“Healthy Marriages/Healthy Families”
The ACLU also successfully objected when a completely revised “welfare reform” provision in the proposed 2009 budget authorized the Department of Human Services to apply for federal funding for so-called “healthy marriage” programs. These programs, like the federal government’s widely criticized “abstinence only” initiatives, often have a religious and anti-gay-marriage slant. Legislative leaders removed the provision from the budget on the House floor.
Despite the state’s difficult fiscal times, the legislature approved a bill that will require public school districts to continue providing certain taxpayer-funded services to students with disabilities in parochial schools. The state Board of Regents, following the federal government’s lead, had recently concluded that the private schools themselves should begin paying for these services. However, a strong lobbying push spearheaded by the Catholic Diocese convinced the legislature to overturn that ruling.
Gay and Lesbian Rights Bills
Misc. LGBT Bills
Despite efforts by the ACLU and Marriage Equality R.I., no action was taken on Affiliate legislation specifying that the Family Court has jurisdiction to grant divorces to validly-married same-sex couples. The legislation, sponsored by Rep. Gordon Fox and Sen. Daniel Connors, was a direct response to a R.I. Supreme Court decision in December denying a divorce to a same-sex couple who had been lawfully married in Massachusetts. The bill had a very favorable hearing on the House side, but the Senate wanted nothing to do with gay rights legislation this year and didn’t even hold a hearing on the measure.
Immigrants' Rights Bills
Misc. Immigration Related Bills
It was touch-and-go until the very end, but a strong lobbying effort from the ACLU and other civil rights groups persuaded the Senate not to enact a House-passed bill requiring all employers in the state to participate in the federal government’s faulty “E-Verify” program. The federal government has acknowledged that the program, designed to determine an applicant’s authorization to work, contains millions of errors. Its routine misuse by employers has also been found to increase workplace discrimination on the basis of national origin. Thus far, only Arizona and Mississippi have passed such a far-reaching law. Although civil rights groups mostly testified against the bill on the House side, the Senate committee hearing was populated with other opponents. They included the Greater Providence Chamber of Commerce and the Society for Human Resources Management. Despite pressure from the House, Senate leaders kept the bill in committee, citing legal concerns about the proposal. In the meantime, all other immigrant-related legislation, both good and bad, also died in committee.
The Senate approved an ACLU bill requiring the Department of Human Services to provide appropriate language interpreter services to clients. The bill codified a consent agreement that DHS has with the federal government as a result of complaints filed over the years. Although it died in House Finance Committee, the bill, sponsored by Sen. Maryellen Goodwin and Rep. Elizabeth Dennigan, will be reintroduced next year. In the state’s current xenophobic climate, the ACLU considered it a victory to get the bill approved by even one House.
Medical Privacy Bills
Health Information Exchange
One of the ACLU’s major, though not unexpected, defeats involved the passage of a bill that formalizes the establishment of a centralized health records database in the state. Although the Affiliate was able to add some confidentiality safeguards into the proposal, it was far from enough to satisfy numerous privacy concerns raised by the database. Health care providers strongly supported the bill as providing better coordination of health care. The ACLU agrees with that goal, but remains concerned that the new law will greatly limit a patient’s control over his or her records and open the door to widespread access to a patient’s full medical records by a variety of third parties. Although a patient will have the opportunity to opt-out of participating in the system, nothing in the new law prevents physicians from requiring patients to participate as a condition of treatment.
For the third year in a row, doctors pushed to expand HIV testing, while reducing the confidentiality protections in place for patients and severely limiting HIV counseling requirements. Major revisions to the protections contained in the state’s HIV testing laws have already been made each of the past two years in response to doctors’ complaints. Working with CHAMP, a national AIDS advocacy group, the Affiliate was successful in holding off any additional weakening of the law this year. Instead, the General Assembly voted to create a study commission to examine the issues.
The ACLU was unsuccessful in tightening up language, added at the last minute to a budget article, authorizing the Department of Health to require newborn screening for a variety of unspecified “conditions.” The Affiliate is concerned that the broad language could open the door to widespread genetic testing of newborns. The Affiliate will be monitoring the Department’s implementation of this provision.
The Budget and the Poor
In seeking to close the state’s enormous fiscal deficit, the legislature’s 2009 budget contains a host of provisions significantly streamlining welfare procedures and slashing welfare programs, including RIte Care for the children of undocumented immigrants. The Affiliate will be examining these budget articles, and their implementation, in the coming months to determine if legal challenges to some of these measures can be brought.
Mandatory Sentencing (S 2232/H 8025)
For the second year in a row, the Governor vetoed a bill that would have eliminated draconian mandatory minimum sentences contained in some of Rhode Island’s drug laws, which are the harshest in all of New England. When the Governor vetoed the bill last year at the request of the State Police, the ACLU argued that he not only ignored the proposal’s beneficial impact on the state’s ongoing prison population crisis and deep fiscal problems, he closed his eyes to the severe and discriminatory impact of drug sentencing laws on the state’s African-American and Latino population. However, he once again claimed that the bill interfered with the judiciary’s ability to impose an appropriate sentence, notwithstanding the Superior Court’s support for the legislation.
A Miscellany of Anti-Civil Liberties Bills That Died This Session
Despite the very difficult session for civil liberties as chronicled in the previous pages, it is worth noting that the Affiliate had many successes in keeping damaging legislation from ever reaching the floor. In that regard, listed below are some bills of civil liberties importance, reviewed in prior newsletters, which were opposed by the ACLU and ultimately did not make it out of committee this session:
- A Family Court bill that would have generally barred local juvenile hearing boards from dealing with first-time offenders charged with drug or alcohol offenses, and instead required referral of such cases to court.
- A troubling State Police proposal to give law enforcement agencies broad authority to secretly obtain, without a warrant, subscriber information from Internet service providers.
- A bill to require the presentation of photo identification at the polls in order to vote.
- Legislation providing for the collection and storage of DNA samples from any person arrested for a felony of any kind.
- An Attorney General bill that would have written into Rhode Island law a vague federal statute, making it a felony for a public employee to “engage in any conduct that deprives the public of the intangible right of his or her honest services.”
- A bill authorizing police officers to stop and ticket persons for smoking in their car if a child required to be in a car seat was in the vehicle.
- A bill making it a crime for school employees to bring any “obscene” materials – from books to sex toys – onto school grounds.
Open Government Bills
Administrative Procedures Act
The APA, an important law requiring state agencies to provide public notice and seek input on proposed regulations, took a beating this year. As a way of saving money, the enacted 2008 supplemental budget included a provision allowing the agencies to post notices of their public rule-making proceedings on the Internet only, as opposed to the current newspaper notice requirement. In objecting to that proposal, the ACLU noted the “digital divide” that exists in terms of computer access for some members of the public, the troubles that have existed with the state’s system of electronically posting current regulations, and the effort that advocacy groups would need to exert to follow dozens of state agency rule-making postings in this fashion.
Unfortunately, the enacted 2009 budget went one step further: it includes a provision allowing the Department of Human Services to adopt on an “emergency” basis any and all regulations it deems desirable while implementing new welfare reform provisions. By designating the rules this way, the Department need not seek any public input on its regulations until seven months after their adoption. This provision was added to the budget at the last minute; the House Finance Committee had specifically rejected that approach when it was first proposed by the Governor in his 2008 supplemental budget.
Public Records (S 2963/H 7422)
For the first time in ten years, the General Assembly approved comprehensive legislation to strengthen the state’s Access to Public Records Act (APRA). Among other things, the bill shortened the timeframe for public bodies to respond to open records requests and required training of public information officers on their APRA obligations. A recent ACLU report, documenting widespread non-compliance with the statute, served as an impetus for this much-needed bill. The Affiliate, working with the open government groups ACCESS/ RI, Common Cause of R.I. and others, made passage of the bill a priority. As the bill made its way through the General Assembly, supporters agreed to numerous revisions in response to objections made by representatives of public agencies. Proponents also reached agreement with the R.I. Police Chiefs Association on provisions related to access to police records. The bill passed with only a handful of negative votes. Nonetheless, at the apparent behest of the R.I. State Police, the Governor vetoed the legislation, claiming that the bill would somehow hamper police work. Sen. Michael Lenihan and Rep. Edith Ajello, the sponsors of the legislation, have indicated they will urge legislative leaders to override the veto.
Automated Traffic Monitoring Systems
Despite a recent and detailed ACLU report documenting that “red light cameras” appear to have had no positive impact on driver safety and have cost the City of Providence close to a million dollars, the legislature authorized their permanent use, repealing a sunset clause on the technology’s utilization. In a similar vein, a new law was enacted allowing the installation of traffic cameras on school buses; the technology purports to record vehicles that go past stopped school buses, allowing for the issuance of citations for these traffic violations. The ACLU had raised various privacy and due process concerns about both types of camera systems.
While significantly increasing the criminal penalties for “indecent exposure,” the legislature refused to approve an amendment, proposed by Rep. Edith Ajello at the ACLU’s request, which would have prevented police officers from serving as the sole complaining witnesses to such a charge. The amendment was prompted by a tragic incident a number of years ago when Johnston police raided a gay adult movie theatre and arrested patrons on “indecent exposure” charges; one of the arrestees committed suicide days later.
Radio Frequency ID (S 2113/H 8027)
In two previous years, the Governor had vetoed ACLU legislation that restricted the state and municipalities from using radio frequency identification (RFID) technology on students, employees or clients. Originally developed to track cattle and commerce, RFID technology allows a person’s identity and movement to be monitored electronically. Earlier this year, the Middletown school district began placing RFID chips on the backpacks of elementary school children, purportedly to make sure they got on the right school bus. Because the Governor’s previous veto messages had complained about the breadth of the bill, and particularly its limitations on employee monitoring, this year the legislative sponsors, Sen. Frank Ciccone and Rep. Charlene Lima, limited the bill to apply to students only. (The bill also addressed RFID use in E-ZPass toll payment systems by limiting public access to the information gathered by those systems.) Nonetheless, the Governor still used his veto pen on the legislation, this time claiming RFID could somehow be helpful to schools in the event of a natural disaster, a Columbine incident or terrorist attack.
Racial Profiling Bills
Comprehensive Racial Profiling Bill
Despite persistent efforts by Senate sponsor Rhoda Perry, no action was ultimately taken on a comprehensive bill that would have strengthened the state’s racial profiling law by requiring police to document the grounds for conducting car searches; limiting the authority of police to demand identification from innocent passengers; banning so-called “pretext” stops; and reestablishing traffic stop data collection procedures. The two dozen civil rights organizations supporting the legislation will work for its passage next session. The bill was vigorously opposed by the R.I. Police Chiefs Association, even as recent state data continued to document that blacks and Hispanics remained about twice as likely as whites to be stopped and searched in encounters with police. The data also continued to show that whites were more likely than blacks or Hispanics to be found with contraband when searched.
“Primary Seat Belt Law”
On a more positive note, ACLU vigilance thwarted a last-minute effort by the State Police and the Department of Transportation to obtain passage of their bill making seat belt violations a primary offense. The ACLU, the Urban League of R.I. and other civil rights groups have strongly opposed this effort, arguing that allowing police to pull over suspected seat belt violators will only increase the extent of racial profiling occurring in Rhode Island. When the bill was posted for a committee vote in the late-night hours at the very end of the session, the ACLU advised Rep. Joseph Almeida, the House Minority Caucus chair, who persuaded legislative leaders to withdraw the proposed vote.
Rights of Ex-Offenders Bills
In approving a complete rewrite of the regulatory statute governing optometrists, the General Assembly – at the ACLU’s urging – took a modest step forward in eliminating troubling and archaic language that appears in most occupational licensing statutes. Many of those laws, like the one governing optometrists, allow the licensing body to take into account such things as an applicant or licensee’s “moral character” or any criminal record in deciding whether to grant, suspend or revoke a license. Over the years, the ACLU has attempted to limit the offenses that can lead to a revocation of a person’s license – and thus his or her livelihood – to crimes that relate in some way to the occupation. Otherwise, promotion of ex-offenders’ rehabilitation and reintegration into society is stymied. Under the amended legislation approved by both Houses, consideration of a person’s criminal record is limited to certain specified felonies. The Affiliate hopes to come back next year with an omnibus bill to do the same thing for the dozens of other occupational licensing statutes on the books.
Sex Offenders Bills
In one of the most troubling actions of the session, the legislature hurriedly passed a bill making it a crime for any sex offender to live within 300 feet of a school. Introduced in February, the bill was heard for the first time on June 20th. Further, although no testimony in favor of the bill was given, the Senate Judiciary Committee approved the legislation with only one dissent. When, in the final hours of the session, some House Judiciary Committee members refused to provide a quorum necessary for a committee vote on the bill, legislative leaders exercised their powers under House rules to vote as ex-officio committee members. Machinations like these were perhaps necessary since, despite their popular political support, there is widespread agreement among victims’ rights groups and prosecutors that these laws are ineffective and counter-productive. In fact, the General Assembly’s own sex offender study commission had rejected residency restrictions! The ACLU will be considering taking legal action against the new law.
ACLU lobbying removed language from an Attorney General bill that would have allowed the names of juvenile sex offenders to be posted on a state website. If passed, this would have critically undermined the rehabilitative goal of Family Court proceedings.
Voting Rights Bills
A comprehensive voting reform bill proposed by the ACLU foundered in the Senate this year. Designed to strengthen the franchise in Rhode Island, the legislation, sponsored by Rep. Edith Ajello, would overturn restrictive Board of Elections’ policies that substantially limit the counting of provisional ballots and restrict the rights of candidates to view disputed ballots during recounts of close elections. The House passed a watered-down version of the bill, requiring the Board of Elections to follow the rule-making procedures of the Administrative Procedures Act, a process that every other major state agency must abide by. However, even this truncated version of the bill died in the Senate due to objections from the Board of Elections. On the positive side, however, problematic bills introduced on behalf of the Board, including legislation to eliminate a requirement that mail ballots be counted when the intent of the voter is clearly identifiable, died as well.