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Federal Register allows for publication of significant rules during government shutdown

The Office of the Federal Register (OFR) issued guidance to administrative agencies on January 14, 2019, allowing for the publication of significant regulations during the government shutdown that, if otherwise delayed, would negatively impact funded government functions. Under the prior publication standard, the Federal Register could only publish emergency rules, such as those necessary to protect human life, provide emergency services, or safeguard property.
Significant regulations may have large impacts on the economy, environment, public health, or state or local governments. They may also conflict with regulations from other agencies or presidential priorities. The Office of Information and Regulatory Affairs (OIRA) must review all significant regulations prior to publication in the Federal Register.
OFR received the new publication standards through guidance from the U.S. Department of Justice on January 11. The standards are drawn from a 1995 ruling by the Office of Legal Counsel, which held that “agency operations needed for government functions that do have appropriated funding may continue during a partial shutdown if the funding lapse would ‘prevent or significantly damage the execution of those funded functions,’” according to Bloomberg Government.
Following the change, the U.S. Department of Veterans Affairs published a significant regulation in the Federal Register on January 18 concerning the department’s claims and appeals regulations. The U.S. Department of Health and Human Services also published a significant rule on January 24 concerning payment parameters for certain health insurance exchanges.

President Trump resubmits 51 nominees for federal judgeships

On January 23, 2019, President Donald Trump (R) resubmitted 51 judicial nominations to the U.S. Senate. The nominees had been returned to the president earlier in January at the sine die adjournment of the 115th Congress.
The list included 37 nominees for the U.S. district courts, nine nominees for federal circuit courts of appeal, two nominees for the Court of Federal Claims, two for the Court of International Trade, and one for the Court of Military Commission Review.
At the adjournment of the 115th Congress on January 3, 19 of these nominees were awaiting a full Senate vote, 25 were awaiting a vote in the Senate Judiciary Committee, and seven were awaiting a committee hearing.
There are currently 57 pending judicial nominations, including six nominees the president submitted on January 16.
The Senate has confirmed 85 of President Trump’s judicial nominees—53 district court judges, 30 appeals court judges, and two Supreme Court justices—since January 2017.

Federal district court adopts new district map for Virginia House of Delegates

On January 22, 2019, the U.S. District Court for the Eastern District of Virginia issued an order adopting a remedial district plan for the Virginia House of Delegates. Pending the outcome of subsequent appeals, the remedial map will apply to the 2019 election cycle. Both chambers of the Virginia legislature hold elections this November.
House Speaker Kirk Cox (R) criticized the plan: “The Eastern District Court selected a series of legally indefensible redistricting modules that attempts to give Democrats an advantage at every turn. The modules selected by the Court target senior Republicans, myself included, without a substantive basis in the law.”
Democratic attorney Marc Elias, who initiated the suit in 2014, praised the order: “In Virginia, the Federal Court in the long-running state house redistricting case has ordered the special master to adopt the alternative-map configuration we advocated. We are one important step closer to the end of the GOP’s racial gerrymander.”
At present, Republicans control the House of Delegates, holding 51 seats to Democrats’ 48. Larry Sabato, head of the Center for Politics at the University of Virginia, said, “[The remedial map] would nearly guarantee a Democratic takeover of the House of Delegates.”
The legality of the districts in question has been disputed since 2014 when opponents of the original district plan alleged that it constituted an illegal racial gerrymander. The case, Bethune-Hill v. Virginia Board of Elections, was ultimately heard by the Supreme Court of the United States, which ruled on March 1, 2017, that the lower court had erred in its earlier ruling that upheld the disputed districts. That unanimous ruling was written by former Justice Anthony Kennedy.
The high court remanded the case to the district court, which ruled on June 26, 2018, that 11 state legislative districts had been subject to racial gerrymandering. The court ordered state lawmakers to draft a remedial map, but the legislature proved unable to do so. The district court then appointed a special master, Bernard Grofman, a political science professor at the University of California, to draft the map adopted by the court this week.

Alaska House splits 20-20 on vote for Republican speaker; majority still uncertain

Republican leader David Talerico’s bid to become Alaska House speaker failed Tuesday in a 20-20 vote. Talerico needed 21 votes to become the House’s permanent presiding officer and organize the House under a Republican majority.
Republicans, who won 23 seats in the 2018 elections, split 20-3 on the Talerico vote, with Reps. Gary Knopp, Gabrielle LeDoux, and Louise Stutes voting no. Rep. David Eastman (R), who previously said he might want a more conservative speaker than Talerico, voted yes. All 16 Democrats and independent Daniel Ortiz voted no.
The Alaska House has been without a majority since the 2019 legislative session began on January 15. Without a majority in place, legislative business cannot be conducted and standing committees cannot be appointed. Rep. Neal Foster (D) is serving as speaker pro tempore, but his powers are limited to administrative tasks and accepting nominations for the permanent speakership.
Knopp first announced he was leaving the Republican caucus on December 8, 2018. He said a narrow Republican-only majority would be unstable and announced his intention to form a bipartisan majority with power sharing between the parties. Before Tuesday’s vote, he said he would not support Talerico or Rep. Bryce Edgmon, the Democratic speaker from 2017 to 2018.
LeDoux and Stutes did not caucus with Republicans from 2017 to 2018 and helped swing control of the House to a mostly-Democratic coalition led by Edgmon. Both have expressed interest in joining another bipartisan coalition for the 2019-2020 session.
Rep. Chris Tuck (D) nominated Edgmon for speaker as well on Tuesday. However, Tuck withdrew the nomination shortly after Talerico was voted down. He said Edgmon did not have enough votes to advance either.

SCOTUS agrees to hear firearms case

The U.S. Supreme Court agreed to hear arguments in New York State Rifle & Pistol Association Inc. v. City of New York, New York. The case concerns provisions of New York City’s premises license that prevent a gun owner from transporting a licensed, locked, and unloaded handgun to a home or shooting range outside city limits.
A group of New York gun owners is arguing that not being able to travel outside of the city limits with a handgun violates their Second Amendment right, the dormant Commerce Clause, the First Amendment right of expressive association, and the fundamental right to travel.
It is the first firearms case the court has agreed to hear since 2010 when it heard McDonald v. Chicago, in which it held that the Second Amendment right to keep and bear arms for the purpose of self-defense applies to state and local gun laws. The case will likely be heard during the court’s October 2019-2020 term, according to SCOTUSblog’s Amy Howe.

SCOTUS issues seventh unanimous ruling this term

The U.S. Supreme Court issued its seventh unanimous ruling of the 2018-2019 term in Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc., a patent law case. Justice Clarence Thomas wrote the majority opinion affirming the ruling of the United States Court of Appeals for the Federal Circuit. It was Justice Thomas’ third opinion this term.
The court has heard arguments in 43 cases and issued eight rulings so far. The court has agreed to hear arguments in 29 more cases this term.
The justices will return to the court on February 19, 2019, for oral arguments. Click here for a list of cases to be heard at the February sitting.

Former U.S. Senator, NHL team owner endorse in Tampa Bay mayoral race

On Tuesday, former U.S. Sen. and Florida governor Bob Graham (D) endorsed city council member Mike Suarez for Tampa Bay mayor. In a statement, Graham said, “His leadership on the environment, our efforts to fight the war on terrorism and his dedication to protecting our elders, is what I admire about his service.” Suarez has also been endorsed by two local first responders unions.
Wednesday, Tampa Bay Lightning owner Jeff Vinik endorsed Jane Castor in the race. In a statement, Vinik said, “I know as our next Mayor, Jane will continue to strengthen our economy and make Tampa an even better place to live and work.”
Seven candidates are running to replace outgoing Mayor Bob Buckhorn (D), who is term-limited and was first elected in 2011. David Straz has raised the most of the candidates so far, $1.6 million, with Castor and Ed Turanchik next at about $220,000 each. Castor topped two summer 2018 polls produced by the group St. Pete Polls, averaging 44 percent with 18 percent of voters still unsure. Straz polled second in those polls with 10 percent support.
Tampa is the second-largest city in Florida and the 52nd-largest city by population in the United States. Twenty-six of the 100 largest cities by population will be holding mayoral elections in 2019. Five (Chicago, Houston, Philadelphia, San Antonio, and Dallas) are among the 10 largest cities.
Democrats hold the mayor’s office in 18 of the cities with elections this year. Republicans and independents hold four each.

Bipartisan bill introduced in Oklahoma House to retroactively apply 2016 State Question 780’s reduced criminal penalties

House Majority Leader Jon Echols (R-90) and Jason Dunnington (D-88) filed House Bill 1269 on January 17, 2019. The bill would make State Question 780 retroactive for those convicted before the measure became effective for crimes that were changed from a felony to a misdemeanor by SQ 780.

State Question 780 was on the ballot in Oklahoma on November 8, 2016, as an initiated state statute. It was approved by a vote of 58 percent to 42 percent.
State Question 780 changed certain non-violent drug- and theft-related crimes from felonies to misdemeanors, which come with a maximum penalty of one year in prison and a fine of $1,000. SQ 780 was designed to reduce the number and duration of state prison sentences for those crimes. State Question 781, the companion initiative to SQ 780, was also approved. It allocated prison cost savings brought about by SQ 780 to counties in proportion to their population to be claimed by privately-run rehabilitative organizations that provide drug and mental health treatment, job training, and education programs. Both measures went into effect in July 2017.
Jason Dunnington (D) said, “We have Oklahomans that are labeled as felons, and their crimes would be legal or a much lesser crime today. These folks are disenfranchised, and their families are suffering. This legislation seeks to heal these wounds and continue Oklahoma down the road of responsible criminal justice reform.”
Ryan Gentzler, the director of Open Justice Oklahoma, estimated that House Bill 1269 would make between 2,500 and 3,000 people eligible for reduced criminal sentences right away.
The bill is scheduled to be read for the first time on February 4, 2019.

Florida minimum wage initiative moves forward but still needs about 700,000 signatures to make the 2020 ballot

The Florida $15 Minimum Wage Initiative (#18-01) may appear on the ballot in Florida as an initiated constitutional amendment on November 3, 2020. The measure is backed by Florida For A Fair Wage, which is chaired by Florida lawyer John Morgan.
The measure would increase the minimum wage from $8.25 (2018) to:
$10.00 on September 30, 2021;
$11.00 on September 30, 2022;
$12.00 on September 30, 2023;
$13.00 on September 30, 2024;
$14.00 on September 30, 2025; and
$15.00 on September 30, 2026.
Thereafter, the minimum wage would increase or decrease each year based on changes in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W).
The initiative was approved for circulation on January 10, 2018. To trigger a ballot language review by the state supreme court, 76,632 valid signatures from at least seven of Florida’s congressional districts are required. Morgan announced on January 22, 2019, that he was submitting more than 120,000 signatures to start that process.
To qualify for the ballot, a total of 766,200 valid signatures are required. The deadline for signatures to be certified by the Florida secretary of state in order to qualify initiated constitutional amendments for the 2020 Florida ballot was set by law to be February 1, 2020. Since state law gives the secretary of state 30 days to verify signatures, petitioners need to submit signatures on or before January 1, 2020, to guarantee that an initiative qualifies for the ballot in 2020.
Florida For a Fair Wage has raised $478,173.80 so far, with all but $15 coming from Morgan & Morgan law firm. The committee reported expenditures totaling $475,669.26, of which 88 percent was paid to AAP Holding Company for signature collection. The average cost of a successful initiative in Florida was $4.15 million in 2016 and $4.59 million in 2018. Morgan also sponsored Florida’s marijuana legalization measure (Amendment 2) of 2016. Morgan’s law firm gave $2.74 million to the People United for Medical Marijuana PAC, which John Morgan was also the chair of. It cost a total of $2.8 million to get the marijuana initiative on the 2016 ballot.
Proponents of another measure, the Florida Changes to Energy Market Initiative (#18-10), reported submitting around 60,000 preliminary signatures for their initiative to start the supreme court ballot language review process. The measure would declare that it is the policy of the state of Florida that “its wholesale and retail electricity markets be fully competitive so that electricity customers are afforded meaningful choices among a wide variety of competing electricity providers.” According to reports available as of January 16, 2019, Citizens for Energy Choice reported $1.14 million in contributions, all from Coalition for Energy Choice, Inc. The committee reported $574,080.39 in total expenditures. Of the total expenditures, $546,500 was expended to Ballot Access LLC and Linjen Corp for signature gathering.
The Florida initiative process at a glance:
1. Sponsors must register as a political committee with the Florida Division of Elections before submitting a petition.
2. The Division of Elections must ensure that the proposed initiative’s petition format meets statutory requirements (such as ensuring that the proposed ballot title and summary are within the word-count limits and other technical formatting requirements).
3. A serial number is assigned and sponsors may begin to gather signatures for their proposed measure.
4. Sponsors must submit 76,632 valid signatures (10% of the number of signatures required statewide coming from at least 7 of Florida’s congressional districts). Sponsors must pay 10 cents per signature or the actual cost of signature verification (whichever is less) at the time signatures are submitted before state officials begin verifying signatures. Sponsors may declare that paying for signature verification would be an undue burden on resources and request to have signatures verified at no charge, however, committees may not file an undue burden affidavit if the committee used paid signature gathering.
5. Once preliminary signatures are submitted and verified, the secretary of state will forward the petition to the attorney general who will petition to the state supreme court for an advisory opinion on whether or not the measure complies with the single-subject rule and whether or not the ballot title and summary are appropriate. Simultaneously, the petition is also sent by the secretary of state to the Financial Impact Estimating Conference (FEIC) which prepares a fiscal analysis statement. The fiscal statement is also submitted to the supreme court for review and will appear on the ballot if the measure becomes certified.
6. A total of 766,200 valid signatures must be submitted and verified by February first of the target election year. Since state law gives the secretary of state 30 days to verify signatures, petitioners need to submit signatures on or before January 1 to guarantee that an initiative qualifies for the ballot. Florida, like many states, uses a random sample process or a full verification of signatures.
7. Amendments that are on the ballot, whether legislatively referred or citizen-initiated, require an approval vote of at least 60% to become law.

Florida Gov. DeSantis (R) appoints third supreme court justice

Gov. Ron DeSantis (R) appointed Carlos G. Muñiz to the Florida Supreme Court on January 22, effective immediately. Muñiz is DeSantis’ third appointment to the court. DeSantis previously appointed Florida Third District Court of Appeal Judges Barbara Lagoa and Robert Luck. The seats were vacant following the retirement of Justices Fred Lewis, Barbara Pariente, and Peggy Quince on January 7. Pariente and Lewis were appointed by Gov. Lawton Chiles (D) in 1997 and 1998, respectively. Quince’s appointment was a joint decision between Chiles and incoming Gov. Jeb Bush (R) in December 1998.
All seven members of the Florida Supreme Court were appointed by Republican governors–three by Gov. DeSantis, one by Gov. Rick Scott, and three by Gov. Charlie Crist. Crist was the Republican governor of Florida from 2007 to 2011. He changed his party affiliation to Democrat in 2012.
The 2018 gubernatorial election was framed by pundits and media members as a battle for control of the state court. Prior to the appointments by DeSantis, the Florida Supreme Court was labeled as having a liberal majority. The new appointments are considered a shift to a conservative majority of judges.
Muñiz is the 89th Florida Supreme Court justice since Florida statehood. Prior to his judicial appointment, Muñiz was the general counsel to the U.S. Department of Education. He was appointed to the position by President Donald Trump (R) and confirmed by the U.S. Senate in 2018. Muñiz was the deputy attorney general and chief of staff for Florida Attorney General Pam Bondi (R) from 2011 to 2014. He also previously served as deputy general counsel for the Jeb Bush gubernatorial administration and as deputy chief of staff and counsel in the Florida House of Representatives for then-Speaker Marco Rubio (R).
Muñiz obtained a B.A. with high honors from the University of Virginia in 1991. He received a J.D. from Yale Law School in 1997. During his legal studies, Muñiz served as an editor of the Yale Law Journal.
Newly appointed judges serve for at least one year, after which they appear in a yes-no retention election held during the next general election. If retained, judges serve six-year terms.
Florida is one of 22 Republican trifectas.