You can’t beat a melodrama that features a daring rescue by two heroines, spellbinding oratory by the entire cast and so many red herrings that the audience is left not only wondering whodunit, but why on earth they did it?

To top it off, this entertainment was all available as free online streaming, courtesy of the Wyoming Legislature. 

Lawmakers really outdid themselves Friday and Saturday, meeting in a virtual two-day special session for the first time.

I wish I could give them a rave review. They did accomplish what they set out to do in an emergency session called by Gov. Mark Gordon to decide how to spend a whopping $1.25 billion in federal COVID-19 relief funds. Overall, it was an exceptional example of state executive and legislative branches coming together during a crisis.

The Legislature passed three measures that will unquestionably benefit residents, businesses, medical providers and local governments. The bills were fine-tuned over several weeks by the Legislative Management Council, based on the governor’s recommendations.

But sometimes even an exceptional performance can be marred by events beyond a playwright’s control, and even a top-notch production crew can’t foresee everything that can go wrong.

The finely tuned machine of the session spun out of control when the Senate tried to hijack the proceedings with a measure giving businesses immunity to certain lawsuits during the pandemic. Under an amendment made to Senate File 1002 – Emergency powers-COVID-19-2, business owners need only show they made a “good faith effort” to follow the orders of state and county health officers to avoid legal liability for people sickened through their enterprises.

I have no use for bills that put political statements into state statutes to please one group at the expense of other people’s constitutional rights. Double my disdain for this one, because the political statement it presents is wholly unnecessary to protect business owners. State law already grants them limited liability.

Opponents warned the bill may be unconstitutional. It should have been a fatal flaw. Instead, the House signed off on the bill by a 38-20 vote.

It shouldn’t have come down to a decision made in the waning moments by an exhausted contingent of lawmakers. The Management Council had considered an immunity clause and rejected it earlier, deciding the issue could be considered at a later special session.

But late on the night before the virtual session began, Sen. Dave Kinskey (R-Sheridan) and Rep. Richard Tass (R-Buffalo) filed mirror bills in their respective chambers that created broad immunity from lawsuits for COVID-19. They maintained that without such immunity, many owners will not be comfortable reopening their businesses and Wyoming’s economy will continue its downward spiral.

The Senate passed it 23-6. But House members refused to even consider the Tass bill.

Knowing the House would also deep-six the Senate bill, Sen. Liisa Anselmi-Dalton (D-Rock Springs) packaged the essential elements into an amendment and attached it to SF 1002, one of the session’s must-pass bills. It easily passed the Senate.

But the same amendment got a thumbs-down when Rep. Clark Stith (R-Rock Springs) tried to add it to the House version. Six joint conference committee members knew they had their work cut out for them when they sat down at noon Saturday in search of a compromise. 

During the initial hour-long tug-of-war, finding a middle ground looked increasingly impossible. Senate Majority Leader Ogden Driskill (R-Devils Tower) threw down the gauntlet, letting the other side know that if it wouldn’t budge, the bill was dead.

Negotiators all agreed that SF 1002 does three things that are too important to the state’s relief efforts to become casualties of a hardball legislative clash. 

First, it creates a new program to help tenants keep from being evicted by using federal funds to pay their rent.

The second provision exempts charging employers’ unemployment insurance accounts for claims directly tied to COVID-19. The third allows employees who get the disease to be covered under worker’s compensation.

House Majority Leader Eric Barlow (R-Gillette) looked disgusted and appeared ready to end the meeting and ask for a new committee to be appointed. If one wasn’t named, that would be the end of the bill. 

But two legislators persevered, ending the stalemate. House Minority Leader Cathy Connolly (D-Laramie) pointed out that State Statute 35-4-114 already offers all persons immunity from lawsuits filed during a disease epidemic if they follow the orders of the state health officer.

“Everyone stop being stubborn,” Sen. Tara Nethercott (R-Cheyenne) said. “If you want to meaningfully resolve this issue … it may be that a previous legislature gets to take credit for providing protections to businesses during the times of a pandemic. And that’s OK.”

An hour and a half later, when the group reconvened, Nethercott offered an amendment that added “business entities” to the existing law, to give owners confidence that they really are protected. She expanded the bill to cover orders by county and city health officials. Her relieved colleagues readily accepted the compromise, especially after she promised the Joint Judiciary Committee will keep working on the issue.

The next half-hour turned into a mutual admiration society. If they had been in the same room, and not on computer screens, I think social distancing would have been thrown out the window, with high-fives all-around. Maybe a few hugs, too.

When the issue went to the full House, everyone heaped praise upon the committee and especially Connolly and Nethercott. Still, few seemed totally satisfied with the grand bargain. Twenty representatives — one-third of the chamber — took turns speaking. It was an impressive display of democracy in action, as many expressed heartfelt concern about making the right decision.

I don’t think they did. But the whole can of worms can be opened again in six weeks, when the Legislature is likely to hold another five-day special session.

In the meantime, there’s plenty of fat for legislators to chew on. Stith warned about legal shakedowns by people filing frivolous lawsuits, trying to get insurance companies to settle for $20,000 or $25,000 a pop to avoid a trial.

Rep. Charles Pelkey (D-Laramie), a lawyer, said the state may have an immunity statute for six weeks before it’s rewritten, “causing enormous confusion in the legal system.”

“Wyoming is the business-friendliest state in the nation, but we don’t do that at the expense of the fundamental rights of our citizens,” he added.

Others criticized a process that allowed a bill to ambush lawmakers at the last minute, without any public input, which is the most troubling aspect of the whole affair. When that effort failed, the Senate shoved a hastily written amendment it passed on third reading in front of House conferees, who were essentially told, “Compromise or it’s your fault that this vital bill dies.”

It was unfair, it was childish and it was wrong. This time, the Senate got what it wanted; it signed off on the compromise 26-2 without even mentioning the immunity amendment that had so many House members searching their souls.

Rep. Albert Sommers (R-Pinedale) summed up the controversy this way: “I think what we’ve done with the process has been a real shame, and a black mark on us. I think we are better than this.” 

The House, in my view, has nothing to apologize for. And while I greatly admire the art of compromise, when it comes to legislative melodramas, there’s nothing wrong with the hero calling a bluff and walking out of the room.

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Kerry Drake

Veteran Wyoming journalist Kerry Drake has covered Wyoming for more than four decades, previously as a reporter and editor for the Wyoming Tribune-Eagle and Casper Star-Tribune. He lives in Cheyenne and...

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  1. Excellent analysis! Ole Ogden wants to make sure his KOA hasn’t got any worries as it reopens. He is also proud to pass laws that aren’t constitutional as he says Wyoming has plenty of money to fight them out in court and by the time the law is over turned it has been effective. A real statesman!