MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Public Health and Welfare

By: Senator(s) Gunn

AN ACT TO ENACT THE HEALTH ENHANCEMENT AND ECONOMIC CIVIL RIGHTS ACT TO INCREASE OPPORTUNITIES OF PERSONS TO ENGAGE IN OCCUPATIONS AND PROFESSIONS ESPECIALLY HEALTH RELATED SERVICES WITHOUT ARTIFICIALLY LIMITED ENTRANCE AND COMPETITION; TO ENHANCE OPPORTUNITIES OF PRIVATE BUSINESS TO PROVIDE PUBLIC SERVICES; TO ESTABLISH ADMINISTRATIVE PROCEEDINGS TO FOSTER THE FOREGOING; TO PROVIDE FOR JUDICIAL REVIEW OF ADMINISTRATIVE RULINGS UNDER THE ACT; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. This act shall be known, and may be cited, as the "Economic Civil Rights Act."

SECTION 2. (1) The Legislature hereby finds and declares that:

(a) The right of individuals to pursue a chosen business or profession free from arbitrary or excessive government interference is a fundamental civil right.

(b) The freedom to earn an honest living traditionally has provided the surest means for economic mobility.

(c) The public purpose of regulating entry into businesses and professions is limited to protection of public health, safety and welfare.

(d) In recent years, many regulations of entry into businesses and professions especially health related services have exceeded legitimate public purposes and have had the effect of arbitrarily limiting entry and reducing competition.

(e) The burden of excessive regulation is borne most heavily by individuals outside the economic mainstream, for whom opportunities for economic advancement are curtailed.

(f) It is in the public interest:

(i) To ensure the right of all individuals to pursue legitimate entrepreneurial and professional opportunities to the limits of their talent and ambition;

(ii) To provide the means for the vindication of this right; and

(iii) To ensure that regulations of entry into businesses and professions are demonstrably necessary and carefully tailored to legitimate health, safety and welfare objectives.

SECTION 3. For the purpose of this act, the following words shall have the meanings ascribed herein, unless the context clearly requires otherwise:

(a) "Agency" shall be broadly construed to include the state, all units of state government and all units of government and shall exclude no entity established under the Constitution or laws of the state or established by any entity which was itself established under the Constitution or laws of the state.

(b) "Entry regulations" shall include any law, ordinance, regulation, rule, policy, fee, condition, test, permit, administrative practice, or other provision relating to the opportunity to engage in any occupation or profession.

(c) "Public service restrictions" shall include any law, ordinance, regulation, rule, policy, fee, condition, test, permit, administrative practice or other provision the effect of which is to exclude or limit the use of private firms from providing public services under the supervision of agencies, with or without the support of public subsidy.

(d) "Welfare" shall be narrowly construed to encompass protection of members of the public against fraud or harm. This term shall not encompass the protection of existing businesses or agencies, whether publicly or privately owned, against competition.

(e) "Subsidy" shall include taxes, grants, user fees or any other funds received by or on behalf of an agency.

SECTION 4. All entry regulations with respect to businesses and professions shall be limited to those demonstrably necessary and carefully tailored to fulfill legitimate public health, safety or welfare objectives.

SECTION 5. All public service restrictions shall be limited to those demonstrably necessary and carefully tailored to fulfill legitimate public health, safety or welfare objectives.

SECTION 6. (1) Within nine (9) months of enactment every public health agency and within one (1) year following enactment, every other agency shall conduct a comprehensive review of all entry regulations within their jurisdictions, and for each such entry regulation it shall:

(a) Articulate with specificity the public health, safety or welfare objective served by the regulation; and

(b) Articulate the reason why the regulation is necessary to serve the specified objective.

(2) To the extent the agency finds any regulation that does not satisfy the standard set forth in Section 4 of this act, it shall:

(a) Repeal the entry regulation or modify the entry regulation to conform with the standard of Section 4 of this act if such action is within the agency's authority to do so; or

(b) Recommend to the Legislature actions necessary to repeal or modify the entry regulation to conform to the standard of Section 4 of this act if such action is not within the agency's authority.

(3) Within fifteen (15) months following enactment, each agency shall report to the Legislature on all actions taken to conform with this section.

SECTION 7. (1) Within one (1) year following enactment, every agency shall establish and, within eighteen (18) months following enactment, implement a routine private participation process with respect to the public services under its jurisdiction. Such process shall require that:

(a) Private companies be permitted to perform public services that can be produced without subsidy. An agency may establish reasonable requirements with respect to notice of entry and exit.

(b) Private companies be permitted to periodically and fairly compete for contracts to perform public services that cannot be produced without subsidy.

(c) Private companies not be precluded from commercially producing any service under the jurisdiction of the agency which is not included in paragraph (a) or (b) of this subsection (1).

(2) The competitive process required by subsection (1) of this section shall be designed to allow the maximum extent of participation by private firms of all sizes and shall:

(a) Rely upon multiple contracts wherever feasible; and

(b) Not include any provisions or arrangements that have the effect of limiting competition or precluding participation except as necessary to achieve the standard set forth in Section 5 of this act.

(3) Every agency shall have the authority to establish reasonable standards of customer service with respect to public services under paragraphs (a) and (b) of subsection (1).

(4) Every agency shall recommend to the Legislature actions necessary to repeal or modify any public service restriction to conform to the standard set forth in Section 5 of this act if such action is not within the agency's authority.

(5) Within fifteen (15) months following enactment, each agency shall report to the Legislature on all actions taken to conform with this section.

SECTION 8. (1)(a) Any person may petition any agency to repeal or modify any entry regulation into a business or profession within its jurisdiction.

(b) Within ninety (90) days of a petition filed under this subsection, the agency shall either repeal the entry regulation, modify the regulation to achieve the standard set forth in Section 4 of this act, or state the basis on which it concludes the regulation conforms with the standard set forth in Section 4 of this act.

(2)(a) Any person may petition any agency to repeal or modify any public service restriction within its jurisdiction.

(b) Within ninety (90) days of a petition filed under this subsection, the agency shall either establish, and within nine (9) months implement, the requirements of Section 7 of this act, or state the basis on which it concludes the public service restriction conforms with the standard set forth in Section 5 of this act.

SECTION 9. (1) Notwithstanding any other provision of law, an agency shall not award or extend any franchise that has the effect of conflicting with either Section 4 or Section 5 of this act.

(2) Notwithstanding any other provision of law, an agency shall not execute or extend any contract provision, including any labor contract provision that has the effect of conflicting with either Section 4 or Section 5 of this act.

(3) This section shall not require the cancellation of any contract clause in effect as of January 1 of the year of the passage of this act so long as the contract expires no later than twenty-four (24) months after such passage.

SECTION 10. (1) Any time after ninety (90) days following a petition filed pursuant to Section 6 of this act that has not been favorably acted upon by the agency, the person filing a petition challenging an entry regulation or public service restriction may file an action in the Chancery Court of the First Judicial District of Hinds County.

(2) With respect to the challenge of an entry regulation, the complainant shall prevail if the court finds by a preponderance of evidence that the challenged entry regulation on its face or in its effect burdens the creation of a business, the entry of a business into a particular market, or entry into a profession or occupation, and either:

(a) That the challenged entry regulation is not demonstrably necessary and carefully tailored to fulfill legitimate public health, safety or welfare objectives; or

(b) Where the challenged entry relation is necessary to the legitimate public health, safety or welfare objectives, such objectives can be effectively served by regulations less burdensome to economic opportunity.

(3) With respect to the challenge of a public service restriction, the complainant shall prevail if the court finds by a preponderance of the evidence that on its face or in its effect the public service restriction limits participation by private companies in the provision of public services or other services under the jurisdiction of the agency, and either:

(a) That the challenged public service restriction is not demonstrably necessary and carefully tailored to fulfill legitimate public health, safety or welfare objectives; or

(b) Where the challenged public service restriction is necessary to fulfill legitimate public health, safety or welfare objectives, such objectives can be effectively served by restrictions that allow greater private participation.

(4) Upon a finding for the complainant, the court shall enjoin further enforcement of the challenged entry regulation or public service restriction and shall award reasonable attorney's fees and costs to the complainant.

SECTION 11. This act shall take effect and be in force from and after July 1, 1997.