Sen. Kyle Gay

This Act defines machine gun as it is defined under federal law. Defining machine gun makes clear the types of weapons prohibited under Delaware law, including an auto sear, or “glock switch”, which transforms a semiautomatic gun into a machine gun. Additionally, this Act prohibits a person from making a destructive weapon, including a machine gun. Finally, this Act makes technical corrections to conform existing law to the standards of the Delaware Legislative Drafting Manual.

This Act is the first leg of a constitutional amendment that will modernize the bail provisions within the Delaware Constitution and clarify the power of the General Assembly to define either certain offenses for which, or circumstances under which, pretrial release on bail may not be available. The current provision allowing that only “capital offenses” are not bailable first appeared in its present form in the Delaware Constitution of 1792. At that time, “capital offenses” included many more offenses than the term does today. For example, manslaughter, rape, robbery, burglary, and assaults with weapons were capital offenses, and therefore included as crimes for which a court could order pretrial detention. Thus, over time, other crimes that the Framers intended to include as those for which bail might be restricted no longer are. Today, a Delaware state court judge cannot order preventive detention in any non-capital case. Instead, the judge can only attempt to set the bail so high that a defendant cannot make it, which means that any defendant, no matter how dangerous and no matter the circumstance, can obtain release if the defendant can fund the bail—even if that defendant poses a certain flight risk or a known threat of harm to the public or to a specific person, such as a witness or victim. This Act is one step toward completing a pretrial release-detention continuum requiring specific evidence-based detention decisions that seek to maximize public safety and minimize pretrial detention for those less serious crimes for which it is not required. Upon enactment of the second leg of this constitutional amendment, § 12 of Article I of the Delaware Constitution as proposed will do all of the following: (1) Retain the express declaration of a general right to have bail set in a criminal case. (2) Provide that the crimes for which bail may be withheld are capital murder, where the evidentiary proof is positive and presumption of the accusation great, and other identified felony offenses determined by and under procedures prescribed by law where the evidentiary proof for the need of detention is clear and convincing. (3) Ensure that one condition precedent to bail being withheld in non-capital cases is a finding that no bail condition or combination of bail conditions other than detention will assure the safety of any person or the community, that the person will appear for future proceedings, or that the detention is necessary to prevent the person from obstructing or attempting to obstruct justice. This constitutional amendment, by itself, would not allow that a person charged with a non-capital crime could be held without bail. Rather, no person could be subject to a detention hearing in a non-capital case until the General Assembly revises Chapter 21 of Title 11 of the Delaware Code and the General Assembly and courts “prescribe by law” the specific felonies, circumstances, and procedures under which detention without bail may occur. With this change, though, Delaware can progress toward the type of modern bail system that has been increasingly adopted by our sister states through amendment of their state constitutions, when needed, and the development of statutory procedures that provide, in appropriate cases, pre-trial detention without bail. And this change does so by adopting the standards favorably recommended by authoritative sources including the National Conference of State Legislatures, the National Conference of Commissioners on Uniform State Laws, the National Center for State Courts, the American Bar Association, and the numerous state legislatures and court systems that have studied pretrial detention and retained or incorporated them in their own state constitutions and laws. Any legislation subsequently enacted or court procedures adopted under the passage of the second leg of this constitutional amendment would have to require individualized, fact-governed decision-making by any court considering preventive detention to pass muster under the United States and Delaware State Constitutions.

This resolution directs the Department of Health and Social Services to prepare reports on the Purchase of Care Program and directs the Department of Education to prepare reports on child care capacity.

Section 1 of the Act amends section 3534 of Title 12 to include, within the class of persons who may receive notice under the statute, designated representatives under section 3339 of Title 12 (representatives under section 3547 of Title 12 already being specifically included within section 3534). Section 2 of the Act expands, within existing section 3536(e) of Title 12, on the ability of a beneficiary of a charitable remainder trust to transfer the remainder interest to charity by assignment in addition to a release, and expands on the ability of a beneficiary of a QTIP trust to transfer an interest in the trust by assignment or other means to the next succeeding beneficial interest. Section 3 of the Act creates a new section 3536A in Title 12, similar in concept to the laws of other states, to permit a beneficiary of a trust to release (in full or in part) the interest, even if the beneficiary previously accepted the benefits of such interest (a situation not addressed by Chapter 6 of Title 12 of the Delaware Code (regarding disclaimers, which includes releases of nonfiduciary powers)), but subject to many conditions (and would overrule Smith v. Bank of Delaware, 219 A.2d 576 (Del. 1966) and Bank of Delaware v. Smith, 211 A.2d 591 (Del. Ch. 1965), but would be consistent with Shepard v. Burr, 87 A. 1020 (Del. Ch. 1913)). It should be further noted that: (i) while there is existing statutory authority that may be used to achieve the same outcome afforded herein, this statute provides a more efficient framework for releases of interests in trusts; (ii) a typical scenario that this statute is designed to resolve in a streamlined way involves a longtime income beneficiary of a trust who no longer wants or needs the income, and would like her interest to terminate so that her children may receive the remainder interest, which would not otherwise occur until her death; (iii) with death being a random event that could occur at any time, permitting a beneficiary to terminate her interest before her death does not run afoul of a trustor’s intent; and (iv) the language of subsection (f) of this new section 3536A was drafted to parallel that of section 502(b) of Title 25 of the Delaware Code, thereby reflecting concepts discussed in, for example, section 116 of the Bogert treatise. Section 4 of the Act amends section 3546 of Title 12 to conform its provisions regarding receipt of notice to those of section 3585 as changed under this Act. Section 5 of the Act: (i) clarifies that the bar of section 3585 of Title 12 applies against judicial proceedings; (ii) expands the class of those against whom that bar would apply to persons other than beneficiaries; (iii) defines when a person is deemed to have received a 120-day notice under section 3585 (in conformity with the aforementioned amendment to Section 3546 of Title 12 under this Act); (iv) provides that a person may waive the 120-day period to accelerate what would otherwise occur upon expiration of that period; and (v) clarifies that the limitation period of section 3585 does not expand the limitation period for claims against the estate or revocable trust of a deceased individual fiduciary. Section 6 of the Act provides an effective date.

This House Concurrent Resolution seeks to have both the House of Representatives and Senate consider amending their respective Rules , once the 152nd General Assembly assembles and convenes, for purposes of adding mandatory training, for all members, in evidence based implicit bias and cultural competency, similar to both Chambers’ current Rules in regard to sexual and workplace harassment.

Section 1 and 2. These sections defines “reproductive health services” for the Board of Medical Practice, the Board of Nursing, and Regulatory Council for Physician Assistants, and makes clear that physicians, physician assistants and nurses who perform, recommend, or provide reproductive health services, if such services are lawful in this State, do not engage in unprofessional conduct and cannot be disciplined for such services even if such services are illegal or considered to be unprofessional conduct or the unauthorized practice of medicine or nursing in another state. This section also authorizes the following to terminate pregnancy before viability: (1) A physician assistant with a collaborative agreement with an appropriately training physician; and (2) A certified nurse midwife or certified nurse practitioner who demonstrates knowledge and competency, including successful completion of a training or certification approved by the Board of Nursing. Section 3. This section prohibits a health care provider from disclosing communications and records concerning reproductive health services, but does provide exceptions including if such records are requested for the purposes of investigating a complaint against a health care provider and the records are relevant to such complaint or to if requested to investigate a claim of abuse and such records are relevant to such investigation. This section also provides protections and limitations against civil actions from another state relating to the termination of pregnancy. Such protections and limitations include the issuance of a summons for a criminal case or investigation, and the issuance of a subpoena for information or testimony relating to the termination of pregnancy. This section also creates a cause of action for persons against whom a judgment was entered in another state based upon allegedly providing, receiving, or helping another person to provide or receive reproductive health services that are legal in Delaware. This section allows the person to recover damages from any party that brought the original action that resulted in the judgment or tried to enforce it. The damages available are just damages resulting from the original action as well as costs, expenses, and reasonable attorney’s fees spent bringing the action under this section as permitted by the court. The cause of action is unavailable if no part of the acts that formed the basis for liability occurred in Delaware. It is also unavailable if the judgment entered in the other state is based on a claim similar to one that exists under Delaware law and: (1) is a claim brought by a or the patient’s legal representative for damages the patient suffered or from another individual’s loss of consortium with the patient; or (2) is a contract based claim brought or enforced by a someone with a contractual relationship with the person who is subject to the judgment. Section 4. This section limits non-fugitive extradition of someone for committing an act that results in a criminal charge for the termination of pregnancy in another state. Pursuant to this bill, a person may only be extradited if the acts for which extradition is sought are punishable under Delaware law if their consequences, as claimed by the other state, had taken effect in this state. Section 5. This section prohibits an insurer from increasing the premium or taking any adverse action against a health care professional or health care organization for performing or providing reproductive health care services that are lawful in this State and covers any medical professional who prescribes medication for the termination of human pregnancy to an out-of-state patient by means of telehealth.

Senate Bill No. 134 prohibits a food establishment from providing consumers with a single-service plastic coffee stirrer, cocktail pick, or sandwich pick or with ready-to-eat food or a beverage in polystyrene containers. SB 134 also prohibits food establishments from providing single-service plastic straws, unless requested by a consumer. Senate Substitute No. 1 for Senate Bill No. 134 creates the same restrictions as SB 134, but updates and corrects terms and definitions, and includes additional exceptions for both polystyrene foam food service packaging and plastic straws. Section 1 of SS 1 for SB 134 also makes technical corrections to § 122(3)u. of Title 16, the authority under which the Department of Health and Social Services regulates food establishments. Substantively, SS 1 for SB 134 differs from SB 134 as follows: 1. Defines the term "compostable" using the standards under the Federal Trade Commission's guides for the use of environmental marketing claims and as established by the American Society for Testing and Materials. 2. Revises the term "polystyrene", and how it is defined, to clearly include only polystyrene foam, and also include both processes by which polystyrene foam can be made. 3. Revises the definition of "polystyrene foam food service packaging" to exclude coolers or ice chests used for the processing or shipping of seafood and containers used to contain, transport, or package raw, uncooked, or butchered meat, poultry, fish, seafood, or eggs. 4. Adds the term "food" to the list of terms that have the meaning defined in the Delaware Food Code because the Delaware Food Code definition of "food" includes beverages. 5. Revises the restrictions on providing plastic straws by creating exemptions for plastic straws provided to patients or residents of hospitals or long-term care facilities and for plastic straws that are attached to pre-packaged goods, such as juice boxes. 6. Revised the penalty section to align with the current penalties under the Delaware Food Code. 7. Delays the effective date of Section 2 this Act until July 1, 2023.

This Act is the first leg of an amendment to the Delaware Constitution to ensure that every Delawarean is afforded personal reproductive liberty. The Delaware Constitution is our founding legal document stating the overarching values of our society. This amendment is in keeping with the values espoused by the current Delaware Constitution. The Preamble to the Delaware Constitution states: Through Divine goodness, all people have by nature the rights of worshiping and serving their Creator according to the dictates of their consciences, of enjoying and defending life and liberty, of acquiring and protecting reputation and property, and in general of obtaining objects suitable to their condition, without injury by one to another; and as these rights are essential to their welfare, for due exercise thereof, power is inherent in them; and therefore all just authority in the institutions of political society is derived from the people, and established with their consent, to advance their happiness; and they may for this end, as circumstances require, from time to time, alter their Constitution of government. Section 21 of Article 1 of the Delaware Constitution provides that, "Equality of rights under the law shall not be denied or abridged on account of race, color, national origin, or sex." The core value reflected in the Preamble and § 21 is that all people should be afforded all the benefits and protections bestowed by the government, and that the government should not confer special advantages on the privileged. The right to reproductive liberty is fundamental to the exercise of personal autonomy and involves decisions people should be able to make free from compulsion of the State. Enshrining this right in the Constitution is critical to ensuring equal protection and treatment under the law and upholding the right of all people to health, dignity, independence, and freedom. This Act would ensure that government does not create or perpetuate the legal, social, or economic inferiority of any class of people. This Act requires greater than a majority vote for passage because § 1 of Article XVI of the Delaware Constitution requires an affirmative vote of 2/3 of the members elected to each house of the General Assembly to amend the Delaware Constitution. Amending Delaware’s Constitution requires 2 pieces of legislation, referred to as “legs,” which are enacted in successive General Assemblies. This Act is the first leg of this amendment to the Delaware Constitution.

This Act continues work started with the passage of HB 222 to ensure blood lead tests for school, child care, and early intervention programs enrollment meet standards and allow for the efficient transmission of blood lead screen data to schools, child care facilities, and early intervention service providers to provide a better opportunity to assist children with different levels of lead exposure. The Act defines the requirement for both a 12-month and a 24-month screening for children enrolled in child care facilities, public and private schools, and early intervention programs while clarifying the failure to obtain a 12-month screening does not prevent enrollment for children who provide proof of a 24-month screening. The Act also establishes requirements making blood lead level data available to school nurses and special education coordinators.

This Concurrent Resolution recognizes September 2022 as "Prostate Cancer Awareness Month" in the State of Delaware