Legislative Updates - 20 February 2017

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Dear Friends:

This is GrassRoots’ fourth weekly legislative update of this year’s General Session of the Utah State Legislature.

At this time (four weeks into the session), there are about 700 numbered bills for this session. Here are some bills that we consider to be noteworthy, along with a discussion of the very important topic of jury trial.

Thoughts on jury trial and a good bill

The tradition of trial by jury holds a prominent position in American history, and in the protection of liberty throughout our history.

In the 1730s, John Peter Zenger was charged with libel because of his newspaper’s coverage of the colonial governor. It was generally accepted that Mr. Zenger was guilty of violating the libel “law” as written, but his attorney Andrew Hamilton argued directly to the jury that, since the newspaper coverage was true, they should acquit his client (which they did, in very short order).

When the Continental Congress decided to declare independence from Britain, one of the abuses given as cause for separation was: “depriving us in many cases, of the benefits of Trial by Jury. . .” (Declaration of Independence). Viewed in the light of the Zenger case, could the context of that abuse be any clearer? Trial by government is a foundation, even an affirmation, of despotism.

It makes sense, then, that the United States Constitution would have explicit jury provisions:

Article III, Section 2: “The trial of all crimes, except in cases of impeachment, shall be by jury. . . .”

Amendment VI in the Bill of Rights: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury. . . .”

(We should be mindful of a defendant’s right to jury trial in the Utah State Constitution: “In capital cases the right of trial by jury shall remain inviolate. In capital cases the jury shall consist of twelve persons, and in all other felony cases, the jury shall consist of no fewer than eight persons. In other cases, the Legislature shall establish the number of jurors by statute, but in no event shall a jury consist of fewer than four persons. In criminal cases the verdict shall be unanimous. . .” (Article I, Section 10).)

In Federalist No. 83, Alexander Hamilton nicely illuminates the understanding of the importance of jury trials at that time (late 1780s):

“The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government. For my own part, the more the operation of the institution has fallen under my observation, the more reason I have discovered for holding it in high estimation; and it would be altogether superfluous to examine to what extent it deserves to be esteemed useful or essential in a representative republic, or how much more merit it may be entitled to, as a defense against the oppressions of an hereditary monarch, than as a barrier to the tyranny of popular magistrates in a popular government. Discussions of this kind would be more curious than beneficial, as all are satisfied of the utility of the institution, and of its friendly aspect to liberty” (Federalist No. 83, Paragraph 12). Shortly thereafter, Hamilton adds: “[A]rbitrary methods of prosecuting pretended offences, and arbitrary punishments upon arbitrary convictions have ever appeared to me to be the great engines of judicial despotism. . . .”

Sometimes we may be dealing with “the tyranny of popular magistrates in a popular government.” It is worrisome, for instance, if a judge may, with a straight face, direct jurors to obey statutes as he alone interprets them (which may be in contravention of constitutional and natural law); such conduct should be viewed by jurors, and by all of us, as manipulation. (Also worrisome is when effective punishment may be meted out administratively, without any recourse to a jury at all.)

Consider the recent (2015) case of “Kevin McGill, a garbage collector in Sandy Springs, Georgia, [who was] sentenced to a total of 30 days in jail for violating the city's noise ordinance that states that ‘trash collection must be conducted between the hours of 7 a.m. and 7 p.m.’ He was cited one recent morning after starting work about 5 a.m.” ( http://www.ksl.com/?sid=33761560&nid= ). Apparently, this was his first such citation. Might this be a “manifest injustice” that could have been avoided by a jury with one or more jurors willing to acquit?

With a federal register in excess of 80,000 pages, abundant administrative rule-making in state government, and thousands of state and national statutory felonies, misdemeanors, and infractions, and local ordinances (many of which tend to be harder to comprehend than The Ten Commandments), is there not an abundant need for the sense of a jury that can detect, and act against, “manifest injustice” against a defendant?

We the People established justice and secured the blessings of liberty to ourselves and our posterity through the practical and peaceful mechanism of the jury. We should be vigilant in preserving jury trial and in avoiding jury tampering and manipulation.

HB332, “Criminal Procedure Revisions”, sponsored by Representative Roberts, would:

  • specify that “The jury shall be informed of: (a) the potential sentence and direct legal consequences of a guilty verdict; and (b) the jury's power to find a defendant not guilty when a guilty verdict would be manifestly unjust”; and
  • delete current codified language that the jury is “bound to follow the law as stated by the court.”

HB332 awaits consideration by the House Judiciary Committee.

Our liberties are under attack in many instances, and part of the problem is that judges and justices are almost (or not almost) viewed by many as the not-to-be-questioned gods of interpretation of law. Certainly judges should do their part in our system to enforce the constitutional law of land. But also legislators, law enforcement, and the people generally should be trying to uphold the constitutional law of the land as they understand it. And jurors should feel bound to follow the law as they (the jurors) understand it.

Furthermore, jurors have an over-riding duty to find a defendant not guilty when, in their best judgment, a guilty verdict would be manifestly unjust. Efforts by judges and attorneys, to manipulate juries against this duty, should be resisted. HB332 appears to be a well-calculated step to prevent jury manipulation. GrassRoots favors a “yes” vote on HB332.

Other bills catching our attention this week

HB306, “Public Safety Officer Privacy Amendments”, sponsored by Representative McKell, would specify that the name of a law enforcement officer involved in a critical incident “may not be released to the public by any public official or public employee conducting or participating in an official investigation of an officer-involved critical incident, or any person acting on behalf of a public official or public employee, until the official investigation is concluded” . . . except that the officer's name “shall be released not later than six months after the incident.”

HB306 awaits consideration by the House Law Enforcement and Criminal Justice Committee.

HB306 appears to make government less transparent. Also, it seems to provide for unequal treatment under the law, since a private citizen is not similarly shielded from having his name released to the public when he is involved in a critical incident. GrassRoots favors a “no” vote on HB306.

HB312, “Housing Pilot Program for Low-income Students”, sponsored by Representative Winder and Senator Howard Stephenson, would:

  • authorize, and describe the requirements of, a housing pilot program for low-income students;
  • provide a sunset date of July 1, 2021;
  • appropriate: to the Olene Walker Housing Loan Fund, as an ongoing appropriation from the General Fund, $250,000; and
  • appropriate: to the Department of Workforce Services -- Housing and Community Development, as an ongoing appropriation from the Olene Walker Housing Loan Fund, $250,000.

HB312 passed the House Economic Development and Workforce Services Committee 8-0 on February 16th, and awaits consideration by the full House.

We do not need a pilot program to pursue more social planning related to low-income student housing. We would benefit from less taxes being taken from the private sector for such social planning. GrassRoots favors a “no” vote on HB312.

Updated status on sales tax bills

There is a continued effort to increase the collection of taxes on purchases by Utah residents from out-of-state companies. When this is done by forcibly deputizing out-of-state companies to enforce, or to help enforce, Utah tax laws, this seems to us ill-advised and constitutionally questionable. We believe both SB83Substitute and SB110Substitute to be thus flawed.

SB83 was replaced by SB83Substitute, “Sales Tax Notification Amendments.” Sponsor is still Senator Harper. SB83Substitute would:

  • require that certain out-of-state companies (that do not collect and remit sales and use tax) with aggregate sales, in the previous calendar year, of more than $100,000 to Utah customers: a) report to the state: each customer’s name, billing and shipping address, and the dollar amount of each sale to that customer; and b) send each of their Utah customers making qualifying purchases of $500 or more “a statement that Utah law may require the Utah purchaser to report and pay the sales and use tax to the commission on the Utah purchaser's Utah sales and use tax return or individual income tax return”; and
  • provide for penalties (up to $10 per “failure” and up to $100,000 per seller per calendar year) and other means of enforcement for failure to comply with the notice and reporting requirements.

SB83Substitute passed the Senate Revenue and Taxation Committee 6-0 on February 17th, and is expected to be placed on the Senate 2nd reading calendar for consideration by the full Senate.

GrassRoots still favors a “no” vote on SB83Substitute.

SB110Substitute, “Sales Tax Collection Amendments”, sponsored by Senator Bramble and Representative Schultz, would require an out-of-state company, with annual sales of $100,000 or more to Utah residents, to collect sales taxes on purchases made by Utahns.

SB110Substitute passed the Senate 2nd reading 25-0 on February 17th, and awaits consideration on the Senate 3rd reading calendar.

GrassRoots still favors a “no” vote on SB110Substitute.

Updated status on other bills covered in earlier GrassRoots updates

HB19Substitute was replaced by HB19Sub2, “Civil Asset Forfeiture Reform Amendments.” Sponsors are still Representative Greene and Senator Howard Stephenson. HB19Sub2 is a similar bill to HB19Substitute and to the HB19 described in our weekly legislative update of January 30th, and still constitutes a good step in the direction of needed asset forfeiture reform.

HB19Sub2 passed the House 58-10 on February 17th, and awaits action by the Senate Rules Committee.

GrassRoots still favors a “yes” vote on HB19Sub2.

HB159 was replaced by HB159Substitute, “Amendments to Voter Registration.” Sponsor is still Representative Handy. Like HB159, HB159Substitute would still:

  • provide that an individual who applies for or renews the individual's driver license or state identification card will be registered to vote unless the individual opts out;
  • provide that an individual is not guilty of fraudulent registration if the individual is ineligible to register to vote but is inadvertently registered to vote under this bill.

HB159Substitute passed the House Government Operations Committee 5-3 on February 13th, and awaits consideration on the House 3rd reading calendar.

Voting is a serious privilege with serious consequences. Registration to vote should not be viewed as just another automatic occurrence when one visits the DMV for a driver license renewal. GrassRoots still favors a “no” vote on HB159Substitute.

HB178, “Good Landlord Amendments”, sponsored by Representative Brian King and Senator Bramble, would prohibit a municipality from requiring a residential landlord to deny tenancy to an individual based on the individual's criminal history.

HB178 was amended on February 14th, on a vote of 38-34, by the House, to specify that a municipality may still require a landlord to discriminate against an individual with a criminal history if “a halfway house, as that term is defined in Section 51-9-412, is located within the municipality. . . .” HB178, as amended, then passed the House 62-9 on February 14th, and awaits action by the Senate Business and Labor Committee.

Every landlord should be allowed the freedom to rent to whomever he or she wishes. GrassRoots favors a “no” vote on the previously described motion to amend HB178.

Without the previously described amendment, GrassRoots was favoring a “yes” vote on HB178. As amended, HB178 may still be a miniscule step in the right direction (in those municipalities without a specified halfway house), but there could be other issues and consequences of the amendment to consider. We are therefore re-evaluating our position on HB178.

HB253 was replaced by HB253Substitute, “Short-Term Rental Amendments.” Sponsor is still Representative Knotwell. Like HB253, HB253Substitute would still prevent a political subdivision from prohibiting:

  • a person from listing or offering a short-term rental on a short-term rental website; and
  • an owner-occupied short-term rental.

HB253Substitute passed the House Business and Labor Committee 13-1 on February 13th, and awaits consideration on the House 3rd reading calendar.

Property owners should be free to rent, or otherwise use, their property as they please. GrassRoots still favors a “yes” vote on HB253Substitute.

HB259 was replaced by HB259Substitute, “Duty to Retreat Amendments.” Sponsors are still Representative Maloy and Senator Dayton. HB259Substitute would amend existing statute to:

  • provide that a person is not required to retreat from an aggressor even if there is a safe place to retreat to; and
  • prohibit a trier of fact from considering whether a person who did not retreat from an aggressor acted reasonably.

HB259Substitute passed the House Law Enforcement and Criminal Justice Committee 6-4 on February 17th, and awaits consideration by the full House.

HB259Substitute would clarify Utah statute to avoid a situation in which aggressors might assume that their intended victims have a legal duty to retreat. GrassRoots still favors a “yes” vote on HB259Substitute.

SB29, “Utah Marriage Commission Amendments”, sponsored by Senator Christensen and Representative Edwards, would increase the marriage license fee by $20, while also offering a couple a $20 rebate if both parties complete premarital education or counseling that meets specific criteria.

SB29 failed the Senate 3rd reading 14-14 on February 13th, and appears dead for this session.

We would do better to leave pre-marital counseling to individuals, churches, and others in the private sector, and keep marriage license fees down. GrassRoots still favors a “no” vote on SB29.

SB115 was replaced by SB115Substitute, “Compulsory Education Revisions.” Sponsor is still Senator Anderegg. SB115Substitute would eliminate criminal penalties (Class B Misdemeanor) for a parent of a truant school-age child.

SB115Substitute passed the Senate Education Committee 5-0 on February 16th, and awaits consideration by the full Senate on the Senate 2nd reading calendar.

In a manner of speaking, SB115Substitute decriminalizes various parental actions and inactions that are no one else’s business. GrassRoots still favors a “yes” vote on SB115Substitute.

If you have any questions about these bills, GrassRoots’ position on these bills, or related matters, please contact either of us or any other member of the Board of Utah GrassRoots.

Sincerely,

Steve Stromness
Vice-Chairman, Bill Review Coordinator, Utah GrassRoots
steven.stromness@gmail.com
435-637-5248

Don Guymon
Chairman, Utah GrassRoots
donguymon@gmail.com
801-574-9461

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