Utah GrassRoots 2015 Legislative Report Addendum—SB214

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SB214, “Veterans Court”, sponsored by Senator Knudson and Representative Ray, would:

• authorize the Judicial Council to create veterans courts in each judicial district or a regional veterans court based on (a) veteran geographic populations; and (b) “the existence of a collaborative strategy between the court, prosecutors, defense counsel, corrections, substance abuse treatment services, and the United States Department of Veterans Affairs Veterans Justice Outreach Program to divert veteran offenders”;
• specify which veterans may be eligible for the court's consideration for participation in a veterans court and affiliated intervention programs;
• specify that “A veterans court program shall include continuous judicial supervision using a cooperative approach with prosecutors, defense counsel, corrections, substance abuse treatment services, and the United States Department of Veterans Affairs Veterans Justice Outreach Program as appropriate to promote public safety, protect participants' due process rights, and integrate veteran diversion treatment programs with the justice system case processing”;
• authorize the court to seek federal funding to assist with the veterans courts; and
• provide for participation by the United States Department of Veterans Affairs Veterans Justice Outreach Program.

We have several concerns with SB214.

We question the propriety of “authorizing” the Judicial Council to create courts (including “veterans courts”) given the constitutional requirement that “The judicial power of the state shall be vested in a Supreme Court, in a trial court of general jurisdiction known as the district court, and in such other courts as the Legislature by statute may establish” (Utah State Constitution, Article VIII, Section 1). It seems inappropriate for the Legislature to delegate to the Judicial Council the power to set up any courts. This should only be done by the Legislature.

We think that “continuous judicial supervision using a cooperative approach with prosecutors, defense counsel, corrections, substance abuse treatment services, and the United States Department of Veterans Affairs Veterans Justice Outreach Program” seems likely to:

• blur the separation of executive and judicial powers that should exist between a court and executive entities such as prosecutors (please see Notes 1 and 2 on separation of powers);
• interfere with the relationship between defense counsel and client, and even compromise the integrity of that relationship; and
• through a court’s “cooperative approach with . . . the United States Department of Veterans Affairs Veterans Justice Outreach Program”, increase federal control of our state in matters where state and local sovereignty should reign supreme.

Also, by “authorizing” a court to seek federal funding to assist with the veterans courts, that court is more likely to sacrifice our sovereignty. Former US Secretary of Agriculture Ezra Taft Benson expressed the opinion that “[N]o State or local government can accept funds from the Federal and remain independent in performing its functions, nor can the citizens exercise their rights of self-government under such conditions” (speech entitled “The Proper Role of Government”). Was Mr. Benson correct? Abundant evidence seems to indicate that he was.

We believe that SB214 creates unequal treatment under the law as veterans are treated differently from other citizens. Indeed, this looks like state-sponsored discrimination.

SB214 is wrong on principle, and seems likely to bring serious corruption into our court system. GrassRoots favors a “no” vote on SB214.

SB214 passed the Senate 25-0 on March 4th, passed the House 58-1 on March 12th, and was signed by the Governor.

Notes:

1. 1) Utah State Constitution, Article V, Section 1: “The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted.”
2. 2) Separation of legislative, executive, and judicial powers is an essential practice for avoiding tyranny. James Madison wrote: "The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. . . . [And, quoting Montesquieu, Madison continues:] Were [the power of judging] joined to the executive power, the judge might behave with all the violence of an oppressor" (Federalist No. 47, 3rd and 8th paragraphs).