Legislative Updates - 22 February 2016

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Dear Friends:

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

At this time (six weeks into the session), there are about 810 numbered bills for this session, and about 220 of these have already passed.

According to the Legislature’s website, 528 bills passed during the 2015 General Session. A like performance this year might mean that another 300 bills are passed in the last 4 days of the session, which ends on Thursday, March 10th. We hope this does not occur again; if it does, then we suspect many bills would pass without adequate reading, discussion, and understanding.

It would be well for us to remember James Madison’s description, in Federalist No. 62, of the evils of fast-changing laws:

The internal effects of a mutable policy are . . . calamitous. It poisons the blessings of liberty itself. It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulged, or undergo such incessant changes that no man who knows what the law is to-day can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known and less fixed?

Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising and the moneyed few, over the industrious and uninformed mass of the people. Every new regulation concerning commerce or revenue, or in any manner affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest reared not by themselves but by the toils and cares of the great body of their fellow citizens. This is a state of things in which it may be said with some truth that laws are made for the few not for the many. . . .

No government any more than an individual will long be respected, without being truly respectable, nor be truly respectable without possessing a certain portion of order and stability.

These timeless remarks by James Madison should be remembered by our state legislators as they are asked to vote on numerous bills during the last few days of the session. While some of these bills may be good, there is also something to be said for a mostly-unchanging, stable set of laws.

Separation of Executive and Judicial Powers, and an update on HB120Substitute, “DUI Enforcement Funding Amendments”

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. . .” (Federalist No. 47, 3rd paragraph).

If Madison was correct, then there is reason for us to be vigilant in preserving separation of legislative, executive, and judicial powers—a separation which is central to the United States Constitution, and which is emphasized as follows in the Utah State Constitution:

“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” (Utah State Constitution, Article V, Section 1).

In his discussion of separation of powers, Madison continued, quoting Montesquieu: “‘Were [the power of judging] joined to the executive power, the judge might behave with all the violence of an oppressor.’” (Federalist No. 47, 8th paragraph).

Are you guilty because the police officer says so? We think the answer is "not necessarily". After all, the police officer is not supposed to be the judge, nor is he supposed to be the jury.

And thus the need for due judicial process: “No person shall be deprived of life, liberty or property, without due process of law” (Utah State Constitution, Article I, Section 7; see also US Constitution, Fifth Amendment).

Also thus the need for jury trial when demanded by the accused: “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. In civil cases three-fourths of the jurors may find a verdict. . .” (Utah State Constitution, Article I, Section 10; see also US Constitution, Article III, Section 2 and the Sixth Amendment).

With these thoughts in mind, we move into an update on HB120Substitute.

HB120Substitute, “DUI Enforcement Funding Amendments”, sponsored by Representative Eliason and Senator Bramble, would:

• Increase, by $50, the administrative fee for impounding a vehicle due to an arrest, citation, or referral for administrative action for driving under the influence or reckless driving; and
• appropriate in fiscal year 2017: to the Department of Public Safety - Highway Safety as a one-time appropriation: from the Department of Public Safety Restricted Account, $423,200.

HB120 Substitute passed the Senate Judiciary, Law Enforcement, and Criminal Justice Committee 5-0 on March 2nd, and is likely to be considered by the full Senate as early as March 7th because of its placement on the Senate’s Consent Calendar.

As we have stated earlier, funding for DUI enforcement sounds like a proper use of public monies. Also, the proposed increase in the impound fee may be reasonable if due process is ensured. We suppose such sentiments contributed heavily to the unanimous passage of HB120Substitute by the House of Representatives, and by the Senate Committee.

The sentiment in favor of the bill was expressed about as follows by one committee member who said he told an opponent of the impound fee increase, “If you do not want to pay the increased impound fee, then do not drive drunk.”

On one level, this senator’s comment makes sense. But should that be the end of the discussion? What about due judicial process? Are you guilty because the police officer says so?

We are concerned that due process is lacking in the administrative impound fee system currently in Utah Code. So far, we have found no evidence that Utah Code (including the section to be amended by HB120Substitute) requires a conviction or guilty plea before the impound fee is assessed to the owner of the vehicle . . . or even that the impound fee is to be refunded if the accused individual challenges the accusation in court, and is acquitted.

In the absence of such a requirement of due process, we believe it would be imprudent to increase the (currently administrative) impound fee.

GrassRoots still favors a “no” vote on HB120Substitute as currently drafted.

Updated status on other bills mentioned in earlier GrassRoots updates

HB160Sub2 was replaced by HB160Sub3, “Justice Court Amendments”, and is sponsored by Representative Craig Hall and Senator Hillyard. HB160Sub3 would:

• require justice court judges in counties of the first and second class to have graduated from law school; and
• allow current justice court judges to remain in office until they leave; and
• permit certain political subdivisions with more than one justice court to initiate reductions in force.

HB160Sub3 passed the Senate Judicary, Law Enforcement, and Criminal Justice Committee 3-1 on March 2nd, and awaits consideration by the full Senate on the Senate’s 2nd reading calendar.

One objection raised to HB160Sub3 in the Senate Committee meeting was its possible skirting of the following language from the Utah State Constitution: “[N]o qualification may be imposed which requires judges of courts not of record to be admitted to practice law. . .” (Article VIII, Section 11).

We are not prepared to say that HB160Sub3 violates the letter of our state constitution (admittedly “law school graduate” and “being admitted to practice law” are not exactly the same), but there is reason to doubt that HB160Sub3 does violate the intent of this constitutional provision.

With all due respect to the training of an attorney, we still believe that it would be unwise to eliminate 90+% of our population from consideration for such positions of trust. Anyone (attorney or not) with a good command of the English language and reasonable degree of life experience and reasoning skills can understand our statutes, and our state and national constitutions; law school graduates do not have a monopoly on such qualifications.

As with prior versions of HB160, GrassRoots also favors a “no” vote on HB160Sub3.

SB59Substitute, “Antidiscrimination and Workplace Accommodations Revisions”, sponsored by Senator Weiler and Representative Rebecca Edwards, would modify the Utah Antidiscrimination Act by providing for “reasonable” accommodations for an employee for the known limitations related to pregnancy, childbirth, breastfeeding, or related conditions unless it creates an “undue hardship” for the employer.

SB59Substitute (as amended and passed by the House) passed the Senate 23-2 on February 29th, and awaits action by Governor Herbert.

With proposals like SB59, we should ask ourselves: “Do I believe that I, or my neighbor across the street, has moral authority (authority in the eyes of God) to employ force in this manner? Would this be a moral use of force by an individual?” If not, then neither is it a moral use of force by the people’s agent, the government.

GrassRoots still opposes SB59Substitute, and favors a veto of SB59Substitute by the Governor.

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

PS Do you want to contact a legislator? Go to le.utah.gov and click on “Legislators”.

Do you want to read and follow legislation yourself? Go to le.utah.gov and click on “2016 General Session Page” then click on “2016 Bills”.

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