Legislative Updates - 25 January 2021

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Dear Friends:

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

At this time (2 weeks into the session), there are about 440 numbered bills for this session on the Utah Legislature website. Here are some bills and issues that we consider to be noteworthy.

Asset Forfeiture and one bill of interest:

There is some history of abusive behavior toward property owners in Utah and across the United States. This has been enabled by badly-written asset forfeiture code that would seem contrary to our state and national constitutions. The idea of seizing and forfeiting property from rightful owners is so potentially abusive, even potentially facilitating an oppressive police state, that close attention to any proposed forfeiture legislation is warranted.

At GrassRoots, we would request that the Utah State Legislature work to improve Utah statutes relating to asset forfeiture according to the following considerations:

• Property should not be seized unreasonably (see United States Constitution, Fourth Amendment; Utah State Constitution, Article I, Section 14).
• Owners should not suffer forfeiture of property without due process of law, including the right to trial by jury (see US Constitution, Fifth, Sixth, and Seventh Amendments; UT Constitution, Article I, Sections 7 and 10).
• Punitive forfeiture should be reasonably proportional to the crime(s) for which an individual has been convicted (see US Constitution, Eighth Amendment; Utah Constitution, Article I, Section 9).
• Asset forfeiture proceeds should be directed to the control of a legislative body, and should not be directed to a law enforcement agency. (We believe there is danger of unnecessary conflict of interest, as well as distortion of law enforcement priorities, when seizing agencies are able to keep asset forfeiture proceeds.)
• Cooperation with federal law enforcement should not be conducted in ways that violate these principles. (We are currently of the opinion that UT asset forfeiture code is more respectful of property owner rights than is US asset forfeiture code.)

Here is one bill relating to asset forfeiture that, we believe, merits scrutiny this year:

SB98, “Asset Forfeiture Amendments”, sponsored by Senator Weiler, would, according to the bill’s long title:

• clarify provisions related to the seizure and forfeiture of property and contraband;
• address jurisdiction of a district court over seized property;
• provide, with certain exceptions, that seized property may not be transferred or shared with a federal agency or an agency of another state [GrassRoots note: we are still studying the text of SB98 on this topic; as we review lines 339-462, 1175-1178 we are still trying to understand how SB98 changes existing exceptions in Utah code];
• require that a disclaimer of seized property by an individual be knowing and voluntary;
• provide that law enforcement agencies have 30 days to process seized cash or negotiable instruments;
• require the cash or negotiable instrument be deposited into an interest-bearing account;
• amend provisions related to the retention of property for court proceedings;
• reduce the length of time for an agency to present a written request for forfeiture to a prosecutor;
• allow an agency or prosecuting attorney to release property to an innocent owner;
• prohibit the forfeiture of property seized upon the sole offense of possession of a controlled substance [GrassRoots note: see lines 748-750];
• permit grants to any agency involved in forfeiture activities regardless of whether the agency contributed to the State Asset Forfeiture Fund;
• require certification of asset forfeiture specialists by Peace Officers Standards and Training or Utah Prosecution Council; and
• make technical and conforming changes.

SB98 is a rather complicated bill, over 1500 lines long, with much deleted and added language, many cross-references to various sections of code, and repeal of a couple sections of code (amounting to about 5 pages). And we are still trying to understand its most important points and likely effects.

SB98 passed the Senate Judiciary, Law Enforcement, and Criminal Justice Committee 6-0 on January 26th, and awaits consideration on the Senate 2nd reading calendar.

We are concerned about SB98’s repeal of Sections 24-4-107 and 24-4-108, which provide for various protections for innocent property owners. All of these protections may be written into other sections of SB98 (and thus preserved), but we are still studying the bill to figure out if this is the case.

We support SB98’s prohibition on forfeiture of property seized upon the sole offense of possession of a controlled substance, in the belief that this practice has led to many cases of punitive forfeiture being disproportionate to the offense.

We support the idea of limiting or eliminating the transfer of seized property to federal agencies and other states, and are still trying to understand the effect of SB98 on this practice.

SB98 has been advertised as a compromise in which nobody got everything they might want. This is natural in the legislative process. As we study SB98, we are asking if a given change in the forfeiture code is an incremental improvement, or an incremental corruption, of Utah’s forfeiture code.

At this time, GrassRoots takes no position on SB98, and encourages a careful reading of the bill according to the principles previously mentioned.

Other bills catching our attention this week

HB132Substitute, “Sanitation Amendments”, sponsored by Representative Ballard and Senator Weiler, would:

• require a local health department to create an informational notice if the local health department does not annually inspect cosmetology facilities;
• require a cosmetology facility to post an informational notice in a visible area;
• authorize a local health department to impose a fine up to $500 for a cosmetology facility's failure to comply with the informational notice requirement; and
• require the Division of Occupational and Professional Licensing to inform licensed individuals of the requirement to post a notice in a cosmetology facility.

HB132Substitute passed the House Business and Labor Committee 7-6 on January 29th and awaits consideration by the full House.

If the Legislature judges that there is Probable Cause for regulating a cosmetology facility, including requiring posting of certain notices, then that is its prerogative. But we would discourage delegating too much of this content to local health departments (executive entities—see discussion of Separation of Powers in our weekly legislative update of January 25th).

Fines are punitive. That may be appropriate when the fine is reasonably proportional to the crime or negligence. But we are also concerned about the imposition of excessive fines on struggling small businesses and cosmetologists. GrassRoots tentatively favors a “no” vote on HB132Substitute.

HB133, “Law Enforcement Recording Release Amendments”, sponsored by Representative Wheatley, would:

• require the release of the recording of a law enforcement incident that resulted in death or bodily injury, or when an officer fired a weapon, within 10 days after receiving notice of the incident; and
• require the release of the recording of an incident that is the subject of a complaint or legal proceeding that alleges an officer's use of excessive force, within 10 days after receiving notice of the filing of the complaint or legal proceeding.

HB133 awaits consideration by House Law Enforcement and Criminal Justice Committee.

Under Utah Code Section 63G-2-701 (part of the Government Records Access and Management Act (GRAMA)), there is some discretion granted to political subdivisions in the making of their GRAMA policies. In some cases, this may be appropriate, but in the cases addressed in HB133, we should reasonably ensure all due transparency. GrassRoots favors a “yes” vote on HB133.

Updated status

HB60, “Conceal Carry Firearms Amendments”, was replaced by HB60Substitute, which passed the House, and was then replaced by HB60Sub2, which passed a Senate committee with a favorable recommendation. The sponsors are Representative Brooks and Senator Hinkins (with a long list of House co-sponsors). HB60Sub2 (the latest version of the bill) would:

• provide that an individual who is 21 years old or older, and may lawfully possess a firearm, may carry a concealed firearm in a public area without a permit; and
• provide for the transfer of unused funds in the Concealed Weapons Account to the Division of Substance Abuse and Mental Health for suicide prevention efforts.

HB60Substitute passed the House 54-19 on January 26th. Then HB60Sub2 passed the Senate Natural Resources, Agriculture, and Environment Committee 5-2 on January 29th, and awaits consideration by the full Senate.

Current code makes the carrying of a concealed firearm in a public area, without a permit, a class B misdemeanor, making possible a penalty of up to 6 months imprisonment. We believe this blatantly goes against the language of Utah State Constitution, Article I, Section 6 that: “The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the Legislature from defining the lawful use of arms.”

We believe 6 months in the slammer for the exercise of natural rights of self-defense is a bad idea. HB60Sub2 at least partially addresses this problem. GrassRoots favors a “yes” vote on HB60Sub2.

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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