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Open Political Caucuses – Comparing the Powell and Romero Bills

January 30, 2012 by Leave a Comment
public-meeting-2

The fallout of H.B. 477 continues up at the Utah legislature, with two bills this session — one from each side of the aisle — that would require parties to make their caucuses open to the public in certain circumstances.

One bill, H.B. 89, is proposed by Representative Kraig Powell, who promised to make this a focus of his efforts after publicly back-tracking in his original support of H.B. 477.  The other bill, S.B. 45, is being sponsored by Democratic Senator Ross Romero, currently a candidate for Salt Lake County Mayor.

I thought I’d take a couple minutes and compare the two bills, to see what the differences are.

H.B. 89 – Representative Powell

H.B. 89 is by far the simpler bill, providing simply that wherever a quorum of a “public body” is present at a meeting of a “political party, political group, or political caucus” where “legislative action” is being discussed, that meeting must be open to the public, though attendance can be regulated.

Here’s the actual text:

52-4-211.  Political caucus open to public — Conditions.

(1) A political party, political group, or political caucus is not subject to the provisions of this chapter except as provided in Subsection (2).

(2)(a) If a quorum of a public body is present at an assembly of a political party, political group, or political caucus, any discussion by the political party, political group, or political caucus of legislative action by the public body, whether the legislative action is pending, proposed, potential, or previously-passed, is open to the public.

(b) A political party, political group, or political caucus may regulate or limit attendance at a discussion described in Subsection (2)(a) if reasonable access to the discussion by the public is preserved.

A “public body” is defined in Utah Code Ann. § 52-4-103 as follows:

   (8) (a) “Public body” means any administrative, advisory, executive, or legislative body of the state or its political subdivisions that:
(i) is created by the Utah Constitution, statute, rule, ordinance, or resolution;
(ii) consists of two or more persons;
(iii) expends, disburses, or is supported in whole or in part by tax revenue; and
(iv) is vested with the authority to make decisions regarding the public’s business.

(b) “Public body” does not include a:
(i) political party, political group, or political caucus; or
(ii) conference committee, rules committee, or sifting committee of the Legislature.

A “quorum” is defined as “a simple majority of the membership of a public body,” though it “does not include a meeting of two elected officials by themselves when no action, either formal or informal, is taken on a subject over which these elected officials have advisory power.”

None of the other key terms in H.B. 89 are defined, but they are more self-explanatory.  The practical effect of the bill would seem to be almost exclusively limited to state legislative party caucuses because, although a non-partisan legislative body like a city council might qualify as a “public body,” in order to be subject to the provisions of this chapter, a majority of the members of the city council would have to assemble at a meeting of a political party, political group, or political caucus, where a legislative action (past, current, or future) was being discussed.  This seems unlikely, although it’s possible to imagine a scenario where, say, a (quorum) a simple majority of Salt Lake City council members decide to attend a Democratic or Republican Party meeting where the legislation efforts of the council would be discussed — if that happened, it seems that H.B. 89 would require that meeting to be open to the public.

S.B. 45 – Senator Ross Romero

Senator Romero’s bill is much more detailed that Representative Powell’s and reads as follows:

52-4-211. Meetings of legislative political caucuses.

(1) As used in this section:

(a) “Legislative party leadership” means:

(i) the speaker of the House of Representatives;
(ii) the president of the Senate;
(iii) the leader, whip, assistant whip, or manager of a legislative political caucus; or
(iv) the chair or vice chair of the Executive Appropriations Committee, the Senate Rules Committee, or the House Rules Committee.

(b) (i) “Legislative political caucus” means an assembly of legislators:

(A) to which belong a majority of legislators from the same registered political party in a chamber of the Legislature;
(B) called to assemble by a person authorized by the caucus to do so for the purpose of discussing policy, legislation, strategy, plans, or registered political party business; and
(C) on a day that the Legislature is conducting the annual general session, a veto-override session, or a special session.

(ii) “Legislative political caucus” does not mean:

(A) an assembly of legislators who are an informal or unofficial subgroup of a registered political party;
(B) an assembly of legislators who meet because the legislators share a particular political philosophy distinguishable from the legislative political caucus; or
(C) a meeting only attended by two or more legislative party leadership.

(c) “Registered political party” is as defined in Section 20A-8-101 .

(2) (a) A legislative political caucus is not required to comply with the provisions of this chapter except as provided in this section.

(b) A legislative political caucus shall be open to the public except in the circumstances described in Subsection (3).

(3) A legislative political caucus is not required to be open to the public during the portion of the caucus during which business is conducted relating to:

(a) a purpose described in Subsection 52-4-205 (1); or
(b) caucus or legislative party leadership elections.

Senator Romero’s bill would seem to open all official party legislative caucuses to the public that (1) are called by party leadership, (2) during the legislative session, (3) for the purpose of discussing legislation, plans, or strategy.  In that sense it is broader than H.B. 89, which would apply only to caucuses where a (1) a quorum was present, and (2) were held for discussions of legislative action.  As currently drafted, S.B. 45 would also be more narrow that H.B. 89 in that it would only apply to assemblies of “legislators” and would only operate when the legislature is in session.

However, all these distinctions may be more apparent than real, as it is unlikely that Representative Powell’s bill would have much (if any) application outside of the the legislative session, and Senator Romero’s bill contains a number of exceptions designed to allow the caucuses to be closed in specific situations (such as party leadership elections and the other many situations identified in Utah Code Ann. 52-4-205(1)) and to exempt specific groups, such as the Patrick Henry Caucus, for example, from the open caucus requirement.

Overall, the bills are similar enough in their effect, that’s it’s probably a wash between the two.  The more interesting fight will take place between those who will argue that it’s an impermissible limitation on the freedom of association to mandate closed caucuses at all.  I’ll be posting on that a bit later, if I can find the time.

 

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S.B. 11, S.B. 21: Department of Environmental Quality Amendments, Sen. Dayton

January 26, 2012 by Leave a Comment
utah-capitol-slider

After sending out my first tweet soliciting requests for legislation to analyze, I got this response from @UtahTeacher:

@ Request:SB 11. Must meet strict def. of standing, prsnl injury, etc or no environmental lawsuits? Who can sue? Drastic change?
January 24, 2012 9:54 pm via webReplyRetweetFavorite
@UtahTeacher
UtahTeacher

As I looked over S.B. 11, I realized that it was a close companion of the much longer (~6,000 lines!) S.B. 21.  So, I decided to analyze them together.  Here goes! (By the way, if anyone has another piece of proposed legislation they’d like analyzed from a legal perspective, let me know on twitter @curtbentley, or by email.)

Both S.B. 11 and S.B. 21 are proposed by Senator Margaret Dayton, and are the two component parts of an effort to redefine the responsibilities of the boards that currently oversee divisions of the Utah Department of Environmental Quality (“DEQ”).  S.B. 21 redefines the responsibilities of boards, primarily limiting them and giving more responsibilities to division directors appointed by the DEQ director, while S.B. 11 creates a specific process for challenging DEQ permit decisions that’s placed exclusively in the hands of the division directors and administrative law judges, rather than the boards themselves.

Although @UtahTeacher was clearly concerned about the effect that these bills might have on the right to bring environmental-related lawsuits, I could find nothing in the bills that either limited standing to the traditional test (personal injury in fact, causation, redressable) or in any way effected the existing rights of individuals or organizations to bring an environmental challenge in court.  Rather, these bills seem exclusively focused on redefining administrative responsibilities — which may also be very significant, though I’ll be frank and admit that I lack to background to make much of an intelligent assessment.

With that brief introduction out of the way, I’ll dive right in.  Advance warning — this isn’t the most exciting stuff in the world :)

S.B. 21: Department of Environmental Quality Board Revisions

S.B. 21 would directly affect the following divisions within the DEQ: (1) the Division of Air Quality, (2) the Division of Radiation Control, (3) the Division of Drinking Water, (4) the Division of Water Quality, and (5) the Division of Solid and Hazardous Waste.

Currently, each of the above divisions is governed primarily by a board, comprising anywhere from 11 (air quality, drinking water, and water quality) to 13 (radiation control, and solid and hazardous waste) members.  The members of each board are currently appointed by the governor and confirmed by the senate.

So far as I can tell, current law requires (for each of the above boards) that:

  • No more than 5 members of the board belong to the same political party (a bit hard to see how this happens when the boards all currently have 11 or 13 members);
  • A majority of the board members cannot derive a significant part of their income from individuals or businesses subject to permits issued by the board they serve upon; and
  • That board members disclose any potential conflicts of interest.

Currently, the law assigns to the boards themselves substantially responsibility for administering the various divisions.  For example, the boards themselves are responsible for:

  • Setting environmental standards germane to the subject matter of their board;
  • Holding hearings and making decisions on dispositive motions;
  • Preparing and developing comprehensive plan;
  • Accepting, receiving, and administering grants;
  • Enter into contracts on behalf of the division with third parties; and
  • Much more.

Under current law, the various board are assisted in their responsibilities by an executive secretary for each division, who is appointed by the executive director of the DEQ, but is subject to approval by the various boards themselves.

S.B. 21 makes some significant changes to the administrative structure.  First, board members would be nominated by the executive director of the DEQ, and subsequently appointed by the governor and confirmed by the senate (whereas now they are simply directly appointed by the governor and confirmed by the senate).  Second, the number of board members would be reduced to 9 in each case (I assume to make realistic the idea that only 5 members of the board can be from the same political party; also perhaps for cost savings).  Third, the boards’ authority and responsibilities would be significantly reduced in a number of ways.  Here are some examples:

  • Under S.B. 21, the boards’ authority to hold hearings would be limited to non-adjudicative hearings only (i.e., not hearings in any case where a decision will be made affecting a person’s rights);
  • Under S.B. 21, the boards would no longer be allowed to directly contract with third parties to provide services to the board’s division;
  • Under S.B. 21, the boards would no longer be tasked with preparing comprehensive plans or implementing such a plan.

In short, under S.B. 21, most of the duties previously assigned to the board are now assigned to division “directors,” which are appointed by the executive director of DEQ without any input from the board, and the boards would be little more than rulemaking and standard-developing bodies.  It seems very much like a legislative/executive division of power within an executive department.  I should note, however, that S.B. 21 would specifically assign to the boards one new duty:  the responsibility and authority to review any settlement entered into by a division director exceeding $25,000 — we can only assume this is designed to avoid another UDOT-gate like we saw back in 2010 (though this law obviously doesn’t apply to UDOT).

S.B. 11 is the second component to the wide-scale reorganization proposed by Senator Dayton, so I’ll turn to it now.

S.B. 11: Department of Environmental Quality Adjudicative Proceedings

Currently, the boards of the various divisions within DEQ respond directly to all “requests for agency action.” (i.e., public requests to approve permits  or take other actions).  S.B. 11, consistent with S.B. 21, would remove that responsibility from the board and assign it to the division directors in almost all cases.  Specifically, the board would no longer make decisions on requests for agency action to approve, renew, deny, modify, or revoke a permit, plan, license, approval order, or administrative authorization — this category of cases is referred to in the proposed bill as “permit review proceedings.”

Although I readily acknowledge a near total lack of expertise in this area, “permit review proceedings” seem to pretty much cover the whole ground of adjudicative actions taken by each division.  In other words, S.B. 11 would seem to effect a near total transfer of adjudicative responsibilities from the board to the division director.  And this would be consistent with S.B. 21, which seems to basically limit the board’s authority to hold hearings to non-adjudicative (i.e., informational/rulemaking) cases.  There are two caveats to this transfer.  First, it does appear that, under S.B. 11, the boards’ adjudicative authority would remain intact for requests for agency action not involving a “permit review proceeding” . . . but again, there just doesn’t seem to be much there aside left after that carveout except petition for rulemaking and new standards.  Second, the board has the authority (and obligation) to approve of disprove any settlement negotiated by the division director that exceeds $25,000.

Finally, it’s worth noting that S.B. 11 would create some unique standards for administrative review of permit proceedings, including strictly limiting who could appear before the agency in such a proceedings (only the person seeking a permit review decision, the person directly affected by the permit review decision, and a person specifically authorized by the agency to intervene) as well as what issues could be raised in a permit review proceeding (only those issues reflected in the record and properly preserved in proceedings below).  It would also give jurisdiction over appeals from permit review proceedings directly to the court of appeals.  But, significant as those changes are, they’re not the focus of the bill (at least in my opinion).  And again, from what I can tell, they do nothing to affect the existing ability of parties to directly bring judicial actions related to environmental concerns in district court.

Conclusion

I don’t really know what to say about S.B. 21 and S.B. 11 aside from tell you what they appear to do.  I don’t have enough experience in administrative law to say whether transferring authority and responsibilities away from boards is a good thing or not.  But it does appear to be a significant change and, for that reason, should get some careful consideration.

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H.B. 253 — Voter Registration Amendments, Rep. Powell

January 24, 2012 by Leave a Comment
vote-slider

Remember Representative Kraig Powell?

He made headlines last spring for his very public and deeply emotional change of position on H.B. 477 and his commitment to work for transparency in the future.  This year — at least according to the Utah legislature’s website — he’s poised to make good on that promise, having opened up a number of bill files dealing with legislative transparency:

But at least one of his initial efforts in this young legislative session deserves some more scrutiny.  H.B. 253, which Rep. Powell introduced in committee yesterday, would require county clerks to remove the names of voters from the county’s registration rolls in each of the following circumstances:

  1. The voter dies and his or her name is listed on the annual report of deceased residents from the Department of Health’s Bureau of Vital Records;
  2. A voter sends written confirmation to the county clerk that he or she no longer resides in the county;
  3. The voter requests, in writing, that the county clerk remove his or her name from the county’s registration rolls;
  4. The county clerk receives a notice that the voter has registered to vote in another state;
  5. The county clerk receives a notice that the voter has been convicted of (1) a felony in any state or federal court, or (2) an election-related misdemeanor (e.g., fraudulent voter registration) and determines that the voter’s right to vote has not been restored by applicable law; and
  6. After a voter has failed to respond to a written notice from the county clerk (sent to the address on his or her registration records), the voter fails to vote in the next 2 general elections.

Current law allows, but does not require, a county clerk to remove a voter’s name from the registration rolls for any of the first five reasons.  H.B. 253 would make it mandatory, which is in itself a significant change.  But the real meat of H.B. 253 is in the addition of the sixth basis for name removal.  And it seems poised to send a lot of flak Rep. Powell’s way.

Here’s how the sixth basis would operate.  H.B. 253 would require county clerks to send a notice to each person who fails to vote in two consecutive general elections, which are held once every two years.  So, for example, if I failed to vote in 2010 and 2012, the Davis County clerk’s office would be required, by law, to send me a notice informing me that my registration will be revoked if I do not respond to the notice or actually vote in one of the next two general elections.  Then, if I both (1) failed to respond to the notice, and (2) failed to vote in either of the subsequent two general elections (2014 and 2016), my registration would be automatically revoked.

Shortly after the legislative session closed yesterday, an article appeared in the Salt Lake Tribune in which an attorney for the ACLU was quoted as suggesting that H.B. 253 was illegal because it ran contrary to controlling federal law. Defenders of the bill responded, arguing that, not only is H.B. 253 consistent with federal law, but it was a good idea because: (1) the threat of being removed from the voter registration rolls will make people more likely to vote; (2) it makes voter fraud more difficult by removing the excess names from the state’s voter registration rolls; and (3) it will make Utah’s voting statistics more accurate, thus presumably making us look better to outsiders.

I wanted to take a couple minutes to respond to each of the arguments noted above and to offer a few of my own thoughts.

Federal Law

Although the Tribune’s article cites an attorney for the ACLU contending that H.B. 253 would violate the “National Voting Rights Act,” I believe she was actually referring to the National Voter Registration Act of 1993 (the “NVRA,” aka the “motor voter bill”).  While there is a “Voting Rights Act,” I don’t believe there is a “National Voting Rights Act” —  it all seems like understandable acronym confusion.

Contrary to the assertion of the ACLU’s attorney, my research suggests that applicable federal law (i.e., the NVRA) specifically allows for the removal of voters from the state’s registration rolls as contemplated by H.B. 253 (though I acknowledge my lack of expertise and the fact that it’s entirely possible I could be proven wrong).  Here’s the applicable section from the NVRA, codified at 42 U.S.C. 1973gg-6:

(b) Confirmation of voter registration

Any state program or activity to protect the integrity of the electoral process by ensuring the maintenance of an accurate and current voter registration roll for elections for Federal office -

(1) shall by uniform, nondiscriminatory, and in compliance with the Voting Rights Act of 1965 (42 U.S.C. 1973 et seq.); and

(2) shall not result in the removal of the name of any person from the official list of voter registered to vote in an election for Federal office by reason of the person’s failure to vote, except that nothing in this paragraph may be construed to a State from using the procedures described in subsections (c) and (d) to remove an individual from the official list of eligible voters if the individual -

(A) has not either notified the applicable registrar (in person or in writing) or responded during the period described in subparagraph (b) to the notice sent by the applicable registrar; and then

(B) has not voter or appeared to vote in 2 or more consecutive general elections for Federal office.

Based on this language, it appears to me that if H.B. 253 is nondiscriminatory (i.e. generally applicable), it is consistent with federal law.

Justifications — Encouragement, Fraud, and Our Image, Elevated

Rep. Powell suggested yesterday in committee that receipt of a notice threatening to revoke registration would actually prompt more people to vote.  Although it’s an interesting argument, he offered no evidence in support of his contention.  Furthermore, even assuming, arguendo, that his assertion is true, it strikes me that someone just voting once everyone 4 – 8 years to preserve their registration isn’t really the type of participation that we want to encourage.  And the idea that our elected officials believe that a legitimate way of getting people to vote is threatening to revoke their registration is, frankly, a bit concerning.

Representative Powell also contended that removing non-voters would make it more difficult for people to commit voter fraud.  This is certainly the case for people who have died  (who can already be removed under the current version of Utah’s law), but it’s hard to see how simply sending a notice to habitual non-voters would accomplish this objective.

Finally, the most ridiculous justification from Rep. Powell for H.B. 253 was that leaving the names of non-voters on the state’s rolls makes us look bad because it makes our percentage voting statistics seem lower than they actually are.  This may be true, but it’s ridiculous to suggest that burnishing our public image in this respect is worth the very real possibility that some of Utah’s previously unengaged voters will attempt to vote on election day only to find that their name has been removed from the voter registration rolls because they had not previously been civically engaged.  Furthermore, it seems that H.B. 253 would have just as much, if not more, potential for distorting Utah’s voting statistics.  How in the world do we get an accurate picture of Utah’s level of civic engagement by ignoring people who are eligible to vote but are, for whatever reason, not exercising the franchise?  The whole thing smacks of ostrich-style willful ignorance.  Regardless of whether eligible voters choose to participate in elections or not, they remain a part of the body politic.  As was noted by numerous others yesterday afternoon:  The right to vote includes the right not to vote.

One of the primary arguments of those critical with Utah’s caucus system is that it contributes to Utah’s alarmingly low levels of electoral participation.  There’s a part of me that wonders whether this bill is designed, at least in part, as an attempt to answer that critique by artificially inflating voter participation totals overnight, coincident with the GOP’s laudable push to get as many people out to caucus night as possible.

Some Closing Thoughts

It makes sense to occasionally review our voter registration rolls to ensure that they are accurate and up to date.  So let’s ensure that people who are clearly disqualified from voting in Utah are removed to discourage fraud and help us get an accurate idea of Utah’s level of civic engagement.  But it doesn’t do Utah or its voters any good to take away someone’s voter registration simply based on the fact that they haven’t voted.

 

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Quick Thoughts on the McAdams Statewide Anti-Discrimination Bill

January 20, 2012 by Leave a Comment
nondiscrimination-law-slider

I don’t have a lot of time this morning, but I did want to take some time to comment on Senator Ben McAdams’s proposal for a statewide anti-discrimination law modeled on the Salt Lake City ordinances passed in 2010.  The law would make it unlawful to discriminate in employment of housing on the basis of a person’s sexual orientation or gender identity.

Nationwide, we have various laws — such as Title VII of the Civil Rights Act, the Americans With Disabilities Act, the Age Discrimination in Employment Act, the Fair Housing Act and others — that prohibit discrimination based on certain criteria.  In Utah, we have the Utah Anti-Discrimination Act, which substantially duplicates Title VII and provides a state level remedy against discrimination in employment as well.  But though these laws protect Utah’s citizens from discrimination based on their race, color, national origin, gender, religion, and age, they do not prohibit discrimination in employment or housing based on a person’s sexual orientation or gender identity.

Although Senator McAdams’s bill is not yet available for review, we can surmise what it may look like based on the Salt Lake City ordinances themselves, as well as legislation proposed in previous sessions.  And if it reflects these prior proposals it will be designed carefully balance the rights of religious groups with the individual rights of same sex and transgendered persons.  The Salt Lake City ordinances are very cautious — they do not create a private right of action for affected persons, but do allow for injunctive relief and limited financial penalties against discriminating employers/housing providers.  We’ll have to see whether Senator McAdams’s bill goes a bit farther.

Aside from the broader argument that private property rights should entitle individuals to discriminate as they see fit, I hear two primary arguments against proposals like Senator McAdams’s, neither of which I believe have merit, and to which I respond briefly below.

Government Shouldn’t Legislate When There’s No Demonstrated Need

The first argument I hear advanced against non-discrimination ordinances is that there is no need for another separate statewide anti-discrimination law because there is no evidence that discrimination based on sexual orientation or gender identity is a problem.  Here’s a brief articulation of this argument, taken from the blog of a former member of the American Fork City Council about American Fork’s consideration of similar ordinances:

My Position: I cannot support both Non-Discrimination ordinances as written or amended. Nor will I vote in favor of a non-binding Resolution.
My Reasoning: (In no particular order. It is further non-exclusive. Please excuse repetitive arguments made in previous meetings).
No demonstrative need. (There has not been a documented case of discrimination in housing or employment in American Fork).Note: This fact was acknowledged in a November Work Meeting. Nothing has been submitted since. As a proponent of limited government; if there is no need, don’t legislate.

. . .

As an attorney, I get calls on a regular (though infrequent) basis from people who wonder what their rights are as a victim of discrimination or harassment based on their sexual orientation (or people calling on behalf of friends and family).  I tell them that, unless they live or work within the municipal boundaries of a city that has passed a non-discrimination ordinance (e.g., Salt Lake City or Ogden), they are essentially out of luck.  It is, in my opinion, disingenuous to claim there is no need for an anti-discrimination ordinance, based on the absence of documented reports of discrimination, when there is currently no legal remedy for this type of discrimination for the vast majority of Utahns.

But I think there is a more fundamental problem with this first argument.  And that is that Senator McAdams’s proposal is at least as much about creating a remedy as solving a problem.  There may be a widespread problem in Utah with discrimination based on sexual orientation and gender identity, or there may not be.  But there should be a remedy for people adversely affected when it happens.

Furthering the Gay Rights Agenda

The second argument I hear advanced against non-discrimination ordinances is that they are simply a tool for furthering the gay rights agenda, the ultimate goal of which is nationwide gay marriage.  Here’s a snippet from the blog of Representative Jeremy Peterson:

[A] survey shows overwhelming support for an anti-discriminatory law.  I think this reflects my perception.  Everyone thinks it’s the law already because that is how people already behave.

Also, to put further support behind this bill and others that are sure to follow, the survey asks if Utah is perceived as being fair and respectful of gay and transgendered folks.  What is interesting about this is that it does not ask if Utah is fair and respectful but asks if other people think it is perceived as such.  So the question is like me asking: What do you think your sister thinks about you? Not: What do you think of yourself.  Interesting way to ask the question.  Anyway, the majority say we don’t think others perceive us well.  Is this just more of the usual Utah-peculiar-people-self-conciousness?  I bet that this score would be high regardless of the subject matter.  You could ask: Do you think outsiders think Utahn’s are strange?  Of course we think they do.  Perhaps we should keep that in mind while interpreting these survey results.

I will let you review the rest of the survey.  But one thing is certain, expect to see more legislation to push forward the agenda of the gay and lesbian community.  Clearly, encouraged by these survey results, the LGBT community feels that now is the time to strike to push their own agenda forward.   For instance, today’s Salt Lake Tribune reports about an openly gay Democratic colleague of mine who is pushing for insurance benefits for cohabitating adults of any sexual orientation.  I am not especially excited about this particular measure.

Of course, the ultimate prize is to somehow conquer public opinion and legalize same-sex marriages at the Federal level. Like any experienced Cajun chef knows, you don’t throw a frog in a boiling pot.  Frogs are best cooked slowly and warmed to boiling degree by degree.  For the LGBT community, that is done one state and one statute at a time.

To the extent the gay and lesbian community has an agenda, it’s simply to obtain the equal treatment under the law that they believe they are entitled to.  Independent of whether this somehow leads to the statutory or constitutional legalization of same sex marriage, outlawing discrimination against same sex individuals in their employment and housing is a victory in and of itself; it’s more than just a component part of a “nefarious” frog-killing strategy.

Now, to be fair to Representative Peterson, it appears that despite his view of how Senator McAdams’s proposal fits into the broader context of the gay rights movement, he is leaning toward supporting a statewide anti-discrimination law because he believes it’s already consistent with the beliefs and practices of the majority of Utahns.  But the problem with his post is that it suggests that people who are opposed to same sex marriage should also be skeptical of a law that prevents and employer from firing someone because they are gay, or a landlord from evicting a gay tenant because he or she doesn’t want them in an apartment complex.  Of course everyone is going to have their own opinions on the propriety or constitutionality of laws prohibiting same sex marriage.  That debate can continue, but it shouldn’t be the focus of the debate over Senator McAdams’s proposal, and the strong feelings that exist regarding traditional marriage shouldn’t cloud our consideration of a bill that seems, to me, anyway, to be a no-brainer.

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Montana Supreme Court Thumbs its Nose at Citizens United, Upholds Montana Law Prohibiting Corporate Contributions

January 2, 2012 by 2 Comments
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In a bolt from the blue last Friday, the Montana Supreme Court issued its decision in Western Tradition Partnership, Inc. v. Attorney General, pushing back against the United States Supreme Court’s decision in Citizen United v. Federal Election Comm’n.  In Western Tradition Partnership, the court interpreted Citizens United to allow for Montana’s prohibition on corporate contributions for candidates because of Montana’s unique history and susceptibility to corruption from corporate money.

It’s a decision bound to generate a lot of buzz and have a lot of populist appeal.  It’s also a ruling that runs completely contrary to the understandings of everyone — except, apparently, five of the seven members of the Montana Supreme Court — about what Citizens United meant and what it did.  I’m sure it would shock Justice Stevens to know his concerns about the Supreme Court’s majority opinion in Citizens United were vastly overstated; after all, why all the worry when states can simply opt out by judicial decision??!!

Immediately upon learning about the ruling, I went and downloaded the full copy and started reading.

Despite headlines to the contrary (e.g., “Montana Supreme Court Rules that Citizens United Does Not Apply in Montana“), the Montana Supreme Court’s decision was actually based on its own interpretation and application of the rule of law set down in Citizens United.  State supreme courts, as well as other inferior federal courts, do this kind of thing all the time.  Whenever the United States Supreme Court sets down a rule, it does so in the context of a specific case.  So, courts looking to apply that rule to another case, with a different set of facts, have to determine if there are factual distinctions that would justify a different result, even given the application of the same rule.

The Montana Supreme Court’s reasoning goes something like this (for a more pithy version, check out Marco Brown’s comment here):  In Citizens United, the United States Supreme Court determined that the challenged FEC rules should be struck down because there was not a sufficiently compelling interest supporting them.  But in Montana — a rural state with a small population, proud history of cheap, grassroots campaigning, susceptibility to large energy and mineral extraction corporations, and a long history of corruption — there is a greater interest that is sufficiently compelling to uphold a ban on corporate contributions.  In addition, Montana elects its judges, and the potential for corporate domination of judicial elections is another factor that enhances Montana’s interest vis-a-vis the ones considered and rejected by the United States Supreme Court in Citizens United.

Its an approach to the question that’s theoretically legitimate.  Indeed, if one believes that strict scrutiny should not be “strict in theory, but fatal in fact,” there should be some set of facts creating an interest sufficiently compelling that could be served by a narrowly tailored statute — right?

The trouble with the Montana Supreme Court’s approach is that it’s an approach that the United States Supreme Court expressly rejected last year, at least in the context of corporate political speech.  From the majority opinion in Citizens United:

We return to the principle established in Buckley and Bellotti that the Government may not suppress political speech on the basis of the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations (emphasis added).

Despite this unequivocal and unusually clear statement, the Montana Supreme Court persisted in its contention, that the United States Supreme Court wasn’t really talking about government in small-population mineral-rich rural states like Montana.

Western Tradition Partnership will (and should) be quickly reversed on certiorari appeal for the reasons set out by the primary dissenting Justice, James C. Nelson:

Unquestionably, Montana has its own unique history. No doubt Montana also has compelling interests in preserving the integrity of its electoral process and in encouraging the full participation of its electorate. And Montana may indeed be more vulnerable than other states to corporate domination of the political process. But the notion argued by the Attorney General and adopted by the Court—that these characteristics entitle Montana to a special “no peeing” zone in the First Amendment swimming pool—is simply untenable under Citizens United.

Admittedly, I have never had to write a more frustrating dissent. I agree, at least in principle, with much of the Court’s discussion and with the arguments of the Attorney General. More to the point, I thoroughly disagree with the Supreme Court’s decision in Citizens United. I agree, rather, with the eloquent and, in my view, better-reasoned dissent of Justice Stevens. As a result, I find myself in the distasteful position of having to defend the applicability of a controlling precedent with which I profoundly disagree.

That said, this case is ultimately not about my agreement or disagreement with the Attorney General or our satisfaction or dissatisfaction with the Citizens United decision.  Whether we agree with the Supreme Court’s interpretation of the First Amendment is irrelevant. In accordance with our federal system of government, our obligations here are to acknowledge that the Supreme Court’s interpretation of the United States Constitution is, for better or for worse, binding on this Court and on the officers of this state, and to apply the law faithful to the Supreme Court’s ruling.

Granted, there are some in the legislative and executive branches of government who would call—and, in fact, have called—for Montana to thumb its nose at the federal government, to disregard federal law, and to boldly ignore the Supremacy Clause. Regardless of those views, however, all elected officials in Montana—legislative, executive, and judicial—are sworn to “support, protect and defend the constitution of the United States.”  Obviously, this means in accordance with the Supreme Court’s interpretations of the United States Constitution. Thus, when the highest court in the country has spoken clearly on a matter of federal constitutional law, as it did in Citizens United, the highest court in Montana—this Court—is not at liberty to disregard or parse that decision in order to uphold a state law that, while politically popular, is clearly at odds with the Supreme Court’s decision. This is the rule of law and is part and parcel of every judge’s and justice’s oath of office to “support, protect and defend the constitution of the United States.” In my view, this Court’s decision today fails to do so.

There are, unquestionably, discomforting realities that accompany unlimited corporate political speech.  One can easily understand the frustrations of the majority Justices, feeling as though their state’s political process is being dragged back to 1900 by a panel of conservative United States Supreme Court Justices that simply don’t understand the opportunities for distortion in the political process that accompany unfettered corporate speech in a sparsely populated rural state.

And maybe they’re right.  But that doesn’t give them license to ignore the Constitution when the Supreme Court has spoken clearly on the matter.  Perhaps the greatest irony of the majority opinion is the fact that it forcefully expresses concern for the potential distorting and corrupting effects that corporate speech might have on the Montana’s elected judiciary.  Based on this opinion, it seems as though an elected judiciary’s understandable, though misguided, efforts to avoid Citizens United may themselves be causing the same kind of distortion.

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H.B. 56 — Condominium Amendments, Rep. Litvack

January 2, 2012 by Leave a Comment
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*Note: this is an analysis of H.B. 56 as proposed on January 2, 2012, and the bill may have been amended since that time.

Alternative dispute resolution methods — especially mediation and arbitration — seem to be becoming more and more popular with our representatives up at the state legislature, whether as tools for modest tort reform, ways to open up the dispute resolution process to those who might be priced out of invoking the full judicial machinery, or as methods for conserving judicial resources.

This session, Representative David Litvack is proposing legislation that would extend the arbitration services of the legislatively-created Office of the Property Rights Ombudsman to dispute between condominium owners and their associations.

Currently, the Office of the Property Rights Ombudsman is tasked with advising property owners regarding takings (eminent domain) and land use issues.  It is authorized to:

(a) develop and maintain expertise in and understanding of takings, eminent domain, and land use law;
(b) assist state agencies and local governments in developing the guidelines required by Title 63L, Chapter 4, Constitutional Taking Issues;
(c) at the request of a state agency or local government, assist the state agency or local government, in analyzing actions with potential takings implications or other land use issues;
(d) advise real property owners who:
(i) have a legitimate potential or actual takings claim against a state or local government entity or have questions about takings, eminent domain, and land use law; or
(ii) own a parcel of property that is landlocked, as to the owner’s rights and options with respect to obtaining access to a public street;
(e) identify state or local government actions that have potential takings implications and, if appropriate, advise those state or local government entities about those implications; and
(f) provide information to private citizens, civic groups, government entities, and other interested parties about takings, eminent domain, and land use law and their rights and responsibilities under the takings, eminent domain, or land use laws through seminars and publications, and by other appropriate means.

Representative Litvack’s bill would add to the following to the Office of the Property Rights Ombudsman’s list of responsibilities:

(g) advise a condominium owner who has a legitimate potential or actual dispute with the owner’s condominium association involving the owner’s condominium unit.

A “legitimate actual or potential dispute” is defined as a dispute “concerning a matter of greater than trivial significance” that arises “from allegations that, if true, would show that the condominium association has taken or is taking action that is contrary to state law or to the declaration, bylaws, or other documents governing the association.”  ”[T]rivial significance” is not defined in the statute, but it’s probably safe to assume that we’re talking about a dollar amount threshold that will be defined in practice by the Office of the Property Rights Ombudsman itself (I didn’t see any provision authorizing the adoption of implementing regulations in the proposed bill).

In addition to providing advice about legitimate disputes between a condominium owner and a condominium association, H.B. 56 would empower the Office of the Property Rights Ombudsman to initiate binding arbitration between a condominium owner and a condominium association if: (1) the condominium owner requests it, (2) the dispute between the condominium owner and the condominium association is “legitimate,” and (3) the Office of the Property Rights Ombudsman determines that mediation or arbitration of the dispute is “otherwise appropriate.”

As you can see, there’s lots of wiggle room built into the mediation/arbitration provisions of Representative Litvack’s bill.  The “otherwise appropriate” language seeming allows the Office of the Property Rights Ombudsman full discretion in picking and choosing which cases it will arbitrate and which ones it won’t (though it is required, if it denies arbitration, to send a letter to the condominium owner explaining the reasons for the denial).  Even so, a statutory arbitration option can be quite a powerful tool for property owners — that majority of whom would almost certainly be financially prohibited from pursuing any significant claim through the judicial system.  This is especially true where the requesting party is not obligated to pay for the statutorily mandated arbitration.

Representative Litvack’s bill proposes to fund the mediation and arbitration services provided by the Office of the Property Rights Ombudsman by creating a Condominium Fund that is funded by a mandatory annual registration fees imposed on condominium associations of $2 per unit.  All condominium associations are required to pay the fee, regardless of whether they have nonprofit status or not.  Failure to timely pay the fees as required prevents the condominium association from imposing or enforcing any lien on a condominium unit until the fees are paid (lawyers — are you paying attention to this potential defense?).

I don’t really have much commentary on H.B. 56, as I don’t have the experience or background with the Office of the Property Rights Ombudsman or condominium law to intelligently comment on its merits.  So, even more than usual, I’d love some input on this one.

Good idea?  Bad idea?  Have at it!

 

Filed Under: Bill Summaries, Law, News Tagged With: , , , , , , , ,