utah legislature

John Swallow’s Attempt to Intimidate the Utah Legislature

June 15, 2013 by Curt Bentley 1 Comment

Sometimes, when practicing as a lawyer, the most difficult arguments to respond to are the ones that are so ridiculous that you have a hard time even fathoming what to say.

I feel like John Swallow put me in that position last night, when the guys at Utah Political Capitol released a letter from John Swallow’s attorneys to John Fellows, the general counsel of the Utah legislature, on the subject of Swallow’s potential impeachment.

The substance of the letter tracks what John Swallow has been telling any (perceived) sympathetic or wavering ears lately: that there is no legal basis upon which to impeach him because he hasn’t been charged with or convicted of a crime and any other alleged ethical lapses occurred prior to him assuming the office of Attorney General.

The arrogance of this move astounds me — not just because the argument is obviously incorrect, which it is. I’m astounded because this is such an insult to the legislature, the courts, and the people of this state. It’s the very definition of refusing to accept responsibility, acting as a bully, and claiming to be above the law.

I try not to engage in hyperbole. But I’m blown away by this. And it’s got me ticked off.

Swallow’s letter (which he clearly wanted to get in the hands of legislators prior to their meeting on impeachment this coming Monday) was apparently written in response to the following statement by Mr. Fellows:

“Because impeachment is constitutionally vested in the legislative branch, courts have generally declined to interfere in the process, including declining to second guess the legislative branch on the meaning and scope of the terms ‘high crimes, misdemeanors, or malfeasance in office.’”

John Swallow doesn’t like that language because it suggests to legislators that, due to the principle of separation of powers, courts are not likely to second-guess their impeachment decision. That’s true, and for good reasons that I’ll talk about below.

But it’s bad news for Swallow, who wants to initimidate legislators into refusing to impeach on the fear that they’ll be censored for overstepping their authority by the Utah Supreme Court.

The Letter.

So John Swallow has asked his attorneys to respond, and in this letter they go on to assure the legislature’s general counsel that “[w]e have researched Utah law on the grounds for impeachment” and ofer to “share the results of that research in hopes that the legislature will recognize that any such proceedings under the circumstances presented here, are unwarranted.” (PS — I don’t blame Swallow’s lawyers, who are just doing their job, for any of this.)

Here’s what Swallow’s attorneys say:

“The Constitution of Utah, Article VI, Section 19, governs the impeachment of Utah State officers, including the Attorney General: ‘[t]he Governor and other State and Judicial officers shall be liable to impeachment for high crimes, misdemeanors, or malfeasance in office.” . . . Mr. Swallow has not been charged with or convicted of any crime — and certainly not any high crime or misdemeanor. The question is, whether or not, under Utah law, there is any credible argument that Mr. Swallow has committed “malfeasance in office” and whether the facts and circumstances at this point provide a basis for impeachment proceedings.”

Swallow’s attorneys simple waive away the “high crimes and misdemeanors” language with the statement that “Mr. Swallow has not been charged with or convicted of any crime — and certainly not any high crime or misdemeanor.”

And so they don’t examine that further (more on that below). Instead, they focus solely on what they define as “[t]he question“: whether John Swallow has committed “malfeasance in office.”

Despite acknowledging that “there are no reported cases involving legislative impeachment in Utah” (Translation: they admit that the Utah Supreme Court has never defined the extent of the legislature’s authority to impeach because the legislature has never impeached anyone before) Swallow’s attorneys go on to cite two cases involving the impeachment of a County Auditor and a Mayor in a judicial proceeding under authority delegated from the legislature by statute.

Let me summarize the opinions for you.

State v. Jones.

State v. Jones involved an attempt, initiated in 1965, to impeach the Salt Lake County Auditor solely on the basis that he had failed to file a tax return in 1959. The whole basis of the complaint was simply that the auditor had committed a misdemeanor under federal law by not filing the return. There was no allegation of fraudulent or improper motive; simply that the auditor had failed to file a return.

The Utah Supreme Court reasoned as follows:

If it had been intended that removal from office should result from committing just any crime, including all misdemeanors, that could have been achieved by simply stating the generality: that an official could be removed for any crime. . . . .

The term “high crime” as used in statutes such as this is generally understood to mean not only a serious offense, but one in which there is harm or injury directed against other persons and is thus a violation of the basic mores of society, e.g., robbery, burglary, larceny, embezzlement or some crime of a character which involves such moral turpitude or is so offensive to accepted standards of honesty or integrity that one guilty of such a crime is unfit for a public trust and should therefore be removed from public office. Considering the terms of this statute together in context and in the light of its purpose, it seems only reasonable to suppose that for a misdemeanor to work a forfeiture of office it should partake somewhat of the same character. This is necessarily so because it can hardly be credited that it was intended that a public official should be removed from office for any failure to comply with any requirement of the law down to jaywalking, improper parking, or spitting on the sidewalk, whether related to his conduct in office, or to his qualifications for it or not.

There are various considerations which have a material bearing on the question whether the offense here charged is of such nature that one guilty of it should be deemed unfit for public office within the intent of this statute. One . . . is that this offense does not include any imputation of falsification or fraud with respect to the defendant’s income tax, so that particular aspect of moral wrong is not present. Nor does it involve any harm or injury directed against any other person and is thus not an offense malum in se, that is, inherently and essentially evil or immoral. . . . .

We do observe that it is not our purpose or desire to condone or justify the defendant’s dereliction, nor to minimize the importance or the necessity of citizens filing their income tax returns on time and paying taxes justly due. It is of course desirable for everyone, especially public officials, to conform to the law in all respects, and in fact to live exemplary lives. But unfortunately public offices must be staffed with people beset with human frailties and we must deal with them as such. That the defendant did not live up to an exemplary standard is not to be questioned. But upon the basis of the various considerations set forth herein, it is our conclusion that the offense he committed is not shown to be within the class of crimes which it was intended under our statute that guilt thereof would demonstrate such a lack of honesty, integrity or moral character as to render one unfit for public office and to compel its forfeiture.

And now let me quote in full the language that Swallow’s attorneys quote only in part:

Underlying the problem here dealt with, and supporting the conclusion we have reached, is the principle, fundamental in our democracy, that the privilege of choosing and electing public officials, and repudiating them if and when they so desire, belongs exclusively to the people; and that neither the courts nor any other authority should be hasty to encroach upon that right. There could be no more certain move toward the exercise of autocratic control and the disruption of our greatly valued balance of power than for one branch of the government to usurp prerogatives not belonging to it. Out of our Constitutions, Federal and State, and the historical development thereon, there is reposed in the courts the responsibility of passing judgment upon the actions of public officials and the functions of the departments of government. Both experience and wisdom teach that the greater the power the greater the duty of exercising forbearance in its use. An awareness of the dangers that could come from courts arrogating to themselves arbitrary powers emphasizes the necessity of approaching such matters with caution and with judicial restraint; and of refusing to interfere with the orderly processes of government except under circumstances where it is clearly apparent that the legislative mandate or constitutional provision requires it to be done.

Before I analyze this opinion, I want to emphasize again that this is not an interpretation of the Utah Constitution. This is an interpretation of authority delegated by the legislature to impeach by statute. I’m only analyzing it because Mr. Swallow’s attorneys are relying on it.

But, putting aside that the Jones and Madsen cases don’t govern Mr. Swallow’s situation, at least three things are clear from this opinion. First, the Utah Supreme Court views the purpose of the impeachment as expelling an officer for actions that “demonstrate such a lack of honesty, integrity or moral character as to render one unfit for public office and to compel its forfeiture.” Second, the phrase “high crimes [and] misdemeanors” means something different from “charged with and convicted of a crime,” otherwise the commission of a federal misdemeanor would have been a basis for impeachment. Third, it is clear from the opinion that it is the Courts that are (and should be) reluctant to aggregate to themselves authority to impeach. The legislature is constitutionally tasked with the obligation and given the authority to act when appropriate and need not (and should not) exhibit the same reticence with respect to overstepping authority.

Madsen v. Brown.

The second case cited by Swallow’s attorneys purporting to define “malfeasance in office” is Madsen v. Brown, which involved the impeachment of the Mayor of Grantsville for shooting a dog. In the Madsen case, the impeached Mayor acknowledged shooting the dog, but claimed that it didn’t constitute “malfeasance in office” because it didn’t occur while he was performing an official duty of his office as Mayor. The Court reasoned as follows:

Appellant’s arguments focus on the interpretation of the requirement that the acts or omissions relate to the duties of the office. He contends that in order to establish the offense of malfeasance in office, the acts or omissions must occur in the course of some specified official duty as defined by statute or ordinance.

The standard urged by appellant does not coincide with the commonly understood meaning of the term “malfeasance in office” or the intent of removal statutes to protect and preserve the office and to free the public of unfit officers.

There is a range of conduct that can occur while an officer is acting under color of office, but outside any specified official duty as defined by statute or ordinance that sufficiently relates to the duties of office so as to taint the office itself or establish that a particular officer is unfit to retain the public trust. This range of conduct is included in the commonly understood meaning of malfeasance in office. R. Perkins, Perkins on Criminal Law 487 (2d ed. 1969) states that malfeasance in office can occur when an officer exercises official duties or acts under color of office. The term “under color of office” is further defined in R. Perkins, supra, at 483: “The act of one who is an officer, which act is done because he is an officer or because of the opportunity afforded by that fact, is under color of his office.”

The object of the requirement that the act or omission relate to the duties of the public office is to ensure that an official is not removed for malfeasance in office when the alleged wrongful acts or omissions occurred while the officer was acting in his private capacity as opposed to his capacity as a public officer. This requirement has not been interpreted to preclude removal where the official was acting in his public capacity outside specifically defined duties of his office. The question as to whether the alleged misconduct occurred while the accused was acting in his public, as opposed to his private, capacity is a question to be decided by the trier of fact based on all the evidence, not merely on the evidence as to the specific duties as created by statute or ordinance.

Again, the Utah Supreme Court emphasizes its view of the purpose of impeachment: ”[T]o protect and preserve the office and to free the public of unfit officers.”

And the Court takes an expansive view of the definition “in office.” (And as a side note, I will note that, even before he was ELECTED Attorney General, John Swallow would have still be eligible for impeachment as a Deputy Attorney General under the statute referenced in the Jones and Madsen decisions for malfeasance in office. In other words, “in office” also means more than just “in elected office,” at least under the state statute relied on by Swallow’s attorneys.)

But perhaps most interesting to me is the following statement: “The question as to whether the alleged misconduct accurred while the accused was acting in his piblic, as opposed to his private capacity is a question to be decided by the trier of fact based on all the evidence, not merely on the evidence as to the specified duties as created by statute or ordinance.”

Hmm . . . “decided by the trier of fact” . . . and just who is the trier of fact when it comes to impeachments? The Utah legislature.

In short, the two cases provide very little — if any at all — support for Mr. Swallow’s position that the legislature can’t act to impeach unless he’s been charged with a crime. Indeed, it is the legislature’s constitutional obligation to act if they believe further investigation is needed. Any interpretation of legislative authority that requires a decision by someone else (whether a US Attorneys’ Office, a County Attorney, or anyone else) is an interpretation that denies the Utah legislature full authority over impeachments.

Really, John Swallow?

Does Mr. Swallow really expect the legislature to believe that nothing he has done — if it does not lead to the charging or conviction of crime — prior to the time he entered elective office as the Attorney General provides a basis for impeachment? And this coming from the the man who is the primary authority on which people in the state will be charged with crimes?

The arrogance of this position is remarkable.

There are lots of reasons an accused person may not be charged with committing a crime. One, the charging authority may believe that the accused person hasn’t done anything wrong. Or, they may believe he is guilty as sin but lack corroborating evidence. Or, they may have corroborating evidence that may not be admissible under applicable rules of evidence. Or, they may simply determine their limited resources are better used elsewhere. (And who knows this — or should know it — better than Mr. Swallow, our Attorney General?)

For heavens sake, Josh Powell was never charged with or convicted of a crime! Does Mr. Swallow believe that, were Josh Powell serving as our Attorney General he would not be subject to impeachment for murdering his wife? What if Josh Powell had previously been acquitted of murdering his wife, and then, in reliance on the double jeopardy provisions of the United States Constitution had written a book admitting it all? Still no impeachment because he was cleared by the courts? Come on.

There is a judicial doctrine that precludes interpretation of a statute (or a Constitution, for that matter) when it would lead to an absurd result. Here it is.

The evident purpose of our impeachment statutes is to provide for removal from office a person who has violated the public trust.

The United States Constitution.

I think everyone acknowledges that the “high crimes and misdemeanors” language in our Utah Constitution was modeled from the United States Constitution, which states as follows: “The President, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

Careful readers will note here that bribery is specifically included in the meaning of the broader term “high crimes and misdemeanors.”

The reference made to “conviction” in the Constitutional language refers to conviction by the Senate in a trial of impeachment. It can’t mean conviction in a judicial proceeding. If it did, that would take the sole authority to impeach out of the hands of Congress (and Hamilton, in the Federalist 65, wrote a lengthy defense of Congressional Authority to impeach).

The authority to impeach – both in the United States Constitution and the Utah Constitution – lies solely with the legislative branch. John Swallow’s self-interested reading of the Utah Constitution would require first either: (1) a decision to charge by the executive branch, or (2) a decision to convict in a proceeding under judicial authority. In other words, it would result in at least a partial delegation of that authority to the other two branches. That’s nowhere in the Constitution. And it turns the principle of separation of powers on its head.

Utah Legislature: Don’t be Intimidated!

What’s John Swallow going to do if the legislature institutes impeachment proceedings? Is he going to file an action seeking to enjoin the legislature from fulfilling its constitutional duty? I mean, not even Nixon did that, right?

Or is he just bluffing?

Well, I still think he’s bluffing. I still think he’s just trying to intimidate the legislature into not acting.

So my message to the Utah legislature is — don’t be intimidated.

John Swallow wants to scare you enough that you’ll decide to wait on the results of an investigation that may or may not result in a decision to charge. He knows that his best chance is for you to wait, for the Salt Lake Tribune and pesky bloggers to get tired of his situation, and cross his fingers that he won’t be charged. Then, if everything works out he’ll claim victory and dare you to try to impeach an “innocent” man.

Do you really want to put yourself in that situation? Because if you don’t commence impeachment proceedings now, there’s a good chance that’s where you’ll be.

Ask yourselves — how much more do you need to know before you start impeachment proceedings?

Hasn’t he already done enough damage to the Attorney General’s Office through his questionable conduct and poor judgment?

The most valuable quality a lawyer can possess is the quality of judgment. It’s ultimately what we like to see in our Attorney General. Yet — even if we assume the very best about John Swallow — he has time and time again, has exhibited extraordinarily poor judgment in acting in questionable ways and then refusing to take any responsibility for those actions.

And now he’s threatening you with a lawsuit if you tre to impeach him. How else do you read this letter? He’s threatening to drag all three branches of the government through messy and uncomfortable legal proceedings to prolong his political career.

The man’s in trouble. And despite the fact that he feels as though he’s been persecuted by people at the Salt Lake Tribune, it’s all trouble of his own making.

Don’t be intimidated.

I posted on Twitter the other day that John Swallow is fully engaged in a game of chicken with the legislature. This just ups the ante. You know everything you need to know about this man. You know that he has shown no respect for his office, for the other branches of government, or, most sadly, for the people who put him them. You know he has bad judgment. You know he places his personal political well-being above the well-being of the people of this state. You know that he has sabotaged the standing and effectiveness of the Attorney General’s office and the attorneys who work there — people for whom I personally have a great deal of respect — and that he will continue to do so to promote his own personal gain.

If you’re worried about setting precedent by acting to impeach, realize you’re going to be setting precedent no matter what you do. Think: What kind of a precedent would you be setting if you didn’t move to impeach? If you waited until Mr. Swallow was charged with a crime you’d be cementing his interpretation as the only available precedent — that the grounds for impeachment are equivalent with the conduct punishable as a criminal offense.

Take the necessary action. Call John Swallow’s bluff. And put this matter to rest once and for all.

Filed Under: Law, News, Opinion Tagged With: attorney general, high crimes and misdemeanors, impeachment, intimidation, john swallow, utah legislature

Some Random Political Quick Hits

April 1, 2013 by Curt Bentley 1 Comment

Too tired to offer up any real substantive content this morning. So, instead, you get something akin to my own cynical version of Political Cornflakes.

John Swallow’s getting away with it.

Wake up Utah GOP. This guy’s not leaving of his own accord. You wait for the official results of investigations at your peril. I hope you’re all still quietly working behind the scenes and haven’t just decided to let the guy finish out his term and lose at convention. Because that would just be sad.

Caucus system and Mike Lee.

Paul Rolly put out an article today on how Mike Lee is the compelling reason to change Utah’s candidate nominating system. I’m far from a raving fan of either one. As to my views on the caucus system, just ask Dan Burton at PubliusOnline — we’ve gone the rounds on this one more than once. Mike Lee? Well, he’s been in office almost 3 years now, and what’s he done? Come on, think of something . . . I dare you.

I’d like to replace Mike Lee. And I’d like to change the caucus system. But it’s never a good idea to change a system in response to an electoral result. In 2012, Tea Partiers learned, much to their distress, that they were not the only ones with power to game the caucus system. Whatever changes we make to the ways candidates are chosen in Utah should be about voter participation and engagement, not about results.

Tired of the crazy legislature meme.

Our legislature is conservative. Really conservative. But count me as one who’s getting tired of hearing that they’re all “bat-s***” crazy. In fact, if you put aside the constitutional carry bill (HB76, or whatever the number was), this year’s legislature was pretty darn moderate . . . especially by recent standards. Over and over I hear Utah’s liberals trotting out example after example of legislation that went nowhere as proof of how nutso our representatives are. Sorry, I just don’t see it right now. I’ve been as willing as anyone to call out what I see as silly in our elected representatives. And I haven’t seen much of it lately. While there’s more I’d like to see them do, of course, our current legislators are, on the whole, doing a fine job.

Obamacare.

Well, we’re coming down to it now. Or are we? Will it be fully implemented in 2014? And what will it do? Aside from turning the USA into Russia/fulfilling the promises of liberty and justice for all nobody really seems to know. Though we are all positive that Obamacare will “eliminate pre-existing conditions” . . . which is political-speak for “prevent insurance companies from denying coverage based on pre-existing conditions.”

I think there will be a lot of buyers remorse on Obamacare, which, from what we can tell, seems to be terribly designed and shabbily implemented. Unfortunately, the GOP has yet to articulate an alternative vision, so it appears we’ll twist in the wind for a time before beginning the debate over full national health. Ughh.

At least the Obamacare preparation consultants will have their moment in the sun prolonged . . . .

Supreme Court.

There’s lots of cool, important stuff going on up there right now. And very little intelligent commentary about it. More to come. Whether what comes is intelligent or not, well, that’s obviously up to you to decide.

Filed Under: News, Opinion Tagged With: john swallow, law, mike lee, obama care, political cornflakes, quick hits, random thoughts, supreme court, utah legislature

H.B. 351, Opt-Out of Order on White House Rural Council — Rep. Ivory

February 28, 2012 by Curt Bentley 2 Comments

After a long, work-induced hiatus from blogging, Utah Political Summary returns today with some brief commentary on H.B. 351, a bill sponsored by Representative Ken Ivory.

H.B. 351 is part of our legislature’s ongoing effort to step federal government meddling in local government by preemptive state meddling in local government. Specifically, it’s a response to Executive Order 13575 (“EO13575″), which was issued by President Obama last June and creates a White House Rural Council (“WHRC”) to “enhance Federal engagement with rural communities.”

EO13575

The WHRC would be chaired by a representative of the Department of Agriculture, comprised of a representative of every other federal department, and tasked with the mission of “coordinat[ing] development of policy recommendations to promote economic prosperity and quality of life in rural America,” and “coordinate[ing] [the Obama] Administration’s engagement with rural communities.”

Specifically, the WHRC will:

Make recommendations to President Obama on how to streamline and leverage the impact of federal investment dollars in rural communities;
Coordinate and increase the effectiveness of federal engagement with rural America’s stakeholders; and
Identify and facilitate rural energy development, outdoor recreation and conservation-related opportunities.

On its face, EO13575 appears to be nothing more than an attempt to coordinate efforts across departments, to make the administration’s “rural policy” more cohesive and effective.

But it’s got Representative Ivory up in arms. In fact, he refers to it on his Facebook page as an order creating “White House zoning and planning authority over all ‘rural America.’” So he’s crafted H.B. 351 — a legislative response consistent with his apparent alarm.

H.B. 351

Representative Ivory’s bill, which was passed out of committee on February 27, 2012, would require any “department or agency of the state” that wants to implement a “directive” of the White House Rural Council created by EO13575, to file a report to the legislature’s Natural Resources, Agriculture, and Environment Interim Committee containing the following information:

(3) (a) The report required under Subsection (1)(a) shall include:

(i) the directive from the White House Rural Council; and

(ii) a description of:

(A) the requirements imposed by the directive and how the agency would implement the directive;

(B) the effect of implementing or not implementing the directive;

(C) the cost to the state or its citizens of implementing the directive; and

(D) the consequences to the state if the state does not comply with the directive.

(b) The report required under Subsection (1) may include an analysis by the agency or department that addresses whether a directive from the White House Rural Council:

(i) affects the distribution of power and responsibility among the state and national government;

(ii) limits the policymaking discretion of the state;

(iii) impacts a power or a right reserved to the state or its citizens by the Ninth or Tenth Amendment to the United States Constitution; or

(iv) impacts the sovereignty rights and interest of the state or a political subdivision to provide for the health, safety, and welfare of, and to promote the prosperity of, the state’s or the political subdivision’s citizens.

The required report is designed to give the legislature an opportunity to legislate in opposition to the “directive,” if it so chooses. In fact, after receiving the report from the “department or agency of the state,” the Natural Resources, Agriculture, and Environment Interim Committee can recommend to the legislature that it enact legislation that either specifically authorizes or prohibits compliance with the “directive.”

The supreme irony in the whole situation? Representative Ivory’s bill would be codified at Utah Code Ann. 63M-1-1607 et seq., as part of Utah’s already existing Rural Development Program, which is operated out of the Governor’s Office of Economic Development through the Office of Rural Development, which in conjunction with the Rural Coordinating Committee, provides support to the Governor’s Rural Partnership Board.

And the mission of the state’s Rural Development Program? Here’s a bulleted list:

Facilitate within the Governor’s Office of Economic Development implementation of the strategic plan;
Work to enhance the capacity of the Governor’s Office of Economic Development to address rural economic development, planning, and leadership training challenges and opportunities by establishing partnerships and positive working relationships with appropriate public and private sector entities, individuals, and institutions;
Work with the Rural Coordinating Committee to coordinate and focus available resources in ways that address the economic development, planning, and leadership training challenges and priorities in rural Utah; and
Coordinate relations between the state, rural governments, public/private groups engaged in rural economic planning and development, and federal agencies.

Some Thoughts

I think it’s pretty clear that Representative Ivory sees the White House Rural Council as another front on the war over western state lands. Perhaps it is. I don’t know. But there’s nothing in EO13575 or the duties set out for the WHRC authorizing it to make “directives” to local governments, and certainly nothing in it that authorizes it to engage in nationwide zoning.

President Obama, like other Presidents before him, undoubtedly has a “plan” for rural America, and will go about implementing his “plan” in whatever way he can, including, presumably, by conditioning the receipt of federal funds on local governments implementing plan objectives. But it’s questionable whether such “incentives” can fairly be characterized as “directives.” Thus, to have any effect, it appears that Representative Ivory’s bill would require all “departments or agencies of the state,” any time they want to implement a suggestion or recommendation originating from the WHRC, to first create a burdensome report for the state legislature. This is turf-war level of micromanagement that would do the most overreaching federal agency proud.

Now, Representative Ivory may believe that the Constitution grants the state exclusive authority to make recommendations to local governments and rural America. After all, Article II of the Constitution is pretty sparse . . . . But at some point, he, and the other members of the Utah GOP’s club of constitutional crusaders need to contemplate the extent to which their near myopic obsession over their own version of constitutional federalism is turning them is seriously undermining their core conservative governing principles.

If President Obama issues an order emanating from the WHRC that unconstitutionally dictates to rural Utahns what they may or may not do, then legislate against it or fight it in court as appropriate. But why borrow trouble and micromanage just out of antipathy toward one particular administration? President Obama will eventually leave office, the WHRC he created will be dissolved, and a Republican will be elected President again . . . but legislation persists. H.B. 351 is unnecessary, misguided, and not worth our legislature’s time.

Filed Under: Bill Summaries, Law, News, Opinion, Slider Tagged With: 2012 legislative session, barack obama, constitution, federalism, ken ivory, law, utah, utah legislature, white house rural council

Open Political Caucuses – Comparing the Powell and Romero Bills

January 30, 2012 by Curt Bentley Leave a Comment

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.

Filed Under: Bill Summaries, Law, News, Slider Tagged With: 2012 legislative session, closed caucuses, first amendment, freedom of association, hb477, hb89, public meeting, rep. kraig powell, sb45, senator ross romero, utah legislature

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

January 26, 2012 by Curt Bentley Leave a Comment

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

@curtbentley 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 webReply RetweetFavorite

@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.

Filed Under: Bill Summaries, Law, News Tagged With: 2012 legislative session, administrative law, board, director, margaret dayton, sb11, sb21, utah department of environmental quality, utah legislature

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

January 24, 2012 by Curt Bentley Leave a Comment

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:

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;
A voter sends written confirmation to the county clerk that he or she no longer resides in the county;
The voter requests, in writing, that the county clerk remove his or her name from the county’s registration rolls;
The county clerk receives a notice that the voter has registered to vote in another state;
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
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.

Filed Under: Bill Summaries, Law, News, Opinion, Slider Tagged With: 2012 legislative session, aclu, fraud, hb477, law, national voter registration act, notice, rep. kraig powell, utah legislature, vote, voter registration, voting rights act

Quick Thoughts on the McAdams Statewide Anti-Discrimination Bill

January 20, 2012 by Curt Bentley Leave a Comment

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.

Filed Under: Bill Summaries, Law, News, Opinion Tagged With: 2012 legislative session, ben mcadams, civil rights, derek brown, employment discrimination, gay rights, gender identity, same sex marriage, sexual orientation, title vii, utah anti-discrimination act, utah legislature

What Should Be Done About Utah’s Unenforceable Campaign Session Contribution Law?

December 29, 2011 by Curt Bentley 1 Comment

By now it seems that everyone pretty much acknowledges that Utah’s law prohibiting candidates from soliciting campaign contributions during the legislative session is unenforceable as to candidates for federal office. In addition, as I pointed out this past November, it may also be unconstitutional with respect to other candidates.

But the law can be fixed, and the fixes are not that difficult.

For example, rewriting the law like this (just want to make sure you’re clear this is a proposed rewrite) would clearly make its prohibitions (at least the ones that remain) enforceable:

36-11-305. Campaign contribution during session prohibited.

1. It is unlawful for a ~~person,~~ lobbyist, principal, or political committee to make a campaign contribution or contract, promise, or agree to make a campaign contribution to a legislator or a legislator’s personal campaign committee, or a political action committee controlled by a legislator during the time the Legislature is convened in annual general session, veto override session, or special session.

2. It is unlawful for a ~~person,~~ lobbyist, principal, or political committee to make a campaign contribution, or contract, promise, or agree to make a campaign contribution, to the governor, the governor’s personal campaign committee, or a political action committee controlled by the governor during the time the Legislature is convened in annual general session, veto override session, special session, or during the time period established by the Utah Constitution, Article VII, Section 8, for the governor to approve or veto bills passed by the Legislature in the annual general session.

3. The prohibitions contained in this section shall not apply to a contribution, contract, promise, or agreement to make a campaign contribution to an announced candidate, or to such candidate’s person campaign committee or a political action committee controlled by such a candidate, for United States Congress.

4. The prohibitions contained in this section shall not be construed to prohibit an announced candidate from making a direct personal contribution to that candidate’s personal campaign committee.

3. 5. Any person who violates this section is guilty of a class A misdemeanor.

There it is representatives/senators, H.B./S.B. ____. The proposed revisions above are just a reflexive first crack at fixing the law, but they address the problems of federal preemption as well as potential constitutional concerns resulting from the extension of the prohibitions to all people, as opposed to only lobbyists.

It would leave the law enforceable as to legislators and the governor, if running for re-election or another municipal, county, and state offices, when it comes to contributions from lobbyists and political committees, but would allow citizens and candidates to make contributions to candidates during the legislative session. It’s primary effect would be to eliminate contributions from lobbyists made during the session, which was the primary focus of the law as originally enacted. Contributions to candidates for federal office would be regulated by federal law. If our legislators don’t like the fragmented nature of the law as it remains, they should repeal it.

Regardless of the final language that’s used, the fix is straightforward and should be made. But certainly no current candidate is going to bring a legal challenge to the law, thereby giving his opponent an issue to use against him in the upcoming campaign. And I worry that our state legislators (and perhaps the governor himself) likewise lack the political will to do anything about Utah’s session contribution law because they’re worried it might be bad for their political careers to become known as the person who loosened restrictions on politicians being able to solicit money during the legislative session.

Indeed, it appears that everyone may be content just to leave the law on the books as another unenforceable statement — a statement that is, though without the actual force of law, nonetheless potent because no one wants to risk their careers by being the one to cross it. Or, maybe because some wish the law were enforceable and are content to let it operate as though it were. Both sides rationalize their positions by saying, “Hey, enforceable or not, it’s a good practice. Why not just leave things as they are?”

But regardless of whether people shouldn’t be taking campaign contributions during the legislative session, this isn’t the way we should be legislating (or, not legislating, in this case).

Someone needs to step up and fix this law, or get rid of it altogether.

Filed Under: Bill Summaries, Law, News, Opinion, Slider Tagged With: 2012 legislative session, campaign contributions, campaign finance, federal preemption, governor, lobbyist, utah legislature

H.B. 49: Firearms Revisions, Rep. Paul Ray

December 26, 2011 by Curt Bentley 6 Comments

Well folks, it’s just about that time of year again — Utah’s legislative session kicks off in less than a month, and I want to get a head start on some commentary, as I have a couple of very big mediations scheduled for the week before the session begins that are going to take basically all of my time for those preceding two or three weeks.

There are a few 2012 general session bills are already posted on the Utah legislature’s website, and while browsing through them this morning, I found some that are bound to generate some interest. I’ve decided to kick of my coverage of the 2012 legislative session with H.B. 49, proposed by Representative Paul Ray of Roy, which is titled “Firearms Revisions” and is the latest chapter in the ongoing saga in the battle over guns at the University of Utah. Representative Ray’s legislation would prohibit state governmental entities from using other provisions of Utah’s criminal laws to prevent individuals authorized to carry a firearm from openly carrying on government property.

Some Background

At this point, the battle over concealed weapons at the University of Utah is into its eleventh year, and the resulting collateral damage is significant. Taxpayers and students are out hundreds of thousands, if not millions, of dollars in legal fees and costs at this point (paying for both sides of the fight), and Utah lost the services of perhaps its ablest trial (and aspiring appellate) judge, Robert K. Hilder, due to legislative vindictiveness toward the judiciary that would make Newt Gingrich proud. Furthermore, in yet another ironic twist for a body professing committment to local control, educational choice, and government close to the people, the Utah legislature, in its crusade to bring the University of Utah in line, has completely centralized gun policy at the state level. See Utah Code Ann. § 53-5a-102.

Representative Ray’s proposed legislation was almost certainly prompted by an article from the Salt Lake Tribune that appeared earlier this year revealing the University of Utah’s internal strategy to deal with individuals openly carrying firearms on campus. The online version of the Tribune’s article contained a link to an electronic copy of a leaked internal University memo outlining how police officers were to use various provisions of Utah’s criminal laws to cite individuals who were the subject of complaints from fellow students for “openly carrying or displaying a firearm on campus.” Here’s a screenshot from the leaked memo:

Internal U of U Memo

In a letter accompanying the memo, then-President Michael Young explained the rationale for the policy:

As you know, concealed weapons permit holders may carry a concealed weapon on this campus. However, Utah statutes do not permit anyone to open carry on campus, regardless of whether the person has a concealed carry permit.

The law permits me (and those I designate) to address conduct on campus that interferes with or obstructs the educational process and the peaceful conduct of activities on the campus. You should apply this law to any individual who is observed with a weapon on campus. Please instruct the individual that revealing his or her weapon creates an intimidating environment and interferes with the peaceful activities of the cainpu.s. In the first instance, you should seek voluntary compliance by asking the individual to conceal his or her weapon. However, if the individual will not voluntarily conceal his or her weapon, you should take whatever action is necessary and appropriate to remove the individual from the campus.

Analysis

There is no indication from the leaked memo that the University of Utah intends to go after a person not carrying openly who has a concealed carry permit. In fact, there is an express indication to the contrary. The policy is designed to minimize disruptions to the educational environment by those rare people who, for whatever reason, may decide to openly carry a firearm around a college campus in this post-Columbine and Virginia Tech world. And the University adopted what seems to be an extraordinarily common sense way of dealing with the problem, given the restrictions currently imposed.

But H.B. 49 would prevent the University of Utah, or any Utah governmental authority, from adopting these kind of common sense policies that balance the rights of gun owners with concerns for public order and perception of safety.

It would prohibit charging an individual with any of the following crimes for openly carrying a firearm or other dangerous weapon absent some undefined level of ”additional threatening behavior”:

Utah Code Ann. § 10-8-47 (powers of municipalities). Intoxication — Fights — Disorderly conduct — Assault and battery — Petit larceny — Riots and disorderly assemblies — Firearms and fireworks — False pretenses and embezzlement — Sale of liquor, narcotics or tobacco to minors — Possession of controlled substances — Treatment of alcoholics and narcotics or drug addicts.
Utah Code Ann. § 10-8-50 (powers of municipalities). Disturbing the peace — Public intoxication — Fighting — Obscene language — Disorderly conduct — Lewd behavior — Interference with officers — Trespass.
Utah Code Ann. § 76-6-206. Criminal trespass.
Utah Code Ann. § 76-8-703. Interfering or intending to interfere with activities — Failure to leave when ordered.
Utah Code Ann. § 76-8-704. Violation of rule or regulation of institution — Failure to leave when ordered.
Utah Code Ann. § 76-8-705. Willful interference with lawful activities of students or faculty.
Utah Code Ann. § 76-9-102. Disorderly conduct.
Utah Code Ann. § 76-9-103. Disrupting a meeting or procession.
Utah Code Ann. § 76-9-104. Failure to disperse.
Utah Code Ann. § 76-9-106. Disrupting the operation of a school.
Utah Code Ann. § 76-10-506. Threatening with or using dangerous weapon in fight or quarrel.
Utah Code Ann. § 76-10-507. Possession of deadly weapon with intent to assault.

H.B. 49 would also require prior legislative approval for any governmental authority’s regulation of firearms — including any attempt to prohibit or penalize open carrying of firearms — and would automatically void any “firearm or dangerous weapon law, ordinance, rule, regulation, code of conduct, or contractual obligation enacted, made, adopted, or entered into” without prior legislative permission and which does not specifically cite to the statutory section containing legislative authorization. In short, to the extent there was any doubt about whether open (as well as concealed) carrying prohibitions had been centralized under state authority, H.B. 49 would remove that doubt.

H.B. 49 amounts to a declaration that legally, openly carrying a firearm (or any other dangerous weapon) does not amount to “disrupting the operation of a school,” “disorderly conduct,” “interfering with activities,” or “willful interference with the lawful activities of students or faculty.” By logical implication, it declares that revealing your weapon on government property is not “additional threatening behavior” and therefore is not citable under Utah’s criminal laws (at least those catalogued above; if there are others, I’m not aware of them). Even if, in most instances, this law makes sense, H.B. 49 reduces the options a police officer has to deal with disorder that might result due to an open carry situation. Independent of whether one can imagine a case where revealing, or openly carrying your weapon, could be deemed threatening to others (and I can), you can certainly imagine cases where such an act would be extraordinarily disruptive to the educational goals of a premier research university. But H.B. 49 would remove that fact from consideration. Under this law, it wouldn’t matter if openly carrying were extraordinarily disruptive in specific context. H.B. 49 would place the focus exclusively on danger and threatening actions, not the public response.

This seems, to me, to be a misguided, and unnecessary, approach to the problem of openly carrying a deadly weapon on the campus of an educational institution. My recommendation: leave the laws as they are, and allow enforcers the flexibility to respond as situations dictate.

Filed Under: Bill Summaries, Law, News Tagged With: 2012 legislative session, concealed weapons, criminal law, firearms, guns, judge hilder, paul ray, second amendment, university of utah, utah legislature, utah supreme court

Dan Liljenquist and State Level Medicaid Reform

December 15, 2011 by Curt Bentley Leave a Comment

If you’ve ever attended one of his “fiscal reality” town hall meetings, you’ll notice the passion with which Senator Dan Liljenquist talk about entitlement reform. He’ll tell you it’s what pulled him out of the private sector and into politics. You can hear the excitement in his voice when he talks about how Rhode Island — the bluest of all blue states — enacted sweeping pension reform legislation this past year to forestall a fiscal collapse. And you feel his real frustration when he speaks about the fact that a “mid-level bureacrat” is holding up Utah’s Medicaid waiver request over small proposed co-pay increases.

Liljenquist has built quite a name for himself as the state level entitlement reform guy nationwide. It’s what he does, and, thus far, he appears to have done it in impressive fashion. So these days, he’s the guy that other people talk to when they want to do it, too.

But despite all the notoriety, I suspect there are quite a few people, especially here in Utah, that don’t understand what exactly it is that Liljenquist has done when it comes to entitlements. So I wanted to put up this post summarizing the nature of Liljenquist’s Medicaid reforms here in Utah, and then offer some brief thoughts on the future of state-level Medicaid reform (and how it may tie in with Liljenquist’s future political plans, which may be the worst kept secret in Utah).

What’s Been Done

Liljenquist’s reform efforts were prompted by some alarming numbers. In the case of his Medicaid reforms, it was the accelerating growth of Medicaid as a percentage of Utah’s budget.

Medicaid, though jointly implemented by the federal government and the states, is a federal program. And the federal government sets uniform eligibility requirements for state Medicaid programs, while each state (with significant federal funding assistance, of course) is left to meet those requirements with its state level programs. The continually soaring cost of health insurance — whether employer-funded and privately purchased — together with the difficult economy has led to a rapid rise in eligibility for benefits. As a result, states are being forced to budget ever larger shares of their shrinking (or stagnant) revenue streams to meet the increased demand. And Obamacare, when fully implemented in 2014, will expand eligibility even further. These days, Medicaid expenses are growing fast enough, and becoming large enough, that they legitimately threaten to crowd out other important state services, including public education.

So, what to do?

Well, the federal government could grant limited waivers to Medicaid eligibility requirements for states who need them. But it won’t.

Kathleen Sebelius (President Obama’s Secretary of Health and Human Services) has made clear that states cannot expect any flexibility with Medicaid when it comes to eligibility; the current federal administration is not about to let Utah, or any other state, reduce eligibility requirements, even (and maybe especially) in the middle of a recession. And the two most reviled statutes in recent memory (at least from the right side) — the stimulus and Obamacare — both contain provisions protecting Medicaid eligibility.

Although Utah cannot control the number of people who are eligible for Medicaid benefits from the state level, Sebelius has suggested that states — as they have been in the past — will be given some flexibility when it comes to the nature of benefits themselves, and that’s the starting point for Liljenquist’s proposals.

The essence of Liljenquist’s reforms involve limiting costs by (1) tying Medicaid expenses to budget growth and (2) changing treatment incentives. These two components are designed to reduce total cost as well as to make expenses predictable in relation to each year’s revenue (which obviously fluctuates due to a number of different factors).

According to Liljenquist, Utah’s current Medicaid model — a combination of managed care and fee for service — incentivizes overtreatment by hospitals and physicians, and, more importantly, irresponsible overuse by Medicaid recipients (e.g., unnecessary trips to the emergency room). Liljenquist proposes moving Utah’s Medicaid system to a managed care+ philosophy designed to encourage more cost effective treatment. Here are the highlights:

The state would allocate what amounts to block grants of its Medicaid funds to groups of healthcare providers known as Accountable Care Organizations (“ACOs”) on a statistically calculated (based on disease rates and risk profiles) per patient basis.
Each patient would be assigned what’s called a “medical home,” and a healthcare provider would be assigned to manage that patient’s care. Patients would have a limited ability to choose their initial ACO and would have an option to switch ACOs once per year during an open enrollment period.
The ACOs would profit from Medicaid to the extent they facilitate effective and responsible treatment for their patients; since Medicaid payments would no longer be tied to specific treatment services provided, Liljenquist’s reforms would reduce the incentive to over treat for profit.
The state would offer some incentives, such as reduced co-pays or even cash rewards, for ACOs and patients who take advantage of preventative treatment options.
The system seeks to avoid the potential incentive to under treat patients by requiring that ACOs maintain a quality of treatment equivalent with that provided under the current system.
Compensation for services provided would remain in line with compensation under the current system; any expected savings would be generated by a relative predominance of more preventative and cost-effective treatment options.
The state would infuse some predictability into Medicaid funding by tying it to budget growth going forward. In years where there is a surplus, the surplus would be put into a rainy day fund. In years where enrollment growth exceeds expectations, benefits would be reduced across the board according to a predetermined schedule.
The state would seek modest increases in co-pay requirements for certain health services for those on Medicaid.

The Utah legislature’s fiscal analysts office estimates that the proposed reforms would result in savings of $770 million over the first seven years they’re implemented.

Liljenquist’s reform effort is just beginning, and can’t be implemented without permission from the U.S. Department of Health (USDHHS) and Human Services. The specific reform bill, S.B. 180, passed unanimously by the Utah legislature during the 2011 session, required the Utah Department of Health to develop the specific details of a reform plan, and submit a request for waiver to USDHHS, which it did on July 1, 2011. The waiver request is available online, for those interested in getting down into the details. If the waiver request is granted in time, the initial reforms are set to be implemented in July 2012.

Where Do We Go From Here? And What’s the Future for State Level Medicaid Reform?

Liljenquist’s proposed reforms are an attempt to work within the present system, frustrating as that system may be for reformers. And Utah’s new approach does seem promising. Of course, only time will tell whether the projected cost savings are realized and whether the quality of treatment for patients on Medicaid remain high. But what Utah is proposing to do, while not wholly innovative, is a significant step forward in deal with the problems created by partially-funded federal mandates that result in unpredictable expenses.

But ultimately, thanks to that pesky Supremacy Clause, state level Medicaid reform can only get you so far. Furthermore, you can never be certain that the reforms will be enduring, as they are subject not only to Congressional changes in course (see, e.g., Obamacare), but also to a somewhat unpredictable bureaucracy, subject to changes in approach based on the four-year Presidential election cycle. Finally, there is the oft-cited concept as the states as laboratories of democracy for federal policy; the irony in this case is that if state reforms are successful in providing effective care at a reduced cost, they might serve as models for National Health 2.0 — “Hey, Utah’s got this great approach to effective cost, statewide government funded health care, let’s try it nationwide!” Indeed, when I started investigating Liljenquist’s proposal, I thought to myself, if this works are well as they say it’s going to, it sounds like something that could go national and be, relatively speaking, cost effective.

All this reminds us, simply, is that Medicaid, despite the promise of state reforms, is a federal program, and real, fundamental change must happen at the federal level. The drivers of the Medicaid problem are eligibility and benefit standards, and, as a result, the basic components of real, substantive reform involves dealing with questions of eligibility and tiered-benefits, not just increased effectiveness in treatment and care delivery (which treat the symptoms).

The premise of Medicaid is about setting creating a safety net and setting a basic floor for those who can’t afford health care coverage. I think that’s a good thing, and I think that it’s probably something that should be done on a national level. This is, after all, all about people and not about states — and a person is a person, no matter what state they live in. But if Medicaid is going to continue to be implemented and significantly funded by the states, the overall national structure needs to provide, at minimum, necessary flexibility for states with vastly different budgetary needs and obligations and populations with different health profiles.

That can’t be done from a state legislature, no matter how many great ideas you’ve got. The future of Medicaid reform is not at the state level. Liljenquist knows that, and I suspect it’s a big part of what’s informing his future career plans.

Filed Under: Bill Summaries, Law, News, Opinion, Slider Tagged With: constitution, dan liljenquist, entitlement reform, federalism, medicaid, obamacare, reform, supremacy clause, utah legislature, waiver

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

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Dan Liljenquist and State Level Medicaid Reform

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