McCay pushing to eliminate constitutional warnings on proposed legislation

Legal review “notes” that opinion a proposed bill is unconstitutional are, once again, being attacked from within the Legislature.

Rep. Dan McCay, R-Riverton, has introduced HJR14, which would do away with what are called “constitutional notes.”

Now seen infrequently, maybe one or two every general session on hundreds of bills, the “notes” are in-depth opinions written by the Legislature’s own legal staff, which warn the proposed bill has a high probability of being declared unconstitutional by a court.

McCay, an attorney, said such notes put lawmakers in an awkward position: “They are an adversary of our own counsel (legislative staff attorneys).”

Instead of a lawmaker and his staff attorney working together, they are on opposite sides on such notes. And that is not a healthy relationship.

Besides, says McCay, Utah is the only state in the Union who have their own attorneys write such constitutional opinions on bills.

“All the other 49 seem to get along OK without” such notes, he said.

The standard for such a note is already pretty high – over a decade ago lawmakers themselves significantly tightened up the rules under which such a note can be put on a bill.

The standard is now that a bill, if passed, would create a law that, based on judicial opinions, had a high probability of being struck down in the courts.

But for decades, at various times, lawmakers have tried to do away with the notes – in one debate a non-lawyer lawmaker even saying he knew as well as anyone what is constitutional and what is not – so he doesn’t need someone else’s opinion.

The current debate over constitutional notes comes as Rep. Karianne Lisonbee, R-Clearfield, is pushing her HB205, a bill that would outlaw abortion if the woman’s only reason for getting one is that the fetus has Down syndrome.

That bill carries a long constitutional note, which says: “there is a high probability that the court would find the proposed legislation unconstitutional because the legislation violates current case law establishing a woman’s constitutional right to a nontherapeutic pre-viability abortion.”

House Minority Leader Brian King, D-Salt Lake, an attorney himself, told UtahPolicy: “I really, really, really hate the idea” of doing away with the notes.

The “notes” often make it easier for opponents of a bill that carries one to argue it should not pass, since it would only result in a lost court challenge, costing taxpayers money.

Most often, it is GOP lawmakers whose bills carry such a note because they are pushing political/moral agendas where court decisions are reasonably clear.

And so legislative Democrats pound and pound on the note angle when opposing such bills – which angers the majority Republicans, since it’s pretty difficult politically to argue against your own staff attorneys.

But the political argument doesn’t get far with McCay. He observed the note on Lisonbee’s abortion bill didn’t harm its passage this session – so it didn’t matter there.