Lawmakers Mull Ditching Constitutional Notes

For years any number of Utah legislators have disliked the idea of getting what’s called a “constitutional note” on any of their bills.


Such notes are really mini-legal briefs by legislative staff attorneys detailing how the proposed bill or state constitutional amendment may run afoul of U.S. Supreme Court, federal court or state court rulings.

And especially for archconservative lawmakers – who want to challenge the U.S. Congress on any number of so-called states’ rights, abortion or other federal issues – the constitutional notes can be a royal pain in the political butt.

Often opponents of such note bills – be they newspaper editorial writers, citizen rights groups or liberals – use the note as a battering ram to bang the heads of conservative legislators.

Kind of like: “Hey, are you seriously going to vote for a bill that our own attorneys say is unconstitutional?!”

Fifteen years ago, legislative GOP leadership decided to reign in some of the constitutional notes, so they pushed through an internal rule that curtailed the scope of such notes – notes would only be placed on a piece of legislation that clearly had federal and/or state court rulings opposed to the bill’s objective.

But even that hasn’t proved restrictive enough for Rep. Ken Ivory, R-South Jordan, and many House Republicans.

They passed Ivory’s re-written HJR7 last week in a 55-19 vote.

The joint rule resolution would outright ban any constitutional notes on all bills in the future.

The measure now goes to the Senate, where even it’s upper-body sponsor, Sen. John Valentine, R-Orem, says constitutional notes have some value and Ivory’s dumping of the notes goes too far.

Originally, Ivory – an attorney who prides himself on constitutional knowledge and is a leader in the states’ rights movement in the House – wanted a new kind of note to be placed on bills, if need be.

His idea was that bills that applied to Utah regaining some of its sovereignty against the federal government would outline, or highlight, those states’ rights.

In theory, citizens and lawmakers would then see how the federal government was so often extending itself into areas constitutionally reserved for the states.

But that would have greatly increased the workload of staff attorneys – maybe even requiring one or two special hires in constitutional law just to handle the extra workload.

Compromises were sought.

But then Ivory surprised some observers by amending his resolution to do away with constitutional notes all together.

A few states don’t have constitutional notes on their proposed legislation, allowing supporters and opponents to argue constitutionality themselves without any kind of official legal review.

At least the new HJR7 would remove the negative connotations when a bill was given a constitutional note – even if there wouldn’t be a special note on states’ rights issues.

But Valentine told UtahPolicy on Monday: “I’ve told Ivory I was interested in finding a compromise. Constitutional notes do a good service for us – (giving us) a legal opinion. It’s a high-bar note, which means there is a significant likelihood the bill would be unconstitutional.”

Said Senate President Wayne Niederhauser, R-Sandy: “There’s a misconception that if it has a note we shouldn’t pass it.

“If we have a note, it’s a good thing that makes us aware, We challenge the (state or U.S.) constitution all the time. We have the right to challenge the constitution. Sometimes it needs to be tested.”

Added Valentine, a lawyer himself: “Should we be aware (there could be constitutional problems with a bill)?

“We should know about it. Saying it’s not important to hear is like putting our head in sand.”