Legislative Notes Warn a Number of Proposed Bills Could Run Afoul of Federal Law

Welcome to the Legislature, freshman Rep. Norman Thurston. Two of your bills are likely illegal.

And Sen. Mark Madsen’s medical marijuana bill has legal problems as well, could run afoul of federal law.

So too, Sen. Aaron Osmond and his 1stSubSB84.

Even though Osmond has not moved to substitute his original SB84 formally, the Legislature’s attorneys say the substitute is likely illegal because it would give the State Board of Education the authority to define school lunches, and the federally-funded school lunch program is set by federal agencies, and the state can’t take control of them.

The four above bills – HB247HB297SB259, and 1stSubSB84 – all have attached what is known as “legislative notes.”

These are legal opinions of the Legislature’s staff attorneys, warning what federal laws, state and federal court rulings, could be violated if the bills as written become state statute.

You can read the notes at the end of each bill’s text.

These used to be called “constitutional notes” – because the staff attorneys were warning that the bills could be found unconstitutional, as the bills sail close to previous court rulings.

But a decade ago legislative leaders changed the way their attorneys could review proposed legislation for illegality issues, changed the name of the notes, and greatly restricted their use and scope.

Reason: Too many legislators – some of whom believe they are constitutional scholars, as well – were getting angry about the “constitutional notes” given their bills.

These legislators wanted to pursue their legislation without being second-guessed by their staff attorneys.

And it was more difficult to get such “constitutional note” bills passed – as opponents inside and outside of the Legislature used the notes to attack the proposed legislation.

Of course, the pesky media kept saying the note bills were unconstitutional, making their sponsors look bad in the public.

But even the trimmed back notes are sometimes unwelcomed.

Rep. Ken Ivory, R-West Jordan, this year introduced HJR15, which would have done away with the “legislative notes.” But it failed in the House last month by a 32-37 vote.

Ivory has run a number of anti-federal government measures over the last few years, and he and others didn’t like legislative notes that pointed out where the state’s fight against the federal overloads could be running into legal trouble.

Madsen’s SB259 medical marijuana bill’s legislative note runs 57 lines and points out a number of court decisions and concludes “this legislation has a high probability of being declared unconstitutional by a court.”

However, a number of other states do have medical marijuana, and even a few have legalized recreational use of the plant, as well.

And so far attempts to stop such uses have failed.

Still, under legislative rules staff attorneys must research all bills for unconstitutional problems, and if found, list them at the bottom of the bills’ text – even if some legislators re-sent the notes.