Some conservative Utah legislators are tired of their “constitutionally-based” bills getting the crap kicked out of them by their own legislative lawyers.
So, Rep. Ken Ivory, R-West Jordan, will introduce a new legislative rule that says the Office of Legislative Research and General Counsel must “show the other side of the story” in what is called legislative review notes.
Such notes have been controversial off and on for a number of years.
More than a decade ago, legislative leaders decided to tighten up the constitutional review notes placed on bills that may have, in the legislative attorneys’ legal opinion, problems being upheld in court.
Before that change, each session brought more than a dozen bills with critical constitutional notes.
The current rule says there has to be a specific high court decision (either by the Utah Supreme Court or a state appeals court or the U.S. Supreme Court or appeals courts) that applies to what the bill was trying to do, and throwing into question where if passed the new Utah law would be legal.
Ivory cites this example.
In the 2013 Legislature Rep. Brian Greene, R-Pleasant Grove, introduced a bill on 2ndAmendment Rights. While a short measure, the bill had a two-and-a-half page constitutional note, which raised several possible issues that would lead the bill to be struck down in court.
But, said Ivory, who is an attorney who specializes in constitutional questions, there could also have been at least three citations on the state level that would have argued in favor of Greene’s bill.
“But those three citations weren’t made,” said Ivory.
The media, including UtahPolicy, wrote a number of stories on the long and detailed “unconstitutional” note.
The bill was amended, and the “unconstitutional note” removed by legislative attorneys; but ultimately failed.
“There are all kinds of citations – basically on state’s rights issues – that could be made” on many of the legislative notes, said Ivory.
“But the state’s rights issues are not considered” – only court cases that have some relevancy to the bill’s contents.
“We want the other side told” in the legislative notes, specifically that Utah’s enabling act and other court-recognized rights that belong to the state, not the federal government, should be listed.
Last year long-time Rep. Mel Brown, R-Coalville, took a similar Ivory rule and just substituted the language doing away with legislative attorney constitutional notes, said Ivory.
The bill passed the House but died in the Senate – senators refusing to disregard their own attorneys’ legal opinions on constitutionality.
Ivory hopes for a better outcome this year, and believes under his change both sides of a bill’s constitutionality can be researched and seen.