Legislative Updates - 2 March 2015

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Dear Friends:

Defense of self and others is an unalienable right, recognized by our state and national constitutions:

“The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the Legislature from defining the lawful use of arms“ (Utah State Constitution, Article I, Section 6).

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed“ (United States Constitution, Second Amendment).

Keeping our code consistent with these constitutional provisions is part of each legislator’s duty under his or her oath to uphold our state and national constitutions. And, as implied in the Second Amendment, non-infringement of rights of self-defense is necessary to the maintenance of a free society.

Two bills (HB350 and SB256) would reduce the infringement on rights of self-defense in Utah Code. GrassRoots favors passage of both of these bills:

HB350, “Weapons on Public Transportation“, sponsored by Representative Thurston and Senator Bramble, would eliminate the prohibition of carrying a firearm on a bus, by deleting current language in Utah Code that “A person who boards a bus with a concealed dangerous weapon or firearm upon his person or effects is guilty of a third degree felony.“

HB350 passed the House Law Enforcement and Criminal Justice Committee 8-2 on February 25th, and awaits consideration by the full House.

GrassRoots favors a “yes“ vote on HB350.

SB256, “Concealed Firearm Amendments“, sponsored by Senator Hinkins, would provide an exemption for a person, who is 21 years of age or older and who may lawfully possess a firearm, from certain criminal provisions (Class B Misdemeanor) related to the carrying of an unencased, unloaded concealed firearm in places other than one’s own property. Essentially, SB256 appears to legalize concealed carry of unloaded firearms for those 21 and older, without the need for a permit.

SB256 awaits consideration by the Senate Government Operations and Political Subdivisions Committee.

GrassRoots favors a “yes“ vote on SB256.

Here are two more bills catching our attention:

SB157, “Government Records Access and Management Act Amendments“, sponsored by Senator Bramble and Representative Daw, would eliminate the right of direct appeal to district court of a chief administrative officer decision affirming a denial of a record request.

SB157 passed the Senate 2nd reading 22-0 on February 27th, and awaits consideration for final Senate passage on the Senate’s 3rd reading calendar.

By eliminating the right of direct appeal to district court when a government record request is denied, SB157 seems likely (a) to make various governmental proceedings less transparent than they should be; and (b) to place additional judicial powers in the hands of executive department officers. This seems contrary to the principle of Separation of Powers generally, and also as expressed in the Utah State Constitution: “The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers properly belonging to one of these departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted“ (Article V, Section 1).

Separation of legislative, executive, and judicial powers is an essential practice for avoiding tyranny. James Madison wrote: "The accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. . . . [And, quoting Montesquieu, Madison continues:] Were [the power of judging] joined to the executive power, the judge might behave with all the violence of an oppressor" (Federalist No. 47, 3rd and 8th paragraphs).

Eliminating the ability of Utah citizens to appeal records request denials to the judiciary seems to be a dangerous violation of the principle of Separation of Powers, a violation that will reduce transparency in our government. GrassRoots favors a “no“ vote on SB157.

SB214, “Veterans Court“, sponsored by Senator Knudson and Representative Ray, would:

• authorize the Judicial Council to create veterans courts in each judicial district or a regional veterans court based on (a) veteran geographic populations; and (b) “the existence of a collaborative strategy between the court, prosecutors, defense counsel, corrections, substance abuse treatment services, and the United States Department of Veterans Affairs Veterans Justice Outreach Program to divert veteran offenders“;
• specify which veterans may be eligible for the court's consideration for participation in a veterans court and affiliated intervention programs;
• specify that “A veterans court program shall include continuous judicial supervision using a cooperative approach with prosecutors, defense counsel, corrections, substance abuse treatment services, and the United States Department of Veterans Affairs Veterans Justice Outreach Program as appropriate to promote public safety, protect participants' due process rights, and integrate veteran diversion treatment programs with the justice system case processing“;
• authorize the court to seek federal funding to assist with the veterans courts; and provide for participation by the United States Department of Veterans Affairs Veterans Justice Outreach Program.

SB214 passed the Senate Judiciary, Law Enforcement and Criminal Justice Committee 6-0 on February 24th, and awaits consideration by the full Senate.

We have several concerns with SB214.

We question the propriety of “authorizing“ the Judicial Council to create courts (including “veterans courts“) given the constitutional requirement that “The judicial power of the state shall be vested in a Supreme Court, in a trial court of general jurisdiction known as the district court, and in such other courts as the Legislature by statute may establish“ (Utah State Constitution, Article VIII, Section 1). It seems inappropriate for the Legislature to delegate to the Judicial Council the power to set up any courts. This should only be done by the Legislature.

We think that “continuous judicial supervision using a cooperative approach with prosecutors, defense counsel, corrections, substance abuse treatment services, and the United States Department of Veterans Affairs Veterans Justice Outreach Program“ seems likely to:

• blur the separation of executive and judicial powers that should exist between a court and executive entities such as prosecutors (please see again the quotation from James Madison on the importance of separation of powers in our analysis of SB157);
• interfere with the relationship between defense counsel and client, and even compromise the integrity of that relationship; and
• through a court’s “cooperative approach with . . . the United States Department of Veterans Affairs Veterans Justice Outreach Program“, increase federal control of our state in matters where state and local sovereignty should reign supreme.

Also, by “authorizing“ a court to seek federal funding to assist with the veterans courts, that court is more likely to sacrifice our sovereignty. Former US Secretary of Agriculture Ezra Taft Benson expressed the opinion that “[N]o State or local government can accept funds from the Federal and remain independent in performing its functions, nor can the citizens exercise their rights of self-government under such conditions“ (speech entitled “The Proper Role of Government“). Was Mr. Benson correct? Abundant evidence seems to indicate that he was.

We believe that SB214 creates unequal treatment under the law as veterans are treated differently from other citizens. Indeed, this looks like state-sponsored discrimination.

SB214 is wrong on principle, and seems likely to bring serious corruption into our court system. GrassRoots favors a “no“ vote on SB214.

And here are updates on some bills mentioned in earlier GrassRoots updates:

HB79Substitute, “Safety Belt Law Amendments“, sponsored by Representative Perry and Senator Bramble, would, as amended by the House of Representatives:

• amend the provision that provides that a state or local law enforcement officer may only enforce the safety belt restraint requirement as a secondary action in certain circumstances to only apply beginning on July 1st, 2018—this means that, until July 1st, 2018, enforcement of the safety belt restraint requirement would become sufficient reason for a police officer to pull anyone over;
• provide that until July 1st, 2018, a peace officer may not issue a citation to an individual for a violation if the person has not previously been warned for a violation but shall issue the individual a warning; and
• amend the requirements for the court to waive the fine for a safety belt violation, so that an “offender“ may escape the prescribed fine by completing a 30-minute course on the benefits of safety belt and child-restraint use (the current requirement in code is to attend a 2-hour course).

HB79Substitute passed the House of Representatives 41-32 on February 17th, and the Senate Business and Labor Committee 3-1 on February 24th, and awaits consideration by the full Senate.

The current amended version of HB79Substitute would appear to make the penalties for violation of seat belt code a bit less burdensome, which looks good (though maybe only temporarily). Still, seat belt enforcement is not a good reason for a police officer to pull a driver over. GrassRoots still favors a “no“ vote on HB79Substitute.

SB43Substitute, “Changes to Election Law“, sponsored by Senator Jenkins and Representative Anderegg, would have delayed implementation of parts of SB54 of the 2014 General Legislative Session (hereafter “2014-SB54“), so that, for the 2016 primary elections, political party membership could have continued to select their party’s nominees through the caucus/convention system that has existed for years.

SB43Substitute failed the Senate 9-19 on February 24th, and appears to be dead for this session.

We still feel that government interference in the workings of a political party, to prescribe who will be that party’s candidate(s), is unwarranted. 2014-SB54 was unwarranted interference that should be repealed or delayed. GrassRoots still favors a “yes“ vote on SB43Substitute.

There is also updated status on SB153 and SB164, both of which are Medicaid Expansion bills discussed last week. (For our analysis and discussion of these and other Medicaid Expansion proposals, please see our legislative update of February 23rd on our website at www.utahgrassroots.org .)

SB153, “Access to Health Care“, sponsored by Senator Allen Christensen, failed the Senate 2nd reading 9-19 on February 26th, and is probably dead for this session.

GrassRoots still favors a “no“ vote on SB153.

SB164, “Access to Health Care Amendments“, was replaced by SB164Substitute, same short title, sponsored by Senator Shiozawa and Represenative Dunnigan. Like the original SB164, SB164Substitute would still be a large Medicaid Expansion, similar in magnitude to the original SB164, for the first couple years. However, SB164Substitute would provide a sunset date of July 1st, 2017 for the proposed Medicaid waiver. (Of course most sunset dates are later extended or repealed altogether, and besides, if the principle is wrong, this is no reason to “let the camel’s nose into the tent“.)

SB164Substitute passed the Senate 17-11 on February 25th, and has been sent to the House, where it appears no action has been taken yet.

GrassRoots still favors a “no“ vote on SB164Substitute.

If you have any questions about these bills, GrassRoots’ position on these bills, or related matters, please contact either of us or any other member of the Board of Utah GrassRoots.

Sincerely,

Steve Stromness
Board Member, Bill Review Coordinator, Utah GrassRoots
steven.stromness@gmail.com
435-637-5248

Don Guymon
Chairman, Utah GrassRoots
donguymon@gmail.com
801-574-9461

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