With seven days left in the 2012 Legislature, there are seven bills out of more than 880 introduced that carry a constitutional note.
While a small number, at seven these are the most constitutionally-questionable proposals in recent Legislatures, a tally provided to UtahPolicy by legislative attorneys shows.
Those staff lawyers tell UtahPolicy that that seven number could grow, as amendments made in either the House or Senate could take a bill that is now not considered constitutionally challenged, to one that becomes so.
The seven bills are:
-- HB148, Rep. Ken Ivory, R-West Jordan, among other things, would require the federal government to give up control of all federal lands in Utah by Jan. 1, 2015.
-- HB198, Rep. Chris Herrod, R-Provo, says the federal government has no control over food grown and consumed by and individual in Utah.
-- HB384, Rep. Wayne Harper, R-West Jordan, would require out of state sellers to collect and impose Utah sales tax if the seller has some connection with a Utah business, like a part ownership in a Utah business.
-- HB385, Harper, a companion bill to HB364 with the same federal constitutional problems.
-- HB439, Rep. Paul Ray, R-Clearfield, would require that U.S. House members from Utah live in their districts.
-- HB511, Rep. Ken Sumsion, R-American Fork, would allow cities and counties to condemn and take federal land under certain circumstances.
-- SB34, Sen. Casey Anderson, R-Cedar City, would stop the federal government from having any control over food raised or produced in Utah and consumed by Utahns.
You can read each constitutional note by clicking on the bills and scrolling down to the bottom of the legislation.
Some of the notes are similar, like the violation of the Commerce Clause in the U.S. Constitution by trying to collect Utah sales tax on outside sales (mostly Internet purchases) from firms that don’t have a brick-and-mortar operation in the state.
Others are unique.
This year two bills, Ivory’s HB148 and Sumsion’s HB511, carry long constitutional notes because they would either force Congress to give back to the state all federal lands in Utah, or allow local cities and counties to condemn adjoining federal lands.
Both bills are aimed, their sponsors say, to get back into state or local control lands – mostly BLM lands – that were promised to Utah at the time of statehood in 1896, but have never been so delivered.
Constitutional notes, by legislative rule, are placed on bills by the Legislature’s own attorneys.
In theory, the idea is that lay lawmakers need some professional legal advice before they vote on bills that could land the state in federal court and/or run afoul of federal court or U.S. Supreme Court rulings or state court or Utah Supreme Court rulings.
As you can see by reading several of this session’s notes, a few bills have serious constitutional problems, as lawmakers’ own attorneys point out.
So far, however, the notes don’t seem to be a death knell to the questionable legislation.
In fact, on the federal land bills, the notes are almost seen as a plus, since backers say it will take a U.S. Supreme Court ruling to get federal lands back into local control, and the new laws will be the vehicles to carry the court cases forward.
HB148 and HB511 could end up either a great boon financially for Utah’s school children, or big legal messes that could cost the state millions of dollars in court costs to no avail.
Both are receiving strong support from conservative, Republican legislators.
Democrats, like Rep. Brian King, D-Salt Lake, say HB148 and HB511 are screens or shell games, leading Utahns to believe that they will result in billions of new dollars for Utah students, when in fact the courts will never order federal lands returned to the state.
In the meantime, public schools will continue to suffer financially, and a generation of children be denied an adequate education, King and opponents say.
Indeed, the history of constitutional notes is, and remains, an interesting example of power politics in the Utah Legislature.
About a decade ago, GOP legislators changed the note system, making the issuance of such notes much more restrictive.
Back in the 1980s and 1990s, any number of bills – often pushed by legislative conservatives, especially dealing with abortion – were getting constitutional notes.
There were numerous complaints about the notes, with some leading conservatives saying their own attorneys’ opinions on whether a bill was constitutional or not was just one lawyer’s opinion, and no better than another attorney’s, or any better than self-proclaimed constitutional scholars sitting in the House or Senate.
Specifically, anti-abortion conservatives were sick of their abortion bills, at least according to legislative attorneys, running afoul of the U.S. Supreme Court’s rulings, especially Roe vs. Wade.
The constitutional notes gave political opponents, most often legislative Democrats or moderate Republicans, powerful ammunition in debate, swinging votes to kill the measures.
The notes were also used by the media and editorial boards in publicly slamming right-wing legislation and their sponsors.
At times, GOP governors cited the notes as reasons to veto conservative bills.
So, Republican legislative leaders at the time decided to tighten up the use of constitutional notes.
After the rule change, the number of bills carrying such notes dropped dramatically.
John Fellows, the Legislature’s top attorney, tells UtahPolicy that under current rules a constitutional note is attached to a bill only if there is “a high probability that the legislation is unconstitutional.”
In short, the bill is only tagged with a note if specific language in the bill runs against a court ruling, so there is little doubt about its constitutional problems and the likelihood that if challenged it would be found unconstitutional in court.
In the case of HB148, legislative attorneys write: “(Congress’s property right) power is subject to no limitations. Congress has the absolute right to prescribe the times, the conditions, and the mode of transferring this (federal) property, or any part of it, and to designate the persons to whom the transfer shall be made. No State legislation can interfere with this right or embarrass its exercise. . .”
Ivory admits that there are legal challenges to his bill. But he argues Utah must at least start the process of getting these lands back, and risking some relatively small costs in a court case could well yield billions of dollars the state can make by selling, developing and/or mining current federal lands.
Ivory says recent U.S. Supreme Court decisions, especially in a case where the high court ordered some land returned to Hawaii, give great hope that Utah’s new federal land reclaiming laws could lead to a ground-breaking Supreme Court ruling.
HB148 sits on the House’s calendar and may well be voted on by the time this story runs.
HB511 passed out of the House, and to the Senate, Monday with a 57-14 vote. Only Democrats voted against it.
But another constitutional-note bill this session isn’t faring as well. Harper’s HB385 was voted down in a House committee.
The other note bills are still alive, some on the voting boards, others sitting in the House or Senate Rules Committees.
Their fate must be decided before adjournment at midnight March 8.
Recent legislative history of bills getting constitutional notes:
-- 2007, five bills with notes.
-- 2008, two bills with notes.
-- 2009, no bills with notes.
-- 2010, four bills with notes.
-- 2011, two bills with notes.
-- 2012, seven bills with notes (so far).