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Protecting the Bill of Rights in Utah since 1958

1999 Utah Legislative Report

31 December 2008 Published in Legislative Reports

Teachers 

HB 109 Substitute Educator Licensing and Professional Practices Act (passed) 

HB 109 amends the current law for teacher licensing requirements, and the purpose of several of its provisions seems to be to counter our arguments in Citizens of Nebo School District v. Weaver. For example, the statute changes the procedure under which complaints against teachers relating to their professional competence or ethics can be brought in court, and it specifically grants standing to sue to any parent who has a child in the school. 

The statute authorizes the Utah Professional Practices Advisory Commission to establish standards for professional performance, competence, and ethical conduct for educators. It also requires that the commission, "establish procedures for receiving and acting upon reports or allegations regarding immoral, unprofessional, or incompetent conduct, unfitness for duty, or other violations of standards of ethical conduct, performance, or professional conduct." Under the new law, the commission is granted the startling ability to, "investigate any allegation of sexual abuse of a student or a minor by an educator … independent of and separate from any criminal investigation." 

HB 109 seems to be an effort to codify the doctrine that teachers are full-time role models who cannot even be alleged to be involved in any "immoral" conduct without risk of losing their licenses (the same is true of HB 364, outlined below). Unfortunately, as a general matter, states are free to adopt quite stringent licensing and certification standards for teachers, so long as due process is available. However, as applied, the vagueness of this legislation could pose some due process concerns for teachers. 

HB 364 Safety in Public Schools (passed) 

HB 364 requires that the Criminal Investigations and Technical Services Division of the Department of Public Safety maintain a database of teachers accused, but not necessarily convicted, of a sexual offense, a drug offense, an offense against a person, or an instance of child abuse and neglect. The bill is clearly contrary to fundamental due process protections, and it reflects many of the problems with the Child Abuse Database maintained by the Utah Department of Human Services (see our 1998 annual report for more information on the Child Abuse Database)

The broad nature of the bill is illustrated by the fact that a mere allegation that one is living in a same-sex relationship, or had engaged in adultery or fornication, or had participated in some other consensual but illegal conduct with another adult, could arguably lead to the denial of his or her license and the end of his or her teaching career, regardless of its bearing on his or her qualifications and fitness to teach. Even Wendy Weaver, who was the subject of an allegation of criminal conduct in our case Citizens of Nebo School District v. Weaver, could be affected by this bill. As with HB 109, the ACLU of Utah will vigilantly monitor HB 364’s application. 

Search and Seizure 

HB 127 Substitute Asset Forfeiture Amendments 

(sent to be reviewed during the 1999 interim session) 

Asset forfeiture laws have always conflicted with the Fourth Amendment’s guarantees against unreasonable search and seizure. Developed largely in response to the so-called war against drugs, asset forfeiture laws allow law enforcement agents to seize the property of drug dealers and other criminals. At times, these laws can be taken to extreme levels. 

HB 127 came out of the Republican Party’s Central Committee, and it attempted to institute much-needed reforms to Utah’s current controlled substance asset forfeiture provisions. Among other amendments, the legislation added an innocent property owner exception, so that law enforcement agents would be prohibited from seizing property that was used for illegal purposes without the property owner’s knowledge or consent. It also required that seized assets go directly to the General Fund of the state, rather than remain with the law enforcement agency involved. 

HB 267 Forfeiture Regarding Sexual Offenses Against Children (failed) 

HB 267 exemplified many of the problems with asset forfeiture laws. If passed, it would have allowed the government to confiscate computers, peripherals, and personal property when these items were "used or intended for use" in violation of specified criminal statutes protecting children from sexual abuse. While pursuing the laudable and necessary objective of protecting children from abuse, the legislation made no distinction between owners who deliberately used their computers for illegal activity and those who were completely innocent of wrongdoing. Once the computer, equipment, software, and personal property had been seized, an innocent owner would face virtually insurmountable odds to recover his or her property. 

The sponsor maintained that HB 267 would not impact a person who received unsolicited e-mail containing illegal graphic images. However, Utah code states that, "a person is guilty of sexual exploitation of a minor ... when he knowingly possesses ... material ... depicting a nude or partially nude minor for the purpose of sexual arousal of any person." Per HB 267, computers and equipment would have been subject to forfeiture if they contained the material just described. If a computer owner were to receive unsolicited e-mail containing such material, he or she would "knowingly posses" it. Even if the e-mail were immediately deleted, often such information remains on the computer’s hard drive, rendering dispossession uncertain unless the hard drive is reformatted. 

Child Abuse Database 

SB 98 Second Substitute Amendments Child Abuse Database (passed) 

SB 98 attempted to further reform the Department of Human Services’ Child Abuse Database. The legislation outlines several good modifications to the database statute, including: 1) restrictions on access to the licensing database; 2) improved notice and hearing requirements; and 3) a mechanism for purging unsubstantiated allegations and "without merit" allegations. The bill, however, contains one problematic provision that is in apparent contradiction to the preponderance of evidence standard of proof: it allows an Administrative Law Judge to uphold a substantiation based solely on the admissible hearsay statement of a child. In addition, it is unclear if SB 98 will solve the many due process problems inherent in the Child Abuse Database. 

Open Government 

HB 285 Disclosure of Olympic-Related Transactions (passed) 

Because of the government money involved and the enormous public impact of the 2002 Winter Olympics, the ACLU of Utah has always maintained that the Salt Lake Olympic Committee should abide by Utah’s Open and Public Meetings Act. We were therefore very supportive of HB 285, which requires SLOC committees to adhere to Utah’s sunshine laws and establish records-access policies that are consistent with state laws regarding government documents. It is clear that HB 285 is a first step to an open and accountable Olympic organizational effort. Read our letter to the Utah State Senate. 

HB 21 Constitutional Revision Commission Amendments (passed) HB 21 prohibits the Constitutional Revision Commission from taking a position on any constitutional amendment already approved by legislators. Currently, a member of the public, the governor, or a legislator can request that the commission – which is a bipartisan panel that includes Supreme Court Justice Christine Durham and six legislators – review a constitutional issue. HB 21 was apparently drafted in response to the commission’s stated opposition to last year’s controversial Proposition 5. If it were law at that time, the commission could have made recommendations regarding the proposition, but would not have been able to oppose it. 

Department of Corrections 

HB 23 Department of Corrections Compensation Adjustment 

(failed but money for a 10% raise was allocated in the general budget) 

The ACLU of Utah supported HB 23, which allocated money to increase the salaries of state correctional officers so that they would be equal to the salaries in county jails. In a letter to House members, we argued that the proper training of correctional officers, along with the experience that results from long-term employment, create a safer environment for both inmates and those working within the state correctional system. It is therefore troubling that currently, correctional officers are leaving the Utah State Prison because they can be paid more at our county jails. By providing an incentive to leave state corrections, the existing salary disparity is a direct threat to a safe and constitutionally sound correctional system. Read our letter of support. 

Privacy 

HB 177 Substitute Genetic Testing Privacy Act (failed) 

Throughout the 1998 interim session, we worked with Representative Stephens to create a bill that would provide protections against employment and insurance discrimination based on genetic information. Unfortunately, the legislation that was finally submitted relied on a definition of genetic information that did not include family history, and therefore, did not provide adequate protections. We did not support HB 177, which died on the House floor. 

HB 278 Driver License Fees (passed) 

On its surface, HB 278 seems innocuous – it simply increases the application fees for a state driver’s license. However, the sponsor’s comments during a House committee meeting indicated that the additional money raised would be used to fund a new digitized license with a magnetic strip. In light of the sponsor’s comments, we are left to wonder if the revenue will also help pay for the Utah Driver License Division’s $4.5 million contract with Polaroid Corporation to create digitized photographs of all Utah’s licensed drivers and ID card holders. And, while we don’t like to engage in conspiracy theories, a front page article in the February 19, 1999 Salt Lake Tribune details a federally funded program to build a national database of driver license images. It is evident that the purpose of HB 278 is to provide funds for technologies that threaten individual privacy rights, and the ACLU of Utah therefore opposed this legislation. Read our letter to the Utah State Senate. 

Church/State Issues 

SB 159 Tuition Tax Credit (failed) 

SB 159 was our annual bill attempting to give an income tax credit to parents whose children attend private schools. It is largely viewed to be a first step to school vouchers. As in past years, the legislation failed, and this year, it never made it to the full Senate for a vote. In light of the Supreme Court’s decision last year to allow a Wisconsin voucher plan to stand, we were especially pleased by this year’s defeat. 

SB 62 Individual Income Tax Credit for At-Home Parents (passed) 

Beginning next year, SB 62 grants some stay-at-home parents a $100 tax break. Families eligible for the tax credit must have a parent who does not work outside the home, have a household income less than $50,000, and children 12 months and younger. The basis for such a law is to encourage stay-at-home parents, and the sponsor hopes to expand the program next year. 

Anti-SLAPP Suit Legislation 

SB 27 Substitute Citizen Participation in Government Act (failed.) 

SB 27 was Utah’s first legislative attempt to curb lawsuits against citizens who speak at public meetings. Since 1970, private companies have increasingly used SLAPP suits (SLAPP is an acronym for "strategic lawsuits against public participation") to silence community activists and citizens groups who have criticized their actions in public meetings. These suits often seek millions of dollars in damages that have supposedly resulted from the testimony of those who are exercising their First Amendment rights, and they have a chilling effect on public speech. The legislation did not make it out of the Senate Rules Committee, as it will be discussed further during the 1999 interim session. 

Hate Crimes Law 

SB 34 Substitute Hate Crimes Amendments (failed) 

SB 34 attempted to strengthen Utah’s Hate Crimes Law, and since its inception, the ACLU of Utah has advocated for the inclusion of First Amendment protections. The bill, which still presented some free speech and association problems, failed in committee and never made it to the Senate floor for a vote. 

Fair Housing 

SB 212 Second Substitute Fair Housing Amendment (passed) 

The initial version of SB 212 contained the troubling requirement that anyone who wished to file a complaint with the Fair Housing Division pay a $35 filing fee. In a letter to the Senate, we pointed out that courts have repeatedly found that such mandatory fees are unconstitutional, in that they create a system in which only those individuals who have money are guaranteed their right to equal protection under the law. The bill also initiated other provisions that would have caused us to lose our federal Fair Housing contract. The ACLU of Utah joined other community groups to oppose this legislation, and in light of our comments, the sponsor rewrote the bill so that it no longer posed any problems. Read our letter to the Utah State Senate. 

English Only 

HB 241 English as the Official Language of the State (failed) 

HB 213 Third Substitute English as the State Language of Utah (failed) After an intense lobbying effort by the ACLU of Utah and other organizations, the House voted against HB 241 (click here for more information about HB 241 and the ACLU’s position on English-only legislation). Three weeks later, Rowan tried to introduce HB 213, which was narrowly defeated. U.S. English, the national organization behind the English-only movement, has vowed to continue to collect signatures to put the initiative on the ballot in the year 2000. There are some clear Equal Protection and First Amendment problems with the initiative, and we will know by this November if we need to consider a legal challenge. 

SJR 3 English Plus Resolution (failed) 

SJR 3 was modeled after the resolutions passed by both the Ogden and Salt Lake City councils last year, in that it celebrated our state’s multilingual resources and opposed official English measures. It did not pass out of committee.