March 12, 2002
Governor Michael Leavitt
Utah State Capitol
Salt Lake City, UT 84114
Re: SB 183 “Costs Assessed for Wrongfully Enjoining a State Project”
Dear Governor Leavitt,
On the last day of the 2002 General Session, the Utah Legislature passed SB 183. This bill would allow any individual or organization who reasonably disputes a government action but ultimately does not prevail in court to become liable for all costs and damages resulting from temporary injunctions on construction projects. A single Utah citizen or public interest group would simply be unable to assume the risk of these costs, regardless of how meritorious their claim may be. This bill would therefore effectively block a large proportion of our citizenry from access to the courts and thus from participation in a fundamental aspect of the democratic process.
The ACLU believes that SB 183 violates individuals’ First Amendment right to petition the government and their right, under the Utah Constitution, of open access to the courts. We therefore encourage you to veto SB 183.
The “right of the people … to petition the Government for a redress of grievances” is one of “the great, the indispensable democratic freedoms secured by the First Amendment.” Thomas v. Collins, 323 U.S. 516, 530 (1945) (“It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable.”).
The threat of prohibitive liability costs would undoubtedly have a chilling effect on individual citizens and public interest groups who would be forced to choose between the prospect of bankruptcy and their right of access to the courts. Since no petitioner in court can ever be completely certain of the outcome, SB 183 would stifle the voices of citizens who have legitimate claims against state entities in connection with construction projects. The Supreme Court has recognized that “[t]he fear of damage awards … may be markedly more inhibiting than the fear of prosecution under a criminal statute.” New York Times Co. v. Sullivan, 376 U.S. 254, 277 (1964).
In our participatory democratic government, every citizen has the right to challenge a governmental action in court as long as they have standing and a reasonable basis for doing so. To punish a citizen who exercises this right but does not prevail in court is contrary to this fundamental democratic principle. To allow the prospect of such punishment to silence citizens with legitimate claims is an even greater violation of First Amendment rights. We therefore urge you to veto SB 183.