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2003 Utah Legislative Report

31 December 2002 Published in Legislative Reports

Partial Birth Abortion Amendments

Prohibition for Public Funding of Abortion

Pledge of Allegiance in Public Schools

County Correctional Facility Reimbursement

Sentencing in Capital Cases Amendments

Hate Crimes Amendments

Open and Public Meetings Act

Resolution Reaffirming Protection of Liberties and Civil Rights of Citizens of Utah

Tax of Sexually Explicit Materials

Resolution Calling for Constitutional Amendment Defining Marriage

Library Amendments

Alcoholic Beverage Amendments

Partial Birth Abortion Amendments: HB 241 Failed

A senator stopped mid-sentence in arguing the merits of a substitute abortion bill to announce that it was past midnight and the clock for the 2003 session had run out.  

HB 241 would have altered Utah’s 1996 abortion ban by removing the exemption for a mother’s health, was an attempt to target a rarely performed abortion procedure, and would have included criminal penalties for doctors who perform the procedure. The intended targeted procedure was reportedly performed only once in the past fifteen years in Utah.

The Supreme Court has ruled that bans cannot place undue burdens on women seeking abortions, nor can they bar a woman from getting one for health reasons. 

HB 241 also contained an unconstitutionally overbroad definition of banned conduct. Although meant to target so-called partial birth abortions, it failed to narrowly target a ban of a single procedure, but instead would have banned many safe, common abortion procedures, including D&E, the most common method of abortion used in the second trimester, before fetal viability. 

Interestingly, a Deseret News/KSL-TV poll, published on January 22, 2003, indicated that 77 percent of Utahns favor so-called partial birth abortions in cases where the health of the mother is at risk. 

The ACLU of Utah delivered letters to the relevant House and Senate Committees warning that HB 241 was constitutionally flawed. The letters also encouraged the legislature to refrain from passing a bill in an attempt to prohibit almost nonexistent conduct in this state, and which would result in costly litigation. The Supreme Court struck down a nearly identical version of the same bill in Nebraska in 2000, which cost nearly $1 million in state litigation costs.

HB 241’s sponsor said although he knew his measure to outlaw partial-birth abortions might have been deemed unconstitutional, he believed it would have established important legal precedence. “The sponsors admitted the practical effect of their bills may have been unclear even to them, but they believed it was important to try to make Utah’s attitude about abortion perfectly and legally stated in statute…” (Deseret News 3/6/03)

Utah’s existing abortion law is cited by U.S. Supreme Court’s Justice O’Connor as a model method wherein states can address this issue without violating the constitution.

Read the ACLU of Utah’s letter on HB 241 >> 

Prohibition for Public Funding of Abortion: HB 123 Failed

This bill initially prohibited any public money from being spent directly or indirectly for an abortion unless the woman’s life was at stake.  

The ACLU of Utah submitted letters indicating that courts within the jurisdiction of Utah have held that state governments cannot prohibit public funding for abortions in cases where the state receives Medicaid funding and the mother’s life is threatened or where the mother is the victim of rape or incest. Within a week the bill was amended to allow public funds to be used for abortion in cases of rape and incest. 

The bill did not include a Medicaid requirement that gives a victim of rape or incest the option of asking for a waiver of the need to file a police report before undergoing an abortion. Such an omission arguably placed Utah’s federal Medicaid funds, about $1 billion, at risk. 

The bill failed to pass before time ran out in the legislative session. There were many unanswered questions about the wide-reaching fiscal ramifications.

Read the ACLU of Utah’s letter on HB 123 >>

Pledge of Allegiance in Public Schools: SB 105 Passed

SB 105 requires that the pledge of allegiance be recited weekly at the beginning of the day in all secondary schools in the state. It further provides that students are to be informed by a notice, which will be posted in a conspicuous place in the school, that they have the right not to participate in reciting the pledge. 

The U.S. Supreme Court held in 1943 that compulsory recitation of the pledge for students in public schools violates the First and Fourteenth Amendments. “Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” While the ACLU of Utah supports the goal of enhancing all students’ understanding of patriotic exercises and encouraging respect for this country, this mandated recitation is misdirected and excessive. 

The bill passed both houses of the legislature.

County Correctional Facility Reimbursement: HB 112 Passed

This new law instructs judges to order a defendant to pay restitution to the county for the costs of his or her incarceration. Based upon public policy considerations, the ACLU of Utah submitted a letter to Governor Leavitt asking him to veto this bill. An overwhelming majority of inmates are poor and cannot pay charges. The last statistic provided us by the national ACLU indicated that 90% of inmates are well within the poverty level. Under-educated, under-employed and poor, inmates leave incarceration to more uncertain employment opportunities. It is counterproductive to thwart rehabilitative efforts with a large bill that former inmates cannot pay. While such legislation provides an opportunity for politicians to take a stance that appears to be tough on crime, as a practical matter it further penalizes those citizens who are already having difficulty coping with harsh economic realities.

Sentencing in Capital Cases Amendments: SB 8 Passed

Last year the U.S. Supreme Court ruled in Atkins v Virginia that the execution of a mentally retarded person violates the Eighth Amendment and constitutes cruel and unusual punishment. The Court based its conclusion upon “the evolving standards of decency in a maturing democracy” and stated “we are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty.” Accordingly, state legislatures were mandated to revise death penalty statutes.

During the summer of 2002, we submitted an extensive review of the Special Session proposed Amendments. Our review dealt with the definition of mental retardation, the procedural matters related to sentencing, scope of examination, a defendant’s failure to cooperate, and limitations on admission of evidence. 

We found Utah’s final bill to be constitutional with respect to the Atkins decision: The definition of retardation is acceptable and workable; the age limit on determination, 22, is improved over the suggested 18; the pre-trial determination by a judge, based upon expert witnesses, is cost-saving and serves to make mentally retarded defendants ineligible for the death penalty, rather than introducing it as a mitigating factor in sentencing; and, the standard of “preponderance of the evidence” is correct when determining retardation. We also supported the provision that persons not legally mentally retarded but who have subaverage functioning are not death penalty eligible if the only evidence available is their confession. 

There was controversy as to whether the ultimate finding on retardation should be a matter for the judge or the jury, with respect to the 2002 Ring case precedent. But SB 8, overall, was well drafted and benefited from input from a variety of concerned coalitions and experts.

Hate Crimes Amendments: HB 85 Failed

This bill would repeal the 1992 Hate Crimes legislation that was deemed overly broad and unenforceable. This act would modify the Utah Criminal Code by enhancing penalties for the criminal act of violence or vandalism motivated by a defendant’s bias or prejudice toward a group. The term “group” is defined as including race, color, disability, religion, sexual orientation, national origin, ancestry, age, or gender of any individual or group of persons. In order for a defendant to be convicted of a hate crime, the prosecution must prove beyond a reasonable doubt that the criminal act was perpetrated based upon the bias of the defendant. 

While the ACLU did not take a formal position on this legislation, we did not object to it because language was included in the bill that prohibits the “trier of fact” from basing a “finding that the defendant acted because of a bias or prejudice solely on evidence of a defendant’s mere beliefs, associations, or expressions.” This language will reduce or eliminate the possibility that the government could obtain a criminal conviction on the basis of evidence of speech that had no role in the chain of events that led to any alleged violent act proscribed by the statute. 

This legislation has been proposed for six consecutive years, and this is the first time it has reached the House floor for debate. The bill was passed in the House by a 38 to 35 vote. After it passed in the House, it was recalled the following day with a 42-32 vote to lift it from the Senate calendar and return it to the House. It was not addressed in the House before the end of the session. The sponsors have indicated plans to introduce the bill again next year.

Open and Public Meetings Act: HB 52 Failed

This bill would have modified the existing Open and Public Meetings Act by eliminating the exemption for political party groups, caucus meetings, conference committees, rules committees, and sifting committees to convene closed door meetings. The bill defines “convening” as the calling of a public body by an authorized person for the purpose of discussing or acting upon a subject over which that public body has jurisdiction. “Meeting” is defined as the convening of a public body, with a quorum present, for the purpose of discussing or acting upon a matter over which the public body has jurisdiction or advisory power. 

The legislation, sponsored by Representative Scott Daniels, was debated in the House Judiciary Committee. The bill failed to receive the necessary votes from committee members to pass it to the House floor for debate. It was returned to the Rules Committee never to be seen again. The ACLU of Utah supported the concept underlying the bill. It would provide for a more open and accountable government in Utah. However, the Utah Constitution provides the authority for the Legislature to make its own governing rules. Since Republicans control both houses by a large majority, they could decide to open all committee meetings where public policy decisions are made. This move by the majority party would be a step toward open debate and decisions. As Damon Keith, a circuit court judge, said so eloquently, “Democracy dies behind closed doors.” The ACLU of Utah maintains that legislators should do the right thing and open the doors.

Resolution Reaffirming Protection of Liberties and Civil Rights of Citizens of Utah: HJR 19 Failed

This resolution was introduced to uphold and defend the fundamental rights provided by the U.S. Constitution. Reiterating the importance of freedom of religion, speech, and assembly, the right to privacy, protection from unreasonable searches and seizures, due process, equal protection and fair trial provisions, the resolution called upon the legislators to recognize that any infringements were an abuse of power and a breach of the public trust. 

This resolution was apparently drafted in response to the Homeland Security Act and the USA PATRIOT Act and their subsequent extreme expansion of government power. The resolution calls upon government bodies in Utah to recognize that legitimate efforts to protect the citizenry from acts of aggression should be conducted in a rational and deliberative fashion and not infringe upon basic constitutional rights. 

The session ended before the resolution could be debated.

Tax of Sexually Explicit Materials: HB 300 Failed

This bill would have taxed sexually oriented products and businesses in an effort to raise money for tax coffers. Drawing a connection between sex materials, financial gain and state funded sex offender programs, the sponsor, a director of a nonprofit which holds several state contracts dealing with sex offenders, was hoping to shore up several state programs.

There were many logistical and constitutional hurdles to the bill and its concept: taxing Internet sites, defining “sexually-explicit,” and taxing industries with First Amendment protection. 

Levying a tax on expressive activity based upon content is impermissible. As the U.S. Supreme Court has held, the raising of governmental revenue cannot justify special treatment of an expressive activity because there are other alternatives that would avoid the censorial threat implicit in such a tax. After four amendments, the bill failed to pass.

 Resolution Calling for Constitution Amendment Defining Marriage: Abandoned

This resolution would have urged the federal Congress to add a Federal Marriage Amendment to the U.S. Constitution. Such an amendment has previously been sponsored by Utah Congressman Chris Cannon, and defines marriage as a union only between a man and a woman. 

Constitutional amendments are not to be taken lightly. Such an amendment would be the first one in our nation’s history to diminish rather than support basic individual civil liberties. This amendment would have far reaching implications on the extension of legal incidents to unmarried couples. Same-sex marriages are not currently legal in the US and thus such an amendment would alter thousands of laws without its intended effect. Four million children currently being raised by same-sex couples could be tremendously impacted, increasing current difficulties in obtaining those benefits available to children of traditional families. 

The resolution was abandoned.

Library Amendments: SB 87 Passed

Prior to this year the Utah Legislature had a long history of supporting community based public libraries where a library board, not elected officials, had the exclusive control over construction, supervision, and of the expenditure of moneys. Library boards were also policy-making entities.  

This legislation removes policy authority from the library boards and places it with elected officials, at the county level, potentially altering book selection, computer access and hiring of the library director, as well as altering building ownership and management of private donations. This removes the traditional insulation of public library policies and collections from transitory political agendas. 

Although ostensibly meant to deal with liability issues, the ACLU of Utah is very concerned about the ramifications on policy decisions and the necessary independence of a library board. This has special ramifications for librarians who have traditionally been hailed as guardians of liberty and free expression.

Alcoholic Beverage Amendments: SB 153 Passed

As reported by the Salt Lake Tribune on February 3, 2003: “A few months ago, a select group of insiders began the politically perilous task of revamping Utah’s liquor laws. Three major interests were represented: the Utah Department of Alcoholic Beverage Control, the hospitality industry and The Church of Jesus Christ of Latter-day Saints. 

While the content of the liquor law amendments have been controversial and will have a significant impact on clubs and micro-breweries, ACLU constitutional concerns were based upon any violations of open meetings laws. The public was concerned that no other religious or non-business public groups were invited to participate in the drafting of at least the basic concepts of the new law. 

Apparently in an effort to avoid the issue of illegal meetings, which the DABC has admitted to in the past, no more than two commissioners were ever present at these initial meetings. A GRAMA request for records revealed no explicit evidence of technical wrongdoing on the part of the DABC. The public, however, was once again less than inspired when apprised of the “process.”

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