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2002 Utah Legislative Report

01 January 2002 Published in Legislative Reports

 Legislature revisits school uniforms. 

HB 5 “School Uniform Amendments” removes the right parents previously had to request that their children be able to opt-out of a school uniform program. Now, only the principal has the power to grant exemptions to students with “extenuating circumstances.” 


Bill banning genetic discrimination finally passes. 

HB 56 “Genetic Privacy and Discrimination” prohibits employers from requiring genetic testing or using private genetic information for hiring, retention, and promotion decisions. The bill also places restrictions on health insurers’ use of genetic information when determining whether to offer or renew health insurance policies, or when setting premiums. One weakness of the bill is that the definition of genetic information, which includes information derived from genetic tests of an individual and their blood relatives, does not include family health history. 

Mental retardation to be considered in capital offenses. 

HB 77 “Criminal Sentencing - Mitigation Amendments” modifies the criminal code by including mental retardation as a mitigating factor to be considered when determining whether the death penalty shall be imposed for a capital felony offense  

“In God We Trust” is now in Utah public schools. 

HB 79 Sub 1 “School Display of Motto of the United States” mandates that all Utah public schools display “In God We Trust” “in one or more prominent places within each school building.” The bill was part of a national campaign led by the American Family Association, an evangelical Christian group based in Tupelo, Mississippi, which seeks to pass this type of legislation in all states. The AFA claims that the posting of “In God We Trust” “will be a reminder of the historical centrality of God in the life of our republic,” and will focus schoolchildren on “the major role Christianity played shaping the individuals and events who made history.” Utah and Mississippi are the first states to codify this campaign into state law.

Click here for additional information about HB 79 >> 

Email restrictions may pose free speech concerns. 

HB 80 Sub 3 “Unsolicited Commercial Email” and HB 143 “Restrictions on Sexually Explicit Email” establish criminal penalties and civil causes of action against those who send unsolicited commercial or sexually explicit email through a Utah email service provider or to any Utah resident’s email address and who fail to meet certain requirements. HB 80 applies to email “for the purpose of promoting the sale, lease, or exchange of goods, services, or real property;” HB 143 applies to email that contains, promotes, or provides a link to material that is “harmful to minors,” as defined by Utah law. Both bills may impermissibly infringe on individuals’ free speech rights by restricting speech “harmful to minors” regardless of whether minors have access to the speech and by restricting commercial and personal speech without providing adequate notice of the restrictions. For example, these bills would apply to email sent to Hotmail or AOL accounts of Utah residents although senders of such email may not know the residences of the recipients. They may also be invalid state regulation of an activity that crosses state and international boundaries. 

Two bills broaden the definition of “terrorist.” 

HB 100 “Criminal Code Definition Amendments” reenacts last year’s commercial terrorism statute that was deemed unconstitutional after we filed a lawsuit and preliminary injunction on behalf of the Utah Animal Rights Coalition. While the new law does not go so far as to criminalize protected speech, it continues to label as “terrorists” and threaten heavy felony penalties on anyone who engages in minor acts of civil disobedience, vandalism, or mischief. Lawmakers were not at all moved by the fact that had such a measure been in effect during the civil rights movement of the 1960’s, Rosa Parks and Reverend Martin Luther King, Jr. could have been labeled “terrorists” and sent to prison for up to fifteen years.  

HB 283 Sub 1 “Antiterrorism Amendments” takes on what the United Nations has been unable to do for more than sixty years: come up with a definition of terrorism. Unfortunately, the definition lawmakers came up with is overly broad and could criminalize protected First Amendment speech. The bill defines terrorism in part as the “intent to intimidate or coerce a civilian population or to influence or affect the conduct of a government” when accompanied by a threat “involving bodily injury, death, or substantial property damage.” The concern is that speech that is intended to “influence the conduct of government” and then goes awry (for example, a participant in a demonstration throws a rock and injures someone) is a situation in which an individual could conceivably be indicted for terrorism. 

Database established to collect race information on police stops. 

HB 101 Sub 1 “Racial Profiling” seeks to move allegations of racial profiling from the anecdotal to the factual realm by creating a database tracking the race of motorists and pedestrians who are stopped by the police. Beginning in July, race data will be collected from all traffic and pedestrian stops, regardless of whether these stops result in citations. By relying on race information on drivers’ licenses and state identification cards, the bill seeks to avoid the subjective decisions law enforcement officers are bound to make if they have to determine an individual’s race. The Department of Public Safety will establish the database and the Commission on Criminal and Juvenile Justice will have access to the information for evaluation purposes. The law addresses privacy concerns by providing that those who refuse to disclose race information to the Driver License Division will not be denied a drivers’ license or identification card. Because race information is voluntary, is collected only over a five-year period, and because the database does not include information about out-of-state drivers, it is unclear if the evaluated data will provide a more complete picture of the problem of racial profiling. 

Who would have thought legislators would violate the supremacy clause? 

HB 113 “Insect Control on Federal Lands” allows Utah’s commissioner of agriculture to declare an insect infestation emergency on federal lands and direct emergency measures to alleviate the situation. While seemingly innocuous, the bill is likely an invalid attempt to assert state jurisdiction over federal property, and under the Property Clause and the preemption doctrine of the Supremacy Clause of the United States Constitution, the State of Utah simply does not have the power to make land management decisions on federal land. 

Lawmakers expand state’s DNA database. 

HB 154 Sub 2 “Expansion of DNA Database” requires DNA specimens to be collected from anyone who has pled guilty to or been convicted of any felony charge or class A burglary offense. The law applies to juveniles as well as adults, which raises some due process concerns since minors are not prosecuted criminally and have fewer rights than adult offenders. Beginning July 1, law enforcement will gather physical samples from probationers, parolees, and inmates. The law imposes a $75 fee for those who must provide the specimen, and does not include criminal liability or civil penalties for anyone who shares information from the database with persons who are not authorized to receive it. There are no provisions in the law defining what must happen to the physical samples after information is posted in the database. 

Unsuccessful bill sought to curb police arrest powers. 

Last spring, the United States Supreme Court upheld the power of the police to make a full custodial arrest even for minor offenses punishable only by fine. In Atwater v. Lago Vista, the court considered a case in which a Texas woman was arrested, handcuffed, booked, photographed, and placed in a jail cell for an hour after being stopped by the police for driving without a seat belt. Despite the fact that the maximum penalty for the offense was a $50 fine, the court rejected the claim that the decision to arrest the plaintiff was a disproportionate response to any legitimate state interest and therefore unreasonable under the Fourth Amendment. A particularly troubling consequence of this judgment is the fact that once an individual is arrested, police no longer require probable cause to search a vehicle. Like Texas, Utah law allows police officers to make warantless arrests for minor offenses. HB 188 “Arrest Authority of Peace Officers” sought to limit this incredible power by excluding infractions and class C misdemeanors. 

Porn czar attempts to clarify Utah’s public nudity statute. 

In an effort to make our public nudity statute constitutional, HB 236 “Indecent Public Display Amendments” redefines “indecent” material and includes an exemption for public displays “having serious literary, artistic, political, or scientific value for persons younger than 18 years of age.” However, the possibility of exemption only extends to certain materials, and others may still be declared categorically “indecent.” For example, while a book that includes a description of “fondling or other erotic touching of the human buttock or female breast” may now be judged of serious value, a book with any description of “fondling or other erotic touching of human genitals or pubic region” cannot be judged of value and will thus be considered “indecent” without regard to the nature of the description or the work as a whole. In addition to being completely confusing, the statute is overly broad and may not be sufficiently narrowly tailored to serve a legitimate governmental interest. 

Due process rights weakened. 

HB 245 “Amendments to Sex Offender Registry” modifies the sex offender registration requirements by adding procedures to track the enrollment and employment at a college or university of those who have been convicted of a sex offense. The legislation inserts language into Utah’s sex offender registry statute from last year’s federal Campus Sex Crimes Prevention Act, which also requires higher education institutions to inform students where they can find the state’s registry of sex offenders. Because Utah’s sex offender database is one of the broadest and most accessible in the country, Utah’s version of the federal law poses due process problems other states may avoid.  

Due process rights strengthened. 

HB 295 “Taking Minor Into Protective Custody Without a Warrant” requires that a law enforcement officer or child welfare worker must have a warrant before removing a child from the home, except under limited circumstances, including imminent danger to the health or safety of the child. The law moves Utah closer to constitutional standards, which require that, absent narrowly defined exigent circumstances, a child can be removed from his or her family only when an independent judicial officer issues a warrant authorizing the removal.

Click here for more information on HB 295 >> 

Both hate crimes bills fail. 

SB 64 “Criminal Code Amendments” provided enhanced penalties for crimes committed against a person or property because of specified characteristics of an individual or group of persons. Rather than employing enhanced penalties, HB 151 “Hate Crimes Amendments” sought what some have labeled “restorative justice,” and urged judges to assign community service hours and diversity training to those convicted of hate crimes. Unlike SB 64, HB 151 prohibited courts from considering “evidence demonstrating the defendant’s mere abstract beliefs; evidence of the defendant’s mere membership in an organization; or any evidence of the defendant’s expressions or associations, unless the evidence is specifically related to the offense for which the defendant was convicted.” Both bills included sexual orientation in their lists of protected categories.

Click here for additional information on hate crimes legislation >> 

Tuition tax credit proposal fails again.

Once again, the Utah State Legislature considered granting families tax credits to be used for private school tuition. Many proponents of the measure thought such a proposal would pass this year, and dismissed concerns that by redirecting tax dollars from the public treasury to private and parochial schools, the bill would result in a variety of constitutional problems. Namely, tuition tax credits would permit state support of schools that do not provide students with basic due process rights, of schools that discriminate against student applicants on the basis of any factor that is not explicitly racial, of schools that do not guarantee free speech and expression for students or employees, and last but certainly not least, of religious schools. Ultimately, the financial impact of SB 69 Sub 1 “Tuition Tax Credits and Payments to School Districts” may have led to its demise, and the bill never made it to the Senate floor. 

Lawmakers decide life begins at conception. 

SB 178 “Protecting the Unborn Child” amends our criminal homicide law to include the death of an “unborn child at any stage of its development.” Thankfully, the bill includes an exception for abortion. The title of HJR 10, a bill that passed the House but wasn’t considered by the Senate, says it all: “Resolution Urging Federal Constitutional Amendment to Protect the Life of the Unborn.” And finally, SB 54 “Women’s Health Care Parity” and its weaker counterpart, SB 112 “Insurance Coverage of Contraceptives” didn’t make it out of committee. 

Governor vetoes unconstitutional construction bill. 

On the last day of the session, legislators passed SB 183 Sub 1 “Costs Assessed for Wrongfully Enjoining a State Project.” The bill would have allowed 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. Because there is simply no way a single Utah citizen or public interest group could assume the risk of these costs, regardless of how meritorious their claims may be, SB 183 would have effectively blocked a large proportion of our citizenry from access to the courts and from participation in a fundamental aspect of the democratic process. In a win for First Amendment rights, Governor Leavitt vetoed the bill. 

Read our letter to Governor Leavitt >>

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