This is an archived article that was published on sltrib.com in 2006, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
Utah's controversial Proposition 5 was approved seven years ago with the intent of making it tougher to pass wildlife ballot initiatives.
It also is proving resistant to legal challenges.
The 10th Circuit Court of Appeals upheld the state law, ruling while an amendment requiring a two-thirds majority vote to pass a wildlife-related referendum is inherently more difficult - all other Utah initiatives require a simple majority vote - it does not translate into a violation of free speech.
Authoring the majority opinion released late Wednesday, Judge Michael McConnell, a Utahn, said that there is no doubt that those challenging the state law "are sincere" when they say they are dispirited by the heightened threshold for wildlife initiatives and feel "marginalized" or "silenced" in the wake of Proposition 5.
"Their constitutional claim begins, however, from a basic misunderstanding," he wrote. "The First Amendment ensures that all points of view may be heard; it does not ensure that all points of view are equally likely to prevail."
The 50-page opinion, which drew three dissents and one partial dissent, echoes the decision issued in 2001 by Utah U.S. District Court Judge Tena Campbell, who rejected a motion to dismiss the case because the plaintiffs lacked standing, but upheld the state law on its merits.
Proposition 5 was approved with 56 percent of the vote after a long, expensive and often-vitriolic campaign, with backers fueled by a large campaign chest (nearly $600,000) and the argument that allowing wildlife issues to be decided at the ballot box by a simple majority would hand Utah's wildlife management over to out-of-state interests.
Opponents cried foul over what they called a misleading media campaign and said passage of the proposition would insure that wildlife policy in Utah would be dictated by the state's powerful hunting lobby.
The new law took effect in 1999 and was challenged the following year by a coalition of groups that included the Humane Society, the Washington D.C.-based Initiative and Referendum Institute and the Utah Environmental Congress.
Proposition 5 opponents argued that the very hurdles imposed by the law would make it impossible to muster enough interest in putting any wildlife initiative on the ballot, essentially taking such issues off the table as far as the public is concerned.
Dissenting Judge Carlos F. Lucero concurred with the opponents, noting that now, "regardless of whether a future majority - even a 66 percent majority - of the population supports a change in wildlife laws, such future majority will be unable to use the initiative process to enact its preferences into law."
But McConnell countered that "there is a crucial difference between a law that has the 'inevitable effect' of reducing speech because it restricts or regulates speech, and a law that has the 'inevitable effect' of reducing speech because it makes particular speech less likely to succeed."
The majority also rebutted the argument that the amendment language was overly broad, illegally singling out those concerned with wildlife issues while giving greater voter strength to those seeking to pass nonwildlife issues.
"State constitutions attach supermajority requirements to a bewildering array of specific categories of legislation, including appropriations bills, tax levies, bonding bills, debts, land use regulations, the salaries and discipline of state officials, district formation and redistricting and judicial administration," McConnell wrote.
"If it violates the First Amendment to remove certain issues from the vicissitudes of of ordinary democratic politics, constitutions themselves are unconstitutional."
Phone calls seeking comment from two groups involved in the lawsuit were not returned late Wednesday.