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Herbert vetoes Swallow-spawned subpoena bill, two others

At the deadline to veto bills Wednesday, Gov. Gary Herbert rejected three — including a reform arising from investigations into former Attorney General John Swallow that would have given the Legislature stronger power to enforce its subpoenas.

Herbert said that HB414 would “violate civil rights and is an overreach” by preventing people from fighting such subpoenas in court. The bill’s sponsor, Rep. Jim Dunnigan, R-Taylorsville, says the governor is incorrect, and courts would still have oversight.

Dunnigan said he may seek to override the veto, saying the bill is needed to outlaw ignoring subpoenas.

Meanwhile, Herbert also vetoed HB257, which would have given complaints about school curricula to a parent’s board that does not want that power and would rather have local school districts handle it.

He also vetoed HB102, which would have placed a year moratorium on local governments creating new “assessment areas.” Herbert said that inadvertently would have blocked several natural gas projects that some rural cities had lined up.

The governor also decided to allow three bills to become law without his signature: HB357 to require the executive branch to share data with legislators for budgeting; SB241 requiring the state to pay full costs of state prisoners in county jails; and SB261 tweaking how the state funds annual leave for employees.

He said those bills have technical problems that legislators have pledged to correct or clarify in future legislative sessions. Herbert also vetoed one line-item in a budget bill, saying he noticed that a $100,000 education project had been funded twice, so he erased one. He signed 453 bills passed this year.

Herbert wrote in his veto message about HB414 that, “I cannot sign a bill that demands information of anyone, at any time, on any subject, for any purpose and denies our citizens their fundamental constitutional rights of defense and due process.”

He noted that HB414 was written in the wake of the House investigation into Swallow, as subjects in the probe fought subpoenas, forcing delays and increasing costs.

“While I am sympathetic to that frustration, history has repeatedly shown us that government response to scandals can often be excessive and overreaching,” Herbert said.

HB414, he said, “ignores the checks and balances that are the basis for our system of government by exempting legislative subpoenas from judicial oversight,” which he said likely violates the Utah Constitution.

He said the only way to challenge a subpoena under the bill would be to go to the Legislature itself. Herbert — who noted he signed 10 other reform bills that grew out of Swallow scandals — complained HB414 even “criminalized any attempt by an individual” to appeal to a court, “punishable by up to one year in jail.”

Dunnigan, who led the House probe into Swallow, said the governor is misinterpreting his bill. He said the process it creates would require an initial appeal of a subpoena to go to a bipartisan legislative committee. But if the Legislature then seeks to enforce that subpoena it must either go directly to court itself, or go to a prosecutor — which would involve the courts — for an order.

“It does not criminalize any attempt to seek relief from the courts,” but does make it a crime not to comply with subpoenas when ordered, Dunnigan said. “For constitutional-rights issues, it’s inherent in this legislation that courts can have purview.”

Dunnigan said the committee that investigated Swallow recommended the bill after its subpoenas were often challenged, and found the courts would not schedule hearings for three months or more.

“Three months doesn’t work when you’re in an investigation,” he said, explaining investigators worry about evidence being lost or not being able to follow leads in a timely manner. “This bill was to try to get an expedited review from the courts so we could continue to do our work.”

Herbert’s veto message also complained that the bill “was voted on late in the session, too quickly, and without public hearing or input.” He said the final version of the bill “did not have a committee hearing in either the House or Senate.”

While problems with the bill were acknowledged in final debate, he said, “the message was, ‘We know it is flawed but we can fix it later.’ That sentiment may work with technical corrections to governmental programs, but should never be applied to a bill that denies citizens their rights.”

Dunnigan said members of his committee met with the governor last week to see if it could work out changes that might eliminate his concerns. “Evidently, we couldn’t get to the needed comfort level,” he said.

The Legislature is automatically polled to see if two-thirds would like to override the veto of any bills.

“My preference,” said Dunnigan, “is that the bill become law, and then we make some tweaks and adjustments to address the governor’s concerns.”

The final version of the bill passed 26-0 in the Senate, and 59-15 in the House. The Legislature can override a veto with 20 votes in the Senate and 50 in the House.

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