Gehrke: Utah Legislature’s power trip violates basic constitutional safeguards

Francisco Kjolseth | The Salt Lake Tribune Robert Gehrke.

If the number of drunken driving arrests that the Utah Highway Patrol makes every year dropped to a level the Utah Legislature deemed inadequate, would it make sense for the disgruntled lawmakers to hire their own troopers to haul in more motorists?

That is, in essence, what they’re trying to do when it comes to court fights over laws they pass.

Earlier this year, lawmakers adopted Senate Bill 171 — for my money, one of the session’s worst bills — which gives the Legislature the “unconditional right” to intervene in any challenge to any action it has taken.

That might hurt your feelings if you’re Utah Attorney General Sean Reyes because it’s the Legislature’s job to make the laws, the governor’s job to execute them and Reyes’ job to defend them in court.

If you snoozed through your junior high civics class (or are a member of the Utah Legislature), that’s called separation of powers, and it’s pretty fundamental — a concept that SB171 blatantly breaches.

Gov. Gary Herbert, to his credit, recognized it as such and vetoed the bill, sending a strongly worded letter to legislative leaders to drive home the point that defending legal challenges “is inherently part of the executive’s role of executing the law.”

Now, the Legislature is convening a veto override session Wednesday to try to steamroll the governor’s objection and muscle the law into the books. It would be a terrible mistake.

Several times during the session, I asked the measure’s sponsor, Senate Majority Whip Stuart Adams, R-Layton, about any case in which he felt the Legislature wasn’t adequately represented or any bill he anticipated would need defending.

He said there weren’t any, but the bill was needed just in case.

Based on that notion, the Legislature budgeted $700,000 a year with the goal of hiring three attorneys, a paralegal and a legal secretary to represent the body. Seems like a lot for “just in case,” but maybe, if they have lots of free time, they can catch up on “Westworld” or “Stranger Things.”

It’s also possible — and more ominous — they’ll stay busy.

Currently, there are 35 challenges to the constitutionality of state laws, according to the legislative counsel’s office. In all 35 cases, lawyers from the attorney general’s office are defending the state.

Under SB171, the Legislature could intervene in any or all of those cases if it felt like it wasn’t having its position heard. Imagine how fun that would be for the judge to have two attorneys, both representing the state, making different and potentially contradictory arguments on the same law.

It’s conceivable that, at that point, the attorney general’s office could try to have the Legislature excluded by challenging the constitutionality of the intervention itself. How much fun would that be?

But SB171 doesn’t just let the Legislature get into the middle of constitutional challenges. As it is written, it also would grant the Legislature “an unconditional right” to intervene in any case in which “a party to that court action challenges … any action of the Legislature.” (I added the emphasis.)

In an internal email exchange between senators, Sen. Curt Bramble, R-Provo, captures the scope of this.

“Does this mean the Legislature could intervene on a tax case? A child custody case? A liability case?” he asks. “In other words, does the term ‘any action of the Legislature’ have universal applicability to authorize the Legislature to intervene in virtually any state court action since all laws are, by definition, actions of the Legislature?”

It’s clear by the language of the statute, it could do just that — and probably more. Say the Legislature appropriates road money and a dispute erupts between two companies bidding for the contract — the Legislature could insert itself into that, as well.

The scope is practically limitless, and, as Herbert warned, could apply “in thousands of cases.”

In the same exchange with senators, Sen. Todd Weiler, R-Woods Cross, said legislative attorneys have cautioned that, if the Legislature intervenes in a case, lawmakers may lose their legislative immunity and be compelled to testify and turn over documents as part of the case — something they are shielded from now.

Legislative lawyers contend that the bill is constitutional, that the attorney general is not the sole keeper of the state’s legal authority and that legislators can intervene when they want. And I wouldn’t argue that they should never be a party in a case.

But those occurrences should be the exception, not the rule, and at the discretion of the judge. SB171 doesn’t respect those limitations and is an unnecessary and possibly unconstitutional overstep of those boundaries.

Hopefully, lawmakers will recognize its weaknesses and let it die without overriding the governor’s veto.

If they do override, maybe next session Reyes should sponsor legislation to repeal it. After all, if legislators are so gangbusters to do the attorney general’s job, it’s only fair to let the attorney general do theirs.