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2003 Legislative Report
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
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.
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.
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.
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
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.
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.
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
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
initially prohibited any public money from being spent directly or indirectly
for an abortion unless the woman’s life was at stake.
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.
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.
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
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.
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.
passed both houses of the legislature.
County Correctional Facility
Reimbursement: HB 112 Passed
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
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.
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.
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
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
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
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.
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
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
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.
ended before the resolution could be debated.
Tax of Sexually Explicit Materials:
HB 300 Failed
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.
many logistical and constitutional hurdles to the bill and its concept:
taxing Internet sites, defining “sexually-explicit,” and
taxing industries with First Amendment protection.
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
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.
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.
Library Amendments: SB 87 Passed
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.
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
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.
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.
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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