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Access to Courts
Representative
Aaron Tilton has proposed three bills that unconstitutionally limit
the rights of organizations and individuals to go to court to challenge
state and federal decisions related to the environment. HB
100 “Environmental Litigation Bond” is in response
to the Sierra Club’s successful legal challenge to the Legacy
Highway. The bill requires that before initiating “environmental
litigation,” all entities registered to do business in Utah,
including nonprofit organizations, post a bond with the Division
of Corporations and Commercial Code “in an amount that will
cover the payment of the reasonably foreseeable costs and damages
suffered in Utah by any person” because of the litigation.
The bond, which could be for millions of dollars, would effectively
make it impossible for environmental groups to file a lawsuit under
31 federal and state laws, including the Endangered Species Act,
the Clean Air Act, and the Atomic Energy Act.
HB
259 “Division of Air Quality – Bond for Stay of an Order”
and HB
335 “Radiation Control Act – Bond Requirements,”
also sponsored by Representative Tilton, require a person to post
a bond before filing a motion for a stay of an order of either the
Air Quality Board or the Radiation Control Board.
The right of access to the courts is an aspect of the First Amendment
right to petition the government for a redress of grievances as
well as the Due Process Clause of the Fourth and Fourteenth Amendments,
and all three of these bills unconstitutionally restrict that right.
STATUS: On Tuesday, HB 100 and HB 259 passed out of the House Natural
Resources, Agricultural, and Environment Standing Committee. They
will now go before the entire House. HB 335 has not yet been assigned
to a committee.
Lesbian
and Gay Families
Representative
LaVar Christensen has also proposed a trio of problematic bills.
All attempt to restrict lesbian and gay couples from receiving the
same benefits and protections for their families as straight couples.
HB
327 “Public Employer Benefit Plans” is likely in
response to Salt Lake City’s proposal to provide domestic
partner benefits to its employees. The bill restricts the definition
of “dependent” to an employee’s spouse, child,
or stepchild; allows for the extension of benefit plans to non-dependents
only through an action by a legislative body, such as a city council;
and prohibits cities from using public funds to pay for benefit
plans to non-dependents. It is unclear whether the costs associated
with the Salt Lake City Council’s proposed benefits plan would
violate this last provision.
HB
148 “Parent and Child Amendments” is in response
to a visitation case between two women who had a child together
and then ended their relationship. The bill deals with in loco parentis,
which is the legal recognition of a voluntary delegation of parental
authority to another person. HB 148 prohibits courts from legally
recognizing as in loco parentis relationships that are “outside
the law or which are in violation of public policy;” states
that in loco parentis “may not be established … contrary
to the expressed desires of a [biological or adoptive] parent;”
and prohibits courts from using in loco parentis to grant visitation
rights.
And finally, HB
304 “Voiding Transactions Against Public Policy”
is likely an attempt to ban contracts between same-sex couples about
such things as property, medical power of attorney, and child custody.
STATUS: Yesterday, HB 327 passed out of the House Retirement and
Independent Entities Committee. HB 148 has been assigned to the
House Judiciary Committee. On Tuesday, HB 304 passed the House Law
Enforcement and Criminal Justice Committee.
Voting
Rights and Election Laws
Two bills—First
Substitute SB 47 “Restoration of Voting Rights Amendments,”
by Senator Brent Goodfellow, and SB
181 “Restoration of Felon’s Right to Hold Office,”
by Senator Parley Hellewell—provide that the restoration of
a convicted felon’s right to vote applies to those convicted
of felonies in courts inside and outside of Utah. Both also provide
for the restoration of a convicted felon’s right to hold office.
STATUS: SB 47 has moved quickly through the legislature and is now
on the House floor. Today, SB 181 passed out of the Senate Judiciary,
Law Enforcement, and Criminal Justice Committee.
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Student Clubs
On Tuesday, Senator Chris Buttars finally introduced language for
SB
97 “Student Club Amendments.” The bill attempts
to circumvent the requirements of the federal Equal Access Act and
ban Gay Straight Alliances in public high schools. The bill’s
most troubling provision is that it expands the definition of “involve
human sexuality”—one of the non-curricular club topics
already prohibited by Utah law—to include “promoting
or encouraging self-labeling by students in terms of sexual orientation”
and “disclosing attitudes or personal conduct of students
or members of their families regarding sexual orientation, attitudes,
or belief.” Senator Buttars seems to forget that sexual orientation
includes heterosexuality as well as homosexuality and that students
have First Amendment rights.
STATUS: SB 97 has been assigned to the Senate Education Committee.
Read
about our cases regarding the East High Gay Straight Alliance >>
Evolution in Public Schools
Senator
Buttars’s anti-evolution bill—SB
96 “Public Education – Instruction and Policy Related
to the Origins of Life”—passed the Senate and has
been assigned to the House Education Committee, which may consider
the bill as early as next week.
Read our letter opposing SB 96 >>
Material
Harmful to Minors
Last
Friday, the House Judiciary Standing Committee voted 6-6 on a bill
that would have added depictions of “inappropriate violence”
to our state statute defining “material harmful to minors.”
HB
257 “Material Harmful to Minors Amendments,” proposed
by Representative David Hogue, would have had difficultly overcoming
its constitutional problems, most notably the fact that depictions
of violence do not fall within the legal definition of obscenity
and are given the highest degree of First Amendment protections;
and that it did not define “inappropriate violence”
with enough specificity to avoid vagueness problems.
STATUS: The tie vote allows the bill to be brought back before the
committee, although there are no indications that this will occur.
Reproductive
Rights
The
legislature is considering two bills that compromise a woman’s
right to choose. First
Substitute HB 85 “Abortion by a Minor – Parental Notification
and Consent” requires, except in very limited circumstances,
that minors notify and receive consent from their parents or guardians
before obtaining an abortion. The bill ignores the rationale of
myriad court decisions, which state that minors must be able to
bypass parental notification requirements by having the opportunity
to go court to establish either that parental notification is not
in their best interests or that they are sufficiently mature to
decide whether or not to continue a pregnancy.
Read
our letter opposing HB 85 >>
HB
222 “Unborn Child Pain Prevention Act,” sponsored
by Representative Paul Ray, requires that physicians give women
seeking abortions state-produced brochures containing the medically
questionable information that their fetuses feel pain. The bill
interferes with the doctor/patient relationship and runs contrary
to the practice of informed consent.
STATUS: On January 27, both HB 85 and HB 222 passed the House. HB
222 will be heard by the Senate Health and Human Services Committee
this Friday.
Unconstitutional
Statutes
Two proposed bills seek to remove unconstitutional statutes from
the books. First
Substitute SB 122 “Repeal of Libel Provisions,”
sponsored by Senator Scott McCoy, repeals Utah’s criminal
libel provisions, which were declared unconstitutional as a result
of the ACLU of Utah’s case Utah
v. Ian Michael Lake. SB
164 “Repeal of Ordination by Internet,” by Senator
Gene Davis, repeals the law that prohibits people who have received
their ordination through the Internet from conducting marriages
in Utah. That law has been declared unconstitutional by a Utah federal
district court.
STATUS: Last week, both SB 122 and SB 164 passed the Senate Judiciary,
Law Enforcement, and Criminal Justice Committee.
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The Constitution grants
the government its power and the Bill of Rights restricts that
power and guarantees individual rights and liberties.
The ACLU of Utah works to ensure that our government respects
these limits.
The Activist is the email newsletter of the ACLU of Utah Union,
355 North 300 West, Salt Lake City, UT 84103
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