HB414 – Has the Legislature Overcompensated on Subpoenas?

john-swallow-handAnd the John Swallow fallout continues.

We all (well, perhaps not all) sympathized with the legislature’s frustration over John Swallow’s and payday lenders’ refusal to comply with subpoenas issued by the House Special Investigative Committee.  The enforceability of the subpoenas was litigated repeatedly and unnecessarily, resulting in significant additional costs to the people of Utah in order to discover information that should have been quickly and completely disclosed.

In a legislative response to that frustration (wouldn’t be it be nice to legislatively respond to your personal frustrations?), Utah’s legislators enacted HB414, which creates a binding internal review process for legislative subpoenas that would not be reviewable in court.  While parties subpoenaed under the legislature’s authority would have the right to dispute a subpoena, the dispute could only be had before a bipartisan committee of legislators, whose determination on the objection would be finally binding and not subject to judicial review.  The legislative committee’s review would be ” in the manner, and in accordance with any rules” the committee deems appropriate.  The sole grounds for challenging a legislative subpoena would be (i) that it violates the US or Utah Constitutions, and (ii) that it would disclosure of information protected by a privilege recognized by Utah court rule.  The legislature would retain powers to “summarily dismiss” (read: dismiss without a hearing) any subpoena that is not timely filed and does not meet the “requirements” of HB414.

So that’s the bill.  Was the Governor right to veto it?  And should the legislature override the veto?

Yes, Governor Herbert was right to veto this bill.  No, the legislature shouldn’t override.

Let me tell you why.

HB414 is About Time and Cost

First, let’s be clear about what HB414 is not.  It is not a bill that is necessary to facilitate the disclosure of information.  To use the precipitating event as an example, Swallow and the payday lenders would have lost their battles before the courts to avoid compliance with legislative subpoenas.  They would have had to disclose the information sought (they may have even been sanctioned for frivolous objections and been required to pay attorneys’ fees).

This is a bill designed to save time and money by making it easier and cheaper for the legislature to enforce its subpoenas.  That’s it.

Saving money is important.  So is not wasting time and needlessly dragging out issues under investigation.  But there are some things that shouldn’t be done cheaply, even if the result is that people abuse the safeguards that are in place.

Executing people is one (the outrage over how expensive it is to engage in capital punishment has always mystified me).

Forcing disclosure of information without judicial recourse is another.

The Review Committee Has Essentially Unlimited Discretion and the Legislature is the Final Judge in its Own Case.

The committee created by HB414 to review objections to legislative subpoenas would be bipartisan, in order to avoid compliance being used as a political weapon.  That’s good (although politics is more than just inter party, it can also be inter branch).  But the committee would have essentially unfettered discretion and the legislature would still be what amounts to a judge in its own case.  The review committee has absolute discretion in the procedures it can adopt to review objections to legislative subpoenas subject only (so far as I can tell) to the following implied limitations: (i) the procedures must provide for notice and an opportunity to be heard; and (ii) the procedures must allow a person to object based on the federal and state constitutions and non waived privileged recognized by Utah court rules.

A couple of things to note.

The right to be heard would not necessarily include the right to call witnesses or present documentary evidence (although, to be fair, the legislature could provide for this in its procedures).  The grounds for objection include only privileges recognized by court rule, and not those that Utah courts have recognized at common law.  It also wouldn’t include privileges recognized by federal courts, whether codified in rule or adopted as federal procedural common law.  The legislative review committee could not recognize a new privilege, or extend an existing privilege, and, more importantly, a person before the review committee could not argue for such a recognition or extension, which is done in court on a regular basis given the facts of each particular case.  And, significantly, the committee has express authority to summarily dispose (i.e., reject without a hearing) am objection that does not meet the “requirements” of HB414.  There is troubling ambiguity in this provision.  It is one thing to summarily dismiss for failure to meet the deadline for objection.  It is another thing entirely to summarily dismiss for failure to meet ambiguous “requirements.”  This is especially troubling given the fact that the only express “requirements” I can find in HB414 — other than the deadline requirements — are the requirements that the subpoena must object on the ground of the Utah Constitution or privilege codified in Utah court rule.  In other words, it seems to me that the right of the legislature to summarily dismiss for failure to meet “requirements” really means the right to summarily dismiss on the substance of the objection.

Now — to be clear — that’s in serious tension with the requirement that a person be provided an opportunity to be heard, and any summary dismissal on the substance of an objection could likely be successfully challenged on the ground that it’s a denial of due process guaranteed by the statute (much less the Constitution).  But the statutory scheme gives the apparent right to the legislature, thereby putting a person seriously behind the eight ball in asserting his or her due process rights.

us-supreme-courtHB414 Would Not Allow Judicial Review.

None of the above issues with HB414 would be terribly concerning, and would even be understandable, but for the fact that HB414 specifically precludes judicial review of a legislative committee’s decision.  This is concerning.  The Governor contends this would violate the Open Court’s clause of the Utah Cosntitution.  I don’t know if that’s the case or not, but it certainly does remove what is otherwise a standard and longstanding judicial safeguard.  Ordinarily, when people are first required to assert their judicial rights before a nonjudicial (i.e., administrative) body, the decision of that body is subject to judicial review, even if the nonjudicial body’s decision is given significant deference.  The problem with HB414 is that it would give the legislative review committee absolute deference.  This isn’t strengthening the subpoena power against frivolous challenges, it’s immunizing the subpoena power from all challenge.

That goes father than is necessary.  Substantially the same purpose could have been accomplished (in my view, at least) with a legislative review committee, whose decision would have been subject to judicial review on a clearly erroneous (or other heightened) standard, with a provision that anyone who challenges the decision of the review committee and does not prevail will be required to pay the state’s attorneys’ fees incurred for compelling compliance and maybe subject to other discovery sanctions.

The desire to avoid another fiasco like that which occurred with John Swallow is understandable.  But it’s not justified, especially when it’s at the expensive of the right to judicial review of the legislative subpoena power.

The legislature overcorrected on HB414 (even if understandably), and good job to the Governor for calling them on it.

 

 

 

 

 

 

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