Thoughts on SB100 and Amendment 3: Delayed Debate, Subordination, and Separation of Powers

UPDATE – February 10, 2014, 2:52 PM.  Daniel Burton of PubliusOnline confirmed with multiple sources at the legislature that it was not Gene Schaerr or the Attorney General’s office that instructed the legislature to put a moratorium on SB100.  This fits better with my impression of Reyes and Schaerr as smart guys and much more experience litigators than myself. 

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The talk of the capitol last week was the fate of SB100, Senator Urquhart’s statewide non-discrimination bill, which was tabled — ostensibly along with all other bills related to gay marriage, in favor or against — by the legislature, allegedly, according to the Salt Lake Tribune (see update above disputing that Reyes or Shaerr were involved) on the advice of Gene Schaerr, the principal attorney brought in the Attorney General’s office to argue and brief the Amendment 3 lawsuit before the Tenth Circuit Court of Appeals (and likely before the Supreme Court).

The rationale for tabling SB100 was that the legislature didn’t want to take any action that might be construed as showing animus toward gay and lesbians and might influence the Tenth Circuit’s (or Supreme Court’s) view of the motivations behind Amendment 3.  This is not unfamiliar litigation strategy.  When people are involved in a lawsuit, they often tread carefully and cautiously — sometimes overly so — acting as much with an eye toward the final outcome as to current business conditions.

But is it really a legitimate strategy for a legislature?  And is it really likely to have any positive effect?

Allow me to offer a few thoughts . . . .

(1) The strategy makes no sense because Amendment 3 was adopted by Utah’s people and, in any event, the 2014 legislature is not the same as the 2004 legislature.

To begin with, Amendment 3 is a constitutional amendment, which was referred to and ultimately adopted by the people of the State of Utah, not the Utah legislature.  What — if anything at all — can be intelligently said about the intentions of the people of Utah in adopting Amendment 3 in 2004 based on the actions of the legislature in debating a different bill in 2014?

Even if you could draw any meaningful conclusions (which, I submit, you cannot) any possible relevance is destroyed by the fact the Utah legislature that would be debating SB100 in 2014 bears little resemblance (at least in terms of the names of its membership) to the Utah legislature that existed when Amendment 3 was adopted ten years ago, in 2004.  I did a quick comparison and determined that only 6 senators (Bramble, Davis, Hillyard, Jenkins, Knudson, and Stepheson) remain from the 2004 Utah Senate, and only 11 representatives (Barrus, Christensen, Dee, Dunnigan, Hughes, Hutchings, Last, Lockhart, Moss, Noel, and Webb) remain from the 2004 Utah House of Representatives.  That’s a total overlap of 17 of 104, or 16.3% (note that my quick calculations do not take into account those that may have moved from the House to the Senate, or vice-versa, so the actual percentage may be slightly higher).

(2) The strategy makes no sense because the Tenth Circuit has to confine itself to the existing record in reviewing the challenge to Amendment 3.

The Tenth Circuit is an appellate court that reviews an existing decision.  It does not conduct its own trial or do its own fact-finding.  Its review is confined to the paper record that was developed before Judge Shelby at the trial level, and that is what the court’s decision will be based on.  When I was clerking at the appellate level, my judge gave us strict instructions that we were not to engage in any fact-finding — even such things as visiting websites that bore in the issues before the court or traveling to view the scene where events took place.  Although it was frustrating, we went strictly off of what was, and what was not, in the paper record that was transferred from the trial judge — even when we thought there was something missed below that would have helped us in making a decision.  The clerks on the Amendment 3 appeal will follow a similar practice.  Arguments made at the appellate level that were not raised and presented to the trial judge are almost always summarily disregarded, especially when they involve the attempted presentation of new facts.

(3) The strategy makes no sense because you can impute animus not only from the rejection of SB100, but the refusal to debate it.

There is only one way that debating SB100 could possibly demonstrate animus to gays and lesbians — and that is if SB100 was ultimately rejected (i.e., not passed) by the legislature.  Ergo, we can assume from the stated rationale that the legislature knows SB100 would go down to defeat if it were debated and simply wants to avoid whatever logical conclusions (psst, there aren’t any, see above) could be drawn from the rejection that would be adverse to the state’s position in the Amendment 3 case.

But you can’t avoid the implication of animus simply by saying we’re not going to talk about SB100.  Whatever animus toward gays and lesbians that would be shown by rejecting SB100 is also shown by refusing to debate SB100 in order to avoid rejecting SB100.  And if the state doesn’t think that federal appellate judges (and their clerks) are smart enough to discern this, they’ve severely underestimated the federal judiciary.

(4) Even if the strategy made sense, it’s a troubling subordination of the legislature’s policymaking role to litigation concerns and potentially an issue with separation of powers.

What you have with the current moratorium on debate over gay rights/marriage bills is the public body charged with doing the people’s business refusing to debate a bill because of the pendency of a lawsuit.  The State of Utah is currently involved in any number of lawsuits, many of which would have a connection to some bill being debated and discussed up at the legislature.  And yet debate and passage (or rejection) continue unabated, without regard to the existence of the litigation.

The legislature is tasked with making policy.  It should make or not make policy based on the merits of the policy involved.  If it thinks that a statewide nondiscrimination bill is a good idea, it should pass it.  If it thinks it’s a bad idea, it should reject it.  The people of the state of Utah deserve no less.  As I’ve described above, the “hide the ball” strategy is not going to work with the Tenth Circuit and it does no favors to legislators’ constituents, who deserve batter than poorly justified machinations — even if well-intentioned — that mask accountability and subordinate policy development to a judicial timetable.

Furthermore, to the extent (again, see update above disputing Reye’s or Schaerr were involved) the legislature is receiving direction on this from the Attorney General’s office (or its representatives), it’s a bit troubling to me.  The Attorney General’s office exists within the Executive Branch and is tasked with executing policy.  Granted, the lines between the two become somewhat fuzzy at the margins (and the fuzziness is not helped, frankly, by having an elected Attorney General), but actions like these serve only to further blur the lines between the branches rather than sharpen them.  Utahns should ask themselves:  Under what scenario is it a good idea for the Attorney General (or his representative) to come to the legislature and say, effectively, “Please shut down on this topic so that I can litigate this matter more comfortably.”

In short, I think the current Amendment 3 “hush-hush” strategy is ineffective and troubling.

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