Wednesday, March 14, 2007

Pro-Petition Response Part II: HB 174 Cannot Be Challenged by Referendum

First of all, I apologize for the formatting problems with the previous post. I hope that it is still readable.

My next response is to the idea that the petition referendum is wrong-headed because it did not challenge both HB 148 and HB 174. Surely the answer to this question is: if they could have, they would have, but legally they cannot.

There are many major legal provisions that proponents of this view are not aware of (most likely), are willfully ignorant about, or are intentionally deceitful (least likely).

The first is in the Utah Constitution, Article VI, Section 1, which states:

“(2) (a) (i) The legal voters of the State of Utah, in the numbers, under the conditions, in the manner, and within the time provided by statute, may:…

(B) require any law passed by the Legislature, except those laws passed by a two-thirds vote of the members elected to each house of the Legislature, to be submitted to the voters of the State, as provided by statute, before the law may take effect.”

The second is in Utah Code 20A-7-102:

“By following the procedures and requirements of this chapter, Utah voters may, subject to the restrictions of Article VI, Sec. 1, Utah Constitution and this chapter:…

“(2) require any law passed by the Legislature, except those laws passed by a two-thirds vote of the members elected to each house of the Legislature, to be referred to the voters for their approval or rejection before the law takes effect;…”

HB 174 was passed by votes of 54-11 in the House (72%) and 23-5-1 in the Senate (73%). That clearly makes it ineligible for referral to the voters.

Utahns for Public Schools has also claimed that they could not challenge HB 174 because it was not signed by the Governor until March 6, six calendar days after the session ended. Utah Code 20A-7-302 clearly states:

(1) Persons wishing to circulate a referendum petition shall file an application with the lieutenant governor within five calendar days after the end of the legislative session at which the law passed.

To understand the importance of this, let us see the definition of what a law is, according to Utah law. Article VII, Section 8 of the Utah Constitution declares the duties of the governor, detailing:

“(1) Each bill passed by the Legislature, before it becomes a law, shall be presented to the governor. If the bill is approved, the governor shall sign it, and thereupon it shall become a law.”

So therefore, HB 174 was not a law before Governor Huntsman signed it on March 6, and was not eligible for challenge on that basis either.

Does this mean HB 174 is bullet-proof? Absolutely not! Without the major provisions contained in HB 148, especially the religious neutrality provision, it is even more likely to be struck down by the courts if some state agency attempts to implement it.


The Senate Site said...

Good, thoughtful analysis, Didj. I'm going to double check on whether or not a referendum petition can be filed on a bill not yet signed by the governor. (In this case it's not super-relevant because HB174 passed by 2/3, but interesting nonetheless.)

Tom Grover said...

The referendum isn't about legal technicalities. Legislators who treat it as such will see such a paradigm backfire on them.

Utahns want a vote on vouchers. Some legislators want to make the referendum about mitigation monies in 148. Technically they are right, politically they are wrong.

It would be extremely poor judgment for the Legislature to institute vouchers based on 174 even if 148 is repealed. It would be an act of political defiance against the general public. It would also be a waste of tax dollars as two legal battles would ensue that would last years and take millions:

1. Whether the program itself is constitutional. And let's be honest- any program that would allow the FLDS in Hildale to use tax dollars to teach that blacks are an inferior race and that man never walked on the moon is doomed to be struck down.

2. The whole mess of 148 vs. 174.

Come on, legislators, and do us all a favor. Listen to the will of the people and save us some money by avoiding years of unnecessary litigation!