Wednesday, September 3, 2008

The Tribune's excellent editorial on Legislative Lawyer Legerdermain (Omnibus lawsuit)

This worries me. Did any of the legislature's lawyers voice concerns about the constitutionality of SB2 before it ran? Could they be called to testify under oath and reveal what discussions they had while drafting the bill? Not if they are safely under the shield as part of the defense's legal team.

The Tribune clearly and rationally explained various possible ramifications of a seemingly small decision about which lawyers can participate in the defense of the SB2 lawsuit. Amen, Trib editorial board...amen.

More machinations: Legislators should stay out of SB2 lawsuit
Tribune Editorial
Article Last Updated: 09/02/2008 08:55:59 AM MDT

A lawsuit challenging the constitutionality of an omnibus education bill passed by this year's Legislature has been delayed and muddied by a legislative committee, headed by Senate President John Valentine and House Speaker Greg Curtis, who want to get legislative attorneys involved.
It's a complicated legal maneuver, and we don't pretend to understand all its ramifications and the legal underpinnings. But two things are clear: A legislative committee cannot speak for the entire Legislature (some legislators are plaintiffs in the suit), and the state attorney general needs no help defending the case. Further, involving legislative attorneys in defending Senate Bill 2 could unfairly undermine the lawsuit.
For these reasons, we feel the attorney general's office, alone, should defend the case. After all, the attorney general is, according to the Utah Constitution, the lead defense attorney when a Utah law is challenged. Furthermore, Mark Shurtleff, in his capacity as attorney general, is named as a defendant.
Legislative attorneys work for the Legislature to craft legislation, and their testimony might be valuable to determine the history of SB2 as the lawsuit goes forward. If they are part of the defense team, they probably would be barred from testifying.
And we can believe that might be the motive behind the move by the legislative management committee, since the history of SB2 has been one of back-room political maneuvering from the beginning. Its sponsors have an interest in keeping that history from public view.
Congress has long used omnibus bills to hide undesirable initiatives among many others thrown together at the last minute. Utah legislators unwisely followed that model, introducing the huge education bill two days before the session ended.
Many of its 12 portions had already been debated and voted on as separate bills before SB2 lumped them together. There was no good reason to package them except as a way for the legislative leadership to get unpopular bills passed that otherwise would have been, or already had been, defeated.
Omnibus legislation is a devious way to govern, lumping bills together so they are not debated and voted upon on their own merits. The way this omnibus bill was passed is an underhanded way to make public policy, and so is the attempt to thwart the legal challenge against it.

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