The Utah Legislature will sue Attorney General Paul Van Dam over his opinion that a new no-contact spouse-abuse law is unconstitutional unless Van Dam agrees to seek a court ruling on the law.
The problem is with HB54, a law that says police officers in domestic violence cases will remove an abusive spouse or live-in companion - usually a man - from a home for at least 24 hours or until the offender can appear before a judge. In cases of a long, holiday weekend, the spouse could be ordered out of the home for up to 90 hours.Van Dam's opinion is that such an order by a police officer violates due process guarantees in the Constitution, which says no one shall be deprived of use of his property without a court hearing. Because of his opinion, the law is not being enforced.
In a meeting that brought harsh words for Van Dam's actions, legislative leaders Tuesday afternoon agreed they'd talk to the attorney general before bringing suit - asking him to seek a declaratory judgment in the courts on the law.
If he declines, they'll sue, asking the court for an order requiring Van Dam to instruct local law enforcement officials and county attorneys to enforce the law.
Van Dam is puzzled by the Legislature's concern. "All we did is issue a legal opinion, nothing more," said John Clark, counsel to the attorney general.
Clark said his office has no enforcement responsibility in relation to HB54 anyway, so it probably could not be ordered by a court to make sure that the law is enforced. "Unfortunately, (the legislative general counsel's office) has misapprehended our duties and the separation of powers to boot."
Van Dam has no objection to someone testing HB54 in court. But Clark said Van Dam would argue in court that the law is unconstitutional.
As it now stands, no law enforcement agency is enforcing the law, fearing lawsuits, so it cannot receive a constitutionality test.
Legislative General Counsel Gay Taylor said, "This is, in effect, a super-veto (by Van Dam). The attorney general says he believes some law is unconstitutional, local law enforcement agencies refuse to enforce the law, so what the Legislature has ordered through legislation is ignored."
Taylor's office worked closely with legislators in drafting the law and issued an opinion during the 1990 Legislature saying it was constitutional. Before Gov. Norm Bangerter signed the bill, Van Dam's office issued a short, informal letter saying the bill could have constitutional problems. But Van Dam, a Democrat, didn't recommend Bangerter veto it.
Later, Salt Lake County Attorney David Yocom, acting as chairman of the Statewide Association of Prosecutors, asked Van Dam for an official ruling - recommending to county law officers they not enforce the law until the opinion was issued.
On June 5, Van Dam issued an expanded opinion saying he thinks the law is unconstitutional. Immediately, law enforcement agencies along the Wasatch Front and their county attorneys said they wouldn't enforce the law, fearing lawsuits from angry husbands who would cite Van Dam's opinion in court.
Legislators' anger Tuesday didn't come along partisan lines. Senate Minority Leader Rex Black, D-Salt Lake, didn't even want to talk to Van Dam before suing him. "Let's at least ask him to seek a declaratory judgment," suggested House Speaker Nolan Karras, R-Roy.
Taylor agreed but added, "the attorney general is already on record that this law is unconstitutional; it will be difficult for that office to now do a complete legal reversal and argue the validity of this law (in a declaratory hearing)."
But the issue is much bigger than HB54. Because law enforcement agencies are refusing to enforce this law, theoretically Van Dam could issue more opinions warning that legislative actions may be "unconstitutional," thus in effect "using a super-veto over your actions," Taylor told legislators. The executive branch of government isn't supposed to pick and choose which laws it will enforce - the courts uphold or strike down laws.
"In a worst-case scenario, the executive branch could avoid enforcing any legislation simply by obtaining an attorney general's opinion that it was unconstitutional," said Taylor. And it could do that without the law being tested in the courts, as in the case of HB54.
Legislative leaders also voted to prepare legislation for the January 1991 session that will expand the powers of legislative general counsel to allow that office to seek a declaratory judgment on its own without a prosecutorial agency doing it on behalf of the Legislature.