DENVER — Does a 1998 Utah constitutional amendment requiring ballot initiatives dealing with wildlife to pass by at least a two-thirds majority vote violate the U.S. Constitution?
The answer by a federal appellate court could have nationwide implications.
An attorney representing a coalition of animal rights groups, including the Humane Society of the United States, the High Uintas Preservation Council and the Initiative and Referendum Institute, argued before the 10th Circuit Court of Appeals on Tuesday that the "super majority" requirement violated First Amendment free speech rights by stifling attempts to push initiatives limiting the hunting of wildlife in Utah.
However, an assistant Utah attorney general countered that the Utah Constitution still allows wildlife proponents to pursue a ballot initiative.
"The First Amendment does not protect success" in winning over Utah voters, he said.
In a rare move, the case was heard before an almost complete panel of all 12 circuit judges at their request. Typically appeals hearings are head by a panel of only three judges.
Attorney Lisa Watts Baskin said the significance of having an "en banc" hearing is that the outcome will carry heavy legal weight with not only other federal circuits, but also state courts across the United States. The only other appeal option will be to the U.S. Supreme Court.
In the hearing, Baskin said the 1998 amendment singled out a particular cause to prevent wildlife initiatives from passing in Utah. At the time, members of the Utah Legislature and hunting rights groups were concerned over a movement by animal rights groups to push for initiatives limiting wild game hunting in other states and were concerned such initiatives might spring up in Utah.
Proponents, who have admitted to pushing such initiatives in other states, now say they have decided not to invest money in initiatives in Utah due to the poor chances of winning a two-third majority.
"They are stopped dead in their tracks," Baskin said.
Some appellate judges pointed out that the amendment still does not prevent initiative proponents from debating and arguing their case with Utah residents.
One judge asked if Utah required all initiatives to pass with a two-third vote, would that be a problem. Baskin said no because the law would apply evenly to all types of initiatives.
Some judges took issue with the fact that none of Baskin's groups had tried to bring an initiative to Utah, nor have solid plans in the future.
However, other judges argued that U.S. Supreme Court rulings seem to indicate that just because initiative proponents can still talk about the issue is not a clear remedy to the fact that they are put at a disadvantage.
Assistant Utah attorney general Thom Roberts argued that the U.S. Constitution offers no clear right for citizens to take up initiatives, but that it is at the discretion of state legislatures.
One judge noted, however, that the U.S. Supreme Court had ruled that just because a right to initiative is not guaranteed in the U.S. Constitution and states reserve that right, states are not allowed to limit its use based on content.
Roberts said even though they won't have success, animal rights activists still have the right to talk about their issues. One judge asked if the Utah Constitution required a 99 percent vote, would the state still feel the same?
The outcome could have widespread implications regarding initiative laws across the United States, attorneys on both sides said.
In addition to Utah, several other states have two-thirds majority requirements on initiative subjects ranging from alcohol sales to road and school funding. No other states had moved to join the case, however.
Baskin said earlier this year, the 10th Circuit was set to rule on the case but chose to give the case a rare hearing at the request of its own judges. Most of the time, it is attorneys in the case who make such a request, Baskin said.