Whooooshhhh!  Hey, that guy looks remarkably like my Representative up there!  I recognize the REP XX plates on his car.  What gives him the right to blow down the HOV lane by himself when I’m stuck here in stop-and-go-traffic during the I-15 morning commute?  

The answer is simple…either he’s got one of those fancy new “HOT” lane stickers ($50 a month—and a stint on the waiting list) OR he’s testing out the state constitutional provision that legislators are “immune” from “arrest” 15 days before, during, and on their way home from the General Session.  Now depending on who the “arresting” officer is, and I’ve heard it from a number of state legislators, “arrest” has been interpreted to include “cite” on a number of occasions.

Protected from “Arrest” by State Constitution and Legislative Rule

Embedded in the Utah State Constitution is a provision that creates “immunity” for 104 men and women in our state starting approximately January 1ish and ending 60 days later.  However, there are some “minor” exceptions.

Historically, this constitutional provision was created to keep lawmakers from being detained while in the process of their official duties.  You see, there are some people who  don’t like what lawmakers are doing on the Hill…and if certain executive “authority” is exercised—legally or illegally– to detain an elected official during the normal legislative session…well…then The People aren’t properly represented.

Those days are long gone, I’m sure.

The Utah State Constitution reads:

Article VI, Section 8.   [Legislator, privilege from arrest.]
 
Members of the Legislature, in all cases except treason, felony or breach of the peace, shall be privileged from arrest during each session of the Legislature, for fifteen days next preceding each session, and in returning therefrom; and for words used in any speech or debate in either house, they shall not be questioned in any other place.

The House and Senate Joint rule reflecting the language found in the constitution reiterates:

JR-13.05  Privilege from Arrest

Senators and Representatives may not be arrested during session, for 15 days before, or in returning from a session of the Legislature except for charges of treason, felony, or breach of the peace.  Senators and Representatives may not be questioned in any place other than legislative chambers for words used in any speech or debate in either house.  Utah Constitution Article VI, Section 8.

Now, the exceptions of Treason, Felony, or Breach of the Peace.  (This is one of those times I wish I would have gone to law school.)  I spent an inordinate amount of time trying to find reasonable statutory definitions explaining the “legislative” application of these terms, but have found none.  So here are my assumptive extrapolations:

TREASON

Article I, Section 19.  [Treason defined -- Proof.]

Treason against the State shall consist only in levying war against it, or in adhering to its enemies or in giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act.

Pretty self-explanatory.  Don’t begin or participate in a skirmish against the State OR…you MAY participant in treasonous activity IF there’s only one witness!  Also, don’t provide aid and comfort to an enemy of the State.

FELONY

Felony - A felony is a major crime for which the maximum imprisonment is more than one year in a state correctional institution. The court may also impose a fine. Felonies are classified into four categories: capital, 1st degree, 2nd degree, and 3rd degree. 

Felonies are outlined carefully and in rigorous detail in the Utah State Judicial Code.

BREACH OF THE PEACE

This one’s a little trickier.  Whereas the prior two offences where primarily based on objective criteria, the last component (Breach of the Peace) has an overwhelming propensity for authoritative and administrative subjectivity.  In other words, the Speaker of the House has the authority to determine to a large extent a “Breach of the Peace” and would enforce a penalty through the Sergeant-at-Arms (with the aide and assistance of the Utah Highway Patrol when present—those are the folks with the sidearms).

Utilizing a statutory standard and interpreting it on a legislative level might be the best way to understand a “Breach of the Peace.”
 
78-32-1.   Acts and omissions constituting contempt.
     The following acts or omissions in respect to a court or proceedings therein are contempts of the authority of the court:
     (1) Disorderly, contemptuous or insolent behavior toward the judge while holding the court, tending to interrupt the due course of a trial or other judicial proceeding.
     (2) Breach of the peace, boisterous conduct or violent disturbance, tending to interrupt the due course of a trial or other judicial proceeding…
 
Contempt for the normal orderly fashion of the Chambers and Committee rooms of the Capitol, or its temporary extension building quarters, would require the application of the Reasonable Man Standard to help the Speaker of the House or the President of the Senate determine if a legislator was “getting out of hand,” and within the Breach of Peace.    Applied to the legislative arena, Breach of the Peace would constitute conduct of an unusual or excessively boisterous nature or violence, interrupting the normal proceedings of the Legislature.
 
So, there you have it.  For 1/6 th of the year, your state legislator has “immunity.”   I don’t recall in recent state history if this constitutional provision has ever been exercised.  Things like this tend to hit the local media fairly quick.  I don’t personally know of anyone in my Capitol associations who would conscientiously go out of their way to break the law or be disruptive to legislative proceedings.  The HOV lane scenario was hypothetical…for the most part.

OK there might have been one story about a current Legislator…but you’ll have to ask him…

My good colleague from the House (and his friends), Rules Chairman, Rep. Steve Urquhart (R-St. George) has introduced a new on-line wiki forum for discussing “HOT” General Session Political topics.  POLITICOPIA.  A veritable smorgasbord of legislative debate and information all at your fingertips.  Brilliant…simply brilliant!  Link HERE.

Legislators have a limited amount of time to contact constituents during the General Session.  Because of limited staff (one intern shared by two legislators) and resources, legislators may find it difficult to make as many contacts as they would like as often as they’d like.  When a legislator does find time to read comments on issues important to his constituency, he wants to maximize that time by restricting reading and response time to “true” constituents—in contrast to individuals who claim to be “constituents” because they live somewhere in the state of Utah.  “True” constituents can increase the likelihood of responses to their e-mails from their representative during the General Session by following a few simple suggestions. 

DON’T “BLANKET” E-MAIL all legislators at the same time you’re sending your message to your representative.  Often e-mails are opened by legislators to see where the e-mail has originated.  And, when the “To:” line is filled with multiple e-mail addresses, this is an indication that you might not be an “actual” constituent.  If you want to get the attention of all the legislators in the state, save the “blanket” e-mail for another time.

THE “SUBJECT:” LINE holds the key to successful identification of your constituency.  By placing your Name and City in the “Subject:” line with a brief (seven words or less) explanation of the issue you are communicating, you are certainly guaranteed to be noticed over another e-mail with a generic heading.

MULTIPLE ISSUE E-MAILS ARE HARD TO ANSWER QUICKLY and almost always get placed on the bottom of the deck.  By limiting a single e-mail to one subject, a constituent will help keep the legislator focused on the issue at hand.  If you feel the need to communicate a number of separate issues to your legislator, break them up into multiple e-mailings.  Remember to keep your single issue e-mails to a total of 2 to 3 paragraphs.  This will greatly reduce reading time as well as help you make your thoughts concise and to the point.

DON’T INCLUDE ATTACHMENTS, pictures, fancy text, or other distractive content.  Capitol computer systems and filters often throw “unusual” e-mails out with the “trash” or mark them as “spam.”

REFRAIN FROM THREATENING SPEECH and impugning the character of your representative.  Remember the Golden Rule, do unto others as you would have them…Legislators have feelings, too!

DON’T EXPECT AN IMMEDIATE ANSWER.  Patience is a virtue.  Be aware that legislators are involved in committee meetings, floor debates, and meetings with other groups and constituents.  Each Representative represents a minimum of 30,000 people and each Senator has a minimum of 80,000 constituents.  You may not be the only one with a “pressing issue.”

DON’T EXPECT LENGTHY, DISSERTATIVE ANSWERS.   Sometimes the answer to your question may take nothing more than a couple of sentences.  Other times, depending on the single-question inquiry, answers may require more thought and text to adequately address the issue.  But, never expect a dissertation for an answer.  Remember, some politicians never learned how to type with any more than six fingers and a thumb.

TRY “SNAIL MAIL” FOR A CHANGE.  Writing a letter on an actual piece of paper and mailing it to the Capitol may solicit a quicker response.  Letters on real paper, some legislators say, show that the constituent has thoughtfully considered the issue and spent time to draft their concerns.  E-mails can be uncongenial at times and much too easy to fire a shot across the bough without sensible civility—I know because I may have sparked the fuse a couple of times myself.  A paper letter almost always requires a paper response in return.

Legislators want to hear what their constituents have to say—they really do!  By following the previously mentioned suggestions, a constituent has a better chance of getting their e-mail “voice” heard by their representative during the General Session. 

And, the voice of the people, considered by the people’s representatives, is what ensures a greater Representative Republic. 

Day # 6 and # 7 — Saturday and Sunday.  Constitutional provision requires the State Legislature to convene for 45 continuous days following its start on the Constitutionally mandated third Monday of January.  Traditionally legislators work normal weekdays (Monday through Friday) and spend Saturdays and Sundays during the session engaged in a number of different activities.

I just spoke with a legislator who was spending time with his family, another who was trying desperately to get caught up on normal occupational responsibilities.  I’ve been doing both.  Because we are a citizen legislature, and because the majority of lawmakers are employed in other vocations it becomes necessary, at times, to “check in” at the office.

The weekend is an essential time to get caught up on constituent services and touch base with those whom we represent back home.  Strategy meetings are not uncommon on the weekends.  And, association breakfast, lunches, and dinners.  And, most evenings are  double booked activities.  There may be occasionally, a need to travel some distance to attend these events.

So, although legislators get the weekends “off,” rarely does that mean we work any less than while we’re at the Capitol.

Rod Decker, Channel 2 News has packaged a piece on HB37 Cigarette and Tobacco Tax Amendments.  HB37 passed the House Floor on Friday and is headed for the Senate, where Senator Wayne Niederhauser, Chair of the Senate Revenue and Taxation Standing Committee has accepted the task to be that Floor Sponsor.

Link to Decker’s story HERE. 

HB82 Driving by Minors Amendments, met with severe resistence in the House Transportation Standing Comittee.  Sorry kids I did my best!

HB200 Standardizing Documents Filed With the County Recorder, passed out of Political Subdivisions Committee and is headed for the House Floor Calendar.

HB98 Sales and Use Tax Amendments will be heard in the House Revenue and Taxation Standing Committee on Monday morning. 

General Session 2007, Day 4.  Good night and good luck.

General Session Day 3.  Have you ever started the day with the intent of accomplishing a list of very important items…you just had to finish them by 5 pm?  Three items into the day…BAMMM!  6 pm.  See you tomorrow…

By statute (Section 76-8-109) and by Legislative Rule (JR-16.05), legislators must declare a “conflict of interest” when voting on any matter where the legislator believes that a conflict exists and what that conflict is.  In addition to the personal verbal declaration of a legislator regarding a potential conflict, an express declaration regarding the aforementioned potential conflict must be filed with the Chief Clerk (in the case of a Representative) and kept on hand for immediate review by the public.  These forms are available HERE for the House & HERE for the Senate.  The determination by a legislator as to what constitutes a valid “conflict” is a personal subjective determination at times.

If you don’t have anything to do some day, pick a few legislators names and look up their conflict forms…some are very detailed and others make very terse generalized categorical statements in their areas of “interest.”   Generally speaking, a legislator should list their employment (if they’re employed by someone else), or if they’re an officer or owner of a business that entity should be listed.  If a legislator owns $10,000 or more in the interest of a business or stocks within that business, that should be declared on the “conflict” form, also.

A legislator having a conflict (or potential conflict) as properly declared, IS NOT REQUIRED TO ABSTAIN FROM VOTING ON OR SPEAKING FOR OR AGAINST ANY ISSUE BEFORE A COMMITTEE OR LEGISLATIVE BODY.

For your further review, I have included the Rule from the Legislative Rules book:

JR-16.05  Declaring and Recording Conflict of Interest

(1)   Before any vote on legislation or any legislative matter in which a legislator reasonably believes he may have a conflict of interest, that legislator should orally declare to the committee or body before which the matter is pending that the legislator may have a conflict of interest and what that conflict is.  This declaration of conflict of interest shall be noted in the minutes of any committee meeting or in the Senate Journal or House Journal.

(2)   (a) A legislator shall file a Declaration of Conflict of Interest form with the Secretary of the Senate if the legislator is a Senator or with the Chief Clerk of the House of Representatives if the legislator is a Representative to satisfy that legislator’s disclosure of any conflicts of interest as required by Subsection (1) and Utah Code Annotated Section 76-8-109.

(b) This Declaration of Conflict of Interest form shall include the general legislative areas in which the legislator may have a conflict of interest.

(c) This Declaration of Conflict of Interest form is available to the public.

(3)   This requirement of disclosure of any conflict of interest does not prohibit a legislator from voting on any legislation or legislative matter.

(4)   As used in this section:

(a)“Business in which a legislator is associated” means any business in which a legislator is a director, officer, owner, member, partner, employee, or is a holder of stocks or bonds in the company that have a fair market value of $10,000 or more.

(b) “Conflict of interest” means legislation or action by a legislator that the legislator reasonably believes may cause direct financial benefit or detriment to him, a member of the legislator’s immediate household, or a business in which the legislator is associated, and that benefit or detriment is distinguishable from the effects of that action on the public or on the legislator’s profession, occupation, or association generally.

House Bill 37.  Your neighbor is on his front porch smokin’ a butt.  You’re enjoying a long drag on your 100.  You smile and wave.  He bought his pack at the local convenience store. You got yours on-line for cheap.  Fortunately, he paid full price (including tobacco and sales tax).  Unfortunately, you didn’t.  Fortunately, Utah has a sales and use tax law.  Unfortunately, because you bought your smokes over the internet without paying the 69.5 cents tobacco tax and 33 cents sales tax (per 20 stick pack–3.475 cents per stick) you’re liable for those nasty costs associated with smokin’ those cigs’ in Utah, anyway.  And the state wants their money.

HB37 (Rep Frank, R-PG) provides the mechanism for the Utah State Tax Commission to collect those cigarette taxes, penalties, and interest–et al.  According to Jim Olsen, a representative for the Utah Retailers Association, “HB37 levels the playing field for Utah cigarette retailers and distributors competing with internet distributors.”  Think you can beat the system, try again.  Smoke butts in Utah…pay the tax. 

This morning as I drove back to work, at the Capitol, I chose the route less travelled–Apricot Street.  You have to “overshoot” the Capitol to travel from I-15 to Apricot Street–one of the largest incline streets in Salt Lake City.  I had to put the car in first gear to achieve the summit.

But the effect, ah the effect (and the picture doesn’t do it justice) the Dome is huge!  What makes this especially grand is the fact that the newly renovated Capitol Dome is available for full view.  The scaffolding was dis-erected a couple of weeks ago.  Even if you hate politics you have to love The Dome–architecturally, I mean.

Well, BACK TO WORK…