Utah Ethics Commission Initiative (2012)

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A Utah Ethics Commission Initiative did not make the 2012 ballot in Utah as an initiated state statute.[1] The initiative proposed establishing a five-member independent commission to investigate ethics complaints against lawmakers and recommendations to the state legislature. Additionally, the initiative proposed ending corporate contributions to legislative candidates and placing a $2,500 cap on individual donations and $5,000 cap on contributions from political action committees over a two-year period.[2] The proposal is sponsored by Utahns for Ethical Government.[3]

In an effort to qualify for the 2012 ballot, supporters reported that they collected more than 110,000 signatures. But despite filing the signatures, Lt. Gov. Greg Bell said they believed the petitions were invalid. Some of the signatures filed, he said, were believed to have been originally collected for the 2010 ballot and that deadline was missed. According to Bell, signatures collected for one election ballot may not be used for another.

Barring certain developments surrounding litigation, new laws or a proposed veto referendum, those signatures may be counted as valid, or could be rejected.[4][5]

Proponents initially attempted to qualify for the 2010 ballot but supporters failed to collect the minimum required signatures to place the initiative on the ballot.[6] According to the campaign officials, the group gathered about 77,000 signatures, less than the minimum 50,000 signatures required by the state. However, supporters announced that they will continue collecting signatures through August 2010 in hopes of placing the initiative on the 2012 ballot.[7] The ballot initiative was originally filed on August 12, 2009.

Text of measure

The following was the submitted ballot measure details:[8]

Fiscal impact

According to the Governor's Office of Planning and Budget the fiscal impact of the proposed Utah Ethics Commission was estimated at $536,000 in total fiscal expenses from the general fund. Additionally, $36,000 for the production and dissemination of voter information related to the staffing of the proposed commission.[9]

Background

Initiative vs. Amendment

A different yet somewhat similar proposition known as the Utah Independent Ethics Commission Amendment (2010), a legislatively-referred constitutional amendment, were both proposed in 2010. However, not all legislators that support one of the proposed ethics commission measures supports the other. House Speaker David Clark, for example, does not support the initiated state statute but was a sponsor for the legislatively-referred constitutional amendment.[10]

With the filing of two similar measures - one an initiative and another a constitutional amendment - arguments about the best method for establishing an ethics advisory council rose greatly in 2010. House Speaker Clark argued that a constitutional amendment was the best way to go in order to "show how serious they are." However, Dixie Huefner of the Utahns for Ethical Government argues that a constitutional amendment is "unnecessary." Additionally, Huefner noted that any future initiatives may be blocked by the proposed amendment, if it is successful.

If both measures had made it to the 2010 ballot and had been approved by voters legal authorities said they believe the issue would have gone to court, according to reports. However, according to legal authorities constitutional amendments typically overrule statutes. "This is the first time I'm aware of in Utah history where you have a constitutional provision and a statute that both attempt to address the same thing. So the courts have been silent on how those would actually merge," said John Fellows, general counsel for the Legislature.[11]

Support

Utahns for Ethical Government (UEG) sponsored the initiative. According to the organization, contrary to arguments posed by opponents, the initiative "does not criminalize anything." The proposed ethics commission, said UEG, would have the ability to recommend disclipinary actions but could not convict individuals. "We're facing a lot of misperceptions that are coming basically from legislators," said initiative supporter Kim Burningham.[12] Other supporters include: AARP Utah, Heal Utah, League of Women Voters of Utah, Sierra Club of Utah and Utah Education Association.[13]

A full list of supporters, according to UEG, can be found here.

  • In response to opponents arguments that the initiative would cost taxpayers "tens of thousands of dollars" while lining the pockets of private attorneys. David Irvine, an attorney who helped draft the measure, called the argument a "fear tactic." Irvine argued that even if the measure required the use of in-house counsel, the taxpayers would still pay for the fees. The term "reasonable" is used to restrict outrageous fees and will be an amount that will be determined the court. "Somebody's got to pay that freight. We think it makes sense to insulate legislators from having to go back to lobbyists to cover their defense," said Irvine.[14]

Former Utah Congressman Chris Cannon announced in early August 2010 that he signed a petition in support of the proposed measure. Cannon served six terms for Utah in the U.S. House of Representatives from 1997-2009. "This will begin a process of transparent public debate which is the predicate for discouraging scoundrels from remaining in or seeking public office," he said.[15][16]

Donors

According to initiative supporter Kim Burningham as of October 2009 donations to Utahns for Ethical Government's Political Issues Committee total $10,000 - $15,000.[12] On April 1, 2010, 175 donors have participated in the initiative effort, according to reports. Campaign costs have totaled approximately $60,000.[17]

Opposition

  • Gov. Gary Herbert said that although he supported the concept of an ethics commission, he did not support the proposed ballot measure. The governor said that the proposed measure, if approved, could severely change the political landscape within the state. Specifically, the governor said he fears that the measure would fail a constitutional challenge and that the measure is over-reaching.[12]
  • On November 23, 2009 the state Republican Party announced their opposition to the initiative. Among the arguments against the initiative, the resolution stated,"among other things, the UEG initiative removes responsibility for ethics in government from the people and their elected representatives, and places it in the hands of an unelected, unaccountable commission."[18]
  • Initiative opponents argued that the measure would cost taxpayers "tens of thousands of dollars" and line the pockets of private attorneys. Opponents refer to a paragraph in the ballot measure language that requires that the target of an ethics probe chose private attorneys for their defense. The defense would be paid by the Office of Legislative Research and General Counsel regardless of acquittal or conviction. Todd Weiler, an attorney and former Utah Republican Party vice chairman, calls this stipulation a "huge red flag."[14]
  • The Sutherland Institute described the measure as "dangerous." In February 2010 the organization asked lawmakers to "streamline the name-removal process for folks who signed but changed their minds."[19]

Path to the ballot

2012 effort

In light of falling short of the 2010 signature requirement, supporters continued collecting signatures in an effort to qualify for the 2012 ballot. In order to qualify, signatures from 10 percent of the voters from the 2008 gubernatorial race in 26 of 29 Senate districts, about 95,000 names, were required. According to the Lieutenant Governor of Utah signatures could not be collected over two elections. Additionally, the submitted signatures must be verified by the county clerks by August 12, 2010.[20]

As of August 2, 2010, according to supporters, more than 10,000 electronic signatures were collected. State officials, however, reported the number was closer to 4,000. In total, supporters repored that they had collected more than 110,000 signatures.[21][20]

But despite filing the signatures, Lt. Gov. Greg Bell said they believed the petitions were invalid. Some of the signatures filed, he said, were believed to have been originally collected for the 2010 ballot and that deadline was missed. According to Bell, signatures collected for one election ballot may not be used for another.[21]

2010 effort

In order for the measure to be placed on the 2010 ballot supporters were required to submit a minimum of 95,000 signatures from 26 of the state's 29 Senate districts by April 2010. As of August 2009, supporters reported a total of 300 signatures including former governor Olene Walker.[22] On April 1 supporters said they estimated a total of 180,000 signatures.[17][23]

However, on April 15, the petition signature deadline, initiative supporters announced they collected about 77,000; falling short of the 95,000 minimum. Supporters said, although the initiative does not qualify for the 2010 ballot they plan to continue collecting signatures through August 2010 in hopes of placing the initiative on the 2012 ballot.[24] According to the Lieutenant Governor of Utah, the group gathered 73,244 signatures using pen and paper, falling short of the 94,552 requirement.[25][26]

Earlier reports said supporters had collected an additional 18,000 signatures via online petitions. The validity of e-signatures is currently being challenged in the Utah Supreme Court.[27]

Signature removal bill

Sen. Howard Stephenson's SB275 passed a Senate committee in February 2010, but required a two-thirds majority by the House and the Senate before being enacted. According to the filed legislation, signees would no longer to have to provide a notarized letter in order to remove their name. All that would be required is a letter with personal identification attached. If approved, the new legislation would apply to currently proposed 2010 ballot initiatives. "All I want is for people to have a fair chance to remove their names," said Stephenson. However, initiative supporters are calling the proposed legislation an effort to "[try] to take power away from the people."[28]

In Mid-March 2010, the measure was approved with a two-thirds majority and took effect as soon as it was signed by Gov. Gary Herbert.[29]

The Senate Bill 275 bill can be read here.

Supporters request veto

In early March 2010 initiative supporters requested Gov. Gary Herbert to veto SB275, a proposed signature-removal bill. The bill, argued supporters, would "undermine their petition drive." UEG treasurer Vik Arnold said in an email to the governor,"If the bill was NOT aimed squarely at the two citizens initiatives already under way, then why is it so important for the bill to have an expedited effective date?" According to Gov. Herbert's spokesperson Angie Welling the bill will not be expedited and the governor has not yet taken a position on the bill.[30][31]

Signed into law

Despite calls for a veto, on Saturday, March 27, 2010, Gov. Gary Herbert signed, what some call, a controversial signature removal bill into law. Removal of a signature can happen up to a month before petitions are due or become public. The new law applied immediately, despite just about two weeks left before the petition signature deadline for the 2010 ballot.[32][33]

Online signature solicitation

The Peoples Right LLC, a citizen group, announced in January 2010 that it was soliciting signatures for two Utah initiatives online - www.i-sign.us - including the Ethics Initiative and Restricting Measure.[34][35] According to Utah state law, electronic signatures are viewed as valid substitutes, however election code mandates that strict guidelines be followed for paper signature forms and does not address electronic signatures. Lt. Gov. Greg Bell has not yet made a decision and according to officials Bell is not expected to rule on the matter until after signatures are submitted for verification.[34]

On February 10, 2010 both the attorney general and lieutenant governor announced that electronic petition signatures are not valid. "My review and analysis of the statutory provisions indicates that the laws governing initiatives do not contemplate or allow for the use of electronic signatures," said Attorney General Mark Shurtleff in a five-page analysis of the proposed online process.[36][37][38]

Supreme Court hears case

The Utah Supreme Court heared arguments in a case regarding online signature solicitation on June 2, 2010. The case mainly revolves around Farley Anderson's - an independent gubernatorial candidate - petition signatures that were rejected by the Lieutenant Governor of Utah. However, the case also affects signatures submitted by proponents of the Utah Ethics Commission Initiative. According to UEG's attorney Alan Smith, he expects the group to file a friend of the court brief in the case. If the high court approves the validity of online signatures then the citizen initiative may qualify for the 2012 statewide ballot with the inclusion of the electronic signatures.[39][40][41][42]

In 2000 the Electronic Transaction Act was enacted by lawmakers to allow electronic signatures to be used in government services. However, the act does not identify if the same policy applies to candidate and initiative petitions.[43]

The American Civil Liberties Union announced in late May 2010 that it would be representing Anderson in the supreme court case. Attorney Brent Manning, who is arguing on behalf of the ACLU, said,"A signature is any mark that the signing party intends to be their signature." However, Lt. Gov. Greg Bell argues that Utah's petition process is solely paper-based. Assistant Attorney General Thom Roberts will argue for the state at the June 2nd hearing.[43][44][45][46]

In early June 2010 the Utah Supreme Court agreed to add initiative petitions to the case. Justices also agreed to allow Utahns for Ethical Government to file a "friend of the court" brief.[47]

High Court ruling

In a June 22, 2010 ruling the Utah Supreme Court unanimously concluded that electronic signatures are just as valid as handwritten signatures and must be accepted by state election officials.[48] However, initiatives were not explicitly discussed in the ruling.[49]

Of the court's decision, the lieutenant governor said, "This is a brave new world where no one has gone before." Lt. Gov. Greg Bell said on Tuesday that he never rejected the idea of e-signatures but instead that his interpretation of state law differed from the court's.[50]

Supporters of the proposed Ethics Commission Initiative also plan to submit e-signatures for the 2012 ballot, however, initiatives were not explicitly discussed in the high court ruling.[50] On June 23 Utahns for Ethical Government delivered a request to Lt. Gov. Greg Bell asking him to review his decision on electronic signatures for initiatives. If no response or reversal of decision isn't granted then the group said they plan to seek legal action.[51][52]

Initiative supporters file lawsuit

In light of the Supreme Court's June 2010 ruling in favor of e-signatures, initiative supporters announced on July 1, 2010 that they planned to file a lawsuit to force the state to count their electronic signatures. Specifically the June 2010 ruling only addressed candidate petitions and did not address initiative petitions. According to Lieutenant Governor Greg Bell the rules regarding the verification of initiative signatures remain to be drafted. Bell's chief of staff Paul Neuenschwander said, "We’re saying we’ll use statutory language to create a rule and if they can comply, fine. If they can’t, we’ll let the court decide if they’re going to roll over the law and change it." Initiative supporters have not said if they are filing with a district court of the state supreme court.[53][54]

On March 21, 2011, Utahns for Ethical Government filed a lawsuit against the state of Utah. The lawsuit aims to force the state to verify the signatures collected so the measure can be placed on the ballot. The lawsuit claims that the proposed measure is illegally being kept off of the ballot.[55]

The Lt. Governor’s office released a report the day the lawsuit was filed showing that the group filed signature in 26 of 29 districts; the requirement by state law. However, that is including electronic signatures, which the Lt. Governor does not recognize as legal, according to reports.[56]

On April 27, 2012, 3rd District Judge Todd Shaugnessy heard arguments from Utahns for Ethical Government lawyer Alan Smith and assistant Attorney General Thomas Roberts.

Roberts stated that the petition drive effort did not have enough signatures at the April 2010 deadline to qualify for the ballot. However, Smith claimed that the group should have been given a calendar year to obtain signatures. This would have put the deadline at August 2010. Also, the group stated that online signatures should count towards obtained signature totals.[57]

According to reports, Judge Shaugnessy must decide:

  • If August was in fact UEG's deadline, instead of April.
  • If the deadline was in August, whether or not to count the electronic signatures gathered.

Lt. Gov. Bell establish rule for e-signatures

See also: Electronic petition signature

On July 8, 2010, Lt. Gov. Greg Bell issued an interim rule on electronic signatures for initiatives and referendums. According to reports and state documents the new rule will allow the collection of electronic signatures while still maintaining the rules for accountability and integrity of the process. The interim rule will remain valid and in effect for 120 days. For the first 30 days the lieutenant governor's office will take public comments and later determine if a public hearing is necessary. Following that period, state officials will work with the Utah Legislature to establish a permanent rule in the state code.[58][59]

The language of the interim rule is available here.

Following the lieutenant governor's announcement of the new rule, skepticism increased among petition circulators and proponents of the proposed ethic initiative. According to the new rule, it requires that sponsors of statewide initiatives or referendums use an "electronic packet" created by the lieutenant governor's office and that a person electronically signing a petition shall do so in a petition circulator's presence. This, does not blatantly allow the use of electronic signatures and restricts them to publicly collecting signatures with computers. However, state officials argue that there are many electronic methods in which to comply with the new rule. For example, the program Skype could be used to make sure a circulator is present during signing. Supporters describe the new rule as "an unauthorized exercise of authority" by Bell.[60][61]

Signature privacy

See also: The signature privacy conundrum

Federal lawsuit

In April 2010,David Irvine and Alan Smith filed a federal lawsuit in Utah's U.S. District Court alleging that Utah's laws about making signatures available to the public are unconstitutional. Irvine and Smith, working on behalf of supporters of the Ethics Commission Initiative, asked a federal judge for a temporary restraining order to prevent the signatures from being disclosed to members of the public or, more to the point, opponents of the measure.[62][63]

The Irvine-Smith lawsuit mirrors a court case that will be heard by the U.S. Supreme Court in late April, Doe v. Reed, which is about signature privacy regarding the signatures filed to qualify Washington Referendum 71 (2009) for the ballot.

  • On April 15, 2010 Federal Judge Dale Kimball approved the restraining order and instructed the Lt. Governor and county clerks of the state not to release voter information. A hearing was set for April 28, 2010 to determine if release of the information violate Utahan's privacy. [64][65][66]
  • On April 28, 2010 U.S. District Judge Clark Waddoups ruled that the names will remain private until he can review the affidavits from petitioners who say they fear retaliation if their names are disclosed.[67]
  • On June 2, 2010 U.S. District Judge Clark Waddoups issued a preliminary injunction to keep the names private. According to Waddoups the injunction will remain until SCOTUS rules on Doe v. Reed in Washington. "The questions to be answered in John Doe #1 v. Reed bear upon and will very likely directly control the ruling to be issued in the present case," said Waddoups.[68]

See also

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References

  1. Deseret News,"Utahns for Ethical Government pushes for place on 2012 ballot," August 4, 2010
  2. Salt Lake Tribune,"Group launches ethics campaign," August 13, 2009
  3. The Salt Lake Tribune,"Lawmakers work to win ethics war," March 1, 2010
  4. Fox13Now,"UEG says it has met requirements for 2012 ballot," August 12, 2010
  5. Daily Herald,"Ethics initiative says it has collected enough signatures," August 13, 2010
  6. Associated Press,"Utah initiatives fail to make it onto ballot," June 1, 2010
  7. Associated Press,"Ethics measure backers to keep adding signatures," April 16, 2010
  8. Utah Elections,"Utah Ethics Commission Initiative - text," retrieved November 18, 2009
  9. Utah Office of Planning and Budget,"Fiscal Impact of Utah Ethics Commission," September 8, 2009
  10. Deseret News,"Utah Legislature: Major ethics reform bill passes House committee," February 1, 2010
  11. The Salt Lake Tribune,"Constitutional amendment clears committee," February 1, 2010
  12. 12.0 12.1 12.2 The Salt Lake Tribune,"Meeting with ethics reform backers doesn't sway governor," October 29, 2009
  13. Utahns for Ethical Government,"Supporters," retrieved March 4, 2010
  14. 14.0 14.1 The Salt Lake Tribune,"Who pays the costs of ethics complaints?," November 28, 2009
  15. Deseret News,"Ex-Congressman Chris Cannon backs ethics initiative," August 8, 2010
  16. KSL.com,"Former Rep. Chris Cannon joins push for ethics initiative," August 8, 2010
  17. 17.0 17.1 The Salt Lake Tribune,"Ethics petitioners pick up pace in final push," April 1, 2010
  18. Utah Republican Party,"State Central Committee Stands for Ethics in Government,Opposes Current Initiative," November 23, 2009
  19. The Salt Lake Tribune,"Ethics initiative battle heats up," February 7, 2010
  20. 20.0 20.1 The Salt Lake Tribune,"Utah ethics group is in its final push," August 2, 2010
  21. 21.0 21.1 The Salt Lake Tribune,"Group says ethics code will be on ballot," August 13, 2010
  22. KSL,"Initiative filed to create Utah ethics commission," August 12, 2009
  23. Standard.net,"Ethics initiative proponents optimistic petition will succeed," May 31, 2010
  24. Examiner,"Ethics initiative likely to miss ballot," April 17, 2010
  25. The Salt Lake Tribune,"Ethics initiative falls short by more than 20,000 signatures," June 1, 2010
  26. Desert News,"Utah ethics initiative is officially dead for 2010, but battle may go on," June 1, 2010
  27. Courthouse News Service,"Privacy of E-Signatures Still Uncertain," April 29, 2010
  28. Deseret News,"Utah Legislature: Bill makes removing names from citizen petitions easier," February 19, 2010
  29. The Salt Lake Tribune,"Foes cry foul on petition law fixes," March 18, 2010
  30. The Salt lake Tribune,"Initiative backers urge governor to use veto pen," March 4, 2010
  31. Davis County Clipper,"2010 Legislature," March 11, 2010
  32. Associated Press,"Utah Gov. Herbert signs signature removal bill," March 28, 2010
  33. Deseret News,"Utah Gov. Gary Herbert signs controversial signature-removal bill," March 29, 2010
  34. 34.0 34.1 Associated Press,"Utah group hoping for green light on new system that gathers initiative signatures online," January 19, 2010
  35. Associated Press,"Utah ethics groups collecting online signatures," February 8, 2010
  36. The Salt Lake Tribune,"Lieutenant governor rejects online petition signatures," February 10, 2010
  37. Deseret News,"Utah Legislature: Initiative backers to fight exclusion of electronic signatures," February 10, 2010
  38. Associated Press,"Utah high court considers online signatures case," June 6, 2010
  39. Deseret News,"Utah Supreme Court to hear fight over electronic signatures," May 24, 2010
  40. Davis County Clipper,"Ruling in ACLU case could aid UEG," May 27, 2010
  41. The Salt Lake Tribune,"Utah Supreme Court hears ballot access case," June 2, 2010
  42. Fox 13 News,"Utah Supreme Court examines issue of e-signatures on ballot initiatives," June 2, 2010
  43. 43.0 43.1 Salt Lake Tribune,"ACLU joins state ballot access case," May 25, 2010
  44. Salt Lake Tribune,"ACLU of Utah to argue for online signatures," May 24, 2010
  45. KCPW,"A.G. Says State Not Required to Accept E-Signatures," May 26, 2010
  46. JDSupra,"Farley Anderson, et al. v. Lt. Governor Greg Bell, et al. Notice of Appearance of Counsel," retrieved June 2, 2010
  47. The Salt Lake Tribune,"Court to include initiatives in review of e-signatures," June 4, 2010
  48. Associated Press,"Utah Supreme Court rules in favor of e-signatures," June 22, 2010
  49. KCPW,"No Decision Yet on E-Signatures for Ballot Initiatives," June 24, 2010
  50. 50.0 50.1 Deseret News,"Utah Supreme Court rules in favor of e-signatures," June 22, 2010
  51. The Salt Lake Tribune,"Ethics group seeks e-signature OK," June 24, 2010
  52. Standard-Examiner,"Group to revive online petition / Utahns for Ethical Government to seek signatures," June 22, 2010
  53. The Salt Lake Tribune,"Initiative backers will sue over online signatures," July 1, 2010
  54. Associated Press,"Initiative sponsors to sue over online signatures," July 1, 2010
  55. The Republic, "Utahns for Ethical Government file lawsuit against state over ethics initiative", March 21, 2011
  56. Examiner.com, "Utah Lt. Governor finally tabulates ethics petition signatures", March 24, 2011
  57. Salt Lake Tribune, "Utah judge weighs arguments on ethics initiative", April 27, 2012
  58. Deseret News,"Utah Lt. Gov. Greg Bell says e-signatures allowed for ballot initiatives and referendums," July 8, 2010
  59. KCSG News,"Interim Rule on Electronic Signatures Established," July 8, 2010
  60. Deseret News,"E-signature rule may face challenge," July 11, 2010
  61. Standard-Examiner,"Skepticism about rules for using online petitions for elections," July 10, 2010
  62. Salt Lake Tribune, "Suit demands secrecy for ethics petition signers", April 15, 2010
  63. Associated Press,"Lawyers argue over ethics initiative signatures," April 15, 2010
  64. Citizen Blog, "Court Victory for Utah Petition Proponents."April 16, 2010
  65. KSL,"Judge issues temporary restraining order; names on petition to remain private," April 15, 2010
  66. Davis County Clipper,"More surprises in the UEG initiative battle," April 22, 2010
  67. The Salt Lake Tribune,"Who signed Utah petition? That remains private -- for now," April 28, 2010
  68. The Salt Lake Tribune,"Judge rules petition signer names secret for now," June 2, 2010