Tuesday, February 11, 2014 | No comments

Procedural vs. Substantive: Who’s in Charge?

By Connor Boyack

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Yesterday the House Judiciary Committee reviewed and discussed House Bill 70, a proposal we’ve been working on for months. Whereas law enforcement officers had been concerned about the bill, some ended up supporting the bill after further discussions and clarification in the bill’s text.

The real opposition came from the Statewide Association of Prosecutors and the Courts. The argument was this: Rule 40 of the Utah Rules of Criminal Procedure establishes how courts authorize search warrants, and the Utah Constitution gives the Supreme Court the authority to adopt rules of procedure and evidence. The same constitutional provision states that the legislature “may amend the Rules of Procedure and Evidence adopted by the Supreme Court upon a vote of two-thirds of all members of both houses of the Legislature.”

Thus, because our bill would require judges to make certain findings as a part of issuing a warrant for forcible entry, representatives of the prosecutors and courts argue that it must be done as a joint resolution passing by a 2/3 vote. What’s curious is that attorneys with the Office of Legislative Research and General Counsel were not aware of this requirement as our legislation was being drafted. Only after this pushback was it determined that the prosecutors and courts may be correct.

Or maybe not.

Kent Hart, executive director of the Utah Association of Criminal Defense Lawyers, contested the claim by the courts that the legislature should not codify law that might affect how judges act. In fact, Hart wrote a law review article over 20 years ago that deals with this very issue—a document he said in yesterday’s meeting has probably been read by more people in the last week than the last 20 years combined.

The summary of the article was, in Hart’s words, that “what is substance and what is procedural is probably in the eye of the beholder.” Where courts are concerned with “rules of procedure,” they may rightly express concern with the legislature dictating non-substantive procedural steps that judges must follow. However, on matters of substance—such as when forcible entry is authorized at all—it makes absolutely no sense for the people’s representatives to defer to the courts to decide such weighty matters.

And so most of the debate over our bill yesterday hinged on this “gray area” where courts may adopt rule, but the legislature may (and in our view should) enact public policy that clearly specifies what law enforcement officers are allowed to do. Substantive policy decisions should not be left to unelected government bodies, and despite some gray area and a potential “turf war,” it appears entirely plausible (or at least not out of the question) that the legislature can pass a law exactly as we’ve proposed (in collaboration, I should say, with the ACLU of Utah which has been wonderful to work with).

At one point, Representative Eric Hutchings charged the courts with effectively being asleep at the wheel for not addressing the issue themselves. “Has the judiciary been asleep?” he rhetorically asked. Home raids by police are “an important topic, it’s been everywhere. It’s all over the news. If you’re asking us [as legislators] to back off and let the judiciary do it, it’s a pretty hot topic for them to not have addressed it proactively.”

In his testimony Kent Hart also suggested that changing court rule is not as easy or expeditious as its representative in that meeting was suggesting. So in terms of speed, proactivity, and public policy, it seems (despite concerns) that the legislature can and should press forward with the change. And if the desire is to ensure that court rule matches state code, then we would be happy to initiate the process to request that change to court rule to make it consistent with the policy enacted by the legislature, should our proposal be supported by the legislature and signed by the Governor.

It is the legislature that should have final approval over how and when forcible entry is used in our communities—not the courts. While we recognize the purview of courts in establishing rules related to procedure, these matters of substance deserve open debate by legislators and the public at large.

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About the Author

Connor Boyack is president of Libertas Institute. He is the author of several books on politics and religion, including the Tuttle Twins series for children.


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