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The following op-ed, written by our president Connor Boyack, was published this weekend in the Daily Herald.
Elder Lance B. Wickman, general counsel for the LDS Church, spoke last week to a crowd concerned about religious freedom. In his remarks, he outlined a strategy for winning the fight for religious freedom. While the goal is an important one that I and many Utahns share, I worry that the strategy is unlikely to succeed.
Before explaining why, consider an analogy. Imagine we’re in a war. Some people decide that we need to use soldiers to defend the munitions factory so that the enemy can’t destroy our ability to produce weapons. While a phalanx of guards protect this factory, the enemy destroys the barely-guarded mines from which the factory receives the raw materials necessary to create the weapons. Now all that’s left is a well-guarded shell of a building that isn’t worth much, since the materials are missing.
This is effectively the strategy that Elder Wickman advocated — a narrow focus on, and prioritization of, a “core” of religious freedoms. Outside of that inner circle reside freedoms that deserve less of our attention and effort if religious freedom is to be preserved, he claimed.
Last year, we released the Freest Cities report—a first-of-its-kind analysis of city laws and fees for the top 50 most populous cities throughout Utah. One of the metrics we analyzed was that of animal ownership, helping residents understand how many animals their cities legally allow them to have (and, by extension, what the city has prohibited).
In many cities, the law imposes an arbitrary limit of ownership. For example, assuming a standard starter home in a single family residential zone, Lehi residents can have two dogs, Logan lets you have four, whereas North Ogden only allows a single dog.
There is no data that supports these numerical restrictions. Three small dogs might make less noise than one large one, for example. The potential impact to neighbors is not mitigated properly by imposing a cap. And, of course, it turns peaceful residents into criminals when they, as prudent caretakers of animals, exceed the limit but create no negative burden on their neighbors.
Last November, along with the Utah Taxpayers Association, we sued the state seeking to overturn a clearly unconstitutional law requiring disclosure of information about our donors. Today, due to the great work of attorneys from the Center for Competitive Politics, who represented our organizations in this lawsuit, we are happy to announce a settlement—and a victory for free association in Utah.
House Bill 43, passed by the legislature in 2013, was sponsored in response to a political consultant’s illegal use of non-profit organizations to hide the identity of the source of his donors—from the payday lending industry—to fund a negative campaign against Representative Brad Daw, who had sought to regulate the industry’s practices. The bill passed the Senate 20-8 and passed the House 60-13.
The law compels private non-profit organizations—such as Libertas Institute—to publicly disclose the personal information of their donors when the organization spends $750 or more on political activity in a single year. This creates a substantial chilling effect, harming our potential to raise funds from people who may not wish to be publicly identified with their ideological and financial support, whether for family, business, religious, or personal reasons.
Salt Lake City, UT (July 13, 2016) — A lawsuit filed last November by the Utah Taxpayers Association and Libertas Institute, represented by attorneys from the Center for Competitive Politics, has now reached a mutually agreeable settlement.
The lawsuit alleged that House Bill 43, passed by the Utah Legislature in 2013, was unconstitutional under the First and Fourteenth Amendments to the U.S. Constitution by seeking to compel non-profit organizations, for whom political activity is not a primary purpose, to disclose detailed information about their private donors.
In the settlement, the defendants recognize and agree that the law is “unconstitutional” as applied to our organizations, since political advocacy is not our major purpose. The state also agrees that House Bill 43 will not be enforced against organizations such as ours who engage “in constitutionally protected political advocacy and political issues advocacy.”
“House Bill 43, while well meaning, was reactionary legislation that resulted in our organization being unable to engage in the public square on an important ballot proposition,” said Connor Boyack, president of Libertas Institute. “This chilling effect was palpable and threatened to undermine our ability to educate Utahns in the future. We are pleased with the outcome that not only protects the free association and speech of our organizations as plaintiffs, but organizations throughout Utah as well.”
The settlement makes clear the following:
- The state will not enforce HB43 against non-profit organizations who engage “in constitutionally protected political advocacy and political issues advocacy,” recognizing that doing so would be “unconstitutional unless those organizations are political action committees or political issues committees for which such advocacy is their major purpose.” In other words, 501(c)3 nonprofits that engage in political advocacy on a limited, infrequent basis (as in our case) are exempt from prosecution.
- Exempted organizations in Utah—not just our organizations as plaintiffs—will not be fined or criminally charged for failing to comply with the provisions of HB43.
- By the end of 2016, the state’s publications, websites, and other information about disclosure requirements will be changed to not indicate in any way that exempted organizations are required to disclose the information required by HB43.
- Past, current, or future violations of HB43 by our organizations will not be prosecuted.
- The consent decree (settlement) is an enforceable contract that can be used by us or another organization in the future as may be necessary, should the state violate its agreement not to enforce the law.
Given the state’s decision to no longer enforce key provisions of the law, we expect the Utah Legislature to amend the law in the 2017 General Session to align statute with the terms of today’s settlement.
The pursuit of justice is plagued with many problems—over-criminalization, perverse incentives, faulty forensics, and disproportionate penalties. Fortunately, police and prosecutors enjoy significant discretion throughout the process to weed out cases where justice would not be served.
Despite this discretion, agents of the government still prosecute many cases where the application of the law is clearly unjust and the alleged criminal should not be found guilty. Jurors, as the final step in the system of justice, have this same discretion—but are not told about it. People cannot exercise a power they do not know exists.
Jurors are unable to see that justice is done if they are not aware that they, like the police and prosecutors, can use discretion to determine whether a prosecution should be allowed to move forward. For that reason, jurors should be fully informed and their power of discretion preserved to ensure justice is served.
Utah has a controversial history with civil asset forfeiture—a tool allowing the government to confiscate property from people not charged with, let alone convicted of, a crime. Last Friday, the Commission on Criminal and Juvenile Justice (CCJJ) issued a first-of-its-kind report providing detailed information on how this power is being used in Utah.
The report is the result of Senate Bill 52 from the 2015 General Session. Libertas Institute proposed the reforms that led to this legislation—which passed unanimously—to help the public better understand in what cases property is being seized. Civil asset forfeiture is a highly controversial practice that has received significant nationwide attention.
Connor Boyack, president of Libertas Institute, issued the following statement in response to the publication of the report:
Crowd-sourcing and decentralization have innovated many industries, including transportation. Rather than relying on a government agency to furnish accurate and localized data about road conditions, drivers can now create and share the data on their own. This is the concept behind Waze, a popular mobile app used by many Utahns each day.
What these Utah drivers likely do not realize is that using Waze—though it can help improve public safety—is actually illegal.
Utah law prohibits “manually enter[ing] data into a handheld wireless communication device” while driving. This means that it is against the law to let fellow drivers know of a roadside hazard, freeway accident, police officer’s location, or other data, thus rendering the entire app legally unusable in Utah; if drivers cannot share information then there will be none for other drivers to passively view.
The passage of Senate Bill 253 in 2014 raised awareness of driving while using a mobile device. In a controversial vote, that bill criminalized additional uses of a phone while driving, such as dialing a phone number or accessing the internet. However, even before that bill state law said that Utahns could not, while driving, “manually enter data into a handheld wireless communication device.”
Of course, Waze can legally be used by a passenger in a car, though it is unlikely this accounts for most usage.
We objected to 2014’s change in the law and support loosening the legal standard such that mobile devices are treated like other distractions in a vehicle. It remains perfectly legal to manually manipulate radio controls, eat a meal, apply makeup, discipline a child, have a conversation, daydream, scratch a hard-to-reach itch, or perform any number of other actions that may lead to reckless driving and potentially an accident.
An even better example is Tesla, the popular auto maker who is legally prohibited from selling their cars directly to Utahns. These vehicles feature a touchscreen device mounted to the vehicle’s console, providing the driver with a wide range of features to customize and configure. It’s basically a large, mounted iPad. And yet because it is not “handheld” or “wireless” it falls outside the scope of Utah law and therefore remains legal to use.
But because it’s like a large iPad, its use is similar to that of a mobile device and offers a number of distractions like its smaller counterparts. Why is one okay, but the other is not?
Simply banning a specific type of activity does not address the underlying problem of distracted driving. If anything, it can exacerbate it; whereas drivers would sometimes use a device within their field of vision of the road in front of them, the criminalization led many of them to use the phone in their lap, out of a police officer’s sight, but creating a substantial risk by having to move their gaze away from the road ahead.
A better approach would be to increase the legal penalty for distracted driving when an accident is actually caused. If it can be proven that the driver was intentionally distracted—using a mobile device or not—then the penalty could be increased to create a deterrent effect. Drivers who safely use a mobile device (or listen to the radio or discipline a child, etc.) would face no legal penalty. (This includes the many lawmakers who themselves violate this same law.)
Waze offers real-time metrics on driving, making a safer and more efficient experience. The data is generated by drivers themselves, creating a community-centric system where drivers let those behind them know what to expect. This app, which is unfortunately illegal for single-passenger drivers to utilize, will remain popular in the months and years ahead, despite its legal prohibition. The Utah Legislature should therefore fix the law and let this innovative tool do its job to ensure public safety.
Update: A reader points out, correctly, that the law referenced above contains an exception to the law “when reporting a safety hazard.” As such, Waze is apparently only illegal to enter data pertaining to the location of law enforcement officers, unless one were to argue that an officer stopped at roadside is also a safety hazard (a plausible argument, to be sure).
Editor’s note: The following is a lightly edited interview with Kirsten Tynan, executive director of the Fully Informed Jury Association. The organization works to informed potential jurors about the nature and importance of juries, and the power jurors have to refuse to convict defendants of violating an unjust law.
Libertas Institute: Why are juries important?
Kirsten Tynan: In the legal system, there are many parties involved who have a vested interest in a certain outcome. Really, the only independent party in the courtroom is the jury—or, if you prefer, each individual juror. The judge obviously is paid by and works for the government; judges often come from the ranks of prosecutors. They have an interest in keeping business rolling by keeping the courtroom full. Prosecutors, of course, are often elected officials whose livelihood depends on getting prosecutions and whose continued employment often depends on appearing to be tough on crime.
Defense attorneys are also not always independent; although we may think of them as always on the side of the defendant, that’s not always true. A lot of public defenders, who incidentally are also paid by the government, have a cozy relationship with the other government employees in the courtroom and may not steer their client in a direction that is in their client’s best interest.
So really, the purpose of the jury is to be an independent body that stands between the defendant and a malicious prosecution, unjust law, or corrupt process. They are there to be a bulwark for liberty.
The following op-ed, co-authored by our policy analyst Josh Daniels, was published this week in the Deseret News.
The only things certain in life are death and taxes. Rarely, however, do you find a tax plan bad enough to guarantee them both. Such is the nature of the proposed scheme to double taxes on capital investment through the deceptive cry to close the so-called “carried interest loophole.” This proposal could kill growth on Utah’s “Silicon Slopes” — a growing nexus of tech ventures along the Wasatch Front.
Under current tax law, investment fund managers pay ordinary income taxes on management fees and capital gains taxes on carried interest — a type of gain on the value growth of the investment. Tax policies that treat investment gains differently than income are designed to incentivize savings and investment — critical factors in the equation for economic growth.
Lobbyists for this enormous tax hike call those who disagree “ideologues” and “zealots” with “dogmatic views” and insist that we need to double these taxes in the name of “equality” and “fairness” and to reduce the deficit. However, not only would this policy not make a significant dent in the deficit, it would reduce capital investment while causing pension funds, university investment funds and charitable funds to take a hit.
Editor’s note: The following is a lightly edited interview with Diane and her daughter Sarah who have been charged with contempt of court for disobeying a judge’s order to compel Sarah to attend a public school, when Diane has decided instead to homeschool her. The stress from this situation has led Sarah, a junior in high school, to attempt suicide more than once.
Due to the emotional stress of this ordeal along with pending litigation—which Libertas Institute has intervened to provide—and at the young woman’s request, we have changed both of their names to keep them anonymous for the time being.
Libertas Institute has reviewed the relevant laws, court documents, and audio recordings from each court appearance to substantiate the family’s claims. The views expressed below do not necessarily represent Libertas Institute.
Libertas Institute: Tell our readers how this experience began.
Diane: Sarah was charged with habitual truancy in November 2015 for missing “97 unexcused class periods” throughout the previous year. She had been struggling emotionally and dealing with bullying at school and had a hard time being on campus.
Sarah: We had to show up at the Fourth District Juvenile Court before Judge Suchada Bazzelle. When she asked me why I was missing school, I told her this:
I feel like going to school makes me want to… I’d rather commit suicide than walk in the halls of school. I’ve been treated really badly by other students and teachers. And I’ve never felt it was a safe place to be.
It was not an easy thing for me to even be able to go on the days that I did. I would feel that I was trapped and alone. I could not stand being there. I got counseling and I was on medication and nothing seemed to help. When I was at school, everything made it worse. I could not stand it.
LI: Did the judge show any compassion?
Diane: Not at all. She threw the book at us and didn’t believe Sarah because she couldn’t provide any evidence showing what was done to her. We tried doing the Home & Hospital program for her so there could be some flexibility, but a school boundary change put us in the middle of a game of hot potato, with neither school wanting anything to do with it.