A bill that critics say could close the courthouse door when the public wants to challenge laws passed by lawmakers is moving through the Legislature.
The bill, SB203, sponsored by Pleasant Grove Republican Sen. Brady Brammer, would change the standards courts use to decide if associations have standing to bring lawsuits on behalf of their members.
The bill comes after groups like Planned Parenthood successfully petitioned the courts to block the Republican Legislature’s efforts to ban most abortions and the League of Women Voters and Mormon Women for Ethical Government (MWEG) stopped the Legislature’s attempts to empower themselves to repeal citizen-passed ballot initiatives.
Brammer said his concern is that associations have managed to use the vagueness of the current standards for standing to file lawsuits without having to show they are actually harmed.
“One of the concerns that we’ve had is in the jurisprudence around third party rights — it’s been fairly inconsistent,” Brammer told his colleagues Monday. “And then we’re also concerned with associational standing being used as part of … a level of lawfare that can be engaged in. And there’s some that’s okay, and some that’s not. And we want to make sure that it relates to actual injuries of Utahns.”
Brammer’s bill would set three criteria associations would have to meet to bring future lawsuits: The members of the association would have to meet the standards to be able to bring the lawsuit themselves; the association members would have to consent to the association bringing the lawsuit on their behalf; and the harm alleged in the lawsuit would have to be spread broadly enough that individual members would not have to agree to resolve the litigation.
If the association can’t meet all three standards, the lawsuit would be dismissed.
Melarie Wheat with MWEG said associations’ ability to challenge laws passed by the Legislature is an important check on legislative power.
“We are concerned that this bill would disrupt the balance of power between the people and the Legislature by making it harder for the people to use the court system to protect their rights,” she said. “SB 203 is also broad and vague, making it harder for organizations to bring action on behalf of their members. It creates an onerous requirement for any organization attempting to protect its members’ constitutional rights.”
Katie Wright, executive director of Better Boundaries, a group that worked to pass a 2018 anti-gerrymandering initiative that the Legislature largely gutted, said she believes limiting access to the courts may be unconstitutional.
“Secondly … I’m really concerned about the separation of powers,” she said. “Here we have an attempt to take power that sits with the courts and the judicial system and bring it into the Legislature, and also at the same time take power from people and organizations and associations and give it to the Legislature.”
An earlier version of the bill — that would have made it easier for the Legislature to bring a lawsuit while also making it harder for associations — didn’t make it out of committee last week. But Brammer reworked the bill and the six Republicans on the Senate Judiciary, Law Enforcement, and Criminal Justice Committee moved it to the full Senate for consideration with the two Democrats voting no.
