Like our nation’s constitution, the Utah Constitution creates a representative democracy with three branches of government—executive, legislative, and judicial. Although each branch has independent authority and separate responsibilities, they necessarily overlap, and a creative tension exists between and among them. Checks and balances are meant to prevent excessive power by any one branch. The challenge is for the branches of government to function efficiently and focus together on promoting the general welfare rather than on special interests with undue power and corrosive financial influence on public policy. The goal has been to achieve majority, democratic rule while maintaining sensitivity to minority rights in a pluralistic society.

Over the past few years, the Utah Citizens’ Counsel (UCC) has watched the Utah Legislature pass laws that we believe create an imbalance among the three branches. Similarly, the Legislature has been increasing its power by amending the Utah Constitution and eroding the constitutional right of citizens to legislate by initiative. Moreover, we have also seen state legislative encroachment on city and county responsibilities that are historically local.

The UCC is highlighting four areas of concern with examples of legislative actions that suggest an evolving pattern that warrants public attention. “Learn more” links to supporting material in each area of concern are provided. UCC hopes that government leaders, influencers, and interested citizens alike will examine this document and help disseminate it more broadly in hopes of ensuring that the Utah Legislature does not create further imbalances that weaken our democracy.

Changes to the Authority of Utah Cities and Towns

In state government, municipalities are the governmental units closest to the people and in a better position to determine many local needs and regulations. Local decisions should be subject to state control only when necessary to ensure statewide uniformity for the health, safety, and welfare of the public. Here are a few recent examples of state interference when conflicts arose between business interests and municipal regulations:

  1.  The Moab City Council has at least twice had to intensely negotiate to partially offset undesirable state changes to its ordinances: (1) one in 2023 that limited its ability to prevent developers from buying historically low-density affordable housing and replacing it with luxury townhomes, and (2) another in 2022 that limited its ability to lower the noise level of ATVs (all-terrain vehicles) on city streets. Strong lobbying by developers or other business advocates influenced the Legislature to restrict Moab’s authority.
  2. Summit County’s authority was overturned by a last-minute provision in a 2023 bill that permitted developers to build a housing project adjacent to a transit hub at Kimball Junction, despite the County’s ongoing negotiations with the developer for changes amidst concerns about traffic congestion, school crowding, etc. The developer successfully lobbied the Legislature to remove the County’s authority–without opportunity for public hearings, public input, or legislative debate. (The developer was eventually thwarted in court for a technical failure of its own making.)
  3. Two homes in Draper collapsed in spring 2023 because a developer built them on land prone to landslides. Draper officials said that the state Property Rights Ombudsman office had indicated that the city could either approve development projects or buy out the developer. “Buyer beware” is hardly a sufficient safeguard for the public.

What‘s next in 2024?  A failed 2023 bill is being narrowed and will emerge as a financial tool for developers to access tax-free capital markets to bond for money to build infrastructure for building lots that have been zoned and approved as subdivisions by municipalities. Developers in “Infrastructure Financing Districts” (IFDs) would require potential homeowners to pay up front for infrastructure (like roads and sewer). Developers argue that this tool would be cheaper and faster than public financing and allow more housing to be built to meet current demand. Concerns remain about legislation that converts a private corporation into a quasi-municipal entity with taxing and bonding authority. Learn more.

UCC Position: Question and scrutinize legislation that removes land-use and zoning authority from municipalities or creates an entity that transfers governmental authority to private developers.

Changes to the Executive Branch

The merit system (career service employment) in state agencies is under threat. In 2022, the Legislature passed a law allowing new state employees holding supervisory positions to be fired at will by their boss–with very limited protection from arbitrary action. Current supervisors were given a choice to convert to at-will status in return for a base-salary increase. Slightly more than 20 percent of them declined the raise in order to keep their career-service employment.

What’s next? Governor Cox’s budget recommendations issued December 5, 2023 include converting to at-will employment all vacant career service positions and all new positions after July 1, 2024. Current career-service employees would retain that status only if they do not move into other positions. Will Utah return to political favoritism in hiring, firing, and promotions rather than valuing professional skills and candid assessment of proposed policies? Learn more.

UCC Position: Oppose legislation changing career-service to at-will employment. 

Changes to the Judicial Branch

  1. A 2023 law undermined the judicial selection system. It eliminated the requirement that two of the seven commissioners on judicial nominating commissions be attorneys recommended by the Utah State Bar, the professional organization formerly responsible for providing the governor with qualified attorney candidates from which to choose. It also eliminated the requirement that no more than four be from the same political party. The Governor is now free to recommend for Utah Senate confirmation anyone he thinks could function in a nonpartisan manner, even though all could be from the same political party and without any input from the Utah State Bar.
  2. Another 2023 change narrowed the legal criteria for granting injunctions (which prevent a new law from taking effect while its legality is being challenged in court). A phrase stricken from the Utah law had allowed an injunction if the law raised “serious issues on the merits which should be subject to further litigation.” The change was in objection to a judicial injunction temporarily halting implementation of legislation restricting abortions after six weeks of pregnancy.

What’s next? UCC doesn’t know what is next but is watching. Learn more.

UCC Position: Support efforts to repeal or weaken these 2023 changes. Oppose reductions in the role of an independent judiciary to protect the public.

Changes to the Utah Constitution and to Citizens’ Constitutional Right to Initiate Legislation

Amendments to Utah’s Constitution should be quite rare but have been frequent in recent years, especially after the Legislature dissolved the respected Constitutional Revision Commission that advised the Legislature and evaluated proposed revisions.

  1. A 2020 constitutional amendment was approved by voters, allowing the Legislature–without the governor’s consent–to convene a special session to deal with a “fiscal crisis, war, national disaster, or other emergency.” The governor already had (and still has) this power, and it’s difficult to imagine that a governor would not call a special session to address these situations. The Legislature has used this new power several times without a fiscal crisis, war, or national disaster–only some issue that had not been resolved during a regular session which was considered deserving of quick action. Special sessions provide little notice, usually last 1-2 days, and lack opportunity for hearings or time for public input. What should constitute an “emergency”?

What’s next?  Other ballot language may emerge to amend the Utah Constitution that may sound harmless but does not reveal the consequences of a proposed amendment.

  1. Another change to the Utah Constitution will be on the 2024 general election ballot. It would remove the income-tax earmark for public and higher education. If approved, a companion statute would take effect to stabilize income based on student enrollment for five years, even if enrollment declines. Removal of the unpopular state (but not local) sales tax on food is also contingent on 2024 passage of this amendment. Both are examples of incentives to nudge/extort/coerce approval of problematic measures. The same tactic was used in changes to the merit system for state employees and for the 2023 increase in teacher salaries, which was contingent on acceptance of an $8,000 subsidy per student for parents who educate a child in private school or at home—significantly reducing funds available to support and improve public education.

What’s at stake? Education has been underfunded for several decades. Teacher salaries are still not competitive with other professions; staffing of auxiliary personnel (counselors, psychologists, nurses, social workers) is insufficient; at-risk students are underserved; and Utah remains at or next to the bottom of the 50 states in money spent per student.  The proffered specifics of income stabilization would be only in a statute, which can be changed in any later legislative session. Learn more.

UCC Position: Oppose this proposed 2024 constitutional amendment.

  1. In 2020, voters approved Proposition 4, a ballot initiative requiring nonpartisan redistricting by an Independent Redistricting Commission, using standards established in the initiative. The Utah Legislature effectively repealed the nonpartisan requirement, used its own lesser standards, and ignored the recommendations of the Independent Redistricting Commission. Boundaries for Congressional and state legislative districts were gerrymandered to increase the number of “safe districts” for members of the dominant party, creating single-party, veto-proof majorities in the state legislature. Litigation by citizens challenging the Legislature’s actions is ongoing, as of this writing.

Repeal of the key provisions of Proposition 4 was both preceded and followed by legislative enactments that make the success of any initiative virtually impossible. For instance, signers of initiative petitions are required to certify that they have read the entire initiative (typically, multiple pages of fine print legalese) prior to signing. This is a deliberate attempt to defeat any initiative from even getting on the ballot for public vote.

What’s next? The possible re-emergence of a proposed amendment to the Utah Constitution requiring any citizen initiative to pass by a 60% majority if it includes a tax increase or tax rate increase. This would make it tremendously difficult for such an initiative to succeed and would allow a 40.1% voter minority to squelch the desires of a majority. The Legislature imposes no such requirement on itself. Learn more.

UCC Position: Oppose any legislation requiring more than a majority vote on citizen initiatives. Support removal of existing language in the law requiring signers to read the entire initiative before signing an initiative petition. An executive summary would be sufficient. Support any legal rulings that better balance legislative and citizen constitutional powers to legislate.