• A proposed amendment to the Utah Constitution would allow the Utah Senate and House of Representatives to exercise the responsibility given to them by the Utah Constitution to make laws.
• This amendment arises from a Utah Supreme Court decision that creates a new limitation on the legislative power when laws are made by voter initiative – a limitation not in the constitutional text.
• A fundamental issue raised by this proposal is whether the constitutional system of separation of powers can be fundamentally altered by giving courts a role in the legislative process.

​The Utah Legislature recently proposed an amendment to the Utah State Constitution that Utahns will vote on in the next general election. The debate over that amendment, while only beginning, is so far missing one of the most important constitutional principles at stake: the separation of powers.

The proposal would have two major effects. First, it would prohibit out-of-state influence on ballot initiatives – statutes proposed by signature-gathering and approved by voters – and allow the Legislature to enforce that prohibition. Second, it would make clear that the Legislature can exercise the legislative power granted to it by the state constitution to amend or repeal statutes, whether enacted by the normal legislative process or through an initiative.

The public discussion of this proposal has focused on two themes. Critics of the proposal argue that the amendment limits the power of voters to make laws that they cannot persuade their elected representatives to enact. Proponents have focused on the concern that without the amendment, interest groups from other states will essentially “buy” new laws in Utah by paying for signature-gathering efforts to propose voter initiatives and advertising to persuade voters to approve them.

These themes are important, but they don’t address what may be the most important effect of the amendment – protecting the constitutional principle of separation of powers.

Understanding this requires some background on this particular proposal.

The Utah Constitution establishes a system of specialized powers: the “executive power” of the governor, “who shall see that the laws are faithfully executed”; the “judicial powers” granted to the courts; and the “legislative power,” which is granted to the Utah House and Senate and to the people of the state. This latter provision is different from the U.S. Constitution’s approach, which does not provide for voter initiatives. Most states have some type of initiative process.

The specific constitutional language about the legislative power is important:

(1) The Legislative power of the State shall be vested in:

(a) a Senate and House of Representatives which shall be designated the Legislature of the State of Utah; and

(b) the people of the State of Utah as provided in Subsection (2).

Thus, elected representatives have legislative power. The people of the state do as well, but only as qualified by subsection 2, which sets out the procedure for ballot initiatives and referendums.

That is the backdrop for a recent lawsuit in the Utah Supreme Court that was the impetus for the current proposed amendment.

The case involved a 2018 ballot initiative about how legislative boundaries will be drawn. Subsequently, the Utah Legislature adopted a statute which changed the approach to redistricting in the ballot initiative. Amendments and repeals of prior legislation are not uncommon. The ability to amend or repeal laws is clearly a part of the legislative power, so this would not usually be controversial – particularly since in the constitutional process, voters still have the ability to retain the older approach by electing representatives who agree with that approach.

In this instance, however, the proponents of the measure brought a lawsuit asking the state courts to overturn the statute approved by the Legislature. In July of this year, the Utah Supreme Court agreed to do so. The court held that when an initiative statute is approved, the State Legislature loses the legislative power to amend or repeal that statute unless the amendment is consistent with the purpose of the initiative. How will the Legislature know that it is acting consistent with the initiative’s purpose? Of course, the courts will decide that.

It is important to recognize how significant a shift from the constitutional system of specialized powers this represents. Prior to the ruling, and consistent with the text of the constitution, the people of the state could impact the law by voting for representatives who had the power to make laws (the legislative power). They could also directly make laws by following the initiative process. The constitution did not set out (like California’s does) a separate tiered status for legislative or initiative statutes. The Utah Supreme Court read that into the constitution.

It did so, moreover, in a way that injected the courts into the legislative process, giving them a de facto veto on actions of the Legislature at odds with the purpose of an initiative. And that qualifier is important – how is the purpose to be determined? Surely, no one could really determine what every voter in the state had in mind when they voted on an initiative. So, in practice, it is a majority of judges in a particular case who will decide whether the legislative power can be exercised in a specific case. That supplements the judicial power (the duty to exercise independent judgment about the meaning of a legal text) with legislative functions (deciding what the voters want) assigned to the representative branches or to the people through a discrete process that did not require judicial intervention.

In practice, this means that if an initiative creates a law that turns out to be unworkable, unwise, or that conflicts with the current will of Utah voters, the Legislature is powerless to change that law without court approval, and that approval will not come unless the courts are satisfied that the change meets a poorly defined standard.

That is why the proposed constitutional amendment is so important. It could represent an opportunity to preserve the system of separation of powers created by the state constitution while still allowing voters to exercise their power through the specific processes set out in the text of the constitution – not only through proposing and approving initiatives, but by selecting their elected representatives to whom the constitution delegates power to make laws.

Another key constitutional protection of the will of the people is their right to “alter or reform their government.” This is possible through mechanisms set forth in the constitutional text. The proposed amendment provides that opportunity to the people of Utah.

In order for voters to make an informed decision regarding the amendment, they need an understanding of what is at stake with their vote. This means understanding the separation of powers and how the amendment and the judicial ruling to which it is responding will forward or weaken that essential constitutional principle.