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House passes bill to give legislature optional notice and opportunity to be heard in declaratory‑judgment challenges
Summary
On Jan. 28 the House passed HB 101, which requires notice to legislative counsel (and judicial council, where applicable) when statutes or certain rules are challenged, prompting a contested debate about separation of powers and the attorney general’s responsibilities.
The Utah House voted Jan. 28 to pass House Bill 101, a measure that would require notice to the Legislature’s counsel when a declaratory‑judgment action challenges a statute and, in some cases, notice to a judicial council when judicial rules are challenged. Proponents said the change would give the legislative branch an optional opportunity to be heard when the attorney general declines to defend a statute.
Representative Byron O. Howard, the bill sponsor, said the measure addresses situations in which the attorney general determines a statute may be unconstitutional and therefore does not defend it in litigation; HB 101 would allow legislative counsel to appear if the legislature wants to present arguments on the statute’s intended meaning and constitutionality. Howard said the proposal was drafted to avoid supplanting the attorney general’s duties and simply to provide the legislature an avenue to be heard.
Opponents raised constitutional objections. Representative Jack Arrington and Representative Nelson argued the bill could upset the separation of powers by inviting the legislature’s legal staff into adversarial litigation and by “doubling up” the state’s defence against private litigants challenging statutes. Nelson read statutory duties for the attorney general (citing the attorney general’s responsibility to "prosecute or defend all causes to which the state...is a party", as stated in transcript) and warned that the legislature should be cautious about intruding on executive functions.
Representative Lewis and other supporters countered that the bill does not remove the attorney general’s responsibility to defend statutes; rather, it offers the legislature an optional voice and the ability to explain legislative intent when the attorney general declines to defend a statute. Proponents said the bill fills a gap experienced in a recent domestic‑violence matter where internal branch disagreement left the statute with no legislative advocate in court.
After a robust exchange and a successful motion to end debate, the House passed HB101 by a tally of 42 yeas to 30 nays. The bill will be forwarded to the Senate for further consideration.
