August has been an eventful month.  Many of us enjoyed watching athletes with ties to Utah in the Paris Olympics, and I was thrilled to finally get the official announcement that Utah would host the games in 20234 (see more on Utah’s Olympic Venues below).  In addition to our normal August legislative interim meetings, which I report on below, legislative leaders called a Special Session with the goal of putting a constitutional amendment on the ballot, which would give voters the opportunity to clarify the balance of power between the Courts and the State Legislature when it comes to amending or modifying citizen initiatives.

I am grateful for the many individuals who reached out to me to share their concerns and opinions about this very important and complex issue.  I’ve provided a write up below on my thinking around this issue.  I expect and respect that many of you will disagree with my vote.   Even if you disagree with my conclusions, I hope this write up will influence you to agree that issues around modifying law created by initiatives are more complex and nuanced that the headlines that we read in the media.

I did not support calling an “emergency” special session.  I didn’t agree that this issue met the definition required to call ourselves into session.  I would have preferred more time and a slower approach, but I lost that argument.  I do, however support the policy that laws created by citizen initiatives should be subject to amendment like any other law on the books.

I want to be clear that I don’t support the Legislature removing the ability for citizen initiatives.  I think initiatives (putting a new law on the books) and referendums (removing a newly created law) are a very important check on the legislative branch and the Legislature should not be able to ignore them.  I also believe it should be a very high bar to get an initiative on the ballot (unlike California) and there should always be a way to adjust these laws for unforeseen problems.  For the past 100+ years, the Legislative branch had the authority and the responsibility to adjust initiatives as needed. This all changed with the recent unexpected ruling by the Utah Supreme Court, which some believe created a new category of “super laws” that can then only be amended by another initiative. This is very problematic.  (For those new to the issue, in the last newsletter I summarized the Utah Supreme Court held that the Legislature cannot amend, repeal, or replace a citizen initiative that reforms government, unless the change is technical, the change furthers or facilitates the government reform, or the Legislature can show that the change is narrowly tailored to advance a compelling government interest. The Court remanded the case back to the district court and chose not to address the issue of partisan gerrymandering, leaving that for possible future consideration, depending on what happens next in the district court. For now, the state’s Congressional map and S.B. 200 remain in effect).

Let me share a couple of examples that influenced my thinking on why it’s important that the Legislature and/or local governments be able to amend citizen initiatives as things change.   In 2018 there was a citizen initiative on Marijuana that passed.  I was not in the Legislature at the time.  The initiative questions that are on the ballot are usually short so they can be easily read, which means not everyone sees or understands the many pages of fine print details in the original initiative packet that become law if the ballot question passes. In the case of Medical Marijuana, my understanding is that the initiative (written primarily by the special interest group Libertas) included a provision that when law enforcement encountered an individual with cannabis, the law enforcement officer would be required to assume it was for medical use unless law enforcement could legally prove the individual was not using it for medical use.  Law enforcement came to the Legislature and said with that language there would be no way to prevent recreational marijuana use.  As a result, the Legislature amended the policy and legal language during the next session to clarify the rules around medical marijuana to prohibit recreational use, and still allow authorized use with a medical marijuana card approved by a medical professional and restrictions on how medical marijuana can be processed, distributed, sold etc. Without the ability to amend a current initiative, we could have had people selling and using marijuana for recreational use with few restrictions.

Another example is the Medicaid Expansion Initiative, which included language in the details that required automatic annual pay raises for all medical providers every single year going forward.  This made the program financially unsustainable in future years. My understanding is that the initiative language also inadvertently removed an existing Medicaid tax that hospitals pay that the sponsors and stakeholders asked legislative leaders to fix and put back in via amendment.

Here’s a couple of articles that I thought explained well why it’s important for a future legislative body to be able to amend and update laws without restrictions—regardless of how/when they were passed.

https://www.deseret.com/politics/2024/08/17/ballot-initiatives-constitutional-amendment/

https://www.deseret.com/opinion/2024/08/14/utah-supreme-court-better-boundaries-late-ballots/

Unlike all other laws, citizen initiatives don’t allow for deep vetting and compromise once ballot language is certified. I think that after the recent Utah Supreme Court decision — we need clarification on how and when a citizen initiative can be updated—which many believe requires a constitutional amendment.  Personally, I am in favor of a higher bar for modifying/updating a citizen initiative (like a 2/3 super majority + governor’s approval).  Unfortunately, I was unable to convince enough of my colleagues to agree.   

If the limitations on the Legislature to update a flawed initiative are very, very narrow (which many believe the Supreme Court’s decision suggested), then the courts become the default venue for fighting over the details of initiatives, and the fear is that Utah could become a little more like California or Oregon with a ballooning state budget as out of state money likely funds a number of good sounding, but financially unsustainable ballot initiatives.  If we become a state where many laws are made via the initiative process, Utah would almost certainly lose our reputation as the “best managed state” in the nation.

In the special session, I voted 'Yes' on the package of bills after an amendment was negotiated that made the language better than what was initially proposed. The amended language included a couple of key lines in my opinion that require that the Legislature “(i) shall give deference to the initiative by amending the law in a manner that… … leaves intact the general purpose of the initiative”;   The amendment also clarified that the if the initiative was projected to have a big impact on the state budget the Legislature “may amend the law in any manner determined necessary by the Legislature to mitigate an adverse fiscal impact of the initiative.”

I acknowledge that many smart and informed people can read the Utah Supreme Court’s decision and believe that even with the limitations of “narrowly tailored to advance a compelling government interest” the Legislature still has authority to make most necessary changes.  And they are wary of giving the Legislature complete ability to make changes or repeal because they believe the Legislature has used this in the past for political advantage.  In my opinion, I think the Legislature made smart amendments to the 2018 Medical Marijuana initiative and the Medicaid Expansion initiative that have saved the taxpayers $millions, as well as fixed clear technical and policy problems. However, I am not as comfortable with the legislative decisions on the Redistricting Initiative (easy for me to say since I was not in the Legislature at that time).  Redistricting is always a political activity subject to the bias of every decision maker . 

Hopefully we can agree that this is a complex issue and it needs a thoughtful, careful solution that balances the current will of the people to pass an initiative, and a mechanism for those initiatives to be adjusted and updated over time via the legislative process.  I’d love to hear any additional ideas you have on how to improve the process.

The easy justification for many is that this is just a “power grab” by an out of touch Legislature.  Personally, I don’t see this as a big power grab by the legislative branch (but I understand why some have that very perception). Elected officials have had the ability, and the duty, to responsibly amend/improve amendments for over 100 years before the Utah Supreme Court decision in July, so I see this more as an effort to restore the status quo. The timing was not ideal.  Our legislative leadership believed that the Legislature needed to take action last week in order to have any impact on the initiatives that are being considered for the 2026 election (changes are required in August to get something on the Nov 2024 ballot, which would then set the expectations for the 2026 election). 

While I voted yes to put this on the ballot, I don’t expect Amendment D to pass in November unless the Legislature and Amendment D advocates can do a better job explaining the issues in a simple way.  In my opinion if it fails on the ballot, it won’t be the end of the world, it may just be a bit harder to maintain conservative values and keep the budget balanced and Utah financially stable.

The primary reason that the Special Session was held on Aug 21^st was because the Legislature was already scheduled to meet for our August Interim meetings Aug 20-21.  During our Interim meetings, I joined officials and business owner from Centerville in testifying to the Medical Cannabis Working Group about challenges relating to odors from Cannabis production on the West side of Centerville.   

I serve on the Economic Development & Workforce Services Committee, which heard reports on legal refugees in Utah as well as an update from the Dept of Corrections on improved efforts to provide inmates with skills training and other services to assist with long-term rehabilitation so that after they are released from prison they are much less likely to go back to crime and re-offend.

In the Political Subdivisions Committee, we heard a report from the Commission on Housing Affordability and Attainability.  While a lot has been done in past years to improve affordability – Utah is still short over 35,000 units per year – with the biggest challenge being single family starter homes. For all the details and links to bills and presentations, you can check out the August Interim Highlights.  Prior editions of Interim Highlights may be found at https://le.utah.gov/lrgc/interimHighlights.jsp.

The Infrastructure & General Government Appropriations Committee, where I serve as Vice-Chair, has responsibility for overseeing buildings, roads, and other infrastructure.  Given the recent official announcement that Utah would be awarded the 2034 Winter Olympics, on Aug 19^th the committee was invited to tour four of the key venues that will be used again in the 2034 games - the Speed Skating Oval in Kearns, Maverik Center in West Valley, Olympic Winter Park (ski jumping) near Kimball Junction, and Soldier Hollow (x-county skiing and biathlon). While some of the venues are definitely showing their age, I was pleased to learn how well utilized they are. I learned that Utah is unique among Olympic sites. Many sites limit the use of their venues to their Olympic teams or to high performance groups trying to make it to the Olympics. Utah has taken a different approach, trying to utilize venues as much as possibly, including encouraging community recreational use of facilities. Facility Managers explained to us that if needed, Utah has the capability to host Olympic events with only a month or two of preparation. Of course, those facility managers also made sure we knew they had ideas and financial requests on how to improve these venues to make them even better in the next 10 years for the 2034 games.

Last week, I participated in a panel discussing the intersection of Domestic Violence and Homelessness with providers in Northern Utah who are focused helping reduce family violence and protect the most vulnerable in our community. It’s sobering to hear the stories and situations reminding us there is much work to be done to help survivors and their families. In Davis County, our own Safe Harbor Crisis Center is doing amazing work to support and protect hundreds of our Davis County friends and neighbors at any one time.

Representative Paul Cutler

pcutler@le.utah.gov

801-390-3444

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