Wilds amendment upheld

The 10th Circuit Court of Appeals has ruled a controversial 1998 constitutional amendment that requires a two-thirds majority vote to approve any wildlife-related ballot initiatives does not violate the First Amendment rights of animal rights and conservation groups.

In a 50-page decision released this week, the appellate court in Denver determined that the special requirement of having a two-thirds majority to pass ballot initiatives related to wildlife, is constitutional. Typically other initiatives only need a simple majority of Utah voters to pass.

"Although the First Amendment protects political speech incident to an initiative campaign, it does not protect the right to make law, by initiative or otherwise," wrote Circuit Judge Michael McConnell, a Utah resident who authored the majority opinion.

Utah voters passed the constitutional amendment in 1998. At the time, lawmakers who placed the amendment on the ballot and hunting rights groups were concerned over a nationwide movement by animal rights groups to push for state initiatives limiting wild game hunting.

A coalition of groups, including the Humane Society of the United States and Utah, the High Uintas Preservation Council and the Initiative Referendum Institute, sued after the amendment passed, saying the state could not discriminate against a ballot initiative based on the nature of its content.

In its decision the circuit determined that although wildlife initiatives were more difficult to pass, the new law did not limit in any way the ability of proponents to make their views known to the Utah public.

The decision was, however, split with Judge Carlos Lucero finding that the amendment was discriminatory based on content and had "the potential to chill political speech." Lucero said the state should not be allowed to "rig election laws by imposing a content-based two-thirds majority requirement."

The ruling also conflicts with a ruling on a similar case out of the 1st Circuit out of Boston, where that court ruled a similar law imposing a super majority requirement on certain initiatives did violate the First Amendment.

Attorney Lisa Watts Baskin, who represents the coalition of groups, said she was disappointed with the ruling but was buoyed by the agreement among most judges that her group did have legal standing to challenge the law.

"The Court held itself apart from the First Circuit in finding no free speech violation. That troubles me now and will continue to do so," Baskin said.

Baskin said her clients have yet to decide whether to appeal the case to the U.S. Supreme Court. Baskin said because there is a split in opinion between circuit courts, there is a good chance the case would be heard by the nation's highest court.

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