Panel OKs bill targeting litigants

Despite critics' concerns over what they say is its unconstitutional nature, a legislative committee on Monday unanimously endorsed a bill that would make litigants who want to sue the state post a bond plus pay damages should their legal case fail.

HB379, sponsored by Rep. Mike Noel, R-Kanab, applies specifically to state agencies that wind up on the other end of a lawsuit over environmental decisions.

Similar to HB100 that was vetoed by Gov. Jon Huntsman Jr. three years ago, the Environmental Litigation Bond would not apply to federal court actions, which is why Noel said Huntsman vetoed the previous measure.

Noel said his proposal is designed to curtail frivolous lawsuits and help agencies recoup costs when they are forced to defend permits that have been issued.

"There are no repercussions to people who would file endless litigation," he said, pointing out that other states have adopted similar legislation.

The bill does not set an amount for the bond that would have to be posted, but rather leaves that determination up to the court or agency to determine, saying the amount has to be "sufficient" to compensate each defendant for damages they may incur.

Critics such as the Southern Utah Wilderness Association say even a limited legal analysis of the bill shows that it violates several constitutional provisions, including the right to petition, free speech and the Equal Protection clause.

"(HB379) would unconstitutionally limit the rights of citizen organizations and businesses to challenge state agency decision making in the environmental and natural resources arena," said SUWA's attorney Stephen Bloch in a position paper. "Businesses, municipalities, unions, homeowners associations and others routinely challenge decisions by these state agencies to approve new permits when those decisions threaten their diverse interests. The requirement that these businesses and others file a cost-prohibitive surety bond is overly burdensome and uncalled for."

Salt Lake attorney Rachel Otto spoke against the bill, saying it has implications "that reach far beyond the entities it seems intended to squelch … This seems like nothing but retribution against people with whom the sponsor disagrees."

Other opponents say the bill interferes with the judicial process and the Legislature should trust judges to do their job and toss out frivolous lawsuits.

But committee members say far too often the courts grant a stay or temporary restraining order in cases that lack legal merit.

"I think its important that we hold people to a high standard when they want to do things that cost us money," said Rep. Kerry Gibson, R-Ogden.

The measure now goes to the House for consideration.

Contributing: Rebecca Palmer. E-MAIL: amyjoi@desnews.com