The Legislature has asked the Utah Supreme Court to decide if police and prosecutors can ignore a domestic violence law it adopted earlier this year.
Wednesday afternoon, the Legislature's attorney filed a petition with the high court asking it to order the Davis County attorney and Davis County sheriff to enforce HB54 - the new, tough domestic violence law - or order county officials to seek a declaratory judgment in the courts.Either way, said Richard Strong, executive director of Legislative Research and General Counsel, "they'll have to fish or cut bait, they can't just ignore a law like they and others have been doing."
"Finally, we're going to do something," said Rep. Joanne Milner, D-Salt Lake, one of the co-sponsors of the domestic violence bills.
Attorney General Paul Van Dam isn't cited in the suit and isn't a party to it even though it was Van Dam's legal opinion on HB54 - an opinion that says the new law is probably unconstitutional - that started the uproar in the first place.
John Clark of the attorney general's office said Van Dam will intervene in the case "so the AG's views will be heard by the court."
HB54 allows a police officer to order a person accused of domestic violence, usually a husband or live-in boyfriend, out of a victim's house for a period of between 24 and 96 hours, until a judge can hear the case. The "no-contact" provision is aimed at keeping the man from beating up his wife a second or third time and is considered, by supporters, the cornerstone of a number of new domestic violence laws passed by the 1990 Legislature.
However, after the bill became law, Van Dam, in response to a request by the Statewide Association of Prosecutors, opined that the law is probably unconstitutional because it allows a man to be deprived of his property - his house - without due process, in this case a court order by a judge.
Salt Lake County Attorney David Yocom, head of the statewide association, then suggested the law not be enforced. And across the state, police officers decided not to enforce the "no-contact" provision.
Davis County Attorney Mel Wilson agreed with Yocom, instructing county law officers not to enforce it. Davis County officers did adopt a "pro-arrest" mode on domestic violence cases, however, a separate part of the domestic violence package that passed the Legislature.
A spokesman for Wilson said he'd have no comment until he had a chance to review the petition filed with the Supreme Court.
Nearly a dozen women have been killed this year in acts of domestic violence, making supporters of HB54 even angrier over its non-enforcement.
"We're not upset at Davis County officials," said Strong. "We're just out to settle the matter whether they or any public official can chose not to enforce a legal statute. Does the Legislature set legal policy in this state, or can any member of any executive branch of government decide which laws it will enforce and which it won't?"
The Legislature's argument hinges on Van Dam's opinion. Legislative leaders say it's not proper for the attorney general to opine a law unconstitutional, the result being a so-called "super veto" - the law not being enforced.
Van Dam counters that it is his job to give legal opinions, and that he never told anyone not to enforce the law. Strong and others are so concerned with the result of Van Dam's actions that the dispute may spill over into the Constitutional Revision Commission, which is studying the duties and obligations of the attorney general with an eye toward a constitutional amendment.
Clark said Van Dam wants to protect his role in giving advice to state officers. He also wants to find out "what is the effect of that advice. And that's never been decided in this state. We're not upset by this (lawsuit) at all. Paul feels the courts are the proper forum to finally decide this issue of constitutionality."