The Importance of Paying Attention

The following op-ed was published in the Deseret News.

“No man’s life, liberty, or property are safe while the legislature is in session.”

This well-known saying comes from Gideon J. Tucker, a lawyer and legislator who in 1866 presided as a judge over a lawsuit against a deceased man’s estate. The legal battle, said Tucker, ”arose from want of diligent watchfulness in respect to legislative changes.” In other words, somebody had violated the law because they didn’t realize that the law had recently changed.

Tucker’s point becomes especially emphatic when changes to the law are made quickly, with no public discussion or recognition that it’s even happening. If our liberty is jeopardized by transparent government activity, it’s far more threatened by subversive attempts to undermine our rights. This was the case in Utah just last year.

After a citizen initiative in 2000 to strengthen property rights by restricting civil asset forfeiture — the ability of police officers to seize property without charging its owner with a crime — forfeiture law remained unchanged (save for some hotly contested tweaks in 2004) until last year. Under John Swallow’s leadership, the Attorney General’s office pushed a bill in the 2013 general session that substantially amended forfeiture law and removed many of the property rights protections that had long been in place.

House Bill 384 was presented to lawmakers in the closing days of the legislative session when the frenetic pace decreases attention to detail. The bill was 51 pages long — and no legislator read it. Why? They had been told by the sponsor of the bill that it was only re-codifying (in other words, re-organizing) existing law. With their own bills to worry about, along with hundreds of others, why spend precious time slogging through dozens of pages of text that weren’t changing the law?

But the law was changing, and the Attorney General’s office knew it.

The bill passed through the legislature unanimously and was signed into law by the Governor. Few people had any idea these changes were made until last December, when our organization published a report detailing what had happened. As in Tucker’s case, Utah had just witnessed a “want of diligent watchfulness in respect to legislative changes.” Lawmakers were duped into gutting a citizen’s initiative.

After detailing the changes that had been made, our proposal was simple: reverse course in repudiation of what Swallow’s office had done. Whether you love or hate civil asset forfeiture, it’s a subject that deserves scrutiny from all interested parties in the open light of day.

Fortunately, the legislature agreed with our recommendation. In this year’s general session, Senate Bill 256 restored the property rights protections that were removed last year. In an odd twist of fate, both last year’s bill changing the law, and this year’s bill restoring it, passed the legislature unanimously.

This entire process speaks to the wisdom of Tucker’s words: because our fundamental liberties are potentially threatened by any change to the law, it’s imperative that we diligently watch the lawmakers as they review, debate, and vote upon these changes. Whether as part of an organization or on an individual basis, concerned citizens must pay attention.

We consider it a positive thing that Utah’s legislative session lasts for only 45 calendar days; minimizing the amount of time our freedom is jeopardized is important. The downside, however, is that hundreds of bills are rushed through the system without much review and public input. “Diligent watchfulness” is the goal, but it will only be accomplished with the involvement and attention of the public. Even in Utah, nobody’s life, liberty, or property are safe while the legislature is in session.