Out of Commission 

A high price to pay, says Constitutional Review Commission chair, Judge Jon Memmott, who points out that even though Dayton touts her legislation as cost-saving, legislative fiscal analysts have been unable to determine whether or not the bill will actually save taxpayers money.

Currently, the Tax Review Commission and the Constitutional Review Commission meet year-round and advise the Legislature and government agencies on tax and constitutional issues. While legislators serve on the commissions, they’re largely comprised of volunteer professionals—tax attorneys and accountants on the TRC, and lawyers, judges and legal experts on the CRC. These commissions study issues based on requests from legislators, local government, the governor and even the public. Under the proposed bill, they would only convene to study an issue at the Legislature’s request.

“This is not meant to severely limit or do away with the commissions, but only to allow the Legislature to set the time of convening them,” Dayton told the Government Operations and Political Subdivisions Committee. Before summarizing her proposal, Dayton thanked the commissions for their service in volunteering their professional tax and legal expertise to the state every year. Outside the committee room, however, Keith Prescott, chair of the TRC, and Memmott did not feel so welcome.

“Essentially, this is going to shut down these commissions,” Memmott says.

“This goes straight to the heart of separation of powers,” Prescott says. Memmott agrees, noting that it also deprives other agencies and parties of the ability to reach out to the commissions directly. It could even limit Democrats’ ability to seek guidance from the commissions, since SB44 would require resolutions passed by a simple majority in both houses to convene the commissions.

“It puts all the power in the controlling party,” Memmott says. In the case of the CRC, for example, existing statute says that party minority leaders in the House and Senate can ask the CRC to review a proposal for a constitutional amendment. If the bill passes, they would have to convince a majority of the House and Senate to vote on a review.

Dayton’s bill also would affect the CRC in that it would delay their involvement in thorny legal issues. Memmott cited the CRC’s recent success working with the state Attorney General’s Office on expediting death-row-inmate appeals as an example of a solution that would have been hamstrung had the CRC had to wait for the Legislature to put them on the issue. After studying the issue for more than two years, the CRC ended up crafting a compromise that required only slight statutory changes to result in a more streamlined appeals process—one that required no amendment to the state constitution and even gave the Legislature greater control over the process.

In the committee hearing, Dayton argued that the CRC had gained its year-round footing when it modernized the state Constitution in 1986. Now, in 2011, Dayton says, Utah is the only state to employ a permanent standing CRC.

Memmott, who has been with the CRC for eight years on top of being a district court judge for 18 years, says the bill would not cut costs. If anything, it would deprive the state of the commissioners’ expertise. He cites past commissioners on the CRC who ranged from attorney and former member of the first presidency of The Church of Jesus Christ of Latter-day Saints James Faust to current Utah Supreme Court Chief Justice Christine Durham, among many others.

“Some of these people have given hundreds of hours of service—totally free to the state of Utah,” Memmott argued to the committee.

“All the [commission] members may be giving freely of their time, but we still have legislative staff staffing them,” Dayton told the committee. According to legislative staffers, per diems are offered to commissioners, though most do not use them. There are currently 10 staff members who help assist commissioners’ research and meetings. These staff are not dedicated solely to the TRC and CRC but also assist legislators in researching and drafting bill proposals.

Currently, issues the TRC and CRC examine originate from the Legislature already—but not all. The TRC keeps busy with ongoing studies into subjects like managing rainy-day funds, for example. It also consults often with the Utah State Tax Commission—the state agency that actually collects state tax revenue—on complicated issues such as administering tax delinquency penalties, as well as other individual, corporate and trust tax issues.

The TRC has also been statutorily required to lend its expert knowledge of taxes and tax law in briefing legislators on tax policy at the start of each session. They also work year round reviewing refundable and nonrefundable tax credits that statutorily have to be reviewed on different timetables. But under Dayton’s bill, the Legislature’s Taxation and Revenue Committee would be put in charge of approving or rejecting such tax credits.

By November 2011, for example, the TRC would be charged with reviewing whether or not tax credits should be afforded to tar sands, oil shale and other clean-coal technology. If Dayton’s bill passes, that responsibility would be given to the legislative tax committee. The legislative committee would also be charged with approving economic-development tax credits, refundable energy-tax credits, tax credits for in-state research and equipment and machinery for research. The legislative committee would also take on the TRC’s ongoing laundry list of having to review the efficacy of all the state’s sales and use taxes every 10 years. All of these functions, previously left to the tax attorneys and lawyers on the TRC, would be given to the legislative committee, which could ask for the TRC’s help—if it chose to.

“The bill made it easy for them [the commissions] to be called back to the session,” Dayton says in a recent interview. She notes that her bill also would allow the Legislative Management Committee to delegate these projects out to the commission, and that committee meets every month.

“I’ve heard people in the Senate say ‘why don’t we just dissolve them?’ ” Dayton says. “And I hope we don’t do that. My goal is that we keep them available, and organized as is, and utilize them when we can afford to—and want to.”