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Coleman: Utah's oppressive subpoena law

Published July 13, 2013 1:01 am
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Contrary to how it's been reported or packaged, Utah's administrative subpoena law, on its face, gives prosecutors much broader discretion in seeking personal information without a warrant than just for the more narrow investigation of "crimes against children."

The Tribune's July 9 editorial, "Get a warrant: Utah subpoenas are not enough," makes clear that using the law for investigations of crimes against children makes it "no less flimsy constitutionally." But let's also recognize that the statute allows subpoenas for investigations into stalking, a broadly defined crime, which makes it even worse.

This is about more than a law that is potentially unconstitutional. It's about collusion between law enforcement and the Legislature, with an abuse of power we've all complacently allowed to happen.

In 2008, I came across HB493 (Stalking Amendments) after it had been overwhelmingly passed and signed into law without fanfare. I was appalled at the law's broad and vague definition of stalking. What had been a relatively reasonable stalking law had undergone an extreme makeover, dubbed as simply a cyber-stalking update, giving Utah one of the most liberal stalking laws in the nation.

So now, under one definition of stalking, for example, an administrative subpoena can issue if prosecutors are investigating whether a person has "knowingly communicated [two or more times] to or about a person directly, indirectly, or through any third party by any action, method, or device or means," if the actor "should know" it would cause a reasonable person "in the victim's circumstances" to suffer "other emotional distress." (Meaning emotional distress other than fear for their safety or the safety of a third person, without proof of medical or other professional treatment, or proof that emotional distress was in fact caused.)

It's not a defense that the actor wasn't given notice that the communication was unwanted, or didn't intend to cause fear or other emotional distress.

I wrote a detailed letter to legislators asking them to repeal HB493, which is also used for ex parte civil stalking injunctions, the violation of which is a crime per se. But without a well-funded lobbying effort, nobody lifted a finger to try and repeal the law, which had been requested by the Attorney General's Office and carried by Sen. Curt Bramble and Rep. Lorie Fowlke, a domestic relations attorney with clients seeking stalking injunctions.

HB493 was passed right after stalking charges had to be dropped in State v. Guyon, a case of unsolicited emails to and about the Attorney General's Office. The Utah Supreme Court had also just issued its opinion in the political stalking case of Towner v. Ridgway, wherein the court seemed dubious that Ridgway's political behavior in question constituted the crime of stalking.

But the court had to remand for findings of fact and conclusions of law, and the district court sat on the remand until the stalking injunction, which had been enforced to keep Ridgway away from Republican events, expired, and an appellate court declared the matter moot. (Towner publicly called HB 493 "the Michael Ridgway law" and gloated that he'd been involved behind the scenes.)

It doesn't take a rocket scientist to look at those cases and see that the new stalking law provides a slam dunk in favor of allowing those with power to win personal vendettas and suppress political critics. And now, with stalking as part of the administrative subpoena law, law enforcement can gather information concerning just about anyone without a warrant.

Tiani Coleman is a past chair of the Salt Lake County Republican Party. Now an unaffiliated voter, she lives in Lehi.






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