Some Qualities of Good Law

My last column discussed the principle that the law, as it is written, is binding on both the citizens and the government. I applied this principle to the city's Development Code -- the law that regulates land development in the city - and development applications that landowners have recently submitted to the city which comply with the existing law. The Development Code is perhaps the most important law the city has right now. The quality of the current Development Code is very poor in many ways. I suggested that several standards for development in the code could be improved in ways that would protect the interests of the city's existing residents and would give developers and landowners fair notice of what was expected.

I would like to suggest two additional ways in which the Eagle Mountain Development code could be improved: "clarity" and "Constitutionality." In my last column I invited readers on a hypothetical trip down a freeway, which resulted in a traffic ticket for obeying the law and driving the posted speed limit.

Lets go back for a moment to that imaginary freeway to illustrate another point: the importance of writing law with clarity. Think of the difficulties that would result if the speed limit on our freeway were posted, not as a concrete, quantifiable standard like "Speed Limit 55 mph," but rather "Speed Limit Appropriate," "Speed Limit Pleasing," or "Speed Limit Compatible." Such traffic laws and driving standards would be unfair both to drivers and to those enforcing the laws. "Appropriate," "Pleasing," and "Compatible" are subjective words. When lawmakers use such words to set standards in the law, they do a disservice to all involved. They create uncertainty. They invite inconsistent and unfair enforcement, which erodes respect for the law and breeds resentment of government. Our Development Code is replete with such terms and many have suffered because of it. We, as a city, can do better.

Now, the Constitution. All who hold office in Eagle Mountain bring their right arm to the square and take an oath to uphold the United States Constitution. My word, my honor, is precious to me. It means a great deal to me to swear such an oath. I was approached after a City Council meeting by a former Eagle Mountain City Councilman who berated me for advocating that the terms and principles of United States Constitution should be applied to the Development Code. He indignantly assured me that back when he sat on the council, Constitutionality did not factor into the decision making process. He angrily told me that it was wrong for me as a Councilman to concern myself with the Constitution and that it was only for the City Attorney to comment on such matters. In fact, he told me that he was so offended by my mention of the Constitution that he wanted to punch me in the face every time I brought it up.

I proceed undeterred. While I realize it is difficult to uphold and defend something one does not understand, I do not have the luxury of claiming ignorance. I have made it a point over the course of my life to know the United States Constitution. I am fortunate to have learned from some of the best on the subject. Over the years I understand that our City Attorney has advised the Eagle Mountain City Council repeatedly that certain provisions in the Development Code are unconstitutional. Based on my own study and analysis I reach the same conclusion: the Eagle Mountain Development Code contains unconstitutional provisions. This creates problems. Not only does it violate constitutional rights of individuals, and puts office holders who support such measures in the position of breaking their oaths of office; but it exposes the city to potential lawsuits which would be expensive to defend and which the city would most certainly loose. We, as a City, must do better.

For the benefit of all, let's improve the quality of our law. Where we can raise the standards let's do it, and lets do it with clear concise language. And where the Constitution constrains government's power let us not tread on sacred rights.