Listen To Your Attorney (Your Legislators Don't)

I have owned various pieces of real property at different times in my life. Calling land and the buildings attached to the land, "real property" is a lawyer thing. It isn’t that other property isn’t real, just that the law differentiates between types of property. It starts the first year of law school, when every fledgling lawyer has to take a “Real Property” class that teaches about old, largely unused terms like “fee simple,” “fee tail,” and “life estate.”

Somewhere in the hazy past, the terms got muddled and co-opted by the people who sell houses, quite possibly because “real estate” sounds better than “real property,” just like cozy cottage sounds better than tiny house. “Realtor” sounds more like a Marvel comic book character than “Broker.” To the house selling industry’s credit, they retained the apt term “broker” for the top Realtor in each office.

When we buy real property, we tend to think and feel more like monarchs adding to our kingdoms rather than farmers acquiring a job. The rush of acquiring property makes us forget that real property costs money -- lots of money with repairs, upkeep, broken sewer mains, property taxes, landscaping, and thirty other things you don’t even think about when you first buy the property. Real property is expensive. Even the Kings and Queens enslaved groundskeepers and taxed everyone to maintain their property. To date, I have had little success in taxing my thirteen year old.

Which brings us to the latest land dispute that was splashed all over the headlines recently: Ammon Bundy's siege of Oregon's Malheur National Bird Refuge. I hadn’t written about the standoff because from a legal perspective, it was and remains largely uninteresting. If you take firearms and take over a federal building, you are going to get charged with a crime. I read Thoreau and I’m all for civil disobedience, but Thoreau protested by volunteering for jail. Protest all you want, but leave the guns at home. Bongo drums at a protest rarely lead to someone getting shot, although you may have to man up and prepare to be pepper sprayed and beaten with a baton. Introducing firearms to a protest is a bad idea, and I only needed a paragraph to say that.

What brings me to address real property today is that the legislature is back in session. We have a group of legislators that are using Utah’s capitol (and capital) to perform their own version of the Oregon fiasco. They aren’t using guns, just our tax dollars to fund a futile standoff with the federal government.

Back in the day, Utah basically deeded a bunch of land to the United States in order to gain statehood. Think of it as owning a large chunk of land that you sell off, so you can afford to build yourself a house. After building your house, you get an attack of nostalgia for the sold land, especially because you don’t like how the new owner is treating it. You approach the person to whom you sold the land and say, “Hey, give me back my land.” They look at you like you’ve lost your mind because they’ve owned it now for over 100 years. You run to your lawyer and say, "I want to sue." You even say, "Look I can pay, Here is $1.7 million dollars." Now here is where it gets tricky for my profession. You know the case you are being offered is going to lose, so you do the classic lawyer speech, “Just so you understand, we are going to lose, but you are still going to need to pay my fee -- up front.” Most clients at this point don’t pay. I wish the same could be said for our elected officials.

This is pretty much where we stand as the State of Utah right now. In 2012, HB 148 was passed that was the Utah equivalent of saying to the federal government, “Hey, give me back my land I sold you 100 years ago.” I was reading through the bill and I discovered the “Constitutional Defense Counsel” which unfortunately shares the same acronym with the Center for Disease Control. I knew nothing about the CDC until this morning. The CDC has 11 members consisting of the governor, the majority and minority leaders in the two legislative houses, four county commissioners, and two at-large appointees from the governor. The CDC isn’t really tasked with defending the Constitution. More accurately, the CDC is charged with seeing what can be done to circumvent the Constitution, specifically the supremacy clause, by deciding “the advisability, feasibility, estimated cost, and likelihood of success of challenging” federal laws. For this purpose, taxpayers have donated a $1.7 million dollar attorney fee warchest.

At the www.publiclands.utah.gov website, you can read the 78 page report of the CDC that says the proposed land transfer is a bigger issue than we can fathom. Probably at the behest of the smaller county commissioners with lots of federal land, the first proposal in the CDC’s summary is that a fund be set up to reimburse more rural counties that will lose revenue with the transfer. Real property costs money to maintain, even if it is just sage brush. To make my point, a study was also funded by HB 142 on what would happen if the State actually bought all the federal land. Eighteen months and 784 pages later, the experts came back shrugging their shoulders, saying they have no idea what would happen. What they do know, however, is that the land management is so complex, the money will certainly be lost immediately after any possible transfer.

While I can find over 800 pages of documents about the proposed land transfer, there is one government document I still haven’t been able to find. (The day before the column was put in the newsaper I found it -- see the postscript.) When HB 148 was passed, the attorneys for the Utah Legislature authored “a detailed Legislative Review Note.” This fiscal review note on HB 148 said, “if the bill was challenged in court, there will be costs associated with defending those provisions.” For some reason, the note from the Legislature’s attorneys saying what a bad legal idea this all is can’t be found on the Utah Legislature website. It is always wise to seek legal advice before you buy any real property. It isn’t so wise to ignore it.

P.S. By the Legislative General Counsel:

The Transfer of Public Lands Act requires that the United States extinguish title to public lands and transfer title to those public lands to Utah by a date certain. Under the Gibson case, that requirement would interfere with Congress' power to dispose of public lands. Thus, that requirement, and any attempt by Utah in the future to enforce the requirement, have a high probability of being declared unconstitutional. (emphasis added.)

P.P.S. Translation of "high probablity of being declared unconstitutional" -- you are going to lose and lose badly if this goes to court.