11-27-2012, 10:13 PM
The navigability suit is interesting. Presumably if the USAC prevails in that suit and doesn't in the other they will likely file navigability suits for all the rivers in Utah to allow the rivers to be accessed. Thanks for the link.
As far as a court giving "guidelines," Courts generally across the board refrain from legislating from the bench, so I would not expect specific guidelines on how to draft the law. In addition, what may pass muster for one judge may not for a different judge. That said, the court will likely give some factors to consider when determining whether a law is constitutional or not and will rule on the law based on those factors. These factors are usually found from older cases wherein appellate courts or supreme courts have ruled on similar issues. In this case, I would expect the court to cite to some very old cases that set forth what the public trust is and how it is to be protected and regulated. That may include legislative intent arguments, constitutional convention arguments, and other state and federal cases. The legislature should then have their counsel and staff draft the bills that are in compliance with what the court says the law is. Judge Pullan in this case has already ruled that the legislature did not do that. In all of this, there will be some gray area. The gray area is why I have a job.
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As far as a court giving "guidelines," Courts generally across the board refrain from legislating from the bench, so I would not expect specific guidelines on how to draft the law. In addition, what may pass muster for one judge may not for a different judge. That said, the court will likely give some factors to consider when determining whether a law is constitutional or not and will rule on the law based on those factors. These factors are usually found from older cases wherein appellate courts or supreme courts have ruled on similar issues. In this case, I would expect the court to cite to some very old cases that set forth what the public trust is and how it is to be protected and regulated. That may include legislative intent arguments, constitutional convention arguments, and other state and federal cases. The legislature should then have their counsel and staff draft the bills that are in compliance with what the court says the law is. Judge Pullan in this case has already ruled that the legislature did not do that. In all of this, there will be some gray area. The gray area is why I have a job.
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