The Legislature’s Administrative Rules Review Committee (ARRC) met on Monday, September 20, 2010.  As part of the agenda, the ARRC followed-up on the use, in statute and rule, of the phrase “liberally construed”.

Three interim committees — Natural Resources, Agriculture, and Environment; Health and Human Services; and Workforce Services and Community and Economic Development — responded to the ARRC’s request that interim committees review statutes and rules under their preview that contain the phrase.  Both Natural Resources and Workforce Services reported back that the existing language that included the phrase should be left as is.  Health and Human Services reported back that one instance — in a rule under Title R392 — would be removed by the Department of Health.

Concluding the discussion, Sen. Gene Davis made a motion, roughly summarized, to have the committee look at any new rules that use the phrase “liberally construed” particularly focusing on the rules’ relationship with statute; have staff coordinate with the working group that has been created in the House of Representative that is currently examining the use of the phrase; and review existing occurrences of the phrase in rule on a case-by-case basis as the chairs determine appropriate.

At its November 24, 2009, meeting, the Administrative Rules Review Committee (ARRC) began looking at the phrase “liberally construed” as it is used in statute and rule.  Rep. Becky Lockhart raised this issue because she had noticed the phrase in a Parks and Recreation rule (Section R651-700-3) and wanted to know what it meant.  Legislative staff reported that the phrase appears 30 times in statute (excluding its use in interstate compacts), and 25 times in administrative rule.

Legislative staff told the committee that the Utah courts prefer to adhere to the plain language of a statute or rule, whether or not the Legislature or agency has directed that it be liberally construed.

The committee noticed that the phrase appeared in connection with two broad categories — enforcement and adjudication.  After much discussion, the committee seemed more comfortable with its use associated with adjudication because in those cases it was used to direct the agency to protect the public’s interest (ensure just, speedy, economic results/determination).

This issue was discussed again at the December 21, 2009, and the January 11, 2010, meetings.  At the January 11, 2010, meeting, the committee expressed renewed concern about those statutes that use the phrase in connection with enforcement.  A motion was made to refer these statutes to the appropriate interim committee for review.  The motion also included a request that the interim committees respond by the November interim.  Finally, the motion also provided that a letter will be sent to legislative management to inform them of the committee’s concern.

Staff to the Legislature’s Administrative Rules Review Committee distributed an e-mail on Friday, November 6, 2009 that contained the following:

In its November 24 meeting, the Legislature’s Administrative Rules Review Committee will discuss the use of “liberally construed” in both administrative rule and statute.

The discussion will focus on the purpose served by the phrase, under what circumstances it may be acceptable to continue using the phrase, and whether some or all uses of the phrase should continue or be repealed. If you have interest in this issue, you are invited to participate in the discussion.

Whether or not your agency’s rules or statutes use “liberally construed,” you are welcome to attend and participate.

With this e-mail, staff provided two documents that detail the use of the phrase “liberally construed” in statute and rule.  Staff provided the following clarification in the e-mail: “Please note that the uses of this phrase in interstate compacts are not included.  Uses of the phrase related to local governments, however, are included for purposes of this discussion.”

Questions may be directed to Mr. Art Hunsaker at 801-538-1032.