Update on the Salt Lake City Tesla store turmoil

[Rocky_H]

I had to go hunt for this a little bit. None of the articles about this would give a link to the court decision. (Nice job, press!)

https://www.utcourts.gov/opinions/supopin/Tesla v. State Tax Commn20170403.pdf

I just read it (19 pages). Tesla did bring up the constitutionality argument, and the court blew it off in a very non-serious flippant way, stating that it was too vague to use, which really pissed me off.

Quoted section here:

Not every provision of the constitution states an enforceable limitation on our government. Some provisions a
re non-justiciable: They are stated at so high a level of generality or aspiration that they require legislation to
establish a limitation enforceable in our courts.
See Bott v. DeLand, 922 P.2d 732, 737 (Utah 1996) (noting that ―constitutional provisions are not self-
executing if they merely indicate a general principle or line of policy without supplying the means for putting them into effect),
abrogated on other grounds by Spackman v. Bd. of Educ. of Box Elder Cty. Sch. Dist., 2000 UT 87, 16 P.3d 533.

¶53 The quoted language of the Free Market Clause is such a provision. This clause articulates only a ―policy. And it frames
the policy in terms that identify only a ―general principle‖ with no justiciable standard or ―means for putting [it] into effect.Id.
We know from the Free Market Clause that our charter for state government is in favor of a ―free market.‖ But we know little more
than that.

¶54 The general aspiration for a ―free market‖ is too vague a policy to sustain a justiciable constitutional standard. So without any
implementing legislation, we deem this provision non-justiciable. We reject this claim on that basis.

 

[Eclectic]

Well, there are two sides to this coin. It depends on what was being argued.

(1) Would Tesla new car sales violate the state law? Yes, absolutely. I've read the text of the statute, and it is iron clad with no wiggle room. Auto manufacturers are not allowed to sell direct. Period. So I would have hoped that they were not wasting their time trying to argue that.

(2) Is the law valid? No, definitely not. It clearly violates Article XII, Section 20 of the Utah state constitution. THAT is the part that I was hoping the case would be about. That is where I disagree with you. They are not just to interpret the law, as you said. They also need to evaluate whether laws passed by the legislature comply with the constitution. A state supreme court also has this duty. I thought Tesla was challenging the constitutionality of the law to get it stricken. I want to go find the transcript of the case to see if that was presented and argued.

Truly amazing that you would make such definitive statements about the law and what the court did without having actually read the opinion of the Supreme Court of Utah.

https://www.utcourts.gov/opinions/supopin/Tesla v. State Tax Commn20170403.pdf

They dealt with the constitutional issues.

Try again.

 

[Rocky_H]

Truly amazing that you would make such definitive statements about the law and what the court did without having actually read the opinion of the Supreme Court of Utah.

https://www.utcourts.gov/opinions/supopin/Tesla v. State Tax Commn20170403.pdf

They dealt with the constitutional issues.

Try again.

I did read it. It looked from their writing on it that they blew it off without actually dealing with it.

 

[ecarfan]

Bravo to the Utah Supreme Court. They did exactly what courts are supposed to do: interpret the law, not make the law. This was a very clear case of Tesla violating the law, a law that applies to all other auto manufacturers equally. The law in question prohibited manufacturers from owning new vehicle dealers. That law applies to Ford, GM, Toyota and every other manufacturer and if the court had ruled as Tesla wrongfully argued it should, it would have been nullifying an absolutely valid exercise of Utah's right to regulate an industry.

I am not an attorney, but I think this is correct.

Is the law valid? No, definitely not. It clearly violates Article XII, Section 20 of the Utah state constitution.

Apparently the Utah Supreme Court is not in agreement with your analysis.

Here is the section you refer to:

Article XII, Section 20. [Free market system as state policy -- Restraint of trade and monopolies prohibited.]
It is the policy of the state of Utah that a free market system shall govern trade and commerce in this state to promote the dispersion of economic and political power and the general welfare of all the people. Each contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce is prohibited. Except as otherwise provided by statute, it is also prohibited for any person to monopolize, attempt to monopolize, or combine or conspire with any other person or persons to monopolize any part of trade or commerce.
----------------------------------------------------------

So is the Utah state law barring vehicle manufacturers from selling direct to consumers in violation of that section. Again, I am not an attorney, but if the state law in question treats all manufacturers equally, how would it be in violation of Article XII, Section 20?

 

[Eclectic]

I had to go hunt for this a little bit. None of the articles about this would give a link to the court decision. (Nice job, press!)

https://www.utcourts.gov/opinions/supopin/Tesla v. State Tax Commn20170403.pdf

I just read it (19 pages). Tesla did bring up the constitutionality argument, and the court blew it off in a very non-serious flippant way, stating that it was too vague to use, which really pissed me off.

Quoted section here:

Not every provision of the constitution states an enforceable limitation on our government. Some provisions a
re non-justiciable: They are stated at so high a level of generality or aspiration that they require legislation to
establish a limitation enforceable in our courts.
See Bott v. DeLand, 922 P.2d 732, 737 (Utah 1996) (noting that ―constitutional provisions are not self-
executing if they merely indicate a general principle or line of policy without supplying the means for putting them into effect),
abrogated on other grounds by Spackman v. Bd. of Educ. of Box Elder Cty. Sch. Dist., 2000 UT 87, 16 P.3d 533.

¶53 The quoted language of the Free Market Clause is such a provision. This clause articulates only a ―policy. And it frames
the policy in terms that identify only a ―general principle‖ with no justiciable standard or ―means for putting [it] into effect.Id.
We know from the Free Market Clause that our charter for state government is in favor of a ―free market.‖ But we know little more
than that.

¶54 The general aspiration for a ―free market‖ is too vague a policy to sustain a justiciable constitutional standard. So without any
implementing legislation, we deem this provision non-justiciable. We reject this claim on that basis.

My legal practice doesn't involve the Constitution of Utah, but I am admitted to the Supreme Court of the United States and practice before that court on matters of the federal constitution. If you think that any court, including the highest court of a state, basing a decision on the view that something is vague is "non-serious" and "flippant", you have a very unique view of what courts do.

The Utah court did its job. You don't like the result and wanted the court to be activist and exceed its authority. They didn't. You're upset. Don't attack the court because it was principled enough to know its boundaries.

 

[Rocky_H]

My legal practice doesn't involve the Constitution of Utah, but I am admitted to the Supreme Court of the United States and practice before that court on matters of the federal constitution. If you think that any court, including the highest court of a state, basing a decision on the view that something is vague is "non-serious" and "flippant", you have a very unique view of what courts do.

The Utah court did its job. You don't like the result and wanted the court to be activist and exceed its authority. They didn't. You're upset. Don't attack the court because it was principled enough to know its boundaries.

OK, "non-serious" and "flippant" were bad attitude terms. Sorry for that frustration. This is why I also want to find the briefs from the parties and transcripts to see how this issue was presented. The court opinion only referenced the vague thesis statement at the beginning of Article XII, Section 20, and said that small quote was too vague and only articulated being in favor of a policy, and statements of general policies are not actionable. Where do they cover the rest of it? The second part of Article XII Section 20 gets more specific and spells out things that are "prohibited". That is more specific and possibly actionable, but the court never addressed that part of it in their opinion. Does it constitute "restraint of trade", which is prohibited? Does it constitute "monopoly", which is prohibited? They don't even discuss those things, which were what this line of argument was. So yes, I still think they did not fully deal with this part of the case, since they don't even mention the rest of that section of the constitutional article.

 

[Eclectic]

OK, "non-serious" and "flippant" were bad attitude terms. Sorry for that frustration. This is why I also want to find the briefs from the parties and transcripts to see how this issue was presented. The court opinion only referenced the vague thesis statement at the beginning of Article XII, Section 20, and said that small quote was too vague and only articulated being in favor of a policy, and statements of general policies are not actionable. Where do they cover the rest of it? The second part of Article XII Section 20 gets more specific and spells out things that are "prohibited". That is more specific and possibly actionable, but the court never addressed that part of it in their opinion. Does it constitute "restraint of trade", which is prohibited? Does it constitute "monopoly", which is prohibited? They don't even discuss those things, which were what this line of argument was. So yes, I still think they did not fully deal with this part of the case, since they don't even mention the rest of that section of the constitutional article.

Remember, the only question the court dealt with was the law that prohibited an entity owned by an auto manufacturer from being a dealer. There are a host of other questions out there regarding Tesla's sales model that the court explicitly said it wasn't ruling on (e.g., direct sales). It may well be that in a future case before the Utah Supreme Court dealing with direct sales, they will take up all of the issues that concern you. But on the narrow issue of the law that prohibits manufacturers from owning dealers, the court found that the constitutional provisions were too vague to be used to strike down the law.

Personally, I think that you'll see a very different result with the direct sales question, and Tesla should spend its resources challenging those types of restrictions.

 

[ccutrer]

Bravo to the Utah Supreme Court. They did exactly what courts are supposed to do: interpret the law, not make the law. This was a very clear case of Tesla violating the law, a law that applies to all other auto manufacturers equally. The law in question prohibited manufacturers from owning new vehicle dealers. That law applies to Ford, GM, Toyota and every other manufacturer and if the court had ruled as Tesla wrongfully argued it should, it would have been nullifying an absolutely valid exercise of Utah's right to regulate an industry.

Anyone who thinks that the court should have ruled in Tesla's favor because Tesla is a good company selling good products is asking for anarchy. If enough people from Utah really want Tesla selling cars in the state, they will lobby their legislators to enact a law that allows for that. But to nullify an absolutely enforceable and non-discriminatory law simply because violating that law was a convenient end around for Tesla would have been judicial usurpation of the legislative role.

I don't really disagree with you. What frustrates me is the intimation that Tesla should try again to get a license directly as Tesla, not Tesla UT. The whole reason Tesla UT was created in the first place was as a way to navigate the local laws. I'm not 100% sure where the idea came from, but I'm pretty sure it was the that state suggested it to them that if they didn't, there would be no way to get a sales license. Two years later, and they get told "sorry, you can't do it this way. Maybe start over and do it a different way!"

Oh, and as to the narrowness of the court's opinion - it reminds of a teacher I had in high school that demanded 100% correct course work. She would grade your work, and at the first error she would hand it back to you. You would correct it, and there would be a lot of back and forth. It would have been a lot less paperwork if she would just mark all the errors at once, so you could fix them all at once. (Note that I don't necessarily disagree with her strategy - I found myself doing the same thing when reviewing others' work in my own profession). Anyhow, it feels like the court is setting them up for "nope, not this way. but we have no suggestion on if other ways will or will not work", followed by a lot of work (and time!) for Tesla to try again another way. At which point it may go back to the courts, who may or may not (we don't know!) rule the same way. (Again, I don't fully disagree with this - we can't expect the court to spell out every way you might screw up. They don't have time for this.) It's just... frustrating. Local government is heavily influenced by large incumbent industries (one local politician has argued that global warming isn't a function of emissions, but simply energy usage at all. I.e. an air conditioner being powered 100% by solar panels would cause just as much warming as being powered by a coal power plant. Yeah... he got this impression from a coal company lobbyist). And these lobbyists are putting up new roadblocks and trying to change the rules in the opposite direction faster than Tesla can navigate the bureaucracy.

 

[Eclectic]

I don't really disagree with you. What frustrates me is the intimation that Tesla should try again to get a license directly as Tesla, not Tesla UT. The whole reason Tesla UT was created in the first place was as a way to navigate the local laws. I'm not 100% sure where the idea came from, but I'm pretty sure it was the that state suggested it to them that if they didn't, there would be no way to get a sales license. Two years later, and they get told "sorry, you can't do it this way. Maybe start over and do it a different way!"

Oh, and as to the narrowness of the court's opinion - it reminds of a teacher I had in high school that demanded 100% correct course work. She would grade your work, and at the first error she would hand it back to you. You would correct it, and there would be a lot of back and forth. It would have been a lot less paperwork if she would just mark all the errors at once, so you could fix them all at once. (Note that I don't necessarily disagree with her strategy - I found myself doing the same thing when reviewing others' work in my own profession). Anyhow, it feels like the court is setting them up for "nope, not this way. but we have no suggestion on if other ways will or will not work", followed by a lot of work (and time!) for Tesla to try again another way. At which point it may go back to the courts, who may or may not (we don't know!) rule the same way. (Again, I don't fully disagree with this - we can't expect the court to spell out every way you might screw up. They don't have time for this.) It's just... frustrating. Local government is heavily influenced by large incumbent industries (one local politician has argued that global warming isn't a function of emissions, but simply energy usage at all. I.e. an air conditioner being powered 100% by solar panels would cause just as much warming as being powered by a coal power plant. Yeah... he got this impression from a coal company lobbyist). And these lobbyists are putting up new roadblocks and trying to change the rules in the opposite direction faster than Tesla can navigate the bureaucracy.

There's a rather simple solution to the problem you identify: stop trying to get the courts to legislate. The Utah legislature is the one that should be revising the rules to allow Tesla to sell new cars in Utah, if that's what the people of Utah want. But to keep going to court to try to do an end-around what the legislature has done and should do is always a recipe for frustration, unintended consequences and bad outcomes. Plus, it simply is not what courts are supposed to do.

 

[ccutrer]

There's a rather simple solution to the problem you identify: stop trying to get the courts to legislate. The Utah legislature is the one that should be revising the rules to allow Tesla to sell new cars in Utah, if that's what the people of Utah want. But to keep going to court to try to do an end-around what the legislature has done and should do is always a recipe for frustration, unintended consequences and bad outcomes. Plus, it simply is not what courts are supposed to do.

Maybe I should clarify that I'm frustrated with all aspects of the local government, not specifically the courts. There have been bills for the past few years to change the law so that Tesla can directly become licensed. The first one was manipulated a little bit, and then killed. The second one became this grotesque monster that basically would have been worse for Tesla than the current process of technically being an out of state purchase (i.e. limiting how many vehicles they could sell, not allowing them to keep inventory, and other really weird restrictions). So Tesla stopped supporting it, and tried their luck with the courts. It'll be interesting to see what their next move is. Logic (to me -- not a lawyer of any sort) would be to follow the court's suggestion and apply directly as Tesla, and see where that goes. If that doesn't work, hopefully it wraps up quickly before the next legislative session (which is only like 45 days in January-March). Cause if you miss our pathetically short legislative session, they're SOL for yet another year.

 

[Rocky_H]

There's a rather simple solution to the problem you identify: stop trying to get the courts to legislate.

Yes, I've heard that slanted phrasing before. That's one way of looking at it.

The Utah legislature is the one that should be revising the rules to allow Tesla to sell new cars in Utah, if that's what the people of Utah want. But to keep going to court to try to do an end-around what the legislature has done and should do is always a recipe for frustration, unintended consequences and bad outcomes. Plus, it simply is not what courts are supposed to do.

So you are putting the legislature as the #1 authority, and the state constitution as the secondary authority. That's an odd perspective. Most people would see it differently. How about this concept?

To keep going to the legislature to try to do and end-around what the constitution has done and should do is always a recipe for frustration, unintended consequences and bad outcomes. If the legislature doesn't like what the constitution says, they need to change it first, not just pass laws that conflict with it.

I do see that the court acknowledged that the state laws may actually be conflicting with that provision of the constitution, but there is not specific wording in the constitution for what steps to take for an actionable remedy so they have to stop short of doing anything about it.

 

[Eclectic]

Yes, I've heard that slanted phrasing before. That's one way of looking at it.


So you are putting the legislature as the #1 authority, and the state constitution as the secondary authority. That's an odd perspective. Most people would see it differently. How about this concept?

To keep going to the legislature to try to do and end-around what the constitution has done and should do is always a recipe for frustration, unintended consequences and bad outcomes. If the legislature doesn't like what the constitution says, they need to change it first, not just pass laws that conflict with it.

I do see that the court acknowledged that the state laws may actually be conflicting with that provision of the constitution, but there is not specific wording in the constitution for what steps to take for an actionable remedy so they have to stop short of doing anything about it.

When it comes to making laws, yes, indeed, the legislature is the #1 authority. Legislatures make laws, executives enforce them, and courts decide conflicts over the meaning of the laws.

The legislature has the power to clarify this issue. The courts do not. The constitution of Utah does not speak to the issue being litigated and to try to contort it into speaking on that issue is simply a bastardization of our system, and Utah's system.

If the Utah constitution speaks clearly on a topic, of course it is paramount. But on the topic of whether an auto manufacturer can own a dealer, there is no such clarity and it is thus the legislatures, and solely the legislatures, job to enact a law on the topic, or not.

 

[Patrick W]

I spoke with Representative Coleman about the current situation. She is hopeful but could not go into details. However she thought it would be fun to have a bunch of Teslas at the capitol some afternoon during the upcoming session.

Anyone here interested in participating?

 

[KarenRei]

I spoke with Representative Coleman about the current situation. She is hopeful but could not go into details. However she thought it would be fun to have a bunch of Teslas at the capitol some afternoon during the upcoming session.

Anyone here interested in participating?

Find out the date. Make signs. Post them at superchargers in the region.

 

[Ulmo]

I had to go hunt for this a little bit. None of the articles about this would give a link to the court decision. (Nice job, press!)

https://www.utcourts.gov/opinions/supopin/Tesla v. State Tax Commn20170403.pdf

I just read it (19 pages). Tesla did bring up the constitutionality argument, and the court blew it off in a very non-serious flippant way, stating that it was too vague to use, which really pissed me off.

Quoted section here:

Not every provision of the constitution states an enforceable limitation on our government. Some provisions a
re non-justiciable: They are stated at so high a level of generality or aspiration that they require legislation to
establish a limitation enforceable in our courts.
See Bott v. DeLand, 922 P.2d 732, 737 (Utah 1996) (noting that ―constitutional provisions are not self-
executing if they merely indicate a general principle or line of policy without supplying the means for putting them into effect),
abrogated on other grounds by Spackman v. Bd. of Educ. of Box Elder Cty. Sch. Dist., 2000 UT 87, 16 P.3d 533.

¶53 The quoted language of the Free Market Clause is such a provision. This clause articulates only a ―policy. And it frames
the policy in terms that identify only a ―general principle‖ with no justiciable standard or ―means for putting [it] into effect.Id.
We know from the Free Market Clause that our charter for state government is in favor of a ―free market.‖ But we know little more
than that.

¶54 The general aspiration for a ―free market‖ is too vague a policy to sustain a justiciable constitutional standard. So without any
implementing legislation, we deem this provision non-justiciable. We reject this claim on that basis.

No wonder they didn't want a link to that published; the courts are requiring the Government to be paid off in order for constitutional liberties to be allowed, which is treason, and letting the citizens know would allow the citizens to attempt to remedy the situation and/or redesign the government, and the media is part of the treason.

 

[Ulmo]

but there is not specific wording in the constitution for what steps to take for an actionable remedy so they have to stop short of doing anything about it.

It's already specific enough: the law must be struck down.

 

[Park2670]

I can show up if needed, I have a Fiat 500e.

 

[Krugerrand]

This sounds to me a lot like passing the buck. It’s not in my job description, even though I know it’s wrong/should be changed, therefore: meh.

 

[ccutrer]

I spoke with Representative Coleman about the current situation. She is hopeful but could not go into details. However she thought it would be fun to have a bunch of Teslas at the capitol some afternoon during the upcoming session.

Anyone here interested in participating?

Tell me when. I know a few other Tesla owners that aren't on the forums I would also pass the word along to.

 

[MorrisonHiker]

Four Tesla Vehicles Recovered After Thefts at South Salt Lake Dealership