In a move to clear up school voucher confusion as swiftly as possible, opponents want to send the crux of the voucher issue straight to the Utah Supreme Court.
Friday Rep. Sheryl Allen, R-Bountiful, submitted a "request for agency action" asking the State School Board to issue an emergency order that would declare the voucher amendment law, HB174, invalid and unable to stand on its own apart from the original voucher bill, HB148. The latter is the target of the referendum vote scheduled for November.
HB174, an amendment bill that made some minor changes to the original voucher law, also passed, and many say it's now law.
But critics say the bill is fragmented and missing critical sections, and the state board has yet to implement the amendment law.
In what was described as a "quasi-judicial process" by the board, the order requested by Allen would send the matter directly to the Supreme Court. Voucher supporters would have 30 days to appeal the order, and the process would automatically be before the high court. The board will consider Allen's request in a special meeting Tuesday.
"This is the first, best and last hope to get the Supreme Court to rule before the November vote," said Janet Jenson, attorney for both Allen and the anti-voucher group Utahns for Public Schools.
Thursday, voucher supporters filed suit challenging the ballot language that would be used for the referendum vote because, they say, it would mislead voters into believing they could vote the voucher law down when there already is one in place.
Leaders in that lawsuit said they opted to go that route instead of suing the state board for failing to implement a program under HB174 because it side-stepped months of going through the trial courts and appeals.
But Jenson said that approach only addresses the ballot language and fails to get to the real issue: whether HB174 can be treated as a stand-alone bill.
According to Jenson, Utah's Administrative Procedure Act allows the state board to issue an emergency order that would go directly to the Supreme Court.
"We assume that order will be appealed and the appeal goes straight to the Supreme Court it puts us on the freeway, removes all the stop signs, and it's the fastest, most absolutely certain way to get this issue to the Supreme Court in time to resolve it before the November election," Jenson said.
"No one else can act or has acted. The governor won't call a special session, the Legislature will not go into special session, and the other lawsuit is challenging the 100 words on the ballot title (which is) tangential to the real issue," she said.
Allen said her motivation in requesting the order stems from the fact that she allowed HB174 to pass, thinking it was an amendment.
"I certainly failed as a legislator, thinking that was meant to be an amendment. The consideration that it would be a stand-alone bill never even entered my mind," said Allen, who led opposition to the voucher proposal in the Legislature. "This has become confusing, and I think the voters, no matter how they feel, deserve clarity, and hopefully this will expedite that."
But voucher supporters say that if state board members issue the order they are breaking the law
"If they don't (implement HB174) they are breaking the law and doing a disservice to children they are showing that they are about safeguarding the system above moms and dads, above kids and above the law," said Leah Barker, spokeswoman for Parents for Choice in Education and Children First Utah.
Also on Tuesday, state board members will discuss the response of Utah Attorney General Mark Shurtleff to nearly two dozen legal questions regarding the implementation of HB174.
That letter basically boiled down to one instruction: Implement a voucher program.
That would be the third time the AG's office has issued an opinion stating that HB174 would hold the voucher law intact.
But state board leaders say they aren't seeking directives, only opinions.
"I don't think one elected person can tell a group of other elected people what to do," said Kim Burningham, state school board chairman. "The public are the people to whom we are accountable."
The original voucher law, HB148, would provide families with private-school tuition vouchers ranging from $500 to $3,000 per year, scaled to income.Comment on this story
But voucher opponents filed for a referendum, gathering more than enough signatures to put the issue of a voucher program on the ballot in November. Polls including a new survey for the Deseret Morning News and KSL-TV have showed a narrow majority of Utahns oppose vouchers.All sides agree the matter will probably have to be settled in court.