Angry education officials aren't about to give up the fight just yet when it comes to a lawsuit that claims a 2008 legislative bill is unconstitutional.

A 3rd District Court judge has dismissed the first two counts of the "omnibus" lawsuit filed against the state by 38 plaintiffs, including some former and current legislators and state and district education officials. The argument is over a conglomerate piece of legislation, SB2, that lumped controversial education measures together in an omnibus bill.

"This issue is not over," said plaintiff Kim Burningham, State Board of Education member.

The first two counts addressed the combining of numerous bills, including some that the Legislature failed to pass as separate items.

"This is inappropriate practice," Burningham said. "Each bill should stand on its own merit."

Sen. Curt Bramble, R-Provo, who supported the omnibus bill, said, "Politics is the art of compromise."

Bramble added he is not surprised the judge threw out the first two counts. He called the lawsuit "frivolous, without merit and political grandstanding."

Some of the 16 bills dropped into SB2 had failed in the House, said David Irvine, an attorney for the plaintiffs.

Bramble, however, said neither the Senate nor the House is bound by what the other is doing.

The judge dismissed the two counts on a technicality. Irvine said attorneys are still poring over the judge's statements to fully understand the reasoning.

"It needs to be decided on its merits, not a procedural technicality," he said.

Still at issue is a measure that would take some oversight from the State Board of Education or the Utah State Office of Education and give power and control to other state or private agencies, Irvine said.

"This is an unconstitutional delegation of authority," he said.

For example, a program that gives math and science teachers a salary supplement is being routed to the state Department of Human Resource Management instead of being overseen by education officials.

"Now they have no say in it," said Alan Smith, another attorney for the plaintiffs.

Bramble said people need to remember education is not the fourth branch of government. "They are not independent of oversight by the Legislature," he said.

One of the items included in SB2 requires school districts to help fund charter schools. Fiscal aspects of the bill include teacher raises, stipends, grant programs and software for families to prepare preschoolers for kindergarten, and a K-12 financial literacy initiative.

E-mail: astewart@desnews.com