Even if a referendum intended to repeal school vouchers is successful, the state will still have a fully funded voucher program, Utah Attorney General Mark Shurtleff said in a legal opinion issued Tuesday.
However, his seven-page opinion does bring up "a few sticking points," including the likely loss of some of the $12 million appropriated to help public schools cope with the cost of losing students to private schools through the new voucher program.
And the program that allocates tax dollars to help parents pay private school tuition costs may also be weakened if the referendum passes because the Utah Board of Education would be allowed to regulate private schools, raising constitutional concerns.
At issue is the fact that the 2007 Legislature passed two school voucher bills, HB148 and HB174, and the referendum targets only one, HB148. The attorney general said HB174 "can stand alone and can be fully funded" through other legislative action on the budget.
"There's still a voucher system in place. It's not ideal ... but it's still there," Shurtleff told the Desert Morning News. He said his opinion may influence potential petition signers.
Despite Shurtleff's findings, the group behind the referendum is moving ahead with its petition drive and won't be "deterred by a legal opinion," said Pat Rusk, Utahns for Public Schools spokeswoman.
"People have said they would like to have a vote on this. We're doing the best we can to assure them that opportunity," Rusk said. "The attorney general's office has been wrong before. It's our opinion that we'll face that when we have to face it."
Already, she said, the group has obtained its own legal opinions that contradict Shurtleff.
"Our legal opinion is that the bill we've signed a referendum against is the main bill. The other one is just additional and amends the first bill," Rusk said. She said the opinion is not in writing but came from attorneys working with the referendum.
It was Gov. Jon Huntsman Jr. who requested an opinion from Shurtleff about how the referendum would affect the school voucher program should it qualify for the ballot and win voter approval.
"Our commitment was to simply seek clarification as to whether HB148 or HB174 would be the effective piece of legislation," Huntsman's spokesman, Mike Mower, said, adding that the governor "would respect the will of the people and put this issue on the ballot if enough signatures are collected."
The governor, a voucher supporter, has said he expects the more than 92,000 petition signatures required will be collected before the April 9 deadline and that he would call a special election in June to consider the repeal of the voucher law.
Huntsman has also said if there is a referendum, voters should have the final say on whether the state has a voucher program. Last week, he said, "if the people vote it down, obviously that's the answer. ... I would obviously respect that."
Mower said the governor stands by those statements.
Another legal opinion issued Tuesday by the pro-voucher Parents for Choice in Education agreed that a referendum would apply only to a small part of the state's sweeping new voucher program.
The other bill, HB174, could not be the subject of a referendum because it was approved by at least a two-thirds majority of lawmakers, the pro-voucher group's opinion stated. And, their opinion states, some of the provisions of that bill actually supersede portions of HB148.
All that could be repealed through the referendum, according to the Parents for Choice opinion, are "various technical and clarifying provisions and the sections providing for mitigation funds" to counter the financial impact of students leaving the public school system.
"Ironically, this means that those who are gathering signatures to repeal HB148 may actually be working to repeal the provisions that provide mitigation funds to public schools, while leaving the voucher program established by HB174 intact," their opinion states.
Rusk said allowing the voucher law to go forward without the mitigation money would be contrary to the will of "many legislators (who) voted for that bill because they were told public schools would not be harmed."
Shurtleff's opinion also raises that point, saying although the law could stand on its own, opponents could argue the mitigation monies were the selling point for many legislators. He called that possibility "troubling."
The opinions supporting school vouchers came as no surprise to Nancy Pomeroy, spokeswoman for Parents for Choice, the group that sought a legal analysis of the referendum petition from Parr Waddoups Brown Gee & Loveless.
"We support the rule of law, and we expect that HB174 substantially replaces 148," she said. "There have been a lot of attorneys and legal analysts who have looked at it, and they've all said it's solid legal ground."
Pomeroy also expects the referendum effort to continue and to garner more than enough signatures to put the issue on the ballot.
"I don't think it's an issue of getting signatures, but we believe that at the end of the day the voucher law will stand," she said.
The pro-voucher group started rolling out TV ads Tuesday promoting the program. Pomeroy said the media campaign is not in response to the referendum effort but rather an attempt to educate Utahns about vouchers.
"There's so much misinformation out there. I mean, people are saying it's going to end world civilization as we know it and induce mad cow disease," Pomeroy said. "We're trying to get the information out there."
After years of failed attempts, voucher proponents finally pushed through a bill this year establishing the most wide-ranging voucher program in the nation. The Parents for Choice in Education Act provides Utah families with a private school tuition voucher ranging from $500 to $3,000 per student attending a private school, based on parents' income.
The Parents for Choice opinion accuses the referendum petition of giving "the misleading impression that all portions of HB148 are subject to challenge. This confusion created by the defective petition may invalidate the entire petition drive."
It will be up to Lt. Gov. Gary Herbert, who oversees the state elections office, to certify the petition for the ballot. But there is little room in the law for him to invalidate a referendum based on legal questions, his chief of staff, Joe Demma, said.
"I don't know that he can look at that issue," Demma said of the questions raised about the petition possibly being defective. "The politics is not going to play a role in what he decides to do."