SALT LAKE CITY — The Utah Supreme Court took under advisement Friday oral arguments over the constitutionality of a statute passed by the Utah Legislature in 2016 that calls for partisan State School Board elections.
In December, 3rd District Judge Andrew H. Stone ruled that the law conflicts with the Utah Constitution. Stone, in granting the plaintiffs' motion for partial summary judgment, wrote that the challenge had "a strong likelihood of success on the merits.”
That decision was appealed by state attorneys on behalf of Utah Lt. Gov. Spencer Cox, the lone defendant in the case.
For the current election cycle, the law is on hold while the constitutional challenge proceeds.
The constitutional challenge was brought by prospective candidate for the State School Board LeGrand Richards, current board member Carol Barlow Lear, the Utah PTA, Kathleen McConkie, Randy Miller, Utahns for Public Schools and the Alliance for a Better Utah Education Fund.
Much of Friday's arguments centered on whether members of the State School Board are state employees.
Declarations and briefs filed by the plaintiffs, one of them a current member of the Utah State Board of Education, indicate board members are provided state-sponsored health insurance and paid a salary from which the state withholds federal and state taxes.
The plaintiffs assert that SB78, which changed the state Election Code, was an unconstitutional violation of Article X, Section 8 of the Utah Constitution. It provides that "no religious or partisan test or qualification shall be required as condition of employment, admission or attendance in the state's education system."
The defendants have maintained members of the State School Board are elected officials, not employees, so Article X, Section 8 does not apply.
But several of the justices questioned the state's argument Friday.
"Would you say I’m not an employee of the state?" asked Justice Deno Himonas. "I don’t know that a public official can't necessarily be an employee. I’m not sure I see it that way."
Solicitor General Tyler Green argued that the distinction is "what powers they hold" and how they got to their office.
Taken to the next level, some justices questioned whether members of the Utah Legislature could also be considered state employees.
Plaintiff's attorney Alan L. Smith said their roles are different, with the State School Board vested with the general control and supervision of the public education system while the Utah Legislature's role is establishing and maintaining the system.
The arguments also centered on whether SB78, sponsored by Sen. Ann Millner, R-Ogden, creates a partisan test to run for office. The bill was passed by the Utah Legislature and signed into law by Gov. Gary Herbert.2 comments on this story
Green said the language of SB78 gives school board candidates the option to run unaffiliated with a party, as write-in candidates or as candidates of a political party.
Stone's ruling noted that even if a candidate ran unaffiliated, a candidate's opponent who identified with a party would be identified as such on the ballot, "thus undeniably injecting partisanship into the election process," the ruling states.
The judge added: "There is perhaps no more partisan test than a contested partisan election."