Incumbent Frances H. Merrill must apply as a potential candidate in the new nominating procedures for State Board of Education elections if she wants to try to keep her seat, an attorney general's representative said Monday.
Merrill, who believes school board districts were redrawn to gerrymander her out of her position, doesn't plan to apply. "A very disappointed but not surprised" Merrill said she may sue the state."I'm not going to apply. I believe it's communistic to have the governor select. They (nominating committees) pick the ones he wants. It's just what Third World countries have fought to overturn," she said of the new nominating procedures.
Assistant Attorney General Brian Farr told the Deseret News Monday that he believes the Utah Legislature acted within its legal authority in redrawing the school-board districts, expanding the number of districts from nine to 15 and setting up a new nominating process for elections.
The new nominating process eliminates the previous procedure that allowed anyone to file a statement of candidacy and be placed on the ballot. The new procedure sets up a seven-member nominating committee in each district with an open seat to screen candidates. They must apply to the committee by June 15. From a pool of potential candidates, the committee presents three to five names to the governor. The governor then selects two to be on the ballot.
On April 24, State Superintendent of Public Instruction Scott W. Bean requested a legal ruling on several issues involving the new elections procedures. Last week, Merrill accused the attorney general's office of delaying its opinion on the request.
The section of the Utah Constitution that created the state school board makes no mention of the number of members or terms but leaves those determinations to the Legislature, said Farr, who gave an oral opinion to Bean Monday.
"We think they (legislators) are within their legal authority in the way they have responded," he said.
In the redistricting, Merrill and a second state school board member, Ruth Hardy Funk, ended up in the same district. Funk's four-year term, however, ends in December, while Merrill's was cut short by two years. Merrill has contended that lawmakers can't prematurely end the term of an elected official.
Farr said lawmakers do have that legal power. "They do it with their own members when they do redistricting," the attorney said. After each 10-year census, political subdivisions are redistricted to apportion population fairly.
The Legislature approved the nominating process two years ago, before redistricting occurred.
Under the new law, anyone who wants to run for the state school board after Jan. 1, 1992, has to go through the nominating process. Farr said that applies to Merrill, too. "I couldn't find any statute or legislative intent that they (lawmakers) intended to exempt anyone," he said.
Merrill also raised the question of gender bias, because no men were affected by the changes. Farr said he found no gender-bias problems.
Merrill called it a "copout" for the attorney general's office to issue an oral opinion."I want a written opinion. I want to know what their rationale is."
Farr said an oral opinion was given in the interest of time because the application deadline is June 15.
In the next few days, Merrill said, she'll decide if she will sue the state. She said she is leaning toward a lawsuit.
She said an attorney has approached her about taking the case because of the issues involved.