Merrill Cook thinks the state's "impartial" analysis of his term limitation/run-off election ballot initiative contained in a taxpayer-paid voter information guide is anything but impartial because it says his initiative is unconstitutional.
"This (opinion) has no place in the `impartial' section of the guide," Cook said Monday after being informed of the report written by the Office of Legislative Research and General Council. "This is outrageous. It would be fine as part of the opposition (response in the guide), but it certainly isn't impartial and I resent it." Cook has hired attorney Ron Yengich to represent the initiative's interest in court, if necessary.The state, under the auspices of Lt. Gov. Olene Walker, the state election officer, is spending $100,000 to print and distribute 705,000 copies of the voter guide. It will be placed in newspapers around the state, in public libraries, county clerks' offices and at polling places. Most people will get their guides through their local newspapers, including the Deseret News, shortly before the Nov. 8 election.
The guide contains information about how to vote and small sections on each ballot proposition, including Cook's Initiative A. Cook and Democratic senatorial candidate Pat Shea wrote the "pro" articles on Initiative A for the guide. House Speaker Rob Bishop, R-Brigham City - who sponsored and got a GOP-backed term-limit law passed in the 1994 Legislature - wrote the "con" section.
Cook's complaint is with the section written by legislative staffers titled "Impartial Analysis." That section says the part of Cook's initiative that exempts current officeholders from term limits "may violate the equal protection clauses of the United States and Utah constitutions."
Concerning Cook's requirement that if no candidate gets 50 percent of the vote in the general election a run-off election is held a month later, legislative attorneys wrote that because the Utah Constitution says officers will be elected at the general election "these provisions . . . making those state officers and legislators subject to a run-off election after the (general election day) required by the (state) Constitution are probably unconstitutional."
In two other places, legislative attorneys say or hint that Cook's initiative may be unconstitutional.
"I have very good attorneys who tell me this initiative is completely constitutional," said Cook. "In any case, this is a matter for the courts to decide, if it comes to that. These kinds of opinions, by state employees, don't belong in any `impartial analysis.' This is another example of how state officials have tried to sink this thing from the start."
Legislative General Counsel Gay Taylor said state law requires that her office give a legal opinion, as part of the voter guide analysis, on how any initiative interacts with existing law. "Existing law is certainly the Utah and U.S. constitutions. We have to give our true and accurate opinion, and we did."
Richard Strong, director of legislative research, said this isn't the first time his office has discussed constitutionality in a voter's guide. "We touched on it in our review of the parimutuel-betting initiative in 1992. True, we didn't delve into it then because of how that initiative was written. But (Cook's initiative) directly journeys into the Utah Constitution when he sets run-off dates that conflict with elections set in the Constitution. We had to address it."
The impartial analysis also says that Cook's initiative attempts to amend several sections of an old election code, repealed by lawmakers in the 1993 Legislature. It goes on to say that trying to amend repealed law is legally questionable. "That's plain unfair," said Cook. He said he had his petition accepted by Walker's office in March 1993, less than a month after the session ended. "We wrote our petition on published available law. We didn't know they'd changed it."
Strong said Cook actually filed an amended petition in late April 1993. In any case, everyone knows the Legislature was meeting, said Taylor. Cook could have contacted legislative attorneys to ask if election law had been changed. He didn't, she said.
This is only the latest in a number of complaints Cook has made against Walker and state officials. Cook has complained bitterly that Walker, a Republican, has tried to harm his initiative process. The state Republican Party opposes Initiative A. Cook, an independent, also is running for the 2nd Congressional District, and Republicans fear he may harm GOP candidate Enid Greene Waldholtz's chances - all of which adds more intrigue to the matter.
Walker denies all charges, saying, "we've bent over backwards to be fair to Merrill." Initiative supporters confronted Walker in her office several weeks ago, shouting her down as she tried to explain why she sent Cook's signature petitions back to county clerks for a recount.
Cook says he's now sent Walker a letter officially protesting the way Initiative A will be listed on the ballot. The ballot will say Cook's initiative does three things - create term limits, require run-off elections and provide run-off elections for 1994. Cook says his initiative has only two sections - term limits and run-off elections. "By separating the run-off election part, people - at the ballot box - now have to decide yes on three things in order to vote yes. They should only have to decide yes on two things in order to vote yes. It just makes it tougher, another attempt (by state officials) to defeat this."