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Utah court rules against partisan State School Board elections

A 3rd District judge has ruled that a law passed by Utah Legislature in 2016 that calls for partisan State School Board elections is in conflict with the Utah Constitution.
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SALT LAKE CITY — A 3rd District judge has ruled that a law passed by the Legislature in 2016 calling for partisan State School Board elections is in conflict with the Utah Constitution.

Third District Court Judge Andrew H. Stone wrote that there is "a strong likelihood of success on the merits" in granting the plaintiffs' motion for partial summary judgment on Monday.

Stone also granted a preliminary injunction, effectively putting the law on hold. SB78, sponsored by Sen. Ann Millner, R-Ogden, was to go into effect next year.

Plaintiffs, who included current and former members of the State School Board, the Utah PTA and Utahns for Public Schools, claimed SB78 would result in a partisan curriculum, partisan practices and the employment of partisan school leaders.

Carol Barlow Lear, a current member of the State Board of Education and a plaintiff in the lawsuit, said Stone's ruling was a "really good pre-Christmas present."

The ruling acknowledges the importance of preserving the State School Board "as a nonpartisan island of immense importance. I think it's such a good thing for Utah," she said.

The lawsuit, which named Lt. Gov. Spencer Cox as the sole defendant, was filed in June.

Paul Edwards, deputy chief of staff to Gov. Gary Herbert, said the governor's office is reviewing the ruling.

"We look forward to working with the Legislature to be responsive to the ruling of the court," Edwards said in a prepared statement.

The defendants argued there was no partisan test, noting that candidates could run as candidates of a political party, unaffiliated with a party or as write-in candidates.

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.

"There is perhaps no more partisan test than a contested partisan election," Stone wrote.

The plaintiffs asserted that the amendment to 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 maintained members of the State School Board are elected officials, not employees, so Article X, Section 8 did not apply.

Declarations and briefs filed by the plaintiffs indicated that State School Board member are provided state-sponsored health insurance and paid a salary from which the state withholds federal and state taxes.

"Therefore, according to its plain meaning, board members hold 'employment' in a legal sense in the state's education system and therefore fall within the purview of Article X, Section 8," Stone wrote.

The decision further notes that Article X Section 3 of the Utah Constitution vests "general control and supervision of the public education system" to the State School Board.

This "leads the court to conclude that the most natural reading of the Section 8 proscription would include the board as being employed in that system," the decision states.

Lear described Stone's ruling as courageous, but realizes the issue could still end up before the Utah Supreme Court if the state appeals the decision.

"For a state court judge, that takes a lot of guts because we all know they have significant legislative pressure if they have future (judicial) aspirations," said Lear, who is an attorney in private practice who specializes in education law.

According to the Utah Legislature's website, SB78 passed by a vote of 24-4 in the Senate and 50-23 in the House of Representatives.

The legislation was introduced to establish a path forward after another court ruled against the process of selecting State School Board candidates. They were interviewed by a nominating committee which forwarded its recommendations to governor, who picked two candidates for each board seat.