Tuesday, May 29, 2007

the school board got it right

Today the state school board, after hearing from the Attorney General for hours, voted not to implement a vouchers program for the next school year. The ruling sets up a court battle at the Utah Supreme Court. Look for the court to avoid controversy and narrowly rule on the statutory interpretation, not the constitutionality of vouchers in Utah.

"This to me is the way to get it before a court and get it heard by somebody who can make a decision so we can go forward," said board member Dennis Morrill of Taylorsville. "Everybody ought to be cheering who wants this decided once and for all."
Shurtleff, of course, urged in his opinion letter that the Board should start "a voucher program based on a second law that was drafted to amend the original voucher act but accidentally re-enacted entire sections and completely omitted others."

The very title of the bill is "Education Voucher Amendments" meaning that it relates back to HB 148, which is subject to repeal this November. Mean that HB 174 will be mooted if the voters repeal 148. If that weren't enough, those who voted for 174 who didn't vote for 148 (those making it referendum-proof) did so thinking they were fixing 148, not creating a new bill.

We were ensured it was cleanup legislation — there was confusion among senators and representatives," said Rep. Rosalind McGee, D-Salt Lake. "HB174 is a muddle policy fragment— please don't make state policy based on muddled policy."

For those of you doubt my legal reasoning, here is a primer from the most recent Utah Supreme Court case I can find:
When interpreting statutes, we look first to the statute's plain language with the primary objective of giving effect to the legislature's intent. Savage v. Utah Youth Vill., 2004 UT 102, P18, 104 P.3d 1242. "We presume that the legislature used each word advisedly" and read "each term according to its ordinary and accepted meaning." State v. Barrett, 2005 UT 88, P29, 127 P.3d 682 (internal quotation marks and citation omitted). Statutes should be read as a whole and their provisions interpreted in harmony with related provisions and statutes. Miller v. Weaver, 2003 UT 12, P17, 66 P.3d 592.

When the language of the statute is plain, other interpretive tools are not needed. Adams v. Swensen, 2005 UT 8, P8, 108 P.3d 725. However, if the language is ambiguous, the court may look beyond the statute to legislative history and public policy to ascertain the statute's intent. Utah Pub. Employees Ass'n v. State, 2006 UT 9, P59, 131 P.3d 208 (Parrish, J., concurring). When viewed holistically, a statute is ambiguous if duplicative, yet plausible meanings are not eliminated from possibility. Id. P60. Martinez v. Media-Paymaster Plus/Church of Jesus Christ of Latter-Day Saints, 2007 UT 42, PP46-47

"My duty to my client is to tell them to obey the law ... sometimes what we say our client doesn't want to hear," Shurtleff said. However Shurtleff didn't do that, because his ultimate client is the Utah GOP, and their out-of-state donors want this bill to be valid, even if the people of Utah don't.

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