IN THE DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT IN AND FOR SALT LAKE COUNTY, STATE OF UTAH. DR. A. LeGRAND RICHARDS, an individual, MEMORANDUM DECISION KATHLEEN McCONKIE, an individual, RANDY MILLER, an individual, CAROL CASE NO. 170904078 BARLOW LEAR, an individual, THE UTAH PTA, a non-profit corporation, UTAHNS FOR PUBLIC SCHOOLS, INC., a non-profit Judge Andrew H. Stone Corporation, and ABU EDUCATION FUND, a non-profit corporation, Plaintiffs, vs. SPENCER COX, as Lieutenant Governor of the State of Utab, Defendant. This matter came before the Court on November 22, 2017, for a hearing in connection with the following Motions: (1) Plaintiffs’ Motion for Preliminary Injunction; (2) defendant’s Motion for Partial Summary Judgment; and (3) plaintiffs? Cross-Motion for Partial Summary Judgment on Art. X Issues. At the conclusion of the hearing, the Court took the matter under advisement to further consider the parties? written submissions, the relevant legal authorities and counsel’s oral argument. Being now fully informed, the Court rules as stated herein. The plaintiffs’ Complaint challenges the constitutionality of Senate Bill 78 (“SB 78") which amends the Election Code, Utah Code Annotated § 20A-1-101, et. seq., as it relates to the election of Utah State Board of Education (“Board”) members. The parties agree that as a result of this amendment, beginning with the 2018 election year, Board members are to be elected in a partisan election. InRICHARDS V. COX PAGE 2 MEMORANDUM DECISION particular, Utah Code § 20A-14-104.1 requires a person who wishes to become a candidate for School Board to go through ordinary means (including a process where candidates ordinarily declare a political affiliation) and, more directly, declares “The office of State School Board of Education member is a partisan office.” § 20A-14-104.1(2). ‘The plaintiffs assert that the amendment is an unconstitutional violation of article X, section 8 of the Utah Constitution, which provides: “No religious or partisan test or qualification shall be required as a condition of employment, admission, or attendance in the state's education systems.” The defendant maintains that even if candidates for the Board are now required to follow the general election procedures, (1) article X, section 8 does not prohibit partisan activity in connection with Board member elections, it only prohibits a “partisan test,” and (2) Board members are elected officials rather than employees and therefore fall outside the scope of article X, section 8. The Court addresses these arguments in turn, “In interpreting the state constitution, we look primarily to the language of the constitution itself {OJur Constitution ... should be interpreted and applied according to the plain import of [its] language as it would be understood by persons of ordinary intelligence and experience. We need not inquire beyond the plain meaning of the [constitutional provision] unless we find it ambiguous.” T-Mobile USA, Inc. v. Utah State Tax Com'n, 254 P.3d 752, 762 (Utah 2011). According to the defendant, in prohibiting a “partisan test,” article X, section 8 prohibits only “an actual test - ie. that the person must be a member of a particular partisan political party (or not be a member of a specific partisan political party).” (Defendant's Memorandum in Opposition to Plaintiffs’ Motion for Preliminary Injunction at p. 13). The defendant asserts that “in this case there is no partisanRICHARDS V. COX PAGE 3 MEMORANDUM DECISION test, Candidates for the State Schoo! Board can run as a candidate of [a] political party, as a candidate unaffiliated with a party, or as a write-in candidate... There is no bar based upon a partisan qualification to become a candidate or to be elected, nor is there any bar of a member of any particular poli ical party from being a candidate or being elected.” Id, at p. 6 The language here is plain English, and, given its comparatively recent adoption in its current form in 1986, is hardly ancient text requiring complex interpretation. The focus of this phrase is not, as the defendant suggests, on whether a candidate may choose to run as a member of a particular party or not, but rather on whether the Board member selection process is independent of partisan politics. There is perhaps no more partisan a test than a contested, partisan election. In other words, the plain meaning which the Court gives to this constitutional provision is to prohibit the selection of Board members with a partisan election which permits candidates to designate a political party affiliation. For instance, the defense rationalizes that a particular candidate for the Board may run as unaffiliated. However, that candidate’s opponent may be identified with a particular party which would be designated on the ballot, thus undeniably and impermissibly injecting partisanship into the election process. In such a case, at least that election requires a partisan test. At its essence, it is the declaration of Board membership as a partisan office that violates the plain import of the partisan prohibition in article X, section 8. In addition, the Court rejects the defendant’s view that article X, section 8 does not apply to Board members because they are elected officials and not employees. Again, the Court need not inquire beyond the plain and ordinary meaning of “employment,” to determine that Board members meet the indicia of employment. As outlined in the plaintiffs’ Brief Supporting First Motion for Preliminary Injunctive Relief, and in particular the Lear Declaration, Board members ate paid a salary. The stateRICHARDS V. COX PAGE 4 MEMORANDUM DECISION withholds federal and state taxes, including Social Security and Medicare taxes. Members are provided with state-sponsored health insurance. 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, Even if State Board members did not meet the legal definition of “employment,” that focus is, in fact, too narrow. It is unreasonable to expect that the voters, in passing on the constitutional language, were focused on a narrow legal test of the term. Sec. 8 of Article X refers broadly to “employment ... in the state’s education systems.” The same Article vests “general control and supervision of the public education system” in the state Board. Under ordinary meaning, voters approving Section 8 would understand that those specifically charged with supervising and controlling the education system are “employed” in that system. Admittedly, this is a closer question than whether an election with declared parties is a partisan test. Section 2 of Article X defines the state’s public and higher education systems, and makes no mention of the State Board, which is provided for in Section 3. Arguably, the State Board is employed in the broad sense of the word in education, but not in the state's education systems, as proscribed by Section 8. In the broad meaning of the word employment, the Legislative and the Executive Branches are each “employed” to some extent in setting policy for education, but that plainly is not “employment . . . in the state’s education systems.” A line must be drawn somewhere. Ultimately, however the Board's specific Section 3 power of “general control and supervision of the public education system” 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RICHARDS V. COX PAGE 5 MEMORANDUM DECISION Based on the foregoing, the Court grants the plaintiffs’ cross-Motion for Partial Summary Judgment with respect to the plaintiffs’ First Claim for Relief, asserting that SB 78 violates article X, section 8. The Court also grants the plaintiffs’ Motion for Preliminary Injunction. The Court’s granting of Plaintiffs’ Motion for Partial Summary Judgment indicates a strong likelihood of success on the merits The requirement that plaintiffs seek election in a partisan process constitutes irreparable harm-the nature of their respective campaigns and their chances of ig are clearly not compensable in monetary damages or by subsequent declaration. The balance of the harms falls equally on the parties, though the Court notes that an injunction will more closely preserve the current status quo. Finally, because in the Court’s view an injunction is necessary to give effect to the constitutional provision, it does not offend the public interest to grant it. The Court denies the defendants’ Motion for Partial Summary Judgment. Counsel for the plaintiffs is to prepare an Order consistent with this Memorandum Decision and should submit the same to the Court for review and entry. Dated is_// day of December, 2017. ‘ANDREW H. STONE, DISTRICT COURT JUDGE.RICHARDS V. COX PAGE 6 MEMORANDUM DECISION CERTIFICATE OF SERVICE T hereby certify that I emailed/mailed a true and correct copy of the foregoing Memorandum Decision, to the following, this }]4“~_ day of December, 2017: David R. Irvine Attomey for Plaintiffs 747 E, South Temple, Suite 130 Salt Lake City, Utah 84102 Drirvine@aol Alan L. Smith Attomey for Plaintiffs 1169 East 4020 South Salt Lake City, Utah 84124 Alanakaed@aol.com ‘Thom D. Roberts Greg Soderberg Assistant Attorneys General Attomeys for Defendant P.O. Box 140857 160 East 300 South, Fifth Floor Salt Lake City, Utah 84114-0857 thomroberts@agutah.gov gsoderberg@agutah.gov Guecler