The Real Story about the SB2 Lawsuit

by Senator Scott McCoy
District Two

Senator Scott McCoy

Speaker Curtis, President Valentine, and Senator Stephenson (the “Three Amigos”) recently wrote op-ed articles or appeared on the radio criticizing a citizens’ lawsuit of which I am a participant as a plaintiff and which argues that SB 2, an omnibus bill, is unlawful in light of Article VI, Section 22, of the Utah Constitution. But their grounds for criticism are either irrelevant or miss the mark.

The Three Amigos accuse plaintiffs of “political grandstanding” in an election year. This accusation ignores the facts. The lawsuit itself is about constitutional principles, not political personalities. In any event, there are 38 plaintiffs, equally divided among Republicans, Democrats, and non-partisans. Twenty-two of these 38, well over half, are not even running for office, and another 8 are in state or local school board races which by definition are non-partisan in character. Another plaintiff, Republican Sheryl Allen, is running unopposed and, therefore, doesn’t have a political motive. Other incumbent legislators may be up for re-election, but certainly don’t need to rely on a lawsuit to get re-elected. A good example is Rep. Christine Johnson who won her election last year with more than 70 percent of the vote. As for me, I am not even up for re-election until 2010. As for their rather pathetic attempt to taint my motive with their broad accusation of “political grandstanding” based on reports that I am running for a leadership position in my caucus, filing the lawsuit is the last thing on the minds of my colleagues and will have no bearing on our leadership contest. Sadly, they know this to be true, but having no other way to accuse me of being politically motivated, would rather try and mislead the public by leaving a false impression.  Not to mention essentially accusing me as an attorney of violating professional ethics and the rules of civil procedure by arguing that I allowed a frivolous lawsuit to be filed not for valid legal reasons but purely to score a “cheap political victory.”  I do not file lawsuits for political reasons.  I may be a politician and have a political role to play, but I still abide by my ethical obligations and duties as a member of the Bar.

If the Three Amigos are threatened politically by this constitutional challenge, I respectfully submit that this is a projection of their own guilty consciences and insecurities over their chosen methods, and not a reflection of the plaintiffs’ motives. What exactly are they afraid of anyway? From where does their anxiety spring? Could it be from a fear that their management techniques and methods will be found to be suspect and improper? Their public relations attack on my and the plaintiffs’ motives reveals that perhaps the lawsuit isn’t “frivolous” as they blithely assert.

The ultimate antidote for their anxiety, really, is to read the Utah Constitution which, among other sound principles, provides that the people are masters who elect representatives and senators as servants, and that, when those representatives and senators exceed the scope of their constitutionally delegated agency or otherwise misbehave, then, like all servants, they may be brought to account under our system of checks and balances via judicial review of their actions in light of the Utah Constitution. Legislative leaders who have lost their way and forgotten their place may call this “grandstanding,” but the plaintiffs, as garden variety Americans and ordinary citizens, affirm that it is nothing more than holding their duly elected servants constitutionally accountable through constitutionally prescribed means. This lawsuit will be played out in the courts and ultimately decided by the judiciary, not the court of public opinion. As such, the Three Amigos should concentrate more on the legal arguments and justifications for their legislative tactics and a little less on election-year hand-wringing.

Putting aside their irrelevant ad hominen attack on the motives of plaintiffs, the Three Amigos argue that SB 2 was passed by a majority of both houses of the state legislature, that plaintiffs’ sour grapes to the contrary notwithstanding, the majority rules, and that, although passage of the omnibus bill was a bit messy, the end product was good for public education. And, moreover, since SB 2 was all about education, how can it offend the “single subject” language of Article VI, Section 22, of Utah’s Constitution?

Here, again, however, the Three Amigos miss the mark while at the same time demonstrating their unfamiliarity with fundamental constitutional principles. Article VI, Section 22, of Utah’s constitution, the so-called “single subject” and “clear title” provision, is one of several limitations on legislative power which was designed as a prophylactic against well-known parliamentary vices. One of those vices occurs when two bills, neither of which, standing alone, can obtain majority approval on individual merit, are bundled so that two minorities collude illicitly to obtain majority passage of the combined bills. When bills are combined in this fashion, legislators fear that, unless they vote for the “bad bill,” there will be no reciprocity and they might lose the fight for a “good bill.” This fear breeds artificial majorities, and legislation that is the product of maneuver and extortion, rather than sound policy-making. This is exactly what happened with SB 2. Almost all of the 14 bills that ultimately became SB 2 were introduced, reviewed, debated, and voted upon as single subjects. The bills were related loosely to the “subject” of “education,” but, as “single subject” measures in their own right, they bore little or no relationship to each other. Several of the bills actually were defeated by majority vote in the House or failed to obtain committee approval in the House or Senate. All ultimately were rolled into one bill, SB 2, together with vital appropriations measures, raising concern that, but for the combination of popular bills and money measures, these previously defeated bills would not have passed. This is precisely the process that Article VI, Section 22, was designed to prevent. And it is deeply disturbing that elected officials, especially those who call themselves leaders, have no understanding (let alone reverence) for these basic constitutional principles.

But why all this fuss about constitutional procedure? Wasn’t the end-product good after all? The Three Amigos give us a long tally of dollars and cents in salary raises and budget increases. But we should pause in the midst of their self-congratulation. Good laws are the product of good lawmaking, and that translates, in large measure, to constitutionally prescribed lawmaking. Most of us know from painful experience that ends do not justify means, and, indeed, that means often are integral to the merit of any given outcome.  For example, if you ran a bill that had an abortion provision and a tax provision and I tried to amend out the abortion provision and we debated the bill for hours on end in the first week of the session and my amendment failed and the bill then passed both houses and the governor signed it, according to your argument, the bill would not be unconstitutional. Wrong. It would still violate the single subject rule of the Utah Constitution. Presumably the Three Amigos would think a suit challenging its constitutionality would be “political” when in fact it would be an easy win under the single subject rule even under their limited understanding and narrow interpretation of the constitutional provision.  It is not whether you get a majority to vote for a bill, therefore, but whether that majority is obtained fairly, openly, and honestly – and, most important, within constitutionally prescribed bounds – that matters. And while the Three Amigos are quantifying their “achievements” — for real estate developers or pre-school software vendors — in dollars and cents – would they take equal care in counting the costs of infidelity to constitutional principle?

Finally, I offer the untold story on the question of resolving this dispute.  The Three Amigos chide the plaintiffs for declining to meet for the purpose of seeking a compromise. This is eyewash.

Representatives of plaintiff, not only met with Curtis and majority leader Clark, but met more than once, and even offered to meet a third time, but were rebuffed by the Speaker who couldn’t find room on his calendar that week to do it. On the two occasions when meetings were held, the Speaker gave no hint that he would yield in order to talk about a compromise.  Under these circumstances, Plaintiffs once again may be forgiven for doubting the sincerity of the Speaker’s invitation to “reason together,” and this doubt, not unnaturally, has grown after reading his misleading accusation in his op-ed about the plaintiffs’ so-called refusal to meet and talk with him before filing the complaint.

If the Three Amigos want to find a compromise, and if they believe they have any influence in achieving that goal, then the filing of a lawsuit is no impediment in this regard.  Normal, competent people settle lawsuits all the time. Our door is open; all they has to do is walk through it.

Finally, prior to filing the complaint, representatives of plaintiffs did meet with Governor Huntsman about their intentions in order to search for solutions. The Governor immediately found time on his calendar to meet and talked frankly and intelligently about the pros and cons of a special session to remedy the problems created by SB 2. Plaintiffs sought the meeting with the Governor, of course, because he is empowered under the Utah State Constitution to call a special session, the one obvious solution (for those who sincerely want to talk about a solution) to treat this issue. Why then did the Three Amigos chide plaintiffs for failing to meet with them about a solution and fail to mention plaintiffs’ meeting with the Governor on this score? Perhaps they forgot about the other two co-equal branches of government set up by the constitution.

As for other specific “arguments,” the number of pages doesn’t necessarily have an impact on whether a bill violates the constitution, so the Three Amigos’ reference to page numbers is simply silly. As to their argument that I and others tried to amend the bill and failed, again this is not the key to determining constitutionality as discussed above.  As to the argument that fiscal note bills are held until the end of the session, while some may be held, they don’t have to be, and certain of the education bills weren’t nor was the voucher bill.  Even if the rule/practice says that fiscal note bills should be held, the Three Amigos know well that the rules are suspended all the time.  Their reliance on this argument is disingenuous at best and misleading at worst.

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