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.

Out of the Mouths of Babes…

by Senator Scott McCoy
District Two

Senator Scott McCoy According to The Salt Lake Tribune, the student legislators of the 19th annual 4-H Mock Legislature (and, no, they weren’t mocking the Legislature) rightly passed SB 14 which prohibits smoking in a car when a child is present. I only hope we don’t have to wait for these young people to replace the naysayers in the Legislature before we can get this commonsense measure enacted into law. Thanks for the vote of confidence. I feel vindicated. Now contact your Senators and Representatives and tell them to follow your lead.

Views on Health Care Reform

by Senator Gene Davis
Senate Minority Whip

Sen. Gene DavisIn Utah as well as elsewhere in this country, our health care system is in crisis. We applaud the fact that Governor Huntsman and the Legislature (HB 133) are willing to look at this issue, but we have to be cautious in our fix so that we keep the health care stool on a level playing field (legs of this stool are access, cost and quality). It is important that we find ways to encourage all citizens in the state to have adequate health care. We must address the issue that all cannot afford insurance. Whatever we do, it cannot be a plan that mandates and thus rewards the insurance industry; the rewards should go to the consumer. Providers should be paid adequately across the board so we don’t shift the burden to consumers. We must address the shortage of health care professionals. Whatever program is ultimately adopted, it must be health care that addresses medical, dental, vision and mental health, as well as giving all providers access to all patients. We believe we can improve the system if we are willing to address disease management, best practice guidelines, and evidence-based medicine and to encourage the teaching of healthy lifestyles without bias.

Equalization of School Capital Funding

by Senator Mike Dmitrich
Senate Minority Leader

Senator Mike DmitrichIn the past general election, east side Salt Lake County voters approved the split of Jordan School District, the largest school district in the state. The district split created capital outlay inequities among school districts, some experiencing increasing enrollment and others decreasing enrollment, resulting in greater or lesser needs for school buildings. Last year, I served on the Equalization Task Force, the objective of which was to design a fair method of equalizing the statewide financial burden of constructing school buildings. Senate Bill 48 emerged from the Task Force, and we support this proposal as a viable plan.

The bill, now SB 48, Second Substitute, “Equalization of School Capital Outlay Funding” (Sen. Dan Eastman), increases by $28.5 million the ongoing funding to the Capital Outlay Foundation Program, which provides state funding to school districts that receive less property tax revenues per pupil due to their smaller property tax base per pupil. The bill also increases the combined capital-related property tax rates a school district must impose to receive full funding from .0024 to .0030 and allows for proportional funding if a district imposes a rate below .0030.

Responsible Transportation Policies

by Senator Karen Mayne
District 5

Senator Karen MayneTransportation is the life stream of our citizens. Without dependable and accessible transportation, commerce and our quality of life would be in jeopardy. We as citizens require and deserve affordable and effective modes of mobility. Keeping our highways in good repair is a must. Encouraging and supporting all avenues of transportation are critical. Our goal is to maintain free-flow travel for our state. Planning ahead, making wise and bold decisions, will guarantee good transportation policies. We favor more east-west highways in Salt Lake County and toll-free travel.

SB60-Repealing Labor Commission Responsibilities

by Senator Ross Romero
District 7

Sen. Ross RomeroSenator Ross Romero sponsored Senate Bill 60 to eliminate the obligation of the Utah Labor Commission, through the Anti-discrimination and Labor Division, to gather information regarding the fee charged to employees by employment agencies. The bill unanimously passed in the Utah State Senate and is now working its way through the House of Representatives.

Currently, the Utah Labor Commission is obligated to maintain an oversight role over the fees individuals pay to employment agencies. The bill’s purpose is to repeal this responsibility of the Labor Commission since in recent years the practice of charging employees fees by temporary agencies has been eliminated. The law still requires city and county oversight and regulation over employment agencies. In addition, the employment agencies are still obligated to post a bond as part of their licensure.

The purpose of SB 60 is to address a resource issue confronting the Utah Labor Commission. The current process demands the use of unnecessary man hours for an outdated process. Passage of this bill will help alleviate some work to an already busy Labor Commission while also ridding the Commission of unnecessary regulatory responsibility.
SB 60 will now be heard in House of Representatives with Representative Chavez-Houck as the House sponsor.

Issues of Utah’s Seniors

by Senator Fred Fife
District One

Senator Fred Fife IIIFor many Utahns becoming a senior is an enjoyable, rewarding time of life. For others it is not. Some seniors struggle to meet their basic needs: food, shelter, health care, and the necessities for combating isolation. There was a report recently that Utah Food Bank delivered 300 food boxes to needy seniors as part of recognizing Martin Luther King Day. Many others were not so lucky.

Affordable housing is a major issue for seniors forced to relocate. Rents and housing costs have escalated far beyond increases in Social Security benefits. When a mobile home park is converted for commercial or condominium development, a senior mobile homeowner is faced with $20,000 to $25,000 in moving costs, if they can find a new location for it. Many cannot afford to keep their homes.

Seniors are the fastest growing segment of our society and are in more need of health care than any other segment of society. Affordable health care is out of reach for many seniors, resulting in complications and isolation. These seniors become disabled because of old age.

Native Americans look at life and living as coming full circle. They recognize that infants are fully dependent on others, and so, too, are elders. Our society needs to ensure that our seniors are provided with the basics of food, shelter, health care, and the necessities for combating isolation.

We, this 57th Legislature have the opportunity to play a major role in this effort.

Financial Literacy-Skills for a Lifetime

by Senator Patricia Jones
Assistant Senate Minority Whip

Senator Pat JonesThis session, I am sponsoring legislation which, if passed, will greatly broaden Financial Literacy Education in our public schools. It’s practical and smart. It was editorialized recently in the Deseret Morning News.

More than ever before, parents and grandparents believe it is vital to educate our young people to be financially responsible. Just take a look at today’s economy and you will see dire consequences of financial irresponsibility. It is critical for the stability of our families and will give our kids the ability to compete in today’s economic world.

Currently, there is a financial literacy requirement in our high schools, a half-year course in the sophomore or junior year. But it’s too little, and often too late. In addition to the half-year course, my bill integrates practical financial lessons into the math and social studies curricula in grades K-12 in areas such as:

Credit Card Debt: How much does it really cost you to buy on credit?
Investments: How do you choose a wise stock market investment?
Home Ownership: How much can you really afford for your home?
Foreclosure: If it happens, how will it impact your family?
Budgeting: How do you wisely spend your money?
Savings: Why is it important to save for a rainy day?
Retirement: How much money will be needed and for how long?
Gambling: Is it worth the risk?
Payday Loans: Do you understand the exorbitant interest rates?
Bankruptcy: How does it impact your future?

The bill provides funding to teach teachers the concepts and to assess students’ understanding of the concepts. Also proposed is a Financial Literacy Passport, a checklist of financial literacy goals which students can complete in conjunction with their required Financial Literacy half-year course in high school.

An education in financial matters for our children is a wise investment in their future.

Don’t Waste Utah

by Senator Patricia Jones
Senate Minority Caucus Manager

I plan to sponsor legislation this next session to address the problem of litter and debris on Utah’s highways (for the Department of Transportation). Here are the reasons for the legislation.

Senator Pat Jones

See if you can answer the following questions:

1) How many dispatch calls did the Highway Patrol receive last year to handle DEBRIS ON HIGHWAYS? Answer: 6,357 in SALT LAKE COUNTY ALONE!

2) How many reported accidents in Utah were caused by debris on the highway last year? Answer: About 1,000

3) Once litter has been cleaned up, how long does it take to “re-litter” and need cleanup again? Answer: About 6 weeks!

4) How much money has it cost taxpayers SO FAR THIS YEAR to clean up litter on Utah’s highways? Answer: MORE THAN
$2 MILLION! This does not include fixed equipment costs, administrative costs, facility costs, contracts or training.

5) Do you remember the “Don’t Waste Utah” anti-litter campaign? Our young people probably do not. Littering and unsecured loads destroy the beauty of our landscapes, and they cost ALL of us money.

In 2006, UDOT used 99,600 trash bags. Each bag holds 12.2 cubic feet of litter. Our “haul” in FY2006 was 45,000 cubic yards of litter. That’s enough litter to cover a football field 45 feet deep.