Tom Gregory V. Mark Shurtleff : Lp Aintiff/ Appellant's Reply Brief Utah Court of Appeals

Brigham Young University Law School BYU Law Digital Commons

Utah Court of Appeals Briefs

2011 Tom Gregory v. Mark Shurtleff : lP aintiff/ Appellant's Reply Brief Utah Court of Appeals

Follow this and additional works at: https://digitalcommons.law.byu.edu/byu_ca3 Part of the Law Commons

Original Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generated OCR, may contain errors. Jerrold S. Jensen; Brent A. Burnett; Assistant Attorneys General; Counsel for Defendants/ Appellees. David R. Irvine; Janet I. Jenson; Jenson & Guelker; Alan L. Smith; Counsel for Plaintiffs/Appellants; John L. Fellows; Robert H Rees; Counsel for Legislature .

Recommended Citation Reply Brief, Gregory v. Shurtleff, No. 20110473 (Utah Court of Appeals, 2011). https://digitalcommons.law.byu.edu/byu_ca3/2899

This Reply Brief is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Court of Appeals Briefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available at http://digitalcommons.law.byu.edu/utah_court_briefs/policies.html. Please contact the Repository Manager at [email protected] with questions or feedback. IN THE UTAH SUPREME COURT

Tom Gregory, et al,

Plaintiffs/Appellants, Sup. Ct. Dkt. No. 20110473-SC vs.

Mark Shurtleff, et al,

Defendants/Appellees.

PLAINTIFFS'/APPELLANTS' REPLY BRIEF

APPEAL FROM SUMMARY JUDGMENT ORDERS ENTERED BY THIRD JUDICIAL DISTRICT COURT, THE HONORABLE L. A. DEVER PRESIDING

Counsel for defendants/appellees: Counsel for plaintiffs/appellants:

Jerrold S. Jensen David R. Irvine Brent A. Burnett 747 East South Temple Street Assistant Attorneys General Suite 130 160 East 300 South, Fifth Floor Salt Lake City, Utah 84102 P. O. Box 140858 Salt Lake City, Utah 84114 Janet I. Jenson Jenson & Guelker, P.C. Counsel for Legislature 747 East South Temple Street Suite 130 John L. Fellows Salt Lake City, Utah 84102 Robert H. Rees Utah State Capitol Complex Alan L. Smith House Building, Suite W210 1169 East 4020 South P. O. Box 14520 Salt Lake City, Utah 84124 Salt Lake City, Utah 84414

11 2012 Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors. IN THE UTAH SUPREME COURT

Tom Gregory, et al,

Plaintiffs/ Appellants, Sup. Ct. Dkt. No. 20110473-SC vs.

Mark Shurtleff, et al,

Defendants/Appellees.

PLAINTIFFS'/APPELLANTS' REPLY BRIEF

APPEAL FROM SUMMARY JUDGMENT ORDERS ENTERED BY THIRD JUDICIAL DISTRICT COURT, THE HONORABLE L. A. DEVER PRESIDING

Counsel for defendants/appellees: Counsel for plaintiffs/appellants:

Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR, may contain errors. I. TABLE OF CONTENTS

Subject Page

I. TABLE OF CONTENTS 2

II. TABLE OF AUTHORITIES 3

III. SB 2 TAKES POWER WHICH CONSTITUTIONALLY

IS VESTED IN THE UTAH STATE BOARD OF EDUCATION

AND UNCONSTITUTIONALLY ASSIGNS THAT POWER

TO A STATE AGENCY AND PRIVATE PARTIES 4

IV. CONCLUSION 9

V. CERTIFICATE OF COMPLIANCE AND SERVICE 10

Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR,2 may contain errors. II. TABLE OF AUTHORITIES

Subject Page

CONSTITUTIONS

Utah Constitution, Article 5, Section 1 5

Utah Constitution, Article 10, Section 1 6

Utah Constitution, Article 10, Section 3 5ff

Utah Constitution, Article 10, Section 9 (repealed) 8

CASES

Allen v. Rampton, 463 P.2d 7 (Utah 1969) 5

Carter v. Lehi City, 2012 UT 2, _ P.3d _ (2012) 5

In re Woodward, 384 P.2d 110 (Utah 1963) 7

State v. Southern Pac. Co., 79 P.2d 25 (Utah 1938) 5

Uintah State Bank v. Ajax, 297 P. 434 (Utah 1931) 7-8

United States v. Brown, 3 81 U.S. 437 (1965) 5

Utah School Boards v. State Bd. ofEduc, 17 P.3d 1125 (Utah 2001) 7

Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR,3 may contain errors. III. SB 2 TAKES POWER WHICH CONSTITUTIONALLY

IS VESTED IN THE UTAH STATE BOARD OF EDUCATION

AND UNCONSTITUTIONALLY ASSIGNS THAT POWER

TO A STATE AGENCY AND PRIVATE PARTIES

Plaintiffs have challenged the constitutionality of certain features of SB 2, an omnibus education bill. These constitutionally questionable features are as follows. SB 2fs so-called "Textbook Approval Program" delegates certain textbook alignment functions to private parties and, in section 11 on page 17, expressly forbids the Utah State Board of Education ("USBE") from involvement in tasks associated with those functions. See, "Plaintiffs'/Appellants' Opening

Brief ("Plaintiffs' Opening Brief), at pages 16-17. SB 2's so-called "Teacher

Salary Supplement Program," which provides salary enhancements for qualifying teachers, gives discretionary power to the Utah Department of Human Resource

Management (UDHRM) in allocating these benefits. Given the UDHRM's statutory structure, this legislative assignment excludes the USBE from playing decision-making or supervisory roles in this allocation of benefits. See, Plaintiffs'

Opening Brief, at pages 14-16. The evidence submitted to the lower court on these points showed that the Utah State Legislature, in enacting SB 2, deliberately stripped the USBE of alignment responsibilities in the Textbook Approval

Program because this had become politically controversial, see, Plaintiffs' Opening

Brief, Appendix D, and that both of these areas of administrative implementation, textbook alignments and the allocation of benefits to teachers, traditionally have

Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR,4 may contain errors. been performed, as core functions, by the USBE, see, Plaintiffs' Opening Brief, at pages 13-14 and Appendix C.

Utah's Constitution, in Article 5, Section 1, expressly provides for a separation of powers among the different branches of state government. This

Court recently described the separation of powers as '"a bulwark against tyranny.'"

Carter v. Lehi City, 2012 UT 2,162 & n. 46, _ P.3d _ (2012), citing United

States v. Brown, 381 U.S. 437, 443 (1965). One articulation of this doctrine, with application here, is that the Legislature, when passing laws, may not take power which constitutionally is vested in a constitutionally established department of government and give that power to another executive agency. See, e.g., Allen v.

Rampton, 463 P.2d 7 (Utah 1969) (state treasurer's office); State v. Southern Pac.

Co., 79 P.2d 25, 38 (Utah 1938) (state tax commission).

Plaintiffs do not argue that the USBE is a fourth branch of our state's government. They merely aver that the USBE, as one of several executive departments, has been constitutionally vested, in Article 10, Section 3, with specified powers. This vesting, in turn, imposes a limitation upon the Legislature; lawmakers may not remove these powers from the USBE and give them to another agency or private parties. This same argument has been sustained by this Court in an unbroken chain of judicial precedents, stretching from 1898, two years after statehood, to the present, in opinions involving the Utah State Treasurer's Office, the Utah State Board of Examiners, the Utah State Board of Pardons, the Utah

State Tax Commission, and the Utah State Attorney General. See, Plaintiffs'

Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR,5 may contain errors. Opening Brief, at pages 20-30. This argument acquires additional force,

moreover, where, as here, power is taken from an elective, and, hence, politically

accountable constitutional office and assigned to an un-elected, appointed agency

head or, worse, private parties. See, Plaintiffs' Opening Brief, at pages 21-22 & n.

The Legislature and the Attorney General largely (if not completely) ignore

these precedents, attempting to divert attention with irrelevant arguments. They

imply that plaintiffs are claiming that the Legislature does not have plenary

authority to make laws which establish and maintain the public education system

in our state, contrary to the language found in Utah Constitution, Article 10,

Section 1. But plaintiffs make no such claim. They acknowledge that the

Legislature not only is authorized but also is required to establish and maintain

Utah's educational programs, including those bearing upon textbook alignments

and teacher salaries. Plaintiffs' argument, consistent with the case law cited in their opening brief, as well as the provisions of Article 10, Section 3, is that, once those programs have become law, they must remain subject to the "general control

and supervision" of the USBE. That case law, quoted extensively in Plaintiffs'

Opening Brief, expressly states that this constitutional vesting in effect is a limitation on the Legislature's prerogatives. SB 2's provisions which are at issue in this case transgress those constitutional boundaries because they affirmatively divest the USBE of the powers of control and supervision vouchsafed to it under

Article 10, Section 3.

Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR,6 may contain errors. The Attorney General insists that this divestiture of power is permissible because the Textbook Approval Program and the Teacher Salary Supplement

Program do not implicate "core" functions of the USBE. But this claim fails for at least three reasons.

First, according to this Court, "general control and supervision," as used in

Article 10, Section 3, means "the direction and management of all aspects of [the] operation or business [of public education]." Utah School Boards v. State Bd. of

Educ, 17 P.3d 1125, 1129 (Utah 2001) (emphasis in original). The Court called this "plenary" power. Id. at 1130, quoting In re Woodward, 384 P.2d 110, 112

(Utah 1963). Because Article 10, Section 3, as interpreted by Utah School

Boards, says that power to control and supervise all aspects of public education shall be exercised by the USBE, the Attorney General's "core ~ non-core" distinction is immaterial. Plaintiffs respectfully submit that "all" means "all," a term which does not admit of division into something "core" or less than "all."

Second, the precedents cited at pages 20-30 of Plaintiffs' Opening Brief, consistent with the analysis found in Utah School Boards, do not make any distinction between core and non-core powers which may be vested constitutionally in any particular executive department. This distinction, in other words, does not appear to have constitutional significance insofar as this branch of

Utah's non-delegation doctrine is concerned. Indeed, this limitation on legislative power has been held to apply even where the administrative chore at issue might be characterized as ministerial or non-essential. See, e.g., Uintah State Bank v.

Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR,7 may contain errors. Ajax, 297 P. 434 (Utah 1931) discussed at pages 22-25 of Plaintiffs' Opening

Brief:

Third, even if the distinction between core and non-core functions does have any constitutional significance in this context, the only evidence in this proceeding shows that the textbook alignments and teacher salaries in question are core functions of the USBE. See, Plaintiffs1 Opening Brief, at pages 13-14 and

Appendix C.

The Legislature attempts to backstop the Attorney General's core vs. non- core argument, insofar as the Textbook Approval Program is concerned, by drawing a negative inference from the repeal of former Utah Constitution, Article

10, Section 9, a provision which held that neither the Utah State Legislature nor the USBE should have power to prescribe text books for use in common schools.

The Legislature's negative inference from repeal of Article 10, Section 9, is that

USBE has no general control or supervision in the realm of textbook vetting, but that the Legislature has plenary power in this area and hence may pass laws such as that portion of the Textbook Approval Program which stripped the USBE of power in connection with the mapping and alignment of textbooks. Plaintiffs respectfully disagree and do not believe that the repeal of former Article 10,

Section 9, supports this one-sided inference. Repeal was designed to release both the Legislature (in the exercise of its lawmaking powers) and the USBE (in the exercise of its administrative functions) from prior restraints. What is more, as noted in Plaintiffs' Opening Brief at page 46 & n. 21, the repeal of former Article

Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR,8 may contain errors. 10, Section 9, dovetails with constitutional changes which made membership on the USBE elective, non-partisan, and accountable to the public, showing that the

Board now could be trusted to deal with matters of textbook administration.

IV. CONCLUSION

Sections 19, 20, and 11 of SB 2, the so-called Teacher Salary Supplement

Program and Textbook Approval Program, are unconstitutional. Both programs, as established in SB 2, violate the non-delegation doctrine as that principle of constitutional law has been applied on numerous occasions by this Court. They provide that another agency, the UDHRM, and private parties shall administer programs, the general control and supervision of which are constitutionally committed to the USBE under Article 10, Section 3. The Textbook Approval

Program suffers from the additional constitutional defect of delegating government power to a private party. Accordingly, plaintiffs respectfully request that the Court vacate the lower court's order which denied summary judgment to plaintiffs and granted summary judgment to defendants. Plaintiffs further respectfully request that the Court remand the case to the lower court with instructions to enter summary judgment in favor of plaintiffs.

Dated this 21st day of February, 2012. ^ (^Q^ Alan L. Smith 1169 East 4020 South Salt Lake City, Utah 84124 Telephone: (801)262-0555

Attorney for Plaintiffs/Appellants

Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR,9 may contain errors. CERTIFICATE OF COMPLIANCE AND SERVICE

The undersigned certifies that the foregoing Plaintiffs'/Appellants' Reply

Brief complies with the word and line limitations found in Rule 24(f)(1)(A), Utah

Rules of Appellate Procedure. The undersigned's word processing system indicates that, exclusive of the front page, table of contents, and table of authorities, the reply briefs word count is not greater than 6,752 words and the line count is not greater than 548 lines.

The undersigned further certifies that the foregoing Plaintiffs'/Appellants'

Reply Brief, together with a disk containing a pdf formatted electronic version of the same, was served the 22nd day of February, 2012, by mailing copies of the same, first class mail, postage prepaid, addressed to counsel for defendants/appellees, Jerrold S. Jensen, Assistant Attorney General, and Brent A.

Burnett, Assistant Attorney General, 160 East 300 South, 5th Floor, P. O. Box

140857, Salt Lake City, Utah 84114-0857, and to John L. Fellows and Robert H.

Rees, Office of Legislative Research and General Counsel, Utah State Capitol

Complex, House Building, Suite W210, P. O. Box 145210, Salt Lake City, Utah

84414.

Digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, BYU. Machine-generated OCR,10 may contain errors.