What is the status of the omnibus bill complaint?

We're less than a week away from the beginning of the 2009 Legislative Session here in Utah and there is quite a buzz surrounding this session. Budget cuts have a lot to do with that and there is also much talk about ethics reform. We've been pretty loud about ethics reform here at the Accountability blog. In fact, before we kick off the next session on January 26, 2009, and all that will come with it, we ought to revisit a few topics that are still ongoing and some that have, perhaps, even been forgotten.

There is new information about the illegal "Omnibus Bill" officially known as SB 2 (second substitute). The plaintiffs have filed for a partial judgement concerning non-triable, unconstitutional issues of fact, specifically concerning counts three and four of the complaint on file. Count three and count four were not the main focus of the complaint last year, at least not for bloggers and news reporters. A lot of work has been done by the plaintiffs and their lawyers to show how unconstitutional the omnibus bill is, based on counts three and four. They are:

• Count Three: Portions of SB 2 violate the non-delegation doctrine and Article X, Section 3, of the Utah Constitution. (Specific to "Teacher Salary Supplement Program" SB 35 or lines 774 to 864 of SB2)
  
• Count Four: Portions of SB 2 violate the non-delegation doctrine and Article X, Section 3, of the Utah Constitution. (Specific to Section 11 of SB 2 - Requiring an "independent party" to evaluate public school instructional materials )

I'm happy to see that this is being pursued and after reading through the "Plaintiffs' Motion for Partial Summary Judgment on Article 10 Related Claims," that was served on January 5th. I was impressed with the amount of case law that was cited and how it applies in this situation. Last year I, and others, focused almost entirely on counts one and two. They state that SB 2 consisted of 14 other bills that, according to the Utah Constitution, a bill is required to have 1) a single subject and 2) a clear title. These were the most obvious parts of the complaint, but now that counts three and four have been elaborated on, they are equally valid and convincing, if not more so.

You'll need to read the document in it's entirety to fully understand where the plaintiffs are coming from, but I'll pull out some main points (the section headers, to be exact) to illustrate the newly elaborated concerns so that you can see what I'm talking about.

• SB 2 UNCONSTITUTIONALLY DELEGATES THE USBE'S POWERS AND DUTIES OF GENERAL CONTROL AND SUPERVISION OF PUBLIC EDUCATION PROGRAMS TO THE UDHRM AND PRIVATE PARTIES


• The Legislature May Not Transfer the Power Which Has Been Constitutionally Vested in a Constitutional Office to Other Agencies or to Private Parties.


• The USBE Is a Constitutional Office With Constitutionally-Vested Power to Control and Supervise Public Education in the State of Utah.


• The Teacher Salary Supplement Program and the Textbook Approval Program of SB 2 Are Impermissible Legislative Encroachments upon the Administrative Power of the USBE.
  
• SB 2 UNCONSTITUTIONALLY DELEGATES GOVERNMENT POWER TO PRIVATE PARTIES


• CONCLUSION


• Sections 19,20, and 11 of SB 2, the so-called Teacher Salary Supplement Program and Textbook Approval Program, should be declared unconstitutional. Both programs violate the non-delegation doctrine as that principle of constitutional law has been applied on numerous occasions by the Utah Supreme 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.

Whatever happens with the complaint, I believe legislators in the upcoming session will avoid the mistakes they made last year. They will be much more careful about encroaching upon powers and logrolling. We're all watching!