Richards v. Cox

This opinion is subject to revision before final
publication in the Pacific Reporter
2019 UT 57IN THE
SUPREME COURT OF THE STATE OF UTAH
DR. A. LEGRAND RICHARDS, 1
Appellees,
v.
SPENCER COX, Utah Lieutenant Governor,
Appellant.
No. 20180033
Filed September 11, 2019
On Direct Appeal
Third District, Salt Lake
The Honorable Andrew H. Stone
No. 170904078
Attorneys:
David R. Irvine, Alan L. Smith, Salt Lake City, for appellees
Sean D. Reyes, Att’y Gen., Tyler R. Green, Solic. Gen.,
Stanford E. Purser, Deputy Solic. Gen., Salt Lake City, for appellant
JUSTICE HIMONAS authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, JUSTICE PETERSEN, and JUDGE HAGEN joined.
ASSOCIATE CHIEF JUSTICE LEE filed a separate opinion concurring in
part and concurring in the judgment.
Having recused himself, JUSTICE PEARCE does not participate herein;
Court of Appeals JUDGE DIANA HAGEN sat.
JUSTICE HIMONAS, opinion of the Court:
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1KATHLEEN MCCONKIE, RANDY MILLER, CAROL BARLOW LEAR, THE
UTAH PTA, UTAHNS FOR PUBLIC SCHOOLS, INC., and ABU EDUCATION
FUND are also parties to this appeal.
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RICHARDS v. COX
Opinion of the Court
INTRODUCTION
¶1 The 2016 legislature enacted Senate Bill 78 (SB 78), which
imposed election laws for the office of State Board of Education
member. See S.B. 78, 61st Leg., Gen. Sess. (Utah 2016). The question
before us is not whether SB 78 is good public policy: that’s a question
for the citizens of Utah, speaking through their duly elected
representatives. No, the question before us is whether SB 78 violates
the Utah Constitution. 2 It does not.
¶2 SB 78 specifically requires “[a] person interested in becoming
a candidate for the State Board of Education [to] file a declaration of
candidacy” in compliance with the Utah Code sections relating to
general elections, 3 and explicitly made “[t]he office of State Board of
Education . . . a partisan office.” UTAH CODE § 20A-14-104.1. 4
Appellees argue that article X, section 8 of the Utah Constitution,
which states that “[n]o religious or partisan test or qualification shall
be required as a condition of employment, admission, or attendance
in the state’s education systems,” prohibits the legislature from
establishing partisan elections as the means by which State Board of
Education members (Board members) are elected. Appellant State of
Utah counters that Board members are not employed in the state’s
education systems and are therefore not covered by article X, section
8. The State further contends that, even if Board members are
employed in the state’s education systems for the purposes of article
X, section 8, the prohibition against “religious or partisan test[s] or
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2 It’s neither this court’s right nor its vocation to make
constitutional judgments based on its view of whether the legislature
has made good or bad policy judgments. As Justice Oliver Wendell
Holmes once famously and wryly put it, “if my fellow citizens want
to go to Hell, I will help them. It’s my job.” Letter from Oliver
Wendell Holmes Jr. to Harold J. Laski (Mar. 4, 1920), in 1 HOLMES-
LASKI LETTERS, 1916–1925, 249 (Mark DeWolfe Howe ed., 1953).
3 See UTAH CODE §§ 20A-9-201 to -202.
4 We note that the legislature recently enacted Senate Bill 236,
which amends Utah Code section 20A-14-104.1, a portion of the
Election Code that relates to how one becomes a candidate for State
Board of Education, in several material ways. See S.B. 236, 63rd Leg.,
Gen. Sess. (Utah 2019). For example, it is no longer the case that
“[t]he office of State Board of Education . . . [is] a partisan office.” See
UTAH CODE § 20A-14-104.1. We do not, however, look to or pass on
these amendments as they would not alter the outcome under the
logic of either the majority or concurring opinions.
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qualifications[s]” does not apply to or establish a ban on general
partisan elections for Board positions.
¶3 Because we agree with the State that Board members are not
employed in the state’s education systems, and are therefore not
covered by article X, section 8 of the Utah Constitution, we need not
reach the second question as to whether a general partisan election
runs afoul of article X, section 8’s ban on partisan or religious tests or
qualifications. 5 Accordingly, we reverse the district court and hold
SB 78 to be constitutional and commensurately allow its
implementation.
BACKGROUND
¶4 Article X, section 8 of the Utah Constitution provides that
“[n]o religious or partisan test or qualification shall be required as a
condition of employment, admission, or attendance in the state’s
education systems.” In 2016, the legislature passed SB 78, which
amends the Utah Election Code, makes the office of State Board of
Education a partisan office, and requires Board members to be
elected through the general partisan election process. See UTAH CODE
§§ 20A-14-101.1 to -104.1. Appellees brought suit asking the district
court to issue an injunction enjoining the implementation of SB 78 on
the grounds that it violates article X, section 8 of the Utah
Constitution.
¶5 The district court agreed with appellees, concluding that
“[t]here is perhaps no more partisan a test than a contested, partisan
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5 The concurrence suggests that we have only resolved the
“threshold question of . . . the meaning of the phrase
’employment . . . in.’” Infra ¶ 45. That recitation misapprehends our
opinion. Unlike the concurrence, we assume that the State Board of
Education is a part of the state’s education systems and expressly
conclude that Board members do not hold employment in those
systems. The concurrence essentially does the opposite—it first
concludes “that members of the Board of Education are not a part of
the ‘state’s education systems,’” making the answer to the question
of the meaning of “employment . . . in” irrelevant. Infra ¶ 55. We
cannot get on board with the concurrence’s approach, which
requires us to declare that the State Board of Education—the head of
much of the state’s education systems—is not a part of the state’s
education systems. We conclude that it is unnecessary to reach the
difficult question of whether the State Board of Education is part of
the state’s education system because, even assuming that it is, Board
members are not employees in that system.
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Opinion of the Court
election” and that, “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].” The
district court therefore issued an order declaring SB 78
unconstitutional under article X, section 8 and enjoined the
implementation of SB 78. The State appealed.
¶6 We exercise jurisdiction under Utah Code section
78A-3-102(3)(j).
STANDARD OF REVIEW
¶7 We review constitutional interpretation issues for correctness,
granting no deference to the district court. Schroeder v. Utah Att’y
Gen.’s Office, 2015 UT 77, ¶ 16, 358 P.3d 1075. “A district court’s
interpretation of a statute is a question of law, which we . . . review
for correctness.” Harvey v. Cedar Hills City, 2010 UT 12, ¶ 10, 227 P.3d
256.
ANALYSIS
¶8 Both parties agree that the legislature has the authority to
prescribe election laws for the office of State Board of Education.
UTAH CONST. art. X, § 3. 6 The parties disagree, however, about
whether the election laws prescribed by SB 78 run afoul of article X,
section 8 of the Utah Constitution.
¶9 Appellees claim that article X, section 8’s language barring
“religious or partisan test[s] or qualification[s]” as a “condition of
employment . . . in the state’s education systems” forbids partisan
election of Board members. They contend that this prohibition is one
of the underlying intentions of article X, section 8, as supported by
the constitutional history associated with article X, section 8 and the
plain language of its text.
¶10 Appellees further contend that Board members are and have
been, at least since 1986, understood to be employed in the state’s
education systems. And as employees, they are subject to and
protected by article X, section 8, which bars “religious or partisan
test[s] or qualification[s]” as conditions of their employment.
Appellees read “partisan test or qualification” to encompass and
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6 Article X, section 3 of the Utah Constitution states in relevant
part: “The general control and supervision of the public education
system shall be vested in a State Board of Education. The
membership of the board shall be established and elected as
provided by statute.”
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include partisan elections. The district court agreed with appellees’
reading of the Utah Constitution and found SB 78 to be
unconstitutional and stayed its implementation.
¶11 This appeal therefore presents us with two questions. First,
we are asked to determine whether Board members enjoy
“employment . . . in the state’s education systems.” UTAH CONST.
art. X, § 8. Second, we are asked to determine whether a partisan
election is a “partisan test or qualification.” Id. Because we answer
the first question in the negative, we need not reach the second
question.
¶12 The district court concluded that article X, section 8 clearly
applies to Board members. We disagree. To begin with, in 1986, the
relevant timeframe, the citizens of Utah would not have understood
the term “employment” to include elected Board members. In
addition, although we have the final say as to questions of
constitutional law, we “apply a presumption of validity [to a
challenged statute] so long as there is a reasonable basis upon which
both provisions of the statute and the mandate of the constitution
may be reconciled.” Bennion v. ANR Prod. Co., 819 P.2d 343, 347
(Utah 1991) (citation omitted) (internal quotation marks omitted).
And here, appellees have not overcome the presumption.
Accordingly, we reverse the district court’s decision.
I. CONSTITUTIONAL INTERPRETATION FRAMEWORK
¶13 In interpreting the Utah Constitution, we seek to ascertain
and give power to the meaning of the text as it was understood by
the people who validly enacted it as constitutional law. See Neese v.
Utah Bd. of Pardons & Parole, 2017 UT 89, ¶ 95, 416 P.3d 663 (“We
agree with the dissent that originalist inquiry must focus on
ascertaining the ‘original public meaning’ of the constitutional
text.”). In this regard, we “ask what principles a fluent speaker of the
framers’ English would have understood a particular constitutional
provision to embody.” Id. ¶ 96. This does not entail merely
translating historical terms into “roughly equivalent contemporary
English.” Id. ¶ 98. It involves using all available tools—Black’s Law
Dictionary, corpus linguistics, and our examination of the “shared
linguistic, political, and legal presuppositions and understandings of
the ratification era.” Id.; see also Am. Bush v. City of S. Salt Lake, 2006
UT 40, ¶ 10, 140 P.3d 1235 (“[W]e recognize that constitutional
language . . . is to be read not as barren words found in a dictionary
but as symbols of historic experience illumined by the
presuppositions of those who employed them.” (second alteration in
original) (citation omitted) (internal quotation marks omitted)).
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Opinion of the Court
¶14 Here, we acknowledge that the text of article X, section 8
presents some surface opacity. But, as we detail below, our
examination of the text and historical understanding of the terms
included supports the State’s interpretation. We therefore hold that
the district court erred in finding that Board members held
“employment . . . in the state’s education systems.”
II. THE MEANING OF ARTICLE X, SECTION 8
A. Understanding and Defining “Employment”
¶15 The relevant language of article X, section 8 asks us to
explore what it means to be in a condition of “employment . . . in the
state’s education systems.” Because the meaning of the word
“employment” seems at first to be a straightforward definitional
question, we begin our inquiry there.
¶16 Both parties’ briefs are replete with definitions of
employment. Appellees would prefer to define employment to mean
“to make use of” or “to use or engage the services of.” They invite us
on a tour of Shakespearian usages of the term to demonstrate the
frequency of this definition’s use. 7 In this sense, Board members
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7Appellees’ brief details the use of “employment” in various
works of Shakespeare:
Thus, Malvolio, upon discovering the letter that would
gull him in his mistress’s garden, exclaims, “What
employment have we here?” Twelfth Night, Act 1, sc.
5, 1. 80. In his scene with the gravedigger, Hamlet says:
“The hand of little employment hath the daintier
sense.” Hamlet, Act 5, sc. 1, ls. 65-66. Made to be a fool
in the forest, Falstaff confesses: “See now how wit may
be made a Jack-a-Lent when ‘tis upon ill-employment.”
The Merry Wives of Windsor, Act 5, sc. 5, ls. 126-127.
Valentine asks the Duke for pardon of his exiled men:
“They are reformed, civil, full of good, and fit for great
employment, worthy Lord.” Two Gentlemen of
Verona, Act 5, sc. 4, ls. 154-155. And Bolingbroke
accuses Mobray [sic] to King Richard thus: “Look what
I speak, my life shall prove it true: That Mowbray hath
received eight thousand nobles in name of lendings for
your highness’ soldiers, the which he hath detained for
lewd employments, like a false traitor and injurious
villain.” Richard II, Act 1, sc. 1, ls. 87-91.
(continued…)
6
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would be employed in the state’s education systems because the
systems make use of and engage the services of Board members. We
have no doubt that the word employment includes and encompasses
this utility-based definition and can be used to connote the simple
usage of a person or thing. 8 However, despite the creativity of
Shakespeare—and this one, limited type of usage—the word
employment lends itself to multitudinous other applications.
¶17 The State supplies us with some of these additional
understandings and argues that employment means the “state of
being employed,” “normally on a day-to-day basis,” which signifies
“both the act of doing a thing and being under contract or orders to
do it.” This implies an understanding of the term rooted in one’s
experience as an employee and brings with it images of places of
work, salaried compensation, jobs, and bosses.
But see WILLIAM SHAKESPEARE, CYMBELINE, KING OF BRITAIN act 3,
sc. 5, ll. 2084–91 (Cloten requesting the services of Pisanio for pay
and under direction: “do me true service, undergo those
employments wherein I should have cause to use thee with a serious
industry, that is, what . . . I bid thee do, to perform it directly . . . thou
shouldst neither want my means for thy relief.” (emphases added));
WILLIAM SHAKESPEARE, THE TRAGEDY OF KING LEAR act 2, sc. 2,
ll. 1199–1202 (Kent imploring Cornwall not to punish a servant of the
King: “I serve the King; on whose employment I was sent to you.
You . . . show too bold malice against the grace and person of my
master . . . .” (emphasis added)); WILLIAM SHAKESPEARE, MUCH ADO
ABOUT NOTHING act 2, sc. 1, ll. 644–52 (Benedick offering his services
to Don Pedro: “Will your grace command me any service to the
world’s end? I will go on the slightest errand now . . . . You have no
employment for me?”).
8 Appellees also define the Board members’ employment
contextually by pointing out that they are “employed, as state
officers, to oversee and administer the education policies for our
state,” and that their services are rendered “in exchange for
monetary recompense.” Appellees go on to contend that elected
officials and bosses certainly can still be employees, and that there is
nothing mutually exclusive in the roles connoted by these terms.
Lastly, appellees point out that Board members are in a directed
relationship—they “are accountable to their true masters, the voting
public.” We do not contest these points but rather take a more
restrictive view of employment. See infra ¶¶ 18–38.
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Opinion of the Court
¶18 Although no one dictionary definition can be completely
authoritative, 9 we are satisfied that these multiple definitions have
fleshed out the bare dictionary meaning of the term. However,
dictionary definitions are not sufficiently dispositive in this case.
“When we speak of ordinary meaning, we are asking an empirical
question—about the sense of a word or phrase that is most likely
implicated in a given linguistic context.” Thomas R. Lee & Stephen
C. Mouritsen, Judging Ordinary Meaning, 127 YALE L.J. 788, 795 (2018).
We could rely on our linguistic intuition to rule one or more out. Our
intuition here is that to be employed in this context entails more than
just an engagement with a specific task or function. But “[o]ur
human intuition of ordinary meaning . . . is fallible.” State v.
Rasabout, 2015 UT 72, ¶ 54, 356 P.3d 1258 (Lee, A.C.J., concurring).
This case, furthermore, is not just about the word “employment.” We
must define the phrase “employment in” in the context in which it is
used in article X, section 8. And dictionaries cannot provide us with
this sort of contextual phrasal meaning.
¶19 We do, however, have a tool at our disposal that can help
overcome these shortcomings. That tool is corpus linguistics. See id.
¶ 57 (Lee, A.C.J., concurring) (“Instead of just relying on the limited
capacities of the dictionary or our memory, we can access large
bodies of real-world language to see how particular words or
phrases are actually used in written or spoken English. Linguists
have a name for this kind of analysis; it is known as corpus
linguistics.”). Here, corpus linguistics can aid our inquiry into
ordinary meaning beyond the assistance provided by dictionaries,
and can guide us in choosing between competing and compelling
definitions.
¶20 Corpus linguistics is an empirical approach to the study of
language in which we search large, electronic databases of naturally
occurring language. From these searches, we can draw inferences
about the ordinary meaning of language based on real-world
examples. See id. ¶¶ 57–63 (Lee, A.C.J., concurring) (providing
additional background on corpus linguistics). We do not share in the
opinion that corpus linguistics searches are a form of “scientific
research that is not subject to scientific review.” Id. ¶ 16; see also In re
Baby E.Z., 2011 UT 38, ¶ 19 n.2, 266 P.3d 702 (arguing against the
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9 “[T]here is no such thing as a ‘main’ or ‘primary’ dictionary
definition.” State v. Rasabout, 2015 UT 72, ¶ 50, 356 P.3d 1258 (Lee,
A.C.J., concurring).
8
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analytical or persuasive value of corpus searches). 10 Corpus
linguistics is more akin to a consistent and replicable search one may
conduct in a dictionary resource to ascertain the meaning of a word;
corpus linguistics may be used sua sponte in the same way a judge
may rely upon any definitional tools in ascertaining the meaning of
ordinary or technical terminology. As judges we may rely upon our
intuition in determining the meaning of ambiguous legal texts.
However, when appropriate, we may make use of corpus linguistics
to “check [our] intuition against publicly available means for
assessing the ordinary meaning of a statutory phrase.” Rasabout, 2015
UT 72, ¶ 56 (Lee, A.C.J., concurring). This case presents just such a
circumstance.
¶21 We consulted two databases to conduct our corpus
analysis—the Corpus of Contemporary American English (COCA)
and the Corpus of Historical American English (COHA). We
searched for the phrase “employment in.” And we limited our
searches to the years surrounding 1986—the year article X, section 8
was amended to include the language at issue. 11 When analyzing the
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10 This evolution and departure from our reasoning in Rasabout
and Baby E.Z. is consistent with judicial trends across the nation. See,
e.g., Carpenter v. United States, 138 S. Ct. 2206, 2238 n.4 (2018)
(Thomas, J., dissenting) (utilizing corpus linguistics); State v. Lantis,
No. 46171, 2019 WL 3979638, at *6 (Idaho Aug. 23, 2019) (using
corpus linguistics as additional empirical evidence of the meaning of
“disturbing the peace”); People v. Harris, 885 N.W.2d 832, 839 (Mich.
2016) (“The Corpus of Contemporary American English (COCA)
allows users to ‘analyze [] ordinary meaning through a method that
is quantifiable and verifiable.’” (alteration in original) (citation
omitted)). While the application of corpus linguistics to law has
limitations, it can be useful in some cases in determining the
common understanding of a word or phrase. It is wholly appropriate
to utilize in answering some questions of statutory and
constitutional interpretation. While we should still proceed
somewhat cautiously, there is no reason why this court should not
consider corpus linguistics and welcome parties to utilize it in briefs
just as readily as they would a dictionary.
11 Specifically, we limited our COCA search to the years 1990–
1994 and our COHA search to the years 1970–1999. COCA captures
contemporary usage of language and contains texts from 1990–2017.
It thus cannot provide us with examples of how the phrase
“employment in” was used in 1986. But we doubt that the ordinary
meaning of this phrase evolved in the time period surrounding the
(continued…)
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Opinion of the Court
results of our searches, we focused on examples that used the phrase
“employment in” in a context similar to that of article X—namely the
employment of people. This is one of the advantages of corpus
linguistics. It allows us to search for real-world usage of a word or
phrase in the appropriate linguistic context. See Lee & Mouritsen,
Judging Ordinary Meaning, supra, at 821–23. And here the relevant
context is the “employment” of individuals, as article X is speaking
of “employment” by individuals “in the state’s education systems.”
¶22 That kind of context cannot be derived from a dictionary.
You cannot look up “employment in” an organization by an
individual person in a dictionary. But you can get that kind of
contextual information from a corpus. And that’s what we’ve done
here. In looking at the corpus results, we looked for examples of
people having “employment in” something and determined what
sense of “employment” was being used—the broader utility-based
sense or the narrower job-related sense. Our searches reveal that the
phrase “employment in” almost exclusively refers to some kind of
legal, employment relationship. 12
¶23 Of the 257 hits produced by the COCA search, 232 referred to
a person(s) having “employment in” a job in a particular field, sector
of the economy, or geographic region, or at a particular time. Only
one hit referred to the broader services sense of “employment.” The
remainder of the hits were either inconclusive or did not refer to
people having “employment in” something.
¶24 Our COHA search produced similar results. Of the 107 hits,
ninety-four referred to a legal, employment relationship—to a
person having a job. None of the hits referred to the broader sense—
a person merely providing services for someone or something. The
remaining fifteen hits were either inconclusive or did not refer to
people having “employment in” something.
¶25 Our corpus analysis accordingly confirms our linguistic
intuition—that “employment in” in this context refers to some sort of
amendments to article X. Our COHA search helps confirm this
intuition.
12 The COCA and COHA interfaces allow you to save your
searches, enhancing transparency and reliability. Our searches are
saved at CORPUS OF CONTEMP. AM. ENGLISH, https://www.english-
corpora.org/coca/?c=coca&q=75264553 (last visited Sept. 5, 2019)
(COCA) and CORPUS OF HIST. AM . ENGLISH,
https://corpus.byu.edu/coha/?c=coha&q=72809944 (last visited
Sept. 5, 2019) (COHA), respectively.
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legal, employment relationship. And it does so “on the basis of a
transparent database that is publicly available, created by linguists,
and subject to replication by anyone seeking to confirm (or reject)
[our] analysis.” Rasabout, 2015 UT 72, ¶ 93 (Lee, A.C.J., concurring).
¶26 Having confirmed our initial take that employment entails
more than mere utility, we make use of several legal understandings
of the words employee, employer, and employment in our analysis.
“The starting point for most employee status analysis cases is the
‘common law right to control’ test . . . .” Mitchell H. Rubinstein,
Employees, Employers, and Quasi-Employers: An Analysis of Employees
and Employers Who Operate in the Borderland Between an Employer-and-
Employee Relationship, 14 U. PA. J. BUS. L. 605, 617 (2012) (citation
omitted) [hereinafter Rubinstein, Employees, Employers, and Quasi-
Employers]. This is a deceptively difficult test to apply because each
application depends upon the unique circumstances of the case. Id.The Supreme Court has held that, in the absence of a statutorily
provided definition of “employee,” this common law standard
should be the default. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S.
318, 323 (1992) (adopting a common law test for determining who
qualifies as an “employee” under ERISA in the absence of statutory
guidance). This “common law right to control” test is summarized
by the following nonexhaustive factor list:
(1) the hiring party’s right to control the manner and
means by which the product is accomplished; . . .
(2) the skill required; (3) the source of the
instrumentalities and tools; (4) the location of the work;
(5) the duration of the relationship between the parties;
(6) whether the hiring party has the right to assign
additional projects to the hired party; (7) the extent of
the hired party’s discretion over when and how long to
work; (8) the method of payment; (9) the hired party’s
role in hiring and paying assistants; (10) whether the
work is part of the regular business of the hiring party;
(11) whether the hiring party is in business; (12) the
provision of employee benefits; (13) and the tax
treatment of the hired party.
Rubinstein, Employees, Employers, and Quasi-Employers, supra, at 618
(alteration in original) (citation omitted).
¶27 Using this test solely for its guidance in helping us ascertain
the public meaning of employment, we see multiple factors
commensurate with the State’s suggested definition. Factors one,
four through nine, twelve, and thirteen all pertain to vocational
details and to notions of bosses, workers, employment location,
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RICHARDS v. COX
Opinion of the Court
authoritative direction, and emolument relationships. This suggests
that the term employee, when describing one in a condition of
employment, is used in the context of workplace relations and tasks
above and beyond a mere abstract use or function.
¶28 Additionally, some courts have endorsed an “economic
realities test” to determine employment status. See, e.g., Nowlin v.
Resolution Tr. Corp., 33 F.3d 498, 505 (5th Cir. 1994) (“The economic
realities test turns on whether the employee, as a matter of economic
reality, is dependent upon the business to which he renders
service.”). This test also employs several factors in its exploration of
the word employee:
(1) the degree of control exercised by the alleged
employer; (2) the extent of the relative investments of
the worker and the alleged employer; (3) the degree to
which the worker’s opportunity for profit or loss is
determined by the alleged employer; (4) the skill and
initiative required in performing the job; and (5) the
permanency of the relationship. No single factor is
determinative. Rather each factor is a tool used to
gauge the economic dependence of the alleged employee,
and each must be applied with this ultimate concept in
mind.
Rubinstein, Employees, Employers, and Quasi-Employers, supra, at 626
(emphasis added) (citing Hopkins v. Cornerstone Am., 545 F.3d 338,
343 (5th Cir. 2008)).
¶29 Many courts apply some hybridized form of both tests that
centers on the notions of control and economic dependency. Id.(“The hybrid test combines both the common law and economic
realities tests and attempts to steer a middle ground. There has been
widespread adoption of this test . . . .” (citation omitted)). Here, we
again see the central role that control and direction play in guiding
and defining these factors. Additionally, the economic dependence
elements strongly favor the State’s definition and indicate that the
scope of the words “employment” and “employee,” in a legal sense,
extends beyond mere use and into the realm of gainful employment
in a vocational context.
¶30 When at least partially informed by the legal definitions
available, the most relevant public understanding of employment is
therefore, in our view, “[t]he relationship between master and
servant . . . [w]ork for which one has been hired and is being paid by
an employer.” Employment, BLACK’S LAW DICTIONARY (11th ed. 2019).
The common understanding of the word “employment” implies an
additional step beyond mere idle fancy or hobbyist pursuit into
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some form of employee–employer relationship. Used in this sense,
we have found two definitions of “employee” particularly helpful:
(1) “one employed by another [usually] for wages or salary and in a
position below the executive level,” Employee, WEBSTER’S NEW
COLLEGIATE DICTIONARY 373 (1973) (emphasis added), and
(2) “[s]omeone who works in the service of another person (the
employer) under an express or implied contract of hire, under which
the employer has the right to control the details of work
performance,” Employee, BLACK’S LAW DICTIONARY (11th ed. 2019).
¶31 The need for such myriad definitions and artful tests to fully
grasp the public meaning of the words employment and employee
compels us to accede that, despite some convincing evidence to the
contrary, some ambiguity as to what was understood by the term
“employment in” at the time of drafting and the passage of article X
remains possible. Because we are not presented with, and can locate
no direct definitional guidance as to, the position of Board members
within or outside of the state’s education systems, we further
elucidate the meaning of the relevant texts as informed by relevant
constitutional and statutory provisions and their history.
B. Utah Constitutional History
¶32 The original text of the Utah Constitution article X, section
12—the ratification-era version of today’s article X, section 8—did
not include Board members. See UTAH CONST. art. X, § 12 (1896)
(prohibiting any “religious []or partisan test or qualification . . . as a
condition of admission, as teacher or student, into any public
educational institution of the State”(emphasis added)). However, in
1986, article X was amended to forbid any “religious or partisan test
or qualification . . . as a condition of employment, admission, or
attendance in the state’s education systems.” UTAH CONST. art. X, § 8
(emphasis added). Appellees ask us to understand that the change
from “teacher or student” to “condition of employment” was meant
to broaden the provision’s reach to include Board members. This we
cannot do. Although not dispositive, the historical evidence provides
us with no reason to believe the change in language supports this
reading.
¶33 We simply cannot find any cause to believe the language
regarding “condition of employment” was understood to apply to
Board members. In fact, all evidence we have been presented with, if
anything, cuts against this reading. Until 1986, there was no doubt
that the relevant constitutional language did not apply to Board
members. As the State notes, in 1982 and 1984, the Utah
Constitutional Revision Commission (CRC) considered various
changes to article X. The CRC proposed altering the old language,
13
RICHARDS v. COX
Opinion of the Court
which read “admission, as teacher or student” and “public
educational institution of the State,” into the modern provisions,
which read “employment, admission, or attendance in the state’s
education systems.” UTAH CONSTITUTIONAL REVISION COMM’N,
REPORT OF THE CONSTITUTIONAL REVISION COMM’N SUBMITTED TO THE
GOVERNOR AND THE 45TH LEGISLATURE OF THE STATE OF UTAH 57
(1984). In the CRC’s own words, “[t]he only difference between the
[past] language and the commission’s proposal is in the use of the
words ‘the state’s education systems’ in place of ‘any public
educational institution of the state.’ . . . It is a language change only,
and not intended to have any policy effect.” Id. We see no reason to
believe the people of Utah ever understood this language differently.
¶34 Finally, the language of article X, section 8 seems to
foreclose appellees’ definition of employment. We read section 8 as a
list of associated terms to which the religious or partisan test
prohibition applies: “employment, admission, or attendance.” Under
the interpretive canon noscitur a sociis, we read associated words as
bearing similar contextual meanings to each other. See ANTONIN
SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF
LEGAL TEXTS 195 (2012) (explaining that “words grouped in a list
should be given related meanings” (citation omitted)). Applying this
canon, we define employment contextually, as in some way related
to the words admission and attendance. Both admission and
attendance evoke a physical presence and occupation within schools
and remind one of teachers and students—and perhaps janitors—but
never Board members. If employment is read as similar to and
associated with admission and attendance, it does not remind of or
encompass Board members.
C. Statutory and Case Law Usage of Employment
¶35 Outside of the Utah Constitution, several Utah Code
provisions separate board officials from the ranks of employees,
albeit in different contexts. Although not dispositive in this case, it is
relevant that the concept of a board of directors harkens to corporate
law and boards of corporate control. Here, there is no ambiguity: the
Utah Revised Business Corporation Act explicitly omits board
members from the definition of employees of a corporation while, at
the same time, designating officers as employees. UTAH CODE
§ 16-10a-102(18) (“‘Employee’ includes an officer but not a
director . . . .”) (emphasis added). Indeed, the Model Business
Corporation Act echoes this standard. MOD. BUS. CORP. ACT § 1.40(8)
(2003) (AM. BAR ASS’N, amended 2016) (“‘Employee’ includes an
officer but not a director.”). Consistent with our examination of the
everyday usage of the word and common parlance, the corporate
understandings of employment also do not include board members.
14
Cite as: 2019 UT 57Opinion of the Court
¶36 Additionally, the State calls our attention to the Election
Code and the Utah State Personnel Management Act, which state,
respectively, that “[a] State Board of Education member may not . . .
also serve as an employee of the State Board of Education,” UTAH
CODE § 20A-14-103(4), and that Board members are not career service
employees in the classified service, UTAH CODE § 67-19-3(3), (5),
(10). 13
¶37 Several other courts have dealt with the issue of defining
what is meant by “employment” and have provided helpful
guidance. “The normal indicia of the employer-employee
relationship . . . are contract, control, and compensation.” Am. Cas.
Co. of Reading, Pa. v. Wypior, 365 F.2d 164, 167 (7th Cir. 1966); see also
Bluestein v. Cent. Wis. Anesthesiology, S.C., 769 F.3d 944, 952 (7th Cir.
2014) (determining that the common-law element of control is
demonstrated by six nonexclusive factors, including “[w]hether the
organization can hire or fire the individual or set the rules and
regulations of the individual’s work; [w]hether and, if so, to what
extent the organization supervises the individual’s work; [w]hether
the individual reports to someone higher in the organization;
[w]hether and, if so, to what extent the individual is able to influence
the organization; [w]hether the parties intended that the individual
be an employee, as expressed in written agreements or contracts; and
[w]hether the individual shares in the profits, losses, and liabilities of
the organization.” (citing Clackamas Gastroenterology Assocs., P.C. v.
Wells, 538 U.S. 440, 449–50 (2003))); Alexander v. Rush N. Shore Med.
Ctr., 101 F.3d 487, 492 (7th Cir. 1996) (developing a five-factor test to
determine whether an individual is an employee or independent
contractor).
_____________________________________________________________
13 We have found a few appellate courts that have spoken directly
on this issue. See, e.g., Mitchell v. Pruden, 796 S.E.2d 77, 81 (N.C. Ct.
App. 2017) (“A public official is one who exercises some portion of
sovereign power and discretion, whereas public employees perform
ministerial duties.” (citation omitted) (internal quotation marks
omitted)); People v. Cleland, 23 N.Y.S.3d 556, 559 (Cty. Ct. 2015) (“The
duties of a public official involve some exercise of sovereign
power—those of a public employee do not.”). The concurrence
mistakes our citing of this case law, which speaks on the topic of
employment status, as an announcement that only lower-level,
ministerial workers can be employees. Infra ¶ 63. We do no such
thing. We are merely, as part of our cumulative analysis, suggesting
that other jurisdictions have pointed in a clear direction.
15
RICHARDS v. COX
Opinion of the Court
¶38 This general pattern of common usage suggests that Board
members are separate from employees and consistently applies the
State’s understanding of the term employment as involving some
measure of being under direction and control. Although Board
members receive compensation and benefits for their services, they
have no masters within the state’s education systems. To apply the
Seventh Circuit’s standard, they are not under contract with the
state’s education systems, they have no controllers within the state’s
education systems, and their compensation is remitted not by the
state’s education systems, but by Utah’s Department of
Administrative Services. Neither are Board members employees “in
the state’s education systems” in that they are accountable to their
constituents. Although constituents elect Board members, they can’t
then hire, fire, or supervise Board members after election. In the end,
Board members are representatives of, rather than employees of,
their constituents.
D. Presumption of Legislative Validity
¶39 If, despite the hefty weight of support for the State’s
position, we were to continue to acknowledge a certain level of
ambiguity in the phrase “employment . . . in the state’s education
systems,” as far as what may have been understood by the 1986
amendments, we still resolve this case in the State’s favor under the
presumption that legislative enactments are assumed to be
constitutional. 14 “[W]hen confronted with a constitutional challenge
to a statute, we presume the statute to be constitutional, resolving
any reasonable doubts in favor of constitutionality.” Univ. of Utah v.
Shurtleff, 2006 UT 51, ¶ 30, 144 P.3d 1109. Additionally, other courts
have held that if a constitutional provision is ambiguous, the
legislature, as a coequal branch of the government, is entitled to
some deference in their interpretation of the constitutional text. See
Greene v. Marin Cty. Flood Control & Water Conservation Dist., 231 P.3d
350, 358 (Cal. 2010) (“[O]ur past cases establish that the presumption
_____________________________________________________________
14 The concurrence seems to misunderstand this conclusion. Infra
¶ 52. The presumption of validity is far from the “linchpin” of our
decision but is rather another factor in a long line of analysis
trending towards the State’s position. It is only after an exhaustive
exploration of multiple tests, definitions, and standards—the great
majority of which lend credence to the State’s position—that we add
the insight that, because no standard we have examined suggests
otherwise, any remaining uncertainty should be resolved in light of
the presumption of legislative validity.
16
Cite as: 2019 UT 57Opinion of the Court
of constitutionality accorded to legislative acts is particularly
appropriate when the Legislature has enacted a statute with the
relevant constitutional prescriptions clearly in mind. In such a case,
the statute represents a considered legislative judgment as to the
appropriate reach of the constitutional provision. Although the
ultimate constitutional interpretation must rest, of course, with the
judiciary, a focused legislative judgment on the question enjoys
significant weight and deference by the courts.” (alteration in
original) (citations omitted) (internal quotation marks omitted)); see
also Nelson v. Miller, 170 F.3d 641, 652 (6th Cir. 1999) (“[T]he
Michigan Supreme Court itself requires that great deference be given
to the legislature’s interpretation of state constitutional provisions
that confer upon the legislature the affirmative duty to do
something.”); Nat’l Football League v. Governor of State of Del., 435
F. Supp. 1372, 1384 (D. Del. 1977) (“Delaware courts subscribe to the
rule of construction that when terms of the Constitution are
ambiguous, the interpretation of the legislature is entitled to
deference.”).
¶40 Traditionally, we invoke the constitutional avoidance canon
in situations in which the questioned statutory language presents
two possible meanings, one of which may be unconstitutional. In
such a circumstance, it “shows proper respect for the legislature” to
assume it meant, and so chose, the interpretation that is in harmony
with the constitution. Utah Dep’t of Transp. v. Carlson, 2014 UT 24,
¶ 23, 332 P.3d 900. Although this case forces us to first expound
upon the constitutional language of article X, section 8, we still
assume that the legislature “prefers not to press the limits of the
Constitution in its statutes.” Id. (citation omitted) (internal quotation
marks omitted). Of course, there is a limit: if the legislature has erred
in its understanding of the constitution, it is our right and duty to
intervene. We do not abrogate our duty to interpret and apply the
mandates of the constitution. Marbury v. Madison, 5 U.S. 137, 177
(1803) (“It is emphatically the province and duty of the judicial
department to say what the law is.”). But here, the legislature passed
a statute believing Board members to be exempt from article X,
section 8 under their reading of the Utah Constitution. We see no
real proof that this reading was incorrect and therefore defer to the
legislature’s interpretation of article X, section 8. 15
_____________________________________________________________
15 The concurrence criticizes us for not more specifically defining
the standard of review when applying this presumption. Infra ¶ 47.
But we see no reason to expand on what we have already said on
this topic. See supra ¶ 39. In making this election, we note that the
(continued…)
17
RICHARDS v. COX
Opinion of the Court
CONCLUSION
¶41 Article X, section 8 of the Utah Constitution forbids any
“partisan test or qualification” to be applied as “a condition of
employment . . . in the state’s education systems.” Although some
ambiguity may exist regarding the Board members status as
employees, the Utah Constitution—both in the original 1896
enactments and the 1986 amendments pertaining to the organization
and definition of the “state’s education systems”—omits Board
members from being in a condition of employment in the state’s
education systems. We reject the policy arguments against SB 78 as
outside the scope of our judicial role. We reverse the district court
and reinstate SB 78.
presumption of legislative validity is not a factored test or a statute
to be interpreted—it is a decisional framework that guides and has
guided judicial review of legislative enactments. And as we clearly
stated, “if the legislature has erred in its understanding of the
constitution, it is our right and duty to intervene.” Supra ¶ 40. It is
our prudence that respects the legislature as a coequal branch of
government and restrains our immense power to strike down
legislation. This is all that is meant by our presumption.
18
Cite as: 2019 UT 57LEE, A.C.J., concurring in part and in judgment
ASSOCIATE CHIEF JUSTICE LEE, concurring in part and concurring
in the judgment:
¶42 This case presents important questions of interpretation
under article X, section 8 of the Utah Constitution. That provision
states that “[n]o religious or partisan test or qualification shall be
required as a condition of employment, admission, or attendance in
the state’s education systems.” UTAH CONST. art. X, § 8. The plaintiffs
in this case challenge a statute, referred to herein as SB 78, under this
provision. SB 78 provides for partisan election of members of the
State Board of Education. The plaintiffs assert that a partisan election
amounts to a “partisan test” and that members of the Board have
“employment . . . in the state’s education systems.”
¶43 A threshold question is the meaning of the constitutional
phrase, “employment . . . in the state’s education systems.” The
plaintiffs cite dictionary definitions of “employ” that encompass the
mere provision of service to something or someone. And they
contend that Board members have “employment” in the “state’s
education systems” because they make core contributions to those
systems. The lieutenant governor’s view of “employment” is
different. He says that this is a legal term referring to a formal
relationship with an employer. And he contends that Board
members are not legally employed by the “state’s education
systems” because they have no employment relationship with a
school or other traditional component of our education system.
¶44 The majority rightly sides with the lieutenant governor on
this question. And it does so, to its credit, by acknowledging some
shortcomings of dictionaries in resolving the sort of question
presented here, and by turning to corpus linguistic analysis to fill in
the gaps. Supra ¶¶ 18–25. I endorse this move wholeheartedly. 1 And
I concur in the court’s opinion to the extent it relies on corpus
linguistic analysis in support of the conclusion that a person has
“employment in” an organization only if there is a formal legal
relationship between a worker and an employer—the mere
provision of some sort of service or contribution to an organization is
insufficient. See supra ¶ 25.
_____________________________________________________________
1 State v. Rasabout, 2015 UT 72, ¶¶ 46–50, 57–63, 356 P.3d 1258(Lee, A.C.J, concurring in part and concurring in the judgment)
(highlighting shortcomings of dictionaries in answering questions of
ordinary meaning of terms and phrases and proposing the use of
corpus linguistic analysis to fill in the gaps); Thomas R. Lee &
Stephen C. Mouritsen, Judging Ordinary Meaning, 127 YALE L.J. 788,
(continued…)
19
RICHARDS v. COX
LEE, A.C.J., concurring in part and in judgment
¶45 That conclusion resolves a threshold question of ambiguity
under article X, section 8 of the Utah Constitution—as to the
meaning of the phrase “employment . . . in.” But it does not resolve
the case before us. We still have to decide whether members of the
State Board of Education qualify as having “employment” in some
entity, and if so whether they have “employment . . . in the state’s
education systems.” The majority seeks to sidestep these issues. It
first identifies a range of different tests that might dictate whether
someone has “employment” in a given organization and then by
concluding that there is a degree of ambiguity as to whether
members of the Board could be deemed to be employed in “the
state’s education systems.” 2 And it asserts that this ambiguity
sustains a decision to uphold the constitutionality of SB 78 under the
“presumption that legislative enactments are assumed to be
constitutional.” Supra ¶ 39.
¶46 I write separately because I have some trouble with the
court’s assertions of ambiguity as a basis for resolving this case. I
again agree with the court’s threshold interpretation of the scope of
the meaning of “employment.” But that determination is not
sufficient to resolve the case. And the court falls short in its further
attempts to identify a clear basis for its disposition.
¶47 In my view the majority opinion falls short in three respects.
First, the majority never articulates a standard of deference under its
stated presumption of constitutionality. It simply announces the
presumption and notes that it calls for a measure of deference. In
applying the presumption and citing cases in support of it, the court
effectively identifies a wide range of different levels of deference.
This is also problematic. Without a stated standard of deference we
cannot decide whether there is an “ambiguity” sufficient to sustain a
presumption of constitutionality.
795, 830–36 (2018) (expanding upon and explaining the role for
corpus linguistics in ordinary meaning analysis); Thomas R. Lee &
James C. Phillips, Data-Driven Originalism, 167 PENN. L. REV. __
(forthcoming) (extending the use of corpus linguistic analysis to
constitutional interpretation).
2 Elsewhere the majority seems to suggest that members of the
Board may not have “employment” with any organization at all. See
supra ¶ 38 (suggesting that Board members “are separate from
employees”).
20
Cite as: 2019 UT 57LEE, A.C.J., concurring in part and in judgment
¶48 Second, the majority never articulates a governing standard
for judging whether someone would qualify as having “employment
. . . in” an organization. It just cites a range of standards and says
that means there is ambiguity. Without a stated standard I do not see
how we can judge whether a person could be deemed to have
“employment . . . in” a given organization (or even how much
ambiguity there is in answering that question). 3 I concede that the
question of the appropriate standard may be difficult to fully resolve
on the briefing and record before us. But we need to at least define
the standard we would use to determine whether Board members
have an “employment” relationship with some entity before we can
conclude that there is ambiguity sufficient to turn to a presumption
of constitutionality.
_____________________________________________________________
3 The majority seeks to avoid this problem by insisting that it is
“expressly conclud[ing] that Board members do not hold
employment in” any organization. Supra ¶ 3 n.5. But the court never
follows through on this promised basis for its decision. It never
commits itself to a test for judging whether a person has
“employment in” an organization—preferring instead to identify
“myriad definitions and artful tests” that could be controlling. Supra
¶ 31. And without a stated standard for judging a person’s
employment status, the court cannot claim to be “expressly
conclud[ing] that Board members do not hold employment in” any
organization. At most it is “suggest[ing] that Board members” may
be “separate from employees”—under a standard that will have to
be spelled out in a later case. Supra ¶ 38. This is not an express
holding. It is the assertion of a right to decide this case without
actually deciding anything.
21
RICHARDS v. COX
LEE, A.C.J., concurring in part and in judgment
¶49 Third, the majority never examines the question of what
qualifies as a part of “the state’s education systems.” This is a crucial
question. Even though there may be some ambiguity about whether
members of the Board of Education have “employment” in some
state body, I think it’s clear that they do not have “employment . . . in
the state’s education systems.” 4 This becomes clear once we define
what constitutes “the state’s education systems”—in my view a clear
reference to schools, universities, or related institutions that directly
provide education to students. I would resolve the case on this
ground. Because Board members have no formal legal relationship
with a school or related institution, I would hold that SB 78 raises no
constitutional problem and thus that there is no need to fall back on
a presumption of constitutionality. I explain the basis for this
conclusion below, after first outlining in more detail the concerns
that I have with the majority opinion.
I
¶50 The majority hangs its hat on an ambiguity in the meaning
of the notion of a person’s “employment” in the “state’s education
systems.” It cites a series of different tests for assessing a person’s
employment relationship, identifies a “general pattern” in these
tests, and ultimately concludes that it is not clear whether “Board
members” have an employment relationship “with the state’s
education systems” under the governing tests. Supra ¶¶ 26–30, 37–
38. In light of these ambiguities, the court falls back on a
presumption of constitutionality, holding that SB 78 withstands
constitutional scrutiny because there is a degree of ambiguity in
whether Board members are people who have “employment” in the
“state’s education systems.” Supra ¶¶ 39–40.
_____________________________________________________________
4 The majority is wrong to say that the meaning of “employment
in” is “irrelevant” to my approach. Supra ¶ 3 n.5. My inquiry
requires at least a threshold decision on whether “employment” is
used in the broad sense of “make use of” or “use or engage the
services of,” as posited by the appellees in this case. Board members
surely provide some service to our state’s education systems, so we
cannot resolve the constitutional question presented without
deciding whether “employment in” is used in this broad, colloquial
sense. That’s why I have concurred in the majority’s analysis of that
question—and commended its use of corpus linguistics in the course
of its assessment of that question.
22
Cite as: 2019 UT 57LEE, A.C.J., concurring in part and in judgment
¶51 I have some trouble with this line of analysis. I find too
much ambiguity in the court’s assertion of ambiguity—or, in other
words, insufficient transparency in the court’s articulation of (a) the
degree of ambiguity sufficient to trigger deference to the legislature,
(b) the standard that would apply in determining whether a Board
member has an “employment” relationship, and (c) what counts as
part of the “state’s education systems.” I highlight each of these
concerns below, along with some thoughts on how I would
approach each issue.
A
¶52 The linchpin of the court’s opinion is the presumption of
constitutionality. 5 But the presumption is not articulated with any
specificity. Nowhere does the court identify the degree of ambiguity
that is sufficient to trigger the presumption of constitutionality, or, in
other words, the level of deference we owe to the legislature.
¶53 At one point the majority says that all “reasonable doubts”
should be resolved in favor of constitutionality. Supra ¶ 39. But the
court never seeks to define what we mean by a “reasonable doubt.”
And it compounds the confusion by citing cases that call for
deference ranging from “some deference” on one hand to “great
deference” or “significant . . . deference” on the other. Supra ¶ 39.
The court’s ultimate holding seems to turn on yet another standard.
In upholding SB 78 the majority says that there is “no real proof”
that the lieutenant governor’s view of the statute “was incorrect.”
Supra ¶ 40.
_____________________________________________________________
5 The majority bristles at the term “linchpin.” Supra ¶39 n.14. But
its response highlights the pivotal role of the presumption in the
court’s analysis. I get that the court has explored a series of “tests,
definitions, and standards,” the “majority of which lend credence to
the State’s position.” Id. And I appreciate the fact that the
presumption of constitutionality is just a “factor in a long line of
analysis trending towards the State’s position.” Id. But all of that just
underscores my point. The majority has declined to commit itself to
a definitive basis for its decision. And in the absence of such a firm
basis, it is the presumption of constitutionality that is ultimately
decisive. See Univ. of Utah v. Shurtleff, 2006 UT 51, ¶ 30, 144 P.3d 1109(explaining that we turn to the presumption only to resolve
“reasonable doubts” about the constitutionality of a statute).
23
RICHARDS v. COX
LEE, A.C.J., concurring in part and in judgment
¶54 I am uncomfortable with this level of imprecision. Without a
clear statement of the standard of deference we owe to the
legislature we open the door to the risk of arbitrary decision-making.
And we deprive the parties of a clear statement of the real basis for
our decision.
¶55 If this case turned on a statement of the applicable standard
of deference I would press for a clarification of the governing
standard. For reasons stated below, however, I do not think this case
turns on a precise statement of the presumption of constitutionality.
Instead I think we can resolve this case by concluding that members
of the Board of Education are not part of the “state’s education
systems.” I just flag this issue to highlight the need for us to reach it
in some future case.
B
¶56 The majority also stops short of articulating a standard for
assessing the existence of an “employment” relationship. It takes a
step in the right direction in concluding that “employment” under
Article X involves more than a vague contribution or provision of
service. See supra ¶ 25. But the conclusion that the constitutional
reference to “employment” in the state’s education system requires
the existence of a formal legal relationship still leaves open the
question of what it takes to establish such a relationship. And the
court never answers that question. It never establishes a governing
test for assessing the existence of an employment relationship.
Instead it cites a range of possibly applicable legal standards—
“myriad definitions” of the notion of employment and a series of
“artful tests” for assessing whether there is an employment
relationship. Supra ¶¶ 26–31. The failure to pin down a legal
standard, moreover, is cited as the basis for the court’s determination
of ambiguity—ambiguity sufficient to sustain deference to the
legislature. See supra ¶ 31 (citing the existence of “myriad definitions
and artful tests” as a basis for the conclusion that there is ambiguity
as to the meaning of the constitutional language).
24
Cite as: 2019 UT 57LEE, A.C.J., concurring in part and in judgment
¶57 This too is problematic. I don’t think we can say that there is
“ambiguity as to what was intended by the term employment”
because we stop short of identifying a controlling legal standard for
the term “employment.” The court never says it is impossible to
articulate a governing standard of “employment,” or that we can’t
decide whether Board members have an employment relationship
with the “state’s education systems.” It just says that this area of law
is a difficult one, and that the employment status of Board members
is unclear. Fair enough. But the fact that employment status is often
unclear doesn’t mean that it is necessarily unclear here. And I don’t
think we can say that the question of the employment status of
Board members is a matter of significant ambiguity until we do our
level best to articulate a governing legal standard.
¶58 The court takes a step in that direction in citing a common
law “right to control” test that incorporates multiple factors. See
supra ¶ 26 (citing Mitchell H. Rubinstein, Employees, Employers, and
Quasi-Employers: An Analysis of Employees and Employers Who Operate
in the Borderland Between an Employer-and-Employee Relationship, 14 U.
PA. J. BUS. L. 605, 617 (2012)). It notes that this test has been viewed as
a “default” standard that applies “in the absence of a statutorily
provided definition of ‘employee.’” Supra ¶ 26 (citing Nationwide
Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992)). Yet the court stops
short of embracing this test as the governing standard for
“employment” under the Utah Constitution. Instead it states that
“some courts have endorsed an ‘economic realities test’” that is
aimed at assessing the “economic dependence of the alleged
employee” on the employer, supra ¶ 28 (quoting Rubinstein, supra, at
626) (citing Nowlin v. Resolution Tr. Corp., 33 F.3d 498, 505 (5th Cir.
1994)), and that others “apply some hybridized form of both tests
that centers on the notions of control and economic dependency,”
supra ¶ 29.
¶59 Ultimately, the majority declines to select a test to guide the
inquiry into employment status under the Utah Constitution. It just
notes “the central role that control and direction play in guiding and
defining” the inquiry, while also indicating that “economic
dependence” is likewise a significant consideration. Supra ¶ 29. And
it proceeds to cite provisions of the Utah Code that exclude members
of a board of directors (but not officers) “from the definition of
employees of a corporation.” Supra ¶ 35. In various places the court
also alludes to the idea that a person who exercises “official”
discretion or “sovereign” power may not qualify as an employee,
suggesting that “employment” is something done by more
“ministerial” workers. Supra ¶ 36 n.13.
25
RICHARDS v. COX
LEE, A.C.J., concurring in part and in judgment
¶60 Despite the absence of any controlling legal test the court
nonetheless suggests that Board of Education members may be
“separate from employees” under the “general pattern of common
usage” of the legal notion of “employment.” Supra ¶ 38. It bases that
conclusion on a series of propositions: Board members “have no
masters within the state’s education systems,” “they are not under
contract with the state’s education systems,” “they have no
controllers within the state’s education systems,” and “their
compensation is remitted not by the state’s education systems but by
Utah’s Department of Administrative Services.” Supra ¶ 38. This
conclusion is hedged by the ultimate assertion of “a certain level of
ambiguity” on the question whether Board members qualify as
having employment in the state’s education systems. But the above
premises seem to be the central grounds for the majority’s
determination of ambiguity.
¶61 I disagree with this mode of analysis. I cannot see how we
can state grounds for a possible conclusion that Board members are
not employees without first making an attempt at a standard for
judging whether they are employees. The court effectively alludes to
a possible standard in several places in the opinion. But without a
statement of a governing standard—or at least the minimum criteria
for employment status—I do not see how we can say whether Board
members can qualify, or even whether there is ambiguity as to
whether they qualify.
¶62 I would at least attempt to identify some minimal criteria for
employment status. And I would then seek to apply them to the facts
of the case to determine whether Board members qualify.
26
Cite as: 2019 UT 57LEE, A.C.J., concurring in part and in judgment
¶63 The court goes astray, in my view, in suggesting one
possible criterion—that only lower-level, ministerial workers can
qualify as having “employment” in an organization. See supra ¶ 36
n.13. 6 I don’t doubt that we sometimes speak of “employees” as
those occupying lower-level, ministerial positions. We use the term
in that sense when we are distinguishing “employees” from
“management,” or the like. In that sense, moreover, I don’t doubt
that Board members are not employees—they are not ministerial
workers but the ultimate in upper-level management. Yet I’m not
comfortable concluding that they therefore cannot qualify as having
“employment” in any organization. Workers who fulfill upper-level
management roles and thus do not report to (nor are controlled by)
any other individuals seem nonetheless to qualify as having
“employment” in the sense that seems relevant here—in that they
are not outsiders with an independent contractor status. The
majority’s own analysis suggests as much. At one point, the court
cites the Utah Revised Business Corporation Act, which explicitly
designates corporate officers as employees. UTAH CODE § 16-10a-
102(18). And yet officers who orchestrate the corporation’s
operations and are not subject to day-to-day control by other
individuals are certainly not lower-level, ministerial workers. So I
don’t think this criterion is sufficient. I don’t think it tells us that
Board members cannot be viewed as having “employment” in any
organization.
¶64 For these reasons I think we need to identify a governing
standard before opining on whether Board members have
“employment . . . in” some state entity. I concede that the briefing
and arguments before us do not point clearly to a single standard.
But I don’t think the solution to this problem is to cite a point of
ambiguity and turn to a presumption of legislative validity. See supra
¶¶ 31, 39. We can and should call for supplemental briefing if we
believe we need help deciding what standard controls here.
_____________________________________________________________
6 The majority insists that its mention of this criterion is not
meant to serve as “an announcement that only lower-level,
ministerial workers can be employees.” Supra ¶ 36 n.13. But this
criterion is still part of its “cumulative analysis.” Supra ¶ 36 n.13.
And for that reason I remain troubled by the majority’s citation to
the line of cases supporting the proposition that only public
employees—not public officials—perform ministerial duties.
27
RICHARDS v. COX
LEE, A.C.J., concurring in part and in judgment
¶65 I see no need to do that here, however. We can avoid this
question if we can conclude that Board members have no legal
relationship with an entity that is part of the “state’s education
systems.” This highlights a final concern with the majority opinion.
C
¶66 Members of the Board of Education may well have
employment somewhere within the state government. The majority
never says otherwise. Instead its analysis is focused on the lack of
control by or a contract or compensation from “the state’s education
systems.” See supra ¶ 38.
¶67 This underscores my final concern: The court nowhere seeks
to define “the state’s education systems.” And without a definition
of that term, there is no logical way for the court to conclude that the
undefined “systems” do not compensate, contract with, or control
the members of the Board.
¶68 The majority seems to be suggesting that Board members
may not qualify as having employment with any entity—even the
state government in general. I’m skeptical of that proposition for
reasons noted above. See supra ¶ 63. But the court should openly
embrace this premise if that is the basis for its decision. Without such
a premise the court’s opinion seems to be missing a step. We cannot
properly say that “the state’s education systems” do not compensate,
control, or contract with members of the Board unless we define “the
state’s education systems.”
¶69 For the above reasons I do not think the majority has
identified an adequate basis for resolution of this case. I concur in the
judgment of the court, however, because I agree with the threshold
premise that “employment” requires a formal legal relationship with
an employer and because I conclude that members of the Board of
Education have no such relationship with “the state’s education
systems.” I reach that conclusion because I conclude that the Board
of Education is not part of “the state’s education systems” as that
term is used in the Utah Constitution. 7
_____________________________________________________________
7 The majority is skeptical of this approach and conclusion. It
states that it “cannot get on board with [my] approach” because my
approach “requires us to declare that the State Board of Education
. . . is not a part of the state’s education systems.” Supra ¶ 3 n.5. Yet
the majority offers no constitutional analysis to give credence to its
concern. It makes no attempt to engage with the constitutional text
and it offers no response to any of the points set forth in my opinion.
Instead it just proffers a gut-level intuitive objection—a bald
(continued…)
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Cite as: 2019 UT 57LEE, A.C.J., concurring in part and in judgment
¶70 Article X, section 1 says that “[t]he Legislature shall provide
for the establishment and maintenance of the state’s education
systems.” And the only entities it lists as included in the “state’s
education systems” are a “public education system” and a “higher
education system.” Section 2 of article X then goes on to provide that
“[t]he public education system shall include all public elementary
and secondary schools and such other schools and programs as the
Legislature may designate,” and that the “higher education system
shall include all public universities and colleges and such other
institutions and programs as the Legislature may designate.” So all
the listed entities that are part of the “state’s education systems” are
schools, colleges, and universities.
assertion that “the head of much of the state’s education systems”
must be “a part of the state’s education systems.” Supra ¶ 3 n.5. But
this falls short in at least two respects.
First, it is circular. The majority is in no position to claim that the
State Board of Education is “the head of much of the state’s
education systems” without first defining what constitutes “the
state’s education systems.” Second, the simple answer to the
majority’s concern is that the text of the constitution defines “the
state’s education systems” to the exclusion of the State Board of
Education. I have laid out a basis for that conclusion above, and the
majority has offered no opposition to my analysis. Perhaps my
reading doesn’t align with the majority’s gut intuition. But that is not
and cannot be the relevant constitutional inquiry. See supra ¶ 13
(citing Neese v. Utah Bd. of Pardons & Parole, 2017 UT 89, ¶ 95, 416
P.3d 663) (stating that we interpret the constitution in accordance
with its “original public meaning”); supra ¶ 18 (noting that our
intuition about the meaning of language is “fallible”) (quoting State
v. Rasabout, 2015 UT 72, ¶ 54, 356 P.3d 1258 (Lee, A.C.J., concurring)).
29
RICHARDS v. COX
LEE, A.C.J., concurring in part and in judgment
¶71 The listed entities may not constitute an exhaustive list.
Article X speaks to what is “include[d]” in the “state’s education
systems.” The argument thus could be made that the institutions
defined in sections 1 and 2 are merely exemplary.8 Even so, in
context the word “include” is simply an acknowledgement of the
legislature’s power to establish additional schools, institutions, and
programs as part of the “state’s education systems.” And that power
would be limited—under the ejusdem generis canon of construction—
to the kinds of institutions and programs that fulfill a similar
function as those expressly listed in the constitution. 9 The listed
institutions and programs are all aimed at providing instruction to
students. So although the legislature can expand the “state’s
education systems” by establishing additional institutions and
programs to educate students, its power is limited. It cannot, for
example, establish a new transportation agency or economic
development program and call it part of the “state’s education
systems.” Instead the legislature has the authority to designate new
entities aimed at providing education to students, and establishing
such entities as part of “the state’s education systems.”
_____________________________________________________________
8 See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 132–33 (2012) (discussing the
presumption that “[t]he verb to include introduces examples, not an
exhaustive list”).
9 See State v. Bagnes, 2014 UT 4, ¶ 19, 322 P.3d 719 (“Under the
ejusdem generis canon, catchall elements of statutory lists may be
‘understood as restricted to include things of the same kind, class,
character, or nature as those specifically enumerated, unless there is
something to show a contrary intent.’” (quoting State ex rel. A.T.,
2001 UT 82, ¶ 12, 34 P.3d 228)).
30
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¶72 This conclusion is also reinforced by the noscitur a sociis
canon of construction as applied to another clause of article X,
section 8—the clause referring to “employment, admission, or
attendance in the state’s education systems.” The terms “admission”
and “attendance” reinforce the notion that the “state’s education
systems” involve entities that provide education to students.
Students seek “admission” and “attendance” in schools or similar
entities. Those terms would not make sense as applied to an entity
that merely makes policy for the operation of schools. We commonly
speak of a person seeking “admission” or “attendance” in a school,
university, or college. Those words, however, are not associated with
a policymaking body like a Board of Education. 10 And that reinforces
_____________________________________________________________
10 This is a conclusion that can be supported with evidence
derived from a corpus linguistic search. Because the operative
constitutional language was adopted in 1986, compare UTAH CONST.
art. X, § 12 (1896), with UTAH CONST. art. X, 8 (1986), the question
presented concerns contemporary usage of these constitutional
terms, see Lee & Mouritsen, supra ¶ 44 n.1, at 824–26 (noting the
importance of identifying the right timeframe for a corpus search).
And the Corpus of Contemporary American English can help us
understand contemporary usage. The usage question here is one of
“collocation”—“the tendency of words to be biased in the way they
co-occur.” Susan Hunston, CORPORA IN APPLIED LINGUISTICS 68
(2002). And a collocate search in the Corpus of Contemporary
American English confirms that “attendance” is strongly associated
with (commonly used in conjunction with) the words “school,”
“college,” and “university,” and that “admission” is strongly
associated with the words “college” and “university.” See CORPUS OF
CONTEMPORARY AMERICAN ENGLISH, https://www.english-
corpora.org/coca/?c=coca&q=73806164 (last visited Mar. 15, 2019)
(search results for “attendance”); CORPUS OF CONTEMPORARY
AMERICAN ENGLISH, https://www.english-
corpora.org/coca/?c=coca&q=73806358 (last visited Mar. 15, 2019)
(search results for “admission”). Neither “attendance” nor
“admission” has any apparent association with “school board,”
“board,” or related policymaking bodies. This is another example of
the sort of evidence we can get from a corpus but not from other
sources (dictionaries and the like) commonly used by our courts. See
State v. Rasabout, 2015 UT 72, ¶¶ 46–50, 57–63, 356 P.3d 125(highlighting the deficiencies of dictionaries and other tools and
explaining how corpus linguistic analysis can address these
problems); Lee & Mouritsen, supra ¶ 44 n.1, at 807–11, 828–30 (same).
31
RICHARDS v. COX
LEE, A.C.J., concurring in part and in judgment
the conclusion that “the state’s education systems” encompass
schools, colleges, universities, and similar programs that provide
education directly to students. 11
¶73 With this in mind, I would ask whether Board members
have a formal relationship with an entity that falls within the “state’s
education systems.” And I would conclude that they do not. The
Board does not directly educate students. Rather it exercises “general
control and supervision of the public education system.” UTAH
CONST. art. X, § 3. The Board’s duties are largely defined by statute.
They include the responsibility to “develop policies and procedures
related to federal educational programs,” “make rules[] that require
notice and an opportunity to be heard for an education entity
affected by a state board action,” control “[s]chool lunch revenues,”
and “establish rules and minimum standards for the public schools
that are consistent with [the] public education code.” See UTAH CODE
§§ 53E-3-401, -501–17. None of these duties are within the functions
filled by the institutions and programs listed in article X, section 2.
_____________________________________________________________
11 The majority also relies on the noscitur a sociis canon—albeit for
different reasons. It employs the canon to support its chosen
definition of “employment” and to conclude that “employment” as
used here “does not remind of or encompass board members.” Supra
¶ 34. I am not opposed to reliance on this canon of construction. But
I believe the majority misapplies it.
The majority argues that “[b]oth admission and attendance evoke
a physical presence and occupation.” Supra ¶ 34. That may be true.
But physical presence or occupation where? The majority has an
answer to that question—“within schools.” Supra ¶ 34. It is this jump
to “within schools,” however, that I find troubling. Nothing about
the words “admission” or “attendance” by themselves mandate an
association with schools. It seems to me that the majority is drawing
this association from the phrase “state’s education systems”—
effectively saying that the phrase “state’s education systems” is
defined by reference and comparison to schools. But it fails to
explain why this is so.
I ultimately agree that Board members are not employed by the
“state’s education systems.” But that’s not because we aren’t
reminded of Board members when we read the reference to
“employment” in a list that refers to “admission” and “attendance.”
It’s because the Board is not part of the “state’s education systems.”
32
Cite as: 2019 UT 57LEE, A.C.J., concurring in part and in judgment
¶74 Even if the Board of Education could be brought within the
“state’s education systems” as defined in article X, that article limits
the “state’s education systems” to those schools, institutions, and
programs that the legislature designates. UTAH CONST. art. X, § 2.
And the legislature has not designated the Board of Education as an
institution or program that is within the “state’s education systems.”
This is supported by the fact—which the majority notes—that Board
members are compensated by the Department of Administrative
Services.
¶75 There is a significant sense, of course, in which the Board of
Education affects state education policy. But I do not see how that
renders the Board a part of the “state’s education systems.” This
argument proves too much, as it would sweep in not just the Board
but also the legislature—which also affects education policy but
cannot be thought to be subject to any constitutional bar on partisan
elections.
¶76 Because I believe that the Board of Education does not fall
within the “state’s education systems,” I would hold that Board
members do not enjoy “employment . . . in the state’s education
systems.” Thus they are not subject to article X, section 8’s
prohibition on partisan or religious tests as a condition of
employment. I view this as a more transparent way to reach the
same decision the majority reaches.
33