Dr. A. LeGrand Richards,  Appellees,
Spencer Cox, Utah Lieutenant Governor, Appellant.
Direct Appeal Third District, Salt Lake The Honorable Andrew
H. Stone No. 170904078
R. Irvine, Alan L. Smith, Salt Lake City, for appellees.
D. Reyes, Att'y Gen., Tyler R. Green, Solic. Gen.,
Stanford E. Purser, Deputy Solic. Gen., Salt Lake City, for
Justice Himonas authored the opinion of the Court in which
Chief Justice Durrant, Justice Petersen, and Judge Hagen
Associate Chief Justice Lee filed a separate opinion
concurring in part and concurring in the judgment.
recused himself, Justice Pearce does not participate herein;
Court of Appeals Judge Diana Hagen sat.
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. It does not.
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,
explicitly made "[t]he office of State Board of
Education . . . a partisan office." Utah Code §
20A-14-104.1.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 qualifications[s]" does not apply to
or establish a ban on general partisan elections for Board
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. Accordingly, we reverse the district court
and hold SB 78 to be constitutional and commensurately allow
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.
The district court agreed with appellees, concluding that
"[t]here is perhaps no more partisan a test than a
contested, partisan 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.
We exercise jurisdiction under Utah Code section
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.
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. The parties
disagree, however, about whether the election laws prescribed
by SB 78 run afoul of article X, section 8 of the Utah
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.
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
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.
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.
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.
CONSTITUTIONAL INTERPRETATION FRAMEWORK
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)).
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."
MEANING OF ARTICLE X, SECTION 8
Understanding and Defining "Employment"
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.
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. In this sense, Board members 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. However, despite
the creativity of Shakespeare-and this one, limited type of
usage-the word employment lends itself to multitudinous other
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.
Although no one dictionary definition can be completely
authoritative,  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 LJ 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');">356 P.3d 1258 (Lee, ACJ, 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.
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.
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
analytical or persuasive value of corpus searches). 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
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. When analyzing the
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."
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
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.
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.
Our corpus analysis accordingly confirms our linguistic
intuition-that "employment in" in this context
refers to some sort of 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).
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 ...