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Richards v. Cox

Supreme Court of Utah

September 11, 2019

Dr. A. LeGrand Richards, [1] Appellees,
Spencer Cox, Utah Lieutenant Governor, Appellant.

          On Direct Appeal Third District, Salt Lake The Honorable Andrew H. Stone No. 170904078

          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.




         ¶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 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.


         ¶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 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).


         ¶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.


         ¶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 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.


         ¶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)).

         ¶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."


         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 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.

         ¶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 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.

         ¶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 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 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 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 ...

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