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The following op-ed was published this past weekend in the Salt Lake Tribune.
Free speech and free association are among our most fundamental and important rights. Unfortunately, the Utah Legislature reactively passed legislation that substantially jeopardizes them. The organizations we represent—the Utah Taxpayers Association and the Libertas Institute—filed a lawsuit today in an effort to have that law declared unconstitutional.
House Bill 43, passed in the 2013 legislative session, forces educational organizations to abide by reporting requirements similar to those for candidates and PACs, compelling detailed disclosure of donors for publication in an online database. The bill was passed in response to a political consultant’s seemingly illegal use of non-profit organizations to attack Representative Brad Daw while hiding the source of the campaign’s donors: the payday lending industry which Representative Daw had attempted to regulate.
While the Legislature may have been well intentioned in passing HB 43 in an attempt to halt situations similar to what happened to Representative Daw, the fix turned out to be a situation of taking a sledgehammer to an issue where a scalpel was needed. While it makes sense to require disclosure from organizations whose primary or sole purpose is political—as they directly affect government processes and outcomes—the bill expanded the reporting requirements to include organizations whose political advocacy is infrequent and, more often than not, focused on advocacy and education.
Libertas Institute announces its latest hire—our new director of communications: Nichelle Aiden!
Nichelle brings a combination of acting and writing experience to the table and will help transform Libertas’ successful policies into engaging and impactful stories that make a meaningful difference to each Utahn. She will, in short, be our organization’s chief storyteller.
Speaking of her new position, Nichelle said, “I am thrilled to join the team at Libertas Institute. I love telling real, beautiful stories and connecting with people—that is exactly why I act and write. I’m excited to bring my talents to the cause of liberty in Utah; freedom is something we all relate to and desire, and yet so many of us don’t understand what it really means. I believe Libertas has powerful messages and stories to share, and I’m beyond excited to help tell them in ways that resonate on a deep level with each Utahn.”
Nichelle studied journalism at Utah Valley University and has been writing stories since she was a kid. She has been working as an actress in both Utah and Los Angeles for the last seven years and is currently preparing to write and direct her first short film. In her spare time she studies film, writes, rock climbs, enjoys the outdoors, and loves spending time with her nieces and nephews.
Curious to know more? Send Nichelle an email at firstname.lastname@example.org.
Salt Lake City, UT (November 16, 2015) — A new lawsuit will be filed tomorrow morning seeking to overturn a recently enacted law that compels private non-profit organizations to publicly disclose the personal information of their donors when the organization spends $750 or more on political activity in a single year. The brief alleges that this law—House Bill 43, passed in the 2013 legislative session—is unconstitutional under the First and Fourteenth Amendments.
Libertas Institute is a plaintiff in the lawsuit, along with the Utah Taxpayers Association.
- What: Announcement of a new lawsuit against Lieutenant Governor Spencer Cox, Attorney General Sean Reyes, District Attorney Sim Gill, and District Attorney Jeff Buhman
- Where: Utah Capitol, Presentation Room (first floor, next to Visitor’s Center)
- When: Tuesday, November 17, 10am
House Bill 43 was sponsored by now-Speaker Greg Hughes, and was filed in response to a political consultant’s illegal use of non-profit organizations to hide the identity of the source of his donors—from the payday lending industry—to fund a negative campaign against Representative Brad Daw, who had sought to regulate the industry’s practices.
“Free speech and association are fundamental aspects of what it means to be an American—and Utahn,” said Connor Boyack, president of Libertas Institute. “They should not be undermined because of rogue political consultants and reactionary legislatures. We look forward to the judicial scrutiny this lawsuit will bring and are hopeful that this problematic law will be declared unconstitutional.”
The plaintiffs in the case are represented by Allen Dickerson and Owen D. Yeates, attorneys working with the Center for Competitive Politics.
The following op-ed was published this past weekend in the Salt Lake Tribune.
Political support for Medicaid expansion in Utah is on life support and the prognosis may be terminal. However, this doesn’t mean there isn’t a pathway forward for those looking for health care solutions. That pathway is the same one that has solved many of our problems — innovation.
Each Medicaid expansion proposal has been a reaction to the failure of federal policy in attempting to address the “coverage gap.” But the gap is only a symptom of the underlying disease. The Affordable Care Act did little to actually make care affordable. In fact, it aggravated the very conditions that have driven health care costs up: regulation and government intervention. Obamacare put more patients into the system with no corresponding increase in practitioners, while also forcing insurance plans to cover more services —making them less like insurance and more like full service warranties.
We now expect our health insurance to pay for every medical service we use and yet are shocked when its cost becomes unaffordable. We don’t expect our car insurance to pay for oil changes or our homeowners insurance to pay for lawn service — why do we expect our health insurance to pay for routine doctor visits?
Childhood education in our country has gone from private and optional to public and mandatory. However, schools were never intended, and are not equipped, to replace parents. Local control of education at the state, district, and neighborhood level is designed to ensure that schools remain an extension of the child’s parents at home—not a replacement for them. Unfortunately, it appears that Utah has moved away from this ideal. As attendance at government schools was legally made mandatory, the government subsequently created criminal penalties for failure to attend.
Compulsory education laws in Utah make it a class B misdemeanor for parents to keep children absent from school without a government-defined “valid” excuse, thereby turning parents into criminals for not taking full advantage of government schools on each and every government-assigned school day. A class B misdemeanor carries the possibility of jail time, placing parents behind bars if their children are not behind their desks.
The district court heard the Utah State Board of Education’s motion to dismiss our Common Core lawsuit on Tuesday. The hearing is an early procedural tactic by the state to terminate the lawsuit by arguing that the law does not support the suit. Interestingly, the state’s arguments ignored the substantive complaint against the adoption of Common Core and instead focused on purely procedural matters. While procedural matters are important and are frequently deal breakers in litigation, this attempt shows that the Board is not interested in rectifying the disservice it did to Utahns when it refused to follow the process set forth in law to consult parents, teachers, administrators, and local school boards in adopting new curriculum standards.
One argument made by the state challenged the standing of the parents and teachers to sue by reasoning that the adoption of curriculum standards was not an issue of significant public interest implying that parents and teachers have no interest or right in determining the curriculum standards used to teach their children and therefore should have no legal remedy. This is despite the fact that state law specifically states that in “establishing minimum standards related to curriculum and instruction” the Board shall consult with local school boards, teachers, parents, and others.
Another argument the state made was that the two-year statute of limitations to sue had run out because the standards were “in effect” well before they were actually in effect in schools. While the first full school year for which the standards are being used is this year, the Board’s position is that parents and teachers had to act back in 2012 or 2013 to challenge the standards. This shows the inherent problems with large controversial administrative changes that are made, but not fully implemented, until years later—it potentially leaves harmed Utahns without judicial remedy.
Perhaps the most deceptive argument the Board made was that the statute envisions a two part process of adoption of the standards and implementation of standards and that the requirement to consult parents and teachers only applied to their implementation. This is not supported by the statutory language as the word adopt didn’t even exist in statute until 2014—four years after the Board signed up to impose Common Core in every public school in Utah. The statutory phrase in effect in 2010 was “establishing minimum standards” and seems clearly intended for the Board to consult with parents and teachers as a part of establishing/adopting the standards. The creative interpretation of this provision by the state aims to undermine this intent.
The judge asked for some additional briefs on a few items and said she would issue a ruling on the state’s motion in court on November 3rd.
Utah law affirms that “the state’s role is secondary and supportive to the primary role of a parent.” If you’re a parent of a child in public school, this is more theory than practice—without your consent, and likely without your knowledge, the state is collecting large amounts of data on your child in a centralized database, and sharing that information with corporations and the federal government.
In 2009, former Governor Jon Huntsman signed an application to the U.S. Department of Education, the purpose of which was to obtain federal “stimulus” dollars. Without legislative authorization or guarantee, the Governor unilaterally made four assurances to the federal government—a required step in order to receive any money. Among other policy commitments, the assurances included a binding promise to “establish a longitudinal data system.” Within a year’s time, Utah had been showered with $742 million through the American Recovery and Reinvestment Act.
Utah lawmakers—and thus the public at large—were left out of the loop. This trend continued, with the Utah State Office of Education receiving a $9.6 million grant to create the Utah Data Alliance—a conglomerate of state agencies managing the database with your child’s information. Their operations are not governed by state or federal law, but only by the promises made in the grant application and a “memorandum of understanding” between Alliance members.
Last year, Libertas Institute proposed legislation to bring transparency to law enforcement, specifically to high-risk warrants and SWAT team deployments. The first annual report—a requirement of the legislation—was published today by the Commission on Criminal and Juvenile Justice.
The report includes information provided by law enforcement agencies around the state for the year 2014. Sadly, and in violation of the law, only 75% of agencies contacted provided information for the report.
Here are the key findings from the report:
- There were 559 unique incidents in 2014, defined as a search warrant served using forcible entry (no knock or knock and announce) as well as all deployments of tactical teams.
- Warrants were utilized in 96% of all reported incidents, with forcible entry being
employed 61% of the time.
- 83% of forcible entry warrants dealt with drug crimes.
- Weapons were only present in 0.5% of the incidents reported.
- Less than 1% of incidents resulted in an officer discharging his or her firearm.
- Three civilians were injured and three were killed in 2014, with zero law enforcement fatalities/injuries.
This past week, a nursing mother was told to leave a Layton business because she was nursing. The woman claims that the establishment “broke the law” and that she “knows her rights,” and for that reason called a police officer to back her up. Facing pressure, the company issued a statement which reads, in part: “We fully respect and support the rights of women to breastfeed in public as supported by Utah law.”
What does Utah law actually say about breastfeeding? (Hint: the woman is wrong, and the company is right—sort of.)
There are only a handful of laws dealing with breastfeeding in Utah. Section 17-15-25 states that county governments may not prohibit breastfeeding “in any location where [the woman] otherwise may rightfully be…” This is not a statutorily recognized right, but rather a prohibition against county governments banning the action in places where nursing mothers have the right to be. Section 10-8-41 has the same reference, but to boards of commissioners and city councils.
One year ago, Libertas Institute announced a lawsuit against the State Board of Education over its adoption of Common Core, alleging that the Board had violated two laws in so doing—both of which dealt with public notice and input. The Board’s violation thus prevented Utahns from seeking to alter or oppose the untested standards, and led to them being hastily implemented in this state.
Since that time, attorneys for the plaintiffs have been involved in discovery requests, reviewing documents generated by the Board relative to Common Core’s adoption and implementation. However, the Attorney General’s office has now filed a motion to dismiss the lawsuit altogether.
The AG’s office, representing the Board, claims the following:
- The plaintiffs cannot bring the lawsuit against the Board, because the clock has run out—the “statute of limitations” has expired, and so no lawsuit against Common Core’s implementation is valid.
- The plaintiffs must file an administrative appeal through the Board itself, rather than suing in court.
- The plaintiffs lack legal standing to sue the Board, and therefore the lawsuit should be dismissed.
- The plaintiffs failed to state a valid claim upon which relief may be granted.
You can read the AG’s 36-page brief here. It is effectively a procedural argument, attacking the plaintiff’s standing, the court’s ability to even hear the case, and the timing of the lawsuit itself. Critics might reasonably infer that because the Board’s violation of the law is clear, this is a desperate attempt to make the lawsuit go away without arguing the merits of the arguments themselves.
The attorneys for the plaintiffs—a group of educators, employers, and parents—have just filed a 17-page motion in opposition to the AG’s request, which you can read here. The arguments are as follows:
The statute of limitations does not apply; the clock has not run out
Challenging administrative rules must be done within two or four years of an agency’s rule’s “effective” date, but the Common Core standards have never become effective as that term is defined under law, because the standards were never adopted as a rule; there is no effective date if there is no rule. Additionally, the standards were not “operative and enforceable” until 2014, making the filing of the plaintiffs’ claims well within the two or four year statute of limitations.
The plaintiffs can’t file an administrative appeal; the court does have jurisdiction
The court has subject matter jurisdiction because administrative remedies were unavailable to the plaintiffs, as the Common Core standards were never adopted as a rule—a prerequisite to making an administrative challenge. The plaintiffs’ only recourse is to file a lawsuit to force the Board to use the administrative process in adopting and implementing CCS, so that the plaintiffs can then seek administrative remedies. The Board is effectively seeking to deny the plaintiffs any remedy by refusing to follow the law.
The plaintiffs clearly have standing to sue the Board
The plaintiffs have traditional standing in seeking declaratory relief by the court. They suffered a palpable injury because they were not allowed an opportunity to give input on the Common Core standards under the Utah Administrative Rulemaking Act (UARA). They also have statutory standing both under the UARA and Utah Code § 53A-1-402.6(1). UARA allows an interested person to request the making, amendment, or repeal of a rule. Utah Code § 53A-1-402.6(1) requires the Board to consult with school boards, school superintendents, teachers, employers, and parents when implementing core standards. Both statutes afford the plaintiffs statutory standing to bring this action, in addition to the declaratory relief law.
The plaintiffs also have public-interest standing in seeking declaratory relief, as they are appropriate parties and the violation of UARA is an issue of significant public importance. The claims raised by the plaintiffs are justiciable. By granting them declaratory relief, the court will settle the issue of whether Common Core standards should be implemented as a rule and subject to the administrative procedure. The plaintiffs can then challenge the standards under UARA as intended by the statute.
The plaintiffs do have a valid claim upon which relief may be granted
The Board argued that since the standards only affect students, the plaintiffs do not have a valid claim and therefore cannot seek judicial relief. But the Common Core standards apply to parents, teachers, school employees, and students—not only to students enrolled in state education institutions as asserted by the Board. Thus, the rulemaking procedures of UARA are applicable to the Common Core standards.
Obviously, the motions themselves contain far more detail than is here presented. Suffice it to say that the Attorney General’s office is avoiding the merits of the plaintiffs’ arguments by repeatedly delaying the procedural hurdles involved in the lawsuit (they had a few things going on with same-sex marriage) and now attempting to quash the lawsuit altogether. The plaintiffs and their attorneys remain quite convinced of the procedural and substantive merits of the case, and eagerly anticipate a favorable judicial review of this motion so that we can move on to the arguments themselves, and force the Board to comply with the law.
The Utah legislature intended for education standards to be vetted and discussed prior to statewide implementation; changing what hundreds of thousands of children are learning about is something that requires public input and awareness. As such, both the rulemaking process and statute itself require public input and involvement—both of which were denied while Common Core was quickly pushed through, despite these standards never being piloted, researched, or proven prior to implementation. Utah children were therefore turned into pedagogical guinea pigs by the Board’s mandate. We seek to hold the Board accountable.