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The Utah State Board of Education on Tuesday refused to implement a school voucher program using an incomplete version of state law creating the program, a move that could speed a Utah Supreme Court decision on vouchers but leave the board without legal counsel.
State school board members ignored the advice of Utah Attorney General Mark Shurtleff in issuing an emergency order saying they cannot and should not implement a voucher program. Shurtleff says it means he can't defend the board's decision if someone challenges it in court.
"I don't think that I'm in the position to defend that action because they've gone contrary to my advice," he said. "I agree with them that it needs to get to the court as soon as possible and I gave them several options as to how that could happen . . . [but they] decided to use this strange order that I don't believe they have the authority [to use]."
Republican Rep. Sheryl Allen of Bountiful joined two other anti-voucher lawmakers in petitioning board members to approve the emergency order, which they considered along with Shurtleff's advice during a special meeting. Shurtleff's office has repeatedly advised the board to start a voucher program based on a partial law drafted to amend the Parent Choice in Education Act, re-enacting entire sections of the original law but omitting others.
The original law cannot be implemented because a successful referendum drive shelved it pending a Nov. 6 election during which voters will be asked whether it needs to be repealed.
Widespread debate centers on whether the amended version of the law could stand alone if the public repeals the original voucher act. Shurtleff's office opined that it could, but voucher opponents want a court to decide.
The state school board heard public comment on its options. Then, following a private 90-minute session with Shurtleff and another 90 minutes of closed-door debate Tuesday, members voted 10-4 to issue the emergency order requested by Allen and Republican Reps. Kory Holdaway and Steven Mascaro.
Members who favored the order said it was the best way to expedite a court ruling on the matter.
"This to me is the way to get it before a court and get it heard by somebody who can make a decision so we can go forward," said board member Denis Morrill of Taylorsville. "Everybody ought to be cheering who wants this decided once and for all."
Opponents of the decision repeated Shurtleff's concern that the board couldn't issue an emergency order because it couldn't prove that ''an immediate and significant danger to the public health, safety, or welfare exists,'' as required in Utah code.
"When the Legislature passes a law, you obey the law even when it's difficult," said Bill Colbert, a board member from Draper. "I hope the people doing this can quantify who will be harmed that we need to take immediate action."
Anyone who disagrees with the board's decision has 30 days to appeal it in the Utah Court of Appeals, just one step below the state's highest court. The appeals court could opt to send the case directly to the Supreme Court, which already has voucher matters before it.
The group behind the referendum drive is expected to file a Supreme Court challenge to the ballot language today. And voucher supporters, including the legislative sponsors of the original law, petitioned the court to review the referendum ballot title because it doesn't mention the second law.
Responses from the petition's targets, the Office of Legislative Research and General Counsel and Lt. Gov. Gary Herbert, missed Tuesday's deadline but will be accepted by the court today, a clerk said. The court hasn't yet set a hearing date or indicated whether it will grant a request to postpone Friday's deadline for voter information pamphlet language for and against the referendum.
But voucher supporters have demanded the state school board offer vouchers in the meantime based on the remaining law.
"There's just no other explanation for such open defiance of the law than personal opposition to school choice," said Leah Barker, a spokeswoman for Parents for Choice in Education, a political action committee that lobbied heavily for vouchers.
She said the group's board would likely organize a conference call this week with its attorneys to decide whether to file a legal challenge.
Teresa Theurer of Logan (District 1)
Greg Haws of Hooper (District 2)
Kim Burningham of Bountiful (District 5)
Michael Jensen of West Valley City (District 6)
Randall Mackey of Salt Lake City (District 7)
Janet Cannon of Salt Lake City (District 8)
Denis Morrill of Taylorsville (District 9)
Laurel Brown of Murray (District 10)
Dixie Allen of Vernal (District 14)
Debra Roberts of Beaver (District 15)
Richard Moss of Santaquin (District 3)
Bill Colbert of Draper (District 11)
Mark Cluff of Alpine (District 12)
Tom Gregory of Provo (District 13)
Richard Sadler of Ogden (District 4)
* The issue: Whether the state should implement a second law amending the voucher program.
* What's new: The Utah State Board of Education issued an emergency order saying it cannot implement the law independent of its original.
* What's next: Critics of the decision have 30 days to appeal to the Utah Court of Appeals, which could pass the matter to the Utah Supreme Court.