That said, if the referendum passed, and HB 174 stood on its own, there would have been another legal battle. I think the UTSC wanted to avoid that. It’s a pragmatic decision, but it is judicial activism.

Besides the fact that not a single legislator who has commented on the two bill fiasco has claimed that HB 174 was intended upon its creation to stand on its own and the fact that as you say there was no definitions section included in HB 174 I think the bill’s title was the best indication of what HB 174’s intended purpose was. It wouldn’t have been any problem for a competent judge to decide the issue as the UTSC unanimously did based on that alone.

The argument that HB 174 made it so the referendum election was meaningless was far and away the most clear and obvious appeal to judicial activism at any point in this whole thing.

In the end Republican disingenuousness failed and Utahns are better off for it. Utah’s voters can now decide if we want vouchers or not in a clear up or down vote.

The court argues:

Should HB 148 be rejected by the voters under the referendum before us, HB 174 would be without legal meaning. Specifically, we conclude that HB 174 was not intended by the Legislature to stand alone as an independent act creating an educational voucher program, and therefore it does not.

Before I get into looking at the actual language of the two bills, note what what UTSC is doing, they are looking at legislative intent. That aren’t looking at the actual text, they are look at intent. If you ever what to see an example of judicial activism, this is what you look for–judges saying what the “intent” of something is, rather than what the actual language says. That said, the UTSC could easily remedy their folly with a decent decision that relies on statutory language and not on ethereal discussion of what a legislature “intended” to do. The reason is simple, I can’t say anyone else “intended” to do. I can’t get inside you head and diving intent, as the UTSC apparently did here (but instead of the head of 1 person they go into the head of an entire legislature). I can only say what someone actually did.

Since this is an incomplete opinion I can’t read their reasoning, but at first blush, the reasoning is deficient. HB 174 contains the heart of a voucher program. It doesn’t contain ancillary sections, such as “Mitigaiton Monies” or “Limitations on Regulation of Private Schools, but it contains the heart of the program.

Let’s compare the two bills. The UTSC could say that 174 has no meaning because the title says things like the bill, “modifies criteria for qualifying for a scholarship” instead of the language of 148 “specifies criteria for qualifying for a scholarship;.” That could be a decent argument, but judges should not divine intent from titles, or legislative history, they should look at the intent of actual law and bill titles don’t care the same weight has actual bill language.

HB 148 has a section on “Findings and purpose” and HB 174 doesn’t. You could argue that this shows that HB 174 relies on something else. That’s a fine argument, but that doesn’t mean that HB 174 is “without meaning.” It only means that 174 doesn’t have “findings” section. What really matters is what the law actually does and that comes later.

HB 148 has a section on “Definitions,” while 174 does not. This is one point in the UTSC’s favor, but I can’t see from reading the definitions why it is necessarily fatal to not have definitions of these terms. Most definitions can be imputed from the context of the bill. By the way, the lack of this section in HB 174 is the best argument I can find to support the UTSC’s decision.

Both bills have a section entitled, “Scholarship program created — Qualifications — Application.” Both bills have sections entitled, “Eligible private schools.” Both bills have a section entitled, “Scholarship payments.” These sections are the heart of the Utah Voucher program and most importantly, HB 174 has pertinent language that creates the program, describes who is eligible, what schools are eligible, and describes how they receive the money. Aside from actually appropriating money, everything in the bills is ancillary to these sections.

HB 174 does not contain section on “Mitigation Monies.” This surely isn’t fatal because this isn’t integral to the creation of the program.

Both bills have a section entitled, “Board to make rules.” The UTSC could have a point if they argued that 174 can’t stand on its own because it doesn’t contain a definitions sections that specified that the board is the Board of Education. Again, this should not be a fatal flaw since it could be inferred from the rest of the bill, such as “Section 6. Appropriation” that the Board in question is the Board of Education.

HB 174 does not have a section on “Enforcement and Penalties.” I fail to see why the exclusion of this section would render the bill meaningless.

HB 174 does not have a section entitled, “Limitation on regulation of private schools.” Again, this is not the heart of the program. It is ancillary.

Both bills have sections on “Review by legislative auditor general” and “Appropriation.”

Lastly HB 174 has a coordinating section that states:

“If this H.B. 174 and H.B. 148, Education Vouchers, both pass, it is the intent of the Legislature that the amendments to the sections in this bill supersede the amendments to the same numbered sections in H.B. 148 when the Office of Legislative Research and General Counsel prepares the Utah Code database for publication.

The UTSC could argue that this presupposes that 174 relies on 148, but an equally good argument is that 174 contemplates that 148 might not pass and thus it should stand on its own.

In sum, the sections in 148 that aren’t in 174 are completely ancillary. HB 174 contains the heart of the voucher program and could stand on its own. HB 148 makes 174 more complete, but 148 is not necessary.

I agree with you that this decision wasn’t judicial activism…it was the opposite. Voucher supporters were hoping for activism and instead met with unanimous opposition to their arguments.