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2007 Utah Attorney General Reports and Opinions 1 (2007)

handle is hein.sag/sagut0018 and id is 1 raw text is: Opinion No. 07-001 To: Greg Curtis, Speaker of the Utah House of Representatives From: Mark Shurtleff Utah Attorney General Date: July 17, 2007 Subject: Constitutionality of S.B. 30 I. INTRODUCTION This memorandum is in response to your request for an informal legal opinion as to the constitutionality of one of the electoral options outlined in Senate Bill 30 (S.B. 30) passed in the 2007 General Session (http://le.utah.gov/-2007/htmdoc/sbillhtm/sbOO3OsOl.htm) (a copy of which is attached.) S.B. 30 amended Utah Code Ann. §53A-2-118, which provides various mechanisms for the creation of a new school district by local political subdivisions. Under scrutiny is S.B. 30's designation of the voters who are eligible and qualified to vote on the issue of the creation of a new school district when the request is initiated by a city or cities pursuant to an interlocal agreement (hereafter collectively referred to as a city,') Utah Code Ann. §53A-2-118(2)(a)(iii).1 Specifically, S.B. 30 provides that if a city initiates the request, those entitled to vote on the proposal are the legal voters within the proposed new school district boundaries. Utah Code Ann. §53A-2-118(5)(b)(I). This electoral option differs from other electoral provisions of Utah Code Ann. §53A-2-118, which provide that the legal voters within both the proposed school district and the remaining school district are eligible to vote on the creation of a new school district, if the request was initiated (1) through a citizens' initiative petition, or (2) by the board of the existing school district or districts to be affected by the creation of the new district. See Utah Code Ann. §53A-2-118(2)(a)(I), (ii), (4)(e). As you know, an attorney retained by Jordan School District has opined that allowing just the voters of the proposed new school district to vote on the proposal violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. In response to your request, a number of assistant attorneys general and I have researched and analyzed this question and we disagree. The new law clearly raises constitutional concerns, and if a City votes to split off from an existing school district, there will likely be a legal challenge. As you know, how the courts will rule depends to large extent on the standard of review they follow, and whether they will apply federal or state law. As set forth in the following legal analysis, it is the opinion of the Office of the Utah Attorney General that there is a substantial likelihood that the courts will uphold S.B. 30. II. FEDERAL CONSTITUTIONAL LAW Every statutory analysis begins with the presumption of constitutionality to which every duly enacted state and federal law is entitled. Town of Lockport v. Citizens for Community Action, 430 U.S. 259, 272, 97 S.Ct. 1047, 1056, 51 L.Ed.2d 313 (1977). Nonetheless, when a law impinges on certain fundamental rights, and the right to vote may be one of the most fundamental of all, it will ordinarily be subjected to strict scrutiny by a court. Westberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 534, 11 L.Ed.2d 481 (1964). Under this exacting standard, a discriminatory law will not be upheld unless its classification: bears a close relation to the promoting of a compelling state interest; is necessary to achieve the government's goal, and is narrowly drawn to achieve that goal by the least restrictive means possible. Plyler v. Doe, 457 U.S. 202, 217, 102 S.Ct. 2382, 2395, 72 L.Ed.2d 786 (1982). If the courts apply this standard, the State of Utah will have a higher burden to meet in overcoming a constitutional challenge.

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