DR. A. LEGRAND RICHARDS, et al. v. SPENCER COX, Utah Lieutenant Governor
No. 20180033
SUPREME COURT OF THE STATE OF UTAH
September 11, 2019
2019 UT 57
On Direct Appeal
Third District, Salt Lake
The Honorable Andrew H. Stone
No. 170904078
2019 UT 57
Attorneys:
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.
JUSTICE HIMONAS, opinion of the Court:
1 KATHLEEN MCCONKIE, RANDY MILLER, CAROL BARLOW LEAR, THE UTAH PTA, UTAHNS FOR PUBLIC SCHOOLS, INC., and ABU EDUCATION FUND are also parties to this appeal.
INTRODUCTION
¶ 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 is 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.”
¶ 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
BACKGROUND
¶ 4
¶ 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 [
¶ 6 We exercise jurisdiction under
STANDARD OF REVIEW
¶ 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.
ANALYSIS
¶ 8 Both parties agree that the legislature has the authority to prescribe election laws for the office of State Board of Education.
¶ 9 Appellees claim that
¶ 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
¶ 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.”
¶ 12 The district court concluded that
I. CONSTITUTIONAL INTERPRETATION FRAMEWORK
¶ 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
II. THE MEANING OF ARTICLE X, SECTION 8
A. Understanding and Defining “Employment”
¶ 15 The relevant language of
¶ 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
¶ 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 L.J. 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 (Lee, A.C.J., 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
¶ 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
¶ 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
¶ 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
¶ 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 is accomplished; (2) the skill required; (3) the source of the instrumentalities and tools; (4) the location of the work; (5) the duration of the relationship between the parties; (6) whether the hiring party has the right to assign additional projects to the hired party; (7) the extent of the hired party‘s discretion over when and how long to work; (8) the method of payment; (9) the hired party‘s role in hiring and paying assistants; (10) whether the work is part of the regular business of the hiring party; (11) whether the hiring party is in business; (12) the provision of employee benefits; (13) and the tax treatment of the hired party.
Rubinstein, Employees, Employers, and Quasi-Employers, supra, at 618 (alteration in original) (citation omitted).
¶ 27 Using this test solely for its guidance in helping us ascertain the public meaning of employment, we see multiple factors commensurate with the State‘s suggested definition. Factors one, four through nine, twelve, and thirteen all pertain to vocational details and to notions of bosses, workers, employment location, authoritative direction, and emolument relationships. This suggests that the term employee, when describing one in a condition of employment, is used in the context of workplace relations and tasks above and beyond a mere abstract use or function.
¶ 28 Additionally, some courts have endorsed an “economic realities test” to determine employment status. See, e.g., Nowlin v. Resolution Tr. Corp., 33 F.3d 498, 505 (5th Cir. 1994) (“The economic realities test turns on whether the employee, as a matter of economic reality, is dependent upon the business to which he renders service.“). This test also employs several factors in its exploration of the word employee:
(1) the degree of control exercised by the alleged employer; (2) the extent of the relative investments of the worker and the alleged employer; (3) the degree to which the worker‘s opportunity for profit or loss is determined by the alleged employer; (4) the skill and initiative required in performing the job; and (5) the permanency of the relationship. No single factor is determinative. Rather each factor is a tool used to gauge the economic dependence of the alleged employee, and each must be applied with this ultimate concept in mind.
Rubinstein, Employees, Employers, and Quasi-Employers, supra, at 626 (emphasis added) (citing Hopkins v. Cornerstone Am., 545 F.3d 338, 343 (5th Cir. 2008)).
¶ 29 Many courts apply some hybridized form of both tests that centers on the notions of control and economic dependency. Rubinstein, Employees, Employers, and Quasi-Employers, supra, at 626 (“The hybrid test combines both the common law and economic realities tests and attempts to steer a middle ground. There has been widespread adoption of this test . . . .” (citation omitted)). Here, we again see the central
¶ 30 When at least partially informed by the legal definitions available, the most relevant public understanding of employment is therefore, in our view, “[t]he relationship between master and servant . . . [w]ork for which one has been hired and is being paid by an employer.” Employment, BLACK‘S LAW DICTIONARY (11th ed. 2019). The common understanding of the word “employment” implies an additional step beyond mere idle fancy or hobbyist pursuit into some form of employee-employer relationship. Used in this sense, we have found two definitions of “employee” particularly helpful: (1) “one employed by another [usually] for wages or salary and in a position below the executive level,” Employee, WEBSTER‘S NEW COLLEGIATE DICTIONARY 373 (1973) (emphasis added), and (2) “[s]omeone who works in the service of another person (the employer) under an express or implied contract of hire, under which the employer has the right to control the details of work performance,” Employee, BLACK‘S LAW DICTIONARY (11th ed. 2019).
¶ 31 The need for such myriad definitions and artful tests to fully grasp the public meaning of the words employment and employee compels us to accede that, despite some convincing evidence to the contrary, some ambiguity as to what was understood by the term “employment in” at the time of drafting and the passage of article X remains possible. Because we are not presented with, and can locate no direct definitional guidance as to, the position of Board members within or outside of the state‘s education systems, we further elucidate the meaning of the relevant texts as informed by relevant constitutional and statutory provisions and their history.
B. Utah Constitutional History
¶ 32 The original text of the
¶ 33 We simply cannot find any cause to believe the language regarding “condition of employment” was understood to apply to Board members. In fact, all evidence we have been presented with, if anything, cuts against this reading. Until 1986, there was no doubt that the relevant constitutional language did not apply to Board members. As the State notes, in 1982 and 1984, the Utah Constitutional Revision Commission (CRC) considered various changes to article X. The CRC proposed altering the old language, which read “admission, as teacher or student” and “public educational institution of the State,” into the modern provisions, which read “employment, admission, or attendance in the state‘s education systems.” UTAH CONSTITUTIONAL REVISION COMM‘N, REPORT OF THE CONSTITUTIONAL REVISION COMM‘N SUBMITTED TO THE GOVERNOR AND THE 45TH LEGISLATURE OF THE STATE OF UTAH 57 (1984). In the CRC‘s own words, “[t]he only difference between the [past] language and the commission‘s proposal is in the use of the words ‘the state‘s education systems’ in place of ‘any public educational institution of the state.’ . . . It is a language change only, and not intended to have any policy effect.” Id. We see no reason to believe the people of Utah ever understood this language differently.
¶ 34 Finally, the language of
C. Statutory and Case Law Usage of Employment
¶ 35 Outside of the Utah Constitution, several Utah Code provisions separate board officials from the ranks of employees, albeit in different contexts. Although not dispositive in this case, it is relevant that the concept of a board of directors harkens to corporate law and boards of corporate control. Here, there is no ambiguity: the Utah Revised Business Corporation Act explicitly omits board members from the definition of employees of a corporation while, at the same time, designating officers as employees.
¶ 36 Additionally, the State calls our attention to the Election Code and the Utah State Personnel Management Act, which state, respectively, that “[a] State Board of Education member may not . . . also serve as an employee of the State Board of Education,”
¶ 37 Several other courts have dealt with the issue of defining what is meant by “employment” and have provided helpful guidance. “The normal indicia of the employer-employee relationship are contract, control, and compensation.” Am. Cas. Co. of Reading, Pa. v. Wypior, 365 F.2d 164, 167 (7th Cir. 1966); see also Bluestein v. Cent. Wis. Anesthesiology, S.C., 769 F.3d 944, 952 (7th Cir. 2014) (determining that the common-law element of control is demonstrated by six nonexclusive factors, including “[w]hether the organization can hire or fire the individual or set the rules and regulations of the individual‘s work; [w]hether and, if so, to what extent the organization supervises the individual‘s work; [w]hether the individual reports to someone higher in the organization; [w]hether and, if so, to what extent the individual is able to influence the organization; [w]hether the parties intended that the individual be an employee, as expressed in written agreements or contracts; and [w]hether the individual shares in the profits, losses, and liabilities of the organization.” (citing Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 449–50 (2003))); Alexander v. Rush N. Shore Med. Ctr., 101 F.3d 487, 492 (7th Cir. 1996) (developing a five-factor test to determine whether an individual is an employee or independent contractor).
¶ 38 This general pattern of common usage suggests that Board members are separate from employees and consistently applies the State‘s understanding of the term employment as involving some measure of being under direction and control. Although Board members receive compensation and benefits for their services, they have no masters within the state‘s education systems. To apply the Seventh Circuit‘s standard, they are not under contract with the state‘s education systems, they have no controllers within the state‘s education systems, and their compensation is remitted not by the state‘s education systems, but by Utah‘s Department of Administrative Services. Neither are Board members employees “in the state‘s education systems” in that they are accountable to their constituents. Although constituents elect Board members, they can‘t then hire, fire, or supervise Board members after election. In the end, Board members are representatives of, rather than employees of, their constituents.
D. Presumption of Legislative Validity
¶ 39 If, despite the hefty weight of support for the State‘s position, we were to continue to acknowledge a certain level of ambiguity in the phrase “employment . . . in the state‘s education systems,” as far as what may have been understood by the 1986 amendments, we still resolve this case in the State‘s favor under the presumption that legislative enactments are assumed to be constitutional.14 “[W]hen confronted with a constitutional challenge to a statute, we presume the statute to be constitutional, resolving any reasonable doubts in favor of constitutionality.” Univ. of Utah v. Shurtleff, 2006 UT 51, ¶ 30, 144 P.3d 1109. Additionally, other courts have held that if a constitutional provision is ambiguous, the legislature, as a coequal branch of the government, is entitled to some deference in their interpretation of the constitutional text. See Greene v. Marin Cty. Flood Control & Water Conservation Dist., 231 P.3d 350, 358 (Cal. 2010) (“[O]ur past cases establish that the presumption
of constitutionality accorded to legislative acts is particularly appropriate when the Legislature has enacted a statute with the relevant constitutional prescriptions clearly in mind. In such a case, the statute represents a considered legislative judgment as to the appropriate reach of the constitutional provision. Although the ultimate constitutional interpretation must rest, of course, with the judiciary, a focused legislative judgment on the question enjoys significant weight and deference by the courts.” (alteration in original) (citations omitted) (internal quotation marks omitted)); see also Nelson v. Miller, 170 F.3d 641, 652 (6th Cir. 1999) (“[T]he Michigan Supreme Court itself requires that great deference be given to the legislature‘s interpretation of state constitutional provisions that confer upon the legislature the affirmative duty to do something.“); Nat‘l Football League v. Governor of State of Del., 435 F. Supp. 1372, 1384 (D. Del. 1977) (“Delaware courts subscribe to the rule of construction that when terms of the Constitution are ambiguous, the interpretation of the legislature is entitled to deference.“).
¶ 40 Traditionally, we invoke the constitutional avoidance canon in situations in which the questioned statutory language presents two possible meanings, one of which may be unconstitutional. In such a circumstance, it “shows proper respect for the legislature” to assume it meant, and so chose, the interpretation that is in harmony with the constitution. Utah Dep‘t of Transp. v. Carlson, 2014 UT 24, ¶ 23, 332 P.3d 900. Although this case forces us to first expound upon the constitutional language of article X, section 8, we still assume that the legislature “prefers not to press the limits of the Constitution in its statutes.” Id. (citation omitted)
CONCLUSION
¶ 41
ASSOCIATE CHIEF JUSTICE LEE, concurring in part and concurring in the judgment:
¶ 42 This case presents important questions of interpretation under
¶ 43 A threshold question is the meaning of the constitutional phrase, “employment . . . in the state‘s education systems.” The plaintiffs cite dictionary definitions of “employ” that encompass the mere provision of service to something or someone. And they contend that Board members have “employment” in the “state‘s education systems” because they make core contributions to those systems. The lieutenant governor‘s view of “employment” is different. He says that this is a legal term referring to a formal relationship with an employer. And he contends that Board members are not legally employed by the “state‘s education systems” because they have no employment relationship with a school or other traditional component of our education system.
¶ 44 The majority rightly sides with the lieutenant governor on this question. And it does so, to its credit, by acknowledging some shortcomings of dictionaries in resolving the sort of question presented here, and by turning to corpus linguistic analysis to fill in the gaps. Supra ¶¶ 18–25. I endorse this move wholeheartedly.1 And I concur in the court‘s
¶ 45 That conclusion resolves a threshold question of ambiguity under
¶ 46 I write separately because I have some trouble with the court‘s assertions of ambiguity as a basis for resolving this case. I again agree with the court‘s threshold interpretation of the scope of the meaning of “employment.” But that determination is not sufficient to resolve the case. And the court falls short in its further attempts to identify a clear basis for its disposition.
¶ 47 In my view the majority opinion falls short in three respects. First, the majority never articulates a standard of deference under its stated presumption of constitutionality. It simply announces the presumption and notes that it calls for a measure of deference. In applying the presumption and citing cases in support of it, the court effectively identifies a wide range of different levels of deference. This is also problematic. Without a stated standard of deference we cannot decide whether there is an “ambiguity” sufficient to sustain a presumption of constitutionality.
Cite as: 2019 UT 57
LEE, A.C.J., concurring in part and in judgment
¶48 Second, the majority never articulates a governing standard for judging whether someone would qualify as having “employment . . . in” an organization. It just cites a range of standards and says that means there is ambiguity. Without a stated standard I do not see how we can judge whether a person could be deemed to have “employment . . . in” a given organization (or even how much ambiguity there is in answering that question).3 I concede that the question of the appropriate standard may be difficult to fully resolve on the briefing and record before us. But we need to at least define the standard we would use to determine whether Board members have an “employment” relationship with some entity before we can conclude that there is ambiguity sufficient to turn to a presumption of constitutionality.
RICHARDS v. COX
LEE, A.C.J., concurring in part and in judgment
¶49 Third, the majority never examines the question of what qualifies as a part of “the state‘s education systems.” This is a crucial question. Even though there may be some ambiguity about whether members of the Board of Education have “employment” in some state body, I think it‘s clear that they
I
¶50 The majority hangs its hat on an ambiguity in the meaning of the notion of a person‘s “employment” in the “state‘s education systems.” It cites a series of different tests for assessing a person‘s employment relationship, identifies a “general pattern” in these tests, and ultimately concludes that it is not clear whether “Board members” have an employment relationship with “the state‘s education systems” under the governing tests. Supra ¶¶ 26-30, 37-38. In light of these ambiguities, the court falls back on a presumption of constitutionality, holding that SB 78 withstands constitutional scrutiny because there is a degree of ambiguity in whether Board members are people who have “employment” in the “state‘s education systems.” Supra ¶¶ 39-40.
Cite as: 2019 UT 57
LEE, A.C.J., concurring in part and in judgment
¶51 I have some trouble with this line of analysis. I find too much ambiguity in the court‘s assertion of ambiguity—or, in other words, insufficient transparency in the court‘s articulation of (a) the degree of ambiguity sufficient to trigger deference to the legislature, (b) the standard that would apply in determining whether a Board member has an “employment” relationship, and (c) what counts as part of the “state‘s education systems.” I highlight each of these concerns below, along with some thoughts on how I would approach each issue.
A
¶52 The linchpin of the court‘s opinion is the presumption of constitutionality.5 But the presumption is not articulated with any specificity. Nowhere does the court identify the degree of ambiguity that is sufficient to trigger the presumption of constitutionality, or, in other words, the level of deference we owe to the legislature.
¶53 At one point the majority says that all “reasonable doubts” should be resolved in favor of constitutionality. Supra ¶ 39. But the court never seeks to define what we mean by a “reasonable doubt.” And it compounds the confusion by citing cases that call for deference ranging from “some deference” on one hand to “great deference” or “significant . . . deference” on the other. Supra ¶ 39. The court‘s ultimate holding seems to turn on yet another standard. In upholding SB 78 the majority says that there is “no real proof” that the lieutenant governor‘s view of the statute “was incorrect.” Supra ¶ 40.
RICHARDS v. COX
LEE, A.C.J., concurring in part and in judgment
¶55 If this case turned on a statement of the applicable standard of deference I would press for a clarification of the governing standard. For reasons stated below, however, I do not think this case turns on a precise statement of the presumption of constitutionality. Instead I think we can resolve this case by concluding that members of the Board of Education are not part of the “state‘s education systems.” I just flag this issue to highlight the need for us to reach it in some future case.
B
¶56 The majority also stops short of articulating a standard for assessing the existence of an “employment” relationship. It takes a step in the right direction in concluding that “employment” under Article X involves more than a vague contribution or provision of service. See supra ¶ 25. But the conclusion that the constitutional reference to “employment” in the state‘s education system requires the existence of a formal legal relationship still leaves open the question of what it takes to establish such a relationship. And the court never answers that question. It never establishes a governing test for assessing the existence of an employment relationship. Instead it cites a range of possibly applicable legal standards—“myriad definitions” of the notion of employment and a series of “artful tests” for assessing whether there is an employment relationship. Supra ¶¶ 26-31. The failure to pin down a legal standard, moreover, is cited as the basis for the court‘s determination of ambiguity—ambiguity sufficient to sustain deference to the legislature. See supra ¶ 31 (citing the existence of “myriad definitions and artful tests” as a basis for the conclusion that there is ambiguity as to the meaning of the constitutional language).
Cite as: 2019 UT 57
LEE, A.C.J., concurring in part and in judgment
¶57 This too is problematic. I don‘t think we can say that there is “ambiguity as to what was intended by the term employment” because we stop short of identifying a controlling legal standard for the term “employment.” The court never says it is impossible to articulate a governing standard of “employment,” or that we can‘t decide whether Board members have an employment relationship with the “state‘s education systems.” It just says that this area of law is a difficult one, and that the employment status of Board members is unclear. Fair enough. But the fact that employment status is often unclear doesn‘t mean that it is necessarily unclear here. And I don‘t think we can say that the question of the employment status of Board members is a matter of significant ambiguity until we do our level best to articulate a governing legal standard.
¶58 The court takes a step in that direction in citing a common law “right to control” test that incorporates multiple factors. See supra ¶ 26 (citing 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)). It notes that this test has been viewed as a “default” standard that applies “in the absence of a statutorily provided definition of ‘employee.‘” Supra ¶ 26 (citing Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992)). Yet the court stops short of embracing this test as the governing standard for “employment” under the Utah Constitution. Instead it states that “some courts have endorsed an ‘economic realities test‘” that is aimed at assessing the “economic dependence of the alleged employee” on the employer, supra ¶ 28 (quoting Rubinstein, supra, at 626) (citing Nowlin v. Resolution Tr. Corp., 33 F.3d 498, 505 (5th Cir. 1994)), and that others “apply some hybridized form of both tests that centers on the notions of control and economic dependency,” supra ¶ 29.
¶59 Ultimately, the majority declines to select a test to guide the inquiry into employment status under the Utah Constitution. It just notes “the central role that control and direction play in guiding and defining” the inquiry, while also indicating that “economic
RICHARDS v. COX
LEE, A.C.J., concurring in part and in judgment
¶60 Despite the absence of any controlling legal test the court nonetheless suggests that Board of Education members may be “separate from employees” under the “general pattern of common usage” of the legal notion of “employment.” Supra ¶ 38. It bases that conclusion on a series of propositions: Board members “have no masters within the state‘s education systems,” “they are not under contract with the state‘s education systems,” “they have no controllers within the state‘s education systems,” and “their compensation is remitted not by the state‘s education systems but by Utah‘s Department of Administrative Services.” Supra ¶ 38. This conclusion is hedged by the ultimate assertion of “a certain level of ambiguity” on the question whether Board members qualify as having employment in the state‘s education systems. But the above premises seem to be the central grounds for the majority‘s determination of ambiguity.
¶61 I disagree with this mode of analysis. I cannot see how we can state grounds for a possible conclusion that Board members are not employees without first making an attempt at a standard for judging whether they are employees. The court effectively alludes to a possible standard in several places in the opinion. But without a statement of a governing standard—or at least the minimum criteria for employment status—I do not see how we can say whether Board members can qualify, or even whether there is ambiguity as to whether they qualify.
¶62 I would at least attempt to identify some minimal criteria for employment status. And I would then seek to apply them to the facts of the case to determine whether Board members qualify.
Cite as: 2019 UT 57
LEE, A.C.J., concurring in part and in judgment
¶63 The court goes astray, in my view, in suggesting one possible criterion—that only lower-level, ministerial workers can qualify as having “employment” in an organization. See supra ¶ 36 n.13.6 I don‘t doubt that we sometimes speak of “employees” as those occupying lower-level, ministerial positions. We use the term in that sense when we are distinguishing “employees” from “management,” or the like. In that sense, moreover, I don‘t doubt that Board members are not employees—they are not ministerial workers but the ultimate in upper-level management. Yet I‘m not comfortable concluding that they therefore cannot qualify as having “employment” in any organization. Workers who fulfill upper-level management roles and thus do not report to (nor are controlled by) any other individuals seem nonetheless to qualify as having “employment” in the sense that seems relevant here—in that they are not outsiders with an independent contractor status. The majority‘s own analysis suggests as much. At one point, the court cites the Utah Revised Business Corporation Act, which explicitly designates corporate officers as employees.
¶64 For these reasons I think we need to identify a governing standard before opining on whether Board members have “employment . . . in” some state entity. I concede that the briefing and arguments before us do not point clearly to a single standard. But I don‘t think the solution to this problem is to cite a point of ambiguity and turn to a presumption
RICHARDS v. COX
LEE, A.C.J., concurring in part and in judgment
¶65 I see no need to do that here, however. We can avoid this question if we can conclude that Board members have no legal relationship with an entity that is part of the “state‘s education systems.” This highlights a final concern with the majority opinion.
C
¶66 Members of the Board of Education may well have employment somewhere within the state government. The majority never says otherwise. Instead its analysis is focused on the lack of control by or a contract or compensation from “the state‘s education systems.” See supra ¶ 38.
¶67 This underscores my final concern: The court nowhere seeks to define “the state‘s education systems.” And without a definition of that term, there is no logical way for the court to conclude that the undefined “systems” do not compensate, contract with, or control the members of the Board.
¶68 The majority seems to be suggesting that Board members may not qualify as having employment with any entity—even the state government in general. I‘m skeptical of that proposition for reasons noted above. See supra ¶ 63. But the court should openly embrace this premise if that is the basis for its decision. Without such a premise the court‘s opinion seems to be missing a step. We cannot properly say that “the state‘s education systems” do not compensate, control, or contract with members of the Board unless we define “the state‘s education systems.”
¶69 For the above reasons I do not think the majority has identified an adequate basis for resolution of this case. I concur in the judgment of the court, however, because I agree with the threshold premise that “employment” requires a formal legal relationship with an employer and because I conclude that members of the Board of Education have no such relationship with “the state‘s education systems.” I reach that conclusion because I conclude that the Board of Education is not part of “the state‘s education systems” as that term is used in the Utah Constitution.7
Cite as: 2019 UT 57
LEE, A.C.J., concurring in part and in judgment
¶70 Article X, section 1 says that “[t]he Legislature shall provide for the establishment and maintenance of the state‘s education systems.” And the only entities it lists as included in the “state‘s education systems” are a “public education system” and a “higher education system.” Section 2 of article X then goes on to provide that “[t]he public education system shall include all public elementary and secondary schools and such other schools and programs as the Legislature may designate,” and that the “higher education system shall include all public universities and colleges and such other institutions and programs as the Legislature may designate.” So all the listed entities that are part of the “state‘s education systems” are schools, colleges, and universities.
RICHARDS v. COX
LEE, A.C.J., concurring in part and in judgment
¶71 The listed
Cite as: 2019 UT 57
LEE, A.C.J., concurring in part and in judgment
¶72 This conclusion is also reinforced by the noscitur a sociis canon of construction as applied to another clause of article X, section 8—the clause referring to “employment, admission, or attendance in the state‘s education systems.” The terms “admission” and “attendance” reinforce the notion that the “state‘s education systems” involve entities that provide education to students. Students seek “admission” and “attendance” in schools or similar entities. Those terms would not make sense as applied to an entity that merely makes policy for the operation of schools. We commonly speak of a person seeking “admission” or “attendance” in a school, university, or college. Those words, however, are not associated with a policymaking body like a Board of Education.10 And that reinforces the conclusion that “the state‘s education systems” encompass schools, colleges, universities, and similar programs that provide education directly to students.11
RICHARDS v. COX
LEE, A.C.J., concurring in part and in judgment
¶73 With
Cite as: 2019 UT 57
LEE, A.C.J., concurring in part and in judgment
¶74 Even if the Board of Education could be brought within the “state‘s education systems” as defined in article X, that article limits the “state‘s education systems” to those schools, institutions, and programs that the legislature designates.
¶75 There is a significant sense, of course, in which the Board of Education affects state education policy. But I do not see how that renders the Board a part of the “state‘s education systems.” This argument proves too much, as it would sweep in not just the Board but also the legislature—which also affects education policy but cannot be thought to be subject to any constitutional bar on partisan elections.
¶76 Because I believe that the Board of Education does not fall within the “state‘s education systems,” I would hold that Board members do not enjoy “employment . . . in the state‘s education systems.” Thus they are not subject to article X, section 8‘s prohibition on partisan or religious tests as a condition of employment. I view this as a more transparent way to reach the same decision the majority reaches.
Notes
(continued...) But see WILLIAM SHAKESPEARE, CYMBELINE, KING OF BRITAIN act 3, sc. 5, ll. 2084–91 (Cloten requesting the services of Pisanio for pay and under direction: “do me true service, undergo those employments wherein I should have cause to use thee with a serious industry, that is, what . . . I bid thee do, to perform it directly . . . thou shouldst neither want my means for thy relief.” (emphases added)); WILLIAM SHAKESPEARE, THE TRAGEDY OF KING LEAR act 2, sc. 2, ll. 1199–1202 (Kent imploring Cornwall not to punish a servant of the King: “I serve the King; on whose employment I was sent to you. You... show too bold malice against the grace and person of my master . . . .” (emphasis added)); WILLIAM SHAKESPEARE, MUCH ADO ABOUT NOTHING act 2, sc. 1, ll. 644–52 (Benedick offering his services to Don Pedro: “Will your grace command me any service to the world‘s end? I will go on the slightest errand now . . . . You have no employment for me?“). The majority is skeptical of this approach and conclusion. It states that it “cannot get on board with [my] approach” because my approach “requires us to declare that the State Board of Education . . . is not a part of the state‘s education systems.” Supra ¶ 3 n.5. Yet the majority offers no constitutional analysis to give credence to its concern. It makes no attempt to engage with the constitutional text and it offers no response to any of the points set forth in my opinion. Instead it just proffers a gut-level intuitive objection—a bald assertion that “the head of much of the state‘s education systems” must be “a part of the state‘s education systems.” Supra ¶ 3 n.5. But this falls short in at least two respects. First, it is circular. The majority is in no position to claim that the State Board of Education is “the head of much of the state‘s education systems” without first defining what constitutes “the state‘s education systems.” Second, the simple answer to the majority‘s concern is that the text of the constitution defines “the state‘s education systems” to the exclusion of the State Board of Education. I have laid out a basis for that conclusion above, and the majority has offered no opposition to my analysis. Perhaps my reading doesn‘t align with the majority‘s gut intuition. But that is not and cannot be the relevant constitutional inquiry. See supra ¶ 13 (citing Neese v. Utah Bd. of Pardons & Parole, 2017 UT 89, ¶ 95, 416 P.3d 663) (stating that we interpret the constitution in accordance with its “original public meaning“); supra ¶ 18 (noting that our intuition about the meaning of language is “fallible“) (quoting State v. Rasabout, 2015 UT 72, ¶ 54, 356 P.3d 1258 (Lee, A.C.J., concurring)).Thus, Malvolio, upon discovering the letter that would gull him in his mistress‘s garden, exclaims, “What employment have we here?” Twelfth Night, Act 1, sc. 5, l. 80. In his scene with the gravedigger, Hamlet says: “The hand of little employment hath the daintier sense.” Hamlet, Act 5, sc. 1, ls. 65-66. Made to be a fool in the forest, Falstaff confesses: “See now how wit may be made a Jack-a-Lent when ‘tis upon ill-employment.” The Merry Wives of Windsor, Act 5, sc. 5, ls. 126-127. Valentine asks the Duke for pardon of his exiled men: “They are reformed, civil, full of good, and fit for great employment, worthy Lord.” Two Gentlemen of Verona, Act 5, sc. 4, ls. 154-155. And Bolingbroke accuses Mobray [sic] to King Richard thus: “Look what I speak, my life shall prove it true: That Mowbray hath received eight thousand nobles in name of lendings for your highness’ soldiers, the which he hath detained for lewd employments, like a false traitor and injurious villain.” Richard II, Act 1, sc. 1, ls. 87-91.