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Brent D. Wride and Paul C. Burke: Legislature’s remote learning bill violates Utah Constitution

Spencer Cox should veto bill that violates the Separation of Powers Doctrine.

(Laura Seitz | Deseret News/POOL) Gov. Spencer Cox delivers his 2022 State of the State address to all Utahns, House and Senate members, Utah Supreme Court Justices, State Auditor, State Treasurer and Utah Attorney General at the Capitol in Salt Lake City on Thursday, Jan. 20, 2022.

Gov. Spencer Cox should defend fundamental constitutional principles by vetoing the recently passed House Bill 183, “In Person Learning Amendments,” which would prevent any Utah public school from shifting to remote learning without the approval of the speaker of the Utah House of Representative and the president of the Utah Senate.

This is not a column about public health policy in the midst of a pandemic; rather, this is a call for Cox to apply his veto pen to legislation that violates Utah’s Separation of Powers Doctrine by assigning executive powers to legislative officers.

Article V, Section 5 of the Utah Constitution states that “The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial.”

In the most elementary terms: The legislative branch makes laws. The judicial branch interprets them. The executive branch carries out and enforces those laws.

The Utah Constitution provides for the separation of these powers by mandating that “no person charged with the exercise of powers properly belonging to one of these [three branches of government] shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted.”

The Utah Supreme Court has explained that this Separation of Powers Doctrine applies when the “powers or functions ... [are] so inherently legislative, executive or judicial in character that they must be exercised exclusively by their respective departments.”

The Utah Supreme Court has recognized that “‘The absolute independence of the three branches of government ... has not been found entirely practicable’” and “many powers do not properly belong to a single branch.” However, enforcing the law is an inherently executive function.

This is why the speaker of House doesn’t issue speeding tickets. It’s why the president of the Senate doesn’t assign students to detention. And it’s why neither the House speaker nor Senate president may be given statutory authority to decide when circumstances warrant the closure of public schools on a daily basis during a pandemic.

The constitutional defect of House Bill 183 is that it violates our state constitution by granting legislative officers the power to interpret and enforce the statute. This gives too much power to one branch of government, and is the very danger that Utah’s Separation of Powers Doctrine guards against.

Under the Utah Constitution, the Legislature may enact laws that the executive branch can enforce and that the judicial branch can interpret without further legislative involvement. Thus the Legislature may pass laws setting standards for the opening and closing of schools. But the executive branch is responsible for implementing those laws. According to Article X, Section 3 of our state constitution, the State School Board, not the Legislature, is responsible for “the general control and supervision of the public education system.”

The Utah House of Representatives touts on its website that “The separation of powers is one of the most fundamental principles of our government.” 

Cox should defend this principle and protect both the structure and constitutional integrity of our state government by vetoing House Bill 183.

Brent Wride

Brent D. Wride is a veteran appellate attorney.  

Paul Burke

Paul C. Burke was the Utah State Bar’s Lawyer of the Year in 2019.