387 P.3d 1014
Utah
2016

Frank ANDERSON, et al., Petitioners, v. Provo CITY, Respondent. Sharon Anderson, et al., Petitioners, v. Orem City, Respondent.

No. 20160632, 20160633

Supreme Court of Utah

October 27, 2016

2016 UT 50

Filed October 27, 2016

the combined fault of all other actors. Accordingly, no conflict between these statutes exists. And because the issue of whether the LRA will apply to bar recovery here is an issue that was not preserved for appeal, the district court should decide it in the first instance on remand.

¶ 40 We also note that as with Defendant‘s LRA argument, her other legislative intent and public policy arguments outlined above fail to directly address the issue before us on appeal. We granted certiorari on whether the court of appeals erred in holding that sections 78B-3-106(1) and 78B-3-107 of the Utah Code do not preclude persons in their capacities as heirs or personal representatives from bringing suit against the same persons in their capacities as “person[s] causing ... death” or as “wrongdoer[s].” The related statutes and foreign caselaw cited by Defendant speak to the separate issue of whether a tortfeasor defendant who is permitted to sue as an heir and personal representative of an estate can recover insurance money paid out as damages in a wrongful death or survival action suit.56 Defendant‘s failure to distinguish between these distinct issues—the first, an issue of statutory interpretation; the second, an issue of whether recovery is permissible in cases like the one before us—has caused undue confusion in her arguments. Though we do not reach the second issue in this appeal, the parties may raise the issue on remand.

¶ 41 For the reasons articulated above, Defendant‘s legislative intent and public policy arguments fail. They rely on a misreading of our precedent and speak to a separate issue, one that we do not address. Accordingly, we conclude that, contrary to Defendant‘s averments, the court of appeals accurately identified the legislature‘s intent when it interpreted the plain language of the wrongful death and survival action statutes.

Conclusion

¶ 42 For the foregoing reasons we hold that the court of appeals did not err when it concluded that the wrongful death and survival action statutes permit a person acting in the legal capacity of an heir or personal representative to sue him or herself in an individual capacity for negligently causing a decedent‘s death or injury. The plain language of both statutes permits such a lawsuit. Further, the literal terms of the statutes do not lead to an absurd result that would require us to modify the statutory text. And absent a statutory gap, we will not venture beyond the plain language of the statutes to rewrite them based upon public policy.

Having recused himself, Justice Pearce did not participate herein; Second District Court Judge Thomas L. Kay sat.

Frank D. Mylar, Salt Lake City, for petitioners.

Robert H. Hughes, Salt Lake City, for respondent Provo City.

Troy L. Booher, Beth E. Kennedy, Salt Lake City, for respondent Orem City.

Other Petitioners in this case are DIANE B. CHRISTENSEN, PHILIP HINKLEY, ROGER ANDREWS, JENNIFER DOUD, PAMELA JONES, ROBERT RIDGE, and BRUCE WELCH.1

Other Petitioners in this case are HANS ANDERSEN, WAYNE BURR, CLARINE DOWNS, ANGELA BRICKEY,2 PEARL MILLER, and THOMAS MILLER.

Per Curiam:

¶ 1 Petitioners are residents of Orem City and Provo City seeking to have a referendum placed on the November 2017 ballot. Despite the fact that Petitioners met the signature threshold needed to put a referendum before the voters, both Orem City and Provo City refused. The Cities concluded, in part, that the resolutions could not be referred to the voters as a matter of law.

¶ 2 Each set of Petitioners seeks relief in the form of an extraordinary writ ordering that the referenda be placed on the ballot. Petitioners filed their petitions in accordance with a provision of the Utah Election Code that provides that “[i]f the local clerk refuses to accept and file any referendum petition, any voter may apply to the Supreme Court for an extraordinary writ to compel the local clerk to do so....” UTAH CODE § 20A-7-607(4)(a) (emphasis added).

¶ 3 Utah Rule of Appellate Procedure 19(b)(5) requires a party seeking extraordinary relief to explain “why it is impractical or inappropriate to file the petition for a writ in the district court....” Petitioners have failed to carry this burden. Instead, Petitioners argue that Utah Code section 20A-7-607(4)(a) requires that they file the petition in the supreme court. According to Petitioners, “[r]equiring the Petition to be made to the Supreme Court is an implicit public policy statement by the Legislature which further establishes the urgency and irreparable harm to the voters that exists when a petition of referendum is rejected.” Petitioners ask this court to “acknowledge as a matter of law that the rejection of the [Referendum] Petition meets the requirements of urgency [under rule 19(b)(4)], and that no other plain and speedy remedy exists but to file a Petition for Writ with the state‘s high court.”

¶ 4 We have rejected the assumption on which Petitioners’ argument rests—that Utah Code section 20A-7-607 mandates that a petition be filed in this court. We have noted that section 20A-7-607 “does not limit either the remedies that can be sought or the court in which those remedies can be pursued....” Low v. City of Monticello, 2002 UT 90, ¶ 16, 54 P.3d 1153, overruled on other grounds by Carter v. Lehi City, 2012 UT 2, ¶ 15, 269 P.3d 141; Carpenter v. Riverton City, 2004 UT 68, ¶ 4 n.3, 103 P.3d 127 (noting that Utah Code section 20A-7-607 “is permissive in nature and does not designate this court as the exclusive location where relief may be sought“). While many ballot disputes will present tight timelines that will make it either impractical or inappropriate to file in the district court, that will not always be the case.

¶ 5 At oral argument, Petitioners suggested it might be inappropriate and impractical for them to file in the district court, because Utah Code section 20A-7-607(4)(b) provides that “[i]f the Supreme Court determines that the referendum petition is legally sufficient, the local clerk shall file” the referendum. Petitioners fear that this language authorizes only the supreme court to order the local clerk to place a referendum on the ballot. In other words, Petitioners worry that only this court can order the remedy they seek. We do not read these provisions of the Elections Code to restrict the district court‘s powers, and we conclude that our district courts possess the authority to provide appropriate relief in appropriate circumstances.

¶ 6 Utah Code section 20A-7-607(4) does not require Petitioners to file in this court nor does it relieve Petitioners of the need to meet the requirements of Utah Rule of Appellate Procedure 19(b)(4)-(5). Petitioners have not shouldered their burden of establishing that it would be impractical or inappropriate for them to file their petitions in the district court. We, therefore, deny these petitions without prejudice.

Notes

1
Other Petitioners in this case are DIANE B. CHRISTENSEN, PHILIP HINKLEY, ROGER ANDREWS, JENNIFER DOUD, PAMELA JONES, ROBERT RIDGE, and BRUCE WELCH.
2
Other Petitioners in this case are HANS ANDERSEN, WAYNE BURR, CLARINE DOWNS, ANGELA BRICKEY, PEARL MILLER, and THOMAS MILLER.
56
Tanski v. Tanski, 820 P.2d 1143, 1144-45 (Colo. App. 1991) (recognizing that the jurisdiction‘s wrongful death statute permits an heir to sue himself while concluding that public policy prevents the heir from recovering damages); In re Chase Estate, 44 Pa. D. & C.3d 34, 40-41 (Pa. Orphans’ Ct. 1987) (barring an heir from participating in his wife‘s estate where the heir wrongfully caused his wife‘s death, even though the heir‘s wife‘s mother acted as administrator of the estate); Aetna Cas. & Sur. Co. v. Curley, 585 A.2d 640 (R.I. 1991) (preventing an heir from maintaining suit under the jurisdiction‘s wrongful death and survival action statutes because her wrongful conduct caused the decedent‘s death and she was the sole beneficiary of the decedent‘s estate); cf. Rozewski v. Rozewski, 181 Misc. 793, 46 N.Y.S.2d 743, 745-47 (Sup. Ct. 1944) (permitting a husband whose negligence caused his wife‘s death to recover under the wrongful death statute because such recovery did not violate the jurisdiction‘s public policy).
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