Spencer J. COX, in his official capacity as Lieutenant Governor for the State of Utah, Petitioner, v. The Honorable Claudia LAYCOCK, in her official capacity as District Court Judge in the Fourth Judicial District, Millard County, State of Utah, Respondent. Jim Dyer, Steve Maxfield, T.J. Lovato, Scott Blackburn, Russell Jones, Wendy Leathum, and Todd MacFarlane, Third-Party Cross-Petitioners, v. Norma Brunson, in her official capacity as Millard County Clerk; The Honorable Claudia Laycock, in her official capacity as District Court Judge in the Fourth Judicial District, Millard County, State of Utah; and Spencer J. Cox, in his official capacity as Lieutenant Governor for the State of Utah, Third-Party Cross-Respondents.
No. 20140764
Supreme Court of Utah
Jan. 30, 2015
2015 UT 20
CONCLUSION
¶ 56 We conclude that the district court erred when it permitted 2 Ton to include attorney fees and costs in the amount of its lien claim. Thus, 2 Ton‘s amended and second amended notices of lien were invalid. But 2 Ton‘s original notice of lien was valid. The Thorgaards’ notice of release of lien and substitution of alternate security was timely recorded and properly referenced 2 Ton‘s original notice of lien. Because the Thorgaards complied with all statutory requirements, the district court erred in refusing to release Lot 30 from the lien. Yet because the Thorgaards stipulated to the accuracy of the original lien claim, 2 Ton, as the prevailing party, was entitled to recover its costs and a reasonable attorney fee award. We hold that the district court must recalculate that award after considering the effect of the errors on the fees incurred by both parties.
Having recused herself, Justice DURHAM does not participate herein. District Judge KEITH A. KELLY sat.
Brent M. Johnson, Salt Lake City, for respondent.
Steven Maxfield, Kanosh, Utah, for real party in interest pro se.
Dwight G. Beckstrand, Kanosh, Utah, for real party in interest Jim Dyer.
Kathleen M. Liuzzi, Salt Lake City, for real party in interest James I. Withers.
Todd MacFarlane, Kanosh, Utah, for real parties in interest T.J. Lovato, Russell Jones, Wendy Leathum, Scott Blackburn, Todd MacFarlane.
Richard Waddingham, Delta, Utah, for real party in interest Millard County.
Associate Chief Justice NEHRING authored the opinion of the Court with respect to Parts I, IV, and VI, in which Chief Justice DURRANT, Justice DURHAM, Justice PARRISH, and Justice LEE joined, and the opinion of the Court with respect to Part V, in which Chief Justice DURRANT, Justice DURHAM, and Justice PARRISH joined, and the opinion of the Court with respect to Part III, in which Justice DURHAM and Justice PARRISH joined. Associate Chief Justice NEHRING authored a dissent with respect to Part II, in which Justice PARRISH joined. Justice LEE authored the opinion of the Court with respect to Part II of his opinion, in which Chief Justice DURRANT and Justice DURHAM joined, an opinion dissenting in part, in which Chief Justice DURRANT joined, and concurring in part with respect to Part III of his opinion.
Justice NEHRING, opinion of the Court:
INTRODUCTION
¶ 1 This matter comes before us by a petition for extraordinary writ filed by Utah Lieutenant Governor Spencer Cox regarding the Republican primary election for Millard County Commissioner Seat A. The lieutenant governor challenges an August 14, 2014 district court order that set aside the election and ordered the Millard County Clerk to hold a new election as soon as possible.
¶ 2 In an order issued September 5, 2014, we granted the lieutenant governor‘s petition and affirmed in part and vacated in part the district court‘s order. We affirmed that portion of the order that set aside the election. However, we vacated the part of the district court order requiring the Millard County Clerk to hold a new election. Recognizing that the election code does not address the specific circumstances presented here, we concluded that it was not the intent of the legislature that a political party be without a candidate on the general election ballot when the primary election has been set aside. We therefore looked to the most analogous provisions of the Code to guide us.
BACKGROUND
¶ 3 On June 24, 2014, Millard County held its Republican primary election for the position of County Commissioner Seat A. Mr. Dyer challenged Mr. Withers, the incumbent. According to Mr. Dyer, the unofficial vote count on the evening of June 24, 2014, yielded 1,004 votes for Mr. Dyer and 1,003 votes for Mr. Withers. The official canvass was conducted on July 1, 2014, at which Mr. Dyer alleged the County Clerk‘s office produced additional ballots that had not previously been disclosed to the candidates. The canvass tally resulted in 1,014 votes for Mr. Withers and 1,009 votes for Mr. Dyer, and Mr. Withers was declared the winner.
¶ 5 The county commissioners met the same day to sit as the official canvassing board. Mr. Withers sat on the canvassing board in his official capacity as a county commissioner. The board discussed the recount, heard Mr. Dyer‘s arguments, and took public comments. In the end, the three-member canvassing board voted to certify the clerk‘s count and declared Mr. Withers the winner.
¶ 6 On July 16, 2014, Mr. Dyer together with concerned voters T.J. Lovato, Russell Jones, and Wendy Leathum (collectively, Voters)1 filed a petition under
¶ 7 On August 1, 2014, the district court held a hearing on the matter in which Mr. Dyer, the Voters, and Mr. Withers were present and represented by counsel. Millard County Clerk Brunson also appeared as a witness.
¶ 8 The district court issued its Memorandum Decision, Ruling, and Order on August 14, 2014. At the outset, the court noted that “petitioners had probably filed this case against the wrong respondent.” Nonetheless, the court heard and ruled on the case because neither party raised the issue of improper parties. The court discussed each of Mr. Dyer‘s allegations in turn and ultimately concluded that “the validity of this election cannot be established.” The court determined that at least seven ballots were incorrectly counted and one voter was prevented from legally voting; therefore, because only five votes separated the candidates, the eight votes in question were sufficient to grant relief. The court explained that it could not determine for whom those illegal votes had been cast, and thus could not ascertain which candidate received the highest number of votes in order to declare a winner. Instead, the district court set aside the election results and ordered the county clerk to organize a new election immediately. Neither party appealed the district court‘s order.
¶ 9 On August 26, 2014, the lieutenant governor filed a petition for extraordinary writ with this court challenging the district court order. The lieutenant governor petitions this court because he asserts that, as chief elections officer for the state of Utah, he “is substantially impacted by” the district court order. And because he was not named as a party below and cannot appeal the order, he therefore contends that he has no other plain, speedy, and adequate remedy. The lieutenant governor seeks to vacate the district court order and affirm the certified results of the primary election.
¶ 10 The lieutenant governor raises three arguments in his petition. First, he contends that the district court did not have jurisdiction to adjudicate Mr. Dyer‘s petition due to a lack of standing. Second, the lieutenant governor alleges that Mr. Dyer‘s challenge did not meet the statutory requirement for election contests because the lieutenant governor reads the statute to “require[] proof” of a different result “if you added or subtracted the actual votes.” He asserts that because the district court could not determine for whom the erroneous votes were cast, there is no proof that the illegal votes would have changed the result. Thus, in the absence of a final determination that Mr. Dyer would have won, he argues that there can be no valid contest of the election and the district court had no basis to issue its order.
¶ 11 On September 3, 2014, Judge Laycock filed a response to the lieutenant governor asking this court to affirm the district court order. The response asserts that the district court had jurisdiction below and that it properly set aside and ordered a new election.
¶ 12 Mr. Dyer also filed a response and opposition to the lieutenant governor as a real party in interest. Mr. Dyer argues that he had standing because he was not required to name the county clerk as a party to the action below. Additionally, he asserts that the lieutenant governor is not an appropriate party to file a writ in this matter because his role as chief election officer is purely supervisory. He further argues that the lieutenant governor‘s filing of the petition amounts to improper advocacy on the part of Mr. Withers‘s candidacy.
¶ 13 Millard County and the Millard County Clerk also entered the fray, agreeing with the lieutenant governor‘s petition that the district court acted beyond its statutory authority in ordering the new election. The county and county clerk also noted that the clerk‘s office considered options for holding a new election, but that it “could not comply with the statutory deadlines imposed by Utah law.”
¶ 14 Finally, in addition to responding to the lieutenant governor, the Voters, acting through counsel or pro se, submitted a third-party cross-petition. They requested that this court affirm the district court‘s order to set aside the primary election, but alternatively requested that both candidates be included on the November general election ballot as unaffiliated candidates, even if that requires “suspend[ing] or modif[ying]” the statute “as necessary.”
¶ 15 We have jurisdiction under
STANDARD OF REVIEW
¶ 16 This matter is before us by petition for extraordinary writ under
¶ 17
ANALYSIS
¶ 18 We first consider whether to grant the lieutenant governor‘s petition for extraordinary writ challenging the district court order.
I. WE GRANT THE LIEUTENANT GOVERNOR‘S PETITION FOR EXTRAORDINARY WRIT
¶ 19
¶ 20 We conclude that the lieutenant governor had no other plain, speedy, and adequate remedy, and we therefore grant the petition. The lieutenant governor seeks relief under
II. STATUTORY APPEAL DEADLINE
¶ 21 I disagree with this court‘s holding that the district court order to annul and set aside the election “became unassailable when no appeal was taken by the parties” within the ten-day deadline set by statute.16 I would therefore reach the merits of the lieutenant governor‘s arguments on that issue.
¶ 22 The
¶ 23 Therefore, I would conclude that the lieutenant governor‘s request was not foreclosed by the statutory language declaring the office vacant at the close of the parties’ ten-day appeal deadline. Certainly election contests represent a unique form of litigation due, in part, to their time-sensitive nature. It is presumably for this reason that the legislature provided the brief ten-day window for the parties to appeal an election decision. But the issuing of a writ is an equitable power derived from our duty to prevent a “flagrant abuse of discretion.”21 To declare the district court‘s decision insulated from review curtails our constitutional power and deprives the lieutenant governor of the only remedy available to him. I also note concern about possible due process implications for individuals whose interests may be affected because they were not made parties to the action and may not have had notice or a meaningful opportunity to be heard. We have extolled “the practical utility of the flexibility of extraordinary writs in various circumstances,”22 and I believe such flexibility is warranted here.
¶ 24 I would instead evaluate the lieutenant governor‘s request under the equitable doctrine of laches. We have explained that under
III. THE DISTRICT COURT ORDER SETTING ASIDE THE ELECTION WAS PROPER
¶ 25 The lieutenant governor asserts, and the dissent agrees,26 that Mr. Dyer did not satisfy the statutory requirements for an election contest. The lieutenant governor argues that a court “cannot sustain an election contest unless it determines who the individual votes were for and how their addition or subtraction from the vote totals of the candidates would change the result.” We do not agree with this interpretation of the statute‘s election contest procedures. We hold that Mr. Dyer satisfied the requirements of the statute, and that the district court properly annulled and set aside the election.
A. Mr. Dyer and the Voters Could Properly Sustain Their Election Contest
¶ 26 The lieutenant governor claims that Mr. Dyer did not satisfy the requirements of the election contest statute. He bases his argument on a reading of
(1) The ... nomination of any person to any public office ... may be contested according to the procedures established in this part only:
(a) for malconduct, fraud, or corruption on the part of the judges of election at any polling place, or of any board of canvassers, or any judge or member of the board sufficient to change the result;
....
(d) when illegal votes have been received or legal votes have been rejected at the polls sufficient to change the result;
(e) for any error of any board of canvassers or judges of election in counting the votes or declaring the result of the election, if the error would change the result;
....
(f) when the election result would change because a sufficient number of ballots containing uncorrected errors or omissions have been received at the polls;
....
(h) when an election judge or clerk was a party to malconduct, fraud, or corruption sufficient to change the result of the election....27
The lieutenant governor reads this provision to “require[] proof that the result would have been different if you added or subtracted the actual votes.” We disagree. The statutory condition that the alleged malconduct, errors, or illegal voting be “sufficient to change the result” acts as a threshold materiality requirement. Ostensibly, the legislature believed that an election contest that cannot possibly lead to a different result does not warrant the time and attention of the court. By way of example, consider an election resulting in a 100-vote margin between two candidates. If the defeated candidate brought a challenge alleging that forty illegal
¶ 27 The lieutenant governor‘s interpretation of the statute would foreclose a challenge any time the ballots could not be opened, reviewed, and recounted.28 Under this approach, even in circumstances where there is wide-scale or egregious conduct (for example, intentional burning of ballot boxes), a defeated challenger may have no recourse because the votes could not be counted. We elect to take a more sensible approach—an approach that comports with the statute‘s plain language. We hold that a contest may move forward under
¶ 28 Additionally, this approach does not open the floodgates to election contests. Challengers remain bound by our civil pleading standards.29 Additionally, the election code itself provides a heightened pleading requirement.
¶ 29 Moreover, even with carefully prescribed instructions for election contests, the statute nowhere requires a challenger to state for whom each disputed vote was cast.32 The lieutenant governor cites
B. The District Court Properly Set Aside the Election
¶ 31 The lieutenant governor contends that the district court had no authority to annul and set aside the election under the grounds asserted by Mr. Dyer. He bases this conclusion on
¶ 32
(c)(i) After all the evidence in the contest is submitted, the court shall enter its judgment, either confirming the election result or annulling and setting aside the election.
(ii) If the court determines that a person other than the one declared elected received the highest number of legal votes, the court shall declare that person elected.
Thus, under this provision, a court may confirm the election results, annul and set aside the election, or declare a winner if one can be determined. The lieutenant governor contends that these remedies cannot be provided in all circumstances, but that they correspond to two different types of election contests under
¶ 33 We conclude that the statute does not so constrain the courts. As explained above, we read the statute to permit an election contest even if the contested votes cannot ultimately be counted, as when ballots are lost or destroyed. But neither the plain language of the text nor the structure of the provisions suggests that the statutory remedies correspond to only certain types of challenges. The legislature has empowered district courts to review evidence in a variety of election circumstances and either confirm the result or annul and set aside the election. The court must declare a winner, but only if a winner can be determined.37 Thus, on its face, the statute contemplates a situation in which the court will be unable to determine a winner. The court need not confirm an election result when it finds illegal voting has occurred but cannot count the votes.
¶ 34 The statutory structure also reinforces this understanding.38 The legislature did not divide the grounds into separate categories and specifically assign remedies based on their type. And there is no limiting language that suggests certain remedies apply only to specific contests. Rather, the structure of the statute—one provision setting
¶ 35 In the present case, the district court considered the contested votes individually and determined that seven had been illegally cast and one legal voter had been prevented from voting. The court did not go on to consider the additional ballots that had been contested because it found that eight illegal votes in a five-vote-margin election were enough to warrant setting aside the election results. It also concluded that a winner could not be determined due to the mishandling of the contested ballots. Therefore, the district court was not bound to declare a winner in such circumstances.
IV. THE DISTRICT COURT ORDER MANDATING A NEW ELECTION CONTRADICTS EXPRESS STATUTORY LANGUAGE
¶ 36 We next consider that part of the district court order mandating the Millard County Clerk to hold a new primary election. Because we conclude the district court acted in contravention of the statute, we find that the court abused its discretion and reverse that portion of the order.
¶ 37 The lieutenant governor challenges the district court‘s order to hold a new election because he argues that the statutory language does not authorize a court to order a special election. In its response to the lieutenant governor‘s petition, the district court acknowledged that the “election statutes seemingly do not answer the question of what should or must happen once an election is set aside. The statutes do not provide a remedy beyond the election being invalidated.” The court asserted, therefore, that absent further court action, both the candidates and the voters of Millard County would be left without an adequate remedy. Citing the court‘s equitable power, the district court explained that it ordered a new election as a means to provide relief to all parties.
¶ 38
¶ 39 Recognizing that the district court sought to fashion the most appropriate remedy given the circumstances, we nonetheless hold that by ordering the new election the district court contravened the dictates of the election code. This mistake of law constituted an abuse of discretion warranting extraordinary relief; we therefore reverse that part of the district court order.
V. IN THE ABSENCE OF CLEAR STATUTORY DIRECTION, WE LOOK TO ANALOGOUS PROVISIONS TO CARRY OUT THE INTENT OF THE LEGISLATURE
¶ 40 Having affirmed annulment of the election, our task is not complete. We have repeatedly asserted that “this Court‘s primary responsibility in construing legislative enactments is to give effect to the Legislature‘s underlying intent.”42 Our duty is directed by the statute‘s “plain language, in light of the purpose the statute was meant to
¶ 41 This case, however, does not present a situation of vague or ambiguous statutory language. Instead, the Code is silent regarding these circumstances. There is no provision in the election code that describes how to fill a candidate vacancy in the case of an annulled primary election,45 and the limited grounds under which a special election can be held do not apply here.46 We conclude, however, that the legislature did not intend the vacancy resulting from an annulled primary to continue in perpetuity. We therefore look to analogous provisions within the election code to carry out the legislature‘s intent.
¶ 42 From the outset, we emphasize that we do not undertake such an endeavor lightly. Our task is to seek the intent of the legislature, not to substitute our own wisdom in its stead.47 To that end, when a statute is silent regarding particular circumstances and we determine that such a gap was not the intent of the legislature, “we must determine the best rule of law to ensure that the statute is applied uniformly.”48 We “analyze the act in its entirety and harmonize its provisions in accordance with the legislative intent and purpose.”49
¶ 43
¶ 45 The Code‘s midterm vacancy protocols are instructive as well. There, the legislature set forth various procedures for filling a midterm vacancy depending on the timing of the vacancy.53 If the vacancy arises well before the primary election, the procedure parallels a regular election—a nominated party candidate or a qualified independent candidate can run in the general election.54 But if the vacancy arises closer to the date of the general election, the procedures reflect the expedited timeline.55 The statute even permits a party to summarily place an individual in office for the remainder of the unexpired term.56 It would make little sense for the legislature to so empower a political party for midterm vacancies and yet leave the party unable to name its own candidate for the general election ballot. If political parties can “summarily certify” a candidate for the general election ballot even before the primary election date,57 it stands to reason that a party may summarily certify a candidate when the primary itself is annulled.
¶ 46 We therefore determine that the legislature did not intend that a political party be entirely foreclosed from nominating its candidate in advance of the general election when the primary has been set aside through no fault of the party. We conclude that
VI. THE CROSS-PETITION FOR EXTRAORDINARY RELIEF IS DENIED AS PROCEDURALLY IMPROPER
¶ 47 The Voters also submitted a third-party cross-petition for extraordinary relief, requesting this court to order that both candidates be placed on the November general election ballot. We deny the cross-petition as an improper means of petitioning this court. As noted above, a petition for extraordinary writ is appropriate only when “no other plain, speedy and adequate remedy is available.”58 When the petitioner is a party to the action below and seeks alternate relief from the district court order, there is
¶ 48 Cross-petitioners were all parties to the action below. As such, they possessed a right of appeal from the district court order. Should they seek relief contrary to that order, the appropriate means is through an appeal, not through an extraordinary writ to this court.61 The cross-petition is therefore denied.
CONCLUSION
¶ 49 We grant the petition because the lieutenant governor could not appeal the district court‘s decision and did not have another plain, speedy, and adequate remedy. We uphold the district court order to annul and set aside the election. But we determine that the court exceeded its statutory authority when it ordered the county to hold a new election, and we therefore vacate that part of the order. Instead, by looking to analogous provisions within the election code, we determine that the legislature did not intend for the party candidacy to sit vacant before the general election. Thus, we ordered the candidacy to be filled in accordance with the procedures found in
Justice LEE, opinion of the Court in part:
¶ 50 I concur in the judgment of the court but write separately to identify some points of disagreement with elements of the court‘s analysis. For reasons explained below, I would not affirm the merits of the district court‘s decision annulling and setting aside the election in question under
I. PLEADING AND PROOF IN AN ELECTION CONTEST
¶ 51 First, I disagree with the court‘s conclusion that an election contest can be sustained “even if the contested votes cannot ultimately be counted, as when ballots are lost or destroyed.” Supra ¶ 33. Under the governing statutory provisions as I understand them, it is the election contest petitioner‘s burden to plead and prove that any “illegal votes” that were cast would have made a difference in the election. See
¶ 52 That premise seems embedded in the operative terms of the code. The code lists two categories of election contest claims: (a) those in which the election contest petitioner must establish that there were errors (in fraud, corruption, illegal votes counted, legal
¶ 53 The pleading provisions of the code reinforce this conclusion. To assert a “cause of contest” in a case in which “the reception of illegal votes” is the basis for challenging a primary election, a petitioner must “state generally that ... illegal votes were given to a person whose election is contested, which, if taken from him, would reduce the number of his legal votes below the number of legal votes given to some other person for the same office.”
¶ 54 The election contest petitioner must accordingly do more than “challenge[] enough votes to meet or exceed the margin of victory.” Supra ¶ 27. He must instead make allegations that go to the actual impact of alleged illegal votes on the outcome of the election—as to illegal votes “given to a person whose election is contested” that would “reduce the number of his legal votes below the number of legal votes given” to the petitioning candidate, or as to rejected legal votes “for” the petitioning candidate that “would raise the number of legal votes for that person” above those cast for the person whose election is contested.
¶ 55 To me, this makes sense as a legal and logical matter. I see no basis in law or logic to assume that all illegal ballots in question (or rejected legal ballots) would have been cast in favor of the candidate filing the election petition. And the contrary presumption (in favor of the candidate whose election is contested) is premised rather straightforwardly in the burden of proof that
¶ 56 The evidentiary standards in the code seem to me to further undermine the majority‘s approach. Under
The court may not take or receive evidence of any of the votes described in Subsection (2)(c), unless the party contesting the election delivers to the opposite party, at least three days before the trial, a written list of the number of contested votes and by whom the contested votes were given or offered, which he intends to prove at trial.
¶ 57 Final confirmation of this conclusion appears in section 404. That section prescribes the procedures governing the court in an actual election contest proceeding under the election code. It indicates that the “court shall meet at the time and place designated to determine the contest,” and, when “necessary for the court to inspect the ballots of any voting precinct in order to determine any election contest,” it directs the court to “open and inspect the ballots in open court in the presence of the parties or their attorneys.”
¶ 58 It is no answer, in my view, to assert that in this case “the contested votes cannot ultimately be counted.” Supra ¶ 33. That proposition was adopted by the district court and endorsed by the parties in the case before us on this petition for extraordinary writ. See Mem. Decision 11–12 (concluding that the court‘s “choices are limited” because the court could not “determine who received the highest number of legal votes“); Mem. Resp. & Opp. to Pet. 3 (noting that “because of how the contested ballots had been handled—co-mingled with all the other absentee ballots ... it would not be possible to identify and find those ballots to determine how they had been cast“). The premise, as far as I can tell, is that the contested ballots were comingled with other ballots, in a manner rendering it impossible for the district court to “open and inspect the ballots in open court” in the course of “determin[ing] the
¶ 59 By statute, the district court has authority to “annul[ ] and set[ ] aside the election.”
II. LACK OF AN APPEAL AS VOIDING A CERTIFICATE OF PRIMARY ELECTION
¶ 60 For the above reasons, I disagree with the grounds for the court‘s decision to affirm the district court‘s decision annulling and setting aside the election in question on its merits. Yet I would still affirm the decision of the district court on the basis of a procedural bar in the election code. On this point, moreover, a majority of the court agrees.
¶ 61 Under
¶ 62 For these reasons, and for others set forth in the majority opinion of Associate Chief Justice Nehring, supra ¶¶ 36–39, I would also hold that the district court erred in ordering a special election. As Justice Nehring indicates, the election code nowhere empowers the court to order a special election. And a decision ordering government officials to conduct such an election without affording them notice and an opportunity to be heard would fail as a matter of procedural due process.68 In any event, the impact of the lack of an appeal is clear: The “certificate of election ... is void, and the office is vacant.”
¶ 63 Justice Nehring arrives at the same ultimate conclusion—affirming the decision setting aside the election but reversing the decision ordering a special election. But he rests his decision on the merits of the underlying election contest, while deeming section 406(2) inapplicable. The proffered grounds for avoiding section 406(2), however, misunderstand my basis for invoking this provision, and provide no basis for ignoring its terms.
¶ 64 I have no quarrel with the proposition that the lieutenant governor acted with “diligence” in submitting his petition for extraordinary writ. Supra ¶ 24. Thus, I am on board with the conclusion that the petition was timely (and not barred by the doctrine of laches), and agree that we should “reach the merits” of the lieutenant governor‘s claims. Supra ¶ 24. My point is simply that in addressing the merits, we should give effect to the governing provisions of the election code, including
¶ 65 I am not suggesting that this provision “insulate[s]” the district court‘s decision “from review.” Supra ¶ 23. Instead, I would simply hold that in exercising our extraordinary writ power, we are no less bound to follow the law. A petition for extraordinary relief invokes this court‘s “original jurisdiction.” See
¶ 66
III. THE DOCTRINE OF ABSURDITY
¶ 67 When a certificate of election becomes “void” under
¶ 68 As the majority indicates, this provision is not technically implicated in this case. Supra ¶ 43. By its terms, this section does not apply because this is not a case in which there is a “candidate vacancy” precipitated by death, resignation due to disability, or disqualification by an election officer for filing or nomination violations.
¶ 69 The question presented, accordingly, is how to deal with what appears to be a gap in the code. One possible approach, and the one that would be the ordinary course for a court, is for us to stand down—to do nothing, and treat the gap as one for the legislature (and not this court) to fill going forward. This is the ordinary course because it respects the work product of the legislature—the statutory text. In most all cases, it is not the court‘s job to fill in the gaps it finds in legislation. That is most always a legislative function, and thus not one for us.69
¶ 70 With this in mind, I disagree with the line of cases cited approvingly in the majority opinion. See supra ¶ 42 n. 48. I would not conclude, as these courts seem to, that “when a statute is silent” on a particular issue, it is our role to fill in the gap with our best sense of the legislature‘s “intent” on the omitted matter. Supra ¶ 42 n. 48 (citing cases). Instead of imagining the legislature‘s intent in such circumstances, in an effort to “determine the best rule of law to ensure that the statute is applied uniformly,” supra ¶ 42 n. 48 (quoting Mariemont Corp. v. White City Water Improvement Dist., 958 P.2d 222, 226 (Utah 1998)), we should generally treat the omitted case as simply omitted from the legislation.69
¶ 71 Yet there is a narrow, limited exception to this rule. The exception is the doctrine of absurdity, under which we may find the text of a statute to encompass a term or condition not expressly provided by the legislature. This is strong medicine, not to be administered lightly. To respect the separation of powers and the constitutional prerogatives of the legislature, we must not substitute our views of good policy for that of the legislature. Instead, we should deem ourselves bound to follow and implement only the terms and conditions of the code except in the rare and limited circumstance in which the terms as written would lead to an outright absurdity.
¶ 72 The doctrine of absurdity is both deeply rooted and narrowly restricted. It traces its roots at least to Blackstone, who asserted that “where words bear ... a very absurd signification, if literally understood, we must a little deviate from the received sense of them.” 1 WILLIAM BLACKSTONE, COMMENTARIES *60 (emphases added). The emphasized terms in Blackstone‘s formulation highlight two points of limitation. One is the degree of absurdity. If we are to
¶ 73 Some examples from modern cases may help to illustrate the standard. In 1995, a Texas statute provided an absolute defense to all “Chapter 601 offenses” under the Texas code where the accused “produce[d] in court a motor vehicle liability policy ... that was valid at the time the offense is alleged to have occurred.”71 Read literally, this provision would have provided not just a defense for the “Chapter 601 offense” of driving without proof of insurance, but absolute immunity (by production of proof of insurance) for other “Chapter 601 offenses” such as driving on a suspended license. In State v. Boone, 1998 WL 344931 (Tex. Ct. App. June 30, 1998) (unpublished), the court avoided this absurd result. It did so by limiting “Chapter 601 offense” to the offense of driving without proof of insurance. Id. at *2–*3. Rightly so, as no rational legislator could be deemed to have supported the statutory text as written literally.72
¶ 74 The second limitation in Blackstone‘s formulation is also important. It authorizes “little” or minor deviations from the statutory text to avoid absurdities in statutory meaning. As to larger deviations, the premise is that it is more likely that a judicial override of literal statutory text may represent a mere policy disagreement, and not a correction of an unintended (and obvious) disconnect between the policy adopted by the legislature and the text it used to implement it. To minimize the risk of judicial overreach, the absurdity doctrine should be limited to cases in which there is a “non-absurd reading that could be achieved by modifying the enacted text in relatively simple ways.”73 The above-cited Texas case is a good example. Because it was “relatively simple” to read a limitation on “Chapter 601 offenses,” the Texas court was able to avoid an obvious absurdity in a manner consistent with the Blackstone limitations on the doctrine.
¶ 75 I would reach the same conclusion as the majority by application of these tenets of the doctrine of absurdity. For reasons explained by the court, it is impossible for me to imagine that any rational legislator would have supported a literal construction of the
¶ 76 I would also endorse the majority‘s adoption of the mechanism set forth in
In the Matter of the ADOPTION OF J.M.S., a minor. Jacob David Brooks, Intervenor/Appellant, v. A.S. and J.S., Appellees.
No. 20120683
Supreme Court of Utah
Feb. 6, 2015
2015 UT 35