STEVEN DOWNS, Petitioner, v. BRYAN THOMPSON, BOARD OF COUNTY COMMISSIONERS OF UTAH COUNTY, and UTAH COUNTY, Respondents.
No. 20180696
Supreme Court of the State of Utah
Filed August 27, 2019
2019 UT 53
On Certification from the United States District Court for the District of Utah, The Honorable Dale A. Kimball, Case No. 2:17-cv-00330
This opinion is subject to revision before final publication in the Pacific Reporter
Attorneys:
J. Brady Brammer, Pleasant Grove, Steven C. Earl, Orem, for petitioner
Benson L. Hathaway, Jr., Jackie Bosshardt, Ryan R. Beckstrom, Salt Lake City, for respondents
JUSTICE HIMONAS authored the opinion of the Court in which CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, JUSTICE PEARCE, and JUSTICE PETERSEN joined.
INTRODUCTION
¶1 The United States District Court for the District of Utah certified three questions to be answered by this court: (1) “Does a
¶2 With respect to question one, we answer that a Utah state district court does not have appellate jurisdiction to review the Utah County Board of Commissioners’ decision upholding a fine levied under
¶3 We answer the second question by defining a “ballot proposition” as used in
¶4 Lastly, in response to the third question, we answer that a “ballot proposition” as used in
BACKGROUND
¶5 In April 2016, Orem City passed Resolution No. R-2016-0012, which authorized the mayor of Orem to sign a lease agreement and an interlocal cooperation agreement in connection with the implementation of the Utah Transit Authority‘s Bus Rapid Transit (BRT) program.1 In response, several citizens filed a petition for referendum against the resolution. The citizens circulated referendum packets and collected the necessary signatures for a referendum before submitting their petition to the City Recorder. The City Recorder rejected the referendum petition because the City Recorder believed Resolution No. R-2016-0012 concerned an administrative action and was therefore not subject to a referendum. The City Recorder‘s decision was upheld by the Fourth District Court. As a result, the referendum vote sought through the petition was never put on the ballot.
¶6 Steven Downs, in his role as the Public Information Officer for Orem, circulated an email—using his work email account—announcing a public meeting to discuss the BRT program with the entities charged with its implementation. This email was sent after the petition had been submitted but before all necessary signatures had been gathered. The email contained only information from opponents of the BRT referendum, invited recipients to attend a meeting held by opponents of the referendum, distributed a link to an anti-petition website, and did not contain any information summarizing arguments in favor of the BRT project. In response, Bryan Thompson, the Utah County Clerk, fined Downs $250 for violating the Political Activities of Public Entities Act—specifically,
¶7 Downs demanded a review of the fine before an impartial tribunal. In response,
¶8 We have original jurisdiction to answer these questions of state law under
STANDARD OF REVIEW
¶9 “A certified question from the federal district court does not present us with a decision to affirm or reverse a lower court‘s decision; as such, traditional standards of review do not apply.” U.S. Fid. & Guarantee Co. v. U.S. Sports Specialty Ass‘n, 2012 UT 3, ¶ 9, 270 P.3d 464 (citation omitted) (internal quotation marks omitted). “Accordingly, we merely answer the question presented, leaving resolution of the parties’ competing claims and arguments . . . up to the federal courts, which of course retain jurisdiction to decide [the] case.” Garfield Cty. v. United States, 2017 UT 41, ¶ 6, 424 P.3d 46 (alterations in original) (citation omitted) (internal quotation marks omitted).
ANALYSIS
I. UTAH CODE SECTION 20A-11-1205 DOES NOT CONVEY APPELLATE JURISDICTION ON STATE DISTRICT COURTS
¶10 The first question certified to this court is narrow in scope: “Does a Utah [state] district court have jurisdiction to review the Utah County Board of Commissioners’ decision upholding a fine levied pursuant to
¶11 We have stated that “[i]t is the essential criterion of appellate jurisdiction[] that it revises and corrects the proceedings in a cause already instituted[] and does not create that cause.” State v. Johnson, 114 P.2d 1034, 1037 (Utah 1941) (citation omitted) (internal quotation marks omitted), overruled in part on other grounds by Boyer v. Larson, 433 P.2d 1015 (Utah 1967). In this case, the “proceeding [] in a cause already instituted” is the Utah County Board of Commissioners’ decision to uphold Downs‘s fine. Id.
¶12 In Utah, jurisdiction to decide a case “derives from the Utah Constitution, state statute, or a combination of the two.” Carter v. State, 2015 UT 38, ¶ 19, 345 P.3d 737. And the Utah Constitution makes clear that “[t]he district court shall have appellate jurisdiction as provided by statute.”
¶13 Chapter 31 of the Utah County Code provides that an appeal of the Utah County Board of Commissioners’ decision can be taken in a state district court. UTAH COUNTY CODE § 31-1-5. But section 31-1-5 is a county ordinance; a county ordinance is not a state statute. Therefore, the Utah County Code cannot convey appellate jurisdiction to the district court or regulate procedures for an appeal. Section 31-1-5 pretends to powers the county does not have. Put succinctly, counties do not have the authority to grant appellate jurisdiction to state district courts.3
II. THE TERM “BALLOT PROPOSITION” AS USED IN UTAH CODE SECTION 20A-11-1205(1) INCLUDES THE ENTIRE REFERENDUM PROCESS
¶15 The next question certified to us by the federal district court involves reading several statutory provisions in conjunction with each other: “Does the term ‘ballot proposition’ as used in
¶16 Downs was fined for violating
¶17 Our primary task when interpreting these provisions is to give effect to the intent of the legislature. Harold Selman, Inc. v. Box Elder Cty., 2011 UT 18, ¶ 18, 251 P.3d 804. We “presume that the legislature used each word advisedly and read each term according to its ordinary and accepted meaning.” Boyle v. Christensen, 2011 UT 20, ¶ 27, 251 P.3d 810 (citation omitted) (internal quotation marks omitted). Additionally, “[w]herever possible, we give effect to every word of a statute, avoiding [a]ny interpretation which renders parts or words in a statute inoperative or superfluous.” Turner v. Staker & Parson Cos., 2012 UT 30, ¶ 12, 284 P.3d 600 (second alteration in original) (internal quotation marks omitted) (citing State v. Arave, 2011 UT 84, ¶ 28, 268 P.3d 163).
¶18 It is admittedly difficult to interpret the language in
¶19 The rule of the last antecedent is a canon of statutory interpretation stating that “a limiting clause or phrase . . . should ordinarily be read as modifying only the noun or phrase that it immediately follows.” Lockhart v. United States, 136 S. Ct. 958, 962 (2016) (alteration in original) (citation omitted) (internal quotation marks omitted). In Lockhart, the United States Supreme Court analyzed
¶20 The series-qualifier canon, on the other hand, provides that, “[w]hen there is a straightforward, parallel construction that involves all nouns or verbs in a series, a prepositive or postpositive modifier normally applies to the entire series.” ANTONIN SCALIA & BRYAN A. GARNER, Reading Law: The Interpretation of Legal Texts 147 (2012). The classic example involves the text of the Fourth Amendment to the United States Constitution. The relevant text reads “[t]he right of the people to be secure . . . against unreasonable searches and seizures, shall not be violated.”
¶21 We have applied this canon before and said that “[q]ualifying words and phrases are generally regarded as applying to the immediately preceding words, rather than to more remote ones.” LPI Servs. v. McGee, 2009 UT 41, ¶ 15, 215 P.3d 135 (alteration in original) (citation omitted) (internal quotation marks omitted). This is of course not an iron-clad rule as we have also said “the rule of the last antecedent does not mandate that qualifying rules and phrases only apply to the immediately preceding words; rather[,] when given a choice between the immediately preceding words and more remote words, we prefer the words closer in proximity.” Id. Such a choice is given us here and context makes clear that application of the last-antecedent canon yields the better reading of the statute.
¶22 Reading
¶23 Having determined that the term we must interpret is “referenda“—as opposed to “referenda submitted to the voters“—it seems obvious to us that a referendum encompasses the totality of the referendum process. The Election Code defines a referendum as “a process by which a law passed by the Legislature or by a local legislative body is submitted or referred to the voters for their approval or rejection.”
also understood referenda to be a process: “[T]he county clerk shall ensure that county referenda that have qualified for the ballot appear on the next regular general election ballot.”
III. A “BALLOT PROPOSITION” AS USED IN UTAH CODE SECTION 20A-11-1205(1) INCLUDES THE ENTIRETY OF THE REFERENDUM PROCESS EVEN IF THE CHALLENGED LOCAL GOVERNMENT ACTION IS LATER FOUND TO BE ADMINISTRATIVE IN NATURE AND THEREFORE NOT SUBJECT TO A REFERENDUM
¶24 The last question certified by the federal district court asks us whether “the term ‘ballot proposition’ as used in
¶25 “Article VI, section 1 of the Utah Constitution vests ‘Legislative power’ in ‘the people of the State of Utah’ and provides for its exercise through ballot initiatives and referenda.” Carter v. Lehi City, 2012 UT 2, ¶ 17, 269 P.3d 141 (quoting
¶26 Under
¶27 The local clerk‘s discretion to reject a referendum petition does not vest until the requisite number of signatures has been gathered and the completed application is submitted for approval. As we said in Taylor v. South Jordan City Recorder, “Any determination [by the local clerk] of whether the subject matter is appropriate for the initiative process is proper only after the petition has been issued, completed, and returned.” 972 P.2d 423, 424 (Utah 1998). In this case, Orem rejected the citizens’ completed petition because, in its estimation, the 2016 Resolution concerned an administrative action and was therefore not referable. But any decision made by the local clerk on the administrative/legislative nature of the subject of a referendum is subject to review by the courts. See, e.g., Baker, 2018 UT 59, ¶ 7 (citizens seeking judicial review of local clerk‘s determination that city‘s action was administrative in nature and therefore not referable).9
¶28 We take the time to recount all the steps in the referendum process because it is important to our answer to the certified question. As we have just detailed, the entire referendum process is part and parcel to the definition of “referendum.” Indeed, a referendum cannot exist in the absence of the many necessary steps taken along the way. The fact that a referendum ultimately turns out to be a doomed referendum does not alter its fundamental character throughout the process. We see no prudence in creating a twilight zone in which an action taken by citizens, in full compliance with the statutory guidelines for referenda, is not considered a referendum until later definitively proven to be legislative in nature. The opposite is the case. A referendum may be destined to ultimately fail because it pertains to an administrative action, but it nonetheless remains a referendum at every stage along the way and, therefore, a referendum in the signature gathering phase is a “ballot proposition” under
CONCLUSION
¶29 We state as matters of law in answer to the federal district court‘s certified questions that: (1) without saying anything about Utah state district courts’ original jurisdiction, Utah state district courts do not have appellate jurisdiction to review the decision of the Utah County Board of Commissioners upholding a fine levied under
Notes
Gallivan v. Walker, 2002 UT 89, ¶ 26, 54 P.3d 1069 (alterations in original) (citation omitted) (internal quotation marks omitted).The voters’ right to initiative does not commence at the ballot box: The voters’ right to legislate via initiative includes signing a petition to get the proposed initiative on the ballot. Signing a petition is inextricably connected to the voters’ right to vote on an initiative because it serves a gatekeeping function to the right to vote. Accordingly, [t]he use of . . . petitions . . . to obtain a place on the [state‘s] ballot is an integral part of [its] elective system.