Gallivan v. Walker

ing unconstitutional, his duties is it be- 1 Having disqualified himself, Associate doubly serious, and in such case the Chief Justice DURRANT does not comes duty may not be reasonably clear or participate herein, free and Justice WILKINS If doubt. it is not clear or reason- herein; does not participate Appeals Court of ably doubt, free from he should not be Judges JAMES Z. DAVIS and WILLIAM A. compelled perform a manda- THORNE sat. the act proceeding. mus

Mueller, curiam). (per 227 P. at 274 [183 I believe that our exercise of such "

authority only should occur 'when the

claimant has demonstrated that he or she has adequate

no alternative means obtaining 2002 UT 89 sought that relief clearly and is indisput- ably entitled to such relief?" Beamon v. (Jack) John GALLIVAN, W. individual; an Brown, (6th Cir.1997) 125 F.3d Gallivan, Michael D. individual; an (quoting Brown, Dacoron v. Vet.App. Pignanelli, Frank R. individual; an (1998)); see also State ex rel. Grendell v. Phyllis Sorenson, individual; an Susan Davidson, 86 Ohio St.3d 716 N.E.2d Kuziak, M. individual; an and Linda curiam) (per (stating "constitution- Dickey, individual, Sue an Petitioners, challenges al legislation normally con- sidered in an originating action in a court of pleas common rather than extraordinary an WALKER, Olene capacity her official writ action filed supreme [in the court]"). as Lieutenant Governor of the State I unsympathetic

While am not petitioners' Utah, Respondent. plight, I do not petitioners conclude that have No. 20020545. demonstrated, minimum, they are so clearly indisputably entitled to the relief Supreme Court of Utah. requested that this court's extraordinary writ authority should be invoked. Aug. 2002.

1 14 previously We have opined that "there

may be cases which the constitutional

question is doubt, so clear and free from meritorious,

the relief demanded so justice

court in the interest of should exer cise its granting discretion the writ.2

Mueller, 227 P. at 273-74. I do not believe

that this is such a case.3 I would dismiss the provide

writ and petitioners the opportunity pursue declaratory action in the district

court.

{ 15 Accordingly, I dissent from the deci- accept jurisdiction

sion to and address the question

constitutional present- that has been

ed. disagree 2. I majority's with the reliance on Nel advantage This has the permitting additional Miller, son v. 2d 480 P.2d 467 a trial court upon establish clear record (1971). While the Nelson court did address the which a analysis may per- constitutionality of a statute within the context of formed. writ, extraordinary ap did so without the propriate suggested level of caution in Mueller. Mueller, 227 P. at 272-73.

1074

1076 Phyllis Gallivan, Pignanelli, R. Frank chael Baskin, City, for Lake Salt Lisa Watts Sorenson, Gallivan, Phyllis Sorenson, M. Kuziak. and Susan John petitioners Dickey. Kuziak, Linda Susan initia- proposed April T3 On Pearce, Himonas, Salt A. John Deno G. governor. with the lHeutenant was filed Gallivan, Michael City, petitioners for Lake governor Heutenant April On Pignanelli. Frank circulation initiative for approved the Gen., D. Shurtleff, Att'y conformity Thomas with L. sheets Mark circulation issued Gen., for Lieutenant Att'y Roberts, or after Asst. On 20A-7-204. section Utah Code print- sponsors initiative's Governor. April sponsors com- packets and initiative ed Hindley, T. Jordan, Mare Mark E. David soliciting the circulation menced Gene City, for intervenors Rasich, Lake Salt a suf- to obtain signatures registered voters' Knudsen, Stephenson, Howard Davis, Peter ini- signatures to have number of ficient Gowans, Utahns Waddoups, James Michael election general placed on the tiative Taxes. Against Unfair ballot. City, amicus for Lake Gay Taylor, Salt M. Legislature. Utah placement for qualify the initiative T4 To ballot, sponsors were statewide on the RUSSON, Justice: signa- specific number required to obtain Gallivan, (Jack) {1 D. Michael more than John W. in each of tures statewide Phyllis Pignanelli, satisfy Soren- Gallivan, R. Frank To the state's counties. two-thirds Dickey Kuziak, son, and Linda Sue M. signature requirement, Susan the statewide "Gallivan") an extraordi seek (collectively, seeking have an person [al requesting court from this nary writ ap- people for vote submitted (1) that Utah's a declaration following relief: rejection obtain: proval shall plac for () equal to 10% of legal signatures unconstitu ballot is ing an initiative (2) tional, all a declaration cast for of all votes cumulative total see under Utah Code regular petition governor was sufficient at the last candidates compel 20A-7-207(2), an order governor was tion at which general election Olene Lieutenant Governor ling respondent .... elected ("lieutenant accept and governor") Walker (Supp. § Anna. Code place the initiative and to petition file requirement, to this Pursuant Gallivan election ballot. general the 2002 governor determined lieutenant ¶ 1, Walker, P.3d 1066. We 2002 UT a statewide to obtain sponsors were extraordinary writ and order grant 76,180 signatures certified minimum of accept and file governor lieutenant placement initiative for qualify the order on the 2002 place the initiative petition and on the ballot. ballot. general election addition, placed get the InT5

BACKGROUND ballot, sponsors had the initiative's the on require- multi-county satisfy a distribution relevant underlying and facts 12 The signatures sponsors had to obtain ment: The extraordinary are writ petition this for at least 20 the State of in each of registered voters citizens of undisputed.1 Certain percent of equal to 10 initiative known proposed counties sponsored a Utah's 29 during the last governor Act Restrictions cast for Waste all the votes as the Radioactive respective in coun- the "initiative") gubernatorial election (the placed on the to be governor were cast. for ty in the votes the which sponsors of general election ballot. 20A-7-201(2)(a)(ii) Spe- (Supp.2001). § Id. Mi petitioners initiative included proposed pre- refuted facts parties interest has the in governor brief, her the Heutenant Indeed, 1. in disposition of to the facts, are relevant ostensibly concurring sented to us that present any did not Gallivan, case. this and none presented with the facts tures from petition, cifically, multi-county signature require- the initiative thus dis- provides sponsors ment must qualifying obtain being placed initiative from on counties, the ballot for satisfy from each of at failure to legal least 20 the multi- county signatures equal signature requirement. fact, to 10% of the total of all In after county signatures removed, votes cast in that for all were sponsors candidates governor regular general at the multi-county last satisfied the signature require- only ment in counties, 14 of Utah's 29 governor election at which was elected. required counties short of the Id. April T6 Between 15 and June aggregate 110 The population of sponsors 130,000 initiative's obtained over sponsors counties which the satisfied the signatures, purportedly largest number multi-county signature requirement is 87.14 signatures gathered during ever the cireu- percent of the population. state's overall lation petition of an initiative in Utah. On Comparatively, aggregate population of 3, 2002,2 June sponsors initiative's deliv the other 15 counties is percent less than 18 signed ered the packets verified initiative of the population. addition, state's total county to each of the clerks of the counties in more than popu three-fourths of the state's respective

which the packets were lation is concentrated in the 4 Wasatch Front circulated. Weber, Davis, Lake, counties of Salt 1, 2002, By July Indeed, county T7 Utah. sponsors if the clerks were had obtained required verify only signers regis- combined 1473 signatures additional voters, certify tered petition specific that each counties of the 15 counties which signature voter, registered is that of a sponsors satisfy did not the individual packets deliver all county of the (Beaver, the lieutenant Daggett, Gar 20A-7-206(8) governor. § (Supp.2001). field, Kane, Id. Piute, Wayne)-in which From June until the 21,651 date on which each of only people, percent than one less county petitions clerks sent to the population, state's overall reside-then governor, lieutenant permitted Utah law vot- sponsors would have satisfied the multi- signed ers that petition to re- county signature requirement. signatures move their petition. from the Id. {11 Even after the names were removed 20A-T-205(8)(a) § (Supp.2001). under 20¢A-7-205(8)(a), Utah Code section sponsors T8 After the pack- delivered the county the state's clerks certified and deliv- clerks, county ets to opponents aggregate 95,974 ered an statewide total of initiative, including Against Utahns Unfair signatures registered voters to the lieuten- Taxes, began contacting petition signers governor, ant satisfying the statewide mini- encourage signa- them to remove their percent signature mum 10 petition. tures from the campaign This fo- 76,180. Despite exceeding the statewide 10 signers residing rural, cused on in Utah's percent requirement, 5, 2002, July sparsely populated counties, sig- where fewer governor lieutenant declared the initiative nature required removals were to cause the petition legally to be placed insufficient to be remaining signatures number of to fall below on the sponsors ballot because the failed to

the number county pursuant multi-county meet signature requirement requirement. 20A-7-201(2)(a)(ii). of Utah Code section county T9 sig- Before the clerks sent the governor, 16, 2002, natures to the lieutenant July peti suffi- On Gallivan signers counties, cient number of from rural tioned extraordinary this court for an writ 3,000, approximately 20A-7-207(4). signa- pursuant removed their to Utah Code section Although requires 2. sponsors Utah law petition extraordinary the place- for an writ or the packets county deliver by the to the clerks June ment of the initiative the on ballot. 20A-7-206(1) § Utah Code Ann. (Supp.2001), packets Gallivan notes that the were delivered on 3. This number 1/15,000th the represents Saturday. June 3 because June 1 was a None of population. state's total parties improper the contends that this was any way impacts that it in the outcome of this brief, governor the lieutenant In her 1 14 that contends Utah's petition, Gallivan In the multi-county signature re- the argues that uncon requirement is signature multi-county free neither Gallivan's burdens quirement (1) equal protection the under stitutional equal protection rights nor Gallivan's speech to the Amendment the Fourteenth clause of re- multi-county signature (2) rights, that the Constitution, the uniform United States general initia- I, quirement is sustainable see of article provision operation of laws purposes of the (8) regulation, and that Constitution, 24 of the Utah tion justify it. requirement multi-county signature Amendment the First speech clauses of free contends Further, governor the lieutenant article Constitution and States United require- multi-county signature Gal- I, Constitution.4 if the of the Utah that section 15 unconstitutional, require- then the ment is multi-county signature argues that livan the rest of from is not severable it ment because unconstitutional requirement is therefore enabling and that statute initiative voters resid registered against discriminates have to be struck would entire statute that the removal ing in counties urban unconstitutional. down as that discrimination provision exacerbates living voters registered just a few permitting the multi- that I Intervenors contend to remove rural, counties populated less requirement is a reason county signature to thwart petition signatures from constitutional, imple able, therefore a petition. initiative an entire statewide process, that mentation of Utah's requirement does multi-county signature filed a brief In addition to rights, speech free implicate Gallivan's not opposition Galli- governor lieutenant multi-county signature writ, if the extraordinary and that even we petition for van's they Knudson, unconstitutional-which Davis, requirement is Peter C. permitted Gene requirement Michael G. Wad- is Stephenson, not-the A. contend Howard sig percent statewide Gowans, from the severable R. Utahns doups, James thereby precluding this requirement, (collectively, nature "interve- Taxes Against Unfair remedy Gal- granting Gallivan nors") peti- court opposing Gallivan's file a brief extraordi petition for an livan seeks in the Legislature tion, permitted Utah and we placed nary to have the relating to writ curiae brief to file an amicus ballot. petition. CGallivan's id"). have "Petitioners Salerno, Gallivan is not contends Under

4. The dissent requiring a challenge any of a statute presented with a facial show that form this court geographic requirement dis non-population would be geographic based use of distribution unconstitutional, requirement show tribution but rather Gallivan must succeed, Petitioners [tlo therefore] [and multi- issue, requirement specific exist that no circumstances must demonstrate facially county signature requirement, unconsti- can be found requirement such under which below, tutional. As discussed multi-county and mischarac- This misstates constitutional." on its signature is unconstitutional challenge in this constitutional terizes Gallivan's every every and under instance face because challenge specifi a facial case. Gallivan makes operation of uniform it violates the circumstance requirement, multi-county signature cally provision Constitution and of the Utah laws 20A-7-201(2)(a)(i), § in the ini Ann. Code the United States Equal Clause of Protection enabling does not chal Gallivan statute. tiative Constitution. geo "any non-population lenge based use of requirement" as the dissent graphic distribution that we Originally, intervenors also contended instead, geographic actual dis suggests, but original jurisdiction under Utah do not have the statute. codified in tribution 20A-7-207(4) Gallivan's to reach section Code Therefore, successfully to make a facial in order challenges. However, in Gallivan require challenge although we do not we Walker, v. decided ment, that no circum must demonstrate Gallivan 20A-7-207(4), we jurisdiction section under have requirement can under which stances exist petition an ex treating as a this action Salerno, States United be found constitutional. original traordinary which we have writ over 739, 745, L.Ed.2d U.S. VIII, 3 of pursuant section jurisdiction to article challenge, "the (stating in facial ¶¶ circum 2-4, 2002 UT 73 at challenger that no set of Constitution. must establish the Utah P.3d 1066. Act would be val- which the stances exist under operation form speech brief, of laws provi- legislature, and free 116 The in its amicus governor's endorsed the lieutenant conten- Constitution, sions of the regardless Utah multi-county signature require- tions requirement whether analyzed is under ment is constitutional under both the federal heightened serutiny or under stringent less Further, legisla- and state constitutions. serutiny, although Gallivan maintains multi-county signature ture contends that the heightened serutiny appropriate. is Addi- (2)(a)(ii) requirement of subsection of section tionally, Gallivan contends that the multi- 20A-T-201 cannot be severed from "the re- county signature requirement freely can be (2)(a) severely mainder of Subsection without severed from the remainder of the statewide distorting altogether destroying legislative initiative statute. respect intent with to the numbers of voters Calling balancing for a test to deter- place a statewide initiative on the serutiny mine which level of should ap- ballot," any that if portion this court declares plied arguments to Gallivan's under the Utah of the statute unconstitutional and severs Constitution, governor lieutenant con- remainder, from the then this court would be tends that impact because to Gallivan's unconstitutionally rewriting statutory rights relating fundamental to this case is not initiatives, framework governing and that general, severe and is nondiscriminatory, and therefore, multi-county if signature re- regulatory and because the state's interests quirement unconstitutional, "the exelusive justify multi-county this case signature remedy should be to refer the statute back to requirement, subjected it should be to rea- Legislature to make whatever modifica- serutiny sonable basis upheld. and should be Legislature tions the appropri- determines Similarly, intervenors contend that ap- "the ate." The also contends that if propriate serutiny level of [under the uniform multi-county signature requirement is de- operation speech provisions of laws and free unconstitutional, clared a new timetable for of the Utah Constitution] is the lowest" in the initiative will have to be created this case and that because multi-county legislature, and that rather than this signature requirement passes constitutional court, should set timetable. muster under this serutiny, level of the re- (17 After argument, oral we issued an quirement should not be declared unconstitu- opinion in which we determined that we have Additionally, tional. supplementing original jurisdiction to consider this matter regarding severability, contentions both the petition as a "for extraordinary pur writ governor Heutenant and intervenors maintain VIII, suant article section 3 of the Utah provisions of the initiative statute are Gallivan, ¶ 4, Constitution." 2002 UT 73 at Finally, not severable. intervenors contend opinion, 54 P.3d 1066. In that we solicited any challenge signature removal supplemental briefing expedited provision either is waived or has become

briefing process, 115-6, id. at requesting moot. briefing parties additional from the on two (1) questions: What is or should be the ANALYSIS determining

standard for the freedom of expression equal protection issues un- petitions 120 Gallivan this court for an der the Utah Constitution? What con- writ, extraordinary seeking to mul- have the severability question siderations affect the ti-county signature of Utah portions when all of the initiative statute 20A-7-201(2)(a)(ii) Code section declared un- (the geographic requirements, distribution constitutional and to have court order percentage requirements, "sig- and the governor place the lieutenant provisions) nature rescission" are consid- general on the 2002 election ballot. Accord- ered as a separately? whole and ingly, we must review whether the multi- Id. at 115. county signature violates the Gallivan, brief, supplemental operation provision uniform of laws contends that Constitution, equal re- protection quirement Amendment, unconstitutional under the uni- clause of the Fourteenth

1080 2; I, § Duchesne art. Const. also Utah the United of both clauses speech the free 376, P.2d at 340. at 140 County, 104 Utah Constitutions. and Utah States VI, 1 of the Utah article section to Pursuant however, so, must we doing T21 Before Constitution, their direct people exercise legis- right people's explain how first and re- through initiatives legislative power fune- with and correlates by initiative late VI, § 1. Article art. Utah Const. ferenda. government state in our constitutional tions grant of the VI, merely a 1 is not section mul- created legislatively system and how and legislate, reserves directly but right relates signature ti-county people. to the power guarantees the initiative people's implementation Co., Realty 3 Utah Doxey-Layton Dewey v. explained: Long ago, this court right. (1954); 805, see also 1, 3, 277 P.2d 806 2d creat- organization ... is an [Glovernment 329, 1, Bench, n. 313 6 Utah 2d 330 v. Shriver purposes, their own people for by the ed (1957); 475, Halgren v. Well n. 1 P.2d 476 such, As wit, purposes. governmental (1936) 550, 16, 21, P.2d 552 ing, 63 91 Utah are powers [that] has government ("The legislation is in the right of direct The by the constitution.... strictly limited 760, Woodard, P.2d 667 v. people."); Urevich of dalli- conceived ... was of Utah State (en banc) (Colo.1983) (stating initia 762 Congress the United of ance between power under Colorado Constitution Territory of people of the States people] for power by [the "'a reservation act, known passed an Congress The Utah. City (quoting v. McKee themselves'" Act, people enable the Enabling "to as the 969, 525, Louisville, 972 616 P.2d 200 Colo. and State to form a constitution of Utah (1980))). legislature and power thereof, As a result government." through legislate people power gave birth to of Utah conceived people coequal, coexten initiative and referenda A constitution twins: Siamese digni sive, "equal and share and concurrent Utah, inseparable unless both State City, Light v. Provo ty." Power & Co. Utah die. shall 1191, 203, 235-36, 74 P.2d 1205 94 Utah Comm'n, 104 County Tax v. State Duchesne (1937) (Larson, J., (stating concurring) (1943) 335, 365, 375-76, P.2d 339-40 140 Utah "by Utah [under 1894, 16, July ch. (quoting Enabling Act of people Constitution] [are] 107, 1A 138, Large reprinted in at Statutes superior body coequal power and with (1991)). Ann. Utah Code also Legislature"); see advantages to the 4, 277 P.2d at 807 Dewey, 2d at of Utah 3 Utah government of the State 22 The legisla power pass organic (noting that electors' people's pursuant was founded legisla power of initiative is same as The consti- tion via authority govern themselves. Court, ture); Superior Manduley v. accord people and ratified tution crafted 168, 37, 41 P.3d Cal.Rptr.2d 5 117 27 Cal.4th unequivocallyprovides: Leno, (2002); 415 3, v. Commonwealth peo- in the power is inherent political All (1993); 453, 835, State 616 N.E.2d Mass. governments are founded all free ple; and 144, Stewart, 57 Mont. v. ex rel. Goodman equal protec- authority for their on their (1920); Stenberg ex rel. P. benefit, right they have the tion and Moore, 602 N.W.2d 258 Neb. v. as the government reform their alter or (1999); Rights Action Wyo. Nat'l Abortion may require. public welfare (Wyo. P.2d League Karpan, added); I, see (emphasis § 2 art. Utah Const. at County, 104 Utah Duchesne also at P.2d power 124 The reserved article right under initiative is a fundamental conformity principle, with this VI, Shri section of the Utah Constitution. people's sov vests the Constitution the Utah 480; (1) ver, see 313 P.2d repre 6 Utah 2d at ereign legislative power both people of the P.2d legislature and Woodley, 882 Loonan v. sentative also (en banc). decades, (Colo.1994) For 1383-84 State, power inherent. political all in whom is a to vote 1(1) recognized VI, we have (Supp.2001); § see art. Utah Const. Restrictions on access to the ballot burden right. Employees' Pub. fundamental Ass'n (Utah 1980). two rights, State, 1272, distinct and fundamental "the v. 610 P.2d 1273 Indeed, right of individuals to associate for the beliefs, political advancement of and the right precious more in a [nlo is free coun- right voters, qualified regardless of their try having than that of a in voice political persuasion, to cast their votes ef- election of those make the who laws under fectively."

which, citizens, good we must live. Oth- basic, rights, illusory er even the most are Illinois State Bd. Elections v. Socialist right if the to vote is undermined. Our Party, 173, 184, Workers 440 U.S. 99 S.Ct. Constitution leaves no room for classifica- 983, (1979) 59 (quoting L.Ed.2d 230 Williams people way unnecessarily tion of a that Rhodes, 23, 30, 5, v. 393 U.S. 89 21 S.Ct. abridges right. (1968)). essence, L.Ed.2d 24 both the Sims, 533, 560, Reynolds v. 377 U.S. 84 S.Ct. ability to commence the initiative (1964). 1362, 12 L.Ed.2d 506 signing petition and the ultimate act of casting a proposed vote on a initiative are power 125 Initiative is the of a integral parts and correlative proposed of a directly legislate exercising voter to via process," initiative's "election 394 right to vote. Legislative Stavros v. Officeof Moore 818, 1493, is, U.S. at right 89 S.Ct. to Counsel, 63, ¶ 19, Research & Gen. 2000 UT cast a vote in the depen initiative context is 1013; 21, Halgren, 15 P.3d 91 Utah at 63 proposed dent on the garnering initiative suf 552; Shriver, P.2d at see also 6 Utah 2d at signatures qualify ficient proposed ini 330, right 313 P.2d at Like to vote placement tiative for on the ballot. The generally, right guarantees par right to vote on an initiative cannot exist ticipation Loonan, political process. in the without the voters' right legis unfettered constitutionally 882 P.2d at It 1383-84. initiative, through late necessarily which be guaranteed right implicit an "form[s] gins circulating signing with the process. part of the life of a free citizen a free 6 Ass'n, society." Employees' Pub. 610 P.2d people's 127 Because right right encourages at 1273. The po initiative directly legislate through initiative and refer- dialogue litical general popu and allows the right, enda is sacrosanct and a fundamental meaningful par lace to have substantive and against Utah courts must defend it eneroach ticipation enacting legislation impacts ment and maintain it Cope inviolate. See v. society. democracy It is in its most direct Toronto, 255, 259, 977, 8 Utah 2d 332 P.2d quintessential form. (1958) curiam) (per 979 (noting that statute right 1 26 The enabling people's right voters' to initiative does not to initiative must be given commence at the ballot box: The voters' pur construction that "effectuatefs] its right legislate sign- via pose people initiative includes permitted to vote and ing petition get proposed express proposed legislation"); their will on Signing petition Eu, on the 492, ballot. Legislature is inextrica- see also v. 54 Cal.3d 286 (1991)(en 283, 1309, Cal.Rptr. 816 P.2d bly right connected to the voters' vote on banc) ("[It an initiative gatekeeping because serves a duty jealously is our solemn function to Accordingly, guard precious to vote. power, and to petitions ... use of ... to obtain a resolve reasonable doubts favor of its "Ithe place exercise."); integral part ballot is [state's] Associated Home Builders of system." Ogilvie, Livermore, [its] elective Moore v. Eastbay, City Greater Inc. v. 814,818, 1493, 394 U.S. Cal.Rptr. S.Ct. 23 L.Ed.2d 1 18 Cal.3d 557 P.2d (1969). (1976) (en banc) Recognizing (same); Urevich, that ballot access is es- rights, sential fundamental ("Any United P.2d at 762 law that limits this "funda Supreme explained: States Court very republi mental at the core of our Supreme 6. The United States Court has ex- (1937), 58 S.Ct. 82 L.Ed. 288 overruled on plained rights that fundamental are those that grounds by Maryland, other Benton v. 395 U.S. "implicit concept liberty." in the of ordered (1969). 23 L.Ed.2d 707 Palko v. State Connecticut, 319, 325, of elector restraint "unreasonable is viewed with government' can form initiative); also McKee, through see legislate P.2d ate" to scrutiny." (quoting closest Loonan, (stating Moore, 258, P.2d at 1386-87 972)); Stenberg v. rel. ex diminish, (stating legislature's 199, N.W.2d that will enactments Neb. initia "precious" and "is limit, destroy right of initiative impair, impermissible); Wolverine right are preserve are zealous to Golf courts which the one Hare, 711, 180 N.W.2d Mich.App. spirit as Club measure tenable to the fullest (1970) legislature can 820, (noting that omitted)); In re (quotations well as letter" ground "place certain statutes that enact 18, Question No. Pet. No. Referendum ("The in order 295, for initiative petitioning rules 417 P.2d 1966 OK verifying of by the enormous task people to facilitate petition for a vote right it petitions," but cannot by signatures on provided Art. and Referendum Initiative unnecessary to restrict obstacles is a "create of Oklahoma § of Constitution Bros., initiative"); Bernstein lawful use of carefully preserved."); right sacred ("The Inc., only power the at 539 661 P.2d Revenue, Bros., Dep't Inc. v. Bernstein (holding pass legislation that aids legislature has is to 661 P.2d 294 Or. Supreme power] intended "has consistent Oregon Court the [initiative or facilitates constitution."); Ark. Const. by the powers of referen ly people's [the defended cf ("No legislation shall be enacted any amend. 7 against eneroach initiative] dum and restrict, ment"). hamper impair or the exercise nature the fundamental Because of peo to the right initiative] reserved significance [of and its right of initiative ple."). registered power of voters political right state, ensuring that the vitality of di- Complying with this constitutional limited, severely effectively abrogated, not enabling legislation, the Utah to enact rective procedures enacted unduly burdened 20A- Legislature passed Code sections Utah initiatives on place and to -218, procedures to enable whichdetail Utah's 7-201 to paramount importance. is of the ballot elections. conducting statewide initiative for Vernon, P.2d generally Bigler v. See $28 VI, requires section Article (Utah 1998). legislature, The 1391-92 legislation to enable legislature to enact signatures setting minimum number of power their reserved people to exercise proposed initiative to be for a legislate through initia directly ballot, requires sponsors placed on the Hunt, 660, 661 882 P.2d tive. See Owens specific signatures obtain both a number (Utah 1994). perti provides This section signatures specific and a number statewide part: nent than two-thirds of the state's in each of more (2)(a)() legal voters of the State of signature satisfy the statewide counties. To conditions, numbers, under Utah requirement, manner, provid- time and within the seeking an initiative person to have [a] statute, may: ed people ap- a vote of the for submitted to (A) legislation and desired initiate rejection proval or shall obtain: people for to the it to be submitted cause (i) legal equal signatures to 10% upon majority vote of those adoption total of all votes cast for the cumulative .... legislation voting on the governor at the last all candidates 1@2)(a)@)(A) VI, (Supp. § art. Utah Const. gov- regular general at which a election 2001). legislature can and Accordingly, .... ernor was elected imple legislation that required to enact (Supp. § Ann. Code Utah peo the exercise of the ments and enables satisfy the To long right to initiative so does ple's requirement, unduly burden or diminish pass laws that seeking an initiative person to have [a] legislation. Ow people's right to initiate ap- people for to a vote of the ens, legisla submitted (acknowledging P.2d at 661 rejection shall obtain: proval or regula enacting initiative latitude in ture's impose "discriminat[e]l" or tions that do not ++,

(i) counties, I, of at from each least 20 181 Article section of the Utah legal signatures equal to 10% of the total Constitution "All general states: laws of a county all votes in that for all cast nature shall have operation." uniform governor regu- candidates for at the last I, § Const. art. 24. The Fourteenth general governor lar election at which a Amendment to the United States Constitu was elected. prohibits tion a state enacting laws that deny "any person jurisdiction within its 20A-7-20102)(a)@).7 Having § Id. this back equal protection of the laws." U.S. Const. mind, drop in we now turn to Gallivan's XIV, § Despite amend. challenges multi-county their dissimilar language, signature requirement. provisions these two constitutional "embody general principle: persons the same EQUAL I. PROTECTION AND similarly similarly, situated should be treated UNIFORM OPERATION persons in different cireumstances OF LAWS should not be treated if as their cireum- Lewis, stances were the same." Malan v. challenges multi-county 130 Gallivan (Utah 661, 1984); 693 P.2d 669 see also Car signature requirement provision of the Utah Restoration, 346, rier v. Pro-Tech 944 P.2d statute, enabling Ann. Utah Code (Utah 1997) (observing 355-56 20A-7-201(2)(a)(i), Utah's § grounds on the operation uniform provision of laws and fed operation violates both the uniform of laws Equal eral Constitution, "embody Protection Clause provision of the Utah Utah I, 24, general principles"); same § Equal art. Mountain Fuel Const. and the Protection Supply City Corp., Co.v. Salt Lake 752 P.2d of the Fourteenth Clause Amendment (Utah 884, 1988) Constitution, (same); United States U.S. Const. 888 v. Liedtke XIV, Schettler, (Utah § 80, 1982) amend. 1. 649 P.2d 81 n. 1 19, Twenty-three leg- (requiring percent § 7. states allow their citizens to 2 10 statewide with 10 states, by islate initiative. Thirteen percent of those in- or more from not less than 13 of 17 cluding Utah with the ballot); place counties to an initiative on the requirement, geographic have some form of dis- II, (requiring sig- §§ Ohio art. Const. 1A & 1G Alaska, requirement. tribution Those states are percent registered voting natures of 6 of voters in Arkansas, Florida, Idaho, Massachusetts, Missis- gubernatorial signatures last election and of one- Missouri, Montana, Nebraska, Ohio, Utah, sippi, half of those, or 3 from each of 44 of 88 percent, Wyoming. ballot); counties an initiative place Five of those 13 states-Alaska, Florida, Mis- (re- (Supp.2001) § Utah Code Ann. 20A-7-201 Missouri, and Montana-use sissippi, popula- quiring percent 10 statewide with not less than distribution, geographic tion-based unit of such percent 10 from each of 20 of 29 counties to districts, districts, state house state senate or ballot); place Wyo. an initiative on the Const. states, congressional remaining districts. The 8 3, 52(c) (requiring percent § art. 15 statewide Utah, including nonpopulation-based use of units percent with not less than 15 from each of 15 of distribution, geographic such as counties. Each ballot). place 23 counties to an initiative on the requires percentage of these states a certain of noting It is worth that before the number, signatures per- from each of a certain 20A-7-201(2)(a)(ii) amended Utah Code section centage, or fraction of the counties in the state to 15, required only percent Utah 10 in place an initiative on the ballot. See Ark. Const. rather than of Utah's 29 counties. (requiring percent amend. 7 8 statewide with not 20A-7-201(2)(a)(ii) (1995). § Code Ann. percent less than 4 in at 77 least 15 of counties Only incorporating geo- 3 the 13 states initiative); enacting for statutes Idaho Code graphic Idaho, distribution (Michie 2000) (requiring requirement-Alaska, § percent 34-1805 6 statute, only and Utah-do so those percent statewide not with less than 6 from each Idaho and Utah use counties. Idaho's multi- place counties to an initiative on the county signature requirement, requiring signa- ballot); Mass. Const. XLVIII, Init., Amend. art. only percent registered tures from of the voters (1997) Prov., pt. pt. § 1 & Gen. in half 44 counties, of Idaho's was declared un- (requiring 3.5 statewide with more percent by the Federal District Court for signatures than one-fourth of the one the District of Idaho. Idaho Coalition United county, requiring at least 4 of 14 counties to ballot); Cenarrusa, Bears v. Civ. No. 00-0668-S-BLW, an initiative on the art. Neb. Const. place (D.Idaho 30, 2001); slip op. at 9-10 see (requiring percent signa- § Nov. statewide with incorporating percent regis- The other 10 states tures distributed as to include 5 infra geographic tered voters from each of 37 distribution do so ex- of 93 counties to ballot); place an initiative on the Nev. Const. art. pressly in the constitution of the state. provisions," we in the two concepts embodied I, "generally 24 is article section (stating that produce can that "the differences have noted Equal Pro- of the equivalent considered consequences." Lee v. Gau legal Amendment, different U.S. 14th tection Clause (Utah 1993); also Constitution"). see fin, P.2d 1995) (Utah Mohi, 991, 997 901 P.2d provi Both constitutional ("The Malan, Lee); at 670 (citing 693 P.2d principles of incorporate "[blasic sions I, § language of Article different inher [that] law are protection of the equal two contexts different constitutional justice and are a very concept of in the ent jurisprudential con provisions, and different Malan, just society." necessary attribute may to a different result lead siderations equal protection That P.2d at 670. 6 principles under equal protection applying society" "explicitly to a free is "essential I, might § reached under 24 than Article I, § 2 of the Utah ... Article stated law."). ad Consequently, we will federal governments free '[Alll Constitution: challenges to the multi-coun dress Gallivan's people's] authority for [the on their founded requirement under each consti ty signature "8 ....' Id. and benefit equal protection and in turn. provision separately tutional (alterations (quoting Utah Const. original) I, § art. Operation Laws A. Uniform under Utah Constitution a simili though there is 133 Even multi-county challenges the 134 Gallivan principles" embod in the tude "fundamental provision the initia- signature requirement of Equal Protection Clause in federal ied statute, Ann. enabling Utah Code pro operation of laws uniform and the Utah 20A-7-201(2)(a)(i), ground it § of vision, application and "our construction provi- operation of laws by the violates the uniform I, controlled § 24 are not Article Constitution, arguing that sion of the Utah application of and construction federal courts' Malan, Clause," multi-county signature 693 Equal Protection 670; Ryan v. Gold Cross operation disparate P.2d at see also in its unreasonable heightening the it has the effect of (Utah 1995), because 423, Servs., Inc., P.2d 426 903 regis- I, signatures of weight of the recognized article see relative have and "[w]e rural, populous in counties require voters less tered establishes different tion signatures of diluting weight of the Equal Protection from the federal ments Lindon, urban, City populous registered in more Clause." Whitmer voters of counties, skewing in favor impermissibly thus (Utah 1997). light of and P.2d power to deter- differences, registered rural voters the we also have of because of these placed on the an initiative is operation of mine whether uniform reiterated that Utah's and, exacting in ballot under process. "at least as provision is Gallivan laws multi-county signature re- contends that the cireumstances, rigorous than more some fur- supported nor quirement neither is applied the federal constitu under standard Co., legislative pur- legitimate valid or Supply P.2d thers Fuel tion." Mountain multi-county Carrier, 356; objective pose or and that 889; P.2d at also at see reasonably nee- Thus, signature requirement is not Whitmer, because P.2d at 230. legislative goals. essary legitimate to further history provi language and of two "the different, challenged though in view entirely and even Because Gallivan's sions are or statutory provision impacts fundamental overlap in the important areas of there are I, section 24 referenced either article § of a 8. We have it is more a statement I, Article pur both, I, legal Utah pose government or than a standard that article section equal wellsprings of our state legality govern as the Constitution to measure the can used See, Malan, e.g., protection principles. 693 P.2d at 670 n. 13. Malan, action." 693 P.2d mental Care, Health 13; Allen v. Intermountain at 670 n. 2 articulates I, article section Nevertheless, (Utah 1981); Inc., 31 & n. 10 635 P.2d legal philosophical, political, and fundamental Comm'n, County Gym v. Salt Lake Redwood analysis principle and informs our that underlies I, (Utah 1981). Article 1146 n. 27 P.2d operation companion of laws uniform under its phrase "equal protection," but section uses the article. "although relevant to the construction it is Therefore, equal protec guaranteed by Utah Con- critical stitution, principle tion in opera asserts that our review of inherent the uniform Gallivan provision protects tion of employ heightened against seru- laws the statute should dis tiny, giving guards against little or no deference to the crimination within a class and disparate application effects of laws. legislature affording without legislature may the See id. While the have dis county signature requirement provision constitutionality. cretion the creation presumption normal of classes to which " legislation applies, 'the court must deter governor T 35 The lieutenant and interve- mine whether such operate classifications nors maintain that because no fundamental " equally persons similarly on all situated." at with or critical stake connection (quoting Id. Dep't Tax Comm'n v. legislative pur- the statute and because the (Utah Fin., 1978)). 576 P.2d Ulti poses goals underlying the statute are mately, judiciary's province is the to decide legitimate reasonably reasonable and re- question the vital and determinative question, lated to the classification we operates "whether a uniformly classification constitutionality should sustain the persons similarly on all situated within con under parameters." stitutional Id. s serutiny. the lowest or minimallevel of conducting analysis 139 In of a §36 I, Article section 24 of the Utah challenged statutory provision under article general "All Constitution states: laws of I, section "the broad outlines of the ana operation." nature have uniform shall lytical determining model used in compliance I, § art. 24. The Const. essence of this operation provision with the uniform of laws " provision is 'the settled con cases, remain the same in all [but] the level of the law that cern be re serutiny give legislative we enactments fundamentally prac strained from unfair Shield, varies." Blue Cross & Blue 779 P.2d classifying persons tice' of in such a manner 637; also, e.g., see Peterson v. Coca-Cola similarly those who are situated with ¶ USA, 42, 23, 941; Lee, 2002UT 48 P.3d 867 respect purpose of the law are treated 578-83; Servs., Ryan P.2d at v. Gold Cross law, differently by that to the detriment of Inc., (Utah 1995); Swayne 903 P.2d 426 some of those so classified." Blue Cross & Servs., (Utah v. L.D.S. Soc. 795 P.2d6 647 State, Blue Shield Utah 779 P.2d of 1990) (Zimmerman, J., concurring and dis (Utah 1989) (quoting 637 Mountain Fuel Co., senting); Supply Mountain Fuel Co., Supply 752 P.2d at 3; P.2d at n. Condemarin v. Univ. (Utah 348, 354-56, 1989); Hosp., 775 P.2d order for a law be Condemarin, (Stewart, J., 775 P.2d at 372-13 operation constitutional under the uniform of separate opinion). provision, enough laws "it is not it be uniform on its face. What is critical is that legislative a 140 Where enactment Lee, operation of the law be uniform." implicates right" a "fundamental or critical or 577; Mohi, 867 P.2d at see also 901 P.2d at creates classifications which are "considered operate uniformly "A law does not if abstract," impermissible suspect in or we 'persons similarly situated' are not 'treated apply heightened degree scrutiny. similarly' 'persons if or different cireum- 426; Peterson, Ryan, 903 P.2d at see also are 'treated if stances' their circumstances ¶ 23, 941; Swayne, 2002 UT 48 P.3d " Lee, (quot were the same.' 867 P.2d at 577 (Zimmerman, J., concurring 795 P.2d at 647 (Utah Lewis, ing Malan v. 693 P.2d Condemarin, dissenting); 775 P.2d at 1984)). words, persons In other "[when are (Stewart, J., separate opinion). situated, similarly is unconstitutional single person group persons starting point analy out one or of our sis, among larger therefore, multi-county class on the of a basis is whether justification signature requirement tenuous that has little or no mer en Malan, (footnote it." abling implicates 693 P.2d at 671 omit statute a "fundamental or ted). right" critical or creates classifications which suspect in map in or this road impermissible legislative purpose. With are "considered hand, of our two return to the first at 426. The we Ryan, 903 P.2d the abstract." im in this case issues. at issue threshold statutory provision people to exercise right pacts the First, multi-county signa and their power legislative reserved enabling requirement of ture explained, both previously As we vote. wishing to have requires that citizens statute rights which the and critical fundamental placed must secure on the ballot special accorded sanc has Constitution residing registered voters signatures of M 24-27. tity. supra See county equal percent to 10 particular in a multi-county signa 142 Because in that aggregate of votes cast number fundamental affects ture in the last county governor particular by and reserved to guaranteed critical of 20 of Utah's gubernatorial election each Constitution, in the Utah of Utah the citizens § Ann. 20A-T- counties Utah Code height challenged law with we review 201(2)(a)®ii) (Supp.2001). The classification analyt following scrutiny apply the ened is, statutory provision, that by made in Lee: ical model articulated statutory provi persons to which class ®statutory that discrimi- classification [A] by requiring applies, registered voters is sion constitutionally person's against a nates voters. id. signatures of such critical] protected [fundamental 20A-7-201(2)(a). opera § The effect of the (1) only if it is reason- . is constitutional multi-county signature require tion of the (2) able, speculative ten- more than has the cre enacted ment objective legislative dency further the registered voters: subclasses of ation two and, fact, actually substantially fur- in rural counties and those those who reside purpose, and legislative thers valid sub in urban counties. These who reside legiti- necessary further a reasonably classes, expressly created while not goal. legislative mate statute, oper application from the result words, in order In other 867 P.2d at 582-83. governor The lieutenant ation of the statute. con discriminatory classification for a acknowledge implicitly and intervenors also necessary reasonably it must be stitutional two subclasses and the the existence of the actually further, must and sub and in fact the two sub operation of the statute as to further, pur legitimate legislative stantially they argue that classes when pose. See id. purpose behind the operation of uniform 143 Under this is, among things, other to coun model, analysis analytical our is laws disfavoring rural legislation ter localized Initially, we must address straightforward. to act as a populations and and counties (1)what, determining two threshold issues majority. and balance on the urban check (2) any, created and wheth if classification is Second, question the arises discriminatory, is er that classification leg created is, of the class whether the classification the members whether it treats is, Mohi, discriminatory, whether disparately. islature is or subclasses or subclasses are discriminatory the members of the class classification at 997. If a P.2d multi-county signa disparately. The analyzed according treated exists, it must then be diluting requirement has the effect of if it is constitution ture to determine the Lee test registered and analysis, power of urban voters the Lee we ally permissible. Under registered heightening power of rural legislative purposes the stated review each of petition, an initiative multi-county signature re voters in relation to supporting thereby treating similarly registered legis situated whether that quirement and determine uniquely disparately. Given Utah's the mul- voters purpose legitimate, is whether lative actually population, the effect of and concentrated ti-county signature purpose, and substantially furthers al multi-eounty signature requirement is to registered in rural counties require low voters multi-county signature whether power in disproportionate amount of necessary the wield a reasonably to further ment is (4) support"; "counter[ing] possibility lar of whether determination (5) The legislation"; "acting the ballot. as a placed on of localized qualifies to be discriminatory "temper majoritarian in that it statutory is and scheme check balance" interests"; in rural essentially registered voters safeguard minority raises and [and] rule gatekeepers who can to the level "insur[ing] counties is an informed there de- effectively keep off the ballot initiatives responds that none of electorate." Gallivan numeric significant spite the existence suggested legislative purposes underlying portions in urban support for the initiative muilti-county signature requirement is le- three-fourths Because more than the state. multi-county signature gitimate and along the urban- population resides of Utah's necessary reasonably is not Lake, Utah, Front, ie., in Salt ized Wasatch legislative goals in event. further those Counties, Weber, relatively small Davis primary principal legislative T48 The rural, registered voters in the number multi-county signature purpose re have an effective populated counties sparsely by intervenors is that of quirement offered merely by virtue in the initiative veto ensuring an initiative support statewide state. For residing in rural areas of the placed the ballot.9 Ac before it can be County, signature Daggett in example, a cording legislative purpose, in enact to this Lake population percent is 0.1 of Salt whose ing multi-county signature requirement, 1000 times County's population, is rendered only legislature sought ensure that voter in signature of a Salt as valuable as modicum of initiatives that have sufficient County. The Lake registered throughout support voters equally apply requirement does ultimately placed state would be registered vot- of rural and urban subclasses general election ballot. In other statewide discriminatory creates a ers and effect words, legislature sought make certain disparate impact. its because of classification geographically that an initiative has broad 1] Having determined that a discrimina- support that ini distributed statewide before exist, disparate impact tory classification and placed can on the ballot. To this tiative discriminatory if that now must consider we end, counties as the unit chose constitutionally permissible classification geographic distribution. provi- operation of laws the uniform under determination, we turn to multi-county signature re make this 149 The sion. To analytical 867 P.2d 582- Lee's model. See reasonably necessary not a quirement legisla mechanism to further means or ensuring geographic purpose of broad governor and interve- 147 The Heutenant invidiously support dis statewide because legitimate leg- purportedly six nors advance registered against urban voters criminates allegedly support purposes that islative registered rural voters violation of favor of question discriminatory classification overly person, principle one vote the one multi-county signature re- maintain right of initiative the constitutional burdens further, necessary reasonably quirement is means of in that it is not the least restrictive substantially actually fur- in fact purpose. furthering legislative the stated thers, purposes. prof- those signature requirement's multi-county (1) The legislative purposes are "maintain- fered geographic unit of use of counties as the by ensuring ing integrity process" of the the is the source of the invidious distribution sup- "significant modicum of that there is a (2) have such state"; Because counties ensuring discrimination. throughout that port the widely populations, with the concen varied easy get on the are not so "initiatives counties, ballot"; grass- "promoting initiatives as being in 4 population tration of multi-county signature requirement's reli popu- legislation geographical with and roots legislativegoals proffered support, the other or our goal 9. A few of sumed in the of statewide independently, applies purposes, analysis primary purpose essential- to those while offered restatements, ly components, or subsets of we address event, In will with force. equal ensuring goal requiring of or state- the broader goal independently. each stated extent, they support. are sub- wide To some requir previously explained, and the effect of its As we have ance on counties power right and the citizens' ing signatures from 20 of 29 counties result legislate directly through that the exercise of in favor of the 25 rural in the discrimination power right guaranteed fundamental not the 4 urban counties. It is counties over supro 1 24-27. Utah Constitution. See restrictive, a less burden inconceivable that legislature's unduly purpose The burden some, nondiseriminatory mechanism for or right by or constrict that fundamental mak- support ensuring geographic statewide broad ing place it harder to initiatives on the ballot multi-county crafted. Because the could be legitimate legislative purpose. En- is not a reasonably signature requirement is not a dorsing legislative purpose this essen- would necessary leg means to further this intended tially legislature allow the without limitation purpose, pass not constitution islative does to restrict the initiative cireumsecribe operation al our uniform muster under power people, rendering reserved to the thus Lee, provision. laws 867 P.2d at 582-83. only legislative game itself the in town. If legislative purpose legitimate, $50 such a were addition, multi-county In legislature completely would be free to signature requirement actually not does emasculate the initiative and confiscate substantially legislative purpose further of, all, legislative to itself the bulk if not is, support, ensuring statewide that broad power. obviously This would contravene ly geographic support, pro or distributed spirit both the letter and the of article VI of regarding moting initiatives issues of state the constitution. multi-county signature wide interest. The opposite By giv has the effect. say 158 This is not to that in some minority ing an veto to the rural effective legislature impose cireumstances the cannot majority, over urban initiatives that en may, through opera restrictions that joy support majority statewide from tion, place make it more difficult to an ini population and therefore focus on issues legislature tiative on the ballot. The can of at least numerical statewide concern are impose requiring restrictions-such In prevented qualifying for the ballot. particular petition, setting form of reason respect, re efficiency able time frames ensure the quirement placement thwarts the on the bal process, requiring signers regis or to be widely supported lot of initiatives. Effective tered voters-which would have the effect of ly, only initiatives of rural concern and with making get it more difficult to initiatives on ballot, support get placed rural on thus ballot, only but to the extent those defeating VI, comport the use of the initiative restrictions with article section Therefore, purpose support. Constitution, statewide of the Utah do not violate multi-county signature requirement provisions, with other constitutional and further legitimate regard purpose pass legislative purposes does not the Lee test such as deter fraud, actually substantially ring ensuring efficiency because it does not process, ensuring a modicum of purpose further the stated of en numerical support legis for an All suring support. initiative. of these statewide purposes support lative could restrictions on governor 151 The lieutenant also ar could, conceivably, the initiative gues multi-county signature require making have the effect of it more difficult to supported by legitimate legisla ment is place an initiative on the ballot and could be purpose ensuring that "initiatives are VI, provision consistent with the of article easy get so the ballot." other requires legislature section to en words, argues legislature she was legislation enabling act right. justified enacting multi-county signa may not, however, impose requirement ture because it makes it harder discriminatory restrictions on the initiative legislate for citizens to exercise their right by easy" making get it "not so through constitutionally guaranteed the ini simply initiatives on the ballot for the sake process. clearly legiti making tiative This is not a restricting it harder to do so and legislative purpose. Thus, mate power. multi-county the initiative the political tion is at the lowest level of the and pass not requirement does signature governmental power hur constitutional structure. Because the operation of laws uniform even if we respect either because inherently "grassroots" in this dle is nature, legislative purpose promot multi-county signature re assume that fur reasonably necessary to quirement is ing grassroots legislation initiatives as would substantially ther, actually be satisfied an initiative statute that en in fact and and making furthers, legislative purpose of abled the basic with or with ballot, that get initiatives on the multi-county signature requirement. harder to out the case, multi-county signa legitimate. being This legislative purpose is not reasonably necessary requirement ture is not legislative the extent this 154 To legislative purpose. to further the stated essentially preventing aimed at purpose is light discriminatory impact T 56 In overcrowding, multi-county signa ballot signature muilti-county and effect re- reasonably necessary requirement is not ture quirement its burden on fundamental and purpose reasons further that for the same rights, disparate resulting treatment necessary reasonably means that it is not a multi-county signature requirement from the geographic support statewide to ensure reasonably necessary cannot be considered multi-county signature initiatives. While the legislative purpose further because even this making might the effect of requirement have multi-county signature in the absence of the get difficult initiatives it more requirement legislative purpose would be ballot, reducing chance of ballot thus words, legislative In other furthered. overcrowding, only through invidi it does so in- purpose could still be furthered without way overly and in a ous discrimination constitutionally protected fringing proce right. The other the initiative burdens restrictive, burdensome, through or dis- less enabling the initiative provisions dural Therefore, criminatory means. the multi- statute, requirement of nu specifically, the county signature requirement is unconstitu- support, sufficient to ad meric statewide is regard legislative purpose tional with to this rendering the legislative purpose, vance this reasonably necessary to its because it is not multi-county requirement superflu signature furtherance. purpose. furthering legislative ous to argue intervenors 157 Next Intervenors also contend that multi-county requirement signature is multi-county signature requirement reasonably neces constitutional it is because reasonably because it is neces further, actually further, actually sary to fact sary in fact furthers, legitimate furthers, substantially the related substantially legitimate legisla countering possi legislative purposes of purpose promoting initiatives as bility legislation acting as a purported legis of localized grassroots legislation. This majority. merely an asser check and balance on Counter purpose is offered lative legislation is analysis ing possibility of localized any explanation or tion without purpose. The legitimate legislative legitimacy. Even if we were to not defense of its legislature operate not under the legitimate, itself does legislative purpose is assume this through legislation enacted procedures must avoid "lo pur processes and reasonably necessary to further that its legislation potentially favors one legislative power calized" pose. The exercise county If the avoid region or of the state.10 people through the initiative to the reserved endeay- inherently "grassroots" legitimate process is legislation were a ance of localized pre , purpose goal, one would or very "grass or. The idea and definition would tailor its own essentially legislation is sume movements or roots" procedures to ad legisla legislative processes and the source of the movement through process. leg Any legislation islation enacted enacted "localized" subject prohibition County, County Emery islature would 2002 UT See Grand XI, against special section 3 of the laws of article 7-24, ¶¶ 52 P.3d 1148. Constitution, leg as would "localized" This, however, only receiving goal purpose. counties from the vance that or legislature is free to signatures is not the case. in number of each of 20 or more passage legislation. If the of pass localized of 29 an counties. Such initiative could be permissible legislation is in the con localized legislation, yet considered localized multi- the of laws via the consti text of the enactment county signature requirement would be inef- legislature, it tutionally is hard to established preventing fective in it. why potential of local discern the deterrence legislation legit as a ized should be advanced 159 As to the notion that the in legislative purpose imate the context of multi-county signature requirement is a nee- unduly the enactment of laws burden essary majoritarian temper check "to rule people's right initiative via the consti the safeguard minority in [and] interests" the tutionally power. established initiative process, context the multi- of initiative the county signature requirement is not reason Moreover, multi-county sig ably necessary legislative purp to further that actually not and nature does governor The lieutenant and interve- legislative substantially further ose.11 purpose nors claim that legislation preventing of localized because acts as check and balance on multi-county signa even under the current However, majority. multi-county nothing stop ini requirement, ture would that, imposed signature example, requirement goes tiative a tax on far in too system oper- legislative process, and 11. The of checks balances that initiative has a different char coequal system ates connection with the three and in acter in our constitutional than the direct government legislative process of our state are coextensive branches the direct initiative constitutionally Any legislative may mandated and derived. process be considered a constitu present system representative checks and balances are legislature tional check on if it widely supported legislation, "legisla- fails enact see nature, therefore constitutional legislature tive." The is not free enact restric- Legislative Stavros v. Research & Gen. Office of constitutionally guaran- tions on established and Counsel, 63, ¶ 19, 2000 UT P.3d 1013, per powers perceives teed whenever it haps legislature's because the internal rules of system of checks and balances is misa- operation, system such as the committee or ta ligned equilibrium. purpose or out of Such is bling, prevented legislation being have en legitimate legislative purpose. not a more, Further- governor legislation acted, or where vetoes legitimate legislative purpose not a having popular support lacking support but i.e., balances, impose overly burden- checks representative legislature two-thirds of the restrictions, some on the initiative when governor's power override veto. Accord Warren v. duty responsibility and the constitutional of the Boucher, (Alaska 1975) (Erwin P.2d legislature enabling legisla- enacting initiative ("[Initiative dissenting) and Burke, JJ., and refer- process. is to facilitate the initiative tion permit people enda] to enact laws when act, legislature legislative purpose repeal is also cast as a refuses to or acts of the This means ensuring unpopular populations which are [and that rural are involved in or unfair process inception balance[s]) from its and as are] additional check{s] providing legisla- governmental process [they] upon a check and within balance because act[] itself, process processes legislative power similar to the awareness that such exists procedures during crafting legis- employed people."); with the Mich. United Conservation ie., State, representative legislature, Sec'y lation in the Clubs v. 464 Mich. (2001) (en banc) (noting N.W.2d amendments, to offer the use of the com- ability system, ability proposed provisions miltee or the to table a initiative and referendum of Michican Again, legislative processes provide bill. directly these internal Constitution "means for citizens inaction"); operation challenge Legislative are not rules of action Pit Drabelle, ability "[elach checks and balances. The man v. 267 Mo. 183 S.W. (1916) (en bance) ("It very is the essence of proceedings" [to] house determine the rules of its government regulating free that the laws com established, but actu- may constitutionally adopted operation legisla- munity al rules for the should reflect the view and voice of a majority plan [and its voters therefore] § ture VI, are not. Utah Const. art. 12. Noth- (initiative) ing people empowered in the constitution that it within indicates which the legislature's province impose repre the co- to do the business which their recalcitrant equal legislative right system have sentatives failed to has met with perform{[] balances, is, operation, checks and sanction."). rules for judicial Therefore, full the direct legislature's akin to the own rules of internal was not meant to be operation. Allowing sight subject such would lose same checks and balances that the representative legislative process, representative legislature adopt fact that has chosen to coequal operation. while and coextensive the direct its internal with rules of legislature gives minority the control of the effectively weighting signa the By regard. preemptive registered power. voters initiative This veto on relatively few the tures of counties, multi-county power system the initiative turns our of ma- in rural the residing mi jority the rural requirement affords rule on its head and therefore cannot signature reasonably necessary be considered means the veto or check on nority preemptive legislate through the ini majority's power purpose maintaining to further the checks process. system government. tiative and balances in our Furthermore, multi-county signature the re- government prem- system of is Our actually substantially quirement does not mi- majority rule with the notion of ised on system further the of checks and balances Majority founda- nority rights. rule is the system actually governmental our because it constitutionally premise of both of the tional system causes the to fall out of balance enacting legisla- mechanisms for mandated shifting disproportionate an inordinate and representative enacts tion. The minority power amount of to the rural at the upon principle, and the legislation this based Therefore, majority. expense of the urban respect to the be true with same should maintaining system purpose the the govern- process. system In our checks and balances is not furthered but ment, majority abuses or in the event instead hindered. minority, rights of the threatens to abuse the to the courts to minority has recourse governor Finally, "62 the lieutenant rights by the the violation of its redress multi-county signature suggests that the re provisions majority. Several justified quirement is "to insure that there is major- minority protect the from the serve to electorate." We do not doubt an informed clause, open the uni- ity, courts such as necessity of an informed electorate or provision, prohibi- operation of laws form legiti ensuring the existence of one is a that special against post facto laws and tion ex however, legislative purpose; the multi- mate regard, In States Su- laws. United county signature requirement not reason preme has noted that Court further, necessary actually ably nor does it minority legis- control of state to sanction further, legislative substantially Le., legislative processes, [or lative bodies multi-county signature re purpose. The initiatives], majority appear deny would promote an quirement does not informed way surpasses rights in a far most, At electorate. minority rights possible denial of petitions and proponents circulate thought might otherwise be to result.... (or more) signatures in gain Utah's system amply provides Our constitutional regis merely exposes a number of counties by means protection of minorities for the to the basic tered voters those counties majority giving them control of other than underlying proposed initiative. issue processes, legislatures legislative [or state petition only the circulation of the The i.e., initiatives]. stage process, of the election however. initial Sims, 533, 565-66, Reynolds v. placed on reality, it is after the initiative is (1964). campaigns for and L.Ed.2d S.Ct. the election ballot and the underway against Regardless of the constitutional Therefore, electorate becomes informed. of the minor mechanism for redress of abuse multi-county signature re respects, some majority, minori ity by the the vindication of development of an quirement hinders ty every comes rights in almost cireumstance subjects of informed electorate majority pursuant taken after an action initiatives because legislature, through the multi- rule. ability get unduly hinders requirement, put county signature has ballot, preventing thus initiatives on the by giving minority the horse cart before campaign on the issue. waging of a full-scale weapon against perceived preemptive minority's infringement of the signature re- potential multi-county T 63 Nor is the necessary further reasonably majority's attempted quirement resort enabling in- so, purpose By doing process. to the initiative analyzed quirement "must with the strict- Because the electorate formed electorate. serutiny." through campaigns est for informed becomes initiative after an against proposed governor and interve- T 66 The lieutenant regardless placed the ballot initiative is on nors contend that the an initiative cireu- proponents whether requirement severely does burden petition garnered sig- the initial lated rights of urban voters and is therefore be counties, from the the re- natures only serutiny. analyzed under rational basis reasonably necessary quirement is not to Nevertheless, they contend that the multi- legislative purpose. stated further the county signature requirement passes consti- tutional muster under either rational basis or $64 multi-county signature re The scrutiny. strict effectively against quirement discriminates Equal of the T67 The Protection Clause registered in that it urban voters affords provides Fourteenth Amendment that no disproportionate voters of rural counties a any "deny person within its state shall multi-county voting power. The amount of laws," jurisdiction equal protection of the signature requirement's discriminatory clas XIV, 1,$ amend. "which is U.S. Const. sification is unconstitutional under the uni essentially persons a direction that all simi operation provision form of laws of the Utah larly City treated situated should be alike." reasonably because it is not nee- Constitution Ctr., Inc., Living v. Cleburne Cleburne further, essary to and does not in fact actual 432, 439, U.S. S.Ct. L.Ed.2d further, ly substantially prof of the (1985); Lafferty, see also v. 2001 UT purposes. fered We therefore ¶19, 70, 20 P.3d 342. requirement hold that the constitutes a viola tion of the and note that Utah Constitution Accordingly, Equal Protec explicitly premised the result in this case is requires generally tion Clause states treat holding. Although on that we address similarly unreasonably voters and not to sub parties, federal claims raised our state ject disparate voters treatment. The analysis constitutes an inde Supreme recently stat United States Court pendent ground for our decision. Michi Cf. ed: gan Long, 103 S.Ct. right protected in more than vote is (1983). 77 L.Ed.2d 1201 initial allocation of franchise.

Equal protection applies as well Equal B. Federal Protection Having manner of its exercise. once terms, granted right equal to vote on challenges 165 Gallivan also the multi- not, may arbitrary the State later county signature requirement provision treatment, disparate person's value one ground Equal it contravenes over that another. vote Protection Clause of the Fourteenth Amend- Gore, 98, 104-05, Bush v. U.S. S.Ct. Constitution, argu- ment to the United States (2000). 525, 148 L.Ed.2d 388 ing imposes severe and discriminatory Petitioning place restrictions on the initiative T 69 an initiative on the right effectively integral because it part increases rela- ballot is of Utah's initiative weight signatures registered of the procedures processes inextricably and is rural, sparsely populated right voters in the coun- intertwined with the voters' to vote on concurrently initiatives, diluting serving gatekeeping ties while the relative function to weight signatures of the Ogilvie, of voters to vote. See Moore v. 814, 818, urban, counties, thus discrimi- U.S. 23 L.Ed.2d populous more (1969). nating against by allowing petitioning place urban voters rural Because an ini gatekeepers prevent integral part voters to act as who can tiative on the "an ballot is qualifying placement process," procedure pass initiatives from on election "must against charges the ballot. Gallivan asserts that because the muster of discrimination multi-county signature requirement severely abridgment to vote" under voters, Equal According- burdens the of urban the re- Protection Clause. Id. added). (emphasis the multi- Id. at 83 S.Ct. 801 determine whether ly, we must Striking Georgia county-unit sys down the county signature violates tem, the Court reasoned: of the Fourteenth Equal Protection Clause given can person How then one twice or Amendment. voting power per- ten times the another merely son in a statewide election because Requirement Multi-County Signature he a rural lives in area or because he lives Ogilvie Moore v. under county? in the rural smallest Once the 170 For decades the United States Su- geographical representa- unit for which a unconstitutional state preme Court has held designated, tive is to be chosen is all who disparity is a in the election laws when there participate in the election are to have an voting power simi- political and of the voters race, equal vote-whatever their whatever 1962, larly In situated within state. sex, occupation, their whatever their what- court that reversed federal district Court income, ever and wherever their subject that it lacked matter had determined may geographical home be in that unit. remanded, jurisdiction ordering by Equal This is Protection regarding a trial district court conduct Clause of the Fourteenth Amendment. claim that the state asserted constitutional added). 379, (emphasis Id. at 83 S.Ct. 801 act was "offensive to the apportionment year, The next United States Su- Amendment" in that it effected Fourteenth preme held Court unconstitutional Alabama's gross disproportion representation of "a system, stating: apportionment voting population" because the act's "classifi- achieving Since the of fair and effective the voters in counties cation disfavors representation concededly for all citizens is reside, appellants] placing them in [the which legislative apportionment, the basic aim of unjustifiable in- position constitutionally of Equal we conclude that Protection irrationally equality voters in fa- vis-a-vis guarantees opportunity Clause Carr, Baker v. 369 U.S. vored counties." equal participation all voters 207-08, 691, 186, 7 L.Ed.2d 663 82 S.Ct. legislators. Diluting election of state (1962). weight place of votes because of of resi- {71 1968, impairs Then the United States Su dence basic constitutional just Geor under the Fourteenth Amendment as preme Court declared unconstitutional Equal gia's county-unit system under much as invidious discriminations based upon factors such as race or economic sta- Protection of the Fourteenth Amend Clause 379-81, Sanders, 368, Gray v. 372 U.S. tus. ment. (1963). 801, In 9 L.Ed.2d 821 S.Ct. 8 Sims, 533, 565-66, Reynolds v. 377 U.S. Georgia's county-unit system gave "ev Gray, 1362, (citing 12 L.Ed.2d 506 S.Ct. ery qualified voter one vote in a statewide Educ., 483, 74 Brown v. Bd. 347 U.S. S.Ct. of election; counting [Geor but in those votes (1954); Illinois, 686, v. 98 L.Ed. 873 Griffin county system gia] employ[ed] unit which 12, 585, 76 S.Ct. 100 L.Ed. 351 U.S. weight[ed] the rural vote more in end result (1956); Douglas California, 372 U.S. weight[ed] heavily than the urban vote and (1963). 9 L.Ed.2d 811 83 S.Ct. rural counties heavier than other some small reasoned, "Weighting Reynolds, the Court larger Id. at 83 S.Ct. rural counties." differently, by any meth the votes of citizens Declaring county-unit system un 801. means, merely they because of where od or constitutional, Court, adopting one reside, hardly justifiable." happen seems principle, explained: person, one vote 1362. 377 U.S. at 84 S.Ct. equality foregoing cases address conception political T73 While

The petition Independence, to Lin- votes rather than a voter's the Declaration of Address, Fif- Gettysburg to the coln's legislation or direct place a candidate Seventeenth, ballot, "one teenth, applied the Court and Nineteenth thing- only can mean one petition Amendments person, principle vote" one at Ogilvie. in Moore v. person, one vote. context one registered properly distributed 818-19, At issue in Moore was voters nominating petitions inde remaining may use among the 53 counties form "Itlhe party to elect candidates to office. a new place on the Illinois pendents to obtain 89 S.Ct. 1493. ballot." 394 U.S. Id.12 person, the "one one explained that Court applied T 75 courts have Moore to Several peti applied to nomination principle vote" laws that discriminate be invalidate election petitions of such tions because the use populous sparsely settled tween voters of integral part [Iilinois's] election is an See, Thomson, e.g., Blomquist v. counties. by a system. procedures All used (10th Cir.1984) (holding 739 F.2d part of the election integral an two-county Wyoming rule unconstitutional charges pass against must muster Moore); Party v. State under Communist abridgement or of discrimination (7th Elections, Bd. 518 F.2d Cir. right to vote. 1975) two-county (holding Illinois rule uncon omitted). (citation Id. Davoren, Moore); stitutional under Baird v. Moore, 174 In the Court held that (D.Mass.1972) 515, F.Supp. (holding 522 346 signatures from requiring statute 200 Illinois equal protection election law violates because qualified voters in at least 50 of the state's discriminating the effect of between it "has 102 counties unconstitutional was under populous sparsely-settled in voters coun according Equal to the one Protection Clause ties"); Party v. Socialist Workers Rockefel 818-19, principle. at person, one vote Id. 89 (S.D.N.Y.1970)(in ler, 984, F.Supp. 314 990 in The statute at issue Moore S.Ct. 1493. rural, validating granted law that voters in 25,000 required at least voters statewide to populous equal "an less counties absolute sign petition qualified and 200 a nomination power veto over the nomination of candi sign petitions in each of voters to nomination date"); Hare, Party Socialist Workers at least 50 the state's 102 counties before (E.D.Mich.1969) F.Supp. (holding placed on the ballot. Id. candidate could be "discriminatory that election law that is case at 89 S.Ct. 1493. At the time the against populous in voters counties" violates Court, percent pending 98.4 was before protection). equal population of the total was concentrat state's only populous Then, ed in the 49 most counties and in United States Dis in percent population 6.6 of the resided trict Court for the District of Idaho held remaining Id. at unconstitutional an Idaho 58 counties. S.Ct. sponsors "signatures require [from]

1493. The Court held the Illinois obtain percent qualified obtaining signatures in 50 coun at least 6 electors from ment unconstitutional, stating: each of" 22 of Idaho's 44 counties before an ties qualifies placed to be on the Idaho against ... the resi- The law discriminates general election ballot. Idaho Coalition populous counties of the dents of the Cenarrusa, Bears v. No. 00- United Civ. It, therefore, for in favor of rural sections. (D.Idaho 0668-S-BLW, slip op. at 9-10 Nov. equality lacks the to which the exercise of 2001). The Idaho District Court conclud political rights entitled under the Four- stated, governed ed that Moore that case and teenth Amendment. "Idaho's law suffers from the same flaw as 1493. The ex Id. at 89 S.Ct. Court law in Illinois struck down Moore." Id. plained: explained: at 10. The court in this Tlinois law the electorate Under of the counties which contain 98.4% the population Because over 60% of Idaho's counties, may just registered po- not form a new resides in 9 of the voters State's casy party place litical its candidates on the it is to envision a situation where 3/4 25,000 remaining sign petition ballot. Yet 6.6% of Idaho's voters but fail to 106-07, different counties. 531 U.S. at Bush, 12. More the United States recently, Supreme Court reiterated the rule that states (citing Moore, S.Ct. 525 differently Equal cannot treat voters under the 1493, 23 L.Ed.2d simply they Protection Clause because reside in counties, they legal least 20 could not each of the ballot because get it on signatures equal to 10% of the total of all in the rural counties. 6% of the vote collect county votes cast for all candidates Id. governor regular general last at the argue that Moore is dis Intervenors governor election at which a was elected. Moore tinguishable from this case because 20A-7-201(2)(a)(ii) § (Supp. Aun. Utah Code placing third-par requirements for "involved 2001). Requiring signatures from at least 20 ballot," ty while "this case candidates intrinsically discriminatory counties regarding legislation." direct rules involves against voters urban counties because it However, provided have not us a intervenors impermissibly power exalts the of voters in why a different rule should cogent reason rural, sparsely populated counties: The mul- on the one hand and to apply to candidates ti-county signature requirement effectively only other. The difference initiatives on the weight signa- increases the relative petition place of a between the case tures of voters in the rural counties and and the case of a candidate on the ballot weight signatures diminishes the relative place an initiative on the ballot is petition to voters, permitting of urban rural voters person and the see- the first involves placement foreclose the of an initiative on the possibly could be ond involves an idea ballot, majority even if the voters suffrage is fun come law. The voters' the state desire the initiative to be on the infringed, regardless damental and not Utah, ballot. three-fourths of the state's voting for candi of whether the voters are population only resides in 4 Wasatch Front Additionally, in either dates or initiatives. Weber, Davis, Lake, counties: Salt case, multi-county requirement like the re a Further, percent of the Utah. 87.14 state's quirement at issue in this case would miti population in overall is concentrated the gate eliminate the voters' to vote sponsors in counties which the satisfied the the initia because neither the candidate nor signature county requirement individual placed Ac would ever be on the ballot. tive multi-county signature requirement. cordingly, in context of whether there is Comparatively, aggregate population of equal protection regarding ballot violation remaining 15 counties less than 13 access, bal the distinction between whether percent population. of the total To state's a candidate rather lot access is denied to ballot, place proposed a initiative on the a without a than to an initiative is distinction sponsors sig- would to meet the be difference, and therefore a different relevant requirement nature in at least 6 of the 15 required in this case. Idaho rule is not percent in than 13 counties which less Bears, No. 00- Coalition United Civ. for in population statewide resides and 16 of the 0668-S-BLW, Therefore, slip op. we at 10. only quarter a 24 counties in which apply Moore. population require- state's resides. Such dispro- an inordinate and ment concentrates multi-county signature require T78 The portionate qualifying control over amount of unconstitutionally in this case suffers ment placement initiatives for on the ballot to vot- as the Illinois law from the same infirmities counties, populous ers in those less effective- multi-county in Moore and the less severe ly preemptive affording a few voters a veto signature requirement of the Idaho statute placement proposed initiative on the over in struck down Idako Coalition United for solely upon county in which ballot based in Bears. As both Moore and Idaho Coali voters reside. those Bears, multi-county sig tion United for invidiously by in problem nature this case is exacerbated 179 This provision removal Code section 20A- Utah against in voters urban areas. discriminates 7-205(8)(a), multi-county signature requirement voters to remove The re which allows petitions signatures from initiative after quires sponsors to obtain pro- multi-county signature requirement requires sponsors 13. The Idaho law of an initia- sponsors petition multi-county signa- an initiative must petition meet vides that tive Idaho's signature requirement of 29 meet Utah's in 20 counties, ture of 44 or in half By way comparison, of Idaho's counties. counties, or more than two-thirds of the counties. rights protected by and Four- the First submitted to petitions have been plaintiff and after the teenth Amendments that certification county clerks for longer sig- against precise additional solicit to vindicate" "the sponsors can no seeks signatures. justi- put removed replace natures to interests forward the State as imposed its fications for the burden effectively an initia- provision allows removal by the removal of petition be defeated rule," extent taking into consideration "the signatures of voters' very number small necessary to which those interests make plaintiff's rights." target- specifically to burden petitions from initiative Indeed, oppo- in this case ed rural counties. (quotations S.Ct. 2059 U.S. conducted concerted of the initiative nents omitted). standard, rigor "Under this encourage vot- in rural counties to campaign propriety inquiry into the of a ousness of our signa- to remove their in those counties ers depends upon the extent to election law state petitions peti- after the tures from initiative challenged regulation which a burdens First clerks, county tions had been delivered rights." Amendment Id. Ac and Fourteenth 8,000 in rural counties and around voters subjected rights are cordingly, "when those effectively pre- signatures, removed their restrictions, regulation to 'severe' must qualifying venting the initiative 'narrowly drawn a state inter to advance " placement on the ballot. importance." (quoting compelling est of Id. Reed, 279, 289, 112 Norman v. S.Ct. and Idaho As in Moore Coali (1992)). L.Ed.2d 711 If the chal Bears, disparity power tion United for only lenged provision "imposes law election registered voters rural coun between the 'reasonable, nondiscriminatory restrictions registered in urban coun ties and the voters upon First Amendment and Fourteenth re ties under voters, important regu 'the State's constitutionally quirement impermissible, latory generally interests sufficient will not be such invidious discrimination (quoting justify' restrictions." Id. Thus, constitutionally multi- tolerated. Celebrezze, 780, 788, Anderson U.S. county signature requirement is unconstitu (1983)). 103S.Ct. 75 L.Ed.2d 547 Equal Protection Clause tional under the to the United the Fourteenth Amendment Ogilvie 1182 Moore v. controls the Because States Constitution. regardless outcome of this case of the level of scrutiny applied, apply we Moore and its Muilti-County Signature Requirement 2. prece- Supreme related Court United States v. Takush under Burdick dispositive. dent to this case and find it See Nevertheless, supra part L.B.1. Bur- under argued that States T81 It the United case, Takushi, serutiny applies. In dick strict this Supreme of Burdick v. Court case 2059, 428, 112 rights 119 245 there are severe restrictions on the 504 U.S. S.Ct. L.Ed.2d registered populous in most voters Utah's (1992), supplies the rule as to when strict counties, serutiny serutiny applies in election cases.14 The Su compelling to use strict us analysis. Supreme The United States Court preme explained Burdick: Court explained: considering challenge A to a state court a weigh "the Restrictions on access the ballot burden election law must character injury rights, magnitude of the asserted to the two distinct and fundamental "the However, above, right inapposite of initiative is that Burdick is as stated 14. Intervenors contend Constitution, involving right a case ballot access for a fundamental under the Utah because it is case, multi-county applied than for and as in this candidates rather ballot access initia signature requirement gatekeeping a serves func citing contend, intervenors tives. Specifically, Hoyle v. District of Arkansas case of the Western burden the can, cases, tion that in certain funda Priest, (W.D.Ark.1999), by precluding placement F.Supp.2d 827 mental vote 59 by majori Supreme supported Court case of Massachu on the ballot of a initiatives Massachusetts event, Group Secretary ty people v. of the state. Public Interest Research setts 85, section, Commonwealth, explained previous 375 Mass. N.E.2d in the there is no 1175, (1978), voting a distinction between candidate nominat for candidate relevant supra right, ing petitions petitions. and initiative fundamental while right to have an initiative on the ballot is not. 1988). (Utah Second, proffered justifica individuals to for the right of associate beliefs, political and the tion that the require advancement of voters, qualified regardless of their ment exists to ensure support statewide for initiatives fails under Moore Moore itself political persuasion, their votes ef- to east fectively." ... rejected justification this as a for a law that against political rights discriminates rights are at When such vital individual registered Equal voters in violation of the stake, a State must establish that its classi- Moore, Protection Clause. at U.S. 818- necessary compelling fication is to serve 19, explained 89 S.Ct. 1493. The Court interest. Moore: Bd. Elections v. Illinois State Socialist argument It is no answer to the under the 184, Party, Workers 440 U.S. S.Ct. Equal Protection Clause that this law was (quoting 59 L.Ed.2d 230 Williams designed require support statewide Rhodes, 23, 30, 89 S.Ct. launching political party new rather than (1968)). multi-county signa L.Ed.2d support from a few localities. This law requirement against urban ture discriminates applies rigid, arbitrary formula to in rural coun voters because allows voters sparsely populous settled counties and disproportionate power ties to wield over alike, contrary counties to the constitution- placement of initiatives on the ballot. See equality among al theme of citizens ¶¶ 45, Thus, multi-county 78-79. swore political rights. exercise of their The idea signature "_ impose a does not group that one granted greater can be 'reasonable, nondiscriminatory restric voting strength than another is hostile to upon ... tion[ of voters" J' man, repre- the one one vote basis of our populous more counties of the state. Bur government. sentative dick, (quoting 504 U.S. at S.Ct. 2059 Therefore, although governs Id. Moore Anderson, at U.S. case, multi-county signature requirement Burdick, Accordingly, mul- 1 83 under pass does not constitutional muster under the ti-county signature "must be serutiny strict test of Burdick. narrowly drawn to advance a state interest of compelling importance." U.S. II. FREE SPEECH 2059; S.Ct. see also Illinois State Bd. of $84 Gallivan also contends that Elections, (not 440 U.S. at 99 S.Ct. 983 multi-county signature requirement is uncon ing that "where on access restrictions to the " speech stitutional because it violates the free involved," may ballot are 'a guarantees of the First Amendment unnecessarily choose means that restrict con I, United States Constitution and article see stitutionally protected liberty,, [and must] tion 15 of the Utah Constitution. Because adopt the least drastic means to achieve their upon we decide this case based the funda Pontikes, (quoting Kusper 414 ends" v. U.S. rights arguments mental associated with the 51, 58-59, 303, 38 L.Ed.2d 260 operation provision, uniform of laws (1973))). justifications sup The advanced Clause, Equal Protection we do not need to port multi-county signature require address these additional constitutional chal ment, paragraph opin set forth 47 of this ¶51, 8, lenges. Telford, See State v. 2002 UT ion, "narrowly are not drawn advance 228; City Corp. Prop. 48 P.3d Lake v. Salt compelling importance." state interest Comm'n, 41, Tax Div. State Tax 1999 UT Burdick, 434, at 112 S.Ct. 2059. ¶ 346; 30, Lopes, v. 1999 979 P.2d UT First, justifications proffered fail to meet 4, 191; Colour, Valley n. P.2d Inc. v. 980 heightened-serutiny analysis our own under Builders, Inc., Beuchert 944 P.2d 363 n. operation provision the uniform laws (Utah 1997). ¶¶ Constitution, 47-63, supra see Utah which exacting" if "is at least as not more so than III. SEVERABILITY Equal Protection of the Four Clause Having concluded that section Supply teenth Amendment. Mountain Fuel City Corp., un- Co. v. Salt Lake 752 P.2d of the Utah Code is Leg fundamentally whether the constitutional, if that sub- test is must determine we "Tthe passed the statute with the rest of the islature would have from is severable section ie., objectionable[, the unconstitu enabling statute. out initiative ...." 211 P.2d part 116 Utah at tional] intervenors, governor, 1 86 The lieutenant 193; Berry, 717 P.2d at 686. see also multi-county argue that legislature from is not severable signature requirement [ legislature in the did not include The and that there- of the statute the remainder enabling express indica- statute only option light of its court's fore this legislative regarding the of its intent tion 20A-7-201(2)(a)(®) un- is holding section severability potentially unconstitutional and strike down is to invalidate constitutional Therefore, we must portions of the statute. enabling statute. Galli- the entire initiative enabling whether the initiative determine setting forth that the subsection van counters multi-county operable without statute is is ini- signature requirement and whether and that it integral part of the statute not an legitimate enabling statute furthers a tiative statutory the overall can be severed purpose provision. without scheme, of the initiative en- leaving the rest [ abling operable and effective. statute enabling still 90 The initiative statute is operable offending is after subsection {187 reviewing the construc When multi-county without removed. Even statutes, general 'that rule is "[the tion of enabling signature requirement, statutes, possible, are to be construed where process and a workable statute establishes constitutionality. Ac so as to sustain through which the citizens of framework might be cordingly, portion if a of the statute constitutionally guar- Utah can exercise their by severing part that is unconstitu saved directly legislate fun- right to via the " anteed tional, Lopes, be done.' State such should power. procedure damental ¶ 18, (quoting 980 P.2d 1999 UT placing an initiative on the ballot would Club, Liquor Inc. v. Control Celebrity Utah system function at least well as the cur- 1982)). (Utah Comm'n, 657 P.2d rently place. Simply excising the multi- if determining an uncon county signature from the initia- from its subsection is severable stitutional enabling nothing statute does to affect statute, legislative in "we look to umbrella operability. the statute's legislature's tent." Id. at 119. When T The statute still furthers the intended stated, "turn to the expressly intent we legitimate enabling peo- purpose itself, remaining statute and examine right,. ple's initiative As we have indicated in rela portion of the statute VI, previously, article subsection section Upon portion." Id. re tion to the stricken requires legislation to enact opera and its viewing the statute as a whole people to exercise their re- enable subsection, offending "[f tion absent directly legislate power served operable and still remainder of the statute through supra initiative. 1128-29. The legislative purpose, the furthers the intended purpose enabling clear of the initiative stat- Id.; see statute will be allowed to stand." ute, therefore, must be to establish a frame- Corp., 717 P.2d Berry also v. Beech Aircraft through which the citizens of can work 1985) (Utah (Severability, where VI, effectuate their reserved article section unconstitutional, primarily part of an act is Indeed, power. enabling initiative stat- intent[,] gener which a matter of and ute itself invokes Utah Constitution ally by remaining is determined whether "Ibly following procedures states portions of the act can stand alone and serve (citations enabling initiative requirements [the and legitimate legislative purpose." statute], may, subject omitted, Utah voters original)); v. alteration in Stewart Comm'n, VI, P.2d 779-80 Pub. Serv. Con- restrictions of Article See. Utah (Utah Simmons, any 1994); chapter{,] ... initiate stitution this Union Trust Co. (1949). 422, 429, 116 Utah 211 P.2d legislation it to be desired and cause submit- Co., people." ... Utah Code In further noted that ted to vote of Union Trust we (1998). Moreover, § legislature they Ann. cannot 20A-7-102 claim that would not "purpose" has stated that the of the court enabling have enacted the initiative statute enabling people is "that the initiative statute multi-county signature without require- permitted express their will to vote and making ment because such a claim the Toronto, proposed legislation." Cope v. legislature admitting would be it would 255, 259, 2d 332 P.2d have chosen to shirk duty its constitutional curiam). (per establish a framework for the exercise of the people's constitutionally guaranteed initiative overriding controlling pur- 192 The right. legislature, areWe certain the had it pose enabling of the initiative statute is still known of unconstitutionality of the multi- multi-county signature furthered without the county signature requirement, would have requirement. purpose Because the responsibility met its constitutional enact- statute is to enable the citizens of Utah to ing enabling the initiative statute without the legislate through unconstitutional subsection. multi-county signature the removal of the impact would not the effectua- Therefore, multi-county T 94 signature right, purpose tion of the initiative requirement set forth in section 20A-T- fact, statute is still furthered. the remov- 201(2)(a)(ii)is severable because the remain- multi-county signature requirement al of the enabling der of the initiative statute will con- overly minimum at a eliminates an burden- operable tinue to be and continue to serve a discriminatory some hurdle to the exercise of legitimate legislative purpose after un- in doing effectively so makes it multi-county signature require- easier for the citizens of Utah to exercise provision ment is excised. constitutionally guaranteed legislative words, power through initiative. In other CONCLUSION purpose enabling of the initiative statute perhaps through better furthered the ex- reasons, foregoing 1 95 For the the multi- multi-county signature require- cise of the county signature requirement is unconstitu ment. first, independent, tional it because vio operation lates the uniform provision of laws Finally, question T 93 as to the of whether Constitution, of the Utah and also because it legislature would have enacted the initia- Equal violates the Protection Clause enabling statute tive without the constitu- Additionally, United States Constitution. tionally multi-county signature infirm re- the unconstitutional quirement, we note that the constitutional of Utah Code section 20A-7- VI, mandate article section 1 dictates 201(2)(a)(i) is severable from the statewide legislature legislation must enact to en- enabling Accordingly, initiative statute. Gal- power. able the exercise of the initiative Be- petition extraordinary livan's for an writ is legislature cause the would be granted, governor and the Heutenant is or enabling legislation enact place dered to event, initiative on the requirement, under the constitutional general electionballot.15 legislature would have to enact the rest enabling of the initiative statute without the words, provision.

unconstitutional In other T 96 Justice HOWE concurs Justice opinion. would have enacted the initia- RUSSON's enabling statute without the multi-coun- DURHAM, Justice, concurring: Chief ty signature requirement because is com- VI, pelled opin- to do so subsection 2 of I article concur with Justice Russon's ("Federal ion, exception section 1 in order to enable the citizens to with the of Part B Protection"). power. Equal Having exercise their reserved concluded statutory 15. The deadlines established in the ini- fore, all is in this case is for the required enabling inop- governor tiative statute have been rendered lieutenant to ensure that the initiative is by litigation. by erable in this case the instant The on the ballot that date. The deadlines estab- operable enabling time frame in case is this November lished in the initiative statute otherwise general proposed date of the the election. There- remain effective for future initiatives. (1987); 2095, 2100, 95 L.Ed.2d requirement vio- S.Ct. ¶ 4 Herrera, n. constitution, ought 1999 UT the court lates the Utah performing a facial P.2d 854. Instead of view, in effect an not, what my offer ma analysis question presented, question. the federal advisory opinion on ap the statute as jority seemingly addresses that state has determined this court When plied. chal- permit not law does action, fully the case is lenged Second, majority's I deci 1 100 believe resolved, federal claim becomes and the ability initiative equate people's sion to be a fundamental to me moot. This seems right fundamental to vote be with the federalism, and consistent characteristic unsupport development, untested and new gen- should perspective that courts with analysis majority's I able. believe applica- the narrowest erally cases on resolve inadequate process is the initiative nature of specific reasons exist for grounds unless ble majority merely concludes that and the agree that the guidance. I offering broader ability changes to the law people's to seek one, important an question is federal process is the same as through the initiative Supreme Court perhaps States the United process, the initiative voting because analytic contri- court's appreciate this would conclusion, right involves the to vote.1 at its question reaches that if the bution when and Bears, (in United Idaho Coalition right court agree I that the to initia- 1 101 While for that this is funda- example), Constitution, I think but granted within the State tive is case, given unique mentally law a state right agree I this is unfettered. do not VI, § language Article lawmaking has 1 estab- the state plain The that initiative role any con- system, absence of federal and the ability legislate people lishes counterpart. reasonably stitutional process as through the initiative legislature.

defined and controlled THORNE, dissenting. Judge, responsibility of this court to While it is the does not unrea- ensure from both the respectfully I dissent ability, I sonably restrict this would conclude 20A-7-201(2)(a)@®M) conclusion that section geographic distribution abridgement of creates an unconstitutional unreasonable; not not therefore does analysis and from the Utah Constitution ability legislate. infringe upon people's right with the equates vote, thereby establishing the "initia- right to approach adopted 1 102 Rather than the relatively right" one of the few funda- as majority, I address Petitioners' would rights. mental following analysis: arguments with the First, presented this Petitioners have challenge the use of with a facial court FEDERAL ANALYSIS I. geographic non-population based distribution {103 argue process. first that Utah To Petitioners 20A-7-201(2)(a)@) (Supp.2001), § succeed, Ann. must demonstrate that Code Petitioners requiring Petitioners to demonstrate broad- under which such re no circumstances exist support2 geographic before an initia quirement can found constitutional. Unit based be ballot, Salerno, 739, 745, placed can violates 107 tive be ed States v. may majority position recognized I also believe fundamental, has diminished prac- majority persuasive equ- had the party kept have been more if the can be off the ballot" tical value right with to associate however, ated the initiative (citation omitted)). majority, does party. underlying political The reasons as a analysis approach. attempt join political person's or create a new decision to cases, may, party identical to their in some be language plain of section 20A- 2. Pursuant utilizing process, reasons for 7-201(2)(a)(@i), were to ob- Petitioners therefore, may subject protections. to similar specified signatures of coun- tain from a number State Bd. Elections v. Socialist See Illinois Throughout refer to this re- ties. this dissent I 173, 187, 983, 991-92, Workers, 440 U.S. "geographic quirement distribution either as the (1979) (stating freedom of "[the 59 L.Ed.2d 230 20A-7-201(2)(a)@i). party, requirement" or as section political we have association as a

1101 bama, 88, 95, 736, 310 U.S. 60 S.Ct. equal 84 L.Ed. principles protection federal (1940)). speech. 1093 freedom speech 1106 "The freedom of and of the ability pursue change 1 104 The a in the press guaranteed by the Constitution em through process solely a law at liberty braces the least to discuss Grant, right. Meyer state-created See v. 486 publicly truthfully public all matters of 414, 424, 1886, 1893, 108 S.Ct. 100 U.S. previous concern without restraint or fear of (1988); L.Ed.2d 425 Save Palisade Fruit subsequent punishment." 421, Id. at 108 (10th Todd, 1204, lands v. 279 F.3d 1211 Thornhill, (quoting S.Ct. at 1892 310 U.S. at Cir.2002); Moore, Dobrovolny v. 126 F.3d 101-02, 60 S.Ct. The First Amendment (8th 1111, Cir.1997); Biddulph v. Mort "was fashioned to assure unfettered inter (11th ham, 1491, Cir.1996); 89 F.3d change of bringing ideas for the about of Taxpayers United Assessment Cuts v. political changes by and social desired (6th Austin, 291, Cir.1993); 994 F.2d people." (quoting States, Id. Roth v. United County Supervisors, Bowers v. Polk Bd. of 476, 484, 1304, 1308, 77 S.Ct. (Iowa 2002). 682, 638 N.W.2d Absent a (1957). L.Ed.2d 1498 Petitioners seek to provision creating right, state an initia utilize the initiative politi to achieve right does exist and no violation of change by cal in exercising right Todd, possible. the U.S. Constitution is See engage freely concerning discussions 1211; Jones, 279 F.3d at Bates v. 131 F.3d change guaranteed the need for that by (9th Cir.1997) 843, (O'Seannlain, J., con the First Amendment. See id. Austin, 295; curring); 994 F.2d at Massa Meyer, 1107 In Supreme Court re- chusetts Pub. Group Interest Research v. viewed a prohibited Coloradostatute that Commonwealth, Secretary 375 Mass. paid personnel use of to assist the circula- (1978). However, 375 N.E2d petition. tion of an initiative See id. at process, once state creates an initiative 108 S.Ct. 1886. The Court struck down this system comport protections must with the prohibition as violative of both the First and afforded under the U.S. Constitution. See the Fourteenth Amendments. See id. at Austin, 295; Priest, Hoyle 994 F.2d at 59 Court noted that: (W.D.Ark.1999). F.Supp.2d Includ circulation petition {the of an initiative protections right equal ed these are the necessity expression involves both the of a protection under the law and the political change desire for and a discussion speech. freedom of id. proposed change. merits of the Al- though petition may cireulator not have persuade potential signatories that a A. Speech Free particular proposal prevail cap- should {105 The First Amendment of the United signatures, ture their she will at he or least provides Congress States Constitution persuade have to them that the matter is abridging "shall make no ... law the free- deserving public serutiny one speech, press; dom of or of the or the debate that would attend its consideration people peaceably assemble, peti- and to by the whole electorate. This will al- tion the griev- Government for redress of every explanation most case involve an Meyer, ances." why 486 U.S. at at proposal S.Ct. the nature of the its (1988); support Thus, see also U.S. Const. amend. IL advocates it. the circulation " speech press, [Thhe freedom of and of the petition type of a involves the of interactive concerning political change communication by which are secured the First Amendment against States, appropriately "core abridgment by described as the United political speech." among personal rights the fundamental 421-22, which Recog- persons Id. at liberties are secured to all S.Ct. 1891-92. against abridg- Fourteenth Amendment nizing persuading sign citizens to " Meyer, ment necessarily State." 486 U.S. at political speech, involves (quoting 108 S.Ct. at 1891 Thornhill v. Ala- allowing and that there is value in citi- review of pre-submission content through that change tend political freely zenry seek to unconstitutional, or to petitions is initiative Colo- viewed process, the Court any issue. Her qualification peti- publicly on other speak on the limitation rado's way depends on speech in no right to free unreasonable restraint as an tion cireulators the bal- initiative] on presence at [the id. speech. See on free law, Moreover, no and we she cites lot. unreason- Thus, any that state statute 1886. none, right have a establishing a to find speech-citizens political ably prohibits core proposition on the ballot. particular during an issues debating political openly closely seruti- process-must Finlay, 1053; Washington v. see also Id. at Cir.1981) (4th (noting F.2d 927-28 nized. equate to an enti speech does not free that today, court In the case before get attempt to a in one's tlement to suceess federally-protect- their claim that Petitioners ballot). viewpoint on the political violated. speech has been to free ed argument: mistakenly rely upon lan present a twofold T Petitioners Petitioners First, speech they that their free noted guage Meyer, claim in where Court un- they were infringed been because speech have may political burden a statute gar likely appeliees will making it "less on the getting their in successful necessary 20A-T- argue signatures that section to They next ballot. ner the number 201(2)(a)(ii) political ballot, limiting upon core infringes on the thus place the matter in focus of ability I each turn. make the matter the speech. address Meyer, 486 U.S. at statewide discussion." argue that their free first 109 Petitioners Petitioners take 108 S.Ct. at 1892. they infringed because speech right has been thereby its subvert quote out of context placing their initiative unsuccessful were viewed, Meyer meaning. Fully the Court satisfy a their failure to the ballot due to on stated: requirement. Free geographic distribution pay appellees permit The refusal however, success guarantees neither speech, political ex- restricts petition cireulators nor eventual the ballot placing an item on First, ways: it limits the in two pression Rather, speech free by voters. ratification convey appel- will voices who number of during ideas interplay in the found they can message the hours lees' curiosity and attempt capture the voters' therefore, and, limits the size speak Kauger, 92 F.3d support. Skrzypesak In Second, they reach. it makes can audience (10th Cir.1996), an woman Oklahoma garner the likely appellees will it less general sought place an initiative on necessary place signatures number grounds that ballot but was refused ballot, limiting their thus the matter on See id. at unconstitutional. the initiative was focus of ability make the matter claiming brought The woman suit discussion. statewide subject to a initiatives be 422-23, at 1892. 108S.Ct. Id. placement on the ballot con- screening before speech. her free restricting prior restraint on explained that stituted T111 The Court her Tenth Circuit dismissed See id. The free paid cireulators violated the use did not concluding that the woman claim "prohibition against speech because her initia- to have have has the inevitable paid circulators use id. at 1053. placed on the ballot. See quantum of reducing the total effect of The court stated: public Id. at speech issue." on reading of A more correct legal- at 1892. mistakenly her S.Ct.

Skrzypezak conflates infringed speech was speech Meyer with is not that free ly-protected in free interest law made it simply because the in that case personal initiative] have [an her desire to enough garner likely that citizens would removing less [the initiative] on the ballot. be the violation occurred ballot, Supreme signatures, but from the the Oklahoma signatures which Skrzypezak from cause the manner prevented Court has not (which necessarily in garnered subject. to were to be speaking She is free political speech) was unreason- abortion, to con- cluded core argue against legalized ably Thus, due rights under the United States regulation restricted. gather makes more difficult signatures Constitution they because had insufficient support initiative, of an itself, in and of prior notice of the signatures number of re- necessarily does not infringe quired. See speech. free finding id. In that the state Todd, See 279 F.3d at 1211 (noting "the provision constitutional did not any violate speech to free ... implicated by [is] not federally protected rights, Eighth Circuit state's creation of an procedure, initiative but stated: only by the attempts state's regulate to [Tihe provision constitutional at issue here speech associated with an proce does not in way impact the communi- (emphasis added)); dure. Biddulph, 89 F.3d appellants' cation of political message or at 1498 n. 7 (recognizing Supreme otherwise restrict the circulation of their Court in Meyer set forth "a distinction be petitions or their ability to com- power tween a regulate state's to the initia municate with voters about proposals. their process general power and the to Nor provision does the regulate the con- regulate ideas."). exchange of tent appellants' political speech. While face, 1112 On its section 20A-7- provision Nebraska may have made it 201(2)(a)(i) does not limit or restrict Peti difficult appellants plan their initia- opportunity tioners' engage political tive campaign efficiently allocate their speech, ideas, disseminate their or solicit resources, the difficulty process Rather, support.3 Petitioners required are alone is implicate the First insufficient to. popular meet both a support threshold and Amendment, long as as the communication geographic support distribution threshold of ideas associated with the cireulation of before their ideas are submitted to the citi petitions is not affected. zens for a Accordingly, vote. section 20A-7- added). Id. at (emphasis 1112-18 201(2)(a)(ii) requires Petitioners to dissemi 1 114 Accordingly, speech Petitioners' free political nate their message large to a num rights to political conduct during discussion people ber of across a geographic broad area the solicitation signatures and, later, dur in seeking place an initiative on the ballot. ing attempt persuade voters, is not In contrast Meyer, the situation in where infringed by 20A-T-201(2)(a)(ii). section See regulation prevented citizens from utiliz Hoyle, F.Supp.2d at 836 (finding that a ing effective, the "most fundamental, law requiring petition signers fully be perhaps political economical avenue of dis registered voters did not involve a restriction course, direct communication," one-on-one political core speech). Meyer, 424, U.S. at 108 S.Ct. at 20A-7-201(a)(ii) section encourages Petition 20A-7-201(@)(a)(ii) 1115 Section estab spread ers to political message via one- lishes the conditions that must be met for an on-one people communication with across a placed initiative to be on the ballot. Creat geographic wide regard, area. In this ing requirements such province is within the actually statute encourages speech free rath of the state. Takush, See Burdick v. er than unconstitutionally restricting it. 428, 433, U.S. 2059, 2063, 112 S.Ct. (1992) 118 Dobrovolny, appellants challenged L.Ed.2d (noting that "[clommon a state provision sense, constitutional as well law, as compels petition an initiative to have secured government conclusion that play must an signatures (10%) elections"). percent active role in structuring of ten regis- Estab tered voters in lishing requirements such Nebraska prevents frivolous date the initiative was submitted. See 126 F.3d at being placed initiatives from on the ballot appellants 1112. The and ensures that state funds and efforts are claimed the constitu- provision tional speech violated their free only utilized on those initiatives that have speech 3. Freedom of has been impli protected defined as speech); Dep't Chicago Police v. See, cating e.g., Riley several 92, 97-98, areas. Mosley, v. Nat'l Fed'n. 408 U.S. 92 S.Ct. N.C., 781, 789, Blind 487 U.S. 108 S.Ct. (picketing 33 L.Ed.2d 212 is form of free 2667, 2673, (1988) (acknowl 101 L.Ed.2d 669 speech). None of are appli these claimed to edging solicitation of charitable contribution is cable to Petitioners' case. Celebrezze, has stated Supreme Court States The United Anderson support. See broad-based equal an against uphold a law 103 S.Ct. n. it will 788 & 460 U.S. (1983) (noting protection neither burdens challenge that 1564, 1570, L.Ed.2d class suspect targets a right nor fundamental ensuring elec interest has a state bears classification legislative honestly and long fairly and so run are tions independent to some for enactment relation a rational submitted proposals Ev Romer v. support); end. legitimate sufficient they have law unless into 620, 627, ans, As the Austin, F.2d see also (1996). L.Ed.2d 855 difficulty stated, "the Dobrovolny court implicate insufficient alone {118 impermissible creates A statute the commu Amendment, long as First "dis impacts it when classifications suspect the cireula with associated of ideas nication minorities," States United and insular crete Dobrovol not affected." petitions tion of 144, n. Co., 152 304 U.S. Products v. Carolene 1113. ny, 126F.3d (1938), 4, 1234 L.Ed. n. 82 783 58 S.Ct. 20A7- that section I conclude 1116 people of larger class differently than Petitioners preclude 201(2)(a)(ii) Ma generally not See does by the statute. affected message nor disseminating any political (Utah Lewis, from 669-75 P.2d v. lan Rath- exchange of ideas. prohibit does 20A-T- argue that section Petitioners numeric a er, establishes the statute impact on a 201(2)(a)(ii) just such an creates before be reached must floor that geographic minority group-urban insular discrete no Since for a vote. presented however, an idea is in Petitioners, present dwellers. by the stat- infringed speech is political claim, core I have nor for this support adequate the statute that argument ute, Petitioners' authority for discover able to been First unconstitutionally burdens represent a dwellers urban proposition that without speech free worthy Amendment group minority and insular discrete merit. and constitutional suspect classification of Bowers, at 689 638 N.W.2d protection. Cf. Protection Equal

B. in counties who reside (noting "Iowans that are not population relatively small a with section argue that next Petitioners [larger in live who similarly to those situated Equal Protec 20A-7-201(2)(a)(ii) violates why legis exactly and this was counties]" of Amendment the Fourteenth tion Clause signature a 10% enacted lature Equal Protection The Constitution. the U.S. on the ballot get a bond "deny in all counties shall no state that provides Clause omitted))4 Petition (citations quotation equal jurisdiction its any person within Supreme States argue United ers do amend. Const. U.S. the laws." protection laws based down previously struck has "treat simi Court Thus, must laws XIV, § state 1. distinction, there and that on a a reason unless rural/urban alike people larly situated has Supreme Court States fore the United treating them different- for exists able basis 19, ¶ 70, inclusion inferentially 2001 UT countenanced Lafferty, 1y." v. rubric omitted). within the rural dwellers urban citations (quotations P.3d 342 relatively with counties reside in Supervisors, "Towans who County Bd. Polk 4. In Bowers 2002), similarly situated (Iowa petitioners not populations are small 638 N.W.2d sponsors of required counties] for populous which argued that a statute [more live in those who acquire signatures from 10% agree a bond with We this statute." purposes of gubernatorial or county the last in in each voters this vari- account for that to district court ten-day period vio- a within presidential election why legisla- exactly population is ance in the Iowa Clause of Equal Protection lated requirement, percent the ten enacted ture argued that voters petitioners Constitution. counties. As applies to all dif- were treated populous counties the more recognized, Supreme Court States the United areas, be- populous less ferently voters in can grossest discrimination "{slometimes obtaining signa- ten-day for time limit cause the different as treating things lie in adequate to collect time provide tures did exactly they alike." though were populated counties. signatures the more (alterations original) at 689-90 638 N.W.2d challenge, the Iowa rejecting the id. at omitted). (citations Supreme noted: Court " Blumstein, "suspect Dunn v. class." See minority," id. at 91 S.Ct. at as well 330, 336, 995, 999, U.S. 92 S.Ct. 31 L.Ed.2d class," as "identifiable id. at 91 S.Ct. at (1972); Lance, 1, 4-5, Gordon v. 403 U.S. 1892, but the Court did not adopt position 1889, 1891, (1971); 91 S.Ct. 29 L.Ed.2d 273 support holding would urban dwellers 814, 818-19, Ogilvie, Moore v. out protected as a Finally, Moore, class. 1493, 1496, (1969). I, S.Ct. L.Ed.2d rather identifying any than discrete and insu however, distinguishable. find these cases minority, lar the Court struck down an Ill- Dunn, they nois law instance, 1119 In determined Supreme upon intruded principle man, expressly vote," Court stated that "one "durational resi one a funda dence laws must be mental voting cases, measured raised in strict test," equal protection and, applying "rigid after because of the arbitrary formula" test, strict struck down Tennessee 818-19, statute used the state. Id. at 89 S.Ct. at that both year residence for one 1496.5 possibility and eliminated the of registering §120 majority Neither nor the Peti days prior to vote 80 to an election. 405 U.S. tioners have convinced me ability 330, 342, 360, 995, 1003, 1012, attempt change the law via the initiative (1972). L.Ed.2d 274 Rather than determin process is entitled to the protection same as ing place that of residence could be used to right the to vote. Nor can I support find for class, suspect establish a the Court decided proposition the that the classifications creat the issue right based on the to vote. Id. at 20A-7-201(2)(a)(ii) ined section implicate an 341-42, 92 S.Ct. at Similarly, 1002-03. the impermissible suspect or classification under in upheld Virginia Court Gordon a statute the Fourteenth.6 provided that attempt that pub to incur {121 lic debt approved by must be 60% of the part In the next equal pro of their 7-8, voters. 403 U.S. at 91 argument, S.Ct. at tection 1893. Petitioners claim that see Admittedly, body 20A-7-201(2)(a)(ii) the of opinion, the tion the voting violates their " phrase Court used the 'discrete and insular rights.7 support claim, In for this Petition- case, voting rights 5. In required this the formula geographic containing areas of Utah as a "dis- persons seeking that inclusion minority." on the crete ballot as and insular nontraditional candidates must submit a fixed 7. I am reasoning underly- unconvinced the registered number signatures voter from a ing majority the decision of the to declare the large number of Ogilvie, counties. See Moore v. people's right legislate to pro- via the initiative 814, 815, 1493, 1494, 89 S.Ct 23 equal cess voting right to the and therefore fun- (1969). L.Ed.2d 1 The Court held that this for stands, damental. majority As it approach mula, involving a fixed number without consider discusses the vital nature of fundamental consti- population ation for the size of the various coun concludes, tutional with little sub- ties, rigid arbitrary, was therefore violative discussion, stantive ability that change to of the Constitution. See id. at 818-19, 89 S.Ct. at through law process equal is 1496. voting right to the and therefore fundamental. Admittedly, majority proffers a number of 6. Additionally, requires only the statute that ini support proposition, cases this see infra supporters tiative signatures obtain in 20 of the However, 1166-74. reading a close of these 29 amounting Utah counties of the total 10% not, fact, they cases shows that support do county of all gubernatorial votes cast in that for majority's ability conclusion that regular general candidates in the last election in change the law via the initiative is fundamental. governor which a was elected. Nowhere in the dissent, infra, See note 20. statute are supporters directed to in Outside of Idaho Coalition United v. Bears for clude they certain counties nor are mandated to Cenarrusa, (D.Idaho Civ. No. 00-0668-S-BLW participation ensure the of either rural or urban 30, 2001), Nov. there a authority is dearth of Moreover, dwellers. may while it be true that support conclusion that a federal population figures larger along the Wasatch process initiative exists or that the initiative itself front, it is not true people that up who make implicates voting right a citizen's under the fed population fairly this can described as either eral Constitution. See v. Grant, 486 U.S. Meyer and, therefore, urban or rural 414, a 424, "discrete and 1886, 1893, 108 S.Ct. 100 L.Ed.2d 425 minority." insular safely Nor can (1988); it be asserted Todd, Save Palisade v. Fruitlands 279 people 1204, interests of up (10th who Cir.2002); make F.3d Dobrovolny v. purported group Moore, closely 1111, coincide or are (8th Cir.1997); even 126 F.3d Bid evidence, related. Without such it would be dif (11th v. Mortham, 89 F.3d dulph 1491, 1500 1996); Taxpayers Cir. ficult, if not United Assessment Cuts characterize most impossible, for a constitutionality grounds United Coalition tection Idaho rely upon ers for nominating petitions that Cenarrusa, 00-0668-S- statute No. Civ. Bears signatures 30, to include (D.Idaho Nov. candidates independent BLW least of at from each voters qualified of 200 judge case, court the district that € 122 In The Court counties. the state's 50 of in the unconstitutional ruled nominating peti use of "[the that reasoned signatures contain petition that Idaho Code place on to obtain by independents tions in' (6%) qualified voters percent six integral part [the] an [was] ballot court 14. The id. at 44 counties. 1495. 89 S.Ct. Id. at system." elective if the must determine "this Court stated proce "[alll further stated The Court on restriction a 'severe' is restriction integral part of as a State used dures 'se restriction [ilf ... vote pass muster must process election narrowly only if vere, upheld may be discrimination charges of against state inter compelling to advance drawn Id. at right to vote." abridgment of Burdick, 504 (relying upon Id. at est." con then The Court at 1495-96. S.Ct. L.Ed.2d 245 428, 112 S.Ct. U.S. Four violated the statute cluded argument rejected (1992)). court abridgement of as an Amendment teenth interest fundamental no that "there id. at vote. See right to candidates, measures, opposed as placing placing ballot," and found id. at Burdick, the U.S. Subsequently, to the entitled was the ballot a measure position its altered Supreme Court "disseminating ideas." protection same election affects the a law merely because Bd. (quoting Illinois at 9-10 Id. process. "integral" it was Workers, 440 U.S. v. Socialist Elections stated: the Court Burdick 991-92, L.Ed.2d 187, 99 S.Ct. invariably impose some will Election laws of a means ("[A]n campaign is election provi- Each voters. individual on burden attaining polit well as disseminating as ideas the code, governs whether of sion office."). ical voters, qualification of registration Dis- {123 essence, States the United In candidates, eligibility of selection the equated of Idaho the District for trict Court itself, inevitably af- voting process the or through the initiative legislate ability to the degree-the indi- least to some feets-at right and speech free both the with process right as- to vote and his right to vidual's con- Court's The District vote. right to political ends. others with sociate violated free the Idaho statute that clusion reg- every voting subject Consequently, to regu- may for states unpersuasive, speech is require serutiny to to strict ulation get measures which the means late narrowly tailored be regulation that the speech is not political core long as ballot as interest, pe- state compelling advance F.3d at 1113 Dobrovolny, 126 infringed. See of the hands would tie suggests, titioner ini- place (holding signature are that elections seeking to assure States upon impinge not did on ballot tiative efficiently.... Ac- equitably and operated (holding F.Supp.2d at 836 Hoyle, 59 speech); fact that State's cordingly, the mere signers to be requiring petition that a law tending to ... system creates barriers a re- not involve did registered voters fully from which candidates field of limit speech). political on core striction choose, itself ... does might voters decision, equating court's The Idaho 1 124 scrutiny. compel close the ballot matter on place a ability to omitted). (citations quotations Id. vote, unpersuasive. equally right with therefore, Court, abandoned 126 The at Moore, n I impact the elec all laws which approach that equal pro challenged on petitioners ability is Cir.1993); triggered a declaration (6th Austin, has not Bow 994 F.2d right independently voting or Supervisors, equal 638 N.W.2d County Bd. either ers v. Polk worthy protection {fundamental under a right (Iowa decision, this Prior 682, 692 process through ability legislate analysis. scrutiny heightened regulation, and subject to reasonable has been process tion unconstitutionally impinge the it could argued appellant's right Thus, to vote. right[ Idaho court's reli fundamental ] to implicated vote [is] within upon Elections, ance right Illinois broader bring State Bd. an initia- tive, and power adopts which approach, this absolutist initiative con therefore a right. fundamental However, flicts with reasoning in Burdick.8 nothing in the language of the [United case, 127 In the instant rely Petitioners States] Constitution commands direct de- upon support Moore to any their claim that mocracy and we are aware authority of no law that affects the process initiative per is a supporting argument. this fact, every infringement se upon decision of right which to vote. we are aware has held However, Burdick, initiatives light are reasoning state-created guaranteed therefore not is flawed. the U.S. Constitution. 1 128 Other agreed, courts have concluding Todd, 279 F.3d at 1210-11. limiting access to the ballot via the Moreover, a close reading process Meyer equate does not to restrict- supports the conclusion that ing United voting rights. one's example, For Supreme States Court accepted has Massachusetts Pub. Interest Research proposition that ability change the law Group, 1181-82, 375 N.E.2d at the Massa- via the process right is not a grant Court, Supreme chusetts performing almost ed either under the United States Constitu exclusively a analysis, federal law addressed implicated tion or within to vote. constitutionality of a county-distribution Meyer, 486 U.S. at 108 S.Ct. 1886. rule that restricted the maximum number of Rather, the Court concluded that the initia petition signatures that could be utilized is focused on the "discussion of county one qualify an initiative public policy generally advocacy for the Opponents ballot. legislation passage or legislation." defeat of Id. at claimed that it violated their federally pro- 1886; Austin, S.Ct. see also 994 F.2d at voting rights. tected Id. at 1181. The court (being unpersuaded signing of a disagreed, and found that county-dis- "[the petition to legislation initiate was entitled to tribution way rule no affects the protection the same exercising as right the to qualified voters to cast their votes for or vote); Hoyle, (not F.Supp.2d 834, 59 at 838 against an proposal initiative properly on the ing that signing petition a does not fall within ballot ... [nor does any it] dilute citizen's purview Voting Rights Act, vote." Id. at Circuit, 1181-82. The Tenth that there is right no under the federal con addressing also issue, an initiative said stitution to have an placed majority 8. fore, The has chosen to follow Moore and majority failing apply errs in to not the more cautious and approach more recent standard set forth in Burdick. used majority in Burdick. ignores The the fact Burdick, Under I would geo- conclude the that voting rights Moore's treatment aof claim graphic severe, distribution is not if represents evolutionary dead end. "Even for no simple other reason than the fact that though election invariably impose laws will some goal by Petitioners missed sig- their a mere 147 voters, burden on individual not all restrictions Moreover, natures. since the recent amendment on access to the scrutiny." ballot merit strict 20A-7-201(2)(a)ii) to section groups two have (2d v. Powers, 74 1367, F.3d 1378 Rockefeller successfully placed initiatives on the ballot. Peti- Cir.1996) (citations omitted). quotations tioners representation have made any no that subject every "To voting regulation to strict seru- group other has failed to collect the sufficient tiny require regulation and to that be narrow signatures number of required geo- with ly tailored to compelling advance a state interest graphic distribution. . would tie the seeking hands of States It is also deciding that since noteworthy Moore, assure operated equitably elections are exception with the of Illinois State Bd. Elec Takushi, efficiently." 428, Burdick v. 504 U.S. tions Workers, Socialist 440 173, U.S. 187, 99 433, 2059, (1992). L.Ed.2d 245 991-92, (1979), S.Ct. 59 L.Ed.2d 230 approach, Burdick, The as requires outlined in Supreme United States Court has not cited balancing competing interest rather than an controlling authority Moore as election or application immediate scrutiny. case, of strict voting thereby There reaffirming my belief that administering its initia ballot); County Bd. broad discretion Kelly v. Macon-Bibb (M.D.Ga. subject scrutiny only Elections, process is to strict F.Supp. circumstances.”). narrow 1985) in certain ‘right “This not a to vote’ (stating adopted referendums, Burdick then “flexible case; general court unlike elections reviewing for election cases that government, standard” are representative form for a requires weigh the character and courts constitutionally compelled.”). not imposed against magnitude of burden ¶ by reasoning of persuaded I 130 am justification State’s burden. U.S. agree cases above cited (relying upon at 2063 at S.Ct. change via the ability to the law Anderson, 789, 103 at 460 U.S. at S.Ct. 1569- right to equivalent to the vote. is not persuaded I to Petitioners’ claim Were be ¶ were I to assume that section 132 Even 20A-7-201(2)(a)(ii) implicates section 20A-7-201(2)(a)(ii) implicates Petitioners’ however, vote, my conclusion their right, not, voting which I do the burden In change. original today would 20A-7-201(2)(a)(ii) imposed section is not extraordinary writ, petition for Petitioners enough heightened level severe warrant adopt court the standard of asked that the 20A-7-201(2)(a)(ii) scrutiny. Section in Moore. See 394 U.S. at set forth review passes constitutional muster it im- because However, sup- in its 89 S.Ct. at 1493. poses only reasonable on Petition- burdens plemental Petitioners concede that the brief. ers. Burdick, at approach articulated in 2059, may ¶ the more 112 S.Ct. at be challenge 133 Petitioners the constitu- guide.9 applicable tionality geographic re- distribution quirement geographic and assert that all dis- ¶ Burdick, Supreme Court ac are on their face. tributions unconstitutional “[cjommon sense, knowledged that aswell challenge “A facial [statute] law, compels the conclusion challenge ... most difficult mount government play an active role in must successfully, challenger since must estab- structuring at elections.” U.S. that no lish set circumstances exists under The Court conceded that S.Ct. Salerno, which the [statute] would valid.” is of fundamental while vote U.S. at at 2100. The fact S.Ct. significance under the United States Consti 20A-7-201(2)(a)(ii) might operate that section tution, it is assume that all laws erroneous to unconstitutionally under some conceivable impose upon right to a burden vote set of circumstances is insufficient render subject scrutiny. id. at 432- are to strict invalid, wholly Supreme since U.S. 33, 112 S.Ct. at 2062-63. This conclusion recognized Court has “not an ‘overbreadth’ departure from the constitutes a distinct doctrine outside limited context Moore, holding acknowledges Court’s for it First Amendment.” Id. all “an that not election laws considered ¶ part process” subject integral of the election 134 Petitioners have to failed shoulder 818, heavy scrutiny.10 U.S. at 89 burden strict S.Ct. to demonstrate that sec 20A-7-201(2)(a)(ii) 1496; Mortham, facially v. Biddubph at also 89 tion is see unconstitu (1996) 1491, 1500 (finding unpersuaded a I “state’s tional. See id. am that no F.3d reason, proper misplaced is law be is Burdick statement of the 10. For same for both majority rely upon Petitioners and such applied. Sanders, Gray pre-Burdick cases as v. U.S. (1963), 83 S.Ct. 9 L.Ed.2d 821 where acknowledge per- 9. avoid Petitioners that "to system” "county-unit Court struck a down forming scrutiny analysis a [each] strict time a given disproportion- which rural counties were plaintiff complains law vio- state election power primary voting ate share in a as violat- Amendments, lates First or Fourteenth [the Clause, ing Sims, Reynolds Equal tire Protection require federal have courts] softened the test S.Ct. L.Ed.2d plaintiff that a show that her First Fourteenth (1964), weighing which the votes found subject Amendment 'dis- 'severe' or place differently of citizens because of of resi- criminatory' scrutiny before strict is restrictions position justified support dence is not for its triggered.” Supplemental at Petitioners' Brief geographic requirement 20A- section 7-201(2)(a)(ii) equal protection. 18 n. 20. violates set of circumstances exist where a geograph related achieving goal. Thus, this Peti ic distribution would be valid under the Unit tioners' claim that all geographic distribution Rather, ed States Constitution. I am per requirements Equal violate the Protection suaded the fact least thirteen Clause of the Fourteenth Amendment is other states have created citizen initiative without merit. schemes that geographic include a distribution Petitioners) I now consider claims

req Likewise, I also find uirement.11 pursuant to the Utah Constitution. persuasive the fact that other courts have geographic reviewed require distribution IL STATE CONSTITUTIONAL

ments and have found them to be constitu Bowers, tional. See 695; 638 N.W.2d at ANALYSIS Massachusetts Pub. Interest Research 1 138 remaining Petitioners' avenue for re Group, 375 N.E.2d at Having failed to lief lies in their claim that Utah Code Ann. possible discredit all geographic distribution 20A-7T-201(@)(a)(ii) § facially unconstitu schemes, equal protection Petitioners' argu tional under the Utah Constitution.12 Peti ment fails. argue tioners that under the Utah Constitu Consequently, face, geo- its tion, people's sovereign right to enact graphic requirement distribution implicates legislation through the can federally neither recognized fundamental subject never be geographic to a distribution rights of speech free nor the to vote. requirement. predicate Petitioners their ar Nor does the create distinctions gument (1) on two claims: statutory upon any based previously recognized sus- geographic distribution requirement violates pect Therefore, classification. if the statute guarantees speech of free set forth in reasonably legitimate related to a govern- I, 15; (2) §§ Article 1 and the geograph interest, ment I must conclude that it is not ic distribution I, violates Article violative of the United States Constitution. (the § 24 Operation Uniform of Laws Provi Austin, See 994 F.2d at 297. sion}. Here, Respondents and the ami- support 1139 To challenge, a facial Peti cus curiae assert that requiring that initia tioners must establish that the challenged tives have geographic broad support ensures statute is invalid under any set of cireum- that state-wide ballot initiatives are not con Herrera, stances. See State v. 1999 UT 64 at solely by trolled highly populated areas with ¶ 2,4 n. 993 P.2d 854. "Even if a court finds narrowly focused local interests. To address legislation certain unwise, unreasonable or concern, has that alone does not mean it authority has supporters to canvass the breadth of the invalidate Herrera, it." State v. 895 P.2d seeking support multiple counties. (Utah 20A-7-201(2)(a)(@). See Utah § Code Ann. It is within range legitimate govern It is well state, settled in this as else- goals ment to ensure that placed where, initiatives the courts will not declare on a ballot have been agreed reviewed and statute unconstitutional clearly unless it by citizens from a range broad geographic manifestly provision violates some regions. generally Carter, the Constitution of the state.... Every Bullock v. U.S. 31 L.Ed.2d 92 presumption indulged must be in favor of (addressing filing requirements). fee geo A the constitutionality act, of an every graphic component distribution is reasonably reasonable doubt resolved favor of its 7; 11. XI, See Ark. Const. amend. Fla. Const. art. majority 12. While the delves into a discussion of 3;§ 48, Prov., Mass. Const. Amend. art. Gen. signature the statutes' provision, removal this 2; Miss. § Const. Ann. pt. 15, art. 273; Mo. challenged. is not In provision fact, in their § Const. art. 3, 50; Mont. § Const. art. III, 4; brief, supplemental specifically Petitioners re- § Neb. Const. art. 3, 2, § Nev. Const. 19, art. 2; quest that this court not address this issue and § Ohio Const. II, 1a; art. Const. 3, art. Wyo. is, likelihood, concede that it in all constitutional. § (2000); 52; see § also Alaska Stat. 15.45.140 Brief, Supplemental See Petitioners' at 22. (West 2001); Fla. § Stat. Ann. 15.21 Idaho Code (Michie 2001). § 34-1805 1110 its of because expression thority restrict interpretation any by fair If validity .... matter, or its ideas, subject its message, its upheld, can be legislation the the statute of Chicago v. Mos Dep't Police it, See content. to sustain court duty of of the it is 2290, 33 92, 95, S.Ct. 92 ley, as in- the act may view judges though even (1988)15 constitutional The 212 L.Ed.2d unwise; not within it is or opportune any public prevents speech question of free judiciary to guarantee the of province the role assuming guardianship authority from Legisla- of the motives the or wisdom the the regulating through public mind the of of a statute. enactment in the ture National Riley v. speech. See press and 2n. Matheson, 237 P.2d 607 v.

Baker N.C., 487 U.S. Blind Fed'n Corp., Packer 1979) v. (Utah (quoting State 2674-75, 669 L.Ed.2d 101 (cita 508-09, P. 77 Utah protec core, speech free (1988). At its omitted)). tions even government, that tion establishes "(alll previously that note I also T140 motives, substitute cannot purest with highly including the rights, constitutional appropriate most judgment as its been] speech, [have free right of protected to both available communication method v. Bott regulation." subject reasonable It also for id. See and listeners. speakers 1996).13 (Utah 732, 743 DeLand, P.2d free directing the government bids inde- offering no Petitioners, while free anticipated debate and robust free their analysis for or support pendent id. provision. See speech Constitution, Utah under claim speech { Arti- that to believe no reason I see under afforded protections argue that than protection I, less provides § 15 cle than are broader I, §§ 1 and Article that presumption Amendment First Amend- First by the afforded protections know best government, "speakers, not Constitution. States the United ment say say how they want what both geo- continue Therefore, Petitioners Id. it." violates distribution graphic the Utah Con- under speech free their requiring argue that Petitioners legislate ability to stitution, that or sup- geographic to demonstrate supporters a fundamen- process is initiative through the placed it can be initiative before for an port worthy of right tal imposed a severe ballot, has the State on the protection. heightened rights of Utah speech free restriction spon- voters, as chilled as well Speech Freedom A. sorg' expression. political right I, § 15 of Article part, pertinent T 142 20A-7-201(2)(a)@1)states: §Ann. Code "No law states Constitution the Utah sub- seeking to have an person A restrain abridge or passed to shall be approval for people of the mitted to a vote 14 Free press." speech or freedom rejection obtain: shall interpreted has been protection speech au has no government guarantee +93 I, Toronto, includes § Utah Constitution 1 of the Article Cope 14. upon majority relies The

13. thoughts freely (1958), support phrase communicate as "to P.2d Utah 2d directly legis- ability people's has con however, claim court, its This opinions." I, fundamen- provides is a through § Article previously late cluded against "defend I, must court § 1 of the tal description than Article broader See inviolate." "maintain encroachment" freely. West communicate people's misapplies case law majority supra 127. 999, 1015 P.2d Newspapers, 872 v. Thomson Utah Constitu- language plain as the well Therefore, analysis my (Utah I focus may reason- which states tion § 15. I, Article process. See Utah ably regulate the initiative reading of § Furthermore, my 1. VI, Art. Const. authority, we we cite federal extent "[To the majority's claim. support Cope does not persuasive to only consider we because do so encourage construction liberal Cope does While I, sec- article independent construction our only ad- case itself process, initiative West, Constitution." the Utah ... 15 of tion[] keeping off initiatives inequities of dresses the at 1018. 872 P.2d deficiencies." "technical the ballot for (@) counties, from each of at least 20 graphic requirement distribution acts as a legal signatures equal to chilling force on the 10% the total and robust public free of all county votes cast in that for all protected debate I, § Article 15. governor candidates for regu- at the last general lar election at governor which a B. Operation Laws Uniform was elected. question then is provision Next, whether this Petitioners' claim that geo all implicates either Petitioners' or graphic the voters' requirements distribution are viola- right speech. to free I, § tive of Article 24 of the Utah Constitu tion, equal core, protection provision, 145 At its requires statute ini- which requires that "All supporters general tiative laws of a present to to the lieutenant nature shall have governor operation." uniform a sufficient signatures, number of This court previously has from the counties, determined number of that before placed can a statute on the ballot. See equal protection meets "Iwlhether depends standards id. With the first mind, upon this threshold instance initiative objectives supporters statute and are free approach any whether the citizen classifications any, all, [by within established ideally statute] the 29 Utah provide a reasonable basis freely counties and for promoting discuss the initiative or any subject objectives." Malan, other those without restriction from P.2d at 670. "For a 20¢A-7-201(2)(a)(#i). law to be section constitutional under Moreover, Article I, § it enough is not voters equally are it be free to uniform on opinions voice their its face. What is concerning proposed critical is initiative, opera or concern- tion of the law be uniform." Lee v. Gaufin, ing any subject, other with no restriction (Utah P.2d 20A-7-201(2)(a)@i). from section This court Petitioners interpreted has this would to mean "persons have us determine any geograph- similarly situated should be treated similarly, ic distinction population that is not equivalent persons different cireumstances would unconstitutionally burden the free should not be speech if necessary treated as their cireum- right. stances Malan, were the same." 693 P.2d at 1 146 public debate, Free and robust how- Thus, validity determine the of Peti ever, can equated neither be with successful- claim, tioners' necessary to decided ly communicating ideas, one's nor with suc- whether geographic require distribution cessfully placing an ballot, initiative on the or operates ment uniformly and within constitu with the proposal being adopted as law. parameters tional on all similarly situated Free public and robust merely debate is persons. satisfy To requirement, any means to achieve success or failure in the geographic distribution adopted process, simply the result of State, (1) at a minimum: apply "must successfully placing an initiative on the bal- equally persons to all within a class" and lot. Although successfully placing an initia- any statutory created, any classifications tive on the potentially ballot stage sets the resulting different given treatment public debate, there speech is no free classes, "must be based on differences that place an initiative on the ballot. The have a tendency reasonable to further speech right free simply protects Petitioners objectives of the statute." Id. at 670. engage in discourse that is essential attempt their place the measure on the T 149 persons "When similarly situat ballot, any as well as further discussion that ed, it is single unconstitutional out one may occur in attempt person group persons or among have the measure adopted. larger class on the justifi basis of a tenuous only 11147 Not am I agree unable to with cation that has little or no merit." Id. at 671 Petitioners (footnote geographic omitted). distribution Thus, presented when implicates Petitioners', either or with a operation uniform of the laws chal general populace's, right speech, to free lenge I that does not important involve an am also unable to geo- conclude that critical State right, the court 1112 dimension. constitutional claim whether: to determine statute the

examines 1989). (Utah Bell, 398 785 P.2d is by the statute created (1) the classification objectives are (2) legislative reasonable, the {151 the State's argue that Petitioners rela (8) is a reasonable there and legitimate, requirement should distribution geographic Ryan v. Gold See two. the tionship between scrutiny, as estab heightened subject to (Utah 423, 426 Inc., P.2d Servs., 903 Cross a only involves Lee, not because lished has determined court 1995). Previously, the " 'clas creates it also right, but fundamental constitution is statutory classification "a that or sus impermissible considered sifications relationship to a rational no it has unless al " Peterson, 42 2002 UT pect in the abstract. stated, or, if not purpose stated legislatively P.2d ¶ 903 Ryan, (quoting P.3d 941 48 at pur legislative reasonably conceivable any to geo that assert Petitioners at Moreover, so Lee, at 580. P.2d 867 pose." requirement establishes graphic distribution no invidious creates the classification long as minority group-urban insular and a discrete having a as discrimination,16 construed is and however, no Petitioners, present dwellers. legitimate State relationship to the rational nor claim for this support constitutional state "presume to is court purpose, authority, any to discover I been able have further intended to was classification that proposition support jurisdiction, to Id. purpose." legislative recognized as have been dwellers that urban conclude However, a court should minority group. and insular a discrete Cf. a criti involve classifications a statute's that Bowers, at 689. N. W.2d suspect a right or cal state 20A-7-2010@2)(a)@),in its Section employ a must classification, court then the distinguish between form, not does present id. at See review. heightened standard only requires It dwellers. and urban rural USA, UT 581; v. Coca-Cola Peterson signatures supporters obtain initiative that those circum ¶ 23, Under P.3d 941. counties, to clearly balanced variety of from a does that a statute stances, may find a court The stat- differences. population (1) account "only is if it the Constitution violate not support- mandate that not ute does speculative (2) a reasonable, than has more counties certain from signatures obtain ers objective legislative tendency further sig- obtain supporters require does it nor substantially fur fact, actually and and, in rural residents. only urban or natures is and purpose, legislative a valid thers legitimate further necessary to reasonably time, de- {153 unwilling, at this I am 583; Lee, ac P.2d goal." rural coun- or urban of either residents clare (Stewart, J., P.2d at Ryan, cord or sus- impermissible constituting an as ties practical But, fact that concurring). pect classification. persons "subjects some of a statute effect geo- argue that next Petitioners oppressive more is which disparate treatment embodied requirement distribution graphic not create does must bear" than others conclusion, that opposite just supports 49, 54, majority case paragraphs significant product of requirement was the geographic statement the bold makes Legislature satis part invidiously discrimi discussion distribution today been deemed have Dictionary fy defines "invidi certain concerns natory. Law Black's majority. discrimi "arbitrary, Invidious irrational as insufficient discrimination" ous fundamentally purpose." thing legitimate aas reasonably to a the same related is not nation ed.1990) (cit (6th Rather, unrea Dictionary, it is an point of view. Law Black's different a added). omitted) (emphasis conse an intolerable quotation with distinction tion soned to whether may question as abe quence. there While reasonably related distribution today's adoption of the Finally, urban/rural purpose, there is noth legitimate governmental may widespread and far-reach- have distinction require ing support the conclusion I fear today's beyond decision. ing well effects arbitrary case. in this either irrational ment is legislation makes refer- benign future, ignore seem would Such a conclusion and rural urban between to distinctions ence geographic distri have that also states included concerns differing needs their residents pro requirement within bution invidiously discrimi- subject Moreover, to attack will be note 19. dissent cesses. infra during this proffered évidence amount of natory. small

1113 20A-7-201(2)(a)(ii) within section impacts the a free citizen in society." a free Utah Pub. right fundamental of Utah citizens to seek Employees' Ass'n, 610P.2d at 1273. changes through to the law power "The to legislation initiate was process. Petitioners base this claim on Arti- reserved to people the of the State and to the 1(2) VI, § cle of the Utah Constitution. people any legal subdivision of the State catalog The of fundamental interests is by an amendment to the Constitution of Utah relatively date, small to and includes such in 1900." Dewey v. Doxey-Layton Realty things right vote, as procreatel[,] the to to Co., (1954). Utah 2d 277 P.2d and to travel right interstate.... A or VI, 1(2) Article sets forth that: section? interest does not invoke strict height- [or Legislative The power of the State shall be serutiny just ened] because it important is vested: aggrieved to the party. Only those implicit

that form an part of the life of a free society citizen a free can be called people the Utah, the State of as fundamental. hereinafter stated: State, Utah Pub. Employees' Ass'n v. legal voters or such part fractional (Utah P.2d When "inter thereof, of the State of Utah may be preting constitution, the state [courts] look provided law, by under such conditions and primarily language of the constitution in such manner and within such time as Therefore, itself .... starting point [the] may provided law, by may any initiate interpreting a provision constitutional is the legislation desired and cause the same to language textual itself. ... [A court] need not be submitted to a vote of people for inquire beyond plain meaning of the [con approval rejection or .... provision] stitutional [it] unless find[s] am VI, Utah biguous." § Const. art. 1.17 County Grand v. Emery County, 57, ¶ 29, 2002 UT 450 Utah Adv. Rep. 21 1156 This court recently has commented (citations quotations omitted); and see also provision on this stating Ohms, Salt City Lake v. 881 P.2d The Constitution has legisla- vested in the " (Utah 1994) (stating that 'The rule which ture power prescribe conditions, to applied laws, should be is that especially and mammer, and the time any desired foundational Constitution, laws such as our legislation may be submitted to a vote of interpreted should be applied according people approval rejection. plain import language as it It is axiomatic that laws enacted would be by persons understood ordinary legislature presumed are to be constitu- intelligence ") (citations experience' tional and legislature is accorded omitted)). Thus, properly perform wide latitude in complying with constitu- analysis, important it is to first determine tional directives such as the one contained ability whether pursue changes VI, in article section 1. law, plain under language of Article VI, 1(2), § prior interpretations Hunt, (Utah Owens v. 882 P.2d provision, an "implicitpart is of the 1994) life of added).18 (emphasis This court has majority 17. The provisions cites to ing authority "provide with the support from other states to its conclusion that by law for the Secretary manner in which the ability attempt change through the initia- petition shall determine whether a contains process is Having fundamental. reviewed signatures"). number of Additional- provisions, the cited they I would conclude that ly, majority relies on constitutions other sufficiently inapplicable. different as to be than our own to establish fundamental na- Utah, Unlike majority states cited have right ture of unpersuasive. a Utah is expressly legislatures' ability limited the to re- people's strict the body within the 18. This court has addressed See, the initiative and eg., of their constitutions. Colo. Const. art. V, 1(10) (2001) referendum § several (establishing other cases. See that the initiative self-executing is under the Colorado Tobias v. South consti- Jordan Recorder, 972 P.2d City (Utah 1998); tution); (2001) Awareness Now v. Ore. Citizen's § Const. art. (setting IV, out, constitution, body within the per- (Utah 1994); Marakis, Bigler P.2d 1117 centages signatures required Vernon, only provid- (Utah 1993); 858 P.2d 1390 Wilson v. (1) any 201(2)(a)i) whether: determine plain beyond the limitations recognized also rea by the statute voter's abili created A classification Constitution. language objectives are le (2) legislative sonable, proper restricted laws initiate ty to rela a reasonable there is gitimate, and specifi away areas areas Ryan, 903 two. See the body. tionship between existing legislative an in cally vested mind, keep in should] 807; "[We also at 426. see P.2d at P.2d 277 Dewey, See function court's] however, {the it not 265, P.2d that is 130 Cook, Utah 102 v. Anderson desirability, or rational the merits, even (concluding that (1942) the 278, 285 to defend Rather, is sub court's] to vote [the action. constitutionally granted ity legislative of of the reasonableness regulation).19 to examine is ject to reasonable function objec legislative light of in classification the language of plain the that I conclude T 157 Id. tives." unambiguous. 1(2) and VI, clear § is Article change Utah attempt then, to to "deter ability to is question, the first While € 159 The issue," is reserved process initiative is through the classification what precisely law mine ability is State, this is of the legal classification voters identified to the that whether and 1(2) VI, § es- self-limiting. Article challenge the expressly Petitioners Id. reasonable. authority to the legislation that in the authority to enact tablishes State's conditions, mnunibers, the to demon reasonably supporters limit initiative require would citizens the which manner, geographically within time based non-population and strate this ability. Because initiative an may support before exercise voter distributed Constitution, the placement on ballot.20 the for qualified language within limiting can be ability to the acknowledge that I and while its does not statutory requirement This process initiative through the must change The court pursue classifications. create face ability not is the underlying that I conclude intent important, the is both examine therefore and, the Constitution within Peti impact. unfettered the statute's the statute level of heightened subject therefore, to not concentration that due assert tioners counties of the serutiny. in four population of Utah's front, geo the up the Wasatch make the lower apply I would Accordingly, 1 158 vests distribution graphic 20A-/- section to review standard 475, Bench, 2d 313 P.2d Utah 6 v. Shriver 1982); (Utah Provo City Manning, P.2d 251 657 we (1957). Shriver, Furthermore, in (Utah 2 476 n. 367 P.2d 2d 12 Utah Anderson, v. govern power of fundamental "the stated that 113 Utah 1961); Comm'n, v. Trade Revne policy the law people, and the the is in ment 1948); Rasmussen, (Utah v. Allan P.2d 563 being to reserved regard generally is to 1941); (Utah White v. P.2d 287 33, 117 Utah clearly may declared been except have 1936). as it them (Utah P.2d Welling, 335, 57 89 Utah (emphasis 313 P.2d Id. at otherwise." added). Shriver, but people's abili- in left unstated the What was majority concludes 19. Constitution language of our both the clear in "coequal, coextensive legislation is ty to initiate ability change the Owens, legisla- while the is that of the power the with concurrent" statement, process is reserved majority initiative law via the making this ture. In "pre power to by Legislature joined no has people, concurring opinion, on a relies manner, conditions, number,] court, in Utah Power [the found scribe other member process. surrounding the initiative 74 P.2d City, the time" Light Provo & v. J., concurring). (Larson, I am un- at 661. Owens, 882 P.2d reason, by opin- unpersuaded concurring amI by prose of the For this persuaded change ability law via argument that the analysis am convinced instead fon, and by might is a more be obliterated process Owens court in adopted the entire Owens, regulation we lim- Any In regulation. the law. such appropriate statement excessive change ability language Utah Constitu- people's plain determined ited regulation our as found in reasonable law, the initiative our case process, tion, law via subject to reasonable and time. Constitution, manner, is an ability condition, Hunt, legislature. Owens set by limitations (Utah enacted, 20A-7- P.2d section presently 20. As ob- supporters to 201(2)(a)(ii) requires initiative supports Moreover, that Shriver I do not think counties. Utah's 29 20 of signatures from ability tain majority's conclusion geo- challenge However, because Petitioners ais change law via face, I do on its graphic statute Instead, distribution Shriver I read right. fundamental present requirement. legislature's VI, address § language Article merely restate populated Utah's less counties pow with veto gubernatorial election, the distribution any proposed er over initiative.21 Utah, these voters or the may balance that may Assuming arguendo not be that Petitioners' demonstrated through these contention is correct figures. and that geo- that a Petitioners presented have us with graphic distribution results inadequate support argument higher populated voters being counties requiring a certain voters, number of repre differently treated than voters in popu- less senting a relatively wide geographic distribu counties, lated I do not see this as fatal. tion, sign petition before the fact, I believe that the population variance in placed initiative can be on the ballot is unreas densities supports reasonable onable.22 conclusion that residing voters popu- less lated counties are similarly not situated to T Therefore, 162 I find nothing inherently the voters from heavily more populated coun- irrational, Peterson, ¶ see 2002 UT 42 at Bowers, ties. See Thus, 638 N.W.2d at 690. 48 P.3d about the statutory geographic "persons because similarly situated should be distribution scheme as a means to achieve similarly, treated persons in different widespread discussion support ap when cirenmstances should not be treated if plied to the process. initiative See Halgren their same," Malan, circumstances were the v. Welling, 91 Utah 63 P.2d 559 693 P.2d at I conclude that geo- (1936) (analyzing Utah's statutory scheme graphic requirement distribution is not nee- surrounding the process, initiative including essarily an unreasonable or severe burden. existing then geographic pro distribution Moreover, 1161 I am not convinced that vision, comment); without Miller, Zautra v. requirement distribution creates the im (D.Utah 348 F.Supp. 1972)(conclud- 850 pact allege. Petitioners geographic The dis ing that scheme, Utah's requiring a candi requirement tribution upon is based a mathe date demonstrate support over geographic matical formula. This formula is used to qualify distribution to for placement on the determine first the number of voters who ballot, reasonable); was Bowers, 638 N.W.2d cast a ballot in gubernatorial the last election at 689-90 (determining that the inherent dif every county, and then to determine ferences between larger smaller and counties signatures number of satisfy that would supported a conclusion that the groups were requirement the 10% within each county. similarly not situated); Massachusetts Pub. Sidestepping information, this needed Peti Interest Group, Research tioners utilize N.E.2d at population absolute numbers to argument. (concluding make their requiring that support Petitioners fail initiative present any information ers to concerning support show the num over geographic distri ber of voters who cast ballots in reasonable). the last bution was majority 21. The geographic asserts that the Lance, 1, 6, dis- issue." Gordon v. requirement tribution endows the rural counties (1971). 1889, 1892, 29 L.Ed.2d 273 with an "effective veto" over initiatives that en- joy support majority from the of Utah voters. 22. Petitioners majority argue and the true, may This indeed be equally but an effective county distribution creates a distinc- power veto is held majority what has However, tion between rural and urban voters. subject declared to be those to invidious discrim- I pressed am hard accept argument an ination-the four urban counties. These coun- require declaring would George (approximate St. ties, apparently comprising popula- of Utah's 3/4 50,000) population Logan (approximate popu- tion, effectively can veto rural 42,000) nature, lation to be rural in rather than through garner an initiative urban, purely based on their existence within support from prior 10% of the qualify- voters By token, certain counties. the same I would ing Moreover, for the ballot. the concern re- difficulty have a similar characterizing Magna or garding majoritarian rule is somewhat mis- Fork, Spanish great which both share a number placed. As the Supreme United States Court has of rural characteristics, but are located within said, "Certainly any departure majority from the identify what Petitioners as urban counties. Fi- gives disproportionate rule power to the nally, Moab, minori- City both Park very each with ty. nothing But there is language in the year-round populations, small defy characteriza- Constitution, history, our or our cases that re- tion reasonably because both could be consid- quire majority that a always prevail every ered urban and rural in character. over a to be demonstrated support for ment answered to be question [163 second motivated could distribution geographic in re purpose legislature's whether of mat- appearance avoid by a desire to demonstrate supporters quiring statewide interest local purely ters legit initiatives for support statewide " support- if initiative legisla might occur 'sustain ballot should court This imate. 100% of garner permitted were ers reasonably conceive can [it] if action locality. Final- from one signatures classifications justify would which facts " to avoid may have intended Peterson, UT ly, the legislation. by the made clutter, where of ballot possibility Ryan, 903 (quoting ¶ 25, 48 P.3d at initiatives among competing is lost omitted)). Thus, issue (citations at P.2d " have All discussion. not a focus 'purposes therefore limited court is in other goals legitimate recognized as been held have been plainly shown can be " at locales. P.2d Ryan, legislators." or all some Shield Blue& Cross Blue (quoting acknowledging {165 In addition 1989)). Here, (Utah State, P.2d purposes, legislative possible range of broad Peterson, has court however, like in much im first is an issue noting that purpose, legitimate impute a need to no outside to look possible it is pression, possible of several least one legiti establishing the for assistance state examining the from gleaned can be purposes identified, legislative possible macy of these the statute's surrounded that debate analysis end, I believe To this purposes. time, Representative At that amendment. is 92 S.Ct. Bullock, 405 U.S. of stated Garn Bullock, States the United persuasive. house stated to this Supreme Court related issues two There are will this bill that first is 304. bill properly understandably and the State go to that initiatives citizen's [that] assure clogging of its election prevent the to seeks issues truly statewide are the ballot confusion, as- machinery, voter avoid is- fundamental really one that of a choice is the the winner that sure on initiatives to have going If we're sues. strong plurality, of at least a majority, or they are that make sure let's the ballot and bur- expense voting, without those passes, law If this issues.... statewide Although have we runoff elections. of den 67,188 signatures. to need going you're still candi- number of gauging the way no increasing the we're is that The difference in Texas primaries might enter dates who we make doing that by ... so distribution by unimpeded were ballot if access to the go on the ballot that initiatives sure here, we question in large filing fees initiatives. truly are statewide objec- legitimate respect are bound avoiding overcrowded in Legis- tives of the the Utah General Session 52nd interest, Moreover, has a State Transcription of 17, 1998); ballots. (February lature its integrity of duty, protect if not a Debate, Bill 304. House Floor or fraud- frivolous processes political num- a to discern possible also € 164 It is candidacies. ulent may purposes legitimate of other ber (footnote at 857 92 S.Ct. at support of statement this underlie legislature omitted). I conclude require- distribution geographic a adoption of geographic distri establish may legitimately a desire among these Chief ment. application requirements bution participation level a broader facilitate debate, encourage wider process to importance statewide discussing issues overcrowding, or ensure reduce ballot with a supporters provide solely on issues not focused convey initiatives they can from which platform broader localinterest.23 Additionally, require- message. Court, none of majority concluded has geographic distribu- existence of Despite the legiti- appellees are by proffered purposes reasons for similar enacted requirements tion conclusion, Then, drawing after states, acceptance mate. despite the twelve other "ille- that these determine majority proceeds to Supreme States United such reasons justifications Finally, analysis € 166 as for the turns to a deter imposed burden mination of whether the has rule," cho its taking into consideration "the sen a reasonable objec means to achieve its extent to which those interests make it Peterson, tive. See ¶ 27, 2002 UT 42 at necessary to burden plaintiff's rights." P.3d 941. I would instituting conclude that Id. (citations 112 S.Ct. at 2063 omit geographic distribution within ted). The Court then further refined the is not an unreasonable standard, adopting sliding apply scale to choice to achieve one or more of the afore state election laws and instructing courts to possible mentioned legislative purposes.24 " examine whether a statute has been 'nar may possible While it imagine alterna rowly drawn to advance a state options interest of that would have a different im " compelling importance' only regula pact process, is not place this court's if " " tion is determined to create merits, 'severe' 'to defend the desirability, ra " tionality legislative restriction{ ]." Id. (quoting Reed, action.' (quoting Id. Norman v. 279, 289, U.S. 426). Ryan, S.Ct. 903 P.2d at It is sufficient that (1992)). the geographic distribution L.Ed.2d 711 However, is a if the regula tion "only creates 'reasonable, fairly reasonable debatable nondiscrimina method to further conceivable purposes. tory ... restrictions' 'the important State's regulatory interests are generally sufficient [167 Finally, I accept were Petitioners' justify' the restrictions." Id. (quoting challenge implicating fundamental Anderson, U.S. at constitution, under the state my conclusion change. would not parties As the Petitioners) acknowl Here, T 168 contrary to asser- edge, the standard articulated Moore has tion, there is inadequate support for the evolved over time into a ap more realistic conclusion geographic distribution proach. Burdick, In the United States Su requirement always must create a severe re- preme Court determined subject that "to ev striction people's ability legislate to ery voting regulation to strict serutiny and to through process. In the last require regulation that the narrowly be tai general election, supporters initiative quali- lored to advance a compelling state interest separate fied two initiatives for inclusion on . would tie the hands of seeking States ballot, the each of ultimately which ap- was assure that operated elections are equitably proved by the unable, voters. I am there- efficiently." Burdick, and 433, 504 U.S. at fore, to discern impact the severe that the Thus, S.Ct. at 2063. the Court ex geographic distribution requirement may plained, when challenge a to a State election upon have people's the ability to seek considered, law is a court is directed to change through the process. initiative Ac- weigh "the character magnitude of the cordingly, whether under Burdick or Utab's injury asserted the ... that the equal protection Constitutional analy- " plaintiff seeks to against sis, vindicate" "the I conclude that 'the important State's precise put interests regulatory interests,!" by forward the State (quoting id. gitimate purposes" actually are not important substan- process so they that have consti- tially by geographic furthered distribution requirement. tutionalized See Arkansas requirement. unpersuaded by I am analysis Const. amend. 7; Fla. § Const. art. XL, 3; Mass. majority, of the and in fact believe it ill-advised Const. Amend. art. 48, Gen. Prov., 2; Miss. pt. legislative determine purpose whether the is Const. § Ann. art. 15, 273; Mo. Const. art. actually substantially by geo- furthered 50; III, 4; § Mont. § Const. art. Neb. Const. graphic requirement distribution absent a devel- § art. 2; § Nev. Const. art. 2; Ohio Const. oped factual record. § art. II, 1a; § Const. art. Wyo. 52; see also (2000); § Alaska Stat. 15.45.140 Fla. Stat. Ann. It is of no small moment that (West 2001); of the 23 § states 15.21 § Idaho Code 34-1805 (Michie that have 2001). created a process, citizens initiative It illogical would seem to declare thirteen of them have geographic instituted a geographic distribution unrea requirement. distribution importantly, More sonable in the face strong of such evidence of the among these thirteen, importance central ten states have of such a limitation to so concluded geographic distribution many jurisdictions. is other state the various 1564), struck between balance 788, 103 S.Ct. Anderson, 460 U.S. properly it is that interests, believe I do not requirement. justify the are sufficient severable. III. SEVERABILITY CONCLUSION the conclu disagree T{169 with Finally, I through ability legislate re 1171 A voter's distribution geographic that

sion body a state- uniquely is severable is quirement itself, not, in and of does is that created portion of a statute Whether statute. right under fundamental upon determination depends implicate severable is a por It including the States. the United intent legislature's Constitution that, must adopted, Stewart if law unconstitutional. of state creature declared tion Fourteenth Comm'n, the First comport with 885 P.2d Pub. Serv. v. Utah Constitu- States of the United analysis is this Amendments (Utah Central geographic the State I conclude the remain whether tion. "determin[el need requirement. this plan satisfies alone, further sections, will distribution standing ing in an stated Id. As we purpose." legislate {172 people's The fundamentally case, test "[the earlier though impor- process, through the passed have legislature would whether language plain tant, self-limiting under part, objectionable without the statute VI, Article see- As constitution. state depen parts are so or not whether 1(2) forth: tion sets court should other upon each dent be shall of the State Legislative power The was the intention conclude vested: entirety." only in its effective statute Simmons, 116 Utah Trust Co. Union Utah, as the State people of In the (1949). de we Stewart P.2d stated: hereinafter lay in the best measure termined part fractional or such legal voters offending subsec determining whether may be thereof, as of Utah of the State ef- legal practical necessary "has no tion law, conditions under such provided statute. operation" upon the feet time such and within such manner and in Stewart, P.2d at 780. law, initiate may provided may be 20A-7- of section My examination same cause the legislation and any desired 201(2) geographic distribu- suggests that for people a vote of submitted be legal both requirement has tion rejection .... or approval Thus, subsection law. effect practical Thus, ability VI, § 1. art. Utah Const. un- the whole (2)(a)(ii) is not severable through the change pursue which under circumstance is no there less properly the sub- not unfettered and not constitu- requirement would survive such a serutiny. heightened ject of having stat- majority, challenge. tional analysis following the Accordingly, T173 "(ilt a less inconceivable is not ed Owens, weigh I would forth set previously burdensome, restrictive, or nondiscriminato- ability reason- for the initiative ensuring geographic broad limitations for ry mechanism so, then I would ableness, and, having done crafted," supra be could support statewide require- distribution geographic geo- hold that a thereby established have legislative exercise a reasonable ments are may survive distribution graphic legislature does long As prerogative. one cir- challenge in at least ability people's effectively foreclose not Thus, improper it would cumstance. process, through the could seek legislature change to find this Court regula- reasonable may create geographic distri- that a have determined not Thus, ability. intent exercise of for the integral to the tions bution geographic distri- of a adoption because subsection Because statute. underlying the I, Article not violate does oper- bution upon (2)(a)(i) practical effect has a Constitu- 24 of the Utah §§ statute, affects which ation tion, I would affirm the action of the Lieuten- deny

ant Governor and request Petitioners'

for writ. Judge

1 174 Judge DAVISconcurs in dissenting opinion.

THORNE's Having disqualified himself, Associ-

ate Chief Justice par- DURRANT does not herein,

ticipate and Justice WILKINS does herein; participate Appeals Court of

Judges JAMES Z. DAVISand WILLIAM A.

THORNE sat.

2002 UT 84 RODERICK, Plaintiff,

Suzanne

v. RICKS; Ray Zoll;

Nathan Douglas B. T.

Castleton; Publishing, Abaco a Utah liability company;

limited Abaco Instal

lers, liability a Utah company; limited I-X,

and John Does Defendants.

Douglas Castleton, T. Cross-claim Appellant,

Plaintiff Ray Zoll,

B. Cross-claim Defendant Appellee.

No. 20000452.

Supreme Court of Utah.

Aug.

Case Details

Case Name: Gallivan v. Walker

Court Name: Utah Supreme Court

Date Published: Aug 26, 2002

Citation: 54 P.3d 1069

Docket Number: 20020545

Court Abbreviation: Utah