Initiative and Referendum Institute v. Walker

• Citation: 161 F.Supp.2d 1307
• Decision Date: 11 September 2001
• Docket Number: No. 2:00CV00837C.,2:00CV00837C.
• Parties: INITIATIVE AND REFERENDUM INSTITUTE, et. al, Plaintiffs, v. Olene WALKER, et. al, Defendants.
• Court: U.S. District Court — District of Utah

Page 1307

161 F.Supp.2d 1307

INITIATIVE AND REFERENDUM INSTITUTE, et. al, Plaintiffs, v. Olene WALKER, et. al, Defendants.

No. 2:00CV00837C.

United States District Court, D. Utah, Central Division.

September 11, 2001.

Robert R. Wallace, Lisa J. Watts Baskin, Plant Wallace Christensen & Kanell, Salt Lake City, UT, for plaintiffs.

Jerrold S. Jensen, Utah Attorney General's Office, Salt Lake City, UT, Thomas D. Roberts, Utah Attorney General's Office, Salt Lake City, UT, for defendant.

John D. Ray, Jon C. Martinson, Fabian & Clendenin, Salt Lake City, UT, Richard G. Wilkins, Holme Roberts & Owen LLP, Salt Lake City, UT, for Utah Wildlife Federation, Utah Foundation for North American Wild Sheep, Sportsmen for Fish and Wildlife, Utah Farm Bureau Federation, Utah Bowman's Association, Mike Styler, Hal L. Black, Terry Messmer, Cindy Labrum, Ken Jones, Karl Malone, and Charles C. Edwards.

ORDER

CAMPBELL, District Judge.

In this matter Plaintiffs move the court to hold that a recent amendment to the Utah Constitution is facially unconstitutional under the United States Constitution and that it violates certain other provisions of the Constitution of State of Utah. Plaintiffs-who include the Initiative and Referendum Institute, the federal and state Humane Societies, various environmental groups, and Utah voters and politicians (collectively "Plaintiffs")-challenge the facial constitutionality of the following recent amendment to the Utah Constitution (the "Amendment"), noted in boldface type:

Article VI, Section 1 [Power vested in Senate, House and People]

The Legislative power of the State shall be vested:

1. In a Senate and House of Representative which shall be designated the Legislature of the State of Utah.

2. In the people of the State of Utah, as hereinafter stated:

The legal voters or such fractional part thereof, of the State of Utah as may be provided by law, under such conditions and in such manner and within such time as may be provided by law, may initiate any desired legislation and cause the same to be submitted to a vote of the people for approval or rejection, or may require any law passed by the Legislature (except those laws passed by a two-thirds vote of the members elected to each house of the Legislature) to be submitted to the voters of the State before such law shall take effect. Legislation initiated to allow, limit, or prohibit the taking of wildlife or the season for or method of taking wildlife shall be adopted upon approval of two-thirds of those voting.

Utah Const. Art. VI § 1. This Amendment passed as Proposition 5 and went into effect January 1, 1999.

Among other things, Plaintiffs' complaint contends: 1) that the Amendment abridges their First Amendment right to speech (and to petition the government); 2) that the language of the Amendment is overly broad; and 3) that it violates equal protection (both because it grants greater voting strength to those who want to pass initiatives on non-wildlife issues and because it singles out a named group-apparently those interested in taking wildlife or opposing the taking of wildlife). Plaintiffs also brings similar claims based on various provisions of the Utah Constitution. While it is somewhat unclear from Defendants' briefs, Defendant moves to dismiss based on two grounds: (1) that there are jurisdictional deficiencies in this matter, namely: a) that plaintiffs lack standing, and b) that the matter is not ripe; and (2) that Plaintiffs have failed to state a claim regarding their First Amendment challenge to the Amendment.

Analysis

A. Standing

Plaintiffs clearly have standing to bring this suit. The Tenth Circuit has adopted the standing requirements provided for in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992):

First, the Plaintiff must have suffered an `injury in fact'-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly ... traceable to the challenged action of the defendant, and not the result [of] the independent action of some third party not before the Court. Third, it must be likely, as opposed to speculative, that the injury will be redressed by a favorable decision.

Bear Lodge Multiple Use Ass'n v. Babbitt, 175 F.3d 814, 821 (10th Cir.1999).

Looking at the first Lujan element, that Plaintiffs must have suffered an injury in fact, Defendants contend that Plaintiffs lack standing because they have not participated in a initiative drive since the passage of the Amendment. Therefore, according to Defendants, Plaintiffs have not suffered an "injury in fact." However, Plaintiffs have demonstrated through a number of affidavits that they have used the initiative process often in the past and are likely to in the future. Lujan involved a challenge to the Secretary of the Interior's alleged failure to enforce an Endangered Species Act mandate that he confer with other agencies to ensure the Act's enforcement. See 504 U.S. at 562-63, 112 S.Ct. 2130. The Lujan plaintiffs wanted the Secretary to stop funding of an overseas project because it would have caused an impact on endangered species in another country. See id. at 562-64, 112 S.Ct. 2130. The Lujan Court found that plaintiffs lacked standing because they failed to demonstrate that they had or definitely would visit the area (Justice Scalia suggested that buying a ticket to go there would have been sufficient to give plaintiffs standing). See id. at 567 n. 3, 572-72, 112 S.Ct. 2130. In contrast to the Lujan Plaintiffs, Plaintiffs here have demonstrated that they have and will continue to use the initiative process burdened by the Amendment. Because they have used the process in initiative process in the past, Plaintiffs in this case have sufficiently demonstrated that they are within the class of people who are injured if it is found that the Amendment violates constitutional rights to speech and equal protection.

The second Lujan element-the necessity of a causal connection between the claimed injury and the conduct complained of-is also satisfied in this case. If the Amendment is unconstitutional, then Plaintiffs' injury is directly traceable to the existence of the Amendment. Finally, if the Amendment is found to violate Plaintiffs rights to Free Speech and Equal Protection, then the court action of nullifying the Amendment satisfies the final Lujan element of redressability. Having demonstrated that they have met these three Lujan requirements, Plaintiffs have standing to bring this suit.

B. Ripeness

In general:

the question of whether a claim is ripe for review bears on a court's subject matter jurisdiction under the case or controversy clause of Article III of the United States Constitution. The question of ripeness, like other challenges to a court's subject matter jurisdiction, is treated as a motion under Rule 12(b)(1).... It is the burden of the complainant to allege facts demonstrating the appropriateness of invoking judicial resolution of the dispute.... A Rule 12(b)(1) motion can challenge the substance of a complaint's jurisdictional allegations in spite of its formal sufficiency by relying on affidavits or any other evidence properly before the court. It then becomes necessary for the party opposing the motion to present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction.

New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir.1995) (internal quotations and citations omitted).

Defendants contend that the fact that there is no current or planned referendum shows that the case is not ripe for consideration. They further argue that Plaintiffs would only have a claim if they had an initiative on the ballot that failed because it received more than half and less then two thirds of the vote-thus failing under the terms of the Amendment. This argument confuses a facial for an as-applied challenge to the constitutionality of the Amendment. Plaintiffs have a ripe facial challenge because they do not need to wait until the law is actually applied to challenge its facial constitutionality. Part of the relief sought in this suit is declaratory in nature and the Tenth Circuit Court of Appeals has clearly held that a party whose interest could be affected by the questionable legality of an enacted law need not wait until the law is actually applied to them in order to challenge its legality. "[A] plaintiff may seek declaratory relief before actual harm occurs if she has a reasonable apprehension of that harm occurring." United States v. Colorado Supreme Court, 87 F.3d 1161, 1166 (10th Cir.1996) (holding that federal prosecutors need not await actual imposition of ethical rules to challenge rules' legality); see also ANR Pipeline v. Corporation Commission of Oklahoma, 860 F.2d 1571, 1578 (10th Cir.1988) ("Parties need not await ... the imposition of ... an unconstitutional enactment in order to assert their constitutional claim for an injunction in federal court. Once the gun has been cocked and aimed and the finger is on the trigger, it is not necessary to wait until the bullet strikes to invoke the Declaratory Judgment Act"). Here, regardless of ultimate success on the merits of their First Amendment claim, Plaintiffs apprehension regarding the effect of the Amendment on their ability to use the initiative and referendum process is "reasonable." Colorado Supreme Court, 87 F.3d at 1166.

As a general rule, determinations of ripeness are guided by a two-factor test, "`requiring us to evaluate both the fitness of the issue for judicial resolution and the hardship to the parties of withholding judicial consideration.'" Sierra Club v. Yeutter, 911 F.2d 1405, 1415 (10th Cir.1990) (quoting Abbott...