342 P.3d 262 (Utah 2014), 20140828, Mawhinney v. City of Draper

Docket Nº:20140828
Citation:342 P.3d 262, 2014 UT 54
Opinion Judge:Parrish, Justice
Party Name:LANA MAWHINNEY, CHRISTINE MCCLORY, and JAMES WHITEHEAD, Petitioners, v. CITY OF DRAPER and the TRAVERSE RIDGE SPECIAL SERVICE DISTRICT, Respondents
Attorney:Lana Mawhinney, Christine McClory, and James Whitehead, Draper, Pro se, petitioners. Douglas J. Ahlstrom, Benjamin C. Rasmussen, Draper, for Draper City respondent. J. Craig Smith, Kathryn J. Steffey, Steven R. Schaefermeyer, Salt Lake City, for Traverse Ridge Special Services District respondent.
Judge Panel:JUSTICE PARRISH authored the opinion of the Court, in which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, JUSTICE LEE, and JUDGE VOROS joined. ASSOCIATE CHIEF JUSTICE NEHRING does not participate herein; COURT OF APPEALS JUDGE J. FREDERIC VOROS, JR. sat.
Case Date:November 25, 2014
Court:Supreme Court of Utah
 
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342 P.3d 262 (Utah 2014)

2014 UT 54

LANA MAWHINNEY, CHRISTINE MCCLORY, and JAMES WHITEHEAD, Petitioners,

v.

CITY OF DRAPER and the TRAVERSE RIDGE SPECIAL SERVICE DISTRICT, Respondents

No. 20140828

Supreme Court of Utah

November 25, 2014

Released for Publication February 10, 2015.

Page 263

Lana Mawhinney, Christine McClory, and James Whitehead, Draper, Pro se, petitioners.

Douglas J. Ahlstrom, Benjamin C. Rasmussen, Draper, for Draper City respondent.

J. Craig Smith, Kathryn J. Steffey, Steven R. Schaefermeyer, Salt Lake City, for Traverse Ridge Special Services District respondent.

JUSTICE PARRISH authored the opinion of the Court, in which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, JUSTICE LEE, and JUDGE VOROS joined. ASSOCIATE CHIEF JUSTICE NEHRING does not participate herein; COURT OF APPEALS JUDGE J. FREDERIC VOROS, JR. sat.

OPINION

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Parrish, Justice

INTRODUCTION

[¶1] On petition for writ of extraordinary relief, petitioners Lana Mawhinney, Christine McClory, and James Whitehead (collectively, Petitioners) ask us to order the City of Draper (City) to certify their petition for referendum. Specifically, they seek to refer Resolution No. TRSSD 14-02 (Resolution) to the voters of the Traverse Ridge Special Service District (District) in the November 2014 general election. The Resolution, enacted on June 24, 2014, levies a tax on the property within the District.

[¶2] The City refused to certify the petition, asserting that the tax levy was a nonreferable administrative action and that the subjurisdictional referendum statute, pursuant to which the petitioners sought the referendum, unconstitutionally limits the number of Draper City residents who are entitled to vote on the issue. We grant Petitioners' requested relief because the Resolution was improperly rejected by the City. The Resolution, which levies a tax, is properly referable to the voters because it is legislative in nature. And we are unpersuaded by the City's constitutional challenge to the subjurisdictional referendum statute.

BACKGROUND

[¶3] The City of Draper created the Traverse Ridge Special Service District in 1999 to provide additional services to property located within its boundaries. These consist of " transportation, including snow removal, street lighting services, repairing and maintaining roads, sweeping and disposal service." In 2001, by a vote of six to two, the voters of the District authorized the City to levy and collect taxes to fund the District's operations. They passed the following proposition:

Shall the City Council of Draper City be authorized to annually levy and collect taxes from the owners of property within the Traverse Ridge Special Service District according to the assessed valuation of such property based on a mill levy not exceeding 10 mills, for the purpose of providing transportation, including snow removal, street lighting services, repairing and maintaining roads, sweeping and disposal services and facilities within the boundaries of the Traverse Ridge Special Service District?

That same year, " the Board of Directors of the Traverse Ridge Special Service District" " passed and adopted" Resolution No. 01-02. That resolution " established" a " Certified Tax Rate" for the District.

[¶4] On June 24, 2014, the " City Council of Draper City, acting as the Board of Directors of the Traverse Ridge Special Service District," " passed and adopted" Resolution No. TRSSD 14-02, which " established" a 2014 " Equalized Property Tax Rate" for all property located in the District. Five residents collected verified voter signatures and asked the City to refer the Resolution to the voters of the District. Nevertheless, the City rejected the referendum petition, asserting that " referendums challenging actions taken by special service districts are not authorized by the Utah Constitution." Petitioners filed in this court a petition for writ of extraordinary relief, pursuant to Utah Code section 20A-7-607(4)(a), and a motion for emergency relief, pursuant to rule 23C of the Utah Rules of Appellate Procedure. We heard oral argument and issued an order granting the requested relief on September 17, 2014, noting that this opinion would follow. We have jurisdiction under Utah Code section 78A-3-102(2).

STANDARD OF REVIEW

[¶5] The Utah Constitution vests this court with " original jurisdiction to issue all

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extraordinary writs." 1 A petition for extraordinary writ is appropriate where petitioners possess " no other plain, speedy, or adequate remedy." 2 However, the decision to grant such a petition " lies within the sound discretion of this court." 3

[¶6] Petitioners' request for extraordinary relief turns on whether the City of Draper properly concluded that the Resolution was not referable to the voters. Our review is therefore " confined to discerning the proper interpretation of . . . the Utah Code" and the Utah Constitution.4 We undertake this review applying a standard of correctness, granting no deference to the City's legal conclusions.5

ANALYSIS

[¶7] Petitioners seek to refer Resolution No. TRSSD 14-02 to the voters of the Traverse Ridge Special Service District. Respondents, City of Draper and the Traverse Ridge Special Service District,6 object, arguing that the Resolution is not referable. We hold that the Resolution--which levies a tax--is legislative in nature and is therefore properly referable to the voters of the District.

[¶8] Our analysis proceeds in three parts: First, we reiterate our test for identifying legislative actions in the context of the people's legislative power. Second, we hold that levying a tax is legislative in nature. Finally, we address three additional arguments raised by the City in urging us to deny the petition.

I. THE PEOPLE'S LEGISLATIVE POWER

[¶9] Article VI, section 1 of the Utah Constitution vests " [t]he Legislative power of the State" in " the Legislature" and " the people." Because our government is one of " distinct departments," neither the Legislature nor the people, exercising legislative power through an initiative or referendum, may " exercise any functions appertaining to either of the" executive or judicial departments of government.7 In essence, the people's legislative power is constrained to that which is legislative in nature. As a result, executive and administrative actions are not referable.8

[¶10] Some referenda are easy to sustain as legislative in nature because they challenge the actions of a strictly legislative body. For example, in Mouty v. Sandy City Recorder, we held that a referendum on an ordinance properly enacted by a city council in a municipality with a council-mayor form of government is " necessarily legislative" because that form of government specifies that the city council may exercise only the legislative power of the municipality.9

[¶11] Some municipalities, however, employ a form of government with commingled powers.10 Unlike the council-mayor form of government at issue in Mouty, these forms of government vest both executive and legislative powers in one body.11 With municipal powers thus commingled, as is the case here

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for Draper City,12 we must identify an exercise of municipal power as legislative before the people may seek to overturn it through a referendum. And unfortunately, it is not always possible to make this identification through application of bright-line rules. In Carter v. Lehi City, we articulated a general framework for determining whether an initiative or referendum is properly identified...

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