450 F.3d 1082 (10th Cir. 2006), 02-4105, Initiative & Referendum Institute v. Walker

Docket Nº:02-4105, 02-4123.
Citation:450 F.3d 1082
Party Name:INITIATIVE AND REFERENDUM INSTITUTE; Humane Society of the United States; Fund for the Animals; David M. Jones, Utah State House Representative; Bart Grant; Lynette E. Brooks; Craig S. Axford; Connie Bullis; Dick Carter; Drew Chamberlain; Betty F. Christensen; High Uintas Preservation Council; Humane Society of Utah; Sean Kearney; Charles Christian
Case Date:May 17, 2006
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1082

450 F.3d 1082 (10th Cir. 2006)

INITIATIVE AND REFERENDUM INSTITUTE; Humane Society of the United States; Fund for the Animals; David M. Jones, Utah State House Representative; Bart Grant; Lynette E. Brooks; Craig S. Axford; Connie Bullis; Dick Carter; Drew Chamberlain; Betty F. Christensen; High Uintas Preservation Council; Humane Society of Utah; Sean Kearney; Charles Christian Larsen; Nancy Ellen Whitehead Lord; Michael T. Ridgway; Utah Environmental Congress; Richard Vanwagenen; Richard Warnick; Stacy Williams, Plaintiffs--Appellants/Cross-Appellees,


Olene S. WALKER, Lieutenant Governor of Utah; Mark Shurtleff, Attorney General of Utah, Defendants--Appellees/Cross-Appellants,


Utah Wildlife Federation; Utah Foundation for North American Wild Sheep; Sportsmen for Fish and Wildlife/Sportsmen for Habitat; Utah Farm Bureau Federation; Utah Bowman's Association; Representative Mike Styler; Professor Hal L. Black; Professor Terry Messmer; Ms. Cindy Labrum; Mr. Ken Jones; Mr. Karl Malone; Dr. Charles C. Edwards, Amici Curiae.

Nos. 02-4105, 02-4123.

United States Court of Appeals, Tenth Circuit.

May 17, 2006


Page 1083

[Copyrighted Material Omitted]

Page 1084

Lisa Watts Baskin (Robert R. Wallace with her on the briefs), of Plant, Wallace, Christensen & Kanell, Salt Lake City, Utah, for Plaintiffs-Appellants/Cross-Appellees.

Thom D. Roberts, Assistant Attorney General (Mark L. Shurtleff, Attorney General, with him on the briefs), Salt Lake City, Utah, for Defendants-Appellees/Cross-Appellants.

Richard G. Wilkins, J. Reuben Clark Law School, Brigham Young University, Provo, Utah, John D. Ray, Jennifer E. Decker, and Matthew B. Hutchinson of Fabian & Clendenin, Salt Lake City, Utah, filed an amici curiae brief for the Utah Wildlife Federation, et al., in Support of Defendants-Appellees/Cross-Appellants.


Page 1085

McCONNELL, Circuit Judge.

The Utah Constitution allows voters to initiate legislation "to be submitted to the people for adoption upon a majority vote of those voting on the legislation." Utah Const. art. VI, § 1(2)(a)(i)(A). Initiatives related to wildlife management, however, are subject to a special standard: "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." Id. art. VI, § 1(2)(a)(ii). The Plaintiffs, including six wildlife and animal advocacy groups, several state legislators and politicians, and more than a dozen individuals, bring a facial First Amendment challenge to this supermajority requirement. Their principal claim is that by raising the bar for wildlife initiatives, the provision imposes a "chilling effect" on the exercise of their First Amendment rights, and does so in a manner that is both impermissibly content-discriminatory and overbroad. The district court held that the Plaintiffs had standing to raise their challenge, but dismissed their First Amendment claim on the merits. While this case was on appeal, the Plaintiffs' position gained support from another Circuit. In Wirzburger v. Galvin, 412 F.3d 271, 279 (1st Cir.2005), the Court of Appeals for the First Circuit held that a state constitutional provision prohibiting ballot initiatives on a particular subject constitutes a restriction on speech subject to intermediate scrutiny.

We affirm the district court in both respects. We hold that some of the Plaintiffs have standing to challenge Utah's supermajority requirement for wildlife initiatives and that the case is ripe and otherwise justiciable. Respectfully disagreeing with the First Circuit, we hold that a constitutional provision imposing a supermajority requirement for enactment of initiatives on specific topics does not implicate the freedom of speech.

I. Facts and Procedural History

Since 1900, the Utah Constitution has vested the legislative power of the state not only in the state Senate and House of Representatives but in "the people of the State of Utah." Utah Const. art. VI, § 1(1)(b). The people exercise their legislative power as provided in Article VI, Section 1(2), which grants voters the authority to initiate legislation to be voted up or down by a majority of voters in a general election. See id. art. 6, § 1(2)(a)(i)(A). Utah was the second state in the Union to extend the power to initiate legislation to citizens. See thomas E. Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall 51 (1989). From 1960 to 1998, voters initiated fifteen ballot measures. Two of these won approval at the polls. See state of Utah Elections Office, Results of Utah Initiatives and Referendums, 1960-2000, at http://elections.utah.gov/ResultsofUtahInitiativesandReferendums.htm.

None of those initiatives dealt with wildlife management issues, but wildlife and animal rights advocates saw an opportunity to succeed at the ballot box where they had been stymied in the state legislature. In 1991, a group of citizens commissioned a public-opinion survey regarding cougar and bear hunting methods to determine whether a ballot initiative was likely to succeed. Meanwhile, they used the threat of a statewide wildlife initiative as a bargaining tool in negotiations with state officials. In several other Western states, national groups sponsored high-profile animal protection and wildlife initiatives, and believed that they could mount a similar campaign in Utah. According to documents submitted by the Plaintiffs, by 1996 a group called the Cougar Coalition had announced

Page 1086

its mission to "advance the cause of predator protection . . . by taking our cause directly to the citizens of Utah by means of an initiative." App. 62. In January 1997, the Humane Society of the United States commenced planning in Salt Lake City for a wildlife initiative in Utah.

In February 1998, two-thirds of the members of both houses of the Utah legislature passed resolutions endorsing an amendment to Article VI, Section 1 of the state constitution:

[L]egislation initiated to allow, limit, or prohibit the taking of wildlife or the season for or method of taking of wildlife shall be adopted upon approval of two-thirds of those voting.

Utah Const. art. VI, § 1(2)(a)(ii). The proposed amendment, dubbed "Proposition 5," was slated for a popular vote during the November 1998 general election. At a meeting of the Utah Constitutional Revision Commission in August 1998, several proponents explained the reasons for their support of Proposition 5. State Representative Michael Styler praised the performance of existing regional wildlife management councils and "expressed concern that certain groups from outside the state want to manage Utah wildlife practices through initiative petition." App. 55. Don Peay, representing a group called Utahns for Wildlife, put it more bluntly, calling Proposition 5 "an effort to preserve Utah's wildlife practices from East Coast Special Interest groups" who planned to press "the Washington DC agenda" through the initiative process. Id.

In the 1998 general election, 56% of voters approved Proposition 5, and the amendment went into effect on January 1, 1999. Since then, no group or individual has pursued a wildlife initiative in Utah.

The Plaintiffs filed this lawsuit on October 23, 2000, alleging that the supermajority requirement created by Proposition 5 impermissibly burdens the exercise of their First Amendment rights, violates the First Amendment on overbreadth grounds, and violates the Equal Protection Clause of the Fourteenth Amendment. They also alleged various violations of the Utah Constitution. The Defendants countered that the Plaintiffs lacked standing to bring their facial challenge, and that in any case the Plaintiffs' First Amendment claims failed as a matter of law.

The district court held that the Plaintiffs "clearly have standing to bring this suit." Initiative & Referendum Inst. v. Walker, 161 F.Supp.2d 1307, 1309 (D.Utah 2001). It concluded that the Plaintiffs had alleged an "injury in fact," noting that although the Plaintiffs had not participated in a ballot initiative drive since the passage of Proposition 5, they had "demonstrated through a number of affidavits that they have used the initiative process often in the past and are likely to in the future." Id. at 1310. A causal connection existed between the claimed injury and the challenged conduct, according to the district court, because "[i]f the Amendment is unconstitutional, then Plaintiffs' injury is directly traceable to the existence of the Amendment." Id. the district court also found the Plaintiffs' challenge ripe, holding that under the "relaxed" standards for ripeness in facial challenges under the First Amendment, they had alleged a present injury: a continuing chilling effect on their First Amendment rights, and "higher costs in getting an initiative passed" in the future. Id. at 1311-12. It also rejected the Defendants' argument that the case was not ripe for review because the amendment did not in fact have a chilling effect on the Plaintiffs' speech, noting that "it would be inappropriate to dismiss the case on ripeness grounds because one might find that the Free Speech claim is not meritorious." Id.

On the merits, however, the district court granted the Defendants' motion to

Page 1087

dismiss the Plaintiffs' facial First Amendment claims, concluding that the supermajority requirement did not amount to a "restriction" on speech at all. The rule "makes it more difficult to pass a wildlife initiative," the court...

To continue reading