Burr v. City of Orem, 20120982.
| Decision Date | 30 August 2013 |
| Docket Number | No. 20120982.,20120982. |
| Citation | 311 P.3d 1035 |
| Parties | Wayne BURR; Elaine Andelin; and Peter Anderson, Petitioners, v. CITY OF OREM, Respondent. |
| Court | Utah Supreme Court |
OPINION TEXT STARTS HERE
Wayne Burr, Elaine Andelin, Peter L. Anderson, Orem, for petitioners.
Greg W. Stephens, Heather J. Schriever, Orem, for respondent.
INTRODUCTION
¶ 1 Via a referendum petition, Petitioners obtained sufficient signatures to challenge a proposed tax increase approved by the Orem City Council in Resolution 2012–0014. The measure will now go before the voters of Orem City in the November 2013 election. Petitioners challenge the Orem City Attorney's proposed language that will appear as the referendum ballot title. We disagree with Petitioners' objections to the wording of the ballot title, having found that the drafter did not abuse his discretion.
¶ 2 On May 8, 2012, the Orem City Council received the tentative budget for fiscal year 2012–13. At that same meeting, the City Manager “recommended [that] the City Council consider a property tax increase for operations” in order to meet the revenue necessary for the proposed budget. According to the City Council meeting minutes, the proposed budget “was formulated with [national and local economies] in mind [and] it recognizes ... the continued pressure of the UTOPIA debt guarantee obligation combined with the rising costs of operational expenditures.”
¶ 3 UTOPIA is a city-owned telecommunications network that is building a wholesale fiber-optic network that offers users access to high-speed video, data, and phone services. Eleven Utah cities are members of UTOPIA, and each city has pledged a portion of its sales tax revenue as security guarantee for the UTOPIA bond obligation. UTOPIA has not achieved its projected goals and now finds itself in a weak financial position. As a result of the security guarantees, the member cities are obligated to pay the deficit for UTOPIA—the UTOPIA debt guarantee obligation. The UTOPIA debt guarantee obligation for Orem City for 2012–13 is approximately $2.8 million of the city's $88 million budget.
¶ 4 Because the proposed tax increase exceeded Orem City's certified tax rate, 1 the City Council was required to hold various public hearings in order to adopt the tax increase, pursuant to Utah Code section 59–2–919. According to the minutes of the public hearings, the item to be discussed at each of the meetings was
• Should the City increase the certified tax rate sufficient to increase General Fund property tax revenues by $3,000,000 to address the UTOPIA obligation (principally) and other General Fund requirements as well as approximately $350,000 for tort liabilities?
At those meetings, the City Council received input from the public, which included significant opposition to both the tax increase and UTOPIA generally from several Orem City residents. At the public hearings, City Council members clarified to residents that the UTOPIA debt obligation exists independent of the tax increase, and failure to approve the tax increase would not eliminate the financial obligation of Orem City for the UTOPIA obligation.
¶ 5 Ultimately, the City Council decided to approve the tax increase, but in an amount smaller than what was originally proposed. On August 15, 2012, the Orem City Council passed Resolution No. R–2012–0014 (Resolution), which served to (1) increase Orem's property tax revenues by $1,700,000 per year and (2) adopt a budget for fiscal year 2012–13. Unhappy with the property tax increase, Petitioners timely filed a Referendum Petition Application challenging Section 1 of the Resolution relating to the property tax rate and levy. Petitioners acquired the required number of signatures for the Referendum Petition, and on October 18, 2012, the City Recorder declared the Referendum Petition to be sufficient to go to a vote pursuant to Utah Code section 20A–7–607(2)(b). On November 2, 2012, the City Attorney filed a proposed ballot title with the City Recorder pursuant to Utah Code section 20A–7–608(2)(c) and provided notice of the proposed ballot title to the City Council and the referendum sponsors pursuant to Utah Code section 20A–7–608(2)(d). On November 12, 2012, the City Attorney filed a final ballot title with the City Recorder pursuant to Utah Code section 20A–7–608(4)(b). Dissatisfied with the City Attorney's chosen language, Petitioners filed a Petition for Extraordinary Relief pursuant to Utah Code section 20A–7–608(6), challenging the wording of the ballot title.
¶ 6 We have jurisdiction pursuant to Utah Code section 20A–7–608(6). 2
¶ 7 Utah Code section 20A–7–608(6) sets forth the scope of our review of referendum ballot titles in the face of a challenge. It reads:
(a) If the ballot title furnished by the local attorney is unsatisfactory or does not comply with the requirements of this section, the decision of the local attorney may be appealed by a petition to the Supreme Court that is brought by:
(i) at least three sponsors of the referendum petition; or
(ii) a majority of the local legislative body for the jurisdiction where the referendum petition was circulated.
(b) The Supreme Court shall examine the measures and consider arguments, and, in its decision, may certify to the local clerk a ballot title for the measure that fulfills the intent of this section.
The operative question posed by the language of the statute is whether the ballot title “is unsatisfactory or does not comply with the requirements of this section.” In order to give meaning to this standard, we look to the requirements of the section in drafting the ballot title. Section 608(3) reads:
(a) The ballot title may be distinct from the title of the law that is the subject of the petition, and shall express, in not exceeding 100 words, the purpose of the measure.
(b) In preparing a ballot title, the local attorney shall, to the best of his ability, give a true and impartial statement of the purpose of the measure.
(c) The ballot title may not intentionally be an argument, or likely to create prejudice, for or against the measure.
We had occasion to interpret this language in Stavros v. Office of Legislative Research & General Counsel.3 Specifically, we grappled with how to interpret language directing the drafters to use “the best of [their] ability” in drafting and to “not intentionally” create an argument for or against the measure.4 We held that 5 Thus, we held that our review of a ballot title challenge encompasses three requirements: “1. that the ballot title give a true and impartial statement of the purpose of the measure; 2. that the ballot title not exceed 100 words in length; and 3. that the ballot title be submitted by [the stated deadline].” 6
¶ 8 Having defined the scope of our review, we now address the level of deference we afford the drafter of the ballot title in conducting our review based on these three requirements. While we have never explicitly stated how much deference we accord the drafters of ballot titles, we have stated that “[w]e will not tamper with the wording of ballot initiatives where there is no compelling reason to do so.” 7 We now take the opportunity to explain our deferential standard of review.
¶ 9 To begin with, we note that this review is unique in that we are not presented with a typical decision to review from a lower court or an agency. Instead, our job is to review the original writings of the City Attorney for statutory compliance. In creating the ballot title, the statute gives broad instructions as to content, requiring only that the product be “a true and impartial statement of the purpose of the measure” and not be an argument for or against the measure.8 As a result, the City Attorney is allotted a wide range of permissible terminology and has broad discretion in his choice of wording. Indeed, there are numerous satisfactory alternatives from which the City Attorney must have chosen in arriving at the final product in this case. In deciding among the various alternatives, the City Attorney must draw on his experience, expertise, and familiarity with the measure. In reviewing the City Attorney's final product, it is not our task to determine whether he has chosen the best possible wording, but only whether the chosen wording meets the requirements of the statute. In other words, we may not substitute our “editorial judgment” for that of the drafter.9 Therefore, we hold that in the creation of ballot titles, the drafter is entitled to considerable deference, and we will apply an abuse of discretion standard in conducting our review.10
¶ 10 In contrast to the deference we afford to the content of the title, we owe no deference to the timing and word limit requirements of the statute as there is no discretion or expertise necessary to fulfilling those requirements.
¶ 11 The parties agree that the timing and word limit requirements were both met in this case. It is solely the content of the proposed title that is the subject of our review.
¶ 12 The City Attorney drafted the following language for the referendum ballot title:
On August 15, 2012, the Orem City Council passed Resolution No. R–2012–0014, which adopted a budget for fiscal year 2012–13 and adjusted Orem's property tax to raise an additional $1,700,000 per year for municipal operations. The Orem property tax on a $187,000 residence would change from $192 to $242, which is $50 per year. The Orem property tax on a $187,000 business would change from $350 to $440, which is $90 per year. The property tax adjustment will take effect only if approved by voters.
Are you for or against the property tax adjustment...
To continue reading
Request your trial