Gallivan v. Walker

Decision Date26 August 2002
Docket NumberNo. 20020545.,20020545.
Citation2002 UT 89,54 P.3d 1069
PartiesJohn W. (Jack) GALLIVAN, an individual; Michael D. Gallivan, an individual; Frank R. Pignanelli, an individual; Phyllis Sorenson, an individual; Susan M. Kuziak, an individual; and Linds Sue Dickey, an individual, Petitioners, v. Olene WALKER, in her official capacity as Lieutenant Governor of the State of Utah, Respondent.
CourtUtah Supreme Court

Lisa Watts Baskin, Salt Lake City, for petitioners John Gallivan, Phyllis Sorenson, Susan Kuziak, Linda Dickey.

Deno G. Himonas, John A. Pearce, Salt Lake City, for petitioners Michael Gallivan, Frank Pignanelli.

Mark L. Shurtleff, Att'y Gen., Thomas D. Roberts, Asst. Att'y Gen., for Lieutenant Governor.

David Jordan, Mark E. Hindley, Marc T. Rasich, Salt Lake City, for intervenors Gene Davis, Peter Knudsen, Howard Stephenson, Michael Waddoups, James Gowans, Utahns Against Unfair Taxes.

M. Gay Taylor, Salt Lake City, for amicus Utah Legislature.

RUSSON, Justice:

¶ 1 John W. (Jack) Gallivan, Michael D. Gallivan, Frank R. Pignanelli, Phyllis Sorenson, Susan M. Kuziak, and Linda Sue Dickey (collectively, "Gallivan") seek an extraordinary writ from this court requesting the following relief: (1) a declaration that Utah's multi-county signature requirement for placing an initiative on the ballot is unconstitutional, (2) a declaration that their initiative petition was sufficient under Utah Code section 20A-7-207(2), and (3) an order compelling respondent Lieutenant Governor Olene Walker ("lieutenant governor") to accept and file the petition and to place the initiative on the 2002 general election ballot. Gallivan v. Walker, 2002 UT 73, ¶ 1, 54 P.3d 1066. We grant the extraordinary writ and order the lieutenant governor to accept and file the petition and place the initiative on the 2002 general election ballot.

BACKGROUND

¶ 2 The facts underlying and relevant to this petition for an extraordinary writ are undisputed.1 Certain citizens of the State of Utah sponsored a proposed initiative known as the Radioactive Waste Restrictions Act (the "initiative") to be placed on the 2002 general election ballot. The sponsors of the proposed initiative included petitioners Michael Gallivan, Frank R. Pignanelli, Phyllis Sorenson, and Susan M. Kuziak.

¶ 3 On April 10, 2002, the proposed initiative was filed with the lieutenant governor. On April 15, 2002, the lieutenant governor approved the initiative for circulation and issued circulation sheets in conformity with Utah Code section 20A-7-204. On or after April 15, 2002, the initiative's sponsors printed initiative packets and the sponsors commenced the circulation process of soliciting registered voters' signatures to obtain a sufficient number of signatures to have the initiative placed on the 2002 general election ballot.

¶ 4 To qualify the initiative for placement on the statewide ballot, the sponsors were required to obtain a specific number of signatures statewide and in each of more than two-thirds of the state's counties. To satisfy the statewide signature requirement,

[a] person seeking to have an initiative submitted to a vote of the people for approval or rejection shall obtain:
(i) legal signatures equal to 10% of the cumulative total of all votes cast for all candidates for governor at the last regular general election at which a governor was elected . . . .

Utah Code Ann. § 20A-7-201(2)(a)(i) (Supp. 2001). Pursuant to this requirement, the lieutenant governor determined that the sponsors were required to obtain a statewide minimum of 76,180 certified signatures in order to qualify the initiative for placement on the ballot.

¶ 5 In addition, to get the initiative placed on the ballot, the initiative's sponsors had to satisfy a multi-county distribution requirement: The sponsors had to obtain signatures from registered voters in each of at least 20 of Utah's 29 counties equal to 10 percent of all the votes cast for governor during the last gubernatorial election in the respective county in which the votes for governor were cast. Id. § 20A-7-201(2)(a)(ii) (Supp.2001). Specifically, this multi-county signature requirement provides that the sponsors must obtain

from each of at least 20 counties, legal signatures equal to 10% of the total of all votes cast in that county for all candidates for governor at the last regular general election at which a governor was elected.

Id.

¶ 6 Between April 15 and June 1, 2002, the initiative's sponsors obtained over 130,000 signatures, purportedly the largest number of signatures ever gathered during the circulation of an initiative petition in Utah. On June 3, 2002,2 the initiative's sponsors delivered the signed and verified initiative packets to each of the county clerks of the counties in which the respective initiative packets were circulated.

¶ 7 By July 1, 2002, the county clerks were required to verify that the signers are registered voters, certify on the petition that each signature is that of a registered voter, and deliver all of the packets to the lieutenant governor. Id. § 20A-7-206(3) (Supp.2001). From June 1 until the date on which each of the county clerks sent the petitions to the lieutenant governor, Utah law permitted voters that signed the initiative petition to remove their signatures from the petition. Id. § 20A-7-205(3)(a) (Supp.2001).

¶ 8 After the sponsors delivered the packets to the county clerks, opponents of the initiative, including Utahns Against Unfair Taxes, began contacting the petition signers to encourage them to remove their signatures from the petition. This campaign focused on signers residing in Utah's rural, sparsely populated counties, where fewer signature removals were required to cause the number of remaining signatures to fall below the number required in the county pursuant to the multi-county signature requirement.

¶ 9 Before the county clerks sent the signatures to the lieutenant governor, a sufficient number of signers from rural counties, approximately 3,000, removed their signatures from the initiative petition, thus disqualifying the initiative from being placed on the ballot for failure to satisfy the multi-county signature requirement. In fact, after the signatures were removed, the sponsors satisfied the multi-county signature requirement in only 14 of Utah's 29 counties, 6 counties short of the required 20.

¶ 10 The aggregate population of the 14 counties in which the sponsors satisfied the multi-county signature requirement is 87.14 percent of the state's overall population. Comparatively, the aggregate population of the other 15 counties is less than 13 percent of the state's total population. In addition, more than three-fourths of the state's population is concentrated in the 4 Wasatch Front counties of Weber, Davis, Salt Lake, and Utah. Indeed, if the sponsors had obtained only a combined 1473 additional signatures in 6 specific counties of the 15 counties in which the sponsors did not satisfy the individual county requirement (Beaver, Daggett, Garfield, Kane, Piute, and Wayne)—in which only 21,651 people, or less than one percent of the state's overall population, reside—then the sponsors would have satisfied the multi-county signature requirement.

¶ 11 Even after the names were removed under Utah Code section 20A-7-205(3)(a), the state's county clerks certified and delivered an aggregate statewide total of 95,974 signatures of registered voters to the lieutenant governor, satisfying the statewide minimum 10 percent signature requirement of 76,180. Despite exceeding the statewide 10 percent requirement, on July 5, 2002, the lieutenant governor declared the initiative petition to be legally insufficient to be placed on the ballot because the sponsors failed to meet the multi-county signature requirement of Utah Code section 20A-7-201(2)(a)(ii).

¶ 12 On July 16, 2002, Gallivan petitioned this court for an extraordinary writ pursuant to Utah Code section 20A-7-207(4). In the petition, Gallivan contends that Utah's multi-county signature requirement is unconstitutional under (1) the equal protection clause of the Fourteenth Amendment to the United States Constitution, (2) the uniform operation of laws provision of article I, section 24 of the Utah Constitution, and (3) the free speech clauses of the First Amendment to the United States Constitution and article I, section 15 of the Utah Constitution.4 Gallivan argues that the multi-county signature requirement is unconstitutional because it discriminates against registered voters residing in urban counties and that the removal provision exacerbates that discrimination by permitting just a few registered voters living in rural, less populated counties to remove their signatures from the petition to thwart an entire statewide initiative petition.

¶ 13 In addition to a brief filed by the lieutenant governor in opposition to Gallivan's petition for an extraordinary writ, we permitted Gene Davis, Peter C. Knudson, Howard A. Stephenson, Michael G. Waddoups, James R. Gowans, and Utahns Against Unfair Taxes (collectively, "intervenors") to file a brief opposing Gallivan's petition, and we permitted the Utah Legislature to file an amicus curiae brief relating to Gallivan's petition.

¶ 14 In her brief, the lieutenant governor argues that the multi-county signature requirement burdens neither Gallivan's free speech rights nor Gallivan's equal protection rights, that the multi-county signature requirement is sustainable as a general initiative regulation, and that the purposes of the multi-county signature requirement justify it. Further, the lieutenant governor contends that if the multi-county signature requirement is unconstitutional, then the requirement is not severable from the rest of the initiative enabling statute and that therefore the entire statute would have to be struck down as unconstitutional.

¶ 15 Intervenors contend5 that the multi-county signature requirement is a reasonable, and therefore...

To continue reading

Request your trial
57 cases
  • Jackson v. Dist. Of D.C. Bd. Of Elections And Ethics, No. 10-CV-20.
    • United States
    • D.C. Court of Appeals
    • 15 Julio 2010
    ... ... Gallivan v. Walker, 54 P.3d 1069, 1080 (Utah 2002) (“Article VI, section 1 [of the Utah constitution] is not merely a grant of the right to directly ... ...
  • Patterson v. State
    • United States
    • Utah Supreme Court
    • 26 Agosto 2021
    ...exist for offering broader guidance ....’ " State v. Walker , 2011 UT 53, ¶ 66, 267 P.3d 210 (Lee, A.C.J., concurring) (quoting Gallivan v. Walker , 2002 UT 89, ¶ 97, 54 P.3d 1069 (Durham, C.J., concurring)). ¶71 This matter does not present a classic Constitutional avoidance scenario. This......
  • American Bush v. City of South Salt Lake
    • United States
    • Utah Supreme Court
    • 28 Julio 2006
    ...Ordinance are appropriate and whether the Ordinance is "reasonably necessary to further . . . a legitimate legislative purpose." Gallivan v. Walker, 2002 UT 89, ¶ 42, 54 P.3d ¶ 113 As these questions deal with the interpretation of the Utah Constitution, their resolution is purely a matter ......
  • Nevadans for Prop. Rights v. Sec'Y of State
    • United States
    • Nevada Supreme Court
    • 8 Septiembre 2006
    ...1181 (2002). 58. See, e.g., Comment, Limitations on Initiative and Referendum, 3 Stan. L.Rev. 497, 503 (1951). 59. Gallivan v. Walker, 54 P.3d 1069, 1080 (Utah 2002); see also State ex rel. Stenberg v. Moore, 258 Neb. 199, 602 N.W.2d 465, 474 (1999) (ruling that "the Legislature and the ele......
  • Request a trial to view additional results
1 books & journal articles
  • Article Title: Important Utah Decisions, 2002
    • United States
    • Utah State Bar Utah Bar Journal No. 2003-04, April 2003
    • Invalid date
    ...v. Fairview City, 2002 UT 79 Berry v. Beech Aircraft, 717 P.2d 670 (Utah 1985) is still good law. Citizen Initiative: Gallivan v. Walker, 2002 UT 89 Multi-county signature requirement for placing a initiative on the general election ballot is unconstitutional under both the fundamental righ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT