Gallivan v. Walker
| Decision Date | 26 July 2002 |
| Docket Number | No. 20020545.,20020545. |
| Citation | 2002 UT 73,54 P.3d 1066 |
| Parties | John 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 Linda Sue Dickey, an individual, Petitioners, v. Olene WALKER, in her official capacity as Lieutenant Governor of the State of Utah, Respondent. |
| Court | Utah 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 respondent.
David Jordan, Mark E. Hindley, Marc T. Rasich, Salt Lake City, for intervenors Gene Davis, Peter C. Knudsen, Howard A. Stephenson, Michael G. Waddoups, James R. Gowans, Utahns Against Unfair Taxes.
¶ 1 Petitioners seek an extraordinary writ from this court pursuant to section 20A-7-207(4) of the Utah Code containing the following relief: (1) a declaration that Utah's multi-county requirement, contained in section 20A-7-201(1)(a)(ii) of the Utah Code is unconstitutional; (2) a declaration that the Radioactive Waste Restrictions Act initiative petition was sufficient under section 20A-7-207(2) of the Utah Code; and (3) an order directing respondent Lieutenant Governor Walker to accept and file the petition and to place the initiative on the 2002 general election ballot.
¶ 2 The statute upon which petitioners rely provides in part:
Utah Code Ann. § 20A-7-207 (2001).
¶ 3 Subsection (2) of the foregoing statute prescribes the acts that are to be undertaken by the lieutenant governor in determining the sufficiency of initiative petitions. Those acts are entirely ministerial and consist solely of counting the certified names on the petitions and comparing the total number to the statutorily required number. It is clear to us that the role of the Supreme Court pursuant to subsection (4), set forth above, is to decide whether the lieutenant governor has properly performed this statutory duty. We do not believe that the statute confers jurisdiction to consider the constitutionality of the statutory scheme regulating the initiative signature process, which is all petitioners seek, and we therefore decline to consider the petition for an extraordinary writ pursuant to section 20A-7-207(4).
¶ 4 Notwithstanding our determination that section 20A-7-207 does not confer jurisdiction over the questions raised in this petition, we have determined to treat the petition as one for an extraordinary writ pursuant to article VIII, section 3 of the Utah Constitution. "Our cases demonstrate the practical utility of the flexibility of extraordinary writs in various circumstances." Renn v. Utah Bd. of Pardons, 904 P.2d 677 (Utah 1995), and this court has on at least one occasion considered the exigencies dictated by timing in an election-related case to permit the determination of a constitutional question in an extraordinary writ proceeding. See Nelson v. Miller, 25 Utah 2d 277, 480 P.2d 467 (1971). Although an alternative legal remedy by way of a declaratory judgment action theoretically exists here, we are persuaded that it is not adequate to respond to the relief sought, namely, the placement of this petition on this ballot. Petitioners' claim is that they are entitled to that relief under the state and federal constitutions, and we do not deem it adequate to deny them a hearing on that question merely because they, or someone else, might raise the same constitutional question in connection with another future ballot. Likewise, we are persuaded that the statutory scheme has been challenged on its face, and we do not believe that the absence of a factual record impairs our ability to assess the constitutionality of that scheme as written.
¶ 5 Finally, the court desires additional briefing from the parties on two questions: (1) What is or should be the standard for determining the freedom of expression and equal protection issues under the Utah Constitution? (2) What considerations affect the severability question when all portions of the initiative statute (the geographic distribution requirements, the percentage requirements, and the "signature rescission" provisions) are considered as a whole and separately?
¶ 6 We understand that an opinion issued by this court on or before August 30, 2002, will permit the inclusion of the initiative on the general election ballot if the court determines that the statutory scheme is unconstitutional. Therefore, we direct the parties to file simultaneously their memoranda addressing the supplemental questions no later than 12:00 noon on Tuesday, August 6, 2002. The court will then deem the matter submitted for decision and will issue its opinion on the constitutional questions by August 30.
THORNE, Court of Appeals Judge, concurring in part and dissenting in part.
¶ 8 I concur with the court's decision holding that Utah Code Ann. § 20A-7-207(4) (1998) does not confer jurisdiction upon this court to consider a constitutional challenge to the statute.
¶ 9 I respectfully dissent from today's decision to assert jurisdiction over this action, and thereby examine petitioners' underlying substantive claim, pursuant to this court's extraordinary writ authority.
¶ 10 In the instant case petitioners do not argue that the lieutenant governor improperly counted the number of signatures, nor do they argue that the lieutenant governor somehow improperly designated certain signatures to the wrong counties. In fact, after accepting that the lieutenant governor properly discharged her duty under the law, thereby performing the only clear duty before her, petitioners argue that the law as written violates their constitutional equal protection and first amendment rights.
¶ 11 I agree that the court has the discretion to determine constitutional claims in the context of an extraordinary writ. However, "`[t]he granting of the writ [of mandamus] is always a matter of discretion with this court and never a matter of right on behalf of the applicant.'" Renn v. Utah Bd. of Pardons, 904 P.2d 677, 683 (Utah 1995) (alternation in original) (quoting State v. Ruggeri, 19 Utah 2d 216, 429 P.2d 969, 971 (1967)); see also Mueller v. Crockett, 63 Utah 479, 227 P. 270, 273 (1924). I am not, however, convinced of the wisdom of doing so in this case. This court has previously sounded a cautionary note about such an exercise. "The validity of an objectionable statute should be litigated in an appropriate civil action between adversary parties, and in our opinion a petitioner for a writ of mandamus may not require the court to declare such statute unconstitutional in that proceeding...." Mueller, 227 P. at 273.1
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Gallivan v. Walker
...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 ......
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...cases. In Gallivan v. Walker , the proponents of an initiative petition sought an extraordinary writ in accordance with the Election Code. 2002 UT 73, ¶ 1, 54 P.3d 1066. Though this court held that the Election Code "[did] not confer jurisdiction over the questions raised in [the] petition,......