Smith v. Zook, 041521 UTSC, 20200674
| Opinion Judge | Lee, Associate Chief Justice |
| Party Name | Kent Smith, Chandra Smith, Edward M. Duke, Sharon P. Duke, and Timothy Syndergaard, Appellees, v. David Zook, in his capacity as the City Manager/Recorder/Local Clerk of Nibley City, Appellee, and Return Development LLC, Appellant/Intervenor. |
| Attorney | Daniel K. Dygert, Logan, for appellees Eric Todd Johnson, Robert A. Patterson, Salt Lake City, for appellee David K. Broadbent, Christopher R. Hogle, Chelsea J. Davis, Salt Lake City, for appellant/intervenor |
| Judge Panel | Associate Chief Justice Lee authored the opinion of the Court, in which Chief Justice Durrant, Justice Himonas, Justice Pearce, and Justice Petersen joined. |
| Case Date | April 15, 2021 |
| Court | Utah Supreme Court |
Heard February 17, 2020
On Direct Appeal
First District, Cache County The Honorable Brian G. Cannell No. 200100186
Daniel K. Dygert, Logan, for appellees
Eric Todd Johnson, Robert A. Patterson, Salt Lake City, for appellee
David K. Broadbent, Christopher R. Hogle, Chelsea J. Davis, Salt Lake City, for appellant/intervenor
Associate Chief Justice Lee authored the opinion of the Court, in which Chief Justice Durrant, Justice Himonas, Justice Pearce, and Justice Petersen joined.
OPINION
Lee, Associate Chief Justice
¶1 Nibley City enacted an ordinance approving a development project on property owned by Return Development LLC. Several citizens opposed the ordinance and collected signatures in support of a referendum petition. Some of the signatures were collected through paper "referendum packets" presented to voters in person. Others were collected through a process initiated by a document sent to voters by mail, which directed them to an online version of the referendum packet.
¶2 The Nibley City Recorder rejected the referendum petition on the ground that the signatures collected in response to the mailer were not valid, legal signatures. That decision was overruled by the district court. We reverse. We conclude that the signatures procured through the mailed document were not valid because the sponsors failed to "create" a "referendum packet" that provided "a copy of the referendum petition, a copy of the law that is the subject of the referendum, and . . . signature sheets" that were bound "together . . . in such a way that the packets may be conveniently opened for signing." See Utah Code § 20A-7-604(4). And we hold that this statutory requirement was not altered when the governor suspended enforcement of some Election Code provisions in an executive order entered in response to the COVID-19 pandemic. See Utah Exec. Order 2020-14 (April 3, 2020).
I
¶3 The Utah Constitution guarantees the right of voters to challenge a law by referendum "under the conditions [and] in the manner . . . provided by statute." Utah Const. art. VI, § 1(2)(b). Our Election Code, in turn, sets forth the conditions and manner by which voters may initiate and pursue the process for getting a referendum on the ballot. See Utah Code § 20A-7-101 et seq.
¶4 In the paragraphs below we first outline the statutory referendum standards that form the background of the case before us. Then we describe the process that was followed in this case, culminating in the denial of the referendum petition at issue and the district court's decision to overrule that denial on a petition for extraordinary writ.
A
¶5 A challenge to a local law is initiated when a voter, supported by five "sponsors," files an application for a referendum petition with the "local clerk," the election official of the local government whose law is being challenged. Utah Code § 20A-7-602. The local clerk has twenty days to determine "whether the proposed referendum is legally referable to the voters." Id. § 20A-7-602.7(1). If the proposed referendum is deemed to be legally referable, the local clerk "furnish[es] to the sponsors a copy of the referendum petition and a signature sheet," and the sponsors "prepare the referendum for circulation by creating multiple referendum packets." Id. § 20A-7-604(2), (4)(a).
¶6 To collect the necessary number of signatures, the sponsors are required to "circulate referendum packets that meet the form requirements" of the code. Id. § 20A-7-604(1). Sponsors "may prepare the referendum for circulation by creating multiple referendum packets." Id. § 20A-7-604(4)(a). But all such packets must be made "by binding a copy of the referendum petition, a copy of the law that is the subject of the referendum, and no more than 50 signature sheets together at the top in such a way that the packets may be conveniently opened for signing." Id. § 20A-7-604(4)(b). The referendum petition identifies the law being challenged, indicates that the signers order an election, and affirms that the signers meet several requirements for signing the petition. Id. § 20A-7-603(1), (4). The signature sheets include columns for voters to print their names, sign their names, and write their address and date of birth. Id. § 20A-7-603(2)(g).
¶7 Sponsors are also directed to "include, with each packet, a copy of the proposition information pamphlet provided to the sponsors." Id. § 20A-7-604(4)(d). A "proposition information pamphlet" includes a "a copy of the application for the proposed . . . referendum," a written "argument prepared by the sponsors" in favor of the proposed referendum, a written "argument prepared by the county or municipality" in response to the sponsors' argument, and a copy of an "initial fiscal impact statement and legal impact statement." Id. § 20A-7-401.5(3). The local election official compiles all these materials to create the proposition information pamphlet and then gives a copy of the pamphlet to the sponsors. Id. § 20A-7-401.5(4)(b).
¶8 Sponsors must deliver all signed, verified referendum packets "to the county clerk of the county in which the packet was circulated before 5 p.m. no later than 45 days after the day on which the sponsors receive" the referendum petition from the local clerk. Id. § 20A-7-606(1)(a). Within thirty days, the county clerk must then "determine whether each signer is a registered voter," "certify on the referendum petition whether each name is that of a registered voter," and "deliver all of the verified referendum packets to the local clerk." Id. § 20A-7-606(3). And within two days after that, the local clerk is required to determine whether "the total number of certified names from each verified signature sheet equals or exceeds the number of names required" for the referendum to qualify for the ballot-a number determined by a formula set forth in Utah Code section 20A-7-601 (which is based on the percentage of "active voters" in the county or city, with the percentage depending on the size of the county or city). See id. § 20A-7-607(2)(b) (incorporating the requirements of section 20A-7-601); id. § 20A-7-601 (setting forth requirements for different classes of counties and cities and "metro township[s]" based on population).
¶9 Some of the above requirements have been affected by an executive order entered by Governor Gary Herbert on April 3, 2020. Executive Order 2020-14 was issued pursuant to the governor's authority to "suspend the enforcement" of statutory requirements where necessary to address a declared emergency. See id. § 53-2a-209(4). In light of the declared "state of emergency due to novel coronavirus disease 2019 (COVID-19)," and the concern that this disease "spreads easily from person to person, may result in serious illness or death, and has been characterized by the World Health Organization as a worldwide pandemic," this executive order suspends the enforcement of certain elements of the above-noted requirements of the statutory referendum process. Utah Exec. Order 2020-14 (April 3, 2020) (suspending enforcement of parts of thirteen statutory provisions, including Utah Code sections 20A-7-606(1)(a), 20A-7-603(1)(b), and 20A-7-606(3)).
¶10 For example, the executive order suspends the requirements of Utah Code section 20A-7-603 "to the extent it requires a referendum sponsor to attach physically a copy of the law that is the subject of the referendum to each referendum petition" and "to the extent it requires a signature sheet to be bound physically." Id. (emphasis added). It also suspends enforcement of Utah Code section 20A-7-604 "to the extent it requires a referendum packet to be bound physically" and "to the extent it requires a signature sheet to be attached physically to a referendum packet." Id. (emphasis added).
B
¶11 In February 2020, the Nibley City Council adopted an ordinance approving a residential planned unit development on land owned by Return Development LLC. About a week later, Nibley residents Kent Smith, Chandra Smith, Edward Duke, Sharon Duke, and Timothy Syndergaard sought to challenge the ordinance as sponsors of a referendum petition under the above-described statutory process. The sponsors submitted their application to Nibley City Recorder David Zook, the "local clerk" under the statutory framework.
¶12 Zook furnished a referendum petition to the sponsors in accordance with Utah Code section 20A-7-604(2). And the sponsors then prepared "referendum packets" for circulation for voter signatures, as called for in Utah Code section 20A-7-604(1) & (4).
¶13 Initially, the sponsors printed standard, spiral-bound paper referendum packets and collected signatures through in-person contact. No one contends that those packets failed to satisfy the statutory prerequisites for a referendum packet. So we presume that the packets included "a copy of the referendum petition, a copy of the law being submitted or referred to the voters for their approval or rejection, and the signature sheets, all of which [had] been bound together as a unit." Utah Code § 20A-7-101(21).
¶14 The...
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