UTAH SAFE TO LEARN-SAFE v. State

• Citation: 94 P.3d 217,2004 UT 32
• Decision Date: 20 April 2004
• Docket Number: No. 20030563.,20030563.
• Parties: UTAH SAFE TO LEARN-SAFE TO WORSHIP COALITION, INC. d/b/a Safe Havens for Learning, a Utah non-profit corporation, Plaintiff and Appellant, v. The STATE of Utah, a governmental entity, Olene Walker, in her official capacity as Lieutenant Governor of the State of Utah, and Mark Shurtleff, in his official capacity as Attorney General of the State of Utah, Defendants and Appellees.
• Court: Utah Supreme Court

94 P.3d 217

2004 UT 32

UTAH SAFE TO LEARN-SAFE TO WORSHIP COALITION, INC. d/b/a Safe Havens for Learning, a Utah non-profit corporation, Plaintiff and Appellant, v. The STATE of Utah, a governmental entity, Olene Walker, in her official capacity as Lieutenant Governor of the State of Utah, and Mark Shurtleff, in his official capacity as Attorney General of the State of Utah, Defendants and Appellees.

No. 20030563.

Supreme Court of Utah.

April 20, 2004.

John A. Pearce, Ryan M. Harris, Salt Lake City, Lisa Watts Baskin, North Salt Lake, for plaintiff.

Mark L. Shurtleff, Att'y Gen., Thom D. Roberts, Asst. Att'y Gen., Salt Lake City, for defendants.

DURRANT, Associate Chief Justice:

¶ 1 For nearly a decade, certain education groups and other interested individuals have attempted to pass legislation banning guns on school premises. After numerous failed attempts to pass such legislation, both by petitioning legislators and using the initiative process, these groups now bring a constitutional challenge to the initiative statute itself. During the 2003 legislative session, the legislature amended the initiative statute by the adoption of Senate Bill 28 (S.B.28). Appellant challenges several provisions of the newly-amended initiative statute, contending that the new amendments are not retroactively applicable to its initiative or, in the alternative, that all of the challenged provisions are unconstitutional. The district court granted appellees' motion to dismiss challenges to two of the provisions and also granted appellees' cross-motion for summary judgment. We affirm.

BACKGROUND

¶ 2 The Utah Constitution grants Utah citizens the right to initiate legislation and to submit such legislation to a vote of the people. See Utah Const. art. VI, § 1. The conditions and procedures by which citizens' initiatives may be placed on the ballot are governed by statute. See Utah Code Ann. §§ 20A-7-101 to -706 (2003). This case arises out of the efforts of numerous education groups and others to pass legislation banning guns from schools. Although the possession of a weapon on school premises was once proscribed, see Utah Code Ann. § 53A-3-502 (repealed 2003), a 1992 enactment of an apparently conflicting law that created an exception for persons "authorized to possess a firearm," Utah Code Ann. § 76-10-505.5(3)(a) (2003), raised concerns among educators and others.¹

¶ 3 For years the groups petitioned the legislature to pass legislation prohibiting concealed weapons permit holders from carrying weapons into Utah's elementary and secondary schools. In 1999, finding their efforts unsuccessful, these education groups, joined by a coalition of other interests, decided to take advantage of the initiative process. They drafted an initiative, filed it with the lieutenant governor, and began gathering signatures. At that time, however, the coalition was unable to gather the requisite number of signatures to satisfy the provision of the initiative statute then in place, which required initiative proponents to gather signatures equal to 10 percent of the votes cast for all candidates for governor in the last general election, both statewide and in twenty of twenty-nine counties. See Utah Code Ann. § 20A-7-201(2)(a)(ii) (1998). Three years later, the coalition again failed in an attempt to place the initiative on the 2002 ballot.

¶ 4 In 2002, this court decided Gallivan v. Walker, 2002 UT 89, 54 P.3d 1069, which struck down as unconstitutional the requirement that initiative proponents meet the 10 percent threshold in at least twenty of twenty-nine counties. Id. at ¶ 64. Gallivan left the statewide 10 percent requirement untouched. This meant that, post-Gallivan, an initiative proponent was only required to satisfy the statewide signature requirement without the necessity of reaching the 10 percent threshold within twenty or more individual counties. In response to Gallivan, the legislature passed S.B. 28, which effectuated a number of amendments to the initiative statute. The statutory amendments included a new signature provision, which retained the previous statewide 10 percent requirement and added a provision requiring an initiative proponent to meet the 10 percent threshold in twenty-six of twenty-nine senate districts, as opposed to twenty of twenty-nine counties. Utah Code Ann. § 20A-7-201(2)(a)(ii) (2003).

¶ 5 After the ruling in Gallivan, but prior to the enactment of S.B. 28, the coalition, now under the name "Safe Havens for Learning" ("Safe Havens"), filed a new initiative with the office of the lieutenant governor. Safe Havens filed its initiative on March 21, 2003, more than one month prior to the effective date of the 2003 amendments effectuated by S.B. 28.² The lieutenant governor approved the initiative for circulation by a letter dated April 18, 2003, at which time she also informed Safe Havens that it would be required to comply with the provisions of S.B. 28.

¶ 6 On April 30, 2003, Safe Havens filed a complaint against the State of Utah, Lieutenant Governor Olene Walker, and Attorney General Mark Shurtleff (collectively, "the State"). Safe Havens challenged five provisions of the amended initiative statute, four of which were introduced by S.B. 28 and one that existed prior to and was retained in the revised statute. Specifically, Safe Havens advanced challenges to the following requirements:

1. The "Senate District Requirement," which mandates that a "person seeking to have an initiative submitted to a vote of the people for approval or rejection shall," in addition to meeting the statewide signature requirement, "obtain ... from each of at least 26 Utah State Senate districts, legal signatures equal to 10% of the total of all votes cast in that district 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)(ii);

2. The "One-Year Requirement," which provides that sponsors must gather the requisite number of signatures to qualify the initiative within one year of the initiative application filing date, id. § 20A-7-202(4);

3. The "Public Meetings Requirement," which provides that sponsors must notice, hold, and document at least seven public hearings in different regions around the state before being allowed to circulate a petition for voter signatures, id. § 20A-7-204.1;

4. The "Same-or-Similar Ban," which forbids the lieutenant governor from accepting an initiative if it is "identical or substantially similar to" any initiative submitted within the last two years, id. § 20A-7-202(5)(d); and

5. The "Signature Removal Provision," which allows signatories to remove their signatures from the petition up until the time that it is "submitted to the lieutenant governor," id. § 20A-7-205(3).³

¶ 7 By a letter dated May 12, 2003, the lieutenant governor informed Safe Havens that S.B. 28 would not apply in its entirety, but that only four of the newly-enacted amendments would be applicable to Safe Havens' initiative. Among those listed were the Senate District Requirement and the One-Year Requirement. The Public Meetings Requirement and the Same-or-Similar Ban, however, were not listed as applicable provisions.

¶ 8 Safe Havens filed a motion for summary judgment on May 5, 2003. The State responded by filing a motion to dismiss with respect to two of the challenged provisions as well as a cross-motion for summary judgment. The district court granted the State's motions, denied Safe Havens' motion, and entered a final order and judgment on June 30, 2003. Safe Havens filed its notice of appeal on July 2, 2003.

¶ 9 On appeal, Safe Havens argues that none of the new amendments should be applied to its initiative because the initiative petition was filed prior to the effective date of S.B. 28. In the alternative, Safe Havens contends that all five of the challenged provisions are unconstitutional because they violate both the right to initiative under article VI, section 1 of the Utah Constitution and free speech protections granted by both the Utah and United States constitutions. We have jurisdiction pursuant to section 78-2-2(3)(j) of the Utah Code. Utah Code Ann. § 78-2-2(3)(j) (2002).

STANDARD OF REVIEW

¶ 10 A grant of summary judgment is appropriate only when "there is no genuine issue as to any material fact ... and the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c). "Because the issue of constitutionality presents a question of law, `we review the trial court's ruling for correctness and accord it no particular deference.' "Ryan v. Gold Cross Servs., Inc., 903 P.2d 423, 424 (Utah 1995) (quoting Mountain Fuel Supply Co. v. Salt Lake City Corp., 752 P.2d 884, 887 (Utah 1988)).

¶ 11 Similarly, when reviewing a lower court's grant of a motion to dismiss, "[b]ecause we consider only the legal sufficiency of the complaint, we grant the trial court's ruling no deference[, and] we review it for correctness." Franco v. Church of Jesus Christ of Latter-Day Saints, 2001 UT 25, ¶ 10, 21 P.3d 198 (internal quotations omitted).

ANALYSIS

I. RETROACTIVITY

¶ 12 As an initial matter, we must determine which, if any, of the newly-amended initiative provisions apply to Safe Havens' proposed initiative. Safe Havens argues that none of the provisions of S.B. 28 should apply to its initiative because S.B. 28 did not go into effect until more than one month after Safe Havens' initiative was approved for circulation. Safe Havens contends that it need only comply with the law in effect at the time it filed its initiative application, and that requiring it to comply with the new amendments to the initiative statute amounts to an impermissible retroactive application of the law. Safe Havens observes that if the court adopts its position on this issue, its arguments concerning four of the five disputed provisions will be mooted, leaving only its challenge to the Signature Removal Provision, which existed in its...