Walker v. Weber County, 981561

• Decision Date: 02 October 1998
• Docket Number: No. 981561,981561
• Citation: 973 P.2d 927
• Parties: 353 Utah Adv. Rep. 24 Deyonne WALKER, Nan Peacock, and Neil Hansen, Petitioners, v. WEBER COUNTY, Respondent.
• Court: Utah Supreme Court

Page 927

973 P.2d 927

353 Utah Adv. Rep. 24

Deyonne WALKER, Nan Peacock, and Neil Hansen, Petitioners, v. WEBER COUNTY, Respondent.

No. 981561.

Supreme Court of Utah.

Oct. 2, 1998.

Duncan T. Murray, Ogden, for petitioners.

David C. Wilson, Christopher Allred, Robert R. Wallace, Watts-Baskin, for respondents.

ZIMMERMAN, Justice:

This matter comes before us alternatively as a petition for extraordinary relief or as a motion to amend ballot title. Petitioners are three persons who submitted a petition to the Weber County Clerk-Auditor with over 10,000 voters' signatures and proposed for the ballot the question of whether the voters should change the Weber County form of government from the Commission Form to the County Executive-Council Form, as permitted by Utah Code Ann. section 17-35a-101, et seq., known as the Optional Forms of County Government Act. ¹

The petition was certified as sufficient to the Weber County Commission, and on May 14, 1998, the Commission directed that the proposal be placed on the ballot for the upcoming election on November 3, 1998. The Commission had no discretion in deciding whether to put the matter on the ballot under section 17-35a-204(1) of the Utah Code. ² Utah Code Ann. section 17-35a-203(2) prohibits the Commission from changing any particulars of the proposal. ³ Similarly, Utah Code Ann. section 17-35a-204(3) gives the Weber County Commission little discretion in describing the matter for the ballot. The Commission is to

prepare the ballot for each election [on a proposal for changing the form of county government] so that the question on the ballot:

(a) clearly, accurately, and impartially presents the proposition to be voted on; and

(b) does not constitute an argument or create prejudice for or against the proposition.

Utah Code Ann. § 17-35a-204(3) (Supp.1998). In furtherance of this duty, the Weber County Attorney provided the Commission with a draft of a description of petitioners' proposal at a Commission meeting on September 8, 1998. This proposal, termed a "ballot title," was approved with one change on September 10th. Petitioners appeared at both meetings and objected that the statement was an unfair description of the proposal and was designed to discourage voters from voting for the proposed form of county government. The Commission made no significant changes in response to the petitioners' objections.

Petitioners promptly filed the present proceeding in this court, asking that we review the ballot title and require that it be modified because it unfairly characterizes the proposal and is biased against the proposal. Petitioners claim that under section 20A-7-608(4) of the Code, ⁴ we have authority to review the ballot title and rewrite it to meet the statutory criteria for clarity, accuracy, and impartiality. That section, which pertains to initiative measures in general, specifically gives this court jurisdiction to review initiative ballot titles and correct them. Alternatively, petitioners contend that although the Optional Forms of County Government Act, section 17-35a-101, et seq., does not specifically authorize this court to review ballot titles, we should exercise our general extraordinary writ power under rule 65B of the Utah Rules of Civil Procedure and rule 19 of the Utah Rules of Appellate Procedure and effectively perform the same sort of review authorized expressly for initiative measures by section 20A-7-608(4). Weber County has opposed the petition on several grounds, both procedural and substantive. We address the procedural issues first and then the substance of the ballot title.

First, the County contends in its papers that this court lacks jurisdiction to consider the petition. It argues that the express jurisdictional grant in title 20A-7 does not apply here because that title deals generally with initiative proposals for legislation, while title 17-35a, which contains no such direct jurisdictional grant, deals specifically with the procedures for changes in the form of county government. Since the specific controls over the general, the County's papers contend that title 17-35a gives us no power to directly review the ballot title. As for petitioners' alternative contention that we should exercise our discretion and grant an extraordinary writ in the nature of mandamus, the County in its papers argues that petitioners should first apply to the district court for declaratory relief as a precondition to invoking our appellate jurisdiction.

At oral argument, the County persisted in its claim that we have no jurisdiction under title 20A-7 but withdrew its objections to this court taking jurisdiction over this matter under rule 65B and rule 19, principally because the election is close and requiring petitioners to go to the district court would effectively preclude timely relief. We accept the County's concession and agree to take jurisdiction of this petition under Utah Rule of Appellate Procedure 19, which authorizes this court to entertain writ proceedings under rule 65B in appropriate circumstances. We conclude that the lateness of the County's adoption of the ballot title--some four months after the Commission was informed that the petition was qualified for inclusion on the ballot and less than two months before the election, when combined with its unwillingness to disclose the proposed ballot title to petitioners before September 8th--operated to make it practically impossible for petitioners to proceed first to the district court and then appeal to this court. This is a suitable case for exercising our writ jurisdiction. For this reason, we have no occasion to decide the question of whether we also have jurisdiction under title 20A-7.

Moving to the merits, petitioners contend that the ballot title is written so as to discourage voters, most of whom will be informed about the proposed new form of government only from the ballot title, from voting for the change. Petitioners have several general complaints about the drafting, and a number of detailed proposals. As to the standard by which this court should review the drafting of the ballot title, petitioners contend that we should not grant the County broad discretion in determining how to present the proposal to the voters. The County Commission opposes the change and allowing the County broad latitude in how it describes the proposal that it opposes would be, petitioners argue, like giving the fox broad discretion over the henhouse. Instead, petitioners urge us to review the ballot title with the same close scrutiny section 20A-7-608(4) authorizes us to exercise regarding initiative proposals.

The County responds that it should be given broad discretion and that even if we think that the ballot title is not as well written or as impartial as it might be, we should not rewrite it absent a clear abuse of discretion.

Rule 65B(c), which applies here, says little that bears on the standard by which we review the County's action, other than to say that a ground for relief is a claim that a public official has "unlawfully" exercised the authority of their office. This language is an oblique reference to our case law on the availability of a writ to compel a public official to perform their duty. That case law suggests generally that in an extraordinary writ proceeding in the nature of mandamus, we review the alleged failure of governmental officials to perform their duties under an abuse of discretion standard. In other words, we determine only whether the officials have so exercised their discretion that it can be said that they have failed to do what the statute requires, or have done something which the statute does not permit. See Renn v. Utah State Bd. of Pardons, 904 P.2d 677 (Utah 1995); Olson v. Salt Lake City School Dist., 724 P.2d 960 (Utah 1986). It is this case law that the County relies upon and petitioners seek to avoid.

In deciding the approach to take here, it may be less important to state the abstract standard by which we review the Commission's action than to look closely at the statute delineating the Commission's duty. For if the statute imposes a very specific duty on the Commission, then even an abuse of discretion standard will not provide the Commission much real latitude. Here, the statute charges the County Commission to prepare the ballot title "so that the question on the ballot: (a) clearly, accurately, and impartially presents the proposition to be voted on; and (b) does not constitute an argument or create prejudice for or against the proposition." This standard is a very strict one. It is interesting to note that this standard is similar to but even more rigorous than that contained in section 20A-7-608(2), the title applicable generally to initiative measures and the statute under which petitioners alternatively seek relief from us. ⁵ For example, section 20A-7-608 requires that the local attorney preparing the ballot title give a "true and impartial" statement of the purpose of the measure, "to the best of his ability." It also states that the ballot title "may not intentionally be an argument, or likely to create prejudice, for or against the measure." Thus, under that section, the capabilities and intentions of the drafter of the ballot title are relevant to whether the result meets the statute's purposes. But under section 17-35a-204(3), the County Commission is given no such leeway. Its drafting skill and its intentions are in fact irrelevant. The statute imposes an objective requirement that the ballot title actually be clear, accurate, and impartial in its presentation of the proposal and that it not create prejudice for or against the proposal.

In light of the strictness of the statute, we think that even an abuse of discretion standard requires that we afford the Commission little latitude in conforming to its requirements. The statutory test is not whether the Commission has tried to be fair and accurate and impartial in...