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Downs v. Thompson

United States District Court, D. Utah

August 28, 2018

STEVEN DOWNS, Assistant to the Orem City Manager; Petitioner,
v.
BRYAN THOMPSON, Utah County Clerk/Auditor, the BOARD OF COUNTY COMMISSIONERS OF UTAH COUNTY, and UTAH COUNTY, a political subdivision of the State of Utah, Respondents.

          MEMORANDUM DECISION AND ORDER CERTIFYING QUESTIONS TO THE UTAH SUPREME COURT

          DALE A. KIMBALL, UNITED STATES DISTRICT JUDGE

         Pursuant to Rule 41 of the Utah Rules of Appellate Procedure, the United States District Court for the District of Utah requests that the Utah Supreme Court answer the following questions of law:

1) Does a Utah district court have jurisdiction to review the Utah County Board of Commissioners' decision upholding a fine levied pursuant to Utah Code Section 20A-11-1205?
2) Does the term “ballot proposition” as used in Utah Code Section 20A-11-1205(1) include a referendum during the period of time before its sponsors have obtained the requisite number of signatures on the referendum petition?
3) Does the term “ballot proposition” as used in Utah Code Section 20A-11-1205(1) include a referendum during the signature gathering phase if the challenged local government action is later found to be administrative in nature and therefore not subject to a referendum?

         The issues are controlling in this matter and “there appears to be no controlling Utah law” because the Petitioner is the first person to be fined for violating Utah Code Section 20A-11-1205(1). Utah R. App. P. 41. The court acknowledges that the Utah Supreme Court may reformulate these questions. See In re W. Side Prop. Assocs., 13 P.3d 168, 170-71 (Utah 2000).

         FACTUAL BACKGROUND

         Pursuant to Utah Code Section 20A-11-1205(1)(b), “a person may not send an email using the email of a public entity to advocate for or against a ballot proposition.” “The applicable election officer shall impose a civil fine against a person who violates [the statute] up to $250 for a first violation.” Id.

         Petitioner Steven Downs resides in Orem, Utah and is employed as the assistant to the Orem City Manager. Downs has been employed in this capacity since March 3, 2014. On April 26, 2016, the Orem City Council passed a resolution authorizing the Orem Mayor to sign two agreements (Orem City Resolution R2016-0012). The first agreement was a lease agreement with the Utah Transit Authority (UTA) in which the city agreed to lease a strip of 400 West Street approximately 10 feet wide and 205 feet long for a dedicated Bus Rapid Transit (BRT) lane. The second agreement was an inter-local agreement with Provo, UDOT, UTA, and Mountainland Association of Governments (MAG) in which the parties created a project management committee and an executive committee which were authorized to make decisions regarding the BRT project.

         On April 27, 2016, several individuals filed a Referendum Application with the Orem City Recorder. The Referendum Application stated that the decision being challenged was Orem City Resolution R2016-0012.

         On May 16, 2016, Downs sent an email in which he invited Orem delegates to attend a meeting in opposition to the BRT referendum and specifically invited them to attend a meeting which had been scheduled to provide positive information regarding the BRT project.

         On May 31, 2016, Respondent Utah County Clerk/Auditor Bryan Thompson notified Downs that residents filed a complaint with the Utah Lt. Governor's Office alleging that Orem City personnel used a city email to influence the outcome of the referendum petition. The letter from Thompson further informed Downs that his email violated the Political Activities of Public Entities Act because it was sent from an Orem City email account and advocated against the current referendum process associated with the proposed BRT project. The letter informed Downs that Thompson had assessed a $250 fine against him for a first infraction under Utah Code Section 20A-11-1205(2)(a).

         On July 21, 2016, the Orem City Recorder denied the Referendum because it concerned an administrative matter that was not subject to a referendum. The denial included a letter from the Orem City Attorney stating that the referendum was not referable because the Resolution passed by the City was not a law, but an administrative act and administrative acts are not referable.

         On June 28, 2016, the Orem Deputy Attorney Steven C. Earl sent a letter to Thompson in which he requested a hearing to appeal the fine assessed against Steven Downs. On September 6, 2016, the Board of Utah County Commissioners established an official appeal process for any person upon whom the Utah County Clerk/Auditor imposed a fine pursuant to Utah Code §20A-11-1205. On December 13, 2016, the Commissioners held a hearing to ...


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