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Downs v. Thompson

Supreme Court of Utah

August 27, 2019

Steven Downs, Petitioner,
v.
Bryan Thompson, Board of County Commissioners of Utah County, and Utah County, Respondents.

          On Certification from the United States District Court for the District of Utah The Honorable Dale A. Kimball Case No. 2:17-cv-00330

          J. Brady Brammer, Pleasant Grove, Steven C. Earl, Orem, for petitioner

          Benson L. Hathaway, Jr., Jackie Bosshardt, Ryan R. Beckstrom, Salt Lake City, for respondents

          Justice Himonas authored the opinion of the Court in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Pearce, and Justice Petersen joined.

          OPINION

          Himonas, Justice

         INTRODUCTION

         ¶1 The United States District Court for the District of Utah certified three questions to be answered by this court: (1) "Does a Utah [state] 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?"; and (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?"

         ¶2 With respect to question one, we answer that a Utah state district court does not have appellate jurisdiction to review the Utah County Board of Commissioners' decision upholding a fine levied under Utah Code section 20A-11-1205. In doing so, we are obligated to clarify the difference between a district court's original jurisdiction and its appellate jurisdiction-specifically the source and authorization of these powers. And we are also obligated to note that the certified question does not implicate, and therefore we do not opine on, whether the Utah County Board of Commissioners' review process is constitutional, a query about which we harbor some serious reservations.

         ¶3 We answer the second question by defining a "ballot proposition" as used in Utah Code section 20A-11-1205(1)(b) to encompass the entirety of the referendum process, including the period of time before sponsors have obtained the requisite number of signatures on the referendum petition.

         ¶4 Lastly, in response to the third question, we answer that a "ballot proposition" as used in Utah Code section 20A-11-1205(1)(b) encompasses the entirety of the referendum process-including the signature gathering phase-even if the challenged local government action is later found to be administrative in nature and therefore ultimately not subject to a referendum.

         BACKGROUND

         ¶5 In April 2016, Orem City passed Resolution No. R-2016-0012, which authorized the mayor of Orem to sign a lease agreement and an interlocal cooperation agreement in connection with the implementation of the Utah Transit Authority's Bus Rapid Transit (BRT) program.[1] In response, several citizens filed a petition for referendum against the resolution. The citizens circulated referendum packets and collected the necessary signatures for a referendum before submitting their petition to the City Recorder. The City Recorder rejected the referendum petition because the City Recorder believed Resolution No. R-2016-0012 concerned an administrative action and was therefore not subject to a referendum. The City Recorder's decision was upheld by the Fourth District Court. As a result, the referendum vote sought through the petition was never put on the ballot.

         ¶6 Steven Downs, in his role as the Public Information Officer for Orem, circulated an email-using his work email account- announcing a public meeting to discuss the BRT program with the entities charged with its implementation. This email was sent after the petition had been submitted but before all necessary signatures had been gathered. The email contained only information from opponents of the BRT referendum, invited recipients to attend a meeting held by opponents of the referendum, distributed a link to an anti-petition website, and did not contain any information summarizing arguments in favor of the BRT project. In response, Bryan Thompson, the Utah County Clerk, fined Downs $250 for violating the Political Activities of Public Entities Act-specifically, Utah Code section 20A-11-1205(1)(b), which stated that "a person may not send an email using the email of a public entity . . . to advocate for or against a ballot proposition."[2]

         ¶7 Downs demanded a review of the fine before an impartial tribunal. In response, Utah County passed chapter 31 of the Utah County Code, which delegates the review of any civil fine issued under the Political Activities of Public Entities Act to the County Commission, and purports to make any decision by the Board of Commissioners appealable to the Fourth District Court in Utah County. After the Board of Commissioners voted to uphold the fine, Downs filed a petition in the Fourth District Court challenging the ruling on several grounds. Respondents removed the case to federal court. The federal court found that Downs had standing to bring his claim in federal court but reserved ruling on a number of motions until receiving guidance on the three questions certified to this court.

         ¶8 We have original jurisdiction to answer these questions of state law under Utah Code section 78A-3-102(1).

         STANDARD ...


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