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Downs v. Thompson

United States District Court, D. Utah

December 13, 2019

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

          DALE A. KIMBALL, UNITED STATES DISTRICT JUDGE

         This matter is before the court on the parties' supplemental briefing regarding the Utah Supreme Court's recent opinion answering questions certified by this court. The court has reviewed the parties' supplemental briefing. Based on that briefing, and considering the law and facts related to this case, the court issues the following Memorandum Decision and Order.

         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 (“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 Orem City Resolution R2016-0012 (the “Resolution”) authorizing the Orem Mayor to sign two agreements. 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 lane (the “BRT Project”). The second agreement was an inter-local agreement with Provo, UDOT, UTA, and Mountainland Association of Governments 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 (the “Referendum Petitioners”) filed a referendum petition application with the Orem City Recorder. The referendum petition (the “BRT Referendum”) challenged the Resolution and sought voter approval to place issues related to the Resolution on the ballot during the next election.

         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 BRT Referendum. The letter from Thompson further informed Downs that his email violated the Political Activities of Public Entities Act (“PAPEA”) 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 BRT 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 BRT 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 (“Deputy Attorney Earl”) sent a letter to Thompson in which he requested a hearing to appeal the fine assessed against Downs. On September 6, 2016, the Board of Utah County Commissioners (the “Board”) established an official appeal process for any person upon whom the Utah County Clerk/Auditor imposes a fine pursuant to Utah Code Section 20A-11-1205. On December 13, 2016, the Board held a hearing to determine the validity of the civil fine assessed against Downs under PAPEA. At the hearing, Deputy Attorney Earl made arguments against the fine. Additionally, prior to any hearing, he had submitted a detailed brief of legal arguments and authorities against the fine to the Board.

         Following a closed meeting, the Board reconvened its regular meeting and announced its decision that the BRT Referendum constituted a “ballot proposition” and to uphold the fine assessed against Downs. Two Commissioners voted to uphold the fine while one voted against upholding the fine. Specifically, the Board found that Downs' email “advocated” against the BRT Referendum because it contained only information from opponents of the BRT Referendum, invited recipients to attend a meeting held by the opponents of the BRT Referendum, distributed a link to the anti-Petition “knowbeforeyousign.com” website with the heading “PROVO CITIZEN GROUP ADVOCATES FOR BRT, ” did not contain any information summarizing arguments in favor of the BRT Referendum, and did not grant equal access to proponents of the BRT Referendum.

         On November 7, 2016, the Referendum Petitioners filed a petition in the Fourth Judicial District for Utah County, Civil No. 160401698, seeking an order compelling the Orem City Recorder to accept the BRT Referendum for the November 2017 municipal general election. On May 2, 2017, the Utah State trial court in a suit between entities not party to this suit, noting that the question presented “a difficult and close case, ” concluded that the BRT Referendum was administrative in nature and therefore not properly subject to the referendum process.

         PROCEDURAL BACKGROUND

         Downs initiated the instant suit in Utah state court on January 19, 2017, and Respondents timely removed the case to this court. In his complaint, Downs raises six causes of action: (1) an appeal of the decision rendered by the Board; (2) a declaratory judgment that there was no “ballot proposition” at the time of the alleged violation because the BRT Referendum concerned an administrative action for which no referendum was legally available; (3) a declaratory judgment that there was no “ballot proposition” at the time of the alleged violation because the BRT Referendum had not qualified for the ballot; (4) a declaratory judgment that his email did not “advocate” against a ...


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