Brown v. Cox , 387 P.3d 1040 ( 2017 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2017 UT 3
IN THE
SUPREME COURT OF THE STATE OF UTAH
MELVIN R. BROWN,
Petitioner,
v.
SPENCER COX,
Utah Lieutenant Governor, et al. 1,
Respondents.
No. 20160669
Filed January 11, 2017
On Direct Appeal
Attorneys:
Duane L. Ostler, Keven J. Stratton, Scott O. Stratton, Orem,
for petitioner
Sean D. Reyes, Att’y Gen., Thom D. Roberts, Asst. Att’y Gen.,
Stanford E. Purser, Deputy Solic. Gen., Salt Lake City,
for respondent Spencer Cox
Robert K. Hilder, David L. Thomas, Jami R. Brackin, Coalville,
for respondent Kent Jones
David R. Irvine, Janet I. Jenson, Salt Lake City,
for respondent Logan Wilde
JUSTICE PEARCE authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE DURHAM, and JUSTICE HIMONAS joined.
JUSTICE PEARCE, opinion of the Court:
_____________________________________________________________
1Other respondents are UTAH STATE BOARD OF CANVASSERS;
JOANN EVAN, Duchesne County Clerk; STACY NETZ CLARK, Morgan
County Clerk; BECKY PEART, Rich County Clerk; KENT JONES, Summit
County Clerk, LOGAN WILDE, and JOHN DOES 1–10.
BROWN v. COX
Opinion of the Court
INTRODUCTION
¶1 Petitioner Melvin Brown lost his Republican Primary election
for the Utah House of Representatives by nine votes. He challenges
that result under Utah’s election contest statute, Utah Code section
20A-4-403(2). Brown argues that he would have prevailed if a
number of disqualified ballots had been counted. Brown filed a
verified complaint in this court under Utah Code section 20A-4-
403(2). Utah Code section 20A-4-403(2)(a) instructs a registered voter
to file a petition in the district court where the petitioner resides if
the election involves voters from a single county and to file in the
Utah Supreme Court when the voter contests a multi-county
election.
¶2 We hold that Utah Code section 20A-4-403(2)(a)(ii), which
purports to provide this court with original jurisdiction over multi-
county election contests, is an unconstitutional expansion of this
court’s original jurisdiction.
BACKGROUND
¶3 The primary election for Utah House District 53 was held on
June 28, 2016. District 53 includes the north of Duchesne County and
all of Daggett, Morgan, Rich, and Summit Counties. Approximately
95 percent of voters cast their ballots by mail. Because the difference
between votes cast for Logan Wilde and votes cast for Brown
equaled less than 0.25 percent of the total number of votes cast for all
candidates, the county clerks recounted the ballots. See UTAH CODE
§ 20A-4-401(1)(a). Election officials disqualified thirty-two ballots
under Utah Code section 20A-3-302(5) because the signatures on the
ballots did not match the voters’ signatures maintained on file.
Election officers rejected another seventy ballots because the ballots
had not been postmarked or “otherwise clearly marked by the post
office as received by the post office before election day,” as Utah
Code section 20A-3-306(2)(b) mandates. Brown requested that the
Lieutenant Governor recount the ballots in accordance with Utah
Code section 20A-4-401(1).
¶4 With respect to the thirty-two ballots disqualified for
unverified signatures, Brown asked the Lieutenant Governor to
verify that election officials followed the process Utah Code section
20A-3-302(5)(b) requires: to “immediately contact the voter to verify
the signature” before disqualification. With respect to the seventy
ballots postmarked on election day, Brown asserted that although
many rural voters placed their ballots in the mail on the day before
the election, their ballots were not postmarked until the day of the
2
Cite as: 2017 UT 3
Opinion of the Court
election. After investigation, the Lieutenant Governor expressed
sympathy to Brown but concluded that the statute did not allow the
contested votes to count. Following an official canvass, the
Lieutenant Governor certified Wilde as the winner of the primary
election by nine votes.
¶5 On August 12, 2016, Brown filed a verified complaint in this
court contesting the results of the primary election under Utah Code
section 20A-4-403(2). Brown names as respondents the Lieutenant
Governor, the Utah State Board of Canvassers, the county clerks of
the affected counties, and government official “John Does 1–10 . . .
who are or may be responsible for multi-county elections in the State
of Utah.” 2 The Complaint raises two causes of action that track the
two issues Brown raised in his letter to the Lieutenant Governor.
First, Brown asks us to “open the ballots” and to obtain “further
evidence . . . from the 70 voters as to when and where they mailed
their ballots.” Brown argues that those seventy voters substantially
complied with the election statute by placing their ballots in the mail
prior to election day and should not be disenfranchised by having
their votes disqualified. He further contends that if we determine
that Brown received at least ten additional votes, we should issue a
Writ of Mandamus to respondents and order them to count the
seventy votes that were not postmarked before election day. Second,
with regard to the remaining thirty-two ballots disqualified for
unverified voter signatures, Brown hypothesizes that respondents
“may not have fully complied” with statutory requirements laid out
in Utah Code section 20A-3-302(5) because respondents “may not
have individually contacted the voters . . . to verify the signature as
required by . . . statute.” With regard to his second cause of action,
Brown requests that this court issue a Writ of Mandamus directing
respondents to recognize all ballots that were improperly
disqualified.
¶6 This court held a scheduling conference on August 23, 2016.
We invited the parties to brief whether Utah Code section 20A-4-
403(2)(a)(ii) unconstitutionally expanded this court’s jurisdiction. 3
_____________________________________________________________
2The Verified Complaint initially did not name Logan Wilde as a
respondent as required by Utah Code section 20A-4-403(2)(b)(vi).
Brown later added Wilde by stipulation.
3We have noted that this court may raise jurisdictional issues sua
sponte and that “acquiescence of the parties is insufficient to confer
(continued . . .)
3
BROWN v. COX
Opinion of the Court
Both Brown and the Lieutenant Governor argue that Utah’s Election
Code is entitled to a strong presumption of constitutionality. Brown
argues that the jurisdiction conferred by section 20A-4-403(2)(a) is
constitutional because “it does nothing more than specify Supreme
Court jurisdiction in multi-county elections . . . for pursuit of an
extraordinary writ in an election contest.” Furthermore, Brown
argues that we cannot limit the Legislature’s power to expand this
court’s jurisdiction.
¶7 The Lieutenant Governor suggests that we interpret the
Verified Complaint as a petition for extraordinary writ. The
Lieutenant Governor argues that, though the requirements found in
section 20A-4-403(2)(a)(ii) do not overlap precisely with the court
rules that govern petitions for extraordinary writ, we should hold
that the statute “fill[s] the gaps” in our rules of procedure for special
statutory proceedings such as election contests.
¶8 Wilde disagrees with Brown and the Lieutenant Governor.
Wilde argues that the election contest statute is an unconstitutional
expansion of this court’s original jurisdiction. Wilde identifies two
problems this court would face if the statute conferred jurisdiction:
(1) the Utah Supreme Court would be required to act as a finder of
fact and (2) the floodgates of litigation would be opened by forcing
this court to address every disputed election in multi-county
legislative districts.
¶9 On August 26, 2016, we issued a per curiam order holding
Utah Code section 20A-4-403(2)(a)(ii) unconstitutional. We
recognized that the Legislature cannot expand this court’s
constitutionally established original jurisdiction. We also rejected the
invitation to interpret the Election Code as an amendment to the
Utah Rules of Appellate Procedure. The order provided that we
would interpret Brown’s original Complaint as a petition for
extraordinary writ but noted technical deficiencies with that
pleading. We thus afforded Brown the opportunity to amend his
Complaint and set a briefing schedule to permit the matter to be
briefed, heard, and decided before the deadline for printing ballots
for the general election passed. Rather than amend, Brown moved to
dismiss his Complaint.
_____________________________________________________________
jurisdiction on the court.” A.J. Mackay Co. v. Okland Constr. Co., 817
P.2d 323, 325 (Utah 1991).
4
Cite as: 2017 UT 3
Opinion of the Court
¶10 We issue this opinion to more fully explain the basis for the
August 26 order holding section 20A-4-403(2)(a)(ii) of Utah’s
Election Code unconstitutional.
STANDARD OF REVIEW
¶11 Whether a statute is constitutional presents a question of
law. See State v. Drej, 2010 UT 35, ¶ 9, 233 P.3d 476. We presume the
statute is constitutional, and we “resolve any reasonable doubts in
favor of constitutionality.” Id. (citation omitted).
ANALYSIS
I. The Utah Supreme Court Lacks Jurisdiction to Hear
Brown’s Verified Complaint as an Original Proceeding
¶12 Utah Code section 20A-4-403(2)(a) provides that “[i]n
contesting the results of a primary election, . . . a registered voter
shall contest the right of any person declared nominated to any office
by filing a verified written complaint . . . with . . . the Utah Supreme
Court, if he is contesting a nomination made by voters in more than
one county.” This section of the Election Code requires a registered
voter to file a complaint directly with the Utah Supreme Court to
challenge a multi-county primary election. In other words, this
section purports to extend this court’s original jurisdiction to include
multi-county election contests.
¶13 Brown encourages us to take “a liberal view of the
Legislature’s power to grant Supreme Court jurisdiction” and cites
State v. Taylor for support. 664 P.2d 439 (Utah 1983). In Taylor, this
court affirmed that “the Legislature clearly has the power to create
appellate jurisdiction beyond that granted in the Constitution, so
long as the statutory grant does not run afoul of any specific
constitutional limitation.” Id. at 442. We disagree with Brown’s
assertion that there are “many similarities” between Taylor and the
present case. In Taylor, this court analyzed the Legislature’s authority
to create appellate jurisdiction. The Utah Constitution provides that
this court possesses “appellate jurisdiction over . . . matters to be
exercised as provided by statute.” UTAH CONST. art. VIII, § 3. But the
Utah Constitution does not grant the Legislature authority to alter
our original jurisdiction. 4 See id.
_____________________________________________________________
4 The court in Taylor focused on the application of article VIII,
section 9 of the Utah Constitution as it existed in 1983. Taylor, 664
P.2d at 440–41. The 1984 amendments to the Judicial Article of the
(continued . . .)
5
BROWN v. COX
Opinion of the Court
¶14 Article VIII, section 3 provides this court with original
jurisdiction “to issue all extraordinary writs and to answer questions
of state law certified by a court of the United States.” The Legislature
can neither increase nor decrease this court’s constitutionally derived
powers. In State ex rel. Robinson v. Durand, we reasoned that because
the Utah Constitution conferred upon the Utah Supreme Court
original jurisdiction over petitions of extraordinary writ, it was not
“within the province of the Legislature to so modify and enlarge the
office of the writ.” 104 P. 760, 762 (Utah 1908). The court noted “[i]t
must . . . be conceded that whatever power was conferred upon the
courts by the Constitution cannot be enlarged or abridged by the
Legislature.” 5 Id. at 762–63; see also Petersen v. Utah Bd. of Pardons, 907
P.2d 1148, 1152 (Utah 1995) (“Because this Court’s writ powers are
derived from the constitution, the Legislature cannot diminish them.
As early as 1908, it was established that the Legislature had no
power to restrict the writ powers.”). Therefore, Utah Code section
20A-4-403(2)(a)(ii) cannot extend the original jurisdiction of this
court to adjudicate multi-county election disputes, and we strike that
provision of the elections code as unconstitutional.
II. Section 20A-4-403(2)(a)(ii) Does Not Amend
the Utah Rules of Appellate Procedure
¶15 The Lieutenant Governor and Brown argue that we can
interpret the statute in a fashion that avoids the constitutional issue.
And they correctly note that we will endeavor to avoid constitutional
issues by construing “a statute as constitutional wherever possible,
resolving any reasonable doubt in favor of constitutionality.” Due
South, Inc. v. Dep’t of Alcoholic Beverage Control, 2008 UT 71, ¶ 39, 197
P.3d 82.
¶16 Brown and the Lieutenant Governor contend that we can
dodge the constitutional concerns if we read the Election Code’s
requirements as refinements to the Utah Rules of Appellate and Civil
_____________________________________________________________
Utah Constitution eliminated the language on which the 1983 Taylor
court relied. Compare UTAH CONST. of 1983, art. VIII, with UTAH
CONST. art. VIII.
5 The Utah Supreme Court may exercise appellate jurisdiction
“over all other matters to be exercised as provided by statute, and
[has] power to issue all writs and orders necessary for the exercise of
the Supreme Court’s jurisdiction or the complete determination of
any cause.” UTAH CONST. art. VIII, § 3.
6
Cite as: 2017 UT 3
Opinion of the Court
Procedure, which govern petitions for extraordinary relief. The
Lieutenant Governor and Brown posit that Utah Code section 20A-4-
403(2)(a)(ii) merely provides special statutory procedures for a party
seeking a writ in an election dispute. 6 But that interpretation
substitutes one constitutional problem for another.
¶17 Article VIII, section 4 of the Utah Constitution compels this
court to “adopt rules of procedure and evidence to be used in the
courts of the state” and to “manage the appellate process.” The
Constitution gives the Legislature power to “amend the Rules of
Procedure and Evidence adopted by the Supreme Court,” but the
Legislature may do so only “upon a vote of two-thirds of all
members of both houses of the Legislature.” UTAH CONST. art. VIII,
§ 4. 7 By the constitution’s plain language, the Legislature does not
adopt rules of procedure and evidence; it amends the rules the
supreme court creates. In our system of checks and balances, the
check on our authority to enact rules of evidence and procedure is
the Legislature’s ability to amend them by supermajority.8
_____________________________________________________________
6 As support, respondents cite Maxfield v. Herbert, in which this
court held that the rules of procedure function to “occupy[] any gaps
in special procedures prescribed by statute” unless the statutory
procedures “clearly counter and thus override our generally
applicable rules.” 2012 UT 44, ¶ 17, 284 P.3d 647. In Maxfield, this
court did not “reach the question of the viability of the procedural
provisions of the election code . . . given that the constitutional
question ha[d] not been briefed.” Id. ¶ 15. In the present case, the
parties have briefed, and we will address, the constitutional
question.
7 Article VIII, section 4 possesses an interesting structure. Its first
sentence references three sets of rules that the Supreme Court shall
adopt: “rules of procedure and evidence” and rules that “manage the
appellate process.” The second sentence references two sets of rules
that the “Legislature may amend”: “the Rules of Procedure and
Evidence.” We need not address the meaning, if any, of the
Constitution’s omission of rules that “manage the appellate process”
from the second sentence to decide this matter.
8 Article VIII, section 4 is a relatively recent addition to our
constitution aimed at better defining which branch of government
possessed the authority to enact rules of procedure and evidence.
Before 1943, the Utah Supreme Court enacted procedural rules, but
(continued . . .)
7
BROWN v. COX
Opinion of the Court
¶18 We have suggested that article VIII, section 4 requires the
Legislature to amend our rules by a joint resolution. Although Allred
v. Saunders did not require this court to opine on whether the
constitution requires a joint resolution, we acknowledged that the
district court had concluded that a statute protecting medical peer-
review and care-review documents from discovery and rendering
them inadmissible was “inoperative because it had been adopted by
the Legislature in an unconstitutional manner.” 2014 UT 43, ¶ 3, 342
P.3d 204. We noted that “[w]hile the Legislature has the
constitutional authority to amend the Rules of Procedure and
Evidence adopted by the Utah Supreme Court, it may only do so by
joint resolution adopted” by a two-thirds vote of all the members of
each house of the Legislature. Id. ¶ 3 n.2; see also State v. Walker, 2015
UT App 213, ¶ 15, 358 P.3d 1120 (Although a section of the Utah
Code “was adopted by a two-thirds majority, ‘it constitutes an
amendment to a statute, not an amendment to a rule of procedure
adopted by the Supreme Court.’” (citing Allred, 2014 UT 43, ¶ 3 n.2)). In
State v. Larsen, this court observed in dicta that “article VIII, section 4
[of the Utah Constitution] requires any legislation which amends a
_____________________________________________________________
the Legislature could supersede those rules by statute. Injured
Workers Ass’n of Utah v. State, 2016 UT 21, ¶ 24, 374 P.3d 14 (citing
Kent R. Hart, Note, Court Rulemaking in Utah Following the 1985
Revision of the Utah Constitution, 1992 UTAH L. REV. 153, 154 (1992)).
Between 1943 and 1951, the Legislature shifted primary procedural
rule-making authority to the Utah Supreme Court “by providing
that ‘all laws in conflict [with court rules] . . . shall be of no further
force and effect.’” Hart, supra, at 157 (alterations in original) (citing
Act of Mar. 6, 1943, ch. 33, 1943 Utah Laws 33 (repealed by Act of
Mar. 8, 1951, ch. 58, 1951 Utah Laws 150, 247)). By 1951, the
Legislature “expanded the supreme court’s rule-making
responsibilities to encompass evidentiary as well as procedural
rules.” Id. at 154. In 1983, we reasoned that procedural rulemaking
was “the exclusive prerogative of this [c]ourt.” Brickyard
Homeowners’ Ass’n Mgmt. Comm. v. Gibbons Realty Co., 668 P.2d 535,
539 (Utah 1983) (citation omitted). While the 1984 amendment to
article VIII, section 4 of the Utah Constitution tempered our holding
in Brickyard by preserving legislative power to “amend” certain court
rules, the amendment solidified our constitutional authority to adopt
rules of evidence and procedure. UTAH CONST. art. VIII, § 4; see State
v. Drej, 2010 UT 35, ¶ 26 n.4, 233 P.3d 476.
8
Cite as: 2017 UT 3
Opinion of the Court
court rule to comply with the same legislative joint rules and practice
governing amendments to statutes, that is, to refer to the rule
specifically by number and indicate how it is to be amended.” 850
P.2d 1264, 1267 (Utah 1993).
¶19 The Legislature appears to read the constitutional
requirement in the same fashion. Joint Rule 4-1-301(4) provides that
“joint resolution[s] proposing to amend the Utah Supreme Court’s
Rules of Procedure or Rules of Evidence” must include the following
resolving clause: “Be it resolved by the Legislature of the state of
Utah, with at least two-thirds of all members elected to each of the
two houses concurring . . . .” Thus, the Legislature’s joint rules not
only require passage of a joint resolution but also require a resolving
clause that clearly indicates an intent to amend.
¶20 We recognize that the Utah Constitution does not explicitly
specify that the Legislature amend our rules by joint resolution when
it requires “a vote of two-thirds of all members of both houses of the
Legislature.” UTAH CONST. art. VIII, § 4. There may be other
procedural mechanisms by which the Legislature might amend the
rules of procedure and evidence. But each of those mechanisms
would need to contain a reference to the rule to be amended and a
clear expression of the Legislature’s intent to modify our rules. This
conclusion flows from both the constitutional language and the
structure of our constitutional system.
¶21 The Utah Constitution vests the Utah Supreme Court with
the obligation and authority to “adopt” rules of procedure, evidence,
and the rules that manage the appellate process. UTAH CONST. art.
VIII, § 4. In this context, adopt takes its well-understood meaning of
“to accept formally and put into effect.” Adopt, MERRIAM-WEBSTER
ONLINE, https://www.merriam-webster.com/dictionary/adopt (last
visited Dec. 5, 2016). The constitution permits the Legislature to
“amend” those rules. UTAH CONST. art. VIII, § 4. And again, amend
takes its common meaning of to “change or modify.” Amend,
MERRIAM-WEBSTER ONLINE, https://www.merriam-
webster.com/dictionary/amend (last visited Dec. 5, 2016). By
distinguishing between adoption and amendment, the Constitution
assigns this court the responsibility to put rules into effect and
allows the Legislature to modify them by supermajority.
¶22 By their nature, amendments do not occur in a vacuum but
require reference to the text that is to be amended, a principle both
this court and the Legislature recognize. Legislative rules dictate that
when a bill proposes to amend a statute, “all of the language to be
repealed must appear between brackets with the letters struck
9
BROWN v. COX
Opinion of the Court
through” and “all of the new language proposed to be enacted by
the bill must be underlined.” Joint Rule 4-1-201(3). In similar fashion,
rule 11-102 of the Supreme Court Rules of Professional Practice
provides that to change a rule, a petitioner “should set forth the
proposed rule, amendment, or instruction, or the text of the rule or
instruction proposed for repeal.” Thus, to amend a rule of procedure
or evidence, the Legislature must reference the rule or rules it seeks
to amend.
¶23 Moreover, in our system of constitutional checks and
balances, the exercise of a check involves a constitutionally
authorized intrusion into the power of a coequal branch of
government. Such an intrusion occurs when the Governor vetoes a
bill (see UTAH CONST. art. VII, § 8) or when this court declares a
statute unconstitutional (see UTAH CONST. art. VIII, § 2). Each of those
checks requires a clear expression of the exercise of constitutional
authority. For example, the Governor must return a vetoed bill to the
house from which it originated with a statement of his or her
objections. See UTAH CONST. art. VII, § 8. When we declare a statute
unconstitutional, we do so in a written opinion that expresses the
reasons for our decision. And when the Legislature intends to
modify a rule of evidence or procedure, it must make its intent clear.
We will not assume that the Legislature intended to exercise its
check on our authority to enact rules just because a statutory
amendment passed by a supermajority can be interpreted in a
fashion that conflicts with an existing rule of evidence or procedure.
In other words, because it involves one branch exercising its
constitutional authority to check the power of a coequal branch of
government, we will not impute to the Legislature the intent to
amend our rules without a clear indication that the Legislature in
fact intended to amend our rules. The Legislature can signal its
intent effectively through—as the legislative rules recognize—a joint
resolution that identifies a specific rule to be amended.
¶24 Because the Legislature passed section 20A-4-403(2)(a)(ii) as
a bill amending a statute and not a joint resolution amending a rule
of procedure, we cannot interpret it, as the Lieutenant Governor
urges, as an expression of legislative intent to modify our rules.
10
Cite as: 2017 UT 3
Opinion of the Court
III. Brown’s Verified Complaint Could Be Treated
as a Petition for Extraordinary Writ, but It Suffers
from Pleading Deficiencies that Need to Be Cured
by Amendment
¶25 Brown urges us to treat his Verified Complaint as a petition
for extraordinary writ. And, indeed, we have the discretion to
consider a pleading filed with us as a petition for extraordinary writ.
See Renn v. Utah State Bd. of Pardons, 904 P.2d 677, 682 & n.3 (Utah
1995) (finding that requesting extraordinary relief does not require a
particular, specialized pleading). We have previously considered
pleadings as petitions for extraordinary writ in election cases. In
Gallivan v. Walker, the proponents of an initiative petition sought an
extraordinary writ in accordance with the Election Code. 2002 UT 73,
¶ 1, 54 P.3d 1066. Though this court held that the Election Code
“[did] not confer jurisdiction over the questions raised in [the]
petition, we . . . determined to treat the petition as one for an
extraordinary writ pursuant to article VIII, section 3 of the Utah
Constitution.” Id. ¶ 4. In Gallivan, we noted that “the exigencies
dictated by timing in an election-related case [may] permit the
determination of a constitutional question in an extraordinary writ
proceeding.” Id. We further reasoned that even if alternative legal
remedies may have theoretically existed, if we did not consider the
pleading as an extraordinary writ, those remedies may not be
“adequate to respond to the relief sought.” Id.
¶26 Brown’s Verified Complaint presented time-sensitive issues
similar to those in Gallivan where this court determined that time
constraints in an election-related case favored an extraordinary writ
proceeding. The Verified Complaint, filed on August 12, 2016,
requested that the court expedite proceedings in order to identify the
party nominee by August 30, 2016. As in Gallivan, we acknowledge
that even if alternative legal remedies exist, those remedies may not
be adequate to grant the relief sought as a practical matter. Our
August 26 order noted our discretion, but explained that we would
not exercise that discretion in this instance because the only ground
for jurisdiction Brown had pleaded was the unconstitutional Utah
Code section 20A-4-403(2)(a)(ii). We also recognized that the petition
suffered from a number of other pleading deficiencies. That order
also stated that we would treat an amended pleading that cured
those deficiencies as a petition for extraordinary writ.
¶27 Subsection (b) of rule 19 of the Utah Rules of Appellate
Procedure lists requirements for petitions for extraordinary writ.
Brown’s Verified Complaint, as submitted, does not meet all the
11
BROWN v. COX
Opinion of the Court
requirements rule 19 sets forth. For instance, the Verified Complaint
does not contain “a statement explaining why it is impractical or
inappropriate to file the petition for a writ in the district court.”
UTAH R. APP. P. 19(b)(5).
¶28 Requiring Brown to explain why he could not seek his writ
in district court in the first instance is more than an exercise in
ensuring he incanted magic words. To provide Brown the relief he
seeks, this court would need to sort out factual questions. As a
general rule, we are not well equipped to tackle that type of
question. We have stated, “[w]hen an appellate court considers a
petition for extraordinary relief without any record generated by
prior litigation or other official proceedings, it ordinarily may grant
relief only if that relief is based on allegations properly supported by
affidavit or other reliable documentation.” Gricius v. Cox, 2015 UT 86,
¶ 5, 365 P.3d 1198 (per curiam). We are reluctant “to arrive at a legal
ruling that is dependent on the resolution of disputed facts” because
we “do[] not conduct evidentiary hearings (except in those rare
circumstances in which reference to a special master is deemed
appropriate).” Carpenter v. Riverton City, 2004 UT 68, ¶ 4, 103 P.3d
127 (per curiam).
¶29 The allegations within the first cause of action of the Verified
Complaint would require this court to determine issues of fact. The
Complaint alleges that many of the seventy disqualified votes came
from counties where the U.S. Postal Service retrieves mail from
mailboxes one day but does not postmark them until the next day.
The Complaint states that “it is by far most probable that the 70
voters mailed their ballots in their respective counties of residence
on the day before the election.” In support of these allegations, the
Complaint refers to communications with “many” of the seventy
individuals who assert they placed their ballots in the mail before
election day. Assuming that we were to accept Brown’s legal theory,
we would have to adjudicate which, if any, of the seventy ballots
postmarked on election day were actually mailed before the day of
the election. Additionally, Brown states that he personally verified
that the U.S. Postal Service often postmarked letters the day after the
letters entered the mail by mailing to himself letters from a number
of relevant counties. In case we require further evidence, Brown’s
Complaint invites us to “obtain and open the ballots . . . and
thereafter make a request . . . requiring that further evidence be
obtained privately from the 70 voters as to when and where they
mailed their ballots.”
12
Cite as: 2017 UT 3
Opinion of the Court
¶30 The allegations contained in the Verified Complaint were
not supported by affidavit or other reliable documentation. Based
only on the anecdotal evidence provided in the Complaint, we
cannot find that disqualification of the seventy ballots was
inappropriate. Even if we were to give the cited evidence full weight,
we could not admit all seventy ballots because it is still unclear what
fraction had actually been mailed before election day. To resolve this
issue, Brown urges this court to open an inquiry to determine where
and when voters mailed their ballots. This is precisely the type of
factual finding we typically reserve for the district courts because
they are in a better position to do so. And while we may undertake
such an endeavor in the appropriate case, a petitioner needs to
explain to us in her petition why we, and not a district court, should
resolve those issues. Brown’s Verified Complaint did not address
this concern and therefore could not meet his burden of convincing
us that it was impractical or impossible to file in the district court.
We offered Brown the opportunity to amend his pleading to meet
that burden. Alternatively, he could have re-filed in district court. 9
Instead of availing himself of either of those options, Brown moved
to dismiss his Verified Complaint.
CONCLUSION
¶31 We hold that Utah Code section 20A-4-403(2)(a)(ii), which
purports to provide this court with original jurisdiction over multi-
county election contests, is unconstitutional. We reaffirm that the
Legislature must clearly express its intent to amend our rules of
procedure and evidence, and that a joint resolution specifically
aimed at a rule of evidence or procedure is an effective mechanism
_____________________________________________________________
9 We can certainly understand that when time is of the essence,
there may be some desire for a party to start in the Utah Supreme
Court. The impulse might be especially strong when that party
believes that this court will eventually be called upon to resolve the
question. And, as referenced above, there may be occasions when it
is appropriate to proceed in that manner. But when the question
presented involves fact finding on contested facts, a party should
assume that it will be better served to first seek a writ in a district
court equipped to resolve factual questions with an eye toward
asking this court for expedited review on a developed record.
Should a party wish to depart from that blueprint, she should be
prepared to explain to this court why it needs to resolve the dispute
in the first instance.
13
BROWN v. COX
Opinion of the Court
for the Legislature to express that intent. Finally, though we were
willing to consider an amended pleading as a petition for
extraordinary writ, Brown did not avail himself of the opportunity to
amend the pleading to conform to the Rules of Appellate Procedure.
We therefore dismiss Brown’s Verified Complaint.
14