Grant v. Gov. Herbert , 2019 UT 42 ( 2019 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2019 UT 42IN THE
SUPREME COURT OF THE STATE OF UTAH
BART GRANT,1
Petitioners,
v.
GOVERNOR GARY R. HERBERT, LIEUTENANT GOVERNOR
SPENCER COX, DIRECTOR OF ELECTIONS JUSTIN LEE, and
MEMBERS OF THE 62ND UTAH STATE LEGISLATURE,
Respondents.
No. 20180997
Filed August 7, 2019
On Petition for Extraordinary Relief
Attorneys:
Bart Grant, Monroe, Steven G. Maxfield, Kanosh, Daniel Newby,
Taylorsville, pro se petitioners
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1 STEVEN G. MAXFIELD, DANIEL NEWBY, ERIN WORKMAN, GARY
CLARK, RUSSELL JOHNSEN, KATHRYN GRITTON, JOSEPH RUSSO, BRUCE
B. HANKS, DESI ESCOBEDO, BRIGHTON ROPER, TERRY TREASE, ROBERT
BENCH, JEREMY LYLE, WALTER APPEL, DELANNE JESSOP HASLAM,
JANALEE TOBIAS, ROSE COWAN, DARIN DENAUGHEL, DAVID REMKES,
ANTHONY P. GARCIA, JENNIFER ADAMS, JOHN ADAMS, JUSTIN
WOODARD, RICK SMILEY, CARMEN M. SMILEY, DAVID D. PILLING,
KIMBERLY BEARD, AUBREE RYDALCH, JENNIFER F. BEARD, BRITTANY
RYDALCH, SHELBY RYDALCH, ZACHARIAS NEWBY, JOSEPH NEWBY,
RANDY NIELSEN, JOANNE TAYLOR, MARC W. TAYLOR, JORDAN
SPENCER, WARREN DINTELMANN, CARLA WHITEHOUSE, JEAN-PAUL
GIUDICI, JAIMIE A. HARRINGTON, LORI M. NEWBY, LEELA YOUNG,
ADAM LINDLEY, LISA SMITH, PERRY BUCKNER, JAMES E. ROUNDS,
SHARLA CHRISTIE, JEREMY RETAMAR ARRIETA, GARY LAMANTIA,
WILLIAM THOMPSON, and RANDY N. MILLER are also petitioners in
this case.
GRANT v. HERBERT
Opinion of the Court
Sean D. Reyes, Att’y Gen., Tyler R. Green, Solic. Gen.,
Stanford E. Purser, Deputy Solic. Gen., Salt Lake City, for
respondents Governor Gary R. Herbert, Lieutenant Governor
Spencer J. Cox, and Director of Elections Justin Lee
Eric N. Weeks, Christine R. Gilbert, Lee A. Killian, Salt Lake City,
for respondents Members of the 62nd Utah State Legislature
JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUDGE APPLEBY joined.
Having recused himself, JUSTICE PEARCE does not participate
herein. COURT OF APPEALS JUDGE KATE APPLEBY sat.
JUSTICE PETERSEN, opinion of the Court:
INTRODUCTION
¶1 In the 2018 general election, Utah voters approved a
citizens’ initiative that legalized medical cannabis. Before the
law’s effective date, Governor Gary R. Herbert called for a special
session of the Utah Legislature. During the special session, the
legislature replaced the initiative with its own statute: House Bill
3001. The day H.B. 3001 passed, some of the Petitioners in this
case filed a referendum application with Lieutenant Governor
Spencer J. Cox. If successful, the application would have allowed
H.B. 3001 to be put to a vote of the people. But the application was
not successful. The Lieutenant Governor denied it because he
determined one of the referendum sponsors did not meet the
applicable statutory requirements, and because both the Utah
House of Representatives and the Utah Senate passed H.B. 3001
by more than a two-thirds vote. Under the Utah Constitution,
when both houses of the legislature pass a bill by a supermajority,
it is referendum-proof.
¶2 Petitioners bypassed the district court and brought this
petition for extraordinary relief directly to us. They argue that the
actions of the Governor, Lieutenant Governor, and the Utah
Legislature are unconstitutional in a number of ways. For the
reasons explained below, we dismiss the petition.
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Cite as: 2019 UT 42Opinion of the Court
BACKGROUND
¶3 The Utah Constitution gives the “legal voters of the State
of Utah” the right to “initiate any desired legislation and cause it
to be submitted to the people for adoption upon a majority vote of
those voting on the legislation, as provided by statute.” UTAH
CONST. art. VI, § 1(2)(a)(i).
¶4 The initiative at issue here is the Utah Medical Cannabis
Act. After determining that the initiative had received a sufficient
number of verified signatures, the Lieutenant Governor ordered
that the Utah Medical Cannabis Act be placed on the 2018 general
election ballot as Proposition 2. Utah voters passed Proposition 2,
and it went into effect on December 1, 2018.
¶5 The day before Proposition 2’s effective date, the
Governor called for a special session of the Utah Legislature. The
special session was convened on December 3, 2018, to consider,
along with two other topics, “[a]mending the Utah Medical
Cannabis Act and related provisions.” During the one-day special
session, H.B. 3001, also titled the Utah Medical Cannabis Act, was
introduced. The bill amended many of the provisions of
Proposition 2.2 When legislators voted on H.B. 3001, it passed by a
two-thirds supermajority in both houses.
¶6 The Governor signed H.B. 3001 into law the same day.
Immediately, Petitioners Steven G. Maxfield, Daniel Newby, Bart
Grant, and Sharla Christie, as well as Lelia M. Grant, filed a
referendum application with the Lieutenant Governor. While an
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2 For context, we highlight a few of the similarities and
differences between Proposition 2 and H.B. 3001. They both
provide for the use and distribution of medical cannabis within
the State of Utah. See Proposition 2 § 26-60b-201; H.B. 3001
§ 26-61a-201. H.B. 3001 amended Proposition 2 to reduce the
number of cannabis cultivation facility licenses available, compare
Proposition 2 § 4-41b-204, with H.B. 3001 § 4-41a-205, and reduce
the number of medical cannabis dispensary/pharmacy licenses
available, compare Proposition 2 § 26-60b-304, with H.B. 3001
§ 26-61a-305. H.B. 3001 also amended the “qualifying condition”
list found in Proposition 2, but there remains some overlap.
Compare Proposition 2 § 26-60b-105, with H.B. 3001 § 26-61a-104.
This is not a comprehensive comparison of Proposition 2 and H.B.
3001.
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GRANT v. HERBERT
Opinion of the Court
initiative is the means by which voters can place voter-initiated
legislation on the ballot, a referendum is the means by which
voters can place a law passed by the legislature on the ballot for
approval or rejection by the people. See id. art. VI, § 1(2)(a)(i)(B). A
referendum application begins this process.
¶7 Petitioners’ referendum application sought to place
H.B. 3001 on the ballot for voters to approve or reject.3 However,
the Lieutenant Governor denied Petitioners’ application because
he found that Petitioner Newby did not meet the applicable
statutory requirements, and because both houses of the legislature
passed H.B. 3001 by a two-thirds supermajority.
¶8 Petitioners timely filed a petition for extraordinary relief
with this court. We exercise jurisdiction pursuant to Utah Code
section 78A-3-102(2).
STANDARD OF REVIEW
¶9 The decision to grant a petition for extraordinary relief
“lies within the sound discretion of this court.” Mawhinney v. City
of Draper, 2014 UT 54, ¶ 5, 342 P.3d 262 (citation omitted) (internal
quotation marks omitted); see also Krejci v. City of Saratoga Springs,
2013 UT 74, ¶ 10, 322 P.3d 662 (“The decision to grant or deny a
petition for extraordinary writ is discretionary.”).
ANALYSIS
¶10 Petitioners have named the Governor, the Lieutenant
Governor, the Director of Elections, and each individual member
of the 62nd Utah State Legislature as Respondents in their
petition. Petitioners argue that: (1) the Governor exceeded his
authority by convening a special session of the Utah Legislature
without “exigent circumstances”; (2) the Governor effectively
vetoed Proposition 2 in violation of Utah Code section
20A-7-212(3)(a), which prohibits the Governor from vetoing
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3 If referendum sponsors meet the statutory requirements, a
referendum is placed on the ballot either during the next regular
general election or during a special election called by the
governor. UTAH CODE § 20A-7-301(1)(b) (2018).
The Utah Code provisions involving initiatives and referenda
were amended during the legislature’s 2019 General Session. The
amendments took effect on May 14, 2019. The statutory provisions
cited throughout this opinion are the 2018 provisions.
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citizen initiatives; and (3) the Lieutenant Governor wrongly
denied the referendum application because (a) the statutory
requirements for a referendum sponsor are unconstitutional (as
applied to Petitioner Newby), and (b) the constitutional and
statutory provisions preventing referenda on laws passed by
two-thirds of both houses of the legislature should not apply to
legislation that originated from a citizen initiative. Petitioners also
request a number of remedies that do not necessarily correlate
with a specific legal claim.
¶11 Before we address Petitioners’ arguments, however, we
must resolve two issues raised by Respondents. First, the
Legislators argue that some Petitioners lack standing. And
second, Respondents argue that Petitioners have not met the
requirements of rule 19 of the Utah Rules of Appellate Procedure,
which governs this petition.
I. STANDING
¶12 Petitioners divide themselves into two classes: class one
Petitioners are “legal voters who exercised their constitutional
rights to enact public policy via the [i]nitiative process”; and class
two Petitioners are “Maxfield, Newby, and Grant [who] filed a
completed referendum application with the [Lieutenant
Governor’s] office that was subsequently denied.” The Legislators
argue that class one Petitioners lack standing.
¶13 However, we need not resolve whether some Petitioners
lack standing because it is undisputed that class two Petitioners
do have standing. And because at least some Petitioners have
standing, this issue does not present an obstacle to reaching the
merits of the petition. See Massachusetts v. E.P.A., 549 U.S. 497, 518
(2007) (“Only one of the petitioners needs to have standing to
permit us to consider the petition for review.”); Vill. of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 263–64 (1977)
(forgoing deciding an issue of standing because there was “at
least one individual plaintiff who has demonstrated standing to
assert [the] rights [at issue] as his own”);4 Snow v. Office of
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4 We recognize that Utah standing law and federal standing
law are not identical. See Brown v. Div. of Water Rights of Dep’t of
Nat. Res., 2010 UT 14, ¶ 17, 228 P.3d 747 (“Although our standing
requirements and the federal standing requirements are similar
(cont.)
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Opinion of the Court
Legislative Research & Gen. Counsel, 2007 UT 63, ¶ 10, 167 P.3d 1051(consolidating two petitions to eliminate “the legal difficulty
relating to standing for [one class of] petitioners” and to allow the
court “to address the central questions raised by the parties
without delay”).
II. RULE 19 OF THE UTAH RULES OF
APPELLATE PROCEDURE
¶14 We must also address Respondents’ argument that
Petitioners have not met some of the requirements of Utah Rule of
Appellate Procedure 19, which governs this petition along with
Utah Rule of Civil Procedure 65B.
¶15 As Respondents note, we typically limit ourselves to
“addressing only those petitions that cannot be decided in another
forum.” Carpenter v. Riverton City, 2004 UT 68, ¶ 4, 103 P.3d 127(per curiam). Rule 19 requires, among other things, that a petition
filed directly in this court show that “no other plain, speedy, or
adequate remedy exists,” and even then, “why it is impractical or
inappropriate to file the petition for a writ in the district court.”
UTAH R. APP. P. 19(b)(4)–(5). A petition must also contain a
“memorandum of points and authorities in support of the
petition.” Id. 19(b)(7).
¶16 Respondents argue that Petitioners have not met these
requirements, and for the most part Respondents are correct. In
their briefing and at oral argument, the only explanation
Petitioners provided as to why they are entitled to proceed under
rule 19 is that the referendum process is expedited: referendum
sponsors have only five days to submit an application and
forty days to gather signatures. See UTAH CODE
§§ 20A-7-302(1), -306(1)(a). But this does not address why no other
remedy exists or why Petitioners could not have filed in the
district court. If Petitioners were to prevail in any court, the
applicable timelines to proceed with the referendum would
presumably start anew. And Petitioners have not identified any
other looming deadline they must meet.
__________________________________________________________
(cont.)
. . . they are not identical.”). But those differences are not
implicated here.
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¶17 Further, Petitioners have not attempted to explain why
they could not initiate this petition in the district court. This is
problematic for Petitioners. See Anderson v. City, 2016 UT 50, ¶ 6,
387 P.3d 1014 (per curiam) (denying petitions for extraordinary
relief because petitioners had “not shouldered their burden of
establishing that it would be impractical or inappropriate for them
to file their petitions in the district court”); see also Zonts v. Pleasant
Grove City, 2017 UT 71, ¶ 4, 416 P.3d 360 (per curiam) (denying a
petition for extraordinary relief after supplemental briefing failed
to persuade the court that the petitioners “could not have asked
the district court to review their contentions in the first instance”).
¶18 Petitioners advance a number of positions and request a
wide range of relief that we are unable to resolve on the record
before us. For example, Petitioners argue: it was unconstitutional
for the Governor to call a special session in the absence of “exigent
circumstances”; the special session violated the people’s right to
vote on substantial, meaningful, and effective legislation; and the
five-day period for Petitioners to gather sponsors unduly burdens
the referendum right, among other arguments. But the legal basis
for these arguments is not developed. And we have no factual
record before us. “When 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 reiterate that “district
courts are better equipped to resolve factual questions and that
starting in the district court allows parties to create the record that
enables this court to conduct a more meaningful review.” Zonts,
2017 UT 71, ¶ 4.
¶19 However, Petitioners make two arguments that are
purely legal and require no factual development. Petitioners
argue that: (1) the Governor exceeded his authority by essentially
vetoing Proposition 2, and (2) the rule excepting legislation from a
referendum when it is passed by two-thirds of each house of the
legislature should not apply to laws that originate with an
initiative. In our discretion, we address these arguments below
and deny them on the merits. See Krejci v. City of Saratoga Springs,
2013 UT 74, ¶ 10, 322 P.3d 662 (“The decision to grant or deny a
petition for extraordinary writ is discretionary.”).
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GRANT v. HERBERT
Opinion of the Court
¶20 We dismiss the remainder of the petition without
prejudice for failure to comply with rule 19. Specifically,
Petitioners did not show that “no other plain, speedy, or adequate
remedy exists,” or “why it is impractical or inappropriate to file
the petition for a writ in the district court.” UTAH R. APP.
P. 19(b)(4)–(5).
III. THE GOVERNOR DID NOT VETO PROPOSITION 2
¶21 Petitioners argue that the Governor exceeded his
authority when he convened a special session of the legislature
because, in doing so, he effectively vetoed Proposition 2 in
violation of Utah Code section 20A-7-212(3)(a). That statute states
that the “governor may not veto a law adopted by the people.”
UTAH CODE § 20A-7-212(3)(a).
¶22 But the Governor did not veto Proposition 2. The
Governor’s actions were limited to issuing a proclamation to
convene a special session of the legislature. The Utah Constitution
explicitly grants him this power. Article VII, section 6(1) of the
Utah Constitution provides, in relevant part, that “[o]n
extraordinary occasions, the Governor may convene the
Legislature by proclamation, in which shall be stated the purpose
for which the Legislature is to be convened.”
¶23 The Governor’s veto power is distinct from his power to
convene a special session of the legislature. The veto power allows
him to act alone, single-handedly blocking legislation. See UTAH
CONST. art. VII, § 8(1). He could not and did not do that here.
Proposition 2 was amended because two-thirds of both houses of
the legislature voted for H.B. 3001. If the legislature had not done
so, the Governor could not have acted alone to block or replace
Proposition 2.
¶24 In short, the Governor exercised power that he is
constitutionally authorized to exercise. He called for a special
session of the legislature, which was then convened. But he did
not exercise his veto power to single-handedly block
Proposition 2.
IV. THE TWO-THIRDS PROVISIONS APPLY HERE
¶25 After the legislature replaced Proposition 2 with
H.B. 3001, Petitioners Maxfield, Newby, Grant, and Christie, as
well as Lelia M. Grant, immediately filed with the Lieutenant
Governor an application for a referendum. The Lieutenant
Governor denied the application for two reasons: (1) because the
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Lieutenant Governor determined that Petitioner Newby had not
voted in a regular general election in Utah in the previous three
years and therefore did not meet the requirements of Utah Code
section 20A-7-302(2)(b)(ii), and (2) because H.B. 3001 passed by a
two-thirds vote of both houses of the legislature.
¶26 Petitioners argue that the statutory and constitutional
provisions precluding a referendum on laws passed by two-thirds
of both houses of the legislature (Two-Thirds Provisions) should
not apply to legislation that originated as a citizen initiative. And
they argue that the statutory requirements to sponsor a
referendum are unconstitutional. We first address their argument
regarding the Two-Thirds Provisions.
¶27 Both the Utah Constitution and the Utah Code provide
that laws passed by a two-thirds supermajority are not subject to a
voter referendum. See UTAH CONST. art. VI, § 1(2)(a)(i)(B); UTAH
CODE § 20A-7-102(2). Article VI, section 1(2)(a)(i)(B) of the Utah
Constitution permits legal voters to “require any law passed by
the Legislature, except those laws passed by a two-thirds vote of the
members elected to each house of the Legislature, to be submitted to
the voters of the State, as provided by statute, before the law may
take effect.” (Emphasis added.) Additionally, Utah Code
section 20A-7-102(2) mirrors the constitutional Two-Thirds
Provision, stating: “Utah voters may . . . require any law passed
by the Legislature, except those laws passed by a two-thirds vote
of the members elected to each house of the Legislature, to be
referred to the voters for their approval or rejection before the law
takes effect . . . .”
¶28 Petitioners argue that these Two-Thirds Provisions “can
only be read as being designed to prevent a Citizen referendum
on laws passed on legislation originally proposed and enacted by
the Legislature in its normal and regular general session.” And
they further argue that the Two-Thirds Provisions cannot be
applied to a citizen initiative “when the Legislature creates special
powers for itself, without granting the same and equal right to the
People.” Accordingly, Petitioners contend that the Lieutenant
Governor wrongly applied the Two-Thirds Provisions to a citizen
initiative.
¶29 We first interpret the Two-Thirds Provision of the Utah
Constitution. “The cardinal rule of constitutional interpretation is
to begin with the plain language of the provision in question.”
Univ. of Utah v. Shurtleff, 2006 UT 51, ¶ 30, 144 P.3d 1109.
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GRANT v. HERBERT
Opinion of the Court
¶30 The plain language of article VI, section 1(2)(a)(i)(B) of
the Utah Constitution contravenes Petitioners’ arguments. It states
that legal voters can “require any law passed by the Legislature,
except those laws passed by a two-thirds vote of the members elected to
each house of the Legislature, to be submitted to the voters of the
State.” (Emphasis added.) It does not contain language to suggest
that the Two-Thirds Provision applies only to legislation
“originally proposed and enacted by the Legislature.” And it does
not state that the law must be passed in a regular session. Rather,
it simply refers to “any law passed by the Legislature.” UTAH
CONST. art. VI, § 1(2)(a)(i)(B). To limit this language to legislation
that did not amend a citizen initiative, or that was passed only in
a regular session, would be to add language to the text that is not
there. That we cannot do. See Krejci v. City of Saratoga Springs, 2013
UT 74, ¶ 9, 322 P.3d 662 (“We cannot append additional
conditions to the statutory framework by judicial fiat.”); see also
UTAH CONST. art. XXIII, § 1 (“Any amendment or amendments to
this Constitution may be proposed in either house of the
Legislature . . . .”). Petitioners have not made any legal or textual
argument that compels reading our constitution differently than is
dictated by its plain language.
¶31 The language in the Utah Code is nearly identical and is
therefore subject to the same analysis. UTAH CODE § 20A-7-102(2)
(“Utah voters may . . . require any law passed by the Legislature,
except those laws passed by a two-thirds vote of the members
elected to each house of the Legislature, to be referred to the
voters for their approval or rejection before the law takes effect
. . . .”).
¶32 While the Utah Constitution creates and protects the
voters’ right to place legislation on the ballot for approval or
rejection by the people, it also carves out an exception to that
right. When both houses of the legislature pass legislation by a
two-thirds supermajority, that law is not subject to a referendum.
¶33 As described above, H.B. 3001 was passed by the
legislature. And both houses voted for the bill by a two-thirds
supermajority. Accordingly, the Lieutenant Governor’s decision
that it was exempt from a referendum was correct.
¶34 Because this renders moot Petitioners’ argument about
the constitutionality of the statutory referendum sponsor
requirements, we do not address it.
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CONCLUSION
¶35 We deny on the merits Petitioners’ arguments that the
Governor effectively vetoed Proposition 2 and therefore exceeded
his authority, and that the Two-Thirds Provisions of the Utah
Constitution and Utah Code do not apply to legislation that
amends an initiative. We dismiss the rest of the petition without
prejudice, as it does not comply with rule 19 of the Utah Rules of
Appellate Procedure. Because we dismiss the petition, we do not
address the alternative grounds for dismissal advanced by
Respondents.
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