McKitrick v. Gibson , 2021 UT 48 ( 2021 )

2021 UT 48IN THE
SUPREME COURT OF THE STATE OF UTAH
CATHY MCKITRICK,
Appellant,
v.
KERRY GIBSON, CITY OF OGDEN, AND OGDEN CITY RECORDS REVIEW
BOARD,
Appellees.
No. 20190811
Heard March 5, 2021
Filed August 19, 2021
On Appeal of Interlocutory Order
Second District, Weber
The Honorable Noel S. Hyde
No. 180906947
Attorneys:
Jeffrey J. Hunt, David C. Reymann, Jeremy M. Brodis, Salt Lake
City, for appellant
Peter Stirba, Valerie Wilde, Salt Lake City, for appellee Kerry
Gibson
Stephen F. Noel, Ogden, for appellee Ogden City
Clinton R. Drake, Bountiful, for appellee Ogden City Records
Review Board
JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, JUSTICE
HIMONAS, and JUSTICE PEARCE joined.
JUSTICE PETERSEN, opinion of the Court:
INTRODUCTION
¶1 Cathy McKitrick, a freelance journalist, sought
government records related to an investigation into alleged
official misconduct by Kerry Gibson, a former Weber County
Commissioner. The Ogden City Records Review Board granted
her records request. But Gibson petitioned for judicial review of
MCKITRICK V. GIBSON
Opinion of the Court
that decision. In the district court, McKitrick moved to dismiss.
She argued that Gibson lacks standing under the Utah
Government Records Access and Management Act to seek judicial
review of an appeals board’s access decision. Gibson opposed,
arguing that his petition should proceed—statutory standing
aside—because he meets the tests for traditional and public
interest standing.
¶2 This case therefore poses the question contemplated by
the concurrence in Haik v. Jones: May a statutory claimant who
lacks statutory standing proceed on the basis of traditional or
alternative standing? 2018 UT 39, ¶ 41 & n.11, 427 P.3d 1155 (Lee,
A.C.J., concurring in part and concurring in the judgment). We
did not answer that question in Haik, but we do so now. And we
hold that the answer is no. A statutory claimant must have
statutory standing, and the presence of traditional or alternative
standing will not cure a statutory standing deficiency. We
therefore reverse the district court’s interlocutory order denying
McKitrick’s motion to dismiss and remand for dismissal of
Gibson’s petition for judicial review.
BACKGROUND1
¶3 In late 2017, then Weber County Commissioner Kerry
Gibson was accused of misusing public resources for personal
benefit, including, among other things, misappropriating county
equipment to make improvements to the Gibson family farm.
Shortly thereafter, the Ogden City Police Department opened an
investigation into the allegations against Gibson and subsequently
referred the matter to Davis County.2 The Davis County
Attorney’s Office found no illegality related to the work done on
the farm and insufficient evidence to support the other
allegations. So Davis County declined to bring formal charges
against Gibson.
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1 “On appeal from a motion to dismiss, we . . . accept the
factual allegations in the complaint as true and view all
reasonable inferences from them in the light most favorable to the
plaintiff.” Castro v. Lemus, 2019 UT 71, n.3, 456 P.3d 750 (citation
omitted). Accordingly, we recite the facts as alleged in Gibson’s
petition for judicial review.
The matter was referred to Davis County “because the Weber
2
County Attorney’s Office had a conflict of interest.”
2
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¶4 After Davis County closed its investigation, McKitrick
filed a records request under the Utah Government Records
Access and Management Act (GRAMA), UTAH CODE §§ 63G-2-
101–901, seeking “the contents and findings of the police
investigation.” Gibson objected. And Ogden City denied
McKitrick’s request. The City determined that “the public’s
interest in disclosure does not outweigh the City’s interest in
classifying [the] records as private and protected,” and it
classified the records accordingly.3
¶5 As permitted by GRAMA, McKitrick appealed the denial
to the Ogden City Chief Administrative Officer. See id. § 63G-2-
401(1). The chief administrative officer affirmed the decision
below, concluding that the records had been properly classified
by Ogden City as private and protected under GRAMA.
¶6 McKitrick again appealed, this time to the Ogden City
Records Review Board (Review Board), a local appeals board
established by Ogden City as authorized by GRAMA. See id.
§ 63G-2-701(5)(c). Ogden City was the named respondent in the
appeal. At the Review Board hearing, Ogden City argued against
disclosure because, among other things, releasing the records
would compromise the identities of other persons involved in the
investigation of Gibson.
¶7 Although Gibson was not an official party to the Review
Board proceedings, he had the opportunity to be heard at the
hearing through his attorney. Gibson argued that disclosure of the
records would constitute a “clearly unwarranted invasion of [his]
personal privacy” because, as evidenced by the decision of the
Davis County Attorney’s Office not to file charges, the allegations
underlying the investigation proved “unsubstantiated.”
¶8 After reviewing the records and “carefully considering
the interests favoring access and the interests favoring
restriction,” the Review Board reversed the denial and ordered
release of the records with limited redactions. In making its
decision, the Review Board reasoned that while the names of any
complainants or witnesses were properly classified as private
under GRAMA subsection 302(2)(d), “the public’s right [to] access
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3 Specifically, Ogden City classified the records as private
pursuant to GRAMA subsection 302(2)(d) and protected pursuant
to GRAMA subsections 305(10)(d)–(e).
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MCKITRICK V. GIBSON
Opinion of the Court
and to know the information regarding the investigation of Mr.
Gibson as a public official and the alleged misuse of public funds
outweigh any interest in restricting the records.” In its order
authorizing release, the Review Board noted the right of “any
party” to appeal the decision to the district court as governed by
GRAMA sections 701(6) and 404.
¶9 Respondent Ogden City elected not to appeal the
decision. And as the prevailing party, McKitrick did not appeal
the decision. But Gibson, claiming standing under Ogden City
Municipal Code subsection 4-5-25(G)(3) and section 4-5-25(H)
(2018),4 filed a petition for judicial review. In his petition, Gibson
argued that disclosure of the records “would constitute a ‘clearly
unwarranted invasion of personal privacy’ . . . not outweighed by
any public interest” because, among other reasons, release of the
records could cause significant personal and professional harm.
Gibson’s petition named only Ogden City and the Review Board
as respondents.
¶10 McKitrick moved to intervene. She subsequently filed a
motion to dismiss Gibson’s petition, alleging, in relevant part, that
because Gibson is neither a “political subdivision” nor a
“requester,” he lacks standing under GRAMA to petition the
district court for review of the Review Board’s decision. Gibson
opposed, claiming that under our precedent, his satisfaction of the
requirements for traditional or public interest standing renders
“a[ny] lack of statutory standing . . . immaterial.”
¶11 Following oral argument, the district court concluded
that in light of “ambiguities in GRAMA” and constitutional
concerns surrounding the right to privacy, “a person who asserts
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4 Gibson cited—and we cite herein—to the portions of the
Ogden City Municipal Code in effect in 2018, when Gibson filed
his petition for judicial review. Ogden City Municipal Code
subsection 4-5-25(G)(3) (2018) provides that “any party to the
appeal may appeal the decision of the records review board to
district court . . . .” But McKitrick and Ogden City were the only
named parties to the Review Board appeal. See supra ¶¶ 6–7. And
Ogden City Municipal Code section 4-5-25(H) (2018) permits
appeals to the district court from a final decision of a local appeals
board only “in accordance with [GRAMA] and the Utah rules of
civil procedure.” See infra ¶ 42.
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a privacy interest in records has standing to appeal the decision of
a local appeals board granting access to those records.” It
therefore denied McKitrick’s motion to dismiss.
¶12 We granted leave to McKitrick to appeal from the district
court’s interlocutory order denying her motion to dismiss.
¶13 We exercise jurisdiction under Utah Code section 78A-3-
102(3)(j).
STANDARDS OF REVIEW
¶14 “A ruling on a motion to dismiss presents a legal
question that we review for correctness, affording no deference to
the district court’s decision.” Turner v. Staker & Parson Cos., 2012
UT 30, ¶ 7, 284 P.3d 600. Likewise, “[t]he interpretation . . . of a
statute [is a] question[] of law that we review for correctness.”
Castro v. Lemus, 2019 UT 71, ¶ 11, 456 P.3d 750 (citation omitted).
And while standing generally presents a mixed question of law
and fact “because it involves the application of a legal standard to
a particularized set of facts,” the question of whether a specific
individual has standing to assert a claim is primarily a question of
law. Hinkle v. Jacobsen, 2019 UT 72, ¶ 18, 456 P.3d 738 (citation
omitted). We review factual findings with deference, but “we give
minimal discretion to the district court on determinations of
whether a given set of facts fits the legal requirements for
standing.” Id. (citation omitted) (internal quotation marks
omitted).
ANALYSIS
¶15 McKitrick argues that Gibson lacks standing under the
plain language of GRAMA. And she contends that because
Gibson is a statutory claimant—as he is proceeding under the
mechanism established in GRAMA for judicial review of a local
appeals board decision—he must have statutory standing to
proceed and may not resort to any other form of standing to gain
access to the courts. Gibson disagrees. He argues both that he has
statutory standing under GRAMA and that because he meets the
requirements for traditional standing, “he [nonetheless] need not
rely upon the statute for authority” to judicially challenge the
records’ release.5
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5 In the alternative, Gibson asserts that he has public interest
standing, also commonly referred to as “alternative standing.” We
(continued . . .)
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MCKITRICK V. GIBSON
Opinion of the Court
¶16 The Utah Legislature has seen fit to establish, under the
rubric of GRAMA, a process for appellate review of governmental
entities’ GRAMA-related decisions. And despite his status as the
subject of the records here, we conclude that Gibson is not within
the scope of those authorized by the legislature to seek such
review. Further, we hold that because Gibson lacks standing
under the plain terms of the statute (GRAMA) through which he
stakes his claim, that claim may not proceed even though Gibson
has traditional standing.
I. STATUTORY STANDING
¶17 “[I]n Utah, as in the federal system, standing is a
[threshold] jurisdictional requirement.” Gregory v. Shurtleff, 2013
UT 18, ¶ 11, 299 P.3d 1098 (first alternation in original) (citation
omitted). And it is axiomatic that where the right of action is one
created by statute, “the law creating the right can also prescribe
the conditions of its enforcement.” State Farm Mut. Auto. Ins. Co. v.
Clyde, 920 P.2d 1183, 1185 (Utah 1996) (quoting Parmley v. Pleasant
Valley Coal Co., 228 P. 557, 560 (Utah 1924)).
¶18 Gibson is a statutory claimant, relying on provisions of
GRAMA to seek judicial review of an appeals board’s access
decision. Accordingly, we first ask whether Gibson meets the
requirements for standing under GRAMA—in other words,
whether he is one of the persons the statute allows to seek judicial
review of appeals board decisions regarding access to government
records.
¶19 “When interpreting a statute, our primary objective is to
ascertain the intent of the legislature.” Castro v. Lemus, 2019 UT 71,
¶ 17, 456 P.3d 750 (citation omitted) (internal quotation marks
omitted). Because “[t]he best evidence of the legislature’s intent is
the plain language of the statute itself,” we look first to the
statutory text. Id. (alteration in original) (citation omitted). But we
do not interpret statutory text in isolation. Olsen v. Eagle Mountain
City, 2011 UT 10, ¶ 12, 248 P.3d 465. Instead, we “determine the
meaning of the text given the relevant context of the statute
(including, particularly, the structure and language of the
statutory scheme).” Id. In doing so, we presume, “absent a
need not reach the merits of this argument, however, because
(1) Gibson’s lack of statutory standing is dispositive regardless of
whether he has traditional or alternative standing, and (2) there is
no dispute that Gibson has traditional standing here.
6
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contrary indication, that the legislature used each term
advisedly.” Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50,
¶ 14, 267 P.3d 863 (citation omitted). “When the meaning of [a]
statute can be discerned from its language, no other interpretive
tools are needed.” Id. ¶ 15 (alteration in original) (citation omitted)
(internal quotation marks omitted).
¶20 GRAMA establishes a process through which an
individual may request access to a government record. UTAH
CODE § 63G-2-204(1). And when a governmental entity denies
such a request, GRAMA establishes a process to appeal that
decision. Id. §§ 63G-2-401–404, -701(5)–(6). We look at the specific
provision at issue here—subsection 701(6)(a), which provides for
appeals from access decisions of a local appeals board—within the
context of this overarching appellate scheme. We conclude that
when reading subsection 701(6)(a) in context, it is clear that only a
political subdivision or a requester may appeal the decision of a
local appeals board. And Gibson is neither a political subdivision
nor a requester.
A. The GRAMA Appeals Process6
1. The Initial Record Request to the Governmental Entity
¶21 The process of requesting a government record through
GRAMA begins with a record request to a governmental entity.
UTAH CODE § 63G-2-204(1)(a). Here, McKitrick requested the
investigative records through a GRAMA request to the Ogden
Police Department. Ogden City responded to her request and
denied it.
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6 We address only who has standing to appeal access decisions
of a local appeals board to the district court. The statute provides
a process for appealing other GRAMA-related decisions, such as a
governmental entity’s classification or designation of a record as
public, private, controlled, protected, or exempt from disclosure.
UTAH CODE § 63G-2-401(8). But these provisions are not at issue
here. GRAMA also contains provisions that are specific to
business confidentiality claimants, which we also do not address.
See, e.g., id. §§ 63G-2-401(4)(a), -404(3). And finally, our analysis is
specific to petitions for judicial review of a local appeals board’s
decision. We do not address appeals that proceed to or from the
State Records Committee.
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Opinion of the Court
¶22 When a governmental entity denies a record request,
GRAMA establishes a process for appealing that decision. This
process is generally laid out in Part 4 of GRAMA. See id. §§ 63G-2-
400.5–406. However, because Ogden City—the governmental
entity in control of the record here—is a “political subdivision,”7
Part 7 of GRAMA is relevant. See id. §§ 63G-2-103(11)(a)(v), -701.
Part 7 permits political subdivisions to “adopt an ordinance or a
policy applicable throughout its jurisdiction relating to
information practices including classification, designation, access,
denials, segregation, appeals, management, retention, and
amendment of records.” Id. § 63G-2-701(2)(a) (emphases added).
¶23 Ogden City has chosen to enact its own ordinances
related to information practices pursuant to Part 7. See OGDEN
CITY, UTAH MUN. CODE § 4-5-1(A)–(B) (2018). So here we review
the relevant provisions in both Part 4 and Part 7 of GRAMA.
2. Appeal of a Governmental Entity’s Denial to the Chief
Administrative Officer
¶24 If the governmental entity grants a records request,
GRAMA provides no mechanism to appeal that decision.
However, if the governmental entity denies a record request, as
did Ogden City, GRAMA permits the “requester” or an “interested
party” to appeal the “access denial” to the governmental entity’s
designated chief administrative officer. UTAH CODE § 63G-2-
401(1)(a) (emphases added). In Part 7, GRAMA requires a political
subdivision to “include a process for a requester or interested party
to appeal an access denial to a person designated by the political
subdivision as the chief administrative officer” for such purposes.
Id. § 68G-2-701(5)(b) (emphases added).
¶25 Both “requester” and “interested party” are defined
terms. See id. § 63G-2-701(1)(c) (referencing id. § 63G-2-400.5). A
requester is “a person who submits a record request to a
governmental entity.” Id. § 63G-2-400.5(7). Here, that is McKitrick.
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7 GRAMA itself does not define “political subdivision,” but
other sections of Title 63G define the term similarly, as “any
county, city, town . . . or other governmental subdivision or public
corporation.” Id. § 63G-7-102(8); see also id. §§ 63G-9-201(1)(a), -22-
102(1). Under any of these definitions, Ogden City is a political
subdivision.
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¶26 And an “interested party” is a person, other than the
requester, who is “aggrieved” by the denial of a record request. Id.§ 63G-2-400.5(3).8 Notably, the statutory definition does not
include a person who is aggrieved by the grant of a record
request. So Gibson is not an “interested party” under GRAMA.
¶27 Because Ogden City denied McKitrick’s request, she
appealed the access denial to Ogden City’s chief administrative
officer for GRAMA appeals. And the chief administrative officer
affirmed the city’s access denial.
3. Appeal of a Chief Administrative Officer’s “Appellate
Affirmation” of the Governmental Entity’s Denial
¶28 If a chief administrative officer reverses the governmental
entity’s decision to deny access to a record, and thereby grants the
record request, GRAMA does not provide an avenue to appeal the
decision. But if the chief administrative officer affirms the
governmental entity’s denial of the request (an “appellate
affirmation”), GRAMA allows the requester to appeal the decision
to the State Records Committee, a local appeals board, or the
district court through a petition for judicial review. Id. § 63G-2-
402(1)(a)–(b). But where, as here, the governmental entity is a
political subdivision that has established its own local appeals
board pursuant to Part 7, GRAMA requires any appeal of a chief
administrative officer’s decision to go to the local appeals board.
Id. § 63G-2-701(5)(c)(iii).
¶29 It is notable that at this juncture, GRAMA distinguishes
between the appellate rights of the requester and an interested
party. While a requester has three avenues of appeal (unless the
governmental entity is a political subdivision), the statute does
not give an interested party the same options. Rather, it directs an
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8 An “interested party” is “a person, other than a requester,
who is aggrieved by an access denial or an appellate affirmation
. . . .” Id. § 63G-2-400.5(3). Both an “access denial” and an
“appellate affirmation” refer to denials of record requests. An
“access denial” means a governmental entity’s initial denial of a
record request, in whole or in part. Id. § 63G-2-400.5(1). And an
“appellate affirmation” is “a decision of a chief administrative
officer, local appeals board, or State Records Committee affirming
an access denial.” Id. § 63G-2-400.5(2) (emphasis added).
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MCKITRICK V. GIBSON
Opinion of the Court
interested party to appeal an appellate affirmation to the State
Records Committee. Id. § 63G-2-402(3).
¶30 Here, Ogden City’s chief administrative officer affirmed
the city’s access denial. So GRAMA provided McKitrick the right
to appeal that decision to the Ogden City Records Review Board.
And the Review Board rejected the chief administrative officer’s
decision and granted McKitrick’s records request. It is the appeal
of this decision—specifically, Gibson’s petition for judicial review
of the Review Board’s decision to grant McKitrick’s records
request—that is before us.
4. Appeal of a Local Appeals Board Decision
¶31 GRAMA subsection 701(6)(a) governs this specific
situation. It states that “[a] political subdivision or requester may
appeal an appeals board decision . . . by filing a petition for
judicial review with the district court.” Id. § 63G-2-701(6)(a)(ii)
(emphases added). Notably, this is the first procedural stage at
which GRAMA provides for an appeal of a grant—in addition to a
denial—of a record request.9 And it allows either a “political
subdivision” or a “requester” to appeal the board’s decision. As
discussed, both “political subdivision” and “requester” are
defined terms. See supra ¶¶ 22 n.7, 25. The “requester” here is
McKitrick. And Ogden City is the “political subdivision” in this
case.
¶32 McKitrick, as the prevailing party, had no need to appeal.
Ogden City chose not to appeal. And GRAMA does not provide
any other person or entity with the right to appeal the Review
Board decision.
B. Gibson’s Statutory Standing
¶33 Gibson, however, did appeal. Gibson agrees that he is not
a political subdivision or requester under GRAMA and is
therefore not “specifically enumerated as the type of appellant the
statute contemplates will seek judicial review.” But he argues that
GRAMA nonetheless grants him standing for the following
reasons.
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9 Section 701(6) states that an appeals board “decision” may be
appealed. Id. § 63G-2-701(6)(a). Unlike other sections of GRAMA,
it does not specify that only denials may be appealed. See supra
¶ 24.
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¶34 First, Gibson notes GRAMA’s recognition of “the right of
privacy in relation to personal data gathered by governmental
entities.” UTAH CODE § 63G-2-102(1)(b). He then argues that as the
subject of the investigative records at issue, he has standing as an
“interested party” under the statute because his right to privacy is
at stake.10
¶35 This is incorrect. As discussed, Gibson is not an interested
party under the statute. See supra ¶ 26. And while it is true that
GRAMA recognizes the importance of both “the public’s right of
access to information concerning the conduct of the public’s
business” and “the right of privacy in relation to personal data
gathered by governmental entities,” UTAH CODE § 63G-2-102(1),
this recognition does not amount to a grant of standing. See Wash.
Cnty. Water Conservancy Dist. v. Morgan, 2003 UT 58, ¶¶ 8–10, 82
P.3d 1125 (concluding that “broad statements of purpose” are
“insufficient to establish statutory standing” and declining to infer
from such statements a legislative intent to confer statutory
standing).11
¶36 Gibson next asserts that the language in subsection
701(6)(a) granting political subdivisions and requesters the right
to appeal is “not exclusive.” So he argues that while the
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10Gibson has not made any claim that the relevant GRAMA
provisions are unconstitutional as applied to him. The only
question before us is whether Gibson has standing to pursue his
GRAMA petition for judicial review.
11 We note that GRAMA protects individuals whose data
appears in government records in other ways. For example,
GRAMA allows any person “aggrieved by a governmental
entity’s classification or designation determination” to appeal the
classification or determination. UTAH CODE § 63G-2-401(8). And it
directs decisionmakers at various stages of the record request and
appeals processes to weigh the interests favoring disclosure
against the interests favoring nondisclosure. See, e.g., id. § 63G-2-
401(6) (consideration by a chief administrative officer); id. § 63G-2-
403(11)(b) (consideration by the State Records Committee); id.
§ 63G-2-404(7)(a) (consideration by the district court). However,
the statute stops short of granting standing to appeal an access
decision on the basis of a person’s privacy interests.
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Opinion of the Court
subsection does not explicitly include someone in his
circumstance, it does not necessarily exclude him either.
¶37 This is a misreading of the statute. Because “we presume,
‘absent a contrary indication, that the legislature used each word
advisedly,’” Marion Energy, 2011 UT 50, ¶ 14 (citation omitted), we
consequently anticipate “that the expression of one [term] should
be interpreted as the exclusion of another.” Bagley v. Bagley, 2016
UT 48, ¶ 10, 387 P.3d 1000 (alteration in original) (citation
omitted). “We therefore seek to give effect to omissions in
statutory language by presuming all omissions to be purposeful.”
Marion Energy, 2011 UT 50, ¶ 14.
¶38 The associated canon of construction—expressio unius est
exclusio alterius (expressio unius)—holds that “to express or include
one thing implies the exclusion of the other, or of the alternative.”
Expressio unius est exclusio alterius, BLACK’S LAW DICTIONARY (11th
ed. 2019); see also Pulham v. Kirsling, 2019 UT 18, ¶ 30 n.9, 443 P.3d
1217 (citing the above definition). And while canons of
construction “are not formulaic, dispositive indicators of statutory
meaning,” they serve as “tools that guide our construction of
statutes in accordance with common, ordinary usage and
understanding of language—in this instance, the expectation that
legislators typically use language advisedly and tend not to speak
in superfluous terms.” Olsen, 2011 UT 10, ¶ 19.
¶39 On this basis—and absent any contrary indication in the
statutory text itself—we assume that the legislature used
“requester” and “political subdivision” advisedly in crafting
GRAMA’s appellate review language, and to the exclusion of
other persons or entities that might have an interest in appealing a
local review board’s access decision. Cf. In re Gestational
Agreement, 2019 UT 40, ¶ 20, 449 P.3d 69 (assuming the term
“mother” in the pertinent statute was used advisedly and to the
exclusion of words like “father” or “parent”).
¶40 Of course, the legislature’s inclusion of specific terms
does not always exclude others. In general,
[t]he inclusion of specific matter in a statute implies
the exclusion of something else “only where in the
natural association of ideas the contrast between a
specific subject matter which is expressed and one
which is not mentioned leads to an inference that the
latter was not intended to be included within the
statute.”
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Cullum v. Farmers Ins. Exch., 857 P.2d 922, 924 (Utah 1993) (citation
omitted). For example, where a statute sets forth a list of
considerations to be included among relevant facts a court might
consider, such a list is “exemplary—an indication of some of the
considerations that may be relevant,” but not all. State v.
Wadsworth, 2017 UT 20, ¶ 8, 393 P.3d 338. When specific terms are
not intended to be exclusive, we expect to see textual indicators
such as “for example” or “including,” or for the context of the
provision to otherwise suggest that it is not meant to be
exhaustive. See, e.g., Samantar v. Yousuf, 560 U.S. 305, 317 (2010)
(“[U]se of the word ‘include’ can signal that the list that follows is
meant to be illustrative rather than exhaustive.”); Graves v. N.E.
Servs., Inc., 2015 UT 28, ¶ 53, 345 P.3d 619 (“In statutory cases far
and wide, [the term ‘including’] is routinely construed as
introducing a non-exclusive, exemplary list.”).
¶41 But subsection 701(6)(a) does not bear such a reading. It
says simply that: “A political subdivision or requester may appeal
an appeals board decision . . . by filing a petition for judicial
review with the district court.” UTAH CODE § 63G-2-701(6)(a)(ii).
There is no textual suggestion that the terms “political
subdivision” and “requester” are meant to be merely illustrative
or otherwise non-exclusive. And as our discussion of this
provision and the other relevant GRAMA appeals provisions
makes clear, the legislature carefully chose which access decisions
were subject to appeal and which persons could pursue those
appeals. Accordingly, we reject Gibson’s assertion that the
legislature’s specific identification of these two terms in
subsection 701(6)(a) does not limit appellate standing accordingly.
¶42 Gibson’s final argument is that the Ogden City Municipal
Code grants him standing to petition for judicial review of the
Review Board’s decision. However, the provision he cites does not
grant broader standing than GRAMA subsection 701(6)(a). Rather,
it explicitly affirms that appeal of a final decision of the Review
Board “may be made to the district court, in accordance with
[GRAMA] and the Utah rules of civil procedure.” OGDEN CITY,
UTAH, MUN. CODE § 4-5-25(H) (2018). And as we have explained,
GRAMA permits only a political subdivision or the requester to
appeal a decision of the Review Board. See UTAH CODE § 63G-2-
701(6)(a).
¶43 Accordingly, we conclude that under the plain language
of GRAMA, only a requester of a record—in this case,
McKitrick—or a political subdivision—here, Ogden City—may
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Opinion of the Court
petition for judicial review of a local appeals board decision in the
district court. See id. Gibson, who is neither a requester nor a
political subdivision, therefore lacks statutory standing in this
case.
II. TRADITIONAL STANDING
¶44 We next turn to whether, despite lacking statutory
standing, Gibson may nonetheless proceed as a statutory claimant
because he has traditional standing. Neither party—nor the court
below—contests that Gibson in fact possesses traditional standing.
To establish traditional standing, “the petitioning party must
allege that it has suffered or will suffer[ ] some distinct and
palpable injury that gives [it] a personal stake in the outcome of
the legal dispute.” Utah Chapter of Sierra Club v. Air Quality Bd.,
2006 UT 74, ¶ 19, 148 P.3d 960 (alterations in original) (citation
omitted) (internal quotation marks omitted). As the subject of the
records, Gibson clearly meets this test.
¶45 But the parties disagree on whether the presence of
traditional standing can cure Gibson’s lack of statutory standing
in this case. McKitrick argues that individuals like Gibson, who
assert “some interest in government records [but] are not within
the terms of the statute,” have no right to seek judicial review of a
local appeals board decision. Gibson argues that a plaintiff
without statutory standing may in the alternative demonstrate
that he meets the test for traditional or alternative standing12 and
proceed on those grounds.13
__________________________________________________________
12 See supra ¶ 15 n.5, for why we need not address Gibson’s
alternative standing claim.
13 Gibson cites National Parks & Conservation Ass’n v. Board of
State Lands, 869 P.2d 909 (Utah 1993); Utah Chapter of the Sierra
Club v. Utah Air Quality Board, 2006 UT 74, 148 P.3d 960; and Morra
v. Grand County, 2010 UT 21, 230 P.3d 1022, for the proposition
that “Utah case law shows a wide variety of circumstances under
which traditional standing has been granted despite a statutory
limitation.” But in National Parks and Sierra Club, we looked solely
at whether petitioners had constitutional standing under the
traditional or alternative tests. See Nat’l Parks, 869 P.2d at 913–14
(applying the tests for and articulating the rationale behind the
traditional and alternative standing doctrines); Sierra Club, 2006
UT 74, ¶¶ 17–44 (same). And Morra, like Cedar Mountain, see infra
(continued . . .)
14
Cite as: 2021 UT 48Opinion of the Court
¶46 While we have never squarely held that a petitioner who
lacks statutory standing for a statutory claim may nevertheless
proceed on traditional or alternative standing grounds, our dicta
in past cases may have contributed to confusion in this area. In
Cedar Mountain Environmental, Inc. v. Tooele County ex. rel. Tooele
County Commission, 2009 UT 48, 214 P.3d 95, for example, we
analyzed whether the petitioners met the test for alternative
standing in spite of previously holding that they had adequately
alleged statutory standing.14 But because the alternative standing
analysis was unnecessary to our decision in that case, any
language in Cedar Mountain “arguably suggest[ing] that a plaintiff
could overcome a lack of statutory standing by satisfying the
elements of ‘alternative’ constitutional standing,” Haik v. Jones,
2018 UT 39, ¶ 41 n.11, 427 P.3d 1155 (citation omitted) (Lee, A.C.J.,
concurring in part and concurring in the judgment), was merely
dicta, and we disavow it here.
¶47 Gibson’s reliance on the language in Washington County
Water Conservancy District v. Morgan, 2003 UT 58, 82 P.3d 1125, is
similarly misplaced. Gibson cites Washington County for the
proposition that a “plaintiff who has not been granted standing to
sue by statute must either show [traditional standing] or meet one
of the two exceptions to standing recognized in cases involving
‘important public issues.’” (Quoting id. ¶ 17.) But Washington
County involved a statute that granted a right to judicial review
that was “consistent with our traditional standing requirement,”
blurring the distinction between the statutory and constitutional
standing analysis. Id. ¶ 14. Moreover, this language—like that in
¶ 46 n.14, addressed a statutory right of review that we found
“equivalent in scope to our traditional judicial test for standing.”
Morra, 2010 UT 21, ¶ 15 (citation omitted). We therefore did not
grapple in any of these cases with the question presented here—
whether traditional standing may cure a lack of statutory standing
where the petitioner seeks a statutory remedy.
14 Because Cedar Mountain featured a statutory right of review
that was coextensive with the traditional standing test, “we
rel[ied] on traditional standing case law to interpret the statutory
requirement.” See Cedar Mountain Env’t, Inc. v. Tooele Cnty. ex rel.
Tooele Cnty. Comm’n, 2009 UT 48, ¶ 9, 214 P.3d 95.
15
MCKITRICK V. GIBSON
Opinion of the Court
Cedar Mountain—is dicta, because we found all three types of
standing lacking. See id. ¶¶ 5–28.
¶48 The facts in In re Questar Gas Co.—in which we implicitly
recognized the principle that statutory standing is mandatory for
statutory claims—are more apposite to the facts here. 2007 UT 79,
175 P.3d 545. In In re Questar, we dismissed a petition for judicial
review of an agency decision for lack of statutory standing even
though the dismissed petitioners would have satisfied the test for
traditional standing. Id. ¶ 57 (“[A]lthough [petitioners] are
‘aggrieved’ by the increase to their gas bill resulting from the
[agency’s] decision, they lack appellate standing because they . . .
do not fall within the classes of persons to whom standing is
granted [under the statute].”). And we now make explicit what In
re Questar Gas made implicit: traditional or alternative standing
cannot excuse a lack of statutory standing where the petitioner is
a statutory claimant. In other words,
If a plaintiff is asserting a statutory claim[,] the
constitutional standing question arises if and only if
the plaintiff has statutory standing. If the plaintiff is
not within the class of parties that the legislature has
authorized to file suit, it does not matter whether
that plaintiff could identify some sort of “distinct
and palpable injury” or a basis for “public interest”
standing.
Haik, 2018 UT 39, ¶ 41 (Lee, A.C.J., concurring in part and
concurring in the judgment).
¶49 Accordingly, because GRAMA does not grant standing to
Gibson, he cannot proceed under that statute.
CONCLUSION
¶50 We hold that a statutory claimant may not overcome a
lack of statutory standing by satisfying the elements of some other
doctrine of standing. Here, Gibson lacks standing under GRAMA
to seek judicial review of the Review Board’s decision to disclose
Ogden City’s records to McKitrick. And because he lacks standing
under the plain language of the statute under which he is a
claimant, Gibson may not proceed on traditional or alternative
standing grounds. We therefore reverse the order of the district
court denying McKitrick’s motion to dismiss and remand for the
dismissal of Gibson’s petition.
16