Cox v. Laycock ( 2015 )

This opinion is subject to revision before
publication in the Pacific Reporter
2015 UT 20
IN THE
SUPREME COURT OF THE STATE OF UTAH
SPENCER J. COX, in his official capacity as
Lieutenant Governor for the State of Utah,
Petitioner,
v.
THE HONORABLE CLAUDIA LAYCOCK, in her official capacity
as District Court Judge in the Fourth Judicial District,
Millard County, State of Utah,
Respondent.
JIM DYER, STEVE MAXFIELD, T.J. LOVATO, SCOTT BLACKBURN,
RUSSELL JONES, WENDY LEATHUM, and TODD MACFARLANE,
Third-Party Cross-Petitioners,
v.
NORMA BRUNSON, in her official capacity as Millard County Clerk;
THE HONORABLE CLAUDIA LAYCOCK, in her official capacity as
District Court Judge in the Fourth Judicial District, Millard
County, State of Utah; and SPENCER J. COX, in his official capacity
as Lieutenant Governor for the State of Utah,
Third-Party Cross-Respondents.
No. 20140764
Filed January 30, 2015
Fourth District, Fillmore Dep’t
The Honorable Claudia Laycock
No. 140700025
Attorneys:
Sean D. Reyes, Att’y Gen., Thom D. Roberts, Asst. Att’y Gen.,
Salt Lake City, for petitioner
Brent M. Johnson, Salt Lake City, for respondent
Steven Maxfield, Kanosh, Utah, for real party in interest pro se
COX v. LAYCOCK
A.C.J. NEHRING, opinion of the Court except Part II
Dwight G. Beckstrand, Kanosh, Utah, for real party in interest
Jim Dyer
Kathleen M. Liuzzi, Salt Lake City, for real party in interest
James I. Withers
Todd MacFarlane, Kanosh, Utah, for real parties in interest
T.J. Lovato, Russell Jones, Wendy Leathum,
Scott Blackburn, Todd MacFarlane
Richard Waddingham, Delta, Utah, for real party in interest
Millard County
ASSOCIATE CHIEF JUSTICE NEHRING authored the opinion of the
Court with respect to Parts I, IV, and VI, in which CHIEF JUSTICE
DURRANT, JUSTICE DURHAM, JUSTICE PARRISH, and JUSTICE LEE
joined, and the opinion of the Court with respect to Part V, in
which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, and JUSTICE
PARRISH joined, and the opinion of the Court with respect to
Part III, in which JUSTICE DURHAM and JUSTICE PARRISH joined.
ASSOCIATE CHIEF JUSTICE NEHRING authored a dissent with
respect to Part II, in which JUSTICE PARRISH joined.
JUSTICE LEE authored the opinion of the Court with respect
to Part II of his opinion, in which CHIEF JUSTICE DURRANT
and JUSTICE DURHAM joined, an opinion dissenting in
part with respect to Part I of his opinion, in which
CHIEF JUSTICE DURRANT joined, and an opinion
concurring in part with respect to Part III of his opinion.
ASSOCIATE CHIEF JUSTICE NEHRING, opinion of the Court:
INTRODUCTION
¶ 1 This matter comes before us by a petition for
extraordinary writ filed by Utah Lieutenant Governor Spencer
Cox regarding the Republican primary election for Millard
County Commissioner Seat A. The lieutenant governor
challenges an August 14, 2014 district court order that set aside
the election and ordered the Millard County Clerk to hold a new
election as soon as possible.
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A.C.J. NEHRING, opinion of the Court except Part II
¶ 2 In an order issued September 5, 2014, we granted the
lieutenant governor’s petition and affirmed in part and vacated in
part the district court’s order. We affirmed that portion of the
order that set aside the election. However, we vacated the part of
the district court order requiring the Millard County Clerk to hold
a new election. Recognizing that the election code does not
address the specific circumstances presented here, we concluded
that it was not the intent of the legislature that a political party be
without a candidate on the general election ballot when the
primary election has been set aside. We therefore looked to the
most analogous provisions of the Code to guide us. Utah Code
section 20A-1-501 supplies procedures for filling candidate
vacancies in various situations, and we ordered that the
Republican candidate be filled according to the procedures in
subsection (1)(c)(iii). We explain our order more fully here.
BACKGROUND
¶ 3 On June 24, 2014, Millard County held its Republican
primary election for the position of County Commissioner Seat A.
Mr. Dyer challenged Mr. Withers, the incumbent. According to
Mr. Dyer, the unofficial vote count on the evening of June 24,
2014, yielded 1,004 votes for Mr. Dyer and 1,003 votes for
Mr. Withers. The official canvass was conducted on July 1, 2014,
at which Mr. Dyer alleged the County Clerk’s office produced
additional ballots that had not previously been disclosed to the
candidates. The canvass tally resulted in 1,014 votes for
Mr. Withers and 1,009 votes for Mr. Dyer, and Mr. Withers was
declared the winner.
¶ 4 On July 7, 2014, Mr. Dyer requested an official recount
under Utah Code section 20A-4-401, specifically challenging nine
ballots as well as all provisional ballots because they had not been
disclosed to him until after the official canvass. County Clerk
Brunson conducted the recount on July 15, 2014. She certified the
results of the recount as 1,014 votes for Mr. Withers and 1,009
votes for Mr. Dyer.
¶ 5 The county commissioners met the same day to sit as the
official canvassing board. Mr. Withers sat on the canvassing
board in his official capacity as a county commissioner. The
board discussed the recount, heard Mr. Dyer’s arguments, and
took public comments. In the end, the three-member canvassing
board voted to certify the clerk’s count and declared Mr. Withers
the winner.
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¶ 6 On July 16, 2014, Mr. Dyer together with concerned
voters T.J. Lovato, Russell Jones, and Wendy Leathum
(collectively, Voters) 1 filed a petition under Utah Code sections
20A-4-402 and 20A-4-403 contesting the results of the election.
The petition named Mr. Withers, in his capacity as a candidate, as
the sole respondent. The petition specifically challenged twenty-
one votes: three absentee ballots, two voter forms, one potentially
non-Republican voter, ten provisional ballots, four ballot
affidavits, and one voter prevented from voting.
¶ 7 On August 1, 2014, the district court held a hearing on
the matter in which Mr. Dyer, the Voters, and Mr. Withers were
present and represented by counsel. Millard County Clerk
Brunson also appeared as a witness.
¶ 8 The district court issued its Memorandum Decision,
Ruling, and Order on August 14, 2014. At the outset, the court
noted that “petitioners had probably filed this case against the
wrong respondent.” Nonetheless, the court heard and ruled on
the case because neither party raised the issue of improper parties.
The court discussed each of Mr. Dyer’s allegations in turn and
ultimately concluded that “the validity of this election cannot be
established.” The court determined that at least seven ballots
were incorrectly counted and one voter was prevented from
legally voting; therefore, because only five votes separated the
candidates, the eight votes in question were sufficient to grant
relief. The court explained that it could not determine for whom
those illegal votes had been cast, and thus could not ascertain
which candidate received the highest number of votes in order to
declare a winner. Instead, the district court set aside the election
results and ordered the county clerk to organize a new election
immediately. Neither party appealed the district court’s order.
¶ 9 On August 26, 2014, the lieutenant governor filed a
petition for extraordinary writ with this court challenging the
district court order. The lieutenant governor petitions this court
because he asserts that, as chief elections officer for the state of
Utah, he “is substantially impacted by” the district court order.
And because he was not named as a party below and cannot
appeal the order, he therefore contends that he has no other plain,
1 Additional voters Scott Blackburn, Todd Macfarlane, and
Steve Maxfield later joined the district court proceeding.
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speedy, and adequate remedy. The lieutenant governor seeks to
vacate the district court order and affirm the certified results of
the primary election.
¶ 10 The lieutenant governor raises three arguments in his
petition. First, he contends that the district court did not have
jurisdiction to adjudicate Mr. Dyer’s petition due to a lack of
standing. Second, the lieutenant governor alleges that Mr. Dyer’s
challenge did not meet the statutory requirement for election
contests because the lieutenant governor reads the statute to
“require[] proof” of a different result “if you added or subtracted
the actual votes.” He asserts that because the district court could
not determine for whom the erroneous votes were cast, there is no
proof that the illegal votes would have changed the result. Thus,
in the absence of a final determination that Mr. Dyer would have
won, he argues that there can be no valid contest of the election
and the district court had no basis to issue its order. Third, the
lieutenant governor argues that the district court acted outside its
powers when it ordered the clerk’s office to hold a new election.
¶ 11 On September 3, 2014, Judge Laycock filed a response to
the lieutenant governor asking this court to affirm the district
court order. The response asserts that the district court had
jurisdiction below and that it properly set aside and ordered a
new election.
¶ 12 Mr. Dyer also filed a response and opposition to the
lieutenant governor as a real party in interest. Mr. Dyer argues
that he had standing because he was not required to name the
county clerk as a party to the action below. Additionally, he
asserts that the lieutenant governor is not an appropriate party to
file a writ in this matter because his role as chief election officer is
purely supervisory. He further argues that the lieutenant
governor’s filing of the petition amounts to improper advocacy on
the part of Mr. Withers’s candidacy.
¶ 13 Millard County and the Millard County Clerk also
entered the fray, agreeing with the lieutenant governor’s petition
that the district court acted beyond its statutory authority in
ordering the new election. The county and county clerk also
noted that the clerk’s office considered options for holding a new
election, but that it “could not comply with the statutory
deadlines imposed by Utah law.”
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¶ 14 Finally, in addition to responding to the lieutenant
governor, the Voters, acting through counsel or pro se, submitted
a third-party cross-petition. They requested that this court affirm
the district court’s order to set aside the primary election, but
alternatively requested that both candidates be included on the
November general election ballot as unaffiliated candidates, even
if that requires “suspend[ing] or modif[ying]” the statute “as
necessary.”
¶ 15 We have jurisdiction under Utah Code section 78A-3-
102(2).
STANDARD OF REVIEW
¶ 16 This matter is before us by petition for extraordinary
writ under Utah Rule of Civil Procedure 65B. The granting of
relief is discretionary, and “[u]nlike a party filing a direct appeal,
a petitioner seeking rule 65B(d) extraordinary relief has no right to
receive a remedy that corrects a lower court’s mishandling of a
particular case.” 2 “The question of whether to grant a petition for
extraordinary relief lies within the sound discretion of this
court.” 3
¶ 17 Rule 65B provides for the scope of review when, as here,
wrongful use of judicial authority is alleged: “[T]he court’s review
shall not extend further than to determine whether the respondent
has regularly pursued its authority.”4 We have held that “[a]
court wrongfully uses its judicial authority when it abuses its
discretion.” 5 When the issue before the court involves statutory
interpretation, “a mistake of law may constitute an abuse of
discretion.” 6 However, even where a mistake of law or abuse of
discretion is found, this court nonetheless retains discretion
2 State v. Barrett, 2005 UT 88, ¶ 23, 127 P.3d 682.
3 Snow, Christensen & Martineau v. Lindberg, 2013 UT 15, ¶ 22,
299 P.3d 1058.
4 UTAH R. CIV. P. 65B(d)(4).
5 Snow, Christensen & Martineau, 2013 UT 15, ¶ 21.
6 Barrett, 2005 UT 88, ¶ 26.
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whether to grant the relief requested. 7 Thus, we have explained
that “a court must look to the nature of the relief sought, the
circumstances alleged in the petition, and the purpose of the type
of writ sought in deciding whether to grant extraordinary relief.”8
Therefore, we review the district court order for abuse of
discretion, retaining our discretion to grant any relief.
ANALYSIS
¶ 18 We first consider whether to grant the lieutenant
governor’s petition for extraordinary writ challenging the district
court order. We conclude that the lieutenant governor had no
other plain, speedy, and adequate remedy, and we therefore grant
the petition. Next, a majority of this court holds that the district
court order annulling and setting aside the election could not be
challenged following the expiration of the ten-day statutory
appeal deadline; that portion of the order is therefore affirmed.
However, we determine that the district court exceeded its
authority when it ordered a new election. Such an order
constitutes an abuse of discretion, and we vacate that part of the
order. However, we recognize that the Utah Code does not
prescribe procedures to fill a candidate vacancy when a primary
election is annulled and set aside. We conclude that it could not
have been the intent of the legislature to leave the candidacy
vacant, and we therefore look to the most analogous provisions in
the election code to ascertain how the legislature intended the
current situation to be resolved. We conclude that the procedures
for filling a candidate vacancy under Utah Code section 20A-1-501
provide useful guidance. On that basis, we order the Republican
candidacy be filled according to its provisions. Finally, we deny
the third-party cross-petition because an alternative remedy is
available in the form of an appeal, where cross-petitioners were
parties to the proceedings below.
7 Id. ¶ 23 (“[A] party petitioning for rule 65B(d) extraordinary
relief is not entitled to receive relief, even if that party successfully
establishes that a lower court abused its discretion . . . .”).
8 Id. ¶ 11 (internal quotation marks omitted).
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I. WE GRANT THE LIEUTENANT GOVERNOR’S
PETITION FOR EXTRAORDINARY WRIT
¶ 19 Rule 65B permits a person to petition this court for relief
based on several enumerated grounds if “no other plain, speedy
and adequate remedy is available.” Whether to grant the petition
is a threshold question in this case and the determination “lies
within the sound discretion of this court.” 9 In determining
whether to grant the petition, we look to several factors, including
“the egregiousness of the alleged error, the significance of the
legal issue presented by the petition, the severity of the
consequences occasioned by the alleged error, and any additional
factors that may be regarded as important to the case’s
outcome.” 10
¶ 20 We conclude that the lieutenant governor had no other
plain, speedy, and adequate remedy, and we therefore grant the
petition. The lieutenant governor seeks relief under Utah Rule of
Civil Procedure 65B(d)(2)(A) where “an inferior court . . . has
exceeded its jurisdiction or abused its discretion.” As the state’s
chief elections officer, the lieutenant governor has an interest in
the election contest, even if his authority over a county primary
election is only supervisory. Because he was not a party to the
action below, the lieutenant governor could not appeal the district
court’s decision 11 and therefore did not have another plain,
9 Snow, Christensen & Martineau v. Lindberg, 2013 UT 15, ¶ 22,
299 P.3d 1058.
10 Fundamentalist Church of Jesus Christ of Latter-Day Saints v.
Lindberg, 2010 UT 51, ¶ 24, 238 P.3d 1054 (internal quotation
marks omitted).
11 See Utah Down Syndrome Found., Inc. v. Utah Down Syndrome
Ass’n, 2012 UT 86, ¶¶ 9–10, 293 P.3d 241 (holding that nonparties
cannot appeal a court order). Moreover, the lieutenant governor
could not appeal the district court decision even if the parties
below did not object because “acquiescence of the parties is
insufficient to confer jurisdiction on the court.” Bradbury v.
Valencia, 2000 UT 50, ¶ 8, 5 P.3d 649 (internal quotation marks
omitted).
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speedy, and adequate remedy. 12 Moreover, we do not find that
the lieutenant governor’s decision not to intervene in the case
below forecloses his petition for relief. 13 We have recognized that
where parties are not necessary, they may make tactical decisions
not to intervene.14 Furthermore, given the significance of the legal
issues presented and the necessity of prompt resolution in
advance of the general election, 15 we conclude that a petition for
extraordinary writ should be granted. Having granted the
petition, we turn to the merits of the lieutenant governor’s
arguments.
II. STATUTORY APPEAL DEADLINE
¶ 21 I disagree with this court’s holding that the district court
order to annul and set aside the election “became unassailable
when no appeal was taken by the parties” within the ten-day
deadline set by statute.16 I would therefore reach the merits of the
lieutenant governor’s arguments on that issue.
¶ 22 The Utah Constitution grants this court “original
jurisdiction to issue all extraordinary writs,” 17 and we may issue
the writ when “no other plain, speedy and adequate remedy is
12 See Snow, Christensen & Martineau, 2013 UT 15, ¶ 24 (“[W]hen
an individual who is not a party to a district court proceeding is
adversely affected by an order or judgment, the procedural
mechanism for challenging the district court’s action is through a
petition for extraordinary writ.”).
13Krejci v. City of Saratoga Springs, 2013 UT 74, ¶ 12, 322 P.3d
662 (refusing to adopt a rule requiring “intervention as a
prerequisite to the filing of a petition for extraordinary writ”).
14 Id. ¶ 18 (recognizing that “petitioners’ decision to sit on the
sidelines [during district court proceedings] was both strategically
and economically defensible”).
15 Id. ¶ 20 (noting that petitioner could have filed a separate
suit in district court regarding a ballot referendum but given “the
need to seek relief occurred so shortly before the ballot decision
would have to be made, a new proceeding in the district court
was not a ‘speedy’ or ‘adequate’ remedy”).
16 Infra ¶¶ 60–66.
17 UTAH CONST. art. VIII, § 3.
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available.” 18 Thus, we will only issue a writ in exceptional
circumstances, balancing due deference to the legislature with our
constitutional prerogative. For example, in Renn v. Utah State
Board of Pardons, this court permitted a defendant to challenge a
decision by the Board of Pardons through an extraordinary writ
even though the legislature had insulated Board decisions from
judicial review. 19 We allowed the challenge because “where there
is a gross and flagrant abuse of discretion and fundamental
principles of fairness are flouted, a court may, giving appropriate
deference to legislative policy[,] . . . intervene to correct such
abuses by means of an appropriate extraordinary writ.” 20 In my
view, the lieutenant governor has alleged just such an abuse,
claiming that the district court erroneously denied Mr. Withers his
candidacy and citizens their right to vote. As Utah’s chief election
official, the lieutenant governor had an interest in the outcome of
the case. But because he was not a party below, the only remedy
available to him was through a writ. I believe this situation rises
to the level of the sort of exceptional circumstance that an
extraordinary writ was meant to address.
¶ 23 Therefore, I would conclude that the lieutenant
governor’s request was not foreclosed by the statutory language
declaring the office vacant at the close of the parties’ ten-day
appeal deadline. Certainly election contests represent a unique
form of litigation due, in part, to their time-sensitive nature. It is
presumably for this reason that the legislature provided the brief
ten-day window for the parties to appeal an election decision. But
the issuing of a writ is an equitable power derived from our duty
to prevent a “flagrant abuse of discretion.” 21 To declare the
district court’s decision insulated from review curtails our
constitutional power and deprives the lieutenant governor of the
only remedy available to him. I also note concern about possible
18 UTAH R. CIV. P. 65B(a).
19 904 P.2d 677, 683–84 (Utah 1995).
20 Id.; see State v. Barrett, 2005 UT 88, ¶ 19, 127 P.3d 682
(recognizing that in Renn “we relied upon this court’s
constitutional authority to issue extraordinary writs” even though
“the statute foreclos[ed] judicial review”).
21 Renn, 904 P.2d at 683.
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due process implications for individuals whose interests may be
affected because they were not made parties to the action and may
not have had notice or a meaningful opportunity to be heard. We
have extolled “the practical utility of the flexibility of
extraordinary writs in various circumstances,” 22 and I believe
such flexibility is warranted here.
¶ 24 I would instead evaluate the lieutenant governor’s
request under the equitable doctrine of laches. We have explained
that under rule 65B “there is no fixed limitation period governing
the time for filing” extraordinary writs.23 However, we cautioned
that a writ “should be filed within a reasonable time after the act
complained of has been done or refused” because “the equitable
doctrine of laches is available to dismiss untimely writs.” 24 I
believe that in filing his petition on August 26—twelve days after
the district court’s order—the lieutenant governor acted within a
reasonable time. Under the doctrine of laches, we look to a
party’s lack of diligence and the resulting injury. 25 I cannot say
that the lieutenant governor acted without diligence when he
submitted his petition less than two weeks after the district court
order, particularly given that he was not a party to the action
below and may not have had notice of the election contest. I
therefore would conclude that the lieutenant governor could
challenge the district court order to annul and set aside the
election, and I would reach the merits of that claim.
III. THE DISTRICT COURT ORDER SETTING
ASIDE THE ELECTION WAS PROPER
¶ 25 The lieutenant governor asserts, and the dissent agrees, 26
that Mr. Dyer did not satisfy the statutory requirements for an
election contest. The lieutenant governor argues that a court
“cannot sustain an election contest unless it determines who the
individual votes were for and how their addition or subtraction
22 Id. at 684.
23 Id.
24 Id.
25 Fundamentalist Church of Jesus Christ of Latter-Day Saints v.
Lindberg, 2010 UT 51, ¶ 27, 238 P.3d 1054.
26 Infra ¶¶ 51–59.
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from the vote totals of the candidates would change the result.”
We do not agree with this interpretation of the statute’s election
contest procedures. We hold that Mr. Dyer satisfied the
requirements of the statute, and that the district court properly
annulled and set aside the election.
A. Mr. Dyer and the Voters Could Properly
Sustain Their Election Contest
¶ 26 The lieutenant governor claims that Mr. Dyer did not
satisfy the requirements of the election contest statute. He bases
his argument on a reading of Utah Code section 20A-4-402, which
provides the grounds upon which a contest may be brought. Mr.
Dyer and the Voters base their challenge on the following
statutory grounds:
(1) The . . . nomination of any person to any public
office . . . may be contested according to the
procedures established in this part only:
(a) for malconduct, fraud, or corruption on the
part of the judges of election at any polling
place, or of any board of canvassers, or any
judge or member of the board sufficient to change
the result;
....
(d) when illegal votes have been received or
legal votes have been rejected at the polls
sufficient to change the result;
(e) for any error of any board of canvassers or
judges of election in counting the votes or
declaring the result of the election, if the error
would change the result;
....
(f) when the election result would change because a
sufficient number of ballots containing
uncorrected errors or omissions have been
received at the polls;
....
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(h) when an election judge or clerk was a party
to malconduct, fraud, or corruption sufficient to
change the result of the election . . . . 27
The lieutenant governor reads this provision to “require[] proof
that the result would have been different if you added or
subtracted the actual votes.” We disagree. The statutory
condition that the alleged malconduct, errors, or illegal voting be
“sufficient to change the result” acts as a threshold materiality
requirement. Ostensibly, the legislature believed that an election
contest that cannot possibly lead to a different result does not
warrant the time and attention of the court. By way of example,
consider an election resulting in a 100-vote margin between two
candidates. If the defeated candidate brought a challenge alleging
that forty illegal votes had been counted, such a challenge, even if
proven, could not impact the final result. It would not merit
review by a court, and thus the legislature likely sought to
prevent such immaterial contests. In contrast, when a challenger
alleges errors that could actually change the result, the court’s
review is warranted.
¶ 27 The lieutenant governor’s interpretation of the statute
would foreclose a challenge any time the ballots could not be
opened, reviewed, and recounted.28 Under this approach, even in
27 UTAH CODE § 20A-4-402 (emphases added).
28 At oral argument, counsel for the lieutenant governor
argued that a court could determine for whom a particular
individual voted through voluntary testimony by the voter or by
looking to circumstantial evidence such as party affiliation or
whether a voter put signs for a particular candidate in his front
yard. Because we disagree with the lieutenant governor’s
statutory interpretation, we do not reach this issue. However, we
express great suspicion that these types of circumstantial evidence
could properly be relied upon to determine the outcome of an
election. See 29 C.J.S. Elections § 480 (“As a general rule, a legal
voter cannot be compelled to disclose for whom he or she
voted.”); see also Helm v. State Election Bd., 589 P.2d 224, 229 (Okla.
1979) (“There can be no doubt that where paper ballots are
concerned, the testimony of voters as to how they voted is not
competent.”). But see In re Petition to Contest the Gen. Election for
Dist. Justice in Judicial Dist. 36-3-03 Nunc Pro Tunc, 670 A.2d 629,
(con’t.)
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circumstances where there is wide-scale or egregious conduct (for
example, intentional burning of ballot boxes), a defeated
challenger may have no recourse because the votes could not be
counted. We elect to take a more sensible approach—an approach
that comports with the statute’s plain language. We hold that a
contest may move forward under section 20A-4-402(a), (d), (e), (f),
or (h) where a candidate challenges enough votes to meet or
exceed the margin of victory.
¶ 28 Additionally, this approach does not open the floodgates
to election contests. Challengers remain bound by our civil
pleading standards. 29 Additionally, the election code itself
provides a heightened pleading requirement. Section 20A-4-
403(2) sets forth filing procedures for a petition to contest an
primary election. Where, as here, illegal voting is alleged, the
candidate must provide the name and address of each person
whose vote he intends to contest at trial. 30 If a voter is not
included on the petition list, the challenger forfeits his right to
contest that vote.31 This requirement provides a significant hurdle
to prevent individuals from indiscriminately challenging elections
without evidence of wrongdoing or errors.
¶ 29 Moreover, even with carefully prescribed instructions
for election contests, the statute nowhere requires a challenger to
state for whom each disputed vote was cast. 32 The lieutenant
governor cites section 20A-4-403(2)(c) as evidence that the votes
must be capable of a final accounting. This section provides that
when challenging illegal votes or rejected legal votes, “it is
sufficient to state generally” that illegal votes were given to the
declared winner or legal votes were denied another candidate
such that the final tally of legal votes would yield a different
638–39 (Pa. 1996) (allowing voluntary testimony of voters as
evidence of how they originally voted).
29 See UTAH R. CIV. P. 8(a) (providing that a claim “shall contain
a short and plain: (1) statement of the claim showing that the
party is entitled to relief; and (2) demand for judgment for
specified relief”).
30 UTAH CODE § 20A-4-403(2)(b)(vii).
31 Id. § 20A-4-403(2)(d)(ii).
32 Id. § 20A-4-403.
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winner. 33 But, as explained above, that section merely sets forth
the general filing procedures. It does not speak to the ultimate
level of proof required for the contested votes. Section 20A-4-
403(2)(a) prescribes when and where the petition is to be filed,
subsection (b) details the required contents of the petition, and
subsection (c) provides the applicable pleading standard for the
petition. This pleading standard simply requires the challenger to
allege enough wrongly counted or wrongly rejected votes, which,
if proven, would yield a different victor than the person declared
elected. Moreover, the statute requires the challenger only to
“state generally” his allegations regarding the disputed vote
count. Thus, this language cannot be read to require the
challenger to submit definitive proof of the final election result. It
is enough to challenge the number of votes that would be
sufficient to change the result, even if that result cannot be
determined.
¶ 30 In sum, because Mr. Dyer challenged over twenty votes
as illegal in an election with a five-vote margin, we hold that he
met his pleading burden and his election contest was properly
before the district court.
B. The District Court Properly
Set Aside the Election
¶ 31 The lieutenant governor contends that the district court
had no authority to annul and set aside the election under the
grounds asserted by Mr. Dyer. He bases this conclusion on Utah
Code section 20A-4-402, which he reads to require a challenger to
prove the candidate who would have received each contested
vote. Because we do not agree with his interpretation of that
provision, 34 we decline to adopt his limitation of the remedies
available under section 20A-4-404.
¶ 32 Section 20A-4-404(4)(c) sets forth the remedies available
in an election contest:
(c)(i) After all the evidence in the contest is
submitted, the court shall enter its judgment, either
confirming the election result or annulling and
setting aside the election.
33 Id. § 20A-4-403(2)(c).
34 See supra Part III.A.
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(ii) If the court determines that a person other than
the one declared elected received the highest
number of legal votes, the court shall declare that
person elected.
Thus, under this provision, a court may confirm the election
results, annul and set aside the election, or declare a winner if one
can be determined. The lieutenant governor contends that these
remedies cannot be provided in all circumstances, but that they
correspond to two different types of election contests under
section 20A-4-402(1): (a) grounds that render the candidate
ineligible 35 and (b) grounds that votes were improperly received,
rejected, or counted. 36 He argues that annulling and setting aside
an election is appropriate only when the candidate has been ruled
ineligible. In contrast, when the grounds relate to illegal votes, he
argues that the court is statutorily mandated to declare a winner.
This reading is based on the lieutenant governor’s interpretation
of section 20A-4-402. Under his view, when there is a challenge
based on illegal votes, the court must be able to determine for
whom each disputed vote was cast because it must know whether
the challenge is sufficient to change the election result. He argues
that, given that premise, the court must necessarily be able to
determine a winner and thus, under section 20A-4-404(4)(c)(ii), is
mandated to “declare that person elected.”
¶ 33 We conclude that the statute does not so constrain the
courts. As explained above, we read the statute to permit an
election contest even if the contested votes cannot ultimately be
counted, as when ballots are lost or destroyed. But neither the
plain language of the text nor the structure of the provisions
suggests that the statutory remedies correspond to only certain
types of challenges. The legislature has empowered district courts
to review evidence in a variety of election circumstances and
either confirm the result or annul and set aside the election. The
court must declare a winner, but only if a winner can be
determined. 37 Thus, on its face, the statute contemplates a
situation in which the court will be unable to determine a winner.
35 UTAH CODE § 20A-4-402(1)(b), (c), and (g).
36 Id. § 20A-4-402(1)(a), (d), (e), (f), and (h).
37 Id. § 20A-4-404(4)(c)(ii).
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The court need not confirm an election result when it finds illegal
voting has occurred but cannot count the votes.
¶ 34 The statutory structure also reinforces this
understanding. The legislature did not divide the grounds into
38
separate categories and specifically assign remedies based on their
type. And there is no limiting language that suggests certain
remedies apply only to specific contests. Rather, the structure of
the statute—one provision setting forth the contest grounds
(section 20A-4-402) and one provision for available dispositions
(section 20A-4-404)—indicates the intent that all remedies be
available regardless of the contest ground asserted.
¶ 35 In the present case, the district court considered the
contested votes individually and determined that seven had been
illegally cast and one legal voter had been prevented from voting.
The court did not go on to consider the additional ballots that had
been contested because it found that eight illegal votes in a five-
vote-margin election were enough to warrant setting aside the
election results. It also concluded that a winner could not be
determined due to the mishandling of the contested ballots.
Therefore, the district court was not bound to declare a winner in
such circumstances.
IV. THE DISTRICT COURT ORDER MANDATING A
NEW ELECTION CONTRADICTS EXPRESS
STATUTORY LANGUAGE
¶ 36 We next consider that part of the district court order
mandating the Millard County Clerk to hold a new primary
election. Because we conclude the district court acted in
contravention of the statute, we find that the court abused its
discretion and reverse that portion of the order.
¶ 37 The lieutenant governor challenges the district court’s
order to hold a new election because he argues that the statutory
language does not authorize a court to order a special election.
In its response to the lieutenant governor’s petition, the district
38 See Hi-Country Prop. Rights Grp. v. Emmer, 2013 UT 33, ¶¶ 23–
28, 304 P.3d 851 (looking to the “structure and context” of the
statute to determine its meaning); State v. Smith, 2005 UT 57,
¶¶ 11, 13, 122 P.3d 615 (confirming the meaning of a statute based
on its “plain language and structure”).
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court acknowledged that the “election statutes seemingly do not
answer the question of what should or must happen once an
election is set aside. The statutes do not provide a remedy beyond
the election being invalidated.” The court asserted, therefore, that
absent further court action, both the candidates and the voters of
Millard County would be left without an adequate remedy.
Citing the court’s equitable power, the district court explained
that it ordered a new election as a means to provide relief to all
parties.
¶ 38 Utah Code section 20A-4-404 sets forth the means of
disposition for an election contest. After reviewing all the
evidence, the court may confirm the election result, annul and set
aside the election, or, if it is possible, declare another person the
winner. 39 The statute nowhere authorizes the court to order a
new election. Additionally, in the provision governing appeals of
an election contest decision, the Utah Code provides that
“[w]henever an election is annulled or set aside by the judgment
of a court and no appeal is taken within 10 days, the certificate of
election, if any has been issued, is void, and the office is vacant.”40
Moreover, the circumstances for authorizing a special election are
expressly limited and do not encompass the situation presented
here. 41
¶ 39 Recognizing that the district court sought to fashion the
most appropriate remedy given the circumstances, we
nonetheless hold that by ordering the new election the district
court contravened the dictates of the election code. This mistake
of law constituted an abuse of discretion warranting
extraordinary relief; we therefore reverse that part of the district
court order.
39 UTAH CODE § 20A-4-404(4)(c).
40 Id. § 20A-4-406(2).
41 See id. § 20A-1-203(5)(a) (providing that a local legislative
body may call a special election “only for” certain enumerated
circumstances).
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V. IN THE ABSENCE OF CLEAR STATUTORY
DIRECTION, WE LOOK TO ANALOGOUS
PROVISIONS TO CARRY OUT THE
INTENT OF THE LEGISLATURE
¶ 40 Having affirmed annulment of the election, our task is
not complete. We have repeatedly asserted that “this Court’s
primary responsibility in construing legislative enactments is to
give effect to the Legislature’s underlying intent.” 42 Our duty is
directed by the statute’s “plain language, in light of the purpose
the statute was meant to achieve.” 43 And “[w]hen the plain
meaning of the statute can be discerned from its language, no
other interpretive tools are needed.” 44
¶ 41 This case, however, does not present a situation of vague
or ambiguous statutory language. Instead, the Code is silent
regarding these circumstances. There is no provision in the
election code that describes how to fill a candidate vacancy in the
case of an annulled primary election, 45 and the limited grounds
under which a special election can be held do not apply here.46
We conclude, however, that the legislature did not intend the
vacancy resulting from an annulled primary to continue in
perpetuity. We therefore look to analogous provisions within the
election code to carry out the legislature’s intent.
¶ 42 From the outset, we emphasize that we do not undertake
such an endeavor lightly. Our task is to seek the intent of the
legislature, not to substitute our own wisdom in its stead. 47 To
42 W. Jordan v. Morrison, 656 P.2d 445, 446 (Utah 1982).
43J.M.W. v. T.I.Z. (In re Adoption of Baby E.Z.), 2011 UT 38, ¶ 15,
266 P.3d 702 (internal quotation marks omitted).
44 LPI Servs. v. McGee, 2009 UT 41, ¶ 11, 215 P.3d 135.
45See UTAH CODE § 20A-1-501 (providing procedures to fill
candidate vacancies); id. § 20A-1-508 (midterm vacancies).
46 See id. § 20A-1-203(5).
47 Eames v. Bd. of Comm’rs, 199 P. 970, 972 (Utah 1921) (“It is the
duty of this court, according to its best knowledge and
understanding, to declare the law as it finds it, and determine the
intent and purpose thereof from the language used by the
Legislature in expressing such purpose and intention.”).
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that end, when a statute is silent regarding particular
circumstances and we determine that such a gap was not the
intent of the legislature, “we must determine the best rule of law
to ensure that the statute is applied uniformly.” 48 We “analyze
the act in its entirety and harmonize its provisions in accordance
with the legislative intent and purpose.” 49
¶ 43 Section 20A-1-501 of the election code provides
procedures for filling candidate vacancies before a general
election. While it does not address the specific circumstances
here, it presents the closest analogy to it and is therefore
instructive. Under certain circumstances, for most local positions,
“the county central committee of a political party . . . may certify
48 Mariemont Corp. v. White City Water Improvement Dist., 958
P.2d 222, 226 (Utah 1998); see also Fausnight v. Perkins, 994 So. 2d
912, 922 (Ala. 2008) (See, J., concurring) (“When a statute is silent,
this Court will look outside of the plain language of the statute to
determine the intent of the legislature.”); State v. Mootz, 808
N.W.2d 207, 221 (Iowa 2012) (“When the statutory language is
silent, legislative intent can be gleaned from the purposes and
underlying policies of the statute, along with the consequences of
various interpretations.”); Anderson v. Ochsner Health Sys., 2013-
2970, p. 3 (La. 7/1/14) ___ So. 3d ___ (“[B]ecause the statute is
silent . . . , the court, in interpreting the statute, is tasked with
determining the legislative intent.”); Griffin v. Griffin, 92 A.3d
1144, 1149 (Me. 2014) (“If the statutory language . . . is silent on a
particular point, we will then consider other indicia of legislative
intent including the purpose of the statute.” (internal quotation
marks omitted)); Miss. Methodist Hosp. & Rehab. Ctr. v. Miss. Div. of
Medicaid, 21 So. 3d 600, 607 (Miss. 2009) (“[I]f a statute . . . is silent
on a specific issue[,] . . . . the ultimate goal of this Court is to
discern the legislative intent.” (citation omitted)); Ogborne v.
Mercer Cemetery Corp., 963 A.2d 828, 834 (N.J. 2009) (“In light of
the Act’s silence on the issue, we look to the underlying legislative
intent.”); Clarkston v. Bridge, 539 P.2d 1094, 1099 (Or. 1975) (“When
the legislature has not spoken on a particular issue which arises
under a statute, it is our duty to determine their probable
intent.”).
49Mariemont Corp., 958 P.2d at 225 (internal quotation marks
omitted).
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the name of another candidate to the appropriate election
officer.” 50 The statute then provides for three scenarios:
(a) replacement of a candidate before the primary election,
(b) replacement of a candidate who was certified without a
primary election, and (c) replacement of a candidate who won the
primary election.51 In each case, the party may select a
replacement candidate if the original candidate dies, resigns due
to a physical or mental disability, or is disqualified by an election
official for improper filing or nominating procedures. 52
¶ 44 Utah Code section 20A-1-501 does not address a
situation in which the result of a primary election is set aside. The
lieutenant governor contends that this silence means that the
party will simply be without a candidate on the general election
ballot. Although the statute is silent on this situation, we disagree
with the lieutenant governor’s interpretation of the statutory
scheme. Section 20A-1-501 provides a means for political parties
to submit a candidate in an emergency situation. The
circumstances provided for in the statute therefore reflect the
most common situations that would render a political party
without a candidate. Section 20A-1-501 also appears to strike a
balance between respecting voter decisions in primary elections
and ensuring that political parties can make necessary
substitutions. If replacements were permitted in all
circumstances, a political party could effectively overrule the
decision of its voters in the primary election and name its own
candidate. By allowing the party to submit a replacement
candidate only in rare circumstances, the legislature respects the
choice of voters. But where the party is left without a candidate
through no fault of its own, it should be able to substitute one.
¶ 45 The Code’s midterm vacancy protocols are instructive as
well. There, the legislature set forth various procedures for filling
a midterm vacancy depending on the timing of the vacancy.53 If
the vacancy arises well before the primary election, the procedure
parallels a regular election—a nominated party candidate or a
50 UTAH CODE § 20A-1-501(1).
51 Id.
52 Id.
53 Id. § 20A-1-508.
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qualified independent candidate can run in the general election.54
But if the vacancy arises closer to the date of the general election,
the procedures reflect the expedited timeline. 55 The statute even
permits a party to summarily place an individual in office for the
remainder of the unexpired term. 56 It would make little sense for
the legislature to so empower a political party for midterm
vacancies and yet leave the party unable to name its own
candidate for the general election ballot. If political parties can
“summarily certify” a candidate for the general election ballot
even before the primary election date, 57 it stands to reason that a
party may summarily certify a candidate when the primary itself
is annulled.
¶ 46 We therefore determine that the legislature did not
intend that a political party be entirely foreclosed from
nominating its candidate in advance of the general election when
the primary has been set aside through no fault of the party. We
conclude that section 20A-1-501(c)(iii) regarding candidacy
vacancies presents the closest analogy to the present situation and
thus order that the Republican candidate be certified according to
the procedures therein.
54 Id. § 20A-1-508(3).
55 See id. § 20A-1-508(4) (when a vacancy arises after April 9
but more than 75 days before the primary election, candidates
have five days to submit their names and the political party will
select among them); id. § 20A-1-508(5) (when a vacancy arises 75
days or less before the primary election but more than 65 days
before the general election, the political party “shall summarily
certify” a candidate for the general election ballot).
56Id. § 20A-1-508(6) (when a vacancy arises less than 65 days
before general election, the political party of the prior office
holder may submit an individual to serve the unexpired term).
57 Id. § 20A-1-508(5).
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VI. THE CROSS-PETITION FOR
EXTRAORDINARY RELIEF IS DENIED
AS PROCEDURALLY IMPROPER
¶ 47 The Voters also submitted a third-party cross-petition for
extraordinary relief, requesting this court to order that both
candidates be placed on the November general election ballot.
We deny the cross-petition as an improper means of petitioning
this court. As noted above, a petition for extraordinary writ is
appropriate only when “no other plain, speedy and adequate
remedy is available.” 58 When the petitioner is a party to the
action below and seeks alternate relief from the district court
order, there is an adequate remedy available—namely, an appeal.
Thus, “[b]efore we can address a petition for extraordinary relief,
the petitioning party must have exhaust[ed] all available avenues
of appeal.” 59 The purpose of this rule is to “keep litigants from
bypassing traditional avenues for judicial relief, or in other words
from substituting the extraordinary writ process for what should
have been ordinary litigation.”60
¶ 48 Cross-petitioners were all parties to the action below. As
such, they possessed a right of appeal from the district court
order. Should they seek relief contrary to that order, the
appropriate means is through an appeal, not through an
extraordinary writ to this court. 61 The cross-petition is therefore
denied.
58 UTAH R. CIV. P. 65B(a).
59 Friends of Great Salt Lake v. Utah Dep’t of Natural Res.,
2010 UT 20, ¶ 23, 230 P.3d 1014 (second alteration in original)
(internal quotation marks omitted); accord Krejci v. City of Saratoga
Springs, 2013 UT 74, ¶ 10, 322 P.3d 662 (“[W]here a petitioner had
an opportunity to file an appeal but failed to do so, it cannot use
an extraordinary writ to gain a second shot at an appeal.”).
60 Krejci, 2013 UT 74, ¶ 10.
61 See Friends of Great Salt Lake, 2010 UT 20, ¶ 23 (“[T]he
opportunity to appeal . . . constitutes a plain, speedy and
adequate remedy[;] . . . an extraordinary writ is not a proceeding
for general review.” (internal quotation marks omitted)).
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JUSTICE LEE, opinion of the Court in Part II
CONCLUSION
¶ 49 We grant the petition because the lieutenant governor
could not appeal the district court’s decision and did not have
another plain, speedy, and adequate remedy. We uphold the
district court order to annul and set aside the election. But we
determine that the court exceeded its statutory authority when it
ordered the county to hold a new election, and we therefore
vacate that part of the order. Instead, by looking to analogous
provisions within the election code, we determine that the
legislature did not intend for the party candidacy to sit vacant
before the general election. Thus, we ordered the candidacy to be
filled in accordance with the procedures found in Utah Code
section 20A-1-501. Finally, we deny the Voters’ cross-petition as
procedurally improper.
JUSTICE LEE, opinion of the Court in part:
¶ 50 I concur in the judgment of the court but write
separately to identify some points of disagreement with elements
of the court’s analysis. For reasons explained below, I would not
affirm the merits of the district court’s decision annulling and
setting aside the election in question under Utah Code section
20A-4-404(4)(c). See supra ¶ 25. Yet I would nonetheless affirm the
decision in question in light of Utah Code section 20A-4-406(2),
which “void[s]” a certificate of election in a case (like this one)
where “an election is annulled or set aside by the judgment of a
court and no appeal is taken within 10 days.” And finally, instead
of presuming knowledge of the “legislature’s intent” on a subject
not addressed expressly in the code, supra ¶ 41, I would employ
the doctrine of absurdity to deem the relevant statute, Utah Code
section 20A-1-501(1)(a), to be triggered by the statutory directive
“void[ing]” the primary election certificate.
I. PLEADING AND PROOF IN AN
ELECTION CONTEST
¶ 51 First, I disagree with the court’s conclusion that an
election contest can be sustained “even if the contested votes
cannot ultimately be counted, as when ballots are lost or
destroyed.” Supra ¶ 33. Under the governing statutory provisions
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as I understand them, it is the election contest petitioner’s burden
to plead and prove that any “illegal votes” that were cast would
have made a difference in the election. See UTAH CODE § 20A-4-
403(2)(c); id. § 20A-4-404(3), (4). And in light of that burden, I
would conclude that any uncertainty in contested ballots that
“cannot ultimately be counted” should be resolved against the
election contest petitioner.
¶ 52 That premise seems embedded in the operative terms of
the code. The code lists two categories of election contest claims:
(a) those in which the election contest petitioner must establish
that there were errors (in fraud, corruption, illegal votes counted,
legal votes not counted, etc.) “sufficient to change the result” of
the election 62 and (b) those that do not implicate the result of the
election, as where the person declared elected was ineligible for
office.63 The implication is clear. For the former category of
62 UTAH CODE § 20A-4-402(1)(a) (“for malconduct, fraud, or
corruption on the part of the judges of election . . . sufficient to
change the result”); id. § 20A-4-402(1)(d) (“when illegal votes have
been received or legal votes have been rejected at the polls
sufficient to change the result”); id. § 20A-4-402(1)(e) (“for any
error of any board of canvassers or judges of election in counting
the votes or declaring the result of the election, if the error would
change the result”); id. § 20A-4-402(1)(f) (“when the election result
would change because a sufficient number of ballots containing
uncorrected errors or omissions have been received at the polls”);
id. § 20A-4-402(1)(h) (“when an election judge or clerk was a party
to malconduct, fraud, or corruption sufficient to change the result
of the election”); id. § 20A-4-402(1)(i) (“for any other cause that
shows that another person was legally elected”).
63 Id. § 20A-4-402(1)(b) (“when the person declared elected was
not eligible for the office at the time of the election”); id. § 20A-4-
402(1)(c) (“when the person declared elected has: (i) given or
offered to any registered voter, judge, or canvasser of the election
any bribe or reward in money, property, or anything of value for
the purpose of influencing the election; or (ii) committed any
other offense against the elective franchise”); id. § 20A-4-402(1)(g)
(“when the candidate declared elected is ineligible to serve in the
office to which the candidate was elected”).
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JUSTICE LEE, opinion of the Court in Part II
election contest claims (including claims asserting that “illegal
votes have been received or legal votes have been rejected at the
polls”), the statute contemplates a showing of an impact
“sufficient to change the result” of the election. Id. § 20A-4-
402(1)(d).
¶ 53 The pleading provisions of the code reinforce this
conclusion. To assert a “cause of contest” in a case in which “the
reception of illegal votes” is the basis for challenging a primary
election, a petitioner must “state generally that . . . illegal votes
were given to a person whose election is contested, which, if taken
from him, would reduce the number of his legal votes below the
number of legal votes given to some other person for the same
office.” Id. § 20A-4-403(2)(c)(i). Alternatively, where the contest
involves “legal votes” that were “rejected,” a petitioner must
allege that “legal votes for another person were rejected, which, if
counted, would raise the number of legal votes for that person
above the number of legal votes cast for the person whose election
is contested.” Id. § 20A-4-403(2)(c)(ii). Thus, even at the pleading
stage, the petitioner’s burden is more than just to identify a
number of votes that would be sufficient to alter the outcome of
the election if all of the ballots in question were assumed to have
been cast for the “other person.” Instead, as to illegal votes, the
election contest petitioner must allege that “illegal votes were
given to a person whose election is contested” in a number that is
sufficient to “reduce the number of his legal votes below the
number of legal votes given to some other person for the same
office.” Id. § 20A-4-403(2)(c)(i). And, as to rejected legal votes, the
election contest petition must allege that such votes “for another
person were rejected,” and that such votes “if counted, would
raise the number of legal votes for that person above the number
of legal votes cast for the person whose election is contested.”
UTAH CODE § 20A-4-403(2)(c)(ii).
¶ 54 The election contest petitioner must accordingly do more
than “challenge[] enough votes to meet or exceed the margin of
victory.” Supra ¶ 27. He must instead make allegations that go to
the actual impact of alleged illegal votes on the outcome of the
election—as to illegal votes “given to a person whose election is
contested” that would “reduce the number of his legal votes
below the number of legal votes given” to the petitioning
candidate, or as to rejected legal votes “for” the petitioning
candidate that “would raise the number of legal votes for that
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person” above those cast for the person whose election is
contested. Id. § 20A-4-403(2)(c).
¶ 55 To me, this makes sense as a legal and logical matter. I
see no basis in law or logic to assume that all illegal ballots in
question (or rejected legal ballots) would have been cast in favor of
the candidate filing the election petition. And the contrary
presumption (in favor of the candidate whose election is
contested) is premised rather straightforwardly in the burden of
proof that the law has long assigned to a plaintiff or petitioner.
Indeed, resolution of matters unresolved by the evidence is a core
function of the burden of proof. One reason we assign a burden of
persuasion is as a tie-breaker—to give the benefit of the doubt to
the status quo, and to require the plaintiff or petitioner to rebut
the status quo with evidence. 64 The pleading provisions of the
election code appear to me to affirm this burden, by requiring an
election contest petitioner to do more than just identify “enough
votes to meet or exceed the margin of victory.” Supra ¶ 27.
¶ 56 The evidentiary standards in the code seem to me to
further undermine the majority’s approach. Under subsection
403(2)(d),
The court may not take or receive evidence of any
the votes described in Subsection (2)(c), unless the
party contesting the election delivers to the opposite
party, at least three days before the trial, a written
64 See, e.g., 21B CHARLES ALAN WRIGHT & KENNETH W.
GRAHAM, JR., FEDERAL PRACTICE & PROCEDURE: EVIDENCE § 5122, at
394 (2d ed. 2005) (explaining the policy underlying the burden of
proof by noting that “[u]nder the American system,” judges do
not “roam about the countryside like the Lone Ranger seeking
wrongs to right,” rather a party brings a dispute to the judge and
if that party were to “demand satisfaction from another, yet refuse
to provide any information about the dispute,” the judge will not
require the information of the opposing party because “the
opponent is not asking any favors of the court,” the judge will
“refuse[] to give the claimant the relief demanded where he has
failed to bring evidence to support his claim”).
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JUSTICE LEE, opinion of the Court in Part II
list of the number of contested votes and by whom
the contested votes were given or offered, which he
intends to prove at trial.
UTAH CODE § 20A-4-403(2)(d)(i). In addition, the same provision
clarifies that “[t]he court may not take or receive any evidence of
contested votes except those that are specified in that list.” Id.
§ 20A-4-403(2)(d)(ii). The focus here and elsewhere is on
“evidence of contested votes,” and on “prov[ing]” those votes “at
trial.” This runs counter to the idea of presuming that contested
votes would have been cast in favor of the petitioner (and against
the person whose election is contested). Clearly, the code
contemplates proof of the illegal votes, and by evidence presented
at trial.
¶ 57 Final confirmation of this conclusion appears in section
404. That section prescribes the procedures governing the court in
an actual election contest proceeding under the election code. It
indicates that the “court shall meet at the time and place
designated to determine the contest,” and, when “necessary for the
court to inspect the ballots of any voting precinct in order to
determine any election contest,” it directs the court to “open and
inspect the ballots in open court in the presence of the parties or
their attorneys.” Id. § 20A-4-404(2)–(3) (emphases added). Two
points stand out in these provisions. One is that the court is to
“determine the contest.” The other is that that determination is to
be made by “open[ing] and inspect[ing] the ballots in open court.”
This strikes me as incompatible with the majority’s notion of a
presumption in favor of the petitioner. Far from assuming that
“eight illegal votes in a five-vote-margin election [are] enough to
warrant setting aside the election results,” supra ¶ 35, the code
directs the court to consider the evidence before it to decide
whether the illegal votes are sufficient to change the results of the
election. And the code indicates the manner in which that
evidence is to be considered—by inspection of the ballots in
question, again to determine the proper resolution of the contest
in question.
¶ 58 It is no answer, in my view, to assert that in this case
“the contested votes cannot ultimately be counted.” Supra ¶ 33.
That proposition was adopted by the district court and endorsed
by the parties in the case before us on this petition for
extraordinary writ. See Mem. Decision 11–12 (concluding that the
court’s “choices are limited” because the court could not
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JUSTICE LEE, opinion of the Court in Part II
“determine who received the highest number of legal votes”);
Mem. Resp. & Opp. to Pet. 3 (noting that “because of how the
contested ballots had been handled—co-mingled with all the
other absentee ballots . . . — it would not be possible to identify
and find those ballots to determine how they had been cast”). The
premise, as far as I can tell, is that the contested ballots were
comingled with other ballots, in a manner rendering it impossible
for the district court to “open and inspect the ballots in open
court” in the course of “determin[ing] the contest.” See Mem.
Resp. & Opp. to Pet. 3. I have no basis for questioning that
conclusion. 65 But it is in my view beside the point under the
statute. Apparently, the legislature contemplated a proceeding in
which a petitioner in an election contest would present contested
ballots to the district court for inspection and an ultimate
resolution of the contest. If for some reason that evidence was
65 In the course of briefing and oral argument, the suggestion
was made that the proof problem in this case was not the product
of comingling of ballots but instead a systemic issue embedded in
our electronic voting system. The point, specifically, was that it is
technically impossible to “inspect” a contested (allegedly illegal)
ballot in court to determine which way the ballot was cast on the
office in question. See Oral Arg. 9:00–17:00; but see Mem. Decision
9–10 (noting that by statute for either a paper or electronic ballot
“[t]he poll worker should have written [Russell C. Jones’s] ballot
number and the name of the Republican party opposite
Mr. Jones’s name in the official register,” that for a paper ballot
the poll worker should have “endorsed Mr. Jones’s initials on the
[ballot] stub”). I have no way of knowing whether that is in fact
the case. But if it is, this is a problem that the legislature, the
lieutenant governor, and other election officials ought to be aware
of. If there is a disconnect between the governing election contest
provisions of our code and the voting system we are currently
employing, one or the other of them ought to be altered. If our
current voting system in fact makes it impossible to inspect a
challenged ballot, our system should be altered to facilitate the
required determination by the court. Or, alternatively, our
election contest provisions should be amended to bring them in
line with our current voting system.
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unavailable in this case, there is an established mechanism for
resolving a case in which evidence is missing—the burden of
proof. And because the election contest petitioner (Dyer) bore the
burden, I do not see how we can affirm a decision annulling and
setting aside the election on his election contest petition absent the
evidence and proof contemplated by the statute. 66
¶ 59 By statute, the district court has authority to “annul[]
and set[] aside the election.” UTAH CODE § 20A-4-404(4)(c)(i). But
that authority is to be exercised in connection with the court’s
determination of the election contest, and upon inspection of the
contested ballots “in open court.” Id. § 20A-4-404(3)(b)(i). Indeed,
as if to emphasize this point, the code specifies that the district
court’s authority to enter a judgment “annulling and setting aside
the election” is to be exercised only “[a]fter all the evidence in the
contest is submitted.” Id. § 20A-4-404(4)(c)(i). 67 Because the district
court did not determine the election contest in this case on the
basis of the evidence specified by the code, and the election
contest petitioner (Dyer) did not carry his burden of persuasion
under the statute, I would not affirm the district court’s decision
on the merits. And I would not conclude that an election contest
66 In so concluding, I would render neither judgment nor
“suspicion” as to the “types of circumstantial evidence” that
“could properly be relied upon to determine the outcome of an
election.” Supra ¶ 27 n. 32 (“express[ing] great suspicion” that
voter testimony could be considered in an election contest).
67 Presumably, the usual circumstance in which an election
contest would be annulled and set aside without declaring another
person the rightful winner would be the circumstances spelled out
in the statute in which there is no showing required as to the
impact on the “result” of the election. See supra ¶ 52 n.66; UTAH
CODE § 20A-4-402(1)(b), (c), (g). This case is another—more
unusual—example. As explained below, the lack of an appeal
from the judge’s order annulling and setting aside the election in
this case “void[ed]” the certificate of election by statute. UTAH
CODE § 20A-4-406(2). Ordinarily, however, an election contest
premised on an allegation of illegal votes being counted and/or
legal votes not being counted would require proof that the votes
in question were “sufficient to change the result.” Id. § 20A-4-
402(1)(d).
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petitioner may succeed in overturning an election without
carrying his burden of proof.
II. LACK OF AN APPEAL AS VOIDING A CERTIFICATE
OF PRIMARY ELECTION
¶ 60 For the above reasons, I disagree with the grounds for
the court’s decision to affirm the district court’s decision annulling
and setting aside the election in question on its merits. Yet I
would still affirm the decision of the district court on the basis of a
procedural bar in the election code. On this point, moreover, a
majority of the court agrees.
¶ 61 Under Utah Code section 20A-4-406(2), “[w]henever an
election is annulled or set aside by the judgment of a court and no
appeal is taken within 10 days, the certificate of election, if any
has been issued, is void, and the office is vacant.” The conditions
of this provision have been satisfied in this case. Judge Laycock
entered an order annulling and setting aside the election in
question on August 14, 2014. That judgment became unassailable
when no appeal was taken by the parties within ten days—on or
before August 24, 2014. At that point, the “certificate of election”
in question became “void” by statute. I would affirm Judge
Laycock’s order annulling and setting aside the election in this
case on that basis. And in so doing, I would stop short of reaching
the pleading and proof problems discussed in Part I of this
opinion above.
¶ 62 For these reasons, and for others set forth in the majority
opinion of Associate Chief Justice Nehring, supra ¶¶ 36–39, I
would also hold that the district court erred in ordering a special
election. As Justice Nehring indicates, the election code nowhere
empowers the court to order a special election. And a decision
ordering government officials to conduct such an election without
affording them notice and an opportunity to be heard would fail
as a matter of procedural due process. 68 In any event, the impact
68 Under the governing civil rule, a party to an injunction is
entitled to notice and an opportunity to be heard. UTAH R. CIV. P.
65A(a)(1) (“No preliminary injunction shall be issued without
notice to the adverse party.”); id. 65A(d) (providing that an
injunction “shall be binding only upon the parties to the action,
(con’t.)
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of the lack of an appeal is clear: The “certificate of election . . . is
void, and the office is vacant.” UTAH CODE § 20A-4-406(2). That
remedy affords no room for a special election.
¶ 63 Justice Nehring arrives at the same ultimate
conclusion—affirming the decision setting aside the election but
reversing the decision ordering a special election. But he rests his
decision on the merits of the underlying election contest, while
deeming section 406(2) inapplicable. The proffered grounds for
avoiding section 406(2), however, misunderstand my basis for
invoking this provision, and provide no basis for ignoring its
terms.
¶ 64 I have no quarrel with the proposition that the lieutenant
governor acted with “diligence” in submitting his petition for
extraordinary writ. Supra ¶ 24. Thus, I am on board with the
conclusion that the petition was timely (and not barred by the
doctrine of laches), and agree that we should “reach the merits” of
the lieutenant governor’s claims. Supra ¶ 24. My point is simply
that in addressing the merits, we should give effect to the
governing provisions of the election code, including Utah Code
section 20A-4-406(2).
¶ 65 I am not suggesting that this provision “insulate[s]” the
district court’s decision “from review.” Supra ¶ 23. Instead, I
would simply hold that in exercising our extraordinary writ
power, we are no less bound to follow the law. A petition for
extraordinary relief invokes this court’s “original jurisdiction.” See
UTAH CONST. art VIII § 3. Such a petition is simply an alternative
procedural pathway for a party to ask this court to exercise its
judicial power. But whether we are exercising original or
their officers, agents, servants, employees, and attorneys, and
upon those persons in active concert or participation with them
who receive notice”). That rule, moreover, is an outgrowth of the
constitutional right to due process. See 11A CHARLES ALAN
WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE & PROCEDURE
§ 2956 at 383–84 (3d ed. 2013) (“A court ordinarily does not have
power to issue an order against a person who is not a party and
over whom it has not acquired in personam jurisdiction.
Therefore, persons who are not actual parties to the action or in
privity with any parties may not be brought within the effect of a
decree merely by naming them in the order.” (footnote omitted)).
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appellate jurisdiction, we are always bound to follow the law.
And here that law includes section 406(2).
¶ 66 Section 406(2) is simple and straightforward. It provides
a “brief ten-day window for the parties to appeal an election
decision,” supra ¶ 23, and expressly indicates that the election
certificate is “void” where there is no appeal, UTAH CODE § 20A-4-
406(2). That provision sustains significant reliance interests; and
those interests ought to be protected in the exercise of our original
jurisdiction. I would affirm on the basis of section 406(2), which
clearly dictates affirmance of the district court’s decision.
III. THE DOCTRINE OF ABSURDITY
¶ 67 When a certificate of election becomes “void” under
Utah Code section 20A-4-406, the statute also dictates the
conclusion that “the office is vacant.” A vacancy in an office, in
turn, is addressed by the terms of Title 20A, Chapter 1, Part 5 of
the code. In the event of a “midterm vacancy” in a county office,
for example, the code provides for appointment of an “interim
replacement” by the “county legislative body” and the subsequent
election of a “replacement” by terms and conditions specified for
a special election. UTAH CODE § 20A-1-508. This part of the code
also speaks to a different sort of “vacancy”—a candidate vacancy.
For a “registered political party that will have a candidate on a
ballot in a primary election,” the code specifies procedures for the
party to replace a candidate who “dies,” “resigns” due to a
“disability,” or “is disqualified by an election officer for improper
filing or nominating procedures.” Id. § 20A-1-501(1)(a).
Specifically, this section of the code indicates that a “candidate
vacancy” in a county office is to be filled by “the county central
committee of a political party.” Id. § 20A-1-501(1).
¶ 68 As the majority indicates, this provision is not
technically implicated in this case. Supra ¶ 43. By its terms, this
section does not apply because this is not a case in which there is a
“candidate vacancy” precipitated by death, resignation due to
disability, or disqualification by an election officer for filing or
nomination violations.
¶ 69 The question presented, accordingly, is how to deal with
what appears to be a gap in the code. One possible approach, and
the one that would be the ordinary course for a court, is for us to
stand down—to do nothing, and treat the gap as one for the
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JUSTICE LEE, opinion of the Court in Part II
legislature (and not this court) to fill going forward. This is the
ordinary course because it respects the work product of the
legislature—the statutory text. In most all cases, it is not the
court’s job to fill in the gaps it finds in legislation. That is most
always a legislative function, and thus not one for us.
¶ 70 With this in mind, I disagree with the line of cases cited
approvingly in the majority opinion. See supra ¶ 42 n.51. I would
not conclude, as these courts seem to, that “when a statute is
silent” on a particular issue, it is our role to fill in the gap with our
best sense of the legislature’s “intent” on the omitted matter.
Supra ¶ 42 n.51 (citing cases). Instead of imagining the
legislature’s intent in such circumstances, in an effort to
“‘determine the best rule of law to ensure that the statute is
applied uniformly,’” supra ¶ 42 n.51 (quoting Mariemont Corp. v.
White City Water Improvement Dist., 958 P.2d 222, 226 (Utah 1998)),
we should generally treat the omitted case as simply omitted from
the legislation. 69
¶ 71 Yet there is a narrow, limited exception to this rule. The
exception is the doctrine of absurdity, under which we may find
the text of a statute to encompass a term or condition not
expressly provided by the legislature. This is strong medicine, not
to be administered lightly. To respect the separation of powers
and the constitutional prerogatives of the legislature, we must not
substitute our views of good policy for that of the legislature.
Instead, we should deem ourselves bound to follow and
implement only the terms and conditions of the code except in the
69 See Iselin v. United States, 270 U.S. 245, 251 (1926) (Brandeis,
J.) (“To supply omissions transcends the judicial function.”); Jones
v. Smart, (1785) 99 Eng. Rep. 963 (K.B.) 967 (Buller, J.) (“[W]e are
bound to take the act of parliament, as they have made it: a casus
omissus can in no case be supplied by a Court of Law, for that
would be to make laws . . . .”); Frank H. Easterbrook, Statutes’
Domains, 50 U. CHI. L. REV. 533, 548 (1983) (“Judicial interpolation
of legislative gaps would be questionable even if judges could
ascertain with certainty how the legislature would have acted.
Every legislative body’s power is limited by a number of checks
. . . . The foremost of these checks is time. . . . The unaddressed
problem is handled by a new legislature with new instructions
from the voters.”).
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rare and limited circumstance in which the terms as written
would lead to an outright absurdity.
¶ 72 The doctrine of absurdity is both deeply rooted and
narrowly restricted. It traces its roots at least to Blackstone, who
asserted that “where words bear . . . a very absurd signification, if
literally understood, we must a little deviate from the received
sense of them.” 1 WILLIAM BLACKSTONE, COMMENTARIES *60
(emphases added). The emphasized terms in Blackstone’s
formulation highlight two points of limitation. One is the degree
of absurdity. If we are to maintain respect for the legislature’s
policymaking role, and avoid the temptation to substitute our
preferences for its decisions, we must not override the statutory
text with our sense of good policy in a case in which we deem the
statute’s formulation merely unwise or incongruous. To justify
this extraordinary exercise of judicial power, the text as written
must be so overwhelmingly absurd that no rational legislator
could ever be deemed to have supported a literal application of its
text. 70
70 See 1 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF
THE UNITED STATES § 427, at 411 (1833) (“[I]f, in any case, the plain
meaning of a provision, not contradicted by any other provision
of the same instrument, is to be disregarded, because we believe
the framers of that instrument could not intend what they say, it
must be one, where the absurdity and injustice of applying the
provision to the case would be so monstrous, that all mankind
would, without hesitation, unite in rejecting the application.”).
The Story formulation may contain a bit of hyperbole. In the
divided society we live in today, I rather doubt there are any
points of statutory interpretation on which “all mankind” would
“unite” “without hesitation.” For me, the better formulation is one
that would ask whether any rational legislator could have
adopted the formulation rendered by the literal text. See Hanif v.
Att’y Gen., 694 F.3d 479, 483 (3d Cir. 2012) (invoking the doctrine
of absurdity upon a showing that “blind adherence to the literal
meaning of a statute [would] lead to a patently absurd result that
no rational legislature could have intended”); Cernauskas v.
Fletcher, 201 S.W.2d 999, 1000 (Ark. 1947) (refusing to read literally
a provision which read “[a]ll laws and parts of laws, and
(con’t.)
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JUSTICE LEE, opinion of the Court in Part II
¶ 73 Some examples from modern cases may help to illustrate
the standard. In 1995, a Texas statute provided an absolute
defense to all “Chapter 601 offenses” under the Texas code where
the accused “produce[d] in court a motor vehicle liability policy
. . . that was valid at the time the offense is alleged to have
occurred.” 71 Read literally, this provision would have provided
not just a defense for the “Chapter 601 offense” of driving without
proof of insurance, but absolute immunity (by production of
proof of insurance) for other “Chapter 601 offenses” such as
driving on a suspended license. In State v. Boone, 1998 WL 344931
(Tex. Ct. App. June 30, 1998) (unpublished), the court avoided this
absurd result. It did so by limiting “Chapter 601 offense” to the
offense of driving without proof of insurance. Id. at *2–*3. Rightly
so, as no rational legislator could be deemed to have supported
the statutory text as written literally.72
¶ 74 The second limitation in Blackstone’s formulation is also
important. It authorizes “little” or minor deviations from the
statutory text to avoid absurdities in statutory meaning. As to
larger deviations, the premise is that it is more likely that a
judicial override of literal statutory text may represent a mere
policy disagreement, and not a correction of an unintended (and
obvious) disconnect between the policy adopted by the legislature
and the text it used to implement it. To minimize the risk of
judicial overreach, the absurdity doctrine should be limited to
cases in which there is a “non-absurd reading that could be
achieved by modifying the enacted text in relatively simple
ways.” 73 The above-cited Texas case is a good example. Because it
particularly Act 311 of the Acts of 1941, are hereby repealed”
because “[n]o doubt the legislature meant to repeal all laws in
conflict with that act, and, by error of the author or the typist, left
out the usual words ‘in conflict herewith,’ which we will imply by
necessary construction”).
71 TEX. TRANSP. CODE ANN. § 601.193(a) (West 1995).
72 See also Cernauskus, 201 S.W.2d at 1000 (refusing to read
literally a statute which purported to wipe out all statutory law in
the state of Arkansas because such a result was an absurdity).
73Michael S. Fried, A Theory of Scrivener’s Error, 52 RUTGERS L.
REV. 589, 607 (2000); see also ANTONIN SCALIA & BRYAN A. GARNER,
READING LAW: THE INTERPRETATION OF LEGAL TEXTS 239 (2012)
(con’t.)
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was “relatively simple” to read a limitation on “Chapter 601
offenses,” the Texas court was able to avoid an obvious absurdity
in a manner consistent with the Blackstone limitations on the
doctrine.
¶ 75 I would reach the same conclusion as the majority by
application of these tenets of the doctrine of absurdity. For
reasons explained by the court, it is impossible for me to imagine
that any rational legislator would have supported a literal
construction of the election code—a construction leading to the
determination that annulment of a primary election would leave a
registered political party without a designated candidate in the
general election. That outcome is literally absurd, and by no
means the sort of outcome that any legislator could have intended
as any sort of legislative compromise. That conclusion is
particularly clear (as the majority notes) in light of other
provisions of the code that comprehensively prescribe
mechanisms for a party to designate a replacement candidate
when the candidate designated in the primary is otherwise
unavailable—due to death, resignation due to disability, or
disqualification by an election officer for filing or nomination
violations. See supra ¶¶ 44–45 (citing UTAH CODE § 20A-1-501).
And the point is hammered home by another provision of the
code, section 20A-5-508, which, as the majority explains, allows a
political party to “summarily certify” a candidate for a general
election when a vacancy arises within 75 days of a primary but
more than 65 days before the general election. Supra ¶ 45 n.58
(citing UTAH CODE § 20A-1-508(5)). In light of these provisions,
and for reasons explained in greater detail in the majority opinion,
I would conclude that no rational legislator could have intended
to leave a registered political party without a candidate on the
ballot in a case in which the primary election is annulled and set
aside.
¶ 76 I would also endorse the majority’s adoption of the
mechanism set forth in Utah Code section 20A-1-501(c)(iii) as the
(“The doctrine of absurdity is meant to correct obviously
unintended dispositions, not to revise purposeful dispositions that,
in light of other provisions of the applicable code, make little if
any sense.”).
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applicable provision in this case. That provision prescribes a
procedure for a party to designate a substitute candidate where
the candidate chosen in a primary has been disqualified by an
election officer. That is not technically what happened here. But
extension of that provision to this (closely analogous) case
represents a “relatively simple” adjustment to the statutory
language. And for that reason the court’s adoption of this
provision seems to me to be compatible with our limited authority
under the narrow doctrine of absurdity as described above.
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