Anderson v. Provo City

This opinion is subject to revision before final
publication in the Pacific Reporter
2016 UT 50
IN THE
SUPREME COURT OF THE STATE OF UTAH
FRANK ANDERSON, et al. 1,
Petitioners,
v.
PROVO CITY,
Respondent.
SHARON ANDERSON, et al. 2,
Petitioners,
v.
OREM CITY,
Respondent.
No. 20160632, 20160633
Filed October 27, 2016
On Petition for Extraordinary Relief
Attorneys:
Frank D. Mylar, Salt Lake City, for petitioners
Robert H. Hughes, Salt Lake City, for respondent Provo City
Troy L. Booher, Beth E. Kennedy, Salt Lake City,
for respondent Orem City
PER CURIAM:
_____________________________________________________________
1Other Petitioners in this case are DIANE B. CHRISTENSEN, PHILIP
HINKLEY, ROGER ANDREWS, JENNIFER DOUD, PAMELA JONES, ROBERT
RIDGE, and BRUCE WELCH.
2Other Petitioners in this case are HANS ANDERSEN, WAYNE BURR,
CLARINE DOWNS, ANGELA BRICKEY, PEARL MILLER, and THOMAS
MILLER.
ANDERSON et al. v. PROVO CITY and OREM CITY
PER CURIAM
¶1 Petitioners are residents of Orem City and Provo City seeking
to have a referendum placed on the November 2017 ballot. Despite
the fact that Petitioners met the signature threshold needed to put a
referendum before the voters, both Orem City and Provo City
refused. The Cities concluded, in part, that the resolutions could not
be referred to the voters as a matter of law.
¶2 Each set of Petitioners seeks relief in the form of an
extraordinary writ ordering that the referenda be placed on the
ballot. Petitioners filed their petitions in accordance with a provision
of the Utah Election Code that provides that “[i]f the local clerk
refuses to accept and file any referendum petition, any voter may
apply to the Supreme Court for an extraordinary writ to compel the
local clerk to do so . . . .” UTAH CODE § 20A-7-607(4)(a) (emphasis
added).
¶3 Utah Rule of Appellate Procedure 19(b)(5) requires a party
seeking extraordinary relief to explain “why it is impractical or
inappropriate to file the petition for a writ in the district court . . . .”
Petitioners have failed to carry this burden. Instead, Petitioners
argue that Utah Code section 20A-7-607(4)(a) requires that they file
the petition in the supreme court. According to Petitioners,
“[r]equiring the Petition to be made to the Supreme Court is an
implicit public policy statement by the Legislature which further
establishes the urgency and irreparable harm to the voters that exists
when a petition of referendum is rejected.” Petitioners ask this court
to “acknowledge as a matter of law that the rejection of the
[Referendum] Petition meets the requirements of urgency [under
rule 19(b)(4)], and that no other plain and speedy remedy exists but
to file a Petition for Writ with the state’s high court.”
¶4 We have rejected the assumption on which Petitioners’
argument rests—that Utah Code section 20A-7-607 mandates that a
petition be filed in this court. We have noted that section 20A-7-607
“does not limit either the remedies that can be sought or the court in
which those remedies can be pursued . . . .” Low v. City of Monticello,
2002 UT 90, ¶ 16, 54 P.3d 1153, overruled on other grounds by Carter v.
Lehi City, 2012 UT 2, ¶ 15, 269 P.3d 141; Carpenter v. Riverton City,
2004 UT 68, ¶ 4 n.3, 103 P.3d 127 (noting that Utah Code section 20A-
7-607 “is permissive in nature and does not designate this court as
the exclusive location where relief may be sought”). While many
ballot disputes will present tight timelines that will make it either
impractical or inappropriate to file in the district court, that will not
always be the case.
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Cite as: 2016 UT 50
PER CURIAM
¶5 At oral argument, Petitioners suggested it might be
inappropriate and impractical for them to file in the district court,
because Utah Code section 20A-7-607(4)(b) provides that “[i]f the
Supreme Court determines that the referendum petition is legally
sufficient, the local clerk shall file” the referendum. Petitioners fear
that this language authorizes only the supreme court to order the
local clerk to place a referendum on the ballot. In other words,
Petitioners worry that only this court can order the remedy they
seek. We do not read these provisions of the Elections Code to
restrict the district court’s powers, and we conclude that our district
courts possess the authority to provide appropriate relief in
appropriate circumstances.
¶6 Utah Code section 20A-7-607(4) does not require Petitioners to
file in this court nor does it relieve Petitioners of the need to meet the
requirements of Utah Rule of Appellate Procedure 19(b)(4)–(5).
Petitioners have not shouldered their burden of establishing that it
would be impractical or inappropriate for them to file their petitions
in the district court. We, therefore, deny these petitions without
prejudice.
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