Proulx v. Salt Lake City Recorder

This opinion is subject to revision before final
publication in the Pacific Reporter
2013 UT 2IN THE
SUPREME COURT OF THE STATE OF UTAH
CALEB PROULX,
Petitioner,
v.
SALT LAKE CITY RECORDER; SALT LAKE CITY CORP.,
Respondents.
No. 20120521
Filed January 18, 2013
Original proceeding in this Court
Attorneys:
Caleb Proulx, pro se
Edwin P. Rutan II, J. Elizabeth Haws, Salt Lake City,
for respondents
JUSTICE DURHAM authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,
JUSTICE PARRISH, and JUSTICE LEE joined.
JUSTICE DURHAM, opinion of the Court:
INTRODUCTION
¶1 Caleb Proulx petitioned this court to issue an extraordinary
writ compelling the Salt Lake City Recorder to place an initiative on
the November 2012 ballot, and to declare that the power of popular
initiative encompasses initiatives that are purely advisory. We
issued an order denying the petition, and now explain our
reasoning.
BACKGROUND
¶2 In April of this year, a group calling itself Move to Amend
Salt Lake submitted a petition (the Petition) to the Salt Lake County
Clerk for certification under section 20A-7-506 of the Utah Code.
That section governs the certification of initiative petitions for
placement on local ballots. The Petition styled itself as a “Resolution
of Support for a Constitutional Amendment to Declare that
PROULX v. SALT LAKE CITY RECORDER
Opinion of the Court
Corporations Are Not People.”1
¶3 The Clerk certified the signatures on the Petition and
delivered it to the Salt Lake City Recorder in May. The Recorder in
turn reported the Petition to the Salt Lake City Council in June. On
June 5, the Salt Lake City Law Department issued a letter (the Legal
Opinion) to the Mayor and the Council. The Legal Opinion
expressed the view that “the proposed ‘resolution’ fails to constitute
‘legislation,’ or a ‘local law’ and therefore is not the proper subject
of an initiative under the Utah Constitution and statutes.” The Legal
Opinion cited section 20A-7-102(1)(b) of the Utah Code, which
speaks of the power of “Utah voters” to “initiate any desired
legislation.” (Emphasis added.) It also cited Black’s Law Dictionary and
this court’s caselaw, including the 1936 case White v. Welling, 57 P.2d
703 (Utah 1936). The Legal Opinion concluded that “the Move to
Amend petition does not qualify as a proper initiative under the
Utah Constitution and statutes and the City Recorder is therefore
required to reject it as legally insufficient.” The City subsequently
informed Move to Amend that their Petition would not be placed on
the ballot.
¶4 Caleb Proulx, a registered voter in Salt Lake City, filed a
Petition for Extraordinary Relief in this court, asking us to compel
the Recorder to place the initiative on the City’s November 2012
ballot. The City declined to submit a brief in this proceeding, as is its
prerogative under rule 19(c) of the Utah Rules of Appellate
Procedure. However, a representative of the City did appear at oral
argument and answered questions from the court. The City’s
representative informed the court that a decision was necessary by
1
The substance of the Petition was as follows:
RESOLVED, the People of Salt Lake City, Utah, stand with the
Move to Amend campaign and cities and counties across the
country to defend democracy from the corrupting effects of
undue corporate power by amending the United States
Constitution to establish that:
1. Only human beings, not organizations, are endowed with
constitutional rights, and,
2. Money is not speech, and therefore regulating political
contributions and spending is not equivalent to limiting
political speech.
BE IT FURTHER RESOLVED, that the People of Salt Lake
City, Utah hereby instruct our state and federal
representatives to enact resolutions and legislation to advance
this effort.
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August 30, due to the schedule for its preparation of the ballot. We
denied Mr. Proulx’s petition on July 31.
STANDARD OF REVIEW
¶5 “Petitions for extraordinary relief are governed by rule 65B
of the Utah Rules of Civil Procedure. . . . The ultimate decision as to
whether to grant or deny a petition lies within the sound discretion
of this court.” Salt Lake Legal Defender Ass’n v. Atherton, 2011 UT 58,
¶ 9, 267 P.3d 227.
ANALYSIS
¶6 Mr. Proulx offers five arguments in support of his petition
for extraordinary relief. First, he argues that the text of our state
constitution does not limit the power of popular initiative to
initiatives that, if passed, will constitute binding law. Second, he
argues that our precedents holding to the contrary are inconsistent
with the constitution. Third, he argues that the principle of
separation of powers does not prohibit the placement of a purely
advisory initiative on the ballot. Fourth, he argues that forbidding
advisory initiatives violates the First Amendment of the United
States Constitution. Fifth and finally, he argues that allowing
advisory initiatives would benefit the public. We are not persuaded
by his arguments, and accordingly deny his petition for
extraordinary relief.
¶7 First, the text of the constitution: “The Legislative power of
the State shall be vested in [both] . . . the Legislature . . . and . . . the
people of the State of Utah . . . .” UTAH CONST. art. VI, § 1(1). “The
legal voters of the State of Utah . . . may . . . initiate any desired
legislation and cause it to be submitted to the people for adoption
upon a majority vote . . . as provided by statute . . . .” Id. art. VI,
§ 1(2) (emphasis added). Thus, article VI specifies the nature of the
“[l]egislative power” vested in the people: they may “initiate any
desired legislation.” Id. (emphasis added).
¶8 “In interpreting the state constitution, we look primarily to
the language of the constitution itself . . . . as it would be understood
by persons of ordinary intelligence and experience.” T-Mobile USA,
Inc. v. Utah State Tax Comm’n, 2011 UT 28, ¶ 30, 254 P.3d 752 (internal
quotation marks omitted); see also id. ¶ 31 (citing Black’s Law
Dictionary to support our conclusion that the meaning of a
constitutional term was “clear and unambiguous”).
¶9 Legislation is defined as “[t]he process of making or
enacting a positive law” and “[t]he law so enacted.” BLACK’S LAW
DICTIONARY 982 (9th ed. 2009) (emphasis added). Positive law, in
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PROULX v. SALT LAKE CITY RECORDER
Opinion of the Court
turn, “typically consists of enacted law—the codes, statutes, and
regulations that are applied and enforced in the courts.”Id. at 1280
(emphasis added); see also WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 1291 (1961) (defining legislation as “the exercise of the
power and function of making rules (as laws, ordinances, edicts)
having the force of authority” (emphases added)). These sources
confirm that “legislation” means law that has positive, binding
effect. A resolution declaring generally that corporations are not
people, and urging (with no binding force) efforts to amend the
United States Constitution to that effect, is not within the scope of
the “legislation” that article VI empowers the people to propose by
initiative.
¶10 Mr. Proulx argues that this is a “hyper-technical, un-
imaginative, and too-literal” construction of the constitutional term
“legislation.” However, as explained above, this is the meaning
found not only in a specialized legal dictionary, but also in a
dictionary for general use. Mr. Proulx cites no alternatives
supporting another common understanding of “legislation.” Instead,
he refers to opinions of this court.
¶11 Mr. Proulx quotes Carter v. Lehi City: “Legislative power
generally (a) involves the promulgation of laws of general
applicability; and (b) is based on the weighing of broad, competing
policy considerations.” 2012 UT 2, ¶ 34, 269 P.3d 141 (emphasis
added). This quotation does not contradict our construction of the
term “legislation,” but rather strengthens it. While the Petition
contains broad statements of policy (corporations should not be
regarded as persons with rights; money is not speech), it does not
propose a “law[] of general applicability.” Id. Carter defines
“[l]egislative power” in the conjunctive: promulgation of a general
law and a basis in policy consideration. Id. The Petition at most meets
only the second half of the definition. It fails to meet the first, and is
therefore not a valid exercise of that aspect of the legislative power
retained by the people in their power of popular initiative.
¶12 He also quotes Mouty v. Sandy City Recorder: “[A]ll acts
taken by a city council in a city organized pursuant to the council-
mayor form of government are necessarily legislative and subject to
referenda.” 2005 UT 41, ¶ 36, 122 P.3d 521. But in that opinion, we
considered whether a city ordinance that amended land use rules
was administrative or legislative in nature. See id. ¶¶ 1, 22. We
determined that it was legislative in nature, and that it was subject
to referendum. Id. ¶¶ 36, 40. Nowhere in that opinion did we
discuss the power of popular initiative, let alone the question
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specifically presented here of what the boundaries of that power are.
¶13 Mr. Proulx further submits that this narrow construction
of “legislation” is belied by statute. He points to section 20A-7-
101(12)(a) of the Utah Code, which defines “[l]ocal law,” for
purposes of Title 20A, Chapter 7 (“Issues Submitted to the Voters”),
to “include[] an ordinance, resolution, master plan, and any
comprehensive zoning regulation adopted by ordinance or
resolution.” (Emphases added.) This, he argues, is a more “granular”
definition of “the actual limits of the people’s legislative power. . . .
and it plainly contradicts the narrow interpretation of ‘legislation’
that is currently the law.” Again, we disagree. This definition of
“local law” is used elsewhere in Chapter 7 to distinguish those
pieces of “desired legislation” that are subject to local as opposed to
state initiatives, id. § 20A-7-102(1)(a)-(b), and to identify which laws
are subject to local referenda, id. § 20A-7-501(3)(c). We do not
understand this definition of “local law” to contradict our
construction of the constitutional term “legislation.”
¶14 Second, our caselaw: We determined that purely advisory
statements were inappropriate subjects for initiative in White v.
Welling, 57 P.2d 703 (Utah 1936) (per curiam). In that case, citizens
sought to compel the secretary of state to place certain petitions on
the statewide ballot. Id. at 703, 705–06. We held that the secretary
had discretion
to determine whether the document or instrument
submitted and purporting to contain the proposed law
to be initiated has the semblance of a law, or [whether it]
is such a matter as is not properly the subject of the
[initiative power]. That is to say, the secretary of state
would not be required, for instance, to submit to the
people (a) something merely calling for their opinion or
other belief; or (b) something which, if voted on
favorably by the people, would not have any of the
characteristics or attributes of a law.
Id. at 705 (emphases added); see also Salt Lake on Track v. Salt Lake
City, 939 P.2d 680, 682 (Utah 1997) (“[A] public official to whom an
initiative or referendum petition is presented for filing does have the
authority to reject that petition if, in fact, it is legally insufficient or
is directed to a matter that is not subject to an initiative or
referendum.”). This conclusion—that the responsible public official
has the authority to reject an initiative that lacks “the characteristics
or attributes of a law”—follows logically from the plain meaning of
the constitutional language restricting the initiative power to
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“legislation,” as discussed above.
¶15 Mr. Proulx argues that a recent opinion of ours casts doubt
on this longstanding rule. In Carter, we observed that “article VI
recognizes a single, undifferentiated ‘legislative power,’ vested both
in the people and in the legislature.” 2012 UT 2, ¶ 22. But that
opinion considered whether a city could refuse to accept initiatives
regulating city employees’ salaries and residency requirements. Id.
¶ 1. The question was whether these initiatives were administrative
in nature, and therefore not appropriate subjects for a popular
initiative, or legislative in nature and therefore within the initiative
power established in article VI. See id. ¶ 16. We determined that the
initiatives were “proper exercises of legislative power.” Id. ¶ 19. But
whatever their nature, they were not purely advisory because they
sought to alter requirements and compensation for public
employment. Carter did not, therefore, affect the rule announced in
White. Accordingly, the teaching of our caselaw remains intact: the
initiative power is limited, and its limitations do not encompass
resolutions that are purely advisory. “Whether on a statewide or
local basis, the people may propose any measure that is
‘desired’—so long as it is ‘legislation’ . . . .” Id. ¶ 30 (quoting UTAH
CONST. art. VI, § 1(2)(a)(i)(A)).
¶16 Third, the principle of separation of powers: The Legal
Opinion from the City Law Department said the following:
If the people’s legislative power is coextensive with the
Legislature’s legislative power, why can’t the people
express their opinions on similar issues [as those treated
in legislative resolutions] by initiative? The answer is
that the Legislature’s and the people’s “legislative
power” under Article VI of the Utah Constitution is
“legislative power” in a separation of powers sense, see
Article V, not “legislative power” in the general sense of
whatever actions a legislative body is authorized to
take. In a separation of powers form of government,
expression of opinions is not unique to the Legislative
Branch.
¶17 Mr. Proulx argues that the principle of separation of
powers does not prohibit popular initiatives that are purely
advisory. We agree, but we do not think this is what the City Law
Department meant in the passage of its Opinion quoted above.
Rather, we understand it to mean—and we agree—that article VI
defines the “legislative power” as opposed to the “executive power”
of article VII and the “judicial power” of article VIII. Article VI’s
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reference to “legislative power” does not empower the people to do
all things the legislature does.2 It only empowers the people to
“initiate any desired legislation” through the initiative process, as
explained above.
¶18 “The Legislative power of the state shall be vested in: (a)
. . . the Legislature of the State of Utah; and (b) the people of the State
of Utah as provided [below].” UTAH CONST. art VI, § 1(1). We
observed in Carter that “[n]othing in the text or structure of article VI
suggests any difference in the power vested simultaneously in the
‘Legislature’ and ‘the people.’” 2012 UT 2, ¶ 22. But as explained
above, Carter examined and defined the “legislative power” in
contrast to the executive and judicial powers. Carter did not change
the requirement that direct popular involvement in the legislative
process be limited to “legislation.” Id. ¶ 18 (“[T]he people may
initiate legislation, but they lack the authority to execute the law or
to adjudicate it.”). For the reasons explained above, both the text of
the constitution and our caselaw require that the power of popular
initiative be exercised only to propose “legislation.” “Legislation,”
in turn, must have the characteristics of binding law, and may not
include a purely advisory resolution such as the one proposed by the
Petition in today’s case.
¶19 Fourth, the First Amendment: Mr. Proulx argues that the
prohibition on advisory initiatives violates the right of free speech.
But none of the cases he cites in support of this argument compel
that conclusion, see, e.g., Meyer v. Grant, 486 U.S. 414, 416 (1988) (law
against paying petition circulators violates First Amendment), and
other federal authority specifically weighs against it, see Georges v.
Carney, 691 F.2d 297, 300 (7th Cir. 1982) (noting that the parties agree
that “there is no constitutional right to use the ballot box as a forum
for advocating a policy . . . and [a state] therefore has no
constitutional obligation to allow advisory questions to be placed on
the ballot”); see also Protect Marriage Ill. v. Orr, 463 F.3d 604, 606 (7th
Cir. 2006) (“A state no more has a federal constitutional obligation
to permit advisory questions on its ballot than it has to permit them
2
For example, the legislature issues subpoenas in furtherance of
its oversight power. See In re McCully, 942 P.2d 327, 328–29 (Utah
1997) (legislative subpoena issued to guardian ad litem in
furtherance of general audit of foster care system). Mr. Proulx
conceded at oral argument that the people cannot issue such
subpoenas through initiative. He therefore logically concedes that
the power of popular initiative is not fully coextensive with the
functions performed by the Legislature.
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to be painted on the walls of the state capitol.”).
¶20 Fifth and finally, the question of public policy: Mr. Proulx
argues that removing the prohibition against advisory initiatives
would educate the voting public and foster participation in the
political process. This may be true, and if true, it is a good argument
for amending the constitution to permit such initiatives. But our
constitution, both in its plain language and as interpreted in our
caselaw, does not so permit.
CONCLUSION
¶21 The power of popular initiative in Utah does not
encompass initiatives that are purely advisory. Accordingly, the
petition for extraordinary relief is denied.
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