Poulton v. Cox

This opinion is subject to revision before
publication in the Pacific Reporter
2016 UT 9
IN THE
SUPREME COURT OF THE STATE OF UTAH
LAMAR STEVEN POULTON; HEATHER WILLIAMSON;
RANDY J. O‟HARA; RUSSELL C. SKOUSEN; and RICK B. LARSEN,
Petitioners,
v.
SPENCER J. COX,
Lieutenant Governor of the State of Utah,
Respondent.
No. 20150665
Filed March 3, 2016
On Petition for Extraordinary Writ
Attorneys:
Stephen C. Clark, Salt Lake City, for petitioners
Thom D. Roberts, Tyler R. Green, Asst. Att‟ys Gen.,
Salt Lake City, for respondent
JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
and JUSTICE DURHAM joined.
JUSTICE JOHN A. PEARCE became a member of the Court
on December 17, 2015, after oral argument in this
matter, and accordingly did not participate.
JUSTICE HIMONAS, opinion of the Court:
¶ 1 This petition for extraordinary writ concerns an initiative
application sponsored by LaMar Steven Poulton, Heather
Williamson, Randy J. O‟Hara, Russell C. Skousen, and Rick B.
Larsen (Petitioners) as members of Utah Term Limits NOW!
(UTLN). The Petitioners wanted to initiate legislation imposing
POULTON v. COX
Opinion of the Court
term limits on persons appointed to state boards and commissions
by the Governor. Their August 10, 2015 initiative application was,
however, rejected by the Lieutenant Governor on August 13, 2015,
as “patently unconstitutional.”
¶ 2 Because “time is of the essence . . . to get the initiative on
the ballot for the next general election in November 2016,” the
Petitioners chose to seek an extraordinary writ from this court
rather than file their petition with the district court. The petition
for extraordinary writ asks us to determine “under what
circumstances . . . the Lt. Governor [can] properly exercise his
statutory authority to reject an initiative application” and whether
that authority was properly exercised, in this case, to reject
Petitioners‟ August 10, 2015 initiative application. In their
petition, the Petitioners make clear that they “do not currently
challenge th[e] purported statutory authority [of “the
Lt. Governor to engage in pre-enactment substantive
constitutional review and to reject proposed initiative legislation
that is „patently unconstitutional‟”] on its face.” Rather, they
challenge “its being deployed to deprive them of their
fundamental constitutional right [i.e., “the constitutional power of
the people to initiate legislation”] in this case.” The Petitioners
seek relief in the form of “a writ of mandamus compelling the Lt.
Governor to rescind and withdraw his rejection of the
[Petitioners‟] . . . application.”
¶ 3 After filing their petition for extraordinary relief,
however, the Petitioners publicly and formally ceased “efforts to
place the proposed initiative on the ballot.” “[L]ess than one
month before oral argument, UTLN issued a press release
publicly announcing that it was „terminating its year-long effort to
bring the issue of term limits on key appointments by the
governor to the 2016 ballot.‟” Upon issuance of the press release,
the Lieutenant Governor filed a suggestion of mootness. The
Lieutenant Governor pointed to the Petitioners‟ decision to “„leave
the issue to legislators‟ and „candidates‟ to pursue” and the lack of
plans to resume efforts to place the initiative on a future ballot.
The Petitioners nevertheless indicated their intention “„to proceed
with oral argument before the Court‟ because the issues raised are
„too important to abandon.‟” The Petitioners ask us to “resolve the
issues . . . based on the „public interest‟ exception to the mootness
doctrine.”
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Cite as: 2016 UT __
Opinion of the Court
ANALYSIS
¶ 4 The Petitioners‟ decision to cease efforts to place the
initiative on the 2016 ballot has rendered the issues raised by the
petition for extraordinary writ moot because the requested relief
is no longer available. Moreover, the issues presented by the
petition for extraordinary writ do not fall under the public interest
exception to the mootness doctrine.
A. The Petition Is Moot
¶ 5 The issues in the petition for extraordinary writ are moot
because the relief originally requested by the Petitioners is no
longer available. “An appeal is moot if during the pendency of the
appeal circumstances change so that the controversy is
eliminated, thereby rendering the relief requested impossible or of
no legal effect.” Navajo Nation v. State (In re Adoption of L.O.), 2012
UT 23, ¶ 8, 282 P.3d 977 (internal quotation marks omitted). Here,
the relief sought was “a writ of mandamus compelling the
Lt. Governor to rescind and withdraw his rejection of the
[Petitioners‟] . . . application.” Rescission and withdrawal of that
rejection would no longer be an effective form of relief, since the
Petitioners have publicly and formally terminated their efforts to
place the proposed initiative on the ballot. The Petitioners
themselves have conceded that “because they cannot now, as a
practical matter, pursue the initiative process, relief consisting of
this Court‟s compelling the Lt. Governor to approve their
application would come too late.” Consequently, the petition is
moot.
B. The Public Interest Exception to
Mootness Does Not Apply
¶ 6 Contrary to the contention of the Petitioners, the public
interest exception to the mootness doctrine does not apply in this
case. The public interest exception arises when an issue
“(1) affect[s] the public interest, (2) [is] likely to recur, and
(3) because of the brief time that any one litigant is affected, [is]
likely to evade review.” State v. Steed, 2015 UT 76, ¶ 7, 357 P.3d
547.
¶ 7 Here, the third requirement (“likely to evade review”)
for this mootness exception is not met.
Issues that are likely to evade judicial review are
those that are inherently short in duration such that
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Opinion of the Court
a court will likely be unable to hear the issue when
it still presents a live controversy. . . . “[S]uch
rapidly resolving issues” include “election matters,
closed political meetings, bar admissions, and
abortion cases.”
Id. ¶ 9 (citation omitted). The Petitioners concede that “this is not
the typical election case, where there are very short time frames,
and an election may be over before an appeal (or even a petition
for extraordinary writ) can be heard.” They point out that “time is
of the essence” and that the time frames and procedural
requirements are “challenging.” However, the fact that the
process is challenging does not mean that the issue is “likely to
evade review.” And the fact that time is of the essence was the
reason oral arguments were scheduled and heard for this case
before this court.
¶ 8 The issue did evade review this time, but only because
the Petitioners, “less than one month before oral argument, . . .
issued a press release publicly announcing that [UTLN] was
„terminating its year-long effort to bring the issue . . . to the 2016
ballot.‟” Had they waited a few weeks, the issues would not have
been moot and would have been decided in this case. The
Petitioners also indicated that they could have filed suit earlier but
instead chose to wait and attempt to address the Lieutenant
Governor‟s objection to the proposed statutory language. While
the Petitioners‟ decisions about filing suit and about terminating
their efforts to get the issue on the ballot may well be reasonable,
they also show not only that the issue was not one that is likely to
evade review but that the issue would in fact have been reviewed
in this case if not for the choices of the Petitioners themselves.
CONCLUSION
¶ 9 We dismiss the petition for extraordinary writ as moot
and hold that the public interest exception to the mootness
doctrine does not apply.
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