Taylor v. South Jordan City Recorder

HOWE, Chief Justice,

dissenting:

I dissent. I would not require the local clerk to furnish initiative forms to sponsors when it is readily apparent to the clerk that he or she cannot legally accept the initiative petition if and when the required number of signatures has been obtained. To so require the clerk is to mislead the sponsors and allow them to engage in the time-consuming useless act of collecting signatures. It is much better to inform the sponsors up-front that any initiative petition they might present will be rejected because it will be legally insufficient.

In the instant case, our case law is clear that zoning ordinances cannot be enacted through the initiative • process. In Dewey v. Doxey-Layton Realty Co., 3 Utah 2d 1, 277 P.2d 805 (1954), we held that a zoning ordinance cannot be enacted by the initiative process because to do so would violate the due process rights of citizens to protect their property through notice and public hearings. Recently, in Salt Lake on Track v. Salt Lake City, 939 P.2d 680 (Utah 1997), this court held that Utah case law “indicates that 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.” Id. at 682 (citing White v. Welling, 89 Utah 335, 57 P.2d 703, 705 (1936); Keigley v. Bench, 97 Utah 69, 89 P.2d 480, 481-82 (1939)).

The instant case is one where it is better for the local clerk to act “sooner” than “later.” If the sponsors believe the local clerk to be in error, the sponsors are free to prepare their own petition as was done with this court’s approval in Palmer v. Broadbent, 123 Utah 580, 260 P.2d 581 (1953), or seek a declaratory judgment that the subject matter of the proposed ordinance is subject to enactment by initiative.