Cook v. Bell

This opinion is subject to revision before final
publication in the Pacific Reporter
2014 UT 46
IN THE
S UPREME C OURT OF THE S TATE OF U TAH
MERRILL COOK , PAUL BRUGGER, and MARA BRENENSTALL,
Appellants,
v.
LT . GOVERNOR GREG BELL and SALT LAKE COUNTY CLERK ’S OFFICE ,
Appellees.
No. 20120748
Filed October 24, 2014
Third District, Salt Lake
The Honorable Randall N. Skanchy
No. 120904608
Attorneys:
Merrill Cook, Paul Brugger, Mara Brenenstall,
appellants pro se
Sean D. Reyes, Att’y Gen., Thom D. Roberts,
Asst. Att’y Gen., Melanie F. Mitchell, Salt Lake City,
for appellees
JUSTICE DURHAM authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING ,
and JUSTICE PARRISH concur.
JUSTICE LEE filed an opinion concurring in the judgment.
JUSTICE DURHAM , opinion of the Court:
INTRODUCTION
¶1 During the 2011 legislative session, the Utah legislature
passed Senate Bill 165 (S.B. 165), altering the requirements for
placing an initiative on the ballot. After an unsuccessful attempt to
place a local initiative on the ballot, the sponsors of the initiative
challenged several provisions of S.B. 165, contending the
amendments violate the right to initiative and uniform operation of
laws provisions of the Utah Constitution and the Free Speech Clause
of the federal Constitution. The district court found that the
amendments did not violate any of these constitutional provisions.
We affirm.
COOK v. BELL
Opinion of the Court
BACKGROUND
¶2 Appellants Mara Brenenstall, Paul Brugger, and Merrill
Cook (collectively, initiative proponents) are sponsors of an
initiative petition entitled “Lawful Employment Ordinance,” which
would require Salt Lake County employers to comply with an “E-
verify” requirement aimed at preserving jobs in Utah for legal
residents. After unsuccessful attempts by the initiative proponents
to secure the necessary support from the legislature, he sought to
place the ordinance on the 2012 general election ballot in Salt Lake
County. The initiative proponents filed an initiative application
with the Salt Lake County Clerk’s Office in June 2011, and used
volunteers to collect signatures through April 2012. The county
clerk, however, determined that there were not enough signatures
to place the Lawful Employment Ordinance on the 2012 general
election ballot.
¶3 Several months before the initiative proponents filed the
application for petition, the state legislature modified the
requirements for placing a local initiative on the ballot. Alleging that
these amendments resulted in his inability to get enough signatures
to place the Lawful Employment Ordinance on the 2012 ballot, the
initiative proponents filed a lawsuit against Lieutenant Governor
Greg Bell and Salt Lake County Clerk Sherrie Swenson (collectively,
the State), seeking a declaration that two of these amended
provisions were unconstitutional.
¶4 The initiative proponents’ first challenge was to the
number of signatures required to place the initiative on the ballot.
Utah Code section 20A-7-501(1)(a) was modified to require initiative
sponsors to gather “signatures equal to . . . 10% of all the votes cast
in the county, city, or town for all candidates for President of the
United States at the last election at which a President of the United
States was elected,” rather than an equal percentage of votes cast in
Utah’s most recent gubernatorial election as previous iterations of
the law required. 2011 Utah Laws 215. The initiative proponents
claimed that the 2011 amendment unconstitutionally increased the
number of required signatures in Salt Lake County from
approximately twenty-three thousand to approximately thirty-nine
thousand.
¶5 Second, the initiative proponents challenged the amended
provision requiring initiative sponsors to consign the completed
initiative packet and sufficient signatures to the county clerk’s office
by “the sooner of . . . (A) 316 days after the day on which the
application is filed; or (B) the April 15 immediately before the next
2
Cite as: 2014 UT 46
Opinion of the Court
regular general election immediately after the application is filed.”
UTAH CODE § 20A-7-506(1)(a). Prior to the 2011 amendment,
proponents of statewide initiatives had one year after filing an
application to gather the required signatures, while proponents of
local initiatives had an unlimited amount of time to gather
signatures so long as they were submitted to the county clerk’s office
by April 15 of the year in which the initiative was to go on the ballot.
UTAH CODE §§ 20A-7-202(4)(a), 20A-7-506(1) (2010). The 2011
amendments standardized these diverse timetables, requiring both
statewide and local initiative sponsors to gather the required
number of signatures by the sooner of (a) 316 days after filing an
application or (b) the April 15 immediately before the next regular
general election. UTAH CODE §§ 20A-7-206(1)(a), 20A-7-506(1)(a).
¶6 On cross-motions for summary judgment, the district court
denied the initiative proponents’ declaratory relief claims. The
initiative proponents appealed, challenging the constitutionality of
the 2011 amendments to the local initiative requirements.
STANDARD OF REVIEW
¶7 “Because the issue of constitutionality presents a question
of law, we review the trial court’s ruling for correctness and accord
it no particular deference.” Ryan v. Gold Cross Servs., Inc., 903 P.2d
423, 424 (Utah 1995) (internal quotation marks omitted).
ANALYSIS
¶8 The initiative proponents assert that the 2011 amendments
to the local initiative requirements are unconstitutional on three
separate grounds: first, the challenged provisions violate the
fundamental right to initiative granted under article VI, section 1 of
the Utah Constitution; second, the provisions violate the uniform
operation of laws under article I, section 24 of the Utah Constitution;
and finally, the provisions unconstitutionally infringe upon the right
to free speech under the First Amendment to the U.S. Constitution.
We disagree with these assertions.
I. THE RIGHT TO INITIATIVE
¶9 Article VI, section 1 of the Utah Constitution establishes the
right of voters to legislate via local initiatives:
The legal voters of any county, city, or town, in the
numbers, under the conditions, in the manner, and
within the time provided by statute, may . . . initiate any
desired legislation and cause it to be submitted to the
people of the county, city, or town for adoption upon a
3
COOK v. BELL
Opinion of the Court
majority vote of those voting on the legislation, as
provided by statute . . . .
UTAH CONST . art. VI, § 1(2)(b). While we recognize that the “reserved
right and power of initiative is a fundamental right,” Gallivan v.
Walker, 2002 UT 89, ¶ 24, 54 P.3d 1069, it “is not unfettered, but
comes with a built-in limitation,” Utah Safe to Learn-Safe to Worship
Coal., Inc. v. State, 2004 UT 32, ¶ 28, 94 P.3d 217. The constitutional
provision establishing the right to initiative also qualifies that right
by granting the legislature power to regulate “the numbers, . . . the
conditions, . . . the manner, and . . . the time” by which initiatives
may be placed on the ballot. UTAH CONST . art. VI, § 1(2)(b).
¶10 Thus, although the legislature is precluded from passing
laws that “unduly burden or diminish the people’s right to initiate
legislation,” Gallivan, 2002 UT 89, ¶ 28, “[t]his does not mean . . . that
the legislature may never pass regulations that have the effect of
making it more difficult to enact legislation by initiative,” Safe to
Learn, 2004 UT 32, ¶ 29. Statutory regulations of the right to initiative
are unconstitutional only if they are unduly burdensome. Id. 34–5.
¶11 The initiative proponents point to the language in the
district court’s opinion that recognizes “there is a point at which the
ratcheting up of required signatures and ratcheting down of time in
which to gather those signatures reaches a point where few or no
citizen’s group could meet the criteria.” In connection with this
language, the initiative proponents argue for an interpretation of
“unduly burdensome” that triggers a constitutional violation
whenever a law has the effect of actually preventing a party from
reaching the ballot with a specific initiative. They further note that
while the lower court has found each provision of the 2011
amendments to be constitutional, individually permissible
restrictions can become unduly burdensome when considering their
combined effect.
¶12 As noted above, the right to initiative in Utah is a qualified
right, subject to legislative regulation. Thus, while residents of Utah
may not be statutorily deprived of the right to initiative, the
legislature does possess the power to define the boundaries
surrounding its practice, which may have the effect of rendering the
ballot-initiative process more difficult. However, increasingly
stringent requirements may, individually or in the aggregate, rise to
an unconstitutional level if they unduly burden the right of Utah’s
citizens to initiate legislation. See Gallivan, 2002 UT 89, ¶ 27. To avoid
this danger, courts weigh the burdens placed on initiative
proponents against the legislature’s purpose in enacting the
4
Cite as: 2014 UT 46
Opinion of the Court
regulations to determine whether an enactment unduly burdens the
right to initiative. As we stated in Safe to Learn:
In making this determination, a court should assess
whether the enactment is reasonable, whether it has a
legitimate legislative purpose, and whether the
enactment reasonably tends to further that legislative
purpose. In evaluating the reasonableness of the
challenged enactment and its relation to the legislative
purpose, courts should weigh the extent to which the
right of initiative is burdened against the importance of
the legislative purpose.
2004 UT 32, ¶ 35.
A. Reasonableness
¶13 When considering the reasonableness of a statutory
provision, we assess both the type and the magnitude of the
restriction in burdening the right to initiative. The Utah Constitution
explicitly permits the legislature to impose four types of regulations
on the right to initiative, namely, regulations that determine “the
numbers, . . . the conditions, . . . the manner, and . . . the time”
whereby legislation may be initiated by direct vote of the people.
UTAH CONST . art. VI, § 1(2)(b). Reasonable regulations falling within
the above four categories have generally been upheld as
constitutional.
¶14 For example, a statute defining the number of signatures
required was upheld by this court where sponsors were required to
gather ten percent of the number of votes cast in twenty-six of Utah’s
senatorial districts in the most recent gubernatorial election. Safe to
Learn, 2004 UT 32, ¶ 43.
¶15 Similarly, provisions regulating the manner of obtaining
signatures have been upheld as reasonable where petition sponsors
were limited to utilizing state residents to collect signatures, Initiative
& Referendum Inst. v. Jaeger, 241 F.3d 614, 617 (8th Cir. 2001), where
sponsors were prohibited from paying circulators a commission for
each signature obtained, id. at 618, where circulators were required
to be of legal voting age, Am. Constitutional Law Found., Inc. v. Meyer,
120 F.3d 1092, 1101 (10th Cir. 1997), and where circulators were
required to sign affidavits of compliance prior to circulating, id. at
1106.
¶16 Statutory conditions found to permissibly regulate the right
to initiative include requiring a quantity of signatures from an
established number of elective regions within a state, Safe to Learn,
5
COOK v. BELL
Opinion of the Court
2004 UT 32, ¶ 43, establishing a process whereby initiative signers
may remove their name and support from the initiative, id. ¶¶ 44,
49, limiting each initiative to a single subject, PEST Comm. v. Miller,
626 F.3d 1097, 1107–08 (9th Cir. 2010), requiring a description of the
effect of the initiative to appear on the initiative, id., and requiring
the subject of the initiative to appear in its title, Campbell v. Buckley,
203 F.3d 738, 746–747 (10th Cir. 2000).
¶17 This court has upheld a statute providing a one-year
allotment of time within which signatures must be gathered, noting
that prior initiative sponsors have qualified for the ballot within six
weeks to five months. Safe to Learn, 2004 UT 32, ¶¶ 51–52.
¶18 Much of the jurisprudence in this area has proceeded on a
case-by-case categorical analysis of whether a specific type of
restriction is unduly burdensome. But any restriction may on its
own, or in connection with other requirements, rise to the level of
being an undue burden if legislative requirements vis-à-vis the
number, manner, condition, or time are unreasonably restrictive. In
contemplating the quantitative level at which restrictions cross the
threshold from constitutional regulation to an unconstitutional
abrogation of the fundamental right to initiative, courts consider the
qualitative net effect of all the relevant statutory restrictions.
Whereas in isolation a provision may not rise to the level of being
unduly burdensome, the combined effect of multiple, otherwise
permissible, provisions may cross that threshold.
¶19 This case presents a series of statutes that require local
initiative proponents to collect signatures equal to ten percent of the
votes cast in the most recent presidential election by April 15 of the
election year or within 316 days, whichever occurs first. These
provisions establish the number of signatures required and the time
frame within which they must be gathered, both of which are within
the enumerated restrictions the state legislature may impose upon
the right to initiative. UTAH CONST . art. VI, § 1(2)(b).
¶20 As to the numbers requirement of the amended local
initiative statute, it retained the ten-percent-of-votes-cast threshold
but changed the referenced office from the previous gubernatorial
election to the previous presidential election. In order to assess
whether the amended statute unreasonably increases the number of
signatures required, we therefore would need to evaluate historical
evidence of the number of votes cast for each of these offices in
previous elections. But the initiative proponents do not cite any
record evidence of the number of votes cast in prior elections, nor
have we uncovered such evidence from our independent review of
6
Cite as: 2014 UT 46
Opinion of the Court
the record. In its ruling on the cross-motions for summary judgment,
the district court noted that the initiative proponents claimed that
the amended statute increased the number of signatures required
from approximately twenty-three thousand to approximately thirty-
nine thousand. Absent any record evidence, however, we cannot
evaluate this claim. Nor can we determine whether any variance in
the number of signatures required was entirely due to the fact that
Utah had recently held its first special gubernatorial election outside
of the presidential election cycle, which might have led to an
artificially low number of votes cast in the previous gubernatorial
race.
¶21 Without any evidence of the practical effect of the
amendment, we are left with only the language of the statute. And
on its face, we cannot say that requiring signatures equal to ten
percent of the votes cast in the previous presidential election rather
than ten percent of the votes cast in the prior gubernatorial election
amounts to a per se unreasonable restriction on the right to
initiative.
¶22 We next examine whether the shortened time requirement
imposed by the amended statute unreasonably burdens citizens
seeking to place an initiative on the ballot. Although the amended
provisions require circulators to collect the required signatures in
forty-nine fewer days than we found to be appropriate in Safe to
Learn, there is no evidence that the time restriction amounts to an
undue burden. The Tenth Circuit, in ruling on a restriction limiting
the duration of initiative petition drives to six months, held that
while “some measures might fare better under a longer or
indeterminate period, the current deadline [of six months] is not a
significant burden on the ability of organized proponents to place a
measure on the ballot.” Am. Constitutional Law Found., 120 F.3d at
1099. Further, there is no evidence that the initiative proponents’
failure to acquire sufficient signatures via an unsponsored and
volunteer-driven petition circulation signifies that no unsponsored
and volunteer-driven petition would be able to succeed. Rather, it is
possible that the Legal Employment Ordinance simply did not enjoy
much popular support. Again, the record contains no evidence on
this subject.
¶23 The initiative proponents further argue that the statute has
the effect of forcing initiative circulators to gather most of their
signatures during the oppressive winter months, especially at the
end of the drive where the momentum should be the greatest.
However, a careful reading of the statute demonstrates that initiative
7
COOK v. BELL
Opinion of the Court
sponsors may select any 316-day period within the two years prior
to the April 15 preceding the election. See UTAH CODE § 20A-7-
506(1)(a). Thus, an initiative sponsor may file an application on
January 1, receive the approval and packets in February, and have
the warm weather of April through October to collect signatures and
gather momentum.
¶24 We hold, therefore, that the burdens imposed by the
amendments to Utah’s initiative process—either individually or in
the aggregate—are not unreasonable restrictions under article VI,
section 1 of the Utah Constitution.
B. Legitimate Legislative Purpose
¶25 We now consider whether an improper legislative purpose
in passing the 2011 amendments may void the challenged
provisions. Generally, “[t]he authority of the legislature . . . . is
limited . . . to the role of providing for the orderly and reasonable
use of the initiative power.” Sevier Power Co. v. Bd. of Sevier Cnty.
Comm’rs, 2008 UT 72, ¶ 10, 196 P.3d 583. Legitimate legislative
purposes include “deterring fraud, ensuring the efficiency of the
process, [and] ensuring a modicum of numerical support for an
initiative.” Gallivan, 2002 UT 89, ¶ 53. “The legislature may not,
however, impose discriminatory restrictions on the initiative right
. . . simply for the sake of making it harder to [place an initiative on
the ballot] and restricting the initiative power.” Id.
¶26 No showing of such an illegitimate legislative purpose has
been made here. As the State notes in its briefing, Utah had held a
special interim election to replace Governor Huntsman, who had
recently been appointed as United States Ambassador to China. The
State claims that as a result of this irregular occurrence, and under
the prior iteration of section 20A of the Utah Code, a significantly
reduced number of signatures would have been required in 2011 for
an initiative to reach the ballot than in prior years. It is reasonable to
conclude that the legislature, interested in providing for the orderly
and reasonable use of the initiative power, acted to maintain a
comparable standard of numerical support by which initiatives
might reach the ballot during this period. This is a legitimate
legislative purpose.
¶27 In weighing the reasonableness of the burdens placed upon
the initiative right against the legislative purpose for the restrictions,
we conclude that the challenged provisions are reasonable, both
individually and in the aggregate, and are supported by a legitimate
legislative purpose. These provisions reasonably serve to maintain
a consistent threshold of minimal support required before legislation
8
Cite as: 2014 UT 46
Opinion of the Court
may be placed on the ballot via initiative, promoting an efficient and
orderly initiative process. We therefore hold that the challenged
provisions do not unduly burden the right to initiative.
II. UNIFORM OPERATION OF LAWS
¶28 The initiative proponents argue that legislation reducing
the number of days to gather signatures and (allegedly) increasing
the number of signatures required disadvantages volunteer citizen
groups. They assert that these regulations favor well-funded
initiative efforts, which can hire signature gatherers, over unfunded
initiatives, which rely exclusively on volunteer signature gatherers.
The initiative proponents contend this disparate impact violates the
uniform operation of laws provision of the Utah Constitution.
¶29 Article I, section 24 of the Utah Constitution guarantees
that “[a]ll laws of a general nature shall have uniform operation.”
UTAH CONST . art. I, § 24. Under this language, “a statutory provision
may be unconstitutional if it creates a classification that is
discriminatory; that is, if it creates a classification that treats the
members of the class or subclasses disparately.” Utah Safe to Learn-
Safe to Worship Coal., Inc. v. State, 2004 UT 32, ¶ 31, 94 P.3d 217
(internal quotation marks omitted). Further, under the Utah
Constitution, a statute may be held unconstitutional both on its face
and for any de facto disparate effects on similarly situated parties.
Lee v. Gaufin, 867 P.2d 572, 577 (Utah 1993) (“For a law to be
constitutional under [a]rticle I, section 24, it is not enough that it be
uniform on its face. What is critical is that the operation of the law be
uniform. A law does not operate uniformly if persons similarly
situated are not treated similarly . . . .” (internal quotation marks
omitted)).
¶30 Violations of the uniform operation of laws clause may
trigger varying degrees of scrutiny. Safe to Learn, 2004 UT 32, ¶ 31.
The level of scrutiny applied turns on whether “a legislative
enactment implicates a fundamental or critical right or creates
classifications which are considered impermissible or suspect in the
abstract.” Gallivan v. Walker, 2002 UT 89, ¶ 40, 54 P.3d 1069 (internal
quotation marks omitted). Where a statutory provision creates an
impermissible classification, heightened scrutiny is appropriate. See
id.
¶31 We decline to recognize the inability to employ paid
circulators as defining a constitutionally significant classification. In
Safe to Learn, appellants challenged a statute requiring all ballot
initiatives to receive ten percent of votes cast in the prior
gubernatorial election in twenty-six of Utah’s twenty-nine senatorial
9
COOK v. BELL
Opinion of the Court
districts within one year of filing an application. 2004 UT 32, ¶ 4.
Although the contested requirements necessitated an increased
amount of organization, labor, and money to gather signatures
across the entire state, we concluded that neither the senatorial
district requirement, nor the one-year requirement, created any
classifications, “but appl[ied] equally to all Utah citizens.” Id. ¶ 33.
A similar logic applies here. Although the strictures of the statutory
provisions may render the initiative process more accessible to those
with greater resources, they apply uniformly to all citizens and do
not violate article I, section 24 of the Utah Constitution.
III. FREEDOM OF SPEECH
¶32 The initiative proponents argue that the challenged
provisions violate their right to “core political expression” as
protected by the First Amendment’s guarantee of free speech. In
essence, the initiative proponents assert that Utah’s initiative
regulations improperly hinder their ability to express their political
message by means of a ballot initiative. We disagree.
¶33 Numerous cases adjudicated by this court and federal
courts have repeatedly distinguished between regulation of the
initiative process and discouraging or preventing speech regarding
the subject of the initiative. See, e.g., Utah Safe to Learn-Safe to Worship
Coal., Inc. v. State, 2004 UT 32, ¶¶ 56–57, 94 P.3d 217 (distinguishing
statutes that violate the First Amendment by limiting speech from
statutes that constitutionally limit the success of initiative petitions
via procedural restrictions); Initiative & Referendum Inst. v. Walker,
450 F.3d 1082, 1099 (10th Cir. 2006) (“[T]he First Amendment
protects political speech incident to an initiative campaign,” but not
“the right to make law[] by initiative.”); Save Palisade Fruitlands v.
Todd, 279 F.3d 1204, 1211 (10th Cir. 2002) (“[T]he right to free speech
. . . [is] not implicated by the state’s creation of an initiative
procedure, but only by the state’s attempts to regulate speech
associated with an initiative procedure . . . .”); Skrzypczak v. Kauger,
92 F.3d 1050, 1053 (10th Cir. 1996) (initiative proponent’s desire to
place an initiative on the ballot not protected by the First
Amendment because removing the initiative from the ballot did “not
prevent[] [the proponent] from speaking on any subject”); Republican
Party of N.C. v. Martin, 980 F.2d 943, 960 (4th Cir. 1993) (“The First
Amendment guarantees the right to participate in the political
process. It does not guarantee political success.”).
¶34 In Safe to Learn, an initiative proponent raised a First
Amendment claim similar to the claim in this case. There, the
initiative proponent argued that the legislature’s limits on the right
10
Cite as: 2014 UT 46
JUSTICE LEE, concurring in the judgment
to initiative “impose[d] severe restrictions upon rights of free speech
and political expression, and thus [were] subject to strict scrutiny
under federal free speech analysis.” 2004 UT 32, ¶ 53 (internal
quotation marks omitted). This court held that
the provisions of the initiative statute d[id] nothing to
restrict speech. Initiative proponents [were] free, and
even encouraged, to disseminate their message
throughout the state. Nothing in the initiative statute
serve[d] to limit the number of messengers available to
engage in this sort of political expression. While the
regulations may arguably [have made] it more difficult
to place an initiative on the ballot, nothing . . . suggest[s]
that there is a protected right to have a particular
initiative on the ballot.
Id. ¶ 57 (fifth and sixth alterations in original) (internal quotation
marks omitted). We affirm our ruling in Safe to Learn, holding that
core political expression, as protected by the First Amendment,
distinguishes political expression from political activity. See id.
¶¶ 56–57. Under the 2011 amendments, the initiative proponents
were free to print posters, hold rallies, demonstrate, discuss,
canvass, campaign, and raise awareness for an E-verify requirement
initiative before, during, and after the statutory 316-day period. First
Amendment jurisprudence in this case does not guarantee unlimited
participation in political activity, nor does it establish a right to
political success. Rather, it protects individuals from regulations that
directly discourage or prohibit political expression.
¶35 We therefore find no First Amendment violation in the
March 2011 amendments challenged by the initiative proponents.
CONCLUSION
¶36 We hold that the challenged amendments contained in
S.B. 165 do not violate the Utah Constitution’s guarantees of the
right of the people to initiate legislation or of the uniform operation
of the law. Further, the provisions do not violate the federal First
Amendment. Thus, we affirm the judgment of the district court.
____________
JUSTICE LEE, concurring in the judgment:
¶37 I concur in the court’s judgment upholding the
constitutionality of the ballot initiative amendments adopted in
Senate Bill 165. But I disagree with the standard set forth in the
11
COOK v. BELL
JUSTICE LEE, concurring in the judgment
majority opinion and write separately to articulate the standard that
I would apply.
¶38 The controlling constitutional provision at issue here is
unusual. It prescribes both a right to an initiative and a legislative
power to regulate the exercise of that right. Thus, under article VI
section 1 of the Utah Constitution, our citizens have a right to
“initiate any desired legislation,” but the legislature also possesses
the express authority to regulate the “numbers,” “conditions,”
“manner,” and “time” for placement of initiatives on the ballot.
UTAH CONST . art. VI, § 1(2)(b). We must honor both provisions. To
do so, in my view, we must (1) vigorously protect the individual
right to “initiate any desired legislation,” by upholding ballot access
for any initiatives plausibly within the legislative power as defined
in Carter v. Lehi City, 2012 UT 2, 269 P.3d 141; and also (2) defer to the
legislature’s exercise of its delegated authority to regulate as to
numbers, conditions, manner, and time.
¶39 To reconcile these two mandates, I would defer to the
legislature’s regulation of the initiative process except in
circumstances where such regulation forecloses any meaningful
possibility for the people to exercise the power reserved to them in
article VI, section 1. In other words, in my view we should yield
broad deference to the legislature to determine how best to regulate
the initiative process (as to numbers, conditions, manner, and time).
But that deference should yield to the right of the people to initiate
desired legislation in circumstances where the legislature’s
regulation forecloses any meaningful channels for the actual
vindication of the people’s reserved power.
¶40 This standard seems to me to follow from the twofold
structure of article VI, section 1. By generally deferring to the
legislature, we respect the constitution’s express reservation of
legislative power. And by withholding deference in cases where the
legislature’s regulation blocks the people’s access to meaningful
channels for exercising their reserved power, we also respect the
constitutional reservation of this right.
¶41 The standard applied by the majority seems to me to be
incompatible with the text and structure of article VI, section 1. In
light of the express reservation of the legislature’s prerogative of
regulating the initiative process, I cannot see how the courts can assert
the authority to (a) assess the extent of any “undue burden” imposed
by the legislature’s regulation of the initiative process, (b) evaluate
whether any legislative regulation is “reasonable” or “reasonably”
advances a legislative purpose, or (c) “weigh the extent to which the
12
Cite as: 2014 UT 46
JUSTICE LEE, concurring in the judgment
right of initiative is burdened against the importance of the
legislative purpose.” Supra ¶¶ 10, 12, 13—24 (applying and
extending the standard set forth in Utah Safe to Learn-Safe to Worship
Coal., Inc. v. State, 2004 UT 32, 94 P.3d 217). As a general rule, these
are questions for the legislature. Under a constitutional provision
recognizing legislative authority to regulate the terms and
conditions of the exercise of the initiative power, the courts are in no
position to second-guess the legislature’s judgments as to the weight
of competing considerations, or the reasonableness of the
legislature’s judgments.
¶42 Again, deference to the legislature should not be absolute.
But in light of the text and structure of the constitution, we cannot
properly assess the legislature’s judgments de novo. We should step
in only in the rare circumstance in which the legislature’s attempts
to regulate process effectively abrogate the reserved right of the
people to initiate desired legislation.
¶43 The majority’s standard—articulated in Safe to Learn and
extended today—appears to have been imported from state and
federal equal protection and due process precedent.1 But there are no
equal protection or due process issues before us today.2 This case
1
See Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (stating that “the
Equal Protection Clause requires only that the classification
rationally further a legitimate state interest”); Planned Parenthood of
Se. Pa. v. Casey, 505 U.S. 833, 874 (1992) (adopting an “undue
burden” standard for due process analysis under which “[o]nly
where state regulation imposes an undue burden . . . does the power
of the State reach into the heart of the liberty protected by the Due
Process Clause”); Mountain Fuel Supply Co. v. Salt Lake City Corp., 752
P.2d 884, 890 (Utah 1988) (under our state equal protection analysis,
a statute is constitutional if its classification is “a reasonable one and
bears a reasonable relationship to the achievement of a legitimate
legislative purpose”).
2
Nor is there a basis for the court’s standard in the First
Amendment. Established free speech jurisprudence prescribes
heightened scrutiny only for laws regulating political speech by
initiative proponents; the First Amendment has no application to laws
regulating the initiative lawmaking process itself. “The distinction is
between laws that regulate or restrict the communicative conduct of
persons advocating a position in a referendum, which warrant strict
scrutiny, and laws that determine the process by which legislation
(continued...)
13
COOK v. BELL
JUSTICE LEE, concurring in the judgment
arises exclusively under the Initiative Clause of the Utah
Constitution. And that clause, as noted above, protects both the
people’s initiative power and the legislature’s authority to regulate
the initiative process.
¶44 I would apply this standard to our evaluation of this case.
And I would affirm on the ground that plaintiffs have failed to
present any evidence that the restrictions imposed by the legislature
in the exercise of its constitutional prerogative to regulate the
numbers, conditions, manner, or time for the ballot initiative process
effectively precluded them from getting their initiative on the ballot.
See supra ¶ 21 (noting that plaintiffs have not presented “any
evidence of the practical effect” of the legislation in question).
2
(...continued)
is enacted, which do not.” Initiative & Referendum Inst. v. Walker, 450
F.3d 1082, 1099–100 (10th Cir. 2006); see also Save Palisade Fruitlands
v. Todd, 279 F.3d 1204, 1211 (10th Cir. 2002) (“[T]he right to free
speech and the right to vote are not implicated by the state’s creation
of an initiative procedure, but only by the state’s attempts to
regulate speech associated with an initiative procedure . . . .”);
Biddulph v. Mortham, 89 F.3d 1491, 1497 (11th Cir. 1996) (“The cases
do say that heightened First Amendment scrutiny should be applied
to certain state regulations of ballot initiatives, but they distinguish
between regulation of the circulation of petitions—which is ‘core
political speech’—and a state’s general initiative regulations . . . .”).
14