Smith v. Return Development

2021 UT 10IN THE
SUPREME COURT OF THE STATE OF UTAH
KENT SMITH, CHANDRA SMITH, EDWARD M. DUKE,
SHARON P. DUKE, and TIMOTHY SYNDERGAARD,
Appellees,
0.
DAVID ZOOK, in his capacity as the
City Manager/Recorder/ Local Clerk of Nibley City,
Appellee,
and
RETURN DEVELOPMENT LLC,
Appellant/Intervenor.
No. 20200674
Heard February 17, 2020
Filed April 15, 2021
On Direct Appeal
First District, Cache County
The Honorable Brian G. Cannell
No. 200100186
Attorneys:
Daniel K. Dygert, Logan, for appellees
Eric Todd Johnson, Robert A. Patterson, Salt Lake City,
for appellee
David K. Broadbent, Christopher R. Hogle, Chelsea J. Davis,
Salt Lake City, for appellant/ intervenor
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in
which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE,
and JUSTICE PETERSEN joined.
SMITH v. RETURN DEVELOPMENT
Opinion of the Court
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
{1 Nibley City enacted an ordinance approving a
development project on property owned by Return Development
LLC. Several citizens opposed the ordinance and _ collected
signatures in support of a referendum petition. Some of the
signatures were collected through paper “referendum packets”
presented to voters in person. Others were collected through a
process initiated by a document sent to voters by mail, which
directed them to an online version of the referendum packet.
{2 The Nibley City Recorder rejected the referendum
petition on the ground that the signatures collected in response to
the mailer were not valid, legal signatures. That decision was
overruled by the district court. We reverse. We conclude that the
signatures procured through the mailed document were not valid
because the sponsors failed to “create” a “referendum packet”
that provided “a copy of the referendum petition, a copy of the
law that is the subject of the referendum, and ... signature sheets”
that were bound “together ... in such a way that the packets may
be conveniently opened for signing.” See UTAH CODE § 20A-7-
604(4). And we hold that this statutory requirement was not
altered when the governor suspended enforcement of some
Election Code provisions in an executive order entered in
response to the COVID-19 pandemic. See Utah Exec. Order 2020-
14 (April 3, 2020).
I
{3 The Utah Constitution guarantees the right of voters to
challenge a law by referendum “under the conditions [and] in the
manner ... provided by statute.” UTAH CONST. art. VI, § 1(2)(b).
Our Election Code, in turn, sets forth the conditions and manner
by which voters may initiate and pursue the process for getting a
referendum on the ballot. See UTAH CODE § 20A-7-101 et seq.
44 In the paragraphs below we first outline the statutory
referendum standards that form the background of the case before
us. Then we describe the process that was followed in this case,
culminating in the denial of the referendum petition at issue and
the district court’s decision to overrule that denial on a petition for
extraordinary writ.
A
{5 2021 UT 10Opinion of the Court
referendum petition with the “local clerk,” the election official of
the local government whose law is being challenged. UTAH CODE
§ 20A-7-602. The local clerk has twenty days to determine
“whether the proposed referendum is legally referable to the
voters.” Id. § 20A-7-602.7(1). If the proposed referendum is
deemed to be legally referable, the local clerk “furnish[es] to the
sponsors a copy of the referendum petition and a signature
sheet,” and the sponsors “prepare the referendum for circulation
by creating multiple referendum packets.” Id. § 20A-7-604(2),
(4)(a).
76 To collect the necessary number of signatures, the
sponsors are required to “circulate referendum packets that meet
the form requirements” of the code. Id. § 20A-7-604(1). Sponsors
“may prepare the referendum for circulation by creating multiple
referendum packets.” Id. § 20A-7-604(4)(a). But all such packets
must be made “by binding a copy of the referendum petition, a
copy of the law that is the subject of the referendum, and no more
than 50 signature sheets together at the top in such a way that the
packets may be conveniently opened for signing.” Id. § 20A-7-
604(4)(b). The referendum petition identifies the law being
challenged, indicates that the signers order an election, and
affirms that the signers meet several requirements for signing the
petition. Id. § 20A-7-603(1), (4). The signature sheets include
columns for voters to print their names, sign their names, and
write their address and date of birth. Id. § 20A-7-603(2)(g).
47 Sponsors are also directed to “include, with each packet, a
copy of the proposition information pamphlet provided to the
sponsors.” Id. § 20A-7-604(4)(d). A “proposition information
pamphlet” includes a “a copy of the application for the proposed
... referendum,” a written “argument prepared by the sponsors”
in favor of the proposed referendum, a written “argument
prepared by the county or municipality” in response to the
sponsors’ argument, and a copy of an “initial fiscal impact
statement and legal impact statement.” Id. § 20A-7-401.5(3). The
local election official compiles all these materials to create the
proposition information pamphlet and then gives a copy of the
pamphlet to the sponsors. Id. § 20A-7-401.5(4)(b).
{8 Sponsors must deliver all signed, verified referendum
packets “to the county clerk of the county in which the packet was
circulated before 5 p.m. no later than 45 days after the day on
which the sponsors receive” the referendum petition from the
local clerk. Id. § 20A-7-606(1)(a). Within thirty days, the county
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SMITH v. RETURN DEVELOPMENT
Opinion of the Court
clerk must then “determine whether each signer is a registered
voter,” “certify on the referendum petition whether each name is
that of a registered voter,” and “deliver all of the verified
referendum packets to the local clerk.” Id. § 20A-7-606(3). And
within two days after that, the local clerk is required to determine
whether “the total number of certified names from each verified
signature sheet equals or exceeds the number of names required”
for the referendum to qualify for the ballot—a number
determined by a formula set forth in Utah Code section 20A-7-601
(which is based on the percentage of “active voters” in the county
or city, with the percentage depending on the size of the county or
city). See id. § 20A-7-607(2)(b) (incorporating the requirements of
section 20A-7-601); id. § 20A-7-601 (setting forth requirements for
different classes of counties and cities and “metro township[s]”
based on population).
{9 Some of the above requirements have been affected by an
executive order entered by Governor Gary Herbert on April 3,
2020. Executive Order 2020-14 was issued pursuant to the
governor's authority to “suspend the enforcement” of statutory
requirements where necessary to address a declared emergency.
See id. § 53-2a-209(4). In light of the declared “state of emergency
due to novel coronavirus disease 2019 (COVID-19),” and the
concern that this disease “spreads easily from person to person,
may result in serious illness or death, and has been characterized
by the World Health Organization as a worldwide pandemic,”
this executive order suspends the enforcement of certain elements
of the above-noted requirements of the statutory referendum
process. Utah Exec. Order 2020-14 (April 3, 2020) (suspending
enforcement of parts of thirteen statutory provisions, including
Utah Code sections 20A-7-606(1)(a), 20A-7-603(1)(b), and 20A-7-
606(3)).
410 For example, the executive order suspends the
requirements of Utah Code section 20A-7-603 “to the extent it
requires a referendum sponsor to attach physically a copy of the
law that is the subject of the referendum to each referendum
petition” and “to the extent it requires a signature sheet to be
bound physically.” Id. (emphasis added). It also suspends
enforcement of Utah Code section 20A-7-604 “to the extent it
requires a referendum packet to be bound physically” and “to the
extent it requires a signature sheet to be attached physically to a
referendum packet.” Id. (emphasis added).
Cite as: 2021 UT 10Opinion of the Court
B
{11 In February 2020, the Nibley City Council adopted an
ordinance approving a residential planned unit development on
land owned by Return Development LLC. About a week later,
Nibley residents Kent Smith, Chandra Smith, Edward Duke,
Sharon Duke, and Timothy Syndergaard sought to challenge the
ordinance as sponsors of a referendum petition under the above-
described statutory process. The sponsors submitted their
application to Nibley City Recorder David Zook, the “local clerk”
under the statutory framework.
412 Zook furnished a referendum petition to the sponsors in
accordance with Utah Code section 20A-7-604(2). And _ the
sponsors then prepared “referendum packets” for circulation for
voter signatures, as called for in Utah Code section 20A-7-
604(1) & (4).
413 Initially, the sponsors printed standard, spiral-bound
paper referendum packets and collected signatures through in-
person contact. No one contends that those packets failed to
satisfy the statutory prerequisites for a referendum packet. So we
presume that the packets included “a copy of the referendum
petition, a copy of the law being submitted or referred to the
voters for their approval or rejection, and the signature sheets, all
of which [had] been bound together as a unit.” UTAH CODE § 20A-
7-101(21).
q14 The COVID-19 pandemic then intervened. And _ it
interrupted the sponsors’ efforts—as it did with so many aspects
of so many people’s lives.
q15 The sponsors shifted their approach to gathering
signatures. They prepared a new form of referendum packet and
sought signatures in a new way: They printed and mailed to all
Nibley City residents a two-sided document. See Appendix
(reproducing both sides of the mailer). The front of the document
had a header stating “Please Sign ASAP - Nibley Referendum for
Ordinance 20-04; approval for Firefly Estates high density
development near Firefly Park.” Under that header was a series of
bullet points summarizing the sponsors’ reasons for opposing the
ordinance in question—stating that this is a “high density
development ... approved for over 120 units where zoning
should only allow for 40,” noting that “Firefly Nature Park is
immediately adjacent to the land for this high density
SMITH v. RETURN DEVELOPMENT
Opinion of the Court
development,” and asserting that “[t]his type of development is
not what Nibley citizens envision for the character of our city.”
416 Under those bullet points, the front side of the document
next provided a means for voters to access the “referendum
packet” for this referendum — through a web address or Uniform
Resource Locator (URL),
https: / /nibleycity.com/images/ government/ Firefly Referendum
Packet.pdf. The document also stated that “Governor Herbert has
suspended certain signature gathering requirements due to
pandemic considerations, until Utah’s emergency declaration is
withdrawn.” And it noted that the “signature sheet usually used
for in-person signature gathering is ... on [the] back” of the
mailed document, while encouraging voters to “fill out and
physically sign” the back page of the document, “scan or
photograph the whole form,” and send it “via email” to a listed
email address of one of the sponsors.
{17 The back side of the document included a header stating
that it is a “REFERRAL TO THE PEOPLE OF AN ADOPTED
LOCAL LAW,” which was identified as “Ordinance 20-04:
Residential Planned Unit Development Overlay Zone Application
and Development Agreement For the Proposed Firefly Estates
Development, Located at Approximately 2200 South and 1200
West.” On the signature lines, the document also stated that “[b]y
signing this petition, you are stating that you have read and
understand the law this petition seeks to overturn.”
418 The sponsors gathered numerous in-person signatures
using the paper referendum packet. They also gathered a number
of signatures through the document they mailed to voters.
q19 On March 5, 2020, the sponsors submitted the signed,
verified referendum packets to the county clerk. The county clerk
then certified that the signatures were from registered voters and
delivered the verified referendum packets to the local clerk.
420 The local clerk, Mr. Zook, confirmed that the total number
of certified names on the verified signature sheets was sufficient
to qualify the referendum petition for the ballot. But he
determined that the signatures gathered in response to the mailed
document were not “legal signatures” under Utah law. In Zook’s
view, the mailed document was not a “referendum packet” as
required by statute because it did not contain a copy of the
referendum petition, a copy of the law, a signature sheet, and a
copy of the proposition information pamphlet. And because there
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were not sufficient certified names without those gathered in
response to the mailed document, Zook concluded that the
referendum petition could not qualify for the ballot.
421 The sponsors filed a petition for extraordinary writ in the
district court. See id. § 20A-7-607(4) (authorizing sponsors to
challenge rejection of a referendum petition through an
extraordinary writ). They asserted that the signatures submitted
in response to their mailed document were valid and legal in light
of the terms of Executive Order 2020-14. And they asked the court
to compel Zook to accept the referendum petition and qualify it
for the ballot. Return Development intervened as a matter of right
to defend Zook’s decision.
(22 The district court resolved the case on summary
judgment. It noted that it was undisputed that the sponsors had
failed to procure sufficient signatures through in-person
circulation of the paper referendum packet but that they had
exceeded the statutory standard if signatures procured through
the mailed document were included. And it also indicated that the
facts of relevance to the mailed document were essentially
undisputed—the “mailer included voter information and
provided the requisite signature sheet” and “provided voters”
with a “referendum packet” by identifying a URL that directed
voters to a web page containing the components of the packet in a
PDF file.
423 The court found the referendum petition “sufficient as a
matter of law” under the Election Code as modified by Executive
Order 2020-14. It held that the sponsors had “made available an
electronic copy” of the Nibley City ordinance “and the
proposition information pamphlet.” It concluded that “any
requirement that” sponsors “provide physical copies of all
requisite documents in a bound unit is expressly suspended” by
the executive order. And it granted the sponsors’ motion for
summary judgment and denied Zook’s cross-motion on this basis,
holding that the sponsors thus “have a legal right to submit” the
referendum “to the voters of Nibley” before the ordinance “may
take effect.”
424 Return Development filed this appeal. We review the
district court’s decision on summary judgment for correctness.
Heslop v. Bear River Mut. Ins. Co., 2017 UT 5, § 15, 390 P.3d 314.
SMITH v. RETURN DEVELOPMENT
Opinion of the Court
II
{25 By statute, the sponsors of a referendum petition are
required to circulate “referendum packets” that include “a copy of
the referendum petition, a copy of the law being submitted or
referred to the voters for their approval or rejection, and ...
signature sheets” for voter signatures. UTAH CODE § 20A-7-
101(21). Copies of all of these materials must be “bound together
as a unit.” Id. Sponsors must “create” these packets by “binding”
a “copy” of their essential components “together ... in such a
way” that they “may be conveniently opened for signing” by
voters.” Id. § 20A-7-604(4)(b). A “copy of the proposition
information pamphlet” must also be included if it is compiled. Id.
§ 20A-7-604(4)(d).
426 The enforcement of the above requirements has been
suspended by Executive Order 2020-14 to some extent. But
enforcement is suspended only to the extent provided expressly in
the executive order. If and where the governor has not specifically
suspended enforcement, statutory terms and conditions are still
operative and controlling. See id. § 53-2a-209(4).
427 The executive order speaks only to provisions of the code
“to the extent” they require referendum sponsors “to attach
physically a copy of the law that is the subject of the referendum”
and “to the extent” they require signature sheets or referendum
packets “to be bound plhiysically.” See Utah Exec. Order 2020-14
(April 3, 2020) (emphasis added). It does not alter the more
general requirement that sponsors create a referendum packet
that “bind[s]” together a “copy” of the components of the packet
in a single “unit” to be “conveniently opened for signing” by
voters. UTAH CODE §§ 20A-7-101(21), 20A-7-604(4)(b).
428 These statutory requirements foreclose the central
premise of the district court’s decision. Under terms of the
Election Code unaltered by the executive order, it is not enough
for sponsors merely to make the components of the referendum
packet “available” to voters. A “copy” of each component must be
bound together in a single “unit” to be “opened for signing” by
voters. Id. And the mailer at issue in this case fell short of fulfilling
those requirements.
429 The sponsors characterize the mailer as the referendum
packet. They note that the mailer included a physical signature
sheet and provided electronic access to the other components of
the packet by “direct[ing] voters to a URL link, which took them
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to” a web page that included the referendum petition, the city
ordinance, and the proposition information pamphlet.
430 We agree with the sponsors’ characterization of the
mailer as the referendum packet. And we conclude that the mailer
fulfilled some of the requirements of the Election Code. As the
sponsors note, the signature sheets cannot be disqualified on the
ground that they were signed on paper and _ submitted
electronically. See Utah Exec. Order 2020-14 (April 3, 2020)
(suspending enforcement of the requirement that a signature be
verified by a person “in whose presence the signature sheet [was]
signed”). Yet that alone is insufficient. The Election Code also
requires the sponsors to create a packet that provides a “copy” of
the referendum petition and the ordinance, in a “unit” that is
bound “together” to be “opened for signing” by voters. See UTAH
CODE §§ 20A-7-101(21), 20A-7-604(4)(b).
431 The mailer did not include a “copy” of the referendum
petition and the ordinance. A “copy” is “an imitation, transcript,
or reproduction of an original work.”! It is an actual token of a
reproduced original—not a mere means of accessing it. The mailer
provided a means of access but not a copy. As the sponsors
explain, a voter who received the mailer “needed ... to type the
URL into a computer connected to the internet” in order to access
the referendum petition, city ordinance, and _ proposition
information pamphlet.
432 The mailer thus did not provide a copy or reproduction
of the materials on the web page. It gave a mere means of
accessing them. And that was insufficient.
{33 The executive order did not suspend the requirement that
sponsors create a packet that provides a “copy” of the
components of a referendum packet in a “unit” to be “opened for
signing” by voters. See UTAH CODE §§ 20A-7-101(21), 20A-7-
' Copy, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/copy (last visited Mar. 30, 2021); see also
id. (defining copy as “one of a series of especially mechanical
reproductions of an original impression’); Copy, Cambridge
Dictionary,
https: / /dictionary.cambridge.org/us/ dictionary /english/copy
(last visited Mar. 30, 2021) (defining copy as “something that has
been made to be exactly like something else”).
SMITH v. RETURN DEVELOPMENT
Opinion of the Court
604(4)(b). And this requirement was not fulfilled by the mailer.
The materials on the listed web page were not provided in a
“unit” to be “opened for signing” by voters because voters had to
take an additional, proactive step to access those materials instead
of simply opening the unit that was provided by the sponsors.
934 In a pre-pandemic world, the sponsors of a referendum
petition would not have been allowed to disseminate paper
signature sheets and tell voters where they could find a copy of
the referendum packet materials on a public website. The
materials on a website would certainly be “made available” to
voters. But we would not say that a person who provided a mere
URL or web address to voters has provided a “copy” of those
materials in the referendum packet “unit” to be “opened” by the
potential signer. That same conclusion holds here. The mailer in
question did not provide a reproduction or copy of the
components of the referendum packet in a single unit to be
opened by voters. It instead provided information that voters
could use to access those components through proactive efforts of
their own. And the mailer thus fell short under our law.”
435 The sponsors claim that the mailer “is no different than”
an email sent to voters with “an attachment” containing all of the
components of a referendum packet. But such an email arguably
is different—and conceivably could comply with the statute. An
email with an attachment containing the full referendum packet
could be viewed as giving voters a copy or reproduction of all of
the components of a referendum packet together in a single “unit”
to be “opened” by voters “for signing.” UTAH CODE §§ 20A-7-
101(21), 20A-7-604(4)(b). But the mailer did not do that. At most it
* The sponsors cite a memorandum from the Utah Director of
Elections for their assertion that a referendum sponsor is required
only to “send or make available an electronic copy of the
referendum packet to any interested voter, so long as it ‘includes’
all of the required documents.” But this memorandum lacks the
force of law. And we repudiate it to the extent it could be read to
override provisions of the Election Code that are not altered by
the executive order.
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Cite as: 2021 UT 10Opinion of the Court
gave voters access to the required components, to be reviewed
through proactive efforts by voters. That was insufficient.
{36 We reverse on this basis. And we accordingly hold that
the sponsors’ petition for extraordinary writ fails as a matter of
law.
Il
437 The sponsors of the referendum petition in question went
to great lengths to procure voter support for their challenge to the
Nibley City ordinance. And they did so at a time of great
challenge—as reflected in the terms of Executive Order 2020-14.
The petition for extraordinary writ, moreover, raised some
important legal questions at the intersection of the Election Code
and Executive Order 2020-14.
438 We thus commend the sponsors for their diligent efforts.
But we reverse the decision granting the sponsors’ motion for
summary judgment because we conclude that the sponsors’
referendum packet fell short of fulfilling the requirements of the
Election Code— even as altered by the executive order.
3 Because we reverse on this ground we stop short of resolving
an alternative argument for reversal— the assertion that the mailer
presented bullet-points of advocacy in favor of the referendum
that are not in line with the terms of and conditions for a
“proposition information pamphlet.”
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SMITH v. RETURN DEVELOPMENT
Opinion of the Court
APPENDIX I
Please Sign ASAP - Nibley Referendum for Ordinance =
20-04; approval for Firefly Estates high density “eae
development near Firefly Park —_—
* Ahigh density development was approved for aver 120 units where zoning should
only allow for 40.
* Local schoals could have three times greater impact from high density than the low seeeweneeel
density for which it is zoned.
« This type of development is not what Nibley citizens envision for the character of our Local
city. Postal Customer
« Firefly Nature Park is immediately adjacent to the land for this high density
development.
* No tax increase will occur as a result of this high density development being denied,
* Financial benefits to the city would still be possible under a low density
development, although to a lesser extent,
+10 ECRWSS**
What are the details?
+ See URL for referendum packet below. Signature gathering efforts must direct voters to this packet so they can make an informed decision.
* https://nibleycity.com/images/government/FireflyReferendumPacket pdf
Who can sign?
* Must be a resident of Nibley. Having recently voted is not a requirement.
* Must be a registered voter, or complete registration by the May 13th deadline for signature collection (see following URL for
voter registration).
e = https://secure.utah.gov/voterreg/index.html
How do! submit my signature? (It’s easy!)
* Governor Herbert has suspended certain signature gathering requirements due to pandemic considerations, until Utah's emergency declaration
is withdrawn.
* The same signature sheet usually used for in-person signature gathering is to be used and is on back
You and other voters in your household can fill it out and physically sign it, then scan or photograph the whole form.
«The image can then be sent via email to edwardmduke@aol.com
.
Please share with all your friends and neighbors in Nibley so this important matter can be put to a vote of the people!
ooo083
REFERRAL TO THE PEOPLE OF AN ADOPTED LOCAL LAW, WHICH IS;
‘Ordinance 20-04: Residential Planned Unit Development Overlay Zone Application and Development Agreement For the Proposed Firefly Estates
Development, Located at Approximately 2200 South and 1200 West
| WARNING: It is a class A misdemeanor for an individual to sign a referendum petition with any other name than the individual's own name, or to knowingly sign the
individual's name more than once for the same measure, or to sign a referendum petition when the individual knows that the individual is not a registered voter and
|_knowis that the individual does nat intend to become registered to wote before the certification of the petition names by the county clerk.
| haagstared Voters Printed Name Signature of Registered Voter | som Street Address, City, Zip Code | aoe
T T
By signing this petition, the law this petition seeks to overtur = —
|
By signing this petition, you are stating tha ithe law this petition seeks to averturn,
|
nn [
By signing this petition, you are stating that you have fead and under seeks 100
By signing tus putition, you are stating that yo and fhe law thik tn
** girth date or age information is not required, but it may be used to verlfy your identity with ignature may not be verified as a valid
signature if you change your addi pe are verified or if you pr nat match your water registration records.
ooo084
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