Croft v. Morgan County

2021 UT 46IN THE
SUPREME COURT OF THE STATE OF UTAH
WHITNEY CROFT, ROBERT BOHMAN, BRANDON PETERSON, SHELLEY
PAIGE, and DAVID PIKE,
Appellants,
v.
MORGAN COUNTY and STACY NETZ CLARK, solely in her official
capacity as Morgan County Clerk,
Appellees,
and
WASATCH PEAKS RANCH, LLC,
Intervenor and Appellee.
No. 20200373
Heard May 10, 2021
Filed August 12, 2021
On Direct Appeal
Second District, Morgan County
The Honorable Noel S. Hyde
No. 190500095
Attorneys:
Troy L. Booher, Beth E. Kennedy, Taylor P. Webb, Salt Lake City,
Richard H. Reeve, Riverdale, for appellants
Jann Farris, Morgan, for appellees Morgan County and Stacy Netz
Clark
Mark R. Gaylord, Nathan R. Marigoni, Salt Lake City, for
intervenor/appellee Wasatch Peaks Ranch, LLC
JUSTICE HIMONAS authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, JUSTICE
PEARCE, and JUSTICE PETERSEN joined.
JUSTICE HIMONAS, opinion of the Court:
INTRODUCTION
¶1 Appellants are registered voters and residents of Morgan
County who filed an application to submit an ordinance
approving the development of a ski resort community to a
referendum. After the County Clerk rejected the referendum
CROFT v. MORGAN COUNTY
Opinion of the Court
application, appellants challenged the county‘s decision in the
district court. The district court dismissed their challenge for lack
of jurisdiction based on its reading of Utah Code section 20A-7-
602.8(4)(a), which allows a sponsor to challenge such a rejection in
the district court if the sponsor is ―prohibited from pursuing‖ an
extraordinary writ in the Supreme Court. The district court
reasoned that appellants were not ―prohibited‖ from pursuing an
extraordinary writ in this court but, instead, had simply declined
to do so.
¶2 We disagree. The district court erred in its interpretation
of section 602.8(4)(a) and in its conclusion that it lacked
jurisdiction. We conclude that rule 19 of the Utah Rules of
Appellate Procedure informs our interpretation of the statute.
Specifically, we hold that sponsors are ―prohibited from
pursuing‖ an extraordinary writ in the Supreme Court under
section 602.8(4)(a) when they cannot satisfy rule 19‘s
requirements. Appellants could not do so here and thus
appropriately raised their challenge in the district court.
Accordingly, we reverse and remand for further proceedings in
the district court.
BACKGROUND
¶3 Wasatch Peaks Ranch, LLC (WPR) seeks to develop a ski
resort community in Morgan County. To this end, WPR submitted
to the County‘s planning office a rezoning application requesting
the creation of a Resort Special District encompassing 11,000 acres
of private land within the County. Approximately six months
later, the County adopted an ordinance approving the requested
rezoning and a development agreement between WPR and the
County.
¶4 Appellants are registered voters residing in Morgan
County. Unhappy with the new ordinance, they filed with the
County Clerk an application for a citizen referendum of the
matter. The County Clerk rejected the application because it did
not contain a ―certification‖ that each sponsor is a resident of Utah
or a copy of the challenged ordinance, as required under Utah
Code section 20A-7-602(2)(b) and (e) (2020).1
__________________________________________________________
1 The legislature recently amended section 602 to no longer
require a ―certification indicating that each of the sponsors is a
resident of Utah.‖ 2021 Utah Laws ch. 140, § 43 (H.B. 211). Instead,
the statute now requires, in relevant part, that an application for a
(continued . . .)
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¶5 Appellants then filed in the district court a petition
challenging the rejection of their proposed referendum. WPR
made a motion to intervene, which the court granted.
¶6 WPR moved to dismiss for lack of jurisdiction or, in the
alternative, for summary judgment on the merits. 2 WPR‘s
jurisdictional argument relied on Utah Code section 20A-7-
602.8(4)(a), which provides that a sponsor of a rejected
referendum may ―challenge or appeal the decision‖ within seven
days to ―(i) the Supreme Court, by means of an extraordinary
writ, if possible; or (ii) a district court, if the sponsor is prohibited
from pursuing an extraordinary writ under Subsection (4)(a)(i).‖
WPR argued this statute permits a referendum sponsor to assert
their challenge in district court only if they show that they are
―prohibited from pursuing‖ an extraordinary writ in the Supreme
Court. Because appellants‘ petition made no such showing, WPR
contended, the district court was without jurisdiction to hear their
challenge.
¶7 The district court agreed with WPR. It determined that
subsection 602.8(4)(a) ―is not a general grant of jurisdiction to the
district court‖ but instead grants the district court ―conditional‖
jurisdiction. That condition, the court reasoned, ―is met only
where the sponsor has been prohibited from pursuing a writ‖ in
the Supreme Court. And because appellants presented ―no factual
or legal argument suggesting that pursuit of an extraordinary writ
would be or was impossible,‖ the court concluded it was without
jurisdiction.
local referendum petition must include ―the name and residence
address of at least five sponsors of the referendum petition‖ and
―a statement indicating that each of the sponsors is registered to
vote in Utah.‖ UTAH CODE § 20A-7-602(2). However, given the
absence of any argument for retroactive application, we ―cite to
the version of the statute that was in effect at the time of the
events giving rise to [the] suit.‖ Scott v. Scott, 2020 UT 54, ¶ 1 n.1,
472 P.3d 897 (alteration in original) (citation omitted) (internal
quotation marks omitted).
2 ―When reviewing a rule 12(b)(6) motion to dismiss, we accept
the factual allegations in the complaint as true and interpret those
facts, and all reasonable inferences drawn therefrom, in a light
most favorable to the plaintiff as the nonmoving party.‖ Olguin v.
Anderton, 2019 UT 73, ¶ 4 n.3, 456 P.3d 760 (citation omitted).
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CROFT v. MORGAN COUNTY
Opinion of the Court
¶8 The district court granted WPR‘s motion to dismiss for
lack of jurisdiction. Appellants timely appealed. We have
jurisdiction under Utah Code section 78A-3-102(3)(j).
STANDARD OF REVIEW
¶9 ―The grant of a motion to dismiss presents a question of
law that we review for correctness.‖ Haik v. Jones, 2018 UT 39, ¶ 9,
427 P.3d 1155.
ANALYSIS
¶10 Appellants appeal the district court‘s dismissal of their
challenge for lack of jurisdiction under Utah Code section 20A-7-
602.8(4)(a). WPR responds that the dismissal was appropriate or,
in the alternative, that we can affirm on the basis that appellants‘
referendum application was deficient as a matter of law.
¶11 We first address the jurisdictional question. Finding the
statute ambiguous on its face, we employ additional tools of
statutory construction and conclude that they disfavor WPR‘s
proffered reading of the statute. We then explain how the correct
approach is to read the statute in harmony with rule 19 of our
Rules of Appellate Procedure. And we hold that a sponsor of a
denied referendum application may seek relief in the district court
if it cannot satisfy rule 19‘s requirements for obtaining an
extraordinary writ in this court. Because appellants could not
have satisfied those requirements here, they properly filed their
challenge in the district court. We thus reverse the district court‘s
dismissal for lack of jurisdiction.
¶12 Second, we briefly address WPR‘s arguments for
summary judgment on the merits in the alternative. We conclude
that we are not well positioned to adequately decide these issues
and remand them to the district court for further proceedings.
I. THE DISTRICT COURT ERRED IN CONCLUDING IT
LACKED JURISDICTION
¶13 The primary question we must answer on appeal is
where the sponsor of a rejected referendum application
concerning a local land use law can challenge that rejection. Utah
Code section 20A-7-602.8(4)(a) provides:
If a county, city, town, or metro township rejects a
proposed referendum concerning a land use law, a
sponsor of the proposed referendum may, within
seven days . . ., challenge or appeal the decision to:
(i) the Supreme Court, by means of an
extraordinary writ, if possible; or
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(ii) a district court, if the sponsor is prohibited
from pursuing an extraordinary writ under
Subsection (4)(a)(i).
The parties dispute the meaning of when a sponsor might be
―prohibited from pursuing an extraordinary writ‖ in this court
and, relatedly, when raising a challenge in this court is ―possible.‖
¶14 We agree with appellants that rule 19 provides the
answer. First, we conclude that the language of section 602.8(4)(a)
is ambiguous because it does not identify when a sponsor might
be ―prohibited from pursuing‖ an extraordinary writ in this court
or when raising a challenge in this court is ―possible.‖ Second, we
apply two relevant canons of statutory interpretation and
determine they disfavor WPR‘s interpretation of the statute.
Third, we explain that the correct reading of section 602.8(4)(a) is
to interpret the statute in harmony with rule 19 and our case law
interpreting similar statutes. In so doing, we hold that a sponsor
of a rejected referendum may challenge the rejection in the district
court unless it is ―impractical or inappropriate‖ to do so. See UTAH
R. APP. P. 19(b)(5). Finally, we hold that it would not have been
―impractical or inappropriate‖ for appellants to seek relief in the
district court, and thus jurisdiction there was proper.
A. Section 602.8(4)(a) Is Ambiguous
¶15 ―Our object in interpreting a statute is to determine the
intent of the legislature.‖ Kamoe v. Ridge, 2021 UT 5, ¶ 15, 483 P.3d
720. To do so, we first look to the text of the statute and seek to
interpret it ―in harmony with other statutes in the same chapter
and related chapters.‖ Id. (citation omitted). ―If, after conducting
this plain language review we are left with competing reasonable
interpretations, there is statutory ambiguity.‖ Id. (citation
omitted).
¶16 To discern the legislature‘s intended meaning of section
602.8(4)(a), we must identify when it is ―possible‖ to obtain, and
when a sponsor of a rejected referendum would be ―prohibited
from pursuing,‖ an extraordinary writ in this court. UTAH CODE
§ 20A-7-602.8(4)(a). The statute itself does not answer these
questions. These terms are not defined or otherwise explained in
section 602.8(4)(a), elsewhere in the Election Code, or in any other
related chapter of the Utah Code.
¶17 To determine the meaning of ―possible‖ and ―prohibited
from pursuing,‖ ―we look to the ordinary meaning of the words,
using the dictionary as our starting point.‖ State v. Hatfield, 2020
UT 1, ¶ 17, 462 P.3d 330 (citation omitted). Possible is an adjective
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CROFT v. MORGAN COUNTY
Opinion of the Court
typically used one of two ways: either to express an ability to do
something or to express a chance of something occurring. See, e.g.,
Possible, MERRIAM-WEBSTER.COM, https://www.merriam-
webster.com/dictionary/possible (last visited Aug. 4, 2021)
(―being within the limits of ability, capacity, or realization‖;
―being something that may or may not occur‖); Possibility,
BLACK‘S LAW DICTIONARY (11th ed. 2019) (substantially similar).
Prohibit, on the other hand, more singularly means to prevent or
forbid something altogether. See, e.g., Prohibit, MERRIAM-
WEBSTER.COM, https://www.merriam-
webster.com/dictionary/prohibit (last visited Aug. 4, 2021) (―to
forbid by authority‖; ―to prevent from doing something‖);
prohibit, BLACK‘S LAW DICTIONARY (11th ed. 2019) (―1. To forbid by
law. 2. To prevent, preclude, or severely hinder.‖) Finally, pursue,
as used in the statute, means essentially to take affirmative actions
to seek or obtain something. See, e.g., Pursue, MERRIAM-
WEBSTER.COM, https://www.merriam-
webster.com/dictionary/pursue (last visited Aug. 4, 2021) (―to
find or employ measures to obtain or accomplish: SEEK‖); Pursue,
BLACK‘S LAW DICTIONARY (11th ed. 2019) (―To try persistently to
gain or attain; to seek‖).
¶18 Given this set of definitions, both appellants‘ and WPR‘s
interpretations of section 602.8(4)(a) are plausible. Under
appellants‘ reading of the statute, rule 19 may ―prohibit‖ a
sponsor from ―pursuing‖ an extraordinary writ in this court
because it provides requirements for an application (also called a
petition) to obtain such a writ. See UTAH R. APP. P. 19(a).
Specifically, rule 19 requires a petition for extraordinary writ to
contain a statement explaining ―why no other plain, speedy, or
adequate remedy exists‖ and ―why it is impractical or
inappropriate‖ to seek relief in the district court. Id. 19(b)(4)–(5).
So, appellants reason, one cannot take affirmative steps to seek or
obtain an extraordinary writ if one cannot meet the threshold
requirements of the first step. Further, under appellants‘ reading,
obtaining an extraordinary writ in this court is not ―possible‖ if
rule 19 cannot be met because there is neither ability nor capacity
to obtain that writ.
¶19 WPR responds that rule 19 does not prohibit a sponsor
from pursuing an extraordinary writ but instead ―merely contains
a requirement that must be included when the writ is pursued.‖
In other words, a sponsor is not ―prohibited from pursuing‖ an
extraordinary writ in this court so long as they can physically file
a petition for that writ, even if the petition is doomed to fail. And,
WPR reasons, the statute ―requires appeal by extraordinary writ to
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this Court‖ if the sponsor cannot identify such a condition.
Further, WPR argues that so long as one can ―pursu[e]‖ such a
writ within their interpretation, ―challenge or appeal‖ to this court
is ―possible‖ because we have discretionary authority to grant any
such writ.
¶20 In sum, appellants‘ interpretation of the statute focuses
on when a sponsor would be practically prohibited from pursuing
an extraordinary writ in this court and when such a writ would be
practically possible to obtain. WPR takes a more literal approach,
focusing instead on when a sponsor would be categorically
prohibited from pursuing a writ and when obtaining a writ would
be technically impossible. Both of these interpretations are
plausible. And both look beyond the Election Code and related
statutes to give meaning to the operative statutory language.
Accordingly, we conclude that the statute is ambiguous.
B. WPR’s Interpretation Is Problematic
¶21 To resolve this statutory ambiguity, we next apply two
established canons of statutory interpretation. These interpretive
tools ―are not formulaic, dispositive indicators of statutory
meaning‖ but merely ―guide our construction of statutes in
accordance with common, ordinary usage and understanding of
language.‖ Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 19, 248 P.3d
465. But when multiple interpretive tools all point to the same
result, they provide strong support to favor or disfavor a certain
interpretation of a statute. Here, the canons of constitutional
avoidance and surplusage cut against WPR‘s suggested reading of
section 602.8(4)(a).
1. WPR‘s interpretation is constitutionally troublesome
¶22 When possible, we interpret a statute in a way that is not
constitutionally problematic. See Castro v. Lemus, 2019 UT 71, ¶ 54,
456 P.3d 750. The canon of ―[c]onstitutional avoidance rests on the
reasonable presumption that where there is more than one
plausible interpretation of a statute, the legislature did not intend
the [interpretation] which raises serious constitutional doubts.‖
Hatfield, 2020 UT 1, ¶ 39 (second alteration in original) (citation
omitted) (internal quotation marks omitted). Here, the canon cuts
against WPR‘s suggested construction of section 602.8(4)(a).
¶23 Article VIII, section 3 of the Utah Constitution vests in
this court ―original jurisdiction to issue all extraordinary writs.‖
This power ―cannot be enlarged or abridged by the Legislature.‖
State ex rel. Robinson v. Durand, 104 P. 760, 763 (Utah 1908). Article
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CROFT v. MORGAN COUNTY
Opinion of the Court
VIII, section 3 also vests in this court ―appellate jurisdiction . . . as
provided by statute.‖ UTAH CONST. art. VIII, § 3.
¶24 Our constitutional analysis hinges on which of these two
provisions—original jurisdiction to issue extraordinary writs or
appellate jurisdiction as provided by statute—is applicable here.
Section 602.8(4)(a) purports to allow sponsors to raise their
―challenge or appeal‖ by seeking an extraordinary writ in the
Supreme Court. On one hand, the statute may be an improper
―enlarge[ment]‖ of our ―original jurisdiction to issue all
extraordinary writs.‖ On the other hand, the statute may be a
permissible legislative prescription of our ―appellate jurisdiction.‖
This distinction turns on whether the challenge is an ―appeal‖ in a
traditional jurisdictional sense.
¶25 Rather than relying on the legislature‘s chosen labels to
resolve this tension, we look to the nature of the ―challenge or
appeal‖ as provided by section 602.8(4)(a). Cf. Nat’l Fed’n of Indep.
Bus. v. Sebelius, 567 U.S. 519, 544, 565 (2012) (explaining that
―Congress cannot change whether an exaction is a tax or a penalty
for constitutional purposes simply by describing it as one or the
other‖ or by using ―[m]agic words‖ (citation omitted)). ―In
general, when we refer to ‗appellate jurisdiction,‘ we have spoken
in terms of the authority established in the Utah Constitution or
by statute of the appellate court to review the decision of a lower
court.‖ A.S. v. R.S., 2017 UT 77, ¶ 35 n.12, 416 P.3d 465. Here, the
challenged proceeding—the decision of a ―local clerk‖ to accept or
reject a local referendum application, UTAH CODE § 20A-7-
607(2)(b)—is not ―the decision of a lower court.‖ Nor does it bear
any features common to a typical judicial ―appeal.‖ It carries none
of the hallmarks of due process such as notice, hearing, and
opportunity for adverse argument. In this case, it was merely a
letter submitted to, and summarily rejected by, the County Clerk.
Further, the reviewing court is not tasked with reviewing an
established record for mistakes of law—the ―challenge‖ is
essentially de novo. For these reasons, a ―challenge or appeal‖
under section 602.8(4)(a) is not an appeal in the jurisdictional
sense and thus does not fall within this court‘s ―appellate
jurisdiction‖ as provided by article VIII, section 3.3
__________________________________________________________
3 In addition to ―decision[s] of a lower court,‖ we also have
appellate jurisdiction over ―final orders and decrees in formal
adjudicative proceedings‖ from certain administrative agencies
and ―final orders and decrees of the district court review of
(continued . . .)
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¶26 Having decided that section 602.8(4)(a) does not
implicate our ―appellate jurisdiction,‖ we must consider whether
WPR‘s interpretation of the statute intrudes upon our ―original
jurisdiction to issue all extraordinary writs.‖ See UTAH CONST. art.
VIII, § 3. Fortunately, we already answered a substantially similar
question in Brown v. Cox, 2017 UT 3, ¶ 13, 387 P.3d 1040.
¶27 In Cox, we addressed a similar provision of the Election
Code that ―purport[ed] to extend this court‘s original jurisdiction
to include multi-county election contests‖ by requiring registered
voters to file a verified written complaint with this court in
disputing the results of a primary election that included multiple
counties. Id. ¶ 12 (citing UTAH CODE § 20A-4-403(2)(a)). Appellant
Brown asked this court to adopt ―a liberal view of the
Legislature‘s power to grant Supreme Court jurisdiction.‖ Id. ¶ 13.
We declined his invitation, instead holding that, under our well-
established precedent, article VIII, section 3 ―does not grant the
Legislature authority to alter our original jurisdiction.‖ Id.
¶28 Although WPR does not cite Cox, it attempts to distance
its proffered interpretation of section 602.8(4)(a) from the statute
at issue in Cox. True, the statute in Cox mandated that a voter
challenging the results of a primary election ―shall contest‖ the
results ―by filing a verified written complaint . . . with . . . the Utah
Supreme Court.‖ Id. ¶ 12 (alterations in original) (quoting UTAH
CODE § 20A-4-403(2)(a)). Whereas section 602.8(4)(a) provides that
a sponsor ―may . . . challenge or appeal‖ a rejected referendum to
―the Supreme Court, by means of an extraordinary writ, if
possible.‖ WPR essentially argues that this language of section
602.8(4)(a) does not require the Supreme Court to issue such a
writ but only requires a sponsor to apply for one.
informal adjudicative proceedings‖ of those same agencies. UTAH
CODE § 78A-3-102(3)(e)–(f). However, a challenge under section
602.8(4)(a) is not such an administrative appeal, either. A county
clerk does not fall within the enumerated agencies, the sponsor is
not appealing a district court review of an administrative
decision, nor would we consider the rejection of a referendum
application a ―formal adjudicative proceeding.‖ See S. Utah
Wilderness All. v. Bd. of State Lands & Forestry, 830 P.2d 233, 236
(Utah 1992) (explaining that ―formal‖ administrative proceedings
involve ―fuller discovery and fact finding,‖ resulting in ―an
adequate record for review‖).
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Opinion of the Court
¶29 Any distinction between the statute in Cox and WPR‘s
interpretation of section 602.8(4)(a) makes little difference. While
we have never decided if a legislative requirement to seek an
extraordinary writ offends article VIII, section 3, we certainly have
our doubts as to the constitutionality of such a requirement. If
WPR is unable to point to any prohibition on pursuing a writ
sufficient to allow a sponsor to seek relief in the district court
under subsection 602.8(4)(a)(ii), then their reading of the statute
effectively makes an extraordinary writ in the Supreme Court a
sponsor‘s only remedy. Even if WPR could identify such a
prohibition, the statute‘s tight filing deadlines would then leave
the sponsor stuck without a remedy if this court were to deny
their petition for extraordinary writ (unless the sponsor had the
foresight to file petitions in both the Supreme Court and district
court). The practical effect of WPR‘s interpretation of 602.8(4)(a) is
analogous to that of the Cox statute, which provided that a party
―shall contest‖ a matter in the Supreme Court. The legislature
cannot make an end-run around our original jurisdiction to issue
extraordinary writs by requiring that a party seeking judicial relief
first file for an extraordinary writ in this court while also
providing that the party will be effectively without relief if we
were to deny their petition. Such a requirement would put a
heavy legislative thumb on our discretionary scale to issue
extraordinary writs. See State v. Barrett, 2005 UT 88, ¶ 23, 127 P.3d
682 (―[A] petitioner seeking . . . extraordinary relief has no right to
receive a remedy . . . . [W]hether relief is ultimately granted is left
to the sound discretion of the court hearing the petition.‖).
¶30 The bottom line is this. Section 602.8(4)(a) requires a
sponsor to raise its challenge in ―the Supreme Court, by means of
an extraordinary writ, if possible.‖ And if WPR were correct that
the meaning of ―if possible‖ is not informed by rule 19 but instead
by some other procedure outside of this court‘s control, then the
statute would amount to a legislative attempt to regulate our
jurisdiction to issue extraordinary writs. Yet this court has rejected
similar attempts for over a century, from State ex rel. Robinson v.
Durand to Brown v. Cox.
¶31 We avoid this thorny territory of possible
unconstitutionality by employing the canon of constitutional
avoidance. Here, as already explained, WPR‘s proffered
interpretation of section 602.8(4)(a), while plausible, may offend
our sole constitutional authority to regulate the issuance of
extraordinary writs. Such interference with our original
jurisdiction raises ―serious constitutional doubts.‖ Accordingly,
we presume the legislature did not intend that any sponsor
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challenging a rejected referendum application seek an
extraordinary writ in this court, regardless of our established
requirements for actually obtaining such a writ.
2. WPR‘s interpretation would render subsection 602.8(4)(a)(ii)
meaningless
¶32 The surplusage canon similarly cuts against WPR‘s
interpretation of section 602.8(4)(a). It provides that ―[i]f possible,
every word and every provision [of a statute] is to be given
effect.‖ ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 174 (2012). The canon rests on the
presumption that the legislature did not intend to ―adopt a
nullity.‖ Lancer Ins. Co. v. Lake Shore Motor Coach Lines, Inc., 2017
UT 8, ¶ 13, 391 P.3d 218.4
¶33 To be clear, the canon of surplusage establishes only a
presumption that statutory language be given operative effect. It is
not a bright-line rule. We have recognized that ―[l]egislation may
include surplus terms aimed at underscoring an important point.‖
Id. ¶ 14. But the presumption is much more difficult to overcome
when it would render an entire statutory provision meaningless.
―Where that is the case the presumption . . . is at its strongest‖
because we are reluctant to presume the legislature would enact a
statutory provision ―that has no operative effect.‖ Id.
¶34 Below, the district court proposed that some other
―rule[] or statute‖ might prohibit a sponsor from pursuing an
extraordinary writ in this court. But on appeal, with plenty of time
to consider and research the issue, WPR still has not identified, in
either its brief or at oral argument, any such rule or statute. Under
its reading of section 602.8(4)(a), subsection (ii) would never be
reached. Effectively, the statute would simply say that a sponsor
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4 Lancer Insurance Company applied the canon of independent
meaning—a close counterpart of the surplusage canon. See 2017
UT 8, ¶ 13. While applied in slightly different circumstances, the
logic underlying the two canons is identical. The canon of
independent meaning is used to differentiate two statutory
provisions by presuming that the legislature did not intend ―to
enact a provision that says nothing not already stated elsewhere.‖
Id. And while some commentators consider independent meaning
a subset of surplusage, see SCALIA & GARNER, READING LAW at 176,
here we use the surplusage canon to give meaning to a statutory
provision in the first instance, without juxtaposition to any other
provision.
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Opinion of the Court
may ―challenge or appeal the decision to the Supreme Court, by
means of an extraordinary writ.‖
¶35 WPR offers no explanation for why the legislature
would enact a statutory provision that ―has no operative effect.‖
Because WPR‘s suggested reading of section 602.8(4)(a) would
render subsection (ii) a ―nullity,‖ the surplusage canon is ―at its
strongest‖ here. Accordingly, we are reluctant to adopt that
interpretation.
C. Subsection 602.8(4)(a) Is Best Interpreted in Harmony with Our
Rules of Procedure and Case Law
¶36 While WPR‘s interpretation of section 602.8(4)(a) is
problematic for the reasons discussed, appellants‘ suggested
interpretation presents no such problems. We agree with
appellants that rule 19 and our case law applying it to similar
election statutes resolve the statutory ambiguity here.
¶37 As previously explained, this court has sole authority to
―issue all extraordinary writs‖ and to define the contours of that
process. Supra ¶ 23. ―[T]his court typically limits itself to
addressing only those petitions that cannot be decided in another
forum.‖ Carpenter v. Riverton City, 2004 UT 68, ¶ 4, 103 P.3d 127.
To this end, rule 19 requires a petition for an extraordinary writ to
include ―[a] statement of the reasons why no other plain, speedy,
or adequate remedy exists‖ and, when the petition is filed in a
court other than the district court, ―a statement explaining why it
is impractical or inappropriate to file the petition for a writ in the
district court.‖ UTAH R. APP. P. 19(b)(4)–(5). Because rule 19
expresses our singular power to issue extraordinary writs, and
because we presume the legislature does not intend a statutory
interpretation ―which raises serious constitutional doubts,‖
Hatfield, 2020 UT 1, ¶ 39 (citation omitted), rule 19 informs our
interpretation of section 602.8(4)(a). Put plainly, a sponsor is
―prohibited from pursuing‖ an extraordinary writ in this court
when they cannot satisfy rule 19‘s requirements.
¶38 As appellants point out, this interpretation is consistent
with our case law interpreting a similar provision of the Election
Code. While section 602.8 prescribes procedures specific to a
referendum application for a local land use law, Utah Code
section 20A-7-607 regulates the acceptance or rejection of the
actual, circulated referendum, with signatures. Prior to being
amended in 2019,5 section 607(4)(a) read: ―If the local clerk refuses
__________________________________________________________
5 2019 Utah Laws ch. 203, § 32 (H.B. 119).
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to accept and file any referendum petition, any voter may apply to
the Supreme Court for an extraordinary writ to compel the local
clerk to do so.‖ UTAH CODE § 20A-7-607(4)(a) (2018). In Anderson v.
Provo City, we addressed whether a voter seeking relief in this
court under section 607(4)(a) must comply with rule 19‘s
requirements.6 2016 UT 50, 387 P.3d 1014. We held that the statute
does not ―relieve Petitioners of the need to meet the requirements
of‖ rule 19(b)(4)–(5). Id. ¶ 6. And we accordingly denied their
petition for extraordinary writ because they had failed to show
that it would have been ―inappropriate‖ or ―impractical‖ for them
to have filed in the district court. Id. ¶ 3. In so doing, we rejected
the petitioners‘ argument that the legislature sought to mandate
filing referendum challenges in this court—suggesting that the
legislature‘s intent instead was to ensure voters were aware that
they could file directly in this court under appropriate
circumstances that meet the requirements of rule 19, such as when
a referendum challenge is urgent and cannot be adequately and
timely resolved in the district court. See id. ¶ 4 (―While many
ballot disputes will present tight timelines that will make it either
impractical or inappropriate to file in the district court, that will
not always be the case.‖).
¶39 Our reasoning in Anderson is persuasive and applicable
to the question before us today. Accordingly, we adopt a reading
of section 602.8(4)(a) parallel to our settled interpretation of
section 607(4)(a). Such an interpretation is consistent with our
constitution, our case law, and the legislature‘s presumed intent.
¶40 We hold that, under section 602.8(4)(a), a sponsor is
―prohibited from pursuing‖ an extraordinary writ in the Supreme
Court if they cannot satisfy the requirements of rule 19.
Specifically, a sponsor may file their challenge in the district court
unless doing so would be ―impractical or inappropriate‖ and
unless seeking an extraordinary writ in this court is the only
__________________________________________________________
6 We were previously asked, in Low v. City of Monticello and
again in Carpenter v. Riverton City, to determine whether section
607(4)(a) barred voters from challenging referendum decisions in
the district court. 2002 UT 90, 54 P.3d 1153, overruled on other
grounds by Carter v. Lehi City, 2012 UT 2, 269 P.3d 141; 2004 UT 68.
In both instances, we found that it did not and held that the
statute ―is permissive in nature and does not designate this court
as the exclusive location where relief may be sought.‖ Carpenter,
2004 UT 68, ¶ 4 n.3.
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CROFT v. MORGAN COUNTY
Opinion of the Court
―plain, speedy, or adequate remedy.‖ See UTAH R. APP. P.
19(b)(4)–(5).
D. Appellants Properly Sought Relief in the District Court
¶41 There is no indication that appellants could have
satisfied rule 19‘s requirements to obtain an extraordinary writ in
this court. Nothing suggests that seeking relief in the district court
would have been ―impractical or inappropriate‖ and that the
district court could not have provided a ―plain, speedy, or
adequate remedy.‖ UTAH R. APP. P. 19(4)–(5).
¶42 There is no evidence that construction of the ski resort
was imminent or that a referendum would need to be
immediately placed on the ballot to avoid the ski resort‘s
construction. Like in Anderson, there is no apparent ―tight
timeline‖ attached to the appellants‘ challenge that would make
the district court an inadequate forum for resolving the challenge.
See Anderson, 2016 UT 50, ¶ 4. The referendum application is not
tied to any specific election or other deadline that would demand
immediate resolution and prevent the district court from
providing a ―plain, speedy, or adequate remedy‖ as would be
necessary to satisfy rule 19‘s requirements. Moreover, it has been
over eighteen months since the referendum application was
rejected, yet appellants‘ alleged injury may still be redressed
through a referendum. Because appellants could not satisfy Rule
19, we conclude that they were not required to file a petition for
extraordinary writ in this court and properly filed their challenge
in the district court.
II. WE DECLINE TO REACH WPR‘S SUGGESTED ALTERNATE
GROUNDS FOR AFFIRMANCE
¶43 Alternatively, WPR asks us to affirm the county‘s
decision to reject the referendum application as a matter of law.
“We will affirm the ruling of a lower court on alternate grounds
only when the ground or theory is ‗apparent on the record,‘‖
meaning that the record must contain ―sufficient and
uncontroverted evidence‖ supporting the alternate grounds.
Francis v. State, Utah Div. of Wildlife Res., 2010 UT 62, ¶ 10, 248 P.3d
44 (citation omitted). Still, our decision to do so is discretionary,
even if an alternate ground presents a question purely of law. See
id. ¶¶ 18–19. In some circumstances, we may benefit from the
district court‘s analysis of the alternate grounds in the first
instance. Such is the case here.
¶44 WPR submits three reasons why appellants‘ referendum
application was deficient. WPR made these same arguments to the
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Cite as: 2021 UT 46Opinion of the Court
district court in its Motion to Dismiss for Lack of Jurisdiction and,
in the Alternative, For Summary Judgment. However, the district
court found that it lacked jurisdiction and did not reach the merits
of the motion for summary judgement. We address each
argument in turn and explain why we are not well positioned to
decide each alternate ground.
¶45 First, WPR argues that appellants failed to include ―a
certification that each of the sponsors is a resident of Utah‖ as
required by Utah Code section 20A-7-602(2)(b) (2020).7 Although
each sponsor included their printed name and Utah address
below their signature line on the application, WPR asserts this is
not good enough. In its view, appellants needed to include a
―formal attestation‖ as to the truth of their residency.
¶46 Utah law has not categorically decided if and when a
signature suffices as a ―certification.‖ While our rules of civil
procedure and case law may shed some light on the subject, the
answer may depend on the contents and nature of the application
as a whole. As such, the district court will be better positioned on
remand to apply our existing body of law to the appropriate facts.
¶47 Second, WPR asserts that appellants failed to properly
notarize four of their five signatures as required by Utah Code
section 20A-7-602(2)(d). Appellant Croft, herself a commissioned
notary public, notarized those four signatures. However, ―[a]
notary may not perform a notarial act if the notary: (1) is a signer
of the document . . . [or] (2) is named in the document.‖ UTAH
CODE § 46-1-7(1)–(2). Thus, WPR argues, Croft was disqualified
from notarizing the other sponsors‘ signatures.
¶48 While the text of Utah Code section 46-1-7 is clear, the
consequences of its violation are not. Indeed, the same chapter
also provides: ―If a notarial act is performed contrary to or in
violation of this chapter, that fact does not of itself invalidate
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7 The County Clerk rejected the referendum application on this
basis and on the basis that it did not contain a copy of the
challenged ordinance pursuant to Utah Code section 20A-7-
602(2)(e)(i). Appellants did not specifically address in their
complaint this latter basis, nor did WPR brief it in WPR‘s Motion
to Dismiss for Lack of Jurisdiction and, in the Alternative, For
Summary Judgment. On remand, the district court will be better
positioned to determine if appellants have sufficiently pled a
challenge to this latter basis and, if so, whether WPR has
preserved any defense of it.
15
CROFT v. MORGAN COUNTY
Opinion of the Court
notice to third parties of the contents of the document notarized.‖
Id. § 46-1-22. WPR claims that a deficient notarial act renders the
associated signatures invalid. Appellants respond by pointing to
several out-of-state cases for the proposition that a deficient
notarial act will not invalidate a document unless it results in an
―improper benefit‖ or prejudice to a party. Given the vacuum of
factual development below on this issue, we decline to decide the
proper standard. Instead, we remand this claim so the district
court can hear further argument as to the appropriate standard
and make any factual findings necessary to its implementation of
that standard.
¶49 Finally, WPR argues that appellants failed to timely file
their referendum application. Any application challenging a local
law must be filed ―before 5 p.m. within seven days after the day
on which the local law was passed.‖ Id. § 20A-7-601(5). WPR
points to two key pieces of evidence indicating that the
referendum application was submitted after 5:00 p.m. on the
seventh day. First, an attorney for WPR filed an affidavit stating
that she was present at the Morgan County Offices that afternoon,
witnessed Croft deliver the application to the County Clerk‘s
office at 5:04 p.m., and took several pictures of Croft in the County
Clerk‘s office that were timestamped ―5:04 p.m.‖ by her phone‘s
software. Second, the County Clerk wrote on the application:
―rec‘d 11-6-19 5:05 pm.‖ Appellants respond that their own
affidavits refute WPR‘s version of the facts. For example, Croft
stated she has been to the County Offices many times, has noticed
that the building‘s various clocks are rarely in sync with one
another or outside timepieces, and, to the best of her knowledge,
submitted the referendum application before 5:00 p.m. And
petitioner Paige, the last sponsor to sign the application, stated
that she did so and left the County Offices by 4:56 p.m.
¶50 WPR asks us to grant its motion for summary judgment
in the alternative on the basis that appellants filed their
referendum application after 5:00 p.m. However, when
considering a motion for summary judgment, a court must view
―the facts and all reasonable inferences drawn therefrom in the
light most favorable to the nonmoving party.‖ Orvis v. Johnson,
2008 UT 2, ¶ 6, 177 P.3d 600 (citation omitted). Viewing the
disputed facts in the light most favorable to appellants, we
conclude that a genuine issue of material fact exists regarding the
timeliness of the referendum application. We therefore decline to
affirm on this ground and remand to the district court for findings
of fact on this issue.
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CONCLUSION
¶51 In sum, section 602.8(4)(a) is ambiguous because it does
not describe the circumstances under which sponsors of rejected
referendums are ―prohibited from pursuing an extraordinary
writ‖ in this court. We hold that rule 19 of the Utah Rules of
Appellate Procedure explains when sponsors are ―prohibited
from pursuing an extraordinary writ‖ in this court, as this is the
only interpretation consistent with principles of statutory
interpretation and our case law. Here, appellants could not satisfy
rule 19‘s requirements for filing an extraordinary writ in this court
and therefore properly raised their challenge in the district court.
We therefore reverse the district court‘s dismissal for lack of
jurisdiction and remand to the district court for further
proceedings.
17