Gricius v. Cox , 2015 UT 86 ( 2015 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2015 UT 86IN THE
SUPREME COURT OF THE STATE OF UTAH
STEPHANIE GRICIUS, KAMME EDSBERG, MELISSA BRADLEY,
and COLBY CURTIS,
Petitioners,
v.
SPENCER J. COX,
Lieutenant Governor,
Respondent.
No. 20150581
Filed September 23, 2015
Attorneys:
Stephanie Gricius, Kamme Edsberg, Melissa Bradley,
Colby Curtis, Salt Lake City, pro se
Sean D. Reyes, Att’y Gen., Thom D. Roberts, Asst. Att’y Gen.,
Salt Lake City, for respondent
PER CURIAM:
¶1 This matter is before the court on a petition for extraordinary
relief filed by Stephanie Gricius, Kamme Edsberg, Melissa Bradley,
and Colby Curtis. Previously, a similar petition was filed by Fred C.
Cox,1 but we determined he lacked standing because he had not
identified himself as one of the prospective sponsors of the proposed
referendum petition described by his petition.
¶2 This petition has been filed by four of the prospective
sponsors of that referendum petition. The petition pertains to a
contemplated referendum for the repeal of HB 454, entitled “Prison
Development Amendments,” enacted by the Legislature during its
2015 General Session, which ended on March 12, 2015. It asserts that
the group of sponsors prepared a referendum application and
“attempted to submit their Application on March 27, 2015, but
[were] refused and denied that opportunity by the Utah [Lieutenant]
Governors’ Election Office, based on the [five-day] deadline found
in Utah Code 20A-7-302.”
1
Case number 20150261.
GRICIUS v. COX
Opinion of the Court
¶3 Section 20A-7-302 states:
(1) Persons wishing to circulate a referendum
petition shall file an application with the
lieutenant governor within five calendar days
after the end of the legislative session at which
the law passed.
(2) The application shall contain:
(a) the name and residence address of at least
five sponsors of the referendum petition;
(b) a certification indicating that each of the
sponsors:
(i) is a voter; and
(ii) has voted in a regular general election
in Utah within the last three years;
(c) the signature of each of the sponsors,
attested to by a notary public; and
(d) a copy of the law.
The petition implies that the five-day deadline is unconstitutional
because, as a practical matter, referenda sponsors cannot comply. It
notes the period for the Governor to review a bill passed by the
Legislature exceeds the five-day period, and it assumes the term
“law,” as employed by section 20A-7-302, must refer to a bill that has
been signed by the Governor or not vetoed within the period he is
afforded to review the bill.2 The petition does not include any
affidavits or other documentation in support of its factual allegations
except a copy of an application for a referendum that was prepared
by the sponsors.
¶4 The Lieutenant Governor filed a response on August 6, 2015,
and an affidavit from Mark Thomas, the Lieutenant Governor’s
Chief of Staff and Director of Elections, which stated that his office
“ha[d] not refused to accept or file the referendum petition,” that it
2
Previously, Mr. Cox’s petition also asserted that an enrolled
copy of the bill often will not be available for several days after the
end of the legislative session. This petition also includes a cursory
referenced to the unavailability of an enrolled copy but has not
proffered any argument that a delay in the availability of an enrolled
copy of the bill separately prevented the sponsors from complying
with the statutory application requirements.
2
Cite as: 2015 UT 86Opinion of the Court
“received at least two phone[ ] calls toward the end of March 2015
with regard to the time to file an application for a referendum,” and
that “on both occasions the caller was advised that under the statute
the application must be filed within 5 days of the end of the
legislative session.”3
¶5 When an appellate court considers a petition for
extraordinary relief without any record generated by prior litigation
or other official proceedings, it ordinarily may grant relief only if
that relief is based on allegations properly supported by affidavit or
other reliable documentation.4 See Carpenter v. Riverton City, 2004 UT
68, ¶ 5, 103 P.3d 127; Fundamentalist Church of Jesus Christ of Latter-
Day Saints v. Horne, 2012 UT 66,¶ 41, 289 P.3d 502. The petition fails
to satisfy the requirement of demonstrating that its allegations are
supported by affidavit .
3
In connection with our consideration of the prior petition, we
requested that Mr. Cox and the Lieutenant Governor file supplemen-
tal pleadings addressing the standing issue that we ultimately
deemed determinative. We also asked the parties to address the
question of
what form of the ‘copy of the law’ must be attached to
an application for a referendum petition under Utah
Code § 20A-7-302(2)(d); and, if the term ‘law’ is
construed to mean ‘a bill passed by the Legislature,’
how does an applicant comply with that requirement
if a copy of the enrolled version of the bill is not
available within the five-day limit specified by Section
20A-7-302(1)?
4
This is because our only means of resolving disputed material
facts in the first instance and in conformity with the requirements of
due process is to make a referral to a special master; and we
undertake those referrals only in exceedingly rare circumstances.
Additionally, there is some question as to whether this court should
consider any argument pertaining to the requirement that the law
challenged by the referendum be attached to the referendum
application. That argument has not been clearly stated in the
petition. A petitioner has the burden of clearly presenting all
arguments within the original petition, may not present new
argument that could have been raised in the original petition in a
reply to a response, and is required to submit pleadings in a proper
form.
3
GRICIUS v. COX
Opinion of the Court
¶6 But even if we accepted the petition’s factual allegations, we
would not be persuaded that it has established a constitutional
violation because it has not described any circumstances that
actually prevented the sponsors from filing their application within
the specified deadline. In that regard, it appears the petition
depends on the assumption that the use of the term “law” within
section 20A-7-302 cannot be deemed to refer to a bill passed by the
Legislature, or that the term is so ambiguous as to preclude
compliance. While it is true that the term “law” employed in
isolation ordinarily may refer to a presently effective legal mandate,
such a definition clearly is inapplicable when the context provided
by other text within section 20A-7-302 is considered. The reference
to a “law” within the provision establishing the five-day deadline
cannot be interpreted to mean a legislative edict that is presently
effective or that has been approved or not vetoed by the Governor
because the deadline also clearly and explicitly references the end of
the legislative session as the starting point for calculating the
deadline. Thus, there is no reasonable interpretation of the term
“law” that could mean anything other than a bill passed by the
Legislature in whatever form it exists at the time the legislative
session ends. And, even assuming a reasonable person could be
confused by the use of the term “law,” the specification of the
deadline at a minimum should prompt that person to inquire about
available means of compliance before the expiration of that
deadline.5 Yet, in this case, there is no allegation that any inquiry
was directed to the Lieutenant Governor’s office prior to March 27,
2015, fifteen days after the end of the legislative session.
¶7 Additionally, we can discern no basis for perceiving an
infringement of constitutional rights arising from the possibility that
the sponsors’ initial efforts would be rendered moot by a veto that
would have provided them with the same outcome they intended to
seek through the referendum. The remedies of a veto and a
referendum are independent and complementary in nature.
Opponents of a bill passed by the Legislature are free to lobby the
Governor at the same time they embark on the path of seeking
repeal through the voice of the people, and we cannot see how they
could claim any disappointment, let alone any violation of their
5
“A bill passed by the Legislature” would perhaps be more
precise language than “law.” Nonetheless, in the context of the
statute, the term “law” provides adequate notice of the form and
status of the matters to which the statute refers.
4
Cite as: 2015 UT 86Opinion of the Court
constitutional rights, if the Governor’s exercise of his prerogative as
to the former relieves them of the burden of undertaking the latter.
¶8 Finally, insofar as the petition properly can be construed as
timely and adequately raising an issue regarding the form of the
“law” that the statute requires the sponsors to attach to the
application, see supra ¶ 4 n.3, its claim of ambiguity may carry more
weight. If the statute may be construed as requiring an enrolled
copy of the bill, and such a copy is not available before the passage
of the deadline for filing the application, then sponsors would have
no practical means of complying with the statute. But again, in that
context the statute can be construed only as requiring whatever form
of the bill the sponsors reasonably can obtain for attachment to a
timely application.6 And, to the extent sponsors of a referendum
application have made a good faith effort to comply with the statute
by attaching a copy of the most recent version of the bill that is
available to them, the Lieutenant Governor clearly cannot refuse the
application.7 We also do not read the statute to preclude the
Lieutenant Governor from supplying a more proper or accurate
copy of the bill for purposes of circulation for signature. Indeed,
such a substitution might be appropriate, or even necessary, in some
circumstances.8
¶9 In sum, we conclude that Petitioners have not provided us
with a sound basis for declaring section 20A-7-302 of the Utah Code
unconstitutional on its face or as applied to the facts as they have
6
In his response to our prior inquiry, the Lieutenant Governor
asserted that a copy of the bill passed by the Legislature is available
on the Legislature’s website within five days of the date of the end
of the session.
7
Insofar as the petition implies an argument based on the
sponsors’ inability to know the precise details of the bill until they
receive an enrolled copy, we are not persuaded. Sponsors who have
complied with the relatively simple and straightforward require-
ments of the application process are not obligated to move forward
with the much more arduous task of obtaining and submitting
signatures on a referendum if further review of the minute details of
a passed bill persuades them to abandon the effort.
8
A statutory amendment to clarify the manner in which refer-
enda sponsors may satisfy the statutory requirement to attach a copy
of the “law” might be appropriate, but we leave that to the judgment
of the Legislature.
5
GRICIUS v. COX
Opinion of the Court
sufficiently alleged. Accordingly, we decline to grant the relief they
request.
6