Downs v. Thompson

This opinion is subject to revision before final
publication in the Pacific Reporter

2019 UT 53

IN THE

SUPREME COURT OF THE STATE OF UTAH

STEVEN DOWNS,
Petitioner,
v.
BRYAN THOMPSON, BOARD OF COUNTY COMMISSIONERS OF UTAH
COUNTY, and UTAH COUNTY,
Respondents.

No. 20180696
Filed August 27, 2019

On Certification from the
United States District Court for the District of Utah
The Honorable Dale A. Kimball
Case No. 2:17-cv-00330

Attorneys:
J. Brady Brammer, Pleasant Grove, Steven C. Earl, Orem, for
petitioner
Benson L. Hathaway, Jr., Jackie Bosshardt, Ryan R. Beckstrom, Salt
Lake City, for respondents

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 The United States District Court for the District of Utah
certified three questions to be answered by this court: (1) “Does a
Utah [state] district court have jurisdiction to review the Utah
County Board of Commissioners’ decision upholding a fine levied
pursuant to Utah Code Section 20A-11-1205?”; (2) “Does the term
‘ballot proposition’ as used in Utah Code Section 20A-11-1205(1)
include a referendum during the period of time before its sponsors
have obtained the requisite number of signatures on the referendum
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Opinion of the Court
petition?”; and (3) “Does the term ‘ballot proposition’ as used in
Utah Code Section 20A-11-1205(1) include a referendum during the
signature gathering phase if the challenged local government action
is later found to be administrative in nature and therefore not subject
to a referendum?”
¶2 With respect to question one, we answer that a Utah state
district court does not have appellate jurisdiction to review the Utah
County Board of Commissioners’ decision upholding a fine levied
under Utah Code section 20A-11-1205. In doing so, we are obligated
to clarify the difference between a district court’s original jurisdiction
and its appellate jurisdiction—specifically the source and
authorization of these powers. And we are also obligated to note that
the certified question does not implicate, and therefore we do not
opine on, whether the Utah County Board of Commissioners’ review
process is constitutional, a query about which we harbor some
serious reservations.
¶3 We answer the second question by defining a “ballot
proposition” as used in Utah Code section 20A-11-1205(1)(b) to
encompass the entirety of the referendum process, including the
period of time before sponsors have obtained the requisite number
of signatures on the referendum petition.
¶4 Lastly, in response to the third question, we answer that a
“ballot proposition” as used in Utah Code section 20A-11-1205(1)(b)
encompasses the entirety of the referendum process—including the
signature gathering phase—even if the challenged local government
action is later found to be administrative in nature and therefore
ultimately not subject to a referendum.
BACKGROUND
¶5 In April 2016, Orem City passed Resolution No.
R-2016-0012, which authorized the mayor of Orem to sign a lease
agreement and an interlocal cooperation agreement in connection
with the implementation of the Utah Transit Authority’s Bus Rapid
Transit (BRT) program. 1 In response, several citizens filed a petition
for referendum against the resolution. The citizens circulated
referendum packets and collected the necessary signatures for a
referendum before submitting their petition to the City Recorder.
The City Recorder rejected the referendum petition because the City
Recorder believed Resolution No. R-2016-0012 concerned an
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1 Orem had already approved the BRT program through
resolutions passed in 2008 and 2015.

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administrative action and was therefore not subject to a referendum.
The City Recorder’s decision was upheld by the Fourth District
Court. As a result, the referendum vote sought through the petition
was never put on the ballot.
¶6 Steven Downs, in his role as the Public Information Officer
for Orem, circulated an email—using his work email account—
announcing a public meeting to discuss the BRT program with the
entities charged with its implementation. This email was sent after
the petition had been submitted but before all necessary signatures
had been gathered. The email contained only information from
opponents of the BRT referendum, invited recipients to attend a
meeting held by opponents of the referendum, distributed a link to
an anti-petition website, and did not contain any information
summarizing arguments in favor of the BRT project. In response,
Bryan Thompson, the Utah County Clerk, fined Downs $250 for
violating the Political Activities of Public Entities Act—specifically,
Utah Code section 20A-11-1205(1)(b), which stated that “a person
may not send an email using the email of a public entity . . . to
advocate for or against a ballot proposition.” 2
¶7 Downs demanded a review of the fine before an impartial
tribunal. In response, Utah County passed chapter 31 of the Utah
County Code, which delegates the review of any civil fine issued
under the Political Activities of Public Entities Act to the County
Commission, and purports to make any decision by the Board of
Commissioners appealable to the Fourth District Court in Utah
County. After the Board of Commissioners voted to uphold the fine,
Downs filed a petition in the Fourth District Court challenging the
ruling on several grounds. Respondents removed the case to federal
court. The federal court found that Downs had standing to bring his
claim in federal court but reserved ruling on a number of motions
until receiving guidance on the three questions certified to this court.
¶8 We have original jurisdiction to answer these questions of
state law under Utah Code section 78A-3-102(1).

_____________________________________________________________
2 While this case has been pending, Utah Code section 20A-11-
1205(1)(b) has been amended to state that “a person may not send an
email using the email of a public entity . . . to advocate for or against
a proposed initiative, initiative, proposed referendum, or
referendum.” Throughout this opinion we refer to section 20A-11-
1205(1)(b) and any other sections of the Utah Code as they existed at
the time Downs was fined.

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Opinion of the Court
STANDARD OF REVIEW
¶9 “A certified question from the federal district court does not
present us with a decision to affirm or reverse a lower court’s
decision; as such, traditional standards of review do not apply.” U.S.
Fid. & Guarantee Co. v. U.S. Sports Specialty Ass’n, 2012 UT 3, ¶ 9, 270
P.3d 464 (citation omitted) (internal quotation marks omitted).
“Accordingly, we merely answer the question presented, leaving
resolution of the parties’ competing claims and arguments . . . up to
the federal courts, which of course retain jurisdiction to decide [the]
case.” Garfield Cty. v. United States, 2017 UT 41, ¶ 6, 424 P.3d 46
(alterations in original) (citation omitted) (internal quotation marks
omitted).
ANALYSIS
I. UTAH CODE SECTION 20A-11-1205 DOES NOT CONVEY
APPELLATE JURISDICTION ON STATE DISTRICT COURTS
¶10 The first question certified to this court is narrow in scope:
“Does a Utah [state] district court have jurisdiction to review the
Utah County Board of Commissioners’ decision upholding a fine
levied pursuant to Utah Code Section 20A-11-1205?” Or in other
words, does a state district court have jurisdiction to conduct an
appellate review of the Utah County Board of Commissioners’
decision to uphold a fine levied by a county clerk? It does not. But
we make clear that this statement of law does not implicate or
abridge the wide scope and authorization the district courts
maintain under their grant of original jurisdiction.
¶11 We have stated that “[i]t is the essential criterion of
appellate jurisdiction[] that it revises and corrects the proceedings in a
cause already instituted[] and does not create that cause.” State v. Johnson,
114 P.2d 1034, 1037 (Utah 1941) (citation omitted) (internal quotation
marks omitted), overruled in part on other grounds by Boyer v. Larson,
433 P.2d 1015 (Utah 1967). In this case, the “proceeding [] in a cause
already instituted” is the Utah County Board of Commissioners’
decision to uphold Downs’s fine. Id.
¶12 In Utah, jurisdiction to decide a case “derives from the Utah
Constitution, state statute, or a combination of the two.” Carter v.
State, 2015 UT 38, ¶ 19, 345 P.3d 737. And the Utah Constitution
makes clear that “[t]he district court shall have appellate jurisdiction
as provided by statute.” UTAH CONST. art. VIII, § 5 (emphasis added).
¶13 Chapter 31 of the Utah County Code provides that an
appeal of the Utah County Board of Commissioners’ decision can be
taken in a state district court. UTAH COUNTY CODE § 31-1-5. But

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section 31-1-5 is a county ordinance; a county ordinance is not a state
statute. Therefore, the Utah County Code cannot convey appellate
jurisdiction to the district court or regulate procedures for an appeal.
Section 31-1-5 pretends to powers the county does not have. Put
succinctly, counties do not have the authority to grant appellate
jurisdiction to state district courts.3
¶14 This statement of law is necessarily narrow and pertains
only to grants of appellate jurisdiction by statute. The district court
retains original jurisdiction “in all matters civil and criminal, not
excepted in the Utah Constitution and not prohibited by law.” UTAH
CODE § 78A-5-102(1). Additionally, Utah Code section 78B-6-401(1)
affirmatively provides that “[e]ach district court has the power to
issue declaratory judgments determining rights, status, and other
legal relations within its respective jurisdiction.” We acknowledge
that these broad jurisdictional grants beg an answer to the question
as to whether the county ordinance is constitutional. Because we are
not asked to resolve this question, we decline to comment on the
matter. We are simply asked whether state district courts have
jurisdiction to review the decision of the Utah County Board of
Commissioners. It is sufficient to say that a county lacks the ability to
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3 There is also no statutory grant of appellate jurisdiction located

in the Utah Code that would vest district courts with appellate
jurisdiction over fines imposed under this county ordinance. Utah
Code section 78A-5-102 articulates multiple grants of appellate
jurisdiction to the district court. The only potentially relevant
section, section 7, states that the “district court has jurisdiction to
review . . . municipal administrative proceedings in accordance with
Section 10-3-703.7.” UTAH CODE § 78A-5-102(7)(b). Utah Code section
10-3-703.7, in turn, cabins this review by referring exclusively to
proceedings established by a “municipality.” Id. § 10-3-703.7(1). For
the purposes of this section, a municipality is defined as “(a) a city of
the first class, city of the second class, city of the third class, city of
the fourth class, city of the fifth class; (b) a town . . .; or (c) a metro
township. . . .” Id. § 10-1-104(5)(a)–(c). Notably, there is no mention
of a county. Additionally, article XI section 1 of the Utah
Constitution recognizes counties of the State of Utah “as legal
subdivisions of this State.” This makes clear that the term “county” is
a legally distinct term whose meaning is not to be merged with that
of cities or townships. There is therefore no grant of appellate
jurisdiction under Utah Code section 78A-5-102 that would permit a
district court to conduct an appellate review of a county
commission’s decision.

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create appellate jurisdiction via a county ordinance. We say nothing
as relates to the district court’s original jurisdiction.
II. THE TERM “BALLOT PROPOSITION” AS USED IN UTAH
CODE SECTION 20A-11-1205(1) INCLUDES THE ENTIRE
REFERENDUM PROCESS
¶15 The next question certified to us by the federal district court
involves reading several statutory provisions in conjunction with
each other: “Does the term ‘ballot proposition’ as used in Utah Code
Section 20A-11-1205(1) include a referendum during the period of
time before its sponsors have obtained the requisite number of
signatures on the referendum petition?” We answer that it does.
¶16 Downs was fined for violating Utah Code section
20A-11-1205(1)(b), which prohibits a person from sending “an email
using the email of a public entity . . . to advocate for or against a
ballot proposition.” Although section 1205 does not define “ballot
proposition,” the term is defined in both Utah Code section
20A-1-102(5) of the Election Code and Utah Code section
20A-11-1202(2) of the Political Activities of Public Entities Act—the
act Downs is alleged to have violated.
¶17 Our primary task when interpreting these provisions is to
give effect to the intent of the legislature. Harold Selman, Inc. v. Box
Elder Cty., 2011 UT 18, ¶ 18, 251 P.3d 804. We “presume that the
legislature used each word advisedly and read each term according
to its ordinary and accepted meaning.” Boyle v. Christensen, 2011 UT
20, ¶ 27, 251 P.3d 810 (citation omitted) (internal quotation marks
omitted). Additionally, “[w]herever possible, we give effect to every
word of a statute, avoiding [a]ny interpretation which renders parts
or words in a statute inoperative or superfluous.” Turner v. Staker &
Parson Cos., 2012 UT 30, ¶ 12, 284 P.3d 600 (second alteration in
original) (internal quotation marks omitted) (citing State v.
Arave, 2011 UT 84, ¶ 28, 268 P.3d 163).
¶18 It is admittedly difficult to interpret the language in
section 20A-11-1202(2). Specifically, when section 20A-11-1202(2)
defines “ballot proposition” as “constitutional amendments,
initiatives, referenda, judicial retention questions, opinion questions,
bond approvals, or other questions submitted to the voters for their
approval or rejection,” does the phrase “submitted to the voters for
their approval or rejection” apply only to “other questions” or to
every term in the preceding list? This is a familiar problem. The two
most relevant canons of statutory interpretation, the last-antecedent
canon and the series-qualifier canon, often compete with each other.
But context guides which canons we apply.

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¶19 The rule of the last antecedent is a canon of statutory
interpretation stating that “a limiting clause or phrase . . . should
ordinarily be read as modifying only the noun or phrase that it
immediately follows.” Lockhart v. United States, 136 S. Ct. 958, 962
(2016) (alteration in original) (citation omitted) (internal quotation
marks omitted). In Lockhart, the United States Supreme Court
analyzed 18 U.S.C. § 2252(b)(2), which prescribes a mandatory
sentencing range for persons with a prior conviction “relating to
aggravated sexual abuse, sexual abuse, or abusive sexual conduct
involving a minor or ward.” Relying on the last-antecedent canon,
the Court held that “‘involving a minor or ward’ modifies only
‘abusive sexual conduct,’ the antecedent immediately preceding it.”
Id. at 962. In this case, an application of the last-antecedent canon to
section 20A-11-1202(2) would mean that “submitted to the voters”
would apply only to “other questions.”
¶20 The series-qualifier canon, on the other hand, provides that,
“[w]hen there is a straightforward, parallel construction that
involves all nouns or verbs in a series, a prepositive or postpositive
modifier normally applies to the entire series.” ANTONIN SCALIA &
BRYAN A. GARNER, Reading Law: The Interpretation of Legal Texts 147
(2012). The classic example involves the text of the Fourth
Amendment to the United States Constitution. The relevant text
reads “[t]he right of the people to be secure . . . against unreasonable
searches and seizures, shall not be violated.” U.S. CONST. amend. IV.
Applying the series-qualifier canon, we and others read this text as
barring both unreasonable searches and unreasonable seizures. In
other words, both nouns in the series are qualified by the preceding
adjective “unreasonable.” This canon can also be applied when, as
with Utah Code section 20A-11-1202(2), the modifier is positioned
after what it modifies. To apply this canon to section 20A-11-1202(2)
would mean that “submitted to the voters” modifies the entire list of
preceding terms, not just “other questions.”
¶21 We have applied this canon before and said that
“[q]ualifying words and phrases are generally regarded as applying
to the immediately preceding words, rather than to more remote
ones.” LPI Servs. v. McGee, 2009 UT 41, ¶ 15, 215 P.3d 135 (alteration
in original) (citation omitted) (internal quotation marks omitted).
This is of course not an iron-clad rule as we have also said “the rule
of the last antecedent does not mandate that qualifying rules and
phrases only apply to the immediately preceding words; rather[,]
when given a choice between the immediately preceding words and
more remote words, we prefer the words closer in proximity.” Id.
Such a choice is given us here and context makes clear that

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Opinion of the Court
application of the last-antecedent canon yields the better reading of
the statute.
¶22 Reading section 20A-11-1202(2) in context necessitates that
we apply the last-antecedent canon. We read the phrase “or other
questions submitted to the voters for their approval or rejection” in
Utah Code section 20A-11-1202(2) as a catchall addition to the
statute’s text, meant by the legislature to include any other type of
question, not necessarily included by name in the preceding list,
submitted to voters. “[O]ther questions submitted to the voters”
merely reflects the legislature’s desire to include any categories of
questions submitted to the voters that were not explicitly included in
the list in section 1202(2). This reading—an application of the
last-antecedent canon—gives meaning to the entire text, as every
term in the preceding list—constitutional amendments, initiatives,
referenda, judicial retention questions, opinion questions, bond
approvals—is already something that ends up submitted to the
voters. In other words, “submitted to the voters” would be entirely
superfluous as applied to all the preceding terms in the list because
all of those things are already submitted to the voters. Therefore, in
context, the better reading of the statute is reached through the use
of the last-antecedent canon.
¶23 Having determined that the term we must interpret is
“referenda”—as opposed to “referenda submitted to the voters”—it
seems obvious to us that a referendum encompasses the totality of
the referendum process. The Election Code defines a referendum as
“a process by which a law passed by the Legislature or by a local
legislative body is submitted or referred to the voters for their
approval or rejection.” UTAH CODE § 20A-7-101(18) (emphasis
added) 4; see also Referendum, BLACK’S LAW DICTIONARY (11th ed. 2019)
(“The process of referring a state legislative act, a state constitutional
amendment, or an important public issue to the people for final
approval by popular vote.” (emphasis added)). Therefore, to speak
of a referendum is to speak of the entire ordered process by which
citizens submit questions to voters—a process initiated by the filing
of an application with the local clerk. See Tobias v. S. Jordan City
Recorder, 972 P.2d 373, 374 (Utah 1998) (“Sponsors who wish to
circulate a referenda petition start the process by filing an
application with the ‘local clerk’ . . . .”). Indeed, a close reading of
Utah Code section 20A-7-609(2)(a) confirms that the legislature has
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4 Utah Code section 20A-7-101(18) has since been renumbered as
section 20A-7-101(20). The text of the two provisions is identical.

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also understood referenda to be a process: “[T]he county clerk shall
ensure that county referenda that have qualified for the ballot appear
on the next regular general election ballot.” UTAH CODE
§ 20A-7-609(2)(a). This statutory language marks a clear delineation
between referenda that have qualified for a ballot and referenda that
have not—but both are still referenda. 5 A referendum is the total
process, not just the question that is ultimately submitted to a
democratic vote. Therefore, the term “ballot proposition” as used in
Utah Code section 20A-11-1205(1) includes all phases of the
referendum process, including the signature gathering phase.
III. A “BALLOT PROPOSITION” AS USED IN UTAH CODE
SECTION 20A-11-1205(1) INCLUDES THE ENTIRETY OF THE
REFERENDUM PROCESS EVEN IF THE CHALLENGED LOCAL
GOVERNMENT ACTION IS LATER FOUND TO BE
ADMINISTRATIVE IN NATURE AND THEREFORE NOT SUBJECT
TO A REFERENDUM
¶24 The last question certified by the federal district court asks
us whether “the term ‘ballot proposition’ as used in Utah Code
Section 20A-11-1205(1) includes a referendum during the signature
gathering phase if the challenged local government action is later
found to be administrative in nature and therefore not subject to a
referendum.” Because we define a referendum as the entire
referendum process, it logically follows that an attempted
referendum process that is later found to pertain to an
administrative action—and is therefore not properly subject to a
referendum—is still a referendum and therefore a “ballot
proposition” as used in Utah Code section 20A-11-1205(1).

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5 Although we have never explicitly said this with regard to

referenda, we have articulated this total process based definition in
regards to initiative processes:
The voters’ right to initiative does not commence at the
ballot box: The voters’ right to legislate via initiative
includes signing a petition to get the proposed initiative
on the ballot. Signing a petition is inextricably
connected to the voters’ right to vote on an initiative
because it serves a gatekeeping function to the right to
vote. Accordingly, [t]he use of . . . petitions . . . to obtain
a place on the [state’s] ballot is an integral part of [its]
elective system.
Gallivan v. Walker, 2002 UT 89, ¶ 26, 54 P.3d 1069 (alterations in
original) (citation omitted) (internal quotation marks omitted).

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¶25 “Article VI, section 1 of the Utah Constitution vests
‘Legislative power’ in ‘the people of the State of Utah’ and provides
for its exercise through ballot initiatives and referenda.” Carter v. Lehi
City, 2012 UT 2, ¶ 17, 269 P.3d 141 (quoting UTAH CONST. art VI, § 1).
However, the legislative power may not trammel the executive
power and there are limits to the people’s power of initiative and
referenda. Id. An initiative or referendum is only permissible if it is
legislative in nature and is conversely forbidden if it is
administrative. See, e.g., Baker v. Carlson, 2018 UT 59, 437 P.3d 333.
“This legislative/administrative distinction is a reflection of our
constitution’s explicit and strict separation of powers, which is set
forth in article V.” Carter, 2012 UT 2, ¶ 17.
¶26 Under Utah Code section 20A-7-602(1), “[p]ersons wishing
to circulate a referendum petition shall file an application with the
local clerk.” 6 The petition shall include “at least five sponsors” and
explain what law or laws are challenged by the referendum petition.
Id. Utah Code section 20A-7-604(2) mandates the duties of the local
clerk: “Within five days after the day on which a local clerk receives
an application that complies with the requirements of Section
20A-7-602, the local clerk shall furnish to the sponsors (a) five copies
of the referendum petition; and (b) five signature sheets.” 7 At this
stage in the referendum process, the local clerk has no discretion to
refuse to supply citizens with the packets for a referendum petition
or to make an authoritative determination as to whether the petition
may ultimately reach the ballot. 8

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6 Utah Code section 20A-7-602(1) has since been amended to
state: “An eligible voter wishing to circulate a referendum petition
shall file an application with the local clerk.”
7 Utah Code section 20A-7-604(2) has since been amended to
read: “Within five days after the day on which a county, city, town,
metro township, or court determines, in accordance with
Section 20A-7-602.7, that a proposed referendum is legally referable
to voters, the local clerk shall furnish to the sponsors a copy of the
referendum petition and a signature sheet.”
8 Upon receipt of the citizens’ application in this case, the Orem
City Attorney advised them that the 2016 Resolution was an
administrative act and would therefore not be referable. But, as
required by law, the local clerk furnished the citizens with
referendum packets and the process continued.

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¶27 The local clerk’s discretion to reject a referendum petition
does not vest until the requisite number of signatures has been
gathered and the completed application is submitted for approval.
As we said in Taylor v. South. Jordan City Recorder, “Any
determination [by the local clerk] of whether the subject matter is
appropriate for the initiative process is proper only after the petition
has been issued, completed, and returned.” 972 P.2d 423, 424 (Utah
1998). In this case, Orem rejected the citizens’ completed petition
because, in its estimation, the 2016 Resolution concerned an
administrative action and was therefore not referable. But any
decision made by the local clerk on the administrative/legislative
nature of the subject of a referendum is subject to review by the
courts. See, e.g., Baker, 2018 UT 59, ¶ 7 (citizens seeking judicial
review of local clerk’s determination that city’s action was
administrative in nature and therefore not referable). 9
¶28 We take the time to recount all the steps in the referendum
process because it is important to our answer to the certified
question. As we have just detailed, the entire referendum process is
part and parcel to the definition of “referendum.” Indeed, a
referendum cannot exist in the absence of the many necessary steps
taken along the way. The fact that a referendum ultimately turns out
to be a doomed referendum does not alter its fundamental character
throughout the process. We see no prudence in creating a twilight
zone in which an action taken by citizens, in full compliance with the
statutory guidelines for referenda, is not considered a referendum
until later definitively proven to be legislative in nature. The
opposite is the case. A referendum may be destined to ultimately fail
because it pertains to an administrative action, but it nonetheless
remains a referendum at every stage along the way and, therefore, a
referendum in the signature gathering phase is a “ballot
proposition” under Utah Code section 20A-2-1205(1).
CONCLUSION
¶29 We state as matters of law in answer to the federal district
court’s certified questions that: (1) without saying anything about
Utah state district courts’ original jurisdiction, Utah state district
courts do not have appellate jurisdiction to review the decision of the
Utah County Board of Commissioners upholding a fine levied under

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9 In this case, no judicial determination has been made as to
whether Resolution 2016-0012 is administrative or legislative in
nature.

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Utah Code section 20A-11-1205; (2) the term “ballot proposition” as
used in Utah Code section 20A-11-1205(1) includes the entire
referendum process and therefore encompasses the period of time
before a referendum’s sponsors have obtained the requisite number
of signatures on the referendum petition; and (3) the term “ballot
proposition” as used in Utah Code section 20A-11-1205(1) includes
the signature gathering phase of the referendum process, regardless
of whether the challenged local government action is later found to
be administrative in nature and therefore not subject to a
referendum.

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