Downs v. Thompson et al

Filing 49

MEMORANDUM DECISION AND ORDER - The court requests the parties' input in reformulating the questions contained in the attached Order, or others, to certify to the Utah Supreme Court. The parties are ordered to submit their proposed questions by 8/27/2018. The parties' filings may not exceed seven pages. Signed by Judge Dale A. Kimball on 8/16/2018. (eat)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
STEVEN DOWNS, Assistant to the Orem City
Manager;
Petitioner,

MEMORANDUM DECISION AND
ORDER
Case No. 2:17-cv-00330

v.
District Judge Dale A. Kimball
BRYAN THOMPSON, Utah County
Clerk/Auditor, the BOARD OF COUNTY
COMMISSIONERS OF UTAH COUNTY,
and UTAH COUNTY, a political subdivision
of the State of Utah,
Respondents.

On August 1, 2018 the court held a hearing on Respondents Motion for Summary
Judgment. At the hearing, the court ordered the parties to brief whether Petitioner Steven Downs
has standing because the parties asserted that this case was over a $250 fine levied against
Downs, but the fine had already been paid by an anonymous donor. In the briefing, Downs
attached an email dated March 30, 2017, where he asked the Bryan Thompson, the Utah County
Clerk, not to accept the anonymous payment. Exhibit Letter from County & Downs Response,
Exh. 2, (Dkt. No. 48-2). The court therefore finds that the payment against Downs is still
outstanding and Downs has therefore established a legal injury to confer standing. Accordingly,
the court finds that Downs has standing to bring his claim.
At the hearing, the parties noted that this was the first time that a fine has been levied
pursuant to Utah Code Section 20A-11-1205. Pursuant to the statute, “[t]he applicable election
officer shall impose a civil fine against a person who violates [the statute]. Id. The Respondent

asserts that Downs violated the statute by using the email of a public entity to advocate for or
against a ballot proposition.
Rule 41(a) of the Utah Rules of Appellate Procedure provides that Athe Utah Supreme
Court may answer a question of Utah law certified to it by a court of the United States when
requested to do so by such certifying court . . . if the state of the law of Utah applicable to a
proceeding before the certifying court is uncertain.@ Utah R. App. P. 41(a). The certification
order must state the Aquestion of law to be answered,@ Athat the question certified is a controlling
issue of law in a proceeding pending before the certifying court,@ and Athat there appears to be no
controlling Utah law.@ Id. 41(c). Courts have found that certification is appropriate Awhen the
case concerns a matter of vital public concern, where the issue will likely recur in other cases,
where resolution of the question to be certified is outcome determinative of the case, and where
the state supreme court has yet to have an opportunity to illuminate a clear path on the issue.@
State Farm Mut. Auto Ins. Co. v. Pate, 275 F.3d 666, 672 (7th Cir. 2001). A court should
consider whether certification of the issue Awould further the interest of comity and federalism
by giving the Utah Supreme Court an opportunity to answer it in the first instance should it elect
to do so under Utah R. App. P. 41.@ See Ohio Cas. Ins. v. Unigard Ins. Co., 2009 WL 1160297
at *5 (10th Cir. April 28, 2009).
Because this is the first time a fine has been levied pursuant to Utah Code Section 20A11-1205, the parties raised intricate issues involving Utah State law. These issues include: 1) Is
there jurisdiction for a district court to review a Utah County Commissioners’ decision
upholding a fine levied pursuant to Utah Code Section 20A-11-1205; and 2) Does Utah Code
Section 20A-11-1205 allow an election officer to levy a fine against a person who uses their
public entity email to advocate against a proposed ballot proposition that has begun collecting

signatures when the proposed ballot proposition contains subject matter that is administrative in
nature and therefore cannot be subject to referendum.
The court requests the parties’ input in reformulating the above questions, or others, to
certify to the Utah Supreme Court. The parties are ordered to submit their proposed questions by
August 27, 2018. The parties’ filings may not exceed seven pages.
Dated this 16th day of August, 2018.
BY THE COURT:
____________________________________
DALE A. KIMBALL,
United States District Judge