Downs v. Thompson et al
Filing
73
MEMORANDUM DECISION AND ORDER Dismissing Plaintiff's First, Second, Third, and Fourth Causes of Action. The court directs the parties to file new motions focused solely on Plaintiff's Fifth and Sixth Causes of Action on or before January 24, 2020. Once the parties have filed their new motions, they are to follow the ordinary filing times and length requirements contained in the local rules. In addition, per the parties' agreement, the court hereby terms the pending motions for summary judgment [ECF Nos. 23 and 37 ]. Signed by Judge Dale A. Kimball on 12/13/2019. (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
v.
Case No. 2:17-cv-00330-DAK
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,
Judge Dale A. Kimball
Respondents.
This matter is before the court on the parties’ supplemental briefing regarding the Utah
Supreme Court’s recent opinion answering questions certified by this court. The court has
reviewed the parties’ supplemental briefing. Based on that briefing, and considering the law and
facts related to this case, the court issues the following Memorandum Decision and Order.
FACTUAL BACKGROUND
Pursuant to Utah Code Section 20A-11-1205(1)(b), “a person may not send an email
using the email of a public entity to advocate for or against a ballot proposition.” “The
applicable election officer shall impose a civil fine against a person who violates [the statute] up
to $250 for a first violation.” Id.
Petitioner Steven Downs (“Downs”) resides in Orem, Utah and is employed as the
Assistant to the Orem City Manager. Downs has been employed in this capacity since March 3,
2014. On April 26, 2016, the Orem City Council passed Orem City Resolution R2016-0012 (the
“Resolution”) authorizing the Orem Mayor to sign two agreements. The first agreement was a
lease agreement with the Utah Transit Authority (“UTA”) in which the city agreed to lease a
strip of 400 West Street approximately 10 feet wide and 205 feet long for a dedicated Bus Rapid
Transit lane (the “BRT Project”). The second agreement was an inter-local agreement with
Provo, UDOT, UTA, and Mountainland Association of Governments in which the parties created
a project management committee and an executive committee which were authorized to make
decisions regarding the BRT Project.
On April 27, 2016, several individuals (the “Referendum Petitioners”) filed a referendum
petition application with the Orem City Recorder. The referendum petition (the “BRT
Referendum”) challenged the Resolution and sought voter approval to place issues related to the
Resolution on the ballot during the next election.
On May 16, 2016, Downs sent an email in which he invited Orem delegates to attend a
meeting in opposition to the BRT Referendum and specifically invited them to attend a meeting
which had been scheduled to provide positive information regarding the BRT Project.
On May 31, 2016, Respondent Utah County Clerk/Auditor Bryan Thompson notified
Downs that residents filed a complaint with the Utah Lt. Governor’s Office alleging that Orem
City personnel used a city email to influence the outcome of the BRT Referendum. The letter
from Thompson further informed Downs that his email violated the Political Activities of Public
Entities Act (“PAPEA”) because it was sent from an Orem City email account and “advocated”
against the current referendum process associated with the proposed BRT Project. The letter
informed Downs that Thompson had assessed a $250 fine against him for a first infraction under
Utah Code Section 20A-11-1205(2)(a).
On July 21, 2016, the Orem City Recorder denied the BRT Referendum because it
concerned an administrative matter that was not subject to a referendum. The denial included a
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letter from the Orem City Attorney stating that the BRT Referendum was not referable because
the Resolution passed by the City was not a law, but an administrative act, and administrative
acts are not referable.
On June 28, 2016, the Orem Deputy Attorney Steven C. Earl (“Deputy Attorney Earl”)
sent a letter to Thompson in which he requested a hearing to appeal the fine assessed against
Downs. On September 6, 2016, the Board of Utah County Commissioners (the “Board”)
established an official appeal process for any person upon whom the Utah County Clerk/Auditor
imposes a fine pursuant to Utah Code Section 20A-11-1205. On December 13, 2016, the Board
held a hearing to determine the validity of the civil fine assessed against Downs under PAPEA.
At the hearing, Deputy Attorney Earl made arguments against the fine. Additionally, prior to
any hearing, he had submitted a detailed brief of legal arguments and authorities against the fine
to the Board.
Following a closed meeting, the Board reconvened its regular meeting and announced its
decision that the BRT Referendum constituted a “ballot proposition” and to uphold the fine assessed
against Downs. Two Commissioners voted to uphold the fine while one voted against upholding
the fine. Specifically, the Board found that Downs’ email “advocated” against the BRT
Referendum because it contained only information from opponents of the BRT Referendum,
invited recipients to attend a meeting held by the opponents of the BRT Referendum, distributed
a link to the anti-Petition “knowbeforeyousign.com” website with the heading “PROVO
CITIZEN GROUP ADVOCATES FOR BRT,” did not contain any information summarizing
arguments in favor of the BRT Referendum, and did not grant equal access to proponents of the
BRT Referendum.
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On November 7, 2016, the Referendum Petitioners filed a petition in the Fourth Judicial
District for Utah County, Civil No. 160401698, seeking an order compelling the Orem City
Recorder to accept the BRT Referendum for the November 2017 municipal general election. On
May 2, 2017, the Utah State trial court in a suit between entities not party to this suit, noting that
the question presented “a difficult and close case,” concluded that the BRT Referendum was
administrative in nature and therefore not properly subject to the referendum process.
PROCEDURAL BACKGROUND
Downs initiated the instant suit in Utah state court on January 19, 2017, and Respondents
timely removed the case to this court. In his complaint, Downs raises six causes of action: (1) an
appeal of the decision rendered by the Board; (2) a declaratory judgment that there was no
“ballot proposition” at the time of the alleged violation because the BRT Referendum concerned
an administrative action for which no referendum was legally available; (3) a declaratory
judgment that there was no “ballot proposition” at the time of the alleged violation because the
BRT Referendum had not qualified for the ballot; (4) a declaratory judgment that his email did
not “advocate” against a “ballot proposition”; (5) a declaratory judgment that Utah Code Section
20A-11-1205 is void for vagueness both facially and as applied; and (6) violation of his due
process rights.
On March 7, 2018, Respondents filed a motion for summary judgment to dismiss each of
Downs’ claims. On May 24, 2018, Downs filed a motion for partial summary judgment on his
First, Second, Third, and Sixth Causes of Action. The court held a hearing on the motions on
August 1, 2018. At the hearing, the parties noted that this was the first time that a fine had been
levied against an individual pursuant to Utah Code Section 20A-11-1205 and so raised new,
intricate issues under Utah state law. Given that there was no controlling Utah law on those
4
issues, the court certified three questions to the Utah Supreme Court in order to assist in
resolving the motions. Those questions were:
1) Does a Utah 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-111205(1) include a referendum during the period of time before its sponsors have
obtained the requisite number of signatures on the referendum petition?
3) Does the term “ballot proposition” as used in Utah Code Section 20A-111205(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?
The Utah Supreme Court recently issued its opinion (the “Opinion”) regarding the above
questions. In the Opinion, the Utah Supreme Court answered the certified questions in the
following manner:
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. . . .
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.
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.
Downs v. Thompson, 2019 UT 63, ¶¶ 2–4. In light of the Utah Supreme Court’s answers, the
court directed the parties to file supplemental briefing discussing the effects of the Opinion on
Downs’ claims.
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DISCUSSION
The parties largely agree as to how the Opinion affects Downs’ claims. First, they both
agree that the Opinion resolves Downs’ first, second, and third claims and so should be
dismissed because this court lacks appellate jurisdiction to review the Board’s decision and there
was a “ballot proposition” at the time of the alleged violation. Second, the parties agree that the
Opinion did not resolve Downs’ fifth and sixth claims. Accordingly, the parties suggest that they
withdraw their pending motions for summary judgment and engage in new briefing focused
solely on Downs’ remaining claims. The court concurs with the parties on these points.
As for Downs’ fourth claim, the parties are not in agreement. As stated above, Downs’
fourth claim seeks a declaratory judgment that his email did not “advocate” against a “ballot
proposition.” Respondents contend that the Opinion resolves this claim, and it should be
dismissed. They argue that Downs is essentially asking the court to review and reverse the
Board’s decision that Downs “advocated” in the email, but those are actions the court cannot
take because the court lacks appellate jurisdiction. They further contend that the request for
declaratory judgment cannot be divorced from the Board’s decision itself because the Board’s
decision is the only reason why Downs filed this claim.
Conversely, Downs avers that the Opinion has no bearing on his fourth claim. First,
Downs points out that this issue was not included in the certified questions submitted to the Utah
Supreme Court. Second, Downs argues that his fourth claim does not discuss the Board’s
decision, but only mentions the contents of the email, and why it did not “advocate” against a
“ballot proposition.” Third, Downs contends that his fourth claim is not attempting to revise or
correct the Board’s decision, but instead, simply seeks a judicial declaration to resolve a legal
uncertainty between the parties.
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After reviewing the parties’ arguments, the court concludes that Downs’ fourth claim
must be dismissed. The court agrees with Respondents’ characterization of the fourth claim in
that it cannot be divorced from the Board’s decision. For the court to consider whether Downs’
email “advocated” against a “ballot proposition,” it would necessarily be required to review the
Board’s decision, which it cannot do. And even if the court considered and rendered a decision
on the fourth claim, that decision would be meaningless and have no effect on the rights of the
parties because the court has no power to review or overturn the Board’s decision. North
Carolina v. Rice, 404 U.S. 244, 246 (1971) (“[F]ederal courts are without power to decide
questions that cannot affect the rights of litigants in the case before them.”).1 Accordingly, the
court concludes that Downs’ fourth claim must be dismissed.
CONCLUSION
Based on the foregoing reasoning, Downs’ First, Second, Third, and Fourth Causes of
Action are hereby dismissed. The court directs the parties to file new motions focused solely on
Downs’ Fifth and Sixth Causes of Action on or before January 24, 2020. Once the parties have
filed their new motions, they are to follow the ordinary filing times and length requirements
contained in the local rules. In addition, per the parties’ agreement, the court hereby terms the
pending motions for summary judgment [ECF Nos. 23 and 37].2
1
More on this point, the Tenth Circuit has opined that “[i]t is well established that what makes a declaratory
judgment action a proper judicial resolution of a case or controversy rather than an advisory opinion is the settling of
some dispute which affects the behavior of the defendant toward the plaintiff.” Jordan v. Sosa, 654 F.3d 1012, 1025
(10th Cir. 2011). Here, a decision on the fourth claim would neither settle Downs’ dispute nor affect the behavior of
Respondents toward him because such a decision would effectuate no change to the Board’s determination that
Downs’ email “advocated” against a “ballot proposition.”
2
Because this Memorandum Decision and Order terms the pending motions for summary judgment, the parties need
not go through the added time and expense of withdrawing them.
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Dated this 13th day of December, 2019.
BY THE COURT:
____________________________________
DALE A. KIMBALL
United States District Judge
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