2022 UT 41

IN THE

SUPREME COURT OF THE STATE OF UTAH

UTAH DEMOCRATIC PARTY and JOSHUA HARDY,

Petitioners,

v.

DEIDRE M. HENDERSON, in her Official Capacity as

Lieutenant Governor of Utah, and

JOEL FERRY, individually and in his Official Capacity as acting 

director of the Utah Department of Natural Resources,

Respondents.

No. 20220826

Filed December 15, 2022

On Motion for Emergency Relief and Petition for Extraordinary Writ

Attorneys:

David P. Billings, Salt Lake City, for petitioners

Stanford E. Purser, Dep. Solic. Gen., Peggy E. Stone, Asst. Solic. Gen., 

Scott Cheney, Jason Dupree, Asst. Atty‟s Gen., Salt Lake City,

for respondent Deidre M. Henderson 

Sean D. Reyes, Att‟y Gen., Andrew Dymek, Erin T. Middleton, 

Stephen W. Geary, Sarah Goldberg, Asst. Solics. Gen., 

Salt Lake City, for respondent Joel Ferry

PER CURIAM:

¶ 1 This case arises from a motion for emergency relief and a 

petition for extraordinary writ. We previously denied the motion in 

an order issued on September 22, 2022, and indicated we would 

issue a subsequent opinion. We now set forth the basis for the denial 

of the motion and we deny the petition for extraordinary writ for the 

same reason.

BACKGROUND

¶ 2 On February 28, 2022, Joel Ferry, an incumbent member of 

the Utah Legislature, filed a declaration of candidacy for re-election 

to his seat for District 1 of the Utah House of Representatives. Joshua 

Hardy submitted a declaration of candidacy for the same seat. The

Lieutenant Governor‟s Office accepted those declarations. Mr. Ferry 
UTAH DEMOCRATIC PARTY v. HENDERSON

Per Curiam

2

was subsequently selected to represent the Utah Republican Party as 

its candidate for House District 1, and Mr. Hardy was selected to 

represent the Utah Democratic Party (UDP) as its candidate for the 

same seat.

¶ 3 On June 24, 2022, Governor Spencer Cox appointed Mr. Ferry 

as the Director of the Department of Natural Resources (DNR), 

which is a position that requires the approval of the Utah Senate. 

Shortly thereafter, Mr. Ferry began serving as the acting director of 

the DNR pending approval of his appointment.1

¶ 4 On August 17, two weeks before the deadline for the 

Lieutenant Governor to certify candidates for ballots for the 

November 2022 general election, the UDP and Mr. Hardy sent a 

letter to the Lieutenant Governor, Deidre Henderson, and the 

Director of Elections, Ryan Cowley. That letter raised concerns about 

Mr. Ferry holding his House seat while he worked for the DNR. It 

also claimed Mr. Ferry‟s acceptance of an appointment to an 

executive branch office disqualified him from serving in the 

Legislature or being a candidate in the upcoming general election,

and it requested that his name be removed from the ballot.

¶ 5 On August 24, Lieutenant Governor Henderson replied. 

With regard to Mr. Ferry‟s circumstances, she “ma[de] no conclusion 

regarding the constitutionality of his status as a legislator or as 

acting director of the Utah Department of Natural Resources.”2 And 

as to the upcoming election, she reasoned “[his] status as a current or 

former legislator d[id] not affect his status as a candidate and d[id] 

not require . . . [his] remov[al] . . . from the November ballot.” 

Lieutenant Governor Henderson recited several statutory grounds 

for forfeiture of a position on the ballot, including death, resignation 

as a consequence of disability or a decision to run for the presidency 

or vice presidency of the United States as referenced in section 20A1-501 of the Utah Code, failure to file a financial statement or report 

required by section 20A-11-305, or voluntary withdrawal as 

contemplated by subsection 20A-9-202(6). She then stated that, “[i]n 

the absence of any of [those specified] circumstances, there [was] no 

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1 It appears Mr. Ferry was confirmed as Director on September 

21, 2022.

2 Shortly thereafter, Mr. Ferry resigned his seat in the Legislature,

but he did not withdraw his name as a candidate for the 2022 general 

election.
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3

statutory basis on which [she could] affirmatively disqualify a 

candidate.” 

¶ 6 On August 31, the Lieutenant Governor‟s Office certified to 

the county clerks the names of the candidates for elected offices, 

including Mr. Ferry‟s name. See UTAH CODE § 20A-9-701. Following 

an unsuccessful attempt to raise state law claims in federal court,3

the UDP and Mr. Hardy filed this petition for extraordinary writ on 

Friday September 16, 2022. They simultaneously filed a motion for 

emergency relief.

¶ 7 The petitioners stated their claims for relief in varying terms,

but they fundamentally sought an order compelling the Lieutenant 

Governor to remove Mr. Ferry from the ballot.4 The petition stated: 

“The case must be resolved before overseas ballots are sent on 

September 23.”5 See 52 U.S.C. § 20302(a)(8)(A). On September 21,

Lieutenant Governor Henderson and Mr. Ferry filed responses to the 

motion for emergency relief. On September 22, we issued an order 

summarily denying the motion for emergency relief and indicating 

this opinion would follow. On September 27, Lieutenant Governor 

Henderson and Mr. Ferry filed separate responses to the petition for 

extraordinary writ.

_____________________________________________________________

3 The federal district court declined to exercise supplemental 

jurisdiction over the state law claims and denied a motion for a 

preliminary injunction in relation to certain federal law claims. It 

appears those federal law claims were still pending in the federal 

action when the petition and motion raising state law claims were 

filed with us.

4 The petitioners also requested an award of attorney fees and 

costs pursuant to Utah Code section 78B-6-609. That request is 

denied.

5 Another portion of the petition treats the deadline as September 

24. The federal statute, 52 U.S.C. § 20302(8)(A), requires mailing at 

least 45 days before the general election. This year, that deadline fell 

on Saturday, September 24; and state election officials treated it as 

occurring on the immediately preceding business day, or September 

23. Regardless of which date constituted the deadline, our analysis of 

the motion and the petition is the same.
UTAH DEMOCRATIC PARTY v. HENDERSON

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ANALYSIS

¶ 8 We now explain the reason for our denial of the motion for 

emergency relief. And we rely on the same reason for denying the 

petition for extraordinary writ.

¶ 9 A motion for emergency relief under rule 23C of the Rules of 

Appellate Procedure “should not incorporate requests for relief that 

require something less than emergency treatment.” Snow, Christensen 

& Martineau v. Lindberg, 2009 UT 72, ¶ 7, 222 P.3d 1141 (per curiam) 

(addressing predecessor provision located in Rule 8A). In this case, 

the petition‟s statement that the “[t]he case must be resolved before 

overseas ballots are sent on September 23” made clear that the 

motion and the petition sought the same relief, consisting of an 

emergency order mandating a ballot change prior to the deadline 

imposed by federal law for mailing ballots to eligible voters residing 

outside the United States.6

¶ 10 A petitioner requesting an extraordinary writ also “must 

demonstrate that the court should exercise its discretion to grant 

relief.” Gilbert v. Maughan, 2016 UT 31, ¶ 18 n.7, 379 P.3d 1263 (citing

State v Barrett, 2005 UT 88, ¶ 24, 127 P.3d 682). And a petitioner 

claiming that an exercise of the court‟s discretion is warranted 

likewise must demonstrate the timeliness of the petition and the 

availability of the relief requested. See, e.g., Krejci v. City of Saratoga 

Springs, 2013 UT 74, ¶ 10, 322 P.3d 662 (explaining that rule 19 of the 

Rules of Appellate Procedure does not supply “a remedy for selfimposed emergencies”); Gricius v. Cox, 2015 UT 86, ¶ 5, 365 P.3d 1198

(per curiam) (“[A]n appellate court . . . ordinarily may grant 

[extraordinary] relief [in the first instance] only if that relief is based 

on allegations properly supported by affidavit or other reliable 

documentation.”); cf. Snow, Christensen & Martineau, 2009 UT 72, ¶ 7 

n.2 (explaining that emergency relief is not warranted where the 

“„emergency‟ has arisen from petitioners‟ own unjustified delay in 

seeking relief”).

_____________________________________________________________

6 The petitioners raised no claim in the petition or motion that 

Mr. Ferry was not qualified for legislative office at the time he filed

his declaration of candidacy. Rather, they maintained that he became 

unqualified as soon as he was appointed as Director of the DNR and 

that he did not intend to assume the legislative office for which he 

was running.
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5

¶ 11 In this case, Mr. Ferry‟s appointment as Director of the 

DNR was announced on June 24, and the UDP and Mr. Hardy did 

not ask the Lieutenant Governor to remove Mr. Ferry from the ballot 

until August 17. They then filed their petition with us on September 

16, only one week before the mailing deadline referenced in that 

petition. Moreover, neither the petition nor the motion supplied a 

factual basis for us to assume that a change to the ballot prior to the 

mailing deadline would be available as of the date the petition and

motion were filed, let alone within the much shorter period of time 

that would remain after the respondents were afforded their right to 

adequate notice and an opportunity to respond. The response to the 

motion for emergency relief was not due until September 21.7 And 

the response to the petition was not due until September 28, well 

after the mailing deadline. If anything, the documentation 

accompanying the petition and motion strongly suggested that there 

would not be time to alter the ballots before the mailing deadline

even if the court ruled immediately after the response to the motion 

was filed.

8 Because the motion and petition failed to demonstrate 

that the relief the petitioners requested was timely sought and 

available, we decline to exercise our discretion to grant the motion 

on an emergency basis. For the same reason, we decline to exercise 

our discretion to grant the petition.

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7 To afford respondents due process, rule 23C specifies a period 

of three business days after service of the motion to file responses to 

a motion for emergency relief. See UTAH R. APP. P. 23C(d). In this 

case, the deadline for response was September 21.

8 The petition included an affidavit submitted by Mr. Cowley in 

the federal court action. That affidavit detailed the processes for 

third-party vendors to prepare and print ballots, asserted changes to 

the ballot generally must be submitted prior to the certification 

deadline, and claimed uncertainty as to whether any changes could 

be made before the petition and motion were filed with us.