2021 UT 10

IN THE

SUPREME COURT OF THE STATE OF UTAH

KENT SMITH, CHANDRA SMITH, EDWARD M. DUKE,

SHARON P. DUKE, and TIMOTHY SYNDERGAARD,

Appellees,

v.

DAVID ZOOK, in his capacity as the

City Manager/Recorder/Local Clerk of Nibley City,

Appellee,

and

RETURN DEVELOPMENT LLC,

Appellant/Intervenor.

No. 20200674

Heard February 17, 2020

Filed April 15, 2021

On Direct Appeal

First District, Cache County

The Honorable Brian G. Cannell

No. 200100186

Attorneys:

Daniel K. Dygert, Logan, for appellees

Eric Todd Johnson, Robert A. Patterson, Salt Lake City,

for appellee

David K. Broadbent, Christopher R. Hogle, Chelsea J. Davis,

Salt Lake City, for appellant/intervenor

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in 

which CHIEF JUSTICE DURRANT, JUSTICE HIMONAS, JUSTICE PEARCE, 

and JUSTICE PETERSEN joined.
SMITH v. RETURN DEVELOPMENT

Opinion of the Court

2

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:

¶1 Nibley City enacted an ordinance approving a 

development project on property owned by Return Development

LLC. Several citizens opposed the ordinance and collected 

signatures in support of a referendum petition. Some of the 

signatures were collected through paper “referendum packets” 

presented to voters in person. Others were collected through a 

process initiated by a document sent to voters by mail, which 

directed them to an online version of the referendum packet.

¶2 The Nibley City Recorder rejected the referendum 

petition on the ground that the signatures collected in response to 

the mailer were not valid, legal signatures. That decision was 

overruled by the district court. We reverse. We conclude that the 

signatures procured through the mailed document were not valid 

because the sponsors failed to “create” a “referendum packet” 

that provided “a copy of the referendum petition, a copy of the 

law that is the subject of the referendum, and . . . signature sheets” 

that were bound “together . . . in such a way that the packets may 

be conveniently opened for signing.” See UTAH CODE § 20A-7-

604(4). And we hold that this statutory requirement was not 

altered when the governor suspended enforcement of some 

Election Code provisions in an executive order entered in 

response to the COVID-19 pandemic. See Utah Exec. Order 2020-

14 (April 3, 2020).

I

¶3 The Utah Constitution guarantees the right of voters to 

challenge a law by referendum “under the conditions [and] in the 

manner . . . provided by statute.” UTAH CONST. art. VI, § 1(2)(b).

Our Election Code, in turn, sets forth the conditions and manner 

by which voters may initiate and pursue the process for getting a 

referendum on the ballot. See UTAH CODE § 20A-7-101 et seq.

¶4 In the paragraphs below we first outline the statutory 

referendum standards that form the background of the case before 

us. Then we describe the process that was followed in this case, 

culminating in the denial of the referendum petition at issue and 

the district court’s decision to overrule that denial on a petition for 

extraordinary writ.

A

¶5 A challenge to a local law is initiated when a voter, 

supported by five “sponsors,” files an application for a 
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Opinion of the Court

3

referendum petition with the “local clerk,” the election official of 

the local government whose law is being challenged. UTAH CODE

§ 20A-7-602. The local clerk has twenty days to determine 

“whether the proposed referendum is legally referable to the 

voters.” Id. § 20A-7-602.7(1). If the proposed referendum is 

deemed to be legally referable, the local clerk “furnish[es] to the 

sponsors a copy of the referendum petition and a signature 

sheet,” and the sponsors “prepare the referendum for circulation 

by creating multiple referendum packets.” Id. § 20A-7-604(2),

(4)(a).

¶6 To collect the necessary number of signatures, the 

sponsors are required to “circulate referendum packets that meet 

the form requirements” of the code. Id. § 20A-7-604(1). Sponsors 

“may prepare the referendum for circulation by creating multiple 

referendum packets.” Id. § 20A-7-604(4)(a). But all such packets 

must be made “by binding a copy of the referendum petition, a 

copy of the law that is the subject of the referendum, and no more 

than 50 signature sheets together at the top in such a way that the 

packets may be conveniently opened for signing.” Id. § 20A-7-

604(4)(b). The referendum petition identifies the law being 

challenged, indicates that the signers order an election, and 

affirms that the signers meet several requirements for signing the 

petition. Id. § 20A-7-603(1), (4). The signature sheets include 

columns for voters to print their names, sign their names, and 

write their address and date of birth. Id. § 20A-7-603(2)(g).

¶7 Sponsors are also directed to “include, with each packet, a 

copy of the proposition information pamphlet provided to the 

sponsors.” Id. § 20A-7-604(4)(d). A “proposition information 

pamphlet” includes a “a copy of the application for the proposed 

. . . referendum,” a written “argument prepared by the sponsors” 

in favor of the proposed referendum, a written “argument 

prepared by the county or municipality” in response to the 

sponsors’ argument, and a copy of an “initial fiscal impact 

statement and legal impact statement.” Id. § 20A-7-401.5(3). The 

local election official compiles all these materials to create the 

proposition information pamphlet and then gives a copy of the 

pamphlet to the sponsors. Id. § 20A-7-401.5(4)(b).

¶8 Sponsors must deliver all signed, verified referendum 

packets “to the county clerk of the county in which the packet was 

circulated before 5 p.m. no later than 45 days after the day on 

which the sponsors receive” the referendum petition from the 

local clerk. Id. § 20A-7-606(1)(a). Within thirty days, the county 
SMITH v. RETURN DEVELOPMENT

Opinion of the Court

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clerk must then “determine whether each signer is a registered 

voter,” “certify on the referendum petition whether each name is 

that of a registered voter,” and “deliver all of the verified 

referendum packets to the local clerk.” Id. § 20A-7-606(3). And 

within two days after that, the local clerk is required to determine 

whether “the total number of certified names from each verified 

signature sheet equals or exceeds the number of names required” 

for the referendum to qualify for the ballot—a number 

determined by a formula set forth in Utah Code section 20A-7-601 

(which is based on the percentage of “active voters” in the county 

or city, with the percentage depending on the size of the county or 

city). See id. § 20A-7-607(2)(b) (incorporating the requirements of 

section 20A-7-601); id. § 20A-7-601 (setting forth requirements for 

different classes of counties and cities and “metro township[s]” 

based on population).

¶9 Some of the above requirements have been affected by an 

executive order entered by Governor Gary Herbert on April 3, 

2020. Executive Order 2020-14 was issued pursuant to the 

governor’s authority to “suspend the enforcement” of statutory 

requirements where necessary to address a declared emergency.

See id. § 53-2a-209(4). In light of the declared “state of emergency 

due to novel coronavirus disease 2019 (COVID-19),” and the 

concern that this disease “spreads easily from person to person, 

may result in serious illness or death, and has been characterized 

by the World Health Organization as a worldwide pandemic,” 

this executive order suspends the enforcement of certain elements 

of the above-noted requirements of the statutory referendum 

process. Utah Exec. Order 2020-14 (April 3, 2020) (suspending 

enforcement of parts of thirteen statutory provisions, including 

Utah Code sections 20A-7-606(1)(a), 20A-7-603(1)(b), and 20A-7-

606(3)). 

¶10 For example, the executive order suspends the 

requirements of Utah Code section 20A-7-603 “to the extent it 

requires a referendum sponsor to attach physically a copy of the 

law that is the subject of the referendum to each referendum 

petition” and “to the extent it requires a signature sheet to be 

bound physically.” Id. (emphasis added). It also suspends 

enforcement of Utah Code section 20A-7-604 “to the extent it 

requires a referendum packet to be bound physically” and “to the 

extent it requires a signature sheet to be attached physically to a 

referendum packet.” Id. (emphasis added).
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Opinion of the Court

5

B

¶11 In February 2020, the Nibley City Council adopted an 

ordinance approving a residential planned unit development on 

land owned by Return Development LLC. About a week later, 

Nibley residents Kent Smith, Chandra Smith, Edward Duke, 

Sharon Duke, and Timothy Syndergaard sought to challenge the 

ordinance as sponsors of a referendum petition under the abovedescribed statutory process. The sponsors submitted their 

application to Nibley City Recorder David Zook, the “local clerk” 

under the statutory framework.

¶12 Zook furnished a referendum petition to the sponsors in 

accordance with Utah Code section 20A-7-604(2). And the 

sponsors then prepared “referendum packets” for circulation for 

voter signatures, as called for in Utah Code section 20A-7-

604(1) & (4).

¶13 Initially, the sponsors printed standard, spiral-bound 

paper referendum packets and collected signatures through inperson contact. No one contends that those packets failed to 

satisfy the statutory prerequisites for a referendum packet. So we 

presume that the packets included “a copy of the referendum 

petition, a copy of the law being submitted or referred to the 

voters for their approval or rejection, and the signature sheets, all 

of which [had] been bound together as a unit.” UTAH CODE § 20A7-101(21).

¶14 The COVID-19 pandemic then intervened. And it 

interrupted the sponsors’ efforts—as it did with so many aspects 

of so many people’s lives.

¶15 The sponsors shifted their approach to gathering 

signatures. They prepared a new form of referendum packet and 

sought signatures in a new way: They printed and mailed to all 

Nibley City residents a two-sided document. See Appendix 

(reproducing both sides of the mailer). The front of the document 

had a header stating “Please Sign ASAP – Nibley Referendum for 

Ordinance 20-04; approval for Firefly Estates high density 

development near Firefly Park.” Under that header was a series of 

bullet points summarizing the sponsors’ reasons for opposing the 

ordinance in question—stating that this is a “high density 

development . . . approved for over 120 units where zoning 

should only allow for 40,” noting that “Firefly Nature Park is 

immediately adjacent to the land for this high density 
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development,” and asserting that “[t]his type of development is 

not what Nibley citizens envision for the character of our city.”

¶16 Under those bullet points, the front side of the document 

next provided a means for voters to access the “referendum 

packet” for this referendum—through a web address or Uniform 

Resource Locator (URL),

https://nibleycity.com/images/government/FireflyReferendum

Packet.pdf. The document also stated that “Governor Herbert has 

suspended certain signature gathering requirements due to 

pandemic considerations, until Utah’s emergency declaration is 

withdrawn.” And it noted that the “signature sheet usually used 

for in-person signature gathering is . . . on [the] back” of the 

mailed document, while encouraging voters to “fill out and 

physically sign” the back page of the document, “scan or 

photograph the whole form,” and send it “via email” to a listed 

email address of one of the sponsors.

¶17 The back side of the document included a header stating 

that it is a “REFERRAL TO THE PEOPLE OF AN ADOPTED 

LOCAL LAW,” which was identified as “Ordinance 20-04: 

Residential Planned Unit Development Overlay Zone Application 

and Development Agreement For the Proposed Firefly Estates 

Development, Located at Approximately 2200 South and 1200 

West.” On the signature lines, the document also stated that “[b]y 

signing this petition, you are stating that you have read and 

understand the law this petition seeks to overturn.”

¶18 The sponsors gathered numerous in-person signatures 

using the paper referendum packet. They also gathered a number

of signatures through the document they mailed to voters.

¶19 On March 5, 2020, the sponsors submitted the signed, 

verified referendum packets to the county clerk. The county clerk

then certified that the signatures were from registered voters and 

delivered the verified referendum packets to the local clerk.

¶20 The local clerk, Mr. Zook, confirmed that the total number 

of certified names on the verified signature sheets was sufficient 

to qualify the referendum petition for the ballot. But he 

determined that the signatures gathered in response to the mailed 

document were not “legal signatures” under Utah law. In Zook’s 

view, the mailed document was not a “referendum packet” as 

required by statute because it did not contain a copy of the 

referendum petition, a copy of the law, a signature sheet, and a 

copy of the proposition information pamphlet. And because there 
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Opinion of the Court

7

were not sufficient certified names without those gathered in 

response to the mailed document, Zook concluded that the 

referendum petition could not qualify for the ballot.

¶21 The sponsors filed a petition for extraordinary writ in the 

district court. See id. § 20A-7-607(4) (authorizing sponsors to 

challenge rejection of a referendum petition through an 

extraordinary writ). They asserted that the signatures submitted 

in response to their mailed document were valid and legal in light 

of the terms of Executive Order 2020-14. And they asked the court 

to compel Zook to accept the referendum petition and qualify it 

for the ballot. Return Development intervened as a matter of right 

to defend Zook’s decision.

¶22 The district court resolved the case on summary 

judgment. It noted that it was undisputed that the sponsors had 

failed to procure sufficient signatures through in-person 

circulation of the paper referendum packet but that they had 

exceeded the statutory standard if signatures procured through 

the mailed document were included. And it also indicated that the 

facts of relevance to the mailed document were essentially 

undisputed—the “mailer included voter information and 

provided the requisite signature sheet” and “provided voters” 

with a “referendum packet” by identifying a URL that directed 

voters to a web page containing the components of the packet in a 

PDF file.

¶23 The court found the referendum petition “sufficient as a 

matter of law” under the Election Code as modified by Executive 

Order 2020-14. It held that the sponsors had “made available an 

electronic copy” of the Nibley City ordinance “and the 

proposition information pamphlet.” It concluded that “any 

requirement that” sponsors “provide physical copies of all 

requisite documents in a bound unit is expressly suspended” by 

the executive order. And it granted the sponsors’ motion for 

summary judgment and denied Zook’s cross-motion on this basis, 

holding that the sponsors thus “have a legal right to submit” the 

referendum “to the voters of Nibley” before the ordinance “may 

take effect.”

¶24 Return Development filed this appeal. We review the 

district court’s decision on summary judgment for correctness. 

Heslop v. Bear River Mut. Ins. Co., 2017 UT 5, ¶ 15, 390 P.3d 314.
SMITH v. RETURN DEVELOPMENT

Opinion of the Court

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II

¶25 By statute, the sponsors of a referendum petition are 

required to circulate “referendum packets” that include “a copy of 

the referendum petition, a copy of the law being submitted or 

referred to the voters for their approval or rejection, and . . .

signature sheets” for voter signatures. UTAH CODE § 20A-7-

101(21). Copies of all of these materials must be “bound together 

as a unit.” Id. Sponsors must “create” these packets by “binding” 

a “copy” of their essential components “together . . . in such a 

way” that they “may be conveniently opened for signing” by 

voters.” Id. § 20A-7-604(4)(b). A “copy of the proposition 

information pamphlet” must also be included if it is compiled. Id.

§ 20A-7-604(4)(d).

¶26 The enforcement of the above requirements has been 

suspended by Executive Order 2020-14 to some extent. But 

enforcement is suspended only to the extent provided expressly in 

the executive order. If and where the governor has not specifically 

suspended enforcement, statutory terms and conditions are still 

operative and controlling. See id. § 53-2a-209(4).

¶27 The executive order speaks only to provisions of the code 

“to the extent” they require referendum sponsors “to attach 

physically a copy of the law that is the subject of the referendum” 

and “to the extent” they require signature sheets or referendum 

packets “to be bound physically.” See Utah Exec. Order 2020-14 

(April 3, 2020) (emphasis added). It does not alter the more 

general requirement that sponsors create a referendum packet 

that “bind[s]” together a “copy” of the components of the packet

in a single “unit” to be “conveniently opened for signing” by 

voters. UTAH CODE §§ 20A-7-101(21), 20A-7-604(4)(b).

¶28 These statutory requirements foreclose the central 

premise of the district court’s decision. Under terms of the 

Election Code unaltered by the executive order, it is not enough 

for sponsors merely to make the components of the referendum 

packet “available” to voters. A “copy” of each component must be 

bound together in a single “unit” to be “opened for signing” by 

voters. Id. And the mailer at issue in this case fell short of fulfilling 

those requirements.

¶29 The sponsors characterize the mailer as the referendum 

packet. They note that the mailer included a physical signature 

sheet and provided electronic access to the other components of 

the packet by “direct[ing] voters to a URL link, which took them 
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Opinion of the Court

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to” a web page that included the referendum petition, the city 

ordinance, and the proposition information pamphlet.

¶30 We agree with the sponsors’ characterization of the 

mailer as the referendum packet. And we conclude that the mailer 

fulfilled some of the requirements of the Election Code. As the 

sponsors note, the signature sheets cannot be disqualified on the 

ground that they were signed on paper and submitted 

electronically. See Utah Exec. Order 2020-14 (April 3, 2020)

(suspending enforcement of the requirement that a signature be 

verified by a person “in whose presence the signature sheet [was] 

signed”). Yet that alone is insufficient. The Election Code also 

requires the sponsors to create a packet that provides a “copy” of 

the referendum petition and the ordinance, in a “unit” that is 

bound “together” to be “opened for signing” by voters. See UTAH 

CODE §§ 20A-7-101(21), 20A-7-604(4)(b).

¶31 The mailer did not include a “copy” of the referendum 

petition and the ordinance. A “copy” is “an imitation, transcript, 

or reproduction of an original work.”1 It is an actual token of a 

reproduced original—not a mere means of accessing it. The mailer

provided a means of access but not a copy. As the sponsors 

explain, a voter who received the mailer “needed . . . to type the 

URL into a computer connected to the internet” in order to access 

the referendum petition, city ordinance, and proposition 

information pamphlet.

¶32 The mailer thus did not provide a copy or reproduction 

of the materials on the web page. It gave a mere means of 

accessing them. And that was insufficient.

¶33 The executive order did not suspend the requirement that

sponsors create a packet that provides a “copy” of the 

components of a referendum packet in a “unit” to be “opened for 

signing” by voters. See UTAH CODE §§ 20A-7-101(21), 20A-7-

______________________________________________________________________________

1 Copy, Merriam-Webster Dictionary, https://www.merriamwebster.com/dictionary/copy (last visited Mar. 30, 2021); see also 

id. (defining copy as “one of a series of especially mechanical 

reproductions of an original impression”); Copy, Cambridge 

Dictionary, 

https://dictionary.cambridge.org/us/dictionary/english/copy

(last visited Mar. 30, 2021) (defining copy as “something that has 

been made to be exactly like something else”).
SMITH v. RETURN DEVELOPMENT

Opinion of the Court

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604(4)(b). And this requirement was not fulfilled by the mailer. 

The materials on the listed web page were not provided in a 

“unit” to be “opened for signing” by voters because voters had to 

take an additional, proactive step to access those materials instead 

of simply opening the unit that was provided by the sponsors.

¶34 In a pre-pandemic world, the sponsors of a referendum 

petition would not have been allowed to disseminate paper 

signature sheets and tell voters where they could find a copy of 

the referendum packet materials on a public website. The 

materials on a website would certainly be “made available” to 

voters. But we would not say that a person who provided a mere 

URL or web address to voters has provided a “copy” of those 

materials in the referendum packet “unit” to be “opened” by the 

potential signer. That same conclusion holds here. The mailer in 

question did not provide a reproduction or copy of the 

components of the referendum packet in a single unit to be 

opened by voters. It instead provided information that voters 

could use to access those components through proactive efforts of 

their own. And the mailer thus fell short under our law.2

¶35 The sponsors claim that the mailer “is no different than” 

an email sent to voters with “an attachment” containing all of the 

components of a referendum packet. But such an email arguably 

is different—and conceivably could comply with the statute. An 

email with an attachment containing the full referendum packet 

could be viewed as giving voters a copy or reproduction of all of 

the components of a referendum packet together in a single “unit” 

to be “opened” by voters “for signing.” UTAH CODE §§ 20A-7-

101(21), 20A-7-604(4)(b). But the mailer did not do that. At most it 

______________________________________________________________________________

2 The sponsors cite a memorandum from the Utah Director of 

Elections for their assertion that a referendum sponsor is required 

only to “send or make available an electronic copy of the 

referendum packet to any interested voter, so long as it ‘includes’ 

all of the required documents.” But this memorandum lacks the 

force of law. And we repudiate it to the extent it could be read to 

override provisions of the Election Code that are not altered by 

the executive order.
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Opinion of the Court

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gave voters access to the required components, to be reviewed 

through proactive efforts by voters. That was insufficient.3

¶36 We reverse on this basis. And we accordingly hold that 

the sponsors’ petition for extraordinary writ fails as a matter of 

law.

III

¶37 The sponsors of the referendum petition in question went 

to great lengths to procure voter support for their challenge to the 

Nibley City ordinance. And they did so at a time of great 

challenge—as reflected in the terms of Executive Order 2020-14. 

The petition for extraordinary writ, moreover, raised some

important legal questions at the intersection of the Election Code 

and Executive Order 2020-14.

¶38 We thus commend the sponsors for their diligent efforts. 

But we reverse the decision granting the sponsors’ motion for 

summary judgment because we conclude that the sponsors’ 

referendum packet fell short of fulfilling the requirements of the 

Election Code—even as altered by the executive order. 

______________________________________________________________________________

3 Because we reverse on this ground we stop short of resolving 

an alternative argument for reversal—the assertion that the mailer 

presented bullet-points of advocacy in favor of the referendum 

that are not in line with the terms of and conditions for a 

“proposition information pamphlet.” 
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Opinion of the Court

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APPENDIX I

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