20 2 1 UT 10

IN THE 

## S UPREME 

## C OURT OF THE 

## S TATE OF 

## U TAH

K ENT S MITH , C HANDRA S MITH , E DWARD M. D UKE , S HARON P. D UKE , and T IMOTHY S YNDERGAARD ,

Appellee s ,

v.

D AVID Z OOK , in his capacity as the City Ma nager/Recorder/Local Clerk of Nibley City,

Appellee
,

and

R ETURN D EVELOPMENT LLC, Appellant/Interv enor

.

No. 20200674 Heard February 17, 2020 Filed Ap ril 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

A SSOCIATE C HIEF J USTICE L EE authored the opinion of the Court, in which C HIEF J USTICE D URRANT , J USTICE H IMONAS , J USTICE P EARCE ,

and J USTICE P ETERSEN joined.S MITH v. R ETURN D EVELOPMENT Opinion of the Court

2 A SSOCIATE C HIEF J USTICE L EE , opinion of the Court: ¶1 Nibley City enact ed 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 co llected through paper “referendum packets” presented to voters in person . Others were collected through a process initiated by a document se n t to voters by mail, which directed them to an online version of the referendum packet. ¶2 The Nibley City Recorder re jected 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 maile d 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

. . . i n such a way that the packets may be conveniently opened for signing.” See U TAH C ODE § 20A

- 7

- 60 4 ( 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 C OVID

- 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

. . . provi ded by statute.” U TAH C ONST . art. VI, § 1(2)(b). Our Election Code, in turn, sets forth the conditions and manner by which voters may in itiate and pursue the process for getting a referendum on the ballot

. See U TAH C ODE § 20A

- 7

- 101 et seq

. ¶4 In the paragraph s 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
, ” file s an application for aCite as: 2021 UT 10 Opinion of the C ourt

3 referendum petition with the “local clerk
, ” the election official of the local government whose law is being challenged. U TAH C ODE § 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, t he 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 circu lation 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 r equirements 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 cler k. Id

. § 20A

- 7

- 606(1)(a). Within thirty days, the countyS MITH v. R ETURN D EVELOPMENT Opinion of the Court

4 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 referendu m packets to the local clerk.” Id

. § 20A

- 7

- 606(3). And within two days after that, t he 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 requirement s have been a ffected 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 emer gency

. S ee 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 cha racterized by the World Health Organization as a worldwide pandemic,” this executive order suspends the enforcement of certain ele ments of the above

- noted requirements of the statutory referendum
process. Utah Exec. Order 2020

- 14 (April 3, 2020) (suspendin g 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

. (emphas i s 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

. (emphas i s added).Cite as: 2021 UT 10 Opinion of the C ourt

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 Sy n dergaard sought to challenge th e ordinance as sponsors of a referendum petition under the above

described 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 pr inted standard, s piral

- bound paper referendum packets and collected signatures through in

person contact. No one contends that t hose packets failed to satisfy the statutory prerequisites for a referendum packet. So we presume that the packets included “a copy of the refere ndum 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.” U TAH C ODE § 20A

7

- 101(21). ¶14 The COVID

- 19 pandemic then intervened. And i t 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 ma iled to all Nibley City residents a two

- sided document. See Appendix ( reproducing both sides of the mailer)

. The front of the document ha d 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 wa s a series of bullet points summarizing the sponsors’ reasons for opposing the ordina nce 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 densityS MITH v. R ETURN D EVELOPMENT Opinion of the Court

6 development,” and assertin g 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 provide d a means for voters to access the “referendum packet” for this referendum

— throug h a web address or Uniform Resource Locator (URL), https://nibleycity.com/images/government/ FireflyReferendum Packet.pdf. The document also state d that “Governor Herbert has suspended certain signature gathering requirements due to pandemic consideration s, until Utah’s emergency declaration is withdrawn.” And it note d 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 p age 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 include d a header stating that it is a “ REFERRAL TO THE PEOPLE OF AN ADOPTED LOCAL LAW,” which wa s 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 docum ent also state d 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 t he 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 sheet s was sufficient to qualify the referendum petition for the ballot. But he determined that the s ignatures 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 thereCite as: 2021 UT 10 Opinion of the C ourt

7 were not sufficient certified names without those gathered in response to the mailed document, Zook concluded that the referendum petition could not qualif y 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 packe t 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 informatio n and provide d 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 “sufficien t 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.” I t concluded that “any requirem ent 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 s ponsors 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 R iver Mut. Ins. Co. , 2017 UT 5, ¶ 15, 390 P.3d 314

.S MITH v. R ETURN D EVELOPMENT Opinion of the Court

8 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. U TAH C ODE § 20A

- 7

- 101(21). Copies of all of these materials must be “bound together as a unit

. ” I d

. 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 i ncluded 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 p rovided 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 i d

. § 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 packet s “to be bound physically .” See Utah Exec. Order 2020

- 14 (April 3, 2020) (emphas i s added). It does not a lter 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. U TAH C ODE § § 20A

- 7

- 1 01(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, i t 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 thi s case fell short of fulfilling those requirements. ¶29 The sponsors characterize the mailer as the referendum packet . They not e 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 themCite as: 2021 UT 10 Opinion of the C ourt

9 to” a web page that included the referendum petition, the city ordinance, and the proposition information pamphlet

. ¶30 We agree with th e sponsors’ characterization of the mailer as the referendum packet

. And we con clude that t he 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”). Ye t that alone is insufficient. T he Election Code also require s the sponsors to create a packet that provide s a “ copy” of the referendum petition and the ordinance, in a “ unit ” that i s bound “together” to be “opened for signing” by voters. See U TAH C ODE §§ 20A

- 7

- 101 (21)
, 20A

- 7

- 604(4)(b). ¶31 The mailer did not include a “copy” of the referendum petition and the ord inance. 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 U TAH C ODE §§ 20A

- 7

- 1 01(21)
, 20A

- 7

-

______________________________________________________________________________ 1 Copy, Me r riam

- Webster Dictionary
, https://www.merriam

webster.com/dictionary/copy (last visited Mar. 30 , 2021); see also id. (defining copy as “o ne of a series of especially mechanical reproductions of an original impression ”); Copy, Cambridge Diction ary , 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” ).S MITH v. R ETURN D EVELOPMENT Opinion of the Court

10 604(4)(b). And t his requirement was not fulfilled by the mailer. T he 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 th ose 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 we b 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 pro vide a reproduction or copy of the components of the ref erendum 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 th e mailer thus fell short under our law. 2 ¶35 The sponsors claim that the mail er “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 c omply with the statute. An email with an attachment containing th e 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.” U TAH C ODE § § 20A

- 7

- 101(21)
, 20A

- 7

- 604(4)(b). But t he 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.Cite as: 2021 UT 10 Opinion of the C ourt

11 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 Exe cutive Order 2020

- 14. The petition for extraordinary writ, moreover, raise d some important l egal 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 dec ision 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.”S MITH v. R ETURN D EVELOPMENT Opinion of the Court

12 A PPENDIX I