Downs v. Thompson

STEVEN DOWNS, Assistant to the Orem City Manager, Plaintiff, v. BRYAN THOMPSON, Utah County Clerk/Auditor;the BOARD OF COUNTY COMMISSIONERS OF UTAH COUNTY; andUTAH COUNTY, a political subdivision of the State of Utah, Defendants.

Case No. 2:17-cv-00330-DAK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

August 24, 2020

MEMORANDUM DECISION AND ORDER

Judge Dale A. Kimball

This matter is before the court on Plaintiff's Revised Motion for Partial Summary Judgment [ECF No. 79] and Defendants' Motion for Summary Judgment [ECF No. 78]. On August 11, 2020, the court held oral argument on the motions via Zoom. Plaintiff was represented by Brady J. Brammer and Steven C. Earl, and Defendants were represented by Benson L. Hathaway and Ryan R. Beckstrom. The court took the matters under advisement. The court considered carefully the memoranda and other materials submitted by the parties, as well as the law and facts relating to the motions. Now being fully advised, the court issues the following Memorandum Decision and Order.

FACTUAL BACKGROUND

Plaintiff Steven 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, including the lease agreement, 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. Later that month, Defendant Utah County Clerk/Auditor Bryan E. Thompson ("Thompson") notified Downs that residents filed a complaint with the Utah Lieutenant Governor's Office alleging that Orem City personnel used a city email to influence the outcome of the BRT Referendum. The complaint cited the Political Activities of Public Entities Act ("PAPEA"), Utah Code Ann. § 20A-11-1205(1)(b) (2016), which provided that "a person may not send an email using the email of a public entity for a political purpose or 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. § 20A-11-1205(3). The letter from Thompson further informed Downs that his email violated 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 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. At the hearing, Deputy Attorney Earl made arguments against the fine. Additionally, prior to the 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 anyinformation summarizing arguments in favor of the BRT Referendum, and did not grant equal access to proponents of the BRT Referendum. Several months after the Board's decision, Utah County received an anonymous payment of $250 with a note indicating that the payment was meant to be applied to the fee assessed against Downs.

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, Defendants 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 hisFirst, 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 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-11-1205(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-11-1205(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?

In the fall of 2019, the Utah Supreme Court 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, 452 P.3d 1101, 1106. 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. Following the supplemental briefing, the court granted summary judgment in favor of Defendants on Downs' First, Second, Third, and Fourth Causes of Action. In addition, the court directed the parties to file new motions for summary judgment focused solely on the two remaining claims.

DISCUSSION

The...