August 30, 2013 Utah Supreme Court Case Summaries

Burr v. Orem City, 2013 UT 57, No. 20120982 (August 30, 2013)

ISSUES: Referendum Petitions; Ballot Titles

Justice Nehring,

Via a referendum petition, Petitioners obtained sufficient signatures to challenge a proposed tax increase approved by the Orem City Council in Resolution 2012-0014. The measure will now go before the voters of Orem City in the November 2013 election. Petitioners challenge the Orem City Attorney’s proposed language that will appear as the referendum ballot title. We disagree with Petitioners’ objections to the wording of the ballot title, having found that the drafter did not abuse his discretion.

At ¶ 1.

The Court outlines the background of this case.  Specifically, Orem’s debt obligation to UTOPIA, the city counsel’s approval of a tax increase to help satisfy the debt, the Petitioner’s referendum petition, the City Attorney’s proposed ballot title and the Petitioner’s Petition for Extraordinary relief because they oppose the language in the ballot title.

At ¶ 6.

Utah Code section 20A-7-608(6) sets forth the scope of our review of referendum ballot titles in the face of a challenge. It reads:

(a) If the ballot title furnished by the local attorney is unsatisfactory or does not comply with the requirements of this section, the decision of the local attorney may be appealed by a petition to the Supreme Court that is brought by:

(i) at least three sponsors of the referendum petition; or

(ii) a majority of the local legislative body for the jurisdiction where the referendum petition was circulated.

(b) The Supreme Court shall examine the measures and consider arguments, and, in its decision, may certify to the local clerk a ballot title for the measure that fulfills the intent of this section.

The operative question posed by the language of the statute is whether the ballot title “is unsatisfactory or does not comply with the requirements of this section.” In order to give meaning to this standard, we look to the requirements of the section in drafting the ballot title. Section 608(3) reads:

(a) The ballot title may be distinct from the title of the law that is the subject of the petition, and shall express, in not exceeding 100 words, the purpose of the measure.

(b) In preparing a ballot title, the local attorney shall, to the best of his ability, give a true and impartial statement of the purpose of the measure.

(c) The ballot title may not intentionally be an argument, or likely to create prejudice, for or against the measure.

. . . [A] ballot title challenge encompasses three requirements: “1. that the ballot title give a true and impartial statement of the purpose of the measure; 2. that the ballot title not exceed 100 words in length; and 3. that the ballot title be submitted by [the stated deadline].”

At ¶ 7.

. . . In creating the ballot title, the statute gives broad instructions as to content, requiring only that the product be “a true and impartial statement of the purpose of the measure” and not be an argument for or against the measure.8 As a result, the City Attorney is allotted a wide range of permissible terminology and has broad discretion in his choice of wording. Indeed, there are numerous satisfactory alternatives from which the City Attorney must have chosen in arriving at the final product in this case. In deciding among the various alternatives, the City Attorney must draw on his experience, expertise, and familiarity with the measure. In reviewing the City Attorney’s final product, it is not our task to determine whether he has chosen the best possible wording, but only whether the chosen wording meets the requirements of the statute. In other words, we may not substitute our “editorial judgment” for that of the drafter.9 Therefore, we hold that in the creation of ballot titles, the drafter is entitled to considerable deference, and we will apply an abuse of discretion standard in conducting our review.

At ¶ 9.

The parties agree that the timing and word limit requirements were both met in this case. It is solely the content of the proposed title that is the subject of our review.

At ¶ 11.

The Court quotes the language of the Ballot measure

At ¶ 12.

Petitioners assert three challenges to use of this language: (1) the language fails to give a true and impartial statement of the purpose of the measure by failing to mention UTOPIA, (2) the title creates an argument for the measure by minimizing the perceived burden on businesses, and (3) the wording is otherwise “unsatisfactory” in that it seeks to hide from the voters the causal connection between the UTOPIA bond obligation and the requested tax rate increase. We address each challenge in turn.

At ¶ 13.

Petitioners take issue with the “for municipal operations” language. They allege that the real purpose of the tax increase is to pay the obligation on the UTOPIA debt guarantee. Indeed, based on the minutes of the various public hearings held on the matter, the City Council stated that the need for the tax increase was a result of the UTOPIA bond obligation. Respondents do not dispute that approximately $2.8 million of the City of Orem’s $88 million budget will be paid toward the UTOPIA bond obligation. But where Petitioners’ argument fails is that they have not shown that the language “for municipal operations” is either untrue or partial in some way. Even the language proposed by Petitioners does not eliminate the “for municipal operations” wording. Instead, it adds additional language, proposing “for municipal operations and for payment on the UTOPIA bond obligation.”

At ¶ 16.

In short, Petitioners argue that their proposed language would make the ballot title more true or more impartial. This is precisely the kind of substitution of judgment that our deferential standard of review does not permit. . . . Given our deferential standard of review, we see nothing untrue or partial about the City Attorney’s summarizing the proposed tax increase’s purpose as “for municipal operations.” Therefore, we hold that the language “for municipal operations” satisfies the requirements of truth and impartiality absent mention of UTOPIA.

At ¶ 17. 

Petitioners next argue that the City Attorney’s use of the language mandated by the truth-in-taxation hearing creates an argument in favor of the measure by minimizing the impact of the proposed tax on businesses. For the purpose of our review, Petitioners argue, in essence, that the proposed language, while true, is not impartial. The proposed ballot language reads as follows:

The Orem property tax on a $187,000 residence would change from $192 to $242, which is $50 per year. The Orem property tax on a $187,000 business would change from $350 to $440, which is $90 per year.

Again, we find nothing untrue or partial about the proposed wording. While the ballot title does not say from where these figures originate (likely due to the word limit), $187,000 is the average value of a residential home in Orem City in 2013. For purposes of the truth-in-taxation hearing, the City Council was required to use this figure as an example of the impact of the proposed tax increase on both residences and businesses. Nowhere does it purport to represent the average value of a business, nor do Petitioners provide us with the data of what the average value of a business in the City of Orem was in 2013. What the language does is provide an “apples to apples” comparison of the proposed increase on residences compared to businesses, which accounts for the 45 percent exemption on the taxation of primary residences in the state of Utah. Again, while there are certainly multiple ways to depict the impact of the proposed increase, our job is not to determine whether the City Attorney utilized the best possible method of communicating the impact and we will not substitute our editorial judgment for that of the drafter. In sum, we conclude that the City Attorney did not abuse his discretion by including the truth-in-taxation language in the ballot title.

At ¶ 18.

Utah Code section 20A-7-608(6)(a), which defines our review as whether the proposed language is “unsatisfactory or does not comply with the requirements of this section.” Petitioners argue that inclusion of the word “unsatisfactory” dictates a separate standard of review, one distinct from strict compliance with the terms of the statute. We disagree.

At ¶ 19.