Sevier Power v. Hansen

2008 UT 72
196 P.3d 583
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Sevier Power Company, LLC, 	No. 20080780
Plaintiff and Appellee,
v.
The Board of Sevier County
Commissioners and Steven C. Wall,
Sevier County Clerk,
Defendants.
Sharlene Hansen, Alma Bastian,
Grant N. Stubbs, Keith Dean
McConnell, Ronald L. Bosshardt,
and Burke V. Bastian, 	F I L E D
Intervening Defendants
and Appellants. 	October 17, 2008
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Sixth District, Richfield
The Honorable Wallace A. Lee
No. 080600308
Attorneys: 	Fred W. Finlinson, Saratoga Springs, Brian W.
Burnett, Cass C. Butler, Michael D. Stanger,
Salt Lake City, for plaintiff
Jared T. Hales, Jeffery J. Owens, Salt Lake City,
for defendants
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WILKINS, Justice:
¶1 	Sevier Power Company, LLC, wishes to build a coal-fired
power generation facility in Sevier County. 	Sharlene Hansen and
others sought the opportunity to modify the county zoning
ordinance applicable to approval of coal-fired power generation
facilities so that the approval of such facilities required voter
approval. 	Hansen and her associates presented an initiative
petition on the subject to the Sevier County Clerk/Auditor, who
verified that the initiative petition met the legal requirements
set forth by state statute. 	The initiative was approved by the

1 See Utah Code Ann. § 20A-7-401(1)(b) (Supp. 2008).
2 Id.
No. 20080780 	2
Board of County Commissioners to be placed on the general
election ballot for this November’s general election.
¶2 	Sevier Power brought an action in the district court
against the Clerk/Auditor and the County Commission, asking that
the district court prohibit the inclusion of the initiative on
the ballot, relying on provisions of Utah Code section 20A-7-
401. 1 	The district court, after due reflection on the apparent
conflict between the right of the people to use the initiative
process and the obligation of the legislature to set terms for
use of that power, concluded that the statutory ban contained in
section 20A-7-401 on initiating “a land use ordinance or a change
in a land use ordinance” was not in direct conflict with the
constitutional reservation of initiative rights to the people. 2
The district court then granted Sevier Power the extraordinary
relief it sought, and ordered that the initiative be removed from
the ballot.
¶3 	In conjunction with an appeal of the district court’s
order, Hansen and others petitioned us for countervailing
extraordinary relief, asking that we vacate the order of the
district court and direct that the matter be reinstated on the
ballot. 	The matter was filed with us on September 19, 2008.
Sevier Power filed its responsive pleadings on September 24.
Despite the challenge to the constitutionality of the statute,
the Attorney General elected to not participate and notified us
in writing of his decision on October 2. 	We scheduled the matter
for hearing on October 8 and issued our order later that day. 	We
granted the relief sought by Hansen and the other Petitioners by
vacating the order of the district court and reinstating the
initiative to its prior status. 	This opinion follows, as
indicated in our order, for purposes of explaining our action,
and for possible guidance to the legislature, should it choose to
pursue the policy behind section 20A-7-401.
¶4 	Our constitution begins with the proposition that all
governmental power is conferred on the officers and institutions
of government by the people, who hold that power. 	As the
preamble states:
Grateful to Almighty God for life and
liberty, we, the people of Utah, in order to
secure and perpetuate the principles of free

3 Utah Const. pmbl.
4 Id. art. I, §§ 1-29 (amended 1995 and 2005).
5 Id. art. I, § 2.
3 	No. 20080780
government, do ordain and establish this
CONSTITUTION. 3
¶5 	Article I of our constitution is a declaration of those
rights felt by the drafters of the document to be of such
importance that they be separately described. 4 	Arguably, any
rights not specifically granted to state government are already
retained by the people. 	However, to prevent any misunderstanding
about the scope of that delegation, the people specifically
identified and described certain of those rights in article I.
¶6 	Of significance to our decision here is the second of
those specifically reserved rights. 	Article I, section 2
provides the following:
All political power is inherent in the
people; and all free governments are founded
on their authority for their equal protection
and benefit, and they have the right to alter
or reform their government as the public
welfare may require. 5
¶7 	In article VI, the people expressed their will as to
the distribution and use of legislative power. 	Unlike the
executive or judicial authority described in our constitution,
the legislative power--the power to set public policy by law--is
not vested solely in the designated department of state
government. 	Section 1 provides for two different methods of
legislative action:
(1) 	The Legislative power of the State shall
be vested in:
(a) 	a Senate and House of
Representatives which shall be designated the
Legislature of the State of Utah; and
(b) 	the people of the State of Utah as
provided in Subsection (2).
. . .
(2)(b) The legal voters of any county, city,
or town, in the numbers, under the

6 Id. art. VI, § 1 (amended 2001). 	It is subsection 2(b) of
article VI that specifically provides for initiative legislation
at the county level, as sought by the petitioners here.
7 Id.
No. 20080780 	4
conditions, in the manner, and within the
time provided by statute, may:
(i) initiate any desired legislation and
cause it to be submitted to the people of the
county, city, or town for adoption upon a
majority vote of those voting on the
legislation, as provided by statute[.] 6
It becomes clear, upon review of the constitutional provisions
relating to the legislative power retained by the people, that
the right to enact laws or modify them by initiative, or to
reject them by referendum, is an important one. 	Although the
legislature is the usual instrument by which the people express
their collective will on matters of public policy, article VI,
section 1 plainly contemplates an equivalent retention of power
for direct action by citizens.
¶8 	In the instance of section 20A-7-401, a question arises
regarding the meaning of the conditions imposed by the
constitution on exercise of the initiative power. 	The
constitution gives to the legislature the obligation to establish
the process by which an initiative is to be presented to voters.
In the language of the constitution, the legislature is to
establish by law the process to be followed, and provide the
conditions, the manner, and the time within which the initiative
power is to be exercised. 7 	With one exception, title 20A,
chapter 7 does just that.
¶9 	Title 20A is the Election Code, the compilation of laws
made by the legislature to assure the fair and efficient process
of conducting elections of various types within the state. 	The
bulk of the provisions deal with procedures, process,
verification, and methods. 	Only section 20A-7-401 purports to
limit the substantive scope of citizen initiatives. 	It provides
as follows:
(1) The legal voters of any county,
city, or town may not initiate:
(a) a budget or a change in a
budget; or
(b) a land use ordinance or a change
in a land use ordinance.

8 Utah Code Ann. § 20A-7-401(1)-(2).
9 Utah Const. art. VI, § 1.
5 	No. 20080780
(2) The legal voters of any county,
city, or town may not require any budget
adopted by the local legislative body or the
implementation of a land use ordinance
adopted by the local legislative body to be
submitted to the voters. 8
¶10 	This direct prohibition of the subject of an initiative
brought otherwise within the conditions, manner, and time
restrictions imposed by law is beyond the power of the
legislature to enact. 	As set forth in article VI, section 1, the
people have reserved the right to initiate “any desired
legislation” and submit it to the voters for approval or
rejection. 9 	This reservation must be read to mean any
substantive topic and any legislative act, unless otherwise
forbidden by the constitution. 	The authority of the legislature
to set conditions on the exercise of the initiative power by the
people must be read in coordination with the other rights of the
people expressed and reserved in the constitution. 	It is
limited, as a consequence, to the role of providing for the
orderly and reasonable use of the initiative power. 	It does not
follow, logically or constitutionally, that the authority to set
limits on conditions, manner, or time gives the legislature the
broader authority to deny the initiative right to the people.
Were we to accept the position advanced by Sevier Power that the
word “conditions,” as used in article VI, section 1 embraces the
power to foreclose any subject from initiative action, we would
be forced to conclude that the legislature could foreclose all
subjects just as easily from initiative action. 	To do so would
require us to conclude that the constitutional reservation of the
initiative power by the people was intended to be, and in fact
is, illusory. 	To the contrary, we are obligated to conclude the
opposite: that the reservation of the right to initiate
legislation directly was intended to be effective.
¶11 	Consequently, we are compelled to deem section 20A-7-
401 unconstitutional. 	Unless and until the people give the
legislature the constitutional authority to suspend or forbid the
use of the initiative power, it cannot be done by statute.
¶12 	With the possible application of section 20A-7-401
removed from consideration, the decision of the district court to
order removal of the initiative from the ballot on that basis
also fails. 	However, the parties have also raised questions as

10 See Bird v. Sorenson, 394 P.2d 808, 808 (Utah 1964) (“The
determinative question is whether or not the action of the City
Council was administrative or legislative. 	If the former, it is
not subject to referendum.”); see also Wilson v. Manning, 657
P.2d 251, 253-54 (Utah 1982) (holding that administrative actions
were not subject to referendum); Shriver v. Bench, 313 P.2d 475,
477-78 (Utah 1975) (holding that administrative actions could not
be undertaken by initiative).
11 See Keigley v. Bench, 89 P.2d 480, 484 (Utah 1939) (“The
crucial test for determining what is legislative and what is
administrative is whether the ordinance is one making a new law,
or one executing a law already in existence.” (internal quotation
marks omitted)).
12 See id.
No. 20080780 	6
to the nature of the initiative measure, and whether or not it
falls into a category distinct from the legislative power
reserved to the people.
¶13 	We have previously observed that matters presented as
initiative measures which address administrative actions are not
suitable for legislative action by the people through initiative,
but are more properly left to officers of government. 10 	Only
matters of a legislative nature are contemplated by the
constitutional language we have reviewed. 	The operative nature
of an individual initiative petition, whether legislative or
administrative in substance, depends upon the precise language of
the initiative proposed and on the action of government it
intends to modify or require. 	When an initiative seeks to undo
an accomplished action taken pursuant to existing law, it most
likely falls within the administrative action category. 11
Adoption of budgets are within this category. 	When, on the other
hand, an initiative seeks to enact or modify a statute or
ordinance of broad application, it most likely falls within the
legislative sphere. 12
¶14 	The initiative advanced by the petitioners in this
instance seeks to amend the Sevier County zoning ordinance in two
specific ways. 	First, it proposes to add an additional element
to the criteria specified for approval of all conditional use
permits, although admittedly only to those requested for an
electricity generating plant whose primary fuel source is coal.
The criterion proposed would impose voter approval on any such
conditional use permit. 	The second change included in the
initiative is to the section relating to the modification or
revocation of conditional use permits, and requires revocation of

7 	No. 20080780
an already issued conditional use permit for a coal-fired
electricity generating facility if issued after “application for
an initiative petition had been filed with the county clerk and
before the vote required by [the section modified by the first
change proposed].”
¶15 	Although the underlying motive of the initiative
supporters seems clearly that of putting the Sevier Power
conditional use permit to a vote of the people of Sevier County,
the initiative itself addresses the overall conditional use
permit issuance and revocation ordinance, modifying the framework
to be applied to any and all coal-fired electricity generation
power facilities seeking a conditional use permit in Sevier
County. 	As such, it is clearly legislative in nature and
susceptible to the initiative process.
¶16 	We express no opinion on the wisdom, worthiness, or
wording of the initiative at issue. 	It is for the voters of
Sevier County to determine if and how the measure is to be
regarded. 	Imposing additional steps in issuing conditional use
permits has both costs and benefits, the value of which, and
nature of which, are left to the consideration of the voters, as
with all initiatives proposed as direct legislation by the
people. 	Highly participatory democracy is at times inefficient,
expensive, and time consuming. 	However, the initiative power, as
with all other powers identified in our constitution, is a
creature of the people. 	It is for the people to determine when,
if, and how it is to be modified. 	That much is clear.
¶17 	Reversed.
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¶18 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Parrish, and Justice Nehring concur in Justice Wilkins’
opinion.