Bissland v. Bankhead

2007 UT 86
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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Bob Bissland, Laura Fisher, Nos. 20070780
Sharell Eames, Margaret Recker, 20070805
Neil Larsen, Roger Dahle, Mary Ellen
Klomps, Linda Goetse and Ralph Call,
Petitioners and Appellants,
v.
Skarlet Bankhead, Providence City F I L E D
Recorder; Providence City,
Respondents and Appellees. October 26, 2007
Redstone Development, LLC, and
Checketts Farm, LLC,
Intervenors and Appellees.
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First District, Logan Dep’t
The Honorable Thomas Willmore
No. 070100285
Attorneys: D. Rand Henderson, Kenneth C. Allsop, Logan, for
petitioners Bissland, Fisher, and Call
Gary N. Anderson, Brian G. Cannell, Logan, for
petitioners Eames, Recker, Larsen, Dahle, Goetse, and
Klomps
N. George Daines, Craig J. Carlston, Scott L. Wyatt,
Logan, for respondents
Kenneth D. Bradshaw, Ogden, Amy Hugie, Brigham City,
for intervenors
Brent M. Johnson, Salt Lake City, for Judge Willmore
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NEHRING, Justice:
¶1 Petitioners are residents of Providence City, Utah, who
seek to overturn by referendum an annexation ordinance. The
Providence City recorder refused to approve the proposed
referendum for placement on the ballot for the November 2007
vote. The recorder determined that Petitioners failed to submit
their petition within forty-five days of the ordinance’s passage,

Nos. 20070780, 20070805 2
as required by law. The district court agreed and granted
summary judgment for Providence City. We affirm.
BACKGROUND
¶2 Members of the Providence City Council gathered on
October 24, 2006, to consider an ordinance that would annex
property into the municipal boundaries of Providence City. The
ordinance included an annexation agreement that outlined the
conditions of the property’s development after annexation. The
city council recognized, however, that the language describing
these conditions was flawed. Although the agreement
unequivocally provided that “[n]o development will occur . . .
until after the following three conditions have been fully
satisfied,” one of the conditions seemingly contradicted this
mandate. At the meeting, the city attorney proposed the change
in language necessary to cure the contradiction. The city
council passed the ordinance despite the flaw, with the
understanding that the city attorney would remedy the defect in
the agreement. Several Petitioners attended the meeting where
the ordinance was passed.
¶3 The ordinance appears to have taken no one by surprise.
Not only did several Petitioners attend the critical meeting, but
the evidence suggests that they planned to organize a referendum
petition to submit the ordinance’s fate to the Providence City
voters even before the October 24 city council vote. Despite
their efforts to plan ahead, Petitioners found themselves working
against a tight deadline. The Utah Code mandates that
“[s]ponsors of any referendum petition challenging . . . any
local law passed by a local legislative body shall file the
petition within 45 days after the passage of the local law.”
Utah Code Ann. § 20A-7-601(3)(a) (Supp. 2006). In this case, the
statutory deadline was December 8, 2006.
¶4 Petitioners contend that they were unsure about how the
need to modify the annexation agreement’s language after the city
council passed the ordinance affected their referendum plans and
the December 8 deadline. They cite Utah law as the source of
their uncertainty. By law, a referendum petition must include
“one copy of the law” to be challenged. Id. § 20A-7-602(2)(d).
Petitioners assert that they were unsure which copy of the
ordinance to attach. Ultimately, Petitioners decided that their
referendum petition would be best immunized from legal challenges
if it were accompanied by a copy of the signed, executed
ordinance in its final form, rather than a copy of the version
passed. Consistent with this belief, Petitioners filed a request
on October 27 under Utah’s Government Records and Management
Access Act (GRAMA) seeking a copy of “the executed annexation

3 Nos. 20070780, 20070805
ordinance” and “the executed annexation agreement.” Providence
City responded to Petitioners’ GRAMA request and posted a copy of
the ordinance on November 16, one day after the ordinance and
annexation agreement were signed and twenty-one days before the
December 8 referendum petition filing deadline.
¶5 Even with a copy of the executed ordinance in hand,
Petitioners’ referendum efforts continued to experience delays.
As a result, Petitioners did not submit the last packet of
referendum petitions until January 2, 2007, nearly one month
after the December 8 deadline and forty-seven days after receipt
of the executed ordinance. In light of Petitioners’ tardiness,
the Providence City recorder, Skarlet Bankhead, refused to place
the proposed referendum on the ballot.
¶6 Petitioners filed suit in Utah’s First District Court
against Ms. Bankhead and Providence City, the respondents in this
case. Petitioners based their suit on the claim that Ms.
Bankhead erred in concluding that their petition was untimely.
In Petitioners’ view, the forty-five-day clock did not begin to
tick until the ordinance was posted in its final form on November
16. The forty-five-day filing period, therefore, did not expire
until January 2, the day on which they submitted the last of the
petitions. To hold otherwise, Petitioners contended, would
deprive them of due process of law. The district court disagreed
with Petitioners, held their referendum petition to be untimely,
and granted summary judgment in favor of Respondents. Mindful of
the few remaining days before the November election, Petitioners
filed a petition for extraordinary relief with this court. They
accompanied that application with a notice of direct appeal from
the district court’s order and requested expedited disposition.
STANDARD OF REVIEW
¶7 We elect to consider this matter as an expedited appeal
from the district court’s grant of summary judgment. See Utah R.
App. P. 31. When reviewing a district court’s grant of summary
judgment, this court affords no deference to the lower court’s
legal conclusions and reviews them for correctness. E.g.,
Schaerrer v. Stewart’s Plaza Pharm., Inc., 2003 UT 43, ¶ 14, 79
P.3d 922.
ANALYSIS
¶8 Individuals seeking to challenge a law through the
referendum process must negotiate a thicket of statutory
requirements, among them the mandate contained in Utah Code
section 20A-7-601(3)(a) (Supp. 2006). That statute provides,
“Sponsors of any referendum petition . . . [have] 45 days after

Nos. 20070780, 20070805 4
the passage of the local law” in which to file their referendum
petition. Id.
¶9 Petitioners contend that the first of these forty-five
days commenced after the city posted the ordinance. Petitioners
thus essentially ask us to construe the statutory term “passage”
as an event marked by the last ministerial formality that must be
bestowed on a legislative act. This interpretation is contrary
to the commonly understood meaning of passage as the event at
which a legislative body conducts a vote favorable to a piece of
proposed legislation. Even if we were to include within our
definition of passage action by the executive branch of
government, not relevant here, that might be necessary before
legislation can take effect, we conclude that the plain meaning
of passage contemplates events that do not include ministerial
matters. Passage connotes an act of collective assent and
excludes the acts of those whose assent is not required. Because
we find the language of section 20A-7-601(3)(a) to be clear and
unambiguous, “our duty is to give effect to that plain meaning.”
State ex rel. Z.C., 2007 UT 54, ¶ 11, 165 P.3d 1206.
¶10 Although we have never explicitly defined the word
“passage,” our case law impliedly supports this interpretation.
See, e.g., Tobias v. S. Jordan City Recorder, 972 P.2d 373, 375
(Utah 1998) (“[P]etitioners did file . . . within thirty-five
days after the passage of ordinance 97-20,” as required under an
older, similar version of the statute.); Bigler v. Vernon, 858
P.2d 1390, 1391 (Utah 1993) (“[T]he Payson City Council passed
city ordinance 02-21-90A. . . . [P]laintiffs and others filed an
application for copies of a referendum petition form as the first
step in the process of requesting that the ordinance be referred
to the Payson City voters for their approval or rejection.”);
Riverton Citizens for Constitutional Gov’t v. Beckstead, 631 P.2d
885, 886 (Utah 1981) (“[T]he Riverton City Council . . . passed
an ordinance establishing the city manager form of government,”
and “opponents of that measure . . . submitted referendum
petitions to the office of the Riverton City Recorder, seeking to
refer that ordinance to the voters.”). Petitioners’ preferred
definition of passage unacceptably distorts the common and clear
understanding of the term, and we decline to adopt it.
¶11 Because the annexation ordinance completed the
deliberative process required of the Providence City Council on
October 24, this was the date of the ordinance’s passage.
Petitioners have not indicated nor have we discovered any
evidence that the city council somehow failed to comply with or
circumvented any of these requirements. Thus, we hold that
passage occurred when three of the five members of the city
council voted for the annexation ordinance and not when the law

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was posted or signed on November 15. Accordingly, we conclude
that the events of the October 24 meeting triggered the forty-
five-day timeline contained in section 20A-7-601(3)(a).
¶12 The force of sound public policy buttresses our
interpretation and application of passage. The referendum
process permits the people to exercise the power of direct
democracy to overturn the actions of their elected
representatives. Although this conflict is not necessarily
undesirable--indeed, the referendum process enjoys constitutional
protection under article VI, section 1 of the Utah
Constitution--the imposition of statutory controls is necessary
to insulate the institutions of representative democracy from
undue disruption. To this end, it is understandable that the
legislature has established a timeline for submitting a
referendum that is short and predictable. Government must be
able to move forward with the enforcement of its laws without
concern that the voters could reject such laws at any time in the
future. Government cannot properly function if it is expected to
suspend its operations and wait for referendums to appear.
¶13 Certainly, we can imagine circumstances that might
justify suspending the deadline imposed by section 20A-7-
601(3)(a). Due process would likely dictate that the referendum
timeline be tolled if, for instance, the content of a law or the
fact of its passage were not revealed until after the statutory
period had run. Thus, while passage starts the referendum clock
irrespective of ministerial miscues, a ministerial lapse in
providing notice may result in tolling the statutory referendum
period. Petitioners contend that tolling is warranted here.
They insist that persons who opposed the ordinance but did not
attend the October 24 meeting could not have learned of the
ordinance until its formal posting on November 16, which left
them an unreasonably short time to perfect the referendum. They
might be right. The correctness of their position depends,
however, on proof, and Petitioners did not present any proof to
the district court. Instead, they chose to ground their due
process claim in the assumption that the span of time between
November 16 and December 8 was presumptively so truncated that it
violated Petitioners’ right to due process of law. We disagree.
¶14 Due process is a flexible concept. Its mandates vary
depending on the circumstances. In the context of participation
in governmental affairs, due process guarantees voters the right
to be notified of changes and developments in the laws of their
community. See Citizen’s Awareness Now v. Marakis, 873 P.2d
1117, 1123 (Utah 1994). “[V]oters must be given adequate notice
. . . so that they may institute referendum procedures promptly.”
Id. Petitioners contend that Providence City provided inadequate

Nos. 20070780, 20070805 6
notice of the ordinance and that due process considerations
require that the referendum period be extended to cure this
shortcoming.
¶15 We took up similar challenges to a proposed referendum
in two cases brought against the City of Monticello by Robert Low
and others in Low v. City of Monticello, 2002 UT 90, 54 P.3d
1153, and Low v. City of Monticello, 2004 UT 90, 103 P.3d 130.
We will respectively refer to these cases as Low I and Low II.
When Monticello sold its electrical power distribution system to
a private entity in 1979, the municipality retained a repurchase
option. Monticello finally exercised this option in 2000,
twenty-one years after the sale, and voters attempted to submit
the repurchase option to a referendum. Monticello argued that
the appropriate time to seek a referendum on the repurchase
option was in 1979 when it was created by ordinance and not in
2000 when the city tried to exercise it. Although we agreed with
the city in Low I that 1979 was the appropriate time for
initiating a referendum, we found that the contemporary record
before us was insufficient for us to determine whether Monticello
had actually provided adequate notice of the retained option. We
remanded the case to the district court for further proceedings.
¶16 The holding of Low I thus necessarily called on us to
consider as the sole issue in Low II whether Monticello had
adequately notified its residents of the repurchase option such
that they had an opportunity to institute a referendum. As we
explained in Low II, “The extent of notice required . . . is
merely ‘adequate notice,’ which provides an important, but
relatively low, threshold to satisfy. Adequate notice is . . .
‘notice reasonably calculated to apprise a person of an action,
proceeding, or motion. Notice sufficient to permit an objection
or defense.’” 2004 UT 90, ¶ 15 (quoting Black’s Law Dictionary
37 (5th ed. 1979)). In Low II, we concluded that Monticello’s
publication of the ordinance had “provided City residents with
enough information to allow them to object and initiate a
referendum if they so desired.” Id. ¶ 19.
¶17 In this case, we face two questions relating to the
adequacy of the notice of Providence City’s annexation ordinance:
Did the city council impart adequate notice of the annexation
ordinance at its October 24 meeting? And if the city council did
not, was the notice it provided through the November 16 posting
adequate to permit Petitioners to complete their petition drive
before the December 8 deadline? The answers to both of these
questions can only be discovered in facts and circumstances
surrounding the relevant events. As we noted above, facts and
circumstances might be so apparent from the record that a
deprivation of due process based on inadequate notice could be

7 Nos. 20070780, 20070805
presumed--for example, an ordinance passed at a sparsely attended
city council meeting coupled with the posting of “official”
notice on or after the forty-five-day referendum period had
elapsed would presumptively violate due process. The record in
this case gives us no reason to presume that notice was
inadequate. More to the point, Petitioners can direct us to no
facts in the record from which we could conclude either that the
October 24 meeting did not impart adequate notice or that the
twenty-one-day span between the November 16 posting and the
December 8 deadline was inadequate.
¶18 Notions of fundamental fairness justify our insistence
that the concept of due process be flexible. However, facts are
the levers that cause due process to bend. No facts bearing on
the inability of Petitioners to comply with the statutory
referendum requirements appear in the record before us. Because
such facts do not appear and because the sequence of events that
does appear in the record does not suggest the presence of a
presumptive due process violation, we affirm the order of the
district court.
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¶19 Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Parrish concur in Justice Nehring’s
opinion.