Snow v. Office of Legislative Research

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2007 UT 63
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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Carmen Snow, Sarah Meier, 	Nos. 20070417
Jeanetta Williams, Pat Rusk, 	20070407
and Lamont Tyler,
Petitioners,
v.
Office of Legislative Research and
General Counsel,
Respondent.
Curtis S. Bramble, in his capacity
as a Senator for the State of Utah;
Stephen H. Urquhart, in his capacity
as a House Representative for the
State of Utah; Brenda Larner, an
individual; Laura Johnson, an
individual; Peggy Maciel, an
individual; and Parents for
Choice in Education, Inc.,
a Utah corporation,
Petitioners,
v.
Office of Legislative Research
and General Counsel, a government
entity; and Gary R. Herbert, in
his capacity as Lieutenant 	F I L E D
Governor of the State of Utah,
Respondents. 	August 21, 2007
Original Proceeding in this Court
Attorneys: 	Clark Waddoups, Jeffrey J. Hunt, David C. Reymann,
Cheylynn Hayman, Brinton R. Burbidge, Harold G.
Christensen, Michael L. Deamer, Michael T. McCoy,
Geoffrey W. Leonard, Patrick L. Tanner, Salt Lake
City, Robert H. Chanin, John M. West, Jennifer L.
Hunter, Washington, D.C., for petitioners
Thom D. Roberts, M. Gay Taylor, Robert H. Rees,

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Salt Lake City, for respondents
David R. Irvine, Alan L. Smith, Carol B. Lear,
Janet I. Jenson, Jean Welch Hill, Salt Lake City,
for amici
WILKINS, Associate Chief Justice:
¶1 	In February, during its 2007 general session, the Utah
Legislature passed House Bill 148 entitled “Education Vouchers.”
By its terms, HB 148 creates a program under which scholarships
may, in certain circumstances, be awarded to students who attend
private school. 	The House passed HB 148 by a vote of thirty-
eight to thirty-seven. 	Subsequently, HB 148 also passed the
Senate and was signed into law by the Governor. 	Shortly after,
before HB 148 became effective, the legislature also passed HB
174, entitled “Education Voucher Amendments,” by more than a two-
thirds majority in each chamber. 	By its terms, HB 174 purports
to modify some of the provisions of HB 148.
¶2 	In March, petitioner Carmen Snow, along with five other
individuals, filed the necessary request with the Lieutenant
Governor seeking a citizen referendum on HB 148. 	The Lieutenant
Governor furnished them with a referendum petition in the form
prescribed by law, which identified HB 148 as the subject of the
proposed challenge. 	Snow and her colleagues became the official
sponsors of the petition. 	They circulated the petition to
acquire the requisite number of voter signatures to qualify the
referendum for placement on the ballot and presentation to the
voters. 	The petition said only that HB 148 had been enacted by
the legislature and that the signers of the petition wished to
have it placed on the ballot for voter approval. 	Once sufficient
signatures were gathered and verified, the Lieutenant Governor
alerted the Governor that the petition had been properly
circulated and had sufficient voter signatures to require that HB
148 be placed before the voters. 	The Governor then set the date
for the election.
¶3 	By statute, once a legislative enactment has been
successfully placed on the referendum track, it does not become
effective until, and unless, approved by a majority of those
voting on the referendum. 	Utah Code Ann. § 20A-7-301(2) (2003).
Such was, and is, the fate of HB 148. 	However, since HB 174, the
“Education Voucher Amendments” bill, passed both chambers of the
legislature by a vote of more than two-thirds, it is not subject
to voter referendum. 	Theoretically at least, it was effective in
due course after legislative passage and signature by the
Governor.
Nos. 20070417, 20070407 	2

¶4 	As part of the statutorily mandated process of the
referendum on HB 148, the Lieutenant Governor delivered a copy of
the completed and verified petition to the Office of Legislative
Research and General Counsel. 	It falls to the Legislative
General Counsel to prepare a short and neutral descriptive
explanation of the referendum petition to appear on the ballot as
the title of the measure on which voters will be asked to cast
their “for” or “against” vote. 	Id. § 20A-7-308 (2003). 	This
“ballot title” is prepared in the Office of Legislative Research
and General Counsel and delivered to the Lieutenant Governor.
Id. 	The proposed ballot title prepared by the legislative
counsel in this instance reads:
Citizens’ State Referendum Number 1
Ballot Title
In February 2007, the Utah Legislature passed HB
148, Education Vouchers. 	This bill will take effect
only if approved by voters. 	The bill:
• 	establishes a scholarship program for:
• 	qualifying school-age children who newly
enroll in eligible private schools; and
• 	lower income school-age children who continue
their enrollment in eligible private schools;
• 	provides for scholarships within that program of
$500 to $3,000, depending on family size and
income, increasing those scholarship amounts in
future years; and
• 	allows school districts to retain some per-student
funding for scholarship students who transfer to
private schools.
Are you for or against HB 148 taking effect?
¶5 	Oddly enough, it seems that no one was satisfied with
the work of the legislative counsel. 	Both opponents and
proponents of the educational voucher law felt that the ballot
title failed to adequately inform the voters of the nature of the
referendum upon which they were being asked to vote.
¶6 	Senator Curtis Bramble, the majority leader of the Utah
Senate and the Senate sponsor of HB 148, Representative Stephen
Urquhart, the House sponsor, and others were the first to file a
petition in this court challenging the language of the ballot
title, asking that we revise it or, in the alternative, take the
extraordinary step of cancelling the referendum election set by
the Governor. 	The Bramble petitioners noted that the statute by
which this court is authorized to tinker with the language of a
ballot title appears to restrict to the sponsors of the
3 	Nos. 20070417, 20070407

referendum the opportunity to challenge the title’s language.
Id. § 20A-7-308. 	However, despite that impediment, they felt
that the issue was of sufficient importance that we ought to
resist the temptation to follow the statute to the letter, and
consider their petition on the merits.
¶7 	The Bramble petition named the Office of Legislative
Research and General Counsel and the Lieutenant Governor as
parties. 	The sponsors of the referendum were not included. 	The
Office of Legislative Research and General Counsel and the
Lieutenant Governor both responded, opposing the Bramble
petition, and noting the lack of proper standing for the
challenge to the ballot title language. 	A small flurry of other
pleadings and motions followed.
¶8 	A few days later, the referendum sponsors, Carmen Snow
and others, also brought an action in this court challenging the
wording of the ballot title. 	They named only the Office of
Legislative Research and General Counsel as respondent party.
Doing so, they created a circumstance under which the Bramble
petitioners, as legislative sponsors of the challenged HB 148,
were entitled to intervene and participate.
¶9 	All parties urged the court to hear and decide the
matter with all possible haste. 	Despite the fact that the
election itself was nearly eight months distant, deadlines for
submission of written voter information materials were imminent.
¶10 	In order to avoid the necessity of resolving on their
relative merits the pending motions and objections to the
standing of the Bramble petitioners, with the attendant time-
consuming and constitutionally guaranteed notice and opportunity
to be heard, we took the unsolicited step of consolidating the
two petitions as a single matter. 	Doing so eliminated the legal
difficulty relating to standing for the Bramble petitioners and
allowed us to address the central questions raised by the parties
without delay.
¶11 	The referendum petition was declared “sufficient” by
the Lieutenant Governor on April 30, 2007. 	The proposed ballot
title was prepared and returned to him on May 15. 	Copies were
then made available to the various interested parties. 	The first
petition, filed by Senator Bramble and others, arrived at the
court on May 24, 2007. 	The Snow petition was filed May 30, 2007.
After giving the parties the necessary notice of our
consolidation of the petitions, and allowing them minimal time to
respond to positions raised by each other, we heard arguments
from all concerned parties on June 8, 2007, and rendered our
decision that same day from the bench. 	This opinion is the
Nos. 20070417, 20070407 	4

official recitation of that decision. 	As we noted at that time,
we rarely announce a decision from the bench, and certainly not
the same day as oral argument. 	Fortunately, the able and
thorough work of counsel for all parties aided significantly in
that effort.1
¶12 	Our state constitution limits the role of the supreme
court. 	The legislative branch of government is charged with the
declaration of policy, in response to the expressed wishes of
citizens shown by the selection of their representatives and
senators. 	The executive branch is charged with implementation of
that policy. 	As he said in this case, the role of the Lieutenant
Governor, like that of the other state-wide elected officers--the
Governor, Attorney General,2 Treasurer, and Auditor--is to apply
the policy expressed in law by the legislature.
¶13 	Occasionally, the expression of state policy from our
legislative branch is not as clear and understandable as they, or
we as citizens, might hope. 	Such is the nature of the
legislative process. 	However, when the policy and the intent of
the legislature is unclear with respect to a particular
enactment, it is to the judicial branch of state government that
we turn for clarification. 	Usually, a question about the proper
use or application of a statute enacted by the legislature is
brought to the trial court as a starting point for resolution.
1 We do not knowingly delay the result in any matter
presented to us for resolution. 	However, given our
responsibility as the court of last resort on Utah law, we must
always err on the side of trying to get the answer right, rather
than simply getting it quickly. 	In this instance the issues were
narrow and well presented and described clear alternatives.
This, too, made it possible to expedite the decision.
2 In this instance, as in many others, the Attorney General
was asked for his legal analysis and opinion on a question of
state law. 	As the senior legal officer in the executive branch,
the Attorney General issues opinions for the guidance of
executive branch officers, agencies, and employees. 	In doing so,
he often must act without specific guidance from this court. 	In
this instance, the opinion of the Attorney General reached a
different result from that reached by us regarding the
seaworthiness of HB 174 as an independent vessel for the
educational voucher program. 	Nothing of consequence should be
attributed to that difference. 	As with any legal analysis, until
a court of last resort speaks on an issue, reasonable and
informed minds may well differ. 	As with the old saw, the supreme
court is not last because we’re always right, we’re “right”
because we’re always last. 	Such is our constitutionally mandated
system.
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This process allows all who may have a legitimate stake in the
outcome of the proceeding to thoughtfully aid the court in
reaching resolution, and for the issues and questions, should
they persist and eventually reach the supreme court, to have been
subjected to the careful review and critique of advocates for
both sides, a trial judge and possibly a jury of citizens, and in
most cases, three of our colleagues on the Utah Court of Appeals.
This process, although sometimes lengthy, was calculated by the
framers of our form of government to be most likely to produce a
correct result.
¶14 	In addition, when a case comes to us for review after
that full process, we usually have not only the work of the
lawyers and lower courts to help us understand, we also have the
benefit of a period of weeks to review, consider, research, and
resolve those questions before announcing a binding decision.
This additional investment of time is also designed to increase
the likelihood of reaching legally correct and just results.
¶15 	Because it is the sponsors of the referendum that have
the clear statutory right to seek modification of the ballot
title language, we address first the claims and concerns of the
sponsors. 	The Snow petitioners argue that the ballot title is
patently false because it gives no clear indication of whether
the referendum vote on HB 148 will prevent the implementation of
a voucher program under HB 174. 	The Snow petitioners request
that if we do not change the language of the ballot title, that
we issue a writ indicating that HB 174, as a mere amendment to HB
148, is subject to the vote on HB 148 and cannot stand on its
own. 	Although we agree with that analysis, a writ is not an
appropriate vehicle for that indication.
¶16 	The Bramble petitioners also argue that the ballot
title is patently false. 	They claim that HB 148 was superseded
by HB 174, and, therefore, HB 148 ceased to exist for purpose of
referendum, except as to those sections which were not reenacted
by HB 174. 	The Bramble petitioners ask us to clarify that HB 174
can stand on its own, and as such, that any referendum vote on HB
148 would not prevent the implementation of the voucher program.
¶17 	The Utah Constitution allows the citizens of Utah a
direct hand in rejecting or modifying the handiwork of the
legislative branch. 	An initiative petition offers an avenue for
voters to create statutory law without the participation of the
legislature. 	On the other hand, a referendum petition is for the
sole purpose of giving voters the opportunity to accept or reject
a specific legislative enactment. 	When either of these direct
citizen legislative actions occurs, it is to the ballot that the
matter is finally directed. 	In the case of a referendum
Nos. 20070417, 20070407 	6

petition, citizens who vote are given a choice to accept or
reject the challenged legislative action.
¶18 	The process by which this vote is accomplished
specifies in detail the responsibilities of the participants in
that process. 	It falls to the legislative staff, specifically
the Office of Legislative Research and General Counsel, the
legislature’s lawyers, to craft a statement of what the voter is
being asked to decide. 	That statement, the ballot title, is
carefully restricted by law to avoid any inadvertent or
intentional slanting of the information that will appear on the
ballots distributed to voters and reproduced in information sent
to voters by the state. 	Utah Code Ann. § 20A-7-308.
¶19 	By law, the legislative legal staff is required to
produce a statement, the ballot title, that is an impartial
summary of the contents of the referendum. 	Id. § 20A-7
308(2)(a)(ii). 	The title may not exceed one hundred words. 	Id.
§ 20A-7-308(2)(b). 	Once prepared, the ballot title is
distributed to the referendum sponsors and other interested
persons. 	Id. § 20A-7-308(3). 	The sponsors have fifteen days
from the day the Lieutenant Governor mails the title to them
within which to challenge the wording. 	Id. §20A-7-308(4)(a)(i).
That is what the Snow petitioners, as the sponsors of the
referendum, have done.
¶20 	The challenge to the language of a ballot title comes
directly here. 	However, that challenge comes with strings
attached. 	The legislature, as is their duty under our
constitution, has set the policy for how these challenges are to
be resolved. 	The supreme court is required to examine the ballot
title, hear arguments from the directly interested parties, and
within five days of reaching our decision, send the Lieutenant
Governor a ballot title that impartially summarizes the
referendum issue on the ballot. 	Id. § 20A-7-308(4)(c).
¶21 	In addition, we are restricted in the scope of our
review. We are required by law to presume that the ballot title
prepared by the legislative staff is an impartial summary. 	Id.
§ 20A-7-308(4)(b)(i). 	We are not permitted to change the wording
of the ballot title unless we are clearly convinced by the
sponsors that the ballot title is either “patently false” or
“biased.” 	Id. § 20A-7-308(4)(b)(ii). 	It is not within our
statutory grant of authority to modify the ballot title because
we think there may be a better or more clearly stated way of
putting it. 	The fact that all the world may be confused by a
proposed ballot title, alone, is also not enough. 	To modify the
language, we must find, by the heightened standard of proof, that
the proposed title is clearly false or clearly biased.
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¶22 	However, in addition to our limited statutory grant of
authority and responsibility relating to false or biased ballot
titles, we also have the authority granted us by the people of
Utah under the constitution. 	That power is somewhat more
extensive. 	And it is to that broader power that all of the
parties appeal, in the event we do not agree with their
particular application of the ballot title statutory authority.
¶23 	While there are any number of reasons to reject the
suggestion that we move beyond our limited ballot title review,
there are also significant reasons urging our further action.
Because we find no patent falsity or clear bias in the ballot
title presented by the Office of Legislative Research and General
Counsel, we need not strain to reach an accommodation between the
clear restrictions of the statute and the desire of the parties
that we exceed those restrictions in this instance.
¶24 	On the other hand, it is within our broader grant of
constitutional power to review and render a decision on the
efficacy of an enacted and existing statute. 	This is
particularly meaningful in an instance, such as this, where the
scope of that statute is central to completing our assigned task
of reviewing the claims of falsity related to ballot title
language. 	Both petitions urge claims of falsity based upon an
alleged failure of the legislative counsel to include comments
regarding HB 174 in the ballot title. 	To evaluate those claims,
we must first understand the impact of HB 174 on HB 148, if any,
and the converse. 	HB 174 was passed by both houses of the
legislature and signed into law by the governor. 	As such,
whatever its effect, it is on our books and is a presently
existing statute. 	The petitioners in both of the consolidated
cases also urge us to review the status of HB 174 in their
alternative petitions for extraordinary writs. 	In addition, in
order to determine whether or not the petitioners have made out a
clear and convincing case that the ballot title is defective, we
must consider, and understand, what HB 174 does.
¶25 	Consequently, we turn first to HB 174, "Education
Voucher Amendments." 	At first reading, the substantive provisions
contained in HB 174 appear to contain enough to stand alone as
the creation of a school voucher program. 	However, the language
of the bill itself suggests otherwise. 	First, key terms defined
in HB 148 are not defined in HB 174, such as “board” and “income
eligibility guideline.” 	These two terms, used frequently in the
statute, may well be subject to eventual interpretation.
However, their definition in HB 148, and absence in HB 174,
strongly suggests that the “Education Voucher Amendments” bill
was meant to actually amend, and not to replace, HB 148. 	Second,
unlike HB 148, HB 174 received no appropriation to implement an
Nos. 20070417, 20070407 	8

education voucher program. 	This $12,000,000 difference also
strongly suggests the two enactments were meant to be a single
whole.
¶26 	Finally, HB 174 contains a coordinating provision,
unlike HB 148. 	The coordinating clause expresses the intent that
“[i]f this HB 174 and HB 148, Education Vouchers, both pass, it
is the intent of the Legislature that the amendments to the
sections in this bill supersede the amendments” to the
corresponding provisions in HB 148. 	This language could be read
to mean that whichever of the bills passes, if not both, will
control. 	It can also be read to mean that if HB 174 passes, it
controls over the existing provisions of HB 148. 	Tellingly, at
the time HB 174 was introduced in the legislature, HB 148 had
already passed both houses and been signed into law by the
governor. 	Therefore, it is illogical to suggest that the intent
was to allow whichever bill became law to control, since HB 148
already was law.
¶27 	These indications lead us to the conclusion that HB 174
was intended by the legislature to amend HB 148, not supplant it.
At the time of passage, HB 174 was not intended to be a stand
alone substitute for HB 148. 	Although that could have been done
by the legislature, it was not done in this instance.3
¶28 	HB 174 does not stand alone, and must have HB 148 to
amend if it is to have any legal consequence at all. 	If the
voters choose to reject HB 148, HB 174 will not create an
additional voucher program. 	If the voters choose to accept HB
148, the amendments of HB 174 will automatically be applied.
¶29 	With this legal relationship resolved, we turn to the
challenged ballot title. 	As prepared by the Office of
Legislative Research and General Counsel, the ballot title reads:
Citizens’ State Referendum Number 1
Ballot Title
3 Parties have directed our attention to statements made in
the course of debate and enactment of HB 174 that appear to
support our conclusion. 	However, since we find the language of
the bill itself sufficient to reach that conclusion, we need not
reach the legislative history.
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In February 2007, the Utah Legislature passed
HB 148, Education Vouchers. 	This bill will take effect
only if approved by voters. 	The bill:
• 	establishes a scholarship program for:
• 	qualifying school-age children who newly
enroll in eligible private schools; and
• 	lower income school-age children who continue
their enrollment in eligible private schools;
• 	provides for scholarships within that program of
$500 to $3,000, depending on family size and
income, increasing those scholarship amounts in
future years; and
• 	allows school districts to retain some per-student
funding for scholarship students who transfer to
private schools.
Are you for or against HB 148 taking effect?
¶30 	The petitioners in both cases before us base any claim
that the ballot title is patently false on the absence of
interpretive references to HB 174. 	As we have noted above,
interpretive references in the ballot title would have been
improper in this instance. 	As a result, the parties have not
persuaded us that anything in the ballot title is inaccurate,
much less patently false. 	The law requires us to conclude that
something meaningful in the ballot title is patently false or
biased if we are to modify the language in any way. 	Utah Code
Ann. § 20A-7-308(4)(b)(ii). 	We conclude that nothing in the
ballot title is substantively false; nothing in the ballot title
suggests bias; and nothing need be added to reflect the impact of
HB 174.
CONCLUSION
¶31 	We find nothing in the work of the Office of
Legislative Research and General Counsel suggesting any
intentional or even inadvertent bias. 	Further, the ballot title
prepared by Ms. Taylor and her legal staff appears to accurately
and correctly reflect the precise nature and content of the
ballot referendum submitted to the Lieutenant Governor. 	HB 174,
the educational voucher amendments measure, passed by more than
two-thirds vote of each house of the legislature and is not
subject to referendum. 	It is not addressed by the proposed
ballot title, nor would it properly be.
¶32 	We also conclude that HB 174, “Educational Voucher
Amendments,” is dependent upon HB 148, “Educational Vouchers,”
for meaning. 	It is the clearly expressed intent of the
legislature that the provisions of HB 174 modify the provisions
of HB 148. 	Should HB 148 be rejected by the voters under the
referendum, HB 174 would be without legal meaning. 	Specifically,
Nos. 20070417, 20070407 	10

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we conclude that HB 174 was not intended by the legislature to
stand alone as an independent act creating an educational voucher
program, and therefore it does not. 	Although HB 174 is not
subject to referendum by the voters, it is subject to the
consequences of the referendum on HB 148.
¶33 	The challenges to the ballot title are rejected on
their merits. 	The petitions for extraordinary writs are also
denied on their merits.
¶34 	We express gratitude to the parties and their counsel
for the professional and excellent way in which this matter has
been handled, notwithstanding the demands placed upon them.
¶35 	Justice Durrant, Justice Parrish, and Justice Nehring
concur in Associate Chief Justice Wilkins’ opinion.
¶36 	Having disqualified herself, Chief Justice Durham does
not participate herein.
11 	Nos. 20070417, 20070407