Responses by Provo City Recorder, Amanda Erkanbrack, to our questions:
1. 20A-7-602.7 Requires your office to determine if this matter is referable to voters within 20 days. When does your office plan on making that determination ? I can see no good faith argument running out the clock when any issue as to subject matter that is referable via referendum was definitely answered in Sevier Power v. Hansen Utah Supreme Court 2008 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.
According to UCA 20A-7-604(2) I am required to provide the petition materials to the sponsors within five days of our City Attorney finding the law referable. The sponsors cannot circulate the petitions until the proposition information pamphlet is complete (arguments for and against) and I will not have the final arguments until September 20. If our City Attorney makes his decision before September 15, it would be impossible for me to comply with this law. So yes, we could make the decision a little bit before 20 days but doing so would make it difficult to have the materials prepared by the deadline.
As you noted, state statute requires the determination to be made within 20 days. It also requires a number of other concurrent processes outside of my control including a review by the City Attorney, a financial impact statement from the budget officer, and the preparation of an information pamphlet containing arguments from both sides. We will undertake those steps in a timely manner.
2. What is the effective Date of Ordinance 2020-36R (veto overridden ordinance 2020-36V) ?
Ordinance 2020-36R was recorded and became effective on August 27, following the Council Meeting. (The number you have listed is just a tracking number that is used until the ordinance is voted on and assigned an ordinance number.)
3. What is the expatriation date of Ordinance 2020-36R?
Ordinance 2020-36R will be automatically repealed on November 15, 2020, unless it is amended by ordinance prior to October 20, 2020.
4. Does the referendum filing have any effect on the ordinance?
No, not until the petition is determined to be sufficient.
5. What Utah Statutes are you relying on for your answer to number 4.
Utah Code Section 20A-7-601(5)(b).
6. Under the statutory scheme (Utah Code 20A-7-6) is it possible to have a successful referendum on ordinance of this nature, or does it become moot ? Ie according to your time line December 11th would be the earliest to declare the referendum sufficient and put the ordinance on hold.
The timeline that was provided to [the UMF representative] assumes each activity takes the maximum amount of time allowed by statute. It is possible some of these activities, particularly signature gathering, could be completed earlier. Whether or not the ordinance will be in effect at any given point in the referendum process is not something that can be determined at this time. If at some point during the referendum process there is no longer an ordinance to be challenged, then the referendum would be moot.
7. If you accept the statutory interpretation and the law remains in force until the referendum is declared sufficient, is there any way for the citizens to hold a referendum on a local law or ordinance that is self expiring or subject to change before a referendum could be declared sufficient?
The referendum process is set forth in the statutes we have been discussing. Legal advice on that process is outside my purview. You may wish to consult your own legal counsel.
8. Is there any conflict with the your statutory interpretation of the referendum code and Article VI, Sec.1 (2)(b)(ii) require any law or ordinance passed by the law making body of the county, city, or town to be submitted to the voters thereof, as provided by statute, before the law or ordinance may take effect.
The language you quoted includes the phrase “as provided by statute.” UCA 20A-7-601 is part of the statutory process authorized by the Constitution to refer a local law to the voters. Until the petition has been found to be sufficient, the law has not been required to be submitted to the voters.
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Provo City said they will attempt to enforce this ordinance before the referendum process is concluded. In their work meeting, the Provo City council indicated that while enforcing an ordinance might not be legal because it is subject to referendum, they would do it anyway.
"Provo City Recorder Amanda Ercanbrack confirmed that the city would not implement a stay on the mask mandate until the petition has received enough signatures. 'Thats not our interpretation of the law,' Ercanbrack said, responding to the concerns of Utahns for Medical Freedom [the group formed by the referendum filers]."
Source: https://www.fox13now.com/news/coronavirus/local-coronavirus-news/referendum-sought-on-provo-mask-mandate
"But Provo Deputy City Attorney Brian Jones said by statute the Utah Legislature devised a specific process for putting a referendum on the ballot and getting a law suspended, which includes collecting the signatures first and having them certified. 'Until [UMF collects] those signatures and [has] them certified, they haven’t followed the process provided by statute and therefore the law isn’t suspended until they’ve done that.'"
Source: https://www.sltrib.com/news/politics/2020/09/01/utah-group-has-filed/
"Cliff Strachan, executive director of the Provo Municipal Council, explains the catalyst behind the mask mandate that is being challenged. 'This temporary ordinance adopted by the elected representation of this community and based on available, verifiable and peer-reviewed science, is intended to protect the health and safety of all people in the community as public and higher education classes resume,' Strachan said. The earliest all signatures can be validated, and the decision on if it meets requirement for being on the 2021 ballot, is Dec. 11. The face mask mandate has a sunset date of Nov. 14 -- before the Utah County Elections Office will have the final signatures verified."
Source: https://www.heraldextra.com/news/local/central/provo/provo-residents-file-referendum-on-face-mask-mandate/article_a41bf81f-cecc-5cc8-adc9-bdc2ebb2dd47.html
1. 20A-7-602.7 Requires your office to determine if this matter is referable to voters within 20 days. When does your office plan on making that determination ? I can see no good faith argument running out the clock when any issue as to subject matter that is referable via referendum was definitely answered in Sevier Power v. Hansen Utah Supreme Court 2008 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.
According to UCA 20A-7-604(2) I am required to provide the petition materials to the sponsors within five days of our City Attorney finding the law referable. The sponsors cannot circulate the petitions until the proposition information pamphlet is complete (arguments for and against) and I will not have the final arguments until September 20. If our City Attorney makes his decision before September 15, it would be impossible for me to comply with this law. So yes, we could make the decision a little bit before 20 days but doing so would make it difficult to have the materials prepared by the deadline.
As you noted, state statute requires the determination to be made within 20 days. It also requires a number of other concurrent processes outside of my control including a review by the City Attorney, a financial impact statement from the budget officer, and the preparation of an information pamphlet containing arguments from both sides. We will undertake those steps in a timely manner.
2. What is the effective Date of Ordinance 2020-36R (veto overridden ordinance 2020-36V) ?
Ordinance 2020-36R was recorded and became effective on August 27, following the Council Meeting. (The number you have listed is just a tracking number that is used until the ordinance is voted on and assigned an ordinance number.)
3. What is the expatriation date of Ordinance 2020-36R?
Ordinance 2020-36R will be automatically repealed on November 15, 2020, unless it is amended by ordinance prior to October 20, 2020.
4. Does the referendum filing have any effect on the ordinance?
No, not until the petition is determined to be sufficient.
5. What Utah Statutes are you relying on for your answer to number 4.
Utah Code Section 20A-7-601(5)(b).
6. Under the statutory scheme (Utah Code 20A-7-6) is it possible to have a successful referendum on ordinance of this nature, or does it become moot ? Ie according to your time line December 11th would be the earliest to declare the referendum sufficient and put the ordinance on hold.
The timeline that was provided to [the UMF representative] assumes each activity takes the maximum amount of time allowed by statute. It is possible some of these activities, particularly signature gathering, could be completed earlier. Whether or not the ordinance will be in effect at any given point in the referendum process is not something that can be determined at this time. If at some point during the referendum process there is no longer an ordinance to be challenged, then the referendum would be moot.
7. If you accept the statutory interpretation and the law remains in force until the referendum is declared sufficient, is there any way for the citizens to hold a referendum on a local law or ordinance that is self expiring or subject to change before a referendum could be declared sufficient?
The referendum process is set forth in the statutes we have been discussing. Legal advice on that process is outside my purview. You may wish to consult your own legal counsel.
8. Is there any conflict with the your statutory interpretation of the referendum code and Article VI, Sec.1 (2)(b)(ii) require any law or ordinance passed by the law making body of the county, city, or town to be submitted to the voters thereof, as provided by statute, before the law or ordinance may take effect.
The language you quoted includes the phrase “as provided by statute.” UCA 20A-7-601 is part of the statutory process authorized by the Constitution to refer a local law to the voters. Until the petition has been found to be sufficient, the law has not been required to be submitted to the voters.
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Provo City said they will attempt to enforce this ordinance before the referendum process is concluded. In their work meeting, the Provo City council indicated that while enforcing an ordinance might not be legal because it is subject to referendum, they would do it anyway.
"Provo City Recorder Amanda Ercanbrack confirmed that the city would not implement a stay on the mask mandate until the petition has received enough signatures. 'Thats not our interpretation of the law,' Ercanbrack said, responding to the concerns of Utahns for Medical Freedom [the group formed by the referendum filers]."
Source: https://www.fox13now.com/news/coronavirus/local-coronavirus-news/referendum-sought-on-provo-mask-mandate
"But Provo Deputy City Attorney Brian Jones said by statute the Utah Legislature devised a specific process for putting a referendum on the ballot and getting a law suspended, which includes collecting the signatures first and having them certified. 'Until [UMF collects] those signatures and [has] them certified, they haven’t followed the process provided by statute and therefore the law isn’t suspended until they’ve done that.'"
Source: https://www.sltrib.com/news/politics/2020/09/01/utah-group-has-filed/
"Cliff Strachan, executive director of the Provo Municipal Council, explains the catalyst behind the mask mandate that is being challenged. 'This temporary ordinance adopted by the elected representation of this community and based on available, verifiable and peer-reviewed science, is intended to protect the health and safety of all people in the community as public and higher education classes resume,' Strachan said. The earliest all signatures can be validated, and the decision on if it meets requirement for being on the 2021 ballot, is Dec. 11. The face mask mandate has a sunset date of Nov. 14 -- before the Utah County Elections Office will have the final signatures verified."
Source: https://www.heraldextra.com/news/local/central/provo/provo-residents-file-referendum-on-face-mask-mandate/article_a41bf81f-cecc-5cc8-adc9-bdc2ebb2dd47.html