Letter to potential lawyers:
We are a group of Provo citizens called “Utahns For Medical Freedom” (UMF) who just filed a referendum on the council's new mandatory mask ordinance. Provo City responded that they will attempt to enforce their mandatory mask ordinance before the referendum process is concluded.
The Utah Constitution gives voters the right to put any local ordinance up for a vote of the People. It also requires that the Citizens Referendum process be concluded BEFORE any local ordinance takes effect [Art. VI, Sec. 1(2)(b)].
In addition, they, along with other counties and cities, are passing "temporary" ordinances that expire prior to the conclusion of the referendum process, and will repeat that process indefinitely. These will effectively neuter the people's right to challenge any local ordinance via a referendum.
If they get away with this in Provo City, they will get away with it statewide. And the incursions will increase exponentially over time.
We need to file an emergency writ with the Utah supreme court to declare that this Provo ordinance cannot be enforced until the referendum process has been concluded.
To file this correctly and professionally, we need help from one or more Utah attorneys. Preferably pro bono, but if not, to simply file an injunction, could you please do it for $5000? We started a GoFundMe to raise the money to pay for this and if that is successful, we will attempt to raise more money should we decide to take this further.
Below is more detailed analysis...
REFERENDUM POWERS ARE CLEAR
The Utah Constitution gives voters the right to put ANY county or city ordinance up for a vote of the People via referendum. It also requires that this referendum process be concluded BEFORE any local ordinance takes effect:
"The legal voters of any county, city, or town, in the numbers, under the conditions, in the manner, and within the time provided by statute, may... 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. - Art. VI, Sec. 1(2)(b)
City attorney Brian Jones, responded saying "The full Article Vl Sec and subsections should be used. UMF is leaving out important words including 'as provided by statute.' It has been suggested that it is a violation of the Utah Constitution for a local law (in this case the Provo face-covering ordinance) to go into effect while opponents to that law seek to have it referred to the voters. The language of the state Constitution instead states that voters may require any local law to be submitted to the voters, 'as provided by statute, before the law or ordinance may take effect.' According to Utah Code Section 20A-7-601(5)(b), part of the statute governing referenda that is specifically authorized by the Constitution, when a referendum petition has been declared sufficient, that is the point at which the law does not take effect. That statute does not conflict with the Constitution because the Constitution specifically delegates authority over referenda procedures to the Legislature and, according to that procedure, the petition sponsors have not successfully required that the law be submitted to the voters until the petition and the gathered signatures have been declared sufficient."
In response to Jones' argument, we assert that the statute doesn't trump the constitution. When there is a conflict, the constitution prevails. Conflicts with legislature recently changed (2019) UCA 20a-7-601(6) to declare that only the referendum election, if successful, can REPEAL a law or ordinance:
"If the referendum passes, the local law that was challenged by the referendum is repealed as of the date of the election."
This question was definitional answered by the Utah Supreme Court in 2008 in Sevier v Hansen. The court held the statory provisions allowed are limited to time place and manner for the initiative or referendums... It does not extend beyond that. They held the statutory provision was UNCONSTITUTIONAL...¶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.
The Utah Supreme Court has written the following about the people's initiative and referenda powers in Gallivan v Walker SC 2002:
"Because the people's right to directly legislate through initiative and referenda is sacrosanct and a fundamental right, Utah courts must defend it against encroachment maintain it inviolate... ('[I]t is our solemn duty to jealously guard the precious initiative power, and to resole any reasonable doubts in favor of its exercise.')"
"...The initiative power and the citizens' right to legislature directly through the exercise of that power is a fundamental right... The legislature's purpose to unduly burden or constrict that fundamental right by making it harder to place initiatives on the ballot is not a legitimate legislative purpose. Endorsing this legislative purpose would essentially allow the legislature without limitation to restrict and circumscribe the initiative power reserved to the people, thus rendering itself the only legislative game in town. If such a legislative purpose were legitimate, the legislature would be free to completely emasculate the initiative right and confiscate to itself the bulk of, if not all, legislative power."
"...The people's sovereign legislative power [is] in both (1) a representative legislature and (2) the people of the State, in whom all political power is inherent."
"...The power of the people to legislate through initiative and referenda are coequal, coextensive, and concurrent and share 'equal dignity'."
"The people [are] a legislative body coequal in power and with superior advantages to the Legislature...."
"Other rights, even the most basic, are illusory if the right to vote is undermined."
"The initiative right encourages political dialogue and allows the general populace to have substantive and meaningful participation in enacting legislation that impacts society. It is democracy in its most direct and quintessential form...."
They later wrote in Sevier Power v Hansen 2008, which was mentioned above:
"The initiative power is, as with all other powers identified in our constitution, is a creature of the people."
They also held in Sevier Power v. Hansen that,
"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. This reservation must be read to mean any substantive topic and any legislative act."
This broad interpretation was upheld in Carter v Lehi (2012), Krejci v. Saratoga Springs (2013), and most recently in Baker v. Carlson (2018).
The legislature sets the conditions, manner, and time of the referendum process. That's it. Again from Gallivan v Walker:
"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. 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."
And again, in Vega v. Jordan Valley Medical Center 2019, the Utah Supreme Court quoted the Arizona Supreme Court in Whitney v. Bolin:
"[W]here the constitution expressly provides the manner of doing a thing, it impliedly forbids it being done in a substantially different manner."
ENTER THE LEGISLATURE
The legislature recently changed UCA 20a-7-601(6) to declare that only the referendum election, if successful, can REPEAL a law or ordinance:
"If the referendum passes, the local law that was challenged by the referendum is repealed as of the date of the election."
ENTER PROVO CITY
Provo citizens just filed a referendum on their new mandatory mask ordinance:
August 25th 2020 Council Meeting with ordinance 2020-118: https://documents.provo.org/OnBaseAgendaOnline/Documents/ViewDocument/Council_Meeting_1971_Agenda_Packet_8_25_2020_5_30_00_PM.pdf?meetingId=1971&documentType=AgendaPacket&itemId=0&publishId=0&isSection=false
August 27th 2020 Council meeting veto override ordinance 2020-120: https://documents.provo.org/OnBaseAgendaOnline/Documents/ViewDocument/Council_Meeting_1972_Agenda_Packet_8_27_2020_6_00_00_PM.pdf?meetingId=1972&documentType=AgendaPacket&itemId=0&publishId=0&isSection=false
Published on Provo City's Website as Ordinance 2020-36 Updated August 27th (20-118): http://www.provocitycouncil.com/2020/08/provos-covid-19-mask-ordinance.html?m=1&fbclid=IwAR1-ZhcJhFqCRGM2P7HQ_-4B0zhCWA1Ygqr8Wv8FTjyGRCMNuV4msS0osko
Provo City responded by saying they will attempt to enforce this ordinance before the referendum process is concluded. In their work meeting two days ago, 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.
The press also reported the following:
Twitter:
@BenWinslow
·
6h
Here's the tricky part:
@provocity
interprets the statute to say the mask mandate IS in effect NOW. This group? Says it's on-hold pending their referendum application
@BenWinslow
An important UPDATE to this.
@provocity
tells me if their application for a referendum goes forward and gets the required signatures, "Utahns for Medical Freedom" would get on the 2021 ballot. Well after the original ordinance expires:
"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
The issue is simple: is the statute controlling, or is the constitutional language controlling?
IF UNCHALLENGED, LOCAL REFERENDUMS WILL BE EFFECTIVELY NEUTERED
Citizens recently filed a similar referendum in Salt Lake County. See their filings at https://accountabilityutah.org/IssuesAlerts/News/2020/SL-County-Council-Referendum/
Like Provo City, other counties and cities are passing "temporary" ordinances that expire prior to the reasonable conclusion of any referendum process. They will simply pass new "temporary" ordinances in the same manner. This will effectively neuter the people's right to challenge any local ordinance via a referendum, because they will never be able to challenge it in time to stop it.
Provo City is the lynch pin. If they get away with flagrantly violating the Utah Constitution to enforce this ordinance, the same abuses will happen statewide. And the incursions will increase exponentially over time.
Please email us at [email protected] if you would like to help us. More information can also be found on our website https://utahnsformedicalfreedom.weebly.com/
Thank you for your time and help preserving our freedom in Provo!
We are a group of Provo citizens called “Utahns For Medical Freedom” (UMF) who just filed a referendum on the council's new mandatory mask ordinance. Provo City responded that they will attempt to enforce their mandatory mask ordinance before the referendum process is concluded.
The Utah Constitution gives voters the right to put any local ordinance up for a vote of the People. It also requires that the Citizens Referendum process be concluded BEFORE any local ordinance takes effect [Art. VI, Sec. 1(2)(b)].
In addition, they, along with other counties and cities, are passing "temporary" ordinances that expire prior to the conclusion of the referendum process, and will repeat that process indefinitely. These will effectively neuter the people's right to challenge any local ordinance via a referendum.
If they get away with this in Provo City, they will get away with it statewide. And the incursions will increase exponentially over time.
We need to file an emergency writ with the Utah supreme court to declare that this Provo ordinance cannot be enforced until the referendum process has been concluded.
To file this correctly and professionally, we need help from one or more Utah attorneys. Preferably pro bono, but if not, to simply file an injunction, could you please do it for $5000? We started a GoFundMe to raise the money to pay for this and if that is successful, we will attempt to raise more money should we decide to take this further.
Below is more detailed analysis...
REFERENDUM POWERS ARE CLEAR
The Utah Constitution gives voters the right to put ANY county or city ordinance up for a vote of the People via referendum. It also requires that this referendum process be concluded BEFORE any local ordinance takes effect:
"The legal voters of any county, city, or town, in the numbers, under the conditions, in the manner, and within the time provided by statute, may... 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. - Art. VI, Sec. 1(2)(b)
City attorney Brian Jones, responded saying "The full Article Vl Sec and subsections should be used. UMF is leaving out important words including 'as provided by statute.' It has been suggested that it is a violation of the Utah Constitution for a local law (in this case the Provo face-covering ordinance) to go into effect while opponents to that law seek to have it referred to the voters. The language of the state Constitution instead states that voters may require any local law to be submitted to the voters, 'as provided by statute, before the law or ordinance may take effect.' According to Utah Code Section 20A-7-601(5)(b), part of the statute governing referenda that is specifically authorized by the Constitution, when a referendum petition has been declared sufficient, that is the point at which the law does not take effect. That statute does not conflict with the Constitution because the Constitution specifically delegates authority over referenda procedures to the Legislature and, according to that procedure, the petition sponsors have not successfully required that the law be submitted to the voters until the petition and the gathered signatures have been declared sufficient."
In response to Jones' argument, we assert that the statute doesn't trump the constitution. When there is a conflict, the constitution prevails. Conflicts with legislature recently changed (2019) UCA 20a-7-601(6) to declare that only the referendum election, if successful, can REPEAL a law or ordinance:
"If the referendum passes, the local law that was challenged by the referendum is repealed as of the date of the election."
This question was definitional answered by the Utah Supreme Court in 2008 in Sevier v Hansen. The court held the statory provisions allowed are limited to time place and manner for the initiative or referendums... It does not extend beyond that. They held the statutory provision was UNCONSTITUTIONAL...¶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.
The Utah Supreme Court has written the following about the people's initiative and referenda powers in Gallivan v Walker SC 2002:
"Because the people's right to directly legislate through initiative and referenda is sacrosanct and a fundamental right, Utah courts must defend it against encroachment maintain it inviolate... ('[I]t is our solemn duty to jealously guard the precious initiative power, and to resole any reasonable doubts in favor of its exercise.')"
"...The initiative power and the citizens' right to legislature directly through the exercise of that power is a fundamental right... The legislature's purpose to unduly burden or constrict that fundamental right by making it harder to place initiatives on the ballot is not a legitimate legislative purpose. Endorsing this legislative purpose would essentially allow the legislature without limitation to restrict and circumscribe the initiative power reserved to the people, thus rendering itself the only legislative game in town. If such a legislative purpose were legitimate, the legislature would be free to completely emasculate the initiative right and confiscate to itself the bulk of, if not all, legislative power."
"...The people's sovereign legislative power [is] in both (1) a representative legislature and (2) the people of the State, in whom all political power is inherent."
"...The power of the people to legislate through initiative and referenda are coequal, coextensive, and concurrent and share 'equal dignity'."
"The people [are] a legislative body coequal in power and with superior advantages to the Legislature...."
"Other rights, even the most basic, are illusory if the right to vote is undermined."
"The initiative right encourages political dialogue and allows the general populace to have substantive and meaningful participation in enacting legislation that impacts society. It is democracy in its most direct and quintessential form...."
They later wrote in Sevier Power v Hansen 2008, which was mentioned above:
"The initiative power is, as with all other powers identified in our constitution, is a creature of the people."
They also held in Sevier Power v. Hansen that,
"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. This reservation must be read to mean any substantive topic and any legislative act."
This broad interpretation was upheld in Carter v Lehi (2012), Krejci v. Saratoga Springs (2013), and most recently in Baker v. Carlson (2018).
The legislature sets the conditions, manner, and time of the referendum process. That's it. Again from Gallivan v Walker:
"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. 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."
And again, in Vega v. Jordan Valley Medical Center 2019, the Utah Supreme Court quoted the Arizona Supreme Court in Whitney v. Bolin:
"[W]here the constitution expressly provides the manner of doing a thing, it impliedly forbids it being done in a substantially different manner."
ENTER THE LEGISLATURE
The legislature recently changed UCA 20a-7-601(6) to declare that only the referendum election, if successful, can REPEAL a law or ordinance:
"If the referendum passes, the local law that was challenged by the referendum is repealed as of the date of the election."
ENTER PROVO CITY
Provo citizens just filed a referendum on their new mandatory mask ordinance:
August 25th 2020 Council Meeting with ordinance 2020-118: https://documents.provo.org/OnBaseAgendaOnline/Documents/ViewDocument/Council_Meeting_1971_Agenda_Packet_8_25_2020_5_30_00_PM.pdf?meetingId=1971&documentType=AgendaPacket&itemId=0&publishId=0&isSection=false
August 27th 2020 Council meeting veto override ordinance 2020-120: https://documents.provo.org/OnBaseAgendaOnline/Documents/ViewDocument/Council_Meeting_1972_Agenda_Packet_8_27_2020_6_00_00_PM.pdf?meetingId=1972&documentType=AgendaPacket&itemId=0&publishId=0&isSection=false
Published on Provo City's Website as Ordinance 2020-36 Updated August 27th (20-118): http://www.provocitycouncil.com/2020/08/provos-covid-19-mask-ordinance.html?m=1&fbclid=IwAR1-ZhcJhFqCRGM2P7HQ_-4B0zhCWA1Ygqr8Wv8FTjyGRCMNuV4msS0osko
Provo City responded by saying they will attempt to enforce this ordinance before the referendum process is concluded. In their work meeting two days ago, 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.
The press also reported the following:
Twitter:
@BenWinslow
·
6h
Here's the tricky part:
@provocity
interprets the statute to say the mask mandate IS in effect NOW. This group? Says it's on-hold pending their referendum application
@BenWinslow
An important UPDATE to this.
@provocity
tells me if their application for a referendum goes forward and gets the required signatures, "Utahns for Medical Freedom" would get on the 2021 ballot. Well after the original ordinance expires:
"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
The issue is simple: is the statute controlling, or is the constitutional language controlling?
IF UNCHALLENGED, LOCAL REFERENDUMS WILL BE EFFECTIVELY NEUTERED
Citizens recently filed a similar referendum in Salt Lake County. See their filings at https://accountabilityutah.org/IssuesAlerts/News/2020/SL-County-Council-Referendum/
Like Provo City, other counties and cities are passing "temporary" ordinances that expire prior to the reasonable conclusion of any referendum process. They will simply pass new "temporary" ordinances in the same manner. This will effectively neuter the people's right to challenge any local ordinance via a referendum, because they will never be able to challenge it in time to stop it.
Provo City is the lynch pin. If they get away with flagrantly violating the Utah Constitution to enforce this ordinance, the same abuses will happen statewide. And the incursions will increase exponentially over time.
Please email us at [email protected] if you would like to help us. More information can also be found on our website https://utahnsformedicalfreedom.weebly.com/
Thank you for your time and help preserving our freedom in Provo!
