Utah high court overturns part of ballot-initiative law

By The Associated Press

08.28.02

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SALT LAKE CITY — The Utah Supreme Court has overturned a portion of the state's initiative law, saying it gave rural residents a disproportionate voice in determining what measures go on the ballot.

The 3-2 ruling Aug. 26 ordered an initiative on radioactive waste be put on the November ballot. The initiative would increase taxes on radioactive waste shipped to the state and would bar waste of greater radioactivity than currently accepted. The initiative is opposed by Envirocare, which operates the state's only radioactive waste site and which contends the higher tax could put it out of business.

Initiative supporters produced more than 91,000 validated signatures to put their proposal on the ballot, well surpassing the 76,180 required by one part of the initiative law.

They also thought they had met the second requirement: having signatures of 10% of the voters in at least 20 of the state's 29 counties. But in rural counties, Envirocare employees and other opponents went door-to-door, asking those who had signed the petitions to have their names removed. The result was the initiative failed to meet Utah's geographical and percentage requirements by a combined 147 signatures, and Lt. Gov. Olene Walker refused to put it on the ballot.

Initiative supporters then challenged the state's law, successfully arguing it gave more weight to voters in rural areas than to those in urban areas.

The court's majority ruling Aug. 26 said the provision made a Daggett County signature "1,000 times as valuable as the signature" of a Salt Lake County voter.

"The statutory scheme is discriminatory in that it essentially raises registered voters in rural communities to the level of gatekeepers who can effectively keep initiatives off the ballot despite the existence of significant numeric support for the initiative in urban portions of the state," the majority opinion said.

Attorneys representing the lieutenant governor's office argued that the purpose of the law was to make sure it didn't become too easy to clutter the ballot with questions.

"This clearly is not a legitimate legislative purpose," the court wrote. Citizens have a fundamental right to make laws through ballot initiatives, and the Legislature can't "unduly burden or constrict" that right, the court ruled.

The multi-county requirement violates both the U.S. and state constitutions, the court ruled.

Justices Richard C. Howe and Leonard H. Russon signed the majority opinion. Chief Justice Christine M. Durham concurred but said the court should confine its ruling to the Utah Constitution.

Justices Matthew B. Durrant and Michael J. Wilkins didn't participate in the case. Utah Court of Appeals Judges James Z. Davis and William A. Thorne sat in their place and wrote a dissenting opinion that said the right to establish ballot initiatives is not the same as the right to cast a vote and should be governed by different rules.

Thorne said the right to put initiatives on the ballot is not an unfettered right, and the multi-county requirement is reasonable.

"We're stunned," Envirocare spokeswoman Betty Arial said. "It's just a very, very poor way to tax, to make law."

If the initiate passes in November, the company could go out of business, she said. "It's taxing us twice what our annual revenue is."

Lisa Watts Baskin, who represented the petition supporters, said: "We're delighted that it will be on the ballot. Let's let the people decide."

It is possible the initiative could be challenged again on the argument that the initiative petition was circulated by non-Utah residents, contrary to state law. A lawsuit to that effect by six legislators and Utahns Against Unfair Taxes earlier had been dismissed by 3rd District Judge Michael Burton on the ground that the lieutenant governor's decision not to put the initiative on the ballot made it moot. However, he left open the possibility it could be reinstated if the Supreme Court ordered the initiative back on the ballot.

Hugh Matheson of Citizens Against Unfair Taxes said the group has not decided on its next course of action, but he blasted the Supreme Court's ruling as "liberal and permissive" and said, "Now the voice of rural Utah has been silenced."

Legislative General Counsel Gay Taylor predicted lawmakers would revisit the initiative law. She said the court's decision "appears to be legislating (and) that's troubling" and "It's incumbent on us to respond."

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Failed petitioners ask Utah high court for help
Organizers of drive to raise taxes on radioactive waste say rules governing ballot initiatives hurt their cause.  07.17.02