Is the County about to violate Utah law by proceeding with having the Basin Recreation Bond on this year’s ballot? Utah Statute UCA §11‐14‐202(1)(a) states that in any election where there is a bond on the ballot, that notice of the election has to be made to the public 21 days before election date. This formal notice has to be made in both the Park Record and on the Utah Public Notice website. Notice was made to public, in both of these, on October 20. That is only 15 days before the election. Therefore, to hold the Bond Election would violate Utah law.
The Snyderville Basin Special Recreation District, the organization proposing the bond, asked the County Attorney for legal counsel on the issue. The memorandum from the County Attorney, Dave Thomas, confirms that the required notice was not given and then tries to find legal precedent to determine whether violating the statute has invalidated elections in the past. He finds:
- A case from 1908 where polling locations were not listed in an election notice. The Supreme Court of Utah found that when “polling places were not listed in the election notice was insufficient justification for voiding the bond election.”
- A Washington State case from 1967 where a notice of an election about annexation was given a few days late. The court found that they had substantially met the need to notice the election.
- An Iowa case from 1952 where the notice of election wasn’t published for a long enough time. The court said that if someone brought an action before the election then they would have held that the notice length per statute was mandatory and they would have not met this requirement (thus probably invalidating the election) but if it’s brought afterwards then substantial compliance would be assumed because people showed up at the polls.
While it’s clear Mr Thomas is an attorney (and a pretty good one from what we have seen) and we are not attorneys, we do have some questions about these precedents, since none are apple-to-apple comparisons:
- On State v Utah, it appears this issues comes down to whether providing notice is merely suggested or is mandatory. If we are going back to 1900 anyhow … the State Attorney General at that time seemed to think election notices are mandatory. Who knows which turn of the century edict matters more but this issue really seems to be at the crux of the issue.
- On the the Washington State Case we researched the issue and it appears the court stated “We have consistently held that, unless the statute which prescribes the form and manner of publishing election notices, expressly provides that non-compliance with the statute will render the election void, it is regarded as declaratory rather than mandatory.” Does Utah have the same stance that unless the statute specifically says that non-compliance renders the election void, that the election will be validated?
- On the Iowa case, does this also cut the other way where a court may find that Summit County knew it was violating the statute but went ahead anyhow and thus the bond election should be invalidated?
The County Attorney’s opinion was balanced as expected. “In conclusion, my legal analysis shows that there are rational legal arguments (“Substantial Compliance”) consistent with Utah law that sustain an election where the Notice of Election is published late. However, there are no Utah cases on point which specifically address tardy legal notices.” So, it appears the legal opinion is that there may be general case law that supports trying to move forward with the bond, even given the statute. However, to an outsider it seems like the law is the law.
The Basin Special Recreation District has recommended continuing to move forward when they wrote, “Snyderville Basin Special Recreation District recommends to the County Council in advance of this final Public Hearing for the bond, that it continue to support and recommend the bond proposition.”
So, what’s the big deal? There are a number of issues, the first being fairness. As an analog, the Park Rag neglected to pay its Summit County Property tax on time this year. We forgot that we had to file an exemption to pay no taxes (we have less than $10,000 in assets). So, when we found out we missed the exemption window we paid our $50 of taxes and our $25 late fee. Should we have been able to claim the rule that required an exemption to be filed by May 31 was merely a suggestion and not mandatory? Should we be able to claim that having to pay nothing was substantively correct so we shouldn’t have to pay anything? For normal people that’s how your assets end up being sold on the steps of the County Courthouse. Shouldn’t Summit County hold itself to the same standards that it holds its citizens to?
Secondly, they are playing with fire. This is a mid-term election that will likely have low voter turnout. When someone loses by 50 votes, they may go quietly into the night or they may sue to invalidate the election. The County is hoping that doesn’t happen. As an old acquaintance of ours once said, “Hope is not a strategy”. [Update: People have pointed out that it may be unlikely that an entire election would be in jeopardy and be required to be repeated because of this, but an argument may be able to be made that lack of notice about the bond, it lowered turnout, thus impacting the election. We are not lawyers, so we could be clueless on that. We do concede this is a large leap to take.]
Finally, there are people in Summit County with enough time, enough money, and enough experience to make this an issue if they want. Don’t discount the possibility of legal action being brought just because they can and just because they have had a beef in the past. Usually lawsuits with the county are fairly self-contained between the county and a developer (for instance). In this case, the election outcome for at least the bond will hang in the balance. It will be news and will not be flattering.
Where does that leave us? All parties agree that Summit County didn’t create an election notice on time. This violates Utah statute, if they proceed with the bond on the ballot. The County Attorney cites precedent from 1908, 1952, and 1967… only one case being in Utah. The precedent is used to contend that they may only need to substantively meet the requirement of notifying the population of the election and that if notifying the public isn’t mandatory then there may be no issue. So, Basin Rec has recommended moving forward with the bond. Now the County Council has the opportunity, on Wednesday, to void the bond or let it proceed ahead.
If the council voids the bond, the election goes ahead without anything hanging over it. If they don’t, then they rely on hope. A betting man would give 10 to 1 odds they’ll vote for “hope” because it’s less messy right now… but we’ll see. That’s why they play the game.
Update: There may be another area, somewhat ancillary to this, that is running afoul of state statute. We’ll try to report more on that later if we have time.