Brown v. Cox

This opinion is subject to revision before final

publication in the Pacific Reporter

2017 UT 3

IN THE

SUPREME COURT OF THE STATE OF UTAH

MELVIN R. BROWN,

Petitioner,

v.

SPENCER COX,

Utah Lieutenant Governor, et al. 1,

Respondents.

No. 20160669

Filed January 11, 2017

On Direct Appeal

Attorneys:

Duane L. Ostler, Keven J. Stratton, Scott O. Stratton, Orem,

for petitioner

Sean D. Reyes, Att’y Gen., Thom D. Roberts, Asst. Att’y Gen.,

Stanford E. Purser, Deputy Solic. Gen., Salt Lake City,

for respondent Spencer Cox

Robert K. Hilder, David L. Thomas, Jami R. Brackin, Coalville,

for respondent Kent Jones

David R. Irvine, Janet I. Jenson, Salt Lake City,

for respondent Logan Wilde

JUSTICE PEARCE authored the opinion of the Court in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,

JUSTICE DURHAM, and JUSTICE HIMONAS joined.

JUSTICE PEARCE, opinion of the Court:

_____________________________________________________________

1Other respondents are UTAH STATE BOARD OF CANVASSERS;

JOANN EVAN, Duchesne County Clerk; STACY NETZ CLARK, Morgan

County Clerk; BECKY PEART, Rich County Clerk; KENT JONES, Summit

County Clerk, LOGAN WILDE, and JOHN DOES 1–10.

BROWN v. COX

Opinion of the Court

INTRODUCTION

¶1 Petitioner Melvin Brown lost his Republican Primary election

for the Utah House of Representatives by nine votes. He challenges

that result under Utah’s election contest statute, Utah Code section

20A-4-403(2). Brown argues that he would have prevailed if a

number of disqualified ballots had been counted. Brown filed a

verified complaint in this court under Utah Code section 20A-4-

403(2). Utah Code section 20A-4-403(2)(a) instructs a registered voter

to file a petition in the district court where the petitioner resides if

the election involves voters from a single county and to file in the

Utah Supreme Court when the voter contests a multi-county

election.

¶2 We hold that Utah Code section 20A-4-403(2)(a)(ii), which

purports to provide this court with original jurisdiction over multi-

county election contests, is an unconstitutional expansion of this

court’s original jurisdiction.

BACKGROUND

¶3 The primary election for Utah House District 53 was held on

June 28, 2016. District 53 includes the north of Duchesne County and

all of Daggett, Morgan, Rich, and Summit Counties. Approximately

95 percent of voters cast their ballots by mail. Because the difference

between votes cast for Logan Wilde and votes cast for Brown

equaled less than 0.25 percent of the total number of votes cast for all

candidates, the county clerks recounted the ballots. See UTAH CODE

§ 20A-4-401(1)(a). Election officials disqualified thirty-two ballots

under Utah Code section 20A-3-302(5) because the signatures on the

ballots did not match the voters’ signatures maintained on file.

Election officers rejected another seventy ballots because the ballots

had not been postmarked or “otherwise clearly marked by the post

office as received by the post office before election day,” as Utah

Code section 20A-3-306(2)(b) mandates. Brown requested that the

Lieutenant Governor recount the ballots in accordance with Utah

Code section 20A-4-401(1).

¶4 With respect to the thirty-two ballots disqualified for

unverified signatures, Brown asked the Lieutenant Governor to

verify that election officials followed the process Utah Code section

20A-3-302(5)(b) requires: to “immediately contact the voter to verify

the signature” before disqualification. With respect to the seventy

ballots postmarked on election day, Brown asserted that although

many rural voters placed their ballots in the mail on the day before

the election, their ballots were not postmarked until the day of the

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Opinion of the Court

election. After investigation, the Lieutenant Governor expressed

sympathy to Brown but concluded that the statute did not allow the

contested votes to count. Following an official canvass, the

Lieutenant Governor certified Wilde as the winner of the primary

election by nine votes.

¶5 On August 12, 2016, Brown filed a verified complaint in this

court contesting the results of the primary election under Utah Code

section 20A-4-403(2). Brown names as respondents the Lieutenant

Governor, the Utah State Board of Canvassers, the county clerks of

the affected counties, and government official “John Does 1–10 . . .

who are or may be responsible for multi-county elections in the State

of Utah.” 2 The Complaint raises two causes of action that track the

two issues Brown raised in his letter to the Lieutenant Governor.

First, Brown asks us to “open the ballots” and to obtain “further

evidence . . . from the 70 voters as to when and where they mailed

their ballots.” Brown argues that those seventy voters substantially

complied with the election statute by placing their ballots in the mail

prior to election day and should not be disenfranchised by having

their votes disqualified. He further contends that if we determine

that Brown received at least ten additional votes, we should issue a

Writ of Mandamus to respondents and order them to count the

seventy votes that were not postmarked before election day. Second,

with regard to the remaining thirty-two ballots disqualified for

unverified voter signatures, Brown hypothesizes that respondents

“may not have fully complied” with statutory requirements laid out

in Utah Code section 20A-3-302(5) because respondents “may not

have individually contacted the voters . . . to verify the signature as

required by . . . statute.” With regard to his second cause of action,

Brown requests that this court issue a Writ of Mandamus directing

respondents to recognize all ballots that were improperly

disqualified.

¶6 This court held a scheduling conference on August 23, 2016.

We invited the parties to brief whether Utah Code section 20A-4-

403(2)(a)(ii) unconstitutionally expanded this court’s jurisdiction. 3

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2The Verified Complaint initially did not name Logan Wilde as a

respondent as required by Utah Code section 20A-4-403(2)(b)(vi).

Brown later added Wilde by stipulation.

3We have noted that this court may raise jurisdictional issues sua

sponte and that “acquiescence of the parties is insufficient to confer

(continued . . .)

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Opinion of the Court

Both Brown and the Lieutenant Governor argue that Utah’s Election

Code is entitled to a strong presumption of constitutionality. Brown

argues that the jurisdiction conferred by section 20A-4-403(2)(a) is

constitutional because “it does nothing more than specify Supreme

Court jurisdiction in multi-county elections . . . for pursuit of an

extraordinary writ in an election contest.” Furthermore, Brown

argues that we cannot limit the Legislature’s power to expand this

court’s jurisdiction.

¶7 The Lieutenant Governor suggests that we interpret the

Verified Complaint as a petition for extraordinary writ. The

Lieutenant Governor argues that, though the requirements found in

section 20A-4-403(2)(a)(ii) do not overlap precisely with the court

rules that govern petitions for extraordinary writ, we should hold

that the statute “fill[s] the gaps” in our rules of procedure for special

statutory proceedings such as election contests.

¶8 Wilde disagrees with Brown and the Lieutenant Governor.

Wilde argues that the election contest statute is an unconstitutional

expansion of this court’s original jurisdiction. Wilde identifies two

problems this court would face if the statute conferred jurisdiction:

(1) the Utah Supreme Court would be required to act as a finder of

fact and (2) the floodgates of litigation would be opened by forcing

this court to address every disputed election in multi-county

legislative districts.

¶9 On August 26, 2016, we issued a per curiam order holding

Utah Code section 20A-4-403(2)(a)(ii) unconstitutional. We

recognized that the Legislature cannot expand this court’s

constitutionally established original jurisdiction. We also rejected the

invitation to interpret the Election Code as an amendment to the

Utah Rules of Appellate Procedure. The order provided that we

would interpret Brown’s original Complaint as a petition for

extraordinary writ but noted technical deficiencies with that

pleading. We thus afforded Brown the opportunity to amend his

Complaint and set a briefing schedule to permit the matter to be

briefed, heard, and decided before the deadline for printing ballots

for the general election passed. Rather than amend, Brown moved to

dismiss his Complaint.

_____________________________________________________________

jurisdiction on the court.” A.J. Mackay Co. v. Okland Constr. Co., 817

P.2d 323, 325 (Utah 1991).

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Opinion of the Court

¶10 We issue this opinion to more fully explain the basis for the

August 26 order holding section 20A-4-403(2)(a)(ii) of Utah’s

Election Code unconstitutional.

STANDARD OF REVIEW

¶11 Whether a statute is constitutional presents a question of

law. See State v. Drej, 2010 UT 35, ¶ 9, 233 P.3d 476. We presume the

statute is constitutional, and we “resolve any reasonable doubts in

favor of constitutionality.” Id. (citation omitted).

ANALYSIS

I. The Utah Supreme Court Lacks Jurisdiction to Hear

Brown’s Verified Complaint as an Original Proceeding

¶12 Utah Code section 20A-4-403(2)(a) provides that “[i]n

contesting the results of a primary election, . . . a registered voter

shall contest the right of any person declared nominated to any office

by filing a verified written complaint . . . with . . . the Utah Supreme

Court, if he is contesting a nomination made by voters in more than

one county.” This section of the Election Code requires a registered

voter to file a complaint directly with the Utah Supreme Court to

challenge a multi-county primary election. In other words, this

section purports to extend this court’s original jurisdiction to include

multi-county election contests.

¶13 Brown encourages us to take “a liberal view of the

Legislature’s power to grant Supreme Court jurisdiction” and cites

State v. Taylor for support. 664 P.2d 439 (Utah 1983). In Taylor, this

court affirmed that “the Legislature clearly has the power to create

appellate jurisdiction beyond that granted in the Constitution, so

long as the statutory grant does not run afoul of any specific

constitutional limitation.” Id. at 442. We disagree with Brown’s

assertion that there are “many similarities” between Taylor and the

present case. In Taylor, this court analyzed the Legislature’s authority

to create appellate jurisdiction. The Utah Constitution provides that

this court possesses “appellate jurisdiction over . . . matters to be

exercised as provided by statute.” UTAH CONST. art. VIII, § 3. But the

Utah Constitution does not grant the Legislature authority to alter

our original jurisdiction. 4 See id.

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4 The court in Taylor focused on the application of article VIII,

section 9 of the Utah Constitution as it existed in 1983. Taylor, 664

P.2d at 440–41. The 1984 amendments to the Judicial Article of the

(continued . . .)

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Opinion of the Court

¶14 Article VIII, section 3 provides this court with original

jurisdiction “to issue all extraordinary writs and to answer questions

of state law certified by a court of the United States.” The Legislature

can neither increase nor decrease this court’s constitutionally derived

powers. In State ex rel. Robinson v. Durand, we reasoned that because

the Utah Constitution conferred upon the Utah Supreme Court

original jurisdiction over petitions of extraordinary writ, it was not

“within the province of the Legislature to so modify and enlarge the

office of the writ.” 104 P. 760, 762 (Utah 1908). The court noted “[i]t

must . . . be conceded that whatever power was conferred upon the

courts by the Constitution cannot be enlarged or abridged by the

Legislature.” 5 Id. at 762–63; see also Petersen v. Utah Bd. of Pardons, 907

P.2d 1148, 1152 (Utah 1995) (“Because this Court’s writ powers are

derived from the constitution, the Legislature cannot diminish them.

As early as 1908, it was established that the Legislature had no

power to restrict the writ powers.”). Therefore, Utah Code section

20A-4-403(2)(a)(ii) cannot extend the original jurisdiction of this

court to adjudicate multi-county election disputes, and we strike that

provision of the elections code as unconstitutional.

II. Section 20A-4-403(2)(a)(ii) Does Not Amend

the Utah Rules of Appellate Procedure

¶15 The Lieutenant Governor and Brown argue that we can

interpret the statute in a fashion that avoids the constitutional issue.

And they correctly note that we will endeavor to avoid constitutional

issues by construing “a statute as constitutional wherever possible,

resolving any reasonable doubt in favor of constitutionality.” Due

South, Inc. v. Dep’t of Alcoholic Beverage Control, 2008 UT 71, ¶ 39, 197

P.3d 82.

¶16 Brown and the Lieutenant Governor contend that we can

dodge the constitutional concerns if we read the Election Code’s

requirements as refinements to the Utah Rules of Appellate and Civil

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Utah Constitution eliminated the language on which the 1983 Taylor

court relied. Compare UTAH CONST. of 1983, art. VIII, with UTAH

CONST. art. VIII.

5 The Utah Supreme Court may exercise appellate jurisdiction

“over all other matters to be exercised as provided by statute, and

[has] power to issue all writs and orders necessary for the exercise of

the Supreme Court’s jurisdiction or the complete determination of

any cause.” UTAH CONST. art. VIII, § 3.

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Procedure, which govern petitions for extraordinary relief. The

Lieutenant Governor and Brown posit that Utah Code section 20A-4-

403(2)(a)(ii) merely provides special statutory procedures for a party

seeking a writ in an election dispute. 6 But that interpretation

substitutes one constitutional problem for another.

¶17 Article VIII, section 4 of the Utah Constitution compels this

court to “adopt rules of procedure and evidence to be used in the

courts of the state” and to “manage the appellate process.” The

Constitution gives the Legislature power to “amend the Rules of

Procedure and Evidence adopted by the Supreme Court,” but the

Legislature may do so only “upon a vote of two-thirds of all

members of both houses of the Legislature.” UTAH CONST. art. VIII,

§ 4. 7 By the constitution’s plain language, the Legislature does not

adopt rules of procedure and evidence; it amends the rules the

supreme court creates. In our system of checks and balances, the

check on our authority to enact rules of evidence and procedure is

the Legislature’s ability to amend them by supermajority.8

_____________________________________________________________

6 As support, respondents cite Maxfield v. Herbert, in which this

court held that the rules of procedure function to “occupy[] any gaps

in special procedures prescribed by statute” unless the statutory

procedures “clearly counter and thus override our generally

applicable rules.” 2012 UT 44, ¶ 17, 284 P.3d 647. In Maxfield, this

court did not “reach the question of the viability of the procedural

provisions of the election code . . . given that the constitutional

question ha[d] not been briefed.” Id. ¶ 15. In the present case, the

parties have briefed, and we will address, the constitutional

question.

7 Article VIII, section 4 possesses an interesting structure. Its first

sentence references three sets of rules that the Supreme Court shall

adopt: “rules of procedure and evidence” and rules that “manage the

appellate process.” The second sentence references two sets of rules

that the “Legislature may amend”: “the Rules of Procedure and

Evidence.” We need not address the meaning, if any, of the

Constitution’s omission of rules that “manage the appellate process”

from the second sentence to decide this matter.

8 Article VIII, section 4 is a relatively recent addition to our

constitution aimed at better defining which branch of government

possessed the authority to enact rules of procedure and evidence.

Before 1943, the Utah Supreme Court enacted procedural rules, but

(continued . . .)

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Opinion of the Court

¶18 We have suggested that article VIII, section 4 requires the

Legislature to amend our rules by a joint resolution. Although Allred

v. Saunders did not require this court to opine on whether the

constitution requires a joint resolution, we acknowledged that the

district court had concluded that a statute protecting medical peer-

review and care-review documents from discovery and rendering

them inadmissible was “inoperative because it had been adopted by

the Legislature in an unconstitutional manner.” 2014 UT 43, ¶ 3, 342

P.3d 204. We noted that “[w]hile the Legislature has the

constitutional authority to amend the Rules of Procedure and

Evidence adopted by the Utah Supreme Court, it may only do so by

joint resolution adopted” by a two-thirds vote of all the members of

each house of the Legislature. Id. ¶ 3 n.2; see also State v. Walker, 2015

UT App 213, ¶ 15, 358 P.3d 1120 (Although a section of the Utah

Code “was adopted by a two-thirds majority, ‘it constitutes an

amendment to a statute, not an amendment to a rule of procedure

adopted by the Supreme Court.’” (citing Allred, 2014 UT 43, ¶ 3 n.2)). In

State v. Larsen, this court observed in dicta that “article VIII, section 4

[of the Utah Constitution] requires any legislation which amends a

_____________________________________________________________

the Legislature could supersede those rules by statute. Injured

Workers Ass’n of Utah v. State, 2016 UT 21, ¶ 24, 374 P.3d 14 (citing

Kent R. Hart, Note, Court Rulemaking in Utah Following the 1985

Revision of the Utah Constitution, 1992 UTAH L. REV. 153, 154 (1992)).

Between 1943 and 1951, the Legislature shifted primary procedural

rule-making authority to the Utah Supreme Court “by providing

that ‘all laws in conflict [with court rules] . . . shall be of no further

force and effect.’” Hart, supra, at 157 (alterations in original) (citing

Act of Mar. 6, 1943, ch. 33, 1943 Utah Laws 33 (repealed by Act of

Mar. 8, 1951, ch. 58, 1951 Utah Laws 150, 247)). By 1951, the

Legislature “expanded the supreme court’s rule-making

responsibilities to encompass evidentiary as well as procedural

rules.” Id. at 154. In 1983, we reasoned that procedural rulemaking

was “the exclusive prerogative of this [c]ourt.” Brickyard

Homeowners’ Ass’n Mgmt. Comm. v. Gibbons Realty Co., 668 P.2d 535,

539 (Utah 1983) (citation omitted). While the 1984 amendment to

article VIII, section 4 of the Utah Constitution tempered our holding

in Brickyard by preserving legislative power to “amend” certain court

rules, the amendment solidified our constitutional authority to adopt

rules of evidence and procedure. UTAH CONST. art. VIII, § 4; see State

v. Drej, 2010 UT 35, ¶ 26 n.4, 233 P.3d 476.

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court rule to comply with the same legislative joint rules and practice

governing amendments to statutes, that is, to refer to the rule

specifically by number and indicate how it is to be amended.” 850

P.2d 1264, 1267 (Utah 1993).

¶19 The Legislature appears to read the constitutional

requirement in the same fashion. Joint Rule 4-1-301(4) provides that

“joint resolution[s] proposing to amend the Utah Supreme Court’s

Rules of Procedure or Rules of Evidence” must include the following

resolving clause: “Be it resolved by the Legislature of the state of

Utah, with at least two-thirds of all members elected to each of the

two houses concurring . . . .” Thus, the Legislature’s joint rules not

only require passage of a joint resolution but also require a resolving

clause that clearly indicates an intent to amend.

¶20 We recognize that the Utah Constitution does not explicitly

specify that the Legislature amend our rules by joint resolution when

it requires “a vote of two-thirds of all members of both houses of the

Legislature.” UTAH CONST. art. VIII, § 4. There may be other

procedural mechanisms by which the Legislature might amend the

rules of procedure and evidence. But each of those mechanisms

would need to contain a reference to the rule to be amended and a

clear expression of the Legislature’s intent to modify our rules. This

conclusion flows from both the constitutional language and the

structure of our constitutional system.

¶21 The Utah Constitution vests the Utah Supreme Court with

the obligation and authority to “adopt” rules of procedure, evidence,

and the rules that manage the appellate process. UTAH CONST. art.

VIII, § 4. In this context, adopt takes its well-understood meaning of

“to accept formally and put into effect.” Adopt, MERRIAM-WEBSTER

ONLINE, https://www.merriam-webster.com/dictionary/adopt (last

visited Dec. 5, 2016). The constitution permits the Legislature to

“amend” those rules. UTAH CONST. art. VIII, § 4. And again, amend

takes its common meaning of to “change or modify.” Amend,

MERRIAM-WEBSTER ONLINE, https://www.merriam-

webster.com/dictionary/amend (last visited Dec. 5, 2016). By

distinguishing between adoption and amendment, the Constitution

assigns this court the responsibility to put rules into effect and

allows the Legislature to modify them by supermajority.

¶22 By their nature, amendments do not occur in a vacuum but

require reference to the text that is to be amended, a principle both

this court and the Legislature recognize. Legislative rules dictate that

when a bill proposes to amend a statute, “all of the language to be

repealed must appear between brackets with the letters struck

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Opinion of the Court

through” and “all of the new language proposed to be enacted by

the bill must be underlined.” Joint Rule 4-1-201(3). In similar fashion,

rule 11-102 of the Supreme Court Rules of Professional Practice

provides that to change a rule, a petitioner “should set forth the

proposed rule, amendment, or instruction, or the text of the rule or

instruction proposed for repeal.” Thus, to amend a rule of procedure

or evidence, the Legislature must reference the rule or rules it seeks

to amend.

¶23 Moreover, in our system of constitutional checks and

balances, the exercise of a check involves a constitutionally

authorized intrusion into the power of a coequal branch of

government. Such an intrusion occurs when the Governor vetoes a

bill (see UTAH CONST. art. VII, § 8) or when this court declares a

statute unconstitutional (see UTAH CONST. art. VIII, § 2). Each of those

checks requires a clear expression of the exercise of constitutional

authority. For example, the Governor must return a vetoed bill to the

house from which it originated with a statement of his or her

objections. See UTAH CONST. art. VII, § 8. When we declare a statute

unconstitutional, we do so in a written opinion that expresses the

reasons for our decision. And when the Legislature intends to

modify a rule of evidence or procedure, it must make its intent clear.

We will not assume that the Legislature intended to exercise its

check on our authority to enact rules just because a statutory

amendment passed by a supermajority can be interpreted in a

fashion that conflicts with an existing rule of evidence or procedure.

In other words, because it involves one branch exercising its

constitutional authority to check the power of a coequal branch of

government, we will not impute to the Legislature the intent to

amend our rules without a clear indication that the Legislature in

fact intended to amend our rules. The Legislature can signal its

intent effectively through—as the legislative rules recognize—a joint

resolution that identifies a specific rule to be amended.

¶24 Because the Legislature passed section 20A-4-403(2)(a)(ii) as

a bill amending a statute and not a joint resolution amending a rule

of procedure, we cannot interpret it, as the Lieutenant Governor

urges, as an expression of legislative intent to modify our rules.

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III. Brown’s Verified Complaint Could Be Treated

as a Petition for Extraordinary Writ, but It Suffers

from Pleading Deficiencies that Need to Be Cured

by Amendment

¶25 Brown urges us to treat his Verified Complaint as a petition

for extraordinary writ. And, indeed, we have the discretion to

consider a pleading filed with us as a petition for extraordinary writ.

See Renn v. Utah State Bd. of Pardons, 904 P.2d 677, 682 & n.3 (Utah

1995) (finding that requesting extraordinary relief does not require a

particular, specialized pleading). We have previously considered

pleadings as petitions for extraordinary writ in election cases. In

Gallivan v. Walker, the proponents of an initiative petition sought an

extraordinary writ in accordance with the Election Code. 2002 UT 73,

¶ 1, 54 P.3d 1066. Though this court held that the Election Code

“[did] not confer jurisdiction over the questions raised in [the]

petition, we . . . determined to treat the petition as one for an

extraordinary writ pursuant to article VIII, section 3 of the Utah

Constitution.” Id. ¶ 4. In Gallivan, we noted that “the exigencies

dictated by timing in an election-related case [may] permit the

determination of a constitutional question in an extraordinary writ

proceeding.” Id. We further reasoned that even if alternative legal

remedies may have theoretically existed, if we did not consider the

pleading as an extraordinary writ, those remedies may not be

“adequate to respond to the relief sought.” Id.

¶26 Brown’s Verified Complaint presented time-sensitive issues

similar to those in Gallivan where this court determined that time

constraints in an election-related case favored an extraordinary writ

proceeding. The Verified Complaint, filed on August 12, 2016,

requested that the court expedite proceedings in order to identify the

party nominee by August 30, 2016. As in Gallivan, we acknowledge

that even if alternative legal remedies exist, those remedies may not

be adequate to grant the relief sought as a practical matter. Our

August 26 order noted our discretion, but explained that we would

not exercise that discretion in this instance because the only ground

for jurisdiction Brown had pleaded was the unconstitutional Utah

Code section 20A-4-403(2)(a)(ii). We also recognized that the petition

suffered from a number of other pleading deficiencies. That order

also stated that we would treat an amended pleading that cured

those deficiencies as a petition for extraordinary writ.

¶27 Subsection (b) of rule 19 of the Utah Rules of Appellate

Procedure lists requirements for petitions for extraordinary writ.

Brown’s Verified Complaint, as submitted, does not meet all the

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requirements rule 19 sets forth. For instance, the Verified Complaint

does not contain “a statement explaining why it is impractical or

inappropriate to file the petition for a writ in the district court.”

UTAH R. APP. P. 19(b)(5).

¶28 Requiring Brown to explain why he could not seek his writ

in district court in the first instance is more than an exercise in

ensuring he incanted magic words. To provide Brown the relief he

seeks, this court would need to sort out factual questions. As a

general rule, we are not well equipped to tackle that type of

question. We have stated, “[w]hen an appellate court considers a

petition for extraordinary relief without any record generated by

prior litigation or other official proceedings, it ordinarily may grant

relief only if that relief is based on allegations properly supported by

affidavit or other reliable documentation.” Gricius v. Cox, 2015 UT 86,

¶ 5, 365 P.3d 1198 (per curiam). We are reluctant “to arrive at a legal

ruling that is dependent on the resolution of disputed facts” because

we “do[] not conduct evidentiary hearings (except in those rare

circumstances in which reference to a special master is deemed

appropriate).” Carpenter v. Riverton City, 2004 UT 68, ¶ 4, 103 P.3d

127 (per curiam).

¶29 The allegations within the first cause of action of the Verified

Complaint would require this court to determine issues of fact. The

Complaint alleges that many of the seventy disqualified votes came

from counties where the U.S. Postal Service retrieves mail from

mailboxes one day but does not postmark them until the next day.

The Complaint states that “it is by far most probable that the 70

voters mailed their ballots in their respective counties of residence

on the day before the election.” In support of these allegations, the

Complaint refers to communications with “many” of the seventy

individuals who assert they placed their ballots in the mail before

election day. Assuming that we were to accept Brown’s legal theory,

we would have to adjudicate which, if any, of the seventy ballots

postmarked on election day were actually mailed before the day of

the election. Additionally, Brown states that he personally verified

that the U.S. Postal Service often postmarked letters the day after the

letters entered the mail by mailing to himself letters from a number

of relevant counties. In case we require further evidence, Brown’s

Complaint invites us to “obtain and open the ballots . . . and

thereafter make a request . . . requiring that further evidence be

obtained privately from the 70 voters as to when and where they

mailed their ballots.”

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¶30 The allegations contained in the Verified Complaint were

not supported by affidavit or other reliable documentation. Based

only on the anecdotal evidence provided in the Complaint, we

cannot find that disqualification of the seventy ballots was

inappropriate. Even if we were to give the cited evidence full weight,

we could not admit all seventy ballots because it is still unclear what

fraction had actually been mailed before election day. To resolve this

issue, Brown urges this court to open an inquiry to determine where

and when voters mailed their ballots. This is precisely the type of

factual finding we typically reserve for the district courts because

they are in a better position to do so. And while we may undertake

such an endeavor in the appropriate case, a petitioner needs to

explain to us in her petition why we, and not a district court, should

resolve those issues. Brown’s Verified Complaint did not address

this concern and therefore could not meet his burden of convincing

us that it was impractical or impossible to file in the district court.

We offered Brown the opportunity to amend his pleading to meet

that burden. Alternatively, he could have re-filed in district court. 9

Instead of availing himself of either of those options, Brown moved

to dismiss his Verified Complaint.

CONCLUSION

¶31 We hold that Utah Code section 20A-4-403(2)(a)(ii), which

purports to provide this court with original jurisdiction over multi-

county election contests, is unconstitutional. We reaffirm that the

Legislature must clearly express its intent to amend our rules of

procedure and evidence, and that a joint resolution specifically

aimed at a rule of evidence or procedure is an effective mechanism

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9 We can certainly understand that when time is of the essence,

there may be some desire for a party to start in the Utah Supreme

Court. The impulse might be especially strong when that party

believes that this court will eventually be called upon to resolve the

question. And, as referenced above, there may be occasions when it

is appropriate to proceed in that manner. But when the question

presented involves fact finding on contested facts, a party should

assume that it will be better served to first seek a writ in a district

court equipped to resolve factual questions with an eye toward

asking this court for expedited review on a developed record.

Should a party wish to depart from that blueprint, she should be

prepared to explain to this court why it needs to resolve the dispute

in the first instance.

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for the Legislature to express that intent. Finally, though we were

willing to consider an amended pleading as a petition for

extraordinary writ, Brown did not avail himself of the opportunity to

amend the pleading to conform to the Rules of Appellate Procedure.

We therefore dismiss Brown’s Verified Complaint.

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