HB 224: Judge rules in Grand County’s favor
by Doug McMurdo
The Times-Independent
Feb 07, 2019 | 2558 views | 0 0 comments | 48 48 recommendations | email to a friend | print

State change of government laws say what they mean and mean what they say, according to Seventh District Judge Don Torgerson, who on Friday, Feb. 1 issued a ruling that gives the Grand County Council control over the process that would lead to a new form of government.

In other words, Grand County will choose members to serve on a committee that will study the pending change instead of a group of partisan citizens who took the county to court after voters overwhelmingly approved Proposition 9 in the 2018 midterm election.

“The court concludes that only the Grand County Council may initiate the process to change the county’s government from its current noncompliant form,” wrote Torgerson in his order, adding that the study committee voters approved in the Nov. 6 election must be formed according to specific Utah code.

Nearly a year ago the Utah Legislature approved House Bill 224, which required Grand and Morgan counties to change their respective forms of government after determining they were noncompliant with state law. The same mid-March day Gov. Gary Herbert signed it into law, prominent members of the local Republican Party filed a signature petition at the Grand County Clerk’s office that called for them to collect enough voter signatures to be given control of the process.

But Torgerson ruled the men and their lawyer placed their faith in one clause of the change of government law that dealt with changing government forms that already comply with state laws. Grand County and its attorneys identified the appropriate clause when a change of government is mandated due to being decreed noncompliant.

Torgerson in his ruling focused on the question of statutory interpretation between the two clauses in an effort to determine “the true intent and purpose of the legislature.” He noted the best evidence of that intent is the “plain language of the statute itself.”

Council member Curtis Wells, unbeknownst to his colleagues, lobbied lawmakers to rule Grand County’s 7-member nonpartisan form of government out of compliance with state laws, and when he did, lawmakers added language to the law that ultimately allowed Grand County to prevail in court.

“But the 2018 amendments implemented a significant change that applies only to county governments currently operating under a noncompliant form of government,” wrote Torgerson. “And it is apparent that the legislature intended the process to be different for the first change from a noncompliant to a compliant form.” In other words, the legislature created an “entirely new subsection” of the law that clearly gives control of the process to counties rather than a partisan group of citizens.

Grand County Council Administrator Ruth Dillon in an email sent to several officials on Friday, Feb. 1, noted the process is to first name people to an appointment council, who would then appoint members – potentially themselves – to the study committee. The state mandate for the five-person appointment council in naming the study committee, is to “work to achieve a broadly representative membership” of voters who do “not hold any public office or employment other than membership on the appointment council.”

For Council member Mary McGann, who was named as a defendant along with the county due to her status as chair at the time the lawsuit was filed, it’s time to get down to business.

“Having my name on the lawsuit made it quite personal, thus I’ve been anxiously awaiting the ruling and was relieved when it finally arrived,” said McGann. “The amount of money spent on this lawsuit by citizens and the county was a shame. I am not a lawyer, yet after numerous readings of HB 224, it was obvious, even to me, that in a nonconforming county the legislative body was required to lead the process. 

“The lawsuit was unnecessary and expensive,” she continued. “The money could have been spent in so many positive ways. My hope is that both sides of the political spectrum can now come together, put the citizens of this Grand County in the forefront; create a balanced study committee that will develop a thoughtful, open process, which will result in a recommendation for the voters that the vast majority of the citizens can support.”

Former Council member Lynn Jackson was one of five local Republicans who were plaintiffs in the case and he was gracious in comments regarding the judge’s ruling – but he also said the group is looking at options. “It wasn’t the decision we were hoping for,” he said. “But it’s too early to tell where we go from here. We’re talking to legal counsel and discussing our options.”

Jackson said litigation costs money and the decision not to pursue more of it would allow him and others who backed the citizens group to “look forward to this county moving forward. Our goal all along was to help participate with developing a better form of government. Twenty-six years in and at the end of the day we want a more efficient and streamlined government. It was never our intention to destroy Grand County’s government. We live here, too.”

Jackson also shared McGann’s hope that a study committee is formed that represents the county as a whole. “It was never our intention to load up the committee with conservatives,” he said. “We know conservatives don’t make up the majority of the county. We’re pretty balanced here and our goals are the same. We all want the best government we can get.”

Councilman Wells also sees the glass as half full, insofar as moving forward with a change in form of government goes.

“While I was disappointed to see the ruling allow for the county government to trample on the original citizen petition, the ruling on the appointment council provides a steady path forward and a return to a commission form of government,” said Wells.

The appointment council already has two of its five members: Former National Parks Superintendent Walt Dabney, whom the Grand County Council selected, and former Grand County Council Member Rex Tanner, who was the choice of Grand County’s representatives in the Utah Legislature. As to a 2018 citizen petition group that named Kya Marienfeld as a third member, Torgerson ruled that neither citizen petition applied to nonconforming counties. According to Dillon, Dabney and Tanner must unanimously choose the three members. If they can’t see eye to eye on one or more of them, the task will fall on state Reps. Christine Watkins and Carl Albrecht, and state Sen. David Hinkins.

Dillon said the law requires the appointment council’s first meeting to be held no later than Monday, Feb. 11. The rest of the appointment council must be named within10 days of the first meeting. State law then requires the study committee appointments to be named within 30 days. Once members of the seven-person study committee are selected, they will work on Grand County’s next form of government, which must be a partisan commission with executive and legislative powers or a partisan council with legislative powers only. That is, the next form must be one of the four legal forms of government: county commission, expanded county commission, county executive-council, or council-manager.

The number of commissioners or council members it will have and what type of role a county manager might play, if any, are among the issues up for debate.

Voters will ultimately decide the form of government. The deadline to get in compliance with state law is Dec. 31, 2020.

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