Judge to settle change of government kerfuffle

By Doug McMurdo • The Times-Independent

Legislative intent is at the heart of a court matter pitting members of the Grand County Republican Party against Grand County and its governing body over Utah’s Changing Forms of Government Act.

Seventh Judicial District Judge Don Torgerson took the issue under advisement at the conclusion of a fairly lengthy hearing held Wednesday, Nov. 28, and he said he hoped to issue a ruling soon.

The Republican plaintiffs claim the Grand County Council undermined their right to control who serves on an appointment committee, whose members would name people to a study committee, which in turn would spend 2019 creating a new form of government after lawmakers determined Grand and Morgan counties’ forms of government were not compliant with state law.

The legislature set a Dec. 31, 2020 deadline to have new forms of governments approved – or not – by voters.

How did we get here?

HB 224 is the law that codified the Changing Forms of Government Act. It went into effect on March 15. That morning, Grand County Republicans Lynn Jackson, Jeramy Day, Gene Ciarus, Jerry McNeely and Manuel Torres submitted a citizens’ petition to Grand County Clerk Diana Carroll. The petition was launched to give them authority over changing the county’s form of government.

They relied on one section of the new law in filing that notice. Less than a week later, Grand County Attorney Andrew Fitzgerald and the Grand County Council discussed the law, specifically whether or not it required the county council to initiate the process or if the “Jackson Petition” precluded them from doing so.

Fitzgerald initially opined the Jackson Petition held sway, but continued to research the issue. With the aid of outside counsel, it was determined the act mandated the county council initiate the change in government – citing a different section of the same law.

On March 26, the council adopted a resolution after learning of Fitzgerald’s findings. The sponsors behind the citizens’ petition retained their own attorney, who sent a letter to the county declaring only the Republicans’ petition was valid.

The county’s outside counsel came up with a very different interpretation of the law leading up to the Nov. 6 election, in which Proposition 9 was on the ballot. It asked voters if they wanted a study committee to work on the change of government. Nearly 70 percent of voters approved the study committee. Had it failed, Grand County’s form of government would have reverted to a three-person partisan commission.

A question of interpretation

Interestingly, the attorneys – Stewart Peay for the citizen petitioners and James Ahlstrom for Grand County – agreed there were no disputes to the facts, the evidence, or even the law itself. It all boils down to what lawmakers intended when they drafted the legislation.

Peay said the law makes it clear it mandates that the first group to file a petition controls the process. Ahlstrom, citing another section of the law, said it is equally clear – in this specific case – that the county is to initiate the process. The attorneys argued more about what the law doesn’t say than what it does.

While Peay insisted the law clearly supports his clients’ position, Ahlstrom told the judge the law “expressly precludes plaintiff’s requested relief.” Earlier this month, the same men who filed the petition in March hired Peay, who filed a lawsuit against the county.

Ahlstrom said it was unlikely lawmakers intended for the act to allow, “a small partisan group of petitioners to control a Utah legislatively mandated change to a county’s form of government.”

In his opposition, Ahlstrom said Peay misinterpreted “the crucial and controlling statutory provisions” of the act, which “mandates that the legislative bodies of two counties – Grand County and Morgan County … shall initiate a process to change their form of county government.”

Peay, speaking on behalf of the citizen petitioners, characterized that wording as a “backstop” that would only come into play if citizens didn’t file a petition.

While Peay used sports analogies to support his argument that the issue boils down to a race to the courthouse, Ahlstrom said citizen petitioners shouldn’t have been allowed to file their notice at this point – although they, and any other group of citizens for that matter, could file a notice to change the form of government in two years, and every two years thereafter if they are unhappy with how county government operates.

Torgerson must determine what lawmakers intended when they wrote the law, supposedly in plain language. Any omissions were to be deemed intentional.

Also, Torgerson agreed to postpone a legislatively imposed deadline for the appointment committee to hold its first meeting within 10 days of being formed. The original deadline passed Friday, Nov. 30.