Full Opinion (html_with_citations)
2022 UT 41


                                IN THE

       SUPREME COURT OF THE STATE OF UTAH

            UTAH DEMOCRATIC PARTY and JOSHUA HARDY,
                          Petitioners,
                                   v.
          DEIDRE M. HENDERSON, in her Official Capacity as
                  Lieutenant Governor of Utah, and
    JOEL FERRY, individually and in his Official Capacity as acting
       director of the Utah Department of Natural Resources,
                             Respondents.

                             No. 20220826
                       Filed December 15, 2022

On Motion for Emergency Relief and Petition for Extraordinary Writ

                              Attorneys:
           David P. Billings, Salt Lake City, for petitioners
Stanford E. Purser, Dep. Solic. Gen., Peggy E. Stone, Asst. Solic. Gen.,
    Scott Cheney, Jason Dupree, Asst. Atty‟s Gen., Salt Lake City,
                for respondent Deidre M. Henderson
   Sean D. Reyes, Att‟y Gen., Andrew Dymek, Erin T. Middleton,
       Stephen W. Geary, Sarah Goldberg, Asst. Solics. Gen.,
             Salt Lake City, for respondent Joel Ferry


   PER CURIAM:
    ¶ 1 This case arises from a motion for emergency relief and a
petition for extraordinary writ. We previously denied the motion in
an order issued on September 22, 2022, and indicated we would
issue a subsequent opinion. We now set forth the basis for the denial
of the motion and we deny the petition for extraordinary writ for the
same reason.
                          BACKGROUND
    ¶ 2 On February 28, 2022, Joel Ferry, an incumbent member of
the Utah Legislature, filed a declaration of candidacy for re-election
to his seat for District 1 of the Utah House of Representatives. Joshua
Hardy submitted a declaration of candidacy for the same seat. The
Lieutenant Governor‟s Office accepted those declarations. Mr. Ferry
               UTAH DEMOCRATIC PARTY v. HENDERSON
                             Per Curiam

was subsequently selected to represent the Utah Republican Party as
its candidate for House District 1, and Mr. Hardy was selected to
represent the Utah Democratic Party (UDP) as its candidate for the
same seat.
   ¶ 3 On June 24, 2022, Governor Spencer Cox appointed Mr. Ferry
as the Director of the Department of Natural Resources (DNR),
which is a position that requires the approval of the Utah Senate.
Shortly thereafter, Mr. Ferry began serving as the acting director of
the DNR pending approval of his appointment.1
    ¶ 4 On August 17, two weeks before the deadline for the
Lieutenant Governor to certify candidates for ballots for the
November 2022 general election, the UDP and Mr. Hardy sent a
letter to the Lieutenant Governor, Deidre Henderson, and the
Director of Elections, Ryan Cowley. That letter raised concerns about
Mr. Ferry holding his House seat while he worked for the DNR. It
also claimed Mr. Ferry‟s acceptance of an appointment to an
executive branch office disqualified him from serving in the
Legislature or being a candidate in the upcoming general election,
and it requested that his name be removed from the ballot.
    ¶ 5 On August 24, Lieutenant Governor Henderson replied.
With regard to Mr. Ferry‟s circumstances, she “ma[de] no conclusion
regarding the constitutionality of his status as a legislator or as
acting director of the Utah Department of Natural Resources.”2 And
as to the upcoming election, she reasoned “[his] status as a current or
former legislator d[id] not affect his status as a candidate and d[id]
not require . . . [his] remov[al] . . . from the November ballot.”
Lieutenant Governor Henderson recited several statutory grounds
for forfeiture of a position on the ballot, including death, resignation
as a consequence of disability or a decision to run for the presidency
or vice presidency of the United States as referenced in section 20A-
1-501 of the Utah Code, failure to file a financial statement or report
required by section 20A-11-305, or voluntary withdrawal as
contemplated by subsection 20A-9-202(6). She then stated that, “[i]n
the absence of any of [those specified] circumstances, there [was] no
_____________________________________________________________
   1 It appears Mr. Ferry was confirmed as Director on September
21, 2022.
   2 Shortly thereafter, Mr. Ferry resigned his seat in the Legislature,
but he did not withdraw his name as a candidate for the 2022 general
election.


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                          Cite as:
2022 UT 41
                             Per Curiam

statutory basis on which [she could] affirmatively disqualify a
candidate.”
    ¶ 6 On August 31, the Lieutenant Governor‟s Office certified to
the county clerks the names of the candidates for elected offices,
including Mr. Ferry‟s name. See UTAH CODE § 20A-9-701. Following
an unsuccessful attempt to raise state law claims in federal court,3
the UDP and Mr. Hardy filed this petition for extraordinary writ on
Friday September 16, 2022. They simultaneously filed a motion for
emergency relief.
    ¶ 7 The petitioners stated their claims for relief in varying terms,
but they fundamentally sought an order compelling the Lieutenant
Governor to remove Mr. Ferry from the ballot.4 The petition stated:
“The case must be resolved before overseas ballots are sent on
September 23.”5 See
52 U.S.C. § 20302
(a)(8)(A). On September 21,
Lieutenant Governor Henderson and Mr. Ferry filed responses to the
motion for emergency relief. On September 22, we issued an order
summarily denying the motion for emergency relief and indicating
this opinion would follow. On September 27, Lieutenant Governor
Henderson and Mr. Ferry filed separate responses to the petition for
extraordinary writ.




_____________________________________________________________
   3   The federal district court declined to exercise supplemental
jurisdiction over the state law claims and denied a motion for a
preliminary injunction in relation to certain federal law claims. It
appears those federal law claims were still pending in the federal
action when the petition and motion raising state law claims were
filed with us.
   4 The petitioners also requested an award of attorney fees and
costs pursuant to Utah Code section 78B-6-609. That request is
denied.
   5 Another portion of the petition treats the deadline as September
24. The federal statute,
52 U.S.C. § 20302
(8)(A), requires mailing at
least 45 days before the general election. This year, that deadline fell
on Saturday, September 24; and state election officials treated it as
occurring on the immediately preceding business day, or September
23. Regardless of which date constituted the deadline, our analysis of
the motion and the petition is the same.


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               UTAH DEMOCRATIC PARTY v. HENDERSON
                               Per Curiam

                               ANALYSIS
   ¶ 8 We now explain the reason for our denial of the motion for
emergency relief. And we rely on the same reason for denying the
petition for extraordinary writ.
   ¶ 9 A motion for emergency relief under rule 23C of the Rules of
Appellate Procedure “should not incorporate requests for relief that
require something less than emergency treatment.” Snow, Christensen
& Martineau v. Lindberg,
2009 UT 72, ¶ 7
,
222 P.3d 1141
 (per curiam)
(addressing predecessor provision located in Rule 8A). In this case,
the petition‟s statement that the “[t]he case must be resolved before
overseas ballots are sent on September 23” made clear that the
motion and the petition sought the same relief, consisting of an
emergency order mandating a ballot change prior to the deadline
imposed by federal law for mailing ballots to eligible voters residing
outside the United States.6
    ¶ 10 A petitioner requesting an extraordinary writ also “must
demonstrate that the court should exercise its discretion to grant
relief.” Gilbert v. Maughan,
2016 UT 31
, ¶ 18 n.7,
379 P.3d 1263
 (citing
State v Barrett,
2005 UT 88, ¶ 24
,
127 P.3d 682
). And a petitioner
claiming that an exercise of the court‟s discretion is warranted
likewise must demonstrate the timeliness of the petition and the
availability of the relief requested. See, e.g., Krejci v. City of Saratoga
Springs,
2013 UT 74, ¶ 10
,
322 P.3d 662
 (explaining that rule 19 of the
Rules of Appellate Procedure does not supply “a remedy for self-
imposed emergencies”); Gricius v. Cox,
2015 UT 86, ¶ 5
,
365 P.3d 1198
(per curiam) (“[A]n appellate court . . . ordinarily may grant
[extraordinary] relief [in the first instance] only if that relief is based
on allegations properly supported by affidavit or other reliable
documentation.”); cf. Snow, Christensen & Martineau,
2009 UT 72
, ¶ 7
n.2 (explaining that emergency relief is not warranted where the
“„emergency‟ has arisen from petitioners‟ own unjustified delay in
seeking relief”).


_____________________________________________________________
   6 The petitioners raised no claim in the petition or motion that
Mr. Ferry was not qualified for legislative office at the time he filed
his declaration of candidacy. Rather, they maintained that he became
unqualified as soon as he was appointed as Director of the DNR and
that he did not intend to assume the legislative office for which he
was running.


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                         Cite as:
2022 UT 41
                             Per Curiam

    ¶ 11 In this case, Mr. Ferry‟s appointment as Director of the
DNR was announced on June 24, and the UDP and Mr. Hardy did
not ask the Lieutenant Governor to remove Mr. Ferry from the ballot
until August 17. They then filed their petition with us on September
16, only one week before the mailing deadline referenced in that
petition. Moreover, neither the petition nor the motion supplied a
factual basis for us to assume that a change to the ballot prior to the
mailing deadline would be available as of the date the petition and
motion were filed, let alone within the much shorter period of time
that would remain after the respondents were afforded their right to
adequate notice and an opportunity to respond. The response to the
motion for emergency relief was not due until September 21.7 And
the response to the petition was not due until September 28, well
after the mailing deadline. If anything, the documentation
accompanying the petition and motion strongly suggested that there
would not be time to alter the ballots before the mailing deadline
even if the court ruled immediately after the response to the motion
was filed.8 Because the motion and petition failed to demonstrate
that the relief the petitioners requested was timely sought and
available, we decline to exercise our discretion to grant the motion
on an emergency basis. For the same reason, we decline to exercise
our discretion to grant the petition.




_____________________________________________________________
   7 To afford respondents due process, rule 23C specifies a period
of three business days after service of the motion to file responses to
a motion for emergency relief. See UTAH R. APP. P. 23C(d). In this
case, the deadline for response was September 21.
   8 The petition included an affidavit submitted by Mr. Cowley in
the federal court action. That affidavit detailed the processes for
third-party vendors to prepare and print ballots, asserted changes to
the ballot generally must be submitted prior to the certification
deadline, and claimed uncertainty as to whether any changes could
be made before the petition and motion were filed with us.


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