                  This opinion is subject to revision before
                    publication in the Pacific Reporter
                               2013 UT 57
                                       




                                  IN THE
      SUPREME COURT OF THE STATE OF UTAH

                 WAYNE BURR; ELAINE ANDELIN;
                    and PETER ANDERSON,
                         Petitioners,
                                     v.
                             CITY OF OREM,
                              Respondent.

                            No. 20120982
                        Filed August 30, 2013

     Wayne Burr, Elaine Andelin, Peter L. Anderson, Orem,
                        for petitioners
          Greg W. Stephens, Heather J. Schriever, Orem,
                        for respondent

  ASSOCIATE CHIEF JUSTICE NEHRING authored the opinion of the
   Court, in which CHIEF JUSTICE DURRANT, JUSTICE DURHAM,
            JUSTICE PARRISH, and JUSTICE LEE joined.


     ASSOCIATE CHIEF JUSTICE NEHRING, opinion of the Court:

                         INTRODUCTION
     ¶ 1 Via a referendum petition, Petitioners obtained sufficient
signatures to challenge a proposed tax increase approved by the
Orem City Council in Resolution 2012-0014. The measure will
now go before the voters of Orem City in the November 2013
election. Petitioners challenge the Orem City Attorney’s proposed
language that will appear as the referendum ballot title. We
disagree with Petitioners’ objections to the wording of the ballot
title, having found that the drafter did not abuse his discretion.
                          BACKGROUND
   ¶ 2 On May 8, 2012, the Orem City Council received the
tentative budget for fiscal year 2012–13. At that same meeting, the
City Manager “recommended [that] the City Council consider a
property tax increase for operations” in order to meet the revenue
                          BURR v. OREM CITY
                       Opinion of the Court
                                  
necessary for the proposed budget. According to the City Council
meeting minutes, the proposed budget “was formulated with
[national and local economies] in mind [and] it recognizes . . . the
continued pressure of the UTOPIA debt guarantee obligation
combined with the rising costs of operational expenditures.”
    ¶ 3 UTOPIA is a city-owned telecommunications network
that is building a wholesale fiber-optic network that offers users
access to high-speed video, data, and phone services. Eleven Utah
cities are members of UTOPIA, and each city has pledged a
portion of its sales tax revenue as security guarantee for the
UTOPIA bond obligation. UTOPIA has not achieved its projected
goals and now finds itself in a weak financial position. As a result
of the security guarantees, the member cities are obligated to pay
the deficit for UTOPIA—the UTOPIA debt guarantee obligation.
The UTOPIA debt guarantee obligation for Orem City for 2012-13
is approximately $2.8 million of the city’s $88 million budget.
    ¶ 4 Because the proposed tax increase exceeded Orem City’s
certified tax rate,1 the City Council was required to hold various
public hearings in order to adopt the tax increase, pursuant to
Utah Code section 59-2-919. According to the minutes of the
public hearings, the item to be discussed at each of the meetings
was
       Budget Issue #8 — General Fund, UTOPIA, and
       Capital Improvement Needs
             Should the City increase the certified tax rate
              sufficient to increase General Fund property tax
              revenues by $3,000,000 to address the UTOPIA
              obligation (principally) and other General Fund
              requirements as well as approximately $350,000
              for tort liabilities?
At those meetings, the City Council received input from the
public, which included significant opposition to both the tax
increase and UTOPIA generally from several Orem City residents.
                                                                         
    1  “The
          ‘certified tax rate’ means a tax rate that will provide the
same ad valorem property tax revenues for a taxing entity as were
budgeted by that taxing entity for the prior year.” UTAH CODE
§ 59-2-924(3)(a).  
 

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                             2013 UT 57
                       Opinion of the Court
 
At the public hearings, City Council members clarified to
residents that the UTOPIA debt obligation exists independent of
the tax increase, and failure to approve the tax increase would not
eliminate the financial obligation of Orem City for the UTOPIA
obligation.
    ¶ 5 Ultimately, the City Council decided to approve the tax
increase, but in an amount smaller than what was originally
proposed. On August 15, 2012, the Orem City Council passed
Resolution No. R-2012-0014 (Resolution), which served to
(1) increase Orem’s property tax revenues by $1,700,000 per year
and (2) adopt a budget for fiscal year 2012-13. Unhappy with the
property tax increase, Petitioners timely filed a Referendum
Petition Application challenging Section 1 of the Resolution
relating to the property tax rate and levy. Petitioners acquired the
required number of signatures for the Referendum Petition, and
on October 18, 2012, the City Recorder declared the Referendum
Petition to be sufficient to go to a vote pursuant to Utah Code
section 20A-7-607(2)(b). On November 2, 2012, the City Attorney
filed a proposed ballot title with the City Recorder pursuant to
Utah Code section 20A-7-608(2)(c) and provided notice of the
proposed ballot title to the City Council and the referendum
sponsors pursuant to Utah Code section 20A-7-608(2)(d). On
November 12, 2012, the City Attorney filed a final ballot title with
the City Recorder pursuant to Utah Code section 20A-7-608(4)(b).
Dissatisfied with the City Attorney’s chosen language, Petitioners
filed a Petition for Extraordinary Relief pursuant to Utah Code
section 20A-7-608(6), challenging the wording of the ballot title.
   ¶ 6 We have jurisdiction pursuant to Utah Code section
20A-7-608(6).2




                                                                      

    2 See Walker v. Weber Cnty., 973 P.2d 927, 928 (Utah 1998) (“That
section, which pertains to initiative measures in general,
specifically gives this court jurisdiction to review initiative ballot
titles and correct them.”).

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                        BURR v. OREM CITY
                     Opinion of the Court
                               
                   STANDARD OF REVIEW
   ¶ 7 Utah Code section 20A-7-608(6) sets forth the scope of our
review of referendum ballot titles in the face of a challenge. It
reads:
      (a) If the ballot title furnished by the local attorney
      is unsatisfactory or does not comply with the
      requirements of this section, the decision of the local
      attorney may be appealed by a petition to the
      Supreme Court that is brought by:
          (i) at least three sponsors of the referendum
          petition; or
          (ii) a majority of the local legislative body for
          the jurisdiction where the referendum petition
          was circulated.
      (b) The Supreme Court shall examine the measures
      and consider arguments, and, in its decision, may
      certify to the local clerk a ballot title for the measure
      that fulfills the intent of this section.
The operative question posed by the language of the statute is
whether the ballot title “is unsatisfactory or does not comply with
the requirements of this section.” In order to give meaning to this
standard, we look to the requirements of the section in drafting
the ballot title. Section 608(3) reads:
      (a) The ballot title may be distinct from the title of
      the law that is the subject of the petition, and shall
      express, in not exceeding 100 words, the purpose of
      the measure.
      (b) In preparing a ballot title, the local attorney
      shall, to the best of his ability, give a true and
      impartial statement of the purpose of the measure.
      (c) The ballot title may not intentionally be an
      argument, or likely to create prejudice, for or
      against the measure.




 

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                               2013 UT 57
                          Opinion of the Court
 
We had occasion to interpret this language in Stavros v. Office of
Legislative Research & General Counsel.3 Specifically, we grappled
with how to interpret language directing the drafters to use “the
best of [their] ability” in drafting and to “not intentionally” create
an argument for or against the measure.4 We held that “[t]hese
provisions . . . are not separate requirements subject to our review.
They are instructions by the legislature to [the drafters] regarding
the approach they are to take in meeting the requirements of the
law.”5 Thus, we held that our review of a ballot title challenge
encompasses three requirements: “1. that the ballot title give a
true and impartial statement of the purpose of the measure; 2. that
the ballot title not exceed 100 words in length; and 3. that the
ballot title be submitted by [the stated deadline].”6
   ¶ 8 Having defined the scope of our review, we now address
the level of deference we afford the drafter of the ballot title in
conducting our review based on these three requirements. While

                                                                       
    32000 UT 63, 15 P.3d 1013. While the statute at issue in
Stavros, Utah Code section 20A-7-209, has since been amended,
the pertinent language was identical with the exception of the
name of the drafter at the time Stavros was decided.
    4   Id. ¶¶ 8–13.
    5  Id. ¶ 13. We previously stated in dicta in Walker v. Weber
County that “under [Section 608], the capabilities and intentions
of the drafter of the ballot title are relevant to whether the result
meets the statute’s purposes.” 973 P.2d 927, 930 (Utah 1998). We
now repudiate that standard to the extent it conflicts with this
decision. However, this is not to say that these subjective
requirements are irrelevant. It is merely a recognition that
petitioners face a difficult practical problem given limited
discovery and the fact that the drafter is highly unlikely to admit
to not drafting to the best of his or her ability or to the intentional
creation of an argument. But in the event petitioners were able to
present evidence of a failure to meet these subjective directives,
such evidence would certainly be relevant in reviewing a ballot
title to determine whether the drafters abused their discretion. See
Stavros, 2000 UT 63, ¶ 14.
    6   Stavros, 2000 UT 63, ¶ 12.

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                           BURR v. OREM CITY
                       Opinion of the Court
                                   
we have never explicitly stated how much deference we accord
the drafters of ballot titles, we have stated that “[w]e will not
tamper with the wording of ballot initiatives where there is no
compelling reason to do so.”7 We now take the opportunity to
explain our deferential standard of review.
    ¶ 9 To begin with, we note that this review is unique in that
we are not presented with a typical decision to review from a
lower court or an agency. Instead, our job is to review the original
writings of the City Attorney for statutory compliance. In
creating the ballot title, the statute gives broad instructions as to
content, requiring only that the product be “a true and impartial
statement of the purpose of the measure” and not be an argument
for or against the measure.8 As a result, the City Attorney is
allotted a wide range of permissible terminology and has broad
discretion in his choice of wording. Indeed, there are numerous
satisfactory alternatives from which the City Attorney must have
chosen in arriving at the final product in this case. In deciding
among the various alternatives, the City Attorney must draw on
his experience, expertise, and familiarity with the measure. In
reviewing the City Attorney’s final product, it is not our task to
determine whether he has chosen the best possible wording, but
only whether the chosen wording meets the requirements of the
statute. In other words, we may not substitute our “editorial
judgment” for that of the drafter.9 Therefore, we hold that in the
creation of ballot titles, the drafter is entitled to considerable
deference, and we will apply an abuse of discretion standard in
conducting our review.10



                                                                     
    7Kendell v. N. Ogden City (In re N. Ogden Ballot Title), 2003 UT
42, ¶ 2, 84 P.3d 1134.
    8 UTAH    CODE § 20A-7-608(3). 
    9   Stavros, 2000 UT 63, ¶ 22.
    10 This standard of review applies only to ballot title statutes
that do not otherwise set forth their own standard of review. See,
e.g., UTAH CODE § 20A-7-209(4)(b)(i) (“There is a presumption that
the ballot title prepared by the Office of Legislative Research and
 

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                                                            2013 UT 57
                                                 Opinion of the Court
 
        ¶ 10 In contrast to the deference we afford to the content of the
    title, we owe no deference to the timing and word limit
    requirements of the statute as there is no discretion or expertise
    necessary to fulfilling those requirements.
                                                           ANALYSIS
   ¶ 11 The parties agree that the timing and word limit
requirements were both met in this case. It is solely the content of
the proposed title that is the subject of our review.
    ¶ 12 The City Attorney drafted the following language for the
referendum ballot title:
              On August 15, 2012, the Orem City Council passed
              Resolution No. R-2012-0014, which adopted a budget
              for fiscal year 2012-13 and adjusted Orem’s property
              tax to raise an additional $1,700,000 per year for
              municipal operations. The Orem property tax on a
              $187,000 residence would change from $192 to $242,
              which is $50 per year. The Orem property tax on a
              $187,000 business would change from $350 to $440,
              which is $90 per year. The property tax adjustment
              will take effect only if approved by voters.
              Are you for or against the property tax adjustment
              taking effect?11
                                    For       G                                      Against             G
    ¶ 13 Petitioners assert three challenges to use of this language:
(1) the language fails to give a true and impartial statement of the
purpose of the measure by failing to mention UTOPIA, (2) the title
creates an argument for the measure by minimizing the perceived
burden on businesses, and (3) the wording is otherwise
“unsatisfactory” in that it seeks to hide from the voters the causal
connection between the UTOPIA bond obligation and the
requested tax rate increase. We address each challenge in turn.
                                                                                                                                                 
General Counsel is an impartial summary of the contents of the
initiative.”).
      As requested by the City Attorney, and not objected to by
       11

the Petitioners, we have incorporated the 2013 property tax rate
and valuation figures, which were previously unavailable at the
time of drafting.

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                           BURR v. OREM CITY
                         Opinion of the Court
                                   
               I. THE PROPOSED BALLOT TITLE IS A TRUE
                  AND IMPARTIAL STATEMENT OF THE
                  PURPOSE OF THE MEASURE ABSENT
                        MENTION OF UTOPIA
    ¶ 14 As a preliminary matter, we note that, given the
100-word limit imposed by the statute, it will oftentimes be
difficult to prepare a ballot title that contains much detail,
particularly in the case of lengthy measures. But voters need not
rely solely on the ballot title in making their voting decision. “[I]n
exercising the vital opportunity to vote on the adoption of the
measure, voters will [also] be aided by the information included
in the Voter Information Pamphlet . . . , the text of the [measure]
itself, and the ebb and flow of public debate and media
coverage.”12 Therefore, while the ballot title will rarely contain
detail regarding every component of the measure, it must “direct
the voter to the main and dominant purpose of the measure.”13
   ¶ 15 In deciding whether the proposed ballot title presents a
true and impartial statement of the purpose of the Resolution, we
must first ascertain the purpose of the measure, here Section 1 of
the Resolution. To do so, we look first to the language of the
Resolution:
          Section 1. Property Tax Rate and Levy
          1. For the purpose of defraying the necessary and
          proper expenses of the City of Orem, and for
          maintaining the government thereof, the City Council
          hereby levies a property tax sufficient to increase City
          of Orem property tax revenues by $1,700,000 per year.
          To achieve this revenue increase, the City Council
          hereby levies a total property tax rate of 0.002414 for
          Fiscal Year 2012-2013, levied on the taxable value of
          taxable property of the City of Orem.
          2. Included in the property tax revenue increase and
          rate described above (but not in addition to said
                                                                           
    12Stavros v. Office of Legislative Research & Gen. Counsel, 2000 UT
63, ¶ 28, 15 P.3d 1013.
    13   Id.
 

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                           2013 UT 57
                      Opinion of the Court
 
      revenue increase and rate), the City Council hereby
      establishes and levies a property tax of .0001 per
      dollar of taxable value of taxable property
      (approximately $344,617 for Fiscal Year 2012-2013) for
      the purpose of (1) establishing and maintaining a
      reserve fund for the payment of claims, settlements or
      judgments, (2) defending and paying claims,
      settlements and judgments against the City,
      (3) paying insurance premiums, and (4) paying other
      expenditures as allowed by U.C.A. § 63G-7-704 and
      other applicable laws.
The stated purpose of Section 1 of the Resolution is to “defray[]
the necessary and proper expenses of the City of Orem” and to
“maintain[] the government thereof.” The stated purpose does
not mention UTOPIA, nor is UTOPIA mentioned anywhere in the
Resolution. The Orem City Attorney’s proposed language
summarizes the purpose as “for municipal operations.”
   ¶ 16 Petitioners take issue with the “for municipal
operations” language. They allege that the real purpose of the tax
increase is to pay the obligation on the UTOPIA debt guarantee.
Indeed, based on the minutes of the various public hearings held
on the matter, the City Council stated that the need for the tax
increase was a result of the UTOPIA bond obligation.
Respondents do not dispute that approximately $2.8 million of the
City of Orem’s $88 million budget will be paid toward the
UTOPIA bond obligation. But where Petitioners’ argument fails is
that they have not shown that the language “for municipal
operations” is either untrue or partial in some way. Even the
language proposed by Petitioners does not eliminate the “for
municipal operations” wording. Instead, it adds additional
language, proposing “for municipal operations and for payment
on the UTOPIA bond obligation.”
   ¶ 17 In short, Petitioners argue that their proposed language
would make the ballot title more true or more impartial. This is
precisely the kind of substitution of judgment that our deferential
standard of review does not permit.   Webster’s Dictionary defines
“operations” as “the whole process of planning for and operating




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                         BURR v. OREM CITY
                       Opinion of the Court
                                  
a business or other organized unit.”14 Given our deferential
standard of review, we see nothing untrue or partial about the
City Attorney’s summarizing the proposed tax increase’s purpose
as “for municipal operations.” Therefore, we hold that the
language “for municipal operations” satisfies the requirements of
truth and impartiality absent mention of UTOPIA.
         II. THE TITLE DOES NOT CREATE AN ARGUMENT
             IN FAVOR OF THE MEASURE BY USE OF THE
                 TRUTH-IN-TAXATION LANGUAGE15
    ¶ 18 Petitioners next argue that the City Attorney’s use of the
language mandated by the truth-in-taxation hearing creates an
argument in favor of the measure by minimizing the impact of the
proposed tax on businesses. For the purpose of our review,
Petitioners argue, in essence, that the proposed language, while
true, is not impartial. The proposed ballot language reads as
follows:
         The Orem property tax on a $187,000 residence would
         change from $192 to $242, which is $50 per year. The
         Orem property tax on a $187,000 business would
         change from $350 to $440, which is $90 per year.
Again, we find nothing untrue or partial about the proposed
wording. While the ballot title does not say from where these

                                                                    
    14 WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1581
(1961).
    15 Because the proposed tax increase exceeded Orem City’s
certified tax rate, the City Council was required to hold various
public hearings and to present the impact of the proposed tax
increase in a specific format, pursuant to Utah Code section
59-2-919. That format required the taxing entity, Orem City, to
state the impact of the tax increase on residences in a dollar
amount using the “average value of a residence in the taxing
entity” and to state the impact of the tax increase on businesses in
a dollar amount using the “value of a business having the same
value as the average value of a residence in the taxing entity.”
UTAH CODE § 59-2-919(6)(f)(i). We refer to this language as the
“truth-in-taxation” language.
 

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                            2013 UT 57
                       Opinion of the Court
 
figures originate (likely due to the word limit), $187,000 is the
average value of a residential home in Orem City in 2013. For
purposes of the truth-in-taxation hearing, the City Council was
required to use this figure as an example of the impact of the
proposed tax increase on both residences and businesses.
Nowhere does it purport to represent the average value of a
business, nor do Petitioners provide us with the data of what the
average value of a business in the City of Orem was in 2013.
What the language does is provide an “apples to apples”
comparison of the proposed increase on residences compared to
businesses, which accounts for the 45 percent exemption on the
taxation of primary residences in the state of Utah. Again, while
there are certainly multiple ways to depict the impact of the
proposed increase, our job is not to determine whether the City
Attorney utilized the best possible method of communicating the
impact and we will not substitute our editorial judgment for that
of the drafter. In sum, we conclude that the City Attorney did not
abuse his discretion by including the truth-in-taxation language in
the ballot title.
          III. THE “UNSATISFACTORY” LANGUAGE
             OF THE STATUTE DOES NOT PRESENT
                A SEPARATE BASIS FOR REVIEW
                    OF THE BALLOT TITLE
   ¶ 19 Finally, Petitioners argue that the wording is otherwise
“unsatisfactory” in that it seeks to hide from the voters the causal
connection between the UTOPIA bond obligation and the
requested tax rate increase. Petitioners take this argument from
Utah Code section 20A-7-608(6)(a), which defines our review as
whether the proposed language is “unsatisfactory or does not
comply with the requirements of this section.” Petitioners argue
that inclusion of the word “unsatisfactory” dictates a separate
standard of review, one distinct from strict compliance with the
terms of the statute. We disagree. The terms “satisfactory” and
“unsatisfactory” have no independent stand-alone requirements.
They glean their contextual meaning from specific conditions or
obligations; in this case, compliance with the terms of the statute.
Given our determination above that the failure to include
UTOPIA in the ballot title does not render the ballot title untrue or
partial, we likewise hold that the failure to include an explanation
of the causal connection between the UTOPIA bond obligation

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                        BURR v. OREM CITY
                         Opinion of the Court
                                   
and the requested tax rate increase also does not render the ballot
title untrue or partial.
                          CONCLUSION
    ¶ 20 We hold that the Orem City Attorney did not abuse his
discretion in drafting the proposed ballot title, and that the
proposed language satisfies the statutory direction that the title be
a true and impartial statement of the purpose of the measure.




 

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