AMERICAN  CIVIL  LIBERTIES  UNION  OF  UTAH  FOUNDATION,  INC  

355  NORTH  300  WEST,  SALT  LAKE  CITY,  UT  84103  
(801)  521-­‐9862  PHONE  –  (801)  532-­‐2850  FAX  
ACLU@ACLUUTAH.ORG  -­‐  WWW.ACLUUTAH.ORG  

March 21, 2011

BY FACSIMILE (801.538.1121) AND HAND DELIVERY

Attorney General Mark Shurtleff
Office of the Attorney General
Utah State Capitol Complex
350 North State Street, Suite 230
Salt Lake City, Utah 84114-2320

Re: Legal Action on Behalf of Sponsors of the Referendum to Repeal HB 477;

Intent to Challenge SB 165 Ban on Collection of Electronic Signatures

Dear General Shurtleff:

The American Civil Liberties Union of Utah Foundation, Inc. (“ACLU of Utah”)
represents certain sponsors (“Sponsors”) of the referendum to repeal HB 477 (“HB 477
Referendum”) and the initiative to repeal SB 165 (“SB 165 Initiative”). To the extent that notice
is required by Utah Rule of Civil Procedure 65B(c)(1) or 24(d), the ACLU of Utah, in
cooperation with the law firms Parr Brown Gee & Loveless (“Parr Brown”) and Manning Curtis
Bradshaw & Bednar (“MCBB”), hereby provides you with notice of our intent to challenge the
constitutionality of SB 165 to the extent that it purports categorically to invalidate signatures
collected electronically in support of the HB 477 Referendum.

Even before its passage by the Legislature on March 7, 2011, and Governor Herbert’s
near-immediate signature on March 8, 2011, HB 477 has been universally reviled by citizens,
public advocacy organizations, the media, and politicians alike. The outcry against HB 477—
which amended Utah’s public records law, colloquially known as “GRAMA,” to eviscerate the
democratic principle of open government and the public’s right to participate therein—was so
swift, and so significant, that the HB 477 Referendum effort has already generated broad support
throughout the State and across the political spectrum. The Sponsors are in the process of
collecting the approximately 100,000 signatures necessary to submit the HB 477 Referendum to
the full electorate as soon as possible.

Given the concurrent passage by the Legislature of SB 165, which was also signed by
Governor Herbert on March 10, the Lieutenant Governor’s Office notified the Sponsors that it
would not accept signatures collected electronically in support of the HB 477 Referendum. We
believe the provisions in SB 165 that purport to establish a blanket ban on the collection and use
of signatures gathered electronically in support of referenda and initiatives, including the HB 477

 
  

Referendum, violate the state and federal constitutions, as well as the long-standing decisional
law of the Utah Supreme Court.

We are aware that the Governor may call a special session to address the deficiencies in
HB 477. We note, however, that the Governor’s statement this morning committed only to
calling a special session at some unspecified future date. He did not assure the public that HB
477 would be repealed, and there is no clear indication that the special session—whenever it
occurs—would result in a full repeal of HB 477 rather than an attempt to amend and salvage a
law that is, frankly, unsalvageable. In addition, Senator Waddoups’ comments today that the
Senate would not act to repeal HB 477 until May or June are unacceptable in light of the
impending deadlines for the HB 477 Referendum.

Absent assurances that the special session will be commenced to repeal HB 477 as soon
as legally possible, prior to any further discussions or negotiations regarding the amendment of
GRAMA, the ACLU of Utah will have no choice but to commence its action later this week.
Given that the Sponsors have only a few weeks in which to collect signatures in support of the
HB 477 Referendum, we intend to petition the Utah Supreme Court for an Extraordinary Writ
declaring portions of SB 165 unconstitutional and permitting the Sponsors to collect signatures
electronically as well as on paper. If we do not hear otherwise from you by 5:00 p.m. tomorrow,
May 22, 2011, we will assume that your office will not be seeking an Extraordinary Writ under
Rule 65B seeking the same relief.

If you have any questions, I can be reached at 801.521.9862 ext. 108 or by e-mail at
dgoddard@acluutah.org.

Very truly yours,

/s

Darcy M. Goddard
Legal Director
ACLU of Utah

cc: Governor Gary R. Herbert (by facsimile, 801.538.1528)

David C. Reymann, Parr Brown Gee & Loveless (by e-mail, dreymann@parrbrown.com)
Chad R. Derum, Manning Curtis Bradshaw & Bednar (by e-mail, cderum@mc2b.com)

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