S.B. 11 Enrolled

1

ELECTION OFFENSE AMENDMENTS
2 2014 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Margaret Dayton
5 House Sponsor: Brian S. King
6
7 LONG TITLE
8 General Description:
9 This bill recodifies and amends portions of Title 20A, Chapter 1, Part 7, Prosecuting
10 and Adjudicating Election Offenses.
11 Highlighted Provisions:
12 This bill:
13 . defines terms;
14 . recodifies and amends the portion of Title 20A, Chapter 1, Part 7, Prosecuting and
15 Adjudicating Election Offenses, relating to civil proceedings and investigations of
16 election offenses;
17 . establishes procedures and requirements for a registered voter to file a verified
18 petition alleging a violation of the Election Code;
19 . provides that the lieutenant governor (or another person in the event of a conflict)
20 shall review the petition to determine whether a special investigation is necessary;
21 . provides for the appointment of special counsel if a special investigation is
22 necessary;
23 . describes the duties of special counsel;
24 . provides for the filing of a civil action by special counsel;
25 . describes the remedies that a court shall order, or other action that a court shall take,
26 if a court finds that a significant violation of the Election Code occurred;
27 . provides for costs and attorney fees;
28 . provides for compensation of special counsel; and
29 . makes technical changes.

30 Money Appropriated in this Bill:
31 None
32 Other Special Clauses:
33 None
34 Utah Code Sections Affected:
35 ENACTS:
36 20A-1-801 , Utah Code Annotated 1953
37 20A-1-802 , Utah Code Annotated 1953
38 20A-1-803 , Utah Code Annotated 1953
39 20A-1-805 , Utah Code Annotated 1953
40 20A-1-806 , Utah Code Annotated 1953
41 RENUMBERS AND AMENDS:
42 20A-1-804 , (Renumbered from 20A-1-704, as enacted by Laws of Utah 1993, Chapter
43 1)
44 20A-1-807 , (Renumbered from 20A-1-706, as last amended by Laws of Utah 2013,
45 Chapter 174)
46 20A-1-808 , (Renumbered from 20A-1-707, as enacted by Laws of Utah 2013, Chapter
47 174)
48 REPEALS:
49 20A-1-703 , as last amended by Laws of Utah 2013, Chapter 174 and last amended by
50 Coordination Clause, Laws of Utah 2013, Chapter 174
51
52 Be it enacted by the Legislature of the state of Utah:
53 Section 1. Section 20A-1-801 is enacted to read:
54 Part 8. Civil Action for Election Code Violation
55 20A-1-801. Title.
56 This part is known as "Civil Action for Election Code Violation."
57 Section 2. Section 20A-1-802 is enacted to read:

58 20A-1-802. Definitions.
59 As used in this part:
60 (1) "Bad faith" means that a person files a petition described in Subsection
61 20A-1-803 (1):
62 (a) under circumstances where a reasonable person would not believe that the
63 allegations are true; or
64 (b) (i) within 60 days before an election that the candidate to which the petition relates
65 will appear on the ballot; and
66 (ii) under circumstances where a reasonable person would not believe that the
67 allegations constitute a significant violation of a provision of this title.
68 (2) "Defendant" means each person against whom an allegation is made in the verified
69 petition described in Subsection 20A-1-803 (1).
70 (3) "Receiving official" means:
71 (a) the lieutenant governor, unless the verified petition described in Section 20A-1-803
72 alleges a violation by the governor, the lieutenant governor, or an employee of the lieutenant
73 governor's office; or
74 (b) the attorney general, if the verified petition described in Section 20A-1-803 alleges
75 a violation by the governor, the lieutenant governor, or an employee of the lieutenant
76 governor's office.
77 (4) "Reviewing official" means:
78 (a) except as provided in Subsection (4)(b), the receiving official; or
79 (b) the reviewing official appointed under Subsection 20A-1-803 (3)(a), if the receiving
80 official appoints another individual as the reviewing official under Subsection
81 20A-1-803 (3)(a).
82 (5) "Significant violation" means:
83 (a) a violation that, if known by voters before the election, may have resulted in a
84 candidate, other than the candidate certified as having won the election, winning the election;
85 or

86 (b) a violation that, had the violation not occurred, may have resulted in a candidate,
87 other than the candidate certified as having won the election, winning the election.
88 Section 3. Section 20A-1-803 is enacted to read:
89 20A-1-803. Verified petition by registered voter -- Receiving and reviewing
90 official -- Special investigation -- Special counsel -- Civil action.
91 (1) A registered voter may file a verified petition alleging a violation of any provision
92 of this title, if the registered voter:
93 (a) has information relating to the alleged violation;
94 (b) the allegation is against a candidate for whom the registered voter had the right to
95 vote, a personal campaign committee of that candidate, or a member of a personal campaign
96 committee of that candidate.
97 (2) The registered voter described in Subsection (1) shall file the verified petition with
98 the receiving official.
99 (3) If the receiving official determines, in writing, that the receiving official has a
100 conflict of interest in relation to taking an action required in this part, the receiving official
101 shall:
102 (a) designate as the reviewing official an individual who does not have a conflict of
103 interest, in the following order of precedence:
104 (i) the attorney general;
105 (ii) the state auditor;
106 (iii) the state treasurer; or
107 (iv) the governor; and
108 (b) forward the petition to the reviewing official for further action.
109 (4) (a) The reviewing official shall gather information and determine whether, in the
110 discretion of the reviewing official, a special investigation is necessary.
111 (b) In making the determination described in Subsection (4)(a), the reviewing official
112 may consider the following:
113 (i) whether, based on the information available to the reviewing official, the reviewing

114 official is able to determine that a violation did not occur;
115 (ii) the seriousness of the alleged violation;
116 (iii) whether the alleged violation was intentional or accidental;
117 (iv) whether the alleged violation could be resolved informally;
118 (v) whether the petition is frivolous or filed for the purpose of harassment;
119 (vi) whether the alleged violation should be addressed in, or is being adequately
120 addressed in, another forum, including a criminal investigation or proceeding;
121 (vii) whether additional investigation, as part of a civil proceeding in relation to the
122 petition, is desirable;
123 (viii) the likelihood that an action, based on the allegations, is likely to be successful;
124 or
125 (ix) other criteria relevant to making the determination.
126 (5) If the reviewing official determines that a special investigation is necessary, the
127 reviewing official shall:
128 (a) except as provided in Subsection (5)(b), refer the information to the attorney
129 general, who shall appoint special counsel; or
130 (b) if the verified petition alleges that the attorney general violated a provision of this
131 title, or if the reviewing official determines that the Office of the Attorney General has a
132 conflict of interest in relation to the verified petition, appoint a person who is not an employee
133 of the Office of the Attorney General as special counsel, in accordance with Title 63G, Chapter
134 6a, Utah Procurement Code.
135 (6) The special counsel:
136 (a) shall review the petition and any evidence relative to determining whether a
137 defendant committed a violation of a provision of this title;
138 (b) may interview individuals or gather additional evidence relative to determining
139 whether a defendant committed a violation of a provision of this title;
140 (c) shall advise the reviewing official whether, in the opinion of the special counsel,
141 sufficient evidence exists to establish that a defendant committed a significant violation of a

142 provision of this title; and
143 (d) shall, within three days after the day on which the special counsel complies with
144 Subsection (6)(c), prepare and provide to the reviewing official a document that:
145 (i) states whether, in the opinion of the special counsel, sufficient evidence exists to
146 establish that a defendant committed at least one significant violation of a provision of this
147 title; and
148 (ii) if the special counsel is of the opinion that sufficient evidence exists to establish
149 that a defendant committed at least one significant violation of a provision of this title:
150 (A) states the name of each defendant for which, in the opinion of the special counsel,
151 sufficient evidence exists to establish that the defendant committed at least one significant
152 violation of a provision of this title;
153 (B) states each provision of this title for which, in the opinion of the special counsel,
154 sufficient evidence exists to establish that the defendant violated; and
155 (C) may not include a description of the evidence supporting the opinion of the special
156 counsel.
157 (7) The reviewing official shall:
158 (a) within three days after the day on which the reviewing official receives the
159 document described in Subsection (6)(d), post a conspicuous link to the document on the home
160 page of the reviewing official's website; and
161 (b) within seven days after the day on which the special counsel complies with
162 Subsection (6)(c):
163 (i) determine whether, in the opinion of the reviewing official, sufficient evidence
164 exists to establish that a defendant committed a significant violation of a provision of this title;
165 and
166 (ii) if the reviewing official is of the opinion that sufficient evidence exists to establish
167 that a defendant committed at least one significant violation of a provision of this title, direct
168 the special counsel to file a civil action and serve summons in accordance with the Utah Rules
169 of Civil Procedure:

170 (A) against each defendant for whom the reviewing official determines that sufficient
171 evidence exists that the defendant committed a significant violation of this title; and
172 (B) that includes each significant violation for which the reviewing official determines
173 that sufficient evidence exists.
174 (8) (a) The purpose of the civil action described in Subsection (7)(b)(ii) is to determine
175 whether a defendant committed a significant violation of a provision of this title.
176 (b) For a civil action described in Subsection (7)(b)(ii), the complaint may include an
177 allegation of any violation of a provision of this title by a defendant, regardless of whether the
178 violation is alleged in the petition.
179 (c) The special counsel may amend the complaint at any time after the complaint is
180 filed, including by adding allegations to the complaint or amending allegations already made in
181 the complaint, if the court determines that the amendment will not violate the due process
182 rights of the defendant against whom the added or amended allegation is made.
183 (9) (a) An action brought under this section shall:
184 (i) be heard without a jury, with the court determining all issues of fact and issues of
185 law; and
186 (ii) have precedence over any other civil actions.
187 (b) The court shall schedule discovery and hearings, and shall otherwise conduct
188 proceedings relating to an action brought under this section, in an expedited manner while
189 preserving the rights of the parties and the integrity of the proceedings.
190 Section 4. Section 20A-1-804 , which is renumbered from Section 20A-1-704 is
191 renumbered and amended to read:
192 [20A-1-704]. 20A-1-804. Judgment and findings -- Appeal -- Criminal
193 prosecution not affected by judgment.
194 (1) (a) [If] Except as provided in Subsection (2), if the court finds that the candidate
195 whose right to [any] office is being [investigated, or that the candidate] challenged, the
196 candidate's personal campaign committee, or [any] a member of the candidate's personal
197 campaign committee has [violated any provision of this title in the conduct of the campaign for

198 nomination or election, and if the candidate is not one mentioned in Subsection (2)] committed
199 a significant violation of any provision of this title, the judge shall enter an order:
200 (i) declaring void the election of the candidate to that office;
201 (ii) ousting and excluding the candidate from office; and
202 (iii) declaring the office vacant.
203 (b) [The] A vacancy created by [that order] an order described in Subsection (1)(a)
204 shall be filled as provided in this chapter.
205 (2) (a) [If a proceeding has been brought to investigate the right of] As it relates to a
206 candidate for either house of the Legislature, [and the] if the court finds that the candidate, the
207 candidate's personal campaign committee, or [any] a member of the candidate's personal
208 campaign committee has [violated] committed a significant violation of any provision of this
209 title [in the conduct of the campaign for nomination or election], the court shall:
210 (i) prepare and sign written findings of fact and conclusions of law relating to the
211 violation; and
212 (ii) without issuing an order, transmit those findings and conclusions to the [lieutenant
213 governor] reviewing official.
214 (b) The [lieutenant governor] reviewing official shall transmit the judge's findings and
215 conclusions to the house of the Legislature for which the person is a candidate.
216 (3) (a) A party may appeal the determination of the court in the same manner as
217 appeals may be taken in civil actions.
218 (b) A judge may not issue an injunction suspending or staying the proceeding unless:
219 (i) application is made to the court or to the presiding judge of the court;
220 (ii) all parties receive notice of the application and the time for the hearing; and
221 (iii) the judge conducts a hearing.
222 (4) Any judgment or findings and conclusions issued as provided in this section may
223 not be construed to bar or affect in any way any criminal prosecution of any candidate or other
224 person.
225 Section 5. Section 20A-1-805 is enacted to read:

226 20A-1-805. Costs and attorney fees -- Other actions or remedies not foreclosed --
227 Grant of immunity.
228 (1) If judgment is in favor of the plaintiff in a civil action brought under this part, the
229 special counsel may petition the judge to recover the reviewing official's taxable costs and
230 attorney fees against the person whose right to the office is contested.
231 (2) The judge may not award costs or attorney fees to the defendant, unless it appears
232 that the petitioner filed the petition in bad faith.
233 (3) Nothing in this section may be construed to prohibit any other civil or criminal
234 actions or remedies against alleged violators.
235 (4) In the event a witness asserts a privilege against self-incrimination, the special
236 counsel may request a person described in Subsections 77-22b-1 (1)(a)(i) through (iii) to
237 compel testimony and the production of evidence from the witness pursuant to Title 77,
238 Chapter 22b, Grants of Immunity.
239 Section 6. Section 20A-1-806 is enacted to read:
240 20A-1-806. Special counsel on appeal.
241 If either party appeals the judgment of the trial court, the reviewing official shall
242 appoint a person to appear as special counsel in the appellate court in the matter.
243 Section 7. Section 20A-1-807 , which is renumbered from Section 20A-1-706 is
244 renumbered and amended to read:
245 [20A-1-706]. 20A-1-807. Compensation of special counsel.
246 [(1) If either party appeals the judgment of the trial court, the district judge, the
247 attorney general, or the lieutenant governor who appointed special counsel for the trial court
248 shall authorize that counsel, or some other person, to appear as special counsel in the appellate
249 court in the matter.]
250 [(2) (a)] (1) The special counsel authorized by this chapter shall receive [a] reasonable
251 compensation for [his] the special counsel's services.
252 [(b)] (2) The compensation shall be audited by the [lieutenant governor] reviewing
253 official and paid out of the state treasury upon [a voucher and upon] the written statement of

254 the [officer appointing the counsel] reviewing official that:
255 [(i)] (a) the appointment has been made;
256 [(ii)] (b) the person appointed has faithfully performed the duties [imposed upon him]
257 of special counsel; and
258 [(iii) that] (c) the special counsel's bill is accurate and correct.
259 [(c)] (3) Compensation for special counsel shall be audited and paid in the same
260 manner as other claims against the state are audited and paid.
261 Section 8. Section 20A-1-808 , which is renumbered from Section 20A-1-707 is
262 renumbered and amended to read:
263 [20A-1-707]. 20A-1-808. Transition clause.
264 Any petition that is filed or pending under this part on or after March 1, 2013, shall be
265 subject to the provisions of this part, including any amendments to this part made by Senate
266 Bill 289, passed in the 2013 General Session.
267 Section 9. Repealer.
268 This bill repeals:
269 Section 20A-1-703 , Proceedings by registered voter.