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Alta Town Council challenge leaves 3rd District judge perplexed

Voter rights » A 2010 Utah law could lead to an “invasive” process that could scrutinize medical info, tax returns and require testimony from family members.

First Published Jan 15 2013 12:50 am • Last Updated Jan 15 2013 08:22 am

A citizen challenge to Steven "Piney" Gilman’s eligibility to sit on the Alta Town Council took an unusual turn Monday when a 3rd District judge found that he was presiding over an "invasive process" that could impact individual voter rights in Utah.

Judge Keith A. Kelly said he was unclear on what a 2010 Utah law intended.

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"If any individual in the public has the right to take a voter to court that could cost thousands of dollars and intrude into the voter’s personal life, that could impact that person’s franchise [to vote]," he said. "Does the challenge allow someone to get into a voter’s medical bills, tax returns and put his wife on the [witness] stand with the intention of scrutinizing every detail of the voter’s life?"

The case is the first one to hit the courts after the Utah Legislature allowed citizens to challenge voter eligibility in court.

Alta resident Guy Jordan challenged Gilman’s Alta residency under the 2010 law. He claimed that Gilman lives in Cottonwood Heights and, therefore, cannot sit on the Town Council. As evidence, Jordan provided Gilman’s signature on a mortgage stating his primary residence was Cottonwood Heights.

But Salt Lake County Clerk Sherrie Swensen denied the challenge after Gilman provided a passport, driver license, fishing license and federal tax returns with an Alta address.

In testimony Monday, she said given a second opportunity, she would rule the same way.

In November 2010, Jordan appealed Swensen’s decision to 3rd Distict Court. Judge Tyrone Medley, who has since retired, ordered an evidentiary hearing because, he ruled, the record was incomplete.

In Monday’s hearing, Jordan’s attorney, Vicki Farrar, introduced other evidence that included vehicle registrations, retirement accounts, property tax receipts and insurance policies giving Cottonwood Heights as Gilman’s home address.

A New Hampshire native, Gilman moved to Alta in 1979 and lived there until 2003 when he bought a house in Cottonwood Heights, according to courtroom testimony. Gilman freely admits that his wife and children live there and that he sleeps there most nights.

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His attorney, Paul Moxley, told the court that Gilman spends almost all of his waking hours in Alta. As director of the ski patrol, Gilman holds one of the most important jobs at Alta and the community holds him in high esteem, Moxley said.

"Mr. Gilman’s life is in the Alta community," Moxley said.

But Farrar argued that under Utah law, that is irrelevant.

"Utah law makes no exception for resort towns or small towns," she said. "Or to nonresidents who are liked or revered in the community."

But the judge said he was "wrestling with" Medley’s decision to allow an evidentiary hearing that went well beyond the administrative decision by Swensen to deny Jordan’s challenge.

"I’m very concerned about whether this proceeding today can be considered anything but a de novo review and constitute pressure on the right to vote," he said. (A de novo review is a new process, rather than an appeal of a previous process.) "If the Legislature had intended a de novo review, it would have said de novo review."

Kelly has taken the matter under advisement. A date for a ruling has not been set.


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