This opinion is subject to revision before final
publication in the Pacific Reporter
2024 UT 18
IN THE
SUPREME COURT OF THE STATE OF UTAH
BRENT GORDON,
Appellant,
v.
JACKIE NOSTROM and HERRIMAN CITY,
Appellees.
No. 20230187
Heard November 8, 2023
Filed June 27, 2024
On Direct Appeal
Third District, Salt Lake County
The Honorable Todd M. Shaughnessy
No. 220907849
Attorneys:
Brent Gordon, Boise, Idaho, pro se appellant,
Matthew D. Church, Taylor P. Kordsiemon, Salt Lake City,
Todd R. Sheeran, Herriman, for appellees
JUSTICE HAGEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE PEARCE,
JUSTICE PETERSEN, and JUSTICE POHLMAN joined.
JUSTICE HAGEN, opinion of the Court:
INTRODUCTION
¶1 Brent Gordon believes that Herriman City has a policy in
place that violates his right to inspect records under the Utah
Government Records Access and Management Act (GRAMA). But
instead of appealing Herriman’s denial of a records request, he
sued for an injunction that would prospectively require Herriman
to allow him to inspect any public record free of charge. The district
GORDON v. NOSTROM
Opinion of the Court
court dismissed Gordon’s case because it concluded that he needed
to submit a formal records request and exhaust his administrative
remedies before bringing suit.
¶2 Gordon asserts the district court erred because the Utah
Code creates a right of action to enjoin a governmental entity from
violating or proposing to violate GRAMA. But the code section
Gordon relies on merely lists the remedies available for a GRAMA
violation; it does not create a right of action. Because Gordon is not
within the class of persons authorized by the legislature to sue for
violations of GRAMA, we hold that the district court correctly
dismissed his suit.
BACKGROUND
¶3 On December 26, 2022, when Herriman City Hall was
closed for the Christmas holiday, Gordon emailed Herriman’s city
attorney and announced he would be at the city offices the
following morning to inspect “documents related to the West
Traverse Sentinel Landscape Act and the Army Compatible Use
Buffer Program.” Citing his “right under state law to inspect
records during business hours,” Gordon advised the city attorney
that he intended “to search through records to confirm the amount
of money the city received through the Program, all
communications and documents regarding the selection of
properties purchased by the city, all documents that relate to
restrictions on the use of the property, and any documents that
identify the individuals that the city worked with at the state and
Camp Williams.” Because of the broad nature of the request, the
city attorney responded that it would take some time to locate
records responsive to Gordon’s request and to segregate any nonpublic information.
¶4 The city recorder sent Gordon a follow-up email two days
later, indicating that Herriman was treating Gordon’s December
26th email as a GRAMA request. The city recorder advised Gordon
that Herriman was entitled to ten business days to respond to the
request but would try to make the records available more quickly.
The email indicated that Utah law allowed Herriman to charge
Gordon for “the cost of staff time for search, retrieval, and other
direct administrative costs for complying with [the] request.” The
city recorder estimated it would “take approximately five (5) hours
to compile the information sought and would cost approximately
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Opinion of the Court
$250.” (Citing UTAH CODE § 63G-2-203.)1 The email also notified
Gordon that he could “appeal any or all portions of this decision”
to the city manager.
¶5 Rather than appeal that decision, Gordon sued Herriman in
district court, seeking injunctive relief in the form of an “order
permitting [him] to inspect records free of charge during regular
business hours.” Herriman moved to dismiss Gordon’s GRAMA
claim for lack of jurisdiction because Gordon did not, as required
by GRAMA, exhaust his administrative remedies.
¶6 The district court agreed with Herriman and dismissed
Gordon’s claim. The court acknowledged that it struggled to
understand what aspect of Herriman’s actions Gordon was
challenging. But the court ruled that, no matter the challenge,
Gordon was not entitled to judicial review because “[e]ither a
formal GRAMA request was not made or, alternatively, if a formal
GRAMA request was made, then the administrative remedies
associated with that were not fully exhausted.”
¶7 Gordon appealed the district court’s decision, and we
elected to retain the appeal. After oral argument, we requested
supplemental briefing addressing, among other things, whether
Gordon has standing to seek injunctive relief based on what he
perceives as Herriman’s “blanket policy” without tying his
challenge to a specific records request.
ISSUE AND STANDARD OF REVIEW
¶8 The sole issue on appeal is whether the district court
correctly dismissed Gordon’s GRAMA claim. The review of a
ruling on a motion to dismiss “presents a legal question that we
review for correctness, affording no deference to the district court’s
decision.” McKitrick v. Gibson, 2021 UT 48, ¶ 14,
496 P.3d 147
(cleaned up). “[T]he question of whether a specific individual has
standing to assert a claim is primarily a question of law.”
Id.
ANALYSIS
¶9 Gordon argues that Herriman cannot charge requesters for
inspecting public records during business hours, even if the city
must spend significant staff time to produce the responsive
__________________________________________________________
1 GRAMA has been amended since Gordon filed his district
court petition in December 2022. Unless otherwise stated, we cite
the December 2022 version of GRAMA because that version of the
law was in effect when Gordon filed his petition.
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Opinion of the Court
records. In support, Gordon points to a section of GRAMA that
grants a person “the right to inspect a public record free of charge,
and the right to take a copy of a public record during normal
working hours, subject to Sections 63G-2-203 and 63G-2-204.”
(Quoting UTAH CODE § 63G-2-201(1)(a).) Although sections 203 and
204 set forth allowable fees and processing times, Gordon argues
that the phrase “subject to Sections 63G-2-203 and 63G-2-204”
modifies only “the right to take a copy of a public record” and does
not apply to “the right to inspect a public record free of charge.” In
other words, Gordon argues that the regulations around fees and
processing times apply only to situations in which someone seeks
to take a copy of a record, not to situations in which someone seeks
to inspect a record.
¶10 We cannot address this argument, however, unless
Gordon has standing to invoke the court’s jurisdiction. We note
that, in its initial brief, Herriman assumed that Gordon was
appealing a records request decision. Based on that understanding,
Herriman principally argued that Gordon had failed to exhaust his
administrative remedies before bringing suit. In his reply brief,
Gordon clarified that his challenge does not arise from a records
request and argued that this posture relieved him of the exhaustion
requirement.
¶11 The position Gordon took in his reply brief raised
questions about his standing to pursue the present challenge. We
have said that “standing is a jurisdictional requirement that must
be satisfied before a court may entertain a controversy between two
parties.” Laws v. Grayeyes, 2021 UT 59, ¶ 27,
498 P.3d 410 (cleaned
up). “The requirement of standing is jurisdictional in the sense that
it defines the limits of the judicial power in our tripartite system of
government.” In re Adoption of B.B.,
2020 UT 52, ¶ 29,
469 P.3d 1083
(cleaned up). “It should thus be raised sua sponte by the court in the
face of any doubt on the matter.”
Id. (cleaned up). In accordance
with these principles, we “explored some doubts about . . .
standing at oral argument and subsequently asked the parties to
submit supplemental briefing addressing this issue.” See
id. Having
now reviewed the parties’ supplemental arguments, we conclude
that Gordon lacks statutory standing to pursue this challenge.
¶12 “To have standing to assert a claim a plaintiff must clear
two hurdles. The first hurdle emanates from the law that
establishes the plaintiff’s right of action—the common law, a
statute, or the constitution.” Haik v. Jones, 2018 UT 39, ¶ 39,
427 P.3d
1155 (Lee, A.C.J., concurring in part and concurring in the
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judgment). The second hurdle is the traditional standing test,
which “requires proof that the plaintiff suffered a distinct and
palpable injury that gives rise to a personal stake in the outcome of
the dispute.” Id. ¶ 40 (cleaned up).
¶13 Gordon fails to clear the first hurdle. Although he
references the constitutional underpinnings of GRAMA, he has not
directly asserted a constitutional or common law right to inspect
records free of charge. Instead, he argues that GRAMA itself
prohibits governmental entities from charging a fee for inspection.
When the legislature creates statutory requirements, such as those
in GRAMA, “it is entitled to designate, as it sees fit, how those
requirements are to be enforced.” Bleazard v. City of Erda, 2024 UT
17, ¶ 42, __P.3d__ (cleaned up). Therefore, “we first ask whether
[Gordon] meets the requirements for standing under GRAMA—in
other words, whether he is one of the persons the statute allows to
seek judicial review” of the action challenged on appeal. McKitrick
v. Gibson,
2021 UT 48, ¶ 18,
496 P.3d 147. Whether a plaintiff
belongs to a class of persons that the legislature authorized to file
suit is often referred to as “statutory standing.” Bleazard,
2024 UT
17, ¶ 43 (cleaned up). If Gordon lacks statutory standing, “the
presence of traditional or alternative standing will not cure” that
deficiency. McKitrick,
2021 UT 48, ¶ 2.
¶14 Under the statutory standing framework, “we must
determine to what class of plaintiffs [GRAMA] grants a right to sue
and whether [Gordon] is within that class.” See Rupp v. Moffo, 2015
UT 71, ¶ 9,
358 P.3d 1060. When we interpret statutes, “our primary
objective is to ascertain the intent of the legislature.” McKitrick,
2021
UT 48, ¶ 19 (cleaned up). “The best evidence of the legislature’s
intent is the plain language of the statute itself,” but “we do not
interpret statutory text in isolation.”
Id. (cleaned up). We
“determine the meaning of the text given the relevant context of the
statute (including, particularly, the structure and language of the
statutory scheme).”
Id. (cleaned up).
¶15 GRAMA authorizes only certain persons to seek judicial
review of particular decisions about records. Section 404, titled
“Judicial review,” states that a party may file a petition “for judicial
review of an order or decision, as allowed under this part or in
Subsection 63G-2-701(6)(a)(ii).” UTAH CODE § 63G-2-404(1)(a). Part
4 and subsection -701(6)(a)(ii) allow for judicial review when
• a requester or interested party appeals “an access
denial,” see id. § 63G-2-401(1)(a);
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• an aggrieved person appeals a governmental
entity’s classification or designation of a record, see
id. § 63G-2-401(8); and
• a political subdivision or requester files a petition
from an appeals board decision, see id.
§ 63G-2 -701(6)(a)(ii).
¶16 Gordon falls within none of these categories. The first
category does not apply because Gordon is emphatic that he did
not bring this lawsuit “seeking access to a particular record but
only to challenge the city’s policy.” The second category likewise
does not apply because Gordon does not challenge a record
classification or designation. And the third category does not apply
because Gordon is not a requester who seeks review of an appeals
board decision.
¶17 Instead of arguing that he falls within one of the categories
listed above, Gordon claims that he has statutory standing by
virtue of the injunction provision found in Utah Code section
63G-2-802(1). That section states, “[a] district court in this state may
enjoin any governmental entity or political subdivision that
violates or proposes to violate the provisions of this chapter.” Id.
§ 63G-2-802. We conclude, however, that the injunction provision
merely provides a remedy; it does not supply a right of action.
¶18 Whether section 802 creates a right of action “is a question
of statutory interpretation.” See Buckner v. Kennard, 2004 UT 78,
¶ 41,
99 P.3d 842. We “look first to the plain language of the statute
for an express indication that a private right of action was
intended.” Machan v. UNUM Life Ins. Co. of Am.,
2005 UT 37, ¶ 24,
116 P.3d 342. Such an indication is made clear by “explicit
language” and does not “require anyone to add language or make
inferences to impart the full meaning of the statute.” Miller v.
Weaver,
2003 UT 12, ¶ 21,
66 P.3d 592.
¶19 “In the absence of language expressly granting a private
right of action in the statute itself, the courts of this state are
reluctant to imply a private right of action based on state law.” Id.
¶ 20. In fact, “Utah courts have rarely, if ever, found a Utah statute
to grant an implied private right of action.” Buckner,
2004 UT 78,
¶ 43. “Our reluctance is amplified when, for example, discerning a
right of action would require[] us to infer language and meaning
that does not appear on the face of the statute or when doing so
would be inconsistent with the Legislature’s statutory scheme.”
Bleazard,
2024 UT 17, ¶ 47 (cleaned up).
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¶20 Here, the section on which Gordon relies, section 802,
contains no express indication that a private right of action was
intended. Where the legislature has granted the right to judicial
review in GRAMA, it has done so unambiguously. The sections
listed above, sections 63G-2-401(1)(a), -401(8), and -701(6)(a)(ii),
each identify a specific type of records decision and the class of
persons who may appeal that decision. Section 404, titled “Judicial
review,” then sets forth the procedure for seeking “judicial review
of an order or decision” as allowed under part 4 of GRAMA or
subsection -701(6)(a)(ii). UTAH CODE § 63G-2-404(1)(a).
¶21 In contrast, section 802 is found in part 8 of GRAMA, titled
“Remedies.” Unlike the provisions listed in section 404, section 802
does not authorize a class of persons to seek judicial review of
certain records decisions. Instead, it authorizes the district court to
grant injunctive relief and award attorney fees to the requester in
certain situations. In other words, the section does not create a
private right of action but merely affords a particular remedy if a
party that already has a private right of action prevails.
¶22 In that way, section 802 functions much like the
Declaratory Judgment Act, which gives district courts “the power
to issue declaratory judgments.” Id. § 78B-6-401(1). We have held
that the Declaratory Judgment Act “merely authorizes a new form
of relief” and “does not create a cause of action or grant jurisdiction
. . . where it would not otherwise exist.” Jenkins v. Swan, 675 P.2d
1145, 1148 (Utah 1983). Accordingly, a plaintiff seeking a
declaratory judgment that a statute has been violated must have a
separate right of action. Summit County v. Town of Hideout,
2024 UT
16, ¶¶ 32–35; Bleazard,
2024 UT 17, ¶ 44. Just as a plaintiff cannot
seek a declaratory judgment without an independent right of
action, Gordon cannot seek an injunction under section 802 because
he is not within the class of persons authorized by the legislature to
seek judicial review of alleged GRAMA violations.
¶23 Because section 802 does not expressly create a private
right of action, we must consider whether this is a rare instance
where one should be inferred. Gordon contends that the legislature
must have intended to create a private right of action in section 802
because that section allows the district court to “enjoin any
governmental entity or political subdivision that violates or proposes
to violate the provisions of this chapter.” UTAH CODE § 63G-2-802(1)
(emphasis added). He reasons that the “only way a person could
ask a district court to enjoin a proposed violation of GRAMA is if
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persons had the right to file a lawsuit seeking the injunctive relief
the Utah Legislature has provided.”
¶24 We disagree with Gordon’s reasoning. As an initial matter,
we can envision circumstances in which a proposed violation of
GRAMA would fall within an express right of judicial review. For
instance, an aggrieved person authorized to seek judicial review of
a classification decision might request injunctive relief that would
prospectively prevent or require the release of the subject record.
But in any event, “[w]e will not infer that the legislature intended
to create a new statutory right of action in such an oblique way.”
Bleazard, 2024 UT 17, ¶ 55. This sentiment is particularly true where
the legislature has expressly granted the right to judicial review in
other provisions of GRAMA. And although GRAMA specifically
allows political subdivisions to adopt ordinances and policies to
govern records requests, see UTAH CODE § 63G-2-701, the
legislature did not see fit to authorize judicial review of those
general policies. We cannot read into GRAMA something that is
not there.
¶25 Without an express or implied statutory right to seek
judicial review of Herriman’s alleged policy, Gordon lacks
statutory standing to pursue this action.
CONCLUSION
¶26 We affirm the district court’s dismissal of Gordon’s claim.
To invoke the court’s jurisdiction, a statutory claimant must be
within the class of persons authorized by the legislature to file suit
to enforce the statute. Because Gordon lacks statutory standing, the
district court lacked jurisdiction to adjudicate his GRAMA claim
and properly dismissed it.
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