2010

Participatory Democracy
Anderson v. Bell

Indigent Defense
State v. Ethridge

2009

Free Expression
Bushco v. Utah State Tax Commission (Amicus)

2007

Excessive Force and Unlawful Detention
Walker v. City of Orem

Employment Discrimination
Etsitty v. Utah Transit Authority

Fourth Amendment
Regan v. County of Salt Lake

Lesbian and Gay Equality
Norman v. Anderson

Free Speech and Police Practices
Uprock v. Tracy

Free Speech and Separation of Church and State
Utah Gospel Mission v. Salt Lake City Corporation

Right to Anonymous Speech
Merkey v. Yahoo SCOX (Amicus Brief)

First Amendment and Due Process
Kinter v. Cache County

Freedom of Speech
Larsen v. City of Draper

Unreasonable Search and Seizure
U.S. v. Esparza-Mendoza

Due Process
Perry v. State of Utah
Nuttall v. Salt Lake County

Religious Freedom
Nathan Clark v. Iron County

Free Speech
Ogden City v. Bruce Edwards and Bruce Edwards v. Ogden City

First Amendment and Lesbian and Gay Rights
Citizens of Nebo School District v. Weaver

Open and Public Meetings
Rick Curtis v. Utah State Child Support Guidelines Advisory Committee

Free Speech and Separation of Church and State
First Unitarian Church v. Salt Lake City Corporation

Free Speech
State of Utah v. Ian Michael Lake

Right to Appointed Counsel
State of Utah v. Paul Johnson

Commercial Speech
B. L. Brereton v. Salt Lake County
B. L. Brereton v. Taylorsville City Corporation
B. L. Brereton v. Holladay City Corporation
B. L. Brereton v. Draper City
Mobile Media on the Go v. Salt Lake City Corporation

Privacy
Salt Lake City v. Keith Roberts

Equal Protection and First Amendment Rights to Free Speech and Redress of Grievances
Alvarez v. State of Utah

Free Speech and Free Exercise of Religion
Van Gorden v. Utah State Fair

Open and Public Meetings
Kearns Tribune Corporation v. Utah Department of Alcoholic Beverage Control

Open Records
ACLU of Utah v. Utah Olympic Public Safety Command

Right to Protest and Equal Protection
Utah Animal Rights Coalition v. State of Utah

Unlawful Search
Foote v. Spiegel

Age Discrimination
Burton v. Exam Center Industrial

Free Speech and Right to Petition the Government
Guido v. Utah State Fair Corporation

Unlawful Search
Skultin v. Bushnell

Ex Post Facto and Due Process Violations
Femedeer v. Department of Corrections

Governmental Accountability
Craig Axford v. Salt Lake Corporation

Equal Protection
Utah Children v. Utah Division of Child and Family Services

Racial Profiling
Mani Kang v. Utah State Department of Public Safety

Students’ Rights to Free Speech and Association
East High Gay/Straight Alliance v. Board of Education and
East High School PRISM Club v. Cynthia L. Seidel

Open and Public Meetings
Humane Society of Utah v. Utah Wildlife Board

Religious Discrimination
Larson v. Provo School District

Privacy
Roe v. Utah County

Free Speech and Right to Petition the Government
Slevin v. Salt Lake County Fair

Unlawful Search
Valdez v. McPheters

First Amendment and Lesbian and Gay Rights
Weaver v. Nebo School District

Illegally Constituted Juries
Crank v. Utah Judicial Council

HIV/AIDS
Allred v. Solaray

Unlawful Search
Laughter v. Kay

Treatment of Prison Inmates with Mental Illness
NLS v. Jones

Open and Public Meetings
Jolley v. Utah State Senate

Racial and Religious Harassment
Silvermans v. State of Utah

Reproductive Rights
Jane L. v. Bangerter

Jail Conditions
Bennett v. Utah County

Death Penalty
State of Utah v. Simmons and State of Utah v. Gardner

Case Summaries

Anderson v. Bell
Participatory Democracy
On March 18, 2010, Mr. Farley Anderson, an independent candidate for governor, presented to the Lieutenant Governor a nominating petition signed by over 1,000 Utah voters. This petition was a key step in Utah’s statutory ballot access process for unaffiliated candidates. Lieutenant Governor Greg Bell rejected Mr. Anderson’s petition because a small portion of the signatures were “e-signatures,” collected through a secure website. The Lieutenant Governor, acting under advice from Utah Attorney General Mark Shurtleff, held to the position that e-signatures were not legal “signatures” for use in candidate petitions. Mr. Anderson subsequently filed both a pro se petition for an extraordinary writ with the Utah Supreme Court and a complaint with the American Civil Liberties Union of Utah. On May 24, The ACLU of Utah and cooperating attorney Brent Manning, of the Salt Lake City law firm Manning, Curtis, Bradshaw & Bednar, filed a notice that they would represent Mr. Anderson in his challenge of the Lt. Governor’s actions before the Utah Supreme Court.

On June 2, 2010, The ACLU of Utah and Mr. Manning argued before the Utah Supreme Court that electronic signatures are valid, legal signatures under long-established common and statutory law, and that the Lieutenant Governor overstepped the bounds of his statutorily-defined authority when he rejected Mr. Anderson's petition. The Utah Attorney General’s office argued in response that the Utah Election Code did not permit the use of electronic signatures. The Court then asked both parties to submit supplemental memoranda. The ACLU of Utah submitted their memorandum on June 7th and the Utah Attorney General's office submitted their memorandum on June 14th. The Court issued their opinion on June 22, broadly validating the use of e-signatures in the ballot access petition process. Chief Justice Durham, writing for the Court, unambiguously rejected the Lt. Governor’s arguments and upheld the validity of e-signatures for ballot access petitions. The Court’s holding, the first of its kind nationwide, has the potential to significantly increase the ability of independent candidates to access the general election ballot, and thus to increase the opportunity for minority viewpoints in Utah to be heard and considered in election years. Read the ACLU of Utah press release announcing the opinion >>

State v. Ethridge
Indigent Defense
Jacob Ethridge, who is indigent, faces capital murder charges stemming from the 2008 deaths of two women. Weber County, which opted out of the statewide Indigent Capital Defense Trust Fund (which provides funds to all participating counties for the defense of capital cases), sought to replace Mr. Ethridge’s court-appointed attorneys with two new lawyers who have general service public defender contracts with Weber County with no experience in capital cases. The ACLU filed a motion on 4/22/10 arguing that appointing new and relatively inexperienced defense attorneys would violate Mr. Ethridge’s constitutional rights under the Sixth Amendment right to counsel and his Fifth and Fourteenth Amendment rights to due process and equal protection. 

Following oral argument, the Court issued a lengthy written decision, with references to cases cited by the ACLU, affirming Mr. Ethridge’s right to maintain his current counsel. Noting that ABA standards “suggest that continuity of counsel is important for adequate and effective representation,” the Court found that Mr. Ethridge’s counsel had already hired experts, developed trial and mitigation phrase strategies, and nearly completed their preparation for trial.

Bushco v. Utah State Tax Commission (Amicus)
Free Expression
During its 2004 general session, the Utah State Legislature passed H.B. 239, “Sexually Explicit Business and Escort Service Tax,” which imposes a substantial tax on businesses that provide escort services or feature “any nude or partially denuded individual.” The ACLU of Utah and others lobbied against the bill, warning that legislators’ unsupported assertions that there is a connection between the types of businesses targeted by the bill and sex crimes were not enough to provide a compelling state interest for such a punitive tax scheme. Absent such an interest, the bill’s selective taxation is, in effect, a content-based restriction on constitutionally protected expression, and it is impermissible under the First Amendment. Additionally, even if legislators could provide a compelling state interest for imposing the tax, the bill’s definition of “sexually explicit business” is so broad (it could, for example, include theater and other performing arts groups) that it would fail the courts’ requirement that any restriction on speech be narrowly tailored to address that interest. Legislators were undeterred by our arguments. In 2004, ACLU of Utah board member W. Andrew McCullough filed a lawsuit on behalf of several escort services and nude dancing establishments challenging the law’s constitutionality, and in 2007, the Utah Supreme Court agreed to hear the case. On November 16, 2007, the ACLU of Utah filed a friend-of-the-court brief with the Utah Supreme Court in which we asked the court to find the law unconstitutional.

In a blow to First Amendment-protected expression in Utah, the Utah Supreme Court rejected in part the challenge to the law in its decision released on November 20, 2009. The court found that the state’s asserted interest in targeting sex crimes was sufficient to justify the law. A dissenting opinion by Justice Durham stated that the law does indeed unconstitutionally and unjustifiably restrict certain speech in violation of the First Amendment – a view emphatically shared by the ACLU of Utah in its amicus brief to the case.

Walker v. City of Orem
Excessive Force
On December 29, 1998, David Walker was shot four times by law enforcement in the driveway of his American Fork family home where he lived with his parents. His parents witnessed the shooting, as did his two sisters and his brother-in-law who lived next door on the same lot. Law enforcement was looking for David because his family had reported the car he was driving as stolen. They did this because they knew David was suicidal, and were told that if the vehicle were reported stolen, law enforcement could assist in locating David. David’s location was identified and, after he evaded the officers, an eventual slow-speed chase ensued. Officers from Orem, Pleasant Grove, and Utah County responded to various reports on dispatch, one of which stated that David was suicidal and returning to the family home. There, David exited the car, and family members came outside to see what the commotion was. Standing in front of the car, David held a small knife to his wrist. Within seconds, several shots were fired and hit David. After the shooting, law enforcement officers aggressively kept the family inside the house for questioning and did not permit them to follow David to the hospital, where he died approximately 90 minutes later.

In 1999, the Walker family filed a section 1983 civil action case in federal district court against the Orem City Police Department, the Pleasant Grove Police Department, and the Utah County Sheriff’s Department, charging law enforcement with excessive force and unlawful detention. In April 2004, the ACLU of Utah joined with the law firm of Strindberg Scholnick & Chamness in representing the Walker family in their case.

Two Utah County officers named in the original lawsuit asked to be dismissed from the case. The district court denied the officers’ Motion to Dismiss, and Utah County appealed to the Tenth Circuit Court of Appeals on that issue. On November 22, 2004, we submitted a brief in which we argued that the officers should not be dismissed from the case. The district court granted the Utah County defendants’ Motion for Summary Judgment based on qualified immunity. Because all the other claims remaining in the suit were already being appealed to the Tenth Circuit, the Walker family requested permission to appeal the summary judgment decision, and on May 23, 2005, we submitted a brief arguing that the Utah County defendants were not entitled to qualified immunity and summary judgment. The brief argued that the Utah County officers violated clearly established law surrounding the Fourth Amendment’s prohibition on illegal searches and seizures when they illegally detained the Walker family after David was shot.

On June 27, 2006, the Tenth Circuit issued an opinion in four consolidated appeals in the Walker case. The court held that, “the lengthy detention alleged in this case was unreasonable and was not justified by either the need for investigation of a crime or control of a crime scene. … [P]laintiffs have adequately alleged a violation of their Fourth Amendment rights.” However, the court also held that the reasonable duration of such a detention was not “clearly established” at the time of the events in question, and as a result, it allowed the dismissal of claims against Utah County and two Utah County Sheriff’s officers. In other words, the court held that plaintiffs’ allegations amounted to an illegal detention, but, because previous cases did not define the reasonable duration of such a detention, the officers could not be expected to know that their conduct violated the Fourth Amendment and therefore were not liable for their actions. In the future, law enforcement officers should be aware that similar detentions may violate the Fourth Amendment, based on this decision. In the opinion, the appellate court refused to dismiss the suit against two police officers, one from Orem and the other from Pleasant Grove.

Consistent with the appellate court’s ruling, the two officers were tried by a jury in October 2007. The jury ruled against the plaintiffs. Nevertheless, the courageous action by the Walker family in pursuing this suit was not in vain. The case stands for the proposition that unreasonable officer conduct is not shielded by the cloak of immunity. Additionally, this case set the standard for unlawful detentions by police in similar situations.   

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Etsitty v. Utah Transit Authority
Employment Discrimination
In February 2002, Krystal Etsitty was fired from the Utah Transit Authority where she had worked as a bus driver for several months. The termination came shortly after she revealed to her employers that she is a transsexual, and although her employers had received no complaints about her, they informed her that she was being fired because they could not determine which restroom she should use. Etsitty, who identifies and lives as a woman, has legally changed her name from Michael to Krystal and has changed her Utah driver’s license designation from male to female. UTA told her she would be eligible for rehire only after undergoing sex reassignment surgery.

Etsitty, represented by the law firm of Strindberg & Scholnick, argued in federal court that she was protected by Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination based on sex, including nonconformity to sex stereotypes. In June 2005, the district court granted summary judgment to UTA, holding that transgender people are not protected by Title VII, and that even if Title VII did apply, UTA’s decision was not based on Etsitty’s lack of conformity to sex stereotypes. Etsitty then asked the Tenth Circuit Court of Appeals to reverse the district court’s decision. In October 2005, the ACLU of Utah, the ACLU Lesbian and Gay Rights Project, Lambda Legal Defense and Education Fund, and the National Center for Lesbian Rights filed an amicus brief with the Tenth Circuit on behalf of Etsitty.

On September 20, 2007, the Tenth Circuit issued an opinion in which it affirmed the district court’s decision in favor of UTA, concluding that “discrimination against a transsexual because she is a transsexual is not ‘discrimination because of sex,’” and that “transsexuals are not a protected class under Title VII.” We believe this decision is out of step with the current trend, which is for both state and federal courts to recognize that discrimination against transgender people is by its very nature rooted in sex discrimination. The Tenth Circuit decision calls attention to the need for federal legislation prohibiting discrimination based solely on the fact that an employee is transgender.

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Regan v. County of Salt Lake
Fourth Amendment
In 1982, ACLU cooperating attorneys Bob Anderson, Rocky Anderson, and Wayne McCormick filed an action against the Salt Lake County Jail for Fourth Amendment violations. In the original case, law enforcement officers pulled over Judith Regan, an out-of-state reporter, for a traffic violation. Regan refused to sign the ticket because it required a statement that she would appear in court within a specific time frame, and she knew she would no longer be in Salt Lake City at that time. She was then handcuffed and eventually strip searched by county law enforcement, in violation of her Fourth Amendment right to be free from unreasonable searches and seizures.

As a result of the action, a consent decree was entered into that restricted the circumstances under which the Salt Lake County Jail could constitutionally conduct strip searches. In November 2004, the county asked the Federal District Court to terminate the consent decree, claiming that there are no current constitutional violations and that current search procedures at the jail meet constitutional standards. Under the Prison Litigation Reform Act, passed by Congress in 1996, consent decrees that exceed constitutional standards may be terminated in appropriate cases.

On November 30, 2004, the ACLU of Utah and cooperating attorney Bob Anderson filed a memorandum opposing Salt Lake County’s motion in which we requested that the consent decree not be terminated until the plaintiffs had a chance to review search procedures at the jail. We also filed a motion asking the court to appoint an expert to review jail procedures and complaints. If a review revealed that there were no violations of federal rights at the Salt Lake County Jail, and if current policy passed constitutional muster, then we argued that termination of the consent decree may be reasonable.

At a December 20, 2004 hearing, U.S. District Court Judge Bruce S. Jenkins refused to consider Salt Lake County’s motion to terminate the consent decree because it had submitted only a draft revision of its strip search policy. On January 12, 2005, Salt Lake County refiled its motion to terminate the consent decree, after having revised and finalized its policy. On February 11, 2005, we filed a second motion opposing termination. On October 18, 2005, the court requested that the county supplement the record, identifying with specificity how its current policy incorporated the substance of the consent decree. 

After reviewing the supplemental briefing and the record, the court issued a ruling on December 11, 2006, granting Salt Lake County’s request to terminate the consent decree. The court was satisfied that Salt Lake County’s policy “incorporates in substance the requirements of the Consent Decree,” making the decree no longer necessary. The court also noted that the decree was no longer necessary because there was no evidence of current and ongoing constitutional violations of detainees’ federal rights.

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Norman v. Anderson
Lesbian and Gay Equality
On September 21, 2005, Salt Lake City Mayor Rocky Anderson signed an executive order to extend health and other employment benefits to city employees’ same-sex and heterosexual domestic partners. Less than a week later, the governing body of the agency that administers health insurance for state and local government employees filed a petition with the state court requesting clarification about whether Utah law prohibits Salt Lake City from offering health insurance benefits to domestic partners. Specifically, the Utah State Retirement Board cited Utah’s constitutional amendment prohibiting the government from giving same-sex relationships the “same or substantially equivalent legal effect” as marriage, as well as Utah’s Marriage Recognition Policy, which states that Utah will not recognize any law that creates benefits for unmarried couples that are “substantially equivalent” to marriage.

On November 10, 2005, the ACLU of Utah, the national ACLU, Salt Lake City Police Department employee Dianna Goodliffe, and the local branch of the American Federation of State, County and Municipal Employees filed an amicus brief in support of Salt Lake City’s executive order. In our brief, we argue that there is nothing in Utah’s statutory or constitutional law that prohibits Salt Lake City from offering domestic partner benefits, that health insurance is not “substantially equivalent” to marriage, and that there are strong public policy arguments in favor of making such benefits available.

In February 2006, the Salt Lake City Council voted to replace Mayor Anderson’s benefits plan with one that allows unmarried city employees to sign up “adult designees” for health insurance. In addition to domestic partners, such designees could be relatives or roommates. On May 11, 2006, Third District Judge Stephen Roth issued a ruling stating that the Council’s benefit plan was not in violation of Utah law. The judge also acknowledged the policy arguments in favor of providing more expansive benefit plans, noting that, “as a practical matter single employees may have relationships outside of marriage, whether motivated by family feeling, emotional attachment or practical considerations, which draw on their resources to provide the necessaries of life, including health care.” Salt Lake City has indicated that it will implement the new benefits plan immediately.

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Uprock v. Tracy
Free Speech and Police Practices
On August 20, 2005, Utah County law enforcement officers raided and shut down an outdoor electronic music concert taking place on a private ranch in Spanish Fork Canyon. Police did not have warrants to enter the property or to search concertgoers, and Utah County Sheriff James Tracy authorized and implemented the raid based largely on the presumption that the concert would continue beyond the twelve hours for which the promoters had secured the necessary permits. The raid, however, occurred only a few hours into the concert. On September 26, 2005, the ACLU Drug Law Reform Project joined in a lawsuit that had already been filed by Salt Lake City civil rights attorney Brian Barnard. The complaint charged law enforcement with widespread violations of the First Amendment, due process, and Fourth Amendment rights of the concert promoters and venue owners. On April 10, 2006, plaintiffs filed a motion to dismiss the case without prejudice, reserving their right to refile the case in the future.

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Utah Gospel Mission v. Salt Lake City Corporation
Free Speech and Separation of Church and State
In June 2003, the Salt Lake City Council set in motion a second lawsuit involving the public’s First Amendment rights on the Main Street Plaza when it voted 6-0 to swap the plaza’s public easement for land owned by the Church of Jesus Christ of Latter-day Saints on the west side of town and funds to create a new community center. The vote came seven months after the Tenth Circuit Court of Appeals ruled on the ACLU of Utah’s first Main Street case, holding that the easement was a public forum with the accompanying First Amendment rights, and that any viewpoint-based restrictions associated with the easement were unconstitutional. Since the Tenth Circuit’s ruling, city leaders struggled to find a way to both appease the desires of the LDS Church to control expression on the plaza and to honor the community’s expectation that the plaza would remain a public forum. Unfortunately, the city chose to protect the church’s religious use of the property and to prevent anyone with viewpoints other than those endorsed by the church to express them on what used to be downtown Main Street.

In August 2003, the ACLU of Utah and the national ACLU filed a lawsuit (see our final amended complaint filed December 2003) asking the federal court to examine everything surrounding the exchange of the public easement to determine whether the city set aside its long-stated and valid public policy for pedestrian access and passage through the Main Street Plaza in order to accommodate the LDS Church’s desire to impose discriminatory restrictions on speech expressed on that property. The brief maintained that the city’s action violated the free speech rights of its citizens and represented an unconstitutional endorsement of the LDS Church. In May 2004, the Utah Federal Court dismissed the case, and that same month, we appealed to the Tenth Circuit Court of Appeals (see the amended brief we filed in September 2004). In an October 3, 2005 decision, the Tenth Circuit dismissed all of our claims, ruling that the Main Street Plaza is no longer a public forum and that the city’s decision to sell the easement did not violate the Establishment Clause. Unfortunately for Salt Lake City residents, this decision may precipitate the loss of a central public forum of the type that was held in high esteem by our country’s founders who valued, rather than stifled, diverse viewpoints.

More information on the Main Street cases >>

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Merkey v. Yahoo SCOX
Right to Anonymous Speech
On August 17, 2005, the ACLU of Utah and the Electronic Frontier Foundation (EFF) filed a friend-of-the-court brief in support of the First Amendment right to speak anonymously on issues of public concern. The brief was in regards to a U.S. District Court case that arose, in part, out of anonymous postings from a Yahoo group and several weblogs. Utah plaintiff Jeffrey Merkey requested an expedited process for serving subpoenas unmasking anonymous critics who participated in an online discussion about another court case in which the Utah-based technology company SCO Group, Inc. is suing IBM. The ACLU of Utah and the EFF argued that before an online speaker is exposed, litigants must show that the anonymous poster’s identity is central to their claims, that those claims are viable, and that the litigant can acquire the information in no other manner. The Utah District Court agreed and demanded that Merkey submit additional information showing his good faith efforts to contact the defendants, the likelihood of jurisdiction, and the viability of his claims. Instead, Merkey declined to submit the requested information and, on August 26, he dismissed the anonymous Yahoo message board defendants from the case.

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Kinter v. Cache County
First Amendment and Due Process
John Morris Kinter was a federal pre-trial detainee in the Cache County Jail. In January 2005, he ordered and paid for a legal dictionary that was mailed to him at the jail. When the book arrived that month, officials informed him that according to jail policy, the dictionary now belonged to the Cache County Jail and would remain at that facility after Kinter’s release or transfer. On February 15, 2005, the ACLU of Utah and cooperating attorney Brian Barnard filed a federal lawsuit on Kinter’s behalf asking that the policy be declared unconstitutional because it violates inmates’ First Amendment rights and because the confiscation of books is an unconstitutional taking without due process. Shortly after the lawsuit was filed, Cache County Jail informally changed its policy and Kinter was allowed to take his book when he was transferred to another facility. As a result of these actions, we withdrew from the case. We will continue to monitor how Cache County Jail implements its book policy.

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Larsen v. City of Draper
Free Speech
On September 14, 2004, the ACLU of Utah and cooperating attorney Brian Barnard filed a complaint and temporary restraining order in Federal District Court challenging as unconstitutional a Draper City ordinance that impermissibly placed durational time limits on political campaign signs according to the content of the signs. In part, the ordinance prohibited display of many candidates’ signs on private property more than thirty days prior to the general election.

The plaintiffs in this suit were: Robert Latham, a Draper resident and attorney who wished to display campaign and political issue signs in his yard, but was thwarted by the city ordinance; Heather Rice, who was concerned about being cited for placing campaign signs for the candidate of her choice in a yard in Draper; and Ken Larsen, a candidate running for Utah governor under the People’s Choice party, who would have liked to immediately begin posting his campaign signs in visible Draper front yards.

The suit called for an immediate temporary restraining order to prohibit Draper from enforcing the ordinance because it unconstitutionally interfered with free expression and political speech as defined by the First Amendment to the United States Constitution and the Utah Constitution.

Less than 48 hours after the complaint and request for an injunction were filed, Draper City agreed not to enforce the offending ordinance between September 15, 2004 and November 2, 2004, Election Day. On October 22, 2004, Draper City agreed to repeal the ordinance. As part of the settlement, the Draper City attorney agreed to write to city attorneys in all other cities in Salt Lake County suggesting they review and repeal similar ordinances.

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U.S. v. Esparza-Mendoza
Unreasonable Search and Seizure
In May 2003, U.S. District Judge Paul Cassell ruled that the Fourth Amendment’s prohibition of unreasonable searches or seizures by law enforcement officers did not apply to undocumented immigrants who have previously been deported because of a felony charge. This unprecedented ruling was based on a case involving Jorge Esparza-Mendoza, a Mexican national who was prosecuted in 2002 for illegally reentering the United States. Law enforcement learned of Esparza-Mendoza’s immigration status after he was detained and questioned by Salt Lake County Sheriff’s officers when his parked car was damaged in an altercation and he declined to make a claim for the damage or show identification to the deputies investigating the matter. The Utah Federal Court held that Esparza-Mendoza’s detention was an illegal seizure but that the Fourth Amendment did not apply to him or any other “previously-removed alien felons.”

In December 2003, the ACLU of Utah, along with the ACLU Immigrants’ Rights Project, the National Association of Federal Defenders, and the National Association of Criminal Defense Lawyers, filed a friend-of-the-court brief urging the Tenth Circuit Court of Appeals to reverse Judge Cassell’s ruling. The brief argued that the Utah Federal Court “stands alone among the federal courts that have confronted this issue,” and that its “analyses is unsupported by precedent, history or constitutional text.” The brief also argued that the ruling undermined the constitutional protections for citizens and immigrants alike because it invited law enforcement officers to make snap judgments about a person’s immigration status based on ethnicity, race, or ability to speak English.

In a ruling issued October 14, 2004, the Tenth Circuit rejected Judge Cassell’s decision that the detention was an illegal seizure, and concluded instead that “Esparza-Mendoza’s encounter with the police was consensual and thus did not implicate the Fourth Amendment.” By stating that law enforcement did not violate Esparza-Mendoza’s Fourth Amendment rights, the Tenth Circuit implied that he does indeed have those rights; and, while the outcome is the same for Esparza-Mendoza, it is significant that the Tenth Circuit did not affirm Judge Cassell’s unprecedented reasoning for achieving that outcome.

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Perry v. State of Utah and Nuttall v. Salt Lake County
Due Process
In 2002, officials at the Department of Corrections and the Salt Lake County Metro Jail announced that in an effort to comply with a recent legislative mandate, they would begin collecting DNA samples from all inmates who had pled guilty to or been convicted of a felony charge or a class A burglary offense. Additionally, they hoped to pay for this operation by charging inmates a mandatory $75 processing fee with no exception for those who were unable to pay. In two separate cases filed with cooperating attorney Brian Barnard in 2002, we argued that because neither the Department of Corrections nor the Salt Lake County Metro Jail had enacted rules or procedures to determine whether inmates were indigent, and therefore unable to pay the fee, both departments violated inmates’ due process rights. During their 2004 session, the Utah State Legislature passed HB 93, "DNA Reimbursement Costs," which stated that corrections agencies could charge an across-the-board $75 processing fee for taking DNA samples even if charging that fee would result in a negative balance in an inmate’s account. The bill further stated that if an agency chose to charge this fee, they have met their obligation to determine an inmate’s ability to pay. The legislation effectively rendered our lawsuits moot, and in April 2004, we filed motions to dismiss.

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Nathan Clark v. Iron County
Religious Freedom
For twelve days in the fall of 2002, Nathan Clark was incarcerated in the Iron County Jail. As a devotee of the International Society for Krishna Consciousness, Clark had strict dietary requirements, which jail officials refused to provide to him even after he submitted a written request for an accommodation. In March 2003, the ACLU of Utah and cooperating attorney Brian Barnard filed a lawsuit on Clark’s behalf arguing that because jail officials denied Mr. Clark his spiritually required diet and because the facility lacked policies or procedures regarding religious diets for inmates, the Iron County Jail had improperly restricted Clark’s ability to practice his religion. In January 2004, the administrators at Iron County Jail chose to change its policies, which now state that prisoners have the right to follow their prescribed religious diets.

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Ogden City v. Bruce Edwards and Bruce Edwards v. Ogden City
Free Speech
Frustrated by his inability to resolve a series of disputes with Ogden City officials, Ogden resident Bruce Edwards resorted to a different form of petitioning for redress of his grievances: he posted signs expressing criticism of the city on several vacant buildings that he owns in the downtown area. As city officials and Edwards sought to work out their differences, in December 2001, the city council enacted an ordinance that provided in part that “a vacant building and the premises shall be kept free of all interior or exterior signs, displays or graffiti,” subject to limited exceptions.

Ogden City initiated a criminal prosecution against Edwards for violating the new ordinance, and in a rare move, initiated a civil action as well, seeking a court order requiring Edwards to remove his signs. On February 6, 2002 – one day before the Olympic torch was to go through Ogden – Ogden City argued that Edwards’ signs detracted from the city’s efforts “to present itself as a clean, safe, and desirous environment for parents to raise families and businesses to enjoy prosperity,” and Second District Court Judge Parley Baldwin granted a temporary restraining order.

On February 26, 2002, we filed an answer and counterclaim to the charges against Edwards in which we argued that the city has not demonstrated a compelling interest that would justify the restriction of Edwards’ core political speech on his private property. We maintained that because the ordinance prohibits legal conduct protected by the Constitution, including lawful speech on private property, it is facially over broad. And finally, we argued that as applied to Edwards, the ordinance is not content-neutral, since the city’s enforcement of the ordinance against Edwards reveals its intent to suppress a viewpoint with which the city disagrees. On April 5, 2002, we filed a memorandum in opposition to plaintiff’s motion for preliminary injunction and in support of motion for partial summary judgment and on May 14, 2002 we submitted our reply memorandum in support of motion for partial summary judgment.

In a move that underscores the ordinance’s over breadth and viewpoint-bias, Ogden City amended the law in July 2002 to allow a television crew to hang signs on vacant buildings for filming a WB series. Upon the discretion of the mayor, vacant buildings - including those owned by Edwards - were now available for the posting of viewpoints sanctioned by the city.

On October 1, 2003, Second District Judge Parley Baldwin ruled in favor of Edwards and overturned Ogden City’s ordinance. In his decision, Judge Baldwin stated, “The sweeping inclusion of the ban understandably would dismay the average American, who given this nation’s proudly proclaimed history of special respect for individual liberty and private property, would be surprised to learn that he could not display flags, religious symbols, political placards, or even bumper stickers from the windows of his vacant building.”

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Citizens of Nebo School District v. Weaver
Lesbian and Gay Rights
In May 2001, a group of Utah County citizens asked the Utah Supreme Court to reverse a Utah district court decision dismissing their case against Nebo School District teacher Wendy Weaver. Weaver, who is a long-time teacher at Spanish Fork High School, received national attention when she successfully sued the Nebo County School District for requiring her to sign a gag order that prohibited her from discussing her sexual orientation in or outside of the classroom. Because Weaver had the courage to stand up to such blatant discrimination, a group of Utah County citizens filed a lawsuit in December 1997 seeking to have her banned from teaching altogether, and in 1998, the ACLU of Utah and cooperating attorney Rick Van Wagoner defended her from its groundless claims.

As in the initial lawsuit, appellants argued that “Because public teachers are examples for their students, a public teacher is not to support or encourage criminal conduct while in her official capacity or engage in private conduct that is known or should be known would materially and substantially disrupt the academic activities of the school where the teaching occurs.” The parents were now essentially asking the Utah Supreme Court to do what the experts at both the Division of Professional Licensing and the state school board refused to do – forbid Weaver from teaching school. On March 14, 2002, we filed our appellate brief with the court.

In April 2003, the Utah Supreme Court ended Weaver’s five-year legal battle. In a unanimous ruling, the court noted that any method for remedying school teacher violations already exists through professional boards; that no private right of action exists for students or parents of students to enforce requirements for public school employees; that the court is not a forum for mere advisory opinions; and that it had no authority to fire Weaver or order the school board to do so. The decision is an important reminder that individuals cannot look to the courts to enforce their prejudicial views about lesbian and gay teachers.

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Rick Curtis v. Utah State Child Support Guidelines Advisory Committee
Open and Public Meetings
Rick Curtis is a member of FOCUS, an organization comprised of divorced parents who are interested in policies that affect Utah’s child support and custody laws. In an effort to be active participants in the policy-making process, Curtis and other FOCUS members regularly attend the monthly public meetings of the Utah State Child Support Guidelines Advisory Committee. In the past, he and other FOCUS members have videotaped these meetings so that those who were unable to attend have an accurate account of the proceedings, and to allow those who were there to more meaningfully participate in future meetings by developing appropriate responses to the committee’s proposals. However, at the May, June, and July 2002 meetings, the committee refused to allow Curtis to videotape the proceedings, and indicated that it will not allow videotaping in the future without a court order.

On July 26, 2002, we filed a complaint alleging that in prohibiting videotaping, the committee was in violation not only of our state’s open and public meetings law, but also of the very spirit of our constitutional democracy, which relies upon the participation of an informed citizenry. That day we also filed a motion for a temporary restraining order so that Curtis could videotape the August 5, 2002 meeting, which was subsequently cancelled. On July 30, 2002, the court granted our temporary restraining order, and on September 3, 2002, we submitted our reply memo in support of plaintiffs’ motion for temporary restraining order and preliminary injunction. On September 5, 2002, we asked the court to grant a permanent injunction so that Curtis and other members of the public could videotape the committee’s monthly meetings. On February 20, 2003, Judge Leslie Lewis upheld open government and allowed videotaping of the Utah State Child Support Guidelines Advisory Committee meetings.

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First Unitarian Church v. Salt Lake City Corporation
Free Speech and Separation of Church and State
In April 1999, the Salt Lake City Council voted 5-2 to sell the downtown block of Main Street between North and South Temple to the Church of Jesus Christ of Latter-day Saints. Unbeknownst to city residents, it also sold the public’s First Amendment rights, immediately transforming the block into a space in which the LDS Church was granted the absolute and exclusive right to broadcast its own messages and, at the same time, ban all other viewpoints.

The Salt Lake City Planning Commission approved the transaction with the condition that the space be regulated like a public park. However, the final documents included a public easement in which the city gave the LDS Church unbridled discretion to prohibit, among other things, “loitering, assembling, … demonstrating, picketing, distributing literature, … erecting signs or displays, using loudspeakers or other devices to project music, sound or spoken messages, engaging in any … offensive, indecent, … lewd or disorderly speech, dress or conduct …” on Main Street. Importantly, these prohibitions applied only to members of the public. Under the conditions of the sale, the LDS Church could make exclusive use of the property for expressive purposes, “including, without limitation, the distribution of literature, the erection of signs and displays by [the LDS Church], and the projection of music and spoken messages by [the LDS Church]." Such one-sided restrictions violate both the free speech and the Establishment Clause of the First Amendment.

Also, by granting the LDS Church absolute control over the views expressed and the nature of the conduct permitted on the property, the city delegated some of its governmental powers to a church. After all, it would be church security and not the Salt Lake City Police Department who would determine when a visitor had violated the terms of the easement and impose punishment for that violation. Even if an easement were drafted with conditions consistent with a traditional public forum, the First Amendment’s demand for the strict separation of church and state does not allow the city to grant this traditional state function to a church.

In a lawsuit filed in November 1999 on behalf of the First Unitarian Church, Utahns for Fairness, and the Utah National Organization for Women, the ACLU of Utah argued that because of Main Street’s unique role in Salt Lake City’s history and its ongoing use as a public thoroughfare, it continues to be a public forum. In November 2000, we filed a motion for partial summary judgment.

In January 2001, U.S. District Judge Ted Stewart dismissed all of our claims, concluding that the city’s sale of Main Street and the LDS Church’s transformation of the street into a restricted religious plaza did not violate the plaintiffs’ free speech rights, the establishment clause, or the Fourteenth Amendment’s equal protection clause. On August 13, 2001, we filed an appeal with the Tenth Circuit Court of Appeals in which we asked that body to review the constitutionality