We are very pleased to send you the following report outlining our 2000 activities. Each year, we are struck by both the diversity of our issues as well as the far-reaching impact of our work. Through litigation, advocacy, and public education, we’ve accomplished much in defending and extending constitutional protections in Utah. This report illustrates our attempts to seek a balance between formulating proactive approaches to ensuring the rights of all Utahns and responding to immediate threats to civil liberties.
ACLU of Utah 2000 Annual Report
Dear Friends of the ACLU of Utah
We are very pleased to send you the following report outlining our 2000 activities. Each year, we are struck by both the diversity of our issues as well as the far-reaching impact of our work. Through litigation, advocacy, and public education, we’ve accomplished much in defending and extending constitutional protections in Utah. This report illustrates our attempts to seek a balance between formulating proactive approaches to ensuring the rights of all Utahns and responding to immediate threats to civil liberties.
Space limits us from including the many issues that have never made the news or gone to court. Every day, we receive requests for help, and through referrals, phone calls, behind-the-scenes communications, and letters, we’ve been able to successfully resolve complaints that ultimately could have led to time- and resource-consuming litigation.
Our legal services, advocacy work, and public education are accomplished through the strong and enduring partnerships between our staff, board, cooperating attorneys, and volunteers who all express a strong commitment to monitoring and furthering civil rights in Utah. However, none of our work would be possible without our generous supporters, and together we should be justifiably proud of the following account of our steadfast defense of individual liberties. Thank you for joining us in fulfilling our mission.
The Battle Against English-Only Shifted from the Capitol to the Courtroom
Fueled by anti-immigrant sentiment, the English-only movement actively supports state and federal laws making English the exclusive language of government. In the summer of 1997, the movement gained currency in Utah when a state legislative interim committee passed a bill requiring that all official state documents, transactions, proceedings, meetings, and publications be in English only. The legislation stood out as one of the strictest English-only laws in the country, and even the sponsor was unclear about its effect on government services. What was clear was that if passed, the bill would compromise the rights of Utahns who are not yet proficient in English and limit effective communication between government representatives and the public.
The ACLU of Utah, along with a diverse coalition of organizations and individuals, was able to defeat the 1997 measure and similar English-only bills proposed during the 1998 and 1999 legislative sessions. Unfortunately, the immense financial resources of U.S. English, a principal leader in the English-only movement, made it possible to put the law on the 2000 ballot as a citizens’ initiative. On November 7, Utah voters passed Initiative A, "English as the Official Language of Utah." Like other English-only laws that have been passed throughout the country, Initiative A is based on disturbing and incorrect assumptions about immigrants and American Indians. And, by making English the exclusive language of government, the initiative poses the same problems as similar laws that courts have declared unconstitutional because it restricts and chills the ability of government agencies and officials to communicate and provide services in languages other than English, and because it denies limited English speakers fair and equal access to their government.
While Initiative A contains some exceptions to its ban on the use of languages other than English, they are vague and do not cover a host of situations in which translation and interpretation services makes sense. These include vocational rehabilitation, job referrals, information about water and energy conservation, assistance in receiving child support, and information about how to file claims of employment or housing discrimination.
On November 30, only a few days before the law was to take effect, we filed a lawsuit challenging its constitutionality on behalf of Alicia Alvarez, Salt Lake City Mayor Rocky Anderson, Salt Lake City Administrator for Minority Affairs Archie Archuleta, Ogden City Council Member Jesse Garcia, San Juan County Commissioner Mark Maryboy, the Multicultural Legal Center, State Senator Pete Suazo, the Utah Hispanic Chamber of Commerce, and Chair of the State of Utah Hispanic Advisory Council James Yapias. We also filed a request for a court order that the law not go into effect until the serious constitutional issues are resolved. In December, Third District Court Judge Ronald Nehring granted our request for a temporary restraining order, delaying implementation of the law. Our hope is that like the Utah State Legislature, the court will affirm the constitutional rights of all Utahns, regardless of their proficiency in the English language.
Salt Lake City School District Finally Allowed Gay-Supportive Student Clubs to Meet
In October, the Salt Lake City School Board reversed the most extreme steps taken anywhere in the country to prevent gay-supportive student clubs when it decided to change its policy and allow the clubs to meet at school. This decision ended nearly five years of controversy as well as two ACLU of Utah lawsuits brought on behalf of students who had sought to form gay-supportive student clubs at East High School. Most importantly, it finally gave all students access, on a non-discriminatory basis, to important non-curricular clubs that had been banned since 1996.
The conflict began in 1995 when a group of students at East High School formed a school club called the Gay/Straight Alliance (GSA). In 1999, we filed a lawsuit on behalf of the GSA and individual members Keysha Barnes and Ivy Fox challenging the Salt Lake City School District’s decision to ban all non-curricular clubs. As a consequence of our challenge, in 1999, the district acknowledged that students have the First Amendment right to express gay-positive viewpoints in approved student clubs. While the district maintained its ban on non-curricular clubs, a new state policy prohibiting discrimination against students and teachers on the basis of sexual orientation offered guidance to administrators, teachers, and students on creating forums for gay-positive viewpoints.
Taking the district at its word, early last year, a group of students put together an application for a curricular group to discuss subjects taught in the school’s curriculum from a gay-positive viewpoint. The students called their group the PRISM Club, which stands for People Respecting Important Social Movements. The group sought to extend and enhance the study of curricular subjects such as American Government and Law, U.S. History, and Sociology, by “talk[ing] about democracy, civil rights, equality, discrimination and diversity” through the perspectives of lesbians and gay men. However, despite its new policy and its promise not to discriminate against the expression of gay-positive viewpoints in curricular clubs, the district rejected the PRISM Club’s application. A comparison of the application with those of other curricular clubs that the district had approved demonstrated that in its rejection, the district had misapplied its own standards for approving curricular clubs. It was also evident that through this inconsistent application of its standards, the district was still seeking to effectively silence gay-positive viewpoints in the forum available to student groups.
In April, we filed a complaint on behalf of the PRISM Club, the East High Rainbow Club (a similar club whose application had been rejected in 1999), and individual students Jessica Cohen and Margaret Hinckley. In it, we argued that the rejection of the clubs’ applications violated the students’ First Amendment rights to free speech and association as well as district policy. We also filed a preliminary injunction asking that the club be allowed to meet pending a final resolution of the lawsuit at trial. In an April 26 order, U.S. District Judge Tena Campbell found that the district did not adequately articulate and apply its own policies in determining that the PRISM Club was not sufficiently curriculum-related, and she ordered that the club be allowed to meet. In late May, the PRISM Club hosted a thoughtful discussion about same-sex marriage, with the East High principal, several teachers, more than forty students, and at least one school board member in attendance.
Facing increasing legal pressure in response to their unconstitutional practices, as well as real world evidence that gay-supportive student groups are able to meet and engage in thoughtful and constructive dialogue, the Salt Lake City School Board not only decided to allow clubs expressing gay-positive viewpoints to meet, but also reversed its 1996 decision to ban all non-curricular clubs. As a result, the GSA and the PRISM Club both are now allowed to meet at East High School. Moreover, similar clubs are meeting at West High and Highland High Schools as well. It is due to the incredible courage of the student plaintiffs and other members of the East High GSA and PRISM Club that the Salt Lake City School District is now a forum in which students can express gay-positive viewpoints and help create a safer school environment for lesbian and gay youth.
Racial Bias in Police Practices Became a Significant Issue for Utahns
This past year, the ACLU received national recognition for making racial profiling in law enforcement – also known as “DWB” or “Driving While Black or Brown” – an important public concern. Eighteen months after the ACLU published its report, Driving While Black: Racial Profiling on our Nation’s Highways, state affiliates had joined the national campaign, working with individual law enforcement agencies, state legislatures, and communities to find ways to address increasing allegations of racial profiling. Utah was no exception, and like other states, our affiliate argued that the systematic collection of race data for all traffic stops is the first step towards identifying and eliminating racial profiling.
Reports from the Utah Taskforce on Racial and Ethnic Fairness, as well as accounts from our constituents, indicated that there is a very real problem in our communities with some law enforcement officers initiating traffic stops primarily on the basis of the driver’s race. Unfortunately, allegations of race-based traffic stops are too easily dismissed as lacking substantial evidence. We were therefore pleased to find out that State Representative Duane Bourdeaux had proposed legislation to require Utah law enforcement agencies to track race data for all traffic stops – and we were proud of the fact that because of Representative Bourdeaux’s persistence, Utah was one of the approximately twenty states considering similar legislation. In working at the legislative level, we acted as a sort of resource center and were able to educate and mobilize different community organizations to support the "Traffic Stops Statistics Act."
While Representative Bourdeaux’s bill ultimately failed, the publicity surrounding both his efforts and the public’s concerns helped make the issue an important one for Utahns, and both the Salt Lake City and St. George Police Departments agreed to voluntarily collect race data. In announcing the police department’s new policy, Salt Lake City Mayor Rocky Anderson echoed sentiments expressed by law enforcement agencies nationwide that had implemented similar reforms. “Whether or not the accusations of profiling are accurate,” he stated, “it is the perception itself that is the problem. We will do everything in our power to eliminate that perception.” It is our hope that more Utah law enforcement agencies will recognize that there is indeed a problem and join the over two hundred agencies already collecting race data in order to provide the community with solid, comprehensive information so that the discussion of racial profiling may move beyond the question of whether or not it occurs, to the determination of concrete ways in which we can address the current allegations. Such policies will benefit both law enforcement officers, who will be better able to accomplish their difficult jobs through an increase in public trust, and minority communities, who will no longer travel in fear of being stopped because of the color of their skin.
At the same time we were working in the public policy arena, we were approached by an individual who had directly experienced the humiliation of racial profiling. Mani Kang, a young man of Indian Sikh descent, had been stopped by the Utah Highway Patrol in May 1999 in Southern Utah, and in many ways, his experience exemplified the critical differences between “Driving While Brown” and “Driving While White.”
Just coming from a visit with friends and relatives in California, Kang, like many other tourists, was interested in photographing some of Southern Utah’s natural sites before returning to his home in Arkansas. Shortly after entering Utah, however, Kang’s plans changed when he noticed a Utah Highway Patrol cruiser coming toward him. He was surprised when the trooper turned his car around and began following him, as he had not been speeding, had been observing all other traffic laws, and knew that his license plate and registration stickers were current. As the trooper continued to follow him, Kang became uneasy, and his discomfort was only exacerbated by the remote and isolated nature of the area. Stopping at a gas station just south of Blanding, he was again surprised when the trooper also stopped and waited while Kang refueled and entered the store to pay. When he noticed the trooper inspecting his car, the clerk warned him that the patrolman would “be waiting for you somewhere up the road. … Anyone that doesn’t seem from around here, he goes after … especially if they’re persons of color.”
Kang resumed his journey, paying special attention to the speed limit and all traffic laws. Before long, however, he was pulled over by the same patrolman, Trooper James Curtis, who explained that he had pulled him over because he had been traveling in the left-hand passing lane. Trooper Curtis asked Kang many questions, including where he was going, his reasons for traveling in the area, and whether he owned the car he was driving. He then took Kang’s driver’s license and returned to his patrol car, where he was soon joined by a second trooper. The two discussed Trooper Curtis’s suspicions about Kang, and he resolved to conduct a search. Accordingly, Trooper Curtis returned to Kang’s car, gave him his license back along with a warning ticket, quickly muttered that Kang was “free to go,” and then asked him whether he would mind if he searched his car. When Kang agreed, having nothing to hide, Trooper Curtis ordered him out of the car, asked whether he had any drugs or weapons, and conducted a pat-down search. He then proceeded to conduct a thorough search of Kang’s car. Finding nothing, Trooper Curtis finally sent Kang on his way.
In June, we filed a complaint on Kang’s behalf against the Utah State Department of Public Safety (DPS) and Trooper Curtis. The complaint alleged that Kang’s stop, detention, seizure, and search were without reasonable suspicion or probable cause, and were therefore illegal and unconstitutional. The lawsuit further maintained that Kang was a victim of a larger DPS policy and practice of targeting certain individuals based principally on their perceived race or ethnicity, pulling them over for frivolous or non-existent moving or equipment violations, and then subjecting them to unlawful detentions and searches in an effort to find illegal drugs. In October, the case was settled favorably out of court. We are pleased that in this case, the Highway Patrol agreed to have judgment entered against it. However, we continue to be concerned that DPS’s policy and practice remain the same and that motorists of color are unfairly targeted. We therefore intend to continue our efforts to require the fair and honest compilation and reporting of traffic stop data that bear upon the insidious practice of racial profiling. Kang’s courage in publicizing his experience has only increased the awareness of and opposition to such practices.
Other Cases on our Legal Docket
State of Utah v. Ian Michael Lake
In May, Beaver County deputies seized Ian Lake’s computer, arrested the 16-year-old Milford High School student, and for seven days, incarcerated him in the Iron County Youth Detention Center. His crime? An Internet web site that he created at home and without the use of school resources that included parodic statements about classmates, teachers, and the Milford High School principal. Lake created his site as part of an escalating war of words and in response to other student-created web sites that contained disparaging remarks about his friend. Although his site contained no threats of violence or references to weapons, fears of a Columbine-type situation spread through the community, and upon his arrest, Lake was charged under Utah’s rarely used criminal libel statute.
In 1964, the U.S. Supreme Court clearly laid out the constitutional requirements for criminal libel laws. Following that decision, many statutes similar to Utah’s have been successfully challenged as unconstitutionally overbroad and vague because they purport to punish statements made with “ill will.” While perhaps tasteless and offensive – and even if made with ill will – Lake’s statements are not criminal. We believe that the overzealous prosecution of Lake reflects precisely the kind of heavy-handed censorship that the First Amendment forbids, and that it is even more important in the wake of the Columbine tragedy to preserve appropriate constitutional boundaries. At the request and with the full support of Lake and his father, who wishes to maintain the family’s authority to impose proper discipline in such matters, we filed a motion to dismiss Lake’s criminal charges on the ground that Utah’s criminal libel statute is unconstitutional on its face. The matter is currently before Fifth District Juvenile Court Judge Joseph E. Jackson. We hope within the coming year to bring the legal issues before the Utah Supreme Court and to have Utah’s anachronistic and unconstitutional criminal libel statute thrown out.
Utah Children v. Utah Division of Child and Family Services
In November 1999, we filed a lawsuit challenging the constitutionality of a Division of Child and Family Services’ (DCFS) administrative rule restricting state adoptions only to those homes in which all adults are related by blood, adoption, or legal marriage. The lawsuit was brought on behalf of three adult plaintiffs, Colleen Sandor, Steven Lazarus, and Michael Splitt, who, because of the arbitrary and unfair terms of the policy, were all denied the opportunity to offer loving homes to children. Because the rule effectively prohibited all lesbian, gay, and unmarried heterosexual couples from adopting children in state custody, it presented serious equal protection concerns. Unfortunately, the lawsuit was preempted when the Utah State Legislature took up the issue during their 2000 session.
While DCFS had insisted all along that the rule was not motivated by bias, its court papers were full of anti-gay rhetoric and relied to a large extent on discredited studies depicting lesbians, gays, and unmarried heterosexual couples as pathological and unfit to serve as adoptive parents. The Utah State Legislature codified this irrational fear and prejudice against lesbian, gay, and unmarried heterosexual parents, and even extended the DCFS policy by imposing an absolute ban on private and public adoptions to “a person or persons who are cohabiting in a relationship that is not a legally valid and binding marriage under the laws of the state.” Under this new state law, judges can no longer evaluate adoption proceedings on a case-by-case basis to determine what is in the best interests of a child.
Because this new state law superseded the administrative rule, our lawsuit was dismissed last August. Nonetheless, we remain extremely concerned about the discriminatory purpose and effect of the law and continue to believe that individualized placement decisions are in the best interests of children. Accordingly, we are on the lookout for incidents in which the rights of children and potential adoptive parents are denied out of fear and prejudice rather than for any reasoned determination.
First Unitarian Church v. Salt Lake City Corporation
In April 1999, Salt Lake City sold the downtown block of Main Street between North and South Temple to the LDS Church. In a lawsuit filed on behalf of the First Unitarian Church, Utahns for Fairness, and the Utah National Organization for Women, we argue that because of its unique history and ongoing use as a public thoroughfare, the block maintains its historical status as a forum for free speech activities, and that because of this status, the city cannot grant the LDS Church absolute control over the views expressed and the nature of the conduct permitted on the property. On the flip side, Salt Lake City and the LDS Church – which was granted intervenor status in January – maintain that the property is now a private religious plaza and therefore does not carry with it the constitutional requirements of a public forum.
After more than a year of construction, Main Street reopened to the public in October. Amidst all of the changes on the property, one thing remains the same: sidewalks still run between North and South Temple along the east and west borders of the new plaza. And, as part of the deed of sale, the public’s right to use these sidewalks as a thoroughfare at all times, both day and night, is protected by a public easement. In our November motion for partial summary judgment, we noted that the newly completed plaza is still an integral part of the downtown pedestrian grid, and that its sidewalks are equivalent in form and function to the sidewalks they replace as well as to other city-owned sidewalks. Because they still look like public sidewalks and the public has the right to use them as a public thoroughfare, the plaza sidewalks maintain their public function, and consequently, must be granted the protected legal status of a First Amendment public forum. As one court has stated, “Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.”
Craig Axford v. Salt Lake City Corporation
This was our second lawsuit challenging Salt Lake City’s decision to sell a downtown block of Main Street to the LDS Church. While our initial suit focused on the significant constitutional problems associated with the sale (see First Unitarian Church v. Salt Lake City Corporation), this challenge examined the city ordinance authorizing the sale. The lawsuit maintained that all of the conditions required by the ordinance had not been met, and until they were, the block could not legally be changed from a public street to a pedestrian plaza. Our argument was based on the crucial fact that just one month before the Salt Lake City Council adopted the ordinance, the City Planning Commission voted to recommend the sale, but only after adding a specific condition: “That there be no restrictions on the use of this space that are more restrictive than is currently permitted at a public park.” The ordinance, which was approved in April 1999, stated that, “This partial street closure is also conditioned upon compliance with all of the conditions identified by the Salt Lake City Planning Commission, a modified summary of which is attached hereto as Exhibit ‘B’.” However, the “modified summary” omitted the condition that the City Planning Commission had added, and the subsequent easement outlining the public’s use of and access to the space clearly contained restrictions that would never be permissible in a city park. Craig Axford, a city taxpayer and resident, asked that the city obey its own ordinance, and on the first anniversary of the city council’s approval of the sale, we filed a lawsuit on his behalf. In an effort to do away with the crucial inconsistency between the ordinance and the public easement, and without following the proper procedures necessary to take such an action, the council voted in May to amend the ordinance. While this action mooted Axford’s lawsuit, which was dismissed in September, it underscored the constitutional claims in our initial challenge.
Burton v. Exam Center Industrial
For the first time in the ACLU of Utah’s history, in 1999, the Utah Supreme Court requested that our organization file an amicus curiae brief in a case before the Court. At issue was whether Utah employers with fewer than fifteen employees are free to discriminate against their employees on the basis of age. Like its federal counterpart, the Utah Anti-Discrimination Act exempts businesses that employ fewer than fifteen people from its regulatory scheme. In June 1999, we filed a brief in which we argued that the strong public policy of the State of Utah prohibits age discrimination in employment, regardless of the size of the employer, and we therefore urged the court to recognize an age discrimination claim against small employers based on that strong public policy. Unfortunately, in January, the Utah Supreme Court ruled 3-2 that small employers are free to discriminate on the basis of age until and unless the Utah State Legislature acts to extend statutory protections to employees of small firms. In their vigorous dissent, Justices Durham and now retired Justice Stewart agreed with our reasoning and urged that state policy not include age discrimination by small employers.
Femedeer v. Department of Corrections
On August 29, the Tenth Circuit Court of Appeals dealt a crushing blow to due process and ex post facto rights for those convicted of sexual offenses in Utah. The ruling resulted from a 1998 state law requiring the Department of Corrections (DOC) to make public its registry of persons convicted of certain sex offenses. Unlike public notification laws in other states, Utah’s law did not require any sort of assessment to determine individuals’ risks of re-offending before publicizing their names and addresses. In addition, the DOC decided to satisfy its statutory obligations by posting the sex offender registry on its official website, thus making the information available not only to those who demonstrated a need to know it, but to anyone, anywhere, and for any purpose.
Femedeer (a pseudonym) was convicted of an offense covered by the law, but successfully completed the terms of his sentence and registered as a sex offender before the effective date of the new law. In September 1998, we filed a federal lawsuit on his behalf in which we claimed that publishing registry information via the Internet without regard to the risk posed by individual offenders constitutes ex post facto punishment and deprives offenders of their constitutional rights without due process of law. In court papers, both Femedeer and a noted expert in the field testified of the devastating impact that the widespread publication of conviction can have on offenders’ efforts to repair their lives and relationships and successfully rehabilitate.
In a ruling issued January 1999, U.S. District Judge Dale Kimball agreed with our ex post facto argument and ordered that the DOC identify and implement procedural safeguards to ensure compliance with constitutional requirements. The state appealed Judge Kimball’s decision, and twenty months later, the Tenth Circuit reversed his ruling. In its opinion, the court took issue with Judge Kimball’s assertion that posting information on the Internet constitutes punishment, stating, “Internet notification works merely a technological extension, not a sea change, in our nation’s long history of making information public regarding criminal offenses.” Utah’s sex offender registry is now one of the broadest in the country, and more than 4,500 people will be listed on the DOC’s website. One can only hope that this will not lead, as it has in other states, to instances of vigilantism against those convicted of sexual offenses or against people erroneously identified as sex offenders because of incorrect information on the website.
Skultin v. Bushnell
After nearly four years since being subjected to an illegal traffic stop and search on Interstate 70, Roy Skultin, Darcy Quimby, and Kellyjo Johnson have favorably settled their case against Utah Highway Patrol Trooper Lance Bushnell. In March 1996, Trooper Bushnell stopped their vehicle for attempting to pass a camper. He then asked Skultin to exit the vehicle and interrogated him about everything from his destination to his past criminal record. He gave Skultin a field sobriety test and continued his interrogation. Trooper Bushnell then requested and was denied permission to search Skultin’s vehicle. He ordered the two female passengers out of the car, searched the car, the trunk of the car, the luggage, both passengers’ purses, and Skultin’s wallet. After Skultin and his passengers were detained for nearly 90 minutes, they were allowed to proceed on their trip. Nothing illegal had been found, no arrest had been made, and no citation had been issued.
In October 1996, we filed a complaint on behalf of Skultin, Quimby, and Johnson. In a response to motions for summary judgment issued last January, Magistrate Judge Ronald Boyce issued a Report and Recommendation finding that while the original stop may have been justified, the plaintiffs were illegally detained without any reasonable suspicion that they had engaged in any illegal conduct. In unusually harsh language, Judge Boyce noted that while the officer might not have appreciated the appearance or some of the presumed activities of the plaintiffs, he did not have even a “scintilla” of evidence that they had done anything illegal. Judge Boyce also characterized certain of the officer’s arguments for the detention as “frivolous.” It is our hope that the Utah Highway Patrol will take notice of both this case and others against the Highway Patrol (see Mani Kang v. Utah State Department of Public Safety and Foote v. Spiegel) and review their stop and search policies.
Guido v. Utah State Fair Corporation
In the fall of 1998, John Guido and John Slevin sought to circulate petitions at the Utah State Fair in Salt Lake City. Fair officials charged the two with criminal trespassing and demanded that they purchase space at the fair before collecting signatures. After the criminal charges were dropped, we filed a suit against state fair officials and others arguing that by creating a situation in which individuals must pay a substantial fee in order to exercise their right to petition the government, they violated the First Amendment. In February, the case was favorably settled out of court.
Humane Society of Utah v. Utah Wildlife Board
In September 1998, the Utah Wildlife Board issued a press release and held a press conference to announce its unanimous support for Proposition 5, the successful ballot proposition that amended the Utah Constitution to require any initiative relating to the taking of wildlife to pass by a two-thirds supermajority vote. As a state agency, the Wildlife Board must abide by Utah’s Open and Public Meetings Act. The board’s endorsement, therefore, came as a surprise to groups opposing the proposition, as well as to the media, since it had never decided to endorse Proposition 5 in any public meeting. In October 1998, the ACLU of Utah filed a lawsuit on behalf of the Humane Society of Utah, the Predator Education Fund, the High Uintahs Preservation Council, and the Utah Society of Professional Journalists. The case has since been resolved, and our hope is that it will help to encourage public officials to act in accordance with the open meetings law when they issue statements on topics of significant public concern.
Van Gorden v. Utah State Fair Corporation
In 1996, after years of being arbitrarily excluded from the Utah State Fair, Kurt and Cindy Van Gorden were finally allowed to set up a booth to display the religious books they publish. However, they were accosted by fair officials and several officers from the Salt Lake City Police Department, and forcibly evicted solely because fair officials and patrons disliked their religious message. Cindy Van Gorden was physically assaulted, and the Van Gordens’ property was improperly seized. In September 1998, the ACLU of Utah filed a lawsuit against fair officials and individual police officers for their unconstitutional and illegal actions. We have defeated defendants’ motions to dismiss the case and have begun discovery.
Foote v. Spiegel
Kristin Foote has a mild form of cerebral palsy and a slight speech impediment. On Mother’s Day, 1994 while driving to a picnic with her 4-year-old daughter, Foote was stopped by a Utah Highway Patrol trooper on pretextual grounds. Based upon Foote’s speech pattern and a green tint on her tongue, the trooper concluded she was driving under the influence of drugs. She was detained, arrested, and later strip-searched. On a motion for summary judgment, U. S. District Judge David Winder held that the initial stop was reasonable under the circumstances but that the detention and strip-search were unconstitutional. The Tenth Circuit Court of Appeals affirmed Judge Winder’s ruling on the strip-search, but reversed his holding on the detention. Foote also sought damages for violation of the Americans with Disabilities Act (ADA).
The case was reassigned to Judge Tena Campbell, and our February 1999 jury trial resulted in a no cause verdict on the claims against the Highway Patrol trooper for illegal stop and detention, and in an award of only $1 nominal damages for the illegal strip-search ordered by another trooper and carried out by Davis County. We have appealed the jury’s no cause verdicts on the stop and detention, as well as the court’s finding for qualified immunity for the Highway Patrol trooper and the nominal damages for the strip-search. Importantly, as a result of our legal actions, both Davis County and the Utah Highway Patrol have rewritten their policies and procedures, which now prohibit strip-searches of everyone arrested for allegedly driving under the influence of drugs.
Critical to the success of our legal work are our volunteer cooperating attorneys, who are generous with both their time and expertise. In 2000, the following attorneys worked with our staff on ACLU of Utah cases:
Laura Milliken Gray
Milo Steven Marsden
Richard Van Wagoner
ACLU Lesbian and Gay Rights Project
ACLU of Northern California
Asian American Legal Defense Fund
Employment Law Center of the Legal Aid Society of San Francisco
Lambda Legal Defense and Education Fund
Mexican American Legal Defense and Education Fund
Multicultural Legal Center of Utah
The decisions made during the annual session of the Utah State Legislature have a lasting impact on our communities. As new laws are created and others repealed and rewritten, we try to ensure that these changes do not compromise, but rather strengthen our constitutional rights. During each session, we address a wide range of issues, and our organizing and lobbying efforts are aimed at educating lawmakers about the civil liberties implications of their proposals.
"Amendments to School Uniform Standards" instituted some good procedural requirements for public schools wishing to adopt school uniform policies. Namely, it requires schools to hold a public hearing on such a policy, which offers those families concerned about civil liberties the chance to request that the policy allow both protected political speech and religious articles of clothing, and include provisions for students who cannot afford the uniforms. Importantly, the legislation also requires that all school uniform policies have an opt-out clause for those parents and students who do not wish to participate in the program. The new law will go a long way in ensuring that school uniform policies are based on the voluntary cooperation of students and their parents, thus allowing public schools to avoid contentious battles over freedom of expression and parental rights.
"Obscenity and Pornography Complaints Ombudsman" drew nationwide attention by creating the country’s first Obscenity and Pornography Complaints Ombudsman. Working under the direction of the Attorney General, Utah’s new “pornography czar” will advise county and city governments and citizens about ways to “restrict, suppress, or eliminate obscenity and pornography in their communities,” and will create a comprehensive state moral nuisance law for the legislature’s review. Our fear is that the creation of such a position will cause an increase in costly litigation like the recent lawsuit against the American Fork and Lehi Movie Buffs video rental stores, in which the manager was charged with distributing pornographic films. While ultimately the lawsuit was unsuccessful and the manager was acquitted of all charges, the case threatened both privacy and First Amendment rights and drove the stores out of business.
"Private Prison Amendments" expanded the definitions of community correctional centers and correctional facilities to include not only those facilities that are directly operated by the Department of Corrections, but also those that are under contract with the department. The bill, therefore, takes the first step in codifying the fact that private correctional facilities must abide by the same state and administrative policies as those directly operated by the state, and that private correctional companies are accountable to the public in the same ways as the state department.
"Patriotic Education" requires that the pledge of allegiance be recited at the beginning of each day in all elementary schools, and encourages its recitation once a week in secondary schools. While it provides that students be advised of their right not to participate, we are troubled that they can be excused from reciting the pledge only “upon written request from the student’s parent or legal guardian,” and that the bill does not account for a teacher’s right not to participate in the mandatory pledge ceremony. Our concern is backed by a 1943 U.S. Supreme Court decision, which recognized that everyone, including students, has a First Amendment right to sit silently during the pledge of allegiance. This and subsequent court decisions make it clear that it is not for a parent or guardian to grant a student permission to decline to participate in the pledge, but rather, that each student has the right to make that important decision based on his or her conscience. It is ironic that in an effort to instill patriotism in Utah students, the legislature enacted a law that is counter to their constitutional rights.
"Identity Fraud" provided for important privacy protections by creating penalties for identity fraud, which the bill defines as occurring when a person “knowingly or intentionally: (a) obtains personal identifying information of another person without the authorization of that person; and (b) uses, or attempts to use, that information with fraudulent intent, including to obtain, or attempt to obtain, credit, goods, services, any other thing of value, or medical information in the name of another person without the consent of that person.” In a time of increasing privacy concerns, this legislation takes a step towards ensuring that our medical and financial records remain protected and private.
"Use of Driver License Information" changed the current law regarding the classification of motor vehicle records by declaring that this is protected information unless the vehicle owner submits a written request that it be public. Before the bill’s passage, records were public unless an owner specifically requested that their information be protected. The legislation therefore, shifts the responsibility from the vehicle owner to the state, and many privacy experts advocate for just this sort of “opt-in” as opposed to “opt-out” policy when it comes to publicizing or selling personally identifying information.
"Disease Testing Amendments" would have granted an emergency medical services provider who “has a significant exposure in the process of caring for a patient” the right to “require that the individual’s blood be drawn immediately,” and to “petition the district court for an order that the blood be tested” for HIV and Hepatitis. What was troubling about the bill was that it did not include any provisions for the destruction of the blood sample if the court refused the service provider’s petition, and it therefore threatened the patient’s due process and privacy rights.
"Population Standards for Redistricting" would have prohibited the state from using the most accurate census data for redistricting federal, state, and local legislative districts by requiring that these boundaries be based solely on enumerated census data (information from the actual forms returned to the United States Census Bureau). The legislation expressly prohibited the use of data resulting from the bureau’s use of scientific statistical sampling, which corrects the inevitable undercounting that occurs and brings a community closer to the constitution’s goals of one person/one vote and equal political representation.
"Abortion by Gynecologist" would have limited a woman’s right to a safe abortion by establishing the unnecessary requirement that all abortion providers be licensed gynecologists.
"Minor’s Access to Harmful Material on the Internet" attempted to regulate the intentional distribution to children of material harmful to minors via the Internet. The bill was very similar to a New Mexico statute regulating the “dissemination of material that is harmful to a minor by computer,” and that was successfully challenged by the ACLU. In a unanimous decision, the Tenth Circuit Court of Appeals found that that law violated both the First Amendment and the Commerce Clause of the constitution. Like the New Mexico law, this legislation had the potential to criminalize expression that is constitutionally protected for adults who do not have a realistic means of limiting the audience only to other adults. In addition, the legislation purported to regulate expression that occurs outside of the state, and it therefore could have caused an unreasonable and undue burden on interstate commerce.
At the ACLU of Utah, we would not be able to achieve as much as we do without our very productive working relationships with a number of Utah organizations. Our coalition work is extremely valuable, since it allows us to coordinate efforts, inform communities about our programs and services, and effectively resolve problems without resorting to litigation. The following exemplify just a few of our 2000 coalition efforts.
Over the years, low-income advocates have had a steady stream of complaints from men who have been picked up outside the downtown homeless shelter to do construction or landscaping work, and who have not received payment for their labor. Sometimes they are left at the work site, which can be some distance from downtown Salt Lake City; sometimes they are physically abused when they ask for their wages; and sometimes contractors do not return to the pick-up site when they have promised to bring their paychecks. It is reprehensible that this illegal practice affects our most vulnerable population, since the vast majority of victims are homeless, and many are monolingual Spanish-speakers who may not be U.S. citizens.
While under Utah law, the day laborers are fully entitled to their wages, language barriers, a fear of approaching the appropriate government agency because of questions about immigration status, and the lack of a permanent address have made this a particularly difficult problem to address. Last spring, the ACLU of Utah joined the Multicultural Legal Center and Utah Legal Services to determine how best to resolve the issue, and we worked on both sides of the problem by educating day laborers about their legal rights, and by working with the Salt Lake City Police Department, the Salt Lake City Prosecutors’ Office, and the Utah State Labor Commission. All of the government agencies have worked to accommodate victims of this crime, and since we first brought this issue to light, several individuals have received the money to which they were entitled and two prosecutions are underway. Because these types of complaints will inevitably increase in the spring when there is a higher demand for landscaping work, we will continue to monitor this issue.
Prison and Jails
Early in the year, we began an extremely valuable partnership with the volunteer organization Prisoner Information Network, or PIN. The relationship came out of our involvement in the Department of Corrections’ Community Forum meetings, which bring together prison administrators and inmate advocates each month to discuss important issues. In talking with other advocacy groups, it became evident that inmate complaints were being sent to many different organizations, thus causing duplicate work for organizations with limited resources and making it more difficult to identify systemic problems.
Working with and providing support for PIN has streamlined our intake process – inmate correspondence makes up over half of our total annual intake – and has helped make our meetings with prison and jail officials more productive. Throughout the year, we’ve been able to successfully resolve complaints regarding issues such as visitation rights, access to medication, sufficient exercise time, and the use of solitary confinement. Also, by working with PIN, as well as the Disability Law Center and the National Alliance for the Mentally Ill, we are currently coordinating an inmate survey to determine the status of medical and mental health services. We are optimistic that by presenting a coordinated and united front on important issues concerning prison and jail inmates, we will be able to positively impact the policies and procedures in Utah’s correctional facilities.
Winter Olympic Games
Several months before Salt Lake City was awarded the 2002 Winter Olympic Games, the ACLU of Utah joined low-income, disability, and minority advocates to form Salt Lake Impact 2002 & Beyond. Since 1995, this coalition has expressed concern about the impact the games will have on Utah residents, and has advocated for a responsible, community-wide Olympic event. Our participation in Salt Lake Impact has helped us clarify our priority Olympic issues, which stem largely from the massive law enforcement presence that such an event necessitates. By working with our coalition partners, we have begun to design an effective intake process and determine ways in which we can make sure that Salt Lake City’s more vulnerable communities, such as the homeless, are not negatively affected by this international event.
Of special interest is how cities will respond to protected free speech activities and acts of civil disobedience. The Salt Lake Olympic Committee’s (SLOC) 500 days celebration last September offered protesters, law enforcement agencies, and our organization a trial run in determining the best ways to accommodate public safety needs and lawful free speech activities. Despite assurances from SLOC, the Utah Olympic Public Safety Command (UOPSC), and others that the First Amendment rights of protesters will be respected, we were troubled by a December Deseret News article, which stated that during the Olympics, UOPSC will use two “mobile field forces” to deal with the problems of “massive protests and other disasters.” The equation of peaceful protesters exercising their First Amendment rights with “disasters” indicates that we have a lot of work to do to ensure a constitutional Olympic event.
Adam “Mickey” Duncan
We were saddened last year by the passing of one of Utah’s greatest civil libertarians, Adam “Mickey” Duncan. As an attorney and two-term Utah State Senator, Duncan worked tirelessly to protect minorities from injustice, advocated for the separation of church and state, fought for the abolition of the death penalty, and proposed legislation to make it illegal for public accommodations to refuse services based on gender, race, or religion.
In 1953, Duncan founded the Utah Affiliate of the American Civil Liberties Union. And, in 1995, the ACLU of Utah established an award in his name to honor those attorneys who share Duncan’s commitment to civil liberties. His life encourages all of us to remain vigilant in the protection of individual freedoms, and while Utah is unquestionably a sadder place without Mickey Duncan, it is also a better place because he was here.
Ivy Fox, one of the plaintiffs in our case challenging the Salt Lake City School District’s decision to ban the East High Gay/Straight Alliance, was also one of the winners of the first annual ACLU College Scholarship for Youth Activism. In receiving the award, Ivy joins eight high school students from around the country who received a $4,000 college scholarship for their outstanding contributions in the struggle for civil liberties and the rights of young people.
Ivy, who is currently a freshman at Smith College, said of her role in the GSA case: “I believed it was important for me to take a leadership role in promoting diversity and freedom. … Bigotry is still very much alive, but through education, everyone has the power to fight it.” We are proud of Ivy’s work and know that the commitment to equality that she demonstrated during her time at East High School will only strengthen.
At its 2000 awards dinner, Utahns for Choice honored David Tundermann, our board president for the past three years and board member for almost nine years. Specifically, Utahns for Choice honored him for his role in the Roe v. Wade decision. While at Yale Law School, David worked for The Population Council, where he studied laws regarding access to family planning services. In 1971, he met and joined the Roe v. Wade litigation team, led by Sarah Weddington, where he provided research support and wrote amicus curiae briefs for the case.
While David leaves his position as ACLU of Utah president, he remains on the executive committee. The award from Utahns for Choice only reiterates his long-term commitment to both this organization and civil liberties in general, and we’re honored to work with a man who had a role in the historic decision granting women the right to safe and legal abortions.
Combined ACLU of Utah Union & Foundation Financial Report (Unaudited)
As a private, non-profit organization, the ACLU of Utah receives no government funding and never charges its clients for legal representation. Our existence depends entirely upon private donations, foundation grants, court-awarded legal fees from successful cases, and membership fees from Utahns who are dedicated to preserving fundamental civil liberties. It is no exaggeration to state that our financial and volunteer supporters have enabled us to accomplish everything detailed in this annual report.
Contributions and Membership $270,400.00
Legal Awards $25,300.00
Interest and Other $24,900.00
TOTAL INCOME $349,600.00
Program Services $227,500.00
TOTAL EXPENSES $271,400.00
The American Civil Liberties Union, founded in 1920, is a nationwide, nonpartisan organization dedicated to working in the courts, legislatures, and communities to defend and preserve the individual rights and liberties guaranteed to all people in this country by both the Constitution and the laws of the United States.
The ACLU of Utah was chartered in 1953 to work on constitutional issues that are pertinent to those living in this state. Our priorities include freedom of speech and expression, the separation of church and state, freedom of religion and association, the right to privacy, safe prison and jail conditions, and equal protection and due process of the laws.
Carol Gnade, Executive Director
Stephen Clark, Legal Director
Cori Sutherland, Deputy Director
Janelle Eurick, Staff Attorney
Laurie Wood, President
Marc Hoenig, Vice President
Suzanne Marelius, Treasurer
David Tundermann, At Large Executive Committee Member
Janet Wolf, At Large Executive Committee Member
Jill Sheinberg, National Board Representative
Lincoln Hobbs, Legal Panel Director
355 North 300 West #1
Salt Lake City, UT 84103