Brigham Young University Law School BYU Law Digital Commons Utah Court of Appeals Briefs 2006 Salt Lake City Mission v. Salt Lake City, Mayor Rocky Anderson, former Mayor Corradini, Sherrie B. Reich, B.L. Smith, Randy Taylor, Marge Harvey, Kim Guess, and ALicia Orgill : Brief of Appellee Utah Court of Appeals Follow this and additional works at: https://digitalcommons.law.byu.edu/byu_ca2 Part of the Law Commons Original Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generated OCR, may contain errors. Evelyn J. Furse; Lynn H. Pace; Salt Lake City Attorney\'s Office; Attorneys for Defendants/ Appellees. Matthew Hilton; Jaqueline F. de Gaston; Affordable Legal Services; Attorneys for Plaintiffs/ Appellants. Recommended Citation Brief of Appellee, Salt Lake City Mission v. Salt Lake City, Mayor Rocky Anderson, former Mayor Corradini, Sherrie B. Reich, B.L. Smith, Randy Taylor, Marge Harvey, Kim Guess, and ALicia Orgill, No. 20060962 (Utah Court of Appeals, 2006). https://digitalcommons.law.byu.edu/byu_ca2/6905 This Brief of Appellee is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Court of Appeals Briefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available at http://digitalcommons.law.byu.edu/utah_court_briefs/policies.html. Please contact the Repository Manager at [email protected] with questions or feedback. IN THE UTAH SUPREME COURT SALT LAKE CITY MISSION and Pastor Wayne Wilson. BRIEF OF APPELLEE Plaintiffs-Appellants, SALT LAKE CITY CORPORATION vs, SALT LAKE CITY, Mayor Rocky Anderson, former Mayor Corradini, Case No. 20060962 Sherrie B. Reich, BX. Smith, Randy Taylor, Marge Harvey, Kim Guess, and Alicia OrgilK Defendants and Appellees. EVELYN J. FURSE, #8952 Senior City Attorney LYNN H. PACE, #5121 Deputy City Attorneys 451 South State, Suite 505 Salt Lake City, UT 84111 Telephone: (801) 535-7788 Attorneys for Defendants/Appellees Matthew Hilton #3655 Participating Attorney with the Rutherford Institute ^95 Pin Oak Circle Kaysville, UT 84037 Attorney for Plaintiffs/Appellants FILED UTAH APPELUTE COURTS AUG 2 S 2007 IN THE UTAH SUPREME COURT SALT LAKE CITY MISSION and ; Pastor Wayne Wilson, ] ) BRIEF OF APPELLEE Plaintiffs-Appellants, ]) SALT LAKE CITY ) CORPORATION vs. ] SALT LAKE CITY, Mayor Rocky ] Anderson, former Mayor Corradini, ]) Case No. 20060962 Sherrie B. Reich, B.L. Smith, Randy ] Taylor, Marge Harvey, Kim Guess, ] and Alicia Orgill, ] Defendants and Appellees. ] EVELYN J. FURSE, #8952 Senior City Attorney LYNN H. PACE, #5121 Deputy City Attorneys 451 South State, Suite 505 Salt Lake City, UT 84111 Telephone: (801) 535-7788 Attorneys for Defendants/Appellees Matthew Hilton, #3655 Participating Attorney with the Rutherford Institute 395 Pin Oak Circle Kaysville, UT 84037 Attorney for Plaintiffs/Appellants THE PARTIES Plaintiffs Defendants Salt Lake City Mission Salt Lake City Corporation Rev. Wayne Wilson Mayor Deedee Corradini Roger Thompson Mayor Rocky Anderson Kim Guess McDonald Brothers Salt Lake City Redevelopment Agency Alice Steiner TABLE OF CONTENTS Table of Authorities Jurisdiction Statement of the Case TABLE OF AUTHORITIES CASES City ofFloresv. Bourne, 521 U.S. 507 (1997) 29 Employment Div. v. Smith, 494 U.S. 872 (1990) 34, 37 First Assembly Of God Of Naples, Florida, Inc. v. Collier County, Florida, 20 F.3d 419 (11th Cir. 1994) 34,35,36 Homv. UtahDept. of Pub. Safety, 962 P.2d 95, 99 (Utah Ct. App. 1998) 19 Johnson v. Hermes Assocs., 2005 UT 82 21 Lakewood, Ohio Congregation of Jehovah's Witnesses, Inc. v. City of Lakewood, Ohio, 699 F.2d 303, 307, cert, denied, 464 U.S. 815, 104 S.Ct. 72, 78 L.Ed.2d 85 (1983) 31, 32 Lemon v.Kurtzman, 403 U.S. 602 (1971) 29, 30 Lovendahl v. Jordan Sch. Dist., 2002 UT 130, at f 50, 63 P.3d 705, 717 7 Maverik Country Stores, Inc. v. Indus. Comm'n, 860 P.2d 944, 947 (Utah Ct. App. 1993) 19, 21, 23 Messiah Baptist Church v. County of Jefferson, 859 F.2d 820 (10th Cir. 1988) 29, 30, 32, 33, 34 Murphy v. New Milford Zoning Com'n. 402 F.3d 342, 347-353 (2d Cir. 2005) 26, 33 Nebeker v. Utah State Tax Comm'n, 2001 UT 74, % 14, 34 P.3d 180, 184 21, 22, 23 Patterson v. Am. Fork City, 2003 UT 7, Iflf 16-17, 67 P.3d466 18, 19, 25, 26, 27 Pub. Utils. Comm'n of California v. United States, 355 U.S. 534, 539-40, 78 S.Ct. 446, 2 L.Ed.2d 470 (1958) 22 Redwood Gym v. Salt Lake County Comm'n, 624 P.2d 1138, 1148 (Utah 1981) 28 Skull Valley Band of Goshute Indians v. Leavitt, 215 F. Supp. 2d 1232, 1241 (D. Utah 2002) 28 State v. Green, 2004 UT 76,170 & n. 1, 99 P.3d 820 29 Tax Comm'n v. Iverson, 782 P.2d 519, 524 (Utah 1989) 21 TDM, Inc. v. Tax Comm'n, 2004 UT App 433, f 5 103 P.3d 190 24 Texas v. United States, 523 U.S. 296, 300 (1998) 28 Thomas v. Union Carbide Agric. Prod. Co., 473 U.S. 568 (1985) 28 United States v. Wilson, 244 F.3d 1208, 1213 (10th Cir. 2001) 28 Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct App. 1989) 19 Waco Ind. Sch. Dist. v. Lester & Coque Gibson, 22 S.W. 3d 849, 850 (Tex. 2000) 28 Walker Bank & Trust Co. v. Taylor, 390 P.2d 592, 595 (Utah 1964) 22, 23 Wasatch Crest Ins. Co. v. LWP Claims Adm'rs Corp., 2007 UT 32, f 6, 158 P.3d 548 1 STATUTES 42 U.S.C. § 1983 18, 26 Utah Code Ann. § 10-9(a)-801(l) 25 Utah Code Ann. § 10-9a-801(l) 18 Utah Code Ann. § 78-2-2(3)0) (2002) 1 OTHER AUTHORITIES Salt Lake City Code §21A.12.010 3 Salt Lake City Code §21 A. 16.010 3,4,20 Salt Lake City Code § 21A.16.040 15, 20 Salt Lake City Code § 21 A.54.010 4 Salt Lake City Code § 21A.54.160 14, 20 Salt Lake City Code § 21A.62.040 4, 10 RULES Utah R. Civ. P. 12(b)(1) 28 UtahR. Civ. P. 56 4 UtahR. Civ. P. 7(c)(3)(A) 4,5,7 UTAH CONSTITUTIONAL PROVISIONS Article I § 1 1 Articlel§4 2 Article III § 1 2 FEDERAL CONSTITUTIONAL PROVISIONS First Amendment 3, 17, 29, 32, 35 Fourteenth Amendment 3, 17 JURISDICTION This Court has jurisdiction pursuant to Utah Code Annotated section 78-2- 2(3)0) (2002). ISSUE PRESENTED FOR REVIEW Did the district court correctly grant summary judgment on all claims in favor of Salt Lake City Coiporation based either on a lack of ripeness and the failure to exhaust administrative remedies or on the merits of both the state and federal constitutional claims? Standard of Review The Supreme Court reviews the district court's grant of summary judgment as a question of law for correctness. Wasatch Crest Ins. Co. v. LWP Claims Adm'rs Corp., 2007 UT 32, ^ 6, 158 P.3d 548. RELEVANT CONSTITUTIONAL PROVISIONS, STATUTES, ORDINANCES, RULES, AND REGULATIONS Utah Constitution Article I § 1 All men have the inherent and inalienable right to enjoy and defend their lives and liberties; to acquire, possess and protect property; to worship according to the dictates of their consciences; to assemble peaceably, protest against wrongs, 1 and petition for redress of grievances; to communicate freely their thoughts and opinions, being responsible for the abuse of that right. Article 1 § 4 The rights of conscience shall never be infringed. The State shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; no religious test shall be required as a qualification for any office of public trust or for any vote at any election; nor shall any person be incompetent as a witness or juror on account or religious belief or the absence thereof. There shall be no union of Church and State, nor shall any church dominate the State or interfere with its functions. No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment. No property qualification shall be required of any person to vote, or hold office, except as provided in this Constitution. Article III $ 1 First:-Perfect toleration of religious sentiment is guaranteed. No inhabitant of this State shall ever be molested in person or property on account of his or her mode of religious worship; but polygamous or plural marriages are forever prohibited. 2 United States Constitution First Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Fourteenth Amendment All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Salt Lake City Code of Ordinances § 21A.12.010 et seq. Administrative Interpretations Because of its length, section 21 A. 12.010 et seq.