Utah Animal Rights v. Salt Lake City Corp.

Decision Date16 June 2004
Docket NumberNo. 02-4174.,02-4174.
Citation371 F.3d 1248
PartiesUTAH ANIMAL RIGHTS COALITION, a Utah non-profit corporation, Plaintiff-Appellant, v. SALT LAKE CITY CORPORATION; Shawn McDonough; and John Does I-X, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Brian M. Barnard (James L. Harris, Jr. with him on the brief), Utah Legal Clinic, Salt Lake City, UT, for Plaintiff-Appellant.

Steven W. Allred (Martha S. Stonebrook with him on the brief), Salt Lake City Attorneys' Office, Salt Lake City, UT, for Defendants-Appellees.

Before SEYMOUR, HENRY, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

In February of 2002, many of the world's most talented athletes, along with spectators, journalists, and world leaders, descended on Salt Lake City, Utah, for the 2002 Winter Olympics. In addition to the officially scheduled Olympic events, many hundreds of groups and individuals used the occasion to speak out on issues of concern through street demonstrations, distribution of pamphlets, evangelism, and other modes of expression. One of those groups was Appellant, the Utah Animal Rights Coalition ("UARC"), an advocacy organization devoted to making "the plight of animals in the world known to people in Utah." The Appellees, defendants below, are Salt Lake City and certain officials who had the responsibility of determining when and where various groups would be permitted to demonstrate, and of issuing permits accordingly. The question is whether the slow pace of the permit process violated the First Amendment.

Almost a year before the Olympics — and well before the City had determined where Olympic events would be held — UARC submitted an application for permits to demonstrate on public property at five specified locations. For approximately eight months, the City took no action on UARC's application. The City then denied UARC's application on account of conflicts with Olympics-related activities, and suggested alternative sites for UARC's demonstrations. UARC filed an amended application and ultimately received permits to demonstrate at four locations, two of them at or near the locations requested in the amended application. Only two claims are at issue in this case: (1) a facial challenge to the then-operative ordinance, on account of its lack of written deadlines for processing permit applications, and (2) an as-applied challenge contending that the time elapsed in processing UARC's permit application, from March 9 to November 15, 2001, was unconstitutionally prolonged.

The district court granted summary judgment to Defendants with respect to both claims. The court held that UARC lacked standing to bring either claim. In the alternative, the court granted summary judgment on the facial claim on mootness grounds, and on the merits of the as-applied claim. We affirm, but not precisely on the same grounds. We hold that neither standing nor mootness precludes resolution of UARC's claims, but that the claims fail on the merits.

A. Salt Lake City's Permit Ordinance

UARC's application to conduct demonstrations on public property during the Olympics was processed in accordance with Salt Lake City Code § 3.50 (sometimes referred to hereafter as "the Ordinance"). The Ordinance was substantially amended in May, 2002, after the Olympics were over. The following is a summary of the relevant provisions in effect at the time.

In setting procedures for the issuance of permits, the Ordinance distinguishes between "commercially related" and "free expression" activities, and further distinguishes between "short notice" and "advanced planned" activities. UARC's permit was governed by the standard for advanced planned free expression activities, Section 3.50.130:

Standards for issuance of permit — Advanced planned free expression activities.

The events coordinator shall issue an advanced planned free expression activity permit if the events administrator finds that the provisions of Sections 3.50.110A (arterial routes), 3.50.110B (interference with other events), and 3.50.110C (movement of police and fire vehicles) are met.

Sections 3.50.110A and C assure that major traffic routes remain accessible and that demonstrations do not interfere with public safety vehicles. Section 3.50.110B prohibits interference with:

1. Any other commercially related special event,

2. Any other event for which a permit under this chapter has already been granted, [or],

3. The providing of city services in support of other scheduled events, including free expression activities and unscheduled governmental functions such as visits of chiefs of state.

These provisions give priority to commercially related special events, certain governmental functions, and other events for which a permit was previously granted. They make no reference to the content of the expressive activity, and do not authorize the events coordinator to take the content of the expressive activity into account. In accordance with this provision, the City gave priority to the official Olympic events organized by the Salt Lake Organizing Committee ("SLOC"), which had submitted a prior application for a special event permit at various locations in the City.

Once the official Olympic events and provision for public health and safety services were established, the City allocated rights to use public property among the many competing applicants, including UARC. Conflicts among permit applications were governed by § 3.50.180:

Permit — Conflicting applications.

A. Conflict Priority Evaluation. When one or more applications for a commercially related special event or advanced planned free expression activity are received for the same day and for locations or routes which are conflicting, the events coordinator shall issue a permit, subject to the other provisions of this chapter, based on the following order of priorities:

1. Events planned, organized or presented by state, federal or city governmental entities or their agents if the governmental request is made in good faith and not with the intent or purpose of improperly chilling constitutionally protected rights of competing petitioners;

2. Historic usage commercially related special events or advanced planned free expression activities where the same applicant or sponsor has been granted use of a particular city forum at a particular date, time and place for more than fifteen consecutive years;

3. If neither subsections A1 or A2 are applicable, priority shall be given to a first-in-time filing.

B. Consideration for Unsuccessful Applicant. After denying the request for the time, place, manner and date, the events coordinator shall authorize the unsuccessful applicant to use an appropriate public forum at another suitable time place, date and manner.

Like Section 3.50.130, this section is entirely content-neutral. Although it gives priority to government-sponsored and historic-usage events, these categories are not based on the content of the intended speech; in other respects priority is based on the principle of first come, first served.

The Ordinance also contains provisions for expedited review of the events coordinator's determinations:

Expedited Appeals — Free Expression Activities:

[1] A. Determination of Claims: The following determinations on claims regarding free expression activities may be appealed as provided below:


2. A claim by an applicant that the events review committee's denial of a proposed route or location for an activity constitutes an inappropriate or unlawful restriction of time, place or manner restriction [sic]; or

3. Any other claim by an applicant that any action by the city regarding the proposed free expression activity impermissibly burdens constitutionally protected rights of the applicant, sponsor, participants or spectators.

B. Process: The city acknowledges an obligation to process appeals regarding free expression activities promptly so as to not unreasonably inhibit or unlawfully burden constitutionally protected activities. To the extent possible, the appeals process related to free expression activities shall be that specified in section 3.50.1901 of this chapter, with the times modified by the events coordinator to allow the necessary expeditious processing. In the event that the applicant for a free expression activity requires even more expeditious processing of an appeal, upon the request of the applicant, the city attorney may advise the mayor or the mayor's designee to make immediate consideration of the appeal.

Code § 3.50.210. Applicants have the right to seek judicial review of the outcome of this appeal process. See, e.g., Walker v. Weber County, 973 P.2d 927, 929-30 (Utah 1998) (holding that the writ provision of Rule 65B was properly invoked to allow Utah Supreme Court to determine whether county officials improperly changed a ballot initiative); Renn v. Utah State Bd. of Pardons, 904 P.2d 677, 682 (Utah 1995) (suggesting that an appeal of decision was also available under the writ provisions of Rule 65B of the Utah Rules of Civil Procedure); KUTV, Inc. v. Conder, 668 P.2d 513, 517 (Utah 1983) (noting that a writ was properly invoked in First Amendment context when no other adequate remedy by way of appeal was available).2

It is undisputed that the Ordinance, as it existed at the time of this dispute, contained no requirement that the events coordinator process permit applications for "advanced planned free expression activities" within any particular time.

On May 7, 2002, after the events at issue in this case but before the district court held argument on the motions for summary judgment, the City amended its ordinance concerning special events to require all permits for demonstrations to be acted upon within 28 days. See Affidavit of Boyd A. Ferguson ("Ferguson Aff."), App. 137-40.

B. UARC's Application

Almost a year in advance of the Olympics, on March 9, 2001, UARC applied for permits to...

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