Utah v. Njord
| Decision Date | 04 November 2013 |
| Docket Number | Case No. 2:11–CV–394. |
| Citation | 980 F.Supp.2d 1356 |
| Parties | iMATTER UTAH, et al., Plaintiffs, v. JOHN NJORD, et al., Defendants. Alex Mateus for Positive Change Utah, Plaintiff, v. John Njord, et al., Defendants. |
| Court | U.S. District Court — District of Utah |
OPINION TEXT STARTS HERE
Held Unconstitutional
Brian M. Barnard, Stewart W. Gollan, Utah Legal Clinic, John M. Mejia, Leah M. Farrell, ACLU of Utah, Salt Lake City, UT, for Plaintiffs.
Kyle J. Kaiser, Utah Attorney General, Joni J. Jones, Salt Lake City, UT, for Defendants.
This case arises out of permitting problems that were encountered by two groups who wished to march down State Street in Salt Lake City to raise awareness about climate change. The Utah Department of Transportation (UDOT) required the two groups, iMatter Utah and Positive Change Utah, to obtain insurance for the events and to sign an indemnification form that would protect UDOT and the State of Utah from liability for certain actions that might occur during the march. The members of the climate change groups argue that the insurance and indemnification requirements are unconstitutional because these provisions burden the exercise of the Plaintiffs' rights under the First Amendment of the United States Constitution. The UDOT responds that the requirements are content-neutral time, place, and manner restrictions that do not impermissibly restrict the Plaintiffs' speech. The parties have submitted motions for summary judgment and for partial summary judgment. For the reasons stated below, the court finds that the insurance and indemnification requirements are not constitutionally sound and should not be enforced against the Plaintiffs as currently written.
iMatter Utah is an unincorporated, voluntary association that holds weekly meetings to discuss issues of climate change and to brainstorm strategies to engage the community on these issues. The Utah group is a chapter of iMatter, a nationwide organization that raises awareness about climate change and focuses on youth involvement. The Utah chapter includes a number of students who attend high school in Salt Lake City and several adult leaders, including the three named plaintiffs in this lawsuit: Ryan Pleune, Lauren Wood, and Linda Parsons.
iMatter Utah organized a parade scheduled for May 7, 2011. This Marade, as it was called by the group, sought to put pressure on Utah's political leaders to address climate change. The group planned to march along State Street past various key government buildings, including the Wallace F. Bennett Federal Building and the Salt Lake City and County Building. The group applied for and received a free expression permit from Salt Lake City for the event, but because State Street is also a Utah state highway and therefore falls under the State's jurisdiction, the permit was conditioned on the group's ability to obtain an additional permit from UDOT.
Before granting a permit to march on a state highway, UDOT requires an applicant to obtain a liability insurance policy for the event:
The applicant shall obtain and provide proof of liability insurance at time of application naming the “State of Utah, the Department and its employees” as additional insured under the certificate, with a minimum $1,000,000 coverage per occurrence and $2,000,000 in aggregate.
Utah Admin. Code r. 920–4–5. iMatter Utah made some inquiries about the cost of such a policy and determined that the premium would be approximately $2,500. This estimate is in dispute, and the Defendants assert that iMatter Utah could obtain a policy for a much lower premium of $365. The Honorable Clark Waddoups, during a hearing in which he denied the Plaintiffs' Motion for a Temporary Restraining Order, found that the Defendants' estimate for the insurance premium was more credible. ( See Hr'g Tr. 7–8, May 5, 2011, Dkt. 17.) Regardless of the amount of the premium, iMatter Utah contends that it is a voluntary association with no assets and that it is unable to pay for an insurance policy.
Mr. Pleune contacted UDOT and requested that the insurance requirement be waived on the grounds that the event consisted of political speech and free expression and was therefore protected by the First Amendment. UDOT responded that it did not “treat a political and free speech event any different from other events” and denied Mr. Pleune's request. UDOT explained that, for any use of a state road other than normal traffic movement, the liability insurance was mandatory and required by Utah state regulations. SeeUtah Admin. Code r. 920–4–5.
UDOT also required iMatter Utah to sign a Waiver and Release of Damages. The waiver stated that the participants in the event agreed to “release, remise, waive and forever discharge the State of Utah, the Utah Department of Transportation, the Utah Transportation Commission, the Utah Highway Patrol, and their officers, agents, and employees from all liability, claims, demands, actions or causes of action” that could result from participation in the march. (Waiver and Release of Damages, Ex. C to Am. Compl., Dkt. 20.) UDOT demanded that all participants in the event sign the waiver and required iMatter Utah to submit the application at least fifteen days before the scheduled parade.
After iMatter Utah filed this lawsuit, UDOT amended its regulations. UDOT no longer requires participants in a free speech event to sign the Waiver and Release of Damages. SeeUtah Admin. Code r. 920–4–6. Instead, UDOT prepared an indemnification form for use in free speech events. This form requires that a permittee:
indemnify, defend and hold the State of Utah [et al.] harmless from and against any claim or demand for loss, liability or damage ... arising out of or resulting from: (a) any act or omission by the Permittee, its officers, agents, employees or any persons under Permittee's control insofar as permitted by law concerning Permittee's use or occupancy of the state road right-of-way; and (b) from and against all actions, suits, damages and claims brought or made by reasons of Permittee's non-observance or non-performance of any of the terms of the Permit or the rules, regulations, ordinances and laws of the federal, state or local governments.
Indemnification Form, http:// www. udot. utah. gov/ main/ uconowner. gf? n= 1286223145 8643644 (last visited Oct. 31, 2013) [hereinafter Indemnification Form]. UDOT also withdrew its demand that all participants sign the form fifteen days before the event.
iMatter Utah did not obtain an insurance policy or sign the original waiver. Instead, the group filed this lawsuit a few days before the march and sought a temporary restraining order. Judge Waddoups denied this request on May 5, 2011. He found that iMatter Utah had not shown that it was substantially likely to succeed with its suit and that it had failed to meet its burden of establishing that the group would suffer irreparable harm. ( See Hr'g Tr. 3, 11, May 5, 2011, Dkt. 17.)
Despite failing to obtain a TRO, iMatter Utah proceeded with its Marade. The group chose to march along State Street on the sidewalks instead of the street itself, since the parties agreed that marching on the sidewalks did not require a UDOT permit. Approximately 150–200 people participated in the event. iMatter Utah asserts that obstructions as well as the narrowness of the sidewalk made it difficult for the group to march in formation or unfurl the group's banner.
iMatter Utah then organized a second march for September 24, 2011. The group planned to begin the procession with a rally on the front steps of the Utah State Capitol before proceeding down State Street past the Federal Building to the City and County Building for a second rally on Washington Square. iMatter Utah again applied for a permit application from UDOT and was again denied for its failure to obtain liability insurance and sign the indemnification form. Although UDOT had amended its original waiver requirement to accommodate free speech events as noted above, iMatter Utah maintained that the new indemnification form still did not pass constitutional muster. The group again marched down the sidewalks of State Street instead of in the road.
In August 2011, Plaintiff Alex Mateus formed a group known as Positive Change Utah to advocate for issues involving climate change. Mr. Mateus planned to have a parade on October 8, 2011, in which participants would march along State Street from the Utah State Capitol to the Salt Lake City and County Building. He applied for a permit from UDOT on August 29, 2011, after he was granted a conditional permit for his march from Salt Lake City. Like iMatter Utah, Mr. Mateus was required to obtain a liability insurance policy and sign an indemnification form. At the time, Mr. Mateus was unemployed and told UDOT that he could not afford the premium for an insurance policy, which he believed would cost in the range of $300 to $500. When UDOT denied his request for a waiver, Mr. Mateus initiated a lawsuit which was later consolidated with this case. The Defendants note that Mr. Mateus cancelled the October 8 parade and that Positive Change Utah has since been inactive.
iMatter Utah and Mr. Mateus have both filed Motions for Partial Summary Judgment (Dkt. 51 & 110) and the Defendants have filed a cross Motion for Summary Judgment (Dkt. 81). Mr. Mateus also filed a Motion to Strike Affirmative Defenses (Dkt. 46), which the court denies as moot because it presents arguments that are resolved by the various motions for summary judgment. Finally, the Defendants have filed a Motion to Exclude the Testimony of Dr. Andrew Utterback (Dkt. 78), an expert who submitted a report on behalf of the Plaintiffs.
The Plaintiffs argue that the insurance and...
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