Edward L.

Carter, Utah State Bar # 9871

KEEN LAW OFFICES, LLC
39 S. 400 West
Orem, UT 84058
Phone: (801) 374-5336
Mobile: (801) 602-4792
ed@keenlegal.com
Attorney for Utah Headliners Chapter of Society of Professional Journalists, Fox 13
KSTU-TV and Deseret News

IN THE UTAH SUPREME COURT

SOUTHERN UTAH WILDERNESS )

ALLIANCE, ) MEMORANDUM IN SUPPORT
Appellant/Cross-Appellee, ) OF MOTION FOR LEAVE TO
) FILE BRIEF OF AMICUS
v. ) CURIAE
)
KANE COUNTY COMMISSION, )
Appellee/Cross-Appellant, ) Appellate Case No. 20180454-SC
)
and ) [Related Appeal: No. 20180410-SC]
)
GARFIELD COUNTY COMMISSION, ) District Court No. 170600020
)
Appellee

The Utah Headliners Chapter (“Chapter”) of the Society of Professional Journalists

(“SPJ”), Fox 13 KSTU-TV and the Deseret News (collectively, “Proposed Amici”)

respectfully submit this Memorandum in support of their Motion asking the Court for leave

to file a Brief of Amicus Curiae in support of the Appellant/Cross-Appellee Southern Utah

Wilderness Alliance (“SUWA”) in the above-captioned case.

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 INTEREST OF AMICI

The Society of Professional Journalists is the nation’s most broad-based

journalism organization, dedicated to encouraging the free practice of journalism and

stimulating high standards of ethical behavior. SPJ is dedicated to the perpetuation of a

free press as the cornerstone of our nation and our liberty. To ensure that the concept of

self-government outlined by the United States Constitution remains a reality into future

centuries, SPJ believes that the American people must be well-informed in order to make

decisions regarding their lives and their local and national communities. It is the role of

journalists to provide this information in an accurate, comprehensive, timely, and

understandable manner.

The mission of SPJ is to encourage a climate in which journalism can be practiced

freely and fully; to promote the flow of information; to stimulate high standards and

ethical behavior in the practice of journalism; to foster excellence and to encourage

diversity among journalists; to inspire successive generations of talented individuals to

become dedicated journalists; and to maintain constant vigilance in protection of First

Amendment guarantees of freedom of speech and of the press.

The Utah Headliners Chapter of the Society of Professional Journalists shares the

goals of national SPJ on a local level. The Chapter has been a leader for decades in

advocating for open government in Utah. The Chapter is actively involved in wide-

ranging efforts to ensure the public’s right to know about government actions.

The Deseret News is the first news organization and longest continuously

operating business in the state of Utah. The Deseret News offers news, information,

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commentary, and analysis from an award-winning team of reporters, editors, columnists,

and bloggers. Fox 13 KSTU-TV operates a statewide multimedia news operation based

in Salt Lake City. The Fox 13 KSTU-TV newsroom produces dozens of hours of local

broadcast news each week.

The Proposed Amici have great interest in the subject matter of this litigation. The

Proposed Amici regularly attend meetings of various county commissions across Utah.

The Proposed Amici will be affected by the Court’s decision in this matter, given issues

of standing and other aspects of the Utah Open and Public Meetings Act, Utah Code Ann.

§§ 52-4-101 et seq. The Proposed Amici desire to illuminate for the Court certain legal

and policy issues that are vital to the Proposed Amici’s future functioning related to the

Open and Public Meetings Act.

PARTICULAR STATEMENT OF FACTUAL GROUNDS

SUWA’s Complaint against the Kane County Commission and Garfield County

Commission sought a declaratory judgment that commissioners had violated the Utah

Open and Public Meetings Act when they met as quorums with U.S. Department of the

Interior Secretary Ryan Zinke in May 2017. SUWA asserted that the county

commissions had not given public notice of their meetings with Secretary Zinke, and

members of the public were not generally allowed to attend and participate. SUWA

further alleged that the discussions at the meetings involved matters over which the Kane

and Garfield county commissions exercised jurisdiction and/or advisory power, and that

none of the exceptions to the Open and Public Meetings Act justified holding a non-

public meeting.

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 Kane County filed a motion to dismiss asserting that SUWA lacked standing

because the counties did not cause SUWA any injury and there was no relief to award. In

the alternative, Kane County argued that SUWA’s Complaint failed to state a claim upon

which relief could be granted. (Kane County’s Motion to Dismiss, Sixth District Court,

December 12, 2017). Garfield County filed a similar motion to dismiss. (Defendant

Garfield County Commission’s Motion to Dismiss With Prejudice and Memorandum in

Support, Sixth District Court, December 12, 2017). The commissions of 11 other Utah

counties sought leave to file an amicus curiae brief in support of Garfield and Kane

counties’ motions to dismiss. The motion for leave was granted and the counties argued

on the merits of the motion to dismiss and an attorney fees motion hearing.

In opposing the motions to dismiss, SUWA contended that the Open and Public

Meetings Act conferred standing on SUWA by virtue of the provision stating “[a] person

denied any right under this chapter may commence suit in a court of competent

jurisdiction…” and that remedies could include an injunction to compel compliance.

(SUWA’s Consolidated Memorandum Opposing Defendants’ Motions to Dismiss,

January 26, 2018, at 2 (quoting Utah Code Ann. § 52-4-303(3)). SUWA further stated

that it had associational and alternative standing. The Proposed Amici have in the past

and will again in the future challenge government bodies subject to the Open and Public

Meetings Act, and therefore the issue of standing for groups like SUWA is of critical

importance to the Proposed Amici.

With regard to whether the Complaint stated a claim for which relief could be

granted, SUWA argued that the counties admitted they had adopted resolutions—in open

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and public meetings—with respect to their views on possible boundary adjustments to the

Grand Staircase-Escalante National Monument. Yet, SUWA pointed out, the counties

later claimed they did not have jurisdiction or advisory power with regard to any aspect

of the meeting with Secretary Zinke. SUWA also argued that the administrative or

operational exception to the Open and Public Meetings Act, located in Utah Code Ann. §

52-4-103(6)(c), was inapplicable here. (SUWA’s Consolidated Memorandum Opposing

Defendants’ Motions to Dismiss, January 26, 2018, at 22-23).

On June 6, 2018, the Sixth District Court dismissed SUWA’s Complaint for lack

of standing or, in the alternative, for failure to state a claim on which relief could be

granted. The district court stated that “[i]t is undisputed that only Congress or the

President can alter the Monument, and the Counties have no jurisdiction or advisory

power in the matter.” (Memorandum Decision and Order, June 6, 2018, at 6-7).

However, the district court failed to acknowledge that the Kane and Garfield county

commissions had adopted resolutions stating their views on the possible boundary

alterations of the Grand Staircase-Escalante National Monument, and that the counties

did have jurisdiction and advisory power over the communication of their perspectives to

Secretary Zinke.

The Kane and Garfield county commissions then filed a motion with the Sixth

District Court for attorney fees, arguing that SUWA had acted in bad faith and for an

improper purpose in filings its complaint. The counties alleged that SUWA acted to

“intimidate local officials and dissuade them from meeting with federal officials.”

(Defendants Kane County Commission and Garfield County Commissions’ Motion for

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Attorney Fees, June 18, 2018, at 10). The Proposed Amici have great interest in this

issue because of the potential chilling effect on the Proposed Amici. Even though the

Open and Public Meetings Act authorizes any person to seek to have a court enjoin a

public body from violating the Act, the district court’s decision in this case would defeat

the Legislature’s goal. If entities such as SUWA can be held to be acting in bad faith

simply by exercising their statutory rights under the Open and Public Meetings Act, then

the Act means very little if anything. The Proposed Amici desire to file their Brief in

order to expound further on the harms that such a holding by this Court would impose on

Utahns, including the Proposed Amici.

ARGUMENT

I. THE PROPOSED AMICI SHOULD BE GRANTED LEAVE BECAUSE THEIR INPUT

WILL GO TO THE HEART OF THE ISSUES BEFORE THE COURT.

In accordance with Rule 25 of the Utah Rules of Appellate Procedure, a Brief of

Amicus Curiae is desirable in this case because the Proposed Amici will provide the Court

with helpful information and arguments regarding the statutory and public policy issues in

this case. The Proposed Amici previously have litigated cases in Utah courts in which the

Proposed Amici sought to preserve open government. Thus, whether an organization like

SUWA has standing to sue under the Open and Public Meetings Act is of critical

importance to the Proposed Amici. The Proposed Amici will discuss this issue in their

Brief.

The mission of the Proposed Amici includes the goal of accurately informing

citizens of the conduct of their elected government officials so that citizens ultimately may

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govern themselves. This purpose of the Proposed Amici comes into direct conflict with a

government entity that seeks to avoid transparency and public accountability in its official

conduct, and then seeks to punish entities such as SUWA that attempt to ensure compliance

with the Open and Public Meetings Act. The Proposed Amici will expound in their Brief

on the dangers posed by the district court’s decision to the free flow of information and to

self-government by an informed citizenry.

II. THE PROPOSED AMICI HAVE A UNIQUE AND VALUABLE PERSPECTIVE ON HOW
THE DISTRICT COURT’S DECISION CONFLICTS WITH THE STATED PUBLIC
POLICY OF THE ACT.

The district court concluded that Kane and Garfield county commissioners properly

held non-public meetings with Secretary Zinke because those discussions, although of great

public consequence and interest, amounted only to administrative or operational matters

under Utah Code Ann. § 52-4-103(6)(c). The Proposed Amici would like to file their Brief

in part to discuss whether a county commission that adopts a resolution on a matter of great

public interest may then, without violating the Open and Public Meetings Act, meet with a

member of the U.S. President’s Cabinet under the assertion of mere administrative or

operational matters and yet discuss the subject of the resolution. In adopting the Open and

Public Meetings Act, the Legislature stated that its purposes were to ensure that “the state,

its agencies, and its political subdivisions: (a) take their actions openly; and (b) conduct

their deliberations openly.” Utah Code Ann. § 52-4-102(2). In this case the commissioners

of Kane and Garfield counties have attempted to implement a different public policy, one

that would allow them to meet privately as a quorum on a matter of great public interest

and importance on which they already had adopted resolutions.

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 The district court contended that SUWA attempted to intimidate county

commissioners by suing them frivolously and in bad faith even while realizing that the

counties could not actually change the boundaries of the Grand Staircase-Escalante

Monument. Yet that was not the intent or effect of SUWA’s action. SUWA acted as a

public watchdog in much the same way the Proposed Amici do. In that role, SUWA

exercised the right granted to it in the Act to seek compliance with the open meetings

requirements. The Proposed Amici’s Brief will discuss the critically important public

policy established in the Act that allows and encourages the general public and public

watchdog organizations to seek to ensure compliance with the open-meetings provisions.

That public policy is defeated by decisions such as the district court’s order in this case,

particularly given that the district court not only denied SUWA the opportunity to litigate

the issues on the merits but also the district court imposed effective punishment on SUWA

for its efforts to serve the public interest in open government.

For the reasons stated, the Proposed Amici respectfully requests that the Court grant

their motion for leave.

RESPECTFULLY SUBMITTED this 26th day of June, 2019.

s/ Edward L. Carter
Edward L. Carter
Attorney for Utah Headliners Chapter of
the Society of Professional Journalists,
Fox 13 KSTU-TV and Deseret News

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 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 26th day of June 2019, true and correct copies of

this MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO FILE BRIEF

OF AMICUS CURIAE were sent via United States mail, postage prepaid, to:

Peter Stirba
Jeffrey C. Bramble
STIRBA, P.C.
215 S. State St., Suite 750
P.O. Box 810
Salt Lake City, Utah 84110
Attorneys for Garfield County Commission

Shawn T. Welch
Richard D. Flint
Timothy M. Bagshaw
Chelsea J. Davis
HOLLAND & HART, LLP
222 S. Main St., Suite 220
Salt Lake City, Utah 84101
Attorneys for Kane County Commission

J. Mark Ward
BALANCE RESOURCES
3004 Sweet Blossom Dr.
South Jordan, Utah 84095
Attorneys for Amici Curiae Board of Commissioners of Beaver County, Carbon County,
Emery County, Iron County, Juab County, Millard County, Piute County, Sanpete
County, Sevier County, Tooele County and Wayne County

David C. Reymann
Austin Riter
PARR BROWN GEE & LOVELESS
101 S. 200 East, Suite 700
Salt Lake City, Utah 84111
Attorneys for Southern Utah Wilderness Alliance

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 s/ Edward L. Carter
Edward L. Carter

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