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John Daley reporting To the chagrin of Utah's political establishment, more and more pivitol court rulings involving Utah's most bruising controversies, are being decided in Denver's 10th Circuit court.
Just, last week, the U.S. Supreme Court decided not to consider the controversial fight over Salt Lake's Main Street Plaza. Choosing to let the appeals court ruling stand.
After a stunning string of important 10th Circuit Court reversals, attorneys and legal observers are asking what's behind the trend. Some suggest Utah's federal judges represent a rather narrow viewpoint. Others contend the judges at the appeals court are taking Utah political leaders to task for deliberately pushing the envelope.
Utah has long had a love-hate relationship with the federal government.
Look at the Olympics. Many Utahns applauded the billion-dollar federal financial help, but blasted the federal prosecution of Utah's bid campaign.
The love and the hate play out regularly in court battles that start here, but end in Denver.
They usually begin with controversial local government decisions, which are challenged in court by citizen advocacy groups. The pattern goes like this: the establishment wins on the home court, where a Utah federal judge rules in favor of Utah policy makers. But, the challengers claim victory on the road, in Denver, where a panel of federal appeals judges holds court for this region. At the 10th Circuit, repeatedly the higher court chastises Utah for acting in an insular, or parochial way, with a narrow point of view.
An Eyewitness News analysis identified at least a half-dozen high-profile unanimous decisions that fit that profile.
Ed Firmage, Law Professor/Uni. of Utah: "I DON'T THINK THE TENTH CIRCUIT HAS ANYTHING AGAINST UTAH. I THINK YOU HAVE SOME PAROCHIAL DECISIONS, AND THAT DOESN'T MEAN WRONG, IT JUST MEANS LOCAL, LOCAL DECISIONS MADE WITH LOCAL CONSIDERATIONS RATHER PARAMOUNT, COMING UP AGAINST NATIONAL LAW."
Cullen Battle/Attorney/Univ. of Utah Law Professor: "AS I READ THEIR DECISIONS, THEY'RE SAYING THAT THESE ARE NOT CLOSE CASES."
The list is notable:
Legacy Highway: the 10th Circuit reverses Judge Bruce Jenkins, and finds state and federal road builders violated federal environmental law.
Main Street plaza: Overruling Judge Ted Stewart, the appeals court finds if Salt Lake City wants to sell land to the LDS Church and keep an easement, free speech must be protected too. The three-judge panel writes: "It's essential to protect public places where traditional speech can take place...as society becomes more insular."
In the Olympic case, the 10th Circuit reinstates 15 felony charges against Tom Welch and Dave Johnson, overturning Judge David Sam. Sam called the case purely a local concern.
But the three-judge panel writes: "The Olympic Games are hardly an insular event. The 2002 Winter Olymic Games were an international event hosted by Salt Lake City, Utah, and the United States."
There are other examples
Three years ago, the appellate court calls Utah's tough anti-alcohol law banning liquor advertisements "irrational", and rules Monuments to the Ten Commandments do not belong on public property--if other religions are banned from erecting their own.
One explanation--that local judges tend to give deference to local political interests--over citizen advocacy groups--which are increasingly taking their complaints to court.
Ted Wilson, Hinckley Institute of Politics: "A LOCAL JUDGE IS MORE INCLINED TO LOOK AT COMMUNITY CONCERNS IN RENDERING A DECISION THAN SOMEONE OVER IN DENVER WHO GETS TO DO IT IN THE SANCTITY OF AN APPEALS COURTROOM."
But Senator Orrin Hatch, chairman of the Judiciary Committee, ....
Sen. Orrin Hatch, (R) Utah: "THE 10TH CIRCUIT OF APPEALS LEAVES A LOT TO BE DESIRED. IN MY OPINION, THEY'VE BEEN WRITING A LOT OF OPINIONS THAT HAVEN'T BEEN VERY GOOD.
Others wonder if political leaders are pursuing their own agenda--despite the law and the advice of their own lawyers.
Cullen Battle/Attorney/Uni. of Utah Law Professor: "PERHAPS SOME OF OUR POLITICAL DECISION MAKERS ARE TOO WILLING TO SAY 'THIS IS WHAT WE WANT TO DO. THEREFORE IT MUST BE RIGHT.' AND THEY'RE NOT LISTENING TO GOOD LEGAL COUNSEL."
Legal insiders say there's little diversity on Utah's federal court. Most of the judges are white, male--with more than half hand-picked by Utah Senator Orrin Hatch. And Senator Hatch has some sharp words over the recent decisions by the 10th Circuit court. That story tomorrow night at TEN.