Hat tip to Mr. Molly over at Telestial State for this rather bizarre story on the continual battle over Utah’s liquor laws that, apparently, not even Jon Huntsman could permanently resolve.
The Utah Hospitality Association (“UHA”), together with a handful of private plaintiffs, have initiated a lawsuit (complaint available here) against a number of prominent Utahns, including Governor Herbert, Attorney General Mark Shurtleff, members of the DABC, and various “John Does” seeking to have Utah’s Alcohol and Beverage Control Act, including the most recent set of legislative amendments, declared illeagal as a restraint of trade under Sherman Act. The lawsuit also seeks a declaratory judgment stating that Utah “legislators’ consultations with [representatives of] the Church of Jesus Christ of Latter-day Saints when making alcohol policies during the 2011 legislative session [were] unconstitutional”; and injunctive relief prohibiting “legislators of the State of Utah [from] . . . consult[ing] with, or consider[ing] the opinions of, the Church of Jesus Christ of Latter-day Saints when making alcohol policies during future legislative sessions.”
I’m not an anti-trust lawyer, so I’m going to leave the Sherman Act part of UHA’s complaint alone, other than to point out the Sherman Act and state alcohol regulations (even Utah’s unnecessarily restrictive regulations) have peacefully and legally coexisted for approximately 100 years, and it’s hard to see what happened last spring that changes this reality.
What’s in a Name?
But I do want to focus in briefly on UHA’s claims for declaratory and injunctive relief, because they seem extraordinarily odd to me on a number of levels. First of all, the plaintiffs in this case haven’t sued either the state legislators or the LDS Church. Even when you’re only seeking declaratory relief, you still have to name the parties involved before the court will enter a declaration regarding the legality of their actions. Hard to see how legislators or the LDS Church get enjoined when they’re not parties (maybe the complaint will be amended so that the LDS Church and John Valentine replace the current John Does).
Talking = Interference
Second, the basis for the claim of unconstitutionality is the Utah State Constitution, which provides as follows in Article I, Section 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 of 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.
Although it’s hard to get a precise sense of exactly what UHA thinks the Utah Constitution requires, it’s obvious that the basis of their complaint arises out of the constitutional language declaring that no church shall “dominate the State or interfere with its functions.” The contention here has to be that, whenever state legislators seek out representatives of the LDS Church for an opinion on subjects related to legislation or governing (i.e., basically any subject at all), the LDS Church is somehow “interfering” with state functions or “dominating” the state. Logically, UHA’s position extends beyond liquor laws and would seem to prohibit legislators from communicating with the representatives of the LDS Church altogether, including in, say, public-private efforts to coordinate homeless housing and food delivery, discussions over child abuse reporting requirements for ecclesiastical leaders, or discussions regarding the new City Creek Center, which is paid for in large measure by the LDS Church itself. Prior to filing this complaint, UHA should have taken a step back and considered whether it really seriously believes that the Utah Constitution requires cutting off all communication between public leaders and LDS Church representatives (especially since it’s abundantly clear the people who drafted the Constitution did not). I’ve already wasted too much space on this one.
Just that one
Finally, it strikes me that UHA’s complaint would be much more effectively drafted if it just struck out all references to a specific church. Shouldn’t UHA’s request for injunctive relief seek to prohibit consultations between legislators and all religions? After all, while no other church in Utah is probably capable of “dominating” the state like the LDS Church, they are all capable of “interfering.” Drafting more circumspectly is not going to fool anyone about the real motive underlying this suit, but it’s never good legal strategy to be so candid about your desire for selective application of constitutional rules.
UHA openly acknolwedges that this suit is really nothing more than a political protest. It got them in the news, so I recommend they voluntarily dismiss. Otherwise, it will just die a slightly slower and more expensive death.