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iMatter Utah v. Njord

United States Court of Appeals, Tenth Circuit

December 22, 2014

IMATTER UTAH, an unincorporated association; RYAN PLEUNE; LAUREN WOOD; LINDA PARSONS, Plaintiffs-Appellees, and ALEX MATEUS, Consolidated-Plaintiff-Appellee,
v.
JOHN NJORD, UDOT Executive Director; MARK VELASQUEZ, UDOT Right-of-Way Control Coordinator; NAZEE TREWEEK UDOT Distrct Permits Officer, Defendants-Appellants

Page 1259

[Copyrighted Material Omitted]

Page 1260

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH. (D.C. Nos. 2:11-CV-00394-RJS-BCW and 2:11-CV-0910-CW).

J. Clifford Petersen, Assistant Attorney General (Joni J. Jones and Kyle J. Kaiser, Assistant Utah Attorneys General, with him on the briefs), Salt Lake City, Utah, for Defendants-Appellants.

Stewart Gollan, of the Utah Legal Clinic, (John Mejia and Leah Farrel, ACLU of Utah, with him on the brief), Cooperating Attorney for the Utah Civil Rights & Liberties Foundation, Salt Lake City, Utah, for Plaintiffs-Appellees.

Before BRISCOE, Chief Judge, HARTZ and HOLMES, Circuit Judges.

OPINION

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BRISCOE, Chief Judge.

Before the Utah Department of Transportation will grant a permit authorizing a parade on a Utah state highway, an applicant must obtain liability insurance and sign an indemnification form. Two environmental groups brought suit in the United States District Court for the District of Utah, challenging these requirements under the First Amendment. The district court granted summary judgment in favor of the plaintiffs, holding that the permit requirements are facially invalid. Officials from the Utah Department of Transportation (John Njord, Mark Velasquez, and Nazee Treweek, collectively " Utah" or " UDOT" ) appeal. We exercise appellate jurisdiction under 28 U.S.C. § 1291 and affirm.

I

iMatter Utah[1] is an unincorporated, voluntary association concerned with raising awareness of climate change. As part of this effort, iMatter organized a parade scheduled for May 7, 2011. The group planned to march down State Street past various government buildings in Salt Lake City, Utah. Salt Lake City granted the group a free-expression permit for the event. But because State Street is a Utah state highway, which falls under Utah's jurisdiction, the free-expression permit was conditioned on the group's ability to obtain an additional permit from UDOT.

Before UDOT will grant a permit authorizing a parade on a Utah state highway, an applicant must satisfy two requirements.[2] First, the applicant must " 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 of $1,000,000 coverage per occurrence and $2,000,000 in aggregate." Utah Admin. Code r. 920-4-5. Second, the applicant must sign an indemnification form. Id. The indemnification form provides:

The Permittee shall indemnify, defend and hold the State of Utah, the Utah Department of Transportation, the Utah Transportation Commission, the Utah Highway Patrol and their officers, agents and employees harmless from and against any claim or demand for loss, liability for damage, including claims for bodily injury, wrongful death or property 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-ofway; and (b) from and against all actions, suits, damages and claims brought or made by reasons of Permittee's non-observance or nonperformance of any of the terms of the Permit or the rules, regulations,

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ordinances and laws of the federal, state or local governments.

App. 944.

iMatter claimed that it could not afford the required insurance and sought a waiver from UDOT. When UDOT declined that request, iMatter sought a temporary restraining order in the United States District Court for the District of Utah. The district court denied iMatter's request.

iMatter nevertheless held its parade on May 7, 2011. Because iMatter did not obtain a UDOT permit, the group could only march on the sidewalks of State Street. iMatter then held a second parade on September 24, 2011. As before, the group refused to comply with UDOT's insurance and indemnification requirements, did not obtain a permit from UDOT, and marched only on the sidewalks of State Street.

Around the same time, another environmental group confronted the UDOT permit requirements. This group, formed by plaintiff Alex Mateus, is called Positive Change Utah. Mateus planned to hold a parade on State Street in October 2011. Mateus could not afford the insurance policy, and UDOT denied his application for a permit. Mateus's parade never materialized.

Both iMatter and Mateus filed complaints challenging the constitutionality of UDOT's permit requirements in the United States District Court for the District of Utah, naming as defendants several UDOT officials. The cases were consolidated, and all parties moved for summary judgment. Applying the Supreme Court's criteria for evaluating time, place, and manner restrictions, the district court concluded that neither permit requirement was narrowly tailored to advance Utah's interests in public safety and protecting the public fisc. The district court granted summary judgment in favor of the plaintiffs, holding that the permit requirements were facially invalid under the First Amendment and enjoining the defendants from enforcing them as currently written.[3] iMatter Utah v. Njord, 980 F.Supp.2d 1356, 1385-86 (D. Utah 2013).

On appeal, Utah raises a single issue: whether its insurance and indemnification requirements violate the First Amendment.

II

We review a district court's summary judgment ruling de novo, applying the same standard as the district court. EEOC v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106, 1116 (10th Cir. 2013). Summary judgment is appropriate " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). " In assessing a motion for summary judgment, we view the facts, and all reasonable inferences those facts support, in the light most favorable to the ...


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