S. Utah Drag Stars v. City of St. George

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SOUTHERN UTAH DRAG STARS and MITSKI AVALOX, Plaintiffs, v. CITY OF ST. GEORGE; CITY COUNCIL OF ST. GEORGE; COUNCILMEMBER JIMMIE HUGHES, in his official capacity; COUNCILMEMBER DANNIELLE LARKIN in her official capacity; COUNCILMEMBER NATALIE LARSEN, in her official capacity; COUNCILMEMBER GREGG MCARTHUR in his official capacity; COUNCILMEMBER MICHELLE TANNER in her official capacity; MAYOR MICHELE RANDALL' in her official capacity; CITY MANAGER JOHN WILLIS, in his official capacity, Defendant.

No. 4:23-cv-00044-DN-PK

United States District Court, D. Utah

June 16, 2023

MEMORANDUM DECISION AND ORDER GRANTING PRELIMINARY INJUNCTION

David Nuffer United States District Judge

INTRODUCTION

Public spaces are public spaces. Public spaces are not private spaces. Public spaces are not majority spaces. The First Amendment of the United States Constitution ensures that all citizens, popular or not, majority or minority, conventional or unconventional, have access to public spaces for public expression.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

While the First Amendment does not apply directly to the states “the states are precluded from abridging the freedom of speech or of the press by force of the due process clause of the Fourteenth Amendment.”^[1]

Municipal governing bodies such as county commissions and city councils have a political role in which they can respond to public interest and requirements, but they also have a governing role in which they are responsible to protect the constitutional rights of all people who are in their jurisdiction. In that governing role they must be vigilant for all, not just those who support them. Those with whom they disagree with and those with whom they share little in common are also entitled to governmental rights and protection.

Public officials and the city governments in which they serve are trustees of constitutional rights for all citizens who are the beneficiaries of the trust imposed in their leaders. The governing power is to be exercised on behalf of citizens; Public officials take an oath to “support, obey, and defend the Constitution of the United States and the Constitution of the State of Utah.”^[2] They do not merely serve the citizens who elect them, the majority of citizens in the community, or a vocal minority in the community. A trustee acts for all those who are beneficiaries of the trust. This is a difficult and challenging responsibility. It requires a thorough understanding of constitutional rights and a deep personal commitment on the part of the governing body and each of its members to protect the entire community.

The governing body and its members must never use pretended or pretextual reasons to hide the real reasons for denying individuals their constitutional rights. This is not only a fundamental breach of their oath and trust but also less than honest.

The value of all the principles just expressed was understood best in the time of the American colonies when rights guaranteed to us now were not generally enjoyed and public officials did not protect rights of individuals. The formative experience of the United States led to the adoption of the Bill of Rights of the United States Constitution.

These constitutional rights and principles of responsibilities of governments and governing individuals have been tested severely through the history of our Republic. And as society changes, the testing goes on in new contexts.

It is entirely understandable how politically sensitive elected and appointed officials with strong personal beliefs and preferences, a sense of community expectations and values knowledge of historical norms and practices, and a cautious approach to change and controversy would be challenged by Plaintiffs' application for a special event permit. The approach to the Plaintiffs' permit application is not unusual, and neither is this resulting lawsuit. Public officials, including judges, are not permitted to make some decisions based on personal preference or values, but must often subordinate personal interests to the obligations we have as public officials.

Challenging times give us an opportunity to re-examine fundamental principles of our government and, once again, determine to adhere by them. We recognize that just as we enjoy and prize our rights, we must value and respect the rights of others. This case presents an opportunity for our recommitment.

TABLE OF CONTENTS

INTRODUCTION ...................................................1

GENERAL BACKGROUND...................................................1

DISPOSITION AND OVERVIEW...................................................2

FACTUAL BACKGROUND ...................................................3

1. The City Forces City Manager Resignation for Permitting Drag Show Event...................................................3

2. Southern Utah Drag Stars Seeks Special Event Permit for Community Drag Show...................................................4

3. The City Flags Drag Stars' Application for the Allies Drag Show Due to “Sensitive Nature” ...................................................5

4. The City Passes Moratorium Ordinance That Suspends New Special Event Permit Applications ...................................................5

5. City Event Decision-Makers Raise No Substantial Concerns During Processing of Drag Stars Permit...................................................6

6. Based on Anti-Drag Complaint, the City Decides to Begin Enforcing Never-Before-Enforced Advertising Prohibition...................................................7

7. The City Prepares to Exempt the Majority of Identified Applicants Violating the Advertising Prohibition...................................................10

8. Drag Stars Prepares for the April 28 Allies Drag Show ...................................................12

9. The City Abruptly Denies Drag Stars' Permit...................................................12

10. Despite Significant Acknowledged Problems with Advertising Prohibition, the City Maintains Prohibition for New Special Events and Only Exempts City-Sponsored and Recurring Events ...................................................13

11. Advertising Prohibition Amendment Retroactively Exempts Majority of Identified Ordinance Violators ...................................................16

12. The City Denies Drag Stars Permit Appeal ...................................................17

13. Drag Stars Files Suit ...................................................18

PRELIMINARY LEGAL ISSUES...................................................19

Plaintiffs Have Standing ...................................................19

The Controversy is Not Moot ...................................................20

Preliminary Injunction Legal Standards ...................................................21

Plaintiffs' Request a Mandatory Injunction...................................................21

PLAINTIFFS ARE ENTITLED TO INJUNCTIVE RELIEF UNDER RULE 65 ...................................................23

1. Plaintiffs have Demonstrated a Likelihood of Success on Merits ...................................................23

2. Plaintiffs Will Continue to Suffer Irreparable Harms Without Injunctive Relief....................................................49

3. The Balance of Harms Tips Heavily in Plaintiffs' Favor ...................................................49

4. The Public's Interest in Protecting Constitutional Rights is Paramount...................................................49

5. No Bond is Required...................................................49

6. Summary of Analysis of Entitlement to Preliminary Injunction ...................................................50

7. Fitting the Remedy...................................................53

ORDER AND PRELIMINARY INJUNCTION ...................................................55

GENERAL BACKGROUND

Plaintiffs Southern Utah Drag Stars, LLC (“Drag Stars”) and Mitski Avalox (“Avalox”) seek their opportunity to speak in the public square through a community drag show which they say conveys messages of diversity, inclusion, and support for individuals with non-traditional gender expression and identities.^[3]Drag Stars applied for a special event permit (the “Permit”) to hold “Our Allies & Community Drag Show” (“Allies Drag Show”) at a public park in St. George, Utah (the “City”). The City denied the Permit based on never-previously-enforced ordinances that prohibit special event advertising until a final event permit is issued. The record shows the use of this prohibition was a pretext for discrimination. The City also enacted a moratorium barring all new special event permit applications for six months. At the same time the City's two-step blocked Drag Stars from holding the Allies Drag Show for at least six months, the City retroactively exempted the majority of other known violators of the advertising prohibition and exempted major swaths of events from the moratorium.

Plaintiffs filed suit May 23, 2023.^[4] On May 30, 2023, Plaintiffs moved for a preliminary injunction seeking an order reversing the City's Permit denial and directing the City to allow the Allies Drag Show be held in June, 2023.^[5]A telephonic status conference was held June 1, 2023.^[6]A docket text order from the court requesting Defendants file supplemental answers and documents was entered June 7, 2023.^[7]Defendants filed their Opposition June 9, 2023^[8]and included their...