Martinez v. Draper City et al

Filing 34

MEMORANDUM DECISION AND ORDER denying 3 Plaintiff's MOTION for Temporary Restraining Order/Preliminary Injunction. Signed by Judge David Nuffer on 7/21/2017. (jds)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
TROY MARTINEZ, an individual,
Plaintiff,
v.
DRAPER CITY, a municipal corporation;
DRAPER COMMUNITY FOUNDATION
AKA DRAPER FOUNDATION, a non-profit
corporation, TROY K. WALKER, Mayor of
Draper City; AJ CLAYSON, Draper
Community Foundation Parade Director and
Draper Days Co-chair; LORI BIRD, Draper
Days Director; DAVID DOBBINS, Draper
City Manager; MIKE BARKER, Draper City
Attorney; LAMONT SMITH, Treasurer of
Draper Community Foundation; ROBIN
MCCULLOCH, President of Draper
Community Foundation; WILLIAM
RAPPLEYE, JEFF STENQUIST, ALAN
SUMMERHAYS, MARSHA VAWDREY,
Draper City Council Members; JOHN DOE IXX, unidentified members that control the
Draper Days Parade.,
Defendants.

MEMORANDUM DECSION AND
ORDER DENYING PLAINTIFF’S
[3] MOTION FOR TEMPORARY
RESTRAINING ORDER/PRELIMINARY
INJUNCTION
Case No. 2:17-cv-00772
District Judge David Nuffer

In conjunction with his amended complaint, 1 Plaintiff Troy Martinez (“Mr. Martinez”)
moves (“Motion”) 2 for the entry of a temporary restraining order and (or in the alternative) a
preliminary injunction against Defendants Draper City, Troy K. Walker, David Dobbins, Mike
Barker, William Rappleye, Jeff Stenquist, Alan Summerhays, Marsha Vawdrey (collectively
“Draper City Defendants”), Draper Community Foundation, AJ Clayson, Lori Bird, Lamont

1

Amended Complaint for Damages and Injunctive Relief (Violation of Civil Rights) (“Amended Complaint”),
docket no. 25, filed July 14, 2017.

2

Motion for Temporary Restraining Order/Preliminary Injunction, docket no. 3, filed July 12, 2017.

Smith, and Robin McCullough barring them from denying Martinez’s entry permit into the
Draper Days Parade (“Parade”) on the basis of Draper City Resolution No. 15-28 and Draper
City Policy 15-01. The Draper Defendants 3 oppose the motion (“Opposition”). 4
The parties appeared telephonically at a hearing on the Motion. 5 After reviewing the
filings and facts, findings and conclusions were made on the record that Mr. Martinez cannot
satisfy the four requirements for a temporary restraining order or preliminary injunction. The
motion was DENIED. 6 This memorandum decision and order memorializes the findings of fact
and conclusions of law announced during that hearing.
FINDINGS OF FACT
1.

Draper City conducts a public parade as part of its Draper Days Activities. 7

2.

This year, the Parade is held July 15, 2017. 8

3.

Under Draper City Resolution No. 15-28 and Policy 15-01, currently serving city

officials can march in the parade, provided that they are not identified as political candidates. 9

3

Because of the timing of the filing of the complaint, Motion, and the hearing, only the Draper City Defendants, as
specified above, had counsel file an appearance and file an opposition to the Motion. E.g., Notice of Appearance of
Counsel, docket no. 8, filed July 13, 2017, at 12:16 p.m., Notice of Appearance of Counsel, docket no. 9, filed July
13, 2017, at 12:22 p.m., Notice of Appearance of Counsel, docket no. 10, at 12:28 p.m., Notice of Appearance of
Counsel, docket no. 11, filed July 13, 2017, at 12:41 p.m., filed July 13, 2017, and Opposition to Plaintiff’s Motion
for Temporary Restraining Order/Preliminary Injunction, docket no. 29, filed July 14, 2017 at 12:20 p.m. At the
time of the hearing, counsel for Defendants Draper Community Foundation, AJ Clayson. Lori Bird, Lamont Smith,
Robin McCullough had not appeared.
4

Opposition to Plaintiff’s Motion for Temporary Restraining Order/Preliminary Injunction (“Opposition”), docket
no. 29, filed July 14, 2017.
5

Minute Order, Proceedings Held before Judge Nuffer, docket no. 33, entered July 14, 2017.

6

Id.

7

Amended Complaint ¶ 21.

8

Id. ¶ 22.

9
See generally Draper City Resolution No. 15-28, Amended Complaint, Ex. AAA and Draper City Policy 15-01,
Amended Complaint Ex. BBB.

2

4.

Utah Code Ann. Section 20A-11-1203 provides: “Unless specifically required by

law, and except as provided in Section 20A-11-1206, a public entity may not make an
expenditure from public funds for political purposes or to influence a ballot proposition.” 10
5.

Applicants who wished to march in the parade had to apply online before July 1,

2017 or until the 100 available spots were taken. 11
6.

Mr. Martinez applied for entry as a participant in the parade on May 3, 2017. 12

7.

Mr. Martinez indicated that he was applying to participate in the parade as a

candidate for Draper City mayor. 13
8.

On June 2, 2017, Mr. Martinez received an email from Draper City Foundation

Treasurer Lamont Smith, indicating that Mr. Martinez’s parade application was currently under
legal review and that a response to his parade entry would be forthcoming. 14
9.

On June 13, 2017, Mr. Martinez received his official declination letter. The

official response was that Draper City Foundation adopted Draper City Resolution 15-28 and
would not allow political campaigning to occur during the Parade. 15
10.

Mr. Martinez filed the Motion on July 12, 2017 at 1:27 pm. 16

CONCLUSIONS OF LAW
A party seeking a temporary restraining order or preliminary injunction must demonstrate
four elements: “(1) a substantial likelihood of prevailing on the merits; (2) irreparable harm

10

Opposition ¶ 7.

11

Amended Complaint ¶ 34.

12

Id. ¶ 35.

13

Id. ¶¶ 35-36.

14

Id. ¶ 40.

15

Id. ¶ 42.

16

Motion for Temporary Restraining Order/Preliminary Injunction, docket no. 3, filed July 12, 2017.

3

unless the injunction is issued; (3) that the threatened injury outweighs the harm that the
preliminary injunction may cause the opposing party; and (4) that the injunction, if issued, will
not adversely affect the public interest.” 17 Preliminary injunctions that alter the status quo are
specifically disfavored, and a movant bears the heightened burden of “showing that the
traditional four factors weigh heavily and compellingly in its favor before obtaining a
preliminary injunction.” 18 If Mr. Martinez were to obtain a temporary restraining order or
preliminary injunction here, it would alter the status quo of how the defendants conduct and
manage the Parade. It is therefore as disfavored injunction and Mr. Martinez fails to demonstrate
in his motion how the traditional four factors weigh heavily and compellingly in his favor.
The late filing of this case is also very concerning. The case was filed three days before
the date of the Parade, 19 and the complaint was amended the day before the Parade. 20 Counsel
for some of the named defendants appeared the day before the hearing 21 and filed their
opposition the following day. 22 The timing of Mr. Martinez’s complaint motion has subjected the
defendants to the greatest inconvenience possible and given the court the least amount of time
possible to resolve the motion. These are not the type of actions which would appropriately
invoke the aid of equity. Injurious timing aside, Mr. Martinez fails to carry his burden on each
required element. Those elements are addressed in turn.

17

Diné Citizens Against Ruining Our Env't v. Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016) (internal quotation
marks and brackets omitted).
18

Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne, 698 F.3d 1295, 1301 (10th Cir. 2012).

19

Complaint for Damages and Injunctive Relief (Violation of Civil Rights), docket no. 2, filed July 12, 2017.

20

See supra note 1.

21

See supra note 3.

22

See supra note 4.

4

1. Plaintiff has not demonstrated a substantial likelihood of success on the merits.
Mr. Martinez bears the burden of demonstrating that it is substantially likely that he will
prevail on the merits of his case. 23 Despite Mr. Martinez’s argument that Draper City’s
resolution, policy, and actions here infringe on his First Amendment freedoms, 24 the Parade is a
form of government speech that does not implicate First Amendment concerns. Furthermore, the
Parade can be considered a limited public forum in which the defendants can impose reasonable
restrictions on speech. Finally, even if the Parade cannot be considered government speech or a
limited public forum, public policy justifies the prohibition on political candidates appearing in
the Parade because Resolution 15-28 protects Draper City from violating clearly articulated state
law.
If actions taken by the government qualify as government speech, the government enjoys
significant latitude. “When the government speaks, it is not barred by the Free Speech Clause
from determining the content of what it says.” 25 The government “is entitled to promote a
program, to espouse a policy, or to take a position.” 26 “In doing so, it represents its citizens and it
carries out its duties on their behalf.” 27 Government speech therefore includes that which
“communicate[s] messages … by … governments,” is “closely identified in the public mind”
with the government and which the government “maintain[s] a degree of control over the
message conveyed.” 28

23

Diné Citizens 839 F.3d at 1281.

24

Motion at 7.

25

Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2245 (2015) (citing Pleasant Grove
City v. Summum, 555 U.S. 460, 467-68 (2009)).

26

Id. at 2246.

27

Id.

28

Id. at 2245-46.

5

The Parade satisfies all three of those factors and can be considered government speech.
The parade is funded, organized, and carried out by the Draper Community Foundation and
Draper City. Residents would readily associate the Parade with Draper City. And Draper City—
through the adoption of the Resolution and Policy—maintains a degree of control over the
messages conveyed in the parade, particularly when it comes to the city’s elections. Mr.
Martinez, in turn, does not have an unfettered right to control promulgation of ideas by the
government.
Even if the Parade is not considered government speech, it constitutes a limited public
forum subject to appropriate speech restrictions. It is within the government’s authority to create
limited public forums that allow “selective access to some speakers or some types of speech.” 29
“Any government restriction on speech in a limited public forum must only be reasonable in
light of the purpose served by the forum and be viewpoint neutral.” 30
The restrictions on who may appear in the parade are reasonable in light of the purpose of
the parade and the restrictions are certainly viewpoint neutral. The Parade focuses on the city’s
history, on family, on heritage, and on a sense of community—it is decidedly nonpolitical. 31
Because politics tend to strain relationships and divide communities, Draper City has chosen to
prohibit political campaigning within the parade itself. 32 Those currently serving city officials
who appear in the Parade will not indicate that they are incumbents seeking reelection. 33 These

29

Shero v. City of Grove, Okla., 510 F.3d 1196, 1202 (10th Cir. 2007) (internal citation omitted).

30

Id.

31

See Draper City Policy 15-01, Amended Complaint, Ex. BBB.

32

Id.

33

Id.

6

restrictions are being exercised in a fair and even-handed manner to ensure that local politics do
not detract from the unifying, community-centric message of the parade.
Even if the parade cannot enjoy the protections of government speech or as a limited
public forum, the prohibition on campaigning during the parade serves the compelling
governmental interest of maintaining compliance with state law. “[A]ny restriction based on the
content of the speech must satisfy strict scrutiny, that is, the restriction must be narrowly tailored
to serve a compelling government interest.” 34 Here, Utah Code Section 20A-11-1203 clearly
prohibits the use of public funds for the endorsement of political views or candidates. 35 This
would include political advocacy by candidates during a publicly funded event. 36 The presence
of an actively campaigning candidate in the parade could readily be construed as a violation of
state law and would expose the city to liability. The prohibition on that sort of activity serves
Draper City’s compelling interest to comply with state law.
The resolution and policy were in place long before Mr. Martinez chose to enter the
mayoral race, and they offer continued protection to the city. Mr. Martinez has not demonstrated
the substantial likelihood of his success on the merits of his claims.
2. Plaintiff will not suffer irreparable harm in the absence of an injunction.
In moving for an injunction or restraining order, Mr. Martinez must show that some form
of “irreparable harm [would occur] unless the injunction is issued.” 37 The circumstances
surrounding the timing of Mr. Martinez’s filings hamper his argument here. While “delay in

34
Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469, 129 S. Ct. 1125, 1132, 172 L. Ed. 2d 853 (2009)
(internal citations omitted).
35

See Utah Code Ann. Section 20A-11-1203.

36

See Draper City Resolution 15-28, Amended Complaint, Ex. AAA.

37

Diné Citizens, 839 F.3d at 1281.

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seeking preliminary relief cuts against finding irreparable injury[,]” 38 it “is only one factor to be
considered among others, and there is no categorical rule that delay bars the issuance of an
injunction.” 39 “The question instead is whether the delay was reasonable, was not a decision by
the party to sit on its rights, and did not prejudice the opposing party.” 40
The timing of the filing of this case answers those questions in favor of the defendants.
Again, Mr. Martinez received his official declination letter on June 13 and waited until three
days before the Parade to file this lawsuit. While Mr. Martinez may have had challenges in
finding counsel, the result still is that his lawsuit was filed at a time that would cause the
defendants the greatest possible inconvenience, if not prejudice.
Significantly, the Parade actually provides Mr. Martinez with an alternative means to
advance his candidacy. Mr. Martinez can readily utilize the adjacent sidewalks and parade
sidelines to meet voters. Indeed, because he will not be walking in the Parade as a candidate, he
actually has a better campaigning opportunity than the participants in the parade against whom
he might be running. Given the ability that Mr. Martinez has to campaign adjacent to the Parade,
it is difficult to find that he will suffer irreparable harm in the absence of an injunction in these
specific circumstances.
3. Any injury that threatens the Plaintiff does not outweigh the harm that a temporary
restraining order or preliminary injunction may cause to the defendants.
Mr. Martinez has not demonstrated that his “threatened injury outweighs the injury the
opposing party will suffer under the injunction.” 41 If the defendants were enjoined to permit Mr.
Martinez to participate the Parade as a clearly designated mayoral candidate, Draper City could
38

RoDa Drilling v. Siegal, 552 F.3d 1203, 1211 (10th Cir. 2011).

39

Fish v. Kobach, 840 F.3d 710, 751–52 (10th Cir 2016).

40

Id. at 753.

41

Diné Citizens, 839 F.3d at 1281.

8

face losses of public funding or the stigma of violating a state law. Enjoining Draper City in such
a manner would also create conflict with other candidates who are prohibited from campaigning
by virtue of their presence in the parade, particularly if they lacked the opportunity to make the
same point that Mr. Martinez seeks to make in this lawsuit. Mr. Martinez may campaign at the
same time as the Parade without having to place the city or other candidates at a disadvantage,
legal or otherwise.
4. An injunction will adversely affect the public interest.
Finally, Mr. Martinez must show that the issuance of in an injunction in his favor “would
not be adverse to the public interest.” 42 He has not made this showing. Granting Mr. Martinez
the ability to participate in the Parade as a mayoral candidate, after he has had substantial
planning opportunity and only hours before the Parade begins, would change the ground rules
that Draper City has chosen to adopt. 43 It would be unfair to other candidates for city office who
have not had the same planning opportunity and would create an imbalance against the public
interest. The injunction therefore will not issue.
ORDER
Based upon the foregoing memorandum decision, Plaintiff’s Motion for Temporary
Restraining Order or Preliminary Injunction 44 is DENIED.

Signed July 21, 2017.
BY THE COURT
________________________________________
District Judge David Nuffer
42

Diné Citizens, 839 F.3d at 1281.

43

See generally Draper City Resolution No. 15-28, Amended Complaint, Ex. AAA and Draper City Policy 15-01,
Amended Complaint Ex. BBB.
44

Motion, docket no. 3, filed July 12, 2017.

9