Academic journal article Albany Law Review

The Successful Creation of a Platform for Debate: Utah Chief Justice Christine M. Durham's Legacy Embodied in American Bush V. City of South Salt Lake

Academic journal article Albany Law Review

The Successful Creation of a Platform for Debate: Utah Chief Justice Christine M. Durham's Legacy Embodied in American Bush V. City of South Salt Lake

Article excerpt

The jurisprudence for which we should remember Chief Justice Christine M. Durham is her insistence on the consideration and interpretation of the Utah Constitution as separate and distinct from the Federal Constitution. Chief Justice Durham pioneered the interpretation and application of the Utah Constitution. While Chief Justice Durham's interpretations do not always prevail, she has created a vibrant platform for argument. American Bush v. City of South Salt Lake (1) provides the best evidence of Chief Justice Durham's legacy.

While the Utah Supreme Court had previously interpreted the State Constitution independently in State v. Earl, (2) the Court, speaking through then-Justice Durham, invited those arguing in Utah courts to raise state constitutional claims in addition to federal constitutional claims--particularly in the criminal arena--indicating the Utah Supreme Court's willingness to interpret the Utah Constitution independently and giving guidance on how to make such arguments with reference to State v. Jewett. (3) Jewett offers a variety of sources for constitutional argument--history (legislative, social, or political), text, sibling state interpretations, policy (economic or social good), prudence, structure, ethics. (4) After a few years, Justice Durham penned an article for the Utah Bar Journal, instructing Utah attorneys on Utah Constitutional argument. (5) The Utah Supreme Court, through Justice Durham's majority opinion, further elucidated Utah constitutional interpretation in West v. Thomson Newspapers, (6) explicitly embracing the primacy model for state constitutional interpretation in the defamation context. Under this approach, when a case presents a constitutional issue, the court analyzes it under the Utah Constitution, only looking to the Federal Constitution if the Utah Constitution does not resolve the issue. (7) In the years since, the Utah Supreme Court has continued to adhere to the primacy model. (8) Throughout this time, Justice Durham's commitment to Utah constitutional interpretation remained a constant for a court that has experienced significant turnover. (9) The American Bush case provides an example of the vibrancy of state constitutional debate in Utah.

In May 2001, the South Salt Lake City Council passed a new sexually oriented business ordinance. (10) An existing company, American Bush, had operated nude dancing businesses and wanted to continue to do so. (11) However, the new ordinance only permitted semi-nude dancing. (12) Because the United States Supreme Court has held that the United States Constitution offers only limited free speech protection for exotic dancing and allows governments to require minimal dress on dancers, American Bush sought solely the protection of the Utah Constitution. (13) American Bush claimed speech protection under article I, sections 1 and 15 of the Utah Constitution which provide as follows:

[Article I, section 1:] All men have the inherent and inalienable right to enjoy and defend their lives and liberties; to acquire, possess and protect property; to worship according to the dictates of their consciences; to assemble peaceably, protest against wrongs, and petition for redress of grievances; to communicate freely their thoughts and opinions, being responsible for the abuse of that right.

[Article I, section 15:] No law shall be passed to abridge or restrain the freedom of speech or of the press. In all criminal prosecutions for libel the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact. (14)

The text of these provisions differs from the United States Constitution's speech protection:

Amendment 1: "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. …

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