Tablets to stay in park
Judge OKs monument in Duchesne; appeal planned
"Duchesne city has undertaken adequate actions to make it clear that the monument sits on property that is neither owned nor controlled by the city, and that nothing on the property is in any way endorsed by or associated with Duchesne city," U.S. District Judge Dee Benson wrote in the Tuesday opinion.
When first faced with the possibility of a constitutional challenge over the 25-year-old display in the city's Roy Park, Duchesne deeded the 10-foot-by-11-foot plot of land to the Lion's Club. The city then took back ownership of the property, and one month later sold it to the daughters of the family who originally donated the monument to the city in 1979.
The women intend to erect a 4-foot high ornamental fence around the approximately 5-foot-tall marble tablet, along with signs to indicate the monument sits on private property.
Prior to selling the property, Duchesne passed three ordinances relating to the display, including one that permanently closed the park as a forum for private displays.
Benson denied Summum's motion for a court order allowing it to erect its own monument, saying to do so would only continue to entangle Duchesne in city-sponsored private expression.
"Any solution of that nature would open the door to another display and then another, and so on, until the city park looks like a NASCAR driver at the Brickyard 400," the judge wrote.
Attorneys for the city praised Benson's ruling Tuesday, saying it makes clear what Duchesne wanted to do all along — get out of the business of sponsoring private speech. "(The court's decision) is a good balance," said Francis J. Manion of the American Center for Law and Justice, which, along with the Thomas More Law Center, represents Duchesne in the case.
Attorney Ed White, of the Thomas More Law Center, also applauded the ruling as a "sound solution" for cities facing constitutional challenges.
Utah is unique in that prior opinions from the 10th U.S. Circuit Court of Appeals have established that once a Ten Commandments monument is erected, cities must either remove the monolith from public property altogether or open the forum for others.
"With the limited resources cities have, this is one solution to solve that problem," White said.
Summum attorney Brian Barnard, however, said Tuesday's decision violates those earlier decisions and plans an appeal.
"The right to free speech is not so easily taken away by government agencies and governments playing games," Barnard said. "What they did was manipulate the facts in the hope that the judge would say, 'OK, the First Amendment is no longer implicated.' And obviously they were successful."
Summum must wait until the case is entirely resolved to file its appeal, however. Benson noted that Summum may still be entitled to monetary damages stemming from the city's behavior prior to selling the property. The group seeks $20 for injuries it allegedly suffered from the denial of its free-speech rights.
E-mail: awelling@desnews.com
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