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Use It or Lose It
For an organization that’s taken on almost every power player in the state—from the prisons to the Legislature to the LDS Church—the ACLU of Utah has rarely employed more than a handful of staff. Currently, the organization has recruited a new legal director from the New York State Attorney General’s Office, Darcy Goddard, to assist Lowe and McCreary. But as for actual litigation, the office has always relied on attorneys in the local legal community to help fight their battles. Without taking any issues to the courts in years, however, some attorneys who have previously worked closely with the ACLU of Utah are beginning to lose faith.
For Gnade, one of the most critical dynamics to the success of the ACLU of Utah was having a bevy of private-practice attorneys who had the passion but not the resources of the ACLU of Utah.
“Individual attorneys don’t have the time for these kinds of suits to [work] on their own,” she says. “So, they need an organization to partner with.”
Attorney Barnard (pictured at left) has been a proud foot soldier for the ACLU of Utah, working as a cooperating attorney for decades. While he sees the hiring of experienced litigator Goddard as a positive, he’s also saddened by the organization’s recent track record.
“I am dismayed that the Utah ACLU has not filed a lawsuit in almost five years. Clearly, that is not because civil-rights violations no longer occur in Utah,” Barnard writes via e-mail. “I can give you a list of five substantial, systemic problems in the Davis and Salt Lake County jails and at the Utah State Prison that warranted lawsuits in that time period. Quiet public education behind the scenes is not the primary mission of the ACLU. Bureaucrats ignore letters from the ACLU; they cannot ignore lawsuits.”
While Barnard has a working relationship with the organization, even those further away share his views. Unaffiliated civil-rights attorney Randall Edwards, see an organization losing credibility in the local legal community.
“Word on the street is that the ACLU of Utah has become toothless when it comes to actually litigating anything here, which would seem to fly in the face of the original mission of the organization,” Edwards writes via e-mail. The result he sees is an organization not taken seriously, and one that leaves many egregious civil-liberties violations left unchallenged when the client can’t afford to go to a private attorney in the first place.
“They can speak at seminars all they want, but who cares, [if] they won’t back it up with actual lawsuits?” Edwards writes.
Joseph Compton approached the ACLU of Utah with just such a predicament after the ruling in Juab that made his religious beliefs legal fodder. Although the ACLU of Utah had an initial meeting with him, they eventually backed away from the case.
A court transcript of an Aug. 25, 2009, hearing provides some detail of Compton’s fight for visitation and custody rights for his and his ex-wife’s eight children.
“There’s nothing to show that teaching children the importance of celestial plural marriage is damaging: the [LDS] Church teaches it also,” Compton testified, before being cut off by 4th District Judge Donald Eyre, who interjected that children should have consistency in their religious upbringing.
“Clearly, your wife, at least through her expression in her complaint, desires that she continue, and the children continue, a certain religious, you know, background. And clearly, that’s within her rights,” Eyre said in the hearing. (Eyre did not comment for this story.)
Compton relented and informed the court he’d be happy to take his children to any local LDS ward they wanted, noting that he still was a member of the LDS Church. Eyre ordered that during visitation that the tenets of his fundamentalist belief not be expressed to his children in or outside of his presence. Compton was also ordered to visit his children only outside of the neighborhood. Eyre was persuaded by the argument made in court by the attorney for Compton’s wife, David Leavitt, that the neighborhood was a “known haven for polygamy” and the children should not be allowed into a place where people are wantonly committing felonies.
“I think it’s well established that in the best interest of the children, the law can [keep] them away from drug houses and all kinds of criminal activity, and, for decades, bigamy has been a felony,” Leavitt says in an interview with City Weekly.
While the ACLU’s Lowe admits that their legal panel gave the green light to Compton’s case for further inquiry or potential litigation, she says the executive staff decided against it.
“We looked at it and were hoping we could help him, but for various reasons we were unable to,” Lowe says.
Compton has since retained a lawyer, Daniel Irvin, who recently filed an objection to the judge’s temporary order, which has been in effect since August 2007. He maintains that while bigamy is a crime, believing in polygamy without practicing it is not a crime.
Irvin worries that bias in the courtroom adversely affected his client. He says had the ACLU of Utah filed a lawsuit and only took it as far as an initial complaint, at the very least, it could have forced the judge to recuse himself from the case, which would be a “blessing” for Compton.
Irvin, who actually interned with the ACLU of Utah in the early 2000s, was surprised the ACLU didn’t get involved. “I thought they were there to protect our Bill of Rights? This [case] screams ‘Bill of Rights!’ We think you have a right to associate with whoever you want and teach religious principles in your home,” Irvin says.
Old Dog, Old Tricks
As a watchdog, the ACLU of Utah has gone through some changes. At the beginning of the decade, the ACLU of Utah was like a junkyard dog that wouldn’t hesitate to bite down with a lawsuit on city government and the LDS Church. It would even growl at businesses that offered consumer discounts to returned LDS missionaries. Now, as a legislative lobbyist and public educator, the Lassie-like version of the old watchdog is friendlier, easier to pet, but still vigilant of any threat to the Bill of Rights, barking loudly to alert the powers that be when Timmy’s civil liberties have fallen down a well.
Still, it will take some convincing for some attorneys who remember the ACLU of Utah’s lawsuit-filing glory days to adjust to the softer strategy, especially when they avoid courtroom battles like Compton’s.
“The ACLU [of Utah] used to be notorious for jumping into [legal battles] in order to change policy through the court system,” attorney Edwards (pictured at left) writes, “since the political system here is ... uh ... somewhat unfriendly to minorities, women, old people, gays, Democrats, heathens, drinkers, long-hairs, street people ... you get the picture. The ACLU is neither a resource of first resort nor even last resort.”
The jury is not out, however. Some, like Tsai, who have seen the importance of the ACLU of Utah’s grass-roots efforts with helping calm the fears of Utah’s immigrant population, disagree. “The question is if people want to see more lawsuits,” Tsai asks. “Are they willing to consider significantly increasing donations to the ACLU to actually see those lawsuits happen?”
But the old bite may not be completely gone. The ACLU of Utah, partnered with the University of Utah’s Civil Rights Legal Clinic, has been surveying the quality of indigent defense provided for impoverished defendants in Utah’s legal system. With a new legal director who possesses serious litigating credentials, people like Barnard are cautiously optimistic about the ACLU of Utah reforming Utah’s support for poor defendants, which often is ranked among the worst in the nation. With that issue and others, the small but scrappy staff of the ACLU aren’t taking anything off the table when it comes to the good fight.
“Sometimes it takes [legal action], sometimes it’s public education, sometimes it’s legislative—it takes all those things,” McCreary says. “Because the potential of the government to abuse its power or to have the rights of minorities trampled on—it’s kind of human—so we have to keep working with all the tools we have.”
“There may be some things we don’t have a choice [but to litigate], in the near future,” says Goddard, chiming in.
“Yeah, so stay tuned,” McCreary says.
|Eric S. Peterson:|