SIM GILL (USB # 6389)

DISTRICT ATTORNEY FOR SALT LAKE COUNTY

PERRIN R. LOVE (USB # 5505) [email protected]
LASHEL SHAW (USB # 13862) [email protected]
Deputy District Attorney
35 East 500 South
Salt Lake City, UT 84111
Telephone: (385) 468-7700
Facsimile: (385) 468-7801
Attorneys for Defendants

IN THE THIRD JUDICIAL DISTRICT COURT

SALT LAKE COUNTY, STATE OF UTAH

CONCERNED COALITION, a Utah

501(c)(4) Not for Profit Corporation; A.B. as
general guardian on behalf of E.L., a minor;
A.W. asgeneral guardian on behalf of E.W., a
SALT LAKE COUNTY’S
minor; H.N. and D.N. as general guardians on
MEMORANDUM IN OPPOSITION
behalf ofL.N., a minor; J.P. as general
TO MOTION FOR TEMPORARY
guardian on behalfof R.P. and S.P., minor
RESTRAINING ORDER AND
children; L.H. as generalguardian on behalf of
PRELIMINARY INJUNCTION
C.H. and T.H., minor children; N.J. and S.J.
as general guardian on behalf of C.J. and A.J.,
minor children; S.S. as general guardian on Case No. 210904453
behalf of D.S. and T.S., minor children; K.W.
as general guardian on behalf of O.W., a
minor; and C.P., as general guardians on Honorable Vernice Trease
behalf of minor children M.P., L.P., and D.P.
Plaintiffs,
v.
SPENCER J. COX, in his official capacity as
GOVERNOR OF UTAH; and SALT LAKE
COUNTY;

Defendants.
 TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................................... iii

STATEMENT OF RELIEF REQUESTED AND GROUNDS THEREFORE.............................. 1
FACTS ............................................................................................................................................ 1
ARGUMENT .................................................................................................................................. 4
I. THE REQUESTED RELIEF IS NOT LEGALLY APPROPRIATE. ................................ 4
A. The Motion Is Not Properly Before the Court. ............................................................. 5
B. The Relief Requested in the Motion Goes Far Beyond the Relief Requested by the
Complaint................................................................................................................................ 6
C. The Requested Relief Is Not Tailored in Any Meaningful Way to the Alleged Harms.
8
i. The Sought Injunction is Overbroad. ........................................................................... 8
ii. The Sought Injunction Would Not Alleviate Plaintiffs’ Alleged Harms. ............... 11
D. With Respect to Plaintiffs’ Third, Fourth, Fifth, and Sixth Causes of Action, the
Injunction Would Have No Effect in Alleviating Any Harm Experienced by the Plaintiffs
Without the Participation of the School Boards or Districts................................................. 15
E. With Respect to Plaintiffs’ First and Second Causes of Action, a Temporary
Restraining Order or Preliminary Injunction Is Not an Appropriate Mechanism by Which to
Obtain the Requested Relief. ................................................................................................ 18
II. PLAINTIFFS HAVE NOT SHOWN A RIGHT TO ANY EMERGENCY RELIEF
UNDER RULE 65A. ................................................................................................................ 20
A. The Requested Relief Would Disrupt, Not Maintain, the Status Quo........................ 21
B. Plaintiffs Have Not Met Their Burden to Show Irreparable Harm. ........................... 22
C. The Balance of Harms Does Not Favor the Plaintiffs. ............................................... 22
D. The Requested Relief Is Not in the Public Interest. ................................................... 23
E. Plaintiffs Can Not Demonstrate Likelihood of Success on the Merits. ...................... 24
i. The Free Nonsectarian Schools Provision of the Utah Constitution Does Not Create a
Broad Right to In-Person Education Regardless of Individual Circumstances. ............... 26
ii. The County Has Not Violated the Plaintiffs’ Due Process Rights Under the State
Constitution. ...................................................................................................................... 29
iii. The Plaintiffs Have Not Demonstrated a Likelihood of Success on the Merits on
Their Newly Asserted Fifth and Sixth Causes of Action.................................................. 32
CONCLUSION ............................................................................................................................. 35

ii
 TABLE OF AUTHORITIES
Cases
Aquagen Int’l, Inc. v. Calrae Trust, 972 P.2d 411 (Utah 1998) ................................................... 20
Armour v. City of Indianapolis, 566 U.S. 673 (2012)................................................................... 30
Bastian v. King, 661 P.2d 953 (Utah 1983) ............................................................................ 23, 24
Bergstrom v. State of Utah, Case No. 200907643 (Third District Court of Utah, Jan. 27, 2021) 28
Berman v. Parker, 348 U.S. 26 (1954) ......................................................................................... 23
Berube v. Fashion Centre, Ltd., 771 P.2d 1033 (Utah 1989) ....................................................... 24
Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441 (1915) ....................................... 32
Birch Creek Irr. v. Prothero, 858 P.2d 990 (Utah 1993) .............................................................. 22
Bott v. DeLand, 922 P.2d 732 (Utah 1996)................................................................................... 35
ClearOne Communications, Inc. v. Bowers, 643 F.3d 735 (10th Cir. 2011).................................. 8
Hanson v. Church, 2012 WL 95578 (D.N.H. Jan. 12, 2012) ......................................................... 6
Henderson v. Ogden City Ry. Co., 7 Utah 199, 26 P. 286 (1891) ................................................ 19
Hootch v. Alaska State-Operated School System, 536 P.2d 793 (Alaska 1975) ..................... 27, 28
Hunsaker v. Kersch, 1999 UT 106, 991 P.2d 67 .......................................................................... 21
I.M. Wilson, Inc. v. Grichko, 2019 WL 5394113 (E.D. Penn. Oct. 22, 2019) ................................ 8
Krejci v. City of Saratoga Springs, 2013 UT 74, 322 P.3d 662 ................................................... 24
L C & S, Inc. v. Warren Cnty. Area Plan Comm’n, 244 F.3d 601 (7th Cir. 2001)....................... 32
Little v. Jones, 607 F.3d 1245 (10th Cir. 2010) .............................................................................. 6
Logan City School Dist. v. Kowallis, 94 Utah 342, 77 P.2d 348 (1938) .......................... 26, 27, 28
Millbrook v. Matevousian, 812 Fed. App’x 794 (10th Cir. 2020) .................................................. 6
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, (1983) 30
O Centro Espirita Beneficiente Unaio Do Vegetal v. Ashcroft, 389 F.3d 973 (10th Cir. 2004) ... 7,
20, 26
ONX USA LLC v. Sciacchetano, 2012 WL 2191206 (N.D. Ohio June 14, 2012) .......................... 6
Parkridge v. City of Seattle, 573 P.2d 359 (Wash. 1978) ............................................................. 24
Petrella v. Brownback, 787 F.3d 1242 (10th Cir. 2015)............................................................... 30
Ryan v. Gold Cross Servs., Inc., 903 P.2d 432 (Utah 1995) ......................................................... 31
Salt Lake City Corp. v. Haik, 2019 UT App 4, 438 P.3d 913....................................................... 31
Salt Lake City v. Bd. of Educ. of Salt Lake City, 52 Utah 540, 175 P. 654 (1918) ....................... 34
Smith v. Simas, 2014 UT App 78, ¶ 20, 324 P.3d 667 .................................................................... 8
Sonia v. Rainer, 2020 WL 1957005 (W.D. Wash. Mar. 10, 2020) ................................................ 6
Spackman v. Bd. of Educ. of Box Elder Cnty. Sch. Dist., 2000 UT 87, 16 P.3d 533 .................... 35
Starkey v. Bd. of Educ. of Davis Cnty. Sch. Dist., 381 P.2d 718, 720 (Utah 1963) ...................... 27
State v. Angilau, 2011 UT 3, 245 P.3d 745................................................................................... 30
State v. Candedo, 2010 UT 32, 232 P.3d 1008 ............................................................................. 30
State v. Lujan, 2020 UT 5, 459 P.3d 992 ...................................................................................... 29
System Concepts, Inc. v. Dixon, 669 P.2d 421 (Utah 1983) ......................................................... 20
Tom Doherty Assocs., 60 F.3d 27, 35 (10th Cir. 1995) .................................................................. 7
U.S. R.R. Retirement Bd. v. Fritz, 449 U.S. 166 (1980) ............................................................... 31
Utah Chapter of Sierra Club v. Utah Air Quality Bd., 2006 UT 74, 148 P.3d 960........................ 9
Utah School Boards Ass’n v. Utah State Bd. of Educ., 2001 UT 2, 17 P.3d 1125 ........... 33, 34, 35

iii
Williamson v. Lee Optical of Oklahoma, 348 U.S. 483 (1955) .................................................... 30
Young v. Salt Lake City, 24 Utah 321, 67 P. 1066 (1902) ............................................................ 19
Zagg v. Harmer, 2015 UT App 52, 345 P.3d 1273 ...................................................................... 20
Statutes
29 U.S.C. § 701 et seq....................................................................................................... 10, 17, 25
Utah Code § 26A-1-114 ......................................................................................................... passim
Utah Code § 53E-3-401 ................................................................................................................ 35
Utah Code § 53G-9-202 ................................................................................................................ 34
Utah Code § 53G-9-203 ................................................................................................................ 34
Utah Code § 53G-9-206 ................................................................................................................ 34
Utah Code § 53G-9-210 ...................................................................................................... 7, 25, 32
Utah Code § 53G-9-302 ................................................................................................................ 34
Utah Code § 53G-9-402 ................................................................................................................ 34
Utah Code § 53G-9-502 ................................................................................................................ 34
Utah Code § 53G-9-602 ................................................................................................................ 34
Secondary Sources
Apoorva Mandavilli, Covid Vaccine Prompts Strong Immune Response in Younger Children,
Pfizer Says, NEW YORK TIMES (Sept. 20, 2021) ....................................................................... 23
Bryan Schott, Cox Mulling Executive Order to Circumvent State Law Banning Mask Ban at
Schools, SALT LAKE TRIBUNE (Aug. 25, 2021) ........................................................................ 16
CJS Injunction § 376....................................................................................................................... 8
Leia Larsen, Mask Mandate Extended in Salt Lake City Schools by City Council, SALT LAKE
TRIBUNE (Sept. 14, 2021).......................................................................................................... 12
Rules
Utah R. Civ. P. 19 ......................................................................................................................... 17
Utah R. Civ. P. 65A ............................................................................................................... passim
Constitutional Provisions
Alaska Const. Art. VII, sec. 1 ....................................................................................................... 27
Utah Const. Art. I, sec. 7 ............................................................................................................... 29
Utah Const. Art. X, sec. 1 ................................................................................................. 26, 28, 33
Utah Const. Art. X, sec. 3 ....................................................................................................... 33, 34

iv
 STATEMENT OF RELIEF REQUESTED AND GROUNDS THEREFORE

The County respectfully requests that the Court deny the Motion for a Temporary

Restraining Order and Preliminary Injunction Pursuant to U.R.C.P. 65A (the “Motion”) because,

as set forth more fully below, the Plaintiffs have not met their burden of showing that this

extraordinary relief is justified and appropriate in this case. Furthermore, this case raises serious

issues about the separation of powers and the jurisdiction of the courts that should not be ignored

in a rush to provide Plaintiffs with the relief they have requested.

As a prefatory matter, the County acknowledges that mask requirements are a deeply

divisive issue—indeed, as the Complaint makes clear not all of the elected and appointed

officials of the County agreed on whether masks should be required in elementary schools.

Furthermore, in filing this Memorandum, the County does not mean to minimize the challenges

that the Plaintiffs are facing due to COVID-19. Nevertheless, the Complaint and Motion simply

do not support any preliminary relief under Rule 65A, let alone the overly broad relief that the

Plaintiffs seek. Under the applicable legal standards, the Motion fails regardless of whether or

not school mask mandates are good policy or medically effective.

As the response to this Motion is due prior to any response to the Complaint under the

scheduling order entered by the Court, the County expressly reserves the right to supplement its

arguments and defenses regarding the underlying Complaint after this Motion is resolved.

FACTS

For the limited purpose of contesting this emergency Motion, the County does not dispute

the veracity of the facts set forth in Plaintiffs’ Motion and Memorandum in Support of the

1
Motion regarding the Plaintiffs’ medical needs and educational circumstances or the

transmission of COVID-19, although the County does contest that these facts support or provide

a basis for the requested relief, as set out below. However, the County does not agree that when

“the Salt Lake County Council voted 6-3 to terminate Public Health Order 2021-2” it “did so

without explanation or justification.” Memorandum in Support of Motion at 4. 1

First, a legal justification is set out on the face of the Resolution itself. Resolution 5888

states that under Utah Code Sections 26A-1-114(7)(d) and (9)(a)(iii), “the Salt Lake County

Council, acting in its capacity as the legislative body for Salt Lake County, may at any time

terminate an order of constraint issued by the Salt Lake County Health Department” and that the

Council “now intends to exercise its legislative prerogative to terminate the order of constraint

issued by the Salt Lake County Health Department on August 11, 2021.”

Second, further explanation and justification are set out in the Complaint itself. At least

two of the County Council members are quoted in the Amended Complaint on their reasons for

voting to adopt Resolution 5888. From Aimee Winder Newton, “I cannot, in good conscience,

tell a parent that government knows better than they do for their child.” Second Amended

Complaint at ¶ 38. And Dea Theodore stated “Government’s role is not to mandate compliance

for the littlest among us . . . that is the role of parents. Government can inform and assist, but

ultimately, this decision should be left up to parents. We live in a free society, we must allow

citizens to make their own decisions.” Second Amended Complaint at ¶ 39.

Third, similar justifications were also provided at the time of the vote, on the record of

1
Plaintiffs’ Memorandum in Support of the Motion does not include page numbers.
Accordingly, for purposes of citing to that document herein, the County refers to the Adobe PDF
pagination.

2
the public meeting. As Councilmember Laurie Stringham, a school teacher who taught both in

schools and remotely during the pandemic, observed immediately before she voted in favor of

Resolution 5888: “I’m going to tell you right now this is not a cut and dry easy decision for

anybody who is up here. . . . If it were that simple, we wouldn’t be here today. I’m telling you I

have slept hardly at all since early Monday” when “thousands of emails [and] text messages”

began pouring in. Salt Lake County Council Meeting, Special Session (Aug. 12, 2021), attached

hereto as Exhibit A, Statement of Councilmember Laurie Stringham beginning at 9:20. “I’ve

spent days like everybody here talking to doctors, talking to nurses who contacted us, talking to

superintendents, teachers, students, we’ve heard all of it.” Id. “So, for me, I had to decide what

is the most minimal disruption right now and there’s where I’m going to vote today. What I see

is the most minimal disruption for these kids for both their health and their wellness and their

mental health. And I’m sure everybody here can make that exact same claim, there’re just going

to analyze the data differently.” Id.

Councilmember Aimee Winder Newton stated in the meeting: “It’s difficult because none

of us have a crystal ball to see how our decisions today impact the future. I’m grateful for those,

all of you, who’ve emailed, called, messaged, and visited with us. . . . I listen to all of you.”

Exhibit A, Statement of Councilmember Aimee Winder Newton, beginning at 16:00. 2 She

continued “Please know that I don’t make this decision lightly. My vote today is going to be

based on two things. The data and what I know about parents. . . . Each child is unique and has

different challenges; there should not be a one size fits all for kids. I believe the right solution is

2
This statement is also recorded in the minutes from the meeting, which are attached hereto as
Exhibit B.

3
to allow parents to decide what is best for their child.” Id.

Councilmember Richard Snelgrove made similar comments: “I’ve received thousands of

emails and many phone calls from parents seeking relief from the mask mandate for their

children who say they have experienced psychological and emotional trauma due to their use. . . .

I agree to wear or not wear should be left to caring and loving parents who are best equipped to

make the proper decisions for their children’s physical, psychological and emotional health.”

Exhibit A at Statement of Councilmember Richard Snelgrove, beginning at 23:08; see also

Meeting Minutes, Exhibit B, at page 4.

Councilmember Dea Theodore also read a statement, which mirrored the email quoted by

the Plaintiffs in the Complaint. Exhibit A at Statement of Councilmember Dea Theodore,

beginning at 21:15. Far from providing “no justification,” the Salt Lake County

Councilmembers discussed at length the reasons for enacting Resolution 5888, the comments

they received from the public in support of it, and their thoughtful deliberative process in coming

to a decision.

ARGUMENT

I. THE REQUESTED RELIEF IS NOT LEGALLY APPROPRIATE.

The Motion requests that the Court enter an order “restraining the Defendants from

enforcing HB1007 [sic], SB 195, and subsequent Salt Lake City Council Resolution No. 5888

and implementing Public Health Order of Constraint No. 2021-2 issued by Dr. Angela Dunn on,

[sic] mandating mask [sic] throughout K-12 public schools in Salt Lake County.” 3 Motion at 2.

3
Similarly, Plaintiffs’ Memorandum asks the Court to “restor[e] Public Health Order of
Constraint No. 2021-2 issued by Dr. Angela Dunn mandating masks throughout K-12 public
schools in Salt Lake County.” Memorandum in Support of Motion at 12.

4
Regardless of whether or not Plaintiffs can meet their burden for emergency relief, the relief that

they have requested is not legally appropriate for several reasons.

A. The Motion Is Not Properly Before the Court.

The Motion states that “a temporary restraining order or preliminary injunction is the

appropriate legal remedy” but provides that “Plaintiffs will suffer immediate irreparable harm

unless the Court issues a temporary restraining order,” provides that a “temporary restraining

order is not contrary to public interests” and weighs the balance of harms for purposes of “the

issuance of a temporary restraining order.” Similarly, the Memorandum in Support of the

Motion requests that the “Court should issue a temporary restraining order and the matter should

be set for a preliminary injunction hearing.” But Plaintiffs’ conduct since filing the Motion

suggests that they are seeking a preliminary injunction, not a temporary restraining order. See

Stipulated Motion for Briefing Schedule, filed August 31, 2021; Stipulated Motion for Briefing

Schedule, filed September 9, 2021. This distinction matters. Pursuant to Rule 65A, a temporary

restraining order:

shall expire by its terms within such time after entry, not to exceed 14 days, as the court
fixes, unless within the time so fixed the order, for good cause shown, is extended for a
like period or unless the party against whom the order is directed consents that it may be
extended for a longer period.

Utah R. Civ. P. 65A(b)(2). In other words, a temporary restraining order is effective for only a

short period of time and must be renewed at least every fourteen days to continue in effect. To

the extent that Plaintiffs are seeking both a temporary restraining order and a preliminary

injunction, the Court should not issue a temporary restraining order but consider only whether or

not a preliminary injunction is warranted.

Furthermore, the Motion was filed on August 27, 2021 and the Complaint was

5
subsequently amended, on Wednesday, September 8, 2021. No effort to amend the Motion or

conform it to the new pleading was made. There is necessarily a close nexus between the

operative complaint and any request for relief under Rule 65A; indeed, in seeking temporary

relief, a plaintiff “must establish a relationship between the injury claimed in the party’s motion

and the conduct asserted in the complaint.” Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010)

(cleaned up); see also Millbrook v. Matevousian, 812 Fed. App’x 794, 796 (10th Cir. 2020)

(“And without [a] complaint, the district court could not determine whether [the plaintiff] was

substantially likely to succeed on the merits.”) Given this, it is not clear that the Motion remains

properly before the Court. See, e.g., Sonia v. Rainer, 2020 WL 1957005 at * 1 (W.D. Wash.

Mar. 10, 2020) (explaining that upon amendment of a complaint, “the asserted basis for the

preliminary injunction is no longer before the Court” and “[i]f Plaintiff wishes to seek

preliminary injunctive relief based on the amended complaint, she may file a renewed motion

after the amended complaint has been filed.”); ONX USA LLC v. Sciacchetano, 2012 WL

2191206 at *3 (N.D. Ohio June 14, 2012) (finding motion for temporary restraining order and

preliminary injunction filed in connection with original complaint were “moot” once Court

granted leave to file an amended complaint); Hanson v. Church, 2012 WL 95578 at *2 (D.N.H.

Jan. 12, 2012) (where motion to amend complaint was granted, ruling on motion for preliminary

injunction “is deferred pending receipt” of an “amended request for a preliminary injunction”).

B. The Relief Requested in the Motion Goes Far Beyond the Relief Requested by
the Complaint.

The Complaint seeks judgment that Utah Code Sections 26A-1-114(7)(d) and (9)(a)(iii)

and 53G-9-210(5) are unconstitutional. But the Motion seeks to enjoin HB 1007 and SB 195.

These bills contained the challenged provisions, but also extensive additional legislation.

6
Indeed, SB 195 is a 69-page bill amending 27 existing statutes and enacting two new statutes.

While less extensive, HB 1007 also spanned several statutes and made revisions far beyond the

addition of Utah Code § 53G-9-210(5). The relief expressly requested by the Motion is

staggeringly overbroad compared to the legal provisions that the Complaint and Memorandum in

Support of the Motion allege to be unconstitutional.

Even if the Motion is generously construed to seek to enjoin only Utah Code Sections

26A-1-114(7)(d) and (9)(a)(iii), Section 53G-9-210(5), and Resolution 5888, rather than HB

1007 and SB 195 in their entirety as it states, the relief sought is still highly disfavored. A

heightened standard applies to preliminary injunctions that provide the movant with all relief that

could be obtained at trial. See O Centro Espirita Beneficiente Unaio Do Vegetal v. Ashcroft, 389

F.3d 973, 1003 (10th Cir. 2004). In this case, because of the rapidly evolving nature of the

pandemic and the pending approval of COVID-19 vaccines for schoolchildren, a preliminary

injunction would render a trial on the merits largely meaningless. See Tom Doherty Assocs., 60

F.3d 27 (10th Cir. 1995) (explaining that a plaintiff must show a “clear or substantial showing of

a likelihood of success on the merits” where the relief sought would supersede a trial on the

merits due to “temporal concerns”).

Furthermore, the Motion’s requested relief misstates the scope of Public Health Order of

Constraint No. 2021-2, which only applied to “students attending kindergarten through grade 6 at

public, private, or charter school.” Public Health Order of Constraint No. 2021-2 at § 2 (Aug.

11, 2021), submitted as Attachment A to the Memorandum in Support of the Motion. Plaintiffs’

request for a mask mandate for “K-12 public schools” purports to rely on the Public Health

Order of Constraint No. 2021-2 but actually sweeps far more broadly, effectively asking the

7
Court to supersede not only judgment of the Salt Lake County Council, but also that of the Salt

Lake County Public Health Department.

C. The Requested Relief Is Not Tailored in Any Meaningful Way to the Alleged
Harms.

“It is well settled that an injunction must be narrowly tailored to remedy the harm

shown.” ClearOne Communications, Inc. v. Bowers, 643 F.3d 735, 752 (10th Cir. 2011)

(cleaned up). Furthermore, “injunctive relief is not appropriate where the requested injunction

would be ineffectual.” Smith v. Simas, 2014 UT App 78, ¶ 20, 324 P.3d 667. As one treatise has

summarized:

The restraint imposed must be minimal and accomplish only what is clearly necessary to
be done during the pendency of the action. . . . Injunctions must be narrowly drawn and
precise, and never more extensive in scope than is necessary to protect the interests of the
aggrieved parties. In addition, the restraint ordinally should not be broader than that which
is asked in the bill or complaint.

CJS Injunction § 376; see also I.M. Wilson, Inc. v. Grichko, 2019 WL 5394113 at *4 (E.D. Penn.

Oct. 22, 2019) (“[T]he preliminary injunction must protect a plaintiff from the cause of

irreparable harm and nothing more.”). The relief requested here does not meet these legal

standards, as it is both overbroad and would not alleviate the alleged irreparable harm.

i. The Sought Injunction is Overbroad.

Plaintiffs are the guardians of 15 minor children, 4 suing in their individual capacities on

4
This is somewhat unclear. Compare Motion at 2(a) (“Plaintiffs’ minor children cannot attend
public school due to increased risk of COVID-19”) with Motion at 2(b) (“Plaintiffs, by virtue of
their underlying learning disabilities and developmental delays, cannot meaningfully engage in
remote learning”) with Memorandum in Support of Motion at 4 (“Plaintiffs are children with
disabilities and their parents or guardians”). It is also unclear whether the Motion is brought on
behalf of each of the minor children, or only those with heightened risk. See Memorandum in
Support of the Motion at pages 4–7. For purposes of this Memorandum in Opposition, Plaintiffs

8
behalf of their children. 5 Assuming that siblings attend the same school, Plaintiffs likely attend

ten different schools, more or less. Plaintiffs do not ask this court to enter an order to

temporarily remedy the alleged irreparable harm to them or at their schools; they seek relief that

would govern 137 public elementary schools and 72,000 students in Salt Lake County, 6 as well

as private and charter schools and students (the impact of the requested relief is even broader if

Plaintiffs intended to ask that seventh through twelfth grade should also be subject to a mask

mandate).

The Plaintiffs allege that they will suffer irreparable harm “by virtue of their underlying

learning disabilities and developmental delays” because they “cannot attend public school setting

due to increased risk of COVID-19,” and “cannot meaningfully engage in remote learning.”

assume that the Motion is being brought by each of the named guardians on behalf of each of the
children identified in the case caption.
5
Concerned Coalition, a Utah 501(c)(4) Not for Profit Corporation, is also named as a Plaintiff in
the Complaint. However, this organization does not appear to be one of the moving parties and
the Motion alleges no harm to anyone other than the individually named Plaintiffs. See
Memorandum in Support of the Motion at pages 4–7. Similarly, the only reference to Concerned
Coalition in the Complaint is the statement that “Plaintiff, CONCERNED COALITION, is a
Utah 501(c)(4) Not for Profit Corporation.” Second Amended Complaint at ¶ 1. This bare
statement fails to establish that the organization itself was harmed (for traditional standing), who
its members are (for traditional associational standing), or that its presence is necessary to
effectively assist the Court in reviewing the questions presented (for alternative standing). See
Utah Chapter of Sierra Club v. Utah Air Quality Bd., 2006 UT 74, 148 P.3d 960.
6
As of the beginning of the school year, Granite School District had 60 elementary schools and
25,770 elementary school students, Jordan School District had 41 elementary schools and 28,988
elementary students, Canyons School District had 29 elementary schools and 14,213 elementary
students, and Murray School District included 7 elementary schools and 3,153 elementary
students. Salt Lake School District adds another 27 elementary schools and 10,038 elementary
students, but they are not included here because students attending those schools are currently
required to wear masks pursuant to Salt Lake City Mayor Erin Mendenhall’s emergency
declaration.

9
Motion, at 2. For all but five of the minor children, 7 Plaintiffs do not identify the schools they

children attend or the programs in which they participate.

Plaintiffs’ supporting Affidavits establish that many of the minor children participate in

special programs. Several receive or are eligible to receive accommodations under Section 504

of the Rehabilitation Act, 29 U.S.C. § 701 et seq. See Second Amended Complaint at ¶ 4;

Affidavit of Ashely S. Weitz, attached to the Second Amended Complaint (“Weitz Affidavit”), at

¶ 6; Affidavit of Sarah Bea Satter, attached to the Second Amended Complaint (“Satter

Affidavit”), at ¶¶ 5, 8, & 10; Affidavit of Nathan Jeffs and Sarah Jeffs, attached to the Second

Amended Complaint (“Jeffs Affidavit”), at ¶ 9; Affidavit of Hoan Nguyen and Dawn Nguyen,

attached to the Second Amended Complaint (“Nguyen Affidavit”), at ¶ 4. Plaintiffs do not

describe what this means for their children’s in-person educational needs. There is no suggestion

that any of the minor children mingle with or are separate from the general student population,

whether actions can be taken at any of their schools that would affect them or their classrooms,

but not the general population, whether the students have attempted to request a masked

classroom as part of their IEP, and so forth.

For example, Ashley Weitz’s Affidavit confirms that her complaint lies with the Salt

Lake City School District, which is not a party to this litigation. Ms. Weitz states that before the

pandemic, her child had a “504 plan and had begun the special education/individualized plan

(IEP) evaluation process,” but that because of the pandemic she has been waiting 560 days for

the evaluation to be completed.” Weitz Affidavit at ¶¶ 6-7. Ms. Weitz states that she “has been

7
L.N. attends Wasatch Elementary in Salt Lake City, C.H. and T.H. attend Eastwood Elementary
in the Granite School District, M.S. attends West High School and D.S. attends Whittier
Elementary, both in Salt Lake City. See Amended Complaint at ¶¶ 4, 6.

10
told that some testing can’t be done remotely” and makes a conclusory assertion that because

“the district is unable to require masking in district buildings, our family is left without any safe

and/or reasonable accommodation.” Id. at ¶ 8. Such a conclusory assertion cannot meet

plaintiffs’ burden to establish irreparable harm, because it does not identify the testing to be done

or explain why measures other than a county-wide mask mandate would not protect her child

during the testing (i.e., wearing an N95 mask, requesting the person conducting the testing be

vaccinated and/or wear a mask, doing the testing outdoors, or practicing social distancing during

and hand washing before and after the testing).

Similarly, the Plaintiffs have not met their burden to show that remote learning is

inadequate. While the Memorandum in Support of the Motion cites to an article in the Wall

Street Journal noting that remote learning was ineffective where “students [had] no computers or

internet access,” “[t]eachers had no experience with remote learning,” and “many districts

weren’t requiring students to do any work at all,” there has been no showing or attempted

showing that the Plaintiffs do not have internet access, and little discussion about the teachers’

experience and districts’ requirements. Indeed, many of the Plaintiffs’ declarations are silent on

whether or not their children have been offered remote or virtual public education, let alone why

those options are not adequate.

ii. The Sought Injunction Would Not Alleviate Plaintiffs’ Alleged Harms.

The affidavits attached to the Complaint make it clear that many parents are facing tough

choices in deciding how to educate their children during a pandemic. But the relief Plaintiffs

seek would not eliminate their risk. On August 20, 2021, Mayor Mendenhall exercised her

emergency powers to make face masks mandatory at all schools in Salt Lake City. The

11
Declaration is effective for 30 days unless an “extension is authorized by the Salt Lake City

Council by resolution, or it is otherwise terminated,” 8 and a further 30-day extension was

authorized by the Salt Lake County Council on September 14, 2021. 9 At least five of the minor

children, A.W., L.N., M.S., D.S., and T.S., attend school in Salt Lake City. See Second

Amended Complaint at ¶¶ 3, 4, & 8. These children, and any of the other plaintiffs who do not

identify their school but are within Salt Lake City School District, would be in classrooms

subject to mask requirements whether or not the requested relief is granted.

Importantly, this mask mandate, like the mask mandate requested by Plaintiffs on a

County-wide basis, has not eliminated the risk of COVID-19 transmission in elementary schools.

While compliance with the mask mandate has been nearly universal, as of September 13, 2021

Salt Lake City School District reported 41.1 school-aged COVID-19 cases per 10,000 people,

compared to 47.3 school-aged cases per 10,000 people in Murray School District and 48.2 in

Canyons School District, where no mask requirement is in place. Leia Larsen, Mask Mandate

Extended in Salt Lake City Schools by City Council, SALT LAKE TRIBUNE (Sept. 14, 2021),

available at https://www.sltrib.com/news/politics/2021/09/14/salt-lake-city-council/. Thus, many

of the Plaintiffs are already subject to a school mask mandate but even that mask mandate is not

necessarily affording them relief from the irreparable harm Plaintiffs allege.

For instance, Ashley Weitz states that A.W., who attends school within the Salt Lake City

School District, has “chronic health conditions” and that her “healthcare providers recommend

not returning to in-person school until vaccines are widely available to their age group and this

8
Declaration of Local Emergency and Exercise of Emergency Powers, No. B. of 2021, attached
as Exhibit C.
9
Salt Lake City Council Resolution No. 32 of 2021, attached as Exhibit D.

12
year’s respiratory season has passed.” Weitz Affidavit at ¶ 4. Plainly this court cannot order

relief that will make vaccines widely available to young children or shorten the respiratory

season. By her admission, Ms. Weitz would not return her daughter to in-person school in the

absence of those two developments.

Another affiant, Sarah Satter, states that her child M.S. is thirteen years old, vaccinated,

and “was supposed to attend the West ELP program this year, but this will not be possible as she

could pass on infection to our son,” D.S., who has a “Compliment 2 immune deficiency,” is on

an “IEP for hearing loss,” and “receives enrichment through the magnet ELP program at

Whittier.” Satter Affidavit at ¶¶ 5, 7-9. Her third child, T.S. is three years old, on an IEP for

speech and language, fine motor and gross motor delays and “was supposed to attend Liberty

Elementary twice a week for Early Intervention” but “will not be able to attend as the teachers

and therapists and students are also not required to mask.” Id. at ¶¶ 10–12. Because West High

and Whittier Elementary are in Salt Lake City and subject to Mayor Erin Medenhall’s order,

M.S. and D.S. would not benefit from temporary relief. And because M.S. attends the ELP

program at West High, which is not an elementary school, Dr. Dunn’s public health order would

not have affected her even if Resolution 5888 had not been passed. Similarly, Liberty

Elementary is in Salt Lake School District and teachers and staff are required to wear face masks

under Mayor Erin Mendenhall’s order. That order does not apply to students like T.S. who have

not yet begun kindergarten, but neither did the Public Health Order of Constraint No. 2021-2

signed by Angela Dunn. Based upon her Affidavit, it is reasonable to infer that Ms. Satter would

not return her children to the schools until each of them is vaccinated.

Jessica Stewart states that her ten-year old son, R.P., has Type I diabetes, and her three-

13
year old son, S.P., has “expressive language delay.” Affidavit of Jessica Stewart, attached to the

Amended Complaint (“Stewart Affidavit”) at ¶¶ 4 & 9. Ms. Stewart states that she briefly

“considered enrolling her ten-year old through Jordan or Salt Lake’s virtual programs, but don’t

feel like it’s fair to make him switch schools multiple times when a vaccine is just a few months

away.” Id. at ¶ 7. Ms. Stewart states that a speech therapist “advised that we enroll [S.P.] in

additional developmental and speech therapy through the Jordan school district, but due to the

risk of exposure to his brother, we don’t feel like it’s an option until my oldest is fully

vaccinated.” Id. at ¶ 10. Based upon her Affidavit, it is reasonable to infer that Ms. Stewart will

withhold her children from in-person schooling until R.P. is fully vaccinated, regardless of a

mask mandate.

The Complaint states that L.N. “is an eleven-year-old with cerebral palsy enrolled in

Wasatch Elementary,” and receives accommodations under Section 504. Amended Complaint at

¶ 4. Her parents’ Affidavit states that that L.N., “currently 11 and unable to be vaccinated,

attends Wasatch elementary, has a history of stroke and seizures which under CDC guidelines

increases her likelihood of getting severely ill from COVID-19.” Nguyen Affidavit at ¶ 3.

Neither the Complaint nor the Affidavit asserts whether L.N. is currently learning remotely or

that (if she is learning remotely) she would return to in-person instruction before she is

vaccinated if face masks were required. The Affidavit provides no support for Plaintiffs’

requested relief.

Three of the minor children, M.P., L.P., and D.P., are siblings who have “no physical pre-

existing conditions,” and are “healthy, intelligent, wonderful people.” Affidavit of Christopher

and Christine Phillips, attached to the Second Amended Complaint, at ¶¶ 5-7; see also Second

14
Amended Complaint at ¶¶ 82-83. Their parents do “not feel like it is safe for their children to

attend in-person school,” Second Amended Complaint at ¶ 10, but the children are not at an

“increased risk of COVID-19” and do not have “underlying learning disabilities and

developmental delays [that mean they] cannot meaningfully engage in remote learning,” Motion

at 2.

Consequently, of the 15 children identified in the Second Amended Complaint, at least

seven provide no support for the temporary relief that Plaintiffs request; in other words, there is

no evidence that the requested relief would materially alleviate the alleged harm experienced by

the children. Even though it appears that, at most, only eight of the named children are not able to

learn remotely and would return to school if there were a mask mandate (assuming that none of

these children are already within Salt Lake City School District or prefer to continue with the

alternative educational arrangements made by their parents), Plaintiffs seek relief that would affect

an additional 72,000 students, more or less. This broad relief, where Plaintiffs offer next to no

consideration to or discussion of whether a narrower order might protect them, whether they can

obtain relief pursuant to an IEP or 504 plan, or whether the requested relief would be sufficient for

them to comfortably return to in-person public school, is wholly unwarranted based on the

pleadings before the Court. Accordingly, the Court should not grant the Motion.

D. With Respect to Plaintiffs’ Third, Fourth, Fifth, and Sixth Causes of Action, the
Injunction Would Have No Effect in Alleviating Any Harm Experienced by the
Plaintiffs Without the Participation of the School Boards or Districts.

If the Court finds that Utah Code Section 53G-9-210(5) is likely unconstitutional and

enjoins it, this would not necessarily lead to mask requirements in each of Plaintiffs’ schools.

Rather, it would only allow the schools to implement their own mask requirements, if they so

15
chose. There is good reason to believe that they would not. In August, Governor Spencer Cox

held a meeting with local health officials and school superintendents from around the state,

where he discussed issuing an executive order allowing local education officials to require masks

in their schools. Bryan Schott, Cox Mulling Executive Order to Circumvent State Law Banning

Mask Ban at Schools, SALT LAKE TRIBUNE (Aug. 25, 2021), available at

https://www.sltrib.com/news/politics/2021/08/25/spencer-cox-offered-an/. At that meeting, the

school “superintendents pushed back because of the heated rhetoric and backlash such a move

would likely bring,” asking the Governor not to issue the order. Id. From the news coverage:

The superintendents rejected Cox’s offer, thinking school administrators were not
qualified to make medical decisions. One person in the meeting said school
officials favored the process put in place by lawmakers, which gives decision-
making power on mandatory masking to health officials with oversight from the
county government. Resistance to Cox’s idea was also rooted in the potential
blowback from the public to a mandatory masking order in schools. Another
participant told The Tribune that the issue is so polarizing, they would be fearful
for the public’s safety if mask-wearing was on the agenda of a local school board
meeting.

Id.

Complete relief in the form of school mask requirements cannot be accorded to the

Plaintiffs under their third, fourth, fifth, and sixth causes of action without further action by the

school districts. This makes them indispensable parties. Rule 19 provides that where non-parties

are “subject to service of process” and would “not deprive the court of jurisdiction,” they “shall”

be joined as parties if (1) without them, “complete relief cannot be accorded among those already

parties” or (2) they have an interest at issue in the suit and are “so situated that the disposition of

the action in his absence may (i) as a practical matter impair or impede [the] ability to protect

that interest or (ii) leave any of the persons already parties subject to a substantial risk of

16
incurring double, multiple, or otherwise inconsistent obligations.” Utah R. Civ. P. 19(a).

The school districts are at the center of the conflict raised in this case. As the entities to

whom Utah Code Section 53G-9-210(5) is directed, the school districts are uniquely positioned

to weigh in regarding the impact of that statute. And regardless of the constitutionality of the

challenged laws, the school districts are best situated to provide the Plaintiffs with appropriately

tailored relief to the extent that they are not being afforded adequate educational opportunities.

See, e.g., Weitz Affidavit at ¶¶ 8–13 (discussing perceived failings of the Salt Lake City School

District, including delays in providing an Individualized Education Program); Stewart Affidavit

at ¶ 6 (“His school isn’t offering a virtual program this year, which is why we’re stuck with

home and hospital”); Satter Affidavit, at ¶ 5 (“She is supposed to be on a 504 for hearing loss,

but we are still waiting for the district to prepare it for middle school”); Jeffs Affidavit at ¶¶ 11,

13-14 (school district will not hold a spot in the DLI program, did not provide support at

beginning of last school year, stopped updating material by the beginning of last March, and are

providing no support this school year). These issues discussed in the affidavits are integrally

intertwined with the affiants’ contentions that their children are at risk. See id. Indeed, the

school districts are obligated under federal law to provide an appropriate education to children

with special needs, learning disabilities, and developmental delays, and their alleged failure to do

so is the irreparable harm advanced by the Motion. See Section 504 of the Rehabilitation Act, 29

U.S.C. § 701 et seq.; Memorandum in Support of Motion at 10; 11–12.

In the absence of the school districts, these issues cannot be resolved and complete,

appropriate relief cannot be accorded to the parties, even on a temporary emergency basis.

Accordingly, the Court should not rule on the Motion without their input and perspective.

17
 E. With Respect to Plaintiffs’ First and Second Causes of Action, a Temporary
Restraining Order or Preliminary Injunction Is Not an Appropriate Mechanism
by Which to Obtain the Requested Relief.

Nor can Plaintiffs obtain the relief they desire with respect to their first and second causes

of action under Rule 65A. Dr. Dunn promulgated Public Health Order of Constraint No. 2021-2

within the legal framework set out by Utah Code § 26A-1-114. Pursuant to the provisions of that

statute, the public health order was terminated by majority vote of the county governing body.

An injunction premised on a finding that the challenged provisions of the statute may be

unconstitutional would not have the effect of reviving the administrative order, rather, it would

merely prevent the county governing body from acting pursuant to that grant of authority in the

future.

Rule 65A of the Utah Rules of Civil Procedure is clear about the permitted form and

scope of a temporary restraining order or preliminary injunction. Under its provisions, “[e]very

restraining order and order granting an injunction . . . shall be specific in terms and shall describe

in reasonable detail . . . the act or acts sought to be restrained.” Utah R. Civ. P. 65A(d)

(emphasis added). And while mandatory injunctions, which require action on the part of an

actor, do exist (although they are subject to an even higher level of scrutiny), the Motion asks

neither that Salt Lake County act nor that it refrain from acting. Rather, it seeks for the Court to

declare an action that already occurred null and void, effectively re-enacting a public health

order that was promulgated within the framework of the allegedly unconstitutional statute.

The Rule does not appear to contemplate temporary restraining orders or preliminary

injunctions that unwind the legal consequences of that which has already been done if no

continuing wrongdoing is underway. Cf. Henderson v. Ogden City Ry. Co., 7 Utah 199, 26 P.

18
286, 287 (1891) (explaining that under a preliminary injunction “the commission or continuance

of [an] act may be restrained. By suffering their property to remain on respondents’ roadbed the

appellants continued the wrong. The act of placing it there had been done, but appellants were

still occupying plaintiffs’ works with their ties and other property. They were continuing the

trespass. To prevent that continuation a mandatory injunction was necessary.”). While the

Plaintiffs have pointed to a continuing harm premised on an alleged wrong that occurred on

August 12, 2021, when the Salt Lake County Council adopted Resolution 5888, they have not

alleged a continuing wrongdoing on the part of the County.

The need to be precise about the type of relief that can be sought under Rule 65A is

especially heightened here, where the injunction sought would unwind legislative action and then

effectively reinstate a public health order that has been terminated. One of the fundamental

principles underlying our system of government is that “Courts cannot legislate or make laws.”

Young v. Salt Lake City, 24 Utah 321, 67 P. 1066, 1067 (1902). The Court can only address the

statutory and constitutional questions and, once those issues are decided, it may enjoin

enforcement of unconstitutional legislation but must allow local officials to determine their

response. The Court cannot use Rule 65A as a vehicle to restore a public health order. 10

In sum, there are many procedural issues with Plaintiffs’ Motion. While the scope of the

Motion is unclear given the briefing schedules and its continued validity is in question given the

amended pleadings, the Motion seeks relief broader than that requested through the Complaint,

the preliminary relief sought would effectively moot the case, the relief sought is not properly

10
Indeed, the fact that the requested relief would encroach so broadly on the authority and
functions of the other branches of government indicates, as Governor Cox sets out in his
memorandum in opposition to the Motion, that this dispute is truly a political question.

19
tailored to and would not even alleviate many of the harms alleged by the Plaintiffs, the Motion

assumes further action on the part of the non-party school districts and requests more than just

injunctive relief in asking the Court to revive a public health order no longer in effect. In light of

these defects, and as set out above, the Motion should be denied. But in addition, as set forth

below, even if the Motion sought only properly limited and appropriately tailored relief, the

Plaintiffs would still be unable to meet their burden to show that any such relief was warranted

on a preliminary basis.

II. PLAINTIFFS HAVE NOT SHOWN A RIGHT TO ANY EMERGENCY

RELIEF UNDER RULE 65A.

Rule 65A provides for “an extraordinary remedy” that “should not be lightly granted.”

System Concepts, Inc. v. Dixon, 669 P.2d 421, 425 (Utah 1983). While the Court has some

discretion, “a restraining order or preliminary injunction may issue only upon a showing by the

applicant” that all four of the Rule 65A(e) factors (irreparable harm, balance of harm, public

interest, and likelihood of success on the merits) have been met. Utah R. Civ. P. 65A(e). Thus,

the burden is on the Plaintiffs, and if even one of the four factors is not met the Motion cannot be

granted. Aquagen Int’l, Inc. v. Calrae Trust, 972 P.2d 411, 413 (Utah 1998). Here the burden on

the Plaintiffs is heightened, including because the Motion seeks to disrupt, not maintain, the

status quo. O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 976–77

(10th Cir. 2004) (preliminary injunctions that alter the status quo, require a party to take action,

or afford the movant all the relief that it could recover at the conclusion of a full trial on the

merits are “disfavored” and “must be more closely scrutinized to assure that the exigencies of the

case support the granting of a remedy that is extraordinary even in the normal course.”); see also

Zagg v. Harmer, 2015 UT App 52, ¶ 8, 345 P.3d 1273, quoting Hunsaker v. Kersch, 1999 UT

20
106, ¶ 8, 991 P.2d 67 (“Injunctive relief is fundamentally preventative in nature, and an

injunction serves to ‘preserve the status quo pending the outcome of the case’”).

A. The Requested Relief Would Disrupt, Not Maintain, the Status Quo.

The Plaintiffs assert, without support, that their Motion would “preserve the status quo,”

Memorandum in Support of Motion at 8, but the facts do not support this. The Complaint was

filed on Monday, August 23, and the Motion came five days later. By the time the Motion was

filed, late in the afternoon of Friday, August 27, elementary school children in Jordan School

District, Murray School District, 11 Canyons School District, 12 and Granite School District had

already been attending classes in the absence of a mask requirement for two weeks. Salt Lake

City School District did not have students begin class until Tuesday, August 24, but those

students are wearing masks pursuant to an emergency order issued by Mayor Erin Mendenhall

and would not be affected by the requested relief. On information and belief, the Plaintiffs have

also begun their school years, whether in private school, through remote learning, or in a home

and hospital program. Many other parents have presumably made decisions about where and

how to educate their children based on the current masking mandates, including parents who

have chosen to send their children to school in the Jordan, Murray, Canyons, or Granite School

Districts specifically because those schools do not require students to wear masks. By the time

the matter comes before the Court, school will have been in session for about two months.

Creation of a mask requirement would not maintain the status quo but disrupt it.

11
Kindergarten in Murray School District did not begin until Monday, August 23, but first
through sixth grade began a week earlier on Monday, August 16.
12
Kindergarten in Canyons School District did not begin until Thursday, August 19 but first
through sixth grade began on Monday, August 16.

21
 B. Plaintiffs Have Not Met Their Burden to Show Irreparable Harm.

In meeting the burden to establish irreparable harm for purposes of relief under Rule

65A, “[m]ere conclusory statements will not suffice.” Birch Creek Irr. v. Prothero, 858 P.2d

990, 995 (Utah 1993). Rather, “an explicit and complete definition of the harm and its

irreparable nature” is required. Id. Plaintiffs have not come close to meeting this burden here.

The harm identified by Plaintiffs is not the risk of infection of COVID-19, but that they

“cannot attend public school setting due to increased risk of COVID-19” caused by a lack of a

mask mandate and “by virtue of their underlying learning disabilities and developmental delays,

cannot meaningfully engage in remote learning.” Motion at 2. But little effort has been made to

identify which, if any, of the Plaintiffs are so situated. It is clear on the face of the declarations

that many of them are not. The allegedly irreparable harm identified in the Motion would not be

suffered by any of the Plaintiffs who can attend in-person private school during the pendency of

this proceeding or who can effectively learn through remote learning or other alternatives

available to them. And, importantly, Plaintiffs have failed to show, beyond some conclusory

allegations, that mask requirements for their classmates will determine whether or not they

receive an appropriate education this school year.

C. The Balance of Harms Does Not Favor the Plaintiffs.

As set out in the sections on the public interest and likelihood of success on the merits

herein, as well as the statements made by the County Councilmembers in voting on Resolution

5888, the balance of harms in this case does not weigh in favor of granting the Motion.

Furthermore, in considering Plaintiffs’ request for the extraordinary and disruptive relief of

22
implementing a mask mandate in the middle of the school year, the Court should also consider

the pending approval of vaccines for children. See Apoorva Mandavilli, Covid Vaccine Prompts

Strong Immune Response in Younger Children, Pfizer Says, NEW YORK TIMES (Sept. 20, 2021),

available at https://www.nytimes.com/2021/09/20/health/covid-children-vaccine-pfizer.html

(“Pfizer and BioNTech plan to apply to the Food and Drug Administration by the end of the

month for authorization to use the vaccine in [children aged 5 to 11 years]. If the regulatory

review goes as smoothly as it did for older children and adults, millions of elementary school

students could be inoculated before Halloween.”)

D. The Requested Relief Is Not in the Public Interest.

The Motion alleges that “Absent some rationale for circumventing the health

department’s mask order, the council’s actions are contrary to the public interest . . . .” Motion

at 11. But as set out above, the County Council members had reasons for their vote. Were the

Court to issue the requested injunction in this matter, it would effectively substitute its own

judgment for that of the Salt Lake County Council, a body of duly elected officials who acted

with considerable public input.

In enacting Resolution 5888, the County Council acted pursuant to Utah Code Section

26A-1-114, which reflects the legislature’s determination that it is in the public interest for the

County Council to make such decisions. “It is the power and responsibility of the Legislature to

enact laws to promote the public health, safety, morals and general welfare of society and this

Court will not substitute our judgment for that of the Legislature with respect to what best serves

the public interest.” Bastian v. King, 661 P.2d 953, 956 (Utah 1983); see also Berman v. Parker,

348 U.S. 26, 32 (1954) (“Subject to specific constitutional limitations, when the legislature has

23
spoken, the public interest has been declared in terms well-night conclusive. . . . The role of the

judiciary in determining whether that power is being exercised for a public purpose is an

extremely narrow one.”); Berube v. Fashion Centre, Ltd., 771 P.2d 1033, 1043 (Utah 1989)

(“The legislature, acting in accordance with constitutional principles and expressing the will of

the people, determines that which is in the public interest and serves the public good.”). “The

adjustment and accommodation of conflicting interests, such as are involved in this case, are for

the Legislature to resolve . . . .” Bastian, 661 P.2d at 956.

Not only is the legislature’s action entitled to deference, but the County Council’s

decision as well. The County Council’s vote reflected their determination, as elected

representatives of the public and in consideration of considerable public input, that terminating

the mask mandate in elementary schools was in the public interest. See Parkridge v. City of

Seattle, 573 P.2d 359, 363 (Wash. 1978) (where a council’s action is legislative in nature, rather

than adjudicative, it is “presumed” to be in the “public interest.”); Krejci v. City of Saratoga

Springs, 2013 UT 74, ¶ 31, 322 P.3d 662 (“The chief hallmarks of legislative action [of a

council] are adoption of rules of general applicability and the weighing of broad, competing

policy considerations.”) (cleaned up).

E. Plaintiffs Can Not Demonstrate Likelihood of Success on the Merits.

Plaintiffs must also show that they are likely to succeed on the merits of their case, as set

out in the operative complaint. As discussed above, the operative complaint at the time that the

Motion was filed was the First Amended Complaint, not the Second Amended Complaint, and

the Motion includes no analysis of Plaintiffs’ fifth and sixth causes of action, which were added

through the Second Amended Complaint.

24
 Both the First Amended Complaint and the Second Amended Complaint assert the same

four causes of action included in the original Complaint. The first cause of action states that

Utah Code Section 26A-1-114(7)(d), permitting a county council to terminate an order of

constraint issued by a local health department, is unconstitutional under the Free Nonsectarian

School provision of the Utah Constitution. The second cause of action alleges that this same

statutory provision violates the Due Process provision of the Utah Constitution. The third cause

of action alleges that Utah Code Section 53G-9-210(5), prohibiting school districts and schools

from requiring students to wear face masks, is unconstitutional under the Free Nonsectarian

School provision of the Utah Constitution, and the fourth cause of action alleges that this same

statutory provision violates the Due Process provision of the Utah Constitution. 13

The Second Amended Complaint added two additional causes of action. The fifth cause

of action alleges that Utah Code Section 53G-9-210(5) violates the legislature’s constitutional

obligation to “provide for the establishment and maintenance of public schools” by making “all

public schools statewide unsafe not only for the plaintiffs, but for all children too young to be

vaccinated.” Second Amended Complaint at ¶ 119. The sixth cause of action alleges that Utah

Code Section 53G-9-210(5) unconstitutionally usurps the power of the State Board of Education.

The Motion is a disfavored one, because it seeks to alter the status quo, would compel

action through a mandatory injunction, and would effectively moot a later full trial on the merits.

See O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 976–80 (10th

13
To the extent that Plaintiffs suggest in their declarations and Motion that other statutory or
constitutional rights have been violated—such as under the United States Constitution, the
Americans with Disabilities Act, or Section 504 of the Rehabilitation Act—those issues are not
properly before the Court in this case.

25
Cir. 2004). In such cases, “in addition to making a strong showing that the balance of the harms

tips in its favor and that the preliminary injunction is not adverse to the public interest,” the

plaintiff must also “demonstrate a substantial likelihood of success on the merits.” Id. at 980

(emphasis added). Showing that the case presents serious issues on the merits which should be

the subject of further litigation is not sufficient. Id.

i. The Free Nonsectarian Schools Provision of the Utah Constitution Does Not
Create a Broad Right to In-Person Education Regardless of Individual
Circumstances.

Article X, Section 1 of the Utah Constitution provides that “[t]he Legislature shall

provide for the establishment and maintenance of the state’s education systems including: (a) a

public education system, which shall be open to all children of the state; and (b) a higher

education system.” Utah Const. Art. X, sec. 1. While this provision does contemplate a right to

public education, it does not sweep nearly so broadly as the Plaintiffs suggest.

Under the Free Nonsectarian School provision, “[f]irstly, the schools must be open to all

children; and, secondly, the common schools shall be free.” Logan City School Dist. v. Kowallis,

94 Utah 342, 77 P.2d 348, 350 (1938) (emphasis in original). “The requirement that the schools

must be open to all children of the state is a prohibition against any law or rule which would

separate or divide the children into classes or groups and grant, allow, or provide one group or

class educational privileges or advantages denied another.” Id. “The schools are open to all

children of the state when there are not restrictions on any child, children, or group of children

which do not apply to all children in the state alike.” Id. at 351. “[T]here is no requirement that

every school building shall be open to every school child in the state.” Id. Rather, the provision

limits “the Legislature, or any other body, making any law or rule which would deny admission

26
to, or exclude from, the public schools any child resident of the state, for any cause except the

child’s own conduct, behavior, or health.” Id. (emphasis added). “[W]hen the public schools

are open to all children on the same and equal terms, compliance has been had with this clause of

the Constitution.” Id.; see also Starkey v. Bd. of Educ. of Davis Cnty. Sch. Dist., 381 P.2d 718,

720 (Utah 1963) (Article X, section 1 of the Utah Constitution “is satisfied where the regular

curriculum of the school is open to all eligible children”).

Thus, the Utah Constitution requires the creation of public schools that are open to

children regardless of race, location, or religion but it does not require that those schools be

appropriate for every child’s individual circumstances, including in accordance with each child’s

medical needs. Kowallis, 77 P.2d at 350–351. Contrary to Plaintiffs’ assertions, there is nothing

in the Utah Constitution or the case law interpreting it that suggests that this right requires in-

person education.

In fact, the relevant cases suggest the exact opposite. In Hootch v. Alaska State-Operated

School System, the Alaska Supreme Court considered a challenge brought under the Alaska

Constitution’s open school provision. 536 P.2d 793 (Alaska 1975). Like Utah’s Constitution,

the Alaska Constitution provides that the legislature “establish and maintain a system of public

schools open to all children of the State.” Alaska Const. Art. VII, sec. 1 (emphasis added). The

plaintiffs, Native children who lived in remote areas of Alaska without public secondary schools,

asserted that this language created a right to local, in-person education. The court disagreed,

explaining that the language “‘open to all’ is a unitary phrase embodying a requirement of

nonsegregated schools” but does not “requir[e] that all options be available to all students.”

Hootch, 536 P.2d at 803. Because the children were afforded other educational opportunities

27
through the public school system, including by correspondence programs, their right to a public

education under the Alaska Constitution was met even though there were no schools which could

be attended in person where they lived. Id.

This Court has agreed. In Bergstrom v. State of Utah, Case No. 200907643 (Third

District Court of Utah, Jan. 27, 2021), Judge Adam Mow considered a motion for preliminary

injunction filed by parents under Article X, section 1 of the Utah Constitution on the basis that

their children were being harmed by the absence of an in-person public school option from the

Salt Lake City School District (which was only providing remote learning due to the COVID-19

pandemic). Order Denying Plaintiffs’ Motion for Preliminary Injunction, attached hereto as

Exhibit E. His order held:

While the Court is sympathetic to the many difficulties Plaintiffs’ children face in trying
to navigate both the current pandemic and the issues with distance learning SLCSD
offers, Plaintiffs’ children have been afforded the access to education guaranteed to them
in Article X, Section 1 of the Utah Constitution. As Starkey and Kowallis clarify, the
Utah Constitution guarantees children access to the curriculum of the school, not access
to their chosen modality of instruction. Plaintiffs’ children are being offered access to
curriculum appropriate to their age and development level through the online instruction
SLCSD offers. They have not faced a restriction on their access to that curriculum that is
not placed on other students in the State.

Id. at 14.

Article X, section 1 of the Utah Constitution requires public schools but does not create a

sweeping right to in-person education regardless of the “child’s own conduct, behavior, or

health.” Kowallis, 77 P.2d at 351. Thus, the Plaintiffs are not likely to succeed on their claims

that the state legislation and county resolution violate this constitutional provision by not

requiring the face masks (or allowing the school district to require the face masks) that they

believe would make in-person education safer due to their individual medical circumstances.

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 ii. The County Has Not Violated the Plaintiffs’ Due Process Rights Under the State
Constitution.

Article 1, Section 7 of the Utah Constitution provides that “No person shall be deprived

of life, liberty or property, without due process of law.” This provision “is not a free-wheeling

constitutional license for th[e] court to assure fairness on a case-by-case basis, but a guarantee of

procedural rights measure by reference to traditional notions of fair play and substantial justice.”

State v. Lujan, 2020 UT 5, ¶ 5 n.1, 459 P.3d 992.

The nature of Plaintiffs’ due process claim is not well-articulated in either the Complaint

or the Motion. However, it appears to turn on one or more of the following premises: 1) that the

legislature and the County Council acted without a “rational basis” (a substantive due process

argument), Second Amended Complaint at page 4; 2) that the County Council provided no

rationale for its Resolution except for after-the-fact justifications, Second Amended Complaint at

¶ 37; and 3) that the Plaintiffs were deprived of their “property interest in their continued access

to public education” (which suggests a traditional procedural due process argument that this

property interest was stripped from them without adequate opportunity to be heard), Second

Amended Complaint at ¶¶ 107–108. This brief will address each of these allegations in turn.

First, Plaintiffs concede that rational basis review would apply to any substantive due

process or equal protection analysis. Second Amended Complaint at 4 (“On its face and as

applied, H.B. 1007 advances no possible legitimate government interest, and fails to satisfy the

‘rational basis’ standard of constitutional scrutiny. As applied, S.B. 195 deprives Salt Lake

County’s decision [sic] to terminate an emergency health order to protect K-6 public school

29
children is irrational and serves no legitimate purpose.”). Under rational basis review, 14 “the

court determines whether the statute or its application is rationally related to a legitimate state

interest.” State v. Candedo, 2010 UT 32, ¶ 17, 232 P.3d 1008. This analysis “is limited to

determining whether the legislature overstepped the bounds of its constitutional authority in

enacting the statute at issue, not whether it made wise policy in doing so.” State v. Angilau, 2011

UT 3, ¶ 10, 245 P.3d 745 (cleaned up). In applying this test, a law “must be upheld if there is

any reasonably conceivable state of facts that could provide a rational basis for it.” Petrella v.

Brownback, 787 F.3d 1242, 1266 (10th Cir. 2015) (cleaned up). The law “is presumed

constitutional,” and “the burden is on the one attacking the legislative arrangement to negative

every conceivable basis which might support it.” Armour v. City of Indianapolis, 566 U.S. 673,

681 (2012). 15 This is a very low standard of review, because a court should not “strike down

state laws . . . because they may be unwise, improvident, or out of harmony with a particular

school of thought,” as in those circumstances “the people must resort to the polls, not to the

courts.” Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 487 (1955) (cleaned up).

Plaintiffs will not be able to show that either Utah Code Section 26A-1-114(7)(d) or

Resolution No. 5888 have no rational basis or legitimate purpose. The legislation provides for

increased oversight of orders of constraint issued by the health authority, an appointed position,

by elected officials. And the resolution, as the Plaintiffs themselves have recognized, was

14
The County agrees that rational basis review would apply as the enactment of Resolution 5888
by the County Council was a legislative action. This review is similar, but not identical to, the
arbitrary and capricious standard applied to the County Council’s administrative actions. See
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42–43 n.
9 (1983) (setting out the distinction between the two standards).
15
While Armour and Petrella are Equal Protection cases, the rational basis analysis under Due
Process is the same. See Armour, 556 U.S. at 681.

30
enacted to preserve the “constitutionally protected right of family autonomy.” Second Amended

Complaint at ¶ 42. The comments from the County Councilmembers set out in the facts section

above demonstrate that they had extensively considered the issues and had reason for their

decision.

Second, as set out above, the County provided a rationale for Resolution No. 5888,

contrary to the assertions of the Complaint. The council members set out the basis for their

decision on the record in the public meeting where the resolution was enacted and, to some

extent, this reasoning is even articulated in the Complaint. This reasoning was not required, but

was provided. See U.S. R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 179 (1980) (“[T]his Court

has never insisted that a legislative body articulate its reasons for enacting a statute.”); Ryan v.

Gold Cross Servs., Inc., 903 P.2d 432, 427 (Utah 1995) (“The court does not limit itself to

considering only those purposes that can be plainly shown to have been held by some or all

legislators [based on the legislative history]. Rather, the court will sustain legislative action if it

can reasonably conceive of facts which would justify the classifications made by the

legislation.”)

Third, no procedural due process right has been violated. Procedural due process only

applies if the Plaintiffs were deprived of an established right—as discussed above, there is no

established right to in-person education under Utah Law. Salt Lake City Corp. v. Haik, 2019 UT

App 4, ¶ 68, 438 P.3d 913 (“To state a claim under [the Due Process Clause of the Utah

Constitution] the plaintiff must allege sufficient facts to show a property or liberty interest

warranty due process protection. And in order to have a valid property interest in a state-created

right, a plaintiff must have more than a unilateral expectation of it; instead, the plaintiff must

31
have a legitimate claim of entitlement to it.”). And, furthermore, both the enactment of the

challenged statutes and the Council’s Resolution were legislative actions, to which no procedural

due process rights attach. See Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441,

445 (1915) (“The Constitution does not require all public acts to be done in town meeting or an

assembly of the whole. General statutes within the state power are passed that affect the person

or property of individuals, sometimes to the point of ruin, without giving them a chance to be

heard.”); L C & S, Inc. v. Warren Cnty. Area Plan Comm’n, 244 F.3d 601, 602 (7th Cir. 2001)

(“‘Legislative due process’ seems almost an oxymoron. . . . The generality of legislation makes

notice by service or otherwise impracticable; many of the persons affected by the legislation will

be unknown and unknowable.”).

Thus, regardless of the nature of Plaintiffs’ due process claims, to the extent those claims

are even adequately set out in the Complaint, they are not likely to succeed on the merits with

respect to those causes of action.

iii. The Plaintiffs Have Not Demonstrated a Likelihood of Success on the Merits on
Their Newly Asserted Fifth and Sixth Causes of Action.

The third, fourth, fifth, and sixth causes of action pertain only to Utah Code Section 53G-

9-210(5), the statutory provision prohibiting school districts from implementing or enforcing

mask mandates. These causes of action do not appear to be asserted against the County, which

enacted Resolution No. 5888 pursuant to Utah Code Section 26A-1-114, the statute invoked only

in Plaintiffs’ first and second causes of action. Furthermore, as discussed above, it does not

appear that Plaintiffs have moved for injunctive relief pursuant to their fifth and sixth causes of

action, which were added through amended of the Complaint only after the Motion was brought.

Nevertheless, in the event that the Court is inclined to consider them, the Plaintiffs are not likely

32
to succeed on the merits of their fifth and sixth causes of action either.

The fifth cause of action, like the first and third, again invokes Article X section 1 of the

Utah Constitution, but that portion which requires the legislature of “provide for the

establishment and maintenance of public schools.” Second Amended Complaint at ¶ 118.

Plaintiffs assert that the prohibition against mask mandates is “incongruous” with this

constitutional right and “makes all public schools statewide unsafe not only for the plaintiffs, but

for all children too young to be vaccinated.” Second Amended Complaint at ¶ 119. As

explained by the Utah Supreme Court, the “legislature has plenary authority to create laws”

creating schools in Utah, with or without this constitutional provision. Utah School Boards

Ass’n v. Utah State Bd. of Educ., 2001 UT 2, ¶¶ 11 & 14, 17 P.3d 1125. The constitutional

provision limits this authority by requiring the legislature to “provide for the establishing and

maintenance of the state’s education systems including . . . a public education system, which

shall be open to all children of the state [and] free from sectarian control.” Utah Const. Art. X

sec 1. If the legislature has fulfilled its obligation to establish and maintain a public education

system open to all children of the state, which it clearly has in accordance with the cases

discussed above, then it has necessarily fulfilled its obligation to establish and maintain a public

education system. See Utah Schools Boards Ass’n, 2001 UT 2 at ¶ 14.

The sixth cause of action relates to a different constitutional provision, Article X section

3, which provides: “The general control and supervision of the public education system shall be

vested in a State Board of Education.” Because the State Board of Education is constitutionally

vested with the power to run the schools, Plaintiffs’ theory is that the statutory provision

prohibiting it from adopting mask requirements is unconstitutional. Second Amended Complaint

33
at ¶¶ 122–123. Salt Lake City v. Bd. of Educ. of Salt Lake City, 52 Utah 540, 175 P. 654 (1918).

But as the Utah Supreme Court has explained, this provision gives “the State Board . . . the

authority to direct and manage all aspects of the public education system in accordance with the

laws made by the legislature.” Utah School Boards Ass’n v. Utah State Bd. Of Educ., 2001 UT 2

at ¶ 22 (emphasis added). There is a long history in Utah of the legislature lawfully giving the

Board of Education and the schools instruction or oversight on matters of public health. See Salt

Lake City v. Bd. Of Educ. Of Salt Lake City, 52 Utah 540, 175 P. 654, 656 (1918) (noting that

while the “Legislature of this state did not cede to the cities of this state the power to regulate the

construction of the public school buildings,” there are statutory provisions limiting the power of

the boards of education “respecting the regulation of health, etc., of public schools.”) Utah Code

Section 53G-9-210(5) is not unconstitutional, any more than its surrounding provisions. See,

e.g., Utah Code § 53G-9-202 (requiring schools to make reasonable efforts to notify parents if

their child is injured or becomes ill at school); Utah Code § 53G-9-203(3)(a) (requiring school

personnel to report suspected child abuse); Utah Code § 53G-9-206 (requiring the school to

furnish mandatory eye protection to any individual participating in chemistry or physics

laboratories using caustic or explosive chemicals or hot liquids); Utah Code § 53G-9-302

(requiring students to provide the school with an vaccine immunization record); Utah Code §

53G-9-402 (requiring each local school board to follow guidelines from Department of Health to

conduct vision, dental, and hearing screening of students); Utah Code § 53G-9-502 (limiting

schools’ ability to administer medication to students); Utah Code § 53G-9-602 (prohibiting

bullying in schools).

Furthermore, contrary to Plaintiffs’ assertions, Article X section 3 of the Utah

34
Constitution is not a self-executing provision under which a party may sue for relief. Under

Spackman, a self-executing provision is “one that can be judicially enforced without

implementing legislation.” Spackman v. Bd. of Educ. of Box Elder Cnty. Sch. Dist., 2000 UT 87,

¶ 7, 16 P.3d 533. “Conversely, constitutional provisions are not self-executing if they merely

indicate a general principle or line of policy without supplying the means for putting them into

effect.” Bott v. DeLand, 922 P.2d 732, 737 (Utah 1996). Article X section 3 falls within the

second category; it creates a State Board of Education and expresses a general principle that the

legislature should delegate authority to it, but this requires further “laws made by the legislature”

and is not self-executing. Utah School Boards Ass’n v. Utah State Bd. Of Educ., 2001 UT 2 at ¶

22; see also Utah Code § 53E-3-401(3) (“The state board may not govern, manage, or operate

school districts, institutions, and programs, unless granted that authority by statute.”). And even

if the State School Board could sue pursuant to this provision, the Plaintiffs would not have

standing to do so.

In sum, Plaintiffs have not shown, and cannot show, a substantial likelihood of success

on the merits of any of their claims, including under the two subsequently-added causes of action

that are not properly before the Court on this Motion.

CONCLUSION

For all the reasons set forth above, the County respectfully requests that the Motion be

denied. The relief the Plaintiffs request is not appropriate, including because it is not tailored in

any meaningful way to the harms they allege, and Plaintiffs have not met their burden on any of

the four required elements of Rule 65A.

35
Dated this 23rd day of September 2021.

Sim Gill
SALT LAKE COUNTY DISTRICT ATTORNEY

/s/ LaShel Shaw

Perrin R. Love
LaShel Shaw
Deputy District Attorneys

36
 CERTIFICATE OF SERVICE

I certify that on September 23, 2021, a true and correct copy of the foregoing

MEMORANDUM IN OPPOSITION TO MOTION FOR TEMPORARY RESTRAINING

ORDER AND PRELIMINARY INJUNCTION, together with four of its five exhibits, was

electronically filed with the Clerk of the Court, utilizing the Court’s electronic filing system

which automatically send notice to all counsel of record.

I further certify that on September 23, 2021, Exhibit A to the foregoing Memorandum in

Opposition was filed conventionally with the Clerk of the Court, and physical copies were

delivered by first-class mail, postage prepaid to the following:

Gregory G. Skordas
Gabriela Mena
Skordas and Caston, LLC
124 South 400 East, Suite 222
Salt Lake City, UT 84111

David Wolf
Lance Sorenson
Jeffrey Teichert
Office of the Utah Attorney General
160 East 300 South, 6th Floor
Salt Lake City, UT 84114

/s/ LaShel Shaw

Attorney

37