An artist's rendering of the Cody Wyoming Temple.©2023 by Intellectual Reserve, Inc. All rights reserved.
(I’m revisiting an issue I covered in a previous posting: On Temples, Controversy and Cody, Wyoming)
When I taught college, I always praised students who actually ended their papers on the same topic they began them on. Yes, this was rare. The tendency to get derailed off onto tangents was endemic.
The whole Cody Temple controversy has also been derailed off onto tangents. I suspect the courts will reorient it onto the central legal and technical issues, much to the disappointment of the temple opponents.
From reading in the news media about the controversy, my only source of information, there is a profound misunderstanding of legal procedure and legal issues. I’m going to try and cut through some of that and explain some basic things.
The courts are not going to redecide the issue on the merits. What that means is that they aren’t going to substitute their judgment and redecide whether the temple is a good idea for Cody.
They will decide if there is sufficient information to determine if the city was justified in approving it and issuing the building permit.
In a talk I heard once from former Justice Christine M. Durham, she remarked, “Trial courts look for truth. Appellate courts look for error.” This can be a good guide on how to think about things, even for the Cody temple.
Procedural Legal Cases
The cases before the courts from either the Church or the opponents, present procedural problems only. The city of Cody approved the temple and issued a building permit. The courts will decide if the city committed any errors in doing so.
They will review the procedure the city and its employees used in approving the temple and issuing the building permit. They will look for any errors in procedure, interpretation of the city code, and so forth.
This is one of the reasons why the judge is focusing entirely on the established record and not allowing the additional records Preserve Our Cody Neighborhoods wants to insert for his judgment.
What the Judge Said
News organizations reported:
In a December filing, Johnson County Judge John R. Perry ruled that allowing the emails and texts as evidence would be wrong because it would allow the court to rule on information not available to the city prior to the Planning and Zoning Board making its decision to approve the temple in August.The Real Technical and Legal Issues
“Certainly, the evidence advanced by POCN might give context to the discretionary political decisions made by city,” Perry wrote in his decision. “However, in the broad range of what is legally acceptable, admitting that evidence in these proceedings is neither required nor does it appear to advance meaningful application of the attendant legal tests.”
So, what are the real technical and legal issues the courts will review in the Cody temple case? I don’t pretend to have an exhaustive list, but I’ll hit the high points.
- Does the proposed temple comply with city code, especially building codes?
- Does the steeple violate any city codes?
- Does approval of the temple violate zoning?
- Did the city correctly interpret its own code when approving the temple?
- Did the city use the proper procedure for approving the temple and issuing the building permit?
Notice that these questions are separate from people and personalities. That is probably why the judge doesn’t consider the “context” from the additional materials important to his task.
Who is biased or in favor of the temple, who worked behind the scenes, who agreed with it or didn’t, these are all irrelevant to the judge’s task.
If the city planner, the board, and the city attorney don’t have the authority and expertise to make judgments on legal codes, building codes, and zoning, who does?
If they don’t know the proper procedure for deciding these issues, who does? I suspect they tried hard to follow everything meticulously.
Courts also won’t have any difficulty deciding whether the Cody Master Plan is legally binding. It either is or it isn’t, regardless of what temple opponents want it to be. Even the city’s website states it is just a “guide”.
News organizations reported this comment in the judge’s decision:
When procedural cases get reversed, it’s often because certain information wasn’t considered when the decision was made, certain procedures were scuttled or not conducted properly, and so forth in the decision-making process. In other words, the decision-making process was flawed in some way, especially if the law requires the decision to be based on certain criteria.
The judge will review the criteria and look for evidence that the criteria were followed. If it wasn’t, he may order that the decision be made again and the excluded information considered and/or the necessary decision-making process conducted properly.
It’s not uncommon for officials to go back and redecide the issue using the proper criteria and procedure and decide the same thing all over again. Courts accept this. Their role is to ensure proper criteria and procedures are used in the decision-making process, not to redecide the issues in the court system.
I can’t imagine that happening with the Cody temple decision. From everything I’ve read, the city bent over backward to consider everything they were supposed to look at and consider. I don’t think anyone can accuse them of making a hasty, incomplete, or flawed decision without public comment and consideration.
Conflict of Interest and Bias
Conflict of interest is a legal issue and the criteria are encased in law. Subjective opinions of ordinary citizens on who has a conflict of interest are not relevant to the courts. They’ll follow the legal definition. Too often the “conflict of interest” stigma is aimed at people’s opponents they don’t agree with and nothing more. The law isn’t that arbitrary. It requires a standard definition applied uniformly.
Bias also has little relevance. Whether someone is biased in favor or against the temple is irrelevant to whether the proper city authorities made the decision using the proper procedure for doing so.
Who is biased or in favor of the temple, who worked behind the scenes, who agreed with it or didn’t, these are all irrelevant to the judge’s task.
If the city planner, the board, and the city attorney don’t have the authority and expertise to make judgments on legal codes, building codes, and zoning, who does?
If they don’t know the proper procedure for deciding these issues, who does? I suspect they tried hard to follow everything meticulously.
Courts also won’t have any difficulty deciding whether the Cody Master Plan is legally binding. It either is or it isn’t, regardless of what temple opponents want it to be. Even the city’s website states it is just a “guide”.
News organizations reported this comment in the judge’s decision:
““All indications are that the City rendered its decision following hours of public hearings, an extensive opportunity for public comment, and specific findings made by the City,” he wrote. “The court further notes that members of POCN presented comments during the public hearings.The Judge is saying he has enough information to render a legal judgment on the issues before him.
“For that reason, the Court finds that all material evidence to decide the conditional use permit has been presented to the City and that there is sufficient evidence to determine the propriety of a … Preliminary Injunction as well as the ultimate issue on appeal.”
When procedural cases get reversed, it’s often because certain information wasn’t considered when the decision was made, certain procedures were scuttled or not conducted properly, and so forth in the decision-making process. In other words, the decision-making process was flawed in some way, especially if the law requires the decision to be based on certain criteria.
The judge will review the criteria and look for evidence that the criteria were followed. If it wasn’t, he may order that the decision be made again and the excluded information considered and/or the necessary decision-making process conducted properly.
It’s not uncommon for officials to go back and redecide the issue using the proper criteria and procedure and decide the same thing all over again. Courts accept this. Their role is to ensure proper criteria and procedures are used in the decision-making process, not to redecide the issues in the court system.
I can’t imagine that happening with the Cody temple decision. From everything I’ve read, the city bent over backward to consider everything they were supposed to look at and consider. I don’t think anyone can accuse them of making a hasty, incomplete, or flawed decision without public comment and consideration.
Conflict of Interest and Bias
Conflict of interest is a legal issue and the criteria are encased in law. Subjective opinions of ordinary citizens on who has a conflict of interest are not relevant to the courts. They’ll follow the legal definition. Too often the “conflict of interest” stigma is aimed at people’s opponents they don’t agree with and nothing more. The law isn’t that arbitrary. It requires a standard definition applied uniformly.
Bias also has little relevance. Whether someone is biased in favor or against the temple is irrelevant to whether the proper city authorities made the decision using the proper procedure for doing so.
As the judge said, it does give “context” but isn’t relevant to the legal issues. A decision on whether a building permit was legally issued doesn’t need to determine if individuals were biased in favor or against it.
Multiple news articles established that the whole “conflict of interest” issue was carefully examined by the relevant officials in charge of doing so. Subjective opinions by individual citizens are not legally relevant however much temple opponents want them to be.
Judges probably won’t be very concerned about whether individual citizens have subjectively determined that the temple steeple violates building codes. The requirements for determining this are clearly articulated in law.
Throwing around accusations of city officials and employees of being corrupt and incompetent also isn’t legally relevant. It’s also incredibly unfair. Why this issue? If they really are corrupt, there would be evidence from other decisions and actions, not just this one.
They are in the positions that endow them with the power and authority to make these decisions. Just because you don’t like the decisions they made doesn’t warrant these nasty accusations.
Irreparable Harm
Opponents of the temple are saying they will experience “irreparable harm” if the temple is built. This is a very high legal standard. One the courts won’t take lightly.
Here’s a legal definition of irreparable harm from the LII:
It’s easier to make this claim than it is to prove it.
City Officials Working With the Church
Opponents of the temple point to all the interaction city staff had with the Church in preparing the materials and approvals for building the temple. They see something sinister in it.
City officials and staff work with people seeking to develop and build in a community all the time. This is standard. There is no reason to have people go through the process and risk refusal when tips from staff can help those wishing to build comply with all legal requirements.
It’s called efficiency and effectiveness. It’s good sense and it’s good procedure. It’s even called (drumroll) good government.
City Planner Todd Stowell
I feel for the man. He undoubtedly knew that having to decide this issue could be career-ending or even life-ending giving the vitriol he knew would be aimed at him. Others undoubtedly knew this too, including the man who offered him a job if everything went south.
It’s a no-win situation for him. One side or the other was bound to vilify him regardless of what he decided. The only rational and reasonable course of action open to him was to follow the law precisely as it is set up as well as utilize every inch of technical expertise he has.
It’s his only safety. I suspect he knows this and conducted himself accordingly.
Reflections
By carefully reading all of the news coverage I could find on the Cody temple, I was able to identify bits and snatches that got played down in the press: There was no legal reason to deny the building permit and there was no legal reason for the mayor to deny issuing the permit once it was approved.
The judge could easily decide the same. Are opponents ready for these developments?
As I stated before, if the roles were reversed, I suspect that opponents of the temple would be screaming that they have the right to build what they want on their own land with their own money as long as they aren’t violating any laws. Neighbors shouldn’t be allowed to control what they do with what they have and what they own.
Future Events
How is all this going to play out? I think the likely scenario is this:
I suspect that instead of addressing and considering any of the points I make, people will attack me and my motives. So, I’ll just be clear about my motivations and reveal my conflicts of interest. Here they are.
I don’t like Wyoming. I don’t like the state, the terrain, or the people. I lived in southwest Wyoming in the 1970s for a short time. There might be a handful of people there who remember me or my family. I don’t have any relatives or friends living in Wyoming that I know of, perhaps just a few acquaintances or people I’ve once met. I don’t think I’ve ever been to Cody. I certainly have no wish to go there. I live in the Midwest.
I DO care about the law, fairness, administration, religious freedom, and temples.
I dare anyone to accuse me of bias, collusion, and/or conflict of interest.
Multiple news articles established that the whole “conflict of interest” issue was carefully examined by the relevant officials in charge of doing so. Subjective opinions by individual citizens are not legally relevant however much temple opponents want them to be.
Judges probably won’t be very concerned about whether individual citizens have subjectively determined that the temple steeple violates building codes. The requirements for determining this are clearly articulated in law.
Throwing around accusations of city officials and employees of being corrupt and incompetent also isn’t legally relevant. It’s also incredibly unfair. Why this issue? If they really are corrupt, there would be evidence from other decisions and actions, not just this one.
They are in the positions that endow them with the power and authority to make these decisions. Just because you don’t like the decisions they made doesn’t warrant these nasty accusations.
Irreparable Harm
Opponents of the temple are saying they will experience “irreparable harm” if the temple is built. This is a very high legal standard. One the courts won’t take lightly.
Here’s a legal definition of irreparable harm from the LII:
Irreparable harm is a legal term that refers to harm or injury that cannot be adequately compensated or remedied by any monetary award or damages that may be awarded later. Irreparable harm is a necessary requirement for a court to grant a preliminary injunction or temporary restraining order.Nothing I’ve read about the controversy suggests anything close to “irreparable harm” would occur to anyone.
The movant, or party seeking the injunction, usually has to prove that they will suffer irreparable harm if the injunction is not granted. This is because the purpose of an injunction is to prevent harm before it occurs, and once harm has occurred, it may be too late to adequately compensate the injured party.
It’s easier to make this claim than it is to prove it.
City Officials Working With the Church
Opponents of the temple point to all the interaction city staff had with the Church in preparing the materials and approvals for building the temple. They see something sinister in it.
City officials and staff work with people seeking to develop and build in a community all the time. This is standard. There is no reason to have people go through the process and risk refusal when tips from staff can help those wishing to build comply with all legal requirements.
It’s called efficiency and effectiveness. It’s good sense and it’s good procedure. It’s even called (drumroll) good government.
City Planner Todd Stowell
I feel for the man. He undoubtedly knew that having to decide this issue could be career-ending or even life-ending giving the vitriol he knew would be aimed at him. Others undoubtedly knew this too, including the man who offered him a job if everything went south.
It’s a no-win situation for him. One side or the other was bound to vilify him regardless of what he decided. The only rational and reasonable course of action open to him was to follow the law precisely as it is set up as well as utilize every inch of technical expertise he has.
It’s his only safety. I suspect he knows this and conducted himself accordingly.
Reflections
By carefully reading all of the news coverage I could find on the Cody temple, I was able to identify bits and snatches that got played down in the press: There was no legal reason to deny the building permit and there was no legal reason for the mayor to deny issuing the permit once it was approved.
The judge could easily decide the same. Are opponents ready for these developments?
As I stated before, if the roles were reversed, I suspect that opponents of the temple would be screaming that they have the right to build what they want on their own land with their own money as long as they aren’t violating any laws. Neighbors shouldn’t be allowed to control what they do with what they have and what they own.
Future Events
How is all this going to play out? I think the likely scenario is this:
- The Church will prevail in all the legal challenges.
- The temple will be built.
- The temple will be beautiful, an asset to the neighborhood, will not increase traffic, won’t affect “dark skies”, will protect property values, and won’t cause anybody any problems in the long run.
- The opponents will continue to fight it but will not prevail so they will shift their persecution to individuals and possibly even resort to sabotage and vandalism.
- People will eventually wonder what all the hullabaloo was about because none of the sinister prognostications of the opponents ever develop.
- People will regret all the money they spent fighting it.
I suspect that instead of addressing and considering any of the points I make, people will attack me and my motives. So, I’ll just be clear about my motivations and reveal my conflicts of interest. Here they are.
I don’t like Wyoming. I don’t like the state, the terrain, or the people. I lived in southwest Wyoming in the 1970s for a short time. There might be a handful of people there who remember me or my family. I don’t have any relatives or friends living in Wyoming that I know of, perhaps just a few acquaintances or people I’ve once met. I don’t think I’ve ever been to Cody. I certainly have no wish to go there. I live in the Midwest.
I DO care about the law, fairness, administration, religious freedom, and temples.
I dare anyone to accuse me of bias, collusion, and/or conflict of interest.
#ChurchofJesusChristofLatterdaySaints
#ChurchofJesusChrist
#LDS
#Mormon
#PreserveOurCodyNeighborhoods
#RelocatetheTemple
#CodyWyoming
#LDSTemple
#CodyTemple
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