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James Wooldridge, Deseret News
A section of land looking southeast at 7200 West and I-80 that is part of the proposed Utah Inland Port in Salt Lake City on Monday, July 16, 2018. Gov. Gary Herbert joined legislative and local elected leaders to discuss consensus recommendations for the Utah Inland Port during press conference at the Capitol in Salt Lake City on Monday, July 16, 2018.

SALT LAKE CITY — The Utah Inland Port Authority is open for business, after a false start and some rejiggering in a special session of the Legislature. In their meeting Monday, board members were sworn in and set about the routine actions of scheduling and staffing.

But there was no mention of a threat that some believe might still undo the new board: the ripper.

That is, the so-called “ripper clause,” a rarely invoked and somewhat vague section of the state’s constitution, written to keep the state out of city affairs.

Nobody has publicly threatened to sue, but Salt Lake City Mayor Jackie Biskupski told the Deseret News last week that the city and nongovernmental groups are vetting the constitutionality of a state law that gave appointed board members final say over land use and tax increment on 25 square miles in northwest Salt Lake City.

The constitution's ripper clause, aka Article VI, Section 28, says the Legislature “shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property or effects, whether held in trust or otherwise, to levy taxes, to select a capitol site, or to perform any municipal functions.”

Legal experts contacted by the Deseret News were reluctant to talk about the constitutionality of the port authority, specifically, without having had the chance to do their homework. Those who did talk about it were measured. “My takeaway is it’s not an open-and-shut case either way,” said former U.S. District Court Judge Paul Cassell, a law professor at the University of Utah.

The City Council said in a statement last week that suing the state would be “risky, time-consuming and expensive” and included language in its recent budget to prevent Biskupski from suing the state without council consent. (Biskupski says she can still sue if she wants.)

Sen. Jerry Stevenson, R-Layton, authored the bill that set up the port authority and was floor sponsor for the recent special session compromise that reduced its boundaries, narrowed its role in land use decisions and set aside one-tenth of its tax gains for affordable housing. He believes a lengthy court battle could cost Utah a unique opportunity.

But Biskupski, who sat out recent compromise negotiations, said she’s not ready to abandon control of land use amid fears of “a dirty, polluting port” or to lose out on $1.4 billion in estimated tax gains over 25 years.

“The state, essentially, is giving municipal authority to an unelected board, allowing for them to make decisions around tax dollars, and they have some bonding capability,” she said. “Those are all municipal functions.”

No clear meaning

The clause, called ripper for no apparent reason, was itself an import, coming to Utah and seven other states from Pennsylvania.

The Keystone State enacted similar language in 1872, after its Legislature had given nearly unlimited taxing authority to an appointed group to construct Philadelphia’s City Hall (the world’s tallest habitable building until 1908).

But the intervening 136 years haven’t done much to clarify what’s meant by that language and when it applies.

For the ripper clause to apply to the inland port board, it first would have to be considered a “special commission.” Paul Edwards, deputy chief of staff to Gov. Gary Herbert, said the inland port authority isn’t a “special commission” because the bill says it’s organized as a political subdivision of the state.

“We don’t see it as any kind of concern,” Edwards said of the ripper clause.

Steve Griffin, Deseret News
Gov. Gary R. Herbert is joined by legislative and local elected leaders as he discusses consensus recommendations for the Utah Inland Port from the Gold Room at the Capitol in Salt Lake City on Monday, July 16, 2018.

Former Utah Supreme Court Chief Justice Michael Zimmerman wrote in a 1988 decision — in which he laid out a ripper clause interpretation that has given guidance to judges outside Utah — that past cases don’t give the words “special commission” “any clear meaning.”

And then there’s “municipal.” That, too, lacks “any empirical meaning,” Zimmerman said, “even after a century of interpretation.”

Zimmerman’s ruling ultimately swatted aside West Jordan’s argument that the ripper clause meant it could not be forced to participate in the state’s retirement system, using what he called a “balancing approach” to determining whether a function is “municipal.”

He weighed three factors: to what degree the state or the city can do it better, to what degree it affects people outside city limits and to what degree it costs city voters their elected voice.

Cassell said a legal database search turned up only two dozen cases in state history that have cited the ripper clause, and judges tend to defer somewhat to the Legislature. But nobody has applied Zimmerman’s rubric to a clear analog of the inland port authority.

“The cases that have been brought about the ripper clause are very fact-specific, and, as a result, there’s not a definitive red line of what violates the constitution and what doesn’t,” said Cameron Diehl, executive director of the Utah League of Cities and Towns.

Jeffrey D. Allred, Deseret News
Senator Jim Dabakis and House Speaker Greg Hughes speak at the State Capitol in Salt Lake City on Tuesday, June 5, 2018 during a press conference about SB 234, Utah Inland Port Authority.

The nonpartisan league published a letter earlier this month supporting Stevenson’s compromise but cautioning that it still may violate the ripper clause. Diehl said the league has told legislators that it doesn’t want to see this type of intrusion replicated in years to come.

Legislators also recently created an “authority” over development at the site of the Draper prison, ahead of the prison’s move to Salt Lake City. But the prison is on state-owned land, and the authority doesn’t seize any tax differential or land use powers.

Privately owned land? That’s usually city business. But Stevenson said he didn’t hear any mention of the ripper clause from legislative attorneys drafting his inland port bill.

Biskupski said she has yet to hear what the state wants that “the city won’t deliver,” given that it passed a master plan for the area in August 2016 and has recently recruited the likes of Amazon and UPS to the area, where a foreign trade zone might someday allow importers to bypass customs at busier seaports and take advantage of an international airport, rail lines and two interstate highways.

" I really believe Salt Lake was making a lot of changes. … Were they taking place fast enough for me? Probably not quite. "
Sen. Jerry Stevenson, R-Layton

“It seemed like things were going well,” she said. “But I think, at the end of the day, there was never any intention to allow the city to maintain its authority.”

Stevenson said he wanted to “make sure that (the city) can’t slow-dance you.”

“I really believe Salt Lake was making a lot of changes. … Were they taking place fast enough for me? Probably not quite.”

To sue or not to sue?

Biskupski said the city may not have standing to sue until the board begins to perform “municipal” functions. In the meantime, city attorneys are doing a “deep dive” into the bill’s merits.

Talk of the ripper spread with a recent letter to The Salt Lake Tribune from Ted Wilson (Salt Lake City’s mayor from 1976 to 1985), faulting the City Council for negotiating against the wishes of the mayor when the inland port authority may be unconstitutional.

Deeda Seed, a former Salt Lake City councilwoman who is now with the Center for Biological Diversity — one of nearly a dozen partner agencies in the Community Coalition for Inland Port Reform — said her organization and others are also evaluating their legal options.

And Rocky Anderson, Salt Lake City’s firebrand mayor from 2000 to 2008 and an attorney, said the city should sue to reverse a “horrible and irrevocable deal that’s going to harm the city and, I think, harm the entire state.”

But members of the City Council, after celebrating concessions from the governor and state Republican leadership, have expressed a dimmer view of litigation.

James Wooldridge, Deseret News
A section of land looking north east at 7200 west and I-80 that is part of the proposed Utah Inland Port in Salt Lake City on Monday, July 16, 2018. Gov. Gary R. Herbert was joined by legislative and local elected leaders to discuss consensus recommendations for the Utah Inland Port during press conference at the Capitol in Salt Lake City on Monday, July 16, 2018.

In a Frequently Asked Questions section on the council’s website, it asks, “How can the State remove key funding and decision-making authority from the City to another body?”

Answer: “In Utah, cities are not independent of the State, and are by law, a ‘creature of the State.’ Because of this structure, State may govern what the City holds jurisdiction over. When the city laws and state laws differ, the State statute prevails.”

Councilman James Rogers represents much of the affected land and is one of the city’s two representatives on the 11-member board. He said that even if the city chooses to sue, council members did no harm to the city’s position by participating in the bargaining process.

Biskupski said she doesn't know if the council's actions damaged the city's standing, "but that is something that will be part of an analysis."

Council Chairwoman Erin Mendenhall agreed with Rogers, adding that if the city ever won a lawsuit, the Legislature would then make the port authority “just legal enough to satisfy the courts.

“The City Council did not give anything away,” she said. “The Legislature took significant authority from us back in March, and they were clearly willing to continue with what was on the books.”

Steve Griffin, Deseret News
Salt Lake City Council Chair Erin Mendenhall is joined by Gov. Gary R. Herbert and other legislative and local elected leaders as she talks about consensus recommendations for the Utah Inland Port from the Gold Room at the Capitol in Salt Lake City on Monday, July 16, 2018.

A lawsuit, added Councilman Charlie Luke, might also cause the Republican-led Legislature to retaliate against Utah’s liberal capital city and imperil its watershed or take control of its airport.

Luke, a registered lobbyist, said that after Anderson joined the Sierra Club in opposing the Legacy Highway from Davis to Salt Lake County — winning concessions that included truck and billboard bans and a reduced speed limit — city residents were stuck with a school equalization bill that still makes them pay more than their share toward education.

“The reality is the Legislature has the authority to do what they will with the city, and when we threaten lawsuits, when we jump into that and we start rattling our sabers, we have far more to lose than we have to gain,” Luke said.

Anderson said he’s never heard that the school equalization bill was payback for his opposition to Legacy Highway, and he, Biskupski and Wilson agree the city shouldn’t act out of fear.

“They all went up there with their tails between their legs and essentially were shaking hands and slapping backs with people who basically just screwed our city,” Anderson said of the council.

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The council’s budget provision requires its consent for any lawsuit that “addresses constitutional or policy issues that affect both branches of city government, filed against another governmental or quasi-governmental entity, and the council finds that could potentially have long-lasting budgetary or reputational consequences for the city.”

Biskupski said she didn’t object at the time because the council’s provision was “not realistic.” The decision is hers to make, she said, as the city’s executive.

Stevenson said that, for his part, he hopes they can improve the inland port authority through upcoming legislative sessions and avoid losing “a lot of what we could have done with it.”