Church, Salt Lake file motions on plaza
By Brady Snyder
Deseret Morning News
The Church of Jesus Christ of Latter-day Saints wants in on the
second Main Street Plaza lawsuit, and Salt Lake City wants the suit
tossed out.
Wednesday � a day after voters approved Mayor Rocky Anderson for
four more years � the church and the city both filed legal motions in
the 3-month-old Main Street Plaza case.
More legal activity was expected today or Friday as the American
Civil Liberties Union promised to respond to the latest filings.
Like it did in the initial Main Street Plaza suit, the Corporation
of the Presiding Bishop of the LDS Church filed a "motion to intervene"
in the ACLU's second federal lawsuit challenging the city's Main Street
Plaza deal signed with LDS Church leaders in July.
The deal, authored by Anderson, traded the city's public access
easement across the plaza for two acres of land in Glendale where a
privately funded community center will be built.
The deal came about after the U.S. 10th Circuit Court of Appeals
ruled in favor of the ACLU that the easement created a public forum on
Main Street Plaza. The church didn't like that ruling, saying it gave
protesters and preachers a bully pulpit just feet from its downtown
temple.
After a months of heated public debate, Anderson fashioned a deal
to swap the easement for the community center and give the LDS Church
the right to control speech on the plaza.
The ACLU sued again, saying the plaza remained an historical
public place, that Anderson's trade overly favored the LDS Church and
violated the establishment clause of the U.S. Constitution.
The church's motion Wednesday asks federal judge Dale Kimball to
allow the church to become a co-defendant along with Salt Lake City in
the ACLU's second suit.
"The church has a clear interest in the subject matter of this
action," states the motion, which was written by church attorney Alan
Sullivan. "Plaintiffs' acknowledged aim in this lawsuit is to transform
the church's property into a public arena in which plaintiffs and others
can demonstrate, picket and distribute literature. Plaintiffs'
effort raise obvious questions about the church's rights in property for
which it has paid."
ACLU attorneys said Wednesday they won't oppose the church joining
the suit.
"Frankly their participation is welcome and is required for the
full disposition of this case," ACLU attorney Mark Lopez said.
Anderson similarly welcomed the church to the lawsuit, noting it
"should be a party to the lawsuit to protect their own interests. We are
certainly with them."
Later Wednesday, the city filed a motion to dismiss the ACLU's
case entirely. Chief Deputy Attorney Steven Allred gave a litany of
reasons why. Primarily, Allred wrote, the easement, not the plaza, was a
public forum. Because the easement no longer exists, and the plaza is
owned by a private entity, it cannot continue to be subject to free
speech. Moreover, Allred stated, the city had many secular reasons to
trade the easement to the LDS Church, not the least of which was gaining
the $5 million community center.
Moreover, throughout the entire Main Street Plaza transaction
going back to 1999, the LDS Church has greatly overpaid for the plaza
land and therefore, the city's actions have seemingly been detrimental
to the church rather than favoring it, Allred suggested.
"In fact, rather than favoring religion or a particular church,
these considerations demonstrate the extent to which the city and its
constituents, not religion or its adherents, were benefited by the
settlement and relinquishment of the easement," Allred wrote.
Lopez said he will file, either today or Friday, a motion for a
"preliminary injunction" in the case. That injunction will seek to
return Main Street Plaza to a public forum, similar to what existed late
last year and early this year following the 10th Circuit's ruling.
The injunction, if granted, would stay in place until the second
plaza suit was decided in court and would make way for street preachers
and anyone else to exercise free speech rights on the plaza.
The initial Main Street Plaza suit came after the city sold a
block of Main Street to The Church of Jesus Christ of Latter-day Saints
in 1999 for $8.1 million. In that sale, the city reserved a
public-access easement across the plaza but gave the church the
authority to prohibit on the plaza protests and proselytizing, certain
dress and other things the LDS Church finds offensive.
With the First Unitarian Church of Salt Lake City, among others,
as a client, the ACLU of Utah sued Salt Lake City over the restrictions,
and in October the 10th U.S. Circuit Court of Appeals in Denver sided
with the ACLU. The court said the city cannot have public access on the
plaza while forbidding certain types of speech there.
The LDS Church, which voluntarily joined the suit, appealed to the
U.S. Supreme Court, which declined to hear the case.
After the 10th Circuit's ruling, Anderson proposed "time, place
and manner" restrictions on the plaza easement, a plan rejected by the
church. Later Anderson and others developed a plan in which the easement
rights would be traded for two acres of church-owned land in the city's
Glendale area. The deal made the plaza entirely private and the city
relinquished public guarantees of free expression and pedestrian passage
on it.
The ACLU, with a half-dozen plaintiffs, filed a second suit
challenging the community center deal on the basis that it takes away
constitutional guarantees of free expression and was too favorable a
deal for the LDS Church.
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