The American Civil Liberties Union of Utah's lawsuit challenging public-access restrictions to a Main Street plaza raises a number of complex questions.
The sale to The Church of Jesus Christ of Latter-day Saints of a Main Street block, now being converted to a pedestrian plaza, was conditioned on public-access restrictions including prohibitions of drinking, smoking, demonstrations, lewd conduct and the like.If those restrictions are ruled illegal, the church could conceivably reverse the sale, giving the property back to the city and demanding a refund of the $8.2 million sale price.
Last summer Salt Lake City Attorney Roger Cutler said in that situation the city would give up all public access. Mayor-elect Rocky Anderson said he would not condone that, however, and Cutler has agreed to abide by the new policy.
A "severability clause" contained in the special warranty deed outlining the conditions of sale states that if any of the terms of the agreement are "unconstitutional or otherwise unenforceable," the rest of the agreement remains valid.
On its face, that means the church is bound by the sale and can't reverse it even if the public-access restrictions are removed. That would put it in the interesting situation of not being able to control who enters or what events occur on the plaza, its own land, including demonstrations against the church itself.
Cutler said that wouldn't necessarily be the case but acknowledged the possibility. An ACLU victory "would raise all sorts of problems," he said.
Given all that, there's a curious omission in the lawsuit: The Church of Jesus Christ of Latter-day Saints.
The ACLU, representing three plaintiffs, named the city and Mayor Deedee Corradini as defendants in the complaint -- but not the LDS Church.
"I don't think it can go forward without them," Cutler said. He added that the city might ask the U.S. District Court, where the complaint was filed, to dismiss the suit if the church is not included.
The lawsuit is the first assigned to Ted Stewart, the newest federal judge in Utah.
Another option is for the church to petition to intervene in the suit, saying its interests can't be adequately represented without being involved. Cutler certainly thinks that's the case.
"We're going to defend it, but the restrictions on the (public-access) easement are primarily the church's concern," he said. "Our primary focus will be to protect public access to the land, not the restrictions. . . . I would be shocked if they didn't (intervene), but they don't like litigation."
"We are not a party to the suit and have no current plans to intervene," said LDS Church spokesman Dale Bills. "We will, of course, closely follow developments as they unfold."
Bills said the church is confident Stewart will rule its way.
ACLU legal director Stephen Clark explained that the suit concerns the restrictions approved by the city, not the sale of the property to the church. The complaint says restrictions on public access to the plaza violate the free speech, establishment of religion and equal protection clauses of the U.S. Constitution -- civil government matters.
"Main Street has been and remains, notwithstanding the sale, a traditional public forum because it previously was public and continues to serve as a thoroughfare open to the general public," the complaint states.
Shortly after being elected, Anderson told the Deseret News he would prefer to sit down with all parties and work out a win-win scenario regarding the Main Street plaza, rather than undertake a battle in which one side wins big and the other loses big. Whether he's successful in doing that remains to be seen.