The American Civil Liberties Union of Utah is trying a new tack in its legal challenge to the LDS Church's Main Street plaza.
Thursday the ACLU filed a second lawsuit in 3rd District Court against Salt Lake City and The Church of Jesus Christ of Latter-day Saints, alleging they have not complied with the "plain language" of the ordinance authorizing the closure and sale of Main Street between North Temple and South Temple to the church."I think we've found a threshold issue," said ACLU legal director Stephen Clark.
The first suit brought by the ACLU, now pending in federal court, is a broader one, alleging that conditions on the sale violate the Constitution. This one is more cut-and-dried.
The ordinance authorizing the closure and sale, passed by the City Council April 13,1999 (a year ago Thursday), states that it is "conditioned upon compliance with all of the conditions identified by the Salt Lake City Planning Commission." There were 15 such conditions, the last one of which stated that the plaza would be no more restrictive than a public park.
However, the final ordinance and deed of sale made it clear that the plaza would in fact be more restrictive than a public park -- for example, by prohibiting protests, picketing, erecting signs and the like. Other prohibitions include sunbathing, vulgar speech, dress or conduct and consuming alcohol or tobacco.
The ACLU contends that since the final transaction did not comply with the Planning Commission's 15th condition it is illegal and the closure and sale should be reversed.
Complicating the issue is the fact that the ordinance, after referring to the Planning Commission's conditions, refers to an attached "modified summary" of those conditions, which omits the 15th.
"I don't know whether that was from deceit or carelessness, but it doesn't matter," Clark said. "The plain language of the ordinance should control."
City Attorney Roger Cutler said the omission of the 15th condition was due neither to deceit nor carelessness. It was "absolutely intentional," he said, and all City Council members were aware of the omission before the final vote was taken.
In fact, planning commissioner Craig Mariger spoke at the meeting, protesting the restrictions going beyond those of a public park. Councilman Tom Rogan also noted, negatively, that the conditions were different.
"The record is clear," Cutler said. "The issue was discussed. There's no question what the intent was."
Councilman Keith Christensen, the council chairman at the time the meeting took place, agreed. "I'm very comfortable with both the process and the procedures we followed," he said. "The council knew exactly what it was doing."
Cutler declined to say whether, in hindsight, his office should have drafted the ordinance differently to refer specifically to the attached summary of conditions instead of those outlined by the Planning Commission. He allowed the possibility of re-enacting the ordinance with that change, if necessary, but right now plans to defend the ordinance as it stands.
Clark conceded that, unlike the federal court suit, this second suit is over a specific issue that is relatively easy to remedy should the city lose. However, "part of the problem here is this very critical issue of whether this plaza is an annexation of Temple Square or a public park," he said. "This was never fully debated."
LDS Church attorney Von Keetch said the new state court lawsuit is "nothing more than desperate tactics by the plaintiffs."
"This lawsuit, in its various forms, has been meritless from the beginning," he said. "The meetings of the Planning Commission and the City Council were open and public, and everyone understood the conditions that were attached to this sale."
Deseret News staff writer Hans Camporreales contributed to this story.