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Plaza appeal goes to top court

LDS Church wants a 'public forum' injunction reversed

The fate of the Main Street Plaza is in the hands of the U.S. Supreme Court — for now.

As expected, The Church of Jesus Christ of Latter-day Saints filed a petition to the U.S. Supreme Court on Wednesday, pleading with the higher court to review the recent decision made by the 10th U.S. Circuit Court of Appeals.

If the Supreme Court agrees to review the case, always considered a long shot, the LDS Church is hoping it will overturn U.S. District Judge Ted Stewart's January ruling that sided with the American Civil Liberties Union of Utah. His permanent injunction ruled that the plaza is a "public forum" and that the church's restrictions on dress and conduct in the city-owned easement violate the First Amendment. That ruling was ordered by the 10th Circuit, which overturned an earlier Stewart ruling siding with the church.

LDS leaders and lawyers wouldn't comment on the petition Wednesday, but the church detailed in the 30-page document why it believes Stewart's second ruling was incorrect.

"The church believes that the transaction between the city and the church was fully consistent with the First Amendment under established Supreme Court precedent," the statement read.

The ACLU was expecting the church to file the petition, but Dani Eyer, Utah's executive director, believes it will be turned away. Of the thousands of petitions filed each year only 100 (about 2 percent) are usually accepted.

"It's not a surprise that they decided to do that," Eyer said Wednesday. "We still don't think the Supreme Court will grant (the request). But we'll be watching."

The church's petition presents the U.S. Supreme Court with three specific questions for review.

Whether the 10th Circuit's decision conflicted with New York's 2nd Circuit ruling that property that had public access didn't necessarily constitute a public forum, depending on location, characteristics and use of surrounding private property.

That the 10th Circuit's ruling was contrary to a Nevada Supreme Court decision that a Las Vegas casino could control disruptive protests and other expressive conduct even though a limited easement allowed public passage.

That the analysis by U.S. Supreme Court Justice Anthony Kennedy deemed that a government can validly "close a public forum by selling the property, changing its physical character or changing its principal use."

The church also believes it is now "in the curious position of having to seek a permit from the city to engage in free speech activities on its own property." It argues that, in effect, the church now owns a religiously oriented First Amendment forum, considering the easement runs through private property with religious symbols, that it deems is a "constitutional contradiction" that "creates an excessive and perpetual entanglement between the city and the church."

The release also reaffirmed that the church is hopeful Mayor Rocky Anderson's land-swap plan will be approved by the City Council and put into place. Anderson's proposal offers an exchange of the city's easement in return for two acres on the city's west side that would be developed as part of a Glendale community center.

The LDS Church's statement called the plan "a workable solution, and the church remains hopeful that the City Council will adopt that proposal."

If the proposal is passed by the council in the next couple of months, the justices could rule the church's petition moot. It's possible the church could withdraw its appeal if that happens.

The ACLU has 30 days to file an opposition to the petition. If that occurs, the church would then get 10 days to reply with a follow-up brief. Then, after being considered by the justices, a decision could be made, likely in June, whether the Supreme Court would grant the petition or deny it. If granted, oral argument would take place later this year. A decision would be anticipated in July 2004, or perhaps earlier.

City attorney Ed Rutan said he will file a response to the Supreme Court, showing the city's support for the church's petition. The city is not a party to the lawsuit.

"This does not mean we are pulling back in any way the (land-swap) proposal," he said. "We're still going ahead with that. It's certainly not moot at this point. We're hoping it is approved."

Anderson's proposed compromise calls for the 2-acre parcel owned by the LDS Church to be given to the city in exchange for the city's easement. The land on Salt Lake's west side would be developed by the Alliance for Unity, which will raise $5 million for a building where the University of Utah and Intermountain Health Care will offer free legal, business and medical advice as well as educational opportunities for children and adults.

When the city sold a block of Main Street to the church in 1999, it retained a public-access easement across the proposed plaza. In response to a lawsuit brought by the ACLU, the 10th Circuit Court of Appeals recently ruled that the easement creates a free-speech forum, similar to what exists on public sidewalks.

The church didn't like that decision, representatives have said, because it paid $8.1 million for the land and the ability to control what happens there, including restricting protests, demonstrations, leaflet distribution and some dress and speech.

The court suggested that the city either give its easement to the church — dissolving the right to public access and free speech — or craft time, place and manner restrictions for the plaza.