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Ruling expected Monday in plaza case

Judge’s decision could go several ways

SHARE Ruling expected Monday in plaza case

Monday afternoon it will be U.S. District Judge Dale Kimball's turn to decide whether the American Civil Liberties Union's second Main Street Plaza case has legal merit.

Already, billionaire Jon M. Huntsman Sr., attorneys for The Church of Jesus Christ of Latter-day Saints and Salt Lake City Mayor Rocky Anderson have said the case carries no weight.

Two weeks ago Huntsman said he believes the case "has absolutely no teeth" and "is a total waste of everybody's time." Anderson has said some of the lawsuit's claims are "absolute nonsense."

But ultimately Kimball will decide.

And Kimball's judgment will give someone — either the ACLU or the church and city — an early victory in the case, which seems destined to be appealed to the 10th Circuit Court in Denver.

Previously, in the initial case — born from Salt Lake City's 1999 decision to sell a portion of Main Street to the LDS Church — a federal judge in Salt Lake City, Ted Stewart, saw his Main Street Plaza ruling overturned in Denver.

Monday's hearing will include arguments from three skilled attorneys representing the ACLU, the LDS Church and Salt Lake City — ACLU national attorney Mark Lopez; church attorney Allan Sullivan; and Steven Allred, a longtime attorney with the city.

Kimball already has a firm grasp of the suit's arguments pro and con, since he has been able to pore over the case's written arguments for the past six months.

Possible decisions

According to the attorneys, the matrix of decisions Kimball could make is complex.

"It could go several different ways," church attorney Sullivan said.

First, the judge could side — on a temporary basis — with the ACLU and return free speech, expression and unfettered public access to the Main Street Plaza.

That decision, however, would not secure a permanent ACLU victory. Even with speech and expression temporarily restored, there would still be a trial before Kimball to decide the case. If Kimball then ruled against the ACLU at trial, the LDS Church would again have the power to restrict speech and expression on the plaza and be able to ban certain people from walking across it.

Of course, Kimball could side against the ACLU Monday and grant city and church motions to dismiss the suit, thus ending the case before trial.

Kimball could also dismiss the case without prejudice, meaning the ACLU could amend and then refile the case in district court. Or Kimball could dismiss the case with prejudice — a dismissal that would end the case at the district court level and force the ACLU to appeal the case to the 10th Circuit if the civil liberties group wanted the case to continue.

Constitutional issues

But there are more nuances.

The ACLU's second plaza suit makes two constitutional claims.

First, the ACLU contends the Main Street Plaza is a "historical" public forum; therefore, even if it is not public property, its traditional forum status remains.

There is some case law to support such a claim.

The bellwether case concerns a group of animal rights activists who sued the owner of Boston's Faneuil Hall Marketplace for the right to protest.

In that case, the 7th U.S. Circuit Court of Appeals held that even though Faneuil Hall was owned and leased by a private organization, it remained a public forum because the marketplace — dating back to colonial times — "was an area traditionally used for public assembly, was dedicated to public use and was indistinguishable from the surrounding public streets and sidewalks."

The ACLU's second claim in the second Main Street Plaza suit is that Salt Lake City violated the establishment clause of the U.S. Constitution when it passed Mayor Rocky Anderson's unity center compromise to the plaza fray.

The unity center deal traded the city's easement across the plaza for church-owned land in the city's Glendale area and cash. Some of that cash will be used to build a community center on the Glendale property. In exchange for the land and promised community center, the deal gave the church what it wanted — control of the plaza.

The ACLU claims the deal was an effort to appease the LDS Church and therefore violated the constitution, which states the government shall not "establish" any religion.

The suit claims Anderson reversed his initial stand against giving up the city's easement only after the LDS Church brought substantial political pressure to bear.

"After months of trying to battle the LDS Church, its massive public relations operation and the City Council members who from the beginning set about to do the church's rather than the public's bidding, the mayor did a sudden about-face and capitulated to the church's demands that the city surrender the right of way through the property," the suit contends.

Because there are two claims in the suit, Kimball could toss out one of the claims while keeping the other alive for trial. Such a scenario would again set up a trial later on in Kimball's court.

Earlier suit

The initial Main Street Plaza suit came after the city sold a block of Main Street to the LDS Church 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-plaza protests and proselytizing, certain dress and other behavior the LDS Church finds offensive. The plaza is adjacent to the church's headquarters, the Salt Lake LDS Temple and the Conference Center.

Representing the First Unitarian Church of Salt Lake City, among others, the ACLU of Utah sued Salt Lake City over the restrictions, and in 2002 the 10th 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 or other First Amendment protections.

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 developed a plan in which the easement rights would be traded for 2 acres of church-owned land in the city's Glendale area, where a privately funded community center would be built. The deal made the plaza entirely private, with the city relinquishing public guarantees of free expression and pedestrian passage.

The ACLU of Utah, with a half-dozen plaintiffs including the Unitarian Church, then filed 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.

U.S. District Court Judge Dale Kimball has scheduled a Jan. 26 hearing to decide whether he will dismiss the second suit or grant the ACLU's request to return free-speech rights to the plaza.

E-mail: bsnyder@desnews.com