Posted on 05/04/2004 9:16:22 PM PDT by Utah Girl
A federal judge rejected the American Civil Liberties Union's religious conspiracy claims Monday, ruling that Salt Lake City didn't violate the Constitution by trading away public access on the LDS Church's Main Street Plaza.
The ACLU responded by saying an appeal was likely.
U.S. District Judge Dale A. Kimball's 82-page dismissal of the ACLU's second Main Street Plaza lawsuit rejected point-by-point the group's contention that city leaders kowtowed to The Church of Jesus Christ of Latter-day Saints when they adopted Mayor Rocky Anderson's Unity Center solution to the Main Street Plaza brouhaha last summer.
That solution extinguished the city's public access easement on the plaza — an easement that made the plaza a public forum — in exchange for 2.1 acres of church-owned land in Glendale, where a $5 million community center is to be built.
The suit had argued the community center swap was really a "sham."
But Kimball said the city received ample consideration for the easement, including the community center and the solution to one of the most divisive issues in recent city history.
"The secular purposes . . . are not just 'plausible' — they are obvious and numerous," Kimball ruled. The "sham argument would be more compelling if they claimed that all of the purposes identified by the city were actual shams — that is that the $5 million was not really paid . . . that the Glendale property was not really transferred . . . or that the church did not actually pay half of the city's attorney's fees."
Kimball also dismissed the ACLU's claims that the plaza is a "historic public forum" and subject to free speech. Instead, the plaza is private property distinct from the city's public sidewalks and streets, Kimball said.
ACLU of Utah executive director Dani Eyer said it's likely her group will appeal the ruling to the 10th Circuit Court of Appeals in Denver.
After Monday's ruling, Lee J. Siegel, one of the ACLU's plaintiffs, said Kimball couldn't be fair because he is a member of the LDS Church.
"I don't know anything about the man personally; I just don't expect any Utah federal judge to go against the position of his or her church," Siegel said. "The way this state is run makes those of us who are not LDS feel like we are an oppressed minority."
Siegel said he expects appellate judges in Denver will see things differently.
All but one of Utah's federal judges are LDS Church members. Kimball himself has served in the church as a regional representative, stake president, high councilor and bishop.
Like Siegel, Eyer wasn't surprised they lost in Salt Lake City.
"I can't say we're surprised, but we are disappointed," she said. "We've had experience with this issue at the district court level before."
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 ACLU sued, arguing that the city cannot have public access on the plaza while forbidding certain types of speech or other First Amendment protections.
U.S. District Court Judge Ted Stewart, who is LDS, ruled against the ACLU, but the 10th Circuit Court of Appeals in Denver overturned his ruling in October 2002, leading to Anderson's Unity Center deal two months later.
The mayor, himself a trial attorney and former ACLU of Utah board member, said Monday that Kimball's ruling was "exceptionally thoughtful and well reasoned. . . . I don't think there's any legal merit to this lawsuit. I never did."
Anderson urged the ACLU and its plaintiffs, including Siegel and four religious and political groups, to "conscientiously consider whether there are any good reasons to spend more time, money and energy on this matter."
"We should put closure on it and move forward."
Kimball stressed words from the 10th Circuit's initial plaza ruling several times in his ruling Monday. Then, the appellate court said the city could either keep the easement and allow free speech on the plaza or "relinquish the easement so the parcel becomes entirely private."
The city did just that, Kimball said.
"The property at issue is now entirely private," the ruling states. It is a "church-owned plaza devoid of any government property interests that could possibly create a public forum."
Even Eyer admitted Monday the city had "crossed all its t's and dotted its i's" in crafting the deal, adding, however, the city shouldn't be proud, since she still feels its intention was to silence LDS Church critics on the plaza.
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"The church is gratified that the district court has ruled in its favor," LDS Church attorney Alan Sullivan said in a statement. The church had joined the lawsuit and, along with the city, had asked the court to dismiss the case. "We hope all the controversy can now be put behind us."
Mayor Rocky Anderson, who is a member of the ACLU, said he hopes the organization will back off.
"I'm very pleased and I hope that the people who make these decisions on behalf of the ACLU will take a serious look at this thorough, well-reasoned opinion and put this matter to an end," Anderson said.
Kimball, who rejected every claim made by the ACLU, also spurned the organization's call for a preliminary injunction, which would have lifted the plaza's speech ban. The judge said the ACLU didn't prove it would suffer "irreparable harm" without the injunction, noting that there are public sidewalks near the plaza where people can protest.
He called the debate about whether demonstrations can occur on the plaza "largely academic." But it has been important to the ACLU's national office, which took over the case from the Utah chapter.
Kimball said the public and church would suffer more harm if free speech was again allowed on the plaza. It would undermine the democratic process, voiding a decision by the City Council. And it would ruin the church's plans to make the plaza peaceful. Kimball predicted the plaza would "become a scene of turmoil, and the church will not have control of its property, for which it paid millions of dollars."
The ACLU essentially argued that the land-for-easement deal violated the Constitution in two ways:
* First, that the plaza remained a public sidewalk -- even without the easement -- making the speech limits unconstitutional.
* Second, that the city pandered to and was pressured by the LDS Church to eliminate the easement, disregarding the public's interest.
But Kimball said without the easement the plaza is private property and "beyond the reach of the First Amendment." He compared it to the church's Temple Square, where people are invited to enjoy the grounds, but can be booted for any reason. He noted that the plaza looks different from public sidewalks.
The judge also said that even if city leaders wanted to pacify church leaders, they still gained secular benefits for the city: land and money to build a Glendale community center. Such dual motivations are not unconstitutional, he said.
Billionaire Jon Huntsman, who helped gain those secular benefits by raising money from the church and other donors, was delighted by the ruling.
"This case was wrong from the beginning and never should have been filed," he said. "It's always a privilege to know that justice prevails."
Plazagoers enjoying the sunshine Monday afternoon agreed.
"The ACLU has no right to gripe," said Salt Lake City resident Richard Duncan, who says he walks through the area twice a day to catch a bus.
"It's private property. Let's leave it that way and find some more important things to worry about."
Said a woman visiting the plaza: "I hope this doesn't get [the street preachers] going again."
One of those preachers, Lonnie Pursifull, called the ACLU's loss good news, even though he also wants the plaza to be considered public property.
He pledged to pursue his own legal claims, including allegations the church exerts undue control over city streets beyond the plaza.
"We have a whole other case that's a whole lot better," he said.
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