No Main Street Plaza resolution (Salt Lake City & LDS church)

The Salt Lake City Council has decided to hire another outside attorney, this one to examine Mayor Rocky Anderson's recently released "time, place and manner" restrictions for Main Street Plaza.

The council wants to discover if an independent lawyer thinks the restrictions are too rigid to be constitutional or if the rules could be even more stringent. Following its much-hyped Main Street Plaza "fact-finding" hearing, the council decided to allocate $4,000 to $5,000 to hire local First Amendment attorney Randy Dryer to examine the issue.

"He's a good First Amendment lawyer," Councilman Dale Lambert said. "This isn't a fight with the mayor. We're just trying to find the best advice."

City leaders are trying to determine what restrictions are appropriate for the block of Main Street the city sold three years ago to The Church of Jesus Christ of Latter-day Saints, which turned the property turned into a pedestrian plaza.

New city attorney Ed Rutan, who helped Anderson draft the time, place and manner rules, wasn't offended that the council wanted an outside lawyer. In fact, Rutan encouraged the council because many lawyers have differing interpretations on time, place and manner.

Also Tuesday, Anderson responded to a letter from Presiding Bishop H. David Burton of The Church of Jesus Christ of Latter-day Saints regarding the time, place and manner restrictions, which would limit free speech to a narrow 15-foot easement on the plaza's southern side and establish small protest zones there.

Bishop Burton maintains the church won't be satisfied until the city abandons the easement. He outlined the church's reservations about time, place and manner in a Dec. 6 letter. The rules would be impossible to enforce without a constant police presence and would still allow some protest, he wrote.

That Dec. 6 letter "contained several misrepresentations about the plan," Anderson responded. "I am concerned that this failure to accurately describe the plan will impede public consideration of its merits and mislead the City Council regarding what we have proposed."

Anderson went on to deny, again, Bishop Burton's request that the easement be extinguished.

At the fact-finding hearing Tuesday, it was disclosed that the LDS Church sought to kill — during a closed-door meeting — the Planning Commission's "condition 15." Moreover, after that closed-door powwow with city staffers, the church's present list of plaza restrictions was developed.

It was also disclosed that the city and LDS Church had contemplated — in writing — giving the church the power to destroy the city's public access easement on Main Street Plaza. That written plan, which was later scrapped, stated that in case a court ruled the Main Street sale conditions were unconstitutional, the LDS Church could terminate the city's public access easement by giving 30 days written notice.

It was Bishop Burton who lobbied in an April 5, 1999, meeting with then-City Attorney Roger Cutler and then-Community and Economic Development Director Stuart Reid to kill condition 15.

"That was a deal breaker," Bishop Burton told the Deseret News following the fact-finding hearing.

The condition required that behavioral restrictions on Main Street Plaza be no more restrictive than those that exist in public parks. The exception was that picketing and demonstrating against the LDS Church wouldn't be permitted.

The Planning Commission OK'd condition 15 March 4, 1999, as part of many recommendations the City Council could consider when deciding whether to close a block of Main Street, facilitating the sale of that block to the church for $8.1 million.

Bishop Burton learned of condition 15 only days before April 5, 1999, when he convened what the principals now referred to as the "blowup meeting." During that meeting, Reid and Cutler were informed that if condition 15 remained, the sale of Main Street was a dead deal.

"We made it clear that under no circumstances would we go forward if the church was not protected," Bishop Burton said.

Church leaders wanted further control, and under condition 15 leafletting, street preaching as well as picketing and demonstrating that wasn't focused against the church was still allowed.

Instead of allowing the City Council to decide whether condition 15 would be cut, city staffers secretly cut the condition. Behind closed doors city staffers then OK'd a laundry list of restrictions for the plaza, including bans on loitering, assembling, distributing literature, partying, demonstrating, using tobacco products, sunbathing and begging. The church also retained the exclusive rights to literature distribution and other speech. The new restrictions were developed in four days between April 5 and 9 when a copy of the final deal was forwarded to the City Council for consideration at its April 13, 1999, meeting.

At the fact-finding hearing, former Mayor Deedee Corradini testified that she knew little about the deal's specifics and let Cutler work out most of the legal details.

It was the way condition 15 was axed and the other restrictions crafted — behind closed doors — that has led many to criticize the public process.

"The removal of condition 15 is one reason why we are here tonight," former Planning Commission chairman Max Smith told the council Tuesday.

Former Councilwoman Deeda Seed said city and church staffers misled the council members about the plaza's accessibility.

"It was pitched to all of us that access would be similar to access you have in a public park," she said.

However, when the City Council voted to close Main Street, the council knew about all of the restrictions and the elimination of condition 15. The vote split down religious lines, with the five LDS Church members voting for the sale and the two non-LDS members voting against it.

Former City Council chairman Roger Thompson said he, for one, was glad condition 15 wasn't part of the deal.

Beyond condition 15, Tuesday's hearing uncovered an early draft of the sale contract that gave the church the ability to "terminate the easements for pedestrian access and passage . . . upon 30 days written notice" if a court ruled the sale was unconstitutional. The early draft was developed by church attorneys after the March 4 Planning Commission meeting but prior to the April 5 "blowup" meeting.

While that draft was scrapped, Anderson noted after the meetings that its existence holds significance for one of his chief arguments.

Anderson insists the early draft proves the city and church contemplated the current situation — that the city's desire for a public access easement is constitutionally incompatible with the church's desire to restrict free speech on the plaza. The contemplation is evidenced by the clause, which shows the church wanted to have authority to kill the city's easement in case a court ruled against the sale.

City attorneys wouldn't go for the clause and instead worked the "severability clause" into the deal. The severability clause states that if a court invalidated any part of the agreement, the rest of the deal "shall remain binding and enforceable."

While it was beneficial to undercover some of the missed historical facts, it's unclear if the hearing had any effect on what the current City Council will do.

The council has several decisions to make. First, it will consider whether to ratify Anderson's proposed time, place and manner restrictions. If it doesn't ratify those restrictions, the council can decide whether it will opt to relinquish the city's easement across Main Street Plaza.

American Civil Liberties Union advising attorney Stephen Clark said the council had only two options that would likely not bring a legal challenge. The city could either adopt the mayor's time, place and manner restrictions or it could give up the city's easement and not maintain any other guarantees of public access on the plaza, in essence making the plaza — like the LDS Church's Temple Square — private. The Main Street Plaza dispute has divided Utah and Salt Lake City along religious lines, with a majority of LDS members supporting the church and a majority of members of other faiths and those without religious affiliation supporting Anderson, according to the recent Deseret News poll.

When the city sold the block of Main Street to the church in 1999 it retained a public-access easement across the 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 because it paid $8.1 million for the land and the ability to control what happens there, including restricting protests, demonstrations, leafletting 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. Anderson said that since the city bargained for the public-access easement, he won't give away that public right.

Yup, pretty much the story. And it kills me when Rocky Anderson says that the LDS church will have 90% of the control over the Plaza. This is private property, and letting anyone pass out leaflets on the whole Plaza, well, that pretty negates any control the LDS church has over the Plaza. I keep wanting to write to Rocky Anderson and ask him what part of the First Amendment he does not understand about the fact that "government make no law respecting an establishment of religion." Salt Lake City is determing what the LDS church can do with its property. There is also the issue of property rights too.

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