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.

Corradini Defends Plaza

Stephen Clark, left, and Dani Eyer, representing the ACLU, address the City Council during Tuesday's special meeting. Clark again threatened a lawsuit if the council decides to give up the easement. (Leah Hogsten/The Salt Lake Tribune)

THE SALT LAKE TRIBUNE

When concerns about free speech on a proposed Main Street Plaza first erupted in 1999, then-Mayor Deedee Corradini was conspicuously absent from many of the debates. But on Tuesday, she was front and center, attempting to clarify Salt Lake City's goals in selling the property to the LDS Church.

It was supposed to be like the neighboring church administration block, she said, open to public access but controlled by The Church of Jesus Christ of Latter-day Saints. She said it was a means to enhance the state's No. 1 tourist attraction, Temple Square.

However, Corradini acknowledged that the extent of the church-sought restrictions on speech and behavior may not have been generally known among the public.

"The intention always was to have a quiet, beautiful, peaceful, reflective place in the middle of our city that the public would always have access to. Those of us working on this issue were clear. We tried to clarify that, but as I said, different people hear different things."

Tuesday night was Corradini's chance to defend the $8.1 million sale that landed the city in court and fractured the community along religious lines. She -- along with former City Council members, an LDS general authority and plaintiffs in a lawsuit -- was invited to the City-County Building to give her thoughts about the arrangement as the current City Council decides how it wants to resolve the impasse. The hearing lasted almost four hours.

Under questioning by Mayor Rocky Anderson, Corradini did little to clarify the critical issue of whether it was her and the city's intent to retain the public easement in the event that the restrictions were deemed unconstitutional, as they were in October by the 10th U.S. Circuit Court of Appeals. On that point, she deferred to former City Attorney Roger Cutler, who did not attend the meeting but may be at next Tuesday's public hearing.

The former mayor said she did not know why the specific placement of the easement wasn't defined in the contract, whether the city looked at ways other than an easement to guarantee access or whether she intended the severability clause to mean what Anderson believes: that if the restrictions were deemed unconstitutional, the easement remains with the city.

"None of us dreamed we'd ever get to that point," she said.

But the American Civil Liberties Union disagreed. Advising attorney Stephen Clark pointed to a draft document that would have allowed the church to extinguish the easement if the restrictions on behavior and speech were thrown out. The final document, signed by the city and church, says instead that the easement remains with the city. The draft document was undated, but Clark says it was passed between city and church officials before the City Council approved the deal in April 1999.

"This absolutely proves this was an issue everyone was carefully looking at," said Anderson, who was to be escorted by police after the hearing. The draft document was news to him.

LDS Presiding Bishop H. David Burton, who also spoke at the hearing, said afterward: "I'm really not familiar with that," but agreed that had it been adopted, it would have saved the city from its current fracas.

Burton agreed the easement was part of the deal nearly from the beginning. But he said the restrictions on behavior -- against picketing, demonstrating and other "offensive" speech -- were "paramount," too.

He referred to a "blow-up" meeting he held with other church officials and city representatives after the Planning Commission voted in March that the plaza be treated like a public park. "We said under no condition would we go forward with the purchase if the church was not protected from the abusive kinds of demonstrations we have experienced in the last 45 days on the plaza."

After that meeting, the city dropped that condition.

On Tuesday night, Burton suggested the church might offer to buy or exchange land for the easement.

He also defended how the church represented the plaza to the public, repeating Corradini's sentiments that "the intent of the parties" was for the church to control the plaza.

But former Councilwoman Deeda Seed disagreed, saying the public process was flawed from the moment Corradini announced the proposal in December 1998 with LDS President Gordon B. Hinckley.

"Bishop Burton went into heavy lobbying mode. He's a very good salesperson, and he tried to convince me of the beauty of the plaza. Representations were made to me on many occasions and to the community that this space would be open like a public park."

Seed said, "The public didn't know the undertone of this deal until it was voted on and done."

The ACLU backed Seed. Clark said he never raised any questions about restrictions on behavior on the plaza because he didn't know there would be any until the night the council approved the deal in April. "From the initial announcement, the plaza was consistently described as a park."

Clark again threatened a lawsuit if the council decides to give up the easement and urged it to pass Anderson's time, place and manner regulations that limit the easement to the plaza's east side and protests to areas at each end. Accepting Anderson's proposal was difficult, said the Rev. Tom Goldsmith of the First Unitarian Church and a plaintiff in the lawsuit.

When he first read it, he thought, "Oh, this is just too lopsided. I don't like it. [Then] I realized it's got to be a generosity of spirit. Compromise is the only way to get on with the healing, with the business of the city."

Dani Eyer, ACLU executive director, said the mayor's rules "barely pass muster" and could be challenged, but urged the council to adopt them.

Some council members wondered why, if another lawsuit will ensue. "Why would we want to forward anything that may be challenged again?" Van Turner said.

LDS Church attorney Alan Sullivan said he plans to call the city attorney's office to arrange a time to talk about how the city can eliminate the easement so the church can control behavior but still guarantee access to the public. One way is to rely on the contract's reverter clause, which suggests if the church does not maintain access, the city can take over the plaza. The ACLU shot down that proposal, too.

"As long as public access is legally secured, our view is First Amendment protections apply," Clark said.

The hearing attracted a diverse group of activists -- people protesting LDS doctrine, people assailing gays and lesbians, and people who believe the most important issue has been obscured.

"I'm all for the First Amendment," said Jacqueline Smith of West Jordan. "But not at the expense of private property rights."

Diann Jeppson of West Valley City agreed. "I was married in the Salt Lake Temple. It feels like home to me," Jeppson said as she gathered petition signatures calling on the city to give up the easement.

Friends of Main Street Plaza, the group of largely LDS members spearheading the petition drive, also handed out an action plan for ensuring Anderson is not re-elected "for the good of our city."

But the way Salt Lake City resident Kris Kirry sees it, the mayor is the only one proposing any solutions. "I don't like the LDS Church's position that it's 'our way or no way,' " Kirry said.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.