Deseret News, Oct. 23, 2002
By Brady Snyder, Deseret News staff writer
Court documents filed Wednesday ask for a full panel of the 10th Circuit to hear the case. Previously, three of the circuit’s judges heard the case, ruling 3-0 against the church.
Now nine judges on the 10th Circuit will decide whether to take the case, which challenges speech and conduct restrictions on a one-block section of Main Street owned by the LDS Church. If the court declines to rehear the case, the church can appeal to the U.S. Supreme Court. The 10th Circuit has no time limit for deciding whether to hear the case.
Salt Lake civil liberties attorney Brian Barnard said it was “very, very” unlikely for the 10th Circuit to grant a rehearing before the entire panel.
Salt Lake City Mayor Rocky Anderson agreed. He said the city, which was a party to the original suit, would not join the church’s appeal.
“It’s completely fruitless to seek rehearing before the 10th Circuit Court of Appeals,” Anderson said. “This was a unanimous three-judge panel opinion. They would have to persuade five out of six of the remaining judges at the 10th Circuit. The odds of that are almost nil.”
Church attorney Von Keetch admitted it was an uphill battle. The church is seeking a rehearing on four grounds:
- The 10th Circuit’s ruling is in direct conflict with an earlier decision from the same court called Hawkins v. City, County of Denver. In that case the 10th Circuit ruled that a First Amendment public forum did not exist on private property even though the local government maintained a public right of passage through a public plaza.
- The ruling raises questions of exceptional importance.
- The remedy the 10th Circuit ordered raises constitutional issues. Attorneys note that two events planned for the plaza in late November, an anti-war protest and a “wine-and-cheese tasting party,” would interfere with the church’s holiday plans for the plaza.
- The 10th Circuit’s decision is unnecessary to preserve First Amendment expression. The church argues that there are 2 1/2 miles of public sidewalk surrounding the downtown LDS campus, so banning free expression from a small section of sidewalk doesn’t unfairly restrict free speech. The church is left to wonder if it has to apply for a city permit to conduct programs on its own land.
Stephen Clark, who has worked on the plaza case for the America Civil Liberties Union, said the church’s views are flawed. He said the three-judge panel’s ruling was not in direct conflict with the Hawkins case because the sidewalk in question was not considered a public thoroughfare.
Clark said the judge who wrote the Hawkins decision was on the three-judge panel that heard the Main Street Plaza case so “he obviously didn’t think there was a conflict.”
Keetch disagreed, saying that two community colleges and a church sat on one end of the Denver plaza, while a business district lay at the other. Pedestrians in Denver used the right of way to commute between the two ends.
“It’s exactly the same,” he said.
Along with the church’s request for rehearing, the National Association of Counties filed documents supporting the church’s position.
Also Wednesday, the Salt Lake City Council hired an attorney, University of Utah law professor John Martinez, to determine, among other things, whether it could override Mayor Rocky’s Anderson decision on the Main Street Plaza.
Previously, council members had allocated up to $5,000 to hire an attorney if Anderson’s plaza decision wasn’t to their liking.
If it is shown that the council has override authority, Council Chairman Dave Buhler said the group would explore giving up the easement.
Anderson maintains that city ordinances give him, as mayor, the right to govern the city’s real-property matters.
In a closed-door meeting Monday, H. David Burton, presiding bishop of the LDS Church, asked Anderson to relinquish the city’s easement through the Main Street Plaza.
That solicitation — the church’s first formal request — was flatly denied by Anderson, who said Tuesday that the city would not cede its easement under any circumstances.
The denial seemed to evaporate any good will that once existed between Salt Lake’s liberal mayor and the conservative church.
Tuesday, Keetch flayed Anderson’s refusal.
“We’re so disappointed in what Mayor Anderson did today,” Keetch said. “The city needs to give up the easement.”
In the church’s view, having the city give up its easement is the “prime solution” to the plaza mess, Keetch said.
It is one of three solutions the three-member panel of the 10th Circuit Court of Appeals offered in its ruling two weeks ago.
Three years ago the city sold a block of Main Street to the church for $8.1 million. The church turned the street into a pedestrian plaza.
With Salt Lake City’s First Unitarian Church as its client, the American Civil Liberties Union sued the city over the sale, which gave the church the right to control conduct, dress and speech on the Main Street block while guaranteeing 24-hour public access through the plaza. Access was ensured through a city easement.
U.S. District Judge Ted Stewart ruled against the ACLU, stating that the church’s conduct, dress and speech restrictions were constitutional. Two weeks ago, the 10th Circuit Court of Appeals panel overturned Stewart’s ruling, saying the restrictions violated the First Amendment.
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