ACLU ponders an appeal

The American Civil Liberties Union of Utah governing board will meet Monday to consider whether it will appeal last week's federal court ruling that Salt Lake City didn't violate free speech rights by trading away public access on the LDS Church's Main Street Plaza.

ACLU of Utah Executive Director Dani Eyer has already said an appeal is definite enough to "set your watch by." But board members still have to go along, and observers agree that U.S. District Judge Dale A. Kimball has rendered a fairly seamless decision.

Local First Amendment attorney Randy Dryer said Kimball's thorough, comprehensive rejection of the ACLU's legal claims makes it unlikely the ACLU can succeed on appeal like it did in the first plaza case. (See accompanying plaza time line.)

"Given Judge Kimball's articulation of his rationale and reasoning, it's going to make it harder to be overturned on appeal," Dryer said. "I think his opinion is going to be upheld."

Others agree Kimball's 82-page, detailed dismissal will stand, since the plaza deal was crafted with a potential ACLU suit in mind.

City Council Chairwoman Jill Remington Love noted the council hired two outside attorneys and carefully consulted with the City Attorney's Office before voting on Mayor Rocky Anderson's Unity Center compromise. In that deal, the city traded its public access easement on Main Street Plaza for 2.1 church-owned acres in Glendale where a multimillion dollar, privately funded community center will be built.

"I ended up voting for the mayor's solution because I thought it would end the legal battle," she said.

LDS Church attorney Alan Sullivan said "the mayor and the City Council complied with the Constitution in all respects" in crafting the Unity Center swap.

The mayor said the second suit was devoid of "any legal merit" and "a very, very different lawsuit than the first one." The appeal must counter a ruling that has rejected the underpinnings of the ACLU's arguments.

Those arguments and Kimball's rejections are:

Argument — The ACLU sought a preliminary injunction barring the city's Unity Center solution. The deal caused daily damage to citizen's free speech rights by forbidding expression on the plaza. The injunction would return free speech to the plaza until the plaza case was decided.

Kimball — The argument rings hollow for two reasons — the ACLU filed its injunction request three months after they filed their lawsuit, and waited five months after the city and church closed the Unity Center deal. If the ACLU was so concerned why did it wait five months?