Plaza suit is dismissed

Federal judge rejects ACLU's conspiracy claims

Published: Tuesday, May 4 2004 12:00 a.m. MDT

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.

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