ACLU vents ire over plaza deal

DENVER — Despite a July 2003 deal ceding control of the Main Street Plaza to The Church of Jesus Christ of Latter-day Saints, the area continues to be "infused with public purposes" and should therefore be subject to all the constitutional requirements of a traditional public forum, an attorney for the American Civil Liberties Union told a federal appeals court in Denver Wednesday.

Attorney Mark Lopez said the agreement between Salt Lake City and the LDS Church changed nothing more than the name on the property deed, meaning the constitutional problems on the former block of downtown remain.

The ACLU is asking the 10th U.S. Circuit Court of Appeals to find that the city's decision to sell a public easement on the controversial plaza to settle an earlier lawsuit runs afoul of the U.S. Constitution.

A Utah federal judge approved the deal in which the church traded 2.1 acres of land on the city's west side for the easement as a way for Salt Lake City to disentangle itself from a situation where it would have to allow typical First Amendment activities on the sidewalks running through the plaza. The church imposed speech and behavior restrictions on the plaza shortly after buying it from the city in 1998 for $8.1 million.

Relinquishment of the easement was a solution suggested by an earlier panel from the 10th Circuit, although the judges did not indicate specifically how that should be done. The federal appeals court earlier ruled that as long as the city retained some control over the easement, constitutional protections must apply.

It was that issue — allegations of the city's continued control of the property — that appeared to be of most interest to the judges Wednesday morning. The panel peppered attorneys with questions about the current function of the plaza and whether the church, if it so chose, could close the property in its entirety.

"What words in the deal prohibit the Mormon Church from shutting the plaza area at their wish?" Judge Carlos Lucero asked.

If the area is indeed truly private, the judge said, the church could post security guards at all Main Street Plaza entrances and restrict access to anyone but LDS faithful or tourists.

Which the church could do under the terms of its agreement with the city, attorney Steven Allred said.

"This is private property. The fact that the LDS Church sees fit to invite people onto the property is no different, in my opinion, than my inviting people into my home," he said.

LDS Church attorney Alan Sullivan agreed that the church can restrict public access to the plaza at any time and has done so on a number of occasions since July 2003.