Full appeals court won't hear Mormon church's appeal
By The Associated Press
11.15.02
SALT LAKE CITY — The Mormon church was denied a new hearing by the 10th U.S. Circuit Court of Appeals but still hopes to get control over public conduct on a block-long stretch of Main Street it bought for a plaza.
The full Denver-based court declined yesterday to review an October decision by a panel of three judges who ruled the church cannot evict protesters or enforce rules of public conduct because the city retains a public easement through the plaza.
Dave Buhler, chairman of the Salt Lake City Council, said it could rewrite the deal to surrender the public easement, although Mayor Rocky Anderson insists only he can make that decision. Anderson spokesman Josh Ewing says the mayor "still isn't going to give back the easement."
Amid the bickering, the church announced yesterday it would appeal to the U.S. Supreme Court.
"The Constitution also guarantees property owners, including churches, the right to the full enjoyment of their property," the Church of Jesus Christ of Latter-day Saints said in a statement.
Earlier yesterday, a lawyer retained by the City Council issued an opinion saying the council has the legislative power to abolish the public easement on 660 feet of contested sidewalks.
The council plans to consider that option as well as the mayor's plan to regulate public expression at the plaza, Buhler said.
In his seven-page opinion, University of Utah law professor John Martinez said the council could undo a public easement it created when the city sold the land to the church for $8.1 million in 1999.
"Any public access would be up to the discretion of the church," Martinez said at a City Hall news conference.
The dispute arose after the church imposed rules restricting protests, demonstrations and other activities on a former stretch of Main Street from North Temple to South Temple streets.
The city went along, writing into law a provision saying nothing in the easement "shall be deemed to create or constitute a public forum, limited or otherwise, on the property."
The church banned smoking, sunbathing, bicycling and "any illegal, offensive, indecent, obscene, vulgar, lewd or disorderly speech, dress or conduct." It also claimed the right to ban anyone who violated the rules.
The American Civil Liberties Union of Utah sued on behalf of Salt Lake City's First Unitarian Church and others, arguing the restrictions were unconstitutional. The 10th Circuit panel overturned U.S. District Judge Ted Stewart, who sided with the church.
The appeals court held that the city could not let the church enforce its own rules on a public easement. "The city cannot create a 'First Amendment-free zone,' " it ruled.
After some hedging, Anderson on Oct. 22 announced he would not disturb the public easement.