The ACLU of Utah objects to Mayor Anderson’s closed-door meeting to discuss the future of the Main Street Plaza easement.
ACLU of Utah Objects to Mayor Anderson's Closed-Door Meeting to Discuss Future of Main Street Plaza Easement
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ACLU Objects to Closed-Door Meeting
October 15, 2002
Mayor Ross Anderson
451 South State Street
Salt Lake City, Utah 84111
Dear Mayor Anderson,
We write to object, in the strongest possible terms, to your plans to convene a closed-door meeting to address what you incorrectly perceive to be a dilemma about the City’s duty in the wake of the Tenth Circuit’s recent decision in First Unitarian Church v. Salt Lake City Corporation. The stated reason for the meeting is a purported concern for abiding by the agreement the City reached with the LDS Church. If that is indeed the City’s concern, then the City would not be honoring, but would be violating, the terms of the agreement by transferring the easement. We direct your attention to the following provision:
6.2. Severability. In the event that it is finally determined by a court having jurisdiction over Grantee or the Property that any of the terms, conditions, limitations or restrictions set forth in this instrument are unconstitutional or otherwise unenforceable, the remaining terms, conditions, limitations and restrictions set forth herein shall remain binding and enforceable.
This provision makes clear that the City and the church both clearly anticipated the current situation, and provided a contractual solution. That solution is that the unconstitutional restrictions on the easement fall, but the easement stands.
Besides violating the parties’ agreement, a transfer of the easement subject to some less formal "agreement" that the property would remain open to the public would not solve the fundamental problem but would only give rise to new and independent constitutional claims. The Venetian case, cited by the Tenth Circuit, is quite clear that, with or without an easement, public access requires public rights, including First Amendment protections.
More seriously, in its press release on this issue the City expressed a desire to protect the Church from a " barrage of protesters - some who ridicule the beliefs of church members, sometimes in rude and offensive ways." As the Tenth Circuit held, however, protecting the Church is not a legitimate government interest. This is consistent with longstanding United States Supreme Court precedent that "[i]t is not the business of government in our nation to suppress real or imagined attacks upon a particular religious doctrine." See Burstyn v. Wilson, 343 U.S. 495, 504 (1952).
In short, the City’s only obligation, and the only legally acceptable course for the City to follow, is to retain the easement and draft constitutionally permissible time, place and manner regulations to govern the Main Street Plaza.
Finally, we express our utter dismay that you would convene a meeting that includes a member of our Board of Directors and representatives of the parties to this litigation but exclude the public and the press. Closed-door discussions and negotiations were the seed of what you correctly view as a misbegotten attempt to sell the public’s First Amendment rights in the first place. We will request that the invitees decline your invitation to attend such a meeting, and we hope that in future efforts to address these important issues you will demonstrate a heightened concern for the public’s rights to openness and transparency.
Incoming Executive Director
cc: Salt Lake City Council Members
Office of the Mayor
FOR IMMEDIATE RELEASE
Monday, October 14, 2002
Mayor Anderson Seeks Resolution of Main Street-LDS Plaza Dilemma
Anderson gathers group of ethicists, lawyers, and religious and community leaders to gain advice and perspective, and to discuss options
Salt Lake City -- When the U.S. Court of Appeals for the Tenth Circuit invalidated speech restrictions on property owned by the Church of Jesus Christ of Latter-Day Saints on Main Street, Mayor Rocky Anderson immediately realized the dilemma Salt Lake City now faces. The Church of Jesus Christ is no longer getting what it bargained for when it purchased the land from Salt Lake City in 1999. The Church now faces a barrage of protesters - some who ridicule the beliefs of church members, sometimes in rude and offensive ways. Also, Salt Lake City has a deep interest in providing uninterrupted access to the Main Street Plaza, as was contemplated by the Church of Jesus Christ and Salt Lake City at the time Main Street closure was approved.
Now, Anderson is seeking a fair and equitable solution that would protect the rights and interests of the public, yet live up to the spirit of the original agreement reached between the City and the Church of Jesus Christ. To obtain guidance, Anderson is convening a group of ethicists, lawyers, and religious and community leaders to discuss legal and ethical options to resolving the issue. The group will meet at the City and County Building on Tuesday, October 15th at 3:00 PM. The meeting is not open to the public or the press.
Members of the group:
Bishop Dave Burton
Bishop Carolyn Tanner-Irish
Mayor Rocky Anderson
Contact: David Nimkin, Chief of Staff