SALT LAKE CITY — The Mormon church filed an appeal yesterday seeking to overturn the 10th U.S. Circuit Court of Appeal's ruling that the sidewalks of the church-owned Main Street plaza must remain open to free speech.
In the appeal, the Church of Jesus Christ of Latter-day Saints cites an earlier case decided by the same court that it claims conflicts with the Main Street ruling.
The Main Street case — which was decided by a three-judge panel — should be reviewed by the full court to clear up the inconsistency, the church said.
Church attorney Von Keetch conceded the odds of a successful appeal were slim.
"We think this is a case that presents the kind of question the court ought to hear," Keetch said. "In pure statistics the battle is uphill. We're just taking it a step at a time."
In a 1999 Denver case, the appeals court found that a First Amendment public forum didn't exist on a secular pedestrian plaza created when the city closed a street that ran through the Denver Performing Arts Center campus.
On Oct. 9, the 10th Circuit ruled that Main Street plaza sidewalks are traditional public spaces. The court said restricting free speech on the Main Street sidewalks, even though owned by the church, was unconstitutional.
It was the city's job to regulate behavior on the public easements, the court ruled. But the city couldn't create a "First Amendment-free zone," despite what the city had promised in the sale, the three-judge panel ruled.
Now the full court will decide whether to hear the appeal. If the 10th Circuit declines, the church could appeal to the U.S. Supreme Court.
Former American Civil Liberties Union attorney Stephen C. Clark, who continues to work on the case, said the church's use of the ruling in the Denver case isn't surprising.
However, "one of the judges on the Main Street case sat on (the Denver case) and didn't view any inconsistency," Clark said.
Clark said the two plazas are strikingly different. He described the Denver plaza as a covered, elevated terrace that serves as an "extended lobby" for the Denver Performing Arts Center.
"It isn't a public thoroughfare, this isn't part of the downtown pedestrian grid," he said.
"The city has always made clear ... that guaranteeing public access and passage on this property (Main Street) is absolutely essential," Clark said.
"The church agreed when they went into this deal that the easement would stand," he said. "The LDS Church has lost a gamble it had made. They're now trying to rewrite the deal. That is legally wrong and morally and ethically wrong. The church should accept the risk it voluntarily assumed."
The church filed its appeal a day after Salt Lake City Mayor Rocky Anderson released a 22-page memo that said he wouldn't try to rewrite the Main Street plaza sale contract between the city and the church.
Former Mayor Deedee Corradini negotiated the sale in 1999.
Anderson said he was compelled to agree with the court's ruling that the city was responsible for controlling conduct on the public sidewalk. The church had imposed a long list of forbidden behaviors as a condition of the sale.
The mayor said he would like reasonable and constitutional restrictions on the sidewalk, and would take to the City Council recommendations for so-called time, place and manner rules.
The disputed sidewalks run in front of the Mormon temple in the heart of downtown Salt Lake City and are landscaped and maintained by the church.
The church made significant improvements to the block, transforming the road into a plaza with fountains and flowers, and outlawed smoking, sunbathing, bicycling and "engaging in any illegal, offensive, indecent, obscene, vulgar, lewd or disorderly speech, dress or conduct."
City leaders also had granted the church exclusive rights to distribute literature and broadcast speeches and music on the block.