Case No. 01-4111
IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
FIRST UNITARIAN CHURCH OF SALT LAKE CITY; UTAHNS FOR FAIRNESS; UTAH NATIONAL ORGANIZATION FOR WOMEN; and CRAIG S. AXFORD, Plaintiffs/Appellants,
SALT LAKE CITY CORPORATION, a municipal corporation, Defendant/Appellee, CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, Intervenor/Appellee.
ON APPEAL FROM A SUMMARY JUDGMENT OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
The Honorable Ted Stewart, Judge Presiding
Trial Court Case No. 2:99CV-0921ST
STEPHEN C. CLARK
American Civil Liberties Union of Utah Foundation, Inc.
355 North 300 West, Suite 1
Salt Lake City, Utah 84103
American Civil Liberties Union Foundation, Inc.
125 Broad Street
New York, New York 10004
Attorney for Plaintiffs/Appellants
ROGER F. CUTLER
Salt Lake City Attorney
451 South State Street, Suite 505A
Salt Lake City, UT 84111
Attorney for Defendant/Appellee
VON G. KEETCH
Kirton & McConkie
1800 Eagle Gate Tower
60 East South Temple
Salt Lake City, UT 84145-0120
Attorney for Intervenor/Appellee
TABLE OF CONTENTS
II. STATEMENT OF ISSUES
III. STANDARD OF REVIEW
IV. STATEMENT OF THE CASE
V. STATEMENT OF FACTS
A. THE CITY AND THE LDS CHURCH ANNOUNCE A PROPOSAL FOR A PEDESTRIAN PLAZA ON MAIN STREET
B. THE PLAZA IS DESCRIBED AS PARK-LIKE PUBLIC SPACE, AND ITS CONTINUED USE AS A PUBLIC PEDESTRIAN THOROUGHFARE IS ASSURED
C. WITHOUT ADVISING THE PUBLIC, THE PLANNING COMMISSION OR THE CITY COUNCIL, THE CITY ADMINISTRATION ABANDONS CONDITION 15
D. AT A CITY COUNCIL MEETING ON APRIL 13, 1999, THE CITY’S DECISION TO ABANDON CONDITION 15 IS EXPOSED, BUT THE CITY COUNCIL VOTES TO APPROVE THE SALE
E. THE TERMS OF THE DEED AND THE CITY’S RESERVATION OF EASEMENT ENSHRINE ONE-SIDED RESTRICTIONS THAT ALLOW THE CHURCH, BUT NOT THE PUBLIC, TO ENGAGE IN EXPRESSIVE ACTIVITIES ON THE PLAZA
F. THE PHYSICAL LAYOUT OF THE MAIN STREET PLAZA
VI. SUMMARY OF ARGUMENT
A. THE PLAZA SIDEWALKS ARE, BY DEED AND BY DESIGN, PEDESTRIAN THOROUGHFARES; THEREFORE, THEY ARE A PUBLIC FORUM, PROTECTED BY THE FIRST AMENDMENT
B. TRADITIONAL PUBLIC FORUMS CANNOT BE STRIPPED OF THEIR PROTECTED STATUS AND SUBJECT TO UNCONSTITUTIONAL RESTRICTIONS BY TRANSFERRING TITLE TO A PRIVATE PARTY AND DECLARING THAT THEY ARE NO LONGER PUBLIC FORUMS
C. EVEN IF THE MAIN STREET PLAZA SIDEWALKS ARE A NONPUBLIC FORUM, THE RESTRICTIONS TO WHICH THE CITY AGREED ARE UNREASONABLE AND DISCRIMINATORY, IN VIOLATION OF FREE SPEECH AND EQUAL PROTECTION
1. THE RESTRICTIONS TO WHICH THE CITY AGREED ARE NOT REASONABLE
2. THE RESTRICTIONS TO WHICH THE CITY AGREED ARE DISCRIMINATORY
D. THE CITY’S DELEGATION OF AUTHORITY TO DECIDE WHO CAN USE THE EASEMENT ACROSS THE PLAZA VIOLATES THE ESTABLISHMENT CLAUSE
E. THE DISTRICT COURT ERRED IN DISMISSING APPELLANTS’ BROADER ESTABLISHMENT CLAUSE, EQUAL PROTECTION AND STATE LAW CLAIMS
IX. ORAL ARGUMENT REQUESTED
X. CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)(B)
Memorandum Opinion and Order of United States District Court (Addendum “A”)
Ordinance No. 28 of 1999 (Closing a portion of Main Street between North Temple and South Temple Streets) (Addendum “B”)
Deed of Trust (Addendum “C”)
Newspaper Items (Addendum “D”)
TABLE OF AUTHORITIES
ACLU of Nevada v. City of Las Vegas, 13 F. Supp. 2d 1064 (D. Nev. 1998)
Andersen v. Chrysler Corp., 99 F.3d 846 (7th Cir.1996)
Arkansas Educ. Tele. Comm”n v. Forbes, 523 U.S. 666 (1998)
Bauchman v. West High School, 132 F.3d 542 (10th Cir. 1997), cert. denied, 524 U.S. 953 (1998)
Bradfield v. Roberts, 175 U.S. 291 (1899)
Charter Canyon Treatment Ctr. v. Pool Co., 153 F.3d 1132 (10th Cir.1998)
Chicago ACORN v. Metropolitan Pier Exhibition Auth., 150 F.3d 695 (7th Cir. 1998)
Citizens To End Animal Suffering v. Faneuil Hall Marketplace, Inc., 745 F. Supp. 65 (D. Mass. 1990)
Cohen v. California, 403 U.S. 15 (1971)
Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788 (1985)
Evans v. Newton, 382 U.S. 296 (1966)
Frisby v. Schultz, 487 U.S. 474 (1988)
Hague v. CIO, 307 U.S. 496 (1939)
Hawkins v. City and County of Denver, 170 F.3d 1281(10th Cir.), cert. denied, 528 U.S. 871 (1999)
Heffron v. International Soc. For Krishna Consciousness, Inc., 452 U.S. 640 (1981)
International Soc”y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992)
Jackson v. City of Markham, 773 F. Supp. 105 (N.D. Ill. 1991)
Jews for Jesus v. MBTA, 984 F.2d 1319 (1st Cir. 1993)
Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993)
Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982)
Lemon v. Kurtzman, 403 U.S. 602 (1970)
Lombard v. Louisiana, 373 U.S. 267 (1963)
Lynch v. Donnelly, 465 U.S. 668 (1984) Marsh v. Alabama, 326 U.S. 501 (1946)
Pirkheim v. First Union Life Ins., 229 F.3d 1008 (10th Cir. 2001)
Postal Service v. Council of Greenburgh Civic Ass’ns., 453 U.S. 114 (1981)
Religion Foundation, Inc. v. City of Marshfield, 203 F.3d 487 (7th Cir. 2000)
Rosenberger v. University of Virginia, 515 U.S. 815 (1995)
Sherbert v. Verner, 374 U.S. 398 (1963)
Simms v. Oklahoma ex rel. Dep”t of Mental Health & Substance Abuse Serv., 165 F.3d 1321, (10th Cir.), cert. denied, 528 U.S. 815 (1999)
Snyder v. Murray City Corp., 124 F.3d 1349 (10th Cir. 1997)
Thomason v. Jemigan, 770 F. Supp. 1195 (E.D. Mich.1991)
United States v. Grace, 461 U.S. 171 (1983)
United States v. Kokinda, 497 U.S. 720 (1990)
Venetian Casino Resort, L.L.C. v. Local Joint Exec. Bd. of Las Vegas, --- F.3d ---, 2001 WL 776702 (9th Cir., July 12, 2001)
Society of Separationists v. Whitehead, 870 P.2d 916 (Utah 1993)
28 U.S.C. § 1291
28 U.S.C. §§ 1331, 1343
42 U.S.C. § 1983
Utah Code Ann. § 10-9-305(2)
Utah Code Ann. § 76-2-206
Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L. Rev. 115 (1992)
L. Tribe, American Constitutional Law § 18-5, at 1705 (2d ed. 1988)
This is a civil rights case for injunctive and declaratory relief pursuant to 28 U.S.C. §§ 1331, 1343, and 2201-02, and 42 U.S.C. § 1983. This Court’s jurisdiction is pursuant to 28 U.S.C. § 1291 and Rules 3 and 4, Federal Rules of Appellate Procedure. The notice of appeal was filed on June 4, 2001, from an Order of the district court dated May 4, 2001, disposing of all parties’ claims.
II. STATEMENT OF ISSUES
1. Did the trial court err in ruling that thoroughfare sidewalks, constructed as part of a privately owned plaza on a block of Main Street in downtown Salt Lake City to replace a public street and sidewalks, and subject to a City-owned easement providing for public access and passage 24 hours a day 7 days a week, are not a public forum entitled to First Amendment protection?
2. Did the trial court err in ruling that, even though the easement creates a nonpublic forum, the restrictions on public access to and use of the easement are reasonable, content-neutral regulations rather than viewpoint-discriminatory restrictions?
3. Did the trial court err in ruling that City did not violate the Establishment Clause by agreeing to allow the LDS church to decide who can and cannot use the thoroughfare sidewalks for public access to and passage across the Main Street Plaza?
4. Did the trial court err in ruling that there is no genuine issue of material fact whether all the facts and circumstances surrounding the City’s sale of Main Street to the LDS church establish a violation of the Establishment Clause?
III. STANDARD OF REVIEW
Review of a grant of summary judgment is de novo, applying the same legal standard used by the district court. Charter Canyon Treatment Ctr. v. Pool Co., 153 F.3d 1132, 1135 (10th Cir.1998) Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). When applying this standard, this Court must “view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.” Simms v. Oklahoma ex rel. Dep”t of Mental Health & Substance Abuse Serv., 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 528 U.S. 815 (1999). When reviewing cross-motions for summary judgment, the Court must “’construe all inferences in favor of the party against whom the motion under consideration is made’” – in this case, the plaintiffs/appellants. Pirkheim v. First Union Life Ins., 229 F.3d 1008, 1010 (10th Cir. 2001), quoting Andersen v. Chrysler Corp., 99 F.3d 846, 856 (7th Cir.1996).
IV. STATEMENT OF CASE
This case arises out of the closure and sale of one block of Main Street in downtown Salt Lake City to the LDS church in April 1999. (1) The church agreed to build a park-like plaza on the property. The City reserved an easement providing for public access to and passage across the plaza 24 hours a day 7 days a week.
Plaintiffs filed this lawsuit in November 1999 challenging certain terms and conditions of the sale and easement as violations of the First and Fourteenth Amendments to the United States Constitution and analogous provisions of the Utah Constitution. The LDS church was granted leave to intervene in January 2000. Plaintiffs filed a First Amended Complaint in May 2000.
Following discovery, plaintiffs moved for partial summary judgment in November 2000. Plaintiffs sought injunctive relief and a declaration that (1) sidewalks built on the plaza to replace the former public sidewalks on Main Street are a public forum subject to First Amendment protections; (2) even if the sidewalks are not a public forum, they are a nonpublic forum, and restrictions the City imposed on the use of that forum are content- and viewpoint-based, in violation of the First Amendment’s prohibition of viewpoint discrimination as well as the Fourteenth Amendment’s guarantee of equal protection; and (3) the City gave the LDS church unfettered discretion to prohibit the public’s use and enjoyment of the sidewalks, a delegation of fundamental, discretionary governmental authority to a church in violation of the Establishment Clause. Plaintiffs did not move for summary judgment on the broader issues of (1) whether the entire plaza is a public forum and (2) whether all the facts and circumstances surrounding the sale demonstrated a violation of the Establishment Clause, Equal Protection or provisions of the Utah Constitution. The City and the church moved for summary judgment dismissing all of plaintiffs’ claims.
The district court heard oral argument on January 2, 2001, and issued a ruling from the bench denying plaintiffs’ motion for partial summary judgment and granting defendant’s and intervenor’s motions for summary judgment. The court subsequently issued a 42-page Order, which is the subject of this appeal.
V. STATEMENT OF FACTS
A. The City and the LDS Church Announce a Proposal for a Pedestrian Plaza on Main Street.
Until recently, Main Street, a “traditional public forum” in downtown Salt Lake City, consisted of a paved public road and sidewalks. (App. at 1675, 1690) On December 1, 1998, former Salt Lake City Mayor Deedee Corradini and LDS church President Gordon Hinckley announced “a proposal to develop an open-space pedestrian plaza on one block of Main Street between North and South Temple that will allow for new lawns, flower gardens, fountains and reflecting pools” (the “Main Street Plaza”). (App. at 1098-1102)
In addition to the plaza and its landscaped features, the proposal envisioned pedestrian paths along the east and west borders of the plaza, roughly where public sidewalks historically had run along Main Street. (App. at 1113-14, 1476-84489-93) The proposal envisioned that the pedestrian paths would provide not only access to the plaza and adjacent LDS church amenities, but also “easier pedestrian access to downtown merchants and the light-rail system.” (App. at 1100) The Main Street proposal was subject to a public review process and required final approval by the Salt Lake City Council. (App. at 1099)
B. The Plaza Is Described as Park-Like Public Space, and Its Continued Use as a Public Pedestrian Thoroughfare Is Assured.
The Main Street proposal was scheduled for an “issues only” public hearing before the Salt Lake City Planning Commission on February 4, 1999. (2) (App. at 1508) The Staff Report prepared for that hearing discussed the desirability of developing a public pedestrian plaza on Main Street. (App. at 1508-13) The Staff Report also listed a number of comments on the proposal from various City departments, including: “The plaza should have a balance of users and activities”; “Design the plaza to feel open and inviting to all people”; “A pedestrian corridor must be provided from South Temple to North Temple on Main Street”; and “A perpetual easement for 24-hour public access must be retained by the City from North Temple to South Temple within the existing street right-of-way. The easement should be designed and improved so as so maintain, encourage and invite public use.” (App. at 1511-12)
The Main Street proposal was scheduled for a public hearing before the Planning Commission on March 4, 1999. (App. at 1515) The Staff Report prepared for that hearing noted the relative scarcity of parks in Salt Lake City, and stated that “the lack of available land for acquisition makes it difficult to develop new park facilities. In this case, an open space pedestrian plaza is being proposed without the City having to acquire property, construct the plaza/park and maintain the property.” (App. at 1516) The report recited a number of findings of fact, including: “The pedestrian plaza will create an anchor for the north end of downtown for tourist[s] and residents to experience Main Street,” and “Public pedestrian and bicycle access [ ] will be maintained through a perpetual pedestrian easement.” (App. at 1531) The report also incorporated several recommendations, including: “The City shall retain a perpetual easement for 24-hour public pedestrian and bicycle access from North Temple to South Temple within the existing street right-of-way. The easement shall be planned and improved so as to maintain, encourage, and invite public use.” (Id.)
At the March 4, 1999, public hearing before the Salt Lake City Planning Commission, Kerry Nielsen, representing the LDS church, presented “kind of a fully developed level of this concept and scheme of what the plaza might be and what it might bring to Salt Lake City.” (App. at 1549-50) Mr. Nielsen used diagrams and renderings to explain what the plaza would look like. (App. at 1563-73) These materials included depictions of broad, straight walkways along both edges of the plaza, connecting to the public sidewalks at each end of the plaza. (App. at 1566-71) He described the experience of walking south toward downtown along the western edge of the plaza as “a little bit of Paris in Salt Lake City with a boulevard or some nice park and it has a very, I think, enticing and desirable urban spirit and urban feeling to it, get a sense of . . . people moving through activity and coming up and down from Main Street connecting through perhaps to bus stops on North Temple or activities otherwise related to destinations at Church Headquarters or downtown.” (App. at 1552) (emphasis added) He described one view as “showing our intent in design and effort to coordinate and communicate the plaza as an element of the City as part of the cultural and historic fabric and it would basically give us a chance to contribute to the northern edge . . . open space for a world class city which would provide visitors from around the world a place to come and enjoy and have opportunity to experience our great Salt Lake City.” (Id.)
Marc Mascaro, also representing the LDS church, indicated the church’s support for the Planning Commission Staff’s recommendations. (App. at 1549) The minutes reflect his comments about the public’s access to and use of the property: “The Church’s intent is to not restrict public access, but to provide public access. . . . Mr. Mascaro’s hope is that the plaza will be inviting enough and presented in such a way that people will walk up that street and not think it is private property.” (App. at 1218) (emphasis added) The minutes also summarize a discussion between Mr. Mascaro and Planning Commission member Craig Mariger:
“Mr. Mariger then asked Mr. Mascaro if he envisions any use restrictions by the public that are more restrictive than a public park in Salt Lake City. Mr. Mascaro stated that the plaza will be open to use by the public, however, there will need to be some limitations on uses that relate to protesting, picketing and demonstrating. These limitations have not been fully defined, but will be worked out with the City planning and legal staff.”
(App. at 1212) At a subsequent public hearing, Mr. Mariger summarized his March 4 colloquy with Mr. Mascaro, and his resulting understanding, based on the LDS church’s representations that the property would be park-like public space, as follows:
“The [LDS church] in [its] presentation to the Planning Commission stated that this would be public space paid for by the church and maintained by the church. . . . I asked . . . would a person who had Dennis Rodman hair be invited and feel welcome into this park and [the church] said ‘Yes.’ I said would a person who had a t-shirt on which said ‘life sucks,’ would they be invited into this park and feel welcome – ‘Yes’ – and I said would someone with three rowdy teenagers who looked like some of the kids who hang out at the mall, would they, if they were running through this space, would they feel welcome and be allowed to be in this space, and the answer was ‘Yes.’”
(App. at 1285)
At the conclusion of the March 4, 1999 Planning Commission hearing, the Commission voted 7 to 1 to forward a recommendation that the City Council approve the sale of Main Street to the LDS church. (App. at 1218-20) The Planning Commission’s recommendation was subject to several conditions. One of the conditions was that the City “retain a perpetual easement for 24-hour public pedestrian and bicycle access from North Temple to South Temple within the existing street right-of-way. The easement shall have no gates or fences across or within the pedestrian plaza except those approved by the Planning Director and shall be planned and improved so as to maintain, encourage, and invite public use.” (App. at 1219) The Planning Commission also specifically added two new conditions (numbered 14 and 15) to their March 4, 1999 recommendation approving the sale. Condition 15, provided: “That there be no restrictions on the use of this space that are more restrictive than is currently permitted at a public park. (underlined portion added by the Planning Commission)” (App. at 1220) Mr. Mariger later said: “The purpose of the Planning Commission’s condition was that every person would be invited, feel invited into this space. Whether it is right or wrong, or wrongly felt, not everybody in this community feels invited into Temple Square, and feels that they can go into that space and use it like a public park.” (App. at 1285)
C. Without Advising the Public, the Planning Commission or the City Council, the City Administration Abandons Condition 15.
Some time after the March 4 Planning Commission decision, the church advised the City that if Condition 15 added by the Planning Commission required the creation of a free speech forum on the property, that would be unacceptable to the church, and it would not proceed with the purchase of Main Street on those terms. (App. at 1659-60) On April 1, 1999, Mr. Wright produced a draft memorandum to the City Council, specifically adverting to the church’s opposition to Condition 15. (App. at 1933) The memorandum apparently was never sent to the City Council. (App. at 1948-49)
On April 5, 1999, Mr. Reid, William Wright (former Salt Lake City Planning Director) and Roger Cutler (Salt Lake City Attorney) met with LDS church representatives, including Mr. Mascaro, David Burton (the Presiding Bishop of the LDS church, with responsibility for the church’s properties) and Mr. Nielsen to discuss the terms and conditions of the deed of sale and the easement that was needed to preserve pedestrian access and passage. (App. at 1660) At the meeting, the LDS church stated “it was not interested in purchasing the property unless it was able to control the activities that occurred on the property.” (Id.) Rather than insist that the property retain its historic status as a public forum, or bargain for neutral, constitutionally permissible regulations consistent with the nature and intended use of the plaza and with Condition 15, Mr. Reid reportedly stated such control was acceptable to the City. (Id.) Mr. Cutler suggested adding language to make clear that the property would not be a public forum. (Id.) The April 5 meeting was closed to the public, and the decision to strip Main Street of its public forum status, effectively abandoning Condition 15, was not conveyed to the public. (App. at 1677-78)
On April 6, 1999, the church responded to a request that it demonstrate to the City Council how the sale of Main Street would further the public interest. (App. at 1584-89) The church stated that the proposed Main Street Plaza would provide or encourage a “pedestrian-friendly area”; “traffic emphasis on pedestrians”; “attractive and safe pedestrian areas”; “a downtown pedestrian area”; “a more pedestrian-friendly downtown area”; “the ease of accessing Salt Lake City’s number one tourist attraction, Temple Square, with access to the Main Street corridor, including both malls and other businesses”; “multiple access points from the pedestrian plaza to the Temple Square and LDS Church Administration campus, and the downtown shopping area, attracting in excess of 5,000,000 visitors”; “a funnel to the Crossroads and ZCMI Center shopping malls as well as the remainder of the downtown business district”; and in general help Main Street, “which is the heart of the shopping area, to become the most pedestrian oriented street in Salt Lake City,” helping to “preserve and enhance the downtown character of the area.” (Id.) Nothing in the letter hinted that the church objected to Condition 15 imposed by the Planning Commission. (Id.)
On April 6, 1999, the Main Street proposal came before the City Council for a briefing. (App. at 1581) Prior to the briefing, the City Council had received a “Council Transmittal” that included the Planning Commission’s 15 conditions. (App. at 1222-27) Referring to Condition 15, Mr. Wright “said the Planning Commission was struggling with the issue of guaranteeing public access as part of their deliberations and conclusions. He said it was suggested using the City’s regulation of Parks as a framework for it. He said it was also suggested that certain behaviors should not be allowed on the property. He said this issue was being analyzed and should be to the Council Friday [April 9, 1999].” (App. at 1582) There is no indication that he advised the City Council that that the City had abandoned Condition 15.
On April 9, 1999, City Council Staff member Russell Weeks sent a memorandum to the City Council on the proposed sale of Main Street. Again, instead of making clear that Condition 15 had become a deal breaker and that the City had abandoned it, Mr. Weeks stated: “In its new submission the Administration has included a reservation of easement that the Administration indicates conforms to the recommendations made by the Planning Commission when the commission considered the proposal to close the portion of Main Street.” (App. at 1264) Mr. Weeks believed the submission maintained the concept of a park-like public space:
“It is conceivable that people who meet the criteria for Chapter 3.50 [of the City Code, which allows “citizens to engage in activities protected by the free speech and expression provisions of the Constitutions of Utah and the United States subject to lawful time, place and manner regulations”] could conduct free speech activities in the right of way of the section of Main Street if the City Council adopts the proposed ordinance.”
(App. at 1133)
On April 9, 1999 City Attorney Cutler and Deputy City Attorney Lynn Pace transmitted to the City Council a memorandum with a draft reservation of easement and draft ordinance for the street closure. (App. at 1591-1603) That memorandum provides in part as follows:
“As you are aware, the LDS Church has petitioned the City to close and sell a portion of Main Street between North Temple and South Temple Streets. The Planning Commission recommended approval of the petition, subject to the reservation of a pedestrian easement across that property.
“This office has been working with the attorneys for the LDS Church and the City planning staff to draft an easement which would accomplish this purpose. Attached, please find a draft of that easement, which will be included as part of a special warranty deed conveying title to the property to the LDS Church, with the pedestrian and utility easement reserved to the City.
“Consistent with the concept approved by the Planning Commission, this document: (1) preserves a 24-hour pedestrian easement for access, use, ingress and egress, across the property, subject to reasonable conditions; [and] (2) prohibits the erection of gates or fences across either the north or south end of the property.”
(App. at 1591) (emphasis added)
The attached documents conditioned the closure of Main Street “upon compliance with all of the conditions identified by the Salt Lake City Planning Commission, a modified summary of which is attached hereto as Exhibit ‘B.’” (App. at 1599) The conditions listed on Exhibit “B” included the longstanding requirements that the City “retain a perpetual easement for a 24-hour public pedestrian and bicycle access from North Temple to South Temple within the existing street right-of-way,” that there be “no perimeter gates or fences along the North Temple or South Temple rights of way,” and that the Plaza “be planned and improved so as to maintain, encourage, and invite public use.” (App. at 1602) They did not include, however, Condition 15; instead, only 14 conditions were listed. (App. at 1603) Condition 15 had disappeared without a trace.
D. At a City Council Meeting on April 13, 1999, the City’s Decision to Abandon Condition 15 Is Exposed, but the City Council Votes To Approve the Sale.
On April 13, 1999, the Main Street proposal came before the Salt Lake City Council for a public hearing. No one from the City administration or the church drew attention to the disappearance of Condition 15; to the contrary, Mr. Mascaro still spoke, as he had consistently, of the LDS Church’s proposal “to develop Main Street into a pedestrian plaza.” (App. at 1271) Mr. Mascaro stated: “The Planning Commission last month, as you know, voted seven to one to approve this with various conditions. We support those conditions, we’ve tried to incorporate those over the last few weeks with the City’s Administration and Legal Department.” (App. at 1273) (emphasis added) Mr. Mascaro also stated: “We feel ultimately this will be a great benefit to the City, we feel that it will create the downtown atmosphere that we want, to create the urban fabric between all those entities that are downtown, be it business, be it the L.D.S. Temple, which is the number one attraction in Salt Lake, here in Utah, it will help bring those people not only to those parks – or those blocks, but also bring them into a downtown area and get them coming down into our Main Street area and to our businesses.” (Id.) (emphasis added)
In contrast to Mr. Mascaro’s statements obscuring the material change in the terms and conditions of the sale, during the public comment period Mr. Mariger of the Planning Commission drew specific attention to the change:
“[T]he petition before you is not the same petition that was approved by the Planning Commission. Condition 15 place on that petition by the Planning Commission was that the use of the public space be more – be no more restrictive than that of a public park. And the proposal that is before you eliminates that as an attachment to the ordinance[,] that is not part of that. And also the . . . easement description that is contained or attached is absolutely just the contrary.”
(App. at 1285) This is the first time this material change in the transaction was specifically brought to public light.
After the presentations and the public comments, City Council member Thomas Rogan expressed concerns about the circumstances surrounding the proposed sale. He urged the City Council to “ensure the process was clean and decisions were based upon all of the facts”; he argued that the findings of fact “were not full truths”; and he spoke of “the appearance of collaboration.” (App. at 1290-93) Mr. Rogan echoed and amplified those sentiments at a City Council meeting on May 16, 2000, labeling the so-called public process around the sale of Main Street a “charade” and a “mockery.” (App. at 1952-53)
At the conclusion of the hearing, the City Council voted 5 to 2 to approve the sale pursuant to adopt the Ordinance No. 28 of 1999 (the “Ordinance”). (A copy of the Ordinance is attached as Addendum “B”)
E. The Terms of the Deed and the City’s Reservation of Easement Enshrine One-Sided Restrictions that Allow the Church, but not the Public, to Engage in Expressive Activities on the Plaza.
Following the City Council’s adoption of the Ordinance, the terms and conditions of the Main Street sale were formalized in a Special Warranty Deed recorded on April 27, 1999 (the “Deed”). (A copy of the Deed is attached as Addendum “C.”) The Deed provides for the conveyance of Main Street from the City to the church subject to a “reservation of easements.” The reservation of easement for pedestrian access and passage states:
“Pedestrian Access and Passage. Subject to the conditions, limitations, and restrictions set forth in section 2 hereinbelow, Grantor [the City] reserves an easement over and across the surface of the Property [Main Street] for pedestrian access and passage only . . . . The Property shall be available for such pedestrian access and passage at all times, both day and night. Grantee [the LDS church] shall not erect any perimeter fences or gates on the Property along the North Temple or South Temple rights of way. . . . Grantor may allow the general public to use this easement for pedestrian access and passage only, but all use of this easement shall be subject to the conditions, limitations and restrictions described hereinbelow.”
(Id., Section 1.3)
The Deed provides that the Reservation of Easement is subject to certain conditions, limitations and restrictions:
“Private Property. The Property is and shall at all times remain the private property of Grantee. Nothing herein shall be deemed to dedicate the Property to public ownership or use beyond the scope of the reserved easement. The use of the Property by the Public is and shall remain permissive, and neither Grantor nor the public shall acquire any rights to the Property by such use beyond the scope of the easement reserved herein. Neither Grantor nor the public shall be entitled to claim or assert any prescriptive use rights or any right of adverse possession against Grantee. No third party shall be entitled to claim or assert any rights against Grantee or against the Property beyond the use of the easement described herein. Grantee shall have the right to . . . restrict the pedestrian access and passage to sidewalks or walkways intended for that purpose, provided that the pedestrian flow across the Property shall not be unreasonably obstructed or limited.”
(Id., Section 2.1)
The Conditions, Limitations and Restrictions also include a provision granting the LDS church the right to prevent uses of the easement other than pedestrian passage:
“Right to Prevent Uses Other Than Pedestrian Passage. Nothing in the reservation or use of this easement shall be deemed to create or constitute a public forum, limited or otherwise, on the Property. Nothing in this easement is intended to permit any of the following enumerated or similar activities on the Property: . . . erecting signs or displays, using loudspeakers or other devices to project music, sound or spoken messages, engaging in any illegal, offensive, indecent, obscene, vulgar, lewd or disorderly speech, dress or conduct, or otherwise disturbing the peace. Grantee shall have the right to deny access to the property to persons who are disorderly or intoxicated or engaging in any of the activities identified above.”
(Id., Section 2.2)
Although the Deed prohibits speech the LDS church considers “offensive,” it does not prohibit all speech. The Deed permits the church to “erect and maintain one or more kiosks or information booths which may be occupied by attendants.” The Deed also provides that the restrictions on expressive activities contained in Section 2.2 do not apply to the church:
“The provisions of this section are intended to apply only to Grantor and other users of the easement and are not intended to limit or restrict Grantee’s use of the Property as owner thereof, including, without limitation, the distribution of literature, the erection of signs or displays by Grantee, and the projection of music and spoken messages by Grantee.”
(Id., Sections 1.4 and 2.2)
The Deed also provides that the Church “may prohibit and lawfully prevent access to the Property” by members of the public who have “threatened” harm or damage to members or property of the church or who “have on more than one previous occasion entered on the Property and engaged in activities identified in section 2.2 above.” The Deed further grants the church the right to “use all lawful means available to owners of private property to prevent any uses of the easements which are contrary to the provisions of this instrument,” including “the right to obtain injunctive relief enforcing the provisions of this instrument.” (Id., Sections 2.3 and 3)
F. The Physical Layout of the Main Street Plaza
As constructed, the Main Street Plaza consists of a landscaped area occupying roughly the space where the paved public street used to run between North Temple and South Temple Streets (the “Plaza”). (App. at 1352, 1436) (3) The Plaza features a large, oval reflecting pool roughly at its center, directly east of the LDS cChurch’s Salt Lake Temple and west of sidewalks running east and west across the block directly to the east of the Plaza, generally referred to as the Church Office Building block. (App. at 1355, 1363) The Plaza also includes a number of internal pathways that provide access to internal Plaza features, around the reflecting pool and otherwise across the Plaza at various angles. (App. at 1364)
The Plaza also features two straight paved paths running north and south roughly where the sidewalks used to run on the right-of-way along the east and west sides of the paved public street (the “Plaza Sidewalks”). (App. at 1440-56) At their northern and southern ends, the Plaza Sidewalks adjoin and connect with the public sidewalks running east and west along the southern and northern edges of the Plaza. (App. at 1448-50) The Plaza Sidewalks are paved in reddish-gray granite pavers. (App. at 782, 1440-58) Differences in pavement are visible on many public sidewalks still owned and controlled by the City, including those in the direct vicinity of the Plaza. (App. at 1436)
The Plaza Sidewalks are a public thoroughfare, designed and built to allow pedestrians to traverse the Plaza between North Temple and South Temple along the right-of-way formerly occupied by the public street and sidewalks. (App. at 1464-67, 1770-72) They are wide enough to allow emergency vehicles to traverse the entire length of the Plaza along its western edge, as required by the Deed. (App. at 1440-50) Also as required by the deed, there are no physical barriers to pedestrian entry upon or movement along the Plaza Sidewalks. (App. at 1440-50) If one enters the Plaza Sidewalks from either North Temple or South Temple, one can proceed in a more or less straight line across the Plaza, without using the Plaza’s internal paths, to arrive once again on the adjoining public sidewalks. (App. at 1498-1502)
Whereas before it described the Plaza as a park-like gathering place where all will be welcome to attend a diverse selection of activities, public events and displays, the LDS church now calls the Plaza a “private garden,” “religious property,” a “religious plaza,” and advertises it as part of Temple Square (App. at 792, 1676-77, 1682-83) The church intends to use the Plaza for its own expressive activities, including spreading its religious, moral and political messages to those who visit the plaza, and thereby to gain converts. (App. at 1675-76, 1682-83)
VI. SUMMARY OF ARGUMENT
Notwithstanding the sale of Main Street and the creation of a landscaped plaza where once there was a paved street, the public thoroughfare sidewalks have been replaced. The new Plaza Sidewalks continue to function as public thoroughfares – not merely for access to the plaza or adjacent buildings, but for pedestrian access and passage, as an integral part of the downtown pedestrian grid. By the terms of the deed as well as by design, the Plaza Sidewalks are and must remain open at all times. They cannot be blocked with gates or fences. They are contiguous with and adjoining to public sidewalks on both ends. They are equivalent in form and function to the sidewalks they replace, as well as to other City-owned sidewalks. As such, the Plaza Sidewalks are a First Amendment public forum. See Point VII A.
The City and the church argued below that the Plaza Sidewalks, which function as a public thoroughfare and therefore would normally have to be regulated with neutral, carefully tailored regulations, can be regulated instead by discriminatory and vague restrictions because the City has transferred title to the Plaza Sidewalks to the church and declared that they are no longer a public forum. Supreme Court and lower court cases from at least 1946 to the present make clear, however, that regardless of the formalities of title thoroughfare sidewalks must be protected by the First Amendment. Accordingly, the sale and recitations of the parties cannot strip the Plaza Sidewalks of their protected status as a public forum. See Point VII B.
Although the trial court erred in concluding the Plaza Sidewalks are not a public forum, it found they are a nonpublic forum because the City reserved a public property right in the form of an easement. The trial court erred, however, in holding that the City’s one-sided restrictions on the use of the Plaza Sidewalks are reasonable, content-neutral regulations. The City expressly agreed to allow expressive activities to continue on the Plaza Sidewalks, but from only one viewpoint or perspective. LDS church representatives are free to ply the Plaza Sidewalks to share the church’s views on the religious and political issues of the day with passers-by (who may simply be using the Plaza Sidewalks as a thoroughfare pursuant to the public easement), but plaintiffs can be arrested for addressing the same subjects to the same passers-by in the same “public” space simply because their viewpoints differ from the LDS church’s. One can only conclude that the City prefers the church’s speech to the varieties of speech that otherwise characterize the marketplace of ideas, and sought to enshrine that preference in law. That violates the First Amendment’s prohibition of viewpoint discrimination, as well as the Fourteenth Amendment’s guarantee of equal protection. See Point VII C.
Not only did the City reserve a public property right, in the form of an easement; it also empowered the LDS church with unbridled discretion to interpret and enforce that right by installing the church as the gatekeeper over the public’s use and enjoyment of the easement. The City cannot delegate such fundamental, discretionary governmental authority to the church without violating the Establishment Clause. See Point VII D.
Finally, the district court erred in granting the City’s and the church’s motions for summary judgment dismissing all of appellants’ claims. Until the day the City Council approved the sale of Main Street, no one had any reason to disbelieve the City’s and the church’s representations that Main Street would be a “little bit of Paris,” a key part of the downtown business and commercial district, and a “park-like gathering place” where everyone would be welcome to enjoy the kinds of things people do in public parks. On April 13, 1999, that vision of a community park turned into one of a “private religious garden” devoted exclusively to religiously oriented speech and activities from a single, sectarian viewpoint. This “bait and switch” raises disputed issues of fact that preclude summary judgment against appellants. See Point VII E.
A. THE PLAZA SIDEWALKS ARE, BY DEED AND BY DESIGN, PEDESTRIAN THOROUGHFARES; THEREFORE, THEY ARE A PUBLIC FORUM, PROTECTED BY THE FIRST AMENDMENT.
Sidewalks “traditionally have been held open to the public for expressive activities and are clearly within those areas of public property that may be considered, generally without further inquiry, to be public forum property.” United States v. Grace, 461 U.S. 171, 179 (1983). Indeed, such sidewalks have been called the “archetype of a traditional public forum.” Frisby v. Schultz, 487 U.S. 474, 480 (1988). That is because “’time out of mind’ public streets and sidewalks have been used for assembly and debate, the hallmarks of a traditional public forum.” Id. (quoting Hague v. CIO, 307 U.S. 496, 515 (1939)).
In the most recent application of this venerable doctrine, the United States Court of Appeals for the Ninth Circuit held that a sidewalk constructed on private property is a public forum subject to the protections of the First Amendment because it replaced a public sidewalk and was required to remain open to pedestrian traffic. Venetian Casino Resort, L.L.C. v. Local Joint Exec. Bd. of Las Vegas, --- F.3d ---, 2001 WL 776702 (9th Cir., July 12, 2001). That court’s reasoning is straightforward, persuasive and fully dispositive of this virtually identical case.
The case arose out of the Venetian’s desire to build “a large hotel and casino complex on the former site of the Sands Casino on Las Vegas Boulevard South – ‘the Las Vegas Strip.’” Id. at *1.
To do so, the Venetian wished to use a portion of the right-of-way along the Strip where a public sidewalk then existed. Id. at *3. In exchange for its use of that property, the Venetian agreed to “construct and maintain on its property along Las Vegas Boulevard South a private sidewalk connecting to public sidewalks on either side of its property . . . for the purpose of providing unobstructed pedestrian access.” Id. at *4. There was no question that the replacement sidewalk was on the Venetian’s private property. However, because the Venetian was required to provide “unobstructed pedestrian access on this replacement sidewalk on the Venetian property,” a legal question arose as to “whether the sidewalk on private property that requires unobstructed pedestrian traffic is a public forum.” Id.
In analyzing that question, the court reviewed the following uncontested facts:
“the sidewalk along the Venetian’s frontage onto Las Vegas Boulevard historically has been a public forum” (id. at *6);
the new sidewalk “still performs the same role as a thoroughfare for pedestrian traffic along Las Vegas Boulevard that it performed before the construction of the Venetian” (id.);
the new sidewalk “is used ‘to facilitate pedestrian traffic in daily commercial life along the Las Vegas Strip generally,’ and not merely to provide access to the Venetian for its patrons” (id., quoting district court’s opinion, 45 F. Supp. 2d 1027, 1035 (D. Nev. 1999));
the new sidewalk “is the only means for pedestrians to travel north or south along the Venetian’s side of Las Vegas Boulevard” (id.);
“[a]lthough the paving and landscaping along the Venetian’s stretch of sidewalk are somewhat different, there are no barriers or other physical boundaries to indicate that the steady stream of pedestrians making their way up and down the Las Vegas strip that the sidewalk in front of the Venetian enjoys a different legal status than the public sidewalks to which it is seamlessly connected to the north and south” (id.);
provisions of the parties’ contract “require the Venetian to provide a sidewalk for general public use, and they deprive the Venetian of its private property right to block or otherwise impede public access to the sidewalk” (id. at *7); and
the arrangement provides “an advantage to the Venetian, in that it can beautify the sidewalk and select the material to cover the sidewalk so long as it does not interfere with the dedicated public use” (id. at *9).
Because the parties’ agreement provided for “unobstructed public use of the sidewalk,” the court found that “for purposes of public use it was a public sidewalk with the normal attributes of a public sidewalk.” Id. at *5. In a straightforward application of fundamental First Amendment principles, the court concluded: “As a ‘thoroughfare sidewalk,’ seamlessly connected to public sidewalks at either end and intended for general public use, the sidewalk in front of the Venetian is ‘the archetype of a traditional public forum.’” Id. at *10, quoting Frisby, 487 U.S. at 480.
In this case, the undisputed facts in the record below support every one of the same findings that underlie the Venetian court’s conclusion. Indeed, all this Court need do is substitute “the Main Street Plaza” or “the church,” as appropriate, for “the Venetian,” and substitute “Main Street” for “the Las Vegas Strip”:
Main Street and its sidewalks historically were a public forum;
the Plaza Sidewalks still perform the same role as a thoroughfare for pedestrian traffic along Main Street that that they performed before the construction of the Plaza;
the Plaza Sidewalks were designed and are used to facilitate pedestrian traffic in daily commercial life along Main Street generally, and not merely to provide access to the Plaza and the church’s adjacent amenities;
the Plaza Sidewalks are the only means for pedestrians to travel north or south along Main Street between North Temple and South Temple;
although the paving and landscaping along the Plaza Sidewalks are somewhat different than the adjacent public sidewalks, there are no barriers or other physical boundaries to indicate that the steady stream of pedestrians making their way up and down Main Street that the sidewalks are subject to a less protected legal status than the public sidewalks to which they seamlessly connect to the north and south;
provisions of the parties’ contract require the church to provide access and passage for general public use, and they deprive the church of its private property right to block or otherwise impede public access to the sidewalk; and
the arrangement provides an advantage to the church, in that it can beautify the sidewalks and select the material to cover the sidewalks so long as it does not interfere with the dedicated public use.
The same kinds of facts led to the same conclusion in Citizens To End Animal Suffering v. Faneuil Hall Marketplace, Inc., 745 F. Supp. 65 (D. Mass. 1990). There the City of Boston granted to a private corporation a ninety-nine year lease for the Faneuil Hall Marketplace, consisting of several buildings and the cobblestone lanes between and adjacent to them. Id. at 68 n.1. The city reserved an easement “for the public’s access and passage” over the lanes. Id. at 73. (4) The lanes were closed to vehicular traffic but remained part of the city’s pedestrian grid, available not only for access to the Marketplace but also for “pedestrians wholly uninterested in the Marketplace’s offerings [who] cross its lanes daily in travelling to the waterfront” and visiting adjacent public areas. Id. at 68, 70 and n.11. Indeed, the court observed that “the City’s overall purpose in leasing the premises to defendant was the rejuvenation of the downtown area, all for the benefit of the community” and to “revitalize the downtown area.” Id. at 73-74.
Based on these facts – all of which are present here – the court concluded that the public thoroughfares traversing the Marketplace were a First Amendment “public forum”:
“[T]he City reserved a public easement over the lanes. The lanes are used for access, for strolling about the Marketplace, and as a ‘historic pedestrian connection’ to the purely and traditionally public adjoining areas. These lanes thus resemble public sidewalks. Although sidewalks are not public fora per se, . . . the facts here establish that these lanes must be considered, at the least, as limited public fora.”
Id. at 75-76 (emphasis added, internal citations and quote omitted).
As the Ninth Circuit found with regard to the replacement sidewalk in Venetian, and as the Faneuil Hall court found with regard to the lanes across the Marketplace, the Plaza Sidewalks are in no sense similar to sidewalks that in rare and exceptional cases have been found not to constitute a public forum. Those cases carefully distinguish between sidewalks that are generally used by the public as a thoroughfare, and those with a more limited or exclusive function, such as providing solely a means of ingress and egress to buildings or facilities. (5) Although the Plaza Sidewalks serve as a means of ingress and egress to the Plaza and to the LDS church’s adjacent facilities, their design and function is not limited to that – nor can they be, because of the easement.
The district court reached a different conclusion in this case because it failed to consider the Plaza Sidewalks in terms of their form and function, and instead focused on the interior of the Plaza. There is no question that the interior of the Plaza – where the paved public street used to be – has substantially changed in form and function. But appellants sought access only to the Plaza Sidewalks, which cover roughly the area of the former Main Street sidewalks. In considering a public forum claim, the first task is to identify the relevant forum. See Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 800 (1985). The relevant forum is the property to which the speaker seeks access. See id. at 801 (“in defining the forum we have focused on the access sought by the speaker. When speakers seek general access to public property, the forum encompasses that property. . . . In cases in which limited access is sought, our cases have taken a more tailored approach to ascertaining the perimeters of a forum within the confines of the government property”) (internal citations omitted). The Plaza Sidewalks are the “relevant forum” for purposes of analyzing appellants’ forum claims.
If one focuses on the Plaza Sidewalks, rather than the Plaza as a whole, one cannot conclude that their objective physical character or use has been so fundamentally altered as to destroy their traditional public forum status. The only physical difference between the Plaza Sidewalks and the adjoining sidewalks, or the sidewalks on the former Main Street, is their material composition and slight variations in grade. No legal difference can possibly turn on such trivial cosmetic changes. Indeed, differences in pavement and atmosphere are visible on many public sidewalks still owned and controlled by the City, including those in the direct vicinity of the Plaza.
In terms of function, the Plaza Sidewalks continue to serve as pedestrian thoroughfares for people wholly uninterested in visiting the LDS church’s facilities. While they undoubtedly provide an additional means of access to Temple Square and the LDS church’s facilities (just as the sidewalk in Venetian provided access to the hotel and the lanes in Faneuil Hall provided access to the Marketplace), the church has not, and cannot under the Deed, shut off pedestrian access completely, or convert the former Main Street sidewalks into paths providing exclusively for ingress to and egress from the church’s facilities. To the contrary, the City insisted, and the church agreed, that as a condition of the closure and sale of Main Street, the Plaza would be “planned and improved so as to maintain, encourage and invite public use,” and created an easement to provide for public “access and passage” at “all times, both day and night.” Before its makeover, public use of Main Street included vehicular as well as pedestrian traffic. Since after the sale it was understood that Main Street would be permanently closed to vehicular traffic, the only public use that could possibly have been “maintained” is the historic use as a pedestrian thoroughfare. Because the Plaza Sidewalks have the form and function of public thoroughfares, they are subject to the same constitutional protection the Ninth Circuit and other courts have extended to “traditional public forums.”
B. TRADITIONAL PUBLIC FORUMS CANNOT BE STRIPPED OF THEIR PROTECTED STATUS AND SUBJECT TO UNCONSTITUTIONAL RESTRICTIONS BY TRANSFERRING TITLE TO A PRIVATE PARTY AND DECLARING THAT THEY ARE NO LONGER PUBLIC FORUMS.
Given that the Plaza Sidewalks are public thoroughfares, and thus fall within the settled rule that sidewalks are subject to the First Amendment protection, the next question is whether the City’s sale of the property to the church with the stated intent that it no longer be a public forum is sufficient to allow the imposition of restrictions that plainly do not pass constitutional muster. (6) That question is of some importance, because it goes to whether the government can strip traditional public forums of constitutional protection through privatization even though they retain an essential public function. Appellants submit that that the special constitutional status attaching to traditional public forums cannot and should not be so easily destroyed.
The Supreme Court and lower courts have consistently held that the formalities of legal title are irrelevant when determining the First Amendment status of a traditional public forum. “[W]herever the title of streets and parks may rest, they have immemorially been held in trust for the public.” Frisby, 487 U.S. at 480-81. Consistent with the distinction between limited access sidewalks and thoroughfare sidewalks discussed above, the courts make it clear that this follows from the way Americans traditionally use the forum, not from any particular private designation. Id. Frisby relied on Hague, where the Court explained:
“Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views . . . must not, in the guise of regulation, be denied.”
Hague, 307 U.S. at 515-516. This means that open thoroughfares may not be confined to some “non-public” purpose like walking in silence, even if the government so decrees. See Grace, 461 U.S. at 179-80.
This exception to the general rule that the owner of private property may exercise the full “bundle of rights” inherent in ownership – including the right to exclude and to regulate speech without respecting constitutional requirements – was first articulated in Marsh v. Alabama, 326 U.S. 501 (1946). There, a private company owned the paved street and sidewalk running along a series of company-owned storefronts. The company argued that the fact that it held title to the sidewalk gave it the absolute right to order the arrest of a Jehovah’s Witness who distributed leaflets on the sidewalk in violation of a posted notice prohibiting such distribution. The Court rejected the company’s argument:
“Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.”
Marsh, 326 U.S. at 506 (emphasis added).
Marsh thus stands for the proposition that the public function of even private property may bring it within the public forum doctrine. That proposition applies not only in “company towns”; it applies whenever a private owner agrees that his property can be used for a public function such as a thoroughfare for pedestrian access and passage:
“Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation."
Marsh, 326 U.S. at 506; see also Evans v. Newton, 382 U.S. 296, 302 (1966) (mere fact of private ownership was not enough to divest the park of its “public character”; the Fourteenth Amendment applied “regardless of who now has title under state law").
In addition to Marsh and Evans, a number of lower courts have concluded that constitutional guarantees apply to privately owned spaces that serve as public thoroughfares. Again, the most recent discussion is in Venetian:
“Property that is dedicated to public use is no longer truly private. Although the owner of the property retains title, by dedicating the property to public use, the owner has given over to the State or to the public generally ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property,’ the right to exclude others. . . . The private owner can no longer claim the authority to bar people from using the property because he or she disagrees with the content of their speech.”
Venetian, 2001 WL 776702 at *7 (emphasis added) (citations omitted). See also Thomason v. Jemigan, 770 F. Supp. 1195 (E.D. Mich.1991) (government cannot strip an area of its public forum status merely by vacating its right-of-way on private property); Jackson v. City of Markham, 773 F. Supp. 105 (N.D. Ill. 1991) (full spectrum of First Amendment rights applied to a private sidewalk despite the adjacent property owner’s claim that the sidewalk was privately owned).
The important constitutional principle that underlies these cases is that spaces that are open to the public and that serve an important public function must be protected as public forums, even if the government tries by deed or declaration to characterize them otherwise, lest the time-honored role of such spaces as the principal locus of the marketplace of ideas become a chimera. See International Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 698-99 (Kennedy, J., concurring) (arguing against rule that would give “the government authority to restrict speech by fiat”). In Freedom from Religion Foundation, Inc. v. City of Marshfield, 203 F.3d 487 (7th Cir. 2000), the court admitted that “there is no clear precedent on the matter whether private property can be considered a public forum,” but concluded the private property in that case was a public forum, based on three factors: 1) the historical association of the private property with a public forum; 2) the dedication of the property to public use; and 3) the physical location of the property in relation to the public forum. Id. at 494-95.
Those same common-sense factors dictating that private property dedicated to a public use is protected by the First Amendment are all present in this case. The Main Sidewalks share all the physical characteristics of the former sidewalks of Main Street – undisputedly a traditional public forum to which they bear an ineradicable historical association – and to the public sidewalks they adjoin. The City has guaranteed public access to the Plaza Sidewalks at all times, both day and night, unimpeded by any physical barriers. The Plaza Sidewalks thus form an integral part of the network of municipal sidewalks that pedestrians routinely use to walk up and down Main Street – and the only means of crossing between North Temple and South Temple on Main Street. There are no visible boundaries that would distinguish the Plaza Sidewalks from other public sidewalks. The church agreed to keep Main Street open, not only for its own benefit in creating a unified “church campus” and attracting visitors to Temple Square and the church’s other amenities, but also for the public benefit in creating “a funnel to the Crossroads and ZCMI Center shopping malls as well as the remainder of the downtown business district” and in helping Main Street, “which is the heart of the shopping area, to become the most pedestrian oriented street in Salt Lake City.” That public benefit is closely tied to the legal requirement and the factual reality that the Plaza Sidewalks remain open to the public for purposes other than ingress to or egress from the church’s amenities. Thus, like the private property at issue in Marsh, Evans, Venetian, Faneuil Hall, Marshfield and the other cases on which plaintiffs rely, the Plaza Sidewalks serve a public function pursuant to a public right, and therefore deserve constitutional protection.
C. EVEN IF THE MAIN STREET PLAZA SIDEWALKS ARE A NONPUBLIC FORUM, THE RESTRICTIONS TO WHICH THE CITY AGREED ARE UNREASONABLE AND DISCRIMINATORY, IN VIOLATION OF FREE SPEECH AND EQUAL PROTECTION.
Although the district court erred in holding that the Plaza Sidewalks are not a First Amendment public forum, it found “that the limited pedestrian easement is a governmentally owned property right that could be considered a nonpublic forum.” (Order at 27) Even in a nonpublic forum, restrictions on speech must be “reasonable in light of the purpose served by the forum” and “not an effort to suppress expression merely because public officials oppose the speaker’s view.” Hawkins, 170 F.3d at 1287; see also Arkansas Educ. Tele. Comm’n v. Forbes, 523 U.S. 666 (1998); Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788, 806 (1985). The district court erred in concluding that the restrictions to which the City agreed on the public’s use of a nonpublic forum are reasonable and non-discriminatory.
To properly understand appellants’ claims on this point, imagine the following scenario: Two Salt Lake City residents are walking along Main Street. Both live in the Avenues area of the City, near downtown, and are on their way home from work. Proceeding across the Plaza along the western sidewalk, each is eager to get home to her loved ones, and neither has an interest in visiting the LDS church’s attractions or lingering in the Plaza. Thus, neither is a business invitee of the church; both are using the Plaza Sidewalk “for pedestrian access and passage only.” One, known to church security as an employee of one of the church’s many downtown businesses, is wearing a button proclaiming, “Families Are Forever.” The other, also known to church security from lawful demonstrations in opposition to the church’s political position on same-sex marriage, is wearing a button proclaiming, “Hate Is Not A Family Value.”
Under the legal regime that the City imposed as part of the Main Street sale, both pedestrians have a right to make their way across the Plaza unless the LDS church, in its unbridled discretion, determines that they are engaged in “offensive” speech or conduct. That determination is not subject to any neutral or even fixed standards, but can be exercised solely on the basis of the viewpoints expressed by the pedestrians on the same subject, “Family.” Appellants do not dispute that, if these two pedestrians were within the walls of Temple Square, and thus on the LDS church’s property as invitees, the church would have every right to allow the first pedestrian to pass across Temple Square but to ask the second to take a detour on the public sidewalks. But to say in a wholly conclusory fashion that the same is true if the two are on the Plaza Sidewalks simply because title to the Plaza now rests with the LDS church is to ignore the fact that the two are not on purely private property, but on a public easement, and to beg the fundamental question of the limits of the government’s power regulate that nonpublic forum.
The district court’s conclusion on this point is tautological and elevates of form over substance. While there is no dispute that the easement creating the nonpublic forum is for “access and passage” only, as the above scenario illustrates “access and passage” is often, if not always, inextricably intertwined with expression. (7) Moreover, the district court erroneously focused on the fact that the easement’s proscriptions on “offensive” speech apply equally to everyone using the easement. This recalls Anatole France’s observation: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” (8) Obviously, the term “offensive” is not self-defining or capable of neutral application. The district court’s focus on technicalities only obscures the reality that people seeking to use the Main Street Plaza Sidewalks as a public thoroughfare can and will be prohibited from doing so if they happen to express a forbidden viewpoint. (9) That is anathema to the core principles underlying the First Amendment’s Free Speech Clause and the Fourteenth Amendment’s Equal Protection Clause, both fully applicable even in a nonpublic forum.
1. The Restrictions To Which The City Agreed Are Not Reasonable.
In ISKON v .Lee, the Court applied a reasonableness test to conclude that even though the internal passages of an airport terminal were not a public forum, airport officials could not ban the distribution of literature inside the terminal. 505 U.S. at 685 (O’Connor, J., concurring), 693 (Kennedy, J., concurring). Justice O’Connor, who provided the crucial fifth vote invalidating the regulation, summarized the relevant inquiry:
“’The reasonableness of the Government’s restriction [on speech in a nonpublic forum] must be assessed in light of the purpose of the forum and all the surrounding circumstances.’ Cornelius, supra, at 809. “‘”Consideration of a forum’s special attributes is relevant to the constitutionality of a regulation since the significance of the governmental interest must be assessed in light of the characteristic nature and function of the particular property involved.”’” Kokinda, supra, at 732, quoting Heffron v. International Soc. For Krishna Consciousness, Inc., 452 U.S. 640, 650-651. 2d. 298, 101 S.Ct. 2559 (1981).
“’We have said that a restriction on speech in a non-public forum is ‘reasonable’ when it is ‘consistent with the [government’s] legitimate interest in “preserving the property. . . for the use to which it is lawfully dedicated.”’” Perry, supra, at 50-51, quoting Postal Service v. Council of Greenburgh Civic Ass’ns., 453 U.S. 114, 129-130, 69 L.Ed. 2d 517, 101 S.Ct. 2676 (1981) (internal quotation marks omitted).
ISKON, 505 U.S. at 687.
Applying Justice O’Connor’s reasonableness test, the restrictions on the easement are plainly unreasonable. This is not a case, like ISKON v. Lee or Hawkins, where the government has imposed a blanket prohibition on certain types of expressive activities, or even a complete ban on all expressive activities, as incompatible with the nature and use of the property. To the contrary, the City agreed to permit, “without limitation,” the “distribution of literature,” the “erection of signs and displays,” and the “projection of music and spoken messages.” Therefore, the City cannot argue that any and all expressive activities are fundamentally incompatible with the nature and use of the property for access and passage, and that the restrictions are therefore reasonable.
Main Street anchors downtown Salt Lake City, and by all accounts the Main Street Plaza is designed and destined to become one of the city’s premier public gathering places. Appellants do not insist on the right to stage a parade or even conduct a large demonstration blocking the Plaza Sidewalks. They want the right to speak and assemble on the Sidewalks, interact with the public, distribute literature, gather signatures, and hold or carry banners. These less intrusive activities clearly are compatible with the use of public sidewalks generally, and with the types of activities the City agreed to allow on these very sidewalks, so long as they don’t unreasonably interfere with public access. The district court therefore erred in concluding that the restrictions to which the City agreed are reasonable. See Jews for Jesus v. MBTA, 984 F.2d 1319 (1st Cir. 1993) (invalidating ban on leafleting and collection of signatures in train station under reasonableness standard since conduct was consistent with purposes of the premises).
2. The Restrictions To Which The City Agreed Are Discriminatory.
Besides being unreasonable, the restrictions in this case are discriminatory. As noted above, while the government may restrict discussion in a nonpublic forum to certain subject matters, even in a nonpublic forum the government may not “regulate speech in ways that favor some viewpoints . . . at the expense of others.” Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993).
Under the City’s scheme, the LDS church is free to provide a forum for church-approved speakers and to stage special events attracting large crowds. Similarly, church-sponsored or approved displays or kiosks can be erected, with messages celebrating the church’s particular viewpoint. The church is permitted to distribute literature dealing with legislation as to which the church, in the exercise of its own First Amendment rights, has taken a public position. No one else, however, can distribute literature in the same location on the same subjects from a different viewpoint. In excluding certain perspectives on such important political and moral issues, the City has engaged in the same type of viewpoint discrimination that was struck down in Rosenberger v. University of Virginia, 515 U.S. 815, 831 (1995), and Lamb’s Chapel, 508 U.S. at 392-93.
In ACLU of Nevada v. City of Las Vegas, 13 F. Supp. 2d 1064 (D. Nev. 1998), the court denied the plaintiffs’ motion for a preliminary injunction to the extent it claimed that the “Fremont Street Experience” in downtown Las Vegas was a public forum protected by the First Amendment. Id. at 1078-79. Nevertheless, the court held that plaintiffs were likely to succeed on their separate equal protection challenge, on the ground that the City’s effort to ban certain expressive activity selectively was not rationally related to the City’s “legitimate interests in maintaining a safe and comfortable atmosphere in the Mall in order to compete with other commercial and entertainment venues by reducing litter, preventing harassment and intimidation of pedestrians, and restricting activities which interrupt pedestrian traffic flow and cause pedestrian congestion.” Id. at 1079.
Here, the Salt Lake City could have reserved a public easement for pedestrian access and passage and made it subject to certain reasonable, neutral regulations rationally related to legitimate interests in safety, access, prevention of litter, and so on. This it did not do. Instead, the City agreed to permit the “distribution of literature” by the church and other expressive activities by church representatives who are free to approach pedestrians and share a religious message. The City thus gave rise to an inescapable inference that it prefers the church’s speech to the free exchange of information that characterizes the marketplace of ideas. Such a bald preference constitutes not only viewpoint discrimination but also religious discrimination.
D. THE CITY’S DELEGATION OF AUTHORITY TO DECIDE WHO CAN USE THE EASEMENT ACROSS THE PLAZA VIOLATES THE ESTABLISHMENT CLAUSE.
Under the Deed, the function of interpreting and enforcing the restrictions on the public’s right of access and passage under the easement rests not with the City but with the LDS church. Contrary to the district court’s conclusion, this power goes well beyond the ordinary rights of a landowner to regulate the conduct of its invitees.
As one constitutional scholar has stated, deciding who can enjoy access to and use of a public thoroughfare is a traditional state function:
“[D]eciding to cross the street when a police officer says you may is not . . . a ‘public function’; but authoritatively deciding who is free to cross and who must stop is a ‘public function’ whether or not the person entrusted under state law to perform that function wears a police uniform and is paid a salary from state revenues or wears civilian garb and serves as a volunteer crossing guard.”
L. Tribe, American Constitutional Law § 18-5, at 1705 (2d ed. 1988).
The Faneuil Hall court observed, in terms fully applicable here:
“Indeed, the power to decide who can use a public easement goes beyond even that of a policeman. Unlike the policeman who merely executes decisions of policy, defendant here is actually making those policy decisions. Defendant’s role is thus more like that of a legislature, which is even more clearly an exclusive state function. The essential purpose of the easement here is to ensure public access to the Marketplace. The exercise of control over the public’s right to use the easement is subject to constitutional scrutiny, whether employed directly by the State or through delegation to a private party.”
745 F. Supp. at 72.
In an ordinary case the delegation of this vast, super-legislative power to a private party has the legal consequence of attributing that party’s conduct to the state and subjecting it to constitutional scrutiny under 42 U.S.C. § 1983. Faneuil Hall, 745 F. Supp. at 74. In this case, there is an additional, serious consequence. Here, the City delegated this vast power not just to any private party, but to a church. Such delegation of “a power ordinarily vested in agencies of government” to a religious institution violates the Establishment Clause, because it creates a “substantial breach” in the wall that separates church from state. Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 122-23 (1982).
In Grendel’s Den, the City of Boston adopted a regulating giving churches the power to prevent the issuance of liquor licenses for establishments within a 500-foot radius of the church, simply by objecting to the license application. The Court began its analysis by observing that the regulation conferred a power ordinarily vested in governmental agencies, substituting the unilateral and standardless power of the church for the reasoned decisionmaking of a public legislative body. Id. Then, applying the familiar Lemon test (Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1970)), the Court concluded the regulation violated the Establishment Clause.
The Court noted the regulation embraced the “valid secular legislative purposes” of protecting churches from “the ‘hurly-burly’ associated with liquor outlets”; however, those purposes could have been achieved by means short of the grant of an absolute veto power. Grendel’s Den, 459 U.S. at 123-24. Moreover, because the veto could be employed for “explicitly religious goals, for example, favoring liquor licenses for members of that congregation or adherents of that faith,” the regulation could “be seen as having a ‘primary’ and ‘principal’ effect of advancing religion.” Id. at 125-26. Finally, in terms of entanglement, the Court noted that “the core rationale underlying the Establishment Clause is preventing ‘a fusion of governmental and religious functions. . . . The Framers did not set up a system of government in which important, discretionary governmental powers would be delegated to or shared with religious institutions.” Id. at 126-27.
Proper analysis leads to the same conclusion here. (10) Let us assume that, as in Grendel’s Den, the vesting of discretion to control access to and use of a public easement might be seen as advancing some valid secular purpose. It is at least conceivable that reasonable regulations consistent with the nature and use of the Plaza could have been identified. Unfortunately, that possibility was never explored; instead, the City acquiesced in the church’s demands for absolute control. This raises questions about the legitimacy and necessity of any purported secular purpose for giving the church discretion.
Even assuming a valid secular purpose, however, the restrictions fail the two remaining prongs of the Lemon test. (11) First, as in Grendel’s Den, the church’s power here is “standardless, calling for no reasons, findings or reasoned conclusions” to support what could amount to a permanent banishment from the Plaza. The vague standards in the Deed allow the church to prohibit such things as “offensive” or “threatening” speech. The church’s discretionary regulatory power not only can but undoubtedly will “be employed for explicitly religious goals” – to ensure that only LDS-approved messages will be heard. This creates what the Supreme Court called “a significant symbolic [as well as actual] benefit to religion in the minds of some by reason of the power conferred.” Id. at 125-26.
The restrictions also enmesh the church in the processes of government. The City might have sought some accommodation to maintain not only public use of Main Street but also the appropriate relationship between the public, the church and the state. Instead, the City decided to “substitute[ ] the unilateral and absolute power of a church for the reasoned decisionmaking of a public legislative body acting on evidence and guided by standards, on issues with significant economic and political implications.” Grendel’s Den, 459 U.S. at 127. The church’s exercise of its discretion to prohibit certain members of the public from using the easement while engaging in its own expressive activities on the Main Street Plaza sidewalks can only increase “the danger of ‘[political] fragmentation and divisiveness along religious lines.’” See id.
The district court based its contrary conclusion in large part on another elevation of form over substance: instead of arresting “offensive” speakers itself, the church will merely order them off the public easement, and if they refuse to leave, the church will call the City police. (Order at 35) This ignores the fact that the church has unbridled discretion to determine whether someone is exceeding the scope of the easement by engaging in “offensive” expression, and therefore whether to summon the police and charge someone with “criminal trespass.” (12) Did the district court mean to suggest that it is then up to the police, or to the courts “if the police decline to move the person,” to decide if the person’s expression was in fact “offensive”? If so, what standards does the government use to make that determination? The district court’s reasoning is tautological unless one assumes access to the easement is subject to constitutional standards.
More seriously, the district court’s conclusion means that a City can constitutionally agree to allow any private property owner to apply discriminatory criteria in deciding whether to allow public access pursuant to a public easement across the owner’s property. Did the district court mean to suggest that it would be perfectly acceptable for the City to reserve an easement for public access and passage, but then empower the LDS church to prohibit blacks, for example, or Jews, from enjoying the easement? The law says no, and the district court erred to permit such a plainly invidious result. See Lombard v. Louisiana, 373 U.S. 267 (1963) (government cannot “put criminal sanctions behind racial discrimination in public places”).
E. THE DISTRICT COURT ERRED IN DISMISSING APPELLANTs’ BROADER ESTABLISHMENT CLAUSE, EQUAL PROTECTION AND STATE LAW CLAIMS.
Besides their “public forum” and “delegation” claims, appellants stated broader claims that go to the core of the Main Street sale. In dismissing appellants’ “public forum” claim, the district court relied heavily on this Court’s decision in Hawkins, and specifically on this Court’s reference to the following statement in Justice Kennedy’s concurring opinion in Lee: “In some sense the government always retains authority to close a public forum, by selling the property, changing its physical character, or changing its principal use.” Hawkins, 170 F.3d at 1287. Whatever the meaning and scope of Justice Kennedy’s dictum, it is subject to one clear limit: the government cannot transform a traditional public forum into “religious space.” But that is precisely what appellants claim Salt Lake City did in this case.
This case involves not just any property, but Main Street; not just any sale, but a sale to Utah’s predominant church; not just any changes, but changes that resulted in the transformation of a traditional public forum in the middle of downtown into what the church now describes as “religious space.” In their Complaint, appellants alleged that “without fully advising the public of the precise nature and effect of the transaction with the [church], the City intentionally joined with the [church] in a concerted action to create what would appear to be a public park but what would in fact be a restricted religious enclave, where plaintiffs and others will be ‘welcome’ so long as they do not engage in speech or conduct the [church] might deem ‘offensive.’” First Am. Cmplt. ¶ 17. Appellants further alleged that, as a result, the City has purported “to dedicate a park-like public gathering place to the exclusive control of a religious organization . . . , creat[ing] an unconstitutional blurring of the distinction between church property and public property [and] giving the indelible impression that the LDS Church occupies a privileged position in the community and that the City endorses the LDS Church and its messages. . . .” Id. ¶ 29.
Construing the facts supporting those allegations in a light most favorable to appellants, the picture that emerges is one of collusion between the City and the church to insert material changes in the key documents setting forth the terms and conditions of the proposed closure and sale of Main Street, and then to hide those material changes from the public. Just a few days before the transaction was to come before the City Council, the City immediately acquiesced, without any negotiation, in the church’s demands that a specific condition added by the Planning Commission be deleted and that one-sided, viewpoint-based restrictions be imposed on the public’s use of the property. Those changes clearly were to the benefit of the church, and to the detriment of the appellants and other religious and political minorities, and they clearly were material to the transaction, but they were never subjected to regulatory or public scrutiny until the months-long “public process” was virtually over.
Commentators and this Court have noted that Establishment Clause jurisprudence is not a model of clarity. See, e.g., Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L. Rev. 115 (1992); Bauchman v. West High School, 132 F.3d 542 (10th Cir. 1997), cert. denied, 524 U.S. 953 (1998). At a minimum, however, the Establishment Clause prohibits the government’s conditioning a public benefit on a religious test. See, e.g., Sherbert v. Verner, 374 U.S. 398, 403 (1963) (denial of unemployment compensation amounted to a “fine” for adhering to religious convictions); Bradfield v. Roberts, 175 U.S. 291, 298 (1899) (religious affiliation of Catholic hospital “wholly immaterial” to its right to receive government funds). Yet that is precisely the effect of the City’s agreement in this case, because it conditions access to and passage across the Main Street Plaza on not engaging in speech or conduct the LDS church might deem “offensive.” The editorial cartoon attached at Addendum “D” illustrates in a light-hearted way the reality Salt Lake residents and visitors now face: admittance to a public thoroughfare requires compliance with certain (unknown and subjective) religious standards.
The Establishment Clause also prohibits “endorsement.” As Justice O’Connor has said: “Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring). The “endorsement test” focuses on the impact of government action on the religious minority. See McConnell, supra, at 147-48. (13) The “layout” and “location” of the Main Street Plaza, the religious imagery explicitly on display there, the coterminous public easement, and the City’s installation of the church as gatekeeper raise serious questions about endorsement. See Marshfield, 203 F.3d at 493-95 (although sale of property was valid, given the layout and location of the property, the presence of a sectarian religious message reasonably may be understood to constitute a public endorsement of religion). Moreover, the LDS church has exclusive use of the Plaza to promulgate its message from this exceptionally “preferential location” in the heart of downtown Salt Lake City; at the same time, “citizens [such as appellants] who wish to endorse other religions or sects on ‘equal terms’ would find it exceedingly difficult to erect an object of equal expressive power or to maintain it on government property.” Id. at 496. The City could not have sent a stronger message to nonadherents “that they are outsiders, not full members of the political community.”
Finally, and perhaps most fundamentally, the Establishment Clause represents our collective aspiration toward the creation of a public sphere where religious pluralism, rather than religious triumphalism, is on display. See id. A “pluralistic approach would not ask whether the purpose or effect of the challenged action is to ‘advance religion,’ but whether it is to foster religious uniformity or otherwise distort the process of reaching and practicing religious convictions.” Id. at 175. In this regard, the church’s concept of the Main Street Plaza as a “funnel” to downtown Salt Lake City is quite revealing. Millions of pedestrians will annually pass from public sidewalks through that “funnel.” Their right to do so is protected by a public easement. As they do so, they may encounter persons bearing religious, moral and even political messages – but only those promulgated or approved by the LDS church. If they themselves seek to share (or are deemed to represent) a different message, they will be denied access and passage. Such an arrangement can have no other effect than to “foster religious uniformity or otherwise distort the process of reaching and practicing religious convictions.”
These issues raised by appellants’ broader claims are legally complex and fact-intensive. The City and the church convinced the district court to forgo fact-intensive scrutiny of the extraordinary circumstances surrounding the sale of Main Street and the imposition of one-sided restrictions on the public’s right of access and passage. (The court concluded the facts are “irrelevant” and “immaterial.” Order at 8) Scrutiny of those facts and circumstances, construed in a light most favorable to appellants, makes clear that a reasonable fact-finder could conclude that the City acquiesced in the one-sided restrictions because it wanted to be able to impose LDS church standards (in order, for example, to maintain an “acceptable” image during the upcoming Winter Olympics), but knew it could not do so directly. Such collusion, if proven at trial, would constitute a clear example the “local embrace of a particular religious sect.” See Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 400 (1993) (Scalia, J., dissenting); see also McConnell, supra, at 193 (government’s conduct in connection with display of religious symbols may provide “a basis for inferring that the choice of symbols was a deliberate attempt to use government influence to promote a particular religious position”). The courts have an obligation to bring to bear strict scrutiny on such governmental action. The City and the church do not want any scrutiny, and the district court erred in allowing them to continue to avoid it. Appellants are entitled to their day in court on these claims.
Finally, the district court erred in dismissing appellants’ state law claims, instead of declining to exercise jurisdiction over those claims. This Court’s “general practice” is that “when federal claims are resolved prior to trial, the district court should usually decline to exercise jurisdiction over pendent state law claims and allow the plaintiff to pursue them in state court.” Snyder v. Murray City Corp., 124 F.3d 1349, 1354-55 (10th Cir. 1997). It is especially important to follow that practice where, as here, the state supreme court has said “that it would not follow federal constitutional models in interpreting the Religion Clauses of the Utah Constitution.” Id. (reversing the district court’s dismissal with prejudice of the plaintiff’s pendent state law claims and citing the Utah Supreme Court’s ruling in Society of Separationists v. Whitehead, 870 P.2d 916, 930, 931 n.36 (Utah 1993)).
For the foregoing reasons, appellants respectfully request that this Court reverse the district court’s Order, grant appellants’ motion for partial summary judgment, and remand the case for trial on appellants’ remaining claims.
DATED this 13th day of August, 2001.
Stephen C. Clark
ACLU of Utah
Attorney for Appellants
IX. ORAL ARGUMENT REQUESTED
Appellants request that the Court set this matter for oral argument because of the important and novel constitutional questions presented.
X. CERTIFICATE OF COMPLIANCE WITH RULE 32(a)(7)(B)
I hereby certify that the foregoing brief complies with the type-volume limitation of Rule 32(a)(7)(B) of the Federal Rules of Appellate Procedure. I make this certification in reliance on the word count provided by the word count tool of the word processing system on which this brief was prepared (Microsoft Word), which indicated a total of 13,628 words in Section I through VIII of this brief.
Stephen C. Clark
Attorney for Appellants
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 13TH day of August 2001, two (2) true and correct copies of APPELLANTS’ BRIEF, and one (1) copy of APPENDIX TO APPELLANTS’ BRIEF, were HAND DELIVERED to:
ROGER F. CUTLER
Salt Lake City Attorne
451 South State Street, Suite 505A
Salt Lake City, Utah 84111
Attorney for Defendant/Appellee
VON G. KEETCH
Kirton & McConkie
1800 Eagle Gate Tower
60 East South Temple
Salt Lake City, UT 84145-0120
Attorney for Intervenor/Appellee
Stephen C. Calrk
1. The block at issue in this litigation will be referred to as “Main Street.” Intervenor Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints will be referred to as the “LDS church.”
2. Utah Code Ann. § 10-9-305(2) provides in part: “Before . . . selling or leasing any street or other public way, ground place, property, or structure, the legislative body shall submit the proposal to the planning commission for its review and recommendations.”
3. Color photographs of the property at issue appear at pages 1352-77 and 1438-66. Page 1436 is a placeholder for a videotape, labeled Exhibit A, that was an exhibit the Affidavit of Robert Bauer filed in support of Plaintiffs’ Motion for Partial Summary Judgment. Page 1835 is a placeholder for a videotape, labeled “Church Plaza Legal Video,” that was an exhibit to the Affidavit of Robert Starling filed in connection with intervenor’s opposition to Plaintiffs’ Motion for Partial Summary Judgment. Copies of both videotapes have been provided with this Appendix. The various features discussed below are visible in both videos.
4. The easement provided: “The City hereby reserves unto itself . . . a perpetual, non-exclusive easement, for the benefit of and use by the general public, for reasonable, peaceful and orderly pedestrian access and passage . . . over and upon the surface of such portions of former North Market Street, former South Market Street, [etc.].” Faneuil Hall, 745 F. Supp. at 70 n.10.
5. See, e.g., United States v. Kokinda, 497 U.S. 720, 727-28 (1990) (Court distinguished between sidewalks used for limited purposes, which are not a public forum, and those used to “facilitate the daily commerce and life of the neighborhood or city,” which are a quintessential public forum: “The municipal sidewalk that runs parallel to the road in this case is a public passageway. The Postal Service’s sidewalk is not such a thoroughfare. Rather, it leads only from the parking area to the front door of the post office.”); International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 675-76 (1992) (upholding regulation permitting certain expressive activities on sidewalks outside airport terminals, but prohibiting such activities with terminals, on ground that internal walkways within airports have not “time out of mind” been open to expressive activity, nor is their purpose to serve as thoroughfares or to facilitate expressive activities); Hawkins v. City and County of Denver, 170 F.3d 1281, 1287 (10th Cir.), cert. denied, 528 U.S. 871 (1999) (“The Galleria does not qualify as a traditional public forum, for it is not . . . analogous to a public right of way or thoroughfare. The Galleria does not form part of Denver’s automotive, bicycle or pedestrian grid, for it is closed to vehicles, and pedestrians do not generally use it as a throughway to another destination. Rather, the Galleria’s function is simply to permit ingress to and egress from the DPAC’s various complexes.”); Chicago ACORN v. Metropolitan Pier Exhibition Auth., 150 F.3d 695, 702 (7th Cir. 1998) (“The sidewalks are not through-routes; they only lead to the pier facilities themselves. Rather than being part of the city’s automotive, pedestrian or bicyclist’s transportation grid, the sidewalks on the pier and the service street on its north side are internal to the pier, like the sidewalks, street and parking lots in Disney World.”).
6. The City and the church both conceded that the restrictions in the Deed are not regulations of the type that the City could constitutionally enforce in a traditional public forum. (App. at 1678, 1691)
7. See Cohen v. California, 403 U.S. 15 (1971) (defendant charged with “disturbing the peace” for wearing “offensive” jacket in public courthouse; Supreme Court recognizes expressive content of conduct).
8. The Harper Book of Quotations 247 (Robert I. Fitzhenry, ed., 3d ed. 1993).
9. Indeed, within weeks after the district court’s decision, it was reported that someone was prohibited from using the public easement because he was wearing a t-shirt the church considered “offensive.” See Addendum “D”.
10. The district court reached the opposite conclusion by misconstruing plaintiffs’ claim. Plaintiffs’ motion on their Establishment Clause claim focused on the delegation of the “gatekeeper” function to the standardless discretion of the church. The district court’s analysis focused instead on the sale of the property. See, e.g., Order at 38 (issue is whether “the City’s acceptance of a full market value price for the surface rights to the Property had the principal or primary effect of advancing religion”).
11. The district court speculated that appellants “appear to argue that [Grendel’s Den] trumps the Lemon test. (Order at 34) Appellants did not make any such argument. Grendel’s Den represents a closely analogous application of the notoriously difficult Lemon test, and therefore, in appellants’ view, a helpful analytical template.
12. Under Utah law, a person is guilty of “criminal trespass” if, “knowing his entry or presence is unlawful, he enters or remains on property as to which notice against entering is given by personal communication to the actor by the owner or someone with apparent authority to act for the owner.” Utah Code Ann. § 76-2-206 (2)(b)(i).
13. Whatever the merits of the “endorsement test,” the district court seemed to embrace the opposite test in this case: if a particular religion is widely known to be predominant, the government is free to endorse it, because no one will likely view it as advancing that religion. (Order at 38) That conclusion is illogical and dangerous, because it threatens to perpetuate “[t]he great evil against which the Religion Clauses are directed” – “government-induced homogeneity.” McConnell, supra, at 168-69.