home > legal work > legal advocacy ACLU Outlines the Legal Problems with the Main Street Reservation of Easement May 26, 1999 Hand Delivered Roger F. Cutler, Esq. City Attorney Salt Lake City Corporation 451 South State Street Salt Lake City, Utah 84111 Re: Salt Lake City Ordinance No. 28 of 1999 Dear Mr. Cutler: Thank you for your letter of May 17, 1999. I write in an effort to continue the dialogue on what I hope you and the leaders of our city now recognize as a significant legal and public policy matter. The ACLU appreciates your effort to clarify the factual background of this transaction. One unfortunate aspect of the transaction is the less than transparent fashion in which it was developed and presented to the public. Your letter sheds some light on the subject; we can only hope the City will shed additional light and disclose the process by which it agreed to sell not only the street but also the public’s constitutional rights. In any event, for present purposes I accept your representation that "the City Council knew, understood and acquiesced in the terms of the limited public easement," and I will attempt to present the analysis underlying the ACLU’s conclusion that the City Council thereby violated the United States Constitution. Allow me first to address a couple of your factual assertions, hoping to correct some misimpressions as to what is and what is not at issue here. First and foremost, the City’s authority to close or sell a public street, generally or in this specific instance, is not at issue. For that reason, much of your discussion of the factual background of the transaction (and your attached list of prior closures and sales) is irrelevant and immaterial. Similarly, the value the City received for this property is not at issue. Indeed, the City’s repeatedly emphasizing the money received is deeply disconcerting, since it suggests the City believes it can sell the public’s constitutional rights to the highest bidder. It is, of course, impossible to place a monetary value on those rights. Let us therefore focus on relevant, material facts and not attempt to reduce the discussion to one of dollars and cents. As a point of departure, I believe we both agree that, at least until it was sold to the LDS Church, this block of Main Street was a traditional public forum, as defined by Supreme Court jurisprudence.1 I believe we also agree (although you skirt the issue) that the restrictions to which the City agreed would never be upheld as constitutional regulations of a traditional public forum if directly imposed by the City on public property. Besides being unconstitutionally vague, the restrictions are obviously content-based, and are neither "necessary to serve a compelling state interest" nor "narrowly drawn to achieve that end," as required by Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983), and progeny.2 The principal issue is therefore whether the property continues, notwithstanding the sale, to have a public nature such that the private landowner is essentially engaged in state action, and therefore subject to constitutional constraints, to the extent it purports to restrict the public’s right of access.3 As you correctly observe, any consideration of this issue "would necessarily be based upon the particular facts involved." As I read the case law, however, very few if any of the facts you emphasize in your letter are relevant to that inquiry. In addition to the irrelevant and immaterial facts discussed above, you seem to place principal reliance on the fact that the Reservation of Easement itself contains a recitation that it shall not "be deemed to create or constitute a public forum, limited or otherwise, on the property." I have not seen a single case, nor do you cite to any, where this type of recitation is virtually dispositive, as you suggest. To the contrary, the cases I have seen routinely ignore such recitations. See, e.g., Venetian Casino Resort, L.L.C. v. Local Joint Executive Board of Las Vegas, 1999 U.S. Dist. LEXIS 6235 (D. Nev., April 27, 1999) (agreement between government and private buyer expressly granted the buyer "full rights inherent to the ownership of private property to the full extent permitted by the Fifth and Fourteenth Amendment[s] to the United States Constitution," and further asserted that government was not taking any state action as to the redeveloped property; nevertheless, court had no problem finding, based on the actual facts, that the public continued to enjoy constitutional protections on the property). It would be surprising if courts were to do otherwise. The property either continues or does not continue to partake of a public nature, and the buyer either engages in or does not engage in a traditional state function to the extent it seeks to restrict access to the property – regardless of the self-serving recitations of the parties. To hold otherwise would be to give the government the ability to override the Constitution by simple declarative fiat. Rather than basing their decisions on the kinds of irrelevant, immaterial and constitutionally offensive facts you emphasize, courts addressing this issue tend to focus on such things as the historic nature and use of the property; the degree to which that historic use and nature are changed by the sale and redevelopment of the property; the degree to which the redeveloped property is physically set off and distinguished from the surrounding public property; the nature and extent of continued public access; and whether the government specifically reserves an easement for public access. Here, as discussed above, there should be no dispute that this central block of Main Street always has been a traditional public forum. As Professor Epperson stated at the April 13, 1999 public hearing on this matter, the City’s founders considered, and rejected, a plan to include this particular property in a large, 40-acre church "campus." From that time forward, including during the construction of the LDS Temple, this block of Main Street has been a public thoroughfare, and as such has borne substantial traffic in ideas as well as in pedestrians and vehicles. As I understand it, that fundamental characteristic of this block has now been changed only to the extent that vehicular traffic will no longer be allowed; the City vigorously, and properly (in the ACLU’s view), insisted that the block remain open as a pedestrian thoroughfare. While it will now feature certain improvements, it will still serve as an important conduit in the pedestrian commerce of our City. Indeed, the City specifically prohibited the erection of "any perimeter fences or gates on the Property along the North Temple and South Temple rights of way," thus ensuring that pedestrians will be unencumbered in their passage from the contiguous public streets and sidewalks.4 And, of course, the City also insisted that the property continue to be "available for such pedestrian access and passage at all times, both day and night." Given the above facts, the property here is indistinguishable from the Faneuil Hall marketplace in Boston (see Citizens to End Animal Suffering and Exploitation, Inc. v. Faneuil Hall Marketplace, Inc., 745 F. Supp. 65 (D. Mass. 1990); the sidewalks surrounding the Colorado Rockies baseball stadium (see Lewis v. Colorado Rockies Baseball Club, Ltd., 941 P.2d 266 (Col. 1997); and the sidewalk in front of the new Venetian Casino in Las Vegas (see Venetian Casino Resort, supra) – each of which the courts found to be subject to constitutional protections. On the other hand, it is entirely distinguishable from public passageways within private shopping centers or public airports, or public sidewalks whose only purpose is to provide access to public buildings – the type of property involved in each of the cases on which the City apparently, but mistakenly, relies. Accordingly, the ACLU is confident that the courts, if presented with the issue, will conclude that to the extent the new owner seeks to restrict the public’s right of access to this block of Main Street it must do so subject to constitutional protections, and that the City has acted unconstitutionally to the extent it has agreed otherwise. At your invitation, I also wish to amplify the analysis underlying what I believe to be a separate, but equally egregious, constitutional violation inherent in the transaction. That violation arises because the function of enforcing the restrictions on the public’s right of access and passage – deciding who will be allowed to remain and who will be arrested for criminal trespass – rests not with the City but with the LDS Church. The Supreme Court has held that the delegation of "a power ordinarily vested in agencies of government" to a religious institution creates a "substantial[] breach" in the wall that separates the church from the state. See Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 122-23 (1982). As in Grendel’s Den, the LDS Church’s power here is "standardless, calling for no reasons, findings or reasoned conclusions" to support what could amount to a permanent banishment from this property; moreover, that power not only could but undoubtedly will "be employed for explicitly religious goals" – to ensure that only LDS-approved messages will be heard. Id. at 125. Without question 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 Reservation of Easement "thus enmeshes churches in the processes of government and creates the danger of ‘[political] fragmentation and divisiveness along religious lines,’" see id. at 127 – an unfortunate consequence that has already manifested itself in our community.5 Finally, the Reservation of Easement also violates the Equal Protection Clause. The Reservation of Easement purports to prohibit the public generally from engaging in otherwise lawful activities including, among other things, the distribution of literature and the promulgation of "spoken messages." At the same time, it purports to allow one specific segment of the public – the LDS Church and its representatives – to engage in that very conduct. Assume, for purposes of argument, that two members of the public – one a member of the LDS church and one a Jehovah’s Witness – are present on the property pursuant to the same public right of access guaranteed by the Reservation of Easement. The restrictions virtually ensure that these two people will be treated very differently based solely on the content of the literature they seek to distribute or the message they seek to convey. Even if the property is somehow found not to constitute a public forum subject to full First Amendment protection, the disparate treatment of the two hypothetical easement users must be rationally related to a legitimate governmental purpose. Here, as in an analogous case successfully litigated by the ACLU, no such rational relationship exists. See ACLU of Nevada v. City of Las Vegas, 13 F. Supp. 2d 1064, 1078-79 (D. Nev. 1999). Mr. Cutler, the City obviously must decide how best to address these difficult issues; they will not go away by themselves, and the ACLU will continue to press them by whatever means necessary. Your acknowledgment that judicial consideration of the issues raised in any well-pleaded complaint would necessarily be based on the unique facts tells me that you understand, correctly, that a motion to dismiss by the City would not be granted, and the City would face expensive, time-consuming discovery aimed at supporting a motion for summary judgment if this matter cannot be resolved out of court. I would urge you to keep that in mind and to so advise your clients before disregarding the ACLU’s serious concerns about the City’s conduct. I am willing to sit down with you and Mr. Mascaro at a mutually convenient time to discuss the issues as well as the City’s and the LDS Church’s interests and concerns. Our collective goal should be to see whether a set of reasonable, constitutionally permissible, neutral regulations can be identified. We at the ACLU sincerely believe that would be the best way to resolve this situation, and we sincerely hope we will not be forced to resort instead to litigation. I look forward to your favorable response to this initiative. Very truly yours, Stephen C. Clark cc: Mayor Deedee Corradini Salt Lake City Council Mark Mascaro, Esq. Read our May 5, 1999 letter that we sent on this issue. Endnotes: 1. You assert, in passing, that "this property has seldom been used for parades, protests, or any other free speech activities." I do not believe this is a correct factual statement, nor am I sure what point you are trying to make, but in any event I do not believe you intend to argue that this block of Main Street never was a traditional public forum. 2. Because we are dealing here with a content-based restriction, the availability of what you call "alternate free speech forums" is likewise irrelevant. See Perry, 460 U.S. at 37. More importantly, your reference to the loss of this block of Main Street as a "de minimis deduction" from the public’s "inventory" of First Amendment public fora is another example of an attitude that I sincerely hope does not reflect the City administration’s true perception of the value of the public’s constitutional rights. 3. We agree that the Constitution does not generally apply to purely private conduct. See Hudgens v. N.L.R.B., 424 U.S. 507 (1976). There are, however, exceptions to this principle. One occurs where a private actor is performing a function that has traditionally been exclusively performed by the state. See Flagg Bros. v. Brooks, 436 U.S. 149, 156-59 (1978). For example, in Marsh v. Alabama, 326 U.S. 501 (1946), a private company owned an entire town, performing all of the usual municipal functions and controlling all the buildings and sidewalks. Id. at 502-03. The Court nevertheless held the private owner to constitutional standards. Id. at 508. Thus, to the extent you contend that the transfer of this property from public to private hands automatically terminates the public’s constitutional rights, that is simply incorrect, whether or not the City reserved an easement. The fact that the City reserved an easement for public access only bolsters the case for constitutional protection. 4. Incidentally, this important restriction belies the City’s argument that this block of Main Street is now purely private property with which the landowner can do whatever it wishes. Indeed, it is ironic at best that the City would prohibit physical walls and fences but allow walls and fences around the public’s constitutional rights. 5. I will let pass your gratuitous personal observations, except to note that given the restrictions and the manner in which they were developed (secretly), presented (as fait d’accompli) and approved (along religious lines), one might reasonably argue that it is the City Administration that is guilty of what you call "religious bigotry."

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