425 F.3d 1249 (10th Cir. 2005), 04-4113, Utah Gospel Mission v. Salt Lake City Corp.

Docket Nº:04-4113.
Citation:425 F.3d 1249
Party Name:UTAH GOSPEL MISSION; First Unitarian Church of Salt Lake City; Utah National Organization for Women; Lee J. Siegel, Plaintiffs-Appellants, v. SALT LAKE CITY CORPORATION, a municipal corporation; Ross C. "Rocky" Anderson, Mayor of Salt Lake City, in his official capacity; Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Da
Case Date:October 03, 2005
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1249

425 F.3d 1249 (10th Cir. 2005)

UTAH GOSPEL MISSION; First Unitarian Church of Salt Lake City; Utah National Organization for Women; Lee J. Siegel, Plaintiffs-Appellants,

v.

SALT LAKE CITY CORPORATION, a municipal corporation; Ross C. "Rocky" Anderson, Mayor of Salt Lake City, in his official capacity; Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, Defendants-Appellees.

Sutherland Institute, Utah Taxpayers Association, Utah Association of Realtors; The Association of Christian Schools International, Christian and Missionary Alliance; Colorado Catholic Conference; Community of Christ; Ethics & Religious Liberty Commission of the Southern Baptist Convention; Evangelical Lutheran Church in America; First Church of Christ, Scientist; General Conference of Seventh-Day Adventists; General Council on Finance and Administration of the United Methodist Church; International Church of the Foursquare Gospel; Islamic Society of Colorado Springs; National Association of Evangelicals; National Council of the Churches of Christ in the USA; Rocky Mountain District of the Desert-Mountain Conference of the Fifth Episcopal District of the African Methodist Episcopal Church Worldwide; The Net-Churches Serving Together; International Municipal Association; National League of Cities; National Association of Counties; U.S. Conference of Mayors, Amici Curiae.

No. 04-4113.

United States Court of Appeals, Tenth Circuit.

Oct. 3, 2005

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, D.C. No. 03-CV-688-DAK

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[Copyrighted Material Omitted]

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Mark J. Lopez, (Sharon McGowan, American Civil Liberties Union Foundation, Inc. and Margaret Plane, American Civil Liberties Union of Utah Foundation, Inc., Salt Lake City, Utah, on the brief), New York, New York, for Plaintiffs -Appellants.

Steven W. Allred (and Boyd A. Ferguson, Assistant City Attorney, on the brief), Salt Lake City, Utah, for Defendants - Appellees.

Alan L. Sullivan and James D. Gardner, Snell & Wilmer, L.L.P. and Von G. Keetch

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and Alexander Dushku, Kirton & McConkie, on the brief, Salt Lake City, Utah, for Defendant-Appellee Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints.

L. Martin Nussbaum and Eric V. Hall, Rothgerber, Johnson & Lyons, L.L.P., Colorado Springs, Colorado, for Association of Christian Schools International, Christian and Missionary Alliance, Colorado Catholic Conference, Community of Christ, Ethics and Religious Liberty Commission of the Southern Baptist Convention, Evangelical Lutheran Church in America, First Church of Christ Scientist, General Conference of Seventh-day Adventists, General Council on Finance and Administration of the United Methodist Church, International Church of the Foursquare Gospel, Islamic Society of Colorado Springs, National Association of Evangelicals, National Council of the Churches of Christ in the USA, Rocky Mountain District of the Desert-Mountain Conference of the Fifth Episcopal District of the African Methodist Episcopal Church Worldwide, and Net-Churches Serving Together, as Amici Curiae.

Maxwell A. Miller, Parsons, Behle & Latimer, Salt Lake City, Utah, for Sutherland Institute, the Utah Taxpayers Association, and the Utah Association of Realtors, as Amici Curiae.

David Parkhurst, National League of Cities, Gene C. Schaerr and Ryan D. Nelson, Sidley, Austin, Brown & Wood, L.L.P, and Henry W. Underhill, Jr. and Lani L. Williams, International Municipal Lawyers Association, Washington, D.C., for National League of Cities, International Municipal Lawyers Association, National Association of Counties, and U.S. Conference of Mayors, as Amici Curiae.

Before KELLY, BRISCOE, and LUCERO, Circuit Judges.

KELLY, Circuit Judge.

Plaintiffs-Appellants Utah Gospel Mission, First Unitarian Church of Salt Lake City, Utah National Organization for Women, and Lee J. Seigel appeal the district court's denial of a preliminary injunction and grant of the motion for dismissal for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) made by Defendants-Appellees Salt Lake City Corporation, Ross C. Anderson, and Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

Background

In 1999, Salt Lake City (the "City") sold a block-long section of Main Street to Appellee Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints (the "LDS Church"). The City allowed public expression on Main Street before it was sold. Main Street was sold to enable the Church to build a Plaza, which the City hoped would promote downtown pedestrian traffic and stimulate business. The Plaza's objective attributes and primary purpose are different from the former Main Street. For example, the walking surface differs from that of an ordinary sidewalk or street, the entrances are marked by large planters, waterfalls, and stone signs, and the Plaza's stated purpose is to act as an ecclesiastical park. Utah Gospel Mission v. Salt Lake City Corp., 316 F.Supp.2d 1201, 1207-08 (D. Utah. 2004). The City's deed reserved an easement for public access and passage, but provided that the LDS Church could prohibit expressive conduct on the property. The property was valued at $8.124 million without reduction for the value of the easement, and the Church paid the entire amount with the easement. Id. at

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1238 n.44. The Church prohibited soliciting, begging, demonstrations, protests, leafleting, and other activities perceived as disruptive. After the Plaza was built, a group of plaintiffs sued, claiming that the City's access and passage easement constituted a public forum. We agreed, holding that the easement was a public forum upon which content-based restrictions on speech could not be enforced. First Unitarian Church of Salt Lake City v. Salt Lake City Corp., 308 F.3d 1114, 1132 (10th Cir. 2002).

Following First Unitarian Church, the City sold the easement, valued at approximately $500,000, in return for 2.17 acres of land in a low income neighborhood and a $5 million recreation center to be built on that land. The settlement agreement and amended deed specifically stated: "No Right of Public Access - It is the intent of the Parties to eliminate any right of public access or passage enforceable by the City or by members of the public in relation to the Main Street Plaza Property." Utah Gospel Mission, 316 F.Supp.2d at 1231. However, the City retained a right of reentry that could be exercised if the Church failed to maintain the Plaza as a "landscaped space." Additionally, the City retained certain utility easements allowing pipes and electrical conduits to pass under the Plaza.

On August 7, 2003, another group of plaintiffs sued the City and the LDS Church, claiming (1) that the Plaza remains a public forum despite the sale of the access and passage easement, and (2) that the sale of the easement to the Church violated the Establishment Clause. Plaintiffs filed a motion for preliminary injunction to prevent the Church from restricting free speech activities on the Plaza on November 7, 2003. The Church then moved to dismiss the complaint. On May 3, 2004, the district court denied Plaintiffs' motion for preliminary injunction and granted the Church's motion to dismiss, holding that (1) the Plaza is now entirely privately owned and "thus beyond the reach of the First Amendment," (2) the secular purposes supporting the easement were "both obvious and numerous," and (3) the sale of the easement, as a matter of law, did not advance or endorse religion because the sale was in exchange for adequate consideration. Utah Gospel Mission, 316 F.Supp.2d at 1224, 1238, 1239. Plaintiffs filed timely notice of appeal.

Discussion

We review a dismissal under Fed.R.Civ.P. 12(b)(6) de novo. Summum v. Callaghan, 130 F.3d 906, 913 (10th Cir. 1997). Accordingly, we "must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff." Id. (internal quotations and citations omitted). The court will uphold a Rule 12(b)(6) dismissal "only when it appears that the plaintiff can prove no set of facts in support of the claims that would entitle him to relief." Id. (internal quotations and citations omitted).

The district court relied upon materials outside the complaint in resolving the motion to dismiss, including an amended deed and settlement agreement, which were referenced, but not included in the complaint. Generally, a district court must convert a motion to dismiss into a motion for summary judgment when matters outside the pleadings are relied upon. Fed.R.Civ.P. 12(b); Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991). A motion to dismiss considers the conduct alleged in the complaint, whereas a motion for summary judgment considers the evidence (or lack thereof) upon which the allegations are based. Bell v. Fur Breeders Agric. Coop., 348 F.3d 1224, 1230 (10th Cir. 2003). We have recognized however, that a document central to the plaintiff's claim and referred

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to in the complaint may be considered in resolving a motion to dismiss, at least where the document's authenticity is not in dispute. County of Santa Fe v. Pub. Serv. Co. of N.M., 311 F.3d 1031, 1045 (10th Cir. 2002); GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997). The district court also properly took judicial notice of a 2003 ordinance. Zimomra v. Alamo Rent-A-Car, Inc., 111 F.3d 1495, 1503 (10th Cir. 1997).

The district court declined to convert the motion to dismiss into one for summary judgment, so of course no notice issue is presented. Utah Gospel Mission, 316 F.Supp.2d at 1205 n.5, 1246 n.52. It declined a motion to strike other...

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