Utah Gospel Mission v. Salt Lake City Corp.

CourtUnited States District Courts. 10th Circuit. United States District Court of Utah
Citation316 F.Supp.2d 1201
Decision Date03 May 2004
Docket NumberNo. 2:03CV688 DAK.,2:03CV688 DAK.
PartiesUTAH GOSPEL MISSION, First Unitarian Church of Salt Lake City, Shundahai Network, Utah National Organization for Women, and Lee J. Siegel, Plaintiffs, v. SALT LAKE CITY CORPORATION, a municipal corporation, Ross C. "Rocky" Anderson, Mayor of Salt Lake City, in his official capacity; and Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, Defendants.

Mark J. Lopez, Sharon M. McGowan, American Civil Liberties Union, New York City, Margaret D. Plane, American Civil Liberties Union, Salt Lake City, UT, for Plaintiffs.

Michael P. O'Brien, Jones, Waldo, Holbrook & McDonough, Salt Lake City, UT, for Heather May and The Salt Lake Tribune.

Randy L. Dryer, Parsons, Behle & Latimer, Salt Lake City, UT, for Brady Snyder and Deseret Morning News.

Steven W. Allred, Boyd A. Ferguson, Martha S. Stonebrook, Salt Lake City Attorneys Office, Salt Lake City, UT, for Defendant.

Dan R. Larsen, Alan L. Sullivan, James Delos Gardner, Snell & Wilmer, LLP, Salt Lake City, UT, Von G. Keetch, Alexander Dushku, Kirton & McConkie, Salt Lake City, UT, for The Corporation of Presiding Bishop of LDS Church.


KIMBALL, District Judge.

This matter is before the court on (1) Plaintiffs Utah Gospel Mission, First Unitarian Church of Salt Lake City, Shundahai Network, Utah National Organization for Women, and Lee J. Siegel's (collectively referred to as "Plaintiffs") Motion for Preliminary Injunction, (2) Defendants Salt Lake City Corporation (the "City") and Ross C. ("Rocky") Anderson's (the "Mayor") (collectively referred to as the "City Defendants") Motion to Dismiss, (3) Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints' (the "LDS Church" or the "Church")1 Motion to Dismiss, (4) Plaintiffs' Motion to Strike Materials from Defendants' Motion to Dismiss, (5) Plaintiffs' Motion to Strike Declarations of Thomas G. Alexander and Ross C. Anderson, or in the Alternative, for Leave of Court to Depose Declarants and Supplement the Record, and (6) the LDS Church's Motion to Strike Barber Declaration and Portions of Eyer Declaration.

A hearing on the motions was held on January 26, 2004. At the hearing, Plaintiffs were represented by Mark J. Lopez, the City was represented by Steven W. Allred, and the LDS Church was represented by Alan L. Sullivan. Before the hearing, the court carefully considered the memoranda and other materials submitted by the parties. Since taking the motions under advisement, the court has further considered the law and facts relating to the motions. The court has also considered the supplemental materials submitted to the court following the January 26, 2004 hearing, including: (1) two letters containing supplemental authority and argument from Plaintiffs, both of which were dated February 12, 2004; (2) the LDS Church's February 17, 2004 response to Plaintiffs' supplemental letters; (3) the City's February 19, 2004 response to Plaintiffs' supplemental letters; (4) Plaintiffs' February 19, 2004 third supplemental letter; and (5) the LDS Church's February 23, 2004 response to Plaintiffs' third supplemental letter. Now being fully advised, the court renders the following Memorandum Decision and Order.


The instant litigation is the second round of a long-standing and divisive dispute pertaining to the City's sale to the LDS Church of a block of Main Street (the "Main Street Plaza") in downtown Salt Lake City, Utah. The first round of this dispute involved the City's sale of Main Street Plaza and the City's reservation of an easement (the "Pedestrian Easement" or "Easement") through the Plaza while at the same time allowing the LDS Church to control behavior and limit First Amendment activity on the Plaza. The Tenth Circuit Court of Appeals ultimately determined that the Easement itself was a public forum for First Amendment purposes and that the City and Church could not prohibit protected speech on the Pedestrian Easement. See First Unitarian Church v. Salt Lake City Corp., 308 F.3d 1114 (10th Cir.2002) ("Main Street I").2

The instant action — round two of the dispute — involves the fallout from the Tenth Circuit's decision in Main Street I and specifically the constitutionality of the City's sale to the LDS Church of the Pedestrian Easement. Through the sale of the Easement, the LDS Church secured the right to prohibit First Amendment activity on the Main Street Plaza, and, in exchange, the City obtained 2.125 acres of LDS Church-owned property in the Glendale neighborhood of the City, payment of half the attorneys' fees awarded against the City in the previous litigation, and $5 million in cash and land from the Alliance for Unity. In total, the City obtained, among other things, over $5.375 in land and cash in exchange for the Pedestrian Easement, which had been valued at $500,000.

Plaintiffs believe that the Mayor's decision to sell the Pedestrian Easement was brought about by the undue influence of the LDS Church. In particular, they assert that the pressure brought to bear by the Church and its threat of community divisiveness was the major consideration in the Mayor's decision to capitulate to the Church's demands — even if it meant sacrificing the public interest in maintaining the Easement.

The City and the Church, on the other hand, argue that the Mayor proposed a compromise that, among other things, would bring many secular benefits to the City, including obtaining land and cash valued at over $5.375 million, putting to rest the legal battles between the City and the Church, and helping to heal the wounds of a City divided along religious lines.

The question in this case is whether the sale of the Pedestrian Easement, however characterized by the parties, (1) violated Plaintiffs' rights to freedom of expression and assembly under the First and Fourteenth Amendments to the United States Constitution, and (2) constituted an improper establishment of religion under the First and Fourteenth Amendments to the United States Constitution and Article I, Section 4 of the Utah Constitution.3

The events leading up to the present litigation are well known and largely undisputed.4 Many of the underlying facts are reported in the Tenth Circuit Court of Appeals' decision in Main Street I, 308 F.3d at 1117-20. In addition, the court has relied on Salt Lake City Ordinance No. 31 of 2003, which includes, as Exhibits A and B respectively, the Settlement Agreement and Amended Special Warranty Deed, which are discussed extensively below.5 Many of the facts set forth below are not essential to the court's legal analysis, but are set forth to provide historical context to this contentious controversy.


This case involves a two-acre parcel of land (the "Property") located between North Temple Street and South Temple Street in downtown Salt Lake City. The LDS Church owns all the property on the two city blocks on the east and west sides of this portion of the former Main Street. On these blocks, the Church maintains a number of important historical, administrative, and worship facilities. The west block is called "Temple Square" and contains the Tabernacle and the Salt Lake Temple; the east block houses the Church administration buildings. Before the City closed and sold it to the LDS Church, the Property was a section of Main Street, consisting of a typical public street and adjoining public sidewalks. In 1995, the City sold the LDS Church the subsurface rights to this portion of Main Street, which the Church eventually developed into an underground parking garage. The sale agreement for that transaction also gave the LDS Church a right of first refusal on the surface property, if the City ever decided to sell it.

In 1998, the City explored the possibility of closing the surface portion of Main Street and selling it to the LDS Church. On December 1, 1998, the City and LDS Church officials held a joint news conference to announce a proposal to develop an open-space pedestrian plaza on Main Street between North and South Temple. The LDS Church indicated that it was interested in such a purchase in order to construct a pedestrian plaza that would unify its international headquarters campus, which the Property (as a street) then bisected.

On April 13, 1999, after hearings before the Planning Commission and the Salt Lake City Council, the City Council passed Ordinance No. 28 of 1999, closing the Property to public use. On April 27, 1999, the LDS Church purchased the Property for $8.124 million, which represented the appraised fair market value of the Property in fee simple absolute, without any significant encumbrances. Main Street I, 146 F.Supp.2d 1155, 1159-61 (D.Utah 2001) rev'd on other grounds by Main Street I, 308 F.3d at 1133. Nevertheless, in the April 27, 1999 Special Warranty Deed (the "Special Warranty Deed") conveying the Property, the City reserved several easements. Among these was the Pedestrian Easement. Despite the reservation of the Easement, the $8.124 million purchase price was not altered.

Unlike a typical public sidewalk easement, the Pedestrian Easement had no dimensions (no metes and bounds), no specific location, and no physical existence. Rather, it was purely a legal right to access and pass across the Property. Although the Easement guaranteed a public right of way through the property, it otherwise granted the LDS Church unfettered discretion to control all other conduct on the Plaza — including First Amendment activity. The Pedestrian Easement was specifically defined to ensure that the Property and eventual Plaza would not be dedicated to public ownership or constitute a First Amendment forum of any kind. Among other limitations, the Special Warranty Deed stated that the "Property is and...

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