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SALT LAKE CITY (AP) -- An appeals court ruling that preserved 1st Amendment free-speech rights on the Main Street plaza could drive down prices in future sales of public property, according to a legal brief Utah Attorney General Mark Shurtleff filed Monday with the U.S. Supreme Court.
The brief seeks clarification on "how government can constitutionally terminate a public forum and sell the property to a private owner."
Shurtleff filed the friend-of-the-court brief after a church lawyer asked the state to support The Church of Jesus Christ of Latter-day Saints' effort to get a Supreme Court review of a 10th U.S. Circuit Court of Appeals ruling.
On Oct. 9, the appeals court threw out speech and behavior restrictions on the public sidewalks through the plaza.
Those restrictions were part of the 1999 sales contract between the church and Salt Lake City for a block of Main Street that the church has turned into a pedestrian plaza connecting Temple Square with its headquarters building.
The 10th Circuit ruled the restrictions on Main Street's traditional public thoroughfare were unconstitutional, and that it was the city's responsibility to control use of the public easement, not the church's.
State attorneys analyzed the 10th Circuit ruling and decided that broad questions about sale of public land to private buyers needed to be answered.
"We agreed there was clearly a state interest here," Shurtleff said.
But attorneys for the American Civil Liberties Union, which sued the church and city over the Main Street sale on behalf of several complainants, said the brief mischaracterizes both the 10th Circuit ruling and the original suit against the city and the church.
"We have never said that if any public property is sold, it must be open to the 1st Amendment," said former Utah ACLU counsel Stephen Clark. "That's a serious misstatement of the facts to the U.S. Supreme Court."
The ACLU's national legal director, Steven Shapiro, said the 10th Circuit decision focused only on the contract negotiated between the church and the city.
"This case doesn't bring up these broad issues," he said. "It's not really an issue of principle, it's an issue of facts. The facts have been thoroughly litigated and resolved."
Calling the 10th Circuit's ruling "overly rigid", unprecedented and detrimental, the amicus brief says government's ability to sell public land would be harmed if it couldn't completely close so-called public forums.
"Private buyers will not pay full market value for a protest zone -- indeed, many will not pay anything at all," the brief states.
State Solicitor General Annina Mitchell, acknowledging that the office's action invited potential questions about church-state separation, said the state's only interest was as a landowner.
The amicus brief "is not really about the plaza. It's about the disposition of property," she said.
The brief states that the U.S. Supreme Court hasn't ever specifically ruled on what government would have to do to terminate public access on property it sells.
The brief points out that Justice Anthony Kennedy in 1992 said a public forum could be closed by selling the property, changing its physical character or changing its principal use.
But Kennedy wasn't speaking for the entire court, and what he said needs clarification, Mitchell said.
Attorneys general from Alabama, Kansas, Nebraska, Texas and West Virginia signed the brief.
Mitchell said "the chances are not that great" that the Supreme Court would agree to hear the church's case.
Shapiro agreed, and said that the number of states that agreed to sign the brief is telling.
"Only five other states joined Utah on its brief," Shapiro said. "If there were such an enormous issue raised by this case you would think more states would have joined."
(Copyright 2003 by The Associated Press. All Rights Reserved.)
