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A divisive dispute over public access to a piece of Mormon-owned land in the heart of Salt Lake City could go before the Supreme Court next fall. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. First Unitarian Church of Salt Lake City, No. 02-1350, could also establish new rules for First Amendment activity on publicly accessible private property nationwide. The case is one of dozens the Court will consider at its private conference May 15 to determine whether or not to grant review. Cases the Court agrees to hear will be argued in the fall. The Court will also meet May 2. The dispute arose after Salt Lake City sold to the Mormon Church a two-acre section of Main Street between the church’s international headquarters and some of its sacred sites. As part of the $8.1 million deal signed in 1998, the city retained a public easement for “pedestrian access and passage only.” In all other respects, the parcel became private property under church control, and the deed explicitly said that the easement did not create a public forum of any kind. The deed also said the easement did not give the public any right to protest, leaflet, drink alcohol, or engage in indecent speech or conduct. The church proceeded to tear up the street and sidewalks and create a religious plaza, with displays on church history, as well as gardens and fountains. It has become Utah’s biggest tourist attraction. After the enclave was dedicated in 2000, religious and civic groups sued, claiming the easement created a public forum on which First Amendment activities could not be prohibited. A district judge sided with the church and the city, but the U.S. Court of Appeals for the 10th Circuit reversed, finding the easement “burdened” the property and made it a public forum similar to a public sidewalk. Meanwhile, as the dispute has worked its way through the courts, demonstrations have been staged on the property. Some protesters have been arrested, and Salt Lake City Mayor Ross Anderson has said the divisions caused by the dispute have had a “horrendous” impact on the city. In its appeal, the church asserts the 10th Circuit ruling runs counter to a 2nd Circuit decision involving public access to New York’s Lincoln Center, and a Nevada Supreme Court case involving a sidewalk owned by a casino. Both rulings found that public forums had not been established. “Government-owned public access easements over private property are common, especially in the west,” writes the church’s lawyer in the case, Carter Phillips of the D.C. office of Sidley Austin Brown & Wood. “They serve the public good by ensuring, among other things, access to public beaches, parks, and hiking trails. . . . Now, under the Tenth Circuit’s decision, the properties of many thousands of unsuspecting private citizens may be burdened by public fora merely because of such easements.” Phillips also argues that the practical effect of the ruling is to create “intractable entanglement problems” between the church and the city, by “mandating direct government regulation of a church-owned plaza full of religious symbols.” The American Civil Liberties Union, representing the groups opposing the church, argues that First Amendment rights on Main Street were not extinguished by the church’s deal. “Public highways and streets are often easements held for the public, with title to these property interests remaining in the abutting property owners,” writes ACLU lawyer Mark Lopez. “Holding that an easement cannot be a First Amendment forum would lead to the absurd conclusion that many public streets and sidewalks are not traditional public fora, a holding that is contrary to decades of this court’s jurisprudence.” Several briefs also mention that the Court’s ruling in a separate case set to be argued April 30, Virginia v. Hicks, No, 02-371, could affect the Salt Lake City dispute. That case involves public access to streets in a Richmond public housing development that were closed to prevent drug trafficking. OTHER CASES UP FOR REVIEW May 2: • Illinois v. Lidster, No. 02-1060. When a police roadblock checkpoint is established to find witnesses to a recent crime, and all cars are stopped, does the Fourth Amendment require suppression of evidence of driving under the influence of alcohol? • Citizens Bank v. Alafabco Inc., No. 02-1295. Whether an agreement to arbitrate disputes arising from a debt restructuring deal is enforceable under the Federal Arbitration Act. May 15: • Metropolitan Transportation Authority v. Greene, No. 02-1173. Whether state sovereign immunity protects state-created regional transportation agencies from private damage suits by their employees under the Federal Employers’ Liability Act. • Butler v. United States, No. 01-1185. When does a superseding indictment relate back to date of original indictment for statute-of-limitations purposes? • Jones v. R.R. Donnelley and Sons Co., No. 02-1205. Statute of limitations for new causes of action under the Civil Rights Act of 1991. • Dickson v. Microsoft Corp., No. 02-1305. Whether distributors who entered into anti-competitive agreements with a manufacturer, knowing that other competing distributors were entering into similar agreements, thereby join a single, “hub-and-spoke” antitrust conspiracy. • Locke v. Davey, No. 02-1315. Whether the First Amendment’s free exercise clause requires a state to fund scholarships for theology majors if it provides college scholarships for secular instruction. • Engine Manufacturers Association v. South Coast Air Quality Management District, No. 02-1343. Whether California rules on purchase of low-emission motor vehicles are pre-empted by Clean Air Act. • Olympic Airways v. Husain, No. 02-1348. Whether a flight attendant’s repeated refusal to accommodate an asthmatic passenger’s request to move farther from smoking section was an “accident” that proximately caused the passenger’s death on an international flight, thereby triggering liability under the Warsaw Convention. “Conference Call” seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column.

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