Chabad of S. Ohio & Cong. Lubavitch v. City, Cin.
| Decision Date | 05 April 2004 |
| Docket Number | No. 02-4340.,02-4340. |
| Parties | CHABAD OF SOUTHERN OHIO & CONGREGATION LUBAVITCH; Peter Ritchey, Plaintiffs-Appellees, v. CITY OF CINCINNATI, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Marc D. Mezibov (argued and briefed), Jarrod M. Mohler (briefed), Sirkin, Pinales, Mezibov & Schwartz, Cincinnati, OH, for Appellees.
Scott T. Greenwood, Greenwood & Assocs., Cincinnati, OH, for Peter Ritchey.
Richard Ganulin (argued and briefed), Assistant City Solicitor, Cincinnati, OH, for Appellant.
Before BATCHELDER and COLE, Circuit Judges; HOOD, District Judge.*
Plaintiffs-Appellees Chabad of Southern Ohio and Congregation Lubavitch (hereinafter, "Chabad") seek to erect a large menorah display on the main public square in Cincinnati, Ohio, and argue that a city ordinance prohibiting any non-government permit-based use of the square during the holiday season violates their First Amendment right to free speech. Upon the plaintiffs' motion, the district court below found that they had demonstrated a likelihood of success on the merits of their First Amendment claim and granted a preliminary injunction forbidding Defendant-Appellant to enforce the ordinance.
The City of Cincinnati appeals from the district court decision, arguing that the district court abused its discretion in granting Plaintiffs-Appellees' motion for preliminary injunction and enjoining Defendant-Appellant from enforcing a city ordinance. For the reasons that follow, we affirm the decision of the district court.
On November 1, 2001, Rabbi Sholom B. Kalmanson applied for a permit allowing Chabad to erect a Chanukah Menorah on Fountain Square in Cincinnati, Ohio (hereinafter, the "City"), during the 2001 Chanukah celebration. He simultaneously filed an application for the 2002 season. Rabbi Kalmanson stated that he submitted such an early application for the 2002 celebration because Daryl Brock, the City's Director of Public Service had advised him that the City was granting permits on a "first come, first served" basis in an effort to curb the Ku Klux Klan's ability to erect a cross on Fountain Square and that it would be in Chabad's best interest to apply as early as possible.
Chabad erected a Menorah in 2001, the eleventh consecutive year that it had done so. Downtown Cincinnati Incorporated also constructed a large display in the Square during the 2001 holiday season. In late June or early July 2002, Rabbi Kalmanson learned that Chabad's application for a permit to erect the Menorah during the 2002 Chanukah celebration was denied based on the enactment of Ordinance No. 0122-2002, amending Cincinnati Municipal Code ("CMC") sections 713-1 through 713-9 and 713-99 and with an effective date of May 16, 2002. The newly amended CMC § 713-1 stated that the City "shall exercise its right to exclusive use" of Fountain Square "during the last two weeks of November, the month of December, and the first week in January ...," a period including the 2002 Chanukah celebration and the proposed display of the menorah. CMC § 713-1. It continues:
The City has an inherent right to control its property, which includes a right to close a previously open forum. During times of exclusive use by the City of Cincinnati, the City will bear the ultimate responsibility for the content of the display or event. No other party, other than the City of Cincinnati, may make decisions with regard to any aspect of the event and/or display. No private participation with regard to any aspect of the event and/or display will be permitted at this time. However, the City may accept donations or funds from other entities for the event and/or display which is the subject of exclusive use. As a result of its sole responsibility, ownership, management and control by the City of Cincinnati during times of exclusive use, it is recognized the City is engaging in government speech.
The stated purpose for amended § 713 was identified in Ordinance No. 0122-2002 as follows:
With exclusive control over its content and design, the City will be able to ensure that the winter holiday display is safe, well-coordinated, inviting, and appeals to the widest of audiences for purposes of supporting and permitting the City's specific government interests....
Ordinance No. 0122-2002. These interests are listed, as follows:
(1) to better coordinate competing uses of Fountain Square;
(2)to ensure equal access to Fountain Square;
(3)to promote and develop tourism and recreation;
(4)to encourage, promote, simulate, and assist in the development of the Cincinnati business economy;
(5)to maintain, develop, and increase employment opportunities for those who live, work, and may consider moving to Cincinnati, and the Cincinnati region; and
(6)to pursue efforts to promote the expansion of the population residing within Cincinnati and to specifically encourage, stimulate, and develop an expanding downtown resident population.
Following the denial of the permit application, Kalmanson stated that he attempted to negotiate the permit matter over many months but that his calls to various city officials, including the mayor, were never returned or that he was otherwise rebuffed. Plaintiffs-Appellees filed their verified complaint against the City on November 12, 2002. On November 13, 2002, Chabad moved for a temporary restraining order and preliminary injunction. After a November 25, 2002, hearing, the district court granted Plaintiffs-Appellees motion for preliminary injunction on November 27, 2002 and consolidated the matter with that captioned Ritchy v. City of Cincinnati, 233 F.Supp.2d 975.1 The Sixth Circuit Court of Appeals entered a stay of the order enjoining enforcement. Justice Stevens, writing as Circuit Justice, subsequently vacated that stay on November 29, 2002.
"When ruling on a motion for a preliminary injunction, a district court must consider and balance four factors: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction." Blue Cross & Blue Shield Mut. of Ohio v. Columbia/HCA Healthcare Corp., 110 F.3d 318, 322 (6th Cir.1997) (citations omitted).
We review a district court's grant of a preliminary injunction for abuse of discretion. Mascio v. Pub. Employees Ret. Sys. of Ohio, 160 F.3d 310 (6th Cir.1998). "The injunction will seldom be disturbed unless the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard." Id. at 312. "This Court `will reverse a district court's weighing and balancing of the equities only in the rarest of circumstances.'" Id. (quoting Moltan Co. v. Eagle-Picher Indus., Inc. 55 F.3d 1171, 1175 (6th Cir.1995)).
Chabad has standing to bring a facial challenge against the City's ordinance. Chabad seeks to use a traditional public forum for expressive activities during the seven week period for which the City's ordinance prohibits all use of the type in which Chabad seeks to engage. See Congregation of Lubavitch v. City of Cincinnati, 997 F.2d 1160, 1164 (6th Cir. 1993) (hereinafter, "Lubavitch II") (). Thus, Chabad faces an imminent and concrete injury in fact, directly traceable to the City's ordinance, that is redressable by a decision in its favor. See Cleveland Branch, N.A.A.C.P. v. City of Parma, 263 F.3d 513, 524 (6th Cir.2001).
The City challenges Chabad's standing on the basis that Chabad did not exhaust its administrative remedies. Without deciding whether a party would ever have to exhaust administrative remedies in order to bring a facial challenge to a regulatory scheme under the free speech clause of the First Amendment, we note that there is no administrative appeals process available to Chabad in this case. The City provides an appeals process for the denial of a permit where the permit seeker contends that its application meets the requirements of the City's permitting scheme. See § 713-4(i) (). However, the portions of § 713 challenged in this case do not act as a permitting scheme at all. Rather, they constitute a flat prohibition on all use of the square of the type that requires a permit during the rest of the year. Chabad did not need to appeal the denial of its permit application in an appeals process that only gives the city manager authority to decide the one issue upon which the parties agree, that § 713 prohibits Chabad's intended use.
The City of Cincinnati enacted Ordinance No. 0122-2002 in order to reserve for itself exclusive use of Fountain Square for a seven week period including the last two weeks of November, all of December, and the first week of January. Appellee Chabad sought to enjoin the City from enforcing the ordinance on several grounds. Finding that Chabad had a "strong likelihood" of success on its free speech claim, the district court did not address any of Chabad's other grounds. The district court did not abuse its discretion when it concluded that the ordinance was a content-based regulation of private speech that does not meet strict scrutiny.
As an initial matter, the City submits that the district court abused its discretion by failing to consider a...
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