Staley v. Harris County, Tex., 04-20667.

• Citation: 485 F.3d 305
• Decision Date: 24 April 2007
• Docket Number: No. 04-20667.,04-20667.
• Parties: Kay STALEY, Plaintiff-Appellee, v. HARRIS COUNTY, TEXAS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

485 F.3d 305

Kay STALEY, Plaintiff-Appellee, v. HARRIS COUNTY, TEXAS, Defendant-Appellant.

No. 04-20667.

United States Court of Appeals, Fifth Circuit.

April 24, 2007.

Ayesha Khan, Richard Brian Katskee, Americans United for Separation of Church & State, Washington, DC, Randall L. Kallinen (argued), Houston, TX, for Plaintiff-Appellee.

Bruce S. Powers, Asst. County Atty., Frank Edward Sanders, Asst. County Atty., Michael Anthony Stafford, Asst. County Atty. (argued), Houston, TX, James C. Ho, Michael Sean Royall, Gibson, Dunn & Crutcher, Dallas, TX, for Defendant-Appellant.

Edward Lawrence White, III, Thomas More Law Center, Ann Arbor, MI, for Thomas More Law Center, Amicus Curiae.

Douglas G. Smith, Kirkland & Ellis, Chicago, IL, for Eagle Forum Education and Legal Defense Fund, Amicus Curiae.

Joel Lance Thollander, Susanna Dokupil, R. Ted Cruz (argued), Austin, TX, for State of Texas, Amicus Curiae.

Benjamin David DuPre', Law Offices of Benjamin D. DuPre', Montgomery, AL, for Moral Law Inc., Amicus Curiae.

Peter Dominick Lepiscopo, Law Offices of Peter D. Lepiscopo, San Diego, CA, for Pacific Justice Institute, Amicus Curiae.

David Andrew Cortman, Alliance Defense Fund, Lawrenceville, GA, for Star of Hope Mission, Amicus Curiae.

Joshua William Carden, Joshua Carden Law Firm P.C., Weatherford, TX, for Star of Hope Mission, William L. Mosher, Jr., William L. Mosher, III, Emily Elizabeth Mosher, Margaret L. Rosenlund, Ann Mosher Waldie and Christopher T. Jones, Amici Curiae.

Kelly J. Shackelford, Liberty Legal Institute, Plano, TX, for William L. Mosher, Jr., Emily Elizabeth Mosher, Margaret L. Rosenlund, Ann Mosher Waldie and Liberty Legal Institute, Amici Curiae.

David L. Hagen, Goshen, IN, pro se, Amicus Curiae.

Steven W. Fitschen, National Legal Foundation, Virginia Beach, VA, for National Legal Foundation, Amicus Curiae.

Sylvia Ann Mayer, Stephen Todd Loden, Weil, Gotshal & Manges, Houston, TX, for Anti-Defamation League, Amicus Curiae.

Michael F. Linz, Dallas, TX, Lisa S. Graybill, Austin, TX, for American Civil Liberties Union Foundation of Texas, Amicus Curiae.

Appeals from the United States District Court for the Southern District of Texas.

Before JONES, Chief Judge, and KING, JOLLY, HIGGINBOTHAM, DAVIS, SMITH, WIENER, BARKSDALE, GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, and OWEN, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

We voted this case en banc to decide whether, in the factual context presented, the display of a Bible in a monument dedicated to a philanthropic citizen and located on the grounds of the Harris County Civil Courthouse, violates the Establishment Clause. The district court ordered the Bible removed. We decline, however, to reach the merits of this appeal. Instead, we hold that the case is moot because only days before oral argument in this en banc case, the County removed the monument from the public grounds and placed it in storage, to permit the ongoing renovation of the Courthouse and its grounds. Furthermore, it is not known when, where, or under what circumstance the monument and Bible will be restored on the Courthouse grounds. Because the case is moot, we must decide whether to vacate the district court judgment. This decision rests upon equitable principles, and we conclude that the County has not met its burden of showing that it is entitled to the equitable relief of vacatur. We therefore DISMISS the appeal and REMAND the case solely for a determination of appropriate attorneys' fees.

I.

In our panel opinion, 461 F.3d 504, we set out the history of the Mosher monument. The monument was erected on the Harris County Civil Courthouse grounds in 1956 in honor of Houstonian philanthropist William S. Mosher and was refurbished and rededicated in 1995. See id. at 505-07. In considering whether the display of the Bible in the monument violated the Establishment Clause, we emphasized that Establishment Clause analysis is context-specific and fact-intensive. See id. at 510-13. In the specific context of the refurbishment and rededication of the monument, the panel majority concluded that the display of the Bible violated the Establishment Clause and thus affirmed the district court's judgment ordering the Bible removed. See id. at 513-15. The County timely petitioned for rehearing en banc, which we granted.

About two months before oral argument of this en banc case, it came to our attention that the Courthouse had closed for renovations and would likely remain closed for a few years. Accordingly, the Court asked the parties to brief these changes as they affected the "case or controversy" requirement of Article III of the U.S. Constitution.

In response, Harris County informed the Court that the monument was scheduled to be removed and placed in storage during the renovations of the Courthouse, and that the renovations would not be completed until 2009 at the earliest. On January 19, 2007, only four days before we heard oral argument as an en banc court, Harris County removed the monument and placed it in storage. Harris County specifically has asserted that it will display the monument again after the renovations are complete.

II.

The question before us is whether this appeal is moot. The district court ordered the Bible removed from the monument because it concluded that the placement of the Bible in the monument violated the Establishment Clause in the context of the facts of this case. Because the monument and Bible are no longer displayed, the County asks us to hold that the case has become moot, to dismiss the appeal, and to vacate the judgment. We review questions of mootness de novo. Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 659 (5th Cir.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 938, 166 L.Ed.2d 704 (2007).

Furthermore, the County emphasizes that no decision has been made regarding when, where, or under what circumstances the monument will be displayed again in the future. According to the County, then, the monument's future is too speculative to determine whether the monument will violate the Establishment Clause in the future. This raises questions of ripeness, which we also review de novo. Id. In determining the constitutionality of a religious display, the Supreme Court has made clear that "under the Establishment Clause detail is key." McCreary County, Ky. v. ACLU of Ky., 545 U.S. 844, 867-68, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005) (citing County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 595, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) ("[T]he question is what viewers may fairly understand to be the purpose of the display. That inquiry, of necessity, turns upon the context in which the contested object appears") (internal quotation marks and citation omitted)).

The importance of facts and context is evident from the respective outcomes in two recent Supreme Court decisions addressing the constitutionality of Ten Commandments displays. See McCreary, 545 U.S. at 844, 125 S.Ct. 2722; Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005). In both McCreary and Van Orden, the issue before the Supreme Court was whether a Ten Commandments display violated the Establishment Clause. See McCreary, 545 U.S. at 850, 125 S.Ct. 2722; Van Orden, 545 U.S. at 681, 125 S.Ct. 2854. The two cases, however, involved very different facts, and based on the specific facts and context of each case, the Supreme Court upheld the display in Van Orden but struck down the displays in McCreary. See McCreary, 545 U.S. at 881, 125 S.Ct. 2722; Van Orden, 545 U.S. at 692, 125 S.Ct. 2854.

In Van Orden, the Court upheld a Ten Commandments display on the Texas State Capitol grounds. Van Orden, 545 U.S. at 692, 125 S.Ct. 2854. In its opinion, the plurality distinguished the display from classroom Ten Commandments displays held unconstitutional in Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (per curiam), noting a "far more passive use of those texts than was the case in Stone." Van Orden, 545 U.S. at 691, 125 S.Ct. 2854. Similarly, in his opinion concurring in the judgment in Van Orden,¹ Justice Breyer emphasized the importance of specific facts: "While the Court's prior tests provide useful guideposts . . . no exact formula can dictate a resolution to such fact-intensive cases." Van Orden, 545 U.S. at 700, 125 S.Ct. 2854 (Breyer, J., concurring) (internal citations omitted). Relying on the specific facts and context surrounding the Ten Commandments display on the Texas State Capitol grounds, Justice Breyer concluded that the display in this "borderline case" did not violate the Establishment Clause and was distinguishable from other Ten Commandments displays held unconstitutional by the Supreme Court, including the displays in McCreary. See id. at 700-03, 125 S.Ct. 2854.

In McCreary, the Court struck down Ten Commandments displays in two Kentucky county courthouses. The two counties had installed a display in their respective courthouses, and after the ACLU sued, the counties replaced them with a second set of displays. McCreary, 545 U.S. at 851-53, 125 S.Ct. 2722. The district court ordered the second set of displays removed, and the counties installed a third set of displays, which the district court also ordered removed. Id. at 854-57, 125 S.Ct. 2722. In its analysis, the Supreme Court looked to the purpose of the Ten Commandments displays, explaining that "purpose needs to be taken seriously under the Establishment Clause and needs to be understood in light of context." Id. at 874, 125 S.Ct. 2722. The Court held the first and second displays unconstitutional based on the specific facts surrounding the displays. Id. at 868-70, 125 S.Ct. 2722. The Court also struck down the third set of displays, and in doing so, the Court looked to the displays' historical contexts and evaluated them in the light of the first and second sets of displays. Id. at 871-72, 125 S.Ct. 2722.

In this...