525 F.Supp. 1150 (D.R.I. 1981), Civ. A. 80-0669, Donnelly v. Lynch

Docket Nº:Civ. A. 80-0669
Citation:525 F.Supp. 1150
Party Name:Donnelly v. Lynch
Case Date:November 10, 1981
Court:United States District Courts, 1st Circuit, District of Rhode Island
 
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Page 1150

525 F.Supp. 1150 (D.R.I. 1981)

Daniel DONNELLY, et al.

v.

Dennis LYNCH, et al.

Civ. A. No. 80-0669.

United States District Court, D. Rhode Island.

Nov. 10, 1981

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Sandra Blanding, Warwick, R. I., for plaintiffs.

Maryfrances McGinn, City Sol., City of Pawtucket, Pawtucket, R. I., William F. McMahon, Providence, R. I., for defendants.

OPINION AND ORDER [*]

PETTINE, Chief Judge.

The First Amendment of the United States Constitution begins, "Congress shall make no law respecting an establishment of religion." By incorporation through the Due Process clause of the Fourteenth Amendment, Abington School District v. Schempp, 374 U.S. 203, 215-16, 83 S.Ct. 1560, 1567-68, 10 L.Ed.2d 844 (1967), this prohibition against official support of, and affiliation with, religious philosophies and institutions applies as well to the actions of state and local governments. In this case, the Court must decide whether the City of Pawtucket's ownership and erection of a nativity scene as part of its annual Christmas display violates this fundamental restriction on governmental power.

The plaintiffs are the Rhode Island affiliate of the American Civil Liberties Union (ACLU), Daniel Donnelly, George Kriebel, Robert Goodwin and A. Gregory Frazier. George Kriebel is and has been a real estate tax paying resident of the City of Pawtucket since February 1980. Robert Goodwin is and has been a personal property tax paying resident of said city since 1976. A. Gregory Frazier is and has been a personal property tax paying resident of Pawtucket since 1980. Daniel Donnelly, the original plaintiff, has resided in Pawtucket for four years and is a registered voter there. (I,7) 1

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Although he is liable to Pawtucket for personal property taxes, he has failed to pay them. At all times pertinent to this case the plaintiffs have been members of the Rhode Island affiliate of the ACLU. The defendants are Dennis Lynch, mayor of Pawtucket at the inception of this case and during the Christmas, 1980, display; 2 Richard Mumford, the City's Finance Director and chief fiscal officer (II, 1-2); Guy Dufault, Director of Parks and Recreation and Supervisor of the planning and implementation of the Christmas display (I, 64-66); and the City itself.

This action was filed one week before Christmas, 1980. Plaintiffs initially sought a temporary restraining order requiring immediate removal of the creche from the City's holiday display. At a conference with the Court, the defendants stated their firm intention to continue to include the nativity scene in future Christmas displays. 3 Assured by this representation that the issue would not become moot, plaintiffs agreed to withdraw their request for emergency relief in order to permit the Court sufficient time to receive evidence and afford the case the deliberate consideration which the issues deserved. The case proceeded to trial on an accelerated schedule, with the parties agreeing that the Court would then render a final decision on the merits. 4

In the course of trial, however, a serious question arose as to Mr. Donnelly's standing as a taxpayer. On August 31, 1981, the Court issued a "Tentative Opinion" holding that Mr. Donnelly lacked standing to litigate this case as a taxpayer. Counsel were advised that the Court was prepared to hear argument on this point. On October 15, 1981 the Court granted plaintiff's motion to amend the complaint to add the other present plaintiffs as parties. Through this motion the original plaintiff sought to remedy the absence of standing.

The filing and litigation of this case have generated an extraordinary outpouring of public comment in Pawtucket and surrounding communities. The facts are as follows:

Hodgson Park, the location of the Christmas display, is a privately owned open space area of approximately 40,000 square feet. (II, 81-82). Bounded by Roosevelt Avenue, Main Street, and Broadway, the Park lies in the heart of the downtown shopping district. (I, 90-91). The City's two largest retail establishments are within walking distance of the Park, as is City Hall. With the private owner's permission, the City enters Hodgson Park each year in November and erects a lighted Christmas display. (I, 65-66, 75). 5 City employees, or

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city-paid contractors, perform the setup work. (I, 66, 70). The City owns the lights, figures, and buildings that make up the display, (I, 85-90); it reimburses the private owner for all the electricity used by the display. (I, 72). Subject to the final approval of the Director of Parks and Recreation, a City maintenance supervisor designs the layout of the display. (I, 66). The Mayor may make changes in the layout. (II, 52). 6

The 1980-81 display contained the following:

-a "talking" wishing well

-Santa's House, inhabited by a live Santa who distributed candy

-a grouping of caroler/musician figures in old-fashioned dress, standing on a low platform surrounded by six large artificial candles

-a small "village" composed of four houses and a church

-four large, five-pointed stars covered with small white electric lights

-three painted wooden Christmas tree cutouts

-a live, 40' Christmas tree strung with lights

-a spray of reindeer pulling Santa's sleigh, set on an elevated runway

-a long garland hung from candy-striped poles

-cutout letters, colored in fluorescent paint, that spell "SEASON'S GREETINGS"

-21 cutout figures representing such varied characters as a clown, a dancing elephant, a robot and a teddy bear

-the nativity scene at issue in this case

Also, small colored lights festooned the trees growing in and near the Park. A schematic of the display, prepared by the City, 7 has been filed with the Court.

To visualize the layout of the display, some physical description of the Park is necessary. The Park is roughly bisected by the Blackstone River. (I, 90). The East half rises in a moderate slope to Broadway Street. The West half is bounded by Roosevelt Avenue, a main thoroughfare, and Main Street; it is on this half that most of the display is placed. On this perimeter of the Park, there are four bus stops, two of which have shelters. Two sets of stairs lead down into the Park from the Roosevelt Avenue sidewalk. Persons standing at the bus stops and walking along that sidewalk would have the best view of the display. (I, 114-15).

The nativity scene occupies the foreground of the display. The stable opens towards Roosevelt Avenue and all the figures are visible from that side. Looking down into the Park from the bus stops, the wishing well and Santa's House appear on the extreme left of the nativity scene. Behind and above the creche loom Santa's sleigh and reindeer. To the right of the creche are the live Christmas tree, the small "village," and the carolers, which face Roosevelt Avenue. (I, 94). 8

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The figures in the nativity scene are approximately life sized. (I, 101-02). 9 They include kings bearing gifts, shepherds, animals, angels, and Mary and Joseph kneeling near the manger in which the baby lies with arms spread in apparent benediction. All of the figures face the manger in which the baby lies; several have their hands folded and/or are kneeling. The figures' poses, coupled with their facial expressions, connote an atmosphere of devotion, worship, and awe. The stable is, inexplicably, shored up with two hockey sticks. Some of the figures are chipped, and the paint on several is peeling.

The nativity scene was purchased by the City in 1973 for $1,365. (I, 71-72). No money has since been expended on its maintenance. (Id.) This amount was comparable to that expended to purchase the three other large groupings-the carolers, the "village", and Santa's sleigh-that are part of the current display. The creche is assembled, removed, and stored by City workers; these tasks take a total of two worker-hours. (I, 67-68). Some additional time is spent by the City electrician in hooking up two spotlights to shine on the nativity scene. (I, 69). The Parks Director estimated that of the $4,500 spent for these employee services, about $20 was attributable to the creche. (I, 85). The City also spent a small amount, probably under $20, for spotlights, bulbs and holders to light the creche, (I, 78-79) and Pl.Ex. 7, and some unspecified sum for the electricity these use. (I, 72).

When the Hodgson Park display is opened, ceremonies at the Park are held in conjunction with those at City Hall, 300 feet away. Santa arrives at the Park in a City fire truck. He and the Mayor throw a switch, illuminating the lights at the Park and City Hall. Santa then goes to his House in the Park and distributes candy to the children. The "talking" wishing well also begins operation. The sound system that broadcasts Christmas carols through the Park is the same one used at City Hall (I, 102, 104). 10

During the trial of this case the Court received testimony from several individuals. This testimony bore on the purpose and the effect on viewers of Pawtucket's nativity scene and also on any political divisiveness that erection of the creche has caused. The Court will now summarize this testimony.

Plaintiff Donnelly testified that he first saw the Hodgson Park display, including the nativity scene in December, 1980. (I, 8, 10, 20). He stated that he viewed the creche as a religious display depicting the birth of Christ, and that he knew that it was sponsored by the City. (I, 11-14, 29). Perceiving this as a demonstration of official support for a particular religious viewpoint, which ran contrary to his strong belief in the separation of church and state, Mr. Donnelly testified that his reaction was one of fear. (I, 11-13). He explained that he regarded the City's use of the nativity scene as exemplifying an increasing tendency of various religious groups to become more...

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