Citizens Concerned for Separation of Church and State v. City and County of Denver

Decision Date04 September 1980
Docket NumberNo. 79-2303,79-2303
Citation628 F.2d 1289
PartiesCITIZENS CONCERNED FOR SEPARATION OF CHURCH AND STATE, Plaintiff-Appellee, v. The CITY AND COUNTY OF DENVER, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Jonathon B. Chase, American Civil Liberties Union Foundation of Colorado, Inc., Boulder, Colo. (Daniel H. Israel of Dechert, Price & Rhoads, Denver, Colo., with him on brief), for plaintiff-appellee.

Stan M. Sharoff, Asst. City Atty., Denver, Colo. (Max P. Zall, City Atty., Brian H. Goral and Stanley Ereckson, Jr., Asst. City Attys., Denver, Colo., with him on brief), for defendant-appellant.

Marc D. Stern, New York City, filed an amicus curiae brief for American Jewish Congress.

Mark M. Wolfe, Denver, Colo., filed an amicus curiae brief for National Organization for Our American Heritage.

Before BARRETT, DOYLE and McKAY, Circuit Judges.

BARRETT, Circuit Judge.

The City and County of Denver (City) appeals from a judgment entered December 17, 1979, in favor of Citizens Concerned for Separation of Church and State (Citizens) enjoining the inclusion of the Nativity Scene in the Christmas display at the Denver City and County Building, ordering its removal within forty-eight hours, and awarding plaintiff costs and attorney's fees.

Litigative Background

This action was initiated by complaint filed November 28, 1979, by Citizens, brought by alleged but unnamed Denver residents charging violations of the Establishment Clause of the First and Fourteenth Amendments to the United States Constitution and Article Two, Section Four and Article Nine, Section Seven of the Colorado Constitution. Citizens sought declaratory judgment and preliminary and permanent injunctive relief to prevent the City from "displaying, storing, and appropriating public funds for the nativity scene (creche) in front of and within the City and County Building. The creche is part of the City and County's Christmas Lighting Program which has been conducted annually for more than eight years, and includes a Santa Claus scene and lighting display." (R., Vol. I, p. 1).

The claim was brought pursuant to 42 U.S.C.A. § 1983. The District Court's jurisdiction was alleged to have vested pursuant to 28 U.S.C.A. § 1343(3). 1

Under the caption "Parties", Citizens alleged:

PARTIES

Plaintiff, Citizens Concerned for Separation of Church and State, is an unincorporated association, members of which are residents and taxpayers of the City and County of Denver and the State of Colorado. All have paid taxes which are used, in part, to erect, maintain, display, disassemble and store the creche.

(R., Vol. I, p. 2).

The complaint was executed by Jonathon Chase, attorney for plaintiff, FOR: American Civil Liberties Union Foundation of Colorado. (R., Vol. I, p. 4).

Citizens moved for entry of a preliminary injunction on December 6, 1979, pursuant to Fed.Rules Civ.Proc. rule 65(a), 28 U.S.C.A. The matter was thereafter heard on December 12, 1979, prior to the filing of any answer or other response by City. The parties presented witnesses and exhibits. At the conclusion of the evidence and arguments of counsel, the following colloquy occurred, after the presiding judge inquired of counsel for Citizens of the remedy desired and was informed that the requested remedy was the entire removal of the Nativity Scene from the Christmas display:

THE COURT : . . . If this case were to be decided with an additional opportunity for hearing or trial would the City put on anything different from what you have already put on?

MR. ERECKSON : We don't believe so, Your Honor.

THE COURT : Essentially, you have presented your case?

MR. ERECKSON : Essentially we have, Your Honor.

THE COURT : You don't feel disadvantaged in your case by doing this in a rush for Motion for Preliminary Injunction?

MR. ERECKSON : I don't believe so, Your Honor.

THE COURT : Well, I guess I can't duck out. I don't have any procedural ground, but I do believe that if I took until Monday to decide the case I wouldn't be guilty of permitting an irrevocable injury to occur between now and then, at least whether I do or don't. I am at least going to take that long to think about it.

So what I will do-take the case under advisement, and we'll resume at two o'clock on Monday. I guess that is the 17th isn't it?

MR. ERECKSON : It is, Your Honor.

THE COURT : At which time I will rule.

MR. CHASE : Your Honor, in light of the defendant's position with respect to whether or not they would wish to put on more, I would move at this time that Rule 65(a)2, that this hearing be consolidated and be considered the trial on the merits.

THE COURT : Is that stipulated and agreed?

MR. ERECKSON : So stipulated.

THE COURT : All right, your motion is granted, and by stipulation it is granted, and the case is now standing submitted on the merits, and I'll have my ruling at two o'clock, Monday afternoon and announce it from the bench.

(R., Vol. II, pp. 155-157).

On December 17, 1979, the Court announced its ruling from the bench. The Court, both orally, and thereafter in its memorandum opinion and order filed that same day, observed that the civil action was brought "by an unincorporated association of residents and taxpayers of the City and County of Denver, Colorado, appearing through the American Civil Liberties Union". (R., Vol. III, pp. 2, 3; Vol. I, p. 14). The Court reviewed the history of the lighting display at the City and County Building in downtown Denver, maintained for many years during the annual Christmas holiday season, and found: that it involves a spectacle of lights, stars, candles, Christmas cards, an elves' toy shop, Santa Claus, reindeer, flood lights, various tinsel, a cross, and the challenged creche or Nativity Scene; the creche, since the year 1962, has been owned and maintained by City; the creche consists of life-size figurines of Mary, Joseph, the infant Jesus, shepherds, wise men, and domesticated animals, depicting the birth of Christ as described in the writings of St. Matthew, St. John, and St. Luke; the figurines used in the Nativity Scene were purchased by Denver with public funds in 1962; the evidence presented at trial was overwhelmingly supportive of plaintiffs' position that the Nativity Scene is a religious symbol and that by including it in the Christmas display the City and County of Denver violated the Establishment Clause of the First Amendment which is incorporated in the Fourteenth Amendment to the United States Constitution. (R., Vol. I, pp. 14-17). The Court concluded that even though the designed total effect of the display is to turn the entire front of the City and County Building into a spectacle of light, and when viewed from a distance, the Nativity Scene is almost indiscernible, persons may also walk by the display thus creating an excessive government entanglement with religion proscribed by the First Amendment. Citizens Concerned, etc. v. City and County of Denver, 481 F.Supp. 522 (D. Colo. 1979).

Appeal was taken from the District Court's judgment on December 17, 1979. On December 18, 1979, City filed a motion with this Court to stay the enforcement of the District Court's judgment pending appellate review. That motion was granted on the same day. On December 19, 1979, Citizens filed a "Petition for Rehearing and a Suggestion for Rehearing en Banc" which was denied by this Court on December 28, 1979. On December 31, 1979, Citizens applied to the United States Supreme Court to vacate the stay order granted by this Court. On January 21, 1980, the Supreme Court denied the application.

On appeal, City contends that the District Court's judgment should be reversed in that (1) the plaintiff has failed to prove its standing to litigate and obtain the relief requested, and (2) the Nativity Scene as displayed on the grounds of the City and County Building does not violate the First Amendment to the United States Constitution.

I.

City asks us to dismiss the action (and appeal) because of the failure of plaintiff to prove the requisite standing required under Article III, § 2 of the United States Constitution.

While recognizing that paragraph three (3) of the complaint alleges that plaintiff is an unincorporated association whose members are residents and taxpayers of the City and County of Denver and the State of Colorado who have paid taxes which are used in part to erect, maintain, display, disassemble, and store the creche scene, City argues that, nevertheless, the record is completely devoid of any evidence to establish the truth of those allegations. (Brief of appellant, p. 10). City points out that the record does not evidence the identity of the members of the unincorporated association, whether they are taxpayers, or where they reside. City states that "admittedly, evidence was presented at the time of the hearing on this matter from witnesses that they were residents of the City and County of Denver and State of Colorado. Yet, no evidence was submitted that these witnesses, or anyone else for that matter, were members of the plaintiff association." (Brief of appellant, p. 10).

In response to City's contention that standing has not been established, Citizens points to the allegations contained in paragraph 3 of its complaint, supra, and contends that City:

". . . does not argue, as it could not, see Flast v. Cohen, 392 U.S. 83 (88 S.Ct. 1942, 20 L.Ed.2d 947) (1960), that taxpayers lack standing to raise claims of Establishment Clause violations. Defendant's position in its Brief, at 10-11, is that because plaintiff did not put on testimony at the trial to establish the truth of those factual allegations, the case must be dismissed for lack of standing. Where defendant's argument fails, however, is in the fact that defendant never denied the allegations of paragraph 3 or otherwise put the question of jurisdiction at issue. Only when the facts claimed as the basis for jurisdiction are challenged...

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