Kaplan v. City of Burlington, Civ. A. No. 88-168.

• Decision Date: 09 December 1988
• Docket Number: Civ. A. No. 88-168.
• Citation: 700 F. Supp. 1315
• Parties: Mark A. KAPLAN, Esquire, Rabbi James S. Glazier, and Reverend Robert E. Senghas, v. CITY OF BURLINGTON, Sidney C. Baker, Superintendent of Parks and Recreation Department, and Robert Whalen, Operations Manager of Parks and Recreation Department.
• Court: U.S. District Court — District of Vermont

700 F. Supp. 1315

Mark A. KAPLAN, Esquire, Rabbi James S. Glazier, and Reverend Robert E. Senghas, v. CITY OF BURLINGTON, Sidney C. Baker, Superintendent of Parks and Recreation Department, and Robert Whalen, Operations Manager of Parks and Recreation Department.

Civ. A. No. 88-168.

United States District Court, D. Vermont.

December 9, 1988.

Richard T. Cassidy, Hoff, Wilson, Powell & Lang, Burlington, Vt., for plaintiffs.

John Franco, Asst. City Atty., Burlington, Vt., for defendants.

OPINION AND ORDER

BILLINGS, District Judge.

Plaintiffs initiated this action on June 30, 1988, seeking declaratory and injunctive relief preventing defendants from issuing a "Park Special Use Permit" to the Vermont Organization of Jewish Education-Lubavitch ("Lubavitch") for display of a menorah in City Hall Park in Burlington during Hanukkah. Plaintiffs allege that the City's action violates their rights under the establishment clause of the first amendment to the United States Constitution.

Defendants initially moved to dismiss the suit on the grounds that at filing it was both moot and not yet ripe. Hearing on that motion was held on August 1, 1988. On August 29, 1988, this Court issued an Opinion and Order denying defendants' motion to dismiss. The Court noted that, according to plaintiffs allegations, Lubavitch would in all likelihood apply for a permit the following year. Since defendants' policy required the issuance of a permit, the case fell within the "capable of repetition, yet evading review" exception to mootness, particularly because plaintiffs sought declaratory as well as injunctive relief. See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 121-22, 94 S.Ct. 1694, 1697-98, 40 L.Ed.2d 1 (1974).¹

Subsequently, defendants answered the complaint by denying plaintiffs' allegations and counterclaiming for a declaratory judgment that the practice of issuing the permit was proper under federal law and required by the Vermont Constitution.

With Hanukkah rapidly approaching, on November 22, 1988, the parties waived the right to trial on the factual issues in the case and submitted a lengthy stipulation of facts along with cross motions for judgment upon the stipulated facts.² The Court held an expedited hearing on the motions on November 30, 1988, at which time three additional exhibits were stipulated for admission.³ The Court accepts all stipulated facts and finds all exhibits as facts. Also, we take judicial notice that Hanukkah, falling every year on the twenty-fifth day of the Jewish month of Kislev, began this year on the evening of December 3.

Mindful that placement of the menorah was imminent pursuant to the newly-issued permit, the Court issued a short oral opinion and order denying plaintiffs' motion for judgment and granting defendants' motion insofar as it sought to dismiss the complaint. We dismissed defendants' counterclaim for a declaratory judgment, and stated that a more detailed, written opinion would follow. This Opinion seeks to clarify the reasons for the Court's oral ruling of November 30, 1988.

BACKGROUND

City Hall Park is located in Burlington, Vermont's largest city. It is a plot of land approximately two and one-half acres in size, bounded on the east by the Merchant's Bank, the Old Fire Station, and City Hall. The park is bounded on the south by Main Street, on the west by St. Paul Street, and on the north by College Street. Across each of these streets are numerous business establishments, including banks, restaurants, pharmacies, beauty salons and an Army-Navy surplus store. The Church Street Marketplace, an outdoor pedestrian shopping mall, lies just to the northeast of the Park. City Hall Park is a prominent location in Burlington, around which there is a great deal of vehicular traffic and through which there is a great deal of pedestrian traffic. The parties have stipulated that persons of all "stripes" frequent the Park.

The Park itself contains numerous trees, lampposts, and park benches. Cement public sidewalks border the park on all sides, separating it from the streets and from the Merchants Bank Building, the Old Fire House, and from City Hall. At its center is a circular fountain, and concrete diagonal walkways cross the Park from each corner to the fountain in the center. At the northwest corner of the Park stands a marble monument topped by an American Eagle in memory of Civil War dead. The central fountain is known as the Bicentennial Fountain. To its north is a world globe mounted on a wooden post intended to promote peace. On the eastern side of the Park, near the northern section of City Hall, is a flagpole and a monument which bears the inscription "Dedicated by the first Vermont Gold Star Mothers in Memory of the Boys who Made the Supreme Sacrifice." The Park contains several public phones.

The parties do not dispute that City Hall Park is a public forum. The Park was set aside for the use of the public by the original proprietors of Burlington on or about June 26, 1798. "Title" is in the public, with the City functioning as trustee over the property. The Park is frequently used by members of the public for special purposes, and Chapter 22, Appendix D, of the Code of Ordinances of the City of Burlington sets forth when permits are required for such uses. Pursuant to § 1(D)(2) and (3) of Appendix D, a Special Use Permit is required whenever a group of twenty or more persons will use the Park, or whenever reservation and exclusive use of the Park for a specific time and date or on a continued scheduled basis is sought.⁴ Within the last five years, approximately 300 permits annually have been issued. In recent years, no permit request has ever been denied. Most permits are for picnics, family reunions, softball, and the like, but the record indicates a substantial number of permits issued for commercial, religious, miscellaneous, and political or quasi-political activities. The parties agree that the Park is often used for activities involving the exercise of first amendment rights.

In 1986 and 1987, and now again in 1988, Lubavitch has been granted a permit to erect a menorah in City Hall Park during Hanukkah. During 1986 and 1987, the menorah remained in the Park during the entire eight-day period of Hanukkah each year; it is expected that the menorah will remain in the Park this year for at least an eight-day period. The menorah used each year was constructed in Burlington of wrought iron and measures approximately 12 feet wide by 16 feet high. It is a nine-pronged candelabra used to celebrate the Jewish "festival of lights", which commemorates the recapture of the Temple in Jerusalem from the Syrian Greeks in 165 B.C.E. In 1986, and again in 1987, a public lighting ceremony took place which was attended by over 100 people. It is assumed that such ceremony again took place this year on the first night of Hanukkah.

Affixed to the menorah was a sign which read: "Happy Chanukah" "Sponsored by: Lubavitch of Vermont" "Constructed by — Blackthorne Forge Material — Queen City Steel". The record does not indicate the exact size of the sign, but from the photographs it is evident that the sign was in width at least one-quarter the width of the menorah. Although unlighted, the lettering was in high contrast to the background of the sign, and thus was visible to some distance in a westerly direction from the menorah. The lettering on the sign was not directly visible from other directions.

The parties agree and have stipulated that the City of Burlington in no way sponsored, financed, erected, removed, or explicitly endorsed the menorah. Plaintiffs complain, in essence, that the placement of the menorah in City Hall Park — within the proximity of City Hall⁵ — conveys the appearance of government endorsement and thus violates the establishment clause of the first amendment. We disagree.

DISCUSSION

Establishment clause jurisprudence often ranks high in confusion, inconsistency, and emotional fervor. It has provoked an enduring and highly spirited debate, as is evidenced by the arguments in this case. The controversy is often fueled by those who advocate extreme positions: either absolute separation between religion and state — often bordering on state enmity to religion — or those who believe that government may aid religion, as long as it aids all creeds equally.

The Supreme Court's teachings in this area also fluctuate. The decisions map out only a wavering, uncertain course of what is permissible government activity. Each case is narrowly tied to its particular facts. Similarly, commentary by legal scholars and the opinions of the Circuit Courts parallel the Supreme Court's deep ideological divisions. The sheer volume of publication on the subject alone discourages judicial reference, particularly on the district court level.

In addition, only recently have the courts begun to address the boundary lines between establishment clause jurisprudence and the free speech provisions of the first amendment. Here, we are forced to strike a delicate balance between the rights of Lubavitch to free expression in a public forum, and the obligation of the City to avoid violating the establishment clause. As former Chief Justice Burger stated in Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745 (1971), "Candor compels acknowledgement ... that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law."

In Lemon v. Kurtzman, the Supreme Court conceded that its reference to a "wall of separation" between church and state (a metaphor taken from Thomas Jefferson and used in Everson v. Board of Education, 330 U.S. 1, 18, 67 S.Ct. 504, 513, 91 L.Ed. 711 (1948)), had been an unwise choice of metaphors. "The line of separation, far from being a `wall', is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship." 403 U.S. at 614, 91 S.Ct. at 2112....