849 F.3d 266 (6th Cir. 2017), 15-1869, Bormuth v. County of Jackson

Docket Nº:15-1869
Citation:849 F.3d 266
Opinion Judge:KAREN NELSON MOORE, Circuit Judge.
Party Name:PETER CARL BORMUTH, Plaintiff-Appellant, v. COUNTY OF JACKSON, Defendant-Appellee
Attorney:Gregory M. Lipper, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, Washington, D.C., for Amicus Curiae. Richard D. McNulty, COHL, STOKER & TOSKEY, P.C., Lansing, Michigan, for Appellee. Peter Bormuth, Pro se, Jackson, Michigan. Gregory M. Lipper, Richard B. Katskee, AMERICANS UNITED FOR SEPA...
Judge Panel:Before: MOORE, GRIFFIN, and STRANCH, Circuit Judges. MOORE, J., delivered the opinion of the court in which STRANCH, J., joined. GRIFFIN, J., delivered a separate dissenting opinion. GRIFFIN, Circuit Judge, dissenting.
Case Date:February 15, 2017
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
SUMMARY

The Jackson County Michigan Board of Commissioners begins its monthly meetings with a Christian prayer. Bormuth, a non-Christian county resident, attended meetings because he was concerned about environmental issues. During the prayer, Bormuth was the only one in attendance who did not rise and bow his head. Bormuth felt isolated, and worried that the Commissioners would hold against him his... (see full summary)

 
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849 F.3d 266 (6th Cir. 2017)

PETER CARL BORMUTH, Plaintiff-Appellant,

v.

COUNTY OF JACKSON, Defendant-Appellee

No. 15-1869

United States Court of Appeals, Sixth Circuit

February 15, 2017

Argued April 19, 2016.

Page 267

[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:13-cv-13726--Marianne O. Battani, District Judge.

ARGUED:

Gregory M. Lipper, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, Washington, D.C., for Amicus Curiae.

Richard D. McNulty, COHL, STOKER & TOSKEY, P.C., Lansing, Michigan, for Appellee.

Peter Bormuth, Pro se, Jackson, Michigan.

ON BRIEF:

Gregory M. Lipper, Richard B. Katskee, AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, Washington, D.C., for Amicus Curiae.

Before: MOORE, GRIFFIN, and STRANCH, Circuit Judges. MOORE, J., delivered the opinion of the court in which STRANCH, J., joined. GRIFFIN, J., delivered a separate dissenting opinion.

OPINION

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KAREN NELSON MOORE, Circuit Judge.

The Board of Commissioners in Jackson County, Michigan begins its monthly meetings with a prayer. Peter Bormuth, a resident of Jackson County, filed suit against the County asserting that this prayer practice violates the First Amendment's Establishment Clause. The district court granted the County's motion for summary judgment and denied Bormuth's motion for summary judgment, and Bormuth now appeals. We hold that the district court erred in rejecting Bormuth's argument that the prayer practice coerced residents to support and participate in the exercise of religion. Accordingly, we REVERSE the district court's grant of summary judgment to the County and REMAND for entry of summary judgment in Bormuth's favor and for further proceedings consistent with this opinion.

I. BACKGROUND

The facts in this case are not in dispute. The Jackson County Board of Commissioners has nine members, including a Chairman, who are elected by the people of Jackson County. In addition to overseeing other Jackson County bodies, the Board of Commissioners holds monthly meetings to address matters of local concern. Each meeting begins with a call to order, after which the Chairman directs those in attendance to " rise" and " assume a reverent position." R. 10 (Am. Compl. ¶ ¶ 17, 19) (Page ID #64-65). Then one of the Commissioners--all of whom are Christian--delivers a prayer. Id. ¶ ¶ 19-23 (Page ID #64-66). Immediately after the prayer, the Board of Commissioners invites residents, often children, to lead attendees in the Pledge of Allegiance. Id. ¶ 17 (Page ID #64). The Board of Commissioners' meetings are open to the public and, for citizens who are unable to attend, are videotaped and posted on Jackson County's website. Id. ¶ 16 (Page ID #64).

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Bormuth is a self-described Pagan and Animist. Id. ¶ 13 (Page ID #63). He believes in the " attribution of conscious life to objects in and phenomena of nature" and the " existence of spirits separable from bodies." Id. (emphasis removed) (internal quotation marks omitted). Bormuth worships the Sun and the Moon, as well as ancestral spirits, but his " primary deity is the Mother Earth." Id. He has written essays, poetry, and music on the subject. Id. Deeply concerned with environmental issues, Bormuth started attending the Board of Commissioners' monthly meetings because he believed that the County was releasing pollutants into a local river. Id.

In July 2013, Bormuth attended the Board of Commissioners' meeting to speak about closing the Jackson County Resource Recovery Facility, the mass-burn waste combustor that he believed was polluting the local river. Id. ¶ 25 (Page ID #66-67). At the meeting, after the Chairman said " all rise," one of the Commissioners gave the following prayer: Bow your heads with me please. Heavenly father we thank you for this day and for this time that we have come together. Lord we ask that you would be with us while we conduct the business of Jackson County. Lord help us to make good decisions that will be best for generations to come. We ask that you would bless our troops that protect us near and far, be with them and their families. Now Lord we wanna [sic] give you all the thanks and all the praise for all that you do. Lord I wanna [sic] remember bereaved families tonight too, that you would be with them and take them through difficult times. We ask these things in your son Jesus's name. Amen.

Id. ¶ 23 (Page ID #65-66). As a Pagan and an Animist, Bormuth was uncomfortable with the Commissioner's prayer. Id. ¶ 24 (Page ID #66). He felt like he was being forced to participate in a religion to which he did not subscribe in order to bring a matter of concern to his local government. Id.

Bormuth attended the Board of Commissioners' August 2013 meeting as well. Id. ¶ 28 (Page ID #68). A Commissioner opened the meeting with the following prayer: Please rise. Please bow our heads. Our heavenly father we thank you for allowing us to gather here in your presence tonight. We ask that you watch over us and keep your guiding hand on our shoulder as we deliberate tonight. Please protect and watch over the men and women serving this great nation, whether at home or abroad, as well as our police officers and firefighters. In this we pray, in Jesus name, Amen.

Id. During the prayer, Bormuth was the only one in attendance who did not rise and bow his head. Id. ¶ 29 (Page ID #68). Bormuth felt isolated, and he worried that the Board of Commissioners would hold against him his decision to stay seated. Id.

On the agenda for the August 2013 meeting was whether Jackson County employees with concealed-weapons permits could carry handguns at work. Id. ¶ 30 (Page ID #68-69). Following a discussion of Second Amendment rights, the Board of Commissioners voted in favor of the County employees who wished to carry handguns at work. See id. During the public-comment period, Bormuth stood and addressed the Board of Commissioners, calling attention to what he believed was an equally important constitutional issue: First Amendment rights. Id. ¶ 31 (Page ID #69). Bormuth told the Commissioners that he thought that the monthly prayers violated the Establishment Clause and criticized the Commissioners for selectively following the Bill of Rights. Id. While

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Bormuth was speaking, one of the Commissioners " made faces expressing his disgust" and then turned his chair around, refusing to look at Bormuth while he spoke. Id. The Commissioner's reaction " confirm[ed] [Bormuth's] fear[]" that his refusal to join the prayers would prejudice the Board of Commissioners against him. Id. Bormuth filed suit against the County ten days later, alleging that the prayer practice violated the Establishment Clause. R. 1 (Compl.) (Page ID #1).

While Bormuth's suit was pending before the district court, the Board of Commissioners nominated residents to the County's new Solid Waste Planning Committee. R. 10 (Am. Compl. ¶ 33) (Page ID #69). Although Bormuth had applied to serve on the Solid Waste Planning Committee, and had three years of experience working on related issues, the Board of Commissioners did not nominate him. Id. Bormuth surmised that this had something to do with his suit against the County. Indeed, an article published shortly after Bormuth filed his federal complaint revealed the Commissioners' disapproval of the suit, quoting one Commissioner as saying, " Bormuth 'is attacking us and, from my perspective, my Lord and savior Jesus Christ,'" and another Commissioner as remarking, " All this political correctness, after a while I get sick of it." R. 14 (Pl. First Mot. for Summ. J., Ex. C) (Page ID #149). Bormuth filed an amended complaint addressing the Board of Commissioners' decision not to nominate him to the Solid Waste Planning Committee. R. 10 (Am. Compl. ¶ 33) (Page ID #69). He again alleged that the County was violating the Establishment Clause and asked for declaratory and injunctive relief as well as nominal damages. Id. ¶ ¶ 37, 44-50 (Page ID #70-71, 83-84).

Bormuth moved for summary judgment a month later. R. 14 (Pl. First Mot. for Summ. J.) (Page ID #107). In response, the County asked the district court to hold the case in abeyance pending the Supreme Court's decision in Town of Greece v. Galloway, 134 S.Ct. 1811, 188 L.Ed.2d 835 (2014). R. 16 (Def. Resp. to Pl. First Mot. for Summ. J. at 18) (Page ID #173). The district court did not hold the case in abeyance, but it did not rule on the motion for summary judgment either, and in May 2014 the Supreme Court issued its decision in Town of Greece. The County filed a motion for summary judgment in light of the Court's opinion. R. 25 (Def. Mot. for Summ. J.) (Page ID #244). The district court terminated Bormuth's first motion for summary judgment and invited him to file a second motion for summary judgment addressing Town of Greece, which he did. R. 32 (Order Terminating Mot. at 1-2) (Page ID #430-31); R. 37 (Pl. Second Mot. for Summ. J.) (Page ID #509).

While the parties were briefing their motions for summary judgment, they were also embroiled in two discovery disputes. The first dispute involved Bormuth's efforts to take depositions. Bormuth sent the County notices of his intent to depose the Commissioners, R. 24-2 (Notices of Deps.) (Page ID #226), in order to obtain " information relating to [Bormuth's] activities regarding the Jackson County Resource Recovery Facility," as well as information on the Board of Commissioners' practice of opening meetings with prayer and on its use of children to lead the Pledge of Allegiance following the prayer, R. 24-3 (Pl. Corrected Rule 26(a)(1) Disclosures at 1) (Page ID #236). The County filed a motion to quash,...

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