THIRTY v. Carlson
| Decision Date | 08 May 1995 |
| Docket Number | Civ. A. No. 94-2425-GTV. |
| Citation | 887 F. Supp. 1407 |
| Parties | Marc THIRY, Diane De Fries Thiry, and John D. De Fries Trust, Plaintiffs, v. E. Dean CARLSON, Kansas Secretary of Transportation, Kansas State Department of Transportation, City of Basehor, Kansas, City of Tonganoxie, Kansas, and County of Leavenworth, Kansas, Defendants, United States of America, Intervenor. |
| Court | U.S. District Court — District of Kansas |
Theodore J. Lickteig, Overland Park, KS, Todd M. Richardson, Leawood, KS, for Marc Thiry, Diane De Fries Thiry, John D. De Fries Trust.
Christina L. Morris, Office of U.S. Atty., Kansas City, MO, for U.S.
Vicky S. Johnson, Office of Chief Counsel, Gelene D. Savage, Kansas Dept. of Transp., John W. Strahan, Topeka, KS, Michael L. Johnston, Kan. Secretary of Transp.
Vicky S. Johnson, Michael B. Rees, Office of Chief Counsel Kansas Dept. of Transp., Topeka, KS, Gelene D. Savage, Michael J. Davis, Stinson, Mag & Fizzell, Kansas City, MO, John W. Strahan, Topeka, KS, for Kansas State Dept. of Transp., City of Basehor, County of Leavenworth, Kan., E. Dean Carlson, Secretary of Transp.
Vicky S. Johnson, Office of Chief Counsel Kansas Dept. of Transp., Topeka, KS, Michael J. Davis, Stinson, Mag & Fizzell, Kansas City, MO, City of Tonganoxie, Kan.
This is an action to enjoin the defendants from condemning certain real estate in Leavenworth County, Kansas, to be used in connection with a highway construction project. The court had previously granted plaintiffs' requests for a temporary restraining order and preliminary injunction. A trial to the court on the merits of the case was then held on March 20-21, 1995. This Memorandum and Order contains the court's findings of fact and conclusions of law made pursuant to Fed.R.Civ.P. 52(a). For the reasons stated herein, the court finds that plaintiffs are not entitled to the injunctive relief sought. Accordingly, the preliminary injunction will be dissolved and judgment will be entered in favor of defendants.
As part of a highway project, defendant Kansas Department of Transportation (KDOT) offered to purchase a 4.12 acre parcel of land which is part of a larger tract owned by plaintiff John D. De Fries Trust (the Trust) and on which plaintiffs Marc Thiry and Diane De Fries Thiry (the Thirys) reside. The Thirys objected to the project on the grounds that their stillborn baby is buried within the 4.12 acre parcel. The Thirys assert that the gravesite holds spiritual and religious significance for them and is a place of worship and prayer.
In their complaint filed on October 28, 1994, the plaintiffs sought to enjoin defendants from commencing condemnation proceedings and from beginning construction of the highway project. Plaintiffs asserted that KDOT's proposed action violated their rights under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb et seq. Plaintiffs also brought their action under 42 U.S.C. § 1983 and claimed that the highway project would violate their rights of free exercise of religion guaranteed by the First Amendment. Plaintiffs' final claim was also brought under § 1983 and alleged that the planned project would deprive the Thirys of their right to family unity and integrity, a liberty interest guaranteed by the Due Process Clause of the Fourteenth Amendment.
The court entered a temporary restraining order on October 28, 1994. After a continuance was granted at defendants' request, the court held a preliminary injunction hearing on December 12-13, 1994. At the conclusion of the hearing, the court granted in part plaintiffs' motion for preliminary injunction and enjoined defendants from taking possession of the property in question and from commencing any construction on the property. Defendants were, however, permitted to initiate eminent domain proceedings.
Defendants filed a motion to dismiss plaintiffs' RFRA claim on the grounds that RFRA is unconstitutional. The motion remained under advisement at the time of the trial. Because RFRA's constitutionality was challenged, the United States government was permitted to intervene for the purpose of addressing that issue. Further briefing on the question was deferred, however, until after the trial on the merits of the case. Based on the court's finding that the plaintiffs are not entitled to relief under RFRA, the constitutional question need not be addressed.
A trial to the court was held on March 20 and 21, 1995. The record on which the case was submitted to the court includes the testimony and evidence received at both the trial and the preliminary injunction hearing, pursuant to Fed.R.Civ.P. 65(a)(2). Following are the court's findings of fact and conclusions of law.
1. Plaintiffs Marc and Diane De Fries Thiry, husband and wife, reside in Tonganoxie, Kansas, on property known as Stranger Creek Ranch.
2. Legal title to the property on which the Thirys reside is held by the John D. De Fries Trust. Diane De Fries Thiry is a beneficiary of the Trust.
3. Defendant E. Dean Carlson is Kansas Secretary of Transportation, and is a defendant in this action in his official capacity only.
4. KDOT is an agency of the State of Kansas. The cities of Basehor and Tonganoxie and the County of Leavenworth are all political subdivisions of the State of Kansas.
5. Intervenor United States of America contends that the RFRA, 42 U.S.C. §§ 2000bb et seq., is constitutional, and has intervened in this action for the sole purpose of addressing that issue. The United States took no part in the preliminary injunction hearing or in the trial.
6. The Thirys reside on a 151-acre tract in Leavenworth County, Kansas, which is owned by the Trust.
7. KDOT has designed highway improvement plans which include constructing a "turnaround", or wider median, on a portion of U.S. Highway 24 which adjoins the property on which the Thirys reside.
8. In order the widen the highway, KDOT has proposed taking a 4-acre parcel of land which is located on the Southeast portion of the property on which the Thirys reside. The Thirys first became aware of this proposed taking in November 1993.
9. Included within this 4-acre parcel is a gravesite where the remains of the Thirys' stillborn baby, Qatlin Soux De Fries Thiry, are buried. The stillbirth occurred on August 28, 1992, the remains were cremated, and the burial took place in March or April, 1993.
10. A large, red quartzite boulder serves as the headstone for the grave. The Thirys later placed a wooden cross about three feet tall at the gravesite.
11. Diane De Fries Thiry is one-thirty-second Delaware Indian. She believes in and practices many tenets of American Indian spirituality which include beliefs in a God as creator, the sanctity of all life, life after death, and the sanctity of gravesites.
12. Diane De Fries Thiry also believes in and practices many tenets of Quakerism and Christianity. These beliefs include baptism by the Holy Spirit rather than by water, peaceable resistance on matters of disagreement, an absence of ritual in worship, a direct relationship with God by an individual without the need for clergy, and sharing of experiences with God in worship services. The Thirys were married in November 1989 at the Stanwood Friends Meeting in McLouth, Kansas, in a Quaker service.
13. Marc Thiry believes in and practices many tenets of Christianity which include observance of a sabbath, or day of rest, the Ten Commandments, God as creator and supreme being, and the existence of sacred places. Marc Thiry also believes in and practices many tenets of American Indian spirituality which include reverence for all things created by God and harmony with other life forms on earth.
14. The area immediately surrounding the red boulder, including the gravesite, is a place which holds special meaning for the Thirys. Diane De Fries Thiry has gone to that area to pray since she was seven years old. The area was also a place of prayer for Marc Thiry prior to his marriage to Diane. The Thirys practice their religious beliefs by visiting the area to be near the spirit of their deceased child and to worship and pray. The Thirys plan to be buried alongside the grave of their child.
15. The Thirys believe that their religious beliefs and practices will continue even if KDOT is allowed to proceed with its condemnation action and construction of the planned highway improvements. The Thirys have in the past prayed, worshiped, and felt a closeness with God at places other than the area around the red boulder.
16. The Thirys have maintained a closeness with the spirit of their daughter continuously since her death, even during the six to seven months before her burial.
17. Christian beliefs in the sanctity of burial sites are not violated by moving gravesites when necessary, and moving the gravesite would not be inconsistent with tenets of American Indian spirituality if the Thirys believed it to be necessary. Although a site for prayer and worship is important to Quakers, a basic tenet of Quakerism is that God is within individuals and one particular location is no more or less sacred than another. Despite their beliefs in the sanctity of burial sites, the Thirys would agree to move their child's grave if they believed that it was required in order to build a safe highway.
18. The highway project at issue in this case is part of a state-wide program to upgrade safety on Kansas highways and promote economic development. The program was enacted by the Kansas Legislature in 1989.
19. The project includes improving U.S. Highway 24 between Tonganoxie and Basehor by constructing a four-lane limited access highway in place of the current two-lane highway. Approximately $30 million has been invested in this project.
20. On November 18, 1991, the cities of Basehor and Tonganoxie and the County of Leavenworth...
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