Alabama Freethought Ass'n v. Moore, CV 95-PT-0792-M.

Decision Date07 July 1995
Docket NumberNo. CV 95-PT-0792-M.,CV 95-PT-0792-M.
PartiesThe ALABAMA FREETHOUGHT ASSOCIATION, Gloria Hersheiser, Barbara Stappenbeck, and Herb Stappenbeck, Plaintiffs, v. The Honorable Roy S. MOORE, Defendant.
CourtU.S. District Court — Northern District of Alabama

COPYRIGHT MATERIAL OMITTED

Pamela L. Sumners and Elizabeth J. Hubertz, Birmingham, AL, Joel Sogol, Tuscaloosa, AL, for plaintiff.

Albert L. Jordan, Algert S. Agricola, Jr., Wallace Jordan Ratliff Byers & Brandt, LLC, Birmingham, AL, for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

PROPST, District Judge.

The complaint in this action charges that defendant, a judge in the Circuit Court of Etowah County, Alabama, has caused a plaque depicting the Ten Commandments to be hung behind the bench in his courtroom in the Etowah County Courthouse. The complaint also alleges that, in presiding over jury organizing sessions, defendant has caused prayer to be uttered. On these facts, plaintiffs allege that defendant is violating the Establishment Clause of the First Amendment. Plaintiffs seek a declaratory judgment that defendant is in violation of the First Amendment, and an injunction barring defendant from displaying the plaque behind his bench and from causing prayer to be uttered at jury organizing sessions.1

On April 21, 1995, defendant filed a Motion to Dismiss, or in the Alternative, for Stay. On April 28, 1995, defendant filed an Amended Motion to Dismiss, or in the Alternative, for Stay. The court is considering these Motions.

The issues presented by the Motions are twofold:

1. whether plaintiffs have standing, as either citizens or taxpayers,2 to maintain this action; and
2. whether, assuming that plaintiffs have standing, the court should abstain from exercising jurisdiction.
FINDINGS OF FACT
I. The allegations in support of standing.

The allegations in the complaint pertinent to standing are as follows:

4. Plaintiff Alabama Freethought Association is a non-profit association which has as one of its primary concerns the separation of church and state as guaranteed by the United States Constitution and the Constitution of the State of Alabama. A number of its members reside in Etowah County, Alabama, and are subject to attending Judge Moore's courtroom in Gadsden, either as jurors, litigants, witnesses or observers, and being forced to listen to the opening prayer in Defendant's courtroom and observe his religious symbol(s). These members are, or would be, offended by Defendant's unconstitutional prayer and display and must, therefore, assume special burdens to avoid Defendant's unconstitutional conduct.
5. Plaintiffs Gloria Hersheiser, Barbara Stappenbeck and Herb Stappenbeck are resident citizens and taxpayers of Etowah County, Alabama, and are subject to attending Judge Moore's courtroom in Gadsden, either as jurors, litigants, witnesses or observers, and being forced to listen to his opening prayer and observe his religious symbol(s). Plaintiffs are and will continue to be offended by Defendant's unconstitutional prayer and display and must, therefore, assume special burdens to avoid Defendant's unconstitutional conduct.
6. All Plaintiffs object to Defendant's practice of opening court with prayer and his display of religious symbol(s), and believe that this practice violates the First and Fourteenth Amendments to the United States Constitution. Plaintiffs Hersheiser, Stappenbeck and Stappenbeck are taxpayers in Etowah County, Alabama, and the State of Alabama. Plaintiff Alabama Freethought Association has, as members, persons who are taxpayers in Etowah County, Alabama, and the State of Alabama. All Plaintiffs are of the opinion that the Defendant's conduct is an attempt by a Judge to symbolize government approval and endorsement of religion. Each Plaintiff is offended by Defendant's conduct. All Plaintiffs believe their rights have been infringed by the Defendant's conduct.
....
14. There is between the parties an actual controversy as hereinbefore set forth. The Plaintiffs are suffering irreparable injury and harm and are threatened with irreparable injury and harm in the future be reason of the acts herein complained of. A substantial loss or impairment of the Plaintiffs' rights under the First Amendment to the Constitution of the United States has occurred and will continue to occur so long as the Defendant's conduct is allowed to continue. The Defendant's display of the Ten Commandments and the use of Christian prayer to open his court exerts a chilling effect on Plaintiff's First Amendment religious protection in that these acts send a message to Plaintiffs, attorneys, litigants and all others who enter the Courthouse that the Defendant and the judicial system encourage and endorse the practices of religion in general and the practice of Christianity in particular, favor Christians in the application of law and the administration of justice.

Complaint at 2-4 (emphasis added).

II. The evidence offered by plaintiffs in support of standing.

In response to the motions, plaintiffs have filed affidavits which set forth facts allegedly supporting each plaintiff's standing. Plaintiff Gloria Hersheiser's relevant testimony by affidavit is as follows:

3. I have been present in Judge Roy S. Moore's courtroom in the Etowah County Courthouse in Gadsden, Alabama on more than one occasion. While there, on at least one occasion, I observed what appeared to be a hand carved plaque of the Ten Commandments on the wall behind his bench in the courtroom and I heard Judge Moore invite a guest to open the court session with prayer. The prayer I heard was a distinctly Christian prayer.3
4. Within approximately the last two years, I have been subpoenaed to testify before Judge Moore in a pending divorce case. I do not recall the case style nor the case number. Though I appeared for court as required, I was not called to testify.
5. I am a registered voter in Etowah County, Alabama. I have been called and have served on the grand jury and as a jury member for a trial in Etowah County, Alabama. I remain subject to being called for jury duty in Etowah County, Alabama.
6. I am currently a party to the following action pending in small claims court in Etowah County, Alabama: James W. Jones v. Gloria Hersheiser, Case No. SM-95-001043.00, before District Court Judge Wayne Owen. I understand that if my small claims case is appealed, it would be appealed to the Circuit Court of Etowah County, Alabama.4
7. I am offended by Judge Moore's initiation of prayer and by his display of the Ten Commandments in his courtroom.

Affidavit of Gloria Hersheiser, Plaintiffs' Exh. A,5 at 1. Plaintiffs Barbara and Herb Stappenbeck repeat most of paragraphs 5 and 7 of Hersheiser's affidavit.6 See Affidavit of Barbara Stappenbeck, Plaintiffs' Exh. B, at 1; Affidavit of Herb Stappenbeck, Plaintiffs' Exh. C, at 1. To establish its standing, plaintiff Alabama Freethought Association relies on the standing of plaintiff Hersheiser and of unnamed members who are allegedly subject to being called to defendant's court as jurors, witnesses, or parties. Affidavit of Pat Cleveland, plaintiffs' Exh. D, at 1. There has been no evidence presented to suggest that any such member other than Hersheiser has ever been so called.

III. The testimony and evidence received at the evidentiary hearing of June 14, 1995.

The court received evidence and testimony on the issue of standing at a hearing convened on June 14, 1995.7 From the testimony8 at the hearing and the affidavits, the court finds the following facts as to each plaintiff:

A. Gloria Hersheiser

1. Gloria Hersheiser is a resident of, a registered voter in, and a taxpayer of Etowah County, Alabama.

2. Hersheiser owns a vehicle which is registered in her name in Etowah County, Alabama.

3. Hersheiser has been a dues-paying member of the Alabama Freethought Association since July, 1994.

4. Hersheiser has been summoned for jury service in the Circuit Court of Etowah County on two occasions. She was first summoned for service in the late 1960s, at which time she served on a grand jury. Several years later, she was again summoned for service, at which time she served on a petit jury. In her estimation, this more recent service occurred at least 15 years ago,9 well before defendant became a circuit judge.

5. By virtue of her status as a registered voter, as a person in whose name a motor vehicle is registered, and as a person who is the record owner of real property subject to ad valorem taxation, Hersheiser remains subject to being summoned for jury service in the Circuit Court of Etowah County.10

6. Approximately 18 months ago, Hersheiser was subpoenaed to testify in a domestic relations case scheduled for trial in defendant's court. Upon entering defendant's courtroom on that occasion, she observed a plaque in the shape of tablets hanging behind defendant's bench, on which were inscribed the Ten Commandments.11 Hersheiser could read the inscriptions with the aid of her glasses, which she testified that she was wearing on that occasion. She remained in the courtroom for only a few minutes. Thereafter, she sat on a bench outside the courtroom, around which other participants in the trial were gathering. Hersheiser was never called into defendant's courtroom as a witness. She was not required to be in the courtroom while other witnesses testified. She was offended, during her brief stay, by the display of the Ten Commandments because it is a religious symbol.

7. Sometime around April 15, 1995, after this action had been commenced,12 Hersheiser voluntarily attended a jury organizing session in a courtroom in the Etowah County Courthouse.13 Several members of the press, including television camera operators, were present on that occasion.14 At the commencement of this session, defendant, who was presiding, informed those assembled that the session would begin with a prayer and, thereafter, the reciting of the Pledge of...

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