Americans United for Separation of Church and State v. City of Grand Rapids

• Citation: 922 F.2d 303
• Decision Date: 13 December 1990
• Docket Number: No. 90-2337,90-2337
• Parties: AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, A Corporation; Benjamin Baum; Phyllis Ball; Walter Bergman; John Charles Bearden; Gilbert R. Davis, and James T. Weaver, Plaintiffs-Appellees, v. CITY OF GRAND RAPIDS, a Municipal Corporation, Defendant, v. CHABAD HOUSE OF WESTERN MICHIGAN, a Corporation, Intervenor-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 303

922 F.2d 303

18 Fed.R.Serv.3d 510

AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE, A

Corporation; Benjamin Baum; Phyllis Ball;

Walter Bergman; John Charles Bearden;

Gilbert R. Davis, and James T.

Weaver, Plaintiffs-Appellees, v. CITY OF GRAND RAPIDS, a Municipal Corporation, Defendant, v. CHABAD HOUSE OF WESTERN MICHIGAN, a Corporation, Intervenor-Appellant.

No. 90-2337.

United States Court of Appeals Sixth Circuit.

Dec. 13, 1990.

Albert Dilley, Grand Rapids, Mich., for plaintiffs-appellees.

G. Douglas Walton, Deputy City Atty., Grand Rapids, Mich., for defendant.

Richard G. Leonard, Douglas P. Vanden Berge, Rhoades, McKee, Boer, Goodrich & Titta, Grand Rapids, Mich., David G. Webbert, Nikki Kuckes, Bradford M. Berry, Nathan Lewin, David I. Gelfand, Miller, Cassidy, Larroca and Lewin, Washington, D.C., for intervenor-appellant.

Before GUY and BOGGS, Circuit Judges, and EDWARDS, Senior Circuit Judge.

I

BOGGS, Circuit Judge.

For the past six years, the City of Grand Rapids has permitted the Chabad House, an arm of the Lubavitch movement of the Jewish faith, to erect a privately-owned menorah in Calder Plaza, a publicly-owned area near a number of buildings of the City of Grand Rapids and other governments. The menorah remains during the season of Chanukah, a Jewish religious holiday lasting eight days in December. See County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 109 S.Ct. 3086, 3095-97, 106 L.Ed.2d 472 (1989).

This year, on November 13, a suit was filed against the City, challenging this action as a violation of the Establishment Clause of the first amendment and seeking an injunction to prevent the granting of a permit, or the carrying out of any action under a permit, if it were granted. On December 5, six days before the holiday was to begin, Judge Enslen granted an injunction against the City. He ruled from the bench, and we have no transcript or written opinion before us.

When Chabad learned that Grand Rapids might not appeal this decision, it sought to intervene. On Friday, December 7, four days before the start of Chanukah, Judge Enslen scheduled a hearing on the motion to intervene on December 18, at the end of Chanukah. This action would obviously have the effect of denying Chabad judicial review at a time when such review could be meaningful.

On Monday, December 10, Chabad appealed what it called a denial of its right to intervene and, assuming that it could intervene, filed a notice of appeal from the decision granting an injunction, and sought a stay.

II

Turning first to procedural matters, we believe Chabad can intervene as of right. Rule 24(a) reads as follows:

Upon timely intervention anyone shall be permitted to intervene in an action ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

An applicant for intervention as of right under Rule 24(a) must therefore, upon timely application, show three things. He must show that "(1) he claims an interest relating to the property or transaction that is the subject of the action, and (2) he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless (3) his interest is adequately represented by existing parties." 7C C. Wright and A. Miller, Federal Practice and Procedure, Sec. 1908.

We believe that Chabad meets all necessary requirements to qualify for intervention as of right. First, Chabad's application is clearly timely. Second, Chabad has an interest in the property that is the subject of the suit. Chabad owns the menorah, the disposition of which during Chanukah the plaintiffs are attempting to control. Any property owner has an interest in the disposition of his property during a particular span of time, and the fact that the property and the owner before us are inherently religious does not change that fact. See, e.g., Decker v. United States Department of Labor, 473 F.Supp. 770 (E.D.Wis.1979) (Archdiocese of Milwaukee held intervenors as of right in suit alleging that distribution of CETA funds to Archdiocese violates the Establishment Clause). Third, Chabad would be impaired or impeded in protecting its interest in the disposition of its menorah if it is not a party to this case. The court will decide whether it can place its menorah in Calder Plaza during the eight days of Chanukah, and Chabad would be prevented from so placing the menorah even if it were not a party. Fourth, Chabad's interest is not being adequately protected by any current party. The plaintiffs are clearly adversaries to Chabad's interest, and Chabad's original defender, the city of Grand Rapids, has abandoned that role by its failure to appeal. We agree with the District of Columbia Circuit that a decision not to appeal by an original party to the action can constitute inadequate representation of another party's interest. Smuck v. Hobson, 408 F.2d 175 (D.C.Cir.1969). The City's decision in this case effectively would destroy Chabad's ability to place its menorah in Calder Plaza during Chanukah absent Chabad's entry into this suit as an intervenor.

Having determined that Chabad qualifies for intervention as of right, we must decide if we are permitted to so hold at this stage in the proceedings. Denial by a district court of an application for intervention as of right under Rule 24(a) is appealable. United States v. Dallas County Commission, 850 F.2d 1433 (11th Cir.1988), cert. denied, 490 U.S. 1030, 109 S.Ct. 1768, 104 L.Ed.2d 203 (1989). However, we do not have a formal denial of Chabad's application before us. Judge Enslen merely delayed a hearing on Chabad's motion until the end of Chanukah. The question we must decide is whether such a delay is the practical equivalent of a denial of Chabad's application.

We hold that it is. We reach this conclusion by keeping in mind the purpose of Rule 24(a). "The general purpose of original Rule 24(a)(2) was to entitle an absentee, purportedly represented by a party, to intervene in an action if he could establish with a fair probability that the representation was inadequate." Notes of Advisory Committee on Rules, 1966 Amendment. Chabad's interest in this case will disappear when Chanukah ends. Grand Rapids's failure to appeal placed that interest at risk by removing from the action the only party who could argue to the court that the placement of Chabad's menorah in the Plaza for Chanukah was not unconstitutional. Delaying a hearing on Chabad's application until its interest is almost non-existent is tantamount to denying it. The spirit of Rule 24(a)(2), if not its letter, requires us to treat any order of a district court as a denial of an application to intervene that has the same effect on the intervenor's interest as would an outright denial.

We also hold that we will expedite this case by permitting Chabad to combine an appeal from the district court's injunction simultaneously with the application to intervene that permits them to make such an appeal. We note that had the district court granted Chabad's motion, as we hold that it should have, the court's order of injunction would be appealable as an interlocutory order. 28 U.S.C. Sec. 1292(a)(1). As Chabad's interest dissipates with every passing day, we would fail to enforce the purpose of Rule 24(a) if we did not permit it to appeal this decision in a timely fashion that permits it to protect that interest. The stay motions are therefore properly before us.

III

We must decide, therefore, whether we should stay Judge Enslen's order. Under Fed.R.App.P. 8(a), we must examine four factors when deciding whether to issue a stay. These factors are: 1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; 2) whether the applicant will be irreparably injured absent a stay; 3) whether issuance of the stay will substantially injure the other parties interested in the proceeding, and 4) where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 2119, 95 L.Ed.2d 724 (1987). No party seriously contends that the last three factors are relevant to our determination. We find that one party or the other will be irreparably harmed by a decision granting or denying the stay. The public interest lies in a correct application of the relation between the first amendment's guarantee of free speech and its bar to any law respecting the establishment of a religion.

Thus, the decision on the stay motion must turn on Chabad's likelihood of success on the merits in its appeal. We strongly emphasize that we are not now deciding the appeal. That must wait until full briefing and the opportunity for oral argument. At the same time, we are required to examine the merits and at least intimate an attitude toward them, while fully recognizing that our estimate of those merits is not binding on whatever panel will determine the ultimate appeal.

The number of cases concerning displays of allegedly religious objects in some proximity to or connection with public property, functions and events has become legion. See, e.g., Annotation, "Erection, Maintenance, or Display of Religious Structures or Symbols on Public Property as Violation of Religious Freedom," 36 A.L.R.3d 1256 (1971); Comment, Of Crosses and Creches: The Establishment Clause and Publicly Sponsored Displays of Religious Symbols, 35 Am. U.L.Rev. 477 (1986). However, this case has features that reduce the relevant precedents to a manageable number.

The object in question, a menorah, is privately-owned, erected and maintained. Its placement involves no use of public funds. The only direct involvement of the city is in granting a permit...