Americans United v. City of Grand Rapids
| Decision Date | 21 December 1990 |
| Docket Number | No. 1:90-CV-946.,1:90-CV-946. |
| Citation | 784 F. Supp. 403 |
| 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, v. CITY OF GRAND RAPIDS, a municipal corporation, Defendant. |
| Court | U.S. District Court — Western District of Michigan |
Albert R. Dilley, Grand Rapids, Mich., for plaintiffs.
G. Douglas Walton, Deputy City Atty., Philip A. Balkema, City Atty., Grand Rapids, Mich., for defendant.
Richard G. Leonard, Rhoades, McKee, Boer, Goodrich & Titta, Grand Rapids, Mich., Nathan Lewin, David G. Webbert, Niki Kuckes, David I. Gelfand, Miller, Cassidy, Larroca & Lewin, Washington, D.C., for Chabad House of Western Michigan, Inc.
OPINION
This matter is before the Court on plaintiffs' motion for a preliminary injunction. On November 13, 1990, plaintiffs filed their motion, and defendants responded on November 21, 1990. Plaintiffs filed a reply brief on November 30, 1990. The Court heard argument on the motion on December 5, 1990, and because of the imminent approach of the Chanukah season, the Court issued an oral opinion from the bench. The Court stated that it would issue a written opinion, at a later date, allowing the Court to present its thoughts on this matter in a more organized form. What follows is the Court's written opinion, substantially similar to its oral opinion of December 5, 1990, although perhaps a bit more thorough and "polished."
Plaintiffs are an association known as Americans United for Separation of Church and State ("Americans United") and a group of individuals. Their motion seeks to restrain the defendant, the City of Grand Rapids, from issuing a permit for the placement of a Chanukah menorah on Calder Plaza during the upcoming eight-day holiday which begins on the evening of December 11, 1990.1 Plaintiffs' action is brought pursuant to 42 U.S.C. § 1983. Jurisdiction is conferred on this Court by 28 U.S.C. § 1343(a)(3). Plaintiffs claim that the action of the Grand Rapids government, in permitting the menorah display on Calder Plaza, is an act respecting an establishment of religion in violation of the first amendment to the United States Constitution.
Beginning in 1984, Rabbi Yosef Weingarten, Director of Chabad House of Western Michigan, has annually requested and received permission to erect a twenty foot steel menorah on Calder Plaza for a ten-day period. The application for the permit has a filing fee of $2.50. All costs associated with the display of the menorah are paid for with private funds. The City has no role in the planning, construction, erection, removal or storage of the menorah.
Every year since 1984 there has been a large 2' × 3' visible sign displayed on or immediately adjacent to the menorah. The sign reads:
Beginning in 1989, two such signs have been posted.
Calder Plaza is located in the heart of the governmental building section of downtown Grand Rapids. It is approximately four and one-half (4½) acres in size and is principally concrete with planting beds on the perimeter containing grass, flowers and trees. Located on Calder Plaza are the City Hall and the County Building for the County of Kent. Immediately adjacent is the Federal Courthouse and across the street is a State of Michigan Building and the Kent County Probate Court Building. On the other side of the plaza is the police station and the District and Circuit Court Building for the City of Grand Rapids and the County of Kent.
On the northeast quadrant of Calder Plaza is a large sculpture by Alexander Calder, for whom the plaza is named. The sculpture is entitled, "La Grande Vitesse," which means "the great swiftness" or "the grand rapids"; this statue is a recognized symbol of the City of Grand Rapids.
The menorah has traditionally been placed in the southeast quadrant of Calder Plaza close to steps leading to the public sidewalk and adjacent to flagpoles displaying the United States, Kent County and City of Grand Rapids flags. Defendant represents, and plaintiff does not dispute, that the menorah is approximately 162' from the County Building and 256' from City Hall. Plaintiff states that the menorah is 50 feet away from Ottawa Avenue, whereas defendant believes it to be about 30 feet. This difference is not important to the matter at hand, and I note that the distance would differ depending upon which lane of traffic a car was traveling in on Ottawa Avenue.
In deciding whether to grant or deny a preliminary injunction, the Court must balance four well-known factors. These factors are:
Forry, Inc. v. Neundorfer, Inc., 837 F.2d 259, 262 (6th Cir.1988); Mason County Medical Ass'n v. Knebel, 563 F.2d 256, 261 (6th Cir.1977).
The purpose of the preliminary injunction is to preserve the status quo pending final determination of the lawsuit. University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981). Preliminary injunctions are addressed to the discretion of the district court. Synanon Foundation, Inc. v. California, 444 U.S. 1307, 100 S.Ct. 496, 62 L.Ed.2d 454 (1979). This type of relief is an extraordinary remedy best used sparingly. Roghan v. Block, 590 F.Supp. 150 (W.D.Mich.1984), aff'd, 790 F.2d 540 (6th Cir.1986).
The Sixth Circuit has cautioned courts that they should not view the four factors as prerequisites to relief, but rather as factors to be balanced. In re DeLorean Motor Co., 755 F.2d 1223 (6th Cir.1985). Thus, a court can enter a preliminary injunction if it finds that the plaintiff "at least shows serious questions going to the merits and irreparable harm which decidedly outweighs any potential harm to the defendant if an injunction is issued." Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 105 (6th Cir. 1982). "Where the burden of the injunction would weigh as heavily on the defendant as on the plaintiff , however, the plaintiff must make a showing of at least a `strong probability of success on the merits' before a trial court would be justified in issuing the order." Frisch's Restaurant, Inc. v. Shoney's, Inc., 759 F.2d 1261, 1270 (6th Cir.1985). Also, as the strength of showing as to irreparable harm increases, the necessity to show likelihood of success on the merits decreases. Ardister v. Mansour, 627 F.Supp. 641, 644 (W.D.Mich. 1986). Yet, in spite of the overall flexibility of the test for preliminary injunctive relief, the Sixth Circuit has stated that the irreparable harm element is to be analyzed carefully. In Friendship Materials, the court said:
Despite the overall flexibility of the test for preliminary injunctive relief, and the discretion vested in the district court, equity has traditionally required a showing of irreparable harm before an interlocutory injunction may be issued.
Before applying the four factors to this case, the Court must address the standing of the plaintiffs to bring this action. Defendant has raised the issue of standing, arguing that plaintiffs do not have standing as taxpayers to object to the presence of the menorah, because no tax money is used to fund its presence. It is clear that no tax funds are expended for the upkeep, maintenance or erection of the menorah, and as such, taxpayer standing is not an option open to plaintiffs. See, American Civil Liberties Union v. City of St. Charles, 794 F.2d 265, 267 (7th Cir.), cert. denied, 479 U.S. 961, 107 S.Ct. 458, 93 L.Ed.2d 403 (1986); Brashich v. Port Authority of New York, 484 F.Supp. 697, 702 (S.D.N.Y.1979), aff'd, 628 F.2d 1344 (2nd Cir.1980).
Recent Supreme Court authority seems to indicate that plaintiffs have standing to maintain this suit without specifically discussing the issue of standing. See Allegheny County v. ACLU, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (); Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (). In a recent Fourth Circuit case decided after the recent Supreme Court decision in Allegheny, the court found that the plaintiffs, individual residents of Albemarle County, did have standing to bring suit objecting to the erection of a creche by a private organization on the front lawn of the County Office Building. Smith v. County of Albemarle, Va., 895 F.2d 953, 955 (4th Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 74, 112 L.Ed.2d 48 (1990).
A more detailed analysis of the issue of standing appears in ACLU v. City of St. Charles, 794 F.2d 265 (7th Cir.1986). In St. Charles, the plaintiffs, the ACLU of Illinois and two individuals, brought suit to enjoin the city's display of a lighted Latin Cross during the Christmas season. The court stated that the ACLU had alleged no injury to itself and thus its standing depended on that of its members, the individual plaintiff. The court noted that "the fact that the plaintiffs do not like a cross to be displayed on public property — even that they are deeply offended by such a display — does not confer standing." St. Charles, 794 F.2d at 268 (citing Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S....
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Americans United v. City of Grand Rapids, 1:90-CV-946.
...the plaintiffs' motion and enjoined defendant from issuing a permit allowing the erection of a menorah on Calder Plaza. On December 21, 1990, 784 F.Supp. 403, the Court issued a written opinion that was substantially similar to its oral opinion of December 5, 1990. On December 7, 1990, two ......