Atheists of Fla., Inc. v. City of Lakeland, Case No. 8:10–cv–1538–T–17–MAP.

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Writing for the CourtELIZABETH A. KOVACHEVICH
Citation838 F.Supp.2d 1293
PartiesATHEISTS OF FLORIDA, INC., and Ellenbeth Wachs, Plaintiffs, v. CITY OF LAKELAND, FLORIDA and Mayor Gow Fields, Defendants.
Decision Date22 February 2012
Docket NumberCase No. 8:10–cv–1538–T–17–MAP.

838 F.Supp.2d 1293

ATHEISTS OF FLORIDA, INC., and Ellenbeth Wachs, Plaintiffs,
v.
CITY OF LAKELAND, FLORIDA and Mayor Gow Fields, Defendants.

Case No. 8:10–cv–1538–T–17–MAP.

United States District Court,
M.D. Florida,
Tampa Division.

Feb. 22, 2012.


[838 F.Supp.2d 1294]


Eric O. Husby, Law Offices of Eric O. Husby, PA, Tampa, FL, for Plaintiffs.

Kristie Hatcher–Bolin, Mark Nelson Miller, GrayRobinson, PA, Lakeland, FL, for Defendants.

[838 F.Supp.2d 1295]


ORDER ON MOTIONS FOR SUMMARY JUDGMENT

ELIZABETH A. KOVACHEVICH, District Judge.

This cause is before the Court on Defendant Gow Fields' Motion for Summary Judgment (Dkt. 30), Defendant City of Lakeland's Motion for Summary Judgment (Dkt. 34), Plaintiffs Atheists of Florida, Inc. and Ellenbeth Wachs' Motion for Summary Judgment (Dkt. 46), and the responses thereto (Docs. 49, 51, 52). For the reasons set forth below, Defendants' Motions for Summary Judgment are GRANTED and Plaintiffs' Motion for Summary Judgment is DENIED.

PROCEDURAL HISTORY

Plaintiffs, Atheists of Florida, Inc. and Ellenbeth Wachs (hereinafter “Plaintiffs”), filed their First Amended Verified Complaint on August 18, 2010, challenging Defendants, City of Lakeland and Mayor Gow Fields' (hereinafter collectively referred to as “City” or “Defendants”), practice of allowing religious ministers to perform invocations before each meeting of the Lakeland City Commission. Atheists of Florida is a non-profit organization that “seeks freedom of and from religion [and] equal treatment under the law.” (Dkt. 10, ¶ 15). Plaintiff Ellenbeth Wachs is the Director of the Lakeland Chapter of the Atheists of Florida. Plaintiffs assert violations of 42 U.S.C. § 1983 with regard to the Establishment Clause (Count I), the Equal Protection Clause (Count III), and the Freedom of Speech Clause (Count IV) of the United States Constitution, and also set out a claim under the Establishment Clause of the Florida Constitution (Count II). Plaintiffs allege that the City directs and controls the “content of prayers” through the selection process and that those citizens attending City Commission meetings “are effectively forced to stand and bow their heads and either acknowledge and express approval of the prayers, or be singled out.” (Dkt. 10, ¶ 148). Plaintiffs seek declaratory relief pronouncing the Lakeland City Commission's invocation practice unconstitutional, injunctive relief preventing Defendants from continuing the practice, nominal money damages, and attorney's fees pursuant to 42 U.S.C. § 1988. In an order dated March 15, 2011, this Court granted Defendants' Motion to Dismiss with regard to Counts III and IV of the complaint, leaving only Counts I and II for resolution here. Atheists of Fla., Inc. v. City of Lakeland, 779 F.Supp.2d 1330, 1332 (M.D.Fla.2011). After extensive discovery, the parties submitted the instant cross-motions for summary judgment.

STATEMENT OF FACTS

For many years, the Lakeland City Commission has begun each of its bi-monthly meetings with a prayer invocation.1 Plaintiffs have attended these meetings in the past and viewed them over the Internet; they thus claim to have been subjected to unwelcome endorsement of religion “with government imprimatur.” (Dkt. 10, ¶ 21).

From 1980 until 1995, invocation speakers were invited to Commission meetings by Carol Hoffman (“Hoffman”), an administrative employee who worked in the office of the City Manager from 1975 to 1995. (Hoffman Dep. 7:6–13). Hoffman scheduled invocation speakers by referencing “a list from the prior secretary to the mayor,” but exactly how her list originated is unclear. (Hoffman Dep. 18:1–5). Though Hoffman's list was limited to

[838 F.Supp.2d 1296]

places of worship with a Lakeland address, she attempted to vary the religious denominations invited to give the invocation: indeed, “every commission meeting [she would] have a different denomination” offer the invocation. (Hoffman Dep. 22:7–11).

Hoffman's deposition testimony indicates that, during the twenty-year period in which she organized invocation speakers, she invited mostly Christian religious leaders, but also “[h]ad one pastor from the Universal Unitarian Church.” (Hoffman Dep. 16:1014). Hoffman also indicated that a Jewish religious leader from Temple Emanuel gave the invocation at various points throughout the 1980s, but that “there came a time when he retired ... [a]nd they got a new rabbi [who] ... for whatever reason ... did not want to do it” and was therefore taken “off the list.” (Hoffman Dep. 23:25–24:16). The evidence corroborates this account: City Commission meeting minutes from 1979 through 1985 show that Rabbi Mordecai Levy of Temple Emanuel provided the invocation at fourteen different Commission meetings between 1979 and 1985.

The City continued to follow the same practice following Hoffman's retirement. For example, from October 2003 to October 2005, Cher Gill (“Gill”), an administrative assistant in the City Manager's office, was responsible for scheduling invocation speakers. Gill's predecessor, a woman named “Joy,” instructed Gill as to how to schedule invocation speakers, telling her to “pick it up from [where Joy had stopped] and do it on a fair rotation basis.” (Gill Dep. 12:116:19). Joy instructed Gill to make sure that each speaker was from “within the city limits,” (Gill Dep. 25:2026:25), and Gill used the rotating list of denominations she had received from Joy to select each speaker: when it was a given denomination's turn, she would “try to get in contact with somebody” from that denomination to give the invocation. (Gill Dep. 12:1516:17; 22:49). Gill testified that each of the denominations on her rotating list were Christian, though she was unsure of what the category labeled “nondenominational” meant. (Gill Dep. 31:18).

The most detailed description of the City's practice with regard to the selection of invocation speakers was provided by the City employee currently responsible for planning invocation speakers, Traci Terry (“Terry”). Terry, a part-time Office Associate in the City Manager's office, has been responsible for scheduling invocation speakers since October 2005. (Terry Dep. 25:1626:4). She was provided a “congregations list” shortly after beginning her employment with the City, and was instructed to “go down the list” and find someone from a different congregation to give the invocation at each meeting. (Terry Dep. 63:2364:17). Terry did not update the list from October 2005 to March 2010. She did update the list in March 2010, at the direction of City Attorney Timothy McCausland. (Terry Aff. ¶ 6; Terry Dep. 62:22–67:1, 82:1019).

The parties largely agree that the “congregations list” used by the City to schedule invocation speakers from 2002 to 2010 included only Christian denominations. Compare Dkt. 34, at 5 (noting that prior to 2010 “speakers were limited to those organizations on the list [Terry] was provided, which were almost exclusively Christian”), with Dkt. 49, at 4 (explaining that the list used from 2002 to approximately April 2010 excluded non-Christian religions). What is more, the invocation schedules from 2002 to May 2010 show that only Christian denominations (in addition to one invocation given each year by a “Captain” from the “Salvation Army” “denomination”) were represented as invocation speakers at Lakeland City Commission

[838 F.Supp.2d 1297]

meetings. (Terry Dep., Ex. 17, 18, 19, 28).

Beginning in March 2010, Plaintiffs began to complain to the City about the prayers at City Commission meetings. On March 15, 2010, Plaintiffs delivered a letter to Defendant Fields, Mayor of Lakeland, asking that the City dispense with its religious prayer practice and instead offer a “silent moment of reflection” to solemnize the Commission meetings. (Dkt. 10, Ex. 2). While Defendant Fields responded in a March 18 letter that “[t]he practice of opening Lakeland City Commission meetings with an invocation has a long history and will continue unless the City Commission decides it should be changed,” he also defended the practice, explaining that “[e]very effort is made to ensure that those offering an inspirational message [are] representative of Lakeland's diverse religious community.” (Dkt. 10, Ex. 3).

At about the same time, City Attorney McCausland undertook to reexamine the City's invocation practice. Starting in March 2010, he asked the City staff charged with inviting invocation speakers to City Commission meetings to update its list of potential invocation speakers. Terry then updated the list by using the Polk County Yellow Pages and the internet to research places of worship, including “churches or synagogues or mosques or temples or worship centers.” (McCausland Dep. 21:1318; see Terry Dep. 97:210). An invitation to deliver the invocation was then mailed to every religious congregation on the updated list, which includes some 600 religious congregations, the vast majority of which are Christian, but which also includes a Jewish synagogue, a Muslim mosque, Jehovah's Witness meeting halls, Unitarian Universalist churches, and a Hindu temple. (Terry Dep. Ex. 31).

On August 2, 2010, the Lakeland City Commission passed Resolution No. 4848, also known as Proposed Resolution 10–041 (the “Resolution”), for the purpose of “codifying its policy regarding invocations before meetings of the Lakeland City Commission.” (Dkt. 10, Ex. 4). In the Resolution, the City explains that it “wishes to maintain a tradition of solemnizing its proceedings by allowing for an opening invocation before each meeting, for the benefit and blessing of the Commission.” (Dkt. 10, Ex. 4). The Resolution's recitals then lay out the relevant Supreme Court and Eleventh Circuit legal precedent regarding legislative prayer, and specifically state that “the Commission intends, and has intended in past practice, to adopt a policy that does not proselytize or advance any faith, or show any purposeful preference of one religious view to the exclusion of others.”...

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3 practice notes
  • Mullin v. Sussex Cnty., C.A. No. 11–580–LPS.
    • United States
    • U.S. District Court — District of Delaware
    • 15 Mayo 2012
    ...on a rotating basis, to offer invocations with a variety of religious expressions”); Atheists of Fla., Inc. v. City of Lakeland, 838 F.Supp.2d 1293, 1306–07 (M.D.Fla.2012) (holding that town council's practice of inviting community religious leaders listed in phone book to deliver opening i......
  • Atheists of Fla., Inc. v. City of Lakeland, No. 12–11613.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 26 Marzo 2013
    ...fact that the great majority of religious organizations in Lakeland are Christian.” Atheists of Fla., Inc. v. City of Lakeland, Fla., 838 F.Supp.2d 1293, 1313 (M.D.Fla.2012); see also Atheists of Fla., Inc. v. City of Lakeland, 2012 U.S. Dist. LEXIS 11382 (M.D.Fla. Jan. 31, 2012) (noting “t......
  • Atheists of Fla., Inc. v. City of Lakeland, No. 12-11613
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 26 Marzo 2013
    ...that the great majority of religious organizations in Lakeland are Christian." Atheists of Fla., Inc. v. City of Lakeland, Fla., 838 F. Supp. 2d 1293, 1313 (M.D. Fla. 2012); see also Atheists of Fla., Inc. v. City of Lakeland, 2012 U.S. Dist. LEXIS 11382 (M.D. Fla. Jan. 31, 2012) (noti......
3 cases
  • Mullin v. Sussex Cnty., C.A. No. 11–580–LPS.
    • United States
    • U.S. District Court — District of Delaware
    • 15 Mayo 2012
    ...on a rotating basis, to offer invocations with a variety of religious expressions”); Atheists of Fla., Inc. v. City of Lakeland, 838 F.Supp.2d 1293, 1306–07 (M.D.Fla.2012) (holding that town council's practice of inviting community religious leaders listed in phone book to deliver opening i......
  • Atheists of Fla., Inc. v. City of Lakeland, No. 12–11613.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 26 Marzo 2013
    ...fact that the great majority of religious organizations in Lakeland are Christian.” Atheists of Fla., Inc. v. City of Lakeland, Fla., 838 F.Supp.2d 1293, 1313 (M.D.Fla.2012); see also Atheists of Fla., Inc. v. City of Lakeland, 2012 U.S. Dist. LEXIS 11382 (M.D.Fla. Jan. 31, 2012) (noting “t......
  • Atheists of Fla., Inc. v. City of Lakeland, No. 12-11613
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • 26 Marzo 2013
    ...that the great majority of religious organizations in Lakeland are Christian." Atheists of Fla., Inc. v. City of Lakeland, Fla., 838 F. Supp. 2d 1293, 1313 (M.D. Fla. 2012); see also Atheists of Fla., Inc. v. City of Lakeland, 2012 U.S. Dist. LEXIS 11382 (M.D. Fla. Jan. 31, 2012) (noti......

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