Books et al v. City of Elkhart, 00-1114

• Decision Date: 31 January 2001
• Docket Number: No. 00-1114,00-1114
• Citation: 239 F.3d 826
• Parties: (7th Cir. 2001) WILLIAM A. BOOKS and MICHAEL SUETKAMP, Plaintiffs-Appellants, v. CITY OF ELKHART, INDIANA, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 826

239 F.3d 826 (7th Cir. 2001)

WILLIAM A. BOOKS and MICHAEL SUETKAMP, Plaintiffs-Appellants, v. CITY OF ELKHART, INDIANA, Defendant-Appellee.

No. 00-1114

In the United States Court of Appeals For the Seventh Circuit

January 31, 2001

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 98 C 230--Allen Sharp, Judge.

MOTION TO RECALL AND STAY THE MANDATE^*.

RIPPLE, Circuit Judge (in chambers).

This matter is before me on the application of the City of Elkhart, Indiana, for a stay of this court's mandate while the City seeks a writ of certiorari in the Supreme Court of the United States. When this application was first presented to me, I ordered that the plaintiffs file a response. That response has been received, and the matter is now before me for disposition.

Familiarity with our decision in Books v. City of Elkhart, 235 F.3d 292 (7th Cir. 2000), is presumed; I shall set forth only a thumbnail sketch of the underlying litigation. The plaintiffs, William Books and Michael Suetkamp, residents of Elkhart, brought this action because they objected to the placement of a monument inscribed with the Ten Commandments on the lawn of Elkhart's Municipal Building. The district court granted summary judgment in favor of the City. On December 13, 2000, this court reversed that decision. We held that, under the facts established in this record, the primary purpose and effect of the monument is to advance or endorse religion; therefore, the display violates the Establishment Clause of the First Amendment to the Constitution of the United States. We then remanded the case with instructions that the district court fashion a remedy that, while correcting the condition that offends the Constitution, otherwise does not intrude on the authority of local government to decide on the placement of the monument. We noted that arriving at a realistic solution would take some time and expressed confidence that the district court would ensure that Elkhart authorities had a reasonable time to address in a reasonable and prudent manner the task of conforming to the letter and the spirit of the constitutional requirement.

1.

When a party asks this court to stay its mandate pending the filing of a petition for a writ of certiorari, that party must show that the petition will present a substantial question and that there is good cause for a stay. See Fed. R. App. P. 41(d)(2)(A). The grant of a motion to stay the mandate "is far from a foregone conclusion." 16A Charles Alan Wright et al., Federal Practice and Procedure sec. 3987.1 (3d ed. 1999). Instead, the inquiry must focus on whether the applicant has a reasonable probability of succeeding on the merits and whether the applicant will suffer irreparable injury. See Williams v. Chrans, 50 F.3d 1358, 1360 (7th Cir. 1995) (per curiam); United States v. Holland, 1 F.3d 454 456 (7th Cir. 1993) (Ripple, J., in chambers).

2.

To demonstrate a reasonable chance of succeeding on the merits, the applicant must show a reasonable probability that four Justices will vote to grant certiorari and a reasonable possibility that five Justices will vote to reverse the judgment of this court. See Williams, 50 F.3d at 1360; Holland, 1 F.3d at 456. In undertaking this assessment, I must consider the issues that the applicant plans to raise in the certiorari petition in the context of the case history, the Supreme Court's treatment of other cases presenting similar issues, and the considerations that guide the Supreme Court in determining whether to issue a writ of certiorari. See Williams, 50 F.3d at 1361. This assessment requires that I undertake a somewhat different task than that performed by a circuit judge in deciding a case on the merits. The Supreme Court has made it clear that, in deciding cases presented in the normal course of decision, a lower court judge ought not anticipate changes in established doctrine. See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). On the other hand, in determining whether to grant an application for stay of mandate, the judge must perform the predicative function of anticipating the course of decision in the Supreme Court of the United States. See INS v. Legalization Assistance Project, 510 U.S. 1301, 1304 (1993) (O'Connor, J., in chambers).

Even taking into account this different perspective, I cannot say that the City has made a strong case that further review by the Supreme Court is warranted or that the Supreme Court will ultimately reach a decision different from the one reached in this court. The City asserts that this court's decision is in direct conflict with the Tenth Circuit's decision in Anderson v. Salt Lake City Corp., 475 F.2d 29 (10th Cir.), cert. denied, 414 U.S. 879 (1973), and the Colorado Supreme Court's decision in Colorado v. Freedom from Religion Foundation, Inc., 898 P.2d 1013 (Colo. 1995), cert. denied, 516 U.S. 1111 (1996). I cannot accept this contention. The Tenth Circuit recently acknowledged that "[s]ince Anderson was decided . . . more recent cases, including a Supreme Court case, casts [sic] doubt on the validity of our conclusion that the Ten Commandments monolith is primarily secular in nature." Summum v. Callaghan, 130 F.3d 906, 910 n.2 (10th Cir. 1997). Although the Tenth Circuit decided that it need not revisit the Anderson decision in Summum, the court noted that the Supreme Court in Stone v. Graham, 449 U.S. 39 (1980) (per curiam), said that "[t]he Ten Commandments are undeniably a sacred text in the Jewish and Christian...