Conrad v. City and County of Denver

• Court: Colorado Supreme Court
• Writing for the Court: LOHR; ERICKSON; HODGES, C.J., and LEE; ERICKSON; HODGES
• Citation: Conrad v. City and County of Denver, 656 P.2d 662 (Colo. 1982)
• Decision Date: 06 December 1982
• Docket Number: No. 82SA267,82SA267
• Parties: Jane CONRAD, Phillip Danielson, Richard Grundmann, and David Hofer, Plaintiffs-Appellants, v. The CITY AND COUNTY OF DENVER, Defendant-Appellee.

Page 662

656 P.2d 662

Jane CONRAD, Phillip Danielson, Richard Grundmann, and David Hofer, Plaintiffs-Appellants, v. The CITY AND COUNTY OF DENVER, Defendant-Appellee.

No. 82SA267.

Supreme Court of Colorado En Banc.

Dec. 6, 1982.

As Modified on Denial of Rehearing

Jan. 24, 1983.

Jane Conrad, Phillip Danielson, Richard Grundmann, David Hofer, pro se.

Max P. Zall, City Atty., Stan M. Sharoff, Darlene M. Ebert, Asst. City Attys., Denver, for defendant-appellee.

LOHR, Justice.

This case presents the question whether the action of the City and County of Denver (Denver) in displaying a nativity scene, or creche, on the steps of the City and County Building as part of the Christmas holiday building decorations violates Colo. Const. Art. II, § 4.

Jane Conrad, Phillip Danielson, Richard Grundmann and David Hofer brought this action against Denver in Denver District Court seeking a declaratory judgment that Denver's nativity scene display violates Colo. Const. Art. II, § 4, injunctive relief prohibiting inclusion of the creche among the holiday decorations on the steps of the City and County Building, and an order that the nativity scene be sold at public auction. At the conclusion of the plaintiffs' case, the trial court granted Denver's motion that the complaint be dismissed for failure of the plaintiffs to establish a prima facie case in support of the claimed constitutional violation. ¹ We reverse and remand for further proceedings.

The plaintiffs contend that the trial court erred in ruling that they had not established a prima facie case. In addition, the plaintiffs assert error in a number of the district court's evidentiary rulings. Denver, on the other hand, supports the trial court's order of dismissal and its rulings on the evidence, and asserts that the plaintiffs failed to prove standing to sue. At the outset, however, Denver contends that we should stay the exercise of our jurisdiction until the United States Tenth Circuit Court of Appeals has ruled on the consistency of the nativity scene display with First Amendment principles in a case now pending before that court.

We first trace the history of litigation challenging Denver's use of the creche, and then outline the evidence presented before the trial court and the trial court's ruling. Next we consider the appropriateness of the exercise of our jurisdiction while the federal case remains pending, and finally address the merits of this appeal.

I.

The present case is the third in a series of suits challenging the inclusion of a creche among the Christmas holiday decorations at Denver's City and County Building. A summary of the earlier cases and of their present status will provide a useful background for our discussion of the issues before us.

In 1979, Citizens Concerned for Separation of Church and State, an unincorporated association, brought suit in the United States District Court for the District of Colorado challenging the nativity scene display as contrary to the Establishment Clause of the First Amendment to the United States Constitution. The district court found that challenge meritorious and enjoined Denver from including the creche among the Christmas decorations at the City and County Building. Citizens Concerned For Separation of Church and State v. Denver, 481 F.Supp. 522 (D.Colo.1979) (Citizens Concerned I ). On appeal, the United States Tenth Circuit Court of Appeals reversed. The appellate court did not reach the constitutional issue, concluding that the proof was inadequate to establish the standing of the plaintiff unincorporated association to maintain the action. Citizens Concerned For Separation of Church and State v. Denver, 628 F.2d 1289 (10th Cir.1980). In a later proceeding in the same case, the United States Tenth Circuit Court of Appeals held that the plaintiff was precluded from further proceedings in the trial court in an effort to establish standing. Denver v. Matsch, 635 F.2d 804 (10th Cir.1980). The United States Supreme Court denied certiorari. 452 U.S. 963, 101 S.Ct. 3114, 69 L.Ed.2d 975 (1981).

The same plaintiff filed a new action in United States District Court for the District of Colorado in December 1980 seeking the same relief and relying on the same First Amendment grounds as in the earlier litigation. After an evidentiary hearing the plaintiff's motion for a preliminary injunction was denied. Citizens Concerned For Separation of Church and State v. Denver, 508 F.Supp. 823 (D.Colo.1981). A further hearing was held in August 1981 to consider the plaintiff's request for a permanent injunction against display of the creche, and relief again was denied. Citizens Concerned For Separation of Church and State v. Denver, 526 F.Supp. 1310 (D.Colo.1981) (Citizens Concerned II ). The plaintiff appealed to the United States Tenth Circuit Court of Appeals, and that appeal remains pending.

II.

The case now before us was commenced in December 1981. The plaintiffs were not parties to the earlier-filed suits in federal court. Because the federal litigation and the present case concern the same Christmas decorations at Denver's City and County Building, we rely in part on the description of the holiday decorations presented in the reported federal cases to supplement the evidence in the record before us. ²

For many years Denver has erected and maintained a lighted holiday display at the City and County Building, which houses Denver's governmental offices. The display is put in place by mid-December and is maintained until the end of the National Western Stock Show in the latter part of January. The entire face of the block-long building is lighted by colored lights during the Christmas season and while the stock show is in progress. The stone steps leading to the main entrance at the center of the structure are decorated with the message "Merry Christmas" and with three sets of figurines. In the center are Santa Claus in a sleigh pulled by eight reindeer. ³ On one side is a group of elves at work, representing Santa's workshop. On the other is the creche, consisting of a barn-like structure and figurines representing the baby Jesus in a manger, Mary, Joseph, shepherds, wise men, and a number of domestic animals. The figurines of the adults in the nativity scene are approximately life-size and are posed about the Christ child in attitudes of reverence. On the building, toward the center, are wreaths, candles, a lighted message, "Seasons Greetings," Christmas trees, and other items associated with the holiday season.

The plaintiffs are non-Christians who have paid various types of Denver taxes, including head tax, sales tax, motor vehicle registration tax, and amusement tax. Only one is a Denver resident. All testified that they objected to the nativity scene display. Mr. Grundmann stated that he feels the creche represents Christianity. He related his family's experience with persecution in Germany in the late 1930s, his emigration to the United States--motivated in some part by his admiration for the United States Constitution and its Bill of Rights--and his belief that the use of the creche in Denver's holiday display violates that Constitution. Mr. Danielson testified that inclusion of the nativity scene among the decorations offends him because it is a representation of one religion and gives preference to that religion over others. Ms. Conrad testified that the creche as used by Denver is disturbing to her because it reflects a governmental preference for one religion over others. She related that her grandparents had come to the United States as the result of religious persecution by Christians in Eastern Poland. She stated, "I think this kind of an exhibit coerces people, is providing peer pressure for people to believe what the government specifies is the state religion." She also related that on two occasions she had seen people standing near the creche in what appeared to be attitudes of prayer. Mr. Hofer testified simply that he objects to the inclusion of the nativity scene in the holiday display.

The other witnesses included two ministers, who testified as experts on the origin of the Christmas celebration, expressed their opinions that the creche represents Christianity, and stated the view that Christianity is favored by government because of the inclusion of the nativity scene in the City and County Building display. In addition, a member of the Jewish faith testified that, as a child, she became upset when viewing the creche, for it made her feel that her religion was not a good one because it did not include belief in the nativity. She testified that even in maturity she finds it somewhat upsetting to view Denver's holiday display. Another witness related that he had seen a Christian religious service being conducted in front of the nativity scene and told of being shoved and threatened by Christians while he was protesting the presence of the creche among the city's holiday building decorations. Other witnesses as well testified to seeing religious observances taking place in front of the creche.

After all the testimony had been presented the trial court took judicial notice that the Christian religion is the only religion symbolized by the nativity scene.

At the conclusion of the plaintiffs' case, Denver moved to dismiss for failure to establish a prima facie case that Colo.Const. Art. II, § 4, had been violated. After hearing argument, the trial court granted that motion. The court found that the creche represents the birth of Christ and that the plaintiffs are non-Christians who took offense at the display. It also found that the plaintiffs had not established that any of their tax money was spent to maintain the creche, although it found as well that Denver had admitted that funds are appropriated for the display and storage of the nativity scene. The court grounded its ruling, however, on its conclusion that "the actions of the defendant in creating and providing the nativity...