Doe v. Small
| Decision Date | 04 December 1989 |
| Docket Number | No. 88 C 6952.,88 C 6952. |
| Citation | 726 F. Supp. 713 |
| Parties | Jane DOE, Plaintiff, v. George D. SMALL, et al., Defendants. Ottawa Jaycees, Intervenor Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
Deborah Golden, Schiff, Hardin & Waite, Jane M. Whicher, Roger Baldwin Foundation of ACLU, Chicago, Ill., for plaintiff.
Michael Meyer and D.J. Sartorio, Tribler and Marwedel, Chicago, Ill., for City of Ottawa.
Cynthia Abbott, Patrick Lamb and Joel Chefitz, Katten Muchin & Zavis, Chicago, Ill., for Ottawa Jaycees.
Jane Doe1 brings this action under 42 U.S.C. § 1983 ("Section 1983"), seeking declaratory and injunctive relief against the City of Ottawa, Illinois,2 its Mayor George Small and certain City Council members (collectively "City Defendants"). Plaintiff challenges the display in a City park of 16 paintings depicting scenes from the life of Jesus Christ. Claiming responsibility for erecting, dismantling and storing the paintings, the Ottawa Jaycees ("Jaycees") intervened as an additional defendant. Plaintiff, City Defendants and Jaycees have all filed motions for summary judgment under Fed.R.Civ.P. ("Rule") 56. For the reasons stated in this memorandum opinion and order, this Court grants plaintiff's motion and denies defendants' motions.
Washington Park (the "Park") is owned by City and located on the northern edge of Ottawa's business district near the center of town. It is bordered on the north by Lafayette Street, on the south by Jackson Street, on the east by Columbus Street and on the west by LaSalle Street, one of the main arteries connecting the Ottawa business district with Interstate 80 north of town. Like most small parks, it is essentially an open city block covered with grass and a few trees. Although no buildings owned or used by City are visible from the Park, the Illinois Appellate Court for the Third District is directly across the street from the Park at the corner of Lafayette and Columbus Streets, and City Hall is three blocks away.
Around Christmastime in most years since 1956, a visitor to Ottawa traveling on LaSalle Street along the west side of the Park would pass 16 paintings depicting events throughout the life of Jesus Christ. Arranged in two lines forming a wide-angle "V," the paintings span much of the length of the Park's west side.4 Each painting is 8 feet 8 inches tall and is clearly visible from LaSalle Street both day and night.5
As a group, the paintings tell the story of Jesus' life as related in the four gospels of the New Testament — Matthew, Mark, Luke and John. Three paintings depict the events directly surrounding the birth of Jesus: the newborn Jesus, Mary and Joseph in the manger (Luke 2:76), God's announcement to the shepherds in the field of the birth of Jesus (Luke 2:8-20) and the Star of Bethlehem guiding the three wise men bearing gifts of gold, frankincense and myrrh to the birthplace (Matthew 2:1-12). Other biblical events depicted include the flight of Mary, Joseph and the baby Jesus into Egypt (Matthew 2:13-15), the baptism of Jesus by John the Baptist (Matthew 3:13-17; Mark 1:9-11; Luke 3:21-22; John 1:31-34), Jesus selecting two of his disciples (Matthew 4:18-22; Mark 1:16-20; Luke 5:1-11; John 1:35-42), Jesus miraculously stilling a storm (Matthew 8:18, 23-27; Mark 4:37-41; Luke 8:22-25), Jesus miraculously feeding 5,000 people on five loaves and two fish (Matthew 14:13-21; Mark 6:30-44; Luke 9:10-17; John 6:1-13), Jesus miraculously resurrecting Lazarus from the dead (John 11:38-44) and Jesus preaching (see Matthew 5:1-7:29 — Sermon on the Mount). Finally, seven paintings depict the story of Jesus' death — the "Passion Narrative": Jesus triumphantly entering Jerusalem on Palm Sunday7 (Matthew 21:1-9; Mark 11:1-10; Luke 19:28-38), the Last Supper (Matthew 26:17-29; Mark 14:12-25; Luke 22:7-20; 1 Corinthians 11:23-27), Jesus praying in the Garden of Gethsemane (Matthew 26:36-46; Mark 14:32-42; Luke 22:40-46), Jesus being tried before Pilate and convicted of heresy and treason (Matthew 27:11-26; Mark 15:1-15; Luke 23:2-25; John 18:28-19:16), Jesus crucified (Matthew 27:27-54; Mark 15:16-41; Luke 23:11-49; John 19:16-37) and the resurrected Jesus8 revealing himself to two of his followers on the road to Emmaus (Luke 24:13-35).
There is considerable dispute over how long the paintings have been on display in recent years.9 City Defendants claim to have no knowledge as to the dates or duration of the display for any year. Jaycees, on the other hand, have submitted these "approximate" dates of erection and dismantling:10
Erected Dismantled
Year (Approximate Date) (Approximate Date)
1988 November 27, 1988 No later than January 1, 1989
1987 November 29, 1987 January 24-30, 1988
1986 November 15, 1986 Commenced January 1987 and ended February
21, 198711
1985 December 1, 1985 February 2, 1986
1984 December 2, 1984 February 10, 1985
1983 December 3, 1983 March 4, 1984
1982 December 4, 1982 January 19 or 21, 1983
1981 December 5, 1981 January 10, 1982
1980 December 8, 1980 January 14, 1981
According to Jaycees, they have historically erected the paintings as soon as possible after Thanksgiving and removed them again as soon after Christmas as the weather would allow. In those years in which the paintings remained on display long after Christmas, they say, the ground had frozen, making removal impractical until warmer weather ensued. They do not specify in which years such ground freezing prevented early removal, or in how many years that occurred.
Plaintiff rejects as implausible that explanation for the length of time the paintings remained on display, citing local climatological data for the 1983-84 through 1988-89 Christmas seasons — data that plaintiff argues disproves any suggestion that ground freezing explains the late-removal years. In addition, plaintiff directly refutes the 1988 removal date offered by Jaycees with "John Doe's" affidavit (P.Ex. 29) that he viewed the paintings on display in the Park as late as February 15, 1988.12
For the reason stated in n. 10, this Court has no hard evidence on the relevant dates in the years for which Jaycees offer their inadmissible approximations — except for 1988, as to which John Doe's sworn eyewitness recollection of the February 15 date is admissible evidence sought to be countered by an inference from the affidavit of Jaycees' Treasurer Tom Cawley. On the other hand, it is unnecessary to determine with precision the dates on which the paintings were actually removed or when the weather would permit removal. Even if Jaycees' proffered dates are assumed accurate, in every year since 1980 the paintings were displayed beyond (and in virtually every year, well beyond) any reasonable definition of the "Christmas season."13 In addition, even if the claimed removal dates are assumed to reflect the first day in each year on which the ground thawed enough to allow removal of the paintings, defendants have failed to explain why no other action was taken to control the duration of the display, such as removing the paintings from their pipe legs or simply covering them up with a tarpaulin.
None of the parties claims to know who actually owns the paintings. In 1956 the Ottawa Retail Merchants' Association, in reaction to the increasing commercialism of the holiday, commissioned and first erected the paintings to "put Christ back into Christmas." Someone made sure the paintings were erected, taken down and stored every Christmas season from 1957 to 1969 and from 1980 to 1988. City Defendants admit City did so from 1963 to 1967, and Jaycees admit to having done so since 1980. In response to plaintiff's interrogatories, Jaycees say they "may" have erected the paintings from 1957 to 1962 and again in 1968 and 1969.
For several years in the 1970s the paintings were not displayed in the Park because of public criticism of the display.14 In November 1980 the Ottawa Daily Times reported that City's Park Superintendent had discovered the paintings in the municipal storage area at the City-owned Riordon Pool. Then City Mayor James Thomas was quoted as hoping to find a private group willing to display the paintings and as promising "the City will pay the electrical bills for illuminating the paintings and help in any way we can, except financially, if a group wants to display them again." That same month Jaycees asked and received permission from City to take over the responsibility for displaying the paintings.
According to newspaper reports offered by plaintiff, City provided some of the labor necessary to erect the display during the 1980s. In 1986, in order to stop deterioration of the metal sleeves in which the paintings had been installed and to widen the angle of the display so "they could be more easily viewed by persons driving down LaSalle Street," City gave permission to Jaycees to install 32 permanent concrete foundations with holes to accommodate the pipes that form the legs on which the paintings stand. City Engineer William Krauss and then City Commissioner of Public Improvement George Small (now, in his capacity as Mayor, one of the City Defendants) met with Jaycees to discuss the construction of the foundations. Now the foundations remain covered year-round when the paintings are not on display.
Since the current lawsuit was first filed, both City and Jaycees have attempted to blunt the effects of the display by disclaiming City responsibility and diluting the religious message of the display. In 1988 Jaycees placed a sign next to the display reading: "THIS DISPLAY HAS BEEN ERECTED AND MAINTAINED SOLELY BY THE OTTAWA JAYCEES, A PRIVATE ORGANIZATION, WITHOUT THE USE OF PUBLIC FUNDS." Measuring 20½ inches by 21¼ inches and utilizing lettering 1 1/16 inches high, that disclaimer is...
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