Freedom from Religion Found. v. City of Green Bay

• Decision Date: 07 October 2008
• Docket Number: Case No. 07-C-1151.
• Citation: 581 F.Supp.2d 1019
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: FREEDOM FROM RELIGION FOUNDATION, INC., et al., Plaintiffs, v. CITY OF GREEN BAY, et al., Defendants.

581 F.Supp.2d 1019

FREEDOM FROM RELIGION FOUNDATION, INC., et al., Plaintiffs, v. CITY OF GREEN BAY, et al., Defendants.

Case No. 07-C-1151.

United States District Court, E.D. Wisconsin.

October 7, 2008.

COPYRIGHT MATERIAL OMITTED

Richard L. Bolton, Boardman Suhr Curry & Field LLP, Madison, WI, for Plaintiffs.

David M. Corry, Liberty Counsel, Lynchburg, VA, for Defendants.

DECISION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

WILLIAM C. GRIESBACH, District Judge.

Freedom From Religion Foundation, Inc., ("FFRF") as well as several individual citizens, filed this action on December 26, 2007, alleging that a Nativity scene displayed at Green Bay City Hall violated the Establishment Clause of the First Amendment. According to the Amended Complaint, on December 11, 2007, City Council President Chad Fradette ordered a Nativity scene placed on the roof of City Hall's entrance, where it was displayed prominently. On December 17, the City implemented a moratorium on the display of religious symbols but allowed the Nativity scene to be displayed until December 26. Three of the plaintiffs attempted to display their own religious (non-Christian) symbols, but were denied the right to do so.

The Plaintiffs contend that the Defendants actions violate their rights under the First Amendment. More particularly, they claim that the actions of the Defendants constitute government endorsement of Christianity which is prohibited by the First Amendment's Establishment Clause. The actions of Council President Fradette, plaintiffs allege, was not only intended to endorse a religious message, but was meant to be a deliberate provocation on behalf of the City. According to the amended complaint, Council President Fradette admitted as much "by publicly challenging persons who object to the public display of religious symbols to confront religious proponents in Green Bay" (Am. Compl. ¶ 33), as opposed to the City of Peshtigo, where a similar display had been erected. The Plaintiffs seek relief in the form of a declaration that the actions of the Defendants violated the Establishment Clause of the First Amendment to the United States Constitution; an injunction enjoining the Defendants from promoting, advancing, or endorsing the establishment of religion by public displays of religious symbols that give the appearance of government sponsorship of religion; a judgment awarding nominal damages against each Defendant; and for reasonable costs, disbursements and attorneys fees. (Am. Compl. at 12-13.)

In Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), the Supreme Court rejected a claim that the City of Pawtucket, Rhode Island violated the Establishment Clause of the First Amendment by erecting a Christmas display in a privately-owned park located in the heart of the City's shopping district that included a crèche, or nativity scene. Noting that the display was "sponsored by the City to celebrate the Holiday and to depict the origins of that Holiday," id. at 681, 104 S.Ct. 1355, the Court concluded that the inclusion of the crèche had a secular purpose, did not impermissibly advance religion, and did not create excessive entanglement between religion and government. Id. at 685, 104 S.Ct. 1355. But instead of creating a clear rule on whether a municipality may constitutionally display a crèche as a symbol of the national, state and municipal holiday that is celebrated every December 25th, the majority opinion, read in conjunction with Justice O'Connor's concurrence, created a multi-factor balancing test that eschews easy application and requires judges before whom such cases are brought to undertake a "scrutiny more commonly associated with interior decorators than with the judiciary." American Jewish Congress v. City of Chicago, 827 F.2d 120, 129 (7th Cir.1987) (Easterbrook, J., dissenting). Thus, in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), a majority of the Court held that a crèche placed by a private group inside a public building violated the Establishment Clause, id. at 598-602, 109 S.Ct. 3086, but that a menorah placed alongside a Christmas tree and a "sign saluting liberty" outside that same building did not. Id. at 613-21, 109 S.Ct. 3086. More recently, utilizing the same balancing test, the Court by a 5 to 4 vote upheld a display of the Ten Commandments on a granite monument situated on the grounds of the Texas State Capitol, Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005), while on the same day, again on a vote of 5 to 4, it found the display of the Ten Commandments in two Kentucky county courthouses unconstitutional. McCreary County v. American Civil Liberties Union of Kentucky, 545 U.S. 844, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005).

The question of which side of this uncertain divide the crèche in this case falls is not presently before me. Choosing to fight that battle only if necessary, the Defendants, the City of Green Bay as well as Mayor Jim Schmitt and City Council President Chad Fradette, have moved to dismiss on the grounds of mootness and lack of standing. They also contend that the actions of Fradette were ad hoc rather than official City policy and thus cannot serve as a basis for municipal liability. Having considered the briefs and arguments of the parties, I now conclude for the reasons set forth below, that none of the Plaintiffs have standing because none of the relief they seek would redress the injuries they claim. I therefore grant the Defendants' motion to dismiss.

I. Standing and Mootness

It is fundamental to the exercise of judicial power under Article III of the United States Constitution that "federal courts may not give opinions upon moot questions or abstract propositions." Protestant Mem'l Med. Ctr., Inc. v. Maram, 471 F.3d 724, 729 (7th Cir.2006). Article III of the Constitution limits a federal court's jurisdiction to "cases" and "controversies." U.S. Const. Art. III, § 2, cl.1. The "case or controversy" requirement insures that the Federal Judiciary respects "the proper-and properly limited-role of the courts in a democratic society." Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). The doctrine of standing is "an essential and unchanging part of the case-or-controversy requirement of Article III," Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

The core component of standing derived directly from the Constitution is the requirement that the party bringing the suit allege some actual or threatened injury caused by the putatively unlawful conduct of the defendant which is likely to be redressed by the requested relief. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). In other words, to have standing to sue in federal court a "plaintiff must allege (1) that he has suffered an injury in fact (2) that is fairly traceable to the action of the defendant and (3) that will likely be redressed with a favorable decision." Books v. City of Elkhart, 235 F.3d 292, 299 (7th Cir.2000) (citing Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130). This requirement insures that the federal judicial power is confined to a role consistent with a system of separated powers and limited to cases which are traditionally thought to be capable of resolution through the judicial process. Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). Thus, federal courts have abjured appeals to their authority which would convert the judicial process into "no more than a vehicle for the vindication of the value interests of concerned bystanders." United States v. SCRAP, 412 U.S. 669, 687, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). "[T]he `cases and controversies' language of Art. III forecloses the conversion of courts of the United States into judicial versions of college debating forums." Valley Forge Christian College, 454 U.S. at 473, 102 S.Ct. 752; see also Air Line Pilots Ass'n v. UAL Corp., 897 F.2d 1394, 1396-97 (7th Cir.1990) (the test is whether the relief sought would "make a difference to the legal interests of the parties (as distinct from their psyches, which might remain deeply engaged with the merits of the litigation)").

This is not to say that the questions of law raised in cases lacking actual or threatened injury may not be important. But it is not the role of the courts in a constitutional democratic republic such as ours to decide such questions, other than as a by-product of their true job, which is to decide cases and controversies within the meaning of Article III. See The Federalist No. 78. "If a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so." DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006).

The closely related doctrines of standing and mootness are based upon Article III's limitation of judicial power. "Standing doctrine addresses whether, at the inception of the litigation, the plaintiff had suffered a concrete injury that could be redressed by action of the court. Mootness addresses whether the plaintiff continues to have such a stake throughout the course of the litigation." Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248, 1263 (10th Cir.2004) (McConnell, J. concurring). The Supreme Court has described the doctrine of mootness as "the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n. 22, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997).

In this case, although ...