Granzeier v. Middleton

• Decision Date: 19 April 1999
• Docket Number: Nos. 97-5409,97-6326,s. 97-5409
• Citation: 173 F.3d 568
• Parties: Michael J. GRANZEIER; Michelle Blankenship; Heidi B. Sahrbacker, Plaintiffs-Appellants, v. Clyde MIDDLETON, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 568

173 F.3d 568

Michael J. GRANZEIER; Michelle Blankenship; Heidi B.

Sahrbacker, Plaintiffs-Appellants, v. Clyde MIDDLETON, et al., Defendants-Appellees.

Nos. 97-5409, 97-6326.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 9, 1998.

Decided April 19, 1999.

Scott T. Greenwood (argued and briefed), Greenwood & Associates, Cincinnati, Ohio, for Plaintiffs-Appellants.

Garry L. Edmondson, Edmondson, Guenther & Rylee, Covington, Kentucky, Rita Ferguson (argued and briefed), Kenton County Attorney's Office, Covington, Kentucky, for Defendants-Appellees Clyde Middleton, Steve arlinghaus, Nioka Johnston, Bernie Moorman, Kenton County Fiscal Court.

James J. Grawe (argued and briefed), Office of the Attorney General, Civil Division, Frankfort, Kentucky, Stuart W. Cobb, Office of the Attorney General, Frankfort, Kentucky, for Defendants-Appellees Douglas Stevens, Patricia M. Summe, Greg Bartlett, Martin J. Sheehan, William L. Schmaedecke, Ann Ruttle, Frank O. Trusty, Mary Ann Woltenberg, Donald C. Buring.

Stuart W. Cobb, Office of the Attorney General, Frankfort, Kentucky, for Defendant-Appellee Steven R. Jaeger.

Rita Ferguson, Kenton County Attorney's Office, Covington, Kentucky, for Defendants-Appellees Mark E. Vogt, Bill Aylor, Garry L. Edmondson.

Before: WELLFORD, BOGGS, and MOORE, Circuit Judges.

BOGGS, J., delivered the opinion of the court. WELLFORD, J. (pp. 578-79), delivered a separate concurring opinion. MOORE, J. (pp. 579-81), delivered a separate dissenting opinion.

BOGGS, Circuit Judge.

Plaintiffs sought injunctive relief against the closing of county and state courts and offices on Good Friday. The district court granted partial summary judgment for each party. Its order enjoined Defendants from posting overtly religious signs announcing the closing and permitted Defendants to continue closing the building and offices on the Friday before Easter for a "Spring Holiday." Plaintiffs appeal the district court's denial of an injunction against the Good Friday closings and its reduced award of Plaintiffs' attorney's fees. For the reasons set forth below, we affirm the judgment of the district court in all respects.

I

In November 1995, the Kenton County, Kentucky, Fiscal Court, the Kenton District Court, and the Kenton Circuit Court, all located in the Kenton County Courthouse and Administration Building (the "Courthouse"), each entered orders adopting identical holiday closing schedules for 1996. Good Friday, April 5, 1996, was included in the orders. The federal district court found that "the courts and the offices in the [Courthouse] have closed on Good Friday for as many years as any witness in this case can remember." In early April 1996, George Neack, the Deputy Judge Executive of Kenton County, acting without the knowledge or authorization of any defendant, made signs bearing an image of the Crucifixion and announcing that the building would be closed "for observance of Good Friday," April 5, 1996. Neack had the signs posted at the entrances to the Courthouse. ¹ Plaintiffs observed the signs and, on April 3, 1996, filed their lawsuit against the County Judge-Executive and various county officials who had offices in the Courthouse or whom Plaintiffs believed exercised control over the Courthouse (the "county defendants"), as well as various officers and judges of the state courts with offices in the Courthouse (the "state defendants"). When the county defendants received notification of the suit, they immediately had the signs removed and replaced by signs simply announcing that the building would be closed on April 5. Defendants admitted that the sign violated the Establishment Clause (U.S. CONST. amend. I) and stated on the record that no such signs would be posted in the future. The Courthouse was open on April 5, 1996, although the courts and most offices were not. Defendants now refer to the Friday before Easter as Spring Holiday on their calendars and closing orders.

The district court found that "[a]lthough the closing is to be observed on Good Friday, the day on which Christians remember Jesus' crucifixion, there is no evidence that the court and office closings are otherwise related to the Christian holiday." The court also found that the holiday is a secular event. Many Kentucky families begin a vacation that day; the court found that according to state traffic statistics, Good Friday had the third-largest daily traffic volume on Kentucky highways in 1995. Defendants also presented evidence that the courts were concerned about the availability of jurors on Good Friday.

On April 8, 1996, the district filed its order denying Plaintiffs' request for a temporary restraining order. On December 31, 1996, all parties filed motions for summary judgment. On February 14, 1997 the district court declared that the sign Neack posted in April 1996 violated the Establishment Clause, and granted Plaintiffs' motion with respect to the sign. The court's February 27, 1997 injunction prohibits Defendants from posting signs that depict the Crucifixion or state that the closing is in observance of Good Friday. Its February 27, 1997 judgment permits Defendants to continue closing their offices on the Friday before Easter "if current practices are pursued and the Injunction is obeyed." The judgment also awards costs, "including appropriate attorney's fees," to Plaintiffs.

The state defendants moved to amend the judgment to reflect that they are not responsible for any attorney's fees awarded to Plaintiffs. Plaintiffs moved for the award of attorney's fees of $25,723.75 and litigation expenses of $207.95. The district court's May 5, 1997 order granted the state defendants' motion and referred the attorney's fees issue to a magistrate judge. On March 31, 1997, Plaintiffs appealed the judgment. On August 7, 1997, the magistrate judge issued a report recommending that Plaintiffs receive $4,617.95 for their attorney's fees. Plaintiffs objected. On October 7, 1997, the district court adopted the recommendation of the magistrate judge. Plaintiffs appealed the fee award, and the appeals have been consolidated before this court.

II

Plaintiffs argue that the district court erred when it granted Defendants' motion for summary judgment allowing Defendants to continue closing the Courthouse and offices on the Friday before Easter. We review a district court's grant of summary judgment de novo, and its findings of fact for clear error. Grand Traverse Band of Ottawa and Chippewa Indians v. Director, Mich. Dep't of Natural Resources, 141 F.3d 635, 638 (6th Cir.1998) (citing Russo v. City of Cincinnati, 953 F.2d 1036, 1041-42 (6th Cir.1992) and Eastern Ky. Resources v. Fiscal Court of Magoffin County, 127 F.3d 532, 539-40 (6th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1512, 140 L.Ed.2d 666 (1998)). "A finding is clearly erroneous when 'although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " United States v. Russell, 156 F.3d 687, 690 (6th Cir.1998) (citing United States v. United States Gypsum Co., 333 U.S. 364, 365, 68 S.Ct. 525, 92 L.Ed. 746 (1948)).

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. CONST. amend. I. The First Amendment was made binding upon the states by the Fourteenth Amendment. Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 757, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995). In 1971, the Supreme Court articulated the well-known Lemon test to determine whether a statute violates the Establishment Clause:

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.

Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (citations and quotation marks omitted).

In more recent decisions, the Court has applied the "endorsement" test to Establishment Clause cases. See Lynch v. Donnelly, 465 U.S. 668, 687-94, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O'Connor, J., concurring) (advocating a focus on excessive entanglement and government endorsement); County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 593, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (applying the endorsement test and collecting Supreme Court cases applying the test); Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (adoption by eight Justices of the endorsement test for cases involving government speech). The endorsement test prohibits speech that a reasonable observer would think is an endorsement of religion by the government.

This Circuit has treated the endorsement test as a refinement or clarification of the Lemon test. See Americans United for Separation of Church and State v. City of Grand Rapids, 980 F.2d 1538, 1542-45 (6th Cir.1992) (en banc ) (applying the endorsement test as a clarification of the second part of the Lemon test); American Civil Liberties Union v. City of Birmingham, 791 F.2d 1561, 1563 (6th Cir.1986) (applying the endorsement test as a refinement of the first two parts of the Lemon test); American Civil Liberties Union of Ky. v. Wilkinson, 895 F.2d 1098, 1103, 1105 (6th Cir.1990) (applying the endorsement test on its own, without relating it to the Lemon test); Hawley v. City of Cleveland, 24 F.3d 814, 820 (6th Cir.1994) (characterizing the Allegheny endorsement test as a "refined version" of the Lemon test); Pinette v. Capitol Square Review and Advisory Bd., 30 F.3d 675, 678-79 (6th Cir.1994) (applying the reasonable observer test as a refinement of the Lemon test), aff'd, 515 U.S. 753, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995); Kunselman v. Western Reserve Local School District, 70 F.3d 931, 932 (6th Cir.1995) (applying the...