Grossbaum v. Indianapolis-Marion County Bldg. Auth.

• Decision Date: 15 December 1995
• Docket Number: No. IP 94-1801-C.,IP 94-1801-C.
• Citation: 909 F. Supp. 1187
• Parties: Rabbi Abraham GROSSBAUM and Lubavitch of Indiana, Inc., Plaintiffs, v. INDIANAPOLIS-MARION COUNTY BUILDING AUTHORITY and Ronald L. Reinking, in his capacity as General Manager, Defendants.
• Court: U.S. District Court — Southern District of Indiana

909 F. Supp. 1187

Rabbi Abraham GROSSBAUM and Lubavitch of Indiana, Inc., Plaintiffs, v. INDIANAPOLIS-MARION COUNTY BUILDING AUTHORITY and Ronald L. Reinking, in his capacity as General Manager, Defendants.

No. IP 94-1801-C.

United States District Court, S.D. Indiana, Indianapolis Division.

December 15, 1995.

COPYRIGHT MATERIAL OMITTED

B. Keith Shake, Henderson, Daily, Withrow & DeVoe, Indianapolis, Indiana, Nathan Lewin, Niki Kuckes, David S. Cohen, Miller, Cassidy, Larroca & Lewin, Washington, DC, for plaintiffs.

Thomas J. Costakis, Krieg, Devault, Alexander & Capehart, Indianapolis, Indiana, for defendants.

MEMORANDUM OPINION ON PLAINTIFFS' SECOND MOTION FOR PRELIMINARY INJUNCTION

HAMILTON, District Judge.

On October 2, 1995, defendant Indianapolis-Marion County Building Authority ("Building Authority") revised one of its rules so as to prohibit all private uses of the lobby of the City-County Building in downtown Indianapolis. Plaintiffs Rabbi Abraham Grossbaum and Lubavitch of Indiana, Inc. wish to display a five-feet tall wooden menorah in the lobby, as they have done in the past. Plaintiffs agree that the Building Authority's new policy is facially constitutional because it is viewpoint-neutral. They also agree that the Building Authority has the right to close what had been a "nonpublic forum." The new policy therefore does not suffer from the First Amendment defect found by the Court of Appeals in an earlier policy that banned displays of seasonal religious symbols. See Grossbaum v. Indianapolis-Marion County Bldg. Auth., 63 F.3d 581 (7th Cir.1995).

However, the new facially neutral policy still does not let plaintiffs do what they want to do: display their menorah in the lobby of the City-County Building. Plaintiffs have filed an amended complaint and a new motion for preliminary injunction. They assert that even though the new policy is facially neutral and closes the forum to all private uses, it still violates plaintiffs' First Amendment rights solely because the Building Authority acted with improper motives when it approved the new policy. Specifically, plaintiffs contend the Building Authority acted with one or more of the following unconstitutional motives when it closed the forum to everyone: (1) a desire to retaliate against these plaintiffs for suing the defendants in this action; (2) a desire to retaliate against these plaintiffs for their religious expression; and (3) an intent to discriminate against these plaintiffs' religious beliefs in particular and/or religion in general. The parties have quickly compiled and presented a substantial volume of evidence concerning the reasons for the Building Authority's decision. That volume of evidence and the speed with which it must be analyzed account for much of the length of this opinion. Despite that length, the court's decision ultimately turns on a factual determination about the Building Authority's motives in adopting the facially constitutional policy. On the existing record, the court finds that the defendants did not act with any improper motive when they decided to "close" the forum by prohibiting all private displays in the common areas of the building. Because plaintiffs have not shown they are reasonably likely to succeed on the merits of their claims, the court denies plaintiffs' motion for a preliminary injunction.

I. Background

Plaintiff Rabbi Abraham Grossbaum is an Orthodox Jewish rabbi affiliated with the Lubavitch Hasidic movement. He is a resident of Indianapolis. He is also the Executive Vice President of plaintiff Lubavitch of Indiana, Inc., which is a private, non-profit Orthodox Jewish organization incorporated under the laws of Indiana. Defendant Indianapolis-Marion County Building Authority is a municipal corporation organized under the laws of Indiana. The Building Authority is responsible for managing the City-County Building in downtown Indianapolis which houses a number of city and county agencies of government and some private tenants. Defendant Ronald L. Reinking is the general manager of the Building Authority. He administers the rules and regulations of the Building Authority and is responsible for granting or denying requests to use the lobby of the City-County Building for displays.

From 1985 through 1992, plaintiffs requested and received permission from the Building Authority to display their five-feet tall menorah in the lobby of the City-County Building during Chanukah.¹ In 1992 the Indiana Civil Liberties Union and the Jewish Community Relations Council questioned the display of the menorah in a public building like the City-County Building. In October 1993, the Building Authority adopted a new "Policy on Seasonal Displays" which prohibited displays of seasonal religious symbols in the lobby and other common areas of the building. Pursuant to that policy, plaintiffs were not permitted to display their menorah in 1993.

Before Chanukah in 1994, plaintiffs filed this action and sought a preliminary injunction against enforcement of the Policy on Seasonal Displays. Plaintiffs argued that the policy banned only seasonal religious displays, which amounted to viewpoint discrimination concerning expression in the forum on the subject of "the holiday season." See Lamb's Chapel v. Center Moriches Union Free School Dist., ___ U.S. ___, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993). On November 22, 1994, this court denied plaintiffs' motion for a preliminary injunction. Grossbaum v. Indianapolis-Marion County Bldg. Auth., 870 F.Supp. 1450 (S.D.Ind.1994). On November 29, 1994, the Court of Appeals issued an injunction pending appeal that enjoined enforcement of the Policy on Seasonal Displays. The Building Authority therefore permitted plaintiffs to display their menorah in the lobby of the City-County Building. Several other individuals and groups also applied for and received permission from the Building Authority to place religious displays in the lobby of the City-County Building. On August 15, 1995, the Court of Appeals reversed this court's decision and held that the Building Authority's Policy on Seasonal Displays subjected plaintiffs to unconstitutional viewpoint discrimination. Grossbaum v. Indianapolis-Marion County Bldg. Auth., 63 F.3d 581 (7th Cir.1995).

With that background, we come to the more recent events at issue today. On August 28, 1995, Rabbi Grossbaum requested permission from the Building Authority to place a menorah display in the lobby of the City-County Building during Chanukah in 1995. The Building Authority board of directors met on September 5, 1995, and discussed the possibility of amending the rules that govern access to the common areas of the City-County Building for display purposes. On October 2, 1995, the board met in executive session to discuss the present litigation. After the executive session, the board met in a public session and amended the rules governing use of the common areas in the building. The board voted to: (a) amend its "Rule 13" to prohibit all private displays in the common areas, including the lobby; (b) modify slightly the rule prohibiting political uses of the building; and (c) rescind the Policy on Seasonal Displays that the Court of Appeals had held unconstitutional. Relying on the amended Rule 13, Mr. Reinking wrote to Rabbi Grossbaum the next day denying his request to erect the menorah display in the lobby in 1995.

Plaintiffs then investigated the new rule and took depositions of Mr. Reinking, his assistant, and all five members of the Building Authority board. On November 29, 1995, plaintiffs filed an amended complaint and a second motion for preliminary injunction, this time seeking an injunction against enforcement of the new Rule 13 prohibition on all private displays in the lobby and other common areas. Plaintiffs do not challenge the facial constitutionality of the prohibition. Instead, they claim the new policy is unconstitutional because the Building Authority adopted it for one or more of three unconstitutional purposes: (1) to retaliate against plaintiffs for having sued the Building Authority; (2) to retaliate against plaintiffs for exercising their free speech rights by displaying the menorah; and/or (3) to discriminate against either plaintiffs' viewpoint or all religious viewpoints toward the holiday season. Chanukah begins at sundown on Sunday, December 17, 1995. The parties have submitted briefs, documentary exhibits, and extensive passages from depositions. At a hearing on December 11, 1995, both sides presented oral argument. This opinion states the court's findings of fact and conclusions of law for purposes of Fed.R.Civ.P. 65 and 52.

II. Preliminary Injunction Standard

Before the court may enter a preliminary injunction, the plaintiff must demonstrate "(1) some likelihood of succeeding on the merits, and (2) that it has `no adequate remedy at law' and will suffer `irreparable harm' if preliminary relief is denied." Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 11 (7th Cir.1992). If those elements are not satisfied, then the inquiry is over and the preliminary injunction must be denied. If those elements are met, the court then proceeds to consider "(3) the irreparable harm the non-moving party will suffer if preliminary relief is granted, balancing that harm against the irreparable harm to the moving party if relief is denied; and (4) the public interest, meaning the consequences of granting or denying the injunction to non-parties." Abbott Labs., 971 F.2d at 11-12. Accord, e.g., Vencor, Inc. v. Webb, 33 F.3d 840, 845 (7th Cir.1994); Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429, 1433 (7th Cir.1986).

There is no precise standard for the quantum of evidence required to obtain a preliminary injunction. Rather, the strength of the evidence and the potential harms involved are factors balanced on what the Seventh Circuit has called a discretionary sliding scale:

The district court, sitting as would a chancellor in

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