Grossbaum v. Indianapolis-Marion County Building Auth.

• Decision Date: 20 November 1996
• Docket Number: INDIANAPOLIS-MARION,No. 95-3976,95-3976
• Citation: 100 F.3d 1287
• Parties: RABBI ABRAHAM GROSSBAUM and LUBAVITCH of INDIANA, INC., Plaintiffs-Appellants, v.COUNTY BUILDING AUTHORITY and RONALD L. REINKING, in his Capacity as General Manager, Defendants-Appellees
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1287

100 F.3d 1287

RABBI ABRAHAM GROSSBAUM and LUBAVITCH of INDIANA, INC., Plaintiffs-Appellants, v. INDIANAPOLIS-MARION COUNTY BUILDING AUTHORITY and RONALD L. REINKING, in his Capacity as General Manager, Defendants-Appellees.

No. 95-3976

In the United States Court of Appeals

Seventh Circuit

ARGUED SEPTEMBER 6, 1996

DECIDED NOVEMBER 20, 1996

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division, David F. Hamilton, Judge, No. 94 C 1801

Nathan Lewin (argued), Niki Kuckes, David S. Cohen, Miller, Cassidy, Larroca & Lewin, Washington DC., B. Keith Shake, Henderson, Daily, Withrow & Devoe, Indianapolis, IN, for Plaintiffs-Appellants.

Thomas J. Costakis, Krief, Devault, Alexander & Capehart, Indianapolis, IN, for Defendants-Appellees.

Before CUMMINGS, BAUER, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

This case presents the issue of what role a government body's motive plays in constitutional analysis when that body tries to regulate speech in a nonpublic forum. The Indianapolis-Marion County Building Authority amended its rules and regulations to prohibit private groups and individuals from exhibiting displays in the lobby of its City-County Building. This rule prevented the plaintiffs from displaying a menorah in the lobby as they had done for eight years between 1985 and 1992. The plaintiffs sought a preliminary injunction against the new rule so they could again display their menorah. The plaintiffs contended that even though the rule is viewpoint-neutral, its adoption was motivated by an unconstitutional desire to retaliate against the plaintiffs for previous litigation and to discriminate against their religious viewpoint. The District Court denied the motion for the preliminary injunction. Because we hold that the motive of a government body is irrelevant when it enacts a content-neutral rule that regulates speech in a nonpublic forum, we affirm.

I. HISTORY

This is the second time that this case has come before us. See Grossbaum v. Indianapolis-Marion County Building Authority, 63 F.3d 581 (7th Cir. 1995) (Grossbaum I). In the previous appeal, Rabbi Grossbaum and Lubavitch of Indiana, Inc.¹ ("Lubavitch") successfully challenged a policy of the Indianapolis-Marion County Building Authority ("Building Authority") that prohibited religious displays and symbols (such as the plaintiffs' menorah) in the lobby of the City-County Building² in Indianapolis. We held that "the prohibition of the menorah's message because of its religious perspective was unconstitutional under the First Amendment's Free Speech Clause." Grossbaum I, 63 F.3d at 592. This second appeal now challenges a new Building Authority policy that prohibits all private displays, religious or otherwise.

From 1985 to 1992, Rabbi Grossbaum displayed a five-foot high, wooden menorah each year in the City-County Building lobby. In 1993, however, the Indiana Civil Liberties Union ("ICLU") and the Jewish Community Relations Council ("JCRC") both asked the Building Authority to change its policy. The ICLU argued that religious displays in a nonpublic forum violated the Establishment Clause and that the Building Authority should therefore designate the lobby as a "public forum" to make it clear that all groups would have access to the lobby. The JCRC, meanwhile, wrote a letter to the Building Authority asking that all religious displays be banned so that groups such as the Ku Klux Klan could not use the menorah's presence as an argument for letting in their religious displays.

Expressing concern about losing control over the lobby if it became a public forum, the Building Authority Board of Directors in late 1993 banned all religious displays, thus simultaneously satisfying the JCRC and mooting the ICLU's Establishment Clause complaint. Lubavitch, however, sought a preliminary injunction against the policy, alleging that it was an unconstitutional exclusion of speech protected by the First Amendment. As mentioned above, this court agreed and granted Lubavitch injunctive relief. 63 F.3d at 582.

After our August 1995 decision, however, the Building Authority Board again modified its lobby display policy. At its October 2, 1995 meeting, the Board amended Rule 13 of its "Rules and Regulations Governing The City-County Building and Grounds" to read, in part:

No displays, signs or other structures shall be erected in the common areas by any non-governmental, private group or individual since such objects may interfere with unobstructed and safe ingress and egress by employees of the governmental tenants and by the general public conducting business with government offices and courts in the City-County Building.

On November 29, 1995, Lubavitch amended its original complaint and again sought a preliminary injunction to allow the display of its menorah. Although Rule 13 is content-neutral, Lubavitch claimed that the Board enacted the new rule with an unconstitutional intent. More specifically, Lubavitch alleged two counts under 42 U.S.C. sec. 1983: 1) that the Board intended to retaliate against Lubavitch for exercising its right to seek judicial relief and its right to speak in the City-County Building lobby, and 2) that the Board intended to perpetuate the viewpoint discrimination that the Board had earlier attempted when it banned all religious displays in the lobby.

Lubavitch offered three general categories of evidence to support its claims of unconstitutional motive. First, Lubavitch claimed that the Building Authority enacted Rule 13 in a surreptitious manner. Rule 13 was adopted less than two months after this court's decision in favor of Lubavitch, and the only public notice that the Board might change Rule 13 at its October 1995 meeting was a vague agenda item referring to "Policies on Use of Common Areas." The Building Authority responded, however, that it had at all times followed Indiana's Open Door Law procedures. Second, Lubavitch disputed the Board's justification for the new Rule 13. According to the Board's minutes, the Board banned private displays to assure the free flow of pedestrian traffic in the lobby. The minutes also state that lobby congestion was a particular concern of the Board after it had approved new security measures (such as metal detectors in the lobby) in June 1995. Lubavitch, however, argued that there was no history of displays disrupting lobby traffic that would justify banning all private displays. Third, Lubavitch cited deposition testimony by Board members that it was the Board's intent to ban religious displays. The Building Authority countered that the testimony was taken out of context in that the admission of a desire to ban religious displays was merely a logical implication of the Board's broader desire to ban all private displays.

The District Court denied Lubavitch's motion for a preliminary injunction, finding that the plaintiffs had not shown a reasonable likelihood of prevailing on either their retaliation or their viewpoint discrimination claim. 909 F. Supp. 1187, 1211 (S.D. Ind. 1995). The court held that although the new Rule 13 was a response to Lubavitch's prior litigation, the rule "remedied the constitutional violation and was not motivated by any desire to punish plaintiffs or to get even with them for filing suit." Id. Similarly, the court found that the Board's decision was not "a mask for a desire to prohibit the expression of these plaintiffs' or others' religious beliefs." Id. Because the balance of harms to the parties was not lopsided, the District Court therefore denied the preliminary injunction. Lubavitch appealed pursuant to 28 U.S.C. sec. 1292(a)(1), which gives us jurisdiction to review interlocutory orders that deny injunctive relief.

II. ANALYSIS

A. Standard of Review

In considering a motion for a preliminary injunction, a district court must first determine whether the moving party has demonstrated 1) some likelihood of prevailing on the merits, and 2) an inadequate remedy at law and irreparable harm if preliminary relief is denied. If the movant demonstrates both, the court must then consider 3) the irreparable harm the non-movant will suffer if preliminary relief is granted, balanced against the irreparable harm to the movant if relief is denied; and 4) the public interest, meaning the effect that granting or denying the injunction will have on nonparties. Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1067 (7th Cir. 1994).

When we review a trial court's grant or denial of a preliminary injunction, we subject findings of fact to clear error review, Fed. R. Civ. P. 52(a); we review a trial court's discretionary balancing of factors under an abuse of discretion standard, Gould v. Lambert Excavating, Inc., 870 F.2d 1214, 1217 (7th Cir. 1989); and we review a trial court's legal conclusions de novo, West Allis Memorial Hosp., Inc. v. Bowen, 852 F.2d 251 (7th Cir. 1988).

B. The Role of Motive in Constitutional Doctrine

Before addressing Lubavitch's specific claims of retaliation and viewpoint discrimination, a few words are appropriate to consider exactly when and why the motives of government actors are relevant in constitutional analysis. Both parties in this case seem to assume that if the Building Authority Board was motivated by an intent to retaliate against Lubavitch or to discriminate against religious viewpoints then ipso facto the Board violated the Constitution. This leap from nefarious motive to constitutional violation, however, is by no means an automatic one under constitutional case law.

Motive is, of course, relevant to a number of constitutional claims. In Equal Protection Clause analysis, for example, courts often must inquire into the motives of legislators or other government actors.³ See, e.g., Miller v. Johnson, ___ U.S. ___, ___, 115 S. Ct. 2475, 2488 (1995) (voting district violates Constitution if race was "the predominant factor motivating the legislature's decision...