Habecker v. Town of Estes Park, Colorado
| Decision Date | 21 September 2006 |
| Docket Number | Civil Action No. 05-cv-00153-EWN-MJW. |
| Citation | 452 F.Supp.2d 1113 |
| Parties | David HABECKER and The Freedom from Religion Foundation, Inc., Plaintiffs, v. TOWN OF ESTES PARK, COLORADO; Board of Trustees of the Town of Estes Park, Colorado; Lori Jeffrey-Clark, Trustee of the Town of Estes Park, Colorado; Sue Doylen, Trustee of the Town of Estes Park, Colorado; Chuck Levine, Trustee of the Town of Estes Park, Colorado; Wayne Newsom, Trustee of the Town of Estes Park, Colorado; Bill Pinkham, tee of the Town of Estes Park, Colorado; John Baudek, Mayor of the Town of Estes Park, Colorado; Vickie O'Connor, Town Clerk of, the Town of Estes Park, Colorado; Greg White, Town Attorney for the Town of Estes Park, Colorado; Estes Park Citizens for Representative Government; Dewey Shanks, Member, Estes Park Citizens for Representative Government; Norman D. Pritcliard, Member, Estes Park Citizens for Representative Government; and Richard H. Clark, Member, Estes Park Citizens for Representative Government; Defendants, and United States of America, Intervenor Defendant. |
| Court | U.S. District Court — District of Colorado |
Robert R. Tiernan, Atty at Law, Denver, CO, for Plaintiffs.
Steven Jay Dawes, Sophia Hua Tsai, Light, Harrington & Dawes, P.C., Denver, CO, Herbert C. Phillips, Hayes, Phillips, Hoffmann & Carberry, PC, Fairplay, CO, for Defendants.
Kevin Thomas Traskos, U.S. Attorney's Office, Denver, CO, Theodore C. Hirt, U.S. Department of Justice, Washington, DC, for Intervenor-Defendant.
ORDER AND MEMORANDUM OP DECISION
Plaintiff David Habecker was an elected town trustee of the Town of Estes Park, Colorado, until he was recalled by the voters on March 22, 2005, in a recall election dominated by the issue of whether those voters wished to continue to be represented by a trustee who had refused to stand and recite the Pledge of Allegiance at trustee meetings, as Mr. Habecker had done. Believing primarily that this denouement of events precipitated by his refusal violated his rights under the United States Constitution, he brought this federal civil rights case arising under 42 U.S.C. § 1983 (2006) ("section 1983") and the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02 (2006) (the "Declaratory Judgment Act"). The other Plaintiffis Freedom From Religion Foundation, Inc. ("Plaintiff Foundation"), a nonprofit corporation of which Mr. Habecker is a member and which exists to promote the separation of church and state. Defendants are: (1) the Town of Estes Park, Colorado and certain official, representatives thereof, including the town board of trustees (the "Board"), mayor John Baudek ("Defendant Mayor"), town clerk Vickie O'Connor ("Defendant Clerk"), and town attorney Greg White (together, "Town Defendants"); and (2) Estes Park Citizens for Representative Government and three of its members Dewey Shanks, Norman Pritchard, and Richard Clark (together, "Committee Defendants"). Plaintiffs allege that Defendants violated Plaintiff. Habecker's constitutional rights by requiring him to recite the Pledge of Allegiance during Board meetings and subjecting him to a recall election based on his refusal to do so.1 Plaintiffs seek declaratory relief, injunctive relief, and damages. This matter is before the court on: (1) "Plaintiffs' Motion for Summary Judgment," filed July 30, 2005; (2) "Intervenor United States Of America's Motion to Dismiss or, in the Alternative, Cross-Motion for Summary Judgment, and Supporting Brief," filed September 28, 2005; and (3) "Town Defendants' Motion for Summary Judgment, or in the Alternative, Motion to Dismiss," filed September 28, 2005. Jurisdiction is premised primarily upon the existence of a federal question, 28 U.S.C. § 1331 (2006).
Before turning to the substance of the case, a brief history of the matter at its heart is instructive. The pledge of allegiance (the "Pledge") was initially conceived more than a century ago, and appeared in a widely circulated national magazine in 1892 to commemorate Christopher Columbus's voyage to America. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 6, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). In 1942, Congress first codified the Pledge in a set of "`rules and customs pertaining to the display and use of the flag of the United States of America.'" Id. The Pledge contained no reference to God until 1954, when Congress approved amendments leading to the Pledge generally known today.2 Act of June 14, 1954, ch. 297, 68 Stat. 249.
The Pledge is currently codified at Title Four of the United States Code, which covers, in relevant part, treatment of the flag and seal of the United States. 4 U.S.C. § 1 (2006). Section four of Title Four provides the body of the Pledge and the manner in which it should be recited.
The Pledge of Allegiance to the Flag: "I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.", [sic] should be rendered by standing at attention facing the flag with the right hand over the heart. When not in uniform[,] men should remove any nonreligious headdress with their right hand and hold it at the left shoulder, the hand being over the heart. Persons in uniform should remain silent, face the flag, and render the military salute.
Id. 4. As the Supreme Court has held, Elk Grove, 542 U.S. at 6, 124 S.Ct. 2301.
From 1984 through his recall in 2005, Plaintiff Habecker intermittently served in an elected position as a trustee on the Board. During all times pertinent to the case at bar, the Board conducted biweekly formal meetings, which all trustees were required to attend. The Board meetings were open to the public.
At a meeting that took place on May 11, 2004, Defendant Mayor, himself a trustee on the Board, announced a new policy of opening Board meetings with a recitation of the Pledge. Defendants contend that recitation of the Pledge was not mandatory or a condition of serving on the Board. At the May 11, 2004 Board meeting, and for several subsequent meetings, Plaintiff Habecker stood and recited the Pledge, but omitted the phrase "under God" contained therein. Beginning with the Board meeting on September 14, 2004, and at all meetings thereafter, Plaintiff Habecker remained seated and refrained from reciting the Pledge.
At some point after Plaintiff Habecker began refraining from reciting the Pledge, Committee Defendants organized efforts to request an election to recall Plaintiff Habecker from office. As required by Colorado law, Committee Defendants wrote a petition, in which they set forth a statement of grounds for recall. The "summary of proposed recall of trustee [Plaintiff] Habecker" read as follows:
Electors suffer loss of confidence in [Plaintiff] Habecker's ability to represent citizens' national pride, patriotism, and common decency. Prior to [Board] meetings, he purposefully and irreverently chooses to publicly sit, facing away from the flag of the United States, during recital of the Pledge []. His defiant behavior occurs because the phrase "[] under God []" offends him. He states he intends to continue until the United States Congress strikes the phrase from the Pledge[].
[Plaintiff] Habecker failed to reveal this violation of his principles during campaigns for election. We consider this omission a deliberate tactic to assure voter ballots towards his election. We consider this tactic unethical and unacceptable.
We respect [Plaintiff] Habecker's right to free speech under the Constitution of the United States, but insist on maintenance of responsibility, accountability, leadership, respect for others, and high standards of public conduct. His vital beliefs regarding church/state personal conflicts were not revealed at the critical time of election. We do not regard these actions, omissions or motivations honorable, and demand his removal from this elected position.
On November 24, 2004, Committee Defendants filed the petition.
On December 2, 2004, Defendant Clerk certified the petition as facially and procedurally sufficient. On December 14, 2004, the Board held a meeting, at which it received the petition and scheduled a recall election to take place on February 15, 2005. Plaintiff Habecker neither filed a written protest with Defendant Clerk nor requested judicial review of the petition for sufficiency. On February 10, 2005, upon motion by Plaintiff Habecker, this court issued a preliminary injunction enjoining the recall election, then scheduled to be held February 15, 2005. On March 2, 2005, this court reconsidered the matter and dissolved the preliminary injunction.
On March 8, 2005, the Board held a meeting, at which it scheduled the recall election to take place on March 22, 2005. The election took place as scheduled, and Plaintiff Habecker lost his seat on the Board as a result.
On January 28, 2005, Plaintiff Habecker individually initiated this action by filing a complaint in this court. Plaintiff Habecker sought: (1) declaratory judgments that the Pledge and Colorado law providing for recall elections are both unconstitutional; (2) injunctions, against Defendants, proscribing both the recall election and recitation of the Pledge during Board meetings; and (3) damages.
Concurrently with the initial complaint, Plaintiff Habecker filed a motion for a preliminary injunction, in which he sought to enjoin Defendants from: (1) conducting the recall election', and (2) including the Pledge in Board meetings. On February 7, 2005, Town Defendants filed a skeletal response to Plaintiff Habecker's motion,...
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