Jocham v. Tuscola County, 01-10385-BC.

• Decision Date: 07 January 2003
• Docket Number: No. 01-10385-BC.,01-10385-BC.
• Citation: 239 F.Supp.2d 714
• Parties: Anonka and Tammra JOCHAM, Plaintiffs, v. TUSCOLA COUNTY, Tuscola County Board of Commissioners, and John Does 1-5, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

239 F.Supp.2d 714

Anonka and Tammra JOCHAM, Plaintiffs, v. TUSCOLA COUNTY, Tuscola County Board of Commissioners, and John Does 1-5, Defendants.

No. 01-10385-BC.

United States District Court, E.D. Michigan, Northern Division.

January 7, 2003.

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David W. Wright, Bloomfield Hills, MI, Jean M. Hansen, Bloomfield Hills, MI, for Anonka Jocham, Tammra Jocham.

Daniel S. Saylor, Garan Lucow, Detroit, MI, Joseph Kochis, Grand Blanc, MI, for County of Tuscola.

Daniel S. Saylor, Detroit, MI, Joseph Kochis, Grand Blanc, MI, for Tuscola County Bd. of Com'rs.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS, GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, AND DENYING PLAITIFFS' MOTION FOR RELIEF FROM CASE MANAGEMENT ORDER

LAWSON, District Judge.

The plaintiffs in this case seek to enjoin the placement of a creche as part of a seasonal display in front of the Tuscola County, Michigan courthouse, and they complain about the treatment they received after they attempted to voice their objections to the nativity scene at a public meeting of the Tuscola County Board of Commissioners. On April 10, 2002, this Court entered a case management order following a case management and calendar conference attended by counsel for the parties in accordance with Federal Rule of Civil Procedure 26(a)-(c). Thereafter, the parties brought several discovery disputes to the Court, and on June 7, 2002 the Court entered an order adjudicating those disputes which provided, in part, that the plaintiffs could apply to the Court for relief from the case management order if information came to light suggesting that the defendants were withholding documents ordered to be produced. The matter is now Defore the Court will therefore grant the defendants' motion for summary judgment.

The Court heard oral argument from the parites in open court on October 30, 2002. Since that time, the plaintiffs have filed "Historical View," and "Objections to Defendants' 2002 Creche Activities and Invitation for Judicial View," which contain allegations about the display on the court house lawn during the 2002 holiday season. motions, which had been taken under advisement, are now ready for decision. The Court finds that the plaintiffs have not shown that there are any additional documents which the defendants should have made available or evidence that documents have been concealed, and the Court will therefore deny the plaintiffs' motion for relief from the Case Management and Scheduling Order. The Court also finds that the plaintiffs have failed to state claims for relief based on their stated theories under the Free Exercise Clause, the Due Process Clause, Sections 1985 and 1986 of Title 42 of the United States Code, the Americans with Disabilities Act, and various Michigan state and international laws, and the Court will therefore grant the defendants' motion to dismiss those respective counts of the amended complaint. However, the plaintiffs have stated a cognizable claim under the Equal Protection Clause, and the defendants' motion to dismiss that count will be denied. Finally, the Court finds that there is no genuine issue of material fact with respect to the plaintiffs' Establishment Clause claim, and the defendants are entitled to a judgment on that claim as a matter of law. The

I.

This case arises from the seasonal display that appears each December on the lawn of the Tuscola County Courthouse, and which includes a nativity scene commemorating the Christmas holiday. The defendants have supplied color photographs of the scene in question, the authenticity of which has not been challenged. See Photographs, Defs.' S.J. Ex. C.¹ On the front lawn to the right of the courthouse, a sizable nativity scene can be observed, featuring statues of Mary and Joseph, an infant in a manger, the three wise men, two shepherds, at least two sheep, a cow, a donkey, two camels, a small angel overlooking the creche itself, and a star on a pole. To the right of the nativity scene, two toy soldiers have been erected next to a frilly gate. A sign affixed near one of the soldiers indicates that this display is owned by the Caro Downtown Development Authority, and that the materials for it were donated by the Michigan Sugar Company. The front of the courthouse itself is adorned by two wreaths and a sizable "Seasons Greetings" message. Finally, lampposts surrounding the courthouse square are festooned with pine garlands.

In a letter dated December 8, 2001, counsel for the plaintiffs informed the Tuscola County Board of Commissioners that she "represents Caro citizens who have grave concerns regarding violations of the Establishment Clause of the First Amendment of the United States and Michigan Constitutions with respect to the nativity scene erected on the front lawn of the Tuscola County Courthouse." Hansen Letter, 12/8/2001, Defs.' S.J. Ex. A. The letter demanded that the offending display be dismantled no later than December 15, 2001. Id.

The parties agree that the plaintiffs, Anonka and Tammra Jocham, subsequently appeared with counsel at a Tuscola County Board of Commissioners meeting on December 11, 2001, and that during what appears to be a period set aside for citizen comments at the end of the meeting, plaintiff Anonka stood up and raised her concerns about the creche. There appears to be no dispute that Anonka's request was not well-received, and that several (but not all) Commissioners reacted angrily and indicated that they had no intention of ordering the nativity scene to be dismantled. Other attendees also apparently directed derisive comments toward the plaintiffs, who are the proprietors of "Anonka's Witch Museum," located one or two blocks from the courthouse.

On December 13, 2001, Norma Bates, the chairperson of the Tuscola County Board of Commissioners, sent counsel for the plaintiffs a letter in response to the plaintiffs' demand letter, in which she asserted that the Board had consulted its general counsel and concluded that the nativity scene, because it was privatelyfinanced and placed in a public forum, did not offend either the United States or Michigan constitutions. Bates Letter, 12/13/2001, Defs.' S.J. Ex. B. As a result, the letter stated, the Board would not hold further meetings on the matter or direct that the nativity scene be disassembled. Id.

The plaintiffs then filed their complaint in this Court on December 17, 2001 against Tuscola County and the Tuscola County Board of Commissioners, as well as various "John Does" who have allegedly conspired behind the scenes to deprive the plaintiffs of their state and federal constitutional and statutory rights. The complaint, later amended on April 16, 2002, alleges that the defendants have permitted the religious use of county government facilities and property, including the placement of lifelike religious idols on the courthouse front lawn. Am. Compl. ¶ ¶ 12-13, 15-17. the creche jallegedly is a Chiristain sysbol resonalbly associated with Chiristianity by any reasonable observer, the placement of which is intended to domonstrate intolerance for order religious views. Id. ¶ ¶ 18, 22. The plaintiffs futher allege that the front lawn of the courthouse is?. a public forum, and no written guideline or objective standards exist for the selection of particular exhibits to display on government property. Id. ¶¶ 26-28.

The plaintiffs allege further that they do not subscribe to Christian beliefs, they regularly pass by the courthouse in their everyday activities, they have viewed the creche several times in the past, and will also do so in the future if current practice continues. Id. ¶ ¶31-34. The plaintiffs, as "atheists," are "offended, affronted, intimidated, and distressed by seeing the creche and this worship," id. ¶ ¶34, 36, and perceive an endorsement by the defendants of Christian religion over others. Id. ¶39. Furthermore, plaintiff Anonka allegedly is an elderly woman, "physically disabled and handicapped," with a history of heart disease. Id. ¶ 38.

The amended complaint references plaintiffs' counsel's December 8, 2001 letter to the county Board, and describes the plaintiffs' request at the December 11, 2001 Board meeting that county "officials take immediate action to remove these religious idols and practices from government property, and for government property not to be used to advance their religion." Id. ¶ 43. The plaintiffs contend that the meeting was open and set up as a neutral, secure, and protected forum for the expression of citizen concerns, but that in response to their request, some County officials expressed their Christian views loudly and angrily while others remained silent in support. Id. ¶ ¶ 44, 46-47. Among other things, the plaintiffs were allegedly told "if you don't like it, don't look at it." Id. ¶ 66B. Plaintiff Anonka contends she was denigrated and humiliated in front of her daughter, neighbors, the press, and other attendees. Id. ¶ 049. Allegedly, neither plaintiff was granted the five minutes of public address to which they were entitled, id. ¶ 55, and their concerns were not rescheduled for a later hearing or brought up again at any time. Id. ¶ 58. According to the plaintiffs, a few days later, the Commissioners permitted a religious service to commence at the courthouse facilities, which condemned the plaintiffs. Id. ¶ 52. The service turned into a rally against the plaintiffs, and some of the participants spit on a reporter who had reported the events of the December 11, 2001 meeting. Id. ¶ 53. The plaintiffs allege that the community has turned against them and subjected them to widespread ridicule, including a boycott of plaintiff Anonka's witch museum. Id. ¶ 54, 60.

The amended complaint concludes by summarily asserting the following claims: (count 1) the First Amendment—Freedom of Religion Clause (both United States and Michigan...