Mercier v. City of La Crosse
| Decision Date | 03 February 2004 |
| Docket Number | No. 02-C-376-C.,02-C-376-C. |
| Citation | 305 F.Supp.2d 999 |
| Parties | Sue MERCIER, Elizabeth J. Ash, Angela Belcaster, Janet Bohn, Julie Chamberlain, Maureen Freedland, David Goode, Betty Hammond, Curt Leitz, Constance R. Long, David W. Long, Myrna D. Peacock, Becky Post, James L. Reynolds, Ellen Dodge Severson, Eric Severson, Leslie Slauenwhit, Herman S. Wiersgalla, Howard Wiersgalla, James E. Wiffler, Robert Wingate, Henyry Zumach and Freedom from Religion Foundation, Inc., Plaintiffs, v. CITY OF LA CROSSE, Defendant, and Fraternal Order of the Eagles, La Crosse Aerie 1254 Intervening Defendant. |
| Court | U.S. District Court — Western District of Wisconsin |
James A. Friedman, La Follette, Godfrey & Kahn, S.C., Madison, WI, for Bohn, Janet Chamberlain, Julie Ash, Elizabeth J. Freedland, Maureen Belcaster, Angela Freedom from Religion, Inc. Goode, David Hammond, Betty Leitz, Curt Long, Constance R. Long, David W. Mercier, Sue Peacock, Myrna D. Post, Becky Reynolds, James L. Severson, Ellen Dodge Severson, Eric Slauenwhit, Leslie Wiersgalla, Herman S. Wiersgalla, Howard Wiffler, James E. Wingate, Robert Zumach, Henry, Counsel for Plaintiffs.
Patrick J. Houlihan, La Crosse City Attorney, La Crosse, WI, for City of La Crosse.
Michael Dean, Michael D. Dean, LLC, Waukesha, WI, Francis J. Manion, American Center for Law & Justice, New Hope, KY, for Fraternal Order of Eagles, La Crosse Aerie 1254, Counsel for Defendants.
This case has a long and somewhat tortuous history. The dispute began in 1985 when Phyllis Grams, a resident of La Crosse, Wisconsin, complained to the La Crosse Common Council about a monument of the Ten Commandments that was displayed in Cameron Park, which is located in downtown La Crosse and owned by defendant City of La Crosse. The president of plaintiff Freedom from Religion Foundation wrote a letter to the council in which she suggested that the monument be removed from the park. When the council denied the request, Grams and the Foundation filed a lawsuit in this court contending that the presence of the monument in a city-owned park was a violation of the establishment clause of the First Amendment. In 1987, I dismissed the action because the plaintiffs had failed to show that they had standing to sue. Freedom from Religion Foundation, Inc. v. Zielke, 663 F.Supp. 606 (W.D.Wis.1987), aff'd, 845 F.2d 1463 (7th Cir.1988).
In 2001, the Foundation asked the City again to remove the monument from the park. After the City declined offers from the Foundation, from defendant Fraternal Order of the Eagles and from a local Episcopal church to move the monument to another location, the Foundation and 22 residents of the La Crosse area filed a new lawsuit for declaratory and injunctive relief against the City in July 2002. One month later, the City sold the monument and a 20' × 22' parcel of land underneath it to the Order, which had originally donated the monument to the City in 1960s. In October 2002, the Order installed a fence around the parcel and placed signs on each side that indicated the parcel was now privately owned. After both parties had filed motions for summary judgment, the City erected a second fence just outside the boundary of the Order's parcel. The City posted a sign on the fence indicating that it did not own the property and did not endorse the religious speech.
In an opinion and order dated July 14, 2003, I granted plaintiffs' motion for summary judgment. I concluded that each of the plaintiffs had shown that they had incurred a concrete injury because of the monument's presence in the park and, therefore, they had standing to challenge the display. In addition, I concluded that the City had violated the establishment clause, both by maintaining the monument on public property and by attempting to prevent its removal by selling a small piece of the park to the Order. Finally, I concluded that removal of the monument was the only way that the City could effectively eliminate its endorsement of the religious message. Mercier v. City of La Crosse, 276 F.Supp.2d 961 (W.D.Wis.2003). On August 5, 2003, I entered judgment in favor of plaintiffs, ordering the City to remove the monument from the park.
On August 11, 2003, the Order filed a motion to intervene and a motion to alter or amend the judgment or, in the alternative, to provide relief from the judgment. With respect to its motion to intervene, the Order argued that, because it was the buyer of the parcel and the monument, it would be a violation of due process to invalidate the sale without giving the Order an opportunity to be heard. In addition, the Order argued that it should be given a chance to show that the plaintiffs lacked standing to sue, that the constitutionality of the monument's presence before the sale was a moot question, that plaintiffs' suit was barred by the doctrine of laches and that the July 14 opinion and order was inconsistent with circuit precedent.
In an opinion and order dated September 24, 2003, 2003 WL 23315790, I concluded that the Order was entitled to be heard before its property interest was destroyed. I granted the Order's motion to intervene, vacated the August 5 judgment and established a new scheduling order to allow the parties to conduct additional discovery and file new dispositive motions.
Now before the court is defendant Fraternal Order of the Eagles' motion for summary judgment. It argues that defendant La Crosse has ended any endorsement by selling the monument along with a small portion of the park. The Order's motion will be denied; I adhere to the conclusion reached in the July 14 opinion and order. The sale of the property did not cure the establishment clause violation but only shifted it. Now, instead of directly endorsing the religious speech on the monument by displaying it on city-owned land, the City has demonstrated its endorsement by giving the Order permanent, preferential access to display the religious speech on land that is surrounded by city-owned property. I cannot find any meaningful difference between a city's own display of a religious monument and a city's grant of permission to one (and only one) private group to permanently display the monument in the same location when the monument is still surrounded by city property. Freedom from Religion Foundation, Inc. v. City of Marshfield, 203 F.3d 487, 493 (7th Cir.2000), does not compel a contrary result.
Plaintiffs did not file their own motion for summary judgment. (The City did not file its own motion either; instead, it filed a brief in support of the Order's motion for summary judgment). In plaintiffs' response brief, they ask the court to grant summary judgment in their favor on the court's own motion. Plts.' Br., dkt. # 110, at 2. A district court may enter summary judgment in favor of a nonmoving party when there are no material factual issues in dispute so long as the losing party is given notice and opportunity to come forward with its evidence. Osler Institute, Inc. v. Forde, 333 F.3d 832, 836 (7th Cir.2003).
In this case, there would be no purpose served in holding a trial. The facts of record have not changed since the July 14 opinion and order and these facts are undisputed. Although the Order had an opportunity to depose the plaintiffs or conduct other discovery to develop its standing, mootness and laches arguments, it has submitted no additional evidence of its own. Further, the Order appears to have abandoned its arguments related to mootness and laches. It did not raise these issues in its brief in chief and it did not argue in its reply brief that summary judgment should be denied to plaintiffs because it wanted to present these issues at trial. In any event, as I noted in the September 24 opinion and order, the Order's mootness and laches arguments could not succeed. The sale of the monument could moot the issue of the constitutionality of the pre-sale display only if the sale were valid. Because I have concluded that the sale violated the establishment clause, the City still owns the monument and I cannot avoid deciding the constitutionality of the monument's display on public property. Any argument that the doctrine of laches bars plaintiffs' challenge to the sale of the parcel is without merit because the plaintiffs amended their complaint to challenge the sale within a few months after the sale was made.
The only potential factual question raised by the Order is whether plaintiffs have standing. In a footnote in its brief in chief, the Order says that it "assumes" for the purpose of its motion for summary judgment that plaintiffs have standing but "anticipates that it will contest the standing issue in opposing plaintiffs' expected summary judgment motion." Order's Br., dkt. # 107, at 1 n. 1. When plaintiffs did not file a motion for summary judgment the Order wrote in its reply brief: Order's Reply Br., dkt. # 114, at 1 n. 1.
The Order's argument has two problems. First, as a general rule, a court may not "assume" that a party has standing for the purpose of granting a motion for summary judgment on the merits. If a party does not have standing to sue, there is no "case or controversy" under Article III and a court does not have subject matter jurisdiction to hear the case. Discovery House, Inc. v. Consolidated City of Indianapolis, 319 F.3d 277, 279 (7th Cir.2003). Thus, a court has an independent obligation to determine whether standing exists before it considers the merits of a dispute. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (...
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