Mercier v. Fraternal Order of Eagles

• Decision Date: 03 January 2005
• Docket Number: No. 04-1524.,No. 04-1321.,04-1321.,04-1524.
• Parties: Sue MERCIER, Elizabeth J. Ash, Angela Belcaster, et al., Plaintiffs-Appellees, v. FRATERNAL ORDER OF EAGLES, La Crosse Aerie 1254, Intervening Defendant-Appellant, and City of La Crosse, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 693

395 F.3d 693

Sue MERCIER, Elizabeth J. Ash, Angela Belcaster, et al., Plaintiffs-Appellees, v. FRATERNAL ORDER OF EAGLES, La Crosse Aerie 1254, Intervening Defendant-Appellant, and City of La Crosse, Defendant-Appellant.

No. 04-1321.

No. 04-1524.

United States Court of Appeals, Seventh Circuit.

Argued September 8, 2004.

Decided January 3, 2005.

Rehearing En Banc Denied February 28, 2005.^*

James A. Friedman, James D. Peterson (argued), Lafollette, Godfrey & Kahn, Madison, WI, for Plaintiffs-Appellees.

Francis J. Manion (argued), American Center for Law & Justice, New Hope, KY, Patrick J. Houlihan (argued), La Crosse City Attorney, La Crosse, WI, for Defendants-Appellants.

Before BAUER, MANION, and KANNE, Circuit Judges.

MANION, Circuit Judge.

For almost forty years, a monument inscribed with the Ten Commandments (the "Monument") has occupied a spot in Cameron Park, a public park in the City of La Crosse, Wisconsin ("La Crosse" or the "City"). Recently, certain residents of La Crosse, joined by an advocacy group, sued the City claiming the Monument violated the Establishment Clause of the First Amendment. In response, La Crosse sold a portion of the park and the Monument to the Order of Eagles, the service organization that had originally donated the Monument to the City. The district court held that this sale violated the Establishment Clause. We reverse.

I.

In the fall of 1964, the local chapter (or "Aerie") of the Fraternal Order of Eagles (the "Eagles") requested the permission of the City to install in Cameron Park ("Cameron Park" or the "Park") a granite monument bearing an inscription of the Ten Commandments and adorned with certain religious and other symbols associated with this country (an eagle grasping the American flag in its talons and the "all-seeing eye" most often associated with the one dollar bill).¹ The La Crosse Park Board considered the proposal at its September 8, 1964 meeting and, on October 5, 1964, gave the Eagles permission to erect the Monument in the Park.

The installation ceremony was scheduled to coincide with the Eagles' Sixty-third Annual Convention to take place in La Crosse in June, 1965. The particular location of the Monument within the Park was left to the determination of the City's director of parks and recreation.

Cameron Park occupies one and one-half acres in downtown La Crosse. The Park is classified by the City as a "neighborhood park." According to the City's 1993 "Park and Recreation Plan," "the purpose of a neighborhood park is to provide an attractive neighborhood setting and a place to be used primarily for recreation for people of all ages." La Crosse owns more than 1,300 acres of land designated as parkland. Of that parkland, fifty-six acres are designated as neighborhood parks.

The Park, rectangular in shape, is bordered on three sides by sidewalks and public streets, and on one side by private property. A map of the Park shows that it is intersected by walkways and dotted with trees. The Park is surrounded by commercial property, including a bank and a restaurant. There are no governmental buildings within sight of the Park, and it is not necessary to walk through or past the Park to enter into any governmental buildings.

The parks and recreation director chose a location for the Monument very near the northeastern corner of the Park. The Monument is placed seventeen feet south from a sidewalk bordering the park and sixty feet west from another sidewalk bordering the park.² Although there is a walkway through the Park and near the Monument, it runs behind the face of the Monument, and a visitor walking along the walkway would not see the inscription. The Monument does not occupy a particularly privileged location in the aesthetic scheme of the Park. The attention of visitors to the Park is not drawn to the Monument by it being displayed in a particularly prominent location or setting (such as, for instance, on a hill overlooking the surrounding landscape or at the center of the Park with walkways leading the visitor to the Monument). The location of the Monument near the corner of the Park was not, however, accidental. The Monument is, and has been since its construction, directly across from the Eagle's La Crosse headquarters and the Monument's inscription faces the headquarters.³

In April 1965, after the approval of the Monument but before its installation, La Crosse suffered severe flooding from the Mississippi River. Several hundred high-school students from the area, and as far away as Milwaukee, volunteered to help with flood-fighting efforts, particularly the filling of more than 51,000 sandbags. The students' efforts were recounted in a "special flood edition" of the local newspaper.

Two months later, on June 19, 1965, the Monument was dedicated. Participants in the dedication ceremony included Alvin A. Watson, a past president of the La Crosse Aerie, a minister of the local Lutheran church, a state judge, and the president of the Park Board. In his remarks dedicating the Monument, Watson paid tribute to the youth who helped fight the flood in April. The local paper reported the next day that the Monument "was dedicated especially to those young people who helped during this spring's flood."

For the next twenty years the Monument generated little (if any) controversy. During that time (and through today), the Eagles assumed full responsibility for the preservation and maintenance of the Monument. Members of the Eagles have planted and watered a small flower bed surrounding the Monument. Further, the Monument has been illuminated at night by a light attached to the roof of the Eagles' building. The City has expended no funds in maintaining the Monument.

In 1985, Phyllis Grams, a resident of La Crosse, joined by the coordinating Appellee in this case, the Freedom From Religion Foundation, Inc. (the "Foundation"), wrote a letter to the La Crosse Common Council, asking that the Monument be removed from the Park. The Council denied the request, and Grams and the Foundation filed a lawsuit in the United States District Court for the Western District of Wisconsin, contending that the location of the Monument in the Park violated the Establishment Clause of the First Amendment to the Constitution. This case was eventually dismissed in 1987 for lack of standing. Freedom From Religion Foundation, Inc. v. Zielke, 663 F.Supp. 606 (W.D.Wis.1987), aff'd, 845 F.2d 1463 (7th Cir.1988).

More than a decade later, in June 2001, the Foundation again asked the City to remove the Monument from the Park. The City Council again refused. In September 2001, the Secretary for the La Crosse Aerie wrote to the City's attorney and offered to take back the Monument and display it in a location visible to the public. The City declined the offer. In March 2002, a local Episcopal church also offered to move the Monument to another location. The City again declined the offer. Finally, the Foundation also offered to move the Monument to another location. Again, the City declined the offer. In April 2002, the City Council addressed the Monument controversy and passed a resolution. The resolution noted that: 1) there was a threat of a renewed lawsuit by the Foundation, 2) the Monument was given to the City to honor the flood-fighting effort of area youth, 3) the Council believed the Monument did not violate the Constitution, 4) the Monument deserved to remain in its current location, and 5) the Council would take the necessary steps to keep the Monument in its current location.

By June 2002, the City reached what it saw as a solution and decided to sell the Monument to the Eagles along with a twenty-foot by twenty-two-foot parcel of land under and surrounding the Monument. On June 20, 2002, the La Crosse Parks Commission recommended the sale of this parcel.

On July 1, 2002, the Foundation, joined by two fictitiously named plaintiffs, filed a suit against the City challenging the display of the Monument in the Park. The district court later denied the individual plaintiffs' motion to proceed anonymously. On August 7, 2002, twenty additional individuals were named as plaintiffs. Each of the individual plaintiffs asserted essentially the same facts. They are all residents of La Crosse and claim that they avoid the Park because of the presence of the Monument, or that they are emotionally disturbed or distressed when they travel to one of the commercial businesses surrounding the Park because of the presence of Monument.

Ten days after the Foundation filed its suit, on July 11, 2002, the City Council adopted, by a 5-3 vote, a resolution: authorizing the sale of the parcel; directing the City Assessor to determine the fair market value of the parcel; and authorizing the Mayor and City Clerk to execute any necessary deeds to effectuate the sale of the parcel. The resolution also noted that the Monument had been dedicated to the flood fighters. The resolution cited as authority for the sale of the parcel Wisconsin Statute § 27.08. This statute grants a city council the power, in conjunction with a city's board of park commissioners, to sell park land when that land is no longer needed for park purposes.⁴ In the resolution, the La Crosse City Council stated that the parcel at issue was no longer needed for park purposes.

The sale to the Eagles took place on August 21, 2002. As indicated above, the plot of land sold to the Eagles was roughly a twenty-foot by twenty-two-foot area of the Park (440 square feet) where the Monument was located. This plot is bordered on three sides by the Park and on one side by a sidewalk. The City Assessor had previously determined that the fair market value of the parcel at issue was $2,640 or $6.00 per square foot. The Eagles paid this amount. The quitclaim deed recording the transfer provided that "appropriate fencing, landscaping and signage shall be provided by 10/24/02 and maintained in order to commemorate the youth of the...