Satawa v. Bd. Of County Rd. Comm'rs, 09-CV-14190-DT

CourtUnited States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
Writing for the CourtGerald E. Rosen
Docket NumberNo. 09-CV-14190-DT,09-CV-14190-DT
Decision Date19 April 2011

JOHN SATAWA, Plaintiff,
OF MACOMB COUNTY, et al., Defendants.

No. 09-CV-14190-DT


Dated: April 19, 2011.

Hon. Gerald E. Rosen


At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on April 19, 2011
PRESENT: Honorable Gerald E. Rosen
Chief Judge, United States District Court

On October 23, 2009, Plaintiff John Satawa filed a Complaint in this Court seeking declaratory and injunctive relief and nominal damages predicated upon the alleged violation of his First Amendment right to free speech (Count I); violation of the Establishment Clause of the First Amendment (Count II); and violation of the Equal Protection Clause of the Fourteenth Amendment (Count III). All of Plaintiff's claims arise out of the Macomb County Road Commission's decision to deny Plaintiff a permit to place a creche and Nativity display during the 2009 Christmas season (from November 28, 2009 to January 9, 2010) on the median in the

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middle of Mound Road south of Chicago Road in Warren, Michigan. Plaintiff's Complaint was followed by a Motion for Temporary Restraining Order and Preliminary Injunction seeking preliminary injunctive relief based upon Plaintiffs argument that the Road Commission's decision violated his First Amendment right to engage in private, religious expression in a traditional public forum. The Road Commission countered that the Mound Road median is not a traditional public forum. The Commission further argued that, even if the median is a traditional public forum, and its decision to deny the permit does regulate protected speech, its decision serves a compelling state interest the Commission's statutory interest to keep public roads and rights of way reasonably safe for public vehicular traffic and was narrowly drawn to achieve that end. The Commission further argued that to make an exception for the Plaintiffs Nativity scene would violate the Establishment Clause of the First Amendment.

After hearing oral argument on Plaintiff's motion, the Court, with the parties and their counsel, conducted a lengthy site visit to view the precise location of Mr. Satawa's proposed display and to itself drive the relevant roadways and intersections. The Court thereafter met with the parties and counsel, outlined its specific questions and concerns, and requested supplemental filings from the parties.

On December 28, 2009, the Court entered an Opinion and Order denying Plaintiff's Motion for Temporary Injunction. In that Opinion and Order, with regard to the merits of Plaintiff's First Amendment claim, the Court found it unnecessary to decide whether or not the Mound Road median was a "public forum" because it determined that the Defendants had demonstrated a compelling interest for denying Plaintiff the permit to place the Nativity display on the median--to-wit, keeping county roads safe for vehicular traffic--thereby satisfying even

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the strict scrutiny standards applied to the regulation of speech in traditional public fora. See Satawa v. Bd. of County Road Com'rs of Macomb County, 687 F. Supp. 2d 682, 699-700 (E.D. Mich. 2009). In this regard, although the Court found that Defendants' argument that there was a danger of the structure being struck by a vehicle traveling down Mound Road or in the intersection to be "purely speculative," it found merit in Defendants' alternative justification that the structure and display could impede sight lines. Specifically, the Court found that "the creche could obstruct the view of motorists driving east-bound on Chicago Road of traffic traveling north bound on Mound Road causing a potentially significant safety risk where persons traveling east on Chicago are racing to make it through the traffic light at the intersection and attempting to determine if there is on-coming traffic from their right on north-bound Mound Road." Id. at 700. The Court determined that avoiding this potential danger was a valid governmental objective, "even where, as here, the safety hazard exists only in limited circumstances, as the potential for even one tragic accident at a busy intersection clearly constitutes a compelling interest which the State must address." Id.

The Court also determined that Plaintiff had failed to show a likelihood of success on his claim of violation of the Establishment Clause as the County's actions satisfied all three of the requisite elements of the test set forth by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971), as reformulated pursuant to McCreary County v. ACLU, 545 U.S. 844 (2005). Specifically, the Court found that Defendants' denial of Plaintiff's permit had a predominantly "secular purpose" to maintain traffic safety.1 The Court also found that a reasonable person

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would not find that the Road Commission's policy of not permitting the placement of temporary structures in the medians of major roadways conveys a message of endorsement or disapproval of religion, and therefore, the "effect" prong of the Lemon test was satisfied. Finally, the Court determined that the County's policy did not "foster an excessive government entanglement with religion." 687 F. Supp. 2d at 701-02.

In view of the Court's factual findings and its own visit to the site, after entering the December 28 Opinion and Order, the Court ordered the parties to show cause why its Opinion and Order denying Plaintiff's Motion for a Preliminary Injunction should not be converted to a final Judgment on the merits pursuant to Fed. R. Civ. P. 65(a)(2). Defendants agreed that the Order should be so converted, but Plaintiff objected and requested an opportunity to more fully develop a factual record through discovery to give him the opportunity to challenge the veracity of Defendants' assertion that the decision to deny the permit was based upon a determination that the Nativity posed a significant danger to public safety and to ascertain what specifically was discussed at the March 6, 2009 meeting of the Board of Commissioners with respect to Plaintiffs application for the permit. Plaintiff also stated that he wanted to proceed with discovery with regard to his Establishment Clause and Equal Protection claims which had not been addressed in his preliminary injunction filings. The Court granted Plaintiffs request and the case, accordingly, proceeded with discovery.

Discovery has now closed and the parties now cross-move for summary judgment.

Having reviewed and considered the parties' briefs and supporting evidence, and the

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entire record of this matter, the Court finds that the pertinent facts and legal contentions are sufficiently presented in these materials, and that oral argument would not assist in the resolution of this matter. Accordingly, pursuant to Eastern District of Michigan Local Rule 7.1(f)(2), the Court will decide Defendant's motion "on the briefs." This Opinion and Order sets forth the Court's ruling.



Plaintiff John Satawa is a resident of the City of Warren, Michigan. The Defendant Board of County Road Commissioners of Macomb County (the "Board" or the "Road Commission") is a corporate body formed in accordance with Michigan statutory law. See M.C.L. § 224.9. The Board consists of three commissioners and is charged with the responsibility for overseeing the Road Commission's budget and establishing and carrying out policies with regard to all matters pertaining to the County roads. Defendant Fran Gillett has been a Road Commissioner since 2000, and in 2009 was the Chairperson of the Board. Defendant Robert Hoepfner is the County Highway Engineer for Macomb County. Mr. Hoepfner is responsible for the supervision, maintenance, design, construction, permitting, right-of-way, and traffic engineering operations of the Road Commission. He has served in this capacity since 1995.


On December 10, 2008, the Board received via fax a letter from the Freedom from Religious Foundation, written on behalf of an unidentified "concerned Macomb County resident," who objected to a Nativity scene erected on the median of Mound Road, south of

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Chicago Road, in Warren, Michigan.2 Mound Road is a County road, and as such, is

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under the jurisdiction of the Macomb County Road Commission. [See 30(b)(6) Deposition of

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Robert Hoepfner, p. 13]3 Prior to receiving the December 10, 2008 letter, the Road Commission was unaware of the Nativity display. Id. p. 22; see also Deposition of Fran Gillett, p. 22.

As a result of the citizen complaint, Robert Hoepfner dispatched Joe Dana, a Road Commission permit inspector responsible for that area of Macomb County, to investigate. [Hoepfner Dep. pp. 19-20.] When Dana returned, he confirmed to Mr. Hoepfner the presence of the Nativity display on the median and reported that creche had a plaque on the back that had Mr. Satawa's phone number on it. Id. p. 19.

a. The Site of the Display

As indicated, the median in question is the center median of Mound Road just south of Chicago Road....

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