Satawa v. Macomb Cnty. Rd. Comm'n
| Decision Date | 01 August 2012 |
| Docket Number | No. 11–1612.,11–1612. |
| Citation | 689 F.3d 506 |
| Parties | John SATAWA, Plaintiff–Appellant, v. MACOMB COUNTY ROAD COMMISSION; Fran Gillett, individually and in her official capacity as Chairperson, Macomb County Road Commission; Robert Hoepfner, individually and in his official capacity as Chairperson, Macomb County Road Commission, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
OPINION TEXT STARTS HERE
ARGUED:Robert Joseph Muise, American Freedom Law Center, Ann Arbor, Michigan, for Appellant. Benjamin J. Aloia, Aloia & Associates, P.C., Mount Clemens, Michigan, for Appellees. ON BRIEF:Robert Joseph Muise, Thomas More Law Center, Ann Arbor, Michigan, for Appellant. Benjamin J. Aloia, Aloia & Associates, P.C., Mount Clemens, Michigan, for Appellees. Steven W. Fitschen, The National Legal Foundation, Virginia Beach, Virginia, for Amicus Curiae.
Before: BOGGS and COLE, Circuit
Judges; and OLIVER, District Judge.*
The Macomb County Road Commission faced a dilemma. The Freedom From Religion Foundation, an organization dedicated to “protect[ing] the fundamental constitutional principle of separation of church and state,” had written a letter objecting to a private citizen's placing a crèche on a sixty-foot-wide median at Christmas time, as the citizen and his family had done for more than sixty years. The county immediately ordered the crèche removed. In response, the Thomas More Law Center, an organization dedicated to “restor[ing] and defend[ing] America's Judeo–Christian heritage,” took up the citizen's cause and applied for a formal permit to display the crèche. After seeking legal advice, the county denied the permit because, it stated, the crèche “clearly displays a religious message, [and thus displaying it on the median] would be a violation of the Establishment Clause of the First Amendment.” The citizen filed suit, claiming that denial of the permit violated his free-speech rights, the Establishment Clause, and his equal-protection rights. During litigation, the county changed its explanation for denying the citizen's permit, claiming that safety, not the crèche's religious connotation, was—and had always been—the reason for its decision. Relying on this explanation, the district court granted summary judgment for the county. For the reasons outlined below, we affirm the district court's grant of summary judgment on Satawa's Establishment Clause claim, but reverse on all other grounds.
In 1945, Frank Krause and Joseph Satawa built a manger to house a set of statutes donated to St. Anne's Parish in Warren, Michigan. The statues depicted the birth of Jesus Christ. With the Village's permission, Krause and Satawa put the manger, with the statues inside, on a public median at the intersection of Mound Road and Chicago Road.1 They did so each year until their deaths in the late 1940s and 1965, respectively. Joseph Satawa's son and son-in-law, John Satawa 2 and Lawrence Green, continued this practice, assembling the crèche in the same place every year at Christmas time.3 They asked for, and received, permission from Warren officials to build the display in the late 1970s, 1994, and 1995. Satawa and Green have not sought permission since 1995, however, because a City of Warren police officer “inform[ed] [Satawa] that the [police] department was well aware of the nativity scene tradition and its presence on the median in Warren and that it was not necessary to send any letters in the future.”
The median that houses the crèche separates four lanes of northbound traffic from four lanes of southbound traffic on Mound Road.4 It is sixty feet wide, and landscaped with grass, trees, and flowers. The Board of County Road Commissioners of MacombCounty (“the Board”) has jurisdiction over the median because Mound Road is a Macomb County road.5 The site of the crèche itself is just south of Mound Road's intersection with Chicago Road, a two-lane, east-west street with a thirty-mile-per-hour speed limit. Traffic lights regulate the intersection from every direction.
The crèche is nine-and-one-half feet tall, eight feet wide, and eight feet deep.6 It has front and back windows, and is illuminated at night. On the crèche is a sign that reads: “A Blessed Christmas, St. Anne Parish,” and inside there is a plaque, with the words: “In Memory of Joseph and Rose Satawa.” The crèche sits immediately north of a stand of pine trees, which is twenty-nine feet, four inches wide and fifteen feet tall. Behind the pine trees are two park benches, and at least one commemorative plaque, discernable only from the median. Also on the same section of median as the crèche are several pieces of old farm equipment and wagons, installed by the “Friends of the Village,” a citizens' group dedicated to maintaining Warren's “village” character. Across Chicago Road to the north of the crèche is a gazebo and small courtyard, built by the Village of Warren Historical Commission, and a historical marker, again with text readable only from the median, put in place by the State of Michigan.
On December 10, 2008, the Board received, by fax, a letter from the Freedom From Religion Foundation. The letter, supposedly written on behalf of “a concerned Macomb County resident,” argued that the crèche violated the Establishment Clause because “[d]isplaying an inherently Christian message at a busy intersection on County-owned property unmistakably sends the message that Macomb County endorses the religious beliefs embodied in the display.” Accordingly, the Freedom From Religion Foundation “ask[ed] that [the Board] immediately ... remove the display to private property.”
In response, Macomb County Highway Engineer Robert Hoepfner dispatched Road Commission Permit Inspector Joe Dana. Dana reported back and told Hoepfner that, indeed, the crèche was where the Freedom From Religion Foundation said it was, and that Satawa's phone number was on a plaque attached to the display. Hoepfner called Satawa and explained that, because Satawa did not have a permit, Satawa would have to disassemble the crèche. A formal, written demand to remove the crèche within thirty days followed on December 11, 2008. Satawa complied after the end of the holiday season.
One month later, Satawa went to the Road Commission's office to apply for a permit to display the crèche the following year. Road Commission staff helped him fill out an application. On February 7, 2009, however, the Road Commission returned the application to Satawa, explaining that it was incomplete, and enclosing a new application. With help from the Thomas More Law Center, Satawa filled out the application, explaining in detail—and illustrating with photographs—the crèche's location. In his application, Satawa offered to pay all electrical costs associatedwith the display, to buy insurance, and “to post a sign at the display which states clearly that it is his private display and not the display of Macomb County, the City of Warren, or any other government entity.”
Hoepfner personally reviewed Satawa's application. He sought legal advice from an attorney for the county and brought the issue of Satawa's permit application to the Board's attention during the “new business” portion of a regularly scheduled meeting on March 9, 2009. There, he explained:
This was the only time that the Board formally discussed Satawa's permit application.
Although Hoepfner mentioned only the crèche's religious aspects when he brought Satawa's application to the Board's attention, he claimed in his deposition, thirteen months later, that the primary reason for denying Satawa a permit was that the crèche raised a safety concern. In particular, he claimed to be worried that a vehicle might strike the crèche. Hoepfner made clear:
Hoepfner also insisted in his deposition that he had separate discussions with each of the Road Commissioners about Satawa's application, outside of the Board's regularly scheduled meetings. ( ). These discussions, he claimed, lasted “many, many hours,” and focused on his belief that the crèche posed a traffic hazard. The district court apparently took this testimony at face value.
It is true that Board Chairwoman Fran Gillett testified that she understood that Hoepfner was concerned about safety. However, she also indicated that she “first became aware of [the crèche] ... when [the Board] had a complaint the Christmas before last [December 2008], and then at that point [she] didn't hear anything more until 2009 at [the March 6 Board] meeting.” (emphasis added). And yet, she claimed that she learned of Hoepfner's safety concerns through casual, passing discussions in the hallway. It is not likely that these discussions took place after the...
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