Summum v. Callaghan, 96-4191

Citation130 F.3d 906
Decision Date28 November 1997
Docket NumberNo. 96-4191,96-4191
Parties97 CJ C.A.R. 3046 SUMMUM, a Utah corporate sole, Plaintiff-Appellant, v. Mary CALLAGHAN; Salt Lake County, a municipal government entity; James Bradley, Salt Lake County Commissioner; Brent Overson, Salt Lake County Commissioner; Randy Horiuchi, Salt Lake County Commissioner, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Brian M. Barnard (Natasha Hawley and Andrea J. Garland, with him on the briefs), Utah Legal Clinic, Cooperating Attorneys for Utah Civil Rights & Liberties Foundation, Inc., Salt Lake City, UT, for Plaintiff/Appellant.

Patricia J. Marlowe, Deputy County Attorney (Douglas R. Short, Salt Lake County Attorney and Sirena M. Wissler, Deputy County Attorney, with her on the brief), Salt Lake City, UT, for Defendants/Appellees.

Before SEYMOUR, Chief Judge, McKAY, Senior Circuit Judge, and HENRY, Circuit Judge.

SEYMOUR, Chief Judge.

This appeal involves two consolidated actions brought under 42 U.S.C. § 1983 by Summum, a church, against Salt Lake County and its Commissioners ("the County") based on the County's denial of several requests made by Summum to erect a monolith displaying certain religious tenets of the Summum church near a Ten Commandments monolith located on the front lawn of the Salt Lake County Courthouse for the Third Judicial District. Summum alleges violations of the Establishment, Free Exercise, Free Speech, and Due Process Clauses of the United States Constitution and analogous provisions of the Utah Constitution. 1 The district court dismissed Summum's federal claims under Fed.R.Civ.P. 12(b)(6), and dismissed the pendent state law claims without prejudice. Summum appeals, and we reverse and remand for further proceedings.

I.

Standing on the front lawn of the Salt Lake County Courthouse on property owned and controlled by the County is a stone monolith inscribed with, among other things the Ten Commandments. This Ten Commandments monolith is approximately fifty-eight inches high and thirty-two inches wide, and is permanently installed in the grass next to the sidewalk leading to the main entrance of the courthouse. Thus, the monolith is in a prominent place and visible to all who enter the courthouse through the main entrance. The Order of Eagles, a private fraternal order, erected the Ten Commandments monolith in approximately 1971 with the approval of the County. The County specifically granted the Order of Eagles permission to install the monolith at a meeting of the County Commission. The Order of Eagles paid for both the creation and installation of the monolith. 2

Summum is a church formed in Utah in 1975, and its main offices are located in Salt Lake City. On August 17, 1994, Summum mailed a letter to the Salt Lake County Commission requesting that Summum be allowed to place a stone monolith with its own religious tenets on the front lawn of the County courthouse near the Ten Commandments monolith. The proposed monolith would be comparable in size, shape, and design, and Summum would pay for all costs of creation and installation. Having received no response from the Commission, Summum sent a second letter on August 29. A few days later, Summum received a letter from Commission Chair James Bradley denying Summum's request on the ground that "the county and other government entities are in the process of examining that property for development of a new jail or other facilities and it would not be prudent to engage in any construction or development, of any kind, on that site at this time." Aplt.App. at 28.

At the time the events underlying this appeal took place, Salt Lake County Commissioners Brent Overson, Randy Horiuchi, Mary Callaghan, and James Bradley, who are named defendants in this action, were vested with the administrative power to determine whether a private organization or individual could install a display on county property. 3 The County does not have any written or unwritten rules, regulations, policies or practices governing the placement of permanent displays on county property to guide the Commissioners in making these decisions. Nor has the County established an appeal process to challenge denials of such requests.

On September 16, 1994, Summum filed a complaint (Summum I ) alleging that Salt Lake County and its Commissioners violated the Establishment, Free Exercise, and Due Process Clauses of the federal and state constitutions by denying Summum's requests to place its monolith on the courthouse lawn while allowing the Ten Commandments monolith to stand. Summum sought monetary compensation and punitive damages, declaratory and injunctive relief as well as attorneys' fees and costs under 42 U.S.C. § 1983 and § 1988. 4 The County moved to dismiss Summum I pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim.

In an order dated January 5, 1995, the district court granted the County's motion to dismiss. Relying on our decision in Anderson v. Salt Lake City Corp., 475 F.2d 29 (10th Cir.1973), which held that the Ten Commandments monolith did not violate the Establishment Clause because it was primarily secular in nature, the district court dismissed Summum's Establishment Clause claims. The district court further reasoned that since the Ten Commandments monolith was secular, the County had not created a forum for religious expression by permitting the Order of Eagles to place their monolith on the courthouse lawn, and thus Summum had no right under the Free Exercise Clause to place its own monolith there. Moreover, since Summum had not been deprived of any protected interest, the court held that Summum's due process claims also failed. After dismissing all Summum's federal claims, the district court declined to exercise jurisdiction over the pendent state law claims and dismissed them without prejudice.

In the meantime, on December 19, 1994 and January 3, 1995, Summum made two new requests to the County for permission to erect a monolith displaying tenets of the Summum church on the courthouse lawn. In these requests, Summum specifically indicated that its purpose in installing the monolith was to exercise its constitutional right to free speech. Summum received no response from the County to either of these letters. 5

On or about January 12, 1995, Summum filed a motion to alter or amend judgment and a motion seeking leave to file an amended complaint, which was attached. The amended complaint added causes of action under the Free Speech Clause of the federal and state constitutions. It alleges that the County has created a public forum on the courthouse lawn and has violated Summum's state and federal free speech rights by (1) denying Summum's requests to install a monolith next to the Ten Commandments monolith; (2) leaving the decision as to who may place a permanent display on county property as well as the content of such displays to the unbridled discretion of the Commissioners named as defendants; and (3) seeking to censor Summum's ideas.

Summum supported these motions with supplemental authority provided by the Sixth Circuit's decision in Pinette v. Capitol Square Review & Advisory Bd., 30 F.3d 675 (6th Cir.1994), which was later affirmed by the Supreme Court, 515 U.S. 753, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995). 6 According to Summum, Capitol Square held that private religious speech was fully protected under the Free Speech and Free Exercise Clauses and that under these constitutional guarantees, "private speech may not be banned from a secular public forum because ... the speech is religious." Aplt.App. at 203. In light of Capitol Square, Summum argued that the district court erred in dismissing the free exercise claims in Summum I on the ground that a religious forum had not been created on the courthouse lawn because of the secular nature of the Ten Commandments monolith. Summum contended under Capitol Square that regardless of whether a public forum is characterized as religious or secular, when the government denies private religious speech equal access to any public forum it violates the Free Exercise Clause. Summum also asserted that Capitol Square supported its motion to amend the complaint by showing the strength of Summum's potential free speech claims. Summum requested that the district court reconsider its dismissal of Summum I and proceed with the amended complaint.

Subsequently in August 1995, Summum filed a new and separate complaint against the County (Summum II) asserting causes of action essentially identical to the amended complaint. The County moved to dismiss Summum II on the ground of res judicata.

The two actions were consolidated. In an order dated June 10, 1996, the district court ruled on Summum's motion to alter or amend the judgment in Summum I and the County's motion to dismiss Summum II. In addressing Summum's motion to alter or amend, the district court elaborated on and clarified its previous order dismissing Summum I. The court stated that Summum's reliance on Capitol Square was misplaced because the Supreme Court had "accepted as a predicate matter" that the government property in question was a public forum, while the issue in the instant case was whether a public forum had in fact been created. Aplt.App. at 230-31. The district court was persuaded the County had not created a public forum simply by allowing one private organization access to the courthouse lawn. Because Capitol Square did not shed light on whether a public forum had been created, and because in the district court's view the courthouse lawn fell "squarely" into the category of a nonpublic forum, id. at 231, the court denied Summum's motion to alter or amend the judgment in Summum I. The district court dismissed Summum II on the grounds of res judicata, having previously observed that Summum II is "in essence, the proposed amendment to the Summum I complaint." Id. at 229. The court also observed that Summum's free speech claim was a close...

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