Twombly v. City of Fargo, No. A3-02-137.

Decision Date29 September 2005
Docket NumberNo. A3-02-137.
PartiesWesley TWOMBLY, et al., Plaintiffs, v. CITY OF FARGO, et al., Defendants.
CourtU.S. District Court — District of North Dakota

Margaret E. Moore Jackson, Clinical Education Program University of North Dakota School of Law, Laura L. Rovner, Legal Aid Association, Grand Forks, ND, for Plaintiffs.

Patricia A. Roscoe, Stacey Elizabeth Tjon, Solberg Stewart Miller Johnson Tjon Kennelly Ltd., Fargo, ND, for Defendants.

Memorandum Opinion Denying Plaintiffs' Motion for Summary Judgment and Granting Defendants' Motion for Summary Judgment

ERICKSON, District Judge.

Plaintiffs in the above titled matter have commenced this action seeking a declaration that a monument displaying the Ten Commandments, donated by a private organization, situated on public land owned by the Defendant City of Fargo, North Dakota, violates the Establishment Clause. Plaintiffs further seek an order of court directing that the monument be removed from the site where it has stood for over forty years.

The parties have submitted the case on stipulated facts and each party now seeks judgment in its favor on those facts. The Court is asked through competing cross motions for summary judgment to decide whether the monument displaying the Ten Commandments violates the Establishment Clause of the First Amendment to the United States Constitution.

Summary of Decision

The Court finds that the Ten Commandments monument in question conveys a permissible dual message which celebrates both religious and secular ideals. In light of the most recent precedent of the United States Supreme Court, and the subsequent decision of the United States Court of Appeals for the Eighth Circuit in ACLU Neb. Found. v. City of Plattsmouth, 419 F.3d 772 (8th Cir.2005), this Court holds that the monument does not violate the Establishment Clause.

Background

The following facts are undisputed. The subject of the current motion is a monument donated to the City of Fargo by the Fraternal Order of Eagles ("Eagles") on March 8, 1958 to commemorate the city's recently completed urban renewal project. (Statement of Undisputed Facts ¶ 1, 2) (hereafter "Stmt. of Facts"). The Eagles are a non-religious civic organization. (Stmt. of Facts ¶ 2). The urban renewal project was an attempt to revitalize the downtown area of Fargo by demolishing some structures and building others. (Stmt. of Facts ¶ 3). Some of the new buildings constructed under this program included the Fargo Civic Auditorium, the current City Hall building and the mall located between them.

The monument itself stands six feet tall and three feet wide, and is tablet shaped. (Stmt. of Facts ¶ 23). On the face of the monument it reads:

the Ten Commandments

I AM the LORD thy God.

Thou shalt have no other gods before me

Thou shalt not make to thyself any graven images

Thou shalt not take the Name of the Lord thy God in vain

Remember the Sabbath day to keep it holy

Honor thy father and thy mother, that thy days may be long upon the land which the Lord thy God giveth thee

Thou shall not kill

Thou shalt not commit adultery

Thou shalt not steal

Thou shalt not bear false witness against thy neighbor

Thou shalt not covet thy neighbor's house

Thou shalt not covet thy neighbor's wife, nor his manservant nor his maidservant, nor his cattle nor anything that is thy neighbors

In an engraved scroll design at the bottom of the monument, in all capital letters, is inscribed:

PRESENTED TO THE CITY OF FARGO

COMMEMORATING THE FIRST URBAN

RENEWAL PROJECT IN NORTH DAKOTA.

DEDICATED TO THE STATE'S FUTURE

DEVELOPMENT AND A BETTER WAY OF

LIFE FOR ALL ITS PEOPLE.

FARGO AERIE NO. 153

FRATERNAL ORDER OF EAGLES

1958

(Stmt. of Facts ¶ 23). The text of the monument is an amalgam of Jewish, Protestant, and Catholic versions of the Ten Commandments. (Stmt. of Facts ¶ 23). The Ten Commandments are derived from the Old Testament, Exodus 20:2-17, and Deuteronomy 5:6-21. (Stmt. of Facts ¶ 23). Above the text on the monument are two small tablets engraved with the Ten Commandments, written in Semitic script. (Stmt. of Facts ¶ 26). The monument also contains two Stars of David, which are traditionally recognized as symbolic of the Jewish faith. (Stmt. of Facts ¶ 25, 28). The Greek letters "Chi" and "Rho," read together as representing Jesus Christ, are also inscribed on the tablature. (Stmt. of Facts ¶ 25, 27). Other markings include an eagle grasping an American flag in its talons and an illuminated, "all-seeing eye," similar to the design found on one-dollar bills. (Stmt. of Facts ¶ 25).

The monument was presented to the City of Fargo by Judge E.J. Ruegemer, a St. Cloud, Minnesota District Judge and Chairman of the Eagles National Youth Commission, and the monument was accepted by the city by then-Mayor Herschel Lashkowitz. (Stmt. of Facts ¶ 4, 6). Other participants in the dedication service included two representatives of the Urban Renewal Agency from Chicago, two additional officers from the Fraternal Order of Eagles, four members of the clergy, members of the Fargo City Commission, and the director and members of the Fargo Urban Renewal Agency. (Stmt. of Facts ¶ 5). After accepting the monument from Judge Ruegemer, Mayor Lashkowitz stated that the tablature "shall this day forward occupy a place of honor ... and ultimately shall be placed on the premises of the new City Hall ... to be a constant reminder to one and all that Fargo shall go forward only as it respects and lives according to the principles of the Ten Commandments." (Stmt. of Facts ¶ 6).

Following the dedication of the monument, the city placed the display in storage. (Stmt. of Facts ¶ 7). The monument was later removed from storage and placed at its current location in 1961. (Stmt. of Facts ¶ 7). It was dedicated at its current location on June 4, 1961. (Stmt. of Facts ¶ 7). Present at this ceremony were Mayor Lashkowitz, Judge Ruegemer, two members of the clergy, and the former Grand Madam President of the Eagles Auxilliary. (Stmt. of Facts ¶ 8).

The monument currently stands in a grassy, open area mall. (Stmt. of Facts ¶ 9). In this location, the monument is bounded on its north by the Fargo Civic Auditorium, on the south by the Fargo Public Library, and on the east by Fargo City Hall. (Stmt. of Facts ¶ 10). Bordering the mall area on the west is 4th Street, a two-way thoroughfare. (Stmt. of Facts ¶ 10). The display is located approximately 94 feet due south from the entrance of the Fargo Civic Auditorium, approximately 182 feet southwest of the entrance to Fargo City Hall, approximately 170 feet northwest from the north entrance of the Fargo Public Library, and about 103 feet east of 4th Street. (Stmt. of Facts ¶ 11). The mall area is dissected by five walkways, constructed with city funds, that extend from the monument to the Fargo Public Library, Fargo City Hall, the Fargo Civic Auditorium, and to the 4th Street crosswalk. (Stmt. of Facts ¶ 20, 22).

Since its placement on the current site in 1961, the city has held exclusive custody and control of the monument. (Stmt. of Facts ¶ 12). The City of Fargo has never specifically earmarked any funds for the care or maintenance of the display. (Stmt. of Facts ¶ 13). The mall area on which the monument stands is maintained by the city. (Stmt. of Facts ¶ 16). If the monument itself required maintenance, a city employee would provide whatever services were necessary. (Stmt. of Facts ¶ 14). In September 2001, an employee of the city did, in fact, clean off what appeared to be oil, from the monument. (Stmt. of Facts ¶ 15).

The City of Fargo allowed the monument to be placed following a request by the local chapter of the Eagles. (Stmt. of Facts ¶ 29). The mall area does not contain any other monuments other than the one at issue and other permanent markers cannot be placed in the mall without the approval of the city. (Stmt. of Facts ¶ 17, 18). No other organization has requested the permission to install or place a monument in the mall area. (Stmt. of Facts ¶ 19). The City has chosen to retain the monument in the mall area because it believes that the monument has historical significance. (Stmt. of Facts ¶ 29).

The Plaintiffs Wesley Twombly, Jon Lindgren, Davis Cope, Lewis Lubka, and William Treumann were residents of Fargo, North Dakota for all times relevant to this litigation. (Stmt. of Facts ¶ 31). They are all members of the "Red River Freethinkers," an organization "composed of members whose view of the supernatural is atheistic and agnostic." (Stmt. of Facts ¶ 32). All of the Plaintiffs utilize the structures in the mall area for one purpose or another, such as dealing with parking tickets, attending concerts or talks, or visiting the library. (Stmt. of Facts ¶ 33, 43, 50, 57, 62). During these visits to the mall, the Plaintiffs have come into unwanted contact with the Ten Commandments monument. (Stmt. of Facts ¶ 33, 43, 50, 57, 62). As a result of this unwanted contact the Plaintiffs have experienced feelings of exclusion, (Stmt. of Facts ¶ 34, 36, 37, 39, 47, 51, 52, 68), discomfort (Stmt. of Facts ¶ 45, 60), and anger (Stmt. of Facts ¶ 56, 61, 65). Plaintiff Treumann mentioned his objection to the monument to Mayor Lashkowitz roughly forty years ago, with the Mayor responding that the location of the monument was not a "big deal." (Stmt. of Facts ¶ 61). The Plaintiffs, absent Plaintiff Lindgren, brought their concerns to the city in August of 2001 and have attended various city meetings since that time urging for the monument's removal. (Stmt. of Facts ¶ 69). There is no evidence of any grievances concerning the monument between Plaintiff Truemann's objection 40 years ago and Plaintiffs' complaints in 2001. This suit follows.

Analysis

It is, perhaps, no understatement to note at the outset of this discussion that the current state of Establishment Clause jurisprudence is both widely debated and criticized. The body of law as...

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