seeking a stay pending appeal first in the district court is “[t]he cardinal principle of stay applications” and denying the stay motion where “[t]he defendant did not so move below and has not made any showing that such a motion would be impracticable” (first alteration in original) (quoting 16A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3954 (3d ed. 1999))
How later courts described this case
- seeking a stay pending appeal first in the district court is “[t]he cardinal principle of stay applications” and denying the stay motion where “[t]he defendant did not so move below and has not made any showing that such a motion would be impracticable” (first alteration in original) (quoting 16A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3954 (3d ed. 1999))
- noting that “[m]ere injuries, however substantial, in terms of money, time and energy necessarily expended” in compliance with an injunction “are not enough [to preclude issuance]”
- “The strength of the likelihood of success on the merits that needs to be demonstrated is inversely proportional to the amount of irreparable harm that will be suffered if a stay does not issue. However, in order to justify a stay of the district court’s ruling, the defendant must demonstrate at least serious questions going to the merits and irreparable harm that decidedly outweighs the harm that will be inflicted on others if a stay is granted. In assigning weight to each factor, a court will seek to balance the harm to the movant against the harm to other parties.”
- “[I]n order to justify a stay of the district court’s ruling, the [party] must demonstrate at least serious questions going to the merits and irreparable harm that decidedly outweighs the harm that will be inflicted on others if a stay is granted.”
Written by the judges who cited it.
The opinion
KENNEDY, Circuit Judge,
dissenting.
I would grant the stay pending appeal on the condition that the School Board cover the Ten Commandment displays at the four Adams County High Schools during the pendency of the appeal. I would also advance the briefing schedule so that the appeal could be more promptly heard.
The display in its present configuration, flanked by texts from other secular historical sources, can appear to (1) serve a secular purpose, (2) does not demonstrate an impermissible government purpose and (3) does not foster an excessive entanglement of government with religion. The majority acknowledges the school district has raised serious appellate issues.
I would only add, in holding the present display unconstitutional, the district court relied heavily on the prior display of the Commandments alone to determine the second and third requirements of the Lemon test Lemon v. Kurtzman, 403 U.S. 602 , 91 S.Ct. 2105 , 29 L.Ed.2d 745 (1971). Here, the school district sought to remedy the prior unconstitutional display of the lone Ten Commandments by including a display of historical documents. In cases involving the display of creches, courts have permitted government bodies to add non-religious holiday 'symbols to create constitutional displays, or at least have not enjoined such displays because of earlier displays of a creche alone.
I would agree that new monuments could be constructed if the stay is denied and it would not be irreparable if someone would be required to pay for it. In the ordinary case, the opposing party becomes liable for the damages suffered if the stay is denied and the party requesting it prevails. That is not the case here. “[T]he absence of a bond usually precludes an aggrieved party from recovering damages for the issuance of an injunction.”
Wright, Miller & Kane, Federal Practice and Procedure, Civil 2d § 2973. 1 Defendant has no legal remedy for costs of replacement. Where there is a monetary loss and no basis on which to recover that monetary loss, the injury is irreparable.
While defendants failed to include the offer to cover the Ten Commandments in their request to the district court for a stay, it seems like a practical and common sense solution and there is nothing to prevent our Court from accepting it. It will temporarily remove the harm of which de *932 fendants complain so they will not be injured during the appeal.
. While there were exceptions, they would not appear to be applicable here.