Appendix — Duchesne City, Utah v. Summum (No. 07-690)
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APPENDIX A
Nos. 05-4162, 05-4168, 05-4272 & 05-4282
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
SUMMOUM, a corporate sole and church,
Plaintiff-Appellant/Cross-Appellee,
Vv.
DUCHESNE CITY, a governmental entity;
CLINTON PARK, Mayor of Duchesne City;
YORDYS NELSON; NANCY WAGER; PAUL
TANNER; DARWIN MCKEE; JEANNIE
MECHAM, city council members,
Defendants-Appellees/Cross-Appellants.
Filed April 17, 2007
OPINION
TACHA, Chief Circuit Judge.
Summum, a religious organization, filed suit under
42 U.S.C. § 1983 against Duchesne City, its mayor,
and its city council members (collectively "City") for
alleged violations of Summum's First Amendment free
speech rights. Summum appeals the District Court's
entry of summary judgment in favor of the City with
respect to Summum's request for prospective
injunctive relief from alleged ongoing violations of its
free speech rights. The City cross-appeals the District
Court's entry of summary judgment in favor of
Summum with respect to Summum's request for
declaratory relief and nominal] damages for the City's
past violations of its free speech rights. In addition, the
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City cross-appeals the District Court's denial of its
motion for summary judgment based on lack of
standing, and both parties appeal the District Court's
order awarding Summum attorneys' fees. We exercise
jurisdiction pursuant to 28 U.S.C. § 1291 and affirm in
part, reverse in part, and remand.
1. BACKGROUND
This dispute arises from Summum's request to
erect a monument of the Seven Aphorisms of Summum
in a city park in Duchesne City, Utah. In September
2003, Summum sent a letter to the mayor of Duchesne
City asking the City to transfer a small (10' x 11') plot
of land in Roy Park to Summum for the display of its
monument. Summum requested a plot of land (rather
than simply seeking permission to erect its monument
on public property) because, in August, the mayor had
transferred a 10' x 11' plot of land in Roy Park
containing a Ten Commandments monument to the
Duchesne Lions Club. At the time of the transfer, the
Ten Commandments monument had been displayed in
Roy Park for nearly twenty-five years. In an attempt to
remove the monument from public property, the mayor
transferred the land to the Lions Club by quitclaim
deed. The contract for the transaction cites the club's
work in cleaning and beautifying the city as
consideration for the transfer. Summum, in its request
for a similar land transfer, asked that the City grant it
the same access to public property that the City had
granted the Lions Club. The City responded by letter,
notifying Summum that it would grant Summum a
similarly sized plot of land in Roy Park if the
organization contributed the same amount of service to
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the City as the Lions Club had contributed.
Construing the City's response as a denial of its
request for a plot of Jand in Roy Park, Summum filed
suit under 42 U.S.C. § 1983 in federal district court,
alleging violations of its free speech rights under the
First Amendment. It also alleged the City violated its
rights under the Utah Constitution's Free Expression
and Establishment Clauses. It sought declaratory and
injunctive relief, as well as monetary damages. Both
parties moved for summary judgment. At a hearing on
the motions, the District Court expressed reservations
about the City's land transfer to the Lions Club. In
particular, it questioned whether the sale was
supported by adequate consideration and was an
arm's-length transaction (the mayor of the City was
also president of the Lions Club). The court also noted
that the City had not erected any fences, signs, or
other indications of its disassociation from the plot of
land and monument. After the court encouraged the
parties to seek other solutions to the problem, the
Lions Club transferred the plot of land back to the City
by quitclaim deed, and the City sold the plot to the
daughters of Irvin Cole, in whose honor the monument
was originally donated. The Cole daughters paid $ 250
for the property, which they are free to use and dispose
of as they wish. In addition, a white-picket fence
approximately four feet high currently encircles the
property, and a sign states that the City does not own
the property. The City notified the District Court of the
changed circumstances.
Summum argued that the City's sale of the
property to the Cole daughters did not cure the
violation of Summum's free speech rights. But in
response to both parties' motions for summary
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judgment, the District Court entered an order in favor
of the City, finding that the second sale ended the
City's association with the Ten Commandments
monument. The court concluded that because the
monument was now private speech on _ private
property, Summum was not entitled to injunctive relief
facilitating the display of its monument in the park. In
a subsequent order, the District Court concluded that
prior to the sale of the plot to the Cole daughters, the
City was violating Summum's free speech rights; it
therefore granted Summum's motion for declaratory
relief and awarded it nominal damages of $ 20.
Summum now appeals the District Court's denial of its
request for injunctive relief. The City cross-appeals the
District Court's decision regarding declaratory relief
and damages, as well as the court's denial of the City's
motion for summary judgment based on lack of
standing. In addition, both parties appeal the District
Court's order awarding attorneys’ fees to Summum as
a prevailing party under 42 U.S.C. § 1988.
Ii. DISCUSSION
A. Standing
Before we reach the merits of Summum's First
Amendment claim, we first address the City's
contention that Summum lacks standing to bring this
claim. Our review of this legal question is de novo.
Lippoldt v. Cole, 468 F.3d 1204, 1216 (10th Cir. 2006).
To ensure that an Article II] case or controversy
exists, a party asserting federal jurisdiction must
establish three elements to have standing to bring a
claim. Doctor John's, Inc. v. City of Roy, 465 F.3d 1150,
Sa
1155 (10th Cir. 2006); Utah Animal Rights Coal. v.
Salt Lake City Corp., 371 F.3d 1248, 1255 (10th Cir.
2004). First, the party must establish an injury-in-fact
by showing "an invasion of a legally protected interest
that is (a) concrete and particularized and (b) actual or
imminent, i.e., not conjectural or hypothetical." Utah
Animal Rights Coal., 371 F.3d at 1255 (quotations
omitted). Second, the party must demonstrate
causation by "showing that the injury is fairly
trace[able] to the challenged action of the defendant,
rather than some third party not before the court." Jd.
(alteration in original) (quotations omitted). And third,
the party must establish redressability by showing
"that it is likely that a favorable court decision will
redress the injury to the plaintiff." /d. (quotations
omitted).
Summum claims that its First Amendment rights
were violated when the City denied its request to erect
a permanent monument in the park while allowing
others to do so. The City maintains, however, that it
removed the Ten Commandments monument from the
park by selling the underlying property and that,
consequently, a forum for permanent displays no
longer exists in the park. Thus, the City argues,
Summum has failed to establish an injury-in-fact. But
the efficacy of the City's closure of the park as a forum
for permanent displays is a matter of debate. And as
we have cautioned, "we must not confuse standing
with the merits." /d. at 1256; see also Initiative and
Referendum Inst. v. Walker, 450 F.3d 1082, 1088 (10th
Cir. 2006) (en banc) ("For purposes of the standing
inquiry, the question is not whether the alleged injury
rises to the level of a constitutional violation. That is
the issue on the merits."). If Summum is correct that
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the Ten Commandments monument is part of a public
forum to which it was denied access, it may have
suffered a deprivation of its free speech rights, which
would clearly be an injury-in-fact caused by the City's
actions and redressable by a favorable court decision.
We therefore conclude that Summum has standing to
bring its First Amendment claim.
B. First Amendment Claim
We review a district court's grant of summary
judgment de novo, applying the same standard the
district court applied. First Unitarian Church of Salt
Lake City v. Salt Lake City Corp., 308 F.3d 1114, 1120
(10th Cir. 2002); see also Jacklovich v. Simmons, 392
F.3d 420, 425 (10th Cir. 2004) ("On cross-motions for
summary judgment, our review of the summary
judgment record is de novo and we must view the
inferences to be drawn from affidavits, attached
exhibits and depositions in the light most favorable to
the party that did not prevail ... ."). Summary
judgment is proper only if the record shows "that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law." Fed. R. Civ. P. 56(c). In addition, because the
case before us involves First Amendment interests, "we
have an obligation to conduct an independent review of
the record and to examine constitutional facts and
conclusions of law de novo." First Unitarian Church,
308 F.3d at 1120.
1. Principles of Forum Analysis
According to Summum, because the City has
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permitted a private party to erect a monument in a
public forum, but denied Summum's request to do the
same, it has violated Summum's free speech rights. In
other words, Summum claims that the City has denied
it access to a public forum on the same terms it has
granted to others. Hence, Summum's claim depends on
whether the Ten Commandments monument continues
to be part of the forum to which Summum seeks access
(i.e., permanent displays in Roy Park), even though the
City claims to have transferred the small plot of land
containing the monument -- first to the Lions Club and
then to the Cole daughters.
Before turning to the question of whether the Ten
Commandments monument remains part of the park,
we note that the park, in general, is a traditional
public forum, and it is this physical setting that
defines the character of the forum to which Summum
seeks access. Streets and parks are "quintessential
public forums," as they "have immemorially been held
in trust for the use of the public, and, time out of mind,
have been used for purposes of assembly,
communicating thoughts between citizens, and
discussing public questions." Perry Educ. Ass'n uv.
Perry Local Educs. Ass'n, 460 U.S. 37, 45 (1983)
(quoting Hague v. CIO, 307 U.S. 496, 515 (1939)).’ The
‘The City argues that the relevant forum is nonpublic in
nature according to our decisions in Summum v. City of Ogden,
297 F.3d 995 (10th Cir. 2002), and Summum v. Callaghan, 130
F.3d 906 (10th Cir. 1997). But in both City of Ogden and
Callaghan, the property at issue could not be characterized -- by
tradition or government designation -- as a public forum. City of
Ogden, 297 F.3d at 1002 (holding that permanent monuments on
the grounds of a municipal building were a nonpublic forum);
Callaghan, 130 F.3d at 916-17 (holding that monuments on a
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characterization of the forum at issue is crucial
because "the extent to which the Government can
control access depends on the nature of the relevant
forum." Cornelius v. NAACP Legal Defense and Educ.
Fund, Inc., 473 U.S. 788, 800 (1985). In public forums,
content-based exclusions (e.g., excluding Summum's
Seven Aphorisms while allowing the Ten
Commandments) are subject to strict scrutiny and will
survive "only when the exclusion is necessary to serve
a compelling state interest and the exclusion is
narrowly drawn to achieve that interest." Id.
Alternatively, the government "may impose
reasonable, content-neutral time, place, and manner
restrictions" on speech in public forums (e.g., excluding
all permanent displays). Capitol Square Review and
Advisory Bd. v. Pinette, 515 U.S. 753, 761 (1995).”
courthouse lawn were a nonpublic forum). Conversely, in the
present case, the property is a park, the kind of property which
has "immemorially been held in trust for the use of the public."
Hague, 307 U.S. at 515. The fact that Summum seeks access to a
particular means of communication (i.e., the display of a
monument) is relevant in defining the forum, but it does not
determine the nature of that forum. See Cornelius v. NAACP Legal
Def. and Educ. Fund, Inc., 473 U.S. 788, 802 (1985) ("Having
identified the forum ... we must decide whether it is nonpublic or
public in nature.”); see also Summum v. Pleasant Grove City, 483
F.3d 1044 (10% Cir. 2007) (holding that "permanent monuments
in the city park" are a public forum).
“We note that the Supreme Court has chosen not to apply
forum principles in certain contexts, recognizing that the
government in particular roles has discretion to make
content-based judgments in selecting what private speech to make
available to the public. See United States v. Am. Library Ass'n,
Inc., 539 U.S. 194, 205 (2003) (plurality opinion) (recognizing that
public library staffs have broad discretion to consider content in
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The difficult question in this case is whether the
small plot of land with the Ten Commandments
monument remains part of a public forum (.e., the city
park) despite the City's efforts to sell it to a private
party. As a general matter, "[a] government may, by
changing the physical nature of its property, alter it to
such an extent that it no longer retains its public
forum status." Hawkins v. City and County of Denver,
170 F.3d 1281, 1287 (10th Cir. 1999) (finding that the
city had sufficiently altered former public street so
that it was no longer a traditional public forum).
Hence, a city's sale of public property may cause it to
lose its public forum status. See Utah Gospel Mission
u. Salt Lake City Corp., 425 F.3d 1249, 1255 (10th Cir.
2005) (rejecting the argument that "a public forum
may never be sold to a private entity, or that if it is
sold, it remains a public forum"); see also International
Soc'y for Krishna Consciousness vu. Lee, 505 U.S. 672,
699 (1992) (Kennedy, J., concurring) ("In some sense
the government always retains authority to close a
public forum, by selling the property, changing its
physical character, or changing its principal use."). But
making collection decisions); Ark. Educ. Television Comm'n v.
Forbes, 523 U.S. 666 (1998) ("Public and private broadcasters
alike are not only permitted, but indeed required, to exercise
substantial editorial discretion in the selection and presentation
of their programming."); Nat'l Endowment for the Arts v. Finley,
524 U.S. 569, 585 (1998) (holding that the NEA may make
content-based judgments in awarding grants as such judgments
"are a consequence of the nature of arts funding"). The city in the
case before us is not, however, acting in its capacity as librarian,
television broadcaster, or arts patron. Because the Supreme Court
has not extended the reasoning of these cases to the context we
consider today, we conclude that the case is best resolved through
the application of established forum principles.
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a sale of property is not conclusive. Indeed, a First
Amendment forum analysis may apply even when the
government does not own the property at issue: "forum
analysis does not require the existence of government
property at all." First Unitarian Church, 308 F.3d at
1122; see also Marsh v. State of Alabama, 326 U.S.
501, 509 (1946) (holding that the First Amendment
was violated when a corporate-owned municipality
restricted individual's speech); United Church of Christ
v. Gateway Econ. Dev. Corp. of Greater Cleveland, Inc.,
383 F.3d 449, 452-53 (6th Cir. 2004) (holding that
privately owned sidewalk surrounding privately owned
park was a public forum). Thus, even assuming the
property with the Ten Commandments monument is
privately owned, it may nevertheless continue to be
part of the public forum and therefore subject to the
strictures of the First Amendment. See First Unitarian
Church, 308 F.3d at 1131 (holding that the city's
easement over private property was a public forum).
In determining whether private property retains
its status as part of a public forum, the inquiry centers
on the objective, physical characteristics of the
property. Utah Gospel Mission, 425 F.3d at 1256; First
Unitarian Church, 308 F.3d at 1124; see also United
Church of Christ, 383 F.3d at 452 (holding that
privately owned sidewalk was public forum because it
resembled public sidewalk and "blend[ed] into the
urban grid"); Venetian Casino Resort, L.L.C. v. Local
Joint Executive Bd. of Las Vegas, 257 F.3d 937, 948
(9th Cir. 2001) (holding that privately owned sidewalk
was a traditional public forum because it was
"seamlessly connected to public sidewalks at either end
and intended for general public use"). That is, a city's
intentions and efforts to remove the plot of land by
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transferring it to private owners do not dictate the
property's status. Ark. Educ. Television Comm'n v.
Forbes, 523 U.S. 666, 678 (1998); see also First
Unitarian Church, 308 F.3d at 1124 ("The government
cannot simply declare the First Amendment status of
property regardless of its nature or its public use."). In
addition to examining the objective, physical
characteristics of private property, we have also asked
whether the city is "inextricably intertwined with the
ongoing operations" of the private owner or property
and whether the property continues to serve the same
primary function as it did before the transfer. Utah
Gospel Mission, 425 F.3d at 1256-58; see also First
Unitarian Church, 308 F.3d at 1128 (finding the fact
that easement served same purpose as public sidewalk
"a persuasive indication that the easement is a
traditional public forum").
The District Court did not conduct a forum
analysis to determine whether the plot of land with the
Ten Commandments monument remained part of the
public forum (1.e., the park) despite its sale to a private
party. Instead, the court analogized the present case to
the facts in Freedom from Religion Found., Inc. v. City
of Marshfield, 203 F.3d 487 (7th Cir. 2000), which
involved an Establishment Clause challenge to a
statue of Christ in a city park. In an effort to distance
itself from religious speech, the city sold the plot of
land containing the statue to a private entity. The
Seventh Circuit held that the city failed to take
sufficient measures to end its endorsement of religion:
the "physical state of the park" was such that "a
reasonable person [could] conclude that the
government, rather than a private entity, endorses
religion." Jd. at 495 (emphasis added).
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But a determination of whether the government is
endorsing religion is not the same as a determination
of whether speech is occurring in a public forum. The
Seventh Circuit recognized this distinction in
Marshfield when it acknowledged that, in remedying
its Establishment Clause violation, the city should be
mindful of the property's inclusion in a public forum:
“because our holding limits private speech in a public
forum, any remedy must be narrowly tailored to avoid
an Establishment Clause violation." Jd. at 497. In
other words, the court recognized that a remedy ending
the city's endorsement of religion would not necessarily
remove the statue from the public forum, and as part
of a public forum, the statue was protected speech
under the Free Speech Clause of the First Amendment.
To be sure, measures a city takes to differentiate
private property from a public forum might affect both
the private property's status as a public forum, as well
as any perceived endorsement of religion, see id., but
the inquiry is not identical. A surrounding fence and
disclaimer may be sufficient to disassociate the City
from private speech for purposes of the Establishment
Clause, but these measures do not necessarily remove
a small parcel of property from a public forum. The
District Court therefore erred in relying on Marshfield
to support its conclusion that the sign and fence
surrounding the plot of land "removed" the plot from
the public forum.
In addition to its reliance on Marshfield, the
District Court's analysis is flawed in another respect.
The first step in determining whether private property
is nevertheless part of a public forum should be to
resolve conclusively whether the property at issue 1s in
fact privately owned. Because the District Court
l3a
analyzed the property's status under the
Establishment Clause, rather than the Free Speech
Clause, it did not focus on the City's transfer of the
property to the Lions Club and, later, to the Cole
daughters. Instead, the District Court assumed that
both sales were valid. For Establishment Clause
purposes, the property's status as private or public
may not significantly affect the relevant inquiry into
whether a reasonable person could conclude that the
government is endorsing religion. In the context of free
speech, however, whether the property is private or
public significantly affects the analysis of the
property's forum status. If the land transfers in this
case are invalid, the Ten Commandments monument
is located on public property in a city park and is
therefore clearly located within a public forum.
Alternatively, if the City's transfers are valid, the
reviewing court must determine whether the plot of
land with the monument continues to be part of a
public forum despite its private ownership (and the
City's efforts to disassociate itself from the monument).
To apply the latter analysis without first determining
the validity of the land transfers could run afoul of the
fundamental principle that courts should not
"formulate a rule of constitutional law broader than is
required by the precise facts to which it is to be
applied." McConnell v. Federal Election Comm'n, 540
U.S. 93, 192 (2003) (quotations omitted); see also
United States v. Cusumano, 83 F.3d 1247, 1250-51
(10th Cir. 1996) (noting that the federal courts will not
resolve a _ constitutional question until it is
unavoidable).
The District Court should therefore have analyzed
the transfers for compliance with state law, rather
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than assuming that both sales were valid. We
therefore conduct an independent review of the record
to determine whether each transfer is valid under
state law. We conclude that the transfer to the Lions
Club was invalid, but find the record insufficiently
developed to determine whether the sale to the Cole
daughters is valid and therefore remand to the District
Court so that it may conduct an analysis consistent
with this opinion.
2. State Law Governing the City's Transfer of Public
Property
Under state law, a city's legislative body has the
power to dispose of public property "for the benefit of
the municipality." Utah Code Ann. § 10-8-2(1)(a)(ii).
The Utah Supreme Court has interpreted this
statutory provision to require that municipalities sell
or otherwise dispose of public property "in good faith
and for an adequate consideration." Sears v. Ogden
City, 533 P.2d 118, 119 (Utah 1975) (holding that a city
may not dispose of its property by gift), aff'd on
rehearing, 537 P.2d 1029. The court has also held that
"adequate consideration" requires the receipt of a
"present benefit that reflects the fair market value" of
the property. Mun. Bldg. Auth. of Iron County v.
Lowder, 711 P.2d 273, 282 (Utah 1985); see also Salt
Lake County Comm'n v. Salt Lake County Attorney,
985 P.2d 899, 910 (Utah 1999) (holding that adequate
consideration requires a specific benefit stated in
"present market value terms"). Hence, a "future"
benefit will not supply adequate consideration for a
city's transfer of property, "nor will a benefit that is of
uncertain value." Price Dev. Co., L.P. v. Orem City, 995
lSa
P.2d 1237, 1247 (Utah 2000). Furthermore, Utah case
law suggests that a city's disposal of park property is
subject to additional limitations: "[P]roperty such as
streets, alleys, parks, public buildings, and the hke,
although the title is in the city .. . is held in trust for
strictly corporate purposes, and, as a general rule,
cannot be sold or disposed of so long as it is being used
for the purposes for which it was acquired." McDonald
v. Price, 45 Utah 464, 146 P. 550, 551 (Utah 1915).
In addition to these substantive requirements, the
Utah Supreme Court has held that a city's transfer of
public property must be supported by documentation
demonstrating the fairness of the transfer:
[W]hen a legislative body enters into a transaction
where public money or property is given in
exchange for something, the good faith legislative
judgment that the net exchange is for fair market
value flowing to the entity needs to be supported
by documentation within the legislative record of
an independent determination of the value of the
exchange.
Price Dev. Co., 995 P.2d at 1249. Such documentation
attaches a presumption of validity to the transaction,
the strength of which is "in direct proportion to the
thoroughness of the evaluation of the transaction
entered into and to the independence and skill of the
evaluators." Id.
a. Transfer of the Plot to the Lions Club
The transfer from Duchesne City to the Lions Club
by quitclaim deed in August 2003 was clearly invalid
under state law. As an initial matter, no presumption
of validity attaches to the transaction because no
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documentation exists demonstrating the transaction's
fairness. The City contends, however, that the properly
executed and recorded quitclaim deed creates a
presumption of validity. The City is correct that, under
Utah law, recorded documents governing title to real
property do create certain presumptions, Utah Code
Ann. §§ 57-1-13; 57-4a-4, including the presumption
that "any necessary consideration was given," id. § 57-
4a-4(1)(e). But this more general statute must be
interpreted in conjunction with the specific statutes
and case law governing transfers of real property by
municipalities. And, as noted above, a municipality's
transfer of public property enjoys a presumption of
validity only when supported by underlying
documentation of the "independent determination of
the value of the exchange." Price Dev. Co., 995 P.2d at
1249.
Moreover, the presumption of a valid transaction
may be rebutted by clear and convincing evidence of
the transfer's invalidity. Gold Oil Land Dev. Corp. v.
Davis, 611 P.2d 711, 712 (Utah 1980). In this case, the
record contains clear and convincing evidence that the
City's transfer to the Lions Club was invalid. The deed
purported to transfer the parcel of property from the
City to the Lions Club in return for $10 and "other
considerations." The contract for sale of the property
states that the transfer is "in exchange for
consideration of work for the cleaning and
beautification of Duchesne City." Neither document
supports a conclusion that the consideration is a
specific, present benefit reflecting fair market value. In
addition, the same person represented entities on both
sides of the transaction; Clinton Park signed the
contract on behalf of the City, in his capacity as mayor,
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and on behalf of the Lions Club, in his capacity as
president of the local chapter. This fact raises
considerable doubt that the transfer was made in "good
faith." See, e.g., Utah Code Ann. § 70A-1-201(19)
("Good faith' means honesty in fact in the conduct or
transaction concerned."). Because the sale to the Lions
Club was not made "in good faith and for an adequate
consideration," Sears, 533 P.2d at 119, it is invalid
under state law.
Because the sale to the Lions Club was invalid, the
plot of land with the Ten Commandments monument
remained part of a public forum. The next question is
whether the City's reasons for prohibiting Summum's
speech satisfy the appropriate First Amendment
standard. The City concedes it excluded Summum's
speech based on its subject matter and the speaker's
identity. In addition to exclusions based on viewpoint
or subject matter, exclusions based on the speaker's
identity trigger strict scrutiny when the forum at issue
is public. See Cornelius, 473 U.S. at 808 (noting that
exclusion of speech from a public forum requires "a
finding of strict incompatibility between the nature of
the speech or the identity of the speaker" and the
forum's function); see also Police Dep't of Chicago v.
Mosley, 408 U.S. 92, 96 (1972) ("[W]e have frequently
condemned... discrimination among different users of
the same medium for expression."). To survive strict
scrutiny, the City must demonstrate that "the
exclusion is necessary to serve a compelling state
interest and the exclusion is narrowly drawn to
achieve that interest." Cornelius, 473 U.S. at 800.
The City does not assert any compelling interest
18a
for this restriction. Rather, the City asserts that no
constitutional right exists to erect a permanent
structure on public property. We do not need to
address that proposition in its most general
application, however, because in any event it does not
apply when the government allows some groups to
erect permanent displays, but denies other groups the
same privilege. Indeed, the cases cited by the City
acknowledge this distinction. See, e.g., Lubavitch
Chabad House, Inc. v. City of Chicago, 917 F.2d 341,
347 (7th Cir. 1990) ("First Amendment jurisprudence
certainly does mandate that if the government opens
a public forum to allow some groups to erect
communicative structures, it cannot deny equal access
to others because of religious considerations .. . ."); see
also Summum uv. Pleasant Grove City, _ F.3d __ (10th
Cir. 2007) (holding that a content-based exclusion of a
permanent display in a public park violated the First
Amendment). Indeed, we have held that similar
‘In its letter denying Summum's request, the City indicated
it would grant Summum the same access as the Lions Club once
Summum contributed the same number of service hours to the
City. While we doubt the sincerity of the City's stated reason (and
therefore its motive) in excluding Summum's speech, the City's
denial] based on lack of community service confers too much
discretion on city officials to exclude speech from a public forum.
City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 770-72
(1988). The City provided no specific guidelines for determining
when a speaker has engaged in the quantity and quality of
community service sufficient to gain access to the park. This kind
of "unbridled discretion" is clearly unconstitutional. /d. at 770
("The doctrine [forbidding unbridled discretion] requires that the
limits the city claims are implicit in its law be made explicit by
textual incorporation, binding judicial or administrative
construction, or well-established practice.")
19a
restrictions on speech may violate the First
Amendment even under the less exacting standard of
review applicd to speech restrictions in nonpublic
forums.‘ Summum v. City of Ogden, 297 F.3d 995,
1011 (10th Cir. 2002); Summum uv. Callaghan, 130
F.3d 906, 921 (10th Cir. 1997). Viewing the relevant,
undisputed facts in the light most favorable to the
City, we therefore conclude that Summum's free
speech rights were violated prior to the property's
transfer to the Cole daughters and affirm the District
Court's grant of summary judgment in favor of
Summum on this issue.°
‘Moreover, because the Ten Commandments monument
remained part of a public forum, we need not address the City's
argument that the display of Summum's monument (and noother)
would have caused the City to violate the Establishment Clause.
But we note that, when a forum for private speech exists, we have
rejected the Establishment Clause defense. Callaghan, 130 F.3d
at 921; see also City of Ogden, 297 F.3d at 1011 (recommending
that the city post a disclaimer if it is concerned that reasonable
observers would interpret monument as a_ governmental
endorsement of religion).
°*The City argues that the District Court should not have
granted Summum's request for declaratory relief because it had
already granted the City's motion for summary judgment on
Summum's entire First Amendment claim. But in its order, the
court found that the City's sale to the Cole daughters cured any
First Amendment violation and denied Summum's request for
prospective relief in the form of an injunction. The court
specifically noted that the order did not settle Summum's claims
for money damages and attorneys’ fees. This first judgment did
not therefore preclude the court's subsequent entry of declaratory
judgment and damages in favor of Summum for the period prior
to the City's second attempt to transfer the property.
Furthermore, although declaratory relief is typically prospective,
“we consider declaratory relief retrospective to the extent that it
20a
b. Transfer of the Plot to the Cole Daughters
Summum's request for prospective injunctive relief
depends, in part, on the validity of the City's transfer
of the property to the Cole daughters. After Clinton
Park, in his capacity as president of the Lions Club,
transferred the property back to the City, the city
council passed ordinances governing the disposition of
real property owned by the City and vacating the 10' x
11' parcel of property with the Ten Commandments
monument. The council also passed a _ resolution
authorizing the mayor to transfer the property to the
Cole daughters. In July 2004, Clinton Park, as mayor,
signed a quitclaim deed transferring the property to
the Cole daughters for $250 "and other considerations."
The value of the exchange is apparently based on
a Duchesne County tax appraisal, which lists the
[yuchesne Lions Club as the owner. This alone is not
enough to determine whether the sale was in good
faith and for adequate consideration under state law.
The record lacks any supporting documentation "of an
independent determination of the value of the
exchange," Price Dev. Co., 995 P.2d at 1249, or "a
detailed showing of the benefits to be obtained" from
the transfer, Salt Lake County Comm'n, 985 P.2d at
910. The county tax appraisal does not contain this
detailed showing, as it is not intended to evaluate the
City's transfer of the property to a private owner.
Moreover, the record contains no discussion of whether
is intertwined with aclaim for monetary damages that requires us
to declare whether a past constitutional violation occurred," PeTA
v. Rasmussen, 298 F.3d 1198, 1202 n.2 (10th Cir. 2002), even
though it is “superfluous [in this case] in light of the damages
claim," Green v. Branson, 108 F.3d 1296, 1300 (10th Cir. 1997).
2la
the City could dispose of park property when the
property's purpose had not changed. See McDonald,
146 P. at 551 (noting general rule that property "held
in trust for strictly corporate purposes" may not "be
sold or disposed of so long as it is being used for the
purposes for which it was acquired").
The District Court simply assumed the sale was
valid based on the City's assertions and did not
conduct an analysis of the transfer under state law.
But based on our review of the record, a genuine issue
of material fact exists concerning the validity of the
City's transfer. We therefore reverse the District
Court's grant of summary judgment in favor of the City
on Summum's claim for injunctive relief. Because a
determination of the sale's validity is important to a
determination of the property's forum status, the
District Court must first decide whether the sale meets
the requirements of state law. Once this issue is
decided, the court may then decide the constitutional
issue of the property's forum status, applying an
analysis consistent with this opinion. In addition, even
if the District Court determines on remand that the
land upon which the Ten Commandments monument
rests is no longer part of the traditional public forum
of Roy Park, Summum may still be entitled to
prospective injunctive relief entitling it to place its
monument on other locations that remain in the
traditional public forum of Roy Park, unless the court
determines that the City's ordinance purporting to
close all of Roy Park to permanent displays is a valid
time, place, or manner restriction under the analysis
articulated in Ward v. Rock Against Racism, 491 U.S.
781, 798-800 (1989).
C. State Law Claims
Summum also claims that the District Court erred
in dismissing its state law claims. In resolving the
parties’ motions for summary judgment the District
Court did not explicitly address Summum's state law
claims. Accordingly, we assume that it declined to
exercise supplemental jurisdiction over those claims
under 28 U.S.C. § 1367(c). See Erikson v. Pawnee
County Bd. of County Comm'rs, 263 F.3d 1151, 1155
n.6 (10th Cir. 2001) (assuming district court declined
supplemental jurisdiction when it did not address state
law claims in its order of dismissal). We review a
district court's decision regarding supplemental
jurisdiction for abuse of discretion. Robey v. Shapiro,
Marianos & Cejda, L.L.C., 434 F.3d 1208, 1213 (10th
Cir. 2006). In general, when federal claims are
disposed of prior to trial, the district court may decline
to exercise supplemental jurisdiction over state law
claims and allow the plaintiff to assert those claims in
state court.® Ball v. Renner, 54 F.3d 664, 669 (10th Cir.
1995); see also 28 U.S.C. § 1367(c)(3) ("[A] district
court[] may decline to exercise supplemental
jurisdiction" over state law claims if it "has dismissed
all claims over which it has original jurisdiction."). But
*In fact, in Snyder v. Murray City Corp., we reversed a
district court's decision to exercise supplemental jurisdiction over
claims involving Utah's Free Exercise and Establishment Clauses
when the court had resolved the federal claims prior to trial.
Snyder v. Murray City Corp., 124 F.3d 1349, 1354-55 (10th Cir.
1997) (noting that the complex nature of the law interpreting
Utah's religion clauses supported dismissa! of state claims),
vacated in part on rehearing en banc, 159 F.3d 1227 (10th Cir.
1998).
23a
because we remand Summum's federal claim for
prospective injunctive relief, the District Court should
reconsider whether to exercise supplemental
jurisdiction over Summum's state law claims. See Baca
v. Sklar, 398 F.3d 1210, 1222 n.4 (10th Cir. 2005)
(directing the district court to reconsider its decision to
decline supplemental jurisdiction after remanding a
federal claim).
D. Attorneys' Fees
Both parties appeal the District Court's order
awarding Summum one percent ($694.40) of the
amount requested in attorneys' fees. Summum argues
that it is entitled to a larger fee award, while the City
argues that the court should not have awarded
Summum any attorneys' fees. Because we reverse the
District Court's grant of summary judgment in favor of
the City with respect to injunctive relief, we vacate its
order awarding attorneys’ fees. The District Court may
recalculate attorneys' fees after it determines whether
Summum is entitled to injunctive relief in light of the
foregoing discussion.
We caution, however, that to reach the conclusion
that a plaintiff's victory is merely technical or de
minimis -- justifying only a low fee award or no award
at all -- the court must first apply the factors from
Justice O'Connor's concurrence in Farrar v. Hobby, 506
U.S. 103, 116-22 (1992).’ In this case, the District
‘These three factors are: "(1) the difference between the
amount recovered and the damages sought, (2) the significance of
the legal issue on which the plaintiff claims to have prevailed; and
(3) the accomplishment of some public goal other than occupying
the time and energy of counsel, court, and client." Lippoldt, 468
24a
Court characterized the City's violation of Summum's
rights as "technical" before it applied the O'Connor
factors because it had only awarded Summum nominal
damages. But "[n]ominal] relief does not necessarily a
nominal victory make." Farrar, 506 U.S. at 121.
Accordingly, on remand, the court should apply the
three O'Connor factors before deciding that the victory
is technical and that the only reasonable fee is
therefore a low fee or no fee at all. Barber v. T.D.
Williamson, Inc., 254 F.3d 1223, 1230 n.3 (10th Cir.
2001); see also Lippoldt, 468 F.3d at 1223-24 (holding
that the district court abused its discretion in finding
that plaintiffs achieved only technical success without
considering all the Farrar factors).
il. CONCLUSION
We AFFIRM the District Court's grant of summary
judgment in favor of Summum with respect to
declaratory relief and nominal damages, but we
REVERSE its grant of summary judgment in favor of
Duchesne City with respect to Summum's request for
injunctive relief. In addition, we VACATE the District
Court's order awarding Summum attorneys’ fees and
REMAND for further proceedings consistent with this
opinion.
F.3d at 1222 (quotations omitted).
Ib
APPENDIX B
Case No. 2:03CV1049
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF UTAH, CENTRAL DIVISION
SUMMUM., a corporate sole and church
" Plaintiff
DUCHESNE CITY, et al.
Defendants
Filed May 23, 2005
SECOND AMENDED OPINION AND ORDER
BACKGROUND
In 1979, the Cole family of Duchesne County, Utah
donated a Ten Commandments stone monolith to
Duchesne City.' The donation was made in the name
and memory of Irvin Cole, a long time resident of the
community. The City placed the monolith on a 10'x 11'
plot of land in Roy Park (a city park located in the
center of the City) where it remained undisturbed for
approximately twenty-five years. The Ten
Commandments monolith has now become the object
of this dispute.
On August 15, 2003, Mayor Clinton Park
‘Duchesne City is a small Utah community situated in the
northeast quadrant of the State of Utah with a population of less
than 2,000 residents.
2b
transferred the plot of land containing the monolith to
the Duchesne City Lion's Club.’ The quit claim deed,
which memorialized the transfer, noted the Lion's
Club's previous, current and future services to the
community as consideration for the land transfer.
Three weeks after the land transfer, on September 9,
2003, Summum?® sent a letter to Duchesne City
requesting a similar plot of land as that transferred to
the Lion's Club. Summum desired to place its own
monument containing its seven aphorisms next to the
Ten Commandments monolith, claiming its monument
would be similar in size and appearance. On October
4, 2003, and October 23, 2003, Summum sent
additional letters to che City, each requesting that it
receive a plot of land in Roy Park similar to that
transferred to the Lion's Club, and that Summum be
given the same treatment as the Cole Family and be
allowed to erect its monument on city property in Roy
Park.
On October 27, 2003, the City responded by letter
to Summum's requests. In its response the City made
it clear that it would not transfer land to Summum nor
would it allow Summum to erect its monument in Roy
Park unless and until Summum donated equal
amounts of time and service to Duchesne City
*The land transfer, which will be discussed in detail below,
consisted of Mayor Clinton Park transferring the parcel of land to
the Lion's Club in a private transaction using a Quit Claim Deed.
Mayor Park is also the president of the Lion's Club.
‘Summum is a church. Summum claims to have 250,000
members worldwide, and is headquartered in Salt Lake City,
Utah, where its founder and leader, Summum Bonum Amen Ra,
resides.
ee eee
3b
equivalent to that given by the Cole Family and the
Lion's Club.* Upon receiving the City's response,
Summum filed suit on November 26, 2003, alleging
violations of its First Amendment Free Speech rights
and its Free Speech rights pursuant to Article I,
Section 15 of the Utah Constitution. Summum also
alleged a violation of the state of Utah's Establishment
Clause pursuant to Article I, Section 4 of the Utah
Constitution.
Shortly after filing its Complaint, Summum made
a Motion for a Temporary Restraining Order and
Preliminary Injunction requesting the Court to enjoin
the City from giving a preference to the Cole Family
and the Lion's Club to present their private viewpoints
in a public forum. Both Summum and the City moved
for summary judgment. The Court held a hearing on
the parties' motions on January 8, 2004, at which time
the Court took the motions under advisement. The
Court then held a status conference on February 4,
2004, at which the Court requested supplemental
briefing on, among other issues, the constitutional
ramifications of allowing Summum's religious
monument on public property; the ability of the Lion's
Club to own real property; and, assuming the land
transfer to the Lion's Club was invalid, the
constitutionality of allowing the City to invalidate the
land transfer to the Lion's Club and then resell the
‘Prior to the Fall of 2003, Summum had not established any
ties to Duchesne City. There are no members of the Summum
religion that reside in Duchesne City, there are no places of
worship nor are there any current efforts by Summum to
proselytize in Duchesne City. According to the record, Summum
only became aware of the Ten Commandments monolith after
receiving a telephone call from someone who knew about it.
4b
parcel of land at public auction on the condition that
the purcliaser place a visible barrier of demarcation
and signage on the land to distinguish between public
and private land.
After receiving the supplemental briefing, the
Court held a status conference on May 26, 2004, at
which time the Court took the supplemental briefing
and all other additional motions filed by the parties
under advisement. The Court also encouraged the
parties to engage in settlement discussions and set
July 4, 2004 as a deadline for settlement discussions.
On July 4, both parties submitted a notice to the Court
outlining the actions taken in an effort to settle the
dispute. The City's notification alerted the Court to the
fact that it had nullified the land transaction made
with the Lion's Club and had then passed numerous
ordinances in an attempt to remove itself from
providing a limited public forum for private speech.
The City first passed ordinance 04-2, which covers the
disposition of city owned real property. The City then
passed ordinance 04-4 in which the city council voted
unanimously to vacate and sell the portion of land in
Roy Park on which the Ten Commandment monolith
sits and also to permanently close Roy Park as a forum
for private displays. Finally, the City passed ordinance
04-3 which authorized Mayor Clinton Park to execute
a quit claim deed covering the parcel of land containing
the Ten Commandments monolith in favor of Rae
Donna Jones, Lou Ann Larson, and Ro Jean Rowley,
the daughters of Irvin Cole. Accordingly, on July 13,
2004, the City sold the property to Ms. Jones, Ms.
Larson and Ms. Rowley, for the fair market value of
$250.00, based on an appraisal conducted by Duchesne
County. The sisters ‘are currently in the process of
Sb
placing a fence around the parcel of land along with a
sign to demarcate the boundary between public and
private land.”
Though the conditions and facts surrounding the
Ten Commandments monolith have been modified, the
parties have yet to reach a settlement. Summum
maintains the position that the current arrangement
remains in violation of the First Amendment's Free
Speech Clause, while the City contends that the recent
ownership change to the parcel of land in Roy Park
cures all constitutional infirmities and makes this
matter moot. The Court having considered the parties’
arguments issues the following Opinion and Order.
ANALYSIS
During the latter half of the 20 Century many towns
and cities in the United States accepted donations
displaying the Ten Commandments.® These
monuments were often placed by the municipalities in
“According to the City's counsel at oral arguments before the
Court on September 15, 2004, the plans for the property call for a
fence approximately 4 feet in height with a permanent sign
stating that the property is the private property of the Cole family,
and 1s not owned or maintained by Duchesne City.
"City of Elkhart v. Books, 532 U.S. 1058 (2001); ACLU
Nebraska Foundation v. City of Plattsmouth, Nebraska, 358 F.3d
1020 (8th Cir. 2004); Van Orden v. Perry, 351 F.3d 173, (5th Cir.
2003) Adland vu. Russ, 307 F.3d 471 (6th Cir. 2002); Indiana Civil
Liberties Union v. O'Bannon, 259 F.3d 766 (7th Cir. 2001);
Summum v. City of Ogden, 297 F.3d 995 (10th Cir. 2002); Freedom
From Religion Foundation, Inc. v. Zielke, 845 F.2d 1463, (7th Cir.
1988); and Anderson v. Salt Lake City Corp., 475 F.2d 29 (10th
Cir. 1973).
6b
city parks and near courthouses.
The acceptance of these gifts and their display
appears to have been generally accepted, at least
without legal challenge at the time of the donations.
Over time, however, numerous lawsuits challenging
the displays were filed, complaining that the displays
violate the Establishment Clause of the First
Amendment to the United States Constitution.’ The
outcome of these Establishment Clause challenges
varied from court to court and circuit to circuit.* In the
"City of Elkhart v. Books, 532 U.S. 1058 (2001); ACLU
Nebraska Foundation v. City of Plattsmouth, Nebraska, 358 F.3d
1020 (8th Cir. 2004); Van Orden v. Perry, 351 F.3d 173, (5th Cir.
2008) Adland v. Russ, 307 F.3d 471 (6th Cir. 2002); Indiana Civil
Liberties Union v. O'Bannon, 259 F.3d 766 (7th Cir. 2001);
Summum uv. City of Ogden, 297 F.3d 995 (10th Cir. 2002); Freedom
From Religion Foundation, Inc. v. Zielke, 845 F.2d 1463, (7th Cir.
1988); and Anderson v. Salt Lake City Corp., 475 F.2d 29 (10th
Cir. 1973).
“The United States Supreme Court has not directly addressed
the issue. However, in City of Elkhart, an Establishment Clause
case, Justice Rehnquist, joined by Justices Scalia and Thomas,
made the following observation regarding the secularity of Ten
Commandment displays in his dissenting opinion:
[W]e have never determined . . . that the Commandments
lack a secular application. To be sure, the Ten
Commandments are a "sacred text in the Jewish and
Christian faiths,” concerning, in part, "the religious duties of
believers." (citations omitted) Undeniably, however, the
Commandments have secular significance as well, because
they have made a substantial contribution to our secular
legal codes. .. . “[T]he text of the Ten Commandments no
doubt has played a role in the secular development of our
society and can no doubt be presented by the government as
playing such a role in our civic order." City of Elkhart, 1215S.
Ct. at 2211 (citations omitted) (Rehnquist, J., dissenting).
7b
Tenth Circuit Court of Appeals the issue was raised in
Anderson v. Salt Lake City Corp., 475 F.2d 29 (10th
Cir.1973), a case that involved the donation in 1972 of
a Ten Commandments monument by the Fraternal
Order of the Eagles to Salt Lake City, Utah. The City
accepted the donation and chose to place the
monument near the front steps of the City courthouse.
In its defense to the lawsuit, the City emphasized its
view that the Ten Commandments represented the
foundation of the laws of the United States and the
State of Utah, and for that reason they had secular
significance separate and apart from any religious
connotations. The Tenth Circuit agreed, finding that
the predominant feature of the Ten Commandments
was not religious in nature, and therefore the display
did not violate the Establishment Clause of the
Constitution.”
The Nineteen Nineties saw the emergence of a
"In making its determination the Tenth Circuit focused on the
secular aspect of the Ten Commandments stating:
[A]n ecclesiastical background does not necessarily mean that
the Decalogue is primarily religious in character - it also has
substantial secular attributes. .. . [T]lie Decalogue is at once
religious and secular, as, indeed, one would expect,
considering the role of religion in our traditions. After all, we
are a religious people whose institutions a Supreme Being."
Anderson, 475 F.2d at 33 (quoting Zorach v. Clauson, 343
U.S. 306, 313 (1952)).
After recognizing the secular nature of the Ten
Commandments the Tenth Circuit determined that the monument
was no more than a depiction of a historically important event
with both secular and sectarian effects leading to the holding that
the monument is “primarily secular, and not religious in
character; that neither its purpose or effect tends to establish
religious belief." Jd. at 33.
8b
different legal challenge to Salt Lake City's Ten
Commandments display, based not on_ the
Establishment Clause of the First Amendment but
rather on the Free Speech Clause of the same
amendment. In Summum v. Callaghan, the same
plaintiff as in the instant case contended that by
accepting the Ten Commandments monument and
displaying it on the grounds of the courthouse, the city
was permitting one actor to display its private speech,
and because the city was not willing to allow the
plaintiff to similarly display its religious views near
the courthouse steps, the plaintiff's free speech rights
were being violated. Summum v. Callaghan, 130 F.3d
906 (10th Cir. 1997). The Tenth Circuit agreed, holding
that the city had created a “limited public forum" and
that the city was required to allow other private
citizens to display their views there. Faced with this
situation, the city removed the Ten Commandments
monument entirely, and chose to close the area to any
displays. Once the city removed the monument the
case was not pursued further, and the action was
dismissed.
Generally fo)iowing this same rationale, although
with a slightly different legal analysis, five years later
the Tenth Circuit also found that the City of Ogden,
Utah was similarly in violation of Summum's free
speech rights in Summum v. City of Ogden, 297 F.3d
995 (10th Cir. 2002)."°
"There, Ogden City maintained a Ten Commandments
monument on the grounds of the Municipal Building. The
monument was donated to the city in 1966 by the Fraternal Order
of Eagles. Summum proposed that the city allow it to erect a
similar monument. ‘he City rejected Summum's proposal, which
led to Summum filing a § 1983 complaint alleging violations of the
9b
In the present case, Summum has challenged the
Ten Commandments monument in Duchesne City,
again basing its claim on the Free Speech Clause. As
outlined above, before commencing suit Summum
sought, and was denied, permission from Duchesne
City to erect its own monument in Roy Park. Unlike
Salt Lake City, and Ogden, and perhaps learning from
their examples, Duchesne City did not respond to
Summum's suit by defending its right to display the
Ten Commandments monument on city property or to
defend its right to have had it there in the past.
Rather, the City immediately took steps to disassociate
itself from the property and from the display of private
expression. From the beginning of this case the City
has never attempted to defend its prior actions, but it
has instead attempted to properly rid itself of any
association with the sponsorship of that particular
expression, and to get out of the business of opening up
city property to private speech by private actors.
The City's first attempt in this regard was to
convey the plot of land upon which the Ten
Commandments monument sits to the Duchesne Lion's
Club. The city’s Mayor Clinton Park took action to this
effect in August of 2003, whereby he transferred the
property pursuant to a Quit Claim Deed which was
presented to the Lion's Club in recognition of the
Club's many years of service and support to the City.
First Amendment. The Tenth Circuit held that Ogden City
violated Summum's First Amendment rights by rejecting
Summum's monument while displaying the Ten Commandments.
The Tenth Circuit's holding prompted Ogden City to move the
monument to privately owned land and to close the Municipal
Building grounds to any private displays. This action by the city
ended the controversy.
10b
Summum resisted this attempt on the City's part as a
proper resolution of this case, contending that the
"sale" was not arms-length, that it lacked legal
consideration, and that it did not sufficiently remove
the City's endorsement of and involvement with the
monument. It was noted by the plaintiff that there
were no efforts to put up signs or other notices that
would clearly state the property was no longer owned
or controlled by the City.
The Court also expressed reservations about this
so-called "sale" to the Lion's Club as an adequate
resolution of the case, in part because the transaction
appeared to lack adequate consideration and to be less
than an arms-length transaction. The City's mayor
was also the president of the Lion's Club, and there
were virtually no efforts, such as signs, notices, or
fences, to notify those who saw the monument that it
was not on private property and was not sponsored by
or associated with Duchesne City. Recognizing the
possibility of a settlement between the parties, and in
particular the City's apparent remaining desire to find
an appropriate way to cease engaging in the type of
free speech activity found in Callaghan and City of
Ogden, the Court encouraged the parties to consider
other ways of resolving the case.
Thereafter, in another effort to distance itself from
the monument, the City undid the sale to the Lion's
Club and instead sold the property to Rae Donna
Jones, Lou Ann Larson, and Ro Jean Rowley. These
women are the daughters of Irvin Cole, in whose name
the Ten Commandments was originally donated to the
City in 1979. According to the City, the sales price of
$250.00 reflects a fair market value appraisal of the
property. The transaction also includes the erection of
l1b
a fence around the property and signage which states
that the property is the private property of the Cole
family and is not owned by Duchesne City and that the
City has nothing to do with the property or anything
expressed on the property by its private owners. It is
also clear the Cole daughters are free to do whatever
they choose with the property, including removal of the
monument.
The City's latest action is similar to a proposal
advanced by the Seventh Circuit Court of Appeals in
Freedom from Religion Foundation, Inc. v. City of
Marshfield, 203 F.3d 487 (7th Cir. 2000). There a local
group sought injunctive relief against the City of
Marshfield, Wisconsin, because the city maintained a
statue of Christ in a city park. To get out of the display
business, the city sold the parcel of land containing the
statue to the Henry Praschak Memorial Fund, Inc., for
$21,560.00 ($3.30 a square foot).'' The sale complied
with all Wisconsin statutory requirements for the
disposition of real property.
In resolving the case, the Seventh Circuit
determined that the city's sale of its property
containing the statue was not government action
endorsing religion and was a reasonable method of
removing itself from promoting religious speech.
However, the Seventh Circuit determined that the city
failed to sufficiently remove itself from the perception
that the statue was still part of a public forum and
therefore found a violation of the Establishment
"The sale complied with all Wisconsin — statutory
requirements and the amount received was the highest price per
square foot that the City has received for a sale of its land.
12b
Clause.'” The Seventh Circuit went on, however, to
suggest an alternative to the City of Marshfield to
eliminate the Establishment Clause problem stating:
should the City (on City property) construct some
defining structure, such as a permanent gated
fence or wall, to separave City property from Fund
property accompanied by a clearly visible
disclaimer, on City property,(citations omitted) we
doubt that a reasonable person would confuse
speech made on Fund property with expressive
endorsement made by the City. City of Marshfield,
203 F.3d at 497
Summum contends this latest effort by the City is
not an adequate resolution of this lawsuit. Summum
insists on being allowed its own plot of city property
upon the same terms as were provided to the Ten
Commandments monument donated by the Cole
Family. Anything less than this remedy is not
satisfactory to Summum."”
"The language used by the 7th Circuit is as follows:
The sale transferred the statue from City ownership to
private ownership, and the Fund, a purely private entity, is
responsible for any expression inferred from the statue. Had
the sale of the property been conducted in such a manner as
to remove the impression that the statue remained part of
the public forum, there would be no question that the city
ended its Establishment Clause troubles. City of Marshfield,
203 F.3d at 496.
'SSummum's argument is as follows:
Summum desires-equal access to the forum. Summum seeks
to be treated like the Coles were before 2003, like the Lion's
Club was in 2003 and 2004, and now as the Cole heirs are
being treated. Defendant's maneuvering does not support free
speech, the exercise of religion, nor a constitutional display of
religious monuments. Rather, defendants simply support the
3b
Yonsidering all of the circumstances, including the
lengthy history of the monument in this case, this
Court agrees generally with the reasoning of the
Seventh Circuit in City of Marshfield and finds that
Duchesne City's recent efforts to disassociate itself
from further involvement with the Ten
Commandments monument are sufficient, with the
exception of money damages to which Summum may
be entitled, to render moot the present action.
Duchesne City has undertaken adequate actions to
make it clear that the monument sits on property that
is neither owned nor controlled by the city, and that
nothing on the property is in any way endorsed by or
associated with Duchesne City. No reasonable person
upon visiting the area could believe the city is
presently sponsoring whatever expression is reflected
on the plot owned by the Cole daughters. Indeed, the
decision whether to continue to keep the monument on
the property is solely within the discretion of the
women who now own the property. They are free to use
their property as they desire.
The Court's decision is based not on a
determination that the City's actions necessarily
constitute the best possible solution to the problem
(opinions on what is "best" will in any event vary
depending on one's point of view), but on whether it is
a constitutionally adequate method for the City ’to
disassociate itself from any present sponsorship of free
speech activity.
permanent display of only one set of religious ideals in a
location especially created for that unconstitutional purpose.
Plaintiffs Response to Defendant's Notice of "Changed
Circumstances," pgs. 5-6.
14b
There are no perfect solutions in a case of this
nature with its unique history and its unique facts. It
is obviously impossible for the City to undo its past
involvement with the monument. For the majority of
the past 25-plus years, the City apparently felt that it
had properly (legally) accepted a gift from a long-term
resident family and properly displayed the gift in Roy
Park without violating any laws. As noted above, in
1979 it became the clearly established law in this
circuit that Salt Lake City's display of a similar Ten
Commandments monument did not violate the
Establishment Clause. When confronted with the
present lawsuit in 2004, as explained above, the City
chose not to defend its prior actions, but rather to
disassociate itself from them. Under all of the
circumstances the method the City recently undertook
is reasonable. Summum's demands for a different
resolution are not warranted. It is not necessary for
the City to do more than it has done to appropriately
remove itself from improperly sponsoring the Ten
Commandments as someone else's private speech. The
City has effectively communicated to the public that it
is not sponsoring the speech and has turned the matter
entirely over to private actors. Complete dismantling
or removal! of the monument, as occurred in Salt Lake
City, although also a sufficient solution, is neither
required nor requested by plaintiff. Indeed, even
complete removal of the monument may not satisfy
this plaintiff, or any other similarly situated plaintiff.
It is not beyond the realm of possibility that a plaintiff
may insist that to make things right in these
circumstances the plaintiff must be allowed to a) have
the city accept the plaintiffs donation, b) install it in
Roy Park, Duchesne City, c) for 29 years, and d) at the
1Sb
end of that period, sell the plot of land to the plaintiff
for fair market value, and e) then allow the plaintiff to
do whatever it wants with the land and the monument.
Or another plaintiff may demand something entirely
different, such as removal of the present monument,
and the installation of its own monument in the city
park with permission to remain there for 29 years, at
the conclusion of which the plaintiff's monument would
be likewise removed and destroyed. Another plaintiff
may not be content with any of these possibilities.
Summum's request for its own monument to be
displayed in Roy Park, either on city-owned land, or
public property sold to it, would only perpetuate the
City's entanglement with the sponsorship of private
expression activities of private parties as defined in
Callaghan and City of Ogden. Any solution of that
nature would open the door to another display and
then another, and so on, until the city park looks like
a NASCAR driver at the Brickyard 400.
Based on the Court's finding that the City's actions
in removing itself from sponsorship of the Ten
Commandments monument are adequate to remove
the City from further sponsorship of private
expression, the Court denies to plaintiff the specific
injunction remedy it seeks. Plaintiff's Motion for
Summary Judgment is DENIED. Defendant's Motion
for Summary Judgment is GRANTED.
The only remaining issues are plaintiff's claims for
money damages and attorneys fees.
IT IS SO ORDERED.
Dated this 20th day of May, 2005
16b
By the Court
/s/
Dee Benson
Chief Judge
United States District Court
Ic
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
CENTRAL DIVISION
SUMMUM, a corporate
sole and church,
Plaintiff,
DUCHESNE CITY,
Defendant.
)
)
)
)
)
Vs. ) CASE NO. 2:03-CV-1049DB
)
)
)
)
)
BEFORE THE HONORABLE DEE BENSON
April 28, 2005
Motion Hearing
[16] * **
THE COURT: Okay. The way I see it is simply
this. [17] It may be appropriate for me to ask you to do
one additional brief in this case, and I apologize in
advance, if that is what we end up doing. I had in the
past, I think, clearly, at least I know from my point,
since I am not clairvoyant, but I have found a problem
in terms of the constitutionai adequacy of the City of
2c
Duchesne’s efforts to get out of the business of
providing a public or non-public forum, public forum,
limited use public forum, whatever you want to call it,
for the purpose of private actors to express themselves.
I am guided by the two decisions by the Tenth
Circuit, Callaghan, which was my own case, and I
know it only too well, and the City of Ogden case.
Those cases laid down clear guidelines and a clear
legal analysis for the free speech issue brought in those
cases. It was brought by Summum in both cases, and
in both cases, as we all know, the Tenth Circuit ruled
in favor of Summum and found that Summum’s free
speech rights had been violated, regardless of the
fences thrown up by the City of Salt Lake in the
Callaghan case, or by the City of Ogden in the Ogden
case. As we all know, there were a lot of them and
there were reasons why this was not an appropriate
use of government property and to accept the donation
and all of that.
The Tenth Circuit said, no, what you have created
in Callaghan is they find something called a limited
use non-public forum or limited use public forum, |
thought it was [18] limited use public forum, it was one
of the two, and they championed it as a new term of art
in this developing case law regarding the free speech
clause, not to mention that it reversed yours truly.
But they disregarded the defenses as valid legal
defenses by the City of Salt Lake and said, no, under
these circumstances you have violated Summum’s free
speech rights, and left the clear impression, I think,
that if you don’t do something about it, and you have
got two choices, you can either give Summum an equal
opportunity to display its monolith, or you can remove
the one that you have got there, which is what the City
RYe
of Salt Lake did.
In Ogden the legal analysis was slightly different,
but it reached the same result. You are violating
Summum’s free speech rights, and the City of Ogden
decided to transfer the monument, as I understand it,
to non-city property and away from city hall where it
was located, or wherever it was displayed.
In light of those cases I would be inclined to find
clearly that the City of Duchesne was in violation of
Summum’s free speech rights right up until it
transferred the property to the Lion’s Club. Clearly, I
guess on that we would all have to agree. If Summum
had made its request for a marker similar to the way
they made it in Salt Lake, and similar to the way they
made it in Ogden, and the city tried to defend itself by
saying we have every right to have this monument
here [19] and it is not violating your free speech rights,
they would have lost.
When this case came to me we were in the
interesting situation where the city had already done
something to attempt to get the monument off of public
property and get it onto private property with a private
actor owning the property and entitled to do whatever
it wanted to do with what was formerly public
property.
I was inclined, as I said in my written opinion, to
agree generally with the reasoning with the City of
Marshfield case out of the Seventh Circuit. In that case
the issue was not free speech, and that I think is
important to note. It was not free speech, it was
whether the establishment clause was being violated
by a statute of Jesus Christ in a city park. The Seventh
Circuit held that an effort on the city’s part, as you
know, to transfer that to a private owner was not
4c
enough to eliminate the establishment clause violation.
They did, however, in dictum in their opinion state
that if there had been enough signage around the
monument and enough demarcation so that no
reasonable observer would believe that the statute still
sat on public property or was endorsed by the city,
then it would be an appropriate way for the city to stop
violating this establishment clause. That later
happened. I believe that was the end of the case.
In this case I suggested, in my efforts to get this
[20] settled, that the city had problems with its current
situation, in which the land transfer was only between
the mayor and himself wearing two different hats, and
where there was some issue as to whether it was a
valid state transfer, in any event.
Thirdly, that there was some issue as to whether
there was sufficient consideration paid. Fourthly, and
probably most important from my standpoint, is that
there were no apparent efforts taken to tell a
reasonable passerby, a reasonable observer, that the
city was not an endorser of and participant in this
display. There was no signage. There was no fence.
There was no flashing neon sign saying this is the
property of the Lion’s Club in Duchesne City, and the
City of Duchesne has no involvement or anything of
that nature.
I tried to suggest that maybe this can go away
because it looks like the city has already started down
this road. I'm suggesting they have not gone far
enough. And then when the city did go the next step,
I found that it was far enough. So the issue as to
whether Mr. Barnard’s client has prevailed centers
solely on whether Summum’s free speech rights were
violated during the time that the conditions existed
Sc
where the city had transferred the property to the
Lion’s Club. I see a possible distinction between the
establishment clause, which is a different kind of right
than a free speech right. A free speech right gives the
free speech right to a citizen to [21] exercise freedom of
expression. The establishment class prevents the
government from doing anything to establish a certain
religion. In the City of Marshfield it was the
establishment clause. So once they had taken enough
steps to get out of the business of establishment, they
are no longer in violation of the establishment clause.
But right up until they did that in the City of
Marshfield case, the Seventh Circuit held that they
were in violation of the establishment clause.
Whether that same holding would be applicable in
this free speech case, I’m not so sure. Here Summum
comes in when the city, it appears to me from the facts
that are undisputed, was making attempts to rid itself
of this monument. I found in my written opinion that
it was not constitutionally adequate for me not to
consider granting some kind of injunctive relief. But
I’m not, as I say that, satisfied, and as I sit here and I
have read especially Mr. White’s and Mr. Manion’s
motion for summary judgment, and it seems to touch
on this, but they also seem to maybe be rearguing
Callaghan and the City of Ogden which we can’t do.
They seem to think that ownership alone is the key to
whether a city is involved with an improper private
expression opportunity. I don’t think so. I think the
question is whether the city is endorsing it or being
involved with it to the point that another private actor
should be entitled to the same opportunity. That was
clearly the case in Callaghan and City of Ogden
because one private actor was being [22] given that
6c
opportunity. The Tenth Circuit certainly didn’t say,
well, because the City of Salt Lake saw a distinction
between Summum and the Fraternal Order of Eagles
which gave us the Ten Commandments monolith, then
it is okay. It is just a different actor. That wasn’t their
analysis.
If I do get further briefing, it needs to be focused
clearly on the binding precedents before this Court
which is Callaghan and City of Ogden. The defendants
would be obligated to point out to me why when the
Lion’s Club situation was in place it was not a violation
of Summum’s free speech rights. And the reason that
presents practical possibilities in my mind is because,
as a practical matter, what exactly was it that
Summum was being robbed of in that particular
scenario? Did they rally think the city would say, oh,
because we have not maybe distanced ourselves far
enough to satisfy Judge Benson in his analysis of
possibly exercising his equitable powers, that we are at
the same time violating Summum’s free speech rights
when we are doing everything that we can, and maybe
it is as good or not as it could be done, but to get out of
this business. SoSummum comes along at a time when
conceptually it may be difficult to say that their free
speech rights were being violated.
But, on the other hand, if you take Callaghan and
the City of Ogden and match them up against the
situation, and which I am on record as saying there
was not a sufficient [23] distancing to satisfy my view
of what the constitution would require for a permanent
solution, and that was based, as! said earlier, on this
simple test, that would a reasonable person passing by
that parcel believe the city was endorsing that private
speech? In looking at it that way, Mr. Barnard wins
Tc
and it is maybe a technical prevailing but it is
prevailing. Free speech rights were violated, no matter
how nominally and no matter how technically. I believe
it is fair to say that that is where I have been in the
past, having not really contemplated the difference
between the establishment clause and the free speech
clause.
I have talked way too long, but I can say that with
the present briefing I feel that that issue has been
sufficiently brought to a head to where I feel
comfortable in ruling. I'll invite any comments you all
want to make.
By the way, one other thing. I want to emphasize
that point about nominal. I am extremely inclined to
find only nominal damages, if I do find in Mr.
Barnard’s favor, a very technical and very narrow
window violation of Summum’s rights. They didn’t get
involved until after the property had been transferred
to the Lion’s Club. I am inclined at the present time to
exercise my discretion with respect to the award of
attorney’s fees consistent with recognizing that it is
not just nominal in the sense of one dollar or twenty
dollars, but that it does not:carry also with it the
entitlement to receive a [24] great measure of
attorney’s fees. I say that in an effort that it might
help you to sit down and settle this.
I think if I’m going to rule on that question that is
mixed up in your other pending motion, and I think
you're very good lawyers, and I am especially probably
moved by the fact that I have Mr. White and Mr.
Manion on the other side, and they have briefed it so
much more thoroughly than you have at this point, I
think, but I don’t know that they have hit on all the
right points. I think I’m going to ask for more briefing
8c
unless you talk me out of it. Mr. Barnard is always
pretty good in doing that. He has a better track record
than about any lawyer that appears before me of
talking me out of things.
i
[33]}* & &
THE COURT: Well, I am not going to ask for
further briefing. I guess Mr. Barnard did talk me out
of it. The reason I guess I’m not agreeing with Mr.
White is because I find Callaghan and the City of
Ogden controlling, and based on those cases, find a
violation of Summum’s free speech rights during that
narrow period of time that the city attempted to get
out of the business of sponsoring a private actor’s free
speech opportunity when it sold the property to the
Lion’s Club. Because the plaintiff has not proven to
me by a preponderance of the evidence that there was
no sale, I can’t find that there was anything but a sale.
The reason I’m finding Callaghan and the City of
Ogden controlling is because [34] of my previous order,
and the Court's position still is that the city did not do
enough to remove the city’s imprimatur on that parcel
of land. Simply recording a quitclaim deed in the city
recorder’s office in this Court’s view was not enough.
It is a little like an alter ego theory, to borrow a legal
analogy, where somebody is facing chapter seven
bankruptcy and puts his car in his wife’s name. There
are a lot of times when legal ownership may have
validly transferred, but it does not mean that there
still won’t be repercussions that flow from the fact that
it was not transferred as validly as it should have
been, which was the reason for this Court’s staying
with this case as long as it did.
I thought there may be a distinction between the
9c
City of Marshfield and this case. As I sit here I am not
sure, and frankly I don’t think it is worth it. This case
is not going to have precedents for very many
situations, unless you have a city routinely with the
mayor being also the president of the Lion’s Club and
in an effort to get out of the Ten Commandant site on
city property doing a quitclaim deed and nothing else,
no signage, no public announcement or anything else.
I suppose pragmatism is entering in here. [ am
granting Mr. Rarnard’s motion for declaratory relief
and finding nominal damages in the amount prayed for
of $20. That leaves open the question of attorney’s fees.
I guess I need briefing on that.
[35] You have not finalized that motion, have you?
MR. BARNARD: We have not made that motion.
I would be happy to do so.
THE COURT: I think that moves this case along,
frankly. I don’t know that it would be worth your —
well, | am sure anything would be worth the time, but
I am finding that the standing issue was previously
abandoned by the city and then later the attempt to
revive it after this Court had already entertained the
case on its merits, and if the circuit wants to look at
standing I guess they can. I’m quite inclined to find
standing where they took the steps to actually write a
letter to the city, and there has been no proof that
Summum was not ready, willing and able to install its
monument on city owned property or property deeded
to it by the city. I think under the First Amendment
standing cases that I read back when I was quite
interested in it, it appeared to me that that was
enough. It is an area where I think the courts are going
to be giving quite a lot of latitude to plaintiffs. I don’t
think a simple reading about it in the newspaper and
10c
then filing a federal court action would be enough, but
they did more here. They actually took the steps to
communicate with the city and seek the expression of
their own free speech rights, to which they received a
response, and from which sprang their complaint. I’m
also being a little pragmatic there.
So for both of those reasons, for the lateness of it
[36] being renewed as a legal proposition and in light
of the rather tortured history in this case, and because
I am finding on the merits that the plaintiffs have
standing, Ill rule in favor of the plaintiffs on the
standing issue.
ld
APPENDIX D
SUMMUM VS. DUCHESNE CITY,
Case No. 2:03-CV-1049DB
United States District Court, District of Utah,
Central Division
Docket Report, 04/28/2005, Doc. 112
Minute Entry for proceedings held before Judge Dee
Benson: Argument heard on pending motions. The
Court denies Dft?s motion for summary judgment for
lack of standing. The Court denies Pla?s motion to
strike affidavits. The Court grants Dft?s motion to
amend order as to Dft?s first two requests. The Court
rules that Dfts violated pla?s constitutional rights.
Counsel are to submit briefing regarding attorney fees.
entered 76 Motion for Extension of Time, entered 83
Motion to Amend/Correct, granting in part and
denying in part 86 Motion to Amend/Correct, entered
99 Motion to Amend/Correct, denying 101 Motion to
Strike, Motion Hearing held on 4/28/2005 re 76 Motion
for Extension of Time filed by Duchesne City,, Clinton
Park,, Yordys Nelson,, Nancy Wager,, Paul Tanner,,
Darwin McKee,, Jeannie Mecham,, 99 Motion to
Amend/Correct filed by Duchesne City,, Clinton Park,,
Yordys Nelson,, Nancy Wager,, Paul Tanner,, Darwin
McKee,, Jeannie Mecham,, 83 Motion to
Amend/Correct filed by Summum,, 101 Motion to
Strike filed by Summum,, 86 Motion to Amend/Correct
filed by Duchesne City,, Clinton Park,, Yordys Nelson,,
Nancy Wager,, Paul Tanner,, Darwin McKee,, Jeannie
Mecham,. Attorney for Plaintiff: Brain Barnard,
Attorney for Defendant Francis Manion and Ed White.
(Court Reporter Ed Young) (reb,) (Entered: 05/17/2005)
le
APPENDIX E
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH - CENTRAL DIVISION
SUMMUM,
Plaintiff,
VS.
DUCHESNE CITY, et al., Case No. 2:03ev1049
Defendants,
Judge Dee Benson
ORDER
The above captioned matter came before the Court
for hearing on April 28, 2005, the Hon. Dee Benson,
United States District Court Judge presiding, the
Plaintiff appearing by and through counsel, Brian M.
Barnard, of the Utah Legal Clinic, the Defendants
appearing by and through counsel, Edward L. White,
III (appearing pro hac vice), of the St Thomas More
Law Center, and Francis J. Manion (appearing pro hac
vice), of the American Center for Law and Justice. The
Court, having reviewed the parties’ briefing and
having heard the parties’ arguments, issues the
following order.
1. Plaintiff's Motion for Summary Judgment Re:
Declaratory relief and Damages (Doc. #91) is
GRANTED in accordance with Summum v. Callaghan,
130 F.3d 906 (10" Cir. 1997), and Summum v. Ogden,
2e
297 F.3d 995 (10 Cir. 2002).
2. Defendants’ Motion for Summary Judgment
on Money Damages and Attorney Fees (Doc #88) is
DENIED.
3. Defendants’ Motion for Summary Judgment
Re: Standing (Doc. #51) is DENIED.
4. Plaintiffs Motion to Strike Portions of
affidavits (Doc. #101) is DENIED.
5. Defendants’ Motion to Correct Docket Entry
# 94 (Doc. # 99) is GRANTED as to paragraphs one
and two of the motion. The motion is DENIED as to
paragraph three.
6. SUMMUM is awarded $20.00 nominal
damages. SUMMUM is also awarded attorney fees,
the amount of which will be determined later based on
a submission by the Plaintiff and a response by the
Defendants. The award shall be limited to an amount
consistent with the technical nature of the Defendants’
Violation as found by the Court.
IT IS ORDERED
DATED this 26" day of May, 2005.
/s/
Dee Benson
United States District Judge
If
APPENDIX F
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH - CENTRAL DIVISION
SUMMUM, a corporate sole and church
Plaintiff,
vs. Case No. 2:083CV0149
DUCHESNE CITY, et al., Judge Dee Benson
Defendants.
Before the Court is Plaintiff Summum’s Motion to
Set Attorney Fees. On May 26, 2005, the Court issued
an Order awarding Plaintiff $20.00 nominal damages
and attorney fees. The Order stated that the amount
of the attorney fees would be determined later “based
on a submission by the Plaintiff and a response by the
Defendants.” The Order further stated that the
attorney fees would be limited “to an amount
consistent with the technical nature of the Defendants’
violation as found by the Court.”
Plaintiff and Defendants have now briefed the
issue and request a decision from the Court. Plaintiff
argues that it is entitled to a full award of attorney
fees, while Defendants argue that Plaintiff is entitled
to either no fees, or a low fee award. For the reasons
2f
set forth below, the Court finds that Plaintiff is
entitled to a low fee award.
ANALYSIS
The background for this case can be found in the
Court’s Second Amended Opinion and Order, dated
May 20, 2005. Having achieved a nominal victory,
Plaintiff now argues that it is entitled under 42 U.S.C.
§ 1983 to an award of $69,444.00, which represents its
full amount of attorney fees for this litigation.
The Civil Rights Attorney’s Fees Awards Act states
that “in any action or proceeding to enforce a provision
of section... 1983... the court, in its discretion, may
allow the prevailing party . . . a reasonable attorney’s
fee as part of the costs.” 42 U.S.C. § 1988. The United
States Supreme Court has held that “a plaintiff who
wins nominal damages is a prevailing party under §
1983.” Farrar v. Hobby, 506 U.S. 108, 113 (1992).
Plaintiff is thus eligible for an award of attorney fees,
and the Court recognized as much in its May 26, 2005
Order. The task now before the Court is to determine
what amount of an award is “reasonable.” 42 U.S.C. §
1988. The Court’s discretion is used to make this
determination. Id.
Plaintiff and Defendant point out that courts have
differed in what constitutes a reasonable award in a
nominal damages case. The Supreme Court has
identified three factors that courts consider in making
this determination: (1) the difference between the
amount sought and the damages recovered; (2) the
significance of the legal issue on which the plaintiff
claims to have prevailed; and (3) the accomplishment
of a public goal other than occupying the time and
3f
energy of counsel, court, and client. Farrar, 506 U.S. at
114-16; id. at 116-22, (O’Connor, J., concurring);
Barber v. Williamson, 254 F.3d 1223, 1229-33 (10" Cir.
2001).
No one factor is necessarily controlling; nor should
all three factors necessarily be given equal weight.
The bottom line is that all three factors should be
given due consideration, but ultimately it is within
the discretion of the. . . district court to determine
what constitutes a reasonable fee given the
particular circumstances.
Barber, 254 F.3d at 1233.
Under the first factor, the Court considers the
difference between the amount sought and the
damages recovered. In this case, Plaintiff originally
sought general, special, and pun'tive damages “in the
sum of at least one dollar ($1.00) each but in a larger
and appropriate sum as to be determined at trial.”
Plaintiff later waived “all damages in excess of $20.00.”
The Court awarded Plaintiff nominal damages in the
amount of $20.00. Thus, in terms of monetary
damagcs, Plaintiff received what it sought. Plaintiff
did not receive, however, the specific injunctive and
equitable relief it demanded. Namely, Plaintiff wanted
to be granted a plot of land and be allowed to erect its
monument of seven aphorisms.
Under the second factor, the Court considers the
significance of the legal issue on which the plaintiff
claims to have prevailed. The Tenth Circuit has
interpreted this factor as requiring a consideration of
a plaintiffs “success as opposed to the importance of
the legal issue... .” Barber, 254 F.3d at 1231. “In this
circuit, the second factor .. . goes beyond the actual
relief awarded [which is the focus of the first factor] to
4f
examine the extent to which the plaintiff succeeded on
[his] theory of liability.” Jd. (citation and quotation
omitted) (alterations in original). In this case, Plaintiff
succeeding in showing a technical violation by
Defendants. Plaintiff did not succeed, however, in
having the offending monument removed from the
area, or in having its own monument erected.
Under the third factor, the Court considers
whether the litigation accomplished a public goal.
Relevant considerations include whether the plaintiffs
victory will encourage attorneys to represent civil
rights litigants, whether the victory affirms an
important right, whether the violation was egregious,
whether the victory will deter future lawless conduct,
and whether the lawsuit set important precedent. /d.
at 1231-32. This factor “should not be construed too
liberally.” Jd. at 1233. While the free expression rights
at underlying Plaintiffs claims are important, the
Court finds that this lawsuit did not accomplish a
significant furthering of those rights. This case did not
halt egregious violations or set important precedent.
In addition to the three factors just discussed, the
Court is also mindful of the Farrar court’s statements
regarding attorney fee awards in nominal damages
cases. According to Farrar, “[i]Jn some circumstances,
even a plaintiff who formally ‘prevails’ under § 1988
should receive no attorney’s fees at all.” Farrar, 506
U.S. at 115. A plaintiff receiving only nominal damages
is often such a prevailing party. Jd. This is because
“damages awarded in a § 1983 action must always be
designed to compensate injuries caused by the
[constitutional] deprivation.” Jd. (citations and
quotations omitted) (alteration and emphasis in
original). Thus, for a plaintiff recovering only nominal
Sf
~
damages, “the only reasonable fee is usually no fee at
all.” Id. In addition, “fee awards under § 1988 were
never intended to produce windfalls to attorneys.” Id.
(citation and quotation omitted).
CONCLUSION
Given the above analysis, the particular
circumstances of the case, and the overall de minimus
victory of Plaintiff, the Court finds that a low fee
award is reasonable in this case. Accordingly, the court
sets the attorney fee award for this case at $694.40.
IT 1S SO ORDERED.
Dated this 16" day of Sept. 2005
By the Court
/s/
Dee Benson
Chief Judge
United States District Court
lg
APPENDIX G
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
SUMMUM, a corporate sole and church,
Plaintiff - Appellant/
Cross-Appellee,
Vv. No. 06-4057
DUCHESNE CITY, a governmental
entity, et al.,
Defendants - Appellees/
Cross-Appellants.
SUMMUM, a corporate sole and church,
Plaintiff - Appellant,
Vv. Nos. 05-4152, 05-4168,
05-4272 & 05-4282
PLEASANT GROVE CITY, municipal
corporation, et al.,
Defendants - Appellees.
22
ORDER
Filed September 5, 2007
Before TACHA, Chief Circuit Judge, EBEL, Circuit
Judge, and KANE,,* District Judge.
This matter is before the court on the
Defendants’ motions to stay the issuance of the
mandates in the above captioned appeals. The
motions are granted
Entered for the Court,
/s/
ELISABETH A. SHUMAKER
Clerk
*Honorable John L. Kane, Jr., Senior District Judge
for the District of Colorado, sitting by designation.
lh
APPENDIX H
No. 06-4057, Nos. 05-4162, 05-4168, 05-4272 &
05-4282
UNITED STATES COURT OF APPEALS FOR THE
TENTH CIRCUIT
SUMMUM, a corporate sole and church, Plaintiff-
Appellant,
V.
PLEASANT GROVE CITY, a municipal corporation;
JIM DANKLEF, Mayor; MARK ATWOOD, City
Council Member; CINDY BOYD, City Council
Member; MIKE DANIELS, City Council Member;
DAROLD MCDADE, City Council Member; JEFF
WILSON, City Council Member; CAROL HARMER,
former City Council Member; G. KEITH CORRY,
former City Council Member; FRANK MILLS, City
Administrator, Defendants-Appellees.
and
SUMMUM, a corporate sole and church, Plaintiff-
Appellant/Cross-Appellee,
¥e
DUCHESNE CITY, a governmental entity;
CLINTON PARK, Mayor of Duchesne City; YORDYS
NELSON; NANCY WAGER; PAUL TANNER;
DARWIN MCKEE; JEANNIE MECHAM, city
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council members, Defendants-Appellees-
Cross-Appellants.
August 24, 2007, Filed
ORDER
Before TACHA, Chief Judge, KELLY, HENRY,
BRISCOE, LUCERO, MURPHY, HARTZ, O'BRIEN,
MCCONNELL, TYMKOVICH, GORSUCH, and
HOLMES, Circuit Judges.
These matters are before the court on two separate
petitions for rehearing, both with en banc suggestions,
filed by the appellees. The petitions were filed
separately and correspond to the two opinions issued
in these appeals on April 17, 2007.
The requests for panel rehearing are denied by the
original panel which decided these cases.
The en banc petitions were transmitted to all of
the judges of the court who are in regular active
service. A poll was requested. Through an equally
divided vote, the decisions of the panel will stand. See
Fed. R. App. P. 35(a); 10th Cir. R. 35.5 (noting that a
majority of the active judges of the court may order
rehearing en banc). Accordingly, the en banc requests
are denied. Judges Lucero, O'Brien, McConnell,
Tymkovich, Gorsuch and Holmes would grant
rehearing en banc. Judges Lucero and McConnell have
filed dissents to the denial. They are attached and
incorporated in this order. Judge Gorsuch has joined in
Judge McConnell's dissent. Judge Tacha, writing
separately, has responded. That response is also
incorporated in this order.
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LUCERO, J., dissenting from denial of rehearing en
banc.
Because the panel's opinion will leave our circuit
unnecessarily entangled in future review of time,
place, and manner restrictions, and because in my
judgment the panel's opinion incorrectly decides the
question of the nature of the forum involved in cases of
this type, I respectfully dissent from the denial of
rehearing en banc. Conceptually, it is important to
distinguish between transitory and permanent speech.
As I see it, not unlike most public parks in America in
which permanent monuments have been placed, the
cases before us involve limited public fora. In limited
public fora, local governments may make
content-based determinations about what monuments
to allow in such space, but may not discriminate as to
viewpoint.
As an initial matter, I agree with the panel that
these monuments do not constitute government
speech. Under the Wells framework, the government
must have exercised some control over the form and
content of the speech before the fact, not merely
accepted it after the fact. Wells v. City & County of
Denver, 257 F.3d 1132, 1141-43 (10th Cir. 2001)
(holding sign was government speech where the city
had "complete control over the sign's construction,
message, and placement"; the city “built, paid for, and
erected the sign"; and corporate sponsors did not
"exercise[] any editorial control over its design or
content."). [In these cases, the private parties conceived
the message and design of the monuments without any
government input, thus the speech must be considered
private. See Summum v. City of Ogden, 297 F.3d 995,
1004-06 (10th Cir. 2002) (holding monument was not
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government speech where Fraternal Order of Eagles
"designed, produced, and donated the ‘Ten
Commandments Monument"; central purpose of
monument was "to promote the views and agenda of
the Eagles rather than the City of Ogden"; "Eagles
exercised complete control over the content of the
Monument, turning over to the City of Ogden a
completed product"; and city only claimed to adopt
views of monument "post hoc"). It follows that these
cases necessarily implicate government regulation of
private speech. '
Whether government regulation of private speech
violates the First Amendment depends on context.
Courts engage in forum analysis to determine whether
the speaker acts in a traditional public forum, a
designated public forum, or a nonpublic forum, and it
is in this analysis that | differ with the panel. In
identifying the type of forum involved, we first
consider the government property at issue and the type
of access sought. Cornelius v. NAACP Legal Def. &
Educ. Fund, Inc., 473 U.S. 788, 800 (1985); City of
Ogden, 297 F.3d at 1001. Unly after the type of forum
is identified do we ask whether it is public or nonpublic
in nature. Because the government property involved
in these cases consists of the city parks, and the access
sought is the installation of permanent monuments,
the panel correctly concludes that the relevant forum
consists of permanent monuments in the city parks.
See Summum v. Pleasant Grove City, 483 F.3d 1044,
1050 (10th Cir. 2007); Summum v. Duchesne City, 482
‘Although the monument involves a religious message, these
cases properly consider the question of free speech, not
establishment of religion.
Sh
F.3d 1263, 1269 n.1 (10th Cir. 2007). In the next step
of the forum analysis, however, the panel asserts that
the relevant forum is the entire park, regardless of the
type of access sought. Pleasant Grove, 483 F.3d at
1050; Duchesne, 482 F.3d at 1269. The panel's claim
that access "is relevant in defining the forum, but...
does not determine the nature of that forum," id. at
1269 n.1, confuses the forum analysis. Only by defining
the forum with reference to the access sought can a
court determine the nature of that forum. See
Cornelius, 473 U.S. at 801. In Perry Education Ass'n v.
Perry Local Educators’ Ass'n, a case which the panel
cites, the Supreme Court first narrowed the forum to
the mail delivery system within a school, and only then
did it consider the nature of this forum; it did not
simply conclude that schools in general are public fora.
460 U.S. 37, 49 (1983). Perry also held that a court may
make conceptual distinctions in defining the forum,
even if there are no physical barriers. See Cornelius,
473 U.S. at 801 ("Perry ... examined the access sought
by the speaker and defined the forum as a school's
internal mail system and the teachers' mailboxes,
notwithstanding that an ‘internal mail system' lacks a
physical situs.") (citation omitted). As in Perry and
Cornelius, Summum seeks access to a particular
means of communication, but the nature of the forum
necessarily hinges both on the method of
communication and on the location.
The panel gives great weight to the conception that
city parks are "quintessential public forums,” see Perry,
460 U.S. at 45, but in my view, permanent displays do
not fall within the set of uses for which parks have
traditionally been held open to the public. In Perry, the
Court noted that parks are "places which by long
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tradition or by government fiat have been devoted to
assembly and debate," and "which have immemorially
been held in trust for the use of the public, and, time
out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and
discussing public questions." Jd. (quotation omitted)
(emphasis added). As Perry indicates, our modern
concept of the park as a public forum derives from a
well-established common law right to assemble and
speak one's mind in the commons. This right, however,
does not extend to the type of displays at issue here,
and one would be hard pressed to find a "long
tradition" of allowing people to permanently occupy
public space with any manner of monuments. In short,
a park is a traditional public forum when access is
sought to it for temporary speech and assembly, such
as protests or concerts, but it hardly follows that parks
have been held open since time immemorial for the
installation of statues of Balto the Husky or the
sword-wielding King Jagiello, to note two of the more
popular attractions in New York City's Central Park.
I recognize that there is some disagreement among
our sister circuits on this point, but courts consistently
have given special consideration to the issue of
displays installed on public land. In Graff v. City of
Chicago, 9 F.3d 1309, 1314 (7th Cir. 1993), the Seventh
Circuit held that "[t]here is no private constitutional
right to erect a structure on public property. If there
were, our traditional public forums, such as our public
parks, would be cluttered with all manner of
structures." (quotation and citation omitted). The
Second Circuit in Kaplan v. City of Burlington, 891
F.2d 1024, 1029 (2d Cir. 1989), determined that the
city "had not created a forum in City Hall Park open to
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the unattended, solitary display of religious symbols."
By stating that the City of Burlington must
affirmatively open the public park for this kind of use,
the Second Circuit recognized that such physical
occupation of park space does not fall within the scope
of the traditional public forum, but rather the
government must assent to such access before a forum
is created. By contrast, the Ninth Circuit has held that
"[njo affirmative government action is required to open
a traditional public forum to a specific type of
expressive activity." Kreisner v. City of San Diego, 1
F.3d 775, 785 (9th Cir. 1993). Kreisner acknowledged,
however, that the government might close the park
with respect to large unattended displays, but held
that the plaintiff had failed to meet his burden of proof
on this point. Jd. This is to say, that even the Kreisner
court has recognized that it is not a foregone
conclusion that parks are traditional public fora for all
uses, particularly for the installation of permanent
displays.
In my view a park is not a traditional public forum
insofar as the placement of monuments is concerned,
but that still leaves the question of whether it is a
designated public forum or a nonpublic forum.
Although there is a disagreement among our sister
circuits regarding the categorization of limited public
fora, this circuit and recent Supreme Court opinions
have treated limited public fora as a species of
nonpublic fora. See Good News Club v. Milford Cent.
Sch., 533 U.S. 98, 106-107 (2001) (in a limited public
forum, the state may restrict speech but many not
discriminate on the basis of viewpoint (citing
Rosenberger v. Rector & Visitors of Univ. of Va., 515
U.S. 819, 829 (1995); Cornelius, 473 U.S. at 806)); City
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of Ogden, 297 F.3d at 1002 n.4 ("A ‘limited public
forum' is a subset of the nonpublic forum
classification."); Callaghan, 130 F.3d at 914 ("In more
recent cases ... the Court has used the term ‘limited
public forum' to describe a type of nonpublic forum");
see also Child Evangelism Fellowship of Md., Inc. v.
Montgomery County Pub. Schs., 457 F.3d 376, 382 n.3
(4th Cir. 2006) (surveying conflicting views among the
circuits). In the present cases, the city governments
have not allowed the kind of "general access" or
"indiscriminate use" of park property that is a
hallmark of a designated public forum. Summum uv.
Callaghan, 130 F.3d 906, 915 n.13 (10th Cir. 1997)
(citing Cornelius, 473 U.S. at 803; Perry, 460 U.S. at
47). Instead, they have "create[d] a channel for a
specific or limited type of expression where one did not
previously exist," Child Evangelism Fellowship, 457
F.3d at 382, and have thus established limited public
fora. As discussed supra, the right to install permanent
monuments did not previously exist in these parks,
and in these cases the cities have allowed only
"selective access to some speakers or some types of
speech in a nonpublic forum." Callaghan, 130 F.3d at
916. Here, the cities have permitted a few monuments
to be erected for specific purposes -- in the case of
Pleasant Grove, to memorialize the city's history, and
in the case of Duchesne, to honor service groups.
Having created limited public fora, the cities may
make reasonable content-based, but viewpoint-neutral,
decisions as to who may install monuments in the
parks.’ Cornelius, 473 U.S. at 806.
*By contrast, when the government itself speaks, it may
discriminate as to both content and viewpoint. Rosenberger, 515
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There are some indications that the cities engaged
in impermissible viewpoint discrimination by denying
Summum access to the limited public fora, and the
need for further briefing and argument on this point is
one reason why en banc proceedings are necessary.
More importantly, however, the panel has given an
unnatural reading to the traditional public forum
doctrine, and binds the hands of local governments as
they shape the permanent character of their public
spaces. Although these governments may enact time,
place, and manner restrictions that will give them
some control over monuments in their parks, they now
must proceed on the basis of the panel's faulty legal
reasoning. More troubling is that such restrictions will
undoubtedly be challenged in court and reviewed
under a strict scrutiny standard. The panel decision
forces cities to choose between banning monuments
entirely, or engaging in costly litigation where the
constitutional deck is stacked against them. Because
I believe the panel's legal conclusions are incorrect,
and that its decisions will impose unreasonable
burdens on local governments in this circuit, | would
grant rehearing en banc.
U.S. at 833.
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McCONNELL, J., joined by GORSUCH, J., dissenting
from denial of rehearing en banc.
These opinions hold that managers of city parks
may not make reasonable, content-based judgments
regarding whether to allow the erection of
privately-donated monuments in their parks. If they
allow one private party to donate a monument or other
permanent structure, judging it appropriate to the
park, they must allow everyone else to do the same,
with no discretion as to content -- unless their reasons
for refusal rise to the level of "compelling" interests.
See Summum v. Duchesne City, 482 F.3d 1263, 1274
(10th Cir. 2007) (a "constitutional right exists to erect
a permanent structure on public property ... when the
government allows some groups to erect permanent
displays, but denies other groups the same privilege");
Summum v. Pleasant Grove City, 483 F.3d 1044, 1054
(10th Cir. 2007) (the city "could ban all permanent
displays of an expressive nature by private
individuals" but may not exclude a monument based
on its content unless the _ restriction serves
"compelling" interests and is "narrowly tailored to
achieve its stated interests"). This means that Central
Park in New York, which contains the privately
donated Alice in Wonderland statute, must now allow
other persons to erect Summum's "Seven Aphorisms,"
or whatever else they choose (short of offending a
policy that narrowly serves a_ "compelling"
governmental interest). Every park in the country that
has accepted a VFW memorial is now a public forum
for the erection of permanent fixed monuments; they
must either remove the war memorials or brace
themselves for an influx of clutter.
Significantly, the religious nature of the donated
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monuments is not relevant to the free speech question
(though it would be to an Establishment Clause
challenge). These cases happen to involve Ten
Commandments monuments, but it could work the
other way. Acity that accepted the donation of a statue
honoring a local hero could be forced, under the panel's
rulings, to allow a local religious society to erect a Ten
Commandments monument -- or for that matter,
cross, a nativity scene, a statue of Zeus, or
Confederate flag.
With all due respect to the panel, this conclusion
is unsupported by Supreme Court precedent. None of
the cases cited supports this proposition. By tradition
and precedent, city parks -- as "traditional public
forums" -- must be open to speeches, demonstrations,
and other forms of transitory expression. But neither
the logic nor the language of these Supreme Court
decisions suggests that city parks must be open to the
erection of fixed and permanent monuments
expressing the sentiments of private parties. By their
policies or actions, governments may create designated
public forums with respect to fixed monuments, but --
contrary to these opinions -- the mere status of the
property as a park does not make it so.
It is plain that the cities in these cases did not
create designated public forums for the erection of
permanent monuments in their parks. In the Duchesne
case, the Ten Commandments monument is apparently
the only fixed monument in the park. In Pleasant
Grove, the other permanent structures and
monuments "relate to or commemorate Pleasant
Grove's pioneer history." 483 F.3d at 1047. In neither
case did the city, by word or deed, invite private
citizens to erect monuments of their own choosing in
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these parks. It follows that any messages conveyed by
the monuments they have chosen to display are
"government speech," and there is no "public forum"
for uninhibited private expression.
In Van Orden v. Perry, 545 U.S. 677 (2005), the
Supreme Court considered a_ nearly identical
monument donated by the Fraternal Order of Kagles
to the State of Texas and displayed under analogous
circumstances. Without dissent on this point, the
Court unhesitatingly concluded the monument was a
state display, and applied Establishment Clause
doctrines applicable to government speech. Jd. at 692
(calling the monument "Texas' display"). Various
courts of appeals have reached the same conclusion on
similar facts. ACLU Nebraska Foundation v. City of
Plattsmouth, 419 F.3d 772, 778, 774 (8th Cir. 2005)
(Eagles monument "installed .. . by the City" and
counted as "City's display"); Van Orden v. Perry, 351
Ik 3d 173, 176 (5th Cir. 2003) (Eagles monument
belonged to the state); Adland v. Russ, 307 F.3d 471,
489 (6th Cir. 2002) (donated Eagles monument
constituted state speech in violation of the
Establishment Clause); Indiana Civil Liberties Union
v. O'Bannon, 259 F.3d 766, 770 (7th Cir. 2001) (city's
acceptance of donated Ten Commandments monument
constituted state action in violation of the
Establishment Clause); Books v. City of Elkhart, 235
F.3d 292, 301 (7th Cir. 2000) (city's display of Ten
Commandments monument was state action violating
Establishment Clause). See also Modrovich ov.
Allegheny County, 385 F.3d 397, 399-400 (3d Cir. 2004)
(bronze plaque of Ten Commandments donated by
private party and affixed to courthouse wall
constituted government speech).
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Our own leading precedent on government speech
confirms these holdings.’ Wells v. City and County of
Denver, 257 F.3d 1132 (16th Cir. 2001), involved a
temporary holiday display, which was on municipal
property and co-sponsored by the city and private
businesses; the display included a large sign on city
property thanking private donors for their
contributions to the city's holiday display. The Court
concluded that the message conveyed by this sign was
government speech. The city, we reasoned, chose to
erect the sign for its own purposes, the city controlled
the content of the sign, and it determined when,
where, and how the sign would be displayed. 257 F.3d
at 1141-42. Wells employed a four-part analysis
derived from the Eight Circuit's Knights of the Ku Klux
Klan v. Curators of the Univ. of Mo., 203 F.3d 1085
(8th Cir. 2000), which involved the asserted right of
the Missouri KKK to sponsor a segment of All Things
Considered on National Public Radio.* In both Wells
'To the extent Summum v. Callaghan, 130 F.3d 906 (10th Cir.
1997), and Summum v. City of Ogden, 297 F.3d 995 (10th Cir.
2002), teach the contrary, they should be overruled.
“The factors were:
(1) that "the central purpose of the enhanced
underwriting program is not to promote the views of the
donors;" (2) that the station exercised editorial control
over the content of acknowledgment scripts; (3) that the
literal speaker was a KWMU employee, not a Klan
representative; and (4) that ultimate responsibility for the
contents of the broadcast rested with KWMU, not with
the Klan.
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and Knights, the governmental or private character of
the speech was in doubt because "ownership" could not
be clearly established. Did the holiday decor belong to
the city or to the private donors in Wells? Did the
sponsorship message written by the KKK belong to
that organization or to the public employee who
broadcast it statewide on a state radio station?
The instant cases are easier than Wells, because
ownership of the "speech" in these cases is clear: the
Ten Commandments monument in Duchesne was
donated by the Cole family to the City of Duchesne,
and the Ten Commandments monument in Pleasant
Grove was donated by the Fraternal Order or Eagles to
the City of Pleasant Grove. At the relevant time, the
cities owned the monuments, maintained them, and
had full control over them. But even if ownership were
not clear, the second and fourth prongs of the Wells
test would nonetheless be dispositive: The cities
exercised total "control" over the monuments, 257 F.3d
at 1141, and they bore “ultimate responsibility" for the
monuments’ contents and upkeep. Indeed, because the
cities owned the monuments, they could have removed
them, destroyed them, modified them, remade them, or
(following state law procedures for disposition of public
property) sold them at any time. Indeed, the City of
Duchesne attempted to do just that -- sell the
monument along with the plot of land on which it sits.
See 482 F.3d at 1266-67.° Cf. Serra v. U.S. General
Wells, 257 F.3d at 1141 (quoting Knights of the Ku Klux Klan, 203
F.3d at 1093-94).
3 > .
Indeed, the panel held that Duchesne’s attempted sale of the
monument is controlled by state law governing the disposition of
“public property.” Duchesne, 482 F.3d at 1272.
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Servs. Admin., 847 F.2d 1045, 1049 (2d Cir. 1988)
(holding that when an artist donates or sells a piece of
art to the government for public display, the artist
loses control over the artwork).
The only difference from Wells is that in the
Summum cases, the cities did not design these
monuments. The cities, however, accepted the statues,
treated them as public property, and displayed them
for their own purposes on public land. The cities were
under no obligation to accept the statues, and could
have objected to their content. When they accepted
donation of the monuments and displayed them on
public land, the cities embraced the messages as their
own. Similarly, Duchesne and Pleasant Grove
controlled the placement of the statues, just asin Wells
Denver bore "ultimate responsibility for the content of
the display." 257 F.3d at 1142.
Once we recognize that the monuments constitute
government speech, it becomes clear that the panel's
forum analysis is misguided. Viewpoint- and
sometimes content-neutrality are required when the
government regulates speech in public forums, but the
government's "own speech... is controlled by different
principles." Rosenberger v. Rector and Visitors of the
Univ. of Va., 515 U.S. 819, 834 (1995). Specifically,
"when the State is the speaker, it may make
content-based choices." Jd. at 833. See also Rust v.
Sullivan, 500 U.S. 173, 193 (1991). The government
may adopt whatever message it chooses -- subject, of
course, to other constitutional constraints, such as
those embodied in the Establishment Clause -- and
need not alter its speech to accommodate the views of
private parties. Downs v. Los Angeles Unified Sch.
Dist., 228 F.3d 1003, 1013 (9th Cir. 2000) ("Simply
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because the government opens its mouth to speak does
not give every outside... group a First Amendment
right to play ventriloquist.") In other words, just
because the cities have opted to accept privately
financed permanent monuments does not mean they
must allow other private groups to install monuments
of their own choosing.
Other circuits have reached this conclusion in
similar cases. See Tucker v. City of Fairfield, 398 F.3d
457, 462 (6th Cir. 2005) ("Courts have generally
refused to protect on First Amendment grounds the
placement of objects on public property where the
objects are permanent or otherwise not easily moved.");
Graff v. City of Chicago, 9 F.3d 1309, 1314 (7th Cir.
1993) (en banc) ("even in a public forum there is no
constitutional right to erect a structure"); Lubavitch
Chabad House, Inc. v. Chicago, 917 F.2d 341, 347 (7th
Cir. 1990) ("We are not cognizant of . . . any private
constitutional right to erect a structure on private
property. If there were, our traditional public forums,
such as our public parks, would be cluttered with all
manner of structures.").
This does not mean that the Ten Commandments
monuments in Duchesne and Pleasant Grove are
immune to First Amendment challenge. Rather, as
government speech, they may be challenged by
appropriate plaintiffs under the Establishment Clause,
as applied to the States through the Fourteenth
Amendment. Their validity would depend on details of
their context and history, in accordance with the
Supreme Court's recent decisions in McCreary County
v. ACLU, 545 U.S. 844 (2005) and Van Orden v. Perry,
545 U.S. 677 (2005). We have no occasion here to
speculate on the outcome of any such litigation.
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The panels’ decisions in these cases, however, are
incorrect as a matter of doctrine and troublesome as a
matter of practice. I realize that en banc proceedings
are a major investment of time and judicial resources,
and that we cannot en banc every case that errs. But
the error in this case is sufficiently fundamental and
the consequences sufficiently disruptive that the panel
decisions should be corrected.
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TACHA, J., response to dissent from denial of
rehearing en banc.
Throughout my judicial career, I have been loath
to write separately because I firmly believe that an
intermediate court of appeals should speak with as
much clarity and consensus as possible. I reluctantly
take the unprecedented step of responding to the
dissents from the denial of rehearing en banc because,
left unanswered, the dissents could lead a reader to
conclude that these cases present unresolved issues
that are properly raised and appropriately addressed
on these facts. In particular, I write to emphasize that
these cases do not raise novel or unsettled questions
regarding government speech. Nor do the panel
decisions suggest that, when cities display permanent
private speech on public property, they necessarily
open the floodgates to any and all private speech in a
comparable medium. Rather, the decisions follow
well-established First Amendment precedent requiring
that cities regulate private speech in public forums
equally.
Because the opinions contain clear discussions of
the legal authority on which they rely, I need not
respond at length to the allegation that they are
unsupported by Supreme Court precedent. I need only
say that the Supreme Court has never distinguished
between transitory and permanent expression for
purposes of forum analysis. In fact, this distinction, so
crucial to the reasoning of both dissents, lacks the
support of both precedent and logic. If a city allows a
private message to be heard in a public park, why
would the permanent nature of the expression limit
the First Amendment scrutiny we apply?
As Supreme Court precedent makes clear, the type
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of speech does not, and should not, determine the
nature of the forum. See City of Cincinnati v. Discovery
Network, Inc., 507 U.S. 410, 429 (1993) (holding that
city's restriction on permanent commercial newsracks
on public sidewalks (a public forum) was an
impermissible content-based restriction on speech). If
a city wishes to regulate the number of permanent
private displays in a public forum, it may do so
through reasonable content-neutral regulations
governing the time, manner, or place of such speech.
See id. at 429-30 ("It is the absence of a neutral
justification for its selective ban on newsracks that
prevents the city from defending its newsrack policy as
content neutral."); see also Capitol Square Review &
Advisory Bd. v. Pinette, 515 U.S. 753, 761 (1995)
(noting that a reasonable content-neutral ban on all
unattended private displays in public forum would
likely be constitutional, but a regulation based on
content must be "necessary, and narrowly drawn, to
serve a compelling state interest").'
‘Contrary to Judge Lucero's dissent, the description of the
forum as "permanent monuments in a city park" does not change
the nature of the forum from a traditional public forum to some
kind of limited or nonpublic forum. To focus solely on the
monuments (i.e., the form of speech) and ignore the underlying
property would be a distortion of Supreme Court precedent, as
explained above. Furthermore, the conclusion that permanent
speech is more limited than transitory speech defies logic. Like
temporary signs and demonstrations, permanent displays most
certainly encompass the government property; indeed, permanent
monuments are physically attached to and - |ways present on the
property. Unlike the speaker in Perry Education Ass'n v. Perry
Local Educators’ Ass'n, 460 U.S. 37 (1983), who sought access to
teachers’ mailboxes, Summum did not seek access to "a forum
within the confines of the government property," Cornelius v.
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Judge McConnell's dissent would have us ignore
these well-established forum principles when the
government does not "by word or deed" create a
designated public forum for permanent private
expression. Dissent at 3. In this view, if the
government has not created a designated public forum,
its acceptance alone turns private speech into
government speech. More important, under this
approach, government acceptance of the physical
medium of speech, not the message, is sufficient. This
approach is an unprecedented, and dangerous,
extension of the government speech doctrine. To make
government ownership of the physical vehicle for the
speech a threshold question would turn essentially all
government-funded speech into government speech.
But this would be an absurd result. No one thinks The
Great Gatsby is government speech just because a
public school provides its students with the text. This
is because the speech conveyed by the physical text
remains private speech regardless of government
ownership.
NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 801 (1985):
rather, it sought permanent access to the physical property itself.
Thus, although the relevant forum in these cases is "permanent
monuments in a city park," the access sought is not the kind of
limited access that allows for a more narrow definition of the
forum. This ts true even if we accept the view that a speaker does
not have a constitutional right to erect a permanent display in a
public forum. Because the cities had already permitted the
permanent display of a private message, the only question
properly before the panel was whether the cities could exclude
other permanent private speech on the basis of content, that is,
whether they could constitutionally discriminate among private
speakers in a public forum
21h
Although:a public school is engaging in speech
activity when it selects the text, its ability to do so is
based on a different line of Supreme Court cases
recognizing the government's ability to make
content-based judgments when it acts in particular
roles (e.g., educator, librarian, broadcaster, and patron
of the arts). We note this distinction in both opinions.
Summum v. Pleasant Grove City, 483 F.3d 1044, 1052
n.4 (10th Cir. 2007); Summum v. Duchesne City, 482
F.3d 12638, 1269 n.2 (10th Cir. 2007).° In light of this
precedent, the City of New York, acting as a patron of
the arts, need not worry about having to erect all
manner of structures based on the installation of Alice
in Wonderland and other works of art in Central Park.
We cannot, however, extend the reasoning of these
Supreme Court decisions to allow the government to
make content-based decisions concerning all
permanent private speech in a public forum. As the
panel decisions explain, the cities in these two cases
were acting as regulators of private speech and not, for
example, as patrons of the arts.
In short, the government does not speak just
"We cite the following Supreme Court cases in both opinions:
United States v. Am. Library Ass'n, Inc., 539 U.S. 194, 205 (2003)
(plurality opinion) (recognizing that public library staffs may
consider content in making collection decisions); Ark. Educ.
Television Comm'n v. Forbes, 523 U.S. 666, 673 (1998)
(recognizing that broadcasters must "exercise substantial editorial
etion in the selection and_ presentation of their
pee#ramming”"); Nat'l Endowment for the Arts v. Finley, 524 USS.
969, 585 (1998) (holding that the NEA may consider content in
awarding grants as such judgments “are a consequence of the
nature of arts funding"). See Pleasant Grove City, 483 F.3d at 1052
n.4; Duchesne City, 482 F.3d at 1269 n.2.
22h
because it owns the physical object that conveys the
speech. Instead, as the Supreme Court has explained,
the appropriate inquiry is whether the government
controls the content of the speech at issue, that is,
whether the message is a government-crafted message.
See, e.g., Johanns v. Livestock Marketing Ass'n, 544
U.S. 550, 560 (2005) (holding that beef advertising
campaign constituted government speech because the
"message set out in the beef promotions is from
beginning to end the message established by the
Federal! Government"). The four-factor approach to
government speech that we adopted in Wells v. City
and County of Denver, 257 F.3d 1132, 1140-42 (10th
Cir. 2001), reflects the Supreme Court's focus on
whether the message is the government's own. But
contrary to Judge McConnell's dissent, we said nothing
in Wells that suggests our government speech inquiry
turns on the ownership of the physical medium
conveying the speech at issue.’ Indeed, the second
Wells factor cited by the dissent is not about
controlling the physical medium of the speech, but
about controlling the content of that speech. See id. at
1142 (finding that the city exercised editorial control
over the content of the speech). A city's control over a
physical monument does not therefore transform the
message inscribed on the monument into city speech.
If this were true, the government could accept any
private message as its own without subjecting the
*Moreover, contrary to Judge McConnell's dissent, see Dissent
at 4, the city's ownership of the holiday display in Wells was
clearly established. Wells, 257 F.3d at 1139 (noting that, as a
factual matter, "Denver owns each component part of the
display").
23h
message to the political process, a result that would
shield the government from First Amendment scrutiny
and democratic accountability.
This is in fact the result that Judge McConnell's
dissent advocates, and it is most apparent in the
dissent's equation of government endorsement in the
Establishment Clause context with government speech
under the Free Speech Clause. Citing Van Orden v.
Perry, 545 U.S. 677 (2005), the dissent emphasizes
that the Supreme Court has characterized a Ten
Commandments monument under analogous
circumstances as a "state display" for purposes of the
Establishment Clause. See id. at 692 (holding that
"Texas' display of this monument" did not violate the
Establishment Clause). The simplest response to this
observation is that a state's display of a monument is
not necessarily state speech; if the government
displays a private religious message, its display may
be challenged under the Establishment Clause
regardless of whether the government adopted the
monument's message as its own. See Pleasant Grove
City, 483 F.3d at 1047 n.2 (explaining that the
government may violate the Establishment Clause
without directly speaking). Van Orden and the circuit
cases cited by the dissent stand for the simple
proposition that a city's acceptance and display of a
privately donated monument with religious content
may constitute state action violating the
Kistablishment Clause. But none of these cases
supports the proposition that, when the state acts to
accept a monument, it automatically turns the
24h
message that monument conveys into state speech."
On a broader note, because the Establishment and
Free Speech Clauses serve different purposes,
discussions of state action in Establishment Clause
cases are not germane to a determination of when the
government speaks for purposes of the Free Speech
Clause. Indeed, the Supreme Court has analyzed
government speech differently in the context of free
speech, recognizing the differing theoretical
justifications underlying the Establishment and Free
Speech Clauses. In the Establishment Clause context,
government speech favoring or disfavoring religion is
a concern because of the effect it may have on
individual members of the political community: "The
Establishment Clause prohibits government from
making adherence to a religion relevant in any way to
a person's standing in the political community.” Lynch
v. Donnelly, 465 U.S. 668, 687 (1984) (O'Connor, J.,
concurring). Indeed, in deciding that a student-led
"invocation" permitted by school policy could "not
properly [be] characterized as 'private speech™ under
the Establishment Clause, the Supreme Court focused
explicitly on the message that government sponsorship
sends members of the community: "School sponsorship
of a religious message is impermissible because it
sends the ancillary message to members of the
“In fact, one case cited in Judge McConnel!'s dissent contains
language specifically rejecting this proposition. Modrovich v.
Allegheny County, 385 F.3d 397, 410-11 (3d Cir. 2004) ("The fact
that government buildings continue to preserve artifacts of [the
country's religious] uistory does not mean that they necessarily
support or endorse the particular messages contained in those
artifacts.").
25h
audience who are nonadherents that they are
outsiders, not full members of the political community,
and an accompanying message to adherents that they
are insiders, favored members of the _ political
community.” Santa Fe Indep. Sch. Dist. v. Doe, 530
U.S. 290, 309-10 (2000) (quotation omitted). In other
words, the government's sponsorship of religion sends
an impermissible "ancillary message" that renders the
speech not entirely private.
The same concerns do not underpin the Free
Speech Clause. Although individuals’ may
constitutionally challenge government sponsorship or
endorsement of religion, they generally have no
constitutional right to challenge government speech
under the Free Speech Clause. In the free speech
context, the fact that government speech is exempt
from constitutional challenge is justified because it is
subject to the political process:
The latitude which may exist for restrictions on
speech where the government's own message 1s
being delivered flows in part from our observation
that, "[w]hen the government speaks, for instance
to promote its own policies or to advance a
particular idea, it is, in the end, accountable to the
electorate and the political process for its
advocacy."
-
Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 541
(2001) (quoting Bd. of Regents of Univ. of Wis. Sys. v.
Southworth, 529 U.S. 217, 235 (2000)). That is, the
latitude that government speech enjoys in the free
speech context is justified by the "political safeguards"
in the democratic process that set government speech
26h
"apart from private messages." Johanns, 544 U.S. at
563 (emphasis added). Thus, its immunity from
constitutional challenge under the Free Speech Clause
does not depend on whether the "reasonable observer,"
familiar to Establishment Clause jurisprudence, would
perceive the government as speaking.
Rather, if citizens object to the government's
message, they may elect new representatives who
"later could espouse some different or contrary
position." Southworth, 529 U.S. at 235. But in order for
citizens to be able to hold the government accountable
for its speech, the government must speak subject to
"traditional political controls [that] ensure responsible
government action." Id. at 229; see also Johanns, 544
U.S. at 560-64 (concluding that promotional program
was subject to adequate safeguards because its
message was prescribed by federal law and the
government supervised and controlled the program
and the contents of its message). The speech in these
cases was not subject to political safeguards; the facts
simply do not implicate government speech because
the cities exercised no control over the content of the
messages.
Thus, in the context of the Free Speech Clause, we
cannot extend the government speech doctrine any
further. To extend government speech to the context
before us would allow the government to discriminate
among private speakers in a public forum by claiming
a preferred message as its own. Moreover, because the
Establishment Clause would apply only to religious
expression, an expanded government speech doctrine
would effectively remove the government's regulation
of permanent non-religious speech from all First
Amendment scrutiny. Such an approach is clearly
27h
contrary to established First Amendment principles.
See Planned Parenthood of S.C., Inc. v. Rose, 361 F.3d
786, 795-96 (4th Cir. 2004) ("The government speech
doctrine was not intended to authorize cloaked
advocacy that allows the State to promote an idea
without being accountable to the political process.").
Because this approach to government speech is
unsupported by Supreme Court precedent and the
purposes of the First Amendment, this Court may not
consider it. And because the relevant law and its
application are clear, en banc consideration is
inappropriate.
li
APPENDIX 1
First Amendment
Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof, or abridging the freedom of speech, or
of the press; or the right of the people peaceably to
assemble, and to petition the Government fora redress
of grievances.
U.S. Const. amend. I.
Fourteenth Amendment, Section I
All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein
they reside. No State shall make or enforce any law
which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
U.S. Const. amend. XIV, § 1.
i)
APPENDIX J
DUCHESNE CITY
ORDINANCE NO. 04-2
AN ORDINANCE ADDING SECTION 7-4-2
TO THE DUCHESNE CITY MUNICIPAL CODE
REGARDING DISPOSAL OF PARCELS OF
REAL PROPERTY AND DEFINING TERMS
WHEREAS, on June 29, 2004 the city council (the
“Council”) of the City of Duchesne (the “City) met in
regular session to consider, among other things, adding
Chapter 4-2, to Section 7 of the Duchesne Municipal
Code regarding disposal of parcels of real property and
defining terms; and
WHEREAS, in Toone, et. al. v. Weber County, et.
al., 2002 UT 103 (2003) the court held that counties
(applicable to municipalities by analysis) must submit
proposed sales of real estate to their planning
commission for review and recommendation or the sale
is void; and
WHEREAS, H.B. 122, second substitute (codified
in part as Utah Code Ann. § 10-8-2, as it applies to
municipalities), eliminates the Joone requirement and
requires that before a municipality may dispose of
significant parcels of real property, the municipality
shall provide reasonable notice of the proposed
disposition and allow an opportunity for public
comment. Further, it requires each municipality, by
ordinance, to define what constitutes significant
parcels of real property and reasonable notice; and
WHEREAS, the Council desires to comply with
H.B. 122, second substitute, by adopting definitions of
2j
“a significant parcel of real property,” “reasonable
notice,” and helpful definition of “disposition”; and
WHEREAS, after careful consideration, the
Council has determined that it is in the best interest of
the health, safety and welfare of the citizens of the
City to add Chapter 4-2 to Section 7 to the Duchesne
Municipal Code regarding disposal of parcels of real
property,” and defining terms.
NOW, THEREFORE, BE IT ORDAINED by the
Council that the following be added as Section 7-4-2 of
the Duchesne Municipal Code:
SECTION:
7-4-2: DISPOSAL OF PARCELS OF REAL
PROPERTY
CHAPTER 4:
MUNICIPAL PROPERTY; USE AND CONTROL
SECTION:
-4-2A Notice Required
.4.2B Public Comment
-4-2C Definitions
A. NOTICE REQUIRED: If the property that is
declared surplus pursuant to section 7-4-2C is a
significant parcel of real property as defined in this
section, then the City shall provide reasonable notice,
as defined below, of the proposed disposition at least
14 days before the proposed disposition, to provide the
public an opportunity for comment on the proposed
disposition.
3}
B. PUBLIC COMMENT: If the City receives public
comment on the proposed disposition, the City
Recorder shall forward copies of such public comment
to the city council. Thereafter, the city council may
rescind its declaration of surplus property, direct the
mayor to proceed with the sale, or impose such
additional terms and conditions as the city council may
adopt.
If the City does not receive public comment on the
proposed disposition, the mayor may proceed with the
sale after satisfying all of the other terms and
conditions applicable to the disposition.
C. DEFINITIONS: For purposes of this section,
“disposition” shall mean to transfer control of city
owned property to another by any means including,
but not limited to, sale, lease or other type of
conveyance of such property.
1. For purposes of this section “reasonable notice”
shall mean posting notice of the proposed disposition
in at least three public places within the city and
publishing notice of the proposed disposition in a
newspaper of general circulation in the city.
2. For purposes of this section, “significant parce]
of real property” shall mean a parcel of real property
owned by the city with a reasonable vaiue equal to or
greater than $100,000 or reasonable yearly rental
value equal to or greater than $15,000.
If any provision of this Ordinance is held by a
court of competent jurisdiction to be unconstitutional
or for any reason invalid, such ruling or decision shall
not affect the validity of the remaining provisions,
which are adopted separately and independently and
shall remain in full force and effect.
This Ordinance, assigned Ordinance No. 04-2 shall
4)
take effect as soon as it shall be published or posted as
required by law, deposited and recorded in the office of
the City Recorder, and accepted as required herein.
PASSED AND APPROVED this 29" day of June,
2004.
/s/ haat
Clinton Park, Mayor
ATTEST:
/s/
Diane Miller, City Recorder
lk
APPENDIX K
ORDINANCE NO. 04-4
An Ordinance of the Duchesne City Council,
Duchesne County, Utah
Vacating a Portion of Roy Park
and Providing an Effective Date
WHEREAS, in a portion of Roy Park there is
currently displayed a certain stone monument donated
to the City of Duchesne in loving memory of Irvin A.
Cole by his wife, Leona Cole, and his daughters, Rae
Donna, Lou Ann, and Ro Jean, which monument
contains, among other things, a version of the Ten
Commandments; and
WHEREAS, the presence of said monument has
led to the filing of a lawsuit against the City which
lawsuit claims that by the City’s display of the Cole
family’s memorial, the City has created a public forum
or limited public forum requiring the City to set aside
portions of Roy Park for the display of memorials,
monuments, and other donations from private
individuals and organizations; and
WHEREAS, the City never intended to, did not,
and does not wish to open Roy Park or any portions
thereof as a forum for the display of memorials,
monuments or other donations from _ private
individuals and organizations; but
WHEREAS, the City does not wish to show
disrespect or ingratitude to the Cole family,
particularly in light of the many years of civic service
rendered to our community by the late Irvin and Leona
2k
Cole by removing the monument in question from the
place it has occupied since 1979; and
WHEREAS, the City Council has determined that
that portion of Roy Park on which the Cole monument
stands is no longer needed for public purposes; and
WHEREAS, the City Council has determined that
the sale of said portion of Roy Park will further the
important public interests of terminating potentially
costly litigation and avoiding future litigation by
permanently closing Roy Park as a forum for such
private displays;
NOW THEREFORE, Be It Ordained by the City
Council of Duchesne, Duchesne County, Utah, as
follows:
1. That the portion of Roy Park described in
Exhibit “A” incorporated herein shall be vacated.
2. That the Mayor is authorized to execute all
documents related to vacating the described portion of
Roy Park and to the selling of same.
3. All ordinances, resolutions or policies in conflict
herewith are repealed.
4. This ordinance shall take effect immediately
upon passage.
PASSED this 29" day of June, 2004.
/s/
Clinton Park, Mayor
ATTEST:
/s/ E
Diane Miller, City Recorder
[Description of monument parcel omitted]
I]
APPENDIX L
RESOLUTION No. 04-3
A Resolution of the Duchesne City Council,
Duchesne County, Utah
Authorizing the Mayor to Execute Quit Claim Deeds
to the
Portion of Roy Park Which was Vacated by the City.
WHEREAS, the Duchesne City Council approved
Ordinance No. 04-4, vacating a portion of Roy Park;
and
WHEREAS, Section 10-8-1 Utah Code Annotated,
1953 (as amended) grants the city council the power to
control the finances and property of the corporation;
and
WHEREAS, Section 10-8-2 Utah Code Annotated,
1953 (as amended) grants the city council the power to
purchase, receive, hold, sell, lease, convey, and dispose
of real and personal property for the benefit of the city;
and
WHEREAS, it is necessary to dispose of certain
parcels of real property as a result of the vacation of a
portion of a public park; and
WHEREAS, the Duchesne City Council has
determined that it is in the best interests of the
citizens of the city to dispose of said property; and
NOW THEREFORE, Be It Resolved by the City
Council of Duchesne, Duchesne County, Utah as
follows:
1. The Mayor or his designee is hereby authorized
21
to execute Quit Claim Deeds in favor of Rae Donna
Jones, Lou Ann Larson and RoJean Rowley for the
subject property or properties more particularly
described in the vacation plat attached as Exhibit “A”
and incorporated herein.
THE RESOLUTION APPROVED and adopted this
29" day of June, 2004, by the City Council of Duchese,
Duchesne County, Utah.
/s/
Clinton Park, Mayor
ATTEST:
/s/
Diane Miller, City Recorder
[Description of monument parcel omitted]
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.