Joint Appendix — Capitol SquareReview and Advisory Bd. v. Pinette

Supreme Court brief1995

Ask Donna

What actually matters in this document.

Text

94-780

IN THE ay

SUPREME COURT OF THE UNITED STATES

October Term, 1994

Capitol Square Review and Advisory Board,

Ronald T. Keller, Daniel Shellenbarger, and Ohio

Senator Richard H. Finan,

Petitioners,

Vv.

Vincent J. Pinette, Donnie A. Carr, and

Knights of the Ku Klux Klan,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

JOINT APPENDIX

BETTY D. MONTGOMERY

Ohio Attorney General BENSON A. WOLMAN*

MICHAEL J. RENNER* DAVID GOLDBERGER

Chief Counsel 3600 Olentangy River Rd

CHRISTOPHER S. COOK Building 501

ANDREW S. BERGMAN Columbus, OH 43214-3913

SIMON B. KARAS (614) 459-4140

ANDREW I. SUTTER

Assistant Attorneys General Counsel for Respondents

State Office Tower

30 East Broad Street, 17th Floor

Columbus, Ohio 43215-3428

(614) 466-5026

Counsel for Petitioners *Counsel of Record

PETITION FOR CERTIORARI FILED OCTOBER 24, 1994

CERTIORARI GRANTED JANUARY 13, 1995

TABLE OF CONTENTS

PAGE

Relevant Court Docket eg Oy he l

United States District Court For The

Southern District of Ohio - Eastern Division... . . l

United States Court of Appeals For

The Sixth Cirevit ..................... 7

Plaintiffs’ Complaint (with exhibits)............. 20

Plaintiffs’ Motion For Temporary Restraining Order

And Preliminary Injunction. ............... 51

Affidavit of Rabbi Harold J. Berman

(December 17, wig, AE Cat re eee eae 53

Supplemental Exhibit 10}

(Reprinted in appendix to brief in Opposition to writ

of certiorari ("brief in opp.") p. RA 23) ........ 56

Supplemental Exhibit 102

(Reprinted in brief in opp. p. RA 24) ......... 57

Supplemental Exhibit 103

(Reprinted in brief in opp. p. RA 28) ......... 58

Supplemental Exhibit 104 ......0000000~20~2~2C~C*™ 59

Supplemental Exhibit 105

(Reprinted in brief in opp. p. RA 31) ......... 60

Supplemental Exhibit 106

(Reprinted in brief in opp. p. RA 32) ......... 6]

Supplemental Exhibit 107 ..... A GAs er 62

TABLE OF CONTENTS (Cont.)

PAGE

Supplemental Exhibit 106 .......cccccceeees 63

Supplemental Exhibit 109 .......-2cccecce00. 64

Supplemental Exist 110 ... . ccc ccc csccens 65

Plaintiffs’ Verified Amended Complaint

Ge SE kkk a es a eee ee 66

Stipulations of Fact in the District Court

a eo ee ae 94

Defendants’ Exhibit C

(Reprinted in brief in opp. p. RA 17) ........ 128

Defendants’ Exhibit D

(Reprinted in brief in opp. p. RA 19) ........ 129

Affidavit of Dr. Dennis Anderson

CS Te Se ht RE we os 130

Excerpt of Proceedings Before

United States District Court Judge

James L. Graham (December 20, 1993) ....... 134

Report And Recommendation of

Administrative Hearing Examiner

{Reprinted in appendix to petition for a writ

of certiorari ("petition") p. A27] .......... 176

TABLE OF CONTENTS (Cont.)

PAGE

Opinion and Order of District Court

[Reprinted in petition p. A re 177

cc 178

Notice of Appeal ...................... 179

Excerpt of Proceedings Before

United States District Court Judge

James L. Graham (January 3, 1994) ......... 181

Plaintiffs Exhibit 33

(Reprinted in brief in opp. OMe 88). ea ek 19]

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Proceedings include all events. TERMED

2:93cvll1162 Pinette, et al v. Capitol Sq Review Bd, et al

12/15/93 1

12/15/93 2

12/15/93 3

12/17/93 4

12/17/93 5

12/17/93 6

12/17/93 7

REFER

COMPLAINT (Summons issued) (referred

to Mag. Judge Mark R. Abel) () (br)

ORDER by Judge James L. Graham; In-court

hearing on the request for TRO & PI 9:00

12/20/93 Parties to file briefs by 12-17-93 at

3:00 pm. (cc: all counsel) ( no pgs: 1) (br)

[Entry date 12/16/93]

ORDER by Judge James L. Graham a hearing

on the request for tro and pl is set for 12-20-

93 at 9:00. (cc: all counsel) ( no pgs: 1)

(br) [Entry date 12/16/93]

MOTION by plaintiff for temporary

restraining order and preliminary injunction (

) (br)

AFFIDAVIT/Verification of Complaint by

Vincent Pinette regarding complaint [1-1] (

) (br)

RESPONSE by defendant to motion for

temporary restraining order and preliminary

injunction [4-1] () (br)

STIPULATIONS of Fact between parties (

) (br)

12/20/93 8 Verified AMENDED COMPLAINT by

12/20/93 9

12/20/93

12/21/93

plaintiff () (br)

CIVIL MINUTES: Proceeding before Judge

James L. Graham on the motion for TRO and

Prel INj. An order will issued after 9:00 a.m.

on the 21 of December if the State of Ohio

has not made a final decision on the

application of the KKK to erect a cross at the

State House for the holiday season. Pat Shaw

and Joan Koenig reporting. (cc: all counsel)

(no pgs: 1) (br) [Entry date 12/21/93]

Additional memorandum by defendant re:

pending adm. hearing ( ) (br) [Entry date

12/21/93]

TRANSCRIPT filed by defendants of the 12-

17-93 hearing before the hearing officer (br)

[Entry date 12/21/93]

CERTIFICATE of Service by defendant ( )

(br) [Entry date 12/21/93]

Supplemental memorandum by defendant to

motion for temporary restraining order and

preliminary injunction [4-1] () (br) [Entry

date 12/21/93]

ORDER by Judge James L. Graham granting

motion for temporary restraining order and

preliminary injunction [4-1] allowing the pltf.

to erect a cross on the State House grounds

for the holiday season. (cc" all counsel)

(no. pgs: 15) (br)

12/21/93 14 JUDGMENT ENTERED as to #13: (cc: all

counsel) (no pgs: 2) (br)

Docket as of February 4, 1994 1:09 pm Page 3

Proceedings include all events. TERMED

2:93cvl1 162

REFER

12/21/93 15

12/21/93 16

12/21/93 --

12/21/93 17

Pinette, et al v. Capitol Sq Review Bd, et al

CIVIL MINUTES: Proceeding before Judge

James L. Graham the Court heard discussion

on the advisory board’s decision from bothe

sides. An order was issued, granting the tro

and allowing a latin cross to be erected on the

state house grounds. Joan Koenig reporting.

(cc: all counsel) () (br)

NOTICE OF APPEAL by defendant Capitol

Sq Review Bd, defendant Ronald T. Keller,

defendant Daniel Shellenbarger, defendant

Richard H Finan from Dist. Court decision

[13-1] of 12/21/93 (no pgs: 2) (sm)

APPEAL FEE pd _ in amount of $ 105.00

(Receipt # 122171) (sm)

APPEAL NOTIFICATION issued CA.

(faxed to USCA) (sm)

ORDER by Judge James L. Graham I[n-court

hearing on cts 2,3 and 4 of the complaint set

on 1/3/93 at 9:00 a.m. (cc: all counsel) ( )

(br) [Entry date 12/22/93]

12/22/93

12/27/93

1/3/94 21

1/3/94 22

1/3/94 23

ORDER OF USCA 6th: The motion for a

Stay pending appeal is DENIED. (faxed via

USCA). (no pgs: 2) (sm)

RECEIPT OF USCA APPEAL NUMBER -

Number Assigned: 93-4367 (sm)

ORDER OF USCA 6th: the motion for a Stay

pending appeal is denied. (no pgs: 2) (sm)

CIVIL MINUTES: Proceeding before Judge

James L. Graham hearing held on issues to be

presented and discovery matters to be covered

before the Jan 3, 1994 hearing. Chris Cook

for the Ohio AG, Benson Wolman for

plaintiffs. Court Reporter Pat Shaw. (cc: all

counsel) ( no pgs. 1) (br) [Entry date

12/28/93]

MOTION by intervenor Ohio Civil Rights

Coalition to intervene ( ) (br)

MOTION by amicus curiae Columbus City of

for leave to file brief amicus curiae () (br)

CIVIL MINUTES: Proceeding before Judge

James L. Graham hearing began on counts

2,3, and 4 of the pltf. complaint and granting

the City of Cols. motion for leave to file brief

amicus curiae [22-1], denying Oh Civil Rights

Coalition motion to intervene [21-1], but

allowing them to file a brief amicus curiae.

Court Reporter Joan Koenig. (cc: all

counsel) (no pgs: 1) (br)

1/3/94 24 BRIEF FILED by City of Columbus regarding

motion for leave to file brief amicus curiae

[22-1] () (br)

Docket as of February 4, 1994 1:09 pm

Page 4

Proceedings include all events. TERMED

2:93cvll1162 Pinette, et al v. Capitol Sq Review Bd, et al

REFER

1/3/93 25 RESPONSE by defendant in opposition to the

motion for injunctive relief on counts 2,3 and

4 of the complaint () (br)

1/3/94 -- TRANSCRIPT filed of the 12-20-93

proceedings ( 1 vol) (br)

1/3/94 -- Deposition of Thomas Robb (br)

1/4/94 26 MOTION by plaintiff for attorney fees ( no

pgs: 3) (br)

1/4/94 27 ORDER by Judge James L. Graham the

defendants are ordered to grant a permit for

the 1-15-94 rally, pltf. claim for money

damages is dismissed with prejudice and the

costs of this action are assessed against the

defendants and this case is dismissed (cc: all

counsel) (no pgs: 11) (br) [Entry date

01/05/94]

1/5/94 28 JUDGMENT ENTERED in favor of the

plaintiffs: (cc: all counsel) () (br)

1/18/94 29 SUPPLEMENTAL MOTION by plaintiff for

attorney fees () (br) [Entry date 01/19/94]

1/25/94 30 RESPONSE by defendant to motion for

attorney fees [29-1], motion for attorney fees

[26-1] () (br) [Entry date 01/26/94]

Docket as of February 4, 1994 1:09 pm

Page 5

oe ee re ne TS nee

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GENERAL DOCKET

Sixth Circuit Court of Appeals

93-4367 93-4367

Court of Appeals Docket #: 93-4367

Filed: 12/21/93

Nsuit: 3440 Civil Rights: Other

Pinette, et al v. Capitol Sq Review Bd, et al

Appeal from: Southern District of Ohio at Columbus

Case Type information:

1) Civil

2) private

3) civil rights

Lower court information:

District: 0648-2: 93-01162

Trial Judge: James L. Graham, District Judge

Date Filed: 12/15/93

Date order/judgment: 12/21/93

Date NOA filed: 12/21/93

Fee status: paid

Prior cases:

None

Current cases:

None

Docket as of January 23, 1995 12:12 PM

Page |

93-4367 Pinette, et al v. Capitol Sq Review Bd, et al

VINCENT J. PINETTE

Plaintiff - Appellee

DONNIE A. CARR

Plaintiff - Appellee

Benson A. Wolman

614-459-4140

INTC ret]

David Goldberger

FTS 459-4503

614-459-4140

[COR NTC ret]

Moots Cope & Stanton

3600 Olentangy River Road

Building 501

Columbus, OH 43214-344]

Benson A. Wolman

(See above)

INTC ret]

David Goldberger

(See above)

[COR NTC ret]

KNIGHTS OF THE KU KLUX KLAN,

Ohio Realm Benson A. Wolman

(See above)

Plaintiff - Appellee [COR LD NTC ret}

David Goldberger

(See above)

[COR ret]

Vv.

CAPITOL SQUARE REVIEW AND

ADVISORY BOARD Andrew S. Bergman

614-466-2872

Defendant - Appellant [COR NTC ret]

Office of the Attorney General

of Ohio

30 E. Broad Street

15th Floor State Office Tower

Columbus, OH 43215-3428

Andrew I. Sutter, Asst.

Attorney Gen.

614-466-2872

{COR NTC gvt]

Docket as of January 23, 1995 12:12 PM Page 2

93-4367 Pinette, et al v. Capitol Sq Review Bd, et al

Richard A. Cordray

FTS 466-5087

614-539-1661

RONALD T. KELLER

Defendant - Appellant

DANIEL SHELLENBARGER

Defendant - Appellant

RICHARD H. FINAN, Senator

Defendant - Appellant

[NTC ret]

Office of the Attorney

General of Ohio

30 E. Broad Street

17th Fl. State Office

Tower

Columbus, OH 43215-3428

Andrew S. Bergman

(See above)

[COR NTC ret]

Richard A. Cordray

(See above)

[NTC ret]

Andrew S. Bergman

(See above)

[COR NTC ret]

Richard A. Cordray

(See above)

[NTC ret]

Andrew S. Bergman

(See above)

[COR ret]

Richard A. Cordray

(See above)

[COR LD NTC ret]

Docket as of January 23, 1995 12:12 PM Page 3

93-4367 Pinette, et al v. Capitol Sq. Review Bd, et al

VINCENT J. PINETTE; DONNIE A. CARR; KNIGHTS

OF THE KU KLUX KLAN, Ohio Realm

Plaintiffs - Appellees

Vv.

CAPITOL SQUARE REVIEW AND ADVISORY BOARD;

RONALD T. KELLER; DANIEL SHELLENBARGER;

RICHARD H. FINAN, Senator

Defendants - Appellants

Docket as of January 23, 1995 12:12 PM Page 4

93-4367 Pinette, et al v. Capitol Sq Review Bd, et al

12/21/93 Civil Case Docketed. Notice filed by

Appellant Capitol Sq Review Bad,

Appellant Ronald T. Keller, Appellant

Daniel Shellenbarger, Appellant

Richard H. Finan. Transcript needed:

y (nb)

12/22/93 Appellant MOTION filed for a stay of

injunction pending appeal [878026-1],

with memorandum in support attached

12/22/93

12/23/93

to the motion. Motion filed by

Richard A. Cordray for Appellant

Richard H. Finan, Appellant Daniel

Shellenbarger, Appellant Ronald T.

Keller, Appellant Capitol Sq Review

Bd. Certificate of service date

12/22/93 [93-4367] (mmd)

Appellee RESPONSE in opposition

filed regarding a motion for

miscellaneous _ relief [878026- 1];

previously filed by Richard A.

Cordray. Response from Benson A.

Wolman for Appellee Knights of

KKK, Appellee Donie A. Carr,

Appellee Vincent J. Pinette.

Certificate of service date 12/22/93

[93-4367] (mmd)

ORDER filed denying motion for a

Stay pending appeal filed by Richard

A. Cordray. {93-4367]. Cornelia G.

Kennedy, Circuit Judge, David A.

Nelson, Circuit Judge, Albert J.

Engel, Senior Judge. (tmb)

LETTER SENT TO district court by

tmb sending a certified copy of order

filed 12/22/93. [93-4367] (tmb)

U.S. Supreme Court order filed

deferring to the judgment of the Court

of Appeals and denying the stay of an

injunction entered by the district court

and upheld by the Court of Appeals.

Filed in the Supreme Court on

1/5/94

1/6/94

1/7/94

12/23/93. (bb)

TRANSCRIPT ORDER FORM filed

by Richard A. Cordray for Appellant

Richard H. Finan, Appellant Daniel

Shellenbarger, Appellant Ronald T.

Keller, Appellant Capitol Sq Review

Bd: Transcript on file in district

court.

[93-4367] [884192-1]

APPEARANCE filed by Attorneys C.

Cook, A. Sutter, A. Bergman, and R.

Cordray for Appellant Richard H.

Finan, Appellant Daniel Shellenbarger,

Appellant Ronald T. Keller, Appellant

Capitol Sq Review Bd. [93-4367]

(vf)

PRE-ARGUMENT STATEMENT

filed by Richard A. Cordray for

Appellant Richard H. Finan, Appellant

Daniel Shellenbarger, Appellant

Ronald T. Keller, Appellant Capitol

Sq Review Bd [93-4367] (vf)

BRIEFING LETTER sent setting

briefing schedule: appellant brief due

2/22/94; appellee brief due 3/28/94;

appendix due 4/21/94 [93-4367].

(NB)

Docket as of January 23, 1995 12:12 PM Page 5

93-4367 Pinette, et al v. Capitol Sq Review Bd, et al

1/794

1/25/94

2/1/94

2/15/94

APPEARANCE filed by Attorneys D.

Goldberger and B. Wolman for

Appellee Knights of KKK, Appellee

Donnie A. Carr, Appellee Vincent J.

Pinette [93-4367] (vf)

Briefing Letter Sent by

CONFERENCE ATTORNEY'S

OFFICE resetting briefing schedule:

appellant brief due now 2/8/94;

appellee brief now due 3/14/94;

appendix now due 3/28/94 [93-4367].

THIS IS AN EXPEDITED

SCHEDULE AGREED TO BE

COUNSEL. (trm)

Pre-Argument Conference work

complete. (wjr)

BRIEF filed by Richard A. Cordray

for Appellants Richard H. Finan,

Daniel Shellenbarger, Ronald T.

Keller, Capitol Sq Review Bd.

Copies: 5. Certificate of service date

2/8/94 [93-4367] (teb)

Request to require oral argument filed

by Richarad A. Cordray for Appellants

Richard H. Finan, Daniel

Shellenbarger, Ronald T. Keller,

Capitol Sq. Reveiw Bd. [93-4367]

(teb)

Appellant MOTION filed to expedite

”

oral argument with memo in support.

Motion filed by Richard A. Cordray

for Appellant Richard H. Finan,

Appellant Daniel Shellenbarger,

Appellant Ronald T. Keller, Appellant

Capitol Sq Review Bd. Certificate of

service date 2/8/94 [93-4367] (mmd)

2/23/94 ORDER filed granting motion to

expedite oral argument [904311-1]

filed by Richard A. Cordray. The

appeal shall be scheduled at the

earliest practicable date. [93-4367]

(tmb)

3/14/94 Appellee MOTION filed to extend

time to file brief. Motion filed by

Benson A. Wolman for Appellee

Donnie A. Carr, Appellee Vincent J.

Pinette, Appellee Knights of KKK.

Certificate of service date 3/11/94.

[93-4367] (mmd)

3/14/94 LETTER SENT by mmd granting

motion to extend briefing [917127-1]

filed by Benson A. Wolman [93-4367]

resetting briefing schedule: appellee

brief now due 3/21/94; appendix now

due 4/11/94 [93-4367] (mmd)

3/22/94 BRIEF filed by Benson A. Wolman

for Appellees Donnie A. Carr, Vincent

J. Pinette, Knights of KKK. Copies:

10. Certificate of service date 3/21/94

[93-4367] (teb)

3/22/94 Request to require oral argument filed

by Benson A. Wolman for Appellees

Donnie A. Carr, Vincent J. Pinette,

Knights of KKK [93-4367] (teb)

Docket as of January 23, 1995 12:12 PM Page 6

93-4367 Pinette, et al v. Capitol Sq Review Bd, et al

3/30/94

SUBSTITUTE BRIEF TENDERED.

Received from Benson A. Wolman for

Appellees Donnie A. Carr, Vincent J.

Pinette, Knights of KKK. [93-4367]

Copies: 10. Certificate of service

date 3/21/94 Corrections to be made:

motion pending for leave to file

substitute brief. (teb)

Appellee MOTION filed to file

substitute brief. Motion filed by

Benson A. Wolman for Appellees

Donnie A. Carr, Vincent J. Pinette,

Knights of KKK. Certificate of

service date 3/29/94. [93-4367]

(teb)

BRIEF filed by Benson A. Wolman

for Appellees Donnie A. Carr, Vincent

J. Pinette, Knights of KKK. Copies:

10. Certificate of service date 3/21/94

[93-4367] (teb)

4/1/94

4/6/94

4/8/94

4/13/94

4/15/94

Oral argument date set for 6/21/94 in

court room 836. Notice of argument

sent to counsel. [93-4367] (paw)

REPLY BRIEF filed by Richard A.

Cordray for Appellants Richard H.

Finan, Daniel Shellenbarger, Ronald

T. Keller, Capitol Sq Review Bd.

Copies: 6. Certificate of service date

4/4/94 [93-4367] (teb)

Appellant MOTION filed to extend

time to file appendix. Motion filed by

Richard A. Cordray for Appellant

Richard H. Finan, Appellant Daniel

Shellenbarger, Appellant Ronald T.

Keller, Appellant Capitol Sq Review

Bd. Certificate of service date 4/7/94

[93-4367] (mmd)

LETTER SENT by mmd granting

motion to extend time to file appendix

[932543-1] filed by Richard A.

Cordray [93-4367] per hearing panel

on 4/11/94 resetting briefing schedule:

appendix now due 4/15/94 [93-4367]

(mmd)

CERTIFIED RECORD | filed.

Volumes include: 3 Tr; 2 Dep; |!

Pl. [93-4367] (hrm)

APPENDIX filed by Richard A.

Cordray for Appellants. Copies: 5.

Certificate of service date 4/14/94

[93-4367] (pje)

5/25/94

6/21/94

RULING granting motion to file

substitute brief [927616-1] filed by

Benson A. Wolman [93-4367]

(LG/bb per hearing panel, 5/24/94;

counsel notified by mail 5/25/94.

(bb)

ADDITIONAL CITATION filed by

Benson A. Wolman for Appellee

Donnie A. Carr, Appellee Vincent J.

Pinette, Appellee Knights of KKK.

Certificate of service date 6/20/94

[93-4367] (mmd)

Docket as of January 23, 1995 12:12 PM Page 7

93-4367 Pinette, et al v. Capitol Sq Review Bd, et al

6/21/94

7/25/94

CLAUSE ARGUED on 6/21/94 by

Richard A. Cordray for Appellant

Richard H. Finan, Appellant Daniel

Shellenbarger, Appellant Ronald T.

Keller, Appellant Capitol Sq Review

Bd, Benson A. Wolman for Appellee

Donnie A. Carr, Appellee Vincent J.

Pinette, Appellee Knights of KKK

before Judges Jones, Ryan,

Krupansky. [93-4367] (me)

OPINION filed: AFFIRMED;

decision for publication pursuant to

local rule 24 [93-4367]. Nathaniel R.

Jones, Circuit Judge, James L. Ryan,

7/25/94

8/16/94

8/17/94

11/7/94

1/19/95

Authoring Judge, Robert B.

Krupansky, Senior Judge. (tmb)

JUDGEMENT: AFFIRMED. (tmb)

MANDATE ISSUED with no cost

taxed [93-4367] (vf)

CERTIFIED RECORD RETURNED

to lower court at the end of appellate

proceedings. [93-4367]. Volumes

included: 1 Pl; 3 Tr; 2 Dep;.

(tt)

U.S. Supreme Court notice filed

regarding petition for writ of certiorari

filed by Appellant Capitoi Sq Review

Bd. Filed in the Supreme Court on

10/24/94, Supreme Ct. case number:

94-780. [93-4367] (swh)

U.S. Supreme Court order filed

granting petition for writ of certiorari

[1040663-1] filed by Capitol Sq

Review Bd., et al. [93-4367{[|[].

Filed in the Supreme Court on

1/13/95. (swh)

Docket as of January 23, 1995 12:12 PM Page 8

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Vincent J. Pinette

P.O. Box 620007

Cleveland, Ohio 44102

and

Donnie A. Carr

P.O. Box 28705

Columbus, Ohio 43228-0705

and

Knights of the Ku Klux

Klan (Ohio Realm)

P.O. Box 620007

Cleveland, Ohio 44102,

Plaintiffs,

v. Case No. C2-93-1162

Capitol Square Review and

Advisory Board : JUDGE GRAHAM

The Statehouse

Columbus, Ohio 43215

MAGISTRATE JUDGE

and > ABEL

Ronald T. Keller,

Daniel Shellenbarger, and

Richard H. Finan,

c/o The Statehouse

Columbus, Ohio 43215,

individually and in their

official capacities,

Defendants.

l. This is an action for declaratory and injunctive

relief and for damages brought by members of the Ku Klux

Klan because the Capitol Square Review and Advisory Board

and its members and employees have rejected the application

of the Plaintiffs to erect a free-standing, privately owned

cross as part of the 1993 holiday display on the Statehouse

grounds. In addition, the suit seeks to void a bill from

public officials for security services related to a prior use of

the Statehouse grounds and to require the Defendants to

approve a permit to hold a January rally on Capitol Square.

The action seeks declaratory and injunctive relief and

damages for these deprivations and for a pattern of denial of

rights of the Plaintiffs.

Il. Jurisdiction

Z The claims for relief and causes of action

alleged herein arise under 42 U.S.C.§ 1983, the First and

Fourteenth Amendments and Article I, Section 10 of the

Constitution of the United States.

3. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. Sections 1331 and 1343, 42 U.S.C.

Section 1983.

4. Declaratory and injunctive relief is sought

pursuant to 28 U.S.C. §§ 2201 and 2202, and 42 U.S.C. §

1983.

Ill. Venue

m This action properly lies in the Southern

District of Ohio, Eastern Division, pursuant to 28 U.S.C. §

1391(b), because the critical Defendants are found in this

judicial district and all Defendants reside in this state and

because a substantial part of the events or omissions, and all

of the property, that are the subject of the action are located

in Franklin County, Ohio.

IV. Parties

6. Plaintiff Vincent J. Pinette is the Chief

Executive Officer of the Knights of the Ku Klux Klan (Ohio

Realm); Plaintiff Donnie A. Carr is the Unit Coordinator for

Columbus, Ohio of the Knights of the Ku Klux Klan (Ohio

Realm); and, the Knights of the Ku Klux Klan (Ohio Realm)

is an unincorporated association whose members reside in the

State of Ohio.

7. Plaintiff Pinette resides in Cuyahoga County,

Ohio; Plaintiff Carr resides in Franklin County, Ohio; and

Plaintiff Knights of the Ku Klux Klan (Ohio Realm) is

headquartered in Cuyahoga County, Ohio.

8. Defendant Capitol Square Review and

Advisory Board is the state board chartered under Ohio

Revised Code Section 123.022 that controls the land and

facilities which comprise the Statehouse and its environs in

downtown Columbus.

9. Defendant Keller is the Executive Director of

— ee

the Capitol Square Review and Advisory Board; Defendant

Shellenbarger is the spokesperson for the board; and

Defendant Finan, a state senator, is the chairperson of the

board. They are sued in their official and personal

Capacities.

10. The Board is situated in Franklin County,

Ohio; Defendants Keller and Shellenbarger reside in Franklin

County, Ohio; and Defendant Finan resides in Hamilton

County, Ohio.

11. | The various acts and omissions alleged herein

were engaged in and carried out by, between and among the

individual Defendants acting personally and while said

Defendants were employed by or acting for the State of

Ohio. All of the actions alleged herein were engaged in and

carried out by, between and among individua! Defendants,

under color of state law.

Vv. _—— Facts

12. For more than a century, Capitol Square has

been a traditional, public forum lIccated in downtown

Columbus. It is the seat of government of the State of Ohio.

It is surrounded on all sides by streets and by public and

private offices and business establishments and places of

accommodation or amusement. Capitol Square traditionally

has been used by office holders, office seekers, non-profit

enterprises, commercial enterprises, and individuals for

speeches, gatherings, and displays.

13. For many years during the period stretching

from approximately Thanksgiving until the new year, Capitol

Square has been adorned with festival lights and a Christmas

tree. In recent years public authorities controlling Capitol

Square have granted the requested permit of the Lubavitcher

sect of the Jewish faith to erect a free-standing Hanukkah

menorah, a nine-branch candelabrum which is the primary

visual symbol of the Jewish holiday of Hanukkah and which

has both religious and secular significance.

14. During the course of the year private persons

and organizations are regularly permitted to gather and to

erect temporary structures on the Capitol Square pertaining

to a variety of subjects, religious, commercial, political,

social and secular.

15. In August 1993, the Plaintiffs and their

associates applied for and were granted a permit to hold a

rally at the Statehouse on October 23, 1993.

16. Plaintiffs and their associates peaceably

engaged in their rally at that site on that date.

17. | Many demonstrators, not all of whom were

peaceable, gathered to protest the presence and message of

the Plaintiffs. |

18. Many officers of the State Highway Patrol, the

Columbus Police Department and the Franklin County

Sheriff's Department were deployed to protect the speakers

from hostile demonstrators.

19. Following the event, local and state officials

announced that they would send a bill for security services

for the October rally to the Plaintiffs.

20. Following those announcements, Plaintiffs

stated that if a bill was sent, they would seek to hold a rally

on January 15, 1994 to protest the charges and

discriminatory treatment by governmental officials.

21. A bill for $15,116.76 for security-related costs

was sent to Plaintiffs by Defendant Capitol Square Review

and Advisory Board on October 26, 1993. A copy of that

bill is attached hereto as Exhibit 1. Plaintiffs are informed

and believe that additional charges will be imposed.

pee Plaintiffs are informed and believe that, before

and after the billing, state officials stated that no future

permit should be granted until the bill was paid.

23. On October 29, 1993, Plaintiffs applied for a

permit to use the Statehouse steps for a rally at which they

expected up to 50 associates to attend. A copy of that

application is attached as Exhibit 2.

24. As of the date of filing this action, the

Defendants have refused to act on the permit application to

hold the January 15, 1994 rally.

25. In November 1993, the board adopted a policy

precluding all religious displays at the Statehouse with the

stated reason that if it approved some, it would have to

approve a display of a cross by the Ku Klux Klan.

26. Days later, after substantial public and political

pressure, the board reversed its position and voted to allow

certain forms of holiday and other displays.

27. Following that action, the board authorized a

Christmas tree and a menorah to be erected. The state has

permitted a Christmas tree and lights to be displayed this

year since December 7. The state annually expends state

resources in connection with holiday displays.

28. On November 29, 1993, the rabbi who heads

the Lubavitcher congregation applied for, and on the same

day the state granted, permission to erect a Hanukkah

menorah from December 8 through December 16, 1993. A

copy of the application is attached hereto as Exhibit 3. The

menorah is presently on display on the Statehouse grounds.

29. Also on November 29, 1993, the Plaintiffs in

this action, through Plaintiff Carr, applied for a permit to

place a cross on the Statehouse grounds from December 8,

1993 through December 24, 1993. A copy of that

application is attached hereto as Exhibit 4.

30. The cross was to be approximately ten feet

high, six feet across, made from 2 x 6 lumber, painted

white, secured upright by a free-standing tripod, and would

have been accompanied by a sign readily visible from a

distance stating "This cross was erected by private

individuals without government support for the purpose of

expressing respect for the holiday season and to assert the

right of all religious views to be expressed on an equal basis

on public property" or words of similar import or as might

otherwise be negotiated with the Defendants.

31. On December 3, 1993, Defendant Keller

wrote, and on December 6, 1993 Mr. Carr received, a letter

rejecting the Ku Klux Klan application to erect its cross. A

copy of that letter is attached hereto and incorporated herein

as Exhibit 5.

32. On December 9, 1993, counsel for the

Plaintiffs met with counsel for the Defendants, and the

Plaintiffs filed a Notice of Appeal and Request for an

Expedited Hearing.

33. On December 10, 1993 the State sent, and on

December 13, 1993 the Plaintiffs received, a letter waiving

Statutory time constraints and agreeing to an expedited

hearing.

34. To date, no hearing has been held and the

denial stands.

Count One

35. By refusing to allow the Plaintiffs to erect

their cross as part of the Capitol Square holiday display, the

Defendants (a) have violated the guarantees of freedom of

expression and free exercise of religion secured under the

First and Fourteenth Amendments to the Constitution of the

United States; (b) have deprived the Plaintiffs of the equal

protection of the laws and due process of law secured under

the Fourteenth Amendment to the Constitution of the United

States; and (c) have engaged in conduct that constitutes a bill

of attainder and an ex post facto law under Article I, Section

10 of the Constitution of the United States.

Count Two

36. By denying a Plaintiff a permit to hold a rally

on January 15, 1994, the Defendants (a) have violated the

guarantees of freedom of expression and assembly secured

under the First and Fourteenth Amendments to the

Constitution of the United States; (b) have deprived the

Plaintiffs of the equal protection of the laws and due process

of law secured under the Fourteenth Amendment to the

Constitution of the United States; and (c) have engaged in

conduct that constitutes a bill of attainder and an ex post

facto law under Article I, Section 10 of the Constitution of

the United States.

Count Three

37. By billing the Plaintiffs and refusing to retract

the billing for security costs related to the rally, the Plaintiffs

for security costs related to the rally, Defendants (a) have

chilled and violated the guarantees of freedom of expression

and assembly secured under the First and Fourteenth

Amendments to the Constitution of the United States; (b)

have deprived the Plaintiffs of the equal protection of the

laws and due process of law secured under the Fourteenth

Amendment to the Constitution of the United States; and (c)

have engaged in conduct that constitutes a bill of attainder

and an ex post facto law under Article I, Section 10 of the

Constitution of the United States.

Count Four

38. The conduct of the Defendants set forth above

constitutes a continuing pattern of harassment and

discriminatory conduct because of the political viewpoints of

the Plaintiffs and (a) violates the free speech guarantees of

the First and Fourteenth Amendments; (b) violates the equal

protection of the laws and due process of the law guaranteed

under the Fourteenth Amendment; and (c) 1s tantamount to

a bill of attainder and an ex post facto law under Article I,

Section 10 of the Constitution of the United States.

VI. Injury

51. The Plaintiffs have suffered and will continue

to suffer irreparable injury by virtue of the Defendants’

actions as described above, and the Plaintiffs are without an

adequate legal remedy with which to address the

aforementioned constitutional and other violations.

52. In addition, the plaintiffs have suffered injury

by virtue of the conduct of the Defendants as described

above, including personal expense and the necessary devotion

of extraordinary time and attention by the Plaintiffs in order

to secure their rights.

WHEREFORE, Plaintiffs request the following relief:

:. That a declaratory judgment issue, and a

temporary retraining order, and preliminary and permanent

injunctions be entered ordering the Defendants to permit the

Plaintiffs to display their cross as a part of the 1993 holiday

on Capitol Square.

a That a declaratory judgment issue, and

preliminary and permanent injunctions be entered directing

the Defendants to permit the Plaintiffs to hold their January

15, 1994 rally.

a That a declaratory judgment issue, and

preliminary and permanent injunctions be entered voiding the

billing for security services.

4. That the Plaintiffs be awarded damages in the

amount of $1,000.00 for their expenditures and added time

and attention necessary to secure their rights.

5. That the Plaintiffs be awarded their costs and

attorneys’ fees pursuant to 42 U.S.C. Section 1988.

6. That the Plaintiffs have such other relief as the

court deems proper.

Respectfully submitted,

Benson A. Wolman

(0040123)

Trial Attorney

3600 Olentangy River Road,

Bldg. 501

Columbus, Ohio 43214-3913

(614) 459-4140

(614) 459-4503 (facsimile)

David Goldberger (0010292)

Of Counsel

3600 Olentangy River Road,

Bldg. 501

Columbus, Ohio 43214-3913

(614) 459-4140

(614) 459-4503 (facsimile)

Attorneys for Plaintiffs

Of Counsel

Kevin Francis O’ Neil]

American Civil Liberties Union

of Ohio Foundation

1223 West Sixth Street

Cleveland, Ohio 44113

(216) 781-6278

COLUMBUS COLUMBUS BOARD OF EDUCATION

PUBLIC Columbus Public Schools*270 East State

SCHOOLS _ Street*

Columbus, Ohio 43215

December 9, 1993

Elizabeth Mayo

Porter, Wright, Morris & Arthur

41 S. High Street - 28th Floor

Columbus, OH 43215

Dear Ms. Mayo:

As a citizen and public official, I write to counsel

each member of the Capitol Square Review and Advisory

Board to deny the Ku Klux Klan’s application to demonstrate

on Statehouse grounds on the very day the nation honors the

memory of Dr. Martin Luther King, Jr. The Klan is a

scabrous assembly of gangsters, the unspeakable history of

which constitutes a monstrous litany of crimes against

humanity and the republic. By virtue of becoming a

Klansman, every member, regardless of his personal actions,

dips his hands in the blood unjustly shed by thousands of

black women, children, and men, whose fearful sufferings

and ghastly deaths will forever remain unrequited, both at

law and by the standards of universal morality.

Any presumably noble appeal to the Klan’s First

Amendment rights cannot withstand principled scrutiny.

Their very appearance before the seat of state government on

a day of heightened emotional resonance is tantamount to

maliciously shouting "Fire!" in a crowded theater.

America’s eminent jurists have long held that free speech

encounters its limits when good order and the common weal

are immediately threatened.

There are times when passionate believers in the

Constitution affirm that government does possess a

transcendent right to prohibit malefactors from using the

people’s property and democratic symbols to promote evil.

Denying the Klan’s request is not only prudent, it is also in

the best Constitutional tradition. If the Klan sues and if a

court misguidedly awards it a favorable judgment, so be it!

I, among many, would consider payment of damages a

virtuous use of public funds if it prevented civic disorder and

an affront to the community’s sense of right and wrong.

Yours very truly for the cause that needs assistance,

Bill Moss

Member

Plaintiff’ s

Exhibit

INVOICE

OCTOBER 26, 1993 CAPITOL SQUARE

REVIEW AND

MICHAEL LOWE ADVISORY BOARD

P. O. BOX 2056

WACO TX 76703 The Statehouse

Columbus, Ohio 43215

(614) 752-5209

FAX (614) 752-5209

DESCRIPTION OF SERVICES

Hon. Richard Finan

Chairman

PARKING GARAGE REVENUE LOSES $ 1,243.50

PROTECTIVE FENCING 9,179.00

Ronald T. Keller

Executive Director

LABOR COSTS - PLANNING, SETUP, TEARDOWN,

Christopher Cook

Assistant Attorney General

Legal Counsel

MATERIALS AND CLEANUP 4,94,26

TOTAL AMOUNT DUE: $15,116.76

TERMS: NET - 30 DAYS FROM INVOICE DATE

PLEASE MAKE CHECK PAYABLE TO:

CSRAB

OHIO STATEHOUSE

COLUMBUS, OH 43215

CC: VINCE PINETTE

Plaintiff’ s

Exhibit

Capitol Square Review & Advisory Board

Phone: 614/752-9777 Fax: 614-/7525208

Statehouse, Columbus, Ohio 43215

APPLICATION FOR

PERMIT TO USE STATEHOUSE GROUNDS

Date:

Capitol Square Review and Advisory Board exercises

supervision and control of

Capitol Square pursuant to 123.02 O.R.C.

Capitol Square Review and Advisory Board hereby grants

permission to:

Name of Group: Knights of the Ku Klux Klan

Representative’s name, address, phone #: Vince Pinette,

P.O. Box [illegible] Cleve. Ohio 44102

216-631-0305

to occupy and use Capitol Square subject to the terms and

conditions below:

Date and time (set-up & clean up included): Sat Jan 15 1994

2:00- 4:00 p.m.

Event time: 2:00 & 4:00 p.m. Portion of Capitol Square

to be occupied: north steps

Approximate number of persons to attend: 50

Type of event: Rally

Use: The user organization agrees that, during the terms

of this permit, assigned areas shall be operated under the

following procedures:

Administrative Fee: A $20 administrative fee will be

assessed for the use of any portion of the Capitol

Square facilities. Checks may be made payable to:

Capitol Square Review and Advisory Board. The

board, at its discretion, may waive fees for just

cause.

Prescribed Activities: The user organization shall not

permit any act inconsistent with or in violation of

local, state, or federal laws. [NO PRICE ON FREE

SPEECH]*

Bond Requirement: An optional bond may be

required based on the nature of the event. The bond

amount will be determined by the Capitol Square

Review and Advisory Board (C.S.R.A.B.) to protect

damage to the property incurred during the term of

this permit. C.S.R.A.B. has the discretion to waive

this bond requirement.

Facility Protection: The user organization shall

maintain Capitol Square facilities in a reasonable

manner during the terms of this permit, keeping it

clean, sanitary, and free of debris. After termination

of this permit, Capitol Square areas shall be returned

to C.S.R.A.B. in the same condition as prior to the

event.

Security/Maintenance: C.S.R.A.B. security or

maintenance personnel will be used as agreed upon by

the board and permit applicant. All service charges

will be billed to the permit holder prior to the date of

the event. If any additional charges are incurred

during the event, the permit holder will be billed at

the completion of the event.

Vehicles/Structures: No equipment, apparatus,

machine or vehicle is permitted on Capitol buildings

or grounds without the express written permission of

the C.S.R.A.B.

Signs, Banners, Flags: The use of stickers or labels,

eye ee

cellophane pressure sensitive tape, screws, nails,

sticks, poles, or any other mounting technique for

displaying signs, banners, or flags which adversely

affects the structural, [illegible], or decorative

condition of the Capitol buildings or any permanent

structure on the premises be prohibited

8. Supplemental Accommodation: Supplemental

accommodation such as, but not limited to:

electricity, water, litter control, and outdoor facilities

may be provided by C.S.R.A.B. These items will be

charged to the permit holder.

9. Interference: Use of Capitol Square facilities shall

only be done in a manner so as not to interfere or

compete with the normal business proceedings of the

Ohio General Assembly. On the days of each

proceedings, hours of public activities shall be held to

the maximum extent possible during lunch hours from

11:00 A.M. to 1:00 P.M. or after 4:30 P.M.

10. Sound Equipment: Use of sound projection

equipment shall be in compliance with local noise

ordinances and used in a manner so as to not interfere

with the proceedings of the General Assembly or

other activities being conducted on Capitol Square.

11. Electrical Hook-up: There is a $5.00 charge for

electrical hook-up. please make your check payable

to the Capitol Square Review and Advisory Board

and submit it to C.S.R.A.B. before the date of the

event.

12. Food/Beverages: No food or beverages, or

merchandise shall be sold or dispensed on Capitol

Square Grounds without the express written consent

of C.S.R.A.B. No transport vendors are permitted to

use the Capitol Square facilities. Food and beverage

dispensing shall be in accordance with all state, and

federal laws.

13. Liability: The user organization shall indemnify and

hold harmless the State of Ohio and C.S.R.A.B.

against any and all claims, demands, actions or

causes of actions, together with any and all losses.

costs or related expenses asserted by any person or

persons for bodily injury, death or property damages

resulting from or arising out of this permitted use of

Capitol Square.

*HAND WRITTEN BY

APPLICANT

CAPITOL SQUARE REVIEW AND ADVISORY BOARD

ACCEPTED

C.S.R.A.B. only "y

DENIED

Fee: $20.00 refundable ae. A.B.

REPRESENTATIVE

Paid: $20.00 I have read the above

permit and agree to the

terms and conditions

Date: 10-29-93 therein

Check:

PERMIT APPLICANT

DATE _ 10-/29-93

PLAINTIFF’S

Capitol Square Review & Advisory Board EXHIBIT 3

Phone: 614/752-9777 Fax: 514-/7525208

Statehouse, Columbus, Ohio 43215

APPLICATION FOR

PERMIT TO USE STATEHOUSE GROUNDS

Date: 11-29-93

Capitol Square Review and Advisory Board exercises

supervision and control of

Capitol Square pursuant to 123.02 O.R.C.

Capitol Square Review and Advisory Board hereby grants

permission to:

Name of Group: Rabbi [illegible]

Representative’s name, address, phone #: [illegible] to

occupy and use Capitol Square subject to the terms and

conditions below:

Date and time (set-up & clean up included): Dec. 8, 16, 93

Event time: N/A _ Portion of Capitol Square to be

occupied: Grounds

Approximate number of persons to attend: N/A

Type of event: Seasonal Display

Use: The us organization agrees that, during the terms of

this permit, assigned areas shall be operated under the

following procedures:

l. Administrative Fee: A $20 administrative fee will be

assessed for the use of any portion of the Capitol

Square facilities. Checks may be made payable to:

Capitol Square Review and Advisory Board. The

board, at its discretion, may waive fees for just

Cause..

Prescribed Activities: The user organization shall not

permit any act inconsistent with or in violation of

local, state, or federal laws.

Bond Requirement: An optional bond may be

required based on the [illegible] of the event. The

bond amount will be determined by the Capitol

Square Review and Advisory Board (C.S.R.A.B.) to

protect damage to the property incurred during the

term of this permit. C.S.R.A.B. has the discretion to

waive this bond requirement.

Facility Protection: The user Organization shall

maintain Capitol Square facilities in a reasonable

manner during the terms of this permit, keeping it

clean, sanitary, and free of debris. After termination

of this permit, Capitol Square areas shall be returned

to C.S.R.A.B. in the same condition as prior to the

event.

Security/Maintenance: C.S.R.A.B. security or

maintenance personnel will be used as agreed upon by

the board and permit applicant. All service charges

will be billed to the permit holder prior to the date of

the event. If any additional charges are incurred

during the event, the permit holder will be billed at

the completion of the event.

Vehicles/Structures: No equipment, apparatus,

machine or vehicle is permitted on Capitol buildings

or grounds without the express written permission of

the C.S.R.A.B.

Signs, Banners, Flags: The use of stickers or labels,

cellophane pressure sensitive tape, screws, nails,

sticks, poles, or any other mounting technique for

displaying signs, banners, or flags which adversely

affects the structural, [illegible], or decorative

10.

11.

12.

13.

condition of the Capitol buildings or any permanent

structure on the premises be prohibited

Supplemental Accommodation: Supplemental

accommodation such as, but not limited to:

electricity, water, litter control, and outdoor facilities

may be provided by C.S.R.A.B. These items will be

charged to the permit holder.

Interference: Use of Capitol Square facilities shall

only be done in a manner so as not to interfere or

compete with the normal business proceedings of the

Ohio General Assembly. On the days of each

proceedings, hours of public activities shall be held to

the maximum extent possible during lunch hours from

11:00 A.M. to 1:00 P.M. or after 4:30 P.M.

Sound Equipment: Use of sound projection

equipment shall be in compliance with local noise

ordinances and used in a manner so as to not interfere

with the proceedings of the General Assembly or

other activities being conducted on Capitol Square.

Electrical Hook-up: There is a $5.00 charge for

electrical hook-up. please make your check payable

to the Capitol Square Review and Advisory Board

and submit it to C.S.R.A.B. before the date of the

event.

Food/Beverages: No food or beverages, or

merchandise shall be sold or dispensed on Capitol

Square Grounds without the express written consent

of C.S.R.A.B. No transport vendors are permitted to

use the Capitol Square facilities. Food and beverage

dispensing shall be in accordance with all state, and

federal laws.

Liability: The user organization shall incemnify and

hold harmless the State of Ohio and C.S.R.A.B.

against any and all claims, demands, actions or

causes of actions, together with any and all losses,

costs or related expenses asserted by any person or

persons for bodily injury, death or Property damages

resulting from or arising out of this permitted use of

Capitol Square.

*HAND WRITTEN BY

APPLICANT

CAPITOL SQUARE REVIEW AND ADVISORY BOARD

X ACCEPTED (RTK)

C.S.R.A.B. use only

DENIED

Fee: $20.00 C.S.R.A.B. REPRESENTATIVE

Paid: $20.00 I have read the above permit and agree

to the terms and

Date: 11/29/93 conditions specified therein

Clerk: Cash

PERMIT APPLICANT

DATE — 11/29/93

PLAINTIFF’S

Capitol Square Review & Advisory Board EXHIBIT 4

Phone: 614/752-9777 Fax: 614-/7525208

Statehouse, Columbus, Ohio 43215

APPLICATION FOR

PERMIT TO USE STATEHOUSE GROUNDS

Date:

Capitol Square Review and Advisory Board exercises

supervision and control of

Capitol Square pursuant to 123.02 O.R.C.

Capitol Square Review and Advisory Board hereby grants

permission to:

Name of Group: Knights of the Ku Klux Klan (Realm of

Ohio)

Representative’s name, address, phone #: Donnie A. Carr

(216) 631-0305

P.O. Box 28705, Columbus, Ohio, 43228-0705

to occupy and use Capitol Square subject to the terms and

conditions below:

Date and time (set-up & clean up included): 12-8-93

Event time: All day 24 hours Dec. 8 - 24, 1993 Portion

of Capitol Square to be occupied: State House Lawn

(Front)

Approximate number of persons to aitend:

Type of event: Erect a Cross for Christmas

Use: The user organization agrees that, during the terms

of this permit, assigned areas shall be operated under the

following procedures:

l. Administrative Fee: A $20 administrative fee will be

assessed for the use of any portion of the Capitol

Square facilities. Checks may be made payable to:

Capitol Square Review and Advisory Board. The

board, at its discretion, may waive fees for just

cause..

r S Prescribed Activities: The user organization shall not

permit any act inconsistent with or in violation of

local, state, or federal laws. {DOES NOT

APPLY ]*

——————————

3.X

Bond Requirement: An optional bond may be

required based on the nature event. The bond amount

will be determined by the Capitol Square Review and

Advisory Board (C.S.R.A.B.) to protect damage to

the property incurred during the term of this permit.

C.S.R.A.B. has the discretion to waive this bond

requirement.

Facility Protection: The userorganization shall

maintain Capitol Square facilities in a reasonable

manner during the terms of this permit, keeping it

clean, sanitary, and free of debris. After termination

of this permit, Capitol Square areas shall be returned

to C.S.R.A.B. in the same condition as prior to the

event.

Security/Maintenance: C.S.R.A.B. security or

maintenance personnel will be used as agreed upon by

the board and permit applicant. All service charges

will be billed to the permit holder prior to the date of

the event. If any additional Charges are incurred

during the event, the permit holder will be billed at

the completion of the event.

Vehicles/Structures: | No equipment, apparatus,

machine or vehicle is permitted on Capitol buildings

or grounds without the express written permission of

the C.S.R.A.B.

Signs, Banners, Flags: The use of stickers or labels,

cellophane pressure sensitive tape, screws, nails,

sticks, poles, or any other mounting technique for

displaying signs, banners, or flags which adversely

affects the structural, [illegible], or decorative

condition of the Capitol buildings or any permanent

structure on the premises be prohibited

Supplemental Accommodation: Supplemental

accommodation such as, but not limited to:

electricity, water, litter control, and outdoor facilities

may be provided by C.S.R.A.B. These items will be

charged to the permit holder.

9. Interference: Use of Capitol Square facilities shall

only be done in a manner so as not to interfere or

compete with the normal business proceedings of the

Ohio General Assembly. On the days of each

proceedings, hours of public activities shall be held to

the maximum extent possible during lunch hours from

11:00 A.M. to 1:00 P.M. or after 4:30 P.M.

10. Sound Equipment: Use of sound projection

equipment shall be in compliance with local noise

ordinances and used in a manner so as to not interfere

with the proceedings of the General Assembly or

other activities being conducted on Capitol Square.

11. Electrical Hook-up: There is a $5.00 charge for

electrical hook-up. please make your check payable

to the Capitol Square Review and Advisory Board

and submit it to C.S.R.A.B. before the date of the

event.

12. Food/Beverages: No food or beverages, or

merchandise shall be sold or dispensed on Capitol

Square Grounds without the express written consent

of C.S.R.A.B. No transport vendors are permitted to

use the Capitol Square facilities. Food and beverage

dispensing shall be in accordance with all state, and

federal laws.

13. Liability: The user organization shall indemnify and

hold harmless the State of Ohio and C.S.R.A.B.

against any and all claims, demands, actions or

causes of actions, together with any and all losses,

costs or related expenses asserted by any person or

persons for bodily injury, death or property damages

resulting from or arising out of this permitted use of

Capitol Square.

CAPITOL SQUARE REVIEW AND ADVISORY BOARD

ACCEPTED

C.S.R.A.B. only X DENIED

Fee: $20.00 nonrefundable C.S.R.A.B.

REPRESENTATIVE

Paid: $20.00 I have read the above permit and agree

to the terms and conditions specified

Date: 1/29/93 therein

Check: Cash

PERMIT APPLICANT

DATE 11-29-93

HAND WRITTEN IN BY

APPLICANT*

PLAINTIFF’S

EXHIBIT 5

CAPITOL SQUARE

REVIEW AND

ADVISORY BOARD

The Statehouse

Columbus, Ohio 43215

(614) 752-9777

FAX (614) 752-5209

Hon. Richard Finan

Chairman

Ronald T. Keller

Executive Director

Christopher Cook

Assistant Attorney

General

Legal Counsel

December 3, 1993

Donnie A. Carr

P.O. Box 28705 .

Columbus, Ohio 43220-0705

Dear Mr. Carr:

Pursuant to Ohio Administrative Code 128-4-02(B),

the Capitol Square Review and Advisory Board hereby gives

notice that it must deny your application to erect a cross on

the Statehouse Grounds between December 8, 1993 and

December 24, 1993. This decision was made upon the

advice of counsel, in a good faith attempt to comply with the

Ohio and United States Constitutions, as they have been

interpreted in relevant decisions by the Federal and State

Courts. We would direct your attention in particular to

controlling decisions recently rendered by the United States

Supreme Court under the First Amendment to the United

States Constitution.

In addition, I assume you are aware that we placed a

telephone call to you earlier this week, seeking more

information about the precise nature of the display you were

requesting the Board to approve. We have not yet heard

from you in response to that call.

Pursuant to Chapter 119, Ohio Revised Code and

128-4-04 of the Ohio Administrative Code, you are hereby

advised that you may request a hearing on this matter. If

your wish to request such a hearing, that request must be

made in writing and received by the Capitol Square Review

and Advisory Board within thirty (30) days of the date of

mailing of this notice. This notice was mailed on the date

indicated above.

You are further advised that you are entitled to appear

in person, or by your attorney, or both, or you may present

your position, arguments, or contentions in writing, and that

at the hearing you may present evidence and ex.amine

witnesses appearing for and against you.

In the event there is no request for such hearing

received within thirty (30) days of the date of mailing of this

notice, the Capitol Square Review and Advisory Board will

consider this matter closed.

Donnie A. Carr

December 3, 1993

Page Two

Section 119.07, Ohio Revised Code, in part states:

"Whenever a party requests a hearing

in accordance with this section and

Section 119.06 of the Ohio Revised

Code, the agency shall immediately set

the date, time, and place for such

hearing and forthwith notify the party

thereof. The date set for such hearing

shall be within fifteen (15) days, but

no earlier than seven (7) days, after

the party has requested a hearing,

unless otherwise agreed to by the

agency and the party."

Sincerely,

RON KELLER

Executive Director

Capitol Square Review and

Advisory Board

Registered Mail

Return Receipt Requested

THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Vincent J. Pinette, et al.

Plaintiffs, : Case No. C2-93-1162

Vv. : Judge Graham

Capitol Square Review and : Magistrate Judge Abel

Advisory Board, et al.

Defendants.

VERIFICATION OF COMPLAINT

STATE OF OHIO )

)} SS:

COUNTY OF CUYAHOGA _)

I, Vincent J. Pinette, hereby assert that I have read

the Complaint in this action and that the information set forth

therein Is true to the best of my knowledge and belief.

Vincent J. Pinette

Sworn to me and signed via facsimile on this 17th day

of December, 1993.

Notary Public

Benson A. Wolman,

Attorney-at-Law

Notary Public - State of Ohio

My commission has no

expiration date.

Section 147.03 R.C.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Vincent J. Pinette, et al.

Plaintiffs,

Case No. C2-93-1162

Judge Graham

Capitol Square Review and

Advisory Board, et al. Magistrate Judge Abel

Defendants.

Pursuant to Rule 65 of the Federal Rules of Civil

Procedure, Plaintiffs move this Court for a temporary

restraining order and a preliminary injunction directing the

Defendants to issue to the Plaintiffs the permit for the use of

Capitol Square as filed on November 29, 1993 and as more

fully elaborated upon, for the reasons set forth in the

accompanying memorandum and incorporated herein.

Plaintiffs request that the security for this injunction

be set at a minimal rate of $50.00.

Respectfully submitted,

Benson A. Wolman

(0040123)

Trial Attorney

3600 Olentangy River Road,

Bldg. 501

Columbus, Ohio 43214-3913

(614) 459-4140

(614) 459-4503 (facsimile)

David Goldberger (0010292)

of Counsel

3600 Olentangy River Road,

Bidg. 501

Columbus, Ohio 43214-3913

(614) 459-4140

(614) 459-4503 (facsimile)

Attorneys for Plaintiffs

Of Counsel

Kevin Francis O’ Neill

American Civil Liberties Union

of Ohio Foundation

1223 West Sixth Street

Cleveland, Ohio 44113

(216) 781-6278

elias

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Vincent J. Pinette, et al.,

Plaintiffs,

Case No. C2-93-1162

Vv.

Judge Graham

Capitol Square Review and

Advisory Board, et al., Magistrate Judge Abel

Defendants.

STATE OF OHIO

COUNTY OF FRANKLIN _ SS:

Affiant, Rabbi Harold J. Berman, being duly sworn

on oath, states as follows:

I have been asked to comment on the question of

whether the Hanukkiyah, more commonly known as a

Hanukkah Menorah, is a religious symbol... I believe that

even the most superficial view of Jewish tradition suggests

that it is and that any claim to the contrary is unjustified.

The lighting of Hanukkah lights is mentioned with

considerable detail in the Talmud, with a number of

questions as to the number of lights to be lit on the days of

Hanukkah and the religious obligation to set the lights in a

public place and refrain from using the light for any secular

purpose. A jew is obligated to light the lights on each night

of Hanukkah and is obligated to say the blessing which

contains the words, "Praised are you, Lord our God, ruler of

the universe, who made us holy by His commandments and

commanded us to light the lights of Hanukkah."

In every generation, wherever Jews lived, they

designed Hanukkah lamps, "Menorahs," with which to fill

the commandment and light the lights. These were obviously

considered to be ritual objects and they often adorned the

Synagogue in some way on a permanent basis. Traditionally

the Menorah is lit in the Synagogue as part of religious

services each evening during Hanukkah in addition to being

lit at home by the family. It is possible to say that the

Menorah is a secular symbol only in the sense that any

religious symbol conveys a message and the message can,

nearly always, be presented in a secular light. Nonetheless,

the reason Jews light the Menorah is because it is a

commandment of Jewish tradition, to be lit at home and in

the synagogue to the accompaniment of blessings before

God. After it is lit, it is customary to place it in a public

place (such as the window of one’s home, or even outside

next to the door of one’s home) in order to, "publicize God’s

miracle." It is impossible, however, in the context of Jewish

tradition, to separate the Menorah from the ritual with which

we light it and the blessings that accompany it. To Jews it

has been the religious symbol of the holiday Hanukkah since

our very earliest days and to claim otherwise is to take away

from the holiday the most precious religious symbol it offers

us.

I hope this has been helpful. I would be pleased to

offer additional information upon request.

Further Affiant Sayeth Naught,

Harold J. Berman

Sworn to before me and signed in my presence, a

Notary Public in and for said State and County, on this 17th

day of December, 1993.

Notary Public

Benson A. Wolman,

Attorney-At-Law

Notary Public - State of Ohio

My commission has no

expiration date

Section 147.03 R.C.

SUPPLEMENTAL EXHIBIT 10]

[Reprinted in appendix to brief in opposition to writ of

certiorari p. RA 23]

SUPPLEMENTAL EXHIBIT 102

[Reprinted in brief in opposition to writ of

certiorari p. RA 24]

SUPPLEMENTAL EXHIBIT 103

[Reprinted in brief in Opposition to writ of

certiorari p. RA 28]

SUPPLEMENTAL EXHIBIT 104

SUPPLEMENTAL EXHIBIT 105

[Reprinted in brief in opposition to writ of

certiorari p. RA 31]

SUPPLEMENTAL EXHIBIT 106

[Reprinted in brief in opposition to writ of

certiorari p. RA 32]

SUPPLEMENTAL EXHIBIT 107

DEFENDANTS’

SUPPLEMENTAL

EXHIBIT 107

SUPPLEMENTAL EXHIBIT 108

DEFENDANTS

SUPPLEMENTAL

EXHIBIT 108

SUPPLEMENTAL EXHIBIT 109

iz:

DEFENDANTS’

SUPPLEMENTAL

EXHIBIT 109

SUPPLEMENTAL EXHIBIT 110

SUPPLEMENTAL

DEFENDANTS’

EXHIBIT 110

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Vincent J. Pinette

P.O. Box 620007

Cleveland, Ohio 44102

and

Dennis A. Carr

P.O. Box 28705

Columbus, Ohio 43228-0705

and

Knights of the Ku Klux

Klan (Ohio Realm)

P.O. Box 620007

Cleveland, Ohio 44102.

Plaintiffs.

v. Case No. C2-93-1162

Capitol Square Review and

Advisory Board JUDGE GRAHAM

The Statehouse

Columbus, Ohio 43215

MAGISTRATEJUDGE

and > ABEL

Ronald T. Keller.

Daniel Shellenbarger, and

Richard H. Finan,

c/o The Statehouse

Columbus, Ohio 43215

individually and in their

official capacities,

Defendants.

l. This is an action for declaratory and injunctive

relief and for damages brought by members of the Ku Klux

Klan because the Capitol Square Review and Advisory Board

and its members and employees have rejected the application

of the Plaintiffs to erect a free-standing, privately owned

cross on the Statehouse grounds. In addition, the suit seeks

to void a bill from public officials for security services

related to prior use of the Statehouse grounds and to require

the Defendants to approve a permit to hold a January rally on

Capitol Square. The action seeks declaratory and injunctive

relief and damages for these deprivations and for a pattern of

denial of rights of the plaintiffs.

II. Jurisdiction

ra The claims for relief and causes of action

alleged herein arise under 42 U.S.C.§ 1983, the First and

Fourteenth Amendments and Article I, Section 10 of the

Constitution of the United States.

a The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. Sections 1331 and 1343, 42 U.S.C.

Section 1983.

4. Declaratory and injunctive relief is sought

pursuant to 28 U.S.C. §§ 2201 and 2202, and 42 U.S.C. §

1983.

III. Venue

» 5 This action properly lies in the Southern

District of Ohio, Eastern Division, pursuant to 28 U.S.C. §

1391(b), because the critical Defendants are found in this

judicial district and all Defendants reside in this state and

because a substantial part of the events or Omissions, and all

of the property, that are the subject of the action are located

in Franklin County, Ohio.

IV. Parties

6. Plaintiff Vincent J. Pinette is the Chief

Executive Officer of the Knights of the Ku Klux Klan (Ohio

Realm); Plaintiff Donnie A. Carr is the Unit Coordinator for

Columbus, Ohio of the Knights of the Ku Klux Klan (Ohio

Realm); and, the Knights of the Ku Klux Klan (Ohio Realm)

is an unincorporated association whose members reside in the

State of Ohio.

7. Plaintiff Pinette resides in Cuyahoga County,

Ohio; Plaintiff Carr resides in Franklin County, Ohio; and

Plaintiff Knights of the Ku Klux Klan (Ohio Realm) is

headquartered in Cuyahoga County, Ohio.

8. Defendant Capitol Square Review and

Advisory Board is the state board chartered under Ohio

Revised Code Section 123.022 that controls the land and

facilities which comprise the Statehouse and its environs in

downtown Columbus.

9. Defendant Keller is the Executive Director of

the Capitol Square Review and Advisory Board; Defendant

Shellenbarger is the spokesperson for the board; and

Defendant Finan, a state senator, is the chairperson of the

board. They are sued in their official and personal

Capacities.

10. The Board is situated in Franklin County,

Ohio; Defendants Keller and Shellenbarger reside in Franklin

County, Ohio; and Defendant Finan resides in Hamilton

County, Ohio.

11. The various acts and omissions alleged herein

were engaged in and carried out by, between and among the

individual Defendants acting personally and while said

Defendants were employed by or acting for the State of

Ohio. All of the actions alleged herein were engaged in and

carried out by, between and among individual Defendants,

under color of state law.

Vv. Facts

12. For more than a century, Capitol Square has

been a traditional, public forum located in downtown

Columbus. It is the seat of government of the State of Ohio.

It is surrounded on all sides by streets and by public and

private offices and business establishments and places of

accommodation or amusement. Capitol Square traditionally

has been used by office holders, office seekers, non-profit

enterprises, commercial enterprises, and individuals for

speeches, gatherings, and displays.

13. | For many years during the period stretching

from approximately Thanksgiving until the new year, Capitol

Square has been adorned with festival lights and a Christmas

tree. In recent years public authorities controlling Capitol

Square have granted the requested permit of the Lubavitcher

sect of the Jewish faith to erect a free-standing Hanukkah

menorah, a nine-branch candelabrum which is the primary

visual symbol of the Jewish holiday of Hanukkah and which

has both religious and secular significance.

14. During the course of the year private persons

and organizations are regularly permitted to gather and to

erect temporary structures on the Capitol Square pertaining

to a variety of subjects, religious, commercial, political,

social and secular.

15. In August 1993, the Plaintiffs and their

associates applied for and were granted a permit to hold a

rally at the Statehouse on October 23, 1993.

16. Plaintiffs and their associates peaceably

engaged in their rally at that site on that date.

17. Many demonstrators, not all of whom were

peaceable, gathered to protest the presence and message of

the Plaintiffs.

18. Many officers of the State Highway Patrol, the

Columbus Police Department and the Franklin County

Sheriff's Department were deployed to protect the speakers

from hostile demonstrators.

19. Following the event, local and state officials

announced that they would send a bill for security services

for the October rally to the Plaintiffs.

20. Following those announcements, Plaintiffs

stated that if a b ill was sent, they would seek to hold a rally

on January 15, 1994 to protest the charges and

discriminatory treatment by governmental officials.

21. A bill for $15,116.76 for security-related costs

was sent to Plaintiffs by Defendant Capitol Square Review

and Advisory Board on October 26, 1993. A copy of that

bill is attached hereto as Exhibit 1. Plaintiffs are informed

and believe that additional charges will be imposed.

an Plaintiffs are informed and believe that, before

and after the billing, state officials stated that no future

permit should be granted until the bill was paid.

23. On October 29, 1993, Plaintiffs applied for a

permit to use the Statehouse steps for a rally at which they

expected up to 50 associates to attend. A copy of that

application is attached as Exhibit 2.

24. As_ of the date of filing this action, the

Defendants have refused to act on the permit application to

hold the January 15, 1994 rally.

25. In November 1993, the board adopted a policy

precluding all religious displays at the Statehouse with the

stated reason that if it approved some, it would have to

approve a display of a cross by the Ku Klux Klan.

26. Days later, after substantial public and political

pressure, the board reversed its position and voted to allow

certain forms of holiday and other displays.

27. Following that action, the board authorized a

Christmas tree and a menorah to be erected. The state has

permitted a Christmas tree and lights to be displayed this

year since December 7. The state annually expends state

resources in connection with holiday displays.

28. On November 29, 1993, the rabbi who heads

the Lubavitcher congregation applied for, and on the same

day the state granted, permission to erect a Hanukkah

menorah from December 8 through December 16, 1993. A

copy of the application is attached hereto as Exhibi:3. The

menorah was on display on the Statehouse grourtis from

December 8 through December 16, 1993. t

29. Also on November 29, 1993, the Plaintiffs in

this action, through Plaintiff Carr, applied for a permit to

place a cross on the Statehouse grounds from December 8,

1993 through December 24, 1993. A copy :of that

application is attached hereto as Exhibit 4. "

30. The cross was to be approximatelycten feet

high, six feet across, made from 2 x 6 lumber.: painted

white, secured upright by free -standing tripod, ars] would

have been accompanied by a sign readily visible from a

distance stating "This cross was erected by” private

individuals without government Support for the purpose of

expressing respect for the holiday season and to afsert the

right of all religious views to be expressed on an egual basis

on public property" or words of similar import or as might

otherwise be negotiated with the Defendants. é

31. On December 3, 1993, Defendarfi Keller

wrote, and on December 6, 1993 Mr. Carr receivecs a letter

rejecting the Ku Klux Klan application to erect its cross. A

copy of that letter is attached hereto and incorporated herein

as Exhibit 5.

32. On December 9, 1993, counsel Hor the

Plaintiffs met with counsel for the Defendants, : and the

Plaintiffs filed a Notice of Appeal and Reques* for an

Expedited Hearing.

33. On December 10, 1993 the State sen®, and on

December 13, 1993 the Plaintiffs received, a letter waiving

Statutory time constraints and agreeing to an expedited

hearing.

34. To date, no hearing has been held and the

denial stands.

Count One

35. By refusing to allow the Plaintiffs to erect

their cross on Capitol Square, the Defendants (a) have

violated the guarantees of freedom of expression and free

exercise of religion secured under the First and Fourteenth

Amendments to the Constitution of the United States; (b)

have deprived the Plaintiffs of the equal protection of the

.aw: and due process of law secured under the Fourteenth

4-.endment to the Constitution of the United States; and (c)

have engaged in conduct that constitutes a bill of attainder

and an ex post facto law under Article I, Section 10 of the

Constitution of the United States.

Count Two

36. By denying a Plaintiff a permit to hold a rally

on January 15, 1994, the Defendants (a) have violated the

guarantees of freedom of expression and assembly secured

under the First and Fourteenth Amendments to the

Constitution of the United States; (b) have deprived the

Plaintiffs of the equal protection of the laws and due process

of law secured under the Fourteenth Amendment to the

Constitution of the United States; and (c) have engaged in

conduct that constitutes a bill of attainder and an ex post

facto law under Article I, Section 10 of the Constitution of

the United States.

Count Three

37. By billing the Plaintiffs and refusing to retract

the billing for security costs related to the rally, the Plaintiffs

for security costs related to the rally, Defendants (a) have

chilled and violated the guarantees of freedom of expression

and assembly secured under the First and Fourteenth

Amendments to the Constitution of the United States; (b)

have deprived the Plaintiffs of the equal protection of the

laws and due process of law secured under the Fourteenth

Amendment to the Constitution of the United States; and (c)

have engaged in conduct that constitutes a bill of attainder

and an ex post facto law under Article I, Section 10 of the

Constitution of the United States.

Count Four

38. The conduct of the Defendants set forth above

constitutes a continuing pattern of harassment and

discriminatory conduct because of the political viewpoints of

the Plaintiffs and (a) violates the free speech guarantees of

the First and Fourteenth Amendments; (b) violates the equal

protection of the laws and due process of the law guaranteed

under the Fourteenth Amendment; and (c) is tantamount to

a bill of attainder and an ex post facto law under Article I,

Section 10 of the Constitution of the United States.

VI. Injury

ah The Plaintiffs have suffered and will continue

to suffer irreparable injury by virtue of the Defendants’

actions as described above, and the Plaintiffs are without an

adequate legal remedy with which to address the

aforementioned constitutional and other violations.

52. In addition, the plaintiffs have suffered injury

by virtue of the conduct of the Defendants as described

above, including personal expense and the necessary devotion

of extraordinary time and attention by the Plaintiffs in order

to secure their rights.

WHEREFORE, Plaintiffs request the following relief:

l. That a declaratory judgment issue, and a

temporary retraining order, and preliminary and permanent

injunctions be entered ordering the Defendants to permit the

Plaintiffs to display their cross on Capitol Square.

3 That a declaratory judgment issue, and

preliminary and permanent injunctions be entered directing

the Defendants to permit the Plaintiffs to hold their January

15, 1994 rally.

i That a declaratory judgment issue, and

preliminary and permanent injunctions be entered voiding the

billing for security services.

4. That the Plaintiffs be awarded damages in the

amount of $1,000.00 for their expenditures and added time

and attention necessary to secure their rights.

> That the Plaintiffs be awarded their costs and

attorneys’ fees pursuant to 42 U.S.,C. Section 1988.

6. That the Plaintiffs have such other relief as the

court deems proper.

Respectfully submitted,

Benson A. Wolman

(0040123)

Trial Attorney

3600 Olentangy River Road,

Bldg. 501

Columbus, Ohio 43214-3913

(614) 459-4140

(614) 459-4503 (facsimile)

David Goldberger (0010292)

Of Counsel

3600 Olentangy River Road.

Bidg. 501

Columbus, Ohio 43214-3913

(614) 459-4140

(614) 459-4503 (facsimile)

Attorneys for Plaintiffs

Of Counsel

Kevin Francis O’ Neill

American Civil Liberties Union

of Ohio Foundation

1223 West Sixth Street

Cleveland, Ohio 44] 13

(216) 781-6278

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Vincent J. Pinette, et al.,

Plaintiffs, : Case No. C2-93-1162

V. : Judge Graham

Capitol Square Review and : Magistrate Judge Abel

Advisory Board. et al.

Defendants.

VERIFICATION OF COMPLAINT

STATE OF OHIO _)

) SS:

county of cuyahoga )

I, Vincent J. Pinette, hereby assert that I have read

the Complaint in this action and that the information set forth

therein is true to the best of my knowledge and belief.

Vincent J. Pinette

Sworn to me and signed via facsimile on this 17th day

of December, 1993.

Notary Public

Benson A. Wolman,

Attorney-at-Law

Notary Public - State of Ohio

My commission has no

expiration date.

Section 147.03 R.C.

Plaintiff’ s

Exhibit

INVOICE

OCTOBER 26, 1993 CAPITOL SQUARE

REVIEW AND

MICHAEL LOWE ARD

P. O. BOX 2056

WACO TX 76703 The Statehouse

Columbus, Ohio 43215

(614) 752-5209

FAX (614) 752-5209

DESCRIPTION OF SERVICES

Hon. Richard Finan

Chairman

PARKING GARAGE REVENUE LOSES $ 1,243.50

Ronald T. Keller.

Executive Director

PROTECTIVE FENCING 9,179.00

LABOR COSTS - PLANNING, SETUP, TEARDOWN,

Christopher Cook

Assistant Attorney General

Legal Counsel

MATERIALS AND CLEANUP _ 4,694.26

TOTAL AMOUNT DUE: $15,116.76

TERMS: NET - 30 DAYS FROM INVOICE DATE

PLEASE MAKE CHECK PAYABLE TO:

CSRAB

OHIO STATEHOUSE

COLUMBUS, OH 43215

CC: VINCE PINETTE

PLAINTIFF’S

Capitol Square Review & Advisory Board EXHIBIT 2

Phone: 614/752-9777 Fax: 614-/7525208

Statehouse, Columbus, Ohio 43215

APPLICATION FOR

PERMIT TO USE STATEHOUSE GROUNDS

Date:

Capitol Square Review and Advisory Board exercises

supervision and control of

Capitol Square pursuant to 123.02 O.R.C.

Capitol Square Review and Advisory Beard hereby grants

permission to:

Name of Group: Knights of the Ku Klux Klan

Representative’s name, address, phone #: Vince Pinette,

P.O. Box [ineligible] Cleve. Ohio 44102

216-631-0305

to occupy and use Capitol Square subject to the terms and

conditions below:

Date and time (set-up & clean up included): Sat Jan 15 1994

2:00 - 4:00 p.m.

Event time: 2:00 & 4:00 p.m. Portion of Capitol Square

to be occupied: north steps

Approximate number of persons to attend: 50

Type of event: Rally

Use: The user organization agrees that, during the terms

of this permit, assigned areas shall be operated under the

following procedures:

Administrative Fee: A $20 administrative fee will be

assessed for the use of any portion of the Capitol

Square facilities. Checks may be made payable to:

Capitol Square Review and Advisory Board. The

board, at its discretion, may waive fees for just

Cause.

Prescribed Activities: The user Organization shall not

permit any act inconsistent with or in violation of

local, state, or federal laws. [NO PRICE ON FREE

SPEECH]*

Bond Requirement: An optional bond may be

required based on the nature of the event. The bond

amount will be determined by the Capitol Square

Review and Advisory Board (C.S.R.A.B.) to protect

damage to the property incurred during the term of

this permit. C.S.R.A.B. has the discretion to waive

this bond requirement.

Facility Protection: The user Organization shall

maintain Capitol Square facilities in a reasonable

manner during the terms of this permit, keeping it

clean, sanitary, and free of debris. After termination

of this permit, Capitol Square areas shall be returned

to C.S.R.A.B. in the same condition as prior to the

event.

Security/Maintenance: C.S.R.A.B. security or

maintenance personnel will be used as agreed upon by

the board and permit applicant. All service charges

will be billed to the permit holder prior to the date of

10.

11.

the event. If any additional charges are incurred

during the event, the permit holder will be billed at

the completion of the event.

Vehicles/Structures: No equipment, apparatus,

machine or vehicle is permitted on Capitol buildings

or grounds without the express written permission of

the C.S.R.A.B.

Signs, Banners, Flags: The use of stickers or labels,

cellophane pressure sensitive tape, screws, nails,

sticks, poles, or any other mounting technique for

displaying signs, banners, or flags which adversely

affects the structural, [illegible], or decorative

condition of the Capitol buildings or any permanent

structure on the premises be prohibited

Supplemental Accommodation: Supplemental

accommodation such as, but not limited to:

electricity, water, litter control, and outdoor facilities

may be provided by C.S.R.A.B. These items will be

charged to the permit holder.

Interference: Use of Capitol Square facilities shall

only be done in a manner so as not to interfere or

compete with the normal business proceedings of the

Ohio General Assembly. On the days of each

proceedings, hours of public activities shall be held to

the maximum extent possible during lunch hours from

11:00 A.M. to 1:00 P.M. or after 4:30 P.M.

Sound Equipment: Use of sound projection

equipment shall be in compliance with local noise

ordinances and used in a manner so as to not interfere

with the proceedings of the General Assembly or

other activities being conducted on Capitol Square.

Electrical Hook-up: There is a $5.00 charge for

electrical hook-up. please make your check payable

to the Capitol Square Review and Advisory Board

and submit it to C.S.R.A.B. before the date of the

event.

12. Food/Beverages: No food or beverages, or

merchandise shall be sold or dispensed on Capitol

Square Grounds without the express written consent

of C.S.R.A.B. No transport vendors are permitted to

use the Capitol Square facilities. Food and beverage

dispensing shall be in accordance with all State, and

federal laws.

13. Liability: The user organization shall indemnify and

hold harmless the State of Ohio and C.S.R.A.B.

against any and all claims, demands, actions or

causes of actions, together with any and all losses,

costs or related expenses asserted by any person or

persons for bodily injury, death or Property damages

resulting from or arising out of this permitted use of

Capitol Square.

*HAND WRITTEN IN. BY

APPLICANT

CAPITOL SQUARE REVIEW AND ADVISORY BOARD

__. +~= ACCEPTED

C.S.R.A.B. only _. DENIED

Fee: $20.00 refundable C.S.R.A.B. REPRESENTATIVE

Paid: $20.00 I have read the above permit and agree

to the terms and conditions specified

Date: 10/29/93 therein

Check:

XxX

PERMIT APPLICANT

DATE — 10-29-93

PLAINTIFF’S

Capitol Square Review & Advisory Board EXHIBIT 3

Phone: 614/752-9777 Fax: 614-/7525208

Statehouse, Columbus, Ohio 43215

APPLICATION FOR

PERMIT TO USE STATEHOUSE GROUNDS

Date: 11-29-93

Capitol Square Review and Advisory Board exercises

supervision and control of

Capitol Square pursuant to 123.02 O.R.C.

Capitol Square Review and Advisory Board hereby grants

permission to:

Name of Group: Rabbi [illegible]

Representative’s name, address, phone #: [illegible]

to occupy and use Capitol Square subject to the terms and

conditions below:

Date and time (set-up & clean up included): Dec. 8, 16, 93

Event time: N/A Portion of Capitol Square to be

occupied: Grounds

Approximate number of persons to attend: N/A

Type of event: Seasonal Display

Use: The user organization agrees that, during the terms

of this permit, assigned areas shall be operated under the

following procedures:

Administrative Fee: A $20 administrative fee will be

assessed for the use of any portion of the Capitol

Square facilities. Checks may be made payable to:

Capitol Square Review and Advisory Board. The

board, at its discretion, may waive fees for just

cause..

Prescribed Activities: The user Organization shall not

permit any act inconsistent with or in violation of

local, state, or federal laws.

Bond Requirement: An optional bond may be

required based on the [illegible] of the event. The

bond amount will be determined by the Capitol

Square Review and Advisory Board (C.S.R.A.B.) to

protect damage to the property incurred during the

term of this permit. C.S.R.A.B. has the discretion to

waive this bond requirement.

Facility Protection: The user Organization shall

maintain Capitol Square facilities in a reasonable

manner during the terms of this permit, keeping it

clean, sanitary, and free of debris. After termination

of this permit, Capitol Square areas shall be returned

to C.S.R.A.B. in the same condition as prior to the

event.

Security/Maintenance: C.S.R.A.B. security or

maintenance personnel will be used as agreed upon by

the board and permit applicant. All service charges

will be billed to the permit holder prior to the date of

the event. If any additional charges are incurred

during the event, the permit holder will be billed at

the completion of the event.

Vehicles/Structures: No equipment, apparatus,

machine or vehicle is permitted on Capitol buildings

or grounds without the express written permission of

the C.S.R.A.B.

Signs, Banners, Flags: The use of stickers or labels,

cellophane pressure sensitive tape, screws, nails,

10.

ll.

ie.

‘3.

sticks, poles, or any other mounting technique for

displaying signs, banners, or flags which adversely

affects the structural, [illegible], or decorative

condition of the Capitol buildings or any permanent

structure on the premises be prohibited

Supplemental Accommodation: Supplemental

accommodation such as, but not limited to:

electricity, water, litter control, and outdoor facilities

may be provided by C.S.R.A.B. These items will be

charged to the permit holder.

Interference: Use of Capitol Square facilities shall

only be done in a manner so as not to interfere or

compete with the normal business proceedings of the

Ohio General Assembly. On the days of each

proceedings, hours of public activities shall be held to

the maximum extent possible during lunch hours from

11:00 A.M. to 1:00 P.M. or after 4:30 P.M.

Sound Equipment: Use of sound projection

equipment shall be in compliance with local noise

ordinances and used in a manner so as to not interfere

with the proceedings of the General Assembly or

other activities being conducted on Capitol Square.

Electrical Hook-up: There is a $5.00 charge for

electrical hook-up. please make your check payable

to the Capitol Square Review and Advisory Board

and submit it to C.S.R.A.B. before the date of the

event.

Food/Beverages: No food or beverages, or

merchandise shall be sold or dispensed on Capitol

Square Grounds without the express written consent

of C.S.R.A.B. No transport vendors are permitted to

use the Capitol Square facilities. Food and beverage

dispensing shall be in accordance with all state, and

federal laws.

Liability: The user organization shall indemnify and

hold harmless the State of Ohio and C.S.R.A.B.

against any and all claims, demands, actions or

Causes of actions, together with any and all losses,

costs or related expenses asserted by any person or

persons for bodily injury, death or property damages

resulting from or arising out of this permitted use of

Capitol Square.

CAPITOL SQUARE REVIEW AND ADVISORY BOARD

X ACCEPTED (RTK)

C.S.R.A.B. use only aa DENIED

Fee: $20.00 C.S.R.A.B. REPRESENTATIVE

Paid: $20.00 I have read the above permit and agree

to the terms and conditions specified

Date: 11/29/93 therein

Clerk: Cash

PERMIT APPLICANT

DATE _ 11/29/93

PLAINTIFF’S

Capitol Square Review & Advisory Board EXHIBIT 4

Phone: 614/752-9777 Fax: 614-/7525208

Statehouse, Columbus, Ohio 43215

APPLICATION FOR

PERMIT TO USE STATEHOUSE GROUNDS

Date:

Capitol Square Review and Advisory Board exercises

supervision and control of

Capitol Square pursuant to 123.02 O.R.C.

Capitol Square Review and Advisory Board hereby grants

permission to:

Name of Group: Knights of the Ku Klux Klan (Realm of

Ohio)

Representative’s name, address, phone #: Donnie A. Carr

(216) 631-0305

P.O. Box 28705, Columbus, Ohio, 43228-0705

to occupy and use Capitol Square subject to the terms and

conditions below:

Date and time (set-up & clean up included): 12-8-93

Event time: All day 24 hours Dec. 8 - 24, 1993 Portion

of Capitol Square to be occupied: State House Lawn

(Front)

Approximate number of persons to attend:

Type of event: Erect a Cross for Christmas

Use: The user organization agrees that, during the terms

of this permit, assigned areas sball be operated under the

following procedures:

i. Administrative Fee: A $20 administrative fee will be

assessed for the use of any portion of the Capitol

Square facilities. Checks may be made payable to:

Capitol Square Review and Advisory Board. The

board, at its discretion, may waive fees for just

cause.

a Prescribed Activities: The user organization shall not

permit any act inconsistent with or in violation of

local, state, or federal laws. (DOES NOT

APPLY)

3.X

Bond Requirement: An optional bond may be

required based on the nature of the event. The bond

amount will be determined by the Capitol Square

Review and Advisory Board (C.S.R.A.B.) to protect

damage to the property incurred during the term of

this permit. C.S.R.A.B. has the discretion to waive

this bond requirement.

Facility Protection: The user Organization shall

maintain Capitol Square facilities in a reasonable

manner during the terms of this permit, keeping it

clean, sanitary, and free of debris. After termination

of this permit, Capitol Square areas shall be returned

to C.S.R.A.B. in the same condition as prior to the

event.

Security/Maintenance: C.S.R.A.B. security or

maintenance personnel will be used as agreed upon by

the board and permit applicant. All service charges

will be billed to the permit holder prior to the date of

the event. If any additional charges are incurred

during the event, the permit holder will be billed at

the completion of the event.

Vehicles/Structures: No equipment, apparatus,

machine or vehicle is permitted on Capitol buildings

or grounds without the express written permission of

the C.S.R.A.B.

Signs, Banners, Flags: The use of stickers or labels,

cellophane pressure sensitive tape, screws, nails,

sticks, poles, or any other mounting technique for

displaying signs, banners, or flags which adversely

affects the structural, [illegible], or decorative

condition of the Capitol buildings or any permanent

structure on the premises be prohibited

Supplemental Accommodation: Supplemental

accommodation such as, but not limited to:

electricity, water, litter control, and outdoor facilities

may be provided by C.S.R.A.B. These items will be

10.

11.

12.

13.

charged to the permit holder.

Interference: Use of Capitol Square facilities shall

only be done in a manner so as not to interfere or

compete with the normal business proceedings of the

Ohio General Assembly. On the days of each

proceedings, hours of public activities shall be held to

the maximum extent possible during lunch hours from

11:00 A.M. to 1:00 P.M. or after 4:30 P.M.

Sound Equipment: Use of sound projection

equipment shall be in compliance with local noise

ordinances and used in a manner so as to not interfere

with the proceedings of the General Assembly or

other activities being conducted on Capitol Square.

Electrical Hook-up: There is a $5.00 charge for

electrical hook-up. please make your check payable

to the Capitol Square Review and Advisory Board

and submit it to C.S.R.A.B. before the date of the

event.

Food/Beverages: No food or beverages, or

merchandise shall be sold or dispensed on Capitol

Square Grounds without the express written consent

of C.S.R.A.B. No transport vendors are permitted to

use the Capitol Square facilities. Food and beverage

dispensing shall be in accordance with all state, and

federal laws.

Liability: The user organization shall indemnify and

hold harmless the State of Ohio and C.S.R.A.B.

against any and all claims, demands, actions or

causes of actions, together with any and all losses,

costs or related expenses asserted by any person or

persons for bodily injury, death or property damages

resulting from or arising out of this permitted use of

Capitol Square.

CAPITOL SQUARE REVIEW AND ADVISORY BOARD

__. += ACCEPTED

C.S.R.A.B. only > &

DENIED

Fee: $20.00 nonrefundable C.S.R.A.B.

REPRESENTATIVE

Paid: $20.00 I have read the above permit and agree

Date: 1/29/93 to the terms and conditions specified

therein

Check: Cash

PERMIT APPLICANTT{illegible]

DATE — 11-29-93

PLAINTIFF’S

EXHIBIT 5

CAPITOL SQUARE

REVIEW AND

ADVISORY BOARD

The Statehouse

Columbus, Ohio 43215

(614) 752-9777

FAX (614) 752-5209

Hon. Richard Finan

Chairman

Ronald T. Keller

Executive Director

Christopher Cook

Assistant Attorney

General

Legal Counsel

December 3, 1993

Donnie A. Carr

P.O. Box 28705

Columbus, Ohio 43220-0705

Dear Mr. Carr:

Pursuant to Ohio Administrative Code 128-4-02(B),

the Capitol Square Review and Advisory Board hereby gives

notice that it must deny your application to erect a cross on

the Statehouse Grounds between December 8, 1993 and

December 24, 1993. This decision was made upon the

advice of counsel, in a good faith attempt to comply with the

Ohio and United States Constitutions, as they have been

interpreted in relevant decisions by the Federal and State

Courts. We would direct your attention in particular to

controlling decisions recently rendered by the United States

Supreme Court under the First Amendment to the United

States Constitution.

In addition, I assume you are aware that we placed a

telephone call to you earlier this week, seeking more

information about the precise nature of the display you were

requesting the Board to approve. We have not yet heard

from you in response to that call.

Donnie A. Carr

December 3, 1993

Page Two

Pursuant to Chapter 119, Ohio Revised Code and

128-4-04 of the Ohio Administrative Code, you are hereby

advised that you may request a hearing on this matter. If

your wish to request such a hearing, that request must be

made in writing and received by the Capitol Square Review

and Advisory Board within thirty (30) days of the date of

mailing of this notice. This notice was mailed on the date

indicated above.

You are further advised that you are entitled to appear

in person, or by your attorney, or both, or you may present

your position, arguments, or contentions in writing, and that

at the hearing you may present evidence and examine

witnesses appearing for and against you.

In the event there is no request for such hearing

ee ee a

received within thirty (30) days of the date of mailing of this

notice, the Capitol Square Review and Advisory Board will

consider this matter closed.

Section 119.07, Ohio Revised Code, in part states:

"Whenever a party requests a hearing

in accordance with this section and

Section 119.06 of the Ohio Revised

Code, the agency shall immediately set

the date, time, and place for such

hearing and forthwith notify the party

thereof. The date set for such hearing

shall be within fifteen (15) days, but

no earlier than seven (7) days, after

the party has requested a hearing,

unless otherwise agreed to by the

agency and the party.”

Sincerely,

RON KELLER

Executive Director

Capitol Square Review and

Advisory Board

Registered Mail

Return Receipt Requested

CERTIFICATE OF SERVICE

omitted in printing

IN THE STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Vincent J. Pinette, et al.,

Plaintiffs, ) Case No. C2-93-1162

v. |

Judge Graham

Capitol Square Review and

Advisory Board, et al.,

Defendants.

STIPULATIONS OF FACT

The parties, through their undersigned counsel, have

agreed to submit the following stipulations of fact in order to

facilitate resolution of plaintiffs’ motion for temporary

restraining order and preliminary injunction. The parties have

agreed that to the extent these stipulations reference or quote

from any documents, if these stipulations are in tension with

or otherwise inconsistent with the text of any such document,

these stipulations do not purport to override the text of any

such document. Although these stipulations are intended to

facilitate resolution of this matter, the parties have agreed

that they are not necessarily exhaustive of the factual record

to be presented to this Court at the hearing in the form of

affidavits or testimony, though the parties have agreed

between themselves to make a good-faith effort to limit the

amount of testimony, if any, that will be necessary to resolve

this matter. If affidavits are submitted to the Court for

purposes of presenting evidence in this matter, the parties

have reserved all of their rights to object to the admissibility

or the use of such affidavits on any defensible legal grounds.

l. Counsel for all parties have agreed and have

so represented to this Court that the hearing on plaintiffs’

motion for temporary restraining order and preliminary

injunction that is scheduled for December 20, 1993, will

address only the claims raised in Count One of Plaintiffs’

Complaint.

y & Plaintiff Vincent J. Pinette is the Chief

Executive Officer of the Knights of the Ku Klux Klan (Ohio

Realm). Plaintiff Donnie A. Carr is the Unit Coordinator for

Columbus, Ohio of the knights of the Ku Klux Klan (Ohio

Realm). Plaintiff Knights of the Ku Klux Klan (Ohio Realm)

is an unincorporated association whose members reside in the

State of Ohio.

ce Defendant Capitol Square Review and

Advisory Board is the state board chartered under Section

123.022 of the Ohio Revised Code that regulates the use of

the Capitol Square.

4. Defendant Ronald T. Keller is the Executive

Director of the Capitol Square Review and Advisory Board.

Defendant Daniel Shellenbarger is the spokesperson for the

Board. Defendant Richard H. Finan, an Ohio State Senator,

is the chairperson of the Board.

> The parties stipulate that venue is proper in

this Court.

6. The Capitol Square, which is defined by law

in Section 123.022(I) of the Ohio Revised Code, comprises

an entire city block in downtown Columbus, Ohio, located

south of Broad Street, north of State Street, east of High

Street, and west of Third Street.

‘2 The Capitol Square is owned by the State of

Ohio.

8. The Capitol Square is the seat of Ohio state

government and is the site of the Ohio Statehouse, which is

Ohio’s state capitol building.

9. The Ohio Statehouse is the building in which

the Ohio House of Representatives and the Ohio Senate meet

in official session to carry out the duties constitutionally

conferred upon the legislative branch of Ohio’s state

government.

10. The Governor and certain of the statewide

elected officials also have offices in the Ohio Statehouse, and

other offices are located there as well.

11. The Ohio Statehouse has been continually

located on the Capitol Square for well over a century, since

its construction was originally completed in 1861.

12. The Ohio Statehouse is a large rectangular

building that centers the Capitol Square. A much taller

rotunda rises above the middle of the rectangular building

and is ordinarily topped by the United States and Ohio flags.

An annex building is attached to the Statehouse on its eastern

side. On its western side, the area between the Ohio

Statehouse and High Street is one city block long and

approximately 240 feet wide.

13. | The Ohio Statehouse is a distinctive building

in the center of downtown Columbus, which stands as one of

the outstanding and unusual examples of classical Doric

architecture in the entire United States.

14. | The Ohio Statehouse is the dominant feature

of the Capitol Square. It is plainly and unavoidably visible

from every vantage point upon the Capitol Square.

15. The Capitol Square Review and Advisory

Board was created by the enactment of Senate Bill 381,

which took effect on January 15, 1993.

16. |The Board is charged in Section 123.022 of

the Ohio Revised Code with specific powers and duties,

among which are to operate the Capitol Square and to

exercise sole authority in regulating all uses of the Capitol

Square.

17. The Board has implemented its statutory

mandate in part by adopting administrative rules pursuant to

Chapter 119 of the Ohio Revised Code. Those rules became

effective on October 29, 1993, after receiving final approval

from the Joint Committee on Agency Rule Review. Those

rules constitute Chapter 128 of the Ohio Administrative

Code.

18. The Board meets at times and in a manner as

the Board may prescribe.

19. Between meetings of the Board, the Executive

Director conducts the ordinary and everyday affairs on behalf

of the Board.

20. In recent years, certain displays have been

placed upon the Capitol Square for limited periods during the

month of December.

21. For the past several years, the displays placed

upon the Capitol Square for limited periods during the month

of December have included a Christmas tree and a

free-standing Hanukkah menorah, which is a nine-branch

candelabrum that serves as the primary visual symbol of the

Jewish holiday of Hannukah and that has both religious and

secular significance.

22. Defendants represent to this tribunal that to the

best of their knowledge upon reasonable efforts made to

ascertain the facts, no permit has previously been sought or

granted to erect a Latin cross Upon the Capitol Square as

part of these displays.

23. In recent years, Capitol Square has been the

site of numerous assemblies.

24. On November 18, 1993, the Board met and

voted not to permit any displays upon the Capitol Square

during the month of December, 1993. This vote was invalid

under the governing statute, Section 123.022(C) of the Ohio

Revised Code, as it was not approved by five members of

the Board.

25. | Numerous public officials and private citizens

communicated to the Board their disagreement with the

action taken by the Board at its November 18, 1993 meeting.

The Board also sought and received advice from counsel

about the legal ramifications of that action.

26. On November 23, 1993, the Board met and

voted to approve the displays of a Christmas tree and a

menorah upon the Capitol Square.

27. On November 29, 1993, Rabbi Capland

submitted an application for a permit to display a menorah

upon the Capitol Square from December 8-16, 1993. The

permit application that was submitted by Rabbi Capland

describes the type of event as a "Seasonal Display." See Exh.

3 (attached). The application was granted the same day.

28. On November 29, 1993, Donnie Carr

submitted an application on behalf of the Knights of the Ku

Klux Klan (Realm of Ohio) for a permit to display a cross

upon the Capitol Square from December 8-24, 1993. The

permit application that was submitted by ME.. Carr describes

the type of event as to "Erect a Cross for Christmas." See

Exh. 4 (attached).

29. On December 3, 1993, Executive Director

Keller denied the application for a permit to erect a cross

upon the Capitol Square.

30. In a letter faxed to Mr. Carr on December 3,

1993, Executive Director Keller stated that the decision to

deny the permit requested to erect a cross upon the Capitol

Square "was made upon the advice of counsel, in a good

faith attempt to comply with the Ohio and United States

Constitutions, as they have been interpreted in relevant

decisions by the Federal and State Courts. We would direct

your attention in particular to controlling decisions recently

rendered by the United States Supreme Court under the First

Amendment to the United States Constitution." The letter

also set forth relevant information about the right of

administrative appeal that is provided to an applicant by Ohio

law under Chapter 119 of the Revised Code. See Exh. 5

(attached).

31. On December 9, 1993, Benson A. Wolman

submitted a Notice of Appeal to the Board on behalf of his

client, the Knights of the Ku Klux Klan, seeking

administrative review of the decision to deny the permit

requested to display a cross upon the Capitol Square. The

submission also requested an expedited appeal and hearing on

the issue. See Exh. 6 (attached).

32. Ina separate letter directed to counsel for the

Board, also dated December 9, 1993, Mr. Wolman provided

further information about the proposed display of a cross

upon the Capitol Square. Mr. Wolman indicated that the

cross "would be approximately ten feet high, six feet across,

made from 2 x 6 lumber, painted white, secured upright by

a free-standing tripod, and accompanied by a sign, readable

from a distance, ’This cross was erected by private

individuals without government support for the purpose of

expressing respect for the holiday season and to assert the

right of all religious views to be expressed on an equal basis

on public property.”" Mr. Wolman also stated in the letter

that "some matters, such as the contents of the sign, are open

to negotiation." See Exh. 7 (attached).

33. On December 10, 1993, Executive Director

Keller notified Mr. Wolman that the Notice of Appeal as

submitted was defective under the governing administrative

rules. He waived any such defects, however, except to

require that Mr. Wolman submit immediately the "concise

statement of the reason the appeal should be granted"

required under the governing rules as an essential foundation

for proceeding upon the administrative appeal. See Exh. 8

(attached).

34. In the December 10, 1993 letter to Mr.

Wolman, Executive Director Keller also noted that he was

waiving all time constraints otherwise imposed upon the

100

administrative appeal process by Ohio statute, in order to

permit an immediate hearing upon the administrative appeal

once Mr. Wolman submitted the required statement of the

reason the appeal should be granted. See id.

35. In the December 10, 1993 letter to Mr. Wolman,

Executive Director Keller also noted that the Board had

never before received a request for "an administrative

hearing relating to the issuance of a permit order," and thus

had never before arranged for or conducted any such

administrative hearing. See id.

36. On December 13, 1993, Mr. Wolman noted

the Board’s "prompt response" and submitted to the Board on

behalf of his clients a "concise statement of the reasons the

appeal should be granted." The statement sets forth the

applicant’s claim that the denial of the permit has "no basis

in law or fact" and is contrary to various rights asserted by

the applicant under the United States and Ohio Constitutions.

See Exh. 9 (attached).

37. At the close of business on December 13,

1993, Mr. Wolman transmitted a letter to the counsel for the

Board, seeking to arrange a mutually convenient time for the

requested administrative hearing and offering to discuss

possible stipulations to simplify the matter for resolution. In

that same letter, Mr. Wolman also sought to obtain various

specified documents from counsel for the Board for use in

this proceeding. See Exh. 10 (attached).

38. On December 14, 1993, the Board retained

attorney Keith S. Mesirow of Columbus to serve as hearing

examiner in order to conduct an administrative hearing on

this matter as provided in Section 119.09 of the Revised

Code, and notified Mr. Mesirow to be prepared to conduct

a hearing as scheduled by agreement between the parties, but

101

possibly as soon as Friday, December 17, 1993.

39. Also on December 14, 1993, counsel for the

Board provided Mr. Wolman with certain documents

responsive to the requests made in the letter received from

Mr. Wolman at the close of business on December 13,

1993.

40. Also on December 14, 1993, counsel for both

parties agreed to meet on December 15, 1993, in an effort to

reach agreement on procedures and stipulations to facilitate

a prompt resolution of this matter.

41. On December 15, 1993, and again on

December 16, 1993, counsel for both parties met and

discussed possible stipulations and procedures to facilitate

and expedite the resolution of this matter. Counsel ultimately

reached agreement upon the stipulations as set forth here.

42. On December 16, 1993, the denial of the

permit application for the Knights of the Ku Klux Klan to

erect a cross upon the Capitol Square was set for an

administrative hearing, pursuant to Chapter 119 of the

Revised Code, to be held at 2:00 p.m. on December 17,

1993. Under state law, the hearing examiner is empowered

to issue a written report setting forth his findings of fact and

conclusions of law and a recommendation of the action to be

taken by the agency. See Exh. 11 (attached).

43. A Christmas tree has been displayed upon the

Capitol Square from December 7, 1993 to the present and

remains on display currently. A menorah was displayed upon

the Capitol Square from December 8, 1993 until December

16, 1993 and is no longer on display there.

44. In recent years, and again this year, a large

102

Latin cross composed of white lights has been displayed

throughout the holiday season on all four sides of a privately

owned building known as the LeVeque Tower, one of the

tallest buildings in Columbus, which is located one block

northwest of Capitol Square.

Respectfully submitted,

BENSON A. WOLMAN RICHARD A. CORDRAY

(0040123) (0038034)

Trial Attorney Trial Attorney

DAVID GOLDBERGER CHRISTOPHER S. COOK

(0010292) (0053067)

Of Counsel ANDREW S. BERGMAN

Moot, Copes & Stanton (0054582)

3600 Olentangy River Road Of Counsel

Building 501 OH Attorney General’s Office

Columbus, Ohio 43214-3913 State Office Tower

(614) 459-4140 30 East Broad Street

(614) 459-4140 Columbus, Ohio 43215-3428

(614) 466-5026

COUNSEL FOR PLAINTIFFS

COUNSEL FOR

DEFENDANTS

Capitol Square Review & Advisory Board EXHIBIT 3

Phone: 614/752-9777 Fax: 614-/7525208

Statehouse, Columbus, Ohio 43215

APPLICATION FOR

PERMIT TO USE STATEHOUSE GROUNDS

Date: 11-29-93

103

Capitol Square Review and Advisory Board exercises

supervision and control of

Capitol Square pursuant to 123.02 O.R.C.

Capitol Square Review and Advisory Board hereby grants

permission to:

Name of Group: Rabbi [illegible]

Representative’s name, address, phone #: [illegible]

to occupy and use Capitol Square subject to the terms and

conditions below:

Date and time (set-up & clean up included): Dec. 8, 16, 93

Event time: N/A Portion of Capitol Square to be

occupied: Grounds

Approximate number of persons to attend: N/A

Type of event: Seasonal Display

Use: The us organization agrees that, during the terms of

this permit, assigned areas shall be operated under the

following procedures:

l. Administrative Fee: A $20 administrative fee will be

assessed for the use of any portion of the Capitol

Square facilities. Checks may be made payable to:

Capitol Square Review and Advisory Board. The

board, at its discretion, may waive fees for just

Cause..

2. Prescribed Activities: The user organization shall not

permit any act inconsistent with or in violation of

local, state, or federal laws.

a Bond Requirement: An optional bond may be

104

——EEEEE—eee aa

required based on the [illegible] of the event. The

bond amount will be determined by the Capitol

Square Review and Advisory Board (C.S.R.A.B.) to

protect damage to the property incurred during the

term of this permit. C.S.R.A.B. has the discretion to

waive this bond requirement.

4. Facility Protection: The user organization shall

maintain Capitol Square facilities in a reasonable

manner during the terms of this permit, keeping it

clean, sanitary, and free of debris. After termination

of this permit, Capitol Square areas shall be returned

to C.S.R.A.B. in the same condition as prior to the

event.

3. Security/Maintenance: C.S.R.A.B. security or

maintenance personnel will be used as agreed upon by

the board and permit applicant. All service charges

will be billed to the permit holder prior to the date of

the event. If any additional charges are incurred

during the event, the permit holder will be billed at

the completion of the event.

6. Vehicles/Structures: No equipment, apparatus,

machine or vehicle is permitted on Capitol buildings

or grounds without the express written permission of

the C.S.R.A.B.

x J Signs, Banners, Flags: The use of stickers or labels,

cellophane pressure sensitive tape, screws, nails,

sticks, poles, or any other mounting technique for

displaying signs, banners, or flags which adversely

affects the structural, [illegible], or decorative

condition of the Capitol buildings or any permanent

structure on the premises be prohibited

8. Supplemental Accommodation: Supplemental

accommodation such as, but not limited to:

electricity, water, litter control, and outdoor facilities

may be provided by C.S.R.A.B. These items will be

charged to the permit holder.

105

10.

11.

12.

13.

Interference: Use of Capitol Square facilities shall

only be done in a manner so as not to interfere or

compete with the normal business proceedings of the

Ohio General Assembly. On the days of each

proceedings, hours of public activities shall be held to

the maximum extent possible during lunch hours from

11:00 A.M. to 1:00 P.M. or after 4:30 P.M.

Sound Equipment: Use of sound projection

equipment shall be in compliance with local noise

ordinances and used in a manner so as to not interfere

with the proceedings of the General Assembly or

other activities being conducted on Capitol Square.

Electrical Hook-up: There is a $5.00 charge for

electrical hook-up. please make your check payable

to the Capitol Square Review and Advisory Board

and submit it to C.S.R.A.B. before the date of the

event.

Food/Beverages: No food or beverages, or

merchandise shall be sold or dispensed on Capitol

Square Grounds without the express written consent

of C.S.R.A.B. No transport vendors are permitted to

use the Capitol Square facilities. Food and beverage

dispensing shall be in accordance with all State, and

federal laws.

Liability: The user organization shall indemnify and

hold harmless the State of Ohio and C.S.R.A.B.

against any and all claims, demands, actions or

causes of actions, together with any and all losses,

costs or related expenses asserted by any person or

persons for bodily injury, death or property damages

resulting from or arising out of this permitted use of

Capitol Square.

106

CAPITOL SQUARE REVIEW AND ADVISORY BOARD

X ACCEPTED (RTK)

C.S.R.A.B. use only DENIED

Fee: $20.00 C.S.R.A.B. REPRESENTATIVE

Paid: $20.00 I have read the above permit and agree to

Date: 11/29/93 the terms and conditions specified therein

Clerk: Cash

PERMIT APPLICANT

DATE — 11/29/93

Capitol Square Review & Advisory Board EXHIBIT 4

Phone: 614/752-9777 Fax: 614-/7525208

Statehouse, Columbus, Ohio 43215

APPLICATION FOR

PERMIT TO USE STATEHOUSE GROUNDS

Date:

Capitol Square Review and Advisory Board exercises

supervision and control of

Capitol Square pursuant to 123.02 O.R.C.

Capitol Square Review and Advisory Board hereby grants

permission to:

Name of Group: Knights of the Ku Klux Klan (Realm of

Ohio)

107

Representative’s name, address, phone #: Donnie A. Carr

(216) 631-0305

P.O. Box 28705, Columbus, Ohio, 43228-0705

to occupy and use Capitol Square subject to the terms and

conditions below:

Date and time (set-up & clean up included): 12-8-93

Event time: All day 24 hours Dec. 8 - 24, 1993 Portion

of Capitol Square to be occupied: StateHouse Lawn

(Front)

Approximate number of persons to attend:

Type of event: Erect a Cross for Christmas

Use: The user organization agrees that, during the terms

of this permit, assigned areas shall be operated under the

following procedures:

;; Administrative Fee: A $20 administrative fee will be

assessed for the use of any portion of the Capitol

Square facilities. Checks may be made payable to:

Capitol Square Review and Advisory Board. The

board, at its discretion, may waive fees for just

Cause..

Yd Prescribed Activities: The user Organization shall not

permit any act inconsistent with or in violation of

local, state, or federal laws. (DOES NOT

APPLY)

3.X Bond Requirement: An optional bond may be

required based on the nature event. The bond amount

will be determined by the Capitol Square Review and

Advisory Board (C.S.R.A.B.) to protect damage to

the property incurred during the term of this permit.

108

C.S.R.A.B. has the discretion to waive this bond

requirement.

4. Facility Protection: |The userorganization shall

maintain Capitol Square facilities in a reasonable

manner during the terms of this permit, keeping it

clean, sanitary, and free of debris. After termination

of this permit, Capitol Square areas shall be returned

to C.S.R.A.B. in the same condition as prior to the

event.

8 Security/Maintenance: C.S.R.A.B. security or

maintenance personnel will be used as agreed upon by

the board and permit applicant. All service charges

will be billed to the permit holder prior to the date of

the event. If any additional charges are incurred

during the event, the permit holder will be billed at

the completion of the event.

6. Vehicles/Structures: No equipment, apparatus,

machine or vehicle is permitted on Capitol buildings

or grounds without the express written permission of

the C.S.R.A.B.

7, Signs, Banners, Flags: The use of stickers or labels,

cellophane pressure sensitive tape, screws, nails,

sticks, poles, or any other mounting technique for

displaying signs, banners, or. flags which adversely

affects the structural, [illegible], or decorative

condition of the Capitol buildings or any permanent

structure on the premises be prohibited

8. Supplemental Accommodation: Supplemental

accommodation such as, but not limited to:

electricity, water, litter control, and outdoor facilities

may be provided by C.S.R.A.B. These items will be

charged to the permit holder.

9. Interference: Use of Capitol Square facilities shall

only be done in a manner so as not to interfere or

compete with the normal business proceedings of the

Ohio General Assembly. On the days of each

109

OEE

10.

I].

12.

13.

proceedings, hours of public activities shall be held to

the maximum extent possible during lunch hours from

11:00 A.M. to 1:00 P.M. or after 4:30 P.M.

Sound Equipment: Use of sound projection

equipment shall be in compliance with local noise

ordinances and used in a manner so as to not interfere

with the proceedings of the General Assembly or

other activities being conducted on Capitol Square.

Electrical Hook-up: There is a $5.00 charge for

electrical hook-up. please make your check payable

to the Capitol Square Review and Advisory Board

and submit it to C.S.R.A.B. before the date of the

event.

Food/Beverages: No food or beverages, or

merchandise shall be sold or dispensed on Capitol

Square Grounds without the express written consent

of C.S.R.A.B. No transport vendors are permitted to

use the Capitol Square facilities. Food and beverage

dispensing shall be in accordance with all State, and

federal laws.

Liability: The user organization shall indemnify and

hold harmless the State of Ohio and C.S.R.A.B.

against any and all claims, demands, actions or

Causes of actions, together with any and all losses,

costs or related expenses asserted by any person or

persons for bodily injury, death or property damages

resulting from or arising out of this permitted use of

Capitol Square.

CAPITOL SQUARE REVIEW AND ADVISORY BOARD

ACCEPTED

C.S.R.A.B. only ~_X ~_‘-DENIED

Fee: $20.00 nonrefundable

—

C.S.R.A.B. REPRESENTATIVE

110

Paid: $20.00 I have read the above permit and agree

Date: 1/29/93 to the terms and conditions specified

Check: Cash therein.

PERMIT APPLICANT

DATE _— 11-29-93

EXHIBIT 5

AP ARE

REVIEW AND

ADVISOR ARD

The Statehouse

Columbus, OH 43215

(614) 752-9777

FAX (614) 752-5209

Hon. Richard Finan

Chairman

Ronald T. Keller

Executive Director

Christopher Cook

Assistant Attorney

General

Legal Counsel

December 3, 1993

Donnie A. Carr

P.O. Box 28705

Columbus, Ohio 43220-0705

111

Dear Mr. Carr:

Pursuant to Ohio Administrative Code 128-4-02(B),

the Capitol Square Review and Advisory Board hereby gives

notice that it must deny your application to erect a cross on

the Statehouse Grounds between December 8, 1993 and

December 24, 1993. This decision was made upon the

advice of counsel, in a good faith attempt to comply with the

Ohio and United States Constitutions, as they have been

interpreted in relevant decisions by the Federal and State

Courts. We would direct your attention in particular to

controlling decisions recently rendered by the United States

Supreme Court under the First Amendment to the United

States Constitution.

Donnie A. Carr

December 3, 1993

Page Two

In addition, I assume you are aware that we placed a

telephone call to you earlier this week, seeking more

information about the precise nature of the display you were

requesting the Board to approve. We have not yet heard

from you in response to that call.

Pursuant to Chapter 119, Ohio Revised Code and

128-4-04 of the Ohio Administrative Code, you are hereby

advised that you may request a hearing on this matter. If

you wish to request such a hearing, that request must be

made in writing and received by the Capitol Square Review

and Advisory Board within thirty (30) days of the date of

mailing of this notice. This notice was mailed on the date

indicated above.

You are further advised that you are entitled to appear

in person, or by your attorney, or both, or you may present

your position, arguments, or contentions in writing, and that

at the hearing you may present evidence and examine

witnesses appearing for and against you.

In the event there is no request for such hearing

received within thirty (30) days of the date of mailing of this

notice, the Capitol Square Review and Advisory Board will

consider this matter closed.

Section 119.07, Ohio Revised Code, in part states:

"Whenever a party requests a hearing

in accordance with this section and

Section 119.06 of the Ohio Revised

Code, the agency shall immediately set

the date, time, and place for such

hearing and forthwith notify the party

thereof. The date set for such hearing

shall be within fifteen (15) days, but

no earlier than seven (7) days, after

the party has requested a hearing,

unless otherwise agreed to by the

agency and the party."

Sincerely,

RON KELLER

Executive Director

Capitol Square Review and

Advisory Board

Registered Mail

Return Receipt Requested

113

EXHIBIT 6

MOOT, COPE &STANTON

A Legal Professional Association Phillip R. Moots

Jon M. Cope

3600 Olentangy River Road Elizabeth M. Stanton

Columbus, Ohio 43214-3913

(614) 459-4140 Wanda L. Carter

Telefax Benson A. Wolman

(614) 459-4503 Catherine A.

Cunningham

9 December 1993

VIA FACSIMILE 752-5209 AND FIRST CLASS MAIL

Capitol Square Review and Advisory Board

Ronald T. Keeler, Executive Director

Hon. Richard H. Final, Chairperson

The Statehouse

Columbus, Ohio 43215

RE: Appeal of December 3,

1993. denial of Permit

Application of Knights of

the K Klux Klan to display

cross; Request for Expedited

Hearing

Dear Mr. Keeler and Senator Finan:

This constitutes a Notice of Appeal from, and a

request for an expedited appeal and hearing on, the

December 3, 1993 denial of the November 29, 1993

Application by the Knights of the K Klux Klan (Ohio Realm)

for a Permit to Use Statehouse Grounds to display a cross

from December 8, 1993 through December 24, 1993.

114

This notice has been discussed with your counsel and

is being sent simultaneously to counsel via facsimile and first

class mail.

Respectfully submitted,

Benson A. Wolman

David Goldberger

Attorneys for Appellant

oC: Christopher Cook, Assistant Attorney General

Andrew Sutter, Assistant Attorney General

Richard A. Cordray, State Solicitor

Lee Fisher, Attorney General

Donnie A. Carr, Unit Coordinator, Knights of the

KKK (Ohio)

Vincent J. Pinette, Grand Titan, Knights of the

KKK (Qhio)

115

EXHIBIT 7

MOOT, COPE & STANTON

A Legal Professional Association

Phillip R. Moots

Jon M. Cope

3600 Olentangy River Road Elizabeth M. Stanton

Columbus, Ohio 43214-3913

(614) 459-4140 Wanda L. Carter

Telefax Benson A. Wolman

(614) 459-4503 Catherine A.

Cunningham

9 December 1993

VIA FACSIMILE 752-5209 AND FIRST CLASS MAIL

Christopher Cook, Assistant Attorney General

Andrew Sutter, Assistant Attorney General

Richard A. Cordray, State Solicitor

Lee Fisher, Attorney General

30 East Broad Street

Columbus, Ohio 43266-0410

Re: Capitol Square Review and

Advisory Board Denial of

Permit Application of

Knights of the Ku Klux Klan

to display cross; Request for

Expedited Hearing

Gentlemen:

It was a pleasure meeting with you this afternoon.

Subsequent to that gathering, we met with Mr. Pinette and

Mr. Carr.

116

With regard to the reference to a telephone call in the

December 3, letter from Ron Keller, I advised Chris Cook

by telephone this afternoon, and this is to confirm that, Mr.

Pinette and Mr. Carr state that:

1) There was, indeed, a call from Mr. Shellenbarger to

the Cleveland number;

2) Mr. Pinette was out of town and Mrs. Pinette gave

the caller the number of the National headquarters in

Arkansas to call for further information;

3) Mr. Carr was apprised of the call on the same day

and returned the call to Mr. Shellenbarger on that

same day;

4) When he called Mr. Shellenbarger, Mr. Carr

indicated who he was and that he had the requested

information; he was informed by a secretary that Mr.

Shellenbarger was out and that she did not know

when he would return; and

5) Mr. Pinette and Mr. Carr are not aware of any call to

the National headquarters, if one was made, nor of

any return call to the Cleveland number.

Letter to Christopher Cook et al.

December 9, 1993

Page Two

In response to your inquiry as to the description

(including the size, shape, material, and manner of securing

the display), Mr. Carr advises us that the cross would be

approximately ten feet high, six feet across, made from 2 x

117

6 lumber, painted white, secured upright by a free-standing

tripod, and accompanied by a sign, readable from a distance,

"This cross was erected by private individuals without

government support for the purpose of expressing respect for

the holiday season and to assert the right of all religious

views to be expressed on an equal basis on public property."

It is our understanding that some matters, such as the

contents of the sign, are open to negotiation.

Accompanying this letter is a copy of the Notice of

Appeal and Request for Expedited Hearing which we

discussed today; it was sent via facsimile and first class mail

to the Board today. If you have any suggestions as to

alternative means of resolving this matter, please let us

know.

Cordially,

Benson A. Wolman

David Goldberger

enclosure: Notice of Appeal

oo: Vincent J. Pipette

Donnie A. Carr

3157\004\LTRCOO01.BAW

EXHIBIT 8

December 10, 1993

118

Mr. Benson A. Wolman CAPITOL SQUARE

Moots, Cope & Stanton REVIEW AND

3600 Olentangy River Road ADVISORY BOARD

Columbus, Ohio 43214-3913

Telefax: (614) 459-4503 The Statehouse

Columbus, OH 43215

VIA FACSIMILE AND ORDINARY MAIL

(614) 752-5209

FAX (614) 752-5209

Re: Notice of Appeal from Denial of Permit

to Display Cross on Capitol Square

Hon. Richard Finan

Chairman

Ronald T. Keller

Executive Director

Christopher Cook

Assistant Attorney

General

Legal Counsel

Dear Mr. Wolman:

The Board has received your Notice of Appeal and

Request for Expedited Hearing, both of which are based on

the previous denial of a permit for your client to display a

cross on the Statehouse grounds from December 8 to

December 24 of this year.

The Notice of Appeal that you have submitted is not

in compliance with O.A.C. 128-4-04, which is

understandable because the rule only took effect on October

29, 1993, after receiving final approval from the Joint

Committee on Agency Rule Review. We are waiving those

requirements except that in order to process your appeal

119

promptly and effectively, the Board not need to receive from

you the "concise statement of the reason the appeal should be

granted" as set forth in that Rule. I would ask you to submit

that statement to the Board as quickly as possible, preferably

by immediate facsimile transmission.

Our counsel has undertaken a review of the applicable

laws and regulations governing the procedures for an

administrative appeal. (Please understand that this body has

never before received a request pursuant to statute for an

administrative hearing related to the issuance of a permit

order). R.C. 119.07 states that an agency is to set the date,

time, and place of a hearing "within fifteen days, but not

earlier than seven days, after the party has requested a

hearing." It also appears, however, that an agency has

discretion under the statute to waive these time constraints if

requested to do so by the party giving notice.

In view of the sensitive timing of the particular

matters at issue here, counsel has advised us that the Board

should waive the seven-day requirement and try to schedule

an administrative hearing as soon as possible. Accordingly,

we do waive the seven-day requirement as provided in the

Statute. As soon as the Board receives a brief statement of

the reasons why your client believes that the initial denial of

the permit was improper and thus that the appeal should be

granted, we will immediately schedule an expedited hearing

as you have requested. In the meantime, we will continue to

take all necessary steps to prepare and schedule a proper

administrative hearing in compliance with the governing

Statutes.

Sincerely,

RON KELLER

120

;

Executive Director

Capitol Square Review

and Advisory Board

EXHIBIT 9

MOOT, COPE &STANTON

A Legal Professional Association Phillip R. Moots

Jon M. Cope

3600 Olentangy River Road Elizabeth M. Stanton

Columbus, Ohio 43214-3913

(614) 459-4140 Wanda L. Carter

Telefax Benson A. Woiman

(614) 459-4503 Catherine A

Cunningham

9 December 1993

VIA FACSIMILE 752-5209 AND FIRST CLASS MAIL

Capitol Square Review and Advisory Board

Ronald T. Keeler, Executive Director

Hon. Richard H. Final, Chairperson

The Statehouse

Columbus, Ohio 43215

RE: Appeal of December

3, 1993 denial of

Permit Application

of Knights of the K

Klux Klan to display

cross; Request for

Expedited Hearing

121

Dear Mr. Keeler and Senator Finan:

Your letter that was transmitted after hours Friday

was received by me this morning. We appreciate the prompt

; response. Following is a concise statement of the reasons the

appeal should be granted:

l, The denial violates the guarantees of the

freedom of expression and free exercise of religion secured

under the First and Fourteenth Amendments to the

Constitution of the United States and similar provisions of

the Constitution of the State of Ohio;

Ys The denial deprives the appellant of the equal

protection of the laws guaranteed under the Fourteenth

Amendment and similar provisions of the Ohio Constitution;

3. The denial deprives the appellant of due

process of law secured under the Fourteenth Amendment to

the Constitution of the United States and the Constitution of

the State of Ohio as well as of other rights guaranteed under

the Constitution of the United States and the Constitution of

the State of Ohio;

4, The denial constitutes a bill of attainder and an

€x post facto law under Article I, Section 10 of the

Constitution of the United States and similar provisions of

the Constitution of the State of Ohio;

and

Capitol Square Review and Advisory Board

December 13, 1993

Page Two

122

» J The denial states, and there is, no basis in law

or fact that would justify denying the permit.

Not yet having received a copy of the rules, policy or

minutes of the board reciting the underlying authority for the

action of the Executive Director, the appellant does not

waive the right to raise any further constitutional or other

bases upon which the ruling may be challenged.

Sincerely,

Benson A. Wolman

David Goldberger

Attorneys for Appellant

BAW:smk

ce: Christopher Cook, Assistant Attorney General

Andrew Sutter, Assistant Attorney General

Richard A. Cordray, State Solicitor

Lee Fisher, Attorney General

Donnie A. Carr, Unit Coordinator, Knights of the

KKK (Ohio)

Vincent J. Pinette, Grant Titan, Knights of the

KKK (Ohio)

EXHIBIT 10

MOOT, COPE &STANTON

A Legal Professional Association Phillip R. Moots

Jon M. Cope

3600 Olentangy River Road Elizabeth M. Stanton

Columbus, Ohio 43214-3913

(614) 459-4140 Wanda L. Carter

Telefax Benson A. Wolman

123

(614) 459-4503 Catherine A.

| Cunningham

9 December 1993

VIA FACSIMILE 752-5209 AND FIRST CLASS MAIL

Christopher Cook, Assistant Attorney General

Andrew Sutter, Assistant Attorney General

Richard A. Cordray, State Solicitor

Lee Fisher, Attorney General

30 East Broad Street

Columbus, Ohio 43266-0410

Re: Capitol Square Review and

Advisory Board Denial of

Permit Application of

Knights of the Ku Klux Klan

to display cross; Request for

Expedited Hearing

Gentlemen:

Please contact me so that we may arrange a mutually

agreed upon time for the hearing and to discuss possible

stipulations to simplify the matter.

Also, if you will not be arranging for a stenographic

transcript of the appeal hearing, please apprise me reasonably

in advance.

In addition, please supply via facsimile (or, if

voluminous, we will pick up) copies of:

3 OAC- 128-04;

rs the original board or other policy, statement,

124

minutes, or guidelines which the borad

appeared to have adopted regarding holiday or

other displays;

3, the present board policy, statement, minutes

or guidelines which the board has adopted

relative to holiday or other displays;

Christopher Cook, et al.

December 13,. 1993

Page Two

4. any other policies or materials, statements,

minutes or guidelines which pertain to holiday

or other displays and the Ku Klux Klan or any

other individuals or groups; and

5. all materials related to the Lubavitch menorah

application (and disposition) this year and in

prior years and any other application (and

disposition) for the use of Capitol Square for

holiday or other displays.

Thank you for your assistance in these matters.

Cordially,

Benson A. Wolman

David Goldberger

Attorneys for Appellant

BAW:smk

125

ce: Vincent J. Pinette

Donnie A. Carr

3157\004\LTRCOO02.BAW

Attorney General

LEE FISHER

December 16, 1993

Benson A. Wolman, Esq

Moots, Cope & Stanton

3600 Olentangy River Road

Columbus, Ohio 43214-3913

Re: Schedule of Administrative Hearing

Dear Mr. Wolman:

The expedited administrative hearing that you

requested on behalf of the Knights of the Ku Klux Klan has

been scheduled for Friday, December 17, 1993 at 2:00 p.m.

The hearing will be conducted in the North Hearing Room of

the Statehouse Senate Building (the Ohio Statehouse Annex).

Thank you for your cooperation in this matter.

Very truly yours,

126

CHRISTOPHER S. COOK

Assistant Attorney General

(614) 466-2980

CSC:elk

Ce: Donnie A. Carr

Vincent Pinette

David Goldberger

127

Sten

DEFENDANTS’ EXHIBIT C

[Reprinted in brief in Opposition to writ of

certiorari. p. RA 17]

DEFENDANTS’ EXHIBIT D

[Reprinted in brief in opposition to writ of

certiorari. p. RA 19]

129

foes

ae}

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

VINCENT J. PINETTE, ET AL.,

Plaintiffs, :

v. : CASE NO. C2-93-1 162

CAPITAL SQUARE REVIEW AND :

ADVISORY BOARD, et al., : JUDGE GRAHAM

Defendants.

AFFIDAVIT

STATE OF OHIO, COUNTY OF FRANKLIN, SS:

Dr. Dennis Anderson, being first duly cautioned and

sworn, deposes and states as follows:

is [I am the President of Trinity Lutheran

Seminary, a seminary of the Evangelical Lutheran Church in

America, located at 2199 E. Main Street, Columbus, Ohio

43209.

ye I have been the President of Trinity Lutheran

Seminary for the past four years, from January, 1990, to the

present, December 20, 1993

3. I attended Gustavus-Adolphus College and

earned the undergraduate degree of a Bachelor of Arts in

1959.

4. I attended the Lutheran School of Theology at

Chicago, Illinois from 1959 to 1963 and earned a Master of

130

Divinity degree in 1963.

2 I received further post-graduate training at the

Austin Presbyterian Theological Seminary from 1964 to

1965.

6. Prior to becoming President of Trinity

Lutheran Seminary, I was a Bishop with the Lutheran

Church, Nebraska Synod. I held this position for twelve

years.

2 I have been a Pastor in the Lutheran Church

for thirty (30) years.

8. It is my opinion, confirmed by widely

acknowledge and accepted historical research, that the cross

is a wide spread religious symbol found in both Old and New

Worlds. The source of the cross is in remotest antiquity as

a symbol of the life of homo religious. It is used in artistic,

scientific, mathematical, architectural, geographic and

cosmological fields. While it is one of the most ancient

symbols, the cross is a symbol par excellence of Christianity

itself as well as of Christ its head.

9. - Itis my opinion that in American religious use

and culture the Latin Cross is the most common and

constitutes the primary symbol of Christianity.

10. For Christians, the cross is a sign evoking

memory and knowledge of a specific historical event, the

death of Jesus of Nazareth whom Christians adknowledge as

the Christ, Lord and Saviour. From the first century on,

Christians have understood the cross as connected both to the

mystery of creation and redemption. It is a symbol thus not

only of the death of Jesus but of the Resurrection of Jesus

and of God’s saving acts in history.

131

cg cai eg cn cc

BS, It is because of a historical event, the death

of Jesus of Nazareth, crucified at Golgotha - that the cross is

endowed with transcendent significance. This is reflected in

the fact that early Christian theologians began the work of re-

interpreting pagan (non-Christian) uses of crosses in light of

Christian theology. Among such theologians were Justin

Martyr and Tertullian. By the end of the 6th Century

crosses marked the altars of Eastern and Syrian Churches and

by the end of the 7th Century crosses decorated all

"monuments" in both the East and the West. Thus in both

Eastern and Western Europe, the Middle East, and the

Americas the cross is considered inseparable from the New

Testament witness to Jesus as Lord and Saviour.

12. | The cross in American culture and religious

culture, and the Latin cross in particular, is thus not only a

religious symbol, but "sectarian" in that it has primary

reference to Jesus and Christianity.

13. The Latin cross, as the unmistakably inherent

symbol of Christianity, transcends any specific holy season

or holiday such as Christmas or Easter however, it is most

specifically associated with Good Friday and Easter because

of the crucifixion and resurrection. It is not considered a

Christmas symbol as such. It is a symbol of Jesus and the

Christ.

Further Affiant sayeth naught.

Dr. Dennis Anderson

Subscribed and sworn to me this 20th day of December,

1993.

Notary Public

132

133

Susan C. Strait

Notary Public - State of Ohio

My commission expires

April 30, 1996

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

(TITLE OMITTED IN PRINTING)

Donnie Carr [42]

l A. Yes, it is.

Z Q. What is the mission of the Knights of the Ku

Klux

3 Klan?

4 A. First, I would like to clarify, the name Ku Klux

Klan

5 is a term which is in the public domain. It is

used by

6 many different groups. At last couni, I believe there

7 were 96 separate groups using that term. Our

group, the

8 Knights of the Ku Klux Klan, is a law-abiding

group. We

9 are totally opposed to any violence against any

other

10 person, whether it be because of their race or

because of

1] their religion, but our goals are the establishment or

the

12 reestablishment of a Christian government in the

United

13 States of America, and we do believe that each race

should

14 be separate to rise to their own level. We believe in

15 fundamental family values. Basically, everything

that our

16 country was founded on, the original Constitution,

that’s

17 what we are for.

18 Q. Did you apply for the permit that is at issue

134

in this matter?

20 A. Yes, I did.

21 Q. Why did you apply for it?

22 A. I applied for the permit after hearing that the

-- |

23 believe it was on the 18th of November, I heard on

= the

24 television that the Capitol Square Review and

Advisory

25 Board had denied or had passed a ruling where they

were

[43]

| going to allow no religious displays whatsoever on

the

2 statehouse grounds. After that, the next day or

3 subsequent thereafter, maybe a couple of days, they

had

4 said that there was a great deal of pressure upon

them,

5 and that they had reversed the decision and would

allow

6 the menorah, allow the tree, and the reason they

had

7 stated before on their banning on everything was

that they

8 were afraid that the Klan would attempt to erect a

cross.

) MR. CORDRAY: Your Honor, we would

object to some

10 of this testimony. Much of that last answer is

clearly

1] based on hearsay. It is not clear to me that the

witness

12 has personal knowledge -

13 THE COURT: Well, he said he read it in

the

135

paper, so that is first-hand knowledge of what he

read.

Overruled. Go ahead.

MR. CORDRAY: Thank you, Your Honor.

THE WITNESS: As | stated, the reason that

they

had not wanted to allow any of displays was that

they were

afraid that the Klan would -- if | remember the

direct

quote -- it was embarrass the city, that they would

not -

the Klan, meaning us, would not lose another

chance to

embarrass the city.

MR. CORDRAY: Your Honor, may we

stipulate that

this testimony is being offered to demonstrate Mr.

Carr’s

understanding rather than for the truth of the

matters

[44]

asserted?

THE COURT: Well, Mr. Cordray, | am

going to let

it in, and I will sort out how it can be used.

MR. CORDRAY: Thank you, Your Honor.

THE COURT: Go ahead.

THE WITNESS: After that, after conferring

with

my superiors in the organization, we had decided

that

since we were being excluded by the city or the

State, the

Capitol Square Review and Advisory Board, that

we would

136

attempt to obtain a permit to erect a cross for the

Christmas season. At no time did we stipulate that

wanted the cross to be part of the holiday, quote

unquote,

display that was there. We said on the application,

states erect cross for Christmas. It doesn’t specify

that

we put the cross beside the menorah, beside the

tree.

I applied, I believe, on the 29th for the permit,

and I believe that was the same day that the permit

for

the menorah was also filed, and then subsequently

the

permit was denied. I was made aware of that

through the

media before I got the registered mail.

BY MR. WOLMAN:

Q. Do you care where the cross would be

displayed on the

statehouse ground?

A. Absolutely not, not as long as it is not

segregated

as in behind a wall or something where it can’t be

seen,

[47]

A. Yes, I believe he is.

Q. Thank you. Proceed.

A. He came out from the building at a dead

run, came

into the press conference, broke through the

reporters

that were there, and in a very irate, very agitated

manner, stated this is illegal, you cannot have a

137

press

conference here, you don’t have a permit. When

Mr.

Pinette tried to ask him if he needed a permit to

make a

press statement, Mr. Shellenbarger totally ignored

the

question, kept repeating that you have to stop this

right

now, yOu can’t speak any longer, so we said we

would go

get a permit. Mr. Shellenbarger -- as we turned to

inside the building to get the permit, Mr.

Shellenbarger

reached out, grabbed Mr. Pinette’s jacket and if to

say

you can’t go there. I told him to please remove his

hand. This was on the videotape of the local

television

program. He did so. As we were going inside to

get the

permit, the reporters were asking Mr. Pinette

questions.

Every time he answered a question, Mr.

Shellenbarger said

that is another $20 permit you owe us.

By the time we had gotten to the inside of the

Capitol Square Review and Advisory Board, | think

we were

up to like $80 because Mr. Pinette had actually

spoken

four different words.

When we filed for the permit, Mr. Shellenbarger

138

[48]

-- for the press conference that we were going to

have

right then, Mr. Shellenbarger stated that, well, this

going to take a week for us to act on this permit for

you

to hold this press conference, which we were

holding at

that instant.

Also, subsequent to that, when I personally

applied for the permit for the cross, we went into

the

Capitol Square Review and Advisory Board. Mr.

Shellenbarger wasn’t there at that time. I spoke

with the

secretary, obtained the permit, filled it out._

Q. Excuse me, you obtained the permit or the

application?

A. The application for the permit, excuse me. |

obtained the application for the permit, I

subsequently

filled it out. As I came back in to get the permit, |

noticed that there were cartoons out of a

newspaper, |

imagine, or perhaps someone had drawn them, and

the

cartoons were -- a brief synopsis of it, there was a

drawing of a robed klansman, there were two

windows as if

teller windows. Over one was the sign which read

applicants for permits to assemble. The other sign

said

idiots with constitutional rights. The person was

pointing -- the person in the cartoon was pointing to

the

139

door with the idiots, saying I think you need to go

door. I saw several cartoons that were blown up to

about,

[49]

I would say, one foot by one foot, and one which

- Was at

least 2 foot by 3 foot on several of the offices, and

felt that was prejudicial against us.

MR. CORDRAY: Objection, Your Honor, |

am not

sure I quite understood the relevance of that last

portion

of the statement to the defendants in this case.

Maybe I

merely misunderstood the testimony.

THE COURT: As I understand it, he’s

simply

citing evidence to support his belief that the

authorities

charged with the duty of issuing these permits were

biased

against his organization.

MR. CORDRAY: All right.

THE COURT: The Court will jet it in for

that

purpose.

THE WITNESS: Also, at that same time,

while |

was there obtaining the application for the permit,

Mr.

Shellenbarger did enter as I was turning over the

application. He once again came in very irate,

what’s

going on, what’s going on, seeing that it was me.

140

I explained to him that we were filing for a

permit to erect a cross. Mr. Shellenbarger took the

application fee, he made a very big show of writing

"nonrefundable" on the $20 application fee in very

large

letters as if to say you just wasted $20, and we got

copy of the permit -- or the application for the

permit,

[50]

and as I said, that has led me to believe that the

Capitol

Square Review and Advisory Board is prejudiced

against our

particular group, and any motion or any petition

that we

might file.

BY MR. WOLMAN:

Q. How many copies of that cartoon did you

see?

A. I personally saw at least three or four, and

like I

said, one was at least 2 foot by 2 foot, it was very

large.

Q. Mr. Carr, what was it you wanted to erect

on the

day -- for the period of time that you indicated on

the

permit application?

A. It was a cross which was to be 10 foot high,

6 foot

cross member, painted white. It would be held by a

free

standing tripod. On that also would be a cardboard

disclaimer which would have inscribed on it that

this has

141

;

{

been erected with private funds without the

authorization

of the state, and that it was to be there as an

expression

of the holiday season, and as an expression that we

believe that all religious views should be expressed.

Nowhere on the cross was it to say erected by the

Ku Klux

Klan or anything of that nature.

Q. Was the so-called disclaimer sign fixed in

your mind :

or was it subject to negotiation?

A. It was subject to negotiation. Whatever

would work,

[51]

we were willing to work with the Capitol Square

Review and

Advisory Board or any other body as to whatever

would

fulfill what they believed the obligations would be

for

the disclaimer.

Q. What is the cross? Is it a symbol of

religion?

A. Obviously the cross has a religious

connotation. To

us, meaning the Knights of the Ku Klux Klan, it

has many

other applications. It is a symbol to us of freedom,

symbol of -- it is hard to put into words. To us, it

is a

sacred symbol, but it is also a symbol of going

against

tyranny, a symbol of freedom. We believe that it is

one

142

of the best symbols that exemplify what we believe

in, and

we have used it for 128 years.

Q. A symbol against tyranny in the manner that

Jesus of

Nazareth opposed tyranny?

A. That, and also the cross originated -- the Ku

Klux

Klan’s use of the cross originated from the early

Scottish

clans in Scotland in the 1300s which used the cross

asa

symbol to rally the clans together to fight against

their

English oppressors.

MR. WOLMAN: That is all the questions I

have,

Your Honor.

THE COURT: All right. Who will

cross-examine?

MR. CORDRAY: I will, Your Honor.

THE COURT: Mr Cordray

[52]

CROSS-EXAMINATION

BY MR. CORDRAY:

Q. Mr. Carr, I am Richard Cordray on behalf

of the

State.

I believe you indicated that your position is

that you are a unit coordinator for the Ku Klux

Klan?

A. Yes, that is right, Knights of the Ku Klux

Klan.

Q. is there any other name for your position?

143

ceoNN A SP

A. The term in Klan parlance would be the

exalted

cyclops.

Q. Exalted cyclops. That would be a unit

coordinator,

is that correct?

A. Yes.

Q. Mr. Pinette has been referred to in the

complaint as

the chief executive officer in his affidavit of the Ku

Klux Klan. Is there another name for his position?

A. He is the regional coordinator.

Q. Is there another name in Klan parlance?

A. In Klan parlance he would be the grand

titan.

Q. The grand titan?

A. Yes.

Q. You stated in response to some questions by

Mr.

Wolman that one of the central Purposes of your

organization is, and I quote you, to establish a -

Christian

[53]

government in America, is that correct?

A. To return the government of the United

States to its

original foundations which we believe does have

Christian

connotations, yes.

Q. So in fact, as you said earlier, part of your

objective is to establish a Christian government in

America, is that correct?

A. As I said, to return the government to as it

was

Originally founded.

Q. You also said in response to the

144

question --

MR. WOLMAN: Asked and answered,

Your Honor.

THE COURT: If you have an objection,

stand and

say I object. -

MR. WOLMAN: Object, Your Honor.

THE COURT: Would you read the question

back?

(Question read).

THE COURT: I am going to sustain the

question.

It is argumentative. Go ahead-

BY MR. CORDRAY:

Q. Is it correct that in response to the question

from

Mr. Wolman, and I suppose the record will reflect

this,

you stated that part of the objective of your

organization

is to establish a Christian government in America?

A. Yes.

[54]

Q. Thank you. In your view, would the

erection of a

cross on Capitol Square help to advance the

objective of

your organization of establishing a Christian

government

in America?

A. No.

Q. Would the denial of an opportunity to

display-your

cross on Capitol Square retard your objective of

attempting to establish a Christian government in

America?

9- A. I believe the denial of the application would

10 adversely affect our right to display symbols,

whether it

1] be Christianity or any other symbol that we decide

12 erect.

13 Q. Would it have any impact on your purposes

14 attempting to return the government of the United

States

15 more toward Christian principles?

16 A. You mean on a national level?

17 Q. Even on a local level here in Ohio, central

Ohio.

18 A. I’m sorry, I don’t quite follow exactly what

you

19 mean.

20 Q. Let me rephrase the question.

2! A. Please.

22 Q. You have stated in response to questioning

that part

23 of the objectives of your organization are to

establish a

24 Christian government in America, and you have

elaborated

25 to return the government of America more along its

[55]

| fundamental Christian origins.

2 A. Correct.

2 Q. My question to you is: Is your request to

have a

3 cross erected on Capitol Square during the

Christmas

5 season part of the efforts by which you are

attempting to

6 achieve those objectives?

146

PWN

A. Yes, I would believe that it is a part -- yes,

erect the cross would be to help us return to the

Christian values, yes.

Q. You have also indicated in response to

questions from

Mr. Wolman that -- let me try to be clear on this,

and |

hope you will clarify -- that you don’t really want

this

cross to be part of the state’s holiday seasonal

display,

is that correct?

A. No, I said that I did not -- we did not

specify that

it be part of the holiday display. I didn’t say that

didn’t want it to be, I said that we did not specify

that

it would be.

Q. Do you have a preference in that regard?

A. Not at all. Anywhere on the -- anywhere on

the

ground. That is what it said in the application, erect

cross for Christmas. It didn’t say erect it with the

holiday display.

Q. Do you prefer that the cross stand alone, or

would

you prefer --

[57]

A. ¥es.

Q. Did you receive a bill?

A. No, we didn’t.

Q. Have you paid any money or been asked to

pay any

147

2 Ree ere

money since then on that occasion?

A. For that particular -

Q. Yes.

A. No.

Q. Did that press conference go forward? |

believe you

Said --

A. Not on the statehouse grounds. We were

forced to

move on to the public sidewalk.

Q. You have also indicated here today that part

of the

display that you seek on the Capitol Square would

be a

disclaimer sign, is that correct?

A. That’s correct.

Q. What would that sign say?

A. As I said, it is open to discussion. The gist

of the

disclaimer would be that it has been erected by

private

individuals, and that it would not constitute

acceptance

or that it was being condoned by the state, and that

believe that it was put there as an expression of the

Christmas season or the holiday season and as an

expression that all religious views should be shared

equally in public forums.

[58]

Q. In fact I believe you-stated., and in fact the

sign,

as I understand it, would state specifically, that this

for the purpose of expressing respect for the

holiday

148

sa N

season, is that correct?

A. As I said, the sign is open -- the sign has

not been

written yet, sir. It is open to discussion.

Q. I would simply reference in the stipulation

of fact

number 32, the content as stated to the board is for

the

purpose of expressing respect for the holiday

season.

That is in harmony with your views?

A. Yes.

Q. In your original application for a permit,

was there

any mention of any such sign or disclaimer?

A. No.

Q. When did you decide to add a disclaimer?

A. I knew personally all along that a disclaimer

would

need to be placed on the cross as we did not want

to have

the cross displayed without a disclaimer on it.

Q. But you didn’t indicate that to the board

when you

submitted the permit application /

A. No. The only -

Q. That is fine.

MR. GOLDBERGER: He should be

permitted to

explain his answer.

THE COURT: We are going to have one

lawyer for

[61]

understand to be the quintessential and principal

and

central religious symbol of the Christian faith, and

149

you

indicated that in fact the cross has been used by

your

organization for 128 years. Is that correct?

A. Yes. I would also like to stipulate our

organization

is the Knights of the Ku Klux Klan. When we refer

to Ku

Klux Klan, it could be one of various groups.

Q. But I believe you testified, sir that your

Organization -- that was your characterization -- has

been

using the cross for 128 years?

A. Yes.

Q. That dates back to what date?

A. 1865 is when the Ku Klux Klan was formed;

SO -

Q. And in what manner has your organization

used the

cross over the years?

A. Well, I can only speak for obviously the

time that |

have been in the movement, but historically, the

cross has

been used, as I said, as a symbol of freedom, as a

symbol

of trying to unite our people. We try to unite our

people

under the cross. We try to use the cross as a

symbol of

freedom from tyranny. The cross was also

incorporated in

the confederate battle flag, which I don’t know if

you are

familiar with that or not.

Q. I am.

150

A. But the cross is incorporated in that also,

and the

Jack Chomsky [69]

THE COURT: Yes.

Q You’re an ordained cantor of the Jewish

faith?

A Yes, I am.

Q Where did you obtain your ordination?

A I was ordained at the Jewish Theological

Seminary in

New York in 1982.

Q Is that the same seminary where Rabbi

Berman was ordained

A Yes.

-- as a rabbi?

A As a rabbi, as a graduate of the rabbinical

school of

that seminary, and i’m a graduate of the cantorial

school.

And both cantors and rabbis serving congregations

are

considered to be ministers according to the

guidelines set

down by the state.

Q Does the state permit you to perform

marriages?

A Yes.

Q By your education and training, are you

familiar with

the precepts of Judaism?

A Yes, I am.

Q Are you familiar with the bible?

A Yes.

Q And with Talmudic matters?

A Yes.

MR. WOLMAN: We ask that he be

151

considered an expert,

[70]

your Honor.

THE COURT: Is there any objection to

that,

Mr. Cordray?

MR. CORDRAY: We have no objection,

your Honor.

THE COURT: Very well.

Q Cantor, can you tell us, in your own words,

what the

menorah means?

The menora is a religious symbol. It is used in

conjunction with fulfilling the obligations incumbent

upon

Jew for the celebration of the festival of Hanukkah.

Q By a menorah, we are here discussing, |

take it, the

nine-branch candelabrum?

A Yes.

Q As opposed to other kinds of candelabra?

A Yes, definitely.

Q How do you feel about the menorah?

A Well, it’s a I think --

MR. CORDRAY: Your Honor --

THE COURT: Just one moment. Yes, Mr.

Cordray.

MR. CORDRAY: Objection. I’m not sure

how the

witness knows how to respond to the question.

THE COURT: His own subjective feelings

would not be

relevant. Sustained. Go ahead. Rephrase the

question.

Q Cantor, do you regard the menorah as a

symbol of the

152

Jewish faith?

[71]

A I regard the menorah as a religious symbol.

It is

important in its use to perform a religious

obligation,

and I take exception to the suggestion that it is not i

‘ :

religious symbol.

Q Do you know of any other faiths that use

that nine-branch candelabrum menorah?

A I am not aware of any, though I don’t

consider that

there are some faiths which are extremely

welcoming of the

rituals of other faiths. It is possible that there might

another faith which does.

Q But you re no. aware of any?

A I am not aware of any.

Q Are you familiar with the so-called Jewish

star?

A Yes, I am.

Q Is that a symbol of the Jewish faith?

A I consider that to be a purely secular

symbol.

Q In what way is it a secular symbol?

A We see that symbol adorning various

different objects

and people. But it is not used in conjunction with

any

religious obligations.

Q Is it used as the symbol of any

governments?

A Yes. It is used as the symbol of the

government of the

153

state of Israel. But again, in that regard, I don’t see

that

as invalidating my previous statement.

Q Is it used for commercial products, such as a

wine?

[75]

Q What’s the difference between festival and

season?

A The festival is eight days. The season is

something of

a longer time and it actually Suggests other seasons

which

are celebrated at this time of the year with which

there

would certainly be no connection of the Hanukkah.

Q But, for example, in this case Rabbi

Capland was per-

mitted to erect a menorah on the capitol grounds

from December

8 to December 16, which as I understand it

coincides with the

festival season taken in the limited sense of the

dates that

are inclusive of the Hanukkah festival; is that

correct?

A The festival of Hanukkah is eight days long.

I take

some exception to the use of the word season, but

this is

This text is long and has been trimmed here. Open the source document for the complete record.

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.