# Joint Appendix — Capitol SquareReview and Advisory Bd. v. Pinette > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0730%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix - **Published:** January 1, 1995 - **Citation:** 515 U.S. 753 ## Text 94-780 dn 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 12/20/93 12/20/93 12/20/93 12/21/93 10 1] 13 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 -- 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 12/27/93 12/27/93 1/3/94 21 1/3/94 22 1/3/94 23 18 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 10 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 11 12/22/93 12/22/93 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 12 1/5/94 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 13 93-4367 Pinette, et al v. Capitol Sq Review Bd, et al 1/794 1/25/94 2/1/94 2/15/94 2/15/94 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 14 ” 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) 15 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 3/30/94 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) 16 4/1/94 4/6/94 4/8/94 4/13/94 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) 17 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, 18 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 19 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, 20 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. 21 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 22 — 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 23 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. 24 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 25 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 26 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 27 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. 28 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 29 (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 30 \ 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 31 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 32 Plaintiff’ s Exhibit l 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 33 PLEASE MAKE CHECK PAYABLE TO: CSRAB OHIO STATEHOUSE COLUMBUS, OH 43215 CC: VINCE PINETTE Plaintiff’ s Exhibit 2 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 34 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: 35 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, 36 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 37 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: Xx PERMIT APPLICANT DATE _ 10-/29-93 PLAINTIFF’S Capitol Square Review & Advisory Board EXHIBIT 3 Phone: 614/752-9777 Fax: 514-/7525208 38 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: 39 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 40 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 41 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. 42 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 ]* 43 —————————— 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 44 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 45 | 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 46 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. 47 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 48 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 49 Sworn to me and signed via facsimile on this 17th day of December, 1993. 50 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 v. 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. 51 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 52 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 53 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, 54 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. 55 SUPPLEMENTAL EXHIBIT 10] [Reprinted in appendix to brief in opposition to writ of certiorari p. RA 23] 56 SUPPLEMENTAL EXHIBIT 102 [Reprinted in brief in opposition to writ of certiorari p. RA 24] 57 SUPPLEMENTAL EXHIBIT 103 [Reprinted in brief in Opposition to writ of certiorari p. RA 28] 58 SUPPLEMENTAL EXHIBIT 104 SUPPLEMENTAL EXHIBIT 105 [Reprinted in brief in opposition to writ of certiorari p. RA 31] 60 SUPPLEMENTAL EXHIBIT 106 [Reprinted in brief in opposition to writ of certiorari p. RA 32] SUPPLEMENTAL EXHIBIT 107 DEFENDANTS’ SUPPLEMENTAL EXHIBIT 107 A) SUPPLEMENTAL EXHIBIT 108 DEFENDANTS SUPPLEMENTAL EXHIBIT 108 SUPPLEMENTAL EXHIBIT 109 iz: Va AA DEFENDANTS’ SUPPLEMENTAL EXHIBIT 109 SUPPLEMENTAL EXHIBIT 110 SUPPLEMENTAL DEFENDANTS’ EXHIBIT 110 AS 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, 66 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. 67 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 68 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 69 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 70 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 71 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 72 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 73 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. 74 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 75 (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 76 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 l 77 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 78 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 79 a 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: a 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 80 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. 8] 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: 83 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, 84 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. 85 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. 86 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) 87 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 88 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. 89 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 90 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 91 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 92 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 93 EE | 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 94 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. 95 > 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 96 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. 97 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 98 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). 99 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0730%3A06. Public record. Not legal advice.