Appendix — McCreary County v. American Civil Liberties Union

APPENDIX

United States Court of Appeals,

Sixth Circuit.

AMERICAN CIVIL LIBERTIES UNION OF

KENTUCKY; Louanne Walker; David Howe;

Sarah Doe and Thomas Doe, on behalf of

themselves and their minor child, Jane Doe:

Lawrence Durham; Paul Lee, Plaintiffs-

Appellees,

Vv.

McCREARY COUNTY, KENTUCKY; Pulaski

County, Kentucky, Defendants-Appellants.

No. 08-6069.

Argued: Oct. 20, 2009.

Decided and Filed: June 9, 2010.

Rehearing and Rehearing En Banc Denied July

29, 2010.

Before: RYAN, CLAY, and GIBBONS, Circuit

Judges.

CLAY, J., delivered the opinion of the court.

GIBBONS, J. (pp. 451-52), delivered a separate

concurring opinion. RYAN, J. (p. 452), delivered

a separate dissenting opinion.

2a

OPINION

CLAY, Circuit Judge.

Defendants, McCreary County, Kentucky,

Pulaski County, Kentucky, and officials from

these counties, appeal from the district court

order granting Plaintiffs' motion to alter or

amend judgment, granting a permanent

injunction prohibiting Defendants from

displaying the three contested Ten

Commandments’ displays, and_ construing

Defendants' renewed motion for summary

judgment as one for relief from final judgment.

For the reasons set forth below, we AFFIRM

the district court's order.

BACKGROUND

In 1999, McCreary County and Pulaski County,

Kentucky erected displays consisting of framed

copies of the Ten Commandments in their

county courthcuses.! In response, Plaintiffs

' In addition, Harlan County, Kentucky erected

displays of the Ten Commandments in the

classrooms of its schools. However, the

classroom displays are no longer at issue in this

case. For a full recitation of the facts and

history of this litigation, see ACLU of Ky. v.

McCreary County, Ky., 145 F.Supp.2d 845

3a

filed lawsuits, seeking preliminary injunctions

that would require the removal of the displays

based on violations of the Establishment

Clause of the First Amendment.?

Shortly after the complaint was filed and

prior to a ruling in the district court on

Plaintiffs’ request for a preliminary injunction,

Defendants altered their displays “in an

attempt to bring the displayls] within the

parameters of the First Amendment and to

insulate themselves from suit.” ACLU of Ky. v.

McCreary County, Ky., 96 F.Supp.2d 679, 684

(E.D.Ky.2000) (“ McCreary I”). The second set

of displays posted in the courthouses included

large copies of the Ten Commandments along

with smaller copies of eight other documents,

which were religious in nature.

Specifically, the Courthouse displays were

modified to consist of: (1) an excerpt from the

(E.D.Ky.2001) (“ McCreary IT”), affd, 354 F.3d

438 (6th Cir.2003) (“ McCreary I/I”), affd, 545

U.S. 844, 125 S.Ct. 2722, 162 L.Ed.2d 729

(2005) (““ McCreary IV”).

Plaintiffs initially filed three lawsuits, but

they were consolidated and treated as one by

the district court and this Court on the initial

appeal. We continue to treat them as one

lawsuit for purposes of this appeal.

4a

Declaration of Independence; (2) the Preamble

to the Constitution of Kentucky; (3) the

national motto of “In God We Trust”; (4) a page

from the Congressional Record of Wednesday,

February 2, 1983, Vol. 129, No. 8, declaring it

the Year of the Bible and including a copy of

the Ten Commandments; (5) a proclamation by

President Abraham Lincoln designating April

30, 1863 a National Day of Prayer and

Humiliation; (6) an excerpt from President

Lincoln's “Reply to Loyal Colored People of

Baltimore upon Presentation of a_ Bible”

reading, “The Bible is the best gift God has ever

given to man.”; (7) a proclamation by President

Ronald Reagan marking 1983 the Year of the

Bible; and (8) the Mayflower Compact.

McCreary Ill, 354 F.3d at 442. Defendants also

passed new resolutions authorizing the second

set of displays (“the 1999 resolutions”), which

emphasized the importance of religion in

historical documents of the United States and

encouraged the County-Judge Executive to

“post the Ten Commandments as the precedent

legal code upon which the civil and criminal

codes of the Commonwealth of Kentucky are

founded.” (Dist. Ct. R.E. 119 Ex. B). On May 5,

2000, the district court granted Plaintiffs'

motion for a preliminary injunction, ordering

that Defendants remove the second displays

“immediately” and not erect “similar displays”

in the future. McCreary J, 96 F.Supp.2d at 691.

In response to the district court's ruling, the

counties removed the second set of displays,

voluntarily dismissed an appeal from the initial

preliminary injunction, and posted a third set

of displays entitled the Foundations of Law and

Government Displays (“Foundations Displays”).

The third displays contained nine documents of

equal size, including the Ten Commandments,

along with one page of explanatory phrases to

accompany each of the nine other documents.

Specifically,

[t]he new courthouse displays consisted of the

entire Star Spangled Banner, the Declaration

of Independence, the Mayflower Compact, the

Bill of Rights, the Magna Carta, the National

Motto, the Preamble to the Kentucky

Constitution, the Ten Commandments, Lady

Justice and a one-page prefatory document

entitled “The Foundations of American Law

and Government Display.” ... The prefatory

description states that the “display contains

documents that played a significant role in

the foundation of our system of law and

government.” ... With regard to the Ten

Commandments, the prefatory description

states:

The Ten Commandments have profoundly

influenced the formation of Western legal

thought and the formation of our country.

That influence is clearly seen in the

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Declaration of Independence, which declared

that, “We hold these truths to be self

evident, that all men are created equal, that

they are endowed by their Creator with

certain unalienable Rights, that among

these are Life, Liberty, and the pursuit of

Happiness.” The Ten Commandments

provide the moral background of the

Declaration of Independence and_ the

foundation of our legal! tradition.

There is no other discussion of the Ten

Commandments and how it purportedly

relates to any of the other documents in the

display.

McCreary IIT, 354 F.3d at 443. At the time the

Foundations Displays were erected, the

counties did not repeal the 1999 resolutions,

which were passed just months earlier, or pass

new resolutions authorizing the third displays.

On June 22, 2001, the district court granted

Plaintiffs' motion for a supplemental

preliminary injunction to include the third

displays. On December 18, 2003, this Court

affirmed.

On October 12, 2004, the Supreme Court

granted Defendants’ petition for certiorari.’ On

; Defendants sought certiorari on the

following issues:

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1. Whether the Establishment Clause is

violated by a privately donated display on

government property that includes eleven equal

size frames containing an explanation of the

display along with nine historical documents

and symbols that played a role in the

development of American law and government

where only one of the framed documents is the

Ten Commandments and the _ remaining

documents and symbols are secular.

2. Whether a prior display by the government

in a courthouse containing the Ten

Commandments that was enjoined by a court

permanently taints and thereby precludes any

future display by the same government when

the subsequent display articulates a secular

purpose and where the Ten Commandments is

a minority among numerous other secular

historical documents and s’mbols.

3. Whether the Lemon test should be overruled

since the test 1s unworkable and has fostered

excessive confusion in Establishment Clause

jurisprudence.

4. Whether a new test for Establishment

Clause purposes should be set forth by this

Court when the government displays or

recognizes historical expressions of religion.

8a

March 8 and March 10, 2005, after oral

argument but before the Supreme Court issued

a decision, the counties passed new resolutions

(“the 2005 resolutions”), which repealed and

repudiated the 1999 resolutions authorizing the

second displays. On June 27, 2005, the

Supreme Court upheld the preliminary

injunction on the basis that Defendants

exhibited an unconstitutional religious purpose

in posting the Foundat.ons Displays. The

Supreme Court viewed the repeal of the 1999

resolutions as “acts of obviously minimal

significance in the evolution of the evidence.”

McCreary IV, 545 U.S. at 872 n. 19.

After the Supreme Court issued its

opinion, the case returned to the district court

for further proceedings. The district court

entered a scheduling order containing, among

other things, discovery and dispositive motion

deadlines. After discovery closed, both sides

submitted motions for summary judgment.

Between the Supreme Court decision in June of

2005 and the filing of the motions for summary

judgment in January and February of 2007, the

parties merely conducted discovery as to the

factual details and motivation for the sequence

of the displays. Defendants made no changes to

the Foundation Displays, nor did they pass any

Petition for Writ of Certiorari, McCreary IV,

2004 WL 1427470, at *i (June 21, 2004).

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new resolutions concerning the purpose of the

displays.

On September 28, 2007, the district court

denied both Plaintiffs' and Defendants' motions

for summary judgment. In denying Plaintiffs’

motion for a permanent injunction against the

Foundation Displays, the district court held

that the constitutional violation is not

“continuing” as required by the standard for a

permanent injunction because “it is possible to

purge the taint of the impermissible religious

purpose.” (Dist. Ct. R.E. 153 at 10). However,

the district court also denied Defendants’

motion for summary judgment, holding that the

counties had not taken any actions since the

Supreme Court decision that showed a change

in their predominantly religious purpose; thus,

Defendants’ actions in posting the Foundations

Displays continued to violate the

Establishment Clause. Despite the district

court's holding that neither Plaintiffs nor

Defendants were entitled to judgment as a

matter of law, the court also found that no

triable issues of fact remained and referred the

case to the magistrate judge for a settlement

conference.

On October 9, 2007, in response to the

district court's finding that Defendants

continued to violate the Establishment Clause,

Defendants enacted new resolutions regarding

10a

the Foundations Displays (“the 2007

resolutions”). The 2007 resolutions stated the

educational and historical purpose of the

Foundations Displays and expressly disclaimed

any attempt to endorse religion. On October 15,

2007, Plaintiffs filed a timely motion under

Federal Rules of Civil Procedure 59 and 60 to

alter or amend the court's September 28, 2007

judgment denying Plaintiffs' motion for

summary judgment. On October 30, 2007,

Defendants filed a renewed motion for

summary judgment in light of the 2007

resolutions. Plaintiffs moved to — strike

Defendants' renewed motion on November 19,

2007, because Defendants had filed the motion

more than one year after the dispositive motion

deadline and had attempted to admit new

evidence more than one year after the close of

discovery.

On August 4, 2008, the district court: (1)

granted Plaintiffs' motion to alter or amend

judgment, (2) denied Plaintiffs' motion to strike

Defendants' motion for summary judgment and

directed Plaintiffs to file a response, and (3)

construed Defendants' motion for summary

judgment as one of relief from final judgment.

In altering its judgment under Rule 59(e), the

district court declared the Foundation Displays

unconstitutional and permanently enjoined

Defendants from displaying all three displays

in the county courthouses based on the court's

lla

finding that the Foundations Displays

continued to violate the Establishment Clause

as of its September 28, 2007 order. The cistrict

court also ruled that its order was final and

appealable. On September 2, 2008, Defendants

filed their timely notice of appeal from the

district court's final judgment. On September

30, 2008, the district court dismissed without

prejudice what it deemed to be Defendants'

motion for relief from judgment on the ground

that the court had lost jurisdiction over the

motion when Defendants filed their appeal.

Defendants filed no notice of appeal from the

district court's denial of their relief from

judgment.

DISCUSSION

I. Permanent Injunction Standard

This appeal differs from the last time we

heard this case in that we are reviewing the

district court's grant of a permanent injunction

rather than a preliminary injunction.

In evaluating a district court's grant of a

permanent injunction, we review its factual

findings under a clearly erroneous standard, its

legal conclusions de novo, and the scope of

injunctive relief under an abuse °* discretion

standard. Women's Med. Prof] Corp. v. Baird,

438 F.3d 595, 602 (6th Cir.2006).

12a

In general, “lt]he standard for a

preliminary injunction is essentially the same

as for a permanent injunction with the

exception that [for a preliminary injunction]

the plaintiff must show a likelihood of success

on the merits rather *han actual success.”

Amoco Prod. Co. v. Village of Gambell, 480 U.S.

531, 546 n. 12, 107 S.Ct. 1396, 94 L.Ed.2d 542

(1987) (internal citations omitted). In the

context of this case, “a party is entitled to a

permanent injunction if it can establish that it

suffered a constitutional violation and will

suffer ‘continuing irreparable injury’ for which

there is no adequate remedy at law.” Baird, 438

F.3d at 602 (citing Kal/strom v. City of

Columbus, 136 F.3d 1055, 1067 (6th Cir.1998)).

II. Disposition of Permanent Injunction

As was true the last time we heard this

matter, the governing standard for determining

whether a_ particular government action

violates the Establishment Clause remains

Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct.

2105, 29 L.Ed.2d 745 (1971). Despite

Defendants' attempts to persuade the Supreme

Court to abandon the inquiry into legislative

purpose, the Supreme Court confirmed that the

Lemon test remains the appropriate inquiry.

See McCreary IV, 545 U.S. at 861-64, 125 S.Ct.

2722. Under the Lemon test, as originally

l3a

formulated, reviewing courts must consider

whether (1) the government activity in question

has a secular purpose, (2) the activity's primary

effect advances or inhibits religion, and (3) the

governmental activity fosters an excessive

entanglement with re} sion. Lemon, 403 U.S. at

612-13, 91 S.Ct. 2105.

The touchstone of a reviewing court's

analysis under the Establishment Clause

requires “government neutrality between

religion and religion, and between religion and

nonreligion.” McCreary IV, 545 U.S. at 860, 125

S.Ct. 2722 (quoting Epperson v. Arkansas, 393

U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228

(1968)).

In analyzing purpose under the first

prong of the Lemon test, “[t]he eyes that look to

purpose belong to an ‘objective observer,’ one

who takes account of the traditional] external

signs that show up in the ‘text, legislative

history, and implementation of the statute,’ or

comparable official act.” /d. at 862, 125 S.Ct.

2722 (quoting Santa Fe Indep. Sch. Dist. v.

Doe, 530 U.S. 290, 308, 120 S.Ct. 2266, 147

L.Ed.2d 295 (2000) (quoting Wallace v. Jaffree,

472 U.S. 38, 76, 105 S.Ct. 2479, 86 L.Ed.2d 29

(1985))). See also Edwards v. Aguillard, 482

U.S. 578, 594-95, 107 S.Ct. 2573, 96 L.Ed.2d

510 (1987). “[Allthough a legislature's stated

reasons will generally get deference, the

l4a

secular purpose required has to be genuine, not

a sham, and not merely secondary to a religious

objective.” McCreary IV, 545 U.S. at 864, 125

S.Ct. 2722. Thus, the government violates the

Establishment Clause when it acts with the

“predominant purpose of advancing religion.”

Id. at 860, 125 S.Ct. 2722.

Furthermore, the objective observer is

considered to have “reasonable memories,” and

Supreme Court precedents “sensibly forbid an

observer ‘to turn a blind eye to the context in

which [the] policy arose.’” /d. at 866, 125 S.Ct.

2722 (quoting Santa Fe, 530 U.S. at 315, 120

S.Ct. 2266). Thus, reviewing courts must look

with the eye of an observer “familiar with the

history of the government's actions and

competent to learn was history has to show.”

"d (citing Santa Fe, 530 U.S. at 308, 120 S.Ct.

2266). As a consequence, “the same

governmental action may be constitutional if

taken in the first instance and unconstitutional

if it has a sectarian heritage.” /d. at 866 n. 14,

125 S.Ct. 2722 (“where one display has a

history manifesting sectarian purpose that the

other lacks, it is appropriate that they be

treated differently, for the one display will be

properly understood as demonstrating a

preference for one group of religious believers

as against another”).

As an initial matter, given that

Defendants' brief challenges only the

permanent injunction against the Foundations

Display, we affirm the permanent injunction as

to the first and second displays. We further find

that the district court did not err in

permanently enjoining the Foundations

Displays based on its finding that Defendants'

actions in posting these displays continued to

violate the Establishment Clause as of its

September 28, 2007 order.

The district court properly found that no

facts affecting the purpose analysis had

changed between the Supreme Court decision

finding an improper religious purpose in June

of 2005 and the filing of the motions for

summary judgment on remand in January and

February of 2007. In that time, Defendants

made no changes to the content or context of

the Foundation Displays, nor did they pass any

new resolutions concerning the purpose of the

displays. The Supreme Court found the content

of the Foundation Displays, in conjunction the

evolution of evidence, to reveal Defendants’

religious purpose in posting the displays.

According to the Court, the puzzling choices

that the counties made concerning which

documents to include in the displays and which

documents to omit would probably lead an

objective observer to “suspect that the Counties

were simply reaching for any way to keep a

religious document on the walls of courthouses

16a

constitutionally required to embody religious

neutrality.” McCreary IV, 545 U.S. at 873, 125

S.Ct. 2722.4 Likewise, on remand, the “objective

‘ According to the Supreme Court:

the selection of posted material [does not]

suggest a clear theme that might prevail over

evidence of the continuing religious object. In a

collection of documents’ said to _ be

“foundational” to American government, it is at

least odd to include a patriotic anthem, but to

omit the Fourteenth Amendment, the most

significant structural provision adopted since

the original Framing. And it is no less baffling

to leave out the original Constitution of 1787

while quoting the 1215 Magna Carta even to

the point of its declaration that “fish-weirs

shall be removed from the Thames.” Jd, at

205a, | 33. If an observer found these choices

and omissions perplexing in isolation, he would

be puzzled for a different reason when he read

the Declaration of Independence seeking

confirmation for the Counties' posted

explanation that the Ten Commandments'

“influence is clearly seen in the Declaration,”

id., at 180a; in fact the observer would find that

the Commandments are sanctioned as divine

imperatives, while the Declaration of

Independence holds that the authority of

government to enforce the law derives “from

the consent of the governed,” zd., at 190a.

17a

observer” who has reasonable memories would

have seen the same Foundations Displays

posted in the courthouses with the same set of

resolutions authorizing the displays, and would

have instantly recognized the same religious

purpose that Defendants articulated during the

previous round of litigation. See a/so Santa Fe,

530 U.S. at 315, 120 S.Ct. 2266 (holding that a

school district's history of non-compliance with

the Establishment Clause must be considered

in determining whether the school district's

latest iteration of the challenged policy was

constitutional).

Defendants attempt to argue that

because the 2005 resolutions, which adopted

educational purposes for the Foundations

Displays and repealed the 1999 resolutions

containing explicit religious purpose

statements, were passed after the Supreme

Court heard oral arguments, the Supreme

Court did not have a chance to adequately

consider the context of the 2005 resolutions or

their effect in eradicating the improper

religious purpose. However, despite the fact

that the counties passed these resolutions after

briefing and oral argument, the Supreme Court

still considered them in deciding that the

counties had not eliminated the improper

McCreary IV, 545 U.S. at 872-73, 125 S.Ct.

2722.

18a

religious purpose. In the context of the overall

evolution of the displays, the Supreme Court

found that the counties' new unwritten

statements of purpose “were presented only as

a litigating position” and that the new 2005

written resolutions were “acts of obviously

minimal significance in the evolution of the

evidence.” McCreary IV, 545 U.S. at 871, 872 n.

19, 125 S.Ct. 2722. See also Adland v. Russ,

307 F.3d 471, 481 (6th Cir.2002) (finding that

Kentucky's clarification of its Ten

Commandments display only after it was in the

midst of litigation was probative of the

Commonwealth's religious purpose).

In support of their argument that the

2005 resolutions evince a secular purpose,

Defendants argue that the Supreme Court

merely mentioned the 2005 resolutions in a

footnote and that a reviewing court should

generally defer to a legislature's stated intent

unless it is determined to be a “sham.” But

Defendants have failed to show why the district

court should have attributed more significance

to the 2005 resolutions than did the Supreme

Court in determining the purpose of the

displays. The Supreme Court considered the

2005 resolutions when the Court made its

decision, and the Supreme Court's assessment

of the 2005 resolutions became the law of the

case, which we are obligated to follow. See

Niemi v. NHK Spring Co., Ltd., 543 F.3d 294,

19a

308 (6th Cir.2008) (citing Scott v. Churchill,

377 F.3d 565, 569 (6th Cir.2004); Rouse v.

DaimlerChrysler Corp. UAW, 300 F.3d 711,

715 (6th Cir.2002)) (“lulnder the law-of-the

case doctrine, rulings made at one point in the

litigation should continue to govern’ in

subsequent stages of that litigation”).

The district court was in no position on

remand to assume that the Supreme Court did

not do its job and did not afford the resolutions

the proper weight. The district court was

correct to take its direction from the Supreme

Court, not from Defendants’ bare assertion that

the 2005 resolutions eradicated the improper

religious purpose. Lower courts are “obligated

to follow Supreme Court dicta, particularly

where there is not substantial reason for

disregarding it, such as age or subsequent

statements undermining its rationale.” l/nited

States v. Marlow, 278 F.3d 581, 588 n. 7 (6th

Cir.2002) (citing Gaylor v. United States, 74

F.3d 214, 217 (10th Cir.1996) (‘this court

considers itself bound by Supreme Court dicta

almost as firmly as by the Court's outright

holdings, particularly when the dicta is recent

and *448 not enfeebled by later statements’);

McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19

(lst Cir.1991) (“federal appellate courts are

bound by the Supreme Court's considered dicta

almost as firmly as by the Court's outright

holdings ..."))

20a

Although the Supreme Court made clear

that the counties’ past actions do not “forever

taint any effort on their part to deal with the

subject matter,” McCreary JV, at 874, 125 S.Ct.

2722, Defendants offered no new facts on

remand that show that their purpose had

changed from the one that the Supreme Court

found to violate the Establishment Clause. The

four changes cited by Defendants are not

“genuine changes in constitutionally significant

conditions.” /d. First, Defendants’ distinction

between the content of the second and third

displays does not govern whether’ the

legislators had an improper purpose in hanging

the displays and, in any event, those

distinctions existed before the Supreme Court

issued its decision. Second, the fact that more

time has passed since the Supreme Court

decision is meaningless in this case, because

Defendants have spent the time since the

Supreme Court decision continuously seeking

to accomplish their initial purpose of posting

the ‘Ten Commandments as a_ religiovs

document. Unlike a case in which the passage

of time might have some significance, there has

been no dormant period here; Defendants have

continuously sought to defend their actions and

accomplish what they initially set out to do

Third, the change in government personne! is

irrelevant, because the “objective observer’ test

does not encompass “judicial psychoanalysis of

2la

a drafter's heart of hearts.” Jd. at 862, 125 S.Ct.

2722. Finally, the two sets of “new” government

resolutions are not new: the 2005 resolutions

were enacted before the Supreme Court's

decision and deemed of minimal significance by

the Court, and the 2007 resolutions were

passed more than a year after the close of

discovery in response to the district court's

finding that the posting of the Foundations

Displays continued to violate the

Establishment Clause. Thus, the district court

properly found that no facts changed on

remand that would affect the Supreme Court's

analysis.

Furthermore, even if this Court were to

consider the 2007 resolutions, which were

adopted after and in direct response to the

district court's finding that Defendants

continued to advance a religious purpose and

more than a year after the close of discovery, it

is clear that these resolutions, like the previous

statements of purpose, were adopted only as a

litigating position. These resolutions represent

Defendants' latest effort in a long line of

attempts to conform their conduct to the

requirements of the Constitution after adverse

court rulings. See Santa Fe, 530 U.S. at 315,

120 S.Ct. 2266 (noting that the case at issue

was “the latest step in developing litigation”

and “refus ling} to turn a blind eye to the

context in which [the policy of prayer at football

22a

games] arose” in finding that “this policy was

implemented with the purpose of endorsing

[religion]”). Thus, like the 2005 resolutions, the

2007 resolutions provide little evidence that

Defendant's actual purpose has changed and

are of minimal significance in light of the

evolution of the evidence. See McCreary IV, 545

U.S. at 872 n. 19, 125 S.Ct. 2722.

The fact that this Court has found-since

the Supreme Court decided McCreary-that two

counties did not have an _ impermissible

religious purpose in posting displays identical

to the Foundations Displays at issue does not

affect our findirg that the counties in this case

have still not presented a valid secular purpose.

See ACLU of Ky. v. Grayson County, Ky., 591

F.3d 837 (6th Cir.2010); ACLU of Ky. v. Mercer

County, Ky., 432 F.3d 624 (6th Cir.2005). The

Supreme Court in McCreary noted that “the

same government action may be constitutional

if taken in the (ffirst instance and

unconstitutional if it has a sectarian heritage.”

McCreary IV, 545 U.S. at 866 n. 14, 125 S.Ct.

2722. Unlike the extended history of sectarian

purpose here, in Mercer “there was only one

display, one authorizing measure, and one

implementation, all of which demonstrate a

secular purpose.” 432 F.3d at 631. Likewise, the

majority in Grayson characterized the history

of the display as evidencing a predominantly

secular purpose. See Grayson, 591 F.3d at 849

(“As in Mercer County, the approval of the

display in Grayson County was not attended by

a history evidencing a predominantly religious

purpose. There were no earlier displays nor

were there any earlier resolutions indicating an

avowedly religious purpose.”). While there is

significant evidence in the Grayson record that

Defendants' predominant purpose, as observed

by an objective observer, was to post the Ten

Commandments as a religious text, we are

bound to interpret Grayson in a manner that

does not conflict with the Supreme Court's

decision in McCreary.® Thus, given the lack of

However, we also note that the Mercer

and Grayson opinions essentially ignore the

Supreme Court’s reliance in McCreary on both

the content of the display and the evolution of

the evidence in determining that Defendants

had a_ vreligious purpose in _ posting the

Foundations Display. The Mercer and Grayson

panels would have us believe that the Supreme

Court approved of the content of the

Foundations Displays and relied exclusively on

the existence of prior displays and past conduct

of McCreary County officials in rejecting

Defendants’ stated purpose as a sham. In fact,

the Supreme Court in McCreary noted that the

puzzling choices that the counties made

concerning the content of the Foundations

Displays would probably lead an_ objective

observer to “suspect that the Counties were

24a

the same type of extended sectarian history in

Mercer and Grayson, these cases. are

distinguishable from the instant case. Further,

unlike in Grayson and Mercer, the Supreme

Court in McCreary has definitively found that

the display at issue violates the Establishment

Clause, and we are obligated to follow that

precedent if no constitutionally significant facts

have changed.

Because the Supreme Court found that

Defendants acted with the predominant

purpose of advancing religion in displaying

each of their three Ten Commandment displays

in the county courthouses and Defendants

continued to exhibit the same purpose when

the district court issued its September 28, 2007

order, Defendants' action in posting these

displays violated the Establishment Clause.

Thus, Plaintiffs have established that they

suffered a constitutional violation and _ will

suffer continuing irreparable injury if the

violation continues. The fact that Defendants

seek to minimize the residue of religious

purpose does not mean that Plaintiffs do not

suffer continuing irreparable injury so long as

simply reaching for any way to keep a religious

document on the walls of courthouses

constitutionally required to embody religious

neutrality.” McCreary IV, 545 U.S. at 873, 125

S.Ct. 2722.

25a

the display remains on the walls of the county

courthouses. Thus, there is no adequate remedy

at law, and Plaintiffs have demonstrated that

they are entitled to a permanent injunction.

Accordingly, the district court erred in

declining to enter a permanent injunction

against Defendants in its September 28, 2007

order after finding that Defendants had

violated the Establishment Clause. However,

the district court rectified that error by

properly enjoining Defendants from posting the

displays in its August 4, 2008 order.

III. Disposition of Procedural Claims

A. Plaintiffs' Motion to Amend or Alter

Judgment

1. Standard of Review

Although we generally review a grant or

denial of a motion to alter or amend a judgment

under Rule 59(e) for abuse of discretion, when

the Rule 59(e) motion seeks review cf a grant of

summary judgment, we apply a de novo

standard of review. Cockrel v. Shelby County

Sch. Dist., 270 F.3d 1036, 1047 (6th Cir.2001).

In granting Plaintiffs' Rule 59(e) motion, the

district court essentially reconsidered and

granted summary judgment in favor. of

Plaintiffs. Accordingly, we apply a de novo

26a

standard of review.

“A motion to alter or amend a judgment

must be filed no later than 10 days after the

entry of the judgment.” Fed.R.Civ.P. Rule 59(e)

(emphasis added). A court may grant a motion

to alter or amend judgment only if there was

“(1) a clear error of law; (2) newly discovered

evidence; (3) an intervening change in

controlling law; or (4) a need to prevent

manifest injustice.” Jntera Corp. v. Henderson,

428 F.3d 605, 620 (6th Cir.2005) (citing

GenCorp, Inc. v. Am. Int] Underwriters, 178

F.3d 804, 834 (6th Cir.1999)).

2. Analysis

Because the district court erroneously denied

Plaintiffs’ summary judgment motions after

finding that Defendants continued to violate

the "+ ‘lishment Clause and that no triable

issues uf fact remained, the district court had

not yet entered judgment when it granted

Plaintiffs' motion to alter or amend judgment.

Thus, Plaintiffs' motion was effectively a

motion for reconsideration of summary

judgment and “(t]he district court was therefore

free to reconsider or reverse its decision for any

reason.” Cameron v. Ohio, 344 Fed.Appx. 115,

118 (6th Cir.2009) (citing Russel] v. GTE Gov't

Sys. Corp., 141 Fed.Appx. 429, 436 (6th

Cir.2005)). However, this Court has also found

27a

that it may be “proper for the [district [clourt

to entertain a motion to alter or amend a

judgment under Rule 59(e) even though it was

filed prior te the actual entry of judgment.”

Smith v. Hudson, 600 F.2d 60, 62 (6th

Cir.1979). Under the stricter Rule 59(e)

standard, Plaintiffs were entitied to have the

judgment altered in view of the district court's

clear error of !aw in declining to enter a

permanent injunction in its September 28, 2007

order.

Thus, regardless of whether Plaintiffs’

motion should have been classified under Rule

59(e) or Rule 54(b), the district court did not err

in reconsidering its earlier decision and

determining that Plaintiffs were entitled to a

permanent injunction.

B. Defendant's Renewed Motion for Summary

Judgment

1. Standard of Review

We generally review a district court's

denial of a motion for relief from judgment

pursuant to Rule 60(b) only for an abuse of

discretion. Mass: v. Walgreen Co., 337

Fed.Appx. 542, 545 (6th Cir.2009) (citing Davis

v. Jellico Cmtv. Hosp., Inc., 912 F.2d 129, 133

(6th Cir.1990)). When this Court reviews for

abuse of discretion, it will reverse only when it

28a

“is firmly convinced that a mistake has been

made.” Bush v. Rauch, 38 F.3d 842, 848 (6th

Cir.1994) (internal citations omitted).

To overcome this deferential standard of

review over a motion for relief from judgment, a

party must demonstrate that the district court

committed “a clear error of iudgment, such as

applying the incorrect legal standard,

misapplying the correct legal standard, or

relying upon clearly erroneous findings of fact.”

In re Ferro Corp. Derivative Litig., 511 F.3d

611, 623 (6th Cir.2008).

2. Analysis

Because the district court entered

judgment in the same decision that it construed

Defendants' renewed motion for summary

judgment as one for relief from judgment under

Rule 60(b), it was reasonable for the district

court to construe the entry of judgment as

coming before the conversion of Defendants'

motion,

Furthermore, a district court has broad

discretion to manage its docket. Reed v.

Rhodes, 179 F.3d 453, 471 (6th Cir.1999). A

district court's decision whether a late filing

results from “excusa:'e neglect” is subject to

review for abuse of discretion. A//en v. Murph,

194 F3d 722, 723-24 (6th Cir.1999).

29a

Defendants filed their renewed motion for

summary judgment more than one year after

the deadline for dispositive motions had passed

without seeking leave to file. Defendants

sought to introduce new facts-the 2007

resolutions that were passed after and in

response to the district court's summary

judgment decision—more than one year after

the close of discovery. Accordingly, based on the

district court's power to manage its own docket,

the court had ample discretion to strike

Defendants' late renewed motion for summary

judgment. By converting Defendants’ renewed

summary judgment motion to a Rule 60(b)

motion for’ relief from judgment = and

considering Defendants’ new facts and

arguments, the district court was giving

Defendants the benefit of the doubt.

Finally, we decline to review the district

court's subsequent denial of Defendants’ motion

for relief from fina) judgment because we lack

jurisdiction. Defendants filed their notice of

appeal on September 2, 2008 from the district

court's order of August 4, 2008, in which it

converted Defendants’ motion. The district

court did not deny Defendants’ Rule 60(b)

motion until September 30, 2008. Thus, this

order denying relief from judgment was not and

could not have been appealed pursuant to

Defendants' September 2, 2008 notice of

appeal. After the district court's September 30,

30a

2008 denial of relief from judgment,

Defendants had 30 days under Fed. R.App. P.

4(a)(1)(A) to file a notice of appeal of that order.

However, Defendants failed to do so. This

failure deprives this Court of jurisdiction over

Defendants' attempt to appeal from the

September 30, 2008 order.

CONCLUSION

For the reasons set forth above, we AFFIRM

the district court's order permanently enjoining

Defendants from erecting each of their three

Ten Commandment displays in the McCreary

County and Pulaski County courthouses.

CONCURRENCE

JULIA SMITH GIBBONS, Circuit Judge,

concurring.

I concur with the majority opinion's thoughtful

resolution of the constitutional issues

surrounding the 2005 Resolutions and _ its

conclusions on the procedural issues in this

case but write to emphasize one point. Given

that we lack jurisdiction to consider the

counties' appeal from the district court's denial

of their motion for relief from judgment under

Federal Rule of Civil Procedure 60(b), in which

they first brought the 2007 Resolutions to the

court's attention, I would not reach the issue of

whether the 2007 Resolutions evince a religious

gla

or secular purpose for the Foundations

Displays. In light of the Supreme Court's

cautioning that the counties' past actions need

not “forever taint any effort on their part to

deal with the subject matter,” McCreary

County v. ACLU, 545 U.S. 844, 873-74, 125

S.Ct. 2722, 162 L.Ed.2d 729 (2005), I would

leave this issue to the district court in the first

instance. See Jordon v. Gilligan, 500 F.2d 701,

707 (6th Cir.1974) (noting that appellate court

dicta has persuasive precedential effect only).

DISSENT

RYAN, Circuit Judge, dissenting.

This appeal is essentially a rerun of what

the parties argued and our panel majority

decided in ACLU v. McCreary County, 354 F.3d

438 (6th Cir.2003) (McCreary III ), and the

Supreme Court affirmed in McCreary County v.

ACLU, 545 U.S. 844, 125 S.Ct. 2722, 162

L.Ed.2d 729 (2005) ( McCreary IV ). The only

real difference is that this appeal presents the

question whether the defendants have “purged”

the “Foundations of Law and Government

Displays” of the religious “taint” of the Ten

Commandments. My colleagues think they

have not. I think they could not because there

was no “taint” to be “purged,” and even if there

were, the defendants' effort to do so has been

disqualified as a mere “litigating position.”

32a

The merits and demerits of the vitally

important First Amendment Establishment

Clause issues that are at the heart of this case

were thoroughly discussed in Judge Clay's

opinion for the panel and my dissenting opinion

in McCreary ///, and in Justice Souter's opinion

for the Supreme Court and Justice Scalia's

dissent in McCreary IV.

My colleagues have deftly foreclosed

consideration of the issue whether the counties’

2007 resolutions expressly disclaiming any

intention to endorse religion may have “purged

the taint” of religion from the third set of

displays with the dismissive observation that

the 2007 resolutions were “adopted only as a

litigating position.” With that nearly

Clausewitz-perfect blocking action, I am left

with nothing to add to what I wrote in

McCreary ITI, except the following:

1. I humbly associate myself with Justice

Scalia's powerful and logically compelling

explanation in McCreary /V that the displays

in question do not violate the First Amendment

and never did.

2. I cannot be too critical of my panel colleagues

who feel stare decisis bound by the Supreme

Court majority's persistent hostility to religion

and its refusal to acknowledge the historical

33a

evidence that religion, religious symbols, and

the support of religious devotion were of the

very essence of the values the Constitution's

authors and the ratifying legislators thought

they were preserving in the language of the

First Amendment.

The result, I fear, is that federal courts will

continue to close the Public Square to the

display of religious symbols as fundamental! as

the Ten Commandments, at least until the

Supreme Court rediscovers the history and

meaning of the words of the religion clauses of

the First Amendment and jettisons the flawed

reasoning of Lemon v. Kurtzman, 403 U.S. 602,

91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).

3. Perhaps the panel's decision in this case,

taken together with this court's decisions in

ACLU v. Mercer County, 432 F.3d 624 (6th

Cir.2005), and ACLU v. Grayson County, 591

F.3d 837 (6th Cir.2010), will move our court to

reconsider en banc what my colleagues have

held today, from which I strongly dissent. See

McCreary Ill and McCreary IV.

34a

No. 08-6069

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

AMERICAN CIVIL LIBERTIES UNION OI!

KENTUCKY, ETAL

Plaintiffs Appellee

MCCREARY COUNTY, KENTUCKY, ET AL

Defendants Appellant

BEFORE: RYAN, CLAY, and GIBBONS

Circuit Judge

The court having received a petition fo

rehearing en banc, which was circulated to al!

active judges of this court, none of whom

requested a vote on the suggestion for

rehearing en banc, the petition for rehearing

ha: ay 7) referred LO the origina! pane!

The panel has further reviewed thi

petition for rehearing and concludes that the

issues raised in the petition were fully

considered upon the original submission and

3 5a

decision of the case. Accordingly, the petition is

denied. Judge Ryan would grant rehearing for

the reasons stated in his dissent.

ENTERED BY ORDER OF THE COURT

/s/

Leonard Green. Clerk

36a

Kastern District of

Kentucky

FILED

08/04/08

At London

Leshe G Whitmer

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LONDON DIVISION

CIVIL ACTION NO. 99-507

AMERICAN CIVIL LIBERTIES UNION

OF KENTUCKY, et al.,

PLAINTIFFS,

V.

MCCREARY COUNTY, KENTUCKY, et al.,

DEFENDANTS,

MEMORANDUM OPINION AND ORDER

This matter is before the court on the

plaintiffs’ motion (DE 155) to alter or amend

sila

the court’s memorandum opinion and order of

September 28, 2007; the defendants’ renewed

motion for summary judgment (DE 159); and

the plaintiffs’ motion to strike the defendants’

renewed motion for summary judgment (DE

164). The court, having reviewed the record and

being otherwise sufficiently advised, will grant

the plaintiffs’ motion to alter or amend

judgment, deny the plaintiffs’ motion to strike,

and direct that the plaintiffs respond to the

defendants’ motion, which the court will

construe as a motion for relief from a final

judgment.

I. Factual Background and _ Precedural

History

In 1999, McCreary County and Pulaski

County, Kentucky, each posted a

copy of the Ten Commandments in their

respective courthouses.! Various County orders

and ceremonies surrounded the mounting of

these initial displays. The American Civil

Liberties Union of Kentucky, et al. (“ACLU”)

brought this action and sought a preliminary

Injunction requiring removal of the displays

based on alleged violations of the

Establishment Clause of the First Amendment

|The Ten Commandments were also posted in

the Harlan County Schools.

to the United States Constitution. Prior to the

resolution of the request for an injunction, the

Counties altered their displays and passed

resolutions authorizing those new displays. The

new displays included documents other than

the Ten Commandments, but the additional

documents were largely religious in nature.

The resolutions authorizing the second displays

included language emphasizing the importance

of religion. Following the posting of the second

2“Speci fically, the Courthouse Displays were

modified to consist of: (1) [the ‘endowed by the

Creator’ passage] from the Declaration of

Independence; (2) the Preamble to the

Constitution of Kentucky; (3) the national

motto of ‘In God We Trust’; (4) a page from the

Congressional Record .. . declaring it the Year

of the Bible and including a copy of the Ten

Commandments; (5) a proclamation — by

President Abraham IL.incoln designating April

30, 1863 a National Day of Prayer and

Humiliation; (6) an excerpt from President

Lincoln's ‘Reply to Loyal Colored People of

Baltimore upon Presentation of a_ Bible’

reading, “lhe Bible is the best gift God has ever

given to man.’ (7) a proclamation by President

Ronald Reagan marking 1983 the Year of the

Bible; (8) the Mayflower Compact.” McCreary

County, 354 F.3d at 442.

displays, this court granted the _ plaintiffs’

motion for a preliminary injunction against the

second displays and ordered removal of the

displays.

The Counties complied with the

injunction by removing the second displays, but

then posted new displays. Prior to posting these

third displays, the Counties hired new lawyers

and voluntarily dismissed an appeal from the

initial preliminary injunction. The third

displays consisted of nine documents of equal

size, including a copy’ of the Ten

Commandments, and explanatory phrases to

accompany each of the documents.’ The

Collection of documents in the third displays is

referred to as “The Foundations of American

Law and Government Display” (hereinafter

“Foundations Display”).4 At The time the third

3 In addition to the Ten Commandments, the

third displays included: the Magna Carta, the

Declaration of Independence, the Bill of Rights,

the lyrics of the Star Spangled Banner, the

Mayflower Compact, the National Motto, the

Preamble to the Kentucky Constitution, and a

picture of Lady Justice.

4The Purpose of the Foundations Display was

stated in the explanatory phrases

accompanying its documents. The explanatory

statement for the Ten Commandments reads:

AQa

displays were erected, the Counties did not

repeal the resolutions that authorized the

second displays or pass new resolutions

authorizing the third displays. This court,

acting upon a motion by the ACLU, expanded

the preliminary injunction to include the third

displays, and then the defendants appealed.

The Sixth Circuit Court of Appeals

upheld the preliminary injunction, McCreary

County, 354 F.3d at 438, whereupon the United

States Supreme Court granted the defendant's

petition for certiorari. After oral argument, but

before the Supreme Court opinion was

released, the counties repealed and repudiated

The ‘Ten Commandments have

profoundly influenced the formation of

Western legal thought and the formation of our

country. That influence is clearly seen in the

Declaration of Independence, which

Declared that “we hold these truths to be self-

evident, that all men are created equal, that

they are endowed by their Creator with certain

unalienable Rights, that among these are Life,

Liberty, and the pursuit of Happiness.” The

‘Ten Commandments provide the moral

background of the Declaration of Independence

and the foundation of our legal tradition.

McCreary County, 545 U.S. at 856

4la

the resolutions authorizing the second

displays.° McCreary County, 545 U.S. at 881.

The Supreme Court, finding an

unconstitutional religious motive in the posting

of the third (Foundations) displays, saw the

Counties’ repeals of the 1999 resolutions as

“acts of obviously minimal significance in the

evolution of the evidence,” McCreary County,

545 U.S. at 872 n. 19, and affirmed the Sixth

Circuit and this court’s preliminary injunction.

The defendants took no action between the

issuance of the Supreme Court opinion and the

court's memorandum opinion and order of

September 28, 2007, which is_~ under

reconsideration here.

On September 28, 2007, this court denied

the parties motions for summary judgment and

partial summary judgment and dismissed the

plaintiffs’ claims against the defendants Harlan

County School Districts and Don Musselman in

his official capacity as Superintendent of the

° The United States Supreme Court held oral

argument on March 2, 2005. On March 8, 2005,

and March 10, 2005, McCreary and Pulaski

Counties each adopted a_ resolution that

repealed and rescinded the December 1999

resolution relating to the Second displays.

Harlan County Schools with prejudice.6 The

McCreary County and Pulaski County fiscal

courts passed new resolutions on October 9,

2007 and October 10, 2007 respectively. ‘The

defendants, in their response to the motion to

alter or amend judgment and their renewed

motion for summary judgment, contend that

these October 2007 resolutions “purge the

taint” of unconstitutional motive found by the

Supreme Court.

II. Motion to Amend or Alter Judgment

A. Legal Standard

Rule 59(e) governs a motion to alter or

amend judgment. T7ritent IJInt7 Corp. v.

Kentucky, 395 F. Supp. 2d 521, 523 (E.D. Ky.

2005). The Court will reconsider a ruling under

Rule 59(e) if it has committed a legal error: if

there has been an intervening change in

controlling law; if there is newly discovered

evidence; or if necessary to prevent manifest

injustice. GenCorp, Inc. v. Am. Int?

Underwriters, 178F.3d 804, 834 (6t» Cir. 1999).

Rule 60(a) provides for corrections

based on “a clerical mistake or a mistake

6 The court dismissed the claims against the

Harlan County Schools and Musselman on the

grounds that they had become moot.

A8a

arising from oversight or omission whenever

one 1s found in judgment, order, or other part of

the record.” Rule 60(b) provides for relief from a

final judgment, order, or proceeding due to (1)

“mistake, inadvertence, surprise, or excusable

neglect”; (2) “newly discovered evidence that,

with reasonable diligence, could not have been

discovered in time to move for a new trial

under Rule 59(b); (3) “fraud (whether

previously called intrinsic or _ extrinsic),

misrepresentation, or misconduct by the

opposing party”; (4) the judgment being void;

and (5) the judgment having been satisfied,

released, or discharged” or if “it is based on an

earlier judgment that has been reversed or

vacated’ or if “applying it prospectively is no

longer equitable”; or (6) “any other reason that

justifies relief.” “[Rlelief under Rule 60(b) is

‘circumscribed by public policy favoring finality

of judgments and termination of litigation.”

Blue Diamond Coal Co. v. Trustees of UMWA

Combined Ben. Fund, 249 F.3d 519, 524 (6%

Cir. 2001) (quoting Wasfersong Ltd. v. Classic

Music Vending, 976 F.2d 290, 292 (6 Cir.

1992)).

B. Dismissal of the Harlan County

Action

Though in agreement that the Harlan

County action should be dismissed, the parties

dispute whether that dismissal should be with

prejudice.

44a

“A dismissal for lack of jurisdiction is

plainly not a determination of the merits of a

claim. Ordinarily such a dismissal is ‘without

prejudice.” Aorvettes, Inc. v. Galories Anspach,

Inc., 617 F.2d 1021, 1024 (3d Cir. 1980). See

also Landers v. Curran & Connors, Inc., 2006

U.S. Dist. Lexis 15770, at *5 (N.D. Cal. 20086).

Moreover, “lslome cases—mainly involving

private plaintiffs as well as private defendants

ind that discontinuance has mooted the

action; even then it may be noted that a new

action can be filed if the conduct should be

resumed.” Wright & Miller, Federa/ Practice

and Procedure, § 3533.5 (2d Supp. 2005). See

also id. (2d Supp. 2007) (“[Cllaims of mootness

may be rejected more readily in an action to

protect broad public interests rather than

specific private interests.”). In Washegesic v.

Bloomingdale Public Schools, 33 ¥.3d 679 (6th

Cir. 1994), an Establishment Clause challenge

to the hanging of a portrait of Jesus Christ in a

public school was not dismissed as moot even

though the plaintiff had graduated “because

the portrait does not affect students only — it

potentially affects any member of the public

who attends an event at the school.” /d. at 683;

see also id. at 682 (“The relevant inquiry in this

case is similar to that in any ‘public facility’

case: whether the individual plaintiff uses the

facility and suffers actual injury.”).

Consequently, the court will alter its previous

judgment and dismiss the Harlan county action

without prejudice because Jan Doe's case is not

moot, in that it affects any member of the

public, not just the plaintiff, and because there

is no certainty that the prohibited conduct

would not be resumed.

C. The Second Displays

The plaintiffs contend that it was not

appropriate for the court to decline to

invalidate the second displays on the grounds

that they “are no longer involved in the case”

and that instead the court should have made

its first preliminary injunction, which enjoined

the second displays, permanent. Specifically,

the plaintiffs contend that the court implicitly

and improperly concluded that the displays

were moot in dismissing the plaintiffs’

challenge, while the defendants contend the

judgment should not be altered as to these

displays because the issue it moot.

“A plaintiffs voluntary cessation of

allegedly unlawful conduct does not suffice to

moot a case,” Friends of the Earth, Inc. v.

Laidlaw Environmental Services (TOC) Inc.,

528 U.S. 167, 174 (200), and “[tlhe heavy

burden of persualding] the court that the

challenged conduct cannot reasonable be

expected to start up again hes with the party

asserting mootness.” Akers v. McGinnis, 352

F.3d 1030, 1035 (6t» Cir. 2003).

46a

In a case regarding a display in Garrard

County identical to the second displays at issue

in this case, the court stated as follows:

Because there is nothing to stop

Garrard County from erecting the

1999 Display again at any point in

time, a live controversy still exists.

Further, the county continues to

maintain a display that includes

the Ten Commandments, and it is

this to which the plaintiffs object.

Because the Ten Commandments

continue to be part of the current

display, the plaintiffs’ objections

and offense are presumed _ to

continue,

cn "

ACLU vy. Garrard County, Kentucky, 517 F.

Supp. 2d 925, 940 (E.D. Ky. 2007). Earlier in

their case, the defendants in Garrard County

had removed their version of the second

displays and replaced it with a version of the

Foundations Displays while a motion for a

preliminary injunction was under

consideration, and the second displays were

never temporarily enjoined. /d. at 928-29.

Moreover, courts regularly decline to declare a

challenge to discretionary conduct moot despite

significantly changed circumstances. See, e.g.,

Akersyv. McGinnis, 352 F.3d 1030, 1055 (6th

Cir. 2003) (finding challenge to discretion of the

MDOC [and] there is no guarantee that MDOC

A’ja

will not change back to its older, stricter Rule

as soon as this action terminates”); Amnex, Ince.

v. Cox, 351 F.3d 697, 704 (6th Cir. 2003) (In

dismissing an action against the Michigan

Attorney general as moot after he withdrew his

notice of intended action, “it was not proper for

the district court to rely on the mootness

doctrine, inasmuch as the Attorney General’s

withdrawal did not make it absolutely clear

that the allegedly wrongful conduct could not

be reasonably expected to recur.”); Cam J, Inc.

v. Loursville/Jefferson County Metro Gov't, 460

F.3d 717, 719-20 (6th Cir. 2006) (“[A]

controversy does not cease to exist by mere

virtue of a change in the applicable law... . In

other words, where the changes in the law

arguably do not remove the harm or threatened

harm underlying the dispute, the case remains

alive and suitable for judicial determination.”

(Internal quotation marks and_ citations

oinitted.)) In light of this judicial precedent,

there is no guarantee that the second displays

will not be posted again. Therefore, pursuant to

Rule 59(e), the court will alter its judgment

that the controversy over the second display is

moot, to correct a legal error and prevent

manifest injustice.

Regarding the substance of the second

displays, the defendants do not question the

court's finding that the second displays, the

defendants do not question the court’s finding

that the second displays are unconstitutional

48a

(DE153, 9). Consequently, the court is

compelled to alter its judgment under Rule

59(e), declare the second displays

unconstitutional, and enter a permanent

injunction against the second displays.

D. The First Displays

For the sake of clarity and completeness,

the court will also declare unconstitutional and

permanently enjoin the first displays, even

though they were removed and replaced by the

second displays before the court issued its

preliminary injunction against the second

displays. All that is said above with regard to

the second displays pertains with equal force to

the first displays.

K. The Third Displays

The plaintiffs contend that the court should

make permanent its preliminary injunction

enjoining the third displays because the court

found that the conduct of the defendants “is

unlawful on the undisputed facts” and,

therefore, the plaintiffs “are entitled to prevail

under Rule 56” (DE 155, 4).

Regarding the Foundations Displays that

McCreary County and Pulaski County propose

to post, this court found that “(tlhe only

remaining issue is whether the defendants

have taken actions since the Supreme court

decision that demonstrate a predominantly

secular purpose for posting the Foundations

Displays and that are sufficient to purge the

taint of their impermissible religious purpose”

(DE 153, 13). After finding the taint had not

been purged, the court denied all of the motions

for summary judgment because “[nlo triable

issues of fact exist for resolution by a jury” (DE

153, 13).

The court will not alter its findings that the

displays evidenced an unconstitutional purpose

and that this taint had not been purged as of

the date of its memorandum opinion and order.

The court concluded that it must find the taint

had not been purged because “the Supreme

Court found the taint inadequately purged” and

all of the actions pointed to by the defendants

“were taken by the Counties prior to the

decision of the Supreme Court and they were

not enough to purge the religious taint” (DE

Importantly, the Supreme Court found that

“new statement of purpose were presented only

as a litigating position, there being no further

authorizing action by the Counties’ governing

boards’ and “the sectarian spirit of the common

resolution found enhanced expression in the

third display, which quotes more the purely

religious language of the Commandments.”

McCreary County, 545 U.S. at 871-72.

Moreover, the Supreme Court noted that

“(flollowing argument in this case, in which the

resolutions were discussed, the McCreary and

Pulaski County Boards did repeal the

resolutions, acts of obviously minimal

significance in the evolution of evidence.” /d. at

872 n.19. Consequently, the court will alter its

judgment under Rule 59(e), declare’ the

foundations Displays at issue in this case

unconstitutional because the taint had not been

purged as of the date of the court’s

memorandum opinion and order of September

28, 2007, and permanently enjoin these third

displays

[I] The Defendants’ Renewed Motion for

Summary Judgment and the Plaintiffs’

Motion to Strike

As the Supreme Court noted, it

possible that the defendants might purge the

taint of unconstitutional purpose and be able to

post the third displays. In fact, the defendants

contend that they have already done so with

their resolutions of October 9-10, 2007. At issue

here, however, is the court’s memorandum

opinion and order of September 28, 2007, which

predates the new resolutions. Moreover, the

defendants’ renewed motion for summary

judgment, which was filed on October 30, 2007,

is also untimely because the deadline for

dispositive motions in his case was

November 3, 2006

5la

Given that the deadline for dispositive

motions has passed, but recognizing this court's

obligation to review the Counties’ new

resolutions to determine whether they have

purged the taint, the court will construe the

defendants’ renewed motion for summary

judgment as a motion for relief from a final

judgment under Rule 60(b) and will deny the

plaintiffs’ motion to strike. The court will also

direct that the plaintiffs respond to the

defendants’ motion to strike. The court will also

direct that the plaintiffs respond to the

defendants’ motion, with the time for filing

their response to run in accordance with the

Local Rules from the date of the entry of this

order.

Conclusion

Accordingly,

IT IS ORDERED that the plaintiffs’ motion to

alter or amend judgment (DE 153) 1s

GRANTED.

IT IS FURTHER ORDERED that the dismissal

of the Harlan County case is WITHOUT

PREJUDICE.

IT IS FURTHER ORDERED that the first

displays are DECLARED

UNCONSTITUTIONAL and are ENJOINED.

IT IS FURTHER ORDERED that the second

displays are DECLARED

UNCONSTITUTIONAL and are ENJOINED.

IT IS FURTHER ORDERED that the

third displays are DECLARED

UNCONSTITUTIONAL and are ENJOINED.

IT IS FURTHER ORDERED that the

plaintiffs motion to strike (DE 164) is

DENIED.

IT IS FURTHER ORDERED that the

plaintiffs shall respond to the defendants

renewed motion for summary judgment (DE

159), which the court will construe as a motion

for relief from a final judgment, with the time

for the filing of the response to run in

accordance with the Local Rules, beginning

from the date of entry of this order. The time

for the defendants to file a reply bnef if desired

shall also run in accordance with the Local

Rules

There being no just cause for delay, thi

order is FINAL and APPEALABLE

This matter shall be STRICKEN from the

active docket because the only remaining issue

in this matter is the defendants’ motion for

relief from a final judgment, which is a post

judgment motion

Signed on August 4, 2008

5 . iF |

/s/ Jennifer B. Coffman, Chief Judge

LJInited States District Court

Kastern District of Kentucky

United States District Court,

KD. Kentucky,

Southern Division.

London.

AMERICAN CIVIL LIBERTIES UNION OF

KENTUCKY, et al., Plaintiffs,

V

McCREARY COUNTY, KENTUCKY, et al.,

Defendants.

Civil Action No. 99-507-dJBC

Sept. 28, 2007

MEMORANDUM OPINION AND ORDER

JENNIFER B. COFFMAN, U.S. District Judge

This matter is before the court on the defen

dants' motion for summary judgment (DE 116)

and the plaintiffs' motions for summary judg

ment (DE 132) and partial summary judgment

(DE 134). The court, having reviewed the

record and being otherwise advised, will deny

the motions

[. Factual Background and Procedural History

Because the facts in this case have been

dis-cussed numerous times, see McCreary

County v. ACLU, 545 U.S. 844, 851-58 (2005);

ACLU v. Mercer County, 432 F.3d 624, 628-31

(6th Cir.2005); ACLU v. McCreary County, 354

F.3d 438, 440-44 (6th Cir.2003); ACLU v.

McCreary County, 145 F.Supp.2d 845, 846-47

(E.D.Ky.2001), the court will only briefly sum-

marize the factual and procedural history.

In 1999, McCreary County and Pulaski

County, Kentucky, each posted a copy of the

Ten Com-mandments in their respective

courthouses. Various county orders’ and

ceremonies sur-rounded the mounting of these

initial displays. The American Civil Liberties

Union of Kentucky, et al. (“ACLU”) brought

this action and sought a preliminary injunction

requiring removal of the displays based on

alleged violations of the Establishment Clause

of the U.S. Constitution. Prior to the resolution

of the request for an injunction, the Counties

altered their displays and passed resolutions

authorizing those new displays. The new

displays included documents other than the

Ten Commandments, but the _ additional

documents were largely religious in nature.!

“Specifically, the Courthouse displays were

modified to consist of: (1) [the ‘endowed by the

Creator’ passage] from the Declaration of

Independence; (2) the Preamble to the

Constitution of Kentucky; (3) the national

56a

The resolutions authorizing the second displays

included language emphasizing the importance

of religion. Following the posting of the second

displays, this court granted the _ plaintiffs’

motion for a preliminary injunction and

ordered that the displays be removed.

The Counties complied with the injunction by

removing the displays, but then posted new

displays. Prior to posting these third displays,

the Counties hired new lawyers and voluntarily

dismissed an appeal from the initial

preliminary injunction. The third displays

consisted of nine documents of equal size

motto of ‘In God We Trust’; (4) a page from the

Congressional Record ... declaring it the Year of

the Bible and including a copy of the Ten

Commandments; (5) a proclamation by

President Abraham Lincoln designating April

30, 1863 a National Day of Prayer and

Humiliation; (6) an excerpt from President

Lincoln's ‘Reply to Loyal Colored People of

Baltimore upon Presentation of a_ Bible’

reading, “he Bible is the best gift God has ever

given to man.’; (7) a proclamation by President

Ronald Reagan marking 1983 the Year of the

Bible; (8) the Mayflower Compact .” McCreary

County, 354 F.3d at 442

2s

~]

Including a copy of the Ten Commandments,

and explanatory phrases to accompany each of

the documents.” The collection of. documents in

the third displays is referred to as “The

Foundations of American Law and Government

Display” (hereinafter “Foundations Displays”).

In addition to the Ten Command-ments, the

third displays included: the Magna Carta, the

Declaration of Independence, the Bill of Rights,

the lyrics of the Star Spangled Banner, the

Mayflower Compact, the National Motto, the

Preamble to the Kentucky Constitution, and a

picture of Lady Justice

> The purpose of the Foundations Displays was

stated in the explanatory phrases

accompanying its documents. The explanatory

statement for the ‘l’en Commandments reads

“The Ten Commandments have profoundly

influenced the formation of Western legal

thought and the formation of our country. That

influence is clearly seen in the Declaration of

Independence, which declared that ‘We hold

these truths to be self-evident, that all men are

created equal, that they are endowed by their

Creator with certain unalienable Rights, that

among these are Life, Liberty, and the pursuit

of Happiness. The Ten Commandments

provide the moral background of _ the

58a

At the time the third displays were erected, the

Counties did not repeal the resolutions that

authorized the second displays or pass new

resolutions authorizing the third displays. This

court, acting upon a motion by the ACLU,

expanded the preliminary injunction to include

the third displays, and then the defendants

appealed.

The Sixth Circuit Court of Appeals

upheld the preliminary injunction, McCreary

County, 354 F.3d at 438, whereupon the United

States Supreme Court granted the defendants’

petition for certiorari. After oral argument, but

before the Supreme Court opinion was

released, the Counties repealed and repudiated

the resolutions authorizing the _ second

displays.4 McCreary County, 545 U.S. at 881.

The Supreme Court saw the Counties' repeals

of the 1999 resolutions as “acts of obviously

Declaration of Independence’ and the

foundation of our legal tradition.”

McCreary County, 545 U.S. at 856

‘ Oral arguments were held on March 2, 2005

before the United States Supreme Court. On

March 8, 2005, and March 10, 2005, McCreary

and Pulaski Counties, respectively, each

adopted a_ resolution that repealed and

rescinded the December 1999 _ resolution

relating to the second displays.

59a

minimal significance in the evolution of the

evidence,” McCreary County, 545 U.S. at 872 n.

19, and affirmed the Sixth Circuit and this

court's preliminary injunction. The defendants

have taken no action since the Supreme Court

issued its opinion.

Il. Standard of Review

A. Summary Judgment Standard

Summary judgment is appropriate only

when there are no genuine issues of material

fact in dispute and the moving party is entitled

to judgment as a matter of law. Ce/otex Corp. v

Catrett, 477 U.S. 317 (1986). The moving

party's burden can _ be satisfied by

demonstrating that there is an absence of

evidence to support the non-moving party's

case. /d. at 324-25. To survive summary

judgment, the non-moving party must come

forward with evidence on which the jury could

reasonably find in its favor. Anderson \

Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)

The non-moving party must present more than

a mere scintilla of evidence to defeat a motion

for summary judgment. Street v. J.C. Bradford

& Co., 886 F.2d 1472, 1479 (6th Cir.1989)

Fed.R.Civ.P. 56(e). The court must view all of

the evidence in the light most favorable to the

party opposing summary judgment See

Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986)

Permanent Injunction Standard

In general, “ltlhe standard for a

preliminary injunction is essentially the same

as for a permanent injunction with the

exception that the plaintiff must show a

likelihood of success on the merits rather than

actual success.” Amoco Prod. Co. v. Village of

Gambell 480 U.S. 531, 546 n. 12 (1987) (citing

U/niv. of Texas v. Camenisch, 451 U.S. 390, 392

(1981)). In the context of the present case, a

permanent injunction Is appropriate only if a

party can establish that it suffered a

constitutional violation from which it will suffer

continuing and irreparable injury for which no

adequate remedy at law exists. X.g., Women's

Med. Prof] Com. v. Baird, 438 F.3d 595. 602

(6th Cir.2006); see also Kallstrom v. City of

Columbus, 136 F.3d 1055, 1067 (6th Cir.1998)

(holding that “[wlhere the plaintiff establishes

a constitutional! violation after a trial on the

merits, the plaintiff will be entitled to

permanent injunctive relief’ after showing “1) a

continuing irreparable injury if the court fai

to issue the injunction, and 2) the lack of an

adequate remedy at law’)

ITT, Legal Analysis

The plaintiffs request that the court

make permanent the preliminary injunctions

issued against McCreary and Pulaski

Counties.® The plaintiffs’ motion for partial

summary judgment seeks to make permanent

the court’s first preliminary injunction which

enjoined the second displays, and their motion

for summary judgment seeks to make the

courts supple-mental preliminary injunction

permanent. The defendants, in turn, argue that

the plaintiffs’ challenges to the second displays

are moot, and that a permanent injunction

would be inappropriate.® As discussed below

the court will deny all of the motions because

none of the parties are entitled to judgment as

a matter of law at this time and further

because the second displays are no longer

involved in the case

A. The Establishment Clause and _ the

“Purpose” Analysis

Initially this case

Schools as well. Because

Harlan County Si hools

court will dism}) tho eC

The defendants al aise the argument

that the plaintiffs lack standing. This court, the

Sixth Circuit, and the Supreme Court |

previously reached the merit

?

however. SO the court WiLL not now cr

sue of standing

Government action violates the

Establishment Clause if the action does not

have “a secular legislative purpose.’ Lemon \

Kurtzman, 403 U.S. 602, 612 (1971). The

government must :inaintain religious neutrality

and is clearly not doing so when it “acts with

the ostensible and predominant purpose of

advancing religion ..... McCreary County, 545

U.S. at 860. In determining whether there 1s a

violation of the Establishment Clause, courts

may look to the acting party’s purpose, and that

‘purpose’ analysis “may be dispositive of the

constitutional enquiry UcCreary Counts

AA5 LIS at by () |

The secular purpose advanced by the

yovernment actors must be more than a “trivia

rationalization Id. at 859 AlIthough a

il.

evislature tated reason will generally get

deference, the secular purpose required has ti

be genuine, not a han and not mere

econdary to a religious objective ld at 864

(citing Santa ke Indep. Sch. Dist. v. Doe, 53

[TS 990. 308 (29000)): see also id at R65

. 2 eculal OS¢ ] | el

ufficient

Wher ItIN1Z) t} '

ooks to official actions and “openly avaulabl

lata’ to determine whether the government

bectives are religiou ld. at 862-63 Cofticia

ohiective emervre Irom re id) \ qgiscovel ible

63a

drafter's heart of hearts’). The “purpose”

analysis should take into account the evolution

and development of the displays at issue. /d.

The court cannot ignore the history of the

religious government action, including the

progression of the contested displays. /d. at

859.

1. The Context of the Government Action

Whether the government’s purpose is to

advance religion is measured by an “objective

observer” standard. The objective observer is

presumed to take into account the “text,

legislative history, and implementation” of the

government action. McCreary County, 545 U.S.

at 862 (quoting Santa Fe, 530 U.S. at 308). The

sujective ubserver has knowledge of not only

the most recent events surrounding a

government action, but also any previous

events, history, and background. As _ the

standard by which purpose is determined, the

objective observer is “presumed to be familiar

with the history of the government’s actions

and competent to learn what history has to

show.” /d. at 866. In response to the

defendants’ argument that purpose should be

determined based on the most recent events

rather than the entire series of events, the

Supreme Court specifically noted that “the

world is not made brand new every morning.”

Id. (noting that “reasonable observers have

reasonable memories’).

Since context matters when a_ court

determines whether rovernment action

constitutes a violation of the Constitution, the

court's decision may be altered by factors other

than the action itself. Thus, government action,

such as posting the Foundations Displays, may

be found constitutional in one situation and yet

unconstitutional if done under different

circumstances in a separate instance. The

Supreme Court acknowledged that “it will be

the rare case in which one of two identical

displays violates the purpose prong” but also

states, “where one display has a_ history

manifesting sectarian purpose that the other

lacks, it is appropriate that they be treated

differently....” /d. at 866 n. 14. The intent of the

government action has a bearing on _ its

constitutionality, and the court may consider

the context surrounding the action when

determining the underlying purpose. See id.

(“[1]t will matter to objective observers whether

posting the Commandments follows on the

heels of displays motivated by sectarianism, or

whether it lacks a history demonstrating that

purpose.”).

When a_ display identical to the

Foundations Displays at issue here was posted

in Mercer County, Kentucky, the trial court

found no constitutional violation. Upholding

that decision, the Sixth Circuit found that

Mercer County's stated purpose, which was to

recognize American legal traditions, was

supported by the context and = was

predominantly secular.’ Mercer County, 432

F.3d at 627, 632. In Mercer County, only one

display had been created and one county action

had been taken, both of which occurred after a

county resident's request to erect the

Foundations Displays. That same _ resident

actually paid for and hung the displays himself.

There were no prior unconstitutional displays

in the county to taint the context and history as

viewed by an objective observer. The Sixth

Circuit found that “[a] reasonable observer

would not view this display as an attempt by

Mercer County to establish religion....” Jd. at

632.

Mercer County and the instant case

involve identical government action which is

’ “(T]he purpose for erecting the ‘Foundations'

display was that ‘all of the documents,

including the Ten Commandments, have played

a role in the formation of our system of law and

government.... [The] display is not intended

[to], nor does it, endorse or promote religion. It

simply acknowledges our history. “ Mercer

County, 432 F.3d at 627, 632 (quoting Affidavit

of Mercer County Judge Executive Charles H.

McGinnis).

66a

constitutional in one instance but

unconstitutional in the other. As_ the

defendants acknowledge in their motion, “(t]he

Supreme Court in this case held that the first

two displays evidenced a_ predominantly

religious purpose.” DE 117 at 10 (citing

McCreary County, 545 U.S. at 844). The

Supreme Court additionally found that the

Counties’ purpose did not change with the

posting of the third displays. McCreary County,

545 U.S. at 873. In McCreary and Pulaski

Counties, the objective observer would be

aware of the history of the displays and thus

would have knowledge of the impermissible

purpose. In Mercer County, the objective

observer sees no such taint. The content of the

displays, without consideration of its context, is

thus not dispositive.

2. Purging the Taint of the impermissible

Purpose

Although the Supreme Court found that

the Counties in this matter had = an

impermissible purpose that made their actions

unconstitutional and that this’ purpose

continued even with the third displays, and

even after the second-display resolutions were

repudiated, the Court also found “that the

Counties' past actions [do not] forever taint any

effort on their part to deal with the subject

matter.” McCreary County, 545 U.S. at 873-74.

Since it is possible to purge the taint of the

impermissible religious purpose, it necessarily

follows that the injury from the constitutional

violation is not “continuing” as required by the

standard for a permanent injunction. See

Mercer County, 432 F.3d at 633 (“The

[McCreary County | majority narrowly tailored

its opinion to the facts as they existed at the

time of appeal, even to the point of leaving open

the possibility on remand of the district court’s

lifting the preliminary injunction and denying

permanent relief.” (citing McCreary County,

545 U.S. at 873-74)); see also ACLU vy.

Rutherford County, No. 3:02-CV-0396, 2006

WL 2645198, at *10 (M.D.Tenn. Sept. 14, 2006)

(“‘Combined, McCreary County and Mercer

County teach that (1) a public body may post

the Ten Commandments in a public building if

the display's purpose is secular and the display

does not have the primary purpose of

advancing or endorsing religion, and, (2) most

pertinent to the issues at hand, even if the

same public body previously attempted to post

the Ten Commandments in an unconstitutional

manner, it may be able to post the Ten

Commandments in_ the’ future in a

constitutionally permissible manner.”). If the

Counties take sufficient actions that purge the

taint of their impermissible religious purpose,

then the injury claimed by the plaintiffs will no

longer exist and the injunction could be

removed.’ Therefore, the court will deny the

plaintiffs’ motion for summary judgment, which

seeks to permanently enjoin the third displays,

because they are not entitled to a permanent

injunction as a matter of law.

8 A district court in Tennessee denied a

permanent injunction in a similar case, stating,

“Plaintiffs' request is too broad because it

forbids the posting of the Ten Commandments

in public buildings in Rutherford County from

now until eternity. Plaintiffs have not

demonstrated that they will suffer irreparable

harm if the Court does not permanently enjoin

the display because Plaintiffs have not proven

that the constitutional violation found by this

Court will be ongoing in the future.” ACLU v.

Rutherford County, No. 3:02-CV-0396, 2006

WL 2645198, at *1l1 (M.D.Tenn. Sept. 14,

2006).

» The plaintiffs’ motion for partial summary

judgment is moot because it seeks to

permanently enjoin the second set of displays,

which no longer constitutes an ongoing

controversy between the parties. The court may

adjudicate only ongoing controversies, and an

issue be-comes moot when the claims presented

have been satisfied or are no longer active, or

when the parties lack an interest in the

outcome of the case. See Chirco v. Gateway

Oaks, LLC, 384 F.3d 307, 309 (6th Cir.2004)

69a

Turning from the plaintiffs’ motion to the

defendants' motion, this court must reject the

claim that the Counties’ actions taken to date

have purged the taint of an impermissible

religious purpose. The defendants have taken

no action since repealing and repudiating the

resolutions which accompanied the’ second

displays—renunciations which the Supreme

Court rejected as “acts of obviously minimal

significance in the evolution of the evidence,”

McCreary County, 545 U.S. at 872 n. 19, and a

“litigating position.” Jd. at 848.

If defendants' past actions’ are

insufficient to purge the taint, what will

suffice? To constitutionally post the

Foundations Displays, the Counties in the

present action “must show that they have

purged themselves of their original sectarian

purpose relating to the posting of the Ten

Commandments.” Rutherford County, 2006 WL

2645198, at *10. The Counties will have purged

the taint only after there are “ ‘genuine changes

in constitutionally significant conditions/”

(citing Powell v. McCormack, 395 U.S. 486, 496

(1969)). The defendants have disavowed any

intent to reinstate the second displays. See DE

136 at 1; DE 117 at 15.

70a

which could include a demonstration of “a

predominantly secular purpose.” /d. (citing

McCreary County, 545 U.S. at 874, and Mercer

County, 432 F.3d at 632-33).

When presented with such a genuine

change, “district courts are fully capable of

adjusting preliminary relief to take account of

genuine changes in constitutionally significant

conditions.” McCreary County, 545 U.S. at 874

(citing Ashcroft v. ACLU, 542 U.S. 656 (2004)).

Moreover, “the district court should be willing

to modify its judgment should the counties

later demonstrate a predominantly secular

purpose.” Mercer County, 432 F.3d 624, 632 n.

6 (citing McCreary County, 545 U.S. at 873-74).

This court will modify its judgment when

the “counties later demonstrate a

predominantly secular purpose,” sd., but they

have not yet done so. The Supreme Court

reviewed the history of the displays-including

repeal and repudiation of the _ resolutions

accompanying the second displays—and found

that “[nlo reasonable observer could swallow

the claim that the Counties had cast off the

objective so unmistakable in the earlier

displays.” McCreary County, 545 U.S. at 872.

The Counties claim to “have done every-thing

they can to distance themselves from the

second display, including changing counsel,

changing the display, and eventually repealing

the December, 1999, Resolution.” DE 117 at 3.

71a

Yet, all of those actions were taken by the

Counties prior to the decision of the Supreme

Court and they were not enough to purge the

religious taint. If the Supreme Court found the

taint inadequately purged, so must this court.

Therefore, the court will deny the

defendants’ motion for summary judgment

because they are not entitled to judgment as a

matter of law.

B. Resolution of This Case

Although it is possible to constitutionally

post the Ten Commandments, the defendants’

actions were unconstitutional and remain so

until they have purged the taint of their

impermissible religious purpose.

A trial in this matter would be

unavailing. No triable issues of fact exist for

resolution by a jury. The only remaining issue

is whether the defendants have taken actions

since the Supreme Court decision that

demonstrate a pre-dominantly secular purpose

for posting the Foundations Displays and that

are sufficient to purge the taint of their

impermissible religious purpose. Thus, as a

matter of law, neither the defendants nor the

plaintiffs are entitled to summary judgment.

Accordingly,

IT IS ORDERED that the parties’ motions for

summary judgment or partial summary

judgment (DE 116, 132, 134) are DENIED.

IT IS FURTHER ORDERED that the plain-

tiffs’ claims against the defendants Harlan

County School District and Don Musselman are

DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that this matter is

referred to U.S. Magistrate Judge James B.

Todd for the purpose of conducting a settlement

conference, which is scheduled for October 22,

2007, at 9:00 a.m. in Lexington.

(3a

[McCREARY COUNTY, KENTUCKY SEAL]

BLAINE PHILLIPS COUNTY

JUDGE/EXECUTIVE

OFFICE OF THE JUDGE/EXECUTIVE

Fax: (606) 376-9499 TDD: 1-800-247-2510

McCREARY COUNTY

1 NORTH MAIN STREET

P.O. BOX 579

WHITLEY CITY, KENTUCKY 42653

(606) 376-2413

MCCREARY COUNTY FISCAL COURT

RESOLUTION 071009-2

RESOLUTION REGARDING FOUNDATIONS

OF AMERICAN LAW & GOVERNMENT

DISPLAYS

WHEREFORE, McCreary County displayed

certain historical documents on the wal! of the

McCreary County court house called the

“Foundations of American Law and

Government’ display;

WHEREFORE, since the Foundations of

American Law and Government display was

originally displayed, elections have taken place

in McCreary County which have resulted in the

election of a new County Judge/Executive and

three new Fiscal Court members, and only one

of the Fiscal Court members currently serving

was a part of the original decision to display

the Foundations of American Law and

Government display;

WHEREFORE, the Sixth Circuit Court of

Appeals recently found that the Foundations of

American Law and Government display was

constitutional in a display in the Mercer

County court house:

WHEREFORE, the Seventh Circuit Court of

Appeals recently held that the Foundations of

American Law and Government display was

constitutional in the court house in Elkhart

County, Indiana;

WHEREFORE, the United States District

Court for the Eastern District of Kentucky

recently held that the Foundations of American

Law and Government was constitutional in a

display in Rowan County, Kentucky;

WHEREFORE, McCreary County desires to

display the Foundations of Law and

Government display in its entirety in the

McCreary County court house:

WHEREFORE, McCreary County firmly

believes in educating its citizens regarding the

history of the County, the State of Kentucky

and the United States of America:

WHEREFORE, The Foundations of American

Law and Government display contains some of

the documents and symbols that displayed an

important role in the foundation = and

development of the system of law and

government of the United States, the State of

Kentucky and McCreary County;

WHEREFORE, McCreary County wishes to

clarify and restate its purpose to display the

Foundations of Law and Government display;

WHEREFORE, the purpose to display the

Foundations of American Law and Government

display is to educate the citizens of McCreary

County on some of the documents and symbols

that played an important role in_ the

foundations, development and history of

McCreary County, the State of Kentucky and

the United States of America;

WHEREFORE, McCreary County wishes to

expressly state that it does not have a religious

motivation for its desire to continue to display

the Foundations of American Law and

Government display;

THEREFORE BE IT RESOLVED that the

purpose of McCreary County in desiring to

display the Foundations of American Law and

government display is educational and

historical, to educate the citizens of McCreary

County about some of the historical documents

and symbols that played a role in the

foundation and development of the system of

law and government in McCreary County, the

State of Kentucky and the United States of

America;

BE IT FURTHER RESOLVED that McCreary

County expressly disclaims any purpose to

endorse religion in its desire to display the

Foundations of American Law and Government

display and expressly repeals, repudiates and

disavows any public statements or testimony

that may be mistakenly construed to the

contrary,

BE IT FURTHER RESOLVED that this

Resolution and the Resolution passed by the

McCreary County Fiscal Court on March 8,

2005, shall be and hereby are the only

statements of the purpose of the Foundations of

American Law and Government display

Should there be any other statements, official

or otherwise, from this body or any other

governmental official of McCreary County, that

claim to state the purpose of the Foundations of

American Law and Government display, they

are herby overruled, superceded, repealed and

replaced by this Resolution

DONE at the City of Whitely City, County of

McCreary, Commonwealth of Kentucky, on this

9th day of October 2007, in witness whereof we

have hereunto set our hands.

/s/ Blaine Phillips

Judge/Executive of McCreary County

/s/ Judy Redden

Magistrate of McCreary County

vee /s/ Teddy Coffey

Magistrate of McCreary County

/s/ Roger Phillips .

Magistrate of McCreary County

Magistrate of McCreary County

RESOLUTION REGARDING DISPLAY OF

HISTORICAL DOCUMENTS

WHEREAS, in October, 2000, the Pulaski

County Fiscal Court authorized the display of a

grouping of historical documents called the

Foundations of American Law & Government

display;

WHEREAS, federal courts in Kentucky

and [ndiana have stated and held that the

Foundations of American Law & Government

display is constitutional;

WHEREAS, Pulaski County has a desire

to display the Foundations of American Law &

Government display in its entirety, including

all the documents in the display;

WHEREAS, on March 10, 2005, the

Pulaski County Fiscal Court adopted a

Resolution clarifying and restating the purpose

if the Foundations of Law & Government

display;

WHEREAS, Pulaski County has had

intervening elections since the time _ the

Foundations of Law & Government display was

first authorized by the Pulaski County Fiscal

Court and since the March 10, 2005, Resolution

was passed;

79a

WHEREAS, the intervening elections

have resulted in the election of a new County

Judge Executive and four new magistrates to

the Fiscal Court;

WHEREAS, only one magistrate

currently on the Pulaski County Fiscal Court

participated in the decision to authorize the

Foundations of American Law & Government

display;

WHEREAS, it has become necessary for

Pulaski County to restate its purpose for its

desire to display the Foundations of American

Law & Government display;

WHEREAS, Pulaski County desires to

educate the citizens of Pulaski County about

some of the important § and _ historical

documents, symbols and other items that have

factored into the formation and continuance of

the American system of law and government;

WHEREAS, the Pulaski County Fiscal

Court believes that the Foundations of Law &

Government display accomplishes this

historical and educational purpose;

WHEREAS, the only purpose of the

County in desiring to display the Foundations

of American Law & Government display in its

entirety us educational and historical;

WHEREAS, Pulaski County rejects any

intention or motivation or purpose to endorse

religion by displaying the Foundations of

American Law & Government display in its

entirety;

THEREFORE BE IT RESOLVED that

Pulaski County’s purpose for desiring to display

the Foundations of American Law &

Government display is educational and

historical, to educate the public about some of

the historical documents, symbols and other

items that played a role in the foundation and

development of the system of law and

government in Pulaski County, the State of

Kentucky and the United States of America;

BE IT FURTHER RESOLVED that

Pulaski County expressly denies any purpose to

endorse religion in its desire to display the

Foundations of American Law & Government

display in its entirety and expressly repeals,

repudiates and disavows any public statements

or testimony that may be mistakenly construed

to the contrary:

BE IT FURTHER RESOLVED that this

Resolution and the Resolution passed by the

Pulaski County Fiscal Court on March _ 10,

2005, shall be and hereby stand as the only

statements of the purpose of the Foundations of

American Law & Government display. If there

are any other statements, official or otherwise,

from this body or any other governmental

official of Pulaski County, that claim to state

the purpose of the Foundations of American

Law & Government display, they are herby

overruled, superceded, repealed and replaced

y

by this Resolution.

DONE at the city of Somerset, County of

McCreary, Comimonwealth of Kentucky, on this

9th day of October 2007, in witness whereof we

have hereunto set our hands.

___/s/ Barty Bullock _

Judge/Executive of Pulaski County

____s/s/ Kenny Isaacs |

Magistrate of Pulaski County

/s/ Mike Wilson _

Magistrate of Pulaski County

/s/ Tommy Barnett 3rd

Magistrate of Pulaski County

on /s/ Glenn H. Maxey 4th

Magistrate of Pulaski County

_______/s/ Mike Strunk __

Magistrate of Pulaski County

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Magistrate of Pulaski County

Magistrate of Pulaski County