Opinion
Civil No: 2:03-CV-839 J
May 28, 2004
ORDER RE: CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS, ETC. (Fed.R.Civ.P. 12(c))
FACTUAL PROCEDURAL HISTORY
Plaintiffs filed this action on September 25, 2003. ( See Complaint, filed September 25, 2003 (dkt. no. 1).) In their Amended Complaint filed a month later, Plaintiffs allege that the presence of a Ten Commandments monument in a Pleasant Grove City park violates the First Amendment to the United States Constitution and Article I, Section 4 of the Utah Constitution. ( See Amended Complaint, filed October 31, 2003 (dkt. no. 2), at ¶ 19.)
Notably, Plaintiffs concede in their Amended Complaint that "[t]he claims made and asserted by plaintiffs in this action are contrary to the decision of the United States Court of Appeals for the Tenth Circuit in Anderson v. Salt Lake City Corp., 475 F.2d 29 (10th Cir. 1973) and a recent ruling by this Court, the Hon. Bruce S. Jenkins, judge presiding. Summum v. City of Ogden, 152 F. Supp.2d 1286 (D. Utah 2001)." (Amended Complaint at ¶ 22 (footnote omitted).)
On November 24, 2003, Plaintiffs filed a Motion and Memorandum for Judgment on the Pleadings, asserting that they are entitled to a preliminary hearing and judgment on the pleadings pursuant to Federal Rules of Civil Procedure 12(d) and 12(c) as to Defendants' First Defense that Plaintiffs' Amended Complaint fails to state a claim upon which relief can be granted against the Defendants. ( See Plaintiffs' Request for Preliminary Hearing Motion for Judgment on the Pleadings, filed November 24, 2003 (dkt. no. 3), at 2; Plaintiffs' Memorandum re: Request for Preliminary Hearing Motion for Judgment on the Pleadings, filed November 24, 2003 (dkt. no. 4), at 2.)
Defendants respond that because Plaintiffs acknowledge that Tenth Circuit law does not favor their claims, judgment on the pleadings should be entered on behalf of Defendants; "[D]efendants agree that based on the law cited by plaintiffs, the Amended Complaint must be dismissed. Accordingly, defendants do not object to the entry of judgment on the pleadings, dismissing plaintiffs' Amended Complaint." (Defendants' Response to Plaintiffs' Request for Preliminary Hearing Motion for Judgment on the Pleadings, filed December 5, 2003 (dkt. no. 9), at 2.)
Plaintiffs' Reply attempted to clarify their original motion: "Plaintiffs have simply asked that the court rule upon Defendants' First Defense as per FRCP 12(c) and (d). Plaintiffs have not asked and do not ask that their Amended Complaint be dismissed." (Plaintiffs' Reply Memorandum re: Request for Preliminary Hearing Motion for Judgment on the Pleadings, filed December 10, 2003 (dkt. no. 10), at 2.) Plaintiffs also filed a "Request for Ruling" (dkt. no. 11).
On February 5, 2004, Defendants moved the court for judgment on the pleadings on all of Plaintiffs' claims. ( See Defendants' Motion for Judgment on the Pleadings, filed February 5, 2004 (dkt. no. 16); Defendants' Memorandum of Law in Support of Defendants' Motion for Judgment on the Pleadings, filed February 5, 2004 (dkt. no. 17).) Defendants reiterated that Tenth Circuit law is clear as to the merits of Plaintiffs' claims, and cannot be overturned by this Court.
Plaintiffs' response to Defendants' motion is largely a restatement of their own motion, but in a footnote, Plaintiffs indicate what they are trying to achieve: "Plaintiffs seek a review and an overturning of that [ Anderson] decision." (Plaintiffs' Response re: Defendants' Motion for Judgment on the Pleadings, filed February 12, 2004 (dkt. no. 22), at 2 n.l.) Defendants filed their Reply Brief on February 17, 2004 (dkt. no. 23).
The cross-motions for Judgment on the Pleadings were heard before the Court on April 6, 2004, after which the Court took the matter under advisement. ( See Minute Entry, dated April 6, 2004 (dkt. no. 32).)
DISCUSSION
The court of appeals directly addressed the legal issue now raised by Plaintiffs' federal constitutional claim in Anderson v. Salt Lake City Corp., 475 F.2d 29 (10th Cir.), cert. denied, 414 U.S. 879 (1973). The Anderson court gave deference to history in describing a monument inscribed with the Ten Commandments as "primarily secular, and not religious in character; that neither its purpose or effect tends to establish religious belief." Anderson, at 34. In the second case cited by Plaintiffs' pleadings, Summum v. City of Ogden, this court observed that Anderson "is still good law and this Court is disciplined and bound by Anderson." Summum, 152 F. Supp.2d at 1294.
Because of the ordered structure of the federal system, this Court cannot overrule Anderson simply because Plaintiffs have pleaded claims ultimately seeking that result, or because other courts have reached varying conclusions when presented with similar questions. See Annotation, First Amendment Challenges to Display of Religious Symbols on Public Property, 107 A.L.R.5th 1, 62-90 (2003 Supp. 2003), and cases cited therein. Only the court of appeals can change its institutional mind, unless the United States Supreme Court decides a case that provides an unambiguous rule which all must follow. "Because the United States Supreme Court has not spoken directly on the issue . . . and the Tenth Circuit has spoken directly on that issue, this court is bound to follow the Tenth Circuit." Davis v. Utah State Tax Comm'n, 96 F. Supp.2d 1271, 1279 (D. Utah 2000).
The case law of other circuits on this issue appears to be in flux. See, e.g., ACLU Nebraska Foundation v. City of Plattsmouth, Nebraska, 358 F.3d 1020 (8th Cir. Feb 18, 2004), rehearing en banc granted and opinion vacated, (Case No. 02-2444) available athttp://www.ca8.uscourts.gov/orders/ 04/04/022444_2.pdf (Apr 06, 2004); Books v. City of Elkhart, Indiana, 235 F.3d 292 (7th Cir. 2000), mandate stayed, 239 F.3d 826 (7th Cir.), cert. denied, 532 U.S. 1058 (2001); Van Orden v. Perry, 351 F.3d 173 (5th Cir. 2003), rehearing en banc denied, 89 Fed.Appx. 905, — F.3d —, 2004 WL 63551 (5th Cir. January 5, 2004); Freethought Society of Greater Philadelphia v. Chester County, 334 F.3d 247 (3rd Cir. 2003).
An appellate panel faces similar constraints: "We are not at liberty to overrule or disregard the precedent of an earlier panel absent en banc reconsideration or a superseding contrary decision of the United States Supreme Court." Summum v. Callaghan, 130 F.3d 906, 912 n. 8 (10th Cir. 1997) (citation omitted); see Summum v. City of Ogden, 297 F.3d 995, 999 (10th Cir. 2002) ("since our circuit has held that another municipality did not violate that Clause indisplaying an identical Ten Commandments Monument, see Anderson v. Salt Lake City Corp., 475 F.2d 29, 30-34 (10th Cir. 1973), circuit precedent forecloses us from identifying such a violation here. . . . At oral argument, Summum's counsel conceded that, absent en banc reconsideration of Anderson v. Salt Lake City Corp., . . . this panel could not reverse the district court's grant of summary judgment, in favor of the City of Ogden. . . .")
Furthermore, the Court is not inclined to overrule these two cases and reiterates the sound reasoning in both Anderson and Summum which defers to history and describes a version of the Ten (or Twelve) Commandments as a source of public law, as much for the benefit and interest of the unchurched or non-religious as for the benefit of more than one evolving religious tradition. As the Anderson Court observed, "[t]he history of man is inseparable from the history of religion." Anderson, at 33-34 (citing Engel v. Vitale, 370 U.S. 421, 434 (1962)); see also State v. Freedom From Religion Foundation, Inc., 898 P.2d 1013 (Colo. 1995).
No one and no religion has an exclusive claim to the icons of history.
History belongs to all.
The placement and display of the monolith at issue in this case is primarily secular in purpose, as an acknowledgment of one historic source of guidance and direction, one time-honored source of standards of human conduct.
Although the Court was looking forward to Plaintiffs' presentation of direct evidence as to their factual assertion that "[t]he Ten Commandments were personally and directly revealed by God to Moses," (Amended Complaint at ¶ 12), subject to the rules of evidence and the appropriate burden of proof to be satisfied through offering of exhibits and the testimony of witnesses, legal relief on Plaintiffs' claims has been foreclosed by existing precedent, and a statement from Moses and/or other contemporaneous witnesses to this event need not be discovered, produced or proffered, at least in the instant matter.
Therefore, based on the allegations in Plaintiffs' Amended Complaint considered in light of the governing law of the Tenth Circuit, the Court concludes that Plaintiffs are foreclosed from bringing their First Amendment claims against the Defendants.
Concerning Plaintiffs' state constitutional claim, counsel for the parties have neither briefed nor argued the question of the proper construction of Art. 1, § 4 of the Utah Constitution, which reads:
Article I, Section 4. [Religious liberty.]
The rights of conscience shall never be infringed. The State shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; no religious test shall be required as a qualification for any office of public trust or for any vote at any election; nor shall any person be incompetent as a witness or juror on account of religious belief or the absence thereof. There shall be no union of Church and State, nor shall any church dominate the State or interfere with its functions. No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment.
In the past, the Utah court has made reference to the Decalogue as a historical source of standards of human conduct. See Ralph A. Badger Co. v. Fidelity Building Loan Ass'n, 94 Utah 97, 75 P.2d 669, 682 (1938) ("A debtor so actively misleading the creditor to the benefit of the one and the detriment of the other would be violating a most fundamental legal concept and one which reaches back to the moral law crystallized in the Ten Commandments.") But neither the Utah Supreme Court nor the Utah Court of Appeals have yet addressed the issue raised by Plaintiffs' claim in terms of the language of this specific constitutional provision.
Under these circumstances, again following the guidance offered by the court of appeals, this court declines to exercise supplemental jurisdiction over Plaintiffs' state constitutional claim.
We have held that when federal claims are resolved prior to trial, the district court should usually decline to exercise jurisdiction over pendent state law claims and allow the plaintiff to pursue them in state court. See Ball v. Renner, 54 F.3d 664, 669 (10th Cir. 1995). We believe this general practice is particularly appropriate in this case.
The Supreme Court of Utah recently rejected a challenge to Salt Lake City's practice of opening its city council meetings with a prayer. Society of Separationists v. Whitehead, 870 P.2d 916 (Utah 1993). While that challenge was brought under the provision of Utah's Constitution which prohibited the expenditure of public monies for religious purposes and not under its Free Exercise or Establishment Clauses, the Supreme Court of Utah stated in Society of Separationists that it would not follow federal constitutional models in interpreting the Religion Clauses of the Utah Constitution. Id. at 930, 931 n. 36.Snyder v. Murray City, 124 F.3d 1249, 1354-55 (10th Cir. 1997), opinion vacated in part and reinstated in pertinent part on rehearing en banc, 159 F.3d 1227, 1236 (10th Cir. 199 8), cert. denied, 526 U.S. 1039 (1999). "Given that the interpretation of those Clauses appears to be undergoing an evolution, and given the complex issues of state law presented," the Snyder court continued, "we decline to exercise supplemental jurisdiction over Mr. Snyder's state-law claims."
Plaintiffs' pleaded claims question the continuing vitality of Anderson as Tenth Circuit authority on a matter of federal constitutional law, and at this point this court sees no compelling reason to second-guess the Utah courts on what plainly would be "a novel or complex issue of State law," 28 U.S.C. § 1367(c)(1), particularly where that issue was neither briefed nor argued prior to the dismissal of Plaintiffs' federal claim. Plaintiffs' state constitutional claim will thus be dismissed for jurisdictional reasons, and to that extent, Defendants' Rule 12(c) motion will be denied.
Anderson did not address the state constitutional question.
Plaintiffs' motion to dismiss Maddox as a plaintiff (dkt. no. 33) will be granted, as will the Defendants' motion to substitute successor parties (dkt, no. 25).
For the reasons set forth herein,
IT IS HEREBY ORDERED that Plaintiffs' Request for Preliminary Hearing pursuant to Fed.R.Civ.P. 12(d) is GRANTED nunc pro tunc to April 6, 2004;
Plaintiffs' Motion for Voluntary Dismissal of Plaintiff L. Maddox (dkt. no. 33) is GRANTED;
Defendants' Motion to Substitute Parties (dkt. no. 25) is GRANTED;
Plaintiffs' Motion for Judgment on the Pleadings (dkt. no. 3) is DENIED, and
Defendants' Motion for Judgment on the Pleadings (dkt. no. 16) is GRANTED IN PART as to Plaintiffs' federal constitutional claim; Plaintiffs' claim under Art. 1, § 4 of the Utah Constitution is DISMISSED without prejudice as the court declines to exercise supplemental jurisdiction over the claim pursuant to 28 U.S.C. § 1367(c).