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The Eleventh Commandment: “Thou Shalt Not Violate the Establishment Clause”

August 19, 2009
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Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

So sayeth the Tenth Circuit in Green v. Haskell County Board of Commissioners on June 8, 2009, followed on July 30th by the court en banc voting 6 to 6 to deny a rehearing.  Close only counts in horseshoes and hand grenades. 

In reading the dissent to the en banc decision, you will see the frustration and angst among both local officials and the jurists as to where to draw the line.

The board of commissioners of Haskell County, Oklahoma, authorized a Ten Commandments monument, eight feet tall, in front of the county’s courthouse in Stigler.  Here it is up close:

And here it is in context:

Here is the layout of the front lawn (Appendix C, page 51 of the decision):


As you may recall, the U.S. Supreme Court decided two Decalogue cases in 2005, allowing the monument in one, Van Orden v. Perry, and finding an Establishment Clause violation in the other, McCreary County v. ACLU of Kentucky. The difference appears to be that the former had been up for many years and did not have any apparent history of being placed in support of religion.

The Haskell County monument, emplaced on November 5, 2004, was up just a year before it was challenged and the there was ample evidence that many supporters wanted it there for religious purposes.  It was sponsored by Michael Bush, a construction worker and part-time minister who helped raise the money for it from local churches. Two of the three county commissioners, and several ministers, attended the unveiling of the monument (along with 200 people and representatives of 17 churches) and participated in a rally afterwards. 

In speaking of the monument sometime in November 2004, one county commissioner reportedly said:

“That’s what we’re trying to live by, that right there…The good Lord died for me. I can stand for him, and I’m going to…I’m a Christian and believe in this.  I think it’s a benefit to the community.”

 Another county commissioner said:

  “God died for me and you, and I’m going to stand up for him.”

At a rally two weeks later attended by 300-400 people, one commissioner said:

“I’ll stand up in front of that monument and if you bring a bulldozer up here you’ll have to push me down with it.”

At least one photograph in the press showed all three commissioners standing next to the monument.

The commissioners failed to distinguish their personal religious beliefs from that of the Board and consequently “left the impression that a principal or primary reason for the erection and maintenance of the display was religious.”

The Alliance Defense Fund plans to petition for certiorari in the U.S. Supreme Court.

“Americans shouldn’t be forced to abandon their religious heritage simply to appease someone’s political agenda,” said ADF Senior Counsel Kevin Theriot.  “As some of the dissenting judges pointed out, the three-judge panel’s decision is in conflict with both the U.S. Supreme Court and other federal appellate courts.  There is no difference between this Ten Commandments display and the one at the Texas state capitol that was upheld by the U.S. Supreme Court nearly five years ago.”

Here is a checklist I have prepared, based on my review of the several cases, for local government lawyers to use in managing the placement of religious monuments on public property:

1. Put up several monuments at once, including totally secular ones, like the Star Wars Pledge of Allegiance:


Star Wars Pledge of Allegiance

By Miba Reywes

I pledge allegiance to George Lucas,
the master of all that is Star Wars,
and to the movies he has created,
one galaxy, in war,
OT and PT, with Jedi
and blasters for all.

In Haskell County, the minister who sponsored the display added the Mayflower Compact on the back apparently to somehow neutralize the religious content of the display.  Really, he did that.  The Board didn’t know about it.

2. Have the commissioners who vote to approve the monument say things like:  “So what are the Ten Commandments – I never heard of ‘em.”  And “Ten?  I thought there were two – drink beer and party.”

3.  After the vote to authorize the monument, have a couple of commissioners say something showing that they didn’t really know what they were voting on, like:  “Decalogue?  I thought we were building a ‘deck of logs’ in the park.”  In that way you totally insulate the commissioners from any religious intent.

4.  Have Larry Flynt sponsor the monument.  He’s got a kind of religion, yes, but not usually associated with this type of display.

5.  Have all the ministers and other religious types stay away from the unveiling.

6.  On further thought, don’t have an unveiling – have it erected on some moonless night behind the densest bush you have and a few weeks later approve a new landscape plan that eliminates the bush.

7.  Glue moss to the side in the shadows and prominently engrave on the bottom of any display: “Erected anonymously and without public support on November 14, 1957”.

Removal of Appointed Members of Planning and Zoning Boards

August 12, 2009
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Posted By: Professor Patricia E. Salkin

I often field phone calls asking whether planning and zoning members can be removed from office by the local legislative body.  Usually, the context involves board members who are allegedly “out of touch” with community desires and goals, or who “blatantly ignore” the urging of the appointing official or board.  Most of the time, however, state statutes and local laws provide that board members can only be removed “for cause,” yet the laws rarely define this phrase.  I typically try to engage in a conversation over what might be examples of “for cause.”  For instance, whether the board member missed a lot of meetings; whether the board member attended a number of meeting visibly (and perhaps verbally) unprepared; whether the board member failed to follow the by-laws or rules of procedure; and whether the board member consistently demonstrates a refusal to follow the applicable law.  Oftentimes, the answer to these questions is no, but the desire for removal seems more closely aligned with political motivations.  In these cases, I typically advise that the public relations nightmare and accompanying lawsuit that will follow, may not be worth the removal action. 

A recent federal district court case from Connecticut is instructive as to the legal analysis regarding the question of whether a federally protected property interest attaches to the position of planning and zoning board member.

Closson was appointed to the planning and zoning commission in 1997 and in 2005 he was elected by members of the commission to serve as chairman.  He was reelected as chairman in 2006 and 2007, and in 2007 he was reappointed by the Board of Selectmen to the commission. In 2008, the Board sent Closson a letter informing him that the Board intended to remove Closson for cause citing various alleged failures to amend the plan of conservation and development. About 10 days later, the Board held a hearing on the removal, and Closson presented evidence in his defense and argued that his performance was satisfactory. Two weeks later, the Board voted to remove Closson, and a week later Closson filed a lawsuit in state court alleging a violation of his due process.  The suit was removed to federal court.

On a motion to dismiss, the Town argued that Closson has no property interest in an voluntary, unpaid position as a commission member, and that he did receive due process regarding his removal. The District Court concluded that Closson did have a property interest in the appointed position, citing Connecticut state case law holding that an appointed fire marshall who received $70 per month and could only be removed for cause, had a continuing property interest in the appointment, the Court noted that under the Town Charter, Closson could only be removed for cause. The Court said, “it seems unlikely that Closson’s position as an unpaid, rather than minimally paid, appointee would change the Connecticut Supreme Court’s determination that such positions are property under Connecticut law.”  The Court then considered whether Closson’s property interest rises to the level of a federally protected interest.  While the Second Circuit has held that municipal board members do not enjoy federal constitutional protections of their positions, Closson argued that his position was appointed and not elected and therefore should be held to a different standard.  The District Court held, however, concluded that there is no federal due process protection for an unpaid, volunteer position on a municipal board, whether elected or appointed.

Closson v. Board of Selectmen, Town of Winchester, 2009 WL 1538138 (D. Conn. 6/1/2009).

An Udder Failure…

August 11, 2009
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Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

A couple of weeks ago, the South Dakota Supreme Court in Anderson v. Town of Badger held that a town had the power to grant a waiver of a distance requirement set by Kingsbury County for a CAFO. Click here for the decision.

Wait a minute.  Why wouldn’t you want to live near a CAFO?  What’s a CAFO?  It’s not Community Association Facility Operations.  It’s not Centralized Area of Fun Outside …no, it’s Concentrated Animal Feeding Operations, something akin to dinner time at my fraternity house in the mid-1960s…

Click here to read about a dairy CAFO proposed with 10,000 cows.   Of course, there’s an anti-CAFO group out there – F.A.R.M. – “Families Against Rural Messes” –

In this case, it is a dairy operation on 320 acres, as I learned from the March 11-12, 2009 minutes of the Water Management Board where Richard Vendrig sought a permit for four wells 336 feet deep producing 200 gallons per minute for his proposed CAFO.  He testified that it would be a “zero contained facility, which means nothing wasted.”  Still, it has lagoons for the animal waste, although the manure will be treated and used in an organic farm operation.

Kingsbury County’s zoning ordinance allows local incorporated municipalities to waive the distance requirements. The county is rural – 5,815 people on 864 square miles.  Badger is one of thirteen townships.  It is tiny in area and population – 1.1 square miles and 144 people.

Here is downtown Badger, courtesy of Google Maps.


The county ordinance says that CAFOs can’t be closer than four miles from buildings in an incorporated area plus 440 feet for each additional 1,000 animal units over 1,000.

If the term “animal units” is a mystery to you, read this example of an ordinance.  Basically, it takes a bunch (flock, gaggle, covey, colony, troop, herd, swarm, drove, flange, shrewdness, kaleidoscope – I’m not making this up – click here) of small animals to be the equivalent of a big one, as in 50 chickens equals five pigs equals one cow.

Vendrig asked to build a CAFO two miles southwest of town, not in the town but in the county.  Can you say “new jobs”?  The Badger board of trustees granted the waiver and the neighbors sued.

I searched all over for information on Richard Vendrig and came up with nothing…except this:  he has a dairy farm already, in Canada, which is for sale.  Here’s a photograph of part of the 408-acre operation with a capacity for 300 cows courtesy of


The listing reports that the Vendrigs have bought a farm in South Dakota and have told Great West to sell their farm at auction.  Another site, however, says the auction has been withdrawn.

Here’s an interesting fact from the Canadian listing (you don’t find this in most real estate listings), relevant to the CAFO part of the case.

“Manure Storage:
1 1/2 million gallon storage under slatted floors in barns
1 1/2 million gallon storage on Parcel #2 (circular pit)
Total of 3 million gallon or 1 1/2 years”

That sounds like a lot, but I did the math and 1.5 million gallons is two and one-half Olympic swimming pools, so call it five big swimming pools of manure storage…

The South Dakota Supreme Court found all the authority it needed, to uphold the trial court’s decision to dismiss the challenge, in the municipality’s right to contract.  The county gave the town the option to waive the distance requirement and the town chose to exercise its right to do so.  Simple enough.

As I was completing my final research for this, I discovered that Dean Patricia Salkin beat me earlier with a case note on the same decision.  Geez, it pains me to have Dean Salkin beat me to the punch.

I can add a little to the story, however.

I talked with one of the lawyers for the town of Badger, Gary W.  Schumacher, a senior partner with Wilkensen & Wilkensen in DeSmet, South Dakota (population 1,200), where Laura Ingalls Wilder lived – you can visit her homestead.

I also talked with Timothy G. Bottum of Morgan Theeler LLP in Mitchell, South Dakota, who represents Richard Vendrig.  It turns out, like many of these stories, that what happened in the end is much different than you would have guessed.

The county denied the conditional use permit required for the over 999 cows proposed — the build out, or maybe it’s hoof out, could have been 2,000-4,000 cows (MOOO!!) — so Vendrig appealed and the trial court upheld the county’s decision, using a standard of review that greatly favored the government.  This was the same judge who held for Badger (and in Vendrig’s favor) in the separation waiver case.  Here is the trial court’s decision. The standard is that the government will be upheld unless it “acted fraudulently or in an arbitrary or willful disregard of undisputed or indisputable proof.”  This considerable deference in South Dakota is to be expected — the state motto is “Under God, the People Rule.”   I’m moving to the land of the ring-necked pheasant to do government defense work. Maybe I’ll take up residence in Clark, known worldwide as the Potato Capital of South Dakota.  It seems like my kind of town. Clark is home to the famous Mashed Potato Wrestling contest.  And here they are going at it on August 1st.


Attorney Bottum had researched the South Dakota Supreme Court decisions from such trial court judgments in favor of the government and couldn’t find a single reversal.  No appeal was taken, the time to appeal has run, and there is no permit for the CAFO.

So, for now there is no CAFO on the border of Badger.

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No More Naked Shakespeare in Portland, Maine

August 6, 2009
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Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

Got your attention with that title, right?  We’re in the dog days of August; we need to jazz it up a little.

“Dog days” comes from ancient times when Sirius, the Dog Star, rose around sunrise during mid-summer – it doesn’t anymore because the earth’s axis has shifted.  It is our brightest star, 26 times brighter than the sun and the fifth closest star, just 8.6 light years away. The name comes from the Greek word for searing or scorching. The Romans thought the star contributed to the summer heat. In my beloved Merriam-Webster I find the adjective “canicular” meaning “of or relating to the dog days.”  The word comes from the Latin canicularis, which is itself from Canicula (“Sirius), the diminutive of canis.  And, of course, where do we find Sirius in the heavens?  In the constellation Canis Major.  Then again, school children today might tell us it is satellite radio…

Anyway, enough astronomy.  Back to naked Shakespeare.

No one is actually playing Marcus Antonius in the buff bleating out:

Friends, Romans, countrymen, lend me your ears!
I come to bury Caesar, not to praise him.
The evil that men do lives after them,
The good is oft interred with their bones;
So let it be with Caesar.

Julius Caesar Act 3, scene 2, 74–77

It’s only called naked because they are not in costume.

The Portland zoning code prohibits entertainment in a bar if another one within 100 feet already has an entertainment license.  At the Wine Bar & Restaurant on Wharf Street, the Shakespeare Ensemble of Acorn Productions had been performing naked Shakespeare.  Here is their website.  Here is a review from January.

City officials said they didn’t know about it until March. I guess they don’t get out much. It seems that such reading of sonnets and plays is indeed entertainment in the view of the council, and without a license, the plain clothed thespians must be banished, like the good Duke Senior and his men in As You Like It.  Banished from the Wine Bar…



They are banished, but maybe not forever – on Monday the Council granted the renewal of the liquor license, but would not approve the entertainment license.  They voted unanimously to have the Public Safety Committee and the Planning Board take another look at the 100-foot separation requirement enacted just three years ago. 

So, there may be an Act II.

BTOP/NOFA- What Does it Say and What Does it Mean to You?

August 4, 2009
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Posted By: Joseph Van Eaton, Partner, Miller & Van Eaton, PLLC

Tucked into the Stimulus Bill, officially known as the American Recovery and Reinvestment Act of 2009,  there was nearly 8 billion dollars for expanding broadband availability in the nation.  According to Section 6001 of the statute, the broadband program was to provide service to unserved areas and enhanced services to underserved areas,  and also program dollars were to be made available on a competitive basis to link community anchor institutions and support public safety broadband services.  While there was not enough money to connect all anchor institutions or service all public safety needs, these funds would serve as an incentive to municipal leaders to create models that others could follow.

Almost six months after passage of the ARRA, on July 1, 2009 the Department of Commerce issued its Notice of Funding Availability (“NOFA”).  A NOFA establishes what funds are available for applicants, the timeframe for seeking these funds and the rules that govern applicant eligibility.  Miller & Van Eaton has created a web link to the governing documents and offers a PowerPoint to take the reader through the NOFA in a step-by-step process.

The bottom line is that there is wide spread disappointment in the NOFA.  This disappointment arises from two rules established by the Department of Commerce.  First, the NOFA mandates that no funds would be available for public safety or connecting anchor institutions unless the applicant can demonstrate that the project will reach unserved or underserved census blocks, as defined by the Department.   Second the NOFA allows all for-profit entities to compete for the funds so long as they agree to certain interconnection obligations. 

The net result is that urban America will likely be barred from competing for these broadband funds (except for more limited community computer center and broadband sustainability projects).  And incumbent telephone, cable and cellular providers which have failed to offer their communities broadband services in the past will now be the most likely recipients of the funds.

While advocates for local governments are right to be disappointed, there is no reason to give up.  The NOFA releases only about one-third of the available funds and the Department of Commerce has indicated it might be willing to refine the rules for further funding rounds of the program. 

You should make your voice heard at the Department of Commerce and with your congressional delegation.  The message is simple.  Don’t leave the urban underserved behind in the broadband age and tell Department of Commerce to give public safety a fair shot at demonstrating their broadband application could be a model for others.

Additional Online Resources

New Website

Notice of Funding Availability (NOFA) for the first round of broadband stimulus grants

Workshop materials  Tracks federal agency expenditures of American Recovery and Reinvestment Act monies:

Office of Management and Budget implementation guidance on stimulus spending:

National Telecommunications and Information Administration programs:

Rural Utilities Service programs:

Federal Communications Commission on rural broadband:

Full text of American Recovery and Reinvestment Act of 2009:

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This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.