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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”.

RLUIPA Ripeness Rule Reinforced

July 27, 2009
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The concept of ripeness in several realms is elusive.  I have never figured out how to properly thump a melon at a grocery store, although I have made a thorough study of it.  You might want to click here, or here, or here  for some guidance, none of which seems to work when it’s just me in a stare down with a cold, stone faced and silent honeydew.

Just yesterday one of my younger children from what we call the “second litter” asked me at dinner how I could tell if a coconut was ripe.  I paused, realized that I had no answer, and did what every good parent should do and asked instead why they weren’t eating their salad.  Yes, attack and divert.

You think melons and coconuts are tough — try ripeness in land use litigation.  It has been a battleground in regulatory takings.  No one seems to like the current rules.   Here’s an article which you might find useful for background.  Even Professor Daniel R. Mandelker of Washington University in St. Louis, who is a self-styled “police power hawk” (meaning he is almost always on the side of planning, regulation and government), doesn’t like the current ripeness rules and testified in the U. S. Congress about what it should do to fix the situation.  Professor Mandelker co-hosts IMLA’s teleconference series “Mondays with Mandelker and Merriam.”  Click here for information.

Ripeness is a good defense for government lawyers and ripeness rules do make sense where they prevent a case from being tried prematurely, because it is almost always better for all concerned if property owners and government have an opportunity to resolve their differences.  Ripeness, at least as it applies to inverse condemnation, has two prongs.  First, the government must reach a final position so that everyone knows what can be approved and what won’t be.  The second prong is that a property owner must seek compensation in the state courts before proceeding to the federal courts for relief.

That first finality prong of ripeness made its way into litigation under the Religious Land Use and Institutionalized Persons Act (RLUIPA) in the case of Murphy v. New Milford in the Second Circuit.

On Wednesday, the United States Court of Appeals for the Third Circuit handed down a decision in Congregation Anshei Roosevelt v. Planning and Zoning Board of the Borough of Roosevelt in which it adopted the ripeness rule applied in the Murphy case.   The lawyer for the Borough of Roosevelt was Professor Marci Hamilton, who will be the guest of Professor Mandelker and me on our IMLA teleconference next Monday, August 3rd.  She also represented New Milford in the Second Circuit in the Murphy case.

In Murphy, the complainants were conducting prayer meetings at their home.  Those meetings became more frequent and attracted larger numbers of people.  The zoning enforcement officer issued a cease and desist order on the ground that the use of the property for a religious institution was not permitted.  The Murphys went to federal court and won on their RLUIPA claim.  However, the Second Circuit said that the case was not ripe for adjudication because the Murphys had not appealed the cease and desist order or applied for any local zoning relief such as a variance.

In Roosevelt, the Congregation Anshei Roosevelt brought an action in federal district court in New Jersey against the Borough of Roosevelt, its mayor and council, and its planning and zoning board under RLUIPA and state law.  The defendants moved to dismiss claiming that the matter was not ripe for judicial review.  The federal district court granted the motion to dismiss and on appeal to the United States Court of Appeals for the Third Circuit, that court affirmed the district court’s dismissal. 

The Congregation established a small New Deal resettlement in the Borough long before zoning was enacted.  Under current zoning regulations, the pre-existing, non-conforming synagogue has been allowed to continue.

In 2005, the Congregation entered into an agreement with the Yeshiva under which the Yeshiva would provide the Congregation with rabbinical services and the Congregation in turn would allow the Yeshiva to conduct study and worship activities at the synagogue.  The Yeshiva began its operations, a neighbor complained, the zoning officer consulted with the Borough attorney, and it was ultimately decided that the activity could continue as part of the non-conforming use. 

Enter the concerned citizens group, the Roosevelt Preservation Association.  The Association appealed the zoning officer’s decision to the Planning and Zoning Board.  Hearings were held.  A rabbi testified as to why a Yeshiva is necessarily is part of a synagogue, the neighbors testified that there were 34 students enrolled and that those students congregated on the property and the street and that there many cars coming to and from the Yeshiva. 

The Board ultimately overturned the decision of the zoning officer and said that the Yeshiva would need a variance to operate there.  In the Board’s view requiring an application for a variance would not be a substantial burden on the congregation and the Yeshiva.

In the Court of Appeals, the Congregation and the Yeshiva argued that the case was ripe because the Board had reached a final determination on whether the Yeshiva was a house of worship use and therefore permitted as a pre-existing, non-conforming use and that the Board had also decided that the current zoning regulations were applicable to the property.

In handing down its decision, the Court of Appeals noted that ripeness is a jurisdictional inquiry under Article III of the U. S. Constitution.  The Court went on to cite the leading inverse condemnation case in this area, Williamson County Regional County Planning Commission v. Hamilton Bank of Johnson, U. S. Supreme Court (1985) and quoted from it noting that the takings claim as decided in that case was “not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.”

The Court of Appeals also cited Murphy and the four reasons for requiring ripeness:  it helps develop the full record, it provides the Court with knowledge as to how the regulation will be applied to a particular property, it may avoid litigation all together if the local government gives the relief sought, and it shows “the judiciary’s appreciation that land use disputes are uniquely matters of local concern more aptly suited for local resolution.”

The Court of Appeals said that the Board had not determined that the Yeshiva was not a permitted use, but had only found that there was a “significant increase in the intensity of that use” and that the variance was necessary to “consider the effect on the neighborhood.”

As so the claim that the Board had made a final determination with regard to the application of the zoning rules at this property, the Court discussed the land use aspects of RLUIPA and ultimately determined that “[t]he factual record is not sufficiently developed to decide fully the RLUIPA claim here, and the Board has not issued a definitive position as to the extent the Yeshiva can operate on the synagogue property.”

The pièce de résistance is what every local government lawyer and planner likes to hear from a federal court:  “Finally, we have stressed ‘the importance of the finality requirement and our reluctance to allow the courts to become super land-use boards of appeals.  Land-use decisions concern a variety of interests and persons, and local authorities are in a better position than the courts to assess the burdens and benefits of those varying interests.’”

Time and time again federal courts have stated emphatically that they do not want to be “super land-use boards of appeals,” and consequently they have, in most cases, supported ripeness rules that require finality in the decision making process at the local level.

The Third Circuit has marked the decision as “not precedential.”  However, the Federal Rules of Appellate Procedure were recently amended to allow the decision to be cited.

Rule 32.1 Citing Judicial Dispositions

(a)    Citation Permitted. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been: (i) designated as unpublished, not for publication, nonprecedential, not precedent, or the like; and (ii) issued on or after January 1, 2007. (b) Copies Required. If a party cites a federal judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible electronic database, the party must file and serve a copy of that opinion, order, judgment, or disposition with the brief or other paper in which it is cited.

The debate continues on how these nonprecedential decisions can be used.

Meanwhile, I will go on mindlessly thumping the honeydews…

What Happens When an Irresistible Force Meets an Immovable Object – A Moratorium to Promote Sustainable Development Runs into the Constitutional Right to the Exercise of Religion

July 21, 2009
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Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

The unstoppable force paradox is an exercise in logic that seems to come up in the law all too often. There is a Chinese variant. The Chinese word for “paradox” is literally translated as “spear-shield” coming from a story in a Third Century B.C. philosophy book, Han Fiez, about a man selling a sword he claimed could pierce any shield. He also was trying to sell a shield, which he said could resist any sword. He was asked the obvious question and could give no answer.

The Washington Supreme Court broke the paradox between a 12-month moratorium during which the City of Woodinville considered sustainable development regulations for its R-1 residential area, and the efforts by the Northshore United Church of Christ (Northshore Church) to host a movable encampment for homeless people on its R-1 property. City of Woodinville v. Northshore United Church of Christ (July 16, 2009).

Throw into the mix the Washington State Constitution and the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) and you have enough irresistible forces and immovable objects to fill any Chinese philosopher’s book.

The encampment of 60-100 people in the Puget Sound area moves from place to place every 90 days. When it came time for it to move, and Northshore Church applied for a temporary use permit, the city refused to act on it based on the moratorium put in place just a few months before.

Here is the encampment from the city’s website:


Here’s another photograph, courtesy of which also has a story on the case and a KIRO radio report.


Northshore Church sued. The city won at trial and got an injunction against the encampment. The trial court held that the city met its obligation to have a narrowly tailored moratorium that achieved a compelling governmental purpose – thus, there were no constitutional or RLUIPA violations. The appellate court upheld the trial court, even though it found that the trial court should not have applied strict scrutiny.

The Washington Supreme Court reversed, holding that the city could not refuse to process the application because the Washington Constitution guarantees “[a]bsolute freedom of conscience in all matters of religious sentiment, belief and worship…[and] shall not be so construed as to … justify practices inconsistent with the peace and safety of the state.” The refusal to process the application was a substantial burden, said the court, because “[i]t gave the Church no alternatives.”

The Court did not reach the RLUIPA claim as it held the constitutional violation was dispositive.

The city’s website describes the appellate court decision, but does not report the Supreme Court’s reversal. Northshore Church’s website, however, celebrates the decision.

The key point is the utter lack of any alternatives. The city simply refused to process the application. Northshore Church said at oral argument that it could have hosted the encampment inside the church (sounds like new evidence to me – surprising how often this kind of thing sneaks in during appellate argument) and the Washington Supreme Court noted this as illustrative of how refusing to process the application precludes considering any alternatives. Almost as important was the moratorium of 12 months and the Washington Supreme Court’s precedential decision that a 14-month delay created an unconstitutional burden. The city had not shown the moratorium to be a narrow means of achieving a compelling goal. “Planning pause” moratoria, as we call them, are hard to justify beyond six months and most moratoria should allow some administrative relief for exceptional cases. This is one of those exceptional cases, where the permit was for a temporary use, a use not likely to defeat the purpose of this moratorium to study how to have more sustainable development in a residential zone.

Development Opposition Results in Civil Stalking Protection Order

July 13, 2009
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 Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

I get back from a nice nine days cruising in my sailboat to face over 1,000 emails and there in the midst of them is a slip opinion in a land-use civil stalking complaint.  It kind of makes me want get back onboard with Captain Morgan and sail away…

Thanks (I guess) to my friend, Stuart Meck, FAICP/PP, Associate Research Professor and Director, Planning Practice Program at the Edward J. Bloustein School of Planning and Public Policy at Rutgers, The State University of New Jersey, for this little gem. (Stuart — your title is longer than my resume, for heaven’s sake).  Stuart was from Ohio in another life and with Kenneth J. Pearlman publishes the annual treatise, Ohio Planning and Zoning Law (Thomson West).  Stuart’s a planner, not a lawyer, but he knows land use law.

The back story is this.  Three 20-something idealists decide to do an ambitious mixed use project in Oberlin, Ohio.  It even gets the attention of The New York Times in 2006.   Here are the young entrepreneurs courtesy of The New York Times.


Ben Ezinga, left, Naomi Sabel and Joshua Rosen, collectively known in Oberlin, Ohio, as “the kids,” put together the financial backing and city support for a $15 million development on a site vacant for years. David Maxwell for The New York Times

Their project was budgeted at $15 but became $17 million and includes 28,000 square feet of retail space, 52,000 square feet of residential space and about 15,000 square feet of parking. They closed on the financing and have the project under construction.

The string of messages spanning almost three years on this blog is a good read.  The threesome calls themselves Sustainable Community Associates and their website has detailed information on the project. You can see the construction underway on videos they have posted at the website.  Many recent photographs (July 8, 2009) are available on flickr.

Nice story; happy ending forthcoming, I assume, if the rotten real estate economy doesn’t take them down.

However, early on, one Mark Chesler became a vitriolic opponent.  Click on this and read some of his testimony and think back to those hearings when you sat through similar diatribes.   And if you want more, click here.

It got so bad that Rosen sought and was granted a civil stalking protection order against Chesler, who allegedly yelled things at Rosen on the street 7-10 times in two months before the order was issued.  The court issuing the order (actually adopting a magistrate’s decision) and the court on appeal found a “pattern of conduct” which is two or more actions or incidents closely related in time. One of them was in a restaurant where Chesler yelled at Rosen: “I got you now.”

A few days later Chesler confronted Rosen downtown.  There were other encounters reported in the decision by the Court of Appeals Ninth Judicial District on June 30, 2009, upholding the order.  Rosen feared bodily harm.

This land-use business can be tough.

Sorting Out Sonia Sotomayor

June 29, 2009
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Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

According to the Washington Post this morning, 62% of Americans think Sonia Sotomayor should be confirmed for the U.S Supreme Court because she is “about right” ideologically. The question is, how good will she be for municipal attorneys?


Pablo Martinez Monsivais/Associated Press

Pablo Martinez Monsivais/Associated Press

I was privileged to attend Yale Law School when she did. I’m almost eight years older and she graduated a class behind me, but I had been off in Vietnam and elsewhere with the Navy for 7 years. Yale Law School is a small place with only 170 or so in class. Regrettably, however, I didn’t get to know her well. When she was nominated, I began to read everything I could about her and to consider the decisions she wrote or joined in to try to get a bead on her.
The short answer is that she can’t be pigeon-holed.
Judge Sotomayor has participated in 3,600 (not a typo) decisions, I assume most of which are routine motions and the like. In the 10 years on the Second Circuit, she has authored over 150 decisions.
The case most talked about among property rights and government types alike is Didden v. Port Chester in which she voted with the majority 5-4 in 2006, after Kelo, in a short unsigned opinion to uphold Port Chester, New York’s taking of private property to enable a 27-acre urban renewal project.
The pro-property rights advocates were quick to look for a wooden stake to drive through her heart because of this decision. “This is the worst federal court takings decision since Kelo,” said Ilya Somin, who teaches property law at George Mason University and was quoted in a New York Times article. “It’s very extreme, and it is significant as a window into Judge Sotomayor’s attitudes toward private property.”

On the other side of the ledger is Brody v. Village of Port Chester. There, she wrote an opinion a year earlier finding that publication in the newspaper of a proposed eminent domain taking failed to meet the requirements of due process.

In Riverkeeper Inc. v. USEPA, she authored an opinion in 2009 that held costs to industry need not be considered in determining how to protect fish from power plant discharges. The decision was described as “anti-business.”

The U.S. Supreme Court granted certiorari and reversed in April holding that cost-benefit analysis is not categorically forbidden by the Clean Water Act. Entergy Corp. v. Riverkeeper Inc.

On the other hand, or was that the same hand? – I’m running out of hands here – in Natural Resources Defense Council v. Abraham (2003), her panel ended up on the side of a coalition of states and environmental groups that had sued the federal government for weakening the energy conservation standards for appliances.

In New York v. National Service Industries (2006), Judge Sotomayor wrote a decision for the court in a Superfund case in which the State of New York sued a company to recover the state’s costs of cleaning up a hazardous waste site. The court held that the company was not liable for what a remotely-connected firm had done.

Not a property rights, environmental or land use case, but certainly one of municipal law that is getting much press is Ricci v. DeStefano. The case is about white firefighters in New Haven who were not promoted when no black firefighters qualified for advancement. Her three-judge panel of the Second Circuit in an unsigned opinion rejected the race discrimination claim of the white firefighters, including a Hispanic. The court in a per curium opinion declined to rehear the case. The Supreme Court took the case, arguments were held in April, and the decision is pending was released this morning. [UPDATE 06/29/2009: From the New York Times — Justices Rule for White Firefighters in Bias Case — The Supreme Court ruled on Monday that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that Sonia Sotomayor, a Supreme Court nominee, endorsed as an appeals court judge. Read More:]
Here are a couple [1 and 2] of gossipy personal items which might help you fill out your own picture of Judge Sotomayor. She has been married and divorced, never had any children, is generous to her clerks and staff, has little accumulated wealth, and won $8,283 at a casino last year while visiting a casino with her mother.

To sum up Sonia Sotomayor…

I believe it is fair to say, based on the totality of her record, that she is a liberal of the non-dogmatic variety, makes narrow decisions sharply focused on the cases before her, is not a judicial activist, will be an active questioner in oral arguments unlike Justice Thomas, respects private property rights, understands the needs of government especially to carry out the common good, and will prove to be more of a centrist.

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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.