American Civil Liberties Union of Ohio v. Ashbrook

211 F.Supp.2d 873

AMERICAN CIVIL LIBERTIES UNION OF OHIO FOUNDATION, INC., Plaintiff, v. Robert ASHBROOK, et al., Defendants.

No. 1:01CV0556.

United States District Court, N.D. Ohio, Eastern Division.

June 11, 2002.

COPYRIGHT MATERIAL OMITTED

Raymond V. Vasvari, Jr., American Civil Liberties Union of Ohio, Sara E. DeCaro, ACLU of Ohio Foundation, Cleveland, OH, for Plaintiff.

Daniel P. Whitehead, Mark D. Landes, Isaac, Brant, Ledman & Teetor, Columbus, OH, for Defendants.

MEMORANDUM & ORDER

O'MALLEY, District Judge.

A poster of the Ten Commandments hangs prominently in a gilded frame in a Court of Common Pleas in Richland County, Ohio. The issue before this Federal Court is whether this display violates the Establishment Clause of the First Amendment to the United States Constitution. The Court holds that it does.

Plaintiff, the American Civil Liberties Union of Ohio Foundation, Inc. ("ACLU"), brings this action on behalf of its members in Richland County, Ohio, against the Honorable James DeWeese ("Judge DeWeese" or "the Judge"), the judge who hung the Ten Commandments on the wall, as well as the Commissioners of Richland County, Ohio—Robert Ashbrook, David Swartz, and Daniel Hardwick ("Commissioners"). All of the Defendants are sued in their official capacities. The ACLU asserts two causes of action: the hanging and continued display of the Ten Commandments allegedly violates (1) the Establishment Clause of the First Amendment to the United States Constitution, as incorporated against the states by the Fourteenth Amendment, and (2) Article I, § 7 of the Ohio Constitution. The ACLU seeks essentially one remedy: an order directing removal of the poster.

Judge DeWeese and the Commissioners move for summary judgment, and the ACLU moves for partial summary judgment against the Judge. For the reasons stated below, the Court GRANTS Plaintiff's motion for partial summary judgment against Judge DeWeese and orders him immediately to remove the poster of the Ten Commandments. The Defendants' motions are DENIED.

I. Findings of Fact

The framed poster of the Ten Commandments at issue in this case hangs in Courtroom Number One in Richland County, Ohio—the courtroom of Judge DeWeese, an elected judge of the General Division of the Court of Common Pleas. DeWeese Deposition, pp. 6, 9-11. The poster is located on the side wall of the courtroom, near the front of the audience section. DeWeese's Motion for Summary Judgment (docket # 17), Exhibit C. Directly opposite and across the gallery from the poster of the Ten Commandments hangs a similarly styled and framed poster of the Bill of Rights. Id.

After the Judge created both of these posters on his computer and had them enlarged, he had them framed at a local framing store. DeWeese Depo., p. 11. All of this was done at his own, personal expense; no Richland County funds were used. Id. at 30; Affidavit of DeWeese, ¶ 6. While the Commissioners were neither consulted on nor involved in the hanging of these posters, they have not asked the Judge to remove either one of them.¹ DeWeese Depo., p. 30. The Judge hung both of these posters in the courtroom in July of 2000, without any public announcement. Id. at 12; DeWeese Aff., ¶ 8. Any costs the county bears in maintaining these posters is de minimis. DeWeese Depo., p. 30.

The style of both posters is identical; at the top, in the largest-sized, bold typeface, are the words "the rule of law." Docket # 17, Exhibits A & B. Below this heading, the two documents are identified in a smaller-sized, all-capital typeface—"THE TEN COMMANDMENTS" and "BILL OF RIGHTS." Id. Following this, in the smallest, though still prominent, typeface, are the actual texts of both documents. Id. Although the Judge is not sure, he believes that he used an encyclopedia as the source for both documents. DeWeese Depo., p. 12. The version of the Ten Commandments hanging in his courtroom reads as follows:

the rule of law

THE TEN COMMANDMENTS

I.

Thou shalt have no other gods before me.

II.

Thou shalt not make unto thee any graven image. Thou shalt not bow down thyself to them, nor serve them for I the LORD thy God am a jealous God.

III.

Thou shalt not take the name of the LORD thy God in vain; for the LORD will not hold him guiltless that taketh his name in vain.

IV.

Remember the sabbath day, to keep it holy. Six days thou shalt labor, and do all thy work. But the seventh day is the sabbath of the LORD thy God: in it thou shalt not do any work.

V.

Honor thy father and thy mother: that thy days may be long upon the land which the LORD thy God giveth thee.

VI.

Thou shalt not kill.

VII.

Thou shalt not commit adultery.

VIII.

Thou shalt not steal.

IX.

Thou shalt not bear false witness against thy neighbor.

X.

Thou shalt not covet thy neighbor's house, thou shalt not covet thy neighbor's wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor anything that is thy neighbor's.

Plaintiff's Motion for Summary Judgment (docket # 24), Exhibit B.² The are no captions or plaques accompanying the posters that describe or explain their purpose or expressly tie the two posters together. Docket # 17, Exh. C.

Located on the back wall of the courtroom are three posters featuring portraits of and quotations by Thomas Jefferson, James Madison, and Alexander Hamilton extolling the virtues of the jury trial system. DeWeese Depo., p. 44. These posters were hung on the courtroom wall in 1993. Id. at 45. Above the jury box hangs a portrait of Abraham Lincoln that was already present in the courtroom when the Judge came onto the bench in 1991. Id. at 44. On the front wall of the courtroom hangs the seal and motto of the State of Ohio.³ Id. These were placed on the wall in 1991 or 1992. Id. at 44-45.

Courtroom Number One is located on the third floor of the Richland County Courthouse. In the center of this floor is a common area, or lobby, that leads to four courtrooms, as well as several elevators, stairwells, offices, and restrooms. Id. at 46-47. There are two other displays in this lobby area. Id. The first is a self-contained display of twenty-nine photographic reproductions of historical documents arranged by the National Exchange Club and collectively entitled the "Freedom Shrine." Id.; Plaintiff's Opposition Brief (docket # 29), Declaration Exhibit A. It contains historical documents, such as the Mayflower Compact, presidential inaugural speeches, and the text of the Star Spangled Banner. The twenty-nine documents were "chosen to exemplify the beginnings of our nation and those subsequent turning points of importance which shaped our national character and eminence."⁴ Docket # 29, Decl.Exh. A; Ashbrook Motion for Summary Judgment (docket # 26), Exhibit A. This display was donated by the Exchange Club of Mansfield, Ohio and was erected prior to the Judge coming onto the bench, sometime in the 1980s. DeWeese Depo., pp. 47-48; DeWeese Aff., ¶ 7. The second display consists of a poster containing the portraits of nine historical figures and quotations by them regarding the history of the jury system.⁵ Docket # 26, Exh. A.

II. Motion for Summary Judgment Standard

Federal Rule of Civil Procedure 56(c) governs summary judgment motions and provides:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law....

Rule 56(e) specifies the materials properly submitted in connection with a motion for summary judgment:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.... The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denial of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

However, the movant is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In reviewing summary judgment motions, this Court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); White v. Turfway Park Racing Ass'n, Inc., 909 F.2d 941, 943-44 (6th Cir.1990). A fact is "material" only if its resolution will affect the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Determination of whether a factual issue is "genuine" requires consideration of the applicable evidentiary standards. Thus, in most civil cases the Court must decide "whether reasonable jurors could find by a preponderance of the evidence that the [nonmoving party] is entitled to a verdict." Id. at 252, 106 S.Ct. 2505.

Summary judgment is appropriate whenever the non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. M...