Kimbley v. Lawrence County, Ind.

119 F.Supp.2d 856

Jennifer KIMBLEY, Plaintiff, v. LAWRENCE COUNTY, INDIANA, Defendant.

No. NA 00-207-C-B/S.

United States District Court, S.D. Indiana, New Albany Division.

November 14, 2000.

COPYRIGHT MATERIAL OMITTED

Kenneth J. Falk, Indiana Civil Liberties Union, Indianapolis, IN.

Francis J. Manion, American Center For Law & Justice, New Hope, KY.

ENTRY GRANTING INJUNCTIVE RELIEF

BARKER, Chief Judge.

Plaintiff, Jennifer Kimbley, filed a request for injunctive relief, pursuant to Federal Rule of Civil Procedure 65(a) (preliminary injunction) and 65(b) (temporary restraining order), seeking to prevent Defendant, Lawrence County, Indiana ("County"), from erecting and maintaining a monument containing the Ten Commandments on the Lawrence County Courthouse lawn. Before we had an opportunity to address Plaintiff's motions, and after certain officials of Lawrence County clearly had notice that this same monument had by order of this court been previously prohibited from display on the Indiana Statehouse grounds and further knew that this new litigation was pending before this court, the County hastily erected said monument on the county courthouse lawn. For the reasons discussed below, we GRANT Plaintiff's motion and grant a preliminary mandatory injunction ordering the County to remove the monument forthwith.

Facts

A. Background

Earlier this year, following enactment of a state statute authorizing displays of the Ten Commandments on state property (Ind.Code § 4-20.5-21-2), Indiana State Representative Brent Steele of Lawrence County ("Representative Steele") enlisted the Indiana Limestone Institute to create a limestone monument containing the Ten Commandments (which we will describe in detail below) and donate it to the State of Indiana to be placed on the Indiana Statehouse grounds. Indiana Civil Liberties Union v. O'Bannon, 110 F.Supp.2d 842, 845 (S.D.Ind.2000) ("O'Bannon"), appeal pending. The Indiana Civil Liberties Union ("ICLU") filed suit to prevent the positioning of this monument on the statehouse grounds and, after conducting an evidentiary hearing, we ruled that there was a substantial likelihood that the ICLU would prevail on the merits of its First Amendment challenge to the monument's placement and granted the requested preliminary injunction, enjoining the State from taking any steps to erect the proposed monument on the statehouse grounds. Id. at 858-59. That decision has been appealed to the Seventh Circuit Court of Appeals.

Sometime thereafter, approximately six to eight weeks ago, Representative Steele contacted Timothy P. Terry ("Terry"), President of the Lawrence County Commissioners (the "Commission"), informing him that the monument (the "Monument") could not be placed on the Statehouse lawn because an injunction had been granted by this court and asking Commissioner Terry if it could be temporarily placed on the grounds of the Lawrence County Courthouse (the "Courthouse") until a final decision was handed down by the Court of Appeals. See Deposition of Timothy P. Terry ("Terry Dep.") at 24.

Although Representative Steele requested only temporary placement of the Monument on the Courthouse grounds, Commissioner Terry has since come to believe that it may become a permanent fixture, as, according to his testimony at his deposition which was repeated at the November 13, 2000 hearing, "[t]here ha[ve] been some rumblings from the stone company that they may go ahead and build another one for the Statehouse" if the Governor prevails in appealing O'Bannon (the original monument apparently incorporates a spelling error as well). Terry Dep. at 7. Commissioner Terry further testified that he clearly understood that the Monument which Representative Steele was proposing for display by Lawrence County was the same one that was at issue in O'Bannon and was aware that an injunction had been entered in O'Bannon preventing its placement on the Statehouse grounds. Although he professed not to know the legal intricacies involved in an injunction, he evidenced an accurate understanding that, in essence, an injunction prevents a person from taking an act that he might otherwise have taken.

B. The County's Decision to Erect the Monument

When Representative Steele first approached Commissioner Terry, Terry indicated to Steele that he would need a description of the monument for the Commission to consider it. Terry Dep. at 46. Although Steele orally described the monument to Terry during this conversation, no other formal written description of the Monument was received by the Commission. Id. at 46-47. Nevertheless, on October 24, 2000, the Commission (composed of Commissioner Terry, Commissioner Robert H. Adamson ("Adamson"), and Commissioner Janie Chenault ("Chenault")) voted unanimously on an orally offered motion to accept the Monument and to place it on the Courthouse lawn as a temporary display. Terry Dep., Ex. 12 (minutes of the October 24, 2000, County Commission meeting). This resolution also directed that the County Engineer, Bob Burcham ("Burcham"),¹ determine what was needed to serve as a base for the Monument. Id. The Commissioners each testified at the evidentiary hearing that they intended their October 24th resolution to authorize County Engineer Burcham to proceed with the installation of the proposed Monument.

Based upon the deposition exhibits and evidence adduced at the hearing, we have been able to reconstruct the following time-line: Following the October 24th adoption of the resolution by the Commissioners, on Monday, October 30, 2000, Plaintiff Kimbley filed this litigation, and her attorney sent a copy, via facsimile, to the County Attorney, David Smith ("Smith"). Terry Dep., Ex. 13. Upon receiving notice of the suit, County Attorney Smith realized that he had a conflict of interest (having previously represented Kimbley in an unrelated matter). The next day, on Tuesday, October 31, 2000, Smith contacted the County's current counsel, Francis Manion, to request his assistance in representing the County in the matter. After confirming that Manion was available to represent the County, Smith contacted each of the Commissioners, notified them that a lawsuit had been filed seeking an injunction, informed them that he had a conflict of interest due to his preexisting relationship with Kimbley and obtained their approval to retain Manion as counsel in this matter. Although each of the Commissioners initially testified that he/she did not know about the litigation until after the Monument was actually placed on the lawn, both Commissioner Adamson and Commissioner Chenault recalled being in contact with County Attorney Smith the day before the Monument was erected and were informed of the lawsuit, its request for injunctive relief, and the need to retain Mr. Manion to handle it.

The day prior to the erection of the Monument (October 31st), plaintiff's counsel sent notice to both Smith and Manion informing them that he would be seeking a temporary restraining order at 10:00 a.m. on Wednesday, November 1, 2000. Terry Dep., Exs. 14, 15. The parties stipulated that both Smith and Manion received Plaintiff's counsel's letters and that receipt constituted notice by the County of the lawsuit and its request for injunctive relief.

During the time-frame of these communications between the Commissioners and counsel for both parties (on Tuesday, October 31, 2000), the cement base for the Monument was being laid on the Courthouse grounds, under the direction of County Engineer Burcham. At some point prior to the laying of the base, Burcham had approached Commissioner Chenault to request that she obtain a donation of cement for the base. Both she and Commissioner Terry testified that they were involved in the decision to obtain the donation of cement from a firm named "IMI." Commissioner Chenault testified that she thus knew that the process was in place to erect the Monument, although the laying the cement base was undertaken before she actually knew about the lawsuit. The Commissioners further testified that, although the cement base was set with assistance from members of the County Highway Department, these individuals volunteered their time and no County funds were to be spent in the laying of this base.

The next day, on Wednesday, November 1, 2000, beginning at approximately 7:00 a.m., the Monument was installed on the Courthouse lawn. Terry Dep. at 14-15, 19. All three Commissioners arrived at the scene at varying times during the process: Commissioner Adamson arrived prior to the Monument being in place, Commissioner Terry arrived just as it was being put in place, and Commissioner Chenault arrived after County Engineer Burcham called her to tell her it had been erected. Representative Steele was also present during the erection of the Monument, videotaping the process. None of the Commissioners was aware in advance that the Monument was to be erected at that early date; Commissioner Terry testified that he was surprised when he arrived at the Courthouse to see that it was going up that day. Although Commissioner Adamson testified that he was aware of the pending lawsuit as early as the day before and that he arrived prior to when the placement of the Monument was finished, he did nothing to prevent County Engineer Burcham from continuing the construction and did not inform him of the lawsuit's status.

The labor to erect the Monument was also provided by volunteers. None of the Commissioners could inform the court about where the Monument was stored prior to its arrival at the Courthouse lawn, nor could any of them definitively state who physically brought it to the location (although they speculated that it had been stored and conveyed to the scene by Evans Stone, the company which originally donated the limestone). It is clear, in any event, that the actual setting of the Monument occurred under the direction of County Engineer Burcham and the bulk of the labor was provided by...