Baxter County's response in nativity scene case

IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF ARKANSAS

HARRISON DIVISION

AMERICAN HUMANIST

ASSOCIATION and

DESSA BLACKTHORN, PLAINTIFFS

v. No. 14-CV-3126-TLB

BAXTER COUNTY, ARKANSAS, and

MICKEY PENDERGRASS, BAXTER COUNTY

JUDGE, IN HIS OFFICIAL AND INDIVIDUAL

CAPACITIES DEFENDANTS

PLAINTIFFS MEMORANDUM OF LAW IN SUPPORT OF RESPONSE TO

DEFENDANTS MOTION FOR SUMMARY JUDGMENT

Case 3:14-cv-03126-TLB Document 22 Filed 07/21/15 Page 1 of 16 PageID #: 638

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I. PLAINTIFFS HAVE STANDING TO BRING THIS ACTION. 1

The Supreme Court and Eighth Circuit have made clear that to establish standing for an

Establishment Clause violation, a plaintiff need only demonstrate direct and unwelcome personal

contact with the alleged establishment of religion. Red River Freethinkers v. City of Fargo, 679

F.3d 1015, 1022 (8th Cir. 2012) (quoting ACLU Neb. Found. v. City of Plattsmouth, Neb., 358

F.3d 1020 (8th Cir. 2004), rev'd en banc on other grounds, 419 F.3d 772 (8th Cir. 2005)).

[U]nwelcome direct contact with state-sponsored religion is a legally cognizable injury [that]

suffices to confer Article III standing. Vasquez v. L.A. Cnty., 487 F.3d 1246, 1253 (9th Cir. 2007).

See ACLU v. Rabun Cnty. Chamber of Commerce, Inc., 698 F.2d 1098, 1107 (11th Cir. 1983);

Suhre v. Haywood Cnty., 131 F.3d 1083, 1086 (4th Cir. 1997) (The injury that gives standing to

plaintiffs in these cases is that caused by unwelcome direct contact with a religious display that

appears to be endorsed by the state.). [A] non-economic injury which results from a partys being

subjected to unwelcome religious statements can support a standing claim, so long as the parties

are directly affected by the laws and practices against whom their complaints are directed.

Saladin v. Milledgeville, 812 F.2d 687, 692 (11th Cir. 1987) (citing Sch. Dist. of Abington Twp. v.

Schempp, 374 U.S. 203, 224 (1963)).

In Allen v. Morton, 495 F.2d 65, 77-79 (D.C. Cir. 1973), the court concluded that the

plaintiffs, as residents of D.C., had Article III standing to challenge a Christmas pageant held

adjacent to the White House, based on the mere fact that the plaintiffs were residents of the D.C.

metropolitan area and nothing more. Allen v. Hickel, 424 F.2d 944 (D.C. Cir. 1970).

Plaintiff has sufficiently alleged standing here. She alleges she was injured because she

repeatedly came into unwelcome contact in her own community with the [crche], and she felt

excluded and offended by the practice. Doe v. Franklin County, 2013 U.S. Dist. LEXIS 80033,

*19 (E.D. Mo. June 7, 2013). That is more than sufficient for standing in this case.

1 Plaintiffs incorporate by reference their Summary Judgment Memorandum (P. Br.), along with the

corresponding exhibits (Ex.). Defendants Memorandum is cited as (D. Br.).


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Defendant even concedes that the requirements of standing are actually quite low in cases

of this sort. (D. Br. 2). Dessa Blackthorn and the American Humanist Association (AHA)

easily meet the requirements of standing. Defendant cherry-picks and quote mines Plaintiffs

deposition, but when taken as a whole, it is clear that the display, as currently constituted, is

unwelcome to Plaintiff. The display is overwhelmingly Christian and exclusive of other traditions

including Judaism, Humanism, atheism, and Paganism.

When asked how she was harmed by the display, Plaintiff Blackthorn testified, As

somebody who believes in equal rights, human rights, especially constitutional rights, I feel like,

as a citizen, that harms me in a certain way because I am a citizen of this country. (Blackthorn

Dep. p 70-71). Blackthorns objection is to a display that makes the Christian religion the main

focal point and that thereby Baxter County has, in essence, established Christianity as the preferred

religion of Baxter County. (Id. at 24-25). According to Blackthorn: Christianity is not the only

religion in this town. And December includes many celebrations from different types of religions

all over the world. A lot of people in this county celebrate something completely different other

than the birth of Christ. (Id. at 25). The display as placed in December of 2014 was

overwhelmingly Christian. (Id. at 39-40). It is also undisputed that she drives by the courthouse

frequently and has repeatedly had unwelcome contact with the display. (Id. at 22).

Defendants position that one who is a Christian sympathizer cannot be sufficiently

offended to challenge a violation of the Establishment Clause is without merit. In numerous cases,

plaintiffs have been granted standing to challenge unconstitutional attempts to establish their own

religion as a preferred faith. See, e.g., Buono v. Norton, 371 F.3d 543,546-47 (9th Cir.

2004)(holding that plaintiff, a practicing Roman Catholic who was ideologically offended by the

government's decision to maintain a cross on public land, but not offended by the cross itself, had

Article III standing); Adland v. Russ, 307 F.3d 471, 477-78 (6th Cir. 2002) (standing satisfied for

Rabbi and reverends, among others, to challenge Ten Commandment monument on state capitol

grounds); Smith v. Cnty. of Ablemarle, Va., 895 F.2d 953, 954-55 (4th Cir. 1990) (allowing

Christian ministers, among other religious officials, to challenge a county display of a nativity


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scene); Kaplan v. City of Burlington, 891 F.2d 1024 (2d Cir. 1989) (allowing the Rabbi, among

others, to bring an Establishment Clause claim for displaying a menorah on public property).

Hewett v. City of King, 29 F. Supp. 3d 584, 601-603 (M.D.N.C. 2014) (Plaintiff's personal display

of the Christian flag on his private property does not prevent a finding that Plaintiff has standing.)

But here, the Plaintiff is not even a Christian, but simply a sympathizer. In fact, she is a

member of the American Humanist Association and regularly attends a Unitarian Universalist

church. (Blackthorn Dep. p. 46-49). From her deposition taken as a whole, it is clear that

Defendants overwhelmingly sectarian display is unwelcome to Plaintiff. It is true that a more

inclusive display would not be unwelcome, and it is the very fact that the display is exclusively

Christian that makes it unwelcome. The requirements of standing are met here.

Because the individual Plaintiff has standing, supra, Plaintiff AHA has standing to assert

claims on behalf of its members. See Hunt v. Wash. State Apple Adver. Commn, 432 U.S. 333,

343 (1977); Moss v. Spartanburg Cnty. Sch. Dist. No. 7, 775 F. Supp. 2d 858, 870 n.7 (D.S.C.

2011) aff'd 683 F.3d 599, 606 (4th Cir. 2012) (Because the court concludes that the individual

named plaintiffs have standing . . . the court need not address whether the FFRF possesses

organizational standing.); Fitts v. Kolb, 779 F. Supp. 1502, 1510 (D. S.C. 1991).2

II. THERE IS STATE ACTION IN THIS CASE.

A. The fact that the crche may be owned by a private entity is irrelevant; a crche has prominently and exclusively been displayed on government

property for 40 years by and with the consent of the County.

There is clearly state action where Baxter County permits one citizen to erect a display that

expresses the religious sentiments of the elected officials but denies the same right to other citizens.

(P. Br. 18-24). In fact, in nearly all of the cases finding holiday displays unconstitutional, the

display was owned by a private entity. See, e.g., County of Allegheny v. ACLU, 492 U.S. 573, 610

(1989) (crche owned by private entity displayed in courthouse with a disclaimer violated the

2 Specifically, the AHA has standing to assert the claims of its members because: (1) its members have

standing to sue in their own right, including the individually named Plaintiffs; (2) the interests it seeks to

protect are germane to the organizations purpose, which is to defend the separation of church and state;

and (3) neither the claim asserted nor the relief requested requires the participation of individual members

in the lawsuit. Friends of the Earth, Inc. v. Laidlaw, 528 U.S. 167, 181 (2000).


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Establishment Clause); American Jewish Congress v. City of Beverly Hills, 90 F.3d 379 (9th Cir.

1996) (menorah owned by private entity displayed in a public park with a disclaimer

unconstitutional); Smith v. County of Albemarle, 895 F.2d 953 (4th Cir. 1990) (crche on the front

lawn of a county office building owned by private entity, with a disclaimer, violated Establishment

Clause); Kaplan v. City of Burlington, 891 F.2d 1024, 1030 (2d Cir. 1989) (unattended menorah

in public park owned by private entity violated Establishment Clause); American Jewish Congress

v. Chicago, 827 F.2d 120 (7th Cir. 1987) (placement of crche by private citizens in city hall

conveyed the impression that the municipality endorsed Christianity); Burelle v. Nashua, 599 F.

Supp. 792, 797 (D. N.H. 1984) (privately owned crche in front of city hall unconstitutional).

To reiterate, in Allegheny, the crche was donated by a Roman Catholic group, and bore a

sign to that effect placed on a wooden fence that bordered the crche on three sides. 492 U.S. at

579-80. Specifically, it bore a disclaimer prominently stating: This Display Donated by the Holy

Name Society. Id. Red and white poinsettia plants were displayed around the fence. Id. The

County also positioned small evergreen trees, decorated with red bows, behind the two endposts

of the enclosure. Id. The manger had at its crest an angel bearing a banner proclaiming "Gloria in

Excelsis Deo" ("Glory to God in the Highest"). Id. There, as here, the crche was displayed in a

courthouse a central seat of the government- and the crche was used as the setting for its annual

Christmas-carol program. Id. at 581. Nevertheless, despite the fact that the crche was privately

owned, and was even accompanied by a sign clearly disclaiming the countys ownership, the

Supreme Court concluded that the crche has the effect of endorsing a patently Christian

message. Id. at 601.

Similarly, in Smith, the Fourth Circuit held that a crche was unconstitutional, even though

it was owned by the Charlottesville Jaycees and was accompanied by a large and specific

disclaimer sign. 895 F.2d at 955. The court explained as is relevant here: The later disclaimer

affixed near the figures is certainly more unequivocal than those in Allegheny County. . . . It

remains to be seen whether any disclaimer can eliminate the patent aura of government


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endorsement of religion. In effect, such an aura defeats Albemarle County's attempt to argue for a

remedial measure short of total removal of the creche. Id. at 958.

The County could constitutionally could ban all unattended private displays in its parks.

American Jewish Congress v. City of Beverly Hills, 90 F.3d 379, 384 (9th Cir. 1996) (citing Capitol

Square). In this case, however, the County has permitted the crche by only one citizen. If the

County wishes to permit some private unattended displays in its parks, it must do so pursuant to

valid time, place, and manner regulation. Id.3 Because it has given exclusive access to Rick

Spencer to display the crche, it has not created a public forum for private speech, and the crche

amounts to government speech. See Pleasant Grove City v. Summum, 555 U.S. 460, 464 (2009)

(holding that [p]ermanent monuments displayed on public property typically represent

government speech).

Moreover, in this case, the County has been actively involved in permitting the display of

the crche and crche alone. For at least the last 40 years, Baxter County has maintained an

overwhelmingly sectarian Christmas display on the lawn of the Baxter County Courthouse. (P.

Br. 1). The crche has also been the site for the Countys annual tree-lighting ceremony. (Id.).

It is undisputed that Judge Pendergrass oversees the Courthouse grounds and has final

decision-making authority over the display. (Id. at 2). Indeed, Judge Pendergrass has repeatedly

exercised this authority in refusing to allow other displays. (Ex. 5); (Ex. 1); (Pendergrass Dep. Ex.

8). With respect to the request by the citizens to display the Solstice Banner, Judge Pendergrass

told them, inter alia: If you put one, youve got to put them all. (Ex. 5, p. 6). Judge Pendergrass

stated in regards to the crche: the religious side means so much to people. (Ex. 5, Trans. p. 4).

3 Cf. Chabad-Lubavitch of Georgia v. Miller, 5 F.3d 1383, 1386-87 (11th Cir. 1993) (en banc) (Chabad's

proposal to erect a 15-foot menorah in Capitol's Rotunda did not violate the Establishment Clause where

City permitted displays pursuant to a "content-neutral, equal access policy . . . on a first-come, first-serve

basis to all interested parties" and various other private groups had erected unattended displays, such as an

eighteen-foot tall Indian Wattle and Daub Hut and a thirty-five flag exhibit); Americans United for

Separation of Church and State v. City of Grand Rapids, 980 F.2d 1538, 1541, 1546 (6th Cir. 1992) (en

banc) (Chabad's proposal to display a 20-foot menorah in Calder Plaza did not violate the Establishment

Clause where City allowed "all parties to have equal access to Calder Plaza" and "no group has ever been

denied permission to use the plaza").


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To the media, Pendergrass declared: I'm just not allowing anything else, anywhere else on the

square, besides that (crche). (Comp. Ex. 7).

In his deposition, Spencer stated: Obviously the purpose of it was to celebrate Christmas.

I mean, if I put up something that was not in celebration of Christmas, I'm sure whoever the county

judge was would have some problems with that. (Spencer Dep. p. 16-17) (emphasis added). In

view of the above, the fact that Rick Spencer claims to own the crche is irrelevant to the

Establishment Clause analysis.

B. The Courthouse lawn is not private property and the 2014 seasonal lease to the Chamber of Commerce does nothing to change state action.

There is no question that the Baxter County Courthouse lawn is government property and

that for at least 40 years, a Christian nativity display has been displayed on government property

each holiday season. After the Plaintiffs in this case threatened to sue the County for the display,

the County purported to execute a short-term lease to the Chamber of Commerce for the sole

purpose of maintaining the Christian display on the Courthouse grounds. This 2014 lease (which

by its terms, only applied during the months of November and December of 2014) is a sham,

reflects an unconstitutional religious purpose (and therefore represents and independent

Establishment Clause violation), and also does nothing to eliminate state action in this case.

First, the lease is a sham and reflects an unconstitutional religious purpose. It is the duty

of the courts to distinguis[h] a sham secular purpose from a sincere one. Santa Fe Indep. Sch.

Dist. v. Doe, 530 U.S. 290, 308 (2000) (citation omitted). There is overwhelming evidence that the

lease was an afterthought, designed to create an illusion of separation between the County and the

display on its Courthouse lawn. The lease is the County simply reaching for any way to keep a

religious [practice]. McCreary, 545 U.S. at 873. It was executed only as a litigating position[.]

Id. at 871. Defendant apparently reads the cases as if the purpose enquiry were so naive that any

transparent claim to secularity would satisfy it, and [it] would cut context out of the enquiry, to the

point of ignoring history[.] Id. at 863-64. But purpose needs to be taken seriously and needs


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to be understood in light of context; an implausible claim that governmental purpose has changed

should not carry the day[.] Id. at 874.

The lease was first entered into in 2014, at the instance of the County Judge, not the lessee

the Chamber of Commerce, after Plaintiff AHA and others had complained about the Christian

display on the courthouse lawn. The lease was clearly not commercially reasonable, being for the

nominal sum of $1.00. Judge Pendergrass made not the slightest effort to follow state law in

granting the lease. Arkansas law is very specific on what a County Judge must do to lease property

to a nonprofit organization. Ark. Code Ann 14-16-110. Under that statute, a nonprofit may

petition a County Court to lease property, a public hearing must be held, notice must be given, and

everyone having an interest in the subject matter is entitled to be heard. None of this happened.

(Pendergrass Dep. p. 47-48). Rick Spencer learned of the lease in the paper, and of course never

requested nor received permission to place his display on the premises of the purported lessee, and

he didnt even know who Eddie Majeste was. (Spencer Dep. p. 21, 27-29). The lease was approved

by the Quorum Court on November 21, 2014, and apparently signed the same day. (Compl. Ex.

8). After that, on December 2, 2014, the Quorum Court directed that signs be placed on the

purportedly leased premises, thereby exercising dominion over land it had supposedly leased a few

days earlier. (Compl. Ex. 9).

The alleged lease was a transparent sham, and the Court has no obligation to take it

seriously. Both Judge Pendergrass and the Quorum Court were state actors. Judge Pendergrass

clearly performed a public function in permitting Rick Spencer to put up his display but denying

the same right to other citizens. The Quorum Court specified that the purported lease of the

northwest corner of the Baxter County Courthouse property was for the stated purpose of erecting

a nativity scene display. (Compl. Ex. 8). A nativity scene is a Christian symbol and acts of the

County Judge and the Quorum Court are clearly state action.

As noted in Plaintiffs Motion in support of Summary Judgment, because the lease reflects

an exclusively religious purpose, it constitutes an independent violation of the Establishment

Clause. (P. Br. 19-21).


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Furthermore, as explained in Plaintiffs Motion for Summary Judgment, under the

circumstances of this case, the Chamber of Commerce itself is a state actor (P. Br. 20-21). See

ACLU v. Rabun Cnty. Chamber of Commerce, Inc., 698 F.2d 1098, 1110 (11th Cir. 1983). The

argument that the placement of a sectarian display on the Courthouse lawn was really nothing more

than the private actions of a lessee and a citizen is wholly without merit.

And the new signs placed on the premises do nothing to overcome Countys endorsement

of the Christian display; especially in light of the fact that the sole purpose of leasing the land to

the Chamber of Commerce is to retain a 40-year practice of displaying a Christian crche on the

governments property. A disclaimer to ignore the obvious is ineffective. See Allegheny, 492 U.S.

at 601. Any reasonable person looking at the display on the courthouse lawn would perceive a

message of the County, notwithstanding the disclaimer which by its very terms both claims to be

the message of Baxter County (the County of Baxter salutes liberty) and to state that This

display is owned and erected by private citizens of Baxter County. (CITE). The disclaimer, of

course, does not distance Baxter County from the message.

III. PLAINTIFFS CLAIMS FOR PROSPECTIVE RELIEF ARE NOT MOOT.

Defendant goes on to claim that Plaintiffs lack standing to pursue injunctive relief; in

essence it claims that such relief has been rendered moot by the fact that the annual nativity scene

is not currently on the Courthouse lawn (because it is July) (D.Br. 6-7). This position is untenable.

As noted, the County has a longstanding practice indeed, a 40-year practice of displaying the

same crche on the Courthouse lawn in November and December.

Virtually every holiday display case would lose on mootness grounds if the Court accepted

Defendants argument. Not surprisingly, the courts have not found holiday display challenges

moot, even when the challenge is brought after the holiday season. Some courts have explicitly

rejected this very argument. See Chabad-Lubavitch of Vermont v. Burlington, 936 F.2d 109, 111

(2d Cir. 1991) (even though Chanukah 1990 has come and gone, the case was not moot.).The

Court may properly exercise jurisdiction because it is capable of repetition, yet evading

review. Id. (citing Southern Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498,


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515 (1911)). This is especially so given the short length of Christmas and the relatively slow

pace of litigation. Id. See also Fox v. Los Angeles, 139 Cal. Rptr. 180, 186 (Cal. App. 2d Dist.

1977) (Kaus, dissenting on other grounds) (Although the 1975 Christmas season is past, it would

not be realistic to find that the issue has become moot.).

The United States Court of Appeals for the District of Columbia took a similar position in

Allen v. Hickel, 424 F.2d 944, 950 (1970) in respect of a long-continued practice of displaying a

creche on the Elipse adjacent to the White House. Id. (The problem which we consider here is a

recurrent one. The program has been in effect for many years, and there is every indication that it

will continue unless court action forbids. The case is thus not moot.).

The implicit suggestion is that the County will not erect a sectarian display in the future.

There is no evidence to support that implicit suggestion, or to think that 40 years of history will

suddenly change in 2015. Again, Defendant offers no evidence that the crche will not be on the

Courthouse lawn next year. The only evidence they offer Rick Spencers statement that he intends

on adding a Frosty the Snowman figure and perhaps increasing the size of the Christmas tree

and/or reindeer & sleigh figure. (D. Br. 6) (emphasis added). Even accepting this evidence as

true, such minor gestures will not sanitize the clearly sectarian display or mask its fundamental

historical religious purpose.

Assuming, with no evidence whatsoever, that the County intends to attempt to cure its

constitutional violation, the case is still not moot. It is well settled that the voluntary cessation of

an unconstitutional practice does not moot injunctive relief particularly where, as here, the

government can simply revert back to its old ways. U.S. v. W.T. Grant Co., 345 U.S. 629, 632-33

(1953). See Jager v. Douglas County Sch. Dist., 862 F.2d 824, 833-34 (11th Cir. 1989) (Under

the imminent threat of the Jagers lawsuit, the School District voluntarily ceased the practice of

having pregame religious invocations . . . [T]he controversy concerning the prior invocation

practices is not moot.).4 When a defendant retains the authority and capacity to repeat an alleged

4 See also Hall v. Board of School Commrs, 656 F.2d 999, 1000 (5th Cir. 1981) (schools voluntary

cessation of morning devotionals upon learning that a lawsuit was going to be filed did not moot plaintiff's


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harm, a plaintiff's claims should not be dismissed as moot. Wall v. Wade, 741 F.3d 492, 497 (4th

Cir. 2014).

In fact, it is exceedingly rare for a defendants voluntary termination of allegedly

wrongful activity to render a[] [case] moot. LGS Architects, Inc. v. Concordia Homes, 434 F.3d

1150, 1153 (9th Cir. 2006). The standard for determining whether a case has been mooted by the

defendants voluntary conduct is stringent. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167, 189 (2000). A case is only moot if subsequent events made it

absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.

Id. (citation omitted). The party asserting mootness bears the formidable, and heavy burden

of persua[ding] the court that the challenged conduct cannot reasonably be expected to start up

again[.] Id. at 189-90, 189 (citation omitted). See FTC v. Affordable Media, LLC, 179 F.3d 1228,

1238 (9th Cir. 1999) (the assertion that plaintiff did not offer any admissible evidence that the

[defendants] were likely to repeat any wrongful conduct . . . is not sufficient to satisfy the

[defendants'] burden). Thus, Defendant must demonstrate why repetition of the wrongful

conduct is highly unlikely. Rosemere Neighborhood Ass'n v. U.S. Envtl. Prot. Agency, 581 F.3d

1169, 1173-75 (9th Cir. 2009) (nonprofits suit under APA for injunctive and declaratory relief

was not moot on grounds that voluntary cessation exception applied even though organization did

not have any complaints pending with EPA).

Defendant has failed to demonstrate why repetition of the unconstitutional conduct is

highly unlikely. Indeed, it is not at all clear that Defendant will change its behavior at all if this

case is dismissed. The voluntary cessation exception traces to the principle that a party should

not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable

behavior. City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 284 n.1 (2001). As the

Supreme Court stated, such maneuvers designed to insulate a decision from review must be

viewed with a critical eye and, as a result, [t]he voluntary cessation of challenged conduct does

challenge to the practice).


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not ordinarily render a case moot. Knox v. Serv. Emps. Int'l Union, Local 1000, 132 S. Ct. 2277,

2287 (2012)(citation omitted). See also Armster v. U.S. Dist. Court, 806 F.2d 1347, 1359 (9th

Cir.1986). Even the formal repeal of a challenged statute has been deemed insufficient to moot a

challenge to that statute.5 See People Against Police Violence v. City of Pittsburgh, 520 F.3d 226,

231 n.2 (3d Cir. 2008) ([N]either the City's initial representation that it would no longer enforce

Chapter 603 nor its formal repeal of that ordinance a few months later deprived the District Court

of jurisdiction, particularly given that plaintiffs complaint alleged a long history of

unconstitutional conduct under the ordinance); Gluth v. Kangas, 951 F.2d 1504, 1507-08 (9th Cir.

1991) (refusing to hold voluntary cessation of prison library restrictions moot in light of long

history of policy).

IV. PLAINTIFFS CLAIMS FOR NOMINAL DAMAGES ARE NOT MOOT.

Even if a plaintiff's injunctive relief claim has been mooted, the action is not moot if the

plaintiff may be entitled to at least nominal damages. Rendelman v. Rouse, 569 F.3d 182, 187

(4th Cir. 2009) (citation omitted). Moreover, once it is shown that a constitutional violation

occurred, a court has no discretion to deny nominal damages. Farrar v. Hobby, 506 U.S. 103, 112

(1992); Covenant Media of S.C., LLC v. City of N. Charleston, 493 F.3d 421, 429 n.4 (4th Cir.

2007); Pelphrey v. Cobb Cnty., 495 F. Supp. 2d 1311, 1319 (N.D. Ga. 2007) (a court is obligated

to award nominal damages). Therefore, at a minimum, Plaintiffs are entitled to nominal damages.

V. THE CRCHE VIOLATES THE ESTABLISHMENT CLAUSE.

That the Countys crche violates the Establishment Clause is beyond refute, as set forth

in detail in Plaintiffs brief, as incorporated herein. The display is overwhelmingly Christian. It

is on the Courthouse lawn. And the primary focus is the Christian crche. E.g., Amancio v. Town

of Somerset, 28 F. Supp. 2d 677 (D. Mass. 1998) (holiday display consisting of a Nativity creche,

5 See City of Mesquite v. Aladdins Castle, Inc., 455 U.S. 283, 289 (1982); Jacobus v. Alaska, 338 F.3d

1095, 1103 (9th Cir. 2003)(challenge to Alaska's campaign finance laws was not moot, even though the

statutes had been repealed); American Legion Post 7 v. City of Durham, 239 F.3d 601, 605 (4th Cir.

2001)(the mere amendment or repeal of a challenged ordinance does not automatically moot a challenge

to that ordinance).


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holiday lights, a wreath, a Christmas tree, and a plastic Santa Claus, erected by town on front

lawn of town hall unconstitutional).

Any attempt to compare this case to any case in which the display is predominantly secular

and the nativity scene is incidental to the display must fail. Defendant says this case is analytically

identical to Lynch v. Donnelly, 465 U.S. 668, 671 (1984). To the contrary, this case is the polar

opposite of Lynch. In Lynch, a crche was de minimis in a display including, among other things,

a Santa Claus house, reindeer pulling Santa's sleigh, candy-striped poles, a Christmas tree, carolers,

cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of

colored lights, a large banner that reads SEASONS GREETINGS, and the crche. Id. The

inclusion of a single religious symbol did not taint the entire display. Id. at 686.

In Florissant, 186 F.3d at 1098, the crche was not the primary element of the display, but

rather only one element in the grander context of an overall display featuring multiple, large candy

canes, decorated trees, wrapped gifts, gift cutouts, lollipop cutouts, reindeer, a snowman, a large

Santa Claus with a sack of gifts, an eight-foot wreath and multiple large signs featuring secular

messages, all of which accompanied the venue for multiple secular community events, such as a

holiday craft show, a snack with Santa Claus, and a house decorating contest. Moreover, the

display in Florissant was upheld, in part because it was located at the civic center as opposed to

the seat of government, and as such was less likely to communicate a message of endorsement. Id.

The Baxter County display is overwhelmingly Christian in nature, bearing a much stronger

resemblance to the display in County of Allegheny than the displays in Lynch and ACLU v. City of

Florissant, 186 F.3d 1095 (8th Cir. 1999). This display consists of a life-size representation of the

birth of Jesus of Nazareth, with at least fifteen elements (Jesus, Mary, Joseph, an angel, three kings,

two camels, three sheep, a donkey, and at least two shepherds) dedicated to the depiction of the

birth of Jesus as set forth in the scriptures, plus one Santa Claus, one Christmas tree, and as of

2014, a single clear plastic reindeer and sleigh that do not match the rest of the display. The angel

bears a banner stating Gloria in Excelsis Deo, a paraphrase of Gospel of Luke 2:14 (Vulgate)

that forms the basis for the traditional Christian prayer, the Gloria. This praise to God in Christian


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terms is indisputably religiousindeed sectarianjust as it is when said in the Gospel or in a

church service. Allegheny, 492 U.S. at 598.

Unlike the display in Florissant, the secular items included in this displaythe Santa Claus

tucked behind one of the wise men, as seen in Exhibit 1, the Christmas tree, and the sleigh and

reindeer only added in 2014are incidental to the nativity scene at best and do little to nothing to

detract from the over all religious message of the display. 186 F.3d at 1098. As in Allegheny, this

display plainly violates the Establishment Clause.

VI. JUDGE PENDERGRASS IS NOT ENTITLED TO QUALIFIED IMMUNITY.

In no way is Judge Pendergrass is entitled to qualified immunity. A government official

is not entitled to qualified immunity when he violates clearly established constitutional rights of

which a reasonable person would have known. Gray v. City of Roswell, 486 Fed. Appx. 798,

801 (11th Cir. 2012). See Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2013). A court must not

define clearly established law at a high level of generality, since doing so avoids the crucial

question whether the official acted reasonably in the particular circumstances that he or she faced.

Id.; see also Blazek v. City of Iowa City, 761 F.3d 920, 922-23 (8th Cir. 2014). Officials can still

be on notice that their conduct violates established law even in novel factual circumstances. Hope

v. Pelzer, 536 U.S. 730, 741 (2002).

In this case, there is no question that the Countys 40-year practice of displaying a

prominent and almost exclusively Christian display on the Courthouse lawn violates the

Establishment Clause, supra. This case falls squarely within Allegheny.

Nor is there any doubt that Judge Pendergrass would have reason to know that his actions

were unconstitutional. He received several detailed letters from AHA and others placing him on

notice that the display violated the Establishment Clause. Pendergrass refused to reply to these

letters. Clearly established law is set forth in great detail in a letter Pendergrass received in January

of 2014 (Compl. Ex. 4), and of which he was reminded by an email of October 2014 (Compl. Ex.

5). He had access to the Countys counsel, Mike Rainwater, who presumably would have told him

what he told County administrators in a newsletter in the wake of this event. (Pendergrass Dep.


15

Ex 10).

Judge Pendergrass obviously appreciated that the display would not pass constitutional

muster. For that reason, he concocted the purported lease of the Courthouse grounds to the

Chamber of Commerce and cribbed a disclaimer from King v. Village of Waunakee, 185 Wis.2d

25, 517 N.S.2d 671 (Wis. 1993) under the impression that it was a United States Supreme Court

case. (Pendergrass Dep. p. 14-15).

Qualified immunity is often an effective defense where state officials legitimately could

not be expected to know that their actions violated the Constitution, but here, where Judge

Pendergrass was on detailed written notice of the unconstitutionality of his actions and proceeded

anyway to continue with those actions, using only the thin veil of a purported lease to solve his

constitutional problems, qualified immunity is inappropriate. Judge Pendergrass knew perfectly

well that he was violating the Establishment Clause, and did it anyway. If there was ever a case

in which a public official should not enjoy qualified immunity, it is one where the public official

has written notice of the unconstitutionality of his actions and attempts to evade his responsibility

under the Constitution.

CONCLUSION

For the foregoing reasons, Defendants Motion for Summary Judgment should be denied

and Plaintiffs Motion for Summary Judgment should be granted.

RESPECTFULLY SUBMITTED

___________________________

J.G. Gerry Schulze

Attorney for Plaintiffs

BAKER AND SCHULZE

Ark. Bar No. 83156

2311 Biscayne Drive

Suite 300

Little Rock, AR 72227

[email protected]:///h

Tel. (501) 537-1000

Fax. (501) 537-1001

http://hhttp://h

16

Monica L. Miller

American Humanist Association

1777 T Street N.W., Washington, D.C, 20009

[email protected]

Tel. (202) 238-9088

Fax. (202) 238-9003

CA Bar: 288343 / DC Bar: 101625

DAVID A. NIOSE

Law Offices of David Niose

348 Lunenburg Street, Suite 202

Fitchburg, MA 01420

[email protected]

Tel. 978-343-0800

MA Bar: 556484 / DC Bar: 1024530

ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

I hereby certify that on the _____ day of July, 2015, I served the following by electronic

mail upon:

Jason E. Owens

Attorney for Defendants

RAINWATER, HOLT & SEXTON, P.A.

P.O. Box 17250

801 Technology Drive

Little Rock, AR 72222-7250

Telephone (501) 868-2500

Telefax (501) 868-2505

___________________________

J.G. Gerry Schulze

Attorney for Plaintiffs

BAKER AND SCHULZE

Ark. Bar No. 83156

2311 Biscayne Drive

Suite 300

Little Rock, AR 72227

mailto:[email protected]:[email protected]@msn.comTypewritten text22nd

Documents

Baxter County's response in nativity scene case