Americans United for Separation of Church & State v. City of Grand Rapids

922 F.2d 303, 1990 WL 199834
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 13, 1990
DocketNo. 90-2337
StatusPublished
Cited by27 cases

This text of 922 F.2d 303 (Americans United for Separation of Church & State v. City of Grand Rapids) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Americans United for Separation of Church & State v. City of Grand Rapids, 922 F.2d 303, 1990 WL 199834 (6th Cir. 1990).

Opinion

[305]*305I

BOGGS, Circuit Judge.

For the past six years, the City of Grand Rapids has permitted the Chabad House, an arm of the Lubavitch movement of the Jewish faith, to erect a privately-owned menorah in Calder Plaza, a publicly-owned area near a number of buildings of the City of Grand Rapids and other governments. The menorah remains during the season of Chanukah, a Jewish religious holiday lasting eight days in December. See County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 109 S.Ct. 3086, 3095-97, 106 L.Ed.2d 472 (1989).

This year, on November 13, a suit was filed against the City, challenging this action as a violation of the Establishment Clause of the first amendment and seeking an injunction to prevent the granting of a permit, or the carrying out of any action under a permit, if it were granted. On December 5, six days before the holiday was to begin, Judge Enslen granted an injunction against the City. He ruled from the bench, and we have no transcript or written opinion before us.

When Chabad learned that Grand Rapids might not appeal this decision, it sought to intervene. On Friday, December 7, four days before the start of Chanukah, Judge Enslen scheduled a hearing on the motion to intervene on December 18, at the end of Chanukah. This action would obviously have the effect of denying Chabad judicial review at a time when such review could be meaningful.

On Monday, December 10, Chabad appealed what it called a denial of its right to intervene and, assuming that it could intervene, filed a notice of appeal from the decision granting an injunction, and sought a stay.

II

Turning first to procedural matters, we believe Chabad can intervene as of right. Rule 24(a) reads as follows:

Upon timely intervention anyone shall be permitted to intervene in an action ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

An applicant for intervention as of right under Rule 24(a) must therefore, upon timely application, show three things. He must show that “(1) he claims an interest relating to the property or transaction that is the subject of the action, and (2) he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless (3) his interest is adequately represented by existing parties.” 7C C. Wright and A. Miller, Federal Practice and Procedure, § 1908.

We believe that Chabad meets all necessary requirements to qualify for intervention as of right. First, Chabad’s application is clearly timely. Second, Chabad has an interest in the property that is the subject of the suit. Chabad owns the menorah, the disposition of which during Chanukah the plaintiffs are attempting to control. Any property owner has an interest in the disposition of his property during a particular span of time, and the fact that the property and the owner before us are inherently religious does not change that fact. See, e.g., Decker v. United States Department of Labor, 473 F.Supp. 770 (E.D.Wis.1979) (Archdiocese of Milwaukee held intervenors as of right in suit alleging that distribution of CETA funds to Archdiocese violates the Establishment Clause). Third, Chabad would be impaired or impeded in protecting its interest in the disposition of its menorah if it is not a party to this case. The court will decide whether it can place its menorah in Calder Plaza during the eight days of Chanukah, and Chabad would be prevented from so placing the menorah even if it were not a party. Fourth, Chabad’s interest is not being adequately protected by any current party. The plaintiffs are clearly adversaries to Chabad’s interest, and Chabad’s original [306]*306defender, the city of Grand Rapids, has abandoned that role by its failure to appeal. We agree with the District of Columbia Circuit that a decision not to appeal by an original party to the action can constitute inadequate representation of another party’s interest. Smuck v. Hobson, 408 F.2d 175 (D.C.Cir.1969). The City’s decision in this case effectively would destroy Cha-bad’s ability to place its menorah in Calder Plaza during Chanukah absent Chabad’s entry into this suit as an intervenor.

Having determined that Chabad qualifies for intervention as of right, we must decide if we are permitted to so hold at this stage in the proceedings. Denial by a district court of an application for intervention as of right under Rule 24(a) is appealable. United States v. Dallas County Commission, 850 F.2d 1433 (11th Cir.1988), cert. denied, 490 U.S. 1030, 109 S.Ct. 1768, 104 L.Ed.2d 203 (1989). However, we do not have a formal denial of Chabad’s application before us. Judge En-slen merely delayed a hearing on Chabad’s motion until the end of Chanukah. The question we must decide is whether such a delay is the practical equivalent of a denial of Chabad’s application.

We hold that it is. We reach this conclusion by keeping in mind the purpose of Rule 24(a). “The general purpose of original Rule 24(a)(2) was to entitle an absentee, purportedly represented by a party, to intervene in an action if he could establish with a fair probability that the representation was inadequate.” Notes of Advisory Committee on Rules, 1966 Amendment. Chabad’s interest in this case will disappear when Chanukah ends. Grand Rapids’s failure to appeal placed that interest at risk by removing from the action the only party who could argue to the court that the placement of Chabad’s menorah in the Plaza for Chanukah was not unconstitutional. Delaying a hearing on Chabad’s application until its interest is almost non-existent is tantamount to denying it. The spirit of Rule 24(a)(2), if not its letter, requires us to treat any order of a district court as a denial of an application to intervene that has the same effect on the intervenor’s interest as would an outright denial.

We also hold that we will expedite this case by permitting Chabad to combine an appeal from the district court’s injunction simultaneously with the application to intervene that permits them to make such an appeal. We note that had the district court granted Chabad’s motion, as we hold that it should have, the court’s order of injunction would be appealable as an interlocutory order. 28 U.S.C. § 1292(a)(1). As Cha-bad’s interest dissipates with every passing day, we would fail to enforce the purpose of Rule 24(a) if we did not permit it to appeal this decision in a timely fashion that permits it to protect that interest. The stay motions are therefore properly before us.

Ill

We must decide, therefore, whether we should stay Judge Enslen’s order. Under Fed.R.App.P. 8

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Cite This Page — Counsel Stack

Bluebook (online)
922 F.2d 303, 1990 WL 199834, Counsel Stack Legal Research, https://law.counselstack.com/opinion/americans-united-for-separation-of-church-state-v-city-of-grand-rapids-ca6-1990.