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

784 F. Supp. 415, 1991 U.S. Dist. LEXIS 19683, 1991 WL 320480
Procedural entryThis page is a short order in Americans United for Separation of Church & State v. City of Grand Rapids. Read the opinion of the Court — 784 F. Supp. 403
District Court, W.D. Michigan·Decided November 21, 1991·No. No. 1:90-CV-946·Published

Opinion

OPINION

ENSLEN, District Judge.

Defendant City of Grand Rapids and In-tervenor Chabad House have filed a motion requesting a stay of this Court's permanent injunction, issued March 21,1991, during the pendency of defendants’ appeal of the injunction. Pursuant to the opinion and order issued on March 21, 1991, this Court ordered that defendants be permanently restrained and enjoined from issuing a permit allowing the erection of a menorah on Calder Plaza in Grand Rapids, Michigan. 784 F.Supp. 412. This order constituted a final judgment in a suit commenced by plaintiffs, an association known as Americans United for Separation of Church and State (Americans United) and a group of individuals, claiming that the Grand Rapids government’s practice of permitting the menorah display was an act respecting an establishment of religion in violation of the first amendment to the United States Constitution.

Defendants represent to the Court that oral argument in the appeal of the permanent injunction is scheduled on November 22, 1991, and explain that the Court of Appeals may not issue a ruling before the [416]*416beginning of Chanukah. The effect of granting defendants’ motion would be to allow the City to permit the erection of a menorah during this year’s Chanukah celebration, which, according to defendants, will commence on December 1, 1991.

PROCEDURAL HISTORY

Plaintiffs filed their complaint in this matter, accompanied by a motion for a preliminary injunction, on November 13, 1990, and the Court held a hearing on plaintiffs’ motion on December 5, 1990. At the hearing, the Court granted plaintiffs’ motion for a preliminary injunction and enjoined defendant from issuing a permit allowing the erection of a menorah on Galder Plaza. On December 21, 1990, the Court issued a written opinion that was substantially similar to the Court’s oral opinion of December 5, 1990. On December 7, 1990, two days after the hearing on plaintiffs’ motion, Chabad House filed a motion to intervene for the limited purposes of seeking clarification of the Court’s Order of December 5, and seeking to appeal that order. On the same day, December 7, 1990, the Court issued an amended preliminary injunction order responding, it believed, to the concerns raised by Chabad House. The Court also set Chabad House’s motion to intervene for a hearing on December 18, 1990. See Court’s Opinion of January 18,1991 (describing in detail the circumstances surrounding the actions of the Court on Chabad’s motion).

On December 10, 1990, Chabad House filed an emergency notice of appeal with the Sixth Circuit, appealing the December 5 and 7 decisions of this Court. On December 11, 1990, the Court received an order from the Sixth Circuit granting Chabad House’s motion to intervene and staying the preliminary injunction entered by the Court on December 5, 1990. As acknowledged by Judge Guy in his concurrence, when making its decision, the Court of Appeals did not have any record before it other than the pleadings. The Court of Appeals did not have the benefit of this Court’s written opinion, which had not yet been issued, nor did it have a transcript of the hearing containing this Court’s bench opinion.

On December 17, 1990, the Court received an information copy of a slip opinion from the Sixth Circuit, which discussed the Circuit’s reasoning for granting the motion to intervene and the motion to stay the preliminary injunction. Americans United v. City of Grand Rapids, 922 F.2d 303 (6th Cir.1990). Again, however, the Court of Appeals acknowledged that it had no transcript or written opinion of this Court before it at the time of the writing of the opinion. Id. at 305. The Court of Appeals further noted that in granting the stay of the preliminary injunction, “any decision on [defendants’] likelihood of success [on the merits] must be confessedly tentative,” id. at 309, and that the views expressed in the opinion “are only those of the subscribing judges, and are subject to revision on full hearing.” Id. at 310.

Following the Sixth Circuit’s mandate, this Court proceeded to address the merits of plaintiffs’ motion for a permanent injunction. To that end, the parties agreed to file a set of stipulated facts, which were filed on February 25, 1991, and, shortly thereafter, all parties filed additional briefs. This Court subsequently issued a written opinion that incorporated the parties’ stipulated facts, noting that those facts were substantially similar to the facts expressed in the Court’s Opinion of December 21, 1991. Having read the stipulation of facts and the parties’ briefs, I granted plaintiffs’ requested relief and entered an order permanently restraining and enjoining defendants from issuing a permit that would allow the erection of a menorah on Calder Plaza in Grand Rapids, Michigan. See Order of Court, March 21, 1991. Because I found that the reasons for granting the permanent injunction had been fully developed and analyzed in this Court’s December 21, 1990 Opinion, which written opinion and analysis had not been reviewed by the Sixth Circuit, I incorporated the December 21, 1990 Opinion in the March 21, 1991 Opinion granting judgment to plaintiffs. In addition, I analyzed pertinent cases decided since this matter was briefed and orally argued in December 1990. [417]*417See 784 F.Supp. at 414-415; Chabad-Lubavitck of Georgia v. Harris, 752 F.Supp. 1063 (N.D.Ga.1990); Congregation Lubavitch v. Cincinnati, 923 F.2d 458 (6th Cir.1991).

STANDARD

Rule 62(c) of the Federal Rules for Civil Procedure authorizes a trial court to suspend, modify, restore, or grant an injunction during the pendency of an appeal of that injunction. Fed.R.Civ.P. 62(c). A trial court has complete discretion to decide whether a stay pending appeal of an injunction is appropriate. Id. In order to obtain a stay of an injunction pending appeal the moving party, the defendants in this case, must show: (1) the likelihood of success on the merits of the appeal; (2) irreparable injury to the party seeking the stay if the stay is denied; (3) no substantial harm to the opposing party; and (4) the public interest favors the grant of a stay. Hilton v. Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 2119, 95 L.Ed.2d 724 (1987). The Sixth Circuit has directed that, in controversies like the one before me now, the decision necessarily turns on the first factor, defendant’s likelihood of success on the merits. Congregation Lubavitch, 923 F.2d at 460; Americans United, 922 F.2d at 306.

DISCUSSION

In their legal memorandum, defendants do not apply the four-part Hilton test to their motion requesting a stay of the permanent injunction, nor do they address the likelihood of success on the merits of their appeal. Defendants merely argue that “[bjecause the question presented by the permanent injunction is identical to that presented by the earlier preliminary injunction, the Sixth Circuit’s determination that a stay should be entered of that order compels the entry of a stay here as well.” Defendants’ memorandum of law, at 3. I am not persuaded by defendants’ argument.

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Americans United for Separation of Church & State v. City of Grand Rapids, 784 F. Supp. 415, 1991 U.S. Dist. LEXIS 19683, 1991 WL 320480 (W.D. Mich. 1991).

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