Grossbaum v. Indianapolis-Marion County Building Authority

100 F.3d 1287, 1996 WL 668259
CourtCourt of Appeals for the Seventh Circuit
DecidedNovember 20, 1996
DocketNo. 95-3976
StatusPublished
Cited by14 cases

This text of 100 F.3d 1287 (Grossbaum v. Indianapolis-Marion County Building Authority) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Grossbaum v. Indianapolis-Marion County Building Authority, 100 F.3d 1287, 1996 WL 668259 (7th Cir. 1996).

Opinion

KANNE, Circuit Judge.

This case presents the issue of what role a government body’s motive plays in constitutional analysis when that body tries to regulate speech in a nonpublic forum. The Indianapolis-Marion County Building Authority amended its rules and regulations to prohibit private groups and individuals from exhibiting displays in the lobby of its City-County Building. This rule prevented the plaintiffs from displaying a menorah in the lobby as they had done for eight years between 1985 and 1992. The plaintiffs sought a preliminary injunction against the new rule so they could again display their menorah. The plaintiffs contended that even though the rule is viewpoint-neutral, its adoption was motivated by an unconstitutional desire to retaliate against the plaintiffs for previous litigation and to discriminate against their religious viewpoint. The District Court denied the motion for the preliminary injunction. Because we hold that the motive of a government body is irrelevant when it enacts a content-neutral rule that regulates speech in a nonpublic forum, we affirm.

I. HISTORY

This is the second time that this case has come before us. See Grossbawm v. Indianapolis-Marion County Building Authority, 63 F.3d 581 (7th Cir.1995) (Grossbaum I). In the previous appeal, Rabbi Grossbaum and Lubavitch of Indiana, Inc.1 (“Lubavitch”) successfully challenged a policy of the Indianapolis-Marion County Building Authority (“Building Authority”) that prohibited religious displays and symbols (such as the plaintiffs’ menorah) in the lobby of the City-County Building2 in Indianapolis. We held that “the prohibition of the menorah’s message because of its religious perspective was unconstitutional under the First Amendment’s Free Speech Clause.” Grossbaum I, 63 F.3d at 592. This second appeal now challenges a new Building Authority policy that prohibits all private displays, religious or otherwise.

From 1985 to 1992, Rabbi Grossbaum displayed a five-foot high, wooden menorah each year in the City-County Building lobby. In 1993, however, the Indiana Civil Liberties Union (“ICLU”) and the Jewish Community Relations Council (“JCRC”) both asked the Building Authority to change its policy. The ICLU argued that religious displays in a nonpublic forum violated the Establishment Clause and that the Building Authority should therefore designate the lobby as a “public forum” to make it clear that all groups would have access to the lobby. The JCRC, meanwhile, wrote a letter to the Building Authority asking that all religious displays be banned so that groups such as the Ku Klux Klan could not use the menorah’s presence as an argument for letting in their religious displays.

Expressing concern about losing control over the lobby if it became a public forum, the Building Authority Board of Directors in late 1993 banned all religious displays, thus simultaneously satisfying the JCRC and mooting the ICLU’s Establishment Clause complaint. Lubavitch, however, sought a preliminary injunction against the policy, alleging that it was an unconstitutional exclusion of speech protected by the First Amendment. As mentioned above, this court agreed and granted Lubavitch injunctive relief. 63 F.3d at 582.

After our August 1995 decision, however, the Building Authority Board again modified [1291]*1291its lobby display policy. At its October 2, 1995 meeting, the Board amended Rule 13 of its “Rules and Regulations Governing The City-County Braiding and Grounds” to read, in part:

No displays, signs or other structures shall be erected in the common areas by any non-governmental, private group or individual since such objects may interfere with unobstructed and safe ingress and egress by employees of the governmental tenants and by the general public conducting business with government offices and courts in the City-County Braiding.

On November 29, 1995, Lubavitch amended its original complaint and again sought a preliminary injunction to allow the display of its menorah. Although Rule 13 is content-neutral, Lubavitch claimed that the Board enacted the new rule with an unconstitutional intent. More specifically, Lubavitch alleged two counts under 42 U.S.C. § 1983: 1) that the Board intended to retaliate against Lu-baviteh for exercising its right to seek judicial relief and its right to speak in the City-County Building lobby, and 2) that the Board intended to perpetuate the viewpoint discrimination that the Board had earlier attempted when it banned all religious displays in the lobby.

Lubavitch offered three general categories of evidence to support its claims of unconstitutional motive. First, Lubavitch claimed that the Building Authority enacted Rule 13 in a surreptitious manner. Rule 13 was adopted less than two months after this court’s decision in favor of Lubavitch, and the only public notice that the Board might change Rule 13 at its October 1995 meeting was a vague agenda item referring to “Policies on Use of Common Areas.” The Building Authority responded, however, that it had at all times followed Indiana’s Open Door Law procedures. Second, Lubavitch disputed the Board’s justification for the new Rule 13. According to the Board’s minutes, the Board banned private displays to assure the free flow of pedestrian traffic. in the lobby. The minutes also state that lobby congestion was a particular concern of the Board after it had approved new security measures (such as metal detectors in the lobby) in June 1995. Lubavitch, however, argued that there was no history of displays disrupting lobby traffic that would justify banning all private displays. Third, Lubav-iteh cited deposition testimony by Board members that it was the Board’s intent to ban religious displays. The Building Authority countered that the testimony was taken out of context in that the- admission of a desire to ban religious displays was merely a logical implication of the Board’s broader desire to ban all private displays.

The District Court denied Lubavitch’s motion for a preliminary injunction, finding that the plaintiffs had not shown a reasonable likelihood of prevailing on either their retaliation or their viewpoint discrimination claim. 909 F.Supp. 1187, 1211 (S.D.Ind.1995). The court held that although the new Rule 13 was a response to Lubavitch’s prior litigation, the rule “remedied the constitutional violation and was not motivated by any desire to punish plaintiffs or to get even with them for filing suit.” Id. Similarly, the court found that the Board’s decision was not “a mask for a desire to prohibit the expression of these plaintiffs’ or others’ religious beliefs.” Id. Because the balance of harms to the parties was not lopsided, the District Court therefore denied the preliminary injunction. Lu-bavitch appealed pursuant to 28 U.S.C. § 1292(a)(1), which gives us jurisdiction to review interlocutory orders that deny injunc-tive relief.

II. Analysis ■

A. Standard of Review

In considering a motion for a preliminary injunction, a district court must first determine whether the moving party has demonstrated 1) some likelihood of prevailing on the merits, and 2) an inadequate remedy at law and irreparable harm if preliminary relief is denied.

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100 F.3d 1287, 1996 WL 668259, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grossbaum-v-indianapolis-marion-county-building-authority-ca7-1996.