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Freedom From Religion Foundation Inc. v. Zielke

decided: May 10, 1988.

FREEDOM FROM RELIGION FOUNDATION, INC., A WISCONSIN NONSTOCK CORPORATION, PHYLLIS GRAMS, ANNIE LAURIE GAYLOR, AND ANNE NICOL GAYLOR, PLAINTIFFS-APPELLANTS,
v.
PATRICK ZIELKE, INDIVIDUALLY AND AS MAYOR OF THE CITY OF LA CROSSE, WISCONSIN, COMMON COUNCIL OF LA CROSSE, WISCONSIN, AND CITY OF LA CROSSE, WISCONSIN, DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Western District of Wisconsin, No. 85 C 850--Barbara B. Crabb, Judge.

Cummings and Flaum, Circuit Judges, and Grant, Senior District Judge.*fn*

Author: Flaum

FLAUM, Circuit Judge.

Phyllis Grams, Annie Laurie Gaylor, Anne Nicol Gaylor, and the Freedom from Religion Foundation, Inc. (collectively "the appellants") filed an action in federal court pursuant to 42 U.S.C. § 1983 to enjoin the City of La Crosse from displaying a monument of the Ten Commandments in a city park. The appellants alleged that the display violated their rights under the first and fourteenth amendments to the Constitution to be free from public and governmental support for religion. They also asserted that alleged expenditures of public funds on the monument violated Article I, § 18 of the Wisconsin Constitution. The district court dismissed the appellants' action on the ground that they lacked standing to bring the suit, 663 F. Supp. 606 (1987), and we affirm.

I.

In 1899 the City of La Crosse, Wisconsin purchased a one-acre plot of land for $6,000 and created a public park. The park, called Cameron Park, is located near the La Crosse business district. In 1964 the Fraternal Order of Eagles donated a monument of the Ten Commandments to the city for display in Cameron Park.*fn1 The La Crosse City Park Commission voted to accept the monument, which was dedicated on June 19, 1965.

The monument resembles a tombstone, and contains an English translation of one version of the Ten Commandments. It is about five feet, four inches high, thirty-three inches wide and ten inches deep; the monument is located eight feet from the sidewalk that surrounds the park, and is clearly visible from the sidewalk. At night the monument is lighted from the roof of the Eagles' building across the street from Cameron Park. Aside from a few park benches, the monument is the only man-made structure in the park. Although the City of La Crosse owns and maintains Cameron Park, the city did not buy the monument nor does it expend funds on the monument's maintenance.

In 1985 Phyllis Grams, a resident of La Crosse, became aware of the monument when a friend brought it to her attention. Grams then went to see the monument for herself. At trial, Grams testified that she was offended by the display because she viewed it as a message from the city about the religious beliefs that private citizens should hold. Grams was sufficiently offended by the Ten Commandments monument that she complained about it to the Common Council of La Crosse. Appellant Anne Nicol Gaylor, President of the Freedom From Religion Foundation, also wrote a letter to the Common Council complaining about the monument. After receiving these complaints, the Common Council held a public hearing on the question of the monument's presence in Cameron Park. Following the hearing, the Common Council decided not to take any action on the monument.

As a result, the appellants filed an action in district court pursuant to 42 U.S.C. § 1983 to enjoin the appellees from continuing to display the monument in Cameron Park. The appellants contended that the continued display of a monument of the Ten Commandments in a city-owned park was a governmental endorsement and establishment of religion which violated the first and fourteenth amendments to the United States Constitution. Additionally, the appellants asked the district court to exercise pendent jurisdiction over their claim that the city's expenditure of funds on the monument violated Article I, § 18 of the Wisconsin Constitution.

Following a bench trial, the district court concluded that the appellants failed to meet the "case or controversy" requirement of Article III of the Constitution. The district court therefore dismissed the action because the appellants lacked standing to contest the constitutionality of the monument's presence in Cameron Park.

On appeal the individual appellants argue that they have standing because they have been injured by the existence of the monument.*fn2 They also contend that the Freedom From Religion Foundation has organizational standing as a representative of its members, several of whom were allegedly injured by the city's display of the monument in Cameron Park. Finally, the appellants assert that Phyllis Grams has standing to challenge the constitutionality of the display because she is a taxpayer of the City of La Crosse and the city has allegedly used tax money to support the display.

In contrast, the appellees argue that the appellants do not have standing to challenge the constitutionality of the monument because none of the appellants has demonstrated a distinct and palpable injury resulting from the defendants' allegedly unconstitutional activity. Further, the appellees assert that Phyllis Grams does not have standing to bring this action as a taxpayer of the City of La Crosse because she failed to allege or prove that she is actually a La Crosse taxpayer. Finally, the appellees claim that even if Grams is a taxpayer, she cannot have standing on that ground because she did not establish that the City of La Crosse has ever used tax funds on the monument.

II ...


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