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Freethinkers v. City of Fargo

August 16, 2010

RED RIVER FREETHINKERS, PLAINTIFF,
v.
CITY OF FARGO, DEFENDANT.



The opinion of the court was delivered by: Karen K. Klein United States Magistrate Judge

REPORT AND RECOMMENDATION

Plaintiff Red River Freethinkers ("Freethinkers") alleges a monument displaying the Ten Commandments, which is situated on land owned by the City of Fargo, violates the Establishment Clause of the First Amendment. The City has moved to dismiss plaintiff's complaint for lack of standing.

Summary of Recommendation

Plaintiff has not met its burden of establishing that it has standing to challenge the constitutionality of the City of Fargo's reversal of its decision to move the Ten Commandments monument to private property and the City's adoption of an initiated ordinance effectively prohibiting removal of the monument. Defendant's motion to dismiss (Doc. # 24), converted to a motion for summary judgment (See Notice and Order, Doc. # 37), should be GRANTED and plaintiff's complaint should be DISMISSED.

Factual Background

This case involves the same monument that was the subject of Twombly v. City of Fargo, Case No. A3-02-137, which this court dismissed in a grant of summary judgment in September 2005. Twombly, 288 F.Supp.2d 983 (D.N.D. 2005). The monument was donated to the City by the Fraternal Order of Eagles in 1958. It was stored for a time and then in 1961was placed in a civic plaza surrounded by the Fargo Civic Auditorium, the Fargo Public Library and Fargo City Hall. The monument stood unchallenged for over 40 years, until five individuals, all members of plaintiff Red River Freethinkers, challenged its constitutionality under the Establishment Clause. Freethinkers is "composed of members whose view of the supernatural is atheistic and agnostic." Id. at 986 (quoting stipulated Statement of Facts). In dismissing the members' complaint in Twombly, this court held the monument did not violate the Establishment Clause, specifically finding that "the monument sends a clear secular message concurrent with the obvious religious one." Id. at 991. Further, the court found contextual support for its ruling in the physical location of the monument and the number of years it stood without controversy. No appeal was taken from the court's ruling.

In March 2007 Freethinkers submitted a proposal to the City to sponsor and donate a "sister" monument to be placed near the Ten Commandments monument. (Copy of Sister Monument Offer Submitted to City, Exhibit 1 to Affidavit of Carol Sawicki, Doc. # 38-1). The proposed monument would display the following inscription:

THE GOVERNMENT OF THE UNITED STATES OF AMERICA IS NOT, IN ANY SENSE FOUNDED ON THE CHRISTIAN RELIGION FROM THE TREATY OF TRIPOLI, APPROVED UNANIMOUSLY BY THE UNITED STATES SENATE, JUNE 7, 1797.

SIGNED BY PRESIDENT JOHN ADAMS

The dedication language on the monument was proposed as follows:

PRESENTED TO THE CITY OF FARGO BY THE RED RIVER FREETHINKERS IN RECOGNITION OF THE FIRST AMENDMENT RIGHT OF EVERY AMERICAN TO BELIEVE, OR NOT BELIEVE, IN ANY GOD [Dedication Date] (First Amended Complaint, ¶¶ 12 & 13, Doc. # 22).

The City Commission referred the Freethinkers' proposal to the City Attorney and City staff for consideration and recommendation. (City Commission Minutes for 3-26-07, Exhibit A to Affidavit of Robin Wolpert, Doc. # 25-2). At the June 18, 2007 Commission meeting, the City Attorney reported that the Freethinkers preferred that the City accept their proposal to donate a sister monument, but if the City would move the Ten Commandments monument to private property, the Freethinkers indicated their monument would not be needed. The Commission then voted to take the following three actions: (1) to decline to accept the Freethinkers' proposed donation of a sister monument, (2) to donate the Ten Commandments monument to a private entity so it could be relocated to private land, and (3) to receive proposals for such relocation, for consideration at the Commission meeting on July 16, 2007. (City Commission Minutes for 6-18-07, Exhibit B to Affidavit of Robin Wolpert, Doc. # 25-3; Video of June 18, 2007 City Commission Meeting, Exhibit 2 to Affidavit of Carol Sawicki, conventionally filed and noted at Doc. # 41).

Within a few days after this City Commission meeting some Fargo residents held a rally to collect signatures on a petition calling for the following initiated ordinance to be submitted by the City for vote of the electorate:

A marker or monument on City of Fargo property for 40 or more years may not be removed from its ...


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