`
`No. 17-1024
`
`================================================================
`
`In The
`Supreme Court of the United States
`
`--------------------------------- ---------------------------------
`
`ANN WALDRON DAWSON, JEFFREY ALAN GRUNOW,
`WAYNE ERXLEBEN, SHIRLEY ERXLEBEN,
`LAURA GRACE STERENBERG, GARY KIEVIT,
`AND MARY KIEVIT,
`
`Petitioners,
`
`v.
`
`CITY OF GRAND HAVEN,
`
`Respondent.
`
`--------------------------------- ---------------------------------
`
`On Petition For Writ Of Certiorari
`To The Michigan Court Of Appeals
`
`--------------------------------- ---------------------------------
`
`BRIEF IN OPPOSITION TO PETITION
`FOR A WRIT OF CERTIORARI
`
`--------------------------------- ---------------------------------
`
`ROBERT A. LUSK
`Counsel for Respondent
`LUSK ALBERTSON PLC
`409 E. Jefferson, Fifth Floor
`Detroit, Michigan 48226-4300
`(248) 988-5662
`RLusk@LuskAlbertson.com
`
`================================================================
`COCKLE LEGAL BRIEFS (800) 225-6964
`WWW.COCKLELEGALBRIEFS.COM
`
`
`
`
`
`i
`
`QUESTIONS PRESENTED
`
`
`1. Did the Michigan Court of Appeals Properly Apply
`Government Speech Analysis in Concluding that
`the Dewey Hill monument feature pole constitutes
`government speech?
`
`2.
`
`3.
`
`4.
`
`Is the proposition that Respondent created a Lim-
`ited Public Forum Unsupported by Law?
`
`Is Resolution 15-013 Consistent with the Equal
`Protection Clause of the U.S. Constitution?
`
`Is the Michigan Court of Appeals’ Opinion Con-
`sistent with the Jurisprudence of this Court?
`
`
`
`ii
`
`TABLE OF CONTENTS
`
`Page
`QUESTIONS PRESENTED ................................
`i
`TABLE OF CONTENTS ......................................
`ii
`TABLE OF AUTHORITIES .................................
`iii
`STATEMENT OF THE CASE..............................
`1
`ARGUMENT ........................................................
`5
`
`I. MICHIGAN PROPERLY HELD THAT THE
`DEWEY HILL MONUMENT FEATURE
`POLE
`IS CONTROLLED BY THE
`GOVERNMENT SPEECH DOCTRINE
`ELUCIDATED IN SUMMUM ...................
`A. SUMMUM AND ITS PROGENY ARE
`CONTROLLING IN THIS CASE ........
`B. PETITIONERS’ ARGUMENTS AGAINST
`A FINDING OF GOVERNMENT SPEECH
`IN THIS CASE ARE UNAVAILING ..... 16
` II. PETITIONERS’ ARGUMENT THAT THE
`DEWEY HILL MONUMENT FEATURE
`POLE IS A LIMITED PUBLIC FORUM IS
`UNSUPPORTED BY LAW ........................ 24
` III. RESOLUTION 15-013 IS CONSISTENT
`WITH EQUAL PROTECTION UNDER THE
`U.S. AND MICHIGAN CONSTITUTIONS .... 31
` IV. THE LOWER COURTS PROPERLY APPLIED
`THE APPLICABLE CONSTITUTIONAL
`JURISPRUDENCE IN THIS CASE ............. 36
`CONCLUSION ..................................................... 37
`
`5
`
`5
`
`
`
`iii
`
`TABLE OF AUTHORITIES
`
`Page
`
`CASES
`Bannon v. Sch. Dist. of Palm Beach Cty., 387 F.3d
`1208 (11th Cir. 2004) ............................................... 35
`Capitol Square Review and Advisory Bd. v. Pi-
`nette, 515 U.S. 753, 115 S.Ct. 2440, 132
`L.Ed.2d 650 (1995) ............................................ 16, 17
`Cornelius v. NAACP Legal Defense & Ed. Fund,
`Inc., 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d
`567 (1985) ................................................................ 18
`Fox v. Michigan Employment Sec. Comm’n, 379
`Mich. 579, 153 N.W.2d 644 (1967) .......................... 32
`Freedom from Religion Found., Inc. v. City of
`Warren, 873 F.Supp.2d 850 (E.D. Mich. 2012) ..... 26, 27
`Golden v. Rossford Exempted Vill. Sch. Dist., 445
`F.Supp.2d 820 (N.D. Ohio 2006) ............................. 35
`Good News Club v. Milford Cent. Sch., 533 U.S.
`98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001) ..... 28, 34
`Harville v. State Plumbing & Heating, Inc., 218
`Mich.App. 302, 553 N.W.2d 377 (1996) ................... 32
`In re Contempt of Dudzinski, 257 Mich.App. 96,
`667 N.W.2d 68 (2003) .............................................. 32
`J.S. v. Holly Area Schs., 749 F.Supp.2d 614 (E.D.
`Mich. 2010) .............................................................. 30
`Kincaid v. Gibson, 236 F.3d 342 (6th Cir. 2001) ..... 24, 25
`Lamb’s Chapel v. Ctr. Moriches Union Free Sch.
`Dist., 508 U.S. 384, 113 S.Ct. 2141, 124
`L.Ed.2d 352 (1993) .................................................. 26
`
`
`
`iv
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`Mech v. Sch. Bd. of Palm Beach Cty, Fla., 806
`F.3d 1070 (11th Cir. 2015) ....................................... 12
`Perry Ed. Ass’n v. Perry Local Educators’ Ass’n,
`460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794
`(1983) ................................................................. 25, 26
`Pleasant Grove City v. Summum, 555 U.S. 460,
`129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) ......... passim
`Reed v. Town of Gilbert, 576 U.S. ___, 135 S.Ct.
`2218, 192 L.Ed.2d 236 (2015) ................................. 34
`Rosenberger v. Rector and Visitors of Univ. of Va.,
`515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700
`(1995) ........................................................... 25, 31, 34
`Satawa v. Macomb Cty. Rd. Comm’n, 689 F.3d
`506 (6th Cir. 2012) ................................................... 22
`Sloan v. Lemon, 413 U.S. 825, 93 S.Ct. 2982, 37
`L.Ed.2d 939 (1973) .................................................. 35
`Southeastern Promotions, Ltd. v. Conrad, 420 U.S.
`546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) ............. 22
`Thomas v. Chicago Park Dist., 534 U.S. 316, 122
`S.Ct. 775, 151 L.Ed.2d 783 (2002) .......................... 22
`United States v. Kokinda, 497 U.S. 720, 110 S.Ct.
`3115, 111 L.Ed.2d 571 (1990) ................................. 24
`United Veterans Mem’l & Patriotic Ass’n v. City
`of New Rochelle, 72 F.Supp.3d 468 (S.D.N.Y.
`2014) ................................................................ passim
`Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854,
`162 L.Ed.2d 607 (2005) ........................................... 21
`
`
`
`v
`
`TABLE OF AUTHORITIES – Continued
`
`Page
`
`Walker v. Texas Div., Sons of Confederate Veter-
`ans, Inc., 576 U.S. ___, 135 S.Ct. 2239, 192
`L.Ed.2d 274 (2015) ............................ 9, 11, 12, 13, 14
`Wellmaker v. Dahill, 836 F.Supp. 1375 (N.D.
`Ohio 1993) ............................................................... 32
`Woodland v. Michigan Citizens Lobby, 423 Mich.
`188, 378 N.W.2d 337 (1985) .................................... 32
`
`
`CONSTITUTIONAL PROVISIONS
`U.S. Const. amend. I ........................................... 5, 9, 16
`Mich. Const. Art. 1, Sec. 2 ................................... 3, 4, 31
`Mich. Const. Art. 1, Sec. 5 ............................................. 3
`
`STATUTES
`MCL 37.2101(1) .......................................................... 31
`
`
`
`1
`
`STATEMENT OF THE CASE
`The City of Grand Haven lies on Michigan’s west
`
`coast, overlooking Lake Michigan. The picturesque
`character of the city is encapsulated at the intersection
`of Harbor Drive and Washington Avenue, where a mu-
`seum, bleachers, and stage overlook the Grand River
`as it empties into Lake Michigan. On the other side of
`the Grand River is a sand dune known as Dewey Hill.
`(Pet. App. 14a, 27a-29a, 84a-85a).
`
`At the crest of Dewey Hill there exists a perma-
`
`nently installed monument. The monument, which is
`built into the dune and brandishes an adjustable “fea-
`ture pole,” was designed, built, and donated to the City
`by private citizens. (Pet. App. 1a-2a, 28a-29a, 85a-87a).
`The monument and pole were designed and engineered
`to retain the soil on Dewey Hill. (Pet. App. 2a, 28a). The
`feature pole may be raised as a display, and, in the
`raised posture, the pole is viewable from the city’s
`downtown business district on Washington Avenue.
`(Pet. App. 84a-87a).
`
`Since its inception, the Dewey Hill monument fea-
`
`ture pole has taken the form of an anchor, cross, or star.
`(Pet. App. 28a). While the feature pole is retracted on
`most days, the City historically raised the pole in one
`of these three forms for various events and City cele-
`brations. Additionally, the City allowed private citizens
`to request display of the feature pole as the anchor,
`cross, or star. Citizens making any such request shoul-
`dered the costs associated with raising the feature
`pole. (Pet. App. 14a).
`
`
`
`2
`
`During the October 20, 2014, meeting of the Grand
`
`Haven City Council, Mitch Kahle spoke, claiming to
`speak for a group he referred to as “remove the Grand
`Haven Cross.” (Pet. App. 29a-30a). Mr. Kahle voiced an
`interest in placing items on the feature pole or building
`other expressive structures on the dune. (Pet. App. 29a-
`30a). Nearly three months later, on January 5, 2015,
`the City Council passed Resolution 15-013 (the “Reso-
`lution”). The Resolution provided that, based on the po-
`tential environmental impact and the desire to prevent
`Dewey Hill from becoming a place of debate and con-
`troversy, the dune would not be designated as a public
`forum. (Pet. App. 84a-87a). The Resolution further re-
`stricted future display of the feature pole. Specifically,
`the Resolution provided that, due to the City’s long-
`time relationship with the U.S. Coast Guard and its
`designation as Coast Guard City U.S.A., the feature
`pole would only thereafter be raised in its anchor form.
`(Pet. App. 84a-87a).
`
`The minutes of the January 5, 2015, City Council
`
`meeting reflect that the Resolution carried by a vote of
`three to two. (Pet. App. 83a). Additionally, the minutes
`record the rationale adopted by various council mem-
`bers relative to their eventual votes. The members who
`voted in favor of the Resolution communicated their
`desire to prevent the City from displaying a religious
`symbol, as such display would be inappropriate. (Pet.
`App. 83a-84a).
`
`Specifically, the minutes provide, “Council Mem-
`
`ber Monetza stated, if allowed to be a public forum,
`Dewey Hill would stop being a beautiful backdrop to
`
`
`
`3
`
`the downtown and become a hideous billboard. . . . It
`did not fit the mission of the City to get into a pro-
`tracted and expensive court fight over a supposed right
`to use public resources to own and display anyone’s re-
`ligious symbols.” (Pet. App. 83a). Similarly, “Council
`Member Hierholzer said Dewey Hill was an important
`part of the City and was a focus of the waterfront. He
`would hate to give up control of the dune. . . . The com-
`munity could place a cross in the community, but would
`have to be on private property.” (Pet. App. 84a). Finally,
`“Council Member Fritz noted there was more than one
`religion in the world and Grand Haven was a diverse
`community.” (Pet. App. 84a).
`
`Notably, citizens are still permitted under the Res-
`
`olution to make a request to raise the feature pole.
`However, the feature pole must take the form of an an-
`chor, and the previous cross and star options are no
`longer available. (Pet. App. 86a-87a).
`
`First Reformed Church, where several of the Peti-
`
`tioners are members, historically paid to have the fea-
`ture pole displayed in the form of a cross during its
`“Worship on the Waterfront” services, which are held
`on the bleachers and stage referenced above. (Pet. App.
`29a). Because of the Resolution, First Reformed
`Church no longer enjoys the option of requesting the
`feature pole in cross form during its services.
`
`Petitioners filed a three-count Complaint in the
`
`Ottawa County Circuit Court on June 12, 2015, alleg-
`ing that the City violated Article 1, Section 5 of the
`Michigan Constitution (Freedom of Speech), Article 1,
`
`
`
`4
`
`Section 2 of the Michigan Constitution (Equal Protec-
`tion), and seeking mandamus and injunctive relief.
`(Pet. App. 53a-55a). Both parties filed for summary dis-
`position. Oral argument was held on the cross-motion
`on August 10, 2015, and Judge Hulsing entered an
`Opinion and Order on August 25, 2015, granting the
`City’s motion and dismissing Petitioners’ Complaint in
`its entirety. (Pet. App. 13a-24a).
`
`Thereafter, Petitioners appealed to the Michigan
`
`Court of Appeals. That court affirmed the decision of
`the circuit court on December 29, 2016. (Pet. App. 1a-
`12a). The Court of Appeals determined that its analy-
`sis was limited to the Dewey Hill monument, including
`the feature pole, because it was a separate entity from
`the waterfront stage and bleachers. To that end, the
`Court of Appeals reasoned that, under Pleasant Grove
`City v. Summum, 555 U.S. 460, 129 S.Ct. 1125, 172
`L.Ed.2d 853 (2009), the Dewey Hill monument was
`government speech. For that reason, forum analysis
`was inapplicable, and the City could determine the
`messages it wished to convey with the Dewey Hill
`monument.
`
`Petitioners then sought leave to appeal from the
`
`Michigan Supreme Court, and the request for leave
`was denied on October 24, 2017. They now request that
`this Honorable Court grant review of the matter.
`
`
`
`--------------------------------- ---------------------------------
`
`
`
`
`
`5
`
`ARGUMENT
`I. MICHIGAN PROPERLY HELD THAT THE
`DEWEY HILL MONUMENT FEATURE
`POLE IS CONTROLLED BY THE GOVERN-
`MENT SPEECH DOCTRINE ELUCIDATED
`IN SUMMUM
`A. SUMMUM AND ITS PROGENY ARE
`CONTROLLING IN THIS CASE
`Summum is this Court’s landmark case regarding
`
`monuments in public parks. In that case, a public park
`contained 15 monuments, at least 11 of which were do-
`nated by private groups or individuals. Summum, 555
`U.S. at 464. The monuments included, most notably for
`that case, a Ten Commandments monument privately
`donated roughly 40 years before the onset of litigation.
`Id. at 465. Respondent was a religious organization
`founded four years after the Ten Commandments mon-
`ument was donated, and it submitted two separate re-
`quests to erect a stone monument in the city park
`featuring “the Seven Aphorisms of SUMMUM.” Id. Pe-
`titioner city denied the requests, explaining that its
`practice was to limit park monuments to those that
`were directly related to the history of the city or were
`donated by groups with longstanding ties to the com-
`munity. Id. Respondent filed an action, claiming that
`the city “had violated the Free Speech Clause of the
`First Amendment by accepting the Ten Command-
`ments monument but rejecting the proposed Seven
`Aphorisms monument.” Id. at 466.
`
`
`
`6
`
`The Court’s analysis centered around speaker
`
`identity. Although it recognized that public parks are a
`traditional public forum in which the government is
`restrained from imposing content-based restrictions,
`the Court determined that monuments in a public
`park are generally government speech. Id. at 470. The
`Free Speech Clause regulates government censorship
`of private speech, but it does not regulate government
`speech. Consequently, where government speech oc-
`curs, the Free Speech Clause is irrelevant. The Court
`explained:
`
`The Free Speech clause restricts govern-
`ment regulation of private speech; it
`does not regulate government speech. A
`government entity has the right to speak for
`itself. It is entitled to say what it wishes, and
`to select the views that it wants to express.
`
`Indeed, it is not easy to imagine how govern-
`ment could function if it lacked this freedom.
`If every citizen were to have a right to insist
`that no one paid by public funds express a
`view with which he disagreed, debate over is-
`sues of great concern to the public would be
`limited to those in the private sector, and the
`process of government as we know it radically
`transformed.
`A government entity may exercise this
`same freedom to express its views when
`it receives assistance
`from private
`sources for the purpose of delivering a
`government-controlled message. [Sum-
`mum, 555 U.S. at 467-468 (internal quotation
`
`
`
`7
`
`marks and citations omitted) (emphasis
`added).]
`
`The Summum Court determined that the monu-
`
`ments in the city’s park constituted government
`speech. It opined:
`
`There may be situations in which it is difficult
`to tell whether a government entity is speak-
`ing on its own behalf or is providing a forum
`for private speech, but this case does not pre-
`sent such a situation. Permanent monu-
`ments displayed on public property
`typically represent government speech.
`
`Governments have long used monuments to
`speak to the public. Since ancient times,
`kings, emperors, and other rulers have
`erected statues of themselves to remind their
`subjects of their authority and power. Trium-
`phal arches, columns, and other monuments
`have been built to commemorate military vic-
`tories and sacrifices and other events of civic
`importance. A monument, by definition, is
`a structure that is designed as a means
`of expression. When a government entity ar-
`ranges for the construction of a monument, it
`does so because it wishes to convey some
`thought or instill some feeling in those who
`see the structure.
`
`* * *
`Just as government-commissioned and
`government-financed monuments speak
`for the government, so do privately fi-
`nanced and donated monuments that the
`
`
`
`8
`
`government accepts and displays to the
`public on government land. It certainly is
`not common for property owners to open up
`their property for the installation of perma-
`nent monuments that convey a message with
`which they do not wish to be associated. And
`because property owners typically do not per-
`mit the construction of such monuments on
`their land, persons who observe donated mon-
`uments routinely – and reasonably – interpret
`them as conveying some message on the prop-
`erty owner’s behalf. In this context, there is
`little chance that observers will fail to
`appreciate the identity of the speaker.
`This is true whether the monument is located
`on private property or on public property, such
`as national, state or city park land.
`
`We think it is fair to say that throughout our
`Nation’s history, the general government
`practice with respect to donated monuments
`has been one of selective receptivity. A great
`many of the monuments that adorn the Na-
`tion’s public parks were financed with private
`funds or donated by private parties. . . . By ac-
`cepting monuments that are privately funded
`or donated, government entities save tax dol-
`lars and are able to acquire monuments that
`they could not have afforded to fund on their
`own. [Id. at 470-471 (citations omitted).]
`
`The Court did not adopt a per se rule that perma-
`
`nent monuments displayed on public property are gov-
`ernment speech. It allowed for some circumstances in
`which a permanent monument could be characterized
`
`
`
`9
`
`as private speech and, thus, where forum doctrine is
`applicable. For example, “[I]f a town created a monu-
`ment on which all of its residents (or all those meeting
`some other criterion) could place the name of a person
`to be honored or some other private message,” forum
`analysis may be appropriate. “But as a general matter,
`forum analysis simply does not apply to the installa-
`tion of permanent monuments on public property.” Id.
`at 480.
`
`In Walker v. Texas Div., Sons of Confederate Veter-
`
`ans, Inc., 576 U.S. ___, 135 S.Ct. 2239, 192 L.Ed.2d 274
`(2015), this Court revisited and applied this doctrine.
`Walker involved a dispute regarding Texas’ implemen-
`tation of specialty license plates. Texas automobile
`owners were required to display a license plate, which
`could be either a general-issue plate or a specialty li-
`cense plate. Id. at 2243. Those who desired a specialty
`plate could propose a plate design with a slogan, a
`graphic, or both. Id. Texas had the ultimate authority
`to approve or reject the design and, if approved, make
`the design available for display on vehicles registered
`in Texas. Id.
`
`The Sons of Confederate Veterans (“SCV”) submit-
`
`ted a proposal for a license plate containing a repre-
`sentation of the Confederate battle flag, and Texas
`denied the application based on its potential offensive-
`ness to the public. Id. at 2257-2258. SCV filed an action
`against Texas, alleging that denial of SCV’s proposal
`violated the Free Speech Clause of the First Amend-
`ment.
`
`
`
`10
`
`In a 5-4 decision, the Court rejected SCV’s argu-
`
`ment. While SCV argued that Texas had created a lim-
`ited public forum with respect to the license plates, the
`Court held that the license plates constituted govern-
`ment speech and, consequently, were not subject to fo-
`rum analysis. Specifically, the Court wrote:
`When government speaks, it is not
`barred by the Free Speech Clause from
`determining the content of what it says.
`That freedom in part reflects the fact that it
`is a democratic electoral process that first and
`foremost provides a check on government
`speech. Thus, government statements (and
`government actions and programs that take
`the form of speech) do not normally trigger the
`First Amendment rules designed to protect
`the marketplace of ideas. Instead, the Free
`Speech Clause helps produce informed opin-
`ions among members of the public, who are
`then able to influence the choices of a govern-
`ment that, through words and deeds, will re-
`flect its electoral mandate.
`
`Were the Free Speech Clause interpreted oth-
`erwise, government would not work. How
`could a city government create a successful re-
`cycling program if officials, when writing
`householders asking them to recycle cans and
`bottles, had to include in the letter a long plea
`from the local trash disposal enterprise de-
`manding the contrary? How could a state
`government effectively develop programs de-
`signed to encourage and provide vaccinations,
`if officials also had to voice the perspective of
`
`
`
`11
`
`those who oppose this type of immunization?
`It is not easy to imagine how government
`could function if it lacked the freedom to select
`the messages it wishes to convey. [Walker, 135
`S.Ct. at 2245-2246 (internal quotation marks
`and citations omitted).]
`
`The Walker Court elucidated three factors that, in
`
`addition to “a few other relevant considerations,” it
`concluded were determinative to Summum’s result. Id.
`at 2247. First, in view of the history of governments
`using monuments to speak to the public, the Court ob-
`served that a government entity that arranges for the
`construction of a monument does so for the purpose of
`conveying a thought or instilling a feeling in the
`viewer. Id. Second, because it is uncommon for prop-
`erty owners to allow permanent monuments that dis-
`play a message with which the property owner does not
`want to be associated, the Court recognized that an ob-
`server of a permanent monument usually and justifi-
`ably suspects that the monument conveys a message
`on the property owner’s behalf. Id. Third, the Court
`found persuasive the city’s control over monument se-
`lection and concluded that the general government
`practice of selective receptivity throughout history fa-
`vored a finding that the city effectively controlled the
`messages evinced by the monuments in the park. Id.
`
`The Walker Court applied these factors to Texas’
`
`specialty license plates and determined that the li-
`cense plates constituted government speech. The
`Court found that license plates have long “communi-
`cated messages from the States.” Id. at 2248. “Second,
`
`
`
`12
`
`Texas license plate designs are often closely identified
`in the public mind with the State.” Id. (internal quota-
`tion marks and citations omitted). “Third, Texas main-
`tains direct control over the messages conveyed on its
`specialty plates.” Id. at 2249. Accordingly, forum anal-
`ysis was not proper, and the Free Speech Clause did
`not apply to the specialty plates.
`
`Based on this Court’s jurisprudence, it is readily
`
`apparent that the Dewey Hill monument feature pole
`amounts to government speech and, therefore, is not
`within the bailiwick of the Free Speech Clause. The
`feature pole, which is part-and-parcel with the monu-
`ment, conveys the government’s message rather than
`private speech. In the universe of cases that present
`some consternation as to whether speech belongs to
`the government or to private parties, this case provides
`markedly less difficulty than other cases that have
`concluded decisively in the government’s favor. See
`Mech v. Sch. Bd. of Palm Beach Cty, Fla., 806 F.3d 1070
`(11th Cir. 2015) (applying the three factors set forth by
`Summum and Walker to determine that a sign adver-
`tising a business that donated to a school constituted
`government speech where the sign was hung on a
`school fence).
`
`As in Summum, the City’s decision to place the
`
`Dewey Hill monument feature pole on government
`property communicated a governmental message, and
`that was precisely the City’s intent. Respondent need
`not provide this Court with the historical governmen-
`tal practice of using monuments to convey a message;
`the Court already recognized that history when it
`
`
`
`13
`
`penned Summum nearly a decade ago. While the pole
`may be raised and lowered with more ease than the
`Summum monuments could be removed and replaced
`that fact does not justify differentiating between per-
`manent monuments and the retractable feature pole
`in this case. See United Veterans Mem’l & Patriotic
`Ass’n v. City of New Rochelle, 72 F.Supp.3d 468
`(S.D.N.Y. 2014), aff ’d by summary order, 615 Fed.Appx.
`693 (2d Cir. 2015) (holding that the flags on a flagpole
`on public land and maintained by a private organiza-
`tion was government speech). The pole is much closer
`to Summum’s permanent monuments than it is to
`Walker’s license plates, and even Walker resulted in a
`decision for the government.
`
` With respect to Summum’s second factor, there is
`no doubt that observers of the feature pole reasonably
`interpret the pole to convey a message on the City’s
`behalf. Petitioners concede that “[t]he Dewey Hill mon-
`ument was commissioned and has been displayed in
`the City for over 50 years and is considered a historical
`and commercial attraction and monument.” (Pet. App.
`28a). Similarly, the Resolution provides, “Dewey Hill
`has historically been a focal point for community-wide
`celebrations including display of the American Flag,
`regular performances of the musical fountain, and sea-
`sonal celebrations, – such as, Independence Day and
`Coast Guard Festival Celebrations.” (Pet. App. 85a). A
`reasonable observer cannot possibly conclude that the
`feature pole, which is a part of a government monu-
`ment, on government land, and which has been prom-
`inently utilized in government celebrations for more
`
`
`
`14
`
`than five decades, is anything but the object through
`which the government, and not a private speaker, con-
`veys its messages. A contrary position upends this
`Court’s analyses in Summum and Walker.
`
`Regarding the third factor, there is no argument
`
`that suggests anyone other than the City exerts total
`control over Dewey Hill, the monument, and the fea-
`ture pole. The entire practical purpose of the monu-
`ment is to maintain the ecological integrity of Dewey
`Hill, and the display on the feature pole is designed to
`work with the soil-retaining hoist. (Pet. App. 28a). Fur-
`thermore, Petitioners’ Complaint acknowledges that
`the City “promulgates and enforces under the color of
`law the policies, practices, and customs governing the
`use of Dewey Hill.” (Pet. App. 50a).
`
`The City Council members who voted in favor of
`
`the Resolution understood that the feature pole was
`under the City’s purview. Council Member Monetza ar-
`gued, “It did not fit the mission of the City to get into
`a protracted and expensive court fight over a supposed
`right to use public resources to own and display any-
`one’s religious symbols.” (Pet. App. 83a). Council Mem-
`ber Hierholzer recognized Dewey Hill’s importance to
`the City and voiced that he “would hate to give up con-
`trol of the dune.” (Pet. App. 84a). Likewise, Council
`Member Fritz stated, “The waterfront should not be
`used as a public forum.” (Pet. App. 84a).
`
`In several respects, this case is similar to New Ro-
`
`chelle, 72 F.Supp.3d at 475, where a federal district
`court recognized, “Other government speech cases not
`
`
`
`15
`
`involving permanent structures demonstrate that the
`government-speech doctrine is not as narrow as Plain-
`tiffs contend.” In New Rochelle, the city owned the New
`Rochelle Armory. The city government allowed a veter-
`ans’ association to oversee a flagpole that was located
`on Armory grounds, and this oversight included paint-
`ing and maintaining the flagpole and the flags adorn-
`ing it. Id. at 471. At one point, the association replaced
`an old American flag and, in addition, hung the Gads-
`den Flag – featuring the words “Don’t Tread on Me” –
`on the pole. When the city directed the association to
`remove the Gadsden Flag, the association filed an ac-
`tion claiming the city violated its free speech rights.
`
`In holding for the city, the New Rochelle court de-
`
`termined that the flagpole and the flags decorating it
`were government speech. The court explained:
`
`The Armory and its flagpole are owned by the
`City, and flags, like monuments, are reasona-
`bly interpreted as conveying a message on the
`property owner’s behalf. And like the monu-
`ments in Summum, the flagpole is located in
`a public space used for park and recreation
`purpose. Like most public parks, the Armory
`is closely identified in the public mind with
`the government unit that owns the land – the
`City of New Rochelle. [New Rochelle, 72
`F.Supp.3d at 474-475.]
`
`Like the flags in New Rochelle, the forms dis-
`
`played on the Dewey Hill monument feature pole are
`temporary. Unlike New Rochelle, the government prop-
`erty is maintained by the City, even if private
`
`
`
`16
`
`individuals pay for the cost of raising the pole pursu-
`ant to their requests. The ways in which New Rochelle’s
`facts differ from the facts in this matter show that gov-
`ernment speech is even more apparent here.
`
`The City has historically permitted the feature
`
`pole to be raised as an anchor, a cross, or a star, but it
`constrained display of the feature pole to only those op-
`tions. The City has never allowed any other party to
`decorate the pole or modify its form. The displays on
`Dewey Hill and the monument feature pole are, and
`have always been, controlled by the City. There is no
`question that the messages conveyed by the feature
`pole are government speech.
`
`
`
`B. PETITIONERS’ ARGUMENTS AGAINST
`A FINDING OF GOVERNMENT SPEECH
`IN THIS CASE ARE UNAVAILING
`Petitioners liken the present case to Capitol
`
`Square Review and Advisory Bd. v. Pinette, 515 U.S.
`753, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995). In Pinette,
`the Ku Klux Klan applied to place a temporary cross
`display on government land in Capitol Square, a large
`public space in Columbus, Ohio. The government de-
`nied the KKK’s application, claiming display of the
`cross would constitute a violation of the Establishment
`Clause. Id. at 758. The Court determined that the gov-
`ernment violated the First Amendment because pro-
`scribing
`the
`cross display was
`content-based
`discrimination of speech in a traditional public forum.
`Id. at 759-761.
`
`
`
`17
`
`Pinette is distinguishable from this case in at least
`
`two respects. First, Pinette featured a traditional pub-
`lic forum. Id. at 759. The inclusion of temporary unat-
`tended displays was standard operating procedure for
`the traditional public forum. In fact, on the same day
`the KKK applied to place the cross in Capitol Square,
`the government approved the placement of an unat-
`tended menorah display. Id. at 758. Second, the cross
`display was unquestionably a private display to be
`placed on government property for a limited period –
`approximately two weeks – in an area used for tempo-
`rary private displays. Thus, there is no question that
`Pinette involved a private display that would be owned,
`placed, and maintained on government land by private
`individuals.
`
`Notwithstanding Petitioners’ argument, Pinette is
`
`markedly dissimilar from the present case. While they
`contend, “WOTW rents the theater and raises the cross
`backdrop for the concert,” the facts show that private
`individuals pay the City to raise its feature pole in con-
`junction with private events. Additionally, it bears re-
`peating that Pinette featured a traditional public
`forum, and the feature pole is obviously not a forum at
`all, let alone the type of forum in which speakers are
`given the greatest constitutional freedoms.
`
`Petitioners err when they conclude that Michigan
`
`summarily rendered a decision for the City based
`on Summum’s articulation, “Permanent monuments
`displayed on public property typically represent
`
`
`
`18
`
`government speech.”1 Summum, 555 U.S. at 470. The
`reality is that the three factors gleaned in Summum
`and Walker support the City. Despite the clear govern-
`ment speech that exists in this case, Petitioners obfus-
`cate the facts and law in an attempt to sal
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