La Crosse Tribune -- City Registers Legal Victory

January 5, 2005

By JOAN KENT

The U.S. Court of Appeals for the 7th Circuit has ruled that La Crosse's August 2002 sale of the piece of Cameron Park on which the Ten Commandments monument is located to the Eagles is constitutional.

Representatives of the city and residents who want to keep the monument at that location lauded the decision, while opponents spoke of an appeal, possibly to the U.S. Supreme Court.

The challenge to the monument in the park was brought by 22 local plaintiffs and the Freedom From Religion Foundation.

To defuse the group's suit, the city sold a 22-by-20-foot plot of land in the public park to the Fraternal Order of Eagles, which originally donated the monument to the city in 1965. Both the Eagles and the city have put fences around the monument indicating it is on private property. The city also put up a sign disclaiming city endorsement of religion.

The pane of three appeals court judges in Chicago found the sale was not made to advance religion and the city's decision to sell it to the Eagles made practical sense. The monument now sits across the street from the group's La Crosse office, and Eagles members will continue to maintain the site.

The 2-1 decision came on the city and Eagles' appeal of the federal district court order to remove the monument and undo the sale.

The decision says the sale fits the court's analysis of a case from Marshfield, Wis. In that decision, the court upheld the sale of property where a statue of Jesus is located to a private party.

The fence and signs noting the monument site is private property are sufficient for a reasonable passerby to differentiate it from public property, the court said.

Mayor John Medinger, who twice vetoed appeals on the monument location but voted for the land sale, said he could not argue with the decision.

"It is well thought-out and well written," he said. "It says the city realized it was on weak ice if it kept the monument on public property (so it) sold it. One could argue (the sale) is a sham, but the court said a reasonable person would not think it is."

But Medinger noted the court ruled very narrowly on the issue of private property.

"It is a hollow victory," he said. "For the people who wanted to fight the godless atheists, we didn't. The city isn't saying it agrees with the Ten Commandments. The disclaimer (on the fence around the monument) says the city doesn't endorse the religious expression on the monument."

City Attorney Pat Houlihan said he was not surprised at the decision because it focuses narrowly on the sale of the land, and says it doesn't mean that all cities with monuments can sell the land where religious monuments are located.

In addition, he said the location was important because the monument is not at a city hall and not "in your face."

The argument that it was a memorial to the youth who fought the 1965 flood also helped, Houlihan said.

In its decision to sell the land, he said the La Crosse Common Council was seeking a way to follow the constitution.

"The appeals court understood that the action taken by the city to preserve the monument is not only appropriate, but constitutional as well," said Francis J. Manion, senior counsel, American Center for Law and Justice, which presented oral arguments before the appeals court in September on behalf of the Fraternal Order of Eagles.

"The appeals court is correct in determining that the arrangement by which the city sold the monument and the land it sits on to the Eagles a private organization is constitutional and a reasonable solution to keeping the monument in place."

Brad Benrud, spokesperson for Citizens for Liberty, the La Crosse group that petitioned the city to keep the monument in the park, said he is happy with the decision.

"Setting all arguments aside, it came down to whether the sale of the land was a legal and constitutional solution, he said. "Judge Barbara Crabb had ruled it was not, and she did not follow state law regarding sale of property."

City leaders needed to come up with a solution that pleased as many people as possible, and they did so by following the Marshfield case, he said.

An upcoming U.S. Supreme Court decision on other monument cases will answer the first amendment questions, he said.

"The Freedom From Religion Foundation is very surprised that the 7th U.S. Court of Appeals ruled on its Ten Commandments challenge at this time," said Annie Laurie Gaylor, FFRF co-president. "We expected the appeals court to delay its decision pending rulings by the U.S. Supreme Court, which is hearing two appeals regarding Ten Commandments monuments on public land."

The foundation will consider requesting a rehearing by the entire 7th U.S. Court of Appeals, she said. The decision was written by the dissenter in a 7th Circuit case ruling against government display of the Ten Commandments in Illinois. He has not represented the majority views of the Seventh Circuit on this, she said.

The plaintiffs also may seek a U.S. Supreme Court review, said James A. Friedman of La Follette Godfrey & Kahn of Madison, their attorney. They could do both, but the petition for a review by the entire appeals court must be considered first as the plaintiffs have 14 days to do that. They have 90 days to ask for a U.S. Supreme Court review, he said.

The 7th Circuit Court has 15 judges. In deciding whether to hear a case, the court considers whether the decision conflicts with another, which this does not, or if it contains questions of exceptional importance, Friedman said. He said the plaintiffs would seek a rehearing based on the latter.

The plaintiffs could consider asking to join the cases already before the high court, Friedman said. But he said those briefs are mostly filed and La Crosse's case is different from them in that it involves the sale of property.