for argument is red river freethinkers versus city of fargo sort of legal manifestation of who the freethinkers are it is the name of the organization the red river freethinkers is it is a it is a corporation or some similar thing where there's a document that is feds i think  and granted summary judgment without any further evidence or issue evidence being presented on a case that issues really been briefed pretty well so i'm probably not going to talk about too much nicer questions about it but the other issue is the main substantive issue and that is granting summary judgment on the merits of the case that the district court did our contention is that what we did we filed this lawsuit asking that the city remove the ten commandments monument after there had been a petition drive to only back up the city had decided to remove the monument and after of the freethinkers had adopted the rationale of the petition drive group which really we presented evidence of a religious motive there and then our problem with the district court ruling and for that matter the dissent is that they really didn't focus at all on the motors of the petition drive group they focused on actions of the city council after the petition was submitted and as the city acknowledges in its brief in a statement of fact section once that petition gathers the requisite number of  has no further legislative function so our position is that the petition drive group really rest of the reins of government from the city council they became the legislators in that instant through the initiated measure process and the focus on the city council minutes from things that happened after the fact is really sort of irrelevant because at that point the city council became their functions really ministerial and not legislative so it was really the actions of  it now before we get lost in the details how long is this monument been there how many years it's been there since nine hundred fifty eight fifty eight so it's fifty six years something like that you have something like that is it is that accurate don't let courts if it's been there forty years or more don't mess with it if it's one that pops up then it's probably suspect and counsel do you think that's what the supreme court's telling us i think and i back in two thousand four dealt with a specific monument and held that it was a passive monument and and did not violate the establishment clause so i mean we can't question that the issue in this case really has always been whether something happened that monument after after the fact it made it something more than just a passive active yeah because there's there's activity going on here to protect the monument and that's really where we're were  focus has to be it's not on the actual monument itself the passive aspect of the monument that's that's been decided you think of the justice briar's opinion it has to become active some way i guess a monument could talk or speak they have such things you know they have so do you think on a monument could become active and i made fun of a little bit but it's half serious i think if the monument started talking or showing a picture moving or something certainly i mean all kinds of facts can make it an act of money but what's really interesting here too is i think the the the city attorney in his recommendations as to what to do he gave you when he was first faced with this whole issue he said you have really fo options here and he said the safest one is to remove the monument so obviously the city was thinking we were considering that there is a there's certainly a religious dimension to it that can come into play based on whatever they did or did not do without monument was justice breyer says you can have a religious message and a secular mass yes and that's his holding right a point and i know that's not an issue as far as we're concerned in this case again you know we're not disputing dis was a pass was declared to be a passive monument at one point and what we're saying is that the monument has changed and there was language in the tsunami case that talked about that a monument can change over time and we're saying about as happened here by the activities of this petition drive and that's the trigger that you can ten because yes i mean i guess you know the way i see my job here is if you get the focus back on this petition drive through because if we  we just focus on what the city council did i'm not sure we can show that they actually did anything incorrect but as i said before i don't think they had authority to do anything after after this petition got a number of signatures so it really was the petition drive  group that we have to look at and there's considerable evidence in the record that there mortars were religious and that was the motivation for this whole petition drive at least we're entitled to a favorable inference as a fact on that it should have been a grant should have been summary judgment in this matter though the city maintain this monument other than permitting it to stand on city hall property i there and do everything else to maintain the ground so other than that i don't know what kind of maintenance there would be required for me not i guess sometimes the arms fall off and things like that right now and there aren't you know this is just it because again what our position is they took control of the city government by by passing this an issue by putting this petition on getting the five thousand signatures they needed they essentially took right took the reins of city governor of the legislative function away from the city council and i you know i bar point is you can't sanitize that by just running it through the city council and having them adopt the the ordinance has drafted well what further step is out there in the universe that would hear this if anything we're asking about the monument be removed i mean that that is the remedy we're asking for is there any language in the recent town of grace opinion that might have an impact on this case it's a little bit different case but i think there is some language in you're talking about if if if if the intent just an intimidate or coerce and i guess our i would argue that that that there district court to decide the following question whether fargo's actions after the district court's decision in tuam believers the city of fargo transformed the ten commandments monument from a permissible display into an impermissible violation of the establishment clause under this court's on bonk decision in a c l u nebraska vs city of platzman of the constitutionality of a passive longstanding monument is evaluated using the supreme court's decision in van or and not the lemon vs kurtzman test the district court correctly followed van orten in plants months and correctly held that the city's actions post twamley did not transform the monument into an unconstitutional one let me start out by addressing some of the questions that arose during the question of appellant first with regard to so soon the city except that at least in theory the message conveyed by a monument may change over time to use the supreme court's phrase from that free establishment clause case and although this court's previous decision regarding standing hypothesized that a government might by a subsequent action transform a formerly permissive display into an impermissible one on remain and the freethinker still needed to convince the district court that a try refract could conclude on this record that this monument was transformed by these intervening events into the type of monument that would fail the tests set forth in van orten and platzman now to the question i believe from judge benton about whether or not there is an example of a way in which a monument original elements was a bible but sometime in the one nine hundred thirty s i was using one thousand nine hundred eighty s the bible was removed from the display then a gentleman named divine ran for judge and part of his campaign was restoring the monument and when he was elected judge divine refurbish the monument he not only put the bible back into the display but he changed it physically further to put a neon border around the bible the refurbishment was accompanied by a ceremony in which several religious leaders spoke about the importance of the bible so they did this in a way that permanently called attention to the christian aspect of the monument we don't have any how long aside from a objection raised over forty years before that decision in two thousand and five there was no objection to this monument prior to the freethinkers lawsuit in this case so i want to address the choice of the test in the application of that test and if time permits i'd like to address whether the district court was required to defer a ruling until later point evidence is there in the record that is the case that there was no contest about putting the monument or what's in there what's in the record here other than the fact is that we are today this issue is without controversy and as part of the question of whether it's good without controversy he identified that one of the plaintiffs in the twamley case had objected to the judge who presided in one nine hundred sixty one when the monument was taken out of storage and put on the mall and had objected over forty years ago to the ten commandments monument and so what i'm relying upon is that on appeal to jude occasion plurality opinion and briars concurrence explicitly rejected application of the lemon test to passive monuments than two months later when sitting on bonk in the platzman the case this court said taking your cue from justice rehnquist's opinion for the court and justice breyer's concurrence in van orden we do not apply the lemon test now that platzman case also declined to follow the approach that was taken in the companion case of mccreary versus a c l u of kentucky decided the same day as van orden that display was not a passive one instead it was an evolving display a third strike so to speak after the first two efforts to put a display in the court house for been declared unconstitutional that reflected the counties expressed desire to display a religious document now the fargo monument continues to satisfy the vendor worton platzman test the city's adoption of the ordinance in july two thousand and seven prohibiting itself from removing the marker or monument that it had been in place in the city for more than forty years and the motion adopted six weeks later to not accept additional monuments on the mall didn't alter the fundamental similarities between the fargo monument in those invent orten and in plants month none of them resulted in any physical change the monument the inscription including the references to the city's first year been renewal project and to the economic future of the city continued to be there it continued therefore to convey a clear secular message concurrently with the ten commandments secondly the monuments history was not a racist by the post wildly events in the physical setting of the monument stayed exactly the same and by the way to go to judge by his question with regard to maintenance also in the twamley case on page nine eighty five judge erickson indicated that although the city maintains the mall area no funds are earmarked for the monuments care and so as your honor may know it's where a number of sidewalks converge and it's the middle of that area they certainly shovel the snow from the sidewalks and don't neglect that part of the mall that happens to be the the island where the where the monument is nevertheless there's no no funds earmarked for the maintenance of the monument i mean you can't expect the city of fargo to have such a labyrinth coning program that they have a nice little box over here for just this one and really sits there and other than needing to you know have the area around the monument be something that is safe for people walk by there wouldn't really need to be much of anything set aside for the maintenance of it in the first place we cutting of the grass at or near by the monument something making its way it would not be a legally significant question under either nothing in the course decision that indicated in that matter that the grass by the monument that was up held in that case was privately maintained so the the question of maintenance is one that has become either relatively insignificant or completely insignificant with regard to passive monuments after those two cases let me also sort of before before you leave i don't see in the twamley facts who owns the monument that judge jackson or no one has ever said who really owns it you know that's often discs i mentioned conspicuously in these cases as to who really owns the thing well it was given by the goals and whoever to somebody now has there ever been a determination over who owns the monument we're willing to assume certainly for purposes of summary judgment that if that since this was clearly a monument that was given to the city th obtained it somehow and then it passed it on to the city of our it was not really the real history as the history of this monument and the venom monument and the platform of monument and many around the country was the organization through funding provided by a legend by cecil b to mill in conjunction with the release of the ten commandments that's not in the record in this case but i believe it's in the record  horton donated these monuments to the city of fargo and to the other cities as well which is another reason why this is on all fours with regard to platzman and been workin you know responding to a maneuver by the plaintiff took a preliminary step toward donating the monument to a location on private property but what's important is that the city's exploratory steps toward moving the monument don't support the conclusion that the monuments message became sectarian or transformed it into an endorsement of religion with regard to the argument we've heard this morning that because this involves an initiative  referendum that somehow the city's role is ministerial that's not even close to the circumstances nor is it an aspect that is a significant factor under the governing cases  will of the majority which i guess under democratic form of government is ok on many things at least to go to the question of exactly how this operates when a initiative is the subject of a petition is then presented to the city commission the city obviously has the option to vote not to adopt it but if the initiative is otherwise compliant with that part of the city charter it can then go on the ballot and in that situation there's nothing precluding the city commissioners from speaking out against it and the record about what actually happened here which really ought to govern the merits of the case as opposed to hypothetical paths that were not taken what actually happened here is that the city commissioners adopted the ordinance as their own and as judge erickson correctly identified none of the opinions expressed by the commissioners were sectarian in any respect and while there is the reference to will of the people there we certainly don't read either the  judge's identification of that or as the commissioners identification of that as an indication that an otherwise unconstitutional monument could become constitutional if it really reflects the will of the people so  wasn't a change to the facts that are legally significant under van orden and the context of the message or the history then it follows from that that the district court correctly concluded that the monument was not transformed no one would be deemed unconstitutional under the circumstances and so to summarize the district court followed this court's mandate this court by the way did not instruct the district court to defer a ruling on the merits this court did not implicitly conclude that there was merit to the plaintiff's claim in fact it very specifically didn't reach the merits the district court correctly determined the city's post twamley actions didn't transform the monument into one that's unconstitutional and so that ruling should be affirmed unless the court has further questions i'll sit down thank you controversy but the fact remains it will for the last ten years there's been significant constant controversy where there's been at least two lawsuits over it and a lot of the city council wrangling that took place during the whole time  thinkers are trying to donate their own monument so there has been controversy with this monument and you know i guess my point is that history did not stop at twamley twomey just declared at that time the minute was a path a monument similar to van orden and what things have happened since that time our position is that it of change the nature of that monument and controversy of stealth can change the nature of if there's controversy now that there wasn't there  before why can't that change the message that's conveyed by the minute because people are bringing to light things that are if someone didn't bring up before or whatever but but that can change it doesn't have to be a physical changes  it can be accepted or taken place around that model and so that's that's our position and there has been a significant change in the nature of that monument and what it represents not a physical change in the monument itself but if the physical change in what it represents because of the actions that have taken place since twamley and so that's what that's why we're  here council mentioned that initiated measure process the city council members are you can speak out against it well that's probably true but they're speaking as individual citizens they're not they have no official not a true legislative function any longer because that has that has been as i said rested away from the right why is it not permissible for a court to view the action the city took counsel took care as a strictly pragmatic decision devoid of religious connotations we just don't want any more trouble that which was permissible before all this started to still permissible because they think in those legal turn it back those are legal terms because as i said before can't sanitize the motives of the petition drive committee by just running it to the city council and having them say well ok we're just going to get rid of the controversy by adopting the ordinance and moving on to something else and that's essentially what the i think that's what they were trying to do here i don't i don't dispute that i think they were trying to say they were trying to get rid of the controversy obviously so but our argument is that you can't again you can't just sanitize what what what the actual legislative act was and more is behind the legislative act i mean it really begs the question what is the legislative intent behind anan and initiated measure and you really have to look at what happened