2:09-cv-14190-GER-PJK Doc # 1 Filed 10/23/09 Pg 1 of 15 Pg ID 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

JOHN SATAWA,
Plaintiff,
v.
BOARD OF COUNTY ROAD COMMISSIONERS OF MACOMB COUNTY (“Macomb Count y Road Commission”); FRAN GI LLETT, individually and in her official capacity as Chairperson, Macomb County Road Commission; ROBERT P. HOEP FNER, individually and in hi s official capacity as County Highway Engineer, Macom b County Road Commission,
Defendants.

Case No.
COMPLAINT
[FIRST AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION & 42 U.S.C. § 1983]

THOMAS MORE LAW CENTER Robert J. Muise, Esq. (P62849) 24 Frank Lloyd Wright Drive P.O. Box 393 Ann Arbor, MI 48106 rmuise@thomasmore.org (734) 827-2001
Counsel for Plaintiff ______________________________________________________________________________
Plaintiff John Satawa (“Plaintiff”), by and through his undersigned co unsel, brings this
Complaint against the above-nam ed Defendants, their employees, agents, and successors in
office, and in support thereof alleges the following upon information and belief:
INTRODUCTION
1. This case seeks to protect and vindicate funda mental constitutional rights. It is a
civil rights action brought under the First and Fourteenth Am endments to the United States

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Constitution and 42 U.S.C. § 1983, challeng ing Defendants’ policy decision to deny Plaintiff the right to engage in protected speech activity in a traditional public forum in the City of Warren, Michigan, which is in Macomb County.
2. Specifically, Plaintiff is challenging Defendants’ denial of his request for a permit to temporarily place a nativ ity scene on a public median in the City of Warren during the Christmas holiday season in a m anner similar to how Plaintiff and/or his relatives have done so since approximately 1945.
3. Defendants denied Plaintiff’s perm it request because Defendants determ ined that Plaintiff’s nativity scene expressed a religious message. Consequently, Defendants’ denial is an unconstitutional, content-based restriction on Plaintiff’s private expression in a traditional public forum.
4. On account of Defe ndants’ discriminatory policy decision, Plaintiff’s longstanding tradition of placing a private n ativity scene in the C ity of W arren during th e Christmas holiday season has come to an abrupt end.
5. The United States Supreme Court has long held that “all public streets are held in the public trust and are properly considered traditional public fora.” Frisby v. Schultz, 487 U.S. 474, 481 (1988). This includes the public streets and associated medians in the City of W arren. Moreover, the United States Sup reme Court has unequivocally stated that its “precedent establishes that p rivate religious speech, far from being a First Am endment orphan, is as fully protected under the Free Speech Clause as secular private expression.” Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995).
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6. Defendants’ discriminatory policy decision violates Plaintiff’s fundamental right to freedom of speech protected by the Free Speech Clause of the First Amendment by imposing a content-based restriction on Plaintiff’s private expression in a traditional public forum.
7. Defendants’ discriminatory policy decision violates the Establishm ent Clause of the First Amendment by disfavoring religion.
8. Defendants’ discriminatory policy decision denies Plaintiff the equal protection of the law guaranteed by the Equal Protection Clau se of the Fourteenth Am endment by denying Plaintiff access to a trad itional public forum for his private speech because Defendants find his message unacceptable.
9. Plaintiff seeks a declarat ion that Defendants have deprived him of his constitutional rights guaranteed by the Fir st and Fourteenth Amendments to the United Sta tes Constitution and 42 U.S.C. § 1983; a preliminary and p ermanent injunction enjoining th e enforcement of Defendants’ con tent-based restriction on Plain tiff’s speech; and an award of nominal damages for the loss of Plai ntiff’s constitutional rights. Plaintiff also seeks an award of reasonable costs of litig ation, including attorneys’ fees and expenses, pursuant to 4 2 U.S.C. § 1988.
JURISDICTION AND VENUE 10. This action arises under the First and Fourte enth Amendments to the United States Constitution and 42 U.S.C. § 1983. Jurisdic tion is conferred on this Court pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3).
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11. Plaintiff’s claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, by Rules 57 and 65 of the Federa l Rules of Civil Procedure, and by the general legal and equitable powers of this Court.
12. Plaintiff’s claim for da mages is made pursuant to 42 U.S.C. § 1983. Plaintiff’s prayer for relief regarding costs, including reasonable attorneys’ fees, is authorized by 42 U.S.C. § 1988.
13. Venue is proper under 28 U.S.C. § 1391(b) because a substantial part of the events or omissions giving rise to Plaintiff’s claims occurred in this district.
PLAINTIFF 14. Plaintiff John Satawa is an adult citizen of the United S tates and a resident of the City of Warren, Michigan. Plain tiff is also a devout Christian and a practicing m ember of the Catholic Church.
DEFENDANTS 15. Defendant Board of County Road Commissioners of Macomb County (hereinafter “Macomb County Road Comm ission”) is a governm ent agency that is part of the executive branch of the Macom b County governm ent. The three-person Macom b County Road Commission, acting as a Board, m akes policy deci sions for the county. The Macomb County Road Commission has the right to sue and be sued in its own name. 16. The Macomb County Road Commission has the authority to issue permits for the temporary construction or placement of private structures, including signs and other displays, in the rights-of-way of county roads, including median strips.
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17. The Macomb County Road Commi ssion is responsible for the pol icy decision to deny Plaintiff a permit to temporarily place a private nativity scene on a median strip of a county road in the City of W arren during the Christ mas holiday season becaus e the road comm ission determined that the nativity scene is religious. The Macom b County Road Commission’s policy decision is a content-based restriction on Plainti ff’s private expression in a traditional public forum.
18. Defendant Fran Gille tt is the C hairperson of the Macom b County Road Commission. As Chairperson, Defendant Gillet is responsible for adoptin g, creating, implementing, and enforcing the policy decisions of the road comm ission, including its policy decision to deny Plaintiff a per mit to temporarily place a nativity scene on a m edian strip of a county road in the City of Warren during th e Christmas holiday season because the road commission determined that the nativity scene is religious. Defendant Gillet is sued individually and in her official capacity.
19. Defendant Robert P. Hoepfner is the County Highway Engineer for the Macom b County Road Commission. As County Highway E ngineer, Defendant Hoepfner is responsible for implementing and enforcing the policy decisions of the road commission, including its policy decision to deny Plaintiff a per mit to temporarily place a nativity scene on a m edian strip of a county road in the City of Warren during th e Christmas holiday season because the road commission determined that the nativity scene is religious. Def endant Hoepfner is su ed individually and in his official capacity.
STATEMENT OF FACTS 20. Plaintiff hereby incorporates by reference all above-stated paragraphs.
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21. In March, 1945, St. Anne’s Parish was es tablished in the Village of W arren, Michigan. During its first year of existence, a set of Christm as statues depicting the nativity scene were donated to the Catholic church. The statues were too large to display on the inside of the church, so some members of the congregation thought it would be a good idea to display the statues and a manger in the center of the village during the Christmas holiday season.
22. The manger for the nativity display was built by Mr. Frank Krause and Mr. Joseph Satawa, Plaintiff’s father, in Mr. Satawa ’s backyard during the cold weather of earl y December. The lumber for the manger was donated by another member of the community.
23. Mr. Jack Eckstein, President of the Village a t the tim e, granted permission to display the nativity scene on the median betw een Mound and Chicago Roads in Warren. As a result, a Christmas tradition was born.
24. During nearly every Christm as holiday season since 1945 the nativity scene was temporarily displayed on the m edian between Mound and Chicago Roads. Mr. Krause and Mr. Joseph Satawa spearheaded the tradition, and they maintained it for many years to follow.
25. The only Christmas holiday season that th e nativity scene was not displayed on the median in W arren was Christm as of 199 6. Due to m ajor construction on Mound and Chicago Roads that year, it was not possible to display the nativity scene. The nativity scene returned to the median in time for the 1997 Christmas season.
26. The original manger was built from lum ber that gave it th e appearance of a log cabin. The manger was approximately 8 feet long by 8 feet wide and 7 feet high at its peak, with built-in legs to allow it to st and approximately 18 inches o ff of the ground. The m anger was built so that it could be assembled and disassembled for storag e since it was only a tem porary
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display. The manger also had a wi ndow across the front for viewing and a s mall window in the rear for an entrance once assembled.
27. In the early 1950’s, new windows were adde d to the m anger so that the nativity scene could be viewed from both Mound and Chicago Roads. The gl ass for the windows was donated by Wasik Funeral Hom e, which at the tim e was located on Dubois Street in Detroit, Michigan.
28. For a couple of years in the early 1950’s, a maintenance crew from the City of Warren would help assemble the m anger. Mr. Krause had passed away, but Mr. Joseph Satawa was still assisting with the assembly and disassembly of the nativity display.
29. In 1964, a new set of Christm as statues was donated by the St. Anne’s Altar Society.
30. On December 30, 1965, Mr. Joseph Satawa passed away, so his son, Plaintiff John Satawa, and his son-in-law, Mr. Lawrence Gr een, continued the tradit ion. Over the years Plaintiff and Mr. Green received ass istance with assembling and disassembling the display from other members of the community, including the Boy Scout troop from St. Anne’s Parish.
31. In the mid-1970’s, a new m anger was needed, so Mr. Joseph Satawa’s nephew, Mr. John Stapleton, who is now deceased, agreed to build a new one us ing the same dimensions as the original manger. The new manger was lighter and easier to assemble and disassemble.
32. After approximately 32 years, it cam e time to refurbish the statues as they were beginning to chip and the paint was fading. In the summ er of 1996, the Christm as statues were completely refurbished with the help of donations provided by local businesses.
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33. In December, 2008, Plain tiff’s longstanding tradition of displaying a private nativity scene on the median between Mound and Ch icago Roads would com e to an abrupt end when the Macomb County Road Commission ordered him to remove the display.
34. On or about Decem ber 11, 2008, Plaintiff received a letter from the Macom b County Road Co mmission signed by Defendant Ho epfner, directing Plai ntiff to “immediately remove” the nativ ity scene. The letter s tated, “It has com e to the attention of the Road Commission of Macomb County that you have instal led a temporary structure in the m edian of Mound Road south of Chicago Road in the City of Warren. A search of our records indicates that no permit was issued for this structure to be placed in the Road Commission right-of-way. This letter serves as you r notice to immediately remove this st ructure from the right-of-way. If the removal does not occur within 30 days of the receipt of this letter, the Road Comm ission forces will remove the structure and bill you for the costs incurred.” A true and accurate copy of this letter is attached to this Complaint and incorporated herein as Exhibit 1.
35. Plaintiff complied with Defendants’ directive and removed the nativity scene. 36. In January, 2009, Plaintiff went to the office of the Macom b County Road Commission to inquire about s eeking and obtaining a perm it for the display of his private nativity scene per the letter he received from Defendant Hoepfner. 37. At the road comm ission office, Plaintiff spoke to a clerk behind the counter and inquired about the perm it process. The clerk asked what th e permit was for and Plaintiff explained the situation regarding his nativity scene d isplay and the letter he received from Defendant Hoepfner. The clerk in dicated to Plaintiff that she was aw are of the s ituation and
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asked him to wait while she called another road commission employee, Ms. Sue Van Steelandt, to assist him.
38. Ms. Van Steelandt, who appeared to be a supervisor or a manager in the Perm it Department, approached the counter and asked Pl aintiff some questions about the nativity scene display, indicating that she had al ready received some information about it. Ms. Van Steelandt requested that Plaintiff provide som e contact information on a permit application, and then directed him to sign and date it. She told Plaintiff that she already had the necessary information to fill in th e rest of the application. Plai ntiff complied with the r equest and s ubmitted the application as directed. Ms. Va n Steelandt informed Plaintiff that he should receive a letter in about 2 to 3 weeks with a response from the road commission.
39. On or about February 7, 2009, Plaintiff received a letter from the Macomb County Road Commission dated February 6, 2009. Enclosed with the letter wa s a blank copy of an application for a perm it for Plaintiff to use to request perm ission to temporarily display his nativity scene in the county “right-of-way.” The letter stated, “Please sign the enclosed application by the ‘X’ a nd return to us in the en closed envelope. Unfortunately, the application that you su bmitted prior was inco mplete.” T he letter was signed, “P ermit Department, Road Commission of Macomb County.” A true and accurate co py of this letter is atta ched to this Complaint and incorporated herein as Exhibit 2.
40. The permit application provided by the Perm it Department of the Macom b County Road Commission is the application that private citizens would use to request a permit to construct or install structures, in cluding temporary structures such as signs or other displays, on public rights-of-way, including medians, in Macomb County.
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41. In fact, pursuant to their authority to permit the private dis play of items on th e rights-of-way in Macomb Count y, Defendants have permitted pr ivate organizations, such as “Friends of the Villag e,” an orga nization that seeks to m aintain the “village” charac ter of Warren, to display various item s, including tw o old wagons, old farm ing equipment, and a bench, on the median between Mound and Chicago Roads.
42. Defendants’ permit application process is the process a private citizen would also use to tem porarily display a private commerc ial sign on a public right-of-way, including a median, within Macomb County.
43. Consequently, Defendants’ perm it application process is a policy or procedure whereby Defendants allow private citizens to co nstruct or install structures, including temporary structures such as signs or di splays, on public rights-of-way, including medians, within Macomb County.
44. Defendants established a perm it application process so as to ensure that an y structures that are installed or constructed by private citizens on public rights-of-ways, including medians, within Macomb County are installed or constructed in a m anner that does not obstruct pedestrian or vehicular traffic or pose any public safety concerns.
45. In order to ensure that Plaintiff’s renewed permit application was not rejected for being “incomplete,” on or about F ebruary 12, 2009, Plaintiff subm itted an application that set forth the details of his proposed nativity scen e display, including photographs to show its size and precise location and to dem onstrate that th e display would not obstruct any vehicular or pedestrian traffic or create any public safety issues. Indeed, the nativity display, or one similar to it, had been displayed in this location without any public safe ty issues for approxim ately 63
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years. A true and accurate c opy of Plaintiff’s perm it application, which includes true and
accurate copies of photographs of the proposed display, is attached to this Complaint and
incorporated herein as Exhibit 3.
46. In his permit application, Plaintiff stated the following:
Applicant, Mr. John Satawa, requests permission to temporarily display a Nativity Scene in the median of Mound Road south of Chicago Road in the City of Warren for a period beginning on Nove mber 28, 2009 and ending on January 9, 2010. Applicant’s display is in tended to be an exercise of his private religious speech, which is fully protected under the Free Speech Clause of the First Amendment.
The proposed Nativity Scene is approximately 8’ x 8’ x 8’ at th e peak, and it will be displayed in a m anner similar to how it has been displayed at this location for the past 60 years. The enclosed photogra phs, which were taken of the display in January 2009, illustrate the nature, size, and location of the proposed display. As demonstrated by the photographs, there are no obstructions to vehicular or pedestrian traffic or any other safety concerns caused by the display.
The proposed display will be ligh ted by two 150W floodlights and two 100W light bulbs. There is an electrical outlet available at the median location that has been used in previous years to provide power for the display. Applicant will pay for all electrical costs associated with his display. Additionally, applicant will be responsible for putting up and tak ing down the display. No assistan ce from government employees will be required.
Please advise if any insurance will be required, the reasons for said insurance, and the amount. Applicant is willing to pay all reasonable costs associated with his temporary display. Applicant is also willing to post a sign at the display which states clearly that it is his private disp lay and not the display of Macomb County, the City of W arren, or any other govern ment entity. A pplicant is willing to coordinate and cooperate with Macomb County on the content, size, and location of this sign.
47. By submitting his perm it application, Pl aintiff was requesting permission to
display a private nativity scen e on a public right-of-way—the m edian of Mound Road south of
Chicago Road in the City of Warren—similar to how other private citizen s request and receive
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permission to construct or install temporary st ructures on other public rights-of-way, including medians, within Macomb County.
48. On March 9, 2009, Defendants issued a “for mal denial” of Plaintiff’s application for a perm it “to erect a nativity scene in the Mound Road right of way.” Defendants denied Plaintiff his right to d isplay his private na tivity scene not because the proposed display obstructed vehicular or pedestrian traffic or created any public safety issues, but b ecause the nativity scene “displays a religious message,” which is a content- based restriction on Plaintiff’s private expression. A true and accu rate copy of Defendants’ “formal denial” is attached to this Complaint and incorporated herein as Exhibit 4.
49. There are no governm ent or other public buildings within the vicinity of the median where Plaintiff would like to display his private nativity scene, and th is is the sam e location where the nati vity scene has been displayed in W arren without com plaint for approximately 63 years.
FIRST CLAIM FOR RELIEF (First Amendment—Free Speech Clause) 50. Plaintiff hereby incorporates by reference all above-stated paragraphs. 51. By reason of the aforem entioned policy, practice, custom, acts, and om issions, engaged in under color of state law, Defendants have imposed a content-based restriction on Plaintiff’s private speech in a tr aditional public forum in violation of the Free Speech Clause of the First Amendment as applied to the states and their political subdivisions under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
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52. As a direct and proxim ate result of De fendants’ violation of the Free Speech Clause of the First Amendment, Plaintiff has suffered irreparable harm, including the loss of his constitutional rights, entitling him to declaratory and injunctive relief and nominal damages.
SECOND CLAIM FOR RELIEF (First Amendment—Establishment Clause) 53. Plaintiff hereby incorporates by reference all above-stated paragraphs. 54. By reason of the aforem entioned policy, practice, custom, acts, and om issions, engaged in under color of state la w, Defendants have violated th e Establishment Clause of the First Amendment to th e United States Constitution as applied to the states and their political subdivisions under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. 55. Defendants’ policy, practice, and/or custom of prohibiting the display of Plaintiff’s private nativ ity scene lacks a valid secular purpose, has the prim ary effect of inhibiting religion, and creates an excessive entanglement with religion in violation of the United States Constitution. 56. Defendants’ policy, practice, and/or custom of prohibiting the display of Plaintiff’s private nativity scene conveys an impermissible, government-sponsored message of disapproval of and hostility toward the Christian religion and our Nation’s religious heritage. As a result, Defendants’ policy, practice, and/or custom sends a clear message to Plaintiff that he is an outsider, not a full m ember of the politic al community and an accom panying message that those who disfavor the Christian religion and our Nation’s religious heritage are insiders, favored members of the political community in violation of the United States Constitution.
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57. As a direct and proxim ate result of Defendants’ viol ation of the Estab lishment Clause of the First Amendment, Plaintiff has suffered irreparable harm, including the loss of his constitutional rights, entitling him to declaratory and injunctive relief and nominal damages.
THIRD CLAIM FOR RELIEF (Fourteenth Amendment—Equal Protection) 58. Plaintiff hereby incorporates by reference all above-stated paragraphs. 59. By reason of the aforem entioned policy, practice, custom, acts, and om issions, engaged in under color of state law, Defendants ha ve unconstitutionally deprived Plaintiff of the equal protection of the law guaranteed under the Fourteenth Amendment to the U nited States Constitution and 42 U.S.C. § 1983, in that Defenda nts, through their acts, policies, practices, and/or customs, prevented Plaintiff from expressing a private m essage in a public forum based on the content of his speech, th ereby denying the use of this forum to those whose m essages Defendants find unacceptable. 60. As a direct and proxim ate result of Defe ndants’ violation of the Equal Protection Clause of the Fourteenth Amendment, Plaintiff has suffered irreparable harm, including the loss of his cons titutional rights, entitling him to d eclaratory and injun ctive relief and nominal damages.
PRAYER FOR RELIEF WHEREFORE, Plaintiff asks this Court: A) to declare that Defendants vio lated Plaintiff’s rights protec ted by th e First and Fourteenth Amendments to the United States Constitution as set forth in this Complaint;
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B) to enjoin Defendants’ policy decision to deny Plaintif f a perm it to te mporarily display a nativity scene in a tr aditional public forum in the City of Warren during the 2009 Christmas holiday season and during future C hristmas holiday seasons as se t forth in th is Complaint;
C) to award Plaintiff nominal damages for the loss of his constitutional rights; D) to award Plaintiff his reasonable attorney fees, costs, and expenses pursuant to 42 U.S.C. § 1988 and other applicable law; E) to grant such other and further relief as this Court should find just and proper.
Respectfully submitted, THOMAS MORE LAW CENTER /s/ Robert J. Muise Robert J. Muise, Esq. (P62849)
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Exhibit 1 Exhibit 2 Exhibit 3 Exhibit 4

INDEX OF EXHIBITS Letter from Board of County Ro ad Commissioners of Macomb County to Plaintiff John Satawa dated Dece mber 11, 2008, ordering Plaintiff to remove his nativity scene Letter from Board of County Ro ad Commissioners of Macomb County to Plaintiff John Satawa dated February 6, 2009, regarding Plaintiff’s permit application Permit application to display a nativity scene on a county “right-of-way” in the City of Warren, Michigan submitted to the Road Comm ission of Macomb County by Plaintiff John Satawa on February 12, 2009 Letter of Board of County Road Commissioners of Macomb County dated March 9, 2009, which served as the “f ormal denial” of Plaintiff John Satawa’s permit application to display a nativity scene on a county “rightof-way” in the City of Warren, Michigan

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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN SATAWA,

Plaintiff,

No. 09-CV-14190-DT

vs.

Hon. Gerald E. Rosen

BOARD OF COUNTY ROAD COMMISSIONERS OF MACOMB COUNTY, et al.,

Defendants. _________________________________/

OPINION AND ORDER ADDRESSING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

At a session of said Court, held in

the U.S. Courthouse, Detroit, Michigan

on

December 28, 2009

PRESENT: Honorable Gerald E. Rosen Chief Judge, United States District Court

I. INTRODUCTION

Plaintiff John Satawa has filed a Motion for a Temporary Restraining

Order/Preliminary Injunction to enjoin the Macomb County Road Commission from

enforcing its decision to deny Plaintiff a permit to place a crèche and Nativity display

during the Christmas season (from November 28, 2009 to January 9, 2010) on the median

in the middle of Mound Road south of Chicago Road in Warren, Michigan. Plaintiff

argues that the Road Commission’s decision violates his First Amendment right to engage

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in private, religious expression in a traditional public forum. The Road Commission counters that the Mound Road median is not a traditional public forum. The Commission further argues that, even if the median is a traditional public forum, and its decision to deny the permit does regulate protected speech, its decision serves a compelling state interest -- the Commission’s statutory interest to keep public roads and rights of way reasonably safe for public vehicular traffic -- and was narrowly drawn to achieve that end. The Commission then argues that to make an exception for the Plaintiff’s Nativity scene would violate the Establishment Clause of the First Amendment.
The Court heard oral argument on Plaintiff’s motion on December 9, 2009. Following this hearing, on December 11, 2009, the Court, with the parties and their counsel, conducted a lengthy site visit to view the precise location of Mr. Satawa’s proposed display and to itself drive the relevant roadways and intersections. The Court thereafter met with the parties and counsel, outlined its specific questions and concerns, and requested supplemental filings from the parties, including stipulated facts so far as the parties could agree. The parties complied with the Court’s request, and the last of these supplemental materials was submitted on December 21, 2009.
Having reviewed and considered the parties’ briefs and supporting evidence and the oral arguments of counsel, and having had the opportunity to reflect on its observations during the site visit, the Court is now prepared to rule on this matter. This Opinion and Order sets forth the Court’s ruling.
II. PERTINENT FACTS 2

THE PARTIES Defendant Board of County Road Commissioners of Macomb County is a
corporate body formed in accordance with Michigan statutory law which may sue and be sued, and may hold title to land acquired in the manner authorized by law. See M.C.L. § 224.9. The Board consists of three commissioners. Defendant Fran Gillett has been a Road Commissioner since 2000 and has been the Chairperson of the Board since January 2, 2008. Defendant Robert Hoepfner is the County Highway Engineer for Macomb County. Mr. Hoepfner is responsible for the supervision of road building and maintenance operations in the county under the direction of the Board. He has served in this capacity since 1995.
Plaintiff John Satawa is a resident of the City of Warren, a devout Christian, and a practicing member of the Catholic Church. HISTORY OF MR. SATAWA’S NATIVITY DISPLAY
According to Mr. Satawa, a Nativity scene has been displayed on the public median of Mound Road at Chicago Road since 1945, when Warren was just a village. He states that in 1945, a set of Christmas statues was donated to St. Anne’s Catholic Church in Warren,1 but the figures were too large to display inside the church. Therefore, some members of the congregation, including Mr. Satawa’s father, decided that it would be a good idea to display the statues and a manger in the center of the Village during the
1 St. Anne’s Church is located at 32000 Mound Road. [See 12/21/09 Stipulation regarding the testimony of Rev. Alberto P. Bondy, ¶1.]
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holiday season. (The 8' x 8' x8' manger for the display was built by Mr. Satawa’s father and another church member, Frank Krause, with donated lumber.) According to Plaintiff, Jack Eckstein, who was the president of the Village at the time, granted permission to display the Nativity scene on the median of Mound Road at Chicago Road and the display has been set up there every holiday season (except two)2 since then.
Plaintiff states that the City of Warren has been aware of the display throughout the ensuing 63 years.3 According to Plaintiff, in the late 1970s he spoke with Thomas Marrocco, Warren’s City Attorney at the time, about the Nativity display. Plaintiff states that Mr. Marrocco told him it was permissible for him to continue displaying his Nativity scene on the public median in Warren. Plaintiff also has submitted evidence of letters he sent to the Warren Police Department in 1995 and 1996 informing the department about the Nativity scene display and advising the department that if there was any need to contact anyone about the display, to contact him or his brother-in-law, Larry Green, whom Plaintiff states has helped him set up the display every year since his father passed away.4 (After sending the last letter in 1995, Plaintiff claims that he received a call from a
2 Due to major construction on Mound Road, the display was not set up in 1996 and in 2008, Plaintiff had been ordered by the Road Commission to take the crèche down because no permit had been obtained for its temporary display.
3 The Road Commission states that, because it does not have the financial resources to employ inspectors to drive around the county and inspect its 1,658 miles of County roads, it had no knowledge of the display until last December (2008) when it received the citizen’s complaint giving rise to this action.
4 These letters stated as follows:
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police officer telling him that the department was well aware of the Nativity scene and its presence on the median and that, therefore, it was not necessary for Plaintiff to send any letters in the future.)
According to Plaintiff, in 1996, an electrical outlet was installed by the Road Commission near the location where the Nativity scene was traditionally located.

December 9, 1994

Shift Commander Warren Police Department

On Sunday, December 3, 1994, we erected the Nativity Scene at Chicago Road and Mound. (this has been done for the past 48 years). It shall remain in place until Saturday, January 07. 1995.

If there is a need to contact someone regarding this scene, please call one of the following:

***

John F. Satawa

Larry Green

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December 4, 1995

Shift Commander Warren Police Department

On Sunday, December 03, 1995, we erected the Nativity Scene at Chicago Road and Mound. (This has been done for the past 49 years) It shall remain in place until Sunday, January 07, 1996.

If there is a need to contact someone regarding this scene, please call on of the following: John Satawa or Larry Green. We would also like to be notified if the lights go out for some reason.

Thank you in advance for your consideration. 5

Although Plaintiff asserted that this outlet was placed there for the specific purpose of making electrical power available to light his Nativity display, according to the Road Commission, this outlet was actually installed to provide power for the sprinkler system which waters the grass in the median. THE FORM OF THE DISPLAY
Plaintiff describes in detail in his Brief the various modifications made to the display over time -- such as replacement of windows and refurbishing of the statutes -but the dimensions of the display have not changed very much. As displayed last year, the crèche itself is log cabin-like structure that stands 9 ½ feet high and 8' x 8' in width and depth. (Although the physical structure of the manger is 8' x 8' x 8', the actual height of the display is 9 ½ feet as it sits on top of an 18-inch high raised platform.) There are windows which were added in the 1950s on both the front and back of the structure so that the statues displayed within can be seen from both Mound and Chicago Roads. The display is illuminated at night. The crèche itself has a sign on it saying “A Blessed Christmas, St. Anne Parish.” Inside the glass-enclosed crèche is another sign reading “In Memory of Joseph and Rose Satawa.” THE SITE OF THE DISPLAY
As indicated, Mr. Satawa seeks to erect his crèche and Nativity scene on the median of Mound Road just south of Chicago Road. [See 12/17/09 Stipulation of Facts, ¶ 2 and Ex. C.] Mound Road is a certified Macomb County Road that is currently four lanes north bound, and four lanes south bound. Id. ¶ 6. The road supports over 82,600
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cars a day and has a posted speed limit of 50 mph. Id. The road is divided by a center median which is segmented by turning lanes and intersections. The particular median on which Plaintiff seeks to place his crèche is 60 feet wide. Id. ¶ 3. Chicago Road is a twolane road which runs east and west and intersects Mound Road just north of the proposed crèche site. The Mound Road - Chicago Road intersection is controlled by traffic signals in all directions on both sides of the intersection.
More specifically, Mr. Satawa’s proposed site for his display on the median is approximately 25 feet from the curb, facing Chicago Road to the north. See id., Ex. C. In front of the site is a sidewalk which adjoins the crosswalks on the north and south bound lanes of Mound Road. Id. Pedestrian stop lights facing east and west are located on an electrical pole on the northeast corner of the median. See Plaintiff’s Exhs. P-1 through P4. There is a stand of pine trees on the median immediately behind the proposed site. These trees are centered between the north and south bound roadways and are collectively 29 feet, 4 inches wide. 12/17/09 Stipulation, ¶ 2. As observed by the Court, these trees are less dense in foliage on the lower branches than on the upper branches, permitting visibility, albeit somewhat diffused, of the north-bound Mound Road traffic if one is traveling east-bound on Chicago Road through the signal-controlled intersection. See e.g., Plaintiff’s Ex. P-1.
On this same median island behind the stand of trees are various unattended pieces of old farming equipment and wagons. See Plaintiff’s Motion Ex. E. These items are displayed by the “Friends of the Village,” a private organization of local residents seeking
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to maintain the “village” character of Warren. See id. There are also two benches for public seating -- one a wooden park bench and one a smaller concrete bench -- on this portion of the median.
On the median just north of Chicago Road, there is a small gazebo and courtyard erected by the Village of Warren Historical Commission. This permanent display was installed in 1982 when the State of Michigan Historical Society erected a Historical Site Marker honoring the former Village of Warren. See Hoepfner Affidavit, Defendant’s Ex. B ¶ 33 and Exhs. F-H.] The Road Commission permitted the permanent installation but on condition that the City of Warren indemnify and hold the Commission harmless through a Warren City Resolution accepting the liability and providing indemnification. [Hoepfner Aff., ¶ 34.] The City of Warren currently insures this historic site with a $5 million insurance policy. Id. ¶ 37; Defendant’s Ex. I. The Court’s observation was that the gazebo and courtyard are situated and structured in such a way that visibility of southbound Mound Road traffic is not obscured if one is traveling west-bound on Chicago Road through the signal-controlled intersection. REMOVAL OF THE NATIVITY DISPLAY IN DECEMBER 2008
In December 2008, the Road Commissioners received a letter, ostensibly written “on behalf of a concerned Macomb County resident” objecting to the Nativity display on the ground that it violated the fundamental principle of separation of church and state. The “concerned Macomb County resident” is not identified in this letter, which was written on the letterhead of the “Freedom from Religion Foundation” and signed by a
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Foundation “Staff Attorney.” The letter complained that placement of the crèche on
county property and illuminated by the use of electricity being provided by the
municipality, constituted a constitutionally impermissible government endorsement of
and entanglement with a particular religious message. [See Defendants’ Ex. E.]5
5 The letter, dated December 10, 2008, stated as follows:
Dear Commissioners:
I am writing on behalf of a concerned Macomb county resident, who objects to the erection and maintenance of a nativity scene on County property. Freedom From Religion Foundation (FFRF) is a national nonprofit organization based in Madison, Wisconsin with over 13,000 members across the country. Our purpose is to protect the fundamental constitutional principle of separation of church and state.
It is our information and understanding that a nativity scene has been erected in the median at the intersection of Mound Road and Chicago Road in the city of Warren. Our complainant informs us there is a sign inside the glass-enclosed crèche that reads “In Memory of Joseph and Rose Satawa.” Additionally, there is a wooden sign that states “A blessed Christmas, St. Anne Parish.”
It is unlawful for the Road Commission of Macomb County to maintain, erect, or host a holiday display that consists solely of a nativity scene, thus singling out, showing preference for, and endorsing one religion. The Supreme Court has ruled it is impermissible to place a nativity scene as the sole focus of a display on government property. See Allegheny v. ACLU of Pittsburgh, 492 U.S. 1989; Lynch v. Donnelly, 465 U.S. 668 (1983).
In County of Allegheny v. ACLU of Pittsburgh, 492 U.S. 573 (1989), the Supreme Court held that a county government’s crèche displayed in the county courthouse was an unconstitutional endorsement of religion. The Court stated,
“Lynch v. Donnelly, confirms, and in no way repudiates, the longstanding constitutional principle that government may not engage in a practice that has the effect of promoting or endorsing religious beliefs. The display of the crèche in the county courthouse has this unconstitutional effect. Id. at 621.
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The Court further determined that the placement of the crèche on the Grand Staircase of the county courthouse contributed to its illegality because “no viewer could reasonably think it occupies this location without support and approval of the government.” Id. at 599600. Moreover, the Court found that the nativity scene “sen[t] an unmistakable message that ‘the county] supports and promotes the Christian praise to God that is the crèche’s religious message.” Id. at 601.
It is irrefutable that the crèche is a religious, Christian symbol. See Lynch v. Donnelly, 465 U.S. 668, 711 (1984) (Brennan, J. Dissenting) (stating that the crèche is a “recreation of an event that lies at the heart of the Christian faith”). Displaying an inherently Christian message at a busy intersection on County-owned property unmistakably sends the message that Macomb County endorsed the religious beliefs embodied in the display. When the County displays this manger scene, which depicts the legendary birth of Jesus Christ, it places the imprimatur of the Macomb County government behind the Christian religious doctrine. This excludes citizens who are not Christians -- Jews, Native American religion practitioners, animists, etc., as well as the significant and growing portion of the U.S. population that is not religious at all [14% of adults], including complainants and taxpayers in your county.
The constitutional concerns are not alleviated simply because the crèche is erected and/or owned by St. Anne Parish. The Supreme Court stated in Allegheny,
“[t]he fact that the crèche bears a sign disclosing its ownership by a Roman Catholic organization does not alter this conclusion. On the contrary, the sign simply demonstrates that the government is endorsing the religious message of that organization, rather than communicating a message of its own. But the Establishment Clause does not limit only the religious content of the government’s own communications. It also prohibits the government’s support and promotion of religious communications by religious organizations.” Id.
There is further government entanglement because the illumination of the display is presumably provided by the city.
There are ample private and church grounds where religious displays may be freely placed, including, presumably, St. Anne’s Parish, where this display clearly belongs. Once the government enters into the religion business, conferring endorsement and preference for one religion over others, it strikes a blow at religious liberty, forcing taxpayers of all faiths and of no religion to support a particular expression of worship.
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As a result of this complaint, the Road Commission dispatched an employee to the intersection of Mound and Chicago Roads to locate the complained of crèche. [Hoepfner Aff. ¶ 18.] Based upon the observation of the size and strength of the crèche, as well as its location in the median close to the intersection, it was determined that the crèche posed a significant danger to public safety, and that, as a result, the Commission could not allow this encroachment on the Mound Road median. Id. ¶ 21.
The next day, December 11, 2008, County Highway Engineer Hoepfner sent Mr. Satawa a letter directing him to remove the Nativity display. Id. ¶ 22. This letter stated:
Dear Mr. Satawa: It has come to the attention of the Road Commission of Macomb County that you have installed a temporary structure in the median of Mound Road south of Chicago Road in the City of Warren. A search of our records indicates that no permit was issued for this structure to be placed in the Road Commission right of way. This letter serves as your notice to immediately remove the structure from the right of way. If removal does not occur within 30 days of the receipt of
We ask that you immediately phone St. Anne’s Parish to have them remove the display to private property. May we hear from you immediately about the steps you are taking to remedy this violation? Sincerely, /s/ Rebecca S. Kratz Staff Attorney
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this letter, the Road Commission forces will remove the structure and bill you for the costs incurred.
If you have any questions regarding this matter, please feel free to contact me.
Sincerely,
/s/ Robert P. Hoepfner, P.E. County Highway Engineer
[See Plaintiff’s Ex. C.]
Plaintiff complied with this directive and removed the Nativity scene.
In January 2009, Plaintiff went to the Road Commission office and filled out a
permit application for the display of the Nativity scene. On February 7, 2009, Plaintiff
received a letter from the Road Commission with a blank copy of a permit application
enclosed. The letter indicated that the application Plaintiff had previously submitted in
January was “incomplete.” [See Plaintiff’s Ex. D.] Thereafter, Plaintiff, this time
through counsel, re-submitted his application setting forth the details of his proposed
Nativity display and included with the application photographs showing the size and
precise location of the display from various angles, purportedly to show that the display
would not obstruct any vehicular or pedestrian traffic or create any public safety issues.
In his permit application Plaintiff stated as follows:
Applicant, Mr. John Satawa, requests permission to temporarily display a Nativity Scene in the median of Mound Road south of Chicago Road in the City of Warren for a period beginning on November 28, 2009 and ending on January 9, 2010. Applicant’s display is intended to be an exercise of his private religious speech, which is fully protected under the Free Speech
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Clause of the First Amendment.
The proposed Nativity Scene is approximately 8' x 8' x 8' at the peak, and it will be displayed in a manner similar to how it has been displayed at this location for the past 60 years. The enclosed photographs which were taken of the display in January 2009, illustrate the nature, size, and location of the proposed display. As demonstrated by the photographs, there are no obstructions to vehicular or pedestrian traffic or any other safety concerns caused by the display.
The proposed display will be lighted by two 150W floodlights and two 100W light bulbs. There is an electrical outlet available at the median location that has been used in previous years to provide power for the display. Applicant will pay for all electrical costs associated with his display. Additionally, applicant will be responsible for putting up and taking down the display. No assistance from government employees will be required.
Please advise if any insurance will be required, the reasons for said insurance, and the amount. Applicant is willing to pay all reasonable costs associated with his temporary display. Applicant is also willing to post a sign at the display which clearly states that it is his private display and not the display of Macomb County, the City of Warren, or any other government entity. Applicant is willing to coordinate and cooperate with Macomb County on the content, size and location of the sign.
[Plaintiff’s Ex. I (emphasis in original).]
In the cover letter which accompanied Plaintiff’s application, Plaintiff requested
that “[s]hould the permit application be denied, we respectfully request that you notify us
of this in writing, stating the reason(s) for the denial.” Id.
The Commission addressed Mr. Satawa’s permit application during its March 6,
2009 meeting. Hoepfner Aff., ¶ 26. The Commission authorized Hoepfner to deny the
permit based on Commission policies and safety concerns. Id.
On March 9, 2009, Mr. Hoepfner sent Plaintiff’s attorney a letter formally denying
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Plaintiff’s application for a permit for his display. The denial letter stated as follows:
Dear Mr. Muise:
Please allow this letter to serve as the Board of County Road Commissioners for the County of Macomb’s formal denial of the January 7, 2009 Application for Permit submitted by John Satawa to erect a nativity scene in the Mound Road right of way. Given the religious nature of your nativity scene, the Road Commission of Macomb County as a governmental agency must weigh whether or not the approval of such a permit would be deemed a violation of the First Amendment of the United States Constitution.
A statute or practice that touches on religion, if it [is] to be permissible under the establishment of religion clause of the Constitution’s First Amendment, (1) must have a secular purpose, (2) must neither advance nor inhibit religion in its principal or primary effect, and (3) must not foster an excessive entanglement of government with religion. In Allegheny v. ACLU of Pittsburgh, 492 U.S. 573 (1989), the U.S. Supreme Court held that “there is no doubt, of course, that the crèche (nativity scene) itself is capable of communicating a religious message.”
Since the nativity scene Mr. Satawa desires to place in the right of way clearly displays a religious message, this would be a violation of the Establishment Clause of the First Amendment. “Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from ‘making any adherence to a religion relevant in any way to a person’s standing in the political community.’” Allegheny, at 594.
The Road Commission of Macomb County cannot permit you to display this nativity scene in the Road Commission’s right of way. This undoubtedly would be interpreted as our endorsement of religion, in violation of the Establishment Clause of the U.S. Constitution.
Thank you for your attention to this matter. Please do not hesitate to contact me with an questions or concerns.
Sincerely, /s/ Robert P. Hoepfner, P.E.
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County Highway Engineer Defendant Hoepfner states that since Mr. Satawa’s permit application expressly addressed his claims of religious expression in the median, the Commission’s denial letter addressed this aspect of the application. Id. ¶ 31. Hoepfner states that since the Commission had already determined when it sent Mr. Satawa the letter dated December 11, 2008 that the structure was a significant danger to public safety and reached the same conclusion when it considered his application in 2009, he viewed Satawa’s “freedom of religious expression” application as seeking an exception to the Commission’s general policy of not allowing private installations in the medians of major highways and primary roads, and so, addressed only that issue in his denial letter. Id. ¶¶ 30-31. On October 23, 2009, Plaintiff instituted this Section 1983 action, and on October 30, 2009, Plaintiff filed the instant Motion for Temporary Restraining Order/Preliminary Injunction.
ANALYSIS A. STANDARDS FOR PRELIMINARY INJUNCTIVE RELIEF
In deciding whether a plaintiff is entitled to a preliminary injunction, the court is to utilize the traditional four-factor test for injunctive relief:
(1) The likelihood of plaintiff’s success on the merits; and (2) Whether the injunction will save the plaintiff from irreparable
injury; (3) Whether the injunction will harm others; and (4) Whether the public interest will be served by the injunction. Sandison v. Michigan High School Athletic Association, Inc., 64 F.3d 1026, 1030 (6th
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Cir. 1995). See also, Superior Consulting Company, Inc., v. Walling, supra, 851 F. Supp. 839, 846 (E.D. Mich. 1994). These factors should be balanced and are not considered prerequisites that must be met. In re Eagle-Picher Indus., Inc., 963 F.2d 855, 859 (6th Cir. 1992). “These factors simply guide the discretion of the court; they are not meant to be rigid and unbending requirements.” Id.
Before turning to its analysis of these factors, the Court observes that the factual underlayment of this case -- most of which is stipulated by the parties -- makes this one that is not only unique to its facts, but is also an extremely close case at a number of critical intersections of fact and law. The analysis which follows is, therefore, narrow and reflects the uniqueness and closeness of these factual and legal issues. Finally, the Court wishes to thank the parties and counsel for the manner in which they have assisted the Court, and worked with each other, in presenting this challenging case which is so obviously important to them and their community. This is one of those relatively rare cases which the Court wishes it could fashion a decision that would fully accommodate the interests and objectives of both sides, as they are all laudable. Unfortunately, it cannot. 1. LIKELIHOOD OF SUCCESS ON THE MERITS PLAINTIFF’S FREEDOM OF SPEECH CLAIM
Plaintiff contends that the Road Commission’s denial of his application to display his Nativity scene in the Mound Road median violated his First Amendment right to freedom of speech. Defendants do not dispute that the display of a Nativity scene is an
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act of constitutionally protected religious expression. See Allegheny v. ACLU of
Pittsburgh, 492 U.S. 573, 598, 109 S.Ct. 3086, 3103 (1989). The Defendants do,
however, contend that the Constitution does not protect Plaintiff’s attempt to display his
Nativity scene in the Mound Road median.
As noted, Defendants argue in opposing Plaintiffs’ motion for injunctive relief that
(1) the median in the center of Mound Road is not a traditional public forum and (2) even
if it is, the Defendants had a compelling state interest, to-wit, its statutory responsibility to
keep Mound Road reasonably safe for public vehicular travel and to avoid damage or
danger caused by installations in the right-of-way that create a hazardous condition for
the motoring public.6 This interest, Defendants argue, is sufficient to satisfy the strict
6 Defendants also cursorily argue in a few brief paragraphs of their initial opposition brief that to allow Plaintiff to erect his temporary Nativity display would give the appearance of the County’s endorsement of religion, and thus, constitute a violation of the Establishment Clause.
However, avoidance of an Establishment Clause violation cannot serve as justification for denying a permit to erect a religious display in a public forum. This issue was addressed by the Supreme Court in Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 115 S.Ct. 2440 (1995), a case out of the Sixth Circuit.
In Pinette, the plaintiffs sought a permit to erect a cross for Christmas on Capitol Square in Columbus, Ohio. Capitol Square has long been used for public gatherings and cultural festivals and during the holiday season, the square has been decorated with lights, a Christmas tree and a menorah. The Capitol Square Review and Advisory Board, which has, by Ohio statute, the sole authority to regulate uses in the square, denied the plaintiffs’ permit application “upon the advice of counsel, in a good faith attempt to comply with the Ohio and the United States Constitutions.” See Pinette v. Capitol Square Rev. and Adv. Bd., 30 F.3d 675, 676 (6th Cir. 1994). Specifically, the Board contended that the permit had been denied to avoid a violation of the Establishment Clause because the location of this distinctly religious display in front of the Ohio Statehouse and on Capitol Square
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scrutiny given to content-based restrictions in public fora.
FORUM ANALYSIS
Is the Median in the Center of Mound Road a “Traditional Public Forum”?
“It is undeniable, of course, that speech which is constitutionally protected against
state suppression is not thereby accorded a guaranteed forum on all property owned by
the State.” Capitol Square Review and Advisory Bd. v. Pinette, supra, 515 U.S. at 761,
would lead a reasonable observer to conclude that the State of Ohio endorsed Christianity. The District Court, the Sixth Circuit and the Supreme Court all rejected that argument. As the Supreme Court explained:
The State did not sponsor respondents’ expression, the expression was made on government property that had been opened to the public for speech, and permission was requested through the same application process and on the same terms required of other private groups.
* * *
Our cases have. . . equated “endorsement” with “promotion” or “favoritism.” We find it peculiar to say that government “promotes” or “favors” a religious display by giving it the same access to a public forum that all other displays enjoy. * * * Where we have tested for endorsement of religion, the subject of the test was either expression by the government itself, or else government action alleged to discriminate in favor of private religious expression or activity. the test petitioners propose, which would attribute to a neutrally behaving government private religious expression, has no antecedent in our jurisprudence. . . .
515 U.S. at 763-64, 115 S.Ct. at 2447-48 (citations omitted; emphasis in original).
If the median is a non-public forum, however, “the interest of the State in avoiding an Establishment Clause violation may be a compelling state interest justifying an abridgment of free speech.” Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 394, 113 S.Ct. 2141, 2148 (1993). See also Ashby v. Isle of Wight County School Bd., 354 F. Supp. 2d 616, 629 (E.D. Va. 2004).
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115 S.Ct. at 2446, (citing Postal Service v. Council of Greenburgh Civic Ass’ns., 453 U.S. 114, 129, 101 S.Ct. 2676, 2685 (1981)); Perry Ed. Ass’n. v. Perry Local Educators’ Ass’n., 460 U.S. 37, 44, 103 S.Ct. 948, 954 (1983). The right to use government property for one’s private expression depends upon whether the property has by law or tradition been given the status of a public forum. Pinette, supra; Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 802-803, 105 S.Ct. 3439, 3449 (1985).
For forum analysis purposes, government property has been divided into three categories: traditional public fora, designated (or “limited”) public fora, and non-public fora. See Cornelius v. NAACP Legal Def. & Educ. Fund, supra, 473 U.S. at 800, 105 S.Ct. at 3449. Public fora generally are those “places which by long tradition or by government fiat have been devoted to assembly and debate.” Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. at 45, 103 S.Ct. at 954. A second category of public fora consists of “public property which the State has opened for use by the public as a place for expressive activity.” Id., 460 U.S. at 45, 103 S.Ct. at 955. See, e.g., Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269 (1981) (university meeting facilities); City of Madison Joint School Dist. No. 8 v. Wisconsin Empl. Relations Comm’n, 429 U.S. 167, 97 S.Ct. 421 (1976) (school board meeting); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239 (1975) (municipal theatre). This type of public forum has been called a “limited public forum” or a “public forum by designation.” San Diego Committee Against Registration and the Draft (CARD) v. Governing Bd. of Grossmont
19

Union High School Dist., 790 F.2d 1471, 1475 (9th Cir.1986). “A limited public forum may, depending upon its nature and the nature of the state’s actions, be open to the general public for the discussion of all topics, or there may be limitations on the groups allowed to use the forums or the topics that can be discussed.” Id.
Streets and parks are traditional public fora. The Supreme Court “long ago recognized that members of the public retain strong free speech rights when they venture into public streets and parks, which ‘have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’” Pleasant Grove City, Utah v. Summum, ___ U.S. ___, 129 S.Ct. 1125, 1131 (2009) (quoting Perry Ed. Ass’n. v. Perry Local Educators’ Ass’n., 460 U.S. at 45, 103 S.Ct. 948 (quoting Hague v. Committee for Industrial Organization, 307 U.S. 496, 515, 59 S.Ct. 954 (1939))). In order to preserve this freedom, government entities are strictly limited in their ability to regulate private speech in such “traditional public fora.” Pleasant Grove, supra; Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. at 800, 105 S.Ct. 3439. Although reasonable time, place, and manner restrictions are allowed, see Perry Ed. Assn., supra, at 45, any restriction based on the content of the speech must satisfy strict scrutiny, that is, the restriction must be narrowly tailored to serve a compelling government interest, see Cornelius, supra, at 800, 105 S.Ct. 3439, and restrictions based on viewpoint are prohibited, see Carey v. Brown, 447 U.S. 455, 463, 100 S.Ct. 2286
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(1980).7
While Defendants acknowledge that, generally, streets may constitute traditional
public fora, they argue that a median in the center of a major traffic artery while the road
is in use by vehicular traffic is not a “traditional public forum.” Unfortunately, the cases
are not uniform, and this particular median, given its unique characteristics, does not find
a comfortable fit in any case law -- much less applicable precedent -- which the parties
have cited or which the Court has been able to find on its own.
For example, in addressing a challenge to an anti-picketing ordinance in Frisby v.
Schultz, 487 U.S. 474, 108 S.Ct. 2495 (1988), the Supreme Court rejected the defendants’
argument that narrow streets in a residential neighborhood should not be deemed to be a
“traditional public forum,” stating very broadly:
[O]ur decisions identifying public streets and sidewalks as traditional public fora are not accidental invocations of a “cliché.” but recognition that wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public. No particularized inquiry into the precise nature of a specific street is necessary; all public streets are held in the public trust and are properly considered public fora. Accordingly, the streets of Brookfield are traditional public fora. The residential character of those streets may well inform the application of the relevant test, but it does not lead to a different test; the antipicketing ordinance must be judged against the stringent standards we have established for restrictions on speech in traditional public fora[.]
7 These same standards apply to limited public fora. Perry Educational Ass’n, 460 U.S. at 45, 103 S.Ct. at 955. Plaintiff, however, does not contend that the Mound Road median is a “limited public forum.” Rather, his position is that it is a “traditional public forum.”
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487 U.S. at 480-81, 108 S.Ct. at 2500 (citations and some internal punctuation omitted; emphasis added).
However, the speech at issue in Frisby was picketing on a public interest issue (the plaintiffs wanted to picket on the street outside an abortion doctor’s house with antiabortion signs), and as the Supreme Court noted, “uninhibited, robust and wide-open debate on public issues” strikes “at the core of the First Amendment,” 487 U.S. at 479, 108 S.Ct. at 2499, and public-issue picketing traditionally takes place on public streets.
On the other hand, a similar argument for limiting the “public forum” classification of public streets was made by the defendants, and recognized by the Ninth Circuit, in ACORN v. City of Phoenix, 798 F.2d 1260 (9th Cir. 1986). In that case, the plaintiffs challenged a Phoenix city ordinance which prohibited soliciting contributions from occupants of vehicles stopped at intersections. ACORN argued broadly that the city streets constituted a traditional public forum, particularly suited for public expression, which could not be closed to First Amendment activities. The defendants disputed plaintiffs’ premise. While the court acknowledged that public streets were “the prototypical example of a public forum” when a party would seek access to the streets for a parade or other demonstration, it refused to concede that a street might have such a public forum character at all times:
To conclude that the streets may generally be categorized as traditional public fora may not require us to also conclude that the streets at all times and under all circumstances are susceptible to characterization as a perpetual public forum uniquely available for free expression. The district court ruled, “Clearly, by long tradition or government fiat’ such areas
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[streets] are not designated as forums for public communication while in use by vehicular traffic.” 605 F. Supp. at 871.
As a practical matter, there are indeed substantial differences in nature between a street, kept open to motorized vehicle traffic and a sidewalk or public park. A pedestrian ordinarily has an entitlement to be present upon the sidewalk or on the grounds of a park and thus is generally free at all times to engage in expression and public discourse at such locations. This is obviously not true of streets continually filled with pulsing traffic. Consequently, more so than with sidewalks or parks, courts have recognized a greater governmental interest in regulating the use of city streets. [Citation omitted.]
798 F.2d at 1266-67.
The ACORN court, however, found it unnecessary to decide whether public streets
are “perpetual public fora” because it found the ordinance justified even under the more
rigorous standards applied to regulation of expression in traditional public fora. Id. at
1267. Consequently, the court declined to express any opinion as to the validity of the
defendants’ argument that streets are not public fora while simultaneously in use by motor
vehicles. Id. Defendants here have relied upon the ACORN decision but, unfortunately,
neglected to state in their brief that the court never decided the issue.
By the same token, Plaintiffs repeatedly and erroneously included “medians” in
citing to Supreme Court cases stating that streets and sidewalks are traditional public fora,
though medians are not mentioned in any of those decisions. The only case cited by
Plaintiffs in which medians are even mentioned is Goedert v. City of Ferndale, 596 F.
Supp. 2d 1027, 1032 (E.D. Mich. 2008) (Hood, J.), the “honk if you are opposed to the
war” case. In that case, the intersection of 9 Mile and Woodward in the City of Ferndale
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was used every Monday for five years for a “vigil” by demonstrators protesting the war in
Iraq who would display signs reading “Honk for Peace,” or “Honk if you want Bush out,”
and cars passing through the intersection would honk their horns in response. The weekly
vigil proceeded without incident for several years until one weekend, the demonstration
got out of hand. “Demonstrators [who] were on every corner of the intersection, the
sidewalks, and alongside the median [became] unruly and were causing a safety hazard
by leaning into traffic with their signs.” 596 F. Supp. 2d at 1029. (Emphasis added.)
Police concluded that the honking of vehicle horns was a distraction that could lead to
safety problems. Id. They, therefore, began enforcing Ferndale’s disturbing of the peace
ordinance and another city ordinance which incorporated a state statute that prohibited
honking of horns except to warn of a traffic hazzard. Id. After the plaintiffs were
ticketed for violating the city ordinance, they filed suit claiming violation of their right to
freedom of speech.
In analyzing the plaintiffs’ free speech claim in Goedert, the court found the
intersection of Woodward and 9 Mile to be a traditional public forum:
Woodward and 9 Mile is in the heart of downtown Ferndale. (Pl. Mot. Summ. Judgment, Ex. 14, p. 50.) It is one of the busiest intersections in Ferndale, second only to Woodward and Eight Mile in the volume of traffic. (Pl. Mot. Summ. Judgment, Ex. 9, pp. 80:16-81:1.) There is typically significant traffic noise during the time of the Vigil. The intersection of 9 Mile and Woodward is properly characterized as a public forum for a First Amendment analysis.
596 F. Supp. 2d at 1032.
However, there is no discussion in the case of public use of any median in the
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roadway. The only mention of the word “median” in the opinion was, in passing, the
court noted that on one weekend, demonstrators “were on every corner of the intersection,
the sidewalks, and alongside the median,” which could well mean that they were actually
in the street.
A closer case to the instant case was presented in Snowden v. Town of Bay Harbor
Islands, Florida, 358 F. Supp. 2d 1178 (S.D. Fla. 2004). There, the plaintiff requested
permission to place a Nativity scene on a grassy median dividing a state road. When the
Town of Bay Harbor denied her request, she filed suit seeking declaratory and injunctive
relief. In deciding the plaintiff’s request for a preliminary injunction, the court undertook
a forum analysis and concluded that the median on which plaintiff sought to erect her
display was not a traditional public forum, despite the plaintiff’s characterization of it as
such. The court reasoned:
It is not a traditional park or area where people congregate, gather, and traditionally have a free exchange of ideas and speakers, with appropriate accommodations facilitating such use, such as public restrooms and public parking. This grassy area is more appropriately what Defendants have represented it to be, a rather small green space abutting two roadways, with no buffers such as sidewalks for protection or apparent invitation to the public. It does not present the physical characteristics of a park beyond the presence of grass, and is not associated with or near a seat of legislative or executive power. Cf. Warren v. Fairfax County, 196 F.3d 186 (4th Cir.1999). Although technically open to the public, it does not function as a traditional or “quintessential” public forum. See, e.g., [United States v.] Kokinda, 497 U.S. [720,] 728-29, 110 S.Ct. 3115 (“[T]he dissent is simply incorrect in asserting that every public sidewalk is a public forum. Post, at 3129-3130. As we recognized in [United States v.] Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983) ], the location and purpose of a publicly owned sidewalk is critical to determining whether such a sidewalk constitutes a public forum.”).
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358 F. Supp. at 1193.
Therefore, the lesser “rational basis” standard of scrutiny applied to the
municipality’s denial of Snowden’s request.8
By contrast, in Warren v. Fairfax County, 196 F.3d 186 (4th Cir. 1999) (en banc),
the Court found that the Center Island mall in front of the Fairfax County Government
Center Complex was more of a park than a median as argued by the defendants (and as
found by the majority of the original appellate panel), and therefore, was a public forum.
Sidewalks circumnavigated the mall and ran through a central landscaped strip. The area of the mall abutting the Government Center Complex features a circular brick promenade complemented by additional landscaping. Surrounding the mall is the street which leads to the Government Center Complex. The entire mall is outdoors, unenclosed, publicly accessible, and in fact open to the public.
Id. at 188. From these features, the Court found that
The Center Island mall has the objective use and purpose of a traditional public forum. Its objective use is as a place of open public access, which is eminently compatible with expressive activity.
Finally the Center Island mall is part of a class of property which by
8 For non-public fora, the government’s decision must be reasonable and “not an effort to suppress expression merely because public officials oppose the speaker’s view.” Perry Ed. Ass’n. v. Perry Local Educators’ Ass’n., 460 U.S. 37, 46, 103 S.Ct. 948, 955 (1983). Indeed, “[c]ontrol over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Cornelius v. NAACP Legal Def. & Educ. Fund, 475 U.S. 788, 806, 105 S.Ct. 3439, 3451 (1985). In Snowden, the court ultimately found that the municipality’s denial could not pass muster under this lesser standard of scrutiny because it had previously allowed other religious displays (i.e., a display of a menorah during Chanukah) on this property and therefore, it could not be said that the denial of permission to erect a crèche was “viewpoint neutral.”
26

history and tradition has been open and used for expressive activity. The Center Island mall is part of the outdoor grounds of a seat of legislative and/or executive power.
Id. at 189-90.9
9 Adopting the original appellate panel’s dissenting opinion, the Fairfax County en banc court, however, stated in dicta, that even if it were to agree with the original panel’s majority determination that the Center Island mall was only a landscaped median, it would disagree with the majority’s conclusion that median strips should not be viewed as traditional public fora, stating:
Neither the district court nor the majority cited to any authority supporting their novel attempt to carve out an exception from the public forum doctrine for property that, quite literally, lies at the heart of the Supreme Court’s quintessential example of the traditional public forum. If streets, sidewalks and parks are traditional public fora, then a court bears a heavy burden in explaining why property which is merely a combination of all three from the standpoint of physical characteristics, objective uses and purposes, and traditional and historic treatment, is not. Median strips, like sidewalks, are integral parts of the public thoroughfares that constitute the traditional public fora. In many cases, median strips house sidewalks. If a person who is rightfully on a street or sidewalk left open to the public “carries with him there as elsewhere the constitutional right to express his views in an orderly fashion,” Jamison v. Texas, 318 U.S. 413, 416, 63 S.Ct. 669, 87 L.Ed. 869 (1943), I do not see how the person loses that right merely by stepping onto the median. Nor does the general public. Consistent with the median strip's function as part of the public thoroughfares traditionally open to the public for expressive activities, people have been engaging in such activity on median strips for as long as median strips have been in existence. Newspaper criers, local civic fundraisers, members of political campaigns, religious groups, and people with a message have often chosen median strips, with their ready access to the bustle of undifferentiated humanity, as their preferred launching point for expressive conduct.
196 F.3d at 196 (footnote omitted.)
The en banc court, however, excepted from its “public forum” view of medians median strips on interstates and similarly cordoned off expressways, which by their nature are not generally accessible to pedestrians. The Center
27

As these cases reflect, there are few clear lines of demarcation in cases in which streets, medians and vehicular traffic coincide to create a potential conflict between free speech interests and public safety concerns. And, this case presents even more conflicting considerations -- and fewer clear lines of demarcation -- than most, as the median at issue here bears compelling indicia of both a public and a non-public forum. On the pubic forum side, the median has one sidewalk used by pedestrians in crossing the median, and there are a couple of benches for public seating placed with the “Village of Warren” farm instruments display behind the stand of pine trees. And, at 60 feet in width, it is wider than most medians.
On the non-public forum side, it is a median in the center of a major eight-lane roadway with traffic at times reaching relatively high rates of speed, and with a busy intersection. Surely, such a median cannot be a place intended for bringing citizens together to exchange ideas, which, of course, is at the core of the “public forum” designation. A traditional public forum is a public place where, by long history, the public has gathered to speak, debate, and exchange ideas. See Perry Educ. Ass’n, 460 U.S. at 45, 103 S.Ct. 948. It is those “‘[p]ublic places’ historically associated with free exercise of expressive activities, such as streets, sidewalks and parks, that are considered,
Island mall is not such a median strip as evidenced by the sidewalks around its circumference. Id. at n. 9.
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without more, to be ‘public forums.’” United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702 (1983); see also Frisby v. Schultz, supra (holding that residential streets are traditional public fora). Such places are considered traditional public fora because they “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens and discussing public questions.” Perry, 460 U.S. at 45. Indeed, the Supreme Court “has rejected the view that traditional public forum status extends beyond its historical confines.” Arkansas Educ. Television Ass’n v. Forbes, 523 U.S. 666, 668, 118 S.Ct. 1633, 1641 (1998).
It cannot be said that the median on which Plaintiff wants to set up his display is used for public discourse and debate such as Capitol Square is in Columbus, Ohio or Calder Plaza in Grand Rapids, Michigan, see Americans United for Separation of Church and State v. City of Grand Rapids, 980 F.2d 1538 (6th Cir. 1992) (private organization’s display of Menorah on a plaza used for all forms of speech and assemblage). Nor is it property that the City of Warren or Macomb County has dedicated to commemorating the “people, ideals, and events that compose [the city’s or county’s] identity” with numerous permanent monuments and historical markers, as was the case in Van Orden v. Perry, 545 U.S. 677 (2005) (upholding display of the Ten Commandments as one of 17 monuments on the 22-acre park surrounding the Texas State Capitol).
When public property is not characterized as a public forum, the government may reserve the forum for its intended purposes. Perry Educational Ass’n, supra, 460 U.S. at
29

46, 103 S.Ct, at 955; Adderley v. Florida, 385 U.S. 39. 47, 87 S.Ct. 242, 247 (1966) (“The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.”)
As the Ninth Circuit ultimately concluded in the ACORN case, however, it is unnecessary for the Court here to decide whether or not a median in the center of a heavily traveled road is a public forum because the Road Commission’s decision is justified even under the strict scrutiny standards applied to the regulation of speech in traditional public fora. THE COUNTY HAS A COMPELLING STATE INTEREST IN PROHIBITING THE PLACEMENT OF THE CRÈCHE IN THE MEDIAN.
As indicated, speakers and speech may be excluded from a public forum when “the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest.” Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., supra, 473 U.S. at 800, 105 S.Ct. 3439.
The Road Commission maintains that it had a compelling state interest in denying Plaintiff’s application for a permit for his temporary Nativity display, that interest being to keep the county roads safe for vehicular travel.10 In furtherance of this interest, the
10 As indicated above, Defendants did not originally give Plaintiff traffic safety as a reason for denying his permit. Defendants have presented evidence, however, that they had already decided that Plaintiff’s crèche posed a traffic safety hazard at the time they sent him the denial letter but only addressed in the letter the violation of the First Amendment’s Establishment Clause they believed would result if they granted the permit because Plaintiff had focused on his First Amendment rights in submitting his application.
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Commission’s policy is to prohibit the installation of private structures and encroachments in the medians of primary roads and major highways. Mound Road is a primary Road, with eight lanes, where 82,600 cars travel daily at speeds near or in excess of 50 miles per hour. Because of the size and strength of Mr. Satawa’s crèche structure and its proposed location near the intersection of Mound Road and Chicago Road, Defendants state that the crèche posed a significant safety hazard. “Plaintiff’s structure itself, regardless of content, could be struck by a vehicle traveling down Mound Road or in the intersection and cause serious damage not only to a traveling vehicle but also any passengers in a vehicle.” As the Court observed, however, this “danger of being struck by a vehicle” justification is purely speculative and, in fact, based upon the Court’s own observations from driving both Mound and Chicago Roads in both directions and transgressing the intersection from all directions, the Court can safely and readily conclude that -- with one singular, but potentially dangerous exception -- most of the traffic safety argument proffered by Defendants are either very remote or highly speculative, or both.
However, again based upon its own observations, the Court does find that Defendants’ additional justification -- that the structure and display could impede site lines at the intersection -- has some merit. As Mr. Hoepfner explained, “Roadside control is necessary to improve highway safety, to maintain or improve site line distances and expedite the free flow of traffic.” [Affidavit of Robert Hoepfner, ¶ 6, Defendants’ Ex. B.] The Michigan Road Design Manual, which is the Commission’s regulatory guide, also
31

states that “a flat, smooth, unobstructed area adjacent to the driving lanes. . . significantly improves highway safety.” [Michigan Road Design Manual at Reg. 7.01.11, Defendants’ Ex. C.]
Based upon the Court’s personal observation of the proposed site of the crèche without the crèche present, and having viewed photographs of the site lines when the crèche was on the site, the Court finds that the crèche could obstruct the view of motorists driving east-bound on Chicago Road of traffic traveling north bound on Mound Road causing a potentially significant safety risk where persons traveling east on Chicago are racing to make it through the traffic light at the intersection and attempting to determine if there is on-coming traffic from their right on north-bound Mound Road. As noted, the Court drove and observed the site without the crèche erected, and while the Court acknowledges that the stand of trees might inhibit a driver’s sight line to a limited extent, because the foliage on the lower branches of the trees -- particularly those closest to the northeast corner of the site -- is not very dense, a driver still can see reasonably well cars traveling northbound on Mound Road with sufficient time before they get to the intersection to make a determination and avoid a potential collision. The crèche, however, placed on its proposed site, would significantly obstruct that view and, thereby, create a potential, but serious safety hazard.11.
11 The Court further notes, again based upon its observations in driving the intersection, that the gazebo and exhibit on the north side of Chicago Road are structured and located in such a way that there is no obstruction of view from any direction that would pose a similar safety hazard, or any other.
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“As a general matter, it is clear that a State’s interest in protecting the ‘safety and convenience’ of persons using a public forum is a valid governmental objective.” Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 650, 101 S.Ct. 2559 (1981). This is clearly true even where, as here, the safety hazard exists only in limited circumstances, as the potential for even one tragic accident at a busy intersection clearly constitutes a compelling interest which the State must address.
Further supporting this and extending this legitimate concern, Defendants correctly argue that if it allowed the installation of Mr. Satawa’s private structure in this median, the Commission would have to allow all private installations of all shapes and sizes in medians all over Macomb County thereby creating safety hazards all over the county. Courts may consider the cumulative impact if many others decided to engage in similar conduct. See Heffron, 452 U.S. at 652-54, 101 S.Ct. at 2566-67; see also ACORN v. City of Phoenix, supra, 798 F.2d 1270.
Finally, although not specifically relied upon in this portion of the Court’s analysis, Plaintiff is not left without any comparable viable site for his expression, since, as discussed below, St. Anne’s Church, just a few hundred yards from the proposed median site, will permit a prominent display of the crèche (with lighting) on Mound Road and with virtually no public safety implications, as it has in past years when it was not possible for Plaintiff to display the crèche in this median.
Based upon the foregoing, the Court finds that Plaintiff has not shown a strong likelihood of success on the merits of his Free Speech claim.
33

PLAINTIFF’S ESTABLISHMENT CLAUSE CLAIM Neither Plaintiff nor Defendants have discussed Plaintiff’s likelihood of success on
Count II of his Complaint which is Plaintiff’s claim of violation of the Establishment Clause. However, the Court finds that it is not likely that Plaintiff will succeed with this claim.
The Establishment Clause of the First Amendment to the U.S. Constitution states: “Congress shall make no law respecting an establishment of religion. . . .” Neutrality is the fundamental requirement of the Establishment Clause, which prohibits the government from either endorsing a particular religion or promoting religion generally. See Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 703, 114 S.Ct. 2481(1994) (“[A] principle at the heart of the Establishment Clause [is] that government should not prefer one religion to another, or religion to irreligion.”); Larson v. Valente, 456 U.S. 228, 244, 102 S.Ct. 1673, 1683 (1982) (“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”); Gillette v. United States, 401 U.S. 437, 450, 91 S.Ct. 828, 836 (1971) (“[T]he Establishment Clause prohibits government from abandoning secular purposes to favor the adherents of any sect or religious organization.”)
In Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105 (1971), the Supreme Court articulated a three-prong test to determine whether a statute or governmental action
34

violates the Establishment Clause.12 In order to pass muster under the Lemon test, the government’s action must satisfy all of these three criteria: (1) the government’s action must have a secular purpose; (2) its principal and primary effect must be one that neither advances nor inhibits religion; and (3) it must not foster excessive government entanglement with religion. Lemon, 403 U.S. at 612-13, 91 S.Ct. at 2111. The first and second prongs have since been reformulated. After McCreary County v. ACLU, 545 U.S. 844, 125 S.Ct. 2722 (2005), the first is now a “predominant purpose” test. McCreary County, 125 S.Ct. at 2733; id. at 2757 (Scalia, J., dissenting) (“[T]he [McCreary County majority] replaces Lemon’s requirement that the government have ‘a secular . . . purpose’ with the heightened requirement that the secular purpose ‘predominate’ over any purpose to advance religion.” (quoting Lemon, 403 U.S. at 612, 91 S.Ct. 2105)).
As indicated above, Defendants have stated that the purpose of their policy and, in particular, their denial of Plaintiff’s application for a permit to erect his Nativity scene is/was a secular one -- to maintain traffic safety. But, even Defendants’ avoidance of an an Establishment Clause violation is a “secular purpose.” “Actions taken to avoid potential Establishment Clause violations have a secular purpose under the Lemon test.”
12 Although the Supreme Court has articulated other tests in certain particular contexts (e.g., the “endorsement” test, see Allegheny v. ACLU, 492 U.S. 573 (1989) and the “coercion” test, see Lee v. Weisman, 505 U.S. 577 (1992)), the Sixth Circuit expressly has determined that, other than in aid-to-education cases, the rule that this Circuit will adhere to is the traditional Lemon analysis. See ACLU v. Mercer County, 432 F.3d 624, 635 (6th Cir. 2005); Hansen v. Ann Arbor Public Schools, 293 F. Supp.2d 780, 804 n.28 (E.D. Mich. 2003)
35

See Stratechuk v. Bd. of Ed., South Maplewood School Dist., 587 F.3d 597 (3rd Cir. 2009); Vasquez v. Los Angeles County, 487 F.3d 1246, 1255 (9th Cir.), cert. denied, 552 U.S. 1062 (2007); Roberts v. Madigan, 921 F.2d 1047, 1054 (10th Cir.1990), cert. denied, 505 U.S. 1218 (1992).
Turning to the Lemon test’s effect prong, the “principal or primary effect” of the challenged policy or practice, this prong asks “whether, irrespective of government’s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval” of religion. Lynch v. Donnelly, supra, 465 U.S. at 690 (O’Connor, J. concurring). “While an adjudication of [a policy’s] effect must take into account the perspective of one who is neither Christian nor Jewish, as well as of those who adhere to neither of these religions, the constitutionality of its effect must also be judged according to the standard of a ‘reasonable observer.’” County of Allegheny v. ACLU, 492 U.S. at 620. A reasonable observer here would not find that the Road Commission’s policy of not permitting the placement of temporary structures in the medians of major roadways conveys a message of endorsement or disapproval of religion.
The final prong of the Lemon test considers whether the challenged policy or practice “foster[s] an excessive government entanglement with religion.” No such entanglement can be found in this case.
For the foregoing reasons, for purposes of Plaintiff’s request for preliminary injunctive relief, the “likelihood of success” prong does not tip in favor of Plaintiff. 2. IRREPARABLE HARM
36

Plaintiff argues that he will be irreparably harmed without the preliminary injunctive relief requested and relies upon the Supreme Court’s finding that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); Newsome v. Norris, 888 F.2d 371, 378 (6th Cir. 1989), (citing Elrod) (“The Supreme Court has unequivocally admonished that even minimal infringement upon First Amendment values constitutes irreparable injury sufficient to justify injunctive relief.”)
However, as indicated above, not only is it unlikely that Plaintiff can show a violation of his First Amendment rights, but also, as Defendants note, it is difficult to see how Plaintiff would be “irreparably harmed” by not being able to put up his display on the median, since has he stipulated, he will not be entirely precluded from putting up his display, and his only limitation is that he cannot put it up on the median. As noted, Father Bondy has stated that Plaintiff can erect his crèche on the property of St. Anne’s Catholic Church just a few hundred feet away on Mound Road and that he can illuminate the crèche all night. [See 12/21/09 Stipulation.] Although this location is perhaps not as visible by Chicago Road traffic, or south-bound Mound Road traffic, it would be even more prominently visible to North-bound Mound Road traffic, and, therefore, this tradeoff dictates that the Court find Plaintiff is not irreparably harmed. 3. HARM TO OTHERS/IMPACT OF A PRELIMINARY INJUNCTION ON THE
PUBLIC Finally, the public’s interest in allowing the Road Commission to regulate its
37

roadways in the safest way it sees fit cannot be denied. Therefore, to grant Plaintiff the injunctive relief he requests would, in this instance, effectively override the Commission’s authority and allow Plaintiff, by placing his Nativity scene on the proposed median site, to create the potential traffic hazard described by the Court, which could prove dangerous to others. Clearly, this would not be in the public interest.
CONCLUSION Although this case presents very close issues of fact and law, a number of which are unique and peculiar to the circumstances of this case, the Court finds for the reasons it has set forth herein, that on balance, it must deny Plaintiff’s Motion for a Temporary Injunction.13 For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s Motion for a Temporary Injunction is DENIED. IT IS FURTHER ORDERED that within 14 days of the date of this Order, the parties shall SHOW CAUSE, if any there be, why this Order should not be converted to a final Judgment on the merits pursuant to Fed. R. Civ. P. 65(a)(2). SO ORDERED.
13 Although the parties and the Court have dealt with this as a motion for temporary injunction, in view of the Court’s factual findings and its own visit to the site, the parties -- and particularly Plaintiff -- should show cause as to whether this decision and Order should not be converted to a final Judgment on the merits pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure.
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s/Gerald E. Rosen Chief Judge, United States District Court Dated: December 28, 2009 I hereby certify that a copy of the foregoing document was served upon counsel of record on December 28, 2009, by electronic and/or ordinary mail. s/Ruth Brissaud Case Manager
39

 
 2:09-cv-14190-GER-PJK Doc # 29 Filed 02/03/10 Pg 1 of 2 Pg ID 349

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN SATAWA,

Plaintiff,

No. 09-CV-14190-DT

vs.

Hon. Gerald E. Rosen

BOARD OF COUNTY ROAD COMMISSIONERS OF MACOMB COUNTY, et al.,

Defendants. _________________________________/

ORDER VACATING SHOW CAUSE ORDER

At a session of said Court, held in

the U.S. Courthouse, Detroit, Michigan

on

February 3, 2010

PRESENT: Honorable Gerald E. Rosen Chief Judge, United States District Court

On December 28, 2009, this Court entered an Opinion and Order denying

Plaintiff’s Motion for a Preliminary Injunction. In that Opinion and Order, the Court also

directed the parties to show cause in writing within 14 days why the order denying the

preliminary injunction should not be converted to a final judgment on the merits pursuant

to Fed. R. Civ. P. 65(a)(2).

Plaintiff timely responded to the Show Cause Order and Defendants replied. Both

parties thereafter sur-replied and filed supplemental briefs.

Having reviewed and considered the parties’ briefs, the Court has concluded that

sufficient good cause has been shown for not converting the ruling on Plaintiff’s Motion

2:09-cv-14190-GER-PJK Doc # 29 Filed 02/03/10 Pg 2 of 2 Pg ID 350
for Preliminary Injunction into a final judgment on the merits. Therefore, IT IS HEREBY ORDERED that the Court’s show cause order is VACATED. A
Scheduling Order will be issued setting further deadlines in this case. SO ORDERED.
s/Gerald E. Rosen Chief Judge, United States District Court Dated: February 3, 2010 I hereby certify that a copy of the foregoing document was served upon counsel of record on February 3, 2010, by electronic and/or ordinary mail. s/Ruth Brissaud Case Manager

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN SATAWA,

Plaintiff,

No. 09-CV-14190-DT

vs.

Hon. Gerald E. Rosen

BOARD OF COUNTY ROAD COMMISSIONERS OF MACOMB COUNTY, et al.,

Defendants. _________________________________/

OPINION AND ORDER REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT

At a session of said Court, held in

the U.S. Courthouse, Detroit, Michigan

on

April 19, 2011

PRESENT: Honorable Gerald E. Rosen Chief Judge, United States District Court

I. INTRODUCTION

On October 23, 2009, Plaintiff John Satawa filed a Complaint in this Court seeking

declaratory and injunctive relief and nominal damages predicated upon the alleged violation of

his First Amendment right to free speech (Count I); violation of the Establishment Clause of the

First Amendment (Count II); and violation of the Equal Protection Clause of the Fourteenth

Amendment (Count III). All of Plaintiff’s claims arise out of the Macomb County Road

Commission’s decision to deny Plaintiff a permit to place a crèche and Nativity display during

the 2009 Christmas season (from November 28, 2009 to January 9, 2010) on the median in the

1

middle of Mound Road south of Chicago Road in Warren, Michigan. Plaintiff’s Complaint was followed by a Motion for Temporary Restraining Order and Preliminary Injunction seeking preliminary injunctive relief based upon Plaintiff’s argument that the Road Commission’s decision violated his First Amendment right to engage in private, religious expression in a traditional public forum. The Road Commission countered that the Mound Road median is not a traditional public forum. The Commission further argued that, even if the median is a traditional public forum, and its decision to deny the permit does regulate protected speech, its decision serves a compelling state interest -- the Commission’s statutory interest to keep public roads and rights of way reasonably safe for public vehicular traffic -- and was narrowly drawn to achieve that end. The Commission further argued that to make an exception for the Plaintiff’s Nativity scene would violate the Establishment Clause of the First Amendment.
After hearing oral argument on Plaintiff’s motion, the Court, with the parties and their counsel, conducted a lengthy site visit to view the precise location of Mr. Satawa’s proposed display and to itself drive the relevant roadways and intersections. The Court thereafter met with the parties and counsel, outlined its specific questions and concerns, and requested supplemental filings from the parties.
On December 28, 2009, the Court entered an Opinion and Order denying Plaintiff’s Motion for Temporary Injunction. In that Opinion and Order, with regard to the merits of Plaintiff’s First Amendment claim, the Court found it unnecessary to decide whether or not the Mound Road median was a “public forum” because it determined that the Defendants had demonstrated a compelling interest for denying Plaintiff the permit to place the Nativity display on the median -- to-wit, keeping county roads safe for vehicular traffic -- thereby satisfying even
2

the strict scrutiny standards applied to the regulation of speech in traditional public fora. See Satawa v. Bd. of County Road Com’rs of Macomb County, 687 F. Supp. 2d 682, 699-700 (E.D. Mich. 2009). In this regard, although the Court found that Defendants’ argument that there was a danger of the structure being struck by a vehicle traveling down Mound Road or in the intersection to be “purely speculative,” it found merit in Defendants’ alternative justification -that the structure and display could impede sight lines. Specifically, the Court found that “the crèche could obstruct the view of motorists driving east-bound on Chicago Road of traffic traveling north bound on Mound Road causing a potentially significant safety risk where persons traveling east on Chicago are racing to make it through the traffic light at the intersection and attempting to determine if there is on-coming traffic from their right on north-bound Mound Road.” Id. at 700. The Court determined that avoiding this potential danger was a valid governmental objective, “even where, as here, the safety hazard exists only in limited circumstances, as the potential for even one tragic accident at a busy intersection clearly constitutes a compelling interest which the State must address.” Id.
The Court also determined that Plaintiff had failed to show a likelihood of success on his claim of violation of the Establishment Clause as the County’s actions satisfied all three of the requisite elements of the test set forth by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971), as reformulated pursuant to McCreary County v. ACLU, 545 U.S. 844 (2005). Specifically, the Court found that Defendants’ denial of Plaintiff’s permit had a predominantly “secular purpose” -- to maintain traffic safety.1 The Court also found that a reasonable person
1 The Court further found that Defendants’ avoidance of an Establishment Clause violation constituted a “secular purpose.” “Actions taken to avoid potential Establishment Clause violations have a secular purpose under the Lemon test.” 687 F. Supp. 2d at 710 (citing
3

would not find that the Road Commission’s policy of not permitting the placement of temporary structures in the medians of major roadways conveys a message of endorsement or disapproval of religion, and therefore, the “effect” prong of the Lemon test was satisfied. Finally, the Court determined that the County’s policy did not “foster an excessive government entanglement with religion.” 687 F. Supp. 2d at 701-02.
In view of the Court’s factual findings and its own visit to the site, after entering the December 28 Opinion and Order, the Court ordered the parties to show cause why its Opinion and Order denying Plaintiff’s Motion for a Preliminary Injunction should not be converted to a final Judgment on the merits pursuant to Fed. R. Civ. P. 65(a)(2). Defendants agreed that the Order should be so converted, but Plaintiff objected and requested an opportunity to more fully develop a factual record through discovery to give him the opportunity to challenge the veracity of Defendants’ assertion that the decision to deny the permit was based upon a determination that the Nativity posed a significant danger to public safety and to ascertain what specifically was discussed at the March 6, 2009 meeting of the Board of Commissioners with respect to Plaintiff’s application for the permit. Plaintiff also stated that he wanted to proceed with discovery with regard to his Establishment Clause and Equal Protection claims which had not been addressed in his preliminary injunction filings. The Court granted Plaintiff’s request and the case, accordingly, proceeded with discovery.
Discovery has now closed and the parties now cross-move for summary judgment. Having reviewed and considered the parties’ briefs and supporting evidence, and the
Stratechuk v. Bd. of Ed., South Maplewood School Dist., 587 F.3d 597 (3rd Cir. 2009); Vasquez v. Los Angeles County, 487 F.3d 1246, 1255 (9th Cir.), cert. denied, 552 U.S. 1062 (2007); Roberts v. Madigan, 921 F.2d 1047, 1054 (10th Cir.1990), cert. denied, 505 U.S. 1218 (1992).)
4

entire record of this matter, the Court finds that the pertinent facts and legal contentions are sufficiently presented in these materials, and that oral argument would not assist in the resolution of this matter. Accordingly, pursuant to Eastern District of Michigan Local Rule 7.1(f)(2), the Court will decide Defendant’s motion “on the briefs.” This Opinion and Order sets forth the Court’s ruling.
II. PERTINENT FACTS THE PARTIES
Plaintiff John Satawa is a resident of the City of Warren, Michigan. The Defendant Board of County Road Commissioners of Macomb County (the “Board” or the “Road Commission”) is a corporate body formed in accordance with Michigan statutory law. See M.C.L. § 224.9. The Board consists of three commissioners and is charged with the responsibility for overseeing the Road Commission’s budget and establishing and carrying out policies with regard to all matters pertaining to the County roads. Defendant Fran Gillett has been a Road Commissioner since 2000, and in 2009 was the Chairperson of the Board. Defendant Robert Hoepfner is the County Highway Engineer for Macomb County. Mr. Hoepfner is responsible for the supervision, maintenance, design, construction, permitting, rightof-way, and traffic engineering operations of the Road Commission. He has served in this capacity since 1995. REMOVAL OF MR. SATAWA’S NATIVITY DISPLAY IN 2008
On December 10, 2008, the Board received via fax a letter from the Freedom from Religious Foundation, written on behalf of an unidentified “concerned Macomb County resident,” who objected to a Nativity scene erected on the median of Mound Road, south of
5

Chicago Road, in Warren, Michigan.2 Mound Road is a County road, and as such, is
2 The letter, dated December 10, 2008, stated as follows:
Dear Commissioners:
I am writing on behalf of a concerned Macomb county resident, who objects to the erection and maintenance of a nativity scene on County property. Freedom From Religion Foundation (FFRF) is a national nonprofit organization based in Madison, Wisconsin with over 13,000 members across the country. Our purpose is to protect the fundamental constitutional principle of separation of church and state.
It is our information and understanding that a nativity scene has been erected in the median at the intersection of Mound Road and Chicago Road in the city of Warren. Our complainant informs us there is a sign inside the glass-enclosed crèche that reads “In Memory of Joseph and Rose Satawa.” Additionally, there is a wooden sign that states “A blessed Christmas, St. Anne Parish.”
It is unlawful for the Road Commission of Macomb County to maintain, erect, or host a holiday display that consists solely of a nativity scene, thus singling out, showing preference for, and endorsing one religion. The Supreme Court has ruled it is impermissible to place a nativity scene as the sole focus of a display on government property. See Allegheny v. ACLU of Pittsburgh, 492 U.S. 1989; Lynch v. Donnelly, 465 U.S. 668 (1983).
In County of Allegheny v. ACLU of Pittsburgh, 492 U.S. 573 (1989), the Supreme Court held that a county government’s crèche displayed in the county courthouse was an unconstitutional endorsement of religion. The Court stated,
“Lynch v. Donnelly, confirms, and in no way repudiates, the longstanding constitutional principle that government may not engage in a practice that has the effect of promoting or endorsing religious beliefs. The display of the crèche in the county courthouse has this unconstitutional effect. Id. at 621.
The Court further determined that the placement of the crèche on the Grand Staircase of the county courthouse contributed to its illegality because “no viewer could reasonably think it occupies this location without support and approval of the government.” Id. at 599600. Moreover, the Court found that the nativity scene “sen[t] an unmistakable message that ‘the county] supports and promotes the Christian praise to God that is the crèche’s religious message.” Id. at 601.
It is irrefutable that the crèche is a religious, Christian symbol. See Lynch v. Donnelly, 465 U.S. 668, 711 (1984) (Brennan, J. Dissenting) (stating that the crèche is a “recreation of an event that lies at the heart of the Christian faith”). Displaying an inherently Christian message at a busy
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under the jurisdiction of the Macomb County Road Commission. [See 30(b)(6) Deposition of
intersection on County-owned property unmistakably sends the message that Macomb County endorsed the religious beliefs embodied in the display. When the County displays this manger scene, which depicts the legendary birth of Jesus Christ, it places the imprimatur of the Macomb County government behind the Christian religious doctrine. This excludes citizens who are not Christians -- Jews, Native American religion practitioners, animists, etc., as well as the significant and growing portion of the U.S. population that is not religious at all [14% of adults], including complainants and taxpayers in your county.
The constitutional concerns are not alleviated simply because the crèche is erected and/or owned by St. Anne Parish. The Supreme Court stated in Allegheny,
“[t]he fact that the crèche bears a sign disclosing its ownership by a Roman Catholic organization does not alter this conclusion. On the contrary, the sign simply demonstrates that the government is endorsing the religious message of that organization, rather than communicating a message of its own. But the Establishment Clause does not limit only the religious content of the government’s own communications. It also prohibits the government’s support and promotion of religious communications by religious organizations.” Id.
There is further government entanglement because the illumination of the display is presumably provided by the city.
There are ample private and church grounds where religious displays may be freely placed, including, presumably, St. Anne’s Parish, where this display clearly belongs. Once the government enters into the religion business, conferring endorsement and preference for one religion over others, it strikes a blow at religious liberty, forcing taxpayers of all faiths and of no religion to support a particular expression of worship. We ask that you immediately phone St. Anne’s Parish to have them remove the display to private property. May we hear from you immediately about the steps you are taking to remedy this violation?
Sincerely,
/s/ Rebecca S. Kratz Staff Attorney
[Plaintiff’s Summary Judgment Ex. 10.]
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Robert Hoepfner, p. 13]3 Prior to receiving the December 10, 2008 letter, the Road Commission was unaware of the Nativity display. Id. p. 22; see also Deposition of Fran Gillett, p. 22.
As a result of the citizen complaint, Robert Hoepfner dispatched Joe Dana, a Road Commission permit inspector responsible for that area of Macomb County, to investigate. [Hoepfner Dep. pp. 19-20.] When Dana returned, he confirmed to Mr. Hoepfner the presence of the Nativity display on the median and reported that crèche had a plaque on the back that had Mr. Satawa’s phone number on it. Id. p. 19.
a. The Site of the Display As indicated, the median in question is the center median of Mound Road just south of Chicago Road. [See 12/17/09 Stipulation of Facts, ¶ 2 and Ex. C.] Mound Road is a certified Macomb County Road that is currently four lanes north bound, and four lanes south bound. Id. ¶ 6. The road supports over 82,600 cars a day and has a posted speed limit of 50 mph. Id. The road is divided by a center median which is segmented by turning lanes and intersections. The particular median at issue in this case is 60 feet wide. Id. ¶ 3. Chicago Road is a two-lane road which runs east and west and intersects Mound Road just north of the proposed crèche site. The Mound Road - Chicago Road intersection is controlled by traffic signals in all directions on both sides of the intersection. The specific site for Mr. Satawa’s display on the median is approximately 25 feet from the curb, facing Chicago Road to the north. See id., Ex. C. In front of the site is a sidewalk which adjoins the crosswalks on the north and south bound lanes of Mound Road. Id. Pedestrian
3 Chicago Road, on the other hand, is not a County road, but rather is a city road under the jurisdiction of the City of Warren. [Hoepfner Dep. p. 22.]
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stop lights facing east and west are located on an electrical pole on the northeast corner of the median. See Plaintiff’s TRO Exhs. P-1 through P-4. There is a stand of pine trees on the median immediately behind the proposed site. See Satawa Dep., p. 80; Plaintiff’s Summary Judgment Ex. Ex. 7. These trees are centered between the north and south-bound roadways and are collectively 29 feet, 4 inches wide. 12/17/09 Stipulation, ¶ 2. The trees are less dense in foliage on the lower branches than on the upper branches, permitting visibility, albeit somewhat diffused, of the north-bound Mound Road traffic if one is traveling east-bound on Chicago Road through the signal-controlled intersection. See e.g., Plaintiff’s SJ Ex. 7; Plaintiff’s TRO Ex. P-1.
On this same median island behind the stand of trees are various unattended pieces of old farming equipment and wagons. See Plaintiff’s SJ Ex. 19. These items are displayed by the “Friends of the Village,” a private organization of local residents seeking to maintain the “village” character of Warren. See id. There are also two benches for public seating -- one a wooden park bench and one a smaller concrete bench -- on this portion of the median.
On the median just north of Chicago Road, there is a small gazebo and courtyard erected by the Village of Warren Historical Commission. See id. This permanent display was installed in 1982 when the State of Michigan Historical Society erected a Historical Site Marker honoring the former Village of Warren. See Hoepfner Affidavit, Defendants’ Ex. A ¶ 33 and Plaintiff’s Ex. Ex. 19.] The Road Commission permitted the permanent installation but on condition that the City of Warren indemnify and hold the Commission harmless through a Warren City Resolution accepting the liability and providing indemnification. [Hoepfner Aff. ¶ 34.] The City of Warren currently insures this historic site with a $5 million insurance policy. Id. ¶ 37; Plaintiff’s Ex. 20.
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b. Structure of the Display Mr. Satawa’s Nativity display (as erected in 2008) consists of a log cabin-like structure standing 9 ½ feet high and 8' x 8' in width and depth. (Although the physical structure of the crèche is 8' x 8' x 8', the actual height of the display is 9 ½ feet as it sits on top of an 18-inch high raised platform.) The crèche has windows on both the front and back of the structure so that the statues displayed within could be seen from both Mound and Chicago Roads. The display is illuminated at night. The crèche itself has a sign on it saying “A Blessed Christmas, St. Anne Parish.” Inside the glass-enclosed crèche is another sign reading “In Memory of Joseph and Rose Satawa.” After hearing Permit Inspector Dana’s report, Mr. Hoepfner called Mr. Satawa and told him that, because he did not have a permit for the display, he would have to take it down. [Hoepfner Dep. p. 19, 24.] Hoepfner followed up on this telephone conversation with a letter the next day, December 11, 2008, directing him to remove the display within 30 days. Id. p. 25.4
4 Hoepfner’s letter stated as follows: Dear Mr. Satawa: It has come to the attention of the Road Commission of Macomb County that you have installed a temporary structure in the median of Mound Road south of Chicago Road in the City of Warren. A search of our records indicates that no permit was issued for this structure to be placed in the Road Commission right of way. This letter serves as your notice to immediately remove the structure from the right of way. If removal does not occur within 30 days of the receipt of this letter, the Road Commission forces will remove the structure and bill you for the costs incurred. If you have any questions regarding this matter, please feel free to contact me.
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According to Plaintiff, he and his family had set up a Nativity scene on the Mound Road median during the Christmas holiday every year but one (due to major construction on Mound Road) since 1945.5 Nonetheless, he complied with Hoepfner’s directive and removed the display. PLAINTIFF’S 2009 PERMIT APPLICATION
In January 2009, Mr. Satawa went to the office of the Road Commission to obtain a permit for the display of his Nativity scene the following Christmas holiday season. [Satawa Declaration, ¶ 22] Assisted by permit department staff, Plaintiff completed a permit application on the spot and was informed that he would receive a response from the Road Commission in two to three weeks. Id. ¶ 24. On February 7, 2009, however, Plaintiff received a letter from permit department informing him that his application was incomplete. Included with the letter was a new application for Plaintiff to complete and sign. Id. ¶ 25. With the assistance of counsel, Mr. Satawa completed this new application setting forth therein the details of his proposed Nativity display and included with the application photographs showing the size and precise location of the display from various angles, purportedly to show that the display would not obstruct any vehicular or pedestrian traffic or create any public safety issues. Id. ¶¶ 32-33.
Sincerely, /s/ Robert P. Hoepfner, P.E. County Highway Engineer [Plaintiff’s SJ Ex. 11.] 5 The history of the display and the various changes made in the form of the display over the years are set forth in the Court’s December 28, 2009 Opinion and Order Denying Plaintiff’s Motion for Preliminary Injunction, Satawa v. Bd of County Road Com’rs of Macomb County, 687 F. Supp. 2d 682 (E.D. Mich. 2009).
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In this new permit application Plaintiff stated as follows:
Applicant, Mr. John Satawa, requests permission to temporarily display a Nativity Scene in the median of Mound Road south of Chicago Road in the City of Warren for a period beginning on November 28, 2009 and ending on January 9, 2010. Applicant’s display is intended to be an exercise of his private religious speech, which is fully protected under the Free Speech Clause of the First Amendment.
The proposed Nativity Scene is approximately 8' x 8' x 8' at the peak, and it will be displayed in a manner similar to how it has been displayed at this location for the past 60 years. The enclosed photographs which were taken of the display in January 2009, illustrate the nature, size, and location of the proposed display. As demonstrated by the photographs, there are no obstructions to vehicular or pedestrian traffic or any other safety concerns caused by the display.
The proposed display will be lighted by two 150W floodlights and two 100W light bulbs. There is an electrical outlet available at the median location that has been used in previous years to provide power for the display. Applicant will pay for all electrical costs associated with his display. Additionally, applicant will be responsible for putting up and taking down the display. No assistance from government employees will be required.
Please advise if any insurance will be required, the reasons for said insurance, and the amount. Applicant is willing to pay all reasonable costs associated with his temporary display. Applicant is also willing to post a sign at the display which clearly states that it is his private display and not the display of Macomb County, the City of Warren, or any other government entity. Applicant is willing to coordinate and cooperate with Macomb County on the content, size and location of the sign.
[Plaintiff’s SJ Ex. 15 (emphasis in original).]
Mr. Hoepfner testified that he had numerous discussions with the commissioners during
the course of day-to-day business about the display, and taking into account all the discussions,
“many, many hours” were spent reviewing Plaintiff’s application. [Hoepfner Dep. p. 106-07.]
During these discussions, Hoepfner expressed his concerns about the safety of the display being
erected on the Mound Road median and recommended that Mr. Satawa’s permit not be approved
based on those concerns. Id. He testified that the Board members concurred with his
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recommendation. Id. at 107. Fran Gillett also testified that there were discussions in the hall and in her office with Hoepfner about the safety concerns raised by Mr. Satawa’s proposed display. [Gillett Dep. p. 78-9.] Hoepfner viewed Satawa’s proposed display as presenting a danger to public safety because “[i]t’s an encroachment and an obstruction within our right-of-way that could be struck by a vehicle.” [Hoepfner Dep. at 31-32.] He further testified that, although he did not base denial of the permit on other safety grounds, in his opinion, the display would also violate standards set forth in the Michigan Road Design Manual which are set forth in the Road Commission’s Subdivision Development Procedures, Standards and Specifications. Id. at 33. Specifically, Hoepfner pointed to the “clear zone” standard and the requirements regarding sight distance. Id.
Though he had had numerous discussions with the individual Board members about the unsafe nature of the display Mr. Satawa proposed to erect, on March 6, 2009, Mr. Hoepfner decided to address Mr. Satawa’s permit application before the full three-member Board at their regular public meeting. Hoepfner testified that permit applications are not normally brought formally before the Board at a public meeting but rather are simply handled administratively by him and his permit office staff. Id. at pp. 17-19, 42. Hoepfner thought, however, that in this instance, the full Board should be fully informed of his intended denial of the permit, to give the Board a “heads up as to what I was going to do” because he was sure “they were liable to hear about it.” Id. at p. 42, 44.
Hoepfner testified that Satawa’s permit application was discussed at the March 6, 2009 meeting during the informal, informational “new business” portion of the meeting, after all regular business was completed. Id. at 39-40. The meeting was tape-recorded. According to the
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transcript of the meeting, Hoepfner told the Board:
MALE SPEAKER [Hoepfner]6: This is an interesting one, last year a gentleman for the last 60 years has been installing a nativity scene at Mound Road and Chicago Road in the median of Mound Road. I received a letter from some anti-nativity scene law firm asking me to get rid of it. . . .
. . . So I wrote the man a letter and ordered him to remove the nativity scene from the right-of-way. He has come in now and applied for a permit to install the nativity scene next year. His cover letter is from a law firm, the Thomas More [sic] Law Center. I’ve contacted [Attorney] Ben Aloia and asked him to research it. Ben has informed me that we should not allow this nativity scene to be installed, and he has given me some language that I should respond to the permit. I intend to do that. This probably won’t go away and I suspect they’ll sue us.
FEMALE SPEAKER [Gillett]: All we can do is obey the law.
[Plaintiff’s SJ Ex. 24.]7
6 The speakers identified on the transcript as “Male Speaker” and “Female Speaker” were identified by Fran Gillett in her Deposition, the male speaker being Robert Hoepfner and the female speaker being Ms. Gillett. [See Gillett Dep. pp. 54-55.]
7 The Court notes that admissibility of this transcript might be problematic as the recording from which the transcript was made has not been authenticated. The transcript provided by Plaintiff was transcribed by a private court reporter apparently hired by Plaintiff’s counsel. There is no certification, however, as to the authenticity of the MP3 recording from which the transcription was prepared. Plaintiff has submitted as one of his exhibits an email with an MP3 file attachment noted from Defendant’s counsel to Plaintiff’s counsel stating “I attached an audio recording of the meeting where the nativity scene was discussed,” but Defendant’s counsel does not state that he was at the meeting or that he made the original recording of it. Ms. Gillett testified in her deposition that she listened to an audio recording of the March 6, 2009 meeting, however, she was not asked to listen to the recording at her deposition or review the transcript of it, or otherwise authenticate it. Mr. Hoepfner testified in his deposition that he had not listened to the audio recording of the meeting at all. Nonetheless, since neither party has objected to the Court’s consideration of this transcript in deciding the summary judgment motions, the Court will assume that the authentication deficiency will be able to be cured if this matter were to go trial. The Court is permitted to consider evidence submitted at summary judgment in non-admissible form when the evidence “will be reduced to admissible form at trial.” McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir.1996) (allowing otherwise admissible evidence to be submitted in inadmissible form at the summary judgment stage, though at trial it must be submitted in admissible form). See also Gleklen v. Democratic Cong.
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On March 9, 2009, Mr. Hoepfner sent Plaintiff’s attorney a letter formally denying
Plaintiff’s application for a permit for his display. The denial letter stated as follows:
Dear Mr. Muise:
Please allow this letter to serve as the Board of County Road Commissioners for the County of Macomb’s formal denial of the January 7, 2009 Application for Permit submitted by John Satawa to erect a nativity scene in the Mound Road right of way. Given the religious nature of your nativity scene, the Road Commission of Macomb County as a governmental agency must weigh whether or not the approval of such a permit would be deemed a violation of the First Amendment of the United States Constitution.
A statute or practice that touches on religion, if it [is] to be permissible under the establishment of religion clause of the Constitution’s First Amendment, (1) must have a secular purpose, (2) must neither advance nor inhibit religion in its principal or primary effect, and (3) must not foster an excessive entanglement of government with religion. In Allegheny v. ACLU of Pittsburgh, 492 U.S. 573 (1989), the U.S. Supreme Court held that “there is no doubt, of course, that the crèche (nativity scene) itself is capable of communicating a religious message.”
Since the nativity scene Mr. Satawa desires to place in the right of way clearly displays a religious message, this would be a violation of the Establishment Clause of the First Amendment. “Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from ‘making any adherence to a religion relevant in any way to a person’s standing in the political community.’” Allegheny, at 594.
The Road Commission of Macomb County cannot permit you to display this nativity scene in the Road Commission’s right of way. This undoubtedly would be interpreted as our endorsement of religion, in violation of the Establishment Clause of the U.S. Constitution.
Thank you for your attention to this matter. Please do not hesitate to contact me with an questions or concerns.
Campaign Comm., Inc., 199 F.3d 1365 (D.C. Cir. 2000) (holding that any evidence considered by a court at the summary judgment stage “must be capable of being converted into admissible evidence.” Id. at 1369.); DeBiasi v. Charter County of Wayne, 537 F. Supp. 2d 903, 911 (E.D. Mich. 2008) (Though “Plaintiff’s log is clearly hearsay. . . [i]f the contents of DeBiasi’s log could be presented in an admissible form at trial, the Court may consider the log’s contents in deciding Defendants’ summary judgment motion.” Id.)
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Sincerely, /s/ Robert P. Hoepfner, P.E. County Highway Engineer [Plaintiff’s SJ Ex. 9.] Defendant Hoepfner admitted in his deposition that this letter only addressed some of the reasons for his denial of Plaintiff’s permit application; it did not address the safety concerns. [Hoepfner Dep. p. 44.] Hoepfner stated that since Mr. Satawa had stated in his permit application that he sought to erect his display as an exercise of his private religious speech, the denial letter addressed this aspect of the application. [Hoepfner Affidavit, Defendant’s Ex. A, ¶ 31]. He further stated that since the Commission had already determined when it sent Mr. Satawa the letter dated December 11, 2008 that the structure was a significant danger to public safety and reached the same conclusion when it considered his application in 2009, he viewed Satawa’s “freedom of religious expression” application as seeking an exception to the Road Commission’s general policy of not allowing private installations in the medians of major highways and primary roads, and so, addressed only that issue in his denial letter. Id. ¶¶ 30-31. That Satawa’s proposed Nativity scene could potentially pose a safety hazard was confirmed by Defendants’ expert, Dr. William C. Taylor, Ph.D. Although Dr. Taylor found that the Nativity display did not pose a “strike hazard,” he did find the crèche to present a visibility obstruction that would impede the view a driver proceeding eastbound on Chicago Road at a rate of speed of 18 to 24 miles per hour of oncoming northbound Mound Road traffic.8 See Taylor Dep. pp. 23-36; 47-51 and Defendants’ Response Exhs. J, K. According to Dr. Taylor, the sight
8 The speed limit on Chicago Road is 30 mph and on Mound Road it is 50 mph. 16

line impediment lasts for a period of at least one second so if the eastbound driver does not look over again while approaching or driving through the intersection, and thus, not alerted to an oncoming, northbound Mound Road driver traveling at a rate of 30-60 miles per hour who travels through a red light (whether intentionally or because he is distracted, drowsy or impaired by alcohol or some other substance), the crèche creates a potentially significant safety hazard. See id.
Plaintiff’s expert, Dr. John F. Weichel, Ph.D., concurred with Dr. Taylor that [i]f traffic is approaching eastbound on Chicago Road, there is the possibility that a driver traveling in that direction who is not obeying traffic signals may not be able to identify the presence of northbound traffic on Mound Road in time to respond to that traffic. In that case, any visibility obstructions may impede this driver’s ability to perceive traffic on Mound Road. . . . The crèche can also be a visibility obstruction in this situation. [Weichel Report, Defendants’ Ex. M, p. 6.] Dr. Weichel, however, opined that the presence of the crèche does not obscure the visibility of the eastbound traffic for a sufficient period of time to alter that driver’s response. Id. This opinion was based on the assumption that the Chicago Road vehicle is traveling at a constant 30 miles per hour and the Mound Road vehicle traveling at 50 miles per hour. See id. In his opinion, at this speed, the crèche would obscure the view of the eastbound Chicago Road driver for only 0.29 seconds and thereby allow him sufficient time to avoid a collision with the Mound Road vehicle. Id. Mr. Satawa testified in his deposition that since this dispute has arisen, St. Anne’s Parish, which is located just a few hundred yards from the Mound Road median at issue has offered to permit him to display is Nativity scene on their grounds affronting Mound Road. [Satawa Dep. p. 55.] In addition, 9 or 10 other business and property owners along this same
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section of Mound Road made the same offer, including Lyle Elliot Funeral Home, Gazebo Banquet Center, St. Paul’s Lutheran Church, the K of C Council and several individuals. Id. Nonetheless, Mr. Satawa has stated that his goal is to once again display his Nativity scene in the median of Mound Road and he intends to continue to make requests for a permit to allow him to do so. See Satawa Supplemental Declaration, ¶ 4.
III. ANALYSIS A. APPLICABLE STANDARDS
Summary judgment is proper if the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). As the Supreme Court has explained, “the plain language of Rule 56[] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986). In addition, where a moving party seeks an award of summary judgment in its favor on a claim or issue as to which it bears the burden of proof at trial, this party’s “showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986) (internal quotation marks, citation, and emphasis omitted).
In deciding a motion brought under Rule 56, the Court must view the evidence in a light most favorable to the nonmoving party. Pack v. Damon Corp., 434 F.3d 810, 813 (6th Cir. 2006). Yet, the nonmoving party may not rely on mere allegations or denials, but must “cit[e] to particular parts of materials in the record” as establishing that one or more material facts are
18

“genuinely disputed.” Fed. R. Civ. P. 56(c)(1). Moreover, any supporting or opposing affidavits or declarations “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). Finally, “the mere existence of a scintilla of evidence that supports the nonmoving party’s claims is insufficient to defeat summary judgment.” Pack, 434 F.3d at 814 (alteration, internal quotation marks, and citation omitted).
The Court will apply the foregoing standards in deciding the parties’ cross-motions for summary judgment in this case. B. THE “LAW OF THE CASE DOCTRINE” IS INAPPLICABLE HERE
As an initial matter, the Court addresses Defendants’ argument that the Court’s prior ruling denying Plaintiff’s Motion for a Preliminary Injunction is “law of the case” which dictates that Defendants now be granted summary judgment on Plaintiff’s Free Speech and Establishment Clause claims.
The “law of the case” doctrine “‘posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.’” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 815-16, 108 S.Ct. 2166, 2177 (1988) (quoting Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391 (1983)). This rule of practice promotes the finality and efficiency of the judicial process by “protecting against the agitation of settled issues.” Id. However, unlike the more precise requirements of res judicata and collateral estoppel, “law of the case is an amorphous concept.” Arizona v. California, 460 U.S. at 618, 103 S.Ct. at 1391. “Rulings that simply deny extraordinary relief for want of a clear and strong showing on the merits, or that are avowedly preliminary or tentative, do not trigger
19

law of the case consequences.” Wilcox D.O., P.C. Employees’ Defined Benefit Trust v. United
States, 888 F.2d 1111, 1113 (6th Cir. 1989). Thus, a court’s determination of substantive issues
in deciding a motion for preliminary injunction do not constitute “law of the case” for purposes
of a decision on the merits of the case. Wilcox, 888 F.2d at 1113.
As the Wilcox court explained,
“The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held. Given this limited purpose, and given the haste that is often necessary if those positions are to be preserved, a preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a trial on the merits. A party thus is not required to prove his case in full at a preliminary-injunction hearing. . . , and the findings of fact and conclusions of law made by a court granting a preliminary injunction are not binding at trial on the merits. . . .”
888 F.2d at 1113, 1114 (quoting University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct.
1830, 1834 (1981) (some internal punctuation omitted); accord In re DeLorean Motor Co., 755
F.2d 1223, 1230 (6th Cir.1985). See also Bd. of Trade v. Commodity Futures Trading Comm’n,
605 F.2d 1016, 1020 (7th Cir.1979), cert. denied, 446 U.S. 928 (1980) (refusal to stay a
preliminary injunction pending appeal did not establish the law of the case since it rested on
nothing more than a tentative appraisal of the probable result on the merits); City of Angoon v.
Hodel, 803 F.2d 1016, 1024 n. 4 (9th Cir.1986), cert. denied, 484 U.S. 870 (1987)
(determinations made in interlocutory appeal from a preliminary injunction do not constitute the
law of the case); Berrigan v. Sigler, 499 F.2d 514, 518 (D.C. Cir. 1974) (“The decision of a trial
or appellate court whether to grant or deny a preliminary injunction does not constitute the law
of the case for the purposes of further proceedings and does not limit or preclude the parties from
litigating the merits, unless there has been an order of consolidation pursuant to Rule 65(a)(2)”).
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Because of the lesser burden of proof required to support a motion for preliminary injunction as contrasted with a motion for summary judgment, courts consistently have concluded that decisions on preliminary injunctions do not constitute law of the case and, therefore are not binding on a motion for summary judgment. See Golden State Transit Corp. v. City of Los Angeles, 754 F.2d 830, 832 n. 3 (9th Cir.1985) (quoting City of Anaheim v. Duncan, 658 F.2d 1326, 1328 n. 2 (9th Cir.1981)), rev’d on other grounds, 475 U.S. 608, 106 S.Ct. 1395 (1986)); Wilcox, supra, 888 F.2d at 1113-14 (because ruling on preliminary injunction is not law of the case it is not binding on motion for summary judgment); Guillermety v. Secretary of Education, 241 F. Supp. 2d 727, 731-32 (E.D. Mich. 2002) (same); Harris v. Fitchville Twp. Trustees, 154 F. Supp. 2d 1182, 1186-87 (N.D. Ohio 2001) (same); Technical Publishing Co. v. Lebhar-Friedman, Inc., 729 F.2d 1136, 1139 (7th Cir.1984) (“A factual finding made in connection with a preliminary injunction is not binding” on a motion for summary judgment); Marathon Petrol. Co. v. Lo Bosco, 623 F. Supp. 129, 131 (N.D. Ill.1985) (same).
The foregoing authorities make clear that Defendants’ contention that the findings of fact and conclusions of law made by the Court in denying Plaintiff’s Motion for a Preliminary Injunction are “fatal” to Plaintiff’s Free Speech and Establishment Clause claims lacks legal merit. The Court, therefore, will proceed to consider de novo the pertinent facts -- as more fully developed through discovery -- and the applicable law in deciding the instant summary judgment motions. C. PLAINTIFF’S FREEDOM OF SPEECH CLAIM
In Count I of his Complaint Plaintiff contends that the Road Commission’s denial of his application to display his Nativity scene in the Mound Road median violated his First
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Amendment right to freedom of speech. To determine the constitutionality of a governmental restriction on speech on publicly-
owned property requires consideration of three questions: (1) whether the speech is protected under the First Amendment; (2) what type of forum is at issue and, therefore, what constitutional standard applies; and (3) whether the restriction on speech in question satisfies the constitutional standard for the forum. Miller v. Cincinnati, 622 F.3d 524, 533 (6th Cir. 2010) (citing S.H.A.R.K. v. Metro Parks Serving Summit County, 499 F.3d 553, 559 (6th Cir. 2007)).
The parties here do not dispute the display of a Nativity scene is an act of constitutionally protected religious expression. See Allegheny v. ACLU of Pittsburgh, 492 U.S. 573, 598, 109 S.Ct. 3086, 3103 (1989). The question here is whether Plaintiff has a constitutionally protected right to display the Nativity scene on the median in Mound Road, a County Road under the jurisdiction of the Macomb County Road Commission. 1. The Mound Road Median is not a Traditional Public Forum
Simply because the government may own a piece of property does not mean that property is open at all times to all types of expressive activity. Miller v. City of Cincinnati, supra, 622 F.3d at 533. “[T]he State, no less than a private owner of property, has power to preserve the property under its control for the use for which it is lawfully dedicated.” Id. (quoting Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46, 103 S.Ct. 948, 955 (1983)). “Even protected speech is not equally permissible in all places and at all times. Nothing in the Constitution requires that Government freely grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.” Boardley v. United States
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Dep’t of Interior, 615 F.3d 508, 514 (D.C. Cir. 2010) (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 799-800, 105 S.Ct. 3439, 3447 (1985)). See also Capitol Square Review and Advisory Bd. v. Pinette, supra, 515 U.S.753,761, 115 S.Ct. 2440, 2446 (1995) (“It is undeniable, of course, that speech which is constitutionally protected against state suppression is not thereby accorded a guaranteed forum on all property owned by the State.”)
For First Amendment purposes, Government property has been divided into three categories: traditional public fora, designated (or “limited”) public fora, and non-public fora. See Cornelius v. NAACP Legal Def. & Educ. Fund, supra, 473 U.S. at 800, 105 S.Ct. at 3449. Public fora generally are those “places which by long tradition or by government fiat have been devoted to assembly and debate.” Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. at 45, 103 S.Ct. at 954. A second category of public fora consists of “public property which the State has opened for use by the public as a place for expressive activity.” Id., 460 U.S. at 45, 103 S.Ct. at 955. See, e.g., Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269 (1981) (university meeting facilities); City of Madison Joint School Dist. No. 8 v. Wisconsin Empl. Relations Comm’n, 429 U.S. 167, 97 S.Ct. 421 (1976) (school board meeting); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239 (1975) (municipal theatre). This type of public forum has been called a “limited public forum,” or “designated public forum.” San Diego Committee Against Registration and the Draft (CARD) v. Governing Bd. of Grossmont Union High School Dist., 790 F.2d 1471, 1475 (9th Cir.1986). “A limited public forum may, depending upon its nature and the nature of the state’s actions, be open to the general public for the discussion of all topics, or there may be limitations on the groups allowed to use the forums or the topics that can be discussed.” Id. At the opposite end of the spectrum is a non-public forum.
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A non-public forum, by contrast, is a government-owned property that is not by tradition or governmental designation “a forum for public communication.” Perry Educ. Ass’n, supra, 460 U.S. at 46, 103 S.Ct. at 955; Miller v. City of Cincinnati, supra, 622 F.3d at 524; Helms v. Zubaty, 495 F.3d 252, 256 (6th Cir.2007). Plaintiffs here argue that the Mound Road median in question is a public forum.9
Streets and parks are traditional public fora. The Supreme Court “long ago recognized that members of the public retain strong free speech rights when they venture into public streets and parks, which ‘have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’” Pleasant Grove City, Utah v. Summum, 555 U.S. 460, ___, 129 S.Ct. 1125, 1131 (2009) (quoting Perry Ed. Ass’n. v. Perry Local Educators’ Ass’n., 460 U.S. at 45, 103 S.Ct. at 954-55 (quoting Hague v. Committee for Industrial Organization, 307 U.S. 496, 515, 59 S.Ct. 954, 964 (1939))). Plaintiff argues that the median in the center of Mound Road is a public forum because it is in the middle of a public street: “The property at issue here is a public median, which, as a matter of Michigan law, is part of the public street.” [Plaintiff’s Brief in Support of his Motion for Summary Judgment, Dkt. #37, p. 13 (citing M.C.L. § 257.20) (emphasis in original).]
As indicated in making this argument, Plaintiff relies upon M.C.L. § 257.20. Chapter 257 of the Michigan Compiled Laws contains the Motor Vehicle Code. Section 20 of the Code, M.C.L. § 257.20, provides a definition of “highway or street”:
9 In one brief, footnote without any substantive analysis, Plaintiff also suggests that the Court could also conclude that Defendants created a “designated public forum.”
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“Highway or street” means the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.
M.C.L. § 257.20.
Plaintiff’s reasoning is that, because this statute states that “highway or street”
encompasses “the entire width between the boundary lines” of every publicly maintained way,
the median in the center of Mound Road is necessarily a part of the street, and, therefore, a
public forum. However, “[t]he protections of the First Amendment do not rise or fall depending
on the characterization ascribed to a forum by the government.” Boardley v. Dep’t of Interior,
supra, 615 F.3d at 514. As the Boardley court explained:
Mount Rushmore does not become a public forum merely by being called a “national park” any more than it would be transformed into a non-public forum if it were labeled a “museum.” The dispositive question is not what the forum is called, but what purpose it serves, either by tradition or specific designation. What makes a park a traditional public forum is not its grass and trees, but the fact that it has “immemorially been held in trust for the use of the public and, time out of mind, ha[s] been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” [Citations omitted.] Thus, to establish that a national park (in whole or in part) is a traditional public forum, Boardley must show that, like a typical municipal park, it has been held open by the government for the purpose of public discourse.
615 F.3d at 514-15 (emphasis in original). See also United States v. Kokinda, 497 U.S. 720, 727,
110 S.Ct. 3115, 3120 (1990) (cautioning “the mere physical characteristics of the property
cannot dictate forum analysis” and holding that sidewalk abutting a Post Office was not a public
forum). Cf., Zalaski v. City of Bridgeport Police Dept., 613 F.3d 336, 342-43 (2d. Cir. 2010)
(remanding case involving First Amendment challenge to arrests of individuals participating in
an animal rights protest on plaza outside of a public arena for the district court’s consideration of
factors relevant to the determination of whether the plaza constituted a traditional public forum,
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to-wit, the forum’s physical characteristics and the context of the property’s use, including its location and purpose; the government’s intent in constructing the space and its need for controlling expressive activities on the property, as evidenced by its policies or regulations; and whether the property in question is part of a class of property which by history or tradition has been open and used for expressive activity. Id. at 342 (citations omitted).)
Therefore, that the Michigan statute calls “the entire width between the boundary lines” of a right-of-way a “street” does not control the constitutional forum analysis.
Furthermore, even treating the median as “part of” a public street, because Plaintiff seeks access only to that “part” of the street for the display of his Nativity scene, it is only that part of the venue that is determinative of the forum. “When speakers seek general access to public property, the forum encompasses that property. When speakers seek more limited access, however, we must take a more tailored approach to ascertaining the perimeters of [the relevant] forum within the confines of the government property at issue.” Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., supra, 473 U.S. at 801, 105 S.Ct. at 3448. See also Helms v. Zubaty, 495 F.3d 252, 256 (6th Cir. 2007) (holding that because plaintiff’s speech occurred in the reception area of the Judge Executive’s office it was only the nature of that limited area, and not the general “public” nature of Fiscal Court Building within which the office was located that was determinative of the forum).
Indeed, even public streets as a whole may not always constitute traditional public fora. In ACORN v. City of Phoenix, 798 F.2d 1260 (9th Cir. 1986), the plaintiffs challenged a Phoenix city ordinance which prohibited soliciting contributions from occupants of vehicles stopped at intersections. ACORN argued broadly that the city streets constituted a traditional public forum,
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particularly suited for public expression, which could not be closed to First Amendment
activities. The defendants disputed plaintiffs’ premise. While the court acknowledged that
public streets were “the prototypical example of a public forum” when a party would seek access
to the streets for a parade or other demonstration, it refused to concede that a street might have
such a public forum character at all times:
To conclude that the streets may generally be categorized as traditional public fora may not require us to also conclude that the streets at all times and under all circumstances are susceptible to characterization as a perpetual public forum uniquely available for free expression. The district court ruled, “Clearly, by long tradition or government fiat’ such areas [streets] are not designated as forums for public communication while in use by vehicular traffic.” 605 F. Supp. at 871.
As a practical matter, there are indeed substantial differences in nature between a street, kept open to motorized vehicle traffic and a sidewalk or public park. A pedestrian ordinarily has an entitlement to be present upon the sidewalk or on the grounds of a park and thus is generally free at all times to engage in expression and public discourse at such locations. This is obviously not true of streets continually filled with pulsing traffic. Consequently, more so than with sidewalks or parks, courts have recognized a greater governmental interest in regulating the use of city streets. [Citation omitted.]
798 F.2d at 1266-67.10
Cases involving speech on highway medians are few and far between. In Snowden v.
Town of Bay Harbor Islands, Florida, 358 F. Supp. 2d 1178 (S.D. Fla. 2004), the plaintiff
requested permission to place a Nativity scene on a grassy median dividing a state road. When
the Town of Bay Harbor denied her request, she filed suit seeking declaratory and injunctive
relief. In deciding the plaintiff’s request for a preliminary injunction, the court undertook a
10 The ACORN court, however, found it unnecessary to decide whether public streets are “perpetual public fora” because it found the ordinance justified even under the more rigorous standards applied to regulation of expression in traditional public fora. Id. at 1267. Consequently, the court declined to express any opinion as to whether streets while simultaneously in use by motor vehicles are traditional public fora. Id.
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forum analysis and concluded that the median on which plaintiff sought to erect her display was
not a traditional public forum, despite the plaintiff’s characterization of it as such. The court
reasoned:
It is not a traditional park or area where people congregate, gather, and traditionally have a free exchange of ideas and speakers, with appropriate accommodations facilitating such use, such as public restrooms and public parking. This grassy area is more appropriately what Defendants have represented it to be, a rather small green space abutting two roadways, with no buffers such as sidewalks for protection or apparent invitation to the public. It does not present the physical characteristics of a park beyond the presence of grass, and is not associated with or near a seat of legislative or executive power. Cf. Warren v. Fairfax County, 196 F.3d 186 (4th Cir.1999). Although technically open to the public, it does not function as a traditional or “quintessential” public forum. See, e.g., [United States v.] Kokinda, 497 U.S. [720,] 728-29, 110 S.Ct. 3115 (“[T]he dissent is simply incorrect in asserting that every public sidewalk is a public forum. Post, at 3129-3130. As we recognized in [United States v.] Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983) ], the location and purpose of a publicly owned sidewalk is critical to determining whether such a sidewalk constitutes a public forum.”).
358 F. Supp. at 1193.
By contrast, in Warren v. Fairfax County, 196 F.3d 186 (4th Cir. 1999) (en banc), the
Court found that the Center Island mall in front of the Fairfax County Government Center
Complex was more of a park than a median as argued by the defendants (and as found by the
majority of the original appellate panel), and therefore, was a public forum.
Sidewalks circumnavigated the mall and ran through a central landscaped strip. The area of the mall abutting the Government Center Complex features a circular brick promenade complemented by additional landscaping. Surrounding the mall is the street which leads to the Government Center Complex. The entire mall is outdoors, unenclosed, publicly accessible, and in fact open to the public.
Id. at 188. From these features, the Court found that
The Center Island mall has the objective use and purpose of a traditional public forum. Its objective use is as a place of open public access, which is eminently compatible with expressive activity.
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Finally the Center Island mall is part of a class of property which by history and tradition has been open and used for expressive activity. The Center Island mall is part of the outdoor grounds of a seat of legislative and/or executive power.
Id. at 189-90.11
11 Adopting the original appellate panel’s dissenting opinion, the Fairfax County en banc court, however, stated in dicta, that even if it were to agree with the original panel’s majority determination that the Center Island mall was only a landscaped median, it would disagree with the majority’s conclusion that median strips should not be viewed as traditional public fora, stating:
Neither the district court nor the majority cited to any authority supporting their novel attempt to carve out an exception from the public forum doctrine for property that, quite literally, lies at the heart of the Supreme Court’s quintessential example of the traditional public forum. If streets, sidewalks and parks are traditional public fora, then a court bears a heavy burden in explaining why property which is merely a combination of all three from the standpoint of physical characteristics, objective uses and purposes, and traditional and historic treatment, is not. Median strips, like sidewalks, are integral parts of the public thoroughfares that constitute the traditional public fora. In many cases, median strips house sidewalks. If a person who is rightfully on a street or sidewalk left open to the public “carries with him there as elsewhere the constitutional right to express his views in an orderly fashion,” Jamison v. Texas, 318 U.S. 413, 416, 63 S.Ct. 669, 87 L.Ed. 869 (1943), I do not see how the person loses that right merely by stepping onto the median. Nor does the general public. Consistent with the median strip’s function as part of the public thoroughfares traditionally open to the public for expressive activities, people have been engaging in such activity on median strips for as long as median strips have been in existence. Newspaper criers, local civic fundraisers, members of political campaigns, religious groups, and people with a message have often chosen median strips, with their ready access to the bustle of undifferentiated humanity, as their preferred launching point for expressive conduct.
196 F.3d at 196 (footnote omitted.)
The en banc court, however, excepted from its “public forum” view of medians median strips on interstates and similarly cordoned off expressways, which by their nature are not generally accessible to pedestrians. The Center Island mall is not such a median strip as evidenced by the sidewalks around its circumference.
Id. at n. 9.
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As these cases reflect, there are few clear lines of demarcation in cases in which streets, medians and vehicular traffic coincide to create a potential conflict between free speech interests and public safety concerns. Therefore, the Court must turn to consideration of the various factors distilled from the cases in deciding whether the Mound Road median at issue should be deemed to be a public or non-public forum. These factors may be synthesized as follows: (1) the median’s physical characteristics and the context of the property’s use, including its location and purpose; (2) the County’s intent in constructing the median and its need for controlling expressive activities on the property, as evidenced by its policies or regulations; and (3) whether the property in question is part of a class of property which by history or tradition has been open and used for expressive activity.
The Mound Road median is 60 feet wide and is located in the center of a major eightlane roadway with traffic at times reaching relatively high rates of speed, and with a busy intersection. More than 82,600 cars travel the road each day at speeds of 50 miles per hour or greater. The median at issue has only one sidewalk. This sidewalk located at the median’s north end aligns with crosswalks on the east and west side of the median for pedestrian crossing of Mound Road. On the middle of the median, some distance away from the sidewalk and separated by a stand of trees is a permanent display denoting the original village character of the City of Warren. This display, which consists of some antique farm instruments and a couple of benches, was installed by the “Friends of the Village”, an organization that raised funds for the Warren Historical Commission,” to compliment the Michigan “Historic Site” marker on the median north of the Chicago Road intersection which was placed there permanently by the State
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of Michigan in 198212. The median, however, was not constructed as a gathering place but for the purpose of controlling traffic on Mound Road. And, as indicated, though it is situated in the center of a public street, the median, itself, is not among the classes of property which by history or tradition have been open and used for expressive activity.
Viewed in its totality, the subject median cannot be a place intended for bringing citizens together to exchange ideas, which, of course, is at the core of the “public forum” designation. A traditional public forum is a public place where, by long history, the public has gathered to speak, debate, and exchange ideas. See Perry Educ. Ass’n, 460 U.S. at 45, 103 S.Ct. at 954. It is those “‘[p]ublic places’ historically associated with free exercise of expressive activities, such as streets, sidewalks and parks, that are considered, without more, to be ‘public forums.’” United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1707 (1983); see also Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495 (1988) (holding in the context of picketing on a matter of public concern that residential streets are traditional public fora. “[U]ninhibited, robust and wide-open debate on public issues” strikes “at the core of the First Amendment.” Id. at 479, 108 S.Ct. at 2499). Such places are considered traditional public fora because they “have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens and discussing public questions.” Perry, 460 U.S. at 45, 103 S.Ct. at 954. Indeed, the Supreme Court “has rejected the view that traditional public forum status extends beyond its historical confines.” Arkansas Educ. Television Ass’n v. Forbes, 523 U.S. 666, 668, 118 S.Ct. 1633, 1641 (1998).
12 See www.michmarkers.com. See also Hoepfner Aff., ¶ 33.
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It cannot be said that the median on which Plaintiff wants to set up his display is used for public discourse and debate such as Capitol Square is in Columbus, Ohio, which has long been used for public gatherings and cultural festivals, see Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 115 S.Ct. 2440 (1995) (permitting display of a cross in a square in front of the Ohio statehouse which has long been used for public gatherings and cultural festivals and during the holiday season, is decorated with lights, a Christmas tree and a menorah), or Calder Plaza in Grand Rapids, Michigan, see Americans United for Separation of Church and State v. City of Grand Rapids, 980 F.2d 1538 (6th Cir. 1992) (permitting private organization’s display of Menorah on a plaza used for all forms of speech and assemblage). Nor is the median property that the City of Warren or Macomb County has dedicated to commemorating the “people, ideals, and events that compose [the city’s or county’s] identity” such as the park surrounding the Texas State Capitol, addressed in Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854 (2005) (upholding display of the Ten Commandments as one of 17 monuments on the 22-acre park surrounding the Texas State Capitol).
When public property is not characterized as a public forum, the government may reserve the forum for its intended purposes. Perry Educational Ass’n, supra, 460 U.S. at 46, 103 S.Ct. at 955; Adderley v. Florida, 385 U.S. 39. 47, 87 S.Ct. 242, 247 (1966) (“The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.”). Restrictions on speech in nonpublic fora are valid if they are “reasonable” and not an effort to suppress expression merely because public officials oppose the speaker’s view. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. at 806, 105 S.Ct. at 3451. Restrictions on speech in nonpublic fora are reasonable when they are “consistent with
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the [government’s] legitimate interest in ‘preserv[ing] the property. . . for the use to which it is lawfully dedicated.” Perry, 460 U.S. at 50-51, 103 S.Ct. at 958. “The Government’s decision to restrict access to a nonpublic forum need only be reasonable; it need not be the most reasonable or the only reasonable limitation.” Cornelius, 473 U.S. at 808, 105 S.Ct. at 3452. “Nor is there a requirement that the restriction be narrowly tailored or that the Government’s interest be compelling.” Id. at 809, 105 S.Ct. at 3452. In fact, simple common sense is sufficient to uphold a regulation under reasonableness review. United States v. Kokinda, 497 U.S. 720, 734, 110 S.Ct. 3115, 3124 (1990).
Here, Defendants justify denying Plaintiff a permit to erect his Nativity scene on the median based on concerns for vehicular traffic safety. Concern for public safety constitutes a reasonable, viewpoint neutral reason for excluding speakers from a nonpublic forum. See e.g., United Food & Comm’l Workers Local 1099 v. Sidney, 364 F.3d 738, 750-51 (6th Cir. 2004); Jacobsen v. Dept, of Transportation, 450 F.3d 778, 780 (8th Cir. 2006); Anderson v. Milwaukee County, 433 F.3d 975, 980 (7th Cir. 2006). The Court confirmed this potential traffic safety hazard in its own site visit. (See more detailed analysis below.)
Defendants having propounded a reasonable, viewpoint neutral reason for denying Plaintiff a permit to erect his Nativity scene in a nonpublic forum, the Court finds no abridgment of Plaintiff’s First Amendment right to freedom of speech.
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2. Even If the Median Is Viewed as a Public Forum, Defendants Have Demonstrated a Compelling State Interest for Denying Plaintiff a Permit
Even if the Court were to determine that the Mound Road median is a public forum, the
Court finds that Defendants’ decision is justified even under the strict scrutiny standards applied
to the regulation of speech in traditional public fora.
Government entities are strictly limited in their ability to regulate private speech in
traditional public fora. Pleasant Grove, supra, 355 U.S. at ___, 129 S.Ct. at 1132; Cornelius v.
NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. at 800, 105 S.Ct. at 3448. Although
reasonable time, place, and manner restrictions are allowed, see Perry Ed. Assn., supra, 460 U.S.
at 45, 103 S.Ct. at 955, any restriction based on the content of the speech must satisfy strict
scrutiny, that is, the restriction must be narrowly tailored to serve a compelling government
interest, see Cornelius, supra, 473 U.S. at 800, 105 S.Ct. at 3448, and restrictions based on viewpoint are prohibited, see Carey v. Brown, 447 U.S. 455, 463, 100 S.Ct. 2286, 2291 (1980).13
Defendants maintain that they had a compelling state interest in denying Plaintiff’s
application for a permit for his temporary Nativity display, that interest being to keep the county roads safe for vehicular travel.14 In furtherance of this interest, the Road Commission’s policy is
13 These same standards apply to “limited” or “designated” public fora. Pleasant Grove v. Summum, 355 U.S. at ___,129 S.Ct. at 1132; Perry Educational Ass’n, 460 U.S. at 45, 103 S.Ct. at 955.
14 As indicated above, Defendants did not give Plaintiff traffic safety as a reason in its “formal denial” of his permit. Defendants, however, have presented evidence -- which Plaintiff has not rebutted -- that they had already decided that Plaintiff’s crèche posed a traffic safety hazard at the time they sent him the denial letter but only addressed in the letter the violation of the First Amendment’s Establishment Clause they believed would result if they granted the permit because Plaintiff had focused on his First Amendment rights in submitting his application.
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to prohibit the installation of private structures and encroachments in the medians of primary roads and major highways. Mr. Hoepfner testified in his deposition that he had determined that, as an encroachment within the Mound Road right-of-way, the installation of the Nativity scene in the median would be unsafe: “It’s an obstruction and encroachment within our right of way. . . .” Hoepfner Dep., p. 32. Hoepfner further testified that he believed that the intended location of the crèche would violate specific regulations set forth in the Michigan Road Design Manual and the Road Commission’s Subdivision Development Procedures, Standards and Specifications for clear zone and sight distance. Id. at 33. Hoepfner, however, admitted he did not deny the application simply for sight problems, but rather because the intended display was an encroachment and had a structure that he thought was unsafe. Id. at 35. He further testified that he believed he had enough information at the time he reviewed the permit application to make his decision. Id. at 114. Furthermore, the Michigan Road Design Manual suggests that “virtually everyone agrees that a flat, smooth unobstructed area adjacent to driving lanes is highly desirable and significantly improves highway safety.” See Defendants’ Ex. G at Reg. 7.01.11. Taking this regulation into consideration while reviewing Plaintiff’s permit application and the photographs appended to it, Mr. Hoepfner made the decision that Plaintiff’s crèche was unsafe. Hoepfner Dep. at 114.
Defendants’ expert, Dr. William C. Taylor, Ph.D., has opined that while “the placement of the crèche as requested will not increase the hazard to motorists when all drivers obey the traffic control devices. . ., it will increase the hazard for a defensive driver approaching the intersection on Chicago Road from the west when a driver runs a red light while traveling on [northbound] Mound Road.” Taylor Report, Defendants’ Ex. C. According to Dr. Taylor, the
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visibility obstruction created by the crèche becomes problematic when the eastbound Chicago
Road driver approaches the intersection between the speed of 18 mph and 24 mph and looks over
to the oncoming northbound Mound Road traffic. Id. See also Taylor Dep., pp. 23-36, 47-51.
The sight line impediment lasts for a period of at least a second, so if the driver does not look
over again while approaching or driving through the intersection, and thus, not alerted to an
oncoming Mound Road driver traveling at 30-60 miles per hour who runs a red light, the crèche
creates a potentially serious safety hazard. Id.
Plaintiff’s expert, Dr. John F. Wiechel, Ph.D., concurred with Dr. Taylor to the extent
that
If traffic is approaching [the Mound Road intersection] eastbound on Chicago Road, there is the possibility that a driver traveling in this direction who is not obeying traffic signals may not be able to identify the presence of northbound traffic on Mound Road in time to respond to that traffic. In that case, any visibility obstructions may impede this driver’s ability to perceive traffic on Mound Road. . . . The crèche can also be a visibility obstruction in this situation.
Wiechel Report, Plaintiff’s Ex. E, p. 6.15
Plaintiff attempts to discredit Defendants’ argument that safety was the reason for the
denial of Plaintiff’s permit by arguing that the Affidavits given by Hoepfner and Fran Gillett in
opposing Plaintiff’s Motion for Preliminary Injunction are contradicted by transcript of the Road
Commissioners’ meeting of March 6, 2009. According to Plaintiff, Hoepfner and Gillett
indicated in their Affidavits that the Board authorized the denial of Plaintiff’s permit at that
15 After making a personal site visit in connection with Plaintiff’s Motion for Preliminary Injunction, the Court, too, concluded that Plaintiff’s crèche could present a visual obstruction to motorists driving east-bound on Chicago Road of traffic traveling north-bound on Mound Road causing a potential, but serious safety hazard. See Opinion and Order Denying Plaintiff’s Motion for Preliminary Injunction, Dkt. # 24, Satawa v. Bd. of County Road Com’rs of Macomb County, 687 F. Supp. 2d at 700.
36

meeting and since the transcript shows that Hoepfner merely informed the Board of Plaintiff’s permit at that meeting and never sought -- nor was given -- any express authorization to deny it, the Court must conclude that Hoepfner and Gillett lied when they stated in their Affidavits: “John Satawa’s permit to install his nativity scene in the Mound Road right of way was addressed with the Board during the March 6, 2009 RCMC Board Meeting, and the Board authorized Mr. Hoepfner to deny the permit based on RCMC policies and safety concerns.” [Gillett Aff. ¶ 9; see also Hoepfner Aff., ¶ 26 ( “Mr. Satawa’s permit was addressed with the Board during the March 6, 2009 RCMC Board Meeting, and I was authorized by the Board to deny the permit based on RCMP policies and safety concerns.)] Plaintiff apparently ignores the fact that there are two independent clauses in Paragraph 26 of Hoepfner’s (and Paragraph 9 of Gillett’s) Affidavit -- (1) Mr. Satawa’s permit was addressed with the Board during the March 6, 2009 Board meeting; and (2) the Board authorized Mr. Hoepfner to deny the permit based on RCMC policies and safety concerns. Nothing in either Hoepfner’s or Gillett’s Affidavit states that the Board explicitly authorized the denial of the permit at the March 6 meeting. Therefore, there is nothing untruthful in Hoepfner’s and Gillett’s affidavits.
The meeting transcript certainly bears out that Mr. Satawa’s permit “was addressed with the Board during the March 6, 2009 RCMC Board Meeting.” See 3/6/09 Tr., Plaintiff’s Ex. 24. As for Board authorization, as Fran Gillett testified, permit approval is not a matter handled by the Board. “It would... go[] through the administrative process... the highway engineer and the permit department.” [Gillett Dep., pp. 33-34.] Indeed, whether a permit is approved or disapproved by Hoepfner and the permit department would not normally even be brought to the Board’s attention. Id. at 35. And, although the Board had the authority to override Hoepfner’s
37

decision, [Hoepfner Dep., 41], the Board did not do that on March 6, 2009. Id. Rather, Hoepfner was authorized to proceed according to the law. [Gillett Dep., pp. 35-36; see also 3/6/09 Meeting Tr., Plaintiff’s Ex. 24.] Mr. Hoepfner testified that he did not go to the Board seeking the Board’s authorization; he only went to the Board with Satawa’s permit to inform the Board that he was going to be denying the permit because he knew “they’re liable to hear about it.” [Hoepfner Dep., pp. 39, 42.]
To the extent that Plaintiff suggests that safety of Mr. Satawa’s display was never an issue raised by Hoepfner with the Board in considering Satawa’s permit application, Hoepfner’s deposition testimony also dispels any such notion. Mr. Hoepfner’s uncontradicted deposition testimony was that “many, many hours” were spent reviewing Mr. Satawa’s permit application and that he had numerous discussions with the Board members prior to the March 6 Board meeting during the course of day-to-day business about Satawa’s display. [Hoepfner Dep. p. 106-07.] He further testified that during these discussions, he expressed his concerns about the safety of the display being erected on the Mound Road median and recommended that Mr. Satawa’s permit not be approved based on those concerns, and the Board members concurred in that recommendation. Id. at 107. Fran Gillett also testified that there were discussions in the hall and in her office with Hoepfner about the safety concerns raised by Mr. Satawa’s proposed display and that safety was Hoepfner’s main concern. [Gillett Dep. pp. 31, 78-9.]
In sum, the Court does not find that Plaintiff has demonstrated the existence of any material issue of fact with regard to Defendants’ safety reasons for the denial of Mr. Satawa’s permit application such that the safety reasons given by Mr. Hoepfner should be discredited.
“As a general matter, it is clear that a State’s interest in protecting the ‘safety and
38

convenience’ of persons using a public forum is a valid governmental objective.” Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 650, 101 S.Ct. 2559, 2565 (1981); Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357, 376, 117 S.Ct. 855, 866 (1997); Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1022 (9th Cir. 2009), cert. denied, 130 S.Ct. 1569 (2010) (recognizing “a somewhat greater governmental interest in regulating expressive activity on city streets because of the public safety concerns raised by vehicular traffic.”). As this Court previously observed, “even where, as here, the safety hazard exists only in limited circumstances, the potential for even one tragic accident at a busy intersection clearly constitutes a compelling interest which the State must address.” Satawa v. Bd. of County Road Com’rs, 687 F. Supp. 2d at 700.
Further supporting, and extending, this legitimate concern, as Mr. Hoepfner testified, if the Road Commission allowed the installation of Mr. Satawa’s private structure in the Mound Road median, it could set a dangerous precedent in the future because other people would demand permission to install all kinds of private installations of all shapes and sizes in medians all over Macomb County, thereby creating safety hazards all over the county. [See Hoepfner Dep., p. 117.] Courts may consider the cumulative impact if many others decided to engage in similar conduct. See Heffron, 452 U.S. at 652-54, 101 S.Ct. at 2566-67; see also ACORN v. City of Phoenix, supra, 798 F.2d at 1270.
For all of these reasons, the Court finds that Defendants have demonstrated a compelling governmental interest that is significant and legitimate to justify the decision to deny Plaintiff a permit to erect his Nativity display in the Mound Road median.
39

3. The Restriction on Plaintiff’s Speech Was Narrowly-Tailored to Address Legitimate Traffic Safety Concerns. Finally, the Court turns to the question of whether the restriction on Plaintiff’s religious
speech was “narrowly tailored” to address legitimate traffic safety concerns. A restriction may be narrowly tailored for First Amendment purposes even if it restricts more speech or conduct than is absolutely necessary. See Hill v. Colorado, 530 U.S. 703, 726, 120 S.Ct. 2480, 2494 (2000) (“when a content-neutral regulation does not entirely foreclose any means of communication, it may satisfy the tailoring requirement even though it is not the least restrictive or least intrusive means of serving the statutory goal”); Ward v. Rock Against Racism, 491 U.S. 781, 798, 109 S.Ct. 2746, 2757 (1989) (holding that a content-neutral regulation of protected speech must be narrowly-tailored “but it need not be the least restrictive or least intrusive means of doing so.”)
It is important to note here that the Defendants’ action in denying Plaintiff a permit to erect his Nativity display in the Mound Road median does not leave Plaintiff without any comparable viable site for his expression, since, as Mr. Satawa admitted in his deposition, St. Anne’s Church just a few hundred yards from the proposed median site offered to permit a prominent display of the crèche on Mound Road and with virtually no public safety implications, as it did in past years when it was not possible for Plaintiff to display the crèche in this median. [Satawa Dep. p. 55.] In addition, 9 or 10 other business and property owners along this same section of Mound Road made the same offer, including Lyle Elliot Funeral Home, Gazebo Banquet Center, St. Paul’s Lutheran Church, the K of C Council and several individuals. Id.
For all of the foregoing reasons, the Court concludes that Plaintiff has failed to make out a claim of violation of his First Amendment right to freedom of speech. Therefore, summary
40

judgment will be entered in favor of Defendants on Count I of Plaintiff’s Complaint. D. PLAINTIFF’S ESTABLISHMENT CLAUSE CLAIM
In Count II of Plaintiff’s Complaint, Plaintiff asserts a claim of a violation of the Establishment Clause.
The Establishment Clause of the First Amendment to the U.S. Constitution states: “Congress shall make no law respecting an establishment of religion. . . .” Neutrality is the fundamental requirement of the Establishment Clause, which prohibits the government from either endorsing a particular religion or promoting religion generally. See Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 703, 114 S.Ct. 2481, 2491(1994) (“[A] principle at the heart of the Establishment Clause [is] that government should not prefer one religion to another, or religion to irreligion.”); Larson v. Valente, 456 U.S. 228, 244, 102 S.Ct. 1673, 1683 (1982) (“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”); Gillette v. United States, 401 U.S. 437, 450, 91 S.Ct. 828, 836 (1971) (“[T]he Establishment Clause prohibits government from abandoning secular purposes to favor the adherents of any sect or religious organization.”)
In Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105 (1971), the Supreme Court articulated a three-prong test to determine whether a statute or governmental action violates the Establishment Clause.16 In order to pass muster under the Lemon test, the government’s action
16 Although the Supreme Court has articulated other tests in certain particular contexts (e.g., the “endorsement” test, see Allegheny v. ACLU, 492 U.S. 573, 109 S.Ct. 3086 (1989), and the “coercion” test, see Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649 (1992)), the Sixth Circuit expressly has determined that, other than in aid-to-education cases, the rule that this Circuit will adhere to is the traditional Lemon analysis. See ACLU v. Mercer County, 432 F.3d 624, 635 (6th Cir. 2005); see also Hansen v. Ann Arbor Public Schools, 293 F. Supp.2d 780, 804 n.28 (E.D. Mich. 2003).
41

must satisfy all of these three criteria: (1) the government’s action must have a secular purpose; (2) its principal and primary effect must be one that neither advances nor inhibits religion; and (3) it must not foster excessive government entanglement with religion. Lemon, 403 U.S. at 61213, 91 S.Ct. at 2111. The first and second prongs have since been reformulated. After McCreary County v. ACLU, 545 U.S. 844, 125 S.Ct. 2722 (2005), the first is now a “predominant purpose” test. McCreary County, 125 S.Ct. at 2733; id. at 2757 (Scalia, J., dissenting) (“[T]he [McCreary County majority] replaces Lemon’s requirement that the government have ‘a secular . . . purpose’ with the heightened requirement that the secular purpose ‘predominate’ over any purpose to advance religion.” (quoting Lemon, 403 U.S. at 612, 91 S.Ct. 2105)). As such, a religious purpose alone is not enough to motivate a governmental act, but the secular purpose must predominate. See Wallace v. Jaffree, 472 U.S. 38, 56, 105 S.Ct. 2479, 2489 (1986); Lynch v. Donnelly, 465 U.S. 668, 681 n. 6, 104 S.Ct. 1355, 1363 n. 6 (1984).
In order to determine whether a secular purpose exists, courts analyze the government’s stated intent for the disputed law or practice. Snowden v. Town of Bay Harbor Islands, supra, 358 F. Supp. at 1197 (citing King v. Richmond County, Georgia, 331 F.3d 1271, 1276 (11th Cir. 2003)). If there is no evidence of the government’s intent at the time for the practice, then the government may propose a possible secular purpose later. Id.
As indicated above, Defendants have stated that the purpose of their policy and, in particular, their denial of Plaintiff’s application for a permit to erect his Nativity scene is/was a secular one -- to maintain traffic safety. Additionally, Defendants’ avoidance of an Establishment Clause violation is a “secular purpose.” “Actions taken to avoid potential
42

Establishment Clause violations have a secular purpose under the Lemon test.” See Stratechuk v. Bd. of Ed., South Maplewood School Dist., 587 F.3d 597, 604 (3rd Cir. 2009), cert. denied, 131 S.Ct. 72 (2010); Vasquez v. Los Angeles County, 487 F.3d 1246, 1255 (9th Cir.), cert. denied, 552 U.S. 1062 (2007); Roberts v. Madigan, 921 F.2d 1047, 1054 (10th Cir.1990), cert. denied, 505 U.S. 1218 (1992). The Supreme Court has generally granted a government’s stated purpose a great deal of deference, see e.g., Committee for Public Education v. Nyquist, 413 U.S. 756, 773, 93 S.Ct. 2955, 2966 (1973); Lemon v. Kurtzman, 403 U.S. at 613, 91 S.Ct. at 2111, and will not lightly attribute unconstitutional motives to the government particularly where a plausible secular purpose can be discerned. Wallace v. Jaffree, 472 U.S. at 74-75, 105 S.Ct. at 2499-2500; Mueller v. Allen, 493 U.S. 388, 394-95, 103 S.Ct. 3062, 3066-67 (1983). Nor can the Court say that the secular purpose advanced by Defendants is so implausible that they must have actually been motivated by a religious purpose. American Atheists v. Davenport, ___ F.3d ___, 2010 WL 5151630 at * 18 (10th Cir., Dec. 20, 2010) (en banc).
Turning to the Lemon test’s effect prong, the “principal or primary effect” of the challenged policy or practice, this prong asks “whether, irrespective of government’s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval” of religion. Lynch v. Donnelly, supra, 465 U.S. at 690, 104 S.Ct. at 1368 (O’Connor, J. concurring). “While an adjudication of [a policy’s] effect must take into account the perspective of one who is neither Christian nor Jewish, as well as of those who adhere to neither of these religions, the constitutionality of its effect must also be judged according to the standard of a ‘reasonable observer.’” County of Allegheny v. ACLU, 492 U.S. at 620, 109 S.Ct, at 3115. A reasonable observer here would not find that the Road Commission’s policy of not permitting the
43

placement of temporary structures in the medians of major roadways conveys a message of endorsement or disapproval of religion.
The final prong of the Lemon test considers whether the challenged policy or practice “foster[s] an excessive government entanglement with religion.” No such entanglement can be found in this case.
For all of the foregoing reasons, the Court concludes that Defendants’ denial of Plaintiff’s application to display a Nativity scene during the Christmas season on the Mound Road median did not violate the Establishment Clause.17 Therefore, summary judgment will be entered in favor of Defendants on Count II of Plaintiff’s Complaint. E. PLAINTIFF’S EQUAL PROTECTION CLAIM
In Count III of his Complaint, Plaintiff challenges the denial of the permit to erect his Nativity display on the Mound Road median on Equal Protection grounds. He claims that Defendants’ action violates the Equal Protection Clause of the Fourteenth Amendment because it has allowed the Village of Warren Historical Commission’s to erect a gazebo as part of its permanent display on the median just north of Chicago Road and that gazebo poses the same safety concerns as his crèche.
The Equal Protection Clause protects against arbitrary classifications, and requires that similarly situated persons be treated equally. See U.S. Const. Amend. XIV; City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254 (1985). To withstand Fourteenth Amendment scrutiny, government actions that do not interfere with fundamental rights or single
17 The Court intends no opinion, either express or implied, as to whether in the absence of the public safety risk it posed, the display of the crèche constituted a violation of the Establishment Clause.
44

out suspect classifications must bear only a rational relationship to a legitimate state interest. See City of Cleburne, 473 U.S. at 440, 105 S.Ct. at 3254. Plaintiff argues that Defendants’ actions here, should be subject to “strict scrutiny.” However, under equal protection analysis, strict scrutiny is only applied if there is an infringement of a fundamental right or discrimination against a suspect class. “If a protected class or fundamental right is involved, this Court must apply strict scrutiny, but where no suspect class or fundamental right is implicated, this Court must apply rational basis review.” Midkiff v. Adams County Regional Water District, 409 F.3d 758, 770 (6th Cir.2005) (citing Hadix v. Johnson, 230 F.3d 840, 843 (6th Cir.2000)).
Plaintiff here contends that strict scrutiny applies because Defendants’ actions infringe on First Amendment rights. However, because the Court has already determined that Plaintiff does not have a meritorious Free Speech or Establishment Clause claim, his Equal Protection claim is subject only to rational basis scrutiny. See Teen Ranch, Inc. v. Udow, 389 F. Supp. 2d 827, 841 (W.D. Mich. 2005), aff’d 479 F.3d 403 (6th Cir.), cert. denied, 552 U.S. 1039 (2007) ; Fighting Finest, Inc. v. Bratton, 95 F.3d 224, 231 (2d Cir.1996) (where the plaintiffs have failed to show a violation of the First Amendment, strict scrutiny is inapplicable and the challenged statute is evaluated under rational basis review); see also Johnson v. Robison, 415 U.S. 361, 375 n. 14, 94 S.Ct. 1160, 1170 n. 14 (1974) (“Since we hold that the Act does not violate appellee’s right of free exercise of religion, we have no occasion to apply to the challenged classification a standard of scrutiny stricter than the traditional rational-basis test”); Locke v. Davey, 540 U.S. 712, 721 n. 3, 124 S.Ct. 1307, 1313 n. 3 (2004) (where a plaintiff’s First Amendment Free Exercise claim has failed, only rational basis scrutiny applies in subsequent review of an equal protection fundamental right to religious free exercise claim based on the same facts); Wirzburger v.
45

Galvin, 412 F.3d 271, 282-83 (1st Cir. 2005), cert. denied, 546 U.S. 1150 (2006) (same). Under a rational basis analysis, “a statutory classification that neither proceeds along
suspect lines nor infringes constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Bowman v. United States, 564 F.3d 765, 775-76 (6th Cir. 2008), cert. denied, 130 U.S. 55 (2009) (citing FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 2101 (1993).) The question under the rational basis test is “whether the regulation at issue is ‘rationally related to legitimate government interests.’” Id. “[C]ourts hold statutes unconstitutional under this standard of review only in rare or exceptional circumstances.” Id. All that is required is that a classification be “reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation and that all persons similarly circumstanced be treated alike.” Id.
As indicated above, the Defendants denied Plaintiff a permit for the erection of his Nativity display in the interest of insuring the safety of vehicular traffic. And, as indicated, public safety is a valid governmental objective. Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., supra; Schenck v. Pro-Choice Network of W. N.Y., supra; Long Beach Area Peace Network v. City of Long Beach, supra.
Relying solely upon Defendant Hoepfner’s statement in his deposition that, like Mr. Satawa’s crèche, he viewed the gazebo as an encroachment in the County’s right-of-way, Plaintiff argues that the dissimilar treatment afforded him and his crèche is discriminatory, the latter structure being allowed to remain in the median while his structure was not. However, in making this argument, Plaintiff overlooks the dissimilarities between the two structures.
46

Unlike Plaintiff’s home-made crèche for which Plaintiff sought a permit to temporarily display during the Christmas season, the gazebo is a permanent structure that was installed in compliance with all adequate safety measures and all necessary permits, see Hoepfner Aff., ¶ 34, and is insured by a $5 million insurance policy held by the City of Warren, which names the Road Commission as an additional insured. See Defendants’ TRO Ex. I. Furthermore, the Court’s observation was that the gazebo is situated and structured in such a way that visibility of south-bound Mound Road traffic is not obscured if one is traveling west-bound on Chicago Road through the signal-controlled intersection, see Satawa v. Bd. of County Road Com’rs of Macomb County, 687 F. Supp. 2d at 687, and Plaintiff has not presented evidence to the contrary. Conversely, both Defendants’ expert and Plaintiff’s expert, as well as the Court, found that Plaintiff’s crèche could present a visibility obstruction that would impede the view of a driver proceeding eastbound on Chicago Road of oncoming northbound Mound Road traffic. Defendants’ denial of a permit to erect the crèche is rationally-related to eliminating this potential safety hazard. Accordingly, the Court finds no legal merit in Plaintiff’s Equal Protection claim.
CONCLUSION For all of the foregoing reasons, IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment [Dkt. # 41] is GRANTED and Plaintiff’s Motion for Summary Judgment [Dkt. # 37] is DENIED. Accordingly,
47

IT IS FURTHER ORDERED that this case be DISMISSED, in its entirety, WITH

PREJUDICE.

Dated: April 19, 2011

s/Gerald E. Rosen Chief Judge, United States District Court

I hereby certify that a copy of the foregoing document was served upon counsel of record on April 19, 2011, by electronic and/or ordinary mail.

s/Ruth A. Gunther Case Manager

48

 
 2:09-cv-14190-GER-PJK Doc # 48 Filed 04/19/11 Pg 1 of 2 Pg ID 1101

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN SATAWA,

Plaintiff,

No. 09-CV-14190-DT

vs.

Hon. Gerald E. Rosen

BOARD OF COUNTY ROAD COMMISSIONERS OF MACOMB COUNTY, et al.,

Defendants. _________________________________/

JUDGMENT

At a session of said Court, held in

the U.S. Courthouse, Detroit, Michigan

on

April 19, 2011

PRESENT: Honorable Gerald E. Rosen Chief Judge, United States District Court

The Court having this date entered an Opinion and Order granting Defendants’ Motion

for Summary Judgment, denying Plaintiff’s Motion for Summary Judgment, and dismissing

Plaintiff’s Complaint, in its entirety, with prejudice,

NOW, THEREFORE,

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that a JUDGMENT OF

DISMISSAL, WITH PREJUDICE, be and hereby is entered.

Dated: April 19, 2011

s/Gerald E. Rosen Chief Judge, United States District Court

2:09-cv-14190-GER-PJK Doc # 48 Filed 04/19/11 Pg 2 of 2 Pg ID 1102
I hereby certify that a copy of the foregoing document was served upon counsel of record on April 19, 2011, by electronic and/or ordinary mail.
s/Ruth A. Gunther Case Manager

 
 2:09-cv-14190-GER-PJK Doc # 62 Filed 11/29/12 Pg 1 of 3 Pg ID 1194

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

JOHN SATAWA,
Plaintiff,
v.
BOARD OF COUNTY ROAD COMMISSIONERS OF MACOMB COUNTY, et al.,
Defendants.

Case No. 2:09-cv-14190
Hon. Gerald E. Rosen
STIPULATION OF DISMISSAL OF CLAIMS AS AGAINST DEFENDANT FRAN GILLETT

AMERICAN FREEDOM LAW CENTER

ALOIA & ASSOCIATES, P.C.

Robert J. Muise, Esq. (P62849)

Benjamin J. Aloia (P54424)

P.O. Box 131098

Aaron

M. Keyes (P68757)

Ann Arbor, MI 48113

48 S. Main Street, Suite 3

rmuise@americanfreedomlawcenter.org

Mt. Clemens, MI 48043

(734) 635-3756

aloia@aloiaandassociates.com

Counsel for Plaintiff

(586)

783-3300

Counsel for Defendants

THOMAS MORE LAW CENTER

Erin Mersino, Esq. (P70866)

24 Frank Lloyd Wright Drive

P.O. Box 393

Ann Arbor, MI 48106

emersino@thomasmore.org

(734) 827-2001

Counsel for Plaintiff

______________________________________________________________________________

Pursuant to Rule 41(a)(1)(A)(ii) of the Fede ral Rules of Civil Proce dure, the p arties

hereby stipulate to the dismissal with prejudice of all claims against Defendant Fran Gillett in her

individual capacity.

Each party shall bear his or her own costs.

- 1 -

2:09-cv-14190-GER-PJK Doc # 62 Filed 11/29/12 Pg 2 of 3 Pg ID 1195

IT IS SO STIPULATED:

AMERICAN FREEDOM LAW CENTER

ALOIA & ASSOCIATES, P.C.

By: /s/ Robert J. Muise Robert J. Muise, Esq.

By: /s/ Benjamin J. Aloia Benjamin J. Aloia, Esq.

Counsel for Plaintiff

Counsel

for Defendants

THOMAS MORE LAW CENTER

By: /s/ Erin Mersino Erin Mersino, Esq.

Counsel for Plaintiff

- 2 -

2:09-cv-14190-GER-PJK Doc # 62 Filed 11/29/12 Pg 3 of 3 Pg ID 1196 CERTIFICATE OF SERVICE
I hereby certify that on Nove mber 29, 2012, a copy of the foregoing was filed electronically. Notice o f this filing will be sen t to all p arties for whom counsel has entered an appearance by operatio n of the co urt’s electronic filing sy stem. Parties m ay access this filing through the court’s system . I fu rther certify that a copy of the foregoing has been served by ordinary U.S. m ail upon all parties for whom counsel has not yet entered an appearanc e electronically: None.
AMERICAN FREEDOM LAW CENTER /s/ Robert J. Muise Robert J. Muise, Esq. (P62849)
- 3 -

 
 2:09-cv-14190-GER-PJK Doc # 64 Filed 01/02/13 Pg 1 of 3 Pg ID 1198

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

JOHN SATAWA,
Plaintiff,
v.
BOARD OF COUNTY ROAD COMMISSIONERS OF MACOMB COUNTY, et al.,
Defendants.

Case No. 2:09-cv-14190 Hon. Gerald E. Rosen STIPULATION OF DISMISSAL

AMERICAN FREEDOM LAW CENTER

ALOIA & ASSOCIATES, P.C.

Robert J. Muise, Esq. (P62849)

Benjamin J. Aloia (P54424)

P.O. Box 131098

Aaron

M. Keyes (P68757)

Ann Arbor, MI 48113

48 S. Main Street, Suite 3

rmuise@americanfreedomlawcenter.org

Mt. Clemens, MI 48043

(734) 635-3756

aloia@aloiaandassociates.com

Counsel for Plaintiff

(586)

783-3300

Counsel for Defendants

THOMAS MORE LAW CENTER

Erin Mersino, Esq. (P70866)

24 Frank Lloyd Wright Drive

P.O. Box 393

Ann Arbor, MI 48106

emersino@thomasmore.org

(734) 827-2001

Counsel for Plaintiff

______________________________________________________________________________

Pursuant to the se ttlement agreement of the parties and Rule 41( a)(1)(A)(ii) of the

Federal Rules of Civil Procedure, the par ties hereby stipulate to the dismissal of all cla ims

against all remaining Defendants with prejudice and without costs.

- 1 -

2:09-cv-14190-GER-PJK Doc # 64 Filed 01/02/13 Pg 2 of 3 Pg ID 1199

IT IS SO STIPULATED:

AMERICAN FREEDOM LAW CENTER

ALOIA & ASSOCIATES, P.C.

By: /s/ Robert J. Muise Robert J. Muise, Esq.

By: /s/ Benjamin J. Aloia Benjamin J. Aloia, Esq.

Counsel for Plaintiff

Counsel

for Defendants

THOMAS MORE LAW CENTER

By: /s/ Erin Mersino Erin Mersino, Esq.

Counsel for Plaintiff

- 2 -

2:09-cv-14190-GER-PJK Doc # 64 Filed 01/02/13 Pg 3 of 3 Pg ID 1200 CERTIFICATE OF SERVICE
I hereby certify that on Janua ry 2, 2013, a copy of the foregoing was filed electronically. Notice of this filing will be sent to all par ties for whom counsel has en tered an appearance by operation of the court’s electr onic filing system. Parties m ay access this filing through the court’s system. I further certify that a copy of the foregoing has been served by ordinary U.S. mail upon all parties for whom counsel has not yet entered an appearance electronically: None.
AMERICAN FREEDOM LAW CENTER /s/ Robert J. Muise Robert J. Muise, Esq. (P62849)
- 3 -

 
 2:09-cv-14190-GER-PJK Doc # 65 Filed 01/03/13 Pg 1 of 1 Pg ID 1201

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN SATAWA,
Plaintiff,
v.
MACOMB COUNTY ROAD COMMISSION, et al,
Defendants.

CIVIL ACTION NO. 09-14190 HONORABLE GERALD E. ROSEN
/

ORDER GRANTING STIPULATION OF DISMISSAL (DOC. 64)

On January 02, 2013 the parties filed a Stipulation of Dismissal (Doc. 64). Therefore,
IT IS ORDERED that case is DISMISSED WITH PREJUDICE and without costs to any party.
SO ORDERED.

Dated: January 3, 2013

s/Gerald E. Rosen GERALD E. ROSEN UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to the attorneys of record on this date, January 3, 2013, by electronic and/or ordinary mail.
s/Julie Owens Case Manager, (313) 234-5135

 
 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 12a0236p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

JOHN SATAWA,

;

Plaintiff-Appellant,

 



v.



>

MACOMB COUNTY ROAD COMMISSION; FRAN 

GILLETT, individually and in her official capacity as Chairperson, Macomb County

  

Road Commission; ROBERT HOEPFNER,



individually and in his official capacity as



Chairperson, Macomb County Road Commission,

  

Defendants-Appellees. 1

No. 11-1612

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:09-cv-14190—Gerald E. Rosen, Chief District Judge.

Argued: May 30, 2012

Decided and Filed: August 1, 2012 Before: BOGGS and COLE, Circuit Judges; and OLIVER, District Judge.*

_________________

COUNSEL
ARGUED: Robert Joseph Muise, AMERICAN FREEDOM LAW CENTER, Ann Arbor, Michigan, for Appellant. Benjam in J. Aloia, ALOIA & ASSOCIATES, P.C., Mount Clemens, Michigan, for Appellees. ON BRIEF: Robert Joseph Muise, THOMAS MORE LAW CENTER, Ann Arbor, Michigan, for Appellant. Benjamin J. Aloia, ALOIA & ASSOCIATES, P.C., Mount Cl emens, Michigan, for Appellees. Steven W. Fitschen, THE NATIONAL LEGAL FOUNDATION, Virginia Beach, Virginia, for Amicus Curiae.

*The Honorable Solomon Oliver, Jr., Chief United States District Judge for the Northern District of Ohio, sitting by designation.
1

No. 11-1612

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_________________
OPINION _________________
BOGGS, Circuit Judge. The Macom b County Road Com mission faced a dilemma. The Freedom From Religion Foundation, an organization dedicated to “protect[ing] the fundamental constitutional principle of separation of church and state,” had written a letter objecting to a private citizen’s placing a crèche on a sixty-foot-wide median at Christmas time, as the citizen and his fam ily had done for m ore than sixty years. The county immediately ordered the crèche removed. In response, the Thomas More Law Center, an organization dedicated to “restor[ing] and defend[ing] America’s Judeo-Christian heritage,” took up the citizen’s cause and applied for a formal permit to display the crèche. After seeking legal advice, the county denied the permit because, it stated, the crèche “clearly displays a religious m essage, [and thus displaying it on the median] would be a violation of the Establishment Clause of the First Amendment.” The citizen filed suit, claiming that denial of the permit violated his free-speech rights, the Establishment Clause, and his equal-pr otection rights. During litigation, the county changed its explanation for denying the citizen’s perm it, claiming that safety, not the crèche’s religious connotation, was—and had always been—the reason for its decision. Relying on this explanation, the district court granted summary judgment for the county. For the reasons outlined below, we affirmthe district court’s grant of summary judgment on Satawa’s Establishment Clause claim, but reverse on all other grounds.
I
In 1945, Frank Krause and Joseph Satawa built a m anger to house a set of statutes donated to St. Anne’s Parish in W arren, Michigan. The statues depicted the birth of Jesus Christ. With the Village’s permission, Krause and Satawa put the manger, with the statues inside, on a public m edian at the intersection of Mound Road and Chicago Road.1 They did so each year until their deaths in the late 1940s and 1965,
1The manger and figures, together, are called a nativity scene, or crèche.

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respectively. Joseph Satawa’s son and son-in-law, John Satawa2 and Lawrence Green, continued this practice, assembling the crèche in the same place every year at Christmas time.3 They asked for, and received, perm ission from Warren officials to build the display in the late 1970s, 1994, and 1995. Satawa and Green have not sought peirsmsion since 1995, however, because a City of Warren police officer “inform[ed] [Satawa] that the [police] department was well aware of the nativity scene tradition and its presence on the median in Warren and that it was not necessary to send any letters in the future.”
The median that houses the crèche separates four l anes of northbound traffic from four lanes of southbound traffic on Mound Road. 4 It is sixty feet wide, and landscaped with grass, trees, and flowers. The Board of County Road Commissioners of Macomb County (“the Board”) has jurisdiction over the m edian because Mound Road is a Macomb County road.5 The site of the cr èche itself is just south of Mound Road’s intersection with Chicago Road, a two-lane, east-west street with a thirty-mileper-hour speed limit. Traffic lights regulate the intersection from every direction.
The crèche is nine-and-one-half feet tall, eight feet wi de, and eight feet deep.6 It has front and back windows, and is illuminated at night. On the crèche is a sign that reads: “A Blessed Christmas, St. Anne Parish,” and inside there is a pl aque, with the words: “In Memory of Joseph and Rose Satawa.” The crèche sits immediately north of a stand of pine trees, which is twenty-nine feet, four inches wi de and fifteen feet tall. Behind the pine trees are two park benches, and at lea st one commemorative plaque, discernable only from the median. Also on the same section of median as the crèche are

2From this point forward, all references to “Satawa” are to John Satawa.
3The only year since 1945 that the crèche ha s not appeared in the m edian is 1996, when significant road construction made it impossible to erect the display.
4The speed limit on Mound Road is 50 MPH, and more than 82,600 cars use the road each day.
5The Board comprises three members: a Chairperson, a Vice-Chairperson, and a Commissioner. It has “responsibility for overseeing the Road Com mission’s budget and establishing and carrying o ut policies with regard to all matters pertaining to the County roads.”
6As the district court explained, the crèche is only eight feet tall, but it sits on an eighteen-inchhigh platform.

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several pieces of old farm equipment and wagons, installed by the “Friends of the Village,” a citizens’ group dedi cated to m aintaining Warren’s “village” character. Across Chicago Road to the north of the crèche is a gazebo and small courtyard, built by the Village of Warren Historical Commission, and a historical marker, again with text readable only from the median, put in place by the State of Michigan.
On December 10, 2008, the Board received, by fax, a letter from the Freedom From Religion Foundation. The letter, supposedly writ ten on behalf of “a concerned Macomb County resident,” argued that the crèche violate d the Establishment Clause because “[d]isplaying an inherently Christian message at a busy intersection on Countyowned property unmistakably sends the m essage that Macomb County endorses the religious beliefs embodied in the display.” Accordingly, the Freedom From Religion Foundation “ask[ed] that [the Board] im mediately . . . rem ove the display to private property.”
In response, Macomb County Highway Engineer Robert Hoepfner dispatched Road Commission Permit Inspector Joe Dana. Dana reported back and told Hoepfner that, indeed, the crèche was where the Freedom From Religion Foundation said it was, and that Satawa’s phone numbe r was on a plaque attached to the display. Hoepfner called Satawa and explained that, because Satawa did not have a permit, Satawa would have to disassemble the crèche. A formal, written demand to remove the crèche within thirty days followed on Decem ber 11, 2008. Satawa com plied after the end of t he holiday season.
One month later, Satawa went to the Road Com mission’s office to apply for a permit to display the crèche the following year. Road Commission staff helped him fill out an application. On February 7, 2009, however, the Road Commission returned the application to Satawa, explaining that it wa s incomplete, and enclosing a new application. W ith help from the Thom as More Law Center, Satawa filled out the application, explaining in detail—and illustrating with photographs—the crèche’s location. In his application, Satawa offered to pay all electrical costs associated with the display, to buy insurance, and “to post a sign at the display which states clearly that it

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is his private display and not the display of Macomb County, the City of Warren, or any
other government entity.”
Hoepfner personally reviewed Satawa’s application. He sought legal advice from
an attorney for the county and brought the issue of Satawa’s perm it application to the
Board’s attention during the “new business” portion of a regularly scheduled meeting
on March 9, 2009. There, he explained:
MALE SPEAKER: This is an interesting one, last year a gentleman for the last 60 years has been installing a nativity scene at Mound Road and Chicago Road in the m edian of Mound Road, I received a letter from some anti-nativity scene law firm asking me to get rid of it. MALE SPEAKER: (Inaudible) Wisconsin? MALE SPEAKER: Yeah. MALE SPEAKER: Yeah. MALE SPEAKER: So I wrote the man a letter and ordered him to remove the nativity scene from the right-of-way. He has come in now and applied for a permit to install the nativity scene next year. His cover letter is from a law firm, the Thomas More Law Center. I’ve contacted Ben Aloia and asked him to research it. Ben has i nformed me that we should not allow this nativity scene to be installed, and he has given me some language that I should [sic] respond to this perm it. I intend to do that. This probably won’t go away and I suspect they’ll sue us. FEMALE SPEAKER: All we can do is obey the law.7
This was the only time that the Board formally discussed Satawa’s permit application.
Although Hoepfner m entioned only the crèche’s religious aspects whe n he
brought Satawa’s application to the Boa rd’s attention, he claimed in his deposition,
thirteen months later, that the primary reason for denying Satawa a permit was that the
crèche raised a safety concern. In particular, he claim ed to be worried that a vehicle
might strike the crèche. Hoepfner m ade clear: “I didn’t deny [the perm it] for sight
problems. It was an encroachment within the right of way . . . that’s the reason I denied
it.”

7The district court noted that this transcript was like ly inadmissible at the tim e of summaryjudgment briefing because it had not been properly authenticated. It reasoned, however, that it could consider the transcript, on the assumption that the parties would reduce it to admissible form at trial.

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Hoepfner also insisted in hi s deposition that he had separate discussions with each of the Road Com missioners about Satawa’s application, outside of the Board’s regularly scheduled meetings. (“Q: Did you ever have any discussions with any Board member outside of the Board meetings regarding the nativity scene permit? A: All of the Board Members.”). These discussions, he claimed, lasted “many, many hours,” and focused on his belief that the crèche posed a traffic hazard. The district court apparently took this testimony at face value.
It is true that Board Chairwoman Fran Gillett testified that she understood that Hoepfner was concerned about safety. However, she also indicated that she “first became aware of [the crèche] . . . when [the Board] had a copmlaint the Christmas before last [December 2008], and then at that point [she]didn’t hear anything more until 2009 at [the March 6 Board] m eeting.” (emphasis added). And yet, she claimed that she learned of Hoepfner’s safety concer ns through casual, passing discussions in the hallway. It is not likely that these discussions took place aft er the meeting, since Hoepfner responded to Satawa’s permit application in writing the next business day after the Board meeting, March 9, 2009.8 At best, then, Hoepfner and Gillet’s testimony is confusing. At worst, one or the other is completely mistaken.
In any event, safety concerns are whollyabsent from the letter that Hoepfner sent Satawa on March 9, 2009. There, addressing Satawa’s lawyer, Hoepfner wrote:
Dear Mr. Muise:
Please allow this let ter to serve as the Board of County Road Commissioners for the County of Macomb’s formal denial of the January 7, 2009 Application for Perm it submitted by John Satawa to erect a nativity scene in the Mound Road right of way. Given the religious nature of your nativity scene, the Road Commission of Macomb County as a governmental agency must weigh whether or not the approval of such a permit would be deemed a violation of the First Am endment of the United States Constitution.
A statute or practice that touches on religion, if it [is] to be permissible under the establishm ent of religion clause of the Constitut ion’s First
8March 6, 2009 was a Friday.

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Amendment, (1) must have a secular purpose, (2) must neither advance nor inhibit religion in its principal or prim ary effect, and (3) must not foster an excessive entanglem ent of governm ent with r eligion. In Allegheny v. ACLU of Pittsburg[h] , 492 U.S. 573 (1989), the U.S. Supreme Court held that “ther e is no doubt, of course, that the crèche (nativity scene) itself is capable of communicating a religious message.”
Since the nativity scene Mr. Satawa desires to place in the right of way clearly displays a religious m essage, this would be a violation of the Establishment Clause of the First Amendment: “Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from ‘making any a dherence to a religion relevant in any way to a person’s standing in the political community.’” Allegheny, at 594.
The Road Commission of Macomb County cannot permit you to display this nativity scene in the Roa d Commission’s right of way. This undoubtedly would be inter preted as our endorsem ent of religion, in violation of the Establishment Clause of the U.S. Constitution.
Thank you for your attention to this m atter. Please do not hesitat e to contact me with any questions or concerns.
Sincerely,
/s/
Robert P. Hoepfner, P.E. County Highway Engineer
Satawa filed this lawsuit in the Eastern District of Michigan on October 23, 2009.
He claimed that the Board violated his free-speech rights, the Establishment Clause, and
the Equal Protection Clause by denying his permit. He sought declaratory and injunctive
relief and nom inal damages. A Motion for Tem porary Restraining Order and
Preliminary Injunction soon followed. The district judge, after hearing oral argument
and conducting a “lengthy site visit,” denied the motion. He first reasoned that, even if
the median were a public forum, the state’s interest in traffic safety was compelling, and
denial of the permit was narrowly tailored to suit that interest because there were other
places that Satawa could display the crèche. Thus, the court held, Satawa could not
show that he was likely to succeed on t he merits, and was not entitled to a tem porary
restraining order or a prelim inary injunction on hi s free-speech claim. Notably, the
district court found that Hoepfner’s stated concern about a vehicle striking t he crèche

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was “purely speculative,” and thus not a compelling state interest. Instead, it focused on the possibility, apparently first raised during briefing or argument on the Motion for Temporary Restraining Order and Preliminary Injunction,9 that the crèche could impede sight lines and, thus, increase the risk of two or more vehicles colliding.
The district court similarly held that Satawa’s Establishment Clause claim was not likely to succeed because Satawa could not satisfy t he three-part Lemon test—the Board’s denial had a secular purpose, tra ffic safety; the policy of forbidding all temporary structures did not endorse, or convey disapproval of, religion; and there was no entanglement. See Lemon v. Kurtzman, 403 U.S. 602 (1971).
When it denied Satawa’s m otion, the district court also ordered the parties to show cause why it should not convert its preliminary order to a final judgment on the merits, pursuant to FED. R. CIV. P. 65(a)(2). Satawa requested the opportunity to develop the factual record further, so that he could challenge the veracity of the Board’s asserted safety justification, and press his Establishm ent Clause and equal-protection claim s, which he did not brief in his temporary-restraining-order motion. The court granted the request, discovery opened and closed, and the parties cross-m oved for sum mary judgment.

9It is not clear when this “additional justification” first appeared. The district court, when discussing the increased risk of vehicles colliding, cited a paragraph from Hoepfner’s affidavit, attached to the Board’s response to Satawa’s Motion for Temporary Restraining Order or Preliminary Injunction, dated October 30, 2009. That paragraph, however, is a general statem ent, explaining why the Board generally does not allow structures in its rights of way. BoardResp. to Request for Temporary Restraining Order at 33 (“Roadside control is necessary to improve highway safety, to maintain or improve site line distances, expedite the free flow of traffic, safeguard present and future highway investm ent, conserve abutting property values, and to preserve the attractiveness of the landscape itnhe right of way.”). Neither Hoepfner’s affidavit nor the Board’s briefing in the district court dealt specifically with an increased risk of vehicles colliding. Rather, both focused on the possibility that a vehicle could strike the crèche itself. Id. at 12 (“Certainly th e Plaintiff’s structure itself, regardless of content, could be struck by a vehicle travelling down Mound Road or in the intersection and cause serious dam age not only to a travelling vehicle, but also any passengers in a vehicle.”). The closest that the Board came to arguing its sightobstruction rationale was a citation to the MichiganRoad Design Manual in its October 302, 009 response, suggesting “that a fla t, smooth unobstructed area . . . is highly desirable and significantly im proves highway safety.” But the record contains no explicit m ention of the vehicle-on-vehicle-collision justification that the Board now presses until thedistrict court, based on its own observations, found that the display could obstruct a driver’s line of sight. It made this finding in its order denying Satawa’s motion for a preliminary injunction, dated December 28, 2009. Only after that order did the parties commission expert reports discussing the possibility that thecrèche could obstruct a driver’s view. These reports first appear in the parties’ summary-judgment submissions, dated July 29, 2010, July 30, 2010, and Augus1t 9, 2010.

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The district court granted summary judgment for the Board on April 19, 2011. It held, first, that the median was not a public forum, since it was not “a place intended for bringing citizens together to exchange ideas.” Thus, the court reasoned, the Board could restrict speech, subject to reasonable and viewpoint-neutral tim e, place, and manner restrictions. The Board’s stated traffic-safety concern satisfied this standard.
The court also believed that, even if the m edian were considered a traditional public forum, the Board had a com pelling interest in prom oting traffic safety, and denying the permit was a narrowly tailored means of achieving that goal. This time, the judge had dueling expert reports to consider in reaching his conclusion. The experts first agreed that the crèche posed no enhanced risk to drivers who obeyed the traffic signals. They also agreed, however, that if a driver traveling northbound on Mound Road ran a red light, and another driver traveling eastbound on Chicago Road at six to ten m ilesper-hour below the posted speed lim it looked for traffic before coming to the crèche, then passed the crèche and continued through the intersection without again c hecking for traffic, the Chicago Road driver would not be able to see the Mound Road driver’s car running the red light, and therefore m ight not be able to prevent a collision as effectively as he could without the crèche. The district court acknowl edged that this possibility was remote, but reasoned that “the potential for even one tragic accident at a busy intersection clearly constitutes a com pelling interest which the State m ust address.” The district court also e xpressed concern that, if the Board had to perm it Satawa to install his crèche, it would be required to al low “all kinds of private installations of all shapes and sizes in medians all over Macomb County.” The Board’s denying Satawa’s permit, the district court reasoned, was narrowly tailored because “the Defendants’ action in denying Plaintiff a perm it to erect his Nativit y display in the Mound Road median does not leave Plaintiff without any comparable viable site for his expression.”10
The district court also granted summa ry judgment for the Board on Satawa’s Establishment Clause and equal-protection claim s. The form er, it reasoned, failed
10A number of local businesses offered to display the crèche.

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because the government had a valid stated purpose of traffic safety; the primary effect of denying the permit did not convey the m essage that the governm ent endorsed, or disapproved of, religion; and there was no entanglem ent. Satawa’s equal-protection claim failed because the Board’s decision to deny the permit was rationally related to the legitimate government interest of traffic safety. Satawa appeals.
II
Summary judgment is appropriate when “ the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). We review a district court’s grant of summary judgment de novo, construing the facts, and drawing all reasonable inferences, in the non-moving party’s favor. ACLU of Ky. v. Mercer Cnty., Ky., 432 F.3d 624, 628 (6th Cir. 2005).
III
Neither the federal governm ent nor the states m ay “abridg[e] the freedom of speech.” U.S. C ONST. amend. I; Stromberg v. California, 283 U.S. 359, 368 (1931) (formally incorporating Free Speech Clause). 11 This does not m ean, however, that anyone may express himself however he wants, wherever he wants, whenever he wants. The government may regulate even constitutionally protected speech, as long as that regulation hinges on a weighty enough government interest, tailored carefully enough to account for the competing values at stake. What “enough” is depends on what the individual wants to express and where he wants to express it, for “the character of every act depends upon the circum stances in which it is done.” Schenck v. United St ates, 249 U.S. 47, 52 (1919) (Holmes, J.).
We have reduced these general principles to the three-part test that we apply here. First, we decide whether the First Amendment protects the speech or expression

11Although “[t]he First Amendment literally forbids the abridgment only of ‘speech,’ .. . we have long recognized that its protection does not end at the spoken or written word. . . . [C]onduct m ay be sufficiently imbued with elem ents of com munication to fall within the scope of the First . . . Amendment[].” Texas v. Johnson, 491 U.S. 397, 404 (1989). “There is no doubt, of course, that the crèche itself is capable of com municating a [constitutionally protected] religious m essage.” Cnty. of Allegheny v. ACLU of Pittsburgh, 492 U.S. 573, 598 (1989).

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at issue. Then, we fix the appropriatelevel of scrutiny by specifying what kind of forum the speaker wants to use. Finally, we determine whether the government’s challenged action was constitutional, in light of the standards that apply to the relevant forum. See Miller v. City of Cincinnati, 622 F.3d 524, 533 (6th Cir. 2010).
A
The Board concedes that the crèche is protected religious expression. Appellees’ Br. at 27; see also Allegheny, 492 U.S. at 598. Our analysis, therefore, begins with the question of how to define the m edian. The Suprem e Court has divided governm ent property into three categories, for forum -analysis purposes. First, property like the “streets and parks which have immemorially been held in trust for the use of the public, and, time out of mi nd, have been used for purposes of assem bly, communicating thoughts between citizens, and discussing public questions” is considered a traditional public forum. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n , 460 U.S. 37, 45 (1983) (internal quotation marks omitted). In such a forum, the government may prevent expression because of its content only if the government “show[s] that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Ibid. The government may, however, “enforce regulations of the time, place, and manner of expression whi ch are content-neutral, are narrowly tailored to serve a significant government interest, and leave open am ple alternative channels of communication.” Ibid.
Second, “public property which the state has opened for use by the public as a place for expressive activity,” is called a designated public forum. Ibid. Although the government did not have to create the designated public forum in the first place, and “need not indefinitely retain the open character of the facility,” once it opens its doors to some expression, it must treat the designated public forum like a traditional public forum until i t closes its doors again. Id. at 45–46. Thus, during the tim e that a designated public forum is open t o the public, “[r]easonable time, place and m anner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest.” Id. at 46.

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Finally, if a piece of government property “is not by tradition or designation a forum for public communication . . . the state m ay reserve the forum for its intended purpose.” Ibid. In such a nonpublic forum , “it is . . . black-letter law that . . . [the government] can exclude speakers on the basis of their subject m atter, so long as the distinctions drawn are viewpoint neutral and reasonable in light of the purpose served by the forum.” Davenport v. Wash. Educ. Ass’n, 551 U.S. 177, 189 (2007).
Determining what kind of forum a particular piece of property is may seem like an exercise in line-drawing, and in a sense it is: we m ust decide which of the three categories above best describes the Mound Road m edian so that we can apply the appropriate level of scrutiny to the Board’s deinal of Satawa’s permit. Still, for purposes of the decision-making process, it is perhaps e asier to think of a continuum . “At one end of the spectrum ” is the prototypical traditional public forum , a public spa ce “immemorially . . . held in trust for the use of the public, and, time out of mind, . . . used for purposes of assem bly, communicating thoughts between citizens, and discussing public questions.” Perry, 460 U.S. at 45. Public parks, for inst ance, fall into this category. At the other end is property that the government owns, has always owned, and does not ordinarily open to the public. In such a forum, “[a]ccess . . . can be restricted as long as the restrictions are reasonable and are not a n effort to suppress expression merely because public officials oppose the speaker’s view.”Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 800 (1985). The inside of a governm ent building, used as office space, would fall in this category. Many, if not most, fora fall somewhere between these extremes. We need not determine precisely where on the spectrum the Mound Road median lies, only which broad category describes it best.
Beyond the ge neral principles of forum analysis discussed above, little persuasive, and no binding, authority guides our analysis. 12 Perhaps the case m ost

12Nor can we dispose of the forum -analysis issue with Satawa’s suggestion that, because Michigan law defines the median as part of “the street,” the Mound Road median is automatically a public forum. Our task is to exam ine the characteristics of the m edian, not blindly to follow Michigan’s description of a given pieceof property. See Boardly v. U.S. Dep’t of Interio,r615 F.3d 508, 514–15 (D.C. Cir. 2010) (rejecting proposition that, because national parks are called parks, they all autom atically qualify as traditional public fora).

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similar to ours is Snowden v. Town of Bay Harbor Islands, Fla., 358 F. Supp. 2d 1178 (S.D. Fla. 2004). There, a wom an applied for perm ission to display a crèche near a menorah on a “grassy area approximately 760 feet long by 140 feet wide, dividing State Road 922.” Id. at 1184. The grassy area had “no public parking spaces, no sidewalks, no benches, no bathrooms, and no recreational facilities,” just grass. Ibid. The town refused to consider her application and she sued. The district court granted her motion for a preliminary injunction, but did not decide what kind of forumthe grassy area was, holding instead that, whether the area was a non-public forum, or a designated public forum later closed to private religious speech (the two options that it thought tenable), the standard of review would be the same in the circumstances presented. Id. at 1194. The Snowden court ultimately found that Snowden was likely to succeed on her claim that the Town’s denying her application wasmi permissible viewpoint discrimination and thus violated the First Amendment. Id. at 1195–96.
But even if Snowden had decided what kind of forum t he grassy area was, its reasoning would be only marginally helpful, since there are critical factual differences between the grassy area and the Mound Road median. Unlike the Mound Road median, the grassy area in Snowden had “no sidewalks, no benches . . . and no recreational facilities.” Id. at 1184. It m ade no “apparent invitation to the public[,] [and di d] not present the physical characteristics ofa park beyond the presence of grass.”Id. at 1193. Here, by contrast, the Mound Road m edian contained two par k benches and farm equipment. It was landscaped and housed at least one plaque, which could only be read by someone standing on t he median. The M ound Road median, in other words, has features that invite the public to spend tim e there. I t is more like a public park and therefore more likely than the m edian in Snowden to qualify as a traditional public forum.
Also relatively unhelpful is Warren v. Fairfax County , 196 F.3d 186 (4th Cir. 1999) (en banc). There, Fairfax County denied W arren’s request to build a “holiday display,” id. at 189, on “a large grassy mall, approximately thirty yards wide and spanning about 200 yards. Sidewalks circum navigate[d] the mall and amble[d]

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along a cent ral landscaped strip.” Id. at 188. The m all abutted Fairfax County’s government center. Ibid. The Fourth Circuit, sitting en banc, held that the mall was a traditional public forum , and that the County’s denying W arren’s permit was not a narrowly tailored means of achieving a compelling state interest. Id. at 194–96, 197–98. In dicta, the court argued that median strips, because they are part of the street, qualify automatically as traditional public fora. Id. at 196–97.
Warren, like Snowden, is critically different fromthis case. There, the mall was quite close to the seat of government, and apparently covered by sidewalks. The Mound Road median, unlike the m all in Fairfax, is not “a part of the grounds of a seat of legislative and execut ive power,” id. at 196, and contains only one sm all strip of sidewalk. It is, in this sense, less likely to qualify as a traditional public forumthan the Fairfax County mall.
Nor is ACORN v. City of Phoenix, 798 F.2d 1260 (9th Cir. 1986), overruled by Comite de Jornaleros de Redondo Beach v. City of Redondo Beach , 657 F.3d 936 (9th Cir. 2011) (en banc), part icularly persuasive. In ACORN, the City of Phoenix passed an ordinance prohibiting a person from “stand[ing] on a street or highway and solicit[ing], or attempt[ing] to solicit, employment, business or contributions from the occupants of any vehicle.” ACORN, 798 F.2d at 1262. Although the Ninth Circuit upheld the ordinance, it di d not decide whether streets qualified as traditional public fora, even when being used by cars. Rather, it explained: “under the circumstances of this case, we need not decide whether public streets are perpetual public fora. . . . We conclude that the Phoenix ordinance can be justified even under the more rigorous standards applied to the regulation of expression in traditional public fora.”Id. at 1267.
But, like Snowden, the ACORN court’s reasoning would not have been particularly helpful to us, even if the court had decided what kind of forumwas at issue. ACORN involved people who actually went into the streets to solicit contributions from drivers stopped in traffic. Id. at 1262. This is not remotely similar to our case, where the property at issue is not the street itself, but a landscaped emdian, with adequate space for pedestrians and sojourners, benches, and historical displays.

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To decide what kind of forum the Mound Road m edian is, then, we return to more general forum-analysis principles. Perry, which laid the foundation for today’s forum analysis, cited Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939), when explaining what kind of property qualifies as a traditional public forum. Perry, 460 U.S. at 45. In Hague, the Court reasoned:
Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, tim e out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of t he streets and public places has, from ancient tim es, been a part of the privileges, immunities, rights, and liberties of citizens.
Hague, 307 U.S. at 515. To determine whether the median is such a place, we examine “the objective characteristics of the property, such as whether, by long tradition or by government fiat, the property has been devoted to assem bly and debate.” Ark. Educ. Television Com’n v. Forbes , 523 U.S. 666, 677 (1998) (internal quotation m arks omitted).
The Mound Road m edian is difficult to define because it has objective characteristics typical of both public and non-public fora. Like a public park, one of the “quintessential public forums,” Perry, 460 U.S. at 45, the median is landscaped and has benches for people to use. It also contains “memorial trees and brass memorial plaques affixed to rocks.” Appellant’s Br. at 12. These plaques are discernable only from the median—they are too small to be read by a passing motorist. Across Chicago Road, in a similar median, is the gazebo, erected by the City of Warren Historical Society, which contains more space for people to assemble.
On the other hand, the median is in the middle of a busy eight-lane road, with a fifty-mile-per-hour speed limit. There does not appear to be any special parking area for the median, nor are there dedicated public restrooms. See Snowden, 358 F. Supp. 2d at 1193 (noting lack of “appropriate accommodations facilitating such use, such as public restrooms and public parking”). However, there is pedest rian access from a sidewalk that crosses the median and connects the two sides of Mound Road.

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On balance, we hold that the Mound Road median is a traditional public forum. Residents of Warren apparently use the m edian for a variety of expre ssive purposes, such as the display of farmequipment (meant to show the historical nature of the village) and memorial plaques. The median, moreover, invites visitors. It contains park benches and is accessible by sidewalk. True, the Mound Road m edian is not next to a seat of government, nor is there any evidence thatit is a place where people discuss politics, in particular. But a public space does not implicate the First Amendment only when it is a forum for political discussion. Rather, “streets and parks . . . have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Hague, 307 U.S. at 515 (emphasis added). Nor does the median’s location necessarily preclude its being identified as a public forum. A public sidewalk allows access to the median, and public benches populate it.

The district court argued, and the Board argues, for a contrary conclusion. Their claims are not persuasive. The district court “distilled” three factors fromthe Snowden and Fairfax decisions:

(1) the median’s physical characteristics and the context of the property’s

use, including its location and purpose; (2) the County’s intent in

constructing the median and its need for controlling expressive activities

on the property, as evidenced by its policies or regulations;

and

(3) whether the property in question is part of a class of property which

by history or tradition has been open and used for expressive activity.

Applying these three factors, the district court held that, “[v]iewed in its totality, the subject median cannot be a place intended for bringing citizens together to exchange ideas.” The median, it reasoned, was not aplace “used for public discourse and debate,” nor was it “property that . . . Macom b County has dedicated to c ommemorating the people, ideals, and events that compose the city’s or county’s identity.” Thus, the court held that the median was not a public forum.

This reasoning is problematic. First, the district court’s interpretation was too narrow. Without question, property “intended for bringing citizens together to exchange

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ideas,” “used for public discourse and debate,” or “dedicated to com memorating the people, ideals, and events that compose the city’s or county’s identity” can qualify as a traditional public forum. But to hold that every traditional public f orum must display one or more of these particular qualities, as the district court appears to have done, is to misread relevant Supreme Court precedent. A forumis public because it is a place long dedicated, whether by law or tradition, to “assembly, communicating thoughts between citizens, and discussing public questions.” Hague, 307 U.S. at 515; see also Pleasant Grove City, Utah v. Summum , 555 U.S. 460, 469 (2009) (“This Cour t long ago recognized that members of the public retain strong free speech rights when they venture into public streets and parks . . . .”);Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 761 (1995) (“The right to use governm ent property for one’s private expression depends upon whether the property has by law or tradition bee n given the status of a public forum, or rather has been reserved for specific offi cial uses.”). The Mound Road median has been a place where people could gather since at least 1991, when the Village of Warren Historical Commission built the gazebo.13 It is accessible by public sidewalk and features benches and m emorial plaques. Perhaps the Mound Road median is not a place where people would ordinarily conduct political discourse. But there is no reason that they could not do so: the median is a public space, which is, and apparently long has been, available to a ll comers. This is enough. The district court’s too-restrictive reading was incorrect.14
Neither is the Board’s claim that the median is a nonpublic forum persuasive. The Board emphasizes that Mound Road carries “over 82,000 cars a day . . . in 8 lanes of traffic at speeds near or in excess of 50 mph.” Appellees’ Br. at 33. It claims that it “does not want people sitting in the . . . median,” and that “[t]he Mound Road median is certainly not a place where the [Board] would encourage people to congregate or sit.”

13Indeed, to read the Michigan Historic Marker near the gazebo, one would have to be on the median.
14Notably, the district court is not entirely right on the facts either. At the gazebo isa historical marker, discussing the Village’s history. And sprinkle d around the m edian are plaques, honoring prominent citizens. These facts point toat least some “commemorati[on] of the people, ideals, and events that compose the city’s or county’s identity.”

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Ibid. The Board also suggests that the gazebo does not counsel a contrary conclusion, since “the display of a permanent monument by a government in a public park is not the form of expression to which the forum analysis applies.” Id. at 35.
These claims are unsuccessful. First, the record refutes the Board’s contention that, because Mound Road is a high-volume roadway, the Board does not want people on the median. If this were so, it would be strange to provide access to the median via sidewalk, and to allow various groups to erect benches, a gazebo, and plaques that could only be read while standing on the median. The Board replies that it did not know about any of these things before this litigation, and that it has now requested (though not compelled) removal of, at least, the farm equipment.15 Even accepting this as true, though, the character of the m edian is a matter of tradition. The board’s choosing to attempt to close the median to all expression now does not change its traditional status for the purposes of this litigation.
Nor is the Board’s claim that the gazebo has no bearing on our forum analysis correct. It is, of course, true that “[t]he Free Speech Clause restricts governm ent regulation of private speech; it does not regulate governm ent speech,” Summum, 555 U.S. at 467, but the significance of the gazebo is not its m essage. Rather, the gazebo’s presence dem onstrates that the m edian is, like a public park, a place that welcomes visitors.
In sum, the Mound Road median is best categorized as a traditional public forum. To be sure, it is not prototypical. Nevertheless, it is a place where people have long been able to gather, sit, and communicate, even though it separates traffic on a busy street.
B
Because the median is a traditional public forum, the government may prohibit protected expression based on content only if it “show[s] that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.”

15At oral argument, the Board’s attorney indicate d that the presence of other objects in the median was still “being hotly discussed and debated between the City and the Road Commission.”

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Perry, 460 U.S. at 45. It m ay, however, “enforce re gulations of the tim e, place, and manner of expression which are content-neutral , are narrowly tailored to serve a significant government interest, and leave open am ple alternative channels of communication.” Ibid.
“[U]nder strict scrutiny [the government] still must demonstrate that [its] stated justification is the actual purpose for the proposed am endment and not a ‘rationalization[ ] for actions in fact differently grounded.’” Awad v. Ziriax, 670 F.3d 1111, 1130 n.15 (10th Cir. 2012) (final alteration in original.) (quotingUnited States v. Virginia, 518 U.S. 515, 535–36 (1996));16 see also Shaw v. Hunt, 517 U.S. 899, 908 n.4 (1996) (“To be a compelling interest, the State must show that the alleged objective was the legislature’s ‘actual purpose . . . .’”) (cit ing Miss. Univ. for Women v. Hogan, 458 U.S. 718, 730 (1982)). This is different fromrational-basis review,see, e.g., Williamson v. Lee Optical of Okla., 348 U.S. 483 (1955) (proposing hypothetical justifications for Oklahoma law, and affirming based on those justifications), but it is crucial because of what is at stake. “We cannot and will not uphold [government action] that abridges an enumerated constitutional right on the basis of a factitious governmental interest found nowhere but in the defendants’ litigating papers.”Colo. Christian Univ. v. Weaver, 534 F.3d 1245, 1268 (10th Cir. 2008) (McConnell, J.).
The parties first dispute whether religion or traffic safety was the “real” reason that the Board denied Satawa’s permit application. The district court held that, as the defendants’ litigating papers, suggested, sa fety was at least part of the Board’s motivation for denying the permit. (“In sum, the Court does not find that Plaintiff has demonstrated the existence of any m aterial issue of fact with r egard to Defendants’ safety reasons for the denial of Mr. Satawa’s per mit application such that the safety reasons given by Mr. Hoepfner should be discredited.”). The district court erred.
Before this lawsuit, there was no indication that safety concerns playedany role in the Board’s decision. Quite the contrary. Even though Satawa’s permit application
16Virginia, which Awad cited, involved intermediate scrutiny, the less exacting review applied to gender discrimination.

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specifically claimed that the crèche did not obstruct traffi c or pose “any other safety concerns,” Hoepfner’s letter denying the permit only addressed religion. (“The Road Commission of Macomb County cannot permit you to display this nativity scene in the Road Commission’s right of way. This undoubtedly would be interpreted as our endorsement of religion, in violation of the Establishment Clause of the U.S. Constitution.”). Not once did he use the word “safety;” not once did he use the word “traffic.” Likewise, Hoepfner’s presentation to the Board m ade no mention of safety concerns. Rather, he explained: “I’ve contacted Ben Aloia and asked him to research [whether the Board should grant Satawa’s application]. Ben has informed me that we should not allow this nativity scene to be installed, and he has given me some language that I should [sic] respond to this permit. I intend to do that.” Ben Aloia is a lawyer,17 not a traffic engineer. Never did Hoepfner take any measurements, do any calculations, or consult with any other engineers before denying the permit. If Hoepfner’s concern really were traffic safety, it is im plausible that there would be no ment ion of traffic safety in either his letter to Satawa or hispresentation to the Board. Hoepfner’s dealing only with religious concerns in docum ented letters and discussions before litigation began strongly suggests that the Establishment Clause, not safety, was the reason for his decision. This is especially so at the summary-judgment stage, where we must construe the record in Satawa’s favor.
Contrary evidence in the record is, at best, thin. As discussed above, Hoepfner claimed in his deposition t hat he had separate discussions with each of the Road Commissioners about Satawa’s application, outside of the Board’s regularly scheduled meetings. (“Q: Did you ever have any discussions with any Board member outside of the Board meetings regarding the nativity scene perm it? A: All of the Board Members.”). He insisted that these discussions lasted “many, many hours,” and focused on his belief that the crèche posed a traffic hazard. Board Chai rwoman Fran Gillett testified that she understood that Hoepfner was concerned about safety. But she also indicated that she “first becam e aware of [the crèche] . . . when [the Board] had a

17Indeed, Attorney Aloia continues to represent the Board before us.

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complaint the Christmas before last [December 2008], and then at that point [she]didn’t hear anything more until 2009at [the March 6 Board] meeting.” (emphasis added). One business day after the board m eeting, Hoepfner sent a letter denying the perm it to Satawa’s lawyer.
This sequence of events casts doubt on the Boa rd’s argument that Hoepfner related his safety concerns to Gillett through casual, pa ssing discussions that took “many, many hours.” This would be so eve n if we were not required to construe the facts and draw all reasonable inferences in Satawa’s favor. Mercer Cnty., 432 F.3d at 628. Under the sum mary-judgment standard, the district court should have rejected Hoepfner’s claim that he discussed safety concerns with Board m embers before the meeting, and drawn the reasonable infe rence that the Board’s self-serving (but still questionable) litigation documents were designed to conceal its real reason for denying the permit: the crèche’s religious content.18
Because, at this stage, we m ust assume that the Boar d rejected the perm it application based on its religious content, strict scrutiny applies.19 Pinette, 515 U.S. at 760 (“Our precedent establishes that private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression.”). Thus, the government must show that its denying the permit application was “necessary to serve a compelling state interest and that it [was] narrowly drawn to achieve that end.” Perry, 460 U.S. at 45.

18It is also worth noting that, here, the Board presses a safety concern that Hoepfner admits he did not have. In his deposition, Hoepfner expressly stated that he “didn’t deny [the perm it] for sight problems.” The safety issue relating to sight (obscured vision) that the Board now claims is compelling appeared, at the earliest,during briefing on Satawa’s temporary-injunction motion. Supra note 9. We may consider this shift in determining whether the Board’s denying the permit was constitutional. McCreary Cnty., Ky. v. ACLU of Ky., 545 U.S. 844, 866 (2005) (holding that, when determining purpose in the Establishment Clause context, past behavior was relevant, since “the world is not made brand new every morning”).
19Amicus National Legal Foundation suggests that we adopt a fram ework similar to the McDonnell Douglas burden-shifting analysis to determine whether a government’s asserted motivation is its actual motivation. Amicus Br. of Nat’l Legal Found. at 2–7. We need not take this step because, at this stage, resolution of the actual-motive question is straightforward.

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“There is no doubt that com pliance with the Establishm ent Clause is a state interest sufficiently compelling to justify content-based restrictions on speech. Whether that interest is implicated here, however, is a different question.” Pinette, 515 U.S. at 761–62 (citing Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist. , 508 U.S. 384, 394–95 (1993)). For the Establishment Clause to serve as a compelling state interest, the speech suppressed m ust actually violate the Constitution. If the governm ent’s “posited fears of an Establishment Clause violation are unfounded,” an Establishment Clause defense will not do. Lamb’s Chapel, 508 U.S. at 395.
The question we face, then, is whether Satawa’s private expression of religious beliefs on the Mound Road median would violate the Establishment Clause. “And we do not write on a blank slate in answering it.”Pinette, 515 U.S. at 762. Time and again, the Supreme Court and this court have considered cases where a private individual seeks to express religious views in a public forum . See, e.g., Pinette, 515 U.S. at 761–63 (holding that allowing KKK to erect unattende d cross on Columbus’s Capitol Square would not violate Establishment Clause); Lamb’s Chapel, 508 U.S. at 395 (holding that use of school facilities during off- hours for religious film would not violate establishment clause); Widmar v. Vincent, 454 U.S. 263, 271–76 (1981) (holding that University’s allowing religious student groups to use school facilities would not violate Establishment Clause); Chabad of S. Ohio & Congregation Lubavitch v. City of Cinncinati, 363 F.3d 427 ( 6th Cir. 2004) (affirming grant of prelim inary injunction against City of Cincinnati’s enforcing ordinance prohibiting display of m enorah in traditional public forum during Chanukah); Ams. United for Separation of Church & State v. City of Grand Rapi ds, 980 F.2d 1538 (6th Cir. 1992) (en banc) (holding that privately funded menorah, displayed during Chanukah in traditional public forum did not violate Establishment Clause); Congregation Lubavitch v. City of Cincinnati, 923 F.2d 458 (6th Cir. 1991) (holding that city c ould not show likelihood on success of merits in challenge of injunction requiring it to keep menorah displayed in public square lit). W here, as here, “[t]he State did not sponsor [the religious] expression, t he expression was made on government property that had been opened to the public for speech, and permission was requested through the same application process and on the

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same terms required of other private groups,” the governm ent would not violate the Establishment Clause by granting the perm it. Pinette, 515 U.S. at 763. The Board’s interest in preventing an Establishment Clause violation, therefore, was not compelling. Its decision to deny the permit does not pass muster under strict scrutiny.
C
We would reach the sam e result even if we accepted the Board’s proffered traffic-safety justification. To deny the permit based on traffic safety, the Board would have to show that it did no m ore than enforce compliance with a reasonable, contentneutral time, place, and m anner restriction, “narrowly tailored to serve a significant government interest, [which left] open ample alternative channels of communication.” Perry, 460 U.S. at 45; Bays v. City of Fairborn, 668 F.3d 814, 822 (6th Cir. 2012) (“To be a constitutional tim e, place, and m anner restriction [on protected expression in a traditional public forum], the . . . policy must be narrowly tailored to serve a significant government interest.”). Of course, traffic safety in general is a significant government interest. The particular concern that the board posits in this case, however, is not. The parties’ experts agreed that the crèche could cause an accident in only one scenario: a driver traveling northbound on Mound Road runs a red light, and another driver traveling six to ten mi les-per-hour below the posted speed lim it, eastbound on Chicago Road, looks for traffic before com ing to the crèche, then passes the crèche and cont inues through the intersection wit hout again checking for traffic. Not only is this scenario extremely improbable—indeed, it rests on one driver flagrantly disobeying traffic laws, while another is grossly inattentive—but the crèche’s absence would do little to prevent it. For the crèche to cause the posited collision to take place, the Chicago Road driver would have not to look at Mound Road traffic after he passed the area that houses the crèche, and not have his view obstructed by the pine trees (though the County clasimthat the trees permit a view of Mound Road). Otherwise, the driver would have ample time to stop, regardless of the crèche’s presence. A hypothetical traffic-safety concern resting on aberrant behavior, which has never happened—nor has the re been any record of it being threatened—in sixty years does not qualify as a significant government interest.

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Nor, as the Amicus urges, was the decision to deny the permit outright a means narrowly enough tailored to achieve the Board’s stated traffic-safety goal. “Although a regulation may satisfy the [narrow-]tailoring requirement even though it is not the least restrictive or least intrusive means of serving the state’s goal, it must not be substantially broader than necessary.” Bays, 668 F.3d 823 (internal quotation marks omitted). Here, the Board denied Satawa’s permit outright. It made no effort to take a less restrictive course, nor did it explain why it could not have worked with Satawa to allay its safety concerns. It did not tailor its denial at all, much less narrowly, to its stated interest.
Denial of the permit, therefore, would not pass muster even if we accepted the general validity of the Board’s proffered traffic-safety justification.
IV
The First Amendment’s Establishment Clause prohibits the government from taking action “respecting an establishment of religion.” U.S.CONST. amend. I. This, the Supreme Court has explained, means that thegovernment may neither officially promote religion, nor ha rbor “an official purpose to disapprove of a particular religion or of religion in general.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialea, h508 U.S. 520, 532 (1993). “The touchstone for our analysis is the pr inciple that the First Amendment mandates governmental neutrality between religion and r eligion, and between religion and nonreligion.” McCreary Cnty., 545 U.S. at 860 (internal quotation marks omitted).
Although it has lost som e of its luster, t he test from Lemon, 403 U.S. 602, as refined by later Suprem e Court opinions, guides our Establishm ent Clause analysis. ACLU of Ohio Found., Inc. v. DeWeese, 633 F.3d 424, 430–41 (6th Cir. 2011). Under today’s Lemon test, we ask: (1) whether the governm ent’s predominant purpose was secular;20 (2) “whether the governm ent action has the purpose or effect of endorsi ng religion,” ibid., and (3) whether the action fosters “an excessive entanglem ent with

20Originally, the first question in the Lemon test was whether the challenged action had “a secular . . . purpose.” Lemon, 403 U.S. at 612. McCreary County reformulated this test, requiringthat the government show that its predominant purpose was secular. Mercer Cnty., 432 F.3d at 635.

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religion.” Lemon, 403 U.S. at 613. If we cannot answer “yes” to the first question and “no” to the second two, the challenged action violates the Establishm ent Clause. DeWeese, 633 F.3d a t 431 (“Failure under any of Lemon’s three prongs deem s governmental action violative of the Establishment Clause.” (internal quotation marks omitted)).
In the predominant-purpose inquiry, we generally accept the government’s stated rationale for its action. Ibid. “But it is nonetheless the duty of the courts to distinguish a sham secular purpose from a sincere one.” Santa Fe Ind. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000) (internal quotation m arks and alterations om itted). Our task is to examine the record with “eyes that . . . belong to an objective observer, one who takes account of the traditional external signs that show up in the text, . . . history, and implementation of the statute, or comparable official act,” McCreary Cnty., 545 U.S. at 862 (internal citations and quotation m arks omitted), and to ensure that “the secular purpose required [was] genuine, not a sham , and not merely secondary to a religious objective.” Id. at 864 (citing Santa Fe, 530 U.S. at 308). Of course, “reasonable observers have reasonable memories, and our precedents sensibly forbid an observer to turn a blind eye to the context in which [the] policy arose.” Id. at 866 (alteration in original, internal quotation marks omitted).
Here, as discussed above, an objective examination of the record—especially at the summary-judgment stage—strongly suggests that the Board denied Satawa’s permit because it believed that the crèche, if placed on the m edian, would violate the Establishment Clause. Its lat er-asserted position that it denied the perm it because of safety concerns does not withstand even cursory scrutiny. First, Gillet’s testimony casts doubt on Hoepfner’s claimthat he had extensive discussions with Board members about the safety concerns that the crèche posed. See supra note 9. Second, the Boa rd’s asserted safety justification, like the County’s explanation for its display in McCreary County, changed over tim e. See McCreary Cnty. , 545 U.S. at 851–58. I n his deposition, Hoepfner specified: “I didn’t deny [Satawa’s permit] for sight problems. It was an encroachment within the right-of-way . . . that’s the reason I denied it.” The

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Board, however, now relies on the admittedly later-conceived explanation that the crèche could interfere with a driver’s line of sight. This shift too casts doubt on the Board’s safety explanation. Third, no contemporaneous document gives any reason other than the crèche’s religious content for denying Satawa ’s permit application. Avoiding an Establishment Clause violation, an objective observer would find, was the reason that the Board denied the permit.
Satawa reasons that this prem ise leads inexorably to the conclusion that the Board’s predominant purpose was not secular, but religious. To deny the perimt because of the crèche’s religious m essage, he claim s, was to express an official policy disfavoring religion. This argument has some intuitive appeal. But it rests on a sleight of hand. The purpose of adhering to the Constitution has nothing to do with religion. The Board’s bad guess—or bad legal advice—about the constitutional implications of Satawa’s permit, without more, does not show a purpose to favor or disfavor religion2.1 See Stratechuk v. Bd. of Educ., S. Orange-Maplewood Sch. Dist,.587 F.3d 597, 604–06 (3d Cir. 2009). Nor is there any evidence of animosity toward religion in the record.22 To the contrary, Gillet instructed Hoepfner, who had sought legal advice from outside counsel, to “obey the law.” Appellant’s Br. at 14. The Board’s predominant purpose was the secular purpose of acting constitutionally.23

21A contrary conclusion would put any governm ent faced with a perm it application in an impossible position. If it approved the perm it, it would be liable for favoring religi on; if it denied the permit, it would be liable for disfavoring religion.
22Were there such evidence, the result m ight be different. If the county had a bad m otive, or wanted to curry political favor with a particular group, the predominant purpose might not be considered secular.
23This reasoning is completely consistent with our earlier strict-scrutiny discussion. Taken objectively, and construed under the summary-judgment standard, the record shows that the Board denied Satawa’s permit to avoid what it believed was an Establishment Clause violation. For this to qualify as a compelling state interest, strong enough to justify abridging Satawa’s fundam ental right to express himself in a traditional public forum, Satawa’s display would actually have to violate the Establishment Clause. Lamb’s Chapel, 508 U.S. at 395. In the first step of the Lemon test, something different is at stake. The question is not whether the governm ent put forward a com pelling interest that justifies its banning expression, but whether the purpose for a given act was predominantly religious. That the goal of avoiding an Establishment Clause violation is a compelling governmental objective only when there would actually be a constitutional violation has no bearing on whether the effort, right or wrong, to avoid an Establishment Clause violation is a predominantly religious or secular purpose.

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Nor, by the same token, would a reasonable observer find that the Board’s action had the purpose or effect of endorsing or disapproving of religion, or that denying the permit created any kind of entanglement. Rather, on this record, a reasonable observer would take Hoepfner at his written, and spoken (at the board m eeting), word: he was trying to obey the law. Fear of violating the Constitution, not Satawa’s religion, motivated his decision. Nothing about that fear suggests any view about, or involvemnt with, religion at all, short of a desire sim ply to act lawfully. The district court wa s correct to grant sum mary judgment for the Board on Satawa’s Est ablishment Clause claim.
V
The Equal Protection Clause of the Fourteenth Amendment “protects against invidious discrimination among similarly situated individuals or implicating fundamental rights.” Miller, 622 F.3d at 538 (quoting Scarbrough v. Morgan Cnty. Bd. of Ed. , 470 F.3d 250, 260 (6th Cir. 2006)). “[U]nder the Equal Protection Clause . . . government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishi ng to express less favored or m ore controversial views.” Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 96 (1972).
“The threshold element of an equal protection claimis disparate treatment; once disparate treatment is shown, the equal protection analysis to be applied is determined by the classification used by the government decision-makers.” Miller, 622 F.3d at 538 (quoting Scarbrough, 470 F.3d at 260). The Board claim s that it granted a permit for only one item on median: the gazebo across the street from the crèche. Appellees’ Br. at 49. It suggests, however, that its granting such a license is irreleva nt because “[p]ermanent monuments displayed on public property typically represent government speech.” Summum, 555 U.S. at 470.
The thrust of the Board’s claimappears to be that, because the decision to allow the Warren Historical Com mission to build a permanent monument is governm ent speech, it is not similar to the Board’s decision to deny Satawa’s application to erect a temporary display, for purposes of the Equal Protection Clause. Whether this argument

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succeeds is a close question. Without doubt, a permanent display has a different position under the First Amendment than a temporary display. So, in that sense, the gazebo and the crèche are materially different. On the other hand, it would be strange to hold that Satawa’s permit application can be denied because a restriction on a temporary display is more problematic than a restriction on a perm anent one. Nevertheless, the two displays are not in the same class, in at least one sense.
We need not resolve this question, however, because of the presence of other objects on the m edian. As soon as the Board received the Freedom From Religion Foundation’s letter, Hoepfner sent an inspector to see the crèche. He immediately called Satawa and told him to remove the display. The record does not show that he took similar steps for the other item s on the m edian until after litigation began. See Appellees’ Br. at 49 (“[N]one of the other item s placed on t he median at issue . . . have been perm itted by the RCMC. . . . There are discussions underway at the RCMC regarding the removal of these items and the Warren Historical Commission has been approached to remove the items.”).
The crèche, as discussed above, is private religious expression, “fully protected under the Free Speech Clause.” Pinette, 515 U.S. at 760. For the County to have treated it differently than other items on the median, therefore, the decision to ban the crèche would have to advance a compelling governmental interest and be a narrowly tailored means to achieve that interest. Barr v. Lafon, 538 F.3d 554, 576 (6th Cir. 2008) (“[W]e apply strict scrutiny under the Equal Protection Clause to a statute infringing on speech protected by the First Amendment . . . .”). As discussed above, the Board cannot meet this standard. See supra part III.B. The district court erred by granting sum mary judgment to the Board on Satawa’s equal-protection claim.
VI
In sum, we AFFIRM the district court’s grant of summary judgment to the Board on Satawa’s Establishment Clause claim. However, we REVERSE the district court’s disposition of Satawa’s free-speech and equal-protection claims, and remand for further proceedings consistent with this opinion.

 
 Case: 2:09-cv-14190 As of: 01/04/2013 12:45 PM EST 1 of 6
CLOSED,REOPENED,STAYED
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:09−cv−14190−GER−PJK

Satawa v. Macomb County Road Commission et al Assigned to: District Judge Gerald E. Rosen Referred to: Magistrate Judge Paul J. Komives Case in other court: U.S. Court of Appeals − Sixth Circuit,
11−01612 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 10/23/2009 Date Terminated: 01/03/2013 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

John Satawa

represented by Keith E. Corbett Thomas More Law Center 24 Frank Lloyd Wright Drive Ann Arbor, MI 48105 734−827−2001 Email: kcorbett@thomasmore.org ATTORNEY TO BE NOTICED

Richard Thompson Thomas More Law Center 24 Frank Lloyd Wright Drive Box 393 Ann Arbor, MI 48106 734−827−2001 Fax: 734−930−7160 Email: rthompson@thomasmore.org ATTORNEY TO BE NOTICED

Robert J. Muise American Freedom Law Center P.O. Box 131098 Ann Arbor, MI 48113 734−635−3756 Fax: 801−760−3901 Email: rmuise@americanfreedomlawcenter.org ATTORNEY TO BE NOTICED

V. Defendant Macomb County Road Commission
Defendant Fran Gillett individually and in her official capacity as Chairperson, Macomb County Road Commission TERMINATED: 12/03/2012 Defendant

represented by Benjamin J. Aloia Aloia &Associates, P.C. 48 South Main Street, Suite 3 Mount Clemens, MI 48043 586−783−3300 Fax: 586−783−3313 Email: aloia@aloiaandassociates.com ATTORNEY TO BE NOTICED
represented by Benjamin J. Aloia (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 2:09-cv-14190 As of: 01/04/2013 12:45 PM EST 2 of 6

Robert Hoepfner individually and in his official capacity as County Highway Engineer, Macomb County Road Commission

Benjamin J. Aloia (See above for address) ATTORNEY TO BE NOTICED

Amicus
Freedom From Religion Foundation, Inc.

represented by Danielle J. Hessell Maddin, Hauser, Wartell, Roth &Heller, P.C. 28400 Northwestern Highway Third Floor Southfield, MI 48034 248−354−4030 Fax: 248−359−6123 Email: DHessell@maddinhauser.com ATTORNEY TO BE NOTICED

Date Filed 10/23/2009
10/27/2009 10/29/2009 10/29/2009 10/29/2009 10/29/2009 10/29/2009 10/30/2009

# Docket Text
1 COMPLAINT filed by John Satawa against all defendants. Plaintiff requests summons issued. Receipt No: 06450000000002204806 − Fee: $ 350. County of 1st Plaintiff: Macomb − County Where Action Arose: Macomb − County of 1st Defendant: Macomb. [Previously dismissed case: No] [Possible companion case(s): None] (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Letter from Macomb County Road Commission to Plaintiff Satawa dated December 11, 2008, # 3 Exhibit 2 − Letter from Macomb County Road Commission to Plaintiff Satawa dated February 6, 2009, # 4 Exhibit 3 − Plaintiff Satawa's permit application to display nativity scene, # 5 Exhibit 4 − Letter from Macomb County Road Commission to Plaintiff Satawa dated March 9, 2009) (Muise, Robert) (Entered: 10/23/2009)
2 SUMMONS Issued for *Macomb County Road Commission, Fran Gillett, Robert Hoepfner* (SSch) (Entered: 10/27/2009)
3 CERTIFICATE of Service/Summons Returned Executed. Macomb County Road Commission served on 10/28/2009, answer due 11/17/2009. (Muise, Robert) (Entered: 10/29/2009)
4 CERTIFICATE of Service/Summons Returned Executed. Fran Gillett served on 10/28/2009, answer due 11/17/2009. (Muise, Robert) (Entered: 10/29/2009)
5 CERTIFICATE of Service/Summons Returned Executed. Robert Hoepfner served on 10/28/2009, answer due 11/17/2009. (Muise, Robert) (Entered: 10/29/2009)
6 NOTICE of Appearance by Benjamin J. Aloia on behalf of Macomb County Road Commission, Fran Gillett, Robert Hoepfner. (Aloia, Benjamin) (Entered: 10/29/2009)
7 CERTIFICATE OF SERVICE by Macomb County Road Commission, Fran Gillett, Robert Hoepfner re 6 Notice of Appearance (Aloia, Benjamin) (Entered: 10/29/2009)
8 MOTION for Temporary Restraining Order / Preliminary Injunction by John Satawa. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Declaration of John Satawa, # 3 Exhibit A − Letters from Plaintiff to Warren Police Department, # 4 Exhibit B − Photograph of nativity scene, # 5 Exhibit C − Letter from Macomb County Road Commission ordering removal of nativity scene, # 6 Exhibit D − Letter from Macomb County Road Commission regarding permit application, # 7 Exhibit E (part 1 of 2) − Photographs of median, # 8 Exhibit E (part 2 of 2) − Photographs of median, # 9 Exhibit F − Photographs of median−−gazebo, # 10 Exhibit G − Photographs of median−−memorial trees and plaques, # 11 Exhibit H − Photograph of median sign, # 12 Exhibit I − Plaintiff's permit application, # 13 Exhibit J − Macomb County Road Commission's formal denial of Plaintiff's permit application) (Muise, Robert) (Entered: 10/30/2009)

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11/17/2009 11/17/2009 11/17/2009
11/18/2009 11/20/2009
11/25/2009 11/25/2009
11/25/2009 11/25/2009 12/07/2009
12/09/2009 12/09/2009 12/10/2009
12/11/2009 12/17/2009 12/21/2009 12/28/2009 01/11/2010 01/19/2010 01/22/2010
01/25/2010

9 ANSWER to Complaint by Macomb County Road Commission, Fran Gillett, Robert Hoepfner. (Aloia, Benjamin) (Entered: 11/17/2009)
10 AFFIRMATIVE DEFENSES by Macomb County Road Commission, Fran Gillett, Robert Hoepfner (Aloia, Benjamin) (Entered: 11/17/2009)
11 CERTIFICATE OF SERVICE by Macomb County Road Commission, Fran Gillett, Robert Hoepfner re 10 Affirmative Defenses, 9 Answer to Complaint (Aloia, Benjamin) (Entered: 11/17/2009)
12 NOTICE TO APPEAR: Scheduling Conference set for 12/3/2009 09:30 AM before District Judge Gerald E Rosen (RBri) (Entered: 11/18/2009)
13 RESPONSE to 8 MOTION for Temporary Restraining Order / Preliminary Injunction filed by Macomb County Road Commission, Fran Gillett, Robert Hoepfner. (Aloia, Benjamin) (Entered: 11/20/2009)
14 NOTICE of hearing. Motion Hearing set for 12/9/2009 03:30 PM before District Judge Gerald E Rosen. (RBri) (Entered: 11/25/2009)
15 REPLY to Response re 8 MOTION for Temporary Restraining Order / Preliminary Injunction filed by John Satawa. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 2 − Zamora Declaration with letter from Warren Village Historic District Commission attached as Exhbit A) (Muise, Robert) (Entered: 11/25/2009)
16 NOTICE of Appearance by Richard Thompson on behalf of John Satawa. (Thompson, Richard) (Entered: 11/25/2009)
17 NOTICE of Appearance by Keith E. Corbett on behalf of John Satawa. (Corbett, Keith) (Entered: 11/25/2009)
18 SUR−REPLY re 8 MOTION for Temporary Restraining Order / Preliminary Injunction filed by Macomb County Road Commission, Fran Gillett, Robert Hoepfner. (Aloia, Benjamin) (Entered: 12/07/2009)
19 NOTICE of Appearance by Danielle J. Hessell on behalf of Freedom From Religion Foundation, Inc.. (Hessell, Danielle) (Entered: 12/09/2009)
20 MOTION for Leave to File a Brief as Amicus Curiae by Freedom From Religion Foundation, Inc.. (Hessell, Danielle) (Entered: 12/09/2009)
Minute Entry − Motion Hearing held on 12/10/2009 re 8 MOTION for Temporary Restraining Order / Preliminary Injunction filed by John Satawa before District Judge Gerald E Rosen. Disposition: Taken Under Advisement(Court Reporter Carol Sapala) (RBri) (Entered: 12/10/2009)
21 ORDER granting 20 Motion for Leave to File Amicus Brief. Signed by District Judge Gerald E Rosen. (RBri) (Entered: 12/11/2009)
22 STIPULATION by John Satawa (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C) (Corbett, Keith) (Entered: 12/17/2009)
23 STIPULATION by John Satawa (Corbett, Keith) (Entered: 12/21/2009)
24 OPINION AND ORDER ADDRESSING PLAINTIFF'S 8 Motion for Preliminary Injunction. Signed by District Judge Gerald E Rosen. (RBri) (Entered: 12/28/2009)
25 RESPONSE to the Court's Show Cause Order filed by John Satawa. (Muise, Robert) (Entered: 01/11/2010)
26 REPLY to the Court's Show Cause Order by Macomb County Road Commission, Fran Gillett, Robert Hoepfner. (Aloia, Benjamin) (Entered: 01/19/2010)
27 SUPPLEMENTAL BRIEF re 25 Response to Petition/Request/Application Sur−Reply to the Court's Show Cause Order filed by John Satawa. (Muise, Robert) (Entered: 01/22/2010)
28 SUPPLEMENTAL BRIEF re 26 Reply (Free) to the Court's Show Cause Order filed by Macomb County Road Commission, Fran Gillett, Robert Hoepfner. (Aloia, Benjamin) (Entered: 01/25/2010)

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02/03/2010 02/03/2010 05/14/2010 05/14/2010 05/25/2010 05/27/2010 06/03/2010 06/03/2010 06/11/2010 07/29/2010
07/29/2010
07/29/2010
07/29/2010 07/30/2010

29 ORDER VACATING SHOW CAUSE ORDER. Signed by District Judge Gerald E Rosen. (RBri) (Entered: 02/03/2010)
30 SCHEDULING ORDER: Discovery due by 5/29/2010, Dispositive Motion Cut−off set for 6/30/2010, Final Pretrial Conference set for 9/30/2010 01:00 PM before District Judge Gerald E Rosen, Trailing Trial Docket set for 10/5/2010. Signed by District Judge Gerald E Rosen. (Attachments: # 1 Document Continuation) (Refer to image for additional dates) (RBri) (Entered: 02/03/2010)
31 Defendants' Preliminary Trial WITNESS LIST by Fran Gillett, Robert Hoepfner, Macomb County Road Commission (Aloia, Benjamin) (Entered: 05/14/2010)
32 CERTIFICATE OF SERVICE by John Satawa Plaintiff's Preliminary Trial Witness List (Muise, Robert) (Entered: 05/14/2010)
33 Joint MOTION TO EXTEND Dispositive Motion Cut−Off Date by All Defendants. (Aloia, Benjamin) (Entered: 05/25/2010)
34 STIPULATION AND ORDER TO EXTEND DISCOVERY CUT−OFF FOR EXPERT DEPOSITIONS AND EXTEND DEFENDANTS' DISCLOSURE OF WRITTEN EXPERT REPORT TO PLAINTIFF. Signed by District Judge Gerald E Rosen. (RGun) (Entered: 05/27/2010)
35 ORDER granting 33 Stipulated Motion for Extension of Dispositive Motion Cut−Off Date. Signed by District Judge Gerald E Rosen. (RGun) (Entered: 06/03/2010)
Set/Reset Scheduling Order Deadlines: Dispositive Motion Cut−off set for 7/30/2010 (RGun) (Entered: 06/03/2010)
36 CERTIFICATE OF SERVICE by All Plaintiffs of Plaintiff's Preliminary Trial Witness List (Muise, Robert) (Entered: 06/11/2010)
37 MOTION for Summary Judgment by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1−−Deposition of Gillett (excerpts), # 3 Exhibit 2−−Deposition of Hoepfner (excerpts), # 4 Exhibit 3−−Permit Application Form, # 5 Exhibit 4−−Road Commission Policy, # 6 Exhibit 5−−Rule 30(b)(6) Deposition Notice, # 7 Exhibit 6−−Deposition of Satawa (excerpts), # 8 Exhibit 7−−Photographs of Nativity Scene, # 9 Exhibit 8−−St. Anne's Parish Record, # 10 Exhibit 9−−Formal Denial Letter, # 11 Exhibit 10−−"Freedom From Religion" Complaint) (Muise, Robert) (Entered: 07/29/2010)
38 EXHIBIT 11−−Road Commission Letter of 12/11/08 re 37 MOTION for Summary Judgment by All Plaintiffs (Attachments: # 1 Exhibit 12−−Deposition of Van Steelandt (excerpts), # 2 Exhibit 13−−Satawa Permit Application (Incomplete), # 3 Exhibit 14−−Road Commission Letter of 2/6/09, # 4 Exhibit 15−−Satawa's 2009 Permit Application, # 5 Exhibit 16−−Supplemental Declaration of Satawa with Deposition Exhibit 34, # 6 Exhibit 17−−Letters from Community/Public, # 7 Exhibit 18−−Declaration of Zamora with Exhibit A (Letter from Historic Commission)) (Muise, Robert) (Entered: 07/29/2010)
39 EXHIBIT 19−−Photographs of Items on Mound Road Median re 37 MOTION for Summary Judgment by All Plaintiffs (Attachments: # 1 Exhibit 20−−Documents Related to Sign and Gazebo, # 2 Exhibit 21−−Deposition of Taylor (excerpts) with Taylor Exhibit 5, # 3 Exhibit 22−−MCL sec. 257.20 "Highway of Street", # 4 Exhibit 23−−E−mail Regarding Recording of Board Meeting of 3/6/09, # 5 Exhibit 24−−Transcript of Recording of Board Meeting of 3/6/09, # 6 Exhibit 25−−Certification of Transcript of Recording of Board Meeting of 3/6/09) (Muise, Robert) (Entered: 07/29/2010)
40 EXHIBIT 26−−Diagram of Intersection (Taylor Deposition Exhibit 4) re 37 MOTION for Summary Judgment by All Plaintiffs (Attachments: # 1 Exhibit 27−−Deposition of Wiechel with Deposition Exhibit 1 (Resume), Deposition Exhibit 2 (Prior Expert Testimony), and Deposition Exhibit 4 (Expert Report)) (Muise, Robert) (Entered: 07/29/2010)
41 MOTION for Summary Judgment by All Defendants. (Attachments: # 1 Index of Exhibits Index of Exhibits, # 2 Exhibit A − Affidavit of Robert P. Hoepfner, P.E., #

Case: 2:09-cv-14190 As of: 01/04/2013 12:45 PM EST 5 of 6

08/19/2010 08/19/2010
08/26/2010
09/01/2010 09/26/2010 04/19/2011 04/19/2011 05/09/2011 05/09/2011 05/13/2011
05/13/2011 05/16/2011 01/31/2012 02/16/2012

3 Exhibit B − R. Hoepfner, P.E., Dep. Trans. (Excerpts), # 4 Exhibit C − Dr. William Taylor, Ph.D. Expert Report, # 5 Exhibit D − Dr. Talyor Expert Illustration, # 6 Exhibit E − Wiechel Report, # 7 Exhibit F − John Satawa Dep. Trans. (Excerpts), # 8 Exhibit G − MDOT Road Design Manual, # 9 Exhibit H − RCMC denial letter, # 10 Exhibit I − Dr. William Taylor, Ph.D. Dep. Trans. (Excerpts)) (Aloia, Benjamin) (Entered: 07/30/2010)
42 RESPONSE to 41 MOTION for Summary Judgment filed by John Satawa. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 28−−Johnson v Poway Unified School District) (Muise, Robert) (Entered: 08/19/2010)
43 RESPONSE to 37 MOTION for Summary Judgment filed by Fran Gillett, Robert Hoepfner, Macomb County Road Commission. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Affidavit of R. Hoepfner, # 3 Exhibit B − Citizen Complaint, # 4 Exhibit C − Permit Application, # 5 Exhibit D − Excerpts from J. Satawa Deposition, # 6 Exhibit E − December 11, 2008 Hoepfner Ltr., # 7 Exhibit F − Denial Ltr., # 8 Exhibit G − RCMC Policy # 802, # 9 Exhibit H − Excerpts from R. Hoepfner Deposition, # 10 Exhibit I − MI Road Deign Manual, # 11 Exhibit J − Taylor Expert Report and Resume, # 12 Exhibit K − Taylor Diagram, # 13 Exhibit L − Excerpts from W. Taylor Deposition, # 14 Exhibit M − SEA Report) (Aloia, Benjamin) (Entered: 08/19/2010)
44 REPLY to Response re 41 MOTION for Summary Judgment filed by Fran Gillett, Robert Hoepfner, Macomb County Road Commission. (Attachments: # 1 Index of Exhibits, # 2 Exhibit L − Excerpts from Robert Hoepfner's Deposition, # 3 Exhibit M − Excerpts from Fran Gillett's Deposition, # 4 Exhibit N − Excerpts from John F. Wiechel, Ph.D., P.E. Deposition) (Aloia, Benjamin) (Entered: 08/26/2010)
45 REPLY to Response re 37 MOTION for Summary Judgment filed by John Satawa. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 29−−Deposition of Fran Gillett (excerpts)) (Muise, Robert) (Entered: 09/01/2010)
46 NOTICE OF CANCELLING FINAL PRETRIAL CONFERENCE AND TRIAL. (RGun) (Entered: 09/26/2010)
47 OPINION AND ORDER REGARDING CROSS−MOTIONS FOR SUMMARY JUDGMENT. Defendants' Motion for Summary Judgment 41 Granted and Plaintiff's Motion for Summary Judgment 37 Denied. Signed by District Judge Gerald E. Rosen. (RGun) (Entered: 04/19/2011)
48 JUDGMENT in favor of Defendants against Plaintiff Signed by District Judge Gerald E. Rosen. (RGun) (Entered: 04/19/2011)
49 NOTICE OF APPEAL by John Satawa. Receipt No: 0645−2969867 − Fee: $ 455 − Fee Status: Fee Paid. (Muise, Robert) (Entered: 05/09/2011)
50 Certificate of Service re 49 Notice of Appeal. (DSmi) (Entered: 05/09/2011)
51 BILL OF COSTS by All Defendants (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Service Fee Documentation, # 3 Exhibit B − Court Reporter Fee Documentation, # 4 Exhibit C − William C. Taylor Expert Wintess Fee Documentation, # 5 Exhibit D − John F. Wiechel Expert Witness Fee Documentation) (Aloia, Benjamin) (Entered: 05/13/2011)
52 CERTIFICATE OF SERVICE re 51 Bill of Costs, by All Defendants (Aloia, Benjamin) (Entered: 05/13/2011)
53 COSTS TAXED in the amount of $1,852.54 against plaintiff. (DPer) (Entered: 05/16/2011)
54 NOTICE of Change of Address/Contact Information by Robert J. Muise on behalf of John Satawa. (Muise, Robert) (Entered: 01/31/2012)
55 ORDER from U.S. Court of Appeals − Sixth Circuit re 49 Notice of Appeal filed by John Satawa − Disposition: granting motion to file amicus brief [Appeal Case Number 11−1612] (KKra) (Entered: 02/16/2012)

Case: 2:09-cv-14190 As of: 01/04/2013 12:45 PM EST 6 of 6

08/01/2012
08/23/2012 10/18/2012 11/01/2012 11/14/2012 11/27/2012 11/29/2012 11/29/2012 12/03/2012 01/02/2013 01/03/2013

56 JUDGMENT from U.S. Court of Appeals − Sixth Circuit re 49 Notice of Appeal filed by John Satawa − Disposition: The district court's grant of summary judgment is affirmed. It is further ordered that the district court's disposition of Satawa's free−speech and equal−protection claims is REVERSED and the case is REMANDED for further proceedings consistent with this opinion. [Appeal Case Number 11−1612] (KKra) (Entered: 08/02/2012)
57 MANDATE from U.S. Court of Appeals − Sixth Circuit as to 49 Notice of Appeal filed by John Satawa [Appeal Case Number 11−1612] (KKra) (Entered: 08/24/2012)
58 Emergency MOTION For Entry of Judgment and Injunction by John Satawa. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1−−Declaration of Robert J. Muise) (Muise, Robert) (Entered: 10/18/2012)
59 RESPONSE to 58 Emergency MOTION For Entry of Judgment and Injunction filed by All Defendants. (Aloia, Benjamin) (Entered: 11/01/2012)
60 STIPULATION AND ORDER to Stay Proceedings pending Settlement Discussions Signed by District Judge Gerald E. Rosen. (SJa) (SJa). (Entered: 11/14/2012)
61 ORDER WITH STIPULATED MOTION to Extend Stay of Proceedings Pending Settlement Discussions Signed by District Judge Gerald E. Rosen. (JOwe) (Entered: 11/27/2012)
62 STIPULATION of Dismissal of Claims Against Defendant Fran Gillett in her individual capacity by Fran Gillett, Robert Hoepfner, Macomb County Road Commission, John Satawa (Muise, Robert) (Entered: 11/29/2012)
Case Settled − Settlement Papers within 30 days (JOwe) (Entered: 11/29/2012)
63 ORDER Granting 62 Stipulation of Dismissal of Claims Against Fran Gillett in Her Individual Capacity Signed by District Judge Gerald E. Rosen. (JOwe) (Entered: 12/03/2012)
64 NOTICE of Voluntary Dismissal by John Satawa (Muise, Robert) Modified on 1/2/2013 (KKra). [DOCUMENT IS A STIPULATION OF DISMISSAL] (Entered: 01/02/2013)
65 ORDER DISMISSING CASE re 64 Stipulation of Dismissal Signed by District Judge Gerald E. Rosen. (JOwe) (Entered: 01/03/2013)

 
 PRESS RELEASE

Arizona  California  Michigan  New York  Washington, D.C.  (855) 835-AFLC (2352)  Fax: (801) 760-3901

Contact: Robert J. Muise (855) 835-AFLC (2352) Choose Option “3”

For Immediate Release: November 29, 2012

Sixty-Year Christmas Tradition Restored: Nativity Scene to Be Displayed Following Successful AFLC Lawsuit
Warren, Michigan (November 29, 2012) — A longstanding, local tradition returns to Warren, Michigan for the 2012 Christmas season as John Satawa is scheduled to reinstall his family’s nativity scene on the public median between Mound and Chicago Roads on Saturday, December 15. The return of the nativity scene comes as the result of a successful legal challenge advanced by Robert Muise, Co-Founder and Senior Counsel of the American Freedom Law Center, (AFLC), a national nonprofit Judeo-Christian law firm which represented Mr. Satawa.
After nearly three years of litigation, this past August the United States Court of Appeals for the Sixth Circuit ruled in favor of Mr. Satawa, confirming that his private religious speech is fully protected under the First Amendment and holding that by denying his permit request to display his nativity scene, the County Road Commission violated his right to freedom of speech protected by the First Amendment and deprived him of the equal protection of the law guaranteed by the Fourteenth Amendment.
Muise, who successfully argued the case before the Sixth Circuit on behalf of Mr. Satawa, commented, “This is not only a victory for Mr. Satawa and his family, but a tremendous victory for the free speech rights of Christians all across our great Nation. While the war on Christmas rages on, we can count this one as a victory for the good guys. Above all, however, I am extremely pleased that Mr. Satawa and his family can resume their cherished holiday tradition, which is a treasure for the entire community.”
For over 60 years, Mr. Satawa and his family had displayed a nativity scene during the Christmas, and there had never been a single complaint about the display until December 2008, when the County Road Commission received a written complaint from the Freedom from Religion Foundation, an atheist activist organization that travels around the country challenging public

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religious displays. The Road Commission acquiesced to the complaint, prompting the filing of this federal lawsuit.
The American Freedom Law Center is a Judeo-Christian law firm that fights for faith and freedom. It accomplishes its mission through litigation, public policy initiatives, and related activities. It does not charge for its services. The Law Center is supported by contributions from individuals, corporations, and foundations, and is recognized by the IRS as a section 501(c)(3) organization. Visit us at www.americanfreedomlawcenter.org.
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