*1
(1996)
1477,
(table);
V. AFFIRMED. Denial of Summary Judgment We REMAND the case to the district for Brotherton on Liability court for further proceedings consistent September On Judge with opinion. Speigel denied Brotherton’s motion partial summary judgment as to the liabili
ty of the defendants. Brotherton did not
file a notice of appeal until fifteen months later, on 26, 1995, December after
district court granted summary judgment for Dr. Cleveland and dismissed Michael GRANZEIER; him from J. Michelle the suit. In that appeal, notice of Blankenship; Brother- Heidi B. Sahrback ton purported appeal er, from that judg Plaintiffs-Appellants, ment “and from any other final orders v. by rendered this court.” jurisdic We lack Clyde MIDDLETON, al., et tion appeal over an from September Defendants-Appellees. order, as that order is not “final.” 97-5409, Nos. 97-6326. See Swint County Comm’n, Chambers 41-43, United Court States of Appeals, (1995) (unanimous) L.Ed.2d 60 (ruling that Sixth Circuit. the denial of a summary judgment motion Argued Dec. 1998. presented neither a final order nor April Decided 1999. appealable order). collateral Even if may petition Brotherton premature ap
pellate
by
review piggybacking the
issue
liability
appeal
her
from the order con-
does
Brotherton
not assert that the issues
Hapgood,
Sеe
("It
Scott T. Greenwood (argued and briefed), Associates, Greenwood & Cincin- nati, Ohio, for Plaintiffs-Appellants. Garry Edmondson, L. Edmondson, Guenther & Rylee, Covington, Kentucky, Rita Ferguson briefed), (argued and Ken- County Office, ton Attorney’s Covington, Kentucky, for Defendants-Appellees Clyde Middleton, Steve arlinghaus, Nioka John- ston, Moоrman, Bernie Kenton County Fiscal Court.
James J. Grawe (argued briefed), Office General, of the Attorney Civil Divi- sion, Frankfort, Kentucky, Stuart W. Cobb, Office of the Attorney General, Frankfort, Kentucky, for Defendants-Ap- pellees Douglas Stevens, Patricia M. Sum- me, Greg Bartlett, Sheehan, Martin J. Wil- liam Schmaedecke, L. Ruttle, Ann Frank O. Trusty, Mary Ann Woltenberg, Donald C. Buring. Cobb,
Stuart W. Office of the Attorney General, Frankfort, Kentucky, for Defen- dant-Appellee Steven Jaeger. R. Ferguson, Rita County Kenton Attor- Office, ney’s Covington, Kentucky, for De- fendants-Appellees Mark E. Vogt, Ay- Bill lor, Garry L. Edmondson. 5, 1996. Friday,” April of Good BOGGS, servance WELLFORD, Before: the en- signs had Neack
MOORE, Judges. Circuit ob- Plaintiffs Courthouse.1 trances 3,1996, opinion filed J., and, April BOGGS, signs delivered served 578-79), WELLFORD, Judge- (pp. J. against lawsuit court. their opinion. who concurring officials county separate variоus Executive delivered 579-81), whom delivered MOORE, (pp. in the Courthouse J. had over control dissenting opinion. Plaintiffs believed exercised separate defendants”), (the “county the Courthouse BOGGS, Judge. judges officers as various as well against relief injunctive sought in the Court- with offices state courts courts defendants”). and state county (the When “state house *4 court The district Friday. of on Good notification offices received county defendants for judgment summary partial signs had suit, immediately the granted they the Defendants enjoined simply order an- party. Its by signs replaced each and removed an- signs overtly be closed posting building from the nouncing that Defen- permitted and closing nouncing the admitted 5. Defendants April on building and the closing to continue Clause dants the Establishment violated sign for Easter Friday I) CONST, befоre the on the stated on (U.S. and offices amend. the appeal Holiday.” posted “Spring would be signs no such that record injunction an open denial court’s was district The Courthouse in the future. and its closings Friday and 1996, the Good the against 5, although courts April on attorney’s Plaintiffs’ now award Defendants reduced were not. offices most below, we forth set the reasons For before Easter Friday fees. refer to the court the district and judgment the calendars Holiday affirm on their Spring respects. all closing orders. “[although that found court
The district
I
on Good
to be observed
is
closing
the
re-
Christians
day on which
Friday,
the
County,
1995,
Kenton
the
In November
crucifixion,
is no evi-
there
Jesus’
member
Court,
Dis-
the Kenton
Kentucky, Fiscal
closings
office
and
the court
that
dence
Court,
Court,
the
and
Kenton
trict
holi-
the Christiаn
to
related
otherwise
Court-
in the Kenton
located
all
the holi-
that
found
court also
The
day.”
(the
Building
Administration
and
house
Kentucky
Many
event.
day is a secular
adopt-
“Courthouse”),
orders
entered
each
day;
the
that
a vacation
begin
families
closing schedules
ing identical
traffic
according
state
that
court found
1996,
5,
was
April
Friday,
Good
1996.
third-larg-
the
had
statistics,
Friday
Good
dis-
The federal
in the orders.
included
Kentucky high-
on
volume
daily traffic
est
“the courts
that
court found
trict
presented
also
Defendants
in 1995.
ways
on
have closed
[Courthouse]
in the
concerned
were
the courts
evidence
any
years as
many
for as
Friday
Good
on Good
jurors
availability of
about
can remember.”
case
in this
witness
Friday.
Neack,
Depu-
1996,
George
April
early
filed
1996,
court
8,
district
April
On
act-
County,
оf Kenton
Executive
ty Judge
request
denying Plaintiffs’
its order
knowledge or authorization
ing without
Decem-
On
order.
restraining
temporary
an
bearing
defendant,
signs
made
any
filed
1996,
motions
31,
parties
all
announcing ber
Crucifixion
image of the
February
On
judgment.
summary
“for ob-
be closed
building would
holidays.
signs for all the
paring illustrated
with his
evidently spent some time
Neack
pre-
clip-art collection
computer and its
new
Magoffin County,
the district court declared
F.3d
—
(6th Cir.1997),
denied,
U.S. -,
April
Neack
1996 violated
cert.
Clause,
(1998)).
granted
the Establishment
S.Ct.
L.Ed.2d 666
respect
“A
sign.
finding
clearly
with
‘al
Plaintiffs’ motion
erroneous when
injunction
it,
February
support
there is
though
court’s
evidence to
prohibits
posting signs
reviewing
from
Defendants
the entire evidence is
depict
Crucifixion or state that
left
the definite
firm
with
conviction
closing
Friday.
is in observance of
that a mistake has
been committed.’”
Russell,
permits
February
judgment
United States v.
Its
(6th Cir.1998)
(citing
Defendants to continue
their offices
United States
Co.,
“if
Friday
Easter
Gypsum
before
current United States
(1948)).
pursued
Injunction
practices are
II decisions, In more recent the Court argue that the applied district has the “endorsement” test to Es court erred when it granted Defendants’ tablishment Lynch Clause cases. See v. motion summary judgment 668, 687-94, for allowing Donnelly, 465 U.S. 104 S.Ct. (1984) (O’Connor, J„ Defendants to continue Court 79 604 L.Ed.2d Friday house and offices on the concurring) (advocating before a focus on exces Easter. review grant We a district court’s sive entanglement and government en novo, of summary judgment dorsement); de and its Allegheny v. of findings of fact for clear error. Pittsburgh Chapter, Grand ACLU Greater 492 573, 593, Traverse Band Chippewa Ottawa and 106 L.Ed.2d of Director, (1989) Indians v. Mich. 472 Dep’t (applying Natu the endorsement test of Resources, (6th ral 141 F.3d 638 collecting Supreme apply Cir. and Court cases 1998) Cincinnati, (citing City test); Russo v. ing Capitol Square Review of (6th Cir.1992) Pinette, 953 F.2d Advisory Bd. v. Ky. (1995) Eastern v. Rеsources Fiscal Court (adop- 132 L.Ed.2d of of part the second of clarification endorsement of the Justices eight by tion Lemon test. government involving cases test prohibits test endorsement speech). concede Defendants Because a reasonable speech uncon was Neack by the religion of endorsement is an think issue stitutional, substantive the sole government. county closing state whether appeal is the endorse treated Circuit This unconstitutional. Friday is on Good clarification refinement or test as ment considered have circuits Two other United Americans test. See Lemon of the Waihee, 932 v. In Cammack question.2 City v. and State Church Separation of (9th Cir.1991), Circuit the Ninth F.2d 765 1538, 1542-45 F.2d Rapids, Grand of secu Friday has become found that banc) en Cir.1992) (en (applying (6th Hawaii concluded larized in of a clarification test as dorsement holiday without it a declare could state test); American the Lemon part second Clause. Establishment violating Birming City v. Union Liberties Civil (7th Cir. 57 F.3d Leininger, v. Metzl Cir.1986) (6th 1561, 1563 ham, 791 F.2d that an held 1995), the Seventh as a refine test the endorsement (applying Friday a making Good Illinois statute the Lemon parts first two ment unconstitutional, al holiday was school Union Liberties Civil test); American holding its limited though the Wilkinson, Ky. v. invited apparently facts and particular Cir.1990) endorse (6th (applying adopting practice it to its relating to reform own, state without its test on ment closing: City Cleve test); rationale Hawley new Lemon (char Cir.1994) (6th land, 24 F.3d might Cammack, Illinois Building test Allegheny endorsement acterizing the *6 pur- contemporary the that argued have test); Lemon of the version” a “refined as Friday publiс school the pose of Ad Review Square Capitol v. Pinette spring long a provide is to closing law (6th Cir. Bd., 30 F.3d visory [However, argument t]he weekend.... observer 1994) the reasonable (applying in the state’s at hinted than more is no test), Lemon of the refinement as a test premise— its ..., because perhaps brief 2440, 132 753, 115 S.Ct. 515 U.S. aff'd, Hawaii, to create Illinois, wants like that (1995); v. West Kunselman 650 L.Ed.2d public in all its weekend spring long a District, 70 F.3d Local Reserve School ern a made Illinois Had false. schools—is en Cir.1995) the (6th (applying 931, 932 that the announcement official forthright the a clarification test dorsement the closed be shall schools public test); Chaudhu the Lemon part of second give to in order Easter Friday before 232, 236 Tennessee, 130 ri v. State of three-day teachers students Cir.1997) endorsement the (6th (applying com- weekend, than rather spring part of first of the aas clarification test — of Jesus crucifixion the denied, memorate test), cert. Leman the case. a different Christ, might have we L.Ed.2d -, observations (1998). believe We ger more are of a reasonable possibility open the left have [W]e the than analysis effects
mane much the accomplish can Illinois we Accordingly, analysis. purpose secular adopting officially ... thing same in Grand precedent en banc follow our law, the for rationale weekend” “spring test the endorsement consider Rapids and Easter Friday before holiday the from school Fourth the On December does not Easter Monday after the through appeal of Koenick arguments in oral heard Clause). (hold- (D.Md.1997) Felton, the Establishment violate F.Supр. 522 v. public- creating a statute ing a state place governor’s proclamation employee posted rized unconstitutional religious holiday.... sign days. of state for a few suggest two Id. 622-24. These cases presented Plaintiffs have no evidence closings suspect only are if the holiday significant purpose that there is no secular they purpose which instituted is holiday. They argued have Furthermore, religious. implies Metzl sign in 1996 shows a sectarian particular closing that the fact that a was purpose, speculated and have about suspect constitutionally pre- once not does purpose holiday ago; decades how- it being vent from reinstated in a constitu- ever, arguments nothing these do to coun- form. tional ter Defendants’ evidence that there nowis A gоvernment practice need be purpose secular Spring Holiday exclusively part secular to survive the first and, therefore, the arguments do not ad- test; of the Lemon unless it seems to be a part dress the first test. Lemon sham, the of a government’s assertion sec Plaintiffs have that all also asserted future purpose ular is entitled to deference. closings are shams because (6th Cir.1997). Chaudhuri, 130 F.3d at permanently practice tainted the awith us, In the now case before Defendants primarily however, purpose; sectarian we presented evidence that Good Fri credible rejected have this argument. Because day day has become a with secular effects unrefuted, there is credible of a evidence Kentucky. Many in Northern school chil significant рurpose, Spring dren are Spring vacation the following Holiday part satisfies the first of the Lem- week, many Kentucky families start on test. early, their vacations on Friday. Traffic statistics highway show that volume is Supreme Recent Court Establish very high Friday. on Good Courts and jurisprudence ment Clause sets a high bar government expect offices do not much for government assertions excessive en activity public, and the from courts See, tanglement. e.g., Agostini Felton, worry jurors. the availability about 203, 232-36, 2015- Furthermore, policymakers who set (1997). L.Ed.2d case schedules testified that their us, public before required officials are not goal was provide a break for their em all, to make religious determinations at *7 ployees year, at that time conveniently of much on ongoing less They basis. sim day scheduled a light activity on of and ply decide what dates their courts and proximate many families’ vacations. offices will be closed. There is no entan argue that therefore, Defendants’ here; glement Defendants’ intention closing to continue for a Spring practice of the closing Courthouse and of Friday on the before Easter is a Friday fices on the before Easter satisfies argument implies “sham.” This part the third of the Lemon test. for days several in 1996 irre vocably established an endorsement of parts first third of the religion, from which Defendants having satisfied, cannot Lemon test been the re prefer Judge retreat. We Posner’s rea question is maining primary whether the soning in Metzl. If Illinois could rein practice effect of Defendants’ advances or Friday state its a closing religion. аs secular inhibits To question answer this Spring Thus, Weekend celebration after the we apply the endorsement test. explicitly Seventh Circuit question declared its for narrow before isus whether rea unconstitutional, closing mer policy sonable observers would think that Kenton for- tiori we see no that reason County endorsing religion by Defendants’ closing its here, policy if constitutional, Friday otherwise offices on the before Easter. We should not remain so after an they unautho- hold that would not. signifi- may similar that have days other reason- thinks O’Connor Justice religions. cance for some of aware be deemed “must observer
able community of history and context offend- Clause Establishment Nor is the 779-82, Pinette, at U.S. forum,” documents government of dating by ed by Sout- (concurring, joined 115 S.Ct. from events computеd system using JJ.), Stevens while Justice Breyer, appar- er and religion, on the Christian based knowledge to any special impute not in procla- the use official even ently not 799-801, observer, at id. reli- reflecting the reasonable language of mations views See, (dissenting). Both dating system. of that origins gious cases, well. (Proc- in our expressed Comp. have been Pres. Doc. Weekly e.g., 35 1543-44, at Jr. Rapids, King, Luther Grand 7163—Martin lamation Cf. 1999.) de- J.) fairly (imputing (Boggs, January Holiday, 1549-50 Day Federal reasonable to the knowledge local tailed es holidays are way, just the same In J., (Lively, observer) 1557-58 id. at with citi the convenience for tablished general a more (contending for dissenting) often is caused zens, convenience and that knowledge). We less local with may be motivations by individual of scope exact deсide the need The exact religious. secular mix of reason- to be attributed knowledge (declared a Day in Christmas mix involved before in the case observer, because able name, see 5 U.S.C. holiday by federal sparsely-in- Justice Stevens’s us even 6103) thoroughly discussed. been § not believe observer would formed See, Allegheny, e.g., of endorsing religion. were Defendants Thanks 1-5, 109 & nn. many citizens observed Day is giving commonly of our the details Many of deity or anoth to one directed thanks with roots. religious have calendar observed such with no er, citizens by other style of calendar very our includes This though a Sunday, And Easter motivation. Gregory Pope for (the named “Gregorian,” religious significance overwhelming day of replace the XIII, it devised who (albeit Christians, frequently used accurate) cаlen- (and “Julian” less pagan Berlin, Easter Irving see purposes, Caesar). names dar, named Julius of with Parade), universally observed (in of advert to deities English) days our of Sunday. it falls closings, for fice Saturn, the (Saturday, from Romans practice frequent note Finally, we from time) (Tuesday, and Norsemen god or large even with a school districts from Odin; Wednesday, Tiu, the son of population moderate Jewish Thursday, Odin, deity; Woden, the chief Yom holidays of when thunder; schools and Fri- Thor, god from Hashanah, fall times, Rosh Odin). and, at Kippur wife Freyja, day, from Collins, See, M. Lois days. e.g., un- on school (an places language official Spanish *8 Separate Need Details Constitution, 1 see States the United der Professor Church, State, Nov. News, (1998)), for Sun- DeseRet the names § L.P.R.A. theorist (well-known political 1998, at El and Sat- Day) Lord’s (“Domingo” day —the approvingly *9 129, day off (1997). by be Rather, could seen a reasonable they observ- simply er as an show purpose example, that a endorsement. secular For if pub- to schedule the lic establishing functions of one with the cancelling and the convenience of the citi- zenry may in of mind another aegis turn out was done under to be useful the of inter- faiths, variety citizens of a of faith rivalry any or none at without justification, all. addition, examples the remind us might reasonable find endorse- principle argued Plaintiffs, by imper- the ment. No such case is made here.
577 (citations edited; Phelan, F.3d at 373 8 Day- v. Logan judgment.” error of clear added). (6th point A for de starting 789, emphasis 790 F.2d Corp., 865 Hudson ton fee is the so-called a reasonable termining Cir.1989) Immigration v. (citing Balani number of hours the Service, “lodestar” method: F.2d 1157 669 Naturalization litigation the on reasonably expended Cir.1982)). (6th of discretion “An abuse rate, hourly a reasonable multiplied by applies the court when the district exists can court figure; a lodestar the producing cor- standard, misapplies the wrong legal to reflect the de adjust figure then this standard, clearly on or relies legal rect Hensley, 461 obtained. Tech- of success gree First of fact.” findings erroneous 433-34, 103 1933; Cramblit v. S.Ct. at 11 F.3d U.S. Depinet, Safety Sys. v. nology (6th Cir.1994). Fikse, 635 Cir.1993). 33 F.3d (6th bears attorney’s fees party seeking The to enforce proceeding any “In action of proof on number burden of the the 1981, 1981a, of sections provision the claimed. expended and rates hours title, ... 1986 of 433, 103 1933. at S.Ct. Hensley, 461 U.S. discretion, pre- may court, allow in its in Plain- significant The was issue the United other than party, vailing prohibit- injunction litigation, and tiffs’ part attorney’s fee as States, a reasonable overtly religious an future ing signs 1988(b). § costs.” 42 U.S.C. of the on the merits “actual relief nature is party must party,” a “prevailing To be a materially alters [that] claim [their] in issue liti significant any “succeed ... parties relationship between legal of the bene achieves some which gation plain- directly benefits the way in a suit.” bringing parties sought fit the entitled Accordingly, Plaintiffs tiffs.” 424, 433, Eckerhart, 461 v. Hensley U.S. ques- attorney’s The fees. to reasonable (1983) L.Ed.2d 40 whether, awarding us is tion before F.2d Helgemoe, 581 v. (quoting Nadeau $25,- $4,617.95 of the instead Plaintiffs (1st Cir.1978)). In Farrar 275, 278-79 sought, district they 723.75 103, 113, 113 S.Ct. Hobby, v. U.S. abused its discretion. (1992), the Court 121 L.Ed.2d only par- has achieved plaintiff “If ... a ‘prevails’when plaintiff “a explained that success, hours product tial or limited claim merits of his relief on the аctual aas litigation reasonably expended relationship legal materially alters the may rate hourly a reasonable times way that whole ... in a parties between true will be amount. This Id. 506 be an excessive plaintiffs.” directly benefits were in- claims plaintiffs where the [111-12, See even 566]. 113 S.Ct: at U.S. nonfrivolous, good terrelated, and raised Wester Against Tax Waste Citizens Educ.], Hensley, faith.” City [Dist. School Bd. ville very limited Cir.1993). here achieved (6th 255, 257-58 F.2d n injunction they secured a “cen rejected Supreme Court success— against but not signs, require against which would tral issue test” Friday. on Good closing the Courthouse of the issue on main party to succeed Furthermore, found the district court “prevailing.” considered litigation to be sufficiently attorney had “not Sch.], Plaintiffs’ Knox Krichinsky [v. the reason- Cir.1992)] or documented [(6th (citing demonstrаted [847,] hourly rate hours or the ableness v. Garland Teachers Ass’n Texas State judge magistrate Dist., which he claims.” Independent School rate hourly reducing 866 recommended 103 L.Ed.2d 790, 109 S.Ct. prevailing to reflect the from (1989)). Rather, partially party $165 $110 who market legal Covington in the rate local attor to an award prevails entitled sought rate than the Cincinnati rather party’s fees ney’s commensurate mag- Similarly, the attorney Greenwood. Id. success. *10 judge reducing istrate recommended fee are proportional awards to be to the hourly paralegal work from rate party’s degree $50 prevailing of success. The magistrate judge The found that $40. fact that the claims are interrelated is not “very vague list of hours was Greenwood’s plaintiff relevant. If a only limited discrepanciеs,” many success, and contains and that lodestar amount will be exces- ... “appear its excessive entries and re- plaintiffs sive “even where the claims were He interrelated, dundant.” reducing nonfrivolous, recommended and raised in Greenwood’s hours from 126.5 to 110 and good faith.” Hensley, 461 U.S. at his paralegal’s hours from 41.75 to 34.75. magistrate S.Ct. 1933. The calcu- judge’s The magistrate judge provided explicit careful, lations are thorough, explicit, adjustments. enumeration of his The and they justify well both the lodestar lodestar multiplied amount —hours by amount and the conclusion that Plaintiffs $12,100.00 adjustment rate —after only thirty-three entitled to percent of $1,390.00 plus work Greenwood’s for the in lodestar amount view of limit- them paralegal’s work. Therefore, ed success. the district court did not abuse its discretion when it re- mаgistrate judge noted that Plain- duced the award. prevailed only tiffs one of two distinct issues, that they prevailed the issue on was IY early concluded in litigation, before much done, of the work was and that it was Defendants have they done all can do to “ancillary key issue for plain- which prevent any impression that they are en- sought tiffs redress in this case.” The dorsing religion in closing their building magistrate judge concluded that 30% of for a Spring Holiday the work was upon done on the issue which Friday before Easter. Their efforts are prevailed. addition, Plaintiffs the mag- sufficient to offending avoid the Establish- istrate judge found that attorney 3% of ment Clause. sign posted for several Greenwood’s hours should be allowed for days in 1996 does not continue to affect application for attorney’s fees аnd that observers; date, nor does holiday’s Plaintiffs should receive the in $207.95 chosen for secular reasons but measured costs they for which magis- asked. The by the date of a religious holiday, by itself judge trate recommended a total award of cause reasonable observers to believe that $4,617.95. objected Plaintiffs to the Re- Defendants are endorsing religion. There- port, primarily first, on two grounds: fore, that we AFFIRM the judgment of the the action arose in “greater Cincinnati” district respects. court in all and that Cincinnati rates be should used calculation; WELLFORD, second, lodestar Judge,
the issues were “intimately concurring. related” such for partial reduction inap- success is I in Judge concur Boggs’ opinion in this propriate. 7,1997, On October the district difficult I case. do not opin- construe the court objections overruled Plaintiffs’ and ion, however, as the dissenting judge adopted Report. infer, seems to holding that it is consti- objections,
Plaintiffs’ which are the same tutionally permissible public schools arguments appeal, advanced on are un- with sizeable Jewish student bodies founded. The rate awarded close for Jewish That holidays. is the same rate awarded the court question Rather, is not before us. I see attorneys with experience more than opinion reference as showing Greenwood for work in Ken- Northern that apparently viewpoint is wide- tucky. In their objection, second spread, particular and that circumstances simply overlook the paragraphs of Phelan of religious significance are intertwined and Hensley clearly stating attorney’s with secular point considerations. The
579 the Kenton Friday for of Good choice reason secular legitimate ais if there that As date, Ante at-. holiday. County spring given on a facilities closing public matter, formu I this believe that of an initial at a time falls date chosen that that should the burden citizenry, understates lation of some observance religious case. in this by the defendants to close un- borne be decision render the does not not purpose is example, totally “a secular Although Thanksgiving, constitutional. Birmingham, City to some v. ACLU required,” connotations strong religious of denied, (6th Cir.), cert. celebrations F.2d 1565 faiths; 791 religious services public L.Ed.2d 371 day, 939, 107 but the 93 that S.Ct. place on may take purpose (1986), the “secular of thanks it clear that closing recognition (back heritage) ... does to the Puritan is not satisfied requirement ... Deity purpose, unconstitutional. this some secular existence of not render mere purposes.” by religious dominated however point my agreement with also I note 690-91, 465 Donnelly, U.S. Lynch v. at action official’s public a mistaken (1984) 604 L.Ed.2d 79 104 S.Ct. with enjoined (subsequently the outset (O’Connor, Supreme concurring). J. the Coun- against fees assessed costs and how dominant has not declared Court setting taint permanently ty) does test, this under must be purpose secular of weekend holiday on the spring aof requirement trivializing the to avoid but percep- perceive public I do not Easter. actual primary or should examine we endorse- “widespread governmental tion of of the selection that underlies purpose action under con- in the religion” ment of id. holiday. See official Friday as an sideration. (O’Connor, J., con 1355 104 S.Ct. not be need purpose government’s “The ... asks whether prong (“purpose curring) exclu ... for a ‘[f]oeus exclusively secular purpose is endorse actual government’s component signifi religious sively on the v. religion”); Wallace disapprove of or Jaf inevitably lead activity would any cance of 38, 56, 86 ’ 472 free, U.S. govern ... [T]he to its invalidation.... (1985) (same); v. Edwards 29 L.Ed.2d secular legitimate of a assertion ment’s 590-92, 578, 585, 107 482 Aguillard, U.S. Chau to deference.” purpose entitled (address (1987) 510 96 L.Ed.2d S.Ct. Tennessee, F.3d v. State dhuri of [sic],” “actual,” “pre “predominate ing omitted). (citations cir.1997) If (6th of eminent,” purpose stat “primary” occurred, it religion of any endorsement Waihee, 932 ute); v. also see Cammack Chaudhuri, inci “indirect and was, inas Cir.1991) (Nelson, J., (9th 765, F.2d view, and wаs not uncon my dental,” dissenting). under the Establishment action stitutional Clause. more However, arguably even under this followed standard deferential dissenting. MOORE, Judge, Tennessee, in Chaudhuri — closing practice hold that I would denied, Cir.1997), (6th cert. and offices courts county the state L.Ed.2d -, Fri- Kentucky, on Good County, Kenton legitimate no (1998), I would conclude fails to holiday, purely day, a We been shown. purpose has secular and secu- purpose satisfy both secular course, establish focus, not on must of our Establishment prongs lar effects on the selec holiday but spring of a ment I re- Accordingly, jurisprudence. Clause holiday. Friday for of Good tion dissent. spectfully purpose Here, purported accommodate Friday is to on Good the secular majority asserts jurors, employees, plans the travеl test is satis- the Lemon prong of purpose It is noted that courts. use the who a others is “credible evidence there fied if government other many schools and behind the purpose” significant secular day, are closed on and the defendants Monday April March or serve *12 provided highway have state that well. statistics is, indeed, Friday demonstrate that Good a Likewise, I cannot agree with the major very busy day. Closing travel to accom- ity’s view that it is constitutionally permis generated modate travel that is by other public sible for schools with sizable Jewish equally governmental unconstitutional ob- student-bodies to close for Jewish religious Friday servances of the Good holiday does holidays. In either case the religious not constitute a legitimate purpose, secular neеds of the can observant be accommo did, however. If it a state government dated public without institution could religious observe any holiday without on holiday endorsing and particular
violating purpose test, the secular if it religion. The government closure of of closed schools offices throughout and Christmas, fices on Thanksgiving, enough state and citizens took advantage is, Sundays, believe, I easily distinguish of the holiday to travel. able from closure on Good Friday or Rosh Moreover, Despite Hashanah. their religious I conclude that the selection origins, holidays the former of Good now secu Friday the spring holiday vio significant larized to a extent. See lates the secular effects test. ques ACLU, Allegheny tion, 579 & majority observes, as the correctly is of 3, 109 3086, 106 n. (1989) L.Ed.2d 472 whether “a reasonаble observer con would (secular Christmas); dimensions of id. at clude message communicated is (O’Connor, J., S.Ct. 3086 concur one of either disapproval endorsement or ring) (Thanksgiving a celebration patri Chaudhuri, religion.” 237. values); otic v. Maryland, McGowan The majority I disagree, however, on 420, 451-52, 6 L.Ed.2d message that is in this communicated (1961) (secular aspects of Sunday). instance. view, the majority’s the mes simply same cannot be said for the sage transmitted is one of local govern holidays.1 latter ment officials choosing holiday date is convenient employees others, I recognize that requiring the defen- while'minimizing the religious significance dants to adopt an spring alternative holi- the holiday. believe, I on the other day, e.g., Friday March, the last in could hand, (of that a reasonable obsеrver either some temporary create inconvenience.2 the O’Connor persuasion) or Stevens all, After the Kenton County Judge Execu- would discern government state local tive cannot dictate a change government and school agreeing officials close a holidays throughout However, the state. date has purely Western Christian we cannot allow the decentralization of significance and, thus, would perceive making decision within the county state or widespread governmental endorsement of to insulate a governmental entity from its religion. view, In my the reasonable ob obligations under the Establishment server would not conclude that conve Moreover, Clause. nothing precludes nience dictated the selection of Fri and local оfficials from agreeing state day as a spring uniform holiday because an alternative uniform spring holiday, and she would realize that any given Friday or were we to hold in plaintiffs, favor I mystified 1. am somewhat majority's me majority’s analogy trivializes the reference origins of the-names issue before us. days. government, No to my knowl- edge, and, has dictated the days, names of the go It saying should without that the fact that even if these officially recognized, names are spring holiday that is based on the secular no reasonable calendar, observer would sense in their March, Friday such as the last use an endorsement of my- Roman or Norse occasionally coincides Friday with Good thology. Given the dominance of Western would not render the unconstitution- Christian country, belief in this appears it al. should, suspect that I we Ias believe happen. what exactly govern- of the institutions
The closure mark traditional country is a in this ment De- respect. observance of solemn I see no adoption, can widespread its spite govern- in the legitimate purpose *13 holi- purely sectarian observing this ment lacking and, spring date because day, well, I serve as would significance a reasonable believe that of Western an endorsement perceive I Accordingly, dissent. Christianity. INC., doing NOE, business THOMAS Cards, Vintage & Coins Plaintiff-Appellant, INSURANCE COMPA HOMESTEAD As NY; American Collectibles North sociation, Defendants-Appellees. 98-3257.
No. Appeals, Holmes, (argued Court of States Sr. United Martin J. Neff, Shindler, briefed), Sixth Circuit. Holems & Schla- OH, Toledo, Plaintiff-Appellant. geter, Feb. Argued briefed), (argued Alan M. Petrov 21, 1999. April Deсided (briefed), A. Monica P. Timothy Whitford (briefed), Sharp, Ful- Gallagher, Sansalone Cleveland, OH, Norman, for Defen- ton & dants-Appellees. NELSON, JONES,
Before: BOGGS, Judges. Circuit
OPINION NELSON, Judge. A.
DAVID action, arising under diversity This is asserts law, coin dealer in which a Ohio policy insurance property claim under currency coins of certain for the value notes Sabbath) Michael Walzer have also (“Sábado” urday —the Yom and on Christmas closings seriously, school no one Yet roots. religious reasons”); religious “for not Kippur are successfully, contended certainly not and Tenni- Patricia Rubin Bonnie Miller offended Clause is the Establishment Victims’ Console son, Help Memories names, by nor of those by the use Friends, September Families, Trib., almost closing public Chi. practice drive successful (obituary notes (the observed day Sunday universally on Hashanah to add “Rosh Christians) by gentile frequently hоly most as Chicago in holidays” as school Kippur Yom (the by Jews day observed Saturday on in most students ... though “even Christians) suburb to the exclusion and some Jewish”); Editorial, the district were particular sons of a faith does not render SyRacuse Was, The Week That closing Post-Stan unconstitutional. 25, 1997, Jan. at A8 (noting DARD, A person reasonable who knew that Friday Kippur Albany Yom as school many people in private and other public Syracuse Staff, holidays); Profiles, School employment in the community day had the Aug. (same, in Post-Standard, travel, off and plans made and that the Fayetteville-Manlius District); School Courthouse had been closed on Good Fri- Camlot, Why Heather Synagogue Atten day many years, would not think that dance Days Year, Soars Three Each the closing was an endorsement of religion Telegraphic Agency, Aug. Jewish explicit absent an endorsement such as the (Rosh at 8A Hashanah and Kippur Yom sign in involved this case. Because Defen- closings “many public schools”); see dants enjoined have been from future ex- also, Northern Indiana Public Service Co. plicit endorsements, closings future will v. Certain Lloyd’s Underwriters at Lon not make a person reasonable don, think that (N.D.Ind.1996) 1996 WL *9 Defendants were endorsing (unpublished) religion. (depositions shall not be Plaintiffs are correct that sign posted scheduled on within day one of certain in 1996 days could including Good make a Friday reasonable Kip and Yom think pur); Stanfa, U.S. v. 1996 WL *1 Defendants endorsed the Chris- (E.D.Pa. 1996) July (unpublished) However, tian (jury religion. we hold that the excused “in observance of Kippur”); Yom for several days past in a year Myerson, U.S. v. F.Supp. 41, 45 by an errant official did not permanently (S.D.N.Y.1988) (trial postponed for Rosh taint the closings, and that a reasonable Hashanah). Few would argue that any of person contemplating a Spring Holiday practices these are done to establish the celebrated on the Friday before Easter religion, Jewish but rather as a secular would not conclude that Defendants were recognition practicalities of school or endorsing religion. court attendance that might otherwise be disrupted, Friday much as the before the Ill Kentucky Derby is a holiday for in schools area, the Louisville lest attendance be dis argue that the district rupted by observance of a tradition that erred when it awarded them approaches religious character the area $4,617.95in attorney’s rather fees than the of this Judge’s chambers.3 $25,723.75 they requested. We review short, In- awards long attorney’s so fees finding can be for abuse of dis made that cretion. significant Bell, there is Phelan v. 8 F.3d (6th reason Cir.1993) for closing any particular date, a (citing Setter, Perotti v. finding that (6th district judge Cir.1991)). made in “Abuse of case and did not err so finding, the fact discretion is defined as a definite and firm also per- convenient for conviction that the trial court committed meant, examples 3. These are not as has missibility been any public action measured suggested by article, one law review imply dates, ecclesiastical would have far-reaching parceling favors, out of so much to implications. Christians and so much to See Jews. Burton imply Nor do we Caine, there could never be Agenda”: "The Liberal Biblical Values an instance where the Amendment, public declaration of a the First Law Touro Rev.