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Lund v. Rowan County

United States District Court, M.D. North Carolina

May 4, 2015





BEATY, United States District Judge.

This matter is before the Court on the respective Motions for Summary Judgment of Defendant Rowan County [Doc. #51] and Plaintiffs Nancy Lund, Liesa Montag-Siegel, and Robert Voelker [Doc. #52]. The motions are fully briefed and ripe for adjudication. Plaintiffs contend that Defendant's prayer practice is distinguishable from that at issue in Town of Greece v. Galloway, 134 S.Ct. 1811, 188 L.Ed.2d 835 (2014), and constitutes unconstitutional coercion in violation of the First Amendment's Establishment Clause. Defendant argues that Town of Greece controls and permits its legislative prayer practice. For the reasons discussed below, the Court will grant Plaintiffs' Motion and deny Defendant's Motion.


Nancy Lund, Liesa Montag-Siegel, and Robert Voelker (" Plaintiffs" ) are residents of Rowan County, North Carolina, and each has attended multiple meetings of the Rowan County Board of Commissioners (" the Board" ). Commissioners are elected to the Board, and Defendant Rowan County (" Defendant" ) exercises its powers as a governmental entity through the Board. The Board usually holds two public meetings per month. From at least November 5, 2007, until the initiation of the present lawsuit in March 2013, the Board regularly opened its meetings with a Call to Order, an Invocation, and the Pledge of Allegiance, in that order.[1] Once called to order, the Board Chair typically asked or directed everyone in attendance to stand for the Invocation and Pledge of Allegiance, at which point either the Chairman or another member of the Board would deliver the invocation or prayer.[2] All of the Commissioners stood for the Invocation and Pledge of Allegiance, and the Commissioners almost always bowed their heads during the Invocation. Frequently, the prayer-giver would begin the prayer with a phrase such as " let us pray" or " please pray with me." The majority of the audience members would join the Board in standing and bowing their heads during the prayer. Between November 5, 2007, and the filing of Plaintiffs' Complaint, 139 of 143 Board meetings--in other words, 97%--opened with a Commissioner delivering a sectarian prayer invoking Christianity. For example, the prayers normally included references to Jesus, the Savior, and other tenets of the Christian faith. No invocation delivered since November 5, 2007, referenced a deity specific to a faith other than Christianity.

On February 12, 2012, the American Civil Liberties Union of North Carolina Legal Foundation sent the Board a letter explaining that the sectarian nature of its Invocations violated the First Amendment of the United States Constitution, based on then-governing Fourth Circuit precedent.[3] The letter requested a response indicating the Board's planned course of action, but the Board did not formally respond. However, certain Commissioners did make public statements indicating their intentions to continue delivering Christian invocations at Board meetings. For example, then-Commissioner Carl Ford declared to the local television news, " I will continue to pray in Jesus' name. I am not perfect so I need all the help I can get, and asking for guidance for my decisions from Jesus is the best I, and Rowan County, can ever hope for." (Compl. [Doc. #1], at ¶ 31.) Commissioner Jim Sides stated in an e-mail obtained by local media that he would " continue to pray in JESUS name . . . I volunteer to be the first to go to jail for this cause . . . and if you [Commissioner Mitchell] will [get] my bail in time for the next meeting, I will go again!" (Id.) Commissioner Jim Sides also made other publicly disseminated statements--albeit not specifically regarding objections to the Board's prayer practice--regarding his views on religious minorities: " I am sick and tired of being told by the minority what's best for the majority. My friends, we've come a long way -- the wrong way. We call evil good and good evil." (Pls.' Mem. Law Supp. Mot. Summ. J. [Doc. # 53], at 3.)

On March 12, 2013, Plaintiffs filed a Motion for Preliminary Injunction [Doc. #5] and a Verified Complaint [Doc. #1] asserting claims of First Amendment violations against Defendant pursuant to 42 U.S.C. § 1983. Specifically, the Complaint contended that Defendant violated the Establishment Clause by delivering sectarian legislative prayers and by coercing Plaintiffs to participate in religious exercises. Plaintiffs have attended multiple Board meetings at which they have witnessed Commissioners deliver sectarian, Christian-themed prayers. Plaintiffs, none of whom are Christian, each attested to feeling coerced by Defendant's prayer practice. At each meeting attended by Plaintiffs Nancy Lund and Liesa Montag-Siegel, the Board Chair " asked or requested that all stand for the invocation and Pledge of Allegiance," and as a result, " each member of the Board stood as did everyone [they] saw in the audience." (Pls.' Ex. A, Lund Aff. [Doc. #6-1], at ¶ 9; Pls.' Ex. B, Montag-Siegel Aff. [Doc. #6-2], at ¶ 9.) Plaintiff Lund averred that the prayer practice caused her to feel excluded from the community and the local political process, and further, that she felt " compelled to stand so that [she] would not stand out," at the Board meetings. (Pls.' Ex. A, Lund Aff. [Doc. #6-1], at ¶ ¶ 9-11.) Plaintiff Montag-Siegel likewise objected to the sectarian prayers delivered by the Board, stating that the prayers caused her to feel excluded at meetings, excluded from the community, and coerced into participating in the prayers which were not in adherence with her Jewish faith. Plaintiff Montag-Siegel averred that " the prayers sent a message that the County and Board favors Christians and that non-Christians, like [her], are outsiders." (Pls.' Ex. B, Montag-Siegel Aff. [Doc. #6-2], at ¶ 10.)

Plaintiff Robert Voelker similarly objected to the Board's prayer practice, averring that the prayers caused him to " feel uncomfortable and excluded from the meeting and the political community," as well as " coerced," and " like an outsider at a governmental meeting." (Pls.' Ex. C, Voelker Aff. [Doc. #6-3], at ¶ ¶ 9-10.) Plaintiff Voelker further stated that he felt pressured to stand and participate in the prayers because at each meeting he had attended, Commissioners and most audience members stood during the invocation, and he " stood because the Invocation goes directly into the Pledge of Allegiance, for which I feel strongly I need to stand." (Id. at ¶ 7.) Plaintiff Voelker also expressed concern about the sectarian prayer practice at a Board meeting and proposed a non-sectarian prayer that the Board could use instead to open meetings. Plaintiff Voelker now fears " that the [Board]'s clear disagreement with [his] public opposition to sectarian prayer could make [him] a less effective advocate on other issues" he cares about, and that he now " would have to think seriously about whether [he] would speak up out of fear [his] dissent . . . would make [him] a less credible and effective advocate in the eyes of the Rowan County Commissioners." (Id. at ¶ 13.)

The Board's invocation practice was completed according to a long-standing tradition of the Board. The Board has no written policy regarding its legislative prayer practices, but the Commissioners' post-litigation affidavits establish that each Commissioner gave the invocation on a rotating basis. Each Commissioner stated that " [t]he Commission respects the right of any citizen to remain seated or to otherwise disregard the Invocation in a manner that is not disruptive of the proceedings." (Def. Affs. [Docs. #23-1--#23-5], at ¶ 14.) Likewise, the Commissioners all attested to the invocation being given for the benefit of the Board and for the purpose of solemnizing the meetings. The Board, in their respective affidavits, further averred that citizens may leave the room during the Invocation or arrive after the Invocation has been delivered, and that such actions would not impact citizens' rights to participate in the meetings.

Based on then-controlling circuit precedent, this Court granted Plaintiffs' Motion for Preliminary Injunction [Doc. #5] on July 23, 2013. This Court enjoined Defendant from knowingly and/or intentionally delivering or allowing to be delivered sectarian prayers at meetings of the Rowan County Board of Commissioners during pendency of this suit. In the same Memorandum Opinion and Order [Doc. #36], this Court denied Defendant's Motion to Dismiss [Doc. #22] and denied Defendant's Motion to Stay Proceedings [Doc. #30]. On May 5, 2014, the Supreme Court issued its opinion in Town of Greece v. Galloway, 134 S.Ct. 1811, 188 L.Ed.2d 835 (2014), upholding sectarian legislative prayers as delivered at the Town of Greece's Town Council meetings. On January 20, 2015, the Parties here filed their respective Motions for Summary Judgment, arguing the merits of the present case predominately based upon the holdings of Town of Greece.


Pursuant to Rule 56 of the Federal Rules of Civil Procedure, a court shall grant summary judgment when there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Zahodnick v. Int'l Bus. Machs. Corp., 135 F.3d 911, 913 (4th Cir. 1997). " In considering a motion for summary judgment, the district court must 'view the evidence in the light most favorable to the' nonmoving party." Jacobs v. N.C. Admin. Office of the Courts, No. 13-2212, 780 F.3d 562, at *12, (4th Cir. Mar. 12, 2015) (quoting Tolan v. Cotton, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (per curiam)). A court's belief that the movant would prevail on the merits at trial is insufficient to grant a motion for summary judgment. Jacobs, 780 F.3d 562, at *12. The court cannot make credibility determinations or weigh evidence, and " must disregard all evidence favorable to the moving party . . . that a jury would not be required to believe." Edell & Assocs., P.C. v. Law Offices of Peter G. Angelos, 264 F.3d 424, 436 (4th Cir. 2001); see Jacobs, 780 F.3d 562, at *12-13. However, the party opposing summary judgment may not rest on mere allegations or denials, and the court need not consider " unsupported assertions" or " self-serving opinions without objective corroboration." Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).


Both Parties contend that no genuine issue of material fact remains for trial, and accordingly, this Court should enter judgment as a matter of law. The Parties focus their arguments almost exclusively on the rules of legislative prayer espoused in the Supreme Court's recent Town of Greece decision. However, Defendant also raises a legislative immunity argument. Thus, the Court must preliminarily consider whether legislative immunity applies in the present situation. To the extent that the Court concludes that legislative immunity does not shield Defendant from the present claims, the Court's analysis will then consider the present facts under the framework provided in Town of Greece. Furthermore, to the extent the Court concludes that Defendant's present prayer practice falls outside the practice approved of in Town of Greece, the Court will consider whether Defendant's particular practice exercised here is impermissibly coercive in violation of the Establishment Clause.

A. Legislative Immunity

In a lengthy footnote, Defendant suggests that legislative immunity shields the Board from suit based on the prayers given at Board meetings. (Def.'s Br. Supp. Summ. J. [Doc. #54], at 13 n.4.) Defendant essentially argues that the prayers are a product of the individual Commissioners acting in their legislative capacities, for which they are immune from suit pursuant to the Speech or Debate Clause of the Constitution. In supporting its Motion to Dismiss [Doc. # 22], Defendant hinted at this argument, positing that " Plaintiffs have sued the wrong Defendant by naming Rowan County. The actions Plaintiffs complain of . . . are entirely the choices of five separate Commissioners acting in their individual . . . capacities." (Def.'s Br. Supp. Mot. Dismiss [Doc. #23], at 1.) Initially, and as Defendant acknowledges, the Court notes that the defendant in this lawsuit remains only Rowan County, not the individual Commissioners in their official capacities. This Court, in an Order previously entered, has already rejected Defendant's arguments that municipal liability did not apply, based upon a determination that the actions of the Commissioners constituted a custom or policy attributable to Defendant Rowan County.

Nonetheless, Defendant asserts that legislative immunity can be applied to the municipality in the present case. However, Defendant's own arguments and authorities used earlier in this case foreclose this argument. Defendant cited to Berkley v. Common Council of City of Charleston, 63 F.3d 295, 299 (4th Cir. 1995) (en banc), in arguing for dismissal because the lack of any policy or legislation prevented a finding of municipality liability. Berkley, however, clearly explains how Supreme Court and Fourth Circuit precedent soundly establish that legislative immunity does not apply to municipalities. Id. at 300 (" Our holding today that a municipality does not enjoy immunity with respect to the acts of its legislative body, thus, should come as no surprise." ). In a case cited by Defendant in its present argument, Bogan v. Scott-Harris, 523 U.S. 44, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998), only the individuals in their official capacities were claiming legislative immunity, and only those individual defendants were before the Supreme Court when it determined immunity extended to the officials' actions. Id. 523 U.S. 44 at 47-48 & n.1, 118 S.Ct. 966, 969, 140 L.Ed.2d 79 & n.1. Thus, while Bogan held that local legislators are entitled to the same legislative immunity as their federal and state counterparts, Bogan did not extend that immunity to a defendant-municipality. Id. at 53 (" Municipalities themselves can be held liable for constitutional violations . . . ." ). Municipalities, including the present Defendant, are therefore not accorded legislative immunity. Berkley, 63 F.3d at 296, 300; see Hake v. Carroll Cnty., No. WDQ-13-1312, at *10-11 (D. Md. Aug. 13, 2014) (magistrate judge's recommendation) (rejecting nearly identical argument of legislative immunity for defendant county when county commissioners offered legislative prayers); Doe v. Pittsylvania Cnty., 842 F.Supp.2d 906, 917-919 (W.D. Va. 2012) (refusing to extend legislative immunity to county board of commissioners because (1) the county and the board were governmental entities not eligible for such immunity and (2) regardless, legislative prayer is not a legitimate legislative activity protected by legislative immunity).

To the extent Defendant suggests that Defendant is immune because the prayers constitute speech of the individual Commissioners, such an argument is without merit. Under Fourth Circuit precedent, the prayers delivered by the Board are government speech, not private speech. See, e.g., Turner v. City Council, 534 F.3d 352, 354-355 (4th Cir. 2008) (holding that prayers delivered by members of a City Council were government speech and not private speech). Defendant nonetheless directs the Court to the two-part legislative immunity test of Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 2627, 33 L.Ed.2d 583 (1972), in applying the protections of the Speech or Debate Clause. The Board's practices here fail to warrant immunity under Gravel because legislative prayers are not integral to the legislative process, and moreover, the members of the Board are not being sued in their individual capacities. See Hake, at *10-11; Pittsylvania Cnty., 842 F.Supp.2d at 917-919.

Gravel itself defined the scope of the Speech or Debate Clause, which Defendant attempts to rely upon, as reaching speech, debate, or conduct that is " an integral part of the deliberative and communicative process by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House." Gravel, 408 U.S. at 625, 92 S.Ct. at 2627. This does not capture every official act of a legislator, " but only [those matters] necessary to prevent indirect impairment of such deliberations." Id. (quotations omitted) (quoting with approval the Court of Appeals's description of the limits of the Speech or Debate Clause); see Roberson v. Mullins, 29 F.3d 132, 135 (4th Cir. 1994) (declaring that function of a local government body is legislative only " when it engages in the process of 'adopting prospective, legislative-type rules.'" (quoting Front Royal & Warren Cnty. Indus. Park Corp. v. Town of Front Royal, 865 F.2d 77, 79 (4th Cir. 1989))). Legislative bodies can and do successfully function absent a legislative prayer practice. As such, prayer can hardly be considered necessary or integral to local government's legislative processes. See Pittsylvania Cnty., 842 F.Supp.2d at 919-20.

Simply stated, Defendant's legislative immunity arguments are inapplicable here, where Plaintiffs claim that the defendant-municipality's practice violated their constitutional rights, and where the activity complained of is not integral to the legislative process. Accordingly, the Court rejects Defendant's legislative immunity argument and next turns to the merits of Plaintiff's ...

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