IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT KAROTINE HOLIDAY DISPLAY GROUP; CHURCH OF KAROTINE; RUSS L. BELL.

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1 IN THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT KAROTINE HOLIDAY DISPLAY GROUP; CHURCH OF KAROTINE; RUSS L. BELL Appellants, v. CITY OF DALTON, a political subdivision of the State of Rhode Island; DALTON DISPLAY AGENCY; and BENJAMIN LINUS in his official capacity as the Chairman of the Dalton Display Agency Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND RECORD Steven Zundell 14 Final Round The Paul, Weiss, Rifkind, Wharton & Garrison Moot Court Program Harlan Fiske Stone Moot Court Competition 1

2 TABLE OF CONTENTS QUESTIONS PRESENTED... 4 STIPULATIONS... 5 CONSTITUTIONAL PROVISIONS... 7 STATUTORY PROVISIONS... 8 LEGISLATIVE HISTORY STATEMENT OF JURISDICTION PLAINTIFFS COMPLAINT DEFENDANTS ANSWER DEFENDANTS MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF LAW IN SUPPORT Exhibit A: Transcript of the Deposition Testimony of: Chai Ya La PLAINTIFFS CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF LAW IN SUPPORT.. 41 Exhibit 1: Display Size Chart Exhibit 2: 2013 Karotine Holiday Display Group Display Exhibit 3: 2012 Karotine Holiday Display Group Display Exhibit 4: 2012 letter from Dalton Display Agency to Karotine Holiday Display Group Exhibit 5: 2012 letter from Dalton Display Agency to Jewish Hanukah Group Exhibit 6: 2012 letter from Dalton Display Agency to Putting Christ Back in Christmas Group Exhibit 7: 2013 letter from Dalton Display Agency to Karotine Holiday Display Group Exhibit 8: 2013 letter from Dalton Display Agency to Jewish Hanukah Group Exhibit 9: 2013 letter from Dalton Display Agency to Putting Christ Back in Christmas Group Exhibit 10: 2012 Jewish Hanukah Group Display Exhibit 11: Hebrew blessing affixed to 2012 Jewish Hanukah Group Display Exhibit 12: 2012 Putting Christ Back in Christmas Display Group Display Exhibit 13: Affidavit of Russ L. Bell Exhibit 14: Affidavit of P. Joseph Stewart Exhibit 15: Affidavit of William B. Moreland Exhibit 16: Affidavit of Howard B. Colvin Order and Opinion

3 Notice of Appeal ORDER

4 QUESTIONS PRESENTED 1. Whether the Dalton Holiday Display Ordinance violates the Establishment Clause of the United States Constitution in permitting certain holiday displays including religious holiday displays to be larger than other displays; and in providing government funding for overtly religious holiday displays? 2. Whether the Dalton Holiday Display Ordinance violates the Freedom of Speech Clause of the United States Constitution in prohibiting holiday displays from being displayed in two of Dalton s public fora and subjecting holiday displays to regulation in the sole permitted public forum; and in penalizing groups spending money beyond a specified amount on their holiday displays by matching additional spending, on a dollar for dollar basis, to qualifying groups? 4

5 STIPULATIONS 1. The only issues on appeal are: a. Whether the Dalton Holiday Display Ordinance violates the Establishment Clause of the United States Constitution in permitting certain holiday displays including religious holiday displays to be larger than other displays; and in providing government funding for overtly religious holiday displays? b. Whether the Dalton Holiday Display Ordinance violates the Freedom of Speech Clause of the United States Constitution in prohibiting holiday displays from being displayed in two of Dalton s public fora and subjecting holiday displays to regulation in the sole permitted public forum; and in penalizing groups spending money beyond a specified amount on their holiday displays by matching additional spending, on a dollar for dollar basis, to qualifying groups? 2. Only rely on facts within the Record; do not dispute any factual assertions within the Record. (The state of the world exists as it does in reality EXCEPT where the Record makes a specific assertion). 3. Do not address Free Exercise claims. 4. Do not address severability. All parties agree that if any part of The Dalton Holiday Display Ordinance is unconstitutional then the entire statute must be stricken. 5. Do not address any jurisdictional or justiciability concerns. All named parties have standing. 6. Address all issues; brief and argue the case assuming that the Court will reach the merits of each issue. 7. Do not address whether the appeal follows the correct appellate procedure. The parties stipulate that a timely appeal was filed. 8. Assume all evidence and exhibits in the Record were properly admitted. 9. The displays depicted in Exhibits 2 and 3 are each twenty-five-square-feet. 10. The display depicted in Exhibit 10 is fifty-five-square-feet. 11. The display depicted in Exhibit 12 is thirty-five-square-feet. 12. The First Circuit Court of Appeals will only consider federal case law prior to February 28, Briefs should be in a twelve-point font with one-inch margins. 5

6 14. The Church of Karotine is a fictitious religion which celebrates the religious holiday of Karota on December Your final stipulation should be: [Insert Name of Partner 1] wrote the first section and [Insert Name of Partner 2] wrote the second section. 6

7 CONSTITUTIONAL PROVISIONS U.S. Const. amend. I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. U.S. Const. amend. XIV 1: [N]or shall any state deprive any person of life, liberty, or property, without due process of law.... 7

8 STATUTORY PROVISIONS The Public Forum Ordinance, 4 Dalt. 8 (January 5, 1916). (Repealed 2004). (c) Holiday Displays. At the sole discretion of the mayor, the City shall fund public displays of the holidays that are celebrated by the citizens of Dalton. 8

9 6 Dalt. 3 (April 2, 2004). (Repealed 2007). (a) Definitions. For purposes of this ordinance, the following definitions shall apply: 1. Holiday Display shall be defined as any display that reasonably appears to promote, endorse, celebrate, or criticize any holiday. 2. City Square shall be defined as the square directly behind the City Council on Main Street between Lehcar Avenue and Mairim Place 3. Dalton Park shall be defined as the northern corner of the park which has historically been used for public displays. 4. Dalton Road shall be defined as the area on the public street in front of the empty lot on Sherman Avenue, between Thomas Street and Chancellor Street, which has historically been used for public displays. (b) Holiday Displays in Public Fora. No Holiday Displays, either public or private, may be displayed in City Square, Dalton Park, or Dalton Road. 9

10 Restoring Holiday Displays Ordinance, 10 Dalt. 8 (March, ). (Repealed 2012). (a) Definitions. For purposes of this ordinance, the following definitions shall apply: 1. Holiday Display shall be defined as any display that reasonably appears to promote, endorse, celebrate, or criticize any holiday. 2. City Square shall be defined as the square directly behind the City Council on Main Street between Lehcar Avenue and Mairim Place 3. Dalton Park shall be defined as the northern corner of the park which has historically been used for public displays. 4. Dalton Road shall be defined as the area on the public street in front of the empty lot on Sherman Avenue, between Thomas Street and Chancellor Street, which has historically been used for public displays. (b) Holiday Displays in Public Fora. Any Holiday Display may be displayed in City Square, Dalton Park or Dalton Road (c) Display Funding There will be no public funding for any Holiday Displays. Private groups may spend whatever they want on their individual displays. (d) Sign Requirement Every Holiday Display in City Square, Dalton Park, or Dalton Road shall display a clear sign indicating that the Holiday Display is created, displayed, and funded by a private, nongovernment group. 10

11 The Dalton Holiday Display Ordinance, 21 Dalt. 14 (February 28, 2012). Preamble: An act to promote peace, tolerance, and unity in the City of Dalton. (a) Definitions. For purposes of this ordinance, the following definitions shall apply: 1. Holiday Season shall be defined as the period from November 15 to January Holiday Display shall be defined as any display that reasonably appears to promote, endorse, celebrate, or criticize any holiday. 3. Holiday Group shall be defined as any group of Dalton residents, each of whom contributes to the creation, assembly, or maintenance of a Holiday Display. 4. Contribute shall be defined as a donation of at least one dollar. 5. City Square shall be defined as the square directly behind the City Council on Main Street between Lehcar Avenue and Mairim Place 6. Dalton Park shall be defined as the northern corner of the park which has historically been used for public displays. 7. Dalton Road shall be defined as the area on the public street in front of the empty lot on Sherman Avenue, between Thomas Street and Chancellor Street, which has historically been used for public displays. (b) Displays During the Holiday Season 1. IN GENERAL (A) During the Holiday Season, only Holiday Displays but no other displays or signs may be erected or displayed in City Square. (B) During the Holiday Season, Holiday Displays may not be erected in the other two designated public fora Dalton Park or Dalton Road. (C) Every Holiday Group may erect one Holiday Display in the City Square including religious displays. (D) City Square shall display a clear sign that the Holiday Displays are created and displayed by private, nongovernment groups. 2. DISPLAY SIZE (A) The basic Holiday Display may be up to twenty-five-square-feet. (B) For every one-thousand Contributors to a Holiday Group, the Holiday Display may be an additional five-square-feet. 3. DISPLAY FUNDING (A) Each Holiday Display shall be funded by a Holiday Group, except as provided in subsection (b)(3)(b)-(d) of this ordinance. (B) If any Holiday Group spends more than $1,000 dollars per squarefoot on its City Square Holiday Display, then the City will penalize that group by providing public funding to match the excess dollars spent per square-foot to any other Holiday Group that spent between $900 and $1,000 per square-foot, subject to the limitations of subsection (b)(3)(b)(i)-(ii). 11

12 I. The maximum public funding that any Holiday Group may receive per year under subsection (b)(3)(b) shall not exceed $50,000. II. The maximum public funding that the City shall spend under subsection (b)(3)(b) shall not exceed $500,000 per III. year. If the public funding under subsection (b)(3)(b) is limited by subsection (b)(3)(b)(ii), then each eligible Holiday Group shall receive funding on a pro rata basis. (c) Classifying Displays Before any display may be put up at any time in either City Square, Dalton Park, or Dalton Road, it must first be submitted to the Dalton Display Agency to be officially designated as either a Holiday Display or a non-holiday Display. (d) The Dalton Display Agency 1. The Dalton Display Agency shall: (A) Classify every display that is submitted under (c) within 3 business days; (B) Insure that there are no duplicative displays in the City Square during the Holiday Season; (C) Recognize any group of Dalton residents that contribute to the creation, assembly, or maintenance of a Holiday Display as a Holiday Group unless otherwise provided by this ordinance. 2. The Dalton Display Agency is charged with creating and enforcing such rules as are necessary to enforce this ordinance. 12

13 LEGISLATIVE HISTORY Councilman Thomas Sawyer s comments on introducing The Dalton Holiday Display Ordinance, C , at 11 (Dalton, February 28, 2012). As everyone knows, over the last years Dalton has struggled with the appropriate way to publicly celebrate the Holidays. For a long time, the public holiday display was fully at the discretion of the Mayor. In practice, this meant that only Christmas was celebrated publicly. Obviously, this was less than satisfactory as the population of Dalton changed and became more diverse. Consequently, in 2004, this Council passed an Ordinance which disallowed any holiday displays on government property. This struck many as an overreaction, un-american and Scrooge-like. After that brief experiment, we decided to try again. We passed a new law that allowed any and all holiday displays at any public forum. I don t need to remind everyone here what havoc the new law caused. Various displays were damaged or destroyed. The competition for the best public display led to significant tension and strife among the various religious groups. We needed to station police 24/7 around the public displays to prevent further vandalism. Besides the general unpleasantness this caused, it also stretched our tight City budget. I ve spoken to many residents of Dalton, in particular religious and civic leaders, and they all say the same thing. The status-quo is simply not tenable. They want change. They want a more organized system for public holiday displays. Therefore, after much thought and additional consultation with officials from cities and towns all across America, I have taken the lead in drafting a new Holiday Ordinance. It has a few notable provisions I want to mention. One, between November 15 and January 15, no holiday displays will be allowed in either Dalton Park or Dalton Road. I drafted it this way so, in case police protection is again necessary, they will only have to watch and protect one area of the City. Two, in City Square, the size of the Holiday Displays will be determined strictly based on the number of members the erecting group has. This will make sure that everyone is treated exactly equally. It is a democracy after all. Lastly, the bill attempts to discourage groups from spending excessive amounts on their public holiday displays. I really believe this Ordinance will solve, once and for all, Dalton s problems with public holiday displays. It will lower the tension among our various religious and cultural groups and allow all Dalton residents to celebrate the Holidays with an American spirit. 13

14 STATEMENT OF JURISDICTION 1. The United States District Court for the District of Rhode Island had original jurisdiction under 28 U.S.C. 1331, 2201, and The United States Court of Appeals for the First Circuit has jurisdiction from final judgments of the United States District Court for the District of Rhode Island under 28 U.S.C

15 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND KAROTINE HOLIDAY DISPLAY GROUP; CHURCH OF KAROTINE; RUSS L. BELL Case No.: 04-RMW Plaintiffs, vs. CITY OF DALTON, A POLITICAL SUBDIVISION OF THE STATE OF RHODE ISLAND; DALTON DISPLAY AGENCY; AND BENJAMIN LINUS IN HIS OFFICIAL CAPACITY AS THE CHAIRMAN OF THE DALTON DISPLAY AGENCY Defendants, JANUARY 16, 2014 PLAINTIFFS COMPLAINT Introduction 1. This complaint is a challenge to the Dalton Holiday Display Ordinance, 21 Dalt. 14 (February 28, 2012) ( Ordinance or DHDO ), facially and as applied to Plaintiffs. The Ordinance is unconstitutional because subsections (b)(1)(b), (b)(2)(a)-(b), and (b)(3)(b), facially and as applied, run afoul of both the Establishment and Freedom of Speech Clauses of the First Amendment of the United States Constitution. Jurisdiction and Venue 2. This Court has jurisdiction pursuant to 28 U.S.C. 1331, 2201, and Venue in this Court is proper pursuant to 28 U.S.C. 1391(b) and (e). Parties 4. Plaintiff Karotine Holiday Display Group ( KHDG ), is a Holiday Group, so recognized by the Dalton Display Agency under subsection (d)(1)(c) of the DHDO, 15

16 located at 1988 Marlo Avenue, Dalton, Rhode Island. Each of KHDG s members is also a member of the Karotine Church. 5. Plaintiff Karotine Church is a religious, domestic, non-profit corporation with a principal place of business in Dalton, Rhode Island. It has sixty-one active members and is located at 1988 Marlo Avenue, Dalton, Rhode Island. 6. Plaintiff Russ L. Bell is a resident of Dalton, Rhode Island, and lives at 22 Bodie Avenue. He is both a member of, and the largest donor to, the Karotine Church and the Karotine Holiday Display Group. In 2012 and 2013 he donated 4 and 7 million dollars, respectively, to the Karotine Church. In 2012 he donated $1,000,000 to the KHDG, but in 2013 he donated only $24,500 to the KHDG. 7. Defendant City of Dalton ( the City or Dalton ) is a municipal corporation duly organized and existing under the laws of the State of Rhode Island. 8. Defendant Dalton Display Agency ( DDA ) is an agency created by the City and subject to the laws and requirements of the City. 9. Benjamin Linus is the Chairman of the Dalton Display Agency and is being sued in his official capacity. Claim One: The Dalton Holiday Display Ordinance violates the Establishment Clause of the First Amendment of the United States Constitution The Establishment Clause Applies Against the City of Dalton 10. The First Amendment of the U.S. Constitution provides: Congress shall make no law respecting an establishment of religion.... U.S. Const. amend. I. 11. The Establishment Clause is made applicable against the states via the Fourteenth Amendment. See Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1 (1947). 16

17 Subsections (b)(2)(a) and (b)(2)(b) of the Dalton Holiday Display Ordinance violate the Establishment Clause. 12. Subsection (b)(1)(a) of the Dalton Holiday Display Ordinance provides: During the Holiday Season, only Holiday Displays but no other displays or signs may be erected or displayed in City Square. 21 Dalt. 14 (b)(1)(a). 13. Subsection (b)(2)(a) provides: The basic Holiday Display may be up to twentyfive-square-feet. Id. 14. Subsection (b)(2)(b) provides: For every one-thousand Contributors to a Holiday Group, the Holiday Display may be an additional five-square-feet. Id. 15. In effect, during the holiday season in Dalton, the only public place in which holiday displays are permitted is City Square; and in City Square, the Ordinance permits certain holiday displays including explicitly religious displays to be larger than other holiday displays including explicitly religious displays in violation of the Establishment Clause. 16. In 2012 there were four Holiday Groups officially recognized by the Dalton Display Agency under subsection (d)(1)(c) of the DHDO: a. The Turkey Thanksgiving Group, a group with 7,523 contributors which created a display of a turkey. b. The Jewish Hanukah Group, a group with 6,613 contributors which created a display of a menorah with a Hebrew blessing on a placard next to it. c. The Putting Christ Back in Christmas Group, a group with 2,910 contributors which created a display of a nativity scene with a banner containing the phrase All glory to Jesus, my loving King. 17

18 d. The Karotine Holiday Display Group, a group with 44 contributors which created a display of the Karota Spirit. 17. In 2013 there were four Holiday Groups officially recognized by the Dalton Display Agency under subsection (d)(1)(c) of the DHDO: a. The Turkey Thanksgiving Group, a group with 7,432 contributors which created a display of a turkey. b. The Jewish Hanukah Group, a group with 6,603 contributors which created a display of a menorah with a Hebrew blessing on a placard next to it. c. The Putting Christ Back in Christmas Group, a group with 2,996 contributors which created a display of a nativity scene with a banner containing the phrase All glory to Jesus, my loving King. d. The Karotine Holiday Display Group, a group with 41 contributors which created a display of the Karota Spirit. 18. Therefore, under subsection (b)(2)(a)-(b) of the DHDO, during both 2012 and 2013, the Turkey Thanksgiving Group display was permitted to be sixty-square-feet; the Jewish Hanukah Group display was permitted to be fifty-five square-feet; the Putting Christ Back in Christmas Group display was permitted to be thirty-five-square-feet; and the Karotine Holiday Display Group display was permitted to be only twenty-fivesquare-feet. 19. Permitting the Thanksgiving Group, the Jewish Hanukah Group, and the Putting Christ Back in Christmas Group displays to be larger than the KHDG display violates the Establishment Clause. 18

19 Subsection (b)(3)(b) of the Dalton Holiday Display Ordinance violates the Establishment Clause. 20. Subsection (b)(3)(b) of the Dalton Holiday Display Ordinance provides: If any Holiday Group spends more than $1,000 dollars per square-foot on its City Square Holiday Display, then the City will penalize that group by providing public funding to match the excess dollars spent per square-foot to any other Holiday Group that spent between $900 and $1,000 per square foot Dalt. 14 (b)(3)(b). In effect, government funds can potentially flow directly to a Holiday Group to fund an explicitly religious holiday display in violation of the Establishment Clause. 21. In 2012, the Karotine Holiday Display Group spent $1,000,100 on its twentyfive-square-foot holiday display which equaled $40,004 per square-foot. a. The Turkey Thanksgiving Group, the Jewish Hanukah Group, and the Putting Christ Back in Christmas Group each spent between $900 and $1000 per square-foot on their respective Holiday Displays. b. Under subsection (b)(3)(b), the Turkey Thanksgiving Group, the Jewish Hanukah Group, and the Putting Christ Back in Christmas Group would have been entitled to $39,004 per square-foot in matching funds as a penalty against the Karotine Holiday Display Group. c. However, subsection (b)(3)(b)(i) limited each group s allocation to $50,000. d. The City of Dalton s provision of $50,000 in funding to both the Jewish Hanukah Group display and the Putting Christ Back in Christmas Group display violates the Establishment Clause. 19

20 Claim Two: The Dalton Holiday Display Ordinance violates the Freedom of Speech Clause of the First Amendment of the United States Constitution The Freedom of Speech Clause Applies Against the City of Dalton 22. The First Amendment of the U.S Constitution provides: Congress shall make no law... abridging the freedom of speech.... U.S. Const. amend. I. 23. The Freedom of Speech Clause is made applicable against the states via the Fourteenth Amendment. See Gitlow v. New York, 268 U.S. 652 (1925). Subsection (b)(1)(b) of the Dalton Holiday Display Ordinance violates the Freedom of Speech Clause. 24. Subsection (b)(1)(b) of the Dalton Holiday Display Ordinance provides: During the Holiday Season, Holiday Displays may not be erected in the other two designated public fora Dalton Park or Dalton Road. 25. Not allowing the Plaintiffs to erect holiday displays in two of Dalton s public fora during the Holiday Season violates the Freedom of Speech Clause. 26. Additionally, during the Holiday Season, the KHDG display in the one permissible public forum is subject to onerous regulation under subsection (b)-(d), in violation of the Freedom of Speech Clause. Subsection (b)(3)(b)of the Dalton Holiday Display Ordinance violates the Freedom of Speech Clause. 27. Subsection (b)(3)(b) of the Ordinance provides: If any Holiday Group spends more than $1,000 dollars per square-foot on its City Square Holiday Display, then the City will penalize that group by providing public funding to match the excess dollars spent per square-foot to any other Holiday Group that spent between $900 and $1,000 per square foot

21 28. The effect of the ordinance is, in the ordinance s own language, to penalize and disincentivize Holiday Groups from spending money on their Holiday Displays in violation of the Freedom of Speech Clause. 29. In 2012, the Karotine Holiday Display Group spent $1,000,100 on its holiday display. As a result, subsection (b)(3)(b) penalized the speech of KHDG by awarding $50,000 each to the Turkey Thanksgiving Group, the Jewish Hanukah Group, and the Putting Christ Back in Christmas Group, to use on their holiday displays in City Square, in violation of the Freedom of Speech Clause. 30. In 2013, as a direct result of the newly adopted ordinance, the Karotine Holiday Display Group spent only $25,000 on its Holiday Display. The extreme decline in the Holiday Display expenditure was, principally the result of Russ L. Bell reducing his 2012 contribution of $1,000,000 to a 2013 donation of $24,500. Mr. Bell drastically reduced his contribution because the penalty of subsection (b)(3)(b) awarded $50,000 each to the Turkey Thanksgiving Group, the Jewish Hanukah Group, and the Putting Christ Back in Christmas Group to use on their own Holiday Displays in City Square, effectively drowning out the speech of Mr. Bell. Prayer for Relief Wherefore, Plaintiffs pray for the following relief: 31. A judgment and order declaring unconstitutional all provisions of the Dalton Holiday Display Ordinance that violate the First Amendment 32. Any other relief deemed appropriate. Dated this 16 of January,

22 /s Pearson Hardman 22

23 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND KAROTINE HOLIDAY DISPLAY GROUP; CHURCH OF KAROTINE; RUSS L. BELL Case No.: 04-RMW Plaintiffs, vs. CITY OF DALTON, A POLITICAL SUBDIVISION OF THE STATE OF RHODE ISLAND; DALTON DISPLAY AGENCY; AND BENJAMIN LINUS IN HIS OFFICIAL CAPACITY AS THE CHAIRMAN OF THE DALTON DISPLAY AGENCY Defendants, JANUARY 21, 2014 DEFENDANTS ANSWER Defendants City of Dalton ( Dalton ), Dalton Display Agency ( DDA ), and Benjamin Linus (collectively Defendants ), through their undersigned counsel, respond as follows to the original complaint in this litigation, denying everything not given a specific response. 1. DENY Jurisdiction and Venue 2. ADMIT 3. ADMIT Parties 4. ADMIT the first sentence. Defendants are without knowledge or information sufficient to form a belief as to the truth of the facts in the second sentence. 5. ADMIT the first and third sentences. Defendants are without knowledge or information sufficient to form a belief as to the truth of the facts in the second sentence. 23

24 6. ADMIT the first sentence. Defendants are without knowledge or information sufficient to form a belief as to the truth of the facts in the second and third sentence. 7. ADMIT 8. ADMIT 9. ADMIT CLAIM ONE 10. This paragraph quotes the First Amendment to the United States Constitution, which speaks for itself, and no response is required. 11. This paragraph contains plaintiffs legal conclusions, which do not require a response. 12. This paragraph quotes 21 Dalt. 14 (b)(1)(a), which speaks for itself, and no response is required. 13. This paragraph quotes 21 Dalt. 14 (b)(2)(a), which speaks for itself, and no response is required. 14. This paragraph quotes 21 Dalt. 14 (b)(2)(b), which speaks for itself, and no response is required. 15. To the extent this paragraph attempts to describe 21 Dalt. 14 (b), the ordinance speaks for itself, and no response is required. To the extent this paragraph contains plaintiffs legal conclusions, no response is required. 16. ADMIT a. ADMIT b. ADMIT c. ADMIT 24

25 d. ADMIT 17. ADMIT a. ADMIT b. ADMIT c. ADMIT d. ADMIT 18. ADMIT 19. This paragraph contains plaintiffs legal conclusions, which do not require a response. 20. To the extent this paragraph quotes 21 Dalt. 14 (b)(3)(b), the ordinance speaks for itself, and no response is required. To the extent this paragraph contains plaintiffs legal conclusions, no response is required. 21. ADMIT a. ADMIT b. This paragraph attempts to describe 21 Dalt. 14 (b)(3)(b), which speaks for itself, and no response is required. c. To the extent that this paragraph attempts to describe (b)(3)(b)(i), the ordinance speaks for itself, and no response is required. To the extent that this paragraph states the amount of funding dispensed, ADMIT. d. This paragraph contains plaintiffs legal conclusions, which do not require a response. 25

26 CLAIM TWO 22. This paragraph quotes the First Amendment to the United States Constitution, which speaks for itself, and no response is required. 23. This paragraph contains plaintiffs legal conclusions, which do not require a response. 24. This paragraph attempts to describe 21 Dalt. 14 (b)(1)(b), which speaks for itself, and no response is required. 25. This paragraph contains plaintiffs legal conclusions, which do not require a response. 26. To the extent this paragraph attempts to describe 21 Dalt. 14 (b)(3)(b)-(d), the ordinance speaks for itself, and no response is required. To the extent this paragraph contains plaintiffs legal conclusions, no response is required. 27. This paragraph quotes 21 Dalt. 14 (b)(3)(b), which speaks for itself, and no response is required. 28. This paragraph attempts to describe 21 Dalt. 14 (b)(3)(b), which speaks for itself, and no response is required. 29. ADMIT the first sentence. To the extent this paragraph attempts to describe 21 Dalt. 14 (b)(3)(b), the ordinance speaks for itself, and no response is required. To the extent this paragraph contains plaintiffs legal conclusions, no response is required. 30. Defendants are without knowledge or information sufficient to form a belief as to the truth of the facts in this paragraph. 26

27 Prayer for Relief 31. Plaintiffs prayer for relief does not require a response, but insofar as an answer is deemed necessary, Defendants DENY that plaintiffs are entitled to the requested relief or to any relief whatsoever. 32. Plaintiffs prayer for relief does not require a response, but insofar as an answer is deemed necessary, Defendants DENY that plaintiffs are entitled to the requested relief or to any relief whatsoever. Dated this 21 of JANUARY, /s Alicia Florrick 27

28 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND KAROTINE HOLIDAY DISPLAY GROUP; CHURCH OF KAROTINE; RUSS L. BELL Case No.: 04-RMW Plaintiffs, vs. CITY OF DALTON, A POLITICAL SUBDIVISION OF THE STATE OF RHODE ISLAND; DALTON DISPLAY AGENCY; AND BENJAMIN LINUS IN HIS OFFICIAL CAPACITY AS THE CHAIRMAN OF THE DALTON DISPLAY AGENCY Defendants, FEBRUARY 10, 2014 DEFENDANTS MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF LAW IN SUPPORT Defendants City of Dalton, et al. ( Defendants or Dalton ), move for summary judgment on Counts I-II of the complaint on the ground that there is no genuine issue as to any material fact and [they are] entitled to judgment as a matter of law. Fed. R. Civ. P. 56. I. The Dalton Holiday Display Ordinance does not violate the Establishment Clause. 1. Karotine Holiday Display Group, et al, ( Plaintiffs or Karotine ) alleges that the Dalton Holiday Display Ordinance ( DHDO or the Ordinance ) violates the Establishment Clause because: (1) subsection (b)(2) created a system in which the Karotine Holiday Display Group ( KHDG ) display was not permitted to be the same size as Holiday Displays of Holiday Groups with significantly more contributors; and (2) subsection (b)(3) created a mechanism through which two religious Holidays Groups received government funding. 28

29 2. Subsections (b)(2) and (b)(3) do not violate the Establishment Clause under either the Lemon test, Lemon v. Kurtzman, 403 U.S. 602 (1971), or the endorsement analysis, first articulated by Justice O Connor in her concurrence in Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O Connor, J., concurring), and applied by a majority of the Court in County of Allegheny v. ACLU, 492 U.S. 573 (1989). As such, the Ordinance does not violate the Establishment Clause. A. Subsection (b)(2) and related provisions of the DHDO do not violate the Establishment Clause. 3. Subsection (b)(2) of the Ordinance passes Constitutional muster under Lemon. a. First, the primary purpose of the Ordinance is secular, as explicitly stated in the Preamble: An act to promote peace, tolerance, and unity in the City of Dalton. This stated purpose is entitled to judicial deference. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000). The stated purpose is not a sham. See excerpt of Deposition Transcript of Chai Ya La, Exhibit A. Therefore, the first Lemon prong is satisfied. b. Second, the Ordinance s principal or primary effect neither advances nor inhibits religion; it merely creates a designated public forum for the display of all Holiday Displays, subject to neutral size restrictions. Therefore, the second Lemon prong is satisfied. c. Third, the Ordinance does not foster an excessive entanglement between government and religion. Under subsection (c), the Dalton Display Agency merely classifies displays as either Holiday or non-holiday, not as religious or non-religious. Therefore, the third Lemon prong is satisfied. 4. Subsection (b)(2) of the Ordinance passes Constitutional muster under the endorsement test. Under the related endorsement analysis, courts must consider whether 29

30 the challenged governmental action has the purpose or effect of endorsing, favoring, or promoting religion. Freedom From Religion Found. v. Hanover Sch. Dist., 626 F.3d 1, 10 (1st Cir. 2010). a. All displays in City Square including the displays of the Turkey Thanksgiving Group, the Jewish Hanukah Group, and the Putting Christ Back in Christmas Group are privately created and funded. See subsection (b)(3)(a). Private religious displays on public property do not violate the Establishment Clause. See Bd. of Educ. of Westside Cmty. Sch. v. Mergens By & Through Mergens, 496 U.S. 226, 250 (1990). b. The Ordinance does not prefer one religion over another or generally prefer religion over non-religion. See Exhibit A. All Holiday Displays in City Square may be at least twenty-five square feet. The additional permitted size of the displays of the Turkey Thanksgiving Group, the Jewish Hanukah Group, and the Putting Christ Back in Christmas Group is exclusively the direct result of genuine and independent private choice. Zelman v. Simmons-Harris, 536 U.S. 639, 640 (2002). c. Subsection (b)(1)(d) ensures that City Square contains a sign that makes clear that all displays are paid for, and created, by private non-government groups. Therefore, subsection (b)(2) passes Constitutional muster under the endorsement analysis. 5. Therefore, Plaintiffs are entitled to judgment as a matter of law. Fed. R. Civ. P

31 B. Subsection (b)(3) of the DHDO does not violate the Establishment Clause. 6. Subsection (b)(3) of the DHDO passes Constitutional muster under the Lemon test. a. The primary purpose of subsection (b)(3) is secular: to disincentivize Holiday Groups from spending money on Holiday Displays in order to discourage competition and anger. See Exhibit A. The Ordinance explicitly refers to fund matching as a penal[ty]. Therefore, the first Lemon prong is satisfied. b. Subsection (b)(3) is neutral in all respects towards religion, as it applies with equal force to both secular and religious Holiday Displays. There is no financial incentive to skew the program in favor of religious Holiday Displays. See Witters v. Washington Dep t of Servs. for the Blind, 474 U.S. 481, 488 (1986). Both the penalty and benefit of the fund matching provision apply to both religious and secular beneficiaries on a nondiscriminatory basis. See Agostini v. Felton, 521 U.S. 203, 205 (1997). Therefore, subsection (b)(3) passes Constitutional muster under the Lemon test. 7. Subsection (b)(3) of the Ordinance passes Constitutional muster under an endorsement test because no reasonable observer would think a neutral program of private choice, where state aid reaches religious [groups] solely as a result of the numerous independent decisions of private individuals, carries with it the imprimatur of government endorsement. Zelman, 536 U.S. at Therefore, Plaintiffs are entitled to judgment as a matter of law. Fed. R. Civ. P

32 II. The Dalton Holiday Display Ordinance does not violate the Freedom of Speech Clause. 9. KHDG alleges that the DHDO violates the Freedom of Speech Clause because: (1) Under subsection (b)(1)(a), a display that celebrates Karota or any Holiday may not be erected in Dalton Park or Dalton Road during the Holiday Season; and (2) because subsection (b)(3) disincentivized the KHDG and its members from spending money on their Holiday Display. A. Subsection (b)(1)(b) of the DHDO does not violate the Freedom of Speech Clause. 10. Dalton Park and Dalton Road are designated public fora because each is created by purposeful governmental action. Arkansas Educ. Television Comm n v. Forbes, 523 U.S. 666, 677 (1998). 11. Subsection (b)(1)(b) permissibly designates Dalton Park and Dalton Road as limited public fora. See Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 470 (2009) ( A government entity may create a forum that is limited to use by certain groups or dedicated solely to the discussion of certain subjects ). 12. The DHDO permissibly excludes Holiday Displays from the class of permissible speech in Dalton Park and Dalton Road. The State may be justified in reserving [its forum] for certain groups or for the discussion of certain topics. Id. (quoting Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)). 13. Subsection (b)(1)(b) excludes religious Holidays Displays including KHDG displays from Dalton Park and Dalton Road only as part of a permissible restriction on all Holiday Displays. See Summum, 555 U.S. at 470. Therefore subsection (b)(1)(b) does not violate the Freedom of Speech Clause. 32

33 14. Even if Dalton Park and Dalton Road are traditional public fora, see Perry Educ. Ass n v. Perry Local Educators Ass n, 460 U.S. 37, 45 (1983), subsection (b)(1)(b) is a permissible time, place, and manner regulation, see United States v. Grace, 461 U.S. 171, 177 (1983), because it only applies during the Holiday Season and leaves open another channel of communication City Square. Therefore, it does not violate the Freedom of Speech Clause. 15. Therefore, Plaintiffs are entitled to judgment as a matter of law. Fed. R. Civ. P. 56. B. Subsection (b)(3) of the DHDO does not violate the Freedom of Speech Clause. 16. Funding to match spending does not qualify as a burden on Free Speech outside of the competitive context of electoral politics in Arizona Free Enter. Club s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, 2818 (2011). Holidays and Holiday Displays are simply not a winner-take-all competition. 17. Nor does subsection (b)(3) constitute a substantial burden on Free Speech. See Davis v. Fed. Election Comm n, 554 U.S. 724, 740 (2008). a. Subsection (b)(3) does not prevent the KHDG from doing anything at all. It merely imposes a penalty on any Holiday Group that spends an extravagant sum of money on its Holiday Display in City Square. Holiday Groups are still free to spend whatever they like on their displays. See Exhibit A. b. Additionally, or alternatively, KHDG or its members are free to spend unlimited resources on any display on private property. 33

34 c. KHDG or its individual members are free to celebrate, proselytize, and discuss any holiday with no limitation on expenditures except for the subsection (b)(3) limitation on Holiday Displays in City Square. d. Any religious but non-holiday Display may be located in Dalton Park and Dalton Road free from any limitation on expenditures. 18. Therefore, Plaintiffs are entitled to judgment as a matter of law. Fed. R. Civ. P. 56. Conclusion The allegations of Plaintiffs Karotine Holiday Display Group, et al. that the DHDO violates the First Amendment are meritless. As there are no genuine issues of material fact, Defendants are entitled to judgment as a matter of law, and this Court should grant summary judgment to Defendants. Dated this 10 of February, /s Alicia Florrick 34

35 Exhibit A: Transcript of the Deposition Testimony of: Chai Ya La Page 1 Transcript of the Deposition Testimony of: Chai Ya La Date: February 1, 2014 Case: Church of Karotine, et al. v. City of Dalton, et al. Case No.: 04-RMW

36 Page 4 Q: What is your name? A: Chai Ya La. Q: What is your occupation? A: I am the Commissioner of the Dalton Police Department. Q: How long have you been in that position? A: Since Q: And before that? A: I was the Deputy of Operations for the department from 1986 until my promotion. Q: And before that? A: I was promoted to Major. Q: When did you first begin working at the department? A: My rookie year was 1970, I have been there 44 years. Q: Do you remember the The Public Forum Ordinance? A: Yes. Q: How did it work? A: Well, there would be a big display every year in City Square. Q: What kind of display? A: We had a big Christmas tree every year and nativity scene. Nothing else. Everyone would gather and the Mayor would light the tree. First Mayor Thomas Karkety and then, when his son became mayor, Paul took over the lighting. That s just how it was, nobody really questioned it. Q: Do you know why The Public Forum Ordinance was repealed? 36

37 Page 5 A: Well, everyone knows why. There are two reasons really. First, the city was changing. Different people moved in and lighting only a Christmas tree to represent the City celebrating the holidays stopped making as much sense. Q: And second? A: Yea, well, after Paul passed away, the new Mayor just wasn t the same. The Karketys are revered in this city. Once it was Mayor James lighting that tree, things felt different. People were no longer happy with just one display. There are different kinds of people and different religions. One tree just didn t do it anymore. Q: And how did people react? A: People didn t like it. There was just a lot of complaining at the ceremony so the city got rid of it entirely. Q: You mean the no holiday display rule? A: Yes. The city council just decided that it wasn t worth the headache. So they said no more. Q: No more holiday displays on public property? A: Right. Q: And how did the city react to that? A: Not well. People were really unhappy. Each year things got worse. At first there was some grumblings. Eventually, things kind of boiled over in A few people put up private displays on public property and we had to take them down. It was a whole big 37

38 ordeal. We were taking down displays of Santa Clause and Menorahs. So my department is on the news looking un-american. Nobody was happy. Page 6 Q: So that s when the Restoring Holidays Ordinance was passed? A: Yes, in It was a few months after the day we took down the displays. Q: And how did that ordinance work? A: Well, the council just decided that the City looked bad. So it decided to allow private parties to put up any displays they wanted. Q: Meaning what? A: Well, meaning, that Dalton has three public areas City Square, Dalton Road, and Dalton Park. The new ordinance just said you can put up any holiday display that you wanted, but the City was not going to fund them. Q: And how did that ordinance work? A: Oh it was chaos. Well actually the first year was fine. Everyone kind of just did their own thing and put up whatever they wanted in City Square. The next year Q: Can you describe City Square? A: Yes. Directly behind the City Council building is an open square area which is connected to the building by a long stretch of grass. During most of the year, the City holds some events there. Q: Is the area generally open to the public? A: Anyone can walk there, unless there is an event being held. But unless there is an event or it is during the Holiday Season, nobody really goes there. Q: Were any displays put up in the other two fora? 38

39 A: Not many, City Square is where most of displays went. It's by far the most public area and it's also where the old Christmas tree was. Dalton Road is just this small area in front of a vacant lot. It s about a twenty-five by five foot empty space between the sidewalk and the lot. People usually hang flyers and advertisements there. Q: So you were saying, what happened in the second year of the ordinance? A: Well, the Karotine Church put up a display for the first time. It put up this pretty extravagant display. It was huge and expensive. It made all other displays seem insignificant. It was strange, the church had like fifty members and, somehow, was putting up this display. Anyway, vandals burned the display down, but we never caught Page 7 them. The next year, as the Karotine display was being erected someone threw a rock at one of the Karotine adherents, and the Menorah display was vandalized with an anti- Semitic message. Oh, and a couple of the Christmas Displays were graffitied. Q: That was all one year? A: Yes, Q: What happened the next year? A: The next year we had a 24 hour police presence at City Square and there were no incidents. Q: And in 2009? A: The same thing, we had a 24 hour police presence and there were no incidents. It was the same in 2010 as well. Q: What happened in 2011? 39

40 A: Well, we had the budget problem. So we couldn t pay the overtime. Anyway, it had been a few years so we thought it wouldn t be a problem. Q: But it was? A: Yes. The Karotine display was bigger and more extravagant than ever, and on the first night it was burned to the ground. The next day we reinstituted the 24 hour police presence. But we couldn t really afford it. The city had enough. Q: And that s what led to The Dalton Holiday Display Ordinance? A: Yes, it's just, I think, it was the only way. We couldn t police the area 24/7, so we needed some way to keep everybody happy. And to unite the city. Q: Did it work? A: Well, in the two years that the new ordinance has been in operation, we have not had police in City Square and there has been no vandalism. 40

41 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND KAROTINE HOLIDAY DISPLAY GROUP; CHURCH OF KAROTINE; RUSS L. BELL Case No.: 04-RMW Plaintiffs, vs. CITY OF DALTON, A POLITICAL SUBDIVISION OF THE STATE OF RHODE ISLAND; DALTON DISPLAY AGENCY; AND BENJAMIN LINUS IN HIS OFFICIAL CAPACITY AS THE CHAIRMAN OF THE DALTON DISPLAY AGENCY Defendants, FEBRUARY 17, 2014 PLAINTIFFS CROSS-MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF LAW IN SUPPORT Plaintiffs Karotine Holiday Display Group ( KHDG ), Church of Karotine, and Russ L. Bell (collectively Plaintiffs ), cross-move for summary judgment on Counts I and II of their complaint on the grounds that there is no genuine issue as to any material fact and [they are] entitled to judgment as a matter of law. Fed. R. Civ. P. 56. I. The Dalton Holiday Display Ordinance violates the Establishment Clause. 1. The Dalton Holiday Display Ordinance ( DHDO ) violates the Establishment Clause in two ways. 41

42 a. First, subsection (b)(2) impermissibly allowed certain Holiday Displays to be larger than others. In 2012 and 2013, the Karotine Holiday Display Group was limited to a twenty-five square-foot display in City Square, while the Jewish Hanukah Group put up a fifty-five-square-foot display and the Putting Christ Back in Christmas Group put up a thirty-five-square-foot display. See Display Size Chart attached as Exhibit 1;Photos of the 2012 and 2013 Karotine Holiday Display, attached as Exhibits 2-3; and Letters from Dalton Display Agency, attached as Exhibits 4-9. b. Second, subsection (b)(3) impermissibly provided government funding for overtly religious holiday displays. In 2012, Dalton provided $50,000 to the Jewish Hanukah Group to fund the display of a menorah with a Hebrew blessing on a placard next to it. See Photos of menorah display and Hebrew blessing, attached as Exhibits Additionally, Dalton provided $50,000 to the Putting Christ Back in Christmas Group to fund a display of a nativity scene with a banner containing the phrase All glory to Jesus, my loving King. See Photos of nativity scene display and banner, attached as Exhibit 12. A. The DHDO restrictions on display size violate the Establishment Clause. 2. The Ordinance is unconstitutional under each prong of the Lemon test. See Lemon v. Kurtzman, 403 U.S. 602, (1971); Freedom From Religion Found. v. Hanover Sch. Dist., 626 F.3d 1, 7 (1st Cir. 2010) ( The Supreme Court has articulated three interrelated analytical approaches: the three-prong analysis set forth in Lemon v. Kurtzman; the endorsement analysis; and the coercion analysis. ) (internal citations and quotation marks omitted). 42

43 a. The Ordinance fails the first prong of the Lemon test because it does not have a secular legislative purpose. Id at 612. The true purpose is to promote Holiday Displays, most of which are of religious holidays. The fact that the DHDO purports to have a secular purpose is not dispositive. Rather it is up the courts to determine the real purpose of the Ordinance. See Wallace v. Jaffree, 472 U.S. 38, 75 (1985). Therefore, the Ordinance violates the Establishment clause. b. The Ordinance fails the second prong of the Lemon test because its primary effect both advances and inhibits religion. See Lemon 403 U.S. at 612. It is well settled that the Establishment Clause means: [A] state can [not] pass laws which aid one religion, aid all religions, or prefer one religion over another. Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1, 15 (1947) (emphasis added). Subsection (b)(2) has the primary effect of aiding the Jewish and Christian religions not coincidentally the dominant religious groups in Dalton and inhibiting the less popular religion Karotine. A law that plainly prefers some religions over others clearly violates the Establishment Clause. The Ordinance is not saved by the reasoning in Lynch v. Donnelly. 465 U.S. 668 (1984). Therefore, the Ordinance violates the Establishment Clause. c. The Ordinance also fails the third prong of the Lemon test because it creates an excessive government entanglement with religion. See Lemon, 403 U.S. at 612. Before any sign may be put up in any of the three fora, subsection (c) requires it to be officially designated as either a Holiday Display or a non-holiday Display by the Dalton Display Agency. Subsection (d)(1)(b) empowers the Dalton Display Agency to [i]nsure that there are no duplicative displays in the City Square during the 43

44 Holiday Season. The agency is required to view religious Holiday Displays and decide whether they are duplicative of another religious display. Subsections (c) and (d)(1)(b) entangle the Dalton Display Agency with religion and, therefore, the Ordinance violates the Establishment Clause. 3. The Ordinance also violates the Establishment Clause under the endorsement analysis, first articulated by Justice O Connor in her concurrence in Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O Connor, J., concurring), and applied by a majority of the Court in County of Allegheny v. ACLU, 492 U.S. 573 (1989). Hanover Sch. Dist., 626 F.3d at 7 (internal quotation marks omitted). a. The Ordinance has the impermissible effect of endorsing, favoring, or promoting [certain] religion[s], id. at 10, because by its very mechanics, see subsection (b)(2), it favors the dominant religions. b. Subsection (b)(2) also has the effect of informing reasonabl[y] observ[ant], Allegheny, 492 U.S. at 620, members of the Karotine Church that they are outsiders, not full members of the political community, and [conveying] an accompanying message to adherents [of other faiths] that they are insiders, favored members of the political community. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, (2000) (quoting Lynch, 465 U.S. at 688). c. The sign requirement of Subsection (b)(1)(d) does not remedy the constitutional infirmity. 4. Therefore, Defendants are entitled to judgment as a matter of law. Fed. R. Civ. P. 56. B. Subsection (b)(3) of the DHDO violates the Establishment Clause. 44

45 5. Subsection (b)(3) is unconstitutional because public funds go directly from the government to a religious group for the express purpose of funding an overtly religious display. See Everson v. Board of Ed. of Ewing, 330 U.S. 1 (1947). In 2012, Dalton gave $50,000, to both the Jewish Hanukah Group, and the Putting Christ Back in Christmas Group for the express purpose of being used on a Holiday Display. Therefore, subsection (b)(3) violates the Establishment Clause. 6. Subsection (b)(3) is unconstitutional because government funds reach religious Holiday Groups based on the choice of another Holiday Group, not only as a result of the genuine and independent choices of private individuals. Zelman v. Simmons-Harris, 536 U.S. 639, 649 (2002). 7. In 2012, two-thirds of all funds dispersed under subsection (b)(3) went to religious Holiday Displays. This impermissibly makes it appear to the reasonable observer that Dalton is endorsing religion. See Lynch, 465 U.S. at All of the funds that were dispersed under subsection (b)(3) went to religious Holiday Groups that represented the dominant religions. Therefore, it impermissibly appears that Dalton is endorsing the dominant religions and disfavoring Karotine. See Santa Fe Indep. Sch. Dist., 530 U.S. at Members of the Karotine Holiday Display Group feel that they are outsiders, not full members of the political community, id., while members of the Jewish Hanukah Group, and the Putting Christ Back in Christmas Group are sent the message that they are insiders, favored members of the political community. Id. 10. Therefore, Defendants are entitled to judgment as a matter of law. Fed. R. Civ. P

46 II. The Dalton Holiday Display Ordinance violates the Freedom of Speech Clause. 11. The DHDO violates the Freedom of Speech Clause in two ways. a. First, subsection (b)(1)(a) singles out Holiday Displays, including the Karotine Holiday Group display, for disfavored treatment. Only Holiday Displays are prohibited from being erected in Dalton Road or Dalton Park during the Holiday Season. b. Second, subsection (b)(3) places a substantial burden on the Freedom of Speech of Holiday Groups and their members, including Plaintiffs, by penalizing and disincentivizing private expenditures on Holiday Displays. A. Subsection (b)(1)(a) of the DHDO violates the Freedom of Speech Clause. 12. Both Dalton Road and Dalton Park are traditional public fora. See United States v. Grace, 461 U.S. 171, 180 (1983). a. Dalton Road is a small enclave on the public street which has historically been used for public displays, see subsection (a)(7), and is, therefore, a traditional public forum. See Snyder v. Phelps, 131 S. Ct. 1207, 1218 (2011). b. Dalton Park is an area of the park that has historically been used for public displays, see subsection (a)(6), and is, therefore, a traditional public forum. See Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 466 (2009). 13. In a public forum, a class of speech may only be excluded if the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 800 (1985). 46

47 14. Holiday Displays including Karotine s Holiday Group Display have been excluded from Dalton Park and Dalton Road. [P]romot[ing] peace, tolerance, and unity, is not a compelling government interest, and the DHDO is certainly not narrowly tailored. Therefore, subsection (b)(1)(a) violates the Freedom of Speech Clause. 15. Subsection (b)(1)(a) does not avoid strict scrutiny as a valid reasonable time, place, or manner restriction, Snyder, 131 S. Ct. at 1218, because exclusion of all Holiday Displays is not content-neutral and because the time period to which the DHDO applies the Holiday Season is the most critical time for displaying messages regarding holidays. See Citizens United v. Fed. Election Comm n, 558 U.S. 310, 361 (2010) (declining to analyze [a]n outright ban on corporate political speech during the critical preelection period as a time, place, or manner restriction). Therefore, subsection (b)(1)(a) violates the Freedom of Speech Clause. 16. Even if Dalton Park and Dalton Road are limited public fora, the exclusion of all Holiday Displays is not reasonable, see Cornelius, 473 U.S. at 806 (1985), and restricting only one category of speech from a forum is unconstitutional viewpoint based discrimination. See Good News Club v. Milford Cent. Sch., 533 U.S. 98, 107 (2001). 17. Therefore, Defendants are entitled to judgment as a matter of law. Fed. R. Civ. P. 56. B. Subsection (b)(3) of the DHDO violates the Freedom of Speech Clause. 18. Subsection (b)(3) places a substantial burden on Plaintiffs Freedom of Speech because it forces Plaintiffs to choose between forgoing their First Amendment right to engage in unfettered speech and being subjected to a discriminatory fund matching regime. See Davis v. Fed. Election Comm n, 554 U.S. 724, 739 (2008). A restriction on 47

48 the amount of money spent on a communication necessarily reduces the quantity of expression. See Buckley v. Valeo, 424 U.S. 1, 19 (1976). 19. A similar matching funds provision was deemed to be a substantial burden on the Freedom of Speech in Arizona Free Enter. Club s Freedom Club PAC v. Bennett, 131 S. Ct (2011). As in Bennett, the penalty here is the automatic release of public money. See id. at KHDG s speech was substantially burdened by subsection (b)(3). a. In 2012, the Karotine Holiday Display Group spent $1,000,100 on its holiday display and was penalized by the matching funds provision. b. In 2013, as a direct result of the newly adopted ordinance, KHDG spent only $25,000 on its Holiday Display. The extreme decline was principally the result of Russ L. Bell reducing his 2012 contribution of $1,000,000 to a 2013 donation of $24,500. c. Mr. Bell drastically reduced his contribution because the penalty of subsection (b)(3)(b) awarded $50,000 each to the Turkey Thanksgiving Group, the Jewish Hanukah Group, and the Putting Christ Back in Christmas Group to use on their own Holiday Displays in the City Square, which effectively drowned out the speech of Mr. Bell. See Affidavits of Russ L. Bell, P. Joseph Stewart, William B. Moreland, and Howard B. Colvin, attached as Exhibits And, as in Bennett, the burden on the Freedom of Speech cannot be justified by any compelling government interest. Therefore, subsection (b)(3) violates the Freedom of Speech Clause. 48

49 22. Therefore, Plaintiffs are entitled to judgment as a matter of law. Fed. R. Civ. P. 56. Conclusion The DHDO violates the Constitution of the United States. As there is no dispute as to any issue of material fact, Plaintiffs are entitled to judgment as a matter of law, and this Court should grant summary judgment to the Plaintiffs. Dated this 17 of February, /s Pearson Hardman 49

50 Exhibit 1: Display Size Chart Group Name 2012 Contributors 2013 Contributors Base Display (sq ft) Extra Display (sq ft) Total Display (sq ft) Turkey Thanksgiving Group Jewish Hanukah Group Putting Christ Back in Christmas Group Karotine Holiday Display Group 7,523 7, ,613 6, ,910 2,

51 Exhibit 2: 2013 Karotine Holiday Display Group Display 51

52 Exhibit 3: 2012 Karotine Holiday Display Group Display 52

53 Exhibit 4: 2012 letter from Dalton Display Agency to Karotine Holiday Display Group October 31, 2012 Dear Karotine Holiday Display Group, Under The Dalton Holiday Display Ordinance, 21 Dalt. 14 (2012), your Holiday Display Group with 44 contributors is permitted to erect a Holiday Display in City Square that may be up to twenty-five-square-feet. Benjamin Linus Director, Dalton Display Agency Others@DaltonDisplayAgency.Dalton.Gov Dalton Display Agency Tel Fax DaltonDisplayAgency.com info@daltondisplayagency.dalton.gov 53

54 Exhibit 5: 2012 letter from Dalton Display Agency to Jewish Hanukah Group November 1, 2012 Dear Jewish Hanukah Group, Under The Dalton Holiday Display Ordinance, 21 Dalt. 14 (2012), your Holiday Display Group with 6,613 contributors is permitted to erect a Holiday Display in City Square that may be up to fifty-five-square-feet. Benjamin Linus Director, Dalton Display Agency Others@DaltonDisplayAgency.Dalton.Gov Dalton Display Agency Tel Fax DaltonDisplayAgency.com info@daltondisplayagency.dalton.gov 54

55 Exhibit 6: 2012 letter from Dalton Display Agency to Putting Christ Back in Christmas Group November 1, 2012 Dear Putting Christ Back in Christmas Group, Under The Dalton Holiday Display Ordinance, 21 Dalt. 14 (2012), your Holiday Display Group with 2,910 contributors is permitted to erect a Holiday Display in City Square that may be up to thirty-five-square-feet. Benjamin Linus Director, Dalton Display Agency Others@DaltonDisplayAgency.Dalton.Gov Dalton Display Agency Tel Fax DaltonDisplayAgency.com info@daltondisplayagency.dalton.gov 55

56 Exhibit 7: 2013 letter from Dalton Display Agency to Karotine Holiday Display Group November 5, 2013 Dear Karotine Holiday Display Group, Under The Dalton Holiday Display Ordinance, 21 Dalt. 14 (2012), your Holiday Display Group with 41 contributors is permitted to erect a Holiday Display in City Square that may be up to twenty-five-square-feet. Benjamin Linus Director, Dalton Display Agency Others@DaltonDisplayAgency.Dalton.Gov Dalton Display Agency Tel Fax DaltonDisplayAgency.com info@daltondisplayagency.dalton.gov 56

57 Exhibit 8: 2013 letter from Dalton Display Agency to Jewish Hanukah Group November 2, 2013 Dear Jewish Hanukah Group, Under The Dalton Holiday Display Ordinance, 21 Dalt. 14 (2012), your Holiday Display Group with 6,603 contributors is permitted to erect a Holiday Display in City Square that may be up to fifty-five-square-feet. Benjamin Linus Director, Dalton Display Agency Others@DaltonDisplayAgency.Dalton.Gov Dalton Display Agency Tel Fax DaltonDisplayAgency.com info@daltondisplayagency.dalton.gov 57

58 Exhibit 9: 2013 letter from Dalton Display Agency to Putting Christ Back in Christmas Group November 1, 2013 Dear Putting Christ Back in Christmas Group, Under The Dalton Holiday Display Ordinance, 21 Dalt. 14 (2012), your Holiday Display Group with 2,996 contributors is permitted to erect a Holiday Display in City Square that may be up to thirty-five-square-feet. Benjamin Linus Director, Dalton Display Agency Others@DaltonDisplayAgency.Dalton.Gov Dalton Display Agency Tel Fax DaltonDisplayAgency.com info@daltondisplayagency.dalton.gov 58

59 Exhibit 10: 2012 Jewish Hanukah Group Display 59

60 Exhibit 11: Hebrew blessing affixed to 2012 Jewish Hanukah Group Display 60

61 Exhibit 12: 2012 Putting Christ Back in Christmas Display Group Display 61