Saturday, August 25, 2007

Tie Vote Means No En Banc Review of "7 Aphorisms" Cases In 10th Circuit

The U.S. 10th Circuit Court of Appeals split 6-6 on a motion to review en banc two decisions by a 3-judge panel handed down last April. The decisions ruled in favor of members of the Summum faith who sought to put up displays of their Seven Aphorisms in parks where Ten Commandment displays already exist. The en banc ruling is Summum v. Pleasant Grove City, (10th Cir., Aug. 24, 2007). Plaintiffs had argued that parks in Pleasant Grove City and Duchesne City, Utah were public forums. The 3-judge panel agreed as to Pleasant Grove, and sent the Duchesne case back for further fact finding. The en banc split results in no review of those decisions.

Two interesting dissents to the denial of an en banc rehearing were filed along with the ruling. Judge Lucero argued that parks are public forums for temporary events such as protests and concerts, but not for permanent monuments. Judge McConnell, joined by Judge Gorsuch, argued that managers of city parks should be able to make reasonable content-based judgments on the kinds of monuments that will be in the parks. Accepting the donation of a war memorial for the park from the VFW should not open the park to "an influx of clutter", they wrote. Yesterday’s Salt Lake Tribune reported on the en banc determination.