Cincinnati Enquirer Politics Extra Blog: “The Ohio Controlling Board agreed without comment Monday to pay court-ordered attorneys’ fees and costs totaling $134,418 in a federal lawsuit that struck down a rule preventing former Ohio House and Senate members and staff from lobbying for one year after leaving their state government jobs.  The suit against legislative leaders was won by former state Rep. Tom Brinkman Jr., a Republican from Mount Lookout, and the Coalition Opposed to Additional Spending and Taxes. The attorneys representing Brinkman and COAST were Christopher P. Finney of Anderson Township and Curt C. Hartman of Amelia.”  More…

Additional coverage from today’s Cincinnati Enquirer is available here.

And click here for our previous coverage of this case, which paved the way for Ohio legislators who leave office to immediately begin exercising their core political speech rights, rather than waiting 12 months to do so.

DISCLOSURE: The author of this post served as Plaintiffs’ co-counsel in this case.

An interesting First Amendment situation is developing in the small city of Southaven, Mississippi.  Seventy year old Carroll Robinson, a paralegal student who identifies himself as agnostic, has raised an Establishment Clause argument in connection with disorderly conduct charges brought against him by the city.  Why?  Apparently, the city, in an attempt to save money during the course of renovating a former library into its municipal courthouse, salvaged pews from a church building it had purchased to turn into a performing arts center.  The pews were used for seating in two of the municipal courtrooms, with 24 pews placed in one, and seven in the other.

Mr. Robinson’s disorderly conduct case is being adjudicated in one of these courtrooms.  And he has filed a motion seeking to have the pews removed, largely because the pews have crosses engraved on each side.  Mr. Robinson claims that the pews are a “clear violation” of the First Amendment, in that they represent an endorsement of a religion in which he does not believe.  “I’m afraid I couldn’t get a fair trial because I am not Christian, but am agnostic,” he claims.

The city appears ready to stand its ground, as Mayor Greg Davis is on record as saying that he will not remove the seats.  “I don’t think we’re sitting up here saying you have to be Baptist,” says Mayor Davis, “or you have to be Methodist.  Or Episcopalian.  Or Catholic.  Or Jewish.  It’s not even discussed in the courtroom.”

From both a factual and legal standpoint, this situation is interesting, and I’m not aware of any cases dealing with salvaged church pews relocated to government buildings that have been the subject of Establishment Clause challenges.

I do think Mr. Robinson faces an uphill battle, though, in arguing that the city’s pews run afoul of the Establishment Clause–regardless of what legal test is applied, i.e., the prevailing test articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971), or the alternative coercion test.

Under the Lemon test, a court examines whether the challenged conduct has a secular purpose, whether its primary effect advances or inhibits religion, and whether the conduct results in excessive government entanglement with religion.

Under the facts as reported, it would seem that the city had a clear secular purpose when it chose to utilize salvaged church pews in its courtrooms.  The driving force behind the decision appears to have been to cut costs during an extensive seven year renovation project, not to promote a religious message.

Moreover, the decision to utilize the pews likely does not implicate the second prong of Lemon, which analyzes the primary effect of government action.  The primary effect of using the salvaged pews does not appear to be advancement of religion in any meaningful way.  Rather, the effect seems to be basic, no frills courtroom seating at a reduced cost to the city (which I suspect a court would view as a reasonable move by a municipality in these difficult economic times).

The final inquiry under Lemon asks whether the conduct results in excessive entanglement between religion and government.  Entanglement must be “comprehensive, discriminating, and continuing” in nature to rise to the level of a constitutional violation.  Lynch v. Donnelly, 465 U.S. 668, 684 (1971).  This is a difficult showing to make for any litigant, and I suspect that Mr. Robinson will have a hard time convincing the court that excessive entanglement exists under these facts.

The above factors that would seem to put to rest any Establishment Clause concerns under Lemon also appear to alleviate any concerns under the alternative “coercion” test.  It’s hard to imagine that these recycled pews, standing alone, would coerce others.  The pews simply provide basic seating to litigants, their lawyers, and the general public, and their presence makes fiscal and administrative sense.  A court would have to go out of its way to conclude that the pews “proselytize” or promote a religious message, such that coercion is present.

Mr. Robinson has reportedly contacted the ACLU about the matter, so we’ll be sure to post updates on this interesting case as it develops.

• “Summum Case Back in District Court on Establishment Clause Issue”  [Religion Clause Blog]
• “Dean Chemerinsky Says Yelling Hecklers Not Protected by First Amendment”  [ABA Journal]
• “Court Halts Chicago From Moving Graves Near O’Hare”  [Chicago Tribune]
• “Judge Judy on Cameras in Federal Courts”  [The Blog of Legal Times]
• “It could be a good year for freedom of speech at the U.S. Supreme Court.”  [How Appealing]
• Next Major First Amendment Test: Humanitarian Law Project Cases”  [SCOTUSblog]

A federal judge ruled yesterday that an Ohio law limiting lobbying activities by former legislators violates the First Amendment.  The ruling paves the way for Ohio legislators who leave office to immediately begin exercising their core political speech rights, rather than waiting 12 months to do so.

U.S. District Court Judge Susan Dlott ruled that the law (O.R.C. 102.03(A)(4)) severely burdened former legislator Thomas Brinkman Jr.’s right to speak out and lobby for various causes or organizations, as well as the ability of the co-plaintiff, Coalition Opposed to Additional Spending and Taxes (COAST), to use Mr. Brinkman as its advocate before the Ohio General Assembly.  Judge Dlott wrote that the defendant State officials failed to “establish that the danger of quid pro quo corruption or the appearance of corruption is significantly lessened if the former legislator is permitted to lobby the General Assembly one year and one day after leaving the legislature.”

The Court struck down the Ohio law both facially and as-applied to Mr. Brinkman and COAST.  In doing so, the Court highlighted many of the constitutional infirmities present in the statute.

For one, the Court held that the law was not narrow enough to survive the heightened judicial scrutiny that often applies in the First Amendment context.  For example, the law prohibited lobbying on any matter, rather than simply restricting advocacy on matters about which the former legislator had personally participated when he was in office.

In addition, the Court deemed the law overinclusive, noting that it prohibited both volunteer lobbying (which Mr. Brinkman sought to do) and compensated lobbying, despite the fact that volunteer lobbying fails to implicate the type of corruption concerns that the State purportedly sought to address through the law.  The Court took note of other states–such as Alabama and Hawaii–that employ more narrowly tailored “revolving door” statutes that restrict only compensated lobbying activities.

The Court concluded that the law was underinclusive too.  That is, it failed to “restrict other behaviors or activities of former members of the General Assembly that might give rise to actual or perceived corruption, such as the acceptance of gifts or offers for employment unrelated to lobbying.”

A copy of the Order Granting Plaintiffs’ Motion for Summary Judgment and Issuance of a Permanent Injunction is available here.

UPDATE: COAST, one of the plaintiffs, has blogged about the case here.

DISCLAIMER: The author of this post served as Plaintiffs’ co-counsel in this case.     

• “Do Lawyers Have First Amendment Right to Interview Jurors?  10th Circuit Says Maybe” [ABA Journal]
• Lawsuit challenges library’s meeting room policy [Religion Clause]
• “Reagan Era Influenced Supreme Court Vote in Citizens United Campaign Finance Case” [ABA Journal]
• “Right to Free Speech Collides With Fight Against Terror” [New York Times]
• “Olympic Athletes Can Tweet to Their Hearts’ Content” [Citizen Media Law Project] 

• Justice Thomas defends the Court’s recent campaign finance decision–Citizens United.  [New York Times]
• U.S. Court of Appeals for the Second Circuit: New York City did not violate the First Amendment by limiting the number of billboards along its roadways and parks.  [AP]
• Establishment Clause challenge to AIG bailout?  Government left waiting after its interlocutory appeal request denied.  [Religion Clause Blog]
• “Idea of Banning Books Hangs Over Campaign Finance Debate.”  [Blog of Legal Times]
• “Church Fights for Right to Ring Bells.”  [UPI]