The U.S. Court of Appeals for the Eleventh Circuit has remanded a case to the district court involving a 5-foot-tall monument of the Ten Commandments which sits beside an entrance to the Dixie County Courthouse in Florida.  The plaintiff, a North Carolina resident who was considering whether to purchase property in the County, made his way to the Courthouse and saw the monument.  As the Eleventh Circuit put it, “the experience of seeing the statue was a negative one” (though after the shock had passed, he was able to recover and proceed with his business).

The plaintiff never did purchase any land in the County, but the ACLU used him in an attempt to get itself standing to sue the County for violating the Establishment Clause.  Standing demands a concrete injury.  When deposed, the plaintiff indicated that the reason he did not purchase property in the County was due to “the display of the monument” and because “I found other things I was offended by.”  A later affidavit by the plaintiff indicates instead that the monument was the but-for cause of his decision not to purchase property.  The district court denied a motion for summary judgment by the County on the issue of standing, and granted the ACLU’s motion for summary judgment on the merits.

For the Eleventh Circuit, the issue seems to be whether the plaintiff had standing to sue, and the remand has to do with an evidentiary question about the reasons for the plaintiff’s decision not to purchase property in the County.  The initial deposition and later affidavit seem to be in some tension (the Court called the affidavit “suspect, given that it seems designed to strengthen [plaintiff’s] standing claim”).  By granting the ACLU’s summary judgment motion, the district court improperly resolved a disputed factual question.

Judge Edmonson filed a separate opinion concurring in part and dissenting in part, arguing that the case should be dismissed now because plaintiff has failed to meet the standing requirement.  He would have relied on the “clear and unambiguous answers” in the deposition, not the later prepared affidavit, to dismiss the case.  Judge Edmonson notes that the “other things” that offended the plaintiff (as stated in the deposition) included: (1) a cartoon in the County assessor’s office depicting an American soldier telling a French official “Well, you didn’t make me show a Visa when I landed in Normandy”; (2) a writing in the assessor’s office that said something like “the only two who gave blood for you or gave their souls for you were Jesus and the veterans”; and (3) a website that included the words “Patriot Properties” and “Dixie” in its web address, which an employee in the assessor’s office recommended that plaintiff visit if he had more questions.  Plaintiff also stated that he was discomfited by the fact that the locals were “a bit cold.”

The case is ACLU of Florida, Inc. v. Dixie County, Florida (August 15, 2012).

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