Judge Won't Dismiss Suit Over Prayer - The Missourian: County

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Judge Won't Dismiss Suit Over Prayer

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Posted: Thursday, June 13, 2013 9:00 am

A federal judge has denied motions to dismiss a lawsuit that challenges the legality of prayers at Franklin County Commission meetings.

Presiding County Commissioner John Griesheimer and Franklin County are being sued by an anonymous plaintiff, who is represented by the American Civil Liberties Union.

The lawsuit alleges that Griesheimer led prayers mentioning Jesus at county commission meetings starting in 2011.

ACLU Pleased

Anthony Rothert, the ACLU’s attorney in the case, said he is pleased with U.S. District Judge Stephen Limbaugh Jr.’s ruling on the motions.

“He refused to dismiss the case and found that our client has standing to pursue it,” Rothert said.

Moreover, the judge rejected legal arguments made by Franklin County in the case, Rothert said.

County Counselor Mark Vincent said these were only interim motions and that he does not think it’s appropriate to talk about the case until it’s over with.

The prayers violated the First and 14th amendments to the U.S. Constitution and affiliated “Franklin County with one specific faith or belief,” the lawsuit charges.

Griesheimer “instructed attendees to bow their heads,” and this “coerced participation in sectarian prayer,” the suit states.

Legislative Immunity

The county sought to have the lawsuit dismissed on the grounds of “legislative immunity,” but Judge Limbaugh denied this motion.

The county’s motion stated that Griesheimer had legislative immunity under the speech or debate clause of the U.S. Constitution.

Under legislative immunity, “a local legislator is entitled to absolute legislative immunity for acts undertaken within the sphere of legitimate legislative activity.”

The county argued that the prayers were not outside the legislative forum because they were uttered during the meeting.

But Judge Limbaugh ruled that the content of the prayers, such as asking for protection of the armed services, was not “functionally legislative.” The content of the prayers did not “pertain to deliberating or passing any law.”

Therefore, legislative immunity does not apply in this case, the judge ruled.

Official Capacity

The county also asked that the claims against Griesheimer acting in his official capacity as a county commissioner be dismissed.

Griesheimer said he was only acting in his individual capacity, not following a Franklin County policy or custom.

The commission’s policy was to have a moment of silence, not prayer, the county’s motion states.

But the plaintiff, who is known only as Jane Doe, argued that the prayers turned into a county commission custom.

Limbaugh denied the county’s motion to dismiss the official capacity claims, saying there are at least still questions about the matter.

Lack of Standing

The county also sought to have the lawsuit dismissed for lack of standing.

In the motion to dismiss, the county argued that the plaintiff’s alleged injuries were “insufficient.”

The plaintiff alleged that she was an “offended observer” and experienced “psychological unease” by hearing the prayers at the meetings.

The judge’s ruling states that a plaintiff’s injury must be “palpable” and not abstract or hypothetical.

The judge ruled that the plaintiff has standing to sue in this matter.

Adjudication Delayed

The adjudication of this case has been delayed until the U.S. Supreme Court decides another case involving prayers at public meetings.

In that case, Town of Greece v. Galloway, the Supreme Court must decide whether certain prayers violate the First Amendment’s Establishment Clause. That clause states, “Congress shall make no law respecting an establishment of religion...”

Franklin County and the ACLU agreed that the resolution of the Franklin County prayer case can be delayed until the Supreme Court’s decision, Rothert said. That case will provide guidance for the Franklin County case, he added.

Rothert said he thinks the Supreme Court will hear Town of Greece v. Galloway in November, but it could be June of 2014 before it is decided.

Therefore, it could be more than a year until the Franklin County case is resolved.

The Supreme Court case deals with the town board in Greece, N.Y., starting meetings with prayers. Two town residents sued, arguing the prayers illegally affiliated the town with Christianity.

But town officials said they never regulated the content of prayers and opened the prayers up to all faiths. Still, most of the prayers given at the meetings were from Christian clergy members.

Last June, the Franklin County Commission adopted a new invocation policy for meetings.

The policy states, “the commission wishes to express its respect for the diversity of religious practice and belief in the county.”

Under the policy, volunteers can sign up to give the invocation by contacting the secretary to the commission, and no questions will be asked about religious preference. Some Franklin County Commission meetings begin with a prayer given by a volunteer.

If the new policy results in only Christian prayers, it could be a problem, Rothert said. But he said the ACLU is not challenging the new policy at this point. Franklin County’s policy is very similar to the Town of Greece v. Galloway case, Rothert said.

Originally, the Franklin County prayer case was set for an Aug. 19 bench trial in U.S. District Court, St. Louis.

Deposition/Produce Tapes

Limbaugh’s ruling also states that the plaintiff must produce audio recordings of the prayers to Franklin County.

Likewise, the plaintiff, Jane Doe, must also be made available to the county for a deposition.

The deposition and production of the audio recordings must be arranged and completed by July 8, the ruling states.

The audio recordings of the prayers were mailed Monday, Rothert said.

He added that he also does not have a problem with the county taking a deposition of his client.

Rothert said he still does not think Jane Doe’s identity will be revealed because there is a court order allowing her to continue in the case under a pseudonym.

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