Society of Separationists v. Pleasant Grove City

F I L E D
United States Court of Appeals
Tenth Circuit

August 1, 2005
PUBLISH

UNITED STATES COURT OF APPEALS PATRICK FISHER
Clerk

TENTH CIRCUIT

SOCIETY OF SEPARATIONISTS, a
non-profit Maryland corporation; G.
GASTER; R. KELSEY,

Plaintiffs - Appellants,

v.

PLEASANT GROVE CITY, a
municipal corporation; JIM
DANKLEF, Mayor, in his official
capacity; MICHAEL DANIELS, City
Council Member, in his official
capacity; JEFF WILSON, City Council
Member, in his official capacity;
CINDY BOYD, City Council Member,
No. 04-4136
in her official capacity; DAROLD
MCDADE, City Council Member, in
his official capacity; MARK
ATWOOD, City Council Member, in
his official capacity; FRANK MILLS,
City Council Member, in his official
capacity,

Defendants - Appellees.

-------------------------

AMERICANS UNITED FOR
SEPARATION OF CHURCH AND
STATE,

Amicus Curiae.
 Appeal from the United States District Court
for the District of Utah
(D.C. No. 03-CV-839-BSJ)

Brian M. Barnard (James L. Harris with him on the briefs), Utah Legal Clinic,
Salt Lake City, Utah for the Plaintiffs-Appellants.

Francis J. Manion, American Center for Law & Justice (Edward L. White III,
Thomas More Law Center, Ann Arbor, Michigan with him on the brief), New
Hope, Kentucky for the Defendants-Appellees.

Ayesha Khan and Richard B. Katskee, Washington, D.C., filed an amicus curiae
brief for Americans United for Separation of Church and State.

Before TACHA, Chief Judge, LUCERO, and MCCONNELL, Circuit Judges.

LUCERO, Circuit Judge.

We informally abated this case – involving the continued placement of a

Ten Commandments monument on a public park in Pleasant Grove, Utah – while

awaiting the Supreme Court’s decisions in Van Orden v. Perry, 125 S.Ct. 2854

(2005) and McCreary County v. American Civil Liberties Union of Ky., 125 S.Ct.

2722 (2005). The Court has now decided these cases, and we reconsider the

posture of the present case under the fact-intensive analysis prescribed by the

Court’s recent decisions.

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 In the proceedings below, plaintiffs and defendants filed cross-motions for

Judgment on the Pleadings under Fed. R. Civ. P. 12(c). 1 The trial court

determined that the plaintiffs’ pleadings failed to state a claim upon which relief

could be granted, and granted defendants’ motion for judgment on the pleadings.

“A decision by the district court granting a defense motion for judgment on the

pleadings is reviewed de novo, using the same standard of review applicable to a

Rule 12(b)(6) motion.” Aspenwood Inv. Co. v. Martinez, 355 F.3d 1256, 1259

(10th Cir. 2004). “As with a ruling under Fed. R. Civ. P. 12(b)(6), we uphold a

dismissal only when it appears that the plaintiff can prove no set of facts in

support of the claims that would entitle the plaintiff to relief.” Deck v.

Engineered Laminates, 349 F.3d 1253, 1256 (10th Cir. 2003) (quotations

omitted). Given the myriad factual considerations dictated by the Court in Van

Orden and McCreary, and the undeveloped record before us, we are unable to

determine whether such facts may be developed by the parties as may allow them

to proceed. We therefore REVERSE the lower court’s grant of judgment on the

pleadings and REMAND for further proceedings.

1
Society of Separationists filed for judgment on the pleadings, despite a
belief that the district court would rule against them, based on a desire to expedite
appellate review. They hoped to persuade us to overturn our decision in
Anderson v. Salt Lake City, 475 F.2d 29 (10th Cir. 1973) (upholding a municipal
Ten Commandments display). Anderson is now superceded by Van Orden and
McCreary.

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 The district court’s grant of defendants’ Motion to Substitute Parties is

AFFIRMED. 2 We reserved ruling on Society of Separationists’ Motions to

Strike Pleasant Grove’s March 14, 2005 and July 15, 2005 letters to this court.

2
Plaintiffs also claim that the district court erred in substituting two
defendants with their successors in office pursuant to Fed. R. Civ. P. 25(d).
Subsequent to the initial filing of the case at bar, City Council elections were held
and Michael Daniels and Cindy Boyd replaced Carol Harmer and G. Keith Corry.
Fed. R. Civ. P. 25(d)(1) provides that “[w]hen a public officer is a party to an
action in an official capacity and during its pendency . . . ceases to hold office . . .
the officer’s successor is automatically substituted as a party.” Plaintiffs argue
that, even though it did not specify whether the suits against the City Council
members were brought against them in their official or personal capacity, the
district court erred in granting Pleasant Grove’s 25(d)(1) motion because it should
have determined that the suits were brought against the defendants in both their
personal and official capacities. Plaintiffs maintain that the correct result would
have been to substitute the defendants in their official capacities but retain the old
defendants, Harmer and Corry, in their personal capacities. We disagree.
The Federal Rules of Civil Procedure Advisory Committee in its 1961 Note
to Rule 25(d) wrote:
The expression “in his official capacity” is to be interpreted in its context
as part of a simple procedural rule for substitution; care should be taken not
to distort its meaning by mistaken analogies to the doctrine of sovereign
immunity from suit or the Eleventh Amendment. . . . In general it will
apply whenever effective relief would call for corrective behavior by the
one then having official status and power, rather than one who has lost that
status and power through ceasing to hold office.
At no time did plaintiffs seek to impose liability on Daniels and Boyd
independent of the town. This indicates that plaintiffs treated this lawsuit from
its inception as a suit against the city, premised upon the actions of its agents.
Furthermore, it is clear that effective, non-retroactive relief would “call for
corrective behavior by the one [now] having official status and power.” We
consider the present suit as one against the city council members in their official
capacities for purposes of Rule 25(d). Thus, according the automatic substitution
was proper. Although the district court did not fully explain its reasoning, this
court can affirm for any reason that is supported by the record and the law. See,
e.g., United States v. Corral, 970 F.2d 719, 726 n.5 (10th Cir. 1992).

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Because the letters, supporting plaintiffs’ contentions from oral argument, do not

comply with the limitations set forth in Fed. R. App. P. 28(j), 3 we GRANT the

motions.

3
Rule 28(j) provides only for citation of supplemental authority when
pertinent and significant authorities come to the attention of a party after the
party’s brief has been filed, or after oral argument but before decision.

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