Back to the Nov-Dec 2019 issue

Court Allows County-Owned WWI Memorial to Remain Standing


Establishment Clause
In 1925, the American Legion and a group of mothers erected a memorial to honor 49 residents of Prince George’s County, Maryland, who died in World War I. The memorial bears the shape of a cross and is 40 feet tall. A large plaque is attached to it, listing the names of the 49 residents. The memorial is in Veterans Memorial Park, which also contains several other war monuments.

In 1961, the Maryland National Capital Park and Planning Commission acquired the memorial and the roadway median on which it sits due to traffic safety concerns. Since then, the commission has spent $117,000 to maintain and repair the memorial.

In 2014, the American Humanist Association and three individuals sued the commission, claiming that, because of its cross shape, the memorial is an unconstitutional government endorsement of Christianity in violation of the U.S. Constitution’s Establishment Clause. The 4th U.S. Circuit Court of Appeals agreed, finding that the cross violated the Establishment Clause under the test established in Lemon v. Kurtzman, because its primary purpose was endorsing Christianity and because it represented excessive entanglement between the government and religion.

The U.S. Supreme Court reversed the Court of Appeals’ decision, and refused to apply the Lemon v. Kurtzman test, explaining that “four considerations show that retaining established religiously expressive monuments, symbols, and practice is quite different from erecting or adopting new ones” and noting that “the passage of time gives rise to a strong presumption of constitutionality.” The four considerations are: (1) where monuments were established a long time ago, it is especially difficult to identify their original purpose; (2) the purpose associated with an older monument can have multiple meanings; (3) the meaning behind these monuments may change over time and something that may have had an originally religious meaning can now have a secular (nonreligious) or historical one; and (4) as these monuments gain historical and secular significance, removing them may not appear religiously neutral. American Legion v. American Humanist Association, 139 S. Ct. 2067 (2019).


Takings claim
The Township of Scott’s cemetery ordinance allows the public to access any private land containing a burial ground. The township decided the ordinance applies to Rose Mary Knick’s 90 acres of farmland, where officials claimed graves are located. Knick sued the township in federal court, claiming it had violated the Takings Clause of the Fifth Amendment to the U.S. Constitution, which prohibits the government from taking private property “for public use, without just compensation.”

The township made a motion to dismiss the lawsuit, claiming that Knick was required to first exhaust her remedies in state court under Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, a 1985 U.S. Supreme Court decision, which ruled that a takings claim is not “ripe” for review in federal court until there has been an exhaustion of remedies available in state court. Such a requirement is different from other constitutional claims, where no exhaustion of state remedies is required before a person can bring a lawsuit in federal court.

The federal district court dismissed Knick’s appeal, and the 3rd U.S. Circuit Court of Appeals affirmed the district court’s decision. The U.S. Supreme Court reversed the Court of Appeals’ decision and overruled its earlier decision in Williamson County, concluding that “the state litigation requirement imposes an unjustifiable burden on takings plaintiffs” and “conflicts with the rest of our takings jurisprudence.” Knick v. Township of Scott, Pennsylvania, 139 S. Ct. 2162 (2019). Note: This decision will likely result in plaintiffs filing more takings lawsuits in federal courts.


First Amendment
The Manhattan Community Access Corporation, known as MNN, operates the public access TV channels on the cable system in Manhattan, New York. MNN refused to put a video by DeeDee Halleck, a producer, and Jesus Melendez, a poet and playwright, on the air again after its initial broadcast because MNN concluded it contained threatening language from Melendez. MNN barred Halleck from submitting content to MNN for a year and banned Melendez for life.

Halleck and Melendez sued, claiming MNN’s actions violated their First Amendment free-speech rights. The First Amendment bars the government from restricting the freedom of speech, but it generally does not apply to “private actors.” MNN moved to dismiss the lawsuit, claiming it is not subject to the First Amendment because it is a private actor.

The 2nd U.S. Circuit Court of Appeals allowed the lawsuit to go forward, ruling that MNN is a state actor because the local government chose MNN to operate public access channels. The U.S. Supreme Court reversed the Court of Appeals’ decision, concluding that “MNN, as a private actor, is not subject to First Amendment constraints on how it exercises editorial discretion over the speech and speakers on its public access channels.” The Supreme Court reasoned that a private entity can be a state actor only when it is doing something that the government alone has traditionally done. The Supreme Court concluded that the operation of public access channels is not a traditional governmental function because both public and private entities have historically operated these channels. Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921 (2019).


Retaliatory arrest
Two Alaska state troopers, Luis Nieves and Bryce Weight, arrested Russell Bartlett, an allegedly intoxicated and belligerent participant at an extreme sports festival, charging him with disorderly conduct and resisting arrest. Bartlett brought a lawsuit for violation of his First Amendment free-speech rights, claiming that he was arrested in retaliation for his efforts to challenge the officers’ attempts to question a teen and for an earlier encounter in which Bartlett refused to speak with Nieves. Bartlett alleged that, when arresting him, Nieves said, “{B}et you wish you would have talked to me now.”

The 9th U.S. Circuit Court of Appeals allowed the lawsuit to go forward, concluding that the existence of probable cause (reasonable grounds) for an arrest does not operate as a bar to a retaliatory arrest claim. The U.S. Supreme Court reversed the Court of Appeals’ decision, ruling that Bartlett’s claims could not survive summary judgment (court-entered judgment without a full trial) because probable cause for the arrest existed and because the record lacked any evidence of retaliation by Weight, who was not involved in the earlier encounter between Bartlett and Nieves.

The Supreme Court noted that a plaintiff generally must show the absence of probable cause to arrest as an element of a retaliatory arrest claim. It further noted that the presence of probable cause will defeat most such claims, unless a plaintiff presents “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Nieves v. Bartlett, 139 S. Ct. 1715 (2019).


Minnesota Whistleblower Act
Steven Moore, a sergeant with the New Brighton Police Department, sued under the Minnesota Whistleblower Act, claiming that the city had retaliated against him for filing a union grievance regarding its failure to pay him overtime for attending training, as required by the collective bargaining agreement.

Shortly after Moore filed his grievance, the city started investigations into two misconduct allegations against him. The city placed Moore on paid administrative leave and ordered him to remain at home from 8 a.m. to 4 p.m., Monday through Friday. Moore’s administrative leave lasted for nine months, which was several months longer than the city took to complete the investigations and to issue a five-day suspension for one allegation and no discipline for the other. Moore alleged that the city’s actions in beginning the investigations, placing him on administrative leave, issuing a poor performance evaluation and coaching directive after the leave, and reassigning him to a different position were designed to penalize him for filing his grievance.

The district court ruled in the city’s favor in part, holding that most of the conduct did not constitute adverse employment action under the Whistleblower Act and that Moore had failed to identify evidence showing that the city’s reason for investigating him and placing him on leave was a pretext (not the real reason). The Minnesota Court of Appeals reversed the district court’s decision in part, holding that administrative investigatory leaves are not categorically excluded from constituting adverse employment actions under the Whistleblower Act. The Court of Appeals also concluded that a fact dispute existed regarding whether the city’s actions “penalized” Moore and whether the city’s reason for its actions is pretextual. Moore v. City of New Brighton, 932 N.W.2d 317 (Minn. Ct. App. 2019). Note: The League of Minnesota Cities Insurance Trust represented the city. The city has filed a petition for review with the Minnesota Supreme Court.

Written by Susan Naughton, research attorney with the League of Minnesota Cities. Contact: or (651) 281-1232.