American Humanist Association et al v. Maryland-National Capital Park and Planning Commission

Filing 46

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 9/18/14. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
AMERICAN HUMANIST ASSOCIATION,
et al.
v.

:
:

Civil Action No. DKC 14-0550

:
MARYLAND-NATIONAL CAPITAL PARK
AND PLANNING COMMISSION

:
:

MEMORANDUM OPINION
Presently pending and ready for resolution in this First
Amendment case are a motion to appear jointly as amicus curiae
and for leave to file an amicus curiae memorandum in support of
Defendant submitted by eleven residents of Maryland (ECF No.
11), and a motion to intervene filed by the American Legion, the
American Legion Department of Maryland, and the American Legion
Colmar Manor Post 131 (ECF No. 14).
briefed,

and

necessary.

the

court

now

rules,

Local Rule 105.6.

The issues have been fully
no

hearing

being

deemed

For the following reasons, the

motion to appear jointly as amicus curiae and for leave to file
an amicus curiae memorandum will be granted in part.

The motion

to intervene will be granted.
I.

Background
On

(“AHA”),

February
Steven

25,

2014,

Lowe,

the

Fred

American
Edwords,

Humanist
and

Association

Bishop

McNeill

(collectively,

“Plaintiffs”)

Maryland-National
Commission”

Park

Planning

Commission

the
(“the

(ECF No.

progressive

values

freethinkers.”
legal

is

center

a

nonprofit

and

equality

(Id. ¶ 5).
is

a

against

injunctive relief, and nominal compensatory damages.
AHA

seeking

complaint

judgment,

The

“Defendant”)

and

a

declaratory

1).

or

Capital

filed

organization
for

that

humanists,

“advocates

atheists,

and

According to the complaint, “AHA’s

dedicated

to

advancing

and

preserving

the

constitutional mandate of separation of church and state, the
constitutional protections found in the Bill of Rights, and, in
particular,

the

Constitution.”

First

(Id.).

Amendment

to

the

United

States

Plaintiffs Steven Lowe and Fred Edwords

are members of AHA and residents of Prince George’s County,
Maryland.

Bishop McNeil does not purport to be an AHA member,

but has been a resident of Beltsville, Maryland for at least
eight months.

(Id. ¶ 10).

Plaintiffs allege that Defendant violated the Establishment
Clause of the First Amendment of the United States Constitution
by owning, maintaining, and prominently displaying the Memorial
Peace Cross in Bladensburg, Maryland (“the Peace Cross”).

The

Peace Cross is a war memorial dedicated to World War I veterans.
(Id. ¶ 26).

The complaint asserts that the construction of the

Peace Cross traces back to 1918, and that Defendant now owns the
Peace Cross and the property on which it stands.
2

(Id. ¶ 44).

According to the complaint, Plaintiff Lowe has driven by the
Peace Cross since 1982 and “believes that the Bladensburg Cross
associates a Christian religious symbol with the State and gives
the

impression

that

the

State

supports

and

approves

of

Christianity, as opposed to other religions, and that the state
may

even

prefer

religions.”
similar

Christians

(Id. ¶ 7).

sentiments

religious

symbol

and

Christianity

over

other

Plaintiffs Edwords and McNeill share

about

the

displayed

Peace

on

Cross

public

as

an

property.

allegedly
Plaintiffs

assert that Defendant violated the First Amendment because the
“ownership, maintenance and prominent display on public property
of

the

Bladensburg

Cross

amounts

to

the

endorsement

and

advancement of religion (and, specifically, an endorsement of
and affiliation with Christianity).”

(Id. ¶ 55).

Defendant answered the complaint.

(ECF No. 12).

On April

25, 2014, eleven prospective amici curiae moved for leave to
appear jointly as amicus curiae in support of Defendant and to
file an amicus curiae memorandum.

(ECF No. 11).

opposed

and

the

motion

(ECF

No.

39),

curiae replied (ECF No. 40).
Legion,

The

American

Legion

the

Plaintiffs

prospective

amici

On May 1, 2014, The American
Department

of

Maryland,

and

The

American Legion Colmar Manor Post 131 moved to intervene as
defendants in this case.

(ECF No. 14).

3

Plaintiffs also opposed

this motion (ECF No. 34), and prospective intervenors replied
(ECF No. 45).
II.

Analysis
A.

Amicus Curiae Motion

The

following

eleven

individuals

seek

to

participate

as

amici curiae in this case: Richard Douglas; Kevin Young; Lori
Young;

Harry

Pitt;

Cheryl

Pitt;

John

Dollymore;

Christy

Dollymore; Ellen J. McNulty; Lynn Cook; Lawrence Wenzel; and
Claude E. Petrone (collectively, “the Prospective Amici”).1

The

Prospective Amici contend that they are “citizens and residents
of Prince George’s County unified by dismay and urgent concern
over the Plaintiffs’ desire to dismantle the Bladensburg World
War One Peace Cross.”

(ECF No. 11, at 1).

Amici

Maryland

explain

that

as

residents,

The Prospective

they

are

directly

affected by the declaratory and injunctive relief sought here.
They further submit that they “wish to be heard by the Court in
order to invite the Court’s attention to important facts which
the Plaintiffs have mischaracterized or even omitted from their
[c]omplaint.”

(Id. at 2).

The Prospective Amici include a

proposed brief in support of Defendant’s position in which they
provide additional history regarding the establishment of the
Bladensburg

Cross

and

cite

to

jurisprudence

1

from

the

United

The Prospective Amici are represented by Richard Douglas,
one of the proposed amicus curiae.
4

States Supreme Court, which they believe sheds light on the
proper analysis of First Amendment claims akin to Plaintiffs’
claim.

(See ECF No. 11-2).

They indicate that they do not

seek to participate in discovery or oral argument in this case;
they seek only to file memoranda in support of Defendant.

(ECF

No. 11, at 1).
There is no Federal Rule of Civil Procedure that applies to
motions

for

district

leave

court.

to

appear

District

as

amicus

courts

curiae

therefore

in

have

a

federal

discretion

whether to grant or deny such leave and often look for guidance
to Rule 29 of the Federal Rules of Appellate Procedure, which
applies to amicus briefs at the federal appeals level.

See,

e.g., Jin v. Ministry of State Sec., 557 F.Supp.2d 131, 136
(D.D.C. 2008); Tafas v. Dudas, 511 F.Supp.2d 652, 660 (E.D.Va.
2007); Bryant v. Better Bus. Bureau of Greater Md., Inc., 923
F.Supp.2d 720, 728 (D.Md. 1996); Washington Gas Light Co. v.
Prince George’s County Council, Civ. Action No. DKC 08-0967,
2012 WL 832756, at *3 (D.Md. Mar. 9, 2012).
that

amici

desirable

should
and

why

state
the

“the
matters

disposition of the case.”
Judge

Davis

in

Bryant,

reason

why

asserted

an
are

Rule 29 indicates
amicus

relevant

Fed.R.App.P. 29(b)(2).

“[t]he

aid

of

amici

brief
to

is
the

As noted by

curiae

has

been

allowed at the trial level where they provide helpful analysis
of the law, they have a special interest in the subject matter
5

of the suit, or existing counsel is in need of assistance.”
Bryant, 923 F.Supp. at 728 (citing Waste Mgmt. of Pa., Inc. v.
City of York, 162 F.R.D. 34, 36 (M.D.Pa. 1995).
In their opposition, Plaintiffs state that they “do not
object in principle to [the Prospective Amici] being permitted
to file a brief in support [of Defendant] without participating
in discovery or oral argument,” but believe that the brief is
premature as no motions have been filed yet by the parties.
(ECF No. 39, at 1).

Plaintiffs also object to the proposed

memorandum because they contend that it attempts to introduce
facts outside of the complaint without supporting affidavits,
which would be inappropriate on a motion for summary judgment
even if the brief were to be considered at the motions stage.
They request that the motion be denied with leave to refile at
an appropriate time and with a memorandum that complies with
Fed.R.Civ.P.

56(c).

The

Prospective

Amici

counter

that

“[w]hether the Memorandum is filed on April 24 or six months
later,

the

facts

are

unlikely

to

change,”

and

that

the

information contained in the brief seeks to clarify context for
the court and should not be held to the same standards applied
to the parties in this case.

(ECF No. 40, at 1-2).

The Prospective Amici have demonstrated a special interest
in the outcome of the suit.
memorandum

in

support

of

They also have submitted a proposed
Defendant,
6

which

provides

helpful

information to the court.

No motions have been filed by the

parties in this case, however.

Thus, it is unclear how the

memorandum aids in the resolution of this matter, as there is no
decision to be made yet.
participate

as

amici

Allowing the Prospective Amici to

curiae

does

not

appear

to

prejudice

Plaintiffs or delay the proceedings, but a “motion for leave to
file an amicus curiae brief . . . should not be granted unless
the court ‘deems the proffered information timely and useful.’”
Bryant, 923 F.Supp. at 728 (quoting Yip v. Pagano, 606 F.Supp.
1566, 1568 (D.N.J. 1985)) (emphasis added).

Accordingly, the

Prospective Amici will be permitted to participate as amicus
curiae; the proposed memorandum will not be considered at this
time, but may be refiled at a later juncture.

The Prospective

Amici may seek leave to file an amicus curiae memorandum in
support of Defendant if and when dispositive motions are filed.2
B.
The

Motion to Intervene
following

entities

have

moved

to

intervene

as

defendants in the case: the American Legion; the American Legion
Department of Maryland; and the American Legion Colman Manor
Post 131 (collectively, “the Putative Intervenors”).
14 & 15).

(ECF Nos.

As the Putative Intervenors explain, the American

2

The Veterans of Foreign Wars of the United States also
requested to participate as amicus curiae in this case.
(ECF
No. 42).
The request will be granted and The Veterans of
Foreign Wars will be added as movants to the docket.
7

Legion is a wartime veterans service organization dedicated to
promoting support for American military veterans; the American
Legion Department of Maryland is responsible for the Legions’s
activities and membership within the state; and the American
Legion Post 131 is a chapter located in Maryland that hosts
patriotic

events

at

the

Bladensburg

Memorial throughout the year.

World

War

I

Veterans

(ECF No. 15, at 2).

The Putative Intervenors seek to intervene as a matter of
right under Fed.R.Civ.P. 24(a).

Alternatively, they seek to

intervene permissively under Rule 24(b)(2).

Federal Rule of

Civil Procedure 24 permits intervention in an action upon timely
application.
right

The Rule distinguishes between intervention as of

pursuant

to

Rule

pursuant to Rule 24(b).3

24(a),

and

permissive

intervention

The permissive intervention of a third

party to an action is governed by Fed.R.Civ.P. 24(b), which
provides that:
On timely motion, the court may permit
anyone to intervene who: . . . (b) has a
claim or defense that shares with the main
action a common question of law or fact.

3

Because the motion will be granted pursuant to Rule 24(b),
the merits of the Putative Intervenors’ arguments regarding
intervention as of right need not be considered.
8

Fed.R.Civ.P.

24(b)(1)(B).4

The

decision

to

grant

or

deny

a

motion to intervene pursuant to Rule 24(b) “lies within the
sound discretion of the trial court” although “some standards
have been developed to guide the courts in making intervention
determinations.”

See Hill v. W. Elec. Co., 672 F.2d 381, 386

(4th Cir. 1982).

A court, in exercising its discretion, “must

consider whether the intervention will unduly delay or prejudice
the adjudication of the original parties’ rights.”
24(b)(3).

Fed.R.Civ.P.

The Fourth Circuit has indicated that an important

factor to consider for permissive intervention is whether the
original parties will be prejudiced.

See W. Elec. Co. Inc., 672

F.2d at 386.
The Putative Intervenors argue that “both the Legion and
the Commission will advance the position that the Commission’s
ownership,

maintenance,

and

public

memorial is constitutional.”

display

of

this

veteran’s

(ECF No. 15, at 11).

Putative

Intervenors assert that their timely motion will not delay the
proceedings

or

prejudice

any

party.

They

point

out

that

Defendant even raised as an affirmative defense in its answer
that Plaintiffs have failed to join the American Legion as a
required party.

(See ECF No. 12, at 6).

Putative Intervenors

contend that they “have substantial experience with litigating
4

Here, there is no dispute that the Putative Intervenors’
motion is timely.
They moved to intervene shortly after
Defendant answered the complaint and prior to any discovery.
9

the

constitutionality

of

cross-shaped

veterans’

memorials,

experience the Legion believes would help sharpen the arguments
over that central issue.”
counter

that

permissive

because

Defendant

–

as

(ECF No. 15, at 11).
intervention

should

an

the

agent

of

not

Plaintiffs
be

government

granted
–

adequately represent the Putative Intervenors’ interests.

will
(ECF

No. 34, at 17).
The motion to intervene will be granted.

The Putative

Intervenors allege a strong interest in the subject matter of
this litigation, although this showing is not necessary under
Rule 24(b).5

See North Carolina Growers’ Ass’n, Inc. v. Solis,

No. 1:09CV411, 2009 WL 4729113, at *1 (M.D.N.C. Dec. 3, 2009).
Although
putative

the

analysis

intervenors

inadequately

for
to

represented

intervention
establish
by

that

existing

5

as

of

right

their

parties,

requires

interest
the

is

Putative

American Legion Post 3 was authorized to complete the
Peace Cross when the Committee of the Town of Bladensburg did
not have funds to complete it.
(ECF No. 15-8, at 2).
Post 3
then erected the Memorial that includes the Peace Cross.
American Legion Post 3 conveyed all its property interests in
the Memorial to Defendant in 1961, but stated that it “wishe[d]
to reserve its right to hold memorial and other ceremonies on
the property, and requested that if the Cross and the
surrounding
parcel
is
ever
removed
from
[Defendant’s]
jurisdiction [], that the Legion post be notified sufficiently
in advance to arrange for the future care and maintenance of the
Cross and the surrounding parcel.” (ECF No. 15-2, at 2). The
Putative Intervenors state that “American Legion Post 3 played a
key role in erecting the Memorial, [], but it dissolved in 1991
. . . with approximately half of its membership going to nearby
American Legion Post 131[,]” one of the putative intervenors
here. (ECF No. 15, at 3).
10

Intervenors are not required to make this showing for permissive
intervention.

Moreover,

Putative

Intervenors

share

a

common

defense with Defendant regarding the constitutionality of the
Peace

Cross.

See

Hewett

v.

City

of

King,

No.

1:12CV1179,

Amended Order, at 7 (M.D.N.C. May 1, 2014) (“American Legion,
the

Movant

here,

has

established

that

its

defense

that

the

Soldier Statue does not promote religion shares common questions
of law and fact with [d]efendant City.

Both American Legion and

the City seek to uphold the constitutionality of the Soldier
Statue.”).

Putative Intervenors also share common questions of

fact with Defendant regarding the history of the Peace Cross.
The court finds persuasive their arguments that “[a]s the party
that funded and built the Memorial and owned it for its first
four decades, the Legion is the entity best suited to supply the
Court with evidence of the Memorial’s history and context –
facts critical to the disposition of this case.”
at 9-10).

(ECF No. 45,

“[L]iberal intervention is desirable to dispose of as

much of a controversy involving as many apparently concerned
persons

as

is

compatible

with

efficiency

and

due

process.”

Feller v. Brock, 802 F.2d 722, 729 (4th Cir. 1986).
Although Plaintiffs argue that the addition of the Putative
Intervenors as parties to the litigation would prejudice them
and

delay

the

proceedings,

proceedings would be delayed.

they

do

not

explain

(ECF No. 34, at 17).
11

how

the

As stated

above, the case is in the early stages and discovery has not yet
commenced.

Cf. Alta v. United States E.P.A., 758 F.3d 588, 591

(4th Cir. 2014) (“[W]e observe that when CBF moved to intervene,
the proceedings below had already reached a relatively advanced
stage.

Seven

other

received

permission

parties
from

had

since

requested

district

the

long

court

to

intervene.

Several months of settlement negotiations had transpired.
EPA’s

motion

to

dismiss

argued, and denied.”).

Alt’s

case

had

been

and

fully

The

briefed,

Nor have Plaintiffs delineated how they

will be prejudiced by the addition of three new Defendants or
what extra effort they would have to expend in litigating this
case.

See

Hewett,

No.

1:12CV1179,

Amended

Order,

at

7

(“American Legion has participated in the case since the Order
of this Court in May, and no delay or prejudice has occurred.”).
Plaintiffs argue that even if the Putative Intervenors are
permitted to intervene as defendants, their participation should
be limited in three ways.

First, Plaintiffs argue that the

Putative Intervenors “should be limited to the single issue of
the

constitutionality

of

the

cross.”

(ECF

No.

34,

at

18).

Second, Plaintiffs assert that Putative Intervenors’ right to
discovery should be limited.

(Id. at 19).

Third, Plaintiffs

believe that the Putative Intervenors should be prohibited from
blocking or significantly delaying any settlement between the
original parties.

(Id.).

The court has discretion to limit
12

Putative Intervenors’ involvement under Rule 24(b), but declines
to do so here.

From their briefings, it appears that the role

of the Putative Intervenors in the litigation already will be
limited to the issues named above simply by the scope of the
complaint – namely, the constitutionality of the Peace Cross.
Moreover,

considering

establishment

of

the

their

prior

Peace

Cross

involvement
and

its

with

the

history,

the

participation of Putative Intervenors in discovery may aid in
the resolution of this matter.
their

participation

will

thwart

Finally, the arguments that
settlement

discussions

are

unfounded at this juncture.
Because the Putative Intervenors have a defense that shares
common factual and legal questions with the main action, and it
does not appear that their intervention will unduly delay or
prejudice the adjudication of the original parties’ rights, the
Putative Intervenors will be permitted to intervene permissively
as defendants in this action.
III. Conclusion
For the foregoing reasons, the motion to appear jointly as
amicus curiae and for leave to file an amicus curiae memorandum
will

be

granted.

granted

in

part.

The

motion

to

intervene

will

A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
13

be