In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1114

WILLIAM A. BOOKS and MICHAEL SUETKAMP,

Plaintiffs-Appellants,

v.

CITY OF ELKHART, INDIANA,

Defendant-Appellee.



Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 98 C 230--Allen Sharp, Judge.


MOTION TO RECALL AND STAY THE MANDATE/*
January 31, 2001




  RIPPLE, Circuit Judge (in chambers). This matter
is before me on the application of the City of
Elkhart, Indiana, for a stay of this court’s
mandate while the City seeks a writ of certiorari
in the Supreme Court of the United States. When
this application was first presented to me, I
ordered that the plaintiffs file a response. That
response has been received, and the matter is now
before me for disposition.

  Familiarity with our decision in Books v. City
of Elkhart, 235 F.3d 292 (7th Cir. 2000), is
presumed; I shall set forth only a thumbnail
sketch of the underlying litigation. The
plaintiffs, William Books and Michael Suetkamp,
residents of Elkhart, brought this action because
they objected to the placement of a monument
inscribed with the Ten Commandments on the lawn
of Elkhart’s Municipal Building. The district
court granted summary judgment in favor of the
City. On December 13, 2000, this court reversed
that decision. We held that, under the facts
established in this record, the primary purpose
and effect of the monument is to advance or
endorse religion; therefore, the display violates
the Establishment Clause of the First Amendment
to the Constitution of the United States. We then
remanded the case with instructions that the
district court fashion a remedy that, while
correcting the condition that offends the
Constitution, otherwise does not intrude on the
authority of local government to decide on the
placement of the monument. We noted that arriving
at a realistic solution would take some time and
expressed confidence that the district court
would ensure that Elkhart authorities had a
reasonable time to address in a reasonable and
prudent manner the task of conforming to the
letter and the spirit of the constitutional
requirement.

1.

  When a party asks this court to stay its mandate
pending the filing of a petition for a writ of
certiorari, that party must show that the
petition will present a substantial question and
that there is good cause for a stay. See Fed. R.
App. P. 41(d)(2)(A). The grant of a motion to
stay the mandate "is far from a foregone
conclusion." 16A Charles Alan Wright et al.,
Federal Practice and Procedure sec. 3987.1 (3d
ed. 1999). Instead, the inquiry must focus on
whether the applicant has a reasonable
probability of succeeding on the merits and
whether the applicant will suffer irreparable
injury. See Williams v. Chrans, 50 F.3d 1358,
1360 (7th Cir. 1995) (per curiam); United States
v. Holland, 1 F.3d 454, 456 (7th Cir. 1993)
(Ripple, J., in chambers).

2.

  To demonstrate a reasonable chance of succeeding
on the merits, the applicant must show a
reasonable probability that four Justices will
vote to grant certiorari and a reasonable
possibility that five Justices will vote to
reverse the judgment of this court. See Williams,
50 F.3d at 1360; Holland, 1 F.3d at 456. In
undertaking this assessment, I must consider the
issues that the applicant plans to raise in the
certiorari petition in the context of the case
history, the Supreme Court’s treatment of other
cases presenting similar issues, and the
considerations that guide the Supreme Court in
determining whether to issue a writ of
certiorari. See Williams, 50 F.3d at 1361. This
assessment requires that I undertake a somewhat
different task than that performed by a circuit
judge in deciding a case on the merits. The
Supreme Court has made it clear that, in deciding
cases presented in the normal course of decision,
a lower court judge ought not anticipate changes
in established doctrine. See State Oil Co. v.
Khan, 522 U.S. 3, 20 (1997); Rodriguez de Quijas
v. Shearson/American Express, Inc., 490 U.S. 477,
484 (1989). On the other hand, in determining
whether to grant an application for stay of
mandate, the judge must perform the predicative
function of anticipating the course of decision
in the Supreme Court of the United States. See
INS v. Legalization Assistance Project, 510 U.S.
1301, 1304 (1993) (O’Connor, J., in chambers).

  Even taking into account this different
perspective, I cannot say that the City has made
a strong case that further review by the Supreme
Court is warranted or that the Supreme Court will
ultimately reach a decision different from the
one reached in this court. The City asserts that
this court’s decision is in direct conflict with
the Tenth Circuit’s decision in Anderson v. Salt
Lake City Corp., 475 F.2d 29 (10th Cir.), cert.
denied, 414 U.S. 879 (1973), and the Colorado
Supreme Court’s decision in Colorado v. Freedom
from Religion Foundation, Inc., 898 P.2d 1013
(Colo. 1995), cert. denied, 516 U.S. 1111 (1996).
I cannot accept this contention. The Tenth
Circuit recently acknowledged that "[s]ince
Anderson was decided . . . more recent cases,
including a Supreme Court case, casts [sic] doubt
on the validity of our conclusion that the Ten
Commandments monolith is primarily secular in
nature." Summum v. Callaghan, 130 F.3d 906, 910
n.2 (10th Cir. 1997). Although the Tenth Circuit
decided that it need not revisit the Anderson
decision in Summum, the court noted that the
Supreme Court in Stone v. Graham, 449 U.S. 39
(1980) (per curiam), said that "[t]he Ten
Commandments are undeniably a sacred text in the
Jewish and Christian faiths, and no legislative
recitation of a supposed secular purpose can
blind us to that fact." Summum, 130 F.3d at 912
n.8. The Supreme Court of Colorado’s decision in
Freedom from Religion Foundation, Inc. involves a
placement situation significantly different from
the one before us in this case. See 898 P.2d at
1015-17.

3.

  The other assessment usually undertaken in
deciding an application for stay of mandate is
whether irreparable injury will take place if the
stay is not granted. Here, it is necessary to
balance the equities of granting a stay by
assessing the harm to each party if a stay is
granted. See California v. American Stores Co.,
492 U.S. 1301, 1307 (1989) (O’Connor, J., in
chambers); Holtzman v. Schlesinger, 414 U.S.
1304, 1308-09 (1973) (Marshall, J., in chambers).
In this case, both parties agree that a stay
ought to be granted. I also must take into
consideration the public interest.

  In their response to this application, the
plaintiffs state that before any steps are taken
to remedy the violation, the case "should be
finally resolved in all respects." I agree that,
given the remedial task before the parties--a
task that necessarily will require great wisdom
and thoughtfulness by all the parties and their
counsel--the public interest is best served by
affording the City a full opportunity to seek
review in the Supreme Court of the United States
before its officials devote attention to
formulating and implementing a remedy. Notably,
in its opinion, this court specifically
recognized that the formulation of a remedy would
require significant time and attention. See
Books, 235 F.3d at 307-08. The court specifically
noted that "Elkhart has the right and, indeed,
the obligation to take into consideration the
religious sensibilities of its people and to
accommodate that aspect of its citizens’ lives in
any way that does not offend the strictures of
the Establishment Clause." Id. at 307.

4.

  Accordingly, although the City presents a weak
case for a grant of certiorari, the equities of
the situation counsel that the parties not be
required to address the merits until the City has
been afforded an opportunity to present its
contentions to the Justices of the Supreme Court
of the United States. The mandate of this court
is therefore stayed until the expiration of the
time allowed for the filing of a petition for
certiorari. If a petition is filed, this stay
shall continue until the conclusion of all
proceedings before the Supreme Court of the
United States.

IT IS SO ORDERED.

/* This opinion was released initially in typescript
form.
