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Monday, January 03, 2005

Indiana Decisions - 7th Circuit posts three today, including Ten Commandments decision

Mercier, Sue v. Fraternal Order 1254 (WD Wis.)

Before BAUER, MANION, and KANNE, Circuit Judges.
MANION, Circuit Judge. For almost forty years, a monument
inscribed with the Ten Commandments (the “Monument”)
has occupied a spot in Cameron Park, a public park in the
City of La Crosse, Wisconsin (“La Crosse” or the “City”).
Recently, certain residents of La Crosse, joined by an advocacy
group, sued the City claiming the Monument violated
the Establishment Clause of the First Amendment. In response,
La Crosse sold a portion of the park and the Monument
to the Order of Eagles, the service organization that
had originally donated the Monument to the City. The
district court held that this sale violated the Establishment
Clause. We reverse. * * *

In the face of litigation threatening the presence of a monument
of the Ten Commandments in a public park, the City
of La Crosse decided to sell that Monument and a small
parcel of land surrounding the Monument to the group that
had donated the Monument to the City forty years ago. This
sale has clearly not pleased everyone, and it likely did not
entirely please anyone. It was, however, constitutionally
appropriate. The decision of the district court is reversed
and the case is remanded so that the district court may enter
an order of summary judgment in favor of the City and the

BAUER, Circuit Judge. I respectfully dissent.
If one accepts the premise that, by its present action, the
authorities of the City of La Crosse has effectively disassociated
themselves and the City from an endorsement of
religion by sponsoring a monument of The Ten
Commandments, the majority opinion is hard to quarrel
with. But I believe that the District Court had it right; the
actions of the City actually show a stubborn refusal to
separate itself from the display of a purely religious monument.
Having created a problem by the original act of
permitting a monument of The Ten Commandments to be
displayed on public property with what any observer would
have to conclude was an endorsement of the message of the
commandments, the City elected a solution that I think
borders on a fraud. * * *

And, as I recall the story, when asked whether the law of
God or the law of man was law to follow, the answer by the
founder of Christianity was, “Render unto Caesar the things
that are Caesar’s and to God the things that are God’s.”
Neither God nor religion requires an endorsement from
Government—nor does the law permit it.
I would affirm the finding and order of the district court.

Espinoza-Franco, Wal v. Ashcroft, John D. (On Petition for Review of an Order of the Board of Immigration Appeals)
Before RIPPLE, EVANS, and SYKES, Circuit Judges.
PER CURIAM. Walter Leopoldo Espinoza-Franco was convicted
under an Illinois statute of felony sexual abuse of his
daughter. The Immigration and Naturalization Service
against him, arguing that he is removable because he committed
“sexual abuse of a minor”—an aggravated felony
under the Immigration and Nationality Act. After a hearing,
an Immigration Judge ordered his removal, and the
Board of Immigration Appeals affirmed. Espinoza-Franco
admits having committed the crime but argues that it is not
an aggravated felony. Because the crime does constitute an
aggravated felony, we dismiss his petition for review of the
administrative proceedings for lack of jurisdiction.
USA v. Murry, Darnell (ND Ill.)
Before RIPPLE, KANNE and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. A jury found Darnell Murry
guilty of one count of transporting fraudulently obtained
merchandise across state lines in violation of 18 U.S.C.
§§ 2314 and 2, and one count of obtaining goods valued at
over $1000 through the unauthorized use of an access device
in violation of 18 U.S.C. § 1029(a). On appeal, Murry
challenges both his conviction and his sentence, claiming
the district court erred in several evidentiary rulings and in
instructing the jury on the use of summary charts admitted
into evidence. He complains the court also erred in setting
the amount of restitution he is required to pay as part of his
sentence. We affirm the conviction but vacate and remand
the sentence so that the district court may adjust the
restitution order.

Posted by Marcia Oddi on January 3, 2005 01:46 PM
Posted to Ind. (7th Cir.) Decisions