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Tuesday, October 30, 2007
Ind. Decisions - In addition to legislative prayer decision, 7th Circuit issues two other Indiana decisions today
In Digrugilliers v. City of Indianapolis (SD Ind., Judge Barker), a 10-page opinion, Judge Posner writes:
The plaintiff is the pastor of the Baptist Church of the West Side, a small congregation (30 to 50 members) that conducts church services in a building that it has leased in a part of Indianapolis zoned C-1. Under the Indianapolis zoning code, the church’s building is a “religious use,” defined as “a land use and all buildings and structures associated therewith devoted primarily to the purpose of divine worship together with reasonably related accessory uses, which are subordinate to and commonly associated with the primary use, which may include but are not limited to, educational, instructional, social or residential uses.” City of Indianapolis Zoning Code § 735-751(b). A religious use is forbidden in C-1 districts without a zoning variance. So the City told the plaintiff that he would have to either apply for a variance, which would require a proceeding before the board of zoning appeals, see Ind. Code § 36-7-4- 918.4, or move his church. The plaintiff did neither, but instead brought this suit; he is authorized by the charter of the church to sue on the church’s behalf.
The suit charges that the requirement of obtaining a variance in order to make a religious use of land in C-1 districts violates the provision of the Religious Land Use and Institutionalized Persons Act of 2000 [RLUIPA], 42 U.S.C. § 2000cc et seq., that forbids a local government to “impose or implement a land use regulation in a manner that . . . . treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.” § 2000cc(b)(1). The plaintiff moved for a preliminary injunction that the district court denied on the sole ground that the suit has negligible prospects of success. The plaintiff appeals from that denial. * * *
So the plaintiff’s claim that the City is violating the federal Act has at least some, and possibly great, merit. The district judge, having ruled that it had no possible merit, did not consider the other factors, besides the merits, that are germane to the decision whether to grant or deny a preliminary injunction. The judge would have been right to pretermit that inquiry had she been right that the claim had no merit; but we have seen that it has at least some merit, and no more is required to necessitate an inquiry into the balance of irreparable harms. Cavel International, Inc. v. Madigan, No. 07-2658, 2007 WL 2239215, at *4 (7th Cir. July 18, 2007). The balance seems to favor the plaintiff. If his church must vacate its premises while his case wends its way to completion, the church’s religious activities will be hampered. It is hard to see what difference it can make to the City if the church is allowed to remain in its current premises until final judgment (by which we do not mean the Day of Judgment). The church has been in its present premises since the middle of 2005, without, so far as appears, causing any trouble to anyone, including other users of land in its vicinity. But striking the balance of irreparable harms (the harm to the plaintiff if preliminary relief is denied, the harm to the City if it is granted) is a task for the district court in the first instance. REVERSED AND REMANDED.
In Holmes v. Buss (SD Ind., Judge McKinney), a 15-page opinion, Judge Posner concludes:
We do not prejudge the remand. As the petitioner’s lawyer concedes, the fact that a litigant is psychotic does not mean that he cannot assist in his case, United States v. Teague, 956 F.2d 1427, 1432 (7th Cir. 1992); Eddmonds v. Peters, 93 F.3d 1307, 1314 (7th Cir. 1996); Smith v. Armontrout, 865 F.2d 1502, 1506 (8th Cir. 1988) (en banc), especially at the appellate level. United States v. Roberts, 915 F.2d 889, 891-92 (4th Cir. 1990). Much of the time, even at the December hearing, the petitioner was lucid, even articulate. He has a good memory, at least a rudimentary familiarity with the legal process, knows who he is, where he is, etc.; and we take seriously the possibility voiced by Dr. Olive that the petitioner is malingering. If he is not malingering, however, he seems insanely preoccupied with a frivolous ground of appeal and oblivious to the other, more substantial, grounds that his lawyers wish to press, as well as severely distracted by fear of diabolical beings who are scheming against him, preventing him from reading any documents relating to his case. These matters require further exploration in the district court, pending which the appeals will remain on our docket. REMANDED
Posted by Marcia Oddi on October 30, 2007 01:56 PM
Posted to Ind. (7th Cir.) Decisions