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Judge throws out lawsuit over Dewey Hill resolution

Becky Vargo • Oct 26, 2015 at 8:48 PM

Circuit Judge Jon Hulsing threw out the lawsuit filed earlier this year by a group of Grand Haven citizens. He wrote that the city has the right to decide what to do with its own property.

“We’re appealing,” said the group’s attorney, Helen Brinkman. “We’re just disappointed that the judge didn’t follow the plaintiffs’ argument and rule in our favor.”

Read the judge's decision: Download the PDF (Related Files) below this story.

In April, Ann Dawson, Jeff Grunow, Wayne and Shirley Erxleben, Laura Sternberg, and Gary and Mary Kievit anonymously filed a lawsuit against the City of Grand Haven.

They asked judges to rule against a City Council resolution made in January that no longer permits the cross to be raised on Dewey Hill.

The resolution followed requests to the city from a group called “Remove the Grand Haven Cross” — via Washington D.C.-based Americans United for the Separation of Church and State — that they be allowed to erect displays of their choosing on the hill or the city would face a lawsuit from them.

The first lawsuit was thrown out in early June when Hulsing ruled the anonymous group didn’t meet the criteria required for an “unincorporated voluntary association.”

Brinkman filed a new lawsuit the following week, adding the names that she said were kept off the original claim over the fear of retaliation.

Earlier this month, both sides filed for summary disposition (a decision) to be made regarding the lawsuit. At that hearing, Brinkman argued that the cross, erected in the early 1960s, was part of a public forum that could not be taken down — or it would be considered religious discrimination — unless the city closed the forum entirely.

City attorney Robert Schindler said the city owns the monument on top of Dewey Hill, as well as the property, and thus they have the right (governmental speech) to decide what should or shouldn’t be displayed on the hill.

In his decision on Tuesday, Hulsing said that the plaintiffs disagreed with a policy decision of the Grand Haven City Council.

“That government speech offends portions of the electorate is to be expected,” the judge wrote. “The alternative is no alternative in that the government could not take a position on any matter. The City of Grand Haven’s resolution limiting the fixture to promoting the United States Coast Guard and the city’s long relationship with the Coast Guard is a valid exercise of its inherent authority to establish policy. Should plaintiffs seek to change that policy, they are free to do so through political means.”

Brinkman pointed out that while Hulsing agreed with the city’s right to have government speech, “he doesn’t say anywhere in there that it’s not constitutional to have the cross on the hill.”

Brinkman said the citizens group would have the help of a statewide or national law firm — who had earlier offered to help the group — pending the decision on the lawsuit.

City Manager Pat McGinnis expressed relief that the decision was made.

"The attorney assigned by our insurance company presented a compelling argument and Judge Hulsing has made his decision," McGinnis said.  "Now we move forward with the business of the people, like street maintenance, law enforcement and utility operation as directed by our elected body."

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