Case 8:14-cv DKC Document 15 Filed 05/01/14 Page 1 of 13 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND GREENBELT DIVISION

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1 Case 8:14-cv DKC Document 15 Filed 05/01/14 Page 1 of 13 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND GREENBELT DIVISION American Humanist Association et al., v. Plaintiffs, Maryland-National Capital Park and Planning Commission, Defendant, The American Legion et al., Movant-Intervenors. Civil Action No. 8:14-cv-550-DKC MOVANT-INTERVENORS MEMORANDUM IN SUPPORT OF MOTION TO INTERVENE

2 Case 8:14-cv DKC Document 15 Filed 05/01/14 Page 2 of 13 INTRODUCTION With the support and consent of Defendant Maryland-National Capital Park and Planning Commission ( Commission, The American Legion, The American Legion Department of Maryland, and The American Legion Colmar Manor Post 131 (collectively, the Legion, respectfully submit this memorandum in support of their Motion to Intervene as defendants in the instant action. 1 The American Legion is a wartime veterans service organization dedicated to promoting patriotism and support for American military veterans, with members and Posts throughout Maryland and beyond. (Holdcraft Decl., Ex. A at 2; Mission, The American Legion, (last visited Apr. 30, 2014; Departments, The American Legion, (last visited Apr. 30, It promotes and defends numerous veterans memorials around the country, including its members rights to use and enjoy them to honor fellow veterans. (See Br. of Amici Curiae Veterans Of Foreign Wars et al. at 1-2, Salazar v. Buono, 559 U.S. 700 (2010 (No ; Ex. A at 2. The Department of Maryland ( American Legion Maryland is responsible for the Legion s interests, activities and membership within the state. American Legion Post 131, which is located in Colmar Manor, Maryland, is an American Legion chapter that hosts patriotic events at the Bladensburg World War I Veterans Memorial (hereinafter, the Memorial multiple times a year, attended by Legion members from Maryland and elsewhere. (Ex. A at 5; see also Post 131 Memorial Day 2011 Program, Ex. B. The Legion requests intervention to protect its current real property interests in the Memorial, its historic involvement in constructing the Memorial and owning it for 35 years, and its continued use of the monument for veterans memorial services. These interests are threatened by the Plaintiffs suit 1 The Commission recognizes the Legion s right to intervene to defend its interests, considers the Legion a necessary party, and consents to intervention. 1

3 Case 8:14-cv DKC Document 15 Filed 05/01/14 Page 3 of 13 alleging that the Commission s current ownership, maintenance, and public display of the Memorial violates the Establishment Clause of the First Amendment, as incorporated against the state by the Fourteenth Amendment. The Commission filed its first responsive pleading just this week, and no other party has sought to intervene or join the action. STATEMENT OF FACTS I. THE AMERICAN LEGION The American Legion was founded in 1919 by veterans of World War I. It is chartered by Congress as a patriotic veterans organization.... [f]ocus[ed] on service to veterans, servicemembers and communities. (History, The American Legion, (last visited Apr. 30, Shortly after the Legion was founded, veterans of Maryland s Fourth Regiment formed American Legion Snyder-Farmer Post 3 in Hyattsville, Maryland. The Post was named after Maurice B. Snyder and George W. Farmer, two of the first Prince George s men to die in the war, killed in action during the bloody Meuse-Argonne Offensive in France. (News & Notes Nov. 1997, Prince George s Cnty. Hist. Soc y, Ex. C at 3; Richard A. Wilson, Bladensburg War Memorials, Prince George s Magazine, Fall 1983, Ex. D at 10. American Legion Post 3 was formed under the auspices of American Legion Maryland. (See National Constitution and By-laws, The American Legion, Const. art. III, (last visited Apr. 30, American Legion Post 3 played a key role in erecting the Memorial, as described below, but it dissolved in 1991 (see Nat l Exec. Comm Mins., Ex. E at (resolution to cancel Post 3 charter, with approximately half of its membership going to nearby American Legion Post 131. (See Post 3 Transfer Request, Ex. F; Post 3 Charter Cancellation Request, Ex. G. By operation of the Legion s national bylaws, the old Post s property rights and other interests in the Memorial devised to 2

4 Case 8:14-cv DKC Document 15 Filed 05/01/14 Page 4 of 13 American Legion Maryland. (See National Constitution and By-laws, The American Legion, By-Laws. art. III, 3, (last visited Apr. 30, Those rights in the Memorial are now exercised primarily by members of American Legion Post 131. (See Ex. A at 5. II. ERECTION OF THE MEMORIAL Also in 1919, the Prince George s Memorial Committee broke ground on the monument now known as the Bladensburg World War I Veterans Memorial. (Ex. D at 9. The Memorial s cross shape is modeled after the tombstones used to mark the graves of American military servicemen killed and buried on foreign soil in World War I; that symbolic purpose was echoed by the committee s treasurer, herself a bereaved mother, who wrote that her son lost his life in France and because of that I feel that our memorial cross is, in a way, his grave stone. (Id. At the same time, American Legion Post 3 began raising funds towards the Memorial s completion; Mrs. William Farmer, mother of one of Post 3 s namesakes, broke the ground to kick off the construction. (See id.. The project nearly derailed at the start, as the county s Memorial Committee quickly proved unable to raise more than a fraction of the funds needed for the monument, so American Legion Post 3 offered to take on the project itself. (See Ex. C at 3; Ex. D at 10. On February 25, 1922, Bladensburg s town commissioners authorized American Legion Post 3 to complete the Memorial in order that it might be a finished and fitting tribute to those of our boys who gave their lives in the World War. (Bladensburg Comm rs 1922 Deed to Am. Legion, Ex. H at 1 (located in the public record at: Prince George s Cnty. Cir. Ct. (Land Records 421, p. 0381, MSA_CE64_507. The commissioners also conveyed to Post 3 that parcel of ground upon which the cross now stands and that part necessary to complete the park around said cross, entrusting Post 3 with the perpetual care of the grounds. (Id. 3

5 Case 8:14-cv DKC Document 15 Filed 05/01/14 Page 5 of 13 American Legion Post 3 made good on its promise. Over the next three years it raised $23,000 out of the total $25,000 needed to complete the Memorial. (Ex. C at 3. Post 3 then erected the Memorial, with the Legion s own emblem at its center (which only the Legion had the right to bestow, per its federal charter, at 36 U.S.C (See Compl (noting Legion s emblem, but failing to identify its origin. American Legion Post 3 dedicated the Memorial on July 12, 1925 (see Ex. C at 3, inviting Mrs. Bradley A. Snyder of Bladensburg, the mother of the other Post 3 namesake, to unveil the Memorial to the citizens who had made its construction possible (see Ex. D at 10. III. THE LEGION S ONGOING PROPERTY AND ORGANIZATIONAL INTERESTS IN THE MEMORIAL In the ensuing nine decades, American Legion Posts have continuously held memorial services at the Memorial. (See, e.g., Ex. A at 5; Ex. D at 10; Compl. 42. Those services have continued unabated despite changes in the property s ownership. In the State Roads Commission condemned the parcel adjacent to the Memorial as part of a highway modernization plan. (See Prince George s Cnty. Land Record, Liber , Ex. I (regarding Bonnell v. Casey. American Legion Post 3, however, was not made party to the court order disposing of the property, and the Memorial and its grounds do not appear to have fallen within the condemnation order. (See id. In 1960, at American Legion Post 3 s request, the State deeded a portion of its seizure to Defendant, Maryland-National Capital Park and Planning Commission ( Commission. (See Md. Rd. Comm n Mins., Oct. 25, 1960, Ex. J; Md. Rd. Comm n Deed, Ex. K. The Post then negotiated with the Commission over the Post s exact property rights to the Memorial. In 1961, American Legion Post 3 conveyed all its property interests in the Memorial to the Commission, but reserved an easement (or irrevocable license or similar interest in the form of a right to conduct veterans services on the property. (See Waldo Burnside Letter, Mar. 1, 1961, Ex. L (including Post 3 Resolution of

6 Case 8:14-cv DKC Document 15 Filed 05/01/14 Page 6 of 13 (hereinafter, 1961 Conveyance. The Post also received a right to intervene in the care and maintenance of the Memorial, under which it would be notified sufficiently in advance to make arrangements for the care and maintenance of the Cross and the surrounding parcel should the Commission lose jurisdiction over the Memorial. (See id. at 1. American Legion Post 131 continues to conduct memorial services regularly at the Memorial (see Ex. A at 5; see also Ex. D at 10 (memorial is a famous landmark in Prince George s County. It has been the site of numerous commemorative services...., including its upcoming services this Veterans Day (Ex. A at 5. ARGUMENT I. THE LEGION S PROPERTY AND ORGANIZATIONAL INTERESTS JUSTIFY INTERVENTION AS OF RIGHT. Given its property interests, historic involvement, and current use of the Memorial and its grounds, the Legion is entitled to intervene as of right. Its motion satisfies all four requirements for intervention under Fed. R. Civ. P. 24(a(2: (1 the application to intervene must be timely; (2 the applicant must have an interest in the subject matter of the underlying action; (3 the denial of the motion to intervene would impair or impede the applicant s ability to protect its interest; and (4 the applicant s interest is not adequately represented by the existing parties to the litigation. Houston Gen. Ins. Co. v. Moore, 193 F.3d 838, 839 (4th Cir A. The Motion Comes at the Beginning of the Case and Thus Is Timely. The Legion s motion comes less than a week after the Commission s first filing. Three factors determine the timeliness of a motion to intervene: how far the suit has progressed, the prejudice that delay might cause other parties, and the reason for any tardiness in moving to intervene. Gould v. 5

7 Case 8:14-cv DKC Document 15 Filed 05/01/14 Page 7 of 13 Alleco, Inc., 883 F.2d 281, 286 (4th Cir Here, the motion is filed at the beginning of the case, and its granting would not cause undue delay or otherwise prejudice the parties. B. The Legion Has Protectable Interests at Stake. As discussed above, American Legion Post 3 built almost all of the Memorial and owned and maintained it for 35 years, and American Legion Post 131 regularly holds veterans memorial services there, as even the Plaintiffs recognize (see Compl. 42. Moreover, American Legion Maryland owns an easement or similar interest for the purpose of holding memorial services and a right to intervene in the care and maintenance of the property. Collectively, these interests more than suffice for intervention as of right. While Rule 24(a(2 does not specify the nature of the interest required for a party to intervene as a matter of right, the Supreme Court has recognized that [w]hat is obviously meant... is a significantly protectable interest. Teague v. Bakker, 931 F.2d 259, 261 (4th Cir (quoting Donaldson v. United States, 400 U.S. 517, 531 (1971; see also Cooper Techs., Co. v. Dudas, 247 F.R.D. 510, 515 (E.D. Va ( Where the intervenor stands to gain or lose by the direct legal operation of the district court s judgment on the plaintiff s complaint, the intervenor s interest in the subject matter of the litigation is significantly protectable. (quoting Teague, 931 F.2d at 261. An interest relating to the property... that is the subject of the action will satisfy this prong. Fed. R. Civ. P. 24(a(2; see also Hardy-Latham v. Wellons, 415 F.2d 674, 676 (4th Cir (upholding intervention as of right where intervenors had undisputed property rights in shares of fund; Day v. DB Capital Grp., LLC, No. 8:10-CV-01658, 2011 WL , at *23 (D. Md. Mar. 11, 2011 (Chasanow, C.J. (granting intervention as of right where movants had direct interest in the... property at issue. 6

8 Case 8:14-cv DKC Document 15 Filed 05/01/14 Page 8 of 13 Consistent with the Rule s requirement, the Legion has multiple interest[s] relating to the property. Fed. R. Civ. P. 24(a(2. Most important, American Legion Maryland holds two property rights: an easement or similar interest for the purpose of holding memorial services, and a right to intervene on behalf of the Memorial s preservation in situations like the suit at bar. American Legion Post 131 routinely exercises its rights under the easement, holding memorial services every Veterans Day, among other occasions. (Ex. A at 5. And even the Plaintiffs have acknowledged that The American Legion has historically conducted memorial services at the Memorial. (See Compl. 42. Those property rights spring out of American Legion Post 3 s former ownership of the Memorial and the surrounding grounds as well as its historic and unbroken involvement in the design, funding, construction, and maintenance of the Memorial. Indeed, Post 3 s 1961 Conveyance to the Defendant reserved these rights precisely to guarantee that the American Legion would always stay involved in the Memorial s use and protection. (See 1961 Conveyance, Ex. L, at 1, 4. The very reason for The American Legion s constant involvement with the Memorial honoring wartime veterans and especially servicemembers felled in war betokens another distinct interest at stake. As the representative of approximately 2.4 million wartime veterans, including those at local Post 131, The American Legion has an organizational interest in the use and enjoyment of the Memorial and its attendant grounds to honor deceased veterans. Even apart from its property interests in the Memorial, the Legion wishes to preserve its members ability to use and enjoy the memorial it constructed the kind of interest courts have found sufficient for intervention as of right. 2 2 See, e.g., United States v. Carpenter, 526 F.3d 1237, 1237 (9th Cir (granting intervention as of right where the interest of the intervenor-appellants is the use and enjoyment of the unique aesthetic environment of this wilderness area even where they have no property interest ; Utah Ass n of Counties v. Clinton, 255 F.3d 1246, 1252 (10th Cir (granting intervention as of right where a conservationist group had an interest relating to the monument and its continued existence by virtue of their support of its creation, their goal of vindicating their conservationist vision through its preservation, their use of the monument in pursuit of that vision, and their economic stake in its continued existence ; Mausolf v. Babbitt, 85 F.3d 1295, 1302 (8th Cir (granting intervention as of right to conservationists interested in 7

9 Case 8:14-cv DKC Document 15 Filed 05/01/14 Page 9 of 13 C. Removing the Memorial Would Impair the Legion s Interests. The Legion s real property interests and its interests in the use and enjoyment of the Memorial would certainly be impaired if it were demolished or otherwise removed from public display. Cf. Day v. DB Capital Grp., LLC, No , 2011 WL , at *23 (D. Md. Mar. 11, 2011 (Chasanow, C.J. (finding movant-intervenor s property interest in deed of trust threatened by plaintiff s quiet title action. D. The Commission s Potentially Divergent Interests Make It Inadequate to Represent the Legion s Interests. Over the course of the litigation, the Legion s interests may diverge from the Commission s. According to the Fourth Circuit, that possibility is all the Legion needs show to prevail on the final prong of Rule 24(a(2. The Legion s burden of showing an inadequacy of representation is minimal. Virginia v. Westinghouse Elec. Corp., 542 F.2d 214, 216 (4th Cir (citing Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972; see, e.g., Teague v. Bakker, 931 F.2d at 262 (reversing district court s denial of intervention, for failure to treat the movant s burden of proving inadequate representation as minimal per Trbovich. An interest between the movant and the parties that may diverge at points is satisfactory for this analysis. See, e.g., In re Sierra Club, 945 F.2d 776, (4th Cir Although the Legion and the Commission may share some objectives, [the Commission] is not an adequate representative for [the Legion]. Id. at 780. As the representative of approximately 2.4 million wartime veterans, including those at the local Post and from every state in the nation, the Legion (continued enjoyment of [national park s] tranquility and beauty ; see also South Carolina Wildlife Fed n v. Limehouse, 549 F.3d 324, 329 (4th Cir (environmental groups had standing based on assertion that the litigation could harm its members ability to use and enjoy the relevant area for a variety of educational, scientific, recreational, and aesthetic purposes, and that one or more of its members currently use the land for such purposes ; Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 154 (4th Cir (in analyzing standing, where the damage is to an individual s aesthetic or recreational interests, [t]he Supreme Court has made clear that such interests may be vindicated in the federal courts. 8

10 Case 8:14-cv DKC Document 15 Filed 05/01/14 Page 10 of 13 seeks intervention to protect both American Legion Maryland s real property interests and the freedom of the Legion s members to use and enjoy the Memorial to honor those veterans who paid the ultimate price in service to our nation. 3 The Commission s interest, by contrast, is to improve the quality of life for all of the citizens of the bi-county area it serves. (See Our Mission, The Maryland-National Capital Park and Planning Commission, (last visited Apr. 30, This mandate does not cover the real property rights of American Legion Maryland or the Legion s interests in its members continued use of the Memorial to honor military veterans. The Commission s interest here is to resolve the instant controversy with the Plaintiffs, which could be achieved in any number of ways, including ones adverse to the Legion s interests. The potential divergence of interests is further underscored by Plaintiffs claim for attorneys fees against the Commission, which may dampen its ardor in defending the suit. By contrast, as an intervenor the Legion could be liable for fees only where the intervenors action was frivolous, unreasonable, or without foundation. Democratic Party of Wash. v. Reed, 388 F.3d 1281, 1288 (9th Cir (quoting Indep. Fed. of Flight Attendants v. Zipes, 491 U.S. 754, 761 (1989. Because its defense of the Memorial will be neither frivolous, unreasonable, [n]or without foundation, the Legion has no fear of liability for fees. II. ALTERNATIVELY, THE LEGION SHOULD BE GRANTED PERMISSIVE INTERVENTION. If the Court has any doubt whether the Legion may proceed as an intervenor as of right, then it should instead permit the Legion to intervene under Rule 24(b. Under that rule, any person with a 3 To defend those interests, The American Legion and its counsel have also developed expertise in the precise legal question presented here, namely, the constitutionality of cross-shaped veterans memorials. (See, e.g., Defendant-Intervenor Am. Legion Summ. J. Br., Hewett v. City of King, No. 1:12-CV (M.D.N.C. Nov. 29, 2013; Br. of Amici Curiae Veterans Of Foreign Wars et al. at 1-2, Salazar v. Buono, 559 U.S. 700 (2010 (No

11 Case 8:14-cv DKC Document 15 Filed 05/01/14 Page 11 of 13 claim or defense that shares with the main action a common question of law or fact should be allowed to intervene, so long as it would not unduly delay or prejudice the adjudication of the original parties rights. Fed. R. Civ. P. 24(b(1, (3. This rule should be applied liberally 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 The Legion s defense of the Memorial shares questions of law and fact that may ultimately control the Commission s defense as well, which is likely another reason the Commission does not oppose this motion. While their interests may diverge, both the Legion and the Commission will advance the position that the Commission s ownership, maintenance, and public display of this veterans memorial is constitutional. The Legion s timely application will not unduly delay the litigation, and its participation will not prejudice either side. And as mentioned above, The American Legion and its counsel have substantial experience with litigating the constitutionality of cross-shaped veterans memorials, experience the Legion believes would help sharpen the arguments over that central issue. In a similar case (where the threatened property interests were not as great, the Middle District of North Carolina recently granted The American Legion and one of its Posts permissive intervention to defend the constitutionality of a public statue of a soldier kneeling before the cross-shaped headstone of a fallen comrade. See Hewett v. City of King, No. 1:12-CV-01179, slip op. at 1 (M.D.N.C., Sept. 23, 2013, Ex. M. The court held under Rule 24(b that The American Legion and its local Post had established that its defense that the Soldier Statue does not promote religion shares common questions of law and fact with Defendant City. Both American Legion and the City seek to uphold the constitutionality of the Soldier Statue. Id., slip op. at 6. Here, where the Legion s property interests are far greater, the same rationale supports permissive intervention in this matter, as well. 10

12 Case 8:14-cv DKC Document 15 Filed 05/01/14 Page 12 of 13 CONCLUSION For the reasons mentioned above, the Court should grant the Legion s request to intervene as of right, or in the alternative, permissively, as defendants in this action. Dated: May 1, 2014 Respectfully submitted, /s/ Christopher DiPompeo Christopher DiPompeo (Fed. Bar. No Walter D. Kelley, Jr. (pro hac vice to be filed Jonathan A. Berry (pro hac vice to be filed JONES DAY 51 Louisiana Avenue, N.W. Washington, DC Telephone: ( Facsimile: ( cdipompeo@jonesday.com wdkelley@jonesday.com jberry@jonesday.com Jeff Mateer (pro hac vice to be filed Roger Byron (pro hac vice to be filed LIBERTY INSTITUTE 2001 Plano Parkway Suite 1600 Plano, TX Telephone: ( jmateer@libertyinstitute.org rbyron@libertyinstitute.org Counsel for Movant-Intervenors The American Legion, The American Legion Department of Maryland, and The American Legion Colmar Manor Post

13 Case 8:14-cv DKC Document 15 Filed 05/01/14 Page 13 of 13 CERTIFICATE OF SERVICE I hereby certify that on this 1st day of May, 2014, I caused the foregoing to be electronically filed with the Clerk of Court using the CM/ECF system, causing it to be served on all registered users. Respectfully submitted, /s/ Christopher DiPompeo Christopher DiPompeo (Fed. Bar. No JONES DAY 51 Louisiana Avenue, N.W. Washington, DC Telephone: ( Facsimile: ( cdipompeo@jonesday.com Counsel for Movant-Intervenors The American Legion, The American Legion Department of Maryland, and The American Legion Colmar Manor Post