Vasquez v. Los Angeles ("La") County

• Decision Date: 15 May 2007
• Docket Number: No. 04-56973.,04-56973.
• Citation: 487 F.3d 1246
• Parties: Ernesto R. VASQUEZ, Plaintiff-Appellant, v. LOS ANGELES ("LA") COUNTY; Don Knabe, in his official capacity as a Supervisor, LA County; Gloria Molina, in her official capacity as a Supervisor, LA County; Yvonne B. Burke, in her official capacity as a Supervisor, LA County; Zev Yaroslavsky, in his official capacity as a Supervisor, LA County; and Michael D. Antonovich, in his official capacity as a Supervisor, LA County, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

487 F.3d 1246

Ernesto R. VASQUEZ, Plaintiff-Appellant, v.LOS ANGELES ("LA") COUNTY; Don Knabe, in his official capacity as a Supervisor, LA County; Gloria Molina, in her official capacity as a Supervisor, LA County; Yvonne B. Burke, in her official capacity as a Supervisor, LA County; Zev Yaroslavsky, in his official capacity as a Supervisor, LA County; and Michael D. Antonovich, in his official capacity as a Supervisor, LA County, Defendants-Appellees.

No. 04-56973.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 17, 2006.

Filed May 15, 2007.

Robert J. Muise(argued), Edward L. White III, Thomas More Law Center, Ann Arbor, MI, for the appellant.

Raymond G. Fortner, Jr., County Counsel; Gary N. Miller, Assistant County Counsel; Jennifer A.D. Lehman(argued), Deputy County Counsel, Office of the County Counsel, Los Angeles, CA, for the appellees.

John C. Eastman and Manuel S. Klausner, for amici curiae the Claremont Institute Center for Constitutional Jurisprudence, Orange, CA, and the Individual Rights Foundation, Los Angeles, CA.

Appeal from the United States District Court for the Central District of California; S. James Otero, District Judge, Presiding.D.C. No. CV-04-04010-SJO.

Before: HARRY PREGERSON, RONALD M. GOULD, and RICHARD R. CLIFTON, Circuit Judges.

CLIFTON, Circuit Judge.

Plaintiff-AppellantErnesto R. Vasquez appeals the district court's dismissal of his 42 U.S.C. § 1983 action for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).Vasquez alleges that Defendants, the County of Los Angeles("LA County") and the members of the LA County Board of Supervisors, violated the Establishment Clause of the First Amendment by removing the image of a cross from the county's official seal.Specifically, Vasquez alleges that Defendants' removal of the cross from the seal conveyed a state-sponsored message of hostility toward Christians.Because we conclude that Defendants did not violate the Establishment Clause, we affirm the district court's order dismissing Vasquez's complaint with prejudice.

I.BACKGROUND

According to Vasquez's briefs and the record, the version of the LA County Seal that included the image of the cross was first adopted on January 2, 1957, and contained "symbols of historical and cultural significance."¹In addition to the cross, which represented the "influence of the church and the missions of California," the seal also depicted the Roman Goddess Pomona,² engineering instruments, the Spanish galleon San Salvador, a tuna, a cow, the Hollywood Bowl, two stars (representing the county's motion picture and television industries), and oil derricks.A black and white image of the 1957 seal is attached as Appendix A to this opinion.

In 2004, Defendants revised the seal.First, Defendants removed the cross from the seal and substituted the image of Mission San Gabriel, the first mission established in the county.³Second, Defendants replaced the image of Pomona with that of a Native American woman holding a basket.Third, Defendants deleted the image of the oil derricks altogether.A black and white image of the 2004 seal is attached as Appendix B to this opinion.

According to Defendants, their decision to remove the cross from the seal was motivated by a desire to "avoid a potential Establishment Clause violation . . . and[to] affirm [the county's] neutrality."Plaintiff Vasquez contends, however, that Defendants' decision to remove the cross was motivated by their disapproval of, and hostility toward, the Christian religion.He further alleges that Defendants' decision to remove the cross was improperly influenced by the American Civil Liberties Union, which had threatened to sue Defendants over the presence of the cross on the seal as an impermissible preference for Christianity.

Vasquez is a resident and employee of LA County, and he identifies himself as a "devout Christian."On June 4, 2004, Vasquez filed this action against LA County and the members of the LA County Board of Supervisors, seeking relief under the Establishment Clause of the First Amendment, as applied to the states through the Fourteenth Amendment.Defendants promptly filed a Rule 12(b)(6) motion to dismiss Vasquez's complaint for failure to state a claim for which relief can be granted.Before the district court ruled on Defendants' motion, Vasquez filed a First Amended Complaint.In the amended complaint, Vasquez alleged that Defendants' act in "singling out the cross for removal from the LA County Seal" conveyed a state-sponsored message of hostility towards Christians and sent a clear message to Christians that they were outsiders not full members of the political community.Vasquez claimed that he was injured by Defendants' conduct because he had "daily contact" with the revised seal and was forced to "alter his behavior to avoid this direct injury."For relief, Vasquez requested that the district court: (1) enjoin Defendants' removal of the cross from the seal; (2) issue a declaratory judgment holding Defendants' removal of the cross from the seal to be unconstitutional; and (3) uphold the constitutionality of the 1957 version of the seal containing the cross.Defendants responded with a second Rule 12(b)(6) motion.

The district court granted Defendants' motion and dismissed Vasquez's complaint without leave to amend on October 19, 2004.According to the district court, Vasquez's complaint failed to state a claim for which relief can be granted because: (1) Vasquez did not have standing to bring the Establishment Clause challenge; (2)Defendants' substitution of the cross with the mission rendered Vasquez's Establishment Clause challenge moot; and (3) the substance of Vasquez's Establishment Clause challenge lacked merit.

Vasquez timely appealed the district court's order of dismissal.

II.DISCUSSION

We review de novothe district court's dismissal of a complaint for failure to state a claim under Rule 12(b)(6).Zimmerman v. City of Oakland,255 F.3d 734, 737(9th Cir.2001).In reviewing such a motion, we accept all material allegations of fact as true and construe the complaint in a light most favorable to the non-moving party.We have consistently emphasized, however, that "conclusory allegations of law and unwarranted inferences" will not defeat an otherwise proper motion to dismiss.See Schmier v. U.S. Court of Appeals for the Ninth Circuit,279 F.3d 817, 820(9th Cir.2002)(internal citation and quotation marks omitted).Dismissal for failure to state a claim is appropriate only "if it appears beyond doubt that the [non-moving party] can prove no set of facts in support of his claim which would entitle him to relief."Zimmerman,255 F.3d at 737(internal citation and quotation marks omitted).

A.Standing

We begin our review with the district court's holding that Vasquez lacked standing to bring this Establishment Clause challenge.Standing is a question of law and we review de novo.Bernhardt v. County of Los Angeles,279 F.3d 862, 867(9th Cir.2002).A party has standing if: (1)he suffers an "injury in fact"; (2) the injury is "fairly traceable" to the challenged conduct; and (3) the injury is likely to be redressed by a favorable judicial decision.Buono v. Norton,371 F.3d 543, 546(9th Cir.2004);see alsoLujan v. Defenders of Wildlife,504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351(1992).

Vasquez asserts two bases for standing.First, he claims he was forced to have daily contact with the revised seal, presumably because he was a resident and employee of LA County.The injury resulting from such contact, Vasquez argues, is sufficiently "concrete and particularized" to confer Article III standing.⁴SeeLujan,504 U.S. at 560, 112 S.Ct. 2130;Bernhardt,279 F.3d at 868-69.Alternatively, Vasquez asserts standing as a county taxpayer.We hold that Vasquez has standing because he has alleged a legally cognizable injury arising out of his frequent regular contact with the revised county seal.Consequently, we do not reach the merits of Vasquez's taxpayer standing argument.

Whether frequent regular contact with an allegedly offensive religious symbol — or, in this case, an allegedly offensive anti-religious symbol — can give rise to a legally cognizable injury is an open question in this circuit.In prior cases, we have held plaintiffs' affirmative avoidance of areas where such symbols are located to be sufficient to confer standing.For example, in Buono v. Norton,371 F.3d 543(9th Cir.2004), a plaintiff who "regularly visited" the Mojave National Preserve sought to obtain an injunction for the removal of a cross located upon a tract of federally owned land in the Preserve.Id. at 544, 546.He claimed that he had standing because he was "deeply offended" by the public display of the cross on government property and, as a result, tended to avoid the area where the cross was located.Seeid. at 546-47.We held that defendant's allegedly unconstitutional conduct had impaired plaintiff's ability to "freely" and "unreservedly use public land," and that this impairment constituted an injury in fact sufficient to confer Article III standing.Seeid. at 547-48;see alsoSeparation of Church & State Comm. v. City of Eugene,93 F.3d 617, 619 n. 2(9th Cir.1996)(plaintiffs established injury in fact when "they alleged that the cross [on public land] prevented them from freely using" the public park at issue);Ellis v. City of La Mesa,990 F.2d 1518, 1523(9th Cir.1993), cert. denied sub nom., San Diego County v. Murphy,512 U.S. 1220, 114 S.Ct. 2707, 129 L.Ed.2d 834(1994)(plaintiffs established injury in fact when they alleged they were not "able to freely use the public areas" due to the presence of a cross on public land);Kreisner v. City of San Diego,1 F.3d 775, 778 n. 1(9th Cir.1993), cert. denied,510 U.S. 1044, 114 S.Ct. 690, 126 L.Ed.2d 657(1994)(accord);Hewitt v. Joyner,940 F.2d 1561, 1564-65(9th Cir.1991)...