Ellis v. City of La Mesa, s. 92-55086
| Decision Date | 23 March 1993 |
| Docket Number | Nos. 92-55086,92-55087 and 92-55093,s. 92-55086 |
| Citation | 990 F.2d 1518 |
| Parties | James ELLIS, Plaintiff-Appellee, v. CITY OF LA MESA, et al., Defendants-Appellants. Philip PAULSON, Howard T. Kreisner & Society of Separationists, Inc., Plaintiffs-Appellees, v. CITY OF SAN DIEGO, Defendant-Appellant. John MURPHY, Plaintiff-Appellee, v. Brian BILBRAY, George Bailey, Susan Golding, Leon Williams, and John MacDonald, in their official capacities as members of San Diego County Board of Supervisors and the County of San Diego, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Mary Kay Jackson, Deputy City Atty., San Diego, CA, for defendants-appellants.
John S. Meyer, Knutson & Meyer, La Mesa, CA, for defendants-appellants.
Michel B. Poynor, Deputy County Counsel, San Diego, CA, for defendants-appellants.
Marcellee E. Mihaila, Gray, Cary, Ames & Frye, San Diego, CA, amicus curiae Mt. Soledad Memorial Ass'n, for defendants-appellants.
Arlington Ray Robbins, Robbins & Keehn, APC, San Diego, CA, amicus curiae In Pro Se, for defendants-appellants.
Anthony Caso, Pacific Legal Foundation, Sacramento, CA, amicus curiae Pacific Legal Foundation, for defendants-appellants.
Thomas F. Gede, Special Asst. Atty. Gen., Sacramento, CA, amicus curiae State of Cal., for defendants-appellants.
John L. Romaker, San Diego, CA, Amicus Curiae Committee to Save the Crosses, an unincorporated Ass'n, and the San Diego County Republican Party, for defendants-appellants.
Keith A. Fournier, Virginia Beach, VA, amicus curiae American Center for Law & Justice, for defendants-appellants.
John W. Vinson, Society of Separationists, Inc., Austin, TX, for plaintiff-appellee.
Michael L. Crowley, Betty Wheeler, American Civil Liberties Foundation of San Diego & Imperial Counties, San Diego, CA, for plaintiff-appellee.
Dan Bacal, El Cajon, CA, for plaintiff-appellee.
David Ira Berman, San Diego, CA, amicus curiae Anti Defamation League of B'Nai B'rith, for plaintiffs-appellees.
Steven Green, Silver Springs, MD, amicus curiae Americans United For Separation of Church and State, for plaintiff-appellee.
Peter Irons, Earl Warren Bill of Rights Project, San Diego, CA, for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of California.
Before: TANG, SCHROEDER and BEEZER, Circuit Judges.
We consider three crosses. A 36-foot cross stands atop Mt. Helix in a county park. Another hilltop cross, the 43-foot Mt. Soledad Cross, stands in a city park. The third cross, a depiction of the Mt. Helix Cross, provides the focal point for one of the City of La Mesa's official insignia.
As to each, a lawsuit ensued. After consolidating the cases, the district court heard motions and cross-motions for summary judgment. Relying primarily on Hewitt v. Joyner, 940 F.2d 1561 (9th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 969, 117 L.Ed.2d 134 (1992), the court concluded that the crosses' permanent presence on public property violates the No Preference Clause of California's Constitution. The court entered summary judgment in favor of the plaintiffs and issued "a permanent injunction forbidding the permanent presence of each cross on the public property or imprimatur where it currently appears." The government entities timely appealed. We affirm.
In the mid-1920's, Cyrus Carpenter Yawkey and Mary Yawkey White placed a 36-foot Latin cross 1 on the summit of Mount Helix on privately owned land. The cross was erected as a memorial to Mary Carpenter Yawkey. Mt. Helix is one of the highest hills in San Diego County, and the cross is visible from a substantial distance. The cross also serves pilots as a navigational aid.
In 1929, Yawkey conveyed about 3.2 acres, including the cross and an amphitheatre, to San Diego County for uses and purposes specified in the deed. This county park is known as the Mt. Helix Nature Theatre. The conveyance obligates the County to maintain the cross, allows no other monuments to be erected in the park, and requires that "annually, on each and every Easter Sunday forever, religious services of a strictly non-sectarian character and appropriately suitable for commemorating the resurrection of the Lord Jesus Christ, as taught by the Christian churches of the world, shall be held at Sunrise" at the park. Although an Easter sunrise service has been held in the park every year since, the County stresses that it never enforced this provision against an applicant desiring to use the park for an alternative purpose on Easter morning.
The deed also established a trust fund, with the County as trustee, to maintain the cross and to contribute towards the Easter celebration. County employees administer the trust fund. Public funds contribute to the maintenance of the Nature Theatre as a whole.
The deed further requires that "[t]he Cross on the summit of Mount Helix shall be lighted" on several specific nights each year, including Christmas Eve and the evening before Easter. The County illuminates the cross every night of the year; the trust fund currently pays for the lighting, but county funds had been used for this purpose in the past.
Subsequent to the filing of this case, the County Board of Supervisors designated the Mt. Helix Nature Theatre and the cross within it as a historical landmark.
In 1913, private citizens placed a redwood cross atop Mount Soledad on a 170-acre parcel of land owned by the City of San Diego. The city council dedicated the property as a public park in 1916. Vandals destroyed the redwood cross in 1923; someone replaced it with a wood and stucco cross in 1934. A wind storm destroyed that cross in 1952. Subsequently, the city council granted permission to the Mt. Soledad Memorial Association, a private organization, to place another cross on Mt. Soledad. The Association solicited private contributions and, without municipal funding, supervised and paid for the construction of the current 43-foot concrete cross. On some maps and in the local parlance, it is known as the "Soledad Easter Cross." The Mt. Soledad and Mt. Helix crosses have both provided a backdrop for weddings and baptisms.
The Soledad Cross can be seen from a substantial distance, including a portion of the interstate highway. The district court's summary judgment order states that the cross functions as the most important geodetic marker in San Diego County.
In 1954, at an Easter Sunday religious service, the cross was dedicated as a tribute to veterans of World War I, World War II and the Korean Conflict. The Association maintains the cross and, since its dedication, obtains a permit each year to conduct a sunrise service on Easter Morning. Although primarily maintained through private funds, the district court found some public funds have been expended to maintain the cross. 2 Since the filing of this action, veterans groups have held secular remembrance ceremonies at the site.
In its summary judgment order, the district court erroneously stated that the Mt. Soledad Cross, like the Mt. Helix Cross, is illuminated nightly. The parties agree that the Mt. Soledad Cross used to be illuminated, but that the practice ended after vandals repeatedly broke the lights.
On January 30, 1991, after this action was filed, the City of San Diego Historical Site Board designated the cross and the surrounding park as historical sites.
The City of La Mesa's official insignia depicts a cross atop the highest of several hills, in the center of the design, between two clouds. The artist drew the cross several times larger than it would be if drawn to scale. As found by the district court, the insignia was chosen not because it incorporates a religious image, but rather because it depicts the prominent, identifying landmark for the city known as "The Jewel of the Hills."
At the time of this lawsuit, the insignia appeared on police vehicles and on the shoulder patches attached to police, fire fighter, and animal control personnel uniforms, and was used in official literature distributed by the city. The city maintains an official seal which does not depict a cross.
Appellants argue that the district court should have exercised abstention pursuant to the doctrine announced in Texas Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). We review the district court's refusal to abstain for an abuse of discretion. Almodovar v. Reiner, 832 F.2d 1138, 1140 (9th Cir.1987).
Pullman abstention is appropriate where the state's constitution contains a provision unlike any in the federal constitution and state court construction of its unclear or ambiguous clause might make a federal ruling unnecessary. Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970) ().
Appellants argue that the California courts' interpretation of the state constitution's religion provisions remains unclear or, if relatively clear, poised for change. See Pearl Inv. Co. v. City and County of San Francisco, 774 F.2d 1460, 1465 (9th Cir.1985) () (citation omitted), cert. denied, 476 U.S. 1170, 106 S.Ct. 2891, 90 L.Ed.2d 978 (1986).
The legal landscape presented here differs dramatically from that presented in Reetz by Alaska's unique and uninterpreted constitutional provisions regarding fishing rights. Here, we have interpretive caselaw. See Fox v. City of Los Angeles, 22 Cal.3d 792, 150 Cal.Rptr. 867, 587 P.2d 663 (1978) ( California Constitution's...
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