Evans v. City of Berkeley, No. S112621.

CourtUnited States State Supreme Court (California)
Writing for the CourtWerdegar
Citation40 Cal.Rptr.3d 205,129 P.3d 394
PartiesEugene EVANS et al., Plaintiffs and Appellants, v. CITY OF BERKELEY et al., Defendants and Respondents.
Decision Date09 March 2006
Docket NumberNo. S112621.
129 P.3d 394
40 Cal.Rptr.3d 205
Eugene EVANS et al., Plaintiffs and Appellants,
CITY OF BERKELEY et al., Defendants and Respondents.
No. S112621.
Supreme Court of California.
March 9, 2006.

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Law Offices of Jonathan D. Gordon and Jonathan D. Gordon, Pleasant Hill, for Plaintiffs and Appellants.

Pacific Legal Foundation, John H. Findley and Harold E. Johnson, Sacramento, for Plaintiff and Appellant Tonatiuh Alvarez.

John H. Findley and Harold E. Johnson, Sacramento, for Pacific Legal Foundation as Amicus Curiae on behalf of Plaintiffs and Appellants.

Brad W. Dacus, and Roger G. Ho, Irvine, for Pacific Justice Institute as Amicus Curiae on behalf of Plaintiffs and Appellants.

Bartko, Zankel, Tarrant & Miller, William I. Edlund, San Francisco, Ramiz I. Rafeedie; and Andrew W. Fortin, for California State Club Association and National Club Association as Amicus Curiae on behalf of Plaintiffs and Appellants.

Eric R. Carleson, for American Civil Rights Union as Amicus Curiae on behalf of Plaintiffs and Appellants.

Hughes Hubbard & Reed, William T. Bisset, Los Angeles, George A. Davidson and Carla A. Kerr, for Boy Scouts of America as Amicus Curiae on behalf of Plaintiffs and Appellants.

Kirton & McConkie and Alexander Dushku, for The Church of Christ of Latter-Day Saints, National Catholic Committee on Scouting, Orestimba Presbyterian Church and Hope Chapel Christian Fellowship as Amicus Curiae on behalf of Plaintiffs and Appellants.

Sweeney & Greene, James F. Sweeney, Sacramento, and Eric Grant, for California Catholic Conference as Amicus Curiae on behalf of Plaintiffs and Appellants.

Manuela Albuquerque, City Attorney, Matthew J. Orebic and Laura McKinney, Deputy City Attorneys, for Defendants and Respondents.

Munger, Tolles & Olson, Jerome C. Roth, Ailsa W. Chang, San Francisco; and Jon W. Davidson, for Bay Area Lawyers for Individual Freedom and Lambda Legal Defense and Education Fund, Inc., as Amici on behalf of Defendants and Respondents.

Dennis J. Herrera, City Attorney, Therese Stewart, Burke Delventhal and Ellen Forman, Deputy City Attorneys, for City and County of San Francisco, California League of Cities and California State Association of Counties, as Amici Curiae on behalf of Defendants and Respondents.

Heller Ehrman White & McAuliffe, Warrington S. Parker III, San Francisco; Miranda D. Junowicz and Oren, Woodland, for Anti-Defamation League and Lawyers' Committee for Civil Rights of the San Francisco Bay Area as Amicus on behalf of Defendants and Respondents.

Morrison & Foerster, Mark W. Danis, M. Andrew Woodmansee, San Diego; Jordan C. Budd, Watson Branch; Martha Matthews, Los Angeles; and Margaret C. Crosby, for ACLU Foundation of San Diego and Imperial Counties, ACLU Foundation of Southern California and ACLU Foundation of Northern California as Amici on behalf of Defendants and Respondents.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Richard M. Frank, Chief Assistant Attorney General, Louis Verdugo, Jr., Assistant Attorney General, Suzanne M. Ambrose and Timothy M. Muscat, Deputy Attorneys General, as Amicus on behalf of Defendants and Respondents.


A city requested that a volunteer youth group affiliated with the Boy Scouts of America, in order to qualify for continued free use of berths in the city's marina, provide written assurance the group would not discriminate against homosexuals or atheists wishing to participate in the group's program. The city, deeming the policy statement the group provided

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ambiguous and therefore insufficient, discontinued its subsidy. Members of the group sued, claiming, among other things, that the city's action violated their freedoms of speech and association. The trial court sustained the city's demurrer, and the Court of Appeal affirmed. We conclude the Court of Appeal correctly determined that the complaint does not establish a violation of plaintiffs' constitutional rights and affirm the lower court's judgment.


Because this case comes to us on a demurrer for failure to state a cause of action, we accept as true the well-pleaded allegations in plaintiffs' first amended complaint. "`We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' (Serrano v. Priest (1971) 5 Cal.3d 584, 591 [96 Cal.Rptr. 601, 487 P.2d 1241, 41 A.L.R.3d 1187].) Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 42 [172 P.2d 867].)" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.) "`[A] complaint otherwise good on its face is subject to demurrer when facts judicially noticed render it defective.' [Citation.]" (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374, 228 Cal.Rptr. 878; see Code Civ. Proc., § 430.30, subd. (a).) The following facts appear from the allegations of the complaint and from judicially noticeable sources.

Plaintiffs are 14 individual adult and youth participants in the Berkeley Sea Scouts, suing for themselves and other program participants. The Berkeley Sea Scouts (Sea Scouts) are volunteers joining together in a nonprofit association with no formal administrative structure, no budget, and no employees. Adults, including some of the named plaintiffs, use Sea Scout vessels to teach sailing, seamanship, marine engine repair, electrical repair, woodworking, and other skills for a maritime career, as well as teamwork, to teenagers who pay no more than $7 a year to participate. Ethnic diversity is a hallmark of the Sea Scouts, and many youth participants are economically disadvantaged. Girls as well as boys participate, and the Sea Scouts have never actually discriminated against anyone on the basis of sexual orientation or religion.

According to the operative complaint, the Sea Scouts are "a subdivision of," or "associated/affiliated with," the national Boy Scouts of America (BSA). The Sea Scouts operate under what the complaint describes as BSA's "regional office," the Mount Diablo Council. Each Sea Scout "ship" functions as the equivalent of a Boy Scout troop. BSA provides the group with a low-cost maritime liability insurance policy but gives it no direct funding. BSA, according to the complaint, follows a "policy of discriminating against homosexuals' and atheists' participation."1

In the late 1930's, Berkeley began giving BSA one or more free berths at its marina for use by the Sea Scouts, after the Mount Diablo Council permitted Berkeley to quarry rock from BSA property to build the marina and breakwater. The arrangement was formalized by city resolutions in 1945 and 1969 that required compliance with marina rules and regulations and allowed revocation on 30 days' written notice.

In March 1997, in response to requests from other nonprofit organizations for free berths, the city manager recommended and the Berkeley City Council adopted through resolution No. 58,859-N.S. (Resolution 58,859) a uniform policy for awarding free berths to nonprofit community service organizations.2 Under the resolution, an organization

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seeking free berth space must "supply a beneficial public service," the benefit of which "greatly exceeds the value of the berth." The organization also must "demonstrate," through "[m]embership policy and practices," among other criteria, that it "promote[s] cultural and ethnic diversity." Resolution 58,859 goes on to specify that access to marina facilities may "not be predicated on a person's race, color, religion, ethnicity, national origin, age, sex, sexual orientation, marital status, political affiliation, disability or medical condition." The resolution provides for the Berkeley Waterfront Commission (Waterfront Commission) to review applications and make recommendations to the city council. Organizations receiving berthing subsidies are to have those subsidies reviewed annually by the city council after a review and recommendation by the Waterfront Commission.

The continued provision of free marina berths to the Sea Scouts came up for review in the Waterfront Commission in early 1998. The commission expressed concern that BSA's policy of discrimination against homosexuals and atheists was in conflict with Resolution 58,859 and asked the Sea Scouts to provide a "local policy statement" ensuring nondiscrimination. The Sea Scouts, in negotiation with the Mount Diablo Council, approved a policy statement intended to satisfy Berkeley's requirements. In a letter to the waterfront manager, dated April 8, 1998, the Sea Scouts stated: "We will continue to comply with the Constitution of the United States of America, the laws of the State of California and the Berkeley Municipal Code—including Section 13.28.060 and City Council Resolution No. 58,85[9], N.S. [¶] . . . We actively recruit adult leaders and adolescents meeting the minimum age requirements without regard to sex, race, color, national origin, political affiliation, religious preference, marital status, physical handicap or medical condition. We believe that sexual orientation is a private matter, and we do not ask either adults or youths to divulge this information at any time."3

The Waterfront Commission recommended the city council continue the Sea Scouts' free berths. The city manager, however, recommended the council discontinue the free berths, based on an opinion by the city attorney concluding that continuation of the free berth subsidy to the Sea Scouts would violate both Resolution 58,859 and section 13.28.060 of the Berkeley Municipal Code, which prohibits discrimination based on sexual orientation in the use of city owned or supported facilities and services.4

In her opinion, which was provided to...

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