Hewitt v. Joyner

• Decision Date: 06 February 1989
• Docket Number: No. CV 87-7605 DWW (JRx).,CV 87-7605 DWW (JRx).
• Citation: 705 F. Supp. 1443
• Court: U.S. District Court — Central District of California
• Parties: Ruby HEWITT; Ralph Winant; Jerry Weitman; Darrell Barker and Dennis Molloy, Plaintiffs, v. John JOYNER; Robert Hammock; Jon D. Mikels; Barbara Riordan; and Larry Walker, in their official capacities as members of the San Bernardino County Board of Supervisors; Yucca Valley Parks and Recreation District, Defendants.

705 F. Supp. 1443

Ruby HEWITT; Ralph Winant; Jerry Weitman; Darrell Barker and Dennis Molloy, Plaintiffs, v. John JOYNER; Robert Hammock; Jon D. Mikels; Barbara Riordan; and Larry Walker, in their official capacities as members of the San Bernardino County Board of Supervisors; Yucca Valley Parks and Recreation District, Defendants.

No. CV 87-7605 DWW (JRx).

United States District Court, C.D. California.

February 6, 1989.

Carol A. Sobel and John Hagar of the ACLU Foundation, Los Angeles, Cal., for plaintiffs.

David L. Llewellyn, Jr., Santa Ana, Cal., for defendants.

MEMORANDUM OPINION

DAVID W. WILLIAMS, District Judge.

This civil rights action, brought under 42 U.S.C. section 1983, came on for trial before the court sitting without a jury on January 24, 1989. Carol A. Sobel and John Hagar of the ACLU Foundation of Southern California, seeking declaratory and injunctive relief, appeared for plaintiffs. David L. Llewellyn Jr. appeared for defendants. The court heard witnesses for both sides, received documentary evidence and heard arguments of counsel. Thereafter, the matter was taken under submission.

FACTS OF THE CASE

This suit challenges the constitutionality of the County of San Bernardino's owning and maintaining with public funds, a 3.5 acre public park located in Yucca Valley California, because the park features a collection of biblical statuary. The park was originally owned by Antone Martin, a sculptor, who lived on the park site from 1953 until his death in 1961. He devoted all those years to the creation of white concrete statuary depicting various biblical scenes. The collection consists of 36 statues and tableaus which are scattered among the indigenous Joshua trees and cottonwoods and was intended as describing the life of Christ. The sculptor attempted to create scenes as they may have been enacted two thousand years ago. Antone Martin dedicated the collection of statues as a World Peace Shrine portraying the artist's concept of peace on earth and good will toward men.

The statues, which were created on the site, are made of solid concrete and were given triangular bracing extending down into a block of cement underground, thus firmly anchoring the entire work. The statues weigh from 4 to 16 tons each, except for the Last Supper facade, which is estimated to weigh 125 tons. The park is nestled on a slope of a desert hillside, and the statues are arranged in several groupings which permit visitors to walk in the area and enjoy the scenes as if in an outdoor museum.

When Antone Martin died, his heirs donated the property to the County by a deed which contained the condition that it be maintained with the biblical statuary. The deed contained a reversionary clause. Since 1961, the County has maintained the property as a public park, which is open 24 hours a day. The public may visit without an admission charge. Picnic tables are available for use without reservation.

From time to time, there were persons who complained about the use of public money to maintain the park. In an effort to mollify such persons, the Board of Supervisors caused a fence to be erected between the park and a church that was located on the adjoining property (but which had no connection with the park site), and changed the name of the park from Desert Christ Park to the Antone Martin Memorial Park. A sign was erected disclaiming any intention to maintain the park for religious purposes. No meetings of any kind, religious or otherwise, are held in the park and it is open for the enjoyment of all persons who may want to use the area.

The plaintiffs in the present action all claim to be residents and citizens of the County of San Bernardino. They allege that they have lost a beneficial right to use and enjoy the park because of their objections to its public ownership. Hewitt professed to being a Christian. Winant and Barker state that they are atheists; Weitzman said he is of the Jewish faith and Molloy claimed to be an agnostic. All claim to be offended whenever they desire to visit and utilize the park's facilities because they assert that the park is dedicated solely to religious themes. (Molloy and Barker submitted declarations and testified at trial for the plaintiffs.)

Jurisdiction is conferred on the court by 28 U.S.C. section 1331, which provides for original jurisdiction over federal questions, by 28 U.S.C. sections 2201 and 2202 of the Declaratory Judgment Act, and 28 U.S.C. section 1343, which provides for federal jurisdiction in actions authorized by 42 U.S.C. section 1983.

ISSUE

The issue before the court is whether the ownership and maintenance by the County of San Bernardino of a public park containing a collection of permanent statuary depicting replicas of New Testament figures violates the establishment clause of the First Amendment to the United States Constitution and the parallel provisions of the California Constitution?

In analyzing this issue, the threshold question for the court is whether plaintiffs have stated a concrete and palpable injury for purposes of standing. Second, after placing into context the historical complexities surrounding analysis of the establishment clause, the tripartite test utilized in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), shall be applied. Lastly, the court shall examine pendant state claims alleging violations of the California Constitution.

STANDING

Article III of the Constitution limits the judicial power of the United States to the resolution of cases or controversies. Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). In order to satisfy the "case or controversy" requirement, a litigant must have standing to challenge the action sought to be adjudicated in the lawsuit. Id.; Freedom From Religion Foundation, Inc., v. Zielke, 845 F.2d 1463, 1467 (7th Cir.1988). The concept of standing subsumes a blend of constitutional requirements and prudential considerations. Valley Forge, 454 U.S. at 471, 102 S.Ct. at 758.

At a minimum, Article III of the United State Constitution requires that the litigant satisfy three requirements: (1) he must have suffered personally an actual or threatened injury in fact; (2) the injury must be a result of the defendant's action; and (3) the injury must be redressable by a judicial decision. Id. at 472, 102 S.Ct. at 758.

The court will first address the primary issue of whether or not plaintiffs have Article III standing by focusing on whether plaintiffs have suffered an injury in fact.

As long as a plaintiff alleges the existence of a distinct palpable injury, even a minor injury can satisfy the case or controversy requirement of Article III. Valley Forge, 454 U.S. at 473, 102 S.Ct. at 759; Freedom From Religion Foundation, 845 F.2d at 1467. A concrete injury in establishment clause cases has been found where a curtailment of rights to use public areas has been alleged. See ACLU of Illinois v. City of St. Charles, 794 F.2d 265, 267-269 (7th Cir.1986), cert. denied, 479 U.S. 961, 107 S.Ct. 458, 93 L.Ed.2d 403 (1986). In the instant case, plaintiffs Darrell Barker and Dennis Molloy both claim to have had their rights to use a public area curtailed.

Barker, an atheist, finds the park's religious content so disturbing that he refuses to use the public park and avoids driving past it when his work requires that he be in the area. Molloy, an agnostic, frequently uses county parks for his family's recreation, but will not use this park because of the statuary.

Both Barker and Molloy state more than psychological injury in that they had to physically change their normal routine and essentially were denied access to a public area because of their strong disapproval of the religious statuary. Both plaintiffs have therefore, alleged palpable injuries capable of being redressed by the court for purposes of standing. See St. Charles, 794 F.2d 265 (standing found where plaintiffs were so offended by a lighted cross so as to depart from their accustomed route of travel to avoid it); ACLU of Georgia v. Rabun County, etc., 698 F.2d 1098 (11th Cir.1983) (standing found where lighted cross viewable from state parks caused plaintiff campers to refuse to use the parks).

Also, as county taxpayers, plaintiffs have standing to bring this equitable action. See Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923) ("Resident taxpayers may sue to enjoin an illegal use of the moneys of a municipal corporation.") Defendants contend that plaintiffs have not properly traced their tax dollars to the County's Park and Recreation District. Since general funds were used as a portion of the district budget, however, a clear inference exists that at least a proportionate share of plaintiffs' taxes pay for the park's upkeep.

ESTABLISHMENT CLAUSE

The First Amendment to the United States Constitution declares that "Congress shall make no law respecting an establishment of religion...." The establishment clause has been interpreted by Justice Black in Everson v. Board of Education, thusly:

"The establishment of religion clause of the First Amendment means as least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.... In the words of Jefferson, the clause against establishment of religion was intended to erect a wall of separation between church and state." 330 U.S. 1, 15, 16, 67 S.Ct. 504, 512, 91 L.Ed. 711 (1947)¹

The origin of our country is intertwined with that of religion. This historical truth, along with present day religious diversity and pluralism, has placed strains on the concept of a mythical wall separating church and state.

In 1971, Chief Justice Burger, writing for the majority, acknowledged this strain, stating that the Court's "prior holdings do not call for total...