Hewitt v. Joyner

• Decision Date: 31 July 1991
• Docket Number: No. 89-55199,89-55199
• Citation: 940 F.2d 1561
• Parties: Ruby HEWITT; Ralph Winant; Jerry Weitzman; Darrell Barker and Dennis Molloy, Plaintiffs-Appellants, v. John JOYNER; Robert L. Hammock; Jon D. Mikels; Barbara C. 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-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1561

940 F.2d 1561

Ruby HEWITT; Ralph Winant; Jerry Weitzman; Darrell Barker and Dennis Molloy, Plaintiffs-Appellants, v. John JOYNER; Robert L. Hammock; Jon D. Mikels; Barbara C.

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-Appellees.

No. 89-55199.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 6, 1990.

Decided July 31, 1991.

Carol A. Sobel, ACLU Foundation of Southern Cal., Los Angeles, Cal., for plaintiffs-appellants.

David L. Llewellyn, Jr., Sacramento, Cal., for defendants-appellees.

Douglas E. Mirell, Los Angeles, Cal., for amicus curiae American Jewish Congress.

Daron L. Tooch, Los Angeles, Cal., for amicus curiae Anti-Defamation League of B'nai B'rith.

Appeal from the United States District Court for the Central District of California.

Before FERGUSON, NORRIS and THOMPSON, Circuit Judges.

FERGUSON, Circuit Judge:

Plaintiffs-appellants, five residents of San Bernardino County, appeal the district court's judgment in favor of the defendants-appellees after a one-day bench trial. The defendants are the Yucca Valley Parks and Recreation District and members of the San Bernardino County Board of Supervisors. ¹

1] The plaintiffs sought declaratory and injunctive relief, contending that the County's ownership and maintenance of a public park containing exclusively immovable religious statuary depicting scenes from the New Testament violate the Establishment Clause of the first amendment of the United States Constitution and analogous provisions of the California Constitution. We hold that the district court erred in finding that the County's ownership of the park does not violate the California Constitution, and reverse. We do not adjudicate the federal issues.

I.

San Bernardino County currently owns and maintains Antone Martin Memorial Park, a 3.5 acre park located in Yucca Valley, a county subdivision. The park contains 36 immovable statues and tableaus which are scattered among indigenous Joshua trees and cottonwoods. The statues are arranged in several groupings which depict the story of the life of Christ as told in the New Testament. They are made of solid concrete and are anchored to the ground by an underground block of cement. Each statue weighs from 4 to 16 tons, except for the Last Supper Facade, which is estimated to weigh 125 tons.

A brochure at the park states that the park was "[s]tarted in 1951 by the Reverend Eddie Garver, the 'Desert Parson' of Yucca Valley, with one huge statue depicting Christ." Antone Martin lived on the park site from 1953 until his death in 1961. During that time, he created the larger-than-life white concrete statuary representing various biblical scenes. ² Upon his death, his heirs donated the property to the County by a deed containing a reversionary clause requiring that the County preserve the biblical statuary at the park. Since 1961, the County has maintained the property as a public park.

After accepting the park, the County dedicated it as Desert Christ Park, printed brochures which identified each of the statuary scenes by reference to Bible passages, and put an ad in the telephone directory advertising the park as a "World Famous Theme Park ... depicting life of Christ." Picnic tables, parking and restrooms have been provided for the public's use. The Yucca Valley Parks and Recreation District is responsible for maintenance of the park, and spends $5,500 annually on the park. A portion of this money comes from the San Bernardino County General Fund.

The park property adjoins that of the Evangelical Free Church. Statues by Antone Martin are also located on church grounds and are described in the County's brochure as part of the park. ³ In fact, the largest of the park's statues, the Last Supper tableau, straddles the property line of the church and the park. A large cross located on church property overlooks the park from a hillside. Until this litigation was initiated, the County had made no effort to demarcate the park's property line. In addition to the official brochure, there are signs and plaques at the park to inform visitors about the statuary and its founder. ⁴

On November 12, 1987, the plaintiffs, all residents of San Bernardino County, filed a complaint against the County alleging its ownership and maintenance of the park violated the state and federal constitutions. Less than one week later, the County wrote to the pastor of the adjoining church explaining its proposed strategical response

to the suit. The County outlined four steps it would take to "blunt" this litigation:

1) rename and change the signs on the park to the Antone Martin Memorial Park; ⁵

2) construct a four-foot fence along the property line common to the park and the church;

3) provide more historical information at the park for visitors; and

4) rewrite the brochure to emphasize historical, instead of biblical, elements.

New signs were put up, a low chain-link fence was run along a portion of the park-church border, and a new brochure was printed. The new brochure eliminated direct citations to the Bible, but retained descriptions of the statuary, e.g., "Sermon on the Mount" and "Garden of Gethsemane." In fine print, the new brochure states:

Antone Martin was not a particularly religious man and was adamant that the park not be used for any religious purposes. According to those who knew him he picked biblical characters to sculpt as he felt they best portrayed the 'peace on earth' sentiment he was trying to impress on his fellow man.

At the time of trial, the phonebook ad remained unchanged.

The district court held a bench trial and heard testimony from six witnesses: the photographer that produced the plaintiffs' exhibits, two plaintiffs, two experts in religious studies, and the director of the Yucca Valley Parks and Recreation District. Both experts testified that the statues were distinctly religious symbols of the Protestant-Christian faith. Except for the park director, all of the witnesses stated that they perceived a religious message when they visited the park. No evidence was given regarding the circumstances surrounding the park's donation. Instead, the trial focused solely on the current condition of the property and the County's asserted secular purposes in owning the park.

In a published opinion, the district court ruled that the County's ownership and maintenance of the park did not violate the Establishment Clause of the federal constitution. Hewitt v. Joyner, 705 F.Supp. 1443, 1447-52 (C.D.Cal.1989). The court then summarily dismissed the plaintiffs' state constitutional claims on the grounds that the state constitution's provisions did not require a different result. Id. at 1452-53. The plaintiffs timely appealed the judgment against them.

II.

The district court found that the five plaintiffs, all residents of San Bernardino County, had standing to challenge the County's ownership and maintenance of the park. The court based this finding on two grounds. First, two of the plaintiffs demonstrated an injury in fact by the curtailment of their right to use a public park. Hewitt, 705 F.Supp. at 1445-46 (citing ACLU of Georgia v. Rabun County, 698 F.2d 1098 (11th Cir.1983)). Secondly, as county taxpayers, the plaintiffs had a right to challenge the constitutionality of the government's use of their tax monies. Id. at 1446 (citing Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923)). At trial, the plaintiffs testified that they paid local taxes and the director of the park district admitted that the district's budget was partially supported by the San Bernardino County General Fund.

We affirm the district court's determination that the plaintiffs have standing to challenge the County's ownership of the park. Other circuits have recognized that when a plaintiff alleges that the government has unconstitutionally aligned itself with religion, standing may be based on finding that the plaintiff has been injured due to his or her not being able to freely use public areas. See, e.g., ACLU of Illinois v. City of St. Charles, 794 F.2d 265, 267-269 (7th Cir.) (plaintiffs had standing when they were so offended by a government-owned cross that they departed from their usual route to avoid it), cert. denied, 479 U.S. 961, 107 S.Ct. 458, 93 L.Ed.2d 403

(1986); ACLU of Georgia v. Rabun County, 698 F.2d 1098, 1107-08 (11th Cir.1983) (standing found where plaintiffs stopped using state park which included an illuminated cross).

III.

The plaintiffs contend that the district court erred in its analysis of both their federal and state constitutional claims. It is well-established that this court should avoid adjudication of federal constitutional claims when alternative state grounds are available. Siler v. Louisville & Nashville R.R. Co., 213 U.S. 175, 193, 29 S.Ct. 451, 455-56, 53 L.Ed. 753 (1909). "[F]ederal constitutional issues should be avoided even when the alternative ground is one of state constitutional law." Carreras v. City of Anaheim, 768 F.2d 1039, 1042-43 (9th Cir.1985) (citations omitted). We find that the County's ownership of the park violates the California Constitution, and therefore we do not address the plaintiffs' federal constitutional claims.

A district court's interpretation of state law is reviewed de novo. Matter of McLinn, 739 F.2d 1395, 1397 (9th Cir.1984) (en banc). "When interpreting state law, a federal court is bound by the decision of the highest state court." In re Kirkland, 915 F.2d 1236, 1238 (9th Cir.1990) (citing Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir.1986), reh'g denied, op. modified, 810 F.2d 1517 (9th Cir.1987)). Although the California courts have never addressed the precise issues presented in this case, "[f]ederal courts are not precluded from affording relief simply because neither the state Supreme Court nor the...