Kreisner v. City of San Diego, Cal., 90-55354.

• Decision Date: 13 December 1991
• Docket Number: No. 90-55354.,90-55354.
• Citation: 788 F. Supp. 445
• Court: U.S. District Court — Southern District of California
• Parties: Howard T. KREISNER and the Society of Separationists, Inc. Plaintiffs, v. CITY OF SAN DIEGO, CALIFORNIA, Defendant.

788 F. Supp. 445

Howard T. KREISNER and the Society of Separationists, Inc. Plaintiffs, v. CITY OF SAN DIEGO, CALIFORNIA, Defendant.

No. 90-55354.

United States District Court, S.D. California.

December 13, 1991.

Michael A. Jacobs, San Francisco, Cal., for plaintiffs.

Mary Kay Jackson, Deputy City Atty., San Diego, Cal., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

HUFF, District Judge.

Plaintiff Howard Kreisner¹ brought this suit against the City of San Diego, alleging the City is violating the establishment clauses of the federal and state constitutions. The action involves the constitutionality of a display shown in the Organ Pavilion of Balboa Park during the month of December by a private organization, the Christmas Committee.

I STATEMENT OF PROCEEDINGS

Judge William B. Enright originally heard the case and granted the City's cross-motion for summary judgment in 1989. Judge Enright found the Park facilities are a "public forum," available to both religious and nonreligious groups. Judge Enright concluded the City's open access policy accommodates "both the free speech and the establishment of religion issues of the First Amendment." The plaintiff then appealed the case to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit heard oral argument on April 3, 1991, and subsequently remanded the case to the district court for further factual findings. Specifically, the Ninth Circuit instructed the district court to determine:

What are the policies of the City of San Diego with respect to granting permits for the use of Balboa Park.... If it is contended that there are oral or partially oral policies, the court shall specify any evidence indicating the establishment of such policies and any evidence indicating that the public has been made aware of such policies. The court may make any further findings on factual developments which the parties regard as material to the issues in this appeal.

The Ninth Circuit amended the order to allow the district court to "amend its conclusions of law in light of any new factual findings."

Upon remand, Judge Enright recused himself, and the case was transferred to this court. This court held hearings in which oral and written testimony was received on November 1, 1991 and November 8, 1991. Following a review of the evidence received at those hearings, the files and records of the action, and Judge Enright's Memorandum Decision and Order dated November 8, 1989, the court adopts Judge Enright's Memorandum Decision, attached as exhibit "1," as the opinion of this court as to the federal claims, and further makes the following additional findings of fact and conclusions of law. This court agrees with Judge Enright that under the circumstances of this case,

the City's practice of allowing the Committee to display a nativity scene in Balboa Park does not violate the Establishment Clause. Given the public forum aspect of the present case, the City's open access policy accommodates both the free speech and the establishment of religion issues of the First Amendment.

II

FINDINGS OF FACT

A. CITY'S POLICY REGARDING PERMITS IN BALBOA PARK

1. In 1988, the City created a system of permits to facilitate and accommodate uses of the Park and Park facilities. Relevant to this case, the City provides five different types of permits: (1) the park use permit, which allows for a partly exclusive, short-term grant for weddings, picnics, or other fairly large gatherings of individuals; (2) the park facility use permit, which allows exclusive use of a Park facility; (3) the right-of-entry permit, which allows exclusive use within a restricted area for longer periods of time and issued primarily to businesses and organizations; (4) the nonexclusive use and occupancy permit, which allows ongoing use of a permanent facility on the condition the facility is open to the public; and (5) the special use permit, which allows exclusive use of a site for Park-endorsed activities, such as square dancing exhibitions.

2. The regulations governing the appropriate type of permit for a particular activity are set forth in the Park and Recreation Department's fees and charges schedule. Beyond these regulations, the City has not presented any evidence of a written policy regarding the issuance of permits.

3. This court finds that the City's policy regarding the issuance of permits is an oral policy. Specifically, the City's policy is one of "first come, first served," allowing access to the Park or Park facilities to any group or individual who reasonably first requests use of the area and complies with the Park and Recreation Department's permit requirements.²

a. Penny Scott is employed by the City's Park and Recreation Department as the District Manager responsible for the permit system at Balboa Park. Scott testified at the hearing held before this court and in her declaration before the Ninth Circuit that the City's policy is first come, first served. Scott testified the City does not grant permits to the Christmas Committee on a preferential basis. This court finds Scott to be a credible witness after listening to her testimony and observing her demeanor.

b. Jack Krasovich, the Deputy Director of the Central Division for the City of San Diego, Park and Recreation Department, is Scott's immediate supervisor. Krasovich also testified that the City's policy is to grant permits for use of the Park and its facilities on a first come, first served basis. This court also found Krasovich to be a credible witness and accepts his testimony regarding the City's policy as true.

4. To obtain a permit for use of the park or its facilities, an individual or group must contact the Park and Recreation's office in Balboa Park. The office is open on Monday through Friday from 7:30 a.m. to 5:00 p.m., and on Saturdays and Sundays from 9:00 a.m. to 3:00 p.m. After the individual or group contacts the office by calling, writing, or visiting the office, a member of Scott's staff works with the individual or group to determine what the intended display or activity involves and the appropriate permit. The general public is welcome to contact the office with questions regarding the acquisition of permits. As to a request for a display, the office reasonably requires specific information regarding the display, such as size and dimension before issuing a permit. Among other reasons, this information is necessary to accommodate other uses and to assure access to the Park for the general public. The office only provides the permit itself and does not utilize a formal permit application form.

5. This procedure and the City's oral policy of first come, first served has not presented a problem in the past. Until this year, as described below, the Christmas Committee has been the only entity to request use of the colonnades at the Organ Pavilion during the month of December for a display. Regarding other areas of the Park, Scott's staff has been successful in accommodating conflicting uses.

6. The City's Park and Recreation Department at Balboa Park is open to the public seven days a week at the times noted above. Beyond the open office, there is no additional evidence that the City has publicized or otherwise taken action to inform the general public of its policy regarding the use of the Park or its facilities. This court, notes, however, that Balboa Park is frequently used by a wide variety of individuals and groups, with and without permits, for demonstrations, vigils, and many other activities. This court accepts the testimony of the City's representative that until this year, there was only one request for an unattended display at Balboa Park. This court finds it reasonable for the City to choose not to expend its resources to publicize its policies and, instead, to provide an office with access to the public to address any inquiry concerning a permit.

7. Two to three years ago, the City agreed that a park use permit would be an appropriate permit for the Christmas Committee display. Consistent with the City's policy, the Park and Recreation office granted a park use permit to the Christmas Committee to exhibit its display in the Organ Pavilion for December 1991.

B. ACLU'S INADEQUATE ATTEMPT TO RESERVE THE ORGAN PAVILION COLONNADES ONE DAY AFTER ORAL ARGUMENT

1. The ACLU has complicated the litigation by partially attempting to obtain a permit for an unattended display at the colonnades in the Organ Pavilion for the month of December 1991. The ACLU has participated in this litigation as amicus and attended the oral argument before the Ninth Circuit on April 3, 1991, at which time the parties agreed to explore a resolution of the case. One day after oral argument, the ACLU sent its employee Janet Bergo to speak with Scott, without advising counsel for the City, about the possibility of obtaining a permit for the same time and location as sought by the Christmas Committee.

2. On April 4, 1991, Bergo brought a letter signed by Betty Wheeler, the legal director of the ACLU, to Scott to discuss the possibility of obtaining a permit. The letter requested a permit to exhibit a display celebrating the Bill of Rights in honor of the Bicentennial of the Bill of Rights. Bergo also provided a poster, but indicated the display was not intended to duplicate the poster. Bergo did not provide, nor did the April 4th letter provide, any specifics relating to size, dimension, or other mechanics of the display. Scott asked Bergo questions about the specifics of the display, and Bergo responded that the technical details needed to be worked out. Scott testified she informed Bergo she could not issue a permit at that time without further information as to the specifics of the display. Bergo responded she would check with her supervisor and get back to Scott. Bergo testified that Scott seemed excited and enthusiastic about the idea.

3. Later that afternoon, Bergo called Scott to inform her that the...