Lumpkin v. Jordan

• Decision Date: 02 October 1996
• Docket Number: No. A069828,A069828
• Citation: 49 Cal.App.4th 1223,57 Cal.Rptr.2d 303
• Court: California Court of Appeals Court of Appeals
• Parties: , 71 Fair Empl.Prac.Cas. (BNA) 1786, 69 Empl. Prac. Dec. P 44,330, 96 Cal. Daily Op. Serv. 7385, 96 Daily Journal D.A.R. 12,081 Eugene LUMPKIN, Jr., Plaintiff and Appellant, v. Frank M. JORDAN, as Mayor, etc., et al., Defendants and Respondents.

Page 303

57 Cal.Rptr.2d 303

49 Cal.App.4th 1223, 71 Fair Empl.Prac.Cas. (BNA) 1786,

69 Empl. Prac. Dec. P 44,330,

96 Cal. Daily Op. Serv. 7385,

96 Daily Journal D.A.R. 12,081

Eugene LUMPKIN, Jr., Plaintiff and Appellant, v. Frank M. JORDAN, as Mayor, etc., et al., Defendants and Respondents.

No. A069828.

Court of Appeal, First District, Division 5, California.

Oct. 2, 1996.

James D. Struck, The Struck Firm, Modesta, Brad C. Dacus, The Rutherford Institute, Sacramento, for plaintiff and appellant.

Louise H. Renne, City Attorney, Dennis Aftergut, Chief Assistant City Attorney, Thomas J. Owen, Julia M. C. Friedlander, Deputy City Attorneys, for defendants and respondents.

CHAMPLIN, Associate Justice. ^*

Reverend Eugene Lumpkin, Jr. (Reverend Lumpkin) appeals after Mayor Frank Jordan (Mayor Jordan) and the City and County of San Francisco (the City) successfully demurred to his complaint. ¹ The trial court concluded that the issues raised by Reverend Lumpkin's complaint had been fully litigated in a prior federal action involving the same parties and, therefore, that Reverend Lumpkin was collaterally estopped from relitigating them. Reverend Lumpkin contends that the record fails to establish that the identical issues were necessarily decided in the prior federal action. He further argues that the trial court abused its discretion in applying collateral estoppel to this case. We affirm.

Background

This case concerns the alleged unlawful removal of Reverend Lumpkin from the City's Human Rights Commission (the Commission). The events leading up to Reverend Lumpkin's removal are not in dispute. On August 13, 1992, Mayor Jordan, then Mayor of the City, appointed Reverend Lumpkin to serve as a member of the Commission. At the time of his appointment, Reverend Lumpkin was a Baptist minister who served as Pastor of the Ebenezer Baptist Church. Mayor Jordan and Reverend Lumpkin had known one another for over 15 years and, at the time of the appointment, Mayor Jordan was aware that Reverend Lumpkin was a Baptist minister.

On June 26, 1993, the San Francisco Chronicle quoted Reverend Lumpkin as saying: "It's sad that people have AIDS and what have you, but it says right there in the scripture that the homosexual lifestyle is an abomination against God. So I have to preach that homosexuality is a sin." These remarks provoked a public controversy surrounding Reverend Lumpkin's membership on the Commission.

On July 13, 1993, after meeting with Reverend Lumpkin, Mayor Jordan issued a press release announcing that he would not remove Reverend Lumpkin from the Commission. In this statement, Mayor Jordan stated that Reverend Lumpkin "has a solid and unambiguous record as a member of the Human Rights Commission. As a commissioner he has protected and advanced gay and lesbian civil rights."

In reaction to Mayor Jordan's announcement, the San Francisco Board of Supervisors adopted a resolution on July 19, 1993, calling for Reverend Lumpkin's resignation or removal from the Commission. The resolution demanded that Mayor Jordan "restore public confidence in the role and mission of the Commission, especially with regards to the ability of the Commission to consider complaints and lead the community toward equality and respect for all lesbian and gay San Franciscans."

On August 20, 1993, Reverend Lumpkin was interviewed during a live broadcast of a television news show, Mornings on 2. After the interviewer identified Reverend Lumpkin as a member of the Commission, he asked him if he believed homosexuality to be an "abomination." Reverend Lumpkin replied, "Sure, I believe, I believe everything the Bible sayeth." The following exchange ensued:

"Interviewer: Leviticus also says that a man who sleeps with a man should be put to death. Do you believe that? Reverend Lumpkin: That's what it sayeth. Interviewer: Do you believe that? Reverend Lumpkin: That's--I said that's what the Book sayeth."

Later that day, after learning of the interview, Mayor Jordan asked Reverend Lumpkin to resign from the Commission. In a press release explaining his decision, Mayor Jordan stated: "While religious beliefs are constitutionally protected and cannot be the grounds to remove anyone from elected or appointed public office, the direct or indirect advocacy of violence is not, cannot and will not be condoned by this administration.... On the grounds of religious freedom and an unblemished record as a Human Rights Commissioner, I have supported Reverend Lumpkin for holding fundamentalist beliefs which are not my own. We part company when those beliefs imply that attacks against anyone can be justified by the scripture or on any other grounds."

On August 23, 1993, Mayor Jordan met with Reverend Lumpkin, who refused to resign. After this meeting, Mayor Jordan announced his decision to remove Reverend Lumpkin from the Commission.

The Federal Lawsuit

After his removal from the Commission, Reverend Lumpkin brought suit against Mayor Jordan in state court, but the case was removed to federal court at Mayor Jordan's request. An amended complaint was filed in federal court and the City was added as a party. The first cause of action was alleged under the California Fair Employment and Housing Act (FEHA), barring discrimination in employment decisions on the basis of religion. (See Gov.Code, § 12940.) Reverend Lumpkin alleged that he had been terminated "solely because of his religious beliefs" in violation of the FEHA. The second cause of action alleged that defendants, acting under color of state law, deprived Reverend Lumpkin of the right to exercise his constitutionally protected religious beliefs as guaranteed by 42 United States Code section 1983. ² He sought reinstatement to the Commission, compensatory damages, and attorney fees.

The federal court granted summary judgment to Mayor Jordan and the City on all of the causes of action, except for the claims based on FEHA, over which the federal court declined to exercise its supplemental jurisdiction. The state FEHA claims were dismissed without prejudice to refiling in state court. ³

The operative provisions of the federal opinion granting summary judgment, of which we take judicial notice (Evid.Code, §§ 452, subd. (d); 459), are as follows: Reverend Lumpkin's removal from the Commission did not violate his freedom of expression. The court reasoned that he was a policymaker with the Jordan administration and "Reverend Lumpkin's televised remarks regarding homosexuality could reasonably have been interpreted by the Mayor as undermining the very policies of the Commission to promote good will toward all people."

The court's order further held that Reverend Lumpkin's removal did not violate his rights under the Free Exercise Clause. The court found that Mayor Jordan's interest in preventing disruption of the goals of his administration outweighed Reverend Lumpkin's right to religious expression. The court's opinion points out that "[c]ritical to this analysis is the fact that Reverend Lumpkin was not removed solely for exercising his constitutional rights. He is, and at all times was, free to hold and to profess his religious beliefs; however, when the expression of those beliefs clashed with the goals of the Jordan Administration and undermined the public confidence in the ability of the Commission to effect its goals, the Mayor was justified in removing him."

Finally, the court's order held that Reverend Lumpkin's removal did not violate the Establishment Clause. The court explained that Reverend Lumpkin's removal could not reasonably be construed as sending a message either endorsing or disapproving of religion and that "his removal was based on secular concerns." The court emphasized that Reverend Lumpkin "was not removed because he believed in the inerrancy of the Bible; rather, he was removed because his religious beliefs were at odds with the goals of the Commission and disrupted Mayor Jordan's administration."

Reverend Lumpkin has appealed from this judgment. His appeal is presently pending before the United States Court of Appeal, Ninth Circuit (No. 95-15006), oral argument having been heard on April 8, 1996.

The State Action

On or about December 14, 1994, Reverend Lumpkin refiled his FEHA claim against Mayor Jordan and the City in state court. They demurred to the complaint, arguing that the federal summary judgment finding that Reverend Lumpkin's removal from the Commission was motivated by legitimate, as opposed to discriminatory, reasons negated the necessity of a trial on Reverend Lumpkin's state religious discrimination claims. The trial court agreed, indicating the federal order "is final under federal law and operates as collateral estoppel on this Court on the issue of [Reverend Lumpkin's] removal for religious belief. As a matter of law, [Reverend Lumpkin] was removed for a secular purpose and therefore cannot state a claim under the California Fair Employment and Housing Act." Accordingly, the trial court granted the demurrer to Reverend Lumpkin's complaint without leave to amend. This appeal followed.

Discussion

In general, collateral estoppel (or as it is sometimes known, issue preclusion) precludes a party from relitigating an issue of fact or law if the issue was litigated and decided in a prior proceeding. (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279, 1289-1290, 265 Cal.Rptr. 162, 783 P.2d 749.) ⁴ The rules on application of collateral estoppel are found in the Restatement Second of Judgments. Section 27 of the Restatement provides, "When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." Application of collateral estoppel prevents a litigant from being "subjected to consecutive proceedings raising the same...