Murphy v. Bilbray, Civ. No. 90-0134 GT

CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)
Writing for the CourtA.R. Robbins, Robbins & Keehn, San Diego, Cal., amicus curiae (appearing in support of defendants)
Citation782 F. Supp. 1420
Decision Date03 December 1991
Docket Number89-0820 GT and 90-0135 GT.,Civ. No. 90-0134 GT
PartiesJohn MURPHY, Plaintiff, v. Brian BILBRAY, George Bailey, Susan Golding, Leon Williams and John MacDonald, in their official capacities as members of San Diego County Board of Supervisors and the County of San Diego, Defendants. Philip K. PAULSON, Howard Kreisner and the Society of Separationists, Inc., Plaintiffs, v. CITY OF SAN DIEGO, CALIFORNIA, Defendant. James ELLIS, Plaintiff, v. CITY OF LA MESA, et al., Defendants.

782 F. Supp. 1420

John MURPHY, Plaintiff,
v.
Brian BILBRAY, George Bailey, Susan Golding, Leon Williams and John MacDonald, in their official capacities as members of San Diego County Board of Supervisors and the County of San Diego, Defendants.

Philip K. PAULSON, Howard Kreisner and the Society of Separationists, Inc., Plaintiffs,
v.
CITY OF SAN DIEGO, CALIFORNIA, Defendant.

James ELLIS, Plaintiff,
v.
CITY OF LA MESA, et al., Defendants.

Civ. Nos. 90-0134 GT, 89-0820 GT and 90-0135 GT.

United States District Court, S.D. California.

December 3, 1991.


782 F. Supp. 1421

Dan Bacal, Law Offices of Dan Bacal, El Cajon, Cal., Betty Wheeler, ACLU Foundation of San Diego and Imperial Counties, San Diego, Cal., for plaintiff John Murphy.

Lloyd M. Harmon, Jr., County Counsel, Diane Bardsley, Chief Deputy County Counsel, Michael B. Poynor, Deputy County Counsel, Donal M. Hill, Deputy County Counsel, County of San Diego, Cal., for defendants Brian Bilbray, et al.

A.R. Robbins, Robbins & Keehn, San Diego, Cal., amicus curiae (appearing in support of defendants).

Philip K. Paulson, pro se.

Howard T. Kreisner, San Diego, Cal., for plaintiffs Philip K. Paulson, et al.

John W. Witt, City Atty., John M. Kaheny, Asst. City Atty., Ted Bromfield, Chief Deputy City Atty., Mary Kay Jackson, Deputy City Atty., San Diego, Cal., for defendant City of San Diego, Cal.

Michael Crowley, Betty Wheeler, ACLU Foundation of San Diego and Imperial Counties, San Diego, Cal., for plaintiff James Ellis.

John S. Meyer, Knutson, Meyer & Meeker, La Mesa, Cal., for defendants City of La Mesa, et al.

782 F. Supp. 1422

ORDER

GORDON THOMPSON, Jr., District Judge.

Before the court are 3 consolidated cases, each of which challenges the constitutionality of a local municipality's conduct with respect to the so-called "Latin cross." The Latin cross is a cross the stem of which is longer than its three other arms. One such cross, the Mt. Helix cross, is located in a municipal park in San Diego County. A second, the Mt. Soledad cross, is located in a municipal park in the City of San Diego. A third such cross is depicted on the official insignia of the City of La Mesa, which is located in San Diego County. Plaintiffs contend that the government's acquiescence in the presence and disposition of the first two Latin crosses in public parks and in the depiction of the third Latin cross on a public imprimatur violate the constitutions both of the state of California and of the United States.

This opinion addresses all three challenges. It proceeds first with an exposition of the facts relevant to each of the three challenges, then with a discussion of whether each plaintiff is entitled to sue, and finally with a discussion of the constitutional issues and how they bear on each challenge.

Because these challenges come before the court at the summary judgment stage of litigation, the court is required in its analysis of defendants' motions to interpret all evidence and justifiable inferences in the light most favorable to plaintiffs. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). Conversely, the court is required in its analysis of plaintiffs' motions to consider all evidence and justifiable inferences in the light most favorable to defendants. As the material facts in all three cases appear not to be in dispute, the court shall consider them identically as to both plaintiffs and defendants and shall rule on the parties' motions as a matter of law.1

I.

FACTS

A. The Mt. Helix and Mt. Soledad Crosses

The Mt. Soledad and Mt. Helix Latin crosses are substantially similar. Both stand in excess of 35 feet tall.2 Both are illuminated nightly. Each is erected in, and is a prominent feature of, a publicly-owned park.3 The parks in which the crosses stand are located atop two of the highest knolls in San Diego County.4 So situated, each cross can be seen from a substantial distance.5

Each of the two crosses has stood for a substantial number of years where it currently stands.6

782 F. Supp. 1423

Neither cross was erected with public funds,7 and each is the object of a private fund intended to provide for its maintenance.8 Nevertheless, it appears that a small amount of public funds has also been expended for the maintenance of each.9

Roles both religious and secular have been ascribed to each cross. Each has on occasion been used by members of the public for Christian religious purposes.10 Each cross also has been dedicated as a memorial to an individual or individuals who have died.11 In addition, the cross on Mt. Helix

782 F. Supp. 1424
serves pilots as a navigational aid, and the cross on Mt. Soledad assists surveyors and seismologists.12

While the two crosses clearly are alike in many respects, they also are distinguishable. In particular, it should be noted that whereas the property on which the Mt. Soledad Latin cross stands has been public for as long as the cross has stood there, the property on which the Mt. Helix Latin cross stands did not become public until after the cross had been erected on it.13

B. The La Mesa Insignia

The Latin cross at issue in the La Mesa case appears in an illustration on the city of La Mesa's official insignia. The illustration depicts several hills below two clouds. The cross is located at the center of the illustration, atop the highest hill and between the two clouds.14 Plaintiff claims that the image formed by the cross, the hills and the clouds appears to him to be a depiction of Calvary. Defendant, the City of La Mesa, contends that the image is meant to depict Mt. Helix, which is a prominent local landmark. The insignia itself appears on police vehicles, on shoulder patches affixed to the uniforms of police, animal control and fire fighting personnel, and on official literature distributed by the city of La Mesa.

C. The Plaintiffs and the Injuries They Allege

John Murphy, sole plaintiff in the Mt. Helix case, is a Catholic, San Diego County resident and taxpayer who "is offended by the use of public property and the expenditure of public money to display and illuminate the cross on Mt. Helix." Complaint at 2. Although he "otherwise would visit the Mt. Helix Nature Theatre and take out-of-town guests there to enjoy the panoramic view it offers, he instead avoids visiting the Theatre because of the presence of the large cross." Id. at 2-3. See also Declaration of John Murphy, October 15, 1990 (Plaintiff's Exhibit 1), at 2.

Philip Paulson and Howard Kreisner, plaintiffs in the Mt. Soledad case, both are Viet Nam War combat veterans, avowed atheists and residents and taxpayers of the city of San Diego. Complaint at 2-3, 5-7. Both submit in their complaint that they are "deeply offended" by the presence of the cross on Mt. Soledad. Id. at 3. As soldiers they saw companions in arms who adhered to many different faiths fall in combat. Id. at 5-7. Having been unable to identify the occurrence of any commemorative activities at the site of the cross, they consider its characterization as a veterans memorial an "outrageous insult." Id. at 6-7. Both Paulson and Kreisner would like to visit Mt. Soledad in order to enjoy its spectacular view, but because the cross is there they instead avoid it. Id. at 5, 7. As a result of the cross' presence, they feel they "are made to feel like outcasts and second-class citizens in their own home town." Id. at 8.

Their co-plaintiff, the Society of Separationists, is a Maryland corporation which is licensed to do business in California and which includes them among its members. Id. at 3-4. It is a "nonprofit, nonpolitical, educational organization dedicated to the complete and absolute separation of state

782 F. Supp. 1425
and religion/church ... on behalf of its members and itself." Id. at 3

James Ellis, sole plaintiff in the La Mesa insignia case, is a religious Episcopalian, La Mesa resident and taxpayer who is "deeply offended by the expenditure of taxes for insignias depicting a religious symbol." Complaint at 2-3. See also Declaration of James Ellis in Support of Plaintiff's Motion for Summary Judgment, October 15, 1990 (Plaintiff's Exhibit E), at 2. Because the insignia is prominently displayed on city vehicles and on official city mailings to residents, he is unable to avoid contact with it. Id. at 3. Mr. Ellis declares that lest the cross on the insignia offend business clients or embarrass himself, he has in the past declined to invite business clients to his home when, but for the presence of the cross on the insignia, he would have invited them. Id. at 2. Mr. Ellis is particularly troubled by the way in which the insignia associates Christianity with the police department. He believes that it "symbolically tells people who are Christians that they are welcome or favored ... and ... tells people who are not Christians that they are outsiders or less than welcome." Id. at 3.

II.

STANDING

Before this court can begin to consider any plaintiff's claim, it must first be satisfied that that plaintiff has standing to have his claim heard. That is, each plaintiff must "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant." Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (citations omitted). Plaintiffs may satisfy the injury requirement either by alleging a direct injury or by proving that they are municipal taxpayers objecting to municipal expenditures.15

The Supreme Court has made clear that psychological injury suffered by one who observes conduct with which he or she disagrees is insufficient to confer standing. Valley Forge, 454 U.S. at 485-87, 102 S.Ct. at 765-67 (intensity of plaintiff's interest in the separation of church and state cannot substitute for requirement of injury in fact). Thus even if the crosses offend...

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14 practice notes
  • Barnes-Wallace v. Boy Scouts of America, No. 00-CV-1726-J(AJB).
    • United States
    • U.S. District Court — Southern District of California
    • July 31, 2003
    ...1567, 1569 (9th Cir. 1991). Public entities are subjected to a "demanding standard of constitutional compliance." Murphy v. Bilbray, 782 F.Supp. 1420, 1429 (S.D.Cal.) (Thompson, J.), aff'd sub nom. Ellis v. City of La Mesa, 990 F.2d 1518 (9th Page 1277 The state supreme court most recently ......
  • Paulson v. Abdelnour, No. D047702.
    • United States
    • California Court of Appeals
    • November 30, 2006
    ...permanent presence of the cross at the Mount Soledad site. The court's ruling was upheld on appeal. (Murphy v. Bilbray (S.D.Cal.1991) 782 F.Supp. 1420, 1438, affirmed in Ellis v. City of La Mesa (9th Cir.1993) 990 F.2d 1518, cert. denied (1994) 512 U.S. 1220, 114 S.Ct. In order to comply wi......
  • Utah Gospel Mission v. Salt Lake City Corp., No. 2:03CV688 DAK.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • May 3, 2004
    ...(upholding an award of nominal damages for condemnation of "possibilities of reverter" considered to be "worthless"); Murphy v. Bilbray, 782 F.Supp. 1420, 1434 (S.D.Cal.1991) ("possibilities of reverter may not comprise guarantees so fundamental as to be reposed in the Constitution ... of t......
  • Archer v. Gipson, Case No. 1:12–CV–00261–LJO–JLT.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • May 28, 2015
    ...has standing to sue, and [his] presence as a plaintiff has no effect on the relief available"); see also Murphy v. Bilbray, 782 F.Supp. 1420, 1426 n. 19 (S.D.Cal.1991) (holding that where at least 108 F.Supp.3d 907one plaintiff in each of three consolidated cases had standing, the court was......
  • Request a trial to view additional results
14 cases
  • Barnes-Wallace v. Boy Scouts of America, No. 00-CV-1726-J(AJB).
    • United States
    • U.S. District Court — Southern District of California
    • July 31, 2003
    ...1567, 1569 (9th Cir. 1991). Public entities are subjected to a "demanding standard of constitutional compliance." Murphy v. Bilbray, 782 F.Supp. 1420, 1429 (S.D.Cal.) (Thompson, J.), aff'd sub nom. Ellis v. City of La Mesa, 990 F.2d 1518 (9th Page 1277 The state supreme court most recently ......
  • Paulson v. Abdelnour, No. D047702.
    • United States
    • California Court of Appeals
    • November 30, 2006
    ...permanent presence of the cross at the Mount Soledad site. The court's ruling was upheld on appeal. (Murphy v. Bilbray (S.D.Cal.1991) 782 F.Supp. 1420, 1438, affirmed in Ellis v. City of La Mesa (9th Cir.1993) 990 F.2d 1518, cert. denied (1994) 512 U.S. 1220, 114 S.Ct. In order to comply wi......
  • Utah Gospel Mission v. Salt Lake City Corp., No. 2:03CV688 DAK.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • May 3, 2004
    ...(upholding an award of nominal damages for condemnation of "possibilities of reverter" considered to be "worthless"); Murphy v. Bilbray, 782 F.Supp. 1420, 1434 (S.D.Cal.1991) ("possibilities of reverter may not comprise guarantees so fundamental as to be reposed in the Constitution ... of t......
  • Archer v. Gipson, Case No. 1:12–CV–00261–LJO–JLT.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • May 28, 2015
    ...has standing to sue, and [his] presence as a plaintiff has no effect on the relief available"); see also Murphy v. Bilbray, 782 F.Supp. 1420, 1426 n. 19 (S.D.Cal.1991) (holding that where at least 108 F.Supp.3d 907one plaintiff in each of three consolidated cases had standing, the court was......
  • Request a trial to view additional results

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