Schmid v. City and County of San Francisco

• Decision Date: 01 February 2021
• Docket Number: A158861
• Citation: 274 Cal.Rptr.3d 727,60 Cal.App.5th 470
• Court: California Court of Appeals Court of Appeals
• Parties: Frear Stephen SCHMID et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.

60 Cal.App.5th 470

274 Cal.Rptr.3d 727

Frear Stephen SCHMID et al., Plaintiffs and Appellants,

v.CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents.

A158861

Court of Appeal, First District, Division 4, California.

Filed February 1, 2021

Law Office of Frear Stephen Schmid and Frear Stephen Schmid, San Francisco, for Plaintiffs and Appellants.

Dennis J. Herrera, City Attorney, Kristen A. Jensen and Andrea Ruiz-Esquide, Deputy City Attorneys, for Defendants and Respondents City and County of San Francisco and Tom DeCaigny.

Donahue Fitzgerald, Andrew S. MacKay and Holiday Dreessen Powell, Oakland, for Defendants and Respondents Atthowe Transportation Co., Inc. and Scott Atthowe.

Smith, Currie & Hancock, Daniel F. McLennon, Marc L. Sherman, San Francisco, and Matthew Volkmann, for Defendant and Respondent ARG Conservation Services.

STREETER, J.

Appellants Frear Stephen Schmid and Patricia Briggs open their argument in this appeal with the story of the destruction of a statue of the great composer Felix Mendelssohn in Leipzig, Germany in 1936. Against the wishes of the mayor of that city, who was out of town at the time, and without notice to anyone, the Mendelssohn statue was shattered to pieces one night by order of the deputy mayor, a Nazi who sought to erase any trace of Jewish contributions to the cultural history of Leipzig.

The story is bracing as history, and deservedly remembered as a cautionary tale, but has nothing to do with the law we are asked to apply in this case, or the facts. The dispute we deal with here is a local version of the controversies over removal of commemorative symbols, generally names and statues of historical figures, that have played out across the country recently. Centrally at issue is an administrative decision made by the San Francisco Board of Appeals (the Board of Appeals or the Board) authorizing the removal of a bronze sculpture known as "Early Days," which was originally part of a Civic Center monument to the pioneer period of California (the Pioneer Monument).

In 2018, at the request of the San Francisco Arts Commission (Arts Commission), the San Francisco Historic Preservation Commission (HPC) granted a Certificate of Appropriateness (COA) "to alter a small scale character-defining feature in the Civic Center Landmark District"—specifically, to take down "Early Days" and place it in storage. Acting upon evidence of "significant adverse public reaction over an extended period of time," the HPC adopted a motion authorizing the removal of "Early Days" pursuant to the COA, and the Board of Appeals ultimately affirmed it.

Appellants Schmid and Briggs, two opponents of the removal, sued the City and County of San Francisco (the City) and affiliated defendants asserting a potpourri of claims, including a claim for violation of their civil rights under the Tom Bane Civil Rights Act ( Civ. Code, § 52.1 (Bane Act)) and a claim seeking writ relief under Code of Civil Procedure sections 1085 and 1094.5. They allege that the Board of Appeals abused its discretion in authorizing the removal of "Early Days" and that the manner of the removal—which took place in the pre-dawn hours of the day following the Board of Appeals’ decision—was illegal.

After the trial court sustained a demurrer without leave to amend, Schmid and Briggs appealed. We conclude the appeal has no merit and shall affirm.

I. BACKGROUND

A. Factual Backdrop and Administrative Proceedings¹

Those who frequent the Civic Center area of San Francisco may recall that, adjacent to United Nations Plaza, sited in direct linear alignment with City Hall, there is a bronze statuary monument commemorating the era in which the state of California was founded. Part of a bequest left to the City by the James Lick Trust in 1876, the Pioneer Monument depicts this history in a series of vignettes. It seeks to honor the civic generosity of James Lick and other leading members of the pioneer generation, a group popularly known as the "forty-niners." When installed and dedicated in 1894 to commemorate the 44th Anniversary of the admission of California to the Union, the Pioneer Monument was originally placed on Market Street near the corner of Grove and Hyde Streets. Designed by the German sculptor Frank Happersberger, it included five groups of iconic figures, one of which was titled "Early Days."

At the ceremony to dedicate the Pioneer Monument in November 1894, E.B. Mastick, a member of the James Lick Trust, gave "a synopsis of the History of the [James Lick] Trust, its benefits and results." Mastick described "Early Days" as follows: It is a "group of three figures ... consist[ing] of a native Indian reclining, over whom bends a Catholic priest, endeavoring to convey to the Indian some religious knowledge. On his face you may see the struggle of dawning intelligence." The featured speaker for the day, Willard B. Farwell, described "Early Days" in similar terms. He said it depicted "[t]he padre, fired with zeal and love of holy Church, lifting with tender care the savage from his low estate to walk the pathway of the Christian faith."²

Public criticism of "Early Days" for displaying a racist attitude toward Native Americans ultimately led to its removal in 2018, but when installed in 1894 the Pioneer Monument was controversial for a different reason. Many pioneers—Lick among them—amassed vast fortunes in the mining and railroad industries and eventually became notable philanthropists. ³

But their place in California history and culture was sharply contested in the 1890's, when the dedication ceremony took place. In a series of newspaper articles published shortly before the ceremony, several leading clerics were quoted describing the pioneers as godless, amoral, prone to criminality, and unworthy of commemoration. While lavishing praise on Lick for his many civic contributions, Farwell devoted much of his nearly 10,000-word address to a rebuttal of these "reckless pulpit utterances."⁴

A century later, the Pioneer Monument again became a lightning rod for public controversy. To make way for the San Francisco Public Library, there was a proposal in the early 1990's to move the sculpture group to its current location in the Fulton Street right-of-way between the library and the Asian Art Museum. Schmid and Briggs acknowledge that, in connection with this proposed move, public complaints were received that the Pioneer Monument was "racist and offensive." But they point out that these criticisms did not carry the day. The Pioneer Monument was moved intact to Civic Center in 1993 with the support of then-Mayor Willie Brown, who reportedly said at an Arts Commission meeting "that he envisioned [it] as the center of a civic center complex ... he expected to be the most interesting in the nation ... [and] that San Francisco had always been a site of controversy between cultures."

Twenty-five years later, charges of racial insensitivity surfaced again, but this time the City acted on them. In December 2017, the Arts Commission applied to the San Francisco Planning Department (Planning Department) for the COA, which it requested on the following terms: It sought authority for the "[r]emoval of the ‘Early Days’ bronze sculptural grouping, which is one out of five existing bronze sculptures on the Pioneer Monument. The sculpture will be removed and prepared for storage by conservation professionals. Storage will occur at an off-site location that provides adequate protection of the sculpture from physical and environmental damage or deterioration." The COA required that the removal work take place pursuant to permits issued by the San Francisco Department of Building Inspection or other appropriate agencies.

Because the Pioneer Monument is located within a landmarked historic district, the first step in the administrative process took place before the HPC. At a public hearing on February 21, 2018, on the application of the Arts Commission, the HPC took up a motion for issuance of the COA. There is no evidence that anyone at the hearing raised an issue about a perceived need for environmental review. Concurring with the Planning Department's staff-level determination that the proposed removal of "Early Days" is categorically exempt from environmental review, the HPC adopted the motion, granting the COA on the terms set forth in the application before the Planning Department and adding some conditions, most pertinently here that "a plaque shall be installed at the site of the Early Days sculpture to explain its removal." Two weeks later, on March 5, 2018, the Arts Commission passed a resolution authorizing the removal and placement in storage of "Early Days" on the conditions set by the COA, as adopted by the HPC.

No one appealed the HPC's determination of categorical environmental exemption to the San Francisco Board of Supervisors (Board of Supervisors). Although Schmid did not attend the HPC's public hearing, he appealed the HPC's adoption of the COA to the Board of Appeals. The Board initially upheld that appeal and vacated the COA, but changed course on rehearing. At a public hearing on September 12, 2018, the Board voted four to zero to reverse its earlier decision, thereby reinstating the COA. Schmid and Briggs allege that, at the September 12 hearing, proponents of removing "Early Days" subjected them to hostile criticism for opposing removal. It is undisputed that, as Schmid and Briggs further allege, the City removed "Early Days" in response to public controversy surrounding "the assertion that it was racist and painful to Native Americans and those who shared the interpretation of it being racist[,] and that its existence represented white supremacy."

Once the COA was finally approved, the City acted immediately to implement it in accordance with the Arts Commission's resolution. The removal of "Early Days" took place in the pre-dawn hours of September 14, 2018, when a crew of workers arrived at the site of the Pioneer Monument and...