Category Archives: Establishment Clause

Hazle v. Crofoot, 727 F.3d 983 (9th Cir. 2013)

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Some of the 9th Circuit judges hold an innate ability to Constitutionalize claims that are nothing more than ordinary torts.  Hazle was imprisoned for drug violations and released on parole contingent upon his participation in an addiction control program.  His parole officer assigned him to a program but Hazle refused because his belief as an atheist foreclosed participation in any program referencing God or a “higher power.”  In his transfers to various addiction control organizations, none had secular programs and he repeatedly objected to their religious element in treatment.  The parole staff lacked any secular treatment program and returned Hazle to prison where he served 100 days before his release.

Hazle filed his section 1983 claim alleging violation of the First Amendment Establishment Clause and sought compensatory damages.  The trial judge agreed that parole officers could not compel Hazle to participate in a religious program and entered judgment in his favor on the issue of liability against the State. The jury heard the evidence on damages, the trial court having informed jurors that liability has already been established, and their only role was confined to compensatory damages.  The jury found zero damages.  The district court judge denied a motion for a new trial. Hazle appealed.

This case is nothing more than a simple tort of false imprisonment, if anything.  But the 9th Circuit panel, citing  a Supreme Court case, held that if liability is established on a section 1983 claim then compensatory damages are mandatory. Smith v. Wade, 461 U.S. 30 (1983).

The  panel quoted the language in Smith that if a section 1983 claim established liability, compensatory damages are “required.”  That is not what Smith held.  In Smith, the Supreme Court was discussing the legal difference between punitive damages, a remedy discretionary with the jury, and compensatory damages awarded contingent on the extent of the injury.  The Supreme Court did not say compensatory damages were “required” just because liability had been established.  “[O]nce liability is found, the jury may award damages “in an appropriate amount to compensate the plaintiff for his loss; Smith.  That is what the jury did.

This decision is remarkable.  The panel does not like the verdict so the trial court must retry this routine absurd case. If a jury concludes no compensatory damages are awarded, even if liability had been established, that verdict should stand.  In this case Hazle alleged emotional distress. No wonder the jury found no damages.  

 

Trunk v. City of San Diego, 629 F.3d 1099 (9th Cir. 2011)

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Several years ago one Paulson filed a Complaint in federal court alleging a “Latin Cross” located on a remote desert property offended him, and its size and location violated the Establishment Clause of the First Amendment (Paulson v. City of San Diego, 294 F.3d 1124 (9th Cir. 2002).  After years of litigation, and the 9th Circuit repeatedly ordering removal of the cross, the Supreme Court reversed on procedural grounds and ordered the district court to conduct an evidentiary hearing. (This case was extensively reviewed in an earlier blog); Salazar v. Buono,130 S.Ct. 1803 (2010).

Apparently impatient with the courts, the plaintiff in Trunk v.City of San Diego filed litigation specifically alleging a First Amendment violation despite Supreme Court language in Salazar inferring the Latin cross  did not violate the Establishment Clause.  The Ninth Circuit panel, ostensibly distinguishing the Salazar case, held  the cross violated the First Amendment.

The Ninth Circuit panel wrote a lengthy history of the litigation and cites a litany of its own cases in support of its decision.  The cross was erected in the desert by veterans of World War I in honor of those who died in the war. When the 9th Circuit ordered is removal, the City of San Diego transferred the property to a private owner. Characterized as a “sham” transaction by the 9th Circuit, the property was transferred to the federal government, and Congress confirmed the property as a memorial.  In Buono v. Kempthorne, 527 F.3d 758 (9th Cir. 2008) the 9th Circuit voided the Congressional finding.  Ultimately, as noted above, the Supreme Court reversed the Ninth Circuit but the Justices did not specifically address the First Amendment issue; Salazar v. Buono.

In Trunk, on appeal from a U.S. District Court ruling sspecifically on the Establishment Clause in favor of the government, the 9th Circuit panel  embarked upon a disquisition of religion and memorials, concluding the Latin cross signified a religious perspective prohibited under the First Amendment. In effect, the panel ordered removal of the cross by awarding summary judgment in favor of the plaintiff-the exact opposite of the District Court order. 

As noted by a dissenting judge in the Kempthorne case, aapparently the seventy years since the veterans erected the cross no one was “offended” until the time of the litigation.

Catholic League v. City/Co./San Francisco, 624 F.3d 1043 (9th Cir. ( 2010)

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Here is a Resolution passed, but not enacted, by the San Francisco Board of Supervisors:
WHEREAS, It is an insult to all San Franciscans when a foreign country, like the Vatican, meddles with and attempts to negatively influence this great City’s existing and established customs and traditions such as the right of same-sex couples to adopt and care for children in need; and
WHEREAS, The statements of Cardinal Levada and the Vatican that Catholic agencies should not place children for adoption in homosexual households, and Allowing children to be adopted by persons living in such unions would actually mean doing violence to these children are absolutely unacceptable to the citizenry of San Francisco; and
WHEREAS, Such hateful and discriminatory rhetoric is both insulting and callous, and shows a level of insensitivity and ignorance which has seldom been encountered by this Board of Supervisors; and
WHEREAS, Same-sex couples are just as qualified to be parents as are heterosexual couples; and
WHEREAS, Cardinal Levada is a decidedly unqualified representative of his former home city, and of the people of San Francisco and the values they hold dear; and
WHEREAS, The Board of Supervisors urges Archbishop Niederauer and the Catholic Charities of the Archdiocese of San Francisco to defy all discriminatory directives of Cardinal Levada; now, therefore, be it
RESOLVED, That the Board of Supervisors urges Cardinal William Levada, in his capacity as head of the Congregation for the Doctrine of the Faith at the Vatican (formerly known as Holy Office of the Inquisition), to withdraw his discriminatory and defamatory directive that Catholic Charities of the Archdiocese of San Francisco stop placing children in need of adoption with homosexual households.
The Court: “Plaintiffs sued the City, claiming that this official government resolution violates the Establishment Clause. The district court dismissed their lawsuit for failure to state a claim upon which relief could be granted, and we initially affirmed.” On rehearing en banc, in a split decision, the Ninth Circuit affirmed the District Court.

The Ninth Circuit decision cites innumerable cases on First Amendment Establishment Clause cases and ultimately concludes the plaintiffs lack “standing” and cannot prevail on the merits. If the Board of Supervisors had  submitted a Resolution  to any other group  in this callous and vicious language would the result be the same?

That the City & County of San Francisco expended taxpayer money to defend this attack on the Catholic Church is itself indefensible. But the underlying issue is this: Homosexual and lesbian groups repeatedly urge Californians to exercise “tolerance.” This Resolution is an example of the City and County’s understanding of “tolerance.”

The City & County of San Francisco also enacted another ordinance mandatorily imposing racial and gender preference on those bidding on public contracts; Coral Construction, Inc., v. City & County of San Francisco.   The California Supreme Court rejected this ordinance in a 6-1 opinion.

Here is another example of San Francisco “tolerance”: Bologna v. City  & Co. of San Francisco, 2011 WL 28629 (Cal.App.). 
While stopped in traffic, an illegal alien shot and killed three men sitting in another car.  Estates of the deceased men sued the City and Co. based upon its “sanctuary policy” established by the City.  Under this policy, the City & Co. do not report information to Immigration and Customs Enforcement (ICE) if aliens are arrested locally. A federal statute mandates all governmental entities to share information with ICE for arrests or convictions of illegal aliens; 8 U.S.C. 1373. Plaintiffs alleged the failure of police to report an alien previously arrested enabled him to maintain his freedom and kill the three men.

The Court of Appeal for the First District (San Francisco) unsurprisingly held the only relevant state statutes imposing liability on public officials inapplicable to the allegations in the Complaint.

Salazar v. Buono, 130 S.Ct. 1803 (2010)

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The facts in this case (under different named parties) have been summarized in former blogs. In each of the cases decided by the U.S. District Court and the Ninth Circuit, the judges ruled the Latin cross honoring deceased veterans of World War I embedded on federal land in a vast isolated national park violated the First Amendment Establishment Clause and enjoined its presence. Both courts held the plaintiff had “standing” to sue because he was “offended” by a cross on publicly owned land. Incredulously, the Ninth Circuit allowed his offended sensibilities to establish “standing.” This is not the first time the Ninth Circuit has allowed “offensiveness” to impart “standing” but the Government did not appeal the case. In response to the Ninth Circuit injunction, Congress arranged a “land exchange” with a private party in order to retain the Latin Cross on private property. The District Court and the Ninth Circuit, the latter characterizing the exchange as a “sham,” refused to acknowledge Congressional power to arrange the transfer. On appeal from the Ninth Circuit decision to the Supreme Court, the Justices reversed the Ninth Circuit and ordered the District Court to conduct an evidentiary hearing to determine correct application of First Amendment law. The Supreme Court criticized the Ninth Circuit for applying the wrong law. The only issue before the Supreme Court consisted of the plaintiff’s attempt to expand the scope of the injunction the District Court had originally issued and subsequently expanded. The facts, and the Supreme Court decision, are not as important as the language used by the Court in its decision. The Supreme Court chastised the U.S. District Court and the Ninth Circuit for ignoring the proper legal approach to the plaintiff’s challenge to the erection and maintenance of a Latin cross on federal land. The Court majority applied its previous Establishment precedent, and the first requirement to avoid its violation requires a religious symbol to include a secular component. In this case, the cross did not attempt submission to any religion but was a memorial to soldiers who died in World War I. The irony of this case is a sad footnote that not a single monument exists to honor those soldiers who died or were wounded. See, note following 16 U.S.C. 431 (listing officially designated national memorials, including the National D-Day Memorial and the Vietnam Veterans Memorial). Research discloses no other national memorial honoring American soldiers-more than 300,000 of them-who were killed or wounded in World War I. See generally A. Leland & M. Oboroceanu, Congressional Research Service Report for Congress, American War and Military Operations Casualties: Lists and Statistics 2 (2009). “It is reasonable to interpret the congressional designation as giving recognition to the historical meaning that the cross had attained. Cf. Van Orden v. Perry, 545 U.S. 677, 702-703, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (BREYER, J., concurring in judgment) (40 years without legal challenge to a Ten Commandments display suggest[s] that the public visiting the [surrounding] grounds has considered the religious aspect of the tablets’ message as part of what is a broader moral and historical message reflective of a cultural heritage.” The Supreme Court notes the only issue for their resolution is the expanded terms of the injunction issued by the District Court and affirmed by the Ninth Circuit. Although Salazar v. Buono is narrow decision, the majority decision contains some interesting language. Here are the excerpts: “The meaning conveyed by a monument is generally not a simple one, and a monument may be ‘interpreted by different observers, in a variety of ways’. The cross is of course the preeminent symbol of Christianity, and Easter services have long been held on Sunrise Rock, . . . But, as noted, the original reason for the placement of the cross was to commemorate American war dead and, particularly for those with searing memories of The Great War, the symbol that was selected, a plain unadorned white cross, no doubt evoked the unforgettable image of the white crosses, row on row, that marked the final resting places of so many American soldiers who fell in that conflict.” “If Congress had done nothing [about the Ninth Circuit decision], the Government would have been required to take down the cross, which had stood on Sunrise Rock for nearly 70 years, and this removal would have been viewed by many as a sign of disrespect for the brave soldiers whom the cross was meant to honor. The demolition of this venerable if unsophisticated, monument would also have been interpreted by some as an arresting symbol of a Government that is not neutral but hostile on matters of religion and is bent on eliminating from all public places and symbols any trace of our country’s religious heritage.” “This Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause. Rather, it leaves room to accommodate divergent values within a constitutionally permissible framework.” “. . .[T]he District Court concentrated solely on the religious aspects of the cross, divorced from its background and context. But a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people. Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.”