Metropolitan News-Enterprise


Thursday, March 27, 2003


Page 1


High Court Agrees to Review Ruling That Berkeley May End Free Berths for Sea Scouts


By KENNETH OFGANG, Staff Writer/Appellate Courts


The California Supreme Court agreed yesterday to review Berkeleyís decision to discontinue free berthing at the cityís marina for a group affiliated with the Boy Scouts of America.

A closely divided court voted at the weekly conference to hear the Sea Scoutsí challenge to a First District Court of Appeal decision backing the city. Justices Joyce L. Kennard, Marvin Baxter, Ming Chin, and Janice Rogers Brown voted to review the ruling in Evans v. City of Berkeley (2002) 104 Cal.App.4th 1. The scouts are fighting a 1998 city decision that halted free berthing for the nonprofit group because of the scoutsí membership and leadership policies against gays.

Other non-profits are eligible for free berthing, but the Sea Scouts have to pay $516 per month just like other users that are not nonprofit organizations.

The scouts sued the city, alleging breach of contract and violations of civil rights, equal protection rights, and of the First Amendment. They maintain that if Berkeley is going to provide free berthing to nonprofits, it cannot deny the same free access to nonprofits whose views run counter to those of the city.

The city stopped offering free access to the scouts after it passed a 1997 ordinance prohibiting the city from subsidizing groups that discriminate. The city had provided free berthing to the scouts for about 60 years after the scouts permitted Berkeley to use rocks from a Boy Scout camp for fill in the marina.

The Court of Appeal rejected the contract claim, saying the scouts had at best a permit to use the facility for free. And it held that the cityís actions have not infringed on the groupís rights because it remains free to discriminate against gays.

The U.S. Supreme Court has already ruled that the group has a First Amendment right to deny membership to those who do not share its opposition to homosexuality.

The justices yesterday granted review in two other matters, both criminal cases.

In People v. McCall (2002) 104 Cal.App.4th 1365, the Third District Court of Appeal struck down a state law that creates a presumption that a person in possession of red phosphorus and iodine, precursor chemicals for hydriodic acid, possesses that controlled substance.

In People v. Wallace (2003) 105 Cal.App.4th 250, the First Districtís Div. Four held that a defendantís guilty plea in an earlier case established the sufficiency of the evidence against him, so it was error for the sentencing judge in the defendantís new third-strike case to dismiss the prior based on the magistrateís pre-plea ruling that the evidence was inadequate.

In other conference action, the justices left standing a Fourth District Court of Appeal ruling that held the stateís grandparent visitation statute unconstitutional as applied in the case of a San Diego girl.

The courtís Div. One ruled that absent a showing that a parent is unfit, the trial judge must presume that the parent acts in the childís best interests with regard to nonparental visitation and must place the burden on the nonparent to prove that the parent is being unreasonable

Only Kennard and Justice Carlos Moreno voted to review Punsly v. Ho (2002) 105 Cal.App.4th 102.

The decision overturns an order by a San Diego Superior Court judge giving Bernard and Marilyn Punsly a fixed monthly visit with their granddaughter along with scheduled weekly telephone visits.

The child, Kathryn Punsly, is the daughter of Manwah Ho and the late Richard Punsly, who was divorced from Ho in 1992 and died of cancer four years later. His parents, who live in the Los Angeles area, sought relief under the statute after Ho objected to a visitation schedule proposed by their lawyers.

Ho, who complained theat the proposed schedule was inflexible, and that the grandparents tended to use inappropriate language in front of the child and were not respectful of Kathrynís biracial heritage, proposed quarterly visitation instead.

The Court of Appeal cited a U.S. Supreme Court decision holding that a fit parent has a constitutional right to determine when grandparents may visit with the child, unless the parent is so unreasonable that the grandparentsí interests justify the stateís intrusion into what the court said was the exercise of fundamental parental rights.


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