Metropolitan News-Enterprise


Friday, April 3, 2009


Page 3


S.C. Declines to Hear Suit Over Lease of City Land for Scout Camp




The California Supreme Court has declined to involve itself in a dispute over whether the state Constitution allows public land to be leased to organizations that discriminate on the basis of religion or sexual orientation.

The justices, at their weekly conference Wednesday in San Francisco, voted unanimously to decline the Ninth U.S. Circuit Court of Appeals’ request that it decide a certified question.

The court’s decision to stay out of the suit by agnostic and gay plaintiffs against the Desert Pacific Council of the Boy Scouts of America follows the filing in January of a dissenting opinion by six Ninth Circuit judges, who argued that the question should not be certified because the plaintiffs lacked standing to sue.

 The suit concerns the Scouts’ lease, for nominal rent, of Camp Balboa in San Diego’s Balboa Park and the Youth Aquatic Center on Fiesta Island, also in San Diego. Other than when Boy Scouts events are being held, the facilities, on land leased for a nominal amount, are open to the public.

The plaintiffs filed suit in 2000, arguing that because the Boy Scouts exclude atheists, agnostics, and homosexuals from membership, leasing public lands to the organization at below-market rates violates various provisions of federal, state, and city law. U.S. District Judge Napoleon A. Jones granted summary judgment to the plaintiffs, ruling that the leases violate the Establishment Clause of the U.S. Constitution and the state Constitution’s bans on government aid to religion and government preferences based on religion.

Following Jones’ decision, the city exercised its right to terminate the leases, although the scouts were allowed to stay on as month-to-month tenants. The city agreed to settle out of the case by paying $950,000 in legal fees and costs to the local ACLU affiliate, which represents the plaintiffs.

The Boy Scouts, however, appealed, and in December 2006, the Ninth Circuit panel—consisting of Judges Marsha Berzon and Andrew Kleinfeld and Senior Judge William C. Canby Jr.—certified the state constitutional issues to the California Supreme Court over Kleinfeld’s dissent.

Last June, the panel denied rehearing, explaining that the plaintiffs suffered cognizable harm because their choice not to use the facilities was made “because they are offended by the Boy Scouts’ exclusive, and publicly expressed disapproval, of lesbians, atheists, and agnostics.”

The Ninth Circuit earlier this year denied en banc rehearing, but Judge Diarmuid F. O’Scannlain dissented, joined by Kleinfeld and Judges Carlos Bea, Consuelo Callahan, Jay Bybee, and Sandra Ikuta.

O’Scannlain called the plaintiffs’ theory of standing “unprecedented” and said “[i]t splits standing law at the seams, forcing open the courthouse doors to plaintiffs without concrete, particularized injuries.”

He mused:

“Does this mean that an animal rights activist may sue the owner of a hot dog stand located on government property for buying beef from ranchers in violation of FDA health requirements, even if the activist has never visited the stand? Should the activist so much as allege that she wants to visit the stand but is offended by the stand owner’s implicit endorsement of how range cattle are treated in Kansas or by the owner’s reluctance to hire PETA activists, the majority, it seems to me, would roll out the red carpet.”

The case is Barnes-Wallace v. City of San Diego. The Ninth Circuit case is No.  04-55732.

In other conference action, the justices:

•Declined to review a ruling by Div. Six of the Court of Appeal for this district, which upheld a multimillion dollar award against the Vons Companies for sexual harassment and retaliation.

The appellate panel affirmed a Ventura Superior Court judgment in favor of fired grocery clerk James Stevens against the chain. Stevens was awarded $2.4 million in compensatory and punitive damages, and his attorneys were awarded more than $750,000 in fees.

Presiding Justice Kenneth Yegan, in an unpublished opinion, said Stevens had produced sufficient evidence for a jury to conclude that he was fired because he had complained about inappropriate conduct by a store manager. Stevens charged that the reason given by the company—that he violated policy by giving unsalable merchandise to charity instead of returning it to headquarters—was a pretext.

The case is Stevens v. Vons Companies, B196755.

•Declined to review a ruling by this district’s Div. Five allowing a judgment creditor to recover attorney fees and costs incurred in post-judgment bankruptcy proceedings.

In Chinese Yellow Pages v. Chinese Overseas Marketing Service Corporation, 170 Cal.App.4th 868, the court cited Code of Civil Procedure Sec. 685.040 in holding that recovery of reasonable attorney fees and costs was permitted under after a bankruptcy proceeding has been dismissed at the debtor’s request and the automatic stay has expired.

The attorney fee dispute was governed by California, not federal, law, the court held.


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