The opinion of the court was delivered by: MARILYN L. HUFF
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiff Howard Kreisner
brought this suit against the City of San Diego, alleging the City is violating the establishment clauses of the federal and state constitutions. The action involves the constitutionality of a display shown in the Organ Pavilion of Balboa Park during the month of December by a private organization, the Christmas Committee.
Judge William B. Enright originally heard the case and granted the City's motion for cross-summary judgment in 1989. Judge Enright found the Park facilities are a "public forum," available to both religious and nonreligious groups. Judge Enright concluded the City's open access policy accommodates "both the free speech and the establishment of religion issues of the First Amendment." The plaintiff then appealed the case to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit heard oral argument on April 3, 1991, and subsequently remanded the case to the district court for further factual findings. Specifically, the Ninth Circuit instructed the district court to determine:
What are the policies of the City of San Diego with respect to granting permits for the use of Balboa Park. . . . If it is contended that there are oral or partially oral policies, the court shall specify any evidence indicating the establishment of such policies and any evidence indicating that the public has been made aware of such policies. The court may make any further findings on factual developments which the parties regard as material to the issues in this appeal.
The Ninth Circuit amended the order to allow the district court to "amend its conclusions of law in light of any new factual findings."
Upon remand, Judge Enright recused himself, and the case was transferred to this court. This court held hearings in which oral and written testimony was received on November 1, 1991 and November 8, 1991. Following a review of the evidence received at those hearings, the files and records of the action, and the trial court's Memorandum Decision and Order dated November 8, 1989, this court adopts Judge Enright's Memorandum Decision as the opinion of this court as to the federal claims, attached as exhibit "1," and further makes the following additional findings of fact and conclusions of law. This court agrees with Judge Enright that under the circumstances of this case:
In sum, the City's practice of allowing the Committee to display a nativity scene in Balboa Park does not violate the Establishment Clause. Given the public forum aspect of the present case, the City's open access policy accommodates both the free speech and the establishment of religion issues of the First Amendment.
A. CITY'S POLICY REGARDING PERMITS IN BALBOA PARK
1. In 1988, the City created a system of permits to facilitate and accommodate uses of the Park and Park facilities. Relevant to this case, the City provides five different types of permits: (1) the park use permit, which allows for a partly exclusive, short-term grant for weddings, picnics, or other fairly large gatherings of individuals; (2) the park facility use permit, which allows exclusive use of a Park facility; (3) the right-of-entry permit, which allows exclusive use within a restricted area for longer periods of time and issued primarily to businesses and organizations; (4) the nonexclusive use and occupancy permit, which allows ongoing use of a permanent facility on the condition the facility is open to the public; and (5) the special use permit, which allows exclusive use of a site for Park-endorsed activities, such as square dancing exhibitions.
2. The regulations governing the appropriate type of permit for a particular activity are set forth in the Park and Recreation Department's fees and charges schedule. Beyond these regulations, the City has not presented any evidence of a written policy regarding the issuance of permits.
3. This court finds that the City's policy regarding the issuance of permits is an oral policy. Specifically, the City's policy is one of "first come, first served," allowing access to the Park or Park facilities to any group or individual who reasonably first requests use of the area and complies with the Park and Recreation Department's ...