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December 13, 1991


The opinion of the court was delivered by: MARILYN L. HUFF


 Plaintiff Howard Kreisner *fn1" 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.




 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 permit requirements. *fn2"

 a. Penny Scott is employed by the City's Park and Recreation Department as the District Manager responsible for the permit system at Balboa Park. Scott testified at the hearing held before this court and in her declaration before the Ninth Circuit that the City's policy is first come, first served. Scott testified the City does not grant permits to the Christmas Committee on a preferential basis. This court finds Scott to be a credible witness after listening to her testimony and observing her demeanor.

 b. Jack Krasovich, the Deputy Director of the Central Division for the City of San Diego, Park and Recreation Department, is Scott's immediate supervisor. Krasovich also testified that the City's policy is to grant permits for use of the Park and its facilities on a first come, first served basis. This court also found Krasovich to be a credible witness and accepts his testimony regarding the City's policy as true.

 4. To obtain a permit for use of the park or its facilities, an individual or group must contact the Park and Recreation's office in Balboa Park. The office is open on Monday through Friday from 7:30 a.m. to 5:00 p.m., and on Saturdays and Sundays from 9:00 a.m. to 3:00 p.m. After the individual or group contacts the office by calling, writing, or visiting the office, a member of Scott's staff works with the individual or group to determine what the intended display or activity involves and the appropriate permit. The general public is welcome to contact the office with questions regarding the acquisition of permits. As to a request for a display, the office reasonably requires specific information regarding the display, such as size and dimension before issuing a permit. Among other reasons, this information is necessary to accommodate other uses and to assure access to the Park for the general public. The office only provides the permit itself and does not utilize a formal permit application form.

 5. This procedure and the City's oral policy of first come, first served has not presented a problem in the past. Until this year, as described below, the Christmas Committee has been the only entity to request use of the colonnades at the Organ Pavilion during the month of December for a display. Regarding other areas of the Park, Scott's staff has been successful in accommodating conflicting uses.

 6. The City's Park and Recreation Department at Balboa Park is open to the public seven days a week at the times noted above. Beyond the open office, there is no additional evidence that the City has publicized or otherwise taken action to inform the general public of its policy regarding the use of the Park or its facilities. This court, notes, however, that Balboa Park is frequently used by a wide variety of individuals and groups, with and without permits, for demonstrations, vigils, and many other activities. This court accepts the testimony of the City's representative that until this year, there was only one request for an unattended display at Balboa Park. This court finds it reasonable for the City to choose not to expend its resources to publicize its policies and, instead, to provide an office with access to the public to address any inquiry concerning a permit.

 7. Two to three years ago, the City agreed that a park use permit would be an appropriate permit for the Christmas Committee display. Consistent with the City's policy, the Park and Recreation office granted a park use permit to the Christmas Committee to exhibit its display in the Organ Pavilion for December 1991.


 1. The ACLU has complicated the litigation by partially attempting to obtain a permit for an unattended display at the colonnades in the Organ Pavilion for the month of December 1991. The ACLU has participated in this litigation as amicus and attended the oral argument before the Ninth Circuit on April 3, 1991, at which time the parties agreed to explore a resolution of the case. One day after oral argument, the ACLU sent its employee Janet Bergo to speak with Scott, without advising counsel for the City, about the possibility of obtaining a permit for the same time and location as sought by the Christmas Committee.

 2. On April 4, 1991, Bergo brought a letter signed by Betty Wheeler, the legal director of the ACLU, to Scott to discuss the possibility of obtaining a permit. The letter requested a permit to exhibit a display celebrating the Bill of Rights in honor of the Bicentennial of the Bill of Rights. Bergo also provided a poster, but indicated the display was not intended to duplicate the poster. Bergo did not provide, nor did the April 4th letter provide, any specifics relating to size, dimension, or other mechanics of the display. Scott asked Bergo questions about the specifics of the display, and Bergo responded that the technical details needed to be worked out. Scott testified she informed Bergo she could not issue a permit at that time without further information as to the specifics of the display. Bergo responded she would check with her supervisor and get back to Scott. Bergo testified that Scott seemed excited and enthusiastic about the idea.

 3. Later that afternoon, Bergo called Scott to inform her that the display would not be poster size, but would be quite large, similar to the Christmas Committee's display. Bergo still did not know the intended size or dimension of the display or the materials that would constitute the display. Scott credibly testified she needed further information before issuing a permit and waited for Bergo to contact her again with the necessary information. After the City's legitimate request for more specifics, the ACLU took no action to construct any display, to obtain money for the display, to obtain volunteers to design the display, or to provide further specifics for the display to the City.

 4. At the direction of Wheeler, Bergo next called Scott in July 1991 to inquire about the status of the ACLU's request. Scott responded that she was waiting for Bergo to provide her with the specifics of the display. After this conversation, Bergo testified that she was aware of the need for more specifics in order for the ACLU to obtain a permit.

 5. The ACLU, however, did not contact Scott or anyone else in the Park and Recreation office again until October 2, 1991. On this date, Wheeler sent a belated letter to Scott to "follow up" on Bergo's inquiries. This was the first letter providing some specifics as to the intended display. However, even as of October 2, 1991, the ACLU had no plans, budget, staff or materials for the display. Regrettably, the ACLU committee in charge of celebrating the Bicentennial of the Bill of Rights did not have any plans for a display at Balboa Park. By this time, the City had issued a permit to the Christmas Committee to exhibit its display during the month of December 1991.

 6. In response to Wheeler's October letter, Scott wrote to Wheeler informing her that a permit had been issued to the Christmas Committee for the Organ Pavilion colonnades for the month of December 1991. She explained the ACLU was not issued a permit because Scott was waiting for more specifics as to the ACLU's intended display. Scott had conveyed to Bergo the need for more specific information before issuing a permit. She concluded by offering to work with the ACLU to provide a suitable, alternative location. Wheeler testified an alternative location was unacceptable.

 7. This court finds the City issued a permit to the Christmas Committee for December 1991 consistent with its policy of granting permits on a nonpreferential basis. Prior to October 1991, the ACLU had failed to provide Scott with the specifics legitimately requested by Scott or to follow up on Bergo's inquiries. Bergo testified she was not aware of any plans to determine the specifics of the display or to prepare for the display, such as contacting artists or volunteers. After considering all of the evidence and observing the demeanor of the witnesses, the court concludes that the ACLU simply desired to test the City's policy without taking adequate steps to arrange for the construction of a major display or to follow up on its inadequate request for a permit.

 8. This court accepts as credible Scott's testimony that she was waiting for Bergo to provide her with more specific information and finds the City would have issued a permit to the ACLU for the colonnades of the Organ Pavilion for December 1991 had the ACLU complied with Scott's requests. In Scott's declaration to the Ninth Circuit, she also testified that she informed Bergo the Christmas Committee's display had been in the Organ Pavilion in the past, but she was unsure as to future displays because of the pending litigation. The court also finds it is reasonable, in light of the City resources potentially required, for the City to rely on individuals or groups to pursue any request for a permit and to refuse to follow up on each inadequate request.



 The court adopts Judge Enright's well-reasoned discussion of the law governing Establishment Clause claims and the application of that law to this case. The Supreme Court recently summarized the law relating to the Establishment Clause:

 [The] government may not promote or affiliate itself with any religious doctrine or organization, may not discriminate among persons on the basis of their religious beliefs and practices, may not delegate a governmental power to a religious institution, and may not involve itself too deeply in such an institution's affairs.

 County of Allegheny v. ACLU, 492 U.S. 573, 590-91, 106 L. Ed. 2d 472, 109 S. Ct. 3086 (1989). *fn3" A government's actions will violate the Establishment Clause if the action (1) does not have a secular purpose, (2) either advances or inhibits religion in its principal or primary effect, or (3) fosters an excessive entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 29 L. Ed. 2d 745, 91 S. Ct. 2105 c (1971). The Supreme Court also has scrutinized whether the practice has the purpose or effect of "endorsing" a religion by conveying a preference for a particular religion or religious belief. Allegheny, 492 U.S. at 592. Furthermore, "It is well-settled that whether a government display violates the first amendment is indeed a question of law." Harris v. City of Zion, 927 F.2d 1401, 1402 n.1 (7th Cir. 1991).

 The City has not violated the Establishment Clause by providing equal access to an open forum for a variety of groups, including religious organizations. The secular purpose behind the City's policy is to promote a diversity of ideas and cultures in an area easily accessible to the public. The primary effect of the City's policy neither advances nor endorses a particular religion. By allowing access to the forum on a first come, first served basis, the City merely provides an opportunity for individuals or organizations to engage in activities protected by the first amendment. The City also is not excessively entangled with the Christmas Committee. Other than promulgating a neutral and simplistic policy to allow for wide and easy access to the forum, the City's involvement with the Christmas Committee's display is nonexistent. Therefore, the City has not violated the establishment clause by allowing religious groups equal access to the Park. See Widmar v. Vincent, 454 U.S. 263, 271-72, 70 L. Ed. 2d 440, 102 S. Ct. 269 (1981).

 This court also concludes the City's actions do not violate California's constitutional provisions. The court is aware of the recent decision of Hewitt v. Joyner, 940 F.2d 1561, 1565 (9th Cir. 1991), in which the Ninth Circuit held that, if possible, courts should decide cases on state constitutional grounds and avoid resolving constitutional issues. California's constitution prohibits the establishment of religion and "any appearance the government has allied itself with one specific religion." Id. (citing Fox v. City of Los Angeles, 22 Cal. 3d 792, 150 Cal. Rptr. 867, 587 P.2d 663 (1978)). In Fox, the California Supreme Court held the lighting of a cross on the grounds of city hall exhibited a preference for a particular religion and, thus, was unconstitutional. In Okrand v. City of Los Angeles, 207 Cal. App. 3d 566, 254 Cal. Rptr. 913 (1989), a California appellate court addressed the constitutionality of an unlit menorah on the grounds of city hall. The menorah was part of an exhibit which included a Christmas tree. The court concluded the display of the menorah did not exhibit a preference for a particular religious belief because the city made no "effort to express some kind of subtle governmental advocacy of a particular religious message." Id. at 574.

 This case is clearly distinguishable from Fox and is more akin to Okrand. The City has not expressed a preference, nor does it appear the City has expressed a preference, for a particular religion or religious belief. The City simply provides an open forum for all groups, religious and nonreligious, to exhibit displays or conduct other activities in the park. The forum is made available to the first individual or organization that reasonably requests access and obtains a permit. Other than prohibiting obscenity and imposing reasonable time, place, and manner restrictions, the content of the message is irrelevant. The City's policy, therefore, also does not violate state constitutional provisions.

 This case also is distinguishable from the recent decision of Murphy v. Bilbray, No. 90-134 (S.D. Cal. filed Dec. 3, 1991), involving the Mount Helix and Mount Soledad crosses. The Murphy case involved permanent religious symbols located on city and county property. This case, however, involves a public forum open to both religious and nonreligious groups to exhibit displays.



 For the reasons set forth above, the court makes the factual findings as requested by the Ninth Circuit, reaffirms the court's conclusions of law on the federal claims, and makes conclusions of law on the state constitutional claims. This court concludes that the City's practice of allowing a private committee to display a nativity scene during December does not violate the federal or state constitution.

 DATED: 12/13/91



 ORDER - December 16, 1991

 On December 13, 1991, this court submitted its Findings of Fact and Conclusions of Law to the United States Court of Appeals for the Ninth Circuit. As exhibit "1," this court attached Judge William B. Enright's Memorandum Decision and Order in Kreisner v. City of San Diego, No. 88-1993 (S.D. Cal. filed Nov. 8, 1989). The court did not attach or submit any other documents to the Ninth Circuit. Counsel is responsible for submitting to the Ninth Circuit any other documents counsel believe should be considered on appeal.


 DATED: 12/13/91



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