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Trunk v. City of San Diego

November 6, 2007


The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge


On September 8, 2006, Plaintiffs Steve Trunk and Philip Paulson filed their First Amended Complaint ("FAC") seeking declaratory and injunctive relief. Specifically, Plaintiffs seek a declaration that transfer of a certain parcel of land on Mt. Soledad to the federal government violates Plaintiffs' rights under the U.S. and California constitutions, and that the statute authorizing it be declared void ab initio. Plaintiffs also sought both a preliminary and permanent injunction prohibiting Defendants from displaying the cross on government property. On September 22, 2006, this case was consolidated with Jewish War Veterans of the United States of America, Inc., et al., v. Rumsfeld, Case no. 06cv1728, filed August 24, 2006 (now Jewish War Veterans of the United States of America, Inc., et al. v. Gates) ("Jewish War Veterans").

The FAC was subject to a motion to dismiss for lack of jurisdiction, filed October 10, 2006. Amicus Pacific Justice Institute filed a brief on October 13, 2006 in support of Defendants' motion to dismiss. The Court issued an order on November 7, 2006, noting the amicus brief had raised the issue of Article III standing, and directed the parties to address this issue either in their briefing on the motion to dismiss, or in a subsequent motion. The Court denied the motion to dismiss on November 29, 2006 by minute order following a hearing.

On May 31, 2007, the consolidated cases were reassigned to Judge Larry Burns. On June 4, the Court ordered Plaintiff Trunk to show cause why the certain claims in the FAC filed in Trunk v. City of San Diego should not be dismissed as non-justiciable.*fn1 In its order to show cause (the "OSC"), the Court noted that it did not intend to revisit the earlier rulings regarding standing, but that additional questions going to the issue of subject matter jurisdiction presented themselves. In particular, it was not clear to the Court Trunk had standing to pursue all the claims set forth in the FAC. The Court further directed the parties to address certain questions it appeared had not been adequately briefed.

The Court thereafter held a status conference at which all parties were represented, and at which the OSC was discussed. Thereafter, the Court issued a scheduling order for briefing on the OSC and other matters, and the parties filed their briefing in response to the OSC. Although the OSC was specifically directed to Trunk, the other parties and the amicus were directed or permitted to submit briefing, and did so.

I. Legal Standards

Standing is a jurisdictional requirement, and a party invoking federal jurisdiction - i.e., Trunk - has the burden of establishing it. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). Standing is a "threshold question in every federal case." Warth v. Seldin, 422 U.S. 490, 498 (1975). Federal courts are required to examine jurisdictional issues including standing, even sua sponte if necessary. B.C. v. Plumas Unified School Dist., 192 F.3d 1260, 1264 (9th Cir. 1999). The presence of a political question is likewise a jurisdictional issue. If Trunk, the only remaining Plaintiff raising claims in the FAC, lacks standing, or if claims in the FAC present a political question, they must be dismissed as non-justiciable. No GWEN Alliance of Lane County, Inc. v. Aldridge, 855 F.2d 1380, 1382 (9th Cir. 1988) (citation omitted). If both questions are presented, the Court should address the issue of standing first. Id.

Even though Trunk cites California law, he must show he has standing sufficient to satisfy federal standards, regardless of whether he had standing under California law in preceding actions. Lee v. American Nat'l Ins. Co., 260 F.3d 997, 999--1000, 1001--02 (9th Cir. 2001). Accord Wheeler v. Travelers Ins. Co., 22 F.3d 534, 537 (3d Cir. 1994) (citing Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804, 105 S.Ct. 2965, 2970, 86 L.Ed.2d 628 (1985)) (holding that standing to bring an action in federal court is determined under federal, not state law). To show he has Article III standing, Trunk must establish three things:

First [he] must have suffered an injury in fact - an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of . . . . Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Lujan, 504 U.S. at 560--61 (citations and quotation marks omitted). Each element must be supported in the same way as any other matter on which the Plaintiff bears the burden of proof. Id. at 561 (citations omitted). Here, Trunk must adequately allege injury such as would give him standing. Id. (citation omitted).

Even though other parties briefed this issue, the burden is ultimately on Trunk to demonstrate he has standing. The Court thus looks first to Trunk's response to the OSC, to see whether he has established this Court's jurisdiction to consider his claims.

II. Discussion

H.R. 5683, enacted as Public Law 109-272, purports to take the property at issue here to be used as a veterans' memorial. As the FAC frames it, Trunk's primary injury consists of the imminent harm he will suffer if the property at issue is taken by the United States with the large cross in place, in order that the property will be used as a veterans' memorial. His claim, in other words, is that the taking of the property, by itself, violates the Establishment Clause of the U.S. Constitution. Trunk has also asked for an injunction prohibiting Defendants from displaying the cross on the site, which is essentially the same relief sought in Jewish War Veterans. (FAC at 11:13--14.) The OSC was specifically directed, however, at Trunk's challenge to the federal government's acquisition of the property.

The Court's ruling in this order is compelled by Paulson v. City of San Diego, 475 F.3d 1047, 1048 (9th Cir. 2007). There, the Ninth Circuit set forth several holdings binding on this Court. First, the City of San Diego (the "City") has been completely divested of any interest in the property at issue here by unilateral action of the federal government without the City's involvement. Id. at 1048--49. Second, previous injunctive relief requiring the removal of the cross from the property at issue was granted to enforce provisions of the California state constitution, to which the federal government is not subject. Id. at 1048. Taken together, these two holdings make clear any claim Trunk may have had based on violations of the California state constitution is now moot and any future relief Trunk may obtain must be based solely on federal law. No party has argued the taking at issue here removed the property from the effects of federal law, including the U.S. Constitution's Establishment Clause. This Court therefore lacks jurisdiction to entertain questions of whether the taking violated the California constitution, or to grant relief based on events that were the subject of earlier litigation. DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S.Ct. 1704, 1705, 40 L.Ed.2d 164 (1974) (per curiam) (holding federal courts lack jurisdiction to decide moot questions). These holdings also make clear the taking was the work of the federal government and therefore not "fairly traceable" to any action by the City. See Lujan, 504 U.S. at 560.

The OSC took care to point out the fact that a large cross is located on particular mountain is not an Establishment Clause violation, nor was government ownership or non-ownership of land on Mt. Soledad, nor were mere efforts by officials or voters who wished the cross to remain where it was. The Establishment Clause violation, if any, consists of government endorsement of religion. How the U.S. government may use the property, assuming the property is successfully acquired, is to be decided at a later stage.

The FAC says this action arises under the Establishment Clause of the U.S. Constitution as well as certain provisions of the California state constitution. (FAC at 1:22--26.) To the extent Trunk seeks to invalidate the transfer, it is clear the state constitutional provisions cannot give rise to a cause of action and, as pointed out by the Ninth Circuit, such a claim is moot. Paulson v. City of San Diego, 475 F.3d at 1048. It is likewise clear Trunk has no standing to bring any claim against the City arising out of the transfer, because the transfer is not "fairly traceable" to any action by the City. Id. at 1048--49; see also Lujan, 504 U.S. at 560. The OSC therefore also specifically directed Trunk to focus on actions taken by the United States, rather than the City, and on the U.S. Constitution rather than on the California state constitution. (OSC at 5:1--17.)

A. Theories of Standing

Trunk has alleged or alluded to three theories of standing, although he does not clearly differentiate among claims to which each theory might apply. He alleges general taxpayer standing, although the injury as he frames it is the transfer of the land, not the illegal expenditure of tax money. He alleges standing as a result of being denied use of the veterans memorial as it now exists. He has also suggested that the transfer itself gave him standing, because it prevented the enforcement of an injunction requiring the removal of the cross.

1. Denial of Use

Trunk alleges he is a veteran and a resident of San Diego and would visit the memorial if the cross were removed. While this may affect his standing to challenge how the veterans memorial is operated, see Buono v. Norton, 212 F. Supp.2d 1202, 1212--13 (C.D.Cal. 2002) (holding that presence of cross prevented plaintiff from freely using the public land), it has no bearing on whether he has standing to challenge the taking of the property. The taking itself merely transfers ownership and does not by itself affect whether Trunk will be able to use the memorial. Trunk concedes he has no interest in seeing the memorial operated by the City rather than the federal government. (Trunk's Response to OSC, at 5:12--13.)

2. Taxpayer Standing

Trunk has also alleged status as a taxpayer, because he pays federal, state, and local taxes. The Supreme Court has carved out a narrow exception to the general bar on taxpayer standing. In Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), the Supreme Court recognized taxpayer standing to bring Establishment Clause challenges to expenditures under the Taxing and Spending Clause of the U.S. Constitution, Art. I, ยง 8. 392 U.S. at 105--06. Trunk may have standing under this ...

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