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Barlow v. County of San Diego

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 28, 2008

MINDY BARLOW AND DALIA R. SMITH, PLAINTIFF,
v.
COUNTY OF SAN DIEGO; MICHAEL RODDY, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS THE EXECUTIVE OFFICER OF THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO; AND DOES 1 THROUGH 20, INCLUSIVE, DEFENDANTS.

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

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS FIRST AMENDED COMPLAINT SUPERIOR COURT OF CALIFORNIA, [Dkt No. 13]

This 42 U.S.C. § 1983 civil rights action is before the Court on defendants' FED.R.CIV.P. ("Rule") 12(b)(6) Motion To Dismiss the First Amended Complaint ("FAC") for failure to state a claim upon which relief can be granted ("Motion"). The FAC alleges eight causes of action asserting constitutional violations arising from the denial of certain Superior Court employees' request to use court facilities for weekly Bible study meetings. Plaintiffs name as defendants the San Diego County Superior Court and the Executive Officer of that court. They seek injunctive relief, declaratory relief, and nominal damages. Plaintiffs filed an Opposition to the Motion, and defendants filed a Reply. Pursuant to Civ. L. R. 7.1(d)(1), the Court finds the issues presented appropriate for decision on the papers and without oral argument. For the reasons discussed below, the Motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

Mindy Barlow ("Barlow") and Dalia R. Smith (collectively "Plaintiffs") are two court reporter employees of the San Diego County Superior Court. They have sued the Superior Court and Michael Roddy, individually and in his official capacity as the Executive Officer of the San Diego County Superior Court (collectively "Defendants"), alleging violations of their rights under the First and Fourteenth Amendments to the United States Constitution and under the California Constitution, Article I, §§ 2, 4, and 7, associated with Defendants' denial of permission for Plaintiffs and others to assemble inside the courthouse at lunchtime to hold weekly Bible study. In particular, Plaintiffs invoke their free speech, free exercise, equal protection, and due process rights, as well as alleging Defendants' conduct violates the Establishment Clause for purportedly preferring nonreligion to religion.

The FAC alleges defendant Roddy's predecessor gave permission to a Superior Court judge's clerk sometime during the year 2000 to hold Bible study over the lunch hour in an available jury room. Plaintiffs were among about twelve court employees who, "of their own volition and without solicitation or advertisement," regularly attended the weekly Bible study between 2000 and April 2006. FAC ¶¶ 10-13. Plaintiffs describe the meetings as providing "valuable encouragement and spiritual fulfillment to its participants," who believe "gathering together for discussion, Bible study, worship, and fellowship is an important component to their religious beliefs and is a biblical mandate." Participants discussed "healthy living, lifestyle choices, and physical, mental, and spiritual health from a biblical perspective." FAC ¶¶ 28-30.

In April 2006, a Deputy Sheriff informed Barlow that individuals without keycard access were not allowed entrance to the back hallways, where the jury rooms are located. Members of the Bible study asked about the use of a courtroom instead for their meetings. Court administrators informed them court policy did not allow Bible studies in courthouse facilities because of a concern regarding the "separation of church and state." The Bible study group has not reconvened inside the courthouse since then. FAC ¶¶ 12-13. In May 2006, Barlow received an e-mail from the court's then-Assistant Executive Officer, Ray Sorenson, confirming Bible study meetings in any courtroom were contrary to court policy. Barlow searched the court's Personnel Rules, but found no policy prohibiting the Bible study group from meeting on court premises. FAC ¶¶ 14-15. On June 2, 2006, Mr. Sorenson informed Barlow the Superior Court Administration was looking into the issue, and on September 29, 2006, he informed her the court was in the process of writing a policy that would cover the issue of "nonbusiness use" of court facilities. FAC ¶¶ 16-17.

On November 13, 2006, the court adopted Administrative Policy ("AP") 4.6, Use Of Court Facilities, attached as Exhibit "A" to the FAC. FAC ¶¶ 17-18. The provisions of AP 4.6.II.B permit court employees to use "court facilities" (described as including "any open room, chambers, or area within a building in which court business is conducted") for celebrations of "personal milestones commonly celebrated in the workplace such as birthday parties, baby or wedding showers, and retirement celebrations, as long as the event does not interfere with the business of the court." FAC ¶¶ 19-20, Exh. "A". Plaintiffs' requested non-business use of court premises does not fall into the category of "personal milestone" celebrations and thus is not covered by AP 4.6.II.B. The written policy also formalized in a subsequent section a reservation process applicable to all requests by employees, the public, or any other person or entity, to use a "court facility" for any other purpose:

C. Requests to Use Court Facilities

1. All requests by employees for events other than those addressed in paragraph B above, and all requests by government or outside agencies, or by the public to use courthouse meeting rooms, unassigned courtrooms, offices or other public or non-public areas of any court facility, must be submitted in writing. The request must include a description of the program or service, and must be submitted preferably 30 days in advance of the desired date of use to the Assistant Executive Officer of the division in which the facility is located, who will evaluate the request using all of the following factors:

a. Protection of the integrity of the judicial process, including public trust and confidence in the impartiality, lack of bias or discrimination, and fairness of the judicial system;

b. Safety and security of the people and property within the courthouse and its perimeter;

c. Whether the program or service advances the administration of justice and is useful to a significant number of litigants;

d. Whether the program imposes any potential costs or liability on the court;

e. Whether the program or service is conducted for profit; and

f. Whether constitutional, statutory, or other legal requirements prohibit the court from granting use of its facilities.

FAC ¶¶ 20-21, Exh. "A", AP 4.6.II.C (emphasis added).

In mid-November 2006, pursuant to that policy, Barlow submitted a written request to hold Bible study meetings during her lunch hour in an open jury room. FAC ¶ 23. On January 25, 2007, the then-new (and now former) Assistant Executive Officer, Stephen Cascioppo, met with Barlow to tell her the request was denied on the basis of separation of church and state and pursuant to AP 4.6.II.C.1(f). Mr. Cascioppo's oral notification was followed by a February 1, 2007 written denial letter referencing the policy.*fn1 FAC ¶¶ 23-25, Exh. "B." By letter dated February 26, 2007, Barlow asked Mr. Cascioppo to reconsider the administration's position "and allow our Bible Study to meet once again." FAC Exh. "C." She also informed him the group had contacted the American Center for Law and Justice (ACLJ), an organization she represents "has been established to protect religious and constitutional rights," and the ACLJ told them "our Bible Study is protected by the First Amendment and that, under that protection, our group has the right to meet on court grounds during our lunch hour." FAC ¶ 26, Exh. "C." The letter references an enclosed "article taken from the ACLJ's website regarding a Bible Study being held in a St. Charles County, Missouri, courthouse we believe is exactly on point with our situation here in our San Diego County courthouse." Barlow's letter referred to "excerpts from the ACLJ's letter" that allegedly "address the grounds for our Administration's denial of our request." FAC Exh. "C."

The referenced article is not attached to the FAC letter exhibit. Barlow asked that the court's local legal department review the article to educate the court administration and "to alleviate any constitutional concerns it may have." FAC Exh. "C."

In a letter dated March 14, 2007, Mr. Cascioppo acknowledged receipt of Barlow's letter and the "two articles" she enclosed. FAC Exh. "D." He stated he read the articles "with interest, however it has not changed my conclusion that allowing religious use of court premises is not in the best interests of the San Diego Superior Court under the criteria of its Administrative Policy, Use of Court Facilities, 4.6.II.C.1." FAC Exh. "D" (emphasis added). He characterized the courthouse as not public premises, and explained in terms tracking certain factors enumerated in the policy:

First, the premises of the court are not public, and the court does not wish to open them up generally to public activities. This would be required in order to ensure public trust and confidence in the impartiality, lack of bias or discrimination and fairness of the judicial system. Second, the proposed use does not advance the administration of justice, and is not useful to a significant number of litigants. The premises are better preserved for the uses for which the property has been lawfully dedicated. Finally, the request may impose high potential costs or liability on the court. I trust you can appreciate my desire to avoid embroiling the court in potentially expensive and protracted litigation.

FAC Exh. "D" (emphasis added).

The FAC alleges "during the time relevant to this action," Defendants have allowed in court facilities: weekly meetings of Weight Watchers, characterized as "a public organization" which "does not advance the administration of justice;" occasional meetings of the Boy Scouts of America, characterized as "both a public organization and does not advance the administration of justice;" "other organizations to meet or hold non-court related events;" and "members of the public, as well as employees, to participate and hold [unspecified] events." FAC ¶¶ 31-34. The FAC does not allege any faith-based meetings, other than Plaintiffs', have been approved or disapproved under AP 4.6.*fn2

An "Allegations of Law" section in the FAC contends Defendants' conduct is causing Plaintiffs "irreparable harm to their federal and state constitutional rights" until "enforcement of the administrative policy is enjoined." FAC ¶¶ 35-37. Plaintiffs assert eight causes of action predicated on denial of their request to hold Bible study in the courthouse, the first five under the federal Constitution's First and Fourteenth Amendments and the last three under the California State Constitution, Article 1, §§ 2. 4. and 7, respectively: First, violation of First Amendment free speech rights; Second, violation of the First Amendment free exercise clause; Third, violation of the Fourteenth Amendment equal protection clause; Fourth, violation of the Fourteenth Amendment due process clause; Fifth, violation of the First Amendment establishment clause; Sixth, violation of freedom of speech; Seventh, violation of the right to free exercise of religion; and Eighth, violation of the rights of due process of law and equal protection. FAC pp. 7-13.

Plaintiffs seek an Order: permanently enjoining enforcement of AP 4.6 "to the extent that it discriminates on the religious content or viewpoint of speech," and "to the extent that it prohibits Plaintiffs from using the jury room for a Bible study;" entering a declaratory judgment "that AP 4.6 is facially unconstitutional and violates Plaintiffs'" constitutional rights or, if AP 4.6 is not found to be facially unconstitutional, a declaratory judgment "stating that AP 4.6, as applied to Plaintiffs, is unconstitutional and violates" their constitutional rights; and awarding nominal damages and costs and expenses of suit, including attorneys' fees pursuant to 42 U.S.C. § 1988 and Cal. Code Civ. P. § 1021.5. FAC pp. 13-14.

Defendants move to dismiss the action in its entirety alleging failure to state a claim on which relief can be granted under any of Plaintiffs' theories, and advancing among other things an Establishment Clause defense.

II. DISCUSSION

A. Legal Standards

A Rule12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Rule 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, -- U.S. --, 127 S.Ct. 1955, 1964 (May 21, 2007), quoting Conley v. Gibson, 355 U.S. 41, 47 (1957). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," the grounds to support entitlement to relief "must be enough to raise a right to relief above the speculative level." Bell Atlantic, 127 S.Ct. at 1964-66 (citations omitted), abrogating the formulation in Conley, 355 U.S. at 45-46.*fn3 Dismissal under Rule 12(b)(6) does not require appearance, beyond a doubt, that plaintiff can prove no set of facts in support of a claim, but "when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, 'this basic deficiency should . . . be exposed at the point of minimum expenditure of time and money by the parties and the court.' " Id. (citations omitted).

Thus, a complaint may be dismissed where it presents a cognizable legal theory, but fails to plead essential facts under that theory. Robertson v. Dean Witter Reynolds, Inc.,749 F.2d 530, 534 (9th Cir. 1984); see Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). Dismissal is also warranted where the complaint lacks a cognizable legal theory. Robertson,749 F.2d at 534; see Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law"). In determining whether the complaint states a claim, the court must assume the truth of all factual allegations and must construe them in the light most favorable to the nonmoving party, including all reasonable inferences to be drawn from the facts alleged. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996); Cedars-Sinai Medical Center v. National League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007). However, legal conclusions need not be taken as true merely because they are cast in the form of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987); see also Transphase Systems, Inc. v. Southern California Edison Co., 839 F.Supp. 711, 718 (C.D. Cal. 1993) (the court does not "need to accept as true conclusory allegations . . . or unreasonable inference") (citation omitted); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003).

"Generally, the scope of review on a motion to dismiss for failure to state a claim is limited to the contents of the complaint." Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006), citing Warren, 328 F.3d at 1141 n. 5. Nevertheless, "[a] court may consider evidence on which the complaint 'necessarily relies' if: (1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion." Id., citing Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir.1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir.2002); see also Warren, 328 F.3d at 1141 n. 5. "The court may treat such a document as 'part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6).' " Id., quoting United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.2003). When a Rule 12(b)(6) motion is granted, leave to amend is ordinarily denied only when it is clear that the deficiencies cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).

B. First Amendment Standard: Government Employee Or Forum Analysis

In support of their Motion, Defendants identify two possible analytical approaches to determine whether the FAC states a claim predicated on First Amendment violations. First, they contend dismissal is warranted under the balancing test of Pickering v. Bd. of Educ., 391 U.S. 563 (1968), applicable in the context of a government employer's regulation of its employees' speech. Alternatively, if the Court rejects the Pickering test in these circumstances, they contend dismissal is also warranted applying traditional "forum analysis" legal standards. Mot. 11:5-8.

Defendants argue "[t]his case involves a government employer's regulation of its own employees' speech in the workplace, a non-public forum," so the "Pickering balancing test applies." Reply 1:9-12; Mot. 4:26-5:1 ("In the government employee context, the Pickering balancing test supplants the traditional 'forum analysis' approach to free speech issues"). Government entities are afforded wider latitude in regulating the speech of their employees than the speech of the public at large, with such restrictions subject to less strict judicial scrutiny.

In Pickering, the Supreme Court considered a First Amendment challenge by a teacher dismissed from his public school employment after he sent a letter to a local news outlet critical of proposals to raise new tax revenues for the schools. The Court held the teacher's exercise of his right to speak on issues of public importance may not furnish a basis to terminate his employment because statements by public officials on matters of public concern must be accorded First Amendment protections, even if they are critical and directed at their employer. Pickering, 391 U.S. at 574. The speech at issue did not impede the teacher's proper performance of his daily classroom duties or interfere with the regular operation of the schools generally. The Court found the school administration's interest was, therefore, not significantly greater than its interest in limiting similar comments by any member of the general public, and consequently the teacher could not constitutionally be dismissed from his position on that basis. Pickering, 391 U.S. at 572-73, 567-68, 574.

At the same time it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possess in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.

Pickering, 391 U.S. at 568 (emphasis added); see also City of San Diego v. Roe, 543 U.S. 77, 82 (2004) (reaffirming the use of the Pickering balancing test to "reconcile the employee's right to engage in speech and the government employer's right to protect its own legitimate interests in performing its mission").

The Pickering doctrine establishes employees cannot be forced to relinquish their First Amendment rights simply because they have the benefit of public employment, but the public employer can regulate workplace speech if it justifies its action and its interests outweigh those of the employee. See Tucker v. State of Cal. Dept. of Educ., 97 F.3d 1204, 1210 (9th Cir. 1996). In Tucker, a state agency employee brought an action against his employer alleging violation of his First Amendment rights on grounds his employer's orders banned all speech in the nature of religious advocacy, oral or written, in the workplace, with agency clients or others, and banned display of religious materials outside employees' cubicles or offices. That court found: "Although the government may have legitimate interests in preventing a number of the activities in which Tucker has engaged or wants to continue to engage, the challenged orders are overbroad and impermissibly infringe on First Amendment rights," reversing the district court's grant of summary judgment for the government and directing entry of summary judgment in favor of plaintiff.*fn4 Id. at 1208.

The Tucker court's first step was "to separate the doctrines that are applicable here from those that are not." Tucker, 97 F.3d at 1209. The plaintiff in Tucker contended the government employer "had created a limited purpose public forum in its offices by allowing its employees both to discuss 'public questions when they assemble informally at their desks, drinking fountains, lunch rooms, copy machines, etc.' and to display written materials in and around their offices and cubicles." Tucker, 97 F.3d at 1209. "Assuming that Tucker and his co-workers talked about whatever they wanted to at work (before the passage of the challenged order), and that they posted all sorts of materials on the walls, that still would not show that the government had intentionally opened up the workplace for public discourse." Id. The Tucker court rejected the employee's argument that strict scrutiny applied in evaluating the employer's orders, relying on Cornelius v. NAACP Legal Defense Fund, 473 U.S. 788, 802 (1985) for the proposition "the government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse." Id.

The Tucker court also rejected the state's argument the restrictions should be considered time, place, and manner restrictions because "the time, place and manner test is only applicable to speech regulations that are content neutral." Tucker, 97 F.3d at 1209-10. Restrictions on expression are content neutral if they are "justified without reference to the content of the regulated speech" Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984). "Because the orders here regulate only a certain type of expression, based on its content -- religious expression -- they are not content neutral" because the employer "specifically target[ed] religious speech and no other." Tucker, 97 F.3d at 1209-10. For that reason, the employer's orders failed both the content-neutral test and the Free Exercise burden test of only "incidental" restriction on the employee's religious practice. Id.

The state also unsuccessfully argued the orders "serve[d] the state's compelling interest in remaining neutral on religious matters and avoiding the establishment of religion." Tucker. 979 F.3d at 1212. In reliance on Widmer v. Vincent, 454 U.S. 263, 273 (1981)*fn5 and Rosenberger v. University of Virginia, 515 U.S. 819 (1995),*fn6 the Tucker court observed there must be "a 'plausible fear' that the speech in question would be attributed to the state" in order to sustain an Establishment Clause argument. Id. If there is "no real likelihood" the speech would be perceived as "either endorsed or coerced by the State," the prohibited conduct would not give the impression of carrying the "impermissible 'imprimatur of state approval on religious sects or practices' " prohibited by the doctrine of separation of church and state. Id.

In the end, Tucker adopted the standard of review governing employee speech in the workplace, rather than forum analysis. Applying Pickering, Tucker held the state's justifications and asserted interests did not outweigh the employees' expressive rights because the banned expression did not have a "necessary [adverse] impact on the actual operation of the Government."*fn7 Tucker, 979 F.3d at 1214, quoting Pickering, 391 U.S. at 571. "Although we recognize that the state has a legitimate interest in avoiding the appearance of supporting religion and in furthering the efficiency of the workplace, the state interests here are insufficient to support the ban on religious advocacy . . . ." Id. at 1217, 1210 ("the speech is religious expression and it is obviously of public concern").*fn8

Inasmuch as "other student publications were free to discuss the topic of religion from a myriad of views other than the prohibited perspective, the University had discriminated on the basis of viewpoint." Faith Center Church Evangelistic Ministries v. Glover, 462 F.3d 1194, 1208 (9th Cir. 2006), opinion amended and superseded on denial of rehearing, 480 F.3d 891 (9th Cir. 2007), cert. den., 128 S.Ct. 143 (U.S. Oct. 1. 2007), summarizing the holding in Rosenberger. See Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 393 (1993) (applying the Rosenberger test to unanimously hold denial of access to a school facility by a religious group seeking to show a film series on child rearing from a Christian perspective because of the school district's policy barring use of the rooms for religious purposes "discriminate[d] on the basis of viewpoint [by] permit[ting] school property to be used for the presentation of all views about family issues and child rearing except those dealing with the subject matter from a religious standpoint").

In reliance on Berry v. Dep't of Soc. Servs, 447 F.3d 642 (9th Cir. 2006), Plaintiffs argue traditional forum analysis standards, rather than the Pickering balancing test, must be applied to resolve the parties' dispute. Opp. pp. 5-6. In Berry, a Social Services employee displayed religious items in his cubicle and discussed religion with the agency's clients. Mr. Berry also organized a monthly employee prayer meeting to take place in a particular conference room in the agency's facility. The prayer meetings were voluntary and were held at lunch time. Berry, 446 F.3d at 646. The Berry court addressed several free speech and free exercise issues raised by the public employer's restrictions, affirming a grant of summary judgment to the employer and a denial of summary judgment for the employee.

Berry applied the Pickering balancing test to uphold the agency's rule forbidding employees to discuss religion with clients: "While it allowed employees to discuss religion among themselves, it avoided the shoals of the Establishment Clause by forbidding them from discussing religion with its clients." Berry, 447 F.3d at 657; see Waters v. Churchill, 511 U.S. 661, 668 (1994) (for a government employee's speech to be protected, "the speech must be on a matter of public concern, and the employee's interest in expressing herself on this matter must not be outweighed by any injury the speech could cause to 'the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees' ") (citations omitted). Berry also applied the Pickering test to uphold the agency's rule restricting employees from prominently displaying religious items: "Similarly, the Department allowed employees to display religious items, except where their viewing by the Department's clients might imply endorsement thus evading the reef of the Establishment Clause." Id. "[T]he Pickering balancing approach applies regardless of the reason an employee believes his or her speech is constitutionally protected," whether as commentary on matters of public concern or whether the employee asserts First Amendment protections for religious speech. Berry, 447 F.3d at 649-50.

The Berry court did, however, rely on traditional forum analysis, rather than the Pickering balancing test, to resolve the constitutional issues associated with the use of work site premises for prayer meetings applying, inter alia, Cornelius, 473 U.S. 788. The public employer's rules "did not prohibit its employees from holding prayer meetings in the common break room or outside," but closed a certain conference room "to employee social or religious meetings such as might convert the conference room into a public forum."*fn9 Berry, 447 F.3d at 657, 653 (finding from an analysis of the uses of the conference room it "remains a non-public forum," because "the only permitted use of the room that was not generally associated with the Department's administrative duties was for birthday parties and baby showers"). Berry concluded, applying forum analysis standards, those restrictions on the civil rights of its employees to exercise their religion using a government facility with circumscribed permitted uses "were reasonable, and the Department's reasons for imposing them outweigh any resulting curtailment of Mr. Berry's rights under the First Amendment of the United States Constitution . . . ."*fn10 Id.

The AP 4.6 provisions at issue in this case, on their face, apply equally to employees and to any other person or entity requesting to use any area of court facilities not engaged for official court business, using a formal reservation process. This is therefore not a case where employees are singled out for more restrictive treatment or where the court administration is attempting to "regulate its employee's conduct to ensure the effective performance of its operations" in an attempt by the court administration to preserve the state employer's interest in the efficient performance of its public services. Waters, 511 U.S. at 668 (citation omitted). The policy expressly applies not only to Superior Court employee requests, but also to requests from "government or outside agencies, or by the public to use courthouse meeting rooms, unassigned courtrooms, offices or other public or non-public areas of any court facility. . . ." AP 4.6.II.C. Accordingly, the court is persuaded forum analysis rather than the Pickering test balancing the interests of an employee against the interests of a public employer provides the proper standards to address this dispute.*fn11

C. Forum Characterization And Constitutional Review Standards

1. Options & Consequences

The challenged policy applies to "court facilities," identified as "courthouse meeting rooms, unassigned courtrooms, offices or other public or non-public areas of any court facility." AP 4.6.II.C.1. The only areas of the courthouse Plaintiffs seek to use are locations where they allegedly held Bible study sessions in the past (i.e., jury rooms from 2000 to 2006) or have attempted to obtain permission to use (i.e., individual courtrooms not in use for court business). The parties do not agree on the appropriate characterization of those premises for forum analysis purposes.

The first step in assessing First Amendment claims related to speech restrictions on government property is to "identify the nature of the forum, because the extent to which the Government may limit access depends on whether the forum is public or nonpublic." Sammartino v. First Judicial District Court, County of Carson City, 303 F.3d 959, 965 (9th Cir. 2002) quoting Cornelius, 473 U.S. at 797 (forum analysis begins by "identify[ing] the nature of the forum" and "whether the forum [at issue] is public or non-public"); see DiLoreto v. Downey Unified Sch, Dist. Bd. of Educ., 196 F,3d 958, 964 (9th Cir. 1999) ("forum analysis has traditionally divided government property into three categories: public fora, designated public fora, and nonpublic fora"); see also Hopper v. City of Pasco, 241 F.3d 1067, 1074 (9th Cir. 2001) ("[T]he two main categories of fora are public (where strict scrutiny applies) and non-public (where a more lenient 'reasonableness' standard governs)," with government property further divided for forum analysis purposes "into three categories: [traditional] public fora, designated public fora, and nonpublic fora"), quoting DiLoreto, 196 F.3d at 964.

In characterizing a forum, courts consider "the selectivity with which the forum was open to particular forms of expression." Hooper, 241 F.3d at 1078, citing Arkansas Educ. Television Com'n v. Forbes, 523 U.S. 666, 679 (1998). "[T]he more restrictive the criteria for admission and the more administrative control over access, the less likely a forum will be deemed public." Id. Another factor courts consider is "whether the expressive activity is consistent with the principal function of the forum," an inquiry that "focuses on the specific space to which the would-be speaker seeks access" . . . tak[ing] into account the context of the property as a whole." Id., citing Cornelius, 473 U.S. at 804, DiLoreto, 196 F.3d at 968.

The government's intent informs the characterization of what type of forum has been established. Courts examine the terms on which the forum operates to determine whether it is a traditional or designated public forum or whether it is a nonpublic or limited public forum. See Hopper, 241 F.3d at 1074.

"The government, no less than a private owner of property, has the power to preserve the property under its control for the use to which it is lawfully dedicated." [United States v.] Grace, 461 U.S. [171,] 178 [(1983)]. . . "It is the 'location and purpose' of the property and the government's subjective intent in having the property built and maintained, that is crucial to determining the nature of the property for forum analysis." Jacobsen [v. Bonine]. 123 F.3d [1272,] 1274 [9th Cir. 1997].*fn12

Sammartino, 303 F.3d at 966, 972 (emphasis added);*fn13 see also Forbes, 523 U.S. at 679-80 (discussing the effect of selective access on forum analysis in reliance inter alia on Cornelius, Widmer, and Perry to conclude: "These cases illustrate the distinction between 'general access' . . . which indicates the property is a designated public forum, and 'selective access,' . . . which indicates the property is a non-public forum") (citations omitted).*fn14

Once the nature of the forum is identified, courts determine whether the challenged speech restrictions are justified under the corresponding constitutional standard. Cornelius, 473 U.S. at 797. At one end of the spectrum, speakers can be excluded from a public forum only when necessary to serve a compelling state interest and when the exclusion is narrowly drawn to achieve that interest. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983). At the other end, the government is subject to the least amount of scrutiny in its access decisions related to nonpublic fora, violating the First Amendment only "when it denies access. . . to a speaker solely to suppress the point of view he espouses on an otherwise includible subject." Cornelius, 473 U.S. at 806. That distinction is not determinable from the simple fact the government has opened a nonpublic forum to expressive activity. Courts must examine the government's restriction for viewpoint neutrality and reasonableness in light of the purpose served by the forum. DiLoreto, 196 F.3d at 965.*fn15

"The reasonableness analysis emphasizes the consistency of the limitation in the context of the forum's intended purpose." Cogswell v. City of Seattle, 347 F.3d 809, 817 (9th Cir. 2003), citing DiLoreto, 196 F.3d at 967-68 ("reasonableness analysis focuses on whether the limitation is consistent with preserving the property for the purpose to which it is dedicated"). The nature and function of the location as a whole is relevant to consideration of the reasonableness of governmental exclusions. See Good News Club v. Milford Central School, 533 U.S. 98, 139 (2001) (the government can exclude certain subject matter or activities it deems inconsistent with the forum's purpose, so long as the it does not discriminate against a speaker's viewpoint).

The government is free to restrict access to a non-public forum, as long as the restrictions are reasonable, and are not an effort to suppress expression merely because public officials oppose a speaker's viewpoint. Cornelius, 473 U.S. at 806 ("Although a speaker may be excluded from a non-public forum if he wishes to address a topic not encompassed within the purpose of the forum . . . or if he is not a member of the class of speakers for whose especial benefit the forum was created . . ., the government violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject"); see Cogswell, 347 F.3d at 814 ("Under this reasonableness test, the State can restrict access to a limited public forum as long as (1) the restriction does not discriminate according to the viewpoint of the speaker, and (2) the restriction is reasonable"), citing Perry, 460 U.S. at 46; see also Good News Club, 533 U.S. at 106-07 (holding the University of Virginia's denial of funding to a student newspaper because of its Christian editorial viewpoints, where the school funded other editorial viewpoints, was impermissibly viewpoint discriminatory); see also Rosenberger, 515 U.S. at 828-29 ("It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys," but may permissibly target subject matter).

"The principle that has emerged from our cases 'is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.' " Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 394 (1993) (citation omitted). "To discriminate 'against a particular point of view . . . would . . . flunk the test . . . [of] Cornelius, provided that the defendants have no defense based on the establishment clause.'" Id., quoting May v. Evansville-Vanderburgh School Corp., 787 F.2d 1105, 1114 (7th Cir. 1986).

The issue of the restriction's viewpoint neutrality therefore turns on the nature of the forum in relation to the subject matter limitation -- if the speech at issue does not fall within an acceptable subject matter otherwise included in the forum, the State may legitimately exclude it from the forum it has created. However, if the speech does fall within an acceptable subject matter otherwise included in the forum, the State may not legitimately exclude it from the forum based on the viewpoint of the speaker.

Cogswell, 347 F.3d at 815, 816-17 (holding the restriction prohibiting candidate criticism of an opponent in the limited public forum of the voter's guide "acceptably limits the subject matter of the forum to candidate self-discussion," and plaintiff's submission "discussed matters outside the scope of the limited public forum and, therefore, could properly be rejected," as well as finding the governmental restriction reasonable "in light of the purpose of the forum and all of the surrounding circumstances"), citing Perry, 460 U.S. at 46, and quoting Cornelius, 473 U.S. at 789.

Although the "coherence of the distinction between 'content discrimination' and 'viewpoint discrimination' is tenuous," content discrimination occurs when the government chooses the subject matter that may be discussed, while viewpoint discrimination is directed to specific positions taken on the matter. Giebel v. Sylvester, 244 F.3d 1182, 1188, 1188 n.10 (9th Cir. 2001) (recognizing that "the level at which 'subject matter' is defined can control whether discrimination is held to be on the basis of content or viewpoint"); see Good News Club, 533 U.S. at 108.*fn16

a. Traditional Public Forum

The courthouse is intended for the conduct of official judicial business, not for traditional public discourse. The parties concur the San Diego County Superior Court facilities, like most judicial and municipal complexes, are not a "traditional public forum," and the Court agrees. Accordingly, traditional public forum analytical standards do not apply.

b. Designated Public Forum

"In addition to traditional public fora, a public forum may be created by government designation of a place or channel of communication for use by the public at large for assembly and speech, for use by certain speakers, or for the discussion of certain subjects."*fn17 Berry, 447 F.3d at 653 n. 10, citing Perry, 460 U.S. at 45-46. A "designated public forum" exists for First Amendment purposes when "the government intentionally opens up a nontraditional forum for public discourse." Hopper, 241 F.3d at 1074 (reversing a grant of summary judgment in favor of the government defendant on grounds (among others) the city's policy not to accept "controversial" works by local artists for display was a criterion insufficient to have prevented City Hall from becoming a "designated public forum" once it was opened for that purpose, so that artwork could be excluded only when necessary to serve a compelling state interest), quoting DiLoreto, 196 F.3d at 964-65. Requiring prior permission for access suggests a public forum has not been created by designation. Cornelius, 473 U.S. at 803 (holding a federal fundraising drive was not a designated public forum, emphasizing both the existence of a policy and its consistent application).

c. Non-Public Forum And Limited Public Forum

"[A] non-public forum by definition is not dedicated to general debate or the free exchange of ideas." Cornelius, 473 U.S. at 811. Limited public fora are a type of non-public forum. Hopper, 241 F.3d at 1074. "[S]ome courts and commentators refer to a 'designated public forum' as a 'limited public forum' and use the terms interchangeably." Id. However, in the Ninth Circuit, those terms are not applied interchangeably or coextensively. "Rather, a limited public forum is a sub-category of a designated public forum that 'refer[s] to a type of nonpublic forum that the government has intentionally opened to certain groups or to certain topics,' " but reserves access to it for only certain groups or categories of speech.*fn18

Hopper, 241 F.3d at 1074-75, quoting DiLoreto, 196 F.3d at 965, n.4 (the "contours of the terms 'designated public forum' and 'limited public forum' have not always been clear").

In a limited public forum, restrictions that are viewpoint neutral and reasonable in light of the purpose served by the forum are permissible, with exclusions evaluated in the same way as under non-public forum analysis. See Rosenberger, 515 U.S. at 829; Lambs Chapel, 508 U.S. at 392-93. "In a limited public forum, a lenient reasonableness standard applies to determine the validity of government regulations" when assailed by free speech challenges. Cogswell, 347 F.3d at 814, citing Cornelius, 473 U.S. at 797; Perry, 460 U.S. at 46 (1983); Hopper, 241 F.3d at 1074. "In order to preserve the limits of a limited public forum . . . the State may legitimately exclude speech based on subject matter where the subject matter is outside the designated scope of the forum." Cogswell, 347 F.3d at 815, citing Good News Club, 533 U.S. at 109; Rosenberger, 515 U.S. at 829-39 ("The necessities of confining a [limited public] forum to the limited and legitimate purposes for which it was created may justify the State in reserving it for certain groups or for the discussion of certain topics"); see also Lamb's Chapel, 508 U.S. at 394; Cornelius, 473 U.S. at 806. Expressive activity in a limited public forum accordingly may be restricted without violating the Constitution as long as the restrictions are viewpoint neutral and reasonable in light of the purpose served by the forum.

"To determine if a restriction on speech in a limited public forum is viewpoint discriminatory, we apply the guidelines established by the Lamb's Chapel line of cases." Cogswell, 347 F.3d at 815, citing Good News Club, 533 U.S. at 109, 107-08 (finding a public school's exclusion of a Christian club from meeting on its grounds viewpoint discriminatory because the school permitted non-religious groups "pertaining to the welfare of the community" to meet at the school); Rosenberger, 515 U.S. at 829-30; Lamb's Chapel, 508 U.S. at 394. "[O]nce the government has chosen to permit discussion of certain subject matters, it may not then silence speakers who address those subject matters from a particular perspective." Cogswell, 347 F.3d at 815.

A policy with a broad purpose is not dispositive of an intent to create a public forum by designation. See Good News Club, 533 U.S. at 102. Courts have found broadly worded policies create only limited public fora. Opening government buildings for some purposes -- for example, civic meetings -- but not others -- for example, religious services -- cannot be viewed as necessarily unconstitutional. See Rosenberger, 515 U.S. at 829 (the government is free to reserve access to a limited public forum "for certain groups or for the discussion of certain topics," as long as the "rationale for the restriction" is not the "specific motivating ideology or the opinion or perspective of the speaker"). Exclusion from a particular forum based on content discrimination "may be permissible if it preserves the purpose of that limited forum;" in contrast, viewpoint discrimination "is presumed impermissible when directed against speech otherwise within the forum's limitations." Id.

D. Parties' Forum Arguments

The challenged use policy applies to "court facilities," identified as "courthouse meeting rooms, unassigned courtrooms, offices or other public or non-public areas of any court facility." AP 4.6.II.C.1. Plaintiffs contend Defendants' "prohibitions on religious gatherings is a content-based restriction in a designated public forum." Opp. 9:18-19 (emphasis added). They insist the FAC allegations, construed in the light most favorable to them, establish "when the Superior Court opened the court facilities to the public [for meetings], it made said facilities a designated public forum." Opp. 10:21-27 ("Defendants have allowed other organizations to meet or hold non-court related events within court facilities" and "Defendants have allowed members of the public, as well as employees, to participate and hold events within the court facilities"), quoting FAC ¶¶ 34-35. Defendants dispute that characterization, insisting the courthouse facilities are a non-public forum.

For purposes of deciding this motion, the Court accepts as true the FAC allegations "other organizations and groups, including the Boy Scouts of America and Weight Watchers, were allowed to use the facilities during all times relevant to this action." Mot. 11:18-20, citing FAC ¶¶ 32-35. The Court also concurs "[d]iscovery is necessary in order to determine whether these organizations and groups were required to obtain permission [to use the facilities] after the development of AP 4.6." Mot. 11:20-22 (emphasis added). As discussed in the next section, the Court finds an evidentiary record is also essential to ascertain how the policy has been applied, including with what consistency. Similarly, the absence of an evidentiary record regarding other uses by employees, other agencies, and the public permitted by the court administration also prevents Rule 12(b)(6) dismissal of Plaintiffs' Equal Protection or Establishment Clause claims.

E. The Absence Of An Evidentiary Record Prevents Forum Characterization

Plaintiffs argue the courthouse facilities are a "designated public forum," subjecting the AP 4.6.II.C restrictions to strict scrutiny. If the facilities are so classified, "we must decide whether the [government's] decision to exclude plaintiffs' [speech] was justified by a compelling interest." Hopper, 241 F.3d at 1075. Defendants argue the courthouse facilities are a "nonpublic forum" subjecting AP 4.6.II.C to the lower reasonableness standard for review of those restrictions. If the facilities are classified as a limited public forum, "we need only decide whether the exclusion was reasonable and viewpoint-neutral." Id.

As discussed above, "[W]e must examine the terms on which the forum operates to determine whether it is a designated public forum or a limited public forum." Hopper, 241 F.3d at 1075. "Accordingly, the Court has looked to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum," as well as examining "the nature of the property and its compatibility with expressive activity to discern the government's intent." Cornelius, 473 U.S. at 802 (government intent is the essential question in determining whether a designated public forum has been established, and how a "policy and practice" is implemented).

The "policy" and "practice" inquiries are intimately linked in the sense that an abstract policy statement purporting to restrict access to a forum is not enough. What matters is what the government actually does -- specifically, whether it consistently enforces the restrictions o use of the forum that it adopted. Thus, in Cornelius, where the Court held that a federal fundraising drive was not a designated public forum, the Court emphasized both the existence of a policy and its consistent application.

Hopper, 241 F.3d at 1075 (emphasis added); see Cornelius, 473 U.S. at 804-05 ("The Civil Service Commission . . . developed extensive admission criteria to limit access to the Campaign to those organizations considered appropriate," and "[s]uch selective access, unsupported by evidence of a purposeful designation for public use, does not create a public forum"); see also Children of the Rosary v. City of Phoenix, 154 F.3d 972, 976-77 (9th Cir. 1998) (classifying advertising panels on buses under forum analysis as a nonpublic forum, then ascertaining the relevant level of scrutiny applicable to that forum as "reasonableness" in consideration of the city's ban on non-commercial advertising on municipal buses, then determining the city properly applied the standard without viewpoint discrimination, upholding the exclusion of a religious anti-abortion ad: "a review of the city's standards and practices indicates that the city has not opened a public forum [for ads on its bus panels]" because the "city has consistently restricted political and religious advertising"); cf., e.g., Widmer, 454 U.S. at 267 (finding a clear intent to create public forum where state university had an explicit policy of making meeting facilities available to registered student groups, illustrating the converse interpretation, i.e., an explicit policy opening a forum suited to expressive activity is often taken at face value) cited for that proposition in Hopper, 241 F.3d at 1076, n.9.

Thus, consistency in application is the hallmark of any policy designed to preserve the non-public status of a forum. A policy purporting to keep a forum closed (or open to expression only on certain subjects) is not a policy at all for purposes of public forum analysis if, in practice, it is not enforced or if exceptions are haphazardly permitted.

Hopper, 241 F.3d at 1076 (emphasis added), citing Grace Bible Fellowship, Inc. v. Maine Sch. Admin. Dist. No. 5, 941 F.2d 45, 47 (1st Cir. 1991) (in public forum analysis, "actual practice speaks louder than words"); see Hopper, 241 F.3d at 1077 ("Therefore, the government's stated policy, without more, is not dispositive with respect to the government's intent in a given forum" (citations omitted).

The different procedural posture of Berry (where the court was reviewing cross-motions for summary judgment) distinguishes it from this case, where the Court must presently decide only whether the FAC states a claim upon which relief can be granted. The evidence before the Berry court permitted the determination the conference room remained a nonpublic forum for purposes of First Amendment analysis, and enabled it to demonstrate the plaintiff was denied use of the conference room "because he sought to use it for a nonbusiness-related activity, and not because that activity happened to be religious."*fn19

Berry. 447 F.3d at 654. AP 4.6.II.C, in contrast, appears to open the courthouse facilities at issue here for discretionary use, upon approval by the court administration, for purposes other than business use and employee milestone celebrations, distinguishing the forum from the Berry conference room. Inasmuch as the FAC alleges the court has permitted other groups to use the courthouse facilities for other purposes, the Court must take that allegation as true for purposes of Rule 12(b)(6) analysis, and no record is presently before the Court that would permit evaluation of the manner in which court administrators have exercised their discretion. The Court cannot characterize the forum at this time, and therefore cannot identify the proper legal standard against which to measure the challenged first amendment restrictions, precluding Rule 12(b)(6) dismissal.

F. The Challenged Policy Is Not Facially Unconstitutional

1. Text

The text of AP 4.6.II.C, in contrast to the restrictions under review in Sammartino and Tucker, does not permit the inference from its face that in implementing the policy Defendants were motivated by the nature of the message rather than the limitations of the forum or a specific risk within the forum. The policy does not expressly exclude any specific subject matters or viewpoints or particular expressive activity from the courthouse facilities. As such, the text of the policy at issue in this case is distinguishable from those in the cases discussed above, and the Court therefore rejects the argument the policy is facially invalid because it restricts free speech or free expression.

2. Discretion To Approve Or Deny Use Applications

Plaintiffs also object to AP 4.6.II.C because it purportedly grants unfettered discretion to the Assistant Executive Officer to grant or deny requests to use the public or non-public areas of any court facility. They argue the listed "factors" are insufficient to protect them from impermissible viewpoint-based discrimination. The Court finds the policy text "fetters" discretion adequately to survive a facial challenge by categorizing the kinds of limitations the Assistant Executive Officer may permissibly consider (i.e., prohibitions imposed by "constitutional, statutory, or other legal requirements"). No record is before the Court -- other than the FAC allegations that during relevant time periods other groups have been permitted access to the forum whereas plaintiffs have been denied -- as to what "distinctions" the decision-maker implementing AP 4.6 actually applies in granting or denying requests to use the facilities. The Court is therefore unable to conclude AP 4.6.II.C is unconstitutional on its face under either theory Plaintiffs advance in support of that argument.

G. "As Applied" Discrimination Analysis Requires A Factual Record Not Before The Court And Evidentiary Considerations Impermissible Under Rule 12(b)(6) Dismissal Criteria

Courts examine policies with subjective or overly general criteria, as Plaintiffs here characterize AP 4.6.II.C, for arbitrary or viewpoint discrimination in implementation. Applying Rule 12(b)(6) standards, the Court is unable to assess whether or how the access restriction factors enumerated in AP 4.6.II.C have been applied to permit or exclude uses of court premises, and whether the policy application discriminates on the basis of content or viewpoint. That distinction "is not a precise one" (Rosenberger, 515 U.S. at 831), and this is not the proceeding in which to resolve that question. In addition, absent a factual record, it is impossible to determine whether there is any basis for the Assistant Executive Officer's assertion permitting Plaintiffs' use would expose the court to liability. FAC Exh. D. "[T]he mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense" or of a certain type. Sammartino, 303 F.3d at 969, quoting Cohen v. California, 403 U.S. 15, 21 (1971) (characterized in that opinion as "stand[ing] for the proposition that even in light of the purposes of the forum, it is not reasonable to prohibit speech in courthouse hallways merely because it may offend come people's sense of decorum").

H. Defendants' Motion Is Granted In Part And Denied In Part

1. First Cause of Action

Plaintiffs' First Cause of Action alleges AP 4.6 and Defendants' enforcement of that policy violate their First Amendment rights. As discussed above, the Court finds forum analysis applies to the issues presented in these circumstances, rather than the Pickering balancing test. Having rejected the Pickering balancing test, the Court must also reject Defendants' arguments that Plaintiffs must show their interest in the speech at issue outweighs the government's need, as an employer, to regulate that speech. Mot. 1:20-2:2. In addition, absent a factual record, the Court is unable definitively to characterize the forum for purposes of identifying the appropriate legal standard to apply. Accordingly, Defendants' Rule 12(b)(6) Motion To Dismiss the First Cause of Action is DENIED.

2. Second Cause of Action

Plaintiffs assert AP 4.6 is not facially neutral nor generally applicable with respect to religion, in violation of the Free Exercise Clause of the First Amendment to the federal Constitution. FAC 8:18-23. The Court rejects Plaintiffs' argument the policy is not facially neutral, but DENIES Rule 12(b)(6) dismissal on the general applicability ground, for the reasons discussed above.

3. Third Cause of Action

Plaintiffs assert Defendants have allowed other groups and organizations to meet and hold events in court facilities "generally available to the public and court employees" while prohibiting Plaintiffs' Bible study in those same facilities. Plaintiffs thus characterize Defendants' enforcement of AP 4.6 as a violation of the Fourteenth Amendment Equal Protection Clause because it allegedly "treats the Church disparately when compared to other similarly-situated non-religious entities," without any "rational or compelling reason that would justify their policy prohibiting the Bible study and its participants from accessing court facilities . . . solely on the basis of the religious beliefs, speech, and conduct of the Bible study and its participants." FAC 9:9-22. The Court must accept as true the factual allegations of the complaint for purposes of Rule 12(b)(6) review. Without expressing any opinion on the merits, the Court cannot find Plaintiffs could prove no set of facts entitling them to relief based on the administration's actual processing of requests to use the court facilities and whether any Equal Protection issue is implicated. The Motion is accordingly DENIED with respect to this claim.

4. Fourth Cause of Action

Plaintiff's Opposition states they voluntarily withdraw their claim AP 4.6 and its enforcement violate their Fourteenth Amendment Due Process rights, but they seek to preserve leave to amend in the future. Accordingly, the Motion is GRANTED with respect to the Fourth Cause of Action, and that claim is DISMISSED, without prejudice.

5. Fifth Cause of Action

Plaintiffs allege Defendants "violate the Establishment Clause of the First Amendment to the United States Constitution" contending "AP 4.6 and the Defendants' enforcement thereof are hostile toward religion and favors [sic] irreligion over religion," the policy and the Defendants allegedly "treat the Bible study and its participants as second-class citizens of the community because of their protected religious expressions, beliefs, and conduct," and Defendants deny "equal access to an important government benefit in the form of access to this forum," purportedly conveying "a governmental message that the Bible study and its members are outsiders and not full members of the community" (FAC ¶¶ 59-62).

The Establishment Clause's two distinct guarantees are: "the government shall make no law respecting the establishment of religion or prohibiting the free exercise thereof -- both with the common purpose of securing religious liberty." Lee v. Weisman, 505 U.S. 577, 605 (1992) (including clergy who offer prayers as part of a public school graduation ceremony held to be forbidden by the Establishment Clause, because the public official's decision that prayers should be given and his selection of the religious participant are choices attributable to the state), quoting Lynch v. Donnelly, 465 U.S. 668, 678 (1984).*fn20 "[T]he Establishment Clause forbids not only state practices that 'aid one religion . . . or prefer one religion over another,' but also those that 'aid all religions.' " Id. at 609-10, Souter, J. concurring, quoting Everson v. Board of Ed. of Ewing , 330 U.S. 1, 15 (1947). "[T]he Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all." Wallace v. Jaffree, 472 U.S. 38, 52-53, 61 (1985) (striking down a state law requiring a moment of silence in public classrooms, not because the statute coerced students to participate in prayer (it did not do so), but because the manner of its enactment "convey[ed] a message of state approval of prayer activities in the public schools").

The issue presented here involves no coercive participation in a religious exercise. Rather, the court's use of premises policy is challenged as unconstitutional as applied to exclude Plaintiffs' faith-based meetings. Although the state must accommodate its citizens' religious beliefs and practices under the Constitution's free exercise and free speech principles, those principles "do[] not supersede the fundamental limitations imposed by the Establishment Clause, which guarantees at a minimum that a government may not . . . act in a way which 'establishes a [state] religion or religious faith, or tends to do so.' " Lee, 505 U.S. at 587. The Lee Court outlines the "touchstone of Establishment Clause jurisprudence:"

Neither a State nor the Federal Government can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither a State nor the Federal Government, openly or secretly, can participate in the affairs of any religious organization and vice versa.[] "In the words of Jefferson, the clause against establishment of religion by law was intended to erect a 'wall of separation between church and State.' " . . . ."The Amendment's purpose. . . was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion."

Lee, 505 U.S. at 600, Blackmun, J. concurring (footnote omitted), quoting Everson, 330 U.S. at 16, 31-32.

Nevertheless, a violation may be found if the governmental action has the " 'principal or primary effect' of advancing or disapproving of religion." Vasquez v. Los Angeles County,. 487 F.3d 1246, 1256 (9th Cir. 2007) (emphasis added), quoting Lemon v. Kurtzman, 403 U.S. 602, 612 (1971); see Brown v. Woodland Joint Unified Sch. Dist., 27 F.3d 1373, 1378 (9th Cir. 1994) (governmental action has the primary effect of advancing or disapproving religion if it is "sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the non-adherents as a disapproval, of their individual religious choices"). Although AP 4.6 appears on its face to be neutral toward religion, absent an evidentiary record regarding its implementation, the court is unable to conclude Plaintiffs' claim fails as a matter of law. Accordingly, the Motion is DENIED with respect to this claim.

6. California Constitution

Plaintiff's Sixth, Seventh, and Eighth Causes of Action are predicated on alleged violations of the California Constitution. In particular, their Sixth Cause of Action alleges AP 4.6.II.C and Defendants' enforcement of the policy "discriminate against Plaintiffs' free expression of ideas, values, thoughts, viewpoints and opinions" in violation of the Article I, § 2 California State Constitution's Freedom of Speech protections. FAC 11:9-14. Their Seventh Cause of Action alleges their rights to free exercise of religion under Article I, § 4 of the California State Constitution are violated by AP 4.6 as interpreted and enforced by Defendants. They allege the Bible study participants' free exercise of religion is substantially burdened because the policy and the Defendants: single out religious groups and organizations for discriminatory treatment; condition access to court facilities on whether the applicant intends to engage in religious speech; and discriminate against Plaintiffs "on the basis of their viewpoint on civil, moral, social, and other matters." FAC 12:9-22. Plaintiffs' Eighth Cause of Action alleges AP 4.6 is so vague and so lacking in sufficiently objective standards to circumscribe the "discretion of City officials" Defendants are allowed to "enforce the policy in an ad hoc and discriminatory manner," in purported violation of Plaintiffs' Due Process and Equal Protection rights protected by Article I, § 7 of the California State Constitution. FAC 13:2-9.

Neither side argues the outcome on any of the claims relying on the California Constitution should be different from the outcome on any of the claims asserting similar rights under the United States Constitution for purposes of Rule 12 (b)(6) analysis. See. e.g. Opp. 20:11. Accordingly, the Court does not address any distinction between the state and federal standards in deciding this Motion, and reaches the same result on the state and the federal constitutional claims. The Motion is DENIED with respect to the claims alleging violations of the California Constitution.

III. CONCLUSION AND ORDER

The Court lacks the necessary evidentiary basis to definitively characterize the forum, and therefore it cannot identify the correct legal standard to apply for purposes of determining whether Plaintiffs fail to state a claim. The absence of an evidentiary record also precludes a determination Plaintiffs' "as applied" allegations should be rejected for failure to state a claim. For all the foregoing reasons, IT IS HEREBY ORDERED:

1. The Motion is GRANTED with respect to the Fourth Cause Of Action alleging Due Process violations, with Plaintiffs' acquiescence and without prejudice.

2. The Motion is DENIED with respect to all other causes of action.

IT IS SO ORDERED.


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