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.
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.
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 ...