En Banc Ninth Circuit Rejects Sale of San Diego City Land With Cross (NINTH CIRCUIT OUTRAGE)

Metropolitan News-Enterprise ^ | June 27, 2002 | KENNETH OFGANG

[aristeides]

The Pledge decision was not the only anti-religion decision the Ninth Circuit handed down on June 26th. On the same date, the court issued an opinion ruling unconstitutional a sale of a parcel of land by San Diego that would have allowed a Latin cross on the land to stand. The ruling appears questionable to me, on a quick reading.

[aristeides]

The court decided this case on the basis of its interpretation of the California state constitution. I do not understand why a federal court would decide this case on the basis of state law.

[colorado tanker]

Might as well change the name from the SCOTUS to the U.S. Court of Corrections for Erroneous Rulings from the Ninth Circuit Court of Appeals.

[aristeides]

The Supreme Court has already denied certiorari (i.e., declined to take the case) at two earlier stages in this case. Let's hope they take it now. They can only review a limited percentage of the Ninth Circuit's wacky decisions.

[bvw]

So you think this is exactly the kind of states' rights red meat of an appeal the current Supreme Court would love to take so as knock the 9th another hole in the head while re-furbing the powers retained by the States?

[T. P. Pole]

The problem with the second sale, Graber said, was that if a bidder wanted a secular memorial, it would have to have enough money to outbid the field and to remove the cross, whereas the memorial association or another bidder wanting the keep the cross as part of the memorial could do so at no additional expense.

Hey, it's no fair that I have to bid the same amount for a plot of land as somebody else does. I want to build a house, but he wants to keep it wild. I should be able to add the cost of building the house to my bid so it looks bigger.

After all, it costs me more to get my desired outcome.

[aristeides]

I don't really understand the Ninth Circuit's thinking in deciding the case on the basis of the state constitution (something on which the federal courts do not claim expertise). The decision makes no mention of any other basis of federal jurisdiction like diversity (some of the parties being citizens of different states.) I don't understand why this case was not in state court, since the plaintiffs' complaint was apparently simply that the sale violated the California Constitution, not the U.S. Constitution.

[aristeides]

Your analogy has force. The ruling looks screwy to me too.

[colorado tanker]

I'm with you. Problem is that when a case bounces around between courts like this one has, the record can become so screwed up SCOTUS won't take the case because they couldn't make a clean ruling on the issue.

So, does this mean in the Ninth Circuit a city couldn't sell a surplus school building to a parochial school? I'm having trouble with the idea that a city taking money from a religious group for the sale of property somehow advances religion.

[Texas_Jarhead]

Very well put. That logic is utterly ridiculous and absurd.

[aristeides]

The ruling might well mean that. More reason to break up the Ninth Circuit.

[rogerthedodger]

I'm not sure by what means the case actually found it's way into the federal court system, but the jurisdiction over the case and subject matter were probably provided by three means, 1) the federal courts have original jurisdiction over interpretation of the Constitution (federal question), 2) the First Amendment contains the (supposedly) relevant language prohibiting the establisment of religion, and 3) Pursuant to the "Incorporation Doctrine, " announced by the US Supreme Court in (I forget what year), the injunctions and protections of the Bill of Rights are made applicable to the states. Therefore, the law of California (statute or Constitution) cannot conflict with a provision of the United States Constitution or its amendments, which are the supreme law of the land. In the case of a conflict (or supposed conflict at least) jurisdiction lies with the federal district court to hear the case.

[Dog Gone]

It seems to me that the City could simply offer the land for sale to the highest bidder without the restriction that a war memorial be maintained there. What's wrong with that?

[aristeides]

But if you look at the en banc panel's decision (I had access to it on Westlaw, to which I cannot provide a link here,) you'll see that the court's reasoning depended not at all on the First Amendment or any other part of the U.S. Constitution. It depends entirely on the state constitution, and it says nothing about any other complaint by the plaintiffs besides the alleged violation of the state constitution. I really don't see how the court had jurisdiction.

[Myrddin]

My representative has authored a bill to break up the 9th. Let's hope it is successful.

[aristeides]

They could, and maybe that's what they'll do next. But I guess they wanted the cross preserved. I don't see anything wrong with that either.

[rogerthedodger]

maybe that issue didn't make it up on appeal. did you check the district court case? I may be missing a piece of the puzzle, but I can't immediately think of another means for getting the case into federal court. It sounds as if diversity jurisdiction would have been out, considering at least one party on either side was from California. I'd check westlaw, but I'd have to pay for it myself. I'll see if I can find the opinion elsewhere.

[rogerthedodger]

that does sound odd, though. generally if there is purely an issue of state law for some reason (usually a diversity jurisdiction case), a federal court (at least not an activist court) will certify the question to the high court of the state. but, federal courts are also presumed to have the ability to interpret state law on their own.

[aristeides]

District court decision is not on Westlaw. I think that means there was no published opinion.

[Dog Gone]

Apparently the state is not permitted to want the cross preserved. I can almost understand and accept that position based on a strict separation of church and state.

But where the court went too far was saying that the state couldn't even say that a war memorial (whether it's a cross or not) must be maintained. That's really stretching the legal point.

Maybe the 9th circuit ought to mandate that the cross be destroyed. That's what they were trying to achieve anyway through this faulty legal reasoning. Might as well be open about it.