Opposition Brief — Vasquez v. LOS ANGELES COUNTY, CA

a

(D FILED

OCT 29 2007

No. 07-427

In The

Supreme Court of the Anited States

ERNESTO R. VASQUEZ,

Petitioner,

V.

LOS ANGELES COUNTY, DON KNABE,

GLORIA MOLINA, YVONNE B. BURKE,

ZEV YAROSLAVSKY & MICHAEL D. ANTONOVICH,

in their official capacities as Supervisors, LA County,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF IN OPPOSITION

JENNIFER A.D. LEHMAN

Counsel of Record

OFFICE OF THE COUNTY COUNSEL

RAYMOND G. FORTNER, JR.

County COUNSEL

500 West TEMPLE STREET, SIXTH FLOOR

Los ANGELES, CA 90012

TEL: (213) 974-1908

Fax: (213) 626-2105

Counsel for Respondents

Becker Gallagher - Cincinnati, OH + Washington, D.C. - 800.890.5001

i

QUESTION PRESENTED

1) Whether this Court should review the Ninth

Circuit’s holding that a county’s decision to redesign

its municipal seal and remove a Latin cross, among

other symbols, failed to state a cognizable claim under

the Establishment Clause?

ll

TABLE OF CONTENTS

QUIS EGGY FP MMOUIVETOED oc cece wvcnwsvcesis i

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STATEMENT OF THE CASE ................ 2

REASONS TO DENY THE WRIT PETITION ... 4

I. THE NINTH CIRCUIT PROPERLY

APPLIED THIS COURT’S

ESTABLISHMENT CLAUSE

JURISPRUDENCE AND FOUND THAT

PETITIONER FAILED TO STATE A

COGNIZABLE CAUSE OF ACTION. ..... 4

A. The County’s Decision to Design A New

Seal Is Appropriately Within Its

TI. kinks Fuse nek teers 4

B. The Ninth Circuit’s Holding is Consistent

with Other Establishment Clause

en etry pte ee De ge ee on te 4

A. Dee Pee oo a 5 ee 6

ae Se ere rr 9

3. Excessive Entanglement ......... 10

ill

Il. THE COURTS RULING DOES NOT

PROMOTE HOSTILITY TOWARD

RELIGION AND ANY CONTRARY

OPINION WOULD MAKE IT VIRTUALLY

IMPOSSIBLE TO BE NEUTRAL

CONCLUSION

eo@e@eececnmesepneeeseetcepeeetexu83ev¢esb4§5uueevn# 8

iv

TABLE OF AUTHORITIES

Cases

ACLU v. Stow,

29 F.Supp.2d 845 (N.D. Ohio 1998) .........

American Family Ass’n. v. City and County of San

Francisco,

277 F.3d 1114 (9" Cir. 2002), cert. denied, 537

Fe fo eee corre eee err eT 5,7

California Association of Professional Employees

v. County of Los Angeles,

We MR UDPE TD 0 oe cect picow nna aes

Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah,

Oe er CRED ovo ceo ere rawecteeeahen

Cosgrove v. County of Sacramento,

252 Cal._App.2d 45 (1967) ..........02000-:

County of Allegheny v. ACLU,

Me PU ROD ook ko bc ere Oe vee eb ves

Edwards v. Aguillard,

PED occ hve as cv aeesebunves

Elk Grove United Sch. Dist. v. Newdow,

ne eae aw eee

Ellis v. City of La Mesa,

900 F.2d 1618 (6 Cir. 1993) ............0--

Epperson v. Arkansas,

SE ED 2 bd a dvb cb eee anew es 5,8

Friedman v. Board of County Comm. of Bernalillo

County,

761 ¥.24 777 C10" Cir. 1965) ............. 8,9

Harris v. City of Zion,

927 F.2d 1401 (7 Cir. 1990) ............. 8,9

Lemon v. Kurtzman,

408 U.S. GOZ CIG74) .. 1... cece ee. 2, 5, 6, 8-10

Lynch v. Donnelly,

ee eee ere 6

McCreary County v. ACLU,

Ue SE GE boc cw ccwcuvesesuces 1, 5-7

McGinley v. Houston,

282 F.Supp.2d 1304 (M.D. Ala. 2003), affd 361

F.3d 1328 (11" Cir. 2004), cert. denied, 540 U.S.

I ens sh ode i obedaeen 7,11, 12

Murray v. City of Austin,

947 F.2d 147 (6" Cir. 1991) .............. 8,9

Roberts v. Madigan,

921 F.2d 1047 (10 Cir. 1990), cert. denied, 505

i ee oe es cies ee 9,10

Robinson v. City of Edmond,

68 F.3d 1226 (10™ Cir. 1995), cert. denied, 517

Se a ea ek ae ee wees 8,9

vi

School Dist. of Abington Township v. Schempp,

Bie | eee arene 11

Utah Gospel Mission v. Salt Lake City Corp.,

425 F.3d 1249 (10™ Cir. 2005) .............. 7

Van Orden v. Perry,

ei 8 gk. eee rer ee ee 11

Vernon v. City of Los Angeles,

27 F.3d 1385 (9 Cir. 1994), cert. denied, 513

ST as Sosa eieeenseees 10

Wallace v. Jaffee,

ee ae EE 80 56h db ow) ve kabeweees 5

Walz v. Egg Harbor Township,

187 F.Supp.2d 232 (D. N.J. 2002), aff'd 342 F.3d

271 (3d Cir. 2003), cert. denied, 541 U.S. 936

NE ov bbe a Reread een Canes beers 10

Western Mining Council v. Watt,

643 F.2d 618 (9" Cir. 1981), cert. denied, 454

Sy ee ER io 6 ok hee see nen 6

Constitutional and Statutory Provisions

Establishment Clause ................. 1-3, 5-12

ee ee ot ee ere aes 3

Cal. Govt. Code § 25000 et seg. .............-.--- 4

ce. Ae, Sa es kodak cee ce bee 4

Vii

Rules

a ee a twa dec 3,6

1

INTRODUCTION

This case is about whether an individual has the

right to dictate by way of litigation what historical or

cultural symbols a county can place on its municipal

seal. In redesigning its municipal seal, Respondents

County of Los Angeles and County Supervisors Don

Knabe, Gloria Molina, Yvonne B. Burke, Zev

Yaroslavsky, and Michael D. Antonovich (collectively

“Respondents”) included certain historical and cultural

symbols and eliminated others. This decision is, and

should be, within the Board’s discretion.

Respondents chose to redesign the County seal to

exclude a symbol which some courts have found

unconstitutional. Among other changes, the County

replaced a Latin cross with a depiction of a mission.’

The Ninth Circuit properly found that Petitioner failed

to state an Establishment Clause violation because the

Respondents’ redesign: (1) had a secular purpose; (2)

had a secular effect; and (3) did not foster excessive

entanglement with religion.

Petitioner seeks review of the Ninth Circuit’s

decision on the grounds that the ruling “eviscerates

claims advanced under a hostility” theory and because

Establishment Clause jurisprudence allegedly “is in

disarray.” In McCreary County v. ACLU, 545 U.S. 844,

859 (2005), this Court reaffirmed the viability of the

' The constitutionality of the Latin cross on the former Los

Angeles County seal is not at issue in this case. The question is

whether the County’s decision to redesign the sea] violated the

Establishment Clause.

2

Lemon v. Kurtzman test for Establishment Clause

issues. Both the Ninth Circuit and the district court

properly applied the Lemon principles and made the

correct ruling consistent with Establishment Clause

jurisprudence. As such, review is not warranted and

the petition should be denied.

STATEMENT OF THE CASE

According to Petitioner Ernesto Vasquez’s First

Amended Complaint, Los Angeles County adopted a

County seal on March 1, 1957, that included various

symbols of historic and cultural significance to the

residents of Los Angeles County. (App. D’, p. 57a, 11.)

The seal contained depictions of Pomona (the goddess

of gardens and fruit trees); engineering instruments;

a Spanish galleon; a tuna; a cow; a depiction of the

Hollywood Bowl; two stars representing the motion

picture industry; images of oil derricks; and a Latin

cross. (App. B, p. 5a; App. D, p. 57a, J 11.) Vasquez

alleges that the Latin cross represented the influence

of the church and the missions in California. (App. D,

p. 57a, J 11.) He alleges that the symbols on the

former seal did not convey any impermissible religious

message, and sent only a “historical and cultural

message.” (App. D, p. 57a, J 11; pp. 58a-59a, 4 14.)

On June 1, 2004, the County decided to redesign

the seal. (App. D, pp. 57a-58a, J 12.) The symbols of

Pomona, the cross, and the oil derricks were replaced

by a Native American woman holding a basket and an

* The appendices referred to in this Brief are attached to

Vasquez’s Petition.

3

image of Mission San Gabriel, a California mission.

(App. B, p. 5a; App. C, pp. 32a-33a.)

Even though Vasquez contends that the former seal

contained a historical and cultural message, (App. D,

p. 57a, 7 11; pp. 58a-59a, J 14), he alleges that the

decision to redesign the seal without a cross sends a

message of hostility toward Christians in violation of

the Establishment Clause. In other words, Vasquez

claims that a seal with a cross does not constitute an

Establishment Clause violation; however, a seal that

does not contain a cross, does in fact create such a

violation.

Vasquez filed suit under 42 U.S.C. § 1983 against

Respondents alleging a violation of the Establishment

Clause. (App. D., p. 56a 7 9; pp. 60a-61a, {{ 20, 21.)

Respondents moved to dismiss in the district court

pursuant to Federal Rule of Civil Procedure 12(b). The

district court granted the motion and found that

Vasquez lacked standing and failed to state a

cognizable claim under the Establishment Clause.

(App. C, pp. 29a-52a.) The Ninth Circuit disagreed

with the trial court’s ruling on the standing issue, but

affirmed that Vasquez failed to state a cognizable

claim under the Establishment Clause. (See App. B

generally.) Vasquez now seeks review in this Court.

4

REASONS TO DENY THE WRIT PETITION

I. THE NINTH CIRCUIT PROPERLY APPLIED

THIS COURT’S ESTABLISHMENT CLAUSE

JURISPRUDENCE AND FOUND THAT

PETITIONER FAILED TO STATE A

COGNIZABLE CAUSE OF ACTION.

A. The County’s Decision to Design A New

Seal Is Appropriately Within Its

Discretion.

Initially, California Government Code § 25000 et.

seq. grants county board of supervisors broad

legislative powers, including the power to adopt a

county seal. See Cal. Govt. Code § 25004. A county

board of supervisors is entitled to exercise its

discretion in making resolutions and ordinances.

Cosgrove v. County of Sacramento, 252 Cal.App.2d 45,

50 (1967). Once exercised, legislative discretion is,

absent special circumstances, not subject to judicial

control or supervision. California Ass’n. of Professional

Employees v. County of Los Angeles, 74 Cal.App.3d 38,

43 (1977).

In this case, the Los Angeles County Board of

Supervisors’ decision regarding which historical or

cultural symbols are contained in its municipal seal is

entirely within its discretion.

B. The Ninth Circuit’s Holding is Consistent

with Other Establishment Clause Cases.

Vasquez alleges that the removal of the cross from

the County seal constitutes hostility toward

5

Christianity in violation of the Establishment Clause.

The Establishment Clause of the First Amendment

mandates governmental neutrality between religion

and non-religion, as well as between the various

religions. McCreary County v. ACLU, 545 U.S. 844,

859 (2005); Epperson v. Arkansas, 393 U.S. 97, 103-104

(1968). It prohibits government fr »m appearing to take

a position on religion or from making adherence to a

religion relevant in any way to a person’s standing in

the community. County of Allegheny v. ACLU, 492 U.S.

573, 594 (1989).

Vasquez argues in his Petition that this Court

should grant review because current Establishment

Clause jurisprudence does not adequately address

hostility claims. While Respondents agree that there

appears to be more case law on alleged religious

preference than on alleged religious hostility, existing

case law on hostility adequately addresses the issue

and review is not warranted.

The Establishment Clause applies to acts which

promote a particular religion, and also to acts which

disapprove of, or are hostile toward, religion. American

Family Ass’n. v. City and County of San Francisco, 277

F.3d 1114, 1120-1121 (9" Cir. 2002), cert. denied, 537

U.S. 886 (2002); see also Church of the Lukumi Babalu

Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993);

Wallace v. Jaffee, 472 U.S. 38, 56 (1985). In Lemon v.

Kurtzman, 403 U.S. 602 (1971), this Court established

a test for analyzing government conduct under the

Establishment Clause. Under the “Lemon test,”

government action complies with the Establishment

Clause if it: (1) has a secular purpose; (2) its principal

or primary effect neither advances nor inhibits

6

religion; and (3) it does not foster excessive

government entanglement with religion. Jd. at 612-

613. While the Lemon test has been called into

question in the past, in McCreary County v. ACLU, 545

U.S. 844, 859 (2005), this Court reaffirmed its

application to Establishment Clause questions. See

generally McCreary, 545 US. at 844.

The Ninth Circuit properly applied the Lemon test

to the case at hand and correctly found that Vasquez

failed to state a cognizable claim against Respondents

under the Establishment Clause.

1. Secular Purpose

First, the Ninth Circuit properly found that

removing the cross from the seal had a secular

purpose. The purpose inquiry asks whether the

purpose of the government action is to endorse or

disapprove of religion. Edwards v. Aguillard, 482 U.S.

578, 585. (1987). A secular purpose has to be genuine

and not merely secondary to a religious objective.

McCreary, 545 U.S. at 864. When there are both

religious and legitimate secular purposes motivating

government conduct, the existence of the secular

purpose will satisfy the first Lemon prong. Lynch v.

Donnelly, 465 U.S. 668, 680 (1984).

Vasquez claims in his Petition that the Court

improperly attributed a secular purpose to

Respondents, and that Respondents’ claim of

neutrality is simply a sham. In ruling on 12(b)

motions, courts need not accept as true unreasonable

inferences or conclusory allegations of law. Western

Mining Council v. Watt, 643 F.2d 618, 624 (9" Cir.

7

1981), cert. denied, 454 U.S. 1031 (1981). “The eyes

that look to purpose belong to an ‘objective observer,’

one who takes account of the traditional external signs

that show up in the ‘text, legislative history, and

implementation of the statute,’ or comparable official

act.” McCreary, 545 U.S at 862. Contrary to Vasquez’s

argument, courts have correctly tested Establishment

Clause issues at an early stage. See American Family,

277 F.3d at 1121-22; Utah Gospel Mission v. Salt Lake

City Corp., 425 F.3d 1249, 1258-60 (10 Cir. 2005);

McGinley v. Houston, 361 F.3d 1328, 1332, (11™ Cir.

2004), cert. denied, 540 U.S. 1000 (2003). In this case,

the County’s secular purpose is evident, not only from

Vasquez’s own allegations, but from the case law that

has deemed the presence of crosses on municipal seals

to be unconstitutional.

Initially, Vasquez’s own Complaint defeats his

claim. He alleges that the symbols on the seal,

including the cross, do not convey any improper

religious message, and are historical and cultural

symbols. (App. D, p. 57a, { 11; pp. 58a-59a, 7 14.) If

the presence of the cross on the seal does not send a

religious message, it defies reason that its removal

could be construed as hostility toward religion.

Vasquez also alleges in his Complaint that

Respondents’ decision was motivated by the threat of

litigation by the American Civil Liberties Union. (App.

D, p. 58a, J 13.) A desire to avoid litigation is a secular

purpose. Further, Vasquez alleges that the cross

symbolized the influence of the church and the

missions in California. (App. D, p. 57a, J 11.) The new

County seal contains a symbol of a mission. (App. A, p.

5a.) These allegations fail to support any reasonable

8

inference that Respondents’ decision was motivated by

hostility toward Christianity.

Further, when faced with Establishment Clause

issues, courts must be reluctant to attribute

unconstitutional motives to government actors where

there is a plausible secular purpose. American Family,

supra, 277 F.3d at 1120. Governments are required to

maintain neutrality in religious matters. See

Epperson, supra, 393 U.S. at 103-104. Case law holds

that the presence of a cross on a municipal seal may

violate the Establishment Clause. See, e.g., Ellis v.

City of La Mesa, 990 F.2d 1518 (9™ Cir. 1993) (cross

displays and city insignia with cross found to violate

Establishment Clause); Harris v. City of Zion, 927 F.2d

1401 (7" Cir. 1991) (cross on seal found to violate

Establishment Clause); Friedman v. Board of County

Comm. of Bernalillo County, 781 F.2d 777 (10™ Cir.

1985) (seal with golden latin cross found to violate

Establishment Clause); ACLU v. Stow, 29 F.Supp.2d

845 (N.D. Ohio 1998) (cross on City seal found to

violate Establishment Clause); Robinson v. City of

Edmond, 68 F.3d 1226 (10 Cir. 1995), cert. denied,

517 U.S. 1201 (1996) (presence of Latin cross on city

seal found to violate Establishment Clause); but see

Murray v. City of Austin, 947 F.2d 147 (5" Cir. 1991)

(cross on City insignia held not to _ violate

Establishment Clause).

In this case, no clearer plausible secular purpose

could exist than the County seeking to avoid a

potential Establishment Clause violation, and affirm

its neutrality by redesigning its seal. Given the above,

the Ninth Circuit properly found that Vasquez failed

to satisfy the first Lemon prong.

9

2. Primary Effect

The second question of the Lemon test considers

whether the government action advances or inhibits

religion. Lemon, supra, 403 U.S. at 612. The question

is not whether any person might perceive an action to

reflect official disapproval of a religious choice. “Nearly

any government action could be overturned as a

violation of the Establishment Clause if a ‘heckler’s

veto’ sufficed to show that its message was one of

endorsement.” Elk Grove United Sch. Dist. v. Newdow,

542 U.S. 1, 35 (2004) (O’Connor, J, concurring). The

question is analyzed from the perspective of a

“reasonable, objective observer” who is informed and

familiar with the history of the government practice at

issue. American Family, supra, 277 F.3d at 1122.

The Ninth Circuit properly found that Vasquez

failed to state a claim under the second prong as well.

A reasonable observer who is informed and familiar

with the history of the county seal would not view

Respondents’ redesign of the seal as an act of hostility

toward religion. This is especially true given that the

presence of crosses on other municipal seals have been

found to be unconstitutional. See, e.g., Robinson, 68

F.3d at 1232; Harris, 927 F.2d at 1413; Friedman, 781

F.2d at 778; but see Murray, 947 F.2d at 163. |

Simply because government conduct is directed at

religious material does not mean it automatically has

a hostile effect. In Roberts v. Madigan, 921 F.2d 1047

(10 Cir. 1990), cert. denied 505 U.S. 1218 (1992), the

Tenth Circuit held that removal of two religious books

from the classroom shelves, and instructing a teacher

to keep his bible out of sight during classroom hours

10

did not violate the Establishment Clause. The Court

noted:

The mere fact that the actions were aimed

exclusively at Christian religious materials does

not automatically mean the actions’ primary

effect was to send a disapproving message

toward Christianity.

Id. at 1055; see also Walz v. Egg Harbor Township, 187

F.Supp.2d 232 (D. N.J. 2002), affd 342 F.3d 271 (3d

Cir. 2003), cert. denied, 541 U.S. 936 (2004)

(prohibiting student from distributing religious pencils

and candy during class did not constitute hostility

toward religion in violation of the Establishment

Clause).

The Ninth Circuit properly evaluated the second

Lemon prong. A reasonable, objective, and informed

observer would find that the decision to redesign the

County seal, as well as the existence of a seal without

a cross, does not have the primary effect of advancing

or inhibiting religion.

3. Excessive Entanglement

The third prong of the Lemon test asks whether the

government act fosters excessive entanglement

between government and religion. Lemon, supra, 403

U.S. at 612-613. The entanglement prong seeks to

minimize the interference of religious authorities with

secular affairs and secular authorities in religious

affairs. Vernon v. City of Los Angeles, 27 F.3d 1385,

1399 (9 Cir. 1994), cert. denied, 513 U.S. 1000 (1994).

The Ninth Circuit properly rejected Vasquez’s

11

argument that removal of the cross from the seal

caused a cognizable claim of excessive entanglement.

Il. THE COURT'S RULING DOES NOT

PROMOTE HOSTILITY TOWARD RELIGION

AND ANY CONTRARY OPINION WOULD

MAKE IT VIRTUALLY IMPOSSIBLE TO BE

NEUTRAL.

Vasquez claims in his Petition that should this

Court permit the Ninth Circuit’s decision to stand, it

“would pave the road for removing all religious

imagery or references from official recognition because

they represent religion.” (Petition, p. 8.) However, as

Vasquez points out in his Petition, this Court has

already made clear that simply having religious

content or promoting a message consistent with a

religious doctrine does not equate with a violation of

the Establishment Clause. School Dist. of Abington

Township v. Schempp, 374 U.S. 203, 212 (1963); Van

Orden v. Perry, 545 U.S. 677, 690 (2005).

Further, and in any event, the law does not charge

government entities with a requirement to recognize

religion in their municipal seals. Vasquez essentially

argues that once a county has chosen to recognize a

symbol that may have some religious significance, the

county is bound to retain that symbol in perpetuity

because removal would constitute hostility. As

discussed above, the law does not support this position.

As set forth in McGinley v. Houston, 282 F.Supp.2d

12

1304 (M.D. Ala. 2003), affd 361 F.3d 1328 (11" Cir.

2004), cert. denied, 540 U.S. 1000 (2003):

{The Supreme] Court has made clear that the

neutrality mandated by the establishment

clause does not itself equate with hostility

towards religion. {Citations omitted]. It does not

‘accept that the concept of neutrality, which

does not permit a State to require a religious

exercise even with the consent of the majority of

those affected, collides with the majority’s right

to free exercise of religion.’ [Citations omitted]

To hold that the government cannot

endorse religion does not ‘manifest a

governmental hostility to religion or

religious teachings ...’

Id. at 1308. (Emphasis added.) Current Establishment

Clause jurisprudence adequately addresses these

issues. As such, this case does not merit consideration

by this Court.

13

CONCLUSION

For the foregoing reasons, Respondents ask that

this Court deny the petition for a writ of certiorari.

DATED: October 29, 2007

Respectfully submitted,

Jennifer A.D. Lehman

Counsel of Record

Office of the County Counsel

Raymond G. Fortner, Jr.

County Counsel

500 West Temple Street, Sixth Floor

Los Angeles, CA 90012

Tel: (213) 974-1908

Fax: (213) 626-2105

Counsel for Respondents