Date: 05-15-2007

Case Style: Ernesto R. Vasquez v. Los Angeles County, et al.

Case Number: 04-56973

Judge: Richard R. Clifton

Court: United States Court of Appeals for the Ninth Circuit on appeal from the Central District of California, Los Angeles County

Plaintiff's Attorney:

Robert J. Muise (argued), Edward L. White III, Thomas More Law Center, Ann Arbor, Michigan, for the appellant.

Defendant's Attorney:

Raymond G. Fortner, Jr., County Counsel; Gary N. Miller, Assistant County Counsel; Jennifer A. D. Lehman (argued), Deputy County Counsel, Office of the County Counsel, Los Angeles, California, for the appellees.

John C. Eastman and Manuel S. Klausner, Orange, California, for amici curiae the Claremont Institute Center for Constitutional Jurisprudence and the Individual Rights Foundation, Los Angeles, California.

Description:

Plaintiff-Appellant Ernesto R. Vasquez appeals the district court's dismissal of his 42 U.S.C. § 1983 action for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Vasquez alleges that Defendants, the County of Los Angeles ("LA County") and the members of the LA County Board of Supervisors, violated the Establishment Clause of the First Amendment by removing the image of a cross from the county's official seal. Specifically, Vasquez alleges that Defendants' removal of the cross from the seal conveyed a statesponsored message of hostility toward Christians. Because we conclude that Defendants did not violate the Establishment Clause, we affirm the district court's order dismissing Vasquez's complaint with prejudice.

I. BACKGROUND

According to Vasquez's briefs and the record, the version of the LA County Seal that included the image of the cross was first adopted on January 2, 1957, and contained "symbols of historical and cultural significance."1 In addition to the cross, which represented the "influence of the church and the missions of California," the seal also depicted the Roman Goddess Pomona,2 engineering instruments, the Spanish galleon San Salvador, a tuna, a cow, the Hollywood Bowl, two stars (representing the county's motion picture and television industries), and oil derricks. A black and white image of the 1957 seal is attached as Appendix A to this opinion.

In 2004, Defendants revised the seal. First, Defendants removed the cross from the seal and substituted the image of Mission San Gabriel, the first mission established in the county.3 Second, Defendants replaced the image of Pomona with that of a Native American woman holding a basket. Third, Defendants deleted the image of the oil derricks altogether. A black and white image of the 2004 seal is attached as Appendix B to this opinion.

According to Defendants, their decision to remove the cross from the seal was motivated by a desire to "avoid a potential Establishment Clause violation . . . and [to] affirm [the county's] neutrality." Plaintiff Vasquez contends, however, that Defendants' decision to remove the cross was motivated by their disapproval of, and hostility towards, the Christian religion. He further alleges that Defendants' decision to remove the cross was improperly influenced by the American Civil Liberties Union, which had threatened to sue Defendants over the presence of the cross on the seal as an impermissible preference for Christianity.

Vasquez is a resident and employee of LA County, and he identifies himself as a "devout Christian." On June 4, 2004, Vasquez filed this action against LA County and the members of the LA County Board of Supervisors, seeking relief under the Establishment Clause of the First Amendment, as applied to the states through the Fourteenth Amendment. Defendants promptly filed a Rule 12(b)(6) motion to dismiss Vasquez's complaint for failure to state a claim for which relief can be granted. Before the district court ruled on Defendants' motion, Vasquez filed a First Amended Complaint. In the amended complaint, Vasquez alleged that Defendants' act in "singling out the cross for removal from the LA County Seal" conveyed a state-sponsored message of hostility towards Christians and sent a clear message to Christians that they were outsiders, not full members of the political community. Vasquez claimed that he was injured by Defendants' conduct because he had "daily contact" with the revised seal and was forced to "alter his behavior to avoid this direct injury." For relief, Vasquez requested that the district court: (1) enjoin Defendants' removal of the cross from the seal; (2) issue a declaratory judgment holding Defendants' removal of the cross from the seal to be unconstitutional; and (3) uphold the constitutionality of the 1957 version of the seal containing the cross. Defendants responded with a second Rule 12(b)(6) motion.

The district court granted Defendants' motion and dismissed Vasquez's complaint without leave to amend on October 19, 2004. According to the district court, Vasquez's complaint failed to state a claim for which relief can be granted because: (1) Vasquez did not have standing to bring the Establishment Clause challenge; (2) Defendants' substitution of the cross with the mission rendered Vasquez's Establishment Clause challenge moot; and (3) the substance of Vasquez's Establishment Clause challenge lacked merit.

Vasquez timely appealed the district court's order of dismissal.

* * *

Outcome: In sum, although we conclude that Vasquez’s Establishment Clause claim should not have been dismissed for lack of standing or for mootness, we hold that the district court did not err in dismissing Vasquez’s claim on the merits. Accordingly, we affirm the order of the district court dismissing Vasquez’s Establishment Clause claim with prejudice. AFFIRMED.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None