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March 2003 
Vol. 9 No. 3 ISSN 1087-6219
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The First District Court of Appeal in San Francisco has ruled that the First Amendment does not bar fiduciary duty claims against priests for sexually inappropriate conduct. Nonetheless, the court affirmed dismissal of the particular claim before it, because it depended upon the intensity of the plaintiff's religious beliefs.
Richelle L. was an adult parishioner at a Roman Catholic church where Reverend Namocatcat was a priest. She alleged that the priest knew that she was deeply religious, and, therefore, readily subject to manipulation and control by a pastor. He left romantic and sexual messages on her answering machine, and eventually persuaded her to have sexual relations with him.
Civil Code section 43.5 bars any claim for “seduction of a person over the age of legal consent.” However, conduct that breaches a duty independent of the seduction cause of action is actionable.
The Court of Appeal rejected Richelle's attempt to base her claim on a duty arising out of a special relationship like that of doctor-patient or attorney-client. Although those relationships give rise to malpractice claims for failure to adhere to professional standards, no such claims are available against the clergy. Judicial determinations about the standards applicable to the clergy would be incompatible with the First Amendment.
She could pursue a claim for breach of fiduciary duty arising out of a confidential relation with a parishioner, so long as the pastor's conduct was not dictated by a sincerely held religious belief. However, she did not allege her exploitation arose out of a counseling relationship. Instead, she claimed that she was susceptible to Reverend Namocatcat's advances because of the depth of her religious belief. Therefore, her claim could not be adjudicated without reference to her religious beliefs and the doctrines of her church.
Richelle L. v. Roman Catholic Archbishop of San Francisco, 106 Cal. App. 4th 257 (2003).
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The Ninth Circuit has ruled that school officials may censor a salutatorian's graduation speech, if necessary to avoid violating the Establishment Clause.
Nicholas Lassonde was one of two salutatorians for the Amador Valley High School Class of 1999. He was also a devout Christian who drafted a speech that quoted extensively from the Bible. The draft speech expressed his desire for his fellow graduates to develop a personal relationship with God through faith in Christ.
The school principal reviewed the draft with the school district's counsel, and determined that allowing Lassonde to deliver some parts of it would violate the constitutional ban on establishment of religion. They refused to allow him to give his speech unless he deleted the portions that overtly called on the graduates to turn to God and Jesus for strength.
He deleted those potions under protest, and informed the audience that he would hand out copies of an uncensored version of the speech. Further, the speech still contained references to Lassonde's personal religious beliefs. Nonetheless, he sued the district and several school officials for violating his free speech rights.
Ninth Circuit precedent makes clear that school officials may restrict student speech where necessary to avoid violating the Establishment Clause. Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092 (9th Cir. 2000). The school had legitimate concerns in this case on two grounds:
1. Allowing the speech to be given at a high school graduation ceremony would create the appearance of government sponsorship of religion.
2. In the circumstances of a graduation ceremony, there would be an impermissibly coercive effect on dissenters, requiring them to participate in a religious practice even by their silence. Although Lassonde suggested the school could have avoided the violation by disclaimer, that would not have obviated the effect on the dissenters.
Lassonde argued that the Supreme Court's recent decision in Good News Club v. Milford Central School, 533 U.S. 98 (2001) required a different result. In that case, the school refused to allow groups with religious messages to use school facilities because of Establishment Clause concerns. The Supreme Court ruled that there was no legitimate concern because participation was voluntary, and the religious activity all took place after school hours.
By contrast, Lassonde's speech took place under circumstances that clearly suggested school sponsorship, and involuntary participation in school activities.
Lassonde v. Pleasanton Unified Sch. Dist., 320 F.3d 979 (9th Cir. 2003).
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The Ninth Circuit has ruled that prison officials may make initial cell assignments based on race. The practice was reasonably related to legitimate penological interests.
When an inmate arrives at a California state prison, he is assigned to double-cell housing in the reception center for 60 days. The prison staff makes the double-cell assignments primarily based on race, out of concern that having two inmates of different races in a single cell would create conflict. After 60 days, inmates receive permanent assignments to a dormitory or to a single cell, or are transferred to another institution.
Garrison Johnson, an African American prisoner, challenged the double-cell assignment policy as a violation of the Equal Protection Clause. He had been through inmate reception centers at several prisons. At each one, he shared a cell with another African American inmate.
Many years ago, the Supreme Court struck down an Alabama statute that required segregated cell blocks. Lee v. Washington, 390 U.S. 333 (1968). Three of the justices who participated in the per curiam decision wrote in a concurring opinion that “prison authorities have the right, acting in good faith and in particularized circumstances, to take into account racial tensions in maintaining security, discipline, and good order in prisons and jails.”
In 1987, the Court promulgated a deferential test for examining the constitutional rights of prisoners. Turner v. Safley, 482 U.S. 78 (1987). A prison regulation that impinges on inmates' constitutional rights is valid if it is reasonably related to legitimate penological interests. The California policy was valid under the four factors identified in Turner:
1. The policy addressed a legitimate objective to avoid racial conflict, in a manner that did not provide any advantage or disadvantage to any particular race. Therefore, there was a valid, rational connection between the policy and a legitimate government interest.
2. Johnson had alternative means for being free of racial discrimination. The policy of cell assignment based on race only lasted 60 days. Even during that time, there were no race-based distinctions as to jobs, meals, yard and recreation time, and vocational and educational assignments.
3. If prison officials had to abandon their policy, it might compromise inmate and guard safety.
4. There were no reasonable alternatives that would accommodate Johnson's interest at de minimis cost to valid penological interests. The test is not whether the policy is the least restrictive alternative, but whether it is an exaggerated response to the government interest. Johnson did not offer any reasonable alternatives.
Johnson v. State of California, 321 F.3d 791 (9th Cir. 2003).
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The Ninth Circuit has ruled that CalTrans may not prohibit banners questioning war on highway overpasses when it allows flags to be displayed there.
After the events of September 11, 2001, private citizens hung American flags from highway overpasses in California. Amy Courtney and Cassandra Brown hung responsive banners that said “At What Cost?” and “Are you Buying this War?” Their banners were removed.
CalTrans does not prohibit display of the American flag. Display of any other sign requires an encroachment permit, which is only available for signs designating turnoffs for special events. CalTrans bases its ban on signs on concerns that falling objects may endanger motorists, and that signs might distract motorists.
Because the state has not designated highway overpasses as available for public discourse, they are nonpublic fora. Speech restrictions in nonpublic fora are constitutional only if they are reasonable in light of the purpose served by the forum.
CalTrans's regulations were not reasonable, because there was no evidence that flag display posed any less danger than display of other banners.
Restrictions in nonpublic fora must also be viewpoint neutral. CalTrans's regulations were not. The flag is a viewpoint as the symbol of a nation, which carried a particularly powerful message in the wake of September 11. It did not encompass the dissenting message that Courtney and Brown wished to convey. The fact that Courtney and Brown could have purchased billboard advertising did not defeat their right to relief. Imposing a financial burden on expression is no different from any other form of restriction.
Brown v. California Department of Transportation, 2003 WL 1090164 (9th Cir. Mar. 13, 2003).
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The California Supreme Court has ruled that the Fair Employment and Housing (FEHA) has always covered conditions that limit a major life activity. Proof of a substantial limitation was never required.
Since 1992, FEHA has defined disability as a condition that “limits” a person's ability to participate in major life activities. Although the Supreme Court used the phrase “substantially limited” in Cassista v. Community Foods, Inc., 5 Cal. 4th 1050 (1993), it was not necessary to the decision. When the legislature in 2000 added language to emphasize the omission of “substantial,” it was not changing the law.
Colmenares v. Braemar Country Club, Inc., 29 Cal. 4th 1019 (2003).
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Subsequent treatment of decisions reported on in earlier issues:
Advanced Bionics Corp. v. Medtronic, Inc. (January 2003 issue), rehearing denied (Mar. 5, 2003).
Dee v. Vintage Petroleum, Inc. (February 2003 issue), now reported at 106 Cal. App. 4th 30, petition for review filed (Mar. 17, 2003).
Deutsch v. Turner Corp. (February 2003), now reported at 317 F.3d 1005 (9th Cir. 2003), rehearing denied (Mar. 6, 2003).
Granowitz v. Redlands Unified Sch. Dist. (February 2003 issue), petition for review filed (Feb. 24, 2003).
Mackey v. Department of Corrections (February 2003 issue), petition for review filed (Mar. 7, 2003).
McMahon v. Albany Unified Sch. Dist. (February 2003 issue), rehearing denied (Jan. 28, 2003), review denied (Mar. 19, 2003).
Miranda v. Clark County (February 2003 issue), now reported at 319 F.3d 465 (9th Cir. 2003).
Mitsubishi Materials Corp. v. Superior Court (February 2003 issue), now reported at 106 Cal. App. 4th 39 (2003), petition for review filed (Mar. 18, 2003).
Rene v. MGM Grand Hotel, Inc. (December 2002 issue), cert. denied, 2003 WL 1446593 (9th Cir. Mar. 24, 2003).
Washington Legal Foundation v. Legal Foundation of Washington (February 2001 issue), en banc decision affirmed, 2003 WL 1523550 (U.S. Mar. 26, 2003).
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