July 2004 Vol. 10 No. 2 ISSN 1087-6219
Copyright and Trademark Notice | Disclaimer

In This Issue

• Latin cross in national park violates First Amendment
• Recreational use of Sea-Doo falls under primary assumption of the risk
• Berkeley's living wage ordinance is constitutional
• Ministerial exception may provide defense to marital status discrimination
• UPDATES

Use the Newsletter Link to request a free e-mail subscription to the newsletter.

Latin cross in national park violates First Amendment

The Ninth Circuit has affirmed an injunction against the continued display of a Latin cross on federally- owned land in the Mojave National Preserve. The presence of the cross projects a message of government endorsement.

The Latin cross is the preeminent symbol of Christianity, and not a symbol of any other religion. There had been a cross at the site in question since 1934. For most of the ensuing years, there had been Easter sunrise services at the site. The Park Service had not opened the site to any other permanent displays.

It did not matter that the cross was in a remote location. What mattered was that it sat on public land.

It also did not matter that Congress had authorized the transfer of the property into private hands. The transfer might take up to two more years. Even after the transfer, First Amendment concerns might remain.

Buono v. Norton, 2004 WL 1238143 (9th Cir. Jun. 7, 2004).

Table of Cases to check current status of decisions.
Subject Index
Top of this Page

Recreational use of Sea-Doo falls under primary assumption of the risk

The First District Court of Appeal in San Francisco has ruled that a user of a Sea-Doo personal watercraft who sues for personal injuries is subject to the primary assumption of the risk defense.

Sixteen year old Adam Peart and his 13-year old cousin Jason C. were visiting the lakeside residence of the Ferros, who kept two Sea-Doos on the lake. One afternoon, Adam took off on one of the Sea- Doos, followed by Paul Ferro and Jason on the second, with Jason driving. Adam cut too closely in front of the other Sea-Doo, causing a collision. Jason sued Adam and the Ferros.

The primary assumption of the risk doctrine is an exception to the general rule that comparative fault determines the extent of a defendant's liability for a plaintiff's injuries. It is a complete defense to lawsuits based on a sports activity that is done for enjoyment, requires physical exertion and skill, and contains a potential risk of injury.

Use of Sea-Doos comes within the primary assumption of risk doctrine. Although it is not a competitive or spectator sport, it involves the use of physical skill and challenges that pose a significant threat of injury. It does not differ from other water sports that fall under the doctrine, such as tubing behind a motorboat, jet skiing, river rafting, and water skiing.

It did not matter that both operators were minors. The doctrine applies to all participants. It also did not matter that Ferro was riding with Jason. He was not a coach or instructor, and did nothing to recklessly increase the risk of harm beyond that which is inherent in the activity.

The court also rejected the argument that recently enacted statutes regulating personal watercraft had abrogated the doctrine. Although the statutes impose criminal sanctions for negligent and reckless operation of personal watercraft, there was no legislative intent to change the common law rule of primary assumption of the risk, as repeatedly articulated by the California Supreme Court.

Peart v. Ferro, 119 Cal.App.4th 60 (2004).

Table of Cases to check current status of decisions.
Subject Index
Top of this Page

Berkeley's living wage ordinance is constitutional

The Ninth Circuit has upheld Berkeley's living wage ordinance against challenges under the contract, equal protection and due process clauses of the federal and state constitutions.

Like many other municipalities around the country, Berkley adopted a living wage ordinance in response to the reality that the state and federal minimum wages have not kept pace with inflation and the cost of living. The ordinance only applied to employers that receive financial benefits from the City. The ordinance sets a minimum wage of $9.75 per hour, or $11.37 if the employer does not provide health benefits. Employees must be allowed 22 days off per year, of which 12 must be paid.

Three months after enacting the living wage ordinance, Berkeley extended it to cover employers in the Berkeley Marina with six or more employees and $350,000 or more in annual gross receipts. The marina is public trust land, on which the city expends considerable resources for maintenance and promotion.

Before enactment of the living wage ordinance, RUI had a lease with the city to construct, maintain and operate a restaurant in the marina. The federal district court granted summary judgment dismissing RUI's constitutional challenge to the ordinance. The Ninth Circuit affirmed.

Application of the contract clause of the federal constitution requires a three-step inquiry: (1) whether there is a substantial impairment of a contractual relationship, (2) whether a significant, legitimate public purpose justifies the regulation, and (3) whether the impairment is based on reasonable conditions and is appropriate to the public purpose. Here, there was no substantial impairment, because the lease with RUI did not address employee wages and benefits.

There was no equal protection violation. Although the extension of the living wage ordinance to the marina applied to a small number of private employers, there was a rational basis for singling them out because of the benefits they derived from being allowed to operate in the marina.

Although RUI contended that allowing collective bargaining agreements to opt out of the ordinance was a due process violation, there was no merit to the claim. That provision did not constitute an impermissible delegation of legislative power, but was simply a condition of the ordinance's application.

RUI One Corp. v. City of Berkeley, 2004 WL 1336657 (9th Cir. Jun. 16, 2004).

Table of Cases to check current status of decisions.
Subject Index
Top of this Page

Ministerial exception may provide defense to marital status discrimination

The Santa Ana division of the Fourth District Court of Appeal has ruled that the First Amendment driven "ministerial exception" may provide a defense to employment discrimination claims.

Hope University looks to the Bible as its "ultimate constitution," and requires its professors to accept it as the authoritative word of God. The school's purpose is to educate its students to be equipped for Christian service.

Curtis Rouanzoin and Lisa Riggs taught in Hope's Marriage and Family Therapy Department. While Rouanzoin was still married, there were rumors that the two were carrying on an affair, which they denied. After Rouanzoin divorced his wife, the two dated and ultimately married.

Hope eventually let both teachers go, on the stated ground that it did not want a married couple to constitute the entire Marriage and Family Therapy Department. There was also evidence that Hope was concerned about the perception that Rouanzoin had abandoned his wife and sons for a younger woman. The teachers sued for violation of the FEHA ban on marital status discrimination and common law wrongful termination.

The "ministerial exception" is a First Amendment doctrine that bars liability for employment decisions concerning ministers and nonordained employees whose duties are functionally equivalent to those of ministers. Since the teaching of marriage and family counseling is not necessarily religious in nature, there was a triable issue of fact that prevented entry of summary judgment for the university.

Although the professors could continue with their lawsuit, they could not base their claims for marital status discrimination on the perception that they engaged in an affair before their marriage. That motivation was not related to their marital status. Further, the FEHA limits the scope of marital status claims by providing that employers may reasonably regulate the working of spouses in the same department.

Hope Intern. Univ. v. Superior Court, 2004 WL 1368348 (Cal. Ct. App. Jun. 18, 2004).

Table of Cases to check current status of decisions.
Subject Index
Top of this Page

UPDATES

Subsequent treatment of decisions reported on in earlier issues:

Drummond v. City of Anaheim (October 2003 issue), cert. denied Jun. 21, 2004).

Weiner v. Southcoast Childcare Centers, Inc. (June 2004 issue), now reported at 32 Cal. 4th 1138 (2004).

Table of Cases to check current status of decisions.
Subject Index
Top of this Page

Privacy Policy