Monday, January 26, 2009

Standing: Injury in Fact No Longer Required: Barnes-Wallace v. City of San Diego, 551 F.3d 875 (2009)

Barnes-Wallace v. City of San Diego, 551 F.3d 875 (2009) Today, our court [Ninth Circuit] promulgates an astonishing new rule of law for the nine Western States. Henceforth, a plaintiff who claims to feel offended by the mere thought of associating with people who hold different views has suffered a legally cognizable injury-in-fact. No other circuit has embraced this remarkable innovation, which contradicts nearly three decades of the Supreme Court's []standing[] jurisprudence. In practical effect, the three-judge panel majority's unprecedented theory creates a new legal landscape in which almost anyone who is almost offended by almost anything has standing to air his or her displeasure in court. I must respectfully, but vigorously, dissent from our failure to rehear this case en banc. This opening sentence in the Barnes-Wallace opinion is astonishing not only for the vigor of its language but also for the consequences of the majority decision. What fact pattern can account for this paragraph in an appellate court decision dissenting from a refusal to hold an en banc hearing in Barnes-Wallace? Alleging violation of the Establishment Clause and the No Religious Preference Clause of the California Constitution (Art. I. Sec. 4; Art. XVI. Sect. 5) a lesbian couple and an agnostic sued the City of San Diego for leasing a portion of a public park to the Boy Scouts. According to their Complaint, both plaintiffs had visited the park and were offended by the City lease. They observed no religious symbols, the Boy Scouts opened their facility to anyone who wanted to use the land, and did not deny the use of the facilities to plaintiffs. The district court had dismissed the Complaint, the plaintiffs appealed and in the original Ninth Circuit opinion, the three judge panel affirmed the dismissal on grounds the plaintiffs suffered no injury in fact required for standing other than psychological discomfort with the Boy Scout policy excluding homosexuals; Barnes-Wallace v. City of San Diego, 471 F.3d 1038 (9th Cir. 2006). Despite that decision, the three judge panel decided to reconsider its opinion and completely changed the result ibid, 530 F.3d 776 (9th Cir. 2008). The grounds: if the plaintiffs would have visited the property (which they never did) that could arguably consist of some form of injury. Other than that, their injury consisted of an ideological disagreement, never a judicial ground for standing, i.e., the basis for filing a lawsuit requires an injury in fact. The Ninth Circuit refused to rehear the case (en banc) despite the inconsistent decisions, and refused to change the ruling. Quoting the dissent in criticizing failure of the full court to rehear the case: . . . [O]n rehearing, the majority reversed itself and adopted the theory it had initially rejected. It concluded that the Breens and Barnes-Wallace have avoided [the Boy Scouts] Camp Balboa and the Aquatic Center because they object to the Boy Scouts' presence on, and control of, the land. They do not want to view signs posted by the Boy Scouts or interact with the Boy Scouts' representatives in order to gain access to the facilities. The Article III injury-in-fact, according to the majority, was the Breens' and the Barnes-Wallace [offense] at the Boy Scouts' exclusion, and publicly expressed disapproval, of lesbians, atheists and agnostics, their aversion to the facilities, and their feelings of [unwelcomeness] there because of the Boy Scouts' policies that discriminated against people like them. Having satisfied itself that it had jurisdiction, the panel then certified the California Constitutional law questions on the merits to the California Supreme Court. Aside from the issue of standing, the three judge panel only satisfied itself of jurisdiction but certified the issue on the merits to the California Supreme Court to decide the case under California law. Unless the City petitions the Supreme Court for certiorari, this case becomes precedent for standing and opens the door to anyone who is offended by the policies of a particular group. No other federal circuit court has adopted the rationale of the three judge panel in Barnes-Wallace.

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