Judge rules Fiesta Island lease unconstitutional, too

[Merlyn_LeRoy]

 

No, you really hadn't commented on the actual situation, you commented on a nonexistent situation where churches weren't subjected to the same laws as mosques. You gave me your opinion on a nonexistent problem.

 

Now, as to this question:

What is the difference between this town allowing an Islamic call to prayer and any town displaying a Nativity scene at Christmas?

 

You're comparing apples and oranges; the town is allowing ALL religious institutions to make whatever announcements they wish to, all subject to the same noise laws. When a town displays a nativity scene, the TOWN is erecting a particular religious display, which it can't do.

 

Of course, a CHURCH can erect a nativity scene on its own property, just as any church or mosque can make public announcements. However, a town can't erect nativity scenes, nor can a town broadcast a call to prayer each day for the mayor's favorite religion.

 

A town can also create a public forum open to all, which would allow churches to erect nativity scenes, and mosques to put up a display if they wanted to, and atheists to put up a display if they wanted to, etc.

 

But you don't understand freedom of speech. Allowing all people the same rights is freedom; showing favoritism (whether it's a town erecting a religious display or a town renting land for $1/year to a religious organization) is not freedom, it's using government largess to promote one organization at the expense of all the rest.

[evmori]

Merlyn,

Horsepucky! You must be good at Twister!(This message has been edited by evmori)

[Hunt]

Well, Merlyn's right about the call to worship and the church bells. In neither case is the government supporting anything--the only issue is whether they can prohibit a particular activity, and clearly they can't prohibit calls to worship if they allow church bells that are just as loud. The government can't discriminate based on the content of speech. But Merlyn's still wrong about Fiesta Island, because both he and the judge want to ignore the actual facts of the case--that the government was not supporting the Boy Scouts, but that the opposite was the case. Merlyn and the judge are pretending that the scouts got something of value from the city in a sweetheart deal--but as I keep saying, it was the scouts that approached the city with a big sack of money to build the aquatic center, and the commitment to run it. Neither the city nor any other organization lost any opportunities in this deal, but rather they gained benefits because they got at least some use from the center, which otherwise would never have existed. That's why the case will be reversed on appeal.

[Merlyn_LeRoy]

 

Well Ed, it appears you've given up on trying to put forth any sort of reasonable argument.

 

Hunt, as to the Fiesta Island lease, the judge ruled that the city couldn't arbitrarily decide to arrange a special deal with the BSA; you can't say that no other organization lost any opportunities due to this deal, because the city didn't bother to open it up to competitive bidding to find out.

 

From the judge's decision:The City selected the BSA-DPC (Desert Pacific Council) to receive the benefit of the lease without inviting bids from any other organizations. Similar to the Balboa Park lease, "[t]his preferential treatment has at least the appearance, if not the actual effect, of government advancement of religion generally and government endorsement of an organization whose religiosity is fundamental to its provision of youth services in violation of the state constitution's No Preference Clause."

 

[Proud Eagle]

First I would like to say I am not a lawyer nor am I an expert on this particular case. I have however been an observer of politics and the law since I was in 7th grade and I think I have a pretty good mind and a fair amount of common sense. I tend to try to keep my arguments and thinking from becoming too complex and legalistic. I really can't stand some of the case law that is based on legal theories that are based on other legal theories that are based on case law based on a legal theory that is itself not directly based on the law as originally written. It is such irrational thinking that leads some people to interpret the law in such a way as to believe the Second Amendment is talking about a National Guard or the State Police.

 

This really seems like a case that should be reversed on appeal. If the city had given the BSA a city pool to use for free that would be a different matter. Instead, the city gave the BSA the right to build an aquatic facility, pay for running that facility, receive first chance at the facility a couple months each year, and have the entire thing belong to the city when the agreement expires. It sounds like the city got a pretty good deal to me. There doesn't seem to be any favoritism at work to me. Now if the week before the atheist society of San Diego had made a similar offer and been rejected, there would be a valid case.

 

However, as is, it would appear to me the only potential case would be one concerning state laws on open bidding, use of public lands, and things of that nature. If the state (or city) requires open bidding on all lease agreements, then there would be a case. However, if there is no requirement that open bidding be offered, then it seems everything is OK.

 

Look at it this way, if I own a piece of properly and someone comes and offers to pay me some given sum for that property, I am in no way discriminating against others (legally or illegally) by accepting the offer. The reason is there is no other offer on the table. I didn't hide the fact that I owned the property from some group to prevent their making an offer on it. All anyone had to do was go luck up the property records, and make an offer if they chose to do so. No one else chose to make the city of San Diego an offer on this property, either at that time, or some previous time, as far as anyone knows. Therefore the city did not engage in discrimination. It accepted the best offer it had at the time.

 

Now if any of this had been done in secret or if the public had been mislead about who was leasing the property, or how much they were paying, that wouldn't work. But to my understanding all of this was done through proper public channels and open meetings were held. There was a de facto open bidding process at work in this case.

 

As for the Balboa park lease, most of what I just wrote about the Fiesta Island lease would seem to apply to it as well. In addition, it is common practice to offer an opportunity for current lease holders to renew or renegotiate their leases when they expire without any competition. This is certainly the practice in private business, and to my knowledge it is also common practice in the public sector (though of coarse such public agreements are subject to various open meetings requirements and open records requirements) when not prohibited by specifically prohibited by some sort of law or regulation governing public contracts.

 

Also, I would say that the agreements reached with all of the other private organizations through non-competitive process would have to be ruled unconstitutional (if anyone ever brings a court challenge) based on this same ruling. If non-competitive contracts are inherently discriminatory, then there are a great variety of leases and other agreements between cities, states, the federal government, and various private organizations, including churches, that would have to be nullified as well.

 

One last point, it would seem that a federal judge would be somewhat unqualified to interpret or apply state law, and that a federal ruling that is at least in part reliant upon state law would be more easily overturned on appeal than a ruling that relies purely on federal constitutional grounds.

 

Unfortunately I am unfamiliar with the various laws regulating public contracts, open meetings, open records, and public reporting requirements in the state of California and the city of San Diego, and therefore I can't say for any certainty weather or not the leases would hold up under a challenge based on such state law. However, I am convinced that there is no direct violation of the US constition in this case, unless it can be proven that the city gave the BSA a better deal than was available to other groups.

 

However, it seems this would be almost impossible to prove since the Girl Scouts, and the camp fire group have recieved almost identical deals negotiated at approximately the same time.

 

I would go even further and say that if The Secular Youth Group and The Religous Youth Group are both looking for identical use of identical public lands, they should both be given use of public lands under identical terms. To do other wise is to discriminate in favor of athiests, agnostics, and members the various "secular religious movements" (secular huminism being an example, though many argue it is a spiritual rather than religous movement, I don't think the law currently has the ability to distinguish between a spiritual and a religious movement, group, or belief) and against anyone thats religious beliefs cause them to think the youth activity in question is best conducted in a pro-religion setting. I would even gow so far as to say that The Neo-Nazi Youth Group should be able to recieve the same benefit under the same terms.

 

Under the consitution as it now stands the Patriotic America Loving Citizens and the Un-Patriotic America Hating Citizens must both be viewed equally under the law, though we haven't quite managed to get the courts to defend the rights of traditional, majority, or previously favored groups as well as they seem to defend the rights of other groups. That seems to be slowly turning around, but we aren't quite there. Now to get into some politics, I think a local goverment should be able to decide that love of country is better than hate of country and provide more favorable treatement to one group than the other, but that would require some change in the law (or case law at the very least).

[Hunt]

Merlyn quotes the judge in the Fiesta Island case: "The City selected the BSA-DPC (Desert Pacific Council) to receive the benefit of the lease without inviting bids from any other organizations." But as I keep saying, this is a ridiculous distortion of the facts. It suggests that the city was looking for somebody to lease the land to, and "selected" the Scouts. As the judge well knows--because it's in the statement of the facts in his own decision--this is not what happened at all. Again, this is why the case will be reversed on appeal.

[Merlyn_LeRoy]

It doesn't matter if the BSA approached the city with a plan first; the city still needed to solicit bids instead of setting up a special deal. And the full judge's decision does state the facts correctly - you can't go by the judge's use of the phrase "the city selected the BSA-DPC" to assume the judge got the facts wrong. The DPC approached the city, and the city (surprise, surprise) selected the DPC as the lessee of the property. They can't do it that way.

[Hunt]

I read pretty good, and I think the judge states the facts pretty clearly. But then he misstates them when he draws his conclusion. He pretends that this was a typical contract put out for bid--it wasn't. It was an offer made by the Boy Scouts, and then it was reviewed in public hearings. Remember, the judge didn't rule that this practice violated some technical bidding rules--he ruled that it was unconstitutional because it "favored" a religious organization. But obviously, it didn't. It was an arm's-length agreement that was publicly aired. Merlyn, if the lease had been put out for competitive bids, and nobody else had bid, would you still object to the existence of the lease? If you wouldn't, then this is a pretty ridiculous case, since it's quite clear that nobody else would have "bid"--because the Boy Scouts brought the money! But we know--don't we--that your position and the judge's ruling don't really have much to do with some decades-old "bidding" process.

[Merlyn_LeRoy]

...it's quite clear that nobody else would have "bid"--because the Boy Scouts brought the money!

 

No, it ISN'T "clear" that nobody else would have bid. Nobody knows, because it was never subject to bidding. You can't assume your conclusion.

[fboisseau]

Merlyn_LeRoy

 

Last time I posted the below I did not get a reply from you, instead you disappeared for a while. Will you please respond to the following.

-------

FBoisseau Posted:

Merlyn_LeRoy,

I have another question. Would you agree that the government should not treat any group differently based on its religious or lack of religious beliefs?

--------

Merlyn_LeRoy Posted:

I agree; I suppose you have something specific in mind?

----------

FBoisseau Posted:

My point is this. From what I understand is that the city has entered into similar sweetheart deals with other organizations both religious and non-religious. If that is the case then the lease agreement with the BSA should stand. The city should be required to either enter into these types of agreements with all legal organization or none at all. If the problem is that the BSA was hogging the facilities during key months then the groups that also wish to use the facilities and were denied should work with the BSA and the city to resolve that problem.

 

What this seems to others and me is not a disagreement on how BSA is handling the scheduling of use of the facilities, but an attempt to punish and discriminate against the BSA for its beliefs. If BSA refused to agree to a reasonable plan then the city would have had the right not to renew the lease.

---------

 

Will you tell me where my logic is in error.

[Merlyn_LeRoy]

 

My point is this. From what I understand is that the city has entered into similar sweetheart deals with other organizations both religious and non-religious. If that is the case then the lease agreement with the BSA should stand.

 

The judge struck down the BSA lease because it was a special deal with a religious organization; this does not mean that all special deals are unlawful, nor that leases to religious organizations are unlawful, but specifically that leases made to religious organizations without competitive bidding are unlawful.

 

Now, there may be other leases that fit that description, but that doesn't mean the BSA lease is legal, either. It may mean that the city has made unlawful leases in other cases as well.

[evmori]

I'll concede the freedom of speech issue.

 

This San Diego thing is kinda funny, though. The Supreme Court ruled the BSA was a private organization (not religious organization) and therefore could set its own membership requirements. Now a judge in the Land of Fruits & Nuts is stating since the BSA has membership requirements that one believe in God & not be a homosexual their lease is null and void! If this goes to the Supreme Court there is no way the ruling could go against the BSA!

 

Ed Mori

Troop 1

1 Peter 4:10

[Proud Eagle]

So now any contract of any sort reached between a government entity is a violation of the United States Constitution unless it was subject to competitive bidding?

 

Can anyone tell me what article and section contain open competitive bidding clause?

Oh, wait, there is none.

 

Can anyone find a federal law enacted by the Congress that says this?

Something tells me the answer is again a no.

 

This is one of the greatest farces I have seen lately. I doesn't surprise me. In fact, this is the sort of thing I have come to expect, particularly those out on the west coast.

 

Invent some totally ridiculous legal requirement to suit the ends you would like. If the judge had ruled the lease was unconstitutional because it allows for atheists to sometimes be excluded from use of the facilities, that would actually be a more legally sound ruling since that would at least be religious discrimination. However, ruling that it is religious discrimination to award a contract based on something other than competitive bidding is farcical at best. Of coarse the thing will wiggle its way through appeals for the next several years, and I am sure at least a few "higher" judges will agree.

 

Merlyn you logic is lacking on one issue. You claim you want all groups to be treated equally under the law. However, you then go one to say that only religious groups are subject to the requirement for competitive bidding. Now that would indicate it is OK to discriminate against religious groups by not offering them the same chance to place a bid that you are saying must be given to non-religious groups when a religious group is the party making the initial offer. That is clearly two separate, unequal standards. It is unfavorable to religious groups, and favors both the secular and the various anti-religious groups.

 

I submit once again, that the proper place for this to have been tried would have been a California state court. The law to be applied should have been California law. Most likely the relevant sections would be those laws pertaining to public contracts, use of public lands, open meetings, open records, and various other rules governing the way government itself works. It is quite possible these lease agreements may have violated one of those laws. However, I still cannot see any legitimate federal constitutional argument, either in the case of the plaintiff, or in the ruling of the court.

 

I continue to maintain that there was a de facto open bidding on this piece of property. The property was owned by the city. It was not leased to anyone. This was public record. Any group or individual wishing to use that property needed only to submit a proposal to the city. No one else chose to do so, which indicates there was no other interest in the property. Further, I would be willing to guess that it became public knowledge that BSA had made the offer in advance of any final decision being reached. That should certainly have prompted any other group to go ahead and submit its own proposal. However, no group did so. I guess the city could have mailed out engraved invitations to every person on the face of the planet, but chances are the same fictitious theoretical group that was unable to bid on the property the way it was done before still wouldn't have gotten the message. I think the city could have rented the Good Year blimp and had a giant sign flashing over the city saying, "The BSA wants to lease Fiesta Island. Anyone have a better idea?" The same hypothetical group still wouldn't have figured out what to do. Also, I might note, at least in the blimp example, the same judge would have ended up ruling in the same way.

 

 

[fboisseau]

Merlyn_LeRoy

 

Here is a synopses of our exchange on this subject.

 

1) You have stated that the government should not treat any group differently based on its religious or lack of religious beliefs? (See below)

 

FBoisseau Posted:

Merlyn_LeRoy,

I have another question. Would you agree that the government should not treat any group differently based on its religious or lack of religious beliefs?

--------

Merlyn_LeRoy Posted:

I agree; I suppose you have something specific in mind?

 

2) The following below those states that the state should treat a religious organization differently because of its religious beliefs. (See below)

 

The judge struck down the BSA lease because it was a special deal with a religious organization; this does not mean that all special deals are unlawful, nor that leases to religious organizations are unlawful, but specifically that leases made to religious organizations without competitive bidding are unlawful.

 

The first set of exchanges between you and me, put you in the corner of agreeing that the state should not treat a religious organization any differently then a non-religious organization. The second set of statements supports the complete opposite position.

 

Please explain how the two positions can be logically true.

 

[dsteele]

The above would be the "finders, keepers . . ." argument. I agree with it.

 

Unc.