Lions Club of Albany, California v. City of Albany

Filing 28

ORDER RE PRELIMINARY INJUNCTION. Signed by Judge Alsup. (whalc1, COURT STAFF) (Filed on 11/17/2022)

Case 3:22-cv-05377-WHA Document 28 Filed 11/17/22 Page 1 of 6

1
2
3
4
5
6
UNITED STATES DISTRICT COURT

7
8

NORTHERN DISTRICT OF CALIFORNIA

9
10

United States District Court
Northern District of California

11
12

LIONS CLUB OF ALBANY,
CALIFORNIA,

No. C 22-05377 WHA

Plaintiff,
Related to C 17-05236 WHA

13
v.
14
15

CITY OF ALBANY,
ORDER RE PRELIMINARY
INJUNCTION

Defendant.
16
17
18

INTRODUCTION

19

Four years ago, a prior order decided cross-motions for summary judgment between these

20

same parties, regarding the same cross on a hill. Today, the parties return with a variation on

21

their constitutional dispute. For the foregoing reasons, this action is STAYED. The motion for

22

preliminary injunction is GRANTED IN PART.

23
24

STATEMENT
An electrically-illuminated steel and plexiglass Latin cross, measuring over 20 feet tall,

25

has stood atop Albany Hill since 1971. The 1.1 acres of land hosting the cross initially belonged

26

to a couple, Hubert and Ruth Call, who were members of the Lions Club, a nonprofit

27

organization. The couple allowed the Lions Club to erect the cross on their land and illuminate it

28

every Christmas and Easter, which it has done every season up to the present. Via a series of

Case 3:22-cv-05377-WHA Document 28 Filed 11/17/22 Page 2 of 6

1

transactions in 1972 involving the Calls, a third-party developer, and the City of Albany, the land

2

was acquired by the City for use as a public park. The City was on constructive notice of the

3

Lions Club’s valid easement for ingress and egress to maintain the existing cross at the time the

4

land was acquired by the City.

United States District Court
Northern District of California

5

In September 2017, the Lions Club filed suit against the City of Albany. The Lions Club

6

alleged that starting in November 2015, after prompting by a group called the “East Bay

7

Atheist,” the City began to investigate whether the cross was structurally sound and expressed

8

concerns regarding the safety of the electric utility line that ran through it. Despite finding no

9

safety error, and having no statutory or regulatory authority, plaintiffs alleged, the City worked

10

with PG&E to shutdown electricity to the cross for a period of 108 days. This resulted in the

11

Lions Club’s inability to light the cross on at least five separate days, including during the

12

December 2016 Christmas Holiday. So, the Lions Club sued and the City brought counterclaims

13

for quiet title, trespass and nuisance. In the prior order granting in part and denying in part cross-

14

motions for summary judgment (“June 2018 Order”), this Court found that the Lions Club had a

15

valid easement, rejecting the idea that an otherwise valid easement “simply goes limp the

16

moment the land goes into the City’s ownership” (id. at 9). However, this Court also found the

17

City’s use of land bearing the cross violated the Establishment Clause, and it was up to the City

18

to remedy such violation. In a dictum, the June 2018 Order suggested three ways to the City to

19

cure the violation, but, there was no adverse party or intervenor at the time seeking to compel the

20

City to do so. Afterwards, the parties settled and stipulated to dismissal with the exception that

21

all parties could immediately appeal all issues and rulings in the June 2018 Order (Dkt. No. 113).

22

The June 2018 Order was subsequently affirmed on appeal. Three years passed.

23

In May 2022, the City filed a complaint in eminent domain with the Superior Court of the

24

County of Alameda to acquire the Lions Club’s easement along with a motion for prejudgment

25

possession of the easement. Prejudgment possession, also known as a “quick-take” eminent

26

domain action, allows the government to take early possession of the property at issue before

27

litigation is concluded upon depositing the probable amount of just compensation in court

28

available to the owner (State Order at 4). The City’s complaint and motion followed a
2

Case 3:22-cv-05377-WHA Document 28 Filed 11/17/22 Page 3 of 6

1

“resolution by necessity” hearing a month earlier, in which officials heard commentary from the

2

public regarding the proposed takings action. After this hearing, the City unanimously passed

3

the resolution to proceed with eminent domain. After briefing and a hearing, Judge Somnath Raj

4

Chatterjee granted the City prejudgment possession of the Lions Club’s easement, permitting -

5

(but not requiring) the City to take down the Lions Club’s cross and store it in a safe space

6

pending the outcome of the eminent domain trial (State Order at 12).

7

Importantly, in granting the City’s motion, Judge Chatterjee preliminarily found that the

8

City could exercise eminent domain, but was careful to emphasize that its determination did not

9

reflect on the actual merits of the pending action. Judge Chatterjee stated:
It should be noted that the determination of the [City’s] right to take
the property by eminent domain is preliminary only. The granting
of an order for possession does not prejudice the [Lions Club’s] right
to demur to the complaint or to contest the taking. Conversely, the
denial of an order for possession does not require a dismissal of the
proceeding and does not prejudice the plaintiff’s right to fully litigate
the issue. . .

10

United States District Court
Northern District of California

11
12
13
14
15
16

(State Order at 7) (citing Legislative Committee Comment following Cal. Civ. Proc. Code §
1255.410). The trial date of the validity of the eminent domain action is not yet set.
In September 2022, following this determination in state court, the Lions Club filed the

17
18
19
20
21
22
23

instant complaint in our district court along with a motion for preliminary injunction (Dkt. No. 1,
9). The new complaint claims, inter alia, that free speech and freedom of religion violations
have occurred by virtue of the state court’s determination, as “the loss of First Amendment
freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury” (Br.
19). The Lions Club asserts even temporary removal of the cross would be tantamount to
“desecration of [a] sacred symbol” (Reply Br. 9). This order follows full briefing and a hearing.
ANALYSIS

24

It is true that this Court’s June 2018 Order provided three suggestions on how the City of

25
26
27
28

Albany could cure its Establishment Clause violation. It stated, in relevant part, “[t]o remedy the


These docket numbers, along with all docket numbers that follow, correspond with the new case
number 3:22-cv-05377 WHA. All previous docket numbers were in reference to the related case
3:17-cv-05236 WHA.
3

Case 3:22-cv-05377-WHA Document 28 Filed 11/17/22 Page 4 of 6

1

Establishment Clause violation, the City has at least two options — either sell a parcel containing

2

the cross to a private party or condemn the easement through its power of eminent domain.

3

Possibly, a third option would be to adopt a zoning ordinance banning all religious symbols from

4

its public places” (June 2018 Order at 15).

5

This dictum was to point out a continuing Establishment Clause violation and to list three

6

ways for the City to cure the violation. It did not order any of the three options in particular, and

7

the dictum could not be deemed to be an order anyway because there was no one in the prior

8

case asking for such relief. But, having invested many hours in the case in solving the related

9

issues before it, the Court felt this considered dictum would be a beneficial word to the wise as to

United States District Court
Northern District of California

10

a path forward.

11

Judge Chatterjee said in his prejudgment possession order that the “Federal Action

12

Order” cannot be collaterally attacked in the state court action and that to set aside that order, the

13

Lions Club:

14
15
16
17
18

would need to go back to federal court in the Federal Action (or
another appropriate forum, if there is one) and litigate the matter.
Thus, the City of Albany is on the horns of a dilemma (1) Under the
Federal Action Order, the City is in a state of violation and has been
ordered to cure that violation; or (2) if there is to be further litigation
to set aside that Order, Albany would face exactly the type of
litigation that it seeks to avoid. Either way, there would be a
substantial hardship unless Albany complies with the Order in the
Federal Action.

19
(State Order at 9). Judge Chatterjee was exceedingly kind in treating the 2018 dictum as an
20
order, but this gave too much deference. Yes, the City is violating the Establishment Clause,
21

but the 2018 dictum merely suggested three possible cures — it did not order any of the three in

22
particular. The state court has before it two separate points. One is the underlying eminent
23
domain action, which is in its early stages and will not go to trial for many months. We do not
24
know for sure whether eminent domain will be granted. The other is the issue of whether the
25
Superior Court should allow the City to remove the cross pending trial. With respect to that
26
issue, Judge Chatterjee held that in weighing the balance of equities and hardships, the City
27
seeks to avoid the hardship of being in violation of the Establishment Clause. That the City had
28
4

Case 3:22-cv-05377-WHA Document 28 Filed 11/17/22 Page 5 of 6

1

other options available (such as selling the land to the Lions Club) is not necessarily enough to

2

defeat a “public necessity,” as this Court understands eminent domain law. The City wants to

3

keep the park and remove the cross, not sell the land. Further, as revealed at our hearing, there

4

is and has been no current offer by the Lions Club to purchase a parcel that includes the cross.

5

These considerations are relevant in weighing hardships and, as explained above, the question

6

of provisional relief is wholly in the hands of the Judge Chatterjee. He is free to rule either way

7

without offending any order or dictum by this court.

United States District Court
Northern District of California

8

At our hearing, however, it also developed that the City cannot say with any certainty

9

whether it can put the cross back up after its provisional removal, should the City ultimately

10

lose the eminent domain jury trial. The City stated that decision would need to go through

11

permitting or zoning approval, a public process which it cannot dictate or predict. Thus, as the

12

Court sees things, this is not just a decision merely pending litigation, but rather practically,

13

once the cross is down, it is down for good. This raises a serious exercise of religion problem

14

and in considering this issue, Judge Chatterjee’s ruling appears to have been based on a

15

misunderstanding of this Court’s prior ruling. Therefore, until such time as Judge Chatterjee

16

can reassess the motion for prejudgment possession, taking into consideration the correct

17

understanding of the June 2018 Order, removal of the cross is ENJOINED.

18
19
20

If the Lions Club disapproves of any ruling of Judge Chatterjee in the past or future, it
should take its disagreement to the California Court of Appeal.
Finally, in the prior litigation, the Lions Club raised the issue of free exercise. The

21

Court ruled that the Lions Club had a valid easement and the City took the land with notice of

22

the easement. They settled the case before we had a chance to reach any further issues. At no

23

time has the Court ruled that the Lions Club loses on its free exercise of religion arguments as

24

long as it continues to own the easement. And, at no time has the Court ruled pending

25

completion of one of the three suggested alternatives, the cross must be taken down. The issue

26

of provisional relief is a balancing of hardships question under state law and a question of what

27

the parties agreed to in their settlement (which is also a state law issue) — the outcome of which

28

is not necessarily dictated by anything this Court has ever written.
5

Case 3:22-cv-05377-WHA Document 28 Filed 11/17/22 Page 6 of 6

1
CONCLUSION

2
3

The parties should take this clarification back to Judge Chatterjee. Until Judge

4

Chatterjee issues his new ruling on prejudgment possession, removal of the cross is ENJOINED,

5

but once he rules anew, this injunction shall automatically end. He should balance the

6

hardships under state law, taking into account the establishment of religion on the one hand

7

versus exercise of religion on the other, and keeping in mind the distinct risk that once the cross

8

is down, even “temporarily,” it is down forever. Pending the resolution in state court, this case

9

will be STAYED.

10

United States District Court
Northern District of California

11

IT IS SO ORDERED.

12
13

Dated: November 17, 2022.

14
15
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

16
17
18
19
20
21
22
23
24
25
26
27
28
6