Barnes-Wallace

ORDER CERTIFYING QUESTIONS TO THE SUPREME COURT OF CALIFORNIA

ORDER

We respectfully request the California Supreme Court to exercise its discretion and decide the certified questions presented below. See Cal. R. Ct. 29.8. The reso *1041 lution of any one of these questions could determine the outcome of this appeal and no controlling California precedent exists. See id. We are aware of the California Supreme Court’s demanding caseload and recognize that our request adds to that load. But we feel compelled to request certification because this case raises difficult questions of state constitutional law with potentially broad implications for California citizens’ civil and religious liberties. Considerations of comity and federalism favor the resolution of such questions by the State’s highest court rather than this court.

I.Questions Certified

The Desert Pacific Council, a nonprofit corporation chartered by the Boy Scouts of America, leases land from the City of San Diego in Balboa Park and Mission Bay Park. The Council pays no rent for the Mission Bay property and $1 per year in rent for the Balboa Park property. In return, the Council operates Balboa Park’s campground and…

I respectfully dissent from the portion of the order concluding that the plaintiffs have standing under Article III. Because the plaintiffs lack standing, the case should be dismissed. However, assuming that there is standing, I concur in the portions of the order certifying questions to the Supreme Court of California.

The reason that the plaintiffs lack standing to sue the City and the Boy Scouts is that their only claimed harm from the Boy Scouts’ religiosity is that it offends them. Neither they nor their sons have ever sought to join the Boy Scouts or use the facilities managed by the Boy Scouts. Although the plaintiffs are offended that, at some times of the year, a lot of (presumably reverent) Boy Scouts will be there, plaintiffs do not claim that they have ever been excluded, nor even that they want to camp at the same place, or camp at all. If the Boy Scouts were a church (which they are not), plaintiffs would be like someone offended because it was harder to get reservations at a hotel that hosts the church group’s annual convention, even though (1) they could have still made reservations, and (2) they did not want to stay at a hotel that hosted the church group.

The…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MITCHELL BARNES-WALLACE; 

MAXWELL BREEN,

Plaintiffs-Appellees, v. No. 04-55732

CITY OF SAN DIEGO,

Defendant,  D.C. No.

CV-00-01726-

and NAJ/AJB

BOY SCOUTS OF AMERICA —

DESERT PACIFIC COUNCIL,

Defendant-Appellant. 

MITCHELL BARNES-WALLACE; 

MAXWELL BREEN; LORI BARNES-

No. 04-56167 WALLACE, Guardian Ad Litem; LYNN BARNES-WALLACE, Guardian D.C. No. Ad Litem; MICHAEL BREEN, CV-00-01726- Guardian Ad Litem; VALERIE NAJ/AJB BREEN, Guardian Ad Litem, Plaintiffs-Appellants,  ORDER

CERTIFYING

v. QUESTIONS TO

THE SUPREME

CITY OF SAN DIEGO; BOY SCOUTS OF

COURT OF

AMERICA — DESERT PACIFIC

CALIFORNIA

COUNCIL,

Defendants-Appellees.  Filed December 18, 2006

Before: William C. Canby, Jr., Andrew J. Kleinfeld, and Marsha S. Berzon, Circuit Judges. 19465 19466 BARNES-WALLACE v. BOY SCOUTS OF AMERICA Order; Dissent by Judge Kleinfeld

ORDER

We respectfully request the California Supreme Court to exercise its discretion and…