December 2015 - Parks & Recreation - 29

general prohibition on unattended
displays to allow the " long-standing
tradition " of the nativity scenes in
Palisades Park to continue.
This " Winter Display " exception authorized unattended displays
during the month of December, but
only in Palisades Park. Under the
Winter Display rule, all members
of the community, not just the committee, were permitted to put up displays, and display space was to be
allocated on a first-come, first-served
basis. The Winter Display system
functioned without incident in its
first few years of existence, during
which time the only applicant who
requested substantial display space
was the committee.
In 2011, however, applications for
Winter Display space surged. That
year, a number of atheists who opposed the placement of religious displays in Palisades Park applied for
Winter Display space. In response
to increased demand, the city instituted a lottery system to allocate
the available space. As a result, the
atheists received the majority of the
display spots. The committee alleged
these applications were a coordinated attempt to keep the space away
from the committee and other religious groups. The committee and
the atheists both vowed to flood the
display-space lottery with even more
applications in 2012.
In early 2012, the city attorney
submitted two separate reports to
the city council in which she recommended that the city council eliminate the legal exception permitting
Winter Displays in Palisades Park.
In these reports, the city's attorney
acknowledged the First Amendment
prohibited the city from picking and
choosing which displays to allow in
the park during December.

Accordingly, in the attorney's opinion, the city had only two options: it
could continue with the lottery system it had in place, or it could repeal
the Winter Display system altogether. The city attorney recommended
repealing the Winter Display system
entirely. According to the attorney,
Santa Monica residents wanted to
" preserve the aesthetic qualities " of
the park and their ability to " look at
the ocean vista " for which the park
was renowned, rather than continue
to allow the Winter Displays.
Further, as noted by the city attorney, city staff had reported the lottery
system for display space was " time
consuming and costly " to operate,
requiring the investment of hundreds
of hours of staff time. Moreover, this
problem was likely to intensify in the
future because the groups involved
had indicated that they planned to
" flood " the lottery process in future
years " to increase their odds of being
allocated more spaces. "

In the opinion of the city attorney,
eliminating the Winter Display exception would " serve the purposes of
resolving the controversy, eliminating
legal risks, conserving the staff time
and resources necessary to operate a
constitutionally valid regulatory system, conforming usage of Palisades
Park to the long standing, city-wide
standard which prohibits unattended
displays in parks, and protecting the
views of the park and ocean. "
The city council agreed with the
city attorney and unanimously adopted an ordinance that repealed the
Winter Display exception.
District Court
The committee responded to enactment of the ordinance by suing the
city, alleging the city's policy banning private unattended displays
in Palisades Park violated the First
Amendment's Free Speech Clause.
In particular, the committee claimed
the challenged ordinance was an un-

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December 2015 - Parks & Recreation

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