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Court of Appeal:
City Had Right to Get Rid of Its Statue of Father Serra
Presiding Justice Gilbert Says Compliance With California Environmental Quality Act Was Not Required
By a MetNews Staff Writer
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Depicted above is the bronze statue of Saint Junípero Serra as it formerly appeared with Ventura City Hall in the background. Div. Six of the Court of Appeal for this district has held that the City of Ventura was statutorily uninhibited in ordering that the statue be uprooted and re-located at a mission. The city acted in light of the recent controversy over the priest’s conduct toward Native Americans in the 1700s. |
The City of Ventura acted within its rights in stripping a statue of Saint Junípero Serra of its historical-landmark status, prying it from its moorings in front of the city hall, and carting it off, Div. Six of the Court of Appeal for this district has held, in an opinion that avoids any discussion of the controversy surrounding the priest long hailed as “The Father of the California Missions” but recently accused of committing “cultural genocide.”
Father Serra, who lived from 1713-84, was canonized as a saint by Pope Francis on Sept. 23, 2015. But in response to allegations by a Native American tribe, the Chumash, that he had engaged in colonial subjugation, the City Council for Ventura (a city officially denominated “San Buenaventura”) on July 15, 2020, voted 6-0 for the removal of the bronze statue of him.
The previous month, statues of Father Serra, founder of the first nine missions in California (then part of Mexico, known as “New Spain”) were torn down by rioters in Los Angeles and San Francisco. Throughout the state, tribes in addition to the Chumash have denounced the Catholic priest from Spain—who has historically been referred to as the “Apostle of California”—for the alleged enslavement by missions of tribe members who were converted to Christianity and brutal treatment of them.
Gilbert’s Opinion
In Friday’s opinion, which was not certified for publication, Presiding Justice Arthur Gilbert said:
“This case illustrates the obvious; attitudes and values change. The City of Buenaventura…removed a statute of Father Junípero Serra because it is now offensive to significant members of the community.
“This appeal stems from the denial of a writ of mandate to require the City to restore the statute. We do not judge the wisdom or the action of the City’s legislative enactments….We affirm because the City acted within its legislative prerogative.”
In exercising that prerogative, the city made three findings: that the statue is not old enough to qualify as a historical landmark—that is, not 40 years old; that the removal of it does not require an impact study pursuant to the California Environmental Quality Act (“CEQA”); and that it can suitably be transferred to the San Buenaventura Mission (founded by Father Serra on Easter, March 31, 1782), located in the City of Ventura.
Matter of Arithmetic
A statue of Father Serra was unveiled in a public park on Nov. 27, 1936, its back to what was then the Ventura County Courthouse—which has since 1974 been Ventura City Hall—and facing the Pacific Ocean. If the 1936 date is used, the work was 83-years-old when the City Council acted, old enough to be “historic” under its rule, but the date of origin used by the city was Oct. 20, 1989, only 30 years before the vote.
The later date was that of the dedication of a copy of the original statue, which had been cast in concrete and was cracking The new version was an exact copy except that it was bronze-plated.
Use of the 1936 date was appropriate, the coalition maintained, because the city has consistently treated the bronze statue as a work harking to 1936, and that in so dating it, the city cannot plausibly contest that the conducting of an environmental impact study was mandatory. The city countered that although the concrete statute was recognized as a historic landmark, the bronze statue never was.
Coalition’s Brief
The coalition argued in its opening brief on appeal:
“CEQA expressly protects ‘objects of historic or aesthetic significance,’ which are deemed to be part of the ‘environment.’…The Father Serra statue falls squarely within the ambit of this protection. The statue became a prominent symbol of the City after being installed as a fixture at the center of the City in 1936. When the City began designating historic landmarks in the 1970s it was third of the first five the City chose, and was thus designated as ‘Historic Landmark No. 3.’ Under CEQA the City’s placement of the statue on the City’s list of officially recognized historic landmarks gives rise to a presumption that the statue is a historical resource protected by CEQA.”
Public Resource §21084.1, a portion of the CEQA, provides that “[h]istorical resources included in a local register of historical resources…are presumed to be historically or culturally significant.”
The coalition added:
“The recasting of the Father Serra statue in bronze did not divest the 1974 Designation of its applicability because the statue in its bronze form remained within the intent of the designation. The 1974 Designation is of a 9’4” John Palo-Kangas-designed Father Serra statue located at 501 Poli Street. The bronze statue is such a statue.”
At the base of the bronze statue was a plaque identifying the work as “Landmark No. 3” which, the coalition asserted, is “irrefutable public and tangible evidence that the City had applied the 1974 Designation to the statue in its bronze form.” It also noted that in 2002, the city had the Office of County Recorder record the 1974 minute order designating the statue as a historic landmark, and that the city has, starting in 2002, placed the statue on its list of historic landmarks.
City’s Brief
The city pointed out that the presumption created by §21084.1 is overcome, by its terms, where “the preponderance of the evidence demonstrates that the resource is not historically or culturally significant.” It has, it declared, met that burden, saying in its respondent’s brief:
“[A]n expert consultant, Historic Resources Group (‘HRG’), was hired to analyze the historic nature of both the Original Statue and 1989 Replica….HRG prepared a detailed Historic Assessment Report…that concluded that the Original Statue remained a designated landmark, despite the fact that it had been removed and placed in storage.”
The city says that HRC independently evaluated whether the bronze statue is of historical value and concluded that it is not. Aside from relying on the city’s rule that nothing is historic unless it’s at least 40 years old, the consultant, according to the city’s brief, “further evaluated the 1989 Replica under five separate criteria, and determined that it was not eligible for local designation under any such criteria” and that it is not a “historical resource as defined by CEQA.”
The city invoked the “common sense exemption” from complying with the CEQA. Under a provision of the Code of Regulations:
“…CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.”
Gilbert’s Opinion
Gilbert said in Friday’s opinion:
“It is true that for most of the statue’s history the City viewed the original concrete statue and its bronze replacement as one. Recently however, the City viewed the statues as two separate statues. The Coalition cites no authority that prevents the City from changing its view. It is beyond question that the original concrete statue and its bronze replacement, are in fact two different statues.
“The Coalition argues that section 21084.1 requires the City to find that the statue is ‘no longer’ culturally or historically significant. But there is no reason why the presumption cannot be rebutted by a finding that the statue was never culturally or historically significant. Whether one agrees or not with this finding, that is what the City found. Having found the bronze statue now has no historical significance, it follows that the CEQA common sense exemption applies.”
The presiding justice said that the city’s finding that the bronze statue is not historically significant must be upheld if it is supported by substantial evidence, saying that the HRC report meets that requirement.
City Lawmakers’ Bias
The coalition advanced a view that the July 15, 2020 decision by the City Council is marred by “disqualifying bias and pre-judgment” of the issue on the part of some of the members of that body which, it says, was “manifest” in light of their public statements and by their promoting and participating in an anti-Serra rally.
“Because the City’s landmark status determination was judicial in nature,” the brief asserts, the city lawmakers’ “expressions of commitment to removal of the statue constitute disqualifying bias.”
Gilbert responded:
“Council members acting in a quasi-judicial capacity must be unbiased and cannot prejudice the matter….Council members acting in a quasi-legislative capacity are not so constrained….
“The City decided to remove the statue because it was offensive to some members of the community. The City was not engaged in finding facts under criteria established by a statute or ordinance. It was making policy. The City’s decision to remove the statue was quasi-legislative.”
Other Contentions
The coalition pointed to a portion of the city’s 2007 Downtown Specific Plan calling for preservation of historic resources, but Gilbert noted that the plan also authorizes demolition of such resources and said that there is no prohibition on uprooting a statue “upon a finding that on reexamination it, in fact, never had historical value.”
He wrote that a Municipal Code provision prescribing procedures for scratching landmarks off the official list does not apply because the city found that the bronze statue was never on that list, and substantial evidence supported that finding.
The case is Coalition for Historical Integrity v. City of San Buenaventura, B319536.
Priest’s Former Image
At one time, Father Serra was portrayed widely, including in textbooks designed for elementary school students, as a heroic figure of California during Spanish rule, with his labors having had beneficial effects extending beyond California gaining U.S. statehood in 1850 and to the present times.
Then-Gov. Jerry Brown hailed him as a “very courageous man, and one of the innovators and pioneers of California.”
So far as his attitude toward Native Americans, he was viewed as their champion. Appalled at the mistreatment by Spanish colonists, including soldiers, of the Native Americans and unable to gain sympathy from the governor of Alta California, on Oct. 17, 1772, he set foot for Mexico, meeting there with the Spanish viceroy and obtaining a bill of rights for the Chumash.
In proclaiming him a saint, the pope remarked:
“Junípero sought to defend the dignity of the native community, to protect it from those who had mistreated and abused it.”
However, reports have surfaced that Native Americans who had been converted to Christianity and were housed at missions became prisoners there and, if they misbehaved, were subjected to corporal punishment and shackling. Father Serra has, in light of these accounts, fallen, in the eyes of many, into disrepute.
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