Judge threatens fine to enforce ’91 ruling
A federal judge moved to end a 17-year legal saga yesterday by ordering the city of San Diego to remove the Mount Soledad cross from city property within 90 days or be fined $5,000 a day.
“It is now time, and perhaps long overdue, for this Court to enforce its initial permanent injunction forbidding the presence of the Mount Soledad Cross on City property,” U.S. District Judge Gordon Thompson Jr. said.
Thompson found the presence of the cross on city property unconstitutional in 1991, two years after its legality was challenged.
Since then, his order and the cross have been subject to litigation, public debates and three votes.
Courts have invalidated three land transfers – two sales to a private group and a gift to the federal government – designed to keep the cross atop one of the city’s most scenic landmarks.
In 2003, the U.S. Supreme Court refused to hear the city’s appeal.
The cross on Mt. Soledad was built as a memorial to Korean War Veterans. The religious intolerance of atheist Philip Paulson – who, by the way, moved from Los Angeles (City of Angels) to San Diego (a city named after a Saint) – now results in its removal.
Although Mayor Jerry Sanders said he will propose appealing yesterday’s ruling, City Attorney Mike Aguirre said an appeal would be a waste of time and resources.
It is unclear whether the City Council would approve an appeal.
The daily fines are a way for Thompson to force the issue, said Shaun Martin, a professor at the University of San Diego School of Law.
“That’s the usual way you tell people to put up or shut up,” Martin said.
All solutions other than removing the cross from Mount Soledad have been considered and rejected by the courts, he said, including land transfers and designating the site as a historic memorial.
“They’ve already tried everything short of moving the cross and lost,” Martin said.
Thompson, he said, showed extraordinary patience for such maneuvers, but yesterday the judge decided enough was enough.
“This was a way to actually get people off their duffs to make a decision and in some ways to give them cover for giving up,” Martin said.
The head of the private organization that operates the memorial said it is prepared to have the cross moved to private property nearby and replaced at the memorial with another fitting symbol for veterans of the Korean War.
“We feel it’s very important that the cross be saved,” said William Kellogg, president of the Mount Soledad Memorial Association. “The location of the cross is not the primary issue.”
The lawyer who fought for the removal of the cross said he expects city officials to comply with the judge’s order.
“I don’t think the city has its heart in taking more action,” James McElroy said. “It’s time to end 17 years of litigation and it’s time for the taxpayers to end footing the bill for futile litigation.”
McElroy said he has fielded death threats, one as recently as yesterday, as a result of handling the case.
The mayor said an appeal would be worth the money, but acknowledged he didn’t know what an appeal would cost the budget-strapped city.
Sanders justified continuing the legal battle despite Aguirre’s advice and the city’s dismal record of fighting it in court because, he said, most San Diegans believe the cross should stay.
“Seventy-five percent of the voters said they thought it was extremely important. I think we need to go to an appeal,” he said.
He was referring to Proposition A, last July’s ballot measure to transfer the cross to the federal government that was approved by nearly 76 percent of those who cast votes. However, San Diego Superior Court Judge Patricia Yim Cowett ruled in October the proposition violated the state constitution. That decision is on appeal.
McElroy said he hopes Sanders’ comments are “political posturing.”
“He needs to make an intelligent decision about the financial consequences here,” McElroy said. “I think he knows he can’t win the case, so, does he really want to throw taxpayers’ money at a losing case?”
In addition to its own legal costs, the city has been ordered to pay McElroy’s legal bills, which a judge in a related Superior Court case recently estimated were $280,000, on top of the $233,000 the city was forced to pay McElroy and the American Civil Liberties Union several years ago in a related lawsuit.
Philip Paulson, the atheist who sued in 1989 for removal of the cross, declined comment after yesterday’s ruling.
Philip Thalheimer, the head of a private organization that backed Proposition A, said his group might help the city financially with the appeal and the fines.
“People across the country are watching this,” said Thalheimer, chairman of San Diegans for the Mount Soledad National War Memorial.
During its ballot campaign, he said, “we raised $300,000 in about five weeks.”
Thalheimer said the group would like to appeal the decision, but it is unclear whether it has the legal right to do so.
A lawyer representing the group appeared at yesterday’s hearing as a friend of the court – a legal description for parties that may argue before a judge even though they are not a plaintiff or a defendant.
Aguirre said he doubts that an appeals court would overturn Thompson’s ruling and he expects city officials to work out a way to end the litigation.
“We’re free to disagree with the court’s ruling but not to disobey it,” he said. “It’s very disappointing, I know, for the religious community. My hope is that we’ll be able to use the next 90 days to find a resolution that allows us to come together to solve this problem.”
He accused city officials of having “politicized the issue.”
Of eight members of the City Council, three – Brian Maienschein, Jim Madaffer and Tony Young – have voted in favor of keeping the cross where it is. Council President Scott Peters and Councilwomen Toni Atkins and Donna Frye have voted to move it.
The newest members of the council, Kevin Faulconer and Ben Hueso, have not voted on the cross issue.
Peters, through a spokeswoman, said he believes the cross issue is a losing proposition and the city should work to end the litigation, but said he would docket the matter for a vote if Sanders asks for it.
In his ruling, Thompson said he has spent years hearing arguments over the cross, as have other courts.
“Consistently, every court that has addressed the issue has ruled that the presence of the Latin cross on Mount Soledad, land which is owned by the city of San Diego . . . violates Article I Section 4 of the California Constitution,” he said in his order.
And, he said, two cases that came up at the same time as this one – involving a cross on Mount Helix and a cross on the La Mesa city seal – have long since been resolved.
Staff writers Matthew T. Hall and Jennifer Vigil and librarian Denise Davidson contributed to this report.