Friday, July 22, 2005 | At least one thing about Proposition A is now clear. The proposition will now require a two-thirds vote to pass, rather than a simple majority.

Superior Court Judge Patricia Cowett addressed the issue Thursday, a week after ordering attorneys from both sides to file briefs detailing either side of the legal argument.

The judge was asked by the attorneys to decide on two key issues. The first is whether the city of San Diego indeed owns the Mount Soledad property and the memorial upon it, and therefore is entitled to act on a measure to transfer the monument and the parkland surrounding it to the federal government. Secondly, she was asked to rule on whether such a transfer might result in a change of use of the land, and would therefore require a two-thirds vote rather than a simple majority.

On the former, Cowett again reserved judgment on what has proved to be a complicated and contentious issue.

Attorney James McElroy, who represents atheist Philip Paulson, has argued that the city cannot transfer the memorial to the federal government because it is clear that the cross is owned by the Mount Soledad Memorial Association. In other words, that the city cannot transfer what it does not own.

Upon hearing arguments from both sides on the ownership of the cross and the memorial and parkland around it, Cowett said it appears that both the city and the Mount Soledad Memorial Association agree that the cross is owned by the Memorial Association. Because Proposition A is silent on whether ownership of the cross would pass to the federal government alongside ownership of the land, she said she would refrain from making a decision on this until Proposition A has been voted on.

Saying that the court needs to focus on the exact wording of the proposition, Cowett agreed that there is confusion over who owns what on Mount Soledad.

“I agree that there’s a cloud on the title,” she said. “[The city] does not purport to say we own the fees and interests in the land, it just says whatever interests they have, they donate – whatever that might be and whatever it might be in the future, so I think that that allows this proposition to remain.”

Proposition A may still fail, and if it does, Cowett will never have to make a decision on this tricky point of law. If it does pass, then all sides will be back in court to figure out whether the vote actually meant anything in the first place.

The bar was raised for Proposition A to pass, however, when Cowett ruled on the second contentious issue of the day.

McElroy had previously argued that the San Diego City Charter Section 55 requires a two-thirds vote whenever city parkland is transferred to some other use. While supporters of proposition A have argued that the usage of the land will not change – because it will become part of the National Park System and will essentially remain as parkland – McElroy argued there is a good chance that the land might not be used as parkland indefinitely.

Cowett agreed. Citing numerous cases where Congress has enacted public laws allowing the National Park Service to decommission public parkland, she said that the likelihood exists that the use of the land could change. Therefore, as per Section 55 of the City Charter, a two-thirds vote must be the requirement.

“I’m very pleased,” said McElroy, delighted by the afternoon’s events. “I think the court did exactly the right thing, it’s what I asked the City Council to do when they first put this on the ballot. It’s obviously the right decision, and it’s going to be much harder to get a two-thirds vote than a majority.”

Phil Thalheimer, chairman of San Diegans for the Mount Soledad War Memorial, was unfazed. He said his group will continue to campaign steadfastly for a “yes” vote, and that they still expect to win.

“We believe that we’re doing well,” he said. “We can get that, we can get two out of three people to vote for us. It’s disappointing – if she had maintained it at 50-plus-one, it would have been a slam-dunk. It’s not a slam-dunk any more, now it’s going to be close.”

Please contact Will Carless directly at

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