Thursday, July 28, 2005 | Now that the Mount Soledad Veterans Memorial has some breathing space, lawyers for both sides in the long-running legal debate will begin gearing up for a forthcoming courtroom showdown.
At issue are several thorny issues. Chief among them are whether the cross is allowed to remain on public land under the state and federal constitutions and whether the city of San Diego actually owned the memorial and the land it sits upon when Proposition A passed this week.
The first hearing is scheduled for Aug. 12 in the courtroom of Superior Court Judge Patricia Cowett. Cowett previously deferred any ruling on the land-ownership issue until after Proposition A had been voted upon. She has also hinted toward making a judgment on the constitutionality of the cross, but attorneys for both sides were split as to whether Cowett will make a decision on either point.
The reason? Attorney James McElroy, who represents Phillip Paulson, an atheist and veteran who made the original complaint against the cross in 1989, has also requested a hearing before U.S. District Judge Gordon Thompson Jr.; that hearing is scheduled for Aug. 15. McElroy wants Thompson to rule on the constitutionality issue, and hopes the judge will enforce an injunction he issued in 1991 that calls for the removal of the cross from publicly-owned land.
Attorney Charles LiMandri of the Thomas More Law Center, who represents groups in favor of keeping the cross on Mount Soledad, said it was very unusual for two courts to be addressing the same issues within three days of each other, and that his guess is that Judge Cowett will defer on both issues to Judge Thompson.
“I’d say there’s at least a 50-50 chance that she will not rule, knowing that another court has been asked to do it three days later, and that [Thompson] has had it for 16 years,” LiMandri said.
McElroy’s guess is that Cowett will rule, and will rule in his favor on both the issue of constitutionality and of property ownership. Although Cowett, as an elected judge, is answerable to a certain extent to the political will of the people of San Diego, McElroy did not think that she will have public popularity on her mind when she enters the courtroom on Aug. 12.
“Judge Cowett will look at the law and she’ll make her decision based on what the law is,” he said. “I may disagree with her, I may agree with her, but she’s going to call it the way she sees it. That’s her job, that’s what she gets paid to do.”
LiMandri said that whether the decision is made by Cowett or Thompson, he expects the judge to rule that the Mount Soledad Memorial is now within constitutional boundaries. Thompson’s original ruling that the cross was unconstitutional, he said, was largely based on the fact that it was a free-standing religious monument on public land. Since 2000, the Mount Soledad Memorial Association has pumped more than a million dollars into the memorial, and has erected brick steps and walls covered with plaques honoring veterans. Many of these plaques, LiMandri said, feature Stars of David and Masonic symbols. He said the monument is now clearly a secular, rather than a religious edifice.
“No one in their right mind’s going to say it’s not a world-class war memorial,” said LiMandri. “The federal court has the power and the duty to modify or vacate an injunction when circumstances have materially changed. How can anyone say they haven’t changed? McElroy’s trying to say that nothing’s different, give me a break.”
The first hearing will take place on Aug. 12, at 1:45 p.m. in San Diego Superior Court 67 before Cowett. The next hearing will be held at 2 p.m. on Monday, Aug. 15, at District Court, Dept. 8, in front of Judge Thompson.
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