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Tuesday, August 16, 2005 | Supporters and attackers of the Mount Soledad Cross were expecting two hearings on the monument’s future in the past week. They got none.
A hearing that would have taken place before Superior Court Judge Patricia Cowett last Friday was postponed after James McElroy, who represents Philip Paulson – an atheist and veteran who made the original complaint against the cross – requested a continuance on the matter.
McElroy’s request may have been influenced by news from the District Court.
Just why Thompson won’t hear the case is another question. The reason the judge gave, according to attorneys on both sides, refers to an as-yet-undecided appeal before the Ninth Circuit Court of Appeals. That case concerns the legal ownership of the land on which the cross sits. Thompson said that because that appeal is still pending, he should not yet rule.
McElroy suggested that the legal ownership issue should not have affected the hearing, however.
“The federal court was concerned that because one part of this was on appeal, that it should not decide it,” he said. “I’m not certain that the federal court had read all the briefs and had a good understanding that some of these issues that need to be decided were not really related to that appeal.”
Also on the cards for that hearing were the issues of the constitutionality of the memorial and the enforceability of a settlement agreement that had been reached between the city and the Mount Soledad Memorial Association. All three lawyers involved in the case wrote a letter to Thompson urging him to at least hear arguments on these aspects of the case as soon as possible.
“[The letter] really said that the parties have raised significant constitutional issues,” said Charles Berwanger, attorney for the Mount Soledad Memorial Association, “and that it’s important to San Diego and it’s important to the parties that this issue is decided immediately.”
McElroy hopes to get a reply to that letter by the end of the week. If Thompson still refuses to hear the case, any decision on the constitutionality of the cross could be delayed for as long as 15 months as the land-ownership appeal makes its way through the Ninth Circuit.
Attorney Charles LiMandri of the Thomas More Law Center, who represents groups in favor of keeping the cross on Mount Soledad, said there is one other way the issue could be heard by Thompson sooner rather than later: If the Mount Soledad Memorial Association drops the appeal.
“There’s no reason for them to go forward with that loser appeal,” he said. “Hopefully, they’ll agree to dismiss it and get this thing on track to get this final constitutional issue resolved.”
That’s not going to happen. Berwanger said there’s no way the Memorial Association will be dropping the appeal. Thus, it could be more than a year before the issue comes before the District Court again. Thompson may reply to the attorneys’ letter by offering to hear the case, but all sides say that’s unlikely.
As for the Superior Court, McElroy may decide to bring the case back before Cowett for a decision if the District Court decides it’s not going to hear the case. That’s also unlikely. Thompson has been hearing the case for the last 16 years, and all sides agree that he has a strong grasp on the thorny legal issues surrounding the cross.
Attorneys close to the case also suggested that McElroy probably has at the back of his mind two other important factors. Firstly, Thompson, unlike Cowett, is unelected and, therefore, less likely to take into account public opinion when opining on such a contentious case. Secondly, the Ninth Circuit Court of Appeals, which would hear an appeal from Thompson, is widely regarded as a very liberal court and, therefore, more likely to take a strict reading of any separation of church and state cases.
LiMandri, however, was of the opinion that where the case goes for the time being won’t make much difference in the long-run.
“Sooner or later,” he said, “it will probably get to the U.S. Supreme Court either way.”
Please contact Will Carless directly at