Saturday, October 08, 2005 | Superior Court Judge Patricia Yim Cowett ruled Friday that Proposition A, which would have transferred the Mount Soledad Memorial to the federal government, is unconstitutional, and is therefore “invalid and unenforceable.”

The proposition passed by almost 76 percent of the vote in the July 26 special election.

Cowett’s decision confirms a 34-page tentative ruling she released on Sept. 1, and did not come as a surprise to any of the attorneys involved. Attorneys for both sides of the contentious issue, which has seen numerous court hearings over its 16-year history, made their case before Cowett at a hearing Monday.

Ruling on Monday’s oral arguments, which built on a mountain of submissions and evidence previously submitted to her court, Cowett did not mince words in her decision.

“Maintenance of this Latin Cross as it is on the property in question, is found to be an unconstitutional preference of religion in violation of Article I, Section 4, of the California Constitution, and the transfer of the memorial with the cross as its centerpiece to the federal government to save the cross as it is, where it is, is an unconstitutional aid to religion in violation of Article XVI, Section 5, of the California Constitution.”

James McElroy, who represents Philip Paulson – an atheist and veteran who made the original complaint against the cross – said while he was not surprised by the ruling, he was heartened by it.

“I’m obviously pleased that the judge did such a thorough job,” he said. “Nobody could really question this decision.”

Of course, lots of people are questioning the decision.

Charles LiMandri, who is representing the city of San Diego in the matter, was highly critical of Cowett’s judgment.

“She went with her bias all the way,” he said. “… As to this particular religious symbol (Cowett’s decision) is extremely superficial and perfunctory. All she does is talk about other cases and other crosses and none of them are true war memorials, they’re just stand-alone crosses.”

A big unanswered question now is whether Cowett’s decision will be appealed, and if so by whom.

McElroy said City Attorney Mike Aguirre has told him that the city will not appeal Cowett’s decision.

Aguirre, speaking at a press conference Friday, reiterated his view that Proposition A was unconstitutional and praised Cowett for making her decision. He seemed to hint that he would not be authorizing the city to appeal the decision.

“The judge has made a judgment, and I think she’s right,” Aguirre said. “She has my support. I think she did a courageous thing. I know that she allowed all parties to have a full and complete hearing, and I hope that this will be, as to this chapter, the end of the matter.”

As to the issue’s next chapter, Aguirre said he would be encouraging all sides in the debate to enter a mediation process, through which he hoped to find a solution to one of San Diego’s most contentious debates.

Dave Collins, a spokesman for Aguirre, said no decision has yet been made as to whether the city will appeal the decision. However, he said the group San Diegans for the Mount Soledad National War Memorial could try to appeal as an aggrieved party.

That’s what LiMandri plans to do. He said he will definitely appeal the decision, with or without the express backing of the city.

LiMandri said he believes the state Court of Appeal, which in San Diego is the Fourth Appellate District, Division One, will hear the case. And he thinks the case is more likely to go his way on appeal than in Cowett’s courtroom.

“We need two out of three judges,” LiMandri said, “and I think it’s unlikely we’ll get three judges as liberal as she is.”

McElroy said it’s unlikely they will get any judges because the San Diegans for the Mount Soledad National War Memorial are not party to the case, and therefore should not be allowed to bring an appeal.

The case will also be discussed later this month before U.S. District Court Judge Gordon Thompson Jr., who has said he will not hear the case until it has run its course in the state court.

Then, the attorneys said, yet another chapter in the story will likely unfold.

Please contact Will Carless directly at

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