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Thursday, May 04, 2006 | Take down the Mount Soledad Cross within the next 90 days, or the city of San Diego will be fined $5,000 a day for every day the monument remains on city land. That was the stark message delivered by U.S. District Judge Gordon Thompson, Jr. on Wednesday.
Thompson was answering plaintiff and atheist Philip Paulson’s motion to enforce an injunction that the judge originally issued back in 1991. That injunction called for the removal of the cross from public land on the grounds that it was unconstitutional to house a religious symbol on government-owned land.
The judge made clear in his ruling that he hasn’t heard anything to change his mind in the last 15 years of legal drama accompanying the tussle over the veterans memorial.
“Consistently, every court that has addressed this 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,” reads Thompson’s short, terse judgment. “… 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 federal property.”
Wednesday’s judgment is the latest in a snarled mess of legalities and ideologies that gets more complicated by the year. Despite the popularity of the Soledad Cross, the prospective financial burden that the cash-strapped city now faces could push the debate into a new realm of urgency.
It was unclear Wednesday whether the political will remains to continue the 16-year-old legal battle, although the city can attempt to postpone the judge’s ruling while it waits out a separate appeal in state court. Mayor Jerry Sanders recommended pursuing all legal remedies that remain, and City Attorney Mike Aguirre was reluctant to discuss the city’s next maneuver.
The Wednesday ruling essentially reinforces a 1991 that has been pushed to the side as the two parties in the cross debate have battled in lower courts and at the ballot box.
After a number of courtroom losses, supporters last year turned to the voters to boost their cause.
In a special election last July, San Diegans approved, by almost 76 percent, a proposition that would have transferred the cross, and the land it sits on, to the federal government in an attempt avoid court rulings such as Thompson’s and thereby salvage the monument. Months later, San Diego Superior Court Judge Patricia Cowett ruled that the proposition to transfer the cross was itself unconstitutional and was therefore null and void.
Cowett’s decision was appealed, on behalf of the city, by San Diego City Attorney Mike Aguirre. The city attorney had been saying the case was un-winnable for city, but took up the appeal as a political peace offering to the newly elected Sanders.
James McElroy, an attorney for the plaintiff Paulson, views the proposition issue as a detour from his main line of offense against the Soledad Cross. He sees the federal court as the correct court for this case, and that’s where he’s been challenging the constitutionality of the cross for 15 years. The continuing action in the federal court was delayed as the Proposition A case played out in state court. That all changed yesterday with Thompson’s ruling.
McElroy thinks yesterday’s ruling was conclusive.
“I think it’s over,” he said. “I think the fact that they’re going to have to pay $5,000 a day is not something that they’re going to want to put on the taxpayer’s backs. Taxpayers shouldn’t have to pay that burden.”
There are a still couple of ways the city can fight the cross battle however, the question is whether the political will exists to pursue them.
The city – or Aguirre working as a one-man-band – can opt to ask the 9th Circuit Court of Appeals to postpone Thompson’s ruling while they pursue the appeal against Cowett’s decision in state court.
The City Council would need to vote on such a motion and would need a simple majority to go ahead with it. Aguirre , who has made it clear in the past that he will file legal action without the approval of the City Council, could also attempt to appeal unilaterally.
Sanders issued a press release yesterday that recommended “Pursuing All Judicial Remedies to Save (the) Cross.” Sanders spokesman Fred Sainz said the mayor had always believed the cross was an integral part of the war memorial.
“There is a well-founded expectation on behalf of San Diegans that it will remain there,” Sainz said. “San Diegans have voted on it staying there,”
Council President Scott Peters said, through a spokeswoman, that he maintained his opinion that the city shouldn’t spend any more time or money on the Mount Soledad issue. Peters said he would put the matter before the council for a vote if asked to by the mayor.
Councilman Brian Maienschein said he is not yet sure of the remedies available to the council, but that he doesn’t want the cross to come down. He also said he doesn’t expect the potential remedies to cost the city much in time or resources.
Then there’s Aguirre. Even he doesn’t know what he’s going to do. Reached on the phone for about 10 seconds yesterday, he said he needed more time to “settle his thoughts” on the matter, and promised to call back. He didn’t.
If the City Council, or Aguirre, is going to act on this one, they have 90 days in which to do so. After that three-month period, the city will have to begin paying the court-imposed fines.
Please contact Will Carless directly at