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Friday, May 12, 2006 | There were priests and protestors gathered in the mist above Mount Soledad on Thursday morning. Rumors circulated in the cool morning air: Would President Bush be there? Was that a Secret Service operative – the guy with the earpiece and the sunglasses?
In the end, all the crowd got was San Diego Mayor Jerry Sanders.
Sanders stood before the 30-foot concrete cross that has the potential to become the epicenter of a national debate over the separation of church and state and outlined his next strategy in the cross saga.
Faced with a 90-day deadline and the prospect of paying $5,000 a day in fines if the cross is not removed, cross supporters have decided to bring in the big guns, Sanders said. They’re asking President Bush to personally intervene to transfer the cross to federal land, therefore taking it out of the city’s jurisdiction and potentially nullifying some of the court decisions that have been made against it.
On Thursday morning Rep. Duncan Hunter, R-El Cajon, wrote a letter to the president asking him to “begin immediate condemnation proceedings and bring this national veteran’s memorial into the federal park system.” Hunter’s missive was joined in the mail by a similar letter from Sanders, in which the mayor pledges his support for Hunter and urges the president to exercise the power of eminent domain.
“I commend Congressman Hunter for doing everything possible to preserve the integrity of this important shrine to our fallen soldiers and support the Congressman’s recommendation,” reads Sanders’ letter.
Hunter’s move has apparently been a long time coming. A spokesman for the congressman explained that Hunter has been working with cross supporters to assess every possible avenue for keeping the cross atop Mount Soledad.
An attempt was made last year to transfer the cross to federal land. Proposition A, which won 76 percent of the vote in last July’s special election, would have given the city the go-ahead to transfer the cross and the land it sits on into the jurisdiction of the National Parks Service. But in October 2005, Superior Court Judge Patricia Yim Cowett ruled the proposition unconstitutional and therefore null and void.
The city has vowed to appeal that decision, but while it waits for that appeal to get off the ground, the city has other fish to fry. Last week, U.S. District Judge Gordon Thompson Jr., who ruled back in 1991 that the cross could not sit on city-owned land, ruled that the city must move the cross off its property within 90 days. If the cross is not moved, Thompson said, he will start to fine the city $5,000 a day for every day it remains on top of Mount Soledad.
Supporters of the cross want to transfer the monument to the federal government because they believe doing so will give the cross legal protection that it does not have while it remains the property of the city. Basically, they believe they have a much better chance of keeping the cross where it is if they fight the legal battle at the federal level.
“We’re trying to move it into a different playing field, where the federal constitution applies. The other side’s scared as hell, because they know that if this case or something like it gets before the Supreme Court, they’ll lose,” said Charles LiMandri, an attorney with the Thomas More Law Center who is representing the city on a pro-bono basis.
If James McElroy, the attorney who has represented plaintiff Phillip Paulson in his battle to have the cross removed from city land, is scared, he’s not showing it.
McElroy was his usual, blustering, defiant self Thursday afternoon. He dismissed the actions of Hunter and Sanders as “silly,” and said the whole exercise of transferring the cross to federal land is a waste of time because it won’t solve the issue of whether or not the cross is constitutional.
“It’s not going to solve the constitutional problem – it’s going to make no difference whatsoever,” he said.
McElroy said that whatever action Bush takes to transfer the cross won’t change anything as far as the ruling made by Judge Thompson last week. In fact, he said, by going against the express wishes of the judge, Sanders and Hunter could be getting the city deeper in trouble.
“Nothing’s changed,” he said. “It’s just the city taking one more of the many steps it’s taken to dodge a lawful court order.”
Vincent Bartolotta, a San Diego-based land use attorney who specializes in eminent domain issues, said there’s little question that the federal government could take the memorial, and the land it sits on. If the federal government wants the land, and the city wants to give it to them, then unless someone challenges the transfer, it should sail through.
McElroy said he’s not yet sure whether he will challenge the eminent domain claim if Bush chooses to take Hunter up on his offer. He said he hasn’t yet done the research on the intricacies of the statute that gives the president the authority to seize land for the public good.
But San Diego City Attorney Michael Aguirre spoke out on Thursday against the actions of Sanders and Hunter. In a press release, Aguirre spelled out his concerns with the letters the politicians sent out.
“Such a move may be viewed by the San Diego Superior and United State District Courts as being in violation of existing judicial orders and could result in a contempt finding and or sanctions against the City of San Diego,” reads the press release.
Aguirre is also organizing a community forum to discuss the issue of the cross. The forum will be held on Thursday, May 18, at the Council Chambers on the 12th floor or 202 C St. in downtown San Diego.
Please contact Will Carless directly at