The Morning Report
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Thursday, June 22, 2006 | City Attorney Mike Aguirre is calling it the “last remaining option” in the 17-year legal battle to keep the Mount Soledad Cross atop La Jolla: Another appeal to the U.S. Supreme Court.
Aguirre proposed the new course of action Wednesday after hearing that the city’s appeal to the Ninth Circuit Court of Appeals had failed. The city had hoped for the court to postpone the May 3 decision by U.S. District Court Judge Gordon Thompson that the cross must be removed from public land by Aug. 1.
Thompson ruled that the city must remove the cross from city owned land within 90 days, or it will be fined $5,000 a day for each day the cross remains where it is. That decision repeated what he determined in 1991: That the cross is unconstitutional because it is a religious symbol that sits on public land.
The city asked the appeals court less than a week ago to delay Thompson’s decision while it pursued separate appeals against his ruling and another state court ruling. It had argued that a stay – or delay – was necessary in order “to avoid irreparable harm and to preserve the status quo pending full resolution of a related court matter.”
Aguirre said the speed at which the three-judge appellate panel made its decision was remarkable. The stay was filed at the beginning of the month.
“This case has been around a long time. Courts have a way, once they make up their mind, of being definitive,” he said.
Mayor Jerry Sanders, who since his election in November has vowed to pursue every legal remedy available to save the cross, was in Sacramento on city business when the ruling was announced. His office issued a press release that said Sanders was “disappointed.”
“However, I have no intention of violating Judge Thompson’s order if a resolution cannot be reached by August 1st,” reads the press release. It continues: “We are a society of laws and we must respect the integrity of those laws.”
Sanders and Aguirre have said they aren’t willing to incur the $5,000-a-day fine, hinting that they would be willing to remove the cross once all legal means are exhausted.
Aguirre said the city faces a “heavy burden,” in convincing the Supreme Court to take on the case, and said he does “not believe that we have a probable likelihood of success” when it comes to saving the cross.
Aguirre also said the city has tried to get an audience with the Supreme Court twice before and has been unsuccessful both times. He had a word of advice for San Diegans.
“I think that people need to start conditioning themselves to the possibility and perhaps eventuality that Judge Thompson’s order is going to be carried out,” he said.
James McElroy, the attorney who has represented plaintiff Phillip Paulson in his battle to have the cross removed from city land, said he was very pleased with the decision.
“I think this is pretty much the end of the road,” he said.
Attorney Charles LiMandri of the Thomas More Law Center has been acting as pro-bono counsel for the city. He said he was “obviously disappointed” by the court’s decision to deny the stay, but said the group he represents, San Diegans for the Mt. Soledad National War Memorial, has launched its own parallel appeals to save the cross, some of which he said look increasingly promising.
But the San Diegans for the Mt. Soledad National War Memorial have repeatedly been rejected by the courts as parties to the cross case. The two-year-old group has had little luck with its cause since it sponsored a successful proposition to transfer the cross to federal parkland last July. That proposition was later deemed unconstitutional in court and is another judgment that both the city and LiMandri’s group are appealing.
Aguirre said he’s going to continue to work as hard as he can to save the cross for San Diegans. He said the one other chance for the cross – that President Bush will personally intervene to save the monument – is looking increasingly unlikely.
As of press time, White House and Justice Department press officers were saying the same thing.