A three-judge panel from the Fourth District Court of Appeals heard oral arguments this morning from several groups involved in the 17-year legal battle over the Mount Soledad Cross.
The judges are considering the city of San Diego’s appeal of a Superior Court ruling that last year struck down a ballot initiative transferring the cross – and land around it – to the federal government. Superior Court Judge Patricia Yim Cowett invalidated the ballot measure, which passed with 76 percent of the vote in a July 2005 special election and would have given the cross to the federal government, after finding it to be an unconstitutional aid to religion.
But a lot has changed since the city and cross advocates initially filed their appeal. In May, President Bush signed legislation that officially transferred ownership of the cross from the city to the federal government.
While the constitutionality of the latest transfer is also subject to a separate legal challenge in federal court, proponents of keeping the cross have said they hoped the transfer would moot Cowett’s ruling.
The three-judge panel is expected to announce its decision on the city’s appeal within 90 days.
Meanwhile, on Thursday, the Ninth Circuit Court of Appeals will hear arguments from cross proponents appealing a 15-year-old ruling by U.S. District Court Judge Gordon Thompson Jr. that the cross violates the state constitution. In May, Thompson ordered the city to remove the cross within 90 days or face monetary penalties.
But in July, Supreme Court Justice Anthony Kennedy put Thompson’s ultimatum on hold until further notice and indicated that the Supreme Court may be willing to hear the case if the city loses its appeal of Thompson’s ruling.
Once again, cross proponents are expected to argue that the transfer of ownership to the federal government moots Thompson’s decision. They are also expected to argue that improvements made to the memorial since 2000 deemphasize the cross and have therefore changed the legal playing field.
The Ninth Circuit could take months to issue a ruling.