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Wednesday, Nov. 29, 2006 | The city of San Diego is asking a federal judge to extricate it from the latest skirmish in the 17-year legal battle over the fate of the Mount Soledad cross.
In court papers filed earlier this month, the city asked U.S. District Court Judge Barry Ted Moskowitz to dismiss it as a defendant in a lawsuit that claims the transfer of the cross to the federal government is unconstitutional. The city argues it no longer has any standing in the case because President Bush signed legislation in August transferring ownership of the cross and surrounding veterans memorial from the city to the federal government.
“The city is powerless to do anything because the city doesn’t own the land,” said George Schaefer, a deputy city attorney.
Moskowitz is scheduled to hear related arguments Wednesday. While related cases are currently on appeal, if the judge rules in the city’s favor, he would begin a process that could free the city from a controversy that has figured prominently in local politics and imposed a heavy legal burden for nearly two decades. But if Moskowitz maintains the status quo, the city will have to continue its fight and could be stuck with a portion of the legal bills should the judge ultimately void the transfer.
“I think the city is certainly an appropriate defendant in the case,” said James McElroy, the lead attorney in a case brought by Philip Paulson, a Vietnam War veteran and atheist who served as the plaintiff in prior cases involving the cross until his death last month. “I don’t think that the transfer would have occurred without the complicity of the city.”
In his latest legal challenge, McElroy points to the fact that Mayor Jerry Sanders wrote to Bush and met with White House staff in Washington earlier this year in an effort to have the memorial and cross declared federal property. McElroy contends Sanders’ actions were designed to preserve a religious symbol and subsequently created the unconstitutional appearance that the city prefers one religion over another.
The transfer that resulted from the mayor’s lobbying efforts violated provisions of the state and federal constitutions that regulate government aid to, and preference for, a religion, McElroy said. He also argues that the continued presence of a religious symbol on government property defies a clause of the U.S. Constitution that has been interpreted by courts to prohibit any attempt by government to promote a particular religion or prefer one over another.
McElroy, who also represents Steve Trunk, another Vietnam War veteran and atheist, named both the city and the U.S. government as defendants in his lawsuit. The American Civil Liberties Union has also filed a legal challenge on behalf of a Jewish war veterans group and several local residents. That suit has since been consolidated with McElroy’s but only named the federal government, not the city, as a defendant.
David Blair-Loy, the legal director of the local chapter of the ACLU, declined to discuss the decision not to name the city, calling it “ongoing litigation strategy.” But McElroy said the ACLU is a newcomer to the case and is only focused on the presence of the religious symbol on government property, not the transfer itself.
McElroy asked Moskowitz to void the transfer, effectively returning ownership of the property to the city. If the judge upholds the transfer, McElroy and the ACLU have asked him to order the removal of the cross from public land.
In response, the city filed a motion asking Moskowitz to dismiss the city from the case, arguing in part that Sanders wasn’t solely responsible for the transfer.
Also, the city should be dropped from the case because the federal government now owns the property and there will be no reason to prevent the city from displaying the cross – or have it as a defendant – if the court upholds the transfer, said Schaefer, the deputy city attorney.
On the other hand, if the transfer is voided, the city will again own the cross but will become subject to a prior ruling by another federal judge, Schaefer said. Fifteen years ago, U.S. District Court Judge Gordon Thompson Jr. ordered the cross to be removed from city land.
Earlier this year, Thompson issued an ultimatum giving the city 90 days to comply with his order or face a $5,000 daily fine. However, U.S. Supreme Court Justice Anthony M. Kennedy issued a temporary stay of Thompson’s order, pending an appeal by the city that is currently in underway.
Neither McElroy nor Schaefer said that they believe Moskowitz’ decision will impact the city’s standing in its appeal of Thompson’s ruling or its related appeal of a state court judge’s ruling that’s also in the works. In the second case, Superior Court Judge Patricia Yim Cowett voided the city’s attempt to give the cross and memorial to the federal government, a move voters approved in July 2005 as Proposition A.
Federal and state appeals courts are currently reviewing the respective cases and those processes will continue to move forward, attorneys said.
Just as in 2005, the fate of the cross has factored prominently into local politics over the years. On three separated occasions between 1992 and 2005, the City Council has asked voters to decide whether to sell or give away the cross.
The cross has become a perennial hot topic in local elections for City Council, the Mayor’s Office and Congress. Sanders, Rep. Brian Bilbray and several council candidates have trumpeted their commitment to preserving the cross during their recent campaigns.
The protracted legal battles over the cross have also taken a toll on the city’s limited financial resources. While the total costs of 17 years worth of litigation aren’t available, courts have awarded McElroy more than $500,000 in legal fees since 2003.
After Bush signed the transfer into law, Sanders and City Councilman Jim Madaffer stood beneath the cross and breathed a sigh of relief.
“It is now the federal government’s problem,” Madaffer said.
But the City Attorney’s Office has continued to work on the Mount Soledad issue and three deputy city attorneys are currently laboring on different aspects of the case, Schaefer said.
Facing a $1.4 billion pension debt and other financial crises that have sapped the city’s financial resources, the city’s request to depart the case may come down to a matter of dollars and cents.
“The only real purpose served by allowing Mr. Trunk to proceed forward against the city is to provide another deep pocket for recovery for more attorney’s fees and costs,” Schaefer wrote in a brief to Moskowitz.
McElroy said it sounds like the city is afraid it might be forced to pay up.
“The city certainly was an active participant of this scheme and is equally liable,” McElroy said.