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The city won’t be able to escape the legal battle over the Mount Soledad Cross anytime soon.
During a court hearing this afternoon U.S. District Court Judge Barry Ted Moskowitz denied the city’s request that it be dismissed as a defendant from a lawsuit challenging the constitutionality of a recent transfer of the cross from the city to the federal government.
“They’re in the case until the end now,” said James McElroy, the lead attorney in the 17-year challenge to the presence of the religious symbol on public land.
McElroy said Moskowitz justified his decision by noting that, in a property dispute, all of the parties who are alleged to have ownership need to be included.
During an interview yesterday, George Schaefer, a deputy city attorney handling the case, said that if the city’s initial request for dismissal failed, it will make second attempt later in the case.
Click here to read more about the city’s efforts to be removed from the case.
McElroy sued the city and the federal government after President Bush signed legislation transferring ownership of the cross and a surrounding war memorial to the federal government. He alleges that the transfer violated provisions of the state and U.S. constitutions while the continued presence of the cross on public land also breaks federal law.
McElroy contends that Mayor Jerry Sanders’ actions to affect the transfer of the cross were also unconstitutional under sate law prohibiting government aid to religion.
“When the mayor was encouraging the federal government to take the property I was telling the city that this wasn’t going to solve their problem,” McElroy said.
McElroy said he plans to ask Moskowitz to compel Sanders to testify about his role in the transfer. Sanders respectfully declined his initial request, McElroy said.