A successful ballot measure that would have transferred the Mount Soledad Cross and a surrounding veterans memorial to the federal government in 2005 is not unconstitutional as previously ruled by a judge, a state appeals court announced today.

The three-judge panel unanimously overturned Superior Court Judge Patricia Yim Cowett’s decision that nullified Proposition A earlier this year. The ballot measure asked voters whether the city should donate the cross to the federal government.

Cowett ruled that Proposition A, approved by 76 percent of voters in a July 2005 election, violated provisions of the California Constitution prohibiting government from granting preference or aid to a religion. She also found that that presence of the cross on public property violated the U.S. Constitution.

James McElroy, the lead attorney in the 17-year battle over the presence of the religious symbol on public land, argued that Proposition A was unconstitutional because the referendum, ballot language, cross proponents and the City Council all expressed desire to save the cross.

The appeals court rejected that argument.

The “donation of the Mount Soledad site to the federal government is not in itself improper or unconstitutional,” according the appeals court’s ruling. “The history and the express intent of the city council in placing Proposition A before the voters reveals the fate of the Mount Soledad site was left to the democratic process. In this sense placing Proposition A on the ballot was an act of deference to political reality, not City support for a religion.”

Despite Cowett’s ruling, the federal government, with Mayor Jerry Sanders’ support, used its power of eminent domain to take possession of the cross in August. That move, which is currently the subject of a separate lawsuit, appears to give cross proponents the upper hand in the epic legal battle.

If the transfer under eminent domain is upheld, the city no longer owns the cross and memorial. If it is ruled unconstitutional, then the city would again own the property but could proceed with the donation under Proposition A, City Attorney Mike Aguirre said.

But that won’t be the end of Soledad saga. The appeals court didn’t consider whether the actual presence of the cross on federal land violates the state or federal constitution.

“Because we conclude the transfer to the federal government is proper, the cross is no longer situated on city land and thus we do not address whether its presence violates the California Constitution,” the judges wrote in their decision. “The question of whether the cross is constitutionally placed on what is, because of the transfer, now federal land is not before us. Although we note that in its written opinion the trial court expresses the view the presence of the cross violates the federal establishment clause, that view assumed the cross was still located on City property.”

The legal challenge of the transfer of the cross to federal land also contends that the presence of a cross on federal land violates the U.S. Constitution. In 1991, another federal judge, Gordon Thompson Jr., ruled that the cross’ presence on city land violated the state’s mandated separation of church and state.

While the city is currently appealing Thompson’s order that the city remove the cross and Moskowitz’ case is still in preliminary stages, McElroy said he plans to ask the California Supreme Court to review today’s appeals court’s decision.

McElroy said he was shocked by the court’s decision. “I don’t know how anyone can reasonably take that position,” he said. “Anybody who looked at the thing with open eyes knows what the purpose was.”

City Attorney Mike Aguirre said he thought the likelihood of the California Supreme Court hearing the case “is not great.”

Mayor Jerry Sanders said he believes the court’s decision vindicated the city’s efforts to honor the will of the voters. “I’m very gratified by this opinion,” he said. “I think it’s a win for those who believe in the democratic process.”

DANIEL STRUMPF

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