Statement: “Even though over 70 percent of San Diegans want to keep (the Mount Soledad) memorial where it stands, Rep. Scott Peters voted to remove the memorial. The result? Years of legal battles and millions in taxpayer dollars wasted,” House candidate Carl DeMaio’s campaign wrote in Dec. 13 online petition.

A cross that serves as the centerpiece of the Mount Soledad Veterans Memorial in La Jolla has incited controversy for almost 25 years.

Vietnam War veteran and atheist Philip Paulson sued the city over in 1989, claiming the city showed favoritism toward Christians by allowing the cross on public land and violated both the state and U.S. constitutions in the process.

Decades later, the legal fight may be headed to the U.S. Supreme Court, and Carl DeMaio used the latest news to spotlight rival Rep. Scott Peters’ role in the long-running saga.

Last week, DeMaio created an online petition to maintain the cross, and included a couple bold statements about his Democratic rival. He claimed Peters voted to remove the memorial despite San Diegans’ overwhelming approval of it, and said Peters’ actions inspired years of expensive drama in and out of court.

I decided to vet DeMaio’s claims because the cross has been a source of controversy for so long that it’s easy to forget how the situation played out and why any single action or vote was taken.

We decided to vet the two parts of DeMaio’s statement separately. Let’s start by looking at his contention that Peters voted to remove the cross.

Image: Mostly TrueStatement: “Even though over 70 percent of San Diegans want to keep (the Mount Soledad) memorial where it stands, Rep. Scott Peters voted to remove the memorial.”

Determination: Mostly True

Analysis: First off, Peters votes on the Mount Soledad cross came from his time on the San Diego City Council. He hasn’t weighed in on the issue formally as a congressman.

As for votes against the cross, a DeMaio spokesman shared research that zeroed in specifically on votes Peters took in March 2005 and May 2006.

Context on the lead-up to these votes is crucial.

In 1991, U.S. District Court Judge Gordon Thompson Jr. ruled that the cross shouldn’t be on public land but left it to the city and other parties in the lawsuit to hash out what should happen to it.

Finally, in 2004, after legal fights scuttled two attempts to sell the property, the city secured tentative settlement agreements from cross supporters that would move the 43-foot cross to a local Presbyterian church.

Peters, who represented La Jolla on the Council, didn’t oppose that plan but proposed voters be allowed to weigh in. A City Council majority agreed, giving voters a chance to say whether the city should be allowed to sell the cross and the land around it to the highest bidder, thus potentially allowing the cross to remain on Mount Soledad. The buyer would determine the future of the cross.

Peters and others publicly said that if the measure failed, the city would likely move the cross.

About 59 percent of voters supported the measure, known as Proposition K, but it didn’t garner the necessary two-thirds majority.

Then another proposal emerged in March 2005: The city could transfer the land to the National Park Service and allow the memorial to stand.

Then-City Attorney Mike Aguirre said that would be unconstitutional and prompt more litigation because the city would be handing over property for the benefit of a religious group.

Peters said he couldn’t ignore the threat of more lawsuits and voted against offering the land to the federal government. Four fellow City Council members voted with him, meaning the city wouldn’t go forward with the transfer.

“As a devoted Christian, I try to love my neighbor and I try to get my camel through the eye of a needle,” he said at the March 2005 City Council meeting. “And as a public official, I promised in December, with my hand on the Bible, so help me God, to uphold the Constitution, and I can’t ignore what the 9th Circuit Court of Appeals is doing.”

Cross supporters weren’t happy with the City Council vote. They gathered nearly 73,000 signatures and in July 2005, voters got a chance to weigh in again. The ballot item that resulted was billed as a way to save the memorial and keep it in its current location. This time, about 76 percent said the city should donate the land to the federal government. (This vote is the primary source DeMaio’s camp is relying on when it claims more than 70 percent of San Diegans support keeping the cross in its current location.)

This caught the attention of the veteran who initially sued the city in 1989. He sued again, and a Superior Court judge declared the ballot measure unconstitutional, as Aguirre had predicted.

This leads us to the second Peters vote the DeMaio camp focused on.

In May 2006, Thompson decided to enforce his 1991 ruling. The city had 90 days to remove the cross or pay $5,000 per day in fines.

Then-Mayor Jerry Sanders’ administration pushed for the city to appeal but needed City Council approval.

Peters was one of three City Council members who voted against an appeal. He didn’t support Sanders’ approach because he was convinced the city wouldn’t win.

“I know people are upset that this is happening,” Peters said. “I’m one of the people who’d love to see the cross stay up there. It just seems to me that the courts are just not going to let that happen.”

The appeal was approved in a 5-3 vote, without Peters’ backing.

About a month later, the court declined to hear the case again but U.S. Supreme Court Justice Anthony Kennedy issued a temporary stay and former Rep. Duncan Hunter later managed to slip in a last-minute bill that put the land in federal hands. The measure, eventually signed by then-President George W. Bush, seized the property via eminent domain.

But that didn’t stop the lawsuits.

Almost eight years later, the cross remains atop Mount Soledad, though a U.S. district judge ruled again last week that its presence is unconstitutional. The U.S. Supreme Court may ultimately determine its fate.

Recent developments have made it an ideal topic for DeMaio, who hopes to unseat Peters in 2014. Let’s revisit the aspiring congressman’s statements.

Peters did take at least two votes that imperiled supporters’ wishes that the cross remain on Mount Soledad but DeMaio’s statement fails to acknowledge important context about Peters’ actions.

Each time, Peters said he wanted to keep the cross at Mount Soledad but that the courts didn’t seem likely to support him. He was concerned with minimizing the city’s legal bills and obeying a court order.

These are important nuances not reflected in DeMaio’s claim so I decided this part of the congressional hopeful’s claim is mostly true.

Image: Huckster PropagandaStatement: “The result? Years of legal battles and millions in taxpayer dollars wasted.”

Determination: Huckster Propaganda

Analysis: The second part of DeMaio’s claim is more troublesome.

He implied that Peters is solely responsible for the years of legal bills surrounding a case that began in 1989, more than a decade before Peters was elected to the City Council.

A DeMaio spokesman told me Peters’ votes contributed to hefty legal bills for taxpayers.

“The result of the back-and-forth on the issues is years of legal battle and expenses,” spokesman Dave McCulloch said.

But it’s illogical to point to Peters – or any City Council member who voted with Peters on the cross issue, for that matter – and imply he’s solely responsible for a legal fight that began before they even took office.

Furthermore, Peters’ explanations for his 2005 and 2006 votes hinged on a desire to minimize expensive litigation for the city. Each time, he said it seemed clear that the courts wouldn’t side with the city and that the city would end up with costly legal bills.

DeMaio’s statement doesn’t acknowledge this – or explain that the city actually faced a lawsuit after voters said the cross should be transferred to federal ownership, the precise scenario Peters’ vote sought to avoid. Since that transfer, the federal government is now the primary government entity footing legal bills but it’s cross supporters and city voters who prolonged the decades-long court battle.

I asked the DeMaio camp what might have happened if Peters or fellow City Council members had voted differently. Would the legal fight over the cross be over? Would the taxpayer expense be lessened?

DeMaio’s spokesman didn’t want to speculate.

“What might have happened in another fashion or another way? I can’t predict the future or the past as a result of a different vote,” said Dave McCulloch, the DeMaio spokesman.

McCulloch later said Peters’ votes contributed to the long-running legal quagmire but didn’t specify how, or detail how different votes might have changed  the situation.

He forwarded an email the campaign sent to supporters promoting the petition. The email wasn’t as direct in linking Peters’ votes to squandered taxpayer money.

“Congressman Scott Peters supported the removal of the memorial, and since then we have seen millions in taxpayer dollars spent on endless lawsuits.”

McCulloch argued that DeMaio’s overarching point is that Peters’ votes played a role in the saga surrounding the cross, and the significant legal bills that have come with it.

But the petition itself put the blame squarely on Peters, and the suggestion that Peters’ votes led millions of taxpayer dollars to be wasted on lawsuits is deceiving.

We dub a statement huckster propaganda when it’s not only inaccurate but it’s reasonable to expect the person or organization knew this and made the claim anyway to gain an advantage.

This ruling applies here.

DeMaio’s claim implied Peters votes spurred two decades of costly court fights and that’s simply wrong, and DeMaio almost certainly knows that.

If you disagree with our determination or analysis, please express your thoughts in the comments section of this blog post. Explain your reasoning.

Lisa is a senior investigative reporter who digs into some of San Diego's biggest challenges including homelessness, city real estate debacles, the region's...

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