Proposed Transfer Of Mount Soledad Cross Reversed

SAN DIEGO -- The Mount Soledad cross could be saved under an appellate panel ruling Thursday to reverse a lower court's finding that the city of San Diego's proposed transfer of the cross to the federal government is unconstitutional.

A three-judge panel of the 4th District Court of Appeal reversed an October 2005 ruling by San Diego Superior Court Judge Patricia Yim Cowett.

Cowett ruled that Proposition A -- which allowed the city of San Diego to transfer the 29-foot cross and surrounding walls and plaques to the National Park Service so it could be designated a national war memorial -- was invalid and unenforceable.

In a July 26, 2005, special election, 76 percent of San Diego voters cast ballots for Proposition A.

City Attorney Michael Aguirre said the ruling was a "significant victory" for the city of San Diego, and may mark the "final chapter" in the legal challenges on the cross.

"This is a significant decision because it clears the path for the transfer of the property to the federal government," Aguirre said.

Mayor Jerry Sanders also lauded the decision.

"All along I have argued that the will of the voters should be honored," Sanders said.

"It is not often that 76 percent of voters voice their opinion affirmatively toward any issue," he said. "I think the vote showed the importance the memorial has to a wide cross-section of San Diegans."

The American Center for Law and Justice, which is based in Washington, D.C., applauded the state appeals court decision.

"The California appeals court got it right," said Jay Sekulow, chief counsel of the ACLJ, which is actively defending the constitutionality of the cross. "This decision clearly shows that the ballot proposition was proper and constitutional in transferring the land to the federal government.

"This decision represents another important legal victory in the ongoing battle to keep the Mount Soledad Memorial in place."

Vietnam veteran Phillip Paulson sued the city in 1989 to try to force the removal of the cross, contending that having the Christian symbol on city-owned land represented unconstitutional preference for religion under state law.

In 1991, U.S. District Court Judge Gordon Thompson Jr. ruled in Paulson's favor.

A series of appeals followed, but the decision was upheld. In May, Thompson gave the city 90 days to comply with the order or face a fine of $5,000 per day.

His ruling was put on hold by U.S. Supreme Court Justice Anthony Kennedy and is now before the U.S. 9th Circuit Court of Appeals.

Paulson died Oct. 25 of liver cancer but added a friend, Steven Trunk, to the lawsuit so it could continue.

On Wednesday, a federal judge refused to dismiss the city of San Diego from the lawsuit challenging the transfer of the cross to the federal government.

President Bush signed a law in August transferring ownership of the cross and the land it sits on to the Department of Defense.

Aguirre said Thursday ruling will carry "great weight" in the federal cases on the cross.

"I think that it moots the case before Judge Thompson as a practical matter," Aguirre said.

"I believe this judgement also will work to eventually to make moot the pending federal case," the city attorney said.

"I am hoping this will resolve the matter and bring finality to the matter," he said.