ACLU of San Diego Hails Appeals Court Decision on Sale of Soledad Cross

October 22, 2002 12:00 am

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SAN DIEGO-The American Civil Liberties Union of San Diego today hailed a ruling by an 11-judge appeals court panel that denied four separate requests by the city of San Diego to reconsider a June 2002 finding that the city violated the California Constitution when it gave unfair advantage to a religiously oriented organization in the sale of a city-owned park.

Today’s ruling by the Ninth Circuit Court of Appeals is the latest chapter in a decade-long legal dispute over a 43-foot-tall, 24-ton Christian cross which sits atop San Diego’s Mt. Soledad.

“This is at least the sixth time in the last decade that a judicial body has told the city that the presence of a Christian symbol on public property is unconstitutional or that a ‘sweetheart deal’ meant to preserve the cross is also unconstitutional,” said James McElroy, co-counsel in the case with the ACLU of San Diego. “The taxpayers might want to ask their city leaders how much of their money they intend to spend resisting the court’s rulings and pursuing an unconstitutional course of conduct.”

The issue addressed in the court’s June ruling was whether the city had complied with District Court Judge Gordon Thompson’s 1991 decision that the city’s maintenance of a Christian cross in a prominent city-owned park violated the constitutional requirement that government not support or show preference for religion. Judge Thompson ordered the city to disentangle itself from the issue.

After the city lost its appeal of that ruling, the court also nullified the city’s 1997 attempt to evade Judge Thompson’s order by selling a tiny piece of land situated directly under the cross to the Mt. Soledad Memorial Association.

The city then held an auction that was manipulated to favor bidders who would keep the cross in the park. Not surprisingly, the Memorial Association — which built the cross in 1952 and is committed to keeping it in the park — was awarded the cross property by the city.

The sale was initially approved by Judge Thompson and by a three-judge panel of the Ninth Circuit, but because of the importance of the issues in this case, the Ninth Circuit Court of Appeals decided to set aside the decision of the three-judge panel and to re-hear the case in an unusual en banc proceeding, which means that all available justices in the circuit would hear the case.

The 11-judge en banc panel ruled that because prospective buyers not wanting to preserve the cross would have to bear the additional cost of removing the structure and constructing a new war memorial, the sale gave a financial advantage to those who would keep the cross. In addition, the court said that the city had designed the transaction to preserve the cross.

“We have repeatedly and publicly declared our willingness to sit down with the City to craft a constitutional resolution to this situation,” said Jordan Budd, Legal Director of the ACLU of San Diego. “Instead, the city pursued yet another fruitless appeal in its effort to avoid its responsibilities under the Constitution. The door is still open. We hope the city will finally remedy its constitutional violation without further prolonging this decade-long legal battle.”

The city appealed the en banc decision by asking the Ninth Circuit for one of four options: that the en banc panel reconsider its ruling, that the full 24-judge Ninth Circuit Court re-hear the matter, that the court refer the case to the California Supreme Court, or that the case be sent back to Judge Thompson’s District Court for further factual analysis. All four requests were denied.

The city’s only option for further legal review at this point is to try to persuade the United States Supreme Court to consider the case, which it is not likely to do given the fact that the decision rests entirely on California constitutional law.

The case, Paulson v. City of San Diego, was filed on behalf of Philip Paulson.

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