Court Upholds Ballot Initiative to Save Mt. Soledad Cross
By Randy Hall
CNSNews.com Staff Writer/Editor
http://www.cnsnews.com/ViewCulture.asp?Page=/Culture/archive/200612/CUL20061201a.html(CNSNews.com) - The California Court of Appeals ruled Thursday that a ballot proposition by San Diego voters to donate the property on which the Mt. Soledad Memorial sits to the federal government was constitutional.
In its 53-page decision, the three-judge panel for the Fourth Appellate District of the California Court of Appeals unanimously held that Superior Court Judge Patricia Yim Cowett erred in invalidating Proposition A, which was approved by 75 percent of voters in July 2005.
"Given the language of Proposition A and the official ballot argument in favor of the proposition, we cannot conclude the individuals who voted for the proposition acted in order to establish the Christian religion or favor that religion," wrote Associate Justice Patricia Benke.
The ballot initiative came about after the city refused to donate the cross and memorial to the federal government. A group called San Diegans for the Mount Soledad National War Memorial took just 23 days to gather 105,000 signatures.
Also, the court reversed a $275,000 attorney fee award received by an ACLU-supported lawyer for plaintiff Phillip Paulsen, the atheist who began the battle over the 43-foot-tall cross by filing suit against the city in 1989 and passed away a month ago.
Thursday's ruling drew praise from conservative groups that have been fighting to keep the memorial from being torn down.
"The California appeals court got it right," said Jay Sekulow, chief counsel of the American Center for Law and Justice (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," Sekulow added in a news release. Thursday's ruling "represents another important legal victory in the ongoing battle to keep the Mt. Soledad Memorial in place."
"We are quite pleased with the court's decision," said Charles LiMandri, the West Coast regional director for the Thomas More Law Center, which argued the case. "It protects the will of the people and their desire to preserve a historical, veterans' memorial for future generations."
As Cybercast News Service previously reported, the Mount Soledad case has generated national interest since 1998, when the city sold the property to the Mt. Soledad War Memorial Association in an effort to prevent the cross -- which was erected in 1954 to honor U.S. veterans -- from being torn down as a result of Paulsen's 1989 petition.
That sale originally was upheld but later ruled unconstitutional by the full panel of the 9th Circuit Court of Appeals in San Francisco and sent back to district court to work out a proper solution to the conflict.
This past May, Federal District Court Judge George Thompson told the city to remove the cross before Aug. 1 or face a $5,000-a-day fine. However, Supreme Court Justice Anthony Kennedy issued a stay of that ruling in July.
Also on Thursday, San Diego Mayor Jerry Sanders and City Attorney Mike Aguirre praised the court ruling and said they hoped it would put an end to the lengthy controversy.
"It's always possible that you could have a review by the California Supreme Court, but I would say that it's less likely that that will happen and more likely that this will become the final finding," Aguirre told reporters.
