Focusing on the Litigation of Mount Soledad Cross, explore the Ballot measure challenged in court about the Attempted donation to Interior Department.
Ballot measure challenged in court However, the plaintiff in the federal court case filed a case in California Superior Court challenging the constitutionality of the proposition. On September 3, Superior Court Judge Patricia Yim Cowett issued a temporary restraining order barring the transfer until the issue was settled. Lawyers on each side presented their arguments on October 3, 2005. A key issue was the status of the area as a secular war memorial, given the fact that it was not developed as a memorial until ten years after the first lawsuit. Prior to the lawsuit, no plaque or marker designated or explained the site's status as a war memorial, and during the fifty years prior to the lawsuit, there were no ceremonies or recognitions of the Korean War or to war veterans at the site, only Easter Sunday services. A 1985 map of the San Diego area identifies the cross as the Mt. Soledad Easter Cross. A court document also refers to several references of the Easter Cross including, "...the U.S. Department of Commerce Coast and Geodetic Survey (indicating "Easter Cross" on chart)."The plaintiff argued that the ballot measure was unconstitutional because it resulted in an unconstitutional act—transferring the property to the federal government for the purpose of keeping the cross in its present location on public parkland, a purely religious symbol of one faith. The City argued that the purpose of the ballot measure was to determine the will of the people of San Diego with respect to the federal government's offer to accept a donation of the property. The private citizens' group which had sponsored the petition leading to ballot measure argued that display of the cross was not unconstitutional because the many significant improvements added to it removed any doubt that it is a genuine veterans memorial.
On October 7, 2005, Judge Cowett found the ballot measure unconstitutional. Her ruling stated: "Maintenance of this Latin Cross as it is on the property in question is found to be an unconstitutional preference of religion in violation of Article I, Section 4, of the California Constitution, and the transfer of the memorial with the cross as its centerpiece to the federal government to save the cross as it is, where it is, is an unconstitutional aid to religion in violation of Article XVI, Section 5, of the California Constitution."
Litigation was now occurring in both the state and federal courts, while legislation was also debated in the San Diego City Council. Congressional action made previous suits and decisions irrelevant by a law to transfer the memorial from city to federal ownership in 2006, moving the issue to federal court beginning with the decision on July 31, 2008 by U.S. Federal Judge Larry Alan Burns ruling that both the transfer and the cross were constitutional.  This was reversed by the Ninth Circuit Court of Appeals, in a decision that endorsed the transfer but ruled the sole Latin Cross unconstitutional.  The appeal of this decision was denied certiorari by the Supreme Court on June 25, 2012.On May 3, 2006, US District Court Judge Gordon Thompson Jr. issued an order for removal of the cross, pursuant to the permanent injunction levied by the court, within 90 days, or the city of San Diego will be fined $5,000 a day. Judge Thompson declared that "It is now time, and perhaps long overdue, for this Court to enforce its initial permanent injunction forbidding the presence of the Mount Soledad Cross on City property." The mayor Jerry Sanders said he plans on proposing an appeal to the decision by Judge Thompson. Sanders pointed out that over 75% of San Diego voters believe the cross should remain in place, as evidenced by the votes in favor of transferring the memorial property to the federal government. The head of the Mount Soledad Memorial Association, the private organization that operates the memorial, hoped that the cross will be taken down and moved to a nearby private property.On May 11, 2006, the San Diego Union-Tribune reported:
"Mayor Jerry Sanders on Thursday sought presidential intervention in the legal battle over the Mount Soledad cross, asking President Bush to use the power of eminent domain to take the city-owned property in La Jolla on which the memorial and cross sit. Sanders warned of the "uncertain future" of the monument and said he fully supported the federal government condemning the property to save the cross, a request first made late Wednesday by Rep. Duncan Hunter, R-Alpine. ... City Attorney Michael Aguirre weighed in on the issue Thursday afternoon – several hours after the mayor's press conference – and he questioned whether the request for federal condemnation of the property violated an existing judicial order. "Such a move may be viewed by the San Diego Superior and United States District courts as being in violation of existing judicial orders and could result in a contempt finding and or sanctions against the city of San Diego," Aguirre said in a statement."On May 23, 2006, the San Diego City Council voted 5–3 to appeal U.S. District Judge Gordon Thompson Jr.'s May 3 order to remove the cross.On June 2, 2006, Mayor Jerry Sanders announced that the city had filed an appeal of Judge Thomson's order to remove the cross. The city also asked that the appeal be ruled on by July 8. Sanders said that if the appeal was not granted then the city would comply with the order.On June 21, 2006, a three-judge panel of the 9th U.S. Circuit Court of Appeals declined to step in and suspend the $5,000 daily fine that will be imposed on the city if the cross wasn't removed from city property by August 1
Gordon Thompson Jr. Duncan Hunter certiorari La Jolla eminent domain San Diego Union-Tribune Latin Cross Easter Sunday California San Diego Easter Supreme Court Mount Soledad Ninth Circuit Court of Appeals Jerry Sanders ballot measure Korean War California Constitution