Friday, December 1, 2006
Transfer of Mt. Soledad Memorial to U.S. Held Constitutional
By TINA BAY, Staff Writer
A voter-approved measure requiring the City of San Diego to give the federal government its cross-featuring war memorial atop Mt. Soledad did not violate the state Constitution, the Fourth District Court of Appeal ruled yesterday.
Div. One unanimously reversed a ruling by San Diego Superior Court Judge Patricia A.Y. Cowett that the city ordinance placing Proposition A on the July 2005 ballot, as well as the measure itself, embodied an unconstitutional preference for religion.
After the measure passed with 76 percent of the vote, Cowett granted a writ of mandate sought by San Diego resident Philip K. Paulson before the election. Paulson, an atheist who fought a 17-year legal battle to have the Mt. Soledad cross removed from public land, had asked Cowett to declare Proposition A unconstitutional and restrain the city from placing the measure on the ballot.
In addition to the city, Mike Shelby, who spearheaded efforts to place the measure before voters, and the San Diegans for the Mt. Soledad National War Memorial challenged Cowett’s ruling as aggrieved parties.
On appeal, Paulson—who died Oct. 25 of liver cancer—argued that statements by city officials referring to “the cross” during the public debate leading to the proposition’s adoption demonstrated impermissible religious preferences by the city.
But Justice Patricia D. Benke, writing for the Court of Appeal, pointed out that the transfer was accomplished by a vote of the electorate.
“We do not believe that the position of any one advocate in, or interpreter of, vigorous public debate may be declared to reflect the ultimate position of all voters,” she said. “Given the language of Proposition A and the official ballot argument in favor of the proposition, we cannot conclude the individuals who voted from the proposition acted in order to establish the Christian religion or favor that religion.”
The measure read, “Shall the City of San Diego donate to the federal government all of the City’s rights, title, and interest in the Mt. Soledad Veterans Memorial property for the federal government’s use of the property as a national memorial honoring veterans of the United States Armed Forces?”
Such language was neutral, Benke said. In addition, express references to the cross in the ballot argument favoring the proposition did not reflect an improper religious purpose. For example, one reference identified it as part San Diego’s landscape and quality of life, she explained.
The justices rejected Paulson’s suggestion that the public was tricked into voting on a measure that appeared neutral but actually preferred or established religion.
Benke explained that the decision on the cross’ fate was made by an educated public, after 17 years of open and rigorous debate which clearly addressed the purpose and meaning of the symbol.
“The history and the express intent of the city council in placing Proposition A before the voters reveals the fact of the Mount Soledad site was left to the democratic process,” the justice said.
The council initially adopted a resolution last March declining to donate the war memorial to the federal government. Following a referendum petition initiated by Shelby, however, it rescinded that resolution and issued the order placing Proposition A on a special July 2005 ballot.
Therefore, Benke said, “placing Proposition A on the ballot was an act of deference to political reality, not City support for a religion.”
The Court concluded that the transfer mandated by the measure did not violate either the state or federal bar against establishing religion, or the state Constitution’s prohibition against preferring or advancing religion.
Justices Richard D. Huffman and Gilbert Nares concurred in the opinion.
San Diego City Attorney Michael J. Aguirre told the MetNews the decision was a “very learned one” that he believes will bring the case to a conclusion.
“I think it will be the final word,” he said. “All the parties that have been involved have done an outstanding job. This is one of those cases in which our system has really worked, in the sense that everyone has had a say.”
Aguirre, who said he personally disagrees with the city’s position, added that Paulson was a very heroic man and a great American.
“He loved his country, he was a war veteran, and he had every right to do what he did,” the city attorney commented.
Paulson’s attorney, James E. McElroy, said the Court’s decision was “astounding.”
“It would be a little difficult for anyone familiar with the facts to come to any conclusion other than that the purpose of this gift to the federal government was to save the cross,” he remarked. “A trial court judge saw it completely differently. I think if there were a different panel or different member on the panel, they would’ve seen it completely differently.”
He would be asking the Supreme Court to review the case, McElroy said.
Paulson’s legal battle over the Mount Soledad cross began in 1989 with a federal lawsuit challenging the presence of the 43-foot-high, 24-ton, reinforced concrete Christian symbol on city-owned land. A private organization, the Mount Soledad War Memorial Association, had erected it in 1952 to commemorate veterans of the two world wars and the Korean war.
A U.S. District Court judge in 1991 found the symbol’s placement unconstitutional and issued a permanent injunction forbidding its presence. Two subsequent attempts by the city to divest itself of the land under the cross were invalidated by the same judge, who ultimately ordered the city to remove the cross or, effective Aug. 1, 2006, begin paying a penalty of $5,000 per day.
U.S. Supreme Court Justice Anthony Kennedy opened the door for the Proposition A appeal to proceed when he issued a stay of that order this past July.
The case is Paulson v. Abdelnour (San Diegans for the Mt. Soledad National War Memorial), 06 S.O.S. 5829.
Copyright 2006, Metropolitan News Company