Tuesday, April 22, 2003
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Ruling on San Diego Cross Left Standing by U. S. High Court
By KENNETH OFGANG, Staff Writer/Appellate Courts
The U.S. Supreme Court declined yesterday to review a Ninth U.S. Circuit Court of Appeals ruling invalidating the city of San Diego’s sale of land containing a 43-foot high Latin cross to a private group which is maintaining it as part of a war memorial.
The court, without comment, turned down petitions by the city and the Mt. Soledad Memorial Association to review the decision.
City Attorney Casey Gwinn acknowledged yesterday that the city had little hope of obtaining review, given the limited number of cases that the high court accepts and the fact that the Ninth Circuit premised its ruling on the state Constitution’s broad ban on the establishment of religion. But the mayor and council felt the city had to “finish that process” of seeking review before looking at other options, Gwinn told the MetNews.
Gwinn said he was hopeful, after 14 years of litigation, that the case can now be settled. But he and other lawyers acknowledged that won’t be easy, because the memorial association has now spent $ 1 million, “in reliance on district court decisions,” Gwinn commented, to establish the site as a memorial to veterans.
‘Litigation Strategy’
James McElroy, the San Diego lawyer whose clients challenged the sale, accused the association of spending money as a “litigation strategy,” knowing all the time that adverse appellate rulings could jeopardize their ownership of the land. If the city is unwilling to “keep [the park] as public land and move the cross to some church somewhere,” he said, it will have to resell the land “in an open and fair sale.”
The association’s attorney, James Ferrara of the Virginia-based American Civil Rights Union, a conservative group, said his clients will insist on being compensated for the land if they cannot maintain in its present state, with the cross.
The city sold the land to the association in 1998 after the first appellate panel ruled that the presence of the huge sectarian symbol on public land violated the California Constitution.
That sale was challenged by Philip Paulson, an educator and avowed atheist backed by the Anti-Defamation League of B’nai B’rith and the ACLU. Paulson alleged that the bidding process leading to the 1998 sale was rigged in order to assure that the cross was not removed.
Long History
The presence of crosses on the site has a long history, dating back to 1913, The memorial association erected the present cross on the then-public land, with the city’s permission, and dedicated it as a veteran’s memorial in 1954.
A previous cross on the site was destroyed in a storm in 1952.
The presence of the cross on publicly owned land was declared to be an establishment of religion by U.S. District Judge Gordon Thompson Jr. of the Southern District of California in 1991, and the Ninth Circuit affirmed two years later. The city then attempted to satisfy the ruling by selling 222 square feet of land beneath the cross to the association at fair market value, with no request for bids and with an understanding that the cross would remain.
District Court Ruling
In 1997, the district judge ruled that the sale of such a small amount of land, without competitive bidding, to a group which expressly intended to maintain a religious symbol on it was unconstitutional. That ruling led to the 1998 sale, at which the association acquired the land for $106,000.
The city received four other bids—$100,000 from Horizon Christian Fellowship; $65,000 from the National League for Separation of Church and State; and $25,000 from the Freedom from Religion Foundation.
A Catholic group said it would be willing to pay $5,000 over the highest sealed bidder, but the city attorney said that was not a valid bid.
Paulson specifically challenged requirements that the property be used for a war memorial and that the bidders have experience in maintaining such memorials. He also objected to the city’s refusal to sell a larger parcel of land-the available parcel was about 15 percent of the property the city owned at the site—and its reservation of the right to reject the highest bid.
A Ninth Circuit three-judge panel agreed, but a 7-4 en banc decision went in favor of Paulson.
The problem with the second sale, Judge Susan Graber said, was that if a bidder wanted a secular memorial, it would have to have enough money to outbid the field and to remove the cross, whereas the memorial association or another bidder wanting the keep the cross as part of the memorial could do so at no additional expense.
“In short, by establishing a specified use as a condition of sale (the maintenance of a war memorial) and then providing gratis the means to satisfy that condition to only those bidders who supported the preservation of the cross, the City gave a direct, immediate, and substantial economic incentive to advance a sectarian message,” the judge wrote.
Copyright 2003, Metropolitan News Company