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Justice's decision suggests high court would hear case
By Greg Moran
UNION-TRIBUNE STAFF WRITER
http://www.signonsandiego.com/news/metro/20060708-9999-lz1n8cross.html
U.S. Supreme Court Justice Anthony M. Kennedy extended his temporary stay protecting the Mount Soledad cross yesterday until state and federal courts can hear appeals this fall by the city of San Diego to preserve the landmark.
In blocking a federal judge's order that the city remove the cross by Aug. 1 or face a $5,000 daily fine, Kennedy indicated that the full court would review the case if it were to come before the court.
Kennedy said the court, which refused three years ago to get involved in the dispute, may consider it because of two new factors favorable to cross proponents.
He cited legislation to designate the city-owned land a national veterans memorial and a ballot initiative in which San Diegans overwhelmingly voted to transfer the land to the federal government.
Kennedy's move is a big boost for cross supporters and the city in their efforts to preserve the La Jolla landmark, which is part of a veterans memorial.
The cross was ordered removed in 1991 by U.S. District Court Judge Gordon Thompson Jr. in San Diego federal court. Thompson said the cross was a religious symbol whose presence violated the state Constitution's ban on a government showing a preference for religion.
Mayor Jerry Sanders welcomed Kennedy's opinion at a news conference, recalling his oft-stated promise to do everything possible to retain the cross.
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“Today is validation that this was the right course of action,” he said.
James McElroy, the lawyer for Vietnam War veteran and atheist Phillip Paulson, who sued in 1989 to remove the cross, said he was surprised and disappointed.
“I certainly understand the court's logic, but I disagree with it,” he said.
In May, Judge Thompson gave the city until Aug. 1 to take down the cross or face the daily fine.
The city appealed the deadline order, seeking to block it while it appealed the case in state and federal courts. On Monday, Kennedy issued a temporary order that froze action until he ruled again.
That ruling came late yesterday afternoon. City Attorney Michael Aguirre said it was unusual in that the high court rarely intervenes when a case is still pending before a lower appeals court. Also, releasing an opinion outlining the reasoning is uncommon.
In the four-page opinion, Kennedy said that the two appeals should be allowed to go forward, since their outcomes could determine the fate of the cross. He also emphasized the importance of congressional legislation in 2004 that designated the site as a national war memorial.
That move came after the case had been appealed to the federal courts,including the Supreme Court, which in 2003 declined to hear the case. Kennedy said the effect of that legislation on the case “has yet to be considered.”
Moreover, Kennedy wrote that the legislation showing Congress' interest in preserving the memorial “makes it substantially more likely that four justices will agree to review the case” even if the city loses on appeal in federal court.
That bolstered the spirits of Phil Thalheimer, leader of a citizens group that is fighting to preserve the cross.
“It's a strong indicator that no matter how the (federal appeals court) rules, the Supreme Court will take this case,” he said.
Cross supporters, who have had years of setbacks in state and federal courts, believe they have a very good chance of winning if the case gets to the high court.
Charles LiMandri, a lawyer for Thalheimer's group, said that the court might see the case as an opportunity to redirect the law on church-state separation.
But Kennedy also left the door open to dissolving the stay, writing that “if circumstances change significantly, the parties may apply to this court for reconsideration.”
McElroy said he interpreted that to mean that if he wins in the appeals courts, Kennedy would be willing to lift his order blocking removal.
The cross battle is advancing on two legal fronts.
The city has an October hearing before the 9th Circuit Court of Appeals to argue that Thompson abused his discretion when in May he moved to enforce his 1991 ruling ordering removal of the cross. The city is arguing that was wrong because it was trying to comply with the order via Proposition A.
That proposition, passed last fall by 76 percent of voters, would hand the land over to the federal government, meaning the cross would no longer violate the state constitution.
But Superior Court Judge Patricia Yim Cowett also ruled against cross supporters, finding that the measure violated the California Constitution because it showed a preference for religion and amounted to aiding a religion.
The city has appealed that ruling to the state's 4th District Court of Appeal.
If that court upholds Cowett, the city will ask the state Supreme Court to review the matter.
Either way, Kennedy's order clearly shows that he wants the appeals processes in the state courts to fully resolve the issue, said Aguirre, who called that “a very significant legal development.”
Aguirre said Kennedy noted that if the state appeals court reverses Cowett – and allows the transfer to the federal government to go ahead – it could render Thompson's order to remove the cross moot.
The state appeals court in San Diego has placed that appeal on a fast track, meaning the case will likely be heard in the next couple of months. That appeal now becomes a crucial hearing in the long-running battle, both sides agreed.
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Greg Moran: (619) 542-4586; [email protected]
By Greg Moran
UNION-TRIBUNE STAFF WRITER
http://www.signonsandiego.com/news/metro/20060708-9999-lz1n8cross.html
U.S. Supreme Court Justice Anthony M. Kennedy extended his temporary stay protecting the Mount Soledad cross yesterday until state and federal courts can hear appeals this fall by the city of San Diego to preserve the landmark.
In blocking a federal judge's order that the city remove the cross by Aug. 1 or face a $5,000 daily fine, Kennedy indicated that the full court would review the case if it were to come before the court.
Kennedy said the court, which refused three years ago to get involved in the dispute, may consider it because of two new factors favorable to cross proponents.
He cited legislation to designate the city-owned land a national veterans memorial and a ballot initiative in which San Diegans overwhelmingly voted to transfer the land to the federal government.
Kennedy's move is a big boost for cross supporters and the city in their efforts to preserve the La Jolla landmark, which is part of a veterans memorial.
The cross was ordered removed in 1991 by U.S. District Court Judge Gordon Thompson Jr. in San Diego federal court. Thompson said the cross was a religious symbol whose presence violated the state Constitution's ban on a government showing a preference for religion.
Mayor Jerry Sanders welcomed Kennedy's opinion at a news conference, recalling his oft-stated promise to do everything possible to retain the cross.
Advertisement
“Today is validation that this was the right course of action,” he said.
James McElroy, the lawyer for Vietnam War veteran and atheist Phillip Paulson, who sued in 1989 to remove the cross, said he was surprised and disappointed.
“I certainly understand the court's logic, but I disagree with it,” he said.
In May, Judge Thompson gave the city until Aug. 1 to take down the cross or face the daily fine.
The city appealed the deadline order, seeking to block it while it appealed the case in state and federal courts. On Monday, Kennedy issued a temporary order that froze action until he ruled again.
That ruling came late yesterday afternoon. City Attorney Michael Aguirre said it was unusual in that the high court rarely intervenes when a case is still pending before a lower appeals court. Also, releasing an opinion outlining the reasoning is uncommon.
In the four-page opinion, Kennedy said that the two appeals should be allowed to go forward, since their outcomes could determine the fate of the cross. He also emphasized the importance of congressional legislation in 2004 that designated the site as a national war memorial.
That move came after the case had been appealed to the federal courts,including the Supreme Court, which in 2003 declined to hear the case. Kennedy said the effect of that legislation on the case “has yet to be considered.”
Moreover, Kennedy wrote that the legislation showing Congress' interest in preserving the memorial “makes it substantially more likely that four justices will agree to review the case” even if the city loses on appeal in federal court.
That bolstered the spirits of Phil Thalheimer, leader of a citizens group that is fighting to preserve the cross.
“It's a strong indicator that no matter how the (federal appeals court) rules, the Supreme Court will take this case,” he said.
Cross supporters, who have had years of setbacks in state and federal courts, believe they have a very good chance of winning if the case gets to the high court.
Charles LiMandri, a lawyer for Thalheimer's group, said that the court might see the case as an opportunity to redirect the law on church-state separation.
But Kennedy also left the door open to dissolving the stay, writing that “if circumstances change significantly, the parties may apply to this court for reconsideration.”
McElroy said he interpreted that to mean that if he wins in the appeals courts, Kennedy would be willing to lift his order blocking removal.
The cross battle is advancing on two legal fronts.
The city has an October hearing before the 9th Circuit Court of Appeals to argue that Thompson abused his discretion when in May he moved to enforce his 1991 ruling ordering removal of the cross. The city is arguing that was wrong because it was trying to comply with the order via Proposition A.
That proposition, passed last fall by 76 percent of voters, would hand the land over to the federal government, meaning the cross would no longer violate the state constitution.
But Superior Court Judge Patricia Yim Cowett also ruled against cross supporters, finding that the measure violated the California Constitution because it showed a preference for religion and amounted to aiding a religion.
The city has appealed that ruling to the state's 4th District Court of Appeal.
If that court upholds Cowett, the city will ask the state Supreme Court to review the matter.
Either way, Kennedy's order clearly shows that he wants the appeals processes in the state courts to fully resolve the issue, said Aguirre, who called that “a very significant legal development.”
Aguirre said Kennedy noted that if the state appeals court reverses Cowett – and allows the transfer to the federal government to go ahead – it could render Thompson's order to remove the cross moot.
The state appeals court in San Diego has placed that appeal on a fast track, meaning the case will likely be heard in the next couple of months. That appeal now becomes a crucial hearing in the long-running battle, both sides agreed.
--------------------------------------------------------------------------------
Greg Moran: (619) 542-4586; [email protected]
