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The city of San Diego will appeal a court ruling that nullified an overwhelming vote by its citizens to save a historic cross that sits on public land.
Attorney Charles LiMandri, who represented the city in the case, told World Net Daily yesterday that newly elected Mayor Jerry Sanders informed him of the decision to appeal the October 7 ruling by San Diego Superior Court Judge Patricia Yim Cowett.
Cowett's decision effectively overturned Proposition A, passed by 75% of voters in July, which called for the city to donate the cross to the federal government as the centerpiece of a veterans memorial.
But Cowett ruled such action would be an unconstitutional aid to religion.
The conflict arises from an ACLU lawsuit challenging the constitutionality of the 29-foot concrete structure, which has been the center of a war memorial on city land since 1954.
Deputy City Attorney David Karlin confirmed to WND that Sanders intends to appeal the decision. Karlin explained that the city cannot file its appeal until the court signs an entry of judgment, which must be requested by the plaintiff. When that occurs, likely some time this month, the city will then have 60 days in which to file an appeal.
LiMandri, who works with the Thomas More Law Center, a public interest group, believes the case ultimately will be decided by the US Supreme Court.
He has offered his services again to San Diego pro-bono, but the city has not decided yet who will represent it in the new legal round of appeal.
The Law Center provided legal analysis that formed the basis for a federal law that declared the cross and memorial as a National War Memorial and authorized the federal government to receive a donation of the land.
A bill authorizing the federal government to take over the memorial was authored by Republican US Representatives Duncan Hunter and Randy Cunningham. President Bush signed the bill into law in December.
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.
The battle began in 1989 when Phillip Paulsen, an atheist, filed suit, and a court ordered the city to remove the cross. San Diego responded by placing the property up for sale, with the approval of 76% of voters. But the subsequent sale was ruled unconstitutional after Paulsen objected, arguing the sale had the effect of preserving the cross.
Paulsen argues that the cross is a violation of the First Amendment's ban on government establishment of a religion.
In 1998, the city sold the property to the Mt. Soledad War Memorial Association, which again was challenged in court. The sale originally was upheld but later ruled unconstitutional by the full panel of the 9th Circuit Court of Appeals in San Francisco and remanded back to district court to work out a remedy.
During its brief period of ownership, the Memorial Association made significant improvements, including extensive landscaping and the addition of more than 3,000 plaques honoring military veterans.
- (This update is courtesy of the The Thomas More Law Center.)
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