Soledad cross protected by voters; court fights looming

A ballot measure to preserve the Mount Soledad cross on public land in La Jolla easily surpassed the two-thirds support it needed for approval Tuesday night.

But the voters' decision on Proposition A won't be the final word. The controversy heads back to court next month.

Two court dates are scheduled in the next three weeks. A Superior Court judge will examine the ballot measure's constitutionality Aug. 12, and a federal judge will hear cross-related arguments Aug. 15.

The proposition calls for the San Diego City Council to give the 29-foot cross, a concentric set of granite walls and the land around them to the U.S. Interior Department as a national veterans memorial.

Tuesday night, three dozen Proposition A backers at the Westgate Hotel greeted the early returns with cheers. Among them was Phil Thalheimer, chairman of a group called San Diegans for the Mount Soledad National War Memorial.

"Holy cow," Thalheimer said, looking at absentee-voting results that showed three out of four voters backing Proposition A. "It is better than I expected."

Attorney James McElroy, whose client filed a lawsuit challenging the presence of the cross on city land in 1989, called the vote meaningless.

"It still doesn't mean a damn thing," he said. "Voters should have never voted on it. It's a waste of taxpayers' money."

McElroy insists the transfer violates the U.S. and state constitutions despite claims by Proposition A supporters it will survive court challenges.

"I think they've acknowledged this is the last chance to save the cross," McElroy said. "And when the court tells them this is not going to work, what else have they got?"

Charles LiMandri, an attorney for the Thomas More Law Center, which fights for Christian ideals in court, said a legal battle will last for years.

"This is going to be going on past our lifetimes," said LiMandri, 49. "This culture war isn't going to end. ... We see this as a bigger battle. We're fighting for the minds, hearts and souls of America."

Joshua Gross, a spokesman for San Diegans for the Mount Soledad National War Memorial, said support at the polls could influence the judge.

"A judge is always going to be inclined to follow the will of the people, the will of the voters," Gross said. "The higher that number, the more inclined they'll be. That's just logical."

In 1991, U.S. District Judge Gordon Thompson Jr. ruled that having the cross on city land violated the state constitution. An injunction barring the cross from La Jolla park land was put on hold while all sides tried to find a solution.

Federal courts struck down two sales of the cross to the Mount Soledad Memorial Association, which built and maintains the site as a veterans memorial. A third sale was rejected in November by 60 percent of San Diego voters.

A week ago, Superior Court Judge Patricia Cowett said the measure needed more than a simple majority to pass because the city charter requires two-thirds voter approval for any change in the use of city park land. She applied the requirement because there was no guarantee Congress would not change the memorial's designation.

McElroy now wants Thompson to enforce his 1991 injunction and, if necessary, impose daily fines of $5,000 on San Diego for every day the cross stands.

He also has asked the judge to honor a deal between his client, Philip Paulson, and the memorial association to move the cross to private property.

McElroy said the cross could be moved within four months. LiMandri says he will exhaust all legal possibilities before that.

The City Council put Proposition A on the ballot in May after a successful signature drive forced a reconsideration of a March vote against the federal land transfer. Officials validated 73,000 signatures when 33,000 were needed.

The ensuing campaign to pass the measure raised nearly $150,000 in 10 weeks. About 30 cents of every dollar collected came from people who couldn't vote on the ballot measure because they live outside San Diego. Contributions came from as far away as Las Vegas and Eads, Tenn.

Expecting a high number of absentee ballots, Proposition A backers spent $27,000 to send postcards to absentee voters. More than 84,000 voters cast absentee ballots on the cross question.

McElroy and Paulson preferred to wage their battle in court, and no one else stepped into the void to campaign against Proposition A.

The memorial association stayed out of the campaign entirely, although the group's Web site outlined its concerns with the federal land transfer.

The association sent a draft memorandum of understanding to the National Park Service for approval before the election, but federal officials said it would be premature to respond to it.

Lacking formal assurances, the association was skeptical it would be able to continue selling memorial plaques and maintaining the site. Also unsettled is who owns the cross and the surrounding memorial walls. The association built the cross in 1954 and put up the walls five years ago.

Cowett deferred a decision on the ownership issue last week, although she said the association seemed to own the fixtures based on the evidence she reviewed.

Outside the courtroom, Deputy City Attorney David Karlin said the city could argue that it owned fixtures built on city land.

The association is challenging a November federal court ruling that the city owns the site. The association holds a deed from the city's second sale, and the city has the group's $106,000.

William Kellogg, president of the nonprofit memorial association, said the money should be returned to his organization with the passage of Proposition A.

"It seems the city should promptly reimburse us for the money we gave them," he said. "If it were the other way around, they'd be charging me interest."

Voters Have Spoken - The Cross still Reigns over San Diego

ANN ARBOR, MI. -- Despite fifteen years of adverse court rulings, city council decisions to remove the cross, a local war memorial associations agreement to settle the case by removing the cross, and last week’s surprise decision by a state judge requiring a two-thirds vote of the people before the city would be forced to donate the cross and memorial to the federal government as a national war memorial, the citizens of San Diego spoke loud and clear- - keep the cross where it is as it is. With 100 percent of the precincts reporting, unofficial results show that over 75 percent of the voters voted to keep the cross and war memorial in yesterdays voting.

The 43 foot concrete Mt. Soledad Cross has been the center of a war memorial on city land since 1954. However, in 1989, an atheist filed a federal lawsuit challenging its constitutionality because it was located on public property.

The Thomas More Law Center, a national public interest law firm based in Ann Arbor, Michigan, played an instrumental role in saving the cross. Its legal analysis was 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 on which the cross and memorial stood.

Commenting on the overwhelming voter support for the cross, an elated Richard Thompson, President and Chief Counsel of the Thomas More Law Center said, “This is a tremendous victory in an important battle, but the war is not over. The other side has not surrendered; court battles over the cross continue.”

Two court dates are scheduled within the next month. A federal judge will hear arguments over the cross on August 15th, and a state Superior Court judge will hear arguments on the constitutionality of the ballot measure on August 12th.

Chuck LiMandri, Director of the Law Center’s western regional office, personally played a significant role in both the federal and state lawsuits over the cross. LiMandri was instrumental in obtaining the support of area Congressmen, Duncan Hunter and Randy “Duke” Cunningham, both Republicans, who authored the bill authorizing the federal government to take over the memorial as a national war memorial. President Bush signed the bill into law in December 2004.

LiMandri also served as vice –chairman of the San Diegans for the Mount Soledad National War Memorial which was established to coordinate the signature drive to place the issue on the ballot after the city refused to donate the cross and memorial to the federal government. In a historical first, it took only 23 days for the group to gather 105,000 signatures.

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