2006
Litigation was now occurring in both the State and Federal Courts, while legislation was also debated in the San Diego City Council. Congressional action made previous suits and decisions irrelevant by a law to transfer the memorial from city to federal ownership in 2006, moving the issue to federal court beginning with the decision on July 31, 2008 by U.S. Federal Judge Larry Alan Burns ruling that both the transfer and the cross were constitutional. This was reversed by the 9th circuit court of appeals, in a decision that endorsed the transfer but ruled the sole Latin Cross unconstitutional. The appeal of this decision was denied certiorari for review by the Supreme Court, on June 25, 2012
On May 3, 2006, US District Court Judge Gordon Thompson Jr. issued an order for removal of the cross, pursuant to the permanent injunction levied by the court, within 90 days, or the city of San Diego will be fined $5,000 a day. Judge Thompson Jr. declared that "It is now time, and perhaps long overdue, for this Court to enforce its initial permanent injunction forbidding the presence of the Mount Soledad Cross on City property." The current mayor, Jerry Sanders, says he plans on proposing an appeal to the decision by Judge Thompson. Sanders pointed out that over 75% of San Diego voters believe the cross should remain in place, as evidenced by the votes in favor of transferring the memorial property to the federal government. The head of the Mount Soledad Memorial Association, the private organization that operates the memorial, hopes that the cross will be taken down and moved to a nearby private property.
On May 11, 2006, Karen Kucher of the San Diego Union-Tribune reported: "Mayor Jerry Sanders on Thursday sought presidential intervention in the legal battle over the Mount Soledad cross, asking President Bush to use the power of eminent domain to take the city-owned property in La Jolla on which the memorial and cross sit. Sanders warned of the “uncertain future” of the monument and said he fully supported the federal government condemning the property to save the cross, a request first made late Wednesday by Rep. Duncan Hunter, R-Alpine. ... City Attorney Michael Aguirre weighed in on the issue Thursday afternoon – several hours after the mayor's press conference – and he questioned whether the request for federal condemnation of the property violated an existing judicial order. “Such a move may be viewed by the San Diego Superior and United State District courts as being in violation of existing judicial orders and could result in a contempt finding and or sanctions against the city of San Diego,” Aguirre said in a statement."
On May 23, 2006, the San Diego City Council voted 5–3 to appeal U.S. District Judge Gordon Thompson Jr.'s May 3 order to remove the cross.
On June 2, 2006, Mayor Jerry Sanders announced that the city had filed an appeal of Judge Thomson's order to remove the cross. The city also asked that the appeal be ruled on by July 8. Sanders said that if the appeal was not granted then the city would comply with the order.
On June 21, 2006, a three-judge panel of the 9th U.S. Circuit Court of Appeals declined to step in and suspend the $5,000 daily fine that will be imposed on the city if the cross isn't removed from city property by August 1
On June 26, 2006, San Diego County Congressmen Rep. Duncan Hunter (R-52nd), Rep. Brian Bilbray (R-50th) and Rep. Darrell Issa (R-49th) introduced House Report Bill 5683, a bill to preserve the Mt. Soledad Veterans Memorial in San Diego, California, by providing for the immediate acquisition of the memorial by the United States.
On July 3, 2006, Supreme Court Justice Anthony M. Kennedy issued a temporary stay in favor of the city and the cross's supporters to allow time for further appeals. However, Justice Anthony Kennedy was a swing vote on a related secular ruling in Lee v. Weisman, and his stay order does not indicate a particular bias in favor or opposition to the cross case.
On July 7, 2006, Supreme Court Justice Anthony M. Kennedy, in a 4-page decision, granted the city of San Diego's request for a stay pending a ruling on the city's appeal.
On July 19, 2006, House Report Bill 5683, a bill to transfer the Mount Soledad Cross to the federal government passed in the House of Representatives by a vote of 349–74. Sen. Jeff Sessions, (R-Ala.), introduced identical legislation in the Senate that would allow the federal government to take the Mt. Soledad property by eminent domain. President George W. Bush, on the day of the vote, issued a "Statement of Administration Policy" that "strongly" supported H.R. 5683. The Statement read, in part, "In the face of legal action threatening the continued existence of the current Memorial, the people of San Diego have clearly expressed their desire to keep the Mt. Soledad Veterans Memorial in its present form. Judicial activism should not stand in the way of the people, and the Administration commends Rep. Hunter for his efforts in introducing this bill."
On August 1, 2006, the US Senate approved (through procedural "unanimous consent"; not a recorded vote) an eminent domain plan to transfer a Latin Cross and the land underneath it to federal control in an effort to avoid a court-ordered removal of the cross that stands on Mt. Soledad Natural Park. The Plaintiff in this cross case seeks a court ordered injunction and stay by stopping the transfer until all of the legal issues have been adjudicated in the courts as well as alleging an abuse of power in exercising eminent domain.
On August 11, 2006, Steve Trunk, who is a San Diego resident, veteran, and atheist, was named and added as a Plaintiff to the old and a newly filed lawsuit. U.S. District Court Judge Barry Moskowitz heard Plaintiffs Paulson and Trunk argue the case of the federal involvement in the ownership of a Christian cross. Judge Moskowitz will rule if the federal land transfer is unconstitutional and if the presence of the cross on federal land is unconstitutional. The Plaintiffs have a preliminary restraining order before Judge Moskowitz, which would make the transfer null and void (ab initio). Plaintiffs' Attorney James McElroy accused the federal officials of using eminent domain in bad faith and with the sole purpose to keep the Mt. Soledad Easter Cross on a public park. "These people are sworn to uphold the constitution," McElroy said. "The president has no respect for the law. To do this now with two appeals pending shows disrespect for the court system. There's no reason they couldn't have waited for the appellate courts to decide this."
On August 14, 2006, President George W. Bush signed into law Bill HR 5683 that would transfer City of San Diego property from Mt. Soledad Natural Park along with a Latin Cross to the federal government by applying the powers of eminent domain.
On August 21, 2006, the American Civil Liberties Union representing the Jewish War Veterans of the United States of America filed a separate lawsuit against the U.S. government and Defense Secretary Donald Rumsfeld, charging that the continued display of the Mt. Soledad Latin cross on federally owned land unlawfully entangles government with religion and asks the Court to rule the 29-foot (9 m) tall display be removed from Mt. Soledad Natural Park.
On September 22, 2006, U.S. District Court Judge Barry Ted Moskowitz consolidated two separate cases that challenged the constitutionality of a Latin cross on government land atop Mount Soledad, involving a transfer to the US Department of Defense. The consolidated cases involved Philip Paulson and Steven Trunk and the other case was filed by the American Civil Liberties Union, which is representing the Jewish War Veterans, a Muslim, and several San Diego citizens. The 17-year original case brought by Philip Paulson versus City of San Diego was still pending with US District Court Judge Gordon Thompson Jr. and was also pending in the California State Courts, too.
On October 25, 2006, Philip K. Paulson, the original plaintiff in the 1989 lawsuit challenging the legality of the cross, died of liver cancer at the age of 59.
On November 30, 2006, the 4th District Court of Appeal overturned the October 7, 2005 decision by Superior Court Judge Patricia Yim Cowett that invalidated a voter-approved 2005 measure which authorized transferring land underneath the Mount Soledad cross to the federal government, thus declaring that the measure was constitutional.
Read more about this topic: Mount Soledad Cross Controversy