The attorney who for the last year has represented the coalition fighting to keep the cross on Mount Soledad will now represent the city, after being deputized by City Attorney Michael Aguirre.
Charles LiMandri, a lawyer with the Thomas More Law Center, represented the San Diegans for the Mount Soledad National War Memorial coalition throughout the referendum drive to overturn the City Council’s decision not to transfer the cross and surrounding memorial to the federal government.
Aguirre has repeatedly stated that he believes such a transfer would be unconstitutional because it would be done with the stated purpose of saving the cross. A recent ruling by Superior Court Judge Patricia Yim Cowett affirmed that position. Cowett issued a temporary restraining order barring the city from transferring the memorial, saying it demonstrated a preference for one religion and was therefore unconstitutional.
LiMandri had planned to petition the city for the right to appeal Cowett’s decision. Instead, he will be representing the city when Cowett hears arguments on her ruling Oct. 3.
LiMandri said he was pleasantly surprised when Aguirre approached him about serving as a deputy City Attorney, and that Aguirre made the move because he felt that city voters should be represented by someone who shared their viewpoint. Voters approved the transfer of the cross in July by three-quarters of the vote.
“Mr. Aguirre said we should give the people a chance to be heard on this,” he said. “We were able to produce the numbers with the referendum drive, and they have a right to have their voice heard.”
The lawyer on the other side of the transfer debate said the hiring would actually help his case.
“This is a really foolish move on Mr. Aguirre’s part,” said James McElroy, the lawyer for the man who originally sued to have the cross removed from city property.
“Mike is trying to show everybody that he’s fair,” McElroy said. “But if your objective going into court is to convince the court that you’re religiously neutral, which is what’s required, are you going to hire Billy Graham?”
Aguirre did not return phone calls requesting comment.
McElroy said the city’s hiring of LiMandri demonstrated a preference for Christianity because of LiMandri’s affiliation with Thomas More, a public interest law firm “dedicated to the defense and promotion of the religious freedom of Christians, time-honored family values and the sanctity of human life,” according to its Web site.
LiMandri said he was the right person to represent the city because he has spent more than 1,000 hours researching the case and because Thomas More specializes in constitutional law, neither of which are claims that could be made by the City Attorney’s office.
LiMandri said his own status as a Christian was irrelevant and did not demonstrate a preference for the religion on the part of the city.
“Who cares what I think? I’m just a lawyer,” he said. “I’m not the City Council. When you’re determining official government purpose, you’re not supposed to mind-read what is motivating the attorney.”
The move by the City Attorney to bring in outside council is uncommon, but not unprecedented, LiMandri said.
McElroy said the move was highly unusual because LiMandri and the City Attorney’s office have been on opposite sides of the constitutionality issue.
“I’ve been here for 30 years,” McElroy said, “and I’ve never heard of the City Attorney’s office calling in the guy advocating the opposite position.”
LiMandri’s appointment could lead to a fresh round of appeals if Cowett affirms her tentative ruling Oct. 3. He said his official retention with the city is now only confirmed through that hearing, but could be extended afterward.
"(Cowett) is not going to change her mind,” LiMandri said. “You could see that through the decision she wrote.”
It remains unclear if LiMandri would have the authority to appeal on behalf of the city if he is retained beyond Oct. 3.
“That has certainly been the tone and tenor of my discussions with them,” LiMandri said, “that the people have the right to have their side argued to the maximum extent of the law. My understanding is yes, I would be (authorized to make appeals), but not categorically preauthorized.”
McElroy said that Aguirre called him before deputizing LiMandri, to say the city would not appeal Cowett’s decision. He said he was not sure the City Attorney’s office had the authority to make appeals in the case, and thought such a decision would have to be made by the city council.
“Aguirre is taking the position that it’s his call, and if it is and he wants to give it to LiMandri, he can,” McElroy said. “But Mike is shirking his responsibility. We elected Mr. Aguirre, not Mr. LiMandri.”