Mt. Soledad Cross case continues against feds

The city of San Diego is now officially - and legally - no longer a party in the continuing 19-year court battle over the constitutionality of a Latin cross atop La Jolla’s Mt. Soledad.

A federal court has dismissed a lawsuit, Steve Trunk and Philip K. Paulson vs. the City of San Diego, filed against the city and the federal government after the U.S. government acquired the Mt. Soledad memorial property from the city by emminent domain on Aug. 14, 2006.

In their lawsuit, Trunk and the late Paulson asked the federal court to order removal of the cross from the Mt. Soledad Veterans War Memorial on grounds that the display of the cross on public property violated their state and federal constitutional rights because they are atheists and the cross is a religious symbol.

In handing down its decision, the federal court concurred with the San Diego City Attorney’s position that the city should be dismissed from the lawsuit because the federal government now owns the memorial property since its August 2006 transfer. The lawsuit now will proceed only against the federal government and not the city of San Diego, which also is now absolved from paying any plaintiffs’ attorney’s fees or costs in the pending case.

Sale of varying size plaques memorializing veterans at Mt. Soledad had suffered due to legal uncertainty over whether the cross would have to be moved to private property or not, and what consequence that might have for the rest of the memorial. But sales have returned to normal since the transfer of the cross property to the federal government more than a year ago. In fact, people now have more of an incentive to purchase them.

“Plaque sales have continued strong,” said Kellogg. “I think people are starting to realize it’s a limited inventory.”

Kellogg said the Association has sold about 2,200 plaques out of a total of 3,200 available, so time - and space - are running out. “If people want to honor a veteran,” noted Kellogg, “it would be better to act sooner rather than later. We’re selling plaques at a rate of about 20 a month. As we get closer and closer to the end, there will be fewer choices.”

McElroy vowed to continue the legal fight to have the Mt. Soledad cross removed to private property. “The fact that it’s a war memorial doesn’t make it any less of a religious symbol,” he said. “There are those who’ve fought, and died, for our country who don’t happen to be Christian. It should be removed to a church where it belongs. That’s the proper resolution. That’s the legal resolution.”

Plaintiffs’ attorney James McElroy was surprised the federal court judge dismissed the city outright from continuing involvement in the Mt. Soledad cross case, believing that decision was premature. “The bottom line is the city is involved,” said McElroy. “Even if the city is out of the lawsuit, if the cross is found to be unconstitutional on federal land - we’re right back to where we were, with the city owning the cross and the land. The city shouldn’t be trying to get out of it (lawsuit). They’re a necessary party.”

Though the tide would appear to have turned against the plaintiffs’ position in the Mt. Soledad cross constitutionality case over the past several months, McElroy remains convinced his side will still prevail. Legal precedent, for one, is on their side. “There have been 12 cases in our history, from all over the country, of crosses on public land and they’ve all been decided the same way, 12-0,” he said. “You simply can’t have a huge symbol of one religion being promoted by the government over all other religions.”

What this most recent development in the Mt. Soledad cross case means, said Charles Berwanger, attorney for the Mt. Soledad Veterans Memorial Association, is the legal focus has shifted away from an emphasis on the cross’s location. “If a (legal) remedy is to be ordered, that remedy has to deal with the cross, and not the underlying property,” Berwanger said. “The court concluded, given the facts, that the city really had no place in the lawsuit, and that the parties that really have a stake in the lawsuit are the plaintiffs and the U.S.A.”

Excerpts from the legal ruling in Steve Trunk and Philip K. Paulson vs. the City of San Diego, United States of America, tend to agree with the perception that where the cross is, legally, is no longer at issue.

“Trunk alleges he is a veteran and a resident of San Diego and would visit the memorial if the cross were removed ...,” states the court’s decision in the case. “The taking itself merely transfers ownership and does not by itself affect whether Trunk will be able to use the memorial. Trunk concedes he has no interest in seeing the memorial operated by the city rather than the federal government.

“The fact the United States wished the Mt. Soledad property to be subject solely to federal law is therefore not in itself improper and did not result in any cognizable injury to Trunk ... The Court is unaware of any case where a person with no ownership or occupancy interest in property has been found to have standing to challenge a taking of that property. Trunk has not met his burden of demonstrating he has standing to challenge the taking of the Mt. Soledad property ... This claim is therefore dismisssed for lack of jurisdiction.”

Transfer of the cross property to the federal government has changed the role of the Mt. Soledad Veterans Memorial Association, the organization which built the cross and still administers and maintains the mountaintop memorial, to that of caretaker, not owner. But aside from some mostly administrative changes, little about the day-to-day operation of the memorial site is any different. “It’s business as usual for us,” said Bill Kellogg, the Memorial Association’s president. “We’re still selling plaques, conducting veterans’ honorary ceremonies, still raising and lowering the flag each day.”

But things behind the scenes have changed a bit, admitted Kellogg. “We had to apply for a license from the Navy to be able to continue to operate the memorial,” he said. “We had to suspend collecting donations on site because you can’t do that on federal property. We’re in a position now where we have to notify our landlord (federal government) of what we’re doing.”