Rescinding its prior decision not to transfer title to the Mount Soledad cross property to the federal government, the City Council voted 6-3 on May 17 to put the issue before voters once again.
The vote will take place in a July 26 special election to replace Mayor Dick Murphy, whose resignation takes place July 15.
Councilmembers Michael Zucchet, Toni Atkins and Donna Frye cast the three votes against putting the cross referendum on an election ballot.
The council vote was heaven-sent to crusading Christians, more than 70 of whom filled out speaker slips to testify, in often strident and impassioned tones, urging the council to continue the 16-year legal fight to keep the landmark war memorial cross on Mount Soledad no matter the cost.
Judge Gordon Thompson of the Ninth Circuit Court has ruled that a cross on city-owned land violates the state constitutional provision of separation of church and state. The state constitution bars religious symbols on public property.
The city’s attempts to save the cross on Mount Soledad have thus far proved fruitless. Previous sales to the highest bidder, the Mount Soledad Memorial Association, which built the cross in the 1950s to honor Korean War veterans, have been voided by the courts. It was ruled those sales constituted preferential treatment to the association.
Three City Council votes followed more than six hours of public and council debate over whether there exists a moral imperative to keep the historic Mount Soledad cross in place.
The City Council voted 5-3 in March to decline an offer by San Diego Congressmen Randy Cunningham and Duncan Hunter to transfer title to the Mount Soledad memorial site, which has been designated as a national war memorial, to the federal Parks Department in an attempt to save the mountaintop cross. The two congressmen have pledged to do what they can to assure the federal government will allow La Jolla’s Mount Soledad Memorial Association to maintain its operations, finish its plaque-laden memorial walls and continue its mission of honoring San Diego veterans, should the cross site be transferred.
Earlier this year, Cunningham and Hunter were successful in inserting a clause into a massive spending bill designating the Mount Soledad site as a national war memorial. After rescinding its previous position on transferring the cross to the federal government, the City Council voted 5-4 against a motion by councilman Jim Madaffer to transfer the cross property to the National Parks Service without a public vote.
Mount Soledad Memorial Association President Bill Kellogg told the City Council that they had been given verbal promises they would be allowed to continue to maintain and operate the cross site as they have, should the property be transferred to the federal government.
“The city wants an indemnification agreement so there’s no legal exposure to the city if they move ahead on this whole thing,” said Kellogg before the May 17 council meeting. “The two congressmen are saying this is a slam dunk, there’s no risk, the city gets out of litigation. The city’s position on this is a little more skeptical, saying, ‘If you’re so sure you won’t have problems, you will cover any such costs which might be incurred in trasferring this land to the federal government.’ ”
Kellogg added the memorial association’s opposition to transferring the cross site to the federal government has not changed.
“There are no assurances to us whatsoever that we will be able to do business as usual under the Federal Parks Department,” he said. “The top guys at both the Department of the Interior and Park Services promised us we would be able to do business as usual. That hasn’t changed our analysis one bit. Our point is, if you transfer us into that Park Service, it could kill us. We don’t have these promises in writing.”
Kellogg said the memorial association has spent more than $1 million improving the memorial, improvements and money that could be lost if the National Parks Service takes control. Kellogg has said previously that money-making enterprises, such as sales of memorial plaques, are not allowed by law in federal parks. He added that veterans would have to get special permission from the federal government to hold annual ceremonies honoring veterans.
Phil Thalheimer, who unsuccessfully challenged Scott Peters for his District 1 City Council seat in November, spearheaded a recent successful signature drive that garnered more than enough signatures from registered voters to have a cross referendum placed on an election ballot.
“We gathered more than 100,000 signatures in 23 days,” Thalheimer told the council. “Transfer the cross today, move it forward. Do the right thing. Listen to the city of San Diego.”
Attorney Charles Le Mandri joined Thalheimer in urging the council to reverse its vote and immediately turn the cross property over to the federal government. He urged the City Council to take a leap of faith in trusting the federal government to fulfill its pledge that the cross will be preserved.
“Most people don’t go into a marriage with a pre-nuptial agreement,” Le Mandri said.
Attorney Charles Berwanger, representing Mount Soledad Memorial Association veterans, likened the city’s agreeing to transfer the cross site without legal assurances it would be preserved to entering into an escrow agreement without any legal conditions. Berwanger warned the city could be found to be in contempt of court if it were to violate a long-standing court order that the cross be removed.
“It’s stupefying to me,” he said. “Transferring would, in effect, be giving away the memorial association’s property, with the