'Opponents can't remove cross by suing San Diego'

Mt. Soledad cross near San Diego

Lawyers for an atheist who wanted a cross removed from the Mt. Soledad Memorial in San Diego can't reach their goal by suing the city, since the federal government now owns the land, according to an appeals court ruling.

"We argued from the start that there was no reason for this case to proceed since the federal government lawfully took ownership of the land on which the memorial sits," said Jay Sekulow, chief counsel for the American Center for Law and Justice.

His comments came with the announcement that the 9th U.S. Circuit Court of Appeals had issue a new order dismissing a lawsuit against San Diego as moot.

"The appeals court dismissed the suit agreeing with the argument that the case is moot because the federal government now owns the land on which the memorial sits," the announcement said.

The ACLJ, which had filed an amicus brief on behalf of 22 members of Congress with the appeals court, said the court's opinion "brings to an end one legal chapter" in the fight over the cross, which has been in the courts since the late 1980s.

The ACLJ had argued that since Congress, in a proposal sponsored by California Congressman Duncan Hunter, transferred control of the property to the federal government, and that plan was signed into law by President Bush in August, the city as a defendant was now out of the case.

There are, however, other legal challenges that have been launched against the memorial's cross, including a federal lawsuit against the government challenging the constitutionality of the memorial. The ACLJ also has filed briefs in another challenge within the state court system in California, officials said.

Just weeks earlier, another appellate level state court panel concluded that a voter measure that authorized transfer of the land to the federal government was proper.

The decision from another panel of justices by a 3-0 ruling overturned a decision by Superior Court Judge Patricia Yim Cowett that invalidated the measure. The court also reversed a $275,000 attorney fee award received by an ACLU-backed lawyer for plaintiff Phillip Paulsen, an atheist who died in 2006.

Charles LiMandri, the West Coast Regional Director for the Thomas More Law Center, said the conclusion protected the will of the people "and their desire to preserve a historical, veterans memorial for future generations."

Paulsen filed the lawsuit in 1989 and a court told the city to take the cross down. But in 1998 the city sold the property to the Mt. Soledad War Memorial Association, which again was challenged in court. The sale originally was upheld but later ruled unconstitutional by the full panel of the 9th Circuit Court of Appeals in San Francisco and remanded back to district court to work out a remedy.

Then Proposition A, passed by 75 percent in July 2005, called for the city to donate the cross to the federal government as the centerpiece of the veterans memorial.

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