The City Council voted last night to continue fighting a 17-year-old battle for the survival of the Mount Soledad Cross in La Jolla, at least for the next few weeks.
By a vote of 5-3, the council decided to appeal two recent decisions handed down by judges against the constitutionality of the 30-foot-tall concrete cross, which stands at the center of a war memorial atop Mount Soledad.
U.S. District Judge Gordon Thompson, Jr. ruled earlier this month that the cross must be removed from city property or the court will begin fining the city $5,000 for every day the cross remains standing on public land.
Last July, San Diego voters passed Proposition A, which sought to transfer the cross and the land it sits on to the federal government. But San Diego Superior Court Judge Patricia Yim Cowett stymied hopes of moving the cross to federal land when she ruled, two months later, that Proposition A was unconstitutional and therefore null and void.
Tuesday night the council decided to continue in its efforts to save the cross as it is and where it is, a battle the city has waged since the original complaint was made against the cross in 1991. That lawsuit was made by Phillip Paulson, who is an atheist and contends that it's unconstitutional to house the religious symbol on city-owned land.
The motion passed by the council was recommended by Mayor Jerry Sanders. He asked the council to appeal both decisions and to ask for a stay of Thompson's decision. A stay essentially buys the city more time to pursue its legal appeals without being subjected to the $5,000-a-day fines.
Councilwomen Donna Frye and Toni Atkins and Council President Scott Peters voted against the action, while Councilmen Jim Madaffer, Brian Maienschein, Tony Young, Kevin Faulconer and Ben Hueso supported continuing the battle. Hueso, who represents District 8, had been largely considered the swing vote on the issue, as he had not made his position on the cross public prior to the vote.
By voting to seek the stay, the council has essentially put off making a final decision about whether the legal battle is worth pursuing even if it means costing the city $5,000 a day. Essentially, the city has a few weeks to request the stay. If it gets it, then the sting is effectively taken out of Thompson's decision and the city will be free to pursue its appeals without the threat of hemorrhaging cash. If the stay is denied, which City
Attorney Mike Aguirre opined will probably happen, then the city will be faced with making the tougher decision about whether it wants to carry on the battle.
"It would be hard for the council to say that, as far as we've come, we can't stand another six weeks of litigation," said Peters, who acknowledged that, should the stay be denied, the council will be facing a much tougher choice about the future of the cross.
The council session was marked by the melodrama which has become the mainstay of public debate on this issue.
In a series of public statements which ranged from almost incomprehensible to downright vicious, supporters of both sides of the battle put forth their case to the council members who - when they were even listening - spent most of the time looking either bored or awkward.
Hud Collins, a retired military officer, spat out a ferocious attack on the City Council for even considering supporting the cross any longer.
"I didn't fight to have a cross on top of that hill," he said. "It's a disgrace."
Bill Daniel, an impassioned cross advocate, spoke against the separation of church and state, and said that he was "hoping for a David" to save the cross from the judges who would have it taken down.
"You have the power to stop this," he implored the council. "You represent us, judges don't."
Whether the council was swayed in any way by the testimony or by the legal advice of
Aguirre, who cautioned that the chance of winning an appeal of the judge's decisions was "very remote," is anybody's guess.
Before the meeting, both sides seemed to expect the council to vote in favor of the motion. James McElroy, the attorney who represents Paulson in the case, said after the meeting that he had held out some hope that Hueso would come out against the motion, but that he had never really expected anything other than the council supporting the cross.
However, McElroy said that he is optimistic that he may be nearing the end of the legal battle. He said Sanders' position has clearly "softened" on the issue, and that it seems the mayor, and the city, are not willing to carry on fighting for the cross if it means paying a daily fine.
"If the stay is not granted then I think the City Council's going to reconsider this, and I think they're going to be hard-pressed to pay $5,000 a day," he said.
Meanwhile, the cross supporters are hedging their bets. They are hoping that letters sent last week by U.S. Rep. Duncan Hunter R-El Cajon and Sanders to President Bush asking him to transfer the cross to federal land, which would provide an alternate route to preserving the monument.
There has been no word from the White House so far, but Charles LiMandri, who is leading the legal defense of the cross, said he expects something within a few days.
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