WorldNetDaily - Lawyers Urge Appeals Court to Rule Mt. Soledad Claim is Moot - Case Should End Because San Diego No Longer Owns Land

November 18, 2006

There is no decision left to make in a 17-year-long claim against San Diego over the Mt. Soledad Veterans Memorial in California, two law firms have told a federal appeals court, because the city cannot do anything now anyway because the federal government owns the property.

Firms representing dozens of members of Congress and hundreds of thousands of other Americans have filed briefs with the 9th U.S. Circuit Court of Appeals over the dispute that has gone on so long the original plaintiff cited by the American Civil Liberties Union as an injured party has died.

Oral arguments were held by the court several weeks ago, and it followed with an order for the law firms to file briefs regarding the mootness of the case. Answering that call were lawyers for the Thomas More Law Center and the American Center for Law and Justice.

Earlier this year, Congress approved and President Bush signed legislation giving ownership and control of the memorial to the federal government. It had been under the jurisdiction of the city of San Diego earlier. That's why the city was named as a defendant when people alleged their rights were violated by the existence of the cross.

The lawsuit against the city over the memorial's cross had reached the 9th Circuit before the congressional action, and the lawyers now are arguing that the case, essentially, is over.

The ACLJ's amicus brief on behalf of 22 members of Congress said there's nothing left to decide.

"This is an important opportunity to bring to end to one of the legal challenges aimed at removing the Mount Soledad Memorial," said Jay Sekulow, chief counsel for the ACLJ. "There is simply no reason for this case to proceed since the federal government lawfully took ownership of the land on which the memorial sits.

"While there are other legal challenges that continue to move forward, we are hopeful the federal appeals court will dismiss this litigation against the city of San Diego. At the end of the day, we're confident all legal challenges to the Mt. Soledad Memorial will fail and a cross that's been in place for more than half a century will remain in place for years to come," Sekulow said.

There still are two pending claims, one in state courts and the other in federal courts against the federal government, over the memorial, the ACLJ noted.

The August law transferred all control to the federal government, so any claims against the city are moot, the legal team argued on behalf of California Congressman Duncan Hunter and other members of Congress including Todd Akin, Gresham Barrett, Eric Cantor, Michael Conaway, Barbara Cubin, John Culberson, Phil Gingery, Gil Gutknecht, Jack Kingston, John Kline, Kenny Marchant, Patrick McHenry, Mike McIntyre, Gary Miller, Marilyn Musgrave, Randy Neugebauer, Joseph Pitts, Jim Ryun, Todd Tiahrt, Dave Weldon and Lynn Westmoreland.

More than 170,000 people also have signed the ACLJ's petition to preserve the memorial.

In response to the order from the 9th Circuit Court, the Thomas More Law Center filed a brief detailing the reasons the case should be dismissed.

"The Court's recent order requesting additional briefing of mootness is good news it shows that the court is focusing on the proper issue. As we demonstrated during oral argument and in our most recent filing, the Constitution requires the Court to dismiss this case because it lacks jurisdiction to enforce the 1991 injunction ordering the City to remove the memorial cross on state constitutional grounds the City is no longer responsible for the cross, which now rests of federal land, and the California Constitution is inapplicable as a result," the law center said.