WorldNetDaily.com - Another Victory in the Mt. Soledad War Memorial Case

November 10, 2007
by WorldNetDaily.com

A California man who sued in federal court seeking to have a congressional decision nullified and a veterans' memorial cross on Mt. Soledad removed has lost on both counts, giving hope to memorial defenders the 18-year legal odyssey for the site soon will be over.

"We are very pleased with the court's decision and are hopeful that this epic legal battle will soon be resolved," said Pete Lepiscopo, of San Diego, an affiliate attorney for The Pacific Justice Institute, which has worked on amicus briefs in the case.

"There is a reason the U.S. Supreme Court, Congress, and the president intervened in this case to protect the Mt. Soledad War Memorial: this nation honors those who gave the ultimate sacrifice to insure such public expressions of faith can continue in this country," he said.

The case, which still has several minor issues pending, is the only remaining litigation over the existence of the cross at the war memorial in California. It challenged a law signed by President Bush in 2006 that actually accepted the transfer of ownership of the site from the city of San Diego to the federal government.

The 9th U.S. Circuit Court of Appeals earlier dismissed a challenge targeting the city, since the federal government now controls the land. Several hundred thousand Americans, including 27,000 from California, also signed a petition assembled by the American Center for Law & Justice to seek the preservation of the memorial.

The ACLJ represented itself and 20 members of the 110th Congress including U.S. Rep. Duncan Hunter, R-Calif., who sponsored legislation that transferred control of the Mt. Soledad Memorial to the federal government.

The case to remove the cross originally was brought on behalf of an atheist, Phillip Paulsen, who died in 2006. The dispute dates back to 1989, and at one point the arguments included an order for San Diego to take the cross down. But in 1998 the city sold the property to the Mt. Soledad War Memorial Association, a move 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 76 percent of the voters in July 2005, called for the city to donate the cross to the federal government as the centerpiece of the veterans memorial. Finally, Congress stepped and ordered the ownership of the land transferred to the federal government, a plan signed into law last year by President Bush.

As WND has reported, the cross was erected in 1954, and now honors veterans of World Wars I and II and the Korean War.

The latest decision from U.S. District Judge Larry Burns noted that the remaining plaintiff in the case, after Paulson's death, was Steve Trunk, but he had no standing to bring a complaint.

"Trunk has not met his burden of demonstrating he has standing to challenge the taking of the Mt. Soledad property by Public Law 109-272. This claim is therefore dismissed for lack of jurisdiction. His requests for a declaration that the taking violated his California state constitutional and U.S. Constitutional rights, and for the court to encourage the parties to abide by the earlier settlement agreement are likewise denied for lack of jurisdiction," the judge concluded.

"Trunk has not shown he has suffered an 'injury in fact,' consisting of 'an invasion of a legally protected interest which is concrete and particularized and actual or imminent, not conjectural or hypothetical," the court said.

"Last summer, after a court ordered San Diego to remove the war memorial, Congress and President Bush intervened by acquiring the land on which it sits. The atheists who have been fighting the cross for the better part of two decades filed a new federal lawsuit, alleging that the transfer was invalid," according to Pacific Justice.

"PJI attorneys, acting as amicus in the case, recognized significant jurisdictional problems with the new lawsuit and asked the court to consider them. Based on PJI's request, Judge Burns required additional briefing and yesterday issued a 19-page order agreeing with PJI that most of the claims were no longer valid, and the City of San Diego should no longer be a defendant," the law firm's statement said.

"The court also took the opportunity to note that there is nothing inherently wrong with a cross on public land," the statement said.

"This case has huge implications not only for San Diego and the West Coast, but for the entire nation," added Brad Dacus, president of PJI. "We will continue to fight until we obtain a final judgment that this time-honored war memorial like the fallen soldiers it honors can rest in peace."

The remaining questions, a spokesman for PJI told WND, were less substantive and the court ordered briefs be filed immediately by interested parties in order to dispose of those soon.

The latest lawsuit had wanted the court to issue both a preliminary and permanent injunction preventing the display of the long-standing cross on the memorial. But the judge's ruling noted a previous Order to Show Cause "took care to point out the fact that a large cross is located mountain is not an Establishment Clause violation, nor was the government ownership or non-ownership of land on Mt. Soledad, nor were mere efforts by officials or voters who wished the cross to remain where it was."

"Clearly, Trunk would prefer above all else that the California constitutional violations were brought to an end by removal of the cross, However, his wishes cannot give rise to standing," the court said. "Now those violations have ended, he has no standing to complain about the manner in which they ended."

Those state violations vanished when Congress assigned ownership of the land to the federal government, and that became law, the judge said.

"The United States is of course not limited by or subject to the California constitution and therefore cannot be liable for either violating or evading it," the judge found.

Richard Thompson, chief counsel for the Thomas More Law Center, has been representing San Diegans for the Mt. Soledad National War Memorial in the case, while Jay Sekulow, chief counsel for the American Center for Law and Justice, also has filed arguments in the case.