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It’s a 43-foot concrete cross perched atop Mt. Soledad, above San Diego, erected 50 years ago as part of a veterans’ memorial. Innocent enough, right? Not by a long shot. At least not in San Diego. During the past 15 years, the cross has sparked litigation that has gone up to the Ninth Circuit U.S. Court of Appeals — and has cost taxpayers hundreds of thousands of dollars — over charges that the cross was a religious symbol sitting unconstitutionally on city parkland. In addition to the suit, the public has voted on two ballot propositions over the cross’s fate, the most recent on Nov. 2, when San Diegans voted against letting the city sell the land beneath it. “I hate to think of the money that’s been spent on this,” said James McElroy, the solo practitioner representing plaintiff Philip Paulson. “I don’t know of another case where a city has resisted the law so long.” The suit, Paulson v. City of San Diego, 89 cv 820, has been to the Ninth Circuit at least three times, including arguments to justices en banc last year. The dispute has attracted amicus curiae briefs from the American Civil Liberties Union, the Thomas More Society and several veterans organizations. The land has been sold to — and then taken back from — a veterans memorial association twice. That group fought the winning battle against the third attempt by the city to sell it, with their ballot argument written by the attorney who successfully argued to take it from them twice before. And it’s not over yet. On election night, the church that had agreed to take the cross changed its mind — after the veterans memorial association based its entire ballot argument on saving the cross by moving it to the church. Both city and ACLU attorneys said they will continue to negotiate with the church, which would probably have to go through legal cartwheels because the cross exceeds zoning height limits of 30 feet, City Attorney Casey Gwinn said. “This has been incredibly frustrating for the [veterans association] members, for the city, for Mr. Paulson, for everyone,” Gwinn said. “It is a very complicated confluence of events.” No one is sure how much it has cost the city, which so far has had to pay $220,000 in fees to opposing attorneys. It all began in 1989, when Paulson filed suit pro se in federal court. He claimed that the cross, part of a veterans memorial erected in 1954, was a religious symbol sitting unconstitutionally on city parkland. In December 1991, U.S. District Judge Gordon Thompson found for the plaintiffs and ordered the city to remove the cross within three months, according to court records. The city appealed to the Ninth Circuit, which affirmed Thompson’s decision in 1992. The U.S. Supreme Court declined to hear the matter, remanding it back to Thompson. Meanwhile, the city decided to sell the land on which the cross stands, all 222 square feet of it, and went to voters for permission. In June 1992, Proposition F won 76 percent of the vote, and the land was sold to the Mt. Soledad Memorial Association. Paulson returned to federal court in 1994, challenging the sale of the land. In 1997, Thompson ruled that the sale was improper because there were no bids and the “postage stamp sized parcel of land,” as he termed it, was too small. So the City Council increased the parcel, in the midst of a park, to 0.38 acre and took sealed bids. The memorial association won at a bid of $106,000 in 1998. Meanwhile, Paulson took the second sale back to court. This time, Thompson ruled that the process had integrity and let the sale stand. So Paulson appealed to the Ninth Circuit, where three justices unanimously backed Thompson. And then Paulson sought and won a hearing en banc, held in 2002. The 11-justice panel reversed the other rulings and found the bidding process to be unfair, sending the cross case back to the district court once more. In October, Thompson ruled that the deed issued by the city was void, and that the city owns the land. So the city has put the question of whether it should sell the land on the ballot again. Marty Graham is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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