The Ninth Circuit Court of Appeals denied the city's request to freeze federal Judge Gordon Thompson Jr.'s order to remove the cross by Aug. 2 or face $5,000 in fines per day. In other words, the clock's still ticking.
The city is now asking the U.S. Supreme Court to step in and hear an appeal for the stay. In legalese, a "stay" would halt or freeze Thompson's injunction until the city's appeal before the Ninth Circuit Court is heard, which is set for mid-October.
Mid-October is nearly two months too late for the city, however, as Mayor Jerry Sanders has said that the city will remove the cross before paying the $5,000 fine.
It doesn't make any sense to have the oral arguments after the cross has been removed, said Charles LiMandri, the attorney representing the San Diegans for the Mount Soledad National War Memorial group that petitioned to place Prop A on the ballot last July. The proposal to transfer the memorial to the federal government passed with 76 percent of the vote.
"It's like inviting someone to the wedding and saying that the wedding is on but the engagement has been canceled," LiMandri said. "What are you going to show up to celebrate?"
Meanwhile, in the state courts, the city is appealing San Diego Superior Court Judge Patricia Cowett's ruling that Prop A was unconstitutional. As organizers of Prop A, the war memorial group will act as an aggrieved party in the case. The hearing will also come too late, however, if the Aug. 2 deadline isn't waived. The Fourth District Court of Appeal won't hear the case until mid-October. Nonetheless, the war memorial group is optimistic.
"We strongly believe that particularly the Fourth District (Court of Appeal) is going to overturn Judge Cowett's decision, which would essentially moot Judge Thompson's concern," said Phil Thailheimer, chairman of the war memorial group.
LiMandri is also hoping that the federal government will step in and take the property via eminent domain. Congressman Duncan Hunter, R-El Cajon, asked President George Bush to intervene in early May but has not yet received a response.
At the Congressional level, Hunter introduced a bill on June 27 to transfer the memorial to the federal government. Co-sponsors include Reps. Brian Bilbray and Darrell Issa.
James McElroy, the plaintiff's attorney, views the city's actions as frivolous. The city should focus on what to do with the cross on Aug. 2, said McElroy, who represents Philip Paulson, the atheist who first sued the city over the presence of the cross on government property.
"I don't think any reasonable attorney thinks they will win the appeal, and they're buying up valuable time," McElroy said.
Bill Kellogg, president of the Mount Soledad Memorial Association, is also pessimistic about the cross's chance in the appellate courts, but he doesn't blame the city for trying. Kellogg said that he believes five alternatives remain. Tearing down the cross is the first option "” the least favorable of them all "” followed by the alternative of covering up the emblem. The city could also choose to relocate the cross to a nearby church with the possibility of returning it if the appeals are successful. Another option would be to change the shape of the structure by adding perpendicular arms or inscribing the cross with military insignia.
"That would leave the original structure intact but it would also satisfy the order of the court and would involve much less expense, time and effort than relocating the cross," Kellogg said.
The final option would be for the city to pay the $5,000 per day fee, which would amount to $1,825,000 per year.
Judge Thompson first ordered the city to remove the cross in 1991. Since that time, the city has unsuccessfully attempted to sell the property three times and popular vote failed to transfer it to the federal government. Finally Thompson returned to his original injunction last month that the city remove the "constitutional infirmity" within 90 days or pay the fine.
Mount Soledad was first used as a war memorial park in 1914, according to the memorial association. The current cross was constructed in 1954 to honor veterans from the Korean War.
In 1999, the memorial association purchased the land surrounding the cross to construct the memorial walls that contain plaques, which are purchased by family or friends of veterans and inscribed with their names and other information.