Kong

MEMORANDUM *

The district court’s factual finding that the sale of the Mount Davidson parcel “was conducted by means of an open and public auction” finds strong support in the record. Invitations to bid were published five times in the newspaper designated by the Board of Supervisors for publication of official City advertising. Plaintiff Kong must have seen or been informed of this publication, because he attended the public tour and inspection detailed therein. Further, plaintiffs submit no reason why the district court, as finder-of-fact, clearly erred in deciding to believe the testimony of the Mayor’s secretary that “any delay in responding to [plaintiff Messina’s inquiry] was not the result of any desire to enhance the prospects of bidders favoring retention of the Cross.”

The remedy fashioned by the parties in Carpenter v. City & County of San Francisco, 93 F.3d 627 (9th Cir.1996), adequately resolved any No Preference Clause violation — the Cross is now located on private property. See Ellis v. City of La Mesa, 990 F.2d 1518, 1525 (9th Cir. 1993) (“As a threshold consideration [in a No Preference Clause inquiry], we must determine if the display is on public…

concurring.

I agree with the majority that there is sufficient evidence in the record to support the district court’s ruling that the auction was properly conducted. Were I deciding this case without the constraint of our very recent decision in Paulson v. City of San Diego, 262 F.3d 885 (9th Cir.2001), however, I would conclude that the present arrangement violates the State’s “no preference” clause 1 and the Constitution’s Establishment Clause. I find it highly significant that the land in question was part of a public park that had an impermissible religious cross on it, and then was conveyed to private parties with a requirement that the land remain open to the public. From the public’s viewpoint, noth *619 ing has really changed; the land that was public as part of the park remains public despite the change of title, and the religious display remains on it. See Marsh-field, 203 F.3d 487, 495 (7th Cir.2000). In essence, the land has become a public forum in which only one group can maintain a particular religious symbol. See id. The City’s disclaimers, although well-phrased and explicit, are not enough, in my view, to overcome the perception arising from the actual use of the…