Philip K. Paulson v. City of San Diego Mt. Soledad Memorial Association, Inc.

294 F.3d 1124 Philip K. PAULSON, Plaintiff-Appellant, v. CITY OF SAN DIEGO; Mt. Soledad Memorial Association, Inc., Defendants-Appellees. No. 00-55406. United States Court of Appeals, Ninth Circuit. Argued and Submitted En Banc March 21, 2002. Filed June 26, 2002. Jordan C. Budd, ACLU Foundation of San Diego & Imperial Counties, and James E. McElroy, Law Offices of James E. McElroy, San Diego, CA, for plaintiff-appellant. Casey Gwinn, City Attorney, and Anthony J. Shanley, Deputy City Attorney, The City of San Diego, and Charles V. Berwanger, Higgs, Fletcher & Mack LLP, San Diego, CA, for defendants-appellees. Appeal from the United States District Court for the Southern District of California; Gordon Thompson, Jr., District Judge, Presiding. D.C. No. CV-89-00820-GT. Before: SCHROEDER, Chief Judge, and PREGERSON, KOZINSKI, FERNANDEZ, RYMER, T.G. NELSON, HAWKINS, GRABER, W. FLETCHER, BERZON, and RAWLINSON, Circuit Judges. Opinion by Judge GRABER; Dissent by Judge FERNANDEZ. GRABER, Circuit Judge. 1 This appeal is the latest chapter in a protracted saga centered around a 43-foot-high Latin cross that stands atop Mt. Soledad in San Diego, California. In an earlier chapter, we…

Opinion by Judge GRABER; Dissent by Judge FERNANDEZ.

This appeal is the latest chapter in a protracted saga centered around a 43-foot-high Latin cross that stands atop Mt. Soledad in San Diego, California. In an earlier chapter, we held that the presence of the cross in a publicly owned park violates the California Constitution, and we therefore affirmed an injunction forbidding the city from maintaining the cross on public land. In this chapter, we hold that the way in which the City of San Diego sold the cross to a private entity, which now maintains the cross, also violates the California Constitution. Because both the constitutional infirmity and the injunction remain in place, we return the case to the district court to write the next installment.

BACKGROUND

The City of San Diego (City) owns Mt. Soledad, a 170-acre parcel of land that was dedicated to public use in 1916 as “Mt. Soledad Natural Park.” Although most of the park is undeveloped and is maintained in its natural state, the top of the mountain has been cleared. The cross in question, which is constructed of concrete, stands in the center of the clearing where it was erected by the Mt. Soledad Memorial Association…

dissenting.

This litigation has been in the federal courts for over 10 years, while Paulson and others have attempted to have the latest Mt. Soledad cross torn down. 1 Under the lash of court orders, including a prior appeal to this court, 2 the city finally satisfied the. district court that it had disposed of the cross and a sufficient amount of surrounding property in a neutral process that conveyed those to the highest private bidder. There is absolutely no relevant dispute over the historical facts as found by the district court. The property did go to the highest bidder; the purchaser was required to maintain a war memorial (the site had been given over to that general purpose since 1954); but there was no restriction whatsoever on the configuration of that memorial — nothing prescribed or proscribed the removal of the cross itself.

This case, therefore, presents us with pure legal questions. Those questions were answered with clarity and precision in an opinion by a panel of this court. Paulson v. City of San Diego, 262 F.3d 885 (9th Cir.2001), 3 rehearing en banc granted, 281 F.3d 812 (9th Cir.2002). Unfortunately, that excellent opinion 4 has been superseded by this en…