Paulson v. Abdelnour, D047702.

CourtCalifornia Court of Appeals
Citation145 Cal.App.4th 400,51 Cal.Rptr.3d 575
Decision Date30 November 2006
Docket NumberNo. D047702.,D047702.
PartiesPhilip K. PAULSON, Plaintiff and Respondent, v. Charles ABDELNOUR, as City Clerk, etc., et al., Defendants and Appellants; San Diegans for the Mt. Soledad National War Memorial, Real Party in Interest and Appellant; Mike Shelby, Intervener and Appellant.
51 Cal.Rptr.3d 575
145 Cal.App.4th 400
Philip K. PAULSON, Plaintiff and Respondent,
Charles ABDELNOUR, as City Clerk, etc., et al., Defendants and Appellants;
San Diegans for the Mt. Soledad National War Memorial, Real Party in Interest and Appellant;
Mike Shelby, Intervener and Appellant.
No. D047702.
Court of Appeal, Fourth District, Division 1.
November 30, 2006.

[51 Cal.Rptr.3d 579]

Michael J. Aguirre, City Attorney, and David J. Karlin, Deputy City Attorney, for Defendants and Appellants.

Robert Tyler, Jay Alan Sekulow and Erik M. Zimmerman for Advocates for Faith & Freedom and American Center for Law & Justice as Amici Curiae on behalf of Defendants and Appellants.

Brian Chavez-Ochoa, Valley Springs, for The National Legal Foundation as Amicus Curiae on behalf of Defendant and Appellant Charles Abdelnour.

Sue Ellen Wooldridge, Assistant Attorney General, Ryan D. Nelson, Deputy Assistant Attorney General, and Kathryn E. Kovacs for the United States Department of Justice as Amicus Curiae on behalf of Defendant and Appellant City of San Diego.

Law Offices of Charles S. LiMandri, West Coast Regional Office of the Thomas More Law Center, Charles S. LiMandri and Teresa Mendoza, Rancho Santa Fe, for Real Party in Interest and Appellant.

Timothy D. Chandler, Folsom, for The American Legion and The American Legion Department of California as Amici Curiae on behalf of Real Party in Interest and Appellant.

Edwin Meese III and Eric Carleson for The American Civil Rights Union as Amicus Curiae on behalf of Real Party in Interest and Appellant.

Robert P. Ottilie, San Diego, for Intervener and Appellant.

James E. McElroy, San Diego, for Plaintiff and Respondent.

BENKE, Acting P.J.

In 1954 the City of San Diego (City) permitted a private veterans group to construct and thereafter maintain a large Latin

51 Cal.Rptr.3d 580

cross (the cross)1 on city parkland at the top of Mount Soledad. In 1991 the United States District Court for the Southern District of California held that because a Latin cross is the preeminent symbol of Christianity, its placement on Mount Soledad violates California's prohibition against preference of a religion. The court granted a permanent injunction forbidding the presence of the cross and gave the City three months to comply with its order. What followed were two attempts by the City to divest itself first of the cross, then of the cross and part of the land on which it sits. Those efforts were found by federal courts to run afoul of article I, section 4 (the no preference clause) and article XVI, section 5 (the no aid to religion clause) of the California Constitution.

In December 2004 the United States Congress passed legislation (Consolidated Appropriations Act, 2005, Pub.L. No. 108-447, Div. J., § 116 (Dec. 8, 2004) 118 Stat. 2809 (Public Law No. 108-447), declaring that upon donation of the Mount Soledad site to the federal government it would be designated a national veterans memorial and placed under the control of the Department of the Interior. In July 2005 Proposition A was passed by the voters of San Diego. Proposition A mandates the donation. Plaintiff and respondent Philip K. Paulson sought, and the trial court granted, an order invalidating Proposition A. The trial court based its decision on both article I, section 4 and article XVI, section 5 of the California Constitution. This appeal by the City, and aggrieved parties Mike Shelby and San Diegans for the Mt. Soledad National War Memorial, follows.

We reverse.


Because of their significance to the issues before us, we begin with a detailed recitation of the history of the Mount Soledad cross and the passage of Proposition A.

A. History and Use of Mount Soledad's Crosses

The existing cross is not the first to stand at the top of Mount Soledad. In 1913 private citizens constructed a redwood cross on a 170-acre parcel owned by the City. In 1916 the City dedicated the property as parkland. Vandals destroyed the redwood cross in 1923. In 1934 someone replaced it with a stucco and wood cross, which was destroyed by a wind storm in 1952. Later in 1952, the City granted permission to a private organization, the Mount Soledad War Memorial Association (Association) to erect the present cross. The Association solicited private contributions and, without municipal funding, supervised and paid for the construction of the cross. The reinforced concrete cross is 29 feet tall. Including its base, the cross is 43 feet high and weighs 24 tons. It is visible from an interstate highway and is regarded as a geodetic marker in the city.

The cross was dedicated on Easter Sunday 1954 by the Association as a memorial to veterans of World War I, World War II and the Korean War. Although the Association maintained the site with primarily private funds, some public funds have in the past been used to assist with the maintenance. On January 30, 1991, the Association was instrumental in having the cross designated as an historical monument in the City of San Diego.

During the course of the City's multiple attempts to sell or otherwise transfer the

51 Cal.Rptr.3d 581

Mount Soledad site and proceedings in the federal courts voiding those attempts, the monument expanded. Over the years the Association invested what it estimates to be close to $1 million in upgrades. It appears nearly all of these improvements were completed at a time the Association believed it had valid legal title to the real property. At proceedings below, Paulson represented that by 2002 approximately 90 percent of the current improvements were completed. Today the memorial consists of six concentric walls capable of holding 3,200 black granite plaques purchased by donors who may have them engraved with the names and photographs of veterans. At the time of the proceedings in the superior court, approximately 1,600 of those plaques were in place honoring service men and women. The plaques include those dedicated to individuals from the U.S. Army, Navy, Marine Corps, Air Force, Coast Guard and the Merchant Marine. The memorial includes a flagpole and American flag, 23 bollards honoring community and veteran organizations and brick paving stones honoring veterans and supporters.

The Association has used the monument for secular and sectarian purposes. Following dedication the Association obtained a permit each year from the City to conduct sunrise services on Easter morning. The Association has also used the site to conduct at least one Memorial Day ceremony honoring veterans. The public uses the memorial as the site of weddings and, apparently, a few baptisms.

B. Legal History

In 1989 Paulson initiated an action in the United States District Court against the City, seeking to enjoin the City from allowing the cross to remain on public land in violation of the California and United States Constitutions. In response, the City urged the cross was an historic war memorial which no longer had any sectarian meaning. On December 3, 1991, the district court issued an injunction prohibiting the permanent presence of the cross at the Mount Soledad site. The court's ruling was upheld on appeal. (Murphy v. Bilbray (S.D.Cal.1991) 782 F.Supp. 1420, 1438, affirmed in Ellis v. City of La Mesa (9th Cir.1993) 990 F.2d 1518, cert. denied (1994) 512 U.S. 1220, 114 S.Ct. 2707.)

In order to comply with the ruling of the federal court, the City sought to sell to the Association for $14,500 the cross and a 222-square-foot plot of land underneath it. The sale was not by bid. It was structured as a negotiated sale to a nonprofit organization. Voter approval of the sale was required and the matter was placed on the ballot as Proposition F. The proposition sought approval to sell "that portion of Mt. Soledad Natural Park necessary to maintain the property as an historic war memorial." Proposition F passed and the City went forward with the sale. However, citing article I, section 4 and article XVI, section 5 of the California Constitution, the federal district court found the sale unconstitutional. (Murphy v. Bilbray, Sept. 18, 1997, Civ. No. 90-134, Civ. No. 89-820, 1997 WL 754604.)

In 1998 the City once again offered the site for sale. The Association agreed to quitclaim any interest it might have in the memorial to the future buyer in exchange for the City authorizing an expenditure of $14,500 to refund the Association its purchase money for the first sale. In its "Invitation for Purchase Proposals" the City stated it was "inviting proposals from private non-profit corporations interested in purchasing approximately one-half acre of property in the Mt. Soledad Natural Park for the purpose of maintaining an historic war memorial. The property is presently the site of a large, concrete,

51 Cal.Rptr.3d 582

Latin cross." (Paulson v. City of San Diego (9th Cir.2002) 294 F.3d 1124, 1127.) The City neither required nor precluded the retention or maintenance of the cross in its invitation for proposals. The City received 42 requests for the bid proposal packets and eventually five bids. Bids for the .509 acres of land were evaluated using a criterion that included the bid amount, financial capability of the purchaser, expertise on the use of historic war memorials and the proposed use, regardless of the retention of the cross. The Association offered the winning bid of $106,000, took title to the property and continued making improvements to the memorial.

Paulson challenged the second sale, arguing that the process was heavily weighted in favor of the Association and conferred a substantial benefit on religion. The sale was upheld at district and appellate court levels. However, in Paulson v. City of San Diego, supra, 294 F.3d 1124 the circuit court sitting en banc found unconstitutional the attempt to sell the land. The court held that by establishing the maintenance of a sectarian war memorial as a condition of sale and then providing gratis the means to satisfy that...

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