San Diegans for the Mt. Soledad Nat'l War Mem'l v. Philip K. Paulson. City of San Diego, Nos. 05A1233

• Decision Date: 07 July 2006
• Docket Number: Nos. 05A1233,05A1234.
• Citation: 165 L.Ed.2d 941,75 USLW 3017,548 U.S. 1301,126 S.Ct. 2856
• Parties: SAN DIEGANS FOR THE MT. SOLEDAD NATIONAL WAR MEMORIAL, v. Philip K. PAULSON. City of San Diego, California, v. Philip K. Paulson.
• Court: U.S. Supreme Court

548 U.S. 1301

126 S.Ct. 2856

165 L.Ed.2d 941

75 USLW 3017

SAN DIEGANS FOR THE MT. SOLEDAD NATIONAL WAR MEMORIAL,

v.Philip K. PAULSON.

City of San Diego, California,

v.Philip K. Paulson.

Nos. 05A1233, 05A1234.

Supreme Court of the United States

July 7, 2006.

Justice KENNEDY, Circuit Justice.

In this long-running federal-court litigation the United States District Court for the Southern District of California has ordered that, within 90 days of May 3, 2006, the city of San Diego, California, must comply with an earlier injunction, affirmed on appeal, that barred the city from maintaining a prominent Latin cross at a veterans' memorial on city property. The premise of the injunction was that the cross' permanent presence there violates the California State Constitution. See Murphy v. Bilbray, 782 F.Supp. 1420, 1426–1427, 1438 (S.D.Cal.1991), aff'd, Ellis v. La Mesa, 990 F.2d 1518, 1520 (C.A.9 1993), cert. denied sub nom. San Diego v. Paulson, 513 U.S. 925, 115 S.Ct. 311, 130 L.Ed.2d 274 (1994); see also Paulson v. San Diego, 294 F.3d 1124, 1133, and n. 7 (C.A.9 2002) (en banc) (holding that a proposed sale of the memorial violated the state constitution), cert. denied, 538 U.S. 978, 123 S.Ct. 1786, 155 L.Ed.2d 666 (2003). The city has appealed from the District Court's order to the United States Court of Appeals for the Ninth Circuit. The Court of Appeals has ordered expedited briefing and scheduled oral argument for the week of October 16, 2006; it denied, however, a motion to stay the District Court's order pending appeal. In No. 05A1234, the city of San Diego has applied to me, as Circuit Justice, for a stay pending appeal. In No. 05A1233, the San Diegans for the Mt. Soledad National War Memorial, a proposed intervenor in the case, likewise applies for a stay. On July 3, 2006, I issued a temporary stay pending further order. I now grant the city's application, while denying the proposed intervenor's application as moot.

In considering stay applications on matters pending before the Court of Appeals, a Circuit Justice must “try to predict whether four Justices would vote to grant certiorari should the Court of Appeals affirm the District Court order without modification; try to predict whether the Court would then set the order aside; and balance the so-called ‘stay equities.’ ” INS v. Legalization Assistance Project of Los Angeles County Federation of Labor, 510 U.S. 1301, 1304, 114 S.Ct. 422, 126 L.Ed.2d 410 (1993)O'Connor, J., in chambers); see also, e.g.,Heckler v. Redbud Hospital Dist., 473 U.S. 1308, 1311–1312, 106 S.Ct. 1, 87 L.Ed.2d 677 (1985) (Rehnquist, J., in chambers). “This is always a difficult and speculative inquiry.” Legalization Assistance Project, supra, at 1304, 114 S.Ct. 422. Although “a stay application to a Circuit Justice on a matter before a court of appeals is rarely granted,” Heckler, 473 U.S., at 1312, 106 S.Ct. 1 (internal quotation marks omitted), consideration of the relevant factors leads me to conclude that a stay is appropriate in this case.

To begin with, the equities here support preserving the status quo while the city's appeal proceeds. Compared to the irreparable harm of altering the memorial and removing the cross, the harm in a brief delay pending the Court of Appeals' expedited consideration of the case seems slight. In addition, two further factors make this case “sufficiently unusual,” ibid., to warrant granting a stay. First, a recent Act of Congress has deemed the monument a “national memorial honoring veterans of the United States Armed Forces” and has authorized the Secretary of the Interior to take title to the memorial on behalf of the United States if the city offers to donate it. § 116, 118 Stat. 3346. Because this legislation postdates the Court of Appeals' previous decisions in this case, its effect on the litigation has yet to be considered. Second, San Diego voters, seeking to carry out the transfer contemplated by the federal statute, have approved a ballot proposition authorizing donation of the monument to the United States. While the Superior Court of California for the County of San Diego has invalidated the ballot proposition on the grounds that the proposed...