Trunk v. City of San Diego
| Decision Date | 29 July 2008 |
| Docket Number | No. 06cv1597-LAB (WMc).,No. 06cv1728-LAB (WMc).,06cv1597-LAB (WMc).,06cv1728-LAB (WMc). |
| Citation | 568 F.Supp.2d 1199 |
| Court | U.S. District Court — Southern District of California |
| Parties | Steve TRUNK, Plaintiff, v. CITY OF SAN DIEGO, United States of America, Robert M. Gates, Secretary of Defense and Does 1 through 100, inclusive, Defendants. Mount Soledad Memorial Association, Real Party in Interest. Jewish War Veterans of the United States of America, Inc., Richard A. Smith, Mina Sagheb, and Judith M. Copeland, Plaintiffs, v. Robert M. Gates, Secretary of Defense, in his official capacity, Defendant. |
James E. McElroy, Law Offices of James E. McElroy, San Diego, CA, Justin S. Rubin, Wilmerhale, Matthew T. Jones, Eric R. Columbus, A. Stephen Hut, Jr., Wilmer Cutler Pickering Hale and Dorr, Daniel Mach, American Civil Liberties Union Foundation, Lane Dilg, ACLU Program On Freedom of Religion and Belief, Washington, DC, for Plaintiff.
James E. McElroy, Law Offices of James E. McElroy, San Diego, CA, Justin S. Rubin, Matthew T. Jones, Eric R. Columbus, A. Stephen Hut, Jr., Wilmer, Cutler, Pickering, Hale and Dorr, Daniel Mach, American Civil Liberties Union Foundation, Lane Dilg, ACLU Program on Freedom of Religion and Belief, Washington, DC, for Plaintiffs.
Thomas C. Stahl, US Attorneys Office, George F. Schaefer, Law Offices of George F. Schaefer, San Diego, CA, David L. Negri, US Department of Justice, Boise, ID, E. Kenneth Stegeby, Peter McVeigh, US Department of Justice, Washington, DC, for Defendants.
George F. Schaefer, Law Offices of George F. Schaefer, Thomas C. Stahl, U S Attorney CR, U S Attorneys Office Southern District of California, San Diego, CA, David L. Negri, US Department of Justice, Boise, ID, E. Kenneth Stegeby, Peter McVeigh, US Department of Justice, Washington, DC, for Defendants. Charles
V. Berwanger, Gordon and Rees, San Diego, CA, for Real Party in Interest.
Charles V. Berwanger, Gordon and Rees, San Diego, CA, for Real Party in Interest.
A Stephen Hut, Jr., Jonathan H. Siegelbaum, Wilmer Cutler Pickering Hale and Dorr, Lane Dilg, ACLU Program on Freedom of Religion and Belief, Washington, DC, for Plaintiffs.
U.S. Attorney CV, U.S. Attorneys Office Southern District of California, San Diego, CA, for Defendant.
ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
For 54 years, a Latin cross has stood as part of a veterans' memorial atop Mt. Soledad in the San Diego community of La Jolla. In 2006, Congress acquired the site by eminent domain from the City of San Diego, ostensibly to ensure its preservation. The Jewish War Veterans of the United States of America, Inc. ("Jewish Veterans" or "JV") and four individual plaintiffs brought suit against the United States, challenging Congress' taking of the Mt. Soledad site and the presence of the cross on federal property as violations of the Establishment Clause of the First Amendment. In an earlier ruling, this Court dismissed the challenge to the land transfer for lack of standing—a decision that is now final. Trunk v. City of San Diego, 547 F.Supp.2d 1144 (S.D.Cal.2007), appeal dismissed, ___ F.3d ___ (9th Cir., June 11, 2008) (table). Left to decide is whether permitting the cross to remain as part of the veterans' memorial amounts to an unconstitutional establishment of religion. Plaintiffs bear the burden of demonstrating the presence of the cross is unconstitutional. INS v. Chadha, 462 U.S. 919, 944, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983).
All parties1 agree the record is complete, and the Court may decide the issue on summary judgment. Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court recognizes and adheres to this standard.
The history of the Mt. Soledad memorial goes back nearly a century and is documented in large part in Ellis v. City of La Mesa, 990 F.2d 1518, 1521 (9th Cir.1993); see also Paulson v. Abdelnour, 145 Cal. App.4th 400, 407-08, 51 Cal.Rptr.3d 575 (Cal.App. 4 Dist.2006) (recounting history after 1993). The memorial is situated on a hill a few miles north of downtown San Diego, and commands a panoramic view of the surrounding area. Visitors come to the site not only to visit the memorial but to enjoy the view. The following facts are uncontested:
A redwood cross was first erected by private citizens on land owned by the City of San Diego on Mt. Soledad in 1913. Some time afterward, the site was designated as public parkland. The original cross was either stolen or destroyed in 1923, but it was later replaced with a cross made of stucco and wood. The second cross stood on Mt. Soledad until it was blown down on March 13, 1952. A coalition of religious and civic organizations then formed the Mt. Soledad Memorial Association ("MSMA"), with the goal of replacing the second cross with a new one.2 The new cross was erected in 1954 and has remained atop Mt. Soledad since. The cross is 29 feet tall (43 feet tall if the base is included), and is made of recessed concrete. A tall metal fence surrounds the cross and prevents access to it. Although the memorial comprises other symbols and objects attesting to the service and sacrifice of war veterans, it is only the cross as part of the memorial that is at issue.3
The Mt. Soledad memorial was officially dedicated on Easter Sunday, 1954, to fallen veterans of World Wars I and II and the Korean War. The La Jolla town council4 sponsored the ceremony and both religious and military leaders participated. Over the years, the site has been used for religious and non-religious events, including Easter sunrise services (some of which have been broadcast to troops overseas), veterans' reunions, memorial services, weddings, and family gatherings.5 There is little evidence of events before 1954, except for Easter services, which were held on the site even before the current cross was erected. There is no history of discrimination between religious and non-religious groups in the issuance of municipal permits to use the site.
After litigation against the City of San Diego over the cross' presence was initiated in 1989, the MSMA began making changes to the memorial. The cross was conspicuously marked with a bronze plaque noting its status as a veterans' memorial, and other features were added to the site. These include six large concentric walls displaying over two thousand engraved, formal black granite memorial plaques recognizing individual veterans, with room for over a thousand more. The plaques contain personal information, pictures, and symbolic elements (both religious and secular) and are installed at a substantial cost to the purchasers. The religious imagery on the plaques includes crosses, the Star of David, and emblems of other religions. Adjacent sidewalks invite visitors to view the plaques up close. Other additions to the memorial include brick paving stones commemorating veterans and supporters, and twenty-three bollards honoring community and veterans' organizations, encircling the walls. Finally, an American flag now flies from a large flagpole at the memorial.
In 2004, Congress passed a resolution recognizing the Mt. Soledad site as a national veterans' memorial, and agreeing to accept the property if the City of San Diego chose to donate it to the federal government. Public Law 108-447, 118 Stat. 2809, 3346 (2004). Congress' offer was apparently motivated by its desire to end the litigation over the presence of the cross that had dragged on in both state and federal courts since 1989. The City's attempt to donate the property was blocked in 2005 by a California Superior Court judge. See Paulson v. Abdelnour, 145 Cal.App.4th at 415, 51 Cal.Rptr.3d 575. Then in 2006, while the superior court's decision was on appeal,6 Congress exercised its takings power to acquire the site as federal property to be preserved as a veterans' memorial. Public Law 109-272, 120 Stat. 771 (2006). Public Law 109-272 passed the House of Representatives by a vote of 349-74, and the Senate by unanimous consent, and was signed into law by President Bush. The statute directs the Secretary of Defense to enter into a memorandum of understanding with the MSMA to maintain the property as a veterans' memorial. Other than this one general directive, the law does not require the memorial to be maintained in any particular manner.
This Court's Establishment Clause analysis relies heavily on two recent Ninth Circuit decisions, Card v. City of Everett, 520 F.3d 1009 (9th Cir.2008) and Buono v. Kempthorne, 527 F.3d 758 (9th Cir.2008) (), and on the Supreme Court's rulings in Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) and McCreary County v. ACLU, 545 U.S. 844, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005), on which the two Ninth Circuit rulings relied.
As a preliminary matter, the Court must determine whether Plaintiffs have standing to bring this lawsuit, more precisely whether they can show they have suffered actual injury owing to the presence of the cross on public land. At oral argument, counsel for the Congressional Amici disputed that Plaintiffs have been injured and asserted they lack standing. In Establishment Clause cases, standing requirements are at their nadir.7
Jewish Veterans claims associational standing. To establish associational standing, "the entity must show that (1) at least one of its members would have standing to sue in his own right, (2) the interests the suit seeks to vindicate are germane to the organization's purpose, and (3) neither the claim asserted nor the relief requested requires the...
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