Dan Eaton, SD attorney with Seltzer Caplan McMahon Vitek
Bruce Bailey, president of the Mt. Soledad Memorial Association
Related Story: Mount Soledad Cross Dispute Far From Over
MAUREEN CAVANAUGH: Our top story on Midday Edition, the long dispute over a cross on top of Mount Soledad in La Jolla could be entering its final phase. A federal judge ruled last Thursday that the cross is unconstitutional and should be removed. For more explanation on this decades-old controversy I'd like to welcome my guests. Dan Eaton is a San Diego attorney with Seltzer Caplan McMahon and Faraday, and Dan, welcome back to the show.
DAN EATON: Nice to see you, Maureen.
MAUREEN CAVANAUGH: Bruce Bailey joins us as well. He's president of the Mount Soledad Memorial Association and Bruce welcome to the show.
BRUCE BAILEY: Thank you very much, Maureen.
MAUREEN CAVANAUGH: Now Dan, you've been following this case for years it's become one of San Diego's most convoluted legal controversies. Can you remind us of the essence of this case?
DAN EATON: Well the essence of this case, the basic issue Maureen is and always has been whether when you look at the Mount Soledad site you see fundamentally a religious cross that incidentally includes a Veterans Memorial, or whether you see if Veterans Memorial that incidentally includes a cross that meaning that transcends its conventional association with Christianity.
MAUREEN CAVANAUGH: Why is across there in the first place. What is this location?
DAN EATON: Of course that's part of the issue as to why it's there. Was erected as a war memorial in 1954 on Easter Sunday as a veterans memorial. Originally it was not put there for that purpose. But the original cross of course was burned down. So the question of why it is there is really in the eye of the beholder. Some people say it is they are fundamentally as a Veterans Memorial and others say well it's conventional meaning it's a Christian symbol overwhelms any incidental Veterans Memorial Association it may come to have had.
MAUREEN CAVANAUGH: Tell us about Judge Larry Burns ruling last week, Dan.
DAN EATON: What he said in light of a 2011 ruling by the ninth circuit Court of Appeals which appealed the original order saying that the cross could stay that it didn't offend the establishment clause of the First Amendment that the cross in fact based on what the Ninth Circuit said in reversing his order had to come down. Maureen, understand that the Ninth Circuit in order of Judge Burns on remand to make that finding that the cross had to come down. What the Ninth Circuit ruled in 2011 is that the site in its current configuration with a 43 foot tall cross from base to the top, the cross itself is 29 feet, 24 tons, could not stand in its current configuration. The actual remedy was left to George Burns and Judge Burns said look, the Ninth Circuit made it very clear that the cross at least in its current form had to come down. I as a lower court judge think I was right the first time in allowing the cross to stay in light of its meaning as a war memorial, but nonetheless I'm bound by the Ninth Circuit and therefore the court to order that the cross be removed within 90 days.
MAUREEN CAVANAUGH: Since the rulings have been going sort of back and forth through the years, why is it that this ruling has any particular significance?
DAN EATON: The reason it has significance is it's a final judgment as to remedy. You see that was the issue that kept the Supreme Court in 2012 from accepting review of the 2011 Ninth Circuit ruling in the first place. They said well the Ninth Circuit didn't exactly require that the cross come down. Maybe you could come back to see us after there's a final judgment. And let's be clear, George Burns's ruling is that final judgment.
MAUREEN CAVANAUGH: Gotcha. So who is suing to have the cross removed from Soledad in the current case and have the same groups been arguing this case all along? I believe the case started back in the late 80s.
DAN EATON: The case started, I Looked at the actual date May 1, 1989 which was days before I got my law degree and I'm not a young lawyer anymore, Maureen. That's how long it is it is dated my entire career. The fact is that the parties have shifted over the years. In fact the original plaintiff died in 2006. But the essential interest at the heart of the case have remained the same. You have the Jewish war veterans come in. Represented by the ACLU, when the federal issue started to be raised. They brought a lawsuit that was consolidated and so forth. But the by the blindness all the parties, the names have changed, city government, federal government has committed various points the basic issues Maureen have remained the same which is whether under the California Constitution no preference clause or the U.S. Constitution the site in its current configuration could stand. And that's what this fight has been all about for nearly 25 years.
MAUREEN CAVANAUGH: And who owns the site now?
DAN EATON: While the federal government at least as things stand right now. Fact that was one of the issues and Judge Burns is rolling. He said well, yeah, Chuck Hagel the secretary of defense has asked me not to rule yet because Congress may take action transferring it to a private party which was kind of interesting. But Judge Burns said no, they tried that it was deleted from the bill. We are not going to wait around we are going to the final judgment so that the Supreme Court can decide the issue that justice Alito in agreeing that the case should be heard at that time in 2012 was an issue of substantial importance basically whether the cross should be allowed to stand.
MAUREEN CAVANAUGH: Last week KPBS got reaction from the ACLU on Judge Burns' ruling. The ACLU has been against the cross at Mount Soledad. Here is ACLU regional director Jeff Wergeles.
NEW SPEAKER: It's a wonderful religious symbol that should be on a dentures for people who believe in Christianity and follow the sects of Christianity but it should be on federal property. Federal property should be something that recognizes all Americans be they Christian, Jew, Muslim, Hindu, Buddhist, atheist and we should not be elevating one particular group over any others when we are talking about the federal government.
MAUREEN CAVANAUGH: That was reaction from the ACLU and joining me now Bruce Bailey, your organization has been fighting for years to keep the cross at the war Memorial on top of Mount Soledad. What is your reaction to last week's court ruling?
BRUCE BAILEY: Let me tell you this, Maureen. It does not come totally unexpected and the reason I say that is that if you follow as Dan has very nicely laid out the court appearances and what's going on, it did not, expected. Certainly it was disappointing to us. And let me tell you why. I was at that 2 ½ hour hearing last week. And it was very clear to us a number of things. It was very clear to us that Judge Burns was reluctant to do what he did. And he started the hearing off by saying I am so ordering right now, so you all know. I'm granting the motion for summary judgment for the plaintiff's. Number two, he made it very clear as Dan said the ruling from the Ninth Circuit was the current law in this case. He used the words that he was boxed in at some point. Used the word that he was bound by the Ninth Circuit. So I think that he in a very thoughtful manner, a very organized manner, again, we don't agree with him. But, he did what he had to do in the way he explained it was, when I took the bar exam, I pass the bar and when I became a judge I took this robe and I also made an oath that I would follow the Constitution as best as I can. And he said a here and I have it right in my notes. It was the last thing you said. He said I don't like this. But I have to do it.
MAUREEN CAVANAUGH: Now Bruce, before this really or you working to try to find a compromise with the opposing side on this cross by making it smaller, or doing something in order to I don't know, in some way minimize or mitigate the impact in some way?
BRUCE BAILEY: Certainly. Certainly. We had a one at least a full day of settlement discussions with the ACLU. And I won't go into everything there, but there were a number of options that we talked about. But it seemed to come down to they said this cross has to be removed. And we've been thinking and fighting for it for 25 years. And we also decided at some point that this case should be taken to the Supreme Court.
MAUREEN CAVANAUGH: I'm going to get to that in a minute. But Dan, does the ruling by Judge Burns rule our further attempts for compromise solution?
DAN EATON: Of course that the parties can continue to talk. There's never anything that prevents that what this ruling does that is important is that it creates a final judgment which cannot be appealed to the Ninth Circuit and then assuming the ninth circuit affirms and I think they would have to unless they here with a full panel of the Ninth Circuit that there will be certainly listening to Bruce a petition for the Supreme Court, which is a fascinating issue here because assuming that four of the justices that are required to grant hearing, to agree to hear the case declined to hear it on the ground that there was no final judgment, assuming that was the reason they declined to hear it, this may very well be enough in the changed posture that will be presented assuming the ninth circuit terms Judge Burns's ruling for the Supreme Court to take the case.
MAUREEN CAVANAUGH: There's an aspect to this case that has weaved itself in and out over the years that that's the way that the the court said that given to lie in this case and the restrictive housing codes to Jews and people of color living there how much of a factor as I played into the controversy and into the legal rulings, the legal decisions about this cross?
DAN EATON: Really interesting actually Maureen because in his original 2000 a ruling Judge Burns in a footnote, footnote 26, recognize that argument about the unfortunate history of anti-Semitism that lie ahead in the 1950s. And he said well, no, the fact that those policies elapsed and still no one complained for number of years is itself an indication that it was not offensive. So he used the lack of a complaint notwithstanding this unfortunate chapter in La Jolla history to say well, no complaint, that means that's further evidence there's no establishment. But the Ninth Circuit took a very different tack on that history. Said look this cross was erected as a war memorial in 1954 at the height of the anti-Semitism of that was a part of the way of money quote from the opinion given that the cross was constructed in La Jolla with a distinctly religious purpose by La Jolla residents during the height of a discriminatory. We cannot ignore that such dissemination was part of the memorial's history and context and informed the reasonable observers views of what that symbol represents.
MAUREEN CAVANAUGH: Now Bruce, you were talking just a minute about the Supreme Court. What actually is the next step? You go back if you're going to appeal this to the Ninth Circuit?
BRUCE BAILEY: Well yes that's a very interesting question. And a very pertinent to what we are doing today. Actually I believe there are two ways you know, that we have 90 days in order to appeal from the date of I believe it was last Thursday. We have 90 days. I can categorically tell you and look you right in the eye and as I am right now and say we will appeal. That will be done. Now, we can appeal and take it back to the Ninth Circuit. I don't know how easy is to say this, but as Dan said, it would be rather incredible if the Ninth Circuit didn't affirm what they previously had given us. However, if they choose to rehear the case, then there's a possibility they may change their mind. I can't even speculate on that. The other option, option B, would be that I'm told by our appellate lawyers that there may be a way that we could go directly to the Supreme Court now for remedy that has been fashioned and the remedy is that we could take the crosstown. We could go directly to the Supreme Court. Which one of those that we choose to do I do not know. But, as I used to tell people when you want your eyes operated on, you go to an eye doctor. Although I'm a lawyer, I'm not an appellate lawyer. So I depend on those people to give me advice and certainly we'll follow it.
MAUREEN CAVANAUGH: And Dan, what would be the advantage of going right back to the Supreme Court or asking the Supreme Court to take the case about going to the Ninth Circuit again?
DAN EATON: Well as Bruce said, the Ninth Circuit is highly unlikely to reverse Judge Burton's ruling based on the strength of judgment and [inaudible] willing interestingly enough she's the Ninth Circuit judge based on San Diego's full panel of the Ninth Circuit would have to here to get a different result for benefit would be looking at lease occurred court as currently constituted you have some people who express some skepticism on this issue. There was a case on by the name of Salazar versus Bona where there's a cross New Mexico land where there was a similar issue and they said well maybe the time is right for us to take this to the Supreme Court rather than going to court where we are almost certainly going to lose right now.
MAUREEN CAVANAUGH: And my last question you mentioned, Dan, justice Alito said there could be significant issues raised in this together case and I'm wondering did he elaborate what are the significant issues?
DAN EATON: The significant issues that affected the courts establishment clause jurisprudence or law was what he said needed clarification meeting is that it's kind of confused right now and this may provide the court with an opportunity to clarify the establishment clause law that they have handed down over the years with respect to religious artifacts or crosses generally on public land.
MAUREEN CAVANAUGH: Okay.
BRUCE BAILEY: If I could say something one thing justice Alito said it was a question of substantial importance. I think that leaves the door open for the Memorial Association to hopefully get their writ granted and have the Supreme Court of the United States hear this case and we are obviously, we follow anything that they order. Or rule on. But we think that's the way we need to go.
MAUREEN CAVANAUGH: I want to thank both my guest Dan Eaton, San Diego to do with also But McMahon and Vitek, Bruce Bailey president of the Mount Soledad Memorial Association thank you both very much.
DAN EATON: Thank you Maureen, happy holidays.