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Legal Update: Mount Soledad And New Laws


A federal appeals court rules the cross on Mt. Soledad is unconstitutional. But the legal battle is not over. We'll discuss this ruling and talk about some of new laws that take affect in 2011.

A federal appeals court rules the cross on Mt. Soledad is unconstitutional. But the legal battle is not over. We'll discuss this ruling and talk about some of new laws that take affect in 2011.


These Days legal analyst and San Diego attorney Dan Eaton

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This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

MAUREEN CAVANAUGH: I'm Maureen Cavanaugh, and You're listening to These Days on KPBS a very old San Diego lawsuit tops offer discussion of new laws of 2011. But the challenge to the mount Soledad memorial in La Jolla is one of those issues that just goes on and on with no resolution in sight. Then on to those new laws which cover everything from organ donations to HOV lanes, we'll talk about some of the most interesting new rules and regulations here in California. I'd like to welcome my guest, These Days legal analyst, Dan Eaton. Good morning, Dan.

EATON: Good morning, Maureen.

MAUREEN CAVANAUGH: Now, we're inviting our listeners to join this conversation. If you have a question or a comment about the recent mount Soledad ruling or if you'd just like to see the whole issue go away, you can give us a call with are why questions and your comments. The number is 1-888-895-5727. It may come as actually a surprise to some of our listeners that the battle over this memorial on mount Soledad including the 43-foot tall cross has been going on now for more than two decades, in fact, Dan, you talked about the legal battle in the very first segment of These Days back in 2006. Now, as the lawsuit moves through the federal courts, the most recent ruling was in 2008. Back then, San Diego federal judge Larry burns said the mount Soledad site did not offend the clause in the United States constitution that prohibits government from establishing a religion. That was the most recent ruling up to last week's ruling. But what was his reasoning.

EATON: Judge Larry burns ruled that the site in its current form did not offend the establishment clause for a couple reasons. First he found that Congress was not religiously motivated in enacting a law that transferred the site from the City of San Diego to the federal government. He said, in fact, that the law on its face was said that it was designed to preserve a quote, historically significant war memorial, close quote. Indeed, said judge burns in his opinion, the law, quote, is not directed to the cross per se, nor does it require the continued presence of the cross as part of the memorial. It simply requires that the mount Soledad site be maintained as a veterans' memorial. He then went on to hold, Maureen, that the site as it was constituted did not or would not to a recent observer would not have the effect of sending a government endorse of religion, in particular, Christianity. Judge burns talked about the fact that we are a Navy town and talked about the rather extensive and numerous veterans' displays that are present on the site.

MAUREEN CAVANAUGH: But how did judge Burns in his ruling in 2008 deal with the most prominent feature of the memorial site being an indisputably religious symbol that cross?

EATON: Well, Maureen, he didn't dispute that the Latin cross is the, quote, preeminent symbol of Christianity, close quote. But he said that it has other meanings. What other meanings? He said it has meanings of military service, sacrifice and death. And those meanings had to be considered in evaluating the effect on the reasonable objective observer. He also pointed out that the cross is the tallest and highest element in the memorial, and it is uncontested, the most visible from the distance, it is not the largest. Nor are the other elements of the memorial insubstantial, close quote. To that, he was referring to the various war memorial items that were added after litigation ensued.

MAUREEN CAVANAUGH: Those challenges the cross appeal to the ninth circuit court of appeals, and at the time of judge burns' ruling the head of a citizens' group defending the site, said that he thought that his group had about a 75 percent chance of winning in the ninth circuit, now, that really hasn't happened, has it.

EATON: Well, maybe he had a 75 percent chance of winning, the 25 percent ended up coming out, and as it happens, because the 9th Circuit three-judge panel actually resurveyed Judge Burns's ruling. This is the interesting thing, though, about the panel. The panel -- the author of the opinion, which is rather lengthy, was Judge Margaret McCuin, who is actually based here in San Diego, in downtown San Diego, he was appointed by president Clinton, then judge Richard Paez, who was also a Clinton appointee, and then Judge Harry Kreigerson was the third member of the panel. And he was a Jimmy Carter appointee. Now, I occasionally point out on this show, that judges rule based on their understanding of the law, not based on any political preferences that they may have. Their vote was a vote of 3 to 0. Now, as a threshold matter, interestingly enough, the agreed with Judge Burns that Congress did not have a religious motive, the evidence shoed that Congress did not have a religious motive in transferring the site from the City of San Diego to the federal government. But that was hardly the end of the matter.

MAUREEN CAVANAUGH: Right. Because the Court went on to hold that the mount Soledad sites currently conferred does offend the establishment clause, is unconstitutional. Why?

EATON: Maureen, let's look at the core question, here. The core question here is whether the mound Soledad is essentially a cross that incidentally includes I war memorial, or is a war memorial that essentially includes a cross. The ninth circuit panel concluded that the site was predominantly a cross, that only, incidentally, and belatedly include aid war memorial, and that at least the current configuration of that site, Maureen, [CHECK AUDIO] government endorse of Christianity.

MAUREEN CAVANAUGH: Now, the panel rejected judge burns' concluded [CHECK AUDIO] of military service, of sacrifice and of death. What did the panel say about that?

EATON: Judge McCuin wrote that, well, the cross if it's used to honor Christian soldiers is not used as a universal symbol of in fact, she pointed out on grave stones are etched other religious symbols, everything from a Wiccan symbol to a cross, to the star of David for Jewish soldiers. And then finally she said is this first it doesn't honor all American soldiers traditionally. And could is, she said, let's look at the size of the cross itself, it's 43 feet, it's 24 tons, and it quote, physically dominates the memorial, towering over the secular symbols placed beneath it, and is so large and placed in such a prominent location that it can be seen from miles away. A 43 foot cross that was erected, in part, to celebrate Christianity, and serves as the overwhelming center piece to a memorial, is categorically different from the small crosses used to mark the graves of individual Christian soldiers, close quote.

MAUREEN CAVANAUGH: I want our listeners to know that I'm speaking with These Days legal analyst, Dan Eaton, and we are talking about the most recent ruling, finding that the cross atop mount Soledad unconstitutional in its present form. Now, a very interesting part of that ruling had to do with the history of the cross in that location. It led the Court to conclude that a reasonable observer, aware of that history, will believe that the mount Soledad site sent a message of government endorse of religion.

EATON: Maureen, the cross was rededicated, I was originally put up at the beginning of the last century, but it was rededicated on Easter Sunday in 1964. And it had been the site of annual Easter services, until recently, it had been the site of also, the Court pointed out, only scattered veterans' memorial services in the past, until recently. And what may have been an intentional pun in the opinion, the Court wrote, quote, resurrection of this cross as a war memorial does not transform it into a secular monument, close quote. Where over for nearly three decades the court wrote, after the site dedication as war memorial the cross stood alone without any, and this phrase occurs throughout her opinion, again, quote, any physical indication of any secular purpose, close quote. In other words, the cross was alone without any other veterans indications.

MAUREEN CAVANAUGH: And in some of the most remarkable language in ruling, really, as you and I were speaking about before this, hasn't been commented on it a large extent. The opinion said a reasonable observer would also be aware of what the Court called La Jolla a history of anti-Semitism, which also reinforces the memorial's essentially Christian message. What was the Court talking about?

EATON: A fascinating part of that -- of the opinion, actually, Maureen, the Court wrote that until the 1950s, Jews effectively were shut out of the La Jolla housing market either through a series of informal and formal covenants not to sell real estate to Jewish people. Finally, La Jolla was forced to abandon these practices in order to get UCSD located here. But the fact is that as the Court put it, quote, the aura of anti-Semitism continued at least through the 1960s. An informed observer is far more likely to see the memorial as sending a message of exclusion against this back drop than if it had been reacted in a city without this pointed history, close court. The Court then add in a footnote, Maureen, quote, given that the cross was constructed in La Jolla with a distinctly religious purpose by La Jolla residents during the height of this discriminatory period, [CHECK AUDIO] and informs the reasonable observer's views, close quote, of what message was being sent by its continued presence.

MAUREEN CAVANAUGH: So therefore, did the Court order that the cross come down?

EATON: Not exactly. What the Court said was the Court ruled only that, quote, the memorial as presently configured, chose quote, could stand because it conveyed a government endorse of religion. What the Court also said, however, that their ruling does not mean that the, quote, memorial could not be modified to pass constitutional muster, nor does it mean that no cross could be part of there veterans' memorial. We take no position on those issues, close quote.

MAUREEN CAVANAUGH: So therefore does that mean that the cross can stay.

EATON: Well, probably not this cross, Maureen. Because you have to look at it. What the Court said was a cross could be part of it. But it's hard to see given the focus on the size of the cross and its prominence, how this particular cross could stay part of the memorial site and still pass constitutional muster, at least according to this particular panel. Also given the history, the history wouldn't be wiped away by simply adding a variety of things to this particular site with this particular cross. I mean, I suppose if you could argue if you reacted a statue of a service man that was also 43 feet tall and 24 tons, perhaps. But the fact is, it's hard to see how, even if the site could include a cross that this particular panel, anyway, would view this cross as passing constitutional muster, given its prominent.

MAUREEN CAVANAUGH: So where does this legal battle go now.

EATON: Well, the people who are defending the cross will probably ask that a larger panel of the ninth circuit court of appeals, called an en banc panel, to review the three judges' ruling. And from there, if the panel either reverses -- if it reverses judge burns's ruling as the three judge panel did or if it doesn't go far enough, then the next stop would be the Supreme Court. And frankly, either way, even if the larger panel agrees with this three judge panel, you can expect that there's going to be an appeal from one side or the other to the United States Supreme Court.

MAUREEN CAVANAUGH: So, you will be here talking about this again, no doubt. ?

EATON: Yeah, I mean -- this probably -- I don't see this ending for at least another, 2, 3, 4 years. And that's because even if nothing happens to this three judge panel's ruling, all they did was send it back for what the court called further proceeding consistent with this opinion. In other words, how and whether the current memorial site could be reconfigured to pass constitutional muster.

MAUREEN CAVANAUGH: Let's shift the discussion from a two-decade plus legal controversy to California laws that are really pretty brand-new. Now, even though it went into effect a few months ago, Chelsea's law was probable the most publicized new law in California. It was, of course, named after Poway high school student Chelsea king, who was murdered early last year by a registered sex offend every. Dan, how does this law change sex offender laws in California?

EATON: Well, two things, one trike you're out is what it says. If you engage in certain aggravated sex crimes as a sex offender, that's it. Of that's lifetime imprisonment. And potentially more dramatic effect is that it calls for lifetime parole for those who target children under the age of 14. Now, this law came about -- it was drafted by San Diego area assemblyman Nathan Fletcher.

MAUREEN CAVANAUGH: Now, don't new laws usually take effect several months down the road? This one went into effect almost immediately, right?

EATON: Right, usually, they're signed in the fall, then they take place -- they ever effective in January. This one took place on September 9th, the very day then governor Schwarzenegger signed the measure. And that's because the legislature passed it as an emergency measure, and by the way, passed it unanimously, which is unheard of in Sacramento these days.

MAUREEN CAVANAUGH: We have to take a short break. When we return, I will continue with my guest, Dan Eaton, talking about the new laws of 2011 in the State of California. You're listening to These Days on KPBS.

I'm Maureen Cavanaugh and you're listening to These Days on KPBS. And I'm speaking with These Days legal analyst, Dan Eaton, and we are talking about some of the most interesting new laws that have recently or are recently going into effect in the new year, 2011. Another new law, and this one did take effect general first. Made employees of private employers eligible for paid leave to donate organs, so what is unusual about this law?

EATON: Maureen, this is obviously the area in which I practice, defending advising employers, and this is very significant. Employ ears who have more than 30 employees most grant up to 30 days of paid leave for an employee to make an organ donation, and [CHECK AUDIO] understand, that's job protected paid leave, meaning that the employee is entitled to the same or substantially equivalent paid job upon his or her return from this paid reef.

MAUREEN CAVANAUGH: There are many required in paid leaves, especially for private employers. I mean, there are some family leaves but they're not paid, right?

EATON: Right, there is no other job protected paid leave. The paid family leave that some people have in mind is administered through the disability law here in California. The fact is that this is the only job protected paid leave in California. The family leave law to which you referred gives people up to 12 weeks of unpaid leave to care for themselves or another. And that is job protected. But what is significant about that, of course, in addition, is that the family law requires that the illness be for yourself or for a close family member. The organ donation can be to anyone or blood marrow donation can be to anyone at all. That's what the law says. So this actually breaks some significant new ground. It'll be interesting to see whether the legislature expands this right to paid leave to other areas outside of the organ donation and bone marrow context.

MAUREEN CAVANAUGH: And I would imagine that it was put into place to encourage people to donate organs.

EATON: Well, that's right, Maureen, and of course there was another law that we won't have time to talk about dealing with making it easier for people to register through the DMV to give organs. So absolutely it was designed to expand the pool of available organ donors.

MAUREEN CAVANAUGH: Now, California also enacted a new law that addresses a specific aspect of bullying on the Internet. What measure did the state legislature in fact to address this problem?

EATON: Maureen, understand that existing law already makes it illegal to but bully on the Internet. That is very clear. California already has a law. The issue that the legislature specifically addressed was bullying in the name of another person, or being an imposter of another person. An actual person to be sure. Not a fictitious person. So if you do it fictitiously, it's still not a crime. But it adds a new section to the state penal code and makes it a misdemeanor for anyone, quote, knowingly and without consent of the other person credibly to impersonate another actual person on an Internet website or other electronic vehicle, quiet, for purposes of harming, intimidating, threatening or defrauding another person, close quote. A person who commits such an offense, Maureen, is also subject it a civil lawsuit, that anyone who has been harm bide this activity can bring for damages and also attorneys' fees.

MAUREEN CAVANAUGH: Now, why did this law get enacted? I mean, was this a big problem.

EATON: Well, there were apparently incidents of this happening. For example, the author of the law pointed to an incident involving Saint Louis Cardinals' manager, Tony La Russa, who according to the author, there was somebody who set up a fictitious account that had him saying some awful things about the death of a couple of his players. And then there was a 40-year-old woman who created fictitious messages about a 17-year-old daughter of her ex husband's girlfriend by posting the daughter's poet, work mace, e-mail and cellphone number on a Craigslist forum where people go to pursue sexual encounters. So this wasn't a fictitious message. It was just sort of putting it up as if the girl herself was soliciting this kind of thing. The 17-year-old girl got a lot of messages as a result of that post, and it upset her very, very greatly. So this is the kind of thing that this law was designed to --

MAUREEN CAVANAUGH: So this isn't just an evil prank, anymore, this is actually against the law.

EATON: Well, and that's the issue, Maureen, for the purposes of first amendment. That is right, if it is intended to harm, then that is a -- that is a problem, and that is it a crime. But where is the line between an intent to harm someone on the one hand and an innocent prank on the other? Obviously, the examples I've just given were hardly inspect.

MAUREEN CAVANAUGH: Not innocent, no.

EATON: Not at all. But when you say evil prank, that's an interesting concept, and the Courts may ultimately have to decide whether this law is sufficiently specific to pass constitutional muster under the first amendment.

MAUREEN CAVANAUGH: Another law that's gone into effect addresses a form of more than day slavery, human trafficking. Perhaps a lot of Californians don't realize it's a problem. What can you tell us about this new human trafficking law.

EATON: Maureen, I didn't even realize this was a problem until I did research for this particular segment. The law would allow the is she of property, it would give another arrow in the law enforcement's quiver, allow is she of property such as home or vehicle [CHECK AUDIO] either for sex or labor or any other human trafficking. And it really is a problem. Because a university of California study identified no fewer than 57 forced labor operations in the state that were operating between 1998 and 2003. Most of which were in San Francisco, LA, son Jose, and San Diego.


EATON: Really stunning, actually.

MAUREEN CAVANAUGH: So I just want to stop you right there for just a second. You call this another -- another quiver in the --

EATON: Another arrow in the quiver.

MAUREEN CAVANAUGH: Arrow in the quiver of the prosecutor. I'm wondering issue, they have laws hike this for drug dealers, right?

EATON: That's right. That's exactly right, but necessarily as to human trafficking, which is also a very heinous offense. So the thought was let's move this up there to give law enforcement as many tools as they possibly can to combat this horrible, horrible crime.

MAUREEN CAVANAUGH: What can you tell us about the victims of this type of activity.

EATON: Well, Maureen, they're overwhelmingly women, 90 percent of them are women, and 99 percent of those involved in sex trafficking are women. Also Hispanics are the largest minority group or the largest ethnic group that's targeted by these. 58 percent of those who are involved in the labor trafficking are Hispanic.

MAUREEN CAVANAUGH: So to be clear, it mean fist someone is convicted of human trafficking issue not only do they go to prison but conceivably, their family loses the home and the car and everything.

EATON: Any property, Maureen, that was used to facilitate this human trafficking is subject to is she under this new law. So presumably, it will add further deterrents to this kind of activity.

MAUREEN CAVANAUGH: The next new law that we're talking about was enacted in 2009, but it doesn't -- and it doesn't go into effect until February 1st of this year. It regulates the sale of handgun ammunition. What does this new law do?

EATON: Right, and this new law puts further regulations on the sellers' handgun ammunition. It requires the sellers to get certain information from the buyer, including the driver's license, the right thumbprint, and their residential address and telephone number. It -- the law also makes it a misdemeanor to sell handgun ammunition in a way other than a face-to-face transaction, such as by mail or over the Internet. Without the buyer providing bona fide evidence of his or her identity to the seller, in the form of a development issued identity card like a driver's license and so forth. Sales to law enforcement personnel logically are exempted from this provision. So it does add another layer for sellers of handgun ammunition to -- to go through.

MAUREEN CAVANAUGH: Right. Logically, though, how does this -- how does this keep the public safer?

EATON: Well, presumably, it will make it easier to identify, for example, someone who has bought hundred gun ammunition, and will be further evidence to secure a conviction. But again, this is another issue of regulating that the California state legislature in its wisdom thought to regulate the handgun ammunition and the over all arms that are on the street.

MAUREEN CAVANAUGH: And because of recent events we're all thinking about ammunition a little bit more than we have, and the regulations that involve guns and ammunition.

EATON: Right, and of course, you always have to be careful not physically to draw the link between those two things but it would be silly not to put out that this is not in the front of mind these days in the tragedy in Arizona.

MAUREEN CAVANAUGH: Absolutely. A very different kind of a law. People who drive cars that run on electricity are about to join the HOV lane. What new rights did the legislature give these drivers?

EATON: Actually, as we were doing these -- the sort of outline for this statement, you had a very interesting take on this new law, which was out with the old, in with the new. Hybrid care are so last decade, aren't they? What happens is that the legislature extended the right of hybrid vehicles like the prius, to use the HOV lane for solo drivers of but only until July 1st. After that, it's back.


EATON: It's back to the slow lane, guys. Old news, hybrids. But what they did and -- and drivers, they said, no now, drivers are fully electric cars are being assured into the HOV lanes, and what the law allows is that they allow these electric vehicles starting in 2012, actually, through 2015 To Drive alone in the HOV lanes. And then also those who drive cars classified -- these are cars, understand, that are classified as advanced technology, partial 0 emission vehicles.

MAUREEN CAVANAUGH: I don't even know what those are.

EATON: I don't even know what that means. But those people starting in July of 2011 can use the HOV lane driving alone. Also, of course, those who use compressed natural gas or fully electric cars like the Nissan Leaf can drive those in the HOV lane solo until 2015. But it's interesting, if they really are so energy conscious, why are they driving alone in the first place? There's carpooling too. Wouldn't they -- that was obviously not a slant, but they could save all that more --

MAUREEN CAVANAUGH: Yeah, if you were to carpool and drive an electric car.

EATON: Wow, think of all the good you're doing for mother earth, right?

MAUREEN CAVANAUGH: Our last new law is specifically here in the City of San Diego. The San Diego City Council unanimously passed a new law requiring pedicab operators to have driver's licenses. Why was this ordinance passed?

EATON: Maureen, this actually required a change in state law to allow the city even to have this requirement of a driver's license. And the reason, of course, is that listeners will remember that earlier, the City Council enacted various regulations on penny cabs capping the number at 250, and so on. And requiring them to have proof of insurance of the new ordinance also requires that they have driver's licenses. These are -- these regulations are designed to combat some pedicab safety issues that have been identified in July of 2009. An Illinois tourist died when he fell out of a pedicab. Of course, pedicab operators insist that they are very safe drivers.

MAUREEN CAVANAUGH: And is that just to make sure that the petty cab operators know the rules of the road?

EATON: Well, that's an important part of it, actually. [CHECK AUDIO] even the written test, you have to know certain basic rules of the road, which do apply, by the way, to petty cab operators. It's all designed to keep people safe, as you know, I live downtown. So I see petty cabs and so on. And generally, they're very conscientious, but these regulations are designed to keep all of us safe.

MAUREEN CAVANAUGH: And is there any push back from the petty cab operators? Do they not like this new requirement.

EATON: Well, the problem, Maureen is that it takes time to get a driver's license. And apparently, according to a study published on line on December 7th in the Union Tribune last year, it said, quote, many operators are foreigners in the United States on temporary visas that they say could expire before they learn how to drive a car and take the test; close quote. So it could shut out a group of people that currently are engaged as drivers in the petty cab industry.

MAUREEN CAVANAUGH: Any indication that the petty cab fees are gonna go up accordingly?

EATON: Well, if they do go up, they have to be posted because that was one of the regulations that the City Council previously enacted. So buyer beware, yes, but it will be posted so you'll know what you're quieting into.

MAUREEN CAVANAUGH: Well, I want hope for bringing us through some of the very interesting new laws and going through that whole history about mound Soledad. I think that was very informative, thank you Dan.

EATON: Everything from a cross to a petty cab.

MAUREEN CAVANAUGH: Indeed. I've been speaking with These Days legal analyst, Dan Eaton. Thank you so much.

EATON: Thank you, Maureen.

MAUREEN CAVANAUGH: If you'd like to comment, please go on-line, Days. Now, coming up, an encore broad cast of our interview with San Diego artist Kim MacConnel. That's as These Days continues here on KPBS.


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