On Friday, January 12, a panel of the US Court of Appeals for the Ninth Circuit reversed the district court's order requiring the City of San Diego to remove the Mt. Soledad Cross and vacated that order because the City no longer owns the land on which the Cross stands, ruling that the case brought against the City by the deceased, self-proclaimed atheist Philip Paulson was now moot.
Robert Muise, the Law Center trial attorney who argued the case, explained the basis for the ruling, "When a civil case becomes moot during the course of an appeal, as in this case, the established practice in the federal system is to reverse or vacate the judgment below and remand with a direction to dismiss. Because this controversy is now moot, both the trial and appellate courts lack subject matter jurisdiction and the concomitant power to declare the law by deciding the merits of the case."
Richard Thompson, the President and Chief Counsel for the Law Center, commented, "We welcome this ruling. But the battle to save the Mt. Soledad veterans memorial is not over. The ACLU, displaying its zealous anti-Christian animosity, filed a new lawsuit to remove the Mt. Soledad Cross — this time against the federal government. We must now turn our resources toward defeating them again. We are committed to that task."
Last summer, the Thomas More Law Center, a national public interest law firm based in Ann Arbor, Michigan, filed a motion in the appeals court urging the court to dismiss the order enforcing the injunction because recent federal legislation (which the Thomas More Law Center played an instrumental role in developing) transferring the Mt. Soledad veteran's memorial property to the federal government mooted the case against the City. The Ninth Circuit agreed.
The Law Center's motion to "Dismiss and Vacate" was based on a Congressional Act, signed into law by President Bush on August 14, 2006, that immediately transferred all title and interest to the Cross and memorial property to the federal government for its use as a national war memorial honoring the veterans of the US armed services. Thus, as of August 14, 2006, the City of San Diego no longer owned the property upon which the memorial is located.
In its motion, the Law Center argued that this property transfer to the federal government moots the district court's judgment against the City of San Diego because the City no longer owns the memorial property and the injunction cannot be enforced against it. The Law Center also argued that the injunction cannot be enforced against the federal government because the federal government is not a party to the action and, more fundamentally, it is not subject to the California Constitution, which served as the legal grounds for the district court's decision.
The Law Center filed the motion on behalf of San Diegans for the Mt. Soledad National War Memorial, the organization that spearheaded the successful referendary petition drive ("Proposition A") to transfer the memorial property to the federal government in order to preserve the veterans memorial for future generations. Proposition A was approved by an overwhelming 76% of the vote.
The Ninth Circuit agreed with the Law Center's legal argument, reversing and vacating the district court's order.
Over the past two years, the Law Center has provided thousands of attorney hours without charge to preserve the memorial cross from destruction. Charles LiMandri, the West Coast Director of the Thomas More Law Center who led the effort, commented, "It was time for the Ninth Circuit to put this 17-year court battle to rest. The people of San Diego overwhelmingly support the preservation of the Mt. Soledad Veterans Memorial, the President of the United States strongly supports preserving the veterans memorial, and Congress, in a remarkable, bi-partisan effort, has passed legislation to ensure the preservation of this national treasure. The Ninth Circuit had no choice but to reverse the district court's order to remove this historical landmark."