Comrades, Colleagues and Patriots:
I am forwarding FYI this notice from the Alliance Defense Fund of the decision issued today by the Ninth Circuit Court of Appeals in the Mt. Soledad National War Memorial case which vacates as “moot” the order of the U.S. District Court in San Diego on May 3, to destroy the Cross at the Mt. Soledad veterans memorial. (Paulson v. City of San Diego, et al, Case No. 06-55769; District Cout No. CV-89-00820-GT, filed January 12, 2007.)
A three-judge panel of the Ninth Circuit `issued a unanimous opinion that, because the memorial site has been transferred to the federal government from the city , the 17-year-long litigation of the atheist Philip K. Paulson, and his ACLU-backed attorney James McElroy to destroy the Cross at Mt. Soledad is now “moot,” and, therefore, the District Court’s order must be vacated and no further relief can be granted in that case to destroy, remove, or otherwise affect the memorial.
Justice Ronald M. Gould, wrote the opinion joined by Justices Harry Preferson, and Richard R. Clifton. He wrote in part:
“The appeal by the City of San Diego (“the City”) of the district court’s May 3, 2006 order to enforce a December 3, 1991 injunction under California constitutional authority is moot.[Citation] On August 14, 2006, federal legislation transferred title of the Mount Soledad Veterans War Memorial to the United States. [Citation] The legislative taking immediately divested the City of any Interest in the war memorial [citation], and the United States is not subject to state constitutional authority. Accordingly, the May 3, 2006 order is no longer enforceable, and the appeal is dismissed.” [Citations omitted.”
The San Diegans for the Mt. Soledad National Memorial (the “San Diegans”) had also appealed from the District Court’s order denying them the right to participate in the litigation as intervenors defending the veterans memorial. The Court of Appeal dismissed the appeal as moot, too.
Charles LiMandri, Regional Director of the Thomas More Law Center and the attorney for the San Diegans, has led the legal fight to preserve the Mount Soledad National War Memorial “as it is, where it is.” The American Legion joined in the defense of the Mt. Soledad memorial by filing friend-of-the-court briefs by the National Organization and the Defense of Veterans Memorials Project of the Department of California and the Alliance Defense Fund.
The San Diegans position, as argued in legal briefs by LiMandri and the American Legion, and as presented at oral argument by U.S. Marine Corps veteran Robert Muise of Thomas More Law Center, was that the case brought to destroy the cross at Mt. Soledad was rendered moot when the site was transferred to the federal government, and, therefore, the District Court order was no longer enforceable and the atheist plaintiff Paulson could not obtain any further relief in his multi-year case.
The Ninth Circuit ruling is essentially what was sought by the San Diegans, the City, the Federal Government, and the Legion. The court rejected the argument of Paulson’s attorney that the Ninth Circuit should allow the order to destroy the cross to be enforced because prior decisions had found it unconstitutional and the case had gone on so long, leaving Paulson with no destruction or removal order after seventeen years of effort. He cited Paulson’s poor health. Paulson died in October, 2006, after oral argument and submission to the court for decision. His death was not cited as a ground for the mootness ruling.
While the decision is, indeed, a victory in the defense of the Mt. Soledad veterans memorial from judicial destruction at the request of atheist Paulson, it does provide further evidence of the need for passage of the American Legion-supported Veterans Memorials, Boy Scouts, Public Seals, And Other Public Expressions of Religion Act (“PERA”), which would remove the authority of judges to award attorney fees to the ACLU, or any one else, in Establishment of Religion Clause lawsuits.
That is: The Court, while vacating the order to destroy the cross at Mt.Soledad and holding no further relief could be obtained in that lawsuit, also allowed attorney McElroy to seek an order for attorney fees from the District Court for obtaining the order to destroy the cross in the first place.
This is the latest of several victories in the effort to save the Mt. Soledad veterans memorial “as it is, where it is” from legal attacks from the atheists and the ACLU, in which the primary credit is due to Attorney Charles LiMandri in particular and Thomas More Law Center in general, with whom we in The American Legion have joined in support.
The Fourth District Court of Appeal, in another legal battle led by Charles LiMandri and the Thomas More Law Center joined by the Legion as amicus curiae, granted the appeal filed the San Diegans and the City and overturned the decision of a single Superior Court judge who had nullified the election in which 76 per cent of the voters voted to transfer the Mt. Soledad National War Memorial to the federal government. That judge also granted every penny of McElroy’s request for some $268,000 in attorney fees to defeat the will of the people in the election.
The Court of Appeal not only overruled the lower court judge on every constitutional ground, but wiped out the $268,000 that taxpayers would have to pay to McElroy.
Another reason that PERA must be passed, is the fact that although the Preservation of Mt. Soledad Veterans Memorial Act — which was initiated and sponsored by Rep. Duncan Hunter and strongly supported by The American Legion — was passed overwhelmingly by the House and unanimously by the Senate, Paulson and McElroy filed a new federal lawsuit against the Act even before President Bush signed it, and the ACLU, only ten days after President Bush signed the Act on August 14, 2006, filed yet another lawsuit to U.A. Judge Moskowitz in SanDiego, and ACLU, and McElroy, will be seeking to enrich themselves by those two new cases at taxpayer expense,l too — unless House and Senate reform the law by passing PERA.
PERA, HR 2679, sponsored by Rep. John Hostettler (R-Ind.) passed the House by a vote of 244-173 in the 109th Congres, but PERA, S. 3696, sponsored by Sen. Sam Brownback, stalled in the Senate when Sen. Arlen Specter, Chairman of the Judiciary Committee, failed to call PERA up for a vote.
American Legion National Commander has pledged that the Legion will continue to fight for passage of PERA in the 110th Congress.
FOR GOD AND COUNTRY FOREVER; SURRENDER TO THE ACLU–NEVER!
REES LLOYD, Attorney Commander, District 21 Director, Defense of Veterans Memorials
Project of The American Legion Department of California 951-849-8676