S.D. Loses Bid to Postpone Cross Removal : Law: City must take down Mt. Soledad landmark by March 3 in appeals court ruling that also involves county’s Mt. Helix cross.

A federal appellate court Thursday denied a petition by the city of San Diego to overturn a federal judge’s deadline to remove the Mt. Soledad Memorial Cross by March 3.

As a result of the court’s ruling, Mayor Maureen O’Connor said the city will go ahead with plans to transfer the parkland to a private, nonprofit group if future appeals also are unsuccessful.

At a hastily called press conference following the U.S. 9th Circuit Court of Appeals’ ruling, O’Connor and City Atty. John Witt vowed to press on with the fight despite the latest setback.

The city will ask U.S. Supreme Court Justice Sandra Day O’Connor to issue an emergency stay of the 9th Circuit’s ruling, Witt said. In addition, the city will use another legal maneuver and ask for an expanded hearing at the 9th Circuit, in which 11 justices, rather than three, would consider the city’s petition for a stay, Witt said. Thursday’s ruling denying the stay was issued by a three-judge panel.

Philip K. Paulson, an atheist who sued the city to remove the cross, said any new appeals would be a waste of money.

“The City Council is spending taxpayer money on a case they know is unconstitutional,” Paulson said. “They know it’s wrong. They know they can’t win, but they’re being intimidated by a Christian majority. . . . They better get good legal advice, because they have spent tens of thousands of dollars in bad legal advice so far.”

Witt and O’Connor said they did not know how much the city has spent in its fight to keep the cross on Mt. Soledad.

In December, U.S. District Court Judge Gordon Thompson ordered the removal of two crosses on public parks at Mt. Soledad and Mt. Helix near La Mesa, saying their presence violated the constitutional separation of church and state.

O’Connor and city officials insist that the cross on Mt. Soledad was dedicated as a memorial to U.S. war veterans and not as a symbol of Christianity.

Thompson gave the city and San Diego County, which owns the park where the Mt. Helix cross is located, until March 3 to remove the crosses. In addition, Thompson ordered La Mesa officials to remove the Mt. Helix cross from the city insignia.

Although San Diego lost the motion to stay Thompson’s deadline, the 9th Circuit will still hear the city’s broader appeal of Thompson’s order to remove the cross from Mt. Soledad.

The 9th Circuit’s written ruling denying the stay also informed the city that its appeal would be expedited. The court gave city officials until March 3 to file their written appeal. Paulson has until March 24 to file a written argument.

The 9th Circuit will hear oral arguments in the case May 4 in Pasadena.

On Thursday, the 9th Circuit also denied a petition from San Diego County officials to extend the March 3 deadline. County spokesman Robert Lerner said attorneys for the county would appeal the 9th Circuit’s ruling to the U.S. Supreme Court.

Meanwhile, O’Connor and Witt said the city is taking steps to transfer the parkland where the Mt. Soledad Memorial Cross is located to a private, nonprofit foundation. O’Connor said the La Jolla Town Council and Mt. Soledad Memorial Assn. have expressed an interest in acquiring the site.

The deed transfer would occur only if the city fails to obtain a stay before the March 3 deadline. The city would then put a measure on the June ballot asking voters to approve the transfer. The measure would require a two-thirds majority for passage.

Witt said the transfer could take place in March on the condition that it is approved by voters in the June primary election. If the city loses all legal appeals, and if the deed transfer is rejected by voters, city officials will have to tear down the cross.

However, Witt and O’Connor said they were optimistic that one way or another, the cross will remain atop Mt. Soledad.

“We believe we have the support of the people (for the transfer),” Witt said. “We also have sound, constitutional principles to argue (during the appeals).”

“In this case, the judges are wrong,” O’Connor said. “That (cross) is a historic symbol of the city of San Diego. . . . It’s a war memorial.”

But Paulson, the atheist, said the city would be breaking the law if officials transfer the parkland to a private group before the transfer is approved by voters. He said that he and his supporters might go to court to block such a transfer.

“They can’t do that because it’s against the law. They’re disobeying federal law and disobeying their own City Charter. . . . Instead of giving it away, they should open the park up for open bids to the public and give everyone a chance to bid on it. I would like to have that property for a billboard. Right now it serves as a Christian billboard,” Paulson said.

Lerner said county officials also are planning to deed the park where the Mt. Helix cross is located to a private, nonprofit group if the county’s court appeals fail. But, unlike San Diego, the county does not require voter approval for transfer of the site.

“We can do it without putting issue on ballot, because the cross, amphitheater and nature park at the site were given to the county as a gift. No public funds were ever used to buy it,” said Lerner.