Appeals Court Seeks More Information in Cross Case : Justice: Both supporters and opponents of the hilltop landmarks are encouraged by question about whether transfer of ownership is an end-run around the law.

The federal appeals court weighing the fate of the landmark crosses atop two San Diego-area public parks has taken the unusual step of asking for more legal briefs in the case, sending mixed signals that gave both opponents and proponents of the crosses reason Wednesday for optimism.

The U.S. 9th Circuit Court of Appeals, which held a hearing last month on a San Diego judge’s ruling that the crosses improperly mix church and state, issued an order Tuesday that asks whether transferring the crosses to private hands amounts to an end-run around the law.

The atheists and civil libertarians who brought the case said Wednesday that the request shows the court stands prepared to condemn any transfer of the crosses, atop Mt. Soledad in La Jolla and Mt. Helix near La Mesa. “I’m particularly pleased,” said Howard Kreisner, an atheist activist who challenged the legality of the Mt. Soledad cross.

But lawyers for the city and county of San Diego, defending the crosses, said any transfer resolves the case simply and elegantly--because there’s no law against a cross on private property.

“I view it as a very good sign,” said Kristine Wilkes, a lawyer for the city.

The city of San Diego has proposed a transfer of the Mt. Soledad cross and won overwhelming voter approval of that proposal in the June 2 election. But the cross remains city property pending the outcome of the appeal. Four months ago, the county of San Diego shed itself of the Mt. Helix cross, transferring it to a historical society.

Last December, U.S. District Judge Gordon Thompson Jr. ruled that the crosses, both of which are visible for miles, offend the state constitution’s rules on separating church and state. For the same reason, he ordered the city of La Mesa to remove depictions of the Mt. Helix cross from its insignia.

Thompson’s ruling touched off an emotional furor in San Diego and has provided fodder for months for radio talk shows and letters to the editor. Local politicians have nearly unanimously condemned the ruling. Community groups have staged numerous save-the-cross rallies at Mt. Helix and Mt. Soledad.

Both the city and county of San Diego vowed to appeal, claiming the crosses were religious symbols that time had turned into historical secular landmarks. No governmental body, however, has ever won a federal appeal of a ruling against such crosses.

La Mesa also appealed, but it has since removed the depiction of the Mt. Helix cross from its insignia.

A three-judge panel of the 9th Circuit court, the federal appeals court that serves California, held oral argument May 5 on the case and seemed poised to uphold Thompson’s ruling. At the hearing, Judge Robert Beezer even asked what it will take to “get (government) out of the business of religion.”

Beezer also suggested that the county’s Feb. 25 transfer of the Mt. Helix cross to the San Diego Historical Society did not take account of various technicalities in trust law. The cross sits in a 4-acre park that had been deeded to the county in trust. “It looks to me like you breached the trust,” Beezer said.

The order Tuesday from the 9th Circuit asks the county to explain whether the transfer violates any law and if not, why not. It also asks the city of San Diego to explain whether a transfer of the Mt. Soledad cross would violate the web of complex laws that regulate land owned by municipal corporations.

The order does not address any issue about the La Mesa appeal.

Deputy County Counsel Michael Poynor said Wednesday that county officials believe the Mt. Helix transfer was made in good faith and according to law.

Referring to the U.S. Supreme Court decision this week that struck down a Minnesota law making it a crime to burn a cross, Poynor said: “If you light the cross on fire, you can display it. But displaying it as a memorial . . . is still illegal under this (San Diego) ruling. We’re appealing.”

The 9th Circuit court also asked all sides to say whether the case would be best served by returning it to Thompson, so he or a jury could more fully consider the issues at a trial. Thompson’s Dec. 3 decision was based only on pretrial legal briefs.

The city and county must file legal papers by July 7. Opponents of the crosses have until July 21 to respond. The court has no deadline for issuing its ruling, meaning it could be a few weeks or many months before a decision is announced.