Sunday, February 13, 2011

Trunk v. City of San Diego, 629 F.3d 1099 (9th Cir. 2011)

Several years ago one Paulson filed a Complaint in federal court alleging a "Latin Cross" located on a remote desert property offended him, and its size and location violated the Establishment Clause of the First Amendment (Paulson v. City of San Diego, 294 F.3d 1124 (9th Cir. 2002).  After years of litigation, and the 9th Circuit repeatedly ordering removal of the cross, the Supreme Court reversed on procedural grounds and ordered the district court to conduct an evidentiary hearing. (This case was extensively reviewed in an earlier blog); Salazar v. Buono,130 S.Ct. 1803 (2010).

Apparently impatient with the courts, the plaintiff in Trunk v.City of San Diego filed litigation specifically alleging a First Amendment violation despite Supreme Court language in Salazar inferring the Latin cross  did not violate the Establishment Clause.  The Ninth Circuit panel, ostensibly distinguishing the Salazar case, held  the cross violated the First Amendment.

The Ninth Circuit panel wrote a lengthy history of the litigation and cites a litany of its own cases in support of its decision.  The cross was erected in the desert by veterans of World War I in honor of those who died in the war. When the 9th Circuit ordered is removal, the City of San Diego transferred the property to a private owner. Characterized as a "sham" transaction by the 9th Circuit, the property was transferred to the federal government, and Congress confirmed the property as a memorial.  In Buono v. Kempthorne, 527 F.3d 758 (9th Cir. 2008) the 9th Circuit voided the Congressional finding.  Ultimately, as noted above, the Supreme Court reversed the Ninth Circuit but the Justices did not specifically address the First Amendment issue; Salazar v. Buono.

In Trunk, on appeal from a U.S. District Court ruling sspecifically on the Establishment Clause in favor of the government, the 9th Circuit panel  embarked upon a disquisition of religion and memorials, concluding the Latin cross signified a religious perspective prohibited under the First Amendment. In effect, the panel ordered removal of the cross by awarding summary judgment in favor of the plaintiff-the exact opposite of the District Court order. 

As noted by a dissenting judge in the Kempthorne case, aapparently the seventy years since the veterans erected the cross no one was "offended" until the time of the litigation.

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