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TRUNK v. CITY OF SAN DIEGO

Nos. 08-56415, 08-56436.

629 F.3d 1099 (2011)

Steve TRUNK, Plaintiff, and Jewish War Veterans of the United States of America, Inc.; Richard A. Smith; Mina Sagheb; Judith M. Copeland, Plaintiffs-Appellants, v. CITY OF SAN DIEGO; United States of America; Robert M. Gates, Secretary of Defense, Defendants-Appellees. Steve Trunk, Philip K. Paulson, Plaintiffs-Appellants, and Richard A. Smith; Mina Sagheb; Judith M. Copeland; Jewish War Veterans of the United States of America, Inc., Plaintiffs, v. City of San Diego; United States of America; Mount Soledad Memorial Association, Real parties in interest; Robert M. Gates, Secretary of Defense, in his official capacity, Defendants-Appellees.

United States Court of Appeals, Ninth Circuit.

Submitted December 30, 2010.

Filed January 4, 2011.

Attorney(s) appearing for the Case

John David Blair-Loy , ACLU Foundation of San Diego and Imperial Counties, San Diego, CA; Matthew T. Jones [argued], Adam Raviv and A. Stephen Hut, Jr. , Wilmer Hale LLP, Daniel Mach , American Civil Liberties Union, Washington, DC, James E. McElroy , Law Offices of James E. McElroy, Del Mar, CA, for the plaintiffs-appellants.

George Frederick Schaefer , City Attorney's Office, San Diego, CA, for defendant-appellee City of San Diego.

Kathryn E. Kovacs [argued], U.S. Department of Justice, Thomas C. Stahl , U.S. Attorney's Office, Washington, DC, for defendants-appellees United States of America and Robert M. Gates.

Peter D. Lepiscopo , Lepiscopo & Morrow, LLP, Sacramento, CA, for Amicus Curiae Pacific Justice Institute.

Before: HARRY PREGERSON, M. MARGARET McKEOWN, and RICHARD A. PAEZ, Circuit Judges.

OPINION

McKEOWN, Circuit Judge:

The forty-three foot cross ("Cross") and veterans' memorial ("Memorial") atop Mount Soledad in La Jolla, California, have generated controversy for more than twenty years. During this time, the citizens of San Diego (where La Jolla is located), the San Diego City Council, the United States Congress, and, on multiple occasions, the state and federal courts have considered its fate. Yet no resolution has emerged. Indeed, we...

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