Opinion
No: 90-134 GT, 89-820 GT
September 18, 1997
ORDER
Before the Court are Motions to Enforce Injunction which forbids "the permanent presence of each cross on public property... where it currently appears." Murphy v. Bilbray, 782 F. Supp. 1420, 1438 (S.D.Cal. 1991)), aff'd, 990 F.2d 1518 (9th Cir. 1993), cert. denied, 114 S.Ct. 2707 (1994). The Court has fully considered this matter, including a review of the numerous briefs filed, the authorities cited therein, and the arguments and exhibits presented.
A. Mt. Helix Cross
In 1990, plaintiff John Murphy filed suit against the County of San Diego challenging the presence of a thirty-six foot high Latin cross at the center of a public park atop Mt. Helix. Plaintiff alleged that the cross violated article I, section 4, of the California Constitution and the Establishment Clause of the United States Constitution.
On December 3, 1991, this Court held that the Mt. Helix cross violated the No Preference Clause of the California Constitution and issued a "permanent injunction forbidding the permanent presence of each cross on the public property . . . where it currently appears." Murphy v. Bilbray, 782 at 1438. Additionally, the Court stated that "[w]ere the parcels of land atop which Mt. Helix and Mt. Soledad crosses presently stand privately owned, then these cases would be entirely different." Id.
While these cases were on appeal before the Ninth Circuit, San Diego County purportedly transferred the Mt. Helix cross and a fifteen foot circle of land underneath the cross to the San Diego Historical Society ("Historical Society"). Plaintiff argues that this transfer of the cross and the land beneath it "was a sham" and urges the Court to enforce its injunction by ordering the County to either "(a) physically remove the cross or (b) sell the entire park to the highest bidder, without restriction regarding the preservation of any religious symbol upon the land." As Judge Beezer's concurring opinion points out, the "[d]estruction of the crosses, however, raises as many issues as it resolves." Ellis v. City of La Mesa, 990 F.2d 1518, 1529 (9th Cir. 1993) (specially concurring, Beezer, J.), cert, denied, 114 S.Ct. 2707 (1994). Likewise, the sale of either part or all of the park raises the same troublesome issues.
Judge Beezer's concurring opinion raised several questions that need to be addressed before the injunction can be enforced. The foremost question is whether "the County validly took title of the land in the first place." Id. Other issues include "whether a trust exists, who are the interested parties under that trust, the existence and effect of the reversionary clause, and what effect the County's transfer has on the trust." Id. at 1530. This Court ordered the parties, including the recently joined Historical Society, to fully brief these various issues on California trust and property law, including the remedy of appointing a private trustee to prevent the trust from failing.
1. Whether the 1929 Transfer Created a Charitable Trust or Fee Simple
The initial question is what type of conveyance was created by the 1929 Deed of Conveyance ("Deed") from Cyrus Yawkey to the County. Plaintiff argues that the "indenture creates a charitable trust." (Plaintiff's Mem. Supp. Motion Enf. Inj. at 21.) The County asserts that it "validly took title to the real property in fee simple." (County's Supp. Brief at 1.) The Historical Society "concludes that it is a close question whether a charitable trust or a fee simple interest" was created by the 1929 deed. (Historical Society's Resp. At 6.)
a. Creation of a Charitable Trust
A charitable trust is created in the same manner as a private trust. In re Estate of Heil, 210 Cal.App.3d 1503, 1510 (1989). To create a trust there must be trust intent, trust property, trust purpose and a beneficiary. Walton v. City of Red Bluff, 2 Cal.App.4th 117, 124 (1991). To create a charitable trust, the trust purpose must be charitable in nature and the beneficiary is "either the whole or an unascertainable part of the community." In re Estate of Breeden, 208 Cal.App.3d 981, 985 (1989). Charitable purposes include; "(a) a relief of poverty; (b) the advancement of education; (c) the advancement of religion; (d) the promotion of health; (e) governmental or municipal purposes; (f) other purposes the accomplishment of which is beneficial to the community." Ed. citing Restatement (Second) of Trusts, § 368.
Charitable trusts are favored and will be upheld if the indenture "can possibly be construed as valid by applying liberal rules of construction designed to accomplish the intent of the trustor or testator." Breeden, 208 Cal.App.3d at 985. Accordingly, "courts look with favor upon attempted charitable bequests, endeavoring to effectuate them whenever possible so as to avoid intestacy." Breeden, 208 Cal.App.3d at 987. Hence, where doubtful, the trust will "be construed as charitable," Id.
It is clear that Cyrus Yawkey intended to create a charitable trust with the 1929 indenture. First, the Deed designates Cyrus Yawkey as the Trustor and the County as the "Trustee for carrying into effect the trusts" described in the Deed. (Deed at 1.) Second, the Deed specifically provides for a charitable purpose in that the real property was improved "to render it suitable for eleemosynary, religious, educational and public uses and purposes." (Id.) Additionally, the Deed states that the property is dedicated
to the use, enjoyment and inspiration of All People, and desires the same inure forever to the use of the Public in general and of the Citizens and residents of the County of San Diego and the State of California in particular, to be by them used . . . for such benevolent, religious, educational and charitable purposes as will contribute to promote knowledge and culture, to relieve the distressed in body mind and/or spirit, to cultivate a love for the beautiful in art and nature, to foster an interest and love in music and the drama, and to promote all things which tend to elevate and refine mankind. (Deed at 2.)
Third, under the terms of the Deed, annual Easter sunrise services are to be held and the cross illuminated on certain specified dates, including Christmas Eve, the night before Easter, and the night before Thanksgiving. Finally, the Deed sets aside a sum of
$30,000, held in bonds, for the maintenance and upkeep of the real property and the cross. Accordingly, the Deed clearly evinces the requisite charitable intent, purpose and beneficiary.
However, the Deed also contains reversionary language which complicates the analysis, Generally, the presence of reversionary language indicates the creation of a fee grant and not a charitable trust.
b. Reversionary Language in the Indenture
The County, relying on Walton, 2 Cal. App, 4th 117, asserts that the presence of reversionary language in the indenture is inconsistent with the intent to create a charitable trust. In Walton, Mrs. Elizabeth Kraft and her son granted, by inter vivos transfer in the early 1900's, certain properties to the City of Red Bluff for the specific purpose of being used for a library. Walton, 2 Cal, App. 4th at 120. In 1986 the books were removed from the library. On appeal, Walton, an heir, argued that the land was transferred by a trust instrument and that the land reverted to him because the trust terms were violated. Id. On cross appeal, the City of Red Bluff argued that the land was transferred in fee simple on a condition subsequent. Id.
The California Court of Appeals held that the language of the indenture was the language of a fee grant not a trust. Walton, 2 Cal.App.4th at 125. Specifically, the indenture stated "the grant and conveyance herein made shall cease and terminate, and title to the said property . . . shall at once revert to the party of the first part or to her heirs or assigns." Id. Citing cases from other jurisdictions, the California Court of Appeals decided that based on the facts before it, the presence of the reversionary language in the grant was inconsistent with the intent to create a charitable trust. Id.Furthermore, the court held that the use of the word "trust" in the indenture was "precatory, intended to convey to the recipient the solemnity of the grant." Id.
The 1929 indenture undeniably contains reversionary language. The Deed states that should the trustee convey or attempt to convey the property or merge or attempt to merge the funds or use the property or funds other than as specified in the Deed,
then and in that event, the said premises, . . . and said fund..., shall forthwith revert to, and the title thereof and thereto vest in, and the whole thereof become the property of the trustor herein, his heirs and assigns, and the heirs and assigns of said MARY YAWKEY WHITE. (Deed at 8.)
Furthermore, the Deed provides that "all instructions and requirements in this Indenture contained shall be construed as mandatory." (Id.)
c. The Indenture Created a Charitable Trust
This Court is left with determining whether the 1929 indenture created a charitable trust or some type of fee simple. As the Historical Society suggests, this is a close question because of the presence of conflicting language within the indenture. On the one hand, it is quite clear to the Court that Cyrus Yawkey intended to create a charitable trust. On the other hand, there is the presence of the reversionary language which may indicate the intent to create some type of fee simple. For the reasons stated below, the Court finds that the 1929 indenture created a charitable trust.
In construing an indenture, the intent of the grantor is of paramount importance. City of Manhattan Beach v. Superior Court, 13 Cal.4th 232, 238 (1996). "In general, a grant of real property is interpreted in like manner as a contract." Id.; Machado v. Southern Pacific Transp. Co., 233 Cal.App.3d 347, 352-53 (1991). More importantly, "[t]he cardinal requirement in the construction of deeds and other contracts is that the intention of the parties as gathered from the four corners of the instrument govern," Id. The task of the reviewing court is to ascertain the intent of the parties at the time of the grant. Id. If there is some ambiguity in the deed, the court may interpret that grant in accordance with the rules of construction set forth in the California Civil Code.Id. For example, if the language of the deed is ambiguous, then the court may rely upon recitals in the deed (Civ. Code 1068); a grant is to be interpreted in favor of the grantee, but a reservation in a grant is interpreted in favor of the grantor (Civ. Code, § 1069); and most importantly for this case, if parts of the grant are absolutely irreconcilable, then the former of the irreconcilable parts prevails (Civ. Code, § 1070). Id. Finally, it is the general rule that if the terms of the deed are indefinite, the court may look to the conduct of the parties to ascertain the intent of the parties. See City of Manhattan Beach, 13 Cal.App.4th at 246.
From reviewing the 1929 indenture, it is clear to this Court that Cyrus Yawkey's dominant intent was to create a charitable trust. First, the actual title of the deed states that it is "CONVEYING MT. HELIX NATURE THEATRE . . . , TO THE COUNTY OF SAN DIEGO, STATE OF CALLFORNIA AND ESTABLISHING AN ENDOWMENT FUND FOR THE PERPETUAL MAINTENANCE AND BETTERMENT THEREOF." (Deed at 1.) (emphasis added). The title of the deed indicates that Cyrus Yawkey intended the Mt. Helix Nature Park to last in perpetuity. Second, the very next paragraph of the deed states that Cyrus Yawkey, as Trustor, and his deceased sister improved the Mt. Helix property for the purpose of"render[ing] it suitable for eleemosynary, religious, education and public uses and purposes and dedicated it as a Memorial to their Mother, Mary Carpenter Yawkey." (Id.) These words clearly indicate Cyrus Yawkey's intent to create a charitable trust for the benefit of the public and dedicated to his deceased mother. Furthermore, the fourth paragraph of the deed states that Cyrus Yawkey dedicated the Mt. Helix Nature Park for
the use, enjoyment and inspiration of All People, and desires the same to inure forever to the use of the Public in general and of the Citizens and Residents of the County of San Diego and the State of California, to be by them used, free from any and all charges, save and excepting under the contingency hereinafter mentioned, for such benevolent, religious, educational and charitable purposes as will contribute to promote knowledge and culture, to relieve the distressed in body, mind and/or spirit, to cultivate a love for the beautiful art and nature, to foster an interest in and love of music and the drama, and to promote all things which tend to elevate and refine mankind.
(emphasis added). This fourth paragraph also indicates that Cyrus Yawkey's primary intent was to create a charitable trust of both the land and the funds to maintain the land for the benefit of the public. Third, throughout the entire deed, the words "trust," "Trustee," and "Trustor" are used, another indication that Cyrus Yawkey intend to create a charitable trust. Fifth, the deed clearly states that Cyrus Yawkey conveyed the Mt. Helix Nature Park to the County "as Trustee, for the uses and purposes, and subject to the conditions of trust in this indenture." (Deed at 2.) Finally, most of the remainder of the deed recites various conditions for the fulfillment of the trust, such as the holding of annual Easter services, the lighting of the cross during the year, and the investment and use of the funds left in trust for the upkeep of the Mt. Helix Nature Park. It seems quite evident to this Court that Cyrus Yawkey intended to create a charitable trust of both the Mt. Helix Nature Park and the funds for the upkeep of the property.
However in contrast with the rest of the deed, the very last paragraph of the indenture contains reversionary language. This reversionary language, which generally indicates the granting of a fee simple, is not consistent nor reconcilable with the rest of the language in the indenture or Cyrus Yawkey's dominant intent to create a charitable trust. Accordingly, this Court is construing the reversionary language as emphasizing Cyrus Yawkey's intent that the Trustee use the Mt. Helix Nature Park for the benefit of the public and the park be dedicated to the memory of his mother, rather than the intent to divest the County of the property if it does not meet certain requirements of the deed. See Walton, 2 Cal.App.4th at 125.
This Court's decision to construe the 1929 as an indenture is also in keeping with the law's general presumptions about charitable trusts and reversionary clauses. As a general rule, charitable trusts are favored under the law and it is the duty of the court to carry out the dominant purpose of the donor.See Heil, 210 Cal.App.3d at 1510; In re Los Angeles County Pioneer, 40 Cal.2d 852 (1953). Moreover, if a doubt exists, "a gift must be interpreted in favor of a charity." Heil, 210 Cal.App.3d at 1510. By contrast, a "reverter is a type of forfeiture, abhorrent to the law." Walton, 2 Cal App.4th at 124 (citations omitted). "Because 'the law views reversion as an anomalous doctrine, an exception to the general aversion to forfeiture' the law requires clear expression of the grantor's intent." Id, (emphasis added). Additionally, "with respect to a charitable trust a right of reverter in the trustor will not be favored."McCarthy v. Poulsen, 173 Cal.App.3d 1212, 1218 (1985). Hence the law looks with favor upon charitable trusts and is adverse to rights of reversions, which further supports this Court's finding that the 1929 indenture created a charitable trust, not a fee simple.
Finally, all the parties to the deed have treated the conveyance of the Mt. Helix Nature Park and the bonds for its maintenance as being held in trust by the County for the benefit of the public. As far as the Court is aware, the County has continued to comply with the terms of the indenture even after the commencement of this suit. Additionally, the Yawkey heirs have not tried to record their alleged reversionary interest under the Marketable Title Act. Nor have any of the Yawkey heirs tried to either supervise or enforce the provisions of the deed. Accordingly, it appears to the Court that all parties concerned considered the indenture to be a deed of trust and the County the Trustee.
d. Conclusion
In conclusion, in reviewing the indenture it is clear that Cyrus Yawkey intended to create a charitable trust with the 1929 indenture and not a fee simple. The wording throughout all of the deed, except for the one reversionary clause at the end, indicates this intent. Also, the actions of the parties to the deed indicate the intention to create a charitable trust of the Mt. Helix Nature Park, with the County acting as Trustee, Finally, the law looks with favor on charitable trusts and looks with disfavor on reversionary clauses, For these reasons and those set out above, the Court now holds that the 1929 indenture created a charitable trust of both the real property and the bonds.
2. The Attorney General as a Necessary Party
In light of this Court's holding that the 1929 indenture created a charitable trust, the question remains as to who are necessary parties to the action. In reviewing current case law, it is apparent that the Attorney General of the State of California is a necessary party to any action that involves the disposition of assets of a charitable trust. In re Horton's Estate, 11 Cal.App.3d 680, 685 (1970). It is the Attorney General who has the "primary responsibility for the supervision of charitable trusts, and generally he is the proper party" to protect the interest of the public. Hardman v. Feinstein, 195 Cal.App.3d 157, 161 (1987). The Attorney General is the "overseer of charities" and represents the public, which is the ultimate beneficiary of the charitable trust. Horton's Estate, 11 CaL App.3d at 685, Hardman, 195 Cal.App.3d at 161. See also, Uniform Supervision of Trustees for Charitable Purposes Act, West's Ann.Gov. Code §§ 12580-12595.
The 1929 deed expressly provided that both the Mt. Helix Nature Park and the funds for its maintenance were for the benefit of the public; that the public was the ultimate beneficiary of the trust. For example, the indenture clearly states that the property was dedicated
to the use, enjoyment and inspiration of All People, and desires the same to inure forever to the use pf the Public in general and of the Citizens and Residents of the County of San Diego and the State of California in particular, to be by them used . . for such benevolent, religious, educational and charitable purposes as will contribute to promote knowledge and culture, to relieve the distressed in body mind and/or spirit, to cultivate a love for the beautiful in art and nature, to foster an interest in and love of music and the drama, and to promote all things which tend to elevate and refine mankind. (Deed at 2.)
Since the general public is the ultimate beneficiary of both the Mt. Helix Nature Park and the funds for its maintenance, which were left in trust by Cyrus Yawkey, it is evident that the Attorney General of the State of California is a necessary party to this action. Accordingly, pursuant to F.R.C.P Rule 19, the Court is ordering that the Attorney General be joined as a necessary party and be given full notice of the pending action. No further proceedings will take place until the Attorney General is joined as a necessary party to this action and apprised of the current status on this litigation.
B. Mt. Soledad Cross
This Court also found, in the same 1991 opinion, that the cross "displayed atop Mt. Soledad is subject to the same constitutional infirmities" as the cross atop Mt. Helix is subject.Murphy v. Bilbray, 782 F. Supp. at 1438. Similarly, this Court found that the Mt. Soledad cross "is a powerful sectarian symbol, the religious effect of which is evidenced by the uses to which it has been put as the backdrop for Christian sectarian events." Id. Although the Mt. Soledad Memorial Association ("Memorial Ass'n") requests this Court to reconsider this ruling, the Court will not do so.
Also like the situation with the Mt. Helix cross, the City of San Diego ("City") sold to the Memorial Ass'n a small plot of land underneath the Mt. Soledad cross in an attempt to comply with this Court's order. Plaintiffs argue that the sale of land is a "transparent effort to evade the terms of this court's order" and violates both the California and the United States Constitutions. (Plaintiffs' Motion to Enf Inj., at 2). Plaintiffs seek an order requiring the recision of the land transfer to the Memorial Ass'n and removal of the cross as the only means of complying with this Court's order. (Plaintiffs' Motion to Enf. Inj., at 1). Subsequently, this Court ordered further briefing on the legalities of the method of the sale of land to the Memorial Ass'n.
1. Method of Sale
In October of 1994, the City sold a small plot of land underneath the Mt. Soledad cross to the Memorial Ass'n. This plot of land is approximately 15-by-15, or 222 square feet in size. The City sold this plot of land to the Memorial Ass'n for $14,500. However, in order to sell the plot of land, the City passed Ordinance No. 0-17750, which was subsequently ratified by two-thirds of the voting electorate, Before reaching the question of whether the sale of 222 square feet underneath the Mt. Soledad cross corrected the constitutional infirmities, this Court expressed concern whether the actual method of sale to the Memorial Ass'n was both legal and passed constitutional muster,
a. Compliance with the City's Council Policy and Charter
It is clear to the Court that the method of sale complied with the City's own Council Policy 700-10 on the " DISPOSITION OF CITY OWNED REAL PROPERTY." (Council Policy 700-10, at 2). Under Section C(I) of the City's Council Policy 700-10, entitled "Sale of Real Estate," the City may sell real property, generally by public auction "unless the parcel meets the criteria for a negotiated transaction as hereinafter set out in 3 below." (Council Policy 700-10, at 3). Section C(3) lists the conditions under which a negotiated sale may be approved. (Council Policy 700-10, at 4). Section C(3)(e) provides for a negotiated sale:
When qualified nonprofit institutional organizations offer to purchase City owned land, a negotiated sale may be consummated at fair market value providing there is 1) a development commitment; and 2) a right to repurchase or reversion upon a condition subsequent. Institutional organizations such as churches, hospitals, extended care facilities, private schools and community service organizations are required to develop under the City's conditional use permit procedure.
In short, under its own Council Policy, the City may conduct a negotiated sale with a qualified nonprofit organization, which may be religious in nature, provided that there is both a development commitment and a right to repurchase or reversion upon a condition subsequent.
The sale to the Memorial Ass'n complies with the requirements for a negotiated sale under Section C(3)(e) of the City's Council Policy. In the grant deed, the Memorial Ass'n is designated as a "California nonprofit association." None of the parties dispute this designation. The Memorial Ass'n has also agreed to maintain the cross and "preserve the land as open space for the benefit of the public." (Ordinance No. 0-17750). This would satisfy the requirement that the Memorial Ass'n has a development commitment. Finally, the City reserved the right to repurchase the land if it is determined that the cross may stand on public land, (Ordinance No. 0-17750). Accordingly, the sale to the Memorial Ass'n does comply with the City's Council Policy on the sale of City owned real property.
Likewise, the sale of the land also complies with the City's Charter, Section 1 of the San Diego City Charter ("Charter") permits the City to sell, lease, convey, exchange, manage, and dispose of its real property in the city's interests. Section 2 of the Charter states that the City's powers are subject only to the restriction and limitations of the Charter. Section 55 of the Charter allows for the sale of dedicated park land provided that such change is either "first authorized or later ratified by a vote of two-thirds of the qualified electors of the City voting at an election for such a purpose." It is not disputed that two-thirds of the voters ratified the sale of land under the Mt. Soledad cross. Proposition F states:
Shall the removal from dedicated park status of that portion of Mt. Soledad Natural Park necessary to maintain the property as an historic war memorial, and the transfer of the same parcel by The City of San Diego to a private non- profit corporation for not less than fair market value be ratified?
Although plaintiffs argue that the land was not sold for fair market value, they have not submitted any evidence to the contrary. Accordingly, it appears that the sale of land to the Memorial Ass'n complies with both the City's Charter and the Council Policy. The question that remains is whether the method of sale to the Memorial Ass'n violates the California or the United States Constitutions.
b. Constitutional Issues
This Court stated in its Order that "[w]ere the parcels of land atop the Mt. Helix and Mt. Soledad crosses presently stand privately rather than publicly owned, then these cases would be entirely different." Murphy v, Bilbray, 782 F. Supp. at 1438. Rather than remove the cross entirely, the City has attempted to comply with this Court's Order by transferring a small plot of land underneath the Mt. Soledad cross. Plaintiffs now argue that both the method of sale to the Memorial Ass'n and that such a small size plot of land was transferred violate both the California and United States Constitutions. The City argues that "the sale at issue has both the purpose and effect of distancing the City from any entanglement with a structure symbolic of Christianity." (City's Opp. to Enf Inj., at 6).
Generally, a court will "avoid adjudication of federal constitutional claims when alternative state grounds are available." Hewitt v, Joyner, 940 F.2d 1561, 1565 (9th Cir. 1991), cert. denied, Joyner v. Hewitt, 502 US. 1073 (1992), citing Siler v. Louisville Nashville R.R. Co., 213 U.S. 175 (1909). Since this Court finds the method of sale violates the California Constitution, it will not address plaintiffs' federal constitutional claims. Id.
The California Constitution contains several provisions which mandate a separation between church and state. The first provision is article I, section 4, which is very similar to the language in the federal constitution. Section 4 states, in pertinent part:
Free exercise and enjoyment of religion without discrimination or preference are guaranteed. . . . The Legislature shall make no law respecting an establishment of religion.
Cal. Const. Art. I, § 4. California courts have consistently held that this "no preference" clause not only prohibits a governmental body from preferring one religion over another, but requires that the governmental body's actions may not even appear preferential. Hewitt, 940 F.2d at 1657. Furthermore, in his concurring opinion in Sands v. Morongo Unified School Dist, 53 Cal.3d 863, (1991), Judge Mosk describes the prohibition against religious preference this way:
The preference clause seeks to prevent government from giving any advantage to religion in California. The relevant inquiry is whether government has granted a benefit to a religion or religion in general that is not granted to society at large. Once government bestows that differential benefit on religion, it has acted unconstitutionally in this state.Sands, 53 Cal.3d at 911-912 (emphasis added). The second provision is article XVI, section 5 which "strictly prohibits any governmental support for religious purposes." Id. Section 5 states, in pertinent part:
Neither the Legislature, nor any county, city and county, . . . or other municipal corporation, shall ever make an appropriation, . . . or grant anything to or in aid of any religious sect, church, creed, or sectarian purpose, or help support or sustain any school, . . . or other institution controlled by any eligious creed, church, or sectarian denomination whatever; nor shall any grant or donation of real property or real estate ever be made by the state, or any city, city and county, town, or other municipal corporation for any religious creed, church, or sectarian purpose whatever. . .
Cal. Const. Art. XVI, § 5. The California courts have held that this section "admits of no de minimis exception . . . The ban is on aid to religion in any form." Woodland Hills Homeowners Organization v. Los Angeles Community College Dist., 218 Cal.App, 3d 79, 93 (1990) quoting Fox v. City of Los Angeles, 22 Cal.3d 792, 806 (1978). Accordingly, this section prohibits not only monetary aid to religion, but any official involvement that promotes religion. California Educ. Facilities Auth, v. Priest, 12 Cal.3d 593, 605, fn. 12 (1974). The Ninth Circuit has stated that these and other provisions of the California Constitution are ""proof of the framers' intent to build a Jeffersonian wall of separation between church and state."' Hewitt, 940 F.2d at 1566, quoting Sands, 53 Cal.3d 863 (1991).
It is apparent to the Court that the City's primary purpose for the sale to the Memorial Ass'n of the small plot of land underneath the Mt. Soledad cross was to save the Mt. Soledad cross from removal and/or destruction. First and most telling, is the wording on Proposition F. Several times in the ARGUMENT IN FAVOR OF PROPOSITION F, it states that the intent of Proposition F is to " SAVE THE CROSS ON MOUNT SOLEDAD." Second, the City did not sell the parcel of land to the Memorial Ass'n until after the Supreme Court denied the City's Petition for Writ of Certiorari seeking review of the Ninth Circuit's opinion, which upheld this Court's order forbidding the permanent presence of the Mt. Soledad cross on public property.
It is the City's efforts and actions, though understandable, to "save" the Mt. Soledad cross, "a powerful sectarian symbol," that violate the "no preference" clause of the California Constitution. Article I, section 4, prohibits even the appearance of preference for one religion over another. For the City to take the position of trying to "save" such a preeminent Christian symbol such as the Latin cross atop Mt. Soledad clearly shows a governmental preference for the Christian religion. It is this appearing to prefer one religion over another which the California Constitution prohibits.
"Murphy v. Bilbray, 782 F. Supp. at 1436.
The method of sale to the Memorial Ass'n also violates both article I, section 4 and article XVI, section 5 of the California Constitution. The City entered into a negotiated sale with only the Memorial Ass'n. No other person or entity was allowed to either bid or offer to buy the plot of land underneath the Mt. Soledad cross. Although the Memorial Ass'n both erected the Mt. Soledad cross, maintains and conducts Easter sunrise services at the site and accordingly, would be a likely candidate to purchase the land underneath the cross, it is the exclusion of any other purchasers of or bidders for the land that gives the appearance of preferring the Christian religion over all others, This exclusion of any other purchasers or bidders also promotes and aids the Christian religion because it is assumed that the Memorial Ass'n would continue to nightly illuminate the Mt. Soledad cross and permit use of the site "as the backdrop for Christian sectarian events, such as weddings, baptisms and Easter sunrise services," Murphy v. Bilbray, 782 F. Supp. at 1436. Again, it is this type of preference and/or aid to the Christian religion that the California Constitution forbids.
2. Size of plot
Finally, even if the method of sale passed constitutional muster, the City's attempt to comply with this Court's order by selling only a small portion of the land underneath the Mt. Soledad cross still shows a preference or aid to the Christian religion. The City sold approximately 222 square feet of land underneath the Mt. Soledad cross directly to the Memorial Ass'n. However, this small plot of land sits in the middle of approximately 170 acres of municipally owned and maintained park land. Moreover, the Mt. Soledad cross sits high atop a hill and is the focal point of the municipally owned park. To reach the cross or the summit of the hill, a visitor must travel through several acres of the municipally owned park. Despite a small disclaimer plaque, it is hard for this Court to imagine that any visitor to the Mt. Soledad hilltop and cross would not conclude that the City was directly involved in the preservation and maintenance of the Mt. Soledad cross. Again, this violates the California constitutional strictures against state preference or aid of religion. Accordingly,
IT IS ORDERED that:
B. Mt Soledad Cross
A. Mt Helix Cross
1) The 1929 indenture by Cyrus Yawkey created a charitable trust of the real property, the Mt. Helix cross, and the funds set aside the maintenance of both.
2)The Attorney General shall be added as a necessary party to this action and be apprised of the ongoing litigation.
1) Both the method of sale and the amount of land sold underneath the Mt. Soledad cross do not cure the constitutional infirmities outlined in this Court's previous Order.