San Diegans for Mt. Soledad Nat. War Memorial v. Paulson

Cite as: 548 U. S. ____ (2006) 1
Opinion in Chambers
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SUPREME COURT OF THE UNITED STATES
SAN DIEGANS FOR THE MT. SOLEDAD NATIONAL
WAR MEMORIAL
05A1233 v.
PHILIP K. PAULSON
CITY OF SAN DIEGO, CALIFORNIA
05A1234 v.
PHILIP K. PAULSON
ON APPLICATIONS FOR STAYS
Nos. 05A1233 and 05A1234. Decided July 7, 2006
JUSTICE KENNEDY, Circuit Justice.
In this long-running federal-court litigation the United
States District Court for the Southern District of Califor
nia has ordered that, within 90 days of May 3, 2006, the
city of San Diego, California, must comply with an earlier
injunction, affirmed on appeal, that barred the city from
maintaining a prominent Latin cross at a veterans’ memo
rial on city property. The premise of the injunction was
that the cross’ permanent presence there violates the
California State Constitution. See Murphy v. Bilbray, 782
F. Supp. 1420, 1426–1427, 1438 (SD Cal. 1991), aff’d, Ellis
v. La Mesa, 990 F. 2d 1518, 1520 (CA9 1993), cert. denied
sub nom. San Diego v. Paulson, 513 U. S. 925 (1994); see
also Paulson v. San Diego, 294 F. 3d 1124, 1133, and n. 7
(CA9 2002) (en banc) (holding that a proposed sale of the
memorial violated the state constitution), cert. denied, 538
U. S. 978 (2003). The city has appealed from the District
Court’s order to the United States Court of Appeals for the
Ninth Circuit. The Court of Appeals has ordered expe
dited briefing and scheduled oral argument for the week of
October 16, 2006; it denied, however, a motion to stay the
District Court’s order pending appeal. In No. 05A1234,
2 MT. SOLEDAD NAT. WAR MEMORIAL v. PAULSON
Opinion in Chambers
the city of San Diego has applied to me, as Circuit Justice,
for a stay pending appeal. In No. 05A1233, the San Die
gans for the Mt. Soledad National War Memorial, a pro
posed intervenor in the case, likewise applies for a stay.
On July 3, 2006, I issued a temporary stay pending fur
ther order. I now grant the city’s application, while deny
ing the proposed intervenor’s application as moot.
In considering stay applications on matters pending
before the Court of Appeals, a Circuit Justice must “try to
predict whether four Justices would vote to grant certio
rari should the Court of Appeals affirm the District Court
order without modification; try to predict whether the
Court would then set the order aside; and balance the
so-called ‘stay equities.’ ” INS v. Legalization Assistance
Project of Los Angeles County Federation of Labor, 510 U. S.
1301, 1304 (1993) (O’Connor, J., in chambers)); see also, e.g.,
Heckler v. Redbud Hospital Dist., 473 U. S. 1308, 1311–1312
(1985) (Rehnquist, J., in chambers). “This is always a diffi
cult and speculative inquiry.” Legalization Assistance Pro
ject, supra, at 1304. Although “a stay application to a
Circuit Justice on a matter before a court of appeals is
rarely granted,” Heckler, 473 U. S., at 1312 (internal quota
tion marks omitted), consideration of the relevant factors
leads me to conclude that a stay is appropriate in this case.
To begin with, the equities here support preserving the
status quo while the city’s appeal proceeds. Compared to
the irreparable harm of altering the memorial and remov
ing the cross, the harm in a brief delay pending the Court
of Appeals’ expedited consideration of the case seems
slight. In addition, two further factors make this case
“sufficiently unusual,” ibid., to warrant granting a stay.
First, a recent Act of Congress has deemed the monument
a “national memorial honoring veterans of the United
States Armed Forces” and has authorized the Secretary of
the Interior to take title to the memorial on behalf of the
United States if the city offers to donate it. §116, 118
Cite as: 548 U. S. ____ (2006) 3
Opinion in Chambers
Stat. 3346. Because this legislation postdates the Court of
Appeals’ previous decisions in this case, its effect on the
litigation has yet to be considered. Second, San Diego
voters, seeking to carry out the transfer contemplated by
the federal statute, have approved a ballot proposition
authorizing donation of the monument to the United
States. While the Superior Court of California for the
County of San Diego has invalidated the ballot proposition
on the grounds that the proposed transfer would violate
the California Constitution, Paulson v. Abdelnour, No.
GIC–849667 (Oct. 7, 2005), p. 35, the California Court of
Appeal for the Fourth Appellate District has issued an
order expediting the city’s appeal of the Superior Court
decision, see Paulson v. Abdelnour, No. D047702 (June 20,
2006).
If the state appellate court reverses the Superior Court
and allows the memorial to become federal property, its
decision may moot the District Court’s injunction, which
addresses only the legality under state law of the cross’
presence on city property, see Murphy, supra, at 1438.
This parallel state-court litigation, furthermore, may
present an opportunity for California courts to address
state-law issues pertinent to the District Court’s injunc
tion. The state appellate court’s decision may provide
important guidance regarding those issues and the effect,
if any, of the recent federal statute.
Although the Court denied certiorari in this litigation at
earlier stages, Congress’ evident desire to preserve the
memorial makes it substantially more likely that four
Justices will agree to review the case in the event the
Court of Appeals affirms the District Court’s order. The
previously unaddressed issues created by the federal
statute, moreover, reinforce the equities supporting a stay;
and the pendency of state-court litigation that may clarify
the state-law basis for the District Court’s order further
supports preserving the status quo. Accordingly, although
4 MT. SOLEDAD NAT. WAR MEMORIAL v. PAULSON
Opinion in Chambers
the Court, and individual Circuit Justices, should be most
reluctant to disturb interim actions of the Court of Ap
peals in cases pending before it, the respect due both to
Congress and to the parallel state-court proceedings per
suades me that the District Court’s order in this case
should be stayed pending final disposition of the appeal by
the United States Court of Appeals for the Ninth Circuit
or until further order of this Court. If circumstances
change significantly, the parties may apply to this Court
for reconsideration.
For these reasons, the application in No. 05A1234 is
hereby granted. The proposed intervenor San Diegans for
the Mt. Soledad National War Memorial was denied leave
to intervene in the District Court and in all events seeks
no relief beyond the stay granted in No. 05A1234. Sepa
rate consideration of the application in No. 05A1233 thus
is unnecessary and this application hereby is denied.