Legal News

Justices Agree to Hear Case of ?Little Donut Hole of Land with a Cross?

By Ashby Jones

While most of us in the Eastern Time Zone were still rubbing the sleep from our eyes and dissecting whether Mickey Rourke got robbed last night (the Law Blog’s take: he didn’t), the folks down at One First Street, N.E., were busy churning out orders.

Of perhaps greatest note: The justices agreed to take up a fascinating case called Salazar v. Buono, on appeal from the Ninth Circuit. Initially, the lower courts — first a federal judge in San Francisco and then the Ninth Circuit — had ordered the federal government to take down an 8-foot cross mounted on federal land in California as part of a war memorial because, they held, the maintenance of the cross violated the Establishment Clause of the First Amendment. This opinion was handed down by the Ninth Circuit in 2004.

However, while the first appeal was pending, Congress passed a law transferring the land into private hands. The lower court ruled the maneuver violated its original ruling, and in a 2007 opinion penned by Judge Margaret McKeown, the Ninth Circuit ruled:

That land exchange . . . would leave a little donut hole of land with a cross in the midst of a vast federal preserve. The issue we address today is whether the land exchange violates the district court’s permanent injunction. We conclude that it does, and affirm the district court’s order permanently enjoining the government from effectuating the land exchange and ordering the government to comply with the original injunction.

Click here for the Bloomberg story; here for the AP’s take; here for the Ninth Circuit’s 2007 opinion.

The current challenge, however, could turn on our old friend, standing. The appeal contends that Frank Buono, the Oregon resident objecting to the cross, lacks the ability to sue. The appeal also argues that the congressional land transfer obviated the constitutional problems.

According to Bloomberg, President Obama’s solicitor general nominee Elena Kagan could well shift positions perhaps even withdraw the government’s appeal.

“There’s no question the Obama administration will change the perspective,” said Marci Hamilton, a professor at Yeshiva University’s Cardozo School of Law in New York, to Bloomberg. She said that, even if the new administration presses ahead with the appeal, “they don’t have to put everything into it.”

Full post as published by Law Blog - WSJ.com on February 23, 2009 (boomark / email).