city twenty minutes and the city group ten minutes in that the city has also dated some of its time so the united states to address the intervening action of the federal government in acquiring the property from the city and it effect on this litigation and with any remaining time i will address the merits of the city's claim that the district court of used its discretion in issuing the may third order so with that said i've turned to mr nelson on behalf of the united  this is a jurisdictional question and this case has to be dismissed and the underline permanent injunction must be vacated ok and that's that's the hundred pound gorilla and i thank the  as much as much fun as it is thinking about the underlying issues is really no way around the question of well what do we do now and what i'd like to hear from you and from everybody when it's their turn to speak is practically speaking what do we do if knowing that there is a challenge pending to the federal government's ownership of the property so that it is conceivable that someday in the future the city winds up holding the property again so what do we do with this case in the meantime you suggest it should be dismissed completely i suspect we're going to hear from somebody else that it shouldn't be dismissed completely and i'd like for you to address why we should go one way and not the other in dealing with this practical problem absolutely judge clifton  it's clear in the united states supreme court precedent that this case must be dismissed article three standing has to exist at every single point along the way in the case as of august fourteenth there is and was no live controversy therefore under article three this court has no jurisdiction to do anything except dismiss the case as moot and what that effectively means you know there's no exception to that in this case there's this is the united states made this case when the city didn't do it there's no voluntary act on any on any of the defendants and in a situation like that the fact that this case may come back or this case can never come back its over the plaintiff has suggested well i've i've sued the united states and therefore the city may regain ownership a couple of responses to that first of all it's entirely speculative there is no indication contrary to his claim that clearly he's going to win in two hundred thirty years of united states history no legislative taking has ever been overturned  insurmountable task the supreme court has on a number of occasions i've held the power of the united states to for legislative taking and it did so in the gettysburg case very much on point where the united states took  memorial related property so number one it's speculative whether this case will ever come back in the city would ever own at number two it doesn't really matter because as of today and  resurrected if you will ownership in in the land what would happen in that new lawsuit or could it build on the carcass of this one or do you really start from square one i do think you start from square one judge clift the underlying permanent you're you're you're obviously aware that there's a certain inefficiency in the system if after a good number of years you go back and pretend never mind and go back and start from square one totally understood the united states supreme court understands the unification see as well they are sympathetic to that inefficiency but if article three means what it says then this court is bound by that and what that means is that th mean i'm not sure whether or past so in other words at least as that one justice indicated a view on mood two responses first of all i just as kennedy specifically was referring to proposition  eight and saying that if proposition a were upheld on appeal the case may become moot i would argue that just just kennedy was doing exactly what a good article three courts should do and that is not issuing an advisory opinion there was no life case or controversy at that point and therefore he wasn't making a determination i don't think there was any hesitancy there's really no question here that the cases mood there there may be some question as to what what this court should do but even that the united states would argue it may well be that the united states has belts a pencil spender's protection here we may you know have it through legislative taking and it may well be that the state court of appeals overturns this imperious quits decision on actually would have the power or authority to stay the case and it's unclear exactly what the the state court of appeals is going to do with their case but for a federal court we're bound by article three which does mean that this case does have to be dismissed didn't have authority to speak specifically to that i mean we can take action but is there anything that prohibits us from just putting it on the shelf to see if in fact the united states is the owner of the property in the long run i believe the the federal district court while it was on appeal to the tenth circuit the bush administration instituted a new rule and said that mooted the case the state of wyoming went into the concert and said wait wait wait that's already been challenged it's it may well be that the bush administration rule is going to be held unconstitutional why don't you just hold this let's figure out in the tenth circuit said now we are under article three we do have the responsibility dismiss it sure enough the bush administration rule was held unconstitutional and now there's a big debate on you know whether they can go back and try to resurrect that case or not though those are very interesting academic questions for another day but for purposes of this court on this in that i'm the one hand you have the what you would then a fight is the article three requirement case or controversy requires dismissal even know it will require the dismissal acase it's been through the court system for a good long time and a new suit in the event that the city for games ownership of the property you say they really can't be built on the carcass this case can't be revived you started square one the the practical unattractive difficult to escape is there anything we have here other than well you've got this conception of article three on one side means we've walked the plank on this side and that's just how it is nothing more cheerful i cannot i have full faith in plaintive counsel that should do this revert back to the city in any way shape or form he will advance and try and resurrect the carcass that he's worked so hard to create over the last seventeen years and it you know it it's true that there's been decisions that have been issued now we're not a party to this case united states but we would argue in justice kennedy pointed out it's unclear what worth the current carcass really is in two thousand and four the united states declared this is a national war memorial and justice kennedy stayed the district court's injunction in part because he said no one's really considered no court is considered what effect that would really have so there is a good argument regardless of what this court does this city again this this can be years down the road and there's a very low probability of chance that it would ever occur but if the city came back in here years from now this court would just simply be dealing with a totally different submit affidavits with copies of everything that happened up to the point it became moot and a new court could take that into account but it would the theory of it would be it was already lost it could be a motion some question as to whether legislative action should be taken and it was still taken but remember that this was passed by unanimous consent in there in the senate it was passed by three hundred and some odd votes in the justice conceivable mr paulson has fought this battle for seventeen years against great odds he would like to live long enough to see some resolution and what the government is he's fifty seven years old and he has been diagnosed with terminal cancer he's been given about a year to live unfortunately what the government has suggested will i'm afraid result in another seventeen years of litigation and i suspect that's exactly what the government wants because that's been their actions for the past seventeen years is to delay and to do whatever they can including this latest path which was on equivocally and done to save the crossed that was the whole reason this action was taken and one of the judges asked if there was any action on the part of the city in this behalf and there was indeed action on part of the city the mayor flew to washington d c the mayor help press conference as the mayor said we are going to try to get the government to take the land from us because when we try to give the only into government that didn't work we're going to do whatever it takes to save this cross on routes all of that and i  that the federal government assume this property out of a wild coincidence i'm not sure that really says anything to this debate though because the problem is plain that this current lawsuit can't reach the united states you can't propose to add the united states to a party because the theory of the lawsuit doesn't reach the united states so ok here we are we've got property lost and that's based on a california constitution out there in reaching had states and it turns out united states today at least is the legal owner of the property what can we do well i don't think it goes the united states i think it goes to the city of san diego and it's an injunction ordering them to act in a certain way and that injunction is currently state it's appropriately state i think justice kennedy said let's wait and see how these two appeals turn out that's another reason we need some resolution is we're waiting for how these appeals to turn out and that's why we have the state what we know is what has already happened in the past is the city has tried to sell this land they've taken money and they've given the deed and the court in the past has found those sales to be void haven't issue and it's reasonably likely that it's going to do the same thing again there's never been a taking like this before in this situation this was a legislative taking with no hearings whatsoever and i took it for one purpose one purpose only and they stood on the senate floor and said that we're taking it to say this crossed so it's reasonably likely that this sale is going to be void as an issue and even if it isn't as the supreme court choices in the lawsuit this pending before it right now it can find the sale void of an issue you know or it can order the federal government to remove the cross well i can also say the whole thing is constitutional obviously but that's not very likely if it orders the federal government to remove the cross the federal government and then do exactly what they did in this case we're going to reconvene it to the city of san diego and not remove the cross and then say there's no jurisdiction and then dismiss the case and then we're back for another seventeen years well not not necessarily because you can't have the federal government to this lawsuit because the theory the lawsuit doesn't reach the federal government the converse isn't true if you start up against them and that's usually mean real property laterals ar decided to try to dodge the court by transferring and they always come to an unsuccessful and because the court gathers everybody up this one is unique because you can't gather the united states given that is not subject to california constitution but once you're on the other side and a lawsuit against the united states can pick up anybody else along the way you can even have the california theory against the other party so i understand the quandary we're in now i'm not sure it happens the other direction it happens again at the next step well it may or may not but it doesn't prevent the city from going through the same machinations as we're seeing here tonight i think it's safe to assume that either of these parties is going to go away quietly as we're sitting here today they now want to argue theories that somehow the process changed even though they've argued it to this circuit before and so you know we've got a whole new case every time we hang a new clock up there but i don't we're not trying to bring the united states into this case judge thompson has issued an order against the city of san diego there has been some change it may not be a permanent change in fact it's very likely to be a temporary change so justice kennedy has done the appropriate thing and say all right we're going to stay that until we find out how this pans out and together and acted unconstitutionally savory with a simple because it's a politically popular thing to do today it may not be next year but it is today and they managed to accomplish it because they have way much more power than mr paulson does the mr  pretty much all there is to it because whatever happens down below if this is dismissed if the city does not have the same thing over its head after seventeen years if the city owns the cross again if that's what's the site of the district court which i think it very likely will be then the city is open to do whatever the heck it wants to do again until we go back and fight it all over again it may decide to have another sale to a private party and whatever we decide it will appeal but now we're almost through that sort of like that what i mention of the brief of this of us he's pushed this rock up the hill for seventeen years and he's almost there he's at the peak of the hill and now the government wants to kick the rock back down to the bottom of the hill it doesn't want to just void what happened you three and i thought we got though do what authority is there for us to do something that retains the case or because we're not acting against the united states government we have an injunction against the city of san diego and we and that renewed because this new idea came up of hey let's give it to the federal government and if that doesn't work let's have the federal government take it seventeen years was finally enough after this court in two thousand to issue non bank decision that said any efforts on the part of the government to preserve this process run constitutional the judge thompson gave them another four years to get a remedy to gether and when they didn't he finally said that's enough this is an order of them as effective against the city of san diego that has been it's not against us the federal government it's against the city of san diego it has appropriately been state if it turns out that the federal government does own this land and their acts were constitutional then then that's just fine the order will have no effect and i'm sure the city can go in and ask to have it dismissed certainly i'm going to try to force an order that has no effect but this was not an order against the united states government and the arrogant case of the united states supreme court case sets it's absolutely certain that this is never going to happen again and everything's resolved the case is not moved if there's a possibility that this offense is going to reoccur then the case is not moot it's not only a possibility i think it's a real probability based on the fact based on all the law we have the there been twelve cases decided involving that crosses on government property it's not a quince that's it they've all been decided exactly the same way this is the most powerful and preeminent symbol of the dominant religion in our country and as this court and every other court has always said it unmistakably conveys a government preference for one religion over all others so mr paulson this pot long and hard to get it where it is after seventeen years to finally have an injunction with some teeth against the city not the federal government so i don't think we have an article three issues that matter has been stayed it's been appealed to you i think again for the way i don't think there's much merit to the appeal clearly he did not abused his discretion in making that injunction after fifteen years of the leg when he gave him by the days to do it so it would be appropriate for this court not to move but to affirm the decision for the stay isn't placed there is no action going to be taken against the federal government and a lower court is going to decide whether the federal government's acts were unconstitutional or not if you move this case you may be taking a very drastic that would cause several problems i can foresee of now which are the the government's doing more of the same and us not advancing the ball in any respect back with it's going to be some in scheme on part of the city or the federal government that's going to get appealed and i'm going to be you know three or four years away at least what are you any remedy what is it you want to i want you to say that this is not mo because this is not an action by the court against the federal government it is state it's appropriately stayed it's not the state it's not going to be relieved until the matter is decided lower court it seems so clearly and obviously that the government's act unconstitutional that would be a gross miscarriage of justice to move this case affirm justice thompson's order and we will get a resolution from the district court  once we have that resolution that justice will be done and if the federal government is right course this injunction cannot be issued or cannot be made effective against the city but i'm i'm fairly confident that that city has appealed the injunction and that's why we're here today so understand that but but you you want us to continue to resolve the appeal and then stay the case as opposed to staying the case and leaving the appeal in the bands i just want to make sure i understand your position maybe i was a little confusion about the case as already stated i guess we could stay out further pending the resolution unless the city wants to dismiss that but the city broader appeal as to whether the judge abused his discretion clearly i don't think he did i think this court should rule on that and i don't think they should we only have jurisdiction we only have jurisdiction to rule on the appeal if there's still a live controversy right yes you're back but you say it's possible indeed in your view likely that the same issues will be presented again after resolution of the the new claims yes there is a very live controversy this court in the clark decision in the case of that there was a lot of controversy when someone who  going to who represented to the court that they were going to apply for an adult license in the future was challenging the statute even though they didn't own a business and said well that's good enough to make a life controversy we don't have that here we have the controversy happened and if the city owns the land then that injunction should be sitting there on the day that's the site because the city's had seventeen years to resolve this problem and they haven't done it and mr paulson should get some benefit of the work he's done and should be able to see some justice hopefully in this case at some point and the only way that's going to happen is if once the lower court or once the court finally decides that the  that the matter is resolved forever and that it's not going to come back and become an issue but they start an argument and here you have at least a reasonable likelihood that this transfer is going to be overturned the burden is on them to show this case is completely moot there is no no controversy is ever going to come up and this case on this issue again they're what the government argues that they're in two hundred twenty years there's never been a legislative taking that's been invalidated of the concept from what i can find there only been two or three legislative takings ever the government does not normally take property by legislative feet got that usually do it in the normal way which involves periods of server this was an extremely extremely unusual taking and i don't think it's ever occurred in this type of context and as we know we have already had a lan transfer avoided app an issue you know what's in this case and i expect that's a very reasonably reasonable likelihood again or we could have the other thing happen because it could go either way the judge could say i'm not going to go void of an issue about what i'm going to do is one of the federal government to remove the cross at which point the federal government says we're given the city land back and we convey the land to the city and then there's no instruction in place and then the city decides to go through the same song and dance it's been going through for the last fifteen years and who knows where j where you're thinking boy all this correct haven't they correct with this there we have a status conference coming up in the middle of november we expect to have a resolution i would hope sixty days after that well the city has appealed the case and it wants a decision on whether the judge abused his discretion or not and i don't know that taking it under submission what does that mean if there are going to be appeals it's going to be under submission for the next three years the question as to whether the city has an interest in pursuing the appeal that's a question that you probably best be answered by the city so we'll find out in a few moments but it sounds like if the dust may settle in the district court as rapidly as two months from now i'm likely going to get a decision of this case within two months anyway so well but then we're going to have appeals of those appeals and i just want to say one more thing about the condition precedent subsequent issue and that is what we really have here is what we may have what we may have is an injunction that was issued that cities do something with thirty within ninety days and in a bad faith attempt to get around that lawful injunction in a bad faith attempt to get a lot around that lawful unlawful injunction the city and the federal government conspired to do something to save the cross which as we all know is unconstitutional they've been fairly vocal and open about their intent and so if we're going to wipe out seventeen years of judicial decisions and all the work mr paulson has done and maybe part of the smoothness is it's an attempt to get rid of some attorney's fees issues as well but if we're going to do that based on the bad faith conduct of the parties on the other side then i think that's just a terrible terrible miscarriage of justice and again i don't think article three really applies when we're talking about and if i have to start all over again as this court knows i am up against some awfully nation son of a guns i am sure they'd say the same yeah well they have a lot more power than i do they have a lot more money than i do and they and that that should be done we would obviously have to stop this or so i would for at least i would think we would have to step back for some supplemental argument one way because we haven't addressed that today t what would we have to do then i mean after we are have this argument reset or well i'm not sure you would you could review the briefs and make that decision whether you think it would be helpful or not i think the briefs are fairly fairly clear i hate to keep casting aspersions of my colleagues here who i like and enjoy very much and i appreciate their professionalism but i think there's not much merit to the suggestion that just thompson abused his discretion for a judge to put an injunction that's fifteen years old i really don't think you need to hear much from me about it i've said it in the brief if you think it would be helpful we'll be glad to come back up i'm sure and argue that but i'm not sure you need to hear too much more about i don't think suggests that he thinks that four justices may grant servo to grants or if we'd simply affirm which is what you're asking so i think is a practical problem is that is difficult for us to say are there's nothing to th given that we've got justice kennedy's order sitting out there suggesting that at least some people may think there's something to it and so i can address now how it actually proceeds to go about doing it but i think the problem and vegetables suggestions probably a good one that we today were off track we're not here really dealing with the injunction and what we thought that if he was going to be about something has intervened well that happens and maybe if we get back on track in the future that we start from square one of the appeal i don't know but i think it's hard for us to say that there can't be any merit to the appeal given the current circumstances well we will certainly come back and do that i thought justice kennedy's primary concern was the first thing he addressed was those two cases on appeal it's reasonable to stay the execution of this injunction intil those two appeals are decided of the appeal are off the table intervention into it surely has to be certainly into it and obviously we filed the motion to dismiss and vacate because the because it's moot because obviously this case this moon is dismissed is the best way to protect our client's interests which is the reason why we want to intervene in the first requires there to be a live case of controversy throughout the course of the seedings for this court to have jurisdiction to hear a case and decide a matter and there's a couple things i want to point out there is no s quite specifically quote by the time move this is an issue the case has been brought in litigated often as here for years to a man in the case an advanced stage may prove more wasteful than froogle this argument from some cost referring to th will system does not license courts to retain jurisdiction over cases in which one or both of the parties plainly lacked a continuing interest so it doesn't matter if this case has been going off for seven years seventeen years or seventy seven years it is moot as august fourteenth and you're not just interested or are no longer interested in the cases if the case is moot this court i think it would be improper for this court to determine it's not moot which is why i want to be able to continue to press those arguments that being the case but certainly when the  ownership of the property and you don't seem to go now and you look at that man soledad veterans memorial on top that hill that is a thread a national memorial a federal memorial on federal property it doesn't belong to the city of you cannot enforce an injunction against the city based on stay con remoteness the party doesn't have an interest in the longer i'm suggesting well gee the best way for the city of san diego to demonstrate that is to dismiss the appeal and we don't have a problem in more it's not before us that's like that up and you can deal with the district court to find out whether there's an injunction to this case we can offer the explanation but either the answer is yes or no if the answer is yes then what you just read to us doesn't apply if the answer is no then we'll wait to see the study's explanation for why it doesn't dismiss the seems to me like the city of san diego has a continuing interest because they're spending an awful lot of time and money sitting here saying that they care they're not an interested they're not back in san diego and i didn't call that and say we don't care anymore don't worry about case and so this court is not going to dismiss an vacate and then leave the city liable for potentially for attorney's fees i mean that's certainly i think the city has an interest in the case to the point where this injunction is removed because a pregnancy only last is nine months and so the nine months litigation may not be fulfilled so this is so that's where the exception comes up it comes up with the other come through but that's the points of that exceptions not that for some speculative basis somewhere down the line this property may eventually revert back to the city and so this case is the life is still a lot of controversy it's not there is simply no exception that would give this court the power to continue to hear this case and it would be improper for it to to stay that we would like to do our peel the semester good point so that's the same as when i wrote that a few weeks ago as i stand here today i don't have the authorisation to say to this court the city has no further interest what i can say though again goes back to the two thousand and two in the inbox panel decision stated that there were multiple ways in which the city could cure the constitutional infirmity previously identified nellis and what the district court does now in two thousand and six is basically say there's only really one way to cure that to take the cross down in light of the intervening circumstances and the federal government has made the offer initially in two thousand and four to extract the property upon a donation from the city the city put forth a direct initiative to the voters of the city of san diego those voters approved did not mislead has been challenged in state courts where we presently argue just on tuesday of this week the validity under state law of that proposition so the california that aspect of it since then of course the federal government has now come and passed subsequent legislation and taking the property from the city i really wish not to get into the merits of some of the allegations regarding collusion between the city and the federal there you know i think the evidence to back his interest in front of judge moscow which will show that the mayor of city of san diego made one visit to washington d c and spoke to somebody within the white house other than that i don't think that the evidence that will be produced before just mass which will show anything else and it's one of my colleagues mentioned again you had the entire house of representatives the senate as well as the president signed this legislation legislation into law so be that  occurred in august the federal government is taking the property if there is an affirmative injunction how can any court then inforce that injunction against the city when it no longer possesses the property with the city couldn't simply go back into federal property and remove the cross at this point  type of this you mentioned the argument on tuesday which reminds me that's why this case was rescheduled to day in and so that's on track presumably for a decision  not complying with the theories are but do you have an understanding as to whether we may actually be on a track where there's a resolution of in a relatively near term on both of these cases proceeding we heard about judge roberts was having a desired result quickly a court of appeals got a clock ticking what kind of timeframe do you anticipate from my perspective again i think the court's right that obviously whatever the cloud california court of appeal does that they'll probably be efforts for further review before the california supreme court will if in fact the city's unable to donate property presumably that it owns to the federal government will that address i think not i think because the theories that are before judge moskowitz that have been advanced by mr paulson in lease to date is again that that entire effort was done for the express intent purposes of avoiding judge thompson's injunction so we it's circular we come right back to where i have no serious hope the problem will go away by itself but if there's a possibility that it will then i'm not unhappy about that i certainly understand but i could honestly stand before the court and say with optimism that a resolution is right around the corner first let me say i think it's and in this record as well as the mass which record that the mayor in fact not only went to the white house but he issued press releases telling the public i'm going there to try to save the cross to get the federal government to take our land keeps rising it's first amendment rights i'm sure i'm sure it is but one we're looking at the conduct of the parties here and whether we're going to wipe out all this litigation and i think the conduct of the parties is it is absolutely clear that the litigant is no longer in need of the judicial protection that it is sought and that's a significant significant burden on the moving party and it also that in addition to it being absolutely clear that they wouldn't need the judicial protection it must be equally clear that the wrongful behavior could not reasonably be expected to recur and i think that's exactly what we should expect lastly want to refer to the clark case which said you know even if the case isn't moot the court can continue to exercise jurisdiction over a moot case even if the court decides it's moot which i clearly think it is the said in the coral construction case that the court to continue to exercise jurisdiction in the interest of justice and when you're talking about judicial economy and the interest of justice clearly in this case i think the court are no grounds to call this case moot because the issues are not going to go away and certainly even if it is moot this court can continue with its jurisdiction asked the state issue it occurred to me that perhaps what this court could do court to move the issue not the city of san diego it's great stuff that takes no position so i would ask this court not to let the issue you know decide on the merits or call us back for a decision on the merits and if this court needs to issue a stay at that time the city can certainly ask this court to reinforce judge kennedy stay or whatever to stay the injunction until we get a decision from the lower court because right now quite frankly we don't know who owns the land the federal government can say it does but mr paulson can say the are challenging the taking by the federal government not because of all the eminent domain issues which could also come into play but because of the constitutional issue the government clearly took it to save the cross that's in the legislative record and so i've you know i that it would be alive if the case continues in some fashion obviously we understand you're saying the case shouldn't continue if it continues in some fashion i don't think we could take any action anyway at this moment so it might make my point i think if you're not going to tomorrow morning