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Cross On Park Land Must Remain While State Court Reconsiders Its Eminent Domain Ruling


 In Lions Club of Albany, California v. City of Albany, (ND CA, Nov. 17, 2022), a California federal district court clarified its 2018 ruling in which it held that the city of Albany violated the Establishment Clause by acquiring for a public park a 1.1 acre parcel of land that includes a large cross. Originally the cross was on private property, and the Lion’s Club held an easement to maintain the 20-foot high cross and to illuminate it each Christmas and Easter. In its earlier ruling the court said that the city could cure its Establishment Clause problem in one of several ways, one of which was by taking the Lion’s Club easement by eminent domain. (See prior posting.) In May 2022, the city began state court eminent domain proceedings.  The state court permitted the city to take prejudgment possession of the Lion’s Club easement and take down the cross and store it in a safe place. The Lion’s Club than filed the present federal court action seeking a preliminary injunction, contending that its free speech and free exercise rights were being violated. The court said in part:

The City wants to keep the park and remove the cross, not sell the land. Further, as revealed at our hearing, there is and has been no current offer by the Lions Club to purchase a parcel that includes the cross. These considerations are relevant in weighing hardships and, as explained above, the question of provisional relief is wholly in the hands of the [state court] Judge Chatterjee. He is free to rule either way without offending any order or dictum by this court. 

At our hearing, however, it also developed that the City cannot say with any certainty whether it can put the cross back up after its provisional removal, should the City ultimately lose the eminent domain jury trial…. Thus, as the Court sees things, this is not just a decision merely pending litigation, but rather practically, once the cross is down, it is down for good. This raises a serious exercise of religion problem and in considering this issue, Judge Chatterjee’s ruling appears to have been based on a misunderstanding of this Court’s prior ruling. Therefore, until such time as Judge Chatterjee can reassess the motion for prejudgment possession, taking into consideration the correct understanding of the June 2018 Order, removal of the cross is ENJOINED.


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