Federal Judge Grants 900K in Fees

SAN DIEGO UNION TRIBUNE
By Greg Moran

May 22, 2007

NELVIN CEPEDA / Union-Tribune A fight over legal fees is swirling around the Mount Soledad cross.

A federal judge said yesterday that the city of San Diego must pay more than $900,000 in legal fees to the attorney for Philip Paulson, the atheist who sued over the presence of the Mount Soledad cross on city land.

U.S. District Judge Gordon Thompson Jr. ordered that the city pay lawyer James McElroy $962,673.28 for his work on the case over the past four years.

Thompson is the same judge who ruled in 1991 that the cross on city land violated the state constitution's ban on government preference for religions – a ruling that touched off an epic legal battle that continues today.

City Attorney Michael Aguirre immediately said Thompson's ruling would be appealed.

He said the city would argue, as it did unsuccessfully in front of Thompson, that McElroy is not entitled to fees because he was not on the winning side.

McElroy had argued that he had, in fact, won – even though Thompson's 1991 order was never carried out.

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“The federal government would not have taken the cross if not for this lawsuit,” McElroy said after yesterday's hearing. “When the federal government took that land that solved the constitutional problem in Paulson's suit – and we effectively won.”

But Aguirre said that the city will argue McElroy was not the winner – especially given his current suit seeking to overturn the land transfer. “Serious questions remain here if he prevailed at all,” Aguirre said.

Deputy City Attorney David Karlin said that McElroy is, on the one hand, claiming credit for forcing the federal government to take the land – and at the same time, trying to undo that transaction.

“He wants to have it both ways,” he said.

State law allows attorneys fees to be awarded in legal actions that “resulted in the enforcement of an important right affecting the public interest.” The state Supreme Court has ruled fees can be awarded in instances where the lawsuit was the “catalyst” behind enforcing an important right that affected the public interest.

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He had initially sought $1.4 million in fees, based on the hours he worked plus a “multiplier” the law allows in certain cases. He bills at a rate of $400 per hour.

The two sides tried to settle the fee issue in past weeks, but could not agree. Aguirre declined to say how much the city offered, but said it was “substantial.”