Jewish War Vets. of the U.S. of America v. Gates

• Decision Date: 18 September 2007
• Docket Number: Misc. No. 07-221.,Misc. No. 07-220.,Misc. No. 07-222(JDB).
• Citation: 506 F.Supp.2d 30
• Parties: JEWISH WAR VETERANS OF THE UNITED STATES OF AMERICA, INC., et al., Plaintiffs, v. Robert M. GATES, Secretary of Defense, in his official capacity, Defendant.
• Court: U.S. District Court — District of Columbia

506 F.Supp.2d 30

JEWISH WAR VETERANS OF THE UNITED STATES OF AMERICA, INC., et al., Plaintiffs, v. Robert M. GATES, Secretary of Defense, in his official capacity, Defendant.

Misc. No. 07-220.

Misc. No. 07-221.

Misc. No. 07-222(JDB).

United States District Court, District of Columbia.

September 18, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Jonathan H. Siegelbaum, Wilmer Hale, Washington, DC, for Plaintiffs.

Jennifer Allaire, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

BATES, District Judge.

A large, concrete Latin cross has stood atop Mt. Soledad in San Diego, California for over fifty years. For almost the last twenty of those years, the cross and the veterans memorial of which it is now a part have been the subject of extensive litigation in the federal and state courts, as well as numerous legislative initiatives by local officials. Those legislative efforts shifted to the federal level in 2004, culminating in legislation through which the United States government first designated the Mt. Soledad Veterans Memorial as a national memorial honoring members of the U.S. Armed Forces, and then later acquired the Memorial. See Consolidated Appropriations Act, 2005, Pub.L. No. 108-447, Div. J., Title I, § 116, 118 Stat. 2809, 3346 (Dec. 8, 2004); Mt. Soledad Veterans Memorial Acquisition Act, Pub.L. No. 109-272, 120 Stat. 770 (Aug. 14, 2006) (hereinafter "the Act"). Immediately after the Act was signed into law, the Jewish War Veterans of the United States of America, Inc. ("JWV") filed suit in federal district court in California challenging under the Establishment Clause of the First Amendment both the Act and the display of the cross by the Secretary of Defense ("the Secretary"), under whose control Congress placed the Memorial. Pub.L. No. 109-272, § 2(c), 120 Stat. at 771.

As part of their discovery efforts in that challenge, JWV served subpoenas on the Office of General Counsel of the House of Representatives seeking nine categories of documents in the possession or control of United States Representatives Duncan Hunter, Brian Bilbray, and Darrell Issa, the three southern California Congressmen who had sponsored the Act. All three Congressmen (collectively "the Members") lodged objections to the subpoenas, contending primarily that the documents requested were irrelevant to the JWV plaintiffs' Establishment Clause claims and that some of the production sought was barred by the Speech or Debate Clause of the Constitution, U.S. Const. art. I, § 6, cl. 1. Following unsuccessful attempts to resolve the dispute, JWV filed in this court motions to compel each of the Members to produce the requested documents. The Members, joined by the Secretary (who is the named defendant in the California litigation), oppose the motions, a hearing on which was held on July 31, 2007. After careful consideration of the pre- and posthearing filings, and for the reasons set forth below, the Court will grant in part and deny in part JWV's motions to compel.

BACKGROUND

A. History of the Mt. Soledad Litigation and Legislation

The history of the Mt. Soledad cross dates to 1916 and has been recounted in the various judicial opinions resolving legal challenges to the cross. See, e.g., Paulson v. City of San Diego, 294 F.3d 1124, 1125-27 (9th Cir.2002) (en banc); Ellis v. City of La Mesa, 990 F.2d 1518, 1521-22 (9th Cir. 1993); Paulson v. Abdelnour, 145 Cal. App.4th 400, 51 Cal.Rptr.3d 575, 580-85 (2006). A truncated account of the relevant events since 1952, and particularly the events that have occurred during the course of the recent litigation, will suffice for present purposes. The current concrete cross was constructed by the Mt. Soledad Memorial Association ("MSMA") and was dedicated to the veterans of World Wars I and II and the Korean War on Easter Sunday in 1954. Since that time, the cross has been the setting for annual Easter Sunday services, as well as weddings and baptisms. At least one local map formerly referred to the location as the Mt. Soledad Easter Cross. JWV Mem. in Support of Mot. to Compel ("JWV Mem."), Exh. A (2006 Calif. Compl.) ¶¶ 7-19.

Things began to change in 1989 when a private citizen sued the City of San Diego in federal court, alleging that the cross's presence on city property violated the First Amendment to the U.S. Constitution and the "No Preference" Clause of the California Constitution. While the suit was pending, the MSMA installed a marker identifying the location as a veterans memorial, and later altered the existing structure by installing a large American flag, adding bollards that honor community and veterans groups, and erecting six concentric walls that hold approximately 1,800 plaques engraved with the names arid photographs of individual veterans. JWV Mem. at 3; Id., Exh. A at ¶ 20. These changes did not, however, stave off adverse legal rulings. The district court in 1991 held that the display of the cross on public land violated the California Constitution and ordered the cross removed. Murphy v. Bilbray, 782 F.Supp. 1420, 1438 (S.D.Cal.1991). On appeal, the Ninth Circuit affirmed, describing the cross as "[a] sectarian war memorial [that] carries an inherently religious message and creates an appearance of honoring only those servicemen of that particular religion." Ellis, 990 F.2d at 1518. The City responded by attempting to sell the land under the cross to the MSMA. This effort was the first of what turned out to be multiple maneuvers designed to cure the constitutional infirmity while retaining the Mt. Soledad cross. The effort failed, however, when the district court invalidated the sale as directed at preserving a religious symbol and thus impermissibly showing a government preference for religion. Murphy v. Bilbray, Civ. A. Nos. 90-134, 89-820, 1997 WL 754604, at *10 (S.D.Cal. Sept. 18, 1997). A second attempt to sell the land to the MSMA was struck down by the en banc Ninth Circuit on similar grounds in 2002. Paulson, 294 F.3d at 1132-33.

Following these legal setbacks, the City in late 2004 came close to entering into a settlement agreement pursuant to which the cross would be moved to a nearby church and would be replaced at the Mt. Soledad Veterans Memorial with a nonsectarian symbol. Veterans groups and the MSMA supported the proposed settlement, and voters rejected a ballot initiative that would have allowed the City once again to sell the land containing the cross to a private party. Nevertheless, the City never officially entered into the agreement. JWV Mem., Exh. A ¶ 31. During the same period, groups that supported the display of the cross on public land began to seek federal intervention. The Thomas More Law Center ("TMLC") sent a letter to Congressman Randy "Duke" Cunningham the week after the unsuccessful ballot initiative. In that letter, the TMLC requested that Congressman Cunningham secure federal legislation declaring the Mt. Soledad cross a national war memorial. Id. ¶ 35. Cunningham attempted to do so less than a month later when he attached to an omnibus appropriations bill a rider that (1) designated the Mt. Soledad Veterans Memorial as a national war memorial, (2) authorized the Department of Interior to accept the Memorial as a donation from the City, and (3) directed the National Park Service to enter into a memorandum of understanding with the MSMA for maintaining and administering the Memorial. Consolidated Appropriations Act, 2005, Pub.L. No. 108-447, Div. J., Title I, § 116, 118 Stat. 2809, 3346 (Dec. 8, 2004) (codified at 16 U.S.C. § 431 note).

The federal legislation placed the matter back in the hands of the City, which had to decide whether to donate the cross to the U.S. government. After initially voting against donation in March of 2005, the City Council decided to put the issue to a public referendum, known as "Proposition A." JWV Mem., Exh. A ¶¶ 40-44. Proposition A passed at a special election held in July of 2005. Id. ¶ 44. In October of that year, however, a California state court struck down the referendum as unconstitutional under the California Constitution, Id. ¶ 48.

While the expedited appeal of that ruling was pending, activity shifted once again to federal fora. The California district judge who had overseen the seventeen years of federal litigation entered an order in May of 2006 enforcing the original permanent injunction, such that the City had to remove the cross from public land within ninety days or face fines of $5,000 per day. Id. ¶ 50. After the Ninth Circuit denied a request for a stay, the City sought relief in the U.S. Supreme Court. Justice Kennedy, acting as Circuit Justice, granted the stay. San Diegans For the Mt. Soledad Nat'l War Mem'l v. Paulson, 548 U.S. ___, 126 S.Ct. 2856, 165 L.Ed.2d 941 (2006) (Kennedy, J., in chambers). He reasoned that "Congress' evident desire to preserve the memorial" (as expressed in the 2004 legislation), along with a pending state-court appeal that could validate the transfer outright or at least "provide important guidance regarding" issues of California law, tilted the balance toward maintaining the status quo. Id. at 2857-58. As it turns out, the California Court of Appeal in late 2006 reversed the trial court ruling that had invalidated the voter-approved transfer. Paulson v. Abdelnour, 145 Cal. App.4th 400, 51 Cal.Rptr.3d 575, 580 (2006).

San Diego-area Congressmen did not, however, await the federal or state court decisions before taking action of their own. Within a week of the district court's order, Congressman Duncan Hunter (Congressman Cunningham had resigned his seat by that time) asked President Bush to invoke the authority conferred by a federal statute, 40 U.S.C. § 3113, to take immediate possession of the Mt. Soledad Cross. JWV Mem., Exh. A ¶¶ 53. Then in late June of 2006, Hunter introduced H.R. 5683, a bill designed to transfer the Mt. Soledad Veterans Memorial to federal control effective...