Judge Ends Legal Fight Against Veterans Memorial Cross

WASHINGTON (CN) – Denying a discovery-related motion, a federal judge on Friday put to rest once and for all a decades-long legal battle over the display of a 43-foot-tall Latin cross that will remain at the Mt. Soledad Veterans Memorial in San Diego.

In what U.S. District Judge John D. Bates called a “last gasp,” Republican U.S. Reps. Darrell Issa, Brian Bilbray and Duncan Hunter of California – who had successfully pushed for the federal government to take possession of the half-acre parcel of land housing the memorial in 2006 – asked the court to vacate a now-moot discovery order.

The Jewish War Veterans of the United States of America, represented by the American Civil Liberties Union, sued the federal government in 2006, challenging the display of the 43-foot cross on federally owned land.

As part of that legal challenge, the Jewish War Veterans had subpoenaed documents from the three lawmakers in 2007, which they objected to on the basis that at least some of the documents were protected. The discovery motion was granted in part.

A federal judge ruled in 2008 that the cross could remain and tossed out the underlying lawsuit.

However, Issa, Bilbray and Hunter still asked the court to vacate the discovery order to avoid getting dragged into a future discovery dispute in which they “might arguably be collaterally estopped from relitigating the issues that they attempted to raise on appeal,” according to court records.

Nearly a decade later, Judge Bates denied the lawmakers’ motion on Friday, declaring the issue settled.

“It is plainly and completely over. There can therefore be no more discovery in this or related litigation,” the eight-page ruling states. “Thus, the Representatives cannot be harmed by the preclusive effect of this Court’s prior opinion, because there is none.”

Bates called vacatur an “extraordinary remedy” and said the balance of equities do not weigh in favor of such a remedy.

“To vacate an opinion simply because of its precedential effect, when it has no preclusive effect, would deny the ‘legal community as a whole’ of the value of judicial opinions, and treat such opinions as ‘merely the property of private litigants,’” the opinion states.

In 2011, the Ninth Circuit reversed the 2008 district court ruling and found that the cross was unconstitutional.

The U.S. Supreme Court twice refused to take up the issue, and upon remand to a federal court in San Diego, a judge ruled again in 2013 that the cross violated the First Amendment’s Establishment Clause.

U.S. District Judge Larry Alan Burns ordered the cross removed within 90 days, reasoning that it favored one religious group over another. However, the order was stayed pending appeals.

To circumvent the constitutional issue, the federal government sold the land for $1.4 million to the Mount Soledad Memorial Association in 2015 as part of the National Defense Authorization Act.

The association had managed the Mt. Soledad Veteran’s Memorial since the cross was erected in 1954.

The sale of the land in 2015 rendered the underlying legal challenge moot.

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