Judge ends legal fight against Mt. Soledad Cross
Denying a discovery-related motion, a federal judge has 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.
Escondido attorney receives mild discipline after ineffective counsel complaint
Escondido attorney Kevin Alan Bove received “discipline on the low-end of that prescribed” after an ineffective counsel complaint filed against him over his handling of an 11-year-old immigration case, according to a recent California State Bar filing.
Bove faces two years’ probation, beginning with 30 days of suspension, according to the decision filed June 29 by the state bar. The bar’s office of chief trial counsel had recommended 60 days suspension while Bove argued for dismissal, according to the decision.
Bove was found culpable on one of two counts of misconduct, including attempts to mislead and making a misrepresentation to a judge, according to the decision.
Bove was admitted to the bar in California on Dec. 5, 1990, according to his profile at the state bar website.
During his first year practicing in California, Bove represented a client who was fighting deportation in 1998. Three years later, the client was deported to Mexico.
In late 2013, the client hired another attorney to file a motion to reopen the immigration case alleging that Bove’s counsel have been ineffective, commonly referred to as a “Lozada motion“. The motion was filed July 1, 2014, according to the decision. In an email exchange shortly after, Bove told the other attorney he denied the “allegation of ineffective assistance of counsel”.
A complaint letter dated March 15, 2014, was mailed the following July 7, according to the decision. Bove filed a response but did not inform the other attorney he’d done so and in such a way that implied the other attorney had filed it, according to the decision.
The following October, the Board of Immigration Appeals denied the other attorney’s motion to reopen the case and on Jan. 27, 2015, it denied a motion for reconsideration, according to the decision. In the interim, the other attorney found out about Bove’s filed response and realized “they were denied the opportunity to file a reply to the response before the BIA ruled on the motion to reopen,” the decision said.
The office of chief trial counsel concluded there was no evidence to prove that Bove’s actions impacted the BIA’s decision, according to the state bar’s decision.
Bove had no prior record of discipline.