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Jewish War Veterans v. City of San Diego (9th Cir. - Jan. 4, 2011)

By Shaun Martin

There are about a million opinions about the constitutionality of the Mt. Soledad Cross in San Diego.  I don't just mean in the minds of the many people who know about this litigation.  There are also, like, a million actual opinions.  The case has gone on for over twenty years.  There's a federal district court opinion in 1989.  A Ninth Circuit opinion in 1993.  Both of which held the cross unconstitutional.  Then there was another district court opinion in 1997, after the City "gave the cross away" in an effort to circumvent the district court's decision.  Then more opinions, ultimately resulting in a 2002 Ninth Circuit en banc decision that invalidated yet another purported sale as unconstitutional.  Then passage of federal legislation that allowed the City to give the Cross to the federal government (signed by President Bush), victory for a City referendum that elected to do so, and more opinions -- another district court opinion in 2006 telling the City to take the Cross down, a denial of a stay by the Ninth Circuit, and just when you thought the litigationwas finally concluded, Justice Kennedy came in and granted a stay, keeping everything going.  Then passage of more federal legislation, this time "seizing" the Cross by eminent domain, again designed to get around the district court and Ninth Circuit's decisions.  Then more litigation, and a district court opinion in 2008, this time holding that the Cross was actually constitutional.

Which ultimately leads to this opinion, issued as we usher in 2011.  Holding the Cross again unconstitutional.

The opinion, written by Judge McKeown, is really well done.  Which is saying a lot, because there are a lot of other opinions to compare this one to.  It's moderate, balanced and nuanced.  It centers on factual analysis and attempts to find consensus.  It is far from polemic, and is clearly an attempt both to get people on board as well as to insulate the opinion from further review.  Since you know there's going to be an en banc call, as well as a petition for certiorari.  Both of which have non-trivial chances of succeeding.  (Though I think the latter, given Justice Kennedy, has a higher likelihood than the former.)  Hence the opinion's repeated statements that its analysis is limiting to the particular facts and particular cross here; we're not striking down crosses in cemetaries, we're not striking down all crosses, etc.  This is an effort not only to find common ground in a tough factual as well as doctrinal setting, but also a practical attempt (IMHO) to make sure that all this hard work isn't swept away by a higher court.

I'll let you read the opinion for yourself, which (again) is very good, and I recommend.  Just a few tangential points.

First, the timing's sort of cool, eh?  Ring in a New Year with yet another opinion on the Cross.  22 years and counting.  Plus, given that the oral argument was over a year ago, I'm quite confident that the opinion -- which undoubtedly took a long time to write, since it's a high-profile case and you want to do a good job -- was ready to go, say, 20 days ago.  But no way you're going to issue this one right before Christmas.  Wait 'til the holidays are over, people are back at work, and the new year is here.  Then publish the thing.

Second, this is a Judge McKeown opinion.  Which says many things, some of which I've referred to obliquely above (and others I'll leave unsaid).  But in this particular context, let me add one unusual point.  Judge McKeown is not, uh, entirely ignorant of the presence of the Cross, which stands prominently over La Jolla.  If only because, well, she just so happens to live there.  An interesting tidbit not only in the abstract, but also because it totally shows.  There's stuff in her opinion -- relevant stuff, no less -- about the history of anti-Semitism in La Jolla.  Even I didn't know that stuff, and I've been here for 15 years.  And the citation to the American Jewish History article about housing discrimination in La Jolla?!  Awesome.  Loved it.  Couldn't be more impressed.  You can have arguments pro and con about whether you want your judges to actually know something about the factual underpinnings of a case.  But here's a great example of a judge's particular knowledge being indisputably useful.  It's an interesting aspect of various larger recusal-related debates.  This one, in my view, falling heavily on one particular side.

Finally, I understand why Judge McKeown ends the opinion as she does -- with a penultimate paragraph that essentially says:  "We're not necessarily saying the Cross has to come down."  Seriously, I do.  It's doctrinally correct (who knows what the future will bring?), it's part and parcel of the deliberately moderate tone, it helps to try to insulate the case from review, etc.

But when you've got a litigation that's gone on for over two decades, it's sort of a bummer of a way to end a great opinion.  To essentially say:  "Our Ruling In Round 13 is:  Bring On Round 14."  Couldn't think of a better way to spend yet another decade.

Still, I give this one two thumb's up.  And await, with bated breath, the inevitable next moves.

Full post as published by California Appellate Report on January 04, 2011 (boomark / email).