Sunday, September 16, 2007

Another Interesting Installment In the Mt. Soledad Cross Litigation

Last week, yet another court decision in the litigation over the Mt. Soledad, California cross and memorial was handed down. In April, a California federal district judge held that plaintiffs challenging the constitutionality of the legislation authorizing the United States to acquire the Mount Soledad Veterans Memorial could not depose Congressman Duncan Hunter about his motivation in supporting the legislation. In reaching this conclusion, the court relied heavily on the Constitution's "speech or debate" clause. (See prior posting.) So plaintiffs then tried a different route. They sought to depose Charles Li Mandri, who is West Coast Regional Director of the Thomas More Law Center. Li Mandri was an advisor to Rep. Hunter on issues related to the Mt. Soledad cross, even though he was not on Hunter's staff.

In Trunk v. City of San Diego, 2007 U.S. Dist. LEXIS 67766 (SD CA, Sept. 13, 2007), the California federal district court quashed the subpoena and issued a protective order to LiMandri. It held that questioning LiMandri would intrude into matters protected by the "speech or debate" clause and would "produce a harmful chilling effect on the right of federal legislators to gather information and consult with paid or non-paid advisors with regard to prospective legislative activities and decisions."

A second ground for quashing the subpoena is perhaps the most interesting. The court said that the Lemon test for determining whether there has been an Establishment Clause violation looks at whether an informed objective observer would perceive that the government has endorsed religion by its challenged action. However, "Mr. LiMandri does not fit the mold of an objective observer. Any testimony Mr. LiMandri may therefore have regarding his observations of the memorial are unhelpful and irrelevant to the Lemon test's effect prong." Finally the court relied on the attorney-client privilege as well as a basis for its conclusion that LiMandri should not be forced to testify.