ACLU Attempted Harassment over Mt. Soledad Case

On September 13, US Magistrate Judge William McCurine Jr. granted a motion by the Thomas More Law Center to quash the ACLU's subpoena to depose Charles S. LiMandri, a practicing San Diego attorney and the Law Center's West Coast Regional Director, regarding his involvement in the Mt. Soledad Veterans Memorial case.

The ACLU represents the Jewish War Veterans of America and several individual plaintiffs in a federal lawsuit filed last year challenging the statute by which the United States took possession of the Mt. Soledad Veterans Memorial from the City of San Diego, as well as the display of a cross as the centerpiece of that Memorial.

LiMandri had advised San Diego area Rep. Duncan Hunter and other members of Congress regarding the federal legislation and also had represented a grassroots group of San Diego residents who promoted a successful ballot measure requiring the City to donate the Veterans Memorial to the United States. (The federal legislation affected a taking of the property while a court order invalidating the ballot measure as unconstitutional was on appeal. The appellate court reinstated the ballot measure.) On behalf of the Law Center, LiMandri also had submitted several "friend of the court" briefs in a prior federal lawsuit challenging the presence of the memorial cross on City parkland.

In quashing the deposition subpoena, Judge McCurine, a Harvard Law School graduate and former Rhodes scholar, found that any attempt to glean the "motivations" of members of Congress in advancing legislation regarding the Mt. Soledad Veterans Memorial would violate the "Speech and Debate Clause" of the US Constitution, which protects speech and other activities undertaken by members of Congress acting within a legitimate legislative sphere. The judge said, "[I]t is clear to this Court that permitting the deposition of Mr. LiMandri 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."

Judge McCurine had previously denied the ACLU's request to depose Rep. Hunter on the basis of the Speech and Debate Clause, noting that Rep. Hunter's motives in sponsoring the Mt. Soledad Veterans Memorial legislation were irrelevant to the issue of the constitutionality of that law.

Judge McCurine also found that the ACLU's proposed deposition of LiMandri would invade the attorney-client privilege and, to the extent any non-privileged information was sought, would be unreasonably duplicative of other available evidence and unduly burdensome on LiMandri. LiMandri stated: "As Judge McCurine pointed out in his order, the ACLU was just trying to do an end-run around his refusal to let them depose Rep. Hunter. Trying to depose me perfectly fits the ACLU's usual modus operandi of intimidation and harassment. This time it backfired."

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