Sunday, March 23, 2008
Go %$#! Yourself, San Diego: Court Finds "Relevant" Means Different Things Under FRCP, FRE in Mt. Soledad (Easter) Cross Case
The current Mt. Soledad cross in San Diego was constructed by the Mt. Soledad Memorial Association and was dedicated to the veterans of World Wars I and II and the Korean War on Easter Sunday in 1954. Since that time, the cross has been the setting for annual Easter Sunday services, as well as weddings and baptisms. At least one local map formerly referred to the location as the Mt. Soledad Easter Cross.
The cross has led to a myriad of legal challenges under the First Amendment Establishment Clause and the California Constitution "No Preference" Clause. Eventually, the California district judge who had overseen seventeen years of federal litigation on the cross entered an order in May of 2006 enforcing a permanent injunction, such that the City of San Diego had to remove the cross from public land within ninety days or face fines of $5,000 per day. After the Ninth Circuit denied a request for a stay, the City sought relief in the U.S. Supreme Court, which, granted the stay.
Rather than allowing the courts to decide the issue, within a week of the district court's order, Congressman Duncan Hunter (yes, the guy you kept seeing at the bottom of the Republican primary result tallies) asked President Bush to invoke the authority conferred by a federal statute, 40 U.S.C. Section 3113, to take immediate possession of the Mt. Soleded Cross. Subsequently, in late June of 2006, Hunter introduced a bill designed to transfer the Mt. Soledad Veterans Memorial to federal control effective immediately. The bill passed both houses of Congress by early August of 2006, and the President signed it into law on August 14, 2006.
The Jewish War Veterans of the United States of America (JWV) thereafter filed a complaint challenging the Act and the presence of the cross on public land. During discovery, JWV served subpoenas on several individuals including Hunter, seeking nine categories of data, and the parties quibbled about whether all of the categories of data were relevant and/or protected by the Speech and Debate Clause. In considering this dispute in Jewish War Veterans of the United States of America v. Gates, 506 F.Supp.2d 30 (D.D.C. 2007), the District Court for the District of Columbia noted that under Federal Rule of Civil Procedure 26(b)(1), litigants "may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party...." (emphasis added).
The court then noted that under the Rule, "[i]nformation sought may be 'relevant' even if it is not admissible at the merits stage, so long as 'the discovery appears reasonably calculated to lead to the discovery of admissible evidence.'" According to the court, put differently, "a party may discover information which is not admissible at trial if such information will have some probable effect on the organization and presentation of the moving party's case." The court then cited to several cases for the proposition that "[t]he term 'relevant' thus has a different meaning-and a broader scope-under Federal Rule of Civil Procedure 26(b)(1) than it does under Rule 401 of the Federal Rules of Evidence.
In my mind, this holding makes no sense, and in looking at the cases cited by the court, I think I can see where courts went wrong. In looking at these cases, the first case I found using similar language was Hofer v. Mack Trucks, Inc., 981 F.2d 377 (8th Cir. 1992). In that case, the Eighth Circuit opined that "the standard of relevance in the context of discovery is broader than in the context of admissibility." The problem with the D.C. Court's opinion, however, is that Federal Rule of Evidence 401 is not a rule of admissibility. Instead, Rule 401 is merely definitional: It defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."
Federal Rule of Evidence 402 indicates, inter alia, that "relevant" evidence can still be inadmissible as "provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority." Thus, even "relevant" evidence must typically pass the balancing test imposed by Federal Rule of Evidence 403, which indicates that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." And while, inter alia, character evidence, hearsay testimony, and conviction evidence are usually "relevant" under Rule 401, they are frequently deemed inadmissible under Rules such as Rule 404, Rule 802, and Rule 609, respectively. Thus, courts such as the D.C. court in JWV have failed to provide a satisfactory reason for treating the term "relevant" disparately in these two contexts, and they should either eliminate the dichotomy or provide sensical reasons for their distinctions.
Finally, while I am not a Constitutional law scholar, in looking through the facts of the JWV case, it seems clear to me that the placement of the cross is unconstitutional, and it seems reprehensible to me that the City of San Diego, Hunter, and others transferred possession of the cross to the federal government after the district court had ruled against them. It will certainly be interesting to see how how things shake out when the dispute is finally resolved.