No. 13-1061 ================================================================ In The Supreme Court of the United States MT. SOLEDAD MEMORIAL ASSOCIATION, Petitioner, v. STEVE TRUNK, et al., Respondents. On Petition For A Writ Of Certiorari Before Judgment To The United States Court Of Appeals For The Ninth Circuit REPLY IN SUPPORT OF PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT KELLY J. SHACKELFORD JEFFREY C. MATEER HIRAM S. SASSER III LIBERTY INSTITUTE 2001 West Plano Parkway, Suite 1600 Plano, Texas 75075 972.941.4444 CHARLES V. BERWANGER GORDON & REES LLP 101 West Broadway, Suite 2000 San Diego, California 92101 619.230.7784 ALLYSON N. HO Counsel of Record BRIAN M. HOM JOHN C. SULLIVAN MORGAN, LEWIS & BOCKIUS LLP 1717 Main Street, Suite 3200 Dallas, Texas 75201 214.466.4000 aho@morganlewis.com Counsel for Petitioner Mt. Soledad Memorial Association ================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM
i TABLE OF CONTENTS Page Reply Brief for Petitioner... 1 Conclusion... 6 CASES TABLE OF AUTHORITIES San Diegans for the Mt. Soledad Nat l War Mem l v. Paulson, 548 U.S. 1301 (Kennedy, Circuit Justice 2006)... 2 Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368 (1949)... 4 OTHER AUTHORITIES U.S. Court of Appeals for the Ninth Circuit, Status of Pending En Banc Cases (Apr. 7, 2014), available at http://cdn.ca9.uscourts.gov/ datastore/enbanc/... 4
1 REPLY BRIEF FOR PETITIONER The government s brief in opposition agrees that [t]he constitutionality of the [Mt.] Soledad Veterans Memorial is unquestionably an issue of great public importance. Opp. 12. It acknowledges that the Ninth Circuit has already ruled that the continued presence of the cross in the Memorial violates the Establishment Clause, and it has denied en banc rehearing of that ruling despite a strong dissent by five judges. Ibid. And it concedes that the only issue the government intends to continue pressing in this litigation is the same one the Ninth Circuit decided in 2011 whether the display of the cross * * * violate[s] the Establishment Clause. Id. at 13 n.4. Nonetheless, the government tepidly opposes certiorari before judgment because (1) the district court issued a stay allowing the cross to remain in place pending an appeal of its final judgment, Opp. 12, and, (2) [a]lthough the Ninth Circuit has previously refused to take this case en banc, it is possible that the district court s entry of final judgment of the additional time for reflection may result in a different outcome this time around. Id. at 13. Neither argument counsels against granting the petition. And, as the government confirms, if the court exercises its discretion and grants a writ of certiorari before judgment, the government will urge the Court to overturn the decisions below. Ibid. The petition should be granted.
2 1. In opposing certiorari before judgment, the government does not question the various grounds set forth in the petition (at 14-18) for granting certiorari before judgment in this case. Instead, the government relies heavily on the district court s stay of its order that the memorial cross must be removed. Opp. 12. But whether a stay is in place is not a factor this Court considers when deciding whether to grant certiorari before judgment (and the government cites no authority or evidence to the contrary). If immediate enforcement were the concern, petitioner would simply be seeking another stay from the Court while the issue worked itself through the lower courts. San Diegans for the Mt. Soledad Nat l War Mem l v. Paulson, 548 U.S. 1301, 1304 (Kennedy, Circuit Justice 2006) (granting stay pending appeal denied by Ninth Circuit and explaining that Congress evident desire to preserve the memorial makes it substantially more likely that four Justices will agree to review the case in the event the Court of Appeals [affirmed removal of the memorial cross] ). The certiorari-before-judgment calculus is different, and the district court s stay is not a sufficient justification for delayed review. Most important, the stay does not diminish the need for certiorari before judgment because it does nothing to ameliorate the other consequences of further delay. While optimistically asserting that awaiting a decision of the Ninth Circuit will cause few collateral consequences, Opp. 13, the government makes no effort to dispute the harmful consequences of further delay identified by petitioner and
3 its amici. See, e.g., Pet. 16 (asserting that [a]s long as the Ninth Circuit s decision stands, it puts into question the legality of hundreds, if not thousands, of veterans memorials across the country and that the specter of the memorial cross being torn down looms large over the Memorial, the City of San Diego, and American veterans of all wars ); Br. of Amici Curiae States 9 ( [D]elaying finality in this case will have significant consequences for other monuments and memorials [and] does a great disservice to our Nation s veterans. ); Br. of Amicus Curiae The American Legion 4 ( The Legion and its members are * * * intensely interested in obtaining timely resolution of this issue, before hundreds of thousands more [World War II and Korean War veterans and their spouses] pass away during a lengthy and almost certainly fruitless Ninth Circuit appellate process. ). The district court s stay does nothing to eliminate any of those consequences of further delaying the finality only this Court can provide. And as the amici States argue (at 13), [i]f ever there was a case deserving finality, this is it. 2. The government opposes certiorari before judgment in the hope that [a]lthough the Ninth Circuit has previously refused to take this case en banc, it is possible that the district court s entry of final judgment or the additional time for reflection may result in a different outcome this time around. Opp. 13. Even in the unlikely event that the government s hope is rewarded, that would only mean that the plaintiffs would be petitioning this Court for review
4 at the end of that appellate process. This Court has granted certiorari before judgment in similar circumstances to avoid further futile proceedings. Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368, 371 (1949); see also Pet. 16. Even if the government is successful in its plan to seek immediate en banc rehearing in the Ninth Circuit, the process is still likely to be lengthy. U.S. Court of Appeals for the Ninth Circuit, Status of Pending En Banc Cases (Apr. 7, 2014), available at http://cdn.ca9.uscourts.gov/datastore/enbanc/ (showing range of five months to almost two years to decide a case en banc once the court issues the rehearing order). And if the government is not successful in bypassing a three-judge panel, the subsequent process will take even longer at least three years or more, if the previous Ninth Circuit proceedings in this case are any guide. The government has represented that although it urged the district court to adopt a remedy for the Establishment Clause violation identified in the court of appeals 2011 decision that would nonetheless allow the cross to remain standing[,] * * * [it] does not intend to continue pressing this argument in the court of appeals. Opp. 13 n.4. That means if the petition for certiorari before judgment is denied, the sole issue before the Ninth Circuit will be one it has already decided and then declined to rehear en banc over a vigorous five-judge dissent. Yet another appeal in the Ninth Circuit would serve little purpose other
5 than delaying a final resolution to this litigation in this Court. Br. of Amici Curiae States 10. Petitioner recognizes that certiorari before judgment is extraordinary. But this is an extraordinary case. Pet. 13-18. And [i]t would be truly unfortunate if a large fraction of the remaining veterans of World War II and the Korean War were to pass away while one of our Nation s leading memorials to them is under an order of judicial demolition. Br. of Amicus Curiae The American Legion 15. One of those veterans, Rear Admiral Jeremiah Denton, who fought in World War II and served eight years as a prisoner of war in Vietnam, participated in the previous Ninth Circuit proceedings as an amicus curiae in support of the Memorial s constitutionality. See Pet. 17 (citing Br. of Amici Curiae Rear Admiral Jeremiah Denton, USN (Ret.), et al., Trunk v. City of San Diego, Nos. 08-56415 & 08-56436 (9th Cir. Feb. 23, 2009)). Admiral Denton passed away last month at the age of 89. This Court should grant the petition for certiorari before judgment and uphold the constitutionality of the Memorial while the remaining members of The Greatest Generation are alive to see it. Brief of Amici Curiae States 15.
6 CONCLUSION The petition for a writ of certiorari before judgment should be granted. Respectfully submitted, KELLY J. SHACKELFORD JEFFREY C. MATEER HIRAM S. SASSER III LIBERTY INSTITUTE 2001 West Plano Parkway, Suite 1600 Plano, Texas 75075 972.941.4444 CHARLES V. BERWANGER GORDON & REES LLP 101 West Broadway, Suite 2000 San Diego, California 92101 619.230.7784 ALLYSON N. HO Counsel of Record BRIAN M. HOM JOHN C. SULLIVAN MORGAN, LEWIS & BOCKIUS LLP 1717 Main Street, Suite 3200 Dallas, Texas 75201 214.466.4000 aho@morganlewis.com Counsel for Petitioner Mt. Soledad Memorial Association