Another Judge’s Cross to Bear

Monday, Sept. 11, 2006 | Imagine having the weight of a 20-ton cross thrust upon your shoulders.

Make that the infamous Mount Soledad Cross – the source of nearly two decades worth of controversy and legal wrangling – and that load may suddenly get a lot heavier.

For U.S. District Court Judge Barry Ted Moskowitz, 56, bearing that burden is as much the result of a random judicial assignment process as it is a fact of life.

Next week, Moskowitz, who has more than 20 years of experience on the federal bench, is scheduled to hear procedural arguments in at least one, and possibly two, cases contending that the presence of the religious symbol on federal government property violates the U.S. Constitution.

One cross proponent recently said he thinks Moskowitz, who is Jewish, may be swayed by the inclusion of a Jewish veterans group as the plaintiff in one of those cases.

But those who know Moskowitz, and some of those who have tried cases in his courtroom, say that the judge is an extremely thoughtful and thorough jurist – sometimes to a fault – who won’t let his or anyone else’s personal beliefs stand in the way of a fair verdict. Moreover, they say his penchant for detailed legal analysis means that any ruling he eventually hands down is likely to withstand the most severe legal scrutiny.

That scrutiny is virtually guaranteed in this case, as any decisions Moskowitz makes will almost certainly be appealed. Many believe the matter will eventually be settled by the U.S. Supreme Court.

“I would bet you that whatever his decision is, it will stand,” said John Kirby, a former federal prosecutor who has tried cases before Moskowitz.

Too Jewish for the Cross?

In an interview last month, Charles LiMandri, the chief counsel for San Diegans for the Mount Soledad National War Memorial, a group that advocates keeping the cross where it is, said he fears Moskowitz’ religious beliefs may influence his decision.

LiMandri, who is also a representative of the Thomas More Law Center, a conservative Christian group, was reacting to a suit filed by the American Civil Liberties Union, which named the Jewish War Veterans, a national group, as one of the plaintiffs.

The ACLU’s case is expected to be consolidated with a suit filed by Philip Paulson, the atheist and Vietnam War Veteran, who has spearheaded the 17-year battle to have the cross removed from government land with the help of his attorney James McElroy. In this most recent suit, Paulson is challenging the constitutionality of the transfer of the ownership of the cross and surrounding war memorial from the city to the federal government as well as the continued presence of the religious symbol on government land.

Last month, Moskowitz denied McElroy’s request that he intervene and thwart the transfer and, despite LiMandri’s concerns, there’s little evidence to suggest that the judge has strong religious leanings that will impact a case.

Citing a policy of not commenting to the media, Moskowitz declined through a member of his staff to be interviewed or photographed for this article. Like many federal judges, Moskowitz keeps a low profile. He isn’t actively engaged in the local Jewish community, according to several people who know him or are prominent local Jews.

Rabbi Paul Citrin, the spiritual leader of La Jolla’s Congregation Beth Israel, said Moskowitz was once a part of his congregation but is no longer a member. (Only those who pay dues are considered members of the synagogue.)

“As far as I know he hasn’t been particularly involved in the Jewish community,” said Donald Harrison, a journalist and columnist for the San Diego Jewish Times, and a former co-publisher of Jewish Heritage, a local religious periodical.

Other than his former status with Beth Israel, the only other religious connections in his life appear to be his involvement with the synagogue’s weekly outreach efforts in the East Village.

Joan Kutner, the former director of Beth Israel’s hunger project, which provides weekly meals to needy individuals at downtown shelter, said Moskowitz has helped serve patrons there regularly for more than a decade. Kutner, who also called Moskowitz a personal friend, characterized his work as nonreligious and said she doesn’t believe the judge’s personal beliefs will impact his legal ruling.

“If all federal judges were of the quality of this man, I think this country would be in a much better position because I know him to be a truly intelligent, ethical individual,” Kutner said.

Although he doesn’t know Moskowitz personally, Harrison said he takes offense to LiMandri’s comment.

“Whenever there is a controversial case, opponents of the ruling will criticize the judge if he is Jewish for not being able to set aside his religion but it’s never the case if he’s a Christian,” Harrison said. “Whoever makes that statement just smacks of prejudice.”

Harrison, who has been a vocal supporter of efforts to remove the cross from Mount Soledad, said that no one mentioned the judge’s religion in 1991 when U.S. District Court Judge Gordon Thompson Jr. ruled that the presence of the cross on city property violated the California Constitution.

Thompson, who is a Presbyterian, has since been derided by Rep. Duncan Hunter, R-El Cajon, who drafted the legislation that transferred the cross to the federal government, and other cross supporters as a liberal and activist judge.

‘Midnight Moskowitz’

Several attorneys who have tried cases in Moskowitz’ courtroom said they doubt his personal religious beliefs will come into play.

“All I can tell you is that more than any other judge I have worked with, he sets aside whatever his own thoughts or emotional take may be,” said Kirby, the former assistant U.S. attorney.

John Gomez, another former federal prosecutor who’s now in private practice, said Moskowitz is perfect for the Soledad Cross assignment.

“He’ll call it straight,” Gomez said. “He’s not going to go with some agenda. He’s a jurist of the purest kind that you can find.”

A graduate of Rutgers University School of Law, Moskowitz started his law career in 1976 as an assistant U.S. attorney in New Jersey, according to a profile compiled by the Federal Judicial Center, the education and research arm of the federal courts.

He worked a brief stint in private practice in the mid 1980s before moving to San Diego, where he served as an assistant U.S. attorney specializing in asset forfeitures. In 1986, Moskowitz was appointed as a U.S magistrate judge and, after nearly a decade on the junior bench, he was nominated to his current position by President Bill Clinton in 1995.

While the vast majority of cases in the local federal courts are criminal and related to drugs or immigration, a wide variety of civil cases are also heard.

One of Moskowitz’ most recent high profile civil rulings impacted the 2003 California gubernatorial recall of Gray Davis. In that case, the judge tossed a state law requiring voters to vote “yes” or “no” in the recall election if they wanted their votes counted on the second question on the recall ballot – the contest for Davis’ potential replacement.

Last year Moskowitz dismissed a challenge to a federal requirement that hospitals and doctors make translators available to patients who have difficulty understanding English. He also barred the county from enforcing codes restricting where communication infrastructure, like cell phone towers, can be located in unincorporated parts of the county, noting that federal law preempted those rules.

Mary M. Schroeder, chief judge of the Ninth Circuit Court of Appeals, the court that typically reviews appeals of Moskowitz’ rulings, declined to comment for this article and Moskowitz’ immediate superior, U.S. District Court Judge Irma Gonzalez, didn’t respond to calls.

But Kirby, Gomez and other attorneys interviewed describe Moskowitz as one of the brightest minds on the local federal bench who is as even handed as he is even tempered.

They say he’s more thorough than other judges, revels in dissecting complex legal arguments and bends over backward to be fair.

Those are unsurprisingly syrupy comments considering they’re from individuals who could be arguing cases before Moskowitz in the near future. Yet given the chance to anonymously air gripes against Moskowitz, the attorneys’ comments are the same as they are on the record.

If there’s a criticism of him it’s that he sometimes spends too much time doing legal analysis than impatient attorneys may think is appropriate, said William Caldarelli, a local attorney who has argued in front of Moskowitz.

Known for dragging out hearings late into the evenings, the judge has earned himself the nickname of “Midnight Moskowitz.”

John Lanahan, a former federal public defender now in private practice, has rewritten the lyrics from “Tonight” from “West Side Story” and “The Man who Shot Liberty Valance” as musical tributes to Moskowitz chronic time mismanagement. Lanahan even had a pizza delivered to Moskowitz’ courtroom when a colleague was stuck in a hearing at 6 p.m. on a Friday night.

“I thought, ‘This is ridiculous,’” Lanahan said. “If she’s going to get stuck she might as well get fed.”

While some attorneys anonymously say Moskowitz is “overly pondering,” “prone to overcomplicate rulings” and “indecisive,” his meticulous decisions have also earned him the confidence and respect of others.

“He gets into the (legal) papers,” Gomez said. “He reads the whole darn motion and understands the issues.”

And so what if he takes his time?

“Judge Moskowitz doesn’t succumb to being rushed,” Caldarelli said. “He’s doing what he’s needs to do to get the ruling right. Frankly that’s a sign that he’s doing his job.”

For Moskowitz, it’s a job that’s about to put him at the axis of the Mount Soledad Cross’ controversies and legal complexities, something that will likely mean many more late nights ahead.

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