Wednesday, May 31, 2006

Commentary on Selman v. Cobb County

I spent part of the weekend reading the opinion of the 11th Circuit Court of Appeals decision in Selman v. Cobb County. While the Court stated, ". . . we want to make clear that we do not intend to make any implicit rulings on any of the legal issues that arise from the facts once they are found on remand," the 43 page decision gives plenty of information on the Court's position on many key issues in the case, and, by extension, in any other case involving teaching evolution in public schools. It was also good for a few chuckles.

For example, the Court had this to say about the reasoning of the District Court:
The court thought that the board’s decision to have a sticker placed in the textbooks came about because of the letter Marjorie Rogers wrote to the board and the 2,300 name petition it thought that she had submitted to the board. Having outlined the sequence of events in its factfinding and purpose inquiry, the district court specifically relied on the timing of events in concluding that the sticker had the effect of advancing or endorsing religion. Id. at 1308 (stressing the sequence of events).

There is a serious problem with that reasoning. The findings on which it is based are not adequately supported by the evidence in the record before us. The evidence in the record before us does not establish that the Rogers letter was submitted to the board before it adopted the sticker. And the only petition in the record that resembles the one the court described came well after the board’s action. (p. 22; bold added).

So the court is saying that the reasoning that led to the essential holding in the case that the sticker had the effect of advancing or endorsing religion had a serious problem. The district court was dead wrong on the chronology of the critical events in the "sequence of events" on which his holding was based. It is hard to see how the district court can come up with the same holding on remand without looking foolish. If he comes up with the same holding and bases it on different facts, he is likely to look foolish for not mentioning these facts the first time around. Despite their insistence that this is not a reversal, it is hard to see how it is not, in fact, a functional reversal, if only temporary.

On a number of points, the Appeals Court decision is an enormous embarrassment to the district court judge. The error discussed above shows incredible sloppiness on his part. How can you base your holding on two events that allegedly led to the Board's decision, and not realize that those events took place after the Board meeting where the sticker decision was made?

The Appeals Court did not use explicitly insulting language in criticizing the District Court judge, but they did include this in their instructions to the lower court on remand:
Whatever the court decides to do, however, it should take care to ensure that any and all evidence on which it bases any findings is part of the record before it. (p. 34).

Ouch. This is equivalent to telling a professional photographer to remember to take the lens cap off, or telling a race car driver to remember to put fuel in the car.

That is enough for today. I will probably comment more later.

My previous post on this decision is here.


4 Comments:

At June 01, 2006 6:41 AM, Blogger Larry Fafarman said...

You said --

>>>>>The district court was dead wrong on the chronology of the critical events in the "sequence of events" on which his holding was based.<<<<<

Lawrence,

We don't know that for sure -- all we know is that a letter was not found and that the petition that is in the record was submitted after the adoption the stickers -- but it is claimed that there was an earlier petition that was submitted before the adoption of the stickers.

>>>>>If he comes up with the same holding and bases it on different facts, he is likely to look foolish for not mentioning these facts the first time around. <<<<<

One of the main purposes of the remand is to see if more evidence can be found to support the original claims about the letter and a timely petition.

>>>>>On a number of points, the Appeals Court decision is an enormous embarrassment to the district court judge. The error discussed above shows incredible sloppiness on his part.<<<<

I think it was not just the judge's fault -- the defense attorney apparently failed to point out the lack of evidence. The defense attorney has been charged with not mounting a vigorous defense in district court -- see http://www.discovery.org/scripts/viewDB/index.php?command=view&id=2299&program=CSC%20-%20Views%20and%20News&callingPage=discoMainPage

The appeals judges were not required to base their decision on the alleged letter and timely petition just because the district court judge did. But if the appeals judges were inclined to ignore these two items, they possibly did not want people to think that the reason for ignoring these items was that the evidence for the existence of the items was insufficient. Even if the existence of these two items is later proven, the appeals judges could later decide to ignore these items. I argue on my blog that the two items should be ignored even if their existence can be proven.

My blog has the following articles that concern the Selman case --


http://im-from-missouri.blogspot.com/2006/05/what-happened-to-cobb-county-textbook.html

http://im-from-missouri.blogspot.com/2006/05/traipsing-into-breathtaking-inanity-ii.html

http://im-from-missouri.blogspot.com/2006/05/sticker-shock-appeals-court-ducks.html

http://im-from-missouri.blogspot.com/2006/05/close-votes-in-freiler-case-show.html

http://im-from-missouri.blogspot.com/2006/05/disclaimer-sticker-for-selman-v-cobb.html

http://im-from-missouri.blogspot.com/2006/05/aptly-named-lemon-test-sucks.html

 
At June 02, 2006 2:22 PM, Blogger Lawrence Selden said...

Larry, I disagree with your initial comment on whether the judge was wrong on the sequence of events. We do, in fact, know that he was dead wrong about many of the specific facts he cites in his opinion concerning the sequence of events. He makes reference to a specific petition, and the record is clear that that petition came after the board's decision. No other petition is in the record.

If it turns out there was another petition, it does not change the fact that he was dead wrong about the petition to which he makes reference in this opinion. My point was that he was wrong in his facts, based on the trial record.

 
At June 03, 2006 10:20 AM, Anonymous Lawrence Selden said...

This comment has been removed by a blog administrator.

 
At June 03, 2006 9:09 PM, Blogger Larry Fafarman said...

At 2:22 PM, Lawrence Selden said...
>>>>>If it turns out there was another petition, it does not change the fact that he was dead wrong about the petition to which he makes reference in this opinion. My point was that he was wrong in his facts, based on the trial record.<<<<<

Lawrence,
I agree. I am just trying to say that he was not solely responsible -- he presumably expected the attorneys to tell him if there were errors in the trial record. It is hard to understand how this mixup could have happened -- for example, why would a petition supporting the stickers be submitted to the school board several months after the stickers were adopted? That makes no sense at all.

Cobb County's attorney, Ernest Linwood Gunn IV, brought the gaps in the record to the attention of the appeals court, so why didn't he do the same in the district court? Here are four articles concerning the gaps in the record --

http://www.law.com/jsp/article.jsp?id=1134641111572

http://www.law.com/jsp/article.jsp?id=1136384632075

http://www.nsba.org/site/doc_cosa.asp?TRACKID=&VID=50&CID=439&DID=37549

http://www.aclufl.org/news_events/alert_archive/index.cfm?action=viewRelease&emailAlertID=1561

Also, I am totally opposed to this overemphasis on the petition and the letter. What the district court judge essentially ruled was that the school board was barred from adopting the stickers just because a petition and a letter supporting the stickers had allegedly been submitted to the board !

And I am totally opposed to this whole idea of considering motives in the "purpose" prong of the Lemon test. Considering motives means that there are the following two unsatisfactory alternatives where a specific kind of alleged violation of the establishment clause is involved: either (1) the courts must consider motives on a case-by-case basis, leading to a potentially unlimited number of court cases on the same alleged kind of violation, or (2) a single court ruling wholly or partially based on particular motives must be applied to situations where the motives are completely different.

 

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