The 10th U.S. Circuit Court of Appeals on March 14, 2008, issued a 3-0 decision against reinstating a lawsuit by David Habecker challenging his recall from public office in Estes Park, Colo., because he did not recite the religious Pledge of Allegiance. The case was thrown out of court in 2006 on standing, with the judge declaring it moot since Habecker had been removed from office. The Freedom From Religion Foundation was a plaintiff at the district court level, but was not named in the appeal.
The Foundation awarded Foundation member Dave Habecker its “Freethought Hero” award in 2005.
Robert R. Tiernan, the attorney and a Foundation member, gives his reaction:
Robert R. Tiernan
Photo by Brent Nicastro |
By Robert R. Tiernan
Finally, more than three years after the suit was first filed, the Tenth Circuit US Court of Appeals has rendered its decision in the David Habecker case. Ironically, it ruled that Habecker lacked standing to challenge his removal from office for refusing to recite the Pledge of Allegiance because, during the pendency of the case, his term of office expired. The Court totally ignored the underlying premise of the case, which was that Habecker was injured precisely because he exercised his constitutional right to refrain from stating his allegiance to a divinity.
This is a terrible decision on a host of fronts. In the first place, the trial court allowed the case to languish far too long and then had the audacity to use that to defeat Habecker’s claim. The complaint was filed in January 2005, at which time a preliminary injunction was first granted and later denied. No trial was ever held and, in fact, only one deposition was taken. Motions for summary judgment were filed by the parties in July 2005, and the trial court did not rule on those motions until the end of September 2006, even though it knew that Habecker’s term office was scheduled to expire in April 2006. So, having sat on the case for more than a year, the Court proceeded to rule that it was moot because there was no way it could reinstate Habecker in office.
Reinstatement in office was only one of the remedies asserted by Habecker. He also asked for damages equal to the amount of pay he forfeited by being improperly recalled and, more important, he also requested the Court to declare the Pledge of Allegiance (which is still being recited during town meetings) unconstitutional. Both of these issues remained alive throughout the judicial process.
The Court also said that one of Habecker’s arguments could not be entertained because it was brought forth too late. This is absurd. The argument in question was based on the facts adduced at Habecker’s deposition and was first raised before the trial court. The trial court judge simply declined to address the argument as did the appeals court.
Unfortunately, this decision is probably a precursor of things to come in Establishment Clause litigation. The courts are increasingly turning to procedural technicalities, particularly standing, to defeat otherwise meritorious claims in religion cases.
When a litigant who has been hounded out of public office for refusing to swear allegiance to a deity cannot claim protection under our Constitution, it is a sad day for our judicial system.
