Triple Trouble In The Federal Courts by Robert Tiernan (August 2000)

There are many things wrong with our legal system. I’d like to cover three: The first is that public officials are not held accountable for violating the Constitution, including that section of the Bill of Rights mandating separation of church and state. Second, there is no uniformity in the federal system unless a case actually is accepted and decided by the United States Supreme Court.

And, third, one must actually go through the process to appreciate the unbelievable amount of paperwork involved, mostly unnecessary, in seeking justice in the federal courts. In Stone v. Graham, a 1980 case, the United States Supreme Court ruled that a Kentucky state law mandating the posting of the Ten Commandments in public schools was unconstitutional. Even though the Kentucky statute required the inclusion of an avowed secular statement, the Court held that “the Ten Commandments are undeniably a sacred text” and that the disclaimer did not alter that fact.

Twenty years later we are faced with the very same issue. A law passed recently by the Kentucky legislature calls for posting the Ten Commandments in schools, courtrooms, and other public places. The law requires that other “historical” documents such as the Declaration of Independence, the Mayflower Compact, excerpts from our Constitution, etc., be posted alongside the Ten Commandments to emphasize the “secular” rather than the religious aspect of the Commandments. In reality, this is worse than the 1980 law because it gives the Ten Commandments an aura of being part of our system of government which, of course, they are not. On May 5, a Federal District Court declared such a display in Tennessee unconstitutional. Surely this case will wind its way up to at least the Court of Appeals if not the Supreme Court.

I would expect those Courts to uphold the District Court and say that this issue was decided long ago in Stone v. Graham. What consequence do the Kentucky legislators and the school officials face for this affront to the rule of law? Nothing. They go on their merry way just as though nothing improper was done. Won’t these officials pay at the ballot box? That is not likely. Most state officials are appointed and are not subject to being voted out of office. And those who are elected usually have strong support from their constituents. We must remember that the Bill of Rights is intended to protect the minority. Therefore, the democratic process of a vote is usually of no help because the incumbent official was probably playing to the majority in the first place. This is also why impeachment is not a viable solution. Plus, impeachment ordinarily takes the vote of a supermajority.

It is interesting to hear the hypocrisy of public officials when they say that we citizens must be held for the consequences of our actions when they snub their noses at the law and get away with it. It sure looks like a double standard. This problem needs to be addressed, possibly by a Constitutional amendment. There must be some mechanism by which public officials can be called to task for ignoring the rule of law. Expanding the contempt powers of the judiciary would be one possible solution but that is fraught with its own Constitutional problems.

In the meantime, all we can do is follow the advice of the Founders of this country who emphasized that we citizens must be constantly vigilant against intrusions on our Constitutional rights. As for uniformity in the court system, there are eleven federal circuits and a twelfth in the District of Columbia. Each Circuit sees itself as having dominion over its little empire.

For example, judges in the 5th Circuit, which covers Texas and Louisiana, are notorious for siding with the petrochemical industry which has a heavy presence in those states. The well-heeled oil and chemical companies see to it that litigation which affects them is steered into this Circuit. You may remember the Exxon Valdez.

In that case, jurisdiction was controlled by the 9th Circuit which covers Alaska. Exxon tried everything to get it transferred to the 5th Circuit, but didn’t succeed. Something needs to be done about this. An oil spill or a fatal car accident in California is no better or worse than one in Texas.

There is no difference between a Ten Commandments monument in Atlanta and one in Denver. There is nothing peculiar about one Court circuit vis a vis another that should account for vastly different judgments on the same set of facts. The net result is seemingly endless litigation which often resolves little or nothing. Only when the U.S. Supreme Court takes jurisdiction and hands down a decision is uniformity achieved. Even here, though, is the problem of recalcitrant public officials ignoring the law as discussed earlier. Now for my favorite subject–paperwork. There is an old story about why lawyers’ writings are so verbose. In olden days, lawyers were paid by the word, meaning that every redundant sentence put more cash in their pockets. It’s become a habit that the profession has been unable to break.

When I first started practicing law, there weren’t such things as computers, copying machines, etc. Therefore, while there was, I thought, an excess of paperwork, it wasn’t overwhelming. How times have changed! The age of technology has brought a veritable snowstorm of paper. Someone observed the other day that if we don’t stop this trend of more and more paperwork, we won’t have any trees left by the end of this century. The following is just a little taste of what the federal court here in Denver requires in the way of paperwork. To begin a legal action, of course, one must file a complaint. Then the paper blizzard starts.

The rules governing cases are the Federal Rules of Civil Procedure. These rules apply to Federal trial courts everywhere in the country. But that is not enough. There are local rules for each district court. Ordinarily these rules complement the Federal Rules but, often, they appear to be in conflict and that creates a hassle. Sometimes it is necessary to do two seemingly contradictory things just to make sure that you do not face a default for failing to comply with each and every rule. It doesn’t stop there. Each District Court Judge (and there are about ten in Colorado) has his or her own special set of rules. Lawyers are expected to understand and comply with each Judge’s peculiar set of rules. I represented the Freedom From Religion Foundation in seven cases during the 1990s. Only one of those cases actually went to trial.

The other six were disposed of on preliminary motions or were decided on as a matter of law. For example, even though we had a professional survey which showed that over 70% of the public believes “In God We Trust” is an endorsement of religion, we were never given the opportunity to place the survey in evidence at a trial.

Instead, the Court ruled that the motto is “ceremonial deism” (whatever that means) as a matter of law and denied our request for a trial. Notwithstanding that only one of these cases actually went to trial, I have ten huge notebooks filled with pleadings, notices, advisements, interrogatories, motions, briefs, etc., for these seven cases. These notebooks do not include correspondence and the like. They are limited to documents which were issued by the Court, had to be filed with the Court, or had to be exchanged with the opposing party.

I remember an attorney in one of the cases saying that he was so swamped with paperwork he forgot what the substance of the case was really about. The unfair part of this system is that, as a general rule, it is the plaintiff’s attorney who has most of the responsibility to see to it that the paperwork requirements are met. For example, the plaintiff’s attorney has the burden of doing the first draft of all scheduling orders to be adopted by the Court. Those orders include a complete statement of the issues, the issues on which the parties agree and those which they don’t, the identity of each expert witness and the substance of his or her testimony, etc. Some of these scheduling orders can take as many as twenty pages. Only after the plaintiff prepares the first draft does the defendant’s attorney get involved.

His or her role is to put in further information germane to the defendant’s theory of the case and, of course, to quibble with much of what the plaintiff’s attorney has done. If the controversy can’t be settled promptly enough, it is the plaintiff who has to go to the Judge and explain why the order was not filed on or before the required deadline. In most of the Establishment Clause cases with which the Foundation gets involved, the Foundation is the plaintiff and government is the defendant. Despite the fact government has by far the greater resources, managing the majority of the paperwork is nevertheless the plaintiff’s burden. This can be an overwhelming task which often results in a denial of access for all but the very wealthy. There are many things wrong with our judicial system. That is unfortunate because it is the courts, and only the courts, that can protect the rights of minorities.

The executive and legislative branches, which are dependent on the support of the majority, find it necessary to play to their audiences and rarely take unpopular positions. The court and the jury systems are probably our most important bastion of freedom and we must constantly put on the pressure not only to preserve them but to improve them. Robert R. Tiernan, an attorney, heads the Denver FFRF chapter.

Freedom From Religion Foundation