Blogger is apparently determined to behave in a completely erratic manner. Perhaps it will stay up long enough to let me share a few thoughts on McCollum v. CDCR, 2011 U.S. App. LEXIS 10971, (9th Cir., June 1, 2011). Warning: Some of this will be a little bit "law geeky" but I'll try to keep that to a minimum.

First, the lower court was ruling on a summary judgment motion. That's a motion that you make, generally before the trial starts, that asks the court to dismiss the complaint (and avoid the cost and trouble of a trial) because, even if the person complaining proved everything that they say they can prove, they still wouldn't be entitled to recover anything. In essence, they have no cause of action. The lower court agreed with CDCR that McCollum (and the prisoners suing with him) had no case. McCollum appealed to the United States Court of Appeals for the Ninth Circuit, which agreed with the lower court. Primarily, as to McCollum, the Ninth Circuit held that he lacked standing on most of his claims and couldn't prevail on his others. And the prisoners had either failed to exhaust their claims, let too much time go by, or had dropped their claims so that the appeal could go forward.

So that's two strikes on this approach. But no court has really had a chance to rule on the merits of this case -- the actual issue of whether it comports with the Constitution and other laws for California to pay chaplains of some religions and not others. And, the real goal here is not to prove whether Rev. McCollum or any other specific person has standing to sue, but to get equal treatment for Pagan prisoners and chaplains. I'd hazard to say that Rev. McCollum would agree with me.

Let me say a little bit about standing. I've seen standing described in some blog posts and comments about this case as a "technicality." But standing is a bedrock foundation of our legal system. Most of our federal courts (including the Ninth Circuit) exist because Article III of our Constitution says:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Our system of limited governmental powers applies to Article III courts, as well as to the President and Congress. Article III courts can only adjudicate legal disputes in "Cases" or "Controversies." Thus, if a court simply doesn't like a law that Congress passes, it can't issue an "advisory opinion" and say what the court thinks is wrong with the law. It has to wait until litigants bring a proper suit over the law. As SCOTUS very recently explained in Camreta v. Greene, 2011 U.S. LEXIS 4016 at *15 (2011):

To enforce this limitation [on courts' powers], we demand that litigants demonstrate a "personal stake" in the suit. The party invoking the Court's authority has such a stake when three conditions are satisfied: The petitioner must show that he has suffered an injury in fact that is caused by the conduct complained of and that will be redressed by a favorable decision. (internal citations and quotations omitted).

Standing is what stops your nosy neighbor from suing the neighborhood kids for trespassing because they walk across your lawn, when it's ok with you for the kids to do that. It's what keeps "activist" judges from issuing opinions outlawing abortion when no one has brought a suit before them. Yes, standing sometimes seems unfair. It prevents someone who cared enough about an issue to hire a lawyer, bring a suit, and pursue a case from having a day in court. But it's what keeps our tripartite system of government in balance; it's not a technicality.

At this point, McCollum and his lawyers have several choices. First, they can ask the same Ninth Circuit panel that issued this opinion to grant rehearing. That's, IMHO, a long shot in this case. (Rehearings are rarely granted, in any event.) If one judge had dissented, you'd figure that you only had to get one of the other judges to change hir mind. But there was no dissent here. Or, if the court had just gotten something factually or legally wrong (thought that the light was red when everyone in the case agreed that it was green, thought that the law said "X" when it really says "Not-X"), you might file for rehearing. You can do that and then, afterwards, go to the Supreme Court if you're still not happy, so it's not an either/or proposition. It's generally low risk, in that if the court denies the rehearing, they don't usually write another long opinion and give you 15 more reasons why you're wrong. But it's just not likely in this case. Similarly, McCollum can make a suggestion to the entire Ninth Circuit for a rehearing en banc, but that's probably even more unlikely. This issue just isn't interesting to enough of the judges on the Ninth Circuit. People often file both a request for rehearing and a suggestion for a rehearing en banc, so McCollum can do both.

Second, McCollum can ask the Supreme Court to hear his case (either after seeking rehearing or right now). The Supreme Court is unique, in that it doesn't have to hear any case and doesn't have to explain its reasons for not hearing a case. Lawyers call the process of asking SCOTUS to hear a case "seeking certiorari" or "cert." Rule 10 of SCOTUS' rules explains that the Court is most likely to accept a case when there's a split among the circuit courts -- for example, if the Ninth Circuit held "no standing," but the First and Third had held that there is standing in very similar cases -- or in cases of national importance (think, grrrr, Bush v. Gore). The key language from Rule 10 is:

A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.

McCollum likely would be arguing that the Ninth Circuit misapplied a properly stated rule of law. So this case is unlikely to get cert.

I've seen some people say that SCOTUS won't grant cert. (guaranteed 100%, no how, no way!) in a case about standing, but that's incorrect. Just last week, SCOTUS issued an interesting Ninth Circuit standing case, Camreta v. Greene, 2011 U.S. LEXIS 4016 (2011). But McCollum v. CDCR, unlike Camreta v. Greene, is pretty cut-and-dry standing stuff, and if there were a split among the circuits, I'd have expected that to be argued in briefs and dealt with in the Ninth Circuit's opinion. And prisoners' First Amendment rights, sadly, aren't considered issues of national importance.

Finally, I'd worry -- a lot -- about letting this SCOTUS, which recently held that the cross is a good enough religious symbol to memorialize soldiers of every religion, get ahold of this case and explain why a Catholic priest is good enough for every Pagan prisoner. (The court has only gotten more conservative since that opinion.) In other words, if they DID grant cert., it would be to work more mischief, not to help Pagans. Sometimes, you just have to be willing to quit while you're only so far behind.

So should McCollum just give up? I don't think so.

My reading of the opinion is that Judge Schroeder (a Carter appointee, placed on the panel when Judge Thompson died, so that this panel was composed of Judge Schroeder and Judge McKewon, another Carter appointee, and Judge Silverman, a Clinton appointee; you won't get a more sympathetic panel than that) was careful to lay out an eventual path to victory. No, it's not as emotionally satisfying as saying, "Fine! We'll go all the way to the Supreme Court!" but it's more likely to actually, you know, work. I hope that those willing to raise money, write letters, and do magic (raises hand!) for a run at SCOTUS will be willing to get behind this slower, more likely effort.

Here's what I think Judge Schroeder was saying. I'm referring to the "slip opinion" published at the Ninth Circuit's home page and that's where the page numbers that I'll refer to come from.

First, the Ninth Circuit rejected the notion that there is a "Five State-Sanctioned Faiths Policy," as argued by McCollum.* Rather, the court found that:

over time, the CDCR paid-chaplaincy program has evolved to include these five faiths. Officials indicate future evolution is envisioned by inmate needs. Slip op. at 7165.

We need to focus on that "future evolution" driven by "inmate needs."

The opinion goes on to note that paid chaplains were added for Muslim prisoners in 1981 and for Native Americans in 1989 due to "perceived inmate need" and a "consent decree". Id. at 7166. What led CRDC to "perceive a need" for a Muslim chaplain and what led to the consent decree re: Native Americans? How can McCollum and the rest of us make a case that Pagan prisoners are now similar to Muslims in 1981 and Native Americans in 1989?

The opinion cites the 5 factors that the CRDC says it will apply and these include "religious group size." (In 2002, there were 598 Wiccan prisoners and only 306 Jewish prisoners, but CRDC paid rabbis.) What can we show right now? Can we fit within the other factors, such as "alternative means of accommodation"? It's one thing to say that a Lutheran minister can oversee a Methodist Sunday service; it's got to be easier to show that a Catholic priest, whose religion holds that one may not "suffer a Witch to live," can't effectively supervise a prisoner-led Wiccan Samhein ritual.

Then, at slip op. 7169-70, there's a discussion about why the claims of the prisoners, themselves, as opposed to McCollum, were either not fully exhausted or were time-barred. "Exhaustion" is (oh, yes, in more ways than one) a legal term. It means, for example, that you can't, generally, run right to the Supreme Court with your complaint. You have to start at the lowest level and only work your way up if you can't get relief below. For prisoners, this includes filing a complaint with the prison and giving the prison notice of the specific relief -- here, a paid Wiccan chaplain -- that you want. You've got to explain why a paid chaplain, rather than a volunteer one, is necessary. As the opinion hints, Mr. Collins, a prisoner, did that. He wanted a visit in hospital from a Wiccan chaplain, but was told that he couldn't have one because his "chaplain was not a regular paid chaplain at San Quentin, i.e., not Christian/Protestant/Catholic, Muslim, or Native American." Id. at 7169. The problem was that Collins made this complaint a long time ago, and our laws impose time limitations; you can't sit on your case for years and then sue on it. It's not fair to the other side, which may have lost evidence that they'd have saved if they'd known you were going to sue.

But here's where, IMHO, Judge Schroeder sets out a clear path that shows how to build a successful case. Pagans need to request visits from Pagan chaplains (in hospital, when they are concerned about their family members, before appeals and other trials, etc.) and document that they get denied because their chaplains are not "regular paid chaplains." They'll probably also have to accept a visit from, say, a Catholic priest who counsels them about the evils of Witchcraft and then show why that didn't work for them, because CDCR's policy seems to envision paid chaplains ministering to prisoners outside their religions when necessary. And then, with the help of McCollum and those willing to raise funds and do magic, etc., they'll have to pursue their claims in a timely manner.

This is the work of a number of years. It's not nearly as likely to sustain long-term Pagan interest as, say, a run at SCOTUS, which, as I've noted above, is, at best, a pipe dream and, at worst, a way to have this temporary loss turned into a complete and total loss that applies nationwide and not just to California. But it's how civil rights have always been won. Thurgood Marshall laid out a long-term, multi-year, incremental route to Brown v. Board of Education. And he won.

I'll say what I've said before. I'm grateful to Rev. McCollum and his able pro bono (that means: unpaid, even in these difficult economic times) counsel at Jones Day for standing up for Pagans. Thanks to them, we've now got a Ninth Circuit opinion that lays out a clear path to eventual victory. It's never fun (oh, no, trust me, it's not) to lose an appeal. These cases take a lot out of you, and you pour everything you've got into them. You show up, do your best, argue before really brilliant judges, and, sometimes (damn it!), you lose. It hurts. A lot. And then, if you're really committed to a cause, or if you're just an honest-to-Goddess advocate all the way down to your marrow, you sober up, say a few more bad words, kick some dust, and figure out how to move forward. You go back, re-read that painful opinion, see what's to be done, dust off your suit, light incense to Ma'at, and get back in the game, in the most sensible and likely-to-succeed manner possible.

That's what I hope that the Pagan community can do here.

Because this fight, like the fight for Wiccan veterans, matters. For all of us.


*For the love of the Goddess, can we quit saying "faith" when we mean "religion"? Paganism isn't a "faith," it's (probably) an umbrella term for various religions, just as "Christianity" is an umbrella term for various religions such as Catholics, Baptists, Lutherans, and Satanists.

Picture found here.

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Update: Several commenters make very good points about the use of the word "Wiccan" in the Ninth Circuit opinion, as opposed to "Pagan." The court said that it was adopting the terminology from McCollum's brief. I don't know, but my guess is that there were two things going on. One is that there's a word limit on briefs, and so people often select one word and note early on that, when they use it, they mean all of a group of things. Hence, "Wiccan" for Druids, Asatru, Reconstructionists, etc. The second thing that I suspect may have been going on was that Wicca tends to be, more and more these days, and especially since the victory over veterans' tombstones, recognized by the outside world as a "real" religion, while "Pagan" is likely to be perceived as a looser term. My understanding is that McCollum is a Wiccan and the thought was likely that the court would recognize Wicca as a "real" religion and, hence, entitled to paid chaplains.

Also, markarios asks about volunteer chaplains. And if the prison system were to, for example, in cases similar to Collins', allow volunteer Pagan chaplains to visit prisoners in the hospital, the prisoners would have a more difficult time showing that they needed to be visited by paid chaplains, although I can think of some reasons why that might matter. In Collins' case, he was sick in the hospital and denied any Pagan chaplain because there were no paid Pagan chaplains, and that's a pretty good, sympathetic case to take up on appeal in a timely manner. There's also some indication that volunteer chaplains have to be supervised by the paid chaplains, and I can think of instances when that could interfere with the prisoners' rights and, again, be worth running up on appeal.

I've revised the rest of the posting in minor ways for clarity.

(I should add, these are my own thoughts, not intended as legal advice, and do not represent the views of anyone else.)