Timothy Sandefur posted Entry 2765 on December 13, 2006 09:51 PM.
Trackback URL: http://www.pandasthumb.org/cgi-bin/mt/mt-tb.fcgi/2756

Casey Luskin has a response to some of the criticisms that we and others have made against the DI’s silly publicity stunt about the Kitzmiller decision. We’ve pointed out that courts use proposed findings of fact in this way all the time and that appellate courts are fine with it in almost all cases. But Luskin claims that, no, “[t]he Third Circuit, which governs all federal courts in Pennsylvania, has strong law discouraging judges from simply adopting ‘verbatim or near verbatim’ the findings of fact of parties in a case.” This, as we would expect, is not really accurate.

Luskin cites Bright v. Westmoreland County, 380 F.3d 729 (3rd Cir. 2004), but the Bright court noted that “we are not dealing with findings of fact. Instead, we are confronted with a District Court opinion that is essentially a verbatim copy of the appellees' proposed opinion.” Id. at 732.

That’s completely different than what we have in Kitzmiller. An opinion includes both the findings of fact and the conclusions of law. Not even the DI’s “study” shows that Judge Jones’ opinion was somehow copied from the plaintiffs: it only shows that the judge adopted the findings of fact which were prepared by the plaintiffs—a procedure that the Bright case accepted as legitimate: “the linchpin in using findings of fact,” the court noted, “even when they are verbatim adoptions of the parties' proposals, is evidence that they are the product of the trial court's independent judgment.” Id. at 732. The Kitzmiller decision is filled with evidence that Judge Jones exercised his independent judgment.

In Bright, the trial judge “indicated that [he] was going to grant appellee's motions to dismiss before it even received Bright's response to those motions. Indeed, Bright claims, again without a rebuttal, that he did not have the opportunity to object or even respond to the submitted opinion and order before the District Court adopted them as its own.” Id. The appellate court in Bright included the text of the trial judge’s order and the proposed order, so that readers could be clear what that case was about. You can read it for yourself and see. Unlike the case here, the plaintiff drafted a complete judicial opinion, including the findings of law and beginning even with “This case arises from the tragic death of…”—unlike the proposed findings of fact that the plaintiffs offered in Kitzmiller, which were plain, perfectly acceptable statements of proposed findings of fact. Again, you can read Bright online yourself, and see the distinction.

In a later case, the Third Circuit upheld a trial court’s decision, in which the judge adopted large portions of the proposed findings of fact. It rejected the claim that this was improper. In words that could be equally applied to Kitzmiller, the Court explained:

The district court's order adopted, almost verbatim, the findings of fact proposed by Boeing. Relying on Bright…appellants maintain that by so doing the district court erred. We do not agree.

Here, unlike in Bright, we are convinced that the district court conducted an independent review of the case. The findings of fact are replete with citations to the record, and the court heard argument from the parties before issuing its opinion. Moreover, the district court had before it appellants' response to [the] "Statement of Undisputed Facts."

McClam-Brown v. Boeing Co., 142 Fed.Appx. 75, 76 (3d Cir. 2005).

None of the other cases Luskin cites support his attempt to portray Judge Jones as a puppet of the ACLU. In fact, they represent good old-fashioned quote mining, a skill well developed among creationists, I’m sorry to say. For example, he cites Anderson v. City of Bessemer City, 470 U.S. 564, 572 (1985), for the sentence: “We, too, have criticized courts for their verbatim adoption of findings of fact prepared by prevailing parties, particularly when those findings have taken the form of conclusory statements unsupported by citation to the record.” Now, first of all, Judge Jones’ opinion in Kitzmiller is full of citations to the record. Not even the DI report claims otherwise. Secondly, here’s what the Supreme Court went on to say:

Nonetheless, our previous discussions of the subject suggest that even when the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous. United States v. Marine Bancorporation, [418 U.S. 602], 615, n. 13 [(1974)]; United States v. El Paso Natural Gas Co., 376 U.S. [651] 656-657 [(1964)].

In any event, the District Court in this case does not appear to have uncritically accepted findings prepared without judicial guidance by the prevailing party. The court itself provided the framework for the proposed findings when it issued its preliminary memorandum, which set forth its essential findings and directed petitioner's counsel to submit a more detailed set of findings consistent with them. Further, respondent was provided and availed itself of the opportunity to respond at length to the proposed findings. Nor did the District Court simply adopt petitioner's proposed findings: the findings it ultimately issued—and particularly the crucial findings regarding petitioner's qualifications, the questioning to which petitioner was subjected, and bias on the part of the committeemen—vary considerably in organization and content from those submitted by petitioner's counsel. Under these circumstances, we see no reason to doubt that the findings issued by the District Court represent the judge's own considered conclusions.

Id. at 572-73.

The DI’s publicity stunt isn’t so Bright at all.

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Comment #150274

Posted by C.E. Petit on December 13, 2006 11:28 PM (e)

Luskin made one of the classic mistakes made by law students in the first year course in civil procedure (but usually only once or twice). It’s akin to beginning an organic chemistry experiment without inspecting the equipment to ensure that it doesn’t have any residue left from the last session… or to stepping on the gas without checking what gear the car is in.

On the one hand, Westmoreland was decided on a motion to dismiss for failure to state a claim. At the dismissal stage — the defendant’s first chance to get out of the lawsuit, without having to present evidence — the standard of decision itself tells us not to copy the defendant’s brief as opinion. “Failure to state a claim” means that there exists no even hypothetical set of facts consistent with the complaint that would entitle the plaintiff to a remedy from the court. In short, there is no evidence in front of the court; all that it is considering is the allegations in the complaint (which are accepted as true for the purpose of the motion) and the parties’ legal arguments.

On the other hand, Kitzmiller was decided after a full bench trial. There is not just legal argument, but evidence in front of the judge. Particularly after a bench trial, the judge is going to make his findings reasonably close to the language used by the witnesses. Since the witnesses have almost certainly been prepared by counsel, if only in how to state their evidence, it makes perfect sense that the judge’s findings of fact would tend to be similar to the language used by the winning side’s witnesses.

Westmoreland simply does not apply to the procedural posture in Kitzmiller, regardless of whether we’re talking about findings of fact or legal reasoning.

Comment #150277

Posted by Popper's ghost on December 14, 2006 12:31 AM (e)

There’s big a difference between Luskin’s claims being mistaken and Luskin making a mistake.

Comment #150284

Posted by Torbjörn Larsson on December 14, 2006 12:55 AM (e)

Luskin wrote:

the Associated Press reports that a legal scholar at the Louis Stein Center for Law and Ethics at Fordham Law School explained that it is “not typical for judges to adopt one side’s proposed findings verbatim.”

Now, why is that not typical, and what does it tells us about DI’s case? Especially what does it tell us about DI’s ‘proposed facts’ that they continue to put against Jones ruling? Luskin has a severe case of foot in mouth disease.

So has Moran. His failure to read (PT posts) on the case comes back to haunt him. That Luskin didn’t do the usual quote-mining makes it even worse. :-)

But what about Wexler’s piece Luskin refers to?

Jones says “Having so concluded, we find it incumbent upon the Court to further address an additional issue raised by Plaintiffs, which is whether ID is science…. Finally, we will offer our conclusion on whether ID is science not just because it is essential to our holding that an Establishment Clause violation has occurred in this case, but also in the hope that it may prevent the
obvious waste of judicial and other resources which would be occasioned by a subsequent trial involving the precise question which is before us.” He also notes that McLean had a similar ruling.

I don’t get Wexler’s reasoning. It is already decided that a religious belief isn’t science in deciding to keep them separate. So Jones supports his ruling by an explicit finding. It wasn’t about sufficiency, it was about ruling to Plaintiffs’ case and also to the best interest of the legal service, as I understand it. Had Jones a choice about the former? Was he wrong to act on the later?

Comment #150285

Posted by Torbjörn Larsson on December 14, 2006 1:00 AM (e)

I should have quoted Wexler’s argument.

Wexler wrote:

The part of Kitzmiller that finds ID not to be science is unnecessary, unconvincing, not particularly suited to the judicial role, and even perhaps dangerous to both science and freedom of religion. The judge’s determination that ID endorses religion should have been sufficient to rule the policy unconstitutional.

Comment #150290

Posted by Renier on December 14, 2006 1:40 AM (e)

ID lost in Dover. No amount of whining is going to change that.

Comment #150293

Posted by MTran on December 14, 2006 2:04 AM (e)

Torbjörn Larsson provided us with this quote from Wexler: The judge’s determination that ID endorses religion should have been sufficient to rule the policy unconstitutional.

Thanks for copying that quote. Since there may be some readers with a superficial familiarity with some legal procedures and terminology, I thought they should hear some of the reasons as to why Wexler’s assertion is both misleading and lame.

Many people may have heard of court decisions being issued on very narrow grounds that don’t even attempt to address other issues that were raised by the parties. These types of opinions are normally issued only by courts of appeal. Courts of appeal tend to exercise a great deal of “judicial economy” and this is reflected in their decisions. If an appellate court finds a single dispositive legal basis to affirm or reverse a decision from a trial court, chances are that it will do so and not bother with a written analysis of the remainder of issues. Because doing so would be “gratuitous.”

Dover was not an appellate decision. It was an opinion rendered following a trial. It addressed issues of fact and of law, both of which are functions of trial courts.

Had Judge Jones failed to carefully articulate his reasoning or had he failed to consider all the disputed issues before him, his opinion would be wide open to all sorts of objections on appeal. If a trial court judge fails to demonstrate (through a written opinion) that every legal issue or dispute in the case was adequately considered, the case is likely to be bounced right back to the judge by the appellate court with instructions to re-write the decision to include coverage of every relevant issue. This may require yet another trial.

As you might guess, trial courts want to avoid retrying their cases and reconsidering their decisions. For purposes of judicial economy, common sense, and sound policy, a trial court decision will typically address all relevant issues. Just as the Dover decision did.

Those who get their legal “training” by reading court opinions found on line or in text books may come away with completely false impressions about how trial courts perform their functions because nearly all of the reported decisions come from appellate courts, not trial courts. Very different worlds. Like the difference between a lecture and a lab project.

Comment #150315

Posted by Reed A. Cartwright on December 14, 2006 5:31 AM (e)

I find it illuminating that in their media roundup, the DI neglects to mention to their readers that PT and Dispatches et al. have taken them to task. Propaganda doesn’t work as well if you allow your audience to get an actual education on the subject. They also appear to be having problems with their trackbacks….

Comment #150321

Posted by Torbjörn Larsson on December 14, 2006 7:05 AM (e)


Thank you for clarifying the issue! I have a vague memory that this was covered by PT posts on Dover, but it was good to have it straightened out.

Comment #150391

Posted by Larry Moran on December 14, 2006 2:35 PM (e)

Torbjörn Larsson wrote:

So has Moran. His failure to read (PT posts) on the case comes back to haunt him.

That may be true. It’s quite possible that there were several postings pointing out that Judge Jones copied large amounts of the Plaintiffs’ Findings of Facts and Conclusions of Law. I thought I was pretty well informed from multiple sources but, what the heck, we all make mistakes.

If the postings exist, I must have missed them. Furthermore, I still can’t find them. Please post the links.

Comment #150392

Posted by Larry Moran on December 14, 2006 2:36 PM (e)

Torbjörn Larsson wrote:

So has Moran. His failure to read (PT posts) on the case comes back to haunt him.

That may be true. It’s quite possible that there were several postings pointing out that Judge Jones copied large amounts of the Plaintiffs’ Findings of Facts and Conclusions of Law. I thought I was pretty well informed from multiple sources but, what the heck, we all make mistakes.

If the postings exist, I must have missed them. Furthermore, I still can’t find them. Please post the links.

Comment #150509

Posted by L. Breckinridge on December 15, 2006 2:53 PM (e)

Casey Luskin quoted dicta (judges‘ remarks or observations not specifically applicable to the case at hand and/or not necessary to reach the decision) and so the question of the degree of similarity between the Dover case and the cited cases is irrelevant.

Also, over 90 percent of the ID-as-science opinion was virtually copied from the ACLU brief and that is almost the same as 100 percent.

Comment #150523

Posted by Torbjörn Larsson on December 15, 2006 4:29 PM (e)

Larry Moran wrote:

If the postings exist, I must have missed them.

Hmm. I try to refrain from referring to sources that I haven’t checked. Not only because it could be wrong, but also because it can be hard work for parties to find them. You can’t find it, I can’t either. So I have to retract this. (We can all put our foot in our mouth. ;-) I apologize for characterizing you as having failed to follow the Dover case, it was wrong of me to do so.