Breaking: 9th Circuit upholds lower court ruling in McCollum v California

Jason Pitzl-Waters —  June 1, 2011 — 60 Comments

The 9th Circuit Court of Appeals has just published their ruling in the case of Patrick M. McCollum; et al., v. California Department of Corrections and Rehabilitation; et al. The decision upholds the district court ruling that McCollum doesn’t have standing to bring the case (an assertion that is rejected by McCollumAmericans Unitedthe ADL, and other groups).

“The district court properly dismissed and granted summaryjudgment in favor of the defendants on McCollum’s claimsbecause, for the most part, he lacked standing. As a prudential matter, we agree that the court need not exercise jurisdiction over these derivative claims. Although McCollum had standing to pursue his personal employment claims, and also constitutional claims for differential treatment as a volunteer chaplain and retaliation, ultimately he cannot prevail on those claims. We therefore affirm.”

This leaves McCollum’s team with two options, either start from scratch with a new case, or appeal to the Supreme Court of the United States. After over five years of litigation, neither option is going to be cheap or easy.

This case centers on the State of California’s “five faiths” policy. This policy limits the hiring of paid chaplains to Protestant, Catholic, Jewish, Muslim, and Native American adherents. The case itself has yet to be heard, as legal counsel for the CDCR has been (so far successfully) arguing that McCollum doesn’t have the standing to bring the case.  You can read up on my summary of the case, here.

Once I have a statement from McCollum and other parties I will post updates.

Jason Pitzl-Waters


  • Limiting the chaplains to just those in the "five" faiths currently recognized not only denies the right to spiritual direction to Pagans, but to Buddhists, Hindus, Ba'hai, etc. Perhaps McCollum should change his tact to include those faiths as well so there are strength in numbers.

    • Kullervo

      Sure, but strength in numbers won't get you standing in federal court to challenge the Constitutionality of the policy.

    • merrybee

      McCollum is tactful, but the tack or direction should include the non-Abrahamic religions you mentioned as well.

  • To my eyes, starting over isn't going to change anything. Best then, to carry on the fight all the way to the highest court of all. Ironic, that the Liberal California, will not recognize the rights of Pagans and Heathens, when they so often throw it in all the other State's faces about how accepting they are of every other minority of color, gender, and so on….

    • Baruch Dreamstalker

      Yes, this is anomalous coming from the Ninth Circuit, typically solidly liberal.

      • The court ruling doesn't only hinge on McCollum's "standing". The ruling also specifically denies that there is any such thing as a "five faiths policy": "CDCR does not have a 'policy' intended to restrict the paid-chaplaincy positions to these five faiths in particular—rather, over time the CDCR paid- chaplaincy program has evolved to include these five faiths. Officials indicate future evolution is envisioned as required by inmate needs."

        As evidence, the ruling lays out the timeline by which the program has evolved from the 1930s to the present: In 1940 all Chaplains were "non-denominational" (prior to that there were separate denominational chaplaincies, but the ruling doesn't specify what they were). In 1957 separate (paid) Jewish, Protestant and Catholic chaplaincies were created. Then a Muslim chaplaincy was created in 1981 and a Native American one in 1989. And also according to the ruling "Officials indicate future evolution is envisioned as required by inmate needs."

        So even though this is a disappointment, it does not set a legal precedent for de jure exclusion of Pagans from 1st amendment protections. In fact, the ruling strongly implies that if such a policy of exclusion could be shown to exist, then that would be a very different matter.

        • Spaz

          So, what you're saying is that this fight needs to be brought by a Pagan prisoner after having to jump through the hoops of being denied an appropriate chaplain?

          • Kullervo

            Absolutely correct. That's how Constitutional litigation works.

          • JoHanna M. White

            There are hundreds of cases like that in litigation right now in California. That isn't changing anything.

          • Baruch Dreamstalker

            On this issue? Or litigation about standing generally?

        • Baruch Dreamstalker

          " the ruling strongly implies that if such a policy of exclusion could be shown to exist, then that would be a very different matter"

          Didn't the CDCR cite a WallBuilders document supporting an explicit, de jure Five Faiths policy as part of this proceeding?

          • Not surprising. I remember hearing this case on Pagan People (thanks Jason for the audio transcoding, BTW) and all I heard over and over from the judges were "what establishes your standing."

            Yeah, it's annoying to "lose" on a technicality. But the Judges are correctly doing their job of ensuring everyone plays by the same rules on the issue they are presented with. I would not expect this to be successfully appealed unless the lawyer for Patrick has come up with a method for establishing standing, which in this trial seemed tenuous.

            To put this into a more distant context, it'd be as if a young adult stole a nickel from a candy store, but the candy store owner was not quite okay with it, but unwilling to pursue legal action. Then you go in suing the young adult because well… you're Wiccan and the candy store owner was Wiccan so obviously that MUST give you a right to sue /sarcasm.

            If you're going to play a game, know the rules and play by them – or find a new game to play.

            – Dave of PCP, and assembler of many Pagan People episodes

          • Kullervo

            The fact that some crapsacks wrote an amicus brief does not establish that a policy exists. Even if the defendant cites the brief.

      • Rhett

        It's not anomalous at all. It's a basic standing ruling.

    • Pitch313

      It appears to my layperson's reading that the court's decision engages a series of technical points about who can bring actions against state agencies for what. And who can bring actions against state agencies to protect or uphold whose civil rights.

      Citizen interest in an agency's policies and procedures, it seems, are not sufficient reasons. Indirect or derivative infringements of rights are likewise not sufficient reasons.

      Commonsensically, this CDR 5 faiths policy appears to violate Constitutional protections of religious non-discrimiation. But the law is not always commonsensical.

      I guess.

      • Kullervo

        Your layperson's reading is correct, except that issues of standing are not just "a series of technical points," but important threshold issues, especially when deciding Constitutional cases.

        A 5-faiths policy for chaplaincy would certiainly violate the Equal Protection clause of the 14th amendment. But the court is not supposed to act on its own–a person with proper standing to challenge such a policy would have to bring the suit in the proper way.

        Also keep in mind that this was not some kind of unforseeable technicality-trap: any first-year law student knows you have to have the right standing to challenge the Constitutionality of a law or policy.

        • Henry Buchy

          proper prior planning prevents piss poor performance.

      • "But the law is not always commonsensical."

        If ever.

    • Kullervo

      No way in a million years will the Supreme Court grant certiorari to hear a case on standing. This decision doesn't deny prisoners' rights to have a chaplain–it just denies McCollum's right to sue to have the policy changed. That's the way Constitutional litigation goes.

      The way to get pagan chaplains in California prisons has been outlined fairly clearly: first, prisoners being denied a chaplain need to exhaust administrative remedies. Then the prisoners themselves who are being denied a chaplain sue for one, in a timeply fashion (so the case is neither unripe nor moot). Then the game changes.

  • Tea

    Boo!! I hope they have the resources to go to the US Supreme Court!

    • Souris Optique

      The current court is such a joke… I don't have much hope, if it did come to that.

      • Crystal7431

        True, I wouldn't depend on the current court to uphold the constitution in any fashion. That's why I'm against life time appointments.

    • Rhett

      Given that the ruling here is over some really basic matters like standing, I sincerely doubt the SCOTUS would agree to hear the case.

      • Windweaver

        The problem is that more of us need to stand up and be counted. We need to let people know just how many of us there are. Have large public gathering to give people more information about who we are, put ourselves more in the public eye, and most of all, make sure that the people that represent us publicly, aren't made to look like "side show freaks" but give an accurate example of who we really are.


  • Basically, the court is saying that the issue is that of the rights of prisoners. McCollum, obviously, is not a prisoner, therefore he has no "standing".

    • harmonyfb

      However, McCollum was denied the opportunity to apply for a paid position….because of his religion. That in and of itself should create standing (in my non-lawyer opinion.)

      • Rhett

        That's addressed in the opinion. His right to apply for the paid position is contingent on the rights of the prisoners. He has no Equal Protection or Title VII claims to make.

  • Actually, McCollum has a 3rd option, which is to seek rehearing or to make a suggestio for rehearing en banc w/ the 9th. Although, on this opinion, that’s a long shot. To have a chance at cert., you generally need a split among circuits or an issue of national importance. And McCollum’s counsel should think long and long before asking the current SCOTUS to weigh in. IMHO. Current opinion lays out a path for possible eventual victory. SCOTUS can take that away

    • Kullervo

      But he can only seek cert on the issues that the 9th decided, and SCOTUS can only rule on the issues that SCOTUS granted cert to hear. The only risk is that SCOTUS includes unfriendly dicta in the opinion that is cited later in future cases.

      But in any case, give SCOTUS some credit. They're judicially conservative, but (excepting Thomas) judicially conservative just does not equal "Republican party platform."

      • Well, one may imagine that SCOTUS is so constrained, but I've seen it write more than a few opinions that went rather broad of that narrow mark. Wise counselors sometimes have to suggest that clients not pursue a course where they may lose more than they've already lost. I'm sure that Rev. McCollum is represented by able counsel who will, no doubt, advise him of the best way to proceed, and they'll be making a more informed decision than I or anyone else commenting on a blog.

        It's sometimes wise to avoid rushing your fences and to, instead, go back and, for example, help some prisoners correctly complain and exhaust below, get a favorable appellate decision, and then, if necessary, defend that before SCOTUS. And while I'm not Rev. McCollum's counsel, nor have I read all of the briefs in this case, I'd be careful before I'd let the Court that decided SALAZAR v. BUONO get ahold of this case.

        In the end, it's likely not much of an issue, as, without even a dissent, this case is probably not going to get cert. As someone noted above, the oral argument was rather telling. Counsel admitted that, although this is a paraphrase, prisoners' rights could be vindicated even if the court found that McCollum lacked standing.

        As to "Republican party platform," well, I'm old enough to remember Bush v. Gore.

        I would like to thank Rev. McCollum and his counsel for standing up for the rights of Pagan prisoners. Losing an appellate case never feels good, but they have helped to advance the ball and today's opinion leaves open a number of important and, thanks to their efforts, more clearly marked, paths. We all owe them our gratitude.

        • Kullervo

          Sure, what SCOTUS does and what they're supposed to do are not always the same. And like I said, in any case, you'll notice I did acknowledge the risk of generating a legal opinion that could be cited in opposition to cases we care about even if it did not hold on those issues.

          But I resent the suggestion that even an extremely conservative SCOTUS would be inclined to enshrine some kind of two-tier Bartonesque religious freedom concept into First Amendment law. That's a paranoid delusion. What recent SCOTUS decision would possibly make you think that's some kind of legal trend?

          And I'm old enough to remember Bush v. Gore, too, but also young enough to have gone pretty deeply into it in law school. It was a terrible decision, sure, but it's not at all relevant to the discussion. The court spent its capital to play kingmaker, yes. Improperly? You bet. But all I'm saying is that the assumption that a conservative Court is somehow going to act as the judicial arm of the GOP betrays a total ignorance about the judicial process or the history of the Court.

          • Khryseis_Astra

            "What recent SCOTUS decision would possibly make you think that's some kind of legal trend?"
            How about the one that made corporations "persons" under the law? That was something a lot of liberals saw coming a mile away, and were called delusional conspiracy theorists by conservatives for… and then it happened.

            At any rate, I'm just glad this ruling didn't include any mention of the Barton/Wallbuilders brief… for now, at least, their ridiculous notion of preferred tiers of faith hasn't been given any legal footnotes to back it up.

    • Hecate: "Current opinion lays out a path for possible eventual victory."

      Sometimes it's hard to see the silver lining when you are still assessing the storm damage, but yes, there is a "path for possible eventual victory" in there, if I understand your meaning (and the Court's meaning). Basically what is needed is more participation by more prisoners in making as coherent and univocal a request as possible for officially recognized, paid Pagan chaplains. Doing it that way has be weighed against the difficulties (including costs) and dangers (including having that other "path" taken away) involved in continuing the current case.

      • Rhett

        Absolutely. This is unambiguously stated in the opinion. They said that what was needed were procedurally valid claims. That starts with a clear request for paid Pagan chaplains.

  • Kullervo

    The thing is, you can't usualy just jump to court and sue for your rights. If there's an administrative avenue open for you to get the problem corrected, you have to try it first.

    It doesn't really matter what the administrative avenue is–if there is one, you have to give it a shot first. And if it doesn't work, then you get to go to court and not have your case dismissed.

    On the other hand, I am pretty sure there is an exception if you can show that pursuing the administrative remedy would be futile.

    In any case, I'm not saying what the prisoners have or have not done. Just saying what they have to do to in general to get standing in federal court to sue over an infringement of their Constitutional rights.

  • On behalf of Lady Liberty League, I would like to express our disappointment in the decision on Rev. McCollum's case. We will comment more as we are able. The quest for religious freedom and equality will continue.

    – Jerrie Hildebrand, Special Issues Coordinator and PR Coordinator for Lady Liberty League.

  • Tim Staker

    I feel McCollum's lawyers need to return his money to him. It seems they led him down the wrong legal path.

    • elnigma

      Another commenter said that Jones Day law firm did it for free. It had to have taken a lot of time and would have cost a ton of money. And their work deserves praise not this. What some say about good deeds.. bah.

  • J. Delaney

    This ruling should come as no to anyone. While I support McCollum fully, no amount of well-wishing, good arguments, or crusading on the parts of people who are not a culture of their own in the eyes of our present Rulers will do anything. I self-identify as pagan, sure. But I'm also from a methodist family of white-arsed Americans. To the judges, the common people who read the news stories, I'm not pagan. I'm a twisted upstart with a weirdo agenda that they are all certain will fall apart when I get older, and then I'll fall into line. There aren't enough people like me to make a difference in this, and in our secret heart of hearts, we all know this. The allure of the uphill battle of the downtrodden minority dries the passion here. I hope that the law does what it's supposed to do, but the tyranny of the majority is not overcome in these ways. The new green shoot of "western paganism" can't hope to struggle with old oaks. In older days, the new shoot of christianity took centuries to gain its way. Buckle down, friends; we've another three or four centuries to go, and perhaps longer, as we have no Rome to subvert.

    • elnigma

      Some legal fights have been won. Some legal rights have been won.
      Resistance is not futile.

  • J. Delaney

    Sorry, above, I meant to say "come as no surprise to anyone".

  • Stef

    How incredibly sad.

  • I am disappointed in this outcome, to be sure and wish for them the blessings of Apollo the litigator and Athene the judge.

    I've known people on both sides of corrections and one of the things that does help is to reach corrections officers. Just one CO that's sympathetic to the religious needs of an inmate can make a huge difference. If you know someone who is incarcerated, write to them, send them books. If you are so inclined, become a CO yourself. These are not huge grand gestures and they will not make a statewide or national difference, but it's possible to make a small difference where you are able.

    I hope this story has a happier ending.

  • Peter Dybing

    One Pagan’s View

    Our Wiccan Warrior has suffered a defeat. The magical sword of the law has been broken. It is inevitable that the sword will be forged again in the fire of our just cause. The defeat of the “five” faiths policy is a forgone conclusion. Now is the time to redouble our efforts in pursuit of Pagan rights.

    This story is a familiar construct in our collective Pagan lore. If we do not falter and continue our collective efforts we will achieve this goal and many more. Now is the time to increase our support for Patrick McCollum in magical and corporeal terms. We will not be denied!

    Peter Dybing

  • That struck me as odd that they will not one but two x-ian clergy. With California having a large Asian Community you would think that Shinto and Buddhist would also be represented.

    I'm the last person to cry "Racist" but you'd think that with a larger (than here in the Mid-West) Asian Community there would be representation of clergy from their faiths.

    We, as "Other Faith", still have a long way to go. We've made strides and inroads in the past 20 years. I don't even think this case would have made it to court back in the 1980's.

    • Rhett

      If there aren't Shinto and Buddhist prisoners demanding access to clergy, then the program has no impetus to include them.

  • There is, however, the point that prisoners will get better support from trained chaplains than from untrained ones. And while training is available through Cherry Hill Seminary, and perhaps other institutions, it costs money. How many of us have enough spare change to undertake expensive professional education in order to volunteer our time and services?

    • elnigma

      This is the same as asking if Pagan Clergy should be paid or if training should cost money, etc. etc.
      Some will say yes, some no.
      There are people who will have personally absorbed the costs and will volunteer their teaching to others.

  • JoHanna M. White

    I encourage folks to read Starhawk's Blog about Beltane in 2 Womens Prison with Patrick: