Official Statement from Patrick McCollum on Ninth Circuit Ruling

Jason Pitzl-Waters —  June 12, 2011 — 38 Comments

Pagan chaplain and activist Patrick McCollum has sent me an official statement regarding the recent Ninth Circuit Court decision in his case against the California Department of Corrections and Rehabilitation. Because of its length, nine pages, I’m offering it here as a PDF download. It goes into great length explaining how the case was brought, the issue of standing, the ramifications of the Ninth Circuit’s decision, and why McCollum and his legal team believe the recent ruling was incorrect.

Here’s a brief excerpt:

“The employment discrimination ruling is especially disturbing and is one that all religious people should be worried about, not only Pagans. It creates precedent that gives the state the power to discriminate on the basis of religion for chaplain jobs, for example chaplains in prisons, hospitals, the veterans’ administration, and the military. The court ruled that the state could choose to prefer some religions over others, even when (as the defendants in my case admitted and the court noted) those religions are chosen for no reason at all – are not based on any criteria.

The rationale the court gave for its decision was that the five faith inmates have a first amendment free exercise of religion right to their chaplains. But there was nothing in the case so far that could have warranted the court coming to that conclusion. The defendants admitted that the inmates’ fee exercise rights were not criteria for the five faith chaplains; there were no criteria. Yet the court ruled that the only way I would be able to apply for a chaplaincy job is if the Pagan inmates proved that their free exercise rights require them to have a chaplain. But the five faith inmates never had to prove that their first amendment rights require them to have chaplains. (The Native Americans got a settlement consent decree that said they have that right.)

The court also stated that the five faith chaplains serve all other inmates’ faith groups. That also was a finding that the court had no basis to reach, and it isn’t true. In the prisons I still go to and others, inmates only have services when there is a volunteer, and because of that, the inmates can go long periods without religious accommodations at all, especially because prison staff do all sorts of things (for example “losing” paperwork over and over again) to prevent the inmates from coming to services, even when there is a volunteer at the prison to provide services.”

I’ve only just started analyzing this response, so I’ll no doubt have a more in-depth commentary later, but I wanted to get this up ASAP so the rest of the Pagan community, especially those who’ve been providing legal commentary, can digest it as well. I’d like to thank Patrick McCollum, the Patrick McCollum Foundation, and his legal team for their openness and accessibility in the wake of this recent decision. I’d also like to personally thank Patrick McCollum for his many years of service on this important issue, and express the hope that this latest setback is a temporary and surmountable one.

Here’s my previous coverage on this ruling and its aftermath:

 

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Jason Pitzl-Waters

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  • http://www.facebook.com/zaracon Larry Zaracon Sodders

    Thank you Jason and Patrick for getting this information out to us so fast

    • Baruch Dreamstalker

      Right.

  • Tam Evans

    Thank You

  • http://avaloniangirl.blogspot.com Morwyn

    Thank you both for all your hard work.

  • http://www.facebook.com/womanbei April Ayers

    Definitely reading this, though it may take some time for me to digest. Thanks for getting this out to us!!

  • Sunwyn

    Another swipe at our Constitution. I am amazed at the apathy from people of ALL religions when it comes to separation of church and state. Isn’t Wicca classified as a religion in the military? I don’t understand how this can go on in any city, state, or federal penal system.

  • http://twitter.com/PCPPodcast @PCPPodcast

    Not really sure what to make of all this. Crap like the death threat made against Patrick seems to be how the YouTube generation came to be and why Senators use Qik – record everything so those drunk with power can no longer get away with stuff due to lack of proof.

    If only recording in prisons was permitted (it's not due to "security concerns" – which to an IT geek screams "we admit our prison is horribly insecure, try not to figure out how though") :/.

  • http://www.magickal-media.com A.C. Fisher Aldag

    I deeply appreciate the attempt made for gaining equality within the CA prison system — and everywhere else within government — by Rev. McCollum.

    At the same time, I understand why the case was lost. Of COURSE there was covert discrimination… but the wording of the case was somewhat weak. No offense… I mean from a legal standpoint. If there's a tiny flaw in the presentation of, attorneys will tear at it until it's a gaping hole.

    As some of you may know, my handfasted second husband David Hooker is an incarcerated Asatrur, so this matters to me in a personal way.

    There is a response by Eric Roberts on http://www.magickal-media.com to why the case failed. I mostly agree with his statements, and legal analysis about why the court ruled against Rev. McCollum in the links shown here on "The Wild Hunt".

    With my limited legal experience (winning crap-tons of lawsuits counts!) I believe this will have to be approached as a class-action suit by the prisoners themselves.

    Yes, there is very likely covert religious discrimination. Yes, it's unfair. Yes, of course the prison system wants Wiccans and Pagans to just crawl away and quit bothering them.

    But /Rev. McCollum and his legal team are STILL gonna have to go at this matter much differently to win. Try, try again!!!

  • Rhett

    I must agree with AC above. Indeed, I doubt no part of Rev. McCollum's story, but this underscores the need to try again, to build better documentation of the CDCR's abuses, etc, and to then come in with something far more ironclad.

  • Patrick McCollum

    Rhett,

    Thanks for your comments. I’m a little confused though as you state that I/we need to build better documentation of the CDCR’s abuses and create a more Iron Clad case.

    We provided thousands of pages of direct evidence of the CDCR’s abuses, (other than the thousands of pages of evidense they admitted to shredding) including having first hand credible witnesses. Also, our case was supported by Supreme court precident and solid case law. The strategy and legal work were carried on by some of the foremost lawyers in the world, with interaction with some of the worlds foremost legal scholars and civil rights organizations. But the court ruled against us throughout the process never allowing us to present much of anything.

    As you will have seen if you’ve reviewed the actual thousands of pages of documents and briefs, and depositions, there has been one proceedural error after another, which is why we have persued the appeal process.

    That said, I of course want our community to peservere and am totally open to your help and expertise going forward. There are many inmates ready to sue who have made their way through the grievance process and both myself and I’m sure, the community will applaud you for taking their case. When can we meet so you can get things started? What exactly is your specialty in law, are you a civil rights or constitutional lawyer? What are some of the bigger cases you’ve won so I can look you up and get a sense of your strategies in court? Are you on the Bar of the U.S. Supreme Court? You seem very capable, do you have a firm?

    We have lots of evidence that will save you tons of expense, and I will personally assist in any way I can.

    Looking forward to your reply and hopefully working with you.
    Many Blessings,

    Patrick McCollum

    Many Blessings

    I’m genuinely pleased to find someone else to assist, and this

    • Rhett

      Hey there, Patrick.

      Let me clarify what was an unfortunately terse statement, as I'm quite aware that the bulk of your case has been in procedural struggles. So, let me try this again. I was actually referring to a handful of places in the 9th Circuit's opinion mentioning evidence related to your Equal Protection claim and later in your claims of retaliation. I do note, however, that you stated the 9th Circuit committed an error in thinking your Title VII claims were on appeal from summary judgement…was a similar error committed over your Equal Protection claims? (I'm looking at page 7176, which is page 19 in the PDF of the 9th Circuit's opinion) It mentioned the evidence available for that claim.

      I apologize for an excessively brief remark suggesting you didn't have documentation of the CDCR's abuses in general when, in all truth, I was referencing some smaller parts of the case in specific. I'm also quite sorry if you ever came to the impression that I'm a lawyer; I have made an effort to make the contrary clear. I also do wish for your success in dealing with your procedural struggles and I look forward to hearing about your next steps, and I also look forward to the day when I can analyze a ruling in your favor to our community.

    • elnigma

      Patrick McCollum,
      BB, I'm NAL or an expert, but I think the whole "standing" issue involves you representing a class action suit when you aren't either a prisoner (a plaintiff) or their lawyer. You are seeking to be a compassionate person and people listen to you as a spokesperson about said subject but you can't claim their problems are legally your own.
      You'd have standing if you sued on the basis of employment discrimination, because that was done against you.

      • Rhett

        Actually, McCollum has sued on the basis of employment discrimination. That's listed in the claims brought to the 9th Circuit.

  • Bmcgraw

    A.C.–You might want to read Patrick’s statement. Then you would know that his case included a class action by the inmates!

  • http://www.magickal-media.com A.C. Fisher Aldag

    Actually, I don't believe that it did. Rev. McCollum seemed to be suing on behalf of the inmates. This is different than all of the Wiccan, Pagan, Heathen and Polytheistic inmates getting together, signing a paper, stating that they need a Pagan chaplain, and they want Rev. McCollum to be that chaplain, and further, their rights are being trampled because of it.

    Then the prisoners involved in the class action suit have to be specific on how their First Amendment rights against establishment of religion, and for free exercise, are being violated. Being specific. For instance, my ol' man has tried repeatedly to get an Asatru blessing bowl for worship purposes, that he will pay for himself, which isn't considered an item that endangers the prison system, himself, or other inmates. He's been repeatedly refused, on the grounds of "you don't need that cuz it ain't a real worship item". He could write about how having a chaplain would address this requirement for his religion… help in obtaining a necessary religious item. Others might write about not having anyone to lead worship rites, not being allowed to celebrate holidays, not getting books, etc. etc. THEN it goes back to court in an entirely new case, on entirely new grounds…

    Yes, Rev. McCollum has grounds, he has several valid complaints. Standing is a technicality. For example, if I tried to sue a manufacturing corporation for pollution in the county they polluted, rather than in the county of their home office, I'd lose on standing.

    My suggestion would be taking out ads in various newsletters received by CA prisoners… CA Lifer Newsletter, Prison Times, and there are several others, one even for woman inmates, saying something like "Wiccans, Pagans, Asatrur / Heathens, Polytheists, do YOU need a chaplain to help you gain YOUR religious rights?" then telling them, briefly, about the struggle, and asking them to sign up for the class action suit. The mailbox will totally overflow with requests to join a suit. Bet me.

    Another bonus is there would be accurate representation of just how many Pagans, Wiccans and Polytheists there are in CA prisons, because the numbers quoted seemed disproportionately low. There are at least 2,000 Asatru brothers incarcerated in CA.

    I'm not trying to be a snot, and NO, I haven't any legal training. I have, however, hired attorneys, won my various cases (sometimes out of court, sometimes at the level of local, federal and state statues, laws and ordinances being changed), made my opponents empty their coin purses, made them look stupid in the press, and frequently made them cry. Those are my credentials.

    My next suggestion would be suing the state of CA for employment discrimination under the Federal Equal Employment Act. The fact that they wouldn't even fork over an application violates SO many Federal laws…!

    These two lawsuits would have the potential to get really, REALLY expensive for the state, which is already bankrupt. It has the potential to generate beaucoup bad press. The case would likely be settled very promptly, well, as promptly as the slow grinding of law ever gets, out of court.

    I'm not trying to malign Rev. McCollum or his attorneys. They tried one way, fought the good fight, lost on a technicality. It happens. Now it might be time to attempt another attack, from a different perspective.

  • thorncoyle

    Here's a statement I posted on my blog yesterday, if anyone is interested: http://www.thorncoyle.com/2011/06/religion-expres

    Blessings- T>

  • Bmcgraw

    It is very important to read Patrick’s statement so that all of these inaccuracies can be cleared up. Then the advice you all have might be relevant to what is really going on.

    What is especially disturbing about this decision is that the court just assumed that the five faith inmates have free exercise rights to a chaplain. However, other than the Native Americans for the purpose of a settlement, none had to prove that right before getting a chaplain. The Pagans are being held to a higher and different standard than the others just by the mere fact that they have to prove their rights.

    Also, the legal press hasn’t seemed to notice the major implications of the court’s ruling that the five faiths have a first amendment free exercise right to a chaplain. That means every state in the 9th circuit’s jurisdiction has to provide a chaplain for each of those five faiths to serve their free exercise rights.

    That was the whole basis for the court’s exception to the neutrality and equality requirements of the law, including the employment law. I am not sure legal commentators here or in the legal press really thought through the implications of that.

  • http://www.magickal-media.com A.C. Fisher Aldag

    Read. Understood. This doesn't negate that the case was denied on standing. That also doesn't negate that the case can't be presented in this form, again. Am talking in terms of practicality, not philosophy.

    Overt discrimination on the part of the CDCR. Covert discrimination on the part of the court. Yeah, I get that. However, if the court rules that a case cannot be presented in a certain manner, then the plaintiff has to TRY something DIFFERENT or they're NOT gonna WIN, no matter how right, no matter how worthy their claim!

  • http://www.magickal-media.com A.C. Fisher Aldag

    Re-read everything… several questions:

    I get it now that the EEOC is the Equal Employment Opportunity Commission, or whatever it's called. Darned acronymns. Didn't understand that when I stated, above, that Rev. McCollum should sue the state for employment discrimination under the federal Equal Employment act… and I comprehend that he has done that… yet that wasn't part of the 9th court ruling on standing, right? Is this suit still going forward?

    Rev. McCollum and B McGraw are saying there was a class-action suit initiated…

    1.) Did prisoners themselves initiate the suit? From what I am reading, Rev. McCollum initiated the suit on the behalf of the prisoners… which isn't really a class-action suit.

    2.) Inmate Collins had his case bounced… if it was a class-action suit, how can that happen? When there is a class-action, usually the suit is presented in one name, like, Collins et. al, or McCollum et al; if one person loses, everyone loses. The court doesn't usually rule that Collins's case was invalid, while Jones and Smith's complaints are valid. They would bounce everyone involved.

    • Crystal7431

      "McCollum should sue the state for employment discrimination under the federal Equal Employment act… and I comprehend that he has done that… yet that wasn't part of the 9th court ruling on standing, right? Is this suit still going forward?" He did have standing to sue for employment. The court ruled against him for employment discrimination.

      • Rhett

        Indeed, and the Equal Protection claims and the ruling against them are on page 7176 (which is somewhere around 15-16 in the PDF of the opinion, I believe).

  • Crystal7431

    Thank you, Patrick, for all you have done and continue to do for our community.

  • Bmcgraw

    Rhett: There were two equal protection claims. One was equal protection as a job applicant. The other was equal protection as a volunteer. The first was denied ona kroon to dismiss. The second was decided on summary judgment. These two procedures were explained in Parrick’s statement so you can track back there to understand the role or lack of role of evidence for each.

    AC: Your understanding of the case comes from major misunderstandings of the case written by people who didn’t really understand the case. Patrick brought the case on behalf of himself and the inmates. There is longstanding precedent for third party actions like the part of the case that was on behalf of the inmates. The court declined to follow that precedent. The inmate class joined after about a year. They then were plaintiffs in their own right. The court ruled that Patrick had standing to bring his Title VII claim – employment discrimination under federal law.

    However, the court also ruled that Partrick’s case could not go forward until the inmates prove they have a first amendment free exercise right to a chaplain. As I have explained, this is a very strange ruling because: 1. The five inmates did not have to prove that. 2. This ruling created an exception to the usual equal protection requirements under the law. 3. It is extremely disturbing precedent to make one person’s rights dependent on another person’s rights.

    I hope this helps.

  • Bmcgraw

    That weird typo was caused by my auto correct. I meant to say: motion to dismiss.

  • http://www.magickal-media.com A.C. Fisher Aldag

    Rev. McCollum wrote me a nice letter saying that he'd tried most of what everyone had suggested, with no results. B. McGraw is correct in the assessment of the case and explanation to me. Thank you very much for straighening that out!

    The court apparently decided that the inmates hadn't any standing, either, based on testimony by the CDCR that they weren't being discriminatory. Kinda like giving the fox the keys to the henhouse.

  • Anonymous

    The PDF file doesn’t work! I’d love to read it. Thanks.

    • http://www.wildhunt.org/blog/ Jason Pitzl-Waters

      I’ve re-uploaded it, so it should work now.

      • http://www.facebook.com/Christopher.Blackwell1945 Christopher Blackwell

        Jason I contacted Patrick and he gave me permission to reprint in in ACTION. I credited Wild Hunt for first publishing and put the Addy for this page.

        • http://www.facebook.com/Christopher.Blackwell1945 Christopher Blackwell

          Editor’s note,
          I first learned of Patrick McCullon’s statement about the 9th Circuit Court decision against him over on Witches’ Voice, Inc. Facebook page and it was first published on The Wild Hunt. I highly recommend both sites online.

  • reddesertabode

    The PDF file doesn’t work! I’d love to read it. Thanks.

    • http://www.wildhunt.org/blog/ Jason Pitzl-Waters

      I’ve re-uploaded it, so it should work now.

  • http://www.facebook.com/profile.php?id=1588791906 Sandy Harris

    Looks like we can’t get to the older comments — or I just haven’t found the right link.

    • http://www.wildhunt.org/blog/ Jason Pitzl-Waters

      They are coming, the import to Disqus is going a bit slowly. Hopefully they should be back later today.

  • http://www.facebook.com/profile.php?id=1588791906 Sandy Harris

    Looks like we can’t get to the older comments — or I just haven’t found the right link.

    • http://www.wildhunt.org/blog/ Jason Pitzl-Waters

      They are coming, the import to Disqus is going a bit slowly. Hopefully they should be back later today.

  • http://www.facebook.com/profile.php?id=881620496 Melonie Newsome Narvestad

    Ok at the risk of sounding REALLY STUPID. I am pretty sure I get it but just in case can someone dumb it down for me? I know I know I shouldn’t admit to needing it dumbed down but I was always taught that there r not stupid questions just ppl afraid to ask. So again will someone dumb it down for me? my email is gothglam76@hotmail.com. Thank you in advance

  • Ceinan / Dennis

    I just came across this wwws.whitehouse.gov/petitions#!/petition/bar-courts-and-lawmakers-creating-second-class-religion-status-minority-religions-wicca-neopaganism/SKGx6wJV as it floats around FB in the pagan circles I frequent.

    I feel that this is in some ways undermining Patrick’s fight, since it is inaccurate in some ways -as I understand the LEGAL issue, not the emotional one. Anyone seen this and knows what is it supposed to truly do? Where it started? I have not had time to look into it yet, and my friends who did say that there is no info on it there.