In a personal attack upon a dissenting judge, the Ninth Circuit panel in Quon v. Arch Wireless Operating Co., Inc. wrote this: “No poet ever interpreted nature as freely as Judge Ikuta interprets the record on this appeal. The dissent is not bound by the facts, even those found by the jury; nor is it confined to the actual fact-driven Fourth Amendment holding. The dissent’s lofty views of how the City of Ontario Police Department (OPD) should have guided the use of its employees’ pagers are far removed from the gritty operational reality at the OPD. I write only to correct the seriously flawed underpinnings of the dissent and to demonstrate that our opinion carefully and correctly applied the tests set forth in O’Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987). That our opinion follows Supreme Court precedent and accords with our sister circuits is obviously why this appeal failed to win the support of a majority of our active judges for rehearing en banc.” “The dissent selectively recites facts to support its disagreement with the outcome of our panel’s Fourth Amendment analysis (citation omitted). Set forth below are the key factual findings that the dissent either mis characterizes or over-looks entirely.” Apparently this injudicious and tactless arrogance did not persuade the Supreme Court. The Justices granted cert.; City of Ontario, Cal. v. Quon, 2009 WL 1146443 (C.A. 9). The Supreme Court reversed, City of Ontario, 130 S.Ct. 2619 (2010). Apparently the sarcastic and insulting personal attack, including its own careful consideration of the law was wrong. Just wrong.
Hust v. Phillips, 507 F.3d 1171 (9th Cir. 2009); Reversed by Supreme Court In Phillips v. Hust, 129 S.C 1036 (2009) the Supreme Court reversed the Ninth Circuit and that court rewrote its opinion, denied denied petitioner’s request, and confirmed the right of the librarian to qualified immunity; Below is the original Ninth Circuit opinion reprinted from an earlier Blog: February 3, 2009. Prisons are not for comfort, or literary pursuits. Prisons exist to punish those who have committed heinous crimes. For another example of wasting judicial resources, in Phillips v. Hust, 507 F.3d 1171 (2007) a Ninth Circuit panel criticized the librarian at a state prison for not permitting Phillips to use a copying machine to file his petition for certiorari in the Supreme Court. Although the Ninth Circuit never identified a date of Phillips imprisonment, the District Court referenced the eighteen years of litigation. The librarian denied the allegation. Moreover, the Ninth Circuit denied the librarian qualified immunity and sent the case back to the district court for computation of damages; Phillips v. Hust, 477 F.3d. 1070 (9th Cir. 2007). Award: $1500.00; Phillips v. Hust, 338 F.Supp.2d 1148. The dissent in the Ninth Circuit deplores the majority reasoning and its refusal to allow the librarian qualified immunity. Here is the language of the dissenting judge: All I can add to [the dissent of another judge] is my utter astonishment that were leaving an opinion on the books that not only denies the prison librarian qualified immunity but actually holds her liable. Her transgression? Failing to help a prisoner bind a brief in a way thats not even permitted . . . by the Supreme Courts rules. Its perfectly clear that a timely petition, bound or unbound, would have been accepted by the Supreme Court . . . How the prison librarian violated any of his rights, let alone his clearly established rights, is a mystery that repeated readings of the majority opinion do not dispel . . . The dissent was signed by a total of ten judges. The case arose on summary judgment but the Attorney General filed a petition for review in the Supreme Court. Review granted; January, 2009; 129 S.Ct. 1036 (2009). Petition Granted 1/26/2009: 129 S.Ct. 1036 (2009). Reversed. On remand to the Ninth Circuit the court granted librarian Hust’s motion for summary judgment; 588 F.3d 652 (9th Cir. 2009)
When drafting the First Amendment prohibiting the establishment of a national state church, the authors of the Constitution would never have anticipated the inordinate amount of litigation over judicial interpretation of the text. Because all schools in 1787 were private, no one worried about public assistance to private schools. And the first ten amendments to the Constitution applied only to the national government, not the states.
All that has changed since the Supreme Court “incorporated” the First Amendment into state law. Few would quarrel with an Establishmentment Clause violation if a State program provided outright gifts of public funds to private schools. But several states have attempted to offer an option to parents of children who elect to attend private schools, in most cases religious ones. Tax credits, vouchers and other alternatives survived the Establishment Clause in the decision of the Supreme Court in Zelman v. Simmons-Harris, 536 U.S. 639 (2002). The Court held that if the State offers vouchers to all school children who have an opportunity to participate, the program does not “establish” religion.
The Arizona Legislature enacted legislation allowing parents to set up a program, admittedly detailed, but essentially allowing school children to participate in alternatives to public schools and receive a tax credit. All children could participate in any school of their choice. The State did nothing more than offer parents an option they could elect for their children. . The Arizona Supreme Court upheld the program, (Kotterman v. Killian, 972 P.2d 606 (1999) yet dissatisfied taxpayers filed a claim in U.S. District Court alleging the Arizona program violated the Establishment Clause. The district court dismissed the case (Winn v. Hibbs, 361 F.Supp. 2d 1117 (2005) and the plaintiffs appealed to the Ninth Circuit.
Despite similarity of the Arizona program with the voucher system approved by the Supreme Court in its Zelman decision, a three judge panel of the Ninth Circuit held the statute violated the Establishment Clause. The Ninth Circuit refused to hear this case en banc, confirming again the animus toward religion that exists in that circuit. The dissenting judge dissected the reasoning of the three judge panel in an opening paragraph: “I dissent not only because Winn cannot be squared with the Supreme Court’s mandate in Zelman, but also because the panel’s holding casts a pall over comparable educational tax-credit schemes in states across the nation and could derail legislative efforts in four states within our circuit to create similar programs. In short, the panel’s conclusion invalidates an increasingly popular method for providing school choice, jeopardizing the educational opportunities of hundreds of thousands of children nationwide.” Not only is the Winn decision biased against religion as one judge noted in an unrelated case- the American people are not in danger of a theological jihad- by allowing a tax deduction but its decision overrules the Arizona Supreme Court in yet another example of disrespect to the shield of state sovereignty. Ten years after the Arizona Supreme Court upheld the legislation, a federal court of three unelected tenured federal judges dismantles the program.
Unexpectedly, the Supreme Court avoided the Establishment Clause and imposed the lack of standing on the challenge to the legislation, reversed the 9th Circuit, and salvaged the tax credit program; Arizona Christian School Tuition Program v. Winn, 131 S.Ct. 1436 (2011).