# Amicus Curiae Brief — Karcher v. May

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0099%3A07

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1987
- **Citation:** 484 U.S. 72

## Text

No. 85-1551

~* Supreme Court, U,
~ BILE D

MAY 29 war

Fithian! JR,

IN THE

CLERK

Supreme Court of the United States

OCTOBER TERM, 1986

>

ALAN J. KARCHER, as Speaker of the
New Jersey General Assembly, ef ai.,

—V.

Appellants,

JEFFREY MAY, individually, ef a/.,

Appellees.

ON APPEAL FROM THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF OF APPELLEES

=

JOHN A. POWELL

DAVID B. GOLDSTEIN

AMERICAN CIVIL
LIBERTIES UNION

132 West 43rd Street

New Yc k, New York 10036

(212) © 4-9800

ERIC NEISSER

ACLU OF NEW JERSEY

38 Walnut Street

Newark, New Jersey 07102
(201) 642-2084

NORMAN L. CANTOR*

RICHARD M. ALTMAN**

ANNE P. MCHUGH

PELLETTIERI, RABSTEIN
& ALTMAN

13 West Front Street

Trenton, New Jersey 08604

(609) 989-7000

Attorneys for Appellees

*On the Brief
**Counsel of Record

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QUESTIONS PRESENTED

1). Whether standing to appeal exists for an individual
legislator who originally entered the suit exclusively as a
representative of the New Jersey Assembly and whose succes-
sor as Official representative of that body has determined not
to pursue an appeal?

2). Whether the trial court correctly determined that New
Jersey’s minute of silence law constitutes an establishment of
religion because the Legislature’s actual purpose was to return
prayer to the schools and its proffered secular purpose was a
mere pretext?

3). Whether the direct and immediate effect of New Jersey’s
minute of silence law as enacted and implemented is to advance
religion?

4). Whether rule 52(a)’s “clearly erroneous” standard of
review applies to the District Court’s findings that A-1064 had
no secular purpose and was enacted to reintroduce school
prayer?

QUESTIONS PRESENTED

TABLE OF CONTENTS

Es Ci SEP R DEMME EM EEEED cccccccccsccscseccoseces

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT
I.

II.

BECAUSE THE ONLY PARTIES WITH
STANDING TO BRING THE CURRENT
APPEAL HAVE WITHDRAWN THE APPEAL,
THERE IS NO CASE OR CONTROVERSY
AND THE APPEAL MUST BE DISMISSED
FOR WANT OF JURISDICTION..............

THE DISTRICT COURT CORRECTLY FOUND
THAT THE PURPOSE OF THE NEW JERSEY
LEGISLATURE IN ADOPTING BILL A-1064
WAS AN’ IMPERMISSIBLE RELIGIOUS
PURPOSE—TO PROMOTE PRAYER IN THE
,. *§ @ & 9s | Se

A. The District Court Correctly Examined
Whether the New Jersey Legislature Acted
With an Illicit Purpose—to Promote and En-
courage Prayer—When It Adopted A-1064 ...

B. The Legislative H'story and Background of A-
1064 Demonstrate that A-1064’s Preeminent
Purpose was to Promote Prayer in the New
hy >. Serr

1. The District Court Considered Relevant,
Probative Evidence ..............+e8:.

PAGI

6

6

16

IV.

V.

ill

Nm

Legislative Process Demonstrating Illicit
CC itecl Gs. phd ie dd bles uanee ated

3. History of Prior Legislation Provides Ad-
ee eee

C. The Record Below Demonstrated that the Sole
Secular Purpose Advanced by the Legis-
lature—A Transition Period—Was a Pretext..

D. By Invalidating A-1064 Only After Finding
that the State’s Sole Asserted Secular Purpose
was a Pretext, and After Finding that the
Actual Purpose of A-1064 was Religious, the
District Court Correctly Applied the Purpose
Prong of Lemon v. Kurtzman..............

BILL A-1064 HAD THE DIRECT AND IMME-
DIATE EFFECT OF ADVANCING RELIGION
AND HENCE VIOLATED THE “EFFECTS
PRONG” OF LEMON KV. KURTZMAN ........

A. Under The Minute of Silence As Structured
Pursuant to A-1064, Some Teachers Would
Im vitably Utilize the Minute of Silence For
Prayer and Would Thus Influence Impression-
able Children to Engage in Prayer ..........

B. Because the Universal Public Perception of
A-1064 was That its Purpose was to Encourage
Prayer, That Law Had the Inevitable Effect of
PE ss cabccoceseneeasece

ON THIS RECORD AND AS A MATTER OF
ESTABLISHMENT CLAUSE JURISPRU-
DENCE, A-1064 CANNOT BE SUPPORTED BY
A LEGISLATIVE PURPOSE TO ACCOMMO.-
i ccc i kee weeheneneeensenes
THE DISTRICT COURT’S FINDINGS THAT
A-1064 HAD NO SECULAR PURPOSE AND
THAT ITS PREEMINENT PURPOSE WAS TO

PAGI

28

5 9g

3]

34

PAGI
REINTRODUCE PRAYER IN THE PUBLIC
SCHOOLS ARE FACTUAL FINDINGS SUB-
JECT TO RULE 52(a)’s “CLEARLY ERRONE-
OUS” STANDARD OF REVIEW «ccccccccsccss 38
EET ances pcbescécbascedwdedendectseoues 43

TABLE OF AUTHORITIES

Cases PAGE

Abington School Dist. v. Schempp, 374 U.S. 203

Dh 6a tec oedek Gad deel es 66406 0s 6 e4RS4 00 Kes 14, 16
AFGE v. Pierce, 697 F.2d 303 (D.C. Cir. 1982)........ 1]
Anderson v. Bessemer City, 470 U.S. 564 (1985)...... 39, 40,

41, 42
Arlington Heights v. Metropolitan Hous. Dev. Corp..,

se re ee ts a eee y 16
Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1985), vacated as

a ee Ge es PU EG bs 6 d'ccécccécepeseseéevas 1]
Bender v. Williamsport Area School Dist., 106 S. Ct.

PC Ciricalh ck Kies 6Gadceeebecnéduriavaue Ge
Bose Corp. v. Consumers’ Union, 466 U.S. 485

lr he ei ek Bie re lee ead 6, 38, 39, 40
Committee for Public Educ. v. Nyquist, 413 U.S. 756

I ee a Ee ee) ee Se ee aedes 28

Daggert v. Kimmelman, 617 F. Supp. 1269 (D.N.J. 1985) 8

Davis v. Preston, 280 U.S. 406 (1930)................ 8
Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526 (1979) 40, 41
Diamond v. Charles, 106 S. Ct. 1967 (1986) .......... passim
Duffy v. Las Cruces School Dist., 557 F. Supp. 1013
OE eee - a
Engle v. Vitale, 370 U.S. 421 (1962) .................29, 37
Epperson v. Arkansas, 393 U.S. 97 (1968) ............ 16

Federal Energy Admin. v. Algonquin Inc., 426 U.S. 548
DS cheCVA bh ob sd Sete eee ukeeeseetea sbusseeen’s 16

Vi
PAGI
Gaines v. Anderson, 421 F. Supp. 337 (D. Mass. 1976). 30
Grand Rapids School Dist. v. Ball, 473 U.S. 373 (1985) 31

Grosjean v. American Press Co., 297 U.S. 233 (1936).. 16
Hall v. St. Helena Parish School Bd., 197 F. Supp. 649
I a i Oe rn 4 wcdias eis 27
Hobbie v. Unemployment Appeals Comm’n, 107 S. Ct.
PP teccn. wet Cah ase Ue eens bhe Ween a bhese oe 35
Hunter v. Underwood, 471 U.S. 222 (1985) .......... passim

Karen B. v. Treen, 653 F.2d 897 (Sth Cir. 1984), aff’d

ce es Ee IG wo e'nn's 68 de tus ceeparodns 14
Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974) ... 1]
Kentucky v. Graham, 473 U.S. 159 (1985) ............ 8
Korioth v. Briscoe, 523 F.2d 1271 (Sth Cir. 1975) ...... 10
Lavender v. Kern, 327 U.S. 645 (1946) ............... 18
Lemon v. Kurtzman, 403 U.S. 62 (1971) ............. passim
Lynch v. Donnelly, 465 U.S. 668 (1984). ............. passim
Maine v. Taylor, 106 S. Ct. 2440 (1986) ..............39, 40
Malnak v. Yogi, 592 F.2d 197 (3d Cir. 1979)........... 37

McCollum v. Board of Educ., 333 U.S. 203 (1948) ..5, 29, 33
McRae v. Mathews, 421 F. Supp. 533 (E.D.N.Y. 1976),

rev'd on other grounds, 448 U.S. 297 (1980) ........ 1]
Miller v. Fenton, 106 S. Ct. 445 (1986)...............: 39, 40
Moore v. House of Representatives, 733 F.2d 946 (D.C.

eh I Fou 5 54 acdsee bed eka s ba eked Mae een es 40 1]
Opinion of the Justices, 440 N.E.2d 1159 (Mass. 1982). 29
Poe v. Uliman, 36/7 U.S. 497 (1961). 0... cc cccccccces 12

Poovey v. Edminsten, 526 F. Supp. 759 (E.D.N.C. 1981) 1]

PAGI
Pullman-Standard v. Swint, 456 U.S. 273 (1982)....... 4]
Rogers v. Lodge, 458 U.S. 613 (1982)............. 15, 41, 42
Schweiker v. Wilson, 450 U.S. 221 (1981) ............ 20
Smuck v. Hobson, 408 F.2d 175 (D.C. Cir. 1969) ...... 10
Stone v. Graham, 449 U.S. 39 (1980) ............. 16, 27, 35
Thornburg v. Gingles, 106 S. Ct. 2752 (1986) .........39, 42
United States v. O’Brien, 391 U.S. 367 (1968)......... 3
Wallace v. Jaffree, 472 U.S. 38 (1985) ............... passim
Walter v. West Va. Bd. of Educ., 610 F. Supp. 1169 (D.

Te Ws MD oo Se bdcosevccccweees TOptTROweberes cia an
Washington v. Davis, 426 U.S. 229 (1976) ............ 14
Witters v. Washington Dep’t of the Blind, 106 S. Ct. 748

eee eek hse hbeb ena eee eee ee ee 34, 35
Statutes and Rules
I anda ds wills 9 Wir dee 4 Wd, Waid eee Rk passim
NA TE are Umer ee Ae 6
i ka eee ed bg ewes hem 18
er 8
Re ee 25
Other Authorities
Dellinger, The Sound of Silence: An Espistle on Prayer

and the Constitution, 95 Yale L.J. 1631 (1986) ...... 36
Dessem, Congressional Standing to Sue, 62 N.D. L.

a ala ie ss wena sikh Coe Saas ae Ree weet 10

Drakeman, Prayer in the Schools: Is New Jersey’s Mo-
ment of Silence Law Unconstitutional? 35 Rutgers L.
SL oh dan au eed unseat todd been eeete des 21

Vill

PAGE
ee Fo ee re 13, 32
eee, SS IN. UU. E. BV. SEG CIFES). oc ccc cccccccscccs 33
Monaghan, Constitutional Fact Review, 85 Colum. L.
Ne Ml ie Bled 2 hails one visit he ou ee 40, 41
Raveson, Unmasking the Motives of Government
Decision-Makers, 63 No. Car.L. Rev. 879 (1985) .... 17
Stern, Gressman & Shapiro, Supreme Court Practice,
i Pi cath Lh uee ewan hes ebhbe bo been epee 8
Veto Messages of the Governor (1969).............45. 22

C. Wright, Federal Courts (4th ed. 1983) ............. 40

STATEMENT OF THE CASE

The history of this challenge to New Jersey’s minute of
silence law (hereinafter Bill A-1064) has been set out at length
in Appellants’ Brief and in the amicus brief of the Solicitor
General. Appellees here will simply highlight the chronology of
events involved in this litigation.

March 8, 1982: Bill A-1064, requiring a one minute period
of silence in every public elementary and secondary schcol in
New Jersey, is introduced. (J.S.A. 11la).' The bill succeeds Bill
A-2197 (1981), requiring a period of silence “not to exceed one
minute,” which had been vetoed by Governor Brendan Byrne
in May 1981 as “either unconstitutional or unnecessary.” (J.A.
399).

May 17, June 21, and September 23 (1982): Perfunctory
hearings are held before the Assembly Education Committee
(May 17), and before the Senate Education Committee June
21, September 23). (J.A. 268-70, 274-76, 406-07, 408-09). In all
these hearings, A-1064’s main sponsor, Assemblyman Zangari,
is the sole witness favoring the bill. There is no testimony from
any educator or psychologist indicating any non-prayer utility
of a minute of silence. Professional educators’ organizations
uniformly oppose the bill.

October 1982: Bill A-1064 passes the Assembly and Senate.

December 6, 1982: Governor Kean vetoes A-1064 on the
basis that legislators’ statements reveal “a constitutionally
impermissible motive” and-the bill is therefore “unlikely [to]
pass constitutional muster.” (J.A. 382-83). The Governor, a
teacher by training, also notes that teachers already have

I Appellees’ citation system is as follows: “J.S.A.” refers to the
appendix attached to Appellants’ jurisdictional statement. “Mot. to Dism
App.” refers to the appendix attached to Appellees’ motion to dismiss the
appeal. “J.A.” refers to the joint appendix filed in this Court. “J.A. 3d Cir.”
refers to the joint appendix filed in the Third Circuit. “R.” refers to the

transcript of the trial conducted by the district court.

discretion to use silence in the classroom when educationally

needed.

December 13 & 16, 1982: The Assembly and Senate over-
ride the Governor’s veto and A-1064 by its terms becomes
effective immediately. The override debates are short and
preoccupied with discussion of prayer in the classroom. (J.A.
36-37, 369-72, Plaintiffs’ Exhibits !-5, 10, 13, 15, 17).

December 17, 1982: The Deputy Commissioner of Educa-
tion notifies school districts that A-1064 has been adopted and
that “the statute should be permitted to speak for itself.” (J.A.
3d Cir. 19a). No implementing guidelines are promulgated.

December 22, 1982: In testimony before the Senate Judici-
ary Committee the State Attorney General explains his deci-
sion not to defend Bill A-1064. He relies on a seldom-used
discretion not to defend a state measure which he conscien-
tiously believes is unconstitutional. (Plaintiffs’ Supplemental
Appendix in May v. Cooperman, #83-89 (D.N.J. 1983), at
2-4).

January 10, 1983: Judge Debevoise issues a temporary
restraining order against implementation of A-1064, relying on
legislators’ reported public statements indicating that the bill’s
object is to return prayer to the schools. (J.A. 51-53).

January 18, 1983: The state Assembly and Senate, through
their presiding officers acting in a representative capacity, are
allowed to intervene to defend A-1064. (J.A. 54).

October 10, 1983: After a five-day trial, Judge Debevoise
finds that the Legislature’s sole proffered purpose for A-
1064—creation of a transition period—-is a pretext. The actual
purpose is found to be “religious”—meaning an effort to
return prayer to the schools in an unconstitutional manner.
(J.S.A. 86a-94a).°

"
This

32 No one has argued that the free exercise clause requires moments of
silence in the schools. Hence, a finding concerning establi nt here does
not infringe any citizen’s free exercise rights.

The Bose Court was obviously troubled by the fact that the district court
had created a rule of inference to determine actval malice, a rule with which
the Court disagreed. In this respect, Bose stands in stark contrast to the
district court’s finding of illicit purpose in the instant matter. That finding
was not based on any inferential rule of general applicability, but on a
specific conclusion that the asserted secular purpose of the legislation was a
pretext and on a record replete with direct evidence that the actual purpose of
the law was to return prayer to the public schools.

33 Whether the factual finding is grounded on credibility of witnesses,
documentary evidence, or inferences from subsidiary facts, the rationale for

the clearly erroneous standard 1s still arplicable.. See Anderson v. Bessemer
City, 470 U.S. 564, 573-74 (1985): see C. Wright, Federal Courts, € 96, at
648-49 (4th ed. 1983). But where, as here, findings also are grounded on

4]

Court has consistently indicated that district court findings
concerning illicit purpose of government decision-makers—for
example, purposeful racial discrimination—are subject to the
“clearly erroneous” scope of review. In Roberts v. Lodge, 458
U.S. 613 (1982), the “clearly erroneous” standard was applied
to a district court finding that an at-large election system had
been maintained by the governmental body for invidious pur-
poses. /d. at 622-23. That standard was applied not just to
subsidiary questions of fact, but also to the ultimate factual
inference of purposeful discrimination. /d. at 623-24. See also
Anderson, supra (government discrimination in hiring).

The same considerations dictating application of a “clearly
erroneous” standard to factual findings of racially discrimina-
tory purpose dictate application of an identical standard to
findings of religious purpose. See Lynch, 465 U.S. at 680-81;
id. at 704 n.11 (Brennan, J., dissenting). Both areas involve the
application of a settled constitutional norm to disputed facts—
grist for the mill of federal district courts. The substantive
issue under review here does not implicate the kind of fluid
constitutional norm which dictates independent appellate re-
view.” Jaffree fixes the relevant norm in administering the
“purpose prong” of establishment clause jurisprudence. A
legislative measure will be invalidated if shown to lack a
genuine secular purpose, or if “government’s actual purpose is
to endorse or disapprove of religion.” Jaffree, 472 U.S. at 60-
61.

assessments of the credibility of witnesses, the district court’s unique role
determining demeanor and tone of voice demands even greater respect under
Rule 52. Anderson, 470 U.S. at 574

34 “Treating issues of intent as factual matter
commonplace. In Dayton Board of Education Brinkmar
principal question was whether the defendants had intentionally maintair
racially segregated school system at a specified time in the past. W
nized that issue as essentially fact
Pullman-Standard v. Swint, 456 U.S. 273, 288 (1982)
3§ Tr ution and
Varta ndepe! dei ipp 5 M BS) 4

42

In the instant case Appellants advanced only one legislative
purpose before the district court—to impose a transition pe-
riod between the playground and the rest of the school day.
(J.S.A. 82a). After consideration of extensive evidence, includ-
ing the testimony of numerous witnesses, the district court
concluded that this rationale was an after-the-fact pretext and
that A-1064 therefore had no secular purpose. (J.S.A. 87a).
This finding constitutes a finding of pure fact. It encompasses
no legal standards; it is a factual rejection of the Appellants’
asserted rationale as a sham.

The district court also made a factual finding that the actual
purre-~ of A-1064 was to advance religion by reintroducing
pray: .9 the public schools. This issue of actual legislative
purpose is also a question of pure fact, based in turn on a great
number of subsidiary factual findings of the district court. It is
in no part a legal question, in no part a judicial balancing of
social values. It is a finding of the actual intent of a collective
body after an extensive evidentiary hearing by the court which
has the greatest expertise and experience in weighing the
evidence (and is in the best position to judge the credibility and
demeanor of the witnesses who testified). Cf. Anderson, 470
U.S. at 574. As such, the district court’s finding is indistin-
guishable from the countless findings of unconstitutional pur-
pose that have been reviewed by this Court under the “clearly
erroneous” standard. See, e.g., Thornburg v. Gingles, 106
S Ct. 2752 (1986); Rogers v. Lodge, 458 U.S. 613 (1982).

43
CONCLUSION
For the reasons set forth herein, the judgment of the Court
of Appeals should be affirmed.
Resp2ctfully submitted,

NORMAN L. CANTOR*

RICHARD M. ALTMAN**

ANNE P. MCHUGH

PELLETTIERI, RABSTEIN & ALTMAN
JOHN A. POWELI

DAVID B. GOLDSTEIN

AMERICAN CIVIL LIBERTIES UNION
ERIC NEISSER

ACLU OF NEW JERSEY

Attorneys for Appellees

*On the Brief
**Counsel of Record

May 1987

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0099%3A07. Public record. Not legal advice.