Supplemental Brief — Brown v. Gilmore

In The

Supreme Court of the United States

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ED BROWN, et al.,

Petitioners,

Vv.

JAMES S. GILMORE, III, et al.,

Respondents.

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On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

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SUPPLEMENTAL BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

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RANDOLPH A. BEALES

Attorney General

WiLutiAM H. Hurp

Solicitor General

Counsel of Record

BERNARD L. MCNAMEE

Deputy Attorney General

ALISON P. LANDRY

ANTHONY P. MEREDITH

Assistant Attorneys General

OFFICE OF THE ATTORNEY GENERAL

900 East Main Street

Richmond, VA 23219

(804) 786-2436

Counsel for Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES

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Edwards v. Aguillard, 482 U.S. 578 (1987) ..........45. 1

Lynch v. Donnelly, 465 U.S. 668 (1984) ................ 5

May v. Cooperman, 572 F. Supp. 1561 (D.N.J. 1985) ..... 2

May v. Cooperman, 780 F.2d 240 (3rd Cir. 1985)....... 2

Wallace v. Jaffree, 472 U.S. 38 (1985) .........000 3, 4, 5

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SUPPLEMENTAL BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

This supplemental brief is filed by the Attorney Gen-

eral of Virginia on behalf of all respondents (collectively,

“the Commonwealth”) in response to new matters

appearing in the reply brief of petitioners.

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ARGUMENT

a. In anew argument, petitioners misquote Edwards

v. Aguillard, 482 U.S. 578 (1987). In Edwards, the Court

discounted the post-enactment testimony of certain

experts and, in so doing, stressed that “none of the per-

sons making the affidavits produced by [Louisiana] par-

ticipated in or contributed to the enactment of the law or

its implementation.” Id. at 595-96 (emphasis added). In

quoting this passage, petitioners chop off the last three

words. See Reply Brief of Petitioners (“Reply Br.”) at 3.

The omission is significant because much of the expert

testimony relating to secular purposes was provided by

Dr. Jo Lynn DeMary, the State Superintendent of Public

Instruction, whose role in implementing the Act is uncon-

troverted. See Brief in Opposition (“Br. Opp.”), Statement

of the Case, {¥ 3, 5, 7a, 9 and 15.

Petitioners’ omission is part of their larger failure to

recognize what Edwards says about the sources to be

examined in discerning legislative purpose. Even in a

facial challenge, those sources include “interpretation by

a responsible administrative agency.” 482 U.S. at 594.

Here, the responsible administrative agencies include not

only the State Superintendent, but also the State Board of

Education that promulgated the guidelines reflecting the

secular purposes of the Act. See Br. Opp. at 5. Petitioners’

objections to the Commonwealth’s evidence are

unfounded.

b. Unlike the original petition, the reply brief

clearly shows that petitioners are counting on the admis-

sibility of newspaper articles allegedly providing evi-

dence of impermissible legislative purpose. See Reply Br.

at 3, n.3. (At the same time, petitioners fail to identify

what statements in the articles they want the Court to

consider.) Thus, while their “question presented”

addresses only the application of Wallace, this case is

likely to involve extraneous issues about the rules of

evidence and the scope of relevant “legislative history.”

See Rule 14.1(a).

Petitioners argue that the Court should consider such

newspaper articles based on the authority of May v. Coo-

perman, 780 F.2d 240 (3rd Cir. 1985). But a single circuit

court opinion is a very frail reed on which to base cer-

tiorari. Moreover, not even May says what petitioners

want it to say. In May, the Third-Circuit discussed - but

did not rule on - the hearsay objection, saying that the

appeal did not turn on that issue, and that the district

court’s findings would have been the same whether or

not the clippings were excluded. Id. at 252, n.9.!

1 Nor can petitioners take comfort in the decision of the

May district court that allowed the disputed newspaper articles

into evidence. The district court did so largely because “(t]he

New Jersey legislature does not preserve an official record of its

hearings and debates.” May v. Cooperman, 572 F. Supp. 1561,

1564 (D.N.J. 1985). In Virginia, unlike New Jersey, transcripts of

Petitioners’ desire to draw this Court into a long and

unavailing evidentiary excursion again shows that this

case is very fact-specific and that certiorari is ill-advised.

c. Petitioners also misquote Wallace - albeit in an

indirect quotation - when they say that “the Wallace

majority .. . unambiguously stated that, by including the

word ‘pray’ in a minute of silence statute, ‘the State

intended to characterize prayer as a favored practice.’ ”

Reply Br. at 9 (emphasis added), citing Wallace v. Jaffree,

472 U.S. 38, 60 (1985). The Court never said that “includ-

ing” the word prayer was a problem. The Court referred

instead to the “addition” of that word to a pre-existing

legislative scheme that already secured the right to pray

during an appropriate minute of silence. 472 U.S. at 59.

By contrast, before the 2000 amendment, the Virginia Act

did not secure that right for the many students who

attended schools where a “local option” minute of silence

had never been implemented.

what was actually said on the floor of the legislature are

available, and have been introduced into the record. J.A. 123-71,

314-42, 347-55. Contrary to petitioners’ suggestion, there is

obviously no need for a litigant to inquire into - much less

“contest” — the accuracy of matters that are not properly in

evidence.

2 Petitioners try to refute the Commonwealth’s concern

| about discrimination by noting that there were no problems in

connection with the minute of silence in those jurisdictions that

| implemented it under the pre-2000, local option version of the

Act. Reply Br. at 6, n.5. Their argument is a non sequitur. The

- pre-2000 version of the Act - like the current version - contained

the word “prayer” and, therefore, served notice that such

discrimination was not permitted during a minute of silence.

Petitioners fail to explain how such notice would be

communicated if the word were to be deleted from the statute.

d. Petitioners’ discussion of the word “may” in Wal-

lace is based on an incomplete - and highly misleading -

quotation of the sentence where this word is used. See

Reply Br. at 7, 8. The Wallace sentence in question reads:

“For even though a statute that is motivated in part by a

religious purpose may satisfy the first criterion, the First

Amendment requires that a statute must be invalidated if it is

entirely motivated by a purpose to advance religion.” Wallace,

472 U.S. at 56 (internal citation omitted) (emphasis

added). Petitioners chop off the italicized words where

the main point of the sentence is made. See Reply Br. at 8.

By obscuring both the Court’s main point and the sen-

tence structure, petitioners do not allow the word “may”

to be read in context. For a word like “may” with multi-

ple meanings, context is important. As one authority

notes: “May . . . can be used in a discussion rather like

although: to introduce a fact, when one is going to say that

the fact makes no difference to the main argument... .

[I]n this structure, may is often used to talk about things

that are definitely true, not just possible.” MicHaet

SWANN, Practica ENGusH Usace 327 (Oxford University

Press 2d ed., 1995) (1980).3 The sentence in question from

Wallace uses just such a structure and appears intended to

convey just such a meaning. When “may” is read in the

context used by the Court, it carries a meaning of defi-

niteness, not mere possibility, a conclusion consistent

3 An example given by this authority illustrates the point.

Consider the sentence: “It may be a comfortable car, but it uses a

lot of petrol.” This means: “I agree that it is comfortable, but...”

It does not mean: “There's a chance that it is comfortable. .. . ”

SWANN, supra, at 327 (emphasis added).

with Lynch v. Donnelly, 465 U.S. 668 (1984). See Br. Opp. at

17, 18.

Even if “may” is read as petitioners want it read,

their argument shows anew why their case is not worthy

of certiorari. They say “the Wallace decision recognizes

that a statute with mixed legislative motives may or may

not satisfy the First Amendment, depending upon the cir-

cumstances of the case.” Reply Br. at 8 (emphasis added).

By petitioners’ reading of Wallace, the decision whether a

statute passes the first prong of the Lemon test depends

on the specific facts of the case, without any principle of

general application. It is doubtful whether such a highly

fact-specific inquiry would be appropriate for certiorari

in any case. It is certainly not appropriate here in light of

the thorough factual analysis undertaken by the court of

appeals. See Fourth Cir. Op., Pet. 5a-10a, 14a-17a, 20a-24a.

Petitioners ask the Court to measure secular purpose

by developing some sort of new, percentage test not

found in Wallace. See Reply Br. at 7. Even if Wallace did

not foreclose such a test, it certainly would not require it.

Indeed, the holding in Wallace is cast in absolute terms,

saying that a statute fails the first prong when it has “no

secular purpose.” 472 U.S. at 56 (emphasis added). Since

petitioners candidly base their case on a new test not

found in Wallace, the decision of the court of appeals

plainly does not violate the holding of that case. Thus, by

their own brief, petitioners disprove the central argument

of their petition. Moreover, in order to consider the sort

of test sought by petitioners, the Court must step outside

petitioners’ narrow, Wallace-based “question presented.”

As previously noted, this would violate Rule 14.1(a), a

point that petitioners have not addressed - much less

refuted. For these reasons, too, certiorari is inappropriate.

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CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

RANDOLPH A. BEALES

Attorney General of Virginia

Wituiam H. Hurp

Solicitor General

Counsel of Record

BERNARD L. McNamez, II

Deputy Attorney General

A.uIson P. LANDRY

ANTHONY P. MEREDITH

Assistant Attorneys General

October 15, 2001