Ten Commandments and the Seven Aphorisms of Summum

In an unusual order, the Tenth Circuit divided equally in a decision over whether to rehear a case en banc. The equally-divided order means the request to rehear the case was denied and the panel opinion was affirmed. The Court's specific holding will be addressed below, but a bit of background appears to be in order.

The panel opinion involved a request by "Summum" -- a religious organization -- to post a monument containing the "Seven Aphorisms of Summum" in a city park. The panel's opinion does not provide any detail regarding the tenets of Summum, but one website indicates that the philosophy/religion stems from its founder's (Claude "Corky" Nowell) encounter with beings he describes as "Summa Individuals." According to Nowell, these beings "presented him with concepts regarding the nature of creation, concepts that have always existed and are continually reintroduced to humankind by advanced beings who work along the pathways of creation." The Seven Summum Principles are known as Pscychokinesis, Correspondence, Vibration, Opposition, Rhythm, Cause and Effect, and Gender.

Well, among other things, the followers of Summum also believe that Moses was given both a "lower" and "higher" knowlege from a divine being. The lower knowledge refers to the more widely known "Ten Commandments," while the higher knowledge refers to the "Seven Aphorisms." Apparently, when Moses first descended from Mount Sinai, he had with him the higher law -- a law the Israelites were unable to understand because of their under-developed condition. Moses therefore returned to Mount Sinai and descended with the lower law, which was much easier for the Israelites to understand. The Summum website indicates that "many people are not ready to understand the aphorisms carved on those first tablets."

The panel's decision involves a free speech issue only -- whether a City violated the Summans' free speech rights when it refused it the opportunity to post the Seven Aphorisms in a city park, when the City had otherwise allowed the posting of the Ten Commandments.

The Court was forced to address whether the city park was a "public forum" for purposes of free speech analysis. Following an exhaustive analysis, the Court found that the city park was a "traditional public forum," and, therefore, restrictions on speech were subject to strict scrutiny and "content-based restrictions are presumptively invalid." Only if the government shows that the restriction is necessary to "serve a compelling state interest and that it is narrowly drawn to achieve that end" will it survive strict scrutiny." The city had failed to justify the restriction under that standard. The city's desire to "promote its own history" was insufficient -- the city can promote that goal by a number of means, but not by restricting access to a public forum traditionally committed to public debate and the free exchange of ideas.

The City sought rehearing en banc, which was denied on an equally divided vote. Judge McConnell, who was widely regarded as a potential Supreme Court candidate upon the death of Chief Justice Rehnquist and resignation of Justice O'Connor, dissented from the denial of rehearing en banc. He stated that "neither the logic nor the language of these Supreme Court decisions suggests that city parks must be open to the erection of fixed and permanent monuments expressing the sentiments of private parties. By their policies or actions, governments may create designated public forums with respect to fixed monuments, but -- contrary to these opinions -- the mere status of the property as a park does not make it so." Judge Lucero likewise dissented, but on different grounds. He argued that the park was a "limited public forum." In those situations, local governments are permitted to make "content-based determinations about what monuments to allow in such space, but may not discriminate as to viewpoint."

Two other recent appointees to the Court -- Judges Gorusch and Holmes -- also would have reheard the case en banc.

The issues at stake apparently caught the Supreme Court's eye, because they have elected to review the Tenth Circuit's opinion, granting certiorari on March 31, 2008. The Court will hear oral arguments on the case on November 12, 2008. More information on the case can be found here and here.

3 Random New Decisions

In Snyder v. Maldonado, the Supreme Court reversed a defense verdict in a trucking case, finding that the trial court erred in submitted a contributory negligence jury instruction. The defendant claimed that the passenger-plaintiff was contributorily negligent because she failed to react and/or warn the driver that the driver was crossing the center line. The Court however found that there was a "complete absence of direct evidence that the passenger was negligent." The Court created new law by stating that the "realities of modern driving are such that a passenger cannot safely be an active participant under normal circumstances . . . A passenger's duty is fulfilled under ordinary circumstances by determining, before becoming a passenger, whether there are any conditions that warrant a heightened level of responsibility. Having done so, however, passengers should be permitted to relax and look around, read, or even sleep, unless something changes in the interim that would alert a reasonable passenger to exercise greater vigilance." The Court reversed for a new trial.

In Bray v. St. John, the Supreme Court reversed a summary judgment in a premises liability case. There, the plaintiff was a business invitee of St. John, and was abducted from the defendant's hospital garage and raped. The Supreme Court found that there were questions of fact regarding whether the precautions St. John undertook were adequate to provide reasonable protections to the business invitee. St. John maintained security monitoring of the garage, but questions existed about whether the security system was adequate in that (1) St. John only had one monitor dedicated to the garage at the time the assailant circled the garage unnotice with his tag obscured by duct tape, and (2) St. John had several incidents occuring in parking lots and garages during the year previous to the abduction and rape, including assault, battery, abduction, robbery by force and/or armed robbery. The Court adopted all of comment f to section 344 of the Restatement (Second) of Torts, finding that a possessor of lands may have a duty to prevent criminal conduct when "past experience" shows that there is a likelihood of such conduct occuring on the premises.

In Stipe v. State, the Court found that Senator Gene Stipe was entitled to his retirement benefits, even though he pled guilty to (1) conspiracy to violate the Fedearl Election Campaign Act (misdemeanor), (2) conspiracy to obstruct a federal election commission investigation (felony), and (3) perjury (felony). The Court held that the crimes to which Stipe pled guilty "do not facially constitute a violation of Stipe's oath of office." Because the crimes were unrelated to his oath of office, he was entitled to full retirement benefits.

Mutilation and Evisceration

In a recent case decided by the Oklahoma Supreme Court, the minority accused the majority of "mutilating" and "eviscerating" the standards normally applied to cases that reach the appellate court.

In Oklahoma Goodwill Industries, Inc., v. State ex rel. Oklahoma Employment Security Commission, the Goodwill industries argued that they did not have to pay certain unemployment taxes on consumers receiving rehabilitative or remunerative training while providing services at Tinker Air Force Base and in Oklahoma state offices pursuant to federal and state contracts mandating that individuals with severe handicaps or disabilities be utilized in performing contract services. The trial court agreed with Goodwill. The Oklahoma Employment Security Commission (OESC) appealed, arguing for the first time on appeal that Goodwill should be bound by the OESC's long-standing (30 year) interpretation of the relevant statute (which was, not unsurprisingly, that such employees were covered employees for purposes of unemployment taxes).

Justice Opala wrote the majority opinion, and was joined by Justices Hargrave, Edmonson, Kauger, Taylor and Reif. The majority threw the OESC a bone. The Court determined that the record was not sufficiently clear to allow for a decision on appeal, and (contrary to normal appellate standards) allowed the OESC -- the appellant -- to return to the trial court proceedings and re-argue its case. The Court directed OESC to present its argument on its "long-standing" practice and even suggested that its "long-standing construction" would not be "cast aside without cogent reason."

This outcome was met with a fierce dissent drafted by Justice Watt. Justice Watt argued that the majority opinion eviscerated and mutilated the normal rule that issues not presented to the trial court would not be considered on appeal. Justice Watt suggested that the Court was basically giving the OESC "overs" or a "second bite at the apple" by allowing the OESC to develop theories first asserted in the appellate court. In each of the cases supporting Justice Watt's view, the justice was certain to make it clear that Justice Opala was violating Opala's own holdings in other cases. Justice Watt would have decided the merits of the appeal, and would have held that Goodwill was not required to pay unemployment taxes for the consumers at issues in the case.

Some of the dissent's concerns may be legitimate, in light of the fact that the appeal had been pending in the Supreme Court since August of 2005. A review of the court's docket reveals that the Court took almost two years to decide the case after all the appellate briefing had been accomplished. (Here is an interesting article on the Court's current caseload.)

A petition for rehearing has been filed by Goodwill, so the majority opinion still remains subject revision, alteration or even reversal.