Casey Luskin has a response to some of the criticisms that we and others have made against the DI's silly publicity stunt about the Kitzmiller decision. We've pointed out that courts use proposed findings of fact in this way all the time and that appellate courts are fine with it in almost all cases. But Luskin claims that, no, "[t]he Third Circuit, which governs all federal courts in Pennsylvania, has strong law discouraging judges from simply adopting 'verbatim or near verbatim' the findings of fact of parties in a case." This, as we would expect, is not really accurate.
Luskin cites Bright v. Westmoreland County, 380 F.3d 729 (3rd Cir. 2004), but the Bright court noted that "we are not dealing with findings of fact. Instead, we are confronted with a District Court opinion that is essentially a verbatim copy of the appellees' proposed opinion." Id. at 732.
That's completely different than what we have in Kitzmiller. An opinion includes both the findings of fact and the conclusions of law. Not even the DI's "study" shows that Judge Jones' opinion was somehow copied from the plaintiffs: it only shows that the judge adopted the findings of fact which were prepared by the plaintiffs---a procedure that the Bright case accepted as legitimate: "the linchpin in using findings of fact," the court noted, "even when they are verbatim adoptions of the parties' proposals, is evidence that they are the product of the trial court's independent judgment." Id. at 732. The Kitzmiller decision is filled with evidence that Judge Jones exercised his independent judgment.
In Bright, the trial judge "indicated that [he] was going to grant appellee's motions to dismiss before it even received Bright's response to those motions. Indeed, Bright claims, again without a rebuttal, that he did not have the opportunity to object or even respond to the submitted opinion and order before the District Court adopted them as its own." Id. The appellate court in Bright included the text of the trial judge's order and the proposed order, so that readers could be clear what that case was about. You can read it for yourself and see. Unlike the case here, the plaintiff drafted a complete judicial opinion, including the findings of law and beginning even with "This case arises from the tragic death of..."---unlike the proposed findings of fact that the plaintiffs offered in Kitzmiller, which were plain, perfectly acceptable statements of proposed findings of fact. Again, you can read Bright online yourself, and see the distinction.
In a later case, the Third Circuit upheld a trial court's decision, in which the judge adopted large portions of the proposed findings of fact. It rejected the claim that this was improper. In words that could be equally applied to Kitzmiller, the Court explained:
The district court's order adopted, almost verbatim, the findings of fact proposed by Boeing. Relying on Bright...appellants maintain that by so doing the district court erred. We do not agree.
Here, unlike in Bright, we are convinced that the district court conducted an independent review of the case. The findings of fact are replete with citations to the record, and the court heard argument from the parties before issuing its opinion. Moreover, the district court had before it appellants' response to [the] "Statement of Undisputed Facts."
McClam-Brown v. Boeing Co., 142 Fed.Appx. 75, 76 (3d Cir. 2005).
None of the other cases Luskin cites support his attempt to portray Judge Jones as a puppet of the ACLU. In fact, they represent good old-fashioned quote mining, a skill well developed among creationists, I'm sorry to say. For example, he cites Anderson v. City of Bessemer City, 470 U.S. 564, 572 (1985), for the sentence: "We, too, have criticized courts for their verbatim adoption of findings of fact prepared by prevailing parties, particularly when those findings have taken the form of conclusory statements unsupported by citation to the record." Now, first of all, Judge Jones' opinion in Kitzmiller is full of citations to the record. Not even the DI report claims otherwise. Secondly, here's what the Supreme Court went on to say:
Nonetheless, our previous discussions of the subject suggest that even when the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous. United States v. Marine Bancorporation, [418 U.S. 602], 615, n. 13 [(1974)]; United States v. El Paso Natural Gas Co., 376 U.S.  656-657 [(1964)].
In any event, the District Court in this case does not appear to have uncritically accepted findings prepared without judicial guidance by the prevailing party. The court itself provided the framework for the proposed findings when it issued its preliminary memorandum, which set forth its essential findings and directed petitioner's counsel to submit a more detailed set of findings consistent with them. Further, respondent was provided and availed itself of the opportunity to respond at length to the proposed findings. Nor did the District Court simply adopt petitioner's proposed findings: the findings it ultimately issued---and particularly the crucial findings regarding petitioner's qualifications, the questioning to which petitioner was subjected, and bias on the part of the committeemen---vary considerably in organization and content from those submitted by petitioner's counsel. Under these circumstances, we see no reason to doubt that the findings issued by the District Court represent the judge's own considered conclusions.
Id. at 572-73.
The DI's publicity stunt isn't so Bright at all.