Two local newspapers which serve the Dover area have published articles making the same mistake when attacking Discovery Institute’s report, which found that 90.9% of Judge Jones’ section of the Kitzmiller ruling on whether intelligent design (ID) is science was copied verbatim, or near verbatim, from the ACLU’s Proposed Findings of Fact and Conclusions of Law.
The York Dispatch has two articles–an editorial and a news article, each of which rely upon ACLU attorney Witold Walczak justifying Judge Jones’ copying by saying, “This is something lawyers do routinely, precisely so judges can use them.” It should come as no surprise that Mr. Walczak is defending a ruling which copied a brief he probably helped write. The York Daily Record similarly cited attorneys noting that judges are allowed to rely upon the findings of fact from a party.
Yet our report acknowledges precisely that point, explaining that “[p]roposed ‘findings of fact’ are prepared to assist judges in writing their opinions, and judges are certainly allowed to draw on them.” Thus Mr. Walczak and the other critics misunderstand the report’s main point:
The extent of Judge Jones’ reliance upon the plaintiffs’ Findings of Fact and Conclusions of Law dwarfs the usual practice. 90.9% of his celebrated section on whether ID is science was taken essentially verbatim from the ACLU’s brief. The Third Circuit Court of Appeals, which governs all federal courts in Pennsylvania, held that it is “highly disapproved of” for judges to adopt wholesale the briefs of parties in a “verbatim or near verbatim” fashion. As legal scholar Bruce Green from the Louis Stein Center for Law and Ethics at Fordham Law School told the Associated Press, it is “not typical for judges to adopt one side’s proposed findings verbatim.” A 1964 U.S. Supreme Court case favorably quoted the famous jurist Judge James Skelly Wright explaining the danger behind the blanket adoption of party’s arguments:
I suggest to you strongly that you avoid as far as you possibly can simply signing what some lawyer puts under your nose. These lawyers, and properly so, in their zeal and advocacy and their enthusiasm are going to state the case for their side in these findings as strongly as they possibly can. When these findings get to the courts of appeals they won’t be worth the paper they are written on as far as assisting the court of appeals in determining why the judge decided the case.
(United States v. El Paso Natural Gas Company, 376 U.S. 651, 657, fn4 (1964) (internal citations and quotations omitted).)
While there is no question that Judge Jones agreed with the plaintiffs wholeheartedly, his copying of the ACLU diminishes the value of the ruling. It also seems clear that he engaged in an uncommon practice which is frowned upon by the higher courts of law which govern his own court.