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The McCollum Case: A Call to Pagans Who Are in Law School

Author: Dana D Eilers
Posted: June 26th. 2011
Times Viewed: 3,876

For those of you who might not know, California Pagan inmates and Patrick McCollum, a Wiccan High Priest/clergyman, are embroiled in an important legal battle regarding the rights of Pagan inmates and the possibility of procuring a paid Wiccan clergyman for those inmates under an alleged state-wide prison policy which has established a paid chaplaincy program. Under this program, only five spiritual tradition have paid clergy: Protestants (received paid clergy in 1957) , Catholics (received paid clergy in 1957) , Jews (received paid clergy in 1957) , Muslims received paid clergy in 1981) , and Native Americans (received paid clergy/spiritual leader in 1989) .

In 1998, Patrick McCollum became a volunteer Wiccan chaplain in the California prison system. By February of 2000, McCollum was serving in this capacity in all 33 California prisons. On three occasions (1999, 2002, and 2003) , he inquired into a paid chaplaincy position and was allegedly told that he was ineligible to apply for a salaried chaplain position because he is a Wiccan and the CDCR (California Department of Corrections and Rehabilitation) limits salaried positions to clergy of the Five Faiths.

I say allegedly because, after reading the both the trial court and appellate court decisions, I do not see anything in these decisions that specifically sets forth who told McCollum these things, when they were said, and where they were said. It is entirely possible that the courts accepted these facts as true. Additionally, in reading these two decisions, I do not see a citation to the particular policy in question. I see quotes, which allegedly come from this policy, but there is no citation to the manual, regulation, statute, or whatever it is that actually contains the policy. I begin to think that the policy is a figment of the state’s imagination. Additionally, I do not see references to McCollum’s applications to become paid clergy or references the documents that denied his application (s) .

McCollum originally filed suit pro se on August 16, 2004 in the federal district court of California, northern district, cause no. C-04-3339 CRB. Eventually, McCollum obtained legal counsel (firms of Jones Day and Redgrave, Daley, Ragan, and Wagner, LLP) and on March 10, 2006, a Third Amended Complaint was filed. The case moved forward from there, and it is important to note that this matter never went to trial. On February 13, 2009, the federal district trial court entered its pre-trial rulings dismissing the case. The case was appealed to the 9th Circuit Court of Appeals, which filed its decision affirming the lower court’s dismissal on June 1, 2011. Presently, I do not know if plans to appeal to the United States Supreme Court are in place.

I will spare all of you the gruesome details of the decisions rendered by the federal district trial court and by the appellate court. Suffice to say that I found the decisions poorly written, lacking sufficient facts for a proper review, and poorly organized. Additionally, each court went out of its way to dismiss the case on procedural points such that the substantive, meaty issues of the case were not decided.

However, having spent my legal career working as defense counsel, I can tell you that this is the job of a defense lawyer: to see to it that your opponent loses. If you can get them to lose on technicalities, loopholes, procedural points, and threshold issues such as standing (are you the person who should bring the claim in the first place) , the statute of limitations (have you brought the case too late) , jurisdiction (does the court in which you filed have the authority to hear it) , and exhaustion of remedies (have you done everything you were supposed to do before you ever came to court in the first place) , then you have been an excellent defense attorney, and your client (whoever is paying you) will probably hire you again.

As someone who used to practice law in several litigation firms in St. Louis, Missouri with some of the best lawyers I have ever seen, several things are obvious to me here. First, some of the best case law regarding Pagans and their rights has come out of the prison systems. No matter what else, Pagan prisoners have been in the forefront of Pagan rights. They are responsible for some of the seminal cases regarding Pagan rights. Additionally, they have a long history of being like terriers in the pursuit of their rights. One Pagan plaintiff has spent nearly 20 years advocating for Wiccan religious rights in California prisons. See Rouser v. White, 2008 U.S. Dist. Lexis 107199 (E.D. CA, September 16, 2008) (the court detailed Mr. Rouser’s history of advocating for his religious rights in prison.)

Second, the lack of lawyers who are Pagan and who can assist with these cases is tragic. Legal representation is costly, and as this case demonstrates, these cases can span many years. Now, lawyers are people, too, and have bills to pay, like everyone else. Free representation is probably impossible. Finding the money to fund something like the McCollum case boggles the mind.

Third, there is a genuine lack of Pagan legal resources for the lawyers who DO take up these cases in court. I doubt that there is a national list or pool of Pagan legal professionals anywhere. Having said this, I gratefully recognize that various Pagan organizations such as Lady Liberty League are a valuable resource and have been more than generous in lending their assistance.

Finally, there is a vast, untapped legal resource for cases, whether arising in the criminal or civil venues, in this country. That resource is the Pagan law student.

If you are a Pagan who is a law student, listen up. I went to law school. I wrote for the Law Review. Here is what I can tell you: the first year of law school is the hardest. This is where your skull, which is full of mush (according to the infamous Harvard contracts professor of THE PAPER CHASE) , is re-configured so that you think like a lawyer. This is where you learn the basics of law such as property, contracts, torts, and the essential constitutional law. This is where you learn how to research. The first year of law school is also Step One in how to write like an attorney.

After the first year of law school, things ease up a bit. Many law students take on a part-time job or start writing for a school legal journal. I knew students who did both. By the third year, you are preparing for the bar exam and believe me, the demands of school have lessened considerably.

As law students, you have access to resources: the law library, online legal research (online legal research programs can cost hundreds of dollars per month to the legal professional, but these services are free to law students through their law schools) , and discourse with your law school friends. As far as I know, my book PAGANS AND THE LAW: UNDERSTAND YOUR RIGHTS remains the only book of its kind–a scholarly, legal treatise on the civil rights of Pagans in America–on the market today. Law students could write legal articles addressing Pagan civil rights in journals, whether they are Pagan journals or legal journals. I highly recommend legal journals. They go on the legal research radar for lawyers who are handling cases involving Pagan civil rights. Especially, Pagan law students can write law review articles dealing with Pagan civil rights. Again, law review articles with their extensive footnotes and bibliographies go on the legal radar for practicing lawyers. With this research done, lawyers do not have to continually re-invent the wheel and can get on with the finer points of representation such as how to craft pleadings, how to draft interrogatories, and what questions to ask at depositions.

I realize that this is a lot to consider. I was in law school once, too. I struggled with all the issues that are out there for law students. I had a part-time job through some of law school, and I wrote/edited for the law review of my school. When it came time for me to write my law review article, I wish that there had been a topic that had inspired true passion in me, such as the legal rights of Pagans.

I also realize that there is a potentially frightening, underlying issue here: the “coming out” issue, the issue of being openly and publicly Pagan. This is a highly charged issue. It is a personal issue. Whether to be openly and publicly Pagan is a decision to be made by each individual according to the circumstances in which the individual exists. However, if you can do it, THEN DO IT.

So, I am putting the call out there to our Pagan youth who are in law school. When writing your articles, your papers, and your law review articles, consider topics that involve Pagan legal rights. Make the case FOR these rights. Get your stuff published and out there so that practicing attorneys who are working these cases right now have access to your research and your resources. It can help tremendously. I know how valuable a really good legal piece can be. I wrote one book, and it has helped a lot of people. Think of what you folks, today’s Pagan law students, could possibly do. It boggles the mind, and I happen to think that as modern Pagans, this is what we should be doing: boggling the minds of the mainstream out there. Proving that we exist, that we are legitimate, and that we have rights, too. I am inviting you, the Pagan law student, to be part of the fight.


Dana D Eilers

Location: North Chatham, Massachusetts

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