Memo

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LONDON DIVISION

SARAH DOE and THOMAS DOE,

on behalf of themselves and their minor

child, JAN DOE,

)

Plaintiffs

)

v. Civil Action No. 99-508

)

HARLAN COUNTY SCHOOL DISTRICT;

and DON MUSSELMAN, in his official capacity

as Superintendent of the Harlan County

School District,

)

Defendants

__________________________________________)

Ê MEMORANDUM IN SUPPORT OF

DEFENDANTSâ MOTION TO DISMISS

INTRODUCTION

Come now the Defendants, Board of Education of Harlan County, Kentucky (ãHarlan School Boardä) and Don Musselman (named in his official capacity as Superintendent of the Harlan School Board), by counsel, and move the Court, pursuant to Rule 12 (b) (6) of the Federal Rules of Civil Procedure, to dismiss the instant Complaint for failure to state an claim upon which relief may be granted.Ê As reason therefor, Defendants state as follows:

STATEMENT OF AUTHORITIES

Catherine Millard, The Rewriting of Americaâs History (1991)

Church of the Holy Trinity v. United States, 143 U.S. 457 (1892)

Southern Pacific Co. v. Eshelman, 227 F. 928 (D.N.J. 19-)

Kelley v. Jackson, 206 Ky. 815, 268 S.W. 539 (19-)

People of State of California v. San Pablo & T.R. Co., 149 U.S. 308 (18-)

Mills v. Green, 159 U.S. 583 (19-)

Socialist Labor Party v. Gilligan, 406 U.S. 583 (19-)

U.S. v. Cleveland Trust Co., 392 F. Supp. 699 (N.D. Ohio 19-)

Marchand v. Director, U.S. Probation Office, 421 F.2d 331 (1st Cir. 19-)

Dresser Industries, Inc. v. U.S., 596 F.2d 1231 (- Cir. 19-)

Goodrich v. Gonzalez, 451 F. Supp. 747 (- D. N.Y. 19-)

Connolly v. Pension Benefit Guaranty Corp., 673 F.2d 1110 (9th Cir. 19-)

Sherry v. Neew York State Educ. Dept., 479 F. Supp. 1328 (- D. N.Y. 19-)

ASH, Inc. v. Mesa Unified School Dist. No. 4, 673 P.2d 934 (Ariz. 19-)

Locke v. Board of Public Instruction of Palm Beach County, 449 F.2d 359 (5th Cir. 19-)

Stone v. Graham, 449 U.S. 39 (1980)

Lenston v. Commonwealth, 497 S.W.2d 561 (Ky. 1973)

I Wharton's Criminal Law and Procedure (1957 ed.)

Washegesic v. Bloomingdale Public Schools, 813 F. Supp. 539 (W.D. 1993)

Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995)

A.C.L.U. v. Wilkinson, 895 F.2d 1098 (6th Cir. 1990)

Coles ex rel. Cloes v. Cleveland Bd. of Educ., 171 F.3d 369 (6th Cir. 1999)

Allen v. Wright, 468 U.S. 737 (1984)

Florida Audobon Society v. Bentsen, 94 F.3d 658 (D.C. Cir. 1996)

Asarco, Inc. v. Kadish, 490 U.S. 605 (1989)

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)

Whitmore v. Arkansas, 495 U.S. 149 (1990)

Warth v. Seldin, 422 U.S. 490 (1975)

Bender v. Williamsport Area Sch. Dist., 475 U.S. 534 (1986)

Cleveland Surgi-Ctr., Inc. v. Jones, 2 F.3d 686 (6th Cir. 1993)

O'Shea v. Littleton, 414 U.S. 488 (1974)

Association of Data Processing Serv. Org. v. Camp, 397 U.S. 150 (1970)

Haven Realty Corp. v. coleman, 455 U.S. 363 (1982)

City of Los Angeles v. Lyons, 461 U.S. 95 (1983)

Laird v. Tatum, 408 U.S. 1 (1972)

National Treasury Employees Union v. U.S., 101 F.3d 1423 (D.C. Cir. 1996)

Freedom From Religion Found., Inc. v. School City of Mishawaka, 13 F.3d 1052 (7th Cir. 1994)

Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982)

Ascarfa, Inc. v. Kadish, 490 U.S. 605 (1989)

Sirerra Club v. Morton, 405 U.S. 727 (1972)

Harris v. City of Zion, 927 F.2d 1401 (7th Cir. 1991)

American Civil Liberties Union v. City of St. Charles, 794 F.2d 265 (7th Cir. 1986)

Matter of Appointment of Indep. Counsel, 766 F.2d 70 (2d Cir. 1985)

People Organized for Welfare Rights v. Thompson, 727 F.2d 167 (7th Cir. 1984)

Harris v. McRae, 448 U.S. 297 (1980)

Board of Education v. Allen, 392 U.S. 236 (19-)

League of Women Voters v. Nassau County Bd. of Spervisors, 737 F.2d 155 (2d Cir. 1984)

Aguaye v. Richardson, 473 F.2d 1090 (2d Cir. 1973)

Warth v. Seldin, 422 U.S. 490 (1975)

Citizens Concerned for Separation of Church and State v. Denver, 628 F.2d 1289 (10th Cir. 1989)

Urban Contractors Alliance v. Bi-State Development, 532 F.2d 877 (8th Cir. 1976)

Greater Cincinnati Coalition for the HOmeless v. City of Cincinnati, 56 F.2d 710 (6th Cir. 1995)

Las Vieux Desert Band v. Michigan Gaming Control Bd., Ê172 F.3d 397 (6th Cir. 1999)

Doe ex rel. Doe v. Beaumont Ind. Sch. Dist., 173 F.3d 274 (5th Cir. 1999)

Napier v. Howthorn Books, Inc., 449 F. Supp. 576 (E.D. Mich. 19-)

Kulko v. superior Court of California, 436 U.S. 84 (19-)

Rosenberg v. Bricken, 302 Ky. 124, 194 S.W.2d 60 (19-)

McDonald v. Mabee, 243 U.S. 90 (19-)

Re. Johnson,167 U.S. 120 (19-)

Bennett v. Circus USA, 108 F.R.D. 142 (N.D. Ind. 19-)

62B Am Jur.2d Process (1990)

Perez Lopez v. Mangone, 117 F.R.D. 327 (D. Puerto Rico 1987)

Szabo v. Keeshin Motor Express Co., 10 F.R.D. 275 (- D. Ohio 1950)

Rule 4, F.R.C.P.

K.R.S. 271B 5.040

William S. Haynes, Kentucky Jurisprudence: Civil Procedure (1985)

Kurt A. Philipps, Kentucky Practice: Rules of Civil Procedure Annotated (5th ed. 1995)

72 C.J.S. Process (1987)

Boltes v. Estes, 158 F.R.D. 110 (S.D. Tex. 1994)

Crouch v. Boudy, 754 P.2d 1299 (Wash App. 1988)

Sawyer v. Sugarless Shops, Inc., 792 P.2d 14 (Nev. 1990)

Knott v. Jarboe, 58 Ky. 504 (1859)

Lillard's Ex.r v. Lillard's Ex'rs, 44 Ky. 340 (1845)

Chambers v. Thomas, 11 Ky. 268 (1922)

Croley v. Huddleston, 304 Ky. 811 (1947)

Adams v. Letcher County, 299 Ky. 171 (1944)

Miller v. Bank of New York (Delaware), 650 N.Y.S.2d 737 (A.D.2 Dept/ 1996)

Dotson v. Lustron, Inc., 271 S.E.2d 644 (Ga. App. 1980)

Brumlett v. District Co. of Marshall County, 557 P.2d 424 (Okla. 1976)

reilly v. Lasso, 339 A.2d 1057 (N.J. Super. 1979)

Chambers v. Thomas, 11 Ky. 269 (1811)

K.R.S. 158.195

New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921)

Kovacs v. Cooper, 336, U.S. 77, 95 (1949)

STATEMENT OF FACTS

This action arises out of a Complaint filed on November 18, 1999 by attorneys for the ACLU of Kentucky through alleged persons calling themselves pseudonymously Sarah Doe and Thomas Doe on behalf of themselves and their minor child, Jan Doe (hereafter "the Defendants"), against the Harlan School Board and Don Musselman in his official capacity as superintendent of the Harlan School Board.Ê That Complaint alleges generally that the Defendants have placed, or allowed to be placed, a number of plaques setting out "one version of the Ten Commandments" on the walls of various public schools in the Harlan County School District. The Plaintiffs allege that these displays of Americaâs precedent legal code in a Kentucky school house somehow violates the First and Fourteenth Amendments to the Constitution of the United States and 42 U.S.C. 1983, and ask the Court to enjoin their further display.

Since this action was filed, as responsible public school officials, the Harlan School Board has reviewed the ACLUâs Complaint against its historic display of the Ten Commandments in the Cumberland Middle School.Ê The Board met, deliberated and drafted a resolution on Thursday, December 30, 1999, to clarify its position and avoid any possible misunderstanding, and has expanded and supplemented the Boardâs authorization for teachers and principals to offer to display the Ten Commandments as reported and contained in the February 2, 1983 Congressional Record with other historical ãstateä documents of American and Kentucky civil government. See Resolution attached hereto and made a part hereof as Exhibit ___ and K.R.S. 158.195.

A photograph of the current historical document display in each of the six classrooms at Cumberland Middle School where the Congressional Record and several historical documents are displayed at the specific request of each such classroom teacher. Same is attached hereto and a part hereof as Exhibit ____. Each classroom display includes the Ten Commandments contained in the 1983 Congressional Record, Kentucky Statute (K.R.S. 158.195), and the composite document of the National Motto ãIn God We Trustä, Preamble to the Kentucky Constitution, and an excerpt from the Declaration of Independence.

A photograph of the current historical document display in the entry hall of Cumberland Middle School is attached hereto and made a part hereof as Exhibit ___. ÊFrom left to right: 1983 Congressional Record; quote by Kentuckian President Abraham Lincoln; the composite document of the National Motto, Preamble to the Kentucky Constitution, and an excerpt from the Declaration of Independence; The Mayflower Compact; the Harlan School Board Resolution; and K.R.S. 158.195.

First, Defendants have done nothing wrong, or unconstitutional as they have carefully followed the teaching of Stone v. Graham which fully authorizes the Ten Commandments to be displayed as part of a historical display or lesson involving American history or other government documents. There is nothing in the First or Fourteenth Amendments to the U.S. Constitution, or any United States Supreme Court Opinion construing those amendments which requires or even suggests that American history or historical documents with religious references therein must be altered, suppressed or censored or rewritten in anyway because those official or ãorganic utterancesä of American public institutions, political leaders and statesman, contain religious references contained in those historic documents.Ê The Harlan School Board Resolution adopted on Thursday, December 30, 1999, makes clear that its action of displaying the Ten Commandments was because those Ten Commandments displayed at three different locations in the U.S. Supreme Court Building are Americaâs precedent legal code for civil government and for civil and criminal codes of Kentucky and every other state.Ê Photographs and descriptions of the current historical government or state documents displayed in the entry hall of the Cumberland Middle School and in six (6) classrooms are attached hereto as Exhibits ___ and ___.Ê Each classroom and entry hall historic display of state documents includes American and Kentucky history as reflected in five historic documents containing ãthe writings, speeches, documents, and proclamations of the founding fathers and presidents of the United States; U.S. Supreme Court decisions; and acts of the U.S. Congress including the published text of the Congressional Record.äÊ K.R.S. 158.195.

Further, after review the said Harlan School Board finds the ACLUâs First and Fourteenth Amendment endorsement of religion allegation totally unfounded, and nearly ãabsurd,ä as the Ten Commandments contained in a display of historical documents constitute and are part of a ãstateä document rather than a ãreligiousä document, because of the Ten Commandmentsâ central role in the formation of American Civil Government and American common law, and as the foundation of the civil and criminal legal codes of each state including Kentucky, and also as the foundation legal code of the American Republican form of civil government.Ê Thus, America is referred to by Kentuckian President Lincoln, in the Gettysburg Address, along with most American government leaders for centuries, which is confirmed by Congress and President Eisenhower in law (36 U.S.C. € 172, et al.) as ãone Nation Under Godä; and for this reason the Ten Commandments are prominently displayed in at least three (3) separate places on the outside and inside of the United States Supreme Court Building in Washington, D.C. as uncontrovertable evidence that historically the Ten Commandments are the precedent legal code for American law, justice and civil government.Ê The fact that the Ten Commandments are so prominently displayed outside and inside the U.S. Supreme Court Building does not raise a First Amendment ãreligionä issue as to the Ten Commandments in that Courthouse, and neither constitutes a ãreligiousä expression nor converts the Supreme Court building into a ãchurch.ä See, Catherine Millard, The Rewriting of Americaâs History (1991), the Resolution of the Harlan School Board adopted December 30, 1999, which is attached hereto as Exhibit ___ and incorporated by reference herein.

Further, the ACLU spent years unsuccessfully making similarly unfounded claims in the state and federal courts in Alabama against Alabama state circuit court Judge Roy Moore for his ãunadornedä display of the Ten Commandments in his courtroom, and the federal and state courts in Alabama dismissed all of these allegations and the said display of the Ten Commandments continues, to this very day, in Judge Mooreâs courtroom.

Thus the Harlan School Board confirmed, after review of the ACLU Complaint, that it has every right to publicly display the Ten Commandments in a historical display in a public school in Kentucky, as the Ten Commandments are also the historical precedent legal code and foundation of the civil and criminal codes of Kentucky.Ê The Harlan School Board and Superintendent Don Musselman do not concede any wrongdoing or improper action in displaying the Ten Commandments as part of their larger duty to educate school children concerning the early history and foundational documents upon which American law and government rest; however, to avoid being misunderstood by anyone and to avoid similarly unfounded, protracted and needless litigation the Harlan School Board, including Defendant Musselman, wanting to be extremely clear on its right, duty and intent to similarly display the Ten Commandments as the central historic legal document of the ãstate,ä has set forth its historic reasons, and educational purpose in its Resolution of December 30, 1999.Ê This historic display of governmental or ãstateä documents includes a page from the February 2, 1983 Congressional Record which sets out the text of the Ten Commandments, as Congress and the President designated 1983 ãThe Year of the Bibleä in recognition of the historic ãrole which the Bible and the Ten Commandments have played in molding our American institutions and lawsä.

Accordingly, the Harlan School Board has now clarified and supplemented the (allegedly) offending display of the Ten Commandments (now displayed as contained in the Congressional Record) along with a display of other American historic documents and its Resolution also reflecting a few of the many authorities cited by the United States Supreme Court when it found in 1892, as a matter of law, fact and history that America is a ãChristian Nationä.Ê This historic view of Christianityâs influence on American law and institutions, including the Old and New Testaments and of course the Ten Commandments, and as the foundation of American common law and civil government was confirmed by the United States Supreme Court in Church of the Holy Trinity v. United States, 143 U.S. 457 (1892), attached as Exhibit __.Ê That unanimous decision has never been overruled, limited or even questioned for the issues cited herein: in its Opinion, the United States Supreme Court had occasion to examine the historic foundations of American law and public institutions, and held that:

...No purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people.Ê This is historically true.Ê From the discovery of this continent to the present hour, there is a single voice making this affirmation.Ê The commission to Christopher Columbus....recites that ãit is hoped that by Godâs assistance some of the continents and islands in the ocean will be discoveredä...The first colonial grant that (was) made to Sir Walter Raleigh in 1584,...and the grant authorizing him to enact statues for the government of the proposed colony provided that they ãbe not against the true Christian faith...äÊ The first charter of Virginia, granted by King James I in 1606, commenced the grant in these words...äin propagating of Christian Religion to such People as yet live in Darkness and miserable Ignorance of the true Knowledge and worship of God,ä

Language of similar import may be found in the subsequent charters of that colony,..in 1609 and 1611; and the same is true of the various charters granted to the other colonies.Ê In language more or less emphatic is the establishment of the Christian religion declared to be one of the purposes of the grant.Ê The celebrated compact made by the Pilgrims in the Mayflower, 1620, recites: ãHaving undertaken for the Glory of God, and Advancement of the Christian faith, ...a Voyage to plant the first Colony in the northern part of Virginia...ä

ãThe fundamental orders of Connecticut, under which a provisional government was instituted in 1638-1639, commence with this declaration, ã...And well knowing where a people are gathered together the word of God requires that to maintain peace and union....there should be an orderly and decent Government established according to God...to maintain and preserve the liberty and purity of the gospel of our Lord Jesus which we now confess...of the said gospel [which] is now practiced amongst us.

In the charter of privileges granted by William Penn to the province of Pennsylvania, in 1701, it is recited: ã...no people can be truly happy, though under the greatest Enjoyment of Civil liberties, if abridged of the Freedom of their consciences as to their Religious Profession and Worship...ä

Coming nearer to the present time, the Declaration of Independence recognizes the presence of the Divine in human affairs in these words:

ãWe hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.äãWe, therefore, the Representatives of the United States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name and by Authority of the good People of these Colonies, solemnly publish and declare,ä etc.; ãAnd for the support of this Declaration, with firm reliance on the Protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.ä

If we examine the constitutions of the various States we find in them a constant recognition of religious obligations.Ê Every constitution of every one of the forty-four States contains language which either directly or by clear implication recognizes a profound reverence for religion and an assumption that its influence in all human affairs is essential to the well being of the community.Ê This recognition may be in the preamble, such as is found in the constitution of Illinois, 1870: ãWe, the people of the State of Illinois, grateful to Almighty God for the civil, political and religious liberty which He hath so long permitted us to enjoy, and looking to Him for a blessing upon our endeavors to secure and transmit the same unimpaired to succeeding generation,ä etc.

It may be only in the familiar requisition that all officers shall take an oath closing with the declaration ãso help me God.äÊ It may be in clauses like that of the constitution of Indiana, 1816 Article XI, section 4: ãThe manner of administering an oath or affirmation shall be such as is most consistent with the conscience of the deponent, and shall be esteemed the most solemn appeal to Godä...We find everywhere a clear recognition of the same truth...because of a general recognition of this truth [that we are a Christian nation], the question has seldom been presented to the courts...

There is no dissonance in these declarations.Ê There is a universal language pervading them all, having one meaning; they affirm and reaffirm that this is a religious nation.Ê These are not individual sayings, declarations of private persons; they are organic utterances; they speak the voice of the entire people.Ê While because of a general recognition of this truth the question has seldom been presented to the courts, yet we find that in Updegraph v. The Commonwealth, it was decided that, Christianity, general Christianity, is, and always has been, a part of the common law....not Christianity with an established church...but Christianity with liberty of conscience to all men.äÊ And in The People v. Ruggles, Chancellor Kent, the great commentator on American law, speaking as Chief Justice of the Supreme Court of New York, said:

ãThe people of this State, in common with the people of this country, profess the general doctrines of Christianity, as the rule of their faith and practice...We are a Christian people, and the morality of the country is deeply engrafted upon Christianity, and not upon the doctrines or worship of those impostors [other religions]ä.

And in the famous case of Vidal v. Girardâs Executorâs this Court...observed:Ê

ãIt is also said, and truly, that the Christian religion is a part of the common law..ä If we pass beyond these matters to a view of American life as expressed by its laws, its business, its customs and its society, we find everywhere a clear recognition of the same truth.Ê Among other matters note the following: The form of oath universally prevailing, concluding with an appeal to the Almighty; the custom of opening sessions of all deliberative bodies and most conventions with prayer; the prefatory words of all wills, ãIn the name of God, amenä; the laws respecting the observance of the Sabbath, with the general cessation of all secular business, and the closing of courts, legislatures, and other similar public assemblies on that day; the churches and church organizations which abound in every city, town and hamlet; the multitude of charitable organizations existing everywhere under Christian auspices; the gigantic missionary associations, with general support, and aiming to establish Christian missions in every quarter of the globe.

These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation...we find everywhere a clear recognition of the same truth.

Such a historic display of state and national governmental documents in a school which necessarily contain Christian references for reasons recognized by the Supreme Court are now somehow alleged by the ACLU to be suddenly transmuted ipso facto into ãreligiousä or ãchurchä documents because of these references to God, the Bible or the Ten Commandments.Ê Leaders of the federal and state governments, Presidents, congressmen, senators, judges, have repeatedly recognized this as historically true, and that censorship of American legal and governmental history is not authorized by the First or Fourteenth Amendments because of religious references or even etiology in those historical state documents.Ê This principle is clearly enumerated and is also encouraged and authorized in public schools, by K.R.S. 158.195, as the ACLU of Kentucky has publicly conceded.

It is also expressly permitted by Stone v. Graham and its progeny, (see, Exhibit __, Resolution of the Harlan School Board).Ê The Ten Commandments from the Congressional Record and other historical state documents in a school building, particularly pursuant to K.R.S. 158.195, are there as ãstateä documents, and have a valid educational purpose because they depict Kentucky and American history and origins, for the same reason they are so similarly displayed in three (3) places in the United States Supreme Court Building and in Judge Roy Mooreâs courtroom.

As shown below, this ill-advised effort by the Plaintiffs to censor, rewrite or suppress American history because of putatively ãreligiousä references in historic ãstateä documents must be dismissed as failing to state a claim, and this intervening development of clarification and the Resolution of the Harlan School Board has also rendered the case moot.Ê Accordingly, the Defendants have moved the Court to dismiss the action.Ê As shown below, the Defendants are absolutely entitled to the relief which they seek.Ê Arguments of fact and law in support of the foregoing assertions are set out hereinbelow and also are contained in Defendantsâ Response to Plaintiffsâ Motion for Preliminary Injunction, to be filed herein and also incorporated herein by reference.

ARGUMENT

I. THE CASE IS MOOT

It is elementary that, in order to invoke the Courtâs jurisdiction as to a cause or right of action, there should be involved a real and existing controversy, requiring an adjudication of present rights.Ê Southern Pacific Co. v. Eshelman, 227 F.928 (D.N.J. 19-).Ê A party must seek some relief which may be granted, and not a mere declaration of right.Ê Kelley v. Jackson, 206 Ky. 815, 268 S.W. 539 (1925).

The function of a judicial tribunal is to determine real controversies relative to the legal rights of person or property, which are actually involved in the particular case before it, People of State of California v. San Pablo & T.R. Co., 149 U.S. 308 (1892), and to adjudicate these rights in such manner that the determination will be operative, final, and conclusive, by a judgment that can be carried into effect.Ê Mills v. Green, 159 U.S. 651 (1895).

Accordingly, courts are not empowered to decide abstract, hypothetical, or moot controversies, Socialist Labor Party v. Gilligan, 406 U.S. 583 (1972), or to render advisory opinions with respect to such controversies.Ê U.S. v. Cleveland Trust Co., 392 F. Supp. 699 (N.D. Ohio 1974).Ê In order to avoid deciding abstract questions, courts require that controversies be presented by parties who have a personal stake in their outcome, Marchand v. Director, U.S. Probation Office, 421 F.2d 331 (1^st Cir. 1970).

Therefore, courts generally will not consider past questions when all ground for controversy has been removed.Ê Dresser Industries, Inc. v. U.S., 596 F.2d 1231 (5^th Cir. 1979).Ê A case is moot when the issues have ceased to exist.Ê Goodrich v. Gonzalez, 451 F. Supp. 747 (E.D.N.Y. 1978).

Although a case may originally have presented an existing controversy, if before decision it has, through the act of the parties or other cause occurring after the commencement of the action, lost the essential character, it becomes a moot case or question which will not be considered by the court.Ê Connolly v. Pension Benefit Guaranty Corp., 673 F.2d 1110 (9^th Cir. 1982). Accordingly, an action or a cause of action may be mooted by intervening events, Sherry v. New York State Educ. Dept., 479 F. Supp. 1328 (W.D.N.Y. 1979), such as changes in the facts on which an action is based.Ê ASH, Inc. v. Mesa Unified School Dist. No. 4, 673 P. 2d 934 (Ariz. 1983).

This rule applies when there is a settlement between the parties or other disposition which secures to the plaintiffs the relief which they had sought.Ê Locke v. Board of Public Instruction of Palm County Beach, 499 F.2d 359 (5^th Cir. 1974).

In the case at bar, the Harlan County Board of Education has clarified the historic state purpose of its action in posting the Ten Commandments and has supplemented the Congressional Record plaque containing the Ten Commandments which is the subject of this action with a display of other U.S. historical documents.Ê The alleged controversy which gave rise to this controversy no longer exists, therefore, is no longer ãliveä, and the case must be dismissed as moot.Ê There was not before, nor is there now, a First Amendment issue regarding religion.Ê The history of American Government and law cannot and must not be suppressed or censored because of Christian or other religious content.Ê K.R.S. 158.195.

II. ÊÊÊÊÊÊÊÊÊÊÊ DEFENDANTS HAVE DONE NOTHING WRONG OR ILLEGAL,

AND HAVE EVEN COMPLIED WITH STONE.

The display of historical documents which the Harlan County Board of Education has placed in the public schools of that county obviously complies with the requirements of Stone v. Graham, 449 U.S. 39 (1980), on which the Plaintiffs rely.Ê The Stone Court stated ãThis is not a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization ethics, comparative religion, or the like.äÊ 449 U.S. at 42.Ê As in Lenston v. Commonwealth, 497 S.W.2d 561 (Ky. 1973) where the Kentucky Court characterized a similar complaint about the display of the Ten Commandments on a courtroom wall during a criminal case in Kentucky, the attack herein on the schoolhouse displays is also ã near frivolous.äÊ Kentuckyâs highest court held therein that:

Scott complains that the trial judge erred when he failed to remove a framed copy of the Ten Commandments from the wall of the courtroom.Ê His brief advises us that ãhis entire life had been in opposition to the Ten Commandments.äÊ There is no evidence that the jurors noticed or read the framed copy.Ê It would be difficult to procure jurors in this hemisphere or Europe who did not have some knowledge of the provisions of the Ten Commandments.Ê There was no pervasive religious atmosphere.Ê In our view, Scott was no more prejudiced than he would have been had he been tried in Londonâs Old Bailey with the sword of justice on the wall behind the judgeâs chair located in a building with an inscription on its entrance that counsels punishment of the wrongdoer.Ê We regard this assertion of error as near frivolous.

This is entirely consistent with legal histories and references which study the foundations upon whichÊ our government, common and statutory law is predicated.Ê See I Whartonâs Criminal Law and Procedure (1957 Edition), Section 15, pages 24-25, wherein it is stated that:

ãIt is commonly declared that Christianity is part of the law of the land.Ê Christianity is not, however, a state or official religion, nor are acts condemned as crimes merely because they violate religious laws.Ê Thus, a government will not prosecute as crime an act amounting to a denial of Christian dogma or a rejection of Christian sanctions.ä

ãIn all instances in which an act which affects religion in some way is condemned as a crime, it will be found that the act would be criminal even though it did not relate to a religion generally or to Christianity in particular.ä

The Sixth Circuit applied this principle in Washegesic v. Bloomingdale Public Schools, 813 F. Supp. 539 (W.D. Mich. 1993), affâd 33 F.3d 679 (6^th Cir. 1994).Ê That case concerned a public high school in Bloomingdale, Michigan, where a copy of an art work called Sallmanâs Head of Christ had been hanging on a hallway wall ãfor at least thirty yearsä.Ê The district court ordered the art work removed, and the Sixth Circuit affirmed this judgment.Ê There is a clear distinction between an imaginative work of art and the historic documents challenged in the present case.Ê Even the reasoning of the Court with reference to Stone, demonstrates why a contrary result is mandated herein.

Concerning Stone, the district court wrote: ãThe Court emphasized that the Commandments were not integrated into a particular course of study, and it found the effect of displaying the Commandments would be Îto induce the schoolchildren to read, meditate upon, perhaps to venerate and obeyâ themä.Ê It added: ãAs was the case with the Ten Commandments in Stone, the picture is not placed in a historical, ethical, or artistic context.Ê It stands alone on the school wall where its effect, if any, is to make children look at, meditate upon, and perhaps revere Jesus Christä.Ê 813 F. Supp. at 526-63.

Near the end of its opinion, the district court concluded: ãthe prominence of the picture in the hallway, the fact that it is no part of a larger display, and the fact that it is not incorporated into a class, lecture or other context has the effect of endorsing religion in general and Christianity in particularä.Ê 813 F. Supp. at 566.Ê However, it added: ãThis Court agrees that the cases may arise in which the stateâs involvement with religious objects is so peripheral that it passes Constitutional musterä.Ê Id.Ê

On appeal, the Sixth Circuit noted that the district court had cited Stone for the proposition that the posting of the Ten Commandments was ãimproper because they are undeniably religious and because they were not integrated into any course of studyä.Ê The court added that: ãAs in Stone, the portrait of Jesus is not integrated into any course of studyä.Ê 33 F.3d at 683.Ê Conversely, it is clear that the picture would have been permissible if it had been part of a larger display.

Moreover, the Stone Court found the display of the Ten Commandments in a schoolhouse unconstitutional because the disclaimer was ãin small print at the bottom of each displayä.Ê 449 U.S. 41.Ê The Harlan School Board, on the other hand, has posted a copy of its Resolution of DecemberÊ --, 1999, which makes abundantly clear its intention and purposes.Ê This Resolution is much stronger than a clearly legible disclaimer stating that the exhibit is a display of American historical documents.Ê K.R.S. 158.195, which authorizes the display of suchÊ documents in schoolrooms, forbids censorship of historic documents because of any religious content in such documents.Ê The copy of the Fiscal Courtâs resolution explains the historical significance to America and Kentucky of these documents.

Such a disclaimer was found sufficient to legitimize the display in Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995), which upheld the right to display an ãunadornedä white cross in the front of the Ohio State Capitol during Christmas season.Ê In his concurrence, Justice Souter specifically noted that this case was distinguishable from Stone because of the adequacy of this disclaimer.Ê 515 U.S. at 794, n. 2.

Moreover, in A.C.L.U. v. Wilkinson, 895 F.2d 1098 (6^th Cir, 1990), the Sixth Circuit distinguished Stone in approving a creche which had been erected on the steps of the Kentucky State Capitol.Ê It noted that the disclaimer in Stone was ãin small printä, and contrasted the creche disclaimer which was ãreadable from a moving automobileä.

In their Complaint, the plaintiffs have tacitly conceded that these additions would make a historic display of the Ten Commandments fully constitutional.Ê Plaintiffs specifically note in paragraph 11 of their Complaint: ãThe Ten Commandments display is unadorned by any surrounding text, documents or similar displays.Ê It is not part of any larger historical or educational display.äÊ This statement is not true. TheÊ walls of the Harlan County Public Schools have become a museum of historic documents and exhibits. Therefore, it is obvious that the Harlan County Board of Education was, and is , fully complying with any requirements of Stone, that the Plaintiffs acknowledge this fact, and that consequently there is no ãliveä case or controversy before the Court.

ÊThe display which Defendants have posted is authorized by, and fully complies with, the letter and spirit of the provisions of K.R.S. 158.195.Ê That statute, which was enacted by the Kentucky General Assembly in 1992, provides:

Local boards may allow any teacher or administrator in a public school district of the Commonwealth to read or post in a public school building, classroom, or event any excerpts or portions of: the national motto, the national anthem; the pledge of allegiance; the preamble to the Kentucky Constitution; the Declaration of Independence; the Mayflower Compact; the writings, speeches, documents, and proclamations of the founding fathers and Presidents of the United States; U.S. Supreme Court decisions; and acts of the U.S. congress, including the published text of the Congressional Record.Ê There shall be no content-based censorship of American history or heritage in the Commonwealth based on religious reference in these writings, documents, and records.

K.R.S. 158.195 authorizes the posting of these documents in schoolrooms and other public educational facilities.Ê Posting them in the public schools of Harlan County is entirely proper because of the historical and foundational nature of the Ten Commandments to American Civil government, justice and law, and as history does not and could not involve religion or offend the First Amendment.Ê The history of the American government and law cannot be properly understood without realizing that the Ten Commandments are the precedent legal code of America and of each state in the United States.Ê Therefore, posting of the Ten Commandments serves a historical purpose which thus is a purely secular purpose, and is authorized not only by the language of Stone and its progeny, but also is consistent with the spirit of K.R.S. 158.195.

There is no other case or statutory authority which restricts the posting of historic legal or other governmental documents in a courthouse, including an unadorned or single display of the Ten Commandments.

III.ÊÊÊÊÊÊÊÊÊÊÊ PLAINTIFFS MAY NO PSEUDONYMOUSLY INITIATE PROCEEDINGS AND ÊÊÊÊÊÊÊÊÊÊÊ THE COMPLAINT THEREBY FAILS TO STATE A CLAIM..

The Plaintiffs filed their Complaint under fictive names, and have moved the Court for leave to proceed anonymously. As shown below, the Plaintiffs have not shown that they are entitled to do so.Ê The Complaint fails to state a cognizable claim upon which relief can be granted.Ê The Court, therefore, should deny the Motion and Dismiss the Complaint with leave to refile under their true identities.Ê (Defendants in this regard incorporate by reference herein all of the arguments of fact and law set forth in their Response in Opposition to Plaintiffsâ Motion for Protective Order filed herewith.)

As the Plaintiffs have correctly noted: "Rule 10(a) of the Rules of Civil Procedure provides that a complaint shall state the names of all parties. The intent of the rule is to provide all parties with the identities of their adversaries as well as to protect the public's legitimate interest in knowing the facts at issue in court proceedings." ("Memorandum in Support of Plaintiffs' Motion for Protective Order," hereafter "Plaintiffs' Memo.," at 3, citing Rule 10(a), F.R.C.P.)

Defendants readily concede, indeed they insist, that such is the law. As the Eleventh Circuit has stated: "Trials are public affairs." Doe v. Frank, 951 F.2d 320, 324 (11th Cir. 1992) Therefore, public access to the names of plaintiffs "is more than a customary procedural formaility [since] First Amendment guarantees are implicated when a court decides to restrict public access to judicial proceedings." Doe v. Stegall, 653 F.2d 180, 185 (5th Cir. 1981); Doe v. Borough of Morrisville, 130 F.R.D. 612 (E.D. Pa. 1990)(lawsuits are public events and the public has a legitimate interest in knowing the pertinent facts)

In Luckett v. Beuadet, 21 F. Supp.2d 1029 (D. Minn. 1998) the court stated that there is a strong presumption against allowing parties to use a pseudonym in the complaint, since there is a

First Amendment interest in public proceedings, and identifying the parties is an important part of making it truly public. In Doe v. Sheriff of DuPage County, 128 F.3d 586 (7th Cir. 1997), the court stated that the use of fictitious names by litigants is disfavored, since litigation involves the public's business. Therefore, the court continued, unless exceptional circumstances are present, all parties must be identified.

The Sixth Circuit has not sanctioned fictive plaintiffs, and the overwhelming weight of precedent denies such a method asserting a claim.Ê As Prof. Moore has noted: "The Federal Rules of Civil Procedure do not explicitly authorize the use of fictitious names by plaintiffs or other parties asserting a claim for relief." James William Moore, Moore's Federal Practice € 10.02[2][c][i] at n.14 (3d ed. 1999)("use of fictitious names generally against public policy")

Therefore, a number of courts have held "that if a complaint does not identify any plaintiff in the title or otherwise, its filing is ineffective to commence an action under Civil Rule 10(a) of the Federal Rules of Civil Procedure." Francis M. Dougherty, Propriety and Effect of Use of Fictitious Name of Plaintiff in Federal Court, 97 A.L.R. Fed. 369 € 3 (1990).

The Plaintiffs have not cited any Sixth Circuit case permitting plaintiffs to use fictitious names, and Defendants know of none. The only time that the Sixth Circuit has considered such a request, it refused to permit pseudonymous filing. Akron Ctr. for Reproductive Health v. City of Akron, 651 F.2d 1198, 1210 (6th Cir. 1981). The Defendants therefore insist that, whatever may be the rule in the Fifth and Eleventh Circuits, at least in this Circuit, as in the Second, Fourth and Tenth Circuits, Rule 10(a) means exactly what it says, and any plaintiff who does not set out his true name in the caption of the complaint has failed to state a claim upon which relief can be granted.

The instant Plaintiffs have not set out their true names in the caption of their Complaint, and they have not offered to divulge their identities to either this Court or to the Defendants. Instead, this Court, and the Defendants, are asked to simply accept the unverified assertion of Plaintiffs' counsel that the Does are real and specific aggrieved individuals.

IV.ÊÊÊÊÊÊÊÊÊÊÊ PLAINTIFFS LACK STANDING.

There is yet another reason why the case must be dismissed, namely, because the Plaintiffs lack standing to bring this suit.Ê Standing addresses who may bring a legal action.Ê 28 USC €2201.Ê The standing inquiry requires careful judicial examination of a complaintâs allegations to ascertain whether the particular Plaintiff is entitled to an adjudication of the particular claims asserted.Ê Allen v. Wright, 468 U.S. 737, 752 (1984).

The Supreme Court has stated that of the several doctrines courts have recognized as manifestations of the case-or-controversy requirement, the requirement that a litigant have standing to invoke the power of a federal court is perhaps the most important.Ê Id., Florida Audubon Society v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 1996) (showing of standing is essential predicate to jurisdiction).Ê This is because, as the Court has stated, at its core standing involves a constitutional question.Ê Asarco, Inc.. v. Kadish, 490 U.S. 605, 613 (1989).

The party invoking federal jurisdiction has the burden of establishing the elements of standing.Ê Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).Ê To meet this burden, the litigant must clearly and specifically set forth facts sufficient to satisfy those Article III standing requirements.Ê Whitmore v. Arkansas, 495 U.S. 149, 155-56 (1990); Warth v. Seldin, 422 U.S. 490, 508, 518 (1975).Ê A federal court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations of standing.Ê Id.

The burden on the party asserting standing is ultimately more than a requirement of pleading.Ê It is, rather, an indispensable part of the case, and each element must be supported with evidence in the same manner as any other matter on which that party bears the burden of proof.Ê Lujan, 504 U.S.Ê at 561.Ê The burden is even greater when the Plaintiff is asserting third party rights.Ê Id., (when Plaintiff is not the object of the government action or inaction challenged, standing is more difficult to establish).

As the Supreme Court has explained:

When the suit is one challenging the legality of government action or inaction, the nature or the extent of facts that must be averred (at the summary judgment stage) or proved (at the trial stage) in order to establish standing depends considerably on whether the plaintiff is himself an object of the action (or foregone action) at issue.Ê If he is, there is ordinarily little questions that the action or inaction has caused him injury, and that a judgment preventing or requiring the action will redress it.Ê When however... a plaintiffâs asserted injury arises from the governmentâs allegedly unlawful regulation (or lack of regulation) of someone else, much more is needed.Ê In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction ÷ and perhaps on the response of others as well... [I]t becomes the burden of the plaintiff to adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressability of injury.

Lujan, 504 U.S. at 561.

In Lujan, the plaintiffs had challenged a rule promulgated by the Secretary of the Interior interpreting Section 7 of the Endangered Species Act of 1973 in a manner limiting the protective reach of that statute.Ê The plaintiff environmental organization asserted that such an interpretation would increase the rate of endangered and threatened species.Ê The Court indicated that to survive the Secretaryâs summary judgment motion, plaintiffs ãhad to submit affidavits or other evidence showing, through specific facts, not only that listed species were in fact being threatened...but also that one or more of [plaintiffâs] members would thereby be Îdirectlyâ affected apart from their Îspecial interest in th[e] subject.âäÊ This, the Court held, plaintiffs had failed to do.Ê 504 U.S. at 563, 119 L.Ed.2d at 366.

To have standing, a plaintiff must demonstrate ãinjury-in-fact.äÊ This means that the party seeking access to the federal court must have a ãpersonal stakeä in the matter to be adjudicated.Ê Lujan, 504 U.S. at 560 (injury must affect plaintiff in a personal and individual way).Ê At any irreducible minimum, Article III of the Constitution requires the party who invokes the courtâs authority to show that he or she personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the Defendant.Ê Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 542 (1986); Cleveland Surgi-Ctr., Inc. v. Jones, 2 F.3d 686, 688 (6^th Cir. 1993).

The injury-in-fact required for standing must be concrete in both qualitative and temporal senses.Ê The plaintiff must allege an injury that is ãdistinct and palpable,ä as opposed to merely abstract, OâShea v. Littleton, 414 U.S. 488, 494 (1974); Association of Data Processing Serv. Org. v. Camp, 397 U.S. 150, 153 (1970).Ê A ãdistinct and palpable injuryä represents the minimal constitutional requirement for standing in federal court.Ê Haven Realty Corp. v. Coleman, 455 U.S. 363 (1982) (Powell, J., concurring).

The actual injury component requires an injury to be ãreal and immediate,ä and actual or imminent, City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983), not merely ãconjecturalä or hypothetical.Ê Fulani v. Bentsen, 35 F.3d 49, 52 (2d Cir. 1994).Ê Therefore, the injury may be neither ãspeculative,ä ãremote,ä nor ãsubjective.äÊ Laird v. Tatum, 408 U.S. 1, 13-14 (1972).

Standing cannot be based on an injury that is purely abstract.Ê National Treasury Employees Union v. U.S., 101 F.3d 1423, 1429-30 (D.C. Cir. 1996)(frustration or organizationâs objectives is too abstract to confer organizational standing).Ê Purely psychological harm will not support standing.Ê Family & Childrenâs Ctr., Inc. v. School City of Mishawaka, 13 F.3d 1052, 1058 (7^th Cir. 1994); Freedom From Religion Found., Inc. v. Zielke, 845 F.2d 1463, 1467-68 (7^th Cir. 1988).Ê Claims of injury that are purely abstract, even if they might be understood to lead to ãthe psychological consequence presumably produced by observation of conduct with which one disagrees,ä Valley Forge Christian College v. Americans United for Separation for Church and State, Inc., 454 U.S. 464, 485 (1982), do not provide the kind of particular, direct, and concrete injury necessary to confer standing to sue in the federal courts.Ê Asarca, Inc. v. Kadish, 490 U.S. 605, 616 (1989).

As the Supreme Court has observed:

...a mere ãinterest in a problem,ä no matter how longstanding the interest and no matter how qualified the organization is to evaluate the problem, is not sufficient by itself to render the organization adversely affectedä or ãaggrievedä ... if a ãspecial interestä in this subject were enough to entitle the Sierra Club to commence this litigation, there would appear to be no objective basis upon which to disallow a suit, by any other bona fide ãspecial interestä organization, however small or short-lived.Ê And if any group with a bona fide ãspecial interestä could initiate such litigation, it is difficult to perceive why any individual citizen with the same bona fide special interest would not also be entitled to do so.

Sierra Club v. Morton, 405 U.S. 727, 739-40 (1972).

The requirement that the plaintiff allege an injury in fact excludes ãsimple indignationä as a basis for Article III standing.Ê Harris v. City of Zion, 927 F.2d 1401, 1405 (7^th Cir. 1991); American Civil Liberties Union v. City of St. Charles, 794 F.2d 265, 268-69 (7^th Cir. 1986)(ãto be made indignant by knowing that government is doing something of which one violently disapproves is not the kind of injury that can support a federal suitä).

Furthermore, standing is not measured by the intensity of the litigantâs interest.Ê Matter of Appointment of Indep. Counsel, 766 F.2d 70, 74 (2d Cir. 1985).Ê As the Seventh Circuit has stated:

In such a wealthy society as ours there is a great deal of money available for financing the promoters of causes, some of whom want to use the courts as well as public opinion and the legislatures to advance their goals.Ê If passionate commitment plus money for litigation were all that was necessary to open the doors of the federal courts, those courts, already overburdened with litigation of every description, might be overwhelmed.

People Organized for Welfare and Employment Rights v. Thompson, 727 F.2d 167, 172 (7^th Cir. 1984).

Applying these rules to the facts of the case at bar, it is clear that the plaintiffs have not alleged facts sufficient to confer standing upon them.Ê The only damage alleged by the plaintiffs is that they are ãoffended by the continued display and by having to view this displayä (Complaint, & 19).Ê The plaintiffs add that, consequently, they ãnow are suffering, and will continue to suffer, irreparable harm.äÊ (Complaint, ¶ 22).Ê It is clear, however, that the only ãharmä alleged by the individual plaintiffs is a purely ideological or psychological one.Ê As shown above, such abstract ãharmä is absolutely insufficient to confer standing upon a plaintiff.

They fail to identify any personal injury suffered by the plaintiffs as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees.Ê That is not any injury sufficient to confer standing under Art.Ê III, even though the disagreement is phrased in constitutional terms.Ê It is evident that respondents are firmly committed to the constitutional principle of separation of church and State, but standing is not measured by the intensity of the litigantâs interest or the fervor of his advocacy.Ê ã[T]hat concrete adverseness which sharpens the presentation of issues,ä is the anticipated consequence of proceedings commenced by one who has been injured in fact; it is not a permissible substitute for the showing of injury itself.

Valley Forge College, 454 U.S. at 485-86 (emphasis in original)(citations omitted).

It is clear, therefore, that the plaintiffs have not alleged sufficient facts to show that they have standing to bring this action; and the Court should so hold.

IV. Service of Process was Inadequate.

Service of the Summons and Complaint in the instant action was attempted to be made via first-class United States mail. However, the Plaintiffs failed to secure personal service upon these Defendants, as required by the applicable state and federal rules. Accordingly, the Defendants move the Court to quash the service of process upon them and otherwise to dismiss the action.

It is elementary that the issuance and service of process is a prerequisite to the jurisdiction of any court. A court must acquire jurisdiction before it may exercise it, and such acquisition of jurisdiction is generally accomplished by the service of process. Napier v. Hawthorn Books, Inc., 449 F. Supp. 576 (E.D. Mich. 19-). Due process requires that a court obtain jurisdiction over a defendant before it adjudicate his personal rights. Kulko v. Superior Court of California, 436 U.S. 84 (19-) .

In the absence of a voluntary appearance or waiver, the issuance and service of processor notice is indispensable to the jurisdiction of a court to determine the adverse claims of parties to the litigation. It is essential to the exercise of jurisdiction by a court that process issue giving notice to those persons whose rights and interests will be affected. Rosenberg v. Bricken,Ê 302 Ky. 124, 194 S.W.2d 60 (19-.) Until notice is given to the defendant of the action or proceeding against him, and he is thereby given opportunity to appear and to be heard, the court has no jurisdiction to proceed to judgment against him even though it may have jurisdiction of the subject matter. McDonald v. Mabee, 243 U.S. 90 (19-); Re Johnson, 167 U.S. 120 (19-).

Furthermore, the mere fact that a defendant has knowledge of a suit pending against him is insufficient to give a court jurisdiction, absent service of process or a voluntary appearance by him.Ê Rosenberg v. Bricken. Moreover, the mere fact that a defendant may in some way have learned of the filing of the suit does not dispense with the necessity of service of process. By the same token, deficiencies in service of process upon a defendant cannot be cured by his actual knowledge of pendency of the suit. Bennett v. Circus USA, 108 F.R.D. 142 (N.D. Ind. 19-)

One who is not served with process does not have the status of a party to the proceeding. The parties and their case must be brought before the court, and this is accomplished by the use of process. 62B Am Jur. 2d Process € 6 at nn. 39-40 (1990)

Service of process must also be substantially in accordance with the requirement of law, and if service is insufficient and unauthorized by law, the court does not acquire jurisdiction. Perez Lopez v. Mangome, 117 F.R.D. 327 (D. Puerto Rico 1987). A court does not acquire jurisdiction where the notice is served on the wrong person. Szabo v. Keeshin Motor Express Co., 10 F.R.D. 275 (- D. Ohio 1950).Ê

In the case sub judice, it is evident that the Plaintiffs have absolutely failed to acquire personal jurisdiction over these Defendants. Service of process is governed by Rule 4 of the Federal Rules of Civil Procedure. Rule 4 (c)(2)(C)(ii) provides that service may be made by mailing a copy of the complaint to the person to be served, together with a request for waiver. This is the only provision for service set out in the Federal Rules. The Plaintiffs obviously did not serve the Defendants in this manner, since there were no waiver of service forms enclosed with the instant Complaints.

However, Rule 4(c)(2)(C)(i) provides that a summons and complaint may be served "pursuant to the law of the State in which the district court is held for the service of summons or other like process upon such defendant in an action brought in the courts of general jurisdiction of that State." Plaintiffs must have necessarily been attempting to effect service of process by this method. CR 4.01 provides

Upon the filing of the complaint (or other initiating document) the clerk shall forthwith issue the required summons and, at the direction of the initiating party, either: (a) Place a copy of the summons and complaint (or other initiating document) to be served in an envelope, address the envelope to the person to be served at the address set forth in the caption or at the address set forth in written instructions furnished by the initiating party, affix adequate postage, and place the sealed envelope in the United States Mail as registered mail or certified mail return receipt requested with instructions to the delivering postal employee to deliver to the addressee only and show the address where delivered and the date of delivery. The clerk shall forthwith enter the facts of mailing on the docket and make a similar entry where the return receipt is received by him or her.

As the court will note, the summons and complaint are to be mailed by the circuit court clerk and the return receipt is to be returned to the clerk. There is no indication in either CR 4.01(1) or K.R.S. 271B 5-040 that the clerk may delegate this duty to the Plaintiff or to the Plaintiff's attorney.

The treatise Kentucky Jurisprudence states unequivocally:

The wording of the rule does not authorize the clerk to return the summons to the Plaintiff or Plaintiff's attorney for service or delivery.

William S. Haynes, Kentucky Jurisprudence: Civil Procedure € 4.01-2 (1985)

The treatise Kentucky Practice similarly notes:

Subdivision (1)(a) sets forth the procedures for service by certified mail. If the attorney for the initiating party selects this type of service, the clerk is required to mail a copy of the summons and the complaint or other initiating document to the person to be served at the address provided by the initiating party.

Kurt A. Philipps, Kentucky Practice: Rules of Civil Procedure Annotated, CR 4.01, comment 4 (5th ed. 1995)

The treatise Corpus Juris Secundum likewise states:

Where the statute designates the particular officer or person to make the service, no other person can legally do so, and service by one who had no authority to make it is a nullity.

72 C.J.S. € 34 at nn. 90-91 (1987; Ê62B Am. Jur. 2d Process € 126 at n. 22 (1990)("Attempted service of the summons by an unauthorized person is not a mere defect in service, but is no service")

Furthermore, the law in Kentucky, as elsewhere, specifically forbids the service of process by Plaintiffs or their attorneys. As a general rule, the law does not authorize a person to execute process in his own favor. To permit such a course of practice would lead to great oppression, wrong and irregularity. The law has wisely entrusted the decision of disputes between citizens to persons wholly disinterested and free from bias and the acrimony of feeling so frequently, if not uniformly, engendered by litigation; and the same is equally true of the persons selected to execute the process necessary to the adjustment of such disputes. Boltes v. Estes, 158 F.R.D. 110, 114 (S.D. Tex. 1994)("a Plaintiff is expressly prohibited from serving process upon a Defendant"); Crouch v. Boudy, 754 P.2d 1299, 1300-01 (Wash. App. 1988)("service by a party is not valid service")

As the Nevada Supreme Court has stated:

Nevada has long had rules prohibiting service by a party. This was a common law requirement and has not been changed by statute. there are obvious and sound policy reasons for this prohibition. The primary justification . . . is that service many times becomes a battle of credibility and testimony. something as fundamental and decisive as service is best taken away from the parties or their counsel or counsel's employees . . . (Plaintiff) cannot establish that proper service took place by a disinterested party; the default judgment is therefore void.

Sawyer v. Sugarless Shops, Inc., 792 P.2d 14 (Nev. 1990).

Kentucky follows this same rule. The attention of the court and counsel is respectfully directed to Knott v. Jarboe, 58 Ky. 504 (1859). that case arose when the Marion County Sheriff, Jarboe, served process in a case in which he was the Plaintiff. Kentucky's highest court held that such service was invalid. Wrote the court:

The right of a Plaintiff in an action to execute his own process is so obviously repugnant to the genius of our system of jurisprudence, that we suppose there have been but very few instances of an attempt to exercise it.

The sheriff in this case . . . was a party, the sole Plaintiff in the action, and he was upon that ground expressly prohibited, by the rule of law referred to, from having anything to do with the service of the process.

There was, then no legal or valid service of process upon the appellant, and it results as a legal consequence that the judgment was, as to him, a nullity, and he was no more bound or concluded by it than if a notice of the commencement of the suit had been served upon him by a private person, having no color of authority.

Knott v. Jarboe, 58 Ky. at 506-07

To the same effect are the holdings of Lillard's Ex'r v. Lillard's Ex'rs,44 Ky. 340 (1845) and Chambers v. Thomas, 11 Ky. 268, 269 (1922). while these are older cases, they have not been overruled, limited, or even questioned, and they have frequently been cited by Kentucky's highest court as setting out the correct rule on the subject. See, for example, Croley v. Huddleston, 304 Ky. 811, 814 (1947) and Adams v. Letcher County, 299 Ky. 171, 173 (1944), both of which cite Knott v. Jarboe as authority for the proposition that a party may not serve his own process.

This prohibition, by necessary implication, includes the agent or attorney of a party. Service of summons by the Plaintiff's attorney was incompetent at common law. Furthermore, the Plaintiff's attorney is, in legal contemplation, a "party" to the action. Recent cases so holding include Miller v. Bank of New York (Delaware), 650 N.Y.S.2d 737, 738 (A.D. 2 Dept. 1996); Dotson v. Lustron, Inc., 271 S.E.2d 644, 645 (Ga. App. 1980)(process server must be "wholly disinterested in the litigation"); and Bramlett v. District Ct. of Marshall County, 557 P.2d 424 (Okla. 1976).

In the latter case, the Oklahoma Supreme Court noted the rule "that no person 'interested' in the action should serve process." In explained that this rule:

Ê. . . preclude[s] anyone whose fortunes, professional reputation or personal well being would be materially affected by the outcome of the action. An attorney retained to represent a party is 'interested' in the action and is precluded from serving process in an action in which he represents a party.

Bramlett, 557 P.2d at 426-27

This rule prohibits a Plaintiff's attorney not only from hand-delivering process, but also from

mailing process to a Defendant. Reilly v. Lasso, 339 A.2d 1057, 1060 (N.J. Super. 1979)

Extensive research has disclosed no Kentucky case addressing the question of whether a Plaintiff's attorney can serve process on a Defendant. However, in Chambers v. Thomas the court held that a deputy sheriff could not serve process which the sheriff as a party was prohibited from serving. Cambers, 11 Ky. at 269

If a deputy sheriff, who has no direct involvement in the litigation, is sufficiently "interested" to fall within the rule's proscription, a fortiori, an attorney who represents a plaintiff in the litigation is disqualified from serving process which his principal could not.

Applying this rule to the facts of the case at bar, the return of service plainly shows that the service of process was mailed by the Plaintiff's attorney, and the receipt of service was returned to him. Therefore, under the foregoing rule, the service of process attempted to be made upon the Defendants was defective and void.

Moreover, CR 4.01 provides that when service is made by United States mail, the process must be sent by registered or certified mail ãwith instructions to the delivering postal employee to deliver to the addressee only.ä It is obvious, therefore, that the effect service upon a natural person, the Kentucky Rules of Civil Procedure require that process be served personally upon the party.

The Plaintiffs have not complied with this provision. As the Record reflects, the return receipt for the mailed process was not signed by Don Musselman, the party named as defendant, but by __. Don Musselman, therefore, is not properly before the Court, and service upon him must be quashed and the action dismissed as to him.

CR 4.04(7) provides, in pertinent part: ãService on any public board or other such body, except state agencies, shall be made by serving a member thereof.ä Therefore, in order to bring the Harlan School Board before the Court, the Plaintiffs were required to serve the Summons and Complaint upon a member of the Harlan County Board of Education. ___, upon whom the Summons and Complaint were served, is not a member of the Harlan County Board of Education. Therefore, the school board is not properly before the Court, and service as to it must be quashed and the action dismissed as to it.

Since the service of process which was attempted upon both of the named defendants in the instant action was and is defective and void, there are no parties defendant before the Court. The action, therefore, must be dismissed. Ross v. Runyon, 156 F.R.D. 150 (S.D. Tex. 1994)(complaint dismissed because process server gave documents to individuals not authorized to accept service on behalf of defendant)

CONCLUSION

ÊÊÊÊÊÊÊÊÊÊÊ This case is not about religion or the widely misunderstood notion of ãseparation of church and state,ä but is, as Stone v. Graham, 449 U.S. 39 (1980) recognizes, about the Constitutionality of the teaching American history without censorship and/or revision.Ê As Stone provides this is a case in which ã·the Ten Commandments are integrated into the school curriculum,ä without religious ceremony or ritual, ãto be used as part of an appropriate study of history and civilization ethics·ä ÊÊÊÊÊÊÊÊÊÊÊ The case is also about an anonymous attempt by the ACLU to censor, suppress or rewrite American history and civil government because of Christian references in historic governmental or ãstateä history, in a state school. The Board of Education of Harlan County took as its guiding principle the Declaration of the Kentucky General Assembly in 1992 that;

There shall be no content-based censorship of American history or heritage in the Commonwealth based on religious references in these writings, documents, and records.Ê

KRS 158.195

In these lawless and murderous times in the state schools, the clear intention of the Board of Education of Harlan County, Kentucky in posting the Ten Commandments amid an historical display of governmental documents was to present to the children that, as Justice Oliver Wendall Holmes opined in New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921); ãA page of history is worth a volume of logic.äÊ Justice Frankfurter also opined in Kovacs v. Cooper, 336, U.S. 77, 95 (1949); In law also, doctrine is illuminated by history.ä

The Ten Commandments are the precedent legal code of American law and government and a historical display of the Congressional Record, containing the Ten Commandments, is not ãreligiousä nor does it make the school a ãchurch.äÊ

As shown above, the controversy alleged in the Complaint is now moot, and the case must be dismissed.Ê This is true, because the Defendants have now posted in the Harlan County Public Schools a display of historical documents which fully complies with the requirements of Stone, and is also authorized by K.R.S. 158.195.ÊÊ The court, therefore, must dismiss the Complaint and strike the case from its docket.Ê Defendants pray for an order of the court so holding.

Respectfully submitted,

_________________________________________

Johnnie L. Turner

JOHNNIE L. TURNER, PSC

114 S. First Street

Harlan, Kentucky 40831

Counsel for Defendants

and

_____________________________________________

Colonel Ronald D. Ray

Counselors at Law

3317 Hallâs Hill Road

Crestwood, KentuckyÊ 40014

(502) 241-5552

(502) 241-1552 (facsimile)

Counsel for DefendantsÊÊÊÊÊ ÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊ ÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊÊ ÊÊÊÊÊÊÊÊÊÊÊ

and

_____________________________________________

Theodore H. Amshoff, Jr.

AMSHOFF & AMSHOFF, P.S.C

Ninth Floor

200 W. Broadway

P.O. Box 2848

Louisville, KentuckyÊ 40201-2848

(502) 540-0060

(502) 540-0066 (facsimile)

Counsel for Defendants Harlan County, Kentucky,

and Don Musselman, Superintendent of Harlan County

Public School

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing, together with a copy of the Memorandum in Support of Defendantsâ Motion to Dismiss, was served by mail, on this 15^th day of December, 1999, to counsel for the Plaintiffs at the following addresses:

Mr. David Friedman, Esq.

General Counsel

American Civil Liberties Union of Kentucky

425 W. Muhammad Ali Boulevard

Suite 230

Louisville, Kentucky 40202

Ms. Kathleen Flynn, Esq.

Everett C. Hoffman, Esq.