School Board’s Insistence On Incessant Prayer Costs CVUSD $202,000

The quixotic effort by three members of the Chino Valley Unified school board to perpetuate their practice of peppering their board meetings with Christian references has redounded to their potential personal financial detriment, with a U.S. District judge ordering them to dispense with the religiosity at their meetings. Now they, and another board member who never involved herself in using her public position as a proselytizing forum are on the hook for more than $200,000 in legal fees and court costs associated with the debacle.
For years, school board member James Na, an immigrant who treasures America as the home of political and religious freedom, has assumed his elected position gives him the power to make his Christian faith known to all when he is acting in his official capacity. At school board meetings, he has for years recited prayers, made Biblical references and told those present that they need to accept Jesus Christ as their personal savior. Subsequently Sylvia Orosco and Andrew Cruz were elected to the school board. All three are members of the Chino Hills Calvary Chapel, a church led by the Reverend Jack Hibbs, whose denominationalist philosophy dictates that it is the duty of Christians to run for public office and use their incumbency to preserve United States as a Christian nation. With the troika of Na, Cruz and Orozco on the board, their meetings soon took on the atmosphere of revivalist events.
In 2014, a number of parents and students, including just two who consented to using their names, filed suit against the district, seeking to have the board desist with the constant religious references during public meetings. Rather than knuckle under, however, Na, Cruz and Orozco over the dissent of board members Irene Hernandez-Blair and Pamela Feix voted to hire the Pacific Justice Institute, a Christian advocacy law firm to represent the district.
Ultimately On February 18, U.S. District Judge Jesus Bernal ordered the board to end its years-long tradition of “reciting prayers, Bible readings and proselytizing at board meetings.” Bernal enjoined the board from “conducting, permitting or otherwise endorsing school-sponsored prayer in board meetings.”
Na, Cruz and Orozco, buttressed by Hibbs and the parishioners at Calvary Chapel, were persuaded to fight on, dispensing with the representation of the Pacific Justice Institute and on March 7 opting to be represented by another Christian advocacy attorney, Robert Tyler of the Murrieta-based law firm Tyler & Bursch, to handle their appeal of Bernal’s ruling.
In pursuing the appeal, the school board has evinced a misunderstanding of a legal case, Town of Greece v. Galloway, they believe will reassert their rights to proselytize during public forums.
In 2014, the U.S. Supreme Court ruled 5-4, in the Greece case that public officials can open public meetings with prayers — even explicitly Christian ones — if the government agency does not discriminate against minority faiths when choosing who may offer a prayer and the prayer does not coerce participation from nonbelievers. Nevertheless, in the majority opinion in the Greece case, Supreme Court Justice Anthony Kennedy made clear that prayer was acceptable only when it is offered “during the ceremonial portion of the town’s meeting. Board members are not engaged in policymaking at this time, but in more general functions, such as swearing in new police officers, inducting high school athletes into the town hall of fame, and presenting proclamations to volunteers, civic groups, and senior citizens. It is a moment for town leaders to recognize the achievements of their constituents and the aspects of community life that are worth celebrating.”
Based upon their public remarks and ones made outside of public forums, Na and Cruz believe that Tyler will be able to use the Greece case to inject Christian references into all order of the board’s discussions rather than its initial ceremonial portion. Nearly a month ago, Tyler acknowledged that the board majority, Na and Cruz in particular, have an imperfect understanding of the reach of the Greece case. At that time, Tyler told the Sentinel, he had not explained the precise extent and limitations of the legal issues emanating from the Greece decision.
Despite their faith in God and Tyler, the board was unable to prevent Bernal from awarding the Freedom From Religion Foundation, and its lawyers, David Kaloyanides, Andrew Seidel and Rebecca Markert lawyer’s fees ranging from $650 per hour to $500 per hour and the foundation’s law clerk, Roda Torres, $200 per hour for her work. The four had collectively sought $208,275 for work totaling 429.9 hours, which included time the foundation spent researching the grounds by which the anonymous plaintiffs in the suit could maintain their anonymity.
The school board did not contest that the plaintiffs were entitled to some attorneys’ fees, but they challenged, in various ways, the reasonableness of the hours billed and the billing rates. The defendants argued the plaintiffs’ counsel could not bill for unproductive travel time or clerical tasks and that some of plaintiffs’ billing entries should be reduced because the plaintiffs’ allegedly engaged in “block billing,” which was defined as insufficiently itemized work. The defendants also contended the plaintiffs’ counsel should not receive attorneys’ fees for time investigating alleged incidents of retaliation against the plaintiffs, or for time spent on a related motion for a protective order.
For the most part, Bernal denied the defense’s challenge of the billings. In doing so, he made oblique reference to the lack of sophistication and ignorance of Constitutional law and legal expertise of the defense team. In seeking to lower the amount to be paid to the plaintiffs’ attorneys, Bernal said the “Defendants submit[ted] declarations from current and former defense counsel, stating what they believe to be reasonable hourly rates for their own services. Defendants miss the point. What defense counsel charges, or what defense counsel believes to be reasonable, is irrelevant to the determination of the prevailing rate in the legal community. $275 and $350 per hour may be reasonable rates for defense counsel, but defendants have presented no evidence that these are the prevailing rates in the district for counsel of Mr. Kaloyanides’ experience.”
While Bernal made a reduction of seven hours from the total 429.2 hours of work done by the Freedom From Religion Foundation’s legal team, the judge said 422.2 of those claimed hours were valid and he ruled, “Plaintiffs are entitled to $202,425.00 in attorney’s fees and $546.70 in costs from defendants James Na, Sylvia Orozco, Andrew Cruz, and Irene Hernandez-Blair in their individual representative capacities as members of the Chino Valley Unified School District Board of Education, for a total award of $202,971.70.” Pamela Feix was not named in the award because she was not elected to the board until November 2014 and she was not sworn into her board position until after the lawsuit was filed. Hernandez-Blair was named because she was a member of the board when the policy ruled to be unconstitutional by Bernal was taking place, although she dissented from Na, Orozco and Cruz’s activity.
Kaloyanides is to receive $131,560 for his 202.4 hours at $650 per hour dedicated to the matter. Seidel is to receive $37,400 at $500 per hour for his 74.8 hours working on the case. Markert is to be paid $7,425 at $550 per hour for the 13.5 hours she invested in the case. And Torres is to get $26,040 for the 130.2 hours she worked on the matter.
While Bernal’s ruling could be construed to indicate that it should be Na, Orozco Cruz and Hernandez-Blair who should pay the Freedom From Religion Foundation’s lawyers, that is unlikely. The school board has ultimate control over the expenditure of district funds, and they are thus enabled to use district money to cover the legal costs Na, Cruz and Orosco’s imposition of their religious views has resulted in for the district.
Julie Gobin, the district’s official spokeswoman did not respond to questions about whether the district would pay the $202,971.70 the Freedom From Religion Foundation’s legal team is now owed and whether the district will continue to indemnify the board members over any further legal costs or judgments against them on the prayer issue going forward.
Robert Tyler, who is representing the district pro bono, said the judgment against the board members was not applicable to them personally, as they were “acting in their capacity as officers of the school district.”
Thus, Tyler said, the district will cover the $202,971.70 cost. He said the district will not stand to recover its lawyer’s fees if it prevails on the appeal, which he said is aimed only at reestablishing the right of the board to engage in ceremonial prayer.
Tyler said the Freedom From Religion Foundation had an “athiestic agenda” to “remove all references to God from public life.”

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