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Federal judge rejects Weinbaum suit aginst Las Cruces Public Schools

By Jose L. Medina, Las Cruces Sun-News, December 9, 2006

LAS CRUCES A federal judge has handed a Las Cruces man a second defeat in his fight to rid public institutions of what he argues are religious symbols.

U.S. District Judge Robert Brack ruled late Thursday that a lawsuit filed by Paul Weinbaum against the Las Cruces Public Schools is without merit.

Weinbaum had sued the school district in arguing that its use of three crosses in its logos and on school grounds violated the First Amendment of the U.S. Constitution by using public funds to promote religion.

Weinbaum and fellow Las Crucen Martin Boyd sued the city of Las Cruces on similar grounds in 2005. That case was dismissed Nov. 9 and was appealed Wednesday to the 10th Circuit Court of Appeals in Denver by Weinbaum and Boyd's attorney, Brett Duke of El Paso.

Neither suit sought monetary damages. In both suits the plaintiffs requested a judge issue an order that the symbols be removed.

Reached by phone Friday, Weinbaum, who is the sole plaintiff and is representing himself in the schools case, said he had not yet read the judge's decision and declined to comment on the specifics of the ruling.

But as in the city case, Weinbaum said he will appeal.

"This should have been taken care of a long time ago without dragging it on," said Weinbaum, who has never argued against Las Cruces' name (The Crosses), only the use of crosses in local government logos. "It wasn't me dragging it on. I guess it was just they just wanted me to go away."

The school district's attorney in the case, William "Rusty" Babington, was unavailable for comment Friday.

The suit was first filed in 2003 by Weinbaum and then co-plaintiff Jesse Chavez. Chavez has since asked and been granted removal from the case.

The suit took issue with crosses used on school district vehicles, buildings and artwork. It also took issue with the school district's policy on religion.

The case went to trial and ended Nov. 27 with only two counts to be resolved the constitutionality of the three-cross logos on school maintenance vehicles and a mural located at Booker T. Washington Elementary that depicts three crosses.

Two other counts the school district's policy on religion and a sculpture at the Field of Dreams athletic complex were thrown out and ruled constitutional before trial.

Weinbaum's case took a major hit when he testified on the stand he didn't have much evidence and was making his claims largely on personal observation.

In issuing the decision Brack wrote that LCPS uses its logos secularly.

"(Weinbaum) did not prove that the emblem has the primary effect of endorsing religion," Brack wrote.

Brack went on to write that "A reasonable observer of the emblem affixed to LCPS maintenance vehicles would understand the crosses incorporated therein to symbolically represents Las Cruces a uniquely named geopolitical subdivision rather than an endorsement of Christianity."

Brack also ruled the Booker T. Washington Elementary mural constitutional because the crosses "symbolically represent this uniquely named geopolitical subdivision, rather than an endorsement of Christianity."

In dismissing the case Brack ruled LCPS is entitled to recover attorney's fees.

According to Carl Warren & Co., the third party claims administrator for the school district, about $35,000 in attorney's fees and expenses had been spent in defending the case as of mid-July. A current dollar figure was not immediately available.

Brack gave LCPS attorneys 30 days to file a final accounting of fees.

Jesse V. Chavez and Paul F. Weinbaum vs. Las Cruces Public Schools

Sept. 19, 2003: Lawsuit filed. Weinbaum and Chavez representing themselves in the case

Oct. 5, 2006: Weinbaum found in contempt of court for bringing recording device into court

Oct. 6, 2006: Co-plaintiff Chavez petitions to be removed from the case

Oct. 11, 2006: Chavez's petition is granted

Oct. 27, 2006: Weinbaum agrees to pay $500 fine as punishment for contempt of court

Nov. 9, 2006: U.S. District Judge Robert Brack dismisses part of the case, ruling that the schools district's policy on religion and a sculpture at the Field of Dreams are constitutional.

Nov. 27, 2006: One-day bench trial. Four school district officials, an NMSU professor and Weinbaum testify.

Dec. 7, 2006: Brack dismisses the final two counts and enters a judgment in favor of LCPS

Paul F. Weinbaum, and as a parent and guardian of Olivia S. Weinbaum; Martin J. Boyd vs. City of Las Cruces

Sept. 16, 2005: Lawsuit filed. Weinbaum and Boyd acting as their own attorney

Jan. 7, 2006: By request of the plaintiffs and defendants in the case, NMSU history professor Jon Hunner issues a 35-page report in which he outlines the possible origins of the name "Las Cruces."

April 14, 2006: Weinbaum and Boyd hire attorney Brett Duke of El Paso

Nov. 9, 2006: U.S. District Judge Robert Brack dismisses case in its entirety before going to trial

Dec. 7, 2006: Duke files appeal on behalf of Weinbaum and Boyd. Tenth Circuit Court Appeals in Denver to hear case; date not yet set

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