Whether we should reverse or affirm the judgment depends on the evidence that was before the district court, and we cannot tell from the record what that evidence was. Everyone agrees that some evidence presented to the district court has been omitted from the record on appeal, but the attorneys have not been able to identify what was omitted. The problems presented by a record containing significant evidentiary gaps are compounded because at least some key findings of the district court are not supported by the evidence that is contained in the record. We have concluded that the unfilled gaps in the record, coupled with the problematic nature of some of the district court’s factfindings, prevent proper appellate review of the merits of the important constitutional issues raised in this case. For reasons we will explain, we have decided the best thing to do is remand the case to the district court in order for it to conduct new evidentiary proceedings and enter a new set of findings based on evidence in a record that we will be able to review.The opinion goes on at great length about how the court's opinion isn't supported by the record. This shows up on page 30:
As plaintiffs’ counsel on appeal has acknowledged: “Perhaps because the 2300-signature Rogers Petition is missing from the record, both parties have confused it with the September Petition.” He also made this remark: “The trial transcript is replete with testimony about documents where the absence of identification by exhibit number and other foundational information make it difficult to ascertain with certainty from the appellate record what is being discussed.” That is, if anything, an understatement.This (page 31) is interesting:We turn now to what we should do about factfindings unsupported by evidence in the record and rampant confusion about what evidence was before the district court.
We have said that the burden is on the appellant to ensure the record on appeal is complete, and where a failure to discharge that burden prevents us from reviewing the district court’s decision we ordinarily will affirm the judgment. ... [skipping some] ... The rationale of these decisions, we suppose, is that where it is the appellant’s fault that an appellate court cannot properly carry out its review the appellant is the one who should suffer the consequences, and inflicting them encourages proper preparation and presentation of the record on appeal.Then (page 34) the court says:The absence-equals-affirmance rule that applies in the usual situation does not apply here because the cumulative effect of six considerations convinces us this is not the usual situation. First, this is not a case in which the appellants had the evidence, or had access to it, at the time the appeal was taken but chose not to include it in the record on appeal. This appears to be less a case of unsupplied evidence than one of missing evidence. Second, we cannot say it was the appellants’ fault that the evidence is missing from the record. In the circumstances that brought us to this point, there is more than enough blame to go around. Third, the appellants, like the appellees, have diligently attempted in good faith to supply us with the evidence once we brought the problem to their attention. Diligently, but without success.
Fourth, this is not a case in which without the missing evidence we have no reason to believe there is any error in the district court’s findings. We cannot conduct a meaningful review of whether the district court’s fact findings are supported by the evidence before it without knowing what that evidence was. Without the missing evidence we cannot tell the extent of any errors in the findings or the effect they had on the court’s decision.
Fifth, both parties challenge decisions of the district court. The defendants challenge the conclusion of the district court that the sticker was an endorsement of religion, and the plaintiffs challenge the finding that the school board acted with a secular purpose. A complete and accurate record is essential to a full consideration of the arguments of both parties.
Finally, the issues presented by this case are ones of substantial public importance and need to be resolved on their merits based on the facts instead of based upon mutual mishaps, mistakes, and misunderstandings about the evidence. We do not mean to imply that anything less than all of these factors would cause us to remand for further evidentiary proceedings. Because all of the factors are present in this case, however, we think that course of action is the appropriate thing to do.
In remanding for additional evidentiary inquiry and new findings, we leave it to the district court whether to start with an entirely clean slate and a completely new trial or to supplement, clarify, and flesh out the evidence that it has heard in the four days of bench trial already conducted. The procedural details of the proceedings on remand are within the discretion of that court. Whatever the court decides to do, however, it should take care to ensure that any and all evidence on which it bases any findings is part of the record before it. The parties should ensure that the evidence put before the district court is included in the record on appeal.On page 35, running all the way to page 42, the court lists eighteen items as guidance to the trial judge as to what he should be looking for. It's interesting, but too long to copy here. Finally, on the last two pages (42 and 43, the court says:
In vacating the district court’s judgment and remanding the case for additional proceedings, we want to make it clear that we do not intend to make any implicit rulings on any of the legal issues that arise from the facts once they are found on remand. We intend no holding on any of the legal premises that may have shaped the district court’s conclusions on the three Lemon prongs. Mindful that in this area factual context is everything, we simply choose not to attempt to decide this case based on a less than a complete record on appeal or fewer than all the facts.In other words, no decision at all. No celebrations by either side.