Dispatches from the Creation Wars

Over at the Panda’s Thumb, there’s a troll by the name of Larry Fafarman who has been posting under about 50 different names, using proxies to evade a ban. He’s apparently posting under the name J Simes now and he’s trying, both valiantly and absurdly, to defend the Manzari and Cooper article and make the case for collusion. (I notice now that the comment was deleted, since he’s already banned, but it should be debunked anyway). Since he actually lists his arguments in order, it’s nice and easy to take apart.

(1) At the Dec. 5 meeting, the new board members should have kept their campaign promises to repeal the ID policy and then offered to make an out-of-court settlement with the plaintiffs. Even if the new board members believed that it was probably too late for such actions to do any good, these actions would have at least been a symbolic gesture showing that the new board sincerely wanted to keep the campaign promises to repeal the ID policy and save the taxpayers money. They knew that this meeting was the last chance to ask for an out-of-court settlement and that they were lucky to get the chance. Question — what possible harmful consequences could have resulted from taking the above actions?

He’s ignoring several facts. First, the new board was not seated yet, only part of the board was. And they were sworn in at the Dec. 5th meeting, so they didn’t have control of the agenda there. When the issue was brought up, they did what they should have done, put it on the agenda of the following meeting so there was time for public comment and so that the full board could be seated before taking the vote. If this whole argument collapses down to passing a pointless symbolic gesture, it’s not much of an argument, is it?

(2) The plaintiffs might have been more willing to consider making an out-of-court settlement if Judge Jones had not assured them in advance that the board election would have no effect on his decision ( — from http://www.ydr.com/doverbiology/ci_3223198 ). The new board’s decision to not repeal the ID policy at the Dec. 5 meeting supported and reinforced Jones’ decision to ignore the effect of the election . I think I smell a conspiracy here.

If you smell a conspiracy here, I suggest visiting a doctor, preferably a shrink. The out of court settlement would not have changed things. The attorneys for both sides wanted the case to be appealed to set a broader precedent, and because the case was almost over by that point, legal fees would still have to be paid. As for the judge, he was simply following the law. Under the voluntary cessation doctrine, the judge can’t simply decide not to rule under such circumstances. And the article that he links to strongly cuts against his argument. From the article:

Napierskie asked the board to revoke the curriculum change that includes intelligent design, agree not to add it again and ask their legal representation, Thomas More Law Center, to file a motion to dismiss the lawsuit against them and pay $1 in damages.

Napierskie said he believes the action would make the case moot and prevent the district from paying legal fees.

“It’s not as simple as let’s dismiss the case and walk away with paying $1,” said Thompson, who spoke with Napierskie prior to his motion. “By merely dismissing the case, even if that were agreed upon, would not eliminate the plaintiffs’ ability to ask for reasonable attorney fees.”

Their own attorneys said that Napierskie’s proposal would not have gotten them out of paying legal fees. So has every single legal scholar who has commented on the plan. In fact, the only person in the article who says the plan might have worked to reduce the legal fees is from a theology school:

Kevin Alan Lewis, assistant professor of theology and law at the Talbot School of Theology, Biola University in California, said the defense could file a motion to dismiss on the basis that there is no controversy because the new board doesn’t favor the curriculum.

And he is 100% wrong. Case law is very clear on this. I’ll cite some for you. The 1982 case of CITY OF MESQUITE v. ALADDIN’S CASTLE, where plaintiffs had challenged a law as being unconstitutionally vague. In the middle of the court process, while the case was pending appeal, the city changed the law and filed a motion to dismiss – exactly what Napierskie proposed be done here. The Supreme Court ruled:

The fact that the phrase “connections with criminal elements” was eliminated from the ordinance while the case was pending in the Court of Appeals does not render the case moot. A defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. Here, appellant’s repeal of the objectionable language would not preclude it from reenacting the same provision if the District Court’s judgment were vacated.

This is binding precedent. Judge Jones had no choice but to follow that precedent and issue the ruling despite the voluntary cessation of the policy being challenged. When he said before the Dec. 5th school board meeting took place that the case had to go on regardless of what they did there, he wasn’t engaging in a “conspiracy”, no matter what this guy thinks he smells, he was following the law.

(3) New board members have blamed the former board members for the expense of the lawsuit but to my knowledge have not condemned the assignment of an excessive number of plaintiffs’ attorneys, 9-10, which drove up the attorney fee award. At least five plaintiffs’ attorneys were in the courtroom on each day of the 6-week trial (– from http://www.philly.com/mld/inquirer/13928874.htm ). Those 9-10 attorneys were not mostly just names on a distribution list.

New board members have blamed the old board for the expense for good reason. They ignored the legal advice of their own counsel and the legal advice of the Discovery Institute, both of whom told them that they were going to lose in court and have to pay legal fees. By any sane criteria, that is precisely where the blame belongs. As for the number of attorneys involved for the plaintiffs, he’s right when he says that they weren’t just names on a distribution list.

Pepper Hamilton had 5 attorneys assigned to the case, 3 of them partners, plus attorneys from the ACLU and Americans United, and they all worked their butt off. That’s why they so clearly kicked the tails of the Thomas More Law Center, which had at least 3 attorneys on the case full time. But there’s another side to that. By committing so many resources to the case, Pepper Hamilton was taking a huge risk – lose the case and they get nothing after racking up huge expenses. Win the case, and they still likely get less than half of those expenses reimbursed.

Every hour that one of their attorneys worked on that case was one hour they could have spent billing in a case that wasn’t pro bono. The total expenses were over $2.5 million, but they ended up getting $1 million, or 40% of the total, so they still end up taking a big loss on the case. That’s okay, big firms budget for such cases, so there’s no need to feel sorry for them. But there’s also no need to criticize them for putting on the best case they could and taking the risk of devoting all that expense to it and getting nothing in return at all.

(4) Some new board members said that they did not want to do anything about the ID policy until after the release of the Dover decision ( –from http://www.ydr.com/doverbiology/ci_3223198 ). This wait-and-see policy could be justified only if (i) the new board members believed that the defendants had some chance of winning the case and (ii) the new board members would have been willing to defend the ID policy in an appeal, something that would have been completely contrary to their campaign promises to repeal the ID policy.

But as has already been established ad nauseum, nothing the board did could possibly have changed the outcome of the case. The judge was going to rule no matter what the board did at the Dec. 5th meeting because that’s what the law requires him to do. That is the single key and overwhelming fact at the core of this argument and these guys just continue to stick their fingers in their ears and yell LA LA LA LA LA when it’s brought up.

(5) After the board voted to approve the $1 million settlement, the new board president said of Pepper Hamilton, which together with the ACLU and the AU represented the plaintiffs, “I think that Pepper Hamilton was very gracious.” — from http://www.yorkdispatch.com/features/idesign/ci_… Of course, since the settlement had already been approved, there was no longer any need for her to say anything nice about the plaintiffs’ legal representatives, who alone were to blame for driving up the legal costs by assigning an excessive number of attorneys.

The new board president was right, they were very gracious. They settled the legal bill for less than 40% of the real expense incurred. The fact that she didn’t have to say that is irrelevant. If it’s true, or if she believes it to be true, what’s wrong with saying it?

(6) By not taking any action at the Dec. 5 meeting, the new board was risking not just the $1 million of the final settlement, but was risking the $2+ million that the plaintiffs initially asked for.

There ya go, Larry. Just keep on pretending that the board could have changed the outcome of the case despite all the case law and the opinion of every lawyer attached to the case and every legal scholar in the nation. Don’t let those pesky little facts get in the way of a perfectly good delusion.

The new board will never be able to prove that it was not in cahoots with the plaintiffs and the plaintiffs’ attorneys.

The new board doesn’t have to prove that there was no collusion – you have to prove that there was. And so far, you’re making quite a fool of yourself in the attempt.

Comments

  1. #1 Ginger Yellow
    April 5, 2006

    Slightly off topic: when the Supreme Court denied cert for Padilla because the government was no longer holding him as an enemy combatant, were they not going against precisely this legal principle? Given that Padilla had still suffered the harm of the policy it seemed even more blatant. That really puzzled me at the time. What was their justification and do you think it stands up?

  2. #2 Ed Brayton
    April 5, 2006

    Ginger Yellow wrote:

    Slightly off topic: when the Supreme Court denied cert for Padilla because the government was no longer holding him as an enemy combatant, were they not going against precisely this legal principle? Given that Padilla had still suffered the harm of the policy it seemed even more blatant. That really puzzled me at the time. What was their justification and do you think it stands up?

    My understanding of the Padilla case is that it was a lot more of a close call on this question. The courts earlier had said, essentially, that you either have to charge Padilla or release him. And that’s what they did, they charged him. So in a sense, they were just following the court’s previous order on how to handle the case within the confines of the constitution. It’s one where a case can be made on both sides, I think, and I would have preferred that the court had still heard the case in order to establish a clear guideline. But it’s nowhere near as clearcut as the Dover case when it comes to voluntary cessation.

  3. #3 Raging Bee
    April 6, 2006

    I think I smell a conspiracy here.

    If you don’t take your tinfoil hat off to wash your scalp on a regular basis, you’re sure gonna smell something.

    The new board will never be able to prove that it was not in cahoots with the plaintiffs and the plaintiffs’ attorneys.

    Yeah, and the Air Force will never be able to prove they’re not in cahoots with the secret alien campaign to use humans as breeders. That sentence pretty much sums up the mentality of Larry and his fellow cranks.

    ‘Bout goddamn time they banned that idiot.

  4. #4 LarryFarma
    April 7, 2006

    Hi — this is the “troll“ — Larry Fafarman himself. I was banned from PT because of my ideas and not because I initially violated the PT`s rules. Here are some of comments —

    WHY MOOTNESS WAS A REAL POSSIBILITY

    It has been argued that because of the “voluntary cessation“ doctrine ( see http://en.wikipedia.org/wiki/Mootness ), the judge could not have declared the Dover case moot even if the new anti-ID school board members had rescinded the ID policy and agreed to sign a consent decree to not re-instate it in the future. Supposedly the problem here is that the consent decree could not be binding on future board members, but this is simply not true, because a consent decree can stipulate that it is binding on the signers` successors (an example is on http://www.firn.edu/doe/omsle/lulac.htm ). So I think that Judge Jones would have had grounds to declare the case moot if the new board had (1) rescinded the ID policy and (2) offered to sign a consent decree to not re-instate it.

    Another good argument in favor of ruling the case moot was that there was no opportunity for the original defendants to appeal the case because they had been voted off the board, and hence there was no real opportunity for a judicial review of a decision on the merits.

    Then there is the matter of attorney fees. Under the relevant statute, 42 USC ยง 1988, only a “prevailing“ party is eligible for an award of attorney fees, so if a case is declared moot, then neither party is eligible for the award. An incredible argument has been made that even if the new board rescinds the ID policy and offers to sign a consent decree, the judge should rule on the merits anyway just to make the plaintiffs eligible for the attorney fee award to which they are supposedly “entitled“ (note the presumption that the plaintiffs were going to win in a decision on the merits) !! This argument is quite lame and also shows a naivete about the courts. The courts do not feel that they owe litigants fair treatment. For example, an environmental lawsuit against the government was mistakenly filed without a required 60-days notice, and the plaintiff corrected the error by giving the required 60 days notice and refiling the suit, but incredibly the court dismissed the suit because it was not filed correctly the first time, and the Supreme Court upheld the dismissal (with a scathing dissenting opinion) !! All of this litigation cost the plaintiff a lot of time and money for nothing.

    So if the plaintiffs, by refusing to make an out-of-court settlement, would be taking the risk that the judge would declare the case moot and that they will therefore get nothing in attorney fees, then the out-of-court negotiating position of the new board in regard to the plaintiffs` attorney fees would be very strong indeed !!!

    ====================================================

    MORE ARGUMENTS (with some repetition of my original arguments) —

    At the Dec. 5 board meeting, former board member Napierskie presented expert legal opinions stating that repealing the ID policy could have the effect of mooting the case.

    At the mid-November lame-duck meeting of the outgoing board, Napierskie presented the same proposal for trying to moot the case, so the new board members had plenty of time to think over the idea prior to the Dec. 5 meeting.

    Several new Dover school board members said in mid-November that they opposed Napierskie`s proposal for trying to moot the case !!! (see http://www.ydr.com/doverbiology/ci_3223198 )

    Even if Napierskie`s proposal was just a longshot, wasn`t it worth $1 million dollars — or maybe even more — just to try? If it were your money, wouldn`t you try?

    Considering that the lawsuit had been a local obsession for a year, the new board president`s statement that the board needed more input from the community and school staff was ludicrous.

    The decision was due in late December or early January, so the board knew that the Jan. 3 meeting would be too late to take action.

    By not taking action in early December, the board assured that the issue of mootness could never be considered in court, either by Judge Jones or by judges in higher courts.

    What reason was there to wait for the decision, except to fight an appeal by the plaintiffs if by some miracle the judge ruled in favor of the defendants?

    The school board elections were close, so ironically the new board members may have owed their board seats to taxpayers who were concerned about possible big legal bills.

    Under the Pennsylvania Sunshine Act, there were several ways that the new board could have taken action — (1) an emergency vote at the Dec. 5 meeting, (2) a “special meeting“ (24 hours notice), (3) an emergency meeting (no notice), and/or (4) a closed “executive session“ with legal counsel

    Judge Jones assurance that the school-board election results would not affect his decision seriously damaged the school board`s bargaining position in any possible negotiations for an out-of-court settlement.

    In short, the actions of the new board and Judge Jones were simply inexcusable.

  5. #5 LarryFarma
    April 7, 2006

    Hey, Ed, what is going on here? I submitted a rebuttal yesterday and it still has not appeared. Why do you have to “moderate” the posts that are submitted here? If a post is inappropriate — e.g., offensive or off-topic — you can always delete it later.

    The “troll,” Larry Fafarman

  6. #6 Ed Brayton
    April 7, 2006

    Larry-

    Posts with a certain number of links in them automatically get moderated, but since I don’t get emails about it I don’t know they exist unless I’m told. I unmoderated it and I’ll rebut it later.

  7. #7 LarryFarma
    April 7, 2006

    Larry-

    Posts with a certain number of links in them automatically get moderated, but since I don’t get emails about it I don’t know they exist unless I’m told. I unmoderated it and I’ll rebut it later.

    I counted only three links in my post — Panda`s Thumb allows a maximum of four links for unmoderated posts. I find these strict limits to be a burden, because providing references is often important.

    Larry

  8. #8 Ed Brayton
    April 7, 2006

    Larry wrote:

    I counted only three links in my post — Panda`s Thumb allows a maximum of four links for unmoderated posts. I find these strict limits to be a burden, because providing references is often important.

    Three links is the trigger for automatic moderation. If you find it a burden, I suggest only providing references that actually support your argument; that should reduce it to zero.

  9. #9 LarryFarma
    April 7, 2006

    Posted by: Ed Brayton

    Three links is the trigger for automatic moderation.

    That means that the maximum for unmoderated posts is only two. That is not very many.

    If you find it a burden, I suggest only providing references that actually support your argument; that should reduce it to zero.

    That is not my only reason for using links — obviously. I also use links to — (1) identify sources and verify facts, (2) show that I am not quoting out of context or misrepresenting, and (3) direct the reader to related information or ideas. I may even give a link to a reference that opposes my argument. I use too few links rather than too many.

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