Dispatches from the Creation Wars

Larry Fafarman has posted a long comment on a thread below and I’m moving it up here to answer it because it raises a really important point on this trumped up controversy over why the Dover school board didn’t rescind the ID policy on Dec. 5, 2005 at the first meeting they were sworn in at. He begins by conflating two very different things:

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), the judge could not have declared the Dover case moot even if the new anti-ID school board members had rescinded the ID policy and agreed to sign a consent decree to not re-instate it in the future.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 So I think that Judge Jones would have had grounds to declare the case moot if the new board had (1) rescinded the ID policy and (2) offered to sign a consent decree to not re-instate it.

You are confusing two entirely different things – mooting and settling. What you’re referring to here is a settlement, not a mooting of the ruling. There is a big difference between the board voluntarily rescinding the policy and then asking the judge to dismiss the case (which is what mooting is) and negotiating a settlement that would end the case without a ruling. Mooting the case was simply not going to happen, period, and that is what Napierskie was suggesting to the board, that they rescind the policy and then ask the judge to dismiss the case without a ruling because there was no longer an issue.

A settlement was possible, but that settlement would have had to include a financial settlement similar, or even identical, to the one they ultimately did agree to. By that point in the trial, 99% of the legal work was done. Both sides had submitted their final briefs and the judge was already writing the decision. And at that point, the plaintiffs’ legal bill was already almost $2.5 million. The plaintiffs’ attorneys did negotiate a smaller settlement of that bill after the trial, for about 40% of that total, and that’s what it almost certainly would have taken to reach a settlement with them.

Also bear in mind that this would require that the plaintiffs would have to accept any such settlement and the chances of that were virtually nil. This case was planned in order to get a ruling. They designed the complaint specifically to make sure that the case could not be mooted by asking for nominal monetary damages, which would have required a ruling even if the policy was changed. The plaintiffs’ side wanted a ruling in the case to be able to establish a precedent, even if it wasn’t appealed to make that precedent wider.

Also consider that, given how the trial went, the plaintiffs were virtually certain that they were going to win; the only real question was whether they would win small or win big. By that time, even most ID advocates had pretty much given up any hope of actually winning the case and were just hoping that the ruling was narrow and not broad. In short, the plaintiffs simply had no incentive to negotiate a settlement when they were almost assured of getting everything they wanted within a few weeks time. And unless the plaintiffs agree to the settlement, it doesn’t happen.

One more consideration: the new school board had no authority to negotiate any settlement whatsoever in the case until after they were sworn in as board members. They were not a party to the proceedings until they were members of the board and therefore they could not have even begun such negotiations until after Dec. 5th. Even if they had rescinded the policy at that meeting, they still would have then had to try and negotiate a settlement but they would have had no leverage at all because A) the policy was already rescinded, and B) the plaintiffs were virtually certain they were going to win. So even if the plaintiffs would have been willing to forego a ruling, they would have no incentive to do so once the policy was rescinded, certainly no incentive to drop the legal bills, and it still would have had to be done after the Dec. 5th board meeting.

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.

This isn’t a good argument, it’s a bad argument, and I’ve already answered it in the other thread you posted a message on.

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.

Again, this assumes the judge was going to dismiss the suit without a settlement solely because of a voluntary rescinding of the policy. That was not going to happen, period, end of discussion, get it out of your freaking head. Not in this universe or any other was that going to happen, it would violate every precedent on the issue.

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) !!

Uh, who has made this “incredible argument”? Not me or anyone else I’ve read. Again, the case could not be mooted it could only be settled, and a settlement requires that the plaintiffs agree to it. They would not have done that without the same financial settlement. As for the presumption that the plaintiffs were going to win, that was all but a foregone conclusion by Dec. 5th. The only question was whether we were going to win small (get a limited ruling based solely on the board’s purpose) or win big (get a comprehensive ruling on the religious nature of ID). We won big, and that is the source of these weak attempts to attack the new board.

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 !!!

Just a word of advice: lots of exclamation points do not a coherent argument make. The plaintiffs had absolutely no reason to be concerned that the judge would moot the case without a settlement. They had designed the complaint specifically to avoid that happening (knowing that there were school board elections coming up in the fall, of course), they knew the case law on voluntary cessation and they knew that even if the judge had done so, his decision would almost certainly be overturned by a higher court.

You can tap dance around this all you want, but you cannot escape the case law on voluntary cessation. There simply was no chance whatsoever that a voluntary rescinding of the policy was going to lead to dismissal; only a settlement was going to avoid a ruling and the plaintiffs had no reason to settle and every reason not to. That is the immutable reality of the situation and no amount of handwaving is going to change it.

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.

No. He presented a single legal opinion from an unknown attorney, probably just a buddy of his, who clearly was not an expert at all. Indeed, if you were to do a websearch for Andrew Shaw, the attorney from Carlisle, PA, who advised Napierskie, you’ll find the following:

Andrew Shaw is a general practitioner focusing in Estate Planning and Real Estate.

That certainly doesn’t make him an expert on this subject. All of the attorneys who are experts – and the judge, most importantly – have all said that rescinding the policy would not have led to dismissal, period. The case law, about which Shaw seems blissfully ignorant, is very, very clear and it has been cited for you multiple times without response. It’s time to give up this fantasy that rescinding the policy was going to get the case dismissed.

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 president of the board didn’t say that more input was needed; it was indeed a foregone conclusion that the board was going to do it. But she said she was going to allow comment and that is consistent with the usual manner that things are done. Even when everyone knows that a legislative body is going to vote a certain way, the other side is still allowed to have their say. That was just smart politics. You allow the other side their time to put their position on the record even if everyone knows it’s not going to change the decision because failing to do so opens you up to the charge of stifling dissent.

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?

Well I’m glad you admit that it would take a miracle for the plaintiffs not to win; we knew that too. And that is precisely why no settlement was going to be agreed to. That really does end the argument.

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.

All of which is irrelevant (since no one is claiming that it was illegal for the board to rescind the policy at the Dec. 5th meeting) except to the extent that it establishes that if they had taken a vote to rescind at the Dec. 5th meeting, it would have been highly unusual. Thus, the default would be not taking the vote then, which would require invoking a special procedure to do, unless there was some compelling reason to hurry it. Given that there was no settlement possible, and no mooting possible, there was no such reason to do anything unusual.

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.

Nonsense. Judge Jones was only stating what the law said accurately. Was he supposed to play pretend and lie about it? Given that the plaintiffs knew they were going to win (by your own admission, any other ruling would be a “miracle”) and were going to get what they wanted within a few weeks regardless, there was no bargaining position to begin with. And even if they had wanted to negotiate a settlement, those negotiations could not begin until after Dec 5th because the new school board had no authority to negotiate on behalf of the school district.

Every one of these arguments is extremely weak and contradicted by the evidence. It’s time to leave this fantasy behind and join the reality-based community.

Comments

  1. #1 Rilke's Granddaughter
    April 8, 2006

    At the risk of making a comment unrelated to the actual post (which I thought was extraordinarily clear and helpful for those of us who are merely the children of lawyers, rather than lawyers ourselves) – it’s probably not going to be good for your site to have responded to Larry. As his behavior at PT shows, he is a malicious, ignorant, rather stupid internet crank with serious delusions of grandeur. He’s harder to get rid of than warts.

    I’m sure you know all that. But many thanks for the posting!

    (And Larry – please note that the reason your post has been put here is to show how incredibly stupid your statements were, not because anyone is treating it seriously).

  2. #2 Sonik
    April 8, 2006

    Let’s just be clear about what Farfarman is trying to do with the “blame the new Board” rhetoric: DI is once again trying to shift the blame of Judge Jone’s well-reasoned decision that destroyed any credibility that DI and TMLC had in this case away from themselves so they can keep playing the victim.

    The only problem is that so many of these people like Farfarman so sincerely beleive that they have been victimized by whatever outside force they think controls their lives.
    organizations.

  3. #3 LarryFarma
    April 8, 2006

    You are confusing two entirely different things – mooting and settling.

    Wrong. Settling has the effect of mooting the case. Once all parties agree to a consent decree that settles the case, that is the end of the case — period. There is no judgment on the merits. Defendants often agree to consent decrees in order to avoid a possible judgment of guilt or wrongdoing. Consent decrees often stipulate that the defendant does not admit wrongdoing. The only issue here is what Judge Jones might have done if the new school board had offered a reasonable consent decree (one barring the present and future boards from re-instating the ID policy) and the plaintiffs had refused it.

    Mooting the case was simply not going to happen, period

    Who are you to predict how a judge is going to rule (the only way you knew was that Judge Jones improperly assured that the board changeover would not affect his decision)? Judges often pull big surprises.

    Another possibility is that if the new board rescinded the ID policy and offered a reasonable consent decree which the plaintiffs refused, the judge could have dismissed the case without prejudice, meaning that the plaintiffs could refile the suit if a future school board re-instated the ID policy.

    Of course, if the old board had offered the consent decree, then the old board could have been accused of acting in bad faith by trying to pull out at the last minute after letting the plaintiffs expend a lot of time and money. But the new board consisted almost entirely of new members who bore no responsibility for the actions of the old board.

    A non-activist judge who wanted to avoid ruling on some of the contentious issues in the Dover case would have welcomed an excuse to avoid ruling on the merits. The US Supreme Court`s dismissal of the Marco DeFunis reverse-discrimination case is a good example of making a finding of mootness in order to duck issues. All of the grounds for complaint in the Marco DeFunis case were still in place — the only thing that had changed was that he was about to graduate and that therefore the discriminatory admission policies could never personally affect him. Ironically, one of the main causes of this “mootness“ in the DeFunis case was the slow progress of the case through the court system ( DeFunis had been admitted to law school as a result of a lower court`s decision and so was about to graduate when the case was reviewed by the Supreme Court ). So here was a case that was declared moot even though there was no change in government policy, and you are telling me that a case cannot be declared moot even if there is a change in government policy!

    So you think that courts are completely predictable. Do you think that no one was surprised by the Supreme Court`s ruling of mootness in the DeFunis case?

    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.

    This isn’t a good argument, it’s a bad argument, and I’ve already answered it in the other thread you posted a message on. See http://scienceblogs.com/dispatches/2006/04/francisco_discovers_weasel_wor.php#comment-65039

    OK, you made a good rebuttal here. However, if the argument were as bad as you claim, someone else would have attempted to rebut it by now. My argument seemed plausible to me because of the striking suddenness and near completeness of the changeover in the Dover school board membership.

    Interestingly, in the Hurst v. Newman case (El Tejon, Calif.; the case did not go to trial), the school board was not named as a defendant but the school board members were named as defendants, both as individuals and in their official capacities as school board members. So even if they had been voted off the board, presumably they could have still appealed the case as individuals !

    Andrew Shaw is a general practitioner focusing in Estate Planning and Real Estate.

    That certainly doesn’t make him an expert on this subject.

    I`m not even an attorney at all — yet look at all the good arguments I have come up with in favor of Shaw`s proposal !

    Shaw made a written analysis which was first submitted to the board at the mid-November meeting (the last meeting of the old board). I presume that none of us have seen the analysis, so we are not in a position to judge it. And even if Shaw`s proposal was a longshot, it was still worth a try.

    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”

    Uh, who has made this “incredible argument”?

    Maybe that argument was not explicitly made, but it was certainly implied by those who complained that if the judge declared the case to be moot, the plaintiffs would not be awarded attorney fees (unless they received attorney fees as part of a consent decree). What I am saying is that the issue of attorney fee awards should have no influence on the decision of whether or not to declare a case to be moot.

    A bill has been introduced in Congress to prohibit attorney fee awards in establishment clause cases. If that bill is enacted into law, there will be no possibility that the issue of attorney fee awards could be considered in decisions on these cases.

    The president of the board didn’t say that more input was needed; it was indeed a foregone conclusion that the board was going to do it. But she said she was going to allow comment and that is consistent with the usual manner that things are done.

    The board president knew that the Jan. 3 meeting would be too late to take action to try to moot the case — the judge said that he planned to release his decision in late December or early January. The subject had already been debated to death and it was time to take action. Also, a special meeting (24 hours notice) or an emergency meeting (no notice) could have been scheduled to deal with the matter. Also, another point is that several school board members said in mid-November that they opposed Napierskie`s and Shaw`s proposal.

    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.

    Nonsense. Judge Jones was only stating what the law said accurately. Was he supposed to play pretend and lie about it?

    No — that was not what the law said accurately (see discussion above). He did not have to “lie“ — he should have just remained silent. Anyway, despite this statement of Judge Jones, he could have been overruled by a higher court, so this statement is no excuse for the board`s failure to take action in December.

    And even if they had wanted to negotiate a settlement, those negotiations could not begin until after Dec 5th because the new school board had no authority to negotiate on behalf of the school district.

    The decision was released on Dec. 20, so there was still some time for negotiation. If the school board had rescinded the ID policy in early December and offered to sign a consent decree, Jones might have — and should have — delayed release of his decision to allow time for negotiations.

    As I said — even if Napierskie`s and Shaw`s proposal to try to moot the case was a longshot, it was still worth a try.

  4. #4 Soren Kongstad
    April 9, 2006

    As I said — even if Napierskie`s and Shaw`s proposal to try to moot the case was a longshot, it was still worth a try.

    I think Ed has made a good case as to why the idea that the proposal would not change anything.

    But it seems that you at least agree that it was in no way obvious that rescinding the policy would make the case moot.

    Actually the board was told by its own legal representation that it wouldn’t be so.

    So the charges of the new board being in cahoots with the ACLU and what have you, and planning for unnecessarily costing the school district millions of dollars are just ridiculous!

    Do you not agree with this?

    And please – cant you guys stop with the activist judge already. It’s starting to sound like a broken record.

  5. #5 Ed Brayton
    April 9, 2006

    Larry wrote:

    Wrong. Settling has the effect of mooting the case. Once all parties agree to a consent decree that settles the case, that is the end of the case — period. There is no judgment on the merits.

    Of course the effect is the same, but the effect is achieved in entirely different ways. In order to moot the case, the defendants would have to voluntarily rescind the policy and then ask the judge to dismiss the case, while the plaintiffs would argue against dismissal. In order to settle the case, the defendants would have to get the plaintiffs to agree to drop the case in exchange for a voluntary rescinding of the policy, a consent decree never to put it back in place again, and a substantial settlement on the legal fees. They then go to the judge together and say, “We’ve reached a settlement, the complaint is being dropped, thanks for your time” and that’s that. The difference for your argument is monumental. You’re arguing that they should have tried to moot the case when in reality the only way they could have avoided the ruling was to settle the case. Settling requires that the plaintiffs agree to it and there was no reason at all for them to do so, as I explained in great detail (and as you ignored).

    Defendants often agree to consent decrees in order to avoid a possible judgment of guilt or wrongdoing. Consent decrees often stipulate that the defendant does not admit wrongdoing. The only issue here is what Judge Jones might have done if the new school board had offered a reasonable consent decree (one barring the present and future boards from re-instating the ID policy) and the plaintiffs had refused it.

    That isn’t an issue at all. If there is no settlement, there is no settlement. It’s not an arbitration hearing, the judge can’t impose a settlement in the case. If the defense had offered a settlement and the plaintiffs refused it – which is exactly what they would have done – then the case simply continues as it is. There is no “Motion to Dismiss on Grounds that the Other Side Won’t Agree With Us”.

    Who are you to predict how a judge is going to rule (the only way you knew was that Judge Jones improperly assured that the board changeover would not affect his decision)? Judges often pull big surprises.

    For crying out loud, Larry, you just answered your own question – the judge said that rescinding the policy was not going to moot the case (it could still be settled, remember, but it could not be mooted). And there was nothing the least bit improper about it, he was accurately stating the law. I’ve cited you both Federal procedural rules and case law that explicitly confirms that a voluntary cessation, absent an actual settlement, was not grounds for mooting the case. You’ve ignored all of it so that you can continue to indulge this ridiculous fantasy.

    Another possibility is that if the new board rescinded the ID policy and offered a reasonable consent decree which the plaintiffs refused, the judge could have dismissed the case without prejudice, meaning that the plaintiffs could refile the suit if a future school board re-instated the ID policy.

    And then the dismissal would get appealed by the plaintiffs, the case would have been remanded back to the district court for a ruling. Larry, do you just close your eyes whenever you get to the part where I mention the case law and the actual legal standards for voluntary cessation? Do you just say “I didn’t see that, I didn’t see that” over and over again until you convince yourself that it doesn’t exist? The legal standards for mooting a case are well established. A voluntary rescinding of the policy without a settlement in this case would not meet any existing precedent or standard. Period. Done. End of argument. Finito. Take your ball and go home. You’ve been a great audience, don’t forget to tip your waitresses. The end. Nut full house no good, you go home now (that’s an obscure one, for the poker players out there).

    You seem to inhabit this fantasy world where there’s a “possibility” that a judge is going to rule not on the existing case law but on how Larry Fafarman thinks it should be handled. Do you get a lot of calls from judges asking your opinion, Larry? Do you see a lot of judges wearing “What Would Larry Do” bracelets?

    A non-activist judge who wanted to avoid ruling on some of the contentious issues in the Dover case would have welcomed an excuse to avoid ruling on the merits.

    Only under an idiot’s definition of “activist”. You seem to think that “non-activist” means a judge who doesn’t want to be a judge and doesn’t want to rule on cases. That’s ridiculous, like most of your arguments.

    The US Supreme Court`s dismissal of the Marco DeFunis reverse-discrimination case is a good example of making a finding of mootness in order to duck issues. All of the grounds for complaint in the Marco DeFunis case were still in place — the only thing that had changed was that he was about to graduate and that therefore the discriminatory admission policies could never personally affect him. Ironically, one of the main causes of this “mootness“ in the DeFunis case was the slow progress of the case through the court system ( DeFunis had been admitted to law school as a result of a lower court`s decision and so was about to graduate when the case was reviewed by the Supreme Court ). So here was a case that was declared moot even though there was no change in government policy, and you are telling me that a case cannot be declared moot even if there is a change in government policy!

    That’s the Supreme Court, Larry. Let’s take a lesson in Con Law 101: the Supreme Court is not bound by precedent (except to the extent that they choose to be, of course). District courts, on the other hand, are bound by precedent. The judge was very careful to apply every potential precedent that a higher court might choose to apply to the case, yet your whole argument rests on the notion that he might have just suddenly forgotten that and ignored all the case law. Again, it just wasn’t gonna happen. The judge said it wasn’t gonna happen. You don’t realize how much you’re contradicting yourself. On the one hand, you criticize the judge for saying that the case could not be mooted by a voluntary rescinding of teh policy by the new board; on the other hand, you keep saying, “Well how do you know how the judge was gonna rule if the board had rescinded the policy?”. DUH. Get a clue, Larry.

    OK, you made a good rebuttal here. However, if the argument were as bad as you claim, someone else would have attempted to rebut it by now.

    Okay, that one made me laugh out loud when I read it. “Okay, I know the argument is bad, but if it was as bad as you think it is, someone else would have pointed out how bad it was before you.” By that, uh, “logic”, one could argue that if airplanes are really that cool, someone would have invented them in the 15th century. Larry, don’t you ever get tired of making bad arguments?

    Maybe that argument was not explicitly made, but it was certainly implied by those who complained that if the judge declared the case to be moot, the plaintiffs would not be awarded attorney fees (unless they received attorney fees as part of a consent decree). What I am saying is that the issue of attorney fee awards should have no influence on the decision of whether or not to declare a case to be moot.

    And it doesn’t have any influence on the decision of whether to declare a case moot. What does influence the decision is the existing case law on when a judge can moot a case. You know, all those pesky little facts you insist on pretending don’t exist.

    The board president knew that the Jan. 3 meeting would be too late to take action to try to moot the case — the judge said that he planned to release his decision in late December or early January.

    And the judge said the case could not be mooted (stop me if you’ve heard this before, Larry), as did everyone else involved in the case. That means the only way to avoid a ruling was to settle it. But settling requires the plaintiffs’ agreement, which they weren’t going to get. And settlement negotiations could not even begin until after Dec. 5th. There was no need to rescind the policy in order to start such negotiations. That’s what you negotiate about.

    No — that was not what the law said accurately (see discussion above). He did not have to “lie“ — he should have just remained silent. Anyway, despite this statement of Judge Jones, he could have been overruled by a higher court, so this statement is no excuse for the board`s failure to take action in December.

    Keep ignoring all that binding precedent, Larry. Someday it may actually disappear like you hope it will.

    The decision was released on Dec. 20, so there was still some time for negotiation. If the school board had rescinded the ID policy in early December and offered to sign a consent decree, Jones might have — and should have — delayed release of his decision to allow time for negotiations.

    Yet another fantasy where you think the courts will do whatever you think they should have done rather than what the case law says they have to do. YOu’re still ignoring the fact that the plaintiffs had no reason to settle the case. By your own admission, they were almost certain to win the case within a couple weeks. What possible incentive would they have to settle? None. Without a settlement, there is no avoiding the ruling. Jesus Christ, Larry, give up.

  6. #6 LarryFarma
    April 10, 2006

    Reply to post by Ed Brayton | April 9, 2006 02:14 PM

    We can argue from now till doomsday whether the new board had a chance of having the case declared to be moot. But many Dover taxpayers are not going to care about the details of the pro-and-con arguments. All that will matter to them is that the school board failed to give it the good old college try when it would not have hurt to try.

    Furthermore, several board members indicated in mid-November that they did not want an out-of-court settlement even if they could have gotten one. A mid-November news article said, “It doesn’t look like incoming board members will adopt Napierskie’s idea. Several incoming board members, including Patricia Dapp, Terry Emig and Judy McIlvaine, said they want to hear what the judge has to say in the case.“ From http://www.ydr.com/doverbiology/ci_3223198

    In charging the Dover school board with failure to act, the Discovery Institute et al. know that often the best defense is an “offense.” They know that the new school board members are not all that popular in Dover — they barely won their seats running against a bunch of bungling and sometimes dishonest fundies who were potentially running up a big legal bill. The charge that the new board members were in cahoots with the ACLU was made during the election campaign ( http://www.ydr.com/doverbiology/ci_3219253 ) — one would think that they would have bent over backwards to counter that charge by taking action to try to moot the case, even if it looked like an act of desperation. In view of these facts, I think that our debate has become “moot,” but I will answer some of the issues you raised anyway.

    Wrong. Settling has the effect of mooting the case. Once all parties agree to a consent decree that settles the case, that is the end of the case — period. There is no judgment on the merits.

    Of course the effect is the same, but the effect is achieved in entirely different ways.

    Again, you are being nitpicking.

    If the defense had offered a settlement and the plaintiffs refused it – which is exactly what they would have done – then the case simply continues as it is.

    I have never heard of a judge dismissing a case as moot — or maybe dismissing a case without prejudice — when the defendants ceased the challenged activity and the plaintiffs rejected a reasonable consent decree barring resumption of the activity, but it could happen. In the Dover case, the judge could take into account the fact that almost all of the board members were new and bore no responsibility for the actions of their predecessors. There would still be the issue of attorney fees, but as I said, this issue should not affect a decision on whether or not to declare a case to be moot, and you agreed.

    Also, it has been argued that there was no point in seeking an out-of-court settlement because the case was almost finished, with the decision due in a matter of days. But what if the board had offered a reasonable out-of-court settlement much earlier in the case but the plaintiffs had insisted on wasting large amounts of judicial resources by seeing the case through to the bitter end? The waste of judicial resources is a serious matter because court costs are very heavily subsidized by taxpayers and also because resources used on one case are denied to other cases that might badly need the resources.

    In a court case where the plaintiffs are virtually certain to win and are eligible for an award of attorney fees, what would give the plaintiffs an incentive to agree to a reasonable out-of-court settlement except a threat that the judge will dismiss the case if they don`t? In the Hurst v. Newman (El Tejon, Calif.) case, the parties agreed to an out-of-court settlement before the case went to trial. But what if the plaintiffs, confident that they were going to win a judgment on the merits and be awarded attorney fees, had said, “no, we don`t want an out-of-court settlement“ ? According to you, there was nothing the judge could have done. OK, that was before the trial started. But if there is a “point of no return“ in a lawsuit, where is that point ? You accuse me of asking stupid questions. Well, stupid questions are supposed to get stupid answers, so you maybe you could give me some stupid answers to these stupid questions.

    Also, what could happen if that proposed law prohibiting attorney fees in establishment clause cases goes into effect? Then the issue of attorney fees could not be a factor (we agreed that they should not be a factor anyway).

    You seem to think that “non-activist” means a judge who doesn’t want to be a judge and doesn’t want to rule on cases.

    Hardly anyone wants to be a judge as badly as the Supreme Court justices, and they often try very hard to duck controversial issues.

    The US Supreme Court`s dismissal of the Marco DeFunis reverse-discrimination case is a good example of making a finding of mootness in order to duck issues.

    That’s the Supreme Court, Larry. Let’s take a lesson in Con Law 101: the Supreme Court is not bound by precedent

    The precedent established by the Supreme Court in the DeFunis case is that courts can dismiss cases for the most frivolous of reasons. A court held that a failure to give a required 60-day notice before filing an environmental lawsuit was not a correctable error, and that decision was upheld by the US Supreme Court. The 9th Circuit court of appeals once ruled that a plaintiff had no standing to sue because she had not accepted the compensation that was offered by the government — I don`’t know the reasoning behind this decision (this decision was overruled by the Supreme Court). She was barred from building on environmentally sensitive land and as compensation was offered building permits which she could sell to landowners who were allowed to build on their land, but she claimed that the money from the sales of the permits would not adequately compensate her for the loss of value to her property.

    OK, you made a good rebuttal here. However, if the argument were as bad as you claim, someone else would have attempted to rebut it by now.

    Okay, that one made me laugh out loud when I read it.

    What is so funny? No one else claimed that my argument was in error, let alone tried to rebut it.

    Yes, I know — my arguments are so absurd that it is not even necessary to point out their absurdity. Yet people have gone to great lengths to try to refute other arguments of mine.

    There was no need to rescind the policy in order to start such negotiations. That’s what you negotiate about.

    Rescinding the ID policy immediately would have been a sign of good faith. Time was very short and dramatic action needed to be taken if there was to be any hope of starting a negotiating process.

    Without a settlement, there is no avoiding the ruling. Jesus Christ, Larry, give up.

    Why should I give up? The stronger the case I can make that the board should have acted in December, the worse the board looks, and that is part of the idea.

  7. #7 Jeff Hebert
    April 10, 2006

    Larry said:

    The stronger the case I can make that the board should have acted in December, the worse the board looks, and that is part of the idea.

    So you admit you’re out to smear the board, to make them look as bad as possible? Regardless of the facts, obviously.

    Congratulations, this is the first honest thing I’ve seen you post. Pathetic and contemptible, but honest.

  8. #8 dkew
    April 10, 2006

    Why does anyone respond to a deranged troll with diarrhea of the fingers? Seems like there are always better ways to spend your time, such as picking your nose, watching televised sports or solving sudoku.

  9. #9 Dave S.
    April 10, 2006

    Larry says:

    We can argue from now till doomsday whether the new board had a chance of having the case declared to be moot.

    I don’t think repeating the same claims ad nauseam constitutes argument. You need to address the actual legal arguments and case law when it comes to voluntary cessation. The law seems pretty clear that doing so is not grounds for mooting a case, as the judge told them. I’m not a legal expert myself, but you seem to be avoiding those arguments and tossing out irrelevancies.

    But many Dover taxpayers are not going to care about the details of the pro-and-con arguments. All that will matter to them is that the school board failed to give it the good old college try when it would not have hurt to try.

    A try which had zero chance of doing anything, except maybe illegitimize the brand new school board in the eyes of some (by ramming their views through without allowing input) before it even got to discuss a single issue.

    I like how you seem to completely ignore the old school board, where a group of determined individuals with a religious agenda, against their own legal advise and in collusion with an outside legal firm (a move which by the way exposed them to financial damages in the first place as it voided their insurance), got Dover in this mess in the first place. Yeh, they had nothing to do with it…

    I think the good citizens of the district know who’s to blame. The ones they voted out.

    In charging the Dover school board with failure to act, the Discovery Institute et al. know that often the best defense is an “offense.”

    The DI got their asses handed to them in this case and they know it. That’s why the best they can muster is to try to deflect blame onto the new school board. It’s pathetic, but obviously there are some people that buy into it.

    In the Dover case, the judge could take into account the fact that almost all of the board members were new and bore no responsibility for the actions of their predecessors.

    So what? Couldn’t these new board members be voted out in favour of new pro-ID candidates just as easily? Why should that new board be bound by the agreements of a different board? They could simply approach the teaching of ID from a different angle (for example by using ‘critical evaluation of evolution’ as a cover) and Dover would be right back into it.

    Also, it has been argued that there was no point in seeking an out-of-court settlement because the case was almost finished, with the decision due in a matter of days.

    Don’t forget that plaintiffs had no reason to settle. The only question then was how inclusive the victory would be. Would it be broad (as many expected) or narrow. Turns out, it was broad.

    But what if the board had offered a reasonable out-of-court settlement much earlier in the case but the plaintiffs had insisted on wasting large amounts of judicial resources by seeing the case through to the bitter end? The waste of judicial resources is a serious matter because court costs are very heavily subsidized by taxpayers and also because resources used on one case are denied to other cases that might badly need the resources.

    If defendants were so concerned with the cost, then maybe they shouldn’t have knowingly exposed the district to it as they did in the first place. The plaintiffs can’t be forced to take a settlement Larry. That’s absurd. The judge has to decide the case on its merits…he can’t decide based on punishing one side for not taking a deal.

    What is so funny? No one else claimed that my argument was in error, let alone tried to rebut it.

    Truly awful logic. Just because a lot of people didn’t point out a mistake, doesn’t mean you didn’t make one. One person pointing it out is enough. At least, it should be for any rational person.

    Rescinding the ID policy immediately would have been a sign of good faith. Time was very short and dramatic action needed to be taken if there was to be any hope of starting a negotiating process.

    There was no hope of the case being mooted, and there was no chance the plaintiffs would settle. Although the new board could have rammed this policy through, there was absolutely no reason to do so as it would accomplish nothing at all.

    Why should I give up? The stronger the case I can make that the board should have acted in December, the worse the board looks, and that is part of the idea.

    Repetition of poor arguments is not building a case. Your case is being made stronger only in your own mind Larry.

  10. #10 Raging Bee
    April 10, 2006

    Larry’s self-undermining bloviating can be amusing, in a sad and tedious sort of way. Check this out:

    OK, you made a good rebuttal here. However, if the argument were as bad as you claim, someone else would have attempted to rebut it by now.

    So Larry now admits that his argument has indeed been punk’d, junk’d, debunk’d and defunc’d, but he insists that it’s still plausible because it wasn’t debunk’d soon enough?! This just shows Larry’s sheer obstinate, laughable idiocy, not to mention his shambling, pathetic attempts to make himself seem relevant to himself.

    It also shows that he’ll never face reality or try to argue as an adult on an adult level.

  11. #11 Raging Bee
    April 10, 2006

    If there’s one thing more disgraceful than a bully, it’s a bully who doubles as a crybaby. The far-right bullies tried to impose their own narrow little religion on the kids in Ohio (ignoring the rights and obligations of the kids’ parents), the voters fought back, and now the bullies are crying about how hurt they are and how much damage was done in the fight.

    So…how much money have the creationists voluntarily offered to pay for the lawsuit? Any effort on their part to minimize the financial damage to a school district, so it can go on educating kids? (The very least I can say about Al Sharpton’s idiot followers, is that they stood by their man and made contributions to pay the damages the court imposed on him. Any such loyalty from the IDiot camp?)

  12. #12 atari24
    April 10, 2006

    What the hack is so hard to understand about this? Its the fault of the original board that this suit happened. If you want to blame someone, blame them.

  13. #13 Ed Brayton
    April 10, 2006

    Larry wrote:

    We can argue from now till doomsday whether the new board had a chance of having the case declared to be moot. But many Dover taxpayers are not going to care about the details of the pro-and-con arguments. All that will matter to them is that the school board failed to give it the good old college try when it would not have hurt to try.

    I couldn’t possibly care any less who the Dover taxpayers want to blame; I care about what is true and justified. If the Dover taxpayers buy into your ridiculous arguments, that doesn’t make those arguments any less ridiculous. 50,000 Frenchmen can be wrong. Frankly, I’m just tired of answering the same bad arguments over and over again and I’m not even going to bother fisking this one line by line. The fact – and it is a fact, whether you want to believe it or not – is that there is no way that Judge Jones could have mooted the case two weeks before his ruling was released absent a settlementwithout violating numerous precedents. And the fact is that the plaintiffs had no incentive whatsoever to settle the case because they knew they were going to win. And furthermore, the fact is that there was no way they were going to be able to settle the case without paying the same amount in legal fees. All of which means that this fantasy scenario of a board intentionally costing the school district their children attend a million dollars is pure delusion.

    All of this nonsense is about nothing more than trying to shift the real blame for this debacle from the old board, which adopted an unconstitutional policy that they were told by their own legal counsel and by the main ID organization that they were going to lose. You admit as much when you say:

    Why should I give up? The stronger the case I can make that the board should have acted in December, the worse the board looks, and that is part of the idea.

    That is the entire idea, to make the board look bad even if you have to make bad arguments to that effect until you’re blue in the face. But Larry, you’re really only making yourself look bad because everyone with an IQ over room temperature can see right through your arguments.

  14. #14 Raging Bee
    April 10, 2006

    In the previous post, ED wrote:

    Come on Larry, you can’t be so stupid that you don’t recognize the absurdity of this argument.

    He’s not. He’s explicitly admitted, numerous times, that he knows ID is bad science, and that his own arguments are ignorant and dishonest. His whole Purpose in Life is to repeatedly post idiotic assertions and arguments, thus allowing his creationist chums to pretend that both “Darwinism” and judge Jones’ decision are “controversial.”

    PS: Hey, Larry, why are you using multiple names? Hiding from something?

  15. #15 LarryFarma
    April 10, 2006

    Dave S. wrote –

    Don’t forget that plaintiffs had no reason to settle. The only question then was how inclusive the victory would be.

    Why did the plaintiffs and their attorneys make an out-of-court settlement in the Hurst v. Newman (http://www2.ncseweb.org/wp/?page_id=111) case? Why didn`t they just say, “Hey, we don`t have to settle out of court. We are going to win big and get a big fat attorney fee award ! We’re going to become rich and famous, even if we have to bankrupt a small school district to do it !”
    Dave S. wrote

    You need to address the actual legal arguments and case law when it comes to voluntary cessation. The law seems pretty clear that doing so is not grounds for mooting a case, as the judge told them

    Judges should not be giving legal advice. There is a federal law prohibiting court employees from giving legal advice, but I don`t know if this law applies to judges.

    Dave S. wrote –

    If defendants were so concerned with the cost, then maybe they shouldn’t have knowingly exposed the district to it as they did in the first place.

    At the Dec. 5 meeting, all of the school board members except one were new. They bore no responsibility for the actions of the previous school board members. The old school board might have been accused of acting in bad faith if it tried to pull out of the lawsuit at the last minute after letting the plaintiffs and their attorneys make big expenditures of time and money.

    Dave S. wrote –

    A try which had zero chance of doing anything, except maybe illegitimize the brand new school board in the eyes of some (by ramming their views through without allowing input) before it even got to discuss a single issue.

    “Without allowing input” ? The lawsuit had been a local obsession for a year. The matter had already been debated to death. The new board knew that the Jan. 3 meeting would be too late because the decision was due in late December or early January. Also, the Pennsylvania Sunshine Act requires no advance notice of actions by a public agency at a public meeting. That Act also authorizes holding “special meetings” (minimum 24 hours notice) and “emergency meetings” (no notice).

    Also, I didn`t hear any objections when the Ohio Board of Education held unannounced phony “emergency” votes on the Ohio evolution lesson plan at the January and February meetings and did not allow public comments about the plan until after the voting ( the Ohio board voted in January to keep the plan and voted in February to delete it).

    Dave S. wrote –

    I like how you seem to completely ignore the old school board

    I like it too. The actions of the old school board do not excuse the inactions of the new school board.

    Dave S. wrote –

    Truly awful logic. Just because a lot of people didn’t point out a mistake, doesn’t mean you didn’t make one. One person pointing it out is enough.

    No, you are the one with the awful logic. I never said I did not make a mistake. I just said that the mistake could not have been so bad if it took so long for someone to point out what was mistaken about it.

    Jeff Hebert wrote –

    So you admit you’re out to smear the board, to make them look as bad as possible?

    The new board members “smeared” themselves. Several of them said in mid-November that they did not want an out-of-court settlement even if they could get one. The new school board members could have avoided all of this condemnation if they had taken action in December.

    Soren Kongstad wrote –

    And please – cant you guys stop with the activist judge already. It’s starting to sound like a broken record.

    We keep calling him an activist judge because he took the unusual step of denying in his Dover opinion that he is one.

    Raging Bee wrote –

    PS: Hey, Larry, why are you using multiple names? Hiding from something?

    I am not using multiple names here. I have always posted under “LarryFarma“ on this blog. I used my real name on Panda`s Thumb until the staff there decided to ban me even though I had not broken any ot the rules.

  16. #16 Dave S.
    April 10, 2006

    Why did the plaintiffs and their attorneys make an out-of-court settlement in the Hurst v. Newman …

    I’m talking about this case.

    Judges should not be giving legal advice.

    He wasn’t giving advice. He was telling them what the law is.

    The old school board might have been accused of acting in bad faith if it tried to pull out of the lawsuit at the last minute after letting the plaintiffs and their attorneys make big expenditures of time and money.

    They bear the responsibility for initiating this nonsence in the first place.

    “Without allowing input” ? The lawsuit had been a local obsession for a year. The matter had already been debated to death. The new board knew that the Jan. 3 meeting would be too late because the decision was due in late December or early January.

    But this was a new board Larry. Of course they were set against the old policy. That does not mean they can’t let anyone get their say on record. The board also knew full well that repudiating the policy of the old board would have no effect on mooting the case. Your fantasies notwithstanding.

    I just said that the mistake could not have been so bad if it took so long for someone to point out what was mistaken about it.

    Which is awful logic.

    You’re getting boring Larry. Try a new act.

  17. #17 Rilke's Granddaughter
    April 10, 2006

    So, Larry, let me get this straight:

    You are a liar. (Self-admitted)

    You are a malicious crank. (Self-admitted)

    You are ignorant of the law. (Self-admitted)

    You are unwilling or unable to use reason. (Self-admitted)

    And we should accept your opinions…why, exactly?

  18. #18 LarryFarma
    April 10, 2006

    Posted by: Ed Brayton | April 10, 2006 11:27 AM

    Frankly, I’m just tired of answering the same bad arguments over and over again and I’m not even going to bother fisking this one line by line

    No, they are not the same “bad“ arguments. I keep introducing new arguments which my adversaries often conveniently ignore.

    I used the Hurst v. Newman case (El Tejon school district, Lebec, Calif.) as an example of a case where an out-of-court settlement was reached. I made the following points –

    (1) Where the plaintiffs are confident of winning a judgment on the merits and getting a big attorney fee award, there should be some incentive for them to accept an offer of a reasonable out-of-court settlement. The threat that the judge might dismiss the case if they do not accept such a settlement offer provides such an incentive.

    (2) In the Hurst v. Newman case, an out-of-court settlement was reached just a few days after the lawsuit was filed. Is there a “point of no return“ in a lawsuit after which the judge must make a decision on the merits if an out-of-court settlement is not made? If so, where is that point, or where should it be? I think that any answer to that question must be arbitrary.

    Also, there is still the issue of whether or not the issue of attorney fee awards should be considered to be a factor in deciding whether or not to dismiss a case as moot. There seems to be some general agreement that this issue should not be such a factor. However, it is possible that this issue will enter into the question of whether or not an out-of-court settlement offer is reasonable, particularly where attorney fee awards are authorized by statute. In many cases, attorney fee awards are not authorized by statute, and they may even be prohibited by statute (a bill has been introduced in Congress to prohibit awards of attorney fees in establishment clause cases).

  19. #19 Dave S.
    April 10, 2006

    “Yes your honor….I know I was driving drunk and possibly asleep at the time of the accident, but the real villain here is the guy in the back seat. I mean, he didn’t even try to dive over my shoulder and hit the brakes with his hands.”

  20. #20 Ed Brayton
    April 10, 2006

    And you’re still wrong, Larry. The Hurst case was settled before if ever went to court, before there was ever even a brief written except for the complaint. Very little money was spent by either side, so a settlement was easy to do. That is totally contrary to the Kitzmiller case where $2.5 million was spent by the time it was even possible for there to be a settlement in the case, and that was two weeks before the ruling came down. No one disputes that cases can be settled, for crying out loud, but you’re still dodging the obvious fact that there was no way in hell the plaintiffs were going to settle this case two weeks before the ruling came down, especially not without the board still having to pay the money they ended up paying. I’m not speculating on this, Larry, I know it for a fact because of my involvement in the case. There was zero chance that the plaintiffs were going to settle at that point. Early in the trial, maybe. After December 5th? It’s more likely that you’ll make a coherent argument than that such a settlement would have happened. And without a settlement that dropped the financial arrangement, you have no argument.

  21. #21 Ed Brayton
    April 10, 2006

    Dave-

    Great analogy.

  22. #22 Raging Bee
    April 10, 2006

    I used my real name on Panda`s Thumb until the staff there decided to ban me even though I had not broken any ot the rules.

    Really? You never offered that explanation on PT, despite being asked about it dozens of times. You simply ignored the question. Why does this explanation suddenly appear on another blog? Perhaps, had you offered it where it was demanded, the PTers would have known you were full of it?

  23. #23 LarryFarma
    April 10, 2006

    Ed Brayton | April 10, 2006 03:06 PM

    And you’re still wrong, Larry. The Hurst case was settled before if ever went to court, before there was ever even a brief written except for the complaint. Very little money was spent by either side, so a settlement was easy to do.

    You missed my point. If the plaintiffs and their attorneys in the Hurst case were confident of winning a judgment on the merits and getting a big attorney fee award, then what was the incentive to settle out of court? According to your previous arguments, if the plaintiffs in the Hurst case had rejected what the judge thought was a reasonable out-of-court settlement offer, there was nothing he could have done about it — the lawsuit had to proceed. You are conveniently changing your story now.

    Here is what you wrote before (comment of April 9, 2006 02:14 PM ) —

    If there is no settlement, there is no settlement. It’s not an arbitration hearing, the judge can’t impose a settlement in the case. If the defense had offered a settlement and the plaintiffs refused it — which is exactly what they would have done — then the case simply continues as it is. There is no “Motion to Dismiss on Grounds that the Other Side Won’t Agree With Us”.

  24. #24 Roger Tang
    April 10, 2006

    You missed my point. If the plaintiffs and their attorneys in the Hurst case were confident of winning a judgment on the merits and getting a big attorney fee award, then what was the incentive to settle out of court?

    Someone quite experienced in law would be able to answer that, Larry.

    And actually, someone with a smidge of common sense could answer this as well; try not to make arguments in a vacuum–you’re ignoring all the real world concerns of the parties involved. Law ain’t no debating society; there are usually matters at stake. You consistently ignore that.

  25. #25 Ed Brayton
    April 10, 2006

    Larry wrote:

    You missed my point. If the plaintiffs and their attorneys in the Hurst case were confident of winning a judgment on the merits and getting a big attorney fee award, then what was the incentive to settle out of court? According to your previous arguments, if the plaintiffs in the Hurst case had rejected what the judge thought was a reasonable out-of-court settlement offer, there was nothing he could have done about it — the lawsuit had to proceed. You are conveniently changing your story now.

    Jesus H. Christ on a popsicle stick, Larry, are you really this dense? The Hurst case was a week old when it was settled. Kitzmiller was virtually done. The plaintiffs had no reason to be confident of anything. The case hadn’t even been assigned to a judge yet, no discovery had taken place, no testimony taken. In Dover, the case was over and it went brilliantly well for the plaintiffs. Those plaintiffs had reason to feel very confident and had an enormous amount invested that the plaintiffs in Hurst did not. That’s why a settlement was accepted in one case and not in the other. This should be obvious to anyone who isn’t a moron; the fact that it’s not obvious to you should probably tell you something. And in neither case could the judge force either side to accept a settlement. If the case isn’t settled, it goes to court unless it’s dismissed for cause. The judge is not an arbitrator, his job is to decide the case on the merits.

  26. #26 LarryFarma
    April 10, 2006

    From Ed Brayton | April 10, 2006 05:15 PM

    The Hurst case was a week old when it was settled. Kitzmiller was virtually done. The plaintiffs had no reason to be confident of anything.

    You are still dodging the question.

    The plaintiffs in the Hurst lawsuit actually thought that they had a very good case. And maybe they thought they had nothing to lose — the attorneys would work for free and the taxpayers would pay almost all of the court costs — and a lot to gain. But let us just suppose hypothetically that — for whatever reason — they rejected what the judge thought was a reasonable out-of-court settlement offer. Would the judge or could the judge have then dismissed the case as moot or dismissed it without prejudice or whatever ? That is the question. According to your reasoning, the answer is no.

    Also, as for the issue of attorney fees in out-of-court settlements in establishment clause cases, this issue will disappear if that bill to bar awards of attorney fees in establishment clause cases is enacted into law.

    Anyway, as I said, this whole discussion is really moot so far as blaming the new school board members is concerned, because they got conflicting legal advice in December and so the right thing to do then was to try to moot the case. Nothing that anyone says now will change that.

  27. #27 Ed Brayton
    April 10, 2006

    larry wrote:

    But let us just suppose hypothetically that — for whatever reason — they rejected what the judge thought was a reasonable out-of-court settlement offer. Would the judge or could the judge have then dismissed the case as moot or dismissed it without prejudice or whatever ? That is the question. According to your reasoning, the answer is no.

    Larry, the answer is no. It’s not no “according to my reasoning”, it’s just plain no. The defense already tried a motion to dismiss early in the Kitzmiller case; the judge ruled against it. Once it has been established that there is a legitimate cause of action, the judge cannot force a settlement on threat of dismissal. I even called a friend of mine who teaches constitutional law to make sure that there’s no strange provision I’m not aware of and he confirmed this. A case can be dismissed for failure to state an actionable claim, it can be dismissed for lack of standing, but it cannot be dismissed because the judge thinks one side should have settled the case.

    Also, as for the issue of attorney fees in out-of-court settlements in establishment clause cases, this issue will disappear if that bill to bar awards of attorney fees in establishment clause cases is enacted into law.

    Which has precisely nothing to do with this case. And no matter what happens with that bill, it won’t change the fact that a judge cannot enforce a settlement or dismiss a case for failure to settle. The monetary issue has nothing to do with that question.

    Anyway, as I said, this whole discussion is really moot so far as blaming the new school board members is concerned, because they got conflicting legal advice in December and so the right thing to do then was to try to moot the case.

    No, they did not get conflicting advice. Their attorney told them the case could not be mooted and he was right. The plaintiffs’ attorneys said the case could not be mooted; they were right. The defense attorneys said the case could not be mooted; they were right. The judge said the case could not be mooted; he was right. A nobody real estate lawyer that the board never spoke to, who clearly was unaware of all the case law on the subject, said that it could be mooted; he was wrong. Just like you’re wrong. The only way to end the case was with a settlement, which the plaintiffs would not have agreed to – and again, Larry, this is not speculation on my part. I know it for a fact and I know what I’m talking about.

  28. #28 LarryFarma
    April 11, 2006

    From Ed Brayton | April 10, 2006 07:38 PM

    Larry, the answer is no. It’s not no “according to my reasoning”, it’s just plain no. The defense already tried a motion to dismiss early in the Kitzmiller case; the judge ruled against it. Once it has been established that there is a legitimate cause of action, the judge cannot force a settlement on threat of dismissal. I even called a friend of mine who teaches constitutional law to make sure that there’s no strange provision I’m not aware of and he confirmed this

    Let`s go over this again. You keep changing the subject in order to dodge my question. I was not talking about the Kitzmiller case, I was talking about the Hurst case (I am choosing the Hurst case to start with in order to eliminate the time and expense of a long trial as a factor). Suppose that the school board canceled the course in question and offered the plaintiffs a reasonable consent decree to not re-instate it, and the plaintiffs rejected the consent decree. Could the school board then have told the judge that they did their best and that the board would even follow the provisions of the unsigned consent decree, and then asked that the case be dismissed by summary judgment, even though the plaintiffs did not agree to settle? That is the question — here is the answer. FRCP Rule 12(b) says –

    If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment …. http://www.law.cornell.edu/rules/frcp/Rule12.htm

    So the defendants can present “matters outside“ the plaintiffs` complaint (i.e., the “pleading“ in the above statement), such as a reasonable consent decree which the plaintiffs rejected, and make a motion for a summary judgment to “dismiss for failure to state a claim upon which relief can be granted,“ on the grounds that the court could not possibly provide greater relief than is offered by the consent decree. So your friend who teaches constitutional law is wrong — a judge can dismiss a case because the plaintiffs refuse to sign a consent decree. But one of the problems here is that under the above FRCP Rule 12(b) the court may exclude “matters outside the pleading,“ and at least in the Kitzmiller v. Dover case it could be argued that a consent decree offered close to the end of the trial should be excluded on the grounds of being too late — however, it could also be argued that a consent decree should have been acceptable if it had been offered by new board members who bore no responsibility for the ID policy. There is one other problem, and that is that motions for defenses under FRCP Rule 12 are normally restricted to the first few weeks of a case, but FRCP Rule 12(h)(2) says that the preceding motion may be made “at the trial on the merits“ –

    “A defense of failure to state a claim upon which relief can be granted……may be made……at the trial on the merits.“

    Under the legal definition of “trial,“ the trial period extends until the final judgment or verdict. So arguably Judge Jones could have dismissed the Kitzmiller case if the plaintiffs had rejected a reasonable consent decree offered by the new school board. A truly non-activist judge who wanted to duck the controversial issues of the case (as the Supreme Court did in the DeFunis reverse-discrimination case) would have taken this opportunity to do so (but of course we all know that Judge Jones is not a non-activist judge). Also, any objections that Judge Jones might make to my above arguments could be challenged on appeal.

    There it is from the horse`s mouth — the Federal Rules of Civil Procedure. Attorney Shaw was right!

  29. #29 LarryFarma
    April 11, 2006

    2nd reply to post by Ed Brayton | April 10, 2006 07:38 PM

    In my first reply, I cited FRCP Rule 12 to show that Attorney Shaw was correct — Judge Jones could have dismissed the Kitzmiller case if the new board had rescinded the ID policy and offered a reasonable consent decree to the plaintiffs in early December, even if the plaintiffs rejected the decree. Here I will reply to some of the other points that you raised in your post.

    No, they did not get conflicting advice. Their attorney told them the case could not be mooted and he was right. The plaintiffs’ attorneys said the case could not be mooted; they were right. The defense attorneys said the case could not be mooted; they were right. The judge said the case could not be mooted; he was right. A nobody real estate lawyer that the board never spoke to, who clearly was unaware of all the case law on the subject, said that it could be mooted; he was wrong.

    When you say that the board did not get conflicting (legal) advice, you know that you are not being honest. The written analysis that was the basis of the proposal to try to moot the case did come from an attorney, even if he was not a specialist in the subject. Since we have not seen the analysis, we are not in a position to judge it. The proposal was supported by a “professor of theology and law, “ though I don`t know his qualifications.

    As for your claim that the plaintiffs` attorneys said that the proposal could not work, a news article about the presentation of the proposal at the last meeting of the old board in mid-November said, “Plaintiffs’ attorneys declined to comment.“ http://www.ydr.com/doverbiology/ci_3223198 And I see no reason why they might have decided to comment later. Anyway, any statement from them on this matter could hardly be considered to be unbiased — of course they did not want the defendants to try to have the case dismissed.

    I still think that Judge Jones had no business stating that the board changeover would not affect his decision, because that statement amounted to giving unnecessary legal advice to the board, and furthermore his viewpoint was not a disinterested one.

    As for the defense attorneys, I don`t know what they said, if anything, but their opinions were hardly unbiased.

    Here is a list of my points (including some points I made previously) –

    (1) The board had nothing to lose by following the proposal, unless the board wanted to appeal (they did not). To me, this is the most important thing, and what makes the board`s inaction inexcusable.
    (2) The board scheduled Jan. 3 for discussion of the issue, which everyone knew was too late to try the proposal. There were several ways the board could have legally handled the matter before then — for example, the board could have scheduled a “special meeting“ with short notice.
    (3) Several newly elected board members indicated in mid-November that they did not want an out-of-court settlement even if they could get one — they wanted to hear what the judge had to say in the case. See http://www.ydr.com/doverbiology/ci_3223198
    (4) The proposal had already been presented at the mid-November meeting (the last meeting of the old board), so there had already been plenty of time to review the proposal.
    (5) The fact that almost all of the board members were new and bore no responsibility for the actions of their predecessors might have been considered to be a mitigating factor by the courts.
    (6) The board`s inaction assured that the mootness question could never be considered by any court.
    (7) You are very wishy-washy about the attorney fees issue. You say on the one hand that this issue should not be a factor in deciding whether to declare a case to be moot, and on the other hand you say that failure of the parties to reach agreement on this issue should be a factor in that decision.
    (8) Courts are completely unpredictable — I have given a few examples. These examples are just the tip of the iceberg. Another example — who could have predicted that the Supreme Court would approve display of the 10 Commandments on public property in one case and at the same time disapprove it in another ?
    (9) The new board members had already been accused — during the election campaigns — of being in cahoots with the ACLU.
    (10) The old board could have done just as good a job of doing nothing as the new board. And even if the old board had been re-elected and decided to appeal, potential legal expenses would not have increased very much because an appeal would have been much cheaper than the district-court action.

  30. #30 Dan
    April 11, 2006

    So your friend who teaches constitutional law is wrong — a judge can dismiss a case because the plaintiffs refuse to sign a consent decree.

    Larry, I’m the friend who teaches constitutional law. I’ve stayed out of this until now, because all I can really add is “Larry, you’re a fucking idiot.” I’m not going to engage in a protracted discussion with you, Larry, because you are so plainly impervious to the truth that it is pointless. You know nothing about constitutional law. You know nothing about the Federal Rules of Civil Procedure. You know nothing about Rule 12(b)(6). You know nothing about summary judgment. You know nothing about mootness. You know nothing about voluntary cessation. You are, in short, a know nothing with a computer and Internet access. If a law student made the argument you made above regarding a consent decree and summary judgment on a final exam, the student would fail the exam. And no, Larry, we’re not even talking “well, there are arguments on both sides” wrong. Or “there is a good faith argument to be made” wrong. We’re talking mind-numbing, babbling idiot, mouth-breathing, you-couldn’t find-your-ass-with-two-hands-and-a-map WRONG. So wrong, it’s painful to read. So wrong, I feel like I need to scrub my brain after reading one of your incoherent ramblings.

    Of course, I’ve not even mentioned that all of your stupidity is in support of an argument that the rest of us all learned was wrong when we were five-year-olds: to wit, the five-year-old who, after being told not to touch something, touches and breaks it, then in defense claims “You didn’t stop me from doing it!” You do realize that this is the argument you’re making, right, Larry? You don’t belong here, Larry, trying to talk to the adults. You belong on the living room floor, in front of the TV, with Sesame Street on, playing the “Which One is Different” game. Give it a go, Larry. I used to play it along with my four-year-old several years back. You’ll get the hang of it, eventually.

    Ed, please, for the sake of all that is good and decent, make this idiot go away. Think of your fellow man.

  31. #31 raj
    April 11, 2006

    Ed Brayton should seriously consider charging Larry for the costs of the storage required for his drivel.

  32. #32 Ed Brayton
    April 11, 2006

    Larry, I’ve frankly just become bored with this. Now you’re either lying about what FRCP 12 says or you’re just too stupid to understand basic English. Section B6 that you cite specifically says that a case can be dismissed for failure to state an actionable claim:

    (6) failure to state a claim upon which relief can be granted

    That has nothing, absolutely nothing, to do with failure to accept a proposed settlement, it has to do with whether they’ve made a claim that the court can provide relief for under the law. There is nothing whatsoever in the standards about dismissing for failure to make a settlement that the court thinks is reasonable. Period. It couldn’t have happened in Dover, it couldn’t have happened in El Tejon either.

    I’ve had some amusement batting this mouse around for a while now, but now you’ve bored me and you’re just annoying my readers. I know that this will only feed your martyr complex, but I really don’t care. It’s my blog and I’ll do what I want here. So now it’s time for you to go away and bother someone else. Have a nice day.

  33. #33 Red Right Hand
    April 11, 2006

    Christ what a moron.

The site is currently under maintenance and will be back shortly. New comments have been disabled during this time, please check back soon.