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), the judge could not have declared the Dover case moot even if the new anti-ID school board members had rescinded the ID policy and agreed to sign a consent decree to not re-instate it in the future.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 So I think that Judge Jones would have had grounds to declare the case moot if the new board had (1) rescinded the ID policy and (2) offered to sign a consent decree to not re-instate it.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