Dispatches from the Creation Wars

New Developments in Odessa Case

A couple new developments in the NCBCPS case in Odessa, Texas. The school board there has elected new officers (not new members). Carol Gregg has replaced Randy Rives as board president and Butch Foreman is the new vice president. Foreman is shaping up to be the Bill Buckingham of this case, a man prone to bombastic statements that will come back to haunt him in court. Gregg, on the other hand, was one of the two board members who voted against the NCBCPS curriculum in 2005.

The school board also voted to send its first official response to the lawsuit, a Rule 68 Offer of Judgment. The article says:

In other business, trustees voted 6-0-1, with trustee Donna Smith abstaining, to submit a Rule 68 offer of judgment to the American Civil Liberties Union in regards to a federal lawsuit the organization filed against the school district on behalf of eight ECISD parents.

The rule states district officials say nothing’s wrong with the Bible curriculum, and the rule encourages the ACLU to settle the case, said Kelly Shackelford, chief counsel for the Liberty Legal Institute, which represents ECISD in the suit.

The ACLU has 10 days to reply to the rule, which will also be sent as a notice to the Western District court in Midland, Shackelford said.

“Maybe we won’t be able to work it out, but at least we’re trying,” Shackelford said.

So essentially they’ve made a settlement offer of some sort. I am trying to get a copy of that settlement offer or at least some confirmation of what the substance of the offer is. I’ll post the details if and when I get them. This really means very little. It’s mostly a procedural tactic to limit liability for legal fees after the case is over. The only thing that could change that analysis is if they actually offered to settle the case by eliminating the class and I can’t imagine they did that (and frankly, I hope that’s not the case; I want this case to happen). They’ve shown no signs of wanting to do anything but fight it out in court, so I doubt they’ll do that.


  1. #1 Melody
    June 21, 2007

    A Rule 68 Offer of Judgment requires that the defending party allow a judgment be entered against them. I can’t see how they can make an offer that complies with the rule that wouldn’t include ending the class (or whatever it is that the ACLU is seeking). Though, without a little research, I’m not sure what happens to the equitable claims (injunctive relief)under the rule. This tactic is really for monetary damages.

  2. #2 W. Kevin Vicklund
    June 21, 2007

    Equitable claims can be included. It’s treated just like a court-ordered settlement where the defendant agrees not to engage in the behavior in the future.

    What the Rule does is allow the defendant to try to force the plaintiff to settle before trial by offering a combination carrot/stick. The defendant makes a settlement offer that includes costs (including attorney fees if available, as in this case) more than ten days before trial. The plaintiff then has ten days to accept or reject. If he accepts, the court must enter a judgement to the terms of the offer. If he declines, everything carries on as normal.

    Almost as normal. If the final judgement (not including additional costs awarded after the offer) is greater than the offer, nothing happens. But if the final judgement is less than the offer, the plaintiff has to pay the costs accrued post-offer (or, if costs were awarded, the parties are responsible for their own costs – the costs “wash out”).

    One final twist. If the defendant offers greater than or equal to the maximum relief the court can award (including costs – which in this case includes attorney fees), the court must enter the offered judgement under Rule 12(b)(1), even if the plaintiff objects. Note that this must be a timely offer – offers made less than ten days before trial, during trial, or after trial are not valid. (The reason for this is that the rule is encourage settlement of cases before trial). Again, I emphasize: the offer must be timely, must offer full relief for all claims, and must include all costs (because this is a judgement against defendants, the conditions for awarding attorney fees as set forth by Buckhannon are met)

  3. #3 W. Kevin Vicklund
    June 21, 2007

    Btw, I detailed the implications of the Rule for people who may not be aware of it – I assume Melody and Ed already know how it works.

  4. #4 Coin
    June 21, 2007

    But if the final judgement is less than the offer, the plaintiff has to pay the costs accrued post-offer (or, if costs were awarded, the parties are responsible for their own costs – the costs “wash out”).

    Hm. What is the relevance of this rule though in those cases where the plaintiffs seek not a monetary judgment, but some kind of change in behavior? That is, after all, the exact situation in the ACLU case here.

  5. #5 W. Kevin Vicklund
    June 21, 2007

    Limiting costs, mostly attorney fees here. And possibly a way to attempt to limit what they actually concede -including, but not limited to, keeping the class but making changes that the plaintiffs would have to reject or accept in a legally binding document. I’d rather wait and see what Ed turns up before engaging in too much more speculation.

  6. #6 Ed Brayton
    June 21, 2007

    I’m really curious to see what the actual offer is in terms of the plaintiffs’ demand for injunctive relief. I spoke to one of the ACLU attorneys today and he said the order has not yet been filed so they haven’t seen it yet. As soon as they have it, though, he’ll send it on to me.

  7. #7 W. Kevin Vicklund
    June 29, 2007

    Update on the Odessa situation:

    The school board has announced a special meeting on Monday, July 2nd, at 1:30 pm. The only item on the agenda:

    Liberty Legal Institute Press Conference

    That’s the defense lawyers for the bible class case, right?

  8. #8 Ed Brayton
    June 29, 2007

    Yes, Liberty Legal Institute is representing the school. This should be interesting, probably the details on their offer to settle.

  9. #9 W. Kevin Vicklund
    July 2, 2007

    Ed: the Odessa local paper has a news article today. As expected, it’s about the Offer of Judgement.

    The pertinent stuff:

    Shackelford, who represents the district in the suit told the media today that his clients filed an official answer and a Rule 68 offer of judgment to the ACLU and other plaintiffs asking them to settle the suit and accept a $500 offer each to walk away.

    Shackelford said the district believes the Bible course has been presented and taught constitutionally as required by the U.S. Supreme Court.

    In addition, Shackelford said the district filed a motion to dismiss a portion of the lawsuit stating to name a governmental entity in a suit and the individual officials was “redundant.”

    ECISD also planned to file a motion today to put the suit into mediation with ACLU and the other plaintiffs if they didn’t accept the offer of judgment because the district wasn’t contacted prior to filing the suit, Shackelford said.

    Looks like they are trying to buy off the plaintiffs so that they can continue to teach the course. I’ll wait for further details on the Offer itself before I speculate any more than that.

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