Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Things are proceeding in the Odessa NCBCPS case and I got my hands on the first few documents filed by both sides in the case. As I reported previously, the school board, represented by the Liberty Legal Institute, has filed several motions. The first is a Rule 68 offer of judgment. This document is not publicly available but the LLI attorney said in a press conference that it was an offer of $500 for the plaintiffs to go away. Yes, the plaintiffs laughed at it. They don't want monetary damages and didn't ask for any, so this is an absolutely pointless action on the part of the school board.
The second motion they filed was a Motion to Compel Mediation. This is also pointless, since there really isn't any middle ground for mediation to be successful. The plaintiffs want the class declared unconstitutional; the school insists that it is constitutional. There's not much room there. Bizarrely, the motion refers to a dispute over monetary damages where there is no such dispute:
This should not be a case in which the parties' positions are polarized by social philosophy. This should not be a case where the parties' quest is to prevail at all costs. This should not be a case where the specter of disagreement over monetary damages fragment the prospect of effective negotiation. Rather, this should be a case where the predominating objective of all parties ultimately is to accomplish a resolution which serves best the needs and interest of the parties and the community which is served by ECISD.
It makes one wonder if they even bothered to read the plaintiffs' complaint, which does not ask for any monetary damages at all, even nominal ones. The judge may well order an attempt to mediate, but as long as the school insists on keeping the course, it's not going to do any good. The plaintiffs' response to this motion is directly on point:
Plaintiffs are open to fruitful conversation aimed at resolving this constitutional dispute. All indications from the public record, however, suggest that the Defendants have no such intent. Defendants did not confer with Plaintiffs' counsel prior to filing their motion as required by the local rules of this Court. See Rule CV-7(h). Nor did the Defendants approach Plaintiffs' counsel to explore private settlement negotiations prior to filing their motion. And the Defendants repeatedly have made clear their refusal to alter their conduct in any way to address Plaintiffs' constitutional claims.This is not, contrary to the statement in the Defendants' Motion, a case about money damages.1 Plaintiffs seek to enjoin Defendants from continuing to violate the Constitution by teaching a Bible Course that is not objective but instead impermissibly advances religion generally and a particular religious viewpoint specifically. In their Answer, filed July 2, 2007, Defendants have flatly maintained that the Course, as they are teaching it, is constitutional. Similarly, in what they have called a Rule 68 Offer of Judgment, faxed to Plaintiffs on July 2, 2007, the Defendants offered a nominal monetary payment to the Plaintiffs (who have not asked for damages), but do not offer to make any changes in the Bible Course that would render it constitutional. In their public statements to the press, the Defendants have been less restrained, with one of the Defendants suggesting that "If they [the Plaintiffs] don't have children in the class, they can kiss my butt." See Exhibit A. In short, at present there is no reason to think that mediation would prove useful because there is not the slightest indication that the Defendants are willing to consider any changes in how the Bible Course is taught.
I'm not sure which is stranger, the fact that they think they can buy off the plaintiffs or the fact that they think they can buy them off for only $500. It reminds me of the scene in Caddyshack where Judge Smails puts 50 cents in Danny Noonan's hand and says, "This is for you." Whoa, slow down there big spender.
The next motion they've filed is a Motion to Dismiss Redundant Claims. As in most cases, this suit was filed against the school district itself and against the individual board members in their official capacities (as opposed to as individual citizens). A motion to dismiss redundant claims is used to remove defendants from a lawsuit; they are essentially saying "take all of the school board members and school officials off the suit by name and just have the suit against the school district itself."
It's an irrelevant motion; even if it's granted, so what? It doesn't change anything about the case. The individual school board members can't be held responsible as individuals for the suit anyway, they can only be sued in their capacity as school board members. But here's the bizarre thing: they aren't making a motion to dismiss on the merits of the case, yet this motion to dismiss the redundant defendants contains substantive arguments on the merits. It left me scratching my head, as I'm sure it did the judge too. There is no logical reason to include substantive arguments if you aren't asking for a dismissal on the merits of the case. This is really, really amateur legal work and that is not the way to get on a judge's good side. I'm starting to think that the Liberty Legal Institute is going to make the Thomas More Law Center look competent.
Finally we come to the defendants' actual attempt to answer the complaint. The first thing that jumps out at from the brief is that they clearly recognize that there are many things in the NCBCPS curriculum that are constitutional dubious. Their main response to the allegations in the complaint is that there are some things in the NCBCPS curriculum that they don't teach in their school. They don't specific which parts are left out, of course, but that will all come out in discovery.
Another thing that jumped out at me, and yet another similarity to the Dover trial, is that the school board members quoted in the media and in the complaint making comments that suggest a religious motivation for the policy at the time of adoption are saying that they don't remember what they said to the media and therefore they deny having said them. For instance, Doyle Woodall, a member of the board, told the local paper, "This is America, it's a Christian nation." Butch Foreman, another board member, was quoted by the paper as saying that the class "would be a great thing" because it would help "the kids, who are religious and do go to church." And here's the response from the defendants' answer:
With respect to the allegations in paragraph 21 of the Complaint, Defendant admit only that Defendants Foreman and Woodall did speak to representatives of the media concerning the Bible course. Defendants Foreman and Woodall do not recall the exact words they used in such interviews, and Defendants are, therefore, without knowledge and information sufficient to admit or deny the quotes attributed to them, and the allegations are, therefore, denied as a matter of law.
Could we have another Bill Buckingham situation on our hands, where they deny having said what the local media quotes them as saying? This could get very interesting. Another really odd statement appears at the end of this brief, where they list the reasons why they don't think the plaintiffs have a case; the final one is this:
Plaintiffs' equitable claims are barred, in whole or in part, because Plaintiffs' own inequitable conduct and/or unclean hands.
That left me scratching my head, as did this:
Defendants hereby make demand for a jury trial on all issues subject to jury trial
Which would be...what issues, exactly? There are no issues here subject to a jury trial, it's all equitable claims for injunctive relief. This really is all quite odd. They seem to think they're being sued for monetary damages.
Comments
Just a thought on the "unclean hands" etc. argument. I've been following the ins & outs of a long-running IP dispute (see www.groklaw.net for details). In that case, as it was explained on the site, under the rules of procedure, if an argument isn't brought up early in the process, it can't be brought up as a new argument later. So the early briefs had everything including the kitchen sink. Even though most of the more way-out arguments haven't actually been put forward, the lawyers have put down a marker that they could bring up these issues if they want to. Usual disclaimers: I'm not a lawyer, your mileage may vary, void where prohibited.
Posted by: KCProgramr | July 20, 2007 9:59 AM
KC - There is a point beyond which the court, in its discretion, won't let you bring up new defenses and claims, but that usually comes a long time after the initial complaint and answer are filed. Early on, the federal rules allow very liberal amendments to the pleadings.
There are also certain defenses that must be raised in the answer or waived. I don't think "unclean hands" is such a defense, since the cleanliness of the plaintiff's hands may not be apparent until the defendant has gotten discovery and done further investigation.
I think the defense attorneys might be flirting with sanctions. You have to have a good faith basis for all your claims and defenses. What possible conduct by the plaintiff could constitute unclean hands in an Establishment Clause case?
Posted by: AnneS | July 20, 2007 10:09 AM
They should have put in a counterclaim for a supply of Preparation H, because they are going to get spanked for the full length of the trial.
Posted by: Frito | July 20, 2007 10:34 AM
Defendants Foreman and Woodall do not recall the exact words they used in such interviews, and Defendants are, therefore, without knowledge and information sufficient to admit or deny the quotes attributed to them, and the allegations are, therefore, denied as a matter of law.
My knowledge of law is shamefully poor, but this doesn't make sense. Are they seriously suggesting that, since the defendants cannot remember exactly what they said, that their reported comments shouldn't have any bearing on the case?
Posted by: VorJack | July 20, 2007 11:10 AM
VorJack-
The phrase "and the allegations are, therefore, denied as a matter of law" is the phrase they used throughout the response. If for any reason they disputed anything in the complaint, they used that phrase to end the paragraph. They're not saying those allegations are denied, only that they're "denied as a matter of law." It's kind of like the phrase "I'm just saying" being used to cancel out whatever you just said:
"You're wife is a big fat beast."
"Are you saying my wife is fat?"
"I'm just saying..."
Posted by: Ed Brayton | July 20, 2007 11:17 AM
Are they seriously suggesting that, since the defendants cannot remember exactly what they said, that their reported comments shouldn't have any bearing on the case?
IANAL, either, but from my watching of Law and Order, I can see that this might be considered hearsay. Certainly, the media does not have a good reputation for getting quotes exactly right, and since the law so often comes down to fine distinctions, a small error in reporting could make a big difference in the legal action.
Now, if some of those reporters RECORDED the comments, the defendents might regret those statements.
Posted by: BobApril | July 20, 2007 11:27 AM
So basically, as was with Dover, the defense is relying on the media to get quotes wrong in order to win their case? Is this a common tactic among idiot law centers who know they have no chance at winning a case except on a technicallity or something?
Posted by: llDayo | July 20, 2007 11:42 AM
When the Defendant replies to a Complaint, they have an obligation to admit or deny the various claims made by the Plaintiff (claims not specifically admitted may be assumed to be denied, but Defendant usually replies with some specificity). The language, "therefore is denied as a matter of law," is merely letting the Plaintiffs know that they will have to prove this allegation. As suggested above, it may well be hearsay, although as an Admission Against Interest the statements may be admissible anyway.
All of the documents I've seen so far appear to be sloppy work (on both sides). Perhaps that has to do with local Rules or practices.
As for the "unclean hands" pleading, this is mysterious to me. As the suit concerns state action, and none of the Plaintiffs are state actors, their private actions are irrelevant to the case. I suppose one or more of the Plaintiffs might be liberals or freethinkers or homosexuals and it's not the appropriate hunting season.
Posted by: kehrsam | July 20, 2007 11:48 AM
Okay--as a litigator who practices in federal court, I don't find the last three passages Ed quotes to be all that mysterious. A little dumb, perhaps, but generally they just look like an attorney trying to cover his (and his clients') posterior to every extent possible.
(I should say that everything I know about the case I've learned on this blog, so please excuse any factual misconceptions that come from my misreading Ed.)
The "we don't remember what we told the reporters"/"denied as a matter of law" line means nothing more than they refuse to admit they said those things. I think Ed is exaggerating slightly comparing "denied as a matter of law" to "I'm just saying"; in this context, the phrase means "we're not affirmatively saying you're wrong--that would be 'denied as a matter of fact'--but we're also not going to admit what the Plaintiffs allege on this point." That means the Plaintiffs have to provide evidence if they wish to establish those statements (and, well, it sure looks like they can)--and yet it isn't a flat denial that would put the defense or their counsel in danger of court sanctions.
No, BobApril, this isn't hearsay, because (at least according to the Plaintiffs) those statements are admissions by party-opponents (see http://tinyurl.com/yrvuwy ) that are specifically excluded from the definition of hearsay. Though I have to agree with you that judges on Law & Order occasionally do throw out admissions like those as "hearsay," real-life law be damned, when Dick Wolf needs to throw a plot obstacle in Jack McCoy's path.
I can't imagine how the defense is going to wriggle out from under those statements; "I don't recall" is working nicely for Al Gonzalez, but this situation does seem more similar to Buckingham's. Still, it's not rank idiocy for them to force the plaintiffs to call in the reporters to testify that Foreman and Woodall did in fact say that stuff. Even if she thinks her client's defenses are all losers, any competent defense counsel has to take the position (at least initially, in the Answer) that the plaintiff needs to prove its case.
The "unclean hands" bit looks to me like one of the several defenses that counsel routinely throws into an Answer just in case it turns out to be relevant. If you leave any defense like that out, you're generally barred from making it at any point in the litigation--so all incentives are in favor of throwing in at least a passing reference to any defense that you can dream up in your wildest imagination. You can thereafter ignore the argument if it never becomes useful. It's a silly CYA tactic and I agree that it seems totally pointless on the merits of this case, but, well, that's federal litigation.
The jury trial demand makes perfect sense to me. Yes, the case is all about injunctive relief (and the defense's fixation on money damages is indeed weird), but that doesn't mean a trial could never be necessary. Don't forget that Kitzmiller was centrally about injunctive relief, too, and yet they held a trial. And properly so.
The point of a trial is to resolve disputed issues of material fact. As Ed notes, there appears to be at least a potential of a dispute over what is actually being taught in the classrooms in question--which certainly could be a triable fact issue. And if I were defense counsel jere, I think I'd want the trier of fact to be a jury of twelve ordinary citizens rather than one judge, too. Look what a disaster Judge Jones turned out to be....
Posted by: Rieux | July 20, 2007 12:07 PM
This blog alleges that I wrote:
I do not specifically remember misspelling "Gonzales." As a result, I deny having done so as a matter of law, and the burden remains on Plaintiff to provide proof of the incident.Posted by: Rieux | July 20, 2007 12:26 PM
Rieux wrote:
You're confusing "trial" with "jury trial." There was no jury trial in Kitzmiller and there won't be a jury trial here; there are no grounds for demanding one.
Oh, I agree that the defense should WANT a jury trial. But what legal basis is there for having one?
Posted by: Ed Brayton | July 20, 2007 12:31 PM
Are jury trials even available for Establishment Clause cases where the only claims are for equitable relief?
FWIW, these documents read like they were drafted by Stephen Dunne. They took a lot of boilerplate language and threw in some language and defenses they remember from law school, without regard to whether it applied to the present case. Lazy, careless, and sanctionable lawyering. I understand the "kitchen sink" strategy, but you still need a good faith basis for everything you put in your court papers.
Posted by: AnneS | July 20, 2007 12:45 PM
Touche.
Clearly (1) I don't try enough cases that are wholly in equity and (2) it's been too long since I had to know the Seventh Amendment equity/law distinction for Con Law I in law school.
Posted by: Rieux | July 20, 2007 12:53 PM
Kelly Shackleford is quite smart. He knows a $500 offer is an insult, and that's why he offered it.
It's a bad faith offer. Were I representing the plaintiffs, I'd be inclined to note that it's a bad faith offer, and therefore doesn't meet the obligations of a serious Rule 68 offer. A bad faith offer to settle shouldn't be used to reduce the damages of lawyers like Shackleford who, in this case, insult everyone who loves the Constitution, and insults the Constitution as well.
Posted by: Ed Darrell | July 20, 2007 3:20 PM
I can't see how this Rule 68 offer could be used to reduce the damages anyway. There was no offer to settle the legal issues in the case at all, and since there was no request for monetary damages that offer is irrelevant. I can't see a judge using that as a reason to limit attorney's fees.
Posted by: Ed Brayton | July 20, 2007 3:26 PM
I wonder if the LLI is filing uncreative & pro forma but otherwise worthless motions to bilk the school board for a few extra billable hours. Or are their services completely pro bono?
Posted by: EnzoAntonius | July 20, 2007 4:19 PM
I actually kept having flashbacks to the same Groklaw site that KCProgramr mentions while reading this blog entry. There's sort of that flavor that the filings in the late-period SCO case have had, where even someone with little or no legal training can plainly see things that don't appear to be right.
I do not specifically remember misspelling "Gonzales."
I was having trouble with this for awhile because Alberto Gonzales and Guillermo Gonzalez were briefly heavily appearing in the news sources I read at the same time, and the two cases seemed to have certain parallels in my mind, at least at the time. Ever since then I've had enormous trouble remembering which one has the s and which one has the z.
Posted by: Coin | July 20, 2007 4:45 PM
Rieux wrote:
I do not specifically remember misspelling "Gonzales." As a result, I deny having done so as a matter of law, and the burden remains on Plaintiff to provide proof of the incident.
That was sufficiently funny AND pointed that I have to wonder if you messed it up on purpose. Either way, brilliant.
Posted by: BobApril | July 20, 2007 5:02 PM
Is the Rule 68 offer just a ploy to get attorney's fees paid? Since the plaintiff is not asking for damages, even if they win the damage award will be less than the offer and attorney's fees will have to be paid.
http://www.law.cornell.edu/rules/frcp/Rule68.htm
Posted by: JScarry | July 21, 2007 12:48 PM