I've been pursuing most of the morning an answer to the question of how the elections last night may change the outcome of the Dover trial. Some have suggested that with the new school board and a presumed change in policy, the case is moot - the policy is reversed, there is no need for a ruling in the case. Others have suggested that it makes no difference at all. The answer appears to be somewhere in between these two. Here is my understanding of the legal situation at this point in all the various aspects.
A. Voluntary cessation doctrine. This legal doctrine says that "a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice." Does it apply in this case? Maybe. Technically, it's not the same school board now as the one which instituted the allegedly unconstitutional policy in question, it's a new school board. However, the lawsuit is filed against the Dover Area School District, not against the individual members of the school board (indeed, I think the individual members of the board have legal immunity arising from actions taken in the pursuit of their official duties). So this is a bit of a gray area.
B. The new board's position. Which is a little ambiguous. Yes, they ran on a platform of being against the ID policy, but they've also said that they were going to wait for the judge's ruling before making any changes in the policy. They are seated on December 5th and will not have an opportunity to actually change the policy until at least January, which will likely be after the ruling is issued. It does not look, at least, as if the new board is going to ask the court to end the proceedings because the issue has been mooted. And I think it's highly unlikely that the attorneys for the present defendants will ask for the case to be mooted. Can the judge himself decide that the circumstances have mooted the issue in the case and decide not to issue a ruling? Good question, and I'm pretty sure the answer to that is no. So there's a good chance that this won't even come up.
C. The structure of the complaint. Even if it does come up, it appears that the plaintiff's have solid legal grounds to demand that the case be completed and a ruling issued, regardless of the change in the board's makeup. The ACLU's lead attorney, Vic Walczak, told a newspaper yesterday that they prepared for this possibility and the complaint was designed to avoid being mooted:
Beyond that, lawyers for the parents also are seeking a declaratory judgment, and for nominal damages of $1 if they win. Both requests are designed to "prevent the case from being mooted" by the election, Walczak said.
D. Legal fees. If in fact the case is dismissed before a ruling is issued, the plaintiff's would have no legal fees awarded. Under Federal law currently, a plaintiff suing a government agency for an unconstitutional act, should they win, are entitled to having that government agency pay any legal fees incurred during the case. This could provide a major incentive for the school board to act quickly and try and get the case dismissed; if there is no final ruling, no legal fees will be awarded and the school board would likely save well over a million bucks.
E. Appeal. With the new school board in place, it is highly unlikely that they would choose to appeal the ruling if the plaintiffs win. That means that even if we win the case, it likely won't set much of a precedent. District court rulings are binding only upon the parties to the case. Other courts may well look to the district court ruling later, find the logic persuasive, and choose to cite it or use the same reasoning, but they are not bound to do so as they are when considering a higher court ruling within the same district or a Supreme Court ruling. So at the very least, it appears that our hope of setting a national precedent that would impede efforts to put ID into other school districts around the country has ended with yesterday's election. If the defense wins, we will certainly file an appeal but that offers a real opportunity for the new board to get the case dismissed up above, so it makes it riskier that the entire thing may be mooted.
So ironically, it may end up being true that having pro-ID candidates thrown out of office at this point is the best thing the ID movement could have hoped for. But only time will tell that. I suspect that, at the very least, we will get a ruling from Judge Jones on the merits of the case. After that, there is a great deal of uncertainty as to how it proceeds. If I were a betting man - and I am - I would bet that we will get a narrow ruling in our favor, the new school board will not authorize an appeal, and that will be the end of it. Which I find a little disappointing, frankly.
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"And I think it's highly unlikely that the attorneys for the present defendants will ask for the case to be mooted. "
I don't know about that. I'm willing to bet money that the DI is putting pressure on them to do exactly that to avoid an embarrassing defeat, although I don't know what leverage it has left. But can defendants ask for a case to be mooted? I'm no law expert but surely that's the plaintiff's prerogative.
I'd just like to point out that setting a precedent isn't everything. The fact that Dover has been stuck with a bill of $1m - $1.5m, and that the School Board was thrown out by the voters, will certainly have deterrent value.
But I agree; what will likely happen is that the verdict will be handed down, the new school board will consent not to do anything similar again and to pay plaintiff's fees, and the case will not be appealed.
The ruling may not have legal effect over a wide area, but I can't help but think that the attorney fees charged to the school district might deter others from going the ID route.
Won't the TMLC just pick up the tab?
Ginger Yellow wrote:
Yes, the defendants can make a motion here, I just don't think they will. The DI has no control over the TMLC here. If they did, the case would never have been brought.
Keith-
The TMLC has agreed to pick up the tab for the legal defense, but they will not pay the costs of the plaintiff's legal fees if they get awarded here.
"The TMLC has agreed to pick up the tab for the legal defense, but they will not pay the costs of the plaintiff's legal fees if they get awarded here"
Is that a legal requirement of some kind? If I was Dover, I would have a guarantee of the TMLC covering the *whole* cost before I proceeded.
KeithB wrote:
No, the TMLC could have offered to pay any legal fees awarded to the plaintiffs if they chose to, but they didn't. In fact, they made it very clear before the case started that they would not do so. The school board was clueless in this case, from start to finish. Their own attorney told them before they adopted the policy that they would likely lose the inevitable lawsuit and they went ahead anyway.
"Other courts may well look to the district court ruling later, find the logic persuasive, and choose to cite it or use the same reasoning, but they are not bound to do so as they are when considering a higher court ruling within the same district or a Supreme Court ruling."
Very true, but if you look at the impact of McLean v. Arkansas Board of Eduction, which was also a District Court decision, there's reason to be optimistic that the lack of precendential force resulting from the eventual Dover decision won't be the end of the story.
That's if we get a broader decision on the merits of ID as a putatitve scientific theory.
Ed--Your analysis is much too gloomy. See my comments at:
http://taxbiz.blogspot.com/2005/11/once-and-for-all-time.html
Stuart Levine
Interesting series of points. I would argue that, since the trial has been concluded and the arguments presented to the trial judge, even if the newly elected school board reverses the policy, the trial judge still has jurisdiction to render a decision. There is nothing to suggest that a subsequently elected school board might re-institute the current policy.
I would liken it, to some extent, to the situation in Roe v. Wade. The case was essentially rendered moot before the US SupCt took the appeal. (I don't recall whether the plaintiff had given birth or got the abortion, but that nit doesn't really matter in regards the case from Dover.) The issue is that, if a judge dismisses a case as being moot every time an elected board changes policy, one will never get guidance as to what a constitutional policy might look like.
BTW, I agree with your comment
Other courts may well look to the district court ruling later, find the logic persuasive, and choose to cite it or use the same reasoning, but they are not bound to do so as they are when considering a higher court ruling within the same district or a Supreme Court ruling.
It would be a mistake to discount the effect of prior court rulings on subsequent coordinate court rulings. The prior rulings are not stare decisis, but they are often cited as being pursuasive.
It will be interesting to see if the Dover school board or the TMLC will be held accountable for atty's fees. I doubt it--a case has to be determined to be really frivolous in order for atty's fees to be awarded, and I doubt that that would apply in this case, although it probably should.
Except that the board were defendants, not plaintiffs, so they can hardly be blamed for any frivolity. Stupidity, yes.
Ginger, don't know whether a frivolous defense to a meritorious lawsuit might trigger the possibility of atty's fees for the plaintiffs. Interesting question.
raj wrote:
Not in cases where a government agency is being sued for a constitutional violation. This doesn't fall under the "frivolous lawsuit" category, there is a Federal law which says that if you're suing a government agency for a constitutional violation and you win, it's almost automatic that you get awarded legal fees. That's why you hear the anti-ACLU crowd screaming constantly about how the ACLU is "destroying our nation's heritage with our own tax money", because they (or more accurately in most cases, the law firms who take the case on behalf of the ACLU) generally get awarded legal fees that have to be paid by the government agency whenever they win a case. There is even a bill in Congress right now to change that law to exempt first amendment challenges from that provision.
In this case, the plaintiff's case has been handled by a combination of one ACLU attorney (Vic Walczak) and several attorneys from the firm of Pepper Hamilton in Philadelphia. Pepper Hamilton took the case pro bono, as is almost always the case in ACLU lawsuits, knowing that they might get legal fees out of it if they win, but get nothing if they lose. The cost to this point has run well over $1 million, so that's a hell of a risk and only a large and very well established firm can afford to take it.
Ed, I do hope the plaintiffs' attorneys can get atty's fees, but it would be nice if the fees would be paid by the former school board members who voted for the policy. I suspect, though, that the school board members are insured and an insurance company would be liable for them.
That kind of insurance is something that I discovered a couple of decades ago when I served on our town insurance committee.
The net result, of course, is that elected officials have no financial penalty for their defalcations.
raj writes:
Oh, that's something I'm not sure I've ever reported here about the situation. The school board did have liability insurance for this sort of thing, but when it came out at trial that the board had ignored the advice of their own legal counsel, that voided the policy. The insurance company announced that it would not be covering any of this as a result. So the school board is on its own here, and unfortunately the members of the board cannot be held financially responsible for actions taken by the board. So it all falls in the school district's lap one way or another.
Frankly, Pepper Hamilton can probably afford the financial hit a lot more than the Dover school district can. They set aside a certain amount of pro bono work every year, like any major firm does, and plan to write it off. It's already figured into their budget, I'm sure.
[I posted the below on PT, just transferring the same over here, as I only noticed Ed's request for comments here just now.]
Since the school district could return to the offending activity at any time, the case is not moot merely on the basis of voluntary cessation. Only if the offending conduct could not "reasonably be expected to recur" would mootness be found. The school district is an entity unto itself as opposed to a temporal collection of these or those individuals, and it is well within the range of probability that a newly elected board elected next year or the year after could seek to commit the same offending activity.
It doesn't fit under the 'capable or repetition yet evading review' doctrine because it isn't inherently limited in duration to escape review, like abortion, for instance.
There is an interesting question of whether the school district could appeal should they lose. My guess would be no.
As a general rule, we can look to corporations law, where a shareholder who ceases to be a shareholder loses standing to participate in a derivative suit. I can't find any cases directly on point to this scenario (old school board (or even old corporate board) sought to retain standing to appeal after its ouster), although I'll bet there must be some.
If we presume that the plaintiffs win at trial, the newly elected board members will have no motivation to appeal on behalf of the school board, as appeals are expensive; and they explicitly disagree with the old school board's position that led to this litigation - indeed, it's the likely reason they were elected.
But there are other considerations at play here - Thomas More will certainly want to appeal; the old board members will want to appeal; the community at large (on both sides) may want it appealed for separate reasons; the losers want to overturn a win, and the winners want to see the holding crystallized into precedent binding on the entire Circuit. But those reasons may venture beyond the purpose of the judiciary, which is merely to decide "cases and controversies." And a trial court ruling would effectively negate that.
I'm probably missing something here, but it's an unusual situation. In corporate law disputes, where litigation combined with board election changes is most common, it would seem odd that the originally-sued and now-ousted board would wish to retain any standing interest to appeal, which is maybe why lexis is drawing a blank for me.
My instinct, however, is that it will be difficult for Thomas More to appeal, for lack of an interested client. But I'd not put it past them to try. I'd expect it even.
~ scott pilutik
This would really add to the wackiness:
Could the ousted members, championed by the TMLC, pull a switch to plaintifs and appeal? Since the tables have almost literally been turned with the old plaintif-parents now the school board and the old school board now parents trying to force the teaching of ID.
Am I making sense?
Ed, I'm um...floored.
The school board did have liability insurance for this sort of thing, but when it came out at trial that the board had ignored the advice of their own legal counsel, that voided the policy. The insurance company announced that it would not be covering any of this as a result.
The Dover school board was not covered by an insurance policy that would have covered them for their own pronouncements? And because they ignored their own council? That is literally astounding. I've been involved in town government here in MA, and the principal point is that you pay attention to town counsel. That's why you hire town counsel, so that he can provide you with legal advice. Seriously.
Regarding
...but when it came out at trial that the board had ignored the advice of their own legal counsel, that voided the policy....
I'm not sure that that is totally accurate, but it is close. The case should have been turned over to the insurance company (that is the usual case in connection with liability policies) so that the insurance company could manage the defense (they would presumably be liable, after all). That the defense was apparently not turned over to the insurance policies suggests that the insurance companies were largely cut out of the case. If the insurance company was not permitted to participate in the case, it may very well be that they would have no liability in regards anything.
It's not that astounding when you consider that these guys are fundamentalists. After all, who cares about legal advice when you're taking a stand for Jesus? It's even less astounding given that the board members are not personally liable. How I wish America had UK style surcharges.
Now that I think about this more, there are TWO defendants in the case: DOVER AREA SCHOOL DISTRICT; and DOVER AREA SCHOOL DISTRICT BOARD OF DIRECTORS.
If I were the TMLC, I would argue that the appeal should be permitted because the caption explicitly described the BOARD OF DIRECTORS that existed at the time of the complaint and that Board remains an identifiable group, even if none in the group continue to hold official titles. Otherwise, why name two defendants?
The DASD can be represented by the incoming board. If the incoming board *also* represents the DASDBOD defendant, the plaintiff's naming of two defendants in the caption was redundant.
The DASD defendant is represented by the current Board, and so that defendant will ilkely not seek to appeal. But the second defendant, the DASDBOD obviously referred to the *group of individuals* who held such a position on the day the complaint was filed. And obviously, the incoming board (as a group of individuals) does not slide into the DASDBOD defendant slot.
And the ex Board members maintain an interest in the case even if they lose at trial, since they were ousted from their positions on the basis of the publicity deriving from this case. If they are proven right at the appeals level, it vindicates them as a group of individuals who may seek to run again.
Also, each ex Board member holds a dignatory interest. This complaint accused them, often by name, of attempting to violate the constitutional rights of Dover school children. They deserve to appeal any declaratory judgment that agrees with the complaint as to that aspect in order to protect their reputation, since you figure that at least one ex Board member wishes to return to service in this same capacity one day.
However, since they are *ex* Board members, it'll have to be on their own dime, since the present DASD cannot be expected to pay for any appeal. More likely, the TMLC would pay, though.
tikk, I haven't seen the caption of the complaint in the district court. Your point is an interesting one, but I wonder whether generally suing the "DOVER AREA SCHOOL DISTRICT BOARD OF DIRECTORS" would be sufficient to hold the individual members of the board as it was then constituted liable.
It is not uncommon for government officials to have liability insurance to cover their actions while in office. This is something like insurance for boards of directors of private corporations. BUT, for the insurance companies to assume liability, they usually insist on being notified and overtaking the defense--because the insurance companies are the ones who would have to make the payout.
Raj: The caption can be seen in any one of the dozens of legal pleadings already filed, not just the complaint. The caption is the same in each.
The question has nothing to do with holding the indivduals comprising the DASDBOD personally liable - they're not, or they'd be named as individuals. But that doesn't mean that as a group, they could not be found to have violated the students constitutional rights. Indeed, that's precisely what the complaint avers.
Plaintiffs only seek injunctive and declaratory relief (+ $1 nominal damages, iirc), so it's not a matter of 'liability' in the sense you're probably thinking. The only real cost here is legal fees, which are signficant on both sides by this point. And a court could find that this group as they were constituted at the time, violated plaintiff's constitutional rights, but only in their capacity as school board members, not as individuals. In other words, they can't personally be on the hook for legal fees, but they, as a group, can be found to have violated the law. These concepts are not inconsistent.
The fact that the old board ignored the insurance company and they subsequently refused to cover is not surprising, due to the fact that this suit is a fight over constitutional principles as opposed to some matter that could be settled. But there's really nothing that could be 'settled' here - the suit inherently seeks a winner and loser. The insurance company, acting in its best interests (to minimize costs; here, legal fees), would have caved on the issue entirely. In other words, the old board probably never seriously considered that insurance was available for this lark to begin with. Although they were deluded in enough other ways that who knows.
Ed, here's my lawyer's comment: no one should underestimate the value of a federal district court decision that holds that it would violate the establishment clause of the first amendment to encourage the teaching of ID in public school science classes. same with regard to a holding that ID is just creationism under a new name (Barbara Forrest's testimony). it would be huge, as it would cast ID as falling squarely within the prohibitions set by the Supreme's Court's decision in Edwards, which held that creationism is religion, and teaching it in public schools is an impermissible advancement of religion.
there are not many court decisions out there that deal with creationism as it is, and all are favorable to science. a victory here, even if it never goes to appeal, would continue this trend and make the next challenge that much harder for ID's proponents. the Discovery Institute knows this, which why they are terrified that this case will undermine all the money and effort they've invested in their Wedge misinformation campaign the last several years.
Interesting comments from Judge Jones on the ID trial as reported in the York Daily Record.
Most interesting:
He considers only what has been offered for the record and won't take into consideration news accounts or that a new Dover Area school board has been elected since the trial.
Read the rest.