Francisco and Dover, Take 2

I'm sure some of you remember the brouhaha a few weeks ago over the accusation made by Seth Cooper, Joe Manzari and Michael Francisco that the new Dover school board, voted into office in November, intentionally delayed rescinding the policy because they were in collusion with the ACLU. Well now Francisco is back on the DI blog still trying to defend his views. So settle in, folks, this could get fun. Referring to my reply, he writes:

One critic stated that the AEI article, and my commentary, "appear to be utterly ignorant of the voluntary cessation doctrine" and "there was virtually no chance that the case would be mooted." Yet several Supreme Court cases dealing with mootness and a careful review of the law demonstrate that there was strong case for dismissal if the anti-ID Board had repealed the ID policy prior to the ruling. The argument is hypothetical (one might even say, "moot"!) because the Board ultimately rejected all arguments to repeal the policy, choosing instead to pin its hopes that Judge Jones would rule in favor of a policy they themselves rejected.

The last part is absolutely false. The new school board did not want the judge to rule in favor of the ID policy, and they certainly didn't "pin their hopes" on such a ruling. They knew, as did the rest of us, that Judge Jones was going to rule against the policy; the only question at that point was how broad the ruling would be. It's also false because the board did not "reject all arguments to repeal the policy" - in fact, the board did repeal the policy, at the first board meeting at which they were all seated and for which they controlled the agenda, the January 2006 meeting.

The December meeting was set aside for all of the things that would normally go on at a meeting at which a new board was set - the new members were sworn in, they elected their officers, they took reports from the administration on the state of the school system's finances, they rubber stamped some new hires and resignations that were set before they got there, and they took time for the public to comment on what they were most concerned that the new board do. At that time, someone recommended that the new board rescind the policy and that request was placed on the agenda for the January meeting. It would have been extremely unusual for the board to have voted on that suggestion at the December meeting, so much so that even some on the other side say that they would have to invoke special procedures under the PA sunshine act to do so.

Francisco then goes on to cite a whole bunch of cases that he thinks support the claim of mootness. Let's take a look at them one by one. First:

For instance, in Moongate Water Company v. Dona Ana Mutual Domestic Water Consumers , 420 F.3d 1082 (10th Cir. 2005), an appellate court vacated decision of district judge where intervening events rendered original controversy moot).

Okay, now let's look at the actual ruling in that case. Francisco is rather vague about what those "intervening events" were that rendered the case moot. There's a reason for that vagueness - the case is not at all similar to this case. That case involved two companies suing each other over the right to service a common territory under New Mexico law. But at the same time that the two sides were suing in court, they were also pursuing the dispute with the New Mexico Public Regulation Commission (PRC) and the PRC had ruled that Dona Ana had no legal right to serve the disputed area at all. PRC further ruled that Moongate Water had the right to service the area without any competition from Dona Ana. Because of the legal circumstances of the case, the court determined that "there is no real and immediate likelihood of Dona Ana's serving future customers in the Disputed Area" and therefore the case was moot. This is nothing at all like the situation in Dover.

Also, in Gator.com Corporation. v. L.L. Bean, Inc., 398 F.3d 1125, (9th Cir. 2005), the Ninth Circuit stated that the mootness was "'whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment,'" (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941)).

And here's the actual ruling in the case. This case involved a trademark dispute between LL Bean and Gator, an internet advertising company. In fact, they had more than one suit going against one another and one of those cases was settled out of court. The settlement agreement in that case required that Gator would agree never to take the action under dispute in this case as well. And the court decided that since, under that settlement, the defendent could no longer legally do what they were accused of doing, the case was moot. And this case also had to do with whether the court should issue a declaratory judgement, not whether they should rule after months of testimony and millions of dollars in legal fees had already been expended. The trial was still at the beginning, not a week before the ruling cam down. Again, this case has no application whatsoever in the Dover case.

It is well established that a defendant cannot take advantage of the mootness doctrine by voluntarily ceasing the challenged conduct in order to avoid an adverse judgment. Thus, "defendants who argue that a case has been mooted by their voluntary cessation of allegedly wrongful conduct must meet a very high burden because a mootness-based dismissal would 'leave the defendant ... free to return to his old ways.'" Fed. Trade Comm'n v. Affordable Media, LLC, 179 F.3d 1228, 1238 (9th Cir.1999) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953)).

Well thanks, Mr. Francisco, you just made my case for me. The burden of proof in arguing for mootness after voluntary cessation is on the one trying to moot the case, and that burden is "very high". In other words, the presumption is strongly against mooting a case merely because one side voluntarily stops doing what it is being sued for. That burden is even higher when the voluntary cessation takes place at the very end of a trial when it becomes clear that they're going to lose the case. If there is any reasonable cause to think that the board could have retaken the same action later on, there is no way such a burden can be met. And in this case, there absolutely was good reason to be concerned about that.

First of all, the new board was voted in by the smallest of margins, barely over 50% of the votes. It was so close that one seat required a runoff. And it is clear that there was strong support for the ID policy in the community, so they could easily have put the same board back into place in the next election and have the same policy passed. Indeed, we have history on our side on this one because this is exactly what happened in Kansas. The state BOE in Kansas passed a pro-ID policy in 1999, the voters threw them out in 2000, and then voted a different pro-ID board back into office in the next election, prompting yet another pro-ID policy to be passed. Clearly, there is a substantial chance of a different board in the future pursuing a similar policy in Dover. There's no way that the strong presumption against mootness could have been overcome in such circumstances.

He then cites Erwin Chemerinsky's book on Federal Jurisdiction, which is certainly an excellent resource, and he claims that legislative change is a "special case of voluntary cessation". But he includes this quote from Chemerinsky, which actually cuts against his argument:

Chemerinsky concludes:

"The key appears to be that cases will not be dismissed as moot if the Court believes that there is a likelihood of reenactment of a substantially similar law if the lawsuit is dismissed." (4th ed., p.139)

And that is true. But as stated above, the burden of proof is very strongly against mooting a case and it is all on the defendant seeking to moot the case. Indeed, Francisco himself later writes, "If there is a reasonable possibility that the government will reenact the law if the court moots the case, then the legislative change will not moot the case." Even the emphasis is his. Clearly, there is a reasonable possibility that a future board would reinstate a similar policy, especially given how close the election was. And again, the burden is all on the defense to overcome a strong presumption against mooting the case.

The controlling precedent on legislative change as voluntary cessation is City of Mesquite v Aladdin's Castle. Francisco cites the case, then makes a lame attempt to distinguish Dover from that precedent. In that case, a city ordinance was challenged in court and, while the case was pending appeal, the city council removed the offending language from the ordinance. The court ruled:

The fact that the phrase "connections with criminal elements" was eliminated from the ordinance while the case was pending in the Court of Appeals does not render the case moot. 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. Here, appellant's repeal of the objectionable language would not preclude it from reenacting the same provision if the District Court's judgment were vacated.

The standard here for the plaintiff is very low. The case isn't mooted unless the legislative body is somehow precluded from readopting a similar policy. Francisco attempts to distinguish this case from that one with this silly argument:

However, the Kitzmiller hypothetical is clearly distinct from City of Mesquite, for the newly elected anti-ID school board cannot reasonably have been expected to re-pass the ID policy had Judge Jones declared the case moot.

But that is irrelevant. It doesn't matter whether the new board would or would not have reinstated the policy; they clearly would not have. But school boards change, and the election of the new board was incredibly close. It was highly plausible that come next election, that board would be voted out and a pro-ID board voted back in. We've seen this happen with the very same issue in just the last 3 years.

Francisco is making quite a bizarre argument. He claims that appeals court cases from entirely different districts, like Moongate and Gator, where the legal and factual circumstances are dramatically different from this case, are applicable in Kitzmiller, but a Supreme Court case where all of the legal and factual circumstances are identical in every relevant way is inapplicable. If he gave this answer on a con law exam at Cornell, where he attends law school, he would likely flunk the course. It wouldn't convince one of his law profs, or anyone else with a decent knowledge of the law. But apparently, he thinks it's suitable for presentation for the DI - and truth be damned.

It's also worth noting how much Francisco's accusation has changed and softened, without any admission from him that he engaged in ridiculous hyperbole in the first place. His argument has collapsed down to saying that even if the chances of mooting the case were slim, the new board should have given it a shot. But his original accusation was far different. In his first post, he boldly accused the new board of colluding with the ACLU to screw over the Dover taxpayers.

He falsely claimed that the new board "actually voted to keep the policy during their first meeting", which was a flat out lie. He further claimed that they voted to keep that policy "because the Board members understood that removing the policy would have ended the legal controversy" - another flat out lie. In fact, the board's legal counsel had advised them that rescinding the policy would not moot the case (the same legal counsel who advised the old board that they would lose in court on the policy, which the old board ignored), and it was right there in the minutes of the meeting, which Francisco didn't bother to check. He also bluntly claims that Manzari and Cooper had shown that there was "there was collusion between the ACLU, AUSCS, and Dover school board members" and that this collusion had "allowed the school board to effectively purchase the Kitzmiller decision at a price of $1 million dollars." This is a direct accusation of financial malfeasance, which Francisco changed the next day, adding in a bunch of weasel words and changing all the "woulds" to "coulds" to avoid potential legal trouble. But he's never apoligized for his slanderous accusations, nor has he admitted to having made them.

And now he's left with a tiny little sliver of his original claims, collapsed down to the mere charge that they should have taken the very long shot and tried to have the case voided. But this ignores many crucial facts. First, the fact that everyone involved had advised the board that rescinding the policy would not moot the case. And I mean everyone - the plaintiffs' attorneys, their own defense attorneys, their own legal counsel, even the judge himself had publicly stated that the case would not be mooted by voluntarily rescinding the policy.

Furthermore, it ignores the fact that the plaintiffs' attorneys had planned for just such a contingency by putting a demand for nominal damages into the complaint. They did this on purpose, way back in December of 2004 when they filed the complaint, specifically to prevent any mooting of the case if the school board was voted out the next year. Requests for damages cannot be mooted by voluntary cessation because the damage is already done. The court could rule against the plaintiffs on that request, but they cannot simply moot it because of a change in policy.

And it also ignores the fact that rescinding the policy was not on the agenda for the December 5th meeting, an agenda the new board did not control. It would have been highly unusual for the board to add a substantive policy issue to the agenda of the first meeting of a new school board. It might even have required invoking an exemptions from the state's sunshine law. Francsisco wants us to believe that it was strange that they didn't vote to rescind the policy the moment they were sworn in; reality says that it would have been strange, to the point of possibly requiring a special legal procedure, in order to do that. The normal pattern for such meetings is to put policy issues on the agenda of the next meeting, take public comment then and hold a vote.

All of this nonsense is still just a ridiculous and desperate attempt to shift the blame from the old school board to the new one. It was the old board that ignored the legal advice of their own counsel and even of the main ID think tank and went ahead with a policy they were clearly advised would be shot down in court. It was the old board that refused to settle the case back in early 2005, when it was still possible, even when they knew they could end up costing the district millions of dollars. Put the blame where it belongs.