Sandefur's Response to Francisco

I agree that Sandefur's response is thorough and correct. I think he's wasting his time, though, because the DI flacks will never deal squarely with his arguments - the repeatability analysis involves, as Sandefur notes, a judgment call. And Francisco will always make that judgment call in such a way as to defend the party line, regardless of the objective evidence.

I prefer to take a simpler, more bottom-line analysis: a case involving a claim for damages, as Kitzmiller did, cannot be mooted by the defendant's change in behavior. (There is an irrelevant exception in class action cases.)

This is well settled precedent everywhere, including the Third Circuit: "Although Donovan's claim for declaratory and injunctive relief is moot, her damages and attorney's fees claims continue to present a live controversy. Boag v. MacDougall, 454 U.S. 364 (1982) (holding that the transfer to another prison did not moot a claim for damages arising from placement in solitary confinement); Jersey Cent. Power & Light Co. v. New Jersey, 772 F.2d 35, 41 (3d Cir.1985) ("[T]he availability of damages or other monetary relief almost always avoids mootness ···· Damages should be denied on the merits, not on the grounds of mootness."). We shall therefore review the district court's determination, bound up in its October 10, 2002 final order, that Donovan is not entitled to money damages and attorney's fees." Donovan ex rel. Donovan v. Punxsutawney Area School Bd., 336 F.3d 211, 218 (3rd Cir. 2003).

Donovan was, of course, binding on Judge Jones, as were the various cases that Donovan relied upon. So even if the board had rescinded its policy, it would have been required by binding precedential authority to review the alleged EC violation and would have awarded nominal damages to the plaintiffs. That would have made them prevailing parties under 42 USC 1988, meaning that they would still have been awarded attorneys' fees.

Not that I expect Francisco to admit or discuss this error; as several commentors at the PT have noted, DI sermons are about creating a desired public perception, regardless of whether or not it is actually true.

Colin wrote:

I agree that Sandefur's response is thorough and correct. I think he's wasting his time, though, because the DI flacks will never deal squarely with his arguments - the repeatability analysis involves, as Sandefur notes, a judgment call. And Francisco will always make that judgment call in such a way as to defend the party line, regardless of the objective evidence.

I don't think that means he's wasting his time. Of course the DI is never going to admit that their arguments are false. None of us debunk them thinking that Michael Francisco is going to suddenly say, "Gosh, you're right. I never thought of it that way." He's a flak. His job is to come up with the strongest rationale he can for their position, truth be damned. But that hardly means it's wasting our time to respond to them.

That's true; but if they can focus their reply on a more complex analysis, especially one that includes a judgment call, they can make it look like there is a valid controversy where there isn't. That's why I prefer the bluntest and plainest response: the blackletter law is that in a 1983 suit, even if the equitable remedies are mooted, a case including a claim for damages cannot be.

But I agree, it's always correct to respond to their inaccurate and deceptive claims, with both simple and compelx analyses. I wish that Tim still maintained his own blog, so we could hear more.

Colin, thanks for the 3rd circuit precedent. I was just talking with a friend of mine who teaches con law and I asked him what he would do if a student handed in a paper on the mootness doctrine and how it would apply in a particular hypothetical like the one Francisco posted. He said he would hand it back to the student and tell him he had two choices - he can grade it as it is, in which case he would fail, or he can give it back to the student to redo it and see if he can get it right. The first thing you do when analyzing a case like that is look to the way the appeals court in that particular district have applied Supreme Court precedent in the past, not to other courts. And of course, you look for the cases where the legal and factual circumstances are as close as possible to the one you're dealing with. Francisco did neither of those things, instead looking for precedents from other districts where the legal and factual circumstances were entirely different, but where it led to the result he wanted (a case was mooted). So thanks to you for finding a perfect precedent from within the 3rd district.