I'm from Missouri

This site is named for the famous statement of US Congressman Willard Duncan Vandiver from Missouri : "I`m from Missouri -- you'll have to show me." This site is dedicated to skepticism of official dogma in all subjects. Just-so stories are not accepted here. This is a site where controversial subjects such as evolution theory and the Holocaust may be freely debated.

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Location: Los Angeles, California, United States

My biggest motivation for creating my own blogs was to avoid the arbitrary censorship practiced by other blogs and various other Internet forums. Censorship will be avoided in my blogs -- there will be no deletion of comments, no closing of comment threads, no holding up of comments for moderation, and no commenter registration hassles. Comments containing nothing but insults and/or ad hominem attacks are discouraged. My non-response to a particular comment should not be interpreted as agreement, approval, or inability to answer.

Saturday, May 13, 2006

Dover C.A.R.E.S. -- a wolf in sheep's clothing

Dover C.A.R.E.S. ( Citizens Actively Reviewing Educational/Economic Strategies ) was apparently established for the purpose of opposing the Dover school board's ID policy. Dover C.A.R.E.S. ran a slate of anti-ID school board candidates who won most of the seats on the board.

After strenuously denying during the school-board election campaign that they were in cahoots with the ACLU, once in office the newly elected school board members did exactly what the ACLU wanted them to do -- reject a former board member's proposal to try to end the Dover lawsuit and avoid attorney fees by repealing the ID policy prior to the decision (see my post titled, "Two-timing new members of the Dover school board"). Everyone knew that early December was the last chance to try the proposal, so the new board's apparently unanimous decision to schedule the January meeting for discussion of the proposal was for all practical purposes a decision to kill the proposal. The proposal was not new -- it had been presented at the mid-November board meeting, the last meeting of the old school board. Some of the new members said at that time that they did not want the judge to dismiss the suit!

Though the website of Dover C.A.R.E.S. mentions nothing about the evolution controversy, two of only four non-governmental URL links on the website (most of the links connect to government bodies or politicians) connect to virulently pro-Darwinist organizations, the National Center for Science Education and Pennsylvania Citizens for Science (both of which are exclusively dedicated to promoting Darwinism and suppressing criticism of Darwinism, despite the seeming generality and innocuousness of their titles).

Also, ironically, Dover C.A.R.E.S. holds its regular meetings at a church. If a pro-ID group held its regular meetings at a church, all hell would break loose. Also, purchasing the Of Pandas and People ID books with funds raised at a church seriously hurt the Dover defendants in the lawsuit (and not just because they lied about it). I think that there is an obvious double standard here.

The new board members who represent Dover C.A.R.E.S. were in a precarious position to start with, since they all won their seats by relatively small margins. Their popularity will decline further as more Dover residents realize that the new school board muffed a lucky opportunity to try to avoid the attorney fees by repealing the ID policy in early December. Ironically, it is believed that a lot of the votes for the new members came from people who were primarily concerned about the attorney fees. There is a good chance that the Dover school board -- a future school board if not the present one -- will seek ways to circumvent the Kitzmiller v. Dover decision, as by adopting the Cobb County evolution-disclaimer textbook stickers if the Selman v. Cobb County decision is reversed, which is a strong possibility.

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43 Comments:

Blogger Colin said...

“Their popularity will decline further as more Dover residents realize that the new school board muffed a lucky opportunity to try to avoid the attorney fees by repealing the ID policy in early December.”

Why do you keep telling this lie, Larry? Whatever audience you have has long since realized that you’re making this up. You want people to believe that the plaintiffs’ case would have been mooted, precluding an award of fees.

But the Kitzmillers had a cause of action for nominal damages, which could not have been mooted: “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.”Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 600 (2001).

Their claim for nominal damages would have gone to judgment. They would have won, as they did, and “a plaintiff who wins nominal damages is a prevailing party under 1988.” Farrar v. Hobby, 506 U.S. 103 (1992).

The Farrar exception, which applies where a plaintiff requests significant compensatory damages and receives only nominal damages, would not apply: the plaintiffs here asked only for nominal damages, and would have received them no matter what the board did. See Buckhannon. The plaintiffs would therefore have been a prevailing party, see Farrar, and would have collected appropriate fees.

This is very, very simple stuff, Larry. You are flat-out lying when you pretend that the board could have avoided fees.

Sunday, May 14, 2006 12:29:00 AM  
Blogger Larry Fafarman said...

Colin said...

>>>>>Why do you keep telling this lie, Larry? <<<<<

I keep telling it because it is not a lie -- it is the truth.

>>>>>>“for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.”Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 600 (2001). <<<<<

You are sounding like a broken record (I am afraid that folks who are too young to remember vinyl music records might miss that one). You have repeated that tired quote so many times that you ought to frame it and put it on your wall.

Some newly elected board members said in mid-November that they did not want the judge to dismiss the lawsuit. That speaks for itself.

As I said, why don't you go to Dover and campaign for the re-election of the Dover school board members by making the same arguments that you are making here, and see how far you get.

Sunday, May 14, 2006 3:07:00 AM  
Anonymous Anonymous said...

After strenuously denying during the school-board election campaign that they were in cahoots with the ACLU, once in office the newly elected school board members did exactly what the ACLU wanted them to do -- reject a former board member's proposal to try to end the Dover lawsuit and avoid attorney fees by repealing the ID policy prior to the decision

Liar. The ACLU didn't give a damn whether or not the suit was dropped, because the Court would award attorney's fees anyways.

And in all your ranting you ignore the fact that the ACLU *did* allow the board to avoid Court-awarded attorney's fees, for settling out-of-court for approximately 50% of the fees they submitted to the Court.

Sunday, May 14, 2006 9:54:00 AM  
Blogger Larry Fafarman said...

Anonymous said --

>>>>>>After strenuously denying during the school-board election campaign that they were in cahoots with the ACLU, once in office the newly elected school board members did exactly what the ACLU wanted them to do -- reject a former board member's proposal to try to end the Dover lawsuit and avoid attorney fees by repealing the ID policy prior to the decision

Liar. The ACLU didn't give a damn whether or not the suit was dropped, because the Court would award attorney's fees anyways.<<<<<<

Wrong on both counts.

Even if the ACLU had received all the attorney fees that it requested, it still would have been unhappy had the lawsuit been dropped because the ACLU also wanted a decision in its favor.

As for the court awarding attorney fees anyways, attorney fees were not awarded in Buckhannon, where the suit was dismissed because of a state legislature's "voluntary cessation" of the challenged statute.

I think that what Buckhannon essentially did was bury the "catalyst theory." Among other things, Buckhannon noted that the catalyst theory is a disincentive for voluntary cessation, because under the catalyst theory voluntary cessation is automatically interpreted as an admission of guilt that entitles the plaintiff to attorney fees.

Also, must you preface all of your objections -- or most of your objections -- with "liar" ?

>>>>>>And in all your ranting you ignore the fact that the ACLU *did* allow the board to avoid Court-awarded attorney's fees, for settling out-of-court for approximately 50% of the fees they submitted to the Court.<<<<<<

Whoopee. First the ACLU et al. drove up the attorney fees by assigning a veritable horde of attorneys of record -- 9-10, with at least five of them in the courtroom on every day of a six-week trial -- and lengthening the trial by having a large number of expert witnesses, six. Then the ACLU et al. claim credit for being "generous" by giving the Dover school district a discount on attorney fees. What a joke.

I am also curious as to the hourly rates requested by the two partners from Pepper Hamilton, a huge law firm with about 400 attorneys.

Sunday, May 14, 2006 1:50:00 PM  
Anonymous Anonymous said...

Also, must you preface all of your objections -- or most of your objections -- with "liar" ?

The reason is obvious to your readers...

Sunday, May 14, 2006 3:03:00 PM  
Blogger Colin said...

As for the court awarding attorney fees anyways, attorney fees were not awarded in Buckhannon, where the suit was dismissed because of a state legislature's "voluntary cessation" of the challenged statute.

My god, Larry, how often do you intend to keep repeating this lie? Buckhannon was a case without any cause of action for damages. The Court explained that their opinion would not apply in such a case, because “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 600 (2001). What is so confusing about that holding? Why are you incapable of parsing the effect that a cause of action for damages has on mootness?

I think that what Buckhannon essentially did was bury the "catalyst theory." Among other things, Buckhannon noted that the catalyst theory is a disincentive for voluntary cessation, because under the catalyst theory voluntary cessation is automatically interpreted as an admission of guilt that entitles the plaintiff to attorney fees.

Catalyst theory had nothing to do with Kitzmiller. Catalyst theory only applies (or applied) after a case was mooted, and Kitzmiller could not have been mooted, because “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 600 (2001).

Also, must you preface all of your objections -- or most of your objections -- with "liar" ?

As long as you keep telling lies, I’ll keep pointing them out. It irritates me that you invent legal holdings and hope that your readers won’t bother reading the cases for themselves. Well, readers (if any are left), I have read those cases, and Larry is flat-out lying about their holdings. A cause of action for damages cannot be mooted by a defendant’s change in conduct.

Whoopee. First the ACLU et al. drove up the attorney fees by assigning a veritable horde of attorneys of record -- 9-10, with at least five of them in the courtroom on every day of a six-week trial -- and lengthening the trial by having a large number of expert witnesses, six. Then the ACLU et al. claim credit for being "generous" by giving the Dover school district a discount on attorney fees. What a joke.

Why do you think that nine or ten attorneys is an unreasonable number?

I am also curious as to the hourly rates requested by the two partners from Pepper Hamilton, a huge law firm with about 400 attorneys.

Not a substantive comment, but just FYI 400 attorneys is fairly large but hardy “huge.” There are more than a few firms with a thousand attorneys or more; I think Jones Day is pushing three thousand now.

Sunday, May 14, 2006 3:14:00 PM  
Blogger Larry Fafarman said...

Colin said ( 5/14/2006 03:14:03 PM ) --

>>>>> The Court explained that their opinion would not apply in such a case, because “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 600 (2001).<<<<<

Sigh. How many times do I have to keep repeating: the Supreme Court never said that paying or offering to pay the damages would not moot a claim for damages. Paying the nominal damages might not moot a nominal damages claim, but that is because nominal damages accompany some other kind of relief. If the claim for the other kind of relief is moot, then the claim for nominal damages is also moot. Despite your assertion that claims for nominal damages are commonly made to help obtain attorney fee awards by preventing cases from being mooted, you have not provided a single example of a case where a court granted just nominal damages and nothing more, let alone such a case where the court ruled that the nominal damages justified an award of attorney fees.

>>>>>Catalyst theory had nothing to do with Kitzmiller. Catalyst theory only applies (or applied) after a case was mooted, and Kitzmiller could not have been mooted, , because “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.”<<<<<

See above.

>>>>>Also, must you preface all of your objections -- or most of your objections -- with "liar" ?

As long as you keep telling lies, I’ll keep pointing them out.<<<<<

I was responding to Anonymous. Are you Anonymous ?

>>>>>the ACLU et al. drove up the attorney fees by assigning a veritable horde of attorneys of record -- 9-10, with at least five of them in the courtroom on every day of a six-week trial

Why do you think that nine or ten attorneys is an unreasonable number? <<<<<<

Well, here are some comparisons --

In the Dover trial, there were just four defense attorneys of record -- three from the Thomas More Law Center and one local attorney. I heard that only one of these attorneys was a full-timer. The local attorney might have been nothing more than a required "sponsor" for the TMLC attorneys because they were from out-of-state (I have no idea why a federal court would care whether or not an attorney is licensed in the state). In contrast, the plaintiffs had at least five attorneys in the courtroom on each day of the six-week trial.

The complaint in Selman v. Cobb County lists only 3 attorneys of record (one local attorney in the Selman complaint did not have a Georgia bar number and I have no idea why). More plaintiffs' attorneys may have been added later in the Selman case -- I don't know. The Selman complaint is on --
http://www2.ncseweb.org/selman/complaint.pdf

Six attorneys of record were listed in the Hurst v. Newman complaint, the El Tejon, Calif. case that did not go to trial. This number is already getting out of hand.

OJ Simpson, a celebrity defendant in a double first-degree murder trial, had just four attorneys of record in his criminal trial.

Furthermore, two of the Dover plaintiffs' attorneys were partners in a large law firm, which means that they were probably highly experienced, meaning that they could work more efficiently than less-experienced attorneys.

As an experienced pro se litigant, I have a good idea of what it takes to get the job done. I managed to do everything myself even without clerical assistance -- I had to do the legal research (which was hard at first because I did not know how), typing, copying, mailing, court-filing, etc.. Especially difficult were the appeals to the Supreme Court, as my briefs had to be bound little booklets in an exact special format that was incompatible with my word processor (the Supreme Court wanted forty of the booklets and I have no idea why). I had to do some of this stuff while I was working full time.

So when I say that having 9-10 attorneys of record was excessive, I know what I am talking about. The Dover plaintiffs had so many attorneys that it was almost a case of too many cooks spoil the broth.

>>>>>I am also curious as to the hourly rates requested by the two partners from Pepper Hamilton, a huge law firm with about 400 attorneys.

Not a substantive comment, but just FYI 400 attorneys is fairly large but hardy “huge.” There are more than a few firms with a thousand attorneys or more; I think Jones Day is pushing three thousand now. <<<<<<

A list of the 250 largest law firms in America has only a dozen firms with over a thousand attorneys -- see http://www.ilrg.com/nlj250/ . BTW, Jones Day has under 2000 and is 2nd on the list. The largest, Baker & McKenzie, has over 3000. Pepper Hamilton with 389 attorneys is No. 97 on the list but is still quite large by any reasonable standard. The point I was trying to make is that the two Pepper Hamilton partners in the Dover trial, by virtue of their prominent positions in a large law firm, might expect an hourly rate that is well above average in terms of their level of experience, even when they initially agree to work pro bono as occurred in the Dover lawsuit (they themselves were not paid and the profits cleared after expenses went into the coffers of the ACLU and the AUSCS).

Monday, May 15, 2006 3:11:00 AM  
Blogger Colin said...

Sigh. How many times do I have to keep repeating: the Supreme Court never said that paying or offering to pay the damages would not moot a claim for damages.

They never said it because there is no need to say it: it is abundantly clear that offering to pay damages does not obviate a cause of action for damages. Can you explain why this is true? Can you cite any authority for that proposition? The problem, Larry, is that repeating a lie does not make it true. You didn’t discover that rule through research, you can’t find it in any case or statute or rule of law. You just made it up because the law doesn’t support your argument. I keep asking for you to provide some support for this radical invention, but you keep chickening out. Lies, for the tenth time, are not law.

A mere offer does nothing. How could it? The plaintiffs would not accept. If they did accept, then they would still be entitled to fees. See Truesdell v. Philadelphia Housing Authority, 290 F.3d 159 (3rd Cir. 2002) (“In Farrar v. Hobby, the Court concluded that a plaintiff ‘must obtain [either] an enforceable judgment against the defendant from whom fees are sought, or comparable relief through a consent decree or settlement’ . . . . We do not agree with the District Court's conclusion that the parties' settlement was an inappropriate basis for an award of attorney's fees. As previously noted, under Buckhannon, attorney's fees may be awarded based on a settlement when it is enforced through a consent decree.”) That case, of course, was binding on Judge Jones.

Paying the nominal damages might not moot a nominal damages claim, but that is because nominal damages accompany some other kind of relief. If the claim for the other kind of relief is moot, then the claim for nominal damages is also moot.

No, Larry, that is wrong and stupid:

Brown v. Philadelphia Municipal Court, 47 Fed.Appx. 129 (3rd Cir. 2002) (“However, even though Brown's request for declaratory and injunctive relief may be moot, we must still consider the viability of his request for compensatory damages, interest, costs and attorney's fees. The availability of damages or other monetary relief normally precludes a finding of mootness. Jersey Cent. Power & Light Co. v. State of New Jersey, 772 F.2d 35, 41 (3d Cir.1985) (holding that “[d]amages should be denied on the merits, not on the grounds of mootness”). Since the district court did not rule on Brown's possible claim for damages, even if nominal, we vacate and remand this case for a decision on the merits.”)

That is a case from Judge Jones’ own circuit. It is not binding because it is unpublished, but it shows how the circuit (just like all other federal courts, and everyone who understands anything about law) looks at the issue. All of Brown’s other claims were moot, but his potential claim for damages wasn’t. Even though that claim might have been for nominal, rather than compensatory damages, it was sent back because such a claim cannot be mooted.

I’m sure that you’ll say that this was just a political case, and the Third Circuit, like the Tenth Circuit and the Supreme Court, just didn’t understand the issues as clearly as the great Larry Fafarman.

See also Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248 (10th Cir. 2004) (“It may seem odd that a complaint for nominal damages could satisfy Article III's case or controversy requirements, when a functionally identical claim for declaratory relief will not. But this Court has squarely so held. Thus, although the conduct at issue is long past and will not be repeated, the Ordinance under challenge has been amended to correct its alleged constitutional flaw, and Plaintiff concedes that it suffered no compensable injury, under our precedents this panel is required to determine on the merits whether Defendant's past conduct and no-longer-operative Ordinance comported with the First Amendment.”) (citations omitted) (A concurring opinion in this case argues that the Supreme Court’s holding that nominal damages cannot be mooted should be overruled, but acknowledges that the rule is controlling.)

Despite your assertion that claims for nominal damages are commonly made to help obtain attorney fee awards by preventing cases from being mooted, you have not provided a single example of a case where a court granted just nominal damages and nothing more, let alone such a case where the court ruled that the nominal damages justified an award of attorney fees.

Cases often proceed on purely nominal damage grounds. See Buss v. Quigg, 91 Fed.Appx. 759 (3rd Cir. 2004) (“The jury did not award any damages to plaintiffs in spite of its finding because of an error in the District Court's instructions. The District Court sought to rectify this error by granting plaintiffs nominal damages of one dollar each. Pursuant to 42 U.S.C. § 1988, the District Court also awarded Buss, as the prevailing party, [attorney's fees and costs]. Quigg now appeals arguing that Farrar v. Hobby prevents civil rights plaintiffs, who obtain only nominal damages on one of multiple claims, from receiving attorneys fees. Alternatively, Quigg argues that the District Court abused its discretion in refusing to reduce the fee award for limited success. . . . We conclude . . . that Buss could recover attorneys fees in spite of the nominal damages she received.”) See also Brown, supra.

The district court opinion from Buss, affirmed by the Third Circuit, is particularly instructive: “The question before me is whether plaintiffs who have prevailed on a constitutional claim under § 1983 but have obtained only nominal damages may recover attorney's fees. . . .In light of these cases, the legislative history of § 1988, and the language of the Farrar opinion itself, I decline Defendant's implicit invitation to read Farrar as a per se bar to attorneys fees in civil rights cases where plaintiffs have secured only nominal damages or no damages at all. Instead, I understand Farrar to require an inquiry into whether plaintiff's victory may be characterized as so ‘technical’ or ‘de minimis’ that it falls within that category of cases in which ‘the only reasonable fee is ··· no fee at all.’ . . . I will grant Plaintiffs' petition for attorney's fees.” Buss v. Quigg, F.Supp.2d, 2002 WL 31262060 (E.D.Pa. 2002).

That case is particularly instructive because this issue almost never goes up on appeal–it’s a waste of time issue. That judge did a thorough analysis.

Here is a summary of other case law: Lynch v. Leis, 382 F.3d 642 (6th Cir. 2004) (“We note briefly that Powers had asserted below a claim for nominal damages, which is normally sufficient to establish standing, defeat mootness, and grant prevailing party status for the purpose of attorney fees under 42 U.S.C. § 1988. See Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 604, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) ("[E]ven an award of nominal damages suffices under [the prevailing party] test."); Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) ("[T]he deprivation of such [absolute] rights [is] actionable for nominal damages"); Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248, 1268 (10th Cir.2004) ("The Sixth and Ninth Circuits, like ours, squarely hold that a claim for nominal damages is sufficient to render a case justiciable.") (McConnell, J., concurring); Murray v. Bd. of Trs., 659 F.2d 77, 79 (6th Cir.1981) (district court erred in dismissing entire complaint as moot, rather than simply dismissing claim for injunctive relief, where plaintiff sought nominal damages and fees).”)

And I’ve already pointed out O'Connor v. Washburn University 416 F.3d 1216 (10th Cir. 2005) (“In their complaint, appellants request declaratory and injunctive relief, nominal damages, and reasonable costs and attorneys fees pursuant to 42 U.S.C. § 1988. Because the statue has now been removed from campus, the claim for injunctive relief is moot. Furthermore, because a declaratory judgment would no longer have any effect on defendants' behavior, the claim for declaratory relief is also moot [leaving only claim for nominal damages and fees].”) (citations omitted)

I’m sure that you’ll whine about how long this post is - you vacillate between demanding cases and refusing to read them. I’m sure you’ll also try to argue that all of those courts got the law wrong, even though you can’t find a single court that agrees with you. Face reality - you are just wrong. If you want to argue that the law should be different, fine - see the concurrence in Utah Animal Rights Coalition for what that argument would look like. But the law is what it is, and what it is is that a cause of action for damages, even nominal, cannot be mooted and will support an award of fees. Your vacuous assertions of made-up rules are just embarrassing.


>>>>>Also, must you preface all of your objections -- or most of your objections -- with "liar" ?

As long as you keep telling lies, I’ll keep pointing them out.<<<<<

I was responding to Anonymous. Are you Anonymous ?


I am not. I thought you were responding to me. I will point out, emphatically, that you are a liar. You have a despicable disregard for truth and intellectual integrity.

As an experienced pro se litigant, I have a good idea of what it takes to get the job done. I managed to do everything myself even without clerical assistance -- I had to do the legal research (which was hard at first because I did not know how)... So when I say that having 9-10 attorneys of record was excessive, I know what I am talking about.

You still don’t know how - you just make things up as you go along. I’m not experienced enough to know first-hand how many attorneys are usual on a case like this, but 9-10 doesn’t seem excessive. You certainly don’t know anything first-hand – your performance here shows how appallingly ignorant you are, and how little effort you put into even the easiest legal questions. Legal argument takes effort, intelligence, and intellectual rigor, none of which you display. You are a sloppy and dishonest thinker, and comparing your shoddy work to professional attorneys’ is ridiculous.

The Dover plaintiffs had so many attorneys that it was almost a case of too many cooks spoil the broth.

You don’t know what that saying means, do you? The Dover plaintiffs won. Their cooked a tasty meal, as it were.

BTW, Jones Day has under 2000 and is 2nd on the list. The largest, Baker & McKenzie, has over 3000.

Jones Day claims over 2000; they’re probably counting overseas offices. I hadn’t realized that B&M was larger.

I don’t really care about your arguments as to the size of the award. I don’t know much about those calculations, either factually or legally: my interest is in the mootness and damages arguments, because I know more about and am more interested in that aspect of civil procedure. But if your arguments on that front are as appallingly stupid and ignorant as the rest of your blather, I think the ACLU and board are forever safe from your impotent and ignorant rage.

Monday, May 15, 2006 10:01:00 AM  
Blogger Larry Fafarman said...

Colin said ( 5/15/2006 10:01:09 AM ) --

>>>>>See also Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248 (10th Cir. 2004) (“It may seem odd that a complaint for nominal damages could satisfy Article III's case or controversy requirements, when a functionally identical claim for declaratory relief will not. But this Court has squarely so held. ........ (A concurring opinion in this case argues that the Supreme Court’s holding that nominal damages cannot be mooted should be overruled, but acknowledges that the rule is controlling.)<<<<<<<

AT LAST ! After endlessly beating around the bush, you have finally come up with a judicial opinion that squarely faces the issues that I have raised here regarding nominal damages. Now is the time for me to do some "quote mining" of my own from the"concurring opinion" of Judge McConnell in the case above: ( see http://www.kscourts.org/ca10/cases/2004/06/02-4174.htm )

"The panel was constrained to take jurisdiction in this case because of Tenth Circuit precedent holding that a claim for nominal damages precludes dismissal of the case on mootness grounds (citations omitted). I believe those decisions were incorrect and that either an en banc court or the Supreme Court should hold that a case that is otherwise nonjusticiable on account of mootness is not saved by the mere presence of a prayer for nominal damages."

"Nominal damage awards serve essentially the same function as declaratory judgments; indeed, scholars tell us that nominal damages were originally sought as a means of obtaining declaratory relief before passage of declaratory judgment statutes.......For justiciability purposes, I see no reason to treat nominal and declaratory relief differently."

"Indeed, if appending a claim for nominal damages were sufficient to create standing or to avoid mootness, litigants could manufacture Article III jurisdiction by the mere expedient of pleading. It is hard to conceive of a case in which a plaintiff would be unable to append a claim for nominal damages, and thus insulate the case from the possibility of mootness. Article III justiciability should not be so manipulable."

"Outside of this Circuit, the cases are mixed. The Sixth and Ninth Circuits, like ours, squarely hold that a claim for nominal damages is sufficient to render a case justiciable...... Second Circuit panels appear to have taken inconsistent positions on the issue. Compare Hernandez v. European Auto Collision, Inc., 487 F.2d 378, 387 (2d Cir. 1973) (holding that a claim for nominal damages does not avoid mootness), with Davis v. Village Part II Realty Co., 578 F.2d 461, 463-64 (2d Cir. 1978) (holding that in a civil rights action, the availability of either nominal or substantial damages was sufficient to avoid mootness). The Seventh Circuit has suggested, but not held, that a claim for nominal damages is insufficient to avoid mootness....... Other circuits have held that cases are not moot where there are claims for both nominal and compensatory or punitive damages." (some citations omitted)

"I therefore conclude that although the issue is resolved in this Circuit, it has not been resolved by the Supreme Court or by the weight of authority nationwide."

"....the prospect of attorneys fees does not affect whether the underlying claim is justiciable. As the Supreme Court has stated, the "interest in attorney's fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim."

McConnell also cites Farrar, but fails to note that Farrar was not really a nominal-damages-only case -- there was declaratory relief in the form of a finding of a violation of civil rights. Hence, if the Supreme Court was truly speaking of ND-only awards when it stated in Farrar, “We therefore hold that a plaintiff who wins nominal damages is a prevailing party under 1988,” then the court was not talking about the Farrar case, and hence this statement could be considered to be mere dictum.

Also, though the courts may allow the cases to proceed on the basis of ND only, I have yet to see an ND-only award. I assert that there is no such thing as an ND-only award. Nominal damages are just a token of vindication, and any finding of vindication is at least declaratory relief. I have never seen nominal damages being granted as just a consolation prize to a plaintiff who has lost on all other claims.

If the courts refuse to stop this abuse of nominal damages claims, then Congress should take action.

Well, anyway, congratulations! You have succeeded in showing -- in spite of yourself -- that there is a real controversy over this issue of nominal damages and mootness. But you have done nothing to excuse the Dover school board's failure to repeal the ID policy in December.

>>>> I will point out, emphatically, that you are a liar. You have a despicable disregard for truth and intellectual integrity.<<<<<

Well, OK. Why don't you also tell that to Judge McConnell, whose above concurring opinion argues the same point that I have been arguing.

>>>>>The Dover plaintiffs had so many attorneys that it was almost a case of too many cooks spoil the broth.

You don’t know what that saying means, do you? The Dover plaintiffs won. Their cooked a tasty meal, as it were.<<<<<<

The defendants should not be expected to pay for beluga caviar and truffles.

Anyway, I showed that there were cases of comparable complexity where there were far fewer plaintiffs' attorneys. You have shown nothing.

>>>>>I don’t really care about your arguments as to the size of the award.<<<<<

I presume that means that you are conceding that I am right about the Dover fee award being excessive. That is how it works for me -- when I decline to debate, it is assumed that I am conceding.

>>>>>But if your arguments on that front are as appallingly stupid and ignorant as the rest of your blather, I think the ACLU and board are forever safe from your impotent and ignorant rage.<<<<<

But they won't be able to escape the rage of angry voters.

Monday, May 15, 2006 6:09:00 PM  
Blogger Colin said...

Congratulations. After doing no research yourself, you finally read a concurring opinion that I specifically pointed out to you. That is what intellectual integrity looks like, Larry – addressing both sides of an issue, instead of just pretending that you understand what is going on.

But you didn’t read far enough, did you? There is another concurrence which reaches the opposite conclusion: “Judge McConnell concludes that Carey and Memphis give rise to the argument that there can be no mootness in constitutional cases, and that it is difficult to imagine a case in which a plaintiff could not insulate the case from mootness by appending a claim for nominal damages. But this is what these cases (each authored by the distinguished and highly regarded Justice Powell) hold with no dissent in either case. The Tenth Circuit does not stand alone in its reading of these cases and the policies behind them.



I differ slightly with my distinguished colleague as well on his reading of Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 604 (2001), and Farrar. Contrary to Judge McConnell's view, it seems that the Supreme Court has stated, or at least come very close to stating, that nominal damages do prevent mootness. See Buckhannon, 532 U.S. at 604-05 (noting that, under the FHAA and the ADA, there must be a "judicially sanctioned change" in the parties' legal relationship before a party is entitled to an award of attorneys' fees, and that "[w]e have held that even an award of nominal damages suffices under this test"); Farrar, 506 U.S. at 115 ("As we have held, a nominal damages award does render a plaintiff a prevailing party by allowing him to vindicate his 'absolute' right to procedural due process through enforcement of a judgment against the defendant." ); see also City of Riverside v. Rivera, 477 U.S. 561, 574 (1986) ("Unlike most private tort litigants, a civil rights plaintiff seeks to vindicate important civil and constitutional rights that cannot be valued solely in monetary terms."); Carey, 435 U.S. at 266. Thus an award of nominal damages is a judicially sanctioned change in the parties' legal relationship. See also Michael Ashton, Note, Recovering Attorneys' Fees with the Voluntary Cessation Exception to Mootness Doctrine after Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human Resources, 2002 Wisc. L. Rev. 965, 979 (2002) ("Even a claim for nominal damages prevents the case from becoming moot. ").



Judge McConnell suggests that the quoted language from Farrar and Buckhannon is of limited application: "where nominal damages are properly awarded in a case within the court's Article III jurisdiction, the plaintiff has "'prevailed'" within the meaning of 42 U.S.C. § 1988." Concurrence, at 12 (McConnell, J.). I don't read the language quite so narrowly. If the case were moot under Buckhannon, obviously no fees could be awarded. The language must mean that if a plaintiff seeks to vindicate her absolute right through a nominal damages award, then we still have a case or controversy, and there are no prudential reasons to avoid hearing the case."


So what you have is a single judge in a single circuit who thinks that the law should be otherwise, but that only one court has ever actually agreed with him – a Second Circuit panel in 1978, before either Buckhannon or Farrar were decided. His colleague points out the difference in opinion, but the two judges agree that whatever the law should be, what it is is that a cause of action for nominal damages precludes mootness.

Nowhere in the opinion does anyone discuss what the Third Circuit holds. So let’s look at it:

“Although Donovan's claim for declaratory and injunctive relief is moot, her damages and attorney's fees claims continue to present a live controversy. 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.”).” Donovan ex rel. Donovan v. Punxsutawney Area School Bd., 336 F.3d 211 (3rd Cir. 2001). And does the Third Circuit hold that Jersey Cent. applies to nominal damages? Yes: “Nonetheless, where a plaintiff has requested several forms of relief and some of the requests become moot, the court must still consider the viability of the remaining requests. Jersey Cent. Power & Light Co. v. State of New Jersey,772 F.2d 35, 40 (3d Cir.1985). “[T]he availability of damages or other monetary relief almost always avoids mootness.” Id. at 41. Therefore, we must review the District Court's qualified immunity analysis with respect to Doe's nominal and punitive damages claims.” (Note that the punitive damages claim is not the reason why mootness is precluded, because the PD claim is predicated on the necessary ND claim. The concurrence highlights this: “I would hold that Doe's punitive damages claim is barred by the PLRA, although I agree that the claim for nominal damages prevents our dismissing Doe's action as moot.”)

So you have one pontificating judge in the 10th Circuit who thinks that while the law should be something else, it clearly isn’t. His own circuit and his own panel disagree with him. Meanwhile, the 3rd Circuit clearly does not think that monetary damages, nominal or otherwise, are mootable. And the 3rd Circuit's opinion, of course, was binding on Judge Jones.

This is why a little knowledge is a dangerous thing. You want to believe, and you want other people to believe, that you understand the issues. But you don’t, and you aren’t interested in learning – you adopt a position and insist that it is true, regardless of the weight of evidence or lack of any support whatsoever for your positions.


McConnell also cites Farrar, but fails to note that Farrar was not really a nominal-damages-only case -- there was declaratory relief in the form of a finding of a violation of civil rights.

I haven't been paying enough attention to your blather on this issue, and didn't realize how dumb your argument here is. You still don't know what these words mean. McConnell is not as stupid as you are. He understands that there was no "declaratory relief" in that case. Look up "declaratory relief" and tell me where you see it in Farrar. You're playing fast and loose with terminology you don't understand again: an award of nominal damages is not declaratory relief. McConnell doesn't think that the Supreme Court somehow forgot that the plaintiffs got declaratory relief. He understands that the Farrar holding is in regards to the ND claim in and of itself, and not dependent on or even relevant to any imagined declaratory relief.

Hence, if the Supreme Court was truly speaking of ND-only awards when it stated in Farrar, “We therefore hold that a plaintiff who wins nominal damages is a prevailing party under 1988,” then the court was not talking about the Farrar case, and hence this statement could be considered to be mere dictum.

No, moron. Once again, you don’t even have the basic vocabulary to understand the language you’re quoting. When a court says “We hold X,” that’s a holding. As in, not dicta. They are different, and in many ways completely opposite, things. Read a book.

Also, though the courts may allow the cases to proceed on the basis of ND only, I have yet to see an ND-only award. I assert that there is no such thing as an ND-only award.

That is because you are either illiterate or just too damned lazy to read the case I’ve been citing to you. See Buss v. Quigg, 91 Fed.Appx. 759 (3rd Cir. 2004) (“The jury did not award any damages to plaintiffs in spite of its finding because of an error in the District Court's instructions. The District Court sought to rectify this error by granting plaintiffs nominal damages of one dollar each. Pursuant to 42 U.S.C. § 1988, the District Court also awarded Buss, as the prevailing party, [attorney's fees and costs] . . . . We conclude . . . that Buss could recover attorneys fees in spite of the nominal damages she received.”) See also Brown, supra. What is confusing you about those words? You keep asserting things that you want to be true, even when you can read plainly and clearly that they are not. You are, for the thousandth time, a liar and a fool.

Nominal damages are just a token of vindication, and any finding of vindication is at least declaratory relief. I have never seen nominal damages being granted as just a consolation prize to a plaintiff who has lost on all other claims.

You haven’t seen much of anything, because you keep your head buried firmly in the sand. Find me a case that says that nominal damages are declaratory relief. You can’t, because they are different things. McConnel thinks they should be thought of in the same way, but he acknowledges that they are different. You, however, cannot admit that, because it would be a chink in the wall of lies and obfuscation you are trying to build around your baseless slander of the Dover board.

If the courts refuse to stop this abuse of nominal damages claims, then Congress should take action.

If you want to argue about what Congress should do, go ahead. I could care less. I will point out that of the many things you have failed to even try to prove, one of them is that there is any such abuse. Just more speculation and blather.

Well, anyway, congratulations! You have succeeded in showing -- in spite of yourself -- that there is a real controversy over this issue of nominal damages and mootness.

No, Larry. No real controversy at all. McConnell thinks it’s an interesting issue, and thinks that there might be some meat to it. But he shows that the most charitable interpretation is that some courts that haven’t yet addressed the issue might one day throw some wrinkles in. One circuit decision, outdated and superceded by later Supreme Court precedent, does not create controversy. You’re just another creationist insisting that we “teach the controversy” and aware of the fact that a dedicated liar can present the appearance of such controversy where educated people understand that there is none.

>>>> I will point out, emphatically, that you are a liar. You have a despicable disregard for truth and intellectual integrity.<<<<<

Well, OK. Why don't you also tell that to Judge McConnell, whose above concurring opinion argues the same point that I have been arguing.


Because he doesn’t. He clearly acknowledges that the law is not what you’ve been pretending that it is, just that he thinks that it should change. That’s why his opinion is a concurrence to his own majority opinion; he was constrained to hold that mootness does not apply in a case for nominal damages because the law is clear. Read also the second concurrence, which addresses McConnell’s points. (That’s a rhetorical statement; we both know that you will not read the rest of the opinion for anything more than soundbytes, and that you will refuse to admit that it vitiates your dishonest pretensions.)

You don’t know what that saying means, do you? The Dover plaintiffs won. Their cooked a tasty meal, as it were.<<<<<<

The defendants should not be expected to pay for beluga caviar and truffles.


They should if that’s what they got, and then tried a dine-and-dash. It’s a metaphor strained past its breaking point, but the defendants created the case by infringing on the Kitzmillers’ rights. They made their own bed, to start a new metaphor.

Anyway, I showed that there were cases of comparable complexity where there were far fewer plaintiffs' attorneys. You have shown nothing.

Because I don’t care. I’m only interested in the more narrow issue of mootness and fee qualification. I merely noted that you’re an inveterate liar, and having seen the way you twist, distort, and invent facts on those narrow issues, I wouldn’t trust your representation of the fee liability issue any further than I could throw Justice Scalia.

That is how it works for me -- when I decline to debate, it is assumed that I am conceding.

I don’t care.

But they won't be able to escape the rage of angry voters.

I don’t care.

Monday, May 15, 2006 7:40:00 PM  
Anonymous W. Kevin Vicklund said...

Why should the voters be angry? The new board did what they said they were going to do before the election.

1) Before the election, they said they wanted to let the court make a decision.

2) Their main campaign promise was to involve the community in decisions and not act unilaterally.

3) They wanted to permanently remove ID from science class.

4) They wanted to look into a class that discusses ID in non-scientific setting, such as current events.

5) They wanted to keep the fees to a minimum and avoid future lawsuits

6) They made several other campaign promises that dd not involve ID, such as resolving the teachers' contracts and tax issues.

The only way they could meet all 5 of the goals related to ID would be to let the suit run its course and not appeal. For one thing, that's what they promised to do (item 1). It would be against the grain to take an action directly in violation of one of their promises as their very first action.

Second, they would be acting unilaterally, without obtaining the community response post-eection (item 2). Besides, with the exception of Napierski, the three citizens that commented on the issue all praised the decision of the new board to wait for the decision of the judge. Besides, many people in the community wanted some resolution, and just making the case go away would not bring resolution. It had gone too far by that point - the community needed closure.

Third, no action they could take could prevent a future board from reinstating the policy(item 3). Only a court order could do that, and it was too late for a court-ordered settlement at that point. Only a court-ordered injunction or post-award settlement could meet the need by the time they took office.

Fourth, the decision could give them guidance on what type of course they could offer that contained ID that would be unlikely to trigger another lawsuit. Of course, there was no guarantee that the judge would make the distinction in his judgement or that someone wouldn't file a suit, but it would establish persuasive authority if he did include it in his opinion.

Finally, the cost of the litigation. The solicitor they had retained, who had access to the details of the case and was not biased, had advised them that they could not moot the case. The other legal experts involved in the case had also advised them that there was no way to end the case prematurely. Colin has provided numerous primary authorities, both mandatory and persuasive, including one case that the lawyers of the defense team had worked on, that said they could not moot the case - it is likely that the lawyers provided some of them to the board. All Mr. Napierski had was a random lawyer whose expertise was in real estate, not civil rights, and was not otherwise involved in the case. They had every reason to believe their lawyers, and no particular reason to believe the real estate lawyer.

But let's look at the implications of them following the real estate lawyer's recommendation by rescinding the policy unilaterally and moving to moot the case.

First scenario: TMLC refuses to file the motion, knowing from experience it would fail and only serve to drive up the plaintiffs' attorney fees should they prevail. The board has now broken a campaign promise to involve the community and achieved no result that they wouldn't have done at the January meeting. Alternatively, they've wasted money by holding a special meeting so that they could obtain community involvement.

Second scenario: they file the claim and the judge rules against mootness. The plaintiffs' attorney fees rise as a result of having to defend against the mootness claim. They are even worse off than in scenario 1, because all of those negative consequences also apply. Also, the plaintiffs may not agree to accept less fees than they are entitled to due to the interference.

Third scenario: the judge rules the declarative and injunctive claims moot but not the nominal damages claim. They now lose the ability to permanently prohibit ID in science class, but still have to pay attorney fees (which have now increased). This could also turn into a variant of scenario 4.

Fourth scenario: the judge rules all claims moot. The plaintiffs appeal, extending the lawsuit for years in the appellate courts, running through the same analysis at each layer. The attorney fees keep piling up. The citizens, most of whom want an end to the lawsuit, get pissed at the board for taking the action that put the case into appeal. And they still run the risk that a higher court decides it is not moot. The only way the plaintiffs would allow them to avoid appellate court is to enter a court-ordered settlement, in which the plaintiffs can demand attorney fees. And again, the plaintiffs would be considerably less likely to accept lower fees in the settlement.

Scenario 1 they lose face and perhaps cost the taxpayers money. Scenario 2 through 4 the only way they avoid attorney fees is to go all the way to the Supreme Court on the plaintiffs' appeals and win, but thi will take years and further divide the community in the interim - and they had made a campaign commitment to heal the community. If at any point they lose on the merits, the plaintiffs probably collect higher attorney fees than they would have otherwise collected.

So what happens if they do nothing?

Judge Jones rules either for the plaintiffs or against on the merits. If he rules against, the board is in a good bargaining position to enter a court-ordered settlement on the appeal sure to ensue and significantly reduce any fees by offering to accept a permanent injunction. (In scenarios 2 and 3 above, they could also do this if the judge ruled against on the merits, but the plaintiffs would demand higher fees).

Or the judge could rule in favor of the plaintiffs and the board could attempt to reduce the fees they had to actually pay by pointing out how they were against the policy and didn't interfere in the lawsuit.

Oh wait, that's exacty what happened. By doing nothing, they got everything they wanted - closure, a permanent end to the policy, community input, and they saved over a million dollars to boot! They also got a ruling that can be cited by other courts as persuasive authority so that other communities don't have to go through the same anguish.

No, it made no sense for the new board to try to interfere in the court case.

Monday, May 15, 2006 9:04:00 PM  
Blogger Larry Fafarman said...

Colin said ( 5/15/2006 07:40:22 PM ) --

>>>>>Congratulations. After doing no research yourself, you finally read a concurring opinion that I specifically pointed out to you.<<<<<

I can't do much research by myself. I don't have access to Westlaw or something similar, and I am hampered by a slow dial-up connection. You make matters worse by not giving URL links to the cases that you cite. I cannot get down to the law library to do research, and it would not be worth the effort to go down there anyway. Furthermore, legal research in a library is slower and less effective than legal research by computer.

>>>>> That is what intellectual integrity looks like, Larry – addressing both sides of an issue, instead of just pretending that you understand what is going on.<<<<<

You did not address the issues raised by Judge McConnell in the Utah case -- you only pointed out that he opposed the idea that a nominal damages claim alone should be sufficient to prevent mootness.

>>>>>>So what you have is a single judge in a single circuit who thinks that the law should be otherwise, but that only one court has ever actually agreed with him – a Second Circuit panel in 1978, before either Buckhannon or Farrar were decided.<<<<<

He claimed that only the 6th and 9th circuits clearly agreed with the 10th circuit on this issue. And he indicated that some other circuits were leaning away from the 10th circuit's position.

You have clearly moved the goalposts. First you said that I could not find any legal authority to support my position. Now that I have found such legal authorities, you are trying to ignore them. At least I have conceded that there is a controversy -- you have not even done that much.

>>>>>>Nowhere in the opinion does anyone discuss what the Third Circuit holds. So let’s look at it:
(quoting a 3rd circuit opinion) "T]he availability of damages or other monetary relief almost always avoids mootness....."(emphasis added)<<<<<

Note the emphasis on the word "almost" -- obviously leaving room for exceptions. Also does not specifically address the issue of nominal damages, which are arguably different from other kinds of damages, and the 3rd circuit judges who made the above statement might not have had nominal damages in mind.

>>>>>(another quote from a 3rd circuit opinion) “Nonetheless, where a plaintiff has requested several forms of relief and some of the requests become moot, the court must still consider the viability of the remaining requests."<<<<<

OK, a court can "consider" the claim for nominal damages and then rule that this claim is also moot because there are no other existing claims to support it.

>>>>McConnell doesn't think that the Supreme Court somehow forgot that the plaintiffs got declaratory relief.<<<<<

I think that was an oversight on McConnell's part. And he did not say that the Supreme Court did not forget that the plaintiffs got declaratory relief -- which they did.

>>>>Also, though the courts may allow the cases to proceed on the basis of ND only, I have yet to see an ND-only award. I assert that there is no such thing as an ND-only award.
That is because you are either illiterate or just too damned lazy to read the case I’ve been citing to you. See Buss v. Quigg, 91 Fed.Appx. 759 (3rd Cir. 2004)<<<<<

And you are just too damned lazy to give URL links for cases that you cite.

>>>>Well, anyway, congratulations! You have succeeded in showing -- in spite of yourself -- that there is a real controversy over this issue of nominal damages and mootness.

No, Larry. No real controversy at all. McConnell thinks it’s an interesting issue, and thinks that there might be some meat to it. But he shows that the most charitable interpretation is that some courts that haven’t yet addressed the issue might one day throw some wrinkles in.<<<<<<<

Now you are the liar -- and a big one. McConnell thinks that it is much more than just an "interesting issue" --

"....either an en banc court or the Supreme Court should hold that a case that is otherwise nonjusticiable on account of mootness is not saved by the mere presence of a prayer for nominal damages.......For justiciability purposes, I see no reason to treat nominal and declaratory relief differently........Indeed, if appending a claim for nominal damages were sufficient to create standing or to avoid mootness, litigants could manufacture Article III jurisdiction by the mere expedient of pleading." -- see http://www.kscourts.org/ca10/cases/2004/06/02-4174.htm

>>>>McConnel thinks they should be thought of in the same way, but he acknowledges that they are different.<<<<<

Wrong. He said, "For justiciability purposes, I see no reason to treat nominal and declaratory relief differently."

>>>>That is how it works for me -- when I decline to debate, it is assumed that I am conceding.
I don’t care.<<<<<<

Since you don't care, then I presume that it is OK with you if I tell people that you have tacitly conceded the correctness of my claim that the Dover plaintiffs ran up an exorbitant legal bill by charging for too many attorneys.

>>>>>But they won't be able to escape the rage of angry voters.
I don’t care.<<<<<

You don't care, but the ACLU, the AUSCS, and the Dover C.A.R.E.S. had better care.

Tuesday, May 16, 2006 5:10:00 AM  
Blogger Larry Fafarman said...

Reply to W. Kevin Vicklund ( 5/15/2006 09:04:41 PM ) --

Kevin the hypocrite -- who keeps posting here while asking Panda's Thumb to kick me off -- strikes again.

>>>>>Why should the voters be angry? The new board did what they said they were going to do before the election.

1) Before the election, they said they wanted to let the court make a decision.<<<<<

No, they said that they opposed the ID policy and that they wanted to prevent loss of the school district's money in the lawsuit. A lot of their support came from people who were just concerned about the costs of the lawsuit. The old board could have done as good a job of doing nothing.

>>>>2) Their main campaign promise was to involve the community in decisions and not act unilaterally.<<<<<

When the old school board introduced the ID policy, it did so in relative secrecy and was acting unilaterally. In contrast, there had been community input coming out the ears by the time the new school board members took office.

>>>>3) They wanted to permanently remove ID from science class.<<<<<

So why didn't they, instead of waiting for Judge Jones to do it, at a seven-figure cost to the school district?

>>>>4) They wanted to look into a class that discusses ID in non-scientific setting, such as current events.<<<<<

So why did they need the lawsuit for that?

>>>>5) They wanted to keep the fees to a minimum and avoid future lawsuits<<<<<

No, they did not want to keep fees to a minimum. Some of them said in mid-November that they did not want Jones to dismiss the case. And their primary task was to deal with this lawsuit and not worry about avoiding future lawusits.

>>>>6) They made several other campaign promises that dd not involve ID, such as resolving the teachers' contracts and tax issues.<<<<<

So?

>>>>The only way they could meet all 5 of the goals related to ID would be to let the suit run its course and not appeal. For one thing, that's what they promised to do (item 1).<<<<<

No, they did not promise that.

>>>>>Second, they would be acting unilaterally, without obtaining the community response post-eection (item 2).<<<<<<

There had been community response coming out the ears for a year. Also, the proposal to try to avoid the fees by repealing the ID policy prior to judgment was not new -- it had been introduced at the previous board meeting. Also, Pennsylvania law does not require advance notice of the subject matter of the meetings of public bodies. If the school board wanted more input, a "special" or "emergency" meeting could have been scheduled for early December. Laws allow special and emergency meetings for a reason.

>>>>> Besides, with the exception of Napierski, the three citizens that commented on the issue all praised the decision of the new board to wait for the decision of the judge.<<<<<

The board did not have to accept the views of those three citizens just because they outnumbered Napierskie.

>>>>>> Besides, many people in the community wanted some resolution, and just making the case go away would not bring resolution. It had gone too far by that point - the community needed closure.<<<<<<<

If the board wanted resolution through the courts, then why didn't the board go all the way by appealing the decision? Why was the board satisfied with just an unreviewed opinion of a single lousy district-court judge? An appeal would have been quite cheap compared to the cost of the original trial. Unless complications arose, the plaintiffs would just get to file one brief and maybe make one appearance in an oral hearing if the appeals court requested it. There would have been none of the factors that drove up the costs of the district court trial, e.g., at least five plaintiffs' attorneys in the courtroom on every day of a six-week trial, numerous depositions, and side issues like the book publisher's motion to intervene.

There has been no closure. There is lingering resentment and recriminations over the school district's loss of one million dollars. I predict that the present school board's muffing of an opportunity to possibly avoid the fees will be an issue in the next school board election. Candidates opposing the incumbents would be foolish not to raise this issue.

>>>>>Third, no action they could take could prevent a future board from reinstating the policy.<<<<<<

So this prevention of something purely hypothetical -- the possibility that a future board would re-instate the ID policy -- possibly cost the school district $1 million. Do you think it was worth it?

>>>>>>Fourth, the decision could give them guidance on what type of course they could offer that contained ID that would be unlikely to trigger another lawsuit.<<<<<

What a joke. The Dover opinion did not clarify anything -- it only added to the confusion. There is now the question of whether Judge Jones banned just ID or whether he banned all criticisms of evolution theory. As for another lawsuit, that bridge could be crossed when coming to it -- if ever. I think that another lawsuit would have been very unlikely, because Dover residents already had their fill of legal action. And again, the cost of this dubious "guidance" from Judge Jones was maybe $1 million dollars.

>>>>>The solicitor they had retained, who had access to the details of the case and was not biased, had advised them that they could not moot the case.<<<<<

Everyone had access to the details of the case.

>>>>>The other legal experts involved in the case had also advised them that there was no way to end the case prematurely.<<<<<

What do you mean, "other legal experts involved in the case"? The solicitor was not involved in the case. The legal experts who were involved in the case -- the defense attorneys, the plaintiffs' attorneys (who declined to comment), and the judge (who had no business giving legal advice to the board) -- were all biased. So it boiled down to a "real estate" attorney's opinion against a "school board" attorney's opinion -- and the benefit of the doubt was on the side of the real estate attorney's opinion.

>>>>>>Colin has provided numerous primary authorities, both mandatory and persuasive, including one case that the lawyers of the defense team had worked on, that said they could not moot the case<<<<<

LIAR! All Colin succeeded in doing was show that there is a controversy over whether a nominal damage claim alone could prevent a case from being declared moot. He never showed a true example of a court awarding nominal damages as a consolation prize to a plaintiff who lost on all other claims as a result of mootness and/or lack of merit. He never showed that there is any controversy over the denial of an attorney fee award when a case has been declared moot. He never showed that repeal of the ID policy could not have been considered grounds for declaring the Dover case moot. He never showed that a court does not have the discretion to deny attorney fee awards to a "prevailing party" on the grounds that the party's success was too small to justify such an award. You Darwinists don't do so well where your opposition is not censored, as happens on Panda's Thumb.

>>>>>First scenario: TMLC refuses to file the motion, knowing from experience it would fail and only serve to drive up the plaintiffs' attorney fees should they prevail. <<<<<

The TMLC had already been "fired" by the new board.

>>>>> The board has now broken a campaign promise to involve the community and achieved no result that they wouldn't have done at the January meeting.<<<<<

Wrong. Everyone knew that the January meeting would be too late to try Napierskie's proposal.

>>>>>Alternatively, they've wasted money by holding a special meeting so that they could obtain community involvement.<<<<<

Wasted money? A special meeting probably would not have cost anything. And the seven-figure liability of the school district was infinitely more important than whatever the meeting could have cost. You are really getting desperate to make an argument like that.

>>>>>Second scenario: they file the claim and the judge rules against mootness. The plaintiffs' attorney fees rise as a result of having to defend against the mootness claim.<<<<<

Defending against the mootness claim would have been comparatively cheap. The school district had a lot to gain and little to lose by pursuing the mootness issue.

>>>>>the plaintiffs may not agree to accept less fees than they are entitled to due to the interference.<<<<<<

There was never any guarantee or expectation that the plaintiffs would offer a discount on the their calculated attorney fees.


>>>>>Third scenario: the judge rules the declarative and injunctive claims moot but not the nominal damages claim. They now lose the ability to permanently prohibit ID in science class, but still have to pay attorney fees (which have now increased).<<<<<

The courts would probably not award the plaintiffs nominal damages as a "consolation prize" if the claims for injunctive and declaratory relief had been declared moot. And even if the plaintiffs were awarded only nominal damages, the courts could rule that such relief is too small to justify an award of attorney fees.

>>>>>Fourth scenario: the judge rules all claims moot. The plaintiffs appeal, extending the lawsuit for years in the appellate courts, running through the same analysis at each layer. The attorney fees keep piling up.<<<<<

The costs of appeal would have been cheap compared to the cost of the district court action. And the school board would have a good chance of winning in your above scenario.

>>>>> Scenario 2 through 4 the only way they avoid attorney fees is to go all the way to the Supreme Court on the plaintiffs' appeals and win<<<<<

If the Supreme Court does not grant certiorari (i.e., rejects the case), it is necessary to win only in the appeals court.

>>>>By doing nothing, they got everything they wanted -- closure, a permanent end to the policy, community input, and they saved over a million dollars to boot!<<<<<

As I discussed above, there is no closure. There was already plenty of community input, and a special meeting could have been held for more. And the "saving" of over a million dollars is wild speculation.

>>>>>They also got a ruling that can be cited by other courts as persuasive authority so that other communities don't have to go through the same anguish.<<<<<

Good grief -- it is just a lousy district-court decision of a single judge. BTW, did you ever find that old 9th circuit local rule I told you about that barred the citation of any district-court opinion in the courts of the 9th circuit?

Tuesday, May 16, 2006 8:36:00 AM  
Anonymous Rilke's Granddaughter said...

Well, Larry, I've read everything that Colin has posted, and all of your responses. There are some clear points that emerge:

1) You are completely ignorant of the law.

2) You are remarkably stupid.

3) You are a consistent and unmitigated liar.

Why? It doesn't take much to demonstrate some integrity; why can't you do it?

Why can't you manage to learn a single thing from the remarkably good legal education that Colin is providing?

Why do you continue to repeat the same demonstrated lie again and again and again?

Why do you continue to do incredibly stupid things like post on Panda's Thumb under different assumed names in violation of their policy?

I have known ignorant posts, annoying posters, foolish posters, etc. But you are the master: unable to learn, unable to come up with new ideas, unable to recognize your malicious, unethical behavior....

WHY ARE YOU SO MIND-BOGGLINGLY STUPID?

It's simply baffling.

Tuesday, May 16, 2006 1:52:00 PM  
Anonymous W. Kevin Vicklund said...

I can't type for very long - my wife's grandfather was supposed to be taken off life-support a short time ago and I'm waiting for the call. I may be unavailable for the next week as a result, but I hope to address some other points later on.

>>>Good grief -- it is just a lousy district-court decision of a single judge. BTW, did you ever find that old 9th circuit local rule I told you about that barred the citation of any district-court opinion in the courts of the 9th circuit?<<<

It can still be cited as a persuasive authority. Is it as persuaive as a Circuit Court or Supreme Court decision? No. But it is still persuasive. I recommend you read the "Legal research" section on Wikipedia. And this ties in to the other half of your closing paragraph. Since last you asked, I have looked for a total of probably 20 hours for such a rule. So far, I have not found it, but I do have a hypothesis as to what actually happened. Here is what I have found, though.

The following local rules of the three Federal District Courts are accurate as of 1999. Bolded-italicised phrases are my emphasis. The Federal Supplement reports district court decisions.

>>>United States District Court for the Central District of California
"3.9.1 Citations.
"3.9.1 Citations--Acts of Congress. All citations to Acts of Congress shall include a parallel citation to the
United States Code by title and section.
"3.9.2 Citations--regulations. All citations to regulations shall include a citation to the Code of Federal
Regulations by title and section, and the date of promulgation of the regulation.
"3.9.3 Citations--cases. Initial citation of any United States Supreme Court case shall include parallel
citations to United States Reports, Lawyer's Edition, and Supreme Court Reporter. Federal Reporter, Federal
Supplement
or Federal Rules Decisions citations shall be used where available. Initial state court citations shall
include both the official reports and any regional reporter published by West Publishing Company. California parallel
citations may be limited to the official reports and California Reporter."
C.D. Cal. R. 103(9).<<<

>>>United States District Court for the Eastern District of California
"Citations of federal cases shall be to the United States Supreme Court Reports, Federal Reports, Federal
Supplement
, or Federal Rules Decisions, if so reported, and shall indicate the court and year of decision. Citations to
federal statutes shall be to the United States Code, if so codified. Citations to federal administrative rules shall be to
the Code of Federal Regulations, if so codified, or to the Federal Register, if published therein. Citations of California
cases shall be to the official California Reports. Citations of other state cases shall be to the National Reporter
System, showing state and year of decision. Other citations may be added. If case, statutory, or regulatory authority
is relied upon which has not been reported, published, or codified in any of the foregoing references, a copy of that
authority shall be appended to the brief or other document in which it is cited. This requirement shall include, but not
be limited to, the Statutes at Large, the Public Laws of the United States, the California Administrative Code,
administrative regulations not contained in the Code of Federal Regulations or the Federal Register, and decisions
and other matters published in specialized reporter services." E.D. Cal. R. 134(d).<<<

>>>United States District Court for the Northern District of California
"Unless otherwise directed by the assigned judge, citation to authorities in any paper shall include:
"(1) In any citation to Acts of Congress, a parallel citation to the United States Code by title and section;
"(2) In any citation to U.S. regulations, a citation to the Code of Federal Regulations by title and section, and
the date of promulgation of the regulation;
"(3) In any citation to a U.S. Supreme Court Case, a citation to either United States Reports, or Lawyers'
Edition, or Supreme Court Reporter should be used. If the case is not yet available in those formats but is available on
electronic databases, citation should indicate the database, year and any screen or page numbers, if assigned;
"(4) In any citation to other federal courts, unless an alternate reporting service is widely available, a citation
to the Federal Reporter, Federal Supplement or Federal Rules Decisions should be used
; and
"(5) In any citation to a state court, citations should include both the official reports and any widely
available alternate reporting service (e.g., West Publishing)." N.D. Cal. Civ. R. 3-4(d) commentary.<<<

As early as 1999, the district courts permitted citations of district court opinions. I haven't traced it further back yet. However, I note that a number of 9th Circuit Court opinions in 1997 and 1998 do have citations to district court opinions, which would be highly irregular if the courts were not allowed to use them.

My hypothesis is this. I believe that you tried to cite district court cases as mandatory authority (that is, binding or precedential - see the Wikipedia article I mentioned earlier). District court cases can't be cited as a mandatory authority at any level - a point that I was incorrect on in the past, as you correctly pointed out to me. They can be cited as persuasive authority, however. The lower the court, the less weight the opinion carries, of course, but a district court opinion still carries a substantial amount of weight.

To be fair, you may have incorrectly phrased your citation to give the impression that you were citing the district court for mandatory authority, when you actually intended it as persuasive authority. Or in your inexperience, you may have not realized that there was a difference. Or you might have just not correctly followed the format they required - they can be really painstaking on the details.

Tuesday, May 16, 2006 4:10:00 PM  
Blogger Larry Fafarman said...

Reply to Rilke's Granddaughter --

Rilke's Granddaughter is another hypocrite like Kevin Vicklund. Both of them have the unmitigated gall to come here and post comments while urging the Panda's Thumb bloggers to ban me and delete me. Both are exploiting the fact that I cannot retaliate against them here because of my no-censorship pledge.

>>>>>Well, Larry, I've read everything that Colin has posted, and all of your responses. There are some clear points that emerge:

1) You are completely ignorant of the law.

2) You are remarkably stupid.

3) You are a consistent and unmitigated liar.<<<<<

Judge McConnell of the 10th Circuit has the same opinion that I do regarding mooting of claims for nominal damages, yet you have not called him "remarkably stupid" and a "consistent and unmitigated liar" who is "completely ignorant of the law." Why the double standard, RG?

Judge McConnell's opinion on mooting of nominal-damages claims is a "concurring" opinion in Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248 (10th Cir. 2004), at http://www.kscourts.org/ca10/cases/2004/06/02-4174.htm For excerpts, see my post of Monday, May 15, 2006 6:09:24 PM

>>>>>>Why can't you manage to learn a single thing from the remarkably good legal education that Colin is providing?<<<<<<

You arrogant Darwinists think that others' only purpose in discussing things with you is -- or should be -- just to be "educated" by you. You think that others are not entitled to their opinions. You are the all-wise, all-knowing gurus and others know nothing and cannot reason.

>>>>>I have known ignorant posts, annoying posters, foolish posters, etc<<<<<

And you think that your own posts are not "ignorant," "annoying," and "foolish." I haven't noticed you making any intelligent contributions to the discussions here. All that you do is just make insults and ad hominem attacks.

Tuesday, May 16, 2006 4:13:00 PM  
Anonymous Rilke's Granddaughter said...

Larry said:
"Rilke's Granddaughter is another hypocrite like Kevin Vicklund. Both of them have the unmitigated gall to come here and post comments while urging the Panda's Thumb bloggers to ban me and delete me. Both are exploiting the fact that I cannot retaliate against them here because of my no-censorship pledge."

Interesting. Since you have no evidence whatever tht I have called for panda's thumb bloggers to ban and delete you,
I NOTE THAT YOU ARE AGAIN LYING. No other word for it, I'm afraid.

The PT policy is: banning for posting under multiple aliases. You posted under multiple aliases.

What part of that basic logic: if A then B do you not understand?

>>>>>Well, Larry, I've read everything that Colin has posted, and all of your responses. There are some clear points that emerge:

1) You are completely ignorant of the law.

2) You are remarkably stupid.

3) You are a consistent and unmitigated liar.<<<<<

Larry responded,
"Judge McConnell of the 10th Circuit has the same opinion that I do regarding mooting of claims for nominal damages, yet you have not called him "remarkably stupid" and a "consistent and unmitigated liar" who is "completely ignorant of the law." Why the double standard, RG?"
Because that's not what his opinion is. You have misunderstood his opinions because you are remarkably stupid and ignorant of the law. Colin has made it quite clear that the case could not be mooted since nominal damages were required.

Your ignorance of the law, and your remarkable stupidity make you unable to recognize the complete failure of your analysis.

>>>>>>Why can't you manage to learn a single thing from the remarkably good legal education that Colin is providing?<<<<<<

Larry said
:You arrogant Darwinists think that others' only purpose in discussing things with you is -- or should be -- just to be "educated" by you. You think that others are not entitled to their opinions. You are the all-wise, all-knowing gurus and others know nothing and cannot reason."
Larry, you are certainly entitled to your opinions; I've never disputed that. But your opinions are demonstratably ill-informed, and illogical. They are based on your inability to understand law and reason.

What baffles me, and the reason I bring it up, is why you are unable to learn from those who point out quite clearly that you are ignorant of the law and unable to reason from it. Why?

>>>>>I have known ignorant posts, annoying posters, foolish posters, etc<<<<<

Larry said,
"And you think that your own posts are not "ignorant," "annoying," and "foolish."

I am quite certain that you find my posts annoying. Truth hurts, Larry.

And since it is a fact that you are ignorant of the law and unable to reason, I certainly can't be accused of being ignorant.

I may be foolish, since you are simply too dense, and more importantly UTTERLY UNWILLING TO ADMIT THAT YOU DON'T KNOW WHAT YOU'RE TALKING ABOUT.


Larry said,
" I haven't noticed you making any intelligent contributions to the discussions here."

I'm not here to talk about the details of the cases; I'm here to figure out how you can be so mind-bogglingly ignorant and malicious all at the same time. It's fascinating.

Larry,
"All that you do is just make insults and ad hominem attacks."

Your ignorance of the language confounds you - I have not made any ad-hominem attacks. I have not claimed that your arguments are stupid because you are stupid. I have claimed that the stupidity of your arguments DEMONSTRATES your ignorance of the law and your inability to reason.

Tuesday, May 16, 2006 9:09:00 PM  
Blogger Larry Fafarman said...

Rilke's Granddaughter said --

>>>>>Since you have no evidence whatever tht I have called for panda's thumb bloggers to ban and delete you,
I NOTE THAT YOU ARE AGAIN LYING..<<<<<<

You might as well have asked the PT bloggers to ban and delete me. You kept incessantly pointing fingers at my posts, which were under false names (to try to evade a ban, of course, and I was banned by PT before I ever broke any of PT's rules). You knew that this invited deletion of my posts and/or a ban of my new posting name. There are very few dissident posts on PT, so you and Kevin practically assumed that any dissident post was mine (also, some of my previous ideas were recognizable). I have no idea why you and Kevin appointed yourselves to be troll-hunting goons of PT.

There is no real debate going on now at PT. I was the only real dissident among the regular commenters, and I have quit PT in frustration and disgust.

>>>>>"Judge McConnell of the 10th Circuit has the same opinion that I do regarding mooting of claims for nominal damages, yet you have not called him "remarkably stupid" and a "consistent and unmitigated liar" who is "completely ignorant of the law." Why the double standard, RG?"
Because that's not what his opinion is. You have misunderstood his opinions because you are remarkably stupid and ignorant of the law. <<<<<

YOU are an obvious liar who cannot even get objective facts straight. How do you expect to have any credibility at all when you cannot even get the objective facts straight? Here again are some of the things that McConnell said:

"I believe those decisions were incorrect and that either an en banc court or the Supreme Court should hold that a case that is otherwise nonjusticiable on account of mootness is not saved by the mere presence of a prayer for nominal damages."

"For justiciability purposes, I see no reason to treat nominal and declaratory relief differently."

"......if appending a claim for nominal damages were sufficient to create standing or to avoid mootness, litigants could manufacture Article III jurisdiction by the mere expedient of pleading."

"I therefore conclude that although the issue is resolved in this Circuit, it has not been resolved by the Supreme Court or by the weight of authority nationwide."


>>>>>>Larry said,
" I haven't noticed you making any intelligent contributions to the discussions here."

I'm not here to talk about the details of the cases<<<<<<

That was already obvious. You are here just to make a nuisance of yourself. On practically all other blogs, your comments would either be deleted or not posted in the first place. Your comments remain here only because of my no-censorship policy, which I now recognize as being too generous but I am obligated to stick to it.

Wednesday, May 17, 2006 2:23:00 AM  
Anonymous Rilke's Granddaughter said...

Larry said,
"You might as well have asked the PT bloggers to ban and delete me."

Now you're just playing games with semantics. Note that you are unable to dispute the fact that I have not requested PT to ban you or delete your posts. Why keep up the pretense?

Larry,
"You kept incessantly pointing fingers at my posts, which were under false names (to try to evade a ban, of course, and I was banned by PT before I ever broke any of PT's rules)."

And this is the heart of why I find your behavior peculiarly idiotic. You are aware that PT will ban you for using multiple names. Yet you continue to use multiple names. It doesn't matter what happened in the first place (and quite frankly, you jumped to a conclusion and now you're paying the price for that moronic behavior); you are now in violation of the PT board policy. You BANNED YOURSELF. You have no one else to blame, no one else is responsible for your banning. Just you.

And you did it knowing perfectly well that it was going to cause you to be banned. Why do it? Why engage in unethical and illogical behavior? Why be stupid in public? Why embarrass yourself?

Larry said,
"You knew that this invited deletion of my posts and/or a ban of my new posting name. There are very few dissident posts on PT, so you and Kevin practically assumed that any dissident post was mine (also, some of my previous ideas were recognizable). I have no idea why you and Kevin appointed yourselves to be troll-hunting goons of PT."

We're not. We just find you funny. And I personally dislike unethical behavior. Why be unethical? Why do dumb things that hurt yourself? Why destroy your own credibility like this?

Why? I note that you never get around to answering this question - you just deflect and blame other people for your SELF-CREATED problems. Why?

Larry,
"There is no real debate going on now at PT. I was the only real dissident among the regular commenters, and I have quit PT in frustration and disgust."

No, you were banned from PT for violating the rules. You did a stupid, malicious thing in violation of the rules of the board and common ethics and were caught. Rather than admitting your dishonest behavior, you just ignore the fact that you were dishonest.

By being so blatantly dishonest, by lying so consistently, by being so petty, childish, and dumb as to blame others for your failings, you are making it impossible for anyone to consider taking any of your other rantings seriously (not that anyone ever did after the first five or so posts on PT).

Why be a crank, Larry? Why be unethical? Why be ignorant of law and science when there are alternatives? Why be dumb and hurt yourself?

Why?

>>>>>"Judge McConnell of the 10th Circuit has the same opinion that I do regarding mooting of claims for nominal damages, yet you have not called him "remarkably stupid" and a "consistent and unmitigated liar" who is "completely ignorant of the law." Why the double standard, RG?"
Because that's not what his opinion is. You have misunderstood his opinions because you are remarkably stupid and ignorant of the law. <<<<<

Larry said,
"YOU are an obvious liar who cannot even get objective facts straight. How do you expect to have any credibility at all when you cannot even get the objective facts straight? Here again are some of the things that McConnell said:

"I believe those decisions were incorrect and that either an en banc court or the Supreme Court should hold that a case that is otherwise nonjusticiable on account of mootness is not saved by the mere presence of a prayer for nominal damages."

"For justiciability purposes, I see no reason to treat nominal and declaratory relief differently."

"......if appending a claim for nominal damages were sufficient to create standing or to avoid mootness, litigants could manufacture Article III jurisdiction by the mere expedient of pleading."

"I therefore conclude that although the issue is resolved in this Circuit, it has not been resolved by the Supreme Court or by the weight of authority nationwide."

Yup. Those don't mean what you think they mean. Try using your brain.

>>>>>>Larry said,
" I haven't noticed you making any intelligent contributions to the discussions here."

I'm not here to talk about the details of the cases<<<<<<

Larry said,
"That was already obvious. You are here just to make a nuisance of yourself. On practically all other blogs, your comments would either be deleted or not posted in the first place. Your comments remain here only because of my no-censorship policy, which I now recognize as being too generous but I am obligated to stick to it."

And the policy you have is an admirable one; it's about the only thing you do that is wholly ethical and admirable.

I'm here because I'm trying to figure out WHY you do the stupid things you do. Why you can't learn or understand the law. Why you don't seem to understand science. Why you engage in unethical behavior.

But you never answer my question. Ever. You just evade, lie, deny, obfuscate, and do stupid things (like posting over at PT even though you've been banned).

Baffling.

Wednesday, May 17, 2006 5:38:00 AM  
Blogger Larry Fafarman said...

Reply to Rilke's Granddaughter --

>>>>Note that you are unable to dispute the fact that I have not requested PT to ban you or delete your posts. Why keep up the pretense?<<<<<

There is no pretense -- the fact remains that you were one of the biggest causes of my problems at PT.

>>>>>It doesn't matter what happened in the first place <<<<<

The hell it doesn't matter what happened in the first place -- PT started it all.

>>>>"I have no idea why you and Kevin appointed yourselves to be troll-hunting goons of PT."

We're not.<<<<<

The hell you're not.

>>>>>(quoting Judge McConnell) "I therefore conclude that although the issue is resolved in this Circuit, it has not been resolved by the Supreme Court or by the weight of authority nationwide."

Yup. Those don't mean what you think they mean.<<<<<

It is not what I think they mean -- it is what they say they mean. I have never seen statements that were more unambiguous. You have zippo credibility, RG. ZIPPO.

>>>>>"Your comments remain here only because of my no-censorship policy, which I now recognize as being too generous but I am obligated to stick to it."

And the policy you have is an admirable one; it's about the only thing you do that is wholly ethical and admirable.<<<<<

Then why doesn't PT have a similar "ethical and admirable" policy?

>>>>>I'm here because I'm trying to figure out WHY you do the stupid things you do.<<<<<

You are wasting your time. Someone who cannot understand Judge McConnell's clear statements will never figure out anything.

Wednesday, May 17, 2006 7:17:00 AM  
Blogger Larry Fafarman said...

W. Kevin Vicklund said ( 5/16/2006 04:10:17 PM ) --

>>>>I can't type for very long - my wife's grandfather was supposed to be taken off life-support a short time ago and I'm waiting for the call. I may be unavailable for the next week as a result, but I hope to address some other points later on.<<<<<

Sorry to hear that -- I will try to keep this answer fairly short.

>>>>>Good grief -- it is just a lousy district-court decision of a single judge.

It can still be cited as a persuasive authority. Is it as persuaive as a Circuit Court or Supreme Court decision? No. But it is still persuasive.<<<<<

That is why we are trying to poke holes in the Dover opinion -- to make it even less persuasive than it is now.

>>>>BTW, did you ever find that old 9th circuit local rule I told you about that barred the citation of any district-court opinion in the courts of the 9th circuit?

Since last you asked, I have looked for a total of probably 20 hours for such a rule. <<<<<

Good grief -- I did not want you to go to all the trouble, unless you are really that curious. Possibly or even probably it was never part of the online rules or was deleted from the online rules.

>>>>>The following local rules of the three Federal District Courts are accurate as of 1999. Bolded-italicised phrases are my emphasis.<<<<<

These are just district-court rules. The rule that I am talking about was a circuit rule.

>>>>As early as 1999, the district courts permitted citations of district court opinions. I haven't traced it further back yet.<<<<<

My cases were in 1995-97, as I remember.

>>>>> However, I note that a number of 9th Circuit Court opinions in 1997 and 1998 do have citations to district court opinions, which would be highly irregular if the courts were not allowed to use them.<<<<<

Maybe the rule just wasn't enforced. I received an answering brief from the state of California that had a whole unpublished district-court opinion of several pages attached as an appendix. That also violated the 9th circuit's rule against citation of unpublished opinions.

>>>>>My hypothesis is this. I believe that you tried to cite district court cases as mandatory authority <<<<<

No, the issue never came up. At the time I did not know that the Federal Supplement Series was just for district-court opinions, so I might have inadvertently cited district-court opinions.

BTW, Kevin, when are you going to stop harassing me on Panda's Thumb? I thought that you were going to reform after I pointed out the error of your ways. PT has no intention of ever letting me post there again under my real name. PT is run in a very high-handed manner and there is no way I can ever get along with those people -- too bad that PT is probably the biggest blog dealing with the evolution controversy.

Wednesday, May 17, 2006 6:07:00 PM  
Blogger Colin said...

Yikes – I focus on work for a couple of days, and things blow up. Vicklund, my condolences; I hope that your family is as well as possible under the circumstances.

I’m afraid that there is much too much going on in this thread for me to go point-by-point, so let me respond to Larry’s most salient and egregious deception:

Judge McConnell of the 10th Circuit has the same opinion that I do regarding mooting of claims for nominal damages, yet you have not called him "remarkably stupid" and a "consistent and unmitigated liar" who is "completely ignorant of the law." Why the double standard, RG?

Judge McConnell does not have the same opinion. You are citing his concurring opinion. He also wrote the binding, precedential majority opinion, in which he found that nominal damages preclude mootness. He wrote a concurring opinion to his own majority opinion to note that while he was constrained by what the law is, he thinks that it should be something else. He was not, however, able to cite any court (other, I believe, than an outdated 2nd Circuit case predating either Buckhannon or Farrar, the controlling cases) that explicitly agrees with him. He was unable to hold that that the case was mooted because it was clear to him that existing law would not allow it. He is not a liar because he is willing and able to constrain his rhetoric to an honest assessment of what the law is, and merely note that he wants it to change.

I’m sure that you, like Judge McConnell, would like to law to change to allow causes of action for nominal damages to become moot. The difference is that Judge McConnell is a professional and presumably an honest man, and explicitly wrote that he was constrained by existing law contrary to his preferred outcome. You are unable to admit that the law does not support your preferred outcome, so you invent new, imaginary law as you go along.

As an aside, Larry, the federal supplement is not just for district court opinions. That series also contains unpublished circuit court opinions. I don’t mean that as criticism; many practitioners are unaware of the contents and applications of the series. I can’t tell you how many crappy briefs I’ve seen written by pro ses and even lawyers who don’t understand citation standards.

But that raises an interesting point – the fact that parties cannot cite DCT and unpublished opinions as precedent does not mean that they cannot be cited at all. It’s not uncommon for such opinions to be discussed or even quoted at length as an example of a line of reasoning or to illustrate the procedural history of the case at hand or a related case.

Thursday, May 18, 2006 12:20:00 AM  
Anonymous Rilke's Granddaughter said...

Poor Larry. You really don't understand yourself at all, do you?

I said,
"Note that you are unable to dispute the fact that I have not requested PT to ban you or delete your posts. Why keep up the pretense?"

Larry said,
"There is no pretense -- the fact remains that you were one of the biggest causes of my problems at PT."

In other words, you cannot support your earlier claim. You simply lied, and are now lying again.

Lying is stupid, Larry. It makes you look dumb. And since it can be easily checked, why do it?

Why go out of your way to make yourself look dumb?

Why?

I said,
"It doesn't matter what happened in the first place"

Larry,
"The hell it doesn't matter what happened in the first place -- PT started it all."

Regretfully, this is yet another lie.

PT did NOT ban you. They banned a specific IP address from which several posters had posted.

Instead of behaving like an adult, like a man of sixty, you behaved like a child of five - you failed to ask any questions, you leapt to a conclusion, and then you engaged in prohibited behavior.

Thus, you banned yourself.

There really is no other possible way to put it: you banned yourself from PT because you were too stupid to ask why the IP was banned.

You banned yourself from PT because you didn't think.

And now you are lying about it. Why?

>>>>"I have no idea why you and Kevin appointed yourselves to be troll-hunting goons of PT."

We're not.<<<<<

Larry said,
"The hell you're not."

Poor Larry. Lying again. You can check PT and note that the primary commentors on your multiple posting ID were NEITHER Kevin nor myself.

Why lie, Larry? Why embarrass yourself when your statements can be checked?

>>>>>(quoting Judge McConnell) "I therefore conclude that although the issue is resolved in this Circuit, it has not been resolved by the Supreme Court or by the weight of authority nationwide."

Yup. Those don't mean what you think they mean.<<<<<

Larry said,
"It is not what I think they mean -- it is what they say they mean. I have never seen statements that were more unambiguous. You have zippo credibility, RG. ZIPPO."

I note that Colin has dismantled this one in his post above.

Please stop lying, Larry. It makes you look silly.


>>>>>"Your comments remain here only because of my no-censorship policy, which I now recognize as being too generous but I am obligated to stick to it."

And the policy you have is an admirable one; it's about the only thing you do that is wholly ethical and admirable.<<<<<

Larry said,
"Then why doesn't PT have a similar "ethical and admirable" policy?"

Because PT gets a lot of traffic, and they need to keep the posts focused. Because PT has a reputation for sound scholarship.

You don't get a lot of traffic. You have no reputation for honesty or intellectual integrity. You have noticed, I presume, that the only people who post here are the ones who find it amusing or interesting to point out that

EVERY SINGLE THING YOU SAY IS WRONG.

You should keep that in mind, Larry.

>>>>>I'm here because I'm trying to figure out WHY you do the stupid things you do.<<<<<

Larry said,
"You are wasting your time. Someone who cannot understand Judge McConnell's clear statements will never figure out anything."

Well, since you continually fail to explain why you do stupid, dishonest, malicious things that make you look like an idiot in public, you may have a point.

Thursday, May 18, 2006 5:57:00 AM  
Blogger Larry Fafarman said...

Colin said ( 5/18/2006 12:20:51 AM ) --

>>>>>>Judge McConnell of the 10th Circuit has the same opinion that I do regarding mooting of claims for nominal damages, yet you have not called him "remarkably stupid" and a "consistent and unmitigated liar" who is "completely ignorant of the law." Why the double standard, RG?

Judge McConnell does not have the same opinion. You are citing his concurring opinion.<<<<<<

It doesn't matter what his opinion is called -- what matters is what he said. He came out squarely against the idea that a nominal damages claim is sufficient to prevent mootness -- and he showed that the courts are not consistent on the issue. By your and RG's standards, the mere fact that he disapproved of what you consider to be the accepted rule is sufficient reason to call him a stupid, dishonest ignoramus. Justice Scalia's scathing denunciation of the Lemon test was also made in a "concurring" opinion (see post titled, "Aptly named 'Lemon test' sucks").

>>>>>He was not, however, able to cite any court (other, I believe, than an outdated 2nd Circuit case predating either Buckhannon or Farrar, the controlling cases) that explicitly agrees with him. <<<<<<

I wish that he had cited more cases. He said that the 7th circuit has suggested, but not held, that a claim for nominal damages is insufficient to prevent mootness. He said that "other" circuits have held that "cases are not moot where there are claims for both nominal and compensatory or punitive damages" -- this implies that nominal damages alone are insufficient. He said that only the 6th and 9th circuits solidly agree with the 10th circuit on this issue. And the 2nd circuit's 1973 opinion is significant because it shows that a court has accepted the idea that nominal damages alone are insufficient to prevent mootness, so the idea is not as farfetched as you pretend (actually, it is the opposite idea that is farfetched).

BTW, even the majority opinion voiced an objection: " It may seem odd that a complaint for nominal damages could satisfy Article III's case or controversy requirements, when a functionally identical claim for declaratory relief will not. But this Court has squarely so held." But the court goes on to say that there also existed a claim for declaratory relief -- "under our precedents this panel is required to determine on the merits whether Defendant's past conduct and no-longer-operative Ordinance comported with the First Amendment."

See Utah Animal Rights Coalition at http://www.kscourts.org/ca10/cases/2004/06/02-4174.htm

>>>>You are unable to admit that the law does not support your preferred outcome, so you invent new, imaginary law as you go along <<<<<

I have conceded that there is controversy and inconsistency on the issue. So far you have conceded nothing, and according to the evidence available, you are wrong.

>>>>>As an aside, Larry, the federal supplement is not just for district court opinions. That series also contains unpublished circuit court opinions.<<<<<<

If an opinion is published in the federal supplement, how can that opinion be considered to be unpublished?

>>>>>But that raises an interesting point – the fact that parties cannot cite DCT and unpublished opinions as precedent does not mean that they cannot be cited at all.<<<<<

Only partly true in the federal courts. http://www.law.com/jsp/article.jsp?id=1144845716431 says "The U.S. Courts of Appeals for the 2nd, 7th, 9th, and federal circuits ban the citation of unpublished opinions outright, while six other circuits discourage it." However, it appears that this is about to change -- the Supreme Court recently approved a new national rule allowing citation of unpublished opinions in all federal courts. The preceding webpage says, "Under the new rule, circuits will still be able to give varying precedential weight to unpublished opinions, but they can no longer keep lawyers from citing them."

===========================

Response to a comment in another thread -- see http://im-from-missouri.blogspot.com/2006/05/two-timing-new-members-of-dover-school.html#c114793821998371486

>>>>As far as I can tell, you think that any decision that a plaintiff’s rights were violated is “declaratory relief.” But that is not correct. You don’t understand what “declaratory relief” means.<<<<<

A declaratory judgment or relief is one that neither requires that something be done nor awards damages. If a judgment that a plaintiff's rights were violated is not such a kind of judgment, then what kind of judgment is it?

>>>>>The Supreme Court understands the law better than laypeople, including Larry Fafarman.<<<<<

The Supreme Court does not and cannot see every possible interpretation. Also, the court is frequently under pressure to revisit issues that are believed to be settled -- good examples are abortion and reverse discrimination.

>>>>> If you feel compelled to quibble with that, then you have more severe problems than mere ignorance: you should consult a mental health professional.<<<<

That trite statement is a sure sign of your desperation.

>>>>>I wonder where you got this contempt for children -- they are often smarter than we think.

I don’t have contempt for children. But when I need to explore the intricacies of civil procedure, I consult trained adults.<<<<<

I am afraid that you missed the point of the story, "The Emperor's New Suit," by Hans Christian Andersen. The emperor did consult "trained" adults about the wonderful qualities of his non-existent new clothes. Here are some excerpts from the story --http://hca.gilead.org.il/emperor.html

One day two swindlers came to this city; they made people believe that they were weavers, and declared they could manufacture the finest cloth to be imagined. Their colours and patterns, they said, were not only exceptionally beautiful, but the clothes made of their material possessed the wonderful quality of being invisible to any man who was unfit for his office or unpardonably stupid.

The good old minister went into the room where the swindlers sat before the empty looms. “Heaven preserve us!” he thought, and opened his eyes wide, “I cannot see anything at all,” but he did not say so. Both swindlers requested him to come near, and asked him if he did not admire the exquisite pattern and the beautiful colours, pointing to the empty looms. The poor old minister tried his very best, but he could see nothing, for there was nothing to be seen. “Oh dear,” he thought, “can I be so stupid? I should never have thought so, and nobody must know it! Is it possible that I am not fit for my office? No, no, I cannot say that I was unable to see the cloth.”


This all sounds very familiar. The "swindlers" are like Darwinists trying to "educate" the "ignorant."

You are not a true professional but are just a tradesman who blindly follows rules in a handbook. No litigants who know the truth about you would permit you to represent them -- even for free. You should get the hell out of law and find another line of work.

Finally, I need to add the standard disclaimer: No Monday-morning argument can excuse the failure of the board to repeal the ID policy in December.

=================================

It is a maxim among.....lawyers, that whatever has been done before may legally be done again; and therefore they take special care to record all the decisions formerly made against common justice and the general reason of mankind. These, under the name of precedents, they produce as authorities, to justify the most iniquitous opinions; and the judges never fail of directing accordingly. -- Jonathan Swift

Thursday, May 18, 2006 8:25:00 AM  
Blogger Colin said...

It doesn't matter what his opinion is called -- what matters is what he said. He came out squarely against the idea that a nominal damages claim is sufficient to prevent mootness -- and he showed that the courts are not consistent on the issue. By your and RG's standards, the mere fact that he disapproved of what you consider to be the accepted rule is sufficient reason to call him a stupid, dishonest ignoramus. Justice Scalia's scathing denunciation of the Lemon test was also made in a "concurring" opinion (see post titled, "Aptly named 'Lemon test' sucks").

The fact that you don’t understand the difference between the opinions does not mean that there is no difference. The majority opinion, which resolved the case and is binding in the 10th Circuit, held:

“It may seem odd that a complaint for nominal damages could satisfy Article III's case or controversy requirements, when a functionally identical claim for declaratory relief will not. But this Court has squarely so held. Comm. for the First Amendment v. Campbell, 962 F.2d 1517, 1526 (10th Cir. 1992) (finding that while adoption of a new policy mooted claims for injunctive relief, "the district court erred in dismissing the nominal damages claim which relates to past (not future) conduct") (emphasis in original); O'Connor v. City & County of Denver, 894 F.2d 1210, 1215-16 (10th Cir. 1990) (same). Thus, although the conduct at issue is long past and will not be repeated, the Ordinance under challenge has been amended to correct its alleged constitutional flaw, and Plaintiff concedes that it suffered no compensable injury, under our precedents this panel is required to determine on the merits whether Defendant's past conduct and no-longer-operative Ordinance comported with the First Amendment.” (emphasis added)

McConnell’s majority opinion holds that the nominal damages complaint satisfies the “case and controversy requirements” of Article III, which means that the case cannot be moot—mootness essentially means that there is no case or controversy for the court to address. McConnell even explains his concurring opinion: “The author of this opinion has written a concurring opinion suggesting that this Court's precedents holding that claims for nominal damages are not moot should be overruled, or corrected by the Supreme Court.” (emphasis added)

He is primarily talking about the 10th Circuit’s precedent, but I note that he cannot cite any case post Farrar that agrees with him. The best support he can muster is that “Second Circuit panels appear to have taken inconsistent positions on the issue,” and that the Seventh Circuit has “has suggested, but not held, that a claim for nominal damages is insufficient to avoid mootness.” (emphasis added) Both the Second and Seventh Circuit cases he cites are from the 1970s, well before the Supreme Court defined the boundaries of this issue in Farrar, Buckhannon, and Arizonans.

I wish that he had cited more cases.

I’m sure that you do. It would be great for your argument if cases supporting existed. But they don’t, do they? That’s a pity: it suggests that you’re seriously in error. Imagine that.

He said that the 7th circuit has suggested, but not held, that a claim for nominal damages is insufficient to prevent mootness.

They haven’t held it for a reason, Larry... it’s not the law. Moreover, I cannot find any language in that case that suggests that what McConnell says that that it does. The defendants apparently argued that the case could be mooted despite nominal damages claimed, and the court noted that the question was irrelevant because the plaintiffs claimed significant compensatory damages in the amount of $7000 (in 1978 dollars, no less). And being from 1978, this case significantly predates the Supreme Court’s precedent on the matter.

“He said that "other" circuits have held that "cases are not moot where there are claims for both nominal and compensatory or punitive damages" -- this implies that nominal damages alone are insufficient.”

It might imply it in those circuits, emphatically not including the Third Circuit, if those cases were anything like current. Again, the Supreme Court has ruled on this issue more recently than the 30-year-old cases McConnell cites. Read the second concurring opinion for the other judge’s analysis of the Court’s jurisprudence.

And the 2nd circuit's 1973 opinion is significant because it shows that a court has accepted the idea that nominal damages alone are insufficient to prevent mootness, so the idea is not as farfetched as you pretend (actually, it is the opposite idea that is farfetched).

The 2nd Circuit’s decision is outdated and probably irrelevant, as it does not deal (as Kitzmiller did) with an unconstitutional policy. There is an 11th Circuit case that discusses this, but I will spare you the citation until I can find a non-Westlaw source where you can read it (or pretend to). And as for the idea that nominal damages cannot be mooted, that is not “farfetched” - it is the law. McConnell acknowledges this, why can’t you? Read his majority opinion, or Judge Henry’s concurrence: “In conclusion, I believe that the Supreme Court has directly and indirectly indicated that a claim for nominal damages in a constitutional case may vindicate rights that should be scrupulously observed, and hence, such a case is not, nor should it be, moot.”

But the court goes on to say that there also existed a claim for declaratory relief -- "under our precedents this panel is required to determine on the merits whether Defendant's past conduct and no-longer-operative Ordinance comported with the First Amendment."

Larry, you idiot, I keep telling you that you do not understand what declaratory relief means. Really, read a book or a website or something. This is just sad. Here is a place for you to begin your journey of self-education: The declaratory relief claim in that case was moot: “Accordingly, the district court was correct to grant summary judgment to the City on UARC's facial challenge to Section 3.50 insofar as UARC sought declaratory and injunctive relief.” The panel is explicitly saying that the claim for declaratory relief may be mooted, but the claim for nominal damages may not: "It may seem odd that a complaint for nominal damages could satisfy Article III's case or controversy requirements, when a functionally identical claim for declaratory relief will not. But this Court has squarely so held."

You can copy and paste this language, so why can’t you read it?

I have conceded that there is controversy and inconsistency on the issue. So far you have conceded nothing, and according to the evidence available, you are wrong.

But there isn’t any controversy. No court in thirty years has held that nominal damages can be mooted, and the Supreme Court has recently held that they cannot. You have one judge who argues that the law should change, but who acknowledges that it is presently clear that nominal damages preclude mootness. Just like “teach the controversy,” you want to argue that the fact that you keep yammering constitutes evidence of a valid controversy. It doesn’t.

If an opinion is published in the federal supplement, how can that opinion be considered to be unpublished?

This is a stellar example of how ignorant you are. You just don’t understand the professional terminology, and don’t make any effort to learn. Essentially, “published” status means that it is citeable as precedent, not that it is available in a book somewhere. It’s an archaic and unhelpful term, I admit.

I have to run. I’ll respond to the rest later.

Thursday, May 18, 2006 10:01:00 AM  
Blogger Larry Fafarman said...

Rilke's Granddaughter said --

>>>>In other words, you cannot support your earlier claim. You simply lied, and are now lying again.<<<<<

The first time was a half-truth. The second time was a clarification. And you found nothing specifically wrong with the clarification.

>>>>>PT did NOT ban you. They banned a specific IP address from which several posters had posted.<<<<<<

What other blog goes around cutting off whole groups of commenters?

>>>>>There really is no other possible way to put it: you banned yourself from PT because you were too stupid to ask why the IP was banned.<<<<<<

PT was obviously glad to get rid of me. They did not bother to tell me that a mistake had been made.

>>>>You can check PT and note that the primary commentors on your multiple posting ID were NEITHER Kevin nor myself.<<<<<<

Wrong. You and Kevin were the worst -- by far.

>>>>>(quoting Judge McConnell) "I therefore conclude that although the issue is resolved in this Circuit, it has not been resolved by the Supreme Court or by the weight of authority nationwide."

I note that Colin has dismantled this one in his post above.<<<<<<

Right. Colin dismantled what the judge said. RG, you don't know whether you are coming or going.

>>>>>Larry said -- Your comments remain here only because of my no-censorship policy, which I now recognize as being too generous but I am obligated to stick to it."

RG said --- And the policy you have is an admirable one; it's about the only thing you do that is wholly ethical and admirable.

Larry said -- Then why doesn't PT have a similar "ethical and admirable" policy?

RG said -- Because PT gets a lot of traffic, and they need to keep the posts focused. Because PT has a reputation for sound scholarship.<<<<<

No, PT doesn't care about keeping the posts focused. PT accepts a lot of off-topic posts from favored commenters, including you.

As for sound scholarship: Herr Fuhrer Elsberry banned further discussion of my idea that the Ohio Board of Education should have heard public comments before -- not after -- voting on the evolution lesson plan. His reason? He was not aware of any complaints from the Ohio public commenters. What a jerk. There is no real debate going on at PT. PT is just a place where Darwinists go to scratch each other's backs.

>>>>You don't get a lot of traffic.<<<<<

For a new blog by a relatively unknown person, this blog has gotten a hell of a lot of traffic.

>>>>>You have no reputation for honesty or intellectual integrity. You have noticed, I presume, that the only people who post here are the ones who find it amusing or interesting to point out that.<<<<<<

Wrong. There are some serious, intelligent commenters here. You are just not one of them.

>>>>EVERY SINGLE THING YOU SAY IS WRONG.<<<<<

So why do you bother to read this blog or post comments on it?

I not only had to put up with your crap on PT, but now I have to put up with your crap on my own blog. Anyway, RG, pretty soon you will not get any responses to your meaningless drivel here. You will just be ignored.

Thursday, May 18, 2006 10:28:00 AM  
Blogger Larry Fafarman said...

Reply to Colin ( 5/18/2006 10:01:35 AM ) --

By way of review --- you have repeated over and over again the following quote that you mined like some kind of priceless gem from the Supreme Court's Buckhannon --

“And petitioners' fear of mischievous defendants only materializes in claims for equitable relief, for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.”

First, I will make the following points about the above statement --

(1) The court never said that paying or offering to pay the damages does not moot a claim for damages (I will make an exception for nominal damages because they are symbolic).

(2) The above statement only mentions "damages" and says nothing about "nominal damages." The court never addressed here the special issues associated with nominal damages, like the idea that nominal damages are just a symbolic token of vindication on some other claim. Furthermore, no kind of damages -- nominal or otherwise -- were at issue in Buckhannon (a claim for substantial damages had been withdrawn), so this is one reason why the above statement is arguably just dictum.

(3) Also mootness was not an issue in Buckhannon, either. The petitioner/plaintiff sued for an award of attorney fees, not for a reversal of the finding of mootness. This is another reason why the above statement is arguably just dictum.

Also, I went back to Farrar v. Hobby and Buckhannon to see what else the Supreme Court said in those cases.

Farrar says, "We therefore hold that a plaintiff who wins nominal damages is a prevailing party under § 1988." emphasis added

Buckhannon says, Our “[r]espect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail.” Hewitt v. Helms, 482 U.S. 755, 760 (1987). We have held that even an award of nominal damages suffices under this test. See Farrar v. Hobby, 506 U.S. 103 (1992). (emphasis added)

Note that in both of the two preceding statements, the Supreme Court discussed nominal damages just in regard to "prevailing party" status, and not in regard to mootness. Judge McConnell, in his "concurring" opinion in Utah Animal Rights Coalition, noted this distinction --

The Supreme Court has held that nominal damages can suffice to make the plaintiff a "prevailing party" for purposes of entitlement to attorneys fees. Farrar v. Hobby, 506 U.S. at 115; Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 604 (2001). That is not inconsistent with the proposition that a claim for nominal damages can become moot. It stands only for the proposition that where nominal damages are properly awarded in a case within the court's Article III jurisdiction, the plaintiff has "prevailed" within the meaning of 42 U.S.C. § 1988.(emphasis added) See concurring opinon in http://www.kscourts.org/ca10/cases/2004/06/02-4174.htm

There is more --

(1) The Supreme Court arguably erred by not recognizing that a finding of a violation of a plaintiff's rights is a form of declaratory relief.

(2) Your 3rd Circuit precedents are not necessarily controlling, because they mention only "damages" and not specifically "nominal damages" (arguably a very special kind of damages), and because one of these precedents says "almost always" rather than "always."

>>>>>"......under our precedents this panel is required to determine on the merits whether Defendant's past conduct and no-longer-operative Ordinance comported with the First Amendment.” (your emphasis added)<<<<<

As I have already pointed out, this is a claim for declaratory relief.

>>>>>Larry, you idiot, I keep telling you that you do not understand what declaratory relief means <<<<<<

Namecalling does nothing but show your increasing desperation.

An online law dictionary defines a "declaratory judgment" as "a judgment of a court which determines the rights of parties without ordering anything be done or awarding damages." The root of the term "declaratory" is obvious -- it comes from "declare." If a judgment that the plaintiff's civil rights have been violated is not "declaratory relief," then what in hell kind of relief is it?

>>>>McConnell’s majority opinion holds that the nominal damages complaint satisfies the “case and controversy requirements” of Article III, which means that the case cannot be moot.<<<<<

Yeah, I just noticed that McConnell wrote both the majority opinion and a "concurring" opinion -- I never saw that before. Anyway, he made the above ruling only under protest, which he expressed in his concurring opinion.

>>>>McConnell even explains his concurring opinion: “The author of this opinion has written a concurring opinion suggesting that this Court's precedents holding that claims for nominal damages are not moot should be overruled, or corrected by the Supreme Court.” (your emphasis) <<<<<<)

The Supreme Court is not going to revisit Farrar and/or Buckhannon to correct the above problems unless there is an appellate opinion that challenges those two cases on the basis of these problems.

>>>>If an opinion is published in the federal supplement, how can that opinion be considered to be unpublished?

This is a stellar example of how ignorant you are. You just don’t understand the professional terminology, and don’t make any effort to learn. Essentially, “published” status means that it is citeable as precedent, not that it is available in a book somewhere.<<<<<

And your statement shows what a stupid ignoramus you are. How can the same set of volumes contain both "published" and "unpublished" opinions? Show me one federal court rule -- national, circuit, or local (preferably national, because you are speaking in general terms) -- that says that appellate opinions published in the Federal Supplement series (if there are any such opinions -- they don't belong there) are not citable. Otherwise, an appellate opinion in that series can just be cited in the normal manner, by giving the volume number and the page number(s).

===========================

Disclaimer -- nothing that is said in the current debate about mootness could possibly excuse the Dover school board's failure to repeal the ID policy in December.

Thursday, May 18, 2006 5:27:00 PM  
Blogger Colin said...

OK, back to lighting the dark places. I’ll start with Larry’s post from yesterday, then move on to today’s. Apologies to those who don’t like long posts, but then, no one is forcing you to read them.

A declaratory judgment or relief is one that neither requires that something be done nor awards damages. If a judgment that a plaintiff's rights were violated is not such a kind of judgment, then what kind of judgment is it?

Even if we assume that your definition in the first sentence is correct, your application makes no sense: an award of nominal damages, as was the case in Farrar , requires that the defendants pay the small amount of money awarded to the plaintiffs. That requirement prevents the award from being declaratory relief. Read McConnell again: he argues that ND and DR should be treated similarly, but very clearly indicates that they are not the same thing.

The Supreme Court does not and cannot see every possible interpretation. Also, the court is frequently under pressure to revisit issues that are believed to be settled -- good examples are abortion and reverse discrimination.

You’re suggesting that (A) the Court sometimes revists its holdings, so (B) it must have made a mistake in Farrar. That is a non sequitor even for you, Larry. You haven’t shown why you think they forgot what the case was about halfway through the opinion, except that you don’t want the holding to be what it is. The SC does sometimes err. It is not an incompetent club of drunkards, and it doesn’t forget what’s going on in a case halfway through an opinion. These are the finest legal minds in the country–not just the justices, but their clerks and supporting staff as well. For them to forget what happened in a case mid-opinion, or to misunderstand what “declaratory relief” means, would be like Michael Jordan forgetting that you can’t use a baseball bat in basketball games.

I am afraid that you missed the point of the story, "The Emperor's New Suit," by Hans Christian Andersen. The emperor did consult "trained" adults about the wonderful qualities of his non-existent new clothes. . . . This all sounds very familiar. The "swindlers" are like Darwinists trying to "educate" the "ignorant."

But you are ignorant, Larry. You don’t know what various forms of relief mean, you don’t know the rules of civil procedure, you don’t know how to read or comprehend a case, and you don’t make any serious attempt to learn. We have to bludgeon you over the head before you admit any possibility of error, even when it is blindingly clear that you’re wrong. And as for turning to naive laypeople instead of trained professionals... Well, try that with your taxes some year. There are a group of people who insist that they’re telling the government that the emperor has no clothes because the law doesn’t *really* require that they pay income tax. They’re called “tax protestors.” Their instincts are wrong, and they go to jail fairly frequently. Law is complex and technical and requires more than gut-level intuition. Your own lack of success in your legal endeavors might suggest to you that there is more to the law than what you think should happen.

You are not a true professional but are just a tradesman who blindly follows rules in a handbook. No litigants who know the truth about you would permit you to represent them -- even for free. You should get the hell out of law and find another line of work.

This is a somewhat ironic statement. Classically, only lawyers along with doctors and sometimes clergymen were considered “professionals.” (The technical meaning of the term now includes accountants and some would say engineers.) And the fact that I know the rules is what distinguishes me from a pro se litigant. Law is rules, Larry. Your root problem is that you believe that you can make it up as you go along. As you can see, that’s not really the case.

Finally, I need to add the standard disclaimer: No Monday-morning argument can excuse the failure of the board to repeal the ID policy in December.

You keep saying that, but you haven’t explained what you mean. You’ve said that the board erred by not trying to moot the case. We’ve shown you that the board did not err, because it could not have mooted the case no matter what it did; Judge Jones was bound by Third Circuit and Supreme Court precedent holding that the nominal damages claim precluded mootness. How does a showing that the board could not have mooted the case fail to excuse the board for not mooting the case?

=================================

By way of review --- you have repeated over and over again the following quote that you mined like some kind of priceless gem from the Supreme Court's Buckhannon --

“And petitioners' fear of mischievous defendants only materializes in claims for equitable relief, for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.”


First, I will make the following points about the above statement --

(1) The court never said that paying or offering to pay the damages does not moot a claim for damages (I will make an exception for nominal damages because they are symbolic).

The Court never said that because it is a stupid thing to argue, and no one has raised the question. A settlement offer does not moot a cause of action. Only an actual settlement can. And if the court forces the plaintiffs to accept the settlement, then it is a judicial resolution to the case and the plaintiffs would still be entitled to attorneys’ fees despite the resulting mootness.

You are making a prospective argument, Larry: that doing X would cause Y, despite your total lack of any evidence that this is true. You’re insisting that I provide evidence that X won’t actually cause Y. That’s not how this works - if you want to persuade anyone that your made-up rule of law is real, show us where it has been applied. You’ve said that the courts don’t discuss this ‘rule’ because it is so obvious. If that is true, then show us the application of the rule: a case where an offer of settlement obviated a cause of action for damages. I’ll predict that you can’t, because your ‘rule’ is just something you made up to salvage your failure to understand or acknowledge the Court’s precedent. You’re just making this up because it makes your argument sound better, but it’s not true - there is no truth to your assertion whatsoever.

(2) The above statement only mentions "damages" and says nothing about "nominal damages." The court never addressed here the special issues associated with nominal damages, like the idea that nominal damages are just a symbolic token of vindication on some other claim. Furthermore, no kind of damages -- nominal or otherwise -- were at issue in Buckhannon (a claim for substantial damages had been withdrawn), so this is one reason why the above statement is arguably just dictum.

Yes, Larry - no damages were at issue in Buckhannon. Which is why the Court asked itself, what would happen if there was a cause of action for damages? And answered, “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” This could fairly be considered to be dictum, but it is not offered as binding authority. Rather, it is a discussion and summary of binding authority: the Court is explaining the current legal rule, not setting a new one. You should acknowledge that the Court says this for a reason, and it’s not because they don’t understand the issues. Nor is there any reason why the Court would need to address the special characteristics of nominal damages, especially given its favorable citation of Farrar. Nominal damages are a form of damages, sufficient to make plaintiffs prevailing parties, and nothing in their nature exempts them from the Court’s clear explanation of the rules pertaining to damages and mootness.

(3) Also mootness was not an issue in Buckhannon, either. The petitioner/plaintiff sued for an award of attorney fees, not for a reversal of the finding of mootness. This is another reason why the above statement is arguably just dictum.

I agree that the statement is dictum. It is summarizing the law on the issue, which is binding. It says, essentially, that a cause of action for damages can only be mooted by a settlement, and if that settlement is enforced by the court, then even mootness will not preclude an award of attorneys’ fees. Since the Kitzmiller plaintiffs would not have voluntary accepted an $11 settlement in lieu of fees and a binding order, even if the case could have been mooted it would not have precluded the award of fees. Please try to keep up, Larry.

Note that in both of the two preceding statements, the Supreme Court discussed nominal damages just in regard to "prevailing party" status, and not in regard to mootness. Judge McConnell, in his "concurring" opinion in Utah Animal Rights Coalition, noted this distinction --

The Supreme Court has held that nominal damages can suffice to make the plaintiff a "prevailing party" for purposes of entitlement to attorneys fees. . . .That is not inconsistent with the proposition that a claim for nominal damages can become moot. It stands only for the proposition that where nominal damages are properly awarded in a case within the court's Article III jurisdiction, the plaintiff has "prevailed" within the meaning of 42 U.S.C. § 1988.


This is not an unreasonable argument. But it is, as McConnell puts it, an argument as to what the law should be, not what it is. Read his majority opinion, in which he clearly says that even though he would like to hold the claim mooted, he cannot, because the existing law is otherwise. Also read the Third Circuit’s precedent, binding on Judge Jones, which indicates that they do not agree with McConnell as to what the law should be. Everyone, however, agrees on what it is. A cause of action for nominal damages cannot be mooted by a defendant’s actions.

(1) The Supreme Court arguably erred by not recognizing that a finding of a violation of a plaintiff's rights is a form of declaratory relief.

The Supreme Court is arguably made up of reptile people from Pluto. Your argument is (A) a little crazy and (B) totally irrelevant. Whatever the Court might have said, what it did say is that a cause of action for damages cannot be mooted by a defendant’s changed behavior. You’re mixing up what you want the law to be, and what the law is.

(2) Your 3rd Circuit precedents are not necessarily controlling, because they mention only "damages" and not specifically "nominal damages" (arguably a very special kind of damages), and because one of these precedents says "almost always" rather than "always."

This is how precedent works, Larry. You have to read the cases, and make an honest attempt at understanding them. Jersey is the underlying case. Donovan applies it to mootness, and Doe v. Delie, 257 F.3d 309 (3rd Cir. 2001) which I quoted but forgot to cite above, shows that the Third Circuit applies Jersey to causes of action for nominal damages. Is it possible to argue that this chain isn’t airtight? Sure. But you need more than maybes and supposes. Show why the cases don’t apply.

As an aside, I do apologize for not including public links to these cases. I understand that they can be difficult to find, and that Westlaw access is a commodity not easily available to most people. But at the same time, I am not your research assistant; you keep making statements about what the law is, and then refusing to provide any support for those assertions. Do your own research.

>>>>>"......under our precedents this panel is required to determine on the merits whether Defendant's past conduct and no-longer-operative Ordinance comported with the First Amendment.” (your emphasis added)<<<<<

As I have already pointed out, this is a claim for declaratory relief.


You keep thinking that “pointed out” is a synonym for “proved”. You are wrong, Larry. Holding that conduct violated a right is not necessarily declaratory relief - if that were true, then there would be no such thing as nominal damages. Read McConnell’s opinions rather than just mining them for soundbytes; nominal damages are not just a form of declaratory relief. They have separate legal effect, in that they (A) obligate the defendants to pay the nominal damages and (B) preclude mootness.

An online law dictionary defines a "declaratory judgment" as "a judgment of a court which determines the rights of parties without ordering anything be done or awarding damages." The root of the term "declaratory" is obvious -- it comes from "declare." If a judgment that the plaintiff's civil rights have been violated is not "declaratory relief," then what in hell kind of relief is it? (emphasis added)

If the judgment requires the defendants to pay money-even $1-then it is an award of damages, not declaratory relief. We’ve gone over this before. Your own definition explicitly says “without ordering anything be done or awarding damages.” Did you not read all the way through that sentence?

Yeah, I just noticed that McConnell wrote both the majority opinion and a "concurring" opinion -- I never saw that before.

I’ve pointed this out several times. I’m not surprised that you just noticed it. As I’ve noted before, you have a real problem with reading comprehension.

Anyway, he made the above ruling only under protest, which he expressed in his concurring opinion.

Exactly. In essence, he said, “I want the law to be X, but at the present time it is Y. Here are the reasons why I think the law should change to X.” You’ve been saying all along that the board was erred by not acting in accordance with X (here, mootness of causes of action for damages). But McConnell is clearly saying that the law does not support such mootness. Read, read, read, Larry.

The Supreme Court is not going to revisit Farrar and/or Buckhannon to correct the above problems unless there is an appellate opinion that challenges those two cases on the basis of these problems.

The fact that they did not grant cert on McConnell’s case rather suggests that the Court is not interested in revisiting the issue. Nor does it matter; what matters for the purposes of addressing the board’s actions is what the law is, not what you want it to be.

And your statement shows what a stupid ignoramus you are. How can the same set of volumes contain both "published" and "unpublished" opinions? Show me one federal court rule -- national, circuit, or local (preferably national, because you are speaking in general terms) -- that says that appellate opinions published in the Federal Supplement series (if there are any such opinions -- they don't belong there) are not citable. Otherwise, an appellate opinion in that series can just be cited in the normal manner, by giving the volume number and the page number(s).

To begin, I should apologize - I was in a hurry and mixed up the Federal Supplement, which does contain DCT opinions, and the Federal Appendix, which contains unpublished appellate court orders. My statement to which you were replying (“Essentially, “published” status means that it is citeable as precedent, not that it is available in a book somewhere.”) is accurate; the Appendix is published as a book, but is technically “unpublished” and unciteable for precedential authority. “Published” for citation purposes does not mean “published in a book,” but rather, “published by the court.” The “unpublished” opinions are essentially published by West. But your confusion is partly my fault for giving you the wrong volume title. I will be more careful in the future, given how easily confused you are.

A decent overview of the various reporters and the distinction between published and unpublished cases is here.


Disclaimer -- nothing that is said in the current debate about mootness could possibly excuse the Dover school board's failure to repeal the ID policy in December.

Except, of course, the clear fact that their failure to do so could not have mooted the case or prevented the inevitable award of attorneys’ fees.

Friday, May 19, 2006 10:27:00 AM  
Blogger Larry Fafarman said...

Colin said ( 5/19/2006 10:27:21 AM ) --

Heavens, another dissertation from Colin. There is no end to them.

>>>>Apologies to those who don’t like long posts, but then, no one is forcing you to read them.<<<<<

I am not only forced to read them, but I am forced to respond to them, because if I don't respond, a lot of people will assume that I have conceded. And to some people it does not matter whether I respond or not, because they assume that I have lost the debate even before I say anything. To make matters worse, I have to keep endlessly repeating rebuttals that I thought were conclusive. Furthermore --- and this is the most important thing -- unlike you I do not get to post my comments on Panda's Thumb, which gets far more Internet traffic than this blog. Because the opposition is censored, the drivel on PT and Dispatches from the Culture Wars goes unrebutted and people there congratulate each other for easily winning the debate.

>>>>>A declaratory judgment or relief is one that neither requires that something be done nor awards damages.
Even if we assume that your definition in the first sentence is correct, your application makes no sense: an award of nominal damages, as was the case in Farrar , requires that the defendants pay the small amount of money awarded to the plaintiffs<<<<<

I was talking about declaratory judgments and you change the subject by talking about nominal damages.

>>>>>The Supreme Court does not and cannot see every possible interpretation. Also, the court is frequently under pressure to revisit issues that are believed to be settled -- good examples are abortion and reverse discrimination.
You’re suggesting that (A) the Court sometimes revists its holdings, so (B) it must have made a mistake in Farrar.<<<<<<

As for (A), you know better than that. The Supreme Court has revisited Roe v. Wade at least three times and Bakke at least once. Brown v. Board of Education revisited Plessy v. Ferguson after nearly 60 years.

As for (B), Supreme Court justices and their staffs are human. They make mistakes just like everyone else.

>>>>>These are the finest legal minds in the country–not just the justices, but their clerks and supporting staff as well.<<<<<

Not necessarily. A lot of Supreme Court justices are appointed for political reasons. Often these justices are less qualified than many of the judges of lower courts -- for example, some Supreme Court justices have started out with no or little judicial experience.

>>>>>The SC does sometimes err.<<<<<

Thanks for conceding that.

>>>>>We have to bludgeon you over the head before you admit any possibility of error, even when it is blindingly clear that you’re wrong.<<<<<

I long ago changed my position by accepting that the judicial record on the issue of whether a claim for nominal damages is sufficient to prevent mootness is ambiguous, inconsistent, non-committal, and generally controversial. You have never conceded that despite overwhelming evidence.

>>>>>Your own lack of success in your legal endeavors might suggest to you that there is more to the law than what you think should happen.<<<<<

I will admit that I have not been successful outside of small claims courts -- but the main reason for that is that I have chosen cases that were basically unwinnable, at least not without a lot of public support behind them (despite what you want to believe, public support is often critical in many lawsuits). For example, I insisted on suing over California's "smog impact fee" in the federal courts -- even though the law technically says that I must sue in the state courts -- because I was pissed off that California imposed a grossly unconstitutional tax by abusing its unique position in federal auto emissions regulations. I lost my suit against Los Angeles County because some unscrupulous public officials had strung me along until after the statute of limitations expired, and it did me no good to argue that the statute of limitations should have been tolled because of those officials' procrastination. And no attorney would argue in court -- like you are arguing here -- that opposing arguments should be ignored because the opposing attorney has not had a high rate of success. Since you are an attorney (supposedly), I wonder where you got these crazy ideas.

Also, I have been told that judges are prejudiced against pro se litigants, and I can believe it. For example, the county's attorney repeatedly claimed that I had failed to give the county a required notice of intent to sue, and I had to repeatedly point out that this requirement applied only to suits for money, which mine was not. Yet the judge never admonished the attorney for repeatedly making a frivolous defense.

Unless you have actually tried to litigate as a pro se litigant, don't pretend that you know anything about the problems that pro se litigants face.

>>>>>the fact that I know the rules is what distinguishes me from a pro se litigant.<<<<<

A pro se litigant has the advantage of having fewer pre-conceived ideas, so is more likely to look for novel interpretations of the law. For example, on another blog, I made a novel but literal interpretation of Rule 12 of the Federal Rules of Civil Procedure, but my interpretation was ridiculed --- and my attempts to defend it were censored -- because of a pre-conceived idea that the rule was not intended to be used in that way. I remember a Supreme Court ruling -- I wish I could get the citation -- that a person trying to use a law to benefit himself need not show that the law was intended to benefit him. A classic example is the misuse of the 14th amendment -- originally intended to give citizenship to American-born blacks -- to give citizenship to so-called "anchor babies" of illegal aliens.

I was always looking for new ideas to add to my bag of tricks. For example, one of my favorites is, "The cardinal rule is that repeals by implication are not favored.....the intention of the legislature to repeal must be clear and manifest." Posadas v. National City Bank of New York, 296 U.S. 497 (1936). We have all seen laws begin with the words, "Notwithstanding any other provision of law," -- it is just a lame attempt to get around this "cardinal rule." A legislature should identify exactly what existing laws -- if any -- are superseded by a new law.

>>>>>We’ve shown you that the board did not err, because it could not have mooted the case no matter what it did; Judge Jones was bound by Third Circuit and Supreme Court precedent holding that the nominal damages claim precluded mootness.<<<<<<

No, you have not shown me. What I have shown you repeatedly is that 3rd Circuit and Supreme Court precedents on this issue are ambiguous, inconsistent, and non-committal.

>>>>>How does a showing that the board could not have mooted the case fail to excuse the board for not mooting the case?<<<<<<

Three reasons -- (1) these Monday-morning arguments were not a factor in the board's decision; (2) it cannot be shown with 100 percent certainty that the board could not have mooted the case, and the benefit of the doubt was on the side of trying to moot the case; and (3) the new board members had promised to repeal the ID policy anyway and should have done so at the earliest possible opportunity.

>>>>>(citing Buckhannon) -- “for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case.” This could fairly be considered to be dictum, but it is not offered as binding authority.<<<<<

But you have offered it as binding authority. It is the only Supreme Court citation you have made that appears to support your position, and now you admit that it is not binding authority. The Buckhannon opinion said nothing about the application of the above statement to nominal damages, which I assert are a very special kind of damages. And I quoted statements in Buckhannon and Farrar that discussed nominal damages in terms of "prevailing party" status rather than mootness.

BTW, here are some online definitions that I found for nominal damages --

a small amount of money awarded to a plaintiff in a lawsuit to show he/she was right but suffered no substantial harm.

: damages awarded in a small amount (as one dollar) in cases in which a party has been injured but no loss resulted from the injury or in which the injured party failed to prove that loss resulted from the injury

A term used when a judge or jury finds in favor of one party to a lawsuit--often because a law requires them to do so--but concludes that no real harm was done and therefore awards a very small amount of money.

nominal damages are very small damages awarded to show that the loss or harm suffered was technical rather than actual.


Actually, I disagree with all these definitions because they all say that there was no substantial injury or that there is no proof that the defendant's conduct caused the substantial injury or something like that. I assert that nominal damages are often the only damages awarded where there is proof that the defendant caused substantial injury but the injury is intangible, uncertain, irreversible, or irremediable, or where the defendant has immunity, cannot afford to pay substantial damages, etc.. Nominal damages might even be in addition to actual or punitive damages. I prefer my simple definition of nominal damages: a trivial amount of money awarded to a party as a symbolic token of vindication on some other claim. I am a strong believer in the K.I.S.S. (Keep It Simple, Stupid) principle. When those qualifiers are added (e.g., the party has not suffered actual or substantial harm), it makes things even more complicated than nominal damages have already made them.

>>>>>>(1) The court never said that paying or offering to pay the damages does not moot a claim for damages (I will make an exception for nominal damages because they are symbolic).
The Court never said that because it is a stupid thing to argue, and no one has raised the question. A settlement offer does not moot a cause of action. Only an actual settlement can.<<<<<<

I disagree. It is not a stupid question. And I assert that FRCP Rule 12 permits a judge to dismiss a case if the plaintiff refuses to accept a full out-of-court settlement. I will show this later.

>>>>>Yeah, I just noticed that McConnell wrote both the majority opinion and a "concurring" opinion -- I never saw that before.
I’ve pointed this out several times. I’m not surprised that you just noticed it.<<<<<<

Yes, but you did not point it out clearly. You just assumed that I was already aware of it.

>>>>>Also read the Third Circuit’s precedent, binding on Judge Jones, which indicates that they do not agree with McConnell as to what the law should be. Everyone, however, agrees on what it is<<<<<<

I have already pointed out why the 3rd circuit precedents do not apply -- they don't discuss nominal damages in particular and one precedent says "almost always" instead of "always." I still assert that nominal damages are awarded only in conjunction with awards of other claims, and that a nominal-damages claim is therefore moot if all other claims are moot, the precedents of some courts notwithstanding.

>>>>>But McConnell is clearly saying that the law does not support such mootness. <<<<<

Yes -- in the 10th circuit, and also the 6th and 9th circuits.

>>>>>The Supreme Court is not going to revisit Farrar and/or Buckhannon to correct the above problems unless there is an appellate opinion that challenges those two cases on the basis of these problems.
The fact that they did not grant cert on McConnell’s case rather suggests that the Court is not interested in revisiting the issue<<<<<

Was the case even appealed to the Supreme Court? Do you know? Anyway, cert is granted in only a tiny fraction of cases appealed to the SC -- see http://library.findlaw.com/1999/Jan/1/241457.html Denial of cert does not necessarily mean that the Supreme Court is not interested in the subject. The preceding webpage gives detailed advice about filing appeals with the Supreme Court, including factors that the court considers when deciding whether to grant cert.

>>>>>To begin, I should apologize - I was in a hurry and mixed up the Federal Supplement, which does contain DCT opinions, and the Federal Appendix, which contains unpublished appellate court orders........ But your confusion is partly my fault for giving you the wrong volume title. I will be more careful in the future, given how easily confused you are.<<<<<<

Some "apology" -- it was your error but in your so-called "apology" you accuse me of being "easily confused." I was not confused -- I had my facts straight. You did not. Anyway, it was just an innocent error on your part.

You keep calling me ignorant of the law, yet you know very well that most laypeople are not capable of discussing the law at the level that I have discussed it.

>>>>>A decent overview of the various reporters and the distinction between published and unpublished cases is here.<<<<<<<

Thanks for the info -- it was interesting and informative. I never heard of Lexis -- I thought that all "published" opinions were published by Westlaw. It would have helped the less-informed readers if the article had contained examples of citations and given abbreviations.

For various reasons, I think that the pending new national rule allowing citation of unpublished opinions in all federal courts is stupid.

I used to use the L.A. County Law Library in the Los Angeles Civic Center. That place is enormous. It seems they had everything. It is difficult to describe.

I had to learn everything by doing. I think that there ought to be high school and college courses on pro se litigation, particularly in how to sue the government. Otherwise people will just continue to be at the mercy of attorneys, judges, assorted bigshots, and the government. The reason why those courses are not offered is, of course, because of opposition from attorneys who do not want to lose their lucrative monopoly. A lot of cases are argued with briefs, so it is often not necessary to have a ready familiarity with the law -- there is plenty of time to research answers to questions.

Whew -- I have accused you of posting "dissertations" -- but look at me ! Well, at least I don't do it regularly, unlike you.

Saturday, May 20, 2006 3:22:00 AM  
Blogger Colin said...

Heavens, another dissertation from Colin. There is no end to them.

Gosh, Larry, I’m sorry to make you read so much… but to be fair, you do need the practice.

[The] drivel on PT and Dispatches from the Culture Wars goes unrebutted and people there congratulate each other for easily winning the debate.

It’s not easy. It’s a constant struggle against the champions of ignorance and deceit. But it’s an honorable vocation, so we persist.

>>>>>A declaratory judgment or relief is one that neither requires that something be done nor awards damages.
Even if we assume that your definition in the first sentence is correct, your application makes no sense: an award of nominal damages, as was the case in Farrar , requires that the defendants pay the small amount of money awarded to the plaintiffs<<<<<

I was talking about declaratory judgments and you change the subject by talking about nominal damages.


No, moron. You were talking about declaratory judgments. I was pointing out that there was no declaratory relief in Farrar, and that your belief that there was such is based on your inability to understand what “declaratory relief” is. By your own definition, an award of damages is not an award of declaratory relief. Pay attention, please.

>>>>> You’re suggesting that (A) the Court sometimes revists its holdings, so (B) it must have made a mistake in Farrar.<<<<<<

As for (A), you know better than that. The Supreme Court has revisited Roe v. Wade at least three times and Bakke at least once. Brown v. Board of Education revisited Plessy v. Ferguson after nearly 60 years.

As for (B), Supreme Court justices and their staffs are human. They make mistakes just like everyone else.


I agree that the Court revisits is precedent, and did not imply otherwise. But your argument that the Court erred—based in nothing more than your instinctive dislike of the law as it applies in this case—is just dumb. The Court does make mistakes. It did not make one here, and you haven’t shown how it might have. Nor does it matter; the board made its decision based on what the law is, not what Larry wants the law to become.

>>>>>These are the finest legal minds in the country–not just the justices, but their clerks and supporting staff as well.<<<<<

Not necessarily. A lot of Supreme Court justices are appointed for political reasons. Often these justices are less qualified than many of the judges of lower courts -- for example, some Supreme Court justices have started out with no or little judicial experience.


Can you point to a single unqualified justice on the Buckhannon or Farrar courts? You can’t. The appointments have a political dimension, but an absolute minimum qualification is an absolutely stellar background. That, of course, is why Harriet Miers didn’t make the court. And of course the justices are practicing the highest level of law every day; they are, by virtue of their experience on the court, the most influential and experienced constitutional law experts in the country. Larry, on the other hand, filed a lawsuit once. Can you guess how that balancing test is going to come out?

I long ago changed my position by accepting that the judicial record on the issue of whether a claim for nominal damages is sufficient to prevent mootness is ambiguous, inconsistent, non-committal, and generally controversial. You have never conceded that despite overwhelming evidence.

You haven’t presented any evidence, Larry. I gave you a judge’s opinion on how the law should change, and you’re holding it up like a telegram from God reading, “LARRY IS RIGHT, GUYS. SORRY. –G” The law just doesn’t support your arguments. You can make a decent (if unpersuasive to me) argument that the law should change, which is what McConnell did. But the board made its decision based on what the law is, and what the law is, Larry, is not in your favor.

>>>>>Your own lack of success in your legal endeavors might suggest to you that there is more to the law than what you think should happen.<<<<<

[skipping Larry’s legal history] And no attorney would argue in court -- like you are arguing here -- that opposing arguments should be ignored because the opposing attorney has not had a high rate of success. Since you are an attorney (supposedly), I wonder where you got these crazy ideas.

No attorney should advise his clients to press a legal issue with no chance of success or of changing the law, which was plainly the prospect of mootness in Kitzmiller. It’s a waste of the client’s time and money, and of the court’s resources. I got that gem, along with the rest of my ideas about law, at Harvard Law School, class of ’04.

Also, I have been told that judges are prejudiced against pro se litigants, and I can believe it. [skipping Larry’s legal history] . . . Unless you have actually tried to litigate as a pro se litigant, don't pretend that you know anything about the problems that pro se litigants face.

I know quite a bit about pro ses. I review their appellate briefs as part of my work. Some of their briefs are quite good; I’ve seen prisoners make arguments in pencil on notebook paper that were rough but accurate and successful. Most are quite bad, because law is hard. There’s a reason you hire people who went to law school.

A pro se litigant has the advantage of having fewer pre-conceived ideas, so is more likely to look for novel interpretations of the law.

My mechanic has fewer pre-conceived ideas about the federal tax code than my accountant. If I want an opinion about what the code should be, I might ask my mechanic for a fresh perspective. But if I want to find out what the code says, I’ll ask the damned accountant. Ignorance is not a virtue.

For example, on another blog, I made a novel but literal interpretation of Rule 12 of the Federal Rules of Civil Procedure, but my interpretation was ridiculed --- and my attempts to defend it were censored -- because of a pre-conceived idea that the rule was not intended to be used in that way. I remember a Supreme Court ruling -- I wish I could get the citation -- that a person trying to use a law to benefit himself need not show that the law was intended to benefit him. A classic example is the misuse of the 14th amendment -- originally intended to give citizenship to American-born blacks -- to give citizenship to so-called "anchor babies" of illegal aliens.

Are those sentences supposed to be related to each other? “I have some ideas about Rule 12 (governing the timing of motions). The SC ruled that a person doesn’t need to demonstrate that a law was written on his behalf. Original interpretation shows that the 14th Amendment doesn’t allow anchor babies.”

There’s only one thing to say in response to such a stream of non sequitors: Vanilla monkey paper sky.

We have all seen laws begin with the words, "Notwithstanding any other provision of law," -- it is just a lame attempt to get around this "cardinal rule." A legislature should identify exactly what existing laws -- if any -- are superseded by a new law.

So what?

No, you have not shown me. What I have shown you repeatedly is that 3rd Circuit and Supreme Court precedents on this issue are ambiguous, inconsistent, and non-committal.

You haven’t even tried to address the 3rd Circuit precedent, nor can you show me any reason other than McConnell’s concurrence why the SC precedent might be seen as inconsistent. And, again, even McConnell thought it was consistent enough to be binding – his consent is an argument for change.

Three reasons -- (1) these Monday-morning arguments were not a factor in the board's decision; (2) it cannot be shown with 100 percent certainty that the board could not have mooted the case, and the benefit of the doubt was on the side of trying to moot the case; and (3) the new board members had promised to repeal the ID policy anyway and should have done so at the earliest possible opportunity.

(1) I don’t know or care whether the board knew that it was doing the right thing; all that interests me is that they were right not to believe that the case was mootable; (2) The benefit of the doubt is not on the side of the party trying to moot the case, and it is absolutely certain that their efforts would have failed; (3) Everyone else seems to think that the board didn’t have a reasonable opportunity before the decision was handed down. Before you freak out, remember that I don’t care. I’m only interested in preventing you from using your blog as a platform for ridiculous lies about the law. Whether the board were big meanies or not is utterly irrelevant to me.

The Buckhannon opinion said nothing about the application of the above statement to nominal damages, which I assert are a very special kind of damages.

The Court says that for a reason, Larry. And you have done nothing to show that their interpretation of the law is incorrect. Except, of course, for saying that the Court is forgetful and incompetent. Which is actually as good as your arguments get.

I prefer my simple definition of nominal damages: a trivial amount of money awarded to a party as a symbolic token of vindication on some other claim.

So you’ve decided that all the real definitions are inferior to the one you just invented, which adds a substantive and incorrect element – that ND are awarded contingent to some other claim. ND can be awarded on their own cause of action, Larry, or in lieu of compensatory damages requested. We’ve gone over this. I keep asking you to back your idea of what ND are, and this is the best that you’ve done – your own definition, contrary to all the real definitions that you could find.

And I assert that FRCP Rule 12 permits a judge to dismiss a case if the plaintiff refuses to accept a full out-of-court settlement. I will show this later.

I’ll address it when you do. But that’s going to be one hell of an argument, given that Rule 12 governs motions and judgments on the pleadings.

I have already pointed out why the 3rd circuit precedents do not apply -- they don't discuss nominal damages in particular and one precedent says "almost always" instead of "always."

I don’t know how to respond to this; where does the discussion go when you just start ignoring the cases? They do discuss nominal damages. You have to read those cases, Larry – this isn’t a sound-bytable argument, because the cases play off of each other. And “almost always” doesn’t make any difference; we know at least one instance in which a claim for ND can be mooted – a settlement, either voluntary or court-ordered (the difference being that a court-ordered settlement will support an award of fees despite mootness).

I still assert that nominal damages are awarded only in conjunction with awards of other claims, and that a nominal-damages claim is therefore moot if all other claims are moot, the precedents of some courts notwithstanding.

Shorter Larry: “I assert neither X nor Y are true, despite the fact that courts have ruled that both are true and I can find no court, treatise, or article anywhere that supports my position.” Do you understand why you aren’t persuading anyone, Larry?

>>>>>But McConnell is clearly saying that the law does not support such mootness. <<<<<

Yes -- in the 10th circuit, and also the 6th and 9th circuits.


Which is one reason why we look to the 3rd Circuit to interpret its own law. Please read those cases.

The fact that they did not grant cert on McConnell’s case rather suggests that the Court is not interested in revisiting the issue<<<<<

Was the case even appealed to the Supreme Court? Do you know?


I don’t. I would bet that it was, because almost all cases that go so far are, but I don’t know for certain. I will check on Monday when I have Westlaw access again.

Some "apology" -- it was your error but in your so-called "apology" you accuse me of being "easily confused." I was not confused -- I had my facts straight. You did not. Anyway, it was just an innocent error on your part.

That’s true, it was a snarky apology. I’m not especially sorry for that. And you didn’t, in fact, have your facts straight: “Unpublished” cases, for the purposes of citeability, are in fact published in book and reporter form. But again, that’s esoteric trivia and totally irrelevant to the discussion. You actually have a decent understanding of citeability for a layperson; I think you’ve already mentioned the upcoming rule changes that will make all orders citeable. Most judges, by the way, are unhappy about that.

You keep calling me ignorant of the law, yet you know very well that most laypeople are not capable of discussing the law at the level that I have discussed it.

No, I wouldn’t say that. You have a decent store of legal trivia. You can hunt down and sling around a sound byte. But you don’t understand the issues, nor do you try to. You establish your position then argue that it must be true despite all evidence to the contrary: “I still assert that nominal damages are awarded only in conjunction with awards of other claims, and that a nominal-damages claim is therefore moot if all other claims are moot, the precedents of some courts notwithstanding.” That’s not good argument, even for a layperson. It’s the defense of fantasy against encroaching reality.


Thanks for the info -- it was interesting and informative. I never heard of Lexis -- I thought that all "published" opinions were published by Westlaw. It would have helped the less-informed readers if the article had contained examples of citations and given abbreviations.

The best source for sample citations and abbreviations is the Bluebook, which all practitioners use and all good men hate. Legal citation is a mess, and many people are arguing for a revamping of the system. It’s unlikely to happen, because as irritating as the system is, it works.

The publishing arm of Westlaw is just called “West,” so you’ll occasionally see West-published reporters and treatises and such. Publications’ relationship to Westlaw and Lexis is, if I remember correctly, extremely boring.

For various reasons, I think that the pending new national rule allowing citation of unpublished opinions in all federal courts is stupid.

For various reasons, I agree.

I used to use the L.A. County Law Library in the Los Angeles Civic Center. That place is enormous. It seems they had everything. It is difficult to describe.

I haven’t seen that particular library, but I know what you mean. One of the ironies of modern practice is that most young attorneys don’t use libraries except as a place to plug in the laptop. We get everything from Westlaw and Lexis. The library at Harvard Law is the biggest in the world – an enormous and gorgeous building. Except for research assignments designed to teach you how to use the books and cite-checking by journal members, you very rarely see anyone manhandling dead trees.

I had to learn everything by doing. I think that there ought to be high school and college courses on pro se litigation, particularly in how to sue the government.

Your crankery aside, that’s not a bad idea. I would say, though, that the courses should be more balanced and broad-based than just “how to sue.” You wouldn’t have come this far down the road of crazy and wrong arguments, for example, if you’d had a good class in civil procedure. The problem is that civ pro is boring, and most people will never need to know it. The conventional wisdom is that people can always learn whatever law they need to know, or better yet consult an expert, or best yet, both. But I agree, primary education is civics should include a much more rigorous legal component.

The reason why those courses are not offered is, of course, because of opposition from attorneys who do not want to lose their lucrative monopoly. A lot of cases are argued with briefs, so it is often not necessary to have a ready familiarity with the law -- there is plenty of time to research answers to questions.

No. People who want to win their cases and can afford to hire a lawyer will always do so. I promise you, the difference between a professionally-authored brief and a layperson’s brief is vast, even when the layperson has all the time in the world.

Whew -- I have accused you of posting "dissertations" -- but look at me ! Well, at least I don't do it regularly, unlike you.

We appreciate your brevity.

Saturday, May 20, 2006 7:59:00 PM  
Blogger Larry Fafarman said...

Posted by Colin ( 5/20/2006 07:59:51 PM ) --

>>>>>Gosh, Larry, I’m sorry to make you read so much… but to be fair, you do need the practice.<<<<<<

I would rather get my reading practice elsewhere. And the big problem is not reading but answering. I have learned a lot from this debate, but a lot of your arguments are too repetitious. I have to keep covering the same ground over and over again, and it is getting very tiring.

>>>>I was pointing out that there was no declaratory relief in Farrar, and that your belief that there was such is based on your inability to understand what “declaratory relief” is.<<<<<

I pointed out a zillion times that there was declaratory relief in Farrar -- a finding that the plaintiffs' rights had been violated. Again I ask -- if such a finding is not declaratory relief, then what kind of relief is it? You have never answered that.

>>>>>Can you point to a single unqualified justice on the Buckhannon or Farrar courts?<<<<<

I did not say that they were unqualified -- I just said that they are no better qualified than many lower court judges, and many SC justices are political appointees.

>>>>>Larry, on the other hand, filed a lawsuit once. Can you guess how that balancing test is going to come out?<<<<<

I filed more than one lawsuit. I filed maybe about four suits in federal appeals courts (three original suits, one appeal), two appeals to the Supreme Court, and one case in California Superior Court (like a municipal court). All of my federal suits concerned the unconstitutional California "smog impact fee." As I said, the problem was that I insisted on suing in federal courts even though suits against state taxes must normally be filed in state courts. It was good experience, though.

>>>> I got that gem, along with the rest of my ideas about law, at Harvard Law School, class of ’04<<<<<

I am not impressed. That is no more significant to me than if you were the man in the moon.

No wonder the Supreme Court is so screwed up -- about five justices are Harvard Law School alums. Maybe you could get on the SC someday and mess things up further.

>>>>law is hard. There’s a reason you hire people who went to law school. <<<<<

As an engineer, I would say that engineering is a hell of a lot harder than law, with the exception of the ability to argue persuasively in court -- that takes real talent. So far as doing legal research, writing briefs, etc., is concerned -- that is a piece of cake. I was self-taught this stuff in a few weeks (with some help from the librarians at the L.A. County Law Library) -- in contrast, it took me many years to learn engineering in school.

>>>>>Original interpretation shows that the 14th Amendment doesn’t allow anchor babies.”<<<<

I searched the Internet for "anchor babies" and found that the Supreme Court ruled a long time ago that the 14th Amendment does not apply to the babies born to foreigners in the USA. However, "anchor babies" are apparently allowed now anyway.

>>>>>We have all seen laws begin with the words, "Notwithstanding any other provision of law," -- it is just a lame attempt to get around this "cardinal rule." A legislature should identify exactly what existing laws -- if any -- are superseded by a new law.

So what?<<<<<

So it shows that legislators are either not aware of this "cardinal rule" (that repeals by implication are not favored) or are dishonestly trying to circumvent it. It is just an example of an obscure Supreme Court ruling that a lot of people are unaware of.

>>>>>You haven’t even tried to address the 3rd Circuit precedent, nor can you show me any reason other than McConnell’s concurrence why the SC precedent might be seen as inconsistent.<<<<<<

Wrong -- I have addressed the 3rd circuit precedents several times in this blog. And the problem with the SC precedent is not inconsistency -- the problem is that there is only one SC quote that initially appears to support your position regarding the effect of nominal damages on mootness (the other quotes concern the effect of nominal damages on prevailing-party status) and that this one quote is vague and ambiguous (particularly in regard to nominal damages}, arguably just dictum (even you have conceded that it is just dictum), and contrary to common sense when applied in the manner in which you are applying it. That quote, from Buckhannon, is, "for so long as the plaintiff has a cause of action for damages, a defendant's change in conduct will not moot the case." I have gone over this many times already.

>>>>> I’m only interested in preventing you from using your blog as a platform for ridiculous lies about the law.<<<<<

You have based your whole argument here on a single ambiguous quote of an SC opinion, and even you admitted that the quote is just dictum (see the preceding). So who is spreading ridiculous lies about the law?

>>>>I prefer my simple definition of nominal damages: a trivial amount of money awarded to a party as a symbolic token of vindication on some other claim.

So you’ve decided that all the real definitions are inferior to the one you just invented, which adds a substantive and incorrect element – that ND are awarded contingent to some other claim<<<<<<

No, all the definitions of ND contain that element.

>>>>And “almost always” doesn’t make any difference; we know at least one instance in which a claim for ND can be mooted – a settlement, either voluntary or court-ordered<<<<

Since the exceptions to "almost always" weren't specified, there could be other exceptions -- like voluntary cessation (in certain circumstances).

>>>>>That’s true, it was a snarky apology. I’m not especially sorry for that. And you didn’t, in fact, have your facts straight:<<<<<<

What facts didn't I have straight? I said that all opinions in the Federal Supplement are citable as published opinions. You incorrectly stated that some appellate opinions that are not citable as published opinions are published in the Fed. Supp. -- but you meant the Federal Appendix.

>>>>>The conventional wisdom is that people can always learn whatever law they need to know, or better yet consult an expert, or best yet, both.<<<<<

The civil courts in Los Angeles County are -- or at least were -- extremely unfriendly to pro se litigants. For example, the superior and municipal courts recently split and lawsuits for under $25,000 could be filed in municipal court (where litigation is much simpler and cheaper than in superior court). There was a posted sign with this information in the municipal court but not in the superior court! The superior court did not post the sign even after I asked the court to post it! Lately there has been an effort to make the courts here more pro-se friendly, but the effort came too late to do me any good.

Sunday, May 21, 2006 6:57:00 AM  
Blogger Colin said...

I would rather get my reading practice elsewhere.

Just as long as you get it somewhere.

And the big problem is not reading but answering. I have learned a lot from this debate, but a lot of your arguments are too repetitious. I have to keep covering the same ground over and over again, and it is getting very tiring.

If you keep repeating the same wrong thing over and over again, it does not suddenly become correct. Take some time off and study the issues; I promise that I will never interpret silence on your part as any sort of concession.

I pointed out a zillion times that there was declaratory relief in Farrar -- a finding that the plaintiffs' rights had been violated. Again I ask -- if such a finding is not declaratory relief, then what kind of relief is it? You have never answered that.

Larry, your own definitions point out that DR is relief "without ordering anything be done or awarding damages." No injunctions, no nominal damages, no compensatory damages, nothing. Farrar was an award of nominal damages. Can you find any language in the case suggesting otherwise? You’re just making things up again... Please stick to the facts.

>>>>>Larry, on the other hand, filed a lawsuit once. Can you guess how that balancing test is going to come out?<<<<<

I filed more than one lawsuit. I filed maybe about four suits in federal appeals courts (three original suits, one appeal), two appeals to the Supreme Court, and one case in California Superior Court (like a municipal court). All of my federal suits concerned the unconstitutional California "smog impact fee." As I said, the problem was that I insisted on suing in federal courts even though suits against state taxes must normally be filed in state courts. It was good experience, though.


Well, then, I take it back - you are clearly as qualified to discuss the intricacies of civil procedure as any Justice of the Supreme Court.

I am not impressed. That is no more significant to me than if you were the man in the moon.

In all seriousness, good for you. Don’t let credentials stand in for arguments. On the flipside, however, don’t let your desire to be an iconoclast blind you to the fact that credentials stand in for experience and education. Making things up as you go along is good for nothing.

As an engineer, I would say that engineering is a hell of a lot harder than law, with the exception of the ability to argue persuasively in court -- that takes real talent. So far as doing legal research, writing briefs, etc., is concerned -- that is a piece of cake. I was self-taught this stuff in a few weeks (with some help from the librarians at the L.A. County Law Library) -- in contrast, it took me many years to learn engineering in school.

I would certainly agree that engineering education is harder than (most) legal education. (I’d say that legal savants drive themselves as hard as the hardest working people in any field.) But actual practice is much harder than you appreciate. I don’t know anyone who thinks that courtroom presentation is all that difficult; it takes practice and experience and a natural flair, but brief writing—good brief writing—is a much more exacting and difficult process. It might seem easy; after all, aren’t you sort of writing a brief in your comments? But your lack of success in court should be one indicator to you that it’s harder than it appears. Your research is faulty, your writing is fanciful and disconnected from the facts, and your logic is nonexistent. Law is hard, Larry. It’s only simple if you ignore all the rigors that make it useful, such as accuracy and honesty.

I searched the Internet for "anchor babies" and found that the Supreme Court ruled a long time ago that the 14th Amendment does not apply to the babies born to foreigners in the USA. However, "anchor babies" are apparently allowed now anyway.

I don’t know or care where this tangent came from.

So it shows that legislators are either not aware of this "cardinal rule" (that repeals by implication are not favored) or are dishonestly trying to circumvent it. It is just an example of an obscure Supreme Court ruling that a lot of people are unaware of.

What “rule”? As far as I can tell, you just cited someone’s opinion. Dicta at best, and utterly irrelevant in any event.

Wrong -- I have addressed the 3rd circuit precedents several times in this blog.

Really? Where? I’ll front that I wouldn’t count any statement that boils down to “Oh, that doesn’t count.”

[T]he problem is that there is only one SC quote that initially appears to support your position regarding the effect of nominal damages on mootness (the other quotes concern the effect of nominal damages on prevailing-party status) and that this one quote is vague and ambiguous (particularly in regard to nominal damages}, arguably just dictum (even you have conceded that it is just dictum), and contrary to common sense when applied in the manner in which you are applying it.

I agree that it is dictum. It is a descriptive passage: “This is what the law is.” When I compare it to your descriptions, I find the Supreme Court more persuasive. They have precedent, law, logic, and “common sense” on their side. But we should both disregard “common sense,” because that never means anything other than “this is what I think.” I know what you think. Find some evidence to support your opinion.

You have based your whole argument here on a single ambiguous quote of an SC opinion, and even you admitted that the quote is just dictum (see the preceding). So who is spreading ridiculous lies about the law?

You. For instance, you have ignored the various cases we’ve discussed from the Third, Sixth, and Tenth Circuits. You have ignored your inability to find any actual law supporting your opinion. You have ignored the binding precedent that would have prevented Judge Jones from mooting the case. You have ignored the absence of any recent cases in which a claim for nominal damages was mooted. You have, however, paid an inordinate amount of attention to your own fantasies. Is that healthy?

No, all the definitions of ND contain that element.

Really? Where? Show me the language.

Since the exceptions to "almost always" weren't specified, there could be other exceptions -- like voluntary cessation (in certain circumstances).

There could be... but you haven’t shown where they crop up in Third Circuit precedent, nor have I found any such instances. Nor will you, if you even deign to attempt to research your wildly speculative and unfounded claims.

Monday, May 22, 2006 8:55:00 AM  
Blogger Larry Fafarman said...

Colin said ( 5/22/2006 08:55:26 AM ) --

>>>>>If you keep repeating the same wrong thing over and over again, it does not suddenly become correct.<<<<<<

The problem is that you keep repeating arguments that I have already refuted.

>>>>>I pointed out a zillion times that there was declaratory relief in Farrar -- a finding that the plaintiffs' rights had been violated. Again I ask -- if such a finding is not declaratory relief, then what kind of relief is it? You have never answered that.

Larry, your own definitions point out that DR is relief "without ordering anything be done or awarding damages." No injunctions, no nominal damages, no compensatory damages, nothing. Farrar was an award of nominal damages.<<<<<

The Farrar case could be considered to contain awards of both declaratory relief and nominal damages. There is nothing in the definition of declaratory relief that says that it cannot be granted along with other kinds of relief -- for example, in the same lawsuit, a court could grant declaratory relief on one cause of action and compensatory relief on another cause of action. Also, the nominal damages could be considered to be just part of the declaratory relief, on the grounds that these damages -- normally just $1 -- are too small to qualify as real damages under the definition of declaratory relief. You have been arguing that nominal damages are completely separate from other claims but you are now implying that nominal damages were part of declaratory relief in Farrar.

You have really been making a fetish over this nominal damages thing. In that recent North Carolina case, the judge ruled that he would not continue the case just to give the plaintiffs the opportunity to be granted nominal damages.

>>>>>Well, then, I take it back - you are clearly as qualified to discuss the intricacies of civil procedure as any Justice of the Supreme Court.<<<<<

I am as entitled to my opinion as you or they are.

>>>>>So it shows that legislators are either not aware of this "cardinal rule" (that repeals by implication are not favored) or are dishonestly trying to circumvent it.

What “rule”? As far as I can tell, you just cited someone’s opinion. Dicta at best, and utterly irrelevant in any event.<<<<<<

It's not really a "cardinal" rule -- the only place I saw it was in a 1936 Supreme Court opinion. It was not dicta -- it was central to the case. It is not relevant to the present discussion, but I think it's a great quote mine, though -- it really makes all that "notwithstanding any other provision of law" stuff look silly.

>>>>> I don’t know anyone who thinks that courtroom presentation is all that difficult;<<<<<

I suppose that one's ability and poise improve with practice, but I just got stage fright in court and forgot what I was going to say. I found it much easier to just write briefs.

>>>>Wrong -- I have addressed the 3rd circuit precedents several times in this blog.

Really? Where? I’ll front that I wouldn’t count any statement that boils down to “Oh, that doesn’t count.” <<<<<

"Almost always" is not the same as "always." The term "damages" does not necessarily include "nominal damages" when such inclusion leads to an absurd result. Nominal damages are a very special kind of damages and judges do not always have nominal damages in mind when they speak of "damages." I have been through all this stuff many times.

>>>>>[T]he problem is that there is only one SC quote that initially appears to support your position regarding the effect of nominal damages on mootness (the other quotes concern the effect of nominal damages on prevailing-party status) and that this one quote is vague and ambiguous (particularly in regard to nominal damages}, arguably just dictum (even you have conceded that it is just dictum), and contrary to common sense when applied in the manner in which you are applying it.

I agree that it is dictum. It is a descriptive passage: “This is what the law is.” <<<<<

It is not only dictum, but it also suffers from the other problems I describe above.

>>>>>For instance, you have ignored the various cases we’ve discussed from the Third, Sixth, and Tenth Circuits.<<<<<

I already showed that the precedents of the 3rd Circuit -- Judge Jones' Circuit -- do not necessarily apply.

>>>>> You have ignored your inability to find any actual law supporting your opinion.<<<<<

So far, this is just a matter of case law, not statutory law. But I would just love to see a statute prohibiting this kind of abuse of nominal damages.

>>>>> You have ignored the binding precedent that would have prevented Judge Jones from mooting the case.<<<<<

No, I have already shown that Supreme Court and 3rd Circuit precedents are not binding here.

>>>>> You have ignored the absence of any recent cases in which a claim for nominal damages was mooted.<<<<<

It just happened in that case in North Carolina.

>>>>>No, all the definitions of ND contain that element (i.e., that nominal damages are contingent upon the granting of other claims)

Really? Where? Show me the language. <<<<<

I just showed it to you -- I cited four definitions of nominal damages. Here they are again --

a small amount of money awarded to a plaintiff in a lawsuit to show he/she was right but suffered no substantial harm.

: damages awarded in a small amount (as one dollar) in cases in which a party has been injured but no loss resulted from the injury or in which the injured party failed to prove that loss resulted from the injury

A term used when a judge or jury finds in favor of one party to a lawsuit--often because a law requires them to do so--but concludes that no real harm was done and therefore awards a very small amount of money.

nominal damages are very small damages awarded to show that the loss or harm suffered was technical rather than actual.


>>>>>Since the exceptions to "almost always" weren't specified, there could be other exceptions -- like voluntary cessation (in certain circumstances).

There could be... but you haven’t shown where they crop up in Third Circuit precedent, nor have I found any such instances.<<<<<

There is a first time for everything.

Anyway, I said that I have learned a lot from this debate, but now I am not learning much of anything, and so I will soon invoke one of the rules of this blog -- that my non-response to any comment is not an indication of agreement, approval, inability to answer, or that I am conceding anything. I have already conceded that there is a controversy over whether a nominal-damages claim alone is sufficient to prevent mootness, and that is all I am going to concede.

Monday, May 22, 2006 11:30:00 AM  
Blogger Colin said...

The Farrar case could be considered to contain awards of both declaratory relief and nominal damages. There is nothing in the definition of declaratory relief that says that it cannot be granted along with other kinds of relief -- for example, in the same lawsuit, a court could grant declaratory relief on one cause of action and compensatory relief on another cause of action. Also, the nominal damages could be considered to be just part of the declaratory relief, on the grounds that these damages -- normally just $1 -- are too small to qualify as real damages under the definition of declaratory relief. You have been arguing that nominal damages are completely separate from other claims but you are now implying that nominal damages were part of declaratory relief in Farrar.

Oh my god, Larry, how hard is this to understand? “Declaratory relief” isn't something that happens whenever a court awards any sort of relief. If Farrar had been granted declaratory relief, the Court would have said that there was an award of such relief. But because you need there to have been an award of DR in order to avoid admitting error, you twist in the wind and keep spitting out new and imaginary definitions. Nominal damages are not declaratory relief. If a court requires the defendants to do anything, even pay a single dollar, then that is not declaratory relief. Read the definitions you've cited! I have said this, explicitly and clearly, several times now. But again, you just can't admit basic facts that don't support your preconceived conclusions. You're a very dishonest man, Larry.

You have really been making a fetish over this nominal damages thing. In that recent North Carolina case, the judge ruled that he would not continue the case just to give the plaintiffs the opportunity to be granted nominal damages.

Larry, you're so full of crap your back teeth are floating. The judge in that case decided not to grant an amendment that would add a claim for nominal damages. The standard for adding a claim and the analysis of what that claim does when it is actually part of the case are two different things. I don't think that you're incapable of understanding that, but I do think that you are incapable of admitting it, because again, you refuse to back down even when you are obviously, completely, totally wrong. You're rapidly becoming the saddest little moon in orbit around Intelligent Design.

>>>>>Well, then, I take it back - you are clearly as qualified to discuss the intricacies of civil procedure as any Justice of the Supreme Court.<<<<<

I am as entitled to my opinion as you or they are.


The difference, of course, is that the Supreme Court and I understand the issues. We discuss facts, and address the real world. All you have is an opinion, which you jealously guard against education, information, and knowledge that would threaten it. Everyone has an opinion, Larry. What matters is what you do with it. Yours just seems to be the justification for lies and willful ignorance.

>>>>Wrong -- I have addressed the 3rd circuit precedents several times in this blog.

Really? Where? I’ll front that I wouldn’t count any statement that boils down to “Oh, that doesn’t count.” <<<<<


"Almost always" is not the same as "always." The term "damages" does not necessarily include "nominal damages" when such inclusion leads to an absurd result. Nominal damages are a very special kind of damages and judges do not always have nominal damages in mind when they speak of "damages." I have been through all this stuff many times.

Jesus, Larry, this is just sad. “Almost always” does not include any applicable exception, and you must know that. If you could find one – just one – case actually finding in your favor, you'd be waiving it around like a banner. And damages clearly includes “nominal damages.” Doe interprets Jersey, the Third Circuit's underlying case, as extending to nominal damages. But you already knew that, too, because I've repeated twice before. You've “been through” this several times, but all you do is make shit up and pretend that it's gold. Lies aren't law, Larry. Your constant deceptions aren't fooling anyone.

>>>>>For instance, you have ignored the various cases we’ve discussed from the Third, Sixth, and Tenth Circuits.<<<<<

I already showed that the precedents of the 3rd Circuit -- Judge Jones' Circuit -- do not necessarily apply.


Once again, your imagination doesn't count as “showing” anything. I know that you don't want those cases to apply. But you have yet to make any sort of serious, logical argument—much less one actually grounded in case law—that distinguishes those cases. Pull it together, your denial is becoming pathological.

>>>>> You have ignored your inability to find any actual law supporting your opinion.<<<<<

So far, this is just a matter of case law, not statutory law.


“Law” in this context can mean either statutory law or case law. You haven't found any of either.

>>>>> You have ignored the absence of any recent cases in which a claim for nominal damages was mooted.<<<<<

It just happened in that case in North Carolina.


That is an absolute and total lie, isn't it, Larry? There wasn't a claim for nominal damages in that case, was there, Larry? So no claim for nominal damages was ever mooted there, was it, Larry? Do you really think I'm not going to point out to whatever readers that you have left that you're lying through your teeth?

>>>>>No, all the definitions of ND contain that element (i.e., that nominal damages are contingent upon the granting of other claims)

Really? Where? Show me the language. <<<<<

I just showed it to you -- I cited four definitions of nominal damages.


Not a single one of those definitions states that ND are contingent upon the granting of another claim. You don't understand what the basic terms mean, Larry. When the court awards ND because the plaintiffs' rights were violated, that's not two claims – it's just one. ND is not contingent upon the granting of some other claim, such as for DR, compensatory damages, or injunctive relief. You are completely ignorant, and completely unwilling to do a damned thing about it.


>>>>>There could be... but you haven’t shown where they crop up in Third Circuit precedent, nor have I found any such instances.<<<<<

There is a first time for everything.


Longer Larry: “There are no courts anywhere that agree with me. Therefore the Dover board was in error when it failed to try to moot the case, because this could have been the first case ever!”

Bullshit. District courts are bound by higher precedent, and Judge Jones was bound by the Jersey/Doe line of cases. Your protestations don't get any more persuasive, Larry, just more transparent and more boring.

Anyway, I said that I have learned a lot from this debate, but now I am not learning much of anything, and so I will soon invoke one of the rules of this blog -- that my non-response to any comment is not an indication of agreement, approval, inability to answer, or that I am conceding anything. I have already conceded that there is a controversy over whether a nominal-damages claim alone is sufficient to prevent mootness, and that is all I am going to concede.

There is no controversy. Like the other creationists, though, you think that your insistence on being correct despite the total absence of any evidence for your position creates one. It doesn't. No objective observer would think that Judge Jones was free to do anything other than what he did, or that the board had a chance in hell of mooting the claim.

As for learning something, you never learn anything. Education would threaten your prized preconceptions, and I have yet to see you actually pick up on facts. You still don't understand what nominal damages are, or what declaratory relief is, and you don't seem to want to know. You'd rather just play pretend, and base your arguments around your own fantasies rather than objective reality. But as I said before, feel free to move on to one of the newer threads. I will never interpret your silence on any issue as a concession.

Monday, May 22, 2006 9:19:00 PM  
Blogger Larry Fafarman said...

Colin said ( 5/22/2006 09:19:52 PM ) --

>>>>>“Declaratory relief” isn't something that happens whenever a court awards any sort of relief.<<<<<<

I never said or implied that.

>>>>>If Farrar had been granted declaratory relief, the Court would have said that there was an award of such relief.<<<<<

As I said, the court erred in not saying so. If the nominal damages are taken away in Farrar, what is left is declaratory relief -- in this case, a finding that the plaintiffs' rights were violated. As I said, nominal damages are just a symbolic token of vindication that the plaintiff has won some other kind of claim -- e.g., a claim for injunctive relief, declaratory relief, or even compensatory damages!

>>>>>You have really been making a fetish over this nominal damages thing. In that recent North Carolina case, the judge ruled that he would not continue the case just to give the plaintiffs the opportunity to be granted nominal damages.

Larry, you're so full of crap your back teeth are floating. The judge in that case decided not to grant an amendment that would add a claim for nominal damages.<<<<<

As I said, the judge never said that it mattered to him when or where the claim for nominal damages was introduced -- he simply said, "...... the court in its discretion will not allow the continuation of a lawsuit merely to allow Plaintiffs to seek nominal damages, which, even if proven, would be limited to one dollar." There is no reason to believe that his decision would have been any different if the claim for nominal damages had been introduced in the original complaint. Sheesh -- I've been through this several times already.

>>>>“Almost always” does not include any applicable exception<<<<<

Of course "almost always" includes any applicable exception -- what is the matter with you?

>>>>Doe interprets Jersey, the Third Circuit's underlying case, as extending to nominal damages.<<<<<

You never quoted any such interpretation.

>>>>>>>>>> Colin said -- You have ignored the absence of any recent cases in which a claim for nominal damages was mooted.

Larry said -- It just happened in that case in North Carolina.

Colin said -- There wasn't a claim for nominal damages in that case, was there, Larry?<<<<<

Now you know that you are lying -- there was a claim for nominal damages in the motion to amend the complaint.

>>>>>So no claim for nominal damages was ever mooted there, was it, Larry?<<<<<

The judge declared the nominal-damages claim to be moot because all other claims were declared moot: "...... the court in its discretion will not allow the continuation of a lawsuit merely to allow Plaintiffs to seek nominal damages, which, even if proven, would be limited to one dollar." As I said, he never said that it mattered to him when the claim for nominal damages was introduced.

>>>>>Not a single one of those definitions states that ND are contingent upon the granting of another claim.<<<<

Read them again. You have given no example of a case where nominal damages were awarded as a consolation prize to a plaintiff who lost on all other claims.

>>>>Longer Larry: “There are no courts anywhere that agree with me. <<<<

I don't have to show that the courts agree with me. All I have to show is that the courts do not necessarily agree with you. And I don't even really have to show that much, because these are just Monday-morning arguments so far as the Dover school board's guilt is concerned.

>>>>When the court awards ND because the plaintiffs' rights were violated, that's not two claims – it's just one.<<<<<

But you said that the ND claim and the claim of violation of rights are two separate claims during the trial, because you said that the ND claim alone is sufficient to prevent mootness. Please make up your mind.

>>>>But as I said before, feel free to move on to one of the newer threads. I will never interpret your silence on any issue as a concession.<<<<

Thank you! Too bad that a lot of others don't feel that way. But they figure that I have already lost the debate even before I respond, anyway.

Tuesday, May 23, 2006 4:48:00 AM  
Blogger Colin said...

>>>>>If Farrar had been granted declaratory relief, the Court would have said that there was an award of such relief.<<<<<

As I said, the court erred in not saying so. If the nominal damages are taken away in Farrar, what is left is declaratory relief -- in this case, a finding that the plaintiffs' rights were violated.


How can one man generate so much pompous idiocy? You're an absolute dynamo, Larry, an engine cranking out ten million horsepower of pure stupid. Nominal damages weren't “taken away” in Farrar. They just weren't enough, compared to the requested compensatory award, to make Farrar a prevailing party for the purposes of Sec. 1988.

As I said, nominal damages are just a symbolic token of vindication that the plaintiff has won some other kind of claim -- e.g., a claim for injunctive relief, declaratory relief, or even compensatory damages!

You keep saying it, and you're wrong every time. The definitions aren't written in Greek, Larry. Nominal damages aren't signs that the plaintiff has prevailed on some other cause of action. They are a cause of action in and of themselves. Have you forgotten the list of cases I provided for you that went forward on purely ND claims? Being ignorant is one thing, but not learning even when someone is willing to spoonfeed you information is sad. Please read up on the definition before repeating this nonsense.

>>>>>Larry, you're so full of crap your back teeth are floating. The judge in that case decided not to grant an amendment that would add a claim for nominal damages.<<<<<

As I said, the judge never said that it mattered to him when or where the claim for nominal damages was introduced -- he simply said, "...... the court in its discretion will not allow the continuation of a lawsuit merely to allow Plaintiffs to seek nominal damages, which, even if proven, would be limited to one dollar." There is no reason to believe that his decision would have been any different if the claim for nominal damages had been introduced in the original complaint. Sheesh -- I've been through this several times already.


Once again, repeating something stupid doesn't make it less stupid. The plaintiffs asked for permission to add a claim for nominal damages. The court refused, noting in passing that the addition of such a claim would preclude mootness. Your argument here is straining the limits of my ability to believe that you're a real person, and not a crafty troll. Your first sentence quoted above says that the judge didn't care whether the claim was added, then quotes the judge saying that in his discretion he refused to add the claim. Read the decision, Larry. Your imaginary version is no substitute for reality.

>>>>“Almost always” does not include any applicable exception<<<<<

Of course "almost always" includes any applicable exception -- what is the matter with you?


There are no applicable exceptions that can fairly be read into that case. An inapplicable exception would be the voluntary settlement exception. You're losing track of the law again. It would be easier to keep all together in your head if you would read it, instead of making it up.

>>>>Doe interprets Jersey, the Third Circuit's underlying case, as extending to nominal damages.<<<<<

You never quoted any such interpretation.


God forbid you read it yourself. We've come to a point where I can't – and won't – waste my time hunting for soundbytes. Law is more than pithy quotes. You have to try to understand the law, instead of just trying to bend it to suit your preconceptions. If you refuse to acknowledge what the law actually says, you'll never convince anyone that it should be read differently. Your audience will pick up on your intellectual dishonesty and tune out your blather.

Colin said -- There wasn't a claim for nominal damages in that case, was there, Larry?<<<<<

Now you know that you are lying -- there was a claim for nominal damages in the motion to amend the complaint.


That motion was denied, Larry. A denied amendment has no effect. It certainly doesn't add a proposed claim to the lawsuit. How much do you have to drink before you can't tell the difference between a proposed and rejected amendment and an actual amendment?

I'll use small words: The plaintiffs wanted to file a new complaint. An “amended complaint.” It replaces their first complaint. They have to get permission to do that after a certain point. They asked permission. The court said no. The amended complaint was rejected. The original complaint stood. There was no claim for nominal damages in the original complaint.

I may have used too many syllables in there.

>>>>>So no claim for nominal damages was ever mooted there, was it, Larry?<<<<<

The judge declared the nominal-damages claim to be moot because all other claims were declared moot: "...... the court in its discretion will not allow the continuation of a lawsuit merely to allow Plaintiffs to seek nominal damages, which, even if proven, would be limited to one dollar." As I said, he never said that it mattered to him when the claim for nominal damages was introduced.


The continuation of the lawsuit. If all of the actual claims were mooted, and the addition of a claim for nominal damages would have continued the suit, what does that mean? A claim for nominal damages cannot be mooted. Its addition would have prevented mootness. Because the court, in its discretion, decided not to do that, he rejected the proposed addition of the claim. That claim was not mooted, because it was not part of the case: it was proposed and rejected. You're making your already sad arguments abjectly pathetic, Larry. One more time:

A proposed and rejected amendment does not add any new claims. That's what “rejected” means.

>>>>>Not a single one of those definitions states that ND are contingent upon the granting of another claim.<<<<

Read them again. You have given no example of a case where nominal damages were awarded as a consolation prize to a plaintiff who lost on all other claims.


I have read them. They don't say what you want them to. That is because what you want them to say is wrong, and untrue. There is a limit to how severely you can distort the truth with the words right there in front of you; can you cite the specific language that you think supports your position? Don't you think it's odd that you can't find any courts, or any definitions, or any treatises, or any educated commentator who agrees with you? There's a reason for that, Larry: you're just plain wrong.

As for not citing cases in which nominal damages alone were awarded, that is—and this will come a surprise to exactly no one—you are lying through your teeth. I cited many such cases in your “Two-Timing” thread. Buss v. Quigg, F.Supp.2d, 2002 WL 31262060 (E.D.Pa. 2002), from Judge Jones' own district, was one of them. It was affirmed by the circuit in Buss v. Quigg, 91 Fed.Appx. 759 (3rd Cir. 2004). You can (but probably won't) read it here.

And here is the same list of cases I provided there, which I found after only a few seconds' search:

Robbins v. Chronister, 435 F.3d 1238 (10th Cir. 1238); Wagner v. City Of Holyoke, Massachusetts, 404 F.3d 504 (1st Cir. 2005); Mercer v. Duke University, 401 F.3d 199 (4th Cir. 2005); Boston's Children First v. City of Boston, 395 F.3d 10 (1st Cir. 2005).

I swear, Larry, you don't just refuse to learn, you positively cringe from facts and critical thinking. You wouldn't be such an ignorant fool if you thought once in a while. Insisting that you are right in the face of overwhelming evidence to the contrary does not change the facts. It only makes you look childish.

>>>>Longer Larry: “There are no courts anywhere that agree with me. <<<<

I don't have to show that the courts agree with me. All I have to show is that the courts do not necessarily agree with you. And I don't even really have to show that much, because these are just Monday-morning arguments so far as the Dover school board's guilt is concerned.


Sigh. Do you understand how logic works, Larry? You have made a claim. You say, “A cause of action for nominal damages may be mooted.” I have provided case after case, as well as simple definitions of legal terms, refuting that silly claim. You have no support whatsoever. Your egregiously erroneous claim doesn't stand just because you say so. If you want to persuade anyone that you are correct, you'll eventually need some evidence. Your imagination, and I can't stress this enough, simply doesn't cut it.

>>>>When the court awards ND because the plaintiffs' rights were violated, that's not two claims – it's just one.<<<<<

But you said that the ND claim and the claim of violation of rights are two separate claims during the trial, because you said that the ND claim alone is sufficient to prevent mootness. Please make up your mind.


The two clauses of your first sentence don't add up or follow each other. Can you actually provide some language of mine saying that? You've clearly—and unsurprisingly—misunderstood something somewhere along the way. Or, more likely, you're just lying and hoping to confuse the issue for anyone still reading this thread. That, also, would not be surprising. You're not a very honest man, are you, Larry?

Tuesday, May 23, 2006 10:57:00 PM  
Blogger Larry Fafarman said...

Colin said ( 5/23/2006 10:57:51 PM ) --

>>>>>If the nominal damages are taken away in Farrar, what is left is declaratory relief -- in this case, a finding that the plaintiffs' rights were violated.

Nominal damages weren't “taken away” in Farrar.<<<<<

I know that! I never said that they were! I was obviously just talking in hypothetical or imaginary terms.

Ok, i'll put it this way -- had there been no claim for nominal damages in Farrar, there would have been just declaratory relief -- a finding of a violation of the plaintiffs' rights. Sheesh Give me a break.

>>>>>As I said, the judge never said that it mattered to him when or where the claim for nominal damages was introduced -- he simply said, "...... the court in its discretion will not allow the continuation of a lawsuit merely to allow Plaintiffs to seek nominal damages, which, even if proven, would be limited to one dollar."

Your first sentence quoted above says that the judge didn't care whether the claim was added, then quotes the judge saying that in his discretion he refused to add the claim.<<<<

The judge's statement makes no indication that the plaintiffs were attempting to "add" a claim -- a person reading just that statement without reading the rest of the opinion would just assume that the claim was in the original complaint!

Again, the judge never said that it made a whit of difference to him when or where the claim for nominal damages was introduced. If it made a difference to him, why wouldn't he say so in the opinion? Why wouldn't he try to give as much support for his decision as he could? Why are you trying to put into the judge's mouth things that he did not say? You are the one who is acting like a "crafty troll."

>>>>>As for not citing cases in which nominal damages alone were awarded, that is—and this will come a surprise to exactly no one—you are lying through your teeth. I cited many such cases in your “Two-Timing” thread. Buss v. Quigg, F.Supp.2d, 2002 WL 31262060 (E.D.Pa. 2002), from Judge Jones' own district, was one of them. It was affirmed by the circuit in Buss v. Quigg, 91 Fed.Appx. 759 (3rd Cir. 2004). You can (but probably won't) read it here.<<<<<

I read Buss v. Quigg, and found that there was also declaratory relief -- a finding that the plaintiffs' rights were violated. Why are you showing me this stuff? I know that you are never going to find a case where nominal damages were awarded as a consolation prize to a plaintiff who had lost on all other claims.

I am not going on a wild goose chase through the other cases that you have cited. And not only have you not provided relevant quotations from those cases, but you have not even provided URL links for most of them.

Wednesday, May 24, 2006 1:14:00 AM  
Blogger Colin said...

Nominal damages weren't “taken away” in Farrar.<<<<<

I know that! I never said that they were! I was obviously just talking in hypothetical or imaginary terms.


That’s the problem, Larry. You only talk in imaginary terms. Try addressing the facts for a change. The fact is that Farrar was an award of nominal damages. An award of only nominal damages. This, despite your constant (and stupid) whining that such a thing is impossible.

The judge's statement makes no indication that the plaintiffs were attempting to "add" a claim -- a person reading just that statement without reading the rest of the opinion would just assume that the claim was in the original complaint!

Again, you’re flaunting your own incredible ignorance. “A person reading just that statement without reading the rest of the opinion...” The problem, Larry, is that you don’t read the rest of the opinion. And what little you do read, you don’t understand. You pretend that you do, and then reject any and all information contrary to your preconceptions. A grade-school student could read that opinion and realize what was happening in that case. It somehow has you completely flummoxed, unable to tell what was in effect and what was hypothetical.

Again, the judge never said that it made a whit of difference to him when or where the claim for nominal damages was introduced. If it made a difference to him, why wouldn't he say so in the opinion?

He did. He said that the way the plaintiffs wanted to introduce it, as an amendment, was insufficient for at least two separate reasons. But you don’t understand what he wrote, so you think he didn’t say anything at all.

I read Buss v. Quigg, and found that there was also declaratory relief -- a finding that the plaintiffs' rights were violated.

No, Larry, there wasn’t. When a court says, “Your rights were violated, so we award you $X,” that is not declaratory relief. It is relief in the form of $X in damages. Please at least look up “declaratory relief” in a goddamned dictionary. You are wrong about these cases, because you don’t bother to even look up words you don’t understand.

Can you cite anything - anything - in support of your made-up definition? You cannot. Because your definition is wrong. Both Farrar and Buss are cases in which only declaratory relief was awarded (aside from fees and costs). As are the others which I have cited.

Why are you showing me this stuff? I know that you are never going to find a case where nominal damages were awarded as a consolation prize to a plaintiff who had lost on all other claims.

Farrar. Buss. Any one of the half-dozen cases I’ve listed. You can lead a dummy to a book, but you can’t make him read.

I am not going on a wild goose chase through the other cases that you have cited. And not only have you not provided relevant quotations from those cases, but you have not even provided URL links for most of them.

As I’ve said before, you really cherish your own ignorance, don’t you? You’re just wildly indignant that someone would ask you to learn. You can google those cases, or many like them. Or you can read a book. Or you can read Farrar, or Buss.

But we all know that even if you do read one of those sources, you’ll ignore anything and everything that doesn’t confirm your preconceptions, which means that you still won’t learn anything.

Wednesday, May 24, 2006 12:25:00 PM  
Blogger Larry Fafarman said...

Colin said ( 5/24/2006 12:25:06 PM ) --

>>>>>Colin said -- Nominal damages weren't “taken away” in Farrar.

Larry said -- I know that! I never said that they were! I was obviously just talking in hypothetical or imaginary terms.

Colin said -- That’s the problem, Larry. You only talk in imaginary terms. Try addressing the facts for a change.<<<<<

Colin, there is no satisfying you. First I said that there were two kinds of awards -- declaratory relief (a finding that rights were violated) and nominal damages -- in Farrar. That did not satisfy you. Then I said that there was just one kind of award -- a combination of declaratory relief and nominal damages -- in Farrar, and that did not satisfy you. Then I said that if the plaintiffs in Farrar had not asked for nominal damages, then they would have received only declaratory relief, and that did not satisfy you either. You cannot be satisfied, so I am wasting my time trying.

>>>>>>Again, the judge never said that it made a whit of difference to him when or where the claim for nominal damages was introduced. If it made a difference to him, why wouldn't he say so in the opinion?

He did. <<<<<<

No, he did not. You have not quoted anything from the opinion in support of your position. And the reason for that, of course, is that nothing in the opinion supports your position.

>>>>>You can google those cases, or many like them.<<<<<

"Googling" cases is not too efficient, because many of the web addresses that appear contain just citations or discussions of the opinions rather than the opinions themselves. And some cases cannot be found directly just by googling -- I had to go directly to the 10th Circuit's website to find some of the opinions. I generally give a URL link when I introduce a case.

Colin, the only reason why I have debated you for so long on this subject is that some readers might think for some strange reason that I have a greater burden of proof because you are an attorney whereas I am not -- but if they are not convinced by now that I have won this debate, they never will be. Also, there are some people out there -- e.g., Kevin Vicklund, Ed Brayton, and Rilke's Granddaughter -- who will claim that I lost this debate before I even started, so I am certainly not going to continue the debate for their sake. So this debate is over now. If you have anything really new to introduce on this subject or any other subject, I will consider it.

Wednesday, May 24, 2006 4:37:00 PM  
Blogger Colin said...

Colin, there is no satisfying you. First I said that there were two kinds of awards -- declaratory relief (a finding that rights were violated) and nominal damages -- in Farrar. That did not satisfy you. Then I said that there was just one kind of award -- a combination of declaratory relief and nominal damages -- in Farrar, and that did not satisfy you. Then I said that if the plaintiffs in Farrar had not asked for nominal damages, then they would have received only declaratory relief, and that did not satisfy you either. You cannot be satisfied, so I am wasting my time trying.

Each of those statements is wrong. Going from error to error to error does not make you correct. Declaratory relief was not on the table in Farrar. The plaintiffs received nominal damages, and nominal damages alone – not in combination with, or in lieu of, a declaratory judgment.

You are only wasting your time if you refuse to educate yourself.

>>>>>>Again, the judge never said that it made a whit of difference to him when or where the claim for nominal damages was introduced. If it made a difference to him, why wouldn't he say so in the opinion?

He did. <<<<<<

No, he did not. You have not quoted anything from the opinion in support of your position. And the reason for that, of course, is that nothing in the opinion supports your position.


An entire section of the order is devoted to when, where, and how the plaintiffs attempted to amend their complaint. One of the primary reasons the court rejected the proposed amendment is that the plaintiffs offered it too late. In fact, if they had offered it earlier, they would not have needed the court’s permission to amend.

Moreover, the claim for nominal damages was not introduced. It was proposed and rejected. It had no effect on the case whatsoever, other than taking the court's time to analyze it. The claim essentially never existed; it was merely a proposal, and one that failed.

"Googling" cases is not too efficient, because many of the web addresses that appear contain just citations or discussions of the opinions rather than the opinions themselves. And some cases cannot be found directly just by googling -- I had to go directly to the 10th Circuit's website to find some of the opinions. I generally give a URL link when I introduce a case.

Feel free to continue to do so. But I note that you haven’t introduced very many cases, and none at all that support your arguments. I realize that you don’t have Westlaw access, but you’ve made some very radical claims about the law, and offered nothing at all to support them. The burden of proof is on you to show that your proposals have any substance to them, and I will not waste my time hunting down nonexistent cases. The law just doesn’t support your hypotheses about what it might or should say.

Colin, the only reason why I have debated you for so long on this subject is that some readers might think for some strange reason that I have a greater burden of proof because you are an attorney whereas I am not -- but if they are not convinced by now that I have won this debate, they never will be.

You have the burden of proof because you have advanced the thesis here. I have rebutted it. You offered no evidence in support of your thesis, or to refute my rebuttal. You have not carried any burden at all. As for convincing others of your legal prowess, I have yet to see any evidence that you have persuaded anyone at all (excepting the false identities you created to support yourself at the Thumb).

Also, there are some people out there -- e.g., Kevin Vicklund, Ed Brayton, and Rilke's Granddaughter -- who will claim that I lost this debate before I even started, so I am certainly not going to continue the debate for their sake. So this debate is over now. If you have anything really new to introduce on this subject or any other subject, I will consider it.

It’s your blog, you can write or not, as you see fit.

Wednesday, May 24, 2006 9:15:00 PM  
Blogger Larry Fafarman said...

Final reply to Colin --

I finally realized that I have been debating the nitpicking details of this issue for so long that I could no longer see the forest for the trees. The bottom line is the following point that I raised before, but failed to emphasize often enough --

If a claim for nominal damages were alone sufficient to prevent mootness, then all complaints would include a claim for nominal damages and no cases could be mooted.

Thursday, May 25, 2006 12:45:00 AM  
Anonymous W. Kevin Vicklund said...

>>>If a claim for nominal damages were alone sufficient to prevent mootness, then all complaints would include a claim for nominal damages and no cases could be mooted.<<<

Not necessarily. For a claim of nominal damages to be made, three conditions must be met:

1) There must be an alleged violation of plaintiffs civil rights

2) The defendants must not be immune to damages (normally, the states and federal governments and their agencies and officers are immune to damages)

3) The plaintiffs must request nominal damages (or other damages) in a timely manner

So why don't more claims that meet conditions 1&2 fulfill the 3rd condition? They may choose not to for various reasons, (one possible example is that it may create a broader ruling than plaintiffs desire). Or they may simply not realize that it is an option. The simple fact is, many plaintiffs, for whatever reason, do not request all the relief they may be entitled to by law.

I will agree with one thing though: Plaintiffs that want to make sure their complaint does not get mooted, and meets conditions 1&2 above, should include a claim for nominal damages in the initial complaint. If they don't, and their claim gets mooted, it's their own damn fault (or their lawyers).

Or as some guy once said:

Shoulda, woulda, coulda.

Thursday, May 25, 2006 9:32:00 AM  
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