Ed Brayton wrong again on Dover mootness issue

Ed Brayton, in an article titled "A New Case on Mootness" on his blog "Dispatches from the Culture Wars," is now arguing that a new federal district-court decision, Alpha Iota Omega Christian Fraternity v. Hamm, does not support the idea that the Dover school board could possibly have mooted the Dover lawsuit and thereby avoided attorney fees by repealing the ID policy prior to judgment. He got it wrong again.

In that new decision, the judge ruled that the case was moot as a result of a change in policy by the University of North Carolina while the case was pending. Ed vainly tried to distinguish this case from the Dover case.

Ed made the following arguments:

A. There was no request for nominal damages in the UNC case. Indeed, the judge's ruling specifically notes that fact because, if it had been otherwise, it would have demanded a ruling on the merits.

Wrong. The plaintiffs amended the complaint by adding a claim for nominal damages and other new claims (page 23 of opinion). The opinion 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." (page 29 of opinion)

B. No trial had taken place in the case. The judge had issued a preliminary injunction against the university, but the actual trial had not taken place on the merits of the case yet. In Dover, the trial was over and a ruling was a mere few days away.

As for no trial having taken place in the case, the courts have never ruled that the stage of the litigation should be a consideration in deciding whether a case should be declared to be moot. After great expenditures of time and money by the parties involved, the Supreme Court dismissed the Marco DeFunis reverse-discrimination case as moot because he was about to graduate from the law school whose admission policies he challenged. The Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001) case was declared to be moot after the plaintiff had incurred considerable legal expenses, and the Supreme Court ruled that the "catalyst theory" (the notion that when a case is dismissed as moot because of the defendant's voluntary cessation of the challenged action, the plaintiff is entitled to a statutory award of attorney fees on the grounds that the lawsuit allegedly caused the voluntary cessation) did not entitle the plaintiff to an award of attorney fees.

C. There was far less chance of the new policy being reversed, for several reasons. First, because university administrations do not change every year (or two years) the way school boards do. Second, because the judge's injunction clearly told the university that if they reversed themselves, they'd get hauled into court and almost certainly lose.

As for the statement "There was far less chance of the new policy being reversed," judgment of the likelihood of repetition is subjective and speculative. In the Dover case, there were the following major disincentives for re-instatement of the ID policy or something similar: (1) the ID policy and the lawsuit had deeply divided the community and brought notoriety to the community; and (2) there was the possibility of more legal expenses. As for the statement that the judge told the defendants in Alpha Iota Omega that they would "almost certainly lose" another lawsuit, Ed Brayton's quote of the opinion said nothing of the kind. All this quote said was that the judge was satisfied that the possibility of re-instatement of the challenged policy was "unlikely" and that the defendants could be "trusted" to not re-instate it. Also, a judge telling defendants that they would "almost certainly lose" another lawsuit would have been improperly giving legal advice to the defendants. Also, the purpose of a preliminary injunction is not to send a message to a defendant of likely loss of a lawsuit -- the purpose of a preliminary injunction is to provide temporary relief or prevent irreparable harm pending further rulings by the court. To grant a preliminary injunction, a judge does not even necessarily need to be convinced that the suit has merit.

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I would like to post these rebuttals on "Dispatches from the Culture Wars," but I cannot. I have been banned there. Ed Brayton has just posted an article there -- "Good Ol' Larry Fafarman" -- that brazenly brags about banning me and that ridicules me for thinking that he might have the decency to change his mind by considering at least some of my comments for posting. However, he didn't carry out his threat to post a link to this blog -- apparently he is afraid to do that. The bloggers and their handpicked commenters on Panda's Thumb and Dispatches from the Culture Wars congratulate each other when they easily win debates after opposing arguments have been censored.