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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.

Sunday, May 21, 2006

Using FRCP Rule 12 to moot Dover lawsuit

Discussions on the following webpages have already shown conclusively that the Dover school board's failure to repeal the ID policy in December is inexcusable --

(1) "Two-timing new members of Dover school board" on this blog

(2) The thread under the post Dover C.A.R.E.S. -- a wolf in sheep's clothing" on this blog

(3) "Did Dover Care About Taxpayer Money? A Response to Critics" on Evolution News & Views

(4) "Ed Brayton wrong again on Dover mootness issue" on this blog

(5) "Good Ol' Ed Brayton, Part 2" on this blog

Defenders of the Dover school board have been reduced to arguing that the claim for nominal damages -- $1 per plaintiff -- would have prevented Judge Jones from declaring the lawsuit to be moot! What a joke!

To gild the lily, I am now going to show how the school board could have applied Federal Rules of Civil Procedure (FRCP) Rule 12 in an action seeking dismissal of the Dover lawsuit on grounds of mootness.

FRCP Rule 12(b) says --
.....the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2)...., (3)...., (4)....., (5)...., (6) failure to state a claim upon which relief can be granted, (7) ......

......If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, ....

In the context of the Dover lawsuit, the "pleading" in the above rule was the original complaint of the plaintiffs. The new Dover school board could have repealed the ID policy prior to judgment and presented this repeal as a matter "outside" the complaint ("pleading") and then asked for a summary judgment dismissing the complaint on the grounds that as a result of the repeal the complaint failed to "state a claim upon which relief can be granted." One of the problems here is that under the above FRCP Rule 12(b) the court may exclude "matters outside the pleading," but it could be argued that the question of whether repeal of the ID policy moots the lawsuit is a matter that should be decided in the summary-judgment phase rather than by arbitrary exclusion of the repeal from consideration. There is one other problem, and that is that motions for defenses under FRCP Rule 12 are normally restricted to the first few weeks of a case, but FRCP Rule 12(h)(2) says that the preceding motion asserting defense (6) may be made "at the trial on the merits": "A defense of failure to state a claim upon which relief can be granted......may be made......at the trial on the merits", and under the legal definition of "trial," the trial period extends until the final judgment or verdict. Also, Rule 56, concerning summary judgments, allows defendants to immediately move for summary judgment with or without supporting affidavits.

There is nothing in the FRCP that says that a complaint that initially "state[s] a claim on which relief can be granted" cannot later, as the result of some event or discovery in the course of the trial, fail to state such a claim. In fact, it is obvious that FRCP Rule 12(h)(2) above, which extends until final judgment the time available for raising the defense that the complaint fails to state such a claim, was written for the express purpose of dealing with an event or discovery that could justify dismissal of a case at any time during a trial. In fact, it is surprising that FRCP Rule 12(h)(2) is not invoked more often both by defendants and sua sponte by judges.

The nice things about Rules 12(b) and 12(h)(2) are that they provide a formal means of mooting the case and a step-by-step procedure that Judge Jones would have been required to follow in dealing with the board's motion to dismiss the suit. Judge Jones could not have just dismissed the board's motion out of hand on the grounds that such a motion was irregular. He would have had to justify, for example, a decision to "exclude" repeal of the ID policy from consideration as a possible basis for dismissing the suit by summary judgment. And if he could not find reasonable grounds for excluding the repeal of the ID policy, then he would have been required to make the summary judgment. This judgment could either be a dismissal of the suit or -- pursuant to FRCP Rule 56 (d) (Case Not Fully Adjudicated on Motion) -- a decision to proceed to a judgment on the merits of the suit.

Sound farfetched? Not at all -- my proposal follows FRCP Rule 12 to the letter. Certainly my proposal is a lot less farfetched than, say, the actual attempt to use anti-racketeering laws against abortion clinic demonstrators (LOL). The Supreme Court has ruled that litigants may take advantage of a law or rule that was not intended to benefit them. However, it is obvious that the above provisions of Rule 12 were intended to benefit defendants seeking to moot a lawsuit on the basis of an event or discovery occurring at any time during the course of a trial.

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26 Comments:

Anonymous Anonymous said...

From an article in the York Daily Record (via link from your blog):

Perhaps intelligent design should be added to the social studies curriculum, candidate Bryan Rehm said. It's a current event, he said. Whether it belongs in the district's biology class is up to a judge, Rehm said.

If elected, the new board members would ensure public participation in decisions affecting the district, they said.

Considering these statements, why would this school board, which had only been seated prior to the judge's decision, be expected to act quickly to remove the policy (the only thing that could have been the horrible argument for mootness (not just yours, also the DI's) even relevant)?

One, they accept that they are not certain of ID's classroom relevance and most importantly, they sought to have the community involved in any decision. The community was not involved in the decision of the previous school board to adopt the ID policy. The opinion of the only experts -- the school's science teachers -- were completely ignored and the school district's lawyer warned them about the possiblity of a lawsuit that they would lose. This is not community participation. It is the exact opposite. To call an ad hoc meeting, call for discussion and a vote for something not even on the agenda would go against the principles that guided their decision to be involved in the school board.

Furthermore:

""The candidates - half of whom are Republican, the other half Democrat - agreed they did not seek school board seats solely because of the intelligent design issue, candidate Bernadette Reinking said.

"We're looking to build a better community," she said.>>>>>>>>>>>>>>>>>

and

""People have incorrectly labeled Dover CARES as the group against intelligent design, candidate Terry Emig said.

The candidates also said the school board race has been bitterly fought. They criticized the incumbents for recently mailing a letter to some Dover residents suggesting Dover CARES supports the American Civil Liberties Union.

"I'm very angry. We're not involved with the ACLU," candidate Phil Herman said. "I would like to see (the incumbents) bring out proof that we are.">>>>>>>>>>>>

Yes, there were people in Dover who supported the policy (besides those on the school board). But poll numbers doesn't make it science -- otherwise evolution would still not be taught in most schools in the US (which is sadly the case regardless).

And to change policy without appropriate discussion would have been undemocratic -- community involvement = democracy.

Never mind that the argument about mootness is, well, moot, to place the blame for the adverse judgment on the new school board for the policy of the old is ridiculous. The old school board was to blame, 100% (well, those who supported the adoption of the ID policy, for whatever reason they had, none of which were legitimate or at least constitutional). Sorry

Manuel

Monday, May 22, 2006 9:40:00 AM  
Blogger Colin said...

Discussions on the following webpages have already shown conclusively that the Dover school board's failure to repeal the ID policy in December is inexcusable.

For “inexcusable,” read “of no legal importance, because the case could not have been mooted.” Again, Larry, just announcing that you’ve proven your case doesn’t excuse your total lack of any evidence or legal support for your wild theories.

And do you really want to be pointing readers to your spat with Brayton? You don’t have to be a lawyer to see the breathtaking inanity of your contention that attempting to amend a complaint is the same as actually amending it.

Defenders of the Dover school board have been reduced to arguing that the claim for nominal damages -- $1 per plaintiff -- would have prevented Judge Jones from declaring the lawsuit to be moot! What a joke!

Defenders of the board, the Supreme Court, the Tenth Circuit, the Sixth Circuit, the Third Circuit (binding Judge Jones), every case in the past thirty years to have ruled on the issue, and even Judge McConnell, who like you doesn’t like the rule but unlike you admits that it exists.

To gild the lily, I am now going to show how the school board could have applied Federal Rules of Civil Procedure (FRCP) Rule 12 in an action seeking dismissal of the Dover lawsuit on grounds of mootness.

This is the signal for the audience to grab their hip-boots and goggles. It’s a flash-flood of crazy.

Rather than citing the rule, I’ll just point out that FRCP 12(b)(6) is a very common grounds for dismissal. Almost any lawyer can tell you what a 12(b)(6) motion is. If the plaintiff’s complaint fails to state any claim upon which relief can be granted, the case should be dismissed. For example, if your only claim is for money damages but you’ve only sued a state government immune from such damages, you’re asking for a 12(b)(6) dismissal: you have not stated a claim upon which relief could be granted.

The problem with Larry’s argument is that he’s asserting that the defendants should have submitted a 12(b)(6) motion, then argued that they could assert mootness as part of that motion, which the court could have treated as a motion for summary judgment. But this presupposes that mootness was a valid argument, and it was not - the plaintiffs had a live claim for damages. They had asserted a claim upon which relief could be granted, and the district court could not have granted a 12(b)(6) motion. I’m not sure if the court would have treated the matter as a motion for summary judgment, as Larry suggests; I doubt it would get that far.

Larry’s whole argument here seems to be that the plaintiffs could have made their frivolous motion through FRCP 12(b)(6). But he hasn’t addressed the frivolity of the underlying claim. It doesn’t matter how you present a motion that has no legal validity: submitting it under a particular rule isn’t going to make it persuasive.

The bottom line is this: The plaintiffs had a cause of action for damages. There is no case that I have found in the past thirty years in which such a claim was mooted. The Supreme Court’s statements on the matter suggest that such a claim cannot be mooted. The Third Circuit’s precedent indicates that such a claim cannot be mooted. Even Judge McConnell of the Sixth Circuit, who thinks that such claims should be mootable, admits that they are not, and cannot find any court within the past three decades that finds otherwise.

The Kitzmiller plaintiffs stated a claim upon which relief could be granted, and nothing the board could have done would have changed that.

Monday, May 22, 2006 9:58:00 AM  
Blogger Larry Fafarman said...

Colin said ( 5/22/2006 09:58:18 AM ) --

>>>>>do you really want to be pointing readers to your spat with Brayton? You don’t have to be a lawyer to see the breathtaking inanity of your contention that attempting to amend a complaint is the same as actually amending it.<<<<<

Yes, I really want to point readers to my spat with Brayton! I admitted error here, but now I think that there was really nothing wrong with my statement that the plaintiffs amended the complaint, because whether the judge accepted the amendments was another matter. Loosely speaking, "amend" means to "add," and yes, the plaintiffs did add a request for nominal damages (even though the technical meaning of "amend" in the FRCP is a successful amending). On the other hand, Brayton was completely wrong when he said, "There was no request for nominal damages in the UNC case." And then he contradicted himself when he called me "dense" because I didn't "see the difference between a judge not allowing an amended complaint to ask for damages after the grievance has been redressed and a judge not mooting a case in which nominal damages had been part of the original complaint." Well, the Judge in the UNC case must have also been dense, because he never said that it made any difference to him when or where the claim for nominal damages was added -- he only said that he was not going to continue the case just to continue a claim for nominal damages. You quibble over trivia while missing the important points -- you can't see the forest for the trees.

>>>>>Rather than citing the rule, I’ll just point out that FRCP 12(b)(6) is a very common grounds for dismissal. Almost any lawyer can tell you what a 12(b)(6) motion is.<<<<<

Yes, I know that, and I never said or implied otherwise. However, there may be certain details about Rule 12(b)(6) that many attorneys might not be aware of --

(1) The defendant may present matters outside the complaint, e.g., a repeal of the ID policy, and if that matter is not excluded by the court, then the case proceeds to a summary judgment.

(2) Under Rule 12(h)(2), the Rule 12(b)(6) defense may be asserted at any time prior to final judgment, even if the judge previously rejected this defense, and the defense may be based on any matter arising during the course of the trial.

>>>>>I’m not sure if the court would have treated the matter as a motion for summary judgment, as Larry suggests; I doubt it would get that far.<<<<<

You're "not sure"? You "doubt" ? As I said, you have lost a lot of confidence.

To avoid going to summary judgment, the judge would have had to "exclude" from consideration the repeal of the ID policy. But as I pointed out in my opening post here, it could be argued that the question of whether repeal of the ID policy moots the lawsuit is a question of such great importance that it should be decided in the summary-judgment phase rather than by arbitrary exclusion of the repeal from consideration. I have already shown that in Buckhannon, the lawsuit was mooted by voluntary cessation by the government, and the plaintiff was denied attorney fees. In "Did Dover Care About Taxpayer Money? A Response to Critics," linked in my opening post, Michael Francisco gave other examples of cases that were mooted by voluntary cessation by the government.

>>>>>submitting it under a particular rule isn’t going to make it persuasive.<<<<<

The idea is that here is a formal procedure that Judge Jones would have had to follow. He couldn't have just taken the board's motion to dismiss and said "this is bullshit" and thrown it out the window. He might have had to make a formal summary judgment on the issue. And citing the applicable provisions of FRCP Rule 12 would have given the board's motion the imprimatur of authority. It would have been far better than going in there without citing any FRCP rule at all.

>>>>> There is no case that I have found in the past thirty years in which such a claim was mooted.<<<<<

Wrong. You just found one -- that new UNC case, Alpha Iota Omega Christian Fraternity v. Hamm And just because you have not found other such cases does not mean that they do not exist. I suspect that there are probably lots of cases where a nominal-damages claim was quietly mooted because all other claims were moot and everyone understood that nominal damages could not be granted in the absence of a grant of some other claim. And you have presented no example of any case where nominal damages were given as a consolation prize to a plaintiff who had lost on all other claims (contrary to what the courts claimed, Farrar was not such a case).

>>>>> The Supreme Court’s statements on the matter suggest that such a claim cannot be mooted.<<<<<

"Suggest" is right -- the SC precedent you cited is a classic quote mine. And though a mere "suggestion" from the SC might have some validity if that suggestion made sense, in this case it makes no sense at all.

>>>>>The Third Circuit’s precedent indicates that such a claim cannot be mooted.<<<<<

I disagree, but even if it is true, it does not excuse the Dover board.

>>>> Even Judge McConnell of the Sixth Circuit, who thinks that such claims should be mootable, admits that they are not, and cannot find any court within the past three decades that finds otherwise.<<<<<

That's Judge McConnell of the 10th Circuit, not the 6th Circuit. And he only said that the 6th and 9th Circuits solidly supported the 10th Circuit on this issue. The 2nd Circuit arguably supported the 10th because of the latest 2nd Circuit precedent. He said that the 7th Circuit was leaning away from the 10th on this issue, and that "other" circuits said that a case is not mootable where there are claims for both nominal and compensatory damages, implying that a claim for nominal damages alone is not enough.

I have been over some of these things so many times already. You keep bringing back issues that I thought I refuted a long time ago.

Anyway, as I said, this is just moot court here -- these Monday-morning arguments cannot exonerate the Dover school board.

Monday, May 22, 2006 3:36:00 PM  
Blogger Larry Fafarman said...

Anonymous said ( Monday, May 22, 2006 9:40:30 AM ) --

>>>>>From an article in the York Daily Record (via link from your blog):

Perhaps intelligent design should be added to the social studies curriculum, candidate Bryan Rehm said. It's a current event, he said. Whether it belongs in the district's biology class is up to a judge, Rehm said.

If elected, the new board members would ensure public participation in decisions affecting the district, they said.


Considering these statements, why would this school board, which had only been seated prior to the judge's decision, be expected to act quickly to remove the policy?<<<<<

Considering the 7-figure liability for attorney fees that the school district was facing, I would think that Job #1 would have been to get the ACLU, Pepper Hamilton, AUSCS et al. off the back of the school district first, and then worry later about coming up with an alternative to the ID policy. Judge Jones 139-page opinion is not worth the paper it's printed on, let alone $1 million -- and it might have been more (the original bill was over $2 million). This was a clear emergency. As for public participation, the issues had already been debated to death in the community for at least a year, but if the board wanted still more community input, a special or emergency meeting for early December could have been scheduled. The new board members, who were elected in close races, presumably owed their seats to voters who had supported them primarily because of concern about the cost of the lawsuit, and then these new board members turned around and shafted those voters.

>>>>>Yes, there were people in Dover who supported the policy (besides those on the school board). But poll numbers doesn't make it science -- otherwise evolution would still not be taught in most schools in the US (which is sadly the case regardless). <<<<<

I feel that the real legal issue was not whether ID is science, but whether ID is religion. There is separation of church and state, but no separation of bogus science and state.

Monday, May 22, 2006 6:06:00 PM  
Anonymous Anonymous said...

"I feel that the real legal issue was not whether ID is science, but whether ID is religion. There is separation of church and state, but no separation of bogus science and state."

Not sure how this responds to my point, but I'll reply regardless.

1) ID isn't science because it doesn't follow the rules of science (Behe admitted this on the stand, under oath, for what it's worth). As Jones noted in his ruling, it violated three different rules, when only one was necessary for it not to be science.

Now it's established that this isn't science, despite using "scientific" apparatuses, tools, discussions, etc.

2) While ID doesn't reject evolution per se, it argues that some products of evolution could not have happened by themselves, that is, without an outside intelligence (hence the name, intelligent design). But how does this happen? This cannot be answered scientifically because it violates the rules of science -- it requires a supernatural designer to intervene and "make things right."

One way of looking at it: God made the universe (evolution cannot deny this assertion, nor can it affirm it) with the rules we have learned about through science (a view that we see popularized in the Enlightenment). Now, ID says some of the complexity of life forms cannot come about because of these rules. How then are things rectified? Only with the intervention of the designer. This is not science -- it is religion because it invokes the supernatural. Does it belong to a particular religion? No, or at least, probably not. But it doesn't have to be the belief system of any institutionalized relgious view to be religious; it merely has to invoke something that is inherently religious.

In other words, most ID "thought" (I'm being generous with this term here) allows for most of evolution to be correct. But it requires that a designer, one that Behe and others clearly acknowledge to be God, intervene at key periods during the timeline of life on our planet. Think of the first single-cell organisms; then after millions or billions of years the Designer comes to a terrible realization: "these organisms cannot continue their evolution unless I give them the flagellum." After providing this item at the proper time, science takes over, God takes a break, and things continue until... "Oh My Self, I forget to give them the ability to clot blood" or "How are they going to see if I don't give them the ability to have an eye. Much better than...." This is religion -- no, it is not the doctrine of a single church, but it is a religious view nonetheless.

Manuel

Monday, May 22, 2006 7:20:00 PM  
Blogger Colin said...

Yes, I really want to point readers to my spat with Brayton! I admitted error here, but now I think that there was really nothing wrong with my statement that the plaintiffs amended the complaint, because whether the judge accepted the amendments was another matter. Loosely speaking, "amend" means to "add," and yes, the plaintiffs did add a request for nominal damages (even though the technical meaning of "amend" in the FRCP is a successful amending).

There's no “loosely speaking” here, moron. There are strict and technical rules governing whether an amended complaint may be filed. Those are the rules the district court addressed in the opinion that, charitably speaking, you never read. (Less charitably speaking, you read it and, hoping that no one else would, decided to lie through your teeth and hope that no one called you on it.) The plaintiffs did not add a cause of action for nominal damages. They asked to add one, and the court refused. Whatever effects that cause of action might have had on the case—and the judge clearly understands that one of those effects would be to preclude mootness—were never a factor because the cause of action was never added. You are, once again, making up new facts as you go along because the actual facts don't support your preconceptions.

On the other hand, Brayton was completely wrong when he said, "There was no request for nominal damages in the UNC case." And then he contradicted himself when he called me "dense" because I didn't "see the difference between a judge not allowing an amended complaint to ask for damages after the grievance has been redressed and a judge not mooting a case in which nominal damages had been part of the original complaint." Well, the Judge in the UNC case must have also been dense, because he never said that it made any difference to him when or where the claim for nominal damages was added -- he only said that he was not going to continue the case just to continue a claim for nominal damages. You quibble over trivia while missing the important points -- you can't see the forest for the trees.

The judge in the UNC case said that he would not allow an amended complaint. He also said that if did allow the amendment, the case would not be mooted. You are conflating his statements because you believe that a request for an amendment somehow, magically, has the same effect as a successful amendment. That is so stupid that it makes my eyes hurt just reading it.

Yes, I know that, and I never said or implied otherwise. However, there may be certain details about Rule 12(b)(6) that many attorneys might not be aware of --

Larry, do you really think that you've discovered lost parts of FRCP 12 that attorneys were unaware of? Grow up.

Once again, you completely full of shit on the mootness issue. No judge would take such a baseless claim seriously, no matter what rule it was filed under. I don't know or care if the judge would call his denial a denial of a motion for summary judgment, or a denial of a motion for mootness. There is no legal merit to the notion that the case was mootable. No case in the Third Circuit supports that argument, and several—binding on Judge Jones—indicate that a cause of action for damages, including for nominal damages, is not mootable.

>>>>> There is no case that I have found in the past thirty years in which such a claim was mooted.<<<<<

Wrong. You just found one -- that new UNC case, Alpha Iota Omega Christian Fraternity v. Hamm


No, Larry. Only live claims can be mooted. There was no live claim for nominal damages in that case. Just a request to add one. Which the judge denied. A request to add a cause of action is not the same thing as the cause of action itself. I've long since lost any respect for you, but now I'm feeling actual contempt – your desperate need to be right, even if it means constantly lying about the facts, is despicable.

And just because you have not found other such cases does not mean that they do not exist. I suspect that there are probably lots of cases where a nominal-damages claim was quietly mooted because all other claims were moot and everyone understood that nominal damages could not be granted in the absence of a grant of some other claim.

Then find some. Find one.

And you have presented no example of any case where nominal damages were given as a consolation prize to a plaintiff who had lost on all other claims (contrary to what the courts claimed, Farrar was not such a case).

I have already cited several examples of cases in which the plaintiff was awarded only nominal damages, and nothing else. Your rebuttal seems to be that those cases also involved declaratory relief. But declaratory relief is not the same thing as nominal damages. Read McConnell's opinions again. Sigh. Lie after lie after lie after lie after lie... I used to think that at some point it would be easier for you to engage the real world with facts and examples to support your arguments, but it looks like when there are no such facts, it's easier for you to keep pretending and lying. Fortunately, the further you dig yourself in to your pile of dung (like arguing that a denied request for an amendment is the same thing as an amendment), the less likely it is that anyone is going to believe anything that you have to say on any issue.

"Suggest" is right -- the SC precedent you cited is a classic quote mine. And though a mere "suggestion" from the SC might have some validity if that suggestion made sense, in this case it makes no sense at all.

It is a flat-out accurate statement of the law, which expresses why Buckhannon is not applicable to cases for damages. But again, you can't address the law squarely on its face, because that would be devastating to your arguments. So you bury your head in the sand, and insist, “Oh, that nasty Supreme Court just doesn't know what it's talking about! That's just a quote mine!” But it's not, is it, Larry? It's explicit and clear: A cause of action for damages cannot be mooted by a defendant's change in behavior. You have nothing – no cases, no treatises, nothing – to support your insistence that the statement magically doesn't apply to nominal damages. Nor do you have anything to refute the Third Circuit's precedent, other than—again—magical thinking and handwaving.

>>>>>The Third Circuit’s precedent indicates that such a claim cannot be mooted.<<<<<

I disagree, but even if it is true, it does not excuse the Dover board.


I would love to hear your explanation of this. In other words, “Even if Judge Jones was bound and obligated to deny a motion for to moot the case, the Dover board erred by not making the motion.” There is no canon of ethics anywhere that requires an attorney to file frivolous motions.

That's Judge McConnell of the 10th Circuit, not the 6th Circuit.

Thanks.

And he only said that the 6th and 9th Circuits solidly supported the 10th Circuit on this issue. The 2nd Circuit arguably supported the 10th because of the latest 2nd Circuit precedent.

The latest Supreme Court precedent? Why don't you give us the date on that case, Larry? Because by my lights, the only 2nd Circuit case that states the proposition for which he cites it is three decades old. In other words, predating Buckhannon, Farrar, and the Supreme Court cases the second concurrence cited in opposition to McConnell, which we haven't even gotten to yet.

He said that the 7th Circuit was leaning away from the 10th on this issue, and that "other" circuits said that a case is not mootable where there are claims for both nominal and compensatory damages, implying that a claim for nominal damages alone is not enough.

But none of those circuits ever actually held that claims for nominal damages are mootable, did they? That's because they don't think that they are. McConnell makes a good argument for what the law should be, but has nothing to show that (and does not even argue that) it is what the law is. He is much more honest than you, Larry.

Anyway, as I said, this is just moot court here -- these Monday-morning arguments cannot exonerate the Dover school board.

Sigh. Again. Showing that the board could not possibly have mooted the case exonerates it of your baseless accusations that it was an error to fail to make the attempt. Do you understand what “Monday morning” means? Your accusations are “Monday morning.” Our refutations are “Monday morning.” It's just a retrospective analysis.

I have been over some of these things so many times already. You keep bringing back issues that I thought I refuted a long time ago.

You think lots of things that are wrong, Larry.

Monday, May 22, 2006 9:54:00 PM  
Blogger Larry Fafarman said...

Colin said ( 5/22/2006 09:54:23 PM ) --

>>>>>The plaintiffs did not add a cause of action for nominal damages. They asked to add one, and the court refused.<<<<<

The plaintiffs did not file a complaint. They asked to file one, and the court refused.

>>>>> He also said that if did allow the amendment, the case would not be mooted.<<<<<

Be careful what you say -- you mean if he did allow the attempted amendment.

Of course the case would not have been mooted if he had allowed any of the attempted amendments! But he indicated that the reason why the nominal damages claim was moot was that the other claims in the motion to amend were moot (as well as the claims in the original complaint): "...... 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."

>>>>>Larry, do you really think that you've discovered lost parts of FRCP 12 that attorneys were unaware of?<<<<<<

Yes, I really think that. When I pointed out these parts of FRCP Rule 12 on Ed Brayton's blog and made an interpretation that is similar to the interpretation that I made here, a friend of Ed who teaches constitutional law responded with nothing but insults. He did not even attempt to give any reasons why my interpretation did not apply. He just hid behind his credentials.

>>>>>Only live claims can be mooted. There was no live claim for nominal damages in that case. Just a request to add one.<<<<<

Wrong. A judge can declare the claims in a complaint to be moot even before he accepts the complaint. In fact, mootness is one of the reasons for rejecting complaints. A claim does not have to be "live" before a judge can reject it as moot.

OK, let's just make this a two-step process. Let's just assume that the judge tentatively accepted the motion to amend's claims in order to make those claims "live" so that he could rule on whether or not they were moot. He then decided that these claims were moot. Sheeesh

>>>>>Once again, you completely full of shit on the mootness issue. No judge would take such a baseless claim seriously, no matter what rule it was filed under. I don't know or care if the judge would call his denial a denial of a motion for summary judgment, or a denial of a motion for mootness.<<<<<

Under FRCP Rules 12(b)and 12(h)(2), in order to deny the motion for summary judgment, the judge would have had to totally "exclude" the ID policy's repeal from consideration as a possible reason for ever dismissing the case as moot. And if he did not so exclude the ID policy's repeal, then the case would have had to go to summary judgment.

>>>>>“Oh, that nasty Supreme Court just doesn't know what it's talking about! That's just a quote mine!” But it's not, is it, Larry?<<<<<<

It's a "quote mine." It is just a single ambiguous sentence that is the sole basis of your claim that SC precedent supports your position, and even you have admitted that the sentence is just dictum. If the sentence had the importance which you attach to it, I think that the SC would have elaborated a little.

>>>>But none of those circuits ever actually held that claims for nominal damages are mootable, did they?<<<<<

No, but according to Judge McConnell, no circuits other than the 2nd, 6th, 9th, and 10th have held that claims for nominal damages are not mootable. And some of the circuits have implied that claims for nominal damages are mootable.

>>>>>I suspect that there are probably lots of cases where a nominal-damages claim was quietly mooted because all other claims were moot and everyone understood that nominal damages could not be granted in the absence of a grant of some other claim.

Then find some. Find one.<<<<<<

I don't have access to Westlaw, so I cannot search for such stuff. But if -- as you say -- a case with a claim for nominal damages could not be mooted, then everyone would be claiming nominal damages and no case could be mooted. That was one of the points that Judge McConnell made.

>>>>>Showing that the board could not possibly have mooted the case exonerates it of your baseless accusations that it was an error to fail to make the attempt.<<<<<

For starters, you have not shown that the board could not possibly have mooted the case. And even if you had, it still would not exonerate the board because presumably none of this information was available to the board when it made its decision. And the board did not even discuss the issue at its Dec. 5 meeting or schedule a special or emergency meeting to discuss the issue. Everyone knew that early December was the last chance to try to moot the case by repealing the ID policy. At the least, the board acted very irresponsibly.

>>>>I've long since lost any respect for you, but now I'm feeling actual contempt<<<<<

Go ahead -- feel contempt. What matters is that I have respect for myself, and I am sure that a lot of other people have respect for my position here.

>>>>>You keep bringing back issues that I thought I refuted a long time ago.

You think lots of things that are wrong, Larry.<<<<<<

Correction. I should have said that I refuted your arguments, period -- not that I thought that I refuted them. After dealing with Loony Flake on Panda's Thumb, I should have learned to never say "I think."

Tuesday, May 23, 2006 7:29:00 AM  
Anonymous Anonymous said...

>>>>>> He also said that if did allow the amendment, the case would not be mooted.<<<<<

>>>>>>Be careful what you say -- you mean if he did allow the attempted amendment.<<<<<<

>>>>>Of course the case would not have been mooted if he had allowed any of the attempted amendments! But he indicated that the reason why the nominal damages claim was moot was that the other claims in the motion to amend were moot (as well as the claims in the original complaint): "...... 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."<<<<<<<<<

Larry, this is why you get booted off other boards (I haven't read a single post of yours at PT, though after reading you inane statements here and at Ed's site, I can see why): Colin has shown that you were wrong, you agree with him, then twist logic to support your view.

The statement ""...... the court in its discretion will not allow the continuation of a lawsuit merely to allow Plaintiffs to seek nominal damages," refers to the attempt by the Plaintiffs to seek monetary damages thorugh the attempted amendment that the judge refused -- it was not part of the original complaint (if it had been, then the case would not have been mooted). You are not a lawyer; you have minimal familiarity with the law. Accept what people who have more knolwedge than you on this subject have to say. It doesn't mean you're dumb -- quite the opposite. Lyotard writes in the beginning of The Postmodern Condition than an expert knows what he knows and what he doesn't know -- a philosopher doesn't (or can't) make that distinction. You are acting like nothing more than a fourth- or fifth-rate philosopher here (and elsewhere), making things harder than they are.

Oh yeah, did you see the YDR article in which the defense attorney's were against any attempt to moot the case? So it was okay to accept their advice when they thought the ID-statement-policy was constitutional but it's not okay when they argue against mootness?

Manuel

Tuesday, May 23, 2006 8:34:00 AM  
Blogger Larry Fafarman said...

Reply to Anonymous ( 5/23/2006 08:34:14 AM ) --

>>>>>> Colin said: He also said that if did allow the amendment, the case would not be mooted.

Larry said: Be careful what you say -- you mean if he did allow the attempted amendment. Of course the case would not have been mooted if he had allowed any of the attempted amendments! But he indicated that the reason why the nominal damages claim was moot was that the other claims in the motion to amend were moot (as well as the claims in the original complaint): "...... 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."

Anonymous says: Larry, this is why you get booted off other boards<<<<

Aha, the truth is out! I get booted off boards not because I break any of the rules, but because the bloggers disagree with what I say.

BTW, Anonymous, why do you sign your comments "Manuel," but post under "Anonymous" ?

>>>>Colin has shown that you were wrong, you agree with him, then twist logic to support your view.<<<<<

I did not "agree" with Colin here -- I only sarcastically pretended to agree with him when I used the term "attempted amendment."

>>>>The statement ""...... the court in its discretion will not allow the continuation of a lawsuit merely to allow Plaintiffs to seek nominal damages," refers to the attempt by the Plaintiffs to seek monetary damages thorugh the attempted amendment that the judge refused -- it was not part of the original complaint.<<<<<

I of course agree that it was not part of the original complaint -- but the judge never said that that was a factor in his decision. Do you think if it had been a factor, the judge might not have mentioned it? Why would a judge not try to give as many reasons for his decision as he could? His above statement implies that his decision would have been the same even if the claim for nominal damages had been in the original complaint.

>>>>You are not a lawyer<<<<<

I agree.

>>>>you have minimal familiarity with the law<<<<

I disagree.

>>>>Accept what people who have more knolwedge than you on this subject have to say.<<<<<

Never. On some subjects that I do not understand, like advanced theories of physics, I am obliged to accept the opinions of "experts" -- but the law is different. As I said, it is not for nothing that I have named this blog after the slogan, "I'm from Missouri -- you'll have to show me."

Are you a lawyer? What makes you think that you know enough about the law to take sides in this debate?

>>>>> Lyotard writes in the beginning of The Postmodern Condition than an expert knows what he knows and what he doesn't know -- a philosopher doesn't (or can't) make that distinction.<<<<<<

Since a lot of Darwinism is just philosophy, I agree -- a philosopher doesn't (or can't) make that distinction.

>>>>>Oh yeah, did you see the YDR article in which the defense attorney's were against any attempt to moot the case? So it was okay to accept their advice when they thought the ID-statement-policy was constitutional but it's not okay when they argue against mootness?<<<<<<

You don't have your facts straight. It was the old school board rather than the new school board that accepted the advice of the defense attorneys from the Thomas More Law Center. The lead defense attorney from the TMLC, Richard Thompson, was already gone at the Dec. 5 board meeting and was replaced by the board's previous solicitor, Stephen Russell. Thompson later said that he was disappointed by the board's decision to not appeal because "the case had been prepared to be appealed to the US Supreme Court." The only unbiased legal advice that the board got was from a "real estate" attorney who favored immediate repeal of the ID policy and a "school board" attorney who opposed it.

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

BTW, I would like to tell the following little story about my experience with the courts. Colin and Kevin Vicklund, please listen up! I read and responded to a lot of your stuff, even though I completely disagreed with it -- now please return the favor.

California's $300 "smog impact fee" on particular out-of-state vehicles, which was eventually ruled unconstitutional by the state courts, was entirely based upon and owed its existence to the state's unique position under federal auto emissions laws & regulations -- a federal law allows the US Environmental Protection Agency to grant California a "waiver" from federal pre-emption of auto emissions standards, and the EPA has granted California many such waivers. I filed suit against the fee in federal court, with California and the US EPA as defendants. I argued, among other things, that the fee was a violation of federal auto emissions laws & regulations. In its answer to my complaint, California claimed immunity from a state-tax suit in federal court, citing the 11th Amendment and the "Tax Injunction Act," which generally bars state-tax suits in the federal courts. I did not know how to do legal research at the time, but I just luckily happened to stumble upon the following exception to state immunity in federal courts, and I argued that California had lost this immunity here because the state had "[left] the sphere that is exclusively its own" when it enacted a tax that was entirely based upon, and which owed its existence to, the state's unique position under federal auto emissions laws & regulations:

"A State's immunity from suit by an individual without its consent has been fully recognized by the Eleventh Amendment and by subsequent decisions of this Court. But when a State leaves the sphere that is exclusively its own and enters into activities subject to congressional regulation, it subjects itself to that regulation as fully as if it were a private person or corporation." Parden v. Terminal Railway of Alabama Docks Dept., 377 US 184 (1964) (emphasis added)

Well, guess what? California's attorney did not file a reply brief -- he had no answer to my argument! And guess what? The judge dismissed the suit without stating any opinion at all -- even though the state's attorney could not even answer my argument! I should have won the point by default!. I later learned from a lawyer acquaintance that this judge -- TJ "Mad" Hatter -- had a bad reputation for deciding cases without issuing opinions. I was so pissed off -- and rightly so -- that I appealed all the way to the US Supreme Court -- twice! Of course, no court ever ruled on that argument that I made. Most of the opinions were blank or trivial. So I am fed up with this crap from ignoramuses like you who think that they know more than I do about how the courts operate. Lately I have been able to get out of jury duty by telling judges that I am biased because of my well-founded prejudice against judges and attorneys -- it works every time.

Tuesday, May 23, 2006 4:34:00 PM  
Anonymous Anonymous said...

Monday's attempt by outgoing Dover Area School Board member David Napierskie to save the district from legal fees is not as simple as it sounded, said the district's attorney Richard Thompson.

Napierskie asked the board to revoke the curriculum change that includes intelligent design, agree not to add it again and ask their legal representation, Thomas More Law Center, to file a motion to dismiss the lawsuit against them and pay $1 in damages.

Napierskie said he believes the action would make the case moot and prevent the district from paying legal fees.

"It's not as simple as let's dismiss the case and walk away with paying $1," said Thompson, who spoke with Napierskie prior to his motion. "By merely dismissing the case, even if that were agreed upon, would not eliminate the plaintiffs' ability to ask for reasonable attorney fees."

Plaintiffs' attorneys declined to comment.

Kevin Alan Lewis, assistant professor of theology and law at the Talbot School of Theology, Biola University in California, said the defense could file a motion to dismiss on the basis that there is no controversy because the new board doesn't favor the curriculum.

But despite the implications of the election, the judge could say the policy, one which can change often, falls under the possibility of escaping review and not accept a motion to dismiss - much like the nine-month constraint surrounding abortion cases, he said.

Judge John E. Jones III said the election results don't figure into his ruling.

Thompson said that the judge is making his decision based on the board's actions from last year when the plaintiffs allege a constitutional violation and that needs to happen.

"The case was tried with the assumption that regardless of who won or lost an appellate court and maybe ultimately the (U.S.) Supreme Court would take a look at it and change the law," Thompson said. "If they don't appeal, what they've done is short-circuit the entire legal strategy that was put in place by the Thomas More Law Center."


There you have it -- comments from Richard Thompson, lead attorney for the defnense, from the Thomas More Law Center, stating that he didn't want a dismissal -- not only did he see it as a viable way of getting out of paying damages, it was part of his strategy (he wanted to appeal). (If you don't believe me that this Richard Thompson is the TMLC attorney, look at other articles from the YDR (where his name is mentioned in most articles), the court records, or, obviously as well, the TMLC web site -- I'm sure his name is mentioned there!)

As much as I disrespect ID and the Dover supporters of the policy (well, at least those on the school board), if the basis on which they sought to appeal was a problem with the Lemon test in that it doesn't clearly delineate between a religious or non-religious motivation from a religous person, I wouldn't reject that argument in general (in the Dover case, that wasn't an issue, but it may be for other matters).

I post as Anonymous because I'm not interesting in setting up an account; I decided to sign my name so that you would know whom you're responding to.

Manuel

Tuesday, May 23, 2006 6:42:00 PM  
Blogger Colin said...

I was going to skip this thread, but Larry keeps topping his own incredibly heights of ignorance. He is a Mount Vesuvius of abject idiocy, an erupting volcano of stupid. I mean, wow. Wow:

The plaintiffs did not file a complaint. They asked to file one, and the court refused.

Wow. Bolded, even. Larry, what exactly do you think happened in that case? Do you understand the difference between a complaint and an amended complaint? This is why it's so sad that Larry thinks he is competent to discuss intricate civil procedure issues. He is, in fact, less well educated than the average layperson on most issues. He picks an opinion, and convinced that it must be right, he compiles his own Gish Gallop of ignorant arguments and soundbytes. But when it comes down to the wire, Larry, you don't even understand the most basic principles.

The plaintiffs did file a complaint. It may have been (but almost certainly wasn't) written on a cocktail napkin, sufficient only under the courts' generous notice pleadings standard. But it was a complaint. What they wanted to file was an amended complaint which would have superseded that complaint. Because the court refused to allow the superseding amendment, the causes of action they wanted to add had no legal effect. The case went forward (only to be terminated) solely on the causes of action in the original complaint, not including any request for nominal damages.

>>>>>Larry, do you really think that you've discovered lost parts of FRCP 12 that attorneys were unaware of?<<<<<<

Yes, I really think that. When I pointed out these parts of FRCP Rule 12 on Ed Brayton's blog and made an interpretation that is similar to the interpretation that I made here, a friend of Ed who teaches constitutional law responded with nothing but insults. He did not even attempt to give any reasons why my interpretation did not apply. He just hid behind his credentials.


Your ignorance is exceeded only by your arrogance. Attorneys read the Rules, Larry. Law students are made to study them rigorously. Rule 12 is only a few pages long. You haven't stumbled across any forgotten or misunderstood aspect of the rule. So far, you've told me that you understand the law better than (A) the Supreme Court, (B) the Sixth Circuit, (C) the Tenth Circuit, (D) the Third Circuit, (E) three or four district court judges, and now (F) a professor constitutional law. At the risk of repeating myself, wow. It's a wonder you haven't been named to the bench yourself, Larry, being the greatest legal mind of all time, and all.

An idle question, though. Have you ever read a book about law? Not even a law book, per se, but even a book about law? It wouldn't be a bad place to start your badly-needed education. I can recommend Professor Charles Friedman's “Saying What the Law Is” as an interesting primer.

I don't have access to Westlaw, so I cannot search for such stuff. But if -- as you say -- a case with a claim for nominal damages could not be mooted, then everyone would be claiming nominal damages and no case could be mooted. That was one of the points that Judge McConnell made.

“I don't have any evidence and I'm not going to find any.” Persuasive. You have Google, and probably a library card. Law is hard, Larry, you can't just make it up and expect to persuade anyone. Read. Study. You need it. As for McConnell's concurrence, you still haven't read the second concurrence, have you?

Go ahead -- feel contempt. What matters is that I have respect for myself, and I am sure that a lot of other people have respect for my position here.

Really? Where? Hell, DaveScot is a professional sycophant, and even he seems to have abandoned your banner.

For me, I'm done with this thread. If you don't understand the difference between a proposed but rejected amended complaint and a live complaint, you're just not operating on a level where any sort of discussion can occur.

Wednesday, May 24, 2006 12:05:00 AM  
Blogger Larry Fafarman said...

Colin said ( 5/24/2006 12:05:50 AM ) --

>>>>>The plaintiffs did not file a complaint. They asked to file one, and the court refused.

Wow. Bolded, even. Larry, what exactly do you think happened in that case?<<<<<

I was being sarcastic. I was just mocking your statement, "The plaintiffs did not add a cause of action for nominal damages. They asked to add one, and the court refused." I never dreamed that you would take my above statement seriously.

>>>>>Attorneys read the Rules, Larry. Law students are made to study them rigorously. Rule 12 is only a few pages long.<<<<<<

The law students cannot remember all the details of all the rules -- there is too much detail to remember. Nor can they fully comprehend all the ways in which the rules could be applied.

Rule 12 is not a few pages long -- it is maybe about two pages of fine print.

>>>>>You haven't stumbled across any forgotten or misunderstood aspect of the rule. <<<<

I think I have. That friend of Ed who teaches constitutional law seemed completely nonplussed by my literal interpretation of Rule 12 -- an interpretation similar to what I made here. You appeared to be surprised by my interpretation but appeared to think that it is reasonable.

>>>>>Have you ever read a book about law?<<<<<

I have read a hell of a lot of books about law -- what do you think law libraries have? I just have never read a law book cover to cover, because for me there would have been no point in that. I never claimed to have a broad knowledge of the law, but in the narrow areas of the law where I specialized, I became an expert. For example, I was without question the world's foremost authority on federal legal issues concerning California's smog impact fee. I was the first to recognize that this fee, though paid on used cars, was really a new-car emissions regulation rather than a used-car emissions regulation because the fee had nothing to do with used-car emissions but was retroactively based on a car's new-car emissions certification. The distinction was important because federal pre-emption of auto emissions regulations applies to new-car regulations but not to used-car regulations.

>>>>>As for McConnell's concurrence, you still haven't read the second concurrence, have you?<<<<<

Why do you assume that? I read the second concurrence but found it unpersuasive.

>>>>>Hell, DaveScot is a professional sycophant, and even he seems to have abandoned your banner. <<<<<<

There is no evidence whatsoever that DaveScot no longer supports this blog.

>>>>>For me, I'm done with this thread. If you don't understand the difference between a proposed but rejected amended complaint and a live complaint, you're just not operating on a level where any sort of discussion can occur.<<<<<

I never said that there was no difference between the two kinds of complaints. I just said that there was apparently no difference between the two kinds of complaints so far as the judge's decision to reject the nominal-damages claim was concerned.

Well, if you are done with this thread, that is fine with me. It means that I will not have to answer any more of your drivel on this thread. Now I just wish you would stop posting your drivel on other threads here.

Wednesday, May 24, 2006 8:21:00 AM  
Blogger Larry Fafarman said...

Anonymous (Manuel) said ( 5/23/2006 06:42:32 PM ) --

>>>>>There you have it -- comments from Richard Thompson, lead attorney for the defnense, from the Thomas More Law Center, stating that he didn't want a dismissal -- not only did he see it as a viable way of getting out of paying damages, it was part of his strategy (he wanted to appeal).<<<<<

You obviously omitted the word "not, " and you meant attorney fees, not damages ($1 per plaintiff) -- you meant to say that he did not see it as a viable way of getting out of paying attorney fees.

Anyway, Thompson was obviously biased -- as you said, he wanted to appeal. The only unbiased professional legal advice that the board got on the fee-avoidance issue came from Napierskie's attorney and the board's former solicitor, Stephen Russell, who returned to the board at the December meeting.

>>>>>As much as I disrespect ID and the Dover supporters of the policy (well, at least those on the school board), if the basis on which they sought to appeal was a problem with the Lemon test in that it doesn't clearly delineate between a religious or non-religious motivation from a religous person, I wouldn't reject that argument in general (in the Dover case, that wasn't an issue, but it may be for other matters).<<<<<<

Yes, the Lemon test has some real problems, as I showed in my article, "Aptly named "Lemon test" sucks". Actually, I feel that religious motivation should not be an issue at all because different people have different motivations and what really counts is the "effect." Though the Lemon test is badly flawed, it is still widely used and was used both in the Dover case and the Cobb County textbook sticker case.

The Dover decision has a lot of flaws that could have been reviewed on appeal ( see "Traipsing into breathtaking inanity -- absurd rulings in the Dover Intelligent Design case"). Several of the new board members said that they wanted to hear Judge Jones opinion ( "Several incoming board members, including Patricia Dapp, Terry Emig and Judy McIlvaine, said they want to hear what the judge has to say in the case," http://www.ydr.com/doverbiology/ci_3223198 ), but they did not have a similar curiosity about hearing opinions from the appeals court and even the Supreme Court. An appeal would have been super-cheap compared to the cost of the district-court trial -- the TMLC would have continued to represent the board for free and the plaintiffs could charge for just a single answering brief and maybe for a short court appearance at an oral hearing if requested by the appeals court. By not trying to moot the case and then deciding to not appeal, the board got the worst of both worlds -- a $1 million legal bill and a single judge's opinion that isn't worth the paper it was printed on. I guess that one of the problems was that the new board members were afraid that a vote to appeal could have been viewed as support for the ID policy. They really screwed up royally.

>>>>>I post as Anonymous because I'm not interesting in setting up an account; I decided to sign my name so that you would know whom you're responding to. <<<<<

You don't need to set up a blogger account on www.blogger.com in order to post under a name other than "Anonymous." Just choose an identity at the bottom of the comment entry window. Registered blogger account names are shown as underlined in the headings of the comments.

Wednesday, May 24, 2006 11:31:00 AM  
Anonymous Manuel said...

A new member's impres sion: McIlvaine said the issue did come up during a board orientation and that her impression from the district's solicitor, Stephen Russell of Stock and Leader, was that "it doesn't seem that it could be turned back."

McIlvaine and Reinking said they would seek more information from Russell before making any decision.

So where did Russell give advice on the advoidance issue? I've seen nothing of the sort, as this passage from the York Dispatch suggests.

Just because advice is supposedly "unbiased" doesn't mean that it's the right advice -- maybe the real estate lawyer the outgoing board member mentioned also had an interest, whether it was a concern about the policy or about local taxes, either of those indicates a bias.

Manuel

Wednesday, May 24, 2006 5:09:00 PM  
Blogger Larry Fafarman said...

Manuel said ( 5/24/2006 05:09:47 PM ) --

>>>>>A new member's impression: McIlvaine said the issue did come up during a board orientation and that her impression from the district's solicitor, Stephen Russell of Stock and Leader, was that "it doesn't seem that it could be turned back."

McIlvaine and Reinking said they would seek more information from Russell before making any decision.


from York Dispatch article -- http://www.yorkdispatch.com/searchresults/ci_3272956

So where did Russell give advice on the advoidance issue? I've seen nothing of the sort, as this passage from the York Dispatch suggests.<<<<<

That is a very good question! Have any answer, Ed? Colin? Kevin? Rilke's Granddaughter? Where are you guys now that we need you?

You should give the URL web address when citing an article. I added it for you. I recommend that others read the article.

Also, it should be noted that everyone knew that early December was the last chance to try the proposal to try to moot the lawsuit by repealing the ID policy (the judgment was due in late December or early January), so the board's decision to schedule Jan. 3 for dealing with the proposal was for all practical purposes a decision to kill the proposal.

>>>>>Just because advice is supposedly "unbiased" doesn't mean that it's the right advice -- maybe the real estate lawyer the outgoing board member mentioned also had an interest, whether it was a concern about the policy or about local taxes, either of those indicates a bias.<<<<<<

There is absolutely no reason to believe that the real estate attorney was biased in any way. As for the ID policy, it looked certain that the judge was going to strike it down if the school board did not do it first. As for local taxes, this attorney -- assuming he lived in the Dover Area school district -- shared a common interest with other local taxpayers.

See "Two-timing new members of Dover school board" for more information.

Thanks, Manuel, for bringing this article to our attention.

Wednesday, May 24, 2006 10:03:00 PM  
Anonymous W. Kevin Vicklund said...

Sorry for being away for so long - I had to leave the country to console my wife over the death of her grandfather (she couldn't return for the funeral). I've got a lot to catch up on.

The board minutes for the December 5 meeting states the following:

"Board President Reinking noted that legal counsel advised the Board that the trial is over and can not change the outcome of any vote." (I think this is a typo, by the way - to make any sense, it should read "can not be changed by", or perhaps changing "of" to "with")

Anyway, the minutes indicate they sought legal advise from "counsel", and the York Dispatch story indicates that 2 days prior to the meeting they were planning on consulting further with Stephen Russell (who was present at the meeting, btw). I recall reading a news story a week or so ago that made it more explicit that Mr. Russell was the counsel in question, but I can't remember which paper wrote the article - and it might just have been me connecting the same dots as above.

Oh, a side topic. The minutes from the January 3 meeting shows that the TMLC wasn't replaced by Mr. Russell until then. They were still the attorneys of record for several weeks after the December Board meeting (though it was pretty clear that they were going to drop TMLC)

Thursday, May 25, 2006 5:07:00 AM  
Blogger Manuel said...

>>>>>>>>The only unbiased professional legal advice that the board got on the fee-avoidance issue came from Napierskie's attorney and the board's former solicitor, Stephen Russell, who returned to the board at the December meeting.

With this info:

Board President Reinking noted that legal counsel advised the Board that the trial is over and can not change the outcome of any vote." (I think this is a typo, by the way - to make any sense, it should read "can not be changed by", or perhaps changing "of" to "with")

Anyway, the minutes indicate they sought legal advise from "counsel", and the York Dispatch story indicates that 2 days prior to the meeting they were planning on consulting further with Stephen Russell (who was present at the meeting, btw).

there's no reason why the school board should have considered the opinion of a lawyer with whom they (either new or old board members) had not consulted -- not to mention that this guy is a real estate lawyer with, I'm guessing, little or no trial experience -- and certainly no experience in constitutional law.

That leaves the people arguing for the possibility of mootness a real estate lawyer, the DI (whose real motive is to make sure other school boards don't dismiss pro-ID policies, like what happened in Ohio), and you (who, as you have admitted, are not a lawyer and have minimal legal experience).

Mootness was not a realistic option here -- at least at the time of the elections of the new school board. Can you accept that now with all this information and move on to your other concerns?

Manuel

Thursday, May 25, 2006 10:46:00 AM  
Blogger Larry Fafarman said...

Manuel said ( 5/25/2006 10:46:00 AM ) --

>>>>> the minutes indicate they sought legal advise from "counsel", and the York Dispatch story indicates that 2 days prior to the meeting they were planning on consulting further with Stephen Russell (who was present at the meeting, btw).<<<<<<

At the Dec. 5 meeting, Napierskie presented for the second time his proposal to try to avoid the fees by repealing the ID policy. Napierskie's attorney had prepared a written analysis in support of the proposal. As you note, Russell was present at the Dec. 5 meeting -- did he review the analysis, which I presume Napierskie had brought to the meeting? And does the board have any written evidence that it ever got any formal legal advice from Russell? The enormity of the irresponsibility of the new board members and Russell is becoming increasingly apparent.

>>>>>there's no reason why the school board should have considered the opinion of a lawyer with whom they (either new or old board members) had not consulted -- not to mention that this guy is a real estate lawyer with, I'm guessing, little or no trial experience -- and certainly no experience in constitutional law.<<<<<

Wrong. One former board member, Napierskie, had consulted this attorney -- and it really did not matter who had consulted this attorney.

Here was a former school board member, Napierskie, who on his own had gone to the trouble and expense (unless the real estate attorney was his friend who worked for free) of obtaining outside legal advice and presenting it twice at school board meetings, and he was apparently ignored by the new board and its solicitor. Disgraceful.

Russell was just a "school board" attorney -- why is that necessarily better than being a "real estate" attorney? A lot of people seem to have a very low opinion of "real estate" attorneys. They are still full-fledged attorneys -- they are not just clerks who fill in the blanks on deeds, mortgages, etc.. And some "real estate" attorneys are big wheels who are involved in multi-million dollar deals -- they are not at the bottom of the legal profession, not by a longshot.

Also, any attorney knows how to do legal research. I learned the basics of legal research myself in just a few weeks. You can quickly become an expert in a very narrow area of the law by doing research. For example, in a short time I became the world's foremost authority on federal legal and constitutional issues related to California's unconstitutional smog impact fee. I had read all the applicable laws, court cases, Congressional reports -- everything.

Also, Napierskie's attorney made a written analysis -- Russell apparently had not (at least not one that I am aware of).

Furthermore, the questions here do not involve constitutional law.

>>>>>Mootness was not a realistic option here -- at least at the time of the elections of the new school board. Can you accept that now with all this information and move on to your other concerns?<<<<<<

Never. The information that you have provided here has even strengthened the case against the school board.

Thursday, May 25, 2006 1:09:00 PM  
Blogger Manuel said...

I said:

>>>>>>>>>>>>>>>Mootness was not a realistic option here -- at least at the time of the elections of the new school board. Can you accept that now with all this information and move on to your other concerns?<<<<<<

Larry said:

>>>>>>>Never. The information that you have provided here has even strengthened the case against the school board.

How do you get this conclusion? Only one lawyer involved suggested that it was possible to avoid paying legal fees, and both the attorney for the defense and Russell said it's not possible, the case is closed.

I don't know the motives of this lawyer (the real estate guy) -- maybe his report was gibberish, merely an attempt to try to wash the hands of the outgoing board members (just speculation).

I never said that a real estate lawyer was at the bottom of the lawyer chain; it's just a different area of law. I wouldn't expect a heart doctor to properly diagnose a thyroid problem -- sure, the heart doctor could tell me a few things about thyroid problems, but it's not his area and he probably isn't up to date or even terribly knowledgeable about the issues of the thyroid. An anecdote: I had a lump on my throat (turned out to be a minor thyroid problem) and went to see a doctor. The doctor who saw me thought it was something with the lymph nodes and gave me his worst case scenario prognosis -- Hodgin's disease. It wasn't a true diagnosis, it was merely the doctor carrying out his professional duty to inform me of the possbilities. The clinic set up an appointment for the following week with a specialist. Turned out it was a problem with the thyroid; he said he could see how the other doctor confused the two (maybe he was just being nice, but I suspect he was sincere).

Another anecdote: I was in a car accident in Nicaragua and went to court to see who was responsible. Turned out they found me responsible (because the other driver committed no moving violation, which was false -- he stopped to turn left where no left turn was permitted). Anyway, I appealed (without getting a lawyer; needless to say I lost, no big thing). When I turned in my appeal, the lawyer for the other driver turned up and argued that my appeal wasn't valid because it wasn't filed in the 72 hours after the accident (never mind the hearing was a week or two after the accident, and you have 72 hours, or maybe it was 48, anyway, it was a long time ago, from the hearing, of course). So he argued that the appeal needed to be filed ... before the hearing.

All of which is to say that given no one has read this lawyer's report (maybe it was true gibberish, or just a report from another case with a different cover). More likely, it was full of irrelevant or wrong arguments.

So, to summarize, one lawyer with dubious qualifications (for the issue at hand, not for his area of expertise) argues for an attempt to moot the case in an attempt to avoid paying the plaintiffs' attorney fees, but is turned down by the other members of the school board (still the old board), the school board's "regular" attorney, the TMLC guys (who egged on the case, by the look of things), -- and somehow you think the new board is to blame?

Maybe you have more serious problems than I thought.

I encourage you to spend this long weekend in a facility where they can take care of you and your split personality or whatever problem(s) you have. Good luck,
Manuel

Thursday, May 25, 2006 6:51:00 PM  
Anonymous Tom Sturgis said...

Larry’s argument about Dover’s alleged ability to avoid attorney fees is just stupid.

Larry cites Federal Rule of Civil Procedure 12 as the key to his strategy. Rule 12 governs motions for summary judgment. Motions for summary judgment basically state that even if the allegations of the plaintiff are true, they still don‘t constitute a legal cause of action. In other words, in a motion for summary judgment, plaintiff’s allegations are, as a practical matter, simply assumed to be true. The only question is whether the allegations state a recognizable cause of action.

For example, if the statute of limitations is two years, and the plaintiff files his cause of action three years after the alleged wrongful act, a motion for summary judgment would point out that plaintiff would still lose his case even if all of his allegations are entirely correct, because the statute of limitations has already run. That is a legitimate basis for a motion for summary judgment.

It is painfully obvious, on the other hand, that Larry’s request for summary judgment is not legitimate, because regardless of any corrective action taken by the defendant, the plaintiff’s allegations, as stated in their complaint do indeed state a legitimate cause of action. The plaintiff’s allegations, essentially, are that at one time Dover had an unconstitutional policy, and we want damages because of that. Subsequent withdrawal of the policy would not change the fact that the policy existed at one time, and therefore Larry’s motion for summary judgment completely collapses.

BTW, making a frivolous motion for summary judgment might be grounds for disciplinary action against the attorneys making such a frivolous motion and would certainly be grounds for plaintiffs to tack on even more attorney fees to compensate for expenses incurred in defending against the frivolous motion. Larry's suggestion not only wouldn't avoid the attorney fees already incurred, it would actually make the liability for attorney fees even worse. Stupid, stupid, stupid.

One final point: Larry's ignorance is further revealed by his stating: “I have already shown that in Buckhannon, the lawsuit was mooted by voluntary cessation by the government, and the plaintiff was denied attorney fees.” Larry is so clueless, he doesn’t realize that Buckhannon was a completely different situation from Kitzmiller, and therefore is not even remotely applicable. Kitzmiller involved a claim for damages. Buckhannon did not. That’s a crucial difference, which the Supreme Court specifically pointed out in Buckhannon, by stating that cases cannot be mooted as long as the plaintiff has a claim for damages outstanding. Whether Larry is too dumb to tell the difference between the two different types of cases or whether he‘s simply so dishonest he doesn‘t care about the truth, the fact remains that the case he cited actually says exactly the opposite of what he claimed. Typical cretinist.

Sunday, June 11, 2006 1:47:00 PM  
Blogger Larry Fafarman said...

Reply to Manuel ( May 25, 2006 6:51:32 PM ) --

Manuel, you thought that by just ignoring everything I said, you could fool people into believing that what I said was wrong.

Sunday, June 11, 2006 4:16:00 PM  
Blogger Larry Fafarman said...

Tom Sturgis said ( June 11, 2006 1:47:39 PM ) --

>>>>>>Larry cites Federal Rule of Civil Procedure 12 as the key to his strategy.<<<<<<

No, FRCP Rule 12 is not the key to my strategy -- I just suggested a way in which Rule 12 could have been used to help my strategy by providing a procedure which Judge Jones would have been forced to follow.

>>>>>Motions for summary judgment basically state that even if the allegations of the plaintiff are true, they still don‘t constitute a legal cause of action. <<<<<<

False. Here is how a law dictionary defines "summary judgment":

A court order ruling that no factual issues remain to be tried and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial. A summary judgment is based upon a motion by one of the parties that contends that all necessary factual issues are settled or so one-sided they need not be tried.

Though this definition says "without trial," Rule 12 says that under certain circumstances a summary judgment may be made at any time during the trial, where I presume that the trial officially extends until the final judgment.

What you have defined is called a "demurrer," defined as follows by the same law dictionary:

A written response to a complaint filed in a lawsuit which, in effect, pleads for dismissal on the point that even if the facts alleged in the complaint were true, there is no legal basis for a lawsuit.

A demurrer can, of course, be considered as the basis for a summary judgment.

>>>>>It is painfully obvious, on the other hand, that Larry’s request for summary judgment is not legitimate, because regardless of any corrective action taken by the defendant, the plaintiff’s allegations, as stated in their complaint do indeed state a legitimate cause of action. The plaintiff’s allegations, essentially, are that at one time Dover had an unconstitutional policy, and we want damages because of that. <<<<<

The "damages" were just nominal damages of $1 per plaintiff. If a mere demand for nominal damages were alone sufficient to prevent mootness, then all plaintiffs would demand nominal damages and no lawsuit could ever be declared to be moot. Reductio ad absurdum. Q.E.D.. The only reason why I argued for so long about this issue of nominal damages is that the 10th, 6th, and 2nd Circuits have accepted the absurd notion that a claim for nominal damages is alone sufficient to prevent a case from being declared to be moot.

>>>>>BTW, making a frivolous motion for summary judgment might be grounds for disciplinary action against the attorneys making such a frivolous motion and would certainly be grounds for plaintiffs to tack on even more attorney fees to compensate for expenses incurred in defending against the frivolous motion.<<<<<

Wrong. This motion would not be frivolous at all, even if it could not be backed up by law and precedent. Attorneys have not been disciplined for making some really frivolous arguments, like attempting to use anti-racketeering laws ("RICO" laws) against abortion clinic demonstrators.

>>>>>Kitzmiller involved a claim for damages. Buckhannon did not. That’s a crucial difference, which the Supreme Court specifically pointed out in Buckhannon, by stating that cases cannot be mooted as long as the plaintiff has a claim for damages outstanding.<<<<<

That statement by the Supreme Court was just a single ambiguous sentence that was merely dictum, which is defined as follows by the law dictionary:

Latin for "remark," a comment by a judge in a decision or ruling which is not required to reach the decision, but may state a related legal principle as the judge understands it. While it may be cited in legal argument, it does not have the full force of a precedent (previous court decisions or interpretations) since the comment was not part of the legal basis for judgment.

There was no indication that the statement was intended to apply to nominal damages. I assert that nominal damages are just a symbolic token of vindication on some other claim.

Anyway, I already went over most of these things several times in arguing with Colin.

Sunday, June 11, 2006 4:19:00 PM  
Anonymous Tom Sturgis said...

Most of your “response” was nothing more than playing word games. Whether you call your strategy a motion for summary judgment, a demurrer, or a kijereedoobadba, the fact remains that it does not controvert any of plaintiff’s allegations, and is therefore conceptually identical to the scenario I outlined. In order to defeat my argument, you need to show either that the concepts are wrong or that I misapplied them. Since all you did is show that different jurisdictions use different names for different things at different times, your argument is meaningless.

Your argument that FRCP 12 is not the “key” to your argument is also nothing more than playing word games. If FRCP 12 is not an important part of your strategy, then why did you bring it up?

Your argument that nominal damages aren‘t enough to support an award of attorney fees is equally stupid, because it flies in the face of federal law, standard legal definitions, and Supreme Court precedent. 42 U.S.C. Sec. 1988 authorizes payment of attorney fees to the “prevailing party.” There is nothing -- repeat, nothing -- in that statute indicating that “prevailing parties” have to clear a minimum dollar threshold. Your argument to the contrary is nothing but a assertion. Indeed there have been numerous cases where attorney fees were awarded even when plaintiffs didn’t receive any money damages at all, and Congress did nothing to stop that, which shows that your monetary hurdle is a figment of your own imagination and was never a actual part of the Congressional act. Your interpretation of the statute is obviously radically different from Congress’s, and guess whose interpretation counts when that happens.

Furthermore, Black’s Law Dictionary defines “prevailing party” as the “party in whose favor a judgment is rendered regardless of the amount of damages awarded” (emphasis added), and the Supreme Court announced in Buckhannon that they accepted that same definition. In short, your hallucinatory interpretation is contradicted by the statute itself, congress’ indifference to the hurdle issue following enactment, Black’s Law Dictionary, and the Supreme Court. I guess that means your argument is wrong, wrong, wrong, and wrong again.

You also argue that my cite from Buckhannon was ambiguous. What’s so ambiguous about this: “[S]o long as the plaintiff has a cause of action for damages, a defendant’s change of conduct will not moot the case.” If you think that statement is ambiguous, then maybe you ought to go back to grade school and learn how to read.

Furthermore, the statement was not dicta, rather it was specifically related to an important argument made by the petitioners. Petitioners’ argument was rejected by the court, but rejections are not dicta, and the specific reasons given to justify the rejection are not dicta either. If you think the court’s rejection of petitioner’s argument was dicta, then that shows how little you know about the law.

But of all the stupid arguments you made, the stupidest one was your claim that my argument that claims for damages trumps claims for mootness must be wrong because according to you every suit involves claims for damages. First of all, it is not even possible for every suit to include a legitimate claim for damages, because some officials are immune from suits for damages, though they are liable to suits for injunctive relief, declaratory judgments, and other forms of equitable relief that do not involve money damages. Your ignorance of even the most basic aspects of legal procedure is simply appalling. You claimed that you showed that my argument led to ridiculous results, but it was your argument that was ridiculous, not mine.

And you don’t have to take my word for it. Just read footnote 10 in Buckhannon. You are familiar with Buckhannon, aren’t you? It was one that you cited yourself. That footnote was written by the Supreme Court. Guess what. It supports my argument, not yours. So who’s ridiculous now, moron?

And since you were the one who brought up Buckhannon in the first place, that makes it especially interesting in this context, because if you had actually read the case, you would have known that Buckhannon itself did not include a claim for damages. You’re so stupid, I don’t need to find my own cases to rebut you; your own case does it for me!

Your comment that the Supreme Court did not specifically identify nominal damages is also a waste of time. “Damages” is the name for a collection of objects. When a collective noun is used, it presumably refers to every object in the category unless specifically modified. Since the Supreme Court did not modify the noun, it presumably applies to all sorts of damages, and your hallucinatory argument that it doesn’t is sheer stupidity.

So to conclude this, you’re obviously an ignoramus, whose arguments are constructed out of nothing more than fantasy, ignorance, and dishonesty. I have better things to do with my time than to waste it holding your hand and teaching you how to read simple English sentences. If you want to continue this argument, then I expect you to cite a specific case as authority for your position, involving the same general circumstances as Kitzmiller. If you can’t do that, then you should just shut up. Better for you to keep quiet and be thought an ID-iot, then to open your mouth and remove all doubt.

Tuesday, June 13, 2006 12:50:00 PM  
Blogger Larry Fafarman said...

Tom Sturgis said ( 6/13/2006 12:50:41 PM ) --

>>>>>Most of your “response” was nothing more than playing word games. Whether you call your strategy a motion for summary judgment, a demurrer, or a kijereedoobadba, the fact remains that it does not controvert any of plaintiff’s allegations, and is therefore conceptually identical to the scenario I outlined. <<<<<

I am not the one who is playing word games -- you are. I never called my strategy a "demurrer," and I gave a law dictionary's definitions of "summary judgment" and "demurrer" which showed that the two things are completely different.

As for the plaintiff's allegations, it often happens that a plaintiff has a valid cause of action at the beginning of a trial but that cause of action ceases to exist during the course of the trial.

>>>>>Your argument that FRCP 12 is not the “key” to your argument is also nothing more than playing word games. If FRCP 12 is not an important part of your strategy, then why did you bring it up? <<<<<<

I brought up Rule 12 because it is helpful to my strategy -- not because it is the "key" to my strategy.

>>>>>Your argument that nominal damages aren‘t enough to support an award of attorney fees is equally stupid, because it flies in the face of federal law, standard legal definitions, and Supreme Court precedent. 42 U.S.C. Sec. 1988 authorizes payment of attorney fees to the “prevailing party.” There is nothing -- repeat, nothing -- in that statute indicating that “prevailing parties” have to clear a minimum dollar threshold.<<<<<

No one here has yet found an unambiguous, non-dictum Supreme Court precedent that holds that a claim for nominal damages is alone sufficient to prevent mootness. The only such precedents that exist are in the 2nd, 6th, and 10th circuits. See the discussion in "Two-timing new members of Dover school board"

There does not need to be a minimum theshold, because the award of attorney fees is discretionary with the courts. The courts are perfectly free to decide that an award of nominal damages alone is not sufficient to justify an award of attorney fees.

>>>>>Indeed there have been numerous cases where attorney fees were awarded even when plaintiffs didn’t receive any money damages at all<<<<<

Of course -- the law does not require an award of money damages as a condition for an award of attorney fees.

>>>>>Furthermore, Black’s Law Dictionary defines “prevailing party” as the “party in whose favor a judgment is rendered regardless of the amount of damages awarded” (emphasis added), and the Supreme Court announced in Buckhannon that they accepted that same definition.<<<<<

Why are you making a big deal about a law dictionary's definition of "prevailing party" after you refused to accept a law dictionary's definitions of "summary judgment" and "demurrer"? Anyway, the term "prevailing party" has nothing to do with the issue of mootness.

>>>>>You also argue that my cite from Buckhannon was ambiguous. What’s so ambiguous about this: “[S]o long as the plaintiff has a cause of action for damages, a defendant’s change of conduct will not moot the case.”<<<<<<

What is ambiguous is that the Supreme Court did not elaborate on the above statement. For example, suppose there is a claim for $1 million in damages, and the defendant pays or offers to pay that amount outside of court. Would the cause of action for damages still exist? Nominal damages are a special case -- paying the $1 in nominal damages would not necessarily moot a claim for nominal damages, because these damages are awarded as a token of vindication for some other claim. But if all other claims become moot, then there is nothing to vindicate, and so the claim for nominal damages should also become moot.

>>>>>Furthermore, the statement was not dicta, rather it was specifically related to an important argument made by the petitioners. <<<<<

Wrong. The petitioner in Buckhannon had dropped its claim for damages, so damages were not an issue in the case. Hence, whatever the court said in regard to damages was dicta.

>>>>>>But of all the stupid arguments you made, the stupidest one was your claim that my argument that claims for damages trumps claims for mootness must be wrong because according to you every suit involves claims for damages.<<<<<<

Wrong. I never said that every suit involves a claim for damages. I only said that if it were generally understood that a claim for nominal damages alone could always prevent mootness, then all plaintiffs would start demanding nominal damages.

>>>>>First of all, it is not even possible for every suit to include a legitimate claim for damages, because some officials are immune from suits for damages<<<<<

Yes, but remember that a claim for nominal damages always prevents mootness, so a court would have to make a judgment on the merits before declaring that a sued government or government official is immune from a claim for damages. Anyway, even if a claim for nominal damages could not be made in certain kinds of lawsuits, we would still see a great increase in the number of nominal damages claims if it were widely believed that they could always prevent mootness.

>>>>And you don’t have to take my word for it. Just read footnote 10 in Buckhannon.<<<<<

All that footnote 10 says is that the Dover school board was not immune from a claim for damages, and I never said anything to the contrary.

>>>>>And since you were the one who brought up Buckhannon in the first place, that makes it especially interesting in this context, because if you had actually read the case, you would have known that Buckhannon itself did not include a claim for damages. <<<<<<

I knew that, moron. Justice Ginsburg said in a dissenting opinion that the plaintiff had dropped the damages claim while the case was in district court: "On January 2, 1998, facing the state defendants’ sovereign immunity pleas, plaintiffs stipulated to dismissal of their demands for damages."

>>>>>>Your comment that the Supreme Court did not specifically identify nominal damages is also a waste of time. “Damages” is the name for a collection of objects.<<<<<

In legalese, the word "damages" is always plural in construction even when singular in meaning. There are other words like that -- e.g., "savings," which is often used with a singular verb.

>>>>If you want to continue this argument, then I expect you to cite a specific case as authority for your position, involving the same general circumstances as Kitzmiller<<<<<

You know that is an unreasonable request -- I cannot manufacture precedents out of thin air. Ironically, if the Dover school board had done things right, Kitzmiller itself could have been a precedent for many of the issues debated here about mootness and liability for attorney fees.

>>>>> If you can’t do that, then you should just shut up.<<<<<

I can't do that and I will not shut up.

Tuesday, June 13, 2006 3:52:00 PM  
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