I'm from Missouri

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

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Location: Los Angeles, California, United States

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

Monday, July 03, 2006

Challenge to Ed Brayton and his pals

You and your pals talk big, Ed, but you are just big bags of hot air. Since you have banned me from your blog, I challenge you and/or your pals to come here and debate me out in the open. Many of my opponents here are just hecklers who have done nothing except call me wrong, stupid and ignorant and post breathtakingly inane wisecracks.

Now for some more replies to Ed Brayton's nonsense.

In yet another article, Ed Brayton says, "The fact is, the only reason they [the Dover plaintiffs] asked for the nominal damages of $1 per plaintiff was to avoid having the case mooted in case of a school board change (which, of course, did happen) and force the court to rule in the case."

This notion that a claim for nominal damages is alone sufficient to prevent a case from being declared to be moot has been thoroughly debunked in this blog. If there were such a general rule, then all plaintiffs would claim nominal damages and no lawsuit could ever be mooted. Reductio ad absurdum. Q.E.D.. It appears that the 2nd, 6th, and 10th circuit federal courts of appeals have accepted this absurd idea, but there is no evidence that there is generally any such rule about nominal damages. What is the point of having just a claim for a lousy $1 if all your other claims are moot? No one has yet provided a single instance where a court has granted nominal damages and nothing else. Nominal damages are just symbolic tokens of vindication on some other claim -- when all other claims become moot, then the nominal damages claim should become moot also.

==========================================================.

Ed Brayton said,

The legal bills in Lamb's Chapel and Good News Club were almost certainly in the millions of dollars, especially since both went all the way to the Supreme Court and thus required an addition 3 years or so of legal work. Why, then, do we never hear the right accusing the American Center for Law and Justice or the Alliance Defense Fund of using legal fees to "intimidate" school districts into compliance?

Why should the right be complaining about that? If attorney fee awards in free exercise suits are a problem, then why isn't the left complaining about it?

Also, just because these cases went to the Supreme Court does not necessarily mean that they cost millions of dollars in legal fees. You are always jumping to conclusions. Often, the biggest expenses are incurred in the trial court. Appeals are usually done just with briefs, with very short oral hearings sometimes included. In appeals actions, normally the appellant/petitioner gets to file two briefs and the appellee/respondent gets to file one, though sometimes there are extra briefs, like a petition for rehearing. The big factors that drove up costs in Kitzmiller v. Dover were: (1) a horde of plaintiffs' attorneys of record -- 9-10 -- with at least 5 of them in the courtroom every day of a six-week trial; (2) a lot of expert witness testimony -- six plaintiffs' experts and several defense experts; and (3) lots of pre-trial discovery, including depositions. In contrast, the Lamb's Chapel and Good News Club cases were much more clear-cut and probably had no expert witnesses and little or no pre-trial discovery -- these were cases involving exclusion of religious organizations from after-hours use of public-school facilities. However, it is true that other seemingly clear-cut cases also ran up big legal bills, though not as high as Dover -- it has been reported that the ACLU was awarded nearly $800,000 in attorneys’ fees from the city of San Diego, Calif., in a successful effort to prevent the Boy Scouts of America, which acknowledges God in its oath, from continuing to use Balboa Park and that the ACLU, Americans United for Separation of Church and State and the Southern Poverty Law Center gained about $540,000 from the state of Alabama in a successful challenge of the Ten Commandments monument displayed in the State Judicial Building by Alabama Chief Justice Roy Moore.

Anyway, I said that instead of just banning attorney fee awards in establishment clause cases, there should be caps on attorney fee awards for both establishment clause and free exercise clause cases.

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

Ed Brayton said,

..... the fact that Pepper Hamilton decided in this case to forego any reimbursement for billable hours by the attorneys is an anamoly. In most such cases, they will take at least partial repayment of those billable hours, at least enough to break even.....Ordinarily when the ACLU wins a big case like this, they only get a small portion of the legal fee reimbursement because they only have one part time attorney working on it,

How do you know that Dover is an "anomaly" in this regard? You are always jumping to conclusions. A former ACLU staff attorney said,

The ACLU, posturing to the public that it acts on principle and pro bono, in the public interest and without fee, in fact has raked in enormous profits in lawsuits brought under the "establishment clause."

These lawsuits are nationwide, coast to coast, and run literally into millions of dollars in the pockets of the ACLU in "attorney fee awards" - although in fact neither the ACLU nor its mascot plaintiffs have incurred any actual attorney fees.

As a onetime ACLU staff attorney, I know that the ACLU recruits attorneys to take on its cases without fee, and that the ACLU does not charge attorney fees to the persons it uses as plaintiffs.

Large firms often provide attorneys from their pro bono units at no cost to the ACLU....

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

Before, I called the attorney fee awards in establishment clause cases "draconian," but suggested only one way of reducing the awards -- reducing the number of plaintiffs' attorneys. I will suggest other ways here as well.

Here are some ways in which the Dover plaintiffs' legal representatives could have economized:

(1) -- reduce the number of attorneys of record. There were 9-10 attorneys of record, with at least 5 of them in the courtroom on every day of a six-week trial. In contrast, the defense had just four attorneys of record, and I heard that only one of them was a full-timer.

(2) -- eliminate the expert witnesses or reduce their number. Initially there were six expert witnesses for the plaintiffs and six for the defense, but two or three of the expert defense witnesses dropped out. The testimony of these experts was mostly just a "Monday morning battle of the experts" that did little or nothing to illuminate the purpose of the school board or the perceptions of the local community. In Edwards v. Aguillard, the district court judge refused to hear such expert testimony and the Supreme Court expressly agreed with that decision.

(3) -- eliminate deposition of expert witnesses. There was no reason to depose the expert witnesses, because all of them had submitted expert witness reports and supposedly had long paper trails of publications. Deposing these expert witnesses was like "deposing" federal judicial nominees prior to Senate confirmation hearings.

Labels:

37 Comments:

Anonymous W. Kevin Vicklund said...

>>>No one has yet provided a single instance where a court has granted nominal damages and nothing else. <<<

First of all, this is an utter lie. Colin provided a whole bunch of decisions that were nominal damage only cases that you arbitrarily decided to ignore. So here is a case that went all the way to the Supreme Court: FARAGHER v. CITY
OF BOCA RATON, 524 U.S. 775 (1998)
. "Faragher sought a judgment against the City for nominal damages, costs, and attorney’s fees." Since costs and attorney's fees are dependent upon the nominal damages claim, it is proper to call this a nominal damages only claim. The Court ruled in favor of Faragher, and the dissent merely found that the city should not have been found vicariously liable, but that on remand the city's negligence should be considered.

Your other claims are just as wrong, and perhaps I'll have a chance to address them over the next two weeks (my wife is out of the country until mid-month - she came back for a couple of weeks, which is why I've been rather silent lately).

Monday, July 03, 2006 7:08:00 PM  
Blogger Larry Fafarman said...

W. Kevin Vicklund said ( 7/03/2006 07:08:12 PM ) --

>>>>>>No one has yet provided a single instance where a court has granted nominal damages and nothing else. <<<

First of all, this is an utter lie. Colin provided a whole bunch of decisions that were nominal damage only cases that you arbitrarily decided to ignore.<<<<<<

You should be careful about using such strong language on a first response.

I was talking about a case in which only nominal damages were actually granted. No such case was presented.

Farrar was supposedly a grant of nominal damages only case, but declaratory relief -- in the form of a finding that the plaintiffs' civil rights had been violated -- was also granted.

There was also a 2004 10th Circuit case (Utah Animal Rights League v. ? or something like that) where the appeals court declared all claims to be moot except for the nominal damages claim and then said that according to 10th Circuit precedent the nominal damages claim alone prevented mootness, and then proceeded to judge the declaratory relief and injunctive relief claims that the court had just declared to be moot ( ! ) and rejected those claims, so nominal damages were not granted either. I know of no case where a plaintiff who lost on all other claims was given nominal damages as a consolation prize.

>>>>> So here is a case that went all the way to the Supreme Court: FARAGHER v. CITY
OF BOCA RATON, 524 U.S. 775 (1998). "Faragher sought a judgment against the City for nominal damages, costs, and attorney’s fees."<<<<<<

This is just another quote mine. The case also included a claim for declaratory relief in the form of a finding of sexual harassment. On closer examination, these supposedly nominal damages only cases usually include a claim for declaratory relief -- Farrar is another example.

>>>>>Your other claims are just as wrong, and perhaps I'll have a chance to address them over the next two weeks (my wife is out of the country until mid-month - she came back for a couple of weeks, which is why I've been rather silent lately).<<<<<<

You are increasingly looking like a big bag of hot air, Kevin. Remember how you boasted that you were going to respond to all 20 of my criticisms of the Dover opinion, but you only responded to one or two of them.

Monday, July 03, 2006 11:24:00 PM  
Anonymous Voice In The Wilderness said...

Kevin,

It is great to see you back. As you can see, the blog has deteriorated badly since your departure. Larry(?) has been frantically adding new material in order to hide the fact that he is ducking all questions.

Now for Larry(?)'s blather:

> You should be careful about using such strong language on a first response. <

From someone who uses such language in his original articles. Kevin was just pointing out a fact. You lied. It is not unusual for you.

> I was talking about a case in which only nominal damages were actually granted. <

Now you are trying to change the issue.

> This is just another quote mine. <

No. This is just another case where you were clearly wrong. Pointing out one case where you are wrong among a galaxy of cases where you are wrong is not quote mining. You don't seem to have any more of a concept of what the term means than you do about ad hominems.

You are increasingly showing yourself to be a big bag of hot air, Larry(?).

As to your latest "article", "Challenge to Ed Brayton and his pals":

> I challenge you and/or your pals to come here and debate me out in the open. <

Why should we believe that you would do any better than you do on this blog? You dodge questions, repeat phony arguments after they have been shown to be false, and pretend that people have not answered your questions. You don't know what debate is. For the most part you do nothing except call opponents wrong and make inane personal attacks.

> This notion that a claim for nominal damages is alone sufficient to prevent a case from being declared to be moot has been thoroughly debunked in this blog. <

This claim of yours has been thoroughly debunked.

> If there were such a general rule, then all plaintiffs would claim nominal damages and no lawsuit could ever be mooted. <

They would have to collect such damages, not just claim them.

> Reductio ad absurdum. <

You are indeed absurd.

> It appears that the 2nd, 6th, and 10th circuit federal courts of appeals have accepted this absurd idea, but there is no evidence that there is generally any such rule about nominal damages. <

They have accepted the general rule. Of course they know something about law, unlike you Larry(?).

> What is the point of having just a claim for a lousy $1 if all your other claims are moot? <

You have just given a good reason for claiming nominal damages. Don't you read your own stuff?

> No one has yet provided a single instance where a court has granted nominal damages and nothing else. <

That is a lie.

> Nominal damages are just symbolic tokens of vindication on some other claim -- when all other claims become moot, then the nominal damages claim should become moot also. <

The courts go by the law, not by your opinions.

> I said that instead of just banning attorney fee awards in establishment clause cases, there should be caps on attorney fee awards for both establishment clause and free exercise clause cases. <

Why? People who know that their cases are pointless, like the creationists, need to absorb the full cost of their activities.

> Here are some ways in which the Dover plaintiffs' legal representatives could have economized: <

Why should they economize? If the opposing side knows that they have no case, they can save expenses by not wasting the time of their opponents and the courts.

> reduce the number of attorneys of record. <

It is up to each side to decide how many attorneys of record that they want to have. The courts have the option of determining what reasonable expenses are, and they have done so.

> In contrast, the defense had just four attorneys of record, and I heard that only one of them was a full-timer. <

It is tough to get attorneys to join the side of ignorance in cases where they know that they have no chance of winning. They don't want to look like dolts.

> eliminate deposition of expert witnesses. <

Here you expose that you don't really understand the purpose of depositions.

> and supposedly had long paper trails of publications. <

In how many of these publications was their testimony sworn?

I suppose that you will duck all of these questions and just hurl invective. That is what you would do if Ed Brayton appeared on this blog. Besides you claim that I am Ed Brayton anyway.

Tuesday, July 04, 2006 3:18:00 AM  
Blogger DaveScot said...

Nice quote from the ex ACLU staff attorney.

I see all of the usual suspects have kept silent on that one.

The bottom line remains that the ACLU submitted a legal bill for $2.5 million in a case where there were no actual damages claimed. Is it reasonable to spend that much money for an injunction to stop something that was causing no demonstrable damage to anyone?

Of course it isn't reasonable. Huge legal fees are being used as a proxy for damage claims when there is no case for any actual damages of that size.

Any honest person with a brain in their head can see this is what's going on.

Tuesday, July 04, 2006 4:14:00 AM  
Blogger Larry Fafarman said...

> Any honest person with a brain in their head can see this is what's going on. <

How would you know?

Tuesday, July 04, 2006 4:29:00 AM  
Blogger Larry Fafarman said...

A Larry Fafarman impersonator said,

>>>>> Any honest person with a brain in their head can see this is what's going on. <

How would you know? <<<<<<

Shut up, Ed Brayton! And stop impersonating me!

--- the real Larry Fafarman

Tuesday, July 04, 2006 5:47:00 AM  
Blogger Larry Fafarman said...

DaveScot said ( 7/04/2006 04:14:00 AM ) --

>>>>>>The bottom line remains that the ACLU submitted a legal bill for $2.5 million in a case where there were no actual damages claimed. Is it reasonable to spend that much money for an injunction to stop something that was causing no demonstrable damage to anyone?<<<<<<

The problem was that the plaintiffs conducted a cost-no-object lawsuit:

(1) -- 9-10 attorneys of record, with 5 in the courtroom on each day of a 6-day trial

(2) -- six expert witnesses for a "Monday morning battle of the experts"

(3) -- unnecessary depositions of expert witnesses who had submitted expert witness reports and had big paper trails of publications

>>>>>>Huge legal fees are being used as a proxy for damage claims when there is no case for any actual damages of that size.<<<<<<

These exorbitant fee awards are functionally equivalent to punitive damages. Hypocritical Darwinists assert that these exorbitant fee awards are not punitive and then turn around and use these fee awards to intimidate others.

Perversely, the less serious violations of civil rights are often harder to prove and therefore tend to result in higher attorney fee awards. If the school district had done something really flagrant like introduce school prayer, a permanent injunction would have been quickly obtained and would have cost little or nothing in attorney fees.

Tuesday, July 04, 2006 6:57:00 AM  
Anonymous W. Kevin Vicklund said...

>>>You should be careful about using such strong language on a first response.

I was talking about a case in which only nominal damages were actually granted. No such case was presented.<<<

And as I said, you are lying, and continuing to lie. In addition to the two you mentioned above, Colin presented a slew of lower court decisions that you arbitrarily dismissed. BTW, I've got all of those decisions open on one of my computers in html format - I can link to them tomorrow, assuming the computer doesn't crash efore then.

>>>Farrar was supposedly a grant of nominal damages only case, but declaratory relief -- in the form of a finding that the plaintiffs' civil rights had been violated -- was also granted.<<<

A finding that the plaintiffs' civil rights had been violated is just that - a finding of fact, which is what the court relies on to issue relief in the form of a judgement (effectively, relief and judgement are synonomous here). That relief can be granted in a myriad of forms - retrospective relief, in the form of damages (e.g. nominal, compensatory, punitive) or imprisonment (which could occur if the defendant violated a standing order), or prospective relief, in the form of injuctive (which orders a defendant to stop or start doing something) or declarative relief (which states the legal relationship between the parties - generally that an existing law would violate certain rights if enforced). Declarative relief by definition is a judgement that is not enforceable. All other forms of relief are enforceable. A finding of fact is not a judgement, and therefore is not a form of relief.

>>>There was also a 2004 10th Circuit case (Utah Animal Rights League v. ? or something like that) where the appeals court declared all claims to be moot except for the nominal damages claim and then said that according to 10th Circuit precedent the nominal damages claim alone prevented mootness, and then proceeded to judge the declaratory relief and injunctive relief claims that the court had just declared to be moot ( ! ) and rejected those claims, so nominal damages were not granted either. I know of no case where a plaintiff who lost on all other claims was given nominal damages as a consolation prize.<<<

I believe you are referring to UTAH ANIMAL RIGHTS COALITION v. SALT LAKE CITY CORPORATION. In fact, the appeals court, while noting that the claims for prospectie relief, as well as for temporary relief, were moot because the behavior was not currently occurring nor could it occur, spent most of the decision discussing whether the actions that took place in the past were unconstitutional. Therefore, they were adjudicating the retrospective claim of noinal damages, which they ultimately rejected.

>>>>> So here is a case that went all the way to the Supreme Court: FARAGHER v. CITY
OF BOCA RATON, 524 U.S. 775 (1998). "Faragher sought a judgment against the City for nominal damages, costs, and attorney’s fees."<<<<<<

>>>This is just another quote mine. The case also included a claim for declaratory relief in the form of a finding of sexual harassment. On closer examination, these supposedly nominal damages only cases usually include a claim for declaratory relief -- Farrar is another example.<<<

Again, a finding of fact is not declaratory relief. Your idiosyncratic definition would mean that every case ever brought to be adjudicated had a claim for declaratory relief. No legal scholar agrees with your definition - it is simply wrong. Declaratory relief is a separate judgement that is not enforceable and must be specifically requested.

>>>>>Your other claims are just as wrong, and perhaps I'll have a chance to address them over the next two weeks (my wife is out of the country until mid-month - she came back for a couple of weeks, which is why I've been rather silent lately).<<<<<<

>>>You are increasingly looking like a big bag of hot air, Kevin. Remember how you boasted that you were going to respond to all 20 of my criticisms of the Dover opinion, but you only responded to one or two of them.<<<

My wife was away for 9 1/2 months, dude. I will hit one or two more of those claims this week and next, as well as the contempory posts, but mid-month she'll be back briefly and I'll have to disappear for the duration. Remember, I put ten times more research into my comments than you do.

Tuesday, July 04, 2006 7:36:00 AM  
Anonymous W. Kevin Vicklund said...

>>>Perversely, the less serious violations of civil rights are often harder to prove and therefore tend to result in higher attorney fee awards. If the school district had done something really flagrant like introduce school prayer, a permanent injunction would have been quickly obtained and would have cost little or nothing in attorney fees.<<<

Ironically, you've just demonstrated why attorney fee's aren't punitive - if they were, the flagrant violations would produce higher attorney fees.

Here's a newsflash - all laws that carry a punishment for violation, be they legislative, regulatory, or case law, are intended to intimidate. That is the point of law - to prevent people, groups, or the government from acting in a way deemed inappropriate, or to force them to act in a way deemed appropriate.

BTW, the Uniform Declaratory Relief Act created sections 2201 and 2202 of Title 28. Here is the statutory definition of declaratory relief as provided by section 2201:

(a) In a case of actual controversy within its jurisdiction, ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

The ellipses contain the exceptions, and part (b) refers to another section for limitations wrt drug patents.

So why request declaratory judgement? There are several reasons. First, section 2202 states, in full "Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment." In other words, it allows additional penalties if one of the parties continues to violate the rights of another party. One example of this is that a state, normally immune to a suit for damages, that continues to violate the civil rights of its citizens after a declaratory judgement has been entered against it loses its immunity under section 2202. Another reason to request declarative relief is that under FRCP Rule 57, request for declarative relief can be expedited. A third reason is that declaratory relief may be more appropriate than injunctive relief.

Tuesday, July 04, 2006 8:38:00 AM  
Blogger Larry Fafarman said...

W. Kevin Vicklund said ( 7/04/2006 07:36:20 AM ) --

>>>>>I was talking about a case in which only nominal damages were actually granted. No such case was presented.<<<

Colin presented a slew of lower court decisions that you arbitrarily dismissed. BTW, I've got all of those decisions open on one of my computers in html format - I can link to them tomorrow, assuming the computer doesn't crash efore then.<<<<<<

Please do that.

>>>>>>A finding that the plaintiffs' civil rights had been violated is just that - a finding of fact, which is what the court relies on to issue relief in the form of a judgement (effectively, relief and judgement are synonomous here).<<<<<<

A finding of fact that vindicates a claim of the plaintiff -- e.g., a claim that the plaintiff's rights were violated -- is itself declaratory relief.

>>>>>I believe you are referring to UTAH ANIMAL RIGHTS COALITION v. SALT LAKE CITY CORPORATION.<<<<<

Yes, that was the case -- I couldn't Google it directly but had to go into the records of the 10th circuit. Here is what the opinion says in the introduction to the "V. Conclusion" section: --

The panel was constrained to take jurisdiction in this case because of Tenth Circuit precedent holding that a claim for nominal damages precludes dismissal of the case on mootness grounds. Comm. for the First Amendment v. Campbell, 962 F.2d 1517, 1526 (10th Cir. 1992); O'Connor v. City & County of Denver, 894 F.2d 1210, 1215-16 (10th Cir. 1990). I believe those decisions were incorrect and that either an en banc court or the Supreme Court should hold that a case that is otherwise nonjusticiable on account of mootness is not saved by the mere presence of a prayer for nominal damages.

>>>>>Again, a finding of fact is not declaratory relief.<<<<<

Not necessarily so. As I said above, a finding of fact that vindicates a claim of the plaintiff -- e.g., a claim that the plaintiff's rights were violated -- is a form of declaratory relief.

>>>>>>Your idiosyncratic definition would mean that every case ever brought to be adjudicated had a claim for declaratory relief.<<<<<<

Yes, and that meaning would be correct -- a claim for declaratory relief is implicit in a claim for every other kind of relief, e.g., injunctive relief and monetary relief, because a declaration that the plaintiff was wronged is necessary for granting any other kind of relief. However, often declaratory relief is identified as such only when it is the only kind of relief granted on a specific cause of action.

<<<<<>>>You are increasingly looking like a big bag of hot air, Kevin. Remember how you boasted that you were going to respond to all 20 of my criticisms of the Dover opinion, but you only responded to one or two of them.<<<

My wife was away for 9 1/2 months, dude. <<<<<<

Well, OK, but that doesn't explain why the absence of your wife prevented you from addressing my criticisms of the Dover decision.

>>>>>>Remember, I put ten times more research into my comments than you do. <<<<<

That's bull.

Tuesday, July 04, 2006 10:24:00 AM  
Anonymous Voice In The Wilderness said...

> A finding of fact that vindicates a claim of the plaintiff -- e.g., a claim that the plaintiff's rights were violated -- is itself declaratory relief. <

This makes entry #3 in the Lunatic of the Month contest.
I am including one comment made in June for its sheer audacity.

>>>>>Again, a finding of fact is not declaratory relief.<<<<<

> Not necessarily so. <

Yes, necessarily so. Repeating your misconception of what constitutes declaratory relief does not make it so.

Since you like stories (which you usually misinterpret) I would like to point out the question once asked by Lincoln: "How many legs would a dog have if you call a tail a leg? The answer is four. Calling a tail a leg does not make it one.

You should make some effort to learn the meaning of the term "declaratory relief". If you understood that term it would be the first step in your legal education.

> a claim for declaratory relief is implicit in a claim for every other kind of relief <

I don't think your brain is capable of understanding the term declaratory relief.

> because a declaration that the plaintiff was wronged is necessary for granting any other kind of relief. <

It is necessary to leave the house to go to the circus. By your logic, a motion toward the door implies an intent to go to the circus.

> However, often declaratory relief is identified as such only when it is the only kind of relief granted on a specific cause of action. <

Declaratory relief is identified as such only when it is declaratory relief.

>>>>>>My wife was away for 9 1/2 months, dude. <<<<<<

> Well, OK, but that doesn't explain why the absence of your wife prevented you from addressing my criticisms of the Dover decision. <

You pathetic dimwit! It wasn't the absence of his wife that took up his time. It was the return of his wife after being away. I didn't think that even you were too stupid to understand that. I overestimated your intelligence. No wonder you can't understand legal papers.

>>>>>Remember, I put ten times more research into my comments than you do. <<<<<

> That's bull. <

The difference is that Kevin understands what he reads when he does research. You have demostrated that you don't.

Tuesday, July 04, 2006 10:55:00 AM  
Blogger Larry Fafarman said...

I see Ed Brayton behind every tree. There he is walking down the street disguised as a cat! You don't fool me, Ed Brayton.

Tuesday, July 04, 2006 11:35:00 AM  
Anonymous W. Kevin Vicklund said...

>>>>>>Colin presented a slew of lower court decisions that you arbitrarily dismissed. BTW, I've got all of those decisions open on one of my computers in html format - I can link to them tomorrow, assuming the computer doesn't crash efore then.<<<<<<

>>>Please do that.<<<

Will do. I can't access that computer until tomorrow, though.

>>>A finding of fact that vindicates a claim of the plaintiff -- e.g., a claim that the plaintiff's rights were violated -- is itself declaratory relief.<<<

A finding of fact is not any form of relief. Only an order or decree is a form of relief or judgement. A finding of fact is a pre-requisite to the issuance of relief, but it is not, by itself, relief of any type, declarative or otherwise.

>>>Yes, that was the case -- I couldn't Google it directly but had to go into the records of the 10th circuit. Here is what the opinion says in the introduction to the "V. Conclusion" section: --

The panel was constrained to take jurisdiction in this case because of Tenth Circuit precedent holding that a claim for nominal damages precludes dismissal of the case on mootness grounds. Comm. for the First Amendment v. Campbell, 962 F.2d 1517, 1526 (10th Cir. 1992); O'Connor v. City & County of Denver, 894 F.2d 1210, 1215-16 (10th Cir. 1990). I believe those decisions were incorrect and that either an en banc court or the Supreme Court should hold that a case that is otherwise nonjusticiable on account of mootness is not saved by the mere presence of a prayer for nominal damages.<<<

That is not part of the conclusion. Rather, it is the introduction to the concurrence by J. McClellan - I will chalk this up as an innocent error, as we have already discussed it previously. Oddly enough, even Justice Antonin Scalia finds that a claim for nominal damages precludes mootness even when claims for prospective relief (declarative and injunctive) would be ordinarily mooted (from a dissent to a denial of certariori - again, it's on the other computer, so I'll link tomorrow).

>>>>>>Again, a finding of fact is not declaratory relief.<<<<<<

>>>Not necessarily so. As I said above, a finding of fact that vindicates a claim of the plaintiff -- e.g., a claim that the plaintiff's rights were violated -- is a form of declaratory relief.<<<

Wrong. It is a finding of fact. Relief, declaratory or otherwise, can only be granted by a court order or decree. A mere finding of fact - while still vitally important to any case - is not a form of relief. Period.

>>>>>>Your idiosyncratic definition would mean that every case ever brought to be adjudicated had a claim for declaratory relief.<<<<<<

>>>Yes, and that meaning would be correct -- a claim for declaratory relief is implicit in a claim for every other kind of relief, e.g., injunctive relief and monetary relief, because a declaration that the plaintiff was wronged is necessary for granting any other kind of relief. However, often declaratory relief is identified as such only when it is the only kind of relief granted on a specific cause of action.<<<

A finding that a plaintiff was wronged is not the same thing as a judgement that a plaintiff was wronged. Those two concepts, finding versus judgement, while similar, reside in separate parts of a court decision. There is no "often" about it. It is the definition of declaratory relief - any enforceable order is, by definition, not a declaratory judgement. However, multiple judgements may arise from a single finding of fact, so you can have claims for damages, declarative relief, and injunctive relief all arising from a single finding of a violations of rights. Note, however, that unlike the claims for retrospective relief (damages), claims for prospective relief (declaratory and injunctive) require a current or likely future violation.

>>>Well, OK, but that doesn't explain why the absence of your wife prevented you from addressing my criticisms of the Dover decision.<<<

You performed a Gish Gallop. I had to do lots of research, most of which I didn't even present, even though it supported my position.

>>>>>>Remember, I put ten times more research into my comments than you do. <<<<<<

>>>That's bull.<<<

Actually, I probably put in a much greater ratio of research than I indicated, but I was being generous to you. It is obvious to most people not named Larry Fafarman that I put a significantly higher amount of research into my comments than you. I read the full content of anything I link to, which you readily admit you don't do, and I look at 10-20 sources at a minimum before commenting. You can't even be bothered to fully read a single source!

Tuesday, July 04, 2006 12:35:00 PM  
Blogger Larry Fafarman said...

W. Kevin Vicklund said ( 7/04/2006 12:35:24 PM ) --

<<<<<>>>A finding of fact that vindicates a claim of the plaintiff -- e.g., a claim that the plaintiff's rights were violated -- is itself declaratory relief.<<<

A finding of fact is not any form of relief. Only an order or decree is a form of relief or judgement. A finding of fact is a pre-requisite to the issuance of relief, but it is not, by itself, relief of any type, declarative or otherwise.<<<<<<

As I said, a finding of fact that vindicates a (legal) claim of the plaintiff -- e.g., a claim that the plaintiff's rights were violated -- is declaratory relief, even if the court does not choose to call it that.

>>>>>>That is not part of the conclusion. Rather, it is the introduction to the concurrence by J. McClellan <<<<<<

OK, it is all very confusing -- the main opinion and the concurring opinion are not clearly separated, and to add to the confusion, the same judge (McConnell, not McClellan) wrote both the main and concurring opinions. But what the section is called is not important -- what is important is what was said, and McConnell said that he thought those 10th circuit precedents about nominal damages should be overturned.

>>>>>Oddly enough, even Justice Antonin Scalia finds that a claim for nominal damages precludes mootness even when claims for prospective relief (declarative and injunctive) would be ordinarily mooted <<<<<

Note that I highlighted "prospective." Your statement says nothing about retrospective belief. When I spoke about all claims being mooted except the claim for nominal damages, I meant all -- retrospective as well as prospective.

>>>>>A finding that a plaintiff was wronged is not the same thing as a judgement that a plaintiff was wronged.<<<<<<

What's the difference? Judgment, finding, ruling, decision, holding, etc. can all mean the same thing, depending on the context.

>>>>>>It is obvious to most people not named Larry Fafarman that I put a significantly higher amount of research into my comments than you.<<<<<<

The difference is that I do not waste a lot of time looking for quote mines that contradict common sense. I have to research a lot of subjects on this blog and cannot spend too much time in any one area, particularly not in an area that does not look promising of yielding any results.

Tuesday, July 04, 2006 3:44:00 PM  
Blogger Larry Fafarman said...

Voice In The Wilderness said...

>>>>> eliminate deposition of expert witnesses. <

Here you expose that you don't really understand the purpose of depositions.<<<<<<

I know what the purpose of depositions is not supposed to be, and that is to drive up attorney fee awards to enrich the ACLU and the ASUSC.

>>>>>> and supposedly had long paper trails of publications. <

In how many of these publications was their testimony sworn?<<<<<<

I see that you conveniently ignored the expert witness reports. That figures.

The expert witness reports are sworn written testimony.

Even without the expert witness reports and the depositions, the expert witnesses would have had no credibility if they had said things that conflicted with their publications.

The depositions of the expert witnesses were complete wastes of time and money.

Tuesday, July 04, 2006 10:06:00 PM  
Anonymous Voice In The Wilderness said...

> a claim that the plaintiff's rights were violated -- is declaratory relief, even if the court does not choose to call it that. <

If you want people to take you seriously you will have to use words in the same way that the rest of the world does. Changing definitions to suit your own misconceptions just shows you to be a lunatic. Of course this we already know.

> OK, it is all very confusing <

Only to you.

> What's the difference? Judgment, finding, ruling, decision, holding, etc. can all mean the same thing, depending on the context. <

They can only mean the same thing to someone who doesn't understand them.

> I do not waste a lot of time looking for quote mines that contradict common sense. <

Do they just come to you without effort?

> I have to research a lot of subjects on this blog and cannot spend too much time in any one area <

Try to spend at least the time necessary for you to understand something. You must be spreading yourself too thin. You are completely at sea.

> I know what the purpose of depositions is not supposed to be <

Too bad you don't know what it is supposed to be.

> I see that you conveniently ignored the expert witness reports. <

So you mistakenly believe that their publications are all sworn testimony? That figures. No wonder that you are a chronic loser in court.

> The depositions of the expert witnesses were complete wastes of time and money. <

They weren't to the people making them.

I see that you are now pushing out a large number of new articles to try to hide the fact that you are cowering in fear over the prospect of having to answer any questions.

Tuesday, July 04, 2006 11:03:00 PM  
Anonymous W. Kevin Vicklund said...

>>>>>>A finding of fact is not any form of relief. Only an order or decree is a form of relief or judgement. A finding of fact is a pre-requisite to the issuance of relief, but it is not, by itself, relief of any type, declarative or otherwise.<<<<<<

>>>As I said, a finding of fact that vindicates a (legal) claim of the plaintiff -- e.g., a claim that the plaintiff's rights were violated -- is declaratory relief, even if the court does not choose to call it that.<<<

No court, lawyer, judge, legal scholar, professor of law, politician, law, or legal dictionary calls a finding of fact declaratory relief because, by definition, IT IS NOT! No matter how many times you try to claim that it is, it simply, utterly, and irrevocably is not the same thing. No finding of fact is a court order or decree. All forms of relief or judgement are court orders or decrees. They are mutually exclusive.

>>>OK, it is all very confusing -- the main opinion and the concurring opinion are not clearly separated, and to add to the confusion, the same judge (McConnell, not McClellan) wrote both the main and concurring opinions. But what the section is called is not important -- what is important is what was said, and McConnell said that he thought those 10th circuit precedents about nominal damages should be overturned.<<<

Yet he still acknowledged that the law is clear that nominal damages and declaratory relief are separate entities, though he bellieves they should be otherwise. And in the other concurrence, Henry demolishes every one of McConnells arguments (thanks for pointing out the typo in my previous post). Furthermore, he shows that the 2nd, 3rd, 4th, 6th, 9th, and of course the 10th circuits all have case law that precludes a case from being mooted so long as the case contains a timely claim for nominal damages on constitutional grounds. I did some further research last night, and discovered that in addition to the circuits mentioned by Henry above, the 1st, 5th, 7th, 8th, and 11th circuits also have precedents for nominal damages precluding a case from being mooted - I haven't looked at the DC or Federal circuits yet, but that covers all the numbered circuits. In fact, a certain lawyer (White) from the TMLC filed an amicus curiae brief withthe 5th circuit to overturn a ruling of mootness on exactly this issue. A panel re-hearing declared the case to be not moot because of the claim for nominal damages. See the TMLC press release for details.

>>>>>>Oddly enough, even Justice Antonin Scalia finds that a claim for nominal damages precludes mootness even when claims for prospective relief (declarative and injunctive) would be ordinarily mooted <<<<<<

>>>Note that I highlighted "prospective." Your statement says nothing about retrospective belief. When I spoke about all claims being mooted except the claim for nominal damages, I meant all -- retrospective as well as prospective.<<<

The only retrospective claims were for nominal damages - the claims were for nominal damages, declarative relief, and injunctive relief. So to revise to your objections, Justice Scalia found that a claim for nominal damages precludes a case from mootness even when all other claims would be ordinarily mooted.

>>>>>>A finding that a plaintiff was wronged is not the same thing as a judgement that a plaintiff was wronged.<<<<<<

>>>What's the difference? Judgment, finding, ruling, decision, holding, etc. can all mean the same thing, depending on the context.<<<

And in the specific context we are talking about, they are distinctly different. A finding of fact permits relief to be granted, but is not a form of relief.

>>>The difference is that I do not waste a lot of time looking for quote mines that contradict common sense. I have to research a lot of subjects on this blog and cannot spend too much time in any one area, particularly not in an area that does not look promising of yielding any results.<<<

No, it's quite obvious that it doesn't take you long at all to find quote mines that contradict common sense - you've littered your blog with these quote mines. I, on the other hand, spend a lot of time making sure I'm not quote mining - regardless of whether the quotes themselves contradict common sense, I make sure they are accurate, faithful to the source intent, and true. Sometimes a fact doesn't meet common sense, but that doesn't make the fact any less true (common sense would indicate, for instance, that the sun revolves around the earth). Common sense is a poor barometer of legal and scientific realities.

Wednesday, July 05, 2006 7:04:00 AM  
Blogger Larry Fafarman said...

W. Kevin Vicklund said ( 7/05/2006 07:04:32 AM ) --

>>>>>>No court, lawyer, judge, legal scholar, professor of law, politician, law, or legal dictionary calls a finding of fact declaratory relief because, by definition, IT IS NOT!<<<<<<

I did not say that any "finding of fact" is a declaratory relief -- I only said that where the "fact" that is "found" (i.e., determined or held) by the court is that a legal claim of the plaintiff is true -- e.g., that the plaintiff's civil rights were violated, that the plaintiff was libeled -- then the finding of fact is "declaratory relief" (though it might not be called that if other kinds of relief -- e.g., injunctive relief or substantial damages -- are granted for the same cause of action).

Darwinists seem to have trouble in understanding simple, self-explanatory terms, and will quibble endlessly about the meaning of simple, everyday English words. The meaning of "declaratory relief:" is obvious -- the root word is "declare," which means to announce, proclaim, affirm, make known publicly, etc.. So declaratory relief is just an announcement, proclamation, affirmation, etc., by the court that the plaintiff has prevailed on a legal claim, without a requirement by the court that anybody do anything. An example of declaratory relief is a finding that the plaintiff was libeled (particularly where no other relief other than nominal damages is granted). Sometimes declaratory relief might be the basis for further legal action. A court case where there is only a claim for declaratory relief may border on mootness, because often the only relief to the plaintiff is the satisfaction of having proven a legal claim. 28 USC §2201 merely affirms the right of federal courts to grant declaratory relief even where no other relief is or can be granted: with some narrow exceptions concerning the IRS and free trade issues, "any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought" (emphasis added).

Another example of where I had to argue endlessly about the meaning of simple English words was in regard to the Supreme Court's statement that the district court in Edwards v. Aguillard had "properly concluded" that a "Monday morning battle of the experts" would be pointless. The statement meant that the SC agreed with the district court decision and did not mean that the SC had merely decided that the district court did not abuse its discretion. Believe it or not, even Ed Brayton agreed with my interpretation of this SC statement.

>>>>>>Furthermore, he shows that the 2nd, 3rd, 4th, 6th, 9th, and of course the 10th circuits all have case law that precludes a case from being mooted so long as the case contains a timely claim for nominal damages on constitutional grounds.<<<<<<

OK, I neglected to mention the 9th circuit before -- so it is just the 2nd, 6th, 9th and 10th circuits that clearly have such precedents. Go back and read what Judge McConnell actually said in Utah Animal Rights Coalition. And he said that the Supreme Court had never made such a ruling. Furthermore, he did not say that there was a restriction that the claim for nominal damages be on constitutional grounds. And he also said that he thought that these precedents should be struck down. sheeeesh

>>>>>In fact, a certain lawyer (White) from the TMLC filed an amicus curiae brief withthe 5th circuit to overturn a ruling of mootness on exactly this issue. A panel re-hearing declared the case to be not moot because of the claim for nominal damages.<<<<<

In this TMLC case, there was still a claim for retrospective declaratory relief affirming that the plaintiff's rights had been violated. When I spoke of all other claims being declared moot, I meant ALL -- retrospective as well as prospective, declaratory as well as non-declaratory.

I have already explained this in several ways, but I will try other ways. Suppose that a
court holds that all claims are moot except the claim for nominal damages. Then when the case proceeds to judgment, the court has three choices: (1) rule against all claims; (2) grant a claim that has already been declared moot; or (3) grant the nominal damages claim as a consolation prize. The only reasonable choice is No. 1, and if that is what the judgment on the merits is always going to be, then there might as well not be a judgment on the merits at all. Reductio ad absurdum. Q.E.D.. Another way of looking at this is that nominal damages are just proxies for other claims.

>>>>>>The only retrospective claims were for nominal damages - the claims were for nominal damages, declarative relief, and injunctive relief. So to revise to your objections, Justice Scalia found that a claim for nominal damages precludes a case from mootness even when all other claims would be ordinarily mooted.<<<<<<

You still haven not provided a citation for this Scalia opinion. I'll bet that there is some other retrospective claim involved.

Wednesday, July 05, 2006 11:19:00 AM  
Anonymous W. Kevin Vicklund said...

I'm at the other computer now. The following are links to court cases Colin provided a while back (or possibly additional cases I discovered in tracking down citations in the cases cited by Colin). To correct and clarify my earlier post: each case involves the awarding of attorney fees when the sole claim that prevailed was nominal damages - some of these cases had other claims that were mooted or dismissed. Also, while some are in html format, two are not - I will try to track down html formats for those in pdf format.

Buss v. Quigg (3rd, 2004) pdf
Robbins v. Chronister (10th, 2006)
Wagner v. Holyoke (1st, 2005)
Mercer v. Duke University (4th, 2004) pdf
BCF v. Boston (1st, 2005)

I also need to find the precedential line of cases Colin referred to that apply directly to the 3rd Circuit.

The dissent by Scalia is here. Note that while the case was not mooted because of the nominal damage claim, judgement was granted to the defendant because he held qualified immunity to damages. And there's an interesting point that arises out of this. Certain defandants have immunity or qualified immunity (qualified immunity means that immunity can be over-ridden by clearly settle case law, such as in section 2202 mentioned above) to damages. This includes an immunity to nominal damages. However, they are not immune to declarative or injunctive relief. In case after case, I have seen nominal damages treated the same as any other type of damages, except when certain types are specifically permitted or excluded. The point is this: nominal damages are retrospective, and are subject to the same standing and mootness requirements as any other retrospective relief. Retrospective relief is very difficult to moot - the main exceptions are inability to pay or receive damages (such as death of a party) and immunity from the claim (which is more of a standing issue). Prospective relief is much easier to moot.

Put another way:

nominal damages:retrospective relief::declaratory relief:prospective relief

Wednesday, July 05, 2006 11:53:00 AM  
Anonymous W. Kevin Vicklund said...

>>>I did not say that any "finding of fact" is a declaratory relief -- I only said that where the "fact" that is "found" (i.e., determined or held) by the court is that a legal claim of the plaintiff is true -- e.g., that the plaintiff's civil rights were violated, that the plaintiff was libeled -- then the finding of fact is "declaratory relief" (though it might not be called that if other kinds of relief -- e.g., injunctive relief or substantial damages -- are granted for the same cause of action).<<<

A "fact" that is "found" is just a fact that is found. It is not relief. Relief can only be granted by court order. If that finding is never commuted into an order, it provides no relief.

>>>Darwinists seem to have trouble in understanding simple, self-explanatory terms, and will quibble endlessly about the meaning of simple, everyday English words. The meaning of "declaratory relief:" is obvious -- the root word is "declare," which means to announce, proclaim, affirm, make known publicly, etc.. So declaratory relief is just an announcement, proclamation, affirmation, etc., by the court that the plaintiff has prevailed on a legal claim, without a requirement by the court that anybody do anything.<<<

The meaning of declaratory relief is indeed obvious - it is a granting of relief that is a declaration. But relief, from a legal standpoint, is only granted in a court order or decree. You keep on denying the plain meaning of relief. Declaratory relief contains two parts, not one - it must be a declaration, and it must be a form of relief.

>>>An example of declaratory relief is a finding that the plaintiff was libeled (particularly where no other relief other than nominal damages is granted). Sometimes declaratory relief might be the basis for further legal action. A court case where there is only a claim for declaratory relief may border on mootness, because often the only relief to the plaintiff is the satisfaction of having proven a legal claim. 28 USC §2201 merely affirms the right of federal courts to grant declaratory relief even where no other relief is or can be granted: with some narrow exceptions concerning the IRS and free trade issues, "any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought" (emphasis added).<<<

The bolded part doesn't just serve the purpose you ascribe - it also serves to allow multiple claims arise from the same action (ie, injunctive and declarative relief from a violation of civil rights).

>>>Another example of where I had to argue endlessly about the meaning of simple English words was in regard to the Supreme Court's statement that the district court in Edwards v. Aguillard had "properly concluded" that a "Monday morning battle of the experts" would be pointless. The statement meant that the SC agreed with the district court decision and did not mean that the SC had merely decided that the district court did not abuse its discretion. Believe it or not, even Ed Brayton agreed with my interpretation of this SC statement.<<<

And Judge Jones didn't violate this particular "precedent", regardless of whether "properly concluded" meant "within the range of the district court's discretion," which is what that language normally means.

>>>>>>Furthermore, he shows that the 2nd, 3rd, 4th, 6th, 9th, and of course the 10th circuits all have case law that precludes a case from being mooted so long as the case contains a timely claim for nominal damages on constitutional grounds.<<<<<<

>>>OK, I neglected to mention the 9th circuit before -- so it is just the 2nd, 6th, 9th and 10th circuits that clearly have such precedents. Go back and read what Judge McConnell actually said in Utah Animal Rights Coalition. And he said that the Supreme Court had never made such a ruling. Furthermore, he did not say that there was a restriction that the claim for nominal damages be on constitutional grounds. And he also said that he thought that these precedents should be struck down. sheeeesh<<<

Unfortunately for you, I not only read McConnell's concurrence, I read Henry's concurrence, which you obviously and unsurprisingly did not. Henry, not McConnell, was the judge who identified that the preclusion of mootness was on constitutional grounds. According to Henry's research, the 2nd, 3rd, 4th, 6th, 9th, and 10th clearly had such precedents, and more current by 25-30 years than any opposing precedent. According to my research, the 1st, 5th, 7th, 8th, and 11th also have clear precedents dating to within the last 15 years. I also found a whole bunch of recent 2nd, 3rd, 4th, 6th, 9th, and 10th precedents while I was looking for the others.

>>>>>In fact, a certain lawyer (White) from the TMLC filed an amicus curiae brief withthe 5th circuit to overturn a ruling of mootness on exactly this issue. A panel re-hearing declared the case to be not moot because of the claim for nominal damages.<<<<<

>>>In this TMLC case, there was still a claim for retrospective declaratory relief affirming that the plaintiff's rights had been violated. When I spoke of all other claims being declared moot, I meant ALL -- retrospective as well as prospective, declaratory as well as non-declaratory.<<<

WRONG! First, declaratory relief can only be granted if specifically requested. Secondly, it is only available as prospective relief, not as retrospective relief. Third, the Supreme Court precedent is that the proper relief for a finding that a plaintiff's rights had been violated in the past is nominal damages. The only claim remaining after all other claims were declared moot was nominal damages. There was no live claim for declaratory relief, because it had been declared moot.

No matter what you want to believe, the legal reality is this: A finding that a violation of civil rights occured is not declaratory relief.

>>>I have already explained this in several ways, but I will try other ways. Suppose that a
court holds that all claims are moot except the claim for nominal damages. Then when the case proceeds to judgment, the court has three choices: (1) rule against all claims; (2) grant a claim that has already been declared moot; or (3) grant the nominal damages claim as a consolation prize. The only reasonable choice is No. 1, and if that is what the judgment on the merits is always going to be, then there might as well not be a judgment on the merits at all. Reductio ad absurdum. Q.E.D.. Another way of looking at this is that nominal damages are just proxies for other claims.<<<

Nominal damages are primary claims. They are not proxies, they do not require other claims to be made. They are sufficient, by themselves, to attain standing. They can be consolation prizes, but that does not mean they all are. Declaratory relief is even less of a victory than nominal damages according to your logic, yet you hold onto them as if it were some holy grail. Nominal damages can serve an important purpose - if nothing else, they can establish case law so that a qualified immunity defense is nullified in case of a similar action.

Let's take a purely hypothetical example. Say in Dover the judge ruled the declarative and injunctive claims moot, but ruled on the nominal damages claim in the same manner as he actually did. Let's further say that it was appealled all the way to the Supreme Court, which affirmed Judge Jones decision. That means that it has now been clearly decided as precedent that ID can not be taught or introduced in science classes. If a state board of education whose officers enjoy qualified immunity instituted a policy facially similar to the Dover policy, their immunity would now be void and they could be sued for damages, as well as the usual prospective relief.

>>>You still haven not provided a citation for this Scalia opinion. I'll bet that there is some other retrospective claim involved.<<<

And you lose the bet. Though I also bet that you'll repeat your previous lies about findings of violations being declaratory relief.

Wednesday, July 05, 2006 1:45:00 PM  
Blogger Larry Fafarman said...

W. Kevin Vicklund said ( 7/05/2006 01:45:43 PM ) --
>>>>>>Relief can only be granted by court order. If that finding is never commuted into an order, it provides no relief.<<<<<<

The term "order" doesn't signify anything. There can be an "order" even when there is no relief at all -- the "order" can just be an instruction to the court clerk to enter a judgment.

>>>>>>And Judge Jones didn't violate this particular "precedent", regardless of whether "properly concluded" meant "within the range of the district court's discretion," which is what that language normally means.<<<<<<

The term "properly concluded" meant that the Supreme Court agreed with the district court's decision in Edwards v. Aguillard -- no other interpretation is possible. So Judge Jones did the opposite of what the SC thought was proper, and the burden of proof is upon those who believe that he had a satisfactory reason for doing so.

>>>>>WRONG! First, declaratory relief can only be granted if specifically requested.<<<<<

There is no such requirement in federal law or federal court rules. Even 28 USC §2201, which authorizes the courts to grant declaratory relief, does not have such a requirement. 28 USC §2201 does not even expressly use the term "declaratory relief ."

>>>>>it is only available as prospective relief, not as retrospective relief.<<<<<<

Wrong. An example of retrospective declaratory relief is a finding that a plaintiff was libeled. Declaratory relief is prospective only when it can be used as the basis for future legal action.

>>>>.... the Supreme Court precedent is that the proper relief for a finding that a plaintiff's rights had been violated in the past is nominal damages. <<<<<

In Utah Animal Rights Coalition, Judge McConnell said that there was no express Supreme Court precedent concerning the effect of a nominal damages claim on mootness.

>>>>>Nominal damages are primary claims. They are not proxies, they do not require other claims to be made.<<<<<<

Judge McConnell and I disagree.

>>>>>>Declaratory relief is even less of a victory than nominal damages according to your logic, yet you hold onto them as if it were some holy grail.<<<<<

If, for example, you were seriously libeled, which would you rather have: (1) a declaration by the court that you were libeled, or (2) $1 in nominal damages?

You can quote mine precedents concerning nominal damages until you are blue in the face, but what can you achieve? Do you really think that you are going to have an influence on how courts decide these cases? The facts are simple -- if claims for nominal damages always prevent mootness, then everyone would claim nominal damages and no cases could ever be mooted. And to justify a grant of nominal damages where all other claims were declared moot, a court would have to grant some claim that was declared moot.

Nominal damages are just a symbolic token of vindication on some other claim. Nominal damages are not intended to be a gimmick to prevent mootness.

Wednesday, July 05, 2006 4:44:00 PM  
Blogger Larry Fafarman said...

W. Kevin Vicklund said ( 7/05/2006 11:53:33 AM ) --
>>>>>
. The following are links to court cases Colin provided a while back
Buss v. Quigg (3rd, 2004) pdf
Robbins v. Chronister (10th, 2006)
Wagner v. Holyoke (1st, 2005)
Mercer v. Duke University (4th, 2004) pdf
BCF v. Boston (1st, 2005)
>>>>>>

Instead of just giving me a list of cases, why don't you quote parts that you think are applicable?

>>>>The dissent by Scalia is here.<<<<<<

This is worthless as Supreme Court precedent. This is just a dissenting opinion in a denial of certiorari (rejection for review).

>>>>>Note that while the case was not mooted because of the nominal damage claim<<<<<

Scalia actually said,
".....by the time the Fourth Circuit panel ruled, the cadets had graduated. This mooted the declaratory and injunctive relief claims (the only claims the current Superintendent might have inherited when he succeeded Bunting), but the money damages claim against Bunting in his personal capacity remained, and raised the same constitutional question. In accordance with its obligation under Saucier, the panel first considered whether the Establishment Clause forbade the prayer

Scalia was mistaken. The declaratory relief claim -- the claim that the prayer violated the Establishment Clause -- was not mooted, because the court continued to consider that claim. Also, even if Scalia's above statement about nominal damages had been in a majority opinion, it should be considered dictum because he never said that he was addressing the question of whether a nominal damages claim should be sufficient to prevent mootness. Anyway, Kevin, this is just another quote mine. You Darwinists complain about Darwinists being quote mined, but you do plenty of quote mining yourselves.

>>>>>>nominal damages:retrospective relief::declaratory relief:prospective relief<<<<<<

You just keep making up all these rules that don't exist.

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

Off-topic item:

Comments posted on older threads might go unnoticed because this blog does not list the most recent comments posted anywhere on the blog. Therefore, I suggest that when a comment is posted on an old thread (and an old thread may be the most appropriate place for a comment), a link or location for the comment be posted in a notice on a new thread. However, I don't feel that it is necessary to do this if, say, a comment is under one of the five or so most recent posts.

Wednesday, July 05, 2006 6:31:00 PM  
Anonymous W. Kevin Vicklund said...

>>>The term "order" doesn't signify anything. There can be an "order" even when there is no relief at all -- the "order" can just be an instruction to the court clerk to enter a judgment.<<<

Did I ever claim that all orders are a form of relief? No. All relief/judgement is granted by court order/decree. Not all court orders/decrees grant relief/judgement. The order/decree is the most important part of any decision. Without an order/decree, all you have is ink-smeared toilet paper. Do I need to use smaller words?

>>>The term "properly concluded" meant that the Supreme Court agreed with the district court's decision in Edwards v. Aguillard -- no other interpretation is possible.<<<

It means that the district court reached a proper conclusion, not that that was the only proper conclusion. That's the point of discretionary judgement - it permits district courts, whom are the closest to the case, wide latitude in their decisions to accomodate the unique features of each case, a well as reducing the load on the appellate courts. But this whole line of inquiry is moot, anyway:

>>>So Judge Jones did the opposite of what the SC thought was proper, and the burden of proof is upon those who believe that he had a satisfactory reason for doing so.<<<

Survey says: XXXXXXXXXXXXX! Wrong, sir! Judge Jones did not do the opposite of what the Supreme Court thought proper, as he did not consider expert witness testimony for the purpose prong, which is the only prong that was in consideration. I'll go into this in more detail in your Inanity thread when I reach it.

>>>>>>WRONG! First, declaratory relief can only be granted if specifically requested.<<<<<<

>>>There is no such requirement in federal law or federal court rules. Even 28 USC §2201, which authorizes the courts to grant declaratory relief, does not have such a requirement. 28 USC §2201 does not even expressly use the term "declaratory relief ."<<<

And yet another point in which you are wrong. 28 USC §2201 states it expressly ("any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration"). The burden is generally on the party making the claim, not the court, to plead the claim. Declaratory judgement is not one of the exceptions. BTW, nice non sequitor re: what the statute calls it.

>>>>>it is only available as prospective relief, not as retrospective relief.<<<<<<

>>>Wrong. An example of retrospective declaratory relief is a finding that a plaintiff was libeled. Declaratory relief is prospective only when it can be used as the basis for future legal action.<<<

Wrong. A finding that a plaintiff was libeled is a finding that a plaintiff was libeled, and not a form of relief. The proper relief for such a finding is (at least) nominal damages. The proper relief for a finding that a plaintiff continues to be libeled is declarative relief. The proper relief for a finding that a plaintiff is likely to be libeled is injunctive relief. Notice the tenses. "Was" indicates retrospective relief is appropriate, whereas "to be" indicates prospective relief is appropriate. Declarative relief is a declaration that, e.g., so long as the current situation exists, my rights are or can be violated. Once that situation changes, the declaration is no longer valid, and thus moot (allowing for exceptions to the mootness doctrine).

>>>>>>.... the Supreme Court precedent is that the proper relief for a finding that a plaintiff's rights had been violated in the past is nominal damages. <<<<<<

>>>In Utah Animal Rights Coalition, Judge McConnell said that there was no express Supreme Court precedent concerning the effect of a nominal damages claim on mootness.<<<

I wasn't talking about mootness, I was talking about the proper form of retrospective relief for a past violation of rights. The Supreme Court precedent on that is crystal clear.

>>>>>Nominal damages are primary claims. They are not proxies, they do not require other claims to be made.<<<<<<

>>>Judge McConnell and I disagree.<<<

No, only you disagree. He even notes occasions where a request for nominal damages is appropriate. Besides, the Supreme Court decision in Faragher makes it crystal clear that nominal damages do not require any other claim to be made.

>>>If, for example, you were seriously libeled, which would you rather have: (1) a declaration by the court that you were libeled, or (2) $1 in nominal damages?<<<

Guess what? An award of nominal damages give me both.

>>>You can quote mine precedents concerning nominal damages until you are blue in the face, but what can you achieve? Do you really think that you are going to have an influence on how courts decide these cases? The facts are simple -- if claims for nominal damages always prevent mootness, then everyone would claim nominal damages and no cases could ever be mooted.<<<

First of all, I'm not the one who's been quote mining. Secondly, not all cases are even eligible for a claim for nominal damages. Third, may plaintiffs don't care if their case gets mooted, as long as the end result is in their favor. Fourth, not everybody knows about nominal damages and mootness. Fifth, not everybody is willing to pay the costs to litigate a case to the bitter end if the result is in their favor or nominal damages won't provide the type of relief they want. Sixth, in fee-shifting cases, the Farrar ruling is a mighty big disincentive to a lawyer if it looks like the award of nominal damages won't meet any of the three Farrar tests.

There you go. Five reasons why people don't take advantage of the mootness preclusion. And btw, since compensatory damages also automatically preclude mootness, shouldn't every plaintiff make a claim for compensatory damages under your logic?

>>>And to justify a grant of nominal damages where all other claims were declared moot, a court would have to grant some claim that was declared moot.<<<

Wrong. Nominal damages only require a past violation. Mooting claims for prospective relief don't moot claims for retrospective relief. Nominal damages can and do survive on their own - they are not beholden to any other claim, and can even justify secondary relief, such as punitive damages or costs and fees.

>>>Nominal damages are just a symbolic token of vindication on some other claim. Nominal damages are not intended to be a gimmick to prevent mootness.<<<

Faragher. From this point on, every time you claim that nominal damages are just vindication on some other claim, all I have to do is point out Faragher.

Wednesday, July 05, 2006 9:24:00 PM  
Anonymous W. Kevin Vicklund said...

>>>Instead of just giving me a list of cases, why don't you quote parts that you think are applicable?<<<

Read the whole thing and maybe you'd learn something.

>>>>>>The dissent by Scalia is here.<<<<<<

>>>This is worthless as Supreme Court precedent. This is just a dissenting opinion in a denial of certiorari (rejection for review).<<<

Exactly what I claimed it was.

>>>>>>Note that while the case was not mooted because of the nominal damage claim<<<<<<

>>>Scalia actually said,
".....by the time the Fourth Circuit panel ruled, the cadets had graduated. This mooted the declaratory and injunctive relief claims (the only claims the current Superintendent might have inherited when he succeeded Bunting), but the money damages claim against Bunting in his personal capacity remained, and raised the same constitutional question. In accordance with its obligation under Saucier, the panel first considered whether the Establishment Clause forbade the prayer<<<

As I accurately reported.

>>>Scalia was mistaken.<<<

That's your fall back position on everything - "Larry can't be wrong, so the expert must be wrong." You know what we call a person who constantly makes that argument? A loser. You just lost this argument. Every Federal Court recognizes that declarative and injunctive relief is prospective only. That's a whole lot of judges that are wrong if you are right. Sorry, but I'm going to go with the judges, the lawyers, the laws, and the legal dictionaries on this one. But go ahead, make that argument in court. You just might manage to make a judge die from laughing too hard.

>>>The declaratory relief claim -- the claim that the prayer violated the Establishment Clause -- was not mooted,<<<

No, that's the nominal damages claim. The declaratory relief claim is moot because there is no longer a situation in which the plaintiffs can be affected by the defendants behavior.

>>>because the court continued to consider that claim. Also, even if Scalia's above statement about nominal damages had been in a majority opinion, it should be considered dictum because he never said that he was addressing the question of whether a nominal damages claim should be sufficient to prevent mootness.<<<

I agree that this is no more than dictum - I never claimed that it wa precedential.

>>>Anyway, Kevin, this is just another quote mine. You Darwinists complain about Darwinists being quote mined, but you do plenty of quote mining yourselves.<<<

I agree, you are quote mining the decision - you are claiming that it says what it clearly doesn't say. Unfortunately for you, I didn't quote mine, as what I reported (the declaratory and injunctive relief claims were moot, but the nominal damages claim was not) is indeed the proper context of the dissent.

>>>>>>nominal damages:retrospective relief::declaratory relief:prospective relief<<<<<<

>>>You just keep making up all these rules that don't exist.<<<

I'm trying to simplify it into something your tiny brain can understand. I guess you're not even up to handling the SATs. It would really help if you would stop making up all these weird definitions that have no basis in any reality other than LarryLand.

Maybe this will help?

Nominal damages = past
Declaratory relief = present
Injunctive relief = future

Wednesday, July 05, 2006 10:16:00 PM  
Blogger Larry Fafarman said...

W. Kevin Vicklund said ( 7/05/2006 10:16:05 PM ) --

>>>>>Read the whole thing and maybe you'd learn something.<<<<<

Learn what? A lot of useless details about the individual cases?

<<<<<>>>This is worthless as Supreme Court precedent. This is just a dissenting opinion in a denial of certiorari (rejection for review).<<<

Exactly what I claimed it was. <<<<<<

Like Judge McConnnell said, there is no Supreme Court precedent that says that nominal damages alone prevent mootness.

<<<<<>>>Scalia was mistaken.<<<

That's your fall back position on everything - "Larry can't be wrong, so the expert must be wrong." <<<<<<<

And your fallback positions are that Larry can't be right or that Larry can't have a valid point.

>>>>>Every Federal Court recognizes that declarative and injunctive relief is prospective only.<<<<<<

Injunctive relief is of course prospective, but declaratory relief can be retrospective. You are just making up a lot of definitions and rules that are nowhere to be found in the literature.

<<<<<<>>>The declaratory relief claim -- the claim that the prayer violated the Establishment Clause -- was not mooted,<<<

No, that's the nominal damages claim. The declaratory relief claim is moot because there is no longer a situation in which the plaintiffs can be affected by the defendants behavior.<<<<<<

The declaratory relief claim was not moot, because the court continued to consider it. You have this thing about nominal damages. The plaintiff does not have to ask for nominal damages, and not asking for nominal damages has no effect on the outcome of the case. Nominal damages are kind of a joke, like a booby prize. I would never ask for them myself because I consider them to be frivolous. I would just as soon see nominal damages outlawed, as they should be if people are going to use them as a gimmick to try to make cases unmootable. The surest way to put an end to this nonsense is to have a rule setting a minimum damages claim of $21, an amount that would trigger the 7th Amendment and give the defendant the right to ask for a jury trial. If the system is broken, then it should be fixed.

>>>>>I agree that this is no more than dictum - I never claimed that it wa precedential.<<<<<

I am saying it would be dictum even it were in a majority opinion.

>>>>>I agree, you are quote mining the decision - you are claiming that it says what it clearly doesn't say.<<<<<<

What Scalia said here about nominal damages was unimportant because the question of whether nominal damages alone prevent mootness was not an issue in the case. Scalia did not discuss this question at all.

>>>>>>>
Maybe this will help?

Nominal damages = past
Declaratory relief = present
Injunctive relief = future
<<<<<<<<

No, that does not help. In fact, that's ridiculous -- you are just making up your own arbitrary rules and definitions.

Wednesday, July 05, 2006 11:43:00 PM  
Blogger Larry Fafarman said...

W. Kevin Vicklund said ( 7/05/2006 09:24:36 PM ) --

>>>>>>Did I ever claim that all orders are a form of relief? No. All relief/judgement is granted by court order/decree.<<<<<<

If declaratory relief does not require that anything be done, then what is there to "order"?

Judges will often use the term "order" as a name for a large number of different final decisions. A dismissal of a case can be called an "order." An order can just be an instruction to the court clerk to enter a decision in the records.

People in the legal field often use terms very loosely. For example, Jones called his 139-page Dover opinion a "memorandum opinion," but this term actually means an outline or a summary of an opinion instead of being the final opinion, which it was.

>>>>>It means that the district court reached a proper conclusion, not that that was the only proper conclusion<<<<<<

Then why did the Supreme Court create confusion by saying that the district court had "properly concluded"? Why didn't the Supreme Court just say that the district court had not abused its discretion? Why would the Supreme Court deliberately speak in riddles?

>>>>>>Judge Jones did not do the opposite of what the Supreme Court thought proper, as he did not consider expert witness testimony for the purpose prong, which is the only prong that was in consideration.<<<<<<

What do you mean, the only prong that was in consideration? He also considered the effect prong. Because of the religious motivations of the school board members, he could have ruled solely on the basis of the purpose prong. The board members had only a religious purpose -- they had no secular purpose, because they did not understand intelligent design. No expert testimony was needed -- the whole trial was overkill. Expert witness testimony is of questionable value even for the effect prong, because the advanced knowledge presented by the expert witnesses far exceeded what typical well-informed citizens would be expected to know.

As for nominal damages, you regard them as some kind of fetish that has magical powers to prevent a case from being declared to be moot. The law is complicated enough without you making it more complicated by introducing your own arbitrary rules and definitions. You make the law look more intimidating than it really is or than it really should be. The law is supposed to be moving now in the direction of plain English and you are trying to move in the opposite direction. Discussing these legal matters with you is like trying to discuss things with the characters that Alice encountered in her Adventures in Wonderland -- words don't mean what they say and reasoning does not follow logic.

Thursday, July 06, 2006 3:57:00 AM  
Anonymous Voice In The Wilderness said...

> The problem is that you don't make serious arguments or ask serious questions, so there is nothing to answer. <

I will make this simple for you. I will ask the most innocuous question that I have asked recently. If you can answer it, you might be able to step up to some tougher ones, but I doubt it.

A while back you made a point out of the fact that a document presented in a Pennsylvania court was notarized by a Texas notary. What do you believe is wrong with that?

There is a very simple question for a start. Now everyone will be able to see that you will either ignore the post or find some breathtakingly inane excuse why you won't answer.

> Here is a typical argument from you: Q: Why do you think that irreducible complexity is unscientific? Your answer: Irreducible complexity is unscientific because it is unscientific. <

Here is a typical argument from you: "Irreducible complexity is scientific because it is scientific." While I have never made the argument that you have cited, you are constantly making the type of statements that I have just cited. You believe that repeating your unsupported claims is proof of them. You are fooling nobody but yourself.

> Furthermore, I am under no obligation to answer all or any of the comments on this blog. <

Then you show yourself to be a hypocrite when you criticize Ed Brayton.

> I never demanded that he answer my comments. <

Why should he answer your inane questions?

> preparing new posts, which is no easy task because many of them require a lot of research. <

You're joking, right. How much time does it take to post the words of Dylan's song or your recent poem? Mostly you just take something that you don't understand, even linking to it, and then give your misinterpretation of it. If it takes a lot of time for you to do this, you sure have little to show for it. Perhaps you could save a little time by stopping your impersonations. (I have to admit that they have decreased in number recently. There was only the pathetic post you labeled "Anonymous".

Well here it is, folks. Larry is a coward and a hypocrite. I gave him one very clear cut and innocuous question and he will duck it so as not to further reveal his ignorance. Naturally he will give a lame excuse for not doing so.

I can just see you frantically trying to find new songs and poems to post to distract people from seeing that you are petrified by questions. You only seem to know two ways to "debate". One is to repeat unsupported claims enlessly in the hope that they will eventually make sense. Another is to either write ad hominems or accuse others of them although you still have shown that you don't understand the term any more than you understand "declaratory relief".

Thursday, July 06, 2006 8:09:00 AM  
Anonymous Voice In The Wilderness said...

> If declaratory relief does not require that anything be done, then what is there to "order"? <

You don't understand what a court order is, as shown by your next paragraph which is not worth copying.

> People in the legal field often use terms very loosely. <

People in the legal field are the least likely of all to use terms loosely.

> For example, Jones called his 139-page Dover opinion a "memorandum opinion," but this term actually means an outline or a summary of an opinion instead of being the final opinion, which it was. <

Some, not all, final opinions are memorandum opinions as was this one.

> Then why did the Supreme Court create confusion by saying that the district court had "properly concluded"? Why didn't the Supreme Court just say that the district court had not abused its discretion? <

They seemed to have spoken quite clearly. Only a lunatic would be confused.

> Why would the Supreme Court deliberately speak in riddles? <

Why would you ask such a hypothetical question? They haven't spoken in riddles yet, deliberately or otherwise.

> words don't mean what they say and reasoning does not follow logic. <

Congratulations Larry(?). Nobody has described your blog with more precision.

Thursday, July 06, 2006 8:19:00 AM  
Blogger Larry Fafarman said...

Voice In Wilderness said --

You stupid fathead -- you posted the same comment in four different places. It was not worth being posted in one. So I'll have to answer it in the different places (on what other blog do you think that you could get away with this crap?)

>>>>>A while back you made a point out of the fact that a document presented in a Pennsylvania court was notarized by a Texas notary. What do you believe is wrong with that?<<<<<<

I already gave you my answer to that question -- I said that I'll answer that when you tell me what is wrong with a county sheriff serving process on a state or federal office. A sheriff's office did not tell me why they wouldn't do it. In another case, another sheriff's office was willing to serve process on a state office.

<<<<<<> Furthermore, I am under no obligation to answer all or any of the comments on this blog. <

Then you show yourself to be a hypocrite when you criticize Ed Brayton.<<<<<<

No -- what makes Brayton a cowardly hypocrite is that he pretends to be tolerant of opposing views, then posts articles directly attacking me and my ideas and won't let me defend myself on his blog. And I never demanded that Ed respond to my comments posted on his blog.

<<<<<<> I never demanded that he answer my comments. <

Why should he answer your inane questions?<<<<<<

Why should I answer yours? Furthermore, you are demanding that I answer yours -- many bloggers respond little or not at all to comments posted on their blogs.

>>>>>You're joking, right. How much time does it take to post the words of Dylan's song or your recent poem?<<<<<<

Some articles require more research than others, moron. And that was not a poem -- that was another song.

>>>>>you don't understand the term any more than you understand "declaratory relief". <<<<<<

What would you call, say, a finding that a plaintiff has been libeled? Monetary relief? Injunctive relief?

As for nominal damages, you and Kevin Vicklund consider them to be a fetish with some kind of magical power to prevent cases from being mooted. That is not law -- it's voodoo.

I am still wondering, VIW -- certainly the amusement you get here is not worth all the time that you spend here. My "Philadelphia Lawyer" song lampooning those shysters who represented the Dover plaintiffs was one of the few funny things that I have posted on this blog.

Thursday, July 06, 2006 9:40:00 AM  
Anonymous Voice In The Wilderness said...

> you posted the same comment in four different places. <

And you dodged my question on four different places.

> I already gave you my answer to that question <

No. You dodged it in four different places.

> I said that I'll answer that when you tell me what is wrong with a county sheriff serving process on a state or federal office. A sheriff's office did not tell me why they wouldn't do it. In another case, another sheriff's office was willing to serve process on a state office. <

Is there anyone except this idiot who can see a relation between my question and his? This shows his cowardace. His lunacy has long since been demonstrated.

> what makes Brayton a cowardly hypocrite is that he pretends to be tolerant of opposing views <

He doesn't suffer fools gladly but he does allow opposing views on his blog. When someone posts something with which he disagrees, he gives his reasons, rather than the personal attacks which seem to be your only weapons.

> I never demanded that Ed respond to my comments posted on his blog.

> many bloggers respond little or not at all to comments posted on their blogs. <

There are many reasons that they may not. Your reason is that you are afraid to show your ignorance. Don't worry, you have nothing to lose. Everyone already has seen your ignorance displayed on this blog.

> Some articles require more research than others <

Your articles seem to be the result of a word search followed by the inevitable misinterpretation.

> What would you call, say, a finding that a plaintiff has been libeled? Monetary relief? Injunctive relief? <

I would call it a finding that a plaintiff has been libeled. Relief may be provided along with the finding but the finding is never relief in itself.

> As for nominal damages, you and Kevin Vicklund consider them to be a fetish with some kind of magical power to prevent cases from being mooted. That is not law -- it's voodoo. <

No. It is your misunderstanding of the situation, despite Kevin's attempts to educate you, that are voodoo. You should not make the assumption that if you don't understand something that means that the explanation is not simple and obvious to sane people.

> I am still wondering, VIW -- certainly the amusement you get here is not worth all the time that you spend here. <

It is worth every minute of it. In contrast, the time you waste trying to convince people that black is white doesn't seem very productive for you.

> My "Philadelphia Lawyer" song lampooning those shysters who represented the Dover plaintiffs was one of the few funny things that I have posted on this blog. <

The fact that you would post it is funny. You are funny. The funniest thing is probably your impersonations. I expected to see you post as "anonymous" again and congratulate yourself for your latest efforts. The funniest were your pathetic attempts to impersonate your brother, the real Dave. Does anyone else have any favorites?

Meanwhile we get yet another example of your cowardice, you pathetic jackass.

Thursday, July 06, 2006 11:13:00 AM  
Anonymous W. Kevin Vicklund said...

>>>Like Judge McConnnell said, there is no Supreme Court precedent that says that nominal damages alone prevent mootness.<<<

Correct. There is no single Supreme Court decision that squarely faces that issue. However, the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 9th, 10th, and 11th Circuit Courts have each concluded that the precedents from several different Supreme Court decisions serve to create that precedent when combined. We've only found one judge that is on record as disagreeing with that interpretation.

<<<<<>>>Scalia was mistaken.<<<

That's your fall back position on everything - "Larry can't be wrong, so the expert must be wrong." <<<<<<<

>>>And your fallback positions are that Larry can't be right or that Larry can't have a valid point.<<<

I don't have to fall back to that position - I have the facts on my side. Scalia was right, the 4th court did declare the declaratory relief claim moot, and only proceeded on the damages claim. How do I know? I read the 4th Circuit Court's decision. Even the plaintiff admitted that the declaratory relief claim was moot.

But here's a freebie for you. A party can file a "Motion for the Suggestion of Mootness" under FRCP Rule 12(b)(6).

>>>>>Every Federal Court recognizes that declarative and injunctive relief is prospective only.<<<<<<

>>>Injunctive relief is of course prospective, but declaratory relief can be retrospective. You are just making up a lot of definitions and rules that are nowhere to be found in the literature.<<<

Declarative relief is a court order declaring the existing rights and legal relations of the parties. If the relationship alters, that declaration is no longer valid. Therefore, it is prospective relief. QED

>>>The declaratory relief claim was not moot, because the court continued to consider it.<<<

Not according to the 4th Circuit Court, the plaintiffs, the defendants, or Judge Scalia. They all agreed that the declaratory relief claim was moot. What the court considered was the claim for damages. Here's what the 4th Circuit Court opinion said in it's intro:

"Because the Plaintiffs have now graduated from VMI, their claims for declaratory and injunctive relief are moot, and we vacate the district court's judgment insofar as it awarded such relief. In assessing the Plaintiffs' claim for damages, we agree with the district court that the supper prayer violates the Establishment Clause of the First Amendment, but that General Bunting is nevertheless entitled to qualified immunity."

Mellen v. Bunting

>>>You have this thing about nominal damages. The plaintiff does not have to ask for nominal damages, and not asking for nominal damages has no effect on the outcome of the case.<<<

The plaintiff does have to at least ask for some form of damages, that is true. But damages of any type, since they are retrospective, should normally preclude mootness. As far as not asking for nominal damages not having an effect on the outcome of the case, I think Alpha Iota Omega would have to disagree with you there.

>>>Nominal damages are kind of a joke, like a booby prize. I would never ask for them myself because I consider them to be frivolous. I would just as soon see nominal damages outlawed, as they should be if people are going to use them as a gimmick to try to make cases unmootable. The surest way to put an end to this nonsense is to have a rule setting a minimum damages claim of $21, an amount that would trigger the 7th Amendment and give the defendant the right to ask for a jury trial. If the system is broken, then it should be fixed.<<<

Here's a suggestion: write to your Congressthing. Denying what they can and can't do doesn't change what they can and can't do, but having the laws rewritten can.

>>>>>>I agree that this is no more than dictum - I never claimed that it wa precedential.<<<<<<

>>>I am saying it would be dictum even it were in a majority opinion.<<<

As I said, I agree. Oh look, I just admitted you're right.

>>>No, that does not help. In fact, that's ridiculous -- you are just making up your own arbitrary rules and definitions.<<<

They may be my own rules and definitions, but they are based upon hundreds of court decisions and a few legal definitions. I guess you can't even understand logic a 3rd grader can grasp. Sorry, I don't think I can make it any simpler than I have.

Thursday, July 06, 2006 12:45:00 PM  
Anonymous W. Kevin Vicklund said...

>>>If declaratory relief does not require that anything be done, then what is there to "order"?<<<

An order to issue a declaration of the existing rights and legal relationships of the parties.

>>>Judges will often use the term "order" as a name for a large number of different final decisions.<<<

Wow, imagine that. Judges actually use the proper legal terms. I think I may have a heart attack.

>>>A dismissal of a case can be called an "order." An order can just be an instruction to the court clerk to enter a decision in the records.<<<

Aside from stating the obvious, do you have any actual point to make?

>>>People in the legal field often use terms very loosely. For example, Jones called his 139-page Dover opinion a "memorandum opinion," but this term actually means an outline or a summary of an opinion instead of being the final opinion, which it was.<<<

A memorandum opinion is an opinion that is not precedential. Since no District Court opinion can be precedential, all District Court opinions are memorandum opinions. And in the 9th circuit, they can't even be called opinions unless they are precendential.

>>>>>It means that the district court reached a proper conclusion, not that that was the only proper conclusion<<<<<<

>>>Then why did the Supreme Court create confusion by saying that the district court had "properly concluded"? Why didn't the Supreme Court just say that the district court had not abused its discretion? Why would the Supreme Court deliberately speak in riddles?<<<

It's standard language that the appellate courts use. Take it up with them. It was perfectly clear to me what was meant.

>>>>>>Judge Jones did not do the opposite of what the Supreme Court thought proper, as he did not consider expert witness testimony for the purpose prong, which is the only prong that was in consideration.<<<<<<

>>>What do you mean, the only prong that was in consideration?<<<

I meant "...in consideration by the Supreme Court."

>>>He also considered the effect prong. Because of the religious motivations of the school board members, he could have ruled solely on the basis of the purpose prong. The board members had only a religious purpose -- they had no secular purpose, because they did not understand intelligent design. No expert testimony was needed -- the whole trial was overkill. Expert witness testimony is of questionable value even for the effect prong, because the advanced knowledge presented by the expert witnesses far exceeded what typical well-informed citizens would be expected to know.<<<

Of course, he wouldn't know until after the trial whether he could rule solely on the religious motivation (and he didn't have a choice to avoid the endorsement test, in any case, unless he was a judicial activist). And I have a sneaking suspicion your definition of "well-informed" matches my definition of "poorly-informed".

>>>As for nominal damages, you regard them as some kind of fetish that has magical powers to prevent a case from being declared to be moot.<<<

And I also have a fetish that damages have the magical power to prevent a case from being declared moot. Even McConnell agrees with me on that: In explanation, the Court relied on the unexceptional proposition that "'by definition claims for past damages cannot be deemed moot.'" I guess McConnell has a fetish for compensatory damages, eh? They're VOODOO!

>>>The law is complicated enough without you making it more complicated by introducing your own arbitrary rules and definitions. You make the law look more intimidating than it really is or than it really should be. The law is supposed to be moving now in the direction of plain English and you are trying to move in the opposite direction. Discussing these legal matters with you is like trying to discuss things with the characters that Alice encountered in her Adventures in Wonderland -- words don't mean what they say and reasoning does not follow logic.<<<

Let's see. I claim that:

Nominal damages are a form of damages. You claim they aren't.

Declaratory relief is a form of relief. You claim that it's not.

When judges say something has been mooted, it has been mooted. You claim that it has not been mooted.

When judges say they are proceeding on a claim for nominal damages, they are proceeding on a claim for nominal damages. You claim they are proceeding on a claim for declaratory relief.

Who's the Mad Hatter, again?

Thursday, July 06, 2006 1:41:00 PM  
Anonymous W. Kevin Vicklund said...

>>>What would you call, say, a finding that a plaintiff has been libeled? Monetary relief? Injunctive relief?<<<

I'd call it a finding of fact, and thus a basis for a judgement of damages. If it is ongoing, I'd also call it a basis for a declarative judgement and an injunctive judgement.


Example 1. Jonah owns a newspaper. Jonah prints several articles libelling Peter. Peter sues, claiming damages, declaratory relief, and injunctive relief. The case proceeds to court. The judge finds that Jonah has been libelling Peter. The judge issues the following orders:

1. A declaratory judgement is hereby issued in favor of Plaintiff, pursuant to 28 USC §2201 and 2202, that Defendant is using his newspaper to libel Plaintiff in violation of (whatever the statute that governs libel is).
2. Pursuant to Fed.R.Civ.P. 65, Defendant is permanently enjoined from libelling Plaintiff.
3. Because Plaintiff seeks damages, Plaintiffs shall file with the
Court and serve on Defendant, his claim for damages and a verified
statement of any fees and/or costs to which he claims entitlement.
Defendant shall have the right to object to any such fees and costs to
the extent provided in the applicable statutes and court rules.


Example 2. Same as above, but Jonah sells the newspaper before the trial ends. Judge declares the declaratory and injunctive claims moot, but proceeds on the damages claim and finds that Jonah has libelled Peter. The judge issues the following orders:

1. Pursuant to Fed.R.Civ.P. Rule 12(b)(6), Plaintiffs claims for declarative and injuctive relief are moot.
2. Because Plaintiff seeks damages, Plaintiffs shall file with the
Court and serve on Defendant, his claim for damages and a verified
statement of any fees and/or costs to which he claims entitlement.
Defendant shall have the right to object to any such fees and costs to
the extent provided in the applicable statutes and court rules.


Example 3. Jonah appeals Example 1. During the appeal, Jonah sells the newspaper. Court declares the declaratory and injunctive claims moot, but proceeds on the damages claim and finds that Jonah has libelled Peter. The court issues the following orders:

For the foregoing reasons, we vacate the district court's judgment awarding Plaintiff declaratory and injunctive relief. We affirm the court's judgement awarding Plaintiff damages, costs, and fees.

AFFIRMED IN PART AND VACATED IN PART

Thursday, July 06, 2006 2:21:00 PM  
Anonymous W. Kevin Vicklund said...

BTW, language for the above court orders is unabashedly adopted from Judge Jones's Kitzmiller decision and the 4th Circuit Court's Mellen v. Bunting decision.

Thursday, July 06, 2006 2:25:00 PM  
Blogger Larry Fafarman said...

Pettifogger W. Kevin Vicklund said ( 7/06/2006 01:41:54 PM ) --

<<<<<>>>If declaratory relief does not require that anything be done, then what is there to "order"?<<

An order to issue a declaration of the existing rights and legal relationships of the parties.<<<<<

Yes, and examples of such "legal relationships" are a finding that the defendant libeled the plaintiff and a finding that the defendant violated the civil rights of the plaintiff.

<<<<<<>>>A dismissal of a case can be called an "order." An order can just be an instruction to the court clerk to enter a decision in the records.<<<

Aside from stating the obvious, do you have any actual point to make?<<<<<<

All I am saying is that the term "order" has nothing to do with the term "relief." If after making any kind of ruling -- whether such ruling includes relief or not -- a judge might just write, "it is so ordered," which could just be an instruction to the court clerk to enter the decision in the records.

>>>>>>A memorandum opinion is an opinion that is not precedential. Since no District Court opinion can be precedential, all District Court opinions are memorandum opinions.<<<<<

This is not the definition that I saw in a legal dictionary, which called it an outline or a summary. And that legal definition is consistent with the common usage of the term "memorandum," which usually means a short, informal communication. And since all district court opinions are non-precedential (I doubt that they are precedential even within the same district), the term "memorandum" as you defined its usage here is superfluous.

>>>>>Of course, he wouldn't know until after the trial whether he could rule solely on the religious motivation (and he didn't have a choice to avoid the endorsement test, in any case, unless he was a judicial activist).<<<<<<

He could have told the expert witnesses in the middle of the trial that their testimony was not needed.

>>>>>>And I also have a fetish that damages have the magical power to prevent a case from being declared moot. Even McConnell agrees with me on that: In explanation, the Court relied on the unexceptional proposition that "'by definition claims for past damages cannot be deemed moot.'" I guess McConnell has a fetish for compensatory damages, eh?<<<<<

You are quote mining again. You know that quote mining is a no-no.

>>>>>Nominal damages are a form of damages. You claim they aren't.

Declaratory relief is a form of relief. You claim that it's not.

etc., etc.<<<<<

Wrong. I never claimed any of those things.

You are just making up your own rules and definitions. You are using the kind of nitpicking petty detail that crooked judges & attorneys use to imtimidate lay people.

Ed Brayton has a big advantage over me -- he can spend most of his time writing new articles instead of answering stupid comments. So I guess I'm the dumb one.

Thursday, July 06, 2006 3:57:00 PM  
Anonymous Voice In The Wilderness said...

> You are just making up your own rules and definitions.<

No. He is going by the rules and definitions of law. It is you that are trying to change definitions to meet your misconceptions.

> You are using the kind of nitpicking petty detail that crooked judges & attorneys use to imtimidate lay people. <

It is not nitpicking petty detail to insist that people use the known definitions of terms and not try to redefine them to fit their misunderstandings.

> Ed Brayton has a big advantage over me -- he can spend most of his time writing new articles instead of answering stupid comments. <

You don't answer. You dodge questions.

> So I guess I'm the dumb one. <

Bingo! You finally made an accurate statement. Even a stopped clock is right twice a day.

Thursday, July 06, 2006 5:08:00 PM  
Blogger Larry Fafarman said...

Pettifogger W. Kevin Vicklund said ( 7/06/2006 12:45:40 PM ) --

<<<<>>>Like Judge McConnnell said, there is no Supreme Court precedent that says that nominal damages alone prevent mootness<

Correct. There is no single Supreme Court decision that squarely faces that issue. However, the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 9th, 10th, and 11th Circuit Courts have each concluded that the precedents from several different Supreme Court decisions serve to create that precedent when combined.<<<<<<<<

Sigh. First I had to go over this crap with Colin, and now I have to go over this stuff all over again with you.

Here again is what Judge McConnell said in Utah Animal Rights Coalition (2004) :

Outside of this Circuit[10th], the cases are mixed. The Sixth and Ninth Circuits, like ours, squarely hold that a claim for nominal damages is sufficient to render a case justiciable. Second Circuit panels appear to have taken inconsistent positions on the issue. Compare Hernandez v. European Auto Collision, Inc., 487 F.2d 378, 387 (2d Cir. 1973) (holding that a claim for nominal damages does not avoid mootness), with Davis v. Village Part II Realty Co., 578 F.2d 461, 463-64 (2d Cir. 1978) (holding that in a civil rights action, the availability of either nominal or substantial damages was sufficient to avoid mootness). The Seventh Circuit has suggested, but not held, that a claim for nominal damages is insufficient to avoid mootness. Other circuits have held that cases are not moot where there are claims for both nominal and compensatory or punitive damages.(emphasis added, several citations omitted)

Now out of that, I get that only the 2nd, 6th, 9th, and 10th circuits clearly hold that a nominal damages claim is alone sufficient to prevent mootness. If you think that there are a lot more of that, then there are just two possibilities: (1) there have been a hell of a lot precedents in the two years since Utah Animal Rights was decided, or (2) you are a hell of a lot better at quote mining than Judge McConnell was.

>>>>>>We've only found one judge that is on record as disagreeing with that interpretation.<<<<<<

Yes, and he wrote a veritable dissertation that disagrees with that interpretation. Furthermore, even Judge McConnell missed a very important point, and that point is that many of these supposedly nominal damages only cases also have some other unmooted claim, like a claim for declaratory relief for a civil rights violation.

Also, it has been argued that a claim for retrospective declaratory relief should be declared moot when other claims are absent because granting the relief would have no effect on the parties involved other than to give the plaintiff the satisfaction of vindication. I feel that this argument might be valid in the case of a declaratory judgment that the plaintiff's civil rights were violated. However, I feel that in the case of a declaratory judgment of libel, the effect of restoring the plaintiff's good name is of sufficient importance to justify the declaratory relief. It is apparent that one of the reasons for nominal damages is an attempt to give more practical effect to retrospective declaratory relief, but I think that reason is stupid because nominal damages have no practical effect other than a symbolic effect. As I said, I would never ask for nominal damages myself because I consider them to be frivolous.

And some of the definitions in law dictionaries are really stupid. For example, one definition of "declaratory judgment" is as follows: "A binding judgment issued by the court that defines the legal relationship between the parties and their rights with respect to the matter before the court. A declaratory judgment does not provide for enforcement of the judgment, however." What kind of stupid, asinine, cockamamie definition is that? How in the hell could a judgment of libel fit into that definition? The meaning of "legal relationship" would have to be stretched to include a finding that the defendant's and plaintiff's "legal relationship" to each other is one of libeler and libelee! And how in the hell would the parties' "rights with respect to the matter before the court" be affected if the plaintiff does not ask for damages? 'Why can't these stupid law people cut the malarkey and get to the point? Declaratory judgment should simply be defined as follows: "A judgment (or a decision, ruling, finding, determination, declaration, holding, or what have you) that a party has proven a legal claim, and which by itself does not require that anybody do anything." A declaratory judgment or relief is implicit in every other kind of judgment or relief.

Anyway, Kevin, your rules and definitions are strictly your own and carry no weight in any court anywhere. You are just a pettifogger who has been wasting my time arguing about trivia and distracting me from doing more important things like writing some new articles that I very much want to write. Did Ed Brayton send you here to harass me so that I would have less time to respond to his asinine posts?

Friday, July 07, 2006 3:50:00 AM  

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