The shafting of FTE in the Dover case -- Brayton and Elsberry are wrong again
Eight months after it was decided, the Kitzmiller v. Dover case continues to generate a lot of controversy. The controversy now is over a Discovery Institute article -- titled "A Textbook Case of Judicial Activism" -- that condemns Judge Jones' shabby treatment of the Foundation for Thought and Ethics (FTE), the publisher of the book Of Pandas and People. Ed Brayton's response to the article is here and Wesley Elsberry's response is here. There are two issues here: (1) Jones' denial of FTE's motion to intervene and (2) Jones' denial of FTE's motion to quash the plaintiffs' subpoena of the manuscript for FTE's new book, The Design of Life.
Regarding denial of the motion to intervene:
(1) In regard to the issue of timeliness of the motion to intervene, the following factors existed:
(2) Judge Jones wrongly stated that "purely economic" interests are not grounds for intervention. Rule 24(a)(2) of the Federal Rules of Civil Procedure says that a situation of "Intervention of Right" exists "when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties."(emphasis added) That sounds like an economic interest to me.
(3) As to whether FTE's interest was "adequately represented by existing parties," the opposition of the defendants' counsel -- the Thomas More Law Center -- to FTE's motion to intervene raises serious doubts about that. If TMLC was really serious about defending the book, then logically TMLC would have welcomed the help of the world's foremost authority on the book -- the FTE -- and the FTE's attorneys. In retrospect, the defendants' failure to appeal shows that FTE's interests were not adequately represented.
(4) FTE was depending on expert witness William Dembski to represent its interests and then he withdrew from the case.
(5) Jones cited several precedents where a motion to intervene was denied but did not specifically cite a denial of intervention where a product of the would-be intervenor was directly targeted by the plaintiffs as happened in the Dover case.
(6) It is ridiculous to argue that news reports and William Dembski (a contract employee of FTE) could have or should have kept FTE fully informed of the Dover case. In particular, there is no way that news reports or Dembski could have kept FTE informed of the plaintiffs' secret strategies.
(7) As the world's foremost authority on the book that had become central to the case, FTE was also a very strong candidate for "permissive intervention," FRCP Rule 24(b).
FTE's motion to intervene should have been granted on the basis of the following guidelines from precedents cited in the denial of the motion (pages 6-7):
Regarding denial of the motion to quash the subpoena:
Elsberry claimed that FTE and its contract employee, William Dembski, were obligated to give the draft manuscript of The Design of Life to the plaintiffs because Dembski had "cited" the manuscript in his expert witness report. However, to “cite” a source usually means to quote or paraphrase something contained in that source, but all Dembski did was just mention the existence of the manuscript. Apparently Dembski's only purpose in mentioning the manuscript was to help show his familiarity with the book’s previous edition, the 2nd edition of the book Of Pandas and People — he said, “Having worked so closely in revising, expanding, and updating the second edition of this book, I feel I know it better than anyone.” In the end, Judge Jones required FTE to give the manuscript to the plaintiffs but prohibited the plaintiffs from publicly disclosing the manuscript's contents.
In addition, Elsberry continued to kick a long-dead horse: a false charge that a new member of the Dover school board was guilty of a conflict of interest. That false charge was withdrawn immediately when the true facts were presented.
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It is fairly obvious why Ed Brayton and Wesley Elsberry kicked me off their blogs, Dispatches From the Culture Wars and Panda's Thumb (a multiblogger blog but I am informed that Wesley is the official owner) respectively -- they don't want to have a commenter around who is willing and able to completely refute them. Wesley has not kicked me off his personal blog -- Austringer -- yet, but I have only recently started to post comments there.
Regarding denial of the motion to intervene:
(1) In regard to the issue of timeliness of the motion to intervene, the following factors existed:
(a) The motion to intervene was filed a huge 3-4 months before the scheduled start of the courtroom testimony.
(b) Intervention would not have introduced significant new issues to the case -- the book Of Pandas and People had already become central to the case.
(c) Intervention would probably not have introduced new expert witnesses -- FTE just wanted to bring back an expert witness who had already been deposed, William Dembski.
(d) Before receiving the plaintiffs' subpoena, FTE had no reason to believe that the book would be a significant issue in the lawsuit. The lawsuit was supposed to be about ID and not about a particular book about ID. After receiving the subpoena, FTE acted with reasonable speed.
(2) Judge Jones wrongly stated that "purely economic" interests are not grounds for intervention. Rule 24(a)(2) of the Federal Rules of Civil Procedure says that a situation of "Intervention of Right" exists "when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties."(emphasis added) That sounds like an economic interest to me.
(3) As to whether FTE's interest was "adequately represented by existing parties," the opposition of the defendants' counsel -- the Thomas More Law Center -- to FTE's motion to intervene raises serious doubts about that. If TMLC was really serious about defending the book, then logically TMLC would have welcomed the help of the world's foremost authority on the book -- the FTE -- and the FTE's attorneys. In retrospect, the defendants' failure to appeal shows that FTE's interests were not adequately represented.
(4) FTE was depending on expert witness William Dembski to represent its interests and then he withdrew from the case.
(5) Jones cited several precedents where a motion to intervene was denied but did not specifically cite a denial of intervention where a product of the would-be intervenor was directly targeted by the plaintiffs as happened in the Dover case.
(6) It is ridiculous to argue that news reports and William Dembski (a contract employee of FTE) could have or should have kept FTE fully informed of the Dover case. In particular, there is no way that news reports or Dembski could have kept FTE informed of the plaintiffs' secret strategies.
(7) As the world's foremost authority on the book that had become central to the case, FTE was also a very strong candidate for "permissive intervention," FRCP Rule 24(b).
FTE's motion to intervene should have been granted on the basis of the following guidelines from precedents cited in the denial of the motion (pages 6-7):
"[W]here a party takes reasonable steps to protect its interests, its application should not fail on timeliness grounds." . . . . . . . .The Third Circuit has instructed that in determining whether a motion to intervene is timely, three factors . . should be considered: "(1) the stage of the proceedings; (2) the prejudice that delay may cause the parties; and (3) the reason for delay." (citations omitted)
Regarding denial of the motion to quash the subpoena:
Elsberry claimed that FTE and its contract employee, William Dembski, were obligated to give the draft manuscript of The Design of Life to the plaintiffs because Dembski had "cited" the manuscript in his expert witness report. However, to “cite” a source usually means to quote or paraphrase something contained in that source, but all Dembski did was just mention the existence of the manuscript. Apparently Dembski's only purpose in mentioning the manuscript was to help show his familiarity with the book’s previous edition, the 2nd edition of the book Of Pandas and People — he said, “Having worked so closely in revising, expanding, and updating the second edition of this book, I feel I know it better than anyone.” In the end, Judge Jones required FTE to give the manuscript to the plaintiffs but prohibited the plaintiffs from publicly disclosing the manuscript's contents.
In addition, Elsberry continued to kick a long-dead horse: a false charge that a new member of the Dover school board was guilty of a conflict of interest. That false charge was withdrawn immediately when the true facts were presented.
===============================================
It is fairly obvious why Ed Brayton and Wesley Elsberry kicked me off their blogs, Dispatches From the Culture Wars and Panda's Thumb (a multiblogger blog but I am informed that Wesley is the official owner) respectively -- they don't want to have a commenter around who is willing and able to completely refute them. Wesley has not kicked me off his personal blog -- Austringer -- yet, but I have only recently started to post comments there.
Labels: Ed Brayton (1 of 2)
posted by Larry Fafarman | 8/25/2006 06:58:00 PM
1 Comments:
Larry(?) is continuing to kick a long-dead horse: It is fairly obvious why Ed Brayton and Wesley Elsberry kicked him off their blogs, the reasons they stated. It is equally obvious why Judge Jones denied intervention, the reasons he stated.
Find a new drum to beat, Larry(?).
> They don'w want to have a commenter around who is willing and able to completely refute them. <
You can't even handle the debates on your own blog, how could you refute Brayton and Wesley? If you were allowed to return to their blogs all you would do is repeat failed arguments endlessly as you do on this blog.
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