Judge Jones should have been disqualified because of bias
THE COURT: But I am distressed by the fact that there is an expert report attached to the amicus brief. You know, if I open the gate and I tell him I want an expert report, that’s one thing. So I guess, you know, before we all start a plethora of filings, I’m telling you that to give it some thought, we can talk about it tomorrow, I could accept some argument on it if everybody wants to argue, and I can haul in counsel for the Discovery Institute.
They have local counsel, in fact I think it’s Mr. Boyle’s firm who’s local counsel, and we can go through that, have Mr. Boyle have another unhappy day in this court and have his head handed to him, or I can just summarily strike it. I’m not going to take an expert report. (emphasis added)
Jones should have been disqualified because of the bias shown by such abusive language about an attorney: " . . . have Mr. Boyle have another unhappy day in this court and have his head handed to him."
The expert report in question was written by Stephen Meyer, who had withdrawn as an expert witness in the case. In a later ruling, Jones rejected the DI amicus brief on the grounds that it was a "back door" way to insert the ideas of Stephen Meyer -- and the ideas of another expert witness who withdrew, William Dembski -- into the record without cross-examination by the plaintiffs. That was a weak argument, for the following reasons: (1) courtroom testimony is far more important than an amicus brief, hence there was no advantage to using this "back door" method, and (2) the plaintiffs were allowed to file a brief that answered a revised version of the DI amicus brief (and that of course could have answered the original DI amicus brief).
Also, the ruling rejecting the initial DI brief said,
As Plaintiffs submit in their Motion, the rules of this Court do not specifically outline procedures for filing amicus briefs and applicable case law indicates that the district courts have inherent authority to allow amici to participate in proceedings under appropriate circumstances . . . . We recognize, however, as pointed out by Plaintiffs in their submission, that Rule 29 of the Federal Rules of Appellate Procedure and Supreme Court Rule 37 both require either the parties' consent or leave of Court to file an amicus brief. Despite the fact that amici failed to formally request leave of Court before filing the submissions, we will review them absent the request of formal leave as we do not find it necessary to elevate form over substance. (emphasis added, citations omitted)
However, FRAP Rule 29(b) says,
(b) Motion for Leave to File: The motion must be accompanied by the proposed brief . . . . (emphasis added)
Supreme Court Rule 37-2(b) also says that the proposed amicus brief must accompany a motion for leave to file.
Hence, Judge Jones was wrong in saying that the Discovery Institute erred by not requesting leave of the court before submitting the amicus brief.
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