Ding Elsberry wrong about FTE's attempt to intervene in Kitzmiller

A post on Wesley Ding Elsberry's blog "Austringer" says,

Over on the DIscovery Institute’s weblog, Casey Luskin writes:

In 2005, a federal judge banned Pandas outright from science classrooms in Dover, Pennsylvania — but only after denying FTE [Foundation for Thought and Ethics] the right to appear before the court to defend the book.

Hmmm. Why does that sound odd?

Maybe because the text “Of Pandas and People” (OPaP) is not explicitly mentioned in the order made by Judge John E. Jones III at the end of his decision . . . .so the blunt statement that OPaP is “banned from classrooms” appears to be an unsupported extrapolation.

Judge Jones banned the ID statement that mentioned OPaP, dunghill, so OPaP was banned too.

Can a science teacher or administrator teach credulously from OPaP in a classroom? That would appear to be against the sense of the order.

That is the opposite of what you just said, dunghill.
.

Maybe Luskin’s statement sounds odd because Jon Buell, President of FTE, did actually appear in the courtroom of Judge John E. Jones III, and there attempted to defend the book.

How dumb can Ding Elsberry get? Buell was not there primarily to make a defense of the book -- Buell was primarily seeking the opportunity to defend the book. Buell was trying to intervene in the case.

Who is to blame for FTE’s inability to take part in the trial portion of KvD? It isn’t Judge Jones.

It was Judge Jones' decision, dummox. And if it was a bad decision -- and I assert that it was -- then Judge Jones gets the "blame" for it.

At the time that FTE finally decided to file its motion to intervene, it was already late in May, 2005. Notably, this only happened about the time that the Thomas More Law Center and the Discovery Institute were apparently having some serious behind-the-scenes disagreements over the conduct of the case.

Dembski's withdrawal as an expert witness was probably a contributing cause of FTE's decision to seek intervention (since Dembski was very familiar with the book "Of Pandas and People"), but IMO the primary cause was the subpoena that FTE received from the plaintiffs. The subpoena was sweeping, demanding all of FTE's material connected to "Of Pandas and People." FTE was prompt in filing a motion to intervene after receiving the subpoena. Prior to receiving the subpoena, FTE had no reason to believe -- and no way of proving -- that the plaintiffs would try to make the FTE's book "Of Pandas and People" a central issue in the case.

FTE seemed to be far more willing to act on DI orders than the TMLC had proved to be, so having FTE obtain a co-defendant role in the case was likely a high priority for the DI.

What's this bullshit -- the Discovery Institute giving "orders" to the FTE and the Thomas More Law Center?

Ding Elsberry cited the following transcript of the court:

THE COURT: I’m not sure that that helps me. What I am interested in is, the suit was filed on December 14th. It’s quite clear now that your client understood that the suit was filed as early as January of ‘05. Discovery is closed in the suit. We’re moving inextricably towards a trial at some point in the late summer/fall — actually the fall as previously set by the Court. I am trying to understand why there was no motion to intervene prior to the filing of this motion to intervene.

MR. BOYLE: I think there was no movement to intervene because the press reports did not give the true nature of the suit or the nature of FTE’s involvement in the suit. And that this was not a matter that affected the FTE at all until they received a subpoena from this court.

THE COURT: But wasn’t Mr. Dembski involved from a point in time, it seems to me — and I don’t know the exact point in time — but at some point after January of ‘05 Mr. Dembski was clearly involved as, at least at that time, the defendant’s expert. Mr. Dembski works hand in glove, obviously, with Mr. Buell and with his not-for-profit.

Are you telling the Court that the only source of information that your client had was through press accounts?

MR. BOYLE: That’s what the testimony I believe indicates, Your Honor, that —

THE COURT: That strains credulity. I can’t believe that. In a matter that is — that is this important to your client, and certainly had some notoriety that transcended simply the community of Dover, and even Pennsylvania, and it was — and Mr. Buell just told me that he understood — if I understood his answer correctly, and I think I did — as early as January he understood that Of Pandas and People was something that was the subject, or a subject of the lawsuit. Now, I am having difficulty understanding what the trigger point was for the motion to intervene. It looks to me like the trigger point came after Mr. Dembski was dropped as an expert. And to me it looks like Mr. Dembski was dropped as an expert because he didn’t want to produce, or because his employer didn’t want to produce the manuscript of The Design of Life. And it was only after that that I saw the motion to intervene.

Elsberry then commented,

Dembski represented FTE, and was so proud of that fact that he crowed about how he was the FTE Academic Editor for “The Design of Life”, a brag that meant that he exposed FTE to production of the then-in-development manuscript of the book. However, Dembski apparently failed to keep Jon Buell abreast of how the case was structured or how it was progressing. Dembski could easily have told Buell that “Of Pandas and People” was of central importance to the case; Dembski himself spent significant effort in his expert report for the case defending it, and certainly Dembski would have had access to at least descriptions of the expert reports of his fellow DI CRSC defense experts, who did the same. But according to sworn testimony from Buell, Dembski stayed mum until the subpoena for TDoL was being drafted. With friends like that…

Contrary to what Judge Jones and Elsberry seem to believe, press reports and tips from employees or subcontractors (Dembski) do not constitute proper service of process. Service of the subpoena was the only proper service of process upon the FTE. When I sued the federal and state governments, I was not even allowed to serve process by certified mail with return receipts. Even the county sheriff refused to serve process on the federal government (I never got an explanation as to why) and I had to hire a private process server at considerable bother and expense. Anyway, as I said, the subpoena from the plaintiffs was FTE's first indication that the plaintiffs would try to make "Of Pandas and People" a central issue in the case, and FTE promptly filed a motion to intervene after receiving the subpoena -- this is evident in the court records concerning FTE's attempt to intervene.

Elsberry said,

FTE’s motion critically depended upon their interests not being adequately represented by the Thomas More Law Center. However, Judge Jones directly questioned Buell late in the day over exactly how he knew that TMLC would not adequately represent FTE’s interests (see pages 108 to 112 in the transcript). Buell had not the foggiest notion of what TMLC would or would not be doing, nor even of how many lawyers TMLC had put on the case. This issue is one prong of a legal test for allowing intervention, and in his decision, Judge Jones lays out clearly how Buell failed to deliver

That is precisely a very good reason for allowing intervention: "Buell had not the foggiest notion of what TMLC would or would not be doing"!

Also, whether a intervention applicant's interests are "adequately represented" by a party already in the case is "one prong of a legal test" only for Rule 24(a) ("Intervention of Right") of the Federal Rules of Civil Procedure -- it is not a legal test for FRCP Rule 24 (b) ("Permissive Intervention").

Also, allowing FTE to intervene would not have significantly delayed the trial, because:

(1) The FTE would not have introduced any major new issues -- the plaintiffs already intended to try to make the book a major issue in the case.

(2) Apparently the FTE was not planning to bring in any new expert witnesses but just wanted to bring back expert witnesses who had withdrawn.

(3) The start of the trial was still about 3 months away.

Another reason that Jones gave for denying intervention, that FTE's interests were "purely economic," is obviously ridiculous (page 12 of denial of FTE's motion to intervene).

IMO FTE should have filed an interlocutory appeal of the denial of the motion to intervene.

A modified introduction of the article on Austringer was posted by Elsberry on Panda's Thumb.

Neither I nor anyone else can post the above rebuttals on Austringer or Panda's Thumb because Ding Elsberry does not tolerate criticism. In contrast, anyone can come here and post criticisms. Yet the dunghills on Wickedpedia allowed citation of his blog while censoring citation of my blog because his blog is "notable" while my blog is "crappy."
.