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Labels: Kitzmiller v. Dover (new #1)
posted by Larry Fafarman | 7/14/2008 09:22:00 AM
58 Comments:
"It's a bird! It's a plane! It's... Supertroll!"
This sort of desperate hyperbole isn't likely to convince anyone that you're winning, Larry.
By the way, from O'Connor vs. Washburn University:
"In Lemon, the Supreme Court set forth a three-part test for determining whether a government action violates the Establishment Clause. Lemon, 403 U.S. at 612-13. Under this test, "government action does not violate the Establishment Clause so long as it (1) has a secular purpose, (2) does not have the principal or primary effect of advancing or inhibiting religion, and (3) does not foster an excessive entanglement." Bauchman, 132 F.3d at 551. Justice O'Connor offered a refined version of the Lemon test in her concurring opinion to Lynch v. Donnelly. 465 U.S. at 687-94 (O'Connor, J., concurring). Under Justice O'Connor's modified "endorsement test," "the government impermissibly endorses religion if its conduct has either (1) the purpose or (2) the effect of conveying a message that religion or a particular religious belief is favored or preferred." Bauchman, 132 F.3d at 551 (quotation omitted). In examining challenges to government action under the Establishment Clause, this circuit has interpreted the purpose and effect prongs of Lemon in light of Justice O'Connor's endorsement test. Id. at 552. A government action is examined under this standard regardless of whether it is alleged to endorse or disparage religion. Roberts v. Madigan, 921 F.2d 1047, 1053-54 (10th Cir. 1990). Appellants claim Washburn's placement of Holier Than Thou on campus had both the purpose and effect of conveying government disapproval of the Roman Catholic religion."
(bolded emphasis added.)
"This sort of desperate hyperbole isn't likely to convince anyone that you're winning, Larry."
Agreed, it tends to cause people to think instead that you're whining.
Also, calling people who use logic instead of succumbing to your wacky argument tactics "trolls" is disingenuous at best.
Should we start taking bets on how long it is before Larry gets kicked off another scienceblog blog? Tara (is that right) is very patient so far -- I'd say another three days. Two or fewer if one of us decides to criticize Larry there.
I think Larry's just invented "Trollboy III: The Computer Blogging Game".
Larry quote-mined the ruling in Alpha Iota Omega Christian Fraternity v. Hamm. He cites it in support of his claim that cases seeking nominal damage can be mooted; I'm sure it will surprise no-one that this is a gross misrepresentation of the case.
According to the ruling, plaintiffs objected to mootness on two grounds: the school might revert to the old policy, and they sought to amend their complaint to request damages. From footnote 19 on page 21:
"Plaintiffs made no claim for monetary damages for any
alleged past injury. Although Plaintiffs sought recovery of
their costs, expenses, and attorneys’ fees under 42 U.S.C.
§ 1988(b), that claim fails for the reasons set forth in Part
III, infra. Even if Plaintiffs had a valid claim for attorneys’
fees, it would be insufficient to create an Article III case or
controversy and dismissal would still be appropriate. Lewis, 494
U.S. at 480 (“Where on the face of the record it appears that the
only concrete interest in the controversy has terminated,
reasonable caution is needed to be sure that mooted litigation is
not pressed forward, and unnecessary judicial pronouncements on
even constitutional issues obtained, solely in order to obtain
reimbursement of sunk costs.”); Diamond v. Charles, 476 U.S. 54,
70-71 (1986) (appellate court lacked jurisdiction and suit
challenging constitutionality of state statute must be dismissed
when only remaining issue concerned attorney’s fees because the“fee award is wholly unrelated to the subject matter of the
litigation, and bears no relation to the statute whose
constitutionality is at issue here. It is true that, were the
Court to resolve the case on the merits against appellees,
appellees would no longer be ‘prevailing parties’ entitled to an
award of fees under 42 U.S.C. § 1988. But the mere fact that
continued adjudication would provide a remedy for an injury that
is only a byproduct of the suit itself does not mean that the
injury is cognizable under Art. III.”).
and from page 23:
In an effort to avoid mootness, Plaintiffs request leave to
amend the complaint pursuant to Rule 15(a), Fed. R. Civ. P.
Plaintiffs’ position is that they should be allowed to amend
their complaint, almost as a matter of course, and thereby
20
avoid mootness by raising new issues and damages claims.
(bolded emphasis added)
As long as I'm here, I also find it highly amusing that Larry cites a dissenting opinion from O'Connor vs. Washburn University while ignoring clear language in the decision of the court that contradicts his claim:
"The complaint, however, also includes a claim for nominal damages. An award of nominal damages is an appropriate remedy for a violation of the Establishment Clause. See Searles v. Van Bebber, 251 F.3d 869, 878-79 (10th Cir. 2001). Unlike the claims for injunctive and declaratory relief, this claim is not mooted by the removal of the statue from campus. Utah Animal Rights Coalition, 371 F.3d at 1257-58. This court therefore has jurisdiction to consider the nominal damages claim."
(bolded emphasis added)
Martian bully,
Why are you responding here instead of on the Aetiology blog thread where the issue was being debated?
>>>>>> Larry quote-mined the ruling in Alpha Iota Omega Christian Fraternity v. Hamm. He cites it in support of his claim that cases seeking nominal damage can be mooted; I'm sure it will surprise no-one that this is a gross misrepresentation of the case. <<<<<<
Wrong. I did not quote-mine anything -- the judge never said that it made any difference to him whether the request for nominal damages was in the original complaint or an amended complaint. Here is what he said:
"...... the court in its discretion will not allow the continuation of a lawsuit merely to allow Plaintiffs to seek nominal damages, which, even if proven, would be limited to one dollar."
Also, you missed this dissenting opinion of Judge McConnell in O'Connor v. Washburn University, 416 F.3d 1216 (10th Cir. 2005):
"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 (citations omitted). 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."
"Nominal damage awards serve essentially the same function as declaratory judgments; indeed, scholars tell us that nominal damages were originally sought as a means of obtaining declaratory relief before passage of declaratory judgment statutes.......For justiciability purposes, I see no reason to treat nominal and declaratory relief differently."
"Indeed, if appending a claim for nominal damages were sufficient to create standing or to avoid mootness, litigants could manufacture Article III jurisdiction by the mere expedient of pleading. It is hard to conceive of a case in which a plaintiff would be unable to append a claim for nominal damages, and thus insulate the case from the possibility of mootness. Article III justiciability should not be so manipulable."
"Outside of this Circuit, 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." (some citations omitted)
"I therefore conclude that although the issue is resolved in this Circuit, it has not been resolved by the Supreme Court or by the weight of authority nationwide."
"....the prospect of attorneys fees does not affect whether the underlying claim is justiciable. As the Supreme Court has stated, the "interest in attorney's fees is, of course, insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim."
>>>>>> As long as I'm here, I also find it highly amusing that Larry cites a dissenting opinion from O'Connor vs. Washburn University while ignoring clear language in the decision of the court that contradicts his claim: <<<<<<
And I find it highly amusing that you think I ignored something -- it is clear from the dissenting opinion that Judge McConnell disagreed with the decision to continue the case on the basis of the nominal damages claim alone. And I also blew some big holes in the totally erroneous idea that this practice of continuing a case just on the basis of a nominal damages claim is universally accepted in the courts.
I strongly suspect that the decision to continue the O'Connor v. Washburn University case on the basis of the nominal damages claim alone was a political decision because this was a high profile case.
Often the courts pretend that only a claim for nominal damages remains when there is also a hidden remaining claim for declaratory relief. In the O'Connor case, the court dismissed the claims for injunctive and declaratory relief but then ruled on the declaratory relief claim as though that claim had not been dismissed.
Nominal damages are just a symbolic token of vindication when the plaintiff wins on some other claim.
Larry wrote: "Wrong. I did not quote-mine anything -- the judge never said that it made any difference to him whether the request for nominal damages was in the original complaint or an amended complaint."
It's not a difficult concept, Larry. There was no request for nominal damages in the original complaint. When the plaintiffs tried to amend their complaint to add one in order to keep the case from being mooted, the judge told them he wouldn't allow them to add a request for nominal damages just to keep the case going. There was no request for nominal damages to moot. If you read section II ("Motion for Leave to File Amended Complaint Will Be Denied,") it is quite clear on this point.
Larry wrote: And I find it highly amusing that you think I ignored something....
So? It's a dissenting opinion, not precedent. I have yet to see you cite a case in which an existing claim for nominal damages was mooted.
"Why are you responding here instead of on the Aetiology blog thread where the issue was being debated?"
Courtesy toward the innocent Aetiology blog owner and readers, probably. What a concept!
Martian buddy said,
>>>>>> It's not a difficult concept, Larry. <<<<<<
It's difficult for you but not for me and other sane people.
>>>>>> There was no request for nominal damages in the original complaint. <<<<<
Yes, I know that.
>>>>>>> When the plaintiffs tried to amend their complaint to add one in order to keep the case from being mooted, the judge told them he wouldn't allow them to add a request for nominal damages just to keep the case going. There was no request for nominal damages to moot. <<<<<<
The reason why he would not allow them to add a request for nominal damages was that he was not going to consider the request anyway. Duh.
Let's go over this again -- he did not say that it made any difference to him whether the request for nominal damages was in the original complaint or an amended complaint. If the distinction were important, he would have said something about it in case there would be an appeal. For the umpteenth time, here is what he said --
"...... the court in its discretion will not allow the continuation of a lawsuit merely to allow Plaintiffs to seek nominal damages, which, even if proven, would be limited to one dollar."
>>>>>> So? It's a dissenting opinion, not precedent. <<<<<<
What do you think dissenting opinions are for? They are to show that a court does not have a consensus on a particular issue. The dissent can someday become the law. There was only one dissenting opinion in Plessy v. Ferguson in 1896. In 1954, in Brown v. Board of Education, the Supreme Court unanimously reversed Plessy.
>>>>>>> I have yet to see you cite a case in which an existing claim for nominal damages was mooted. <<<<<<<
And I have yet to see anyone cite a case where only nominal damages and nothing else was awarded.
Your term "existing" claim is a nitpicking distinction -- as I said, the request to add the nominal damages claim was rejected because the judge was going to reject the claim anyway. Duh.
Venusian Buddy said...
>>>>>"Why are you responding here instead of on the Aetiology blog thread where the issue was being debated?"
Courtesy toward the innocent Aetiology blog owner and readers, probably. <<<<<<
What? How is it a courtesy to respond on another blog rather than the blog where the discussion is? I never saw that before.
Larry wrote, "What? How is it a courtesy to respond on another blog rather than the blog where the discussion is?"
It is a courtesy to the readers of the other blog since they don't have to read your gibberish (and I'm putting that politely). I'm almost sorry I bothered to respond to your idiot Dover rant over there.
Larry wrote:
The reason why he would not allow them to add a request for nominal damages was that he was not going to consider the request anyway. Duh.
And here's the judge's reasoning why:
"In order to recover nominal damages, Plaintiffs would
have to prevail on the merits of their case. Farrar v. Hobby,
506 U.S. 103, 112 (1992) (nominal damages are appropriate when
civil rights plaintiff establishes violation of his due process
rights, but is unable to prove actual injury); Brister v.
Faulkner, 214 F.3d 675, 685-86 (5 Cir. 2000) (civil rights
plaintiffs not entitled to nominal damages where court found that
their constitutional rights had not been violated). Here,
Plaintiffs have not proven a constitutional violation and the
case is dismissed as moot, so that possibility is foreclosed."
The judge is telling them that they can't go back and stick in a request for nominal damages after the case has already been mooted for inability to prove a constitutional violation.
Larry wrote: What do you think dissenting opinions are for? They are to show that a court does not have a consensus on a particular issue. The dissent can someday become the law.
We're talking about the law as it actually applied when Kitzmiller was decided, not the law as it might apply at some unspecified point in the future in Larry's Land of Make-Believe.
Larry wrote: And I have yet to see anyone cite a case where only nominal damages and nothing else was awarded.
Non sequitir. Can you cite a case where an existing claim for nominal damages was mooted?
In the words of your banner - "Show me."
>>>>>> Larry wrote:
The reason why he would not allow them to add a request for nominal damages was that he was not going to consider the request anyway. Duh.
And here's the judge's reasoning why: <<<<<
Martian buddy, you just don't know when to stop kicking a dead horse. As I said, nowhere did the judge expressly say that it made any difference to him whether the claim for nominal damages was in the original complaint or the amended complaint. If the distinction was important, he would have expressly said something about it.
>>>>>> Farrar v. Hobby, 506 U.S. 103, 112 (1992) (nominal damages are appropriate when civil rights plaintiff establishes violation of his due process rights, but is unable to prove actual injury) <<<<<<
Establishing violation of his due process rights is proving a claim for declaratory relief (and even if there was no actual injury, he might still be entitled to some compensation). I am talking about a situation where all claims -- for injunctive relief, declaratory relief, compensatory relief, etc. -- except the nominal damages claim have been dismissed, and only the nominal damages claim remains.
>>>>>> We're talking about the law as it actually applied when Kitzmiller was decided, not the law as it might apply at some unspecified point in the future <<<<<<
Well, I wasn't talking about Kitzmiller. Anyway, there was almost no judicial precedent to apply in Kitzmiller -- there was no precedent at all for intelligent design and only one fairly settled precedent for evolution disclaimers, Freiler v. Tangipahoa Parish, an appeals court decision in another circuit. Selman v. Cobb County, another evolution disclaimer case, was just a district court decision at the time.
Also, you mistakenly assume that two different judges who are given the same set of facts with arguments from different lawyers are going to reach the same decisions. Contrary to what Judge Jones said, the work of judges is not "workmanlike."
>>>>>And I have yet to see anyone cite a case where only nominal damages and nothing else was awarded.
Non sequitir. <<<<<<<
Not a non sequitur. If there are a lot of cases that are continiued where all claims have been dismissed except a claim for nominal damages, then there is likely to be a case where only nominal damages were awarded.
>>>>>> Can you cite a case where an existing claim for nominal damages was mooted? <<<<<<
I just did -- Alpha Iota Omega Christian Fraternity v. Hamm. The nominal damages claim "existed' in the amended complaint. The judge could have gone through the motions of officially accepting the amended complaint and then dismissing the nominal damages claim immediately, and the end result would have been exactly the same.
And I am repeating again just so you won't forget -- if it mattered whether the nominal damages claim was in the original complaint or the amended complaint, the judge would have said something specific about that.
>>>>>> In the words of your banner - "Show me." <<<<<<<
I just showed you -- several times over.
Now if you'll excuse me, I have much better things to do than answer the comments of a nitpicking, pettifogging troll.
Larry wrote: "As I said, nowhere did the judge expressly say that it made any difference to him whether the claim for nominal damages was in the original complaint or the amended complaint. If the distinction was important, he would have expressly said something about it."
He did. From the top of page 20:
"The court must consider the claims that were asserted (not what might have been asserted) when deciding whether a live case or controversy exists."
(bolded emphasis added.)
Larry wrote: "I am talking about a situation where all claims -- for injunctive relief, declaratory relief, compensatory relief, etc. -- except the nominal damages claim have been dismissed, and only the nominal damages claim remains."
Beyah v. Coughlin:
"Nor are we impressed by defendants' suggestion, relying on pre-1978 authorities, that Beyah's claims are moot because he would not be able to establish actual damages. Even if defendants' factual premise were accurate, Beyah's claim for damages would not be moot since it is now well established that if he can prove that he was deprived of a constitutionally protected right, and if defendants are not able to establish a defense to that claim, Beyah will be entitled to recover at least nominal damages. See Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978)."
Larry wrote: "I just did -- Alpha Iota Omega Christian Fraternity v. Hamm. The nominal damages claim "existed' in the amended complaint."
The judge disagreed; see above.
Larry wrote: "As I said, nowhere did the judge expressly say that it made any difference to him whether the claim for nominal damages was in the original complaint or the amended complaint. If the distinction was important, he would have expressly said something about it."
Larry, this is lame even by your standards. Didn't Kevin explain this in exquisite detail a long time ago?
P.S. Speaking of "kicking dead horses" ...
Martian:
>>>>>>> (quoting court opinion)"The court must consider the claims that were asserted (not what might have been asserted) when deciding whether a live case or controversy exists." <<<<<<
And the claim for nominal damages was "asserted" -- it was asserted in the amended complaint. Sheeeesh.
>>>>>>(quoting court opinion)" Beyah's claim for damages would not be moot since it is now well established that if he can prove that he was deprived of a constitutionally protected right, and if defendants are not able to establish a defense to that claim,"<<<<<<
The claim that he was "deprived of a consitutionally protected right" is a claim for declaratory relief. I am talking about a situation where all claims other than the nominal damage claim -- including claims for declaratory relief -- have been dismissed. The idea that these court decisions are continued solely on the basis of a nominal damages claim is fallacious because there are underlying claims for declaratory relief. In O'Connor v. Washburn University, the court falsely believed that it had dismissed the claim for declaratory relief, then proceeded to rule on it.
Another example of a case that has been false claimed to have been continued solely on the basis of a nominal damages claim is Farrar v. Hobby, 506 U.S. 103 (1992). In Farrar, there was declaratory relief -- a finding that the defendants had violated the plaintiffs' civil rights -- in addition to a nominal damages award.
For example, in a libel suit with a claim for nominal damages, the libel claim is a claim for declaratory relief. If the libel claim is dismissed, then the nominal damages claim is automatically dismissed.
The whole idea of continuing a case solely on the basis of a nominal damages claim is absurd on its face. It's a waste of judicial resources. Such waste is a particular problem because the courts make time for high-profile cases by giving short shrift or no shrift to low-profile cases.
Venusian Buddy driveled,
>>>>>> Larry wrote: "As I said, nowhere did the judge expressly say that it made any difference to him whether the claim for nominal damages was in the original complaint or the amended complaint. If the distinction was important, he would have expressly said something about it."
Larry, this is lame even by your standards. <<<<<<
Your comment should have been censored because it violated one of my new rules: just saying that someone is wrong without saying why. That kind of comment just clutters up the blog with rubbish.
It is not lame, idiot. You trolls keep insisting that the distinction is crucial, but the judge said nothing about it. He didn't say, "the problem here is that the claim for nominal damages was in the amended complaint rather than the original complaint. Had it been in the original complaint, I would not have dismissed it."
As I said, the judge could have gone through the motions of accepting the amended complaint and then dismissed the nominal damages claim immediately, and the end result would have been the same.
>>>>>> Didn't Kevin explain this in exquisite detail a long time ago? <<<<<<
The problem with you Darwinist slimebags is that you think that you win arguments just by "explaining" things. As for Kevin Vicklund, he is a nitpicking, pettifogging jerk and a cyberbully who tries to get me kicked off of other blogs.
Also, in the law, excessive detail is not "exquisite" -- it only decreases the probability that a judge would follow the same line of reasoning.
Larry wrote: And the claim for nominal damages was "asserted" -- it was asserted in the amended complaint.
It's crystal-clear from the ruling that the judge didn't agree with you on this. From page 23:
"In an effort to avoid mootness, Plaintiffs request leave to
amend the complaint pursuant to Rule 15(a), Fed. R. Civ. P.
Plaintiffs’ position is that they should be allowed to amend
their complaint, almost as a matter of course, and thereby
avoid mootness by raising new issues and damages claims."
(bolded emphasis added.)
Larry wrote: I am talking about a situation where all claims other than the nominal damage claim -- including claims for declaratory relief -- have been dismissed.
You're moving the goalposts here, Larry. This was your comment that prompted this inane line of argument:
"And I have yet to see anyone cite a case where only nominal damages and nothing else was awarded."
Now you're trying to tell me that you really meant "nothing except a nominal damage claim," which is incoherent. It's trivially obvious that there has to be "a live case or controversy" to have a claim for nominal damages.
>>>>> It's crystal-clear from the ruling that the judge didn't agree with you on this <<<<<<
It's as crystal-clear as a pile of shit.
>>>>>(quoting court opinion) "Plaintiffs’ position is that they should be allowed to amend their complaint, almost as a matter of course, and thereby avoid mootness by raising new issues and damages claims." <<<<<<
Sigh. But he never said that he would not have immediately dismissed the nominal damages claim if it had been in the original complaint instead of the amended complaint. For the zillionth time, he said,
"...... the court in its discretion will not allow the continuation of a lawsuit merely to allow Plaintiffs to seek nominal damages, which, even if proven, would be limited to one dollar."
There is nothing in that statement that could possibly depend on whether the nominal damages claim was in the original complaint or the amended complaint.
>>>>>>I am talking about a situation where all claims other than the nominal damage claim -- including claims for declaratory relief -- have been dismissed.
You're moving the goalposts here, Larry. <<<<<<<
I am not moving the goalposts -- that has been one of my premises from the beginning.
Larry wrote: There is nothing in that statement that could possibly depend on whether the nominal damages claim was in the original complaint or the amended complaint.
"Plaintiffs’ motion for
leave to file the proposed amended complaint is futile because
even if it were allowed, the case would still be moot and because
it is based on an outdated, and therefore false, state of
affairs."
Larry wrote: I am not moving the goalposts -- that has been one of my premises from the beginning.
I already see how this is going to go. For any case I cite, you'll just read a "hidden claim" into it and say it doesn't count. I'm not going to play that game with you.
>>>>>> Larry wrote: There is nothing in that statement that could possibly depend on whether the nominal damages claim was in the original complaint or the amended complaint.
"Plaintiffs’ motion for leave to file the proposed amended complaint is futile because even if it were allowed, the case would still be moot and because it is based on an outdated, and therefore false, state of affairs." <<<<<<<
For the zillionth time, he did not say, imply, or even suggest that he might have continued the case on the basis of the nominal damages claim alone if the claim had been in the original complaint instead of the amended complaint.
It is not possible to continue a case on the basis of a nominal damages claim alone, because nominal damages are just symbolic tokens of vindication that are awarded when the plaintiffs are successful on other claims.
>>>>>> For any case I cite, you'll just read a "hidden claim" into it and say it doesn't count. <<<<<<
There is no "hidden claim" here -- that was a fundamental claim from the beginning.
You are just a troll.
Larry wrote: It is not possible to continue a case on the basis of a nominal damages claim alone, because nominal damages are just symbolic tokens of vindication that are awarded when the plaintiffs are successful on other claims.
You're conflating a claim for nominal damages with the actual award.
Larry wrote: There is no "hidden claim" here -- that was a fundamental claim from the beginning.
I was referring to your bizarre assertion that there were "hidden claims" in Beyah vs. Coughlin and Farrar v. Hobby. What you're calling a "hidden claim" is the claim for nominal damages.
>>>>>> You're conflating a claim for nominal damages with the actual award. <<<<<<
You have to make a claim for the award before you can get the award. And the court must consider your claim before giving you the award. If the court dismisses your claim, you can't get the award.
>>>>>> I was referring to your bizarre assertion that there were "hidden claims" in Beyah vs. Coughlin and Farrar v. Hobby. What you're calling a "hidden claim" is the claim for nominal damages. <<<<<<
Wrong -- what I called the "hidden claim" was a claim for declaratory relief.
Larry wrote: "Wrong -- what I called the "hidden claim" was a claim for declaratory relief."
From Utah Animal Rights Coalition vs. Salt Lake City Corp.:
"“It may seem odd that a complaint for nominal damages could satisfy Article III’s case or controversy requirements, when a functionally identical claim for declaratory relief will not. But this Court as squarely so held.”"
Again, Larry, those are nominal damages claims. There's no "hidden declaratory relief claim" present. The dissenting opinion in O'Connor v. Washburn University that you've been citing ad nauseum even makes the point that they are very similar claims, but they are not treated the same when it comes to mootness.
>>>>>>From Utah Animal Rights Coalition vs. Salt Lake City Corp.:
"“It may seem odd that a complaint for nominal damages could satisfy Article III’s case or controversy requirements, when a functionally identical claim for declaratory relief will not. But this Court as squarely so held.”" <<<<<<
It looks to me like they were saying that that decision was wrong. Judge McConnell was more to the point in his dissent in O'Connor v. Washburn University, 416 F.3d 1216 (10th Cir. 2005):
"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 (citations omitted). 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."
You have the mistaken idea that every court would reach the same decision when given the same set of facts. Judge "Jackass" Jones, who described the work of judges as "workmanlike," wants people to believe that.
>>>>>> The dissenting opinion in O'Connor v. Washburn University that you've been citing ad nauseum even makes the point that they are very similar claims, but they are not treated the same when it comes to mootness. <<<<<<
And you keep citing the O'Connor v. Washburn University's majority opinion ad nauseum.
And the dissenting opinion also says that the two kinds of claims should be treated the same when it comes to mootness --
"Nominal damage awards serve essentially the same function as declaratory judgments; indeed, scholars tell us that nominal damages were originally sought as a means of obtaining declaratory relief before passage of declaratory judgment statutes.......For justiciability purposes, I see no reason to treat nominal and declaratory relief differently."
Larry wrote: And you keep citing the O'Connor v. Washburn University's majority opinion ad nauseum.
Ummm, yeah... I keep citing the actual decision of the court, not a dissent that doesn't establish binding precedent. That's the point.
And to forestall the Pavlovian response of "...but it might be adopted some day!" I have two words to say: stare decisis.
https://www.blogger.com/comment.g?blogID=26084648&postID=2750712254892111278
Larry, you might want to pay attention to where you're posting.
martian buddy, I've reproduced Larry's post in an unrelated thread (above) below. (I'd try to refute it, but you're way better at law than me!)
Larry said:
>>>>> Ummm, yeah... I keep citing the actual decision of the court, not a dissent that doesn't establish binding precedent. <<<<<<
A dissenting opinion is part of the decision of the court. It is always published along with the majority opinion if the majority opinion is published.
>>>>>> And to forestall the Pavlovian response of "...but it might be adopted some day!" I have two words to say: stare decisis. <<<<<<
Stare decisis does not apply at all in en banc (full court) appeals court review and Supreme Court review. And sometimes a court will reverse its own precedents. And sometimes judges who are following precedent will find some reason why precedent does not apply. And this is just one federal circuit -- Judge McConnell said that precedents in other federal circuits are "mixed."
Anyway, I have shown that this absurd idea that a nominal damages claim always prevents mootness is by no means universally accepted in the courts. Also, I have shown that this idea is based upon the fallacy that all other claims have been dismissed -- there is always a remaining claim for declaratory relief, even if the court falsely believes that this claim has been dismissed. Without a grant of declaratory relief, nominal damages could not be awarded.
>>>>>> I'd try to refute it, but you're way better at law than me! <<<<<<<
You'd "try to refute it"? Just another one of your blustering bluffs.
My statements in that comment are irrefutable statements of fact, so how could you -- or even Martian Buddy -- try to refute them?
Larry wrote: A dissenting opinion is part of the decision of the court. It is always published along with the majority opinion if the majority opinion is published.
But it doesn't create precedent, which is the point you're desperately avoiding.
Larry wrote:
Stare decisis does not apply at all in en banc (full court) appeals court review and Supreme Court review.
Nonsense. It's a guiding principle at all levels, including the Supreme Court. It's uncommon for them for reverse themselves, and you know it.
Larry wrote Anyway, I have shown that this absurd idea that a nominal damages claim always prevents mootness is by no means universally accepted in the courts.
All you've shown is that you can quote-mine one ruling and cite a dissent that says what you want to hear.
Larry wrote: Also, I have shown that this idea is based upon the fallacy that all other claims have been dismissed -- there is always a remaining claim for declaratory relief, even if the court falsely believes that this claim has been dismissed.
All you've shown is that you don't recognize a claim for nominal damages when it's gnawing on your ankle.
>>>>> But it doesn't create precedent, which is the point you're desperately avoiding. <<<<<<
I am not "desperately avoiding" anything. But precedent is not everything.
>>>>>Larry wrote:
Stare decisis does not apply at all in en banc (full court) appeals court review and Supreme Court review.
Nonsense. It's a guiding principle at all levels, including the Supreme Court. <<<<<<
I was talking about Supreme Court review of lower-court precedents.
>>>>> It's uncommon for them for reverse themselves, and you know it. <<<<<
it may be uncommon for the Supreme Court to reverse itself, but it does reverse itself. And often the SC just clarifies SC precedents without completely reversing them.
>>>>>>Larry wrote Anyway, I have shown that this absurd idea that a nominal damages claim always prevents mootness is by no means universally accepted in the courts.
All you've shown is that you can quote-mine one ruling and cite a dissent that says what you want to hear. <<<<<<
A quote mine misrepresents a source -- I did not misrepresent the opinion. You did. And I cited a dissent that says what you don't want to hear.
Larry wrote: I was talking about Supreme Court review of lower-court precedents.
We're arguing a dissenting opinion in a Supreme Court ruling, remember?
Larry wrote: A quote mine misrepresents a source -- I did not misrepresent the opinion.
You're still misrepresenting it. There was no live claim for nominal damages.
>>>>>> We're arguing a dissenting opinion in a Supreme Court ruling, remember? <<<<<
WHAT? It's a dissenting opinion in a 10th circuit appeals court case -- O'Connor v. Washburn Univ..
>>>>>> You're still misrepresenting it. There was no live claim for nominal damages. <<<<<<
What in the hell are you talking about? The court majority ruled that there was a live claim for nominal damages.
You are just a troll.
Larry wrote: What in the hell are you talking about?
The Alpha Iota Omega Christian Fraternity v. Hamm you keep flogging as if it supports your claim. The case was already mooted. The judge denied the amendment on the grounds that the constitutional issues had already been resolved (and thus there was no live controversy to seek nominal damages for.) This is totally different from what you're trying to claim could have happened in Kitzmiller.
Again, if you think otherwise, show me a case where there was live claim for nominal damages in either the original complaint or in an amended complaint that was filed in a timely manner.
Supertroll Martian bully driveled,
>>>>>>The judge denied the amendment on the grounds that the constitutional issues had already been resolved <<<<<<
Wrong -- the constitutional issues had not been resolved -- they had been dismissed.
>>>>>> This is totally different from what you're trying to claim could have happened in Kitzmiller. <<<<<<
Wrong -- I am talking about a hypothetical situation in the Kitzmiller case where all of the constitutional claims have been dismissed because of repeal of the iD policy by the school board.
>>>>> Again, if you think otherwise, show me a case where there was live claim for nominal damages in either the original complaint or in an amended complaint that was filed in a timely manner. <<<<<
You have not shown a case where the court ruled that the timing of a nominal damages claim is a factor.
Larry wrote: Wrong -- the constitutional issues had not been resolved -- they had been dismissed.
Let me walk you through this again. From the ruling:
" In order to protect Plaintiffs’ constitutional rights and to allow Defendants time to revise or clarify the policy, this court entered an Order and Preliminary Injunction on March 2, 2005. That Order enjoined Defendants from applying the non-discrimination policy “to prohibit Plaintiffs from limiting membership and participation in their organization to students who, upon individual inquiry, affirm that they support Plaintiffs’ goals, agree with Plaintiffs’ beliefs, and agree to conform their behavior to Plaintiffs’ tenets and standards of conduct."
The court goes on to note that:
"There have been two important developments since the March 2, 2005 Order: (1) on May 23, 2005, UNC-CH published a statement entitled “Official Recognition of Student Organizations – Non-Discrimination Policy,” which offered official recognition to “student organizations that select their members on the basis of commitment to a set of beliefs,” and (2) in September 2005, Plaintiffs applied for and received official recognition,
entitling them to full and equal privileges at UNC-CH for the 2005-06 academic year. (James Moeser Aff. ¶¶ 6 & 7, May 25, 2005; Jonathan E. Curtis Aff. ¶ 3, March 7, 2006 (“Second Curtis
Aff.”).) Thus, AIO is currently enjoying the benefits of official recognition, including having money in a student activities fund account, reserving meeting space in the student union, and being listed on the university’s website. (Second Curtis Aff. ¶¶ 4-6.)"
Hence my comment about it being "resolved." There was no live claim or controversy anymore. It was an ex-case. Bereft of life, it rested in peace. Etc.
In filing their amendment, the plaintiffs were trying to play "Weekend at Bernie's" with its corpse. As the court noted:
"Plaintiffs’ proposed amended complaint says almost nothing about the 2005 Policy, but does make one allegation that the policy is “vague in its terms,” when viewed as “supplementing
the university nondiscrimination policy regime.” (Proposed Am.
Compl. ¶ 89.) Plaintiffs’ vagueness argument assumes that the
2003 Policy is also still published and that the two contradictory policies must somehow be reconciled. This is no
longer the case, as UNC-CH has now completely removed the 2003
Policy, in favor of the 2005 Policy"
In other words, "no case here to prevail on." For that reason, the court notes in footnote 26:
"In order to recover nominal damages, Plaintiffs would have to prevail on the merits of their case. Farrar v. Hobby, 506 U.S. 103, 112 (1992) (nominal damages are appropriate when civil rights plaintiff establishes violation of his due process rights, but is unable to prove actual injury); Brister v. Faulkner, 214 F.3d 675, 685-86 (5 Cir. 2000) (civil rights plaintiffs not entitled to nominal damages where court found that their constitutional rights had not been violated). Here, Plaintiffs have not proven a constitutional violation and the
case is dismissed as moot, so that possibility is foreclosed."
and the court denied the amendment to the complaint.
Larry wrote: Wrong -- I am talking about a hypothetical situation in the Kitzmiller case where all of the constitutional claims have been dismissed because of repeal of the iD policy by the school board.
Your hypothetical is irrelevant since the plaintiffs in Kitzmiller weren't trying to amend a nominal damages claim into a dead case.
Larry said: You have not shown a case where the court ruled that the timing of a nominal damages claim is a factor.
See above, and don't forget to cite me a case with a nominal damages claim in the original complaint that was mooted.
>>>>> Let me walk you through this again. <<<<<
No, I won't let you walk me through this bullshit again.
The judge never said, implied, or even suggested that he would have continued the case had the nominal damages claim been in the original complaint instead of the amended complaint. Finis.
From page 34:
"Plaintiffs neither sought nor were granted damages, not even nominal damages."
Evidently the court disagreed about the nominal damages claim being "present in the amendment."
>>>>>> "Plaintiffs neither sought nor were granted damages, not even nominal damages." <<<<<<
The judge never said, implied, or even suggested that he would have continued the case if the claim for nominal damages had been in the original complaint instead of the amended complaint. In fact, he implied the opposite:
"...... the court in its discretion will not allow the continuation of a lawsuit merely to allow Plaintiffs to seek nominal damages, which, even if proven, would be limited to one dollar."
Nothing in that statement is dependent on the timing of the nominal damages claim.
Finis.
Larry said: The judge never said, implied, or even suggested that he would have continued the case if the claim for nominal damages had been in the original complaint instead of the amended complaint.
Irrelevant. You can't use a case where there wasn't a nominal damages claim to support your contention that a case involving a nominal damages claim can be mooted.
Boy, Larry, you sure got whupped on this one. Way to go, Martian Buddy, very impressive.
Larry said: There was a nominal damages claim, idiot, it was in the amended complaint.
There's a direct quote from the ruling right here in this thread saying otherwise, Larry. Here it is again, since you missed it the first time:
"Plaintiffs neither sought nor were granted damages, not even nominal damages."
See - page 34 of the ruling.
That's the point - the plaintiffs weren't allowed to amend their complaint, so the original complaint (the one lacking a nominal damages claim) is the only one that he could be talking about. There's no "amended complaint" because the court refused to allow the plaintiffs to amend it. No amendment, no nominal damages claim.
Finis, as you would say.
>>>>>> That's the point - the plaintiffs weren't allowed to amend their complaint, so the original complaint (the one lacking a nominal damages claim) is the only one that he could be talking about. <<<<<<
You disgusting pettifogging troll -- here for the zillionth time is where he dismissed the case --
"...... the court in its discretion will not allow the continuation of a lawsuit merely to allow Plaintiffs to seek nominal damages, which, even if proven, would be limited to one dollar."
There is no mention there of an original complaint or an amended complaint. He did not say that the timing of the nominal damages claim made any difference to him. If the timing of the nominal damages claim had been an important issue that could have been raised on appeal, he would have said something about that issue.
>>>>> There's no "amended complaint" because the court refused to allow the plaintiffs to amend it. No amendment, no nominal damages claim. <<<<<<
There was an amended complaint, bozo -- the fact that the judge did not accept it does not mean that it did not exist.
If you say one more time that there was no nominal damages claim or no amended complaint or anything to those effects, I will censor your comment as a violation of my rule of not allowing blatant lies about objective facts.
>>>>>Finis, as you would say. <<<<<
Your lies here are finis, bozo. Enough is enough. No mas aqui.
Larry, the relevant passage is "(civil rights plaintiffs not entitled to nominal damages where court found that their constitutional rights had not been violated)" as I quoted before and Martian buddy has also presented. Since there was no constitutional violation alleged or proven, there was no valid claim for nominal damages. This is completely different from your hypothetical Kitzmiller resolution where the school board withdraws the ID statement. Since the statement WAS read at some point, there was an (alleged) constitutional violation allowing for claims of nominal damages. ¿Que es lo que no entiendes? ¿Te lo tengo que decir en español para que veas lo que es la verdad, pendejo?
Raza odiada
>>>>>> Since there was no constitutional violation alleged or proven, there was no valid claim for nominal damages. This is completely different from your hypothetical Kitzmiller resolution where the school board withdraws the ID statement. Since the statement WAS read at some point, there was an (alleged) constitutional violation allowing for claims of nominal damages. <<<<<<
You are a hopeless idiot. In Alpha Iota Omega Christian Fraternity v. Hamm, there was an "alleged constitutional violation" -- that was the basis of the suit. And "something WAS done at some point" to allegedly violate the constitutional rights of the fraternity. The judge dismissed the constitutional claims because of voluntary cessation by the university. I am talking about the same possible situation in Kitzmiller -- the judge hypothetically dismissing the constitutional claims because of repeal of the ID policy by the school board.
I have never seen jerks so dumb as to argue that nominal damages claims should prevent mootness.
>>>>>> That means: there was no constitutional violation proven by the plaintiffs. <<<<<<
But you said that there was no constitutional violation "alleged" by the plaintiffs, and that is simply untrue.
Larry wrote, "But you said that there was no constitutional violation "alleged" by the plaintiffs, and that is simply untrue."
I assumed that there had not been one. I still don't know if that was the case here. Regardless, how does "no constitutional violation proven" correspond to the Dover case where a constitutional violation was alleged (and proven)?
>>>>>I was talking about the situation in the Dover case prior to release of the decision, when the constitutional violation was considered only "alleged" and not "proven."
But your argument, as far as I can tell, is based on the notion that a repeal of the policy of the school board would have mooted the case. It was not, however, have failed to address the alleged (at that time) constitutional violation that had taken place. Since the judge ruled that the alleged violation was a proven violation, there was a constitutional violation (unlike the case cited above). That being the case, the two suits are completely different and the lack of nominal damages in that suit has no bearing on what could have happened in Dover. Capisce? (I've forgotten my Italian.) Perhaps, ¿comprendes méndez? would be better.
Larry said: I have never seen jerks so dumb as to argue that nominal damages claims should prevent mootness.
You've been shown at least four examples of it: O'Connor vs. Washburn University, Utah Animal Rights Coalition vs. Salt Lake City Corp, Beyah vs. Coughlin, and Farrar v. Hobby. How many more would you like?
In all four examples, there was at least an underlying claim for declaratory relief. This claim was there even though the courts may have falsely believed that they dismissed this claim.
A grant of nominal damages is trivial and merely symbolizes that the plaintiff has succeeded in proving some other claim, e.g., a claim for injunctive or declaratory relief. If all other claims are dismissed prior to judgment, then there would be no reason to grant nominal damages, and the nominal damages claim should therefore be dismissed also.
Anonymous said (Wednesday, July 23, 2008 2:13:00 PM) --
>>>>> Since the judge ruled that the alleged violation was a proven violation, there was a constitutional violation <<<<<
If the school board had repealed the ID policy prior to judgment, Judge Jones could have declared the case to be moot even if he believed that the plaintiffs had proven that a constitutional violation occurred.
The Supreme Court dismissed the Marco DeFunis reverse discrimination case as moot because he was about to graduate from the law school that had discriminated against him, even though the alleged constitutional violation had been "proven" in the lower courts.
Larry wrote: In all four examples, there was at least an underlying claim for declaratory relief.
We've been through this already. What you're calling an "underlying claim for declaratory relief" is the nominal damages claim. You even cited the relevant portion of O'Connor v. Washburn University that explains that they are similar:
"“It may seem odd that a complaint for nominal damages could satisfy Article III’s case or controversy requirements, when a functionally identical claim for declaratory relief will not. But this Court as squarely so held.”"
(Bolded emphasis added.)
But let's look at something a little more current. This is from Morrison v. Board of Education of Boyd County:
"As Morrison’s own counsel acknowledged at oral argument, nominal damages are a vehicle for a declaratory judgment. As such, nominal damages have “only declaratory effect and do not otherwise alter the legal rights or obligations of the parties. . . . [T]hey can sometimes constitute effectual relief, but only with respect to future dealings between the parties.” Utah Animal Rights coal. v. Salt Lake City Corp., 371 F.3d 1248, 1267–68 (10th Cir. 2004)"
(bolded emphasis added)
This portion is also highly relevant to your claims:
"In the situation before us, Morrison seeks nominal damages based on a regime no longer in existence. To confer nominal damages here would have no effect on the parties’ legal rights. See Utah Animal Rights, 371 F.3d at 1268 (McConnell, J., concurring) (“Where . . . the challenged past conduct did not give rise to a compensable injury and there is no realistic possibility of a recurrence, nominal damages have no more legal effect than would injunctive or declaratory relief in the same case.”) (emphasis added). Because nominal damages will not provide Morrison any redress, his suit fails to satisfy the second requirement for standing."
(Italics in the original)
This is precisely what Anonymous has been saying; in Kitzmiller v. Dover, the challenged conduct did cause an injury.
>>>>>>You even cited the relevant portion of O'Connor v. Washburn University that explains that they are similar:
"“It may seem odd that a complaint for nominal damages could satisfy Article III’s case or controversy requirements, when a functionally identical claim for declaratory relief will not. But this Court as squarely so held.”"<<<<<<<
And I am saying that the judges were mistaken because they didn't realize that there was an underlying claim for declaratory relief. Just because a judge says something doesn't make it right. And note that they remark that this situation is "odd" -- that's because they didn't understand that there was an underlying claim for declaratory relief.
>>>>>"As Morrison’s own counsel acknowledged at oral argument, nominal damages are a vehicle for a declaratory judgment. <<<<<<
Actually, it is the other way around -- the declaratory-relief claim is the "vehicle" that carries the nominal-damages claim.
>>>>> "In the situation before us, Morrison seeks nominal damages based on a regime no longer in existence. . . . . Because nominal damages will not provide Morrison any redress, his suit fails to satisfy the second requirement for standing." <<<<<<<
That is exactly what I have been saying -- if the Dover school board had repealed the ID policy prior to judgment, then the plaintiffs would be seeking "nominal damages based on a regime no longer in existence. . . . . Because nominal damages will not provide [them] any redress, [their] suit fails to satisfy the second requirement for standing."
>>>>>>This is precisely what Anonymous has been saying; in Kitzmiller v. Dover, the challenged conduct did cause an injury. <<<<<<
But there have been other cases where injury had been caused but the cases were dismissed because of voluntary cessation by the defendant. In fact, in the Marco DeFunis case, there was no voluntary cessation by the defendant but the Supreme Court dismissed the case as moot anyway.
You are simply arguing the absurd -- that a nominal damages claim is sufficient to prevent mootness when all other claims, including declaratory-relief claims, have been dismissed.
You are just kicking a dead horse.
Larry wrote, "But there have been other cases where injury had been caused but the cases were dismissed because of voluntary cessation by the defendant. In fact, in the Marco DeFunis case, there was no voluntary cessation by the defendant but the Supreme Court dismissed the case as moot anyway."
Wasn't Marco deFunis accepted into the law program he accused of discrimination? Wasn't he about to graduate when SCOTUS dismissed his claims? Int this case, there were no damages -- he was accepted into and graduated from the school he accused of discrimination. If anything, the parallel here is the Buckannon (sp) case that Larry likes to trot out.
Larry said That is exactly what I have been saying -- if the Dover school board had repealed the ID policy prior to judgment, then the plaintiffs would be seeking "nominal damages based on a regime no longer in existence. . . . . Because nominal damages will not provide [them] any redress, [their] suit fails to satisfy the second requirement for standing."
Wow, can you be any more dishonest? You cut out the portion that specifically rebuts your claim:
“Where . . . the challenged past conduct did not give rise to a compensable injury and there is no realistic possibility of a recurrence, nominal damages have no more legal effect than would injunctive or declaratory relief in the same case.”
Larry said: You are simply arguing the absurd -- that a nominal damages claim is sufficient to prevent mootness when all other claims, including declaratory-relief claims, have been dismissed.
No, I'm saying the same thing that the judge said in O'Connor v. Washburn University; that a nominal damages claim is very similar to a claim for declaratory relief, but it is not the same and it is not treated the same by the courts. You've now seen five examples of this in action - how many more will it take to get the point across?
>>>>>>Wow, can you be any more dishonest? You cut out the portion that specifically rebuts your claim:
“Where . . . the challenged past conduct did not give rise to a compensable injury and there is no realistic possibility of a recurrence, nominal damages have no more legal effect than would injunctive or declaratory relief in the same case.” <<<<<<
"Wow" yourself. That portion does not rebut my claim, it supports it.
>>>>>> No, I'm saying the same thing that the judge said in O'Connor v. Washburn University; that a nominal damages claim is very similar to a claim for declaratory relief, <<<<<<
He didn't say it was similar to a claim for declaratory relief -- he said it should be treated the same. He essentially said that when a claim for declaratory relief is dismissed and the only remaining claim is for nominal damages, the nominal damages claim should be dismissed also.
You are continuing to make absurd arguments. A nominal damages award is just a symbolic token of vindication awarded when the plaintiff succeeds on some other claim. If all other claims have been dismissed, then there would be no reason to grant nominal damages and so the nominal damages claim must be dismissed also. You are really incredibly stupid to not understand this simple idea.
>>>>> You've now seen five examples of this in action -- how many more will it take to get the point across? <<<<<<
A zillion of these examples won't get the point across because there is no point. Give up already. You are wasting my time -- you are not going to persuade me to agree with your asinine ideas.
Larry said: "He didn't say it was similar to a claim for declaratory relief"
His exact words were "functionally identical." You even cited a portion of his dissent which elaborates on that point:
"Nominal damage awards serve essentially the same function as declaratory judgments; indeed, scholars tell us that nominal damages were originally sought as a means of obtaining declaratory relief before passage of declaratory judgment statutes.......For justiciability purposes, I see no reason to treat nominal and declaratory relief differently."
Got it yet? The purpose is similar to a claim for declaratory judgment, but it is not the same. How can you keep failing to grasp the clear meaning of text you posted in the first place?
>>>>> The purpose is similar to a claim for declaratory judgment, but it is not the same. <<<<<<
I don't agree that the purpose is the same. In fact, nominal damages are not even associated with declaratory relief -- nominal damages can be given along with other kinds of relief, e.g., injunctive relief and compensatory relief. Awards of nominal damages are just symbolic tokens of vindication. Nominal damages are actually unnecessary and rather silly and if they are going to be misused then they might as well be outlawed.
>>>>> Got it yet? <<<<<<
No, I don't "get it" and I am not going to "get it" -- I already told you that you are not going to change my mind, so give it up already.
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