Grounds for dismissal in Kitzmiller v. Dover
In a school board election prior to the release of the decision in the Kitzmiller v Dover intelligent design case, almost all of the school board members who supported the ID policy were replaced by new members who had campaigned against the policy. So the question is this: would it have been OK for Judge Jones to immediately dismiss the case on the grounds that the case was moot because the new school board was expected to repeal the ID policy anyway? Here are some issues raised by this question:
May a judge in a civil trial consider outside factors -- e.g., news reports -- that are not part of the case record? Juries are often instructed not to consider outside factors, but does the same restriction apply to judges in civil trials? I assert that outside factors are admissible under the Federal Rules of Evidence's Rule 201. Judicial Notice of Adjudicative Facts, which says,
Rule 201. Judicial Notice of Adjudicative Facts
(a) Scope of rule.
This rule governs only judicial notice of adjudicative facts.
(b) Kinds of facts.
A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. (emphasis added)
(c) When discretionary.
A court may take judicial notice, whether requested or not. (emphasis added)
(d) When mandatory.
A court shall take judicial notice if requested by a party and supplied with the necessary information.
(e) Opportunity to be heard.
A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(f) Time of taking notice.
Judicial notice may be taken at any stage of the proceeding.
(g) Instructing jury.
In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.
A comment under another post on this blog falsely stated, "By law and rule, federal judges are only allowed to rule based on information offered for the record."
May a judge base a decision on an expected future action, e.g., elected officials acting in accordance with a campaign platform, e.g., repeal of the ID policy by the new school board members who campaigned against it? The judge can always rescind the decision if the expected future action does not occur.
Also, a lot of people have the mistaken idea that the "voluntary cessation" principle was an absolute barrier to dismissal of the case. This principle generally says that when a defendant voluntarily ceases a challenged action prior to judgment, the case may not be dismissed on grounds of mootness if there is a possibility that the challenged action can be restored or repeated. However, in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), the case was dismissed because of the government's voluntary cessation even though there was a possibility of repetition, and furthermore an attorney fee award to the plaintiffs was denied even though it was the lawsuit that caused the voluntary cessation. "Catalyst theory" is the name for the notion that a party is entitled to an attorney fee award when that party has failed to secure a judgment on the merits or a court-ordered consent decree but has achieved the desired result because the lawsuit caused a voluntary change in the defendant’s conduct. The Darwinists have been hallucinating that the Buckhannon decision does not exist -- the Darwinists have even denied that Jones could have dismissed the case as moot even if the school board had repealed the ID policy prior to judgment.
This is an old issue -- I asserted that Judge Jones, by saying that the school board election results would not affect his decision, implicitly told the school board that repealing the ID policy would not do them any good and I asserted that this was improperly giving legal advice to the school board. The incredibly obtuse Darwinists denied that this interpretation of what Judge Jones said is possible.
Commenters here should observe the following rules:
(1) Do not misrepresent objective facts. For example, if a newspaper reported that Judge Jones said that the school board election results would not affect his decision, don't say that he told the newspaper that he was going to follow the law.
(3) Don't just say that someone is wrong without saying why.
(4) Don't beg the question, e.g., saying that Judge Jones could not dismiss the case because he could not dismiss the case.
Comments that violate the above rules are subject to censorship. I don't want this blog cluttered up with garbage.