Grounds for dismissal in Kitzmiller v. Dover
A discussion on one of the threads here raised what is IMO some interesting legal questions.
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:
.
FIRST ISSUE:
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,
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."
SECOND ISSUE:
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.
RELATED ISSUE:
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.
(2) Avoid ad hominem attacks, e.g., saying that the attorney who advised the board to repeal the ID policy was just a "real estate lawyer." The questions here are just general legal questions and specialized knowledge is neither required nor applicable.
(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.
.
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:
.
FIRST ISSUE:
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."
SECOND ISSUE:
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.
RELATED ISSUE:
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.
.
posted by Larry Fafarman | 7/08/2008 06:37:00 PM
34 Comments:
I thought there would be "no deletion of comments?" I took the liberty of saving the header at the top of your blog, but even now it still says that "censorship will be avoided"... shouldn't you edit that to say that "there will be deletion of comments whenever I feel like it?"
I struck the rule about ad hominem attacks because I think that this rule was overly restrictive. The other rules are necessary to help reduce the amount of garbage on this blog. For example, Voice in the Urbanness kept repeating over and over again that Judge Jones said that he was going to follow the law, but the newspaper never reported that he said that and there is no evidence that he believed that the law required him to ignore the election results or a repeal of the ID policy. I finally just got sick of it and started censoring his comments that made that totally false claim.
The remaining rules above still allow visitors reasonable opportunities to express their views.
So are you going to alter the header at the top of your blog to reflect the new rules, since now there are several things that will get you censored if you say them?
If Zachary Blount can say that Cit+ evolution was not a goal of Lenski's experiment, then I can say that deleting utter garbage is not censorship.
> For example, Voice in the Urbanness kept repeating over and over again that Judge Jones said that he was going to follow the law <
And you still don't understand it. If you censored everything you didn't understand there wouldn't be anything remaining on the blog.
> there is no evidence that he believed that the law required him to ignore the election results or a repeal of the ID policy. <
It is too obvious to bother to state. Then again, you have shown you know nothing about the law.
> I can say that deleting utter garbage is not censorship. <
Than you should find no fault with the many blogs who have blocked you.
So basically what I'm reading is that, "Censorship will be avoided in my blogs -- there will be no deletion of comments, no closing of comment threads," means instead, "I'll censor whatever I darned well please."
Good to know.
Larry said, "The remaining rules above still allow visitors reasonable opportunities to express their views."
Speaking of comparisons to Nazi Germany. . .
If Zachary Blount can say that Cit+ evolution was not a goal of Lenski's experiment, then I can say that deleting utter garbage is not censorship.
Again, great evidence of Larry's moral code: if he thinks (emphasis on "think") someone else did something wrong, it's okay for him to do it, too. Two wrongs make a right in his mind. This is a moral principle he has stated previously, and it appears it's one to which he holds true.
Phae, there are some other interesting currents here.
Larry desires to be the "Designer" of his blog. Hence the "deleting utter garbage" phrase, wherein he purifies it. There actually is a parallel to the Lenski experiment, where Larry fantasizes himself -- not as Lenski -- but as a Designer. He notices that his poor hungry pet EC's would be able to dine if they could use citrate. As Designer, it behooves him to see to it that they can eat. He therefore demands not only to (retroactively) interfere in the experiment's goals and design, but to "fix" the bacteria. And he also fantasizes that this is the way the whole world works.
Would you say he bears comparison to Faust or is there a better analogy?
>>>>>>If Zachary Blount can say that Cit+ evolution was not a goal of Lenski's experiment, then I can say that deleting utter garbage is not censorship.<<<<<<
So why don't you start with your own posts - a great many of them are DEFINITELY utter garbage.
See, this is exactly what I mean! Look at all the garbage that has been posted here by trolls -- and not one of them has even attempted to substantively address the main issues of my post! They have not even attempted to show why Judge Jones should not have dismissed the case on the basis of the election results alone! Note ViU's response in particular --
>>>>>> For example, Voice in the Urbanness kept repeating over and over again that Judge Jones said that he was going to follow the law <
And you still don't understand it.
> there is no evidence that he believed that the law required him to ignore the election results or a repeal of the ID policy. <
It is too obvious to bother to state. <<<<<<<
ViU's comment should be deleted, but I am leaving it here as an example of what I am talking about.
Larry, wasn't this the topic that got you booted off of Ed's blog?
As far as your interpretation of the West Virginia case: that doesn't apply in all situations as the SCOTUS documents attest. It applied there from, as far as I have gathered, because the law behind the reason for the lawsuit changed. In Dover, the law did not change. It's a different situation. The "lawmakers" (school board members hardly qualify as law makers, but the situation is a bit analogous) did change, but the laws did not.
Also, the newly elected school board members (or at least one), expressed an interest in waiting to see if the policy was unconstitutional before changing the policy.
Furthermore, only one lawyer said that changing the policy would save the school board the financial impact. School board members or citizens who spoke at the meeting where that lawyer's analysis was presented disagreed, arguing that it was not a correct interpretation.
I'll stop here for now. It should be fun to see your response.
> and not one of them has even attempted to substantively address the main issues of my post! <
All of them seem to address a very substantive issue; your arbitrary censorship.
> ViU's comment should be deleted, but I am leaving it here as an example of what I am talking about. <
It serves as a great example of what he is talking about. You just don't understand.
Anonymous said (Wednesday, July 09, 2008 9:48:00 AM) --
>>>>>> Larry, wasn't this the topic that got you booted off of Ed's blog? <<<<<<
No, that was a different topic. I argued that under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a judge may dismiss a case on grounds of "failure to state a claim upon which relief may be granted" when a plaintiff rejects an out-of-court settlement offer that offers relief equal to or greater than the maximum relief that could possibly be granted by the court. If the court cannot grant more relief than the defendant has offered, then the court cannot grant any relief. Duh.
>>>>>> As far as your interpretation of the West Virginia case: that doesn't apply in all situations as the SCOTUS documents attest. It applied there from, as far as I have gathered, because the law behind the reason for the lawsuit changed. In Dover, the law did not change. <<<<<<
Some Darwinists even claimed that Judge Jones was not allowed to dismiss the case even if the ID policy was repealed -- for example, Fatheaded Ed Brayton has several posts making that claim. I said that trying to argue with Darwinists makes me feel like I am trying to spoonfeed an uncooperative baby who keeps knocking away the spoon and spattering the food and making a big mess. A more accurate description is that Darwinists need to be tube-fed while being tied down to keep them from pulling out the tube.
>>>>>> Also, the newly elected school board members (or at least one), expressed an interest in waiting to see if the policy was unconstitutional before changing the policy. <<<<<<
The judge could have forced their hand by tentatively dismissing the case on the basis of an assumption that they would follow through on their campaign platform by repealing the ID policy at the first clear opportunity. And so far no one has shown me any evidence that he was not allowed to do this.
>>>>>> Furthermore, only one lawyer said that changing the policy would save the school board the financial impact. <<<<<<
And that lawyer prepared a written report backing his position. And according to the news report, only one lawyer disagreed -- the Thomas More Law Center's lawyer representing the school board in the case. He had an ax to grind -- he wanted the decision to be appealed.
>>>>> School board members or citizens who spoke at the meeting where that lawyer's analysis was presented disagreed, arguing that it was not a correct interpretation. <<<<<<
I don't remember if they disagreed with his analysis or not. And his analysis was in a written report -- even if those school board members and citizens knew how to do legal research (probably most did not), they did not have time to prepare responses to the report. It took me a long time to learn how to do legal research and I had the benefit of assistance from the librarians at the Los Angeles County Law Library.
>>>>> It should be fun to see your response. <<<<<
Yes -- the stupidity of Fatheaded Ed Brayton and other Darwinists is very funny.
Larry wrote, "No, that was a different topic. I argued that under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a judge may dismiss a case on grounds of "failure to state a claim upon which relief may be granted" when a plaintiff rejects an out-of-court settlement offer that offers relief equal to or greater than the maximum relief that could possibly be granted by the court. If the court cannot grant more relief than the defendant has offered, then the court cannot grant any relief. Duh."
By your own interpretation of this rule, then, the case was not moot-able, since the defense would have reversed the policy solely to avoid paying attorney fees for the plaintiffs -- hence, the court would have been able to provide greater relief than any settlement.
I wrote, quoted by Larry: ">>>>>> As far as your interpretation of the West Virginia case: that doesn't apply in all situations as the SCOTUS documents attest. It applied there from, as far as I have gathered, because the law behind the reason for the lawsuit changed. In Dover, the law did not change. <<<<<<"
To which Larry responded, ignoring my point completely: "Some Darwinists even claimed that Judge Jones was not allowed to dismiss the case even if the ID policy was repealed -- for example, Fatheaded Ed Brayton has several posts making that claim."
Your response to my claim? All you did was change the topic.
Larry wrote, "The judge could have forced their hand by tentatively dismissing the case on the basis of an assumption that they would follow through on their campaign platform by repealing the ID policy at the first clear opportunity. And so far no one has shown me any evidence that he was not allowed to do this."
So he had to read their minds and dismiss the case based on their campaign platform, but contrary to their post-election comments to wait for a verdict. Even if he were allowed to do this (which I doubt), he's now supposed to have ESP. Wow! No wonder you hate the guy!
Larry wrote, "And that lawyer prepared a written report backing his position. And according to the news report, only one lawyer disagreed"
Oh wow! The lawyer had a written report! I thought he just spoke out of his ass! Golly gee, a written report! He must really know his letters! Only one lawyer was quoted as dissented, and his that lawyer wanted a ruling, but did he know that he was going to lose? Maybe this lawyer had ESP as well! (But if he did, then maybe he knew that the case wouldn't be appealed, in which case... oh, never mind, it doesn't make sense). If ID were scientific, then the religious motivations of the defendants would be irrelevant (or should be).
Larry wrote, "I don't remember if they disagreed with his analysis or not. And his analysis was in a written report -- even if those school board members and citizens knew how to do legal research (probably most did not), they did not have time to prepare responses to the report"
Right, the written report. Maybe the school board members didn't know how to read. Maybe, if it was presented at a meeting, they didn't have time to sit there and read it! Of course, this might be why they chose to ignore it, despite any legal advice they may have received.
The only stupidity that is funny is yours. It's like watching Beavis and Butthead. I guess you're Beavis and Jim is Butthead. After all, Butthead was the smarter of the two, mentally retarded just enough to come up with really stupid ideas.
>>>>>> By your own interpretation of this rule, then, the case was not moot-able, since the defense would have reversed the policy solely to avoid paying attorney fees for the plaintiffs -- hence, the court would have been able to provide greater relief than any settlement. <<<<<<
My statement was general, without consideration of an attorney fee award. For example, my interpretation of Rule 12 (b)(6) could be applied at the beginning of a case, when an attorney fee award would not be a significant issue. And in the Buckhannon decision, which was not based on FRCP Rule 12 (b)(6), the courts both (1) dismissed the case because of voluntary cessation and (2) denied an attorney fee award to the plaintiffs.
The threat that an attorney fee award will be imposed even if the defendants voluntarily cease the challenged activity prior to judgment discourages the defendants from voluntary cessation even when the defendants want to cease the activity for reasons other than trying to avoid the award. For example, the new Dover school board members might have thought, "we really think that this ID policy is wrong and we want to repeal it, but since we will have to pay an attorney fee award anyway if we repeal it now, we might as well continue fighting the lawsuit and maybe if we get lucky and win we will avoid paying the award, and even if we lose we will get to hear the judge's opinion."
Also, Fatheaded Ed Brayton did not raise the issue of attorney fee awards. Here was his response --
Larry, I've frankly just become bored with this. Now you're either lying about what FRCP 12 says or you're just too stupid to understand basic English. Section B6 that you cite specifically says that a case can be dismissed for failure to state an actionable claim:
(6) failure to state a claim upon which relief can be granted
That has nothing, absolutely nothing, to do with failure to accept a proposed settlement, it has to do with whether they've made a claim that the court can provide relief for under the law. There is nothing whatsoever in the standards about dismissing for failure to make a settlement that the court thinks is reasonable. Period. It couldn't have happened in Dover, it couldn't have happened in El Tejon either.
Ed's above comment says absolutely nothing about attorney fee awards! And in the El Tejon (Hurst v. Newman) case that Ed mentioned, an attorney fee award was not an issue because the case was settled out of court before it started.
The response of Ed's Friend Dan was even more telling --
Larry, I'm the friend who teaches constitutional law. I've stayed out of this until now, because all I can really add is "Larry, you're a fucking idiot." I'm not going to engage in a protracted discussion with you, Larry, because you are so plainly impervious to the truth that it is pointless
It doesn't matter whether or not the court rule was intended to have the interpretation I gave it -- what matters is that my interpretation was reasonable.
>>>>>> To which Larry responded, ignoring my point completely: "Some Darwinists even claimed that Judge Jones was not allowed to dismiss the case even if the ID policy was repealed -- for example, Fatheaded Ed Brayton has several posts making that claim."
Your response to my claim? All you did was change the topic. <<<<<<
I didn't change the topic -- I said that to some Darwinists it made no difference whether the ID policy was repealed or not -- they claimed that the case could not be mooted, period.
>>>>>> So he had to read their minds and dismiss the case based on their campaign platform, but contrary to their post-election comments to wait for a verdict. Even if he were allowed to do this (which I doubt), he's now supposed to have ESP. <<<<<
So if he shouldn't take the campaign platform or election results into account, then why should he take into account the board members' post-election comments to wait for a verdict?
As I said, he could have tentatively dismissed the case immediately on the basis of the election of school board members who opposed the ID policy, and he could have then rescinded the dismissal if they didn't follow through by repealing the policy. No one has presented any reason why he could not have done this.
>>>>> Oh wow! The lawyer had a written report! <<<<<<
That's right -- "oh wow." A written report is generally worth a lot more than an off-the-cuff opinion -- even coming from a lawyer. Anyway we don't know what was in the report, so we are not in a position to discuss it.
>>>>> The only stupidity that is funny is yours. <<<<<
My previous reply to you did not attack you personally, dunghill.
Larry wrote, "---"
Except voluntary cessation was not mentioned as why they denied the plaintiffs' claim: it was mentioned as a concept that supported the plaintiffs' claim but that did not apply here. The first time the term is mentioned is: ""It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice" unless it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000)." What makes it clear here would be the fact "that the allegedly wrongful behavior could not reasonably be expected to recur." In the context of this case, at issue was the application of standards approved by the state legislature. Since the full legislature voted to change the standards, it was a (potentially illegal) behavior that could not be expected to recur. In Dover, all that had to happen was for the school board to change hands (again) -- as happened in Kansas.
Also note that the attorney fee award was lowered on the basis of the promise not to appeal.
Larry mentions Rule 201, Judicial Notice of Adjudicative Facts, but does not provide any evidence that the school board election was an "adjudicative fact." This had nothing to do with the behavior of the activity under consideration in the lawsuit (only with the composition of the school board that made such activity take place).
Larry wrote, "Ed's above comment says absolutely nothing about attorney fee awards"
But Ed's comment has everything to do with your claim that mooting the case made it an "inactionable claim," which is wrong. Just because the policy has been changed does not change that it did take place and that it was unconstitutional.
Larry wrote, "what matters is that my interpretation was reasonable."
It was reasonable for a moron. It has no basis in reality.
Larry wrote, "I said that to some Darwinists it made no difference whether the ID policy was repealed or not -- they claimed that the case could not be mooted, period."
And they were right. Your reference of the Buckhanon case does not show that you were correct in asserting that the case was moot-able.
Larry wrote, "As I said, he could have tentatively dismissed the case immediately on the basis of the election of school board members who opposed the ID policy, and he could have then rescinded the dismissal if they didn't follow through by repealing the policy. No one has presented any reason why he could not have done this."
So the judge should make one decision one day, wait a few weeks, and then change the decision when something happens. No wonder people consider you delusional! What guarantee was there that another school board would resuscitate the policy a few years later. One reason why the members of the school board lost was because 1) they were shown to be liars and 2) they were shown to be (likely) responsible for a million-dollar verdict against the school board. Most people in the community probably supported the policy itself until they realized it was a loser in court -- and they realized what it would cost.
Larry wrote, "A written report is generally worth a lot more than an off-the-cuff opinion -- even coming from a lawyer"
Not really. I've read some really bad written reports. Your posts come to mind. Jim Sherwood's written reports as well. The written material on the worldnutdaily ...
> And so far no one has shown me any evidence that he was not allowed to do this. <
They have shown evidence but you keep knocking away the spoon and spattering the food and making a big mess.
>>>>>> Except voluntary cessation was not mentioned as why they denied the plaintiffs' claim: it was mentioned as a concept that supported the plaintiffs' claim but that did not apply here. The first time the term is mentioned is: ""It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice" unless it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167, 189 (2000)." <<<<<<<<
The term "voluntary cessation" appears in Buckhannon and the equivalent term "voluntary change in conduct" appears many times, and the Friends of Earth precedent is mentioned. Voluntary cessation is the reason why Buckhannon was dismissed as moot. However, the plaintiffs did not challenge the dismissal (Justice Ginsburg wrote, "Plaintiffs did not appeal the mootness determination") but challenged the denial of attorney fees. The Supreme Court upheld the denial of attorney fees.
>>>>>> Since the full legislature voted to change the standards, it was a (potentially illegal) behavior that could not be expected to recur. In Dover, all that had to happen was for the school board to change hands (again) -- as happened in Kansas. <<<<<<
And legislatures don't change hands? Come on. And the new Dover school board members were especially unlikely to restore the ID policy because opposition to the policy was their main if not their sole campaign issue.
>>>>> Also note that the attorney fee award was lowered on the basis of the promise not to appeal. <<<<<
Not true -- the new school board could not appeal because they repealed the ID policy. I think that the plaintiffs wanted the school board to appeal because a decision of a single district court judge has little value as precedent.
>>>>> Larry mentions Rule 201, Judicial Notice of Adjudicative Facts, but does not provide any evidence that the school board election was an "adjudicative fact." This had nothing to do with the behavior of the activity under consideration in the lawsuit (only with the composition of the school board that made such activity take place). <<<<<
An "adjudicative fact" can mean anything -- it can mean a fact that is used in making a decision. I claimed that Judge Jones could have dismissed the case on the grounds that the new school board was going to repeal the ID policy anyway. And what if the board had actually repealed the policy prior to judgment -- would that repeal not be an "adjudicative fact"?
>>>>> It was reasonable for a moron. It has no basis in reality <<<<<<
You lousy dunghill -- I warned you about impoliteness. My point is that when a court cannot grant more relief than offered by the defendant, then there is a failure to "state a claim upon which relief can be granted" (FRCP Rule 12(b)(6)). Duh.
>>>>> And they were right. Your reference of the Buckhanon case does not show that you were correct in asserting that the case was moot-able. <<<<<
Wrong. Buckhannon was exactly the same kind of situation as in Kitzmiller v. Dover.
>>>>>> So the judge should make one decision one day, wait a few weeks, and then change the decision when something happens. <<<<<<
Well, judges sometimes change their decisions after rehearings. And I checked the federal court rules and found no rule against issuing tentative or conditional decisions. And Judge Jones could have waited to see what the school board was going to do before issuing his decision. He would not have had to wait long -- his decision was released on Dec. 20 and the board's first clear chance to repeal the ID policy was in early January (Jan. 3 or so?). The board also had an opportunity to repeal the policy in early December but did not take it.
>>>>> What guarantee was there that another school board would resuscitate the policy a few years later. <<<<<
The same problem existed in Buckhannon -- maybe to a greater degree because the state legislators presumably did not campaign primarily on a promise to repeal the law challenged in Buckhannon.
>>>>> I've read some really bad written reports. <<<<<
But we haven't read this written report, bozo, so we don't know if it was good or bad. You come up with the most ridiculous arguments.
Larry wrote, "But we haven't read this written report,"
So far so good. You are correct.
He continues, however, "bozo, so we don't know if it was good or bad"
You are right again. We don't know if it was a good report or not.
But wait... you use this report as a reason why the case could have been... well, wait, aren't you arguing that Jones shouldn't have ruled on the case before him... because someone presented a report in a school board meeting? Now I'm confused. Is your point that Jones shouldn't have ruled on the case before him or that the school board should have overturned a policy (one that very well may have turned out to be constitutional, despite the actions of the previous members of the school board) -- based on a report that we don't know if it was good or bad (and about which, a defense attorney, who might have guessed that the case was a loser but could not be certain, said was wrong)?
Your argument comes down to a number of unlikely possibilities. None of the items you mention are sure things regarding dismissal or mootness. In fact, all of them seem unlikely to have affected the ability of the judge to make a ruling in the case. Since you claim not to support ID (though you did write a post in the last couple of months claims to use their methodology, and you write a number of posts supporting ID in general or IDiotic criticism of contemporary evolutionary theory) I don't see why you really care. ID is creationism recast in a pseudo-scientific shell. The plaintiffs figured it out and the judge agreed. ID lost and probably won't win in a rematch. Get over it.
>>>>>> But wait... you use this report as a reason why the case could have been... well, wait, aren't you arguing that Jones shouldn't have ruled on the case before him... because someone presented a report in a school board meeting? <<<<<<
What is all this "wait, wait, wait" crap about? Can't you decide what you want to say before saying it?
No, the report was not the reason -- the election results was the reason. And I am not saying that Jones was required to dismiss the case because of the election results.
And come to think of it, there was a way that Jones could have dismissed the case on the basis of the election results alone -- he could have dismissed it "without prejudice." That means that the plaintiffs could have refiled the suit if the new school board failed to repeal the ID policy at the first clear opportunity.
>>>> and about which, a defense attorney, who might have guessed that the case was a loser but could not be certain, said was wrong <<<<<<
The defense attorney was biased -- he wanted the case to be appealed.
>>>>>> Since you claim not to support ID <<<<<<
I don't claim to not support ID -- I am just not a big fan of ID. I prefer to emphasize non-ID criticisms of evolution.
>>>>>> ID lost and probably won't win in a rematch. Get over it. <<<<<<<
To the Greeks: You lost at Thermopylae. Get over it.
To the Texans: You lost at the Alamo. Get over it.
To the 7th Cavalry: You lost at Custer's last stand. Get over it.
Larry wrote (ignoring history): To the Texans: You lost at the Alamo. Get over it.
They did; they won the war and their independence.
So you say, "And I am not saying that Jones was required to dismiss the case because of the election results." So you admit that the judge had no reason to dismiss the case, conceding that it was correct for him to rule on it?
Thanks, that's what I wanted to hear.
>>>>> So you admit that the judge had no reason to dismiss the case, conceding that it was correct for him to rule on it? <<<<<<
I am not saying that it was either correct or incorrect. And what I am not conceding is the notion that it was correct of him to tell the newspaper that the election results would not affect his decision, because that implied that a repeal of the ID policy would not affect his decision, and such implication was improperly giving legal advice to the defendants. It does not matter whether it was "good" or "correct" legal advice -- it was still legal advice and judges are not supposed to give legal advice to the parties.
>>>>> Thanks, that's what I wanted to hear. <<<<<<
Wasn't it a little premature to thank me before I answered your question, idiot?
So, Larry, after all this hoo-ha and arguing, you finally agree what was blindingly obvious to the rest of us from the start - that the election results had zero bearing on the judge's decision, and that he was not required to dismiss the case because of that, so the only remaining issue is your claim that the judge basically saying that the election results would not affect his decision in the slightest to a newspaper constitutes 'legal advice' to the school board. Well, frankly, that's one hell of a stretch. It's like you reading an interview with a lawyer involved in a high-profile civil suit in a newspaper, realising that you were in a similar situation to the plaintiff, suing somebody, winning, then receiving a bill from the lawyer in the newspaper as he gave you 'legal advice'.
Larry wrote, "because that implied that a repeal of the ID policy would not affect his decision,"
The statement is true. Nor would it affect his ability to make a decision on the case, which is also true. Hard to say that true statements that have no bearing on which way the case would be decided have anything to do with anything. Guess that's why you're the only one still talking about it -- almost three years after the fact.
Larry quoted me then added, ">>>>> So you admit that the judge had no reason to dismiss the case, conceding that it was correct for him to rule on it? <<<<<<
"I am not saying that it was either correct or incorrect."
So it's not incorrect that he chose to make a ruling on a case in his docket, a case whose trial phase had concluded. In that case, there's no problem, then, with the fact that he made a ruling. You're just upset that he made a ruling you didn't like. Tough shit. Get over it. ID is creationism and its supporters in Dover only wanted ID because they wanted to get Jeebus back in school. That's a slam dunk case. That's probably why Dumski bowed out (why he really bowed out, that the dispute over lawyers).
Zmidponk barfed,
>>>>> you finally agree what was blindingly obvious to the rest of us from the start -- that the election results had zero bearing on the judge's decision <<<<<<
I never agreed to that, bozo. If you continue to put words into my mouth, your comments will be deleted.
>>>>> and that he was not required to dismiss the case because of that <<<<<
That I agreed to.
>>>>>> so the only remaining issue is your claim that the judge basically saying that the election results would not affect his decision in the slightest to a newspaper constitutes 'legal advice' to the school board. Well, frankly, that's one hell of a stretch. <<<<<<
That's not a stretch at all. He was essentially telling the school board, "don't bother repealing the ID policy prior to judgment, because it is not going to do you any good."
Anonymous said (Thursday, July 10, 2008 2:57:00 PM) --
>>>>>Larry wrote, "because that implied that a repeal of the ID policy would not affect his decision,"
The statement is true. <<<<<<<
You are the first troll here to admit that. And that implication was essentially giving legal advice to litigants, which judges are not supposed to do.
>>>>> Hard to say that true statements that have no bearing on which way the case would be decided have anything to do with anything. <<<<<<
Wrong. Perhaps the school board would have repealed the ID policy prior to judgment if Judge Jones had not discouraged them from doing so by implying that a repeal of the ID policy would not affect his decision (an implication which you accepted). Then maybe higher courts -- perhaps citing the Buckhannon decision -- would have ruled that (1) such repeal mooted the case and that (2) there would be no award of attorney fees to the plaintiffs.
>>>>> You're just upset that he made a ruling you didn't like. <<<<<<
Wrong, dunghill. That is what I call "the sore loser fallacy" -- the false notion that losers' criticisms of a decision or a judge are automatically wrong just because the losers are biased. And some neutral legal scholars -- and even an anti-ID legal scholar, Jay Wexler -- have been highly critical of the Dover decision.
Larry orally excretes...
>>>>>>I never agreed to that, bozo. If you continue to put words into my mouth, your comments will be deleted.<<<<<<
So, hang on, you accept that Judge Jones was not required to dismiss the case because of the election results, but you still say that it should have had a bearing on his judgement. So, basically, anonymous had it right - you are just pissed as he made a decision you don't like.
>>>>>>That's not a stretch at all. He was essentially telling the school board, "don't bother repealing the ID policy prior to judgment, because it is not going to do you any good."<<<<<<
He told the board no such thing, as he did not make his comments to the board. He made those comments to a newspaper reporter - hence my analogy of being charged for 'legal advice' after reading a lawyer's comments in a newspaper.
>>>>>>You are the first troll here to admit that.<<<<<<
If you mean here, as in, on this comment thread, that is correct. However, if you mean here, as in, on your blog, unless you're changing your tune, and Voice In The Urbanness, plus others, who have been showing where you're wrong on other comment threads, are no longer 'trolls', then that is a complete lie. Or you're simply not comprehending answers you've been given again.
>>>>>>Wrong. Perhaps the school board would have repealed the ID policy prior to judgment if Judge Jones had not discouraged them from doing so by implying that a repeal of the ID policy would not affect his decision (an implication which you accepted).<<<<<<
No, he didn't.
>>>>>>Then maybe higher courts -- perhaps citing the Buckhannon decision -- would have ruled that (1) such repeal mooted the case and that (2) there would be no award of attorney fees to the plaintiffs.<<<<<<
Except that ignores the simple fact that the original actions, which brought the suit in the first place, actually happened. I prefer the simple explanation - Judge Jones, hearing the evidence presented in the case, found it so overwhelmingly in favor of the plaintiffs that he ruled as such. No knowing about laws X, Y and Z, no trying to cite technicalities 1, 2 and 3, just plain and simple 'plaintiffs proved their case, defendants didn't, so the plaintiffs win'.
>>>>>>Wrong, dunghill. That is what I call "the sore loser fallacy" -- the false notion that losers' criticisms of a decision or a judge are automatically wrong just because the losers are biased.<<<<<<
In this case, it's the only answer that makes any sense whatsoever. But then again, this is Larry we're talking about here - making sense is not exactly one of your strengths.
Larry, as usual, is wrong about a number of basic facts. I wasted a few minutes looking at old newspaper articles about the Dover case and found this gem: "Perhaps intelligent design should be added to the social studies curriculum, candidate Bryan Rehm said. It's a current event, he said. Whether it belongs in the district's biology class is up to a judge, Rehm said"
In other words, the board members did not campaign completely against the ID policy that was the subject of the case. They did question the extent to which it belonged in a science class, but this statement shows that they wanted to wait to see the judge's decision before deciding if and where ID would be mentioned/taught (if at all) in Dover schools.
Zmidponk provided a rather eloquent response to Larry's (worthless) comments in response to an earlier comment, so I shall not echo that statement here.
Zmidponk moaned,
>>>>>you accept that Judge Jones was not required to dismiss the case because of the election results, <<<<<
Yes, I accept that -- but that does not excuse his statement that the election results would not affect his decision, because as I said, that statement implied that repeal of the ID policy would not affect his decision and that was improperly giving legal advice to the defendants.
>>>>> but you still say that it should have had a bearing on his judgement. <<<<<
Damn you, I never said that. I told you to stop putting words in my mouth. I speculated that it might have properly had a bearing on his judgment -- he could have said, "the school board is expected to repeal the ID policy anyway, so I dismiss this case without prejudice." But I think that it would have been smarter just to wait until after the January 2006 meeting of the school board to see what the school board was going to do.
>>>>> He told the board no such thing, as he did not make his comments to the board. He made those comments to a newspaper reporter <<<<<<
You stupid fathead -- do you think that the school board was unaware of his statement published in a local newspaper? You are just too dumb to argue with. Goodbye.
Anonymous said...
>>>>> Larry, as usual, is wrong about a number of basic facts. I wasted a few minutes looking at old newspaper articles about the Dover case and found this gem: "Perhaps intelligent design should be added to the social studies curriculum, candidate Bryan Rehm said."<<<<<<
He was only one of several new board members -- what did the other board members say?
Also, a major factor in the election was the potential cost of the lawsuit -- the new members were supposed to try to save the school district's money by dropping the lawsuit immediately.
>>>>>this statement shows that they wanted to wait to see the judge's decision before deciding if and where ID <<<<<<
The judge's lousy opinion cost the district $1 million.
>>>>> Zmidponk provided a rather eloquent response to Larry's (worthless) comments in response to an earlier comment <<<<<
What comment was that, dunghill? I want the opportunity to show that Zmidponk was full of crap.
Larry wrote, "He was only one of several new board members -- what did the other board members say?"
They all ran on the same platform -- not against ID per se, but questioning its place in science classes. His comment is consistent with that platform.
Larry wrote, "the new members were supposed to try to save the school district's money by dropping the lawsuit immediately."
Where did you find any evidence of this? The only time it was even mentioned was AFTER the election when ONE member of the community contacted ONE lawyer who prepared a report (one that, you concede, could have been garbage) and whose conclusions were contradicted by at least one other lawyer -- one who was working for the school board (well, the previous one).
A more reasonable interpretation is that the community was torn by the lawsuit and upset at the actions of the standing school board. They expressed their frustrations by voting them out of office (if I remember correctly, some, if not most, of the contests were close, meaning that there was still support for the standing school board).
Larry wrote, "The judge's lousy opinion cost the district $1 million."
Only because the school board was stupid enough to adopt ID after having already made public statements that they wanted to get Jeebus back in school and then raising money for the books in a church (and then lying about the source of the money later; hmm... though shall not bear false witness... sound familiar?).
And also only because they negotiated down from more than double that! -- on the condition that they do not appeal.
Larry wrote, in response to zmidponk, ">>>>>>Wrong. Perhaps the school board would have repealed the ID policy prior to judgment if Judge Jones had not discouraged them from doing so by implying that a repeal of the ID policy would not affect his decision (an implication which you accepted).<<<<<<"
No, as I pointed out the newly elected school board was not against ID per se, but were interesting in hearing the verdict to decide where it belonged in the curriculum. They were leaning toward a social studies class I believe.
A school in Indiana at one time offered a course in comparative origin mythologies. I believe that ID was taught in that class. As long as the class did not advocate for the ID position, there are no constitutional issues with such a class. As an aside, the school stopped offering the class due to lack of interest.
Larry gurbled...
>>>>>>Damn you, I never said that. I told you to stop putting words in my mouth.<<<<<<
Well, when I say you said that the election results had no bearing on the judge's decision, you say I'm wrong and 'putting words into your mouth'. When I say you said that it should have a bearing on his decision, according to you, I am, again, wrong and 'putting words into your mouth'. You can't have it both ways, Larry - either the election results should have a bearing on Judge Jones' decision, or it shouldn't. You can't simultaneously claim both is the case.
>>>>>>I speculated that it might have properly had a bearing on his judgment<<<<<<
Ah, so I'm not putting words in your mouth - according to you, it should have a bearing on his decision. Glad you've decided which it is. However, as I pointed out, all this means is that anonymous had it correct - you are simply pissed that Judge Jones made the decision that the election results were utterly irrelevant, and therefore did not dismiss the case, with or without prejudice.
>>>>>>You stupid fathead -- do you think that the school board was unaware of his statement published in a local newspaper? You are just too dumb to argue with. Goodbye.<<<<<<
So, because the school board happened to read the paper that these comments were in (and, in fact, you've simply made the assumption that they would have done, not actually provided any evidence they did), this constitutes 'legal advice', according to you. I've already provided an analogy which kind of indicates that, even if you are correct in your assumption that the school board would have read this newspaper article, this would not be 'legal advice', but you seem to be studiously avoiding it. I'm guessing that means that you simply cannot explain how that would not be 'legal advice', yet this would be.
>>>>>>What comment was that, dunghill? I want the opportunity to show that Zmidponk was full of crap.<<<<<<
Well, you have attempted to do that, but, instead, have shown, quite thoroughly, that it is you who is 'full of crap'.
Anonymous said (Friday, July 11, 2008 7:23:00 AM) --
>>>>>> They all ran on the same platform -- not against ID per se, but questioning its place in science classes. <<<<<<
Are you sure?
Then why didn't they put ID in a non-science course?
>>>>> Larry wrote, "the new members were supposed to try to save the school district's money by dropping the lawsuit immediately."
Where did you find any evidence of this? <<<<<<
A newspaper artice mentioned that the potential cost of the lawsuit was a big taxpayer concern. The election was close and this was probably a deciding factor.
>>>>>> whose conclusions were contradicted by at least one other lawyer <<<<<<
That lawyer was the defense lawyer and he had an ax to grind -- he wanted the case to be appealed.
>>>>> A more reasonable interpretation is that the community was torn by the lawsuit and upset at the actions of the standing school board. <<<<<<
And one of the big reasons for that was the potential cost of the lawsuit -- a real major concern for a small, non-rich school district (because of tightwad taxpayers, it is also a phony concern in big, rich school districts or states).
>>>>>> Larry wrote, "The judge's lousy opinion cost the district $1 million."
Only because the school board was stupid enough to adopt ID after having already made public statements that they wanted to get Jeebus back in school <<<<<<
And they had the right to make those public statements. In describing the Endorsement Test, Justice O'Connor said, "The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community." Concurring opinion in Lynch v. Donnelly
Because the new school board members made no attempt to try to avoid the attorney fee award by repealing the ID policy prior to judgment, they share whatever blame there is for the cost of the lawsuit.
>>>>> and then lying about the source of the money later <<<<<
The plaintiffs had no business asking about the source of the money -- the donors had the right to donate anonymously. And saying that donating the money for religious reasons was less permissible than donating the money for non-religious reasons is contrary to the Endorsement Test, which says that "the Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community."
>>>>>> No, as I pointed out the newly elected school board was not against ID per se, but were interesting in hearing the verdict to decide where it belonged in the curriculum. <<<<<
If the reason why the new board members did not repeal the ID policy prior to judgment was that they wanted to hear the verdict, then stop blaming the preceding board members for the cost of the lawsuit, doofus. Anyway, Judge Jones' opinion said nothing about where ID belonged in the curriculum and he implied that it did not belong anywhere.
>>>>>> They were leaning toward a social studies class I believe. <<<<<<
The new board made no attempt to put ID in a social studies course or other non-science course.
>>>>>> A school in Indiana at one time offered a course in comparative origin mythologies. I believe that ID was taught in that class. <<<<<<<
ID does not belong in such a class because ID is based on scientific facts and scientific reasoning. Just because ID has supernatural implications does not mean that ID itself is based on the supernatural. Evolution has supernatural implications -- many of the gaps in evolution theory can be explained only by invoking the supernatural.
Larry wrote, after quoting me, ">>>>>> They all ran on the same platform -- not against ID per se, but questioning its place in science classes. <<<<<<
Are you sure?
Then why didn't they put ID in a non-science course?"
To answer your first question: yes. Read the newspaper articles. He was speaking for the group.
I don't know that they didn't. If they didn't, perhaps it was because of the decision and it was decided that it was best to leave it out.
Larry wrote, quoting me quoting him, ">>>>> Larry wrote, "the new members were supposed to try to save the school district's money by dropping the lawsuit immediately."
[here he quoted me] Where did you find any evidence of this? <<<<<<
A newspaper artice mentioned that the potential cost of the lawsuit was a big taxpayer concern. The election was close and this was probably a deciding factor."
That's not evidence that there was the hope that the new board would save the money on the lawsuit. That money was probably already considered spent by most voters. You have not presented any evidence that votes thought that they could save money by voting out the old school board. Also, the new board did save money: they cut the cost in half.
Larry wrote, "That lawyer was the defense lawyer and he had an ax to grind -- he wanted the case to be appealed"
How does that make him wrong and his opinion meaningless? You are applying the appeal to authority here (a logical fallacy).
Larry wrote, "And they had the right to make those public statements."
Yes they did. But it also showed an unconstitutional motive for their plans. Not very smart. Of course, they weren't (or aren't). I also have the right to promote euthanasia of social deviants. However, if I kill someone, then those words become evidence of a motive, especially if that person may have been considered a social deviant.
Larry wrote, "The plaintiffs had no business asking about the source of the money -- the donors had the right to donate anonymously."
But they did ask the questions and either the questions were ruled acceptable (over an objection), or the lawyers did not object to them. I doubt that they had any bearing on the case, but they did weaken the credibility of the defendants.
Larry continued, "And saying that donating the money for religious reasons was less permissible than donating the money for non-religious reasons is contrary to the Endorsement Test, which says that "the Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community.""
Not the point here. I would tend to agree that it didn't matter, or at least that, in most cases, it shouldn't. In this case, it exposed a couple of the defendants as liars (also note that another woman referred to ID as 'intelligence (sic) design," showing her to have other motives in mind for the adoption of the policy).
Larry wrote, "If the reason why the new board members did not repeal the ID policy prior to judgment was that they wanted to hear the verdict, then stop blaming the preceding board members for the cost of the lawsuit, doofus"
Why wouldn't the old school board be to blame? It's clear that they were. They were the ones on trial. You have presented zero conclusive evidence that the award of attorney fees could have been avoided -- a number of unlikely suppositions, yes, but nothing conclusive (note that all of your claims are admittedly unlikely to have been correct). Present some real evidence if you are going to make this claim. Nothing of what you have said to date qualifies. You have a number of maybes and 'well, this one lawyer thinks so.' That's not evidence.
Larry wrote, "Evolution has supernatural implications -- many of the gaps in evolution theory can be explained only by invoking the supernatural."
Only by using the logical fallacy known as god of the gaps, or the argument from ignorance. The proper attitude of science is 'we need to study this further.' It is not scientific (or logical) to see, 'we don't know how this happens so we're going to say goddidit' or 'the intelligentdesignerdidit.'
Anonymous said,
>>>>>He was speaking for the group. <<<<<<
He couldn't speak for the group unless he had a written statement signed by members of the group.
>>>>> If they didn't, perhaps it was because of the decision and it was decided that it was best to leave it out. <<<<<<
So the decision did not clearly answer the question of whether ID could be taught in a social studies course. So what did the school board accomplish by waiting for the decision and spending $1 million? Nothing!
>>>>>> You have not presented any evidence that votes thought that they could save money by voting out the old school board <<<<<<
And you have not presented any evidence to the contrary.
>>>>> Also, the new board did save money: they cut the cost in half. <<<<<<
But they didn't try to save it all.
Also, if the new school board members wanted to hear what Judge Jones had to say, why didn't they appeal the decision so they could hear what appeals judges had to say? An appeal would have been very cheap compared to the cost of the original lawsuit. And contrary to what a lot of Darwinists believe, the Kitzmiller lawsuit was not a slam-dunk shoo-in. The only thing that the lawsuit challenged was just a one-minute evolution disclaimer statement -- only Darwinism was actually taught. Another decision against an evolution disclaimer, Freiler v. Tangipahoa Parish, came very close to being reversed -- the case came within one vote of en banc (full court) appeals court review and within one vote of Supreme Court review -- and the judges (justices) opposed to denial of en banc review and Supreme Court review issued long dissenting opinions (denial of certiorari by the Supreme Court is normally without comment). Also, in another decision against an evolution disclaimer, Selman v. Cobb County, the appeals court judges indicated that they were leaning towards reversal but they vacated and remanded the decision because of missing evidence and the case was finally settled out of court.
>>>>>Larry wrote, "That lawyer was the defense lawyer and he had an ax to grind -- he wanted the case to be appealed"
How does that make him wrong and his opinion meaningless? <<<<<<<<
It makes his opinion questionable, at least.
I know he said that he wanted the case to appealed -- I don't remember if he expressed any opinion on whether or not the board might avoid an attorney fee award by repealing the ID policy prior to judgment. Did he have a written report about the matter? The other attorney prepared a written report.
>>>>>>Larry wrote, "And they had the right to make those public statements."
Yes they did. But it also showed an unconstitutional motive for their plans. <<<<<<
It was an unconstitutional motive under the Lemon Test but not under the Endorsement Test. The Lemon Test has fallen into disfavor in the last several years and federal courts are no longer required to use it.
>>>>> Larry wrote, "The plaintiffs had no business asking about the source of the money -- the donors had the right to donate anonymously."
But they did ask the questions and either the questions were ruled acceptable (over an objection), <<<<<
I don't know if there was an objection or not.
>>>>> I doubt that they had any bearing on the case, <<<<<<
Well, according to you, collecting the book funds at church was evidence of unconstitutional religious motivation.
>>>>> In this case, it exposed a couple of the defendants as liars <<<<<<
And they lied in answering questions that they should not have been asked in the first place. And many of their "lies" were not lies but were half-truths.
>>>>>> You have presented zero conclusive evidence that the award of attorney fees could have been avoided <<<<<<
Wrong. My original post here presents the Buckhannon case, a situation exactly like the Kitzmiller case.
>>>>>> Only by using the logical fallacy known as god of the gaps, or the argument from ignorance. The proper attitude of science is 'we need to study this further.' <<<<<<
I suspect that many Darwinists really believe that many of the questions about evolution will never be answered.
Larry wrote, "Anonymous said,
>>>>>He was speaking for the group. <<<<<<
He couldn't speak for the group unless he had a written statement signed by members of the group."
Yes he could -- they ran on the same platform as a group.
Larry wrote, ">>>>>> You have not presented any evidence that votes thought that they could save money by voting out the old school board <<<<<<
And you have not presented any evidence to the contrary."
The case itself and what happened is my evidence. You are the one who needs evidence to say that there was another path. You have failed to do so.
Larry wrote, ">>>>> Also, the new board did save money: they cut the cost in half. <<<<<<
But they didn't try to save it all."
They knew it was impossible.
Larry wrote, "why didn't they appeal the decision so they could hear what appeals judges had to say? An appeal would have been very cheap compared to the cost of the original lawsuit."
They ran on the platform of mending fences. They were trying to heal the community. They were not going to appeal -- it was part of their campaign agenda.
Larry wrote, "Another decision against an evolution disclaimer, Freiler v. Tangipahoa Parish, came very close to being reversed -- the case came within one vote of en banc (full court) appeals court review and within one vote of Supreme Court review"
It did not come close to being reversed. It came close to being heard by the full appeals court and to being heard by the full SCOTUS. The hearing itself guaranteed nothing.
Larry wrote, "It makes his opinion questionable, at least."
You are still applying a logical fallacy.
Larry wrote, "I don't remember if he expressed any opinion on whether or not the board might avoid an attorney fee award by repealing the ID policy prior to judgment."
Yes he did -- he said it wasn't possible.
Larry wrote, "Did he have a written report about the matter? The other attorney prepared a written report."
No didn't need one. He already knew the answer.
Larry wrote, "I don't know if there was an objection or not."
Then why mention it? The questions (and answers) were made and entered into evidence. If the defense attorneys didn't object, then the questions were fair game. If they did object and it was overruled, the questions were fair game. What the answers revealed is that the defendants were liars and that they lied to cover up religious connections (that may or may not have been relevant).
Larry wrote, "My original post here presents the Buckhannon case, a situation exactly like the Kitzmiller case."
You have failed to show that that case is in any way relevant. Was it even a constitutional case? If the case set the precedent, then why hasn't it been applied elsewhere since then? Wouldn't lawyers like the Thomas More Center and other religious groups want to use this to avoid paying large amounts of money to ACLU lawyers? I would think so.
Larry wrote, "I suspect that many Darwinists really believe that many of the questions about evolution will never be answered."
I'm not sure what you're trying to imply. This sounds like how science works -- solving one riddle, but showing other unanswered questions. Sorry it's not like god giving rules on the mountaintop, but it's more intellectually stimulating!
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