A “Little Knowledge” About Mootness


Over at the Discovery [sic] Institute's blog, law student Michael Francisco is taking another stab at showing that the Dover Area School Board did a nasty thing to keep the Intelligent Design curriculum in place long enough for the Kitzmiller case to be decided. The School Board, in Francisco's opinion, ought to have revoked that policy, so as to prevent the decision from being written, thereby sparing the Discovery Institute and the ID movement a great deal of embarrassment saving the taxpayers from having to pay the attorney's fees once the School Board lost the case. Several folks, including myself, have pointed out that the school board's withdrawing its policy would not have rendered the case moot---that is, the case would probably have been decided anyway even if the School Board had withdrawn its policy. Mr. Francisco tries again to argue that this isn't so, and that the School Board did a bad thing to keep the policy in place. Below the fold I'll respond to his arguments.

First of all, this is all a rather silly argument to have. The fact is, the school board was entirely within its rights to keep the policy in place pending a final judgment in the case. Their failure to do so is not a violation of any law, or unethical in any way. If anyone acted unethically, it was the original school board, which decided to violate the First Amendment by teaching religion in a public school classroom---the sort of thing that the Discovery [sic] Institute advocates. Since the case was not moot when Judge Jones decided it, the question is simply not raised. Whether the school board ought to have tried to render the case moot is a pretty abstruse question; statements such as Mr. Francisco's, that "a judge, even on the appellate level, is required to raise the mootness issue sua sponte," are silly because the case was not moot, for whatever reason, and it certainly was not Jones' place to counsel the defendants to make it moot.

But let's say they had withdrawn the policy. Would that have rendered the case moot? No. "Mootness" refers to the fact that federal courts can only hear cases that are live controversies between two parties---they must have some genuine argument. Courts can't just opine on whatever they want. So if, say, a criminal defendant dies of old age before the court decides the case, then there's probably no case at issue anymore and the court will probably declare the case moot and not decide it.

Once an injury has occurred, however, and a person sues for damages, a case can just about never be made moot. How do you moot an auto accident case? You can't go back and undo the accident. (You might settle out of court with the other party, but that's not mootness.) In Kitzmiller, the plaintiffs were not only seeking prospective injunctive relief to prevent future injury---they were also seeking damages for past injury. Remember, the complaint sought nominal damages for violations of the First Amendment. Those violations had occurred. So that part of the case would not have been rendered moot by any promise not to do it again, no matter how sincere. That part of the case looked backward at a completed injury. A promise not to commit future injury would not have mooted the case as far as past injury is concerned. And, of course, once the nominal damages had been awarded, the ACLU would have been entitled to their attorney's fees. So even withdrawing the ID policy would not have saved the taxpayers much money.

What about the forward looking part of the case---that for prospective injunctive relief---would the case have been rendered moot by an elimination of the policy? There are major exceptions to the mootness doctrine, and one of the most important is the "voluntary cessation" rule. That rule says that if the only reason the case went moot is because the (alleged) bad guy decided to stop doing the (allegedly) bad thing, then the case is not moot. If you go to court alleging that your neighbor keeps flashing himself at your kids, then your case is not moot just because the neighbor stops flashing himself. Why? Because he could start up again any time he wants to. A defendant shouldn't be allowed to escape a judgment by taking action to moot his case, only to be free to commit the same injury all over again. See generally United States v. W.T. Grant Co., 345 U.S. 629 (1953); United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203 (1968) (case is not moot where defendant is "free to return to his old ways.")

That rule seems pretty clearly applicable in the Dover case. If the school board had withdrawn its Intelligent Design policy, they would have been "free to return to their old ways." Voluntary cessation of allegedly wrongful conduct should not moot a case. Easy as that. Now, it is true that "if the defendant can demonstrate that there is no reasonable expectation that the wrong will be repeated," then perhaps voluntary cessation might moot a case. W.T. Grant, 345 U.S. at 633. But that is a "heavy" burden for a defendant to show. Id.

Now, Francisco (like every dutiful student) has a copy of Erwin Chemerinsky's fine textbook on federal jurisdiction, and of course it correctly states that a legislative change is usually enough to render a case moot---that is, if the legislative change is not likely to be reversed later. The question all comes down to whether the legislature is likely to go back to doing the wrong thing again. As Chemerinsky says, "cases will not be dismissed as moot if the Court believes that there is a likelihood of reenactment of a substantially similar law if the lawsuit is dismissed." Id. at 139. And this is a judgment call. Of course, I'm sure that Mr. Francisco knows that whenever something is a "judgment call," that means it's pretty much up to the district court judge to decide---which is as it should be, since the district court judge is in the best position to make such judgments. He knows the facts and the parties best.

How would Judge Jones have made such a determination? Well, he might have looked at the basic honesty of the school board in the past*, the political pressures they were under, and the character of the proponents of the ID policy. In addition, he might note that the school board elections were very close, and the community strongly divided; the possibility of the old bozos being reelected was real. To say the least, Judge Jones would have been warranted in concluding that the school board or its successors in office might re-enact the policy or a similar one in the future. That decision would have been entirely his to make.

So in the end, here's what we have: Mr. Francisco wishes the School Board had withdrawn its policy because he thinks it would have saved the taxpayers money. But it wouldn't have because the case sought nominal damages for past injuries, plus attorneys fees, and there was no way to moot that, even if the School Board promised never to do it again. Further, it's all hypothetical anyway because the school board was entirely within its rights to decide not to moot its own case, and of course until a case is possibly moot, it is not up to the judge to inquire into the question. Certainly no court can say to the defendant, "Hey, why don't you stop doing this unconstitutional thing, and then we can render the case moot and go home and make the Discovery [sic] Institute folks happy!"

A final note. Mr. Francisco, as a law student, does what a lot of law students do, and flashes his cufflinks at us with a lot of commonplace learning. He says, for instance, that my citation to Ginsburg's opinion in Padilla v. Hanft, 126 S.Ct. 1649 (2006) (mem.), was wrong, because, in Padilla, the "majority actually rejected the argument that voluntary cessation should prevent mootness." Well, no. They simply denied certiorari, which the Court has absolute discretion to do for any reason or no reason, and three justices, concurring in the denial of cert., announced that they were not deciding the mootness issue. See id. at 1650 ("Whatever the ultimate merits of the parties' mootness arguments....") A denial of cert. sets no precedent, and a concurrence in denial of cert. by a plurality is about the least precedential opinion there is. I cited Ginsburg's opinion simply as the most recent example of a very well-settled doctrine. If Mr. Francisco thinks that the Court did away with the voluntary cessation exception to the mootness doctrine, and that this undermines my citation to Ginsburg, he has a little more studying to do.

*--Homer: "In case you can't tell, I'm being sarcastic."
Marge: "Well, duh!"


It seems to me that Phil Johnson has enough experience with the law to review Mr. Francisco’s article. Do you think the DI ran it by Johnson for his opinion of a law student’s blatherings?

A fine rebuttal, and one I’m sure that Francisco will bravely ignore. On a related topic, at about the same time the Thomas More Law Center was rushing towards defeat in Dover, they were slapped down by the Tenth Circuit. The TMLC understood the mootness issue better than Francisco-they relied on the fact that a claim for damages cannot be mooted. Here is a slightly edited version of the very brief analysis I gave Larry Fafarman when he was pressing his mootness analysis, similar to and just as ignorant as Franciso’s:

In O’Connor v. Washburn University, 416 F.3d 1216 (10th Cir. 2005), the Thomas More Law Center, which defended the board in Kitzmiller, argued that a sculpture displayed on the university grounds was “an unconstitutional endorsement of an anti-Catholic message.” (The sculpture is essentially an unflattering image of a fat bishop.) That’s right - the TMLC, ardent foe of the Establishment Clause (“The Founders of this country would be astonished at the thought that this simple curriculum change ‘established religion’ in violation of the Constitution that they drafted.”) argued that it should be used to censor an art display that they found offensive. Hypocritical enough, as far as I’m concerned.

But it is particularly relevant here, because the TMLC’s only successful argument was that their case could not be mooted in light of their claim for nominal damages. The statue was removed before the case finished, so their claims for declaratory and injunctive relief were mooted. But because the Thomas More center had a cause of action for nominal damages, the court proceeded to address the case on its merits. As the court held, “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. Unlike the claims for injunctive and declaratory relief, this claim is not mooted by the removal of the statue from campus. This court therefore has jurisdiction to consider the nominal damages claim.” (citations omitted)

The Tenth Circuit quite appropriately found that “the statue’s placement on Washburn’s campus under these circumstances does not constitute an unconstitutional endorsement of an anti-Catholic message,” and rejected the frivolous Establishment Clause claim. The Thomas More center unsurprisingly doesn’t seem to have any information about the case on its website, but you can read it at http://www.kscourts.org/ca10/cases/[…]/04-3103.htm. It includes a picture of the sculpture, which is interesting and frankly a little bit funny.

I can understand why Francisco would post such an egregiously wrong analysis. Law students love to have relevant commentary, and it’s very easy for a student to assume he understands the law more fully than he does. But he clearly doesn’t understand mootness very well–aside from the judgment call of the voluntary cessation analysis, which I doubt any objective observer would make in the way Francisco does, the damages issue is quite plain and simple black-letter law. A cause of action for even nominal damages cannot be so easily mooted.

I’m quite curious to see if Francisco will acknowledge this. He has easy access to a PR trumpet through the DI, which must be fun for a student. Does he have the character to use that access to acknowledge his own mistake? I think the smart money says no; his association with the DI testifies as to the depth of his character.

Funny that in the notes from the first meeting of the newly elected schoolboard, the question is raised as to whether or not the board ought to repeal the policy. The funny part about it, and what Francisco and the other airsacs at the DiscoI are ignoring, is that their counsel advised them along the same lines as the above. The new board president Ms. Reinking noted that legal counsel advised that the trial was over, and that changing the policy would have no effect on the ruling, since the trial had already concluded and they were awaiting a decision. Quite far from unethical for them to accept legal counsel. See section two, bullet three, of the minutes.

Silly rabbits.

I have little doubt that Francisco understands the legal issue of mootness very well indeed. But recall that he’s speaking for the DI, and following DI precedent. And that precedent is to rely on the ignorance of their target audience to make invalid claims (scientific, legal, whatever it takes) which are difficult and boring to refute, and whose refutations wouldn’t reach the target audience anyway, even if that audience were interested.

I wonder why the issue is being argued by a law student? This is the sort of issue that makes for a good research paper, but if the arguments are to be in made public and critiqued by other attorneys, Francisco and the DI would want to put their best foot forward. The DI seems blessed with an abundance of legal minds, why aren’t these arguments peer reviewed through appropriate channels before seeing the light of day?

Delta Pi Gamma (Scientia et Fermentum)

Didn’t you make this same rebuttal to the same arguments just last month?

Francisco, you DOLT.

I think the term you are looking for is “Best fool forward.” They know this argument is thin, so it can’t be seen to come from one of their major legal people. Remember, while they are not good scientists or legal scholars, they are BRILLIANT PR people.

When you learn you are wrong, you admit to your mistake and do your best to correct your error. Especially when it won’t let you off the hook. Continuing with a stupid idea when you’ve learned it’s a stupid idea makes you look like even more of a fool than before.

I wonder why the issue is being argued by a law student? This is the sort of issue that makes for a good research paper, but if the arguments are to be in made public and critiqued by other attorneys, Francisco and the DI would want to put their best foot forward. The DI seems blessed with an abundance of legal minds, why aren’t these arguments peer reviewed through appropriate channels before seeing the light of day?

Maybe Francisco is auditioning for the role of the next ID martyr. Maybe he thinks his ignorant public rantings about legal issues will be held against his standing in law school, and then he can take his rightful place as the next Bryan Leonard/Richard von Sternberg.

When you learn you are wrong, you admit to your mistake and do your best to correct your error. Especially when it won’t let you off the hook. Continuing with a stupid idea when you’ve learned it’s a stupid idea makes you look like even more of a fool than before.

Let’s be at least somewhat straightforward about this. Francisco knows his argument is legally empty, but making empty legal arguments is NOT a mistake. It’s a very carefully presented PR tactic. So long as people who are ignorant of the law but feel their faith is being threatened are satisfied by these claims, they are not stupid. They are deliberate and effective.

Consider our ex-poster Larry. He has made this same false claim at least dozens of times, been corrected at great length every time, and hasn’t even seen fit to change the *wording* of hs objection. What matters is, the target audience WANTS this to be true. Telling people what they want to hear as part of a campaign to solicit their political and financial support isn’t either foolish or wrong. Larry may be considered a typical target audience. The chances of Larry saying “Wait a minute, Francisco isn’t telling me the truth” are zero.

Phillip Johnson – the IDist, not the architect (different spelling) – taught criminal procedure at Berkeley. He might be able to review Francisco’s article, but he’s not an expert in that area of the law, either.

The fact that they are arguing about technicalities–the judge didn’t have to rule, the case was moot, blah blah blah–rather than the actual content of the judgement is a good indicator of just how rock-solid the judgement was. Let them wring their hands over this: they know as well as we do just how badly their deception was exposed in that courtroom.

Why do you write “Discovery [sic] Institute” ? Just curious.

Idle research–and only about ninety seconds of it, to boot–produced another strong case. I posted this just now at Dispatches:

“I agree that Sandefur’s response is thorough and correct. I think he’s wasting his time, though, because the DI flacks will never deal squarely with his arguments - the repeatability analysis involves, as Sandefur notes, a judgment call. And Francisco will always make that judgment call in such a way as to defend the party line, regardless of the objective evidence.

I prefer to take a simpler, more bottom-line analysis: a case involving a claim for damages, as Kitzmiller did, cannot be mooted by the defendant’s change in behavior. (There is an irrelevant exception in class action cases.)

This is well settled precedent everywhere, including the Third Circuit: “Although Donovan’s claim for declaratory and injunctive relief is moot, her damages and attorney’s fees claims continue to present a live controversy. Boag v. MacDougall, 454 U.S. 364 (1982) (holding that the transfer to another prison did not moot a claim for damages arising from placement in solitary confinement); Jersey Cent. Power & Light Co. v. New Jersey, 772 F.2d 35, 41 (3d Cir.1985) (“[T]he availability of damages or other monetary relief almost always avoids mootness ···· Damages should be denied on the merits, not on the grounds of mootness.”). We shall therefore review the district court’s determination, bound up in its October 10, 2002 final order, that Donovan is not entitled to money damages and attorney’s fees.” Donovan ex rel. Donovan v. Punxsutawney Area School Bd., 336 F.3d 211, 218 (3rd Cir. 2003).

Donovan was, of course, binding on Judge Jones, as were the various cases that Donovan relied upon. So even if the board had rescinded its policy, it would have been required by binding precedential authority to review the alleged EC violation and would have awarded nominal damages to the plaintiffs. That would have made them prevailing parties under 42 USC 1988, meaning that they would still have been awarded attorneys’ fees.”

I forgot to note in that post, though, that Tim did raise the damages issue. But I think that when addressing such an intellectually dishonest argument, it’s best to really stress–almost exclusively, even–the simplest response. Francisco, Larry, and the other creationist apologists will always respond to the repeatability analysis by arguing that “of course the policy wasn’t likely to be repeated.” I think the damages issue limits their ability to play slippery games with the judgment call necessary in the repeatability argument.

In any event, as I’ve said, Tim’s analysis is excellent. It’s a shame the DI is, like UD, hostile to comments; I’m impatient to see whether they will acknowledge their manifold errors.

Longtime Lurker,

I presume it’s because the ‘Discovery’ Institute dedicates its considerable resources to suppressing knowledge, not discovering it.

Didn’t you make this same rebuttal to the same arguments just last month?

It is the eternal creationist strategy: If black is not white, then just say black is white over and over and over until it is. Black may not ever actually become equal to white, but at least by repeating over and over that it is, you’ll create a “controversy”. And if something is “controversial”, then of course as we all know, that automatically means that both sides of the controversy are equally valid.

An interesting side effect of this strategy is that since creationism persists with its errors forever rather than correcting them, creationism is, abeit slowly, developing entire different systems of philosophy, logic and law from the rest of the world, one “black is white” mantra at a time. There is the “real” definition of science and then the creationist/Behe definition of science. There is the “real” second law of thermodynamics and then there is the creationist second law of thermodynamics. There is the “real” mootness doctrine, and then there is the creationist mootness doctrine…

And of course we know, in every case, which of the two alternatives is the more important. The secular theory of the mootness doctrine is based on nothing more solid than United States case law. But their theory of what the mootness doctrine is is founded on something much stronger: faith.

Francisco wrote: “Moreover, it is only “fair” to give a defendant legislative body—in this case a school board representing a very small rural community—the opportunity to modify their behavior by choice if they are making the changes in good faith. Otherwise, huge amounts of taxpayer money can go to drain the public coffers. This opportunity would be “fair” for the citizens of Dover. But the Dover CARES school board chose to pass it up.”

But, it seems to me that it was clear from the trial record that the *original* school board was *not* acting in good faith, having ignored their own legal counsel, and acting duplicitously wrt to obtaining the “Panda” books in the first place. So, even if Francisco’s statement were true, it wouldn’t apply in this case. The Dover board, however constituted, had lost the presumption of “good faith”.

I also note that he retreats here from “legal”, to the notion of “fair”. When your side has lost on “legal” grounds, it is much easier to argue that the judge wasn’t being “fair”, even though he may have been following the law to the letter.

Ed Darrell Wrote:

Phillip Johnson — the IDist, not the architect (different spelling) — taught criminal procedure at Berkeley. He might be able to review Francisco’s article, but he’s not an expert in that area of the law, either.

He’s not an expert in biology either, but that didn’t stop him from claiming to make the most significant discovery since Darwin. He even added that sometimes “non-experts” have better ideas because experts can be biased.

Johnson’s comment provides an interesting contrast with that of Michael Behe. He is now qualifying his acceptance of common descent with the caveat that some who deny it (or pretend to deny it) understand it better than he does.

I guess “non-experts” provide a better perspective only if it defends the ID strategy.

Perhaps we should follow Steven Colbert’s lead and a new word is in order:


The ID’ers will continue to find fault with methodoligical naturalism. They ,like other creationists. are block heads. Their brain shield of faith committs them to fallacies.

Their brain shield of faith committs them to fallacies.

Is that shield constructed from tinfoil?

The ID’ers will continue to find fault with methodoligical naturalism. They ,like other creationists. are block heads. Their brain shield of faith committs them to fallacies.

Wamba ,yes ,and we tear it up![I consider all theists as creationists in that they set up a second category ,which is question begging as Malcolm Diamond in his book on philoso phy of religion shows.]

Colin, thank you for your post on the Washburn U case – important stuff.

Someone asked why DI’s various “authoritative” legal minds are not out front on this issue instead of a student.

Who would those minds be? Francis Beckwith is laying low, and he’s not an attorney. Mr. DeWolf might have been chastened by Dr. Beckwith’s experience – is DeWolf tenured at Gonzaga yet?

In the real world, real lawyers often pay consequences for crank or just bad legal advice. Perhaps they’ve been watching, and they think better of offering crank advice now, especially since the loss in court was so thorough.

Evolution is important because in the real world there are real consequences, in health, in disease, in environmental effects. The law dealing with teaching evolution also should have concomitant, real world effects – and some of them are now appearing.

Someone asked why DI’s various “authoritative” legal minds are not out front on this issue instead of a student.

Because after Dover and Ohio, they don’t dare show their faces in public.

I can’t wait for the Kansas Kooks to get dragged in front of a judge. That one will be priceless. I wonder if DI will even bother to try to defend them, or just decamp in the middle of the night and leave them to their fate.

About this Entry

This page contains a single entry by Timothy Sandefur published on May 11, 2006 8:47 AM.

More Dembski delusions was the previous entry in this blog.

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