Posted on 11/17/2005 10:00:15 AM PST by Right Wing Professor
Monday's attempt by outgoing Dover Area School Board member David Napierskie to save the district from legal fees is not as simple as it sounded, said the district's attorney Richard Thompson.
Napierskie asked the board to revoke the curriculum change that includes intelligent design, agree not to add it again and ask their legal representation, Thomas More Law Center, to file a motion to dismiss the lawsuit against them and pay $1 in damages.
Napierskie said he believes the action would make the case moot and prevent the district from paying legal fees.
"It's not as simple as let's dismiss the case and walk away with paying $1," said Thompson, who spoke with Napierskie prior to his motion. "By merely dismissing the case, even if that were agreed upon, would not eliminate the plaintiffs' ability to ask for reasonable attorney fees."
Plaintiffs' attorneys declined to comment.
Kevin Alan Lewis, assistant professor of theology and law at the Talbot School of Theology, Biola University in California, said the defense could file a motion to dismiss on the basis that there is no controversy because the new board doesn't favor the curriculum.
But despite the implications of the election, the judge could say the policy, one which can change often, falls under the possibility of escaping review and not accept a motion to dismiss - much like the nine-month constraint surrounding abortion cases, he said.
Judge John E. Jones III said the election results don't figure into his ruling.
Thompson said that the judge is making his decision based on the board's actions from last year when the plaintiffs allege a constitutional violation and that needs to happen.
"The case was tried with the assumption that regardless of who won or lost an appellate court and maybe ultimately the (U.S.) Supreme Court would take a look at it and change the law," Thompson said. "If they don't appeal, what they've done is short-circuit the entire legal strategy that was put in place by the Thomas More Law Center."
But the new board can make its own decisions, he said. Napierskie said he was looking out for the taxpayers and started thinking about the possibilities the day after the election.
"I think (Thompson's) agenda is a little different from the way I'm looking at it myself," Napierskie said.
Thompson said he believed Napierskie was pushed by the pro-intelligent-design Discovery Institute.
The defense and institute have been at odds since before the trial began in Harrisburg. The Discovery Institute opposes teaching intelligent design in the classroom. The defense said the institute victimized its clients.
No one from the Discovery Institute could be reached for comment.
Napierskie said he talked to representatives from the institute but said they didn't influence his decision. He considered other sources, such as advice from a Carlisle attorney Andrew Shaw.
In a legal analysis, which Napierskie said was prepared for him by Shaw, the attorney said he saw a substantial risk that the judge would rule against the board and said the board could carry on or try to end the case prior to the ruling.
"The law is clear that a court cannot make a decision on a case that is moot," Shaw's document read. "If the court cannot make a decision, the court also cannot award attorney fees."
Napierskie said he was surprised board members didn't second his motion because they won't be around to fight the suit, and the new board isn't interested in having intelligent design in science class. He also didn't believe the new board would continue with Thompson.
It doesn't look like incoming board members will adopt Napierskie's idea.
Several incoming board members, including Patricia Dapp, Terry Emig and Judy McIlvaine, said they want to hear what the judge has to say in the case. Some believe it will help bring closure and healing to the community.
The news article about Napierski's attempt is here.
Ping!
DI supported ID in the classroom, before they opposed it.
wooooooooo
seems like someone is trying to protect his war-chest and keep the "controversy" alive for a later rematch
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With that bunch, you definitely watch what they do rather than listen to what they say. They're trying to abort a whuppin'.
This won't work.
The case is not moot, even if the new Board will change the policy, because the next election could result in a change back. The only way the abandonment of the ID policy could be made permanent would be if the Board consented to a court order to that effect-- but that would require that the court take action, so the court could indeed award the plaintiffs their legal fees.
Sounds like the Discovery Institute is awaiting further instructions from the "Designer."
check to see how thread evolves
Thanks for the ping!
I thought Thomas More promised they would shield any school board that ventured into ID.
Must be winter of dissemblement in More Land.
They promised they would do it for free. They didn't promise to pay the other side's costs.
When you think about it, Thomas More has been a vehicle for pumping Dover taxpayer dollars into the ACLU's coffers.
I think they implied they would win. At any rate, this has been a bad season for them.
Oh yeah! They lured the school board into this mess by promising to defend them for free. Now, it looks like the school board may end up with a titanic legal bill. How much will a six-week-long trial in a federal court cost, with not only legal fees (a few thousand per day, per lawyer), but also lots of witness fees, travel costs, and daily transcripts? And don't forget, the lawyers are still working, submitting legal briefs, proposed findings of fact, etc. Could be half a million, before it's all over. (Give or take a few hundred thousand.)
I wouldn't be surprised if the school board is considering a suit against their lawyers for sucking them into this mess. That won't get very far, probably, but it's something to think about.
I think perhaps the school board members will face a class action suit by the taxpayers, and may lose on the basis of their perjury. I don't think public officials are immune from the results of actions taken in bad faith. So to speak.
I think you underestimate the cupidity of laywers. Estimates I've seen for this case have been a kewl $1.7 m.
Didn't the stickers end up in the school books and in front of students? Or did the case short circuit actually exposing students to it?
If students saw it, then damage was done and someone must pay, even if the board changes the policy.
And what about the disposition of all those creationist textbooks in the library?
I guess this means there will be no appeal if the judge rules against the board.
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