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have rendered the case moot---that is, the case would probably have been decided anyway even if the School Board had withdrawn its policy.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But let's say they had withdrawn the policy.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!"