R. Kelly Hamilton, meet George Orwell

As I noted last week, a federal judge ruled on several motions in the civil suit brought by the Dennis family against Freshwater. Recall that the suit originally named the school district and several administrators as defendants in addition to Freshwater, but the district’s insurance company settled for all the district defendants, leaving only Freshwater. For the most part the judge’s recent rulings went against Freshwater, as did a motion to compel Freshwater to surrender more documents and be deposed again. Watching the spin the Freshwater camp is putting on those rulings has been a lesson in how to violate the 9th commandment.

Much more below the fold.

The federal judge ruled (pdf) on motions for partial summary judgments made by both the Dennis family and Freshwater. The Dennis family requested summary judgment on their battery claim and on both of Freshwater’s counterclaims, defamation and intentional infliction of emotional distress. They also moved for partial summary judgment on the First Amendment Establishment Clause claim in their original complaint. Freshwater entered a motion for summary judgment to dismiss the battery charge.

The family’s motions for partial summary judgments

As noted, the family moved to dismiss Freshwater’s defamation claim and his claim of intentional infliction of emotional distress, both made in his counterclaim (and supporting material) to the family’s original suit.

In his defamation charge Freshwater cited 42 instances in which he claimed to have been defamed. The judge disallowed every one of the 42 on one or another ground:

Plaintiffs argue that they are entitled to summary judgment on each of these allegedly defamatory statements because (1) many of the statements were not made by Plaintiffs, (2) some of the statements are entitled to an absolute privilege, (3) some of the statements are entitled to a qualified privilege, and (4) Freshwater has introduced no evidence that the remaining statements were made with actual malice, which is required because he is a limited purpose public figure. This Court agrees.

In other words, the judge threw out all of Freshwater’s allegations of defamation. I’m particularly entranced by Freshwater (or actually Hamilton) accusing the family of defamation, citing in support statements made by someone else, including statements contained in the Board of Education’s resolution of intent to terminate Freshwater!

The judge also tossed Freshwater’s ‘intentional infliction of emotional distress’ claim, saying

… no reasonable jury could return a verdict in Freshwater’s favor on this claim.

The family also requested summary judgment on the narrow issue of an Establishment Clause violation related to the posting of four copies of the Ten Commandments and the (FCA) Bibles in Freshwater’s classroom. In this instance the judge denied the motion, saying

Freshwater contends that there are genuine issues of material fact as to whether he violated the Establishment Clause, and therefore, Plaintiffs’ request for partial summary judgment on these claims should be denied. This Court agrees.

After consideration of the evidence properly before it, the Court determines that there are genuine issues of material fact as to whether the box of Bibles in the corner of Freshwater’s classroom, the Bible on his desk, the inclusion of the Ten Commandments in the classroom window, and the inclusion of the Ten Commandments on a classroom bulletin board fail any prong of the Lemon test.

In opposing the motion for summary judgment, Freshwater claimed a secular purpose for all those instances, and the judge concluded that

The Court finds that, when viewing the evidence in the light most favorable to Freshwater, drawing all reasonable inferences in his favor, and making no credibility determinations, the Court cannot say that no reasonable jury could return a verdict in his favor. The Court, therefore, will allow a jury to determine whether Freshwater’s stated secular purposes are a sham or are sincere.

Based on the foregoing analysis, the Court concludes that there are material issues of fact as to whether the Bibles and Ten Commandment postings reflect a secular purpose, have a primary effect that neither advances nor inhibits religion, and avoid excessive government entanglement with religion. Accordingly, the Court DENIES Plaintiffs’ Motion for Summary Judgment on Plaintiffs’ violation of the Establishment Clause claims for relief. (bolding original)

Freshwater’s motion

In his motion Freshwater requested summary judgment dismissing the battery charge. The judge declined to grant Freshwater’s motion, saying

d. Conclusion of Freshwater’s request for summary judgment on plaintiffs’ battery claim Viewing the evidence in the light most favorable to Plaintiffs, and making all reasonable inferences in their favor, the Court concludes that there are genuine issues of material fact as to whether ZD [Zachary Dennis] possessed the capacity to consent, whether he did consent, whether Freshwater exceeded the scope of any given consent, and whether the consent (if given) was negated by duress; therefore, the Court DENIES Freshwater’s Motion for Partial Summary Judgment in this regard. The Court, however, GRANTS Freshwater’s motion as it relates to Plaintiffs’ defense of negation of ZD’s consent because of mistake or misrepresentation.

Finally, the court let stand part of the issue concerning Zachary’s consent to the Tesla coil procedure, and granted summary judgment throwing out part:

Consequently, the Court concludes that Plaintiff’s have raised a genuine issue of material fact as to whether ZD’s consent, if indeed there was such consent, was negated by duress. However, Plaintiffs have failed to raise a genuine issue of material fact as to whether the alleged consent was negated by mistake or misrepresentation.

So the question of whether Zachary at age 13 could legally consent to the procedure and whether Freshwater used duress to elicit that consent, thereby negating it, is still open and will be determined at trial.

To summarize: Freshwater’s counterclaim was eviscerated–the family’s request for summary dismissal of the two charges Freshwater made in his counterclaim was granted; both were summarily tossed out. In addition, the judge declined to grant Freshwater’s request for summary judgment on the battery charge, saying it should be left to the jury. Similarly, the judge declined to grant the family’s request for summary judgment on the battery charge. Finally, the judge declined to render summary judgment on the Establishment Clause issue, leaving that for the jury. On any reasonable scoring standard, Freshwater lost big in this encounter.

Dennis family’s motion to compel

In addition to the motions for summary judgment, the Dennis family filed a motion to compel Freshwater to turn over to their attorney various documents that Freshwater used and/or referred to in his testimony in the administrative hearing that should have been turned over in discovery for the federal suit. Further, they requested that Freshwater be subject to deposition on those documents. Freshwater opposed that request, saying that the subject documents were part of trial preparation materials and hence are not subject to discovery. Further, he argued that any further deposition should be limited to any materials produced and should last no longer than two hours. The family requested up to three hours.

The judge ruled against Freshwater, ordering him to turn over the materials within seven days of April 12, 2010. Further, the judge declined to place any time limit on the deposition, saying only that

The Court has no reason to believe that plaintiffs’ counsel will abuse the rules governing discovery or subject defendant Freshwater to an unnecessarily extended continued deposition. The Court will therefore not impose at this juncture an arbitrary time limit for the continued deposition.

Dismissal of a defendant

One of the peculiarities of Freshwater’s federal suit against the district is that he named the Board of Education’s attorney, David Millstone, as a defendant. As described in the link, Millstone moved to be dropped as a defendant, and the court has recently agreed, removing Millstone as a defendant.


To summarize, Freshwater lost on essentially every substantive point in the pretrial motions, and further lost in his opposition to producing further documents in discovery and will be deposed again. The main allegations in the Dennis family’s suit remain to be decided in the trial, and none of Freshwater’s counterclaims remain. Finally, a defendant was removed from Freshwater’s federal suit by the Court.

Watching the Spin

R. Kelly Hamilton, Freshwater’s attorney, was fast off the mark in generating spin. Hamilton gave an interview (really, a 13-minute monologue) on local conservative talk radio last Thursday, April 8, two days after the opinion concerning the various motions for summary judgment was issued by the court.

In the very first sentences of the interview Hamilton claimed that Freshwater was a happy camper:

First of all let me tell you, Dave, that John is ecstatic about the federal court ruling. The federal court here in Columbus issued a decision that essentially validates John’s positions and actions inside the school as both legitimate and meritorious.

That, folks, is knee-deep unadulterated horse manure. I read the whole of the judgment (pdf) and I saw neither “legitimate” nor “meritorious” used with reference to Freshwater’s behavior. I saw nothing that could be interpreted as suggesting, implying or even hinting that Freshwater’s behavior was “both legitimate and meritorious.” The opinion said that giving Freshwater every benefit of the doubt and making no assumptions as to credibility, the judge couldn’t say with certainty that a jury would not find in Freshwater’s favor. Therefore the issues go to trial. Hamilton is pushing a plain garden variety falsehood here. Where’s the 9th Commandment when we need it?

Hamilton went on

Essentially, the court’s decision sent the issues of the Bible on the desk, the Ten Commandments, and the Bibles in the brown box in the back of John’s classroom, essentially the judge sent those all to the jury. And I think a lot of people out there should take note that whereas before many people thought that this was a case where John was definitely going to lose, the court in this instance is saying as a matter of law, this contains factual issues that needs (sic) a jury to take a review, and as a matter of law, John didn’t necessarily do anything wrong.

Um, Kelly? That’s what trials are for: to decide whether the facts warrant relief for the plaintiffs and whether Freshwater did anything wrong. And the judge said the several factual issues should go to trial to make that determination.

Freshwater’s counterclaim was eviscerated. He’s going to trial as a defendant in a civil suit where the burden of proof for the plaintiffs is the preponderance of the evidence, not proof beyond a reasonable doubt. Recall that O.J. Simpson was acquitted in a criminal trial (beyond a reasonable doubt standard) but lost a wrongful death and battery civil suit (preponderance of evidence standard).

Hamilton also made a public appeal for the anonymous source of the black bag to reveal him/herself. He said the source “made another delivery,” apparently by mail. Hamilton said,

Someone’s taking stuff from places they shouldn’t be.

I can tell you this, that there has … we’ve obviously employed an investigator, and our investigative source tracked down the phone call that was made to my client, John Freshwater, on that particular night. Keep in mind that John was .. John was several hours away at his parents’ house, taking care of his elderly parents. We actually were able to track down that phone call to within a few blocks of the Mt. Vernon town square.

Nothing more of substance on that matter, though, except that the anonymous source apparently has an attorney.

We heard again that Freshwater’s students scored highest of the 8th grade classes on the Ohio Achievement Test. In everything I’ve heard about that (and the Freshwater spokesmen refer to it regularly), I’ve never heard of any analysis that suggests that’s anything but random sampling error. Take 90 8th grade students and randomly divide them into three classes of 30 each. One of those classes will score higher than the others through pure random sampling error. To decide whether the differences among the classes are due to a treatment effect–the teacher–requires a whole lot more information that has not been made available. So once again, references to those test scores are merely smoke being blown.

And attorney Hamilton screwed up the definition of a limited purpose public figure. He said

John is what’s considered a public figure. Defamation for a public figure is much different for that of a private person. (sic) John is a public school teacher–is a public figure–talking about public issues and quite frankly he has to meet a higher standard in order to prove that defamatory comments were made. We absolutely respect the judge’s decision and understood the challenge there.

Once again we’re up to our knees in horse manure. Freshwater is not a limited purpose public figure in this case because he’s a public school teacher. He’s a limited purpose public figure because he actively sought public attention. The court’s opinion contained a litany of Freshwater’s attention-seeking behavior::

Freshwater was interviewed on several news shows regarding the dispute between he and the school relating to the religious items in his classroom. On April 16, 2008, Freshwater addressed a rally of supporters at Mount Vernon’s Public Square, stating, among other things, that he “respectfully reject[ed] the request to remove the Bible.” Id. at 51-53. On April 28, 2008, Freshwater was interviewed on Bob Burney Live, an AM radio talk show, and on July 5, 2008, Freshwater and one of his attorneys appeared on the Fox News television program, Showdown. Also, Freshwater was interviewed on the radio talk show, Point of View on August 1, 2008.

That’s why Freshwater is a limited purpose public figure: He actively sought publicity on the matter, intentionally and persistently putting himself in the public eye.

Hamilton offered a teaser for the resumption of the administrative hearing late this month, saying he was going to call more witnesses and introduce new documents:

There’s one document in particular that was provided by the anonymous source that we’re very excited to make use of it (sic) because it’s pretty clear that five years before this instance came to fruition John was doing things that he clearly was given direction to do.

I can’t go on. My puppy deserves more attention than Hamilton. Hamilton twists, turns, misrepresents, and spins; the puppy merely chews shoes. Hamilton apparently thinks he’s a cross between Perry Mason and CSI.

Anyone who wants an mp3 of the interview–really, the 13-minute monologue–is free to email me or drop a comment with a suitably distorted (using [AT] and [DOT]) email address to prevent (harvesting by spam spiders. Make sure your email host will accept a 12.5 meg mp3 attachment (gmail will, hotmail won’t).