Freshwater: Same song, second verse

| 64 Comments

The legal morass into which John Freshwater and his attorney R. Kelly Hamilton have been sinking became deeper today. United States Magistrate Judge Norah McCann King has granted a Motion to Compel compliance with discovery demands and imposed sanctions on Hamilton, John Freshwater’s attorney in Freshwater v. Mount Vernon Board of Education, et al.. This is the second granted Motion to Compel and the second set of sanctions imposed on Hamilton. The first occurred in Doe v. Mount Vernon BOE, et al., when Judge Gregory Frost ordered Hamilton and Freshwater to pay attorney fees and costs to the Dennis family’s attorney. This new order requires Hamilton alone to pay attorney fees and costs to the Board of Education’s lawyer(s) for his dilatory tactics in guiding the evasive responses of the Freshwaters (John and his wife Nancy) to discovery demands. The amount of the fees to be paid isn’t specified in the order; it says only that Hamilton is to pay

… the reasonable attorney’s fees and costs incurred by the moving defendants as a result of the grant of the Motion to Compel. The moving defendants are ORDERED to provide to plaintiffs’ attorney, within fourteen (14) days of the date of this Opinion and Order, a statement of their fees and expenses associated with the filing and grant of the Motion to Compel.

The bill in the similar ruling in Doe v. Mount Vernon Board of Education, et al., was over $28K.

The order also extends the time for the defendants (Board of Education) to identify appropriate expert witnesses, since that depends on the information the Freshwaters were to provide in discovery.

Addendum: The full ruling just went up on NCSE’s site on the case.

64 Comments

If schadenfreude were navel lint, I’d have enough to knit everyone on PT a nice, cozy sweater.

I skipped the usual after lunch cookies today. Turns out I got a nice sweet dessert anyway.

His last hope: favorable recommendation from the hearing judge/ referee.

I still think as I have in the past that Freshwater and Hamilton were expecting a proFreshwater school board to be elected and rehiring Freshwater.

I don’t see that happening nor a favorable recommendation forth coming. Now with the sanctions I expect them to drop the suits. Maybe I’m expecting a saner action than I should.

Mike: I had to look up the def for schadenfreude. For others: Schadenfreude is pleasure derived from the misfortunes of others.

Charley Horse said:

His last hope: favorable recommendation from the hearing judge/ referee.

I still think as I have in the past that Freshwater and Hamilton were expecting a proFreshwater school board to be elected and rehiring Freshwater.

I don’t see that happening nor a favorable recommendation forth coming. Now with the sanctions I expect them to drop the suits. Maybe I’m expecting a saner action than I should.

That’s still possible. Depending on the timing of the referee’s recommendation and the Board’s action on it, three new members of the BOE could be elected before that action is taken. A great deal depends on how prompt the referee is in getting his recommendation to the Board.

It couldn’t happen to a nicer guy.

I am often suspicious that court cases are schemes for the enrichment of lawyers. This one, however, deeply contradicts that stereotype.

A great deal depends on how prompt the referee is in getting his recommendation to the Board.

Has the referee been reasonably impartial? Seems there’s an awful lot a referee could have done to move those whole process forward a lot more quickly, that was not done. Why not?

Flint said:

Has the referee been reasonably impartial? Seems there’s an awful lot a referee could have done to move those whole process forward a lot more quickly, that was not done. Why not?

The referee was very hard to read, but he displayed no obvious partiality. However, he lost control of the hearing very early and never regained it. By “lost control” I mean he allowed all sorts of irrelevant and improper questioning (mostly by Hamilton), allowed postponements and delays, and generally was a passive observer rather than an active enforcer of discipline in the hearing.

RBH said: The referee…lost control of the hearing very early and never regained it. By “lost control” I mean he allowed all sorts of irrelevant and improper questioning (mostly by Hamilton), allowed postponements and delays, and generally was a passive observer rather than an active enforcer of discipline in the hearing.

Is that a possible defense by Hamilton? Could Hamilton claim that he’s a competent lawyer who was allowed to go down this path by an incompetent referee?

Paul Burnett said: Is that a possible defense by Hamilton? Could Hamilton claim that he’s a competent lawyer who was allowed to go down this path by an incompetent referee?

Nope, because the administrative hearing is independent of the federal suits. The only faintly conceivable context in which that could occur is if the recommendation goes against Freshwater, the Board accepts the recommendation, and Freshwater appeals the decision to the Knox County Court of Common Pleas. But I don’t see a “the referee let me be stupid” argument getting anywhere with Judge Eyster on the bench. He’d laugh and giggle as he tossed it out.

Paul Burnett said:

RBH said: The referee…lost control of the hearing very early and never regained it. By “lost control” I mean he allowed all sorts of irrelevant and improper questioning (mostly by Hamilton), allowed postponements and delays, and generally was a passive observer rather than an active enforcer of discipline in the hearing.

Is that a possible defense by Hamilton? Could Hamilton claim that he’s a competent lawyer who was allowed to go down this path by an incompetent referee?

Not a lawyer, but I don’t see it as helping Hamilton. The Ref’s passivity only helped Hamilton as he wasn’t reined in.

As far as the civil suits are concerned, I understand them to be completely separate and isolated. Indeed, one would think that had Hammy been on the stick in one lawsuit, that half (if not more) of his work would have been done for the other.

dpr

the referee had no cajones - am wondering if he’s as inept as a prosecutor as he was in “refereeing” the administrative hearing.….……

RBH said:

Charley Horse said:

His last hope: favorable recommendation from the hearing judge/ referee.

I still think as I have in the past that Freshwater and Hamilton were expecting a proFreshwater school board to be elected and rehiring Freshwater.

I don’t see that happening nor a favorable recommendation forth coming. Now with the sanctions I expect them to drop the suits. Maybe I’m expecting a saner action than I should.

That’s still possible. Depending on the timing of the referee’s recommendation and the Board’s action on it, three new members of the BOE could be elected before that action is taken. A great deal depends on how prompt the referee is in getting his recommendation to the Board.

Thanks as always Richard. Aren’t the school board elections every other year? As we just had a school board election last fall, won’t the next one be in 2011 ?

I just noticed a typo that I’m sure Hamilton will exploit for yet more delay.

Section III A, page 7: Plaintiffs are ORDERED to make individualized response to each discovery request propounded to them by the moving defendants within seven (7) days of the date of this Opinion and Order.

Conclusion, page 9: Plaintiffs are ORDERED to respond to the discovery requests propounded to them by the moving defendants within fourteen (14) days of the date of this Opinion and Order.

Hmm …

CMB said: Thanks as always Richard. Aren’t the school board elections every other year? As we just had a school board election last fall, won’t the next one be in 2011 ?

Was it just last year? I guess it was. I actually don’t know the terms of office or how they’re staggered across the five members. Two were elected in the fall of 2009, and I thought three were up in the next election, though again I don’t know on what schedule.

RBH said:

CMB said: Thanks as always Richard. Aren’t the school board elections every other year? As we just had a school board election last fall, won’t the next one be in 2011 ?

Was it just last year? I guess it was. I actually don’t know the terms of office or how they’re staggered across the five members. Two were elected in the fall of 2009, and I thought three were up in the next election, though again I don’t know on what schedule.

It seems like it has been longer than last November but that is when the last school board election took place. I’m not positive but I thought the terms were for 4 years and are staggered so that every 2 years some of the seats are open.

I haven’t heard or seen anything about an upcoming school board election this fall and I’m pretty sure there would have been something somewhere locally by now if there were school board seats open.

I’ll check with the Board of Elections tomorrow.

RBH said: The referee was very hard to read, but he displayed no obvious partiality. However, he lost control of the hearing very early and never regained it. By “lost control” I mean he allowed all sorts of irrelevant and improper questioning (mostly by Hamilton), allowed postponements and delays, and generally was a passive observer rather than an active enforcer of discipline in the hearing.

As I wasn’t at the hearings, I’m hesitant to say much; RBH is in a much better position to judge whether the referee appeared to exert control than I am. That said, a referee in an administrative hearing has less power to control presentations in the first place. The rules of evidence are relaxed; there is no possibility of a “directed verdict” before all of the evidence is in; and, most importantly, the hearing officer does not have the contempt power that a judge does, so even when he makes adverse procedural findings during a proceeding it’s tougher to enforce those findings.

In short, I suspect that RBH’s inference is correct — the hearing officer didn’t “control” Hamilton and Freshwater. I suspect, though, that any lack of “control” was due far more to having less authority in the first place than it was to the competent use of authority.

C.E. Petit said:

In short, I suspect that RBH’s inference is correct — the hearing officer didn’t “control” Hamilton and Freshwater. I suspect, though, that any lack of “control” was due far more to having less authority in the first place than it was to the competent use of authority.

Sure, the hearing officer has less formal authority than, say, a federal judge, but he’s not totally bereft. For example, he had the power to at least influence the course and form of questioning by sustaining or overruling objections. For example, in the early days of the hearing David Millstone, the Board’s attorney, objected frequently to a mode of questioning in which Hamilton would dictate an answer phrased in the form of a question and the witness would passively agree. The referee consistently overruled those objections until it was clear none would be sustained, so Millstone to all appearances gave up objecting. When Hamilton tried that in the federal court hearing the judge immediately sustained an objection to it. He did the same with an irrelevant line of questions: Shut it down in sustaining an objection. Shepherd had that power but never exercised it.

Further, the referee had considerable informal/implicit power as the trier of fact who will make a recommendation to the Board of Education. Letting it be known that he was getting irritated by a repetitious and irrelevant line of questioning or by Hamilton misrepresenting the testimony of prior witnesses to later witnesses (a tactic used by Hamilton in the hearing that was also slapped down by the federal judge), would have gone a long way toward exerting some control over the proceedings because of that informal authority.

C.E. Petit said:

RBH said: The referee was very hard to read, but he displayed no obvious partiality. However, he lost control of the hearing very early and never regained it. By “lost control” I mean he allowed all sorts of irrelevant and improper questioning (mostly by Hamilton), allowed postponements and delays, and generally was a passive observer rather than an active enforcer of discipline in the hearing.

As I wasn’t at the hearings, I’m hesitant to say much; RBH is in a much better position to judge whether the referee appeared to exert control than I am. That said, a referee in an administrative hearing has less power to control presentations in the first place. The rules of evidence are relaxed; there is no possibility of a “directed verdict” before all of the evidence is in; and, most importantly, the hearing officer does not have the contempt power that a judge does, so even when he makes adverse procedural findings during a proceeding it’s tougher to enforce those findings.

In short, I suspect that RBH’s inference is correct — the hearing officer didn’t “control” Hamilton and Freshwater. I suspect, though, that any lack of “control” was due far more to having less authority in the first place than it was to the competent use of authority.

Is it usual for administrative hearings to go on for as long as this one has? Why are the hearing officers given so little power? Isn’t he ultimately responsible for making the final decision? If he has total control over the results, why doesn’t he also have control of the hearings?

The system sounds unbelievably screwed up.

Is it possible that these sanctions against Hamilton will make it easier for freshwater to claim poor representation? Even if he doesn’t stand a chance I wouldn’t put it past freshwater to use another delay tactic. RBH: thank you.

Ryan Cunningham said:

Is it usual for administrative hearings to go on for as long as this one has? Why are the hearing officers given so little power? Isn’t he ultimately responsible for making the final decision? If he has total control over the results, why doesn’t he also have control of the hearings?

No, it isn’t. Rumor has it the State Department of Education, which nominates three candidates for referee in this sort of proceeding, received complaints about the length and expense of this hearing and about the lack of control by the referee. I don’t know of that has in fact happened, but I wouldn’t be surprised.

RBH said:

Flint said:

Has the referee been reasonably impartial? Seems there’s an awful lot a referee could have done to move those whole process forward a lot more quickly, that was not done. Why not?

The referee was very hard to read, but he displayed no obvious partiality. However, he lost control of the hearing very early and never regained it. By “lost control” I mean he allowed all sorts of irrelevant and improper questioning (mostly by Hamilton), allowed postponements and delays, and generally was a passive observer rather than an active enforcer of discipline in the hearing.

I think it’s a case of the administrator/judge giving him as much rope as he wants so he can hang himself and can’t say he wasn’t given ample opportunity. It makes the administrators life easier in the end and covers of against any appeal.

JJM said: I think it’s a case of the administrator/judge giving him as much rope as he wants so he can hang himself and can’t say he wasn’t given ample opportunity. It makes the administrators life easier in the end and covers of against any appeal.

If so it’s very damned expensive rope. By the time it’s over the cost of just the administrative hearing to the district will come very close to $1M.

Maybe instead of a referee they should have an umpire! (You’rrrrrre OUT!)

Thank god for the Germans (I’m sure that’s a phrase not said too often); schadenfreud is so much nicer than gloating. As I read RBH’s accounts I feel a tingle of joy at the thought of these morons sitting together in a cold country kitchen,leaning over a cup of iced tea, barely making eye contact, and shuffling their feet, wondering where the hell god is at the moment when they need him/her/it the most.:)

RBH said:

JJM said: I think it’s a case of the administrator/judge giving him as much rope as he wants so he can hang himself and can’t say he wasn’t given ample opportunity. It makes the administrators life easier in the end and covers of against any appeal.

If so it’s very damned expensive rope. By the time it’s over the cost of just the administrative hearing to the district will come very close to $1M.

yep, expensive. but once lawyers are involved it’s always expensive and you don’t want to give him room to appeal or it’s more expensive in the long run. is there any way that the district can go for costs.

JJM said:

yep, expensive. but once lawyers are involved it’s always expensive and you don’t want to give him room to appeal or it’s more expensive in the long run. is there any way that the district can go for costs.

Nope. Bear in mind that this is an administrative hearing, not a civil trial in a court. Statutorily the district bears the costs of its own lawyer, security, referee, and court reporter. Freshwater bears the cost of his own lawyer and any other costs associated with his presentation. That’s what gave Hamilton the Freshwater farm, or so we’ve been told.

Stupidity should be expensive.

Stuart Weinstein said:

Stupidity should be expensive.

It should also lower your chances of reproducing successfully, though this seems not to be the case.

RBH said:

CMB said:

So apparently there is a conspiracy against Freshwater and the Mount Vernon News is at the heart of it!

Conspiracy theories have been part of Freshwater’s (=Hamilton’s) argument in the hearing. According to his testimony, he’s had a target on his back since he made his ID-based science curriculum proposal in 2003. It’s not clear who is behind the conspiracy, since the only two senior people who were in office in both 2003 and 2008 were Margie Bennett of the Board of Education, who is an administrator at the Nazarene University here, and Lynda Weston, former Director of Teaching and Learning. They’re the only ones I can see who could have carried out such a conspiracy. That the MVNews is actually the culprit was new to me.

This conspiracy would have to encompass The Mount Vernon News, The Columbus Dispatch, Panda’s Thumb, a number of current and former teachers, administrators, school board members and students and their parents.Quite a broad group out to fire this paragon of virtue and reason, John Freshwater.

I think we really need to keep reminding people that paragons of virtue do not burn symbols or shapes into children’s arms. It doesn’t take any sort of conspiracy to “gang up” on someone who so clearly abuses youngsters in their care. Just a sense of morality that seems sadly lacking in Freshwater and his supporters.

no hugs for thugs, Shirley Knott

This ruling stated that FW & RKH had 14 days to cough up the requested discovery items. It’s been 20. Any indication that they complied?

Reading that last sanction order, I get the impression that the next court date will be sometime after Oct 31st. Is that correct?

I need my fix, I’m starting to get the dt’s.

MememicBottleneck said:

This ruling stated that FW & RKH had 14 days to cough up the requested discovery items. It’s been 20. Any indication that they complied?

I’ve heard nothing, and no one is talking for publication.

Reading that last sanction order, I get the impression that the next court date will be sometime after Oct 31st. Is that correct?

That suit (Freshwater v. Mount Vernon Board of Education, et al.) is scheduled to go to trial in June 2011. Sometime before that there will be a mandatory mediation session with the judge, but I doubt that will occur before spring 2011. I know of nothing else that’s scheduled.

I need my fix, I’m starting to get the dt’s.

Well, the referee’s recommendation may go to the BOE later this month, at which time it becomes a public document. I’ll have that as soon as it’s available and will post on it.

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This page contains a single entry by Richard B. Hoppe published on August 31, 2010 2:27 PM.

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