Freshwater: Board motion denied

| 16 Comments

You will recall that attorneys for the Mt. Vernon Board of Education moved to strike parts of his merit brief, the document that makes his argument to the Ohio Supreme Court to overturn his termination as a middle school science teacher in Mt. Vernon, Ohio. The Board’s argument was that his merit brief included Propositions of Law that are significantly different from those in his Memorandum in Support of Jurisdiction, the document on which the Court’s acceptance of the case was based. I described that in Freshwater: The bait and switch laid out.

This morning I was notified that the Court has denied that motion to strike. The notification reads in full:

DECISION: Denied Ref: Motion to strike propositions of law 1 & 2, appendix pages 49 & 55-56, and supplement pages 103-116 from the merit brief of appellant

Notification Date/Time: 11/28/2012 9:15:28 AM

The ruling is not yet on the case documents site. That should be up sometime in the next 24 hours. If it says more than the notification I received I’ll flag it here.

I find the ruling inexplicable: Why would the Court accept a case on one set of Propositions of Law but then permit the appellant to argue his case on the basis of a different set Propositions? Beats the hell out of me.

16 Comments

Looks like the fix is in. They do realize what will happen if they try to put Freshwater in a class room again, I hope.

Why do they call these things “briefs”?

This circus has been going on for two years.

Ain’t nuthin brief about it.

Well, IANAL but IMO that ups the ante considerably.

Seems the Ohio Spremes have decided that they don’t want to dismiss this thing on legal technical grounds - even good ones. Which probably means they either want to do a substantive smack down of Freshwater or a substantive smack down of the Board.

stevaroni said:

Why do they call these things “briefs”?

This circus has been going on for two years.

Ain’t nuthin brief about it.

SCOTUS has a taste for tight-whities?

I’d love to know as well what’s going on with the Court. The differences on the Propositions seem clear enough; perhaps an ulterior motive is at play, one which disregards typical court proceedings.

I don’t find this inexplicable at all. It has been a concern from the moment the Ohio SC opted to take on the case that the bench has a pro-creationist agenda and every decision since then has only served to strengthen that concern.

So I decided to take a look at the current bench. Some facts:

6 of judges are Republican, only 1 is Democrat, although one (Pfeifer) tends to vote closer to the Democrat ticket despite being a nominal Republican.

The Ohio SC is infamous for its judges voting in favour of their campaign benefactors. Yes, you heard that right, these judges routinely accept large donations and then preside over litigation cases involving their donors. In many cases, the donations were accepted after the case had been argued but before the judge handed down a decision. That is, these judges accepted large donations from plaintiffs or defendants while they were deliberating on the case.

According to The New York Times, of 125 cases where the Ohio judges had direct conflicts of interest, they recused themselves only 9 times. And although many of the justices claim that they are still able to be fair to all litigators and the donations do not affect their judgements, the figures show that 70% of cases are decided in favour of their campaign donors – and in the case of Justice O’Donnell it’s a whopping 91%.

So I thought I’d check out O’Donnell’s campaign contributors. Of the $523,000 he raised for this year’s campaign, $192,000 is from “uncoded” sources and another $107,000 is from “lawyers and lobbyists”. In other words, he received more than half of his funding from sources where the ideology/motivation for the donation is effectively undeclared.

Thanks for that day brightener! :)

On the other hand, motions to strike are rarely granted, especially at the appellate (or higher) level. The general attitude is that they are judges after all, not the hoi polloi, and will give due weight to the materials. “Don’t tell us what we can or cannot consider.”

ahcuah said:

On the other hand, motions to strike are rarely granted, especially at the appellate (or higher) level. The general attitude is that they are judges after all, not the hoi polloi, and will give due weight to the materials. “Don’t tell us what we can or cannot consider.”

That may be true, but in this case the misconduct was so blatant and egregious that it basically insulted the intelligence of the judges. Using your reasoning, they should have immediately dismissed with prejudice and forbidden any further appeal. Lying scumbags should not be able to get away with judicial misconduct at this level without penalties. The court obviously has an agenda and it obviously isn’t going to let a little thing like the rules get in the way.

Or maybe I’m just being paranoid. After all, what do they possibly think they can accomplish? If they try to exonerate the lying bastard they are in for a world of hurt.

I hope that this court will be so slow in reaching a decision in Freshwater’s favor that President Obama will have by then appointed another judge to SCOTUS. Or whatever decision they reach pro or con.

Had Romney of gotten elected there would be much more to be concerned about.

Assuming, of course, that Mt. Vernon has the will and resources to go all the way if necessary.

Charley Horse said:

I hope that this court will be so slow in reaching a decision in Freshwater’s favor that President Obama will have by then appointed another judge to SCOTUS. Or whatever decision they reach pro or con.

My understanding is that the Court is likely to render its decision by June 2013, the end of its current session.

Assuming, of course, that Mt. Vernon has the will and resources to go all the way if necessary.

The Board’s insurance company is carrying the ball.

Richard B. Hoppe said:

Thanks for that day brightener! :)

Yeah Chris, thanks for the gut punch.

‘The court will now hear arguments in the case of X vs. Y. Counsels will note there is a box on both the left and right sides of the bench. Please place a copy of your deposition in the left-hand box, and a copy of your campaign check in the right-hand box.’

Richard B. Hoppe said:

Charley Horse said:

I hope that this court will be so slow in reaching a decision in Freshwater’s favor that President Obama will have by then appointed another judge to SCOTUS. Or whatever decision they reach pro or con.

My understanding is that the Court is likely to render its decision by June 2013, the end of its current session.

Assuming, of course, that Mt. Vernon has the will and resources to go all the way if necessary.

The Board’s insurance company is carrying the ball.

Curiouser and curiouser. I’m looking forward to the actual hearing. Thanks again for reporting on this!

stevaroni said:

Why do they call these things “briefs”?

This circus has been going on for two years.

Ain’t nuthin brief about it.

Nope, longer than that. This all started when my fifth grader was in kindergarten.

Oral Argument Calendar January 8, 2013 - April 10, 2013*

Oral Argument Calendar Maureen O’Connor, Chief Justice Paul E. Pfeifer Terrence O’Donnell Judith Ann Lanzinger Sharon L. Kennedy Judith L. French William M. O’Neill Justices Steven C. Hollon, Administrative Director Kristina D. Frost, Clerk of the Court Sandra H. Grosko, Reporter

Each side is allowed 15 minutes for oral argument unless otherwise noted. Court convenes promptly at 9 a.m. Counsel in all cases are expected to be present when court convenes. Counsel should register with the chief deputy clerk prior to 8:45 a.m.

[…]

WEDNESDAY February 27 9 a.m.

[…]

12-0613 John Freshwater v. Mount Vernon City School District Board of Education Knox

Oops, here’s the link for the Ohio Supreme Court Oral Argument Calendar: http://www.supremecourt.ohio.gov/Clerk/calendar/

Thanks for the reminder. I plan to post on it a few days before oral arguments. They’ll be streamed online that morning, and a video will be posted that evening.

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This page contains a single entry by Richard B. Hoppe published on November 28, 2012 10:55 AM.

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