Freshwater: The waiting continues

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John Freshwater’s petition for a writ of certiorari has been placed on the SCOTUS docket for a September 29, 2014, conference.

19 Comments

Help me out here. Does being “placed on the docket” mean that it was accepted for review? Clearly, being “on the docket” suggests that it wasn’t dismissed out right.

Scott F said:

Help me out here. Does being “placed on the docket” mean that it was accepted for review? Clearly, being “on the docket” suggests that it wasn’t dismissed out right.

No worries yet, a writ of certiorari means he’s petitioning to be reviewed. http://en.wikipedia.org/wiki/Writ_of_certiorari

IANAL, but it seems that by putting Freshwater on the docket for a “conference”, it shows the justices are not immediately dismissing the case, and thereby not upholding the lower courts’ rulings. By taking no action, or by saying “no” outright, (which they could have done already), the justices could have disposed of this case. Instead, the case is on the docket for “conference”, and is, IMO, a sign that at least some (4 or more) of the justices are significantly interested in the case. My feeling is that, given the current membership of the court and that the court is going actually discuss whether or not to accept this case, it’s very possible for a 5-4 decision in favor of Freshwater, both to hear the case and for a final decision. I sincerely hope I am wrong here…

I have tried to find the Mt. Vernon BOE merit brief on-line, but have not had any success. Anyone know where it can be found?

Also, thanks to Richard for your continued monitoring of this nightmarish saga!

Scott F said:

Help me out here. Does being “placed on the docket” mean that it was accepted for review? Clearly, being “on the docket” suggests that it wasn’t dismissed out right.

According to this legal blog:

Every petition that is docketed at the U.S. Supreme Court, and remains on the docket, will eventually be distributed for a conference, usually held on a Friday. The date of the conference depends upon whether or not the Court is in session, in recess or on vacation. (There were 39 conferences during the 2011 Term.) Does this mean the Court will discuss each petition distributed during their conference? Absolutely not! Although this is a very closely guarded secret, I would estimate that, at best, only 20-25% of the petitions distributed for a given conference are actually discussed during that conference and few, if any, of those discussed, are granted. Those which aren’t discussed, become automatically denied.

And

However, in 1972, the Court instituted a pooling system whereby each justice, who participates in the pool, is only responsible for his or her proportionate number of petitions distributed. Currently, eight justices participate in the pool, so his or her chambers are only responsible for 1/8th of the petitions and the 9th justice (currently Justice Alito) is responsible for reviewing all petitions distributed. For those justices participating in the pool, the petitions are read by one of the four law clerks typically found in each of the justices’ chambers. Each of them writes a memo as to each petition he or she read that summarizes the petition with a recommendation as to whether or not the petition is cert-worthy. These pool memos are then distributed to the participating justices. Prior to the conference, the Chief Justice circulates a “discuss list” containing any petitions he deems worthy of further discussion. Each justice can add to the list any petition he or she deems worthy. Very few, if any, petitions on the discuss list are granted. The remaining petitions, as I have stated, are automatically denied.

If the SCOTUS fails, Freshwater can go to his right-wing congressional supporters and/or the fanatical religious right groups who say America is for christians only and Freshwater is their martyr.

DavidK said:

If the SCOTUS fails, Freshwater can go to his right-wing congressional supporters and/or the fanatical religious right groups who say America is for christians only and Freshwater is their martyr.

Yeah, all them JEWS and CATHOLICS on the JEW-POPE court just love to smack down good White American Protestant Christian boys! [/channeling Texas Militia]

I don’t know that it’s available anywhere online. I got a copy from a newspaper reporter.

JimboK said:

I have tried to find the Mt. Vernon BOE merit brief on-line, but have not had any success. Anyone know where it can be found?

Also, thanks to Richard for your continued monitoring of this nightmarish saga!

Hmm. I wonder if it’s an attempt by the conservatives on the court to at least appear to be on F’s side. They can then blame the left for shooting it down.

fnxtr said:

Hmm. I wonder if it’s an attempt by the conservatives on the court to at least appear to be on F’s side. They can then blame the left for shooting it down.

Since it only takes four to grant cert, the four conservatives could make the Court hear the case if they wanted.

As usual, it’s a little more complicated than it’s easy to discern.

(1) Everything filed with a US court is “on the docket.” The docket is merely an index of filings. It has no legal meaning; it is purely an administrative device. As a corresponding example, just because a book has been assigned a Library of Congress Catalog Number does not mean that the book is in the circulating collection (or, indeed, is even held in the Library’s off-site collection).

(2) Being listed for the 29 September conference (the so-called “Long Conference”) is statistically bad for chances of being granted review of a state-court opinion. Over the last couple of decades, the already-abysmal chances of the Supreme Court taking up a state-court opinion are distinctly, and statistically significantly, worse from the Long Conference than at other times of the year, dropping from about 0.7% to under 0.3%. Admittedly, this is distorted by the high proportion of criminal matters among the appeals-from-state-courts portion of the docket, but it’s still a data point.

(3) The most-probable result of the Freshwater petition is that there will be no decision on it at the Long Conference — not because there is (or is not) considered to be much on the merits, but because there are at least three other Establishment Clause matters to be considered at that Conference, and if any of them is considered a close call the Court will probably hold all of them for a later conference. This is absolutely, positively routine, and one of the big frustrations of Supreme Court practice: It’s very difficult to plan one’s professional life when one can’t know whether the clock for briefing will start the following Monday… or even on what issues, because —

(4) The Court will not necessarily grant certiorari (if, of course, it grants it at all) on the issues as framed by Freshwater. Indeed, if there is a grant at all, I expect that it will be together with one of the other Establishment Clause cases currently under consideration, and that the Court will restate the question(s) for review. It either limits or changes the question(s) about 5% of the time in general… but about 15% of the time in non-criminal Bill of Rights matters (both of those concern cases actually heard).

(5) There’s a heavy, heavy procedural barrier to reviewing this matter: It’s a state-court opinion concerning treatment of an employee of an arm of the state. Then there’s the whole McDonnell-Douglas burden-shifting inquiry. I’m going far afield here to make a point: The Court is even more unlikely than usual to grant review under these circumstances absent proof in the record (which just isn’t there for Freshwater) of purposeful, inimical ulterior motives. Even the Court — insulated as it is from real life, or even public-school classrooms — is smart enough to understand that injuring a student in the classroom as part of a demonstration is reason enough to fire the teacher… and, therefore, that a decision it makes on the Establishment Clause issues will still have little effect on Freshwater’s employment.

Even the Court — insulated as it is from real life, or even public-school classrooms — is smart enough to understand that injuring a student in the classroom as part of a demonstration is reason enough to fire the teacher

Unfortunately, that incident was not part of the case for termination of Freshwater.

A civil suit by the family was settled by the school’s insurance company, if I recall correctly. Fine tuning of this statement from those who most dedicate themselves to following this affair is welcome, of course.

As a lay person, my guess is that the school got the legal advice to limit the appearance of the severity of the incident, in order to minimize the size of the settlement. If they had fired or severely disciplined Freshwater, the family’s attorney could have said “Your honor, they themselves implicitly concede my client’s injury; they fired the teacher for the incident!”. Basically, to deal with the civil suit, they probably took the tack that nothing happened, and if something did happen, it wasn’t a severe injury.

Freshwater was later fired for insubordination.

This may seem strange, but if you think about it, firing him for electrocuting a student would make them vulnerable to civil actions (because such a firing would support plaintiff claims that there was a significant incident). Insubordination does not as directly raise the specter of student injury, and thus raises less risk that the firing will be used as grist by a plaintiff’s attorney later.

harold said:

This may seem strange, but if you think about it, firing him for electrocuting a student would make them vulnerable to civil actions (because such a firing would support plaintiff claims that there was a significant incident). Insubordination does not as directly raise the specter of student injury, and thus raises less risk that the firing will be used as grist by a plaintiff’s attorney later.

IANAL, harold, but it would seem to me that the district NOT firing a teacher who was ‘electrocuting students’, even after becoming aware of that fact, would open them up even worse to a lawsuit. But then, IANAL.

Just Bob said:

harold said:

This may seem strange, but if you think about it, firing him for electrocuting a student would make them vulnerable to civil actions (because such a firing would support plaintiff claims that there was a significant incident). Insubordination does not as directly raise the specter of student injury, and thus raises less risk that the firing will be used as grist by a plaintiff’s attorney later.

IANAL, harold, but it would seem to me that the district NOT firing a teacher who was ‘electrocuting students’, even after becoming aware of that fact, would open them up even worse to a lawsuit. But then, IANAL.

No, i think what I described is fairly common.

Officially deny the most exposing incident and then later get rid of the person for a different reason.

I’m only guessing, and can never know, if that was the case here.

If it was it worked. The settlement was modest and no other plaintiffs materialized.

The neutral facts are that Freshwater wasn’t fired or strongly disciplined for the Tesla coil incident. I merely offer an explanatory hypothesis. But any competing hypothesis must be equally compatible with the known facts to be worthwhile.

Just Bob said:

harold said:

This may seem strange, but if you think about it, firing him for electrocuting a student would make them vulnerable to civil actions (because such a firing would support plaintiff claims that there was a significant incident). Insubordination does not as directly raise the specter of student injury, and thus raises less risk that the firing will be used as grist by a plaintiff’s attorney later.

IANAL, harold, but it would seem to me that the district NOT firing a teacher who was ‘electrocuting students’, even after becoming aware of that fact, would open them up even worse to a lawsuit. But then, IANAL.

IMPORTANT: I strongly agree that the Tesla coil incident should have been treated seriously.

I’m just guessing why it might not have been, and by no means endorsing what happened.

An alternate hypothesis is merely that there was intense bias in Freshwater’s favor, but that the settlement sobered minds and made people more realistic. And neither hypothesis is totally exclusive of the other.

I should have made something clearer.

The Tesla coil incident is in the record (both administratively and in the court actions). The Supreme Court can — and, indeed, is compelled — to affirm the result below (the firing) on any ground found in the record. That the school district could (and, as others have noted, should) have fired Freshwater for causing injury to a student, and that everything relating to that injury is in the record, is a proper defense of the decision below… because it means that Freshwater cannot actually get relief from the firing in the courts.

I suspect that the injury was not used as cause for firing because of some combination of (a) misinterpretation of the collective bargaining agreement with the teachers’ union and (b) fear that would open the school up to liability for failure to supervise (which may have been on the part of the school district’s insurer, not the district itself; insurers have a distressing tendency to insert themselves in situations like this and keep people from doing the right thing).

Thus, even if Freshwater “wins” his entire misbegotten First Amendment claim, he still loses: The record supports firing him for other reasons. That, by itself, means I don’t think he gets a grant of certiorari; the Court doesn’t like wasting its time on these kinds of things when even if it rules for the petitioner, the petitioner gets no relief.

ceplaw said:

I should have made something clearer.

The Tesla coil incident is in the record (both administratively and in the court actions). The Supreme Court can — and, indeed, is compelled — to affirm the result below (the firing) on any ground found in the record. That the school district could (and, as others have noted, should) have fired Freshwater for causing injury to a student, and that everything relating to that injury is in the record, is a proper defense of the decision below… because it means that Freshwater cannot actually get relief from the firing in the courts.

I suspect that the injury was not used as cause for firing because of some combination of (a) misinterpretation of the collective bargaining agreement with the teachers’ union and (b) fear that would open the school up to liability for failure to supervise (which may have been on the part of the school district’s insurer, not the district itself; insurers have a distressing tendency to insert themselves in situations like this and keep people from doing the right thing).

Thus, even if Freshwater “wins” his entire misbegotten First Amendment claim, he still loses: The record supports firing him for other reasons. That, by itself, means I don’t think he gets a grant of certiorari; the Court doesn’t like wasting its time on these kinds of things when even if it rules for the petitioner, the petitioner gets no relief.

Many thanks for this.

Could a hypothetical ideology driven court find in favor of his “first amendment” claim, while still allowing his overall firing? Thus allowing future teachers who “only” preach sectarian science denial instead of the appropriate curriculum, at taxpayer expense, ostensible legal coverage?

ceplaw said:

I should have made something clearer.

The Tesla coil incident is in the record (both administratively and in the court actions). The Supreme Court can — and, indeed, is compelled — to affirm the result below (the firing) on any ground found in the record. That the school district could (and, as others have noted, should) have fired Freshwater for causing injury to a student, and that everything relating to that injury is in the record, is a proper defense of the decision below… because it means that Freshwater cannot actually get relief from the firing in the courts.

I suspect that the injury was not used as cause for firing because of some combination of (a) misinterpretation of the collective bargaining agreement with the teachers’ union and (b) fear that would open the school up to liability for failure to supervise (which may have been on the part of the school district’s insurer, not the district itself; insurers have a distressing tendency to insert themselves in situations like this and keep people from doing the right thing).

Thus, even if Freshwater “wins” his entire misbegotten First Amendment claim, he still loses: The record supports firing him for other reasons. That, by itself, means I don’t think he gets a grant of certiorari; the Court doesn’t like wasting its time on these kinds of things when even if it rules for the petitioner, the petitioner gets no relief.

Can someone else enter the case as an amicus curiae and bring attention to facts which are being ignored by the parties to the case?

harold asked: Could a hypothetical ideology driven court find in favor of his “first amendment” claim, while still allowing his overall firing? Thus allowing future teachers who “only” preach sectarian science denial instead of the appropriate curriculum, at taxpayer expense, ostensible legal coverage?

Yes, it’s hypothetically possible. Much more likely is that something like this would be noted in a dissenting opinion, or even a concurring opinion. Neither of those would be “the law,” but instead represent a scream “give me a better case!”

TomS asked: Can someone else enter the case as an amicus curiae and bring attention to facts which are being ignored by the parties to the case?

Yes, and in fact it’s routine. What is much more likely in this instance is something referred to as a “CVSG” at the certiorari stage: Call for the Views of the Solicitor General. The Court may — and with some frequency does — ask the Solicitor General to step in and recommend whether to grant cert. because the views of the United States are relevant to a case in which the United States is not formally a party. The Solicitor General may also choose to file an amicus brief, or even move to intervene, without the Court asking for it, but that is much more common at the merits stage (once cert. has been granted).

In this particular case, that would be rather deliciously ironic, because certiorari “means” (not literally, it’s bad Latin) “send the record from the lower court(s) up to us for review.” The petition for certiorari is a plea for the Supreme Court to examine the record for errors. Indeed, one of the most annoying parts of Supreme Court practice is preparing not the briefs, but the mandatory appendix containing certain parts of the record in a format used nowhere else in the law. In the old days, that frequently required retyping transcripts and so on; today, you’ll see annotations in the docket concerning “dispens[ing] with printing the joint appendix” that concern this problem, which can be quite expensive. For one matter that I worked in the 1990s — not a particularly complex one — the printing costs for the appendix alone would have been around $3,000 (there are hypertechnical formatting, binding, and service requirements, and a handful of specialist printing firms to deal with them).

ceplaw said:Indeed, one of the most annoying parts of Supreme Court practice is preparing not the briefs, but the mandatory appendix containing certain parts of the record in a format used nowhere else in the law. In the old days, that frequently required retyping transcripts and so on;…

One would think that, today, once the transcript is in machine-readable form, that it could be reformatted programmatically, or at least with a high degree of automation, which would cut out a great deal of the labor in the process. (But, then, I spent 40 years programming for a living…)

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