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Did Dover Care About Taxpayer Money? A Response to Critics.

Seth Cooper and Joe Manzari's article, "ACLU Demands and Dover Designs," raised fresh questions about the potential for a dismissal of the Kitzmiller case based upon mootness, potentially allowing the Dover Area School Board to avoid a large attorneys' fees judgment against them by rescinding their intelligent design (ID) policy before Judge Jones issued his decision.

Opponents of intelligent design responded harshly to the AEI article (and my own reporting) by questioning the legal reasoning about mootness. One critic stated that the AEI article, and my commentary, "appear to be utterly ignorant of the voluntary cessation doctrine" and "there was virtually no chance that the case would be mooted." Yet several Supreme Court cases dealing with mootness and a careful review of the law demonstrate that there was strong case for dismissal if the anti-ID Board had repealed the ID policy prior to the ruling. The argument is hypothetical (one might even say, "moot"!) because the Board ultimately rejected all arguments to repeal the policy, choosing instead to pin its hopes that Judge Jones would rule in favor of a policy they themselves rejected. But even if the odds were small that Judge Jones would have dismissed the case, or that an appellate court would have vacated the judgment on the ground of mootness, the puzzle remains. If there was nothing to be lost by rescinding the policy, would not even a slight chance of success have led a prudent school board to take advantage of the opportunity? Their choice resulted in an absolute guarantee that if the ID policy were struck down, then the Dover Area School District would be obliged to pay $1 million dollars in attorneys' fees.

1. The Mootness Doctrine in General
The requirement that a moot case be dismissed stems from Article III of the United States Constitution, which requires that a "case or controversy" be between the parties in order for federal courts to have jurisdiction. There are two related concepts that form this jurisdictional requirement: standing and mootness. The requirement of standing (not an issue in this case) is whether or not the party bringing the action has a big enough stake in the issue in order to justify the lawsuit--to insure that the litigation is necessary rather than simply sport for the plaintiffs. Similarly, the prohibition against deciding moot cases is a limitation on the power of the judicial branch to insure that they decide real cases rather than accept the invitation to render an advisory opinion.

Even if neither party asserts mootness as an argument, federal judges are obligated to dismiss as moot any case in which there is no genuine case or controversy. Moreover, it is well established that a judge, even on the appellate level, is required to raise the mootness issue sua sponte without any prompting from the parties.

For instance, in Moongate Water Company v. Dona Ana Mutual Domestic Water Consumers , 420 F.3d 1082 (10th Cir. 2005), an appellate court vacated decision of district judge where intervening events rendered original controversy moot). Also, in Gator.com Corporation. v. L.L. Bean, Inc., 398 F.3d 1125, (9th Cir. 2005), the Ninth Circuit stated that the mootness was "'whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment,'" (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941)).

2. Voluntary Cessation Can Render a Case Moot Where there is No Danger that the Defendant Would Take Advantage of Dismissal to Resume the Challenged Conduct.
It is well established that a defendant generally cannot take advantage of the mootness doctrine by voluntarily ceasing the challenged conduct in order to avoid an adverse judgment. Thus, "defendants who argue that a case has been mooted by their voluntary cessation of allegedly wrongful conduct must meet a very high burden because a mootness-based dismissal would 'leave the defendant ... free to return to his old ways.'" Fed. Trade Comm'n v. Affordable Media, LLC, 179 F.3d 1228, 1238 (9th Cir.1999) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953)). Nevertheless, despite the risk of manipulative conduct by defendants, courts have refused to adopt a rule that completely excludes voluntary cessation as a basis for mootness. Instead, courts require the judge to look at the facts of the case to determine the likelihood that the challenged conduct will be repeated.

Ed Brayton and Timothy Sandefur argue that the voluntary cessation doctrine is dispositive and the Board held no chance to have the case rendered moot by repealing the ID policy. Sandefur states, "In particular, the voluntary cessation of illegal conduct will not render a case moot," and that in this case, "If the Board had rescinded the policy, the case would not have been moot, and had Judge Jones decided it was moot, he would have been reversed on appeal." On the contrary, a careful examination of the doctrine of voluntary cessation, the arguments found in highly regarded legal treatises, and the cases discussing mootness makes it clear that Judge Jones (or an appellate judge reviewing Judge Jones' decision) would have had a strong basis for dismissal.***

As discussed below, it is well established that courts do not apply the voluntary cessation exception when a legislative body repeals a challenged statute.

3. Legislative Change -- a Special Case of Voluntary Cessation.
Statutory change represents one of the most important applications of voluntary cessation. In fact, Erwin Chemerinsky's treatise, Federal Jurisdiction, includes a lengthy subsection on legislative changes within the voluntary cessation section (§ 2.5.4):

"Usually, a statutory change is enough to render a case moot, even though the legislature possesses the power to reinstate the allegedly invalid law after the lawsuit is dismissed." (4th ed., p.138)

Rescinding the ID policy could have been precisely such a "statutory change." After discussing four Supreme Court cases dealing with legislative change and mootness, Chemerinsky concludes:

"The key appears to be that 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." (4th ed., p.139)

As one court put it, "[t]his exception [voluntary cessation] properly applies only when a recalcitrant legislature clearly intends to reenact the challenged regulation." Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637, 645 (6th Cir. 1997) (discussing voluntary cessation and the Aladdin's Castle case, which this post addresses below). In the context of legislative change, voluntary cessation is not an absolute exception, and actively repealing a policy can render a case moot.

The claim that a finding of mootness would have been overturned on appeal had Judge Jones found the case moot, as Sandefur asserts, is inconsistent with Supreme Court cases on mootness. In Kremens v. Bartley, 431 U.S. 119 (1977), the U.S. Supreme Court ruled the case moot when the challenged Pennsylvania law was repealed after the District Court in Pennsylvania had ruled it unconstitutional. (The case was a class action and also involved questions about splitting the class.) Likewise, in Massachusetts v. Oakes, 491 U.S. 576 (1989), a state law challenged for overbreadth was amended after the Supreme Court granted certiorari, and the Court dismissed the case as moot. In both cases, an over-simplified notion of the voluntary cessation doctrine exhibited by current critics would prevent these cases from being declared moot. However the Supreme Court treated the legislative cessation as a special case, and such types of voluntary cessation do not preclude a declaration of mootness.

Had the Dover Area School Board repealed their ID policy, this would have constituted precisely the type of legislative change that triggered mootness in the cases discussed above. In fact, the argument for mootness in this Kitzmiller hypothetical would have been even stronger than these Supreme Court cases, for a new school board was elected, in large part, because they opposed the challenged conduct. This significantly strengthens the argument that the School Board would not be attempting to evade review by repealing the policy, for they were staunch opponents of the challenged policy. The change in personnel makes the argument for mootness quite strong. Indeed, the Supreme Court has found that changes in political personnel can render a case moot in other contexts, such as in Spomer v. Littleton, 414 U.S. 514 (1974).

To be clear, legislative actors are not given an absolute exemption from the voluntary cessation doctrine. Notably, in City of Mesquite v. Aladdin's Castle, 455 U.S. 283 (1982) and in Northeastern Florida Contractors v. City of Jacksonville, 508 U.S. 656 (1993), the Supreme Court declined to render the cases moot when the legislative actors ceased the challenged conduct. If there is a reasonable possibility that the government will reenact the law if the court moots the case, then the legislative change will not moot the case. In the Northeastern Florida Contractors case, the challenged law was repealed and a slightly different version was immediately passed to replace it, having substantially the same constitutional problems, and this was not sufficient to moot the case.

However, the Kitzmiller hypothetical is clearly distinct from City of Mesquite, for the newly elected anti-ID school board cannot reasonably have been expected to re-pass the ID policy had Judge Jones declared the case moot. Likewise, this situation is distinguishable from Northeastern Florida Contractors because if Dover had repealed the policy, they would have done so in totality--not "repeal and replace with a similar version." The obviously changed character of the school board would have provided a strong claim for mootness.

4. Mootness Applies At All Times, Not Just During Trial.
Finally, some of the responses to Cooper and Manzari's AEI Article wrongly imply that once a trial is complete, a case cannot be rendered moot. (This is the implication from the Dover Board's December 5 minutes.) Yet consider how the Supreme Court clearly describes the Article III requirement:

"This case-or-controversy requirement subsists through all stages of judicial proceedings, trial and appellate. To sustain jurisdiction in the United States Supreme Court, it is not enough that a dispute was alive when suit was filed, or when review was obtained in the court of appeals, the parties must continue to have a personal stake in the outcome of the lawsuit." Lewis v. Continental Bank, 494 U.S. 472, 478 (1980) (internal citations omitted).

Thus, while the Kitzmiller plaintiffs might not feel it "fair" if the case would have been rendered moot after the trial, the Constitutional requirement of having an actual controversy undeniably applied, even after the trial had terminated. To be clear, when circumstances change, even after a district court ruling, a case becomes moot. The Supreme Court cases discussed above about legislative change involve legislative changes that came after the lower court rulings.

5. Attorneys Fees
Attorneys fees are awarded, under 42 U.S.C. § 1988, to any "prevailing party" when the government is found to have violated the Constitution. In the AEI article's hypothetical, if the Board repealed the policy and Judge Jones found the case to be moot, then there would not be any attorneys fees awarded. The recent Supreme Court case of Buckhannon Board and Care Home v. West Virginia Department of Heath and Human Resources, 532 U.S. 598 (2001), settles this issue clearly. Under Buckhannon, attorneys are no longer entitled to fees merely for being a "catalyst" in a policy being changed. Thus, if the case would have been rendered moot before Judge Jones issued his final judgment, then the Dover School Board would not have been liable for plaintiffs' attorneys' fees. Under Buckhannon, attorneys fees would not have been awarded in Kitzmiller without a final judgment.

Once the Kitzmiller ruling was issued, however, the right to attorneys' fees under § 1988 comes into play. Critic Sandefur thus offered a general defense of the important role that attorneys' fees play in civil rights litigation. However, while awarding attorneys' fees is a desirable policy in general, Sandefur misses the point of the AEI article: a prudent board would have done everything in its power to avoid a $1 million attorneys' fee judgment.

Since the newly elected Dover Board planned to repeal the ID policy anyway, it made no sense to wait to repeal that policy until after the court had rendered an opinion in the case. Their choice guaranteed that if the school district lost the case, then it would have to pay plaintiffs' attorney fees.

Seth Cooper and Joe Manzari's article raises serious questions about why the anti-ID Dover School Board squandered an opportunity to possibly save the taxpayers' money. To raise this question does not require certainty that the mootness argument would have been successful; even a chance of success -- with no downside risk to the school board -- would render the repeal of the policy desirable.

Without speculating about the personal motivation of the newly elected Dover board, the decision of the new school board members to "wait and see" what the Judge had to say was imprudent, to say the least. It might not seem "fair" that the case could have been mooted--but the conclusion that this could have been a possible outcome is an inescapable one under current case law.

Moreover, it is only "fair" to give a defendant legislative body--in this case a school board representing a very small rural community--the opportunity to modify their behavior by choice if they are making the changes in good faith. Otherwise, huge amounts of taxpayer money can go to drain the public coffers. This opportunity would be "fair" for the citizens of Dover. But the Dover CARES school board chose to pass it up.

***As a side note, Sandefur's citation to Justice Ginsburg's Padilla ruling wrongly conflates the 'capable of repetition yet evading review' exception to mootness with the voluntary cessation exception. Furthermore, Justice Ginsburg's view was in dissent, and the majority actually rejected the argument that voluntary cessation should prevent mootness, instead denying cert. even though the government had "voluntarily ceased" the offending conduct.