[UPDATED] Freshwater: Appeal denied

Posted 5 March 2012 by Richard B. Hoppe

Recall that John Freshwater appealed the Knox County Common Pleas Court's affirmation of the Board of Education's termination of his teaching contract. (See also here.) ~~While it is not yet posted~~ It is now posted to the Ohio 5th District Court of Appeal's Opinions page. I received a copy of the Court's decision that was filed just this morning and is signed by the three-judge panel that considered the appeal. It denies Freshwater's appeal in its entirety, affirming the decision of the Knox County Court of Common Pleas that the Board of Education's termination of Freshwater was justified. One quotation to give the flavor:

(32) During the proceedings [the administrative hearing] appellant [Freshwater] was represented by a competent attorney, he was permitted to fully explain his actions, he presented witnesses on his behalf, and he had a full opportunity to challenge the Board's key witnesses. R.C. 3319.16 does not contain any requirement that a teacher be afforded an opportunity to refute the contents of a referee's report in the period between the filing of the report and its acceptance or rejection by the board of education, nor does it provide for an additional hearing before the board if the teacher does not like the results of the hearing before the referee.

Given what I saw in the administrative hearing, I might take issue with the "competent attorney" phrase, but let that be. The Appeals Court ruled that

For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas, Knox County, is affirmed. Costs to appellant.

The Appeals Court did not address several of the questions Freshwater's appeal raised. For example, it did not address Freshwater's claim that he was just "... informing students of various alternative theories without regard to those theories' religious or anti-religious implications." The appeals court did not mention Freshwater's claim that his termination violated his right to free speech and what his appeal called "the subsidiary right of academic freedom." The Appeals Court confined its ruling to the question of whether the Court of Common Pleas "abused its discretion" in affirming the Board's decision, and rejected Freshwater's appeal on that basis. The next step, should Freshwater and the Rutherford Institute take it, is an appeal to the Ohio State Supreme Court. I cannot predict whether that will happen. My intuition is that the Rutherford Institute would like to find a case invoking academic freedom, free speech, and free exercise on the part of a public school teacher that could make its way to the U.S. Supreme Court, but while IANAL, I suspect that Freshwater's case is way too weak for them to risk it on that case.

24 Comments

dalehusband · 5 March 2012

Will this madness ever end? It's like a train wreck that keeps happening in slow motion......over and over again.

John Pieret · 5 March 2012

I might take issue with the “competent attorney” phrase

Well, the legal definition boils down to "didn't drool on the judge/hearing officer so much that it showed up in the record."

Richard B. Hoppe · 5 March 2012

John Pieret said:
I might take issue with the “competent attorney” phrase
Well, the legal definition boils down to "didn't drool on the judge/hearing officer so much that it showed up in the record."

Well, it was a close thing, then. :)

eric · 5 March 2012

The Appeals Court confined its ruling to the question of whether the Court of Common Pleas “abused its discretion” in affirming the Board’s decision, and rejected Freshwater’s appeal on that basis.

IANAL but my understanding is that's what US appeals courts typically do. They look first to see if the lower court followed the law, and if the answer is 'yes,' typically that's it. I don't think its usual for them to second-guess lower courts on matters of fact.

Charley Horse · 5 March 2012

...Costs to appellant.
Wonder what they were?

Doc Bill · 5 March 2012

Could it be that if Freshwater had been represented by an attorney viewed by the appeals court as "incompetent" they might have ruled otherwise? But by calling Hamilton "competent" which is probably is on the Bubba Good Old Boy scale, the court could simply look at the claim and rule on that.

I'm guessing.

anonatheist · 5 March 2012

Regardless of how weak Freshwater's case may seem, it wouldn't surprise me if he and the Rutherford Institute were to appeal to the Ohio Supreme Court. Because they are fueled by religious fervor I don't underestimate the lengths they will go to. Remember, as a nation we're missing two skyscrapers and about three thousand people because of religious inspired extremists.

Kevin B · 6 March 2012

Doc Bill said: Could it be that if Freshwater had been represented by an attorney viewed by the appeals court as "incompetent" they might have ruled otherwise? But by calling Hamilton "competent" which is probably is on the Bubba Good Old Boy scale, the court could simply look at the claim and rule on that. I'm guessing.

Would "incompetent attorney" be a possible reason for the lower court to reopen the proceedings? Ruling that Hamilton is "competent" closes that line of argument. (Since Hamilton is associated with the appeal, would ruling that he is not competent sabotage the appeal itself?)

raven · 6 March 2012

Regardless of how weak Freshwater’s case may seem, it wouldn’t surprise me if he and the Rutherford Institute were to appeal to the Ohio Supreme Court.

Maybe. It really looks like Rutherford has nothing better to do. Since xians make up 76% of the population, including most of the police, prosecutors, and judges, it is hard to find even flimsy cases of xian "persecution". I would guess that a higher court would just refuse to hear the case on the basis that it has received several layers of extensive court and hearings review. At some point, the horse is just dead and beating on it some more isn't going to change that.

cepetit.myopenid.com · 6 March 2012

(1) "Costs" in an appeal are court costs, such as preparing transcripts and copies of the lower court's rulings and printing the briefs... but explicitly excluding attorney's fees. This typically runs about $1800-$2500, but given the length of the hearings could be higher.
My question here is whether Mr Hoppe (or the court itself) said the wrong party gets costs, unless there's a quirk in Ohio procedure that I'm not aware of. When a court says "Costs to x", that ordinarily means x will have its costs of appeal paid by the other side. It's virtually unheard of for the losing side to have its costs paid, particularly in a matter disposed of as "wasn't an abuse of discretion." So, perhaps, does the actual opinion say "Costs to appellee"?

(2) "Competent attorney" is a term of art in appellate practice meaning that "there is no pre-case evidence in the record indicating unfitness to practice." Performance in the particular case is outside that scope; that concerns not "competent", but "effective" (and potentially "malpractice").

(3) Perhaps most important, this case won't be picked up by the US Supreme Court... because there will be an adequate and independent state ground for any appellate decision. Thus, the last potential stop for this one is the Ohio Supreme Court.
This is a difficult distinction that catches a lot of law students and lawyers in practice out, so please bear with me. Although Freshwater tried to raise various First Amendment defenses, he (and his ineffective attorney) did not do so in a way independent of his state-of-Ohio rights and claims. Instead, they tried to twist everything together into one mass... and regardless of the other errors committed by the referee, the referee didn't take the bait, and untwisted them leaving a pure-Ohio-law ground for decision. The arbiter of Ohio law is the Ohio Supreme Court; the US Supreme Court would get involved if, and only if, there was a demonstrated "true conflict" between Ohio and US law, and there is not. Merely shrieking "First Amendment!" does not demonstrate a true conflict... especially in light of specific language in Edwards v. Aguilar that directly refutes Hamilton's claims on Freshwater's behalf.
In short, there simply is no issue of purely federal law here for the US Supreme Court to review. And then there's Freshwater's failure to preserve the issue, but that's one of those eeeeeeeevil civil procedure things that only civil procedure geeks like me pay attention to: Freshwater did not raise the First Amendment defense properly and clearly as an independent issue in front of the Court of Common Pleas, so he has forfeited the argument. None of the other claims/defenses offered there are federal in nature... or, I should say, are passes-the-laugh-test federal in nature.

Richard B. Hoppe · 6 March 2012

The decision itself is now available on the Mount Vernon News site (news story here and PDF of decision). The phrase in the decision is "Costs to appellant." I took that to mean that the costs were assigned to be paid by Freshwater (the appellant), but I'm open to correction. The Mount Vernon News reporter also interpreted it that way.

W. H. Heydt · 6 March 2012

cepetit.myopenid.com said: (1) "Costs" in an appeal are court costs, such as preparing transcripts and copies of the lower court's rulings and printing the briefs... but explicitly excluding attorney's fees. This typically runs about $1800-$2500, but given the length of the hearings could be higher. My question here is whether Mr Hoppe (or the court itself) said the wrong party gets costs, unless there's a quirk in Ohio procedure that I'm not aware of. When a court says "Costs to x", that ordinarily means x will have its costs of appeal paid by the other side. It's virtually unheard of for the losing side to have its costs paid, particularly in a matter disposed of as "wasn't an abuse of discretion." So, perhaps, does the actual opinion say "Costs to appellee"?

IANAL... I can think of two ways "costs to appellant" could be the correct phrase and intent... 1. The Court means "costs [billed] to appellant". 2. Since this is a case of a private individual against a governmental agency (with the implied "deep pockets" thereof), is it possible that the government side has to pay the costs regardless of outcome, so long as the initial appeal isn't considered so ridiculous that the court really, really wants to slap the apellant down? --W. H. Heydt Old Used Programmer

Golfball · 6 March 2012

From my (non-lawyerly) experience with appeals courts and the level of courts below them, "costs to appellant" means that the appellant (Freshwater) is on the hook for paying the court costs, and other associated fees. (In some courts, it's phrased "costs taxed to [party]" where [party] is the person on the hook (or the court is being requested to put that person on the hook)).

cepetit.myopenid.com · 7 March 2012

Richard B. Hoppe said: [snip] The phrase in the decision is "Costs to appellant." I took that to mean that the costs were assigned to be paid by Freshwater (the appellant), but I'm open to correction. The Mount Vernon News reporter also interpreted it that way.

Again, this may be the way Ohio courts do things that is different from elsewhere. As Golfball notes, the usual phrase when naming a party who will be charged the costs is "Costs taxed to x," or something similar; conversely, when appellate courts are stating who will receive reimbursement of costs (especially in multiparty cases), the usual language is "costs to y". And this makes sense procedurally, too, because one can't reimburse costs without producing an invoice... so the next actual step is presentation of the invoice at the direction of the court. All of that said, I just wanted to clarify point 1, because I be confused.

Richard B. Hoppe · 7 March 2012

I be confused, too. :)

On another note, Accountability in the Media, a local (to Knox County) blog operated by a fundamentalist Christian supportive of Freshwater, complains that Judge Otho Eyster of the Court of Common Pleas did not exhaustively review the reasoning for his decision to affirm the Board of Education's action, and the appellate court should have taken that into account, or so I infer. Accountability goes on to cite several sites and law review articles critical of the U.S. judicial system.

Kevin B · 7 March 2012

Richard B. Hoppe said: I be confused, too. :) On another note, Accountability in the Media, a local (to Knox County) blog operated by a fundamentalist Christian supportive of Freshwater, complains that Judge Otho Eyster of the Court of Common Pleas did not exhaustively review the reasoning for his decision to affirm the Board of Education's action, and the appellate court should have taken that into account, or so I infer. Accountability goes on to cite several sites and law review articles critical of the U.S. judicial system.

There really doesn't seem to be any reason why Judge Eyster needed to write more than he did. He read the paperwork and didn't find anything wrong with it. He would have needed to provide a justification if he had overruled the Board. As it is, all the citing, etc, was already in the papers. Was Judge Eyster already acting as a appeal judge and, if so, surely his freedom to re-interpret the conclusions of the Referee and the Board was heavily restricted?

Richard B. Hoppe · 7 March 2012

Kevin B said: There really doesn't seem to be any reason why Judge Eyster needed to write more than he did. He read the paperwork and didn't find anything wrong with it. He would have needed to provide a justification if he had overruled the Board. As it is, all the citing, etc, was already in the papers. Was Judge Eyster already acting as a appeal judge and, if so, surely his freedom to re-interpret the conclusions of the Referee and the Board was heavily restricted?

In this kind of case the Common Pleas Court operates as a sort of hybrid. While its main duty is to review the administrative hearing record to ascertain whether the evidence did in fact support the outcome, the Court also has the option (though it's not a requirement) to hold additional hearings. Eyster concluded on the basis of the record of the admin hearing that the referee's recommendation and the Board's action was consistent with the evidence, and thus affirmed the decision. Freshwater wanted the Common Pleas Court to hold additional hearings, but the Court denied that in view of the extensive admin hearing record.

robert van bakel · 8 March 2012

I sit in slack-jawed amazement. I have been following Richard's posts since the opening salvoes when Freshwater, the board and Hamilton were smarmy, confident, and basically saying, via inept actions, and more inept words, 'bring it on'. So it was 'brung'. I had hoped he would slide away with his seedy lawyer and accept defeat. Now however, I want the whole thing to reach its innevitable, financially disasterous (for Freshwater), and keystone copian ending. With the entire religious right in a pile up of bruised, bloodied, and self-pittying bodies. (Just the tiniest comment on UD would be funny, they have been Mum on the subject through the whole legal process, perhaps because compitent judges were again involved.)

Chris Lawson · 8 March 2012

I think it's been said here before, but Freshwater seems to be playing the role of Monty Python's Black Knight.

Chris Lawson · 8 March 2012

Changing topics, but having nowhere better to put this, has anyone heard anything about the Coppedge vs. JPL case mentioned today on Pharyngula?

ksplawn · 8 March 2012

Chris Lawson said: Changing topics, but having nowhere better to put this, has anyone heard anything about the Coppedge vs. JPL case mentioned today on Pharyngula?

Only what's been posted on Sensuous Curmudgeon, Pharyngula, and the latest post at ENandV (that last one is a hefty exercise in distortion, historical revisionism, and lies by omission crammed into 5 paragraphs). I would like to see some coverage here but, for now, I don't know what else there is to say that hasn't been said elsewhere.

Kevin B · 9 March 2012

ksplawn said:
Chris Lawson said: Changing topics, but having nowhere better to put this, has anyone heard anything about the Coppedge vs. JPL case mentioned today on Pharyngula?
Only what's been posted on Sensuous Curmudgeon, Pharyngula, and the latest post at ENandV (that last one is a hefty exercise in distortion, historical revisionism, and lies by omission crammed into 5 paragraphs). I would like to see some coverage here but, for now, I don't know what else there is to say that hasn't been said elsewhere.

Reading the documents up on the NCSE website, it looks as if there are some distinct parallels with the Freshwater case. Coppedge got into a quarrel over Proposition 8 and insulted the person who disagreed with his position on the Prop. This resulted in a complaint about him, and his behaviour in a subsequent meeting, where he basically failed to acknowledge that he was at fault, made it clear to his manager why there had been repeated complaints about his work - particularly his failure to do what he was asked to do, rather than what he wanted to do.... Again, it is a case of a silly incident, and a failure to accept amendment, provoking management into "having the drains up."

Marion Delgado · 18 March 2012

The Freshwater case will outlive us all, including John Freshwater. After the DI succeeds in reverting us back to the world before methodological materialism, monks of the church of St. Freshwater will be illuminating the depositions. Walter M. Miller would be pleased.

Richard B. Hoppe · 18 March 2012

Marion Delgado said: The Freshwater case will outlive us all, including John Freshwater. After the DI succeeds in reverting us back to the world before methodological materialism, monks of the church of St. Freshwater will be illuminating the depositions. Walter M. Miller would be pleased.

Now that brings back some memories!