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Freshwater: Catching up

Posted 7 April 2010 by Richard B. Hoppe

The last two months in the Freshwater affair in Mt. Vernon, OH, have been quiet. Apparently R. Kelly Hamilton, Freshwater's lawyer, has been going through the "new evidence" that supposedly turned up in a black bag in a parking lot, hoping to find something to exonerate Mr. Freshwater. Rumor has it that the administrative hearing will resume late this month, though there's no word yet on whether it will be closed so the mystery witness can testify in safety from the ravening evolutionist hordes. There has been some progress on another front, though. More below the fold. Recall that in June 2008 the Dennis family brought a federal suit against Freshwater and the school district. Freshwater filed a counter-claim (pdf) alleging that false and defamatory statements were made against him and that some statements made about him were slanderous. It also alleged that the plaintiffs (the Dennis family) intentionally caused Freshwater emotional distress. The district settled with the Dennis family, paying legal fees and a token amount for damages. Freshwater remained a defendant in the Dennis's suit. The federal judge has now ruled on motions for summary judgments by both sides. The Dennis family had moved to summarily dismiss Freshwater's counter-claim, while Freshwater had moved to dismiss the original suit. In essence, the judge has ruled that he will allow the Dennis family's suit against Freshwater to proceed while dismissing Freshwater's counter-claim that alleged defamation and intentional infliction of emotional distress. I hear that the trial on that suit is scheduled to begin in late May. One interesting bit buried in the judgment is that Freshwater is classed as a "limited purpose public figure" with respect to this matter, and therefore cannot claim damages for public statements about him concerning it unless he can show actual malice on the part of the person making the statement. Even though I have a standing offer of pro bono representation by one of the most respected First Amendment litigators in the country should it become necessary, I was personally a little concerned about that question since I've written some pretty critical stuff about Freshwater's behavior. But that definition of Freshwater considerably raises the bar he must jump to allege defamation and/or slander. All the legal documents except the most recent ruling are here, and I welcome any qualified legal commentary. I presume the judge's opinion briefly described here will go up there soon.

32 Comments

MikeMa · 7 April 2010

This appears to be unqualified good news. The Dennis' can move forward, Freshwater cannot.

At what point does this become the longest running farce administrative hearing in Ohio or US history?

RBH · 7 April 2010

MikeMa said: This appears to be unqualified good news. The Dennis' can move forward, Freshwater cannot. At what point does this become the longest running farce administrative hearing in Ohio or US history?
AFAIK the NCAA has no official records of duration, but it has to be approaching the record.

RBH · 7 April 2010

The summary judgment is now up on NCSE's site.

amb · 7 April 2010

to MikeMa:
No reason to cross out "farce".
That was the most appropriate way to describe the whole thing.

Rilke's Granddaughter · 7 April 2010

Superb reporting. I find this whole thing fascinating; but the incredibly slow pace of this hearing seems odd. Is it usually this slow?

RBH · 7 April 2010

Rilke's Granddaughter said: Superb reporting. I find this whole thing fascinating; but the incredibly slow pace of this hearing seems odd. Is it usually this slow?
From what I can determine these sorts of administrative hearings do run long, on the order of a year or so, but this one may be up in record territory. Freshwater's attorney, R. Kelly Hamilton, seems to be dragging it out as much as he can, possibly to try to increase pressure on the Board for a settlement on Freshwater's terms. I'm pretty certain that's not going to happen.

Rilke's Granddaughter · 7 April 2010

Presumably somebody is paying Hamilton; I've forgotten who, but one suspects they might eventually get tired of paying.
RBH said:
Rilke's Granddaughter said: Superb reporting. I find this whole thing fascinating; but the incredibly slow pace of this hearing seems odd. Is it usually this slow?
From what I can determine these sorts of administrative hearings do run long, on the order of a year or so, but this one may be up in record territory. Freshwater's attorney, R. Kelly Hamilton, seems to be dragging it out as much as he can, possibly to try to increase pressure on the Board for a settlement on Freshwater's terms. I'm pretty certain that's not going to happen.

Jesse · 7 April 2010

Rilke's Granddaughter said: Superb reporting. I find this whole thing fascinating farceinating; but the incredibly slow pace of this hearing seems odd. Is it usually this slow?
The whole thing is just bizarre. Burning crosses on kids is just creepy and that cloak and dagger black bag crap is crap. What do they think? That somebody dropping off some mysterious black bag is going to roll back time and stop Freshwater from burning a cross on a kid? Whiskey Tango Foxtrot?

Jesse · 7 April 2010

And I still think that the cult like weird behavior is more in line with people who worship Xenu than anything else.

RBH · 7 April 2010

Rilke's Granddaughter said: Presumably somebody is paying Hamilton; I've forgotten who, but one suspects they might eventually get tired of paying.
Reportedly Freshwater has put up his farm (about 40 acres) as security for Hamilton's fees. At least that's what he said under oath (if that means anything) in one of his depositions.

Debbie Henthorn · 8 April 2010

RBH said: The summary judgment is now up on NCSE's site.
Thanks for the link and as always, the updates! Was it just me or did Judge Frost actually use the word "sham" in his decision? It's been almost 2 years since the story broke - seems like a lifetime! In reality, 2 years isn't really that long to have no conclusion. How long did Dover last?

Jaime A. Headden · 8 April 2010

Jesse said: And I still think that the cult like weird behavior is more in line with people who worship Xenu than anything else.
This statement is like saying that Christians worship Satan. This isn't what you meant, I am sure, but there is so much wrong with this.

Jesse · 8 April 2010

Jaime A. Headden said:
Jesse said: And I still think that the cult like weird behavior is more in line with people who worship Xenu than anything else.
This statement is like saying that Christians worship Satan. This isn't what you meant, I am sure, but there is so much wrong with this.
What are you talking about? Have you not noticed that there is a lot of cult like behavior surrounding Freshwater and that behavior is very, very strange?

Paul Burnett · 8 April 2010

Debbie Henthorn said: How long did Dover last?
39 days. The trial lasted September 26, 2005, to November 4, 2005; the findings of fact and decision ruling were issued on December 20, 2005.

Mike in Ontario, NY · 8 April 2010

I love the phrase "limited purpose public figure". It sounds like the name of an insignificant super hero from The Tick cartoon universe. I want to get myself a "Limited Purpose Public *Action* Figure", with pull-string responses like "it wasn't a cross, it was an X", and "I didn't do it anyway" and "teach both sides", complete with Kung-Fu bible grip.

Richard, thanks for the updates. Courtesy of your excellent recent podcast interview, I now have a voice to put with the posts.

MikeMa · 8 April 2010

Jaime A. Headden said:
Jesse said: And I still think that the cult like weird behavior is more in line with people who worship Xenu than anything else.
This statement is like saying that Christians worship Satan. This isn't what you meant, I am sure, but there is so much wrong with this.
Nothing at all wrong with this. No mention of satan but if you recognize satan in what Freshwater and his cult followers have done and are doing, then that is your perception. I believe Freshwater has broken the law in the name of his god. I believe the courts will think so too.

raven · 8 April 2010

In essence, the judge has ruled that he will allow the Dennis family’s suit against Freshwater to proceed while dismissing Freshwater’s counter-claim that alleged defamation and intentional infliction of emotional distress.
This is pretty bad news for Freshwater. A summary judgement. Those are hard to get. It means (IANAL), that the federal judge concluded that there was almost no way that Freshwater's lawsuit had any chance of winning. The feds didn't do that for the Dennis family lawsuit. Not looking good for Freshwater and the fundies.

fnxtr · 8 April 2010

Mike in Ontario, NY said: I love the phrase "limited purpose public figure". It sounds like the name of an insignificant super hero from The Tick cartoon universe. I want to get myself a "Limited Purpose Public *Action* Figure", with pull-string responses like "it wasn't a cross, it was an X", and "I didn't do it anyway" and "teach both sides", complete with Kung-Fu bible grip.
heh heh. Nice. "Let's Make A Difference!"

raven · 8 April 2010

Apparently R. Kelly Hamilton, Freshwater’s lawyer, has been going through the “new evidence” that supposedly turned up in a black bag in a parking lot, hoping to find something to exonerate Mr. Freshwater.
There are two mutually contradictory stories here. The school board and their lawyer say they aren't missing anything like a box of documents. The Freshwaterites claim it was at the school and someone stole it and gave it to them. They can't both be true.
Rumor has it that the administrative hearing will resume late this month, though there’s no word yet on whether it will be closed so the mystery witness can testify in safety from the ravening evolutionist hordes.
Unlikely that the meeting would be closed without a hearing on whether it should be closed. Our whole system of justice is based on fair and open trials. The only exceptions made are witnesses in fear of their life or juveniles. Neither seem applicable here. It would be astonishing if they allowed secret witnesses. This isn't the Soviet Union or the Spanish Inquisition.

RBH · 8 April 2010

raven said: Unlikely that the meeting would be closed without a hearing on whether it should be closed. Our whole system of justice is based on fair and open trials. The only exceptions made are witnesses in fear of their life or juveniles. Neither seem applicable here. It would be astonishing if they allowed secret witnesses. This isn't the Soviet Union or the Spanish Inquisition.
Bear in mind that this is not a judicial process but is a "quasi-judicial" process (the phrase is from the federal court ruling on the motions linked above) and the referee has broad latitude with respect to the hearing procedure. For example, he over-rode a federal court in breaching the anonymity of the Dennis family and prohibited recording devices in the hearing room. However, I don't think he'll close the hearing for this witness. Bear in mind also that this is a small community, and lurking reporters are not going to miss someone tiptoeing into the hearing building with a bag over his head. :)

william e emba · 8 April 2010

Teacher termination for gross misbehavior can and does take a long time in many school districts. In NYC, for example, teachers facing accusations are taken out of the classroom, and assigned full work days in a rather boring room if they don't voluntarily resign. Many linger there for years. There was a rather depressing article about this in the NYT Sunday magazine a few months ago.

RBH · 8 April 2010

william e emba said: Teacher termination for gross misbehavior can and does take a long time in many school districts. In NYC, for example, teachers facing accusations are taken out of the classroom, and assigned full work days in a rather boring room if they don't voluntarily resign. Many linger there for years. There was a rather depressing article about this in the NYT Sunday magazine a few months ago.
The former superintendent here testified in the hearing that he had tried to find an alternative assignment for Freshwater some years ago, but couldn't find anything else he was qualified for.

william e emba · 8 April 2010

I should clarify that the "boring" room I mentioned is just that: a room with nothing to do. You don't need qualifications.

william e emba · 8 April 2010

The "reassignment centers", usually called "rubber rooms", are where NYC sends teachers the district claims should not be teaching. The article I think I was thinking of was actually in the New Yorker, but I've read about them in the NYT also.

The occupants range from criminals to incompetents to whistleblowers. They draw their full salary, so long as they check in and check out on the regular teacher schedule.

ed · 8 April 2010

william e emba said: The "reassignment centers", usually called "rubber rooms", are where NYC sends teachers the district claims should not be teaching. The article I think I was thinking of was actually in the New Yorker, but I've read about them in the NYT also. The occupants range from criminals to incompetents to whistleblowers. They draw their full salary, so long as they check in and check out on the regular teacher schedule.
A teacher of Freshwater's experience wouldn't want that. No captive audience to indoctrinate. That just wouldn't do.

phantomreader42 · 8 April 2010

Jaime A. Headden said:
Jesse said: And I still think that the cult like weird behavior is more in line with people who worship Xenu than anything else.
This statement is like saying that Christians worship Satan. This isn't what you meant, I am sure, but there is so much wrong with this.
Well, "Satan" is an imaginary being asserted to exist by christian dogma, a being that, according to some christians, is responsible for practically everything that has ever happened in human history, a being that is constantly spoken of in lurid, over-the-top stories. So yeah, some varieties of christians DO worship Satan.

CMB · 8 April 2010

The same judge who issued the rulings on the summary judgements has also ruled that Freshwater cannot sue the school board's attorney just because he (David Millstone) was hired to represent the school board.

Here is a link to the Columbus Dispatch article.

http://www.dispatch.com/live/content/local_news/stories/2010/04/08/freshwater-ruling.html?sid=101

Also see the comments. A poster familiar to us all is putting his pro-Freshwater spin on things.

Sivi · 8 April 2010

Er, what Jaime A. Headden meant is that Scientologists view Xenu as a great evil figure, not as a benevolent deity, and that people were getting their theology wrong.

Bbuff · 8 April 2010

"Freshwater’s attorney, R. Kelly Hamilton, seems to be dragging it out as much as he can, possibly to try to increase pressure on the Board for a settlement on Freshwater’s terms. I’m pretty certain that’s not going to happen. "

I think another strategy in the Freshwater camp was to try to seat enough Board members to rule in his favor on the termination hearing. He successfully placed Steve Thompson and also had Bob Kirk, another strong Freshwater supporter, running at the last election. With two Freshwater disciples on the Board, he would only have needed one swing vote to restore his position. Fortunately, that didn't happen. Yet.

Ritchie Annand · 8 April 2010

What Jaime was trying to say is that Scientologists do not worship Xenu - Xenu is the evil galactic overlord that consigned creatures on space planes to be blown up on Earth... I mean Teegeeack.

So yeah, it would be like saying Christians worship Satan :)

I don't know if Scientologists worship anything per se apart from ridding themselves of the ghosts of dead former comrades who are now attached to them and dragging them down.

RBH · 9 April 2010

Another federal court ruling this week is relevant to the Freshwater case. Recall that Freshwater included the Board's attorney, David Millstone, as a defendant in his federal suit. The court has ruled that Millstone cannot be included as a defendant in Freshwater's suit merely because he represents the Board as an attorney and the court therefore removed Millstone as a defendant.

Greystone · 10 April 2010

" I have a standing offer of pro bono representation by one of the most respected First Amendment litigators in the country should it become necessary. "

That is absolutely awesome.