Scott Pilutik

I am an attorney and consultant living and working in Manhattan, focusing primarily on church/state constitutional law. I'm a recognized expert on the Church of Scientology organization. I also have strong interests in intellectual property law where it intersects with emerging media, and free speech.

I support the efforts of the Americans United for Separation of Church and State, the Freedom From Religion Foundation, the National Lawyers Guild, the ACLU, Creative Commons, and the Electronic Frontier Foundation. I am a member of the New York County Lawyers Association and the New York State Bar Association. I also enjoy (watching) hockey and (doing) photograhy.

Online I can be found on Facebook, Twitter. My resume can be viewed here. I can be reached by phone at 212.645.6241 or by e-mail at pilutik[at]gmail.com.

The Recent Dover Motions

Just took a peek at the latest Dover motions and I’ll try to detangle for those sensible enough to not wade through all this crap. In short, on January 17th, a group of Dover parents filed a motion to intervene [pdf] as defendants (in addition to the already represented defendants, the Dover Area School District (“DASD”)).

There are practical non-legal reasons for intervention here – a second set of defendants comes with a second set of lawyers that Plaintiffs must contend with. And all that entails, so I’ll refrain from imaginging on your behalf.

In order to successfully intervene in federal court, an intervenor, according to Rule 24, must claim a sufficient legal interest that 1) may be impeded by an adverse outcome, and 2) is not already adequately represented by existing parties.

The intervening parents are arguing that their childrens’ First Amendment rights are impacted by their being prevented from learning about Intelligent Design. They rely on two SCOTUS cases for support of this notion – Island Trees v. Pico, 457 US 853 (1982) (not to be confused with the band Pico vs. Island Trees – I’m not even kidding) and Stanley v. Georgia, 394 US 557 (1969) (I’ll let Plaintiffs explain why they don’t apply below).

Intervenors must also show that their interests are not adequately represented by the current party they seek to side with. Usually, intervenors are plaintiffs, for reasons that are probably plain to see – If my former partner sues a debtor who owed both of us money as a result of a single gone-bad transaction, I need to intervene to protect my interests, because former partner’s account of events may not be the same as mine. And Intervenors argue that their interests are significantly different than the DASD, without ever saying why. Their entire argument on this front is one conclusory paragraph. Their only substantive argument, actually, is relegated to a footnote – that Plaintiffs have suggested on television that DASD should capitulate to avoid paying Plaintiff’s legal fees, and thus the case might not be settled on its merits. That they’d put their only real argument in a footnote is testimony to their chances of success on this prong.

Before I get to Plaintiff’s opposition to the newly proposed defendants, I’ll mention that the Thomas More Center (lawyer’s for DASD) welcomes this intervention, and filed a short response in support. Their entire argument is less than a page and merely reiterates the Intervenor’s main point, that being Pico.

So what does Pico say? Pico held that public schools cannot remove school books simply because they dislike the ideas in them. But Pico only pertains to removal of material from school libraries and has nothing to do with school curricula. The other case the intervenors rely on, Stanley, recognized a right to read obscene material in the privacy of one’s own home.

The Plaintiffs opposition response [pdf] (reported lightly here by the York Daily Record), demolishes the weak intervenor arguments. After pointing out the inapplicability of Pico and Stanley, and that there is no recognized First Amendment right to require that their children be taught X instead of Y, it lands the hardest blows on the inadequacy of of representation prong. Key paragraph comes at the end:

Adequacy of representation depends on whether the named party represents the interests of the would-be intervenor, not on whether Mondaymorning quarter-backing might suggest a different litigation strategy. [...] Applicants have not even made a minimal showing of inadequate representation here.

And then the memo gets the real reason this crap is being foisted on the court:

Applicants’ participation as parties would add nothing to this litigation but more lawyers, more schedules to consider, more discovery requests, depositions, and briefs on the same subjects, more time at trial and, as a result, more costs for both the plaintiffs and defendants.

Yep.