First, for the sake of the reader and of West, let's first look at Judge
Jones legal decision to deny the FTE to intervene. After all, understanding the
legal rules is essential in understanding (the legal propriety of) Judge Jones'
So let's first look at Intervention as of right
Intervention as of Right. Upon timely application anyone shall be permitted
to intervene in an action: (2) when the applicant claims an interest relating
to the property or transaction which is the subject of the action and the
applicant is so situated that the disposition of the action may as a
practicable matter impair or impede the applicant's ability to protect that
interest, unless the applicant's interest is adequately represented by
The Judge points out that under the rules of the 3rd Circuit Court
of Appeals, all of the following four tests need to be satisfied
the Third Circuit Court of Appeals has instructed that Fed.R.Civ.P. 24(a)
entitles an applicant to intervene if the applicant establishes that all
prongs of the following four-part test are satisfied: (1) the application for
intervention is timely; (2) the applicant has a sufficient interest in the
litigation; (3) the interest may be affected or impaired, as a practical
matter by the disposition of the action; and (4) the interest is not
adequately represented by an existing party in the
The Judge found that the FTE failed the timeliness requirement
We are in agreement with the parties that the advanced stage of this
litigation renders FTE's application untimely as it will cause prejudice,
delay, and added expense to the parties. In that regard, we conclude that
application of the Mountain Top factors, which we previously delineated, to
this case demonstrates that FTE's Motion is untimely.
However, the judge still applies the additional three tests
Although the Applicant carries the burden of proving all four parts of the
test under Fed.R.Civ.P. 24(a) and has failed to do so with respect to the
timeliness of intervention, in the exercise of completeness, we will analyze
the remaining three prongs of the test in this narrative. See Alcan Aluminum,
25 F.3d at n.9; see
Again the Judge, in the exercise of completeness, considers all the relevant
tests. Judge Jones' ruling to deny FTE's motion sets the standard for his
thorough ruling in the Kitzmiller case.
The three other tests are
Interest in the litigation
We do not find that the scenario raised by FTE, specifically that if this
Court should find IDT to be the equivalent of creation science, which will
result in the loss of hundreds of thousands of dollars to FTE, constitutes a
"legal interest as distinguished from interests of a general and indefinite
character." Harris, 820 F.2d at 601; see also United States v. American
Telephone and Telegraph Co., 642 F.2d 1285, 1292 (D.C. Cir.
In addition, we find that Applicant has not demonstrated a "tangible threat
to a legally cognizable interest[.]" Harris, 820 F.2d at 601. Although FTE may
be quite concerned with the outcome of the litigation in this case, the
afore-mentioned concern does not rise to the level of a significantly
protectable interest in the
litigation warranting intervention as a party.
Therefore, Applicant has not demonstrated an interest in the litigation to
justify intervention as of right pursuant to Fed.R.Civ.P.
Potential Impairment of the Interest
Once an applicant for intervention has established that he or she has a
sufficient legal interest in the underlying dispute, the applicant must also
show that the interest is in jeopardy in the lawsuit. Alcan Aluminum, 25 F.3d
at 1181, n.9; see also Harris, 820 F.2d at 596. In making such a
determination, the court is obligated to assess the "practicable consequences
of the litigation," and "may consider any significant legal effect on the
applicants' interest." Id. at 601.
As we have previously determined that seeking to intervene, to prevent
potentially significant economic loss from potential decline in books sales to
public educational institutions, is not a cognizable interest in the
litigation which warrants intervention as of right on the part of Applicant,
it logically follows that we need not determine whether Applicant's alleged
interest as so expressed is placed in jeopardy by the case sub judice.
Accordingly, the Applicant has failed to prove this part of the intervention
as of right test.
Moreover, to the extent that the stare decisis effect of an order declaring
intelligent design instruction to be unconstitutional in a public school might
require FTE to redirect its marketing efforts, that indirect, remote, and
attenuated effect fails to "impair" FTE's interest.
Representation by Existing Party in Litigation
After careful consideration of the parties' submissions and the record,
including but not limited to the three typical reasons constituting inadequate
representation as specified by the Third Circuit Court of Appeals, we do not
find that any interest alleged by Applicant is not being adequately
represented by Defendants in this action for the additional reasons that
follow. See Hoots, 672
Having rejected intervention as of right, the court continues to examine
"Applicant's alternative argument that the Court grant their intervention
application under Fed.R.Civ.P. 24(b), which provides for permissive
The Judge observes that:
Whether to grant permissive intervention is within the Court's discretion,
but in making this determination, courts consider whether the proposed
intervenors will add anything to the litigation.
Additionally, if the interests of the proposed intervenors are already
represented in the litigation, courts deny such application to intervene.
Hoots, 672 F.2d at 1136.
Both the Dover School Board and the Plaintiffs were objecting to FTE's
Both parties oppose permissive intervention. Plaintiffs submit that FTE's
defense would present a question of fact in common with that already asserted
in the lawsuit, namely, whether intelligent design is fundamentally a
religious proposition rather than a scientific one. Plaintiffs maintain that
FTE will not add any defense to the instant case that Defendants have not
already demonstrated that they will present. (Pls.' Br. Opp. Mot. Intervene at
20). Likewise, Defendants oppose permissive intervention by FTE and argue that
they adequately represent any generalized interest in IDT that is shared with
FTE. (Defs.' Br. Opp. Mot. Intervene at 5).
West observed that "something needs to be said about the legal and
ethical propriety of Judge Jones placing so much weight on this early textbook
in his judicial opinion". Given the legal history, it should be clear
that the Judge acted within legal guidelines and rules. Again, it seems to me
that West could have saved himself much embarassment if he had familiarized
himself with the legal history. West may disagree with the legal rulings,
especially since the ruling disagree so much with the Discovery Institute's
position, but to call into question the legal and ethical propriety of the Judge
without showing any familiarity with the legal landscape seems rather peculiar
Finally, West seems to make a big deal about the judge limiting the FTE's
Amicus Brief submission to 5000 words. West seems to be unfamiliar with the Local Rules
of the Court, especially rule LR 7.8 Contents and Length of Pretrial
(1) Unless the requirements of Local Rule 7.8 (b)(2) and (3) are met, no
brief shall exceed fifteen (15) pages in length.
(2) A brief may exceed
fifteen (15) pages so long as it does not exceed 5,000 words.(3) No brief
exceeding the limits described in this rule may be filed without prior
authorization. Any motion seeking such authorization shall specify the length
of the brief requested and shall be filed at least two (2) working days
before the brief is due.
Again, Judge Jones is following the local rules of the Court. This rule
applies equally to all parties involved. Did the FTE even file a motion to
exceed the length limits? I have found no record of this in the Amicus Filings.
In fact, in ruling on the filings of the DI Amicus brief, the Judge showed significant judicial restraint
Despite the fact that amici failed to formally request leave of Court
before filing the submissions, we will review them absent the request of
formal leave as we do not find it necessary to elevate form over
 We do note however, that the better practice is that a motion seeking
leave of Court to file an amicus brief should be filed concurrently with any
future amici submissions.
The rich legal history of the FTE
intervention shows that questioning the Judge's legal propriety in this case
seems a hard one to actually support. I have yet to locate the
Defendants' oppostion to FTE's motion to intervene. Any hints would be
Originally posted on the Panda's Thumb weblog.